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					                    federal register
8–16–99
Vol. 64   No. 157                      Monday
Pages 44397–44642                      August 16, 1999




                                                         1
II                             Federal Register / Vol. 64, No. 157 / Monday, August 16, 1999




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                                    .

                                                                                                                                      2
                                                                                                                          III

Contents                                                    Federal Register
                                                            Vol. 64, No. 157

                                                            Monday, August 16, 1999



Agency for Toxic Substances and Disease Registry            Defense Nuclear Facilities Safety Board
NOTICES                                                     NOTICES
Meetings:                                                   Meetings; Sunshine Act, 44512–44513
 Scientific Counselors Board, 44527
                                                            Employment and Training Administration
Agricultural Research Service                               NOTICES
PROPOSED RULES                                              Adjustment assistance:
National Agricultural Library; loan and copying fees,         AMP Inc., 44540
    44633–44636                                               Eaton Corp., 44540
                                                              Johansen Brothers Shoe Co., Inc., 44541
Agriculture Department                                        Johnson & Johnson Medical, Inc., et al., 44541
See Agricultural Research Service                             Leica Microsystems Inc., 44541
See Food and Nutrition Service                                Mead Paper Corp., 44541–44542
See Forest Service                                            Phelps Dodge et al., 44542–44543
                                                              REDA, A Camco Co., 44543
                                                            Grants and cooperative agreements; availability, etc.:
Air Force Department                                          Job Training Partnership Act—
NOTICES
                                                                H-1B technical skill training programs, 44543–44554
Meetings:                                                   NAFTA transitional adjustment assistance:
 Air University Board of Visitors, 44512                      Horner Flooring Co., Inc., 44555
                                                              Thompson Crown Wood Products, 44555
Centers for Disease Control and Prevention                    Trim Master, Inc., 44555
NOTICES
Meetings:                                                   Energy Department
 Public Health Service Activities and Research at DOE       See Federal Energy Regulatory Commission
      Sites Citizens Advisory Committee, 44527–44528        PROPOSED RULES
                                                            Classified matter or special nuclear material; criteria and
Children and Families Administration                            procedures for determining access eligibility, 44433–
NOTICES                                                         44444
Agency information collection activities:                   NOTICES
 Proposed collection; comment request, 44528–44529          Meetings:
                                                             Environmental Management Site-Specific Advisory
Commerce Department                                               Board—
See International Trade Administration                         Oak Ridge Reservation, TN, 44513
See National Oceanic and Atmospheric Administration
NOTICES                                                     Environmental Protection Agency
Agency information collection activities:                   RULES
 Submission for OMB review; comment request, 44478–         Air programs; approval and promulgation; State plans for
     44480                                                      designated facilities and pollutants:
                                                              North Dakota; correction, 44420–44421
                                                            Air quality implementation plans; approval and
Committee for the Implementation of Textile Agreements
                                                                promulgation; various States:
NOTICES
                                                              Connecticut, 44411–44415
Cotton, wool, and man-made textiles:
                                                              Minnesota, 44408–44411
  Hong Kong, 44510
                                                              New Hampshire, 44417–44420
                                                              Wisconsin, 44415–44417
Commodity Futures Trading Commission                        PROPOSED RULES
NOTICES                                                     Air quality implementation plans; approval and
Privacy Act:                                                    promulgation; various States:
  Systems of records, 44511–44512                             Connecticut, 44450–44451
Senior Executive Service:                                     Minnesota, 44450
  Performance Review Board; membership, 44512                 New Hampshire, 44451–44452
                                                              Wisconsin, 44451
Congressional Budget Office                                 Clean Air Act:
NOTICES                                                       Interstate ozone transport reduction—
Balanced Budget and Emergency Deficit Control                   Nitrogen oxides trading program; Section 126 petitions;
    Reaffirmation Act (Gramm-Rudman-Hollings):                       findings of significant contribution and
  Sequestration update report for 2000 FY; transmittal to            rulemaking, 44452
      Congress and OMB, 44512                               Superfund program:
                                                              National oil and hazardous substances contingency
Defense Department                                                 plan—
See Air Force Department                                        National priorities list update, 44452–44460
IV                     Federal Register / Vol. 64, No. 157 / Monday, August 16, 1999 / Contents


NOTICES                                                        Southwestern Public Service Co., 44516
Agency information collection activities:                      Stingray Pipeline Co., 44516
  Proposed collection; comment request, 44518–44521            Tennessee Gas Pipeline Co., 44516–44517
Drinking water:                                                Trailblazer Pipeline Co., 44517
  Public water supply supervision program—                     TransColorado Gas Transmission Co., 44517
    South Dakota, 44521–44522                                  UtiliCorp United Inc., 44517–44518
Grants and cooperative agreements; availability, etc.:
  Border XXI Program; U.S.-Mexico border; La Paz             Federal Highway Administration
      Agreement, 44522–44523                                 PROPOSED RULES
Meetings:                                                    Motor carrier safety standards:
  Children’s Health Protection Advisory Committee, 44524      Transportation Equity Act for 21st Century;
                                                                   implementation—
Executive Office of the President                               Safety fitness procedures, 44460–44470
See Presidential Documents
See Science and Technology Policy Office                     Federal Housing Finance Board
                                                             PROPOSED RULES
Federal Aviation Administration                              Federal home loan bank system:
RULES                                                          Advance participations; sales of whole advances, 44444–
Class B and Class D airspace; correction, 44578                    44446
Class E airspace, 44397–44400
PROPOSED RULES                                               Federal Reserve System
Airworthiness directives:                                    PROPOSED RULES
  Pratt & Whitney, 44446–44448                               Equal credit opportunity (Regulation B):
NOTICES                                                        Revision, 44581–44631
Agency information collection activities:                    NOTICES
  Submission for OMB review; comment request, 44572–         Banks and bank holding companies:
      44573                                                    Change in bank control, 44525
Exemption petitions; summary and disposition, 44573            Formations, acquisitions, and mergers, 44526
Passenger facility charges; applications, etc.:                Formations, acquisitions, and mergers; correction, 44526
  Akron-Canton Regional Airport, OH, 44573–44574               Permissible nonbanking activities, 44526
  Detroit City Airport, MI, 44574–44575
                                                             Fish and Wildlife Service
Federal Communications Commission                            PROPOSED RULES
RULES                                                        Endangered and threatened species:
Common carrier services:                                       Golden sedge, 44470–44475
  Local exchange carriers provision of interexchange         NOTICES
      services; regulatory treatment, 44423–44426            Comprehensive conservation plans; availability, etc.:
NOTICES                                                        Kern National Wildlife Refuge Complex, CA, 44531–
International Settlements Policy and associated filing             44532
     requirements; countries exempt from ISP requirements,
     list, 44524–44525                                       Food and Drug Administration
                                                             RULES
Federal Emergency Management Agency                          Food additives:
RULES                                                          Adjuvants, production aids, and sanitizers—
Flood insurance; communities eligible for sale:                 Chrome antimony titanium buff rutile (C.I. Pigment
  Various States, 44421–44423                                       Brown 24), 44407–44408
NOTICES                                                         Nickel antimony titanium yellow rutile (C.I. Pigment
Disaster loan areas:                                                Yellow 5), 44397–44398
  Iowa, 44525                                                NOTICES
  Tennessee, 44525                                           Agency information collection activities:
                                                               Submission for OMB review; comment request, 44529–
Federal Energy Regulatory Commission                               44530
RULES                                                        Food additive petitions:
Interstate Commerce Act:                                       Caudill Seed Co., Inc., 44530
  Oil pipeline regulations; revisions, 44400–44405
NOTICES                                                      Food and Nutrition Service
Applications, hearings, determinations, etc.:                NOTICES
 California Independent System Operator Corp., 44513         Meetings:
 Canyon Creek Compression Co., 44513–44514                    Maternal, Infant, and Fetal Nutrition National Advisory
 Garden Banks Gas Pipeline Co., LLC, 44514                         Council, 44477
 MIGC, Inc., 44514
 Natural Gas Pipeline Co. of America, 44514                  Forest Service
 Northbrook New York, LLC, 44514–44515                       NOTICES
 NRG Power Marketing, Inc., et al., 44515                    Environmental statements; notice of intent:
 Pacific Gas & Electric Co., 44515                             Winema National Forest, OR, 44477–44478
 PG&E Gas Transmission, Northwest Corp., 44515–44516
 Reliant Energy Gas Transmission Co.; correction, 44578      Health and Human Services Department
 Sonat Energy Services Co. et al., 44516                     See Agency for Toxic Substances and Disease Registry
                       Federal Register / Vol. 64, No. 157 / Monday, August 16, 1999 / Contents                        V


See   Centers for Disease Control and Prevention             National Oceanic and Atmospheric Administration
See   Children and Families Administration                   RULES
See   Food and Drug Administration                           Fishery conservation and management:
See   National Institutes of Health                            Alaska; fisheries of Exclusive Economic Zone—
                                                                  Northern rockfish, 44431
Interior Department                                               Sablefish, 44432
See Fish and Wildlife Service                                International fisheries regulations:
See Land Management Bureau                                     Inter-American Tropical Tuna Commission;
See National Park Service                                           recommendations; implementation plan, 44428–
See Surface Mining Reclamation and Enforcement Office               44431
                                                             PROPOSED RULES
International Trade Administration                           Fishery conservation and management:
NOTICES                                                        West Coast States and Western Pacific fisheries—
Antidumping:                                                     Western Pacific Coral Reef Ecosystem and bottomfish
  Corrosion-resistant carbon steel flat products from—               and seamount groundfish, 44475–44476
    Japan, 44483–44488                                       NOTICES
Antidumping and countervailing duties:                       Coastal zone management program and estuarine
  Crude petroleum oil products from—                             sanctuaries:
    Various countries, 44480–44482                             Minnesota; Lake Superior coastal program, 44501–44502
Countervailing duties:                                       Committees; establishment, renewal, termination, etc.:
  Hot-rolled lead and bismuth carbon steel products from—      Billfish and Highly Migratory Species Fisheries Advisory
    Germany, 44489                                                  Panels, 44503–44504
  Pasta from—                                                Fishery conservation and management:
    Italy, 44489–44496                                         Alaska; fisheries of Exclusive Economic zone—
  Welded carbon steel pipes and tubes and welded carbon          Prohibited species donation program, 44502–44503
       steel line pipe from—                                 Meetings:
    Turkey, 44496–44501                                        International Commission on Conservation of Atlantic
                                                                    Tunas, U.S. Section Advisory Committee; correction,
International Trade Commission                                      44504
NOTICES
                                                               North Pacific Fishery Management Council, 44504–44505
Import investigations:                                       New Bedford Harbor Trustee Council; request for
  Carbon steel butt-weld pipe fittings from—                     restoration ideas for New Bedford Harbor, MA, 44505–
    Various countries, 44536–44537                               44509
  Crude petroleum oil products from—                         Permits:
    Various countries, 44537                                   Marine mammals, 44509–44510
  Granular polytetrafluoroethylene resin from—
                                                             National Park Service
    Italy and Japan, 44537–44538
                                                             NOTICES
  Live cattle from—
                                                             Environmental statements; availability, etc.:
    Canada, 44538–44539
                                                               Big Cypress National Preserve, FL, 44532–44533
                                                               Lyndon B. Johnson National Historical Park, TX, 44533–
Labor Department
                                                                   44535
See Employment and Training Administration
NOTICES
                                                             Meetings:
Agency information collection activities:                      Delaware Water Gap National Recreation Area Citizen
 Submission for OMB review; comment request, 44539–                Advisory Commission, 44535
     44540                                                   Native American human remains and associated funerary
                                                                 objects:
                                                               Los Angeles County Museum of Natural History, CA;
Land Management Bureau
                                                                   inventory, 44535–44536
NOTICES
Meetings:                                                    Nuclear Regulatory Commission
 Resource Advisory Councils—                                 NOTICES
   Northwest Colorado, 44532                                 Environmental statements; availability, etc.:
                                                               Michigan Natural Resources Department, 44555–44557
National Highway Traffic Safety Administration
NOTICES                                                      Nuclear Waste Technical Review Board
Motor vehicle safety standards; exemption petitions, etc.:   NOTICES
 General Motors Corp., 44575                                 Meetings:
 W.F. Mickey Body Co., Inc., 44575–44576                      Yucca Mountain, NV, repository, 44557–44558
National Institutes of Health                                Presidential Documents
NOTICES                                                      EXECUTIVE ORDERS
Meetings:                                                    Biobased products and bioenergy; development and
 National Center for Complementary and Alternative               promotion (EO 13134), 44637–44642
      Medicine, 44530
 National Institute on Alcohol Abuse and Alcoholism,         Public Health Service
      44530–44531                                            See Agency for Toxic Substances and Disease Registry
 Scientific Review Center, 44531                             See Centers for Disease Control and Prevention
VI                   Federal Register / Vol. 64, No. 157 / Monday, August 16, 1999 / Contents


See Food and Drug Administration                              Surface Transportation Board
See National Institutes of Health                             NOTICES
                                                              Railroad services abandonment:
Research and Special Programs Administration                    Norfolk Southern Railway Co., 44576–44577
RULES
Hazardous materials:
 Hazardous materials transportation—                          Textile Agreements Implementation Committee
   Harmonization with UN recommendations,                     See Committee for the Implementation of Textile
       International Maritime Dangerous Goods Code, and           Agreements
       International Civil Aviation Organization; 44426–
       44428
   correction, 44578–44579,                                   Toxic Substances and Disease Registry Agency
                                                              See Agency for Toxic Substances and Disease Registry
Science and Technology Policy Office
NOTICES
                                                              Transportation Department
National innovation system; Federal policy; call for issues
                                                              See Federal Aviation Administration
    papers, 44524
                                                              See Federal Highway Administration
Securities and Exchange Commission                            See National Highway Traffic Safety Administration
NOTICES                                                       See Research and Special Programs Administration
Agency information collection activities:                     See Surface Transportation Board
  Proposed collection; comment request, 44558
  Submission for OMB review; comment request, 44558–
       44559
Self-regulatory organizations; proposed rule changes:         Separate Parts In This Issue
  National Securities Clearing Corp., 44569–44571
Applications, hearings, determinations, etc.:                 Part II
  BHF Finance (Delaware) Inc., 44559–44560                    Federal Reserve System, 44581–44631
  Chapman Funds, Inc., et al., 44560–44562
  Dow Target Variable Fund LLC, 44563–44565
  First Commonwealth Fund, Inc., 44565–44567                  Part III
  WNC Housing Tax Credit Fund VI, L.P., Series 7 and 8,       Department of Agriculture, Agricultural Research Service,
       et al., 44567–44569                                        44633–44636
State Department
NOTICES                                                       Part IV
Arms Export Control Act:                                      The President, 44637–44642
  Export licenses; Congressional notifications, 44571–44572

Surface Mining Reclamation and Enforcement Office
PROPOSED RULES                                                Reader Aids
Permanent program and abandoned mine land reclamation         Consult the Reader Aids section at the end of this issue for
    plan submissions:                                         phone numbers, online resources, finding aids, reminders,
  Indiana, 44448–44450                                        and notice of recently enacted public laws.
                                   Federal Register / Vol. 64, No. 157 / Monday, August 16, 1999 / Contents   VII

CFR PARTS AFFECTED IN THIS ISSUE

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

3CFR
Executive Orders:
13134...............................44639
7 CFR
Proposed Rules:
505...................................44634
10 CFR
Proposed Rules:
710...................................44433
12 CFR
Proposed Rules:
202...................................44582
935...................................44444
14 CFR
71 (5 documents) ...........44397,
    44398, 44399, 44400, 44578
Proposed Rules:
39.....................................44446
18 CFR
3.......................................44400
341...................................44400
342...................................44400
346...................................44400
357...................................44400
362...................................44400
385...................................44400
21 CFR
178 (2 documents) .........44406,
                                        44407
30 CFR
Proposed Rules:
914...................................44448
40 CFR
52 (4 documents) ...........44408,
               44411, 44415, 44417
62.....................................44420
Proposed Rules:
52 (5 documents) ...........44450,
                           44451, 44452
97.....................................44452
300 (4 documents) .........44452,
               44454, 44456, 44458
44 CFR
64.....................................44421
47 CFR
64.....................................44423
49 CFR
172 (2 documents) .........44426,
                                       44578
173...................................44426
Proposed Rules:
385...................................44460
390...................................44460
50 CFR
300...................................44428
679 (2 documents) .........44431,
                                      44432
Proposed Rules:
17.....................................44470
660...................................44475
                                                                                                                                44397

Rules and Regulations                                                                         Federal Register
                                                                                              Vol. 64, No. 157

                                                                                              Monday, August 16, 1999



This section of the FEDERAL REGISTER               The official docket may be examined        regulation will become effective on the
contains regulatory documents having general    in the Office of the Regional Counsel for     date specified above. After the close of
applicability and legal effect, most of which   the Central Region at the same address        the comment period, the FAA will
are keyed to and codified in the Code of        between 9:00 a.m. and 3:00 p.m.,              publish a document in the Federal
Federal Regulations, which is published under   Monday through Friday, except Federal         Register indicating that no adverse or
50 titles pursuant to 44 U.S.C. 1510.
                                                holidays. An informal docket may also         negative comments were received and
The Code of Federal Regulations is sold by      be examined during normal business            confirming the date on which the final
the Superintendent of Documents. Prices of      hours in the Air Traffic Division at the      rule will become effective. If the FAA
new books are listed in the first FEDERAL       same address listed above.                    does receive, within the comment
REGISTER issue of each week.                    FOR FURTHER INFORMATION CONTACT:              period, an adverse or negative comment,
                                                Kathy Randolph, Air Traffic Division,         or written notice of intent to submit
                                                Airspace Branch, ACE–520C, Federal            such a comment, a document
DEPARTMENT OF TRANSPORTATION                    Aviation Administration, 601 East 12th        withdrawing the direct final rule will be
                                                Street, Kansas City, MO 64106;                published in the Federal Register, and
Federal Aviation Administration
                                                telephone: (816) 426–3408.                    a notice of proposed rulemaking may be
14 CFR Part 71                                  SUPPLEMENTARY INFORMATION: The FAA            published with a new comment period.
                                                has developed GPS RWY 13 and GPS              Comments Invited
[Airspace Docket No. 99–ACE–37]                 RWY 31 SIAPs to serve the Bill Martin
                                                Memorial Airport, MO. The amendment              Althought this action is in the form of
Amendment to Class E Airspace; Ava,             to Class E airspace at Ava, MO, will          a final rule and was not preceded by a
MO                                              provide additional controlled airspace        notice of proposed rulemaking,
                                                at and above 700 feet AGL in order to         comments are invited on this rule.
AGENCY: Federal Aviation
                                                contain the new SIAPs within                  Interested persons are invited to
Administration (FAA), DOT.
                                                controlled airspace, and thereby              comment on this rule by submitting
ACTION: Direct final rule; request for          facilitate separation of aircraft operating   such written data, views, or arguments
comments.                                       under Instrument Flight Rules. The            as they may desire. Communications
SUMMARY: This action amends the Class
                                                amendment at Bill Martin Memorial             should identify the Rules Docket
E airspace area at Bill Martin Memorial         Airport, MO, will provide additional          number and be submitted in triplicate to
Airport, Ava, MO. The FAA has                   controlled airspace for aircraft operating    the address specified under the caption
developed Global Positioning System             under IFR. The area will be depicted on       ADDRESSES. All communications
(GPS) Runway (RWY) 13 and GPS RWY               appropriate aeronautical charts. Class E      received on or before the closing date
31 Standard Instrument Approach                 airspace areas extending upward from          for comments will be considered, and
Procedures (SIAPs) to serve Bill Martin         700 feet or more above the surface of the     this rule may be amended or withdrawn
Memorial Airport, MO. Additional                earth are published in paragraph 6005 of      in light of the comments received.
controlled airspace extending upward            FAA Order 7400.9F, dated September            Factual information that supports the
from 700 feet Above Ground Level                10, 1998, and effective September 16,         commenter’s ideas and suggestions is
(AGL) is needed to accommodate these            1998, which is incorporated by                extremely helpful in evaluating the
SIAPs and for Instrument Flight Rules           reference in 14 CFR 71.1. The Class E         effectiveness of this action and
(IFR) operations at this airport. The           airspace designation listed in this           determining whether additional
enlarged area will contain the new GPS          document will be published                    rulemaking action would be needed.
RWY 13 and GPS RWY 31 SIAPs in                  subsequently in the Order.
                                                                                                 Comments are specifically invited on
controlled airspace.                            The Direct Final Rule Procedure               the overall regulatory, economic,
   The intended effect of this rule is to          The FAA anticipates that this              environmental, and energy-related
provide controlled Class E airspace for         regulation will not result in adverse or      aspects of the rule that might suggest a
aircraft executing GPS RWY 13 and GPS           negative comment and, therefore, is           need to modify the rule. All comments
RWY 31 SIAPs, and to segregate aircraft         issuing it as a direct final rule. Previous   submitted will be available, both before
using instrument approach procedures            actions of this nature have not been          and after the closing date for comments,
in instrument conditions from aircraft          controversial and have not resulted in        in the Rules Docket for examination by
operating in visual conditions.                 adverse comments or objections. The           interested persons. A report that
DATES: This direct final rule is effective      amendment will enhance safety for all         summarizes each FAA-public contact
on 0901 UTC, November 4, 1999.                  flight operations by designating an area      concerned with the substance of this
   Comments for inclusion in the Rules          where VFR pilots may anticipate the           action will be filed in the Rules Docket.
Docket must be received on or before            presence of IFR aircraft at lower                Commenters wishing the FAA to
September 23, 1999.                             altitudes, especially during inclement        acknowledge receipt of their comments
ADDRESSES: Send comments regarding              weather conditions. A greater degree of       submitted in response to this rule must
the rule in triplicate to: Manager,             safety is achieved by depicting the area      submit a self-addressed, stamped
Airspace Branch, Air Traffic Division,          on aeronautical charts. Unless a written      postcard on which the following
ACE–520, Federal Aviation                       adverse or negative comment, or a             statement is made: ‘‘Comments to
Administration, Docket Number 99–               written notice of intent to submit an         Docket No. 99–ACE–37.’’ The postcard
ACE–37, 601 East 12th Street, Kansas            adverse or negative comment is received       will be date stamped and returned to the
City, MO 64106.                                 within the comment period, the                commenter.
44398               Federal Register / Vol. 64, No. 157 / Monday, August 16, 1999 / Rules and Regulations

Agency Findings                                  (Lat 36°58′11′′N., long. 92°40′39′′W.)        Administration, Docket Number 99–
                                               Dogwood VORTAC                                  ACE–38, 601 East 12th Street, Kansas
   The regulations adopted herein will           (Lat 37°01′24′′N., long. 92°52′37′′W.)
not have substantial direct effects on the                                                     City, MO 64106.
                                                 That airspace extending upward from 700          The official docket may be examined
States, on the relationship between the        feet above the surface within a 6.3-mile
national government and the States, or                                                         in the Office of the Regional Counsel for
                                               radius of Bill Martin Memorial Airport and
on the distribution of power and                                                               the Central Region at the same address
                                               within 1.8 miles each side of the 107° radial
responsibilities among the various             of the Dogwood VORTAC extending from the        between 9:00 a.m. and 3:00 p.m.,
levels of government. Therefore, in            6.3-mile radius to the VORTAC and within        Monday through Friday, except Federal
accordance with Executive Order 12612,         2.6 miles each side of the 142° bearing from    holidays. An informal docket may also
it is determined that this final rule does     the Bilmart NDB extending from the 6.3-mile     be examined during normal business
                                               radius to 7.4 miles southeast of the airport.   hours in the Air Traffic Division at the
not have sufficient federalism
implications to warrant the preparation        *     *     *      *     *                      same address listed above.
                                                 Issued in Kansas City, MO, on August 5,       FOR FURTHER INFORMATION CONTACT:
of a Federalism Assessment.
                                               1999.                                           Kathy Randolph, Air Traffic Division,
   The FAA has determined that this
regulations is noncontroversial and            Thomas G. Klocek,                               Airspace Branch, ACE–520C, Federal
unlikely to result in adverse or negative      Acting Manager, Air Traffic Division, Central   Aviation Administration, 601 East 12th
comments. For the reasons discussed in         Region.                                         Street, Kansas City, MO 64106;
the preamble, I certify that this              [FR Doc. 99–21029 Filed 8–13–99; 8:45 am]       telephone: (816) 426–3408.
regulation (1) is not a ‘‘significant          BILLING CODE 4910–13–M                          SUPPLEMENTARY INFORMATION: The FAA
regulatory action’’ under Executive                                                            has developed GPS RWY 17R and GPS
Order 12866; (2) is not a ‘‘significant                                                        RWY 35L SIAPs to serve the Lyons-Rice
rule’’ under Department of                     DEPARTMENT OF TRANSPORTATION                    County Memorial Airport, KS. The
Transportation (DOT) Regulatory                                                                amendment to Class E airspace at Lyons,
                                               Federal Aviation Administration
Policies and Procedures (44 FR 11034,                                                          KS, will provide additional controlled
February 26, 1979); and (3) if                 14 CFR Part 71                                  airspace at and above 700 feet AGL in
promulgated, will not have a significant                                                       order to contain the new SIAPs within
economic impact, positive or negative,         [Airspace Docket No. 99–ACE–38]                 controlled airspace, and thereby
on a substantial number of small entities                                                      facilitate separation of aircraft operating
                                               Amendment to Class E Airspace;
under the criteria of the Regulatory                                                           under Instrument Flight Rules. The
                                               Lyons, KS
Flexibility Act.                                                                               amendment at Lyons-Rice County
                                               AGENCY: Federal Aviation                        Municipal Airport, KS, will provide
List of Subject in 14 CFR Part 71
                                               Administration (FAA), DOT.                      additional controlled airspace for
 Airspace, Incorporation by reference,         ACTION: Direct final rule; request for          airspace operating under IFR. The area
Navigation (air).                              comments.                                       will be depicted on appropriate
Adoption of the Amendment                                                                      aeronautical charts. Class E airspace
                                               SUMMARY:    This action amends the Class        areas extending upward from 700 feet or
  Accordingly, the Federal Aviation            E airspace area at Lyons-Rice County            more above the surface of the earth are
Administration amends 14 CFR part 71           Municipal Airport, Lyons, KS. The FAA           published in paragraph 6005 of FAA
as follows:                                    has developed Global Positioning                Order 7400.9F, dated September 10,
                                               System (GPS) Runway (RWY) 17R and               1998, and effective September 16, 1998,
PART 71—DESIGNATION OF CLASS A,                GPS RWY 35L Standard Instrument                 which is incorporated by reference in 14
CLASS B, CLASS C, CLASS D, AND                 Approach Procedures (SIAPs) to serve            CFR 71.1. The Class E airspace
CLASS E AIRSPACE AREAS;                        Lyons-Rice County Municipal Airport,            designation listed in this document will
AIRWAYS; ROUTES; AND REPORTING                 KS. Additional controlled airspace              be published subsequently in the Order.
POINTS                                         extending upward from 700 feet above
                                               Ground Level (AGL) is needed to                 The Direct Final Rule Procedure
  1. The authority citation for part 71
continues to read as follows:                  accommodate these SIAPs and for                    The FAA anticipates that this
                                               Instrument Flight Rules (IFR) operations        regulation will not result in adverse or
  Authority: 49 U.S.C. 106(g), 40103, 40113,   at this airport. The enlarged area will         negative comment and, therefore, is
40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959–
                                               contain the new GPS RWY 17R and GPS             issuing it as a direct final rule. Previous
1963 Comp., p. 389.
                                               RWY 35L SIAPs in controlled airspace.           actions of this nature have not been
§ 71.1       [Amended]                            The intended effect of this rule is to       controversial and have not resulted in
  2. The incorporation by reference in         provide controlled Class E airspace for         adverse comments or objections. The
14 CFR 71.1 of Federal Aviation                aircraft executing GPS RWY 17R and              amendment will enhance safety for all
Administration Order 7400.9F, Airspace         GPS RWY 35L SIAPs, and to segregate             flight operations by designating an area
Designations and Reporting Points,             aircraft using instrument approach              where VFR pilots may anticipate the
dated September 10, 1998, and effective        procedures in instrument conditions             presence of IFR aircraft at lower
September 16, 1998, is amended as              from aircraft operating in visual               altitudes, especially during inclement
follows:                                       conditions.                                     weather conditions. A greater degree of
                                               DATES: This direct final rule is effective      safety is achieved by depicting the area
Paragraph 6005 Class E airspace areas          on 0901 UTC, November 4, 1999.                  on aeronautical charts. Unless a written
extending upward from 700 feet or more            Comments for inclusion in the Rules
above the surface of the earth.
                                                                                               adverse or negative comment, or a
                                               Docket must be received on or before            written notice of intent to submit an
*        *      *    *    *                    September 23, 1999.                             adverse or negative comment is received
ACE MO E5 Ava, MO [Revised]                    ADDRESSES: Send comments regarding              within the comment period, the
Ava, Bill Martin Memorial Airport, MO          the rule in triplicate to: Manager,             regulation will become effective on the
  (Lat 36°58′19′′N., long. 92°40′55′′W.)       Airspace Branch, Air Traffic Division,          date specified above. After the close of
Bilmart NDB                                    ACE–520, Federal Aviation                       the comment period, the FAA will
              Federal Register / Vol. 64, No. 157 / Monday, August 16, 1999 / Rules and Regulations                                44399

publish a document in the Federal            not have sufficient federalism                     Issued in Kansas City, MO, on August 5,
Register indicating that no adverse or       implications to warrant the preparation          1999.
negative comments were received and          of a Federalism Assessment.                      Thomas G. Klocek,
confirming the date on which the final         The FAA has determined that this               Acting Manager, Air Traffic Division, Central
rule will become effective. If the FAA       regulation is noncontroversial and               Region.
does receive, within the comment             unlikely to result in adverse or negative        [FR Doc. 99–21030 Filed 8–13–99; 8:45 am]
period, an adverse or negative comment,      comments. For the reasons discussed in           BILLING CODE 4910–13–M
or written notice of intent to submit        the preamble, I certify that this
such a comment, a document                   regulation (1) is not a ‘‘significant
withdrawing the direct final rule will be    regulatory action’’ under Executive              DEPARTMENT OF TRANSPORTATION
published in the Federal Register, and       Order 12866; (2) is not a ‘‘significant
a notice of proposed rulemaking may be       rule’’ under Department of                       Federal Aviation Administration
published with a new comment period.         Transportation (DOT) Regulatory
Comments Invited                             Policies and Procedures (44 FR 11034,            14 CFR Part 71
   Although this action is in the form of    February 26, 1979); and (3) if
a final rule and was not preceded by a       promulgated, will not have a significant         [Airspace Docket No. 99–ACE–26]
notice of proposed rulemaking,               economic impact, positive or negative,
comments are invited on this rule.           on a substantial number of small entities        Amendment to Class E Airspace;
Interested persons are invited to            under the criteria of the Regulatory             Rolla/Vichy, MO
comment on this rule by submitting           Flexibility Act.
                                                                                              AGENCY:Federal Aviation
such written data, views, or arguments       List of Subjects in 14 CFR Part 71               Administration, DOT.
as they may desire. Communications
should identify the Rules Docket              Airspace, Incorporation by reference,           ACTION:  Direct final rule; confirmation of
number and be submitted in triplicate to     Navigation (air).                                effective date.
the address specified under the caption
                                             Adoption of the Amendment
ADDRESSES. All communications                                                                 SUMMARY:   This document confirms the
received on or before the closing date         Accordingly, the Federal Aviation              effective date of a direct final rule which
for comments will be considered, and         Administration amends 14 CFR part 71             revises Class E airspace at Rolla/Vichy,
this rule may be amended or withdrawn        as follows:                                      MO.
in light of the comments received.
Factual information that supports the        PART 71—DESIGNATION OF CLASS A,                  DATES: The direct final rule published at
commenter’s ideas and suggestions is         CLASS B, CLASS C, CLASS D, AND                   64 FR 31118 is effective on 0901 UTC,
extremely helpful in evaluating the          CLASS E AIRSPACE AREAS;                          September 9, 1999.
effectiveness of this action and             AIRWAYS; ROUTES; AND REPORTING                   FOR FURTHER INFORMATION CONTACT:
determining whether additional               POINTS                                           Kathy Randolph, Air Traffic Division,
rulemaking action would be needed.                                                            Airspace Branch, ACE–520C, Federal
   Comments are specifically invited on        1. The authority citation for part 71          Aviation Administration, 601 East 12th
the overall regulatory, economic,            continues to read as follows:                    Street, Kansas City, Missouri 64106;
environmental, and energy-related              Authority: 49 U.S.C. 106(g), 40103, 40113,     telephone: (816) 426–3408.
aspects of the rule that might suggest a     40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959–
need to modify the rule. All comments        1963 Comp., p. 389.                              SUPPLEMENTARY INFORMATION:     The FAA
submitted will be available, both before                                                      published this direct final rule with a
and after the closing date for comments,     § 71.1       [Amended]                           request for comments in the Federal
in the Rules Docket for examination by         2. The incorporation by reference in           Register on June 10, 1999 (64 FR 31118).
interested persons. A report that            14 CFR 71.1 of Federal Aviation                  The FAA uses the direct final
summarizes each FAA-public contact           Administration Order 7400.9F, Airspace           rulemaking procedure for a non-
concerned with the substance of this         Designations and Reporting Points,               controversial rule where the FAA
action will be filed in the Rules Docket.    dated September 10, 1998, and effective          believes that there will be no adverse
   Commenters wishing the FAA to             September 16, 1998, is amended as                public comment. This direct final rule
acknowledge receipt of their comments        follows:                                         advised the public that no adverse
submitted in response to this rule must                                                       comments were anticipated, and that
submit a self-addressed, stamped             Paragraph 6005 Class E airspace areas            unless a written adverse comment, or a
postcard on which the following              extending upward from 700 feet or more           written notice of intent to submit such
                                             above the surface of the earth.                  an adverse comment, were received
statement is made: ‘‘Comments to
Docket No. 99–ACE–38.’’ The postcard         *        *      *    *   *                       within the comment period, the
will be date stamped and returned to the     ACE KS E5 Lyons, KS [Revised]                    regulation would become effective on
commenter.                                                                                    September 9, 1999. No adverse
                                             Lyons-Rice County Municipal Airport, KS
                                                (Lat. 38°20′34′′N., long. 98°13′37′′W.)       comments were received, and thus this
Agency Findings
                                             Lyons-NDB                                        notice confirms that this direct final rule
   The regulations adopted herein will          (Lat. 38°20′50′′N., long. 98°13′37′′W.)       will become effective on that date.
not have substantial direct effects on the      That airspace extending upward from 700         Issued in Kansas City, MO on August 5,
States, on the relationship between the      feet above the surface within a 6.5-mile         1999.
national government and the States, or       radius of Lyons-Rice Municipal Airport and
on the distribution of power and                                                              Thomas G. Klocek,
                                             within 2.6 miles each side of the 348° bearing
responsibilities among the various           from the Lyons NDB extending from the 6.5-       Acting Manager, Air Traffic Division, Central
levels of government. Therefore, in          mile radius to 7.4 miles northwest of the        Region.
accordance with Executive Order 12612,       airport.                                         [FR Doc. 99–21035 Filed 8–13–99; 8:45 am]
it is determined that this final rule does   *        *      *    *   *                       BILLING CODE 4910–13–M
44400           Federal Register / Vol. 64, No. 157 / Monday, August 16, 1999 / Rules and Regulations

DEPARTMENT OF TRANSPORTATION                    DEPARTMENT OF ENERGY                       in the Public Reference Room or
                                                                                           remotely via Internet through FERC’s
Federal Aviation Administration                 Federal Energy Regulatory                  Home Page using the RIMS link or the
                                                Commission                                 Energy Information Online icon. User
14 CFR Part 71                                                                             assistance is available at 202–208–2222,
                                                18 CFR Parts 3, 341, 342, 346, 357, 362,   or by E-mail to rimsmaster@ferc.fed.us.
[Airspace Docket No. 99–ACE–24]
                                                385                                          Finally, the complete text on diskette
                                                [Docket No. RM99–1–000; Order No. 606]     in WordPerfect format may be
Amendment to Class E Airspace;                                                             purchased from the Commission’s copy
Emporia, KS                                     Revisions to Oil Pipeline Regulations      contractor, RVJ International, Inc. RVJ
                                                                                           International, Inc. is located in the
AGENCY:Federal Aviation                         Issued August 4, 1999.                     Public Reference Room at 888 First
Administration, DOT.                            AGENCY:  Federal Energy Regulatory         Street, N.E., Washington, D.C. 20426.
                                                Commission.
                                                                                             Before Commissioners: James J. Hoecker,
ACTION:  Direct final rule; confirmation of     ACTION: Final rule.                        Chairman; Vicky A. Bailey, William L.
effective date.                                                                                                               ´
                                                                                           Massey, Linda Breathitt, and Curt Hebert, Jr.
                                                SUMMARY:    The Federal Energy
SUMMARY:   This document confirms the           Regulatory Commission (Commission) is      I. Introduction
effective date of a direct final rule which     revising its regulations governing oil        The Federal Energy Regulatory
revises Class E airspace at Emporia, KS.        pipelines. The regulations to be           Commission (Commission) is revising
                                                modified or deleted are located in 18      its regulations governing oil pipelines at
DATES: The direct final rule published at       CFR Parts 3, 341, 342, 343, 346, 357,      18 CFR Parts 341, 342, 343, and 346 to
64 FR 33012 is effective on 0901 UTC,           362, and 385. These revisions are          remove various provisions that are
September 9, 1999.                              intended to clarify the Commission’s       either outdated or in conflict with other
FOR FURTHER INFORMATION CONTACT:                regulations and bring them up to date.     oil pipeline regulations. The goals of
Kathy Randolph, Air Traffic Division,           EFFECTIVE DATE: The regulations are        these revisions are to clarify the
Airspace Branch, ACE–520C, Federal              effective September 15, 1999.              Commission’s regulations and bring
Aviation Administration, 601 East 12th          ADDRESSES: Federal Energy Regulatory       them up to date. The Commission is
                                                Commission, 888 First Street, N.E.,        also revising 18 CFR Parts 3, 357, 362,
Street, Kansas City, Missouri 64106;
                                                Washington, D.C. 20426.                    and 385 to conform to the other changes
telephone: (816) 426–3408.
                                                                                           adopted here.
                                                FOR FURTHER INFORMATION CONTACT:
SUPPLEMENTARY INFORMATION:     The FAA                                                     II. Background
                                                Travis R. Smith, Office of the General
published this direct final rule with a         Counsel, Federal Energy Regulatory
request for comments in the Federal                                                           Jurisdiction over oil pipelines, as it
                                                Commission, 888 First Street, N.E.,        relates to the establishment of rates or
Register on June 21, 1999 (64 FR 33012).        Washington, D.C. 20426, (202) 208–
The FAA uses the direct final                                                              charges for the transportation of oil by
                                                0696.                                      pipeline or to the establishment of
rulemaking procedure for a non-                 SUPPLEMENTARY INFORMATION: In              valuations for pipelines, was transferred
controversial rule where the FAA                addition to publishing the full text of    from the Interstate Commerce
believes that there will be no adverse          this document in the Federal Register,     Commission (ICC) to the Commission
public comment. This direct final rule          the Commission also provides all           pursuant to sections 306 and 402 of the
advised the public that no adverse              interested persons an opportunity to       Department of Energy Organization Act
comments were anticipated, and that             inspect or copy the contents of this       (DOE Act).1 At the time the DOE Act
unless a written adverse comment, or a          document during normal business hours      transferred jurisdiction over oil pipeline
written notice of intent to submit such         in the Public Reference Room at 888        rates to the Commission, the regulations
as adverse comment, were received               First Street, N.E., Room 2A,               governing oil pipelines were located in
within the comment period, the                  Washington, D.C. 20426.                    the ICC’s regulations at Title 49 of the
regulation would become effective on               The Commission Issuance Posting         Code of Federal Regulations (CFR).
September 9, 1999. No adverse                   System (CIPS) provides access to the       Initially, the Commission ordered that
comments were received, and thus this           texts of formal documents issued by the    the regulations concerning oil pipelines
notice confirms that this direct final rule     Commission from November 14, 1994,         remain in effect until modified by the
will become effective on that date.             to the present. CIPS can be accessed via   Commission. In Order No. 119,2 the
                                                Internet through FERC’s Home Page          Commission started transferring some of
  Issued in Kansas City, MO on August 5,                                                   the ICC’s oil pipeline regulations from
                                                (http://www.ferc.fed.us) using the CIPS
1999.
                                                Link or the Energy Information Online      Title 49 of the Code of Federal
Thomas G. Klocek,                               icon. Documents will be available on       Regulations to the Commission’s
Acting Manager, Air Traffic Division, Central   CIPS in ASCII and WordPerfect 6.1          regulations in Title 18. Parts 357 3 and
Region.                                         format. User assistance is available at    362 4 are among some of the
[FR Doc. 99–21036 Filed 8–13–99; 8:45 am]       202–208–2474 or by E-mail to               Commission’s current regulations that
BILLING CODE 4910–13–M                          cips.master@ferc.fed.us.
                                                                                             1 Department of Energy Organization Act, 42
                                                   This document is also available
                                                                                           U.S.C. 7155 and 7172(b) (1988).
                                                through the Commission’s Records and         2 Regulation of Interstate Oil Pipelines, Order No.
                                                Information Management System              119, 46 FR 9043 (Jan. 28, 1981), FERC Stats. & Regs.
                                                (RIMS), an electronic storage and          (Regulations Preambles, 1977–1981) ¶ 30,226 (Dec.
                                                retrieval system of documents submitted    19, 1980).
                                                                                             3 Part 357 addresses the annual special or
                                                to and issued by the Commission after
                                                                                           periodic reports that carriers subject to Part I of the
                                                November 16, 1981. Documents from          Interstate Commerce Act are required to file.
                                                November 1995 to the present can be          4 18 CFR Part 362 sets forth the various

                                                viewed and printed. RIMS is available      requirements for valuation.
                  Federal Register / Vol. 64, No. 157 / Monday, August 16, 1999 / Rules and Regulations                                         44401

were adopted from this initial transfer.              new ratemaking methodologies, and                   tariff publication containing a joint
In Order No. 225,5 the Commission                     streamlined the Commission’s internal               carrier. Under the proposed revision,
adopted the ICC’s rules pertaining to                 processes for oil pipelines.                        letters of transmittal would be required
paper hearings called the ‘‘modified                     At the time the Commission adopted               to include the address, phone number,
procedure,’’ currently codified at 18                 changes to its ratemaking methodologies             and contact for each joint carrier listed
CFR 385.1404 through 385.1414, and to                 and procedural requirements, it                     in the tariff publication. This is
ex parte communications, presently                    intended that its new regulations would             information that the Commission, as a
located at 18 CFR 385.1415, from 49                   supersede existing procedural rules that            routine matter, has required carriers to
CFR Part 1100. Also, pursuant to Order                were in conflict and do away with those             submit. The Commission concluded that
No. 225, the Commission moved all of                  that were no longer necessary, such as              including it as part of the regulations
its Rules of Practice and Procedure from              those describing the modified                       will inform carriers that such
18 CFR Part 1 to 18 CFR Part 385.                     procedure. The final rules, however, did            information must be included with their
Notwithstanding some limited                          not take steps to remove these outdated             filings and make it unnecessary for
revisions, most of the provisions in 18               regulations. As a result, the current               carriers to supplement their filings later.
CFR Parts 357, 362, and 385 are the                   Commission regulations governing oil                   AOPL supports the Commission’s
same as they were in Title 49.                        pipelines include both recent provisions            proposal to include the foregoing
   The Energy Policy Act of 1992 (Act of              adopted or modified pursuant to the Act             information concerning joint carriers in
1992) required the Commission to                      of 1992 and conflicting regulations                 the transmittal letter for a joint tariff.
promulgate new regulations to provide                 adopted from the ICC which have been                However, AOPL contends that the better
a simplified and generally applicable                 superseded, unutilized, or are                      place for this requirement is in the
ratemaking methodology for oil                        inconsistent.                                       Commission’s regulations on transmittal
pipelines, and to streamline its                         On October 20, 1998, the Commission              letters in section 341.2(c)(1).
procedures in oil pipeline proceedings. 6             issued a Notice of Proposed Rulemaking                 The Commission will adopt the
Pursuant to Congress’ directive in the                in Docket No. RM99–1–000.10 The                     proposed modifications and revise
Act of 1992, the Commission issued                    Commission received comments from                   section 341.2(c)(1), not section 341.7, as
Order No. 561 7 and two companion                     the Association of Oil Pipelines (AOPL).            recommended by AOPL. While section
rulemakings, Order Nos. 571 8 and 572 9.                                                                  341.2(c)(1) is not a perfect fit, since the
                                                      III. Public Reporting Burden
In Order No. 561, the Commission                                                                          modification involves information
established a simplified and generally                   The Commission believes that there               requirements for transmittal letters
applicable index-methodology for oil                  will be no impact on the public                     concerning joint carriers, and section
pipelines to change their rates and also              reporting burden from the elimination               341.2(c)(1) pertains to general
provided alternatives to this                         of outdated and nonessential                        information requirements for transmittal
methodology. In Order No. 571, the                    regulations, and the related                        letters, it appears to be more appropriate
Commission addressed a cost-of-service                modification of other regulations.                  to include it there, rather than in the
rate filing alternative for oil pipelines.            Because the regulations being removed               section on concurrences.
In Order No. 572, the Commission                      are outdated, they effectively ceased
addressed market-based rates for oil                  being a reporting burden years ago. As              B. Part 342
pipelines. These rulemakings also                     for the regulations being modified, they              Part 342 pertains to the methods that
included new rate filing requirements                 are simply clarifying, not augmenting,              may be used to establish initial rates, or
and procedural reforms to reflect the                 reporting requirements.                             change existing rates. Section 342.3
                                                      IV. Discussion                                      discusses rate changes under the
  5 Revisions of Rules of Practice and Procedure to
                                                                                                          indexing methodology. Section
Expedite Trial-Type Hearings, Order No. 225, 47 FR    A. Part 341                                         342.3(b)(1) currently provides:
19014 (May 3, 1982), FERC Stats. & Regs.
(Regulations Preambles, 1982–1985) ¶ 30,358 (Apr.        Part 341 relates to the requirements                Carriers must specify in their letters of
28, 1982).                                            for preparing, filing, and withdrawing              transmittal required in § 341.2(c) of this
  6 The Energy Policy Act of 1992 (Act of 1992)
                                                      oil pipeline tariffs. Section 341.6(3)              chapter the rate schedule to be changed, the
contemplated two rulemakings—one on ratemaking                                                            proposed new rate, the prior rate, and the
methodology and another on streamlined
                                                      pertains to the rules for partial adoption
                                                      by a carrier of another carrier’s tariffs. In       applicable ceiling level for the movement. No
procedures—and established separate deadlines for
their completion. Energy Policy Act of 1992 Pub. L.   the NOPR, the Commission proposed to                other rate information is required to
No. 102–46, Title XVIII, 1801 to 1804, 106 Stat.                                                          accompany the proposed rate change.
                                                      amend this section by removing
2776, 3010–3011 (codified as 42 U.S.C.A. 7172 note                                                          Under the revisions proposed in the
(West Supp. 1995)).
                                                      duplicative language from the provision
  7 Revisions to Oil Pipeline Regulations pursuant    that now requires a carrier to state the            NOPR, this section would require
to Energy Policy Act of 1992, Order No. 561, 58 FR    effective date of an adoption notice                carriers filing for rate changes to include
58753 (Nov. 4, 1993), FERC Stats. & Regs.             twice in a tariff supplement required to            the prior rate ceiling level, in addition
(Regulations Preambles, 1991–1996) ¶ 30,985 (Oct.     be filed with the Commission. The                   to the other information specified, in
22, 1993), order on rehearing and clarification,                                                          their letters of transmittal. Including the
Order No. 561–A, 59 FR 40243 (Aug. 8, 1994) FERC      Commission did not receive any adverse
Stats. & Regs. (Regulations Preambles, 1991–1996)     comments in response to this proposal,              prior ceiling level will provide
¶ 31,000 (July 28, 1994).                             so the Commission will implement this               necessary information for the
  8 Cost-of-Service Reporting and Filing
                                                      modification in its final rule.                     calculation of the index ceiling levels.
Requirements for Oil Pipelines, Order No. 571, 59                                                           Section 342.3(b)(2) addresses the
FR 59137 (Nov. 16, 1994) FERC Stats. & Regs.
                                                         Section 341.7 addresses the
(Regulations Preambles, 1991–1996) ¶ 31,006 (Oct.     requirements for concurrences. The                  information required to be filed by
28, 1994), order on rehearing and clarification,      Commission proposed to modify this                  carriers with their initial rate changes. It
Order No. 571–A, 60 FR 356 (Jan. 4, 1995) FERC        section to specify the information that             currently reads as follows:
Stats. & Regs. (Regulations Preambles, 1991–1996)
¶ 31,012 (Dec. 28, 1994).
                                                      should be included in letters of                       On March 31, 1995, or concurrently with
  9 Market-Based Ratemaking for Oil Pipelines,        transmittal accompanying the filing of a            its first indexed rate change filing made on
Order No. 572, 59 FR 59148 (Nov. 16, 1994), FERC                                                          or after January 1, 1995, whichever first
Stats. & Regs. (Regulations Preambles, 1991–1996)       10 Revisions to Oil Pipeline Regulations, 63 FR   occurs, carriers must file a verified copy of
¶ 31,007 (Oct. 28, 1994), order denying rehearing,    57081 (Oct. 26, 1998), IV FERC Stats. & Regs.       a schedule for calendar years 1993 and 1994
Order No. 572–A, 69 FERC ¶ 61,412 (Dec. 28, 1994).    ¶ 32,537 (Oct. 20 1998).                            containing the information required by page
44402             Federal Register / Vol. 64, No. 157 / Monday, August 16, 1999 / Rules and Regulations

700 of the 1995 edition of FERC Form No. 6.           it necessary to file comments on the             AOPL has pointed out that section
If actual data are not available for calendar         proposal, so the revision adopted here         357.3(b), as proposed in the NOPR,
year 1994 when the rate change filing is              should prove satisfactory.                     contains a clerical error. The proposed
made, the information for calendar year 1994
                                                                                                     section read as follows:
must be comprised of the most recently                C. Part 343
available actual data annualized for the year                                                          Service life data is reported to the
1994. A schedule containing the information
                                                        Part 343 discusses procedural matters        Commission by an oil pipeline company, as
comprised of actual data for calendar year            related to oil pipeline proceedings            necessary, concurrently with a filing made
1994 must be filed not later than March 31,           under part 342. Section 343.2 describes        pursuant to part 347 of this chapter and as
1995. Thereafter, carriers must file page 700         the requirements for filing                    directed during a depreciation rate
as a part of their annual Form No. 6 filing.          interventions, protests, and complaints.       investigation. (emphasis added)
This section directs carriers to file                 The Commission will adopt the NOPR’s
                                                      proposal to correct section 343(c)(4) so       AOPL correctly noted that the word
schedules containing the information                                                                 ‘‘and’’ should really be the word ‘‘or.’’
required by page 700 of the 1995 edition              that it references paragraphs (c)(1), (2),
                                                      or (3) within the section, rather than         Accordingly, for the final rule, the
of FERC Form No. 6. on March 31, 1995,                                                               Commission will adopt the proposal
or concomitantly with its first indexed               paragraphs (b)(1), (2), or (3) as at
                                                      present.                                       and will supplant the word ‘‘and’’ with
rate change filing made on or after                                                                  the word ‘‘or.’’
January 1, 1995, whichever occurs first.              D. Part 346
Because the one-time need for the                                                                    F. Part 362
                                                         Part 346 sets forth the filing
requirements of this section has passed,                                                                Part 362 sets forth the various
                                                      requirements for oil pipelines that seek
the Commission proposed to delete it in                                                              requirements for valuation. Part 362
                                                      to establish cost-of-service rates as
its entirety.                                                                                        came into being as a result of Order No.
   Section 342.3(d)(3) states that a carrier          permitted under Part 342. Section
                                                      346.2(c)(7) states in part: ‘‘If the           119,13 which transferred the ICC’s
must compute its ceiling level each                                                                  valuation section, in addition to several
index year without regard to the rates                presently effective rates are not at the
                                                      maximum ceiling rate established under         other sections pertaining to oil
filed pursuant to this section. In Kaneb                                                             pipelines, from its regulations located at
Pipeline Operating Partnership, L.P.,11               § 342.4(a) of this chapter, then gross
                                                      revenues must also be computed and set         Title 49 of the Code of Federal
and subsequent proceedings, the
                                                      forth as if the ceiling rates were effective   Regulations to the Commission’s
Commission explained that because
                                                      for the 12 month period.’’ The                 regulations at Title 18. In Opinion No.
there are numerous pipelines that file
                                                      Commission will adopt the proposed             154,14 the Commission intimated that it
rates measured in hundredths of a cent,
                                                      revisions to section 346.2(c)(7) to            was considering abandoning the
all ceiling level calculations for all
                                                      correctly reference section 342.3, which       traditional ICC valuation formula;
pipelines should be rounded 12 to the
                                                      is the section that sets forth the indexing    however, the Commission ultimately
nearest hundredth of a cent. As this
                                                      methodology, rather than section               retained the valuation methodology. To
explanation applies to all calculations
                                                      342.4(a), which describes cost-of-service      the contrary, in Opinion No. 154–B,15
by all carriers under section 342.3, the
                                                      rates.                                         the Commission adopted a methodology
NOPR proposed to add this explanation
                                                                                                     that is currently used in oil pipeline rate
to the regulations to assist carriers in              E. Part 357                                    cases. This new methodology is
making accurate and complete filings.
   AOPL considers the proposed changes                   Part 357 concerns the annual special        predicated on a trended original cost
to be positive ones for the oil industry.             or periodic reports that carriers subject      (TOC) rate base and it does not follow
AOPL also suggests including in the                   to Part I of the Interstate Commerce Act       the ICC’s historic valuation rate base.
regulation an example demonstrating                   are required to file. Sections 357.3(a),       Because Opinion No. 154–B rejects the
how the rounding works. At the very                   (b), and (c) discuss the filing                valuation rate base methodology and
least, AOPL requests that the                         requirements for FERC Form No. 73. In          thus eliminates the need for any
Commission include a more detailed                    Order No. 561, the Commission stated           valuation of oil pipelines, the filing of
explanation of the rounding process.                  that it would be the oil pipeline carriers’    valuation reports as now required by
   The Commission will adopt the                      responsibility in the future to perform        Part 362 is no longer necessary. As a
modification to section 342.3 in the                  depreciation studies to establish revised      result, the Commission proposed to
final rule as proposed in the NOPR. The               depreciation rates for oil pipelines. The      remove Part 362 from its regulations.
regulations as revised will include a                 specific requirements for such studies         Order No. 561 removed Parts 360 and
thorough explanation for pipelines to                 were adopted as Part 347 of the                361 pertaining to reporting of data for
use in calculating their ceiling levels.              Commission’s regulations in Order No.          valuation purposes. The proposal in the
Adding further material would add                     571. Section 347.1(e)(5)(x) provides that      NOPR would complete the task of
unnecessary detail to the regulations.                a carrier must submit a Service Life Data      removing unnecessary valuation
Oil pipelines have been calculating their             Form (FERC Form No. 73) if the                 regulations.
ceiling levels for a number of years                  proposed depreciation rate adjustment             AOPL welcomes removal of the rules
under the current regulations, and have               is based on the remaining physical life        on valuation, considering it to be long
done so successfully. The material                    of the properties. The Commission
added here will address the area where                proposed that section 357.3(a) and (b),          13 Regulation of Interstate Oil Pipelines, Order No.

pipelines, for the most part, have                    which address who must file FERC               119, 46 FR 9043 (Jan. 28, 1981), FERC Stats. & Regs.
                                                      Form No. 73 and when the form must             (Regulations Preambles, 1977–1981) ¶ 30,226 (Dec.
miscalculated. No pipelines considered                                                               19, 1980).
                                                      be submitted, be revised to include              14 Farmers Union Central Exchange, Inc. v. FERC,
  11 Kaneb Pipeline Operating Partnership, L.P., 71   filings under section 347.1(e)(5)(x). The      734 F.2d 1486 (D.C. Cir. 1984), cert. denied sub
FERC ¶ 61,409 (1995).                                 Commission also proposed to revise             nom., Williams Pipeline Company v. Farmers
  12 If the third decimal place number is five or     section 357.3(c) to update its mailing         Union Central Exchange, Inc., 105 S.Ct. 507 (1984).
more, the second decimal number should be             address. AOPL considers the proposed           The Commissions’s opinion appears at 21 FERC ¶
rounded up; if the third decimal place number is                                                     61,260 (1982), reh’g denied, 21 FERC ¶ 61,086
four or less, the second decimal place number
                                                      changes to be an appropriate                   (1983).
should be rounded down. Kaneb Pipeline. 71 FERC       clarification and the Commission will            15 Williams Pipeline Company, 31 FERC ¶ 61,377

¶ 61,409 (1995), at p. 62,617 n.6.                    adopt them.                                    (1985).
                  Federal Register / Vol. 64, No. 157 / Monday, August 16, 1999 / Rules and Regulations                                             44403

overdue. The Commission will adopt                     sections 385.1404 through 1414 from                      and will adopt the revisions proposed in
the proposed changes.                                  Part 385.                                                the NOPR.
                                                          AOPL objects to the removal of the                      Some of the Commission’s regulations
G. Part 385                                                                                                     include references to the Oil Pipeline
                                                       modified procedure provisions. AOPL
   Part 385 governs the Commission’s                   contends that inclusion of the rules,                    Board. Section 385.102, the definitions
rules of practice and procedure. Section               even if only used occasionally, may be                   section, contains Oil Pipeline Board
385.101(b)(3) excepts ICC rules from                   of benefit to parties and the Commission                 references in paragraphs (a) and (e)(2).
Part 385 in cases where regulations in                 in rapidly resolving a dispute. AOPL                     Part 3 pertains to organization,
the Commission’s Rules of Practice and                 claims that although the Commission                      operation, information and requests,
Procedure are inconsistent with ICC                    could still order paper hearings when                    and it also refers to the Oil Pipeline
rules that were not replaced by a                      necessary, the Commission would be                       Board. Section 385.502(a)(3), rules
Commission rule or order. Because the                  less likely to do so without a clearly                   concerning the initiation of a hearing,
Commission has promulgated and                         defined template already in place that                   contains an Oil Pipeline Board
codified its own rules governing oil                   sets out the rights and obligations of the               reference. Section 385.1902, rules for
pipelines, this section has become                     parties in conducting such a proceeding.                 appealing staff action, also makes
unnecessary; therefore, the Commission                 AOPL also argues that a paper hearing                    reference to the Oil Pipeline Board.
proposed to remove this section from its               could prove beneficial to quickly                        Since the Commission abolished the Oil
Rules of Practice and Procedure. Section               resolving a complaint proceeding that is                 Pipeline Board in Order No. 561, the
385.102(a), which defines ‘‘decisional                 clear as to the issue in dispute, but                    Commission proposed to remove all
authority,’’ refers to authority or                    unclear as to an appropriate resolution.                 references to the Oil Pipeline Board, and
responsibility under ‘‘49 CFR Chapter                     The Commission’s modified                             adopts that proposal here.
X.’’ As this is a reference to ICC                     procedure provisions have become
regulations which have been replaced,                                                                           H. AOPL’s Suggestions
                                                       outdated as the result of changes to the
the Commission proposed the removal                    Commission’s procedural regulations                        Finally, in addition to commenting on
of this section.                                       that specify resolution paths to be                      the revisions proposed in the NOPR,
   Section 385.1403 discusses the filing               followed in particular instances. For                    AOPL, on behalf of the oil pipeline
requirements for protests to tariff filings.           example, the regulations at section                      industry, requests that the Commission
This section is inconsistent with, and                 343.5 provide that the Commission may                    implement two additional modifications
has been superseded by, section 343.3,                 require parties to enter into good faith                 in the final rule. First, as a reflection of
which was adopted in Order No. 561.                    negotiations to settle oil pipeline rate                 the current way in which carriers and
Accordingly, the Commission proposed                   matters and specify that the                             their shippers conduct business, AOPL
to delete section 385.1403 from the                    Commission will refer all protested rate                 suggests that the Commission modify
Commission’s Rules of Practice and                     filings to a settlement judge for                        the definition of ‘‘posting’’ or ‘‘post’’ in
Procedure.                                             recommended resolution. The                              section 341.0(a)(7), the definitions and
   Sections 385.1405 through 385.1414                                                                           applications section, by allowing the
                                                       Commission also has adopted new
set out the modified procedure rules for                                                                        placement of a carrier’s tariff on the
                                                       complaint procedures designed to
oil pipeline proceedings. These rules                                                                           Internet to serve as an alternate means
                                                       encourage and support consensual
provide that the Commission can order                                                                           of ‘‘posting.’’
                                                       resolution of complaints and otherwise
a proceeding to be heard under a                                                                                  AOPL’s final suggestion is for the
                                                       ensure that complaints are resolved in a
modified procedure if it appears that                                                                           Commission to delete section 385.208,
substantially all important issues of fact             timely and fair manner. Thus, AOPL’s
                                                       concerns about there being in place                      which pertains to notices of protests to
may be resolved by means of written                                                                             tentative oil pipeline valuations.
materials without an oral hearing. These               procedures that recognize the rights and
                                                       obligations of parties in large part have                According to AOPL, the sole purpose of
rules were adopted from the ICC’s                                                                               this section was to permit objections to
procedural regulations, 49 CFR 1100,                   already been addressed. For those few
                                                       instances where a proceeding may not                     valuations of oil pipeline companies,
pursuant to Order No. 225.16 The                                                                                which are no longer conducted.
regulations concerning the modified                    fit neatly into an established resolution
                                                       process, the Commission will be able to                    The Commission finds that both of
procedure have been superseded by,                                                                              AOPL’s suggestions are consistent with
and are in conflict with, procedures and               devise a procedure to ensure resolution
                                                       of the dispute in a manner that best                     the goals of this rulemaking and thus
filing requirements in Parts 342, 343,                                                                          will integrate them into the final rule.
346, and 347 adopted in Order Nos. 561,                serves all.17 Such a procedure could
                                                                                                                AOPL’s suggestion to allow posting on
571, and 572. Therefore, the                           include a paper hearing process through
                                                                                                                the Internet as an alternative recognizes
Commission proposed in the NOPR to                     which issues of material fact could be
                                                                                                                the growing availability and use of
remove them. The Commission stated it                  resolved by means of written
                                                                                                                electronic media as a new way of
would continue to use paper hearing                    statements. The Commission therefore
                                                                                                                conducting business. The change also
procedures in individual cases where                   considers the modified procedure
                                                                                                                will not impose a requirement or burden
warranted, but that these procedures are               regulations to be no longer necessary
                                                                                                                on pipelines as it is an alternative and
not used frequently enough to warrant                                                                           wholly voluntary; thus, the Commission
                                                          17 See, e.g., Express Pipeline Partnership, 75 FERC
continuing to include them in the                                                                               considers it unnecessary to request
                                                       ¶ 61,303 (1996) (holding that the Commission will
regulations. Since the Commission                      establish paper hearing procedures to address            comment before adopting the change.
proposed to remove the modified                        whether to approve proposed rates and a rate             The Commission will also delete section
procedure rules, the NOPR also                         structure as a condition precedent to construction
                                                                                                                385.208. As was stated by AOPL, this
proposed to remove section                             of a new oil pipeline); Platte Pipe Line Company,
                                                       78 FERC ¶ 61,307 (1997) (holding that the                section is wholly germane to objections
385.101(b)(4)(I) because it excepts                    Commission will establish a technical conference to      to oil pipeline valuations, which are no
                                                       examine issues raised by the pipeline’s filing); and     longer performed.
  16 Revisions of Rules of Practice and Procedure to   Sinclair Oil Corporation v. Platte Pipe Line
Expedite Trial-Type Hearings, Order No. 225, 47 FR     Company, 87 FERC ¶ 61,259 (1999) (holding that           V. Environmental Analysis
19014 (May 3, 1982), FERC Stats. & Regs.               the Director of the Commission’s Dispute
(Regulations Preambles, 1982–1985) ¶ 30,358 (Apr.      Resolution Service is directed to arrange a process        The Commission is required to
28, 1982).                                             to foster negotiation and agreement).                    prepare an Environmental Assessment
44404             Federal Register / Vol. 64, No. 157 / Monday, August 16, 1999 / Rules and Regulations

or an Environmental Impact Statement                concurrence of the Administrator of the       § 341.0   Definitions; application.
for any action that may have a                      Office of Information and Regulatory            (a) * * *
significant adverse effect on the human             Affairs of OMB, that this rule is not a         (7) Posting or post means making a
environment.18 The Commission has                   major rule as defined in section 351 of       copy of a carrier’s tariff available during
categorically excluded certain actions              the Small Business Regulatory                 regular business hours for public
from these requirements as not having a             Enforcement Fairness Act of 1996.             inspection in a convenient form and
significant effect on the human                                                                   place at the carrier’s principal office and
                                                    List of Subjects
environment.19 The action proposed                                                                other offices of the carrier where
here is procedural in nature and                    18 CFR Part 3                                 business is conducted with affected
therefore falls within the categorical                Organization and functions                  shippers, or placing a copy on the
exclusions provided in the                          (Government agencies).                        Internet in a form accessible by the
Commission’s regulations.20 Therefore,                                                            public.
neither an Environmental Impact                     18 CFR Part 341
                                                                                                  *     *     *     *     *
Statement nor an Environmental                        Maritime carriers, Pipelines,                 5. Section 341.2 is amended by
Assessment is necessary and will not be             Reporting and recordkeeping                   revising paragraph (c)(1) to read as
prepared in this rulemaking.                        requirements.                                 follows:
VI. Regulatory Flexibility Act                      18 CFR Part 342                               § 341.2   Filing requirements.
Certification
                                                      Pipelines, Reporting and                    *      *     *    *      *
   The Regulatory Flexibility Act 21                recordkeeping requirements.                     (c) * * *
generally requires the Commission to                                                                (1) Contents. Letters of transmittal
describe the impact that a proposed rule            18 CFR Part 343
                                                                                                  must describe the filing and explain any
would have on small entities or to                    Pipelines, Reporting and                    changes to the carrier’s rates, rules,
certify that the rule will not have a               recordkeeping requirements.                   terms or conditions of service; state if a
significant economic impact on a                                                                  waiver is being requested, and specify
substantial number of small entities.               18 CFR Part 346
                                                                                                  the statute, section, regulation, policy or
The Commission certifies that                         Pipelines, Reporting and                    order requested to be waived; and
promulgating this rule does not                     recordkeeping requirements.                   identify the tariffs or supplement
represent a major federal action having                                                           numbers and the proposed effective date
                                                    18 CFR Part 357
a significant economic impact on a                                                                of the tariff publication. Carriers must
substantial number of small entities.                 Pipelines, Reporting and
                                                    recordkeeping requirements, Uniform           provide to the Commission, in the letter
Therefore, no regulatory flexibility                                                              of transmittal accompanying the filing
analysis is required.                               System of Accounts.
                                                                                                  of a tariff publication containing a joint
VII. Information Collection Statement               18 CFR Part 362                               carrier, the address, phone number, and
   Office of Management and Budget                    Pipelines, Reporting and                    a contact for each joint carrier listed in
(OMB) regulations 22 require that OMB               recordkeeping requirements.                   the tariff publication.
approve certain information collection                                                            *      *     *    *      *
                                                    18 CFR Part 385                                 6. Section 341.6 is amended by
requirements imposed by agency rule.
Since this rule does not impose new                   Administrative practice and                 revising paragraph (d)(3) to read as
regulations and has no impact on                    procedure, Electric power, Penalties,         follows:
current information collections, there is           Pipelines, Reporting and record keeping
                                                    requirements.                                 § 341.6   Adoption rule.
no need to obtain OMB approval as to
the deletion and modification of these                By the Commission.
                                                                                                  *      *    *    *     *
regulations. Nevertheless, the                                                                      (d) * * *
                                                    Linwood A. Watson, Jr.,
Commission is submitting a copy of the                                                              (3) The former owner must
                                                    Acting Secretary.                             immediately file a consecutively
final rule to the OMB for informational               In consideration of the foregoing, the
purposes.                                                                                         numbered supplement to each of its
                                                    Commission amends Parts 3, 341, 342,          tariffs covered by the adoption notice,
VIII. Effective Date and Congressional              343, 346, 357, 362, and 385, Chapter I,       reading as follows:
Notification                                        Title 18, Code of Federal Regulations, as
                                                    set forth below.                                Effective [date of adoption notice] this
   The regulations are effective                                                                  tariff became the tariff of [legal name of
September 15, 1999. The Small Business              PART 3—[REMOVED AND RESERVED]                 adopting carrier] for transportation
Regulatory Enforcement Fairness Act of                                                            movements [identify origin and destination
1996 requires agencies to report to                   1.–2. Part 3 consisting of § 3.4 is         points], as per its adoption notice FERC No.
Congress on the promulgation of certain             removed and reserved.                         [number].
final rules prior to their effective                                                              *     *      *     *       *
dates.23 That reporting requirement                 PART 341—OIL PIPELINE TARIFFS:
applies to this Final Rule. The                     OIL PIPELINE COMPANIES SUBJECT                PART 342—OIL PIPELINE RATE
Commission has determined, with the                 TO SECTION 6 OF THE INTERSTATE                METHODOLOGIES AND PROCEDURES
                                                    COMMERCE ACT
  18 Order
                                                                                                    7. The authority citation for Part 342
           No. 486, Regulations Implementing the      3. The authority citation for Part 341
National Environmental Policy Act, 52 FR 47897
                                                                                                  continues to read as follows:
(Dec. 17, 1987), FERC Stats. & Regs. (Regulations   continues to read as follows:                   Authority: 5 U.S.C. 571–583; 42 U.S.C.
Preambles, 1986–1990) ¶ 30,783 (Dec. 10, 1987).       Authority: 42 U.S.C. 7101–7352; 49 U.S.C.   7101–7532; 49 U.S.C. 60502; 49 App. U.S.C.
  19 18 CFR 380.4.
                                                    1–27.                                         1–85.
  20 18 CFR 380.4(a)(2)(ii).
  21 5 U.S.C. 601–612.                                4. Section 341.0 is amended by                8. Section 342.3 is amended by
  22 5 CFR Part 1320.                               revising paragraph (a)(7) to read as          revising paragraph (b) in its entirety,
  23 5 U.S.C. 801 (Supp. III 1997).                 follows:                                      and paragraph (d)(3) to read as follows:
                Federal Register / Vol. 64, No. 157 / Monday, August 16, 1999 / Rules and Regulations                              44405

§ 342.3   Indexing.                            rate established under § 342.3 of this          17. Section 385.102 is amended by
*      *    *     *     *                      chapter, then gross revenues must also        revising paragraphs (a) and (e)(2) to read
   (b) Information required to be filed        be computed and set forth as if the           as follows:
with rate changes. The carrier must            ceiling rates were effective for the 12
comply with Part 341 of this title.            month period.                                 § 385.102   Definitions (Rule 102).
Carriers must specify in their letters of                                                    *     *      *    *     *
transmittal required in § 341.2(c) of this     PART 357—ANNUAL SPECIAL OR                      (a) Decisional authority means the
chapter the rate schedule to be changed,       PERIODIC REPORTS: CARRIERS                    Commission or Commission employee
the proposed new rate, the prior rate,         SUBJECT TO PART I OF THE                      that, at the time for decision on a
the prior ceiling level, and the               INTERSTATE COMMERCE ACT                       question, has authority or responsibility
applicable ceiling level for the                 13. The authority citation for Part 357     under this chapter to decide that
movement. No other rate information is         continues to read as follows:                 particular question.
required to accompany the proposed                                                           *     *      *    *     *
rate change.                                     Authority: 42 U.S.C. 7101–7352; 49 U.S.C.
                                               60502; 49 App. U.S.C. 1–85.                     (e) * * *
*      *    *     *     *
   (d) * * *                                     14. Section 357.3 is revised to read as       (2) With respect to any proceeding not
   (3) A carrier must compute the ceiling      follows:                                      set for hearing under subpart E, any
level each index year without regard to        § 357.3 FERC Form No. 73, Oil Pipeline
                                                                                             employee designated by rule or order to
the actual rates filed pursuant to this        Data for Depreciation Analysis.               conduct the proceeding.
section. All carriers must round their            (a) Who must file. Any oil pipeline        *     *      *    *     *
ceiling levels each index year to the          company requesting new or changed
nearest hundredth of a cent.                                                                 § 385.208   [Removed and reserved].
                                               depreciation rates pursuant to Part 347
*      *    *     *     *                      of this title if the proposed depreciation      18. Section 385.208 is removed and
                                               rates are based on the remaining              reserved.
PART 343—PROCEDURAL RULES                      physical life of the properties or if
APPLICABLE TO OIL PIPELINE                                                                     19. Section 385.502 is amended by
                                               directed by the Commission to file            removing paragraph (a)(3) and revising
PROCEEDINGS                                    service life data during an investigation     paragraphs (a)(1) and (a)(2) to read as
  9. The authority citation for Part 343       of its book depreciation rates.               follows:
continues to read as follows:                     (b) When to submit. Service life data
                                               is reported to the Commission by an oil       § 385.502   Initiation of hearing (Rule 502).
  Authority: 5 U.S.C. 571–583; 42 U.S.C.
7101–7352; 49 U.S.C. 60502; 49 App. U.S.C.     pipeline company, as necessary,                 (a) * * *
1–85.                                          concurrently with a filing made
                                               pursuant to Part 347 of this title or as        (1) Order of the Commission; or
  10. Section 343.2 is amended by              directed during a depreciation rate             (2) Notice by the Secretary at the
revising paragraph (c)(4) to read as           investigation.                                direction of the Commission or under
follows:                                          (c) What to submit. The format and         delegated authority.
§ 343.2 Requirements for filing                data which must be submitted are              *     *    *     *    *
interventions, protests and complaints.        prescribed in FERC Form No. 73, Oil
*      *     *      *      *                   Pipeline Data for Depreciation Analysis,      §§ 385.1403 and 385.1405–385.1415
                                               available for review at the Commission’s      [Removed]
   (c) * * *
   (4) A protest or complaint that does        Public Reference Section, Room 2A, 888
                                                                                             §§ 385.1404 and 385.1415 [Redesigated as
not meet the requirements of paragraphs        First Street, NE, Washington, D.C.            §§ 385.1403 and 385.1404]
(c)(1), (c)(2), or (c)(3) of this section,     20426.
whichever is applicable, will be                                                               20. Sections 385.1403 and 385.1405
                                               SUBCHAPTER 5—[REMOVED AND
dismissed.                                     RESERVED]                                     through 385.1414 are removed and
                                                                                             sections 385.1404 and 385.1415 are
PART 346—OIL PIPELINE COST-OF-                 PART 362—[REMOVED AND                         redesignated paragraphs 385.1403 and
SERVICE FILING REQUIREMENTS                    RESERVED]                                     385.1404.
  11. The authority citation for Part 346        14a. Subchapter 5 consisting of part          21. Section 385.1902 is amended by
continues to read as follows:                  362, Uniform System of Records and            removing paragraph (b), redesignating
                                               Reports of Property Changes, is removed       paragraph (c) as paragraph (b), and
  Authority: 42 U.S.C. 7101–7352; 49 U.S.C.                                                  revising paragraph (a) to read as follows:
60502; 49 App. U.S.C. 1–85.                    in its entirety and reserved.
  12. Section 346.2 is amended by                                                            § 385.1902 Appeals from action of staff
                                               PART 385—RULES OF PRACTICE AND                (Rule 1902).
revising paragraph (c)(7) to read as           PROCEDURE
follows:                                                                                        (a) Any staff action (other than a
                                                 15. The authority citation for Part 385     decision or ruling of presiding officer, as
§ 346.2 Material in support of initial rates   continues to read as follows:
or change in rates.                                                                          defined in Rule 102(e)(1), made in a
                                                 Authority: 5 U.S.C. 551–557; 15 U.S.C.      proceeding set for hearing under subpart
*     *     *     *    *                       717–717z, 3301–3432; 16 U.S.C. 791a–825r,     E of this part) taken pursuant to
  (c) * * *                                    2601–2645; 31 U.S.C. 9701; 42 U.S.C. 7101–    authority delegated to the staff by the
  (7) Statement G—revenues. This               7352; 49 U.S.C. 60502; 49 App. U.S.C. 1–85.   Commission is a final agency action that
statement must set forth the gross
                                               § 385.101   [Amended]                         is subject to a request for rehearing
revenues for the actual 12 months of
                                                                                             under Rule 713 (request for rehearing).
experience as computed under both the            16. Section 385.101 is amended by
presently effective rates and the              removing paragraphs (b)(3) and (b)(4)(i),     *      *    *      *    *
proposed rates. If the presently effective     and redesignating paragraph (b)(4)(ii) as     [FR Doc. 99–20574 Filed 8–13–99; 8:45 am]
rates are not at the maximum ceiling           paragraph (b)(4).                             BILLING CODE 6717–01–P
44406           Federal Register / Vol. 64, No. 157 / Monday, August 16, 1999 / Rules and Regulations

DEPARTMENT OF HEALTH AND                         FDA has evaluated the data in the              Failure to request a hearing for any
HUMAN SERVICES                                petition and other relevant material.             particular objection shall constitute a
                                              Based on this information, the agency             waiver of the right to a hearing on that
Food and Drug Administration                  concludes that the proposed use of the            objection. Each numbered objection for
                                              additive is safe, the additive will               which a hearing is requested shall
21 CFR Part 178                               achieve its intended technical effect,            include a detailed description and
[Docket No. 98F–0571]                         and therefore, that the regulations in 21         analysis of the specific factual
                                              CFR 178.3297 should be amended as set             information intended to be presented in
Indirect Food Additives: Adjuvants,           forth below.                                      support of the objection in the event
Production Aids, and Sanitizers                  In accordance with § 171.1(h) (21 CFR          that a hearing is held. Failure to include
                                              171.1(h)), the petition and the                   such a description and analysis for any
AGENCY:   Food and Drug Administration,       documents that FDA considered and                 particular objection shall constitute a
HHS.                                          relied upon in reaching its decision to           waiver of the right to a hearing on the
ACTION:   Final rule.                         approve the petition are available for            objection. Three copies of all documents
                                              inspection at the Center for Food Safety          shall be submitted and shall be
SUMMARY: The Food and Drug
                                              and Applied Nutrition by appointment              identified with the docket number
Administration (FDA) is amending the
                                              with the information contact person               found in brackets in the heading of this
food additive regulations to provide for
                                              listed above. As provided in § 171.1(h),          document. Any objections received in
the safe use of nickel antimony titanium
                                              the agency will delete from the                   response to the regulation may be seen
yellow rutile (C.I. Pigment Yellow 53) as
                                              documents any materials that are not              in the Dockets Management Branch
a colorant for polymers intended for use
                                              available for public disclosure before            between 9 a.m. and 4 p.m., Monday
in contact with food. This action
responds to a petition filed by BASF          making the documents available for                through Friday.
Corp.                                         inspection.
                                                 The agency has previously considered           List of Subjects in 21 CFR Part 178
DATES: This regulation is effective
                                              the environmental effects of this rule as             Food additives, Food packaging.
August 16, 1999; written objections and       announced in the Notice of Filing for
requests for a hearing by September 15,       FAP 8B4611 (63 FR 40125). No new                    Therefore, under the Federal Food,
1999.                                         information or comments have been                 Drug, and Cosmetic Act and under
ADDRESSES: Submit written objections to       received that would affect the agency’s           authority delegated to the Commissioner
the Dockets Management Branch (HFA–           previous determination that there is no           of Food and Drugs and redelegated to
305), Food and Drug Administration,           significant impact on the human                   the Director, Center for Food Safety and
5630 Fishers Lane, rm. 1061, Rockville,       environment and that an environmental             Applied Nutrition, 21 CFR part 178 is
MD 20852.                                     impact statement is not required.                 amended as follows:
FOR FURTHER INFORMATION CONTACT: Vir             This final rule contains no collection
D. Anand, Center for Food Safety and          of information. Therefore, clearance by           PART 178—INDIRECT FOOD
Applied Nutrition (HFS–215), Food and         the Office of Management and Budget               ADDITIVES: ADJUVANTS,
Drug Administration, 200 C St. SW.,           under the Paperwork Reduction Act of              PRODUCTION AIDS, AND SANITIZERS
Washington, DC 20204, 202–418–3081.           1995 is not required.
                                                 Any person who will be adversely                 1. The authority citation for 21 CFR
SUPPLEMENTARY INFORMATION: In a notice
                                              affected by this regulation may at any            part 178 continues to read as follows:
published in the Federal Register of
July 27, 1998 (63 FR 40125), FDA              time on or before September 15, 1999,                 Authority: 21 U.S.C. 321, 342, 348, 379e.
announced that a food additive petition       file with the Dockets Management
(FAP 8B4611) had been filed by BASF           Branch (address above) written                       2. Section 178.3297 is amended in the
Corp., 3000 Continental Dr. North, Mt.        objections thereto. Each objection shall          table in paragraph (e) by alphabetically
Olive, NJ 07828–1234. The petition            be separately numbered, and each                  adding an entry under the headings
proposed to amend the food additive           numbered objection shall specify with             ‘‘Substances’’ and ‘‘Limitations’’ to read
regulations to provide for the safe use of    particularity the provisions of the               as follows:
nickel antimony titanium yellow rutile        regulation to which objection is made             § 178.3297      Colorants for polymers.
(C.I. Pigment Yellow 53) as a colorant        and the grounds for the objection. Each
for polymers intended for use in contact      numbered objection on which a hearing             *       *       *    *       *
with food.                                    is requested shall specifically so state.             (e) * * *



                             Substances                                                                Limitations

   *                     *                    *                       *                     *                            *                      *

Nickel antimony titanium yellow rutile (C.I. Pigment Yellow 53, CAS    For use at levels not to exceed 1 percent by weight of polymers. The
  Reg. No. 8007–18–9).                                                   finished articles are to contact food only under conditions of use B
                                                                         through H as described in Table 2 of § 176.170(c) of this chapter.
   *                     *                    *                       *                       *                      *                      *
                Federal Register / Vol. 64, No. 157 / Monday, August 16, 1999 / Rules and Regulations                                   44407

  Dated: August 9, 1999.                        chromium antimony titanium buff rutile          be separately numbered, and each
L. Robert Lake,                                 (C.I. Pigment Brown 24) as a colorant for       numbered objection shall specify with
Director, Office of Policy, Planning and        polymers intended for use in contact            particularity the provisions of the
Strategic Initiatives, Center for Food Safety   with food.                                      regulation to which objection is made
and Applied Nutrition.                             During the review of the petition, it        and the grounds for the objection. Each
[FR Doc. 99–21079 Filed 8–13–99; 8:45 am]       was determined that the correct                 numbered objection on which a hearing
BILLING CODE 4160–01–F                          nomenclature for the colorant, in               is requested shall specifically so state.
                                                consonance with the Chemical Abstract           Failure to request a hearing for any
                                                Services Registry No. (68186–90–3), is          particular objection shall constitute a
DEPARTMENT OF HEALTH AND                        chrome antimony titanium buff rutile.           waiver of the right to a hearing on that
HUMAN SERVICES                                  Accordingly, the colorant is listed             objection. Each numbered objection for
                                                correctly in the codified section of this       which a hearing is requested shall
Food and Drug Administration                    document.                                       include a detailed description and
                                                   FDA has evaluated the data in the            analysis of the specific factual
21 CFR Part 178                                 petition and other relevant material.           information intended to be presented in
[Docket No. 98F–0570]                           Based on this information, the agency           support of the objection in the event
                                                concludes that the proposed use of the          that a hearing is held. Failure to include
Indirect Food Additives: Adjuvants,             additive is safe, that the additive will        such a description and analysis for any
Production Aids, and Sanitizers                 achieve its intended technical effect,          particular objection shall constitute a
                                                and therefore, that the regulations in 21       waiver of the right to a hearing on the
AGENCY:   Food and Drug Administration,         CFR 178.3297 should be amended as set           objection. Three copies of all documents
HHS.                                            forth below.                                    shall be submitted and shall be
ACTION:   Final rule.                              In accordance with § 171.1(h) (21 CFR        identified with the docket number
                                                171.1(h)), the petition and the                 found in brackets in the heading of this
SUMMARY: The Food and Drug                      documents that FDA considered and
Administration (FDA) is amending the                                                            document. Any objections received in
                                                relied upon in reaching its decision to
food additive regulations to provide for                                                        response to the regulation may be seen
                                                approve the petition are available for
the safe use of chrome antimony                                                                 in the Dockets Management Branch
                                                inspection at the Center for Food Safety
titanium buff rutile (C.I. Pigment Brown                                                        between 9 a.m. and 4 p.m., Monday
                                                and Applied Nutrition by appointment
24) as a colorant for polymers intended                                                         through Friday.
                                                with the information contact person
for use in contact with food. This action       listed above. As provided in § 171.1(h),        List of Subjects in 21 CFR Part 178
responds to a petition filed by BASF            the agency will delete from the
Corp.                                           documents any materials that are not              Food additives, Food packaging.
DATES: This regulation is effective             available for public disclosure before            Therefore, under the Federal Food,
August 16, 1999; written objections and         making the documents available for              Drug, and Cosmetic Act and under
requests for a hearing by September 15,         inspection.                                     authority delegated to the Commissioner
1999.                                              The agency has previously considered         of Food and Drugs and redelegated to
                                                the environmental effects of this rule as       the Director, Center for Food Safety and
ADDRESSES: Submit written objections to
                                                announced in the Notice of Filing for           Applied Nutrition, 21 CFR part 178 is
the Dockets Management Branch (HFA–                                                             amended as follows:
305), Food and Drug Administration,             FAP 8B4608 (63 FR 39582). No new
5630 Fishers Lane, rm. 1061, Rockville,         information or comments have been
                                                received that would affect the agency’s         PART 178—INDIRECT FOOD
MD 20852.                                                                                       ADDITIVES: ADJUVANTS,
                                                previous determination that there is no
FOR FURTHER INFORMATION CONTACT: Vir            significant impact on the human                 PRODUCTION AIDS, AND SANITIZERS
D. Anand, Center for Food Safety and            environment and that an environmental
Applied Nutrition (HFS–215), Food and                                                             1. The authority citation for 21 CFR
                                                impact statement is not required.               part 178 continues to read as follows:
Drug Administration, 200 C St. SW.,                This final rule contains no collection
Washington, DC 20204, 202–418–3081.             of information. Therefore, clearance by             Authority: 21 U.S.C. 321, 342, 348, 379e.
SUPPLEMENTARY INFORMATION: In a notice          the Office of Management and Budget                2. Section 178.3297 is amended in the
published in the Federal Register of            under the Paperwork Reduction Act of            table in paragraph (e) by alphabetically
July 23, 1998 (63 FR 39582), FDA                1995 is not required.                           adding an entry under the headings
announced that a food additive petition            Any person who will be adversely             ‘‘Substances’’ and ‘‘Limitations’’ to read
(FAP 8B4608) had been filed by BASF             affected by this regulation may at any          as follows:
Corp., 3000 Continental Dr. North, Mt.          time on or before September 15, 1999,
Olive, NJ 07828–1234. The petition              file with the Dockets Management                § 178.3297    Colorants for polymers.
proposed to amend the food additive             Branch (address above) written                  *       *    *       *       *
regulations to provide for the safe use of      objections thereto. Each objection shall            (e) * * *



                               Substances                                                              Limitations

    *                      *                    *                    *                      *                            *                      *

Chrome antimony titanium buff rutile (C.I. Pigment Brown 24, CAS      For use at levels not to exceed 1 percent by weight of polymers. The
  Reg. No. 68186–90–3).                                                 finished articles are to contact food only under conditions of use B
                                                                        through H as described in Table 2 of § 176.170(c) of this chapter.
    *                      *                    *                    *                       *                      *                      *
44408           Federal Register / Vol. 64, No. 157 / Monday, August 16, 1999 / Rules and Regulations

  Dated: August 9, 1999.                          Please contact Randall Robinson at           respectively. EPA provided comments
L. Robert Lake,                                 (312) 353–6713 before visiting the             to MPCA regarding Amendment Two
Director, Office of Policy, Planning and        Region 5 office.                               and Amendment Three, but did not take
Strategic Initiatives, Center for Food Safety   FOR FURTHER INFORMATION CONTACT:               any other action on those amendments
and Applied Nutrition.                          Randall Robinson, Meteorologist,               to the administrative order.
[FR Doc. 99–21080 Filed 8–13–99; 8:45 am]       Regulation Development Section, Air              The 30-day public notice for the
BILLING CODE 4160–01–F                          Programs Branch (AR–18J), U.S.                 Order amendment, Amendment Four,
                                                Environmental Protection Agency,               appeared in the St. Paul Pioneer Press
                                                Region 5, 77 West Jackson Boulevard,           on March 4, 1998. No one from the
                                                Chicago, Illinois 60604, (312) 353–6713.       public commented on the proposed
ENVIRONMENTAL PROTECTION                                                                       revisions or requested a public hearing.
                                                SUPPLEMENTARY INFORMATION: This
AGENCY
                                                Supplementary Information section is           What Are the National Ambient Air
40 CFR Part 52                                  organized as follows:                          Quality Standards?
                                                I. Introduction                                  The EPA has established
[MN 48–01–7273a; FRL–6416–8]                    What Action Is EPA Taking Today?               concentration levels for each of six
                                                Who Is Affected by This Action?                pollutants, called criteria pollutants,
Approval and Promulgation of State              What Information Did the State Submit in Its   that are protective of human health
Implementation Plan; Minnesota                     Request?                                    (primary standard) and welfare
                                                What Are the National Ambient Air Quality
AGENCY: Environmental Protection                   Standards?
                                                                                               (secondary standard). The primary
Agency (EPA).                                   What Is an Administrative Order?               NAAQS for SO2 is 0.03 parts per million
ACTION: Direct final rule.                      How Did the State Support Its Request for      (ppm) annual arithmetis mean, and 0.14
                                                   Marathon?                                   ppm maximum 24-hour average
SUMMARY: We are approving a December            How Does This Action Change the                concentration, not to be exceeded more
31, 1998, request from the Minnesota               Administrative Order for Marathon?          than once per calendar year. The
Pollution Control Agency (MPCA) for             Why Is the Request Approvable?                 secondary NAAQS for SO2 is 0.50 ppm
new air pollution control requirements          II. EPA Action                                 maximum 3-hour average concentration,
for the Minnesota sulfur dioxide (SO2)          III. Administrative Requirements
                                                                                               not to be exceeded more than once per
State Implementation Plan (SIP) for                                                            calendar year. See 40 CFR 50.4.
Marathon Ashland Petroleum LLC                  I. Introduction
                                                                                               What Is an Administrative Order?
(Marathon). These requirements were             What Action Is EPA Taking Today?
submitted in the form of an                                                                       Each state is obligated by section
Administrative Order (Order) and                  In this action, we are approving a           110(a) of the Act, 42 U.S.C. 7410, to
include revisions associated with the           revision to the Minnesota SO2 SIP for          develop a plan which provides for
addition of a new stack, revised                Marathon. The revision is referred to as       ‘‘implementation, maintenance, and
emission limits for numerous sources,           Amendment Four and amends the Order            enforcement’’ of the NAAQS
and other changes. The revisions result         for Marathon to reflect revisions              promulgated by EPA. An Order is a
in an overall decrease in allowable SO2         associated with the addition of a new          mechanism which the state uses to
emissions from the facility. The new            stack and revised emission limits for          enforce applicable requirements
requirements have been evaluated                numerous sources. Other changes                established either by State or Federal
through a computerized modeling                 included in Amendment Four are                 law. The Orders are used to enforce
analysis and have shown that they will          discussed later in this document and           requirements needed to meet the
attain and maintain the National                more fully in the technical review             applicable NAAQS.
Ambient Air Quality Standard (NAAQS)            document.
                                                                                               How Did the State Support Its Request
for SO2.                                        Who Is Affected by This Revision?              for Marathon?
DATES: This direct final rule is effective         The revision to Minnesota’s SIP for           The MPCA provided EPA with a
on October 15, 1999, without further            SO2 is site-specific and, thus, only           computerized modeling attainment
notice, unless we receive relevant              affects Marathon.                              demonstration. The modeling analysis
adverse written comments by September                                                          was required to evaluate whether the air
15, 1999. If we receive adverse                 What Information Did the State Submit
                                                                                               impacts from the proposed revisions
comments, we will publish a timely              In Its Request?
                                                                                               will still provide for attainment of the
withdrawal of the direct final rule in the        On December 31, 1998, the Minnesota          NAAQS for SO2. Details of the analysis
Federal Register and inform the public          Pollution Control Agency (MPCA)                are presented below.
that this rule will not take effect.            submitted to EPA a site-specific SO2 SIP
ADDRESSES: Send written comments to:            revision request for Marathon. The SIP         Air Quality Model
Carlton T. Nash, Chief, Regulation              revision for Marathon was submitted in            The analysis utilized the Industrial
Development Section, Air Programs               the form of an Order amendment, and            Source Complex Model-Short Term
Branch (AR–18J), U.S. Environmental             referred to as Amendment Four.                 (ISCST3) model. (The Integrated
Protection Agency, Region 5, 77 West            Amendment Four revises the present             Gaussian Model (IGM), which has been
Jackson Boulevard, Chicago, Illinois,           Order for Marathon and replaces prior          demonstrated to be equivalent to
60604. You may inspect copies of the            amendments, Amendment Two and                  ISCST3, was used to obtain source
documents relevant to this action during        Three, by incorporating changes in             contributions.) ISCST3 is recommended
normal business hours at the following          response to EPA comments on                    for regulatory applications for
location: Regulation Development                Amendment Two and Amendment                    estimating short-term impacts from
Section, Air Programs Branch, (AR–18J),         Three. The MPCA had previously                 complicated sources (i.e., sources with
U.S. Environmental Protection Agency,           submitted Amendment Two and                    special problems such as aerodynamic
Region 5, 77 West Jackson Boulevard,            Amendment Three to EPA on November             downwash). The ISCST3 model also
Chicago, Illinois, 60604.                       26, 1996, and October 17, 1997,                contains the COMPLEX–I algorithms
              Federal Register / Vol. 64, No. 157 / Monday, August 16, 1999 / Rules and Regulations                                            44409

which allow for the prediction of          HIGH-SECOND-HIGH MODELED SULFUR                                  NEW EMISSION LIMIT—Continued
ambient air impacts at receptors above          DIOXIDE CONCENTRATIONS
stack top (i.e., complex terrain).                                                                        Emission unit           lb/hr      lb/mmBTU
                                                        [Micrograms/cubic meter]
Additionally, the ISCST3 model
                                                                                                        Reformer Heat-
automatically implements the                                   Total con-                                 ers .................       3.48        0.03
intermediate terrain policy which           Averaging          centration         NAAQS
requires the user to predict                  time            marathon+all                                * Removed.
                                                              background
concentrations on an hour-by-hour basis                                                                 Significant decreases in the pounds per
at receptors above stack top but below     Annual .......             65.1                    80        hour emission limits occur at the crude
plume height using both a simple           24-hour .....             359.4                   365        charge heater (old limit=108 lb/hr),
terrain model (ISCST3) and a complex       3-hour .......            946.5                  1300        crude vacuum heater (old limit=23.4 lb/
terrain model (COMPLEX–I) and select                                                                    hr), and the crude charge plus preflash
the highest for each hour. This option     How Does This Action Change the                              (old limit=105.5 lb/hr). Minor increases,
was executed for the Marathon              Administrative Order for Marathon?                           less than 1 pound per hour, occur at
modeling.                                                                                               other sources, mainly the heaters.
                                             Amendment Four includes the                                Overall, the total allowable pounds per
Modeling Inputs                            following primary changes: (1)                               hour emissions have dropped from 6325
                                           installation of a new sulfur reduction                       tons per year to 5698 tons per year.
   The SIP submittal revision submitted                                                                    The existing SIP for Marathon
                                           unit exhaust stack and subsequent
by the MPCA is specific to Marathon.       rebuilding of one of two existing tail-gas                   included emission limits specified
The total ambient air impact from the      incinerators, (2) a revised table of                         during periods when the Shell Claus
revisions at the Company is the sum of     emission limits for various process and                      Offgas Treatment (SCOT) unit and the
the modeled impact from Company            combustion equipment.                                        amine reduction unit (ARU) were
sources, modeled background sources                                                                     undergoing regular scheduled
from the Twin Cities area, and an            The table below lists the Emission
                                                                                                        maintenance. These maintenance period
                                           Unit and the new emission limits, in
unmodeled background value based on                                                                     limits have been removed in
                                           pounds per hour and pounds per
monitoring data. The value of the                                                                       Amendment Four. The limits associated
                                           million British thermal units (BTU’s) for
unmodeled background concentration is                                                                   with normal operating conditions and
                                           those sources with revised emission
based on an analysis of historic                                                                        any other New Source Performance
                                           limits.
monitored concentrations and has been                                                                   Standard (NSPS) limits apply at all
used and approved in previous SO2 SIP                                                                   times.
                                                         NEW EMISSION LIMIT                                Other notable changes included in
revisions. Marathon is located in the
Mississippi River valley with bluffs                                                                    Amendment Four include:
                                             Emission unit           lb/hr        lb/mmBTU                 (1) A requirement to keep records of
exceeding the height of Marathon
                                                                                                        calculated SO2 emissions in pounds per
stacks. Consequently, weather data         Process Steam
                                             Boiler .............        1.08                 0.03      hour.
collected on-site was used to ensure                                                                       (2) The addition of a diesel engine to
representativeness. The modeling           Crude Charge
                                             Heater ...........          34.0             0.2834        pump water to the Alky unit during an
analysis used one year of meteorological                                                                emergency accidental release. Maximum
                                           Crude Vacuum
data (1988) collected from a tower                                                                      emissions of 0.48 pound per hour SO2.
                                             Heater ...........          1.20                0.03
located at the facility. Concentrations    Distillate Unifier                                              (3) A restriction on steam air decoking
were calculated over a receptor grid         Heater ...........          1.41                 0.03      more than one emission unit at the same
which featured 100 meter resolution.       Naphtha Unifier                                              time.
Concentrations calculated inside the         Heater ...........          1.95                0.03          (4) Changing fuel oil sampling from a
fenced property boundary were not used     Platformer                                                   daily sample to a requirement to sample
in the analysis.                             Charge Heater               1.95                0.03       after receiving a transfer of fuel into
   The modeling analysis used emission
                                           Platformer Inter-                                            their fuel supply tank, and a change
                                             heater #1 .......           1.68                 0.03      from a weekly analysis of heating value
estimates based on maximum allowable       Asphalt Oxidizer                (*)   ....................   of the fuel oil to quarterly.
emission rates (pounds of sulfur           Crude Charge ...              52.2                 0.90         (5) Changes to other operating limits
dioxide/hour and pounds of sulfur          Crude Charge                                                 (Exhibits 1.1 and 1.4)
dioxide/mmBTU) and maximum design            Preflash A
                                                                                                        Boiler 5—36.0 mmBTU/hr
capacities (mmBTUs/hour). Stacks             (New) .............         0.89                 0.03
                                                                                                        Distillate Unifier Heater—47.0 mmBTU/
exceeding allowable good engineering       Crude Charge
                                             Preflash B
                                                                                                             hr
practice stack height (GEP) were                                                                        Naphtha Unifier Heater—65.0 mmBTU/
                                             (New) .............         0.89                 0.03
modeled using the calculated GEP                                                                             hr
                                           Platformer Heat-
height. Plume downwash due to                er #2 ..............        1.08                0.03       Platformer Charge Heater—65.0
building wake effects was also included    Guard Case Re-                                                    mmBTU/hr
in the analysis. The modeling was            actor ..............        1.70                0.03       Platformer Interheater—56.0 mmBTU/hr
conducted in accordance with the           Reactor Heaters                                              Crude Charge—58.0 mmBTU/hr
general recommendations included in          #1 & 2 ............         2.10                 0.03      Crude Charge Pre—29.7 mmBTU/hr
                                           Reactor Heaters                                              Crude Charge Pre—29.7 mmBTU/hr
the Guideline on Air Quality Models, 40                                                                 Platformer Heater #2—36.0 mmBTU/hr
Code of Federal Regulations part 51,         #4 & 4E .........           0.63                 0.03
                                           Reactor Heaters                                              Reactor Heaters 3 & 4W—35.0 mmBTU/
appendix W. The results of the                                                                               hr
                                             #3 & 4W ........            1.05                0.03
modeling are presented in the table                                                                     Modeled heat input values were added
                                           Reactor Charge
below.                                       Heater ...........          1.38                 0.03           to the maximum heat input column
                                           Product Stripper                                                (6) Changes to stack parameters
                                             Re-boiler ........          0.78                0.03       (Exhibit 1.7).
44410         Federal Register / Vol. 64, No. 157 / Monday, August 16, 1999 / Rules and Regulations

   Modeled flow rates and temperatures       been shown to be protective of the          C. Executive Order 13045
were added                                   applicable NAAQS.
   (7) Changes not requiring a                                                             Protection of Children from
                                             II. EPA Action                              Environmental Health Risks and Safety
modification of the Administrative
Order.                                          EPA is approving the requested           Risks (62 FR 19885, April 23, 1997),
   Language was added which would            revision to the Minnesota SO2 SIP for       applies to any rule that: (1) is
allow certain changes to be made at the      Marathon. The EPA is publishing this        determined to be ‘‘economically
facility without obtaining a modified        action without prior proposal because       significant’’ as defined under E.O.
Order. A modification to the Order is        EPA views this as a noncontroversial        12866, and (2) concerns an
not needed if the modification does not:     revision and anticipates no adverse         environmental health or safety risk that
   (A) Exceed any of the limits in Part I    comments. However, in a separate            EPA has reason to believe may have a
of the Order,                                document in this Federal Register           disproportionate effect on children. If
   (B) Effect the stack parameters           publication, the EPA is proposing to        the regulatory action meets both criteria,
described in Exhibit 1.7, unless the         approve the SIP revision in case written    the Agency must evaluate the
change is made to a unit that no longer      adverse comments are filed. This action     environmental health or safety effects of
will be allowed to burn fuel oil (fuel oil   will become effective without further       the planned rule on children, and
supply disconnected),                        notice unless the Agency receives           explain why the planned regulation is
   (C) Result in an increase of 2.28         relevant adverse written comments           preferable to other potentially effective
pounds of SO2 per hour or more at any        within 30 days from the date of             and reasonably feasible alternatives
new unit.                                    publication. Should the Agency receive      considered by the Agency. EPA
                                             adverse comments, it will publish a         interprets E.O. 13045 as applying only
   Based on the modeled attainment
                                             final rule informing the public that this   to those regulatory actions that are
demonstration submitted with the
                                             action will not take effect. Any parties    based on health or safety risks, such that
revision, these changes should not
                                             interested in commenting on this action     the analysis required under section 5–
threaten the NAAQS. The limits on
                                             should do so at this time.                  501 of the Order has the potential to
modifications identified in the Order
                                                                                         influence the regulation.
should ensure that significant changes       III. Administrative Requirements
at the facility cannot occur without                                                       This action is not subject to E.O.
additional modeling showing that the         A. Executive Order 12866                    13045 because it approves a state rule
NAAQS are protected. Additionally,             The Office of Management and Budget       implementing a previously promulgated
language in the Order states that            (OMB) has exempted this regulatory          health or safety-based Federal standard,
regardless of whether a modification of      action from Executive Order (E.O.)          and preserves the existing level of
the order is required, the Company shall     12866, entitled ‘‘Regulatory Planning       pollution control for the affected areas.
obtain a permit amendment if required        and Review.’’                               D. Executive Order 13084: Consultation
by state or Federal law.                                                                 and Coordination With Indian Tribal
   (8) Recordkeeping revisions.              B. Executive Order 12875: Enhancing
                                             Intergovernmental Partnerships              Governments
   An additional requirement to record
the time period when burning fuel oil in        Under E.O. 12875, EPA may not issue         Under E.O. 13084, EPA may not issue
New Source Performance Standard              a regulation that is not required by        a regulation that is not required by
(NSPS) units.                                statute and that creates a mandate upon     statute, that significantly affects or
   (9) Two new continuous monitoring         a state, local, or tribal government,       uniquely affects the communities of
systems were installed to determine          unless the Federal government provides      Indian tribal governments, and that
hydrogen sulfide content of commercial       the funds necessary to pay the direct       imposes substantial direct compliance
gas received from Northern States            compliance costs incurred by those          costs on those communities, unless the
Power. These systems were installed at       governments. If the mandate is              Federal government provides the funds
the crude heater and the reformer            unfunded, EPA must provide to the           necessary to pay the direct compliance
heaters.                                     Office of Management and Budget a           costs incurred by the tribal
   (10) Name change from Ashland             description of the extent of EPA’s prior    governments. If the mandate is
Petroleum Company to Marathon                consultation with representatives of        unfunded, EPA must provide to the
Ashland Petroleum, LLC.                      affected state, local, and tribal           Office of Management and Budget, in a
   (11) Property access restrictions. The    governments, the nature of their            separately identified section of the
company is required to maintain a fence      concerns, copies of written                 preamble to the rule, a description of
to restrict public access around it’s        communications from the governments,        the extent of EPA’s prior consultation
boundaries.                                  and a statement supporting the need to      with representatives of affected tribal
   Other restrictions on operations, fuel    issue the regulation. In addition, E.O.     governments, a summary of the nature
use, and fuel quality remain in effect       12875 requires EPA to develop an            of their concerns, and a statement
and unchanged from the previously            effective process permitting elected        supporting the need to issue the
Federally approved Order. The general        officials and other representatives of      regulation. In addition, E.O. 13084
compliance methodology consists of           state, local, and tribal governments ‘‘to   requires EPA to develop an effective
continuous emission monitors (CEMS),         provide meaningful and timely input in      process permitting elected and other
continuous monitoring systems (CMS),         the development of regulatory proposals     representatives of Indian tribal
and fuel sampling and analysis.              containing significant unfunded             governments ‘‘to provide meaningful
                                             mandates.’’ Today’s rule does not create    and timely input in the development of
Why Is the Request Approvable?               a mandate on state, local or tribal         regulatory policies on matters that
  After review of the SIP revision           governments. The rule does not impose       significantly or uniquely affect their
request, EPA finds that Amendment            any enforceable duties on these entities.   communities.’’ Today’s rule does not
Four meets the applicable requirements       Accordingly, the requirements of            significantly or uniquely affect the
of Clean Air Act section 110(a) and that     section 1(a) of E.O. 12875 do not apply     communities of Indian tribal
the revisions in Amendment Four have         to this rule.                               governments. Accordingly, the
              Federal Register / Vol. 64, No. 157 / Monday, August 16, 1999 / Rules and Regulations                              44411

requirements of section 3(b) of E.O.         no new requirements. Accordingly, no           § 52.1220   Identification of plan
13084 do not apply to this rule.             additional costs to State, local, or tribal      (c) * * *
                                             governments, or to the private sector,           (49) Approval—On December 31,
E. Regulatory Flexibility Act
                                             result from this action.                       1998, the Minnesota Pollution Control
   The Regulatory Flexibility Act (RFA)                                                     Agency submitted a request for a
generally requires an agency to conduct      G. Submission to Congress and the
                                                                                            revision to the Minnesota sulfur dioxide
a regulatory flexibility analysis of any     Comptroller General
                                                                                            (SO2) State Implementation Plan (SIP)
rule subject to notice and comment              The Congressional Review Act, 5             for Marathon Ashland Petroleum LLC
rulemaking requirements unless the           U.S.C. 801 et seq., as added by the Small      (Marathon). The site-specific SIP
agency certifies that the rule will not      Business Regulatory Enforcement                revision for Marathon was submitted in
have a significant economic impact on        Fairness Act of 1996, generally provides       the form of an Administrative Order
a substantial number of small entities.      that before a rule may take effect, the        (Order), and referred to as Amendment
Small entities include small businesses,     agency promulgating the rule must              Four.
small not-for-profit enterprises, and        submit a rule report, which includes a           (i) Incorporation by reference.
small governmental jurisdictions. This       copy of the rule, to each House of the           (A) For Marathon Ashland Petroleum,
final rule will not have a significant       Congress and to the Comptroller General        LLC, located in St. Paul Park,
impact on a substantial number of small      of the United States. EPA will submit a        Minnesota:
entities because SIP approvals under         report containing this rule and other            (1) Amendment Four to the
section 110 and subchapter I, part D of      required information to the U.S. Senate,       administrative order, dated and effective
the Clean Air Act do not create any new      the U.S. House of Representatives, and         December 22, 1998, and submitted
requirements but simply approve              the Comptroller General of the United          December 31, 1998.
requirements that the State is already       States prior to publication of the rule in       (ii) Additional material.
imposing. Therefore, because the             the Federal Register. A major rule               (A) A letter from Peder A. Larson to
Federal SIP approval does not create         cannot take effect until 60 days after it      David Ullrich, dated December 31, 1998,
any new requirements, I certify that this    is published in the Federal Register.          submitting Amendment Four for
action will not have a significant           This rule is not a ‘‘major’’ rule as           Marathon Ashland Petroleum, LLC.
economic impact on a substantial             defined by 5 U.S.C. 804(2).                    [FR Doc. 99–21012 Filed 8–13–99; 8:45 am]
number of small entities. Moreover, due                                                     BILLING CODE 6560–50–P
to the nature of the Federal-State           H. Petitions for Judicial Review
relationship under the Clean Air Act,          Under section 307(b)(1) of the Clean
preparation of flexibility analysis would    Air Act, petitions for judicial review of      ENVIRONMENTAL PROTECTION
constitute Federal inquiry into the                                                         AGENCY
                                             this action must be filed in the United
economic reasonableness of state action.
                                             States Court of Appeals for the
The Clean Air Act forbids EPA to base                                                       40 CFR Part 52
                                             appropriate circuit by October 15, 1999.
its actions concerning SIPs on such
                                             Filing a petition for reconsideration by       [R1–052–7211a; A–1–FRL–6417–5]
grounds. Union Electric Co., v. U.S.
                                             the Administrator of this final rule does
EPA, 427 U.S. 246, 255–66 (1976); 42                                                        Approval and Promulgation of Air
                                             not affect the finality of this rule for the
U.S.C. 7410(a)(2).                                                                          Quality Implementation Plan;
                                             purposes of judicial review nor does it
F. Unfunded Mandates                         extend the time within which a petition        Connecticut; Approval of National Low
                                             for judicial review may be filed, and          Emission Vehicle Program
   Under section 202 of the Unfunded
Mandates Reform Act of 1995                  shall not postpone the effectiveness of        AGENCY: Environmental Protection
(‘‘Unfunded Mandates Act’’), signed          such rule or action. This action may not       Agency (EPA).
into law on March 22, 1995, EPA must         be challenged later in proceedings to
                                                                                            ACTION: Direct final rule.
prepare a budgetary impact statement to      enforce its requirements. (See section
accompany any proposed or final rule         307(b)(2).)                                    SUMMARY:    EPA is taking direct final
that includes a Federal mandate that         List of Subjects in 40 CFR Part 52             action to approve State Implementation
may result in estimated annual costs to                                                     Plan (SIP) revisions submitted by the
State, local, or tribal governments in the     Environmental protection, Air                State of Connecticut on February 7,
aggregate; or to private sector, of $100     pollution control, Incorporation by            1996 and February 18, 1999, committing
million or more. Under section 205,          reference, Sulfur dioxide.                     that the State will accept compliance
EPA must select the most cost-effective        Dated: July 22, 1999                         with the National Low Emission Vehicle
and least burdensome alternative that        Jerri-Anne Garl,                               (National LEV) program requirements as
achieves the objectives of the rule and      Acting Regional Administrator, Region 5.       a compliance option for new motor
is consistent with statutory                                                                vehicles sold in the State, which had
requirements. Section 203 requires EPA         Part 52, chapter I, title 40 of the Code     also adopted the California Low
to establish a plan for informing and        of Federal Regulations is amended as           Emission Vehicle (CAL LEV) program.
advising any small governments that          follows:                                       Auto manufacturers have agreed to sell
may be significantly or uniquely                                                            cleaner vehicles meeting the National
                                             PART 52—[AMENDED]
impacted by the rule.                                                                       LEV standards throughout these States
   EPA has determined that the approval        1. The authority citation for part 52        for the duration of the manufacturers’
action promulgated does not include a        continues to read as follows:                  commitments to the National LEV
Federal mandate that may result in                                                          program. This SIP revision is required
                                               Authority: 42 U.S.C. 7401 et seq.
estimated annual costs of $100 million                                                      as part of the agreement between States
or more to either State, local, or tribal    Subpart Y—Minnesota                            and automobile manufacturers to ensure
governments in the aggregate, or to the                                                     the continuation of the National LEV
private sector. This Federal action            2. Section 52.1220 is amended by             program to supply clean cars throughout
approves pre-existing requirements           adding paragraph (c)(49) to read as            most of the country, beginning with
under State or local law, and imposes        follows:                                       1999 model year vehicles in
44412         Federal Register / Vol. 64, No. 157 / Monday, August 16, 1999 / Rules and Regulations

Northeastern States and extending to         manufacturers to design and test             actions for the other States that have
other States beginning with 2001 model       vehicles to one set of standards             elected to join the National LEV
year vehicles.                               nationwide. The National LEV program         program in the future.
DATES: This rule is effective on October     demonstrates how cooperative,                   Connecticut has adopted a State clean
15, 1999 without further notice, unless      partnership efforts can produce a            vehicle program identical to the CAL
EPA receives adverse comment by              smarter, cheaper program that reduces        LEV program (without the zero emission
September 15, 1999. If we receive such       regulatory burden while increasing           vehicle requirements) pursuant to
comment, EPA will publish a timely           protection of the environment and            section 177 of the Clean Air Act. The
withdrawal of the direct final rule in the   public health.                               State has also modified that regulation
Federal Register informing the public           The National LEV program will result      accepting compliance with National
that this rule will not take effect.         in substantial reductions in non-            LEV as an alternative for auto
ADDRESSES: Comments may be mailed to         methane organic gases (NMOG) and             manufacturers to comply with the CAL
Susan Studlien, Deputy Director, Office      nitrous oxides (NOx), which contribute       LEV requirements. The State’s
of Ecosystem Protection (mail code           to unhealthy levels of smog in many          regulation provides that for the duration
CAA), US Environmental Protection            areas across the country. National LEV       of the State’s participation in National
Agency, Region I, One Congress Street,       vehicles are 70% cleaner than today’s        LEV, manufacturers may comply with
Suite 1100, Boston, MA 02114. Copies         model requirements under the Clean Air       National LEV or equally stringent
of the State submittal and EPA’s             Act. This voluntary program provides         mandatory federal standards in lieu of
technical support document are               auto manufacturers flexibility in            compliance with a State program
available for public inspection during       meeting the associated standards as well     adopted pursuant to section 177. The
normal business hours, by appointment,       as the opportunity to harmonize their        regulation accepts National LEV as a
at the Office of Ecosystem Protection,       production lines and make vehicles           compliance alternative for requirements
                                             more efficiently. National LEV vehicles      applicable to passenger cars, light-duty
US Environmental Protection Agency,
                                             are estimated to cost an additional $76      trucks, and medium-duty trucks
Region I, One Congress Street, 11th
                                             above the price of vehicles otherwise        designed to operate on gasoline. The
floor, Boston, MA, and Air and
                                             required today, but it is expected that      regulation further provides that the
Radiation Docket and Information
                                             due to factors such as economies of          State’s participation in National LEV
Center, US Environmental Protection
                                             scale and historical trends related to       extends until model year 2006, if by
Agency, 401 M Street, SW, (LE–131),
                                             emission control costs, the per vehicle      December 15, 2000, EPA adopts
Washington, DC 20460. In addition, the
                                             cost will be even lower. This                mandatory standards at least as
information is available at the Bureau of
                                             incremental cost is less than 0.5% of the    stringent as the National LEV standards
Air Management, Department of
                                             price of an average new car. In addition,    and such standards would apply to new
Environmental Protection, State Office       the National LEV program will help           motor vehicles beginning in model year
Building, 79 Elm Street, Hartford, CT        ozone nonattainment areas across the         2004, 2005 or 2006. If EPA does not
06106–1630.                                  country improve their air quality as well    adopt such standards by that date, the
FOR FURTHER INFORMATION CONTACT:             as reduce pressure to make further,          State’s participation in National LEV
Robert C. Judge, (617) 918–1045.             more costly emission reductions from         would extend only until model year
SUPPLEMENTARY INFORMATION:                   stationary industrial sources.               2004. Through these regulations,
I. Background                                   Because it is a voluntary program,        Connecticut has adequately committed
                                             National LEV was set up to come into         to the National LEV program, as
   On January 7, 1998, (63 FR 926) the       effect, and will remain in effect, only if   provided in the final National LEV rule.
Environmental Protection Agency (EPA)        the Northeastern State and auto                 The final National LEV rule also
published a final rule outlining a           manufacturer participants commit to the      stated that if States submitted SIP
voluntary nationwide clean car               program and abide by their                   revisions containing language
program, designed to reduce smog and         commitments. The States and                  substantively identical to the language
other pollution from new motor               manufacturers initially committed to the     in the regulations without additional
vehicles. The National LEV regulations       program through opt-in notifications to      conditions, and if the submissions met
allow auto manufacturers to commit to        EPA, which were sufficient for EPA to        the Clean Air Act requirements for
meet tailpipe standards for cars and         find that National LEV had come into         approvable SIP submissions, EPA would
light-duty trucks that are more stringent    effect. The National LEV regulations         not need to go through notice-and-
than EPA can mandate. The regulations        provide that the second stage of the         comment rulemaking to approve the SIP
provided that the program would come         State commitments is to be made              revisions. In the National LEV
into effect only if northeastern States      through SIP revisions that incorporate       rulemaking, EPA already provided full
and the auto manufacturers voluntarily       the State commitments to National LEV        opportunity for public comment on the
signed up for it. On March 9, 1998 (63       in State regulations, which EPA will         language for the SIP revisions. Thus, as
FR 11374), EPA found that nine               approve into the federally-enforceable       discussed in more detail in the final
northeastern States and 23                   SIPs. The National LEV regulations laid      rule, the requirements for EPA approval
manufacturers had opted into the             out the elements to be incorporated in       are easily verified objective criteria. See
National LEV program and that the            the SIP revisions, the timing for such       63 FR 936 (January 7, 1998). While EPA
program is in effect. Now that it is in      revisions, and the language (or              believes that it could have appropriately
effect, National LEV is enforceable in       substantively similar language) that         approved the Connecticut submission
the same manner as any other federal         needs to be included in a SIP revision       without providing for additional notice
new motor vehicle program. National          to allow EPA to approve the revision as      and comment, EPA nonetheless decided
LEV will achieve significant air             adequately committing the State to the       to take this action as a direct final
pollution reductions nationwide. In          National LEV program. In today’s             rulemaking, which allows an
addition, the program provides               action, EPA is approving the National        opportunity for further public comment.
substantial harmonization of federal and     LEV SIP revision for Connecticut as          Here, EPA is not under a timing
California new motor vehicle standards       adequately committing the State to the       constraint that would support a shorter
and test procedures, which enables           program. EPA expects to take similar         rulemaking process, and thus EPA
               Federal Register / Vol. 64, No. 157 / Monday, August 16, 1999 / Rules and Regulations                       44413

decided there was no need to deviate         consulting, E.O. 12875 requires EPA to       prior consultation with representatives
from the Agency’s usual procedures for       provide to the OMB a description of the      of affected tribal governments, a
SIP approvals.                               extent of EPA’s prior consultation with      summary of the nature of their concerns,
                                             representatives of affected State, local,    and a statement supporting the need to
Final Action
                                             and tribal governments, the nature of        issue the regulation. In addition,
  EPA has evaluated the submitted SIP        their concerns, copies of written            Executive Order 13084 requires EPA to
revision submitted by Connecticut and        communications from the governments,         develop an effective process permitting
has determined that it is consistent with    and a statement supporting the need to       elected officials and other
the EPA National LEV regulations and         issue the regulation. In addition, E.O.      representatives of Indian tribal
meets the section 110 requirements for       12875 requires EPA to develop an             governments ‘‘to provide meaningful
SIP approvals. Therefore, EPA is             effective process permitting elected         and timely input in the development of
approving the Connecticut low emission       officials and other representatives of       regulatory policies on matters that
vehicle rule as submitted on February 7,     State, local, and tribal governments ‘‘to    significantly or uniquely affect their
1996 and February 18, 1999, into the         provide meaningful and timely input in       communities.’’
Connecticut SIP.                             the development of regulatory proposals         Today’s rule does not significantly or
  EPA is publishing this action without      containing significant unfunded              uniquely affect the communities of
prior proposal because the Agency            mandates.’’                                  Indian tribal governments. This action
views this as a noncontroversial                Today’s rule does not create a            does not involve or impose any
amendment and anticipates no adverse         mandate on State, local or tribal            requirements that affect Indian Tribes.
comments. However, in the ‘‘Proposed         governments that does not already exist      Accordingly, the requirements of
Rules’’ section of this Federal Register     as a matter of State law. EPA is simply      section 3(b) of E.O. 13084 do not apply
publication, EPA is publishing a             approving a State regulation under the       to this rule.
separate document that will serve as the     Clean Air Act. Accordingly, the
                                                                                          E. Regulatory Flexibility Act
proposal to approve the SIP revision if      requirements of section 1(a) of E.O.
adverse comments are filed. This rule        12875 do not apply to this rule.                The Regulatory Flexibility Act (RFA)
will be effective October 15, 1999                                                        generally requires an agency to conduct
                                             C. Executive Order 13045                     a regulatory flexibility analysis of any
without further notice unless the
Agency receives adverse comment by              Protection of Children from               rule subject to notice and comment
September 15, 1999.                          Environmental Health Risks and Safety        rulemaking requirements unless the
  If EPA receives adverse comment,           Risks (62 FR 19885, April 23, 1997),         agency certifies that the rule will not
EPA will publish a timely withdrawal in      applies to any rule that: (1) Is             have a significant economic impact on
                                             determined to be ‘‘economically              a substantial number of small entities.
the Federal Register informing the
                                             significant’’ as defined under E.O.          Small entities include small businesses,
public that the rule will not take effect.
                                             12866, and (2) concerns an                   small not-for-profit enterprises, and
EPA will address all public comments
                                             environmental health or safety risk that     small governmental jurisdictions. This
received in a subsequent final rule
                                             EPA has reason to believe may have a         final rule will not have a significant
based on the proposed rule. EPA will
                                             disproportionate effect on children. If      impact on a substantial number of small
not institute a second comment period
                                             the regulatory action meets both criteria,   entities because SIP approvals under
on this action. Any parties interested in
                                             the Agency must evaluate the                 section 110 and subchapter I, part D of
commenting must do so at this time.
                                             environmental health or safety effects of    the Clean Air Act do not create any new
  Nothing in this action should be
                                             the planned rule on children, and            requirements but simply approve
construed as permitting or establishing
                                             explain why the planned regulation is        requirements that the State is already
a precedent for any future request for
                                             preferable to other potentially effective    imposing. Therefore, because the
revision to any State Implementation
                                             and reasonably feasible alternatives         Federal SIP approval does not create
Plan. Each request for revision to the
                                             considered by the Agency.                    any new requirements, I certify that this
State implementation plan shall be
                                                This rule is not subject to E.O. 13045    action will not have a significant
considered separately in light of specific
                                             because it is not ‘‘economically             economic impact on a substantial
technical, economic, and environmental
                                             significant’’ as defined under E. O.         number of small entities. Moreover, due
factors and in relation to relevant
                                             12866, and does not involve an action        to the nature of the Federal-State
statutory and regulatory requirements.
                                             that addresses environmental or safety       relationship under the Clean Air Act,
II. Administrative Requirements              risks.                                       preparation of flexibility analysis would
                                                                                          constitute Federal inquiry into the
A. Executive Order 12866                     D. Executive Order 13084
                                                                                          economic reasonableness of State
  The Office of Management and Budget           Under E.O. 13084, EPA may not issue       action. The Clean Air Act forbids EPA
(OMB) has exempted this regulatory           a regulation that is not required by         to base its actions concerning SIPs on
action from Executive Order (E.O.)           statute, that significantly uniquely         such grounds. Union Electric Co., v.
12866, entitled ‘‘Regulatory Planning        affects the communities of Indian tribal     U.S. EPA, 427 U.S. 246, 255–66 (1976);
and Review.’’                                governments, and that imposes                42 U.S.C. 7410(a)(2).
                                             substantial direct compliance costs on
B. Executive Order 12875                     those communities, unless the Federal        F. Unfunded Mandates
   Under E.O. 12875, EPA may not issue       government provides the funds                   Under sections 202 of the Unfunded
a regulation that is not required by         necessary to pay the direct compliance       Mandates Reform Act of 1995
statute and that creates a mandate upon      costs incurred by the tribal                 (‘‘Unfunded Mandates Act’’), signed
a State, local, or tribal government,        governments, or EPA consults with            into law on March 22, 1995, EPA must
unless the Federal government provides       those governments. If EPA complies by        prepare a budgetary impact statement to
the funds necessary to pay the direct        consulting, E.O. 13084 requires EPA to       accompany any proposed or final rule
compliance costs incurred by those           provide to the OMB, in a separately          that includes a Federal mandate that
governments, or EPA consults with            identified section of the preamble to the    may result in estimated costs to State,
those governments. If EPA complies by        rule, a description of the extent of EPA’s   local, or tribal governments in the
44414           Federal Register / Vol. 64, No. 157 / Monday, August 16, 1999 / Rules and Regulations

aggregate, or to the private sector, of               H. Petitions for Judicial Review                     § 52.370    Identification of plan
$100 million or more. Under section                     Under section 307(b)(1) of the Clean               *       *    *     *    *     *
205, EPA must select the most cost-                   Air Act, petitions for judicial review of               (c) * * *
effective and least burdensome                        this action must be filed in the United                 (79) Revisions to the State
alternative that achieves the objectives              States Court of Appeals for the                      Implementation Plan submitted by the
of the rule and is consistent with                    appropriate circuit by October 15, 1999.             Connecticut Department of
statutory requirements. Section 203                   Filing a petition for reconsideration by             Environmental Protection on February
requires EPA to establish a plan for                  the Administrator of this final rule does            7, 1996 and February 18, 1999.
informing and advising any small                      not affect the finality of this rule for the            (i) Incorporation by reference.
governments that may be significantly                 purposes of judicial review nor does it                 (A) Connecticut regulation section
or uniquely impacted by the rule.                     extend the time within which a petition              22a–174–36, entitled ‘‘Low Emission
                                                      for judicial review may be filed, and                Vehicles’’ as dated and effective by
   EPA has determined that this final                                                                      determination of the Secretary of State
approval action does not include a                    shall not postpone the effectiveness of
                                                      such rule or action. This action may not             on December 23, 1994.
Federal mandate that may result in                                                                            (B) Connecticut regulation section
                                                      be challenged later in proceedings to
estimated costs of $100 million or more                                                                    22a–174–36(g), entitled ‘‘Alternative
                                                      enforce its requirements. (See section
to either State, local, or tribal                     307(b)(2).) EPA encourages interested                Means of Compliance via the National
governments in the aggregate, or to the               parties to comment in response to the                Low Emission Vehicle (LEV) Program’’
private sector. This Federal action                   proposed rule rather than petition for               as dated and effective by determination
approves pre-existing requirements                    judicial review, unless the objection                of the Secretary of State on January 29,
under State or local law, and imposes                 arises after the comment period allowed              1999.
no new requirements. Accordingly, no                  for in the proposal.                                    (ii) Additional material
additional costs to State, local, or tribal                                                                   (A) Letter from the Connecticut
governments, or to the private sector,                List of Subjects in 40 CFR Part 52                   Department of Environmental Protection
result from this action.                                Environmental protection, Air                      dated February 7, 1996 submitting a
                                                      pollution control, Carbon monoxide,                  revision to the Connecticut State
G. Submission to Congress and the                     Hydrocarbons, Incorporation by                       Implementation Plan for the Low
Comptroller General                                   reference, Intergovernmental relations,              Emission Vehicle program.
  The Congressional Review Act, 5                     Nitrogen dioxide, Ozone, Reporting and                  (B) Letter from the Connecticut
                                                      recordkeeping requirements.                          Department of Environmental Protection
U.S.C. 801 et seq., as added by the Small
                                                        Dated: July 28, 1999.                              dated February 18, 1999 submitting a
Business Regulatory Enforcement
                                                      John P. DeVillars,                                   revision to the Connecticut State
Fairness Act of 1996, generally provides
                                                                                                           Implementation Plan for the National
that before a rule may take effect, the               Regional Administrator, Region I.
                                                                                                           Low Emission Vehicle program to be a
agency promulgating the rule must                       Part 52 of chapter I, title 40 of the              compliance option under the State’s
submit a rule report, which includes a                Code of Federal Regulations is amended               Low Emission Vehicle Program.
copy of the rule, to each House of the                as follows:                                             3. In § 52.385, Table 52.385 is
Congress and to the Comptroller General                                                                    amended by adding new entries in State
of the United States. EPA will submit a               PART 52—[AMENDED]                                    citations for Section 22a–174–36,
report containing this rule and other                   1. The authority citation for part 52              entitled ‘‘Low Emission Vehicles’’ and
required information to the U.S. Senate,              continues to read as follows:                        Section 22a–174–36(g), entitled
the U.S. House of Representatives, and                                                                     ‘‘Alternative Means of Compliance via
                                                        Authority: 42 U.S.C. 7401 et seq.
the Comptroller General of the United                                                                      the National Low Emission Vehicle
States prior to publication of the rule in            Subpart H—Connecticut                                (LEV) Program’’ to read as follows:
the Federal Register. This rule is not a
                                                        2. Section 52.370 is amended by                    § 52.385 EPA—approved Connecticut
‘‘major rule’’ as defined by 5 U.S.C.                                                                      Regulations
804(2).                                               adding paragraph (c)(79) to read as
                                                      follows:                                             *       *     *      *     *

                                        TABLE 52.385—EPA-APPROVED RULES AND REGULATIONS
                                                                           Dates
  Connecticut                                                                               Federal
                                      Title/
     state                                                          Date        Date ap-    Register      52.370             Comments/ description
                                     subject
    citation                                                      adopted       proved by   citation
                                                                  by State         EPA


        *                    *                        *                          *                      *                   *                 *
22a–174–36 ......   Low Emission Vehicles .....................   12/23/94      August      [Insert FR (c)(79) ....    Approval of Low Emission Vehicle
                                                                                   16,         citation                  Program.
                                                                                   1999.       from
                                                                                               pub-
                                                                                               lished
                                                                                               date].
22a–174–36(g) ..    Alternative Means of Compliance via           1/29/99 ...   August      [Insert FR (c)(79) ....    Approval of Alternative Means of
                      the National Low Emission Vehi-                             16,          citation                  Compliance via the National Low
                      cle (LEV) Program.                                          1999.        from                      Emission Vehicle (LEV) Program
                                                                                               pub-                      for the ‘‘California’’ low emission
                                                                                               lished                    vehicle program adopted above.
                                                                                               date].
                Federal Register / Vol. 64, No. 157 / Monday, August 16, 1999 / Rules and Regulations                     44415

                           TABLE 52.385—EPA-APPROVED RULES AND REGULATIONS—Continued
                                                            Dates
  Connecticut                                                               Federal
                                Title/
     state                                             Date     Date ap-    Register     52.370        Comments/ description
                               subject
    citation                                         adopted    proved by   citation
                                                     by State      EPA


                                                            *******



[FR Doc. 99–21004 Filed 8–13–99; 8:45 am]   Boulevard, Chicago, Illinois 60604,          delay attainment or prevent
BILLING CODE 6560–50–P                      (312) 353–8328.                              maintenance of the applicable National
                                            SUPPLEMENTARY INFORMATION: This              Ambient Air Quality Standards
                                            supplementary information section is         (NAAQS). Additionally, the federal
ENVIRONMENTAL PROTECTION                    organized as follows:                        requirement limits the demonstration to
AGENCY                                      A. What Action Is EPA Taking Today?          no more than 75 percent of the NAAQS.
                                            B. Why Was this SIP Revision Submitted?      Murphy Oil has requested an alternate
40 CFR Part 52                              C. Why Can We Approve this Request?          emission limit of 3.0 lbs/MMBTU for
[WI91–01–7322a; FRL–6414–7]                 D. What Is the Background for this           any combustion unit when combusting
                                                Rulemaking?                              #6 fuel oil. The WDNR air quality
Approval and Promulgation of                A. What Action Is EPA Taking Today?          modeling evaluates this alternate limit
Implementation Plans; Wisconsin                                                          in comparison to the SO2 NAAQS.
                                               We are approving WDNR’s February          Additional information is available in
AGENCY: Environmental Protection            26, 1999 request for a site-specific         our June 6, 1997 Technical Support
Agency (EPA).                               revision to the Wisconsin SO2 SIP.           Document (TSD).
ACTION: Direct final rule.                  Specifically, we are approving: (A) the
                                            SO2 emission limits contained in             C. Why Can We Approve This Request?
SUMMARY:   We are approving a site-         Wisconsin Air Pollution Control
specific revision to the Wisconsin sulfur                                                   We are approving the current SIP
                                            Operation Permit No. 95–SDD–120–OP,          submittal as a Direct Final Federal
dioxide (SO2) State Implementation          issued by the WDNR to Murphy Oil,
Plan (SIP) SIP for Murphy Oil located in                                                 Register document because the source
                                            USA on February 17, 1999; and (B) a          has followed the procedures of
Superior, Wisconsin. The Wisconsin          modeled attainment demonstration
Department of Natural Resources                                                          Wisconsin State Rule NR 417.07(5) for
                                            assessing the impact of the alternate SO2    obtaining alternate emission limits,
(WDNR) submitted this SIP revision on       limits for Murphy Oil, located in
February 26, 1999 in response to a                                                       which we approved on May 21, 1993 at
                                            Superior (Douglas County), Wisconsin.        58 FR 29538. Our June 7, 1999 TSD
request for an alternate SO2 emission
limitation by Murphy Oil. The rationale     B. Why Was this SIP Revision                 contains details of the criteria Murphy
for the approval and other information      Submitted?                                   Oil met to have the alternate emission
are provided in this document.                Murphy Oil owns and operates a             limit approved. The State submitted
                                            petroleum refinery in Superior,              modeling results incorporating the 3.0
DATES: This action is effective on                                                       lbs/MMBTU proposed alternative limit
October 15, 1999 without further notice,    Wisconsin. The categorical statewide
                                            emission limit that we had approved on       for two separate operating options, one
unless EPA receives relevant adverse                                                     with lower SO2 emission limits and
comments by September 15, 1999. If          May 21, 1993 for petroleum refineries is
                                            0.8 pounds of SO2 per million British        another with higher SO2 emission
adverse comments are received, EPA                                                       limits. The NAAQS for SO2 consist of a
will publish a timely withdrawal of the     Thermal Units (lbs/MMBTU). Also
                                            included in our May 21, 1993 final           3-hour level of 1300 micrograms per
direct final rule in the Federal Register                                                cubic meter (µg/m3), a 24-hour level of
informing the public that the rule will     approval of Wisconsin’s Statewide SO2
                                            rules was NR 417.07(5), which                365 µg/m3 and an annual arithmetic
not take effect.                                                                         mean of 80 µg/m3. Modeling results
                                            established the State’s procedures for
ADDRESSES: Written comments may be                                                       from the option with the higher SO2
                                            sources to obtain alternate emission
mailed to: Carlton Nash, Chief,             limitations. However, in both our            emission limits, combined with
Regulation Development Section, Air         January 2, 1992 proposed rulemaking          background concentrations, show a 3-
Programs Branch (AR–18J), United            and our May 21, 1993 final action, we        hour concentration of 642.0 µg/m3 (49.4
States Environmental Protection             noted that Wisconsin had to submit for       percent of NAAQS), a 24-hour
Agency, 77 West Jackson Boulevard,          approval all relaxed State limits as site-   concentration of 211.4 µg/m3 (57.9
Chicago, Illinois 60604. Copies of the      specific SIP revisions pursuant to           percent of NAAQS) and an annual
documents relevant to this action are       section 110 of the Clean Air Act. We         concentration of 24.1 µg/m3 (30.1
available for inspection during normal      also stated that any previous SIP            percent of NAAQS). Therefore, the
business hours at the above address.        limitations would remain in effect and       modeling results for both options show
(Please telephone Christos Panos at         enforceable until we approved the            that the NAAQS for SO2 will be attained
(312) 353–8328, before visiting the         proposed relaxed limitations into the        at the required 75 percent level.
Region 5 office.)                           SO2 SIP.                                     D. What Is the Background for This
FOR FURTHER INFORMATION CONTACT:              Both our alternative emission limit
                                                                                         Rulemaking?
Christos Panos, Regulation Development      requirements and WDNR’s NR 417.05(5)
Section, Air Programs Branch (AR–18J),      require, among other things, that before       On April 26, 1984 we notified the
Air and Radiation Division, United          an alternate emission limit can be           Governor of Wisconsin that the
States Environmental Protection             approved, it must be demonstrated that       Wisconsin SO2 SIP was inadequate to
Agency, Region 5, 77 West Jackson           the proposed alternate limit will not        ensure the protection of the primary and
44416         Federal Register / Vol. 64, No. 157 / Monday, August 16, 1999 / Rules and Regulations

secondary SO2 NAAQS. The State              implementation plan. Each request for          Today’s rule does not significantly or
responded to the notice of SIP              revision to the state implementation         uniquely affect the communities of
deficiency with a Statewide SO2             plan shall be considered separately in       Indian tribal governments and does not
emission limitations rule (NR 417.07).      light of specific technical, economic,       impose substantial direct compliance
On January 2, 1992 at 57 FR 25, we          and environmental factors and in             costs on those communities.
proposed to approve the majority of         relation to relevant statutory and           Accordingly, the requirements of
Wisconsin’s Statewide SO2 rules. A          regulatory requirements.                     section 3(b) of E.O. 13084 do not apply
final approval of the majority of NR                                                     to this rule.
                                            Administrative Requirements
417.07 was published on May 21, 1993
                                                                                         E. Regulatory Flexibility Act
at 58 FR 29538 [we took no action on        A. Executive Order (E.O.) 12866
NR 417.07(2)(e) and NR 417.07(2)(f)].                                                       The Regulatory Flexibility Act, 5
                                               The Office of Management and Budget
   As allowed under NR 417.07(5),                                                        U.S.C. 600 et seq., generally requires an
                                            (OMB) has exempted this regulatory
Murphy Oil initially submitted a request                                                 agency to conduct a regulatory
                                            action from E.O. 12866, entitled
for an alternate SO2 emission limit in                                                   flexibility analysis of any rule subject to
                                            ‘‘Regulatory Planning and Review.’’
1985 and proposed the first alternate                                                    notice and comment rulemaking
SO2 emission limitations in 1986. The       B. Executive Order 12875                     requirements unless the agency certifies
WDNR concluded in an August 1988               Under E.O. 12875, EPA may not issue       that the rule will not have a significant
memorandum that Murphy Oil’s request        a regulation that is not required by         economic impact on a substantial
for an alternate SO2 emission limit was     statute and that creates a mandate upon      number of small entities. Small entities
approvable. However, the State did not      a state, local, or tribal government,        include small businesses, small not-for-
proceed at that time to propose an          unless the federal government provides       profit enterprises, and small
operating permit incorporating the          the funds necessary to pay the direct        governmental jurisdictions. This final
alternate emission limit or to request      compliance costs incurred by those           rule will not have a significant impact
public input on the proposed alternate      governments, or EPA consults with            on a substantial number of small entities
emission limit, as required by the State    those governments. Today’s rule does         because SIP approvals under section
rule.                                       not create a mandate on State, local or      110 and subchapter I, part D, of the Act
                                            tribal governments. The rule does not        do not create any new requirements, but
EPA Action                                                                               simply approve requirements that the
                                            impose any enforceable duties on these
   In this rulemaking action, EPA           entities. Accordingly, the requirements      State is already imposing. Therefore,
approves the SO2 emission limits in         of section 1(a) of E.O. 12875 do not         because the federal SIP approval does
Wisconsin Air Pollution Control             apply to this rule.                          not impose any new requirements, I
Operation Permit No. 95–SDD–120–OP,                                                      certify that this action will not have a
issued by the WDNR to Murphy Oil            C. Executive Order 13045                     significant impact on small entities.
USA on February 17, 1999, and the             Protection of Children from                Moreover, due to the nature of the
modeled attainment demonstration            Environmental Health Risks and Safety        federal-state relationship under the Act,
using the alternate SO2 limits for          Risks (62 FR 19885, April 23, 1997),         preparation of a regulatory flexibility
Murphy Oil in Superior (Douglas             applies to any rule that: (1) is             analysis would constitute federal
County), Wisconsin. The EPA is              determined to be ‘‘economically              inquiry into the economic
publishing this action without prior        significant’’ as defined under E.O.          reasonableness of state action. The Act
proposal because the Agency views this      12866, and (2) concerns an                   forbids EPA from basing its actions
as a noncontroversial amendment and         environmental health or safety risk that     concerning SIPs on such grounds.
anticipates no adverse comments.            EPA has reason to believe may have a         Union Electric Co. v. U.S. E.P.A., 427
However, in the proposed rules section      disproportionate effect on children. If      U.S. 246, 256–66 (1976); 42 U.S.C.
of this Federal Register publication, the   the regulatory action meets both criteria,   7410(a)(2).
EPA is publishing a separate document       the Agency must evaluate the
that will serve as the proposal to                                                       F. Unfunded Mandates
                                            environmental health or safety effects of
approve the State Plan should relevant      the planned rule on children, and               Under section 202 of the Unfunded
adverse comments be filed. This rule        explain why the planned regulation is        Mandates Reform Act of 1995
will be effective October 15, 1999          preferable to other potentially effective    (Unfunded Mandates Act), signed into
without further notice unless relevant      and reasonably feasible alternatives         law on March 22, 1995, EPA must
adverse comments are received by            considered by the Agency.                    prepare a budgetary impact statement to
September 15, 1999. If EPA receives           This rule is not subject to E.O. 13045     accompany any proposed or final rule
such comments, this action will be          because it does not involve decisions        that includes a federal mandate that
withdrawn before the effective date by      intended to mitigate environmental           may result in estimated costs to state,
publishing a subsequent document that       health or safety risks.                      local, or tribal governments in the
will withdraw the final action. All                                                      aggregate, or to private sector, of $100
public comments received will then be       D. Executive Order 13084                     million or more. Under section 205,
addressed in a subsequent final rule           Under E.O. 13084, EPA may not issue       EPA must select the most cost-effective
based on the proposed action. The EPA       a regulation that is not required by         and least burdensome alternative that
will not institute a second comment         statute, that significantly affects or       achieves the objectives of the rule and
period. Any parties interested in           uniquely affects the communities of          is consistent with statutory
commenting on this action should do so      Indian tribal governments, and that          requirements. Section 203 requires EPA
at this time. If no such comments are       imposes substantial direct compliance        to establish a plan for informing and
received, the public is advised that this   costs on those communities, unless the       advising any small governments that
action will be effective October 15,        federal government provides the funds        may be significantly or uniquely
1999.                                       necessary to pay the direct compliance       impacted by the rule.
   Nothing in this action should be         costs incurred by the tribal                    The EPA has determined that the
construed as permitting or allowing or      governments, or EPA consults with            approval action promulgated does not
establishing a precedent for any future     those governments.                           include a federal mandate that may
               Federal Register / Vol. 64, No. 157 / Monday, August 16, 1999 / Rules and Regulations                           44417

result in estimated costs of $100 million         Authority: 42 U.S.C. 7401–7671q.         1999. If EPA does receive adverse
or more to either state, local, or tribal       2. Section 52.2570 is amended by           comments, we will publish a timely
governments in the aggregate, or to the       adding paragraph (c)(99) to read as          withdrawal of the direct final rule in the
private sector. This federal action           follows:                                     Federal Register and inform the public
approves pre-existing requirements                                                         that the rule will not take effect.
under state or local law, and imposes no      § 52.2570   Identification of plan.          ADDRESSES: You may mail comments to
new requirements. Accordingly, no             *       *    *     *     *                   Susan Studlien, Deputy Director, Office
additional costs to state, local, or tribal      (c) * * *                                 of Ecosystem Protection, EPA Region 1
governments, or to the private sector,           (99) On February 26, 1999, the State      (CAA), One Congress Street, Suite 1100
result from this action.                      of Wisconsin submitted a site-specific       (CAA), Boston, MA 02114. You may
                                              revision to the sulfur dioxide (SO2) SIP     also email comments to
G. Submission to Congress and the             for Murphy Oil USA located in Superior
Comptroller General                                                                        cairns.matthew@epa.gov.
                                              (Douglas County), Wisconsin. This SIP          You may review copies of the relevant
   The Congressional Review Act, 5            revision was submitted in response to a      documents to this action by
U.S.C. 801 et seq., as added by the Small     January 1, 1985, request for an alternate    appointment during normal business
Business Regulatory Enforcement               SO2 emission limitation by Murphy Oil,       hours at the Office Ecosystem
Fairness Act of 1996, generally provides      in accordance with the procedures of         Protection, EPA Region 1, One Congress
that before a rule may take effect, the       Wisconsin State Rule NR 417.07(5) for        Street, Boston, Massachusetts; the Air
agency promulgating the rule must             obtaining alternate emission limits, as      and Radiation Docket and Information
submit a rule report, which includes a        was approved by EPA in paragraph             Center, USEPA, 401 M Street, S.W.,
copy of the rule, to each House of the        (c)(63) of this section.                     (LE–131), Washington, DC; and the Air
Congress and to U.S. Senate, the U.S.            (i) Incorporation by reference.           Resources Division, Department of
House of Representatives, and the                (A) AIR POLLUTION CONTROL                 Environmental Services, 64 North Main
Comptroller General of the United             OPERATION PERMIT NO. 95–DD–120–              Street, Concord, New Hampshire.
States prior to publication of the rule in    P, issued by the Wisconsin Department        FOR FURTHER INFORMATION CONTACT:
the Federal Register. A major rule            of Natural Resources (WDNR) to               Matthew B. Cairns at 617–918–1667 or
cannot take effect until 60 days after it     Murphy Oil USA on February 17, 1999.         cairns.matthew@epa.gov.
is published in the Federal Register.            (ii) Additional material.
                                                 (A) Analysis and Preliminary              SUPPLEMENTARY INFORMATION: This
This rule is not a ‘‘major’’ rule as                                                       section is organized as follows:
defined by 5 U.S.C. 804(2).                   Determination for the Proposed
                                                                                           What action is EPA taking today?
                                              Operation Permit for the Operation of        What is General Conformity?
H. Petitions for Judicial Review              Process Heaters and Processes Emitting       Where does General Conformity apply?
   Under section 307(b)(1) of the Act,        Sulfur Dioxide for Murphy Oil,               Who must follow General Conformity?
petitions for judicial review of this         performed by the WDNR on September           How does General Conformity differ from
action must be filed in the United States     18, 1998. This document contains a             Transportation Conformity?
Court of Appeals for the appropriate          source description, analysis of the          What did New Hampshire submit to EPA for
                                              alternate emission limitation request,         approval?
circuit by October 15, 1999. Filing a                                                      Why did New Hampshire have to develop its
petition for reconsideration by the           and an air quality review, which
                                                                                             own General Conformity Rule?
Administrator of this final rule does not     includes the results of an air quality       Why must New Hampshire’s Rule be
affect the finality of this rule for          modeling analysis demonstrating                federally enforceable?
purposes of judicial review nor does it       modeled attainment of the SO2 NAAQS          How does New Hampshire’s General
extend the time within which a petition       using the alternate emission limit for         Conformity Rule meet the requirements of
for judicial review may be filed, and         Murphy Oil.                                    a federally enforceable General Conformity
shall not postpone the effectiveness of       [FR Doc. 99–21000 Filed 8–13–99; 8:45 am]      Rule?
                                                                                           Does New Hampshire’s General Conformity
such rule or action. This action may not      BILLING CODE 6560–50–P
                                                                                             Rule differ from the Federal General
be challenged later in proceedings to                                                        Conformity rule?
enforce its requirements. (See section                                                     How does General Conformity affect air
307(b)(2)).                                   ENVIRONMENTAL PROTECTION                       quality in New Hampshire?
                                              AGENCY                                       Where can I get copies of the New Hampshire
List of Subjects in 40 CFR Part 52                                                           General Conformity Rule?
  Environmental protection, Air               40 CFR Part 52                               What is the process for EPA’s approval of
pollution control, Incorporation by           [NH039–7166a; A–1–FRL–6416–2]                  these SIP revisions?
reference, Intergovernmental relations,                                                    What Action Is EPA Taking Today?
Reporting and recordkeeping                   Approval and Promulgation of Air
requirements, Sulfur dioxide.                 Quality Implementation Plans; New               EPA is approving New Hampshire’s
                                              Hampshire; General Conformity                General Conformity Rule, incorporating
  Dated: July 22, 1999.                                                                    it into the State Implementation Plan
Jerri-Anne Garl,                              AGENCY: Environmental Protection             (SIP). This action makes New
Acting Regional Administrator, Region 5.      Agency (EPA).                                Hampshire’s General Conformity Rule
  Title 40 of the Code of Federal             ACTION: Direct final rule.                   federally enforceable.
Regulations, chapter I, part 52, is           SUMMARY:   EPA is approving New              What is General Conformity?
amended as follows:                           Hampshire’s General Conformity Rule,           General Conformity is a safeguard that
                                              incorporating it into the State              no action by the Federal government
PART 52—APPROVAL AND
                                              Implementation Plan (SIP).                   interferes with a SIP’s protection of the
PROMULGATION OF
IMPLEMENTATION PLANS                          DATES: This direct final rule takes effect   National Ambient Air Quality Standards
                                              on October 15, 1999 without further          (NAAQS). Under General Conformity,
  1. The authority citation for part 52       notice, unless EPA receives adverse or       any action by the Federal government
continues to read as follows:                 critical comments by September 15,           cannot:
44418          Federal Register / Vol. 64, No. 157 / Monday, August 16, 1999 / Rules and Regulations

  • Cause or contribute to any new            and thereby establishes General             Does New Hampshire’s General
violation of any standard in any area;        Conformity criteria and procedures in       Conformity Rule Differ From the
  • Interfere with provisions in the          the New Hampshire SIP.                      Federal General Conformity Rule?
applicable SIP for maintenance of any                                                       New Hampshire has incorporated the
                                              Why Did New Hampshire Have to
standard;                                                                                 Federal General Conformity rule by
  • Increase the frequency or severity of     Develop Its Own General Conformity
                                              Rule?                                       reference, so New Hampshire’s rule is
any existing violation of any standard in                                                 no more stringent that the Federal rule
any area; or                                    The CAA requires each State to            and does not impose any additional
  • Delay timely attainment of any            develop rules to implement the General      controls on non-federal entities.
standard of any required interim              Conformity rule. (See 40 CFR 51.851
emission reductions or other milestones       and 93.151.) EPA believes that the          How Does General Conformity Affect
in any area.                                  Federal government does not have the        Air Quality in New Hampshire?
  General Conformity is a requirement         primary responsibility for achieving           If New Hampshire did not take steps
of section 176(c) of the Clean Air Act        clean air goals; Congress assigned that     to avoid pollution, air quality in New
Amendments of 1990 (CAA).                     responsibility to State and local           Hampshire would be degraded. The
                                              agencies. Therefore, each State must        principle behind General Conformity is
Where Does General Conformity
                                              submit a revised SIP that includes          that the agency that sponsors or
Apply?
                                              General Conformity criteria and             supports an activity is in the best
  General Conformity applies in all           procedures that are consistent with the     position to limit the adverse air quality
nonattainment areas and maintenance           General Conformity rule. These criteria     impacts of that activity. General
areas for all the criteria pollutants under   require that State Rules must be at least   Conformity is designed to hold those
the CAA: carbon monoxide (CO), lead           as stringent as the requirements            with the responsibility for a project
(Pb), nitrogen dioxide (NO2), ozone (O3),     specified in EPA’s General Conformity       accountable for the emissions that result
particulate matter (PM), and sulfur           rule. Furthermore, that they can only be    from that project. The ultimate goal is to
dioxide (SO2). It applies to Federal          more stringent if they apply equally to     prevent actions that the Federal
actions which produce reasonably              Federal and non-federal entities.           government supports from undermining
foreseeable direct and indirect                                                           State efforts to achieve and maintain
emissions of criteria pollutants or their     Why Must New Hampshire’s Rule Be
                                              Federally Enforceable?                      clean air in a cost-effective manner.
precursors.
                                                New Hampshire’s General Conformity        Where Can I Get Copies of the New
Who Must Follow General Conformity?                                                       Hampshire General Conformity Rule?
                                              SIP revision enables the State of New
  All Federal government agencies must        Hampshire to implement and enforce            As stated in the ADDRESSES section
follow General Conformity rules. The          the Federal General Conformity rules in     above, you may review copies of the
General Conformity rule establishes           New Hampshire’s nonattainment and           New Hampshire General Conformity
thresholds for triggering a conformity        maintenance areas at the State and local    Rule by appointment during normal
analysis. These rules and the                 level. By approving New Hampshire’s         business hours at the Office Ecosystem
requirements for a conformity analysis        Rule into the SIP, EPA also gains the       Protection, EPA Region 1, One Congress
appear in detail in 40 CFR 51.851 and         authority to enforce the Federal General    Street, Boston, Massachusetts; the Air
93.151.                                       Conformity rules and New Hampshire’s        and Radiation Docket and Information
How Does General Conformity Differ            General Conformity Rule at the Federal      Center, USEPA, 401 M Street, S.W.,
From Transportation Conformity?               level.                                      (LE–131), Washington, DC; and the Air
                                                                                          Resources Division, Department of
   Transportation Conformity applies to       How Does New Hampshire’s General
                                                                                          Environmental Services, 64 North Main
transportation plans, programs, and           Conformity Rule Meet the                    Street, Concord, New Hampshire. You
projects funded or approved by the            Requirements of a Federally                 may also view a copy of the New
Federal Highway Administration or the         Enforceable General Conformity Rule?        Hampshire General Conformity Rule via
Federal Transit Administration or               Section 110 of the CAA requires each      the Internet at http://www.state.nh.us/
recipients of fund from those agencies.       State to adopt and submit to EPA a plan     des/ard/enva1502.pdf.
General Conformity applies to all other       providing for the implementation,
Federal actions. When both                    maintenance, and enforcement of air         What Is the Process for EPA’s Approval
Transportation Conformity and General         quality standards and control programs.     of These SIP Revisions?
Conformity apply to an action, if a             The New Hampshire Office of                  EPA is publishing this rule without
transportation plan, program, or project      Legislative Services has determined that    prior proposal because we view this as
meets the requirements of the                 this SIP revision will be enforceable       a noncontroversial amendment and
Transportation Conformity rules in 40         under the Laws of New Hampshire, RSA        anticipate no adverse comments.
CFR part 51, subpart T and 40 CFR part        125-C:4 Rulemaking Authority;               However, in the proposed rules section
93, subpart A, it is considered to meet       Subpoena Power. This law states in          of this Federal Register publication,
the requirements of General Conformity.       part, ‘‘The director shall adopt rules,     EPA is also publishing a separate
                                              subject to the written approval of the      document that will serve as the proposal
What Did New Hampshire Submit to                                                          to approve this SIP revision should we
                                              commissioner, under RSA 541–A,
EPA for Approval?                                                                         receive relevant adverse comments. This
                                              relative to:
   New Hampshire submitted its General          (a) The prevention, control,              action will be effective October 15, 1999
Conformity Rule, titled ‘‘Chapter Env-A       abatement, and limitation of air            without further notice unless we receive
1500—Conformity, Part Env-A 1502—             pollution, including, but not limited to,   relevant adverse comments by
Conformity of General Federal Actions,’’      open air source pollution, mobile source    September 15, 1999.
to EPA on July 10, 1996 as a revision to      pollution, and stationary source               If EPA does receive adverse
its SIP. The SIP revision for this rule       pollution, and                              comments, we will withdraw the direct
incorporates by reference appropriate           (b) Primary and secondary ambient air     final rule and publish a notice that the
sections of 40 CFR part 51, subpart W         quality standards.’’                        rule will not take effect. We will then
              Federal Register / Vol. 64, No. 157 / Monday, August 16, 1999 / Rules and Regulations                         44419

respond to all public comments              necessary to pay the direct compliance      local, or tribal governments in the
received in a subsequent final rule         costs incurred by the tribal                aggregate; or to the private sector, of
based on the proposed rule. The EPA         governments. If the mandate is              $100 million or more. Under section
will not institute a second comment         unfunded, EPA must provide to the           205, EPA must select the most cost-
period on the proposed rule. If you are     Office of Management and Budget, in a       effective and least burdensome
interested in commenting on this action,    separately identified section of the        alternative that achieves the objectives
you should do so at this time. If no such   preamble to the rule, a description of      of the rule and is consistent with
comments are received, you should           the extent of EPA’s prior consultation      statutory requirements. Section 203
know that this rule will be effective on    with representatives of affected tribal     requires EPA to establish a plan for
October 15, 1999 and no further action      governments, a summary of the nature        informing and advising any small
will be taken on the proposed rule.         of their concerns, and a statement          governments that may be significantly
                                            supporting the need to issue the            or uniquely impacted by the rule.
Administrative Requirements                 regulation. In addition, representatives       EPA has determined that the approval
A. Executive Orders 12866 and 13045         of Indian tribal governments ‘‘to provide   action promulgated does not include a
                                            meaningful and timely input in the          Federal mandate that may result in
   The Office of Management and Budget      development of regulatory policies on       estimated costs of $100 million or more
(OMB) has exempted this regulatory          matters that significantly or uniquely      to either State, local, or tribal
action from E.O. 12866 review.              affect their communities.’’ Today’s rule    governments in the aggregate, or to the
   The final rule is not subject to         does not significantly or uniquely affect   private sector. This Federal action
Executive Order 13045, entitled             the communities of Indian tribal            approves pre-existing requirements
‘‘Protection of Children from               governments. Accordingly, the               under State or local law, and imposes
Environmental Health Risks and Safety       requirements of section 3(b) of E.O.        no new requirements. Accordingly, no
Risks,’’ because it is not an               13084 do not apply to this rule.            additional costs to State, local, or tribal
‘‘economically significant’’ action under                                               governments, or to the private sector,
Executive Order 12866.                      D. Regulatory Flexibility                   result from this action.
B. Executive Order 12875                       The Regulatory Flexibility Act (RFA)
                                            generally requires an agency to conduct     F. Submission to Congress and the
   Under E.O. 12875, EPA may not issue      a regulatory flexibility analysis of any    Comptroller General
a regulation that is not required by        rule subject to notice and comment            The Congressional Review Act, 5
statute and that creates a mandate upon     rulemaking requirements unless the          U.S.C. 801 et seq., as added by the Small
a State, local, or tribal government,       agency certifies that the rule will not     Business Regulatory Enforcement
unless the Federal government provides      have a significant economic impact on       Fairness Act of 1996, generally provides
the funds necessary to pay the direct       a substantial number of small entities.     that before a rule may take effect, the
compliance costs incurred by those          Small entities include small businesses,    agency promulgating the rule must
governments. If the mandate is              small not-for-profit enterprises, and       submit a rule report, which includes a
unfunded, EPA must provide to the           small governmental jurisdictions. This      copy of the rule, to each House of the
Office of Management and Budget a           final rule will not have a significant      Congress and to the Comptroller General
description of the extent of EPA’s prior    impact on a substantial number of small     of the United States. EPA will submit a
consultation with representatives of        entities because SIP approvals under        report containing this rule and other
affected State, local, and tribal           section 110 and subchapter I, part D of     required information to the U.S. Senate,
governments, the nature of their            the Clean Air Act do not create any new     the U.S. House of Representatives, and
concerns, copies of written                 requirements but simply approve             the Comptroller General of the United
communications from the governments,        requirements that the State is already      States prior to publication of the rule in
and a statement supporting the need to      imposing. Therefore, because the            the Federal Register. This rule is not a
issue the regulation. In addition, E.O.     Federal SIP approval does not create        ‘‘major rule’’ as defined by 5 U.S.C.
12875 requires EPA to develop an            any new requirements, I certify that this   804(2).
effective process permitting elected        action will not have a significant
officials and other representatives of                                                  G. Petitions for Judicial Review
                                            economic impact on a substantial
State, local, and tribal governments ‘‘to   number of small entities. Moreover, due       Under section 307(b)(1) of the Clean
provide meaningful and timely input in      to the nature of the Federal-State          Air Act, petitions for judicial review of
the development of regulatory proposals     relationship under the Clean Air Act,       this action must be filed in the United
containing significant unfunded             preparation of flexibility analysis would   States Court of Appeals for the
mandates.’’ Today’s rule does not create    constitute Federal inquiry into the         appropriate circuit by October 15, 1999.
a mandate on State, local or tribal         economic reasonableness of State            Filing a petition for reconsideration by
governments. The rule does not impose       action. The Clean Air Act forbids EPA       the Administrator of this final rule does
any enforceable duties on these entities.   to base its actions concerning SIPs on      not affect the finality of this rule for the
Accordingly, the requirements of            such grounds. Union Electric Co., v.        purposes of judicial review nor does it
section 1(a) of E.O. 12875 do not apply     U.S. EPA, 427 U.S. 246, 255–66 (1976);      extend the time within which a petition
to this rule.                               42 U.S.C. 7410(a)(2).                       for judicial review may be filed, and
                                                                                        shall not postpone the effectiveness of
C. Executive Order 13084                    E. Unfunded Mandates                        such rule or action. This action may not
   Under E.O. 13084, EPA may not issue         Under sections 202 of the Unfunded       be challenged later in proceedings to
a regulation that is not required by        Mandates Reform Act of 1995                 enforce its requirements. (See section
statute, that significantly affects or      (‘‘Unfunded Mandates Act’’), signed         307(b)(2).) EPA encourages interested
uniquely affects the communities of         into law on March 22, 1995, EPA must        parties to comment in response to the
Indian tribal governments, and that         prepare a budgetary impact statement to     proposed rule rather than petition for
imposes substantial direct compliance       accompany any proposed or final rule        judicial review, unless the objection
costs on those communities, unless the      that includes a Federal mandate that        arises after the comment period allowed
Federal government provides the funds       may result in estimated costs to State,     for in the proposal.
44420            Federal Register / Vol. 64, No. 157 / Monday, August 16, 1999 / Rules and Regulations

List of Subjects in 40 CFR Part 52                 PART 52—[AMENDED]                                   (A) Letter from the New Hampshire
                                                                                                     Department of Environmental Services
  Environmental protection, Air                      1. The authority citation for part 52           dated July 10, 1996 submitting a
pollution control, Carbon monoxide,                continues to read as follows:                     revision to the New Hampshire State
Hydrocarbons, Incorporation by                         Authority: 42 U.S.C. 7401 et seq.             Implementation Plan.
reference, Intergovernmental relations,                                                                (B) Part Env-A 1502 of Chapter Env-
Lead, Nitrogen dioxide, Ozone,                     Subpart EE—New Hampshire                          A 1500 of the New Hampshire Code of
Particulate matter, Reporting and                                                                    Administrative Rules titled ‘‘Conformity
recordkeeping requirements, Sulfur                   2. Section 52.1520 is amended by                of General Federal Actions,’’ adopted in
dioxide.                                           adding paragraph (c)(63) to read as               the State of New Hampshire on April
  Note: Incorporation by reference of the
                                                   follows:                                          25, 1996.
State Implementation Plan for the State of         § 52.1520    Identification of plan.
New Hampshire was approved by the
                                                                                                     For the State of New Hampshire
Director of the Federal Register on July 1,        *       *    *      *       *    *                  3. In § 52.1525, Table 52.1525 is
1982.                                                  (c) * * *                                     amended by adding at the end of the
  Dated: July 28, 1999.                            (63) Revisions to the State                       table a new state citation for Conformity
John P. DeVillars,                                 Implementation Plan Submitted by the              of General Federal Actions to read as
Regional Administrator, Region 1.                  New Hampshire Department of                       follows:
                                                   Environmental Services on July 10,                § 52.1525 EPA-approved              New Hampshire
  Part 52 of chapter I, title 40 of the
                                                   1996.                                             state regulations.s
Code of Federal Regulations is amended
as follows:                                            (i) Incorporation by reference.               *      *        *        *      *

                          TABLE 52.1525—EPA-APPROVED RULES AND REGULATIONS—NEW HAMPSHIRE
                                                          Date         Date ap-
                                  State citation                                            Federal Register
          Title/subject                                adopted by      proved by                                               52.1520      Comments
                                     chapter                                                    citation
                                                         State            EPA


          *                   *                        *                   *                    *                        *                    *

Conformity of General Federal     CH Env-A     April 19,             August 16,      [Insert FR citation from pub-           c(63)         None.
  Actions.                         1500, Part    1996.                 1999.            lished date].
                                   Env-A 1502.



[FR Doc. 99–21002 Filed 8–13–99; 8:45 am]          FOR FURTHER INFORMATION CONTACT:                  is therefore not subject to review by the
BILLING CODE 6560–50–P                             Kathleen Paser, Region 8, Office of Air           Office of Management and Budget. In
                                                   and Radiation, at (303) 312–6526.                 addition, this action does not impose
                                                   SUPPLEMENTARY INFORMATION:                        any enforceable duty, contain any
ENVIRONMENTAL PROTECTION                                                                             unfunded mandate, or impose any
AGENCY                                             Background                                        significant or unique impact on small
                                                      The final regulations that are the             governments as described in the
40 CFR Part 62                                     subject of these corrections documented           Unfunded Mandates Reform Act of 1995
                                                   the approved Clean Air Act section                (Public Law 104–4). This rule also does
[FRL–6421–9]                                       111(d) Plan submitted by the North                not require prior consultation with
                                                   Dakota Department of Health on October            State, local, and tribal government
Approval and Promulgation of State                 6, 1998, to implement and enforce the             officials as specified by Executive Order
Plans for Designated Facilities and                Emissions Guidelines (EG) for Existing            12875 (58 F.R. 58093, October 28, 1993)
Pollutants; North Dakota; Control of               Hospital/Medical/Infectious Waste                 or Executive Order 13084 (63 FR 27655
Emissions From Existing Hospital/                  Incinerators (HMIWI).                             (May 10, 1998), or involve special
Medical/Infectious Waste Incinerators;                On May 13, 1999, EPA published the             consideration of environmental justice
Correction                                         direct final approval of North Dakota’s           related issues as required by Executive
                                                   section 111(d) State Plan for the control         Order 12898 (59 FR 7629, February 16,
AGENCY:  Environmental Protection                                                                    1994). Because this action is not subject
Agency (EPA).                                      of Hospital/Medical/Infectious Waste
                                                   Incinerator emissions. Four                       to notice-and-comment requirements
ACTION: Correcting amendments.                     typographical errors occurred in which            under the Administrative Procedure Act
                                                   the word hazardous was substituted for            or any other statute, it is not subject to
SUMMARY: This action makes                                                                           the regulatory flexibility provisions of
                                                   the word hospital.
typographical corrections to the final                                                               the Regulatory Flexibility Act (5 U.S.C.
regulations (FRL–6340–6), which were               Need for Correction                               601 et seq.). This rule also is not subject
published in the Federal Register of                 As published, the final regulations             to Executive Order 13045 (62 F.R.
Thursday May 13, 1999, (FR Doc. 99–                contain errors which may prove to be              19885, April 23, 1997) because EPA
12001). The regulations related to North           misleading and need to be clarified.              interprets E.O. 13045 as applying only
Dakota’s Hospital/Medical/Infectious                                                                 to those regulatory actions that are
Waste Incinerator (HMIWI) 111(d) state             Administrative Requirements                       based on health or safety risks, such that
plan.                                                Under Executive Order 12866 (58 FR              the analysis required under section 5–
DATES: This correcting amendment is                51735, October 4, 1993), this action is           501 of the Order has the potential to
effective on August 16, 1999.                      not a ‘‘significant regulatory action’’ and       influence the regulation. This rule is not
               Federal Register / Vol. 64, No. 157 / Monday, August 16, 1999 / Rules and Regulations                          44421

subject to E.O. 13045 because it does not    Air Emissions From Hospital/Medical/         Directorate, 500 C Street, SW., Room
establish an environmental standard          Infectious Waste Incinerators                417, Washington, DC 20472, (202) 646–
intended to mitigate health or safety                                                     3619.
                                             § 62.8610   Identification of Plan.
risks. This rule is not subject to the                                                    SUPPLEMENTARY INFORMATION: The NFIP
requirements of the Paperwork                  Section 111(d) Plan for Hospital/          enables property owners to purchase
Reduction Act, 44 U.S.C. 3501 et seq.,       Medical/Infectious Waste Incinerators        flood insurance which is generally not
because it does not include any              and the associated State regulation in       otherwise available. In return,
                                             section 33–15–12–02 of the North             communities agree to adopt and
information collection requirements.
                                             Dakota Administrative Code submitted         administer local floodplain management
This rule is not subject to the
                                             by the State on October 6, 1998.             aimed at protecting lives and new
requirements of the National
Technology Transfer and Advancement          § 62.8611   Identification of Sources.       construction from future flooding.
Act (NTTAA) because it does not                The plan applies to all existing           Section 1315 of the National Flood
include provisions for technical             hospital/medical/infectious waste            Insurance Act of 1968, as amended, 42
standards.                                   incinerators for which construction was      U.S.C. 4022, prohibits flood insurance
                                             commenced on or before June 20, 1996,        coverage as authorized under the
Congressional Review Act                                                                  National Flood Insurance Program, 42
                                             as described in 40 CFR part 60, subpart
                                             Ce.                                          U.S.C. 4001 et seq., unless an
   The Congressional Review Act, 5                                                        appropriate public body adopts
U.S.C. 801 et seq., as added by the Small    § 62.8612   Effective Date.                  adequate floodplain management
Business Regulatory Enforcement                                                           measures with effective enforcement
                                               The effective date for the portion of
Fairness Act of 1996, generally provides                                                  measures. The communities listed in
                                             the plan applicable to existing hospital/
that before a rule may take effect, the      medical/infectious waste incinerators is     this document no longer meet that
agency promulgating the rule must            July 12, 1999.                               statutory requirement for compliance
submit a rule report, which includes a                                                    with program regulations, 44 CFR part
copy of the rule, to each House of the       [FR Doc. 99–21166 Filed 8–13–99; 8:45 am]    59 et seq. Accordingly, the communities
Congress and to the Comptroller General      BILLING CODE 6560–50–P                       will be suspended on the effective date
of the United States. EPA will submit a                                                   in the third column. As of that date,
report containing this rule and other                                                     flood insurance will no longer be
required information to the US Senate,       FEDERAL EMERGENCY                            available in the community. However,
the US House of Representatives, and         MANAGEMENT AGENCY                            some of these communities may adopt
the Comptroller General of the United                                                     and submit the required documentation
                                             44 CFR Part 64                               of legally enforceable floodplain
States prior to publication of the rule in
the Federal Register. A major rule           [Docket No. FEMA–7719]                       management measures after this rule is
cannot take effect until 60 days after it                                                 published but prior to the actual
is published in the Federal Register.        Suspension of Community Eligibility          suspension date. These communities
This action is not a ‘‘major rule’’ as                                                    will not be suspended and will continue
                                             AGENCY:  Federal Emergency
defined by 5 U.S.C. 804(2). This rule                                                     their eligibility for the sale of insurance.
                                             Management Agency, FEMA.
correction will be effective on August                                                    A notice withdrawing the suspension of
                                             ACTION: Final rule.                          the communities will be published in
16, 1999.
                                             SUMMARY:   This rule identifies              the Federal Register.
List of Subjects in 40 CFR Part 62           communities, where the sale of flood            In addition, the Federal Emergency
                                             insurance has been authorized under          Management Agency has identified the
  Environmental protection,                                                               special flood hazard areas in these
Administrative practice and procedure,       the National Flood Insurance Program
                                             (NFIP), that are suspended on the            communities by publishing a Flood
Air pollution control, Intergovernmental                                                  Insurance Rate Map (FIRM). The date of
                                             effective dates listed within this rule
relations, Reporting and recordkeeping                                                    the FIRM if one has been published, is
                                             because of noncompliance with the
requirements.                                                                             indicated in the fourth column of the
                                             floodplain management requirements of
  Authority: 42 U.S.C. 7401–7671q.           the program. If the Federal Emergency        table. No direct Federal financial
                                             Management Agency (FEMA) receives            assistance (except assistance pursuant to
  Dated: August 5, 1999.
                                             documentation that the community has         the Robert T. Stafford Disaster Relief
Jack W. McGraw,                                                                           and Emergency Assistance Act not in
Acting Regional Administrator, Region VIII
                                             adopted the required floodplain
                                             management measures prior to the             connection with a flood) may legally be
                                             effective suspension date given in this      provided for construction or acquisition
  Accordingly, 40 CFR part 62 is
                                             rule, the suspension will be withdrawn       of buildings in the identified special
corrected by making the following
                                             by publication in the Federal Register.      flood hazard area of communities not
correcting amendments:
                                                                                          participating in the NFIP and identified
                                             EFFECTIVE DATES: The effective date of
PART 62—[AMENDED]                                                                         for more than a year, on the Federal
                                             each community’s suspension is the           Emergency Management Agency’s
                                             third date (‘‘Susp.’’) listed in the third   initial flood insurance map of the
  1. The authority citation for part 62      column of the following tables.
continues to read as follows:                                                             community as having flood-prone areas
                                             ADDRESSES: If you wish to determine          (section 202(a) of the Flood Disaster
  Authority: 42 U.S.C. 7401–7671.            whether a particular community was           Protection Act of 1973, 42 U.S.C.
                                             suspended on the suspension date,            4106(a), as amended). This prohibition
Subpart JJ—North Dakota                      contact the appropriate FEMA Regional        against certain types of Federal
                                             Office or the NFIP servicing contractor.     assistance becomes effective for the
  2. Revise the undesignated center          FOR FURTHER INFORMATION CONTACT:             communities listed on the date shown
heading and § 62.8610, 62.8611, and          Robert F. Shea Jr., Division Director,       in the last column. The Associate
62.8612 to subpart JJ to read as follows:    Program Support Division, Mitigation         Director finds that notice and public
44422            Federal Register / Vol. 64, No. 157 / Monday, August 16, 1999 / Rules and Regulations

comment under 5 U.S.C. 553(b) are                    amended, 42 U.S.C. 4022, prohibits                   October 26, 1987, 3 CFR, 1987 Comp.,
impracticable and unnecessary because                flood insurance coverage unless an                   p. 252.
communities listed in this final rule                appropriate public body adopts
                                                                                                          Executive Order 12778, Civil Justice
have been adequately notified.                       adequate floodplain management
                                                                                                          Reform
   Each community receives a 6-month,                measures with effective enforcement
90-day, and 30-day notification                      measures. The communities listed no                    This rule meets the applicable
addressed to the Chief Executive Officer             longer comply with the statutory                     standards of section 2(b)(2) of Executive
that the community will be suspended                 requirements, and after the effective                Order 12778, October 25, 1991, 56 FR
unless the required floodplain                       date, flood insurance will no longer be              55195, 3 CFR, 1991 Comp., p. 309.
management measures are met prior to                 available in the communities unless
                                                     they take remedial action.                           List of Subjects in 44 CFR Part 64
the effective suspension date. Since
these notifications have been made, this             Regulatory Classification                              Flood insurance, Floodplains.
final rule may take effect within less
                                                       This final rule is not a significant                 Accordingly, 44 CFR part 64 is
than 30 days.
                                                     regulatory action under the criteria of              amended as follows:
National Environmental Policy Act                    section 3(f) of Executive Order 12866 of
                                                     September 30, 1993, Regulatory                       PART 64—[AMENDED]
   This rule is categorically excluded               Planning and Review, 58 FR 51735.
from the requirements of 44 CFR Part                                                                        1. The authority citation for part 64
10, Environmental Considerations. No                 Paperwork Reduction Act                              continues to read as follows:
environmental impact assessment has                    This rule does not involve any                       Authority: 42 U.S.C. 4001 et seq.;
been prepared.                                       collection of information for purposes of            Reorganization Plan No. 3 of 1978, 3 CFR,
Regulatory Flexibility Act                           the Paperwork Reduction Act, 44 U.S.C.               1978 Comp., p. 329; E.O. 12127, 44 FR 19367,
                                                     3501 et seq.                                         3 CFR, 1979 Comp., p. 376.
  The Associate Director has
determined that this rule is exempt from             Executive Order 12612, Federalism                    § 64.6   [Amended]
the requirements of the Regulatory                     This rule involves no policies that                  2. The tables published under the
Flexibility Act because the National                 have federalism implications under                   authority of § 64.6 are amended as
Flood Insurance Act of 1968, as                      Executive Order 12612, Federalism,                   follows:

                                                                                                                                                  Date certain
                                                                                                                                                 Federal assist-
                                                     Community                                                       Current effective           ance no longer
                 State/location                                           Effective date of eligibility
                                                        No.                                                             map date                availabile in spe-
                                                                                                                                                cial flood hazard
                                                                                                                                                       areas

                 Region I
Connecticut: Vernon, town of, Tolland Coun-             090131   January 26, 1973, Emerg.; December 4,               August 9, 1999             August 9, 1999.
  ty.                                                              1979, Reg.; August 9, 1999, Susp.
Massachusetts: Bourne, town of, Barnstable              255210   April 30, 1971, Emerg.; June 29, 1973,              ......do ...............       Do.
  County.                                                          Reg.; August 9, 1999, Susp.
                 Region III
Pennsylvania: Upper Merion, township of,                420957   December 17, 1973, Emerg.; November 16,             ......do ...............       Do.
  Montgomery County.                                               1977, Reg.; August 9, 1999, Susp.
                 Region IV
North Carolina: Wilkesboro, town of, Wilkes             370259   April 15, 1974, Emerg.; June 1, 1987, Reg.;         ......do ...............       Do.
  County.                                                          August 9, 1999, Susp.
                 Region X
Washington: Brewster, city of, Okanogan                 530275   February 14, 1975, Emerg.; September 1,             ......do ...............       Do.
  County.                                                          1977, Reg.; August 9, 1999, Susp.
                 Region I
New Hampshire: Concord, city of, Merrimack              330110   July 17, 1974, Emerg.; March 4, 1980, Reg.;         August 23, 1999            August 23,
  County.                                                          August 23, 1999, Susp.                                                         1999.
                 Region II
New Jersey: Absecon, city of, Atlantic Coun-            340001   December 23, 1971, Emerg.; March 5,                 ......do ...............       Do.
  ty.                                                              1976, Reg.; August 23, 1999, Susp.
New York: Buffalo, city of, Erie County .........       360230   January 16, 1974, Emerg.; November 18,              ......do ...............       Do.
                                                                   1981, Reg.; August 23, 1999, Susp.
                 Region III
Pennsylvania:
    Tunkhannock, borough of, Wyoming                    420917   April 18, 1973, Emerg.; December 18, 1979,          ......do ...............       Do.
      County.                                                      Reg.; August 23, 1999 Susp.
    Tunkhannock, township of, Wyoming                   422206   June 9, 1975, Emerg.; July 15, 1988, Reg.;          ......do ...............       Do.
      County.                                                      August 23, 1999, Susp.
                 Region IV
South Carolina:
    Atlantic Beach, town of, Horry County ...           450222   October 28, 1976, Emerg.; May 15, 1978,             ......do ...............       Do.
                                                                   Reg.; August 23, 1999, Susp.
    Aynor, town of, Horry County .................      450105   April 3, 1975, Emerg.; January 26, 1983,            ......do ...............       Do.
                                                                   Reg.; August 23, 1999, Susp.
    Briarcliffe Acres, town of, Horry County            450232   November 25, 1977, Emerg.; June 15, 1979,           ......do ...............       Do.
                                                                   Reg.; August 23, 1999, Susp.
                   Federal Register / Vol. 64, No. 157 / Monday, August 16, 1999 / Rules and Regulations                                                     44423

                                                                                                                                                     Date certain
                                                                                                                                                    Federal assist-
                                                          Community                                                     Current effective           ance no longer
                  State/location                                               Effective date of eligibility
                                                             No.                                                           map date                availabile in spe-
                                                                                                                                                   cial flood hazard
                                                                                                                                                          areas

     Conway, city of, Horry County ................          450106   November 7, 1974, Emerg.; September 28,           ......do ...............       Do.
                                                                        1979, Reg.; August 23, 1999, Susp.
     Horry County, unincorporated areas ......               450104   December 8, 1980, Emerg.; February 15,            ......do ...............       Do.
                                                                        1984, Reg; August 23, 1999, Susp.
     Loris, city of, Horry County .....................      450108   August 6, 1975, Emerg.; September 1,              ......do ...............       Do.
                                                                        1986, Reg.; August 23, 1999, Susp.
     Myrtle Beach, city of, Horry County .......             450109   October 15, 1971, Emerg.; July 5, 1977,           ......do ...............       Do.
                                                                        Reg.; August 23, 1999, Susp.
     North Myrtle Beach, city of, Horry Coun-                450110   August 23, 1974, Emerg.; October 14, 1977,        ......do ...............       Do.
       ty.                                                              Reg.; August 23, 1999, Susp.
     Surfside Beach, town of, Horry County ..                450111   September 10, 1971, Emerg.; December 17,          ......do ...............       Do.
                                                                        1976, Reg.; August 23, 1999, Susp.
     Sumter County, unincorporated areas ...                 450182   September 17, 1979, Emerg.; January 5,            ......do ...............       Do.
                                                                        1989, Reg.; August 23, 1999, Susp.
               Region VI
Arkansas:
    Crawford County, unincorporated areas                    050428   June 29, 1990, Emerg.; August 5, 1991,            ......do ...............       Do.
                                                                        Reg.; August 23, 1999, Susp.
     Crittenden County, unincorporated areas                 050429   May 18, 1983, Emerg.; November 1, 1985,           ......do ...............       Do.
                                                                        Reg.; August 23, 1999, Susp.
     Earle, city of, Crittenden County ............          050054   June 20, 1974, Emerg.; January 3, 1986,           ......do ...............       Do.
                                                                        Reg.; August 23, 1999, Susp.
     Van Buren, city of, Crawford County ......              050053   January 16, 1974, Emerg.; November 16,            ......do ...............       Do.
                                                                        1977, Reg.; August 23, 1999, Susp.
                 Region VI
New Mexico:
   Clovis, city of, Curry County ...................         350010   May 1, 1974, Emerg.; February 4, 1981,            .....do ................       Do.
                                                                       Reg.; August 23, 1999, Susp.
               Region VIII
Colorado:
    Calhan, town of, El Paso County ...........              080192   March 12, 1976, Emerg.; March 18, 1986,           ......do ...............       Do.
                                                                       Reg.; August 23, 1999, Susp.
     El Paso County, unincorporated areas ..                 080059   March 9, 1973, Emerg.; December 18,               ......do ...............       Do.
                                                                       1986, Reg.; August 23, 1999, Susp.
                  Region IX
     California: East Palo Alto, city of, San                060708   March 19, 1984, Emerg.; September 19,             ......do ...............       Do.
       Mateo County.                                                   1984, Reg.; August 23, 1999, Susp.
  Code for reading third column: Emerg.—Emergency; Reg.—Regular; Rein.—Reinstatement; Susp.—Suspension.


(Catalog of Federal Domestic Assistance No.               (LECs) that provide in-region, long                  Service, Inc., (202) 857–3800, 1231 20th
83.100, ‘‘Flood Insurance’’)                              distance services solely on a resale basis           St., N.W., Washington, D.C. 20036.
  Issued: August 6, 1999.                                 to do so through a separate corporate
                                                                                                               Synopsis of Second Order on
Michael J. Armstrong,                                     division rather than a separate legal
                                                                                                               Reconsideration
Associate Director for Mitigation.                        entity.
[FR Doc. 99–21142 Filed 8–13–99; 8:45 am]                 EFFECTIVE DATE: September 15, 1999.
                                                                                                                  1. In this second order on
                                                                                                               reconsideration, we modify our
BILLING CODE 6718–05–P                                    FOR FURTHER INFORMATION CONTACT:                     conclusion in the LEC Classification
                                                          Andrea Kearney, Attorney, Common                     Order, 62 FR 35974 (July 3, 1997) and
                                                          Carrier Bureau, Policy and Program                   allow independent LECs that provide
FEDERAL COMMUNICATIONS                                    Planning Division, (202) 418–1580.                   in-region, long distance services solely
COMMISSION                                                SUPPLEMENTARY INFORMATION: This is a                 on a resale basis to do so through a
                                                          summary of the Commission’s Second                   separate corporate division rather than a
47 CFR Part 64                                            Order On Reconsideration adopted May                 separate legal entity. The record
[CC Docket Nos. 96–149 and 96–61; FCC                     18, 1999, and released June 30, 1999                 indicates that this group includes most
99–103]                                                   (FCC 99–103). The full text of this Order            of the small and mid-sized LECs that
                                                          is available for inspection and copying              currently provide in-region, long
Regulatory Treatment of LEC Provision                     during normal business hours in the                  distance services. We also clarify the
of Interexchange Services                                 FCC Reference Center, 425 12th Street,               meaning of the term ‘‘interexchange’’ to
AGENCY:  Federal Communications                           SW, Washington, D.C. The complete                    avoid any possibility of unnecessary
Commission.                                               text also may be obtained through the                application of the Commission’s
ACTION: Final rule.                                       World Wide Web, at http://                           separate affiliate requirements. In
                                                          www.fcc.gov/Bureaus/Common Carrier/                  addition, we affirm our decision
SUMMARY: This document amends the                         Order/fcc99–103.wp, or may be                        relaxing regulation of the BOCs’ section
Commission’s rules to allow                               purchased from the Commission’s copy                 272 interLATA affiliates, i.e., by
independent local exchange carriers                       contractor, International Transcription              classifying these affiliates as non-
44424         Federal Register / Vol. 64, No. 157 / Monday, August 16, 1999 / Rules and Regulations

dominant for in-region, long distance       term ‘‘small incumbent LECs’’ to refer to    the number of small entities in this
services. We also address several other     any incumbent LECs that arguably             category. We believe it is impossible to
miscellaneous issues raised in the          might be defined by SBA as ‘‘small           estimate the number of entities which
reconsideration petitions. Consistent       business concerns.’’ We include ‘‘small      may enter the local exchange market in
with the LEC Classification Partial Stay    non-incumbent LECs’’ in our analysis,        the near future. Nonetheless, we will
Order, 63 FR 16696 (April 6, 1998) and      even though we believe that we are not       estimate the number of small entities in
the relief we grant in this order on        required to do so.                           a subgroup of the category of ‘‘small
reconsideration, any independent LEC           5. The RFA defines a ‘‘small              non-incumbent LECs.’’ According to our
that was providing long distance            business’’ to be the same as a ‘‘small       most recent data, 119 companies
services on an integrated basis through     business concern’’ under the Small           identify themselves in the category
the use or control of its own facilities    Business Act, 15 U.S.C. 632, unless the      ‘‘Competitive Access Providers (CAPs)
must form a separate affiliate to provide   Commission has developed one or more         and Competitive LECs (CLECs).’’ A
such services within 60 days of the         definitions that are appropriate to its      CLEC is a provider of local exchange
release of this order on reconsideration.   activities. Under the Small Business         services which does not fall within the
Finally, we act on the Leaco Rural          Act, a ‘‘small business concern’’ is one     definition of ‘‘incumbent LEC’’ in
Telephone Cooperative, Inc. (Leaco)         that: (1) Is independently owned and         section 251(h). Although it seems
Petition for Waiver of the LEC              operated; (2) is not dominant in its field   certain that some of the carriers in this
Classification Order requirements.          of operation; and (3) meets any              category are CAPs, are not
                                            additional criteria established by the       independently owned and operated, or
V. Supplemental Final Regulatory            SBA. SBA has defined a small business        have more than 1,500 employees, we are
Flexibility Analysis                        for Standard Industrial Classification       unable at this time to estimate with
   2. As required by the Regulatory         (SIC) category 4813 (Telephone               greater precision the number of non-
Flexibility Act (RFA), the Commission       Communications, Except                       incumbent LECs that would qualify as
issued a Final Regulatory Flexibility       Radiotelephone) to be a small entity         small business concerns under SBA’s
Analysis (FRFA) in the LEC                  when it has fewer than 1,500                 definition.
Classification Order, in which it           employees.                                      8. Summary Analysis of the Projected
certified that the rules adopted in that       6. Incumbent LECs. SBA has not            Reporting, Recordkeeping, and Other
order would not have a significant          developed a definition of small              Compliance Requirements. In this order
impact on a substantial number of small     incumbent LECs. The closest applicable       on reconsideration, we conclude that
entities. None of the petitions for         definition under SBA rules is for            independent LECs that are in-region,
reconsideration filed in this proceeding    telephone communications companies           long distance resellers are permitted to
specifically addresses, or seeks            other than radiotelephone (wireless)         provide such services through a separate
reconsideration of, that FRFA. This         companies. The most reliable source of       division rather than a separate legal
present Supplemental FRFA addresses         information regarding the number of          entity, subject to the Fifth Report and
the potential effect on small entities of   LECs nationwide of which we are aware        Order requirements, as modified by the
the rules we adopt in this order. This      appears to be the data that we collect       LEC Classification Order. No party to
Supplemental FRFA incorporates and          annually in connection with the              this proceeding suggests that permitting
adds to our FRFA in the LEC                 Telecommunications Relay Service             independent LECs to provide long
Classification Order.                       (TRS). According to our most recent          distance resale through a separate
   3. Need for and Objectives of this       data, 1,376 companies reported that          division would affect small entities or
Report and Order and the Regulations        they were engaged in the provision of        small incumbent LECs. We determine
Adopted Herein. The need for and            local exchange services. Although it         that compliance with the separate
objectives of the rules adopted in this     seems certain that some of these carriers    division requirement, rather than a
order on reconsideration are the same as    are not independently owned and              separate legal entity requirement, may
those discussed in the LEC                  operated, or have more than 1,500            require small incumbent LECs to use
Classification Order’s FRFA. In general,    employees, we are unable at this time to     accounting, economic, technical, legal,
the regulations adopted in the LEC          estimate with greater precision the          and clerical skills.
Classification Order are intended to        number of LECs that would qualify as            9. Steps Taken To Minimize
promote increased competition in the        small business concerns under SBA’s          Economic Impact on Small Entities and
interexchange market. In this order on      definition. Consequently, we estimate        Small Incumbent LECs, and Alternatives
reconsideration, we clarify the LEC         that there are fewer than 1,376 small        Considered. We believe that the
Classification Order and grant or deny      incumbent LECs that may be affected by       modification of the separate legal entity
petitions filed for reconsideration in      the decisions and regulations adopted in     requirement will facilitate entry of
order to further the same needs and         this order on reconsideration.               independent LECs into the long distance
objectives.                                    7. Non-Incumbent LECs. SBA has not        market. We believe that resale is an
   4. Description and Estimates of the      developed a definition of small non-         essential facilitator of competition in the
Number of Small Entities Affected by        incumbent LECs. For purposes of this         long distance industry because it allows
this Report and Order. In this FRFA, we     order, we define the category of ‘‘small     independent LECs, some of which may
consider the impact of this order on two    non-incumbent LECs’’ to include small        be small entities, and other providers to
categories of entities, ‘‘small incumbent   entities providing local exchange            enter the market immediately, and add
LECs’’ and ‘‘small non-incumbent            services that do not fall within the         their own facilities when it becomes
LECs.’’ Consistent with our prior           statutory definition in section 251(h),      efficient to do so. The modification of
practice, we shall continue to exclude      including potential LECs, LECs which         the separate legal entity requirement for
small incumbent LECs from the               have entered the market since the 1996       independent LEC long distance resellers
definition of a small entity for the        Act was passed, and LECs that were not       seems likely to benefit independent
purpose of this FRFA. Accordingly, our      members of the exchange carrier              LECs, some of which may be small
use of the terms ‘‘small entities’’ and     association pursuant to § 69.601(b) of       entities, by helping to reduce the cost of
‘‘small businesses’’ does not encompass     the Commission’s regulations. We             entry and of providing service. We reject
‘‘small incumbent LECs.’’ We use the        believe it is impracticable to estimate      alternatives to exempt all independent
               Federal Register / Vol. 64, No. 157 / Monday, August 16, 1999 / Rules and Regulations                               44425

LECs, or small and rural independent          Commission amends 47 CFR part 64 as                 (1) Terminate in the independent
LECs, from the separate legal entity          follows:                                         LEC’s local exchange areas; and
requirement, for the reasons stated in                                                            (2) Allow the called party to
Section III of this order on                  PART 64—MISCELLANEOUS RULES                      determine the interexchange carrier,
reconsideration.                              RELATING TO COMMON CARRIERS                      even if the service originates outside the
  10. Report to Congress. The                 MATERIALS                                        independent LEC’s local exchange areas.
Commission shall send a copy of this                                                              Local Exchange Carrier. The term
                                                1. The authority citation for part 64
FRFA, along with this order on                                                                 local exchange carrier means any person
                                              continues to read:
reconsideration, in a report to Congress                                                       that is engaged in the provision of
pursuant to the SBREFA, 5 U.S.C.                Authority: 47 U.S.C. 10, 201, 218, 226, 228,   telephone exchange service or exchange
                                              332, unless otherwise noted.                     access. Such term does not include a
801(a)(1)(A). A copy of this analysis will
also be provided to the Chief Counsel           2. Section 64.1902 is revised to read          person insofar as such person is engaged
for Advocacy of the Small Business            as follows:                                      in the provision of a commercial mobile
Administration, and will be published                                                          service under section 332(c), except to
                                              § 64.1902   Terms and definitions.               the extent that the Commission finds
in the Federal Register.
                                                 Terms used in this part have the              that such service should be included in
VI. Ordering Clauses                          following meanings:                              the definition of that term.
   11. Accordingly, It is Ordered that           Books of Account. Books of account               3. Section 64.1903 is revised to read
pursuant to sections 1, 2, 4, 201, 202,       refer to the financial accounting system         as follows:
220, 251, 271, 272 and 303(r) of the          a company uses to record, in monetary
                                              terms, the basic transactions of a               § 64.1903 Obligations of all incumbent
Communications Act of 1934, as                                                                 independent local exchange carriers.
amended, 47 U.S.C. sections 151, 152,         company. These books of account reflect
                                              the company’s assets, liabilities, and              (a) Except as provided in paragraph
154, 201, 202, 220, 251, 271, 272, and
                                              equity, and the revenues and expenses            (c) of this section, an incumbent
303(r), the ORDER ON
                                              from operations. Each company has its            independent LEC providing in-region,
RECONSIDERATION is hereby
                                              own separate books of account.                   interstate, interexchange services or in-
Adopted, and the requirements
                                                 Incumbent Independent Local                   region international interexchange
contained herein shall be effective 30
                                              Exchange Carrier (Incumbent                      services shall provide such services
days after publication of a summary
                                              Independent LEC). The term incumbent             through an affiliate that satisfies the
thereof in the Federal Register. The
                                              independent local exchange carrier               following requirements:
amendment to the Uniform System of                                                                (1) The affiliate shall maintain
                                              means, with respect to an area, the
Accounts for Telecommunications                                                                separate books of account from its
                                              independent local exchange carrier that:
Companies, part 32 of the Commission’s                                                         affiliated exchange companies. Nothing
                                                 (1) On February 8, 1996, provided
rules, shall be effective six months after                                                     in this section requires the affiliate to
                                              telephone exchange service in such
publication in the Federal Register,                                                           maintain separate books of account that
                                              area; and
although affected parties may elect to           (2) (i) On February 8, 1996, was              comply with Part 32 of this title;
implement these changes upon                  deemed to be a member of the exchange               (2) The affiliate shall not jointly own
adoption.                                     carrier association pursuant to                  transmission or switching facilities with
   12. It is further ordered that part 64,    § 69.601(b) of this title; or                    its affiliated exchange companies.
subpart T of the Commission’s rules, is          (ii) Is a person or entity that, on or        Nothing in this section prohibits an
AMENDED as set forth in the rule              after February 8, 1996, became a                 affiliate from sharing personnel or other
changes hereto.                               successor or assign of a member                  resources or assets with an affiliated
   13. It is further ordered that the         described in paragraph (2)(i) of this            exchange company; and
petitions for reconsideration are granted     section. The Commission may also, by                (3) The affiliate shall acquire any
in part, as described herein, and             rule, treat an independent local                 services from its affiliated exchange
otherwise are denied.                         exchange carrier as an incumbent                 companies for which the affiliated
   14. It is further ordered that the Leaco   independent local exchange carrier               exchange companies are required to file
Rural Telephone Cooperative, Inc.             pursuant to section 251(h)(2) of the             a tariff at tariffed rates, terms, and
Petition for Waiver is rendered moot in       Communications Act of 1934, as                   conditions. Nothing in this section shall
part, as described herein, and the            amended.                                         prohibit the affiliate from acquiring any
remainder is denied.                             Independent Local Exchange Carrier            unbundled network elements or
   15. It is further ordered that the         (Independent LEC). Independent local             exchange services for the provision of a
Commission’s Office of Public Affairs,        exchange carriers are local exchange             telecommunications service from its
Reference Operations Division, shall          carriers, including GTE, other than the          affiliated exchange companies, subject
send a copy of this order on                  BOCs.                                            to the same terms and conditions as
reconsideration, including the Final             Independent Local Exchange Carrier            provided in an agreement approved
Regulatory Flexibility Analysis, to the       Affiliate (Independent LEC Affiliate).           under section 252 of the
Chief Counsel for Advocacy of the Small       An independent local exchange carrier            Communications Act of 1934, as
Business Administration.                      affiliate is a carrier that is owned (in         amended.
List of Subjects in 47 CFR Part 64            whole or in part) or controlled by, or              (b) Except as provided in paragraph
                                              under common ownership (in whole or              (b) (1) of this section, the affiliate
  Communications common carriers.             in part) or control with, an independent         required in paragraph (a) of this section
Federal Communications Commission.            local exchange carrier.                          shall be a separate legal entity from its
LaVera F. Marshall,                              In-Region Service. In-region service          affiliated exchange companies. The
Chief, Agenda Branch.                         means telecommunications service                 affiliate may be staffed by personnel of
                                              originating in an independent local              its affiliated exchange companies,
Rule Changes                                  exchange carrier’s local service areas or        housed in existing offices of its affiliated
  For the reasons discussed in the            800 service, private line service, or their      exchange companies, and use its
preamble, Federal Communications              equivalents that:                                affiliated exchange companies’
44426           Federal Register / Vol. 64, No. 157 / Monday, August 16, 1999 / Rules and Regulations

marketing and other services, subject to      Dangerous Goods (UN                              reasons, § 172.101(b)(1) requires the
paragraph (a)(3) of this section.             Recommendations) necessitated                    authorization of the Associate Administrator
   (1) For an incumbent independent           amendments to domestic regulations to            for Hazardous Materials Safety to change the
                                                                                               PSN and hazard class.
LEC that provides in-region, interstate       provide consistency with international
domestic interexchange services or in-        transport requirements and to facilitate            RSPA disagrees with the need to
region international interexchange            the transport of hazardous materials in          distinguish between materials that are
services using no interexchange               international commerce. This final rule          classed on the basis of human
switching or transmission facilities or       makes certain corrections to the March           experience and those that have been
capability of the LEC’s own (i.e.,            5 final rule and responds to two                 assigned a particular classification or
‘‘independent LEC reseller,’’) the            petitions for reconsideration.                   packing group. First, any material
affiliate required in paragraph (a) of this   DATES: Effective Date: October 1, 1999.          preceded by a plus sign can be classed
section may be a separate corporate              Delayed Compliance Date: October 1,           differently and assigned a different
division of such incumbent                    2000.                                            proper shipping name when in a
independent LEC. All other provisions                                                          solution or mixture which justifies that
                                              FOR FURTHER INFORMATION CONTACT: Bob
of this Subpart applicable to an                                                               different classification. Second, any
                                              Richard, Assistant International
independent LEC affiliate shall continue                                                       material preceded by a plus sign can be
                                              Standards Coordinator, telephone (202)
to apply, as applicable, to such separate                                                      authorized by the Associate
                                              366–0656 or Joan McIntyre, Office of
corporate division.                                                                            Administrator to be reclassed and
                                              Hazardous Materials Standards,
   (2) [Reserved]                                                                              assigned a different proper shipping
                                              telephone (202) 366–8553, Research and
   (c) An incumbent independent LEC                                                            name. Therefore, there is no apparent
                                              Special Programs Administration, US
that is providing in-region, interstate,                                                       benefit for distinguishing between those
                                              Department of Transportation, 400
domestic interexchange services or in-                                                         ‘‘plus-marked’’ materials that are
                                              Seventh Street, SW, Washington, D.C.
region international interexchange                                                             classed on the basis of human
                                              20590–0001.
services prior to April 18, 1997, but is                                                       experience and those that are classed for
                                              SUPPLEMENTARY INFORMATION:
not providing such services through an                                                         other reasons, and the petition for
affiliate that satisfies paragraph (a) of     I. Introduction                                  reconsideration is denied.
this section as of April 18, 1997, shall         On March 5, 1999, RSPA published a            The Hazardous Materials Table (HMT).
comply with the requirements of this          final rule under Docket HM–215C (64
section no later than August 30, 1999.                                                            For the entries ‘‘Aviation regulated
                                              FR 10742) to maintain alignment with             liquid, n.o.s.’’ and ‘‘Aviation regulated
[FR Doc. 99–20887 Filed 8–13–99; 8:45 am]     recent changes to corresponding                  solid, n.o.s.,’’ the ‘‘A’’ was mistakenly
BILLING CODE 6712–01–P                        provisions in international standards.           omitted in the NPRM and the final rule
                                              This final rule corrects various errors          and is reinstated in this document.
                                              and denies two petitions for                        The entries ‘‘Compounds, tree killing,
DEPARTMENT OF TRANSPORTATION                  reconsideration to the March 5, 1999             liquid or Compounds, weed killing,
                                              final rule. A document correcting                liquid,’’ NA1760 and NA1993 were
Research and Special Programs                 printing errors appears elsewhere in             amended by adding a ‘‘G’’ in Column (1)
Administration                                today’s edition of the Federal Register.         of the HMT to identify the entries as
                                              II. Section-by-Section Review                    requiring a technical name in
49 CFR Parts 172 and 173                                                                       parentheses and in association with the
[Docket No. RSPA–98–4185 (HM–215C)]           Section 172.101                                  basic description. However, the entry
                                                The Hazardous Materials Advisory               ‘‘Compounds, tree killing, liquid or
RIN 2137–AD15
                                              Council (HMAC) petitioned RSPA to                Compounds, weed killing, liquid,’’
Harmonization with the United Nations         replace the plus sign (‘‘+’’) with a             NA2810 was mistakenly omitted in the
Recommendations, International                different symbol for materials classified        NPRM and the final rule. RSPA is
Maritime Dangerous Goods Code, and            on the basis of human experience. (The           reinserting that entry and adding the
International Civil Aviation                  plus sign fixes the proper shipping              letter ‘‘G’’ in this final rule.
Organization’s Technical Instructions         name, hazard class and packing group                The entries ‘‘Hydrocarbon gas
                                              for a hazardous material entry in the            mixture, compressed, n.o.s.’’ and
AGENCY:  Research and Special Programs        Hazardous Materials Table, regardless of         ‘‘Hydrocarbon gas mixture, liquefied,
Administration (RSPA), DOT.                   the actual hazard characteristics of the         n.o.s.’’ are corrected by removing the
ACTION: Final rule; corrections and           material.)                                       letter ‘‘G’’ from Column (1). These two
response to two petitions for                   HMAC stated:                                   entries were listed correctly in the
reconsideration.                                To distinguish between materials that are
                                                                                               NPRM (63 FR 44312), as not requiring
                                              classified on the basis of human experience      a technical name; however, in the final
SUMMARY: On March 5, 1999, RSPA                                                                rule the letter ‘‘G’’ was mistakenly
                                              and those that have been assigned a
published a final rule under Docket           particular classification and/or packing group   added.
HM–215C that amended the Hazardous            for other reasons, HMAC believes a different
Materials Regulations to maintain             symbol, perhaps the pound (#) sign, would be
                                                                                               Section 172.101 Appendix B to
alignment with corresponding                  better suited for this purpose. There are        § 172.101—List of Marine Pollutants
provisions of international standards.        important differences in the ability of a          For the entry ‘‘normal-heptaldehyde,’’
Changes to the International Maritime         shipper to reclassify dilute mixtures or         RSPA proposed to remove the severe
Dangerous Goods Code (IMDG Code),             solutions of these substances. For example,      marine pollutant designation (‘‘PP’’).
the International Civil Aviation              as pointed out in the preamble, a mixture or     Due to a typographical error, this entry
                                              solution containing Epichlorohydrin, a
Organization’s Technical Instructions         material classified by human experience,
                                                                                               was misspelled and printed twice, one
for the Safe Transport of Dangerous           could have a different PSN if the appropriate    with the ‘‘PP’’ designation and one
Goods by Air (ICAO Technical                  tests indicate it does not meet the              without. This final rule removes the
Instructions), and the United Nations         corresponding hazard class. However, for         entries and replaces them with ‘‘n-
Recommendations on the Transport of           materials assigned the ‘‘+’’ symbol for other    Heptaldehyde.’’
               Federal Register / Vol. 64, No. 157 / Monday, August 16, 1999 / Rules and Regulations                           44427

Section 172.203                                COSTHA’s request is beyond the scope          Thus, RSPA lacks discretion in this
   RSPA is removing paragraphs (k)(1)          of this rulemaking and will be                area, and preparation of a federalism
and (m)(2), which require n.o.s.               considered in a separate rulemaking.          assessment is not warranted.
descriptions to be supplemented with           III. Rulemaking Analyses and Notices          C. Executive Order 13084
the technical name. The final rule
adopted the letter ‘‘G’’ in Column (1) of      A. Executive Order 12866 and DOT                This final rule has been analyzed in
the HMT to identify generic and n.o.s.         Regulatory Policies and Procedures            accordance with the principles and
entries that must be supplemented with           This final rule is not considered a         criteria contained in Executive Order
a technical name. Therefore, these             significant regulatory action under           13084 (‘‘Consultation and Coordination
paragraphs are no longer necessary. In         section 3(f) of Executive Order 12866         with Indian Tribal Governments’’).
addition, RSPA is adding a sentence to         and, therefore, was not reviewed by the       Because this final rule does not
paragraph (k) introductory text to alert       Office of Management and Budget. The          significantly or uniquely affect the
readers about the letter ‘‘G’’ designator      rule is not considered a significant rule     Indian tribal communities, the funding
in Column (1) of the HMT. With the             under the Regulatory Policies and             and consultation requirements of the
removal of paragraph (k)(1), paragraphs        Procedures of the Department of               Executive Order do not apply.
(k)(2) and (k)(3) are redesignated as          Transportation (44 FR 11034).
paragraphs (k)(1) and (k)(2),                                                                D. Regulatory Flexibility Act
respectively. With the removal of              B. Executive Order 12612
                                                                                                This final rule corrects certain
paragraph (m)(2), paragraph (m)(3) is             This final rule has been analyzed in       provisions incorporated into the
redesignated as paragraph (m)(2).              accordance with the principles and            Hazardous Materials Regulations based
Section 172.504                                criteria contained in Executive Order         on changes introduced in the tenth
                                               12612 (‘‘Federalism’’). Federal               revised edition of the UN
  Although the wording in the                  hazardous materials transportation law,
regulatory text is correct in the March 5,                                                   Recommendations, the 1997–98 ICAO
                                               49 U.S.C. 5701–5127, contains an              Technical Instructions, and Amendment
1999 final rule, RSPA notes that the           express preemption provision (49 U.S.C.
preamble discussion mistakenly                                                               29 to the IMDG Code (Docket HM–215C,
                                               5125(b)) that preempts State, local, and      64 FR 10742). (The ICAO Technical
included the words ‘‘or adjacent to the        Indian tribe requirements on certain
POISON label.’’                                                                              Instructions and the IMDG Code were
                                               covered subjects. Covered subjects are:       updated in a final rule, published
Section 173.28                                    (i) The designation, description, and      October 29, 1998 (Docket HM–215C; 63
                                               classification of hazardous material;         FR 44312).) This final rule applies to
  Certain existing text, which was                (ii) The packing, repacking, handling,
omitted in the final rule and resulted in                                                    offerors and carriers of hazardous
                                               labeling, marking, and placarding of          materials and will facilitate the
the unintentional removal of an                hazardous material;
exception, is reinstated in this final rule.                                                 transportation of hazardous materials in
                                                  (iii) The preparation, execution, and      international commerce by providing
The exception provides that replacing a        use of shipping documents related to
removable gasket or closure device on a                                                      consistency with international
                                               hazardous material and requirements           requirements. The costs associated with
UN 1H1 plastic drum with one of the            related to the number, contents, and
same design and material providing                                                           this final rule are considered to be so
                                               placement of those documents;                 minimal as to not warrant preparation of
equivalent performance does not                   (iv) The written notification,
constitute reconditioning.                                                                   a regulatory impact analysis or
                                               recording, and reporting of the               regulatory evaluation. Therefore, I
Section 173.32c                                unintentional release in transportation       certify that this final rule will not have
  Due to a typographical error in              of hazardous material; or                     a significant economic impact on a
paragraph (j), the word ‘‘not’’ was               (v) The design, manufacturing,             substantial number of small entities.
inadvertently omitted from the first           fabricating, marking, maintenance,
sentence concerning the filling                reconditioning, repairing, or testing of a    E. Paperwork Reduction Act
restriction and is added in this               packaging or container represented,
                                               marked, certified, or sold as qualified         The requirements for information
document. The intent of this prohibition                                                     collection have been approved by the
was clearly indicated in the preamble of       for use in transporting hazardous
                                               material.                                     Office of Management and Budget
the final rule.                                                                              (OMB) under OMB control numbers
                                                  This final rule addresses covered
Section 173.222                                subjects under items i, ii, iii and v above   2137–0034 for shipping papers and
                                               and, adopted as final, would preempt          2137–0557 for approvals. Under the
  In introductory paragraph (c) and
                                               State, local, or Indian tribe requirements    Paperwork Reduction Act of 1995, no
paragraph (c)(4), an incorrect limitation
                                               not meeting the ‘‘substantively the           person is required to respond to a
of this requirement to transportation by
                                               same’’ standard. Federal hazardous            collection of information unless it
aircraft is removed. The requirement
                                               materials transportation law provides at      displays a valid OMB control number.
applies to all modes of transportation.
                                               § 5125(b)(2) that if DOT issues a             F. Regulation Identifier Number (RIN)
Section 178.603                                regulation concerning any of the
  RSPA received a petition for                 covered subjects DOT must determine              A regulation identifier number (RIN)
reconsideration from the Conference on         and publish in the Federal Register the       is assigned to each regulatory action
Safe Transportation of Hazardous               effective date of Federal preemption.         listed in the Unified Agenda of Federal
Articles, Inc. (COSTHA) requesting an          The effective date may not be earlier         Regulations. The Regulatory Information
amendment to § 178.603(f)(5)                   than the 90th day following the date of       Service Center publishes the Unified
concerning the drop test criteria.             issuance of the final rule and not later      Agenda in April and October of each
COSTHA expressed concern that the              than two years after the date of issuance.    year. The RIN number contained in the
requirements for combination                   RSPA has determined that the effective        heading of this document can be used
packagings are more stringent than             date of Federal preemption for these          to cross-reference this action with the
those for drums, jerricans and bags.           requirements is February 14, 2000.            Unified Agenda.
44428          Federal Register / Vol. 64, No. 157 / Monday, August 16, 1999 / Rules and Regulations

G. Unfunded Mandates Reform Act                  APPENDIX B TO § 172.101—LIST OF                         (iii) * * * (For a UN 1H1 plastic
                                                       MARINE POLLUTANTS                               drum, replacing a removable gasket or
   This final rule does not impose                                                                     closure device with another of the same
unfunded mandates under the                            S.M.P.                       Marine pollutant   design and material that provides
Unfunded Mandates Reform Act of                          (1)                              (2)          equivalent performance does not
1995. It does not result in costs of $100                                                              constitute reconditioning); and
million or more to either State, local or    [REMOVE:]
                                               PP ..........................   normal-Heptyl           *      *    *    *     *
tribal governments, in the aggregate, or
to the private sector, and is the least                                          aldehyde.             § 173.28    [Amended]
burdensome alternative that achieves                                           normal-heptaldehyde.
                                             [ADD:]                                                       8. In addition, in § 173.28, in
the objective of the rule.                                                                             paragraph (c)(2) introductory text, as
List of Subjects                                            *         *         *       *      *       revised at 64 FR 10776 effective October
                                                                               n-Heptaldehyde.         1, 1999, the wording ‘‘or a UN 1H1
49 CFR Part 172                                                                                        plastic drum’’ is added immediately
                                                            *         *         *         *      *     following the words ‘‘other than a metal
   Education, Hazardous materials
transportation, Hazardous waste,                                                                       drum’.
                                               4. In § 172.203, in paragraph (k)
Labeling, Markings, Packaging and            introductory text, a new sentence is                      § 173.32c   [Amended]
containers, Reporting and recordkeeping      added at the end to read as follows:                         9. In § 173.32c, in paragraph (j), as
requirements.                                                                                          revised at 64 FR 10777 effective October
                                             § 172.203 Additional description
49 CFR Part 173                              requirements.                                             1, 1999, in the first sentence, the
                                                                                                       wording ‘‘may be loaded to’’ is removed
  Hazardous materials transportation,        *     *      *      *   *                                 and the words ‘‘may not be loaded to’’
Packaging and containers, Radioactive          (k) * * * Shipping descriptions for                     are added in its place.
materials, Reporting and recordkeeping       toxic materials that meet the criteria of
requirements, Uranium.                       Division 6.1, PG I or II (as specified in                 § 173.222   [Amended]
                                             § 173.132(a) of this subchapter) or                          10. In § 173.222, as revised at 64 FR
  In consideration of the foregoing, 49      Division 2.3 (as specified in § 173.115(c)                10779 effective October 1, 1999, the
CFR Chapter I is amended as follows:         of this subchapter) and are identified by                 following changes are made:
                                             the letter ‘‘G’’ in Column (1) of the                        a. In paragraph (c) introductory text,
PART 172—HAZARDOUS MATERIALS
                                             § 172.101 Table, must have the technical                  the wording ‘‘For transportation by
TABLE, SPECIAL PROVISIONS,
                                             name of the toxic constituent entered in                  aircraft, the’’ is removed and ‘‘The’’ is
HAZARDOUS MATERIALS
                                             parentheses in association with the                       added in its place.
COMMUNICATIONS, EMERGENCY
                                             basic description.                                           b. In paragraph (c)(4), the wording
RESPONSE INFORMATION, AND
TRAINING REQUIREMENTS                        *     *      *      *   *                                 ‘‘and is offered for transportation by
                                                                                                       aircraft’’ is removed.
                                             § 172.203       [Amended]
  1. The authority citation for part 172                                                                 Issued in Washington, DC, on August 9,
continues to read as follows:                  5. In addition, in § 172.203 as                         1999, under authority delegated in 49 CFR
                                             amended at 64 FR 10775 effective                          part 1.
  Authority: 49 U.S.C. 5101–5127; 49 CFR     October 1, 1999, the following changes
1.53.                                                                                                  Kelley S. Coyner,
                                             are made:
                                                                                                       Administrator.
§ 172.101   [Amended]                          a. Paragraph (k)(1) is removed.
                                                                                                       [FR Doc. 99–21074 Filed 8–13–99; 8:45 am]
                                               b. Paragraphs (k)(2) and (k)(3) are
   2. In the § 172.101 Hazardous             redesignated as paragraphs (k)(1) and                     BILLING CODE 4910–60–P
Materials Table, in Column (1), as           (k)(2), respectively.
amended at 64 FR 10753 effective               c. Paragraph (m)(2) is removed.
October 1, 1999, the following changes         d. Paragraph (m)(3) is redesignated as                  DEPARTMENT OF COMMERCE
are made:                                    paragraph (m)(2).
   a. In Column (1), for the entries                                                                   National Oceanic and Atmospheric
‘‘Aviation regulated liquid, n.o.s.’’ and    PART 173—SHIPPERS—GENERAL                                 Administration
‘‘Aviation regulated solid, n.o.s.’’, the    REQUIREMENTS FOR SHIPMENTS
letter ‘‘A’’ is added in alphabetical        AND PACKAGINGS                                            50 CFR Part 300
order.                                                                                                 [Docket No. 990212047–9208–02; I.D.
                                               6. The authority citation for part 173
   b. In Column (1), for the entry,                                                                    111998C]
                                             continues to read as follows:
‘‘Compounds, tree killing, liquid or                                                                   RIN 0648–AL28
                                               Authority: 49 U.S.C. 5101–5127, 44701; 49
Compounds, weed killing, liquid’’            CFR 1.45, 1.53.
(NA2810), the letter ‘‘G’’ is added in                                                                 International Fisheries Regulations;
alphabetical order.                             7. In § 173.28, in paragraph (c)(2)(iii),              Pacific Tuna Fisheries
   c. For the entries ‘‘Hydrocarbon gas      as revised at 64 FR 10776 effective
                                             October 1, 1999, ‘‘; and’’ is removed at                  AGENCY:  National Marine Fisheries
mixture, compressed, n.o.s.’’ and                                                                      Service (NMFS), National Oceanic and
‘‘Hydrocarbon gas mixture, liquefied,        the end of the sentence and a period is
                                             added in their place and a new sentence                   Atmospheric Administration (NOAA),
n.o.s.’’, the letter ‘‘G’’ is removed each                                                             Commerce.
place it appears.                            is added to read as follows:
                                                                                                       ACTION: Final rule; implementation of
   3. In Appendix B to § 172.101, the List   § 173.28 Reuse, reconditioning and
                                                                                                       Inter-American Tropical Tuna
of Marine Pollutants is amended by           remanufacture of packagings.
                                                                                                       Commission (IATTC) recommendations.
removing two entries and adding one          *       *    *            *       *
entry in alphabetical order to read as           (c) * * *                                             SUMMARY: NMFS issues final regulations
follows:                                         (2) * * *                                             to implement recommendations of the
              Federal Register / Vol. 64, No. 157 / Monday, August 16, 1999 / Rules and Regulations                        44429

IATTC to conserve and manage the tuna        comments cannot be addressed by                Comment 4: The prohibition on
fisheries of the Eastern Tropical Pacific    Federal regulations, the comments are       fishing on floating objects as a way of
Ocean (ETP). This rule provides for an       summarized below with NMFS                  reducing the harvest of small fish is too
annual announcement of tuna harvest          responses.                                  simplistic. It implies that the only goal
quotas, closure of the U.S. fishery in the      Comment 1: The U.S. Government           is the maximum productivity of tuna
IATTC’s Convention Area or in the            should insist on the formation of a         without recognizing the impact on other
Yellowfin Regulatory Area (CYRA)             compliance committee in the IATTC to        species. It also discriminates against
when quotas have been reached, and           ensure that all member countries abide      nations that depend on this fishing
implementation of other measures             by IATTC recommendations.                   strategy as a way to reduce the take of
recommended by the IATTC to ensure              Response: The United States has          dolphins.
conservation and management of fishery       supported establishing such a                  Response: This rule does not prohibit
resources. The rule also prohibits U.S.      committee under the auspices of the         fishing on floating objects (natural or
citizens from utilizing vessels that         IATTC and has proposed terms of             man-made); rather, it authorizes the
service fish-aggregating devices (FADs)      reference for a compliance committee.       Regional Administrator to prohibit
and prohibits the transshipment at sea       At its annual meeting in June 1999, the     fishing on floating objects in the future.
by U.S. purse seine vessels of purse         IATTC agreed to establish a Compliance      The 1998 quota on bigeye would have
seine-caught tuna. This final rule is        Committee based on the U.S. terms of        been implemented by prohibiting sets
intended to ensure that U.S. fisheries       reference.                                  on floating objects if and when the
are conducted according to the IATTC’s          Comment 2: Fishermen should be           quota was reached. The bigeye quota is
recommendations, as approved by the          prohibited from fishing all gear types,     enforced this way because floating
Department of State.                         not only purse seines, when such a          objects sets are responsible for virtually
DATES: Effective September 13, 1999.         prohibition is necessary to reduce the      all the catch of small bigeye tuna. In
                                             harvest of small fish.                      fact, some nations may have been
FOR FURTHER INFORMATION CONTACT:
                                                Response: This rule does not impose      reluctant to set the 1999 quota in part
Svein Fougner or James Morgan,                                                           because they did not want their vessels
Sustainable Fisheries Division,              an immediate prohibition of sets on
                                                                                         to be restricted from using a strategy on
Southwest Region, NMFS, 562–980–             floating objects. Although the IATTC
                                                                                         which they had become dependent. The
4030.                                        resolution of October 1998 specifically
                                                                                         U.S. supported the 1998 quota
SUPPLEMENTARY INFORMATION: The               recommended prohibiting purse seines
                                                                                         reluctantly because U.S. vessels are
United States is a member of the IATTC,      from being set on floating objects after
                                                                                         largely dependent on floating object
which was established under the              the bigeye quota is reached, the
                                                                                         fishing. However, in a meeting in
Convention for the Establishment of an       prohibitions in § 300.28(b) have been
                                                                                         January 1999, NMFS insisted that any
Inter-American Tropical Tuna                 revised to authorize the Southwest
                                                                                         consideration of management measures
Commission signed in 1949. The IATTC         Regional Administrator, NMFS
                                                                                         directed at any single fishing strategy be
was established to provide an                (Regional Administrator) to prohibit any    based on a full analysis of impacts on
international arrangement to ensure          fishing gear, as specified in the           the stocks, on other ecosystem
conservation and management of               notification to fishermen, if such a        components (e.g., dolphin and other
yellowfin and skipjack tuna and other        prohibition is necessary for the            non-fish species), and on the vessels
species taken by tuna fishing vessels in     conservation of fishery resources or        engaged in the fishery. The U.S.
the ETP. The IATTC has maintained a          other species.                              Department of State also actively seeks
scientific research and fishery                 Comment 3: One commenter                 input from U.S. vessel owners to ensure
monitoring program for many years and        expressed concern about the need for a      that U.S. positions consider fully the
annually assesses the status of tuna         quota on bigeye tuna and the quality of     impacts of alternative measures on U.S.
stocks and conditions in the fisheries.      the data used to establish it. Questions    firms.
Each year, the IATTC recommends              were raised about using data obtained          Comment 5: The 15–percent
appropriate harvest levels (quotas) and/     from foreign longline vessels, which        incidental catch for yellowfin tuna that
or other measures to prevent                 may not have observers; the ability of      the IATTC recommended for the closed
overexploitation and promote maximum         observers on any vessel to distinguish      season in 1998 would allow
sustainable yield (MSY). Each member         between small yellowfin and bigeye          uncontrolled mortality in excess of the
country of the IATTC is responsible for      tuna, and the effects of El Nino on the     estimated MSY.
enforcing quotas and other measures          resource.                                      Response: The IATTC resolutions in
with respect to its own fisheries. As           Response: A 45,000–metric ton (mt)       1998 regarding yellowfin tuna included
required by the Tuna Conventions Act         quota on bigeye tuna was recommended        recommendations that apply to fishing
of 1950, the recommendations of the          by the IATTC and adopted by the             vessels after the quota is reached, such
IATTC must be approved by the                member countries in 1998. The               as allowing a vessel to retain a 15–
Secretary of State before                    questions raised by the commenter,          percent incidental harvest by weight of
implementation for U.S. fisheries.           however, are legitimate and have a          yellowfin tuna while fishing for other
   NMFS published a proposed rule on         bearing on future decisions that the        species of tuna. The 15–percent
February 25, 1999 (64 FR 9296), that         IATTC may make. Other nations also          incidental catch allocation for yellowfin
provided background on the 1998              have questioned the quality of the data     tuna will not allow uncontrolled
recommendations that were not                used to assess bigeye stocks and the        mortality in excess of MSY. The IATTC
implemented and other permanent              effects of harvesting small bigeye on       estimates the amount of yellowfin tuna
measures that are implemented by this        floating object sets. The IATTC staff are   that will be caught during a closure and
rule. That background is not repeated        aware of these questions and have           includes those data in its decision about
here.                                        research underway to answer some of         when to close the fishery. The closure
                                             them. U.S. scientists are also obtaining    date is chosen so that the total yellowfin
Comments and Responses                       U.S. vessels’ catch and effort data to      harvest (including incidental catch) will
  Three organizations commented on           determine the extent to which those         not exceed MSY. This final rule
the proposed rule. Although most of the      data confirm the IATTC staff analyses.      authorizes the Regional Administrator
44430            Federal Register / Vol. 64, No. 157 / Monday, August 16, 1999 / Rules and Regulations

to close the U.S. fishery for yellowfin      Reporting and recordkeeping                       20° N. lat., 120° W. long.;
tuna or other species of tuna at such        requirements.                                     5° N. lat., 120° W. long.;
time as the IATTC Director of                                                                  5° N. lat., 110° W. long.;
                                              Dated: August 10, 1999.                          10° S. lat., 110° W. long.;
Investigations advises that the quota        Gary C. Matlock,                                  10° S. lat., 90° W. long.;
will be reached.                                                                               30° S. lat., 90° W. long.; and then eastward
                                             Acting Assistant Administrator for Fisheries,
Bigeye and FAD issues in 1999                National Marine Fisheries Service.              along the 30° S. latitude parallel to the coast
                                               For the reasons set out in the                of South America.
  In 1999, the IATTC recommended                                                                Convention Area means the waters
                                             preamble, 50 CFR part 300 is amended
that action be taken to limit the catch of                                                   within the area bounded by the
                                             as follows:
bigeye tuna to 40,000 mt by prohibiting                                                      mainland of the Americas, lines
purse seine sets on all types of floating    PART 300—INTERNATIONAL                          extending westward from the mainland
objects in the Convention Area when          FISHERIES REGULATIONS                           of the Americas along the 40° N. lat. and
this harvest level is reached. This would                                                    40° S. lat., and 150° W. long.
tend to reduce the harvest of small fish     Subpart C—Pacific Tuna Fisheries                   Fish aggregating device (FAD) means
and increase the catch-per-recruit.                                                          a manmade raft or other floating object
  This final rule establishes a procedure      1. The authority citation for subpart C
                                             continues to read as follows:                   used to attract tuna and make them
for implementing future                                                                      available to fishing vessels.
recommendations of the IATTC. In               Authority: 16 U.S.C. 951-961 and 971 et          Fishing trip means a period of time
addition, this final rule implements the     seq.
                                                                                             between landings when fishing is
following two measures, which were             2. Section 300.20 is revised to read as       conducted.
recommended by the IATTC in 1998             follows:                                        *      *     *     *     *
and approved by the Department of
                                             § 300.20    Purpose and scope.                     Floating object means any natural
State:
                                                The regulations in this subpart              object or FAD around which fishing
  1. The use of tender vessels, which
                                             implement the Tuna Conventions Act of           vessels may catch tuna.
are vessels that do not engage in purse
                                                                                                Incidental catch or incidental species
seining but tend FADS in support of          1950 (Act) and the Atlantic Tunas
                                                                                             means species caught while fishing with
tuna fishing operations, in the              Convention Act of 1975. The regulations
                                                                                             the primary purpose of catching a
Convention Area is prohibited; and           provide a mechanism to carry out the
                                                                                             different species. An incidental catch is
  2. The transshipment of tuna by purse      recommendations of the Inter-American
                                                                                             expressed as a percentage of the weight
seine vessels at sea in the Convention       Tropical Tuna Commission (IATTC) for
                                                                                             of the total fish on board.
Area is prohibited.                          the conservation and management of
                                                                                                Land or Landing means to begin
  NMFS will notify fishermen of any          highly migratory fish resources in the
                                                                                             transfer of fish from a fishing vessel.
future resolutions adopted by the IATTC      Eastern Tropical Pacific Ocean so far as
                                                                                             Once transfer begins, all fish on board
and approved by the Department of            they affect vessels and persons subject
                                                                                             the vessel are counted as part of the
State.                                       to the jurisdiction of the United States.
                                                                                             landing.
                                             They also carry out the
Changes to the Proposed Rule                                                                    Observer means an individual placed
                                             recommendations of the International
  Changes to the proposed rule were                                                          aboard a fishing vessel under the IATTC
                                             Commission for the Conservation of
made to the definition of Regional                                                           observer program or any other
                                             Atlantic Tunas for the conservation of
Administrator to allow a designee to act                                                     international observer program in which
                                             bluefin tuna, so far as they affect vessels
in his or her stead, and to the                                                              the United States may participate.
                                             and persons subject to the jurisdiction
prohibitions section at § 300.28(b) to       of the United States.                           *      *     *     *     *
authorize the Regional Administrator to         3. Section 300.21 is amended by                 Regional Administrator means the
prohibit the use of any fishing gear         removing the definition of ‘‘Regional           Administrator, Southwest Region,
around floating objects, if such a           Director’’ and adding definitions for           NMFS, or his designee.
prohibition is necessary for the             ‘‘Bigeye tuna’’, ‘‘Commission’s                 *      *     *     *     *
conservation of fishery resources or         Yellowfin Regulatory Area (CYRA)’’,                Tender vessel means a vessel that
other species.                               ‘‘Convention Area’’, ‘‘Fish aggregating         does not engage in purse seine fishing
                                             device (FAD)’’, ‘‘Fishing trip’’, ‘‘Floating    but tends to FADs in support of tuna
Classification
                                             object’’, ‘‘Incidental catch or incidental      fishing operations.
   This final rule has been determined to    species’’, ‘‘Land or Landing’’,                    Transship means to unload fish from
be not significant for purposes of E.O.      ‘‘Observer’’, ‘‘Regional Administrator’’,       a vessel that caught fish to another
12866.                                       ‘‘Tender vessel’’, ‘‘Transship’’, and           vessel.
   The Assistant General Counsel for         ‘‘Transshipment receiving vessel’’ in              Transshipment receiving vessel means
Legislation and Regulation of the            alphabetical order to read as follows:          any vessel, boat, ship, or other craft that
Department of Commerce certified to                                                          is used to receive fish from a fishing
the Chief Counsel for Advocacy of the        § 300.21    Definitions.                        vessel.
Small Business Administration when           *     *     *    *     *                           4. In § 300.28, the section heading is
this rule was proposed, that this rule, if     Bigeye tuna means the species                 revised, paragraphs (a) through (c) are
adopted as proposed, would not have a        Thunnus obesus.                                 redesignated as (e) through (g),
significant economic impact on a             *     *     *    *     *                        respectively, and new paragraphs (a)
substantial number of small entities. No       Commission’s Yellowfin Regulatory             through (d) are added to read as follows:
comments were received regarding this        Area (CYRA) means the waters bounded
certification. As a result, a regulatory     by a line extending westward from the           § 300.28   Prohibitions.
flexibility analysis was not prepared.       mainland of North America along the             *     *     *   *      *
                                             40° N. latitude parallel, and connecting          (a) Land any species of tuna during
List of Subjects in 50 CFR Part 300                                                          the closed season for that species in
                                             the following coordinates:
   Fish, Fisheries, Fishing, High seas           40° N. lat., 125° W. long.;                 excess of the amount allowed by the
fishing, International agreements,               20° N. lat., 125° W. long.;                 Regional Administrator.
               Federal Register / Vol. 64, No. 157 / Monday, August 16, 1999 / Rules and Regulations                            44431

   (b) Fish on floating objects in the        projection under paragraph (b)(2) of this   Stevens Fishery Conservation and
Convention Area using any gear type           section, the Regional Administrator will    Management Act. Regulations governing
specified by the Regional                     publish an announcement of the closure      fishing by U.S. vessels in accordance
Administrator’s notification of closure       in the Federal Register.                    with the FMP appear at subpart H of 50
issued under § 300.29.                           (c) Use of tender vessels. No person     CFR part 600 and 50 CFR part 679.
   (c) Use tender vessels in the              subject to these regulations may use a         The 1999 TAC of northern rockfish in
Convention Area.                              tender vessel in the Convention Area.       the Central Regulatory Area of the Gulf
   (d) Transship purse seine-caught tuna         (d) Transshipments at sea. No person     of Alaska was established by the Final
at sea within the Convention Area.            subject to these regulations may            1999 Harvest Specifications of
*      *     *    *     *                     transship purse seine-caught tuna from      Groundfish for the GOA (64 FR 12094,
   5. Section 300.29 is added to Subpart      one vessel to another vessel at sea         March 11, 1999) as 4,150 metric tons
C to read as follows:                         within the Convention Area.                 (mt), determined in accordance with
                                                                                          § 679.20(c)(3)(ii). The directed fishery
§ 300.29 Eastern Pacific fisheries            PART 300—[AMENDED]
management.
                                                                                          for northern rockfish in the Central
                                                 6. In addition to the amendments set     Regulatory Area was closed under
   (a) Notification of IATTC                                                              § 679.20(d)(iii) on July 19, 1999 (64 FR
recommendations. The Regional                 forth under the authority of 16 U.S.C.
                                              773 et seq.; 16 U.S.C. 951–961 and 971      39090, July 21, 1999), and reopened on
Administrator will directly notify                                                        August 6, 1999 (64 FR 43296, August
owners or agents of U.S. tuna vessels of      et seq.; 16 U.S.C. 973–973r; 16 U.S.C.
                                              2431 et seq.; 16 U.S.C. 3371–3378; 16       10, 1999).
any fishery management
                                              U.S.C. 3636(b); 16 U.S.C. 5501 et seq.;        On July 19, 1999 (64 FR 39090, July
recommendations made by the IATTC
                                              and 16 U.S.C. 1801 et seq., in part 300,    21, 1999), in accordance with
and approved by the Department of
                                              revise all references to ‘‘Regional         § 679.20(d)(1)(i), the Administrator,
State that will affect fishing or other
                                              Director’’ to read ‘‘Regional               Alaska Region, NMFS (Regional
activities by U.S. parties with fishery
                                              Administrator’’.                            Administrator), determined that the
interests in the Convention Area. As
                                              [FR Doc. 99–21196 Filed 8–13–99; 8:45 am]   1999 TAC for northern rockfish would
soon as practicable after such
                                                                                          be reached. Therefore, the Regional
notification, the Regional Administrator      BILLING CODE 3510–22–F
                                                                                          Administrator established a directed
will announce approved IATTC
                                                                                          fishing allowance of 3,650 mt, and set
recommendations in the Federal
                                              DEPARTMENT OF COMMERCE                      aside the remaining 500 mt as bycatch
Register.
   (b) Tuna quotas. (1) Fishing seasons                                                   to support other anticipated groundfish
for all tuna species begin on January 1       National Oceanic and Atmospheric            fisheries. In accordance with
and end either on December 31 or when         Administration                              § 679.20(d)(1)(iii), the Regional
NMFS closes the fishery for a specific                                                    Administrator finds that this directed
                                              50 CFR Part 679                             fishing allowance has been reached.
species.
   (2) The Regional Administrator may         [Docket No. 990304062–9062–01; I.D.         Consequently, NMFS is prohibiting
close the U.S. fishery for yellowfin,         080999J]                                    directed fishing for northern rockfish in
bigeye, or skipjack tuna or any other                                                     the Central Regulatory Area of the GOA.
tuna species in the Convention Area or        Fisheries of the Exclusive Economic            Maximum retainable bycatch amounts
portion of the Convention Area when           Zone Off Alaska; Northern Rockfish in       may be found in the regulations at
advised by the Director of Investigations     the Central Regulatory Area of the Gulf     § 679.20(e) and (f).
of the IATTC that the associated quota        of Alaska
                                                                                          Classification
has been or is projected to be reached.       AGENCY:  National Marine Fisheries
Any such closure may include:                                                                This action responds to the best
                                              Service (NMFS), National Oceanic and
   (i) An allowance for an incidental                                                     available information recently obtained
                                              Atmospheric Administration (NOAA),
catch that may be landed while fishing                                                    from the fishery. It must be
                                              Commerce.
for other tuna species;                                                                   implemented immediately to prevent
                                              ACTION: Closure.                            overharvesting the 1999 TAC of
   (ii) A prohibition on the further
setting of specified gear types on            SUMMARY:   NMFS is prohibiting directed     northern rockfish for the Central
floating objects by U.S. vessels in the       fishing for northern rockfish in the        Regulatory Area of the GOA. A delay in
Convention Area;                              Central Regulatory Area of the Gulf of      the effective date is impracticable and
   (iii) Provisions for vessels that are at   Alaska (GOA). This action is necessary      contrary to the public interest. Further
sea during an announced closure to fish       to prevent exceeding the 1999 total         delay would only result in overharvest.
unrestricted until the fishing trip is        allowable catch (TAC) of northern           NMFS finds for good cause that the
completed;                                    rockfish in this area.                      implementation of this action should
   (iv) Provisions for vessels at sea with                                                not be delayed for 30 days. Accordingly,
                                              DATES: Effective 1200 hrs, Alaska local
an observer on board during any closure                                                   under 5 U.S.C. 553(d), a delay in the
                                              time (A.l.t.), August 10, 1999, through     effective date is hereby waived.
to land fish unrestricted if the landing
                                              2400 hrs, A.l.t., December 31, 1999.
occurs after December 31; or                                                                 This action is required by 50 CFR
   (v) Other measures to ensure that the      FOR FURTHER INFORMATION CONTACT:            679.20 and is exempt from review under
conservation and management measures          Mary Furuness, 907–586–7228.                E.O. 12866.
of the IATTC are achieved.                    SUPPLEMENTARY INFORMATION: NMFS
                                                                                            Authority: 16 U.S.C. 1801 et seq.
   (3) The Regional Administrator will        manages the groundfish fishery in the
announce any such closures directly to        GOA exclusive economic zone                   Dated: August 10, 1999.
the owners or agents of U.S. vessels who      according to the Fishery Management         Bruce C. Morehead,
are fishing in or are eligible to fish in     Plan for Groundfish of the Gulf of          Acting Director, Office of Sustainable
the Convention Area.                          Alaska (FMP) prepared by the North          Fisheries, National Marine Fisheries Service.
   (4) As soon as practicable after being     Pacific Fishery Management Council          [FR Doc. 99–21094 Filed 8–10–99; 4:49 pm]
advised of the quota attainment or            under authority of the Magnuson-            BILLING CODE 3510–22–F
44432         Federal Register / Vol. 64, No. 157 / Monday, August 16, 1999 / Rules and Regulations

DEPARTMENT OF COMMERCE                       FOR FURTHER INFORMATION CONTACT:    Tom     be treated as prohibited species in
                                             Pearson, 907–481–1780 or                    accordance with § 679.21(b).
National Oceanic and Atmospheric             tom.pearson@noaa.gov.
Administration                                                                           Classification
                                             SUPPLEMENTARY INFORMATION:       NMFS
50 CFR Part 679                              manages the groundfish fishery in the          This action responds to the best
                                             GOA exclusive economic zone                 available information recently obtained
[Docket No. 990304062–9062–01; I.D.          according to the Fishery Management         from the fishery. It must be
080999I]                                                                                 implemented immediately to prevent
                                             Plan for the Groundfish Fishery of the
Fisheries of the Exclusive Economic          Gulf of Alaska (FMP) prepared by the        overharvesting the allocation of the
Zone Off Alaska; Sablefish by Vessels        North Pacific Fishery Management            sablefish TAC assigned to trawl gear in
Using Trawl Gear in the Central              Council under authority of the              the Central Regulatory Area of the GOA.
Regulatory Area of the Gulf of Alaska        Magnuson-Stevens Fishery                    A delay in the effective date is
                                             Conservation and Management Act.            impracticable and contrary to the public
AGENCY:  National Marine Fisheries           Regulations governing fishing by U.S.       interest. The fleet has taken the
Service (NMFS), National Oceanic and         vessels in accordance with the FMP          allocation of the sablefish TAC assigned
Atmospheric Administration (NOAA),           appear at subpart H of 50 CFR part 600      to trawl gear in the Central Regulatory
Commerce.                                    and 50 CFR part 679.                        Area. Further delay would only result in
ACTION: Closure.                                                                         overharvest. NMFS finds for good cause
                                               In accordance with
                                             § 679.20(a)(4)(ii)(B), the Final 1999       that the implementation of this action
SUMMARY: NMFS is prohibiting retention
                                             Harvest Specifications of Groundfish for    cannot be delayed for 30 days.
of sablefish by vessels using trawl gear                                                 Accordingly, under 5 U.S.C. 553(d), a
in the Central Regulatory Area of the        the GOA (64 FR 12094, March 11, 1999)
                                             established the allocation of the 1999      delay in the effective date is hereby
Gulf of Alaska (GOA). NMFS is                                                            waived.
requiring that catch of sablefish by         sablefish TAC assigned to trawl gear in
vessels using trawl gear in this area be     the Central Regulatory Area of the GOA         This action is required by § 679.20
treated in the same manner as                as 1,118 metric tons (mt).                  and is exempt from review under E.O.
prohibited species and discarded at sea        In accordance with § 679.20(d)(2), the    12866.
with a minimum of injury. This action        Administrator, Alaska Region, NMFS,           Authority: 16 U.S.C. 1801 et seq.
is necessary because the allocation of       has determined that the allocation of the
                                                                                           Dated: August 10, 1999.
the sablefish 1999 total allowable catch     sablefish TAC assigned to trawl gear in
(TAC) assigned to trawl gear in this area    the Central Regulatory Area of the GOA      Bruce C. Morehead,
has been reached.                            has been reached. Therefore, NMFS is        Acting Director, Office of Sustainable
DATES: Effective 1200 hrs, Alaska local      requiring that further catches of           Fisheries, National Marine Fisheries Service.
time (A.l.t.), August 10, 1999, until 2400   sablefish by vessels using trawl gear in    [FR Doc. 99–21093 Filed 8–10–99; 4:49 pm]
hrs, A.l.t., December 31, 1999.              the Central Regulatory Area of the GOA      BILLING CODE 3510–22–F
                                                                                                                                44433

Proposed Rules                                                                                Federal Register
                                                                                              Vol. 64, No. 157

                                                                                              Monday, August 16, 1999



This section of the FEDERAL REGISTER               G. Review Under the Treasury and General   for opinions to be rendered by the
contains notices to the public of the proposed       Government Appropriations Act, 1999      Hearing Officer and the Director, Office
issuance of rules and regulations. The           V. Opportunity for Public Comment            of Hearings and Appeals. However, the
purpose of these notices is to give interested                                                final determination in a case under
                                                 I. Introduction and Background
persons an opportunity to participate in the                                                  review is rendered by the Director,
rule making prior to the adoption of the final      The DOE has established procedures
                                                                                              Office of Security Affairs. In order to
rules.                                           to resolve questions concerning the
                                                 access authorization eligibility for         comply with the Executive Order
                                                 individuals (including consultants and       requirement that an individual be
DEPARTMENT OF ENERGY                             agents) who are applicants for               afforded the opportunity to appeal to a
                                                 employment or employed by: the DOE;          high level panel, the DOE proposes to
10 CFR Part 710                                  DOE contractors and subcontractors at        amend 10 CFR Part 710 to allow for: an
RIN 1992–AA22                                    any tier; DOE access permittees; and         initial decision concerning access
                                                 other persons designated by the              authorization eligibility to be made by
Office of Nonproliferation and National          Secretary of Energy for access to DOE        the local DOE Manager; a review
Security; Criteria and Procedures for            classified matter and/or special nuclear     decision to be made after completion of
Determining Eligibility for Access to            material. This access authorization is       a hearing by a Hearing Officer; and a
Classified Matter or Special Nuclear             commonly referred to as a security           final decision to be made by a high level
Material                                         clearance. These procedures are              three member Appeal Panel (hereafter
                                                 codified in Subpart A of Title 10, Code      referred to as ‘‘Appeal Panel’’) at DOE
AGENCY: Office of Nonproliferation and                                                        Headquarters. This Appeal Panel,
                                                 of Federal Regulations, Part 710
National Security, DOE.                                                                       consistent with Executive Order 12968,
                                                 (hereafter referred to as 10 CFR Part 710)
ACTION: Notice of proposed rulemaking.           which would be amended if today’s            would consist of one DOE security
                                                 proposed rule were promulgated as a          official and two other DOE officials
SUMMARY: The DOE proposes to amend                                                            outside the security field. The DOE
its regulations concerning the                   final rule.
                                                    When the DOE proposes to deny or          proposes that its Appeal Panel be
procedures used to render final                                                               comprised of: the Director, Office of
                                                 revoke an access authorization under
determinations of eligibility for access                                                      Security Affairs; an attorney from the
                                                 current procedures, the individual is
to classified matter and/or special                                                           Office of General Counsel; and a
                                                 afforded an opportunity to appear before
nuclear material. The purpose of the                                                          representative from the appropriate DOE
                                                 a DOE Hearing Officer. The Hearing
amendments is to ensure that DOE                                                              Headquarters office. The notifications
                                                 Officer considers favorable and
procedures in this regard conform to the                                                      currently provided to the individual and
                                                 unfavorable information presented
access eligibility determination                 during the hearing and prepares a report     the opportunity afforded the individual
provisions in Part 5 of Executive Order          of findings, relative to the merit of the    to participate in a hearing before a DOE
12968,’’Access to Classified                     DOE allegations, and an opinion as to        Hearing Officer would not be affected by
Information,’’ signed by the President in        whether access authorization for the         the amendments proposed today. The
August 1995.                                     individual should be granted or denied,      DOE also proposes several other
DATES: Comments may be submitted by              or reinstated or revoked. The Hearing        amendments to 10 CFR Part 710 as
October 15, 1999.                                Officer’s findings and opinion may be        described below.
ADDRESSES: Ten (10) copies of                    appealed by either the individual or the     II. Summary of Proposed Changes
comments should be sent to: A. Barry             DOE to the Director, Office of Hearings
Dalinsky, Policy, Standards and                  and Appeals. The administrative record,        As noted above, the proposed
Analysis Division, Office of Safeguards          which includes the opinions rendered         regulations will revise existing
and Security, NN–512, U.S. Department            by the Hearing Officer and the Director,     regulations to comply with Executive
of Energy, 19901 Germantown Road,                Office of Hearings and Appeals, is then      Order 12968. The proposed procedures
Germantown, MD 20874–1290.                       forwarded to the Director, Office of         continue to provide for a hearing before
FOR FURTHER INFORMATION CONTACT: A.              Security Affairs, who carefully              a Hearing Officer; however, the
Barry Dalinsky at the address above or           considers the record and makes a final       possibility of an appeal of the Hearing
telephone 301–903–5010.                          determination as to whether access           Officer’s opinion to the Director, Office
                                                 authorization for the individual will be     of Hearings and Appeals, is eliminated
SUPPLEMENTARY INFORMATION:
I. Introduction and Background                   either granted or denied, or reinstated or   and the final determination currently
II. Summary of Proposed Changes                  revoked. On August 2, 1995, the              rendered by the Director, Office of
III. Section by Section Discussion of Changes    President signed Executive Order 12968,      Security Affairs, is replaced by a final
IV. Procedural Requirements                      ‘‘Access to Classified Information,’’        decision rendered by an Appeal Panel.
   A. Executive Order 12866                      which requires that an individual              Under the proposed regulations, the
   B. Review Under the Regulatory Flexibility    determined not to meet the standards         initial decision is to be made by the
      Act                                        for access authorization be provided an      local Manager to deny or revoke an
   C. Review Under the National                  opportunity to appeal in writing a           individual’s access authorization. The
      Environmental Policy Act
   D. Review Under the Paperwork Reduction
                                                 denial of access to a high level panel       individual is advised of the initial
      Act                                        comprised of at least three members,         decision and the reason(s) therefor and
   E. Review Under Executive Order 12988         two of whom shall be selected from           offered the opportunity to appear at a
   F. Review Under the Unfunded Mandates         outside the security field. As noted         hearing before a DOE Hearing Officer. If
      Reform Act of 1995                         above, current DOE procedures allow          the individual elects not to participate
44434              Federal Register / Vol. 64, No. 157 / Monday, August 16, 1999 / Proposed Rules

in a hearing, the initial decision by the     awaiting trial. The DOE would consider      Section 710.10 Suspension of Access
Manager is considered final unless the        the seriousness of the crime with which     Authorization
individual requests a review and final        the individual has been charged before        Paragraph (a) is rewritten for clarity.
decision by the Appeal Panel. If the          deciding whether to continue or             Paragraphs (e) and (f) would be added
individual elects to participate in a         suspend further processing of the access    to this section to clarify DOE internal
hearing, the Hearing Officer will             authorization request. A decision to        procedures. No substantive changes are
conduct a hearing and render a written        suspend further processing of the access    made to paragraphs (b), (c), and (d) of
decision upon completion of the hearing       authorization request could be appealed     this section.
to either grant or deny, or reinstate or      by the individual under the newly
revoke, access authorization for the                                                      Section 710.21 Notice to Individual
                                              added paragraph (g) to this section
individual. The individual is advised of      which would also allow the individual         Paragraph (b)(2) is expanded to
the Hearing Officer’s decision which, if      to appeal an unfavorable decision made      require the DOE to advise the individual
unfavorable to the individual, is referred                                                of the specific reason(s) the conduct
                                              under paragraphs (d) and (e) of this
at the individual’s request to the Appeal                                                 and/or circumstances have raised a
                                              section to the Director, Office of
Panel for further review and a final                                                      doubt concerning his/her access
decision as to the individual’s access        Safeguards and Security.
                                                                                          authorization eligibility. The current
authorization eligibility. If the             Section 710.5 Definitions                   section 710.22, Additional information,
individual fails to request a referral to                                                 would be incorporated into this section
the Appeal Panel, the decision rendered         Minor changes would be made to the        as a new paragraph (c). Paragraph (c)(3)
by the Hearing Officer is final. If the       definitions for Local Director of           would be modified to include
Hearing Officer’s decision is favorable to    Security, National Security Information,    explaining the individual’s rights under
the individual, either the Manager or         and Operations Office Manager or            the Freedom of Information Act as well
Director, Office of Safeguards and            Manager to reflect updated                  as the Privacy Act. The proposed
Security, may elect to refer the              organizational changes and an updated       changes will not affect the application
individual’s case to the Appeal Panel for     reference to the Executive Order. A         of the procedures to the individual.
further review and a final decision. If       definition for Classified Matter would      Section 710.22 Initial Decision Process
DOE officials elect not to refer the          be added to this section.
individual’s case to the Appeal Panel for                                                    This section is retitled and will
further review, the Hearing Officer’s         Section 710.7 Application of the            establish the process by which the
decision in the case is final. If a case is   Criteria                                    Manager renders an initial decision
referred to the Appeal Panel by either                                                    concerning the individual’s access
                                                 Changes would be made to paragraph       authorization eligibility when the
the individual or DOE officials, the
Appeal Panel members will review the          (a) to clarify that: the decision process   individual elects not to request a
administrative record and any                 applies not only to the granting but also   hearing before a DOE Hearing Officer or
additional material submitted for             the continuation of access authorization;   fails to respond to the DOE’s
consideration by the parties, and render      any doubt as to access authorization        Notification Letter. The individual will
a final written decision, decided by          eligibility would be resolved in favor of   then be notified in writing of the
majority vote of the panel members, as        the national security (as required in       Manager’s initial decision and the
to the individual’s access authorization      Executive Order 12968); and, absent any     reason(s) therefor, and, if the initial
eligibility. The decision will be made a      derogatory information, a favorable         decision is unfavorable to the
part of the administrative record.            decision usually would be made as to        individual, the right to file a written
   Upon issuance of the final rule, there     the individual’s access authorization       request for a review of the matter by the
will be a provision specifying that cases     eligibility.                                Appeal Panel. In unfavorable initial
in process, wherein the individual has                                                    decisions, if the individual fails to
been provided a notification letter by        Section 710.8 Criteria                      respond to the Manager’s notification or
the DOE, will continue to be subject to                                                   fails to file a written request for review
                                                 Minor nomenclature changes would         by the Appeal Panel, the initial decision
the current regulations.                      be made to paragraph (f); paragraph (g)     of the Manager is final. This initial
III. Section by Section Discussion of         would be expanded to include classified     decision process is similar to current
Changes                                       and sensitive information technology        regulations and would implement the
                                              systems; the term ‘‘other licensed          first decision level of the three-tiered
Section 710.1 Purpose
                                              physician’’ would be deleted from           access eligibility decision process
   Paragraph (b) of this section would be     paragraphs (h) and (j), and the term        required by Executive Order 12968.
changed by: replacing the reference to        ‘‘board-certified psychiatrist’’ would be
Executive Order 12356 with a reference                                                    Section 710.23 Extension of Times by
                                              changed in those paragraphs to
to Executive Order 12958; adding a                                                        the Manager
                                              ‘‘psychiatrist;’’ the word ‘‘Federal’’
reference to Executive Order 12968,           would be inserted before the word             The words ‘‘Operations Office’’ are
‘‘Access to Classified Information;’’ and     ‘‘law’’ in paragraph (k); and the term      deleted from the section title.
adding a reference to a new Appendix          ‘‘conflicting allegiances’’ would be
B to the subpart.                                                                         Section 710.27 Hearing Officer’s
                                              added to the second sentence in             Decision
Section 710.4 Policy                          paragraph (l).                                 Currently titled ‘‘Opinion of the
   No substantive changes would be            Section 710.9 Action on Derogatory          Hearing Officer,’’ this section is retitled
made to paragraphs (a), (b), (d), (e), and    Information                                 and changed to allow the Hearing
(f) of this section. Paragraph (c) would                                                  Officer to render a decision as to the
be amended to allow the DOE to                  This section is reformatted to clarify    individual’s access authorization
determine whether further processing          DOE internal procedures. The proposed       eligibility after completion of the
should be continued or suspended for          changes will not affect the application     hearing. Previously, the Hearing Officer
an access authorization applicant who is      of the procedures to the individual.        rendered an opinion only as to the
                  Federal Register / Vol. 64, No. 157 / Monday, August 16, 1999 / Proposed Rules                             44435

individual’s access authorization            writing of the Appeal Panel’s final          Appendix B
eligibility. The procedures used by the      decision. This section would be                This appendix is added to this
Hearing Officer in reaching the findings     changed also to allow the Director,          subpart for reference purposes only. The
of fact are not changed.                     Office of Security Affairs, with the         Adjudicative Guidelines were
                                             approval of the Secretary, to defer an       developed by the Security Policy Board
Section 710.28 Action on the Hearing
Officer’s Decision                           Appeal Panel final decision if the           in March 1997 for distribution
                                             individual is the subject of an              throughout the Executive Branch. The
  This section is retitled to reflect that   unresolved inquiry or investigation of a
the Hearing Officer will issue a decision                                                 guidelines are not subject to public
                                             matter that would affect the individual’s    notice and comment rulemaking
rather than an opinion. Procedures are       DOE access authorization eligibility;
established for the individual or DOE                                                     procedures.
                                             and, in rare circumstances, to refer a
officials to request that the case be        case to the Secretary for a final decision   IV. Procedural Requirements
reviewed by the Appeal Panel. If no          if the Director is aware of information
such request is made, the decision of the                                                 A. Executive Order 12866
                                             that can not for national security
Hearing Officer in the case is final. The    reasons be disclosed in the proceedings        Today’s regulatory action has been
party requesting a review of the case by     before a DOE Hearing Officer.                determined not to be a ‘‘significant
the Appeal Panel is responsible for                                                       regulatory action’’ under Executive
notifying the other party of the filing      Section 710.30 New Evidence                  Order 12866, ‘‘Regulatory Planning and
and providing the other party with a           Minor changes are made to this newly       Review’’ (58 FR 51735, October 4, 1993).
copy of the statement filed with the         redesignated section to reflect the new      Accordingly, today’s action was not
Appeal Panel. The Hearing Officer’s          decision structure in the process. The       subject to review under the Executive
decision represents the second level in      changes do not affect the application of     Order by the Office of Information and
the three-tiered access eligibility          the procedures to the individual.            Regulatory Affairs.
decision process required by Executive
                                             Section 710.31 Action by the Secretary       B. Review Under the Regulatory
Order 12968.
                                                                                          Flexibility Act
Section 710.29 Final Appeal Process            Paragraphs (a), (b), and (c) of this          The Regulatory Flexibility Act, 5
   Sections 710.29 through 710.34 would      newly designated section would be            U.S.C. 601 et seq., requires that a federal
be redesignated as sections 710.30           changed and a new paragraph (d) added        agency prepare a regulatory flexibility
through 710.34. A new section 710.29,        to allow the Secretary to approve the        analysis for any rule for which the
‘‘Final appeal process,’’ is added to        deferral of an Appeal Panel final            agency is required to publish a general
implement the third decision level of        decision and to render a final decision      notice of proposed rulemaking. Such an
the three-tiered access eligibility          in cases where information cannot be         analysis is not required, however, if the
decision process required by Executive       disclosed, for national security reasons,    agency certifies that the rule would not,
Order 12968. Currently, the final            during the proceedings before a DOE          if promulgated, have a significant
decision as to the individual’s access       Hearing Officer.                             economic impact on a substantial
authorization eligibility is rendered by     Section 710.32 Reconsideration of            number of small entities (5 U.S.C.
the Director, Office of Security Affairs,    Access Eligibility                           605(b)).
unless a final decision is rendered by                                                       DOE certifies that the amendments to
the Manager under section 710.21(b)(8)         Paragraph (c) of this newly                10 CFR Part 710 proposed today would
or the Secretary of Energy under section     redesignated section has been clarified      not have a significant economic impact
710.31. Under the proposed regulations,      to reflect that only the individual can      on a substantial number of small
a final decision as to the individual’s      request reconsideration of his or her        entities. This proposed rule, if
access authorization eligibility would be    case.                                        promulgated as a final rule, would
rendered by a three member Appeal            Section 710.33 Terminations                  change the Department’s procedures for
Panel comprised of: the Director, Office                                                  eligibility determinations for access to
of Security Affairs, serving as a              This newly redesignated section is         classified matter and/or special nuclear
permanent panel member and as the            changed to allow final decisions to be       material. The amendments, which are
Appeal Panel Chairman; a DOE attorney        made a part of the administrative record     required to conform 10 CFR Part 710 to
designated by the General Counsel; and       prior to the DOE being notified of the       the requirements of Executive Order
a DOE employee designated by the head        termination.                                 12968, would affect only individual
of the appropriate DOE Headquarters          Section 710.34 Attorney                      employees or applicants for
element or, in special circumstances by      Representation                               employment. The rule does not directly
the Director, Office of Security Affairs.                                                 regulate small entities.
Each panel member will be a United             No substantive changes are made to
States citizen and hold a DOE Q access       this newly redesignated section.             C. Review Under the National
authorization. The Appeal Panel will                                                      Environmental Policy Act
                                             Section 710.35 Timeframes
convene in response to a request filed                                                       DOE has concluded that the proposed
by the individual or a DOE official for        No substantive changes are made to         rule, which would amend the
further review of the individual’s case;     this newly redesignated section.             Department’s procedures for eligibility
review the administrative record and                                                      determinations for access to classified
                                             Section 710.36 Acting Officials
any new material submitted by the                                                         matter and/or special nuclear material,
individual or the DOE; and render a            This section would be added to the         falls into a class of actions that would
final decision in writing as to whether      current regulations to allow the             not individually or cumulatively have a
access authorization should be granted       authorities conferred in this subpart to     significant impact on the human
or denied, or reinstated or revoked for      be exercised by persons designated in        environment as determined by DOE’s
the individual. Appeals will be decided      writing as acting for, or in the temporary   regulations (10 CFR Part 1021, Subpart
by a majority vote of the panel members.     capacity of, the principal decision-         D) implementing the National
The individual will be informed in           makers.                                      Environmental Policy Act of 1969 (42
44436             Federal Register / Vol. 64, No. 157 / Monday, August 16, 1999 / Proposed Rules

U.S.C. 4321 et seq.). Specifically, the      affect small governments. The rule            Issued in Washington, DC, on August 3,
proposed rule is categorically excluded      amendments proposed today would not         1999.
from environmental review as the             impose a federal mandate on state, local,   Rose Gottemoeller,
proposed rule is strictly procedural         or tribal governments or on the private     Assistant Secretary for Nonproliferation and
(Category Exclusion A6). Accordingly,        sector. Therefore, the requirements of      National Security.
neither an environmental assessment          Title II of the Unfunded Mandates             For the reasons set forth in the
nor an environmental impact statement        Reform Act of 1995 do not apply.            preamble, Part 710 of Title 10 of the
is required.                                                                             Code of Federal Regulations is proposed
                                             G. Review Under the Treasury and
D. Review Under the Paperwork                                                            to be amended as set forth below.
                                             General Government Appropriations
Reduction Act                                Act, 1999                                   PART 710—CRITERIA AND
  No new collection of information is                                                    PROCEDURES FOR DETERMINING
proposed to be imposed by this                 Section 654 of the Treasury and
                                             General Government Appropriations           ELIGIBILITY FOR ACCESS TO
rulemaking. Accordingly, no clearance                                                    CLASSIFIED MATTER OR SPECIAL
by the Office of Management and              Act, 1999 (Pub. L. No. 105–277) requires
                                                                                         NUCLEAR MATERIAL
Budget is required under the Paperwork       Federal agencies to issue a Family
Reduction Act (44 U.S.C. 3501, et seq.).     Policymaking Assessment for any                1. The authority citation for Part 710
                                             proposed rule or policy that may affect     is revised to read as follows:
E. Review Under Executive Order 12988        family well-being. Today’s proposal           Authority: Atomic Energy Act of 1954, sec.
  Section 3 of Executive Order 12988         would not have any impact on the            141, 68 Stat. 940, as amended (42 U.S.C.
(61 FR 4729) instructs each agency to        autonomy or integrity of the family as      2161); Atomic Energy Act of 1954, sec. 145,
adhere to certain requirements in            an institution. Accordingly, DOE has        68 Stat. 942, as amended (42 U.S.C. 2165);
promulgating new regulations and             concluded that it is not necessary to       Atomic Energy Act of 1954, sec. 161, 68 Stat.
reviewing existing regulations. These        prepare a Family Policymaking               948, as amended (42 U.S.C. 2201); E.O.
requirements, set forth in sections 3 (a)                                                10450, 3 CFR 1949–1953 comp., p. 936, as
                                             Statement.                                  amended; E.O. 10865, 3 CFR 1959–1963
and (b), include eliminating drafting                                                    comp., p. 398, as amended, 3 CFR Chap. IV;
errors and ambiguity, drafting the           V. Opportunity for Public Comment
                                                                                         E.O. 12958, 3 CFR 1995, comp., p. 333; E.O.
regulations to minimize litigation,             DOE believes that no substantial issue   12968, 3 CFR 1995, comp., p. 391.
providing clear and certain legal            of fact or law exists with respect to the
standards for affected conduct, and                                                      Subpart A—General Criteria and
                                             proposed amendments, and that the
promoting simplification and burden                                                      Procedures for Determining Eligibility
                                             proposed amendments will not have a
reduction. Agencies are also instructed                                                  for Access to Classified Matter or
                                             substantial impact on the nation’s
to make every reasonable effort to                                                       Special Nuclear Material
                                             economy or large numbers of
ensure that the regulation specifies
                                             individuals or businesses. Therefore, the     2. Section 710.1 is amended by
clearly any preemptive effect, effect on
                                             DOE does not intend to provide an           revising paragraph (b) to read as follows:
existing Federal law or regulation, and
                                             opportunity for oral presentation of
retroactive effect; describes any                                                        § 710.1   Purpose.
                                             views or arguments regarding the
administrative proceedings to be                                                         *     *     *    *     *
                                             proposed amendments. Nevertheless,
available prior to judicial review and                                                     (b) This subpart is published to
                                             the DOE will consider scheduling a
any provisions for the exhaustion of                                                     implement: Executive Order 12968, 60
                                             public hearing for the oral presentation
such administrative proceedings; and                                                     FR 40245 (August 7, 1995); Executive
                                             of views and arguments if members of
defines key terms. The DOE certifies                                                     Order 12958, 60 FR 19825 (April 20,
                                             the public requesting a hearing present
that today’s proposed rule meets the                                                     1995); Executive Order 10865, 25 FR
                                             a reasonable argument that a hearing is
requirements of sections 3 (a) and (b) of                                                1583 (February 24, 1960), as amended;
                                             appropriate. The public is invited to
Executive Order 12988.                                                                   Executive Order 10450, 18 FR 2489
                                             submit written comments regarding the
F. Review Under the Unfunded                 proposed amendments set forth in this       (April 27, 1954), as amended; and the
Mandates Reform Act of 1995                  notice to the address indicated in the      1997 Adjudicative Guidelines approved
                                             ‘‘addresses’’ section of this preamble.     by the President and set forth in
  Title II of the Unfunded Mandates                                                      Appendix B to this subpart.
Reform Act of 1995, 2 U.S.C. 1531 et         The designation ‘‘Amendment of
                                             Rules—10 CFR Part 710’’ should be             3. Section 710.4 is amended by
seq., requires each federal agency, to the                                               revising paragraph (c) and adding
extent permitted by law, to prepare a        indicated on the outside of the envelope
                                             and ten (10) copies of comments should      paragraph (g) as follows:
written assessment of the effects of any
federal mandate in an agency rule that       be submitted. All comments received by      § 710.4   Policy.
may result in the expenditure by state,      the DOE will be available for public        *     *      *    *     *
local, and tribal governments in the         inspection and copying in the DOE’s           (c) If the individual is currently
aggregate, or by the private sector, of      Freedom of Information Reading Room,        awaiting hearing or trial, or has been
$100 million or more in any one year.        Room 1E–190, Forrestal Building, 1000       convicted of a crime punishable by
The Act also requires a federal agency       Independence Avenue, SW,                    imprisonment of six (6) months or
to develop an effective process to permit    Washington, DC 20585, telephone             longer, or is awaiting or serving a form
timely input by elected officers of state,   number (202) 586–3142, between 9:00         of preprosecution probation, suspended
local, and tribal governments on a           a.m. and 4:00 p.m., Monday through          or deferred sentencing, court ordered
proposed ‘‘significant intergovernmental     Friday excluding holidays.                  probation, or parole in conjunction with
mandate,’’ and it requires an agency to      List of Subjects in 10 CFR Part 710         an arrest or criminal charges initiated
develop a plan for giving notice and                                                     against the individual for a crime that is
opportunity for timely input to                Administrative practice and               punishable by imprisonment of six (6)
potentially affected small governments       procedure, Classified information,          months or longer, DOE may suspend
before establishing any requirements         Governments contracts, Nuclear              processing an application for access
that might significantly or uniquely         materials.                                  authorization until such time as the
                     Federal Register / Vol. 64, No. 157 / Monday, August 16, 1999 / Proposed Rules                                44437

hearing, trial, criminal prosecution,         Director, Office of Safeguards and               administered by a physician licensed to
suspended sentencing, deferred                Security.                                        dispense drugs in the practice of
sentencing, probation, or parole has          *     *    *      *    *                         medicine, or as otherwise authorized by
been completed.                                 5. Section 710.7 is amended by                 Federal law.
*     *      *     *    *                     revising paragraph (a) to read as follows:          (l) Engaged in any unusual conduct or
                                                                                               is subject to any circumstances which
  (g) If an individual believes that the      § 710.7 Application of the criteria.             tend to show that the individual is not
provisions of paragraph (c), (d), or (e) of                                                    honest, reliable, or trustworthy; or
                                                 (a) The decision as to access
this section have been inappropriately                                                         which furnishes reason to believe that
                                              authorization is a comprehensive,
applied, a written appeal may be filed                                                         the individual may be subject to
                                              common-sense judgment, made after
with the Director, Office of Safeguards                                                        pressure, coercion, exploitation, or
                                              consideration of all relevant
and Security, DOE Headquarters, within                                                         duress which may cause the individual
                                              information, favorable or unfavorable, as
30 calendar days of the date the                                                               to act contrary to the best interests of the
                                              to whether the granting or continuation
individual was notified of the action.                                                         national security. Such conduct or
                                              of access authorization will not
The Director, Office of Safeguards and                                                         circumstances include, but are not
                                              endanger the common defense and
Security, shall act on the written appeal                                                      limited to, criminal behavior, a pattern
                                              security and is clearly consistent with
as described in section 710.6(c).                                                              of financial irresponsibility, conflicting
                                              the national interest. Any doubt as to an
  4. Section 710.5 is amended by              individual’s access authorization                allegiances, or violation of any
adding in alphabetical order a definition     eligibility shall be resolved in favor of        commitment or promise upon which
for the term ‘‘Classified Matter’’ and by     the national security. Absent any                DOE previously relied to favorably
revising the definitions for ‘‘Local          derogatory information, a favorable              resolve an issue of access authorization
Director of Security,’’ ‘‘National            determination usually will be made as            eligibility.
Security Information,’’ and ‘‘Operations      to access authorization eligibility.                7. Section 710.9 is revised to read as
Office Manager or Manager’’ as follows:                                                        follows:
                                              *      *     *     *     *
§ 710.5   Definitions.                           6. Section 710.8 is amended by                § 710.9   Action on derogatory information.
*      *     *    *    *                      adding the words ‘‘(or National                     (a) If the reports of investigation of an
                                              Security)’’ between the words                    individual or other reliable information
   Classified Matter means the material       ‘‘Sensitive’’ and ‘‘Positions’’ in the first     tend to establish the validity and
of thought or expression that is              sentence of paragraph (f) and revising           significance of one or more items in the
classified pursuant to statute or             paragraphs (g), (h), (j), (k), and (l) to read   criteria, or of other reliable information
Executive Order.                              as follows:                                      or facts which are of security concern,
*      *     *    *    *                                                                       although outside the scope of the stated
                                              § 710.8   Criteria.
   Local Director of Security means the                                                        categories, such information shall be
Operations Office or Naval Reactors           *      *     *      *     *                      regarded as derogatory and create a
Office Security and Safeguards Division          (g) Failed to protect classified matter,      question as to the individual’s access
Director, or other similar title; for         or safeguard special nuclear material; or        authorization eligibility.
Washington, DC area cases, the Director,      violated or disregarded security or                 (b) If a question arises as to the
Headquarters Operations Division; for         safeguards regulations to a degree which         individual’s access authorization
the Idaho Operations Office, the              would be inconsistent with the national          eligibility, the Local Director of Security
Program Manager, Security and                 security; or disclosed classified                shall authorize the conduct of an
Resource Management Division; for the         information to a person unauthorized to          interview with the individual, or other
Pittsburgh Naval Reactors Office, the         receive such information; or violated or         appropriate actions, which may include
Director, Contracts and Securities            disregarded regulations, procedures, or          a DOE-sponsored mental evaluation,
Division; for the Savannah River              guidelines pertaining to classified or           and, on the basis of the results of such
Operations Office, the Director, Internal     sensitive information technology                 interview or actions, may authorize the
Security Division; and any person             systems.                                         granting of the individual’s access
designated in writing to serve in one of         (h) An illness or mental condition of         authorization. If, in the opinion of the
the aforementioned positions in an            a nature which, in the opinion of a              Local Director of Security, the question
‘‘acting’’ capacity.                          psychiatrist or licensed clinical                as to the individual’s access
                                              psychologist, causes or may cause, a             authorization eligibility has not been
*      *     *    *    *
                                              significant defect in judgment or                favorably resolved, he shall submit the
   National Security Information means        reliability.                                     matter to the Manager with a
any information that has been
                                              *      *     *      *     *                      recommendation that authority be
determined, pursuant to Executive
                                                 (j) Been, or is, a user of alcohol            obtained to process the individual’s case
Order 12958 or any predecessor Order,
                                              habitually to excess, or has been                under administrative review
to require protection against
                                              diagnosed by a psychiatrist or a licensed        procedures.
unauthorized disclosure and that is so
                                              clinical psychologist as alcohol                    (c) If the Manager agrees that
designated.
                                              dependent or as suffering from alcohol           unresolved derogatory information is
*      *     *    *    *                      abuse.                                           present and that appropriate attempts to
   Operations Office Manager or                  (k) Trafficked in, sold, transferred,         resolve such derogatory information
Manager means the Manager of a DOE            possessed, used, or experimented with a          have been unsuccessful, he shall submit
Operations Office (Albuquerque,               drug or other substance listed in the            a request for authority to conduct an
Chicago, Idaho, Nevada, Oak Ridge,            Schedule of Controlled Substances                administrative review proceeding,
Oakland, Richland, or Savannah River),        established pursuant to section 202 of           accompanied by an explanation of the
the Manager of the Pittsburgh Naval           the Controlled Substances Act of 1970            security concerns and a duplicate
Reactors Office, the Manager of the           (such as marijuana, cocaine,                     Personnel Security File, to the Director,
Schenectady Naval Reactors Office, and,       amphetamines, barbiturates, narcotics,           Office of Safeguards and Security. If the
for Washington, DC area cases, the            etc.) except as prescribed or                    Manager believes that the derogatory
44438             Federal Register / Vol. 64, No. 157 / Monday, August 16, 1999 / Proposed Rules

information has been favorably                (3) Such other action as the Director         (3) The Hearing Officer refers the
resolved, he shall direct that access       deems appropriate.                           individual’s case to the Manager in
authorization be granted for the              (f) The Director, Office of Safeguards     accordance with § 710.25(e) or
individual. The Manager may also direct     and Security, shall authorize one of         § 710.26(b).
the Local Director of Security to obtain    these options within 30 calendar days of        (b) Unless an extension of time is
additional information in the matter        the receipt of the Manager’s request         granted by the Director, Office of
prior to deciding whether to grant the      unless an exception is granted by the        Safeguards and Security, the Manager’s
individual access authorization or to       Director, Office of Security Affairs.        initial decision as to the individual’s
submit a request for authority to             9. Section 710.21 is amended by            access authorization eligibility shall be
conduct an administrative review            revising paragraphs (a) and (b)(2) and       made within 15 calendar days of the
proceeding. A decision in the matter        adding paragraph (c) to read as follows:     date of receipt of the information
shall be rendered by the Manager within                                                  requested in paragraph (a) of this
                                            § 710.21   Notice to the individual.
10 calendar days of its receipt.                                                         section. The Manager shall either grant
  (d) Upon receipt of the Manager’s            (a) Unless an extension is authorized     or deny, or reinstate or revoke, the
request for authority to conduct an         by the Director, Office of Safeguards and    individual’s access authorization.
administrative review proceeding, the       Security, within 30 calendar days of            (c) A letter reflecting the Manager’s
Director, Office of Safeguards and          receipt of authority to institute            initial decision in the individual’s case
Security, shall review the matter and       administrative review procedures, the        shall be signed by the Manager and
shall authorize:                            Manager shall prepare and deliver to the     delivered to the individual within 15
  (1) The institution of administrative     individual a notification letter approved    calendar days of the date of the
review proceedings set forth in sections    by the local Office of Chief Counsel, or     Manager’s decision unless an extension
§§ 710.20 through 710.32;                   the Office of General Counsel for            of time is granted by the Director, Office
  (2) The granting of access                Headquarters cases. Where practicable,       of Safeguards and Security. If the
authorization; or                           the letter shall be delivered to the         Manager’s initial decision is unfavorable
  (3) Such other action as the Director     individual in person.                        to the individual, the individual shall be
                                               (b) * * *                                 advised:
deems appropriate.
                                               (1) * * *                                    (1) Of the Manager’s unfavorable
  (e) The Director, Office of Safeguards       (2) The information which creates a
and Security, shall authorize one of                                                     decision and the reason(s) therefor;
                                            substantial doubt regarding the                 (2) That within 30 calendar days from
these options within 30 calendar days of    individual’s access authorization
the receipt of the Manager’s request                                                     the date of receipt of the letter, he may
                                            eligibility (which shall be as               file a written request for a review of the
unless an extension is granted by the       comprehensive and detailed as the
Director, Office of Security Affairs.                                                    Manager’s initial decision through the
                                            national security permits) and why that      Director, Office of Safeguards and
  8. Section 710.10 is amended by           information creates such doubt.
revising paragraph (a) and adding                                                        Security, DOE Headquarters, to the DOE
paragraphs (e) and (f) as follows:          *      *     *    *     *                    Headquarters Appeal Panel (hereafter
                                               (c) The notification letter referenced    referred to as the ‘‘Appeal Panel’’);
§ 710.10 Suspension of access               in paragraph (b) of this section shall          (3) That the Director, Office of
authorization.                              also:                                        Safeguards and Security, may, for good
  (a) If information is received that          (1) Describe the individual’s access      cause shown, at the written request of
raises a question concerning an             authorization status until further notice;   the individual, extend the time for filing
individual’s continued access                  (2) Advise the individual of the right    a written request for a review of the case
authorization eligibility, the Local        to representation at the individual’s        by the Appeal Panel; and
Director of Security shall authorize        own expense at each and every stage of          (4) That if the written request for a
action(s), to be taken on an expedited      the proceedings;                             review of the Manager’s initial decision
basis, to resolve the question pursuant        (3) Provide the name and telephone        by the Appeal Panel is not filed within
to section § 710.9(b). If the question as   number of the designated DOE official        30 calendar days of the individual’s
to the individual’s continued access        to contact for any further information       receipt of the Manager’s letter, the
authorization eligibility is not resolved   desired concerning the proceedings,          Manager’s initial decision in the case
in favor of the individual, the Local       including an explanation of the              shall be final.
Director of Security shall submit the       individual’s rights under the Freedom of
                                            Information and Privacy Acts; and            § 710.23   [Amended]
matter to the Manager with a
recommendation that the individual’s           (4) Include a copy of this subpart.          11. Section 710.23 is amended by
access authorization be suspended              10. Section 710.22 is revised to read     removing the words ‘‘Operations Office’’
pending the final determination             as follows:                                  from the section heading.
                                                                                            12. Section 710.27 is amended by
resulting from the procedures in this       § 710.22   Initial decision process.         revising the section heading, removing
subpart.                                      (a) The Manager shall make an initial      the words ‘‘an initial opinion’’ in the
*     *      *     *    *                   decision as to the individual’s access       first sentence of paragraph (a) and
  (e) Upon receipt of the Manager’s         authorization eligibility based on the       inserting in their place the words ‘‘a
request for authority to conduct an         existing information in the case if:         decision,’’ by removing sections
administrative review proceeding, the         (1) The individual fails to respond to     710.27(e), 710.27(f), and 710.27(g) and
Director, Office of Safeguards and          the notification letter by filing a timely   by revising section 710.27(d) to read as
Security shall review the matter and        written request for a hearing before a       follows:
shall authorize:                            Hearing Officer or fails to respond to the
  (1) The institution of administrative     notification letter after requesting an      § 710.27   Hearing Officer’s decision.
review procedures set forth in §§ 710.20    extension of time to do so;                  *      *    *      *      *
through 710.32;                               (2) The individual’s response to the          (d) The Hearing Officer’s decision
  (2) The reinstatement of access           notification letter does not request a       shall be based on the Hearing Officer’s
authorization; or                           hearing before a Hearing Officer; or         findings of fact. If, after considering all
                   Federal Register / Vol. 64, No. 157 / Monday, August 16, 1999 / Proposed Rules                             44439

of the factors in light of the criteria set   the Appeal Panel or for an extension of        and as the Appeal Panel Chairman. The
forth in this subpart, the Hearing Officer    time to file a written request for further     second member of on the Appeal Panel
is of the opinion that it will not            review of the decision by the Appeal           shall be a DOE attorney designated by
endanger the common defense and               Panel in accordance with paragraphs            the General Counsel. The head of the
security and will be clearly consistent       (b)(1) or (b)(2) of this section; or, file a   DOE Headquarters element who has
with the national interest to grant or        written request for a further review of        cognizance over the individual whose
reinstate access authorization for the        the decision by the Appeal Panel after         access authorization eligibility is being
individual, the Hearing Officer shall         having been granted an extension of            considered may designate an employee
render a favorable decision; otherwise,       time to do so.                                 to act as the third member on the
the Hearing Officer shall render an              (c) If the Hearing Officer’s decision is    Appeal Panel; otherwise, the third
unfavorable decision. Within 15               favorable to the individual, within 30         member will be designated by the
calendar days of the Hearing Officer’s        calendar days of the individual’s receipt      Chairman. Only one member of the
written decision, the Hearing Officer         of the Manager’s notice:                       Appeal Panel shall be from the security
shall provide copies of the decision and         (1) The Manager or the Director,            field.
the administrative record to the              Office of Safeguards and Security, may            (c) In filing a written request for a
Manager and the Director, Office of           file a written request for further review      review by the Appeal Panel in
Safeguards and Security.                      of the decision by the Appeal Panel            accordance with §§ 710.22 and 710.28,
   13. Section 710.28 is revised to read      along with the statement required by           the individual, or the counsel or
as follows:                                   paragraph (e) of this section;                 representative, shall identify the
                                                 (2) The Director, Office of Security        relevant issues and may also submit any
§ 710.28 Action on the Hearing Officer’s      Affairs, may, at the written request of
decision.
                                                                                             relevant material in support of the
                                              the Manager or Director, Office of             individual. The individual’s written
   (a) Within 10 calendar days of receipt     Safeguards and Security, extend the            request and supportive material shall be
of the decision and the administrative        time for filing a request for further          made a part of the administrative
record, unless an extension of time is        review of the decision by the Appeal           record. The Director, Office of
granted by the Director, Office of            Panel; or                                      Safeguards and Security, shall provide
Safeguards and Security, the Manager             (3) The Manager, with the                   staff support to the Appeal Panel as
shall:                                        concurrence of the Director, Office of         requested by the Director, Office of
   (1) Notify the individual in writing of    Safeguards and Security, shall grant or        Security Affairs.
the Hearing Officer’s decision;               reinstate the individual’s access
   (2) Advise the individual in writing of                                                      (d) Within 15 calendar days from the
                                              authorization.                                 date of receipt of a request for a review
the appeal procedures available to the           (d) A copy of any request for further
individual in paragraph (b) of this                                                          of a case by the Appeal Panel, the
                                              review of the individual’s case by the         Director, Office of Security Affairs,
section if the decision is unfavorable to     Appeal Panel filed by the Manager or
the individual;                                                                              shall:
                                              the Director, Office of Safeguards and
   (3) Advise the individual in writing of                                                      (1) Request the General Counsel to
                                              Security, shall be provided to the
the appeal procedures available to the                                                       designate an attorney who shall serve as
                                              individual by the Manager.
Manager and the Director, Office of                                                          an Appeal Panel member;
                                                 (e) The party filing a request for
Safeguards and Security, in paragraph         review of the individual’s case by the            (2) Either request the head of the
(c) of this section if the decision is        Appeal Panel shall include with the            cognizant DOE element to designate, or
favorable to the individual; and,             request a statement identifying the            designate himself, an employee from
   (4) Provide the individual and/or          issues on which it wishes the Appeal           outside the security field who shall
counsel or representative, a copy of the      Panel to focus. A copy of such statement       serve as the third member of the Appeal
Hearing Officer’s decision and the            shall be served on the other party, who        Panel; and
administrative record.                        may file a response with the Appeal               (3) Arrange for the Appeal Panel
   (b) If the Hearing Officer’s decision is   Panel within 20 calendar days of receipt       members to convene to review the
unfavorable to the individual:                of the statement.                              administrative record or provide a copy
   (1) The individual may file with the          14. Sections 710.29 through 710.34          of the administrative record to the other
Director, Office of Safeguards and            are redesignated as §§ 710.30 through          Appeal Panel members for their
Security, a written request for further       710.35 and a new Peace Corps § 710.29          independent review.
review of the decision by the Appeal          is added to read as follows:                      (e) The Appeal Panel may initiate an
Panel along with a statement required                                                        investigation of any statement or
by paragraph (e) of this section within       § 710.29   Final appeal process.               material contained in the request for an
30 calendar days of the individual’s             (a) The Appeal Panel shall be               Appeal Panel review and use any
receipt of the Manager’s notice;              convened by the Director, Office of            relevant facts obtained by such
   (2) The Director, Office of Safeguards     Security Affairs, to review and render a       investigation in the conduct of the final
and Security may, for good cause              final decision in an access authorization      decision process. The Appeal Panel may
shown, extend the time for filing a           eligibility case referred by the               solicit and accept submissions from
request for further review of the             individual, the Manager, or the Director,      either the individual or DOE officials
decision by the Appeal Panel at the           Office of Safeguards and Security, in          that are relevant to the final decision
written request of the individual             accordance with §§ 710.22, 710.28, and         process and may establish appropriate
provided the request for an extension of      710.32 of this subpart.                        time frames to allow for such
time is filed by the individual within 30        (b) The Appeal Panel shall consist of       submissions. The Appeal Panel may
calendar days of receipt of the               three members, each of whom shall be           also consider any other source of
Manager’s notice;                             a DOE Headquarters employee, a United          information that will advance the final
   (3) The Hearing Officer’s decision         States citizen, and hold a DOE Q access        decision process, provided that both
shall be considered final if the              authorization. The Director, Office of         parties are afforded an opportunity to
individual does not: file a written           Security Affairs, shall serve as a             respond to all third party submissions.
request for a review of the decision by       permanent member of the Appeal Panel           All information obtained by the Appeal
44440              Federal Register / Vol. 64, No. 157 / Monday, August 16, 1999 / Proposed Rules

Panel under this section shall be made        during the initial and any subsequent          respond to the information provided by
a part of the administrative record.          deferral interval, except at the written       the Director, Office of Security Affairs,
   (f) Within 45 work days of the closing     request of the individual;                     to the Secretary under § 710.29(i), only
of the administrative record, the Appeal         (4) Obtain written approval from the        the Secretary may issue a final decision
Panel shall render a final written            Secretary to extend the deferral for each      to deny or revoke DOE access
decision in the case predicated upon an       subsequent 90 calendar day interval and        authorization for the individual after
evaluation of the administrative record,      advise in writing all concerned parties        personally reviewing the administrative
findings as to each of the allegations        of the Secretary’s approval;                   record and any additional material
contained in the notification letter, and        (5) Inform in writing all concerned         provided by the Director, Office of
any new evidence that may have been           parties when the inquiry or                    Security Affairs. The Secretary’s
submitted pursuant to § 710.30. Prior to      investigation has been completed and           authority may not be delegated and may
the Appeal Panel reaching its decision,       the results made available to the Appeal       be exercised only when the Secretary
the Director, Office of Security Affairs,     Panel.                                         determines that the circumstances
shall remind the other panel members             (i) If, upon receipt of a written request   described in §§ 710.26(l) or (o), or
that, in accordance with the                  for review of an individual’s case by the      710.29(i) are present, and such
requirements of Part 3—Access                 Appeal Panel, the Director, Office of          determination shall be final.
Eligibility Standards of Executive Order      Security Affairs, is aware or                     (b) Whenever the Secretary issues a
12968, any doubt regarding access             subsequently becomes aware of                  final decision as to the individual’s DOE
eligibility shall be resolved in favor of     information that adversely affects the         access authorization eligibility, the
the national security. If a majority of the   individual’s DOE access authorization          individual and other concerned parties
Appeal Panel members determine that it        eligibility and which can not for              will be notified in writing, by the
will not endanger the common defense          national security reasons be disclosed in      Director, Office of Security Affairs, of
and security and will be clearly              the proceedings before a DOE Hearing           that decision and of the Secretary’s
consistent with the national interest, the    Officer, the Director may refer the            findings with respect to each of the
Director, Office of Security Affairs, shall   information and the administrative             allegations contained in the notification
grant or reinstate access authorization       record to the Secretary for the final          letter and each substantial issue
for the individual; otherwise, the            decision as to the individual’s DOE            identified in the statement in support of
Director, Office of Security Affairs, shall   access authorization eligibility. In such      the request for review to the extent
deny or revoke access authorization for       instances, the Director, Office of             allowed by the national security.
the individual. The Appeal Panel              Security Affairs, shall notify in writing         (c) Nothing contained in these
written decision shall be made a part of      all concerned parties that the                 procedures shall be deemed to limit or
the administrative record.                    individual’s case has been provided to         affect the responsibility and powers of
   (g) The Director, Office of Security       the Secretary for a final decision in          the Secretary to issue subpoenas or to
Affairs, through the Director, Office of      accordance with § 710.31 of this               deny or revoke access to Restricted Data,
Safeguards and Security, shall inform in      subpart.                                       national security information, or special
writing the individual involved and              15. Newly redesignated § 710.30 is          nuclear material.
counsel or representative of the Appeal       amended by replacing the word                     (d) Only the Secretary may approve
Panel’s final decision. A copy of the         ‘‘determination’’ with the word                initial and subsequent requests under
correspondence shall also be provided         ‘‘decision’’ in paragraph (a) and              section 710.29(h) by the Director, Office
to the other panel members and the            replacing the words ‘‘an opinion’’ with        of Security Affairs, to defer the review
Manager.                                      the words ‘‘a decision’’ in paragraph          of an individual’s case by the Appeal
   (h) If, upon receipt of a written          (b)(1), by replacing the word ‘‘getting’’      Panel.
request for a review of the individual’s      with the word ‘‘receiving’’ in paragraph          17. Newly redesignated § 710.32 is
case by the Appeal Panel, the Director,       (b)(1), and by revising paragraph (b)(2)       revised to read as follows:
Office of Security Affairs, is aware or       to read as follows:
subsequently becomes aware of                                                                § 710.32 Reconsideration of access
information that the individual is the        § 710.30   New evidence.                       eligibility.
subject of an unresolved inquiry or           *      *     *     *    *                         (a) If, pursuant to the procedures set
investigation of a matter that could             (b)(2) In those cases where the             forth in §§ 710.20 through 710.31 of this
reasonably be expected to affect the          Hearing Officer’s decision has been            subpart, the Manager, Hearing Officer,
individual’s DOE access authorization         issued, the application for presentation       Appeal Panel, or the Secretary has made
eligibility, the Director may defer action    of new evidence shall be referred to the       a decision granting or reinstating access
by the Appeal Panel on the request until      Director, Office of Security Affairs. In       authorization for an individual, the
the inquiry or investigation is               the event that the Director, Office of         individual’s access authorization
completed and its results available for       Security Affairs, determines that the          eligibility shall be reconsidered as a
review by the Appeal Panel. In such           new evidence shall be received, he shall       new administrative review under the
instances, the Director, Office of            determine the form in which it, and the        procedures set forth in this subpart
Security Affairs, shall:                      other party’s response, shall be received.     when previously unconsidered
   (1) Obtain written approval from the       *      *     *     *    *                      derogatory information is identified, or
Secretary to defer review of the                 16. Newly redesignated § 710.31 is          the individual violates a commitment or
individual’s case by the Appeal Panel         revised to read as follows:                    promise upon which the DOE
for an initial interval not to exceed 90                                                     previously relied to favorably resolve an
calendar days;                                § 710.31   Action by the Secretary.            issue of access authorization eligibility.
   (2) Advise the individual and                (a) Whenever an individual has not              (b) If, pursuant to the procedures set
appropriate DOE officials in writing of       been afforded an opportunity to cross-         forth in §§ 710.20 through 710.31 of this
the initial deferral and the reason(s)        examine witnesses who have furnished           subpart, the Manager, Hearing Officer,
therefor;                                     information adverse to the individual          Appeal Panel, or the Secretary has made
   (3) Request that the individual’s          under the provisions of §§ 710.26(l) or        a decision denying or revoking access
employment status not be affected             (o), or the opportunity to review and          authorization for the individual, the
                     Federal Register / Vol. 64, No. 157 / Monday, August 16, 1999 / Proposed Rules                                      44441

individual’s access authorization             designated in writing as acting for, or in              (9) the likelihood of continuation or
eligibility may be reconsidered only          the temporary capacity of, the following             recurrence.
when the individual so requests, when         DOE positions: the Local Director of                    (b) Each case must be judged on its own
                                                                                                   merits, and final determination remains the
there is a bona fide offer of employment      Security, the Manager, the Director,                 responsibility of the specific department or
requiring access to Restricted Data,          Office of Safeguards and Security, or the            agency. Any doubt as to whether access to
national security information, or special     General Counsel. The responsibilities                classified information is clearly consistent
nuclear material, and when there is           and authorities of the Director, Office of           with national security will be resolved in
either:                                       Security Affairs, may be exercised in his            favor of the national security.
   (1) Material and relevant new              absence only by the Deputy Director,                    (c) The ultimate determination of whether
evidence which the individual and the         Office of Security Affairs.                          the granting or continuing of eligibility for a
individual’s representatives are without                                                           security clearance is clearly consistent with
                                                21. Appendix B to subpart A of Part
                                                                                                   the interests of national security must be an
fault in failing to present earlier, or       710 is added to read as follows:                     overall common sense determination based
   (2) Convincing evidence of                                                                      upon careful consideration of the following,
                                              Appendix B to Subpart A of Part 710—
rehabilitation or reformation.                                                                     each of which is to be evaluated in the
   (c) A request for reconsideration shall    Adjudicative Guidelines Approved by
                                                                                                   context of the whole person concept, as
be submitted in writing to the Director,      the President in Accordance With the                 explained further below:
Office of Security Affairs, accompanied       Provisions of Executive Order 12968                     (1) GUIDELINE A: Allegiance to the United
by an affidavit setting forth in detail the   (The following guidelines, included in this          States;
                                              subpart for reference purposes only, are                (2) GUIDELINE B: Foreign influence;
new evidence or evidence of                                                                           (3) GUIDELINE C: Foreign preference;
rehabilitation or reformation. The            reproduced as provided to the DOE by the
                                              Security Policy Board. The President may                (4) GUIDELINE D: Sexual behavior;
Director, Office of Security Affairs, shall                                                           (5) GUIDELINE E: Personal conduct;
                                              change the guidelines without notice.)
decide and notify the individual as to                                                                (6) GUIDELINE F: Financial
whether the individual’s access               Adjudicative Guidelines for Determining              considerations;
authorization shall be reconsidered and,      Eligibility for Access to Classified                    (7) GUIDELINE G: Alcohol consumption;
if so, the method by which                    Information                                             (8) GUIDELINE H: Drug involvement;
reconsideration shall be accomplished.           1. Introduction. The following adjudicative          (9) GUIDELINE I: Emotional, mental, and
                                              guidelines are established for all U.S.              personality disorders;
   (d) Final decisions regarding access                                                               (10) GUIDELINE J: Criminal Conduct;
authorization eligibility in                  government civilian and military personnel,
                                              consultants, contractors, employees of                  (11) GUIDELINE K: Security violations;
reconsideration cases shall be made by                                                                (12) GUIDELINE L: Outside activities;
                                              contractors, licensees, certificate holders or
the Appeal Panel.                                                                                     (13) GUIDELINE M: Misuse of Information
                                              grantees and their employees and other
   18. Newly redesignated § 710.33 is         individuals who require access to classified         Technology Systems.
revised to read as follows:                                                                           (d) Although adverse information
                                              information. They apply to persons being
                                                                                                   concerning a single criterion may not be
§ 710.33   Terminations.                      considered for initial or continued eligibility
                                                                                                   sufficient for an unfavorable determination,
                                              for access to classified information, to
   If the individual is no longer an                                                               the individual may be disqualified if
                                              include sensitive compartmented
applicant for access authorization or no                                                           available information reflects a recent or
                                              information and special access programs and
                                                                                                   recurring pattern of questionable judgment,
longer requires access authorization, the     are to be used by government departments
                                                                                                   irresponsibility, or emotionally unstable
procedures of this subpart shall be           and agencies in all final clearance
                                                                                                   behavior. Notwithstanding, the whole person
terminated without a final decision as to     determinations.
                                                                                                   concept, pursuit of further investigation may
the individual’s access authorization            2. The Adjudicative Process. (a) The
                                                                                                   be terminated by an appropriate adjudicative
eligibility, unless a final decision has      adjudicative process is an examination of a          agency in the face of reliable, significant,
                                              sufficient period of a person’s life to make an      disqualifying, adverse information.
been rendered prior to the DOE being          affirmative determination that the person is
notified of the change in the                                                                         (e) When information of security concern
                                              eligible for a security clearance. Eligibility for   becomes known about an individual who is
individual’s pending access                   access to classified information is predicated       currently eligible for access to classified
authorization status.                         upon the individual meeting these personnel          information, the adjudicator should consider
   19. Newly redesignated § 710.35 is         security guidelines. The adjudicative process        whether the person:
revised to read as follows:                   is the careful weighing of a number of                  (1) Voluntarily reported the information;
                                              variables known as the whole person                     (2) was truthful and complete in
§ 710.35   Timeframes.                        concept. Available, reliable information             responding to questions;
   Statements of time established for         about the person, past and present, favorable           (3) sought assistance and followed
processing aspects of a case under this       and unfavorable, should be considered in             professional guidance, where appropriate;
subpart are the agency’s desired time         reaching a determination. In evaluating the             (4) resolved or appears likely to favorably
                                              relevance of an individual’s conduct, the            resolve the security concern;
frames in implementing the procedures
                                              adjudicator should consider the following               (5) has demonstrated positive changes in
set forth in this subpart. They shall have    factors:
no impact upon the final disposition of                                                            behavior and employment;
                                                 (1) The nature, extent, and seriousness of           (6) should have his or her access
an access authorization by a Manager,         the conduct;                                         temporarily suspended pending final
Hearing Officer, the Appeal Panel, or            (2) the circumstances surrounding the             adjudication of the information.
the Secretary, and shall confer no            conduct, to include knowledgeable                       (f) If after evaluating information of
procedural or substantive rights upon an      participation;                                       security concern, the adjudicator decides that
individual whose access authorization            (3) the frequency and recency of the              the information is not serious enough to
eligibility is being considered.              conduct;                                             warrant a recommendation of disapproval or
                                                 (4) the individual’s age and maturity at the      revocation of the security clearance, it may
   20. Section 710.36 is added to read as
                                              time of the conduct;                                 be appropriate to recommend approval with
follows:                                         (5) the voluntariness of participation;           a warning that future incidents of a similar
§ 710.36   Acting officials.                     (6) the presence or absence of                    nature may result in revocation of access.
                                              rehabilitation and other pertinent behavioral
  Except for the Secretary, the               changes;                                             Guideline A: Allegiance To The United
responsibilities and authorities                 (7) the motivation for the conduct;               States
conferred in this subpart may be                 (8) the potential for pressure, coercion,           3. The Concern. An individual must be of
exercised by persons who have been            exploitation, or duress; and                         unquestioned allegiance to the United States.
44442                Federal Register / Vol. 64, No. 157 / Monday, August 16, 1999 / Proposed Rules

The willingness to safeguard classified               (f) conduct which may make the individual          (d) individual has expressed a willingness
information is in doubt if there is any reason     vulnerable to coercion, exploitation, or            to renounce dual citizenship.
to suspect an individual’s allegiance to the       pressure by a foreign government;
                                                                                                       Guideline D: Sexual Behavior
United States.                                        (g) indications that representatives or
  4. Conditions that could raise a security        nationals from a foreign country are acting to         12. The Concern. Sexual behavior is a
concern and may be disqualifying include:          increase the vulnerability of the individual to     security concern if it involves a criminal
  (a) Involvement in any act of sabotage,          possible future exploitation, coercion or           offense, indicates a personality or emotional
espionage, treason, terrorism, sedition, or        pressure;                                           disorder, may subject the individual to
other act whose aim is to overthrow the               (h) a substantial financial interest in a        coercion, exploitation, or duress, or reflects
                                                   country, or in any foreign owned or operated        lack of judgment or discretion. (The
Government of the United States or alter the
                                                   business that could make the individual             adjudicator should also consider guidelines
form of government by unconstitutional
                                                   vulnerable to foreign influence.                    pertaining to criminal conduct (Guideline J)
means;
                                                      8. Conditions that could mitigate security       and emotional, mental, and personality
  (b) association or sympathy with persons                                                             disorders (Guideline I) in determining how to
who are attempting to commit, or who are           concerns include:
                                                      (a) A determination that the immediate           resolve the security concerns raised by sexual
committing, any of the above acts;                                                                     behavior.) Sexual orientation or preference
  (c) association or sympathy with persons or      family member(s) (spouse, father, mother,
                                                   sons, daughters, brothers, sisters), cohabitant,    may not be used as a basis for a disqualifying
organizations that advocate the overthrow of                                                           factor in determining a person’s eligibility for
the United States Government, or any state or      or associate(s) in question are not agents of
                                                   a foreign power or in a position to be              a security clearance.
subdivision, by force or violence or by other                                                             13. Conditions that could raise a security
unconstitutional means;                            exploited by a foreign power in a way that
                                                   could force the individual to choose between        concern and may be disqualifying include:
  (d) involvement in activities which                                                                     (a) Sexual behavior of a criminal nature,
unlawfully advocate or practice the                loyalty to the person(s) involved and the
                                                   United States;                                      whether or not the individual has been
commission of acts of force or violence to                                                             prosecuted;
prevent others from exercising their rights           (b) contacts with foreign citizens are the
                                                   result of official United States Government            (b) Compulsive or addictive sexual
under the Constitution or laws of the United                                                           behavior when the person is unable to stop
                                                   business;
States or of any state.                                                                                a pattern of self-destructive high-risk
                                                      (c) contact and correspondence with
  5. Conditions that could mitigate security                                                           behavior or that which is symptomatic of a
                                                   foreign citizens are casual and infrequent;
concerns include:                                                                                      personality disorder;
                                                      (d) the individual has promptly complied
  (a) The individual was unaware of the                                                                   (c) Sexual behavior that causes an
                                                   with existing agency requirements regarding
unlawful aims of the individual or                                                                     individual to be vulnerable to coercion,
                                                   the reporting of contacts, requests, or threats
organization and severed ties upon learning                                                            exploitation, or duress;
                                                   from persons or organizations from a foreign
of these;                                                                                                 (d) Sexual behavior of a public nature and/
                                                   country;
  (b) the individual’s involvement was only                                                            or that which reflects lack of discretion or
                                                      (e) foreign financial interests are minimal
with the lawful or humanitarian aspects of                                                             judgment.
                                                   and not sufficient to affect the individual’s
such an organization;                                                                                     14. Conditions that could mitigate security
                                                   security responsibilities.                          concerns include:
  (c) involvement in the above activities
occurred for only a short period of time and       Guideline C: Foreign Preference                        (a) The behavior occurred during or prior
was attributable to curiosity or academic                                                              to adolescence and there is no evidence of
                                                      9. The Concern. When an individual acts
interest;                                                                                              subsequent conduct of a similar nature;
                                                   in such a way as to indicate a preference for
  (d) the person has had no recent                                                                        (b) The behavior was not recent and there
                                                   a foreign country over the United States, then
involvement or association with such                                                                   is no evidence of subsequent conduct of a
                                                   he or she may be prone to provide
activities.                                                                                            similar nature;
                                                   information or make decisions that are
                                                                                                          (c) There is no other evidence of
Guideline B: Foreign Influence                     harmful to the interests of the United States.
                                                                                                       questionable judgment, irresponsibility, or
                                                      10. Conditions that could raise a security       emotional instability;
   6. The Concern. A security risk may exist       concern and may be disqualifying include:
when an individual’s immediate family,                                                                    (d) The behavior no longer serves as a basis
                                                      (a) The exercise of dual citizenship;            for coercion, exploitation, or duress.
including cohabitants and other persons to            (b) possession and/or use of a foreign
whom he or she may be bound by affection,          passport;                                           Guideline E: Personal Conduct
influence, or obligation are not citizens of the      (c) military service or a willingness to bear
United States or may be subject to duress.                                                               15. The Concern. Conduct involving
                                                   arms for a foreign country;                         questionable judgment, untrustworthiness,
These situations could create the potential           (d) accepting educational, medical, or other     unreliability, lack of candor, dishonesty, or
for foreign influence that could result in the     benefits, such as retirement and social             unwillingness to comply with rules and
compromise of classified information.              welfare, from a foreign country;                    regulations could indicate that the person
Contacts with citizens of other countries or          (e) residence in a foreign country to meet       may not properly safeguard classified
financial interests in other countries are also    citizenship requirements;                           information. The following will normally
relevant to security determinations if they           (f) using foreign citizenship to protect         result in an unfavorable clearance action or
make an individual potentially vulnerable to       financial or business interests in another          administrative termination of further
coercion, exploitation, or pressure.               country;                                            processing for clearance eligibility:
   7. Conditions that could raise a security          (g) seeking or holding political office in the     (a) Refusal to undergo or cooperate with
concern and may be disqualifying include:          foreign country;                                    required security processing, including
   (a) An immediate family member, or a               (h) voting in foreign elections; and             medical and psychological testing; or
person to whom the individual has close ties          (i) performing or attempting to perform            (b) Refusal to complete required security
of affection or obligation, is a citizen of, or    duties, or otherwise acting, so as to serve the     forms, releases, or provide full, frank and
resident or present in, a foreign country.         interests of another government in preference       truthful answers to lawful questions of
   (b) sharing living quarters with a person or    to the interests of the United States.              investigators, security officials or other
persons, regardless of their citizenship status,      11. Conditions that could mitigate security      official representatives in connection with a
if the potential for adverse foreign influence     concerns include:                                   personnel security or trustworthiness
or duress exists;                                     (a) Dual citizenship is based solely on          determination.
   (c) relatives, cohabitants, or associates who   parents’ citizenship or birth in a foreign            16. Conditions that could raise a security
are connected with any foreign country;            country;                                            concern and may be disqualifying also
   (d) failing to report, where required,             (b) indicators of possible foreign preference    include:
associations with foreign nationals;               (e.g., foreign military service) occurred before      (a) Reliable, unfavorable information
   (e) unauthorized association with a             obtaining United States citizenship;                provided by associates, employers,
suspected or known collaborator or employee           (c) activity is sanctioned by the United         coworkers, neighbors, and other
of a foreign intelligence service;                 States;                                             acquaintances;
                     Federal Register / Vol. 64, No. 157 / Monday, August 16, 1999 / Proposed Rules                                          44443

   (b) The deliberate omission, concealment,           (c) Inability or unwillingness to satisfy      credentialed medical professional or a
or falsification of relevant and material facts     debts;                                            licensed clinical social worker who is a staff
from any personnel security questionnaire,             (d) Unexplained affluence;                     member of a recognized alcohol treatment
personal history statement, or similar form            (e) Financial problems that are linked to      program.
used to conduct investigations, determine           gambling, drug abuse, alcoholism, or other
employment qualifications, award benefits or        issues of security concern.                       Guideline H: Drug Involvement
status, determine security clearance                   20. Conditions that could mitigate security       24. The Concern.
eligibility or trustworthiness, or award            concerns include:                                    (a) Improper or illegal involvement with
fiduciary responsibilities;                            (a) The behavior was not recent;               drugs raises questions regarding an
   (c) Deliberately providing false or                 (b) It was an isolated incident;               individual’s willingness or ability to protect
misleading information concerning relevant             (c) The conditions that resulted in the        classified information. Drug abuse or
and material matters to an investigator,            behavior were largely beyond the person’s         dependence may impair social or
security official, competent medical                control (e.g., loss of employment, a business     occupational functioning, increasing the risk
authority, or other official representative in      downturn, unexpected medical emergency,           of an unauthorized disclosure of classified
connection with a personnel security or             or a death, divorce or separation);               information.
trustworthiness determination.                         (d) The person has received or is receiving       (b) Drugs are defined as mood and behavior
   (d) Personal conduct or concealment of           counseling for the problem and there are          altering substances and include: (1) drugs,
information that may increase an individual’s       clear indications that the problem is being       materials, and other chemical compounds
vulnerability to coercion, exploitation, or         resolved or is under control;                     identified and listed in the Controlled
duress, such as engaging in activities which,          (e) The affluence resulted from a legal        Substances Act of 1970, as amended (e.g.,
if known, may affect the person’s personal,         source; and                                       marijuana or cannabis, depressants,
professional, or community standing or                 (f) The individual initiated a good-faith      narcotics, stimulants, and hallucinogens),
render the person susceptible to blackmail;         effort to repay overdue creditors or otherwise    and (2) inhalants and other similar
   (e) A pattern of dishonesty or rule              resolve debts.                                    substances.
violations, including violation of any written                                                           (c) Drug abuse is the illegal use of a drug
or recorded agreement made between the              Guideline G: Alcohol Consumption
                                                                                                      or use of a legal drug in a manner that
individual and the agency;                            21. The Concern. Excessive alcohol              deviates from approved medical direction.
   (f) Association with persons involved in         consumption often leads to the exercise of           25. Conditions that could raise a security
criminal activity.                                  questionable judgment, unreliability, failure     concern and may be disqualifying include:
   17. Conditions that could mitigate security      to control impulses, and increases the risk of       (a) Any drug abuse (see above definition);
concerns include:                                   unauthorized disclosure of classified                (b) Illegal drug possession, including
   (a) The information was unsubstantiated or       information due to carelessness.                  cultivation, processing, manufacture,
not pertinent to a determination of judgment,         22. Conditions that could raise a security      purchase, sale, or distribution;
trustworthiness, or reliability;                    concern and may be disqualifying include:            (c) Diagnosis by a credentialed medical
   (b) The falsification was an isolated              (a) Alcohol-related incidents away from         professional (e.g., physician, clinical
incident, was not recent, and the individual        work, such as driving while under the             psychologist, or psychiatrist) of drug abuse or
has subsequently provided correct                   influence, fighting, child or spouse abuse, or    drug dependence;
information voluntarily;                            other criminal incidents related to alcohol          (d) Evaluation of drug abuse or drug
   (c) The individual made prompt, good-faith       use;                                              dependence by a licensed clinical social
efforts to correct the falsification before being     (b) Alcohol-related incidents at work, such     worker who is a staff member of a recognized
confronted with the facts;                          as reporting for work or duty in an               drug treatment program;
   (d) Omission of material facts was caused        intoxicated or impaired condition, or                (e) Failure to successfully complete a drug
or significantly contributed to by improper or      drinking on the job;                              treatment program prescribed by a
inadequate advice of authorized personnel,            (c) Diagnosis by a credentialed medical         credentialed medical professional. Recent
and the previously omitted information was          professional (e.g., physician, clinical           drug involvement, especially following the
promptly and fully provided;                        psychologist, or psychiatrist) of alcohol abuse   granting of a security clearance, or an
   (e) The individual has taken positive steps      or alcohol dependence;                            expressed intent not to discontinue use, will
to significantly reduce or eliminate                  (d) Evaluation of alcohol abuse or alcohol      almost invariably result in an unfavorable
vulnerability to coercion, exploitation, or         dependence by a licensed clinical social          determination.
duress;                                             worker who is a staff member of a recognized         26. Conditions that could mitigate security
   (f) A refusal to cooperate was based on          alcohol treatment program;                        concerns include:
advice from legal counsel or other officials          (e) Habitual or binge consumption of               (a) The drug involvement was not recent;
that the individual was not required to             alcohol to the point of impaired judgment;           (b) The drug involvement was an isolated
comply with security processing                       (f) Consumption of alcohol, subsequent to       or aberrational event;
requirements and, upon being made aware of          a diagnosis of alcoholism by a credentialed          (c) A demonstrated intent not to abuse any
the requirement, fully and truthfully               medical professional and following                drugs in the future;
provided the requested information;                 completion of an alcohol rehabilitation              (d) Satisfactory completion of a prescribed
   (g) Association with persons involved in         program.                                          drug treatment program, including
criminal activities has ceased.                       23. Conditions that could mitigate security     rehabilitation and aftercare requirements,
                                                    concerns include:                                 without recurrence of abuse, and a favorable
Guideline F: Financial Considerations                 (a) The alcohol related incidents do not        prognosis by a credentialed medical
   18. The Concern. An individual who is            indicate a pattern;                               professional.
financially overextended is at risk of having         (b) The problem occurred a number of
to engage in illegal acts to generate funds.        years ago and there is no indication of a         Guideline I: Emotional, Mental, and
Unexplained affluence is often linked to            recent problem;                                   Personality Disorders
proceeds from financially profitable criminal         (c) Positive changes in behavior supportive       27. The Concern. Emotional, mental, and
acts.                                               of sobriety;                                      personality disorders can cause a significant
   19. Conditions that could raise a security         (d) Following diagnosis of alcohol abuse or     defect in an individual’s psychological,
concern and may be disqualifying include:           alcohol dependence, the individual has            social and occupational functioning. These
   (a) A history of not meeting financial           successfully completed inpatient or               disorders are of security concern because
obligations;                                        outpatient rehabilitation along with aftercare    they may indicate a defect in judgment,
   (b) Deceptive or illegal financial practices     requirements, participated frequently in          reliability, or stability. A credentialed mental
such as embezzlement, employee theft, check         meetings of Alcoholics Anonymous or a             health professional (e.g., clinical psychologist
fraud, income tax evasion, expense account          similar organization, has abstained from          or psychiatrist), employed by, acceptable to
fraud, filing deceptive loan statements, and        alcohol for a period of at least 12 months,       or approved by the government, should be
other intentional financial breaches of trust;      and received a favorable prognosis by a           utilized in evaluating potentially
44444               Federal Register / Vol. 64, No. 157 / Monday, August 16, 1999 / Proposed Rules

disqualifying and mitigating information            (a) Were inadvertent;                            (c) The introduction or removal of media
fully and properly, and particularly for            (b) Were isolated or infrequent;               was authorized;
consultation with the individual’s mental           (c) Were due to improper or inadequate           (d) The misuse was an isolated event;
health care provider.                            training;                                           (e) The misuse was followed by a prompt,
   28. Conditions that could raise a security       (d) Demonstrate a positive attitude towards    good faith effort to correct the situation.
concern and may be disqualifying include:        the discharge of security responsibilities.       [FR Doc. 99–20841 Filed 8–13–99; 8:45 am]
   (a) An opinion by a credentialed mental
health professional that the individual has a    Guideline L: Outside Activities                   BILLING CODE 6450–01–P

condition or treatment that may indicate a         36. The Concern. Involvement in certain
defect in judgment, reliability, or stability;   types of outside employment or activities is
   (b) Information that suggests that an         of security concern if it poses a conflict with   FEDERAL HOUSING FINANCE BOARD
individual has failed to follow appropriate      an individual’s security responsibilities and
medical advice relating to treatment of a        could create an increased risk of                 12 CFR Part 935
condition, e.g., failure to take prescribed      unauthorized disclosure of classified
medication;                                      information.                                      [No. 99–41]
   (c) A pattern of high-risk, irresponsible,      37. Conditions that could raise a security      RIN 3069–AA80
aggressive, anti-social or emotionally           concern and may be disqualifying include
unstable behavior;                               any service, whether compensated,                 Advance Participations; Sales of
   (d) Information that suggests that the        volunteer, or employment with:
individual’s current behavior indicates a                                                          Whole Advances
                                                   (a) A foreign country;
defect in his or her judgment or reliability.      (b) Any foreign national;                       AGENCY:   Federal Housing Finance
   29. Conditions that could mitigate security     (c) A representative of any foreign interest;   Board.
clearance concerns include:                        (d) Any foreign, domestic, or international
   (a) There is no indication of a current                                                         ACTION:   Proposed rule.
                                                 organization or person engaged in analysis,
problem;                                         discussion, or publication of material on
   (b) Recent opinion by a credentialed                                                            SUMMARY:    The Federal Housing Finance
                                                 intelligence, defense, foreign affairs, or        Board (Finance Board) is proposing to
mental health professional that an               protected technology.
individual’s previous emotional, mental, or        38. Conditions that could mitigate security
                                                                                                   amend its regulation governing Federal
personality disorder is cured, under control     concerns include:                                 Home Loan Bank (Bank) advances to
or in remission and has a low probability of       (a) Evaluation of the outside employment        approve the sale of whole advances
recurrence or exacerbation;                      or activity indicates that it does not pose a     between Banks under certain limited
   (c) The past emotional instability was a      conflict with an individual’s security            circumstances. The amendment is
temporary condition (e.g., one caused by a       responsibilities;
death, illness, or marital breakup), the
                                                                                                   consistent with the Finance Board’s
                                                   (b) The individual terminates employment        efforts to devolve ministerial and
situation has been resolved, and the
                                                 or discontinues the activity upon being           routine business matters to the Federal
individual is no longer emotionally unstable.
                                                 notified that it is in conflict with his or her   Home Loan Banks.
Guideline J: Criminal Conduct                    security responsibilities.
                                                                                                   DATES: The Finance Board will accept
  30. The Concern. A history or pattern of       Guideline M: Misuse of Information                comments in writing on or before
criminal activity creates a doubt about a        Technology Systems
person’s judgment, reliability and
                                                                                                   September 15, 1999.
                                                   39. The Concern. Noncompliance with             ADDRESSES: Send comments to Elaine L.
trustworthiness.
                                                 rules, procedures, guidelines, or regulations     Baker, Secretary to the Board, by
  31. Conditions that could raise a security
                                                 pertaining to information technology systems
concern and may be disqualifying include:                                                          electronic mail at bakere@fhfb.gov, or by
                                                 may raise security concerns about an
  (a) Allegations or admissions of criminal                                                        regular mail at the Federal Housing
conduct, regardless of whether the person        individual’s trustworthiness, willingness,
                                                 and ability to properly protect classified        Finance Board, 1777 F Street, N.W.,
was formally charged;
                                                 systems, networks, and information.               Washington, DC 20006. Comments will
  (b) A single serious crime or multiple
lesser offenses.                                 Information Technology Systems include all        be available for public inspection at this
  32. Conditions that could mitigate security    related equipment used for the                    address.
concerns include:                                communication, transmission, processing,          FOR FURTHER INFORMATION CONTACT:
  (a) The criminal behavior was not recent;      manipulation, and storage of classified or
                                                 sensitive information.
                                                                                                   Jonathan Curtis, Senior Financial
  (b) The crime was an isolated incident;                                                          Analyst, Office of Policy, Research and
  (c) The person was pressured or coerced          40. Conditions that could raise a security
                                                 concern and may be disqualifying include:         Analysis, by telephone (202) 408–2866
into committing the act and those pressures
are no longer present in that person’s life;       (a) Illegal or unauthorized entry into any      or by electronic mail at curtisj@fhfb.gov;
  (d) The person did not voluntarily commit      information technology system;                    Jane S. Converse, Attorney-Advisor,
the act and/or the factors leading to the          (b) Illegal or unauthorized modification        Office of General Counsel, by telephone
violation are not likely to recur;               destruction, manipulation or denial of access     at (202) 408–2976 or by electronic mail
  (e) Acquittal;                                 to information residing on an information         at conversej@fhfb.gov; or Neil R.
  (f) There is clear evidence of successful      technology system;                                Crowley, Deputy General Counsel,
rehabilitation.                                    (c) Removal (or use) of hardware, software,
                                                 or media from any information technology
                                                                                                   Office of General Counsel, by telephone
Guideline K: Security Violations                 system without authorization, when                (202) 408–2990 or electronic mail at
  33. The Concern. Noncompliance with            specifically prohibited by rules, procedures,     crowleyn@fhfb.gov, Federal Housing
security regulations raises doubt about an       guidelines or regulations;                        Finance Board, 1777 F Street, N.W.,
individual’s trustworthiness, willingness,         (d) Introduction of hardware, software, or      Washington, D.C. 20006.
and ability to safeguard classified              media into any information technology             SUPPLEMENTARY INFORMATION:
information.                                     system without authorization, when
  34. Conditions that could raise a security     specifically prohibited by rules, procedures,     I. Statutory and Regulatory Background
concern and may be disqualifying include:        guidelines or regulations.                          Section 10(d) of the Federal Home
  (a) Unauthorized disclosure of classified        41. Conditions that could mitigate security
information;                                     concerns include:
                                                                                                   Loan Bank Act (Bank Act) authorizes
  (b) Violations that are deliberate or            (a) The misuse was not recent or                any Bank to sell whole advances, or
multiple or due to negligence.                   significant;                                      participations in advances, to any other
  35. Conditions that could mitigate security      (b) The conduct was unintentional or            Bank, subject to Finance Board
concerns include actions that:                   inadvertent;                                      approval. See 12 U.S.C. 1430(d).
                   Federal Register / Vol. 64, No. 157 / Monday, August 16, 1999 / Proposed Rules                                44445

   The Finance Board has approved the         the number of sale and purchase               pursuant to Part 960 of the Finance
sale and purchase of participation            transactions will continue to increase.       Board regulations, 12 CFR Part 960, may
interests in Bank advances through the           Therefore, the Finance Board is            also be approved pursuant to the
adoption of § 935.16. See 12 CFR              proposing to approve by regulation any        regulation, provided that the written
935.16. The Finance Board has not             sale and purchase of advances between         agreement includes an additional
similarly approved the sale and               Banks that meets the conditions set           provision that all parties to the sale
purchase of whole advances between            forth in the regulation, which are much       agree to comply with the requirements
Banks, which has meant that such              the same conditions as those that are         of Part 960, including the project
transactions still must be submitted to       currently imposed during case-by-case         monitoring requirements. The Finance
the Finance Board for approval.               review. Any other advances transfers          Board believes that the Banks involved
   Requests for Finance Board approval        still must be submitted to the Finance        in the transaction are best able to assign
of the sales of whole advances between        Board for approval.                           responsibility for AHP compliance, but
Banks have resulted from the merger or        II. Analysis of the Proposed Rule             requests comment on whether the
consolidation of members in different                                                       regulation should be revised to require
                                                 For the reasons discussed above, the       a particular Bank assume that
Bank districts, and the resultant
                                              Finance Board proposes to amend               responsibility.
cancellation of the charter and
                                              § 935.16 to approve the sale of advances        The proposal would add a new
membership of the non-surviving
                                              between Banks under certain                   paragraph (c) which would make it clear
member or members. Consequently, the
                                              conditions. In addition, the section will     that sales and purchases of advances
surviving institution, which is a
                                              be retitled and the current provisions        that do not meet the requirements for
member of one Bank, typically has
                                              regarding participations shall be             approval pursuant to the regulation
advances outstanding from two Banks.
                                              redesignated as a separate paragraph.         must be approved by the Finance Board.
The Bank to which the disappearing               A new paragraph (b) will be added to
member formerly belonged can retain                                                           In addition, the Finance Board
                                              set forth specific criteria which would       requests comment on whether there are
the advance until it matures. The             approve the sale and purchase of
member, however, usually prefers the                                                        other circumstances to which the
                                              advances between Banks that occur as a        approval by regulation could be
advance to be sold to its current Bank,       consequence of a merger or other
because as long as the advance remains                                                      extended appropriately.
                                              business combination of two or more
outstanding with the other Bank, the          members of different Banks, or where a        III. Regulatory Flexibility Act
member must maintain collateral and           member has become a member of                    This proposed rule is not expected to
stock at both Banks. While not required       another Bank, such as through a               have a significant economic impact on
to call the advances, the Bank of the         relocation of its principal place of          a substantial number of small entities
former member usually is willing to sell      business. Although the requests               within the meaning of the Regulatory
them to the other Bank. It is in this         received to date have arisen as a result      Flexibility Act, 5 U.S.C. 601, et. seq.
context that all recent requests for          of mergers, it is possible for a member
Finance Board approval have occurred.         to redesignate, its principal place of        IV. Paperwork Reduction Act
Such sales and purchases of advances          business to another district in certain         This proposed rule does not contain
have involved no safety and soundness         circumstances. See 12 CFR 933.18(c). In       any collections of information pursuant
issues, and the Banks that have               that case, the issues about a transfer of     to the Paperwork Reduction Act of 1995.
participated in these transactions have       the outstanding advances would be             See 44 U.S.C. 3501, et seq. Therefore,
negotiated the terms of the sales without     much the same as those in a merger.           the Finance Board has not submitted
Finance Board involvement.                    Accordingly, the Finance Board requests       any information to the Office of
   Finance Board approval of such sale        comment on whether the regulation             Management and Budget for review.
and purchase of whole advances has            should apply to such transfers of Bank
been granted routinely, typically                                                           List of Subjects in 12 CFR Part 935
                                              membership and, if so, whether any
through a Chairman’s Order. In                conditions other than those that apply          Credit, Federal home loan banks,
processing these requests, Finance            in a merger context should be included.       Reporting and recordkeeping
Board staff has required that Banks              Paragraph (b) also sets forth the          requirements.
provide certain information as a              following requirements that the sale and
condition of approval. The information        purchase transaction must meet in order       Accordingly, the Finance Board hereby
required includes the submission of a         for it to be approved by the Finance          amends 12 CFR PART 935 as follows:
Sale, Purchase and Consent Agreement,         Board pursuant to the regulation: the         PART 935–ADVANCES
or similar document, signed by both           sale and purchase of the advance(s)
Banks and the acquiring member. In            must be conducted pursuant to a written         1. The authority citation for part 935
addition, the Banks must submit a             agreement between the Banks that              continues to read as follows:
listing, identification, and description of   identifies the advance(s) to be sold and        Authority: 12 U.S.C. 1422a(a)(3),
the advance or advances to be sold and        sets forth the terms and conditions of        1422b(a)(1), 1426, 1429, 1430, 1430b, 1431.
a short history recounting the merger or      the sale and purchase; the board of             2. Amend § 935.16 by revising the
other consolidation activity.                 directors of each Bank must approve the       section heading designating the existing
   Prior to this year, the Finance Board      sale and purchase and the terms of the        text as paragraph (a) and adding the
would receive, on average, one or two         agreement; the advance(s) must remain         heading Participations, and adding new
advance sale and purchase requests per        fully secured by eligible collateral at all   paragraphs (b) and (c) to read as follows:
year. However, due to the increasing          times; the member of the Bank to which
consolidation of the financial services       the advance(s) is being sold must             § 935.16 Advance participations; sales of
industry, such requests have increased.       purchase not less than the minimum            whole advances.
Four were processed during the first six      amount of stock of the Bank required to         (a) Participations. * * *
months of this year. The Finance Board        support the advance.                            (b) Sales of whole advances. A Bank
expects to receive additional requests           Sales and purchases of Affordable          may sell a whole advance to another
before the year’s end, and is certain that    Housing Program (AHP) advances made           Bank, and such other Bank may
44446                Federal Register / Vol. 64, No. 157 / Monday, August 16, 1999 / Proposed Rules

purchase a whole advance, if the             SUMMARY:    This document proposes the          Comments are specifically invited on
following conditions are met:                supersedure of an existing airworthiness      the overall regulatory, economic,
  (1) The member to which the                directive (AD), applicable to certain         environmental, and energy aspects of
advance(s) was made originally has           Pratt & Whitney JT9D series turbofan          the proposed rule. All comments
ceased to exist as a result of a merger or   engines, that currently requires              submitted will be available, both before
other business combination with and          revisions to the Airworthiness                and after the closing date for comments,
into a member of the purchasing Bank,        Limitations Section (ALS) of the              in the Rules Docket for examination by
or has become a member of the                manufacturer’s Instructions for               interested persons. A report
purchasing Bank;                             Continued Airworthiness (ICA) to              summarizing each FAA-public contact
  (2) The sale and purchase of the           include required enhanced inspection of       concerned with the substance of this
advance(s) is done pursuant to a written     selected critical life-limited parts at       proposal will be filed in the Rules
agreement between the Banks that             each piece-part exposure. This action         Docket.
identifies the advance(s) to be sold and     would add additional critical life-             Commenters wishing the FAA to
sets forth the terms and conditions of       limited parts for enhanced inspection.        acknowledge receipt of their comments
the sale and purchase;                       This proposal is prompted by additional       submitted in response to this notice
  (3) The board of directors of each         focused inspection procedures for other       must submit a self-addressed, stamped
Bank has approved the sale and               critical life-limited rotating engine parts   postcard on which the following
purchase and the terms of the agreement      that have been developed by the               statement is made: ‘‘Comments to
described in paragraph (b)(2) of this        manufacturer. The actions specified by        Docket Number 98–ANE–47–AD.’’ The
section;                                     this proposed AD are intended to              postcard will be date stamped and
  (4) The advance(s) remains fully                                                         returned to the commenter.
                                             prevent critical life-limited rotating
secured by eligible collateral at all
                                             engine part failure, which could result       Availability of NPRMs
times;
  (5) The member of the purchasing           in an uncontained engine failure and
                                             damage to the airplane.                         Any person may obtain a copy of this
Bank maintains not less than the                                                           NPRM by submitting a request to the
minimum amount of stock of that Bank         DATES: Comments must be received by
                                                                                           FAA, New England Region, Office of the
required to support the advance; and         September 15, 1999.                           Regional Counsel, Attention: Rules
  (6) If the advance(s) being sold was       ADDRESSES: Submit comments in                 Docket No. 98–ANE–47–AD, 12 New
made pursuant to part 960 of this            triplicate to the Federal Aviation            England Executive Park, Burlington, MA
chapter as an Affordable Housing             Administration (FAA), New England             01803–5299.
Program advance, the agreement               Region, Office of the Regional Counsel,
described in paragraph (b)(2) of this        Attention: Rules Docket No. 98–ANE–           Discussion
section must provide that the parties        47–AD, 12 New England Executive Park,            On April 13, 1999, the Federal
will ensure that the advance remains in      Burlington, MA 01803–5299. Comments           Aviation Administration (FAA) issued
compliance with all of the requirements      may also be sent via the Internet using       airworthiness directive (AD) 99–08–12,
of part 960 of this chapter, including       the following address: ‘‘9-ane-               Amendment 39–11118 (64 FR 17954,
monitoring requirements, after the sale.     adcomment@faa.gov’’. Comments sent            April 13, 1999), to require revisions to
  (c) Finance Board approval. Any            via the Internet must contain the docket      the Time Limits section in the Engine
proposed sale and purchase of an             number in the subject line. Comments          Manual (EM) for certain Pratt & Whitney
advance that does not meet the               may be inspected at this location             (PW) JT9D series turbofan engines to
requirements of paragraph (b) of this        between 8:00 a.m. and 4:30 p.m.,              include required enhanced inspection of
section must be approved by the              Monday through Friday, except Federal         selected critical life-limited parts at
Finance Board pursuant to section 10(d)      holidays.                                     each piece-part exposure.
of the Bank Act.                                                                              Since the issuance of that AD,
                                             FOR FURTHER INFORMATION CONTACT:
  Dated: August 6, 1999.                                                                   additional focused inspection
                                             Wego Wang, Aerospace Engineer,
  By the Board of Directors of the Federal                                                 procedures for other critical life-limited
                                             Engine Certification Office, FAA, Engine
Housing Finance Board.                                                                     rotating engine parts have been
                                             and Propeller Directorate, 12 New
Bruce A. Morrison,                                                                         developed by PW.
                                             England Executive Park, Burlington, MA
Chairman.                                                                                     Since an unsafe condition has been
                                             01803–5299; telephone (781) 238–7134,
[FR Doc. 99–21059 Filed 8–13–99; 8:45 am]                                                  identified that is likely to exist or
                                             fax (781) 238–7199.
BILLING CODE 6725–01–P
                                                                                           develop on other products of this same
                                             SUPPLEMENTARY INFORMATION:                    type design, the proposed AD would
                                             Comments Invited                              supersede AD 99–508–512 to require the
                                                                                           additional critical life-limited rotating
DEPARTMENT OF TRANSPORTATION                   Interested persons are invited to           engine parts to be subject to focused
Federal Aviation Administration              participate in the making of the              inspection at each piece-part
                                             proposed rule by submitting such              opportunity.
14 CFR Part 39                               written data, views, or arguments as             The FAA estimates that 1,372 engines
                                             they may desire. Communications               installed on airplanes of US registry
[Docket No. 98–ANE–47–AD]                    should identify the Rules Docket              would be affected by this proposed AD,
RIN 2120–AA64                                number and be submitted in triplicate to      that it would take approximately 1 work
                                             the address specified above. All              hour per engine to accomplish the
Airworthiness Directives; Pratt &            communications received on or before          proposed actions. The average labor rate
Whitney JT9D Series Turbofan Engines         the closing date for comments, specified      is $60 per work hour. Based on these
AGENCY: Federal Aviation                     above, will be considered before taking       figures the total cost impact of the
Administration, DOT.                         action on the proposed rule. The              proposed AD on U.S. operators is
                                             proposals contained in this notice may        estimated to be $82,320.
ACTION: Notice of proposed rulemaking
                                             be changed in light of the comments              The regulations proposed herein
(NPRM).
                                             received.                                     would not have substantial direct effects
                           Federal Register / Vol. 64, No. 157 / Monday, August 16, 1999 / Proposed Rules                                                                      44447

on the States, on the relationship                                 The Proposed Amendment                                          preceding applicability provision, regardless
between the national government and                                                                                                of whether it has been modified, altered, or
                                                                     Accordingly, pursuant to the                                  repaired in the area subject to the
the States, or on the distribution of                              authority delegated to me by the
power and responsibilities among the                                                                                               requirements of this AD. For engines that
                                                                   Administrator, the Federal Aviation                             have been modified, altered, or repaired so
various levels of government. Therefore,                           Administration proposes to amend part                           that the performance of the requirements of
in accordance with Executive Order                                 39 of the Federal Aviation Regulations                          this AD is affected, the owner/operator must
12612, it is determined that this                                  (14 CFR part 39) as follows:                                    request approval for an alternative method of
proposal would not have sufficient                                                                                                 compliance in accordance with paragraph (c)
federalism implications to warrant the                             PART 39—AIRWORTHINESS                                           of this AD. The request should include an
preparation of a Federalism Assessment.                            DIRECTIVES                                                      assessment of the effect of the modification,
                                                                                                                                   alteration, or repair on the unsafe condition
   For the reasons discussed above, I                                1. The authority citation for part 39                         addressed by this AD; and, if the unsafe
certify that this proposed regulation (1)                          continues to read as follows:                                   condition has not been eliminated, the
is not a ‘‘significant regulatory action’’                            Authority: 49 U.S.C. 106(g), 40113, 44701.                   request should include specific proposed
under Executive Order 12866; (2) is not                                                                                            actions to address it.
a ‘‘significant rule’’ under the DOT                               § 39.13      [Amended]                                             Compliance: Required as indicated, unless
Regulatory Policies and Procedures (44                               2. Section 39.13 is amended by                                accomplished previously.
FR 11034, February 26, 1979); and (3) if                           removing Amendment 39–11118 (63 FR                                 To prevent critical life-limited rotating
promulgated, will not have a significant                           40220, April 13, 1999), and by adding                           engine part failure, which could result in an
economic impact, positive or negative,                             a new airworthiness directive, to read as                       uncontained engine failure and damage to
on a substantial number of small entities                          follows:                                                        the airplane, accomplish the following:
under the criteria of the Regulatory                                                                                                  (a) Within the next 30 days after the
                                                                   Pratt & Whitney: Docket No. 98–ANE–47–                          effective date of this AD, revise the
Flexibility Act. A copy of the draft                                    AD. Supersedes AD 99–08–12,                                manufacturer’s Airworthiness Limitations
regulatory evaluation prepared for this                                 Amendment 39–11118.                                        Section (ALS) of the Instructions for
action is contained in the Rules Docket.                              Applicability: Pratt & Whitney (PW) JT9D–                    Continued Airworthiness (ICA), and for air
A copy of it may be obtained by                                    7, –7A, –7H, –7AH, –7F, –7J, –20, –20J, –59A,                   carrier operations revise the approved
contacting the Rules Docket at the                                 –70A, –7Q, –7Q3, –7R4D, –7R4D1, –7R4E,                          continuous airworthiness maintenance
location provided under the caption                                –7R4E1, –7R4E4, –7R4G2, and –7R4H1 series                       program, by adding the following:
ADDRESSES.                                                         turbofan engines, installed on but not limited
                                                                   to Boeing 747 and 767 series, McDonnell                         ‘‘Mandatory Inspections’’
List of Subjects in 14 CFR Part 39                                 Douglas DC–10 series, and Airbus Industrie                        (1) Perform inspections of the following
                                                                   A300 and A310 airplanes.                                        parts at each piecepart opportunity in
  Air transportation, Aircraft, Aviation                              Note 1: This airworthiness directive (AD)                    accordance with the instructions provided in
safety, Safety.                                                    applies to each engine identified in the                        the applicable manual provisions:

             Engine model (manual P/N)                                                    Part description                                Part No.               FPI per inspection

7/7A/7AH/7F, 7H/7J/20/20J (646028*) ...............                 Fan Hub (Assy. P/N 648621 and 665321) ........                              648501       72–31–04, Inspection –02.
7/7A/7AH/7F, 7H/7J/20/20J (646028*) ...............                 Fan Hub (Assy. P/N 665321, 719127, and                                      666101       72–31–04, Inspection –02.
                                                                      778621).
7/7A/7AH/7F, 7H/7J/20/20J (646028*) ...............                 Fan Hub (Assy. P/N 678541,726641, and                                       690501       72–31–04, Inspection –02.
                                                                      778631).
7/7A/7AH/7F, 7H/7J/20/20J (646028*) ...............                 Fan Hub (Assy. P/N 726941) ............................                     734901       72–31–04, Inspection –02.
59A/70A (754459) ..............................................     Fan Hub (Assy. P/N 732721, and 804221) .......                              745401       72–31–00, Heavy Mainte-
                                                                                                                                                               nance Check.
7Q/7Q3 (777210) ...............................................     Fan Hub (Assy. P/N 732721, and 804221) .......                           745401          72–31–00, Inspection –03.
7R4’s (785059, 785058, 789328) ......................               Fan Hub (Assy. P/N 5001331–01) ....................                  5001701–01          72–31–00, Inspection –03.
  *P/N 770407 and 770408 are customized versions of P/N 646028 engine manual.

               Engine model                                         Part description                               FPI per Inspection                              FPI per SPOP

59A/70A (754459) .............................     All   HPT,     1st disks .............................   72–51–02,   HMC–01 .........................     72–51–00, HMC–03.
                                                   All   HPT,     2nd Disks ...........................     72–51–02,   HCM–02 .........................     72–51–00 HMC–03.
7Q/7Q3 (777210) ..............................     All   HPT,     1st Disks ............................    72–51–06,   Insp–01 ..........................   72–51–00, Insp–03.
                                                   All   HPT,     2nd Disks ...........................     72–51–07,   Insp–01 ..........................   72–51–00, Insp–03.
7/7A/7AH/7F 7H/7J/20/20J (646028*)                 All   HPT,     1st Disks ............................    72–51–02,   Insp–01 ..........................   72–51–00, Insp–03.
                                                   All   HPT,     2nd Disks ...........................     72–51–02,   Insp–03 ..........................   72–51–00, Insp–03.
7R4’s   (785058,            785059,        and     All   HPT,     1st Disks ............................    72–51–06,   Insp/Chk–01 ...................      72–51–00, Insp/Chk–03.
  789328).                                         All   HPT,     2nd Disks ...........................     72–51–07,   Insp/Chk–01 ...................      72–51–00, Insp/Chk–03.
  *P/N 770407 and 770408 are customized versions of P/N 646028 engine manual.


  (2) For the purposes of these mandatory                          part was not damaged or related to the cause                      (c) An alternative method of compliance or
inspections, piece-part opportunity means:                         for its removal from the engine.’’                              adjustment of the compliance time that
  (i) The part is considered completely                              (b) Except as provided in paragraph (c) of                    provides an acceptable level of safety may be
disassembled when accomplished in                                  this AD, and notwithstanding contrary                           used if approved by the Engine Certification
accordance with the disassembly instructions                       provisions in section 43.16 of the Federal                      Office (ECO). Operators shall submit their
in the manufacturer’s engine manual to either                      Aviation Regulations (14 CFR 43.16), these                      requests through an appropriate FAA
part number listed in the table above; and
                                                                   mandatory inspections shall be performed                        Principal Maintenance Inspector (PMI), who
  (ii) The part has accumulated more than
100 cycles in service since the last piece-part                    only in accordance with the ALS of the                          may add comments and then send it to the
opportunity inspection, provided that the                          manufacturer’s ICA.                                             ECO.
44448                Federal Register / Vol. 64, No. 157 / Monday, August 16, 1999 / Proposed Rules

   Note 2: Information concerning the            ACTION: Proposed rule; public comment         47438–9517, Telephone: (812) 665–
existence of approved alternative methods of     period and opportunity for public             2207.
compliance with this airworthiness directive,    hearing.                                    FOR FURTHER INFORMATION CONTACT:
if any, may be obtained from the ECO.
                                                                                             Andrew R. Gilmore, Director,
   (d) Special flight permits may be issued in   SUMMARY:    The Office of Surface Mining    Indianapolis Field Office. Telephone:
accordance with sections 21.197 and 21.199       Reclamation and Enforcement (OSM) is        (317) 226–6700. Internet:
of the Federal Aviation Regulations (14 CFR      announcing receipt of a proposed
21.197 and 21.199) to operate the airplane to                                                INFOMAIL@indgw.osmre.gov.
                                                 amendment to the Indiana regulatory
a location where the requirements of this AD                                                 SUPPLEMENTARY INFORMATION:
                                                 program (Indiana program) under the
can be accomplished.
                                                 Surface Mining Control and                  I. Background on the Indiana Program
   (e) FAA-certificated air carriers that have
an approved continuous airworthiness             Reclamation Act of 1977 (SMCRA).               On July 29, 1982, the Secretary of the
maintenance program in accordance with the       Indiana proposes revisions to rules         Interior conditionally approved the
record keeping requirement of § 121.369 (c)      concerning revegetation standards for       Indiana program. You can find
of the Federal Aviation Regulations [14 CFR      success for nonprime farmland for           background information on the Indiana
121.369 (c)] of this chapter must maintain       surface and underground coal mining         program, including the Secretary’s
records of the mandatory inspections that        and reclamation operations under IC         findings, the disposition of comments,
result from revising the Time Limits section     14–34. Indiana intends to revise its
of the Instructions for Continuous
                                                                                             and the conditions of approval in the
                                                 program to be consistent with the           July 26, 1982, Federal Register (47 FR
Airworthiness (ICA) and the air carrier’s
continuous airworthiness program.
                                                 corresponding Federal regulations.          32107). You can find later actions on the
Alternately, certificated air carriers may          This document gives the times and        Indiana program at 30 CFR 914.10,
establish an approved system of record           locations that the Indiana program and      914.15, and 914.16.
retention that provides a method for             amendment to that program are
preservation and retrieval of the maintenance    available for your inspection, the          II. Description of the Proposed
records that include the inspections resulting   comment period during which you may         Amendment
from this AD, and include the policy and         submit written comments on the                 By letter dated August 2, 1999
procedures for implementing this alternate       amendment, and the procedures that          (Administrative Record No. IND–1664),
method in the air carrier’s maintenance          will be followed for the public hearing,    Indiana sent us an amendment to its
manual required by § 121.369 (c) of the                                                      program under SMCRA. This
                                                 if one is requested.
Federal Aviation Regulations [14 CFR
121.369 (c)]; however, the alternate system      DATES: We will accept written               amendment replaces State Program
must be accepted by the appropriate PMI and      comments until 4:00 p.m., e.s.t.,           Amendment No. 95–2, which we
require the maintenance records be               September 15, 1999. If requested, we        approved in the May 30, 1995 Federal
maintained either indefinitely or until the      will hold a public hearing on the           Register (60 FR 28069). Indiana sent the
work is repeated. Records of the piece-part      amendment on September 10, 1999. We         amendment at its own initiative.
inspections are not required under § 121.380     will accept requests to speak at the        Indiana proposes to amend the Indiana
(a)(2)(vi) of the Federal Aviation Regulations                                               Administrative Code (IAC). Below is a
                                                 hearing until 4:00 p.m., e.s.t. on August
[14 CFR 121.380 (a)(2)(vi)]. All other                                                       summary of the changes proposed by
Operators must maintain the records of           31, 1999.
                                                                                             Indiana. The full text of the proposed
mandatory inspections required by the            ADDRESSES: You should mail or hand
                                                                                             program amendment is available for
applicable regulations governing their           deliver written comments and requests
operations.                                                                                  your inspection at the locations listed
                                                 to speak at the hearing to Andrew R.
                                                                                             above under ADDRESSES.
   Note 3: The requirements of this AD have      Gilmore, Director, Indianapolis Field
been met when the engine manual changes          Office, at the address listed below.        310 IAC 12–5–64.1 (Surface) and 12–5–
are made and air carriers have modified their       You may review copies of the Indiana     128.1 (Underground) Revegetation
continuous airworthiness maintenance plans       program, the amendment, a listing of        Standards for Success for Nonprime
to reflect the requirements in the Engine        any scheduled public hearings, and all      Farmland
Manuals.
                                                 written comments received in response          Since the revisions being proposed for
   Issued in Burlington, Massachusetts, on       to this document at the addresses listed
August 9, 1999.                                                                              surface mining at § 12–5–64.1(c) are
                                                 below during normal business hours,         identical to those being proposed for
David A. Downey,                                 Monday through Friday, excluding
Assistant Manager, Engine and Propeller                                                      underground mining at § 12–5–128.1(c),
                                                 holidays. You may receive one free copy     they will be combined for ease of
Directorate, Aircraft Certification Service.     of the amendment by contacting OSM’s
[FR Doc. 99–21178 Filed 8–13–99; 8:45 am]                                                    discussion. These subsections provide
                                                 Indianapolis Field Office.                  the standards for success which are to
BILLING CODE 4910–13–U
                                                 Andrew R. Gilmore, Director,                be applied under the approved
                                                    Indianapolis Field Office, Office of     postmining land uses.
                                                    Surface Mining Reclamation and              Indiana proposes paragraph notation
                                                    Enforcement, Minton-Capehart             changes to reflect the organizational
DEPARTMENT OF THE INTERIOR
                                                    Federal Building, 575 North              changes made throughout subsections
Office of Surface Mining Reclamation                Pennsylvania Street, Room 301,           (c). Additionally, Indiana proposes
and Enforcement                                     Indianapolis, IN 46204, Telephone:       revisions throughout subsections (c) to
                                                    (317) 226–6700.                          correct the reference to the ‘‘Soil
30 CFR Part 914                                  Indiana Department of Natural               Conservation Service’’ to the ‘‘Natural
                                                    Resources, Bureau of Mine                Resources Conservation Service.’’
[SPATS No. IN–143–FOR; State Program                Reclamation, 402 West Washington            Indiana proposes to revise subsection
Amendment No. 98–5]                                 Street, Room W–295, Indianapolis,        (c)(3)(B) by adding the requirement that
                                                    Indiana 46204, Telephone: (317) 232–     if current Natural Resources
Indiana Regulatory Program                          1291.                                    Conservation Service predicted yield by
                                                 Indiana Department of Natural               soil map units are used to determine
AGENCY:Office of Surface Mining                     Resources, Division of Reclamation,      production of living plants, then the
Reclamation and Enforcement, Interior.              R.R. 2, Box 129, Jasonville, Indiana     standard for success shall be a weighted
                   Federal Register / Vol. 64, No. 157 / Monday, August 16, 1999 / Proposed Rules                               44449

average of the predicted yields for each       yield for each croppable, unmined soil which   do not receive a confirmation that we
unmined soil type which existed on the         is shown to exist in the county on the most    have received your Internet message,
permit areas at the time the permit was        current county soil survey. A croppable soil   contact the Indianapolis Field Office at
issued.                                        is any soil which the Natural Resources        (317) 226–6700. In the final rulemaking,
                                               Conservation Service has defined as being in
   Indiana proposes to delete the                                                             we will not necessarily consider or
                                               capability class I, II, III, or IV.
existing language in subsection (c)(3)(C)                                                     include in the Administrative Record
for determining production of living              Indiana also proposes to add new            any comments received after the time
plants on pastureland and replace it           subsections (c)(5)(D) and (c)(5)(E) to         indicated under ‘‘DATES’’ or at
with the following:                            allow other methods approved by the            locations other than the Indianapolis
                                               director of the Indiana Department of          Field Office.
  (C) A target yield determined by the
following formula: Target Yield = NRCS         Natural Resources (IDNR) to be used in
                                               determining success of production of           Public Hearing
Target Yield × (CCA/10 Year CA) where:
NRCS Target Yield = the average yield per      living plants on revegetated nonprime             If you wish to speak at the public
acre, as predicted by the Natural Resources    farmland pasture land. Once the method         hearing, contact the person listed under
Conservation Service, for the crop and the     for establishing the standards has been        FOR FURTHER INFORMATION CONTACT by
soil map units being evaluated. The most       selected, it may not be modified without       4:00 p.m., e.s.t. on August 31, 1999. We
current yield information at the time of       the approval of the director of IDNR.          will arrange the location and time of the
permit issuance shall be used, and shall be       Finally, Indiana proposes to revise the     hearing with those persons requesting
contained in the appropriate sections of the
                                               language in new subsection (c)(6) by           the hearing. If you are disabled and
permit application. CCA = the county average
for the crop for the year being evaluated as   removing the requirement that if current       need special accommodations to attend
reported by the United States Department of    Natural Resources Conservation Service         a public hearing, contact the individual
Agriculture crop reporting service, the        predicted yield by soil map units are          listed under FOR FURTHER INFORMATION
Indiana Agricultural Statistics Service. 10    used to determine production of living         CONTACT. The hearing will not be held
Year CA = the ten (10) Year Indiana            plants, then the standard for success          if no one requests an opportunity to
Agricultural Statistics Service county         shall be a weighted average of the             speak at the public hearing.
average, consisting of the year being          predicted yields for each unmined soil            You should file a written statement at
evaluated and the nine (9) preceding years.                                                   the time you request the hearing. This
                                               type which existed on the permit areas
   Indiana proposes to add subsection          at the time the permit was issued.             will allow us to prepare adequate
(c)(3)(D) to allow other methods                                                              responses and appropriate questions.
approved by the director of the Indiana        III. Public Comment Procedures                 The public hearing will continue on the
Department of Natural Resources (IDNR)            Under the provisions of 30 CFR              specified date until all persons
to be used in determining success of           732.17(h), we are requesting comments          scheduled to speak have been heard. If
production of living plants on                 on whether the amendment satisfies the         you are in the audience and have not
revegetated nonprime farmland pasture          applicable program approval criteria of        been scheduled to speak and wish to do
land.                                          30 CFR 732.15. If we approve the               so, you will be allowed to speak after
   Indiana proposes to delete existing         amendment, it will become part of the          those who have been scheduled. We
subsection (c)(4), and redesignate             Indiana program.                               will end the hearing after all persons
existing subsections (c)(5), (c)(6), (c)(7),                                                  scheduled to speak and persons present
                                               Written Comments                               in the audience who wish to speak have
and (c)(8) as subsections (c)(4), (c)(5),
(c)(6), and (c)(7), respectively.                We will make comments, including             been heard.
   At new subsection (c)(5)(B), Indiana        names and addresses of respondents,
                                               available for public review during             Public Meeting
proposes to revise the existing language
by adding the requirement that if              normal business hours. We will not               If only one person requests an
current Natural Resources Conservation         consider anonymous comments. If                opportunity to speak at a hearing, a
Service predicted yield by soil map            individual respondents request                 public meeting, rather than a public
units are used to determine production         confidentiality, we will honor their           hearing, may be held. If you wish to
of living plants, then the standard for        request to the extent allowable by law.        meet with us to discuss the amendment,
success shall be a weighted average of         Individual respondents who wish to             request a meeting by contacting the
the predicted yields for each unmined          withhold their name or address from            person listed under FOR FURTHER
soil type which existed on the permit          public review, except for the city or          INFORMATION CONTACT. All such meetings
areas at the time the permit was issued.       town, must state this prominently at the       are open to the public and, if possible,
   At new subsection (c)(5)(C), Indiana        beginning of their comments. We will           we will post notices of meetings at the
proposes to delete the existing language       make all submissions from                      locations listed under ADDRESSES. We
for determining production of living           organizations or businesses, and from          also make a written summary of each
plants on cropland and replace it with         individuals identifying themselves as          meeting a part of the Administrative
the following:                                 representatives or officials of                Record.
  (C) A target yield determined by the         organizations or businesses, available         IV. Procedural Determinations
following formula: Target Yield = CCA x        for public review in their entirety.
(NRCSP/NRCSC) where: CCA = the county            Your written comments should be              Executive Order 12866
average for the crop for the year being        specific and pertain only to the issues          The Office of Management and Budget
evaluated as reported by the United States     proposed in this rulemaking. You               (OMB) exempts this rule from review
Department of Agriculture crop reporting       should explain the reason for any              under Executive Order 12866
service, the Indiana Agricultural Statistics   recommended change. Please submit
Service. NRCSP = the weighted average of the
                                                                                              (Regulatory Planning and Review).
                                               Internet comments as an ASCII file
current Natural Resources Conservation                                                        Executive Order 12988
Service predicted yield for each croppable,
                                               avoiding the use of special characters
unmined soil which existed on the permit at    and any form of encryption. Please also          The Department of the Interior has
the time the permit was issued. NRCSC = the    include ‘‘Attn: SPATS No. IN–143–              conducted the reviews required by
weighted average of the current Natural        FOR,’’ your name, and your return              section 3 of Executive Order 12988
Resources Conservation Service predicted       address in your Internet message. If you       (Civil Justice Reform) and has
44450              Federal Register / Vol. 64, No. 157 / Monday, August 16, 1999 / Proposed Rules

determined that, to the extent allowed       or more in any given year on local, state,    EPA will not institute a second
by law, this rule meets the applicable       or tribal governments or private entities.    comment period on this action. Any
standards of subsections (a) and (b) of                                                    parties interested in commenting on this
                                             List of Subjects in 30 CFR Part 914
that section. However, these standards                                                     action should do so at this time.
are not applicable to the actual language     Intergovernmental relations, Surface         DATES: We must receive comments by
of State regulatory programs and             mining, Underground mining.                   September 15, 1999.
program amendments since each                  Dated: August 6, 1999.                      ADDRESSES: Written comments should
program is drafted and promulgated by        Charles Sandberg,                             be sent to: Carlton T. Nash, Chief,
a specific State, not by OSM. Under          Acting Regional Director, Mid-Continent       Regulation Development Section, Air
sections 503 and 505 of SMCRA (30            Regional Coordinating Center.                 Programs Branch, (AR–18J), U.S.
U.S.C. 1253 and 1255) and 30 CFR             [FR Doc. 99–21138 Filed 8–13–99; 8:45 am]     Environmental Protection Agency,
730.11, 732.15, and 732.17(h)(10),                                                         Region 5, 77 West Jackson Boulevard,
                                             BILLING CODE 4310–55–P
decisions on State regulatory programs                                                     Chicago, Illinois, 60604.
and program amendments must be                                                             FOR FURTHER INFORMATION CONTACT:
based solely on a determination of                                                         Randall Robinson, Meteorologist,
whether the submittal is consistent with     ENVIRONMENTAL PROTECTION
                                             AGENCY                                        Regulation Development Section, Air
SMCRA and its implementing Federal                                                         Programs Branch (AR–18J), U.S.
regulations and whether the other            40 CFR Part 52                                Environmental Protection Agency,
requirements of 30 CFR Parts 730, 731,                                                     Region 5, 77 West Jackson Boulevard,
and 732 have been met.                       [MN48–01–7273b; FRL–6415–3]
                                                                                           Chicago, Illinois 60604, (312) 353–6713.
National Environmental Policy Act            Approval and Promulgation of State            SUPPLEMENTARY INFORMATION: For
                                             Implementation Plan; Minnesota                additional information see the direct
  This rule does not require an                                                            final rule published in the rules section
environmental impact statement since         AGENCY:  Environmental Protection             of this Federal Register. Copies of the
section 702(d) of SMCRA (30 U.S.C.           Agency (EPA).                                 documents relevant to this action are
1292(d)) provides that agency decisions      ACTION: Proposed rule.                        available for public inspection during
on State regulatory program provisions                                                     normal business hours at the above
do not constitute major Federal actions      SUMMARY:    We are proposing to approve       address. (Please telephone Randall
within the meaning of section 102(2)(C)      a December 31, 1998, request from the         Robinson before visiting the Region 5
of the National Environmental Policy         Minnesota Pollution Control Agency for        Office.)
Act (42 U.S.C. 4332(2)(C)).                  new air pollution control requirements
                                             for the Minnesota sulfur dioxide (SO2)        List of Subjects in 40 CFR Part 52
Paperwork Reduction Act
                                             State Implementation Plan (SIP) for             Environmental protection, Air
  This rule does not contain                 Marathon Ashland Petroleum LLC                pollution control, Incorporation by
information collection requirements that     (Marathon). These requirements were           reference, Sulfur dioxide.
require approval by OMB under the            submitted in the form of an                     Dated: July 22, 1999.
Paperwork Reduction Act (44 U.S.C.           Administrative Order (Order) and
3507 et seq.).                                                                             Jerri-Anne Garl,
                                             include revisions associated with the
                                             addition of a new stack, revised              Acting Regional Administrator, Region 5.
Regulatory Flexibility Act                                                                 [FR Doc. 99–21013 Filed 8–13–99; 8:45 am]
                                             emission limits for numerous sources
   The Department of the Interior has        and other changes. The revisions result       BILLING CODE 6560–50–P
determined that this rule will not have      in an overall decrease in allowable SO2
a significant economic impact on a           emissions from the facility. The new
substantial number of small entities         requirements have been evaluated              ENVIRONMENTAL PROTECTION
under the Regulatory Flexibility Act (5      through a computerized modeling               AGENCY
U.S.C. 601 et seq.). The State submittal     analysis and have shown that they will        40 CFR Part 52
which is the subject of this rule is based   attain and maintain the National
upon corresponding Federal regulations       Ambient Air Quality Standard (NAAQS)          [R1–052–7211b; A–1–FRL–6417–4]
for which an economic analysis was           for SO2.
prepared and certification made that            In the final rules section of the          Approval and Promulgation of Air
such regulations would not have a            Federal Register, EPA is approving the        Quality Implementation Plans;
significant economic effect upon a           State’s submittal as a direct final rule      Connecticut; Approval of National Low
substantial number of small entities.        without prior proposal because EPA            Emission Vehicle Program
Therefore, this rule will ensure that        views this action as a noncontroversial       AGENCY:  Environmental Protection
existing requirements previously             action and anticipates no relevant            Agency (EPA).
published by OSM will be implemented         adverse comments. A detailed rationale        ACTION: Proposed rule.
by the State. In making the                  for the approval is set forth in the direct
determination as to whether this rule        final rule. If no relevant adverse            SUMMARY:   EPA is proposing to approve
would have a significant economic            comments are received in response to          a State Implementation Plan (SIP)
impact, the Department relied upon the       this rule, no further activity is             revision submitted by the State of
data and assumptions for the                 contemplated, and the direct final rule       Connecticut on February 7, 1996 and
corresponding Federal regulations.           will become effective. If EPA receives        February 18, 1999, providing that the
Unfunded Mandates                            relevant adverse comments, the direct         national low emission vehicle (National
                                             final rule with be withdrawn, and all         LEV) is an acceptable compliance
  OSM has determined and certifies           public comments received during the           option for new motor vehicles sold in
under the Unfunded Mandates Reform           30-day comment period set forth below         the State, which had previously adopted
Act (2 U.S.C. 1502 et seq.) that this rule   will be addressd in a subsequent final        the California low emission vehicle
will not impose a cost of $100 million       rule based on this proposed rule. The         (CAL LEV) program. Auto
                     Federal Register / Vol. 64, No. 157 / Monday, August 16, 1999 / Proposed Rules                           44451

manufacturers have agreed to sell these       ENVIRONMENTAL PROTECTION                       Dated: July 22, 1999.
cleaner vehicles throughout the State for     AGENCY                                       Jerri-Anne Garl,
the duration of the National LEV                                                           Acting Regional Administrator, Region 5.
program. This SIP revision is required        40 CFR Part 52                               [FR Doc. 99–21001 Filed 8–13–99; 8:45 am]
as part of the agreement between States                                                    BILLING CODE 6560–50–P
and automobile manufacturers to ensure        [WI91–01–7322b; FRL–6414–8]
the continuation of this program to
bring clean cars throughout the country,      Approval and Promulgation of                 ENVIRONMENTAL PROTECTION
beginning with 1999 model year                Implementation Plans; Wisconsin              AGENCY
vehicles. In the Final Rules section of       AGENCY:  Environmental Protection
this Federal Register, EPA is approving                                                    40 CFR Part 52
                                              Agency (EPA).
the State’s SIP submittal as a direct final                                                [NH–039–7166b; A–1–FRL–6416–1]
                                              ACTION: Proposed rule.
rule without prior proposal because the
Agency views this as a noncontroversial       SUMMARY:   We are proposing to approve       Approval and Promulgation of Air
submittal and anticipates no adverse          a site specific revision to the Wisconsin    Quality Implementation Plans; New
comments. A detailed rationale for the        sulfur dioxide (SO2) State                   Hampshire; General Conformity
approval is set forth in the direct final     Implementation Plan (SIP) for Murphy         AGENCY:  Environmental Protection
rule. If no adverse comments are              Oil, located in Superior, Wisconsin. In      Agency (EPA).
received in response to this action, no       its submittal, the State has requested       ACTION: Proposed rule.
further activity is contemplated. If EPA      that we approve alternate SO2 emission
receives adverse comments, the direct         limits for Murphy Oil into the               SUMMARY:   EPA is proposing to approve
final rule will be withdrawn and all          Wisconsin SIP. In the final rules section    New Hampshire’s General Conformity
public comments received will be              of this Federal Register, we are             Rule, incorporating it into the State
addressed in a subsequent final rule          conditionally approving the SIP revision     Implementation Plan (SIP). In the Final
based on this proposed rule. EPA will         as a direct final rule without prior         Rules section of this Federal Register,
not institute a second comment period.        proposal, because we view this as a          EPA is approving New Hampshire’s SIP
Any parties interested in commenting          noncontroversial revision amendment          submittal as a direct final rule without
on this action should do so at this time.     and anticipate no adverse comments. A        prior proposal because we view it as
DATES: Written comments must be               detailed rationale for the approval is set   noncontroversial and anticipate no
received on or before September 15,           forth in the direct final rule. If no        adverse comments. See the direct final
1999.                                         adverse comments are received in             rule for detailed rationale for the
                                              response to this proposed rule, no           approval. If EPA receives no adverse
ADDRESSES:   Comments may be mailed to        further activity is contemplated in          comments in response to this action, no
Susan Studlien, Deputy Director, Office       relation to this proposed rule. If we        further activity is contemplated. If EPA
of Ecosystem Protection (mail code            receive adverse comments, the direct         does receive adverse comments, we will
CAA), U.S. Environmental Protection           final rule will be withdrawn and all         withdraw the direct final rule and
Agency, Region I, One Congress Street,        public comments received will be             respond to all public comments
Suite 1100, Boston, MA 02114. Copies          addressed in a subsequent final rule         received in a subsequent final rule
of the State submittal and EPA’s              based on this proposed rule. We will not     based on this proposed rule. EPA will
technical support document are                institute a second comment period on         not institute a second comment period.
available for public inspection during        this action. Any parties interested in       If you are interested in commenting on
normal business hours, by appointment,        commenting on this action should do so       this action, you should do so at this
at the Office of Ecosystem Protection,        at this time.                                time.
U.S. Environmental Protection Agency,                                                      DATES: Written comments must be
                                              DATES: Comments on this proposed
Region I, One Congress Street, 11th                                                        received on or before September 15,
                                              action must be received by September
floor, Boston, MA, and Air and                                                             1999.
                                              15, 1999.
Radiation Docket and Information                                                           ADDRESSES: You may mail comments to
Center, U.S. Environmental Protection         ADDRESSES: Written comments should
                                                                                           Susan Studlien, Deputy Director, Office
Agency, 401 M Street, SW, (LE–131),           be sent to: Carlton T. Nash, Chief,
                                                                                           of Ecosystem Protection, EPA Region 1
Washington, DC 20460. In addition, the        Regulation Development Section, Air          (CAA), One Congress Street, Suite 1100
information is available at the Bureau of     Programs Branch (AR–18J), EPA Region         (CAA), Boston, MA 02114. You may
Air Management, Department of                 5, 77 West Jackson Boulevard, Chicago,       also email comments to
Environmental Protection, State Office        Illinois 60604–3590.                         cairns.matthew@epa.gov.
Building, 79 Elm Street, Hartford, CT         FOR FURTHER INFORMATION CONTACT:                You may review copies of the relevant
06106–1630.                                   Christos Panos, Regulation Development       documents to this action by
                                              Section, Air Programs Branch (AR–18J),       appointment during normal business
FOR FURTHER INFORMATION CONTACT:              EPA Region 5, 77 West Jackson                hours at the Office of Ecosystem
Robert C. Judge, (617) 918–1045.              Boulevard, Chicago, Illinois 60604,          Protection, EPA Region 1, One Congress
SUPPLEMENTARY INFORMATION:     For            (312) 353–8328.                              Street, Boston, Massachusetts; the Air
additional information, see the direct        SUPPLEMENTARY INFORMATION: For               and Radiation Docket and Information
final rule which is located in the Rules      additional information, see the Direct       Center, USEPA, 401 M Street, S.W.,
section of this Federal Register.             Final notice which is located in the         (LE–131), Washington, DC; and the Air
                                              Rules section of this Federal Register.      Resources Division, Department of
  Dated: July 28, 1999.
                                              Copies of the request and the EPA’s          Environmental Services, 64 North Main
John P. DeVillars,                                                                         Street, Concord, New Hampshire.
                                              analysis are available for inspection at
Regional Administrator, Region I.             the above address. (Please telephone         FOR FURTHER INFORMATION CONTACT:
[FR Doc. 99–21005 Filed 8–13–99; 8:45 am]     Christos Panos at (312) 353–8328 before      Matthew B. Cairns at 617–918–1667 or
BILLING CODE 6560–50–P                        visiting the Region 5 Office.)               cairns.matthew@epa.gov.
44452                Federal Register / Vol. 64, No. 157 / Monday, August 16, 1999 / Proposed Rules

SUPPLEMENTARY INFORMATION:      For         Office of Air Quality Planning and          comment period was made immediately
additional information, see the direct      Standards, Air Quality Strategies and       available after signature on that web site
final rule, which is located in the Rules   Standards Division, MD–15, Research         as well as on EPA’s Airlinks web site at
section of this Federal Register.           Triangle Park, NC, 27711, telephone         http://www.epa.gov/airlinks.
  Dated: July 12, 1999.                     (919) 541–3347.                               Dated: August 10, 1999.
John P. DeVillars,                          SUPPLEMENTARY INFORMATION:                  Robert Brenner,
Regional Administrator, Region 1.           Background on June 24, 1999 Proposal        Acting Assistant Administrator, Air and
[FR Doc. 99–21003 Filed 8–13–99; 8:45 am]                                               Radiation.
                                               The June 24 action proposed to
BILLING CODE 6560–50–P                      amend two aspects of the final rule,        [FR Doc. 99–21157 Filed 8–13–99; 8:45 am]
                                            issued on April 30, 1999, regarding         BILLING CODE 6560–50–P

                                            petitions submitted by eight
ENVIRONMENTAL PROTECTION                    Northeastern States for the purpose of
AGENCY                                      mitigating transport of one of the main     ENVIRONMENTAL PROTECTION
                                            precursors of ground-level ozone,           AGENCY
40 CFR Parts 52 and 97
                                            nitrogen oxides (NOX), across State         40 CFR Part 300
[FRL–6422–5]                                boundaries (see 64 FR 28250, May 25,
                                            1999). The proposal was necessary to
Findings of Significant Contribution        address issues rising from two recent       [FRL–6420–9]
and Rulemaking on Section 126               court rulings related to the 8-hour ozone
Petitions for Purposes of Reducing                                                      National Oil and Hazardous Substance
                                            national ambient air quality standard
Interstate Ozone Transport; Reopening                                                   Pollution Contingency Plan; National
                                            and the NOX State implementation plan
of Comment Period                                                                       Priorities List
                                            call (NOX SIP call). The EPA is not
AGENCY:  Environmental Protection           reopening the remainder of the April 30     AGENCY: Environmental Protection
Agency (EPA).                               final rule for public comment and           Agency (EPA).
                                            consideration.                              ACTION: Notice of intent to delete the
ACTION: Proposed rule; reopening of
comment period.                             Availability of Related Information         Darling Hill Dump site from the
                                              The official record for the section 126   National Priorities List; request for
SUMMARY: The EPA is reopening the                                                       comments.
comment period for the proposed             rulemaking completed April 30, 1999,
rulemaking under section 126 of the         as well as the public version of the        SUMMARY:    The Environmental Protection
Clean Air Act (CAA) that was published      record, has been established under          Agency (EPA) Region I announces its
on June 24, 1999 (64 FR 33962),             docket number A–97–43 (including            intent to delete the Darling Hill Dump
regarding petitions submitted by eight      comments and data submitted                 Site from the National Priorities List
Northeastern States for the purpose of      electronically as described below). The     (NPL) and requests public comment on
mitigating transport of ozone. The June     EPA has added a new section to that         this action. The NPL constitutes
24 proposal established a 45-day            docket for purpose of the June 24           appendix B of 40 CFR part 300 which
                                            proposed rulemaking. The public             is the National Oil and Hazardous
comment period, which ended on
                                            version of this record, including           Substance Pollution Contingency Plan
August 9. The EPA believes this
                                            printed, paper versions of electronic       (NCP), which EPA promulgated
provided an adequate opportunity to
                                            comments, which does not include any        pursuant to section 105 of the
comment on the specific issues raised
                                            information claimed as CBI, is available    Comprehensive Environmental
by the proposal. However, in response
                                            for inspection from 8:00 a.m. to 5:30       Response, Compensation, and Liability
to two requests from the public, EPA is
                                            p.m., Monday through Friday, excluding      Act, (CERCLA) as amended by the
extending the comment period to
                                            legal holidays. A reasonabale copying       Superfund Amendments and
August 25, 1999.
                                            fee may be charged for copying. The
DATES: The EPA is reopening the                                                         Reauthorization Act. After consultation
                                            rulemaking record is located at the
comment period to end on August 25,                                                     with the State of Vermont, EPA has
                                            address in ADDRESSES at the beginning
1999.                                                                                   determined that the responsible parties
                                            of this document. Electronic comments
ADDRESSES: Comments may be                                                              have implemented all appropriate
                                            can be sent directly to EPA at: A-and-
submitted (in duplicate form if possible)                                               response actions required.
                                            R-Docket@epa.gov. Electronic comments
to the Air and Radiation Docket and         must be submitted as an ASCII file          DATES: Comments concerning this site
Information Center (6102), Attention:       avoiding the use of special characters      must be submitted on or before
Docket No. A–97–43, U.S.                    and any form of encryption. No              September 15, 1999.
Environmental Protection Agency, 401        confidential business information (CBI)     ADDRESSES: Comments may be mailed
M Street SW, room M–1500,                   should be submitted through e-mail.         to: William Lovely, Remedial Project
Washington, DC 20460, telephone (202)       Comments and data will also be              Manager, U.S. EPA Region I , 1 Congress
260–7548. Comments and data may also        accepted on disks in WordPerfect 5.1/       Street, Suite 1100 (HBT), Boston, MA
be submitted electronically by following    6.1/8.0 file format or ASCII file format.   02114–2023.
the instructions under SUPPLEMENTARY        All comments and data in electronic            Comprehensive information on this
INFORMATION of this document.               form must be identified by the docket       site is available through the EPA Region
  Documents relevant to this action are     number A–97–43. Electronic comments         I public records center, which is located
available for inspection at the Docket      on the June 24, 1999 proposed               at EPA’s Region I office and is available
Office, at the above address, between       rulemaking may be filed online at many      for viewing by appointment only
8:00 a.m. and 5:30 p.m., Monday though      Federal Depository Libraries.               Monday through Friday, excluding
Friday, excluding legal holidays.              In addition, the Federal Register        holidays. Requests for appointments or
FOR FURTHER INFORMATION CONTACT:            rulemakings and associated documents        copies of the contents from the Regional
Questions concerning today’s action         are located at http://www.epa.gov/ttn/      records should be directed to the EPA
should be addressed to Carla Oldham,        rto/126. This notice of reopening the       Region I Records Center.
                     Federal Register / Vol. 64, No. 157 / Monday, August 16, 1999 / Proposed Rules                        44453

  The address for the Region I Records      significant threat to public health or the   public comment period and the
Center is: EPA Records Center, 1            environment and, therefore, taking of        availability of the Notice of Intent to
Congress Street, Boston, MA 02114–          remedial measures is not appropriate.        Delete. The public is asked to comment
2023, (617) 918–1440.                          Deletion of a site from the NPL does      on EPA’s intention to delete the site
  A copy of the public records is also      not preclude eligibility for subsequent      from the NPL; all critical documents
available for viewing at the Darling Hill   Fund-financed actions if future site         needed to evaluate EPA’s decision are
Dump Site information repository at:        conditions warrant such action. Section      included in the information repository
Town Hall, Town of Lyndon, 24 Main          300.425(e)(3) of the NCP states that         and deletion docket.
St., Lyndonville, VT 05851.                 Fund-financed actions may be taken at           Upon completion of the 30-day public
FOR FURTHER INFORMATION CONTACT:            sites that have been deleted from the        comment period, the EPA Regional
William Lovely, Remedial Project            NPL.                                         Office (Region I) will evaluate the
Manager, U.S. EPA Region I, 1 Congress                                                   comments before the final decision to
                                            III. Deletion Procedures                     delete. The Region will prepare a
St., Suite 1100 (HBT), Boston, MA
02114–2023, (617) 918–1240.                    In the NPL rulemaking published on        Responsiveness Summary, which will
SUPPLEMENTARY INFORMATION:                  October 15, 1984 (49 FR 40320), the          address comments received during the
                                            Agency solicited and received                public comment period. The
Table of Contents                           comments on whether the notice of            responsiveness summary will be made
I. Introduction                             comment procedures followed for              available to the public at the
II. NPL Deletion Criteria                   adding sites to the NPL also should be       information repository. Members of the
III. Deletion Procedures                    used before the sites are deleted.           public are welcome to contact the EPA
IV. Basis for Intended Site Deletion
                                            Comments also were received in               Regional Office to obtain a copy of the
I. Introduction                             response to the amendments to the NCP        responsiveness summary, when
   The Environmental Protection             proposed on February 12, 1985 (50 FR         available. If EPA still determines that
Agency, Region I announces its intent to    5862). Formal notice and comment             deletion from the NPL is appropriate,
delete the Darling Hill Dump, Lyndon,       procedures for delisting sites from the      after receiving public comments, a final
Vermont, from the National Priorities       NPL were subsequently added as part of       notice of deletion will be published in
List (NPL) which constitutes appendix B     the March 8, 1990 amendments to the          the Federal Register. However, it is not
of the NCP (40 CFR part 300), and           NCP (55 FR 8666 and 8846). Those             until a final notice of deletion is
requests public comment on this             procedures are set out in § 300.425(e)(4)    published in the Federal Register that
deletion. EPA identifies sites that         of the NCP. Deletion of sites from the       the site would be actually deleted.
appear to present a significant risk to     NPL does not itself create, alter, or        IV. Basis for Intended Site Deletion
public health, welfare, or the              revoke any individual’s rights or
                                            obligations. The NPL is designed               The following summary provides the
environment and maintains the NPL as
                                            primarily for informational purposes         Agency’s rationale for delisting the
the list of these sites. Sites on the NPL
                                            and to assist Agency management.             Darling Hill Dump site from the NPL.
may be the subject of remedial actions                                                     The Darling Hill Dump is an inactive
financed by the Hazardous Substance            Upon determination that at least one
                                            of the criteria described in                 solid waste disposal facility located near
Superfund Response Trust Fund (Fund).                                                    the Village of Lyndonville, Vermont,
Pursuant to § 300.425(e)(3) of the NCP,     § 300.425(e)(1) has been met, EPA may
                                            formally begin the deletion process. The     within the Town of Lyndon, in
any site deleted from the NPL remains                                                    Caledonia County, in the northeast part
eligible for Fund-financed remedial         following procedures were used for the
                                            intended deletion of this site:              of Vermont. The 3.5 acre site is located
actions if conditions at the site warrant                                                on the top of the north-facing slope of
such action.                                   (1) EPA Region I issued a Record of
                                            Decision which documented that no            Darling Hill which is bounded to the
   EPA will accept comments
                                            further CERCLA action is required at the     east and south by Darling Hill Road. The
concerning this proposal for thirty (30)
                                            Darling Hill Dump Site.                      land east of Darling Hill Road slopes
days after publication of this document
                                               (2) EPA Region I has recommended          steeply downward to the east branch of
in the Federal Register.
                                            deletion and prepared the relevant           the Passumpsic River. West of the
II. NPL Deletion Criteria                   documents.                                   Darling Hill Dump is a woodland area
   The NCP establishes the criteria that       (3) The State of Vermont has              which slopes steeply down to the west
the Agency uses to delete sites from the    concurred with EPA’s decision to             branch of the Passumpsic River.
NPL. In accordance with 40 CFR              delete. The State has not made the             The Darling Hill Dump operated as a
300.425(e)(1) of the NCP, sites may be      determinations which underlie the            municipal and industrial waste disposal
deleted from or recategorized on the        decision to delete.                          facility from 1952 though 1983. Routine
NPL where no further response is               (4) Concurrent with this National         testing by the State of Vermont in 1982
appropriate. In making a determination      Notice of Intent to Delete, a local notice   revealed the presence of low level,
to delete a site from the NPL, EPA shall    has been published in local newspapers       volatile organic compounds (VOC) in
consider, in consultation with the State,   and has been distributed to appropriate      the Village of Lyndonville’s Municipal
whether any of the following criteria       federal, state and local officials and       Wellfield. Given the wellfield’s close
have been met:                              other interested parties.                    proximity to the Site (0.5 mile), the
   (i) Responsible parties or other            (5) The Region has made all relevant      State of Vermont completed a
persons have implemented all                documents available in the Regional          Preliminary Assessment (PA) and Site
appropriate response actions required;      Office and the local site information        Inspection (SI) of the dump in 1985 to
   (ii) All appropriate Fund-financed       repository.                                  determine whether or not it was the
responses under CERCLA have been               These procedures have been                source of contamination. The SI report
implemented, and no further response        completed for the Darling Hill Dump          concluded that the dump was a possible
actions by responsible parties are          Site. This Federal Register document,        source of contamination at the
appropriate; or                             and a concurrent notice in the local         municipal well field and recommended
   (iii) The remedial investigation has     newspaper in the vicinity of the site,       further study. EPA subsequently
shown that the release poses no             announces the initiation of a 30-day         performed an Expanded Site Inspection
44454              Federal Register / Vol. 64, No. 157 / Monday, August 16, 1999 / Proposed Rules

(ESI) of the Darling Hill Dump from               One of the three criteria for deletion     that remedial activities conducted to
1986 to1989 and concluded that it was          specifies that EPA may delete a site          date at OU No. 1 (Zones 1 through 4)
the most likely source of contamination.       from the NPL if ‘‘Responsible parties or      and OU No. 3 have been protective of
As a result of this conclusion, the            other persons have implemented all            human health, welfare and the
Darling Hill Dump was proposed to the          appropriate response actions required.’’      environment. Institutional controls,
NPL in June 1988 and promulgated on            EPA, with concurrence from the State of       which have been established as part of
October 4, 1989.                               Vermont, believes that this criterion for     the remedy, will ensure continued
   Following the addition of the Darling       deletion has been met. As a result, EPA       protectiveness in the future.
Hill Dump to the NPL, the potentially          is proposing deletion of this Site from       Institutional controls are provided for in
responsible parties (PRPs) for the site        the NPL. Documents supporting this            a Grant of Environmental Restriction
contamination signed two                       action are available from the public          and Easement.
Administrative Orders by Consent in            records center.                                 This partial deletion pertains only to
1989 that required them to: (1) Perform          Dated: July 29, 1999.                       Zones 1 through 4 of OU No. 1 and OU
a Remedial Investigation and Feasibility       Donald Berger,                                No. 3 of the MTL Site and does not
Study under EPA oversight and; (2)             Acting Director, Office of Site Remediation
                                                                                             include the River Park portion of OU
install a carbon filtration system at the      and Restoration, Region I.                    No. 1 or OU No. 2. The River Park
municipal well field. The purpose of the       [FR Doc. 99–21010 Filed 8–13–99; 8:45 am]     Portion of OU No. 1 and OU No. 2 will
remedial investigation was to delineate                                                      remain on the NPL, and response
                                               BILLING CODE 6560–50–P
the nature and extent of contamination                                                       activities will continue at these OUs.
in all media (i.e. air, soil, surface water,                                                 DATES: The EPA will accept comments
groundwater and sediment) throughout           ENVIRONMENTAL PROTECTION                      concerning its proposal for partial
the Site and determine whether such            AGENCY                                        deletion until September 15, 1999.
contamination posed a threat to human                                                        ADDRESSES: Comments may be mailed
health and the environment. Installation       40 CFR Part 300                               to: Ms. Meghan Cassidy, Remedial
of the carbon filtration system would          [FRL–6420–6]                                  Project Manager, Office of Site
prevent ingestion of the low levels of                                                       Remediation and Restoration, U.S.
contamination previously identified.           National Oil and Hazardous                    Environmental Protection Agency, One
   In January 1992, EPA published a fact       Substances Pollution Contingency              Congress Street, Suite 1100–HBT,
sheet which summarized the findings of         Plan; National Priorities List                Boston, MA 02114–2023.
the RI/FS. Although the RI/FS found                                                            Comprehensive information on the
low levels of contamination in both soil       AGENCY:   Environmental Protection            MTL Site, the Administrative Record for
and groundwater, a Baseline Risk               Agency.                                       OU Nos. 1 and 3, and the Deletion
Assessment concluded that                      ACTION: Notice of intent for partial          Docket for this partial deletion is
contamination from the Darling Hill            deletion of the Materials Technology          maintained at the following information
Dump does not pose an unacceptable             Laboratory—Watertown Arsenal                  repository: Watertown Free Library, 123
risk to human health or the                    Development Corporation parcel and            Main Street, Watertown, Massachusetts.
environment. Moreover, installation of         Commander’s Quarters parcel (also
                                                                                             FOR FURTHER INFORMATION CONTACT: Ms.
the carbon filter in the municipal water       known as Zones 1–4) from the National
                                                                                             Meghan Cassidy, Remedial Project
supply helps to ensure that the                Priorities List (NPL).
                                                                                             Manager, Office of Site Remediation and
groundwater at the municipal well field        SUMMARY:   The Environmental Protection       Restoration, U.S. Environmental
remains within Federal drinking water          Agency (EPA) Region 1 announces its           Protection Agency, One Congress Street,
standards. The Village of Lyndonville is       intent to delete the Watertown Arsenal        Suite 1100–HBT, Boston, MA 02114–
responsible for monitoring the carbon          Development Corporation (WADC)                2023, (617) 918–1387.
filtration system and municipal well           parcel and the Commander’s Quarters           SUPPLEMENTARY INFORMATION:
field.                                         parcel (jointly known as Zones 1–4) of        I. Introduction
   Based on the results of the RI/FS, a        the Materials Technology Laboratory           II NPL Deletion Criteria
Proposed Plan recommending No                  (MTL) site from the National Priorities       III. Deletion Procedures
Action was released for thirty (30) day        List (NPL) and request public comment         IV. Basis for Intended Partial Site Deletion
public comment period. Following the           on this action. Zones 1 through 4 of
public comment period, a Record of             MTL include a portion of Operable Unit        I. Introduction
Decision (ROD) for the Site was signed         (OU) No. 1 and OU No. 3. The NPL                 The United States Environmental
on June 30, 1992. The ROD documented           constitutes appendix B of 40 CFR part         Protection Agency (EPA) Region I
the decision that no further CERCLA            300 which is the National Oil and             announces its intent to delete a portion
action was necessary at the Darling Hill       Hazardous Substances Pollution                of the Material Technology Laboratory
Dump. As such, the statutory                   Contingency Plan (NCP), which EPA             (MTL) Superfund Site located in
requirements of CERCLA section 121 for         promulgated pursuant to section 105 of        Watertown, Middlesex County,
remedial actions are not applicable and        the Comprehensive Environmental               Massachusetts from the National
no five year review is required.               Response, Compensation, and Liability         Priorities List (NPL), which constitutes
However, to ensure the long term               Act (CERCLA).                                 appendix B of the National Oil and
effectiveness of the initial actions, EPA         EPA bases its proposal to delete Zones     Hazardous Substances Pollution
and the PRPs entered into an                   1 through 4 of OU No. 1 and OU No. 3          Contingency Plan (NCP), 40 CFR part
Administrative Order by Consent which          on the determination by EPA and the           300, and requests comments on this
required a minimum of five years of            Commonwealth of Massachusetts,                proposed partial deletion.
post-ROD monitoring. This monitoring           through the Department of                        This proposal for partial deletion
concluded in 1997 since the analytical         Environmental Protection, that all            pertains to the portion of OU No. 1,
results supported the earlier decision         appropriate actions under CERCLA have         which includes the areas known as the
that no further CERCLA actions were            been implemented. Moreover, EPA and           WADC and the Commander’s Quarters
necessary.                                     the Commonwealth have determined              parcels. In addition, this proposal for
                   Federal Register / Vol. 64, No. 157 / Monday, August 16, 1999 / Proposed Rules                           44455

partial deletion pertains to OU No. 3       CERCLA has been implemented and no           northern boundary of the MTL site
which includes Area I. OU No. 3 is          further CERCLA response is                   along Arsenal Street and is bounded to
within the WADC parcel. These parcels       appropriate; (2) the Commonwealth of         the east by Talcott Street to the fence
are also known as Zones 1–4. Zones 1        Massachusetts has concurred with the         line; to the southeast by the
through 4 are bounded by Arsenal Street     partial deletion; (3) a notice has been      Commander’s Quarters Parcel; and to
to the north; Talcott Street to the east;   published in the local newspaper and         the south by North Beacon Street. The
North Beacon Street to the south; and       has been distributed to the appropriate      WADC Parcel, constitutes over 60
the Burnham Manning Post #1105,             Federal, State and local officials and       percent of the entire MTL site. Future
Veterans of Foreign War to the west. A      other interested parties announcing the      use of the WADC Parcel includes
figure and the exact coordinates that       commencement of the 30-day public            industrial/commercial and limited
define the deleted property at the Site     comment period on EPA’s Notice of            residential purposes.
are contained in the NPL Deletion           Intent to Delete; and (4) all relevant          The Commander’s Quarters Parcel is
Docket.                                     documents have been made available in        approximately 7.21 acres, and covers
   Section II of this document explains     the local site information repository.       the southeastern corner of the site north
the criteria for partially deleting            Deletion from the NPL does not itself     of North Beacon Street. The
portions of a site from the NPL. Section    create, alter, or revoke any individual’s    Commander’s Quarters Parcel is
III discusses the procedures that EPA is    rights or obligations. As mentioned in       bounded to the west and north by the
using for this action. Section IV           Section II of this document,                 WADC parcel; to the east by Talcott
discusses the MTL Site and explains         § 300.425(e)(3) of the NCP states that the   Street to the fence line; and to the south
how partial deletion criteria are met for   deletion of a site from the NPL does not     by North Beacon Street. This parcel
this Site.                                  preclude eligibility for future response     constitutes approximately 15 percent of
                                            actions.                                     the MTL site. The plan for the
II. NPL Deletion Criteria
                                               EPA’s Region I office will accept and     landscaping of the grounds on this
   Section 300.425(e) of the NCP            evaluate public comments on EPA’s            parcel was developed by the Olmsted
provides that releases may be deleted       Notice of Intent to Delete before making     Brothers, a prominent landscape
from, or recategorized on, the NPL          a final decision to delete the specified     architecture firm. The Commander’s
where no further response is                parcel. If necessary, Region I will          residence located on the Commander’s
appropriate. In making a determination      prepare a Responsiveness Summary to          Quarters Parcel and grounds are listed
to delete a release from the NPL, EPA       address any significant public               on the National Register of Historic
must determine, in consultation with        comments received.                           Places. The Commander’s Quarters
the state, whether any of the following        If EPA determines, with the State’s       Parcel has a designated future use as
criteria have been met: (i) Responsible     concurrence, that the partial deletion is    open space/park land.
parties or other parties have               appropriate after consideration of public       No wetlands or surface waters are
implemented all appropriate response        comment, then EPA will place a final         located at either the WADC or
actions required; (ii) All appropriate      Notice for Partial Deletion in the           Commander’s Quarters Parcels. The
Fund-financed response under CERCLA         Federal Register, completing the             groundwater beneath these parcels is
has been implemented, and no further        process. Public notices and copies of the    not considered suitable as a potential
action by responsible parties is            Responsiveness Summary, if necessary,        source of drinking water based on the
appropriate; or (iii) The remedial          will be available in the site information    classification by the Massachusetts
investigation has shown that the release    repository.                                  Department of Environmental
poses no significant threat to public                                                    Protection.
health or the environment and,              IV. Basis for Intended Partial Site
                                            Deletion                                     Site History
therefore, taking of remedial measures is
not appropriate.                              The following summary provides                MTL was established in 1816 and has
   Site releases may not be deleted from    EPA’s rationale for the proposed             been used throughout the years for a
the NPL until the state in which the site   deletion of the Watertown Arsenal            variety of missions, including storage,
is located has concurred with the           Development Corporation (WADC) and           repair and issue of small arms and
proposed deletion. EPA is required to       Commander’s Quarters parcels of MTL          ordnance supplies; material testing,
provide the state with thirty (30)          Site from the NPL.                           arms manufacturing; and as the home of
working days for review of the deletion                                                  the Army’s first materials research
                                            Site Description                             nuclear reactor (deactivated in 1970).
document prior to its publication in the
Federal Register.                             MTL is located in Watertown,                  Historical property uses on the WADC
   As described in 40 CFR 300.425(e)(3)     Massachusetts. The approximately 47.5-       Parcel include miscellaneous industrial
of the NCP, sites deleted from the NPL      acre MTL NPL site, is located on the         activities to support the facility’s
are eligible for further remedial actions   north bank of the Charles River,             mission. The buildings and structures
should future conditions warrant such       approximately five miles west of             situated within the WADC parcel (both
action. If new information becomes          Boston. MTL is bounded by Arsenal            existing and demolished) served a
available which indicates the need for      Street to the north; a fence line located    variety of purposes, especially research,
further action, EPA may initiate            beyond Talcott street to the east; the       prototype development, and other
remedial actions. Whenever there is a       Charles River to the south; and to the       industrial uses. There are two buildings
significant release from a site deleted     west by the Veterans of Foreign Wars,        within the WADC Parcel that were used
from the NPL, the site may be restored      USA, Burnham Manning Post No. 105            for residential purposes.
to the NPL without the application of       and other private properties. To                The Commander’s Quarters Parcel
the Hazard Ranking System.                  facilitate the environmental                 includes four structures including the
                                            investigation and remediation, and           former Commander’s residence, two
III. Deletion Procedures                    ultimate transfer of the property, MTL       storage bunkers and a Sentry Station.
   The following procedures were used       was divided into several parcels.            Also included are a tennis court and
for the intended partial deletion of this     The WADC Parcel , an approximately         garden area. Past use of this parcel was
site: (1) All appropriate response under    29.42-acre property, provides the entire     for residential and open space purposes.
44456             Federal Register / Vol. 64, No. 157 / Monday, August 16, 1999 / Proposed Rules

   In 1994, EPA added MTL to the NPL         controls are provided for in a Grant of      believes that this criterion has been met
on May 31, 1994 (59 FR 27989). In 1995,      Environmental Restriction and                for this partial deletion. In a letter dated
the Army and EPA entered into a              Easement (Grant). This document spells       December 28, 1998, the Commonwealth
Federal Facility Agreement to                out the pertinent restrictions for various   of Massachusetts provided their
coordinate environmental activities at       areas within the WADC and                    concurrence on the proposed deletion of
MTL. In 1989, the Department of              Commander’s Quarters parcel and              the WADC and Commander’s Quarters
Defense designated MTL for closure as        provides survey maps outlining the           parcels, formerly known as Zones 1
an active military facility under the Base   areas subject to restrictions. Through       through 4, of the Materials Technology
Realignment and Closure Act.                 this Grant, the Department of the Army       Laboratory Site. A copy of this letter is
   The Army, under the Installation          transferred certain rights to enforce and    available for review in the Information
Restoration Program, completed several       oversee the institutional controls to the    Repository as part of the Deletion
investigations at MTL. Studies               Commonwealth of Massachusetts DEP.           Docket. Subsequently, EPA is proposing
completed at MTL which pertain to the        The Grant also provides that the Army        partial deletion of these parcels from the
WADC and Commander’s Quarters                will retain certain of these enforcement     NPL.
parcels include a Phase I Remedial           and related access rights which it will        Dated: July 26, 1999.
Investigation (RI) (1991); a Phase 2 RI      hold co-extensively with DEP.
incorporating a Baseline Risk                   The requirements of OSWER Directive       John P. DeVillars,
Assessment (1994); a Final Terrestrial       9355.7–02 dated May 23, 1991, provide        Regional Administrator, Region I.
Ecological Risk Assessment (1995); a         that five-year reviews will be conducted     [FR Doc. 99–21009 Filed 8–13–99; 8:45 am]
Final Outdoor Feasibility Study (1996).      as a matter of policy at sites for which     BILLING CODE 6560–50–P
   The results of these various studies      the remedy was selected prior to the
showed that there were various areas on      passage of the Superfund Amendments
both the WADC and Commander’s                and Reauthorization Act (SARA); or           ENVIRONMENTAL PROTECTION
Quarters parcels where soil                  where hazardous substances will remain       AGENCY
contamination exceeded acceptable risk       on-site above levels that allow for
levels for human health. The                 unlimited use and unrestricted               40 CFR Part 300
contaminants of concern included             exposure. OSWER Directive 9355.7–02A
polynuclear aromatic hydrocarbons            dated July 26, 1994 clarifies that           [FRL–6420–8]
(PAHs), pesticides and limited PCBs. In      Executive Order 12580 delegates
addition, several locations in the           responsibility for five-year reviews at      National Oil and Hazardous
Commander’s Quarters parcel posed a          Federal facilities to the Departments of     Substances Pollution Contingency
potential risk to ecological receptors       Energy and Defense. Since the level of       Plan; National Priorities List
based on pesticide and metal                 residual contamination on the WADC           AGENCY:  Environmental Protection
contamination. Groundwater beneath           and Commander’s Quarters parcels             Agency.
the site was not deemed a media of           requires limitations to the future use of    ACTION: Notice of intent to delete the
concern based on the State’s                 the site, five-year reviews will be
groundwater classification.                                                               Tansitor Electronics site from the
                                             performed.                                   National Priority List; request for
   The remedy for the areas of concern
contained within the WADC and                Community Involvement                        comments.
Commander’s Quarters parcels was               Community input has been sought by         SUMMARY:   The Environmental Protection
selected and documented in the Area I        the Materials Technology Laboratory          Agency (EPA) Region 1 announces its
Record of Decision (ROD) issued in June      throughout the cleanup process.              intent to delete the Tansitor Electronics
1996; the Soil and Groundwater ROD           Community relations activities have          Site from the National Priority List
issued in September 1996; and an             included the formation of a Restoration      (NPL) and requests public comment on
Explanation of Significant Difference        Advisory Board (RAB); regular meetings       this proposed action. The NPL
(ESD) issued in January 1998. The            of the RAB; public meetings/hearings         constitutes appendix B of 40 CFR part
remedy as outlined in the above-             prior to the signing of the RODs; several    300 which is the National Oil and
mentioned decision documents required        public notices in local newspapers; and      Hazardous Substances Pollution
excavation of soils in exceedance of         several site tours/open houses at the        Contingency Plan (NCP), which EPA
established clean-up criteria, off-site      facility.                                    promulgated pursuant to section 105 of
disposal of excavated soil, confirmatory       A copy of the Deletion Docket can be       the Comprehensive Environmental
sampling to confirm compliance with          reviewed by the public at the                Response, Compensation, and Liability
clean-up criteria, backfilling of            Watertown Free Library. The Deletion         Act (CERCLA) of 1980, as amended.
excavations with clean fill, and             Docket includes this Notice, the RODs,       EPA and the Vermont Agency of Natural
implementation of institutional controls     ESD, Remedial Action Reports, Grant of       Resources (Vermont ANR) have
in order to ensure the continued             Environmental Restrictions and               determined that the Site poses no
protectiveness of the remedy in the          Easements, and correspondence                significant threat to public health or the
future. The majority of the clean-up         documenting that no further remedial         environment and therefore, further
levels established were set at               action is necessary at the WADC and          remedial measures pursuant to CERCLA
background.                                  Commander’s Quarters parcels (formerly
   The Department of the Army                                                             are not appropriate.
                                             referred to as Zones 1–4).
implemented the selected remedy and                                                       DATES: Comments concerning this Site
completed all necessary soil excavation      Current Status                               will be accepted on or before September
on the WADC and Commander’s                     One of the three criteria for site        15, 1999.
Quarters parcels in November 1997.           deletion specifies that EPA may delete       ADDRESSES: Address comments to:
Confirmatory soil sampling performed         a site (or portion of a site) from the NPL   Terrence Connelly, Remedial Project
during excavation work documented            if ‘‘responsible parties or other parties    Manager, U.S. EPA Region 1, 1 Congress
compliance with the established clean-       have implemented all appropriate             Street, Suite 1100, Boston, MA 02114–
up criteria. Necessary institutional         response actions required.’’ EPA             2023.
                    Federal Register / Vol. 64, No. 157 / Monday, August 16, 1999 / Proposed Rules                          44457

   Comprehensive information                 II. NPL Deletion Criteria                      ii. EPA has obtained Vermont ANR
concerning this Site is available through                                                 concurrence with the proposed deletion
                                                Section 300.425(e)(1) of the NCP          decision;
the EPA Region I public docket, which
                                             provides that sites may be deleted from,       iii. A notice has been published in the
is located at EPA’s Region I office. It is
                                             or recategorized on the NPL where no         local newspaper and has been
available for viewing by appointment
                                             further remedial action is necessary.        distributed to state and local officials
only from Monday through Friday,
                                             When deciding to delete a site from the      announcing the commencement of a 30-
excluding holidays. Requests for
                                             NPL, EPA shall consider, in                  day public comment period of EPA’s
appointment or copies of the contents
                                             consultation with the state, whether the     Notice of Intent to Delete;
from the Regional public docket should
                                             following criteria have been met:              iv. All relevant documents have been
be directed to the EPA Region I Records
Center.                                         i. Responsible parties or other persons   made available for public review in the
                                             have implemented all appropriate             EPA Region 1 Records Center and in the
   The address for the Region I Records      response actions required;                   local information repository.
Center is: EPA Records Center, 1                                                            Deletion of the Site from the NPL does
                                                ii. All appropriate Fund-financed
Congress Street, Suite 1100, Boston, MA                                                   not itself create, alter, or revoke any
                                             response under CERCLA has been
02114–2023, (617) 918–1417.                                                               individual’s rights or responsibilities.
                                             implemented, and no further response
   This information is also available for    action by responsible parties is             The NPL is designed primarily for
viewing at the Tansitor Electronics Site     appropriate; or                              informational purposes and to assist
information repository at the following         iii. The remedial investigation has       EPA management. As mentioned in
location: Bennington Free Library, 101       shown that the release poses no              section II of this document,
Silver Street, Bennington, Vermont           significant threat to public health or the   § 300.425(e)(3) of the NCP states that the
05201–2403, (802) 442–9051.                  environment, and, therefore, taking          deletion of a site from the NPL does not
FOR FURTHER INFORMATION CONTACT:             further remedial measures is not             render the site ineligible for further
Terrence Connelly, U.S. EPA Region 1,        appropriate.                                 response actions.
                                                Even if a site is deleted from the NPL,     Prior to deletion of the Tansitor
at (617) 918–1373.
                                             where hazardous substances, pollutants,      Electronics Site, EPA’s Region 1, will
SUPPLEMENTARY INFORMATION:
                                             or contaminants remain at the site above     accept and evaluate public comments
Table of Contents
                                             levels that allow for unlimited use and      on EPA’s Notice of Intent to Delete the
  I. Introduction                                                                         Site before making a final decision to
  II. NPL Deletion Criteria
                                             unrestricted exposure, in accordance
                                             with CERCLA, EPA will conduct a              delete. If necessary, the EPA will
  III. Deletion Procedures                                                                prepare a Responsiveness Summary to
  IV. Basis of Intended Site Deletion        review at least every five years after the
                                             initiation of the remedial action to         address any significant public
I. Introduction                              ensure that the site remains protective      comments received.
                                                                                            A deletion occurs when the Regional
                                             of public health and the environment. In
   The Environmental Protection Agency                                                    Administrator or his or her designee
                                             the case of the Tansitor Electronics Site,
(EPA) Region 1 announces its intent to                                                    places a final notice in the Federal
                                             the selected remedy is protective of
delete the Tansitor Electronics Site in                                                   Register. Generally, the NPL will reflect
                                             human health and the environment, but
Bennington, Vermont from the National                                                     deletions in the final update following
                                             does not allow for unlimited and
Priorities List (NPL), appendix B of the                                                  the Notice. Public notices and copies of
                                             unrestricted use of the Site. Due to this
National Oil and Hazardous Substances                                                     the Responsiveness Summary will be
                                             condition, surveys of the Site will be
Pollution Contingency Plan (NCP), 40                                                      made available to local residents by the
                                             conducted by the EPA and Vermont
CFR part 300, and requests comments                                                       Regional office.
                                             ANR to ensure that the remedial action
on this deletion. EPA identifies sites
                                             is meeting the requirements of               IV. Basis of Intended Site Deletion
which appear to be a significant risk to
                                             protecting human health and the                 The following summary provides the
the public health and welfare or to the
                                             environment. If new information              Agency’s rationale for the proposal to
environment. The NPL is maintained as
                                             becomes available which indicates a          delete this Site from the NPL.
the list of these sites. As described in
                                             need for further action, EPA will initiate      The Site consists of approximately 44
§ 300.425(e)(3) of the NCP, sites deleted
                                             further remedial actions. Whenever           acres of land on West Road (Route 9) in
from the NPL remain eligible for
                                             there is a significant release from a site   the Town of Bennington, Vermont, and
remedial actions without application of
                                             deleted from the NPL, the site may be        is approximately 3.5 miles west of
the Hazard Ranking System (HRS) in the
                                             restored to the NPL without the              Bennington Center. Most of the Site is
unlikely event that conditions at the site
                                             application of the Hazard Ranking            located to the north of Route 9, with the
warrant such action.
                                             System.                                      remainder of the Site located to the
   EPA will accept comments on the                                                        south of Route 9. The portion of the Site
proposal to delete this Site from the        III. Deletion Procedures
                                                                                          located to the south of Route 9 consists
NPL for thirty days following                  EPA has taken the following steps in       of wetlands.
publication of this document in the          accordance with the agency’s deletion           The Site is located in an area zoned
Federal Register and in newspapers in        procedures:                                  rural residential with a commercial
the vicinity of Bennington, Vermont.           i. EPA and Vermont ANR surveyed            corridor overlay along Route 9. As a
   Section II of this document explains      the Tansitor Electronics Site and            manufacturing facility, Tansitor’s
the criteria for deleting sites from the     declared that with the environmental         industrial use of the Site represents a
NPL. Section III discusses the               easement, groundwater reclassification,      grandfathered non-conforming use
procedures that EPA is using for this        and long-term monitoring in place, it        under the zoning laws. It is bounded to
action. Section IV discusses the history     presented no harm to human health or         the north by privately owned woodland;
of the Tansitor Electronics Site, the        the environment. Following the survey,       to the east by Houran Road and a
remedial action which has been carried       EPA prepared a Final Close-out Report        commercial property; to the south by
out, and explains the manner in which        which documented that no further             wetlands; and to the west by
the Site meets the deletion criteria.        remedial action is necessary.                agricultural/residential areas. Pleasant
44458             Federal Register / Vol. 64, No. 157 / Monday, August 16, 1999 / Proposed Rules

Valley School is located approximately       Reclassification Order also serves to        ADDRESSES:   Address comments to:
1,200 feet east and upgradient of the        restrict use of the Site groundwater.        Terrence Connelly, Remedial Project
Site. Potable water supplies within the         The environmental easement was            Manager, U.S. EPA Region 1, 1 Congress
vicinity of the Site, including the water    recorded into the Bennington County          Street, Suite 1100, Boston, MA 02114–
supply on the Site, are provided by          Registry of Deeds. Monitoring for the        2023.
private bedrock wells.                       Groundwater Reclassification Order              Comprehensive information
  Tansitor Electronics, Inc., currently      began in May 1994. The monitoring was        concerning this site is available through
manufactures electronic capacitors at        then adjusted in October 1998 to meet        the EPA Region I public docket, which
the Site. Major site features include        the long-term monitoring requirement of      is located at EPA’s Region I office. It is
Tansitor’s operating manufacturing/          the Record of Decision.                      available for viewing by appointment
office building, an Etch House, a man-          As noted in section II above, EPA may     only from Monday through Friday,
made pond (known as the Fire Pond),          delete a site from the NPL when              excluding holidays. Requests for
parking areas, a Solid Waste Disposal        ‘‘Responsible parties or other persons       appointment or copies of the contents
Area, a Disposal Area, a Concrete Pad        have implemented all appropriate             from the Regional public docket should
Area, and a Borrow Area.                     response actions required’’. As EPA,         be directed to the EPA Region I Records
  Since the 1950’s, various owners have      with Vermont ANR concurrence, has            Center.
used the Site as a manufacturing facility    determined that this criterion is met,          The address for the Region I Records
for electronic capacitors. Over the          EPA announces its intent to delete the       Center is: EPA Records Center, 1
period from 1956 and 1979 an estimated       Tansitor Electronics Site from the           Congress Street, Suite 1100, Boston, MA
equivalent of 117 drums of process           National Priorities List.                    02114–2023, (617) 918–1417.
waste were disposed in the Disposal            Dated: August 2, 1999.                        Information concerning this Site is
Area, with an occasional discharge of        Patricia L. Meaney,                          also available for viewing at the
waste detergents and dilute acid             Director, Office of Site Remediation and     information repository at the following
solutions into the two leach fields or       Restoration.                                 location: Dyer Library, 371 Main Street,
directly into the intermittent stream        [FR Doc. 99–21008 Filed 8–13–99; 8:45 am]    Saco, Maine 04072, (207) 283–3861 or
north of its manufacturing/office            BILLING CODE 6560–50–P
                                                                                          (207) 282–3031.
building, and some release of process                                                     FOR FURTHER INFORMATION CONTACT:
wastes on the Concrete Pad.                                                               Terrence Connelly at (617) 918–1373.
  Prior to the remedial action, the risk     ENVIRONMENTAL PROTECTION                     SUPPLEMENTARY INFORMATION:
assessment concluded that unacceptable       AGENCY
carcinogenic and noncarcinogenic risks                                                    Table of Contents
would result from ingestion of               40 CFR Part 300                              I. Introduction
overburden groundwater for future                                                         II. NPL Deletion Criteria
                                             [FRL–6420–7]                                 III. Deletion Procedures
residents. The risk is based on a future
scenario since no individuals are                                                         IV. Basis of Intended Site Deletion
                                             National Oil and Hazardous
currently ingesting contaminated             Substances Pollution Contingency             I. Introduction
groundwater at the Site.                     Plan; National Priorities List
  After conducting a Remedial                                                                The Environmental Protection Agency
Investigation, a Record of Decision          AGENCY: Environmental Protection             (EPA) Region 1 announces its intent to
(ROD) was issued in 1995 for the             Agency.                                      delete the Saco Tannery Waste Pits
Tansitor Electronics Site. The Remedial      ACTION: Notice of intent to delete the       (STWP) Site in Saco, Maine from the
Action Objectives selected were              Saco Tannery Waste Pits Site from the        National Priorities List (NPL), Appendix
intended to prevent exposure to the          National Priority List; request for          B of the National Oil and Hazardous
groundwater, prevent migration offsite,      comments.                                    Substances Pollution Contingency Plan
and to restore groundwater to drinking                                                    (NCP), 40 CFR part 300, and requests
water standards if technically               SUMMARY:    The Environmental Protection     comments on this deletion. EPA
practicable. These objectives have been      Agency (EPA) Region 1 announces its          identifies sites which appear to be a
met by the following actions:                intent to delete the Saco Tannery Waste      significant risk to the public health and
  • Implementation of an                     Pits Site from the National Priority List    welfare or to the environment. The NPL
environmental easement to prevent the        (NPL) and requests public comment on         is maintained as the list of these sites.
use of contaminated groundwater;             this proposed action. The NPL                As described in § 300.425(e)(3) of the
  • Long-term monitoring of                  constitutes appendix B of 40 CFR part        NCP, sites deleted from the NPL remain
groundwater on a regular basis to            300 which is the National Oil and            eligible for remedial actions without
evaluate changes in conditions over          Hazardous Substances Pollution               application of the Hazard Ranking
time;                                        Contingency Plan (NCP), which EPA            System (HRS) in the unlikely event that
  • Establishment of contingencies for       promulgated pursuant to section 105 of       conditions at the site warrant such
future additional investigation or further   the Comprehensive Environmental              action.
action should the long-term monitoring       Response, Compensation, and Liability           EPA will accept comments on the
reveal that contaminants have migrated       Act (CERCLA) of 1980, as amended.            proposal to delete this site from the NPL
beyond their current vertical or             EPA and the Maine Department of              for thirty days following publication of
horizontal extent; and                       Environmental Protection (Maine DEP)         this notice in the Federal Register and
  • A review of the Site every five years    have determined that the Site poses no       in newspapers in the vicinity of Saco,
to ensure that the remedy remains            significant threat to public health or the   Maine.
protective of human health and the           environment and therefore, further              Section II of this document explains
environment.                                 remedial measures pursuant to CERCLA         the criteria for deleting sites from the
  In addition to the environmental           are not appropriate.                         NPL. Section III discusses the
easement, the November 23, 1993 (and         DATES: Comments concerning this site         procedures that EPA is using for this
subsequently modified on March 15,           will be accepted on or before September      action. Section IV discusses the history
1994) Vermont Groundwater                    15, 1999.                                    of the Saco Tannery Waste Pits Site, the
                   Federal Register / Vol. 64, No. 157 / Monday, August 16, 1999 / Proposed Rules                            44459

remedial action which has been carried          ii. EPA has obtained Maine DEP             concentrated along Hearn Road and Flag
out, and explains the manner in which         concurrence with the proposed deletion       Pond Road. These homes rely on
the site meets the deletion criteria.         decision;                                    groundwater for their water supply from
                                                iii. A notice has been published in the    private drinking wells. The groundwater
II. NPL Deletion Criteria                     local newspaper and has been                 aquifer in the area of the Site is
   Section 300.425(e)(1) of the NCP           distributed to appropriate state and         classified under federal standards as IIB,
provides that sites may be deleted from,      local officials and other interested         suitable for public water supplies.
or recategorized on the NPL where no          parties announcing the commencement             The majority of the Site is forested,
further remedial action is necessary.         of a 30-day public comment period of         both upland and wetland; unforested
When deciding to delete a site from the       EPA’s Notice of Intent to Delete;            land consists of remediated areas, scrub-
NPL, EPA shall consider, in                     iv. All relevant documents have been       shrub wetlands, and bedrock outcrops.
consultation with the state, whether the      made available for public review in the      A 100-year flood plain is located within
following criteria have been met:             EPA Region 1 Records Center and in           the property boundaries, but none of the
   i. Responsible parties or other persons    local Site information repository.           waste pits or lagoons are located within
have implemented all appropriate                Deletion of the Site from the NPL does     the flood plain.
response actions required;                    not itself create, alter, or revoke any         The Saco Tanning Corporation used
   ii. All appropriate Fund-financed          individual’s rights or responsibilities.     the site for waste disposal from 1959 to
response under CERCLA has been                The NPL is designed primarily for            the late 1970s. Upon investigation, fifty-
implemented, and no further response          informational purposes and to assist         seven waste pits, two lagoons, and two
action by responsible parties is              EPA management. As mentioned in              separate areas beyond the waste pits
appropriate; or                               section II of this document,                 totaling thirteen acres were determined
   iii. The remedial investigation has        § 300.425(e)(3) of the NCP states that the   to be contaminated with tannery waste.
shown that the release poses no               deletion of a site from the NPL does not     Contaminants within the site include
significant threat to public health or the    render the site ineligible for further       arsenic, chromium, lead, volatile
environment, and, therefore, taking           response actions.                            organic compounds, and semi-volatile
further remedial measures is not                Prior to deletion of the Saco Tannery      organic compounds.
appropriate.                                  Waste Pits Site, EPA’s Region 1 Office          After conducting a Remedial
   Even if a site is deleted from the NPL,    will accept and evaluate public              Investigation, a Record of Decision
where hazardous substances, pollutants,       comments on EPA’s Notice of Intent to        (ROD) was issued in 1989 for the STWP
or contaminants remain at the site above      Delete the Site before making a final        Site. The Remedial Action objectives
levels that allow for unlimited use and       decision to delete. If necessary, the EPA    selected for this site were intended to
unrestricted exposure, EPA’s policy is        will prepare a Responsive Summary to         prevent physical contact with the waste
that a subsequent review of the site will     address any significant public               and exposure to the groundwater. The
be conducted at least every five years        comments received.                           first objective has been met through the
after the initiation of the remedial action     A deletion occurs when the Regional        creation of a soil cover acting as a
at the site to ensure that the site remains   Administrator or his or her designee         physical barrier between humans and
protective of public health and the           places a final notice in the Federal         wildlife and sludge and sediments in
environment. In the case of the Saco          Register. Generally, the NPL will reflect    the pits, lagoons, wet and seep areas.
Tannery Waste Pits Site, the selected         deletions in the final update following      The second objective has been met
remedy is protective of human health          the Notice. Public notices and copies of     through the enactment of State
and the environment, but does not allow       the Responsiveness Summary will be           legislation designating the Site as a
for unlimited and unrestricted use of the     made available to local residents by the     Wildlife Preserve. This institutional
site. Due to this condition, surveys of       Regional office.                             control prohibits groundwater use on
the site will be conducted by the EPA                                                      the Site. Long-term monitoring has
and Maine DEP to ensure that the              IV. Basis of Intended Site Deletion
                                                                                           shown that contaminated groundwater
remedial action is meeting the                   The following summary provides the        is not flowing off the STWP Site.
requirements of protecting human              Agency’s rationale for the proposal to          The primary remedial action includes:
health and the environment. If new            delete this site from the NPL.                  • A soil cover system comprised of
information becomes available which              The 213-acre STWP Site is located in      geotextile, rock, stone, till, and
indicates a need for further action, EPA      a rural section of Saco, Maine. The Site     vegetation layers;
will initiate further remedial actions.       is bounded by the Maine Turnpike to             • Permanent fencing enclosing the
Whenever there is a significant release       the east, residential property along         waste pits and lagoons;
from a site deleted from the NPL, the         Hearn Road to the west, the Saco-               • Institutional control of designating
site may be restored to the NPL without       Scarborough town line to the north, and      the entire site, by State of Maine
the application of the Hazard Ranking         Flag Pond Road to the south.                 legislative act, as a wildlife preserve;
System.                                       Automotive entry to the Site is limited         • Long-term groundwater monitoring;
                                              to Flag Pond Road; all-terrain vehicle          • Long-term monitoring of surface
III. Deletion Procedures                      trails enter the Site from the north and     water and sediments; and
   EPA has taken the following steps in       west.                                           • Wetlands compensation on and
accordance with the agency’s deletion            The Site is located in an area which      offsite for the compensation of wetlands
procedures:                                   is undergoing a transition from rural        lost through the construction of the soil
   i. EPA and the Maine DEP surveyed          farming to suburban residential housing.     covers.
the Saco Tannery Waste Pit Site and           There were approximately sixty single           The design for the Soil Cover System
declared that the remedial actions are        family homes located within a half-mile      and Compensatory Wetland
complete and remain protective of             radius of the Site at the time of the        Construction was completed in
human health and the environment.             remedy selection in 1989 and the             September 1992. The remedial action
Following the survey, a Final Closure         number has gradually increased as            was phased with initial site work
Report has documented that no further         farmland is being turned into residential    completed in November 1992 and the
remedial action is necessary.                 properties. Residential development is       soil covers phase completed in October
44460                Federal Register / Vol. 64, No. 157 / Monday, August 16, 1999 / Proposed Rules

1993. On September 17, 1993 the EPA         DEPARTMENT OF TRANSPORTATION                universal resource locator (URL): http:/
and the Maine DEP surveyed the site                                                     /dms.dot.gov. It is available 24 hours
and declared that the soil cover system     Federal Highway Administration              each day, 365 days each year. Please
was completed according to the                                                          follow the instructions online for more
                                            49 CFR Parts 385 and 390                    information and help.
requirements in the ROD. Revegetation
of the area was carried out in October      [FHWA Docket No. FHWA–99–5467]                An electronic copy of this document
of 1993. Purchase of 247 acres of the                                                   may be downloaded using a modem and
                                            RIN 2125–AE56                               suitable communications software from
nearby Saco Heath from a peat mining
                                                                                        the Government Printing Office’s
company as compensation for the             Safety Fitness Procedures
                                                                                        Electronic Bulletin Board Service at
permanent loss of ten wetland acres
                                            AGENCY: Federal Highway                     (202) 512–1661. Internet users may
onsite was completed in December                                                        reach the Office of the Federal Register’s
                                            Administration (FHWA), DOT.
1993, and restoration of the remaining                                                  home page at http://www.nara.gov/
                                            ACTION: Notice of proposed rulemaking
excavated wetland was completed in                                                      fedreg and the Government Printing
                                            (NPRM); request for comments.
September 1994.                                                                         Office’s database at http://
   Maintenance of the site has included     SUMMARY:    The FHWA proposes to            www.access.gpo.gov/nara.
quarterly inspections for the first five    implement section 4009 of the
                                                                                        Background
years of remediation and semi-annual        Transportation Equity Act for the 21st
inspections since then. Per the             Century (TEA–21) by amending the               Section 4009 of TEA–21 (Public Law
Superfund State Contract between EPA        safety fitness procedures of the Federal    105–178, 112 Stat. 107, at 405, June 9,
and Maine DEP, these inspections are to     Motor Carrier Safety Regulations. This      1998) amends 49 U.S.C. 31144 and
                                            action would prohibit all motor carriers    requires the Secretary of Transportation
be carried out by the State for thirty
                                            found by the Secretary to be unfit from     to maintain by regulation a procedure
years following the remediation. These
                                            operating commercial motor vehicles         for determining the safety fitness of an
inspections of the Site will be                                                         owner or operator [of commercial motor
                                            (CMVs) in interstate commerce. The
conducted to ensure that the actions                                                    vehicles (CMVs)]. The procedure shall
                                            FHWA is proposing to treat an
taken to form a physical barrier between                                                include, at a minimum, the following
                                            unsatisfactory safety rating under the
humans and wildlife and the waste in                                                    elements:
                                            safety fitness procedure regulations as a
the pits and lagoons are maintained.        determination of unfitness. The FHWA           (1) Specific initial and continuing
Monitoring of groundwater, surface          also would revise the listing for           requirements with which an owner or
water, and sediment will continue, as       locations of motor carrier and highway      operator must comply to demonstrate
outlined in the O&M Plan, to measure        safety field offices to reflect recent      safety fitness.
water quality within the site and around    changes to the Federal Highway                 (2) A methodology the Secretary will
the perimeter. These State-performed        Administration organizational structure.    use to determine whether an owner or
inspections and monitoring activities                                                   operator is fit.
                                            DATES: Comments must be received on
began in April 1995.                                                                       (3) Specific time frames within which
                                            or before September 15, 1999.
                                                                                        the Secretary will determine whether an
   The survey of the Site and approval      ADDRESSES: Your signed, written             owner or operator is fit. 49 U.S.C.
of the Remedial Action by the EPA and       comments must refer to the docket           31144(b).
Maine DEP demonstrated that the Saco        number appearing at the top of this            Because these provisions are very
Tannery Waste Pits Site no longer poses     document and you must submit the            similar to the previous 49 U.S.C.
a threat to human health and welfare or     comments to the Docket Clerk, U.S.          31144(a)(1), which was enacted by
the environment.                            DOT Dockets, Room PL–401, 400               section 215 of the Motor Carrier Safety
   As noted in section II above, EPA may    Seventh Street, SW., Washington, DC         Act (MCSA) of 1984 (Public Law 98–
delete a site from the NPL when ‘‘all       20590–0001. All comments received           554, 98 Stat. 2832), the FHWA
                                            will be available for examination at the    regulations at 49 CFR parts 385 and 386
appropriate Fund-financed response
                                            above address between 9 a.m. and 5          already include most of the
under CERCLA has been implemented,
                                            p.m., e.t., Monday through Friday,          requirements listed above.
and no further response action by           except Federal holidays. Those desiring
responsible parties is appropriate’’. As                                                   Section 4009 of TEA–21 introduced
                                            notification of receipt of comments must    two important changes. First, it
EPA, with Maine DEP concurrence, has        include a self-addressed, stamped           transferred the substance of 49 U.S.C.
determined that this criterion is met,      envelope or postcard.                       5113 to section 31144. Section 5113
EPA announces its intent to delete the      FOR FURTHER INFORMATION CONTACT: Ms.        codified section 15(b) of the MCSA of
Saco Tannery Waste Pits Site from the       Deborah M. Freund or Mr. William C.         1990 (Public Law 101–500, 104 Stat.
National Priorities List.                   Hill, Office of Motor Carrier Research      1213, 1218, November 3, 1990), which
  Dated: August 2, 1999.                    and Standards, (202) 366–4009; or Mr.       prohibited motor carriers rated
Patricia L. Meaney,                         Charles E. Medalen, Office of the Chief     unsatisfactory from using CMVs to
Director, Office of Site Remediation and    Counsel, (202) 366–1354, Federal            transport, in interstate commerce, more
Restoration.                                Highway Administration, 400 Seventh         than 15 passengers (including the
[FR Doc. 99–21007 Filed 8–13–99; 8:45 am]
                                            Street, SW., Washington, DC 20590–          driver) or hazardous materials (HM) in
                                            0001. Office hours are from 7:45 a.m. to    quantities requiring placarding, starting
BILLING CODE 6560–50–P
                                            4:15 p.m., e.t., Monday through Friday,     on the 46th day after the rating was
                                            except Federal holidays.                    issued. The regulation implementing
                                            SUPPLEMENTARY INFORMATION:                  section 5113 has been in effect since
                                                                                        1991 (49 CFR 385.13). By attaching this
                                            Electronic Access                           prohibition to a regulatory standard
                                              Internet users may access all             already used by the FHWA (i.e.,
                                            comments received by the U.S. DOT           unsatisfactory), Congress equated that
                                            Dockets, Room PL–401, by using the          rating with a determination that
                  Federal Register / Vol. 64, No. 157 / Monday, August 16, 1999 / Proposed Rules                              44461

passenger and HM motor carriers were         carriers rated unsatisfactory would have      Although the FHWA would continue to
not fit to operate on the highways.          either improved their ratings since 1991      review proposed and final conditional
   Second, section 4009 of TEA–21            or ceased operating in interstate             safety ratings, the agency needs to place
prohibits all owners and operators of        commerce. However, there were                 a higher priority on the proposed and
CMVs not previously subject to 49 U.S.C      significant numbers of general freight        final unsatisfactory safety ratings
5113—that is, those owners and               carriers that held unsatisfactory ratings     because of the severe operational
operators using CMVs to transport            at the time TEA–21 was enacted; their         consequences for the affected motor
freight that does not include HM in          operations were not illegal. The              carriers. However, as explained above, if
quantities requiring placarding—from         prohibition on unfit/unsatisfactory           a motor carrier of non-HM freight that
using those vehicles in interstate           general freight carriers in section 4009      held an unsatisfactory safety rating
commerce starting on the 61st day after      must be understood as applying only to        issued prior to the effective date of a
being found ‘‘unfit.’’ Also, Federal         those rated unsatisfactory by the FHWA        final rule were to receive a follow-up
agencies are now prohibited from using       after the effective date of a final rule      proposed unsatisfactory rating after the
those owners and operators to provide        generated by this proceeding. However,        effective date of a final rule, the FHWA
interstate transportation.                   if a motor carrier that had been rated        would provide those motor carriers the
   Because 49 U.S.C. 31144(b), as            unsatisfactory prior to the effective date    same priority handling as motor carriers
amended by section 4009, provides that       of the final rule received another            receiving a proposed unsatisfactory
‘‘[t]he Secretary shall maintain             unsatisfactory rating after the effective     safety rating for the first time.
[emphasis added] by regulation a             date of the final rule as a result of            The DOT Office of Inspector General
procedure for determining the safety         another compliance review, the new            (OIG) has observed that unsatisfactory
fitness of an owner or operator,’’ the       provisions would apply and the motor          motor carriers of non-HM freight may
FHWA believes that Congress                  carrier would be required to cease its        continue to operate in interstate
authorized the continued use of the          operations in interstate commerce             commerce under the current
safety fitness rating regulation in effect   within 60 days.                               regulations. These motor carriers may
on June 9, 1998, the date of enactment          Section 4009 also specifies time
                                                                                           continue to operate under the proposed
of TEA–21, until the agency adopts a         periods for the FHWA to perform a
                                                                                           regulations unless they were to receive
final rule based upon this NPRM.             compliance review requested by an
   The parallelism between 49 U.S.C.                                                       another unsatisfactory rating after the
                                             unfit (i.e., unsatisfactory) rated motor
31144(c)(2) and (3) and the previous 49                                                    effective date of a final rule. The OIG
                                             carrier. For unsatisfactory carriers of
U.S.C. 31144(a)(1) leads the FHWA to                                                       also contends that some motor carriers
                                             passengers and HM, the follow-up
believe that Congress intended section                                                     of HM freight or of passengers continue
                                             compliance review must be completed
4009 to authorize the application of the                                                   to operate despite their unsatisfactory
                                             within 30 days of the carrier’s request;
principles embodied in section 15(b) of                                                    safety ratings, and are doing so illegally.
                                             for all other carriers rated
the MCSA of 1990 to the entire range of                                                    The FHWA intends to carefully track
                                             unsatisfactory, the follow-up review
motor carriers that operate CMVs in          must be completed within 45 days after        the safety of operations of the first group
interstate commerce. The only                the carrier’s request.                        to ensure that the traveling public is not
difference is that carriers of general          Under this proposal, the FHWA              exposed to increased risk from a motor
freight would have 60 days, while            would continue to perform                     carrier’s operation that has been
passenger and HM carriers have 45            administrative reviews under § 385.15         documented to have fallen below an
days, after the FHWA makes a                 and corrective-action reviews under           acceptable level of safety. The agency
determination of ‘‘unfitness’’ in which      § 385.17 for motor carriers regardless of     will bring swift and appropriate
to improve or cease operations. Because      their projected or final safety rating. The   enforcement actions against motor
the MCSA of 1990 explicitly referred to      current § 385.15(d) states that the           carriers that are operating in spite of
the three-part rating scheme used by the     FHWA will notify a petitioning motor          having been directed to cease their
FHWA (satisfactory, conditional,             carrier of the agency’s decision on           operations in interstate commerce.
unsatisfactory) and directed the FHWA        administrative review within 30 days          Rating Criteria
to prohibit unsatisfactory rated motor       after the agency receives a petition. The
carriers from transporting passengers        current § 385.17 does not specify a time         In the preamble of the 1997 final rule
and HM after the 45 day period, the          limit for the FHWA to perform a review        amending 49 CFR part 385 (62 FR
FHWA has concluded that the                  based upon a motor carrier’s request to       60035), the FHWA announced that it
functionally equivalent, though not          change a safety rating because of its         intended to review the entire rating
identical, requirements of section 4009      corrective actions, but it does allow the     system. On July 20, 1998, the agency
authorize, but do not require, the FHWA      agency to extend the period before a          published an advance notice of
to continue using its current safety         proposed safety rating becomes effective      proposed rulemaking (ANPRM) which,
fitness rating standards and                 for up to 10 days (§ 385.17(d)). The          among other things, began the process of
methodology. The FHWA is therefore           agency is proposing to revise its             creating a more performance-based
proposing to use an unsatisfactory rating    regulations and procedures, now to be         means of determining the safety fitness
assigned under the Safety Fitness Rating     codified at §§ 385.15(c) and 385.17(e), to    of motor carriers (63 FR 38788). The
Methodology (SFRM) in part 385 as a          give priority to reviews of motor carriers    FHWA is reviewing the comments to
determination of ‘‘unfitness.’’ This         with proposed or final unsatisfactory         that docket, along with the possibility
policy is congruent with that of section     safety ratings because of the prohibition     and practicality of incorporating
15(b) of the MCSA of 1990. There is          against operating in interstate commerce      alternative safety fitness information
nothing in the legislative history           with such safety ratings.                     that would improve the effectiveness of
concerning section 4009 of TEA–21 that          This priority handling would not           the rating system. For the present,
suggests the FHWA should implement a         extend to non-passenger and non-HM            however, the FHWA is proposing to
different approach.                          motor carriers with unsatisfactory safety     continue using the current SFRM
   The proposed prohibition on the           ratings that became final before the          included in appendix B to part 385 until
operation of CMVs would not be               effective date of the final rule because      it is ready to propose the elements of a
applied retroactively. Passenger and HM      the regulation would not be retroactive.      revised process.
44462             Federal Register / Vol. 64, No. 157 / Monday, August 16, 1999 / Proposed Rules

   The American Trucking Associations        Effect of Rating                                 The FHWA adopted ‘‘proposed’’
(ATA) and Truckers United for Safety            Since 1991, motor carriers receiving       ratings in 1997, and is retaining them in
had challenged the decision in the 1997      an unsatisfactory safety rating from the      this NPRM, in the interest of basic
final rule to use an amended version of      FHWA have been prohibited from using          fairness to motor carriers. Section 15(b)
the FHWA’s SFRM that the agency uses         CMVs to transport more than 15                of the MCSA of 1990 and section 4009
to make safety fitness determinations.       passengers, including the driver, or          of TEA–21 both require carriers to cease
That challenge was rejected by the U.S.      placardable quantities of HM, in              interstate operations 45 or 60 days after
Court of Appeals for the District of         interstate commerce. Furthermore, those       receiving an unsatisfactory rating or a
Columbia Circuit in American Trucking        motor carriers could not be used by           determination of unfitness. A final
Associations, Inc. v. United States          Federal agencies. These prohibitions          rating is public information which must
Department of Transportation, 166 F. 3d                                                    be released under the Freedom of
                                             and the procedures for applying them
374 (D.C. Cir. 1999).                                                                      Information Act (FOIA), Public Law 89–
                                             are contained in 49 CFR 385.13, which
   The FHWA is continuing its efforts to                                                   487, 80 Stat. 250, as amended; in fact,
increase the level of reliable safety data   implemented section 15(b) of the Motor
                                             Carrier Safety Act of 1990. The TEA–21        the FHWA posts final ratings on its
and other information needed to create                                                     Safety and Fitness Electronic Records
a more performance-based means of            provision expands the same prohibition,
                                             under virtually identical conditions, to      System (SAFER) web site [http://
determining a motor carrier’s safety                                                       www.safersys.org] and makes them
fitness. The FHWA conducted a                all other motor carriers, irrespective of
                                             their cargo, which are found by the           available through telephone inquiries to
demonstration project, the Commercial                                                      (800) 832–5660. An unsatisfactory rating
Vehicle Information System (CVIS),           FHWA to be unfit. These owners and
                                             operators may not operate CMVs in             can have an almost immediate impact
recently renamed the Performance and                                                       on business once it becomes public, yet
Registration Information System              interstate commerce beginning on the
                                             61st day after such fitness                   both the MCSA and TEA–21 provide
Management (PRISM) Program. It also                                                        carriers a substantial grace period after
produced a new safety risk assessment        determination.
                                                Despite the change in the language,        an unsatisfactory rating. In other words,
model, the Motor Carrier Safety Status                                                     the FOIA may defeat one of the essential
Measuring System (SAFESTAT). Both of         nothing in the amending provision
                                             would indicate any intention on the part      elements of the 1990 and 1998
these were described in the ANPRM of                                                       amendments by subjecting carriers to a
July 20, 1998. The FHWA plans to             of Congress to require the FHWA to
                                             change the effect of an unsatisfactory        serious, and potentially fatal, loss of
expand PRISM to as many as five new                                                        business before they have had a chance
States this year. However, today’s           rating applied to a motor carrier of
                                             passengers or placardable HM. Although        to improve their safety posture. The
proposed rulemaking action does not                                                        FHWA believes the purposes of these
reach these issues.                          it extends the prohibitions to all other
                                             motor carriers, section 4009 does not         statutes can best be reconciled by
Terms: ‘‘Motor Carrier’’ and ‘‘Owner or      require that another standard be              issuing ‘‘proposed’’ unsatisfactory and
Operator’’                                   applied. Consequently, the FHWA is            conditional safety ratings which are not
  Prior to the 1998 TEA–21 amendment,        proposing to require all other motor          releasable under the FOIA because they
49 U.S.C. 31144 applied to ‘‘owners and      carriers with a proposed unsatisfactory       do not yet constitute the agency’s final
operators of commercial motor vehicles,      safety rating to cease operations when        decision. The FHWA requests comment,
including persons seeking new or             that rating becomes final. As is already      however, on what harm would ensue if
additional operating authority as motor      the case with passenger and HM                the ‘‘proposed’’ unsatisfactory rating
carriers.’’ As amended, the section now      carriers, these other motor carriers          became public before a final
refers to these entities as ‘‘owner[s] or    would be given an appropriate period of       unsatisfactory rating were to be issued.
operator[s]’’ of commercial motor            time within which to improve that                Under the rules proposed today, a
vehicles, but not ‘‘motor carriers.’’        proposed rating.                              motor carrier warned by the FHWA that
Although no explanation is provided in                                                     its proposed rating is unsatisfactory
                                             Proposed Ratings; Effective Date of           would have an opportunity in the next
the committee reports, the FHWA
                                             Final Rating                                  45 or 60 days to demonstrate its
believes this was done to cure an
anomaly. Section 31144 was the only             One of the changes to 49 CFR part 385      renewed commitment to safety and
section in 49 U.S.C. chapter 311 which       made in the November 6, 1997, final           regulatory compliance, or to argue that
used the term ‘‘motor carrier;’’ it was      rule was the adoption of a ‘‘proposed’’       the FHWA made a mistake in assigning
not included in the definitions in           safety rating. A motor carrier is             that rating. A number of motor carriers
section 31132. The Motor Carrier Safety      informed of its proposed rating at the        have successfully used the 45-day grace
Act of 1984, from which chapter 311          end of a compliance review. If the            period to improve their ratings since the
was derived, used the jurisdictional         proposed rating is unsatisfactory, it         1997 rule went into effect. But if no
term ‘‘commercial motor vehicle.’’           becomes the final rating 45 days later (if    such improvements are forthcoming, the
‘‘Motor carrier’’ and ‘‘motor private        improvements are not forthcoming), and        carrier would be required to halt its
carrier’’ were defined separately in         the carrier must halt its transportation of   CMV operations in interstate commerce
those provisions of title 49 of the United   passengers or HM on the 46th day. The         the day after an unsatisfactory rating
States Code administered by the              45-day period after the proposed safety       becomes final (i.e., on the 46th or 61st
Interstate Commerce Commission; the          rating is announced provides the motor        day after the carrier was notified of the
definitions are now codified at 49 U.S.C.    carrier with an opportunity to assess its     proposed safety rating). The agency
13102. The FMCSRs have long treated          operations and request the FHWA to            would then post the final rating to the
owners and operators of CMVs as              reconsider the rating either because (1)      SAFER web site and make it available
‘‘motor carriers’’ (see 49 CFR 390.5). The   it believes the FHWA proposed an              by telephone. Although this procedure
regulatory text of 49 CFR part 385           erroneous rating, or (2) the motor carrier    requires carriers to shut down one day,
would continue to use the term ‘‘motor       has taken corrective actions so that its      rather than 46 or 61 days, after the final
carrier’’ as equivalent to ‘‘owners and      operations meet the safety standards          rating of unsatisfactory, the FHWA
operators’’ specified by amended             and factors specified in § 385.9 of the       believes the ‘‘proposed’’ safety rating
section 31144.                               FMCSRs.                                       followed by a 45- or 60-day grace period
                  Federal Register / Vol. 64, No. 157 / Monday, August 16, 1999 / Proposed Rules                          44463

achieves the same purpose as, and is         to happen frequently, but it does not        the OIG recommended that the FHWA
entirely consistent with, section 4009.      wish to penalize motor carriers for          perform follow-up visits and monitoring
   Subsection (c) of 49 U.S.C. 31144 also    delays not of their own making. The          of those motor carriers with a lower
provides discretionary power to the          extension would be allowed at the            than satisfactory safety rating. The OIG
FHWA to allow unsatisfactory motor           discretion of the Enforcement Program        recommended that these visits and
carriers that do not transport passengers    Manager in the FHWA Resource Center          monitoring take place at varying
or HM to operate for an additional 60        for the appropriate geographic area—the      intervals to ensure that safety
days, if the agency determines the motor     agency no longer has Regional offices.       improvements are sustained, or if safety
carrier is making a good faith effort to     The list of Resource Centers would           has deteriorated, that appropriate
improve its safety fitness. As noted         appear under § 390.27.                       sanctions are invoked. The FHWA has
above, the FHWA would not make a                                                          made a practice of monitoring the safety
final determination of unfitness in its      Other Rating Issues
                                                                                          performance of motor carriers under its
initial notification—the final                  The FHWA does not currently issue         regulatory jurisdiction, and to place
determination would occur at the end of      safety ratings to two categories of motor    special compliance program emphasis
the 45- or 60-day period. Reiterating its    carriers of passengers: (1) Non-business     upon those with performance outcomes
commitment to highway safety, and            private motor carriers of passengers,        (such as accident rates and vehicles and
responding to another comment by the         such as churches or social groups, and       drivers out-of-service rates that exceed
DOT OIG, the FHWA intends to                 (2) owners and operators of vehicles         thresholds set according to the type and
continue to provide careful, timely, and     designed to transport fewer than 16          volume of the operation) that indicate a
effective safety oversight of changes        passengers, including the driver, for        potential safety problem. The agency
made by these motor carriers as they         compensation. As to the first category,      will continue to devote its resources to
attempt to improve their safety ratings      the FHWA does not believe that               improve highway safety, and will
within the first 60-day period, and, if      Congress intended the agency to include      continue to work with its State partners
needed, during the second 60-day             this group, because the occasional           toward this goal.
period.                                      nature of the transportation these motor
   Section 31144(d) specifies the time       carriers provide does not readily lend       Docket Comments Concerning Section
limits for the FHWA to review motor          itself to safety fitness evaluation. These   4009
carriers’ compliance with regulatory         motor carriers are not required to              A few commenters to the July 20,
provisions that contributed to the fitness   maintain most of the records otherwise       1998, ANPRM concerning safety fitness
determination. For motor carriers of         mandated by the FMCSRs. However,             procedures addressed issues related to
passengers or HM, the review must be         they are still subject to many of the        section 4009 of TEA–21. We summarize
performed within 30 days of the              substantive regulations and to safety        their comments here.
carrier’s request. For all other motor       enforcement at roadside. The FHWA               The Oregon Department of
carriers, the FHWA must perform the          would continue its practice of not           Transportation, Motor Carrier
review within 45 days of the carrier’s       issuing a safety rating to this type of      Transportation Branch (Oregon), stated
request.                                     motor carrier.                               that motor carriers that pose an
   In the preamble to the August 16,            The second category of passenger          imminent danger to the public or
1991, interim final rule that                motor carrier is comprised mainly of         themselves should be prohibited from
implemented the provisions of the            limousine and van owners and                 operating. Oregon believes that 49 CFR
MCSA of 1990 (56 FR 40801, at 40802),        operators. These entities are currently      385.13 adequately addresses unfit motor
the FHWA said it would ‘‘make its            required to obtain operating authority       carriers of HM and passengers, and that
determination expeditiously because the      from the FHWA, but are not subject to        the prohibition that section 4009 would
‘unsatisfactory’ safety rating may well      most provisions of the FMCSRs because        impose on other motor carriers should
affect a motor carrier’s ability to          their vehicles do not qualify as             be implemented by including additional
continue in business. In the event the       ‘‘commercial motor vehicles’’ under 49       performance-based data in the rating
FHWA is unable to make its                   CFR 390.5. However, section 4008 of          methodology. That data might include
determination within the 45-day period,      TEA–21 changed part of the statutory         driver citations, driver out-of-service
the agency may conditionally suspend         definition of ‘‘commercial motor             violations, and vehicle size and weight
any ‘unsatisfactory’ safety rating and       vehicle’’ to include those designed or       violations.
rescind any related administrative order     used to transport ‘‘more than 8                 FHWA response. The FHWA will
for a period of up to 10 additional          passengers (including the driver) for        continue to use the authority in 49
calendar days.’’ The current regulation,     compensation’’ (49 U.S.C. 31132(1)(B)).      U.S.C. 521(b)(5)(A) to deal with
at 49 CFR 385.17(d), continues to allow      Motor carriers operating such vehicles       imminent hazards. (The implementing
for this additional time: ‘‘If the motor     would require safety fitness                 regulation is codified at 49 CFR 386.72,
carrier has submitted evidence that          determinations. Most of the FMCSRs           and is not included in today’s
corrective actions have been taken           (except parts 382, 383, 387, and a few       rulemaking activity.) That authority is
pursuant to this section and a final         other requirements) became applicable        limited, however, to extreme cases. The
determination cannot be made within          to these smaller passenger vehicles on       FHWA agrees that performance-based
the 45-day period, the period before the     June 9, 1999. The FHWA is considering        information, where available, would be
proposed safety rating becomes effective     exempting for six months the operation       valuable in making safety fitness
may be extended for up to 10 days at the     of these small passenger-carrying            determinations. We will address this
discretion of the Regional Director.’’ The   vehicles from all of the FMCSRs, to          issue in future rulemaking.
NPRM retains this provision (as              allow time for the completion of a              The Transportation Lawyers
§ 385.17(f)) because there may be            rulemaking on that issue.                    Association’s Committee on Federal
circumstances under which competing                                                       Agency Practice criticized what it
demands for FHWA staff time would            Motor Carriers With Less Than                considered the FHWA’s ‘‘repetitive
make it impossible to complete a review      Satisfactory Safety Ratings                  rulemakings on the same issue without
within the time limit specified by the         In its April 26, 1999 audit of the         new rules being developed.’’ It also
statute. The agency does not expect that     FHWA’s motor carrier safety program,         highlighted concerns with due process
44464                Federal Register / Vol. 64, No. 157 / Monday, August 16, 1999 / Proposed Rules

because safety ratings entail severe              fit’’ in section 31144, does not support       prohibitions. The CSS described its
economic ‘‘punishment’’ and the data              the interpretation urged on the agency         work for two Federal agency clients, the
upon which ratings are based are                  by the ATA.                                    Military Traffic Management Command
allegedly so erroneous as to be                      The National Tank Truck Carriers,           (MTMC) and the U.S. Postal Service
meaningless.                                      Inc. (NTTC) believes the safety rating         (USPS). According to CSS, the MTMC
   FHWA response. The FHWA                        system’s fundamental purpose is to             requires motor carriers to have a DOT
described in detail its rulemaking                provide an alert to the public, including      satisfactory safety rating in order to be
actions, and their background, in the             shippers, of the shortcomings of unsafe        considered for a contract to provide
July 20, 1998, ANPRM (63 FR 38788).               motor carriers. The NTTC also believes
                                                                                                 passenger transportation. The USPS, on
The safety rating process incorporates            the enforcement community should give
                                                                                                 the other hand, refuses to allow
due-process protections in §§ 385.15              priority attention to unsafe motor
                                                  carriers: the more the rating system           unsatisfactory-rated motor carriers to
and 385.17. The agency believes these
                                                  ‘‘singles out’’ the unsafe carrier, the        transport mail, but motor carriers rated
have proven to be adequate. Finally, the
FHWA is continually updating records              more responsive it will be to                  conditional, as well as unrated carriers,
and improving the quality and                     congressional intent.                          are eligible. Because of the FHWA’s
effectiveness of the information in its              Advocates for Highway and Auto              inability (due to resource constraints) to
Motor Carrier Management Information              Safety criticized what it considers the        rate all the motor carriers the USPS had
System (MCMIS) database. The agency               FHWA’s inadequate stewardship of               requested to be rated, CSS developed a
continues to receive more timely and              motor carrier safety, but did not offer        ‘‘DOT Equivalency Inspection Program’’
better quality data from its field staff          any comment on the contents of section         for the USPS. With the support of the
and its State partners.                           4009.                                          National Star Route Mail Contractors
   The FHWA is continuing to assess its              FHWA response. In TEA–21, Congress          Association, CSS inspected over 100
methods for assigning safety ratings to           provided the agency with specific              mail carriers and advised the USPS that
motor carriers. The agency recognizes             direction to prohibit all unfit motor          ‘‘over 80 percent of those contracted
that the consequences of an                       carriers—not only passenger and HM             postal carriers inspected could not meet
unsatisfactory safety rating are                  carriers—from operating in interstate          the FHWA’s minimums.’’ According to
extremely serious for motor carriers that         commerce. As indicated above, there is         CSS, the USPS reverted to its original
cannot or will not improve their                  nothing in the statute or legislative          position, excluding only those motor
commitment to safety. We acknowledge              history of this provision which suggests       carriers specifically required by statute
the need to exercise great care in                that Congress intended to require the
                                                                                                 to be excluded (i.e., those with
reviewing information that could result           FHWA to adopt a standard for
                                                                                                 unsatisfactory ratings from the FHWA).
in an unsatisfactory rating, but the              evaluating ‘‘fitness’’ that differs from the
                                                  current safety rating system in Part 385.         FHWA response. The USPS did not
statutory mandate is clear.
   The American Trucking Associations                The Department of California                provide comments to this docket, and
(ATA) stated that it supported Section            Highway Patrol (CHP) expressed a               since CSS did not describe the criteria
4009 of TEA–21, but went on to say:               concern with the 45-day period between         it used to assess the safety status of the
                                                  a motor carrier’s receipt of the FHWA’s        USPS contract motor carriers, it is
   We take issue, however, with how the           proposed safety rating and the time the        unclear whether the 80 percent that
agency has characterized the Congressional        rating becomes final. The CHP believes
mandate. In the subject notice, the agency                                                       failed the CSS program would also be
states that the prohibition on transportation
                                                  that allowing a motor carrier to continue      rated unsatisfactory under the FHWA’s
should apply to carriers with unsatisfactory      to operate would appear to defeat the          standards.
ratings. In fact, the Act did not use the term    purpose of the ratings, and also that a
                                                                                                    The Canadian Council of Motor
‘‘unsatisfactory rating’’ but instead             motor carrier’s corrective action taken
                                                                                                 Transport Administrators commented
deliberately used the term ‘‘not fit to           during the 45-day period could cause
operate.’’ * * * The industry believes this       the FHWA’s intended rating downgrade           that the TEA–21 prohibition against an
distinction is an important one. As stated        to become moot.                                unfit motor carrier’s transportation of
earlier, unsatisfactory compliance does not          FHWA response. The CHP appears to           any property would make the U.S.
always result in unsafe performance. In fact,     be concerned about the regulatory grace        approach similar to that of Canada.
some carriers who have received
                                                  period that the FHWA addressed in the             The Public Utilities Commission of
unsatisfactory safety ratings under the
current system have acceptable accident           November 6, 1997, final rule (62 FR            Ohio (PUCO) expressed concern that the
rates. Instead, the term ‘‘not fit to operate’’   60035, at 60039). The Motor Carrier            FHWA had not prepared cost-benefit
should be reserved for carriers whose             Safety Act of 1990 specified a 45 day          analyses for the ANPRM because the
performance is so poor that to allow them to      period before an unsatisfactory motor          FHWA had maintained that the issues
continue to operate would be a certain and        carrier was required to cease passenger        raised in the ANPRM did not constitute
substantial threat to highway safety.             or HM operations. Section 4009 of TEA–         ‘‘significant regulatory action.’’ The
Specifically, carriers with high accident rates   21 also requires this time period. The
who have failed to act on the opportunity to
                                                                                                 PUCO’s comments reflected its concern
                                                  previous regulations, as well as those         about potentially extensive changes to
improve should be placed in this category.
                                                  proposed today, are consistent with the        the safety fitness program and the
   FHWA response. As discussed above,             purpose of the statutes. As explained          current and future role of States in
the FHWA believes this proposed rule is           above, the FHWA believes motor                 conducting motor carrier safety
consistent with the statutory mandate.            carriers should not be penalized by            compliance reviews.
Congress used the term ‘‘unsatisfactory’’         having their proposed unsatisfactory
in the 1990 MCSA, and gave no                     ratings released during the time period           FHWA response. The FHWA used the
indication that it intended to require a          they are given to improve their                ANPRM to gather information as a
different result in TEA–21. Even the 45-          proposed ratings.                              prelude to a rulemaking. The ANPRM
day grace period for passenger and HM                Consolidated Safety Services, Inc.          did not propose specific new or revised
carriers was retained. Therefore, the             (CSS), a safety services provider,             regulations, therefore the FHWA did not
change in wording, from                           expressed some reservation about the           have the basis to perform detailed
‘‘unsatisfactory’’ in section 5113 to ‘‘not       practical effects of the statute’s             regulatory analyses at that time.
                   Federal Register / Vol. 64, No. 157 / Monday, August 16, 1999 / Proposed Rules                               44465

Federal Government Agency Use of              passenger and HM carriers cease                should continue to examine the docket
Unsatisfactory Rated Motor Carriers           conducting those operations in                 for new material.
   Since 1991, any department, agency,        interstate commerce 45 days after they
                                                                                             Executive Order 12866 (Regulatory
or instrumentality of the United States       received an unsatisfactory rating.
                                                                                             Planning and Review) and DOT
Government has been prohibited from           Section 4009 of TEA–21 clearly                 Regulatory Policies and Procedures
using a passenger or HM motor carrier         authorizes the FHWA to take the same
                                              course in shutting down all other                 The FHWA has determined that this
with an unsatisfactory safety rating.                                                        proposed regulatory action is significant
Section 4009 of TEA–21 extends this           carriers 60 days after they receive an
                                              unsatisfactory rating. The agency is           within the meaning of Executive Order
prohibition to cover all motor carriers                                                      12866 and under the regulatory policies
found to be unfit. As written, the            undertaking a separate rulemaking
                                              action (see RIN 2125–AE37) to explore          and procedures of the DOT because of
prohibition applies to the Federal                                                           the substantial public interest in the
agency and not to the motor carrier.          means to improve its safety fitness
                                              determination process in relation to its       provision of safe interstate motor freight
   The FHWA would continue to advise                                                         and passenger transportation. This
a motor carrier of its proposed safety        overall safety compliance and
                                              enforcement program, as well as the            NPRM was reviewed by the Office of
rating as soon as possible after the                                                         Management and Budget. This proposed
FHWA’s compliance review, but not             application of those determinations
                                              within the truck and bus industries.           rule would require any motor carrier in
later than 30 days afterwards. At the end                                                    interstate commerce that the FHWA
of the 45- or 60-day period (or longer,          The proposed rule would only apply
                                              prospectively. Motor carriers which are        rates unsatisfactory to cease providing
if extended), the proposed rating would                                                      CMV transportation after a grace period
become the motor carrier’s final safety       currently rated unsatisfactory, which do
                                              not transport passengers or HM, would          of 45 days (for HM and passenger
rating if the FHWA has no basis to                                                           operations) or 60 days (for all other
change it. On the effective date of a final   not be affected unless the FHWA issued
                                              an unsatisfactory safety rating in a           motor carriers). A motor carrier would
unsatisfactory safety rating, Federal                                                        be allowed to commence those
government agencies will be precluded         follow-up compliance review conducted
                                              on or after the rule’s effective date. For     operations again only if the FHWA
from using, or continuing to use, these                                                      determines its safety rating is no longer
motor carriers’ transportation services.      the non-passenger and non-HM motor
                                              carriers that receive a notice of a            unsatisfactory. Although these
Changes to FHWA Organizational                proposed unsatisfactory safety rating on       requirements have been in place since
Structure                                     or after the effective date of a final rule,   1991 for passenger and HM motor
                                              the regulation would provide 60 days,          carriers, this is the first time they would
   The FHWA has recently undergone a                                                         be applied to other motor carriers.
significant reorganization of its field and   with the possibility of an additional 60
                                                                                                Motor carriers of passengers and of
headquarters offices. The nine FHWA           days, to challenge the rating, or to
                                                                                             placardable quantities of HM would not
Regions have been eliminated and four         demonstrate improvement in their
                                                                                             be subject to new sanctions for
Resource Centers have been established        safety practices.
                                                                                             noncompliance as a result of this
that provide support to the FHWA                 The FHWA will carefully consider
                                                                                             regulatory action. In fact, under the new
Division offices located in each State.       comments it receives to evaluate
                                                                                             regulations, the FHWA would have to
   In headquarters, many of the               whether any changes to this proposal
                                                                                             respond to any requests for a follow-up
functions of the former Office of Safety      are required. Because U.S. Government
                                                                                             review of an unsatisfactory safety rating
and Technology and Office of Field            agencies would be precluded from
                                                                                             within 30 days—the current regulations
Operations under the Associate                contracting with unfit motor carriers for
                                                                                             require this to be accomplished within
Administrator for Motor Carriers have         non-HM freight transportation service,
                                                                                             45 days. This revision is required by 49
been combined into a new Office of            we are working informally with the
                                                                                             U.S.C. 31144(d)(2) and (3).
Motor Carrier Enforcement. The                federal agencies that utilize substantial         As of December 31, 1998, the FHWA’s
decision regarding safety fitness has         amounts of contracted transportation           MCMIS listed 477,486 motor carriers as
been elevated to the Program Manager          (the United States Postal Service, the         active. Summary statistics of these
for Motor Carrier and Highway Safety,         General Services Administration, and           motor carriers follow:
the senior manager of this operating unit     the Military Traffic Management                   Motor carriers of passengers: 10,728
of the FHWA (the agency no longer uses        Command) to advise them concerning             in MCMIS 3,242 rated (23 percent), 33
the title Associate Administrator). We        this proposed rulemaking. The FHWA             rated unsatisfactory (1 percent of rated
have revised the appropriate sections of      particularly invites motor carriers who        passenger carriers, 0.24 percent of all
part 385 and section 390.27 to reflect        provide this transportation to                 passenger carriers).
these changes in organizational               government agencies to comment on                 Motor carriers of HM: 41,723 in
structure and titles.                         this proposed rulemaking.                      MCMIS 23,447 rated (56 percent), 565
                                                 All comments will be available for          rated unsatisfactory (2.4 percent of rated
Rulemaking Analyses and Notices               examination using the docket number            HM carriers, 1.4 percent of all HM
  The proposed changes to 49 CFR part         appearing at the top of this document in       carriers).
385 are a straightforward                     the docket room at the above address.             Motor carriers of property, non-HM:
implementation of the amendments to           The FHWA will file comments received           421,793 in MCMIS 102,517 rated (24
49 U.S.C. 31144 made by section 4009          after the comment closing date in the          percent), 8,999 rated unsatisfactory (8.8
of TEA–21. The regulatory changes, like       docket and will consider late comments         percent of rated carriers, 2 percent of all
the statutory amendments, simply              to the extent practicable. The FHWA            motor carriers of non-HM property).
expand a prohibition on interstate            may, however, issue a final rule at any           The number of motor carriers with
operations, which had previously              time after the close of the comment            unsatisfactory safety ratings is a small
applied only to HM and passenger              period. In addition to late comments,          fraction of all the rated motor carriers in
carriers, to all other motor carriers.        the FHWA will also continue to file, in        MCMIS, and a minute fraction of the
Section 15(b) of the MCSA of 1990             the docket, relevant information               motor carriers of passengers and of HM.
added to the FHWA’s existing safety           becoming available after the comment           Although a larger number of motor
rating a mandate to require that              closing date, and interested persons           carriers of non-HM freight in MCMIS
44466                        Federal Register / Vol. 64, No. 157 / Monday, August 16, 1999 / Proposed Rules

have unsatisfactory safety ratings, the                             Since there is no requirement for motor         revising the safety rating, this rating
FHWA believes this is the result of two                             carriers to notify the FHWA of a change         remains on file.
factors. First, until this time, an                                 in status, they continue to be counted as         The following summary gives a recent
unsatisfactory rating did not prohibit a                            ‘‘active’’ interstate motor carriers. The       history of follow-up compliance reviews
non-HM-freight motor carrier from                                   MCMIS contains a motor carrier’s last           (CRs) on motor carriers performed by
operating in interstate commerce.                                   rating of record, and, unless the motor         the FHWA in fiscal year 1998. The
Second, many motor carriers in MCMIS                                carrier requested the FHWA to reassess          columns represent the number of power
may have ceased operating in interstate                             its safety posture with a view toward
commerce or are no longer in business.                                                                              units operated by the motor carrier.

                        TABLE 1.—FOLLOW UP COMPLIANCE REVIEWS, FISCAL YEAR 1998 (10/1/1997–09/30/1998)
                                                                      1–6        7–20        21–100       101–500   501–1000    1001+       Total        Percent

Property carriers:
    Start Unsat ................................................         113        101           53            5          0            0      272         100.0
    End Sat .....................................................         40         32           13            1          0            0       86          31.6
    End Cond ..................................................           33         33           19            2          0            0       87          32.0
    End Unsat .................................................           19         22           15            1          0            0       57          21.0
    End Not Rated ..........................................              21         14            6            1          0            0       42          15.4
HM carriers:
    Start Unsat ................................................            22          59        51           17          1            1      151          100.0
    End Sat .....................................................           12          23        22            7          0            0       64           42.4
    End Cond ..................................................              7          26        23            8          1            1       66           43.7
    End Unsat .................................................              1          10         6            2          0            0       19           12.6
    End Not Rated ..........................................                 2           0         0            0          0            0        2            1.3
Pass. carriers:
    Start Unsat ................................................            19          12            3         0          2            0           36     100.0
    End Sat .....................................................           17           7            2         0          0            0           26      72.2
    End Cond ..................................................              2           5            1         0          1            0            9      25.0
    End Unsat .................................................              0           0            0         0          1            0            1       2.8
    End Not Rated ..........................................                 0           0            0         0          0            0            0       0.0



  For example, in fiscal year 1998, 272                             that did not achieve improved ratings           the initial 60-day period for up to 60
re-rated motor carriers of property (non-                           represent the very few that have elected        additional days.
HM) had received an initial                                         not to devote resources to safety and              Based upon its analysis of statistical
unsatisfactory safety rating. All but 57 of                         regulatory compliance, both of which            information concerning motor carriers’
them received a conditional or                                      should have been cornerstones of any            improvement in their safety ratings, the
satisfactory safety rating from the                                 responsible operation. However, the             FHWA believes that the vast majority of
FHWA resulting from follow-up reviews                               FHWA is unable to determine the                 motor carriers interested in continuing
performed during the year; the 42 motor                             precise impact this rulemaking would            their operations would be able to do so.
carriers that ended the year in the ‘‘not                           have on non-HM interstate motor                 The agency believes that any potential
rated’’ category were no longer                                     carriers of property. As of late 1998, the      adverse economic impact to those
operating in interstate commerce.                                   FHWA has provided safety ratings to             relatively few motor carriers who are
Supplemental Item 1 of this docket                                  approximately 25 percent of those motor         unwilling or unable to demonstrate an
contains summary statistics and                                     carriers identified in the MCMIS as             improvement in the safety of their
detailed data from calendar years 1994–                             active. The FHWA is interested in any           operations within the 60 to 120 day
1998 for passenger, HM, and non-HM                                  information that will assist the agency         period specified in TEA–21 is entirely
property motor carriers.                                            in determining the economic impact of           consistent with the intent of the statute.
  The FHWA anticipates that this                                    this proposed rule on this portion of the       The FHWA believes the traveling public
rulemaking will have minimal economic                               motor carrier industry and any                  would derive a safety benefit from the
impact on the interstate motor carrier                              additional impacts on its customers.            removal from the Nation’s highways of
industry. Based upon the statistics on                                 With respect to motor carriers of non-       CMVs operated in interstate commerce
follow-up compliance reviews                                        HM freight, a small number may be               by those few motor carriers found to be
conducted during calendar years 1994                                adversely affected by this regulatory           unfit to operate them safely. In addition,
through 1998, the FHWA expects that                                 action. A motor carrier of non-HM               shippers of non-HM freight would
between 50 and 100 motor carriers                                   freight that receives a notice of a             derive direct and indirect economic
might not improve an initial proposed                               proposed unsatisfactory safety rating           gains through the improved safety and
unsatisfactory safety rating. These motor                           would be prohibited from providing              corresponding efficiency of their
carriers would be required to cease their                           transportation in interstate commerce           commercial motor freight
operations in interstate commerce until                             starting 61 days from the date of that          transportation.
they could demonstrate to the FHWA                                  notice, unless the FHWA revises that               This proposed rule would only affect
that they had improved the safety of                                rating as the result of (1) an                  the operations of the small number of
their operations. The vast majority of                              administrative review or (2) a                  motor carriers determined to be unfit to
motor carriers with unsatisfactory safety                           demonstration by the motor carrier that         operate CMVs based on the frequency
ratings have been able to achieve                                   it has taken corrective action. If the          and severity of their safety violations,
improved ratings during follow-up CRs                               FHWA determines a motor carrier is              poor outcomes of roadside inspections,
performed by the FHWA and its State                                 making a good faith effort to improve its       and accident experience. The number of
partners. The very few motor carriers                               safety posture, the agency could extend         motor carriers of non-HM freight that do
                               Federal Register / Vol. 64, No. 157 / Monday, August 16, 1999 / Proposed Rules                                                      44467

not improve their safety rating from                                         risk to the traveling public because of            grants will not be materially affected by
unsatisfactory is expected to continue to                                    their demonstrated refusal, or inability,          this regulatory action.
be small—fewer than 100 motor carriers                                       to comply with the FMCSRs. This
                                                                                                                                Regulatory Flexibility Act
per year. The FHWA believes the                                              proposed rule would provide the FHWA
number of motor carriers potentially                                         with an essential tool to take prompt                 In compliance with the Regulatory
subject to this level of impact is much                                      and effective action against these motor           Flexibility Act (5 U.S.C. 601–612) the
smaller than the number of motor                                             carriers.                                          FHWA has evaluated the effects of this
carriers that ceases operations as a result                                     This rulemaking would not result in             proposed rulemaking on small entities.
of normal economic fluctuations. This                                        inconsistency or interference with                 The motor carriers to be economically
rulemaking reinforces the importance of                                      another agency’s actions or plans. It              impacted by this rulemaking would be
complying with the safety regulations                                        would, however, implement a specific               those who are rated unsatisfactory and
by putting into place a mechanism to                                         congressional directive prohibiting                fail to take appropriate actions to
force unfit motor carriers to improve                                        Federal agencies from using any motor              improve their rating. As of March, 1999,
their operational safety. There are no                                       carrier with an unsatisfactory safety              some 79 percent of the 483,385 active
new costs associated with this                                               rating to provide ‘‘any transportation             motor carriers in MCMIS were in the
rulemaking and the overall adverse                                           service.’’ Therefore, all Federal agencies         ‘‘very small’’ or ‘‘small’’ category (less
economic effects would be minimal.                                           that contract for motor carrier passenger          than 21 power units). The FHWA’s
   This rulemaking, if adopted, would                                        or freight transportation in CMVs must             statistical information contained in
allow the FHWA to require that those                                         review the safety ratings of new and               MCMIS indicates that relatively few
few motor carriers of non-HM freight                                         prospective motor carrier contractors.             small motor carriers of passengers or
that cannot or will not improve their                                        The FHWA believes that the United                  HM have received unsatisfactory safety
safety performance above the level that                                      States Postal Service, the General                 ratings since 1994, the earliest date for
produced an unsatisfactory safety rating,                                    Services Administration, and the                   which information is readily available,
to cease their operations in interstate                                      Military Traffic Management Command                and fewer still did not improve their
commerce. The FHWA believes that                                             are the primary agencies affected; the             safety ratings based upon the FHWA’s
removing these motor carriers from the                                       FHWA is working with these agencies to             follow-up compliance reviews.
public highways will provide a very                                          solicit their views on this rulemaking                The following tables show statistics
important, although unquantifiable,                                          action.                                            for follow-up compliance reviews of
safety benefit. The agency believes these                                       The FHWA believes that the rights               motor carriers of property (non-HM) for
motor carriers pose a significant safety                                     and obligations of recipients of Federal           calendar years 1994 through 1998.

              TABLE 2.—MOTOR CARRIERS OF PROPERTY INITIALLY RATED UNSATISFACTORY, BY NUMBER OF DRIVERS
                                                                                                1–4        5–19        20–49     50–99       100–299    300+       Total

CY   94   ...................................................................................     475         293          89         36          19           7       919
CY   95   ...................................................................................     196         204         109         35          15           2       561
CY   96   ...................................................................................     158         208         102         30          11           6       515
CY   97   ...................................................................................      94         168          54         16           9           0       341
CY   98   ...................................................................................      81         152          46          7           4           0       290


          TABLE 3: MOTOR CARRIERS OF PROPERTY STARTING AND ENDING UNSATISFACTORY, BY NUMBER OF DRIVERS
                                                                                                1–4        5–19        20–49     50–99       100–299    300+       Total

CY   94   ...................................................................................         37          41       17            5         3           0       103
CY   95   ...................................................................................         23          24       21            9         1           0        78
CY   96   ...................................................................................         17          37       14            3         1           0        72
CY   97   ...................................................................................          5           7        3            2         0           0        17
CY   98   ...................................................................................         15          28        9            3         1           0        56



  Between 81 and 475 motor carriers of                                       have affected their ability to operate in          private sector, of $100 million or more
property that employed between 1 and                                         interstate commerce. There is no reason            in any one year (2 U.S.C 1531 et seq.).
4 drivers began a calendar year with an                                      to believe that this proposed regulatory
                                                                                                                                Executive Order 12988 (Civil Justice
unsatisfactory safety rating. By the end                                     action would increase those impacts.
                                                                                                                                Reform)
of the calendar year, all but between 5                                        Therefore, the FHWA certifies that
and 37 had improved their safety rating.                                     this regulatory action would not have a               This action meets applicable
During that same period, between 152                                         significant economic impact on a                   standards in sections 3(a) and 3(b)(2) of
and 293 motor carriers of property that                                      substantial number of small entities.              Executive Order 12988, Civil Justice
employed between 5 and 19 drivers                                                                                               Reform, to minimize litigation,
                                                                             Unfunded Mandates Reform Act of                    eliminate ambiguity, and reduce
began the calendar year with an
                                                                             1995 and Executive Order 12875                     burden.
unsatisfactory safety rating. All but
                                                                             (Enhancing the Intergovernmental
between 7 and 37 had improved their
                                                                             Partnership)                                       Executive Order 13045 (Protection of
safety rating by the end of the year. As
                                                                                                                                Children)
long as these motor carriers held (or                                          This proposed rule would not impose
were able to improve) their safety                                           a Federal mandate resulting in the                   We have analyzed this proposal under
ratings to conditional or satisfactory,                                      expenditure by State, local, or tribal             Executive Order 13045, ‘‘Protection of
§ 385.13 of this proposed rule would not                                     governments, in the aggregate, or by the           Children from Environmental Health
44468              Federal Register / Vol. 64, No. 157 / Monday, August 16, 1999 / Proposed Rules

Risks and Safety Risks.’’ This proposed       Paperwork Reduction Act                          requirements of this subchapter, except
rule is not economically significant and        This proposed action would not                 non-business private motor carriers of
does not concern an environmental risk        involve an information collection that is        passengers and motor carriers
to health or safety that would                subject to the requirements of the               conducting for-hire operations of
disproportionately affect children.           Paperwork Reduction Act of 1995, 44              passenger CMVs with a capacity of 8–
                                              U.S.C. 3501–3520.                                15 persons, including the driver.
Executive Order 12630 (Taking of                                                                 3. Revise § 385.11 to read as follows:
Private Property)                             National Environmental Policy Act
                                                                                               § 385.11 Notification of safety fitness
   This proposed rule would implement           The agency has analyzed this                   determination.
a statutory mandate to prohibit               proposal for the purpose of the National            (a) The FHWA will provide a motor
interstate motor carrier operations found     Environmental Policy Act of 1969 (42             carrier written notice of any rating
to be unsafe and therefore unfit. Motor       U.S.C. 4321 et seq.) and has determined          resulting from a safety fitness review as
carriers can avoid all of the implications    that this action would not have an               soon as practicable, but not later than 30
of an unsatisfactory safety rating simply     adverse effect on the quality of the             days after the review. The notice will
by complying with the FMCSRs.                 environment.                                     take the form of a letter issued from the
Furthermore, motor carriers with a                                                             FHWA’s headquarters office and will
proposed unsatisfactory safety rating         Regulatory Identification Number
                                                                                               include a list of FMCSR and HMR
would have at least 45 or 60 days,              A regulatory identification number
                                                                                               compliance deficiencies which the
depending on the type of operation, to        (RIN) is assigned to each regulatory
                                                                                               motor carrier must correct.
correct deficiencies identified by the        action listed in the Unified Agenda of              (b) If the safety rating is ‘‘satisfactory’’
FHWA before halting operations in             Federal Regulations. The Regulatory              or improves a previous ‘‘unsatisfactory’’
interstate commerce. Finally, even if a       Information Service Center publishes             safety rating, it is final and becomes
motor carrier were to suspend its             the Unified Agenda in April and                  effective on the date of the notice.
operations, it can resume operations by       October of each year. The RIN contained             (c) In all other cases, a notice of a
correcting its deficiencies, coming into      in the heading of this document can be           proposed safety rating will be issued. It
compliance with the FMCSRs, and               used to cross reference this action with         becomes the final safety rating after the
demonstrating these improvements to           the Unified Agenda.                              following time periods:
the FHWA. The FHWA therefore                  List of Subjects                                    (1) For motor carriers transporting
certifies that this rule has no takings                                                        hazardous materials in quantities
implications under the Fifth                  49 CFR Part 385                                  requiring placarding or transporting
Amendment or Executive Order 12630,             Administrative practice and                    passengers by CMV—45 days after the
Governmental Actions and Interference         procedure, Highway safety, Motor                 date of the notice.
with Constitutionally Protected Property      carriers, Motor vehicle safety, Reporting           (2) For all other motor carriers
Rights.                                       and recordkeeping requirements.                  operating CMVs—60 days after the date
Executive Order 12612 (Federalism                                                              of the notice.
                                              49 CFR Part 390                                     (d) A proposed safety rating of
Assessment)
                                                 Highway safety, Intermodal                    ‘‘unsatisfactory’’ is a notice to the motor
   This action has been analyzed in           transportation, Motor carriers, Motor            carrier that the FHWA has made a
accordance with the principles and            vehicle safety, Reporting and                    preliminary determination that the
criteria contained in Executive Order         recordkeeping requirements.                      motor carrier is ‘‘unfit’’ to continue
12612. The FHWA has determined this             Issued on: August 6, 1999.                     operating in interstate commerce, and
proposed rule does not have sufficient        Kenneth R. Wykle,
                                                                                               that the prohibitions in § 385.13 will be
federalism impacts to warrant the                                                              imposed after 45 or 60 days if necessary
                                              Federal Highway Administrator.
preparation of a Federalism Assessment.                                                        safety improvements are not made.
   These proposed changes to the                In consideration of the foregoing, the            (e) A motor carrier may request the
FMCSRs would not directly preempt             FHWA proposes to amend title 49, Code            FHWA to perform an administrative
any State law or regulation. They would       of Federal Regulations, Chapter III, parts       review of a proposed or final safety
not impose additional costs or burdens        385 and 390 as set forth below:                  rating. The process and the time limits
on the States. Although section 4009 of                                                        are described in § 385.15.
                                              PART 385—SAFETY FITNESS                             (f) A motor carrier may request a
TEA–21 requires the FHWA to revise            PROCEDURES
part 385 of the FMCSRs, States are not                                                         change to a proposed or final safety
required to adopt part 385 as a                 1. Revise the authority citation for           rating based upon its corrective actions.
condition for receiving Motor Carrier         part 385 to read as follows:                     The process and the time limits are
Safety Assistance Program (MCSAP)                                                              described in § 385.17.
                                                Authority: 49 U.S.C. 104, 504, 521(b)(5)(A),
grants. Also, this action would not have                                                          4. Revise § 385.13 to read as follows:
                                              31136, 31144, and 31502; and 49 CFR 1.48.
a significant effect on the States’ ability     2. Revise § 385.1 to read as follows:          § 385.13 Unsatisfactory rated motor
to execute traditional State                                                                   carriers; prohibition on transportation;
governmental functions.                       § 385.1   Purpose and scope.                     ineligibility for Federal contracts.
Executive Order 12372                            (a) This part establishes the FHWA’s             (a) A motor carrier rated
(Intergovernmental Review)                    procedures to determine the safety               ‘‘unsatisfactory’’ is prohibited from
                                              fitness of motor carriers, to assign safety      operating a CMV. Information on motor
  Catalog of Domestic Assistance              ratings, to direct motor carriers to take        carriers, including their most current
Program Number 20.217, Motor Carrier          remedial action when required, and to            safety rating, is available from the
Safety. The regulations implementing          prohibit motor carriers receiving a safety       FHWA on the internet at http://
Executive Order 12372 regarding               rating of ‘‘unsatisfactory’’ from                www.safersys.org, or by telephone,
intergovernmental consultation on             operating a CMV.                                 (800) 832–5660.
Federal programs and activities do not           (b) The provisions of this part apply            (1) Motor carriers transporting
apply to this program.                        to all motor carriers subject to the             hazardous materials in quantities
                    Federal Register / Vol. 64, No. 157 / Monday, August 16, 1999 / Proposed Rules                             44469

requiring placarding, and motor carriers      rating. If the motor carrier does not        or hazardous materials. If the motor
transporting passengers in a CMV, are         provide the information requested, or        carrier has submitted evidence that
prohibited from operating a CMV               does not attend the conference, the          corrective actions have been taken
beginning on the 46th day after               FHWA may dismiss its request for             pursuant to this section and the FHWA
receiving the FHWA’s notice of                review.                                      cannot make a final determination
proposed ‘‘unsatisfactory’’ rating.              (e) The FHWA will notify the motor        within the 45-day period, the period
   (2) All other motor carriers rated after   carrier in writing of its decision           before the proposed safety rating
[date 30 days after the date of               following the administrative review.         becomes effective may be extended for
publication of the final regulations in       The FHWA will complete its review:           up to 10 days at the discretion of the
the Federal Register] are prohibited             (1) Within 30 days after receiving a      FHWA.
from operating a CMV beginning on the         request from a hazardous materials or           (g) The FHWA may allow a motor
61st day after the motor carrier receives     passenger motor carrier that has             carrier with a proposed rating of
the FHWA’s notice of proposed                 received a proposed or final                 ‘‘unsatisfactory’’ (except those
‘‘unsatisfactory’’ rating. If the FHWA        ‘‘unsatisfactory’’ safety rating.            transporting passengers in CMVs or
determines the motor carrier is making           (2) Within 45 days after receiving a      placardable quantities of hazardous
a good-faith effort to improve its safety     request from any other motor carrier         materials) to continue to operate in
fitness, the FHWA may allow the motor         that has received a proposed or final        interstate commerce for up to 60 days
carrier to operate for up to 60 additional    ‘‘unsatisfactory’’ safety rating.            beyond the 60 days specified in the
days.                                            (f) The decision constitutes final        proposed rating, if the FHWA
   (b) A Federal agency must not use a        agency action.                               determines that the motor carrier is
motor carrier that holds a                       (g) Any motor carrier may request         making a good faith effort to improve its
‘‘unsatisfactory’’ rating to transport        improvement in the safety rating under       safety status. This additional period
passengers or to transport hazardous          the provisions of § 385.17.                  would begin the 61st day after the date
materials in quantities requiring                6. Revise § 385.17 to read as follows:    of the proposed ‘‘unsatisfactory’’ rating.
placarding in a CMV.                                                                          (h) If the FHWA determines that the
                                              § 385.17 Change to safety rating based
   (c) A Federal agency must not use a        upon corrective actions.                     motor carrier has taken the corrective
motor carrier for other CMV                                                                actions required and that its operations
transportation if that carrier holds an          (a) A motor carrier that has taken
                                                                                           currently meet the safety standard and
‘‘unsatisfactory’’ rating which became        action to correct the deficiencies that
                                                                                           factors specified in §§ 385.5 and 385.7,
effective on or after [date 30 days after     resulted in a proposed or final rating of
                                                                                           the agency will notify the motor carrier
the date of publication of the final          ‘‘conditional’’ or ‘‘unsatisfactory’’ may
                                                                                           in writing of its upgraded safety rating.
regulations in the Federal Register].         request a rating change at any time.            (i) If the FHWA determines that the
   5. Revise § 385.15 to read as follows:        (b) A motor carrier must make this
                                                                                           motor carrier has not taken all the
                                              request in writing to the FHWA
                                                                                           corrective actions required, or that its
§ 385.15   Administrative review.             Resource Center for the geographic area
                                                                                           operations still fail to meet the safety
   (a) A motor carrier may request the        where the carrier maintains its principal
                                                                                           standards and factors specified in
FHWA to conduct an administrative             place of business. The addresses and
                                                                                           §§ 385.5 and 385.7, the agency will
review if it believes the FHWA has            geographical boundaries of the Resource
                                                                                           notify the motor carrier in writing.
committed an error in assigning its           Centers are listed in § 390.27.                 (j) Any motor carrier whose request
proposed or final safety rating.                 (c) The motor carrier must base its
                                                                                           for change is denied in accordance with
   (b) The motor carrier’s request must       request upon evidence that it has taken
                                                                                           paragraph (i) of this section may request
explain the error it believes the FHWA        corrective actions and that its operations
                                                                                           administrative review under the
committed in issuing the safety rating.       currently meet the safety standards and
                                                                                           procedures of § 385.15. The motor
The motor carrier must include a list of      factors specified in §§ 385.5 and 385.7.
                                                                                           carrier must make the request within 45
all factual and procedural issues in          The request must include a written
                                                                                           days of the denial of the request for
dispute, and any information or               description of corrective actions taken,
                                                                                           rating change. If the proposed rating has
documents that support its argument.          and other documentation the carrier
                                                                                           become final, it shall remain in effect
   (c) The motor carrier must submit its      wishes the FHWA to consider.
                                                                                           during the period of any administrative
request in writing to the FHWA,                  (d) The FHWA will make a final
                                                                                           review.
Program Manager, Office of Motor              determination on the request for change
Carrier and Highway Safety, 400               based upon the documentation the             PART 390—FEDERAL MOTOR
Seventh Street, SW., Washington DC            motor carrier submits, and any               CARRIER SAFETY REGULATIONS;
20590.                                        additional relevant information.             GENERAL
   (1) If a motor carrier has received a         (e) The FHWA will perform reviews
notice of a proposed ‘‘unsatisfactory’’       of requests made by motor carriers with        7. The authority citation for part 390
rating, it should submit its request          a proposed or final ‘‘unsatisfactory’’       continues to read as follows:
within 15 days from the date of the           safety rating in the following time            Authority: 49 U.S.C. 13301, 13902, 31132,
notice.                                       periods after the motor carrier’s request:   31133, 31136, 31502, 31504; sec. 204 of Pub.
   (2) A motor carrier must make a               (1) Within 30 days for motor carriers     L. 104–88, 109 Stat. 803, 941 (49 U.S.C. 701
request for an administrative review          transporting passengers in CMVs or           note); and 49 CFR 1.48.
within 90 days of the date of the             placardable quantities of hazardous            8. Revise § 390.27 to read as follows:
proposed or final safety rating issued by     materials.
the FHWA under the provisions of                 (2) Within 45 days for all other motor    § 390.27 Locations of motor carrier and
§ 385.11, or within 90 days after denial      carriers.                                    highway safety resource centers.
of a request for a change in rating under        (f) The filing of a request for change      The following table sets forth the
§ 385.17(i).                                  to a proposed or final safety rating         locations and territories for the four
   (d) The FHWA may ask the motor             under this section does not stay the 45-     resource centers that are established to
carrier to submit additional data and         day period specified in § 385.13(a)(1) for   provide support to the FHWA division
attend a conference to discuss the safety     motor carriers transporting passengers       offices located in each State:
44470                      Federal Register / Vol. 64, No. 157 / Monday, August 16, 1999 / Proposed Rules

   Resource center                                      Territory included                                                 Location of office

Eastern .....................   CT, DC, DE, MA, MD, ME, NJ, NH, NY, PA, PR, RI, VA,                     City Crescent Building, #10 South Howard Street, Suite
                                  VT, WV.                                                                 4000, Baltimore, MD 21201–2819.
Midwestern ...............      IA, IL, IN, KS, MI, MO, MN, NE, OH, WI ..............................   19900 Governors Drive, Suite 210, Olympia Fields, IL
                                                                                                          60461–1021.
Southern ...................    AL, AR, FL, GA, KY, LA, MS, NC, NM, OK, SC, TN, TX ....                 61 Forsyth Street, SW, Suite 17T75, Atlanta, GA 30303–
                                                                                                          3104.
Western ....................    American Samoa, AK, AZ, CA, CO, Guam, HI, ID, Mariana                   201 Mission Street, San Francisco, CA 94105.
                                 Islands, MT, ND, NV, OR, SD, UT, WA, WY.



[FR Doc. 99–20905 Filed 8–13–99; 8:45 am]                    appointment, during normal business                      LeBlond et al., in 1994 described
BILLING CODE 4910–22–P                                       hours at the above address.                           Carex lutea from specimens collected in
                                                             FOR FURTHER INFORMATION CONTACT: Ms.                  1992 by R. J. LeBlond, B. A. Sorrie, A.
                                                             Nora A. Murdock at the above address                  A. Reznicek, and S. A. Reznicek in
                                                             (828/258–3939, extension 231).                        Pender County, North Carolina. It is the
DEPARTMENT OF THE INTERIOR                                                                                         only member of the Carex section
                                                             SUPPLEMENTARY INFORMATION:
Fish and Wildlife Service                                                                                          Ceratocystis found in the southeastern
                                                             Background                                            United States.
50 CFR Part 17                                                  Carex lutea (LeBlond) is a perennial                  Carex lutea grows in sandy soils
                                                             member of the sedge family                            overlying coquina limestone deposits,
RIN 1018–AF68                                                (Cyperaceae) known only from North                    where the soil pH is unusually high for
                                                             Carolina. Fertile culms (stem) may reach              this region, typically between 5.5 and
Endangered and Threatened Wildlife                           one meter (3 feet) or more in height. The             7.2 (Glover 1994). Soils supporting the
and Plants; Proposed Endangered                              yellowish green leaves are grasslike,                 species are very wet to periodically
Status for Carex lutea (Golden Sedge)                        with those of the culm mostly basal and               shallowly inundated. The species
AGENCY:   Fish and Wildlife Service,                         up to 28 centimeters (cm) (10 inches                  prefers the ecotone (narrow transition
Interior.                                                    (in)) long, while those of the vegetative             zone between two diverse ecological
                                                             shoots reach a length of 65 cm (25 in).               communities) between the pine savanna
ACTION: Proposed rule.                                       Fertile culms produce two to four                     and adjacent wet hardwood or
SUMMARY: We, the Fish and Wildlife
                                                             flowering spikes (multiple flowering                  hardwood/conifer forest (LeBlond 1996;
Service (Service), propose to determine                      structure with flowers attached to the                Schafale and Weakley 1990). Most
endangered status for Carex lutea                            stem), with the terminal (end) spike                  plants occur in the partially shaded
(golden sedge) under the authority of                        being male and the one to three (usually              savanna/swamp where occasional to
the Endangered Species Act of 1973, as                       two) lateral spikes being female. Lateral             frequent fires favor an herbaceous
amended (Act). This rare plant is                            spikes are subtended by leaflike bracts               ground layer and suppress shrub
presently known from only eight                              (a much-reduced leaf). The male spike                 dominance. Other species with which
populations in Pender and Onslow                             is about 2 to 4 cm (0.75 to 1.5 in) long,             this sedge grows include tulip poplar
                                                             1.5 to 2.5 millimeters (mm) (0.05 to 0.10             (Liriodendron tulipifera), pond cypress
counties, North Carolina. C. lutea is
                                                             in) wide, with a peduncle (stalk) about               (Taxodium ascendens), red maple (Acer
endangered throughout its range
                                                             1 to 6 cm (0.5 to 2 in) long. Female                  rubrum var. trilobum), wax myrtle
because of habitat alteration; conversion
                                                             spikes are round to elliptic, about 1 to              (Myrica cerifera var. cerifera), colic root
of its limited habitat for residential,
                                                             1.5 cm (0.5 in) long and 1 cm (0.5 in)                (Aletris farinosa), and several species of
commercial, or industrial development;
                                                             wide. The upper female spike is sessile               beakrush (Rhynchospora spp.). At most
mining; drainage activities associated
                                                             (not stalked; sitting), while lower female            sites, C. lutea shares its habitat with
with silviculture and agriculture; and
                                                             spikes, if present, have peduncles                    Cooley’s meadowrue (Thalictrum
suppression of fire. In addition,
                                                             typically 0.5 to 4.5 cm (0.2 to 1.75 in)              cooleyi), federally listed as endangered,
herbicide use, particularly along utility
                                                             long. When two to three female spikes                 and with Thorne’s beakrush
or road rights-of-way, may also be a                         are present, each is separated from the
threat. This proposal, if made final, will                                                                         (Rhynchospora thornei), a species of
                                                             next, along the culm, by 4.5 to 18 cm                 concern to us. All known populations
extend the protection of the Act to C.                       (1.75 to 7 in). The inflated perigynia (sac
lutea. We are seeking data and                                                                                     are in the northeast Cape Fear River
                                                             which encloses the ovary) are bright                  watershed in Pender and Onslow
comments from the public.                                    yellow at flowering and about 4 to 5 mm               counties, North Carolina. As stated by
DATES: Send your comments to reach us                        (.16 to .20 in) long; the perigynia beaks             LeBlond (1996):
on or before October 15, 1999. We will                       (point) are out-curved and spreading,
not consider comments received after                                                                                 . . . localities where Carex lutea have been
                                                             with the lowermost in a spike strongly                found are ecologically highly unusual . . .
the above date in making our decision                        reflexed (turned downward). C. lutea is               The combination of fairly open conditions
on the proposed rule. We must receive                        most readily identified from mid-April                underlain by a calcareous substrate is very
public hearing requests by September                         to mid-June during flowering and                      rare on the Atlantic coastal plain. Many rare
30, 1999.                                                    fruiting. It is distinguished from other              plant species are associated with these
ADDRESSES: Send comments, materials,                         Carex species that occur in the same                  localities, and several have very restricted
and requests for a public hearing                            habitat by its bright yellow color                    distributions, either being endemic to a small
concerning this proposal to the State                        (particularly the pistillate (female)                 area or with a few highly scattered
                                                                                                                   occurrences. The affinities of these taxa are
Supervisor, Asheville Field Office, US                       spikes), by its height and slenderness,               variable, but include connections to the
Fish and Wildlife Service, 160 Zillicoa                      and especially by the out-curved beaks                calcareous savannas of the Gulf Coast States;
Street, Asheville, North Carolina 28801.                     of the crowded perigynia, the lowermost               alkaline marshes of the Atlantic tidewater;
Comments and materials received will                         of which are reflexed (LeBlond et al.                 calcareous glades, barrens, and prairies of the
be available for public inspection, by                       1994).                                                Appalachian region and the ridge and valley
                   Federal Register / Vol. 64, No. 157 / Monday, August 16, 1999 / Proposed Rules                           44471

province of Georgia and Alabama; and           Processing of this proposed rule is a      distribution and population numbers
pinelands of the Carolinas and southern New    Tier 2 action.                             might have been. However, LeBlond
Jersey.                                                                                   (1996) states: ‘‘It is probable that
                                               Summary of Factors Affecting the
   These rare savannas, underlain by                                                      drainage ditches (that lower the water
                                               Species
calcareous deposits, support unusual                                                      table over a large area) have reduced,
assemblages of plants, including several         The procedures for adding species to     perhaps greatly, the amount of suitable
species known from less than a dozen           the Federal lists are found in section 4   habitat available for Carex lutea and
sites worldwide (Schafale 1994).               of the Act and the accompanying            other rare species at these sites.’’
LeBlond (1996) characterizes these             regulations (50 CFR part 424). A species      B. Overutilization for commercial,
habitats as ‘‘. . . a small archipelago of     may be determined to be an endangered      recreational, scientific, or educational
phytogeographic islands . . .’’ that form      or threatened species due to one or more   purposes. There is no known
a refuge for these rare and unique             of the five factors described in section   commercial trade in C. lutea at this
species. Despite extensive searches of         4(a)(1). These factors and their           time. However, because of its small and
the Gulf Coast in northern Florida and         application to Carex lutea (golden         easily accessible populations, it is
southern Alabama, and Atlantic Coast           sedge) are as follows:                     vulnerable to taking and vandalism that
sites in South Carolina, Georgia, and            A. The present or threatened             could result from increased publicity.
Florida, no other populations of Carex         destruction, modification, or              Most populations are too small to
lutea were found outside the North             curtailment of its habitat or range.       support even the limited collection of
Carolina coastal plain. The species            Seven of the eight known populations of    plants for scientific or other purposes.
appears to be a very rare, narrowly            Carex lutea are on privately owned land       C. Disease or predation. Disease and
restricted endemic to an area within a         and are potentially threatened with the    predation are not known to be factors
2-mile radius of the Onslow/Pender             destruction or adverse modification of     affecting the continued existence of the
County line in southeastern North              their habitat from residential,            species at this time.
Carolina (LeBlond 1996). It is listed as       commercial, or industrial development;        D. The inadequacy of existing
endangered by the State of North               mining; drainage activities associated     regulatory mechanisms. Carex lutea is
Carolina (Amoroso and Weakley 1995;            with silviculture and agriculture; and     listed by the State of North Carolina as
M. Boyer, North Carolina Department of         suppression of fire. The eighth            endangered. As such, it is afforded legal
Agriculture, personal communication,           population, on land now owned by the       protection within the State by North
1998).                                         North Carolina Department of               Carolina General Statutes, § 106–202.12
                                               Transportation (NCDOT), was severely       to 106–202.19 (Cum. Supp. 1985),
Previous Federal Activities                    disturbed in the 1980s by clearcutting,    which provide for protection from
  Federal government actions on this           ditching, and draining prior to NCDOT      intrastate trade (without a permit) and
species have only recently begun, since        ownership. This site has been              for the monitoring and management of
the species was unknown to science             purchased by the NCDOT as a                State-listed species and prohibit the
before 1991 and its official description       mitigation site and is currently under     taking of plants without a permit and
was not published until 1994. In 1995,         study for the restoration of natural       written permission from the landowner.
we funded a survey to determine the            communities and protection and             However, State prohibitions against
status of Carex lutea throughout its           enhancement of rare species                taking are difficult to enforce and do not
known and potential range; we accepted         populations. At least some of the          cover adverse alterations of habitats,
the final report on this survey in 1997.       original C. lutea plants survived the      such as disruption of drainage patterns
A 1998 status report confirmed the             previous damage to the site, and the       and water tables or exclusion of fire.
species’ precarious status (LeBlond            remaining population appears stable.       Two of the sites are somewhat protected
1998). We elevated C. lutea to candidate         As described in the ‘‘Background’’       by registry agreements between the
status (species for which we have              section, the habitat upon which this       landowner and the North Carolina
sufficient information on status and           species depends is extremely rare. Most    Natural Heritage Program. These
threats to propose the taxon for listing       of the remaining populations are very      agreements are strictly voluntary,
as endangered or threatened) on October        small, with five of the eight occupying    however, and may be canceled by the
16, 1998.                                      a combined total area of less than 58      landowner at any time. Part of another
  On May 8, 1998 (63 FR 25502), we             square meters. Three of the sites have     population is owned by The Nature
published Listing Priority Guidance for        populations composed of fewer than 50      Conservancy; however, this site is next
Fiscal Years 1998 and 1999. The                individuals. Although little is known      to a quarry, and the rest of the
guidance clarifies the order in which we       about natural population fluctuations in   population is vulnerable to destruction.
will process rulemakings, giving highest       this species, severe population declines      Section 404 of the Clean Water Act
priority (Tier 1) to processing                (exceeding 83 percent) were noted          represents the primary Federal law that
emergency rules to add species to the          between 1992 and 1996 at three of the      may provide some regulation of the
Lists of Endangered and Threatened             eight remaining sites. The exact causes    species’ wetland habitats. However, the
Wildlife and Plants (Lists); second            for these losses are unknown. One          Clean Water Act by itself does not
priority (Tier 2) to processing final          population is located on a roadside, and   provide adequate protection for the
determinations on proposals to add             another is on a power line right-of-way,   species. Although the objective of the
species to the Lists, processing new           where they are exceptionally vulnerable    Clean Water Act is to ‘‘restore and
proposals to add species to the Lists,         to destruction from highway expansion      maintain the chemical, physical, and
processing administrative findings on          or improvement or herbicide                biological integrity of the Nation’s
petitions (to add species to the Lists,        application. All the known sites have      waters’’ (33 U.S.C. § 1251), no specific
delist species, or reclassify listed           been damaged to some degree in the         provisions exist that address the need to
species), and processing a limited             past by ditching and drainage, mining,     conserve rare species. The Army Corps
number of proposed or final rules to           logging, bulldozing, and/or road           of Engineers (Corps) is the Federal
delist or reclassify species; and third        building. Because the species was only     agency responsible for administering the
priority (Tier 3) to processing proposed       recently discovered, it is impossible to   section 404 program. Under section 404,
or final rules designating critical habitat.   know exactly what its historic             the Corps may issue nationwide permits
44472             Federal Register / Vol. 64, No. 157 / Monday, August 16, 1999 / Proposed Rules

for certain activities that are considered   restrictive smoke management                  prudent because such designation
to have minimal impacts. However, the        regulations make burning very difficult.      would not be beneficial to the species.
Corps seldom withholds authorization            We have carefully assessed the best           Critical habitat designation, by
of an activity under nationwide permits      scientific and commercial information         definition, directly affects only Federal
unless the existence of a listed             available regarding the past, present,        agency actions through consultation
threatened or endangered species would       and future threats faced by this species      under section 7(a)(2) of the Act. Section
be jeopardized. The Corps may also           in making this determination. Based on        7(a)(2) requires Federal agencies to
authorize activities by an individual or     this evaluation, the preferred action is to   ensure that activities they authorize,
regional general permit when the project     list Carex lutea as an endangered             fund, or carry out are not likely to
does not qualify for authorization under     species. Endangered status is more            jeopardize the continued existence of a
a nationwide permit. These projects          appropriate than threatened status            listed species or destroy or adversely
include those that would result in more      because of the following factors: this        modify its critical habitat. None of the
than minimal adverse environmental           species occurs in only 2 counties; only       known populations of Carex lutea occur
effects, either individually or              8 populations survive, all of which have      on Federal land. However, Federal
cumulatively, and are typically subject      already been damaged to some degree;          involvement with this species may
to more extensive review. Regardless of      most of the remaining populations are         occur through the use of Federal
the type of permit deemed necessary          very small, with five of the eight            funding for power line construction,
under section 404, rare species such as      occupying a combined total area of less       maintenance, and improvement;
Carex lutea may receive no special           than 58 square meters; three of the           highway construction, maintanance and
consideration with regard to                 remaining populations are composed of         improvement; drainage alterations; and
conservation or protection unless they       fewer than 50 individuals; there are          permits for mineral exploration and
are listed under the Act.                    documented severe population declines         mining on non-Federal lands. The use of
   E. Other natural or manmade factors       (exceeding 83 percent) between 1992           such funding for projects affecting
affecting its continued existence. As        and 1996 at three of the eight remaining      occupied habitat for this species would
mentioned in the ‘‘Background’’ section      sites; and all of the remaining               be subject to review under section
of this proposed rule, many remaining        populations are currently threatened by       7(a)(2), whether or not critical habitat
populations are small in numbers of          fire suppression, highway expansion,          was designated. The precarious status of
individuals and in area covered by the       right-of-way management with                  C. lutea is such that any adverse
plants. This may suggest low genetic         herbicides, and drainage ditching.            modification or destruction of its
variability within populations, making                                                     occupied habitat would also jeopardize
                                             Critical Habitat
it more important to maintain as much                                                      its continued existence. Thus, the only
habitat and as many remaining colonies          Critical habitat is defined in section 3   potential benefit that would result from
as possible.                                 of the Act as: (i) The specific areas         critical habitat designation would be
   Little is known about the life history    within the geographical area occupied         notification to Federal, State and local
of this species or about its specific        by a species, at the time it is listed in     government agencies and private
environmental requirements. However,         accordance with the Act, on which are         landowners. However, during the listing
its apparent restriction to wet pine         found those physical or biological            process, and after a species is listed, we
savannas is a strong indication that it is   features (I) essential to the conservation    conduct public outreach in affected
adapted to the pyric (associated with        of the species and (II) that may require      local communities and with government
burning) and hydrological conditions         special management considerations or          agencies. All involved parties and
associated with this community type.         protection; and (ii) specific areas           landowners are aware of the location
Such habitats were historically exposed      outside the geographic area occupied by       and importance of protecting this
to wildfires approximately every 3 to 5      a species at the time it is listed, upon      species’ habitat. For these reasons, we
years, usually during the growing            a determination that such areas are           believe that designation of currently
season, which maintained the open            essential for the conservation of the         occupied habitat of this species as
habitats favored by Carex lutea and          species. ‘‘Conservation’’ means the use       critical habitat would not result in any
dozens of other fire-adapted species.        of all methods and procedures needed          additional benefit to the species and
During winter and spring, the soils          to bring the species to the point at          that such designation is not prudent.
where C. lutea grows are often shallowly     which listing under the Act is no longer         Because this species occupies an
flooded. At other times of the year these    necessary.                                    extremely rare habitat type, little of
sites are very wet to saturated. Such           Section 4(a)(3) of the Act, as             which remains in an unaltered,
high water tables also serve to control      amended, and implementing regulations         functional state, we do not expect that
woody growth in undisturbed savanna          (50 CFR 424.12) require that, to the          reintroduction to currently unoccupied
habitats. However, without regular fire,     maximum extent prudent and                    habitat is essential for recovery efforts.
which has been intensively suppressed        determinable, the Secretary designate         Therefore, we believe that designation
on the Atlantic coastal plain for half a     any critical habitat at the time the          of currently unoccupied habitat of this
century, and with the lowering of water      species is listed as endangered or            species as critical habitat would not
tables due to ditching, the open             threatened. Our regulations (50 CFR           result in any additional benefit to the
savannas are rapidly changing to dense       424.12(a)(1)) state that the designation      species and, therefore, such designation
thickets dominated by the trees and          of critical habitat is not prudent when       is not prudent.
shrubs of the adjacent uplands. As a         one or both of the following situations          Most populations of this species are
result, the extraordinary plant diversity    exist—(1) The species is threatened by        small, and the loss of even a few
characteristic of the savannas is being      taking or other human activity, and           individuals to activities such as
eliminated, and species such as C. lutea     identification of critical habitat can be     collection for scientific purposes could
are disappearing from the landscape.         expected to increase the degree of threat     extirpate the species from some
Even where such habitat is owned by an       to the species, or (2) such designation of    locations. Taking without a permit is
organization that is able to manage the      critical habitat would not be beneficial      prohibited by the Act from locations
land with prescribed fire, like The          to the species. We find that designation      under Federal jurisdiction; however,
Nature Conservancy, increasingly             of critical habitat for Carex lutea is not    none of the known populations are
                  Federal Register / Vol. 64, No. 157 / Monday, August 16, 1999 / Proposed Rules                                44473

located on Federal land. Therefore,          critical habitat, the responsible Federal        Atlanta, Georgia (telephone 404/679–
publication of critical habitat              agency must enter into formal                    7313).
descriptions and maps would increase         consultation with us.                               It is our policy, published on July 1,
the vulnerability of the species to             Federal activities that could impact          1994 (59 FR 34272), to identify, to the
collection, but would not increase its       Carex lutea and its habitat in the future        maximum extent practicable, those
protection under the Act. The contractor     include, but are not limited to, the             activities that would or would not
we hired to conduct the rangewide            following: power line construction,              constitute a violation of section 9 of the
status survey declined to include            maintenance, and improvement;                    Act at the time of listing. The intent of
directions to the occupied sites in his      highway construction, maintenance,               this policy is to increase public
report, stating: ‘‘Due to the extreme        and improvement; drainage alterations;           awareness of the effect of the listing on
rarity of Carex lutea and its                and permits for mineral exploration and          proposed and ongoing activities within
vulnerability to extinction, a description   mining. We will work with the involved           a species’ range. The eight remaining
of site boundaries or precise directions     agencies to secure protection and proper         populations of Carex lutea occur on
to population micro sites cannot be          management of C. lutea while                     non-Federal land. We believe that,
provided here’’ (LeBlond 1996). The          accommodating agency activities to the           based upon the best available
owners and managers of all the known         extent possible.                                 information, you can take the following
populations of C. lutea have been made          If the species is added to the Federal        actions without resulting in a violation
aware of the plant’s location and how        List of Endangered and Threatened                of section 9, only if these activities are
important it is to protect the plant and     Wildlife and Plants, additional                  carried out in accordance with existing
its habitat. Since no additional benefits    protection from taking will be provided          regulations and permit requirements:
would result from designation of critical    when the taking is in violation of any              (1) Activities authorized, funded, or
habitat, and there are some risks            State law, including State trespass laws.        carried out by Federal agencies (e.g.,
associated with potential collection, we     It would also provide protection from            wetland modification; power line
conclude that it is not prudent to           inappropriate commercial trade and               construction, maintenance, and
designate critical habitat for C. lutea.     encourage active management for Carex            improvement; highway construction,
Available Conservation Measures              lutea. Specifically, the Act and its             maintenance, and improvement; and
                                             implementing regulations set forth a             permits for mineral exploration and
  Conservation measures provided to
                                             series of general prohibitions and               mining) when such activity is
species listed as endangered or
                                             exceptions that apply to all endangered          conducted in accordance with any
threatened under the Act include
                                             plants. All prohibitions of section              reasonable and prudent measures given
recognition, recovery actions,
requirements for Federal protection, and     9(a)(2) of the Act, implemented by 50            by us according to section 7 of the Act.
prohibitions against certain practices.      CFR 17.61, apply. These prohibitions, in            (2) Normal agricultural and
Recognition through listing encourages       part, would make it illegal for any              silvicultural practices, including
and results in conservation actions by       person subject to the jurisdiction of the        pesticide and herbicide use, that are
Federal, State, and local agencies,          United States to import or export,               carried out in accordance with any
private organizations, and individuals.      transport in interstate or foreign               existing regulations, permit and label
The Act provides for possible land           commerce in the course of a commercial           requirements, and best management
acquisition and cooperation with the         activity, sell or offer for sale in interstate   practices.
States and requires that recovery actions    or foreign commerce, or remove and                  (3) Normal landscape activities
be carried out for all listed species. The   reduce the species to possession from            around your own personal residence.
protection required of Federal agencies      areas under Federal jurisdiction. In                We believe that the following might
and the prohibitions against certain         addition, for plants listed as                   potentially result in a violation of
activities involving listed plants are       endangered, the Act prohibits the                section 9; however, possible violations
discussed, in part, below.                   malicious damage or destruction on               are not limited to these actions alone:
  Section 7(a) of the Act, as amended,       areas under Federal jurisdiction and the            (1) Removal, cutting, digging up,
requires Federal agencies to evaluate        removal, cutting, digging up, or                 damaging, or destroying endangered
their actions with respect to any species    damaging or destroying of such plants            plants on non-Federal land if conducted
that is proposed or listed as endangered     in knowing violation of any State law or         in knowing violation of State law or
or threatened and with respect to its        regulation, including State criminal             regulation or in violation of State
critical habitat, if any is being            trespass law. Certain exceptions to the          criminal trespass law. North Carolina
designated. Regulations implementing         prohibitions apply to our agents and to          prohibits the intrastate trade and take of
this interagency cooperation provision       State conservation agencies.                     C. lutea without a State permit and
of the Act are codified at 50 CFR part          The Act and 50 CFR 17.62 and 17.63            written permission from the landowner.
402. Section 7(a)(4) requires Federal        also provide for the issuance of permits            (2) Interstate or foreign commerce and
agencies to confer informally with us on     to carry out otherwise prohibited                import/export without previously
any action that is likely to jeopardize      activities involving endangered plants           obtaining an appropriate permit.
the continued existence of a proposed        under certain circumstances. Such
species or result in the destruction or      permits are available for scientific             Public Comments Solicited
adverse modification of proposed             purposes and to enhance the                        We intend that any final action
critical habitat. If a species is            propagation or survival of the species.          resulting from this proposal will be as
subsequently listed, section 7(a)(2)         We anticipate that few trade permits             accurate and as effective as possible.
requires Federal agencies to ensure that     would ever be sought or issued, because          Therefore, we are soliciting comments
activities they authorize, fund, or carry    the species is not common in cultivation         or suggestions from the public, other
out are not likely to jeopardize the         or in the wild. You may request copies           concerned government agencies, the
continued existence of such a species or     of the regulations on plants from and            scientific community, industry, or any
to destroy or adversely modify its           direct inquiries about prohibitions and          other interested party concerning this
critical habitat. If a Federal action may    permits to the US Fish and Wildlife              proposed rule. In particular, we are
adversely affect a listed species or its     Service, 1875 Century Boulevard,                 seeking comments concerning:
44474                    Federal Register / Vol. 64, No. 157 / Monday, August 16, 1999 / Proposed Rules

  (1) Biological, commercial trade, or                  National Environmental Policy Act                      LeBlond, R., A. Weakley, A. Reznicek, and
other relevant data concerning any                                                                               W. Crins. 1994. Carex lutea (Cyperaceae),
                                                          We have determined that an                             a rare new coastal plain endemic from
threat (or lack thereof) to Carex lutea;                environmental assessment, as defined                     North Carolina. SIDA 16:153–161.
  (2) The location of any additional                    under the authority of the National                    Schafale, M. 1994. Inventory of longleaf pine
populations of Carex lutea and the                      Environmental Policy Act of 1969, need                   natural communities in North Carolina.
reasons why any habitat should or                       not be prepared in connection with                       Natural Heritage Program, Division of
should not be determined to be critical                 regulations adopted pursuant to section                  Parks and Recreation, North Carolina
habitat as provided by section 4 of the                 4(a) of the Act. A notice outlining our                  Department of Environment, Health, and
Act;                                                    reasons for this determination was                       Natural Resources, Raleigh.
  (3) Additional information concerning                 published in the Federal Register on                   Schafale, M., and A. Weakley. 1990.
the range and distribution of this                      October 25, 1983 (48 FR 49244).                          Classification of the natural communities
species; and                                                                                                     of North Carolina (third approximation).
  (4) Current or planned activities in the              Paperwork Reduction Act                                  Natural Heritage Program, Division of
                                                                                                                 Parks and Recreation, North Carolina
subject area and their possible impacts                   This rule does not contain any new
                                                                                                                 Department of Environment, Health, and
on Carex lutea.                                         collections of information other than                    Natural Resources, Raleigh.
  We will consider your comments and                    those already approved under the
any additional information received on                  Paperwork Reduction Act, 44 U.S.C.                     Author
this species when making a final                        3501 et seq., and assigned Office of                      The primary author of this document
determination regarding this proposal.                  Management and Budget clearance                        is Ms. Nora A. Murdock (see ADDRESSES
The final determination may differ from                 number 1018–0094. An agency may not                    section).
this proposal based upon the                            conduct or sponsor, and a person is not
information we receive.                                 required to respond to a collection of                 List of Subjects in 50 CFR Part 17
  You may request a public hearing on                   information, unless it displays a
                                                                                                                 Endangered and threatened species,
this proposal. Your request for a hearing               currently valid control number. For
                                                                                                               Exports, Imports, Reporting and
must be made in writing and filed                       additional information concerning
                                                                                                               recordkeeping requirements,
within 45 days of the date of publication               permit and associated requirements for
                                                                                                               Transportation.
of this proposal in the Federal Register.               endangered species, see 50 CFR 17.62.
Address your request to the State                                                                              Proposed Regulation Promulgation
                                                        References Cited
Supervisor (see ADDRESSES section).                                                                              Accordingly, we propose to amend
                                                        Amoroso, J., and A. Weakley. 1995. Natural
Executive Order 12866                                     Heritage Program list of the rare plant              part 17, subchapter B of chapter I, title
                                                          species of North Carolina. Natural Heritage          50 of the Code of Federal Regulations,
   Executive Order 12866 requires                                                                              as set forth below:
                                                          Program, Division of Parks and Recreation,
agencies to write regulations that are                    North Carolina Department of
easy to understand. We invite your                        Environment, Health, and Natural                     PART 17—[AMENDED]
comments on how to make this proposal                     Resources, Raleigh.
easier to understand including answers                  Glover, L. 1994. Carex lutea: alive and well             1. The authority citation for part 17
to questions such as the following: (1)                   in Pender County, North Carolina. Report             continues to read as follows:
Is the discussion in the ‘‘Supplementary                  prepared by the North Carolina Chapter of              Authority: 16 U.S.C. 1361–1407; 16 U.S.C.
Information’’ section of the preamble                     The Nature Conservancy, Durham.                      1531–1544; 16 U.S.C. 4201–4245; Pub. L. 99–
helpful in understanding the proposal?                  LeBlond, R. 1998. Supplement to the status             625, 100 Stat. 3500, unless otherwise noted.
(2) Does the proposal contain technical                   survey for Carex lutea. Unpublished report             2. Amend § 17.12(h) by adding the
                                                          submitted to the Asheville Field Office,
language or jargon that interferes with                                                                        following, in alphabetical order under
                                                          U.S. Fish and Wildlife Service, Asheville,
its clarity? (3) Does the format of the                   NC.                                                  FLOWERING PLANTS, to the List of
proposal (grouping and order of                         ——————. 1996. Status survey for Carex                  Endangered and Threatened Plants:
sections, use of headings, paragraphing,                  lutea LeBlond. Unpublished report
etc.) aid or reduce its clarity? What else                                                                     § 17.12       Endangered and threatened plants.
                                                          submitted to the Asheville Field Office,
could we do to make the proposal easier                   U.S. Fish and Wildlife Service, Asheville,           *        *     *              *      *
to understand?                                            NC.                                                       (h) * * *

                      Species                                                                                                                    Critical        Special
                                                         Historic range                 Family             Status     When listed                habitat          rules
   Scientific name              Common name

 FLOWERING PLANTS

Carex lutea ..............   Golden sedge .........   U.S.A. (NC) ............   Cyperaceae ............   E          ....................              NA             NA

              *                       *                      *                     *                       *                       *                         *
                     Federal Register / Vol. 64, No. 157 / Monday, August 16, 1999 / Proposed Rules                            44475

  Dated: July 12, 1999.                       American Samoa, August 19, 1999, 3–5          Coral Reef Task Force and the U.S. Coral
Marshall P. Jones,                            p.m., Conference Room, Division of            Reef Initiative, as well as the provisions
Acting Director, Fish and Wildlife Service.   Marine and Wildlife Resources, Pago           of the Magnuson-Stevens Act, as
[FR Doc. 99–20964 Filed 8–13–99; 8:45 am]     Pago, AS. Phone contact 684–633–4456          amended by the Sustainable Fisheries
BILLING CODE 4310–55–P                        for information. Subsequent public            Act. The draft Coral Reef Ecosystem
                                              scoping meetings are tentatively              FMP would describe the importance of
                                              planned for Hawaii (details regarding         coral reef resources to the region and
DEPARTMENT OF COMMERCE                        times and locations will follow in a          current and potential threats that
                                              separate Federal Register                     warrant an FMP at this time.
National Oceanic and Atmospheric              announcement).                                Information regarding the harvest of
Administration                                FOR FURTHER INFORMATION CONTACT:              these resources in the EEZ is largely
                                              Kitty M. Simonds, at 808–522–8220.            unknown. Potential for unregulated
50 CFR Part 660                               SUPPLEMENTARY INFORMATION: A
                                                                                            harvest and bio-prospecting for reef fish,
[I.D. 080499B]                                summary of the Coral Reef Ecosystem           live grouper, live rock and coral exists
                                              FMP will be presented including initial       throughout the region. Marine debris,
Environmental Impact Statement (EIS)                                                        largely from fishing gear, is adversely
                                              recommendations for management
for the Proposed Fishery Management                                                         impacting reefs in the Northwestern
                                              action, as described here. Comments
Plan (FMP) for the Coral Reef                                                               Hawaiian Islands.
                                              will be solicited from the public on             The public is also invited to assist the
Ecosystem Fishery Management Plan             these and any other management
of the Western Pacific Region (Coral                                                        Council in developing the scope of
                                              alternatives the public cares to offer.       alternatives and impacts that should be
Reef Ecosystem FMP); EIS for the FMP             Management measures that might be
for the Bottomfish and Seamount                                                             analyzed in an EIS for the Bottomfish
                                              adopted in the Coral Reef Ecosystem
Groundfish Fisheries of the Western                                                         and Seamount Groundfish Fisheries
                                              FMP include permit and reporting              FMP. An EIS has not been prepared for
Pacific Region; (Bottomfish and               requirements for non-subsistence
Seamount Groundfish Fisheries FMP)                                                          the FMP. Since the FMP was
                                              harvest of coral reef resources, marine       implemented in 1986, many changes
AGENCY:  National Marine Fisheries            protected areas to ensure greater             have occurred in this fishery, and with
Service (NMFS), National Oceanic and          conservation and management to special        the stocks and management regimes. As
Atmospheric Administration (NOAA),            locations, allowable gear types to            part of the scoping process for the EIS
Commerce.                                     harvest coral reef resources in the U.S.      for this FMP, the public is also invited
ACTION: Notice of intent to prepare EISs;     exclusive economic zone (EEZ),                to comment on an alternative being
request for comments; notice of scoping       prohibition on use of gear in ways            considered for the addition of
meeting.                                      destructive to habitat, and a framework       bottomfish species, in the EEZ around
                                              management process to add future new          the U.S. Pacific Island possessions (and
SUMMARY: NOAA announces its                   measures. The FMP would also include          the Commonwealth of the Northern
intention to prepare an EIS in                essential fish habitat and habitat areas of   Mariana Islands (CNMI)), to the
accordance with the National                  particular concern, including fishing         management unit of the Bottomfish and
Environmental Policy Act of 1969 for          and non-fishing threats, as well as other     Seamount Groundfish FMP. Federal
the proposed Coral Reef Ecosystem             components of FMPs required under the         regulations for the EEZ off the U.S.
FMP, and an EIS for the Bottomfish and        Magnuson-Stevens Fishery                      Island possessions (and the CNMI) that
Seamount Groundfish Fisheries FMP.            Conservation and Management Act               would provide basic protection and
The Western Pacific Fishery                   (Magnuson-Stevens Act). An additional         conservation measures are already
Management Council (Council) will             measure, still under consideration for        established in the EEZs for other parts
hold a public scoping hearing in              possible inclusion, is a ban on the           of the Western Pacific Region, and
American Samoa on management                  possession or collection, for commercial      include no taking with explosives,
alternatives to be analyzed under both        purposes, of wild ‘‘live rock’’ and coral     poisons, trawl nets or bottom-set
EISs.                                         (other than coral covered by the Fishery      gillnets. A definition of overfishing for
DATES: Written comments on the intent         Management Plan for the Precious              a list of identified FMP management
to prepare the EISs will be accepted on       Corals Fisheries of the Western Pacific       unit species would be established and
or before August 26, 1999. A public           Region). The collection of live rock or       evaluated annually, with required
scoping meeting is scheduled for August       coral for scientific and research             action in the event of overfishing.
19, 1999.                                     purposes and the collection of small
ADDRESSES: Written comments on the            amounts of live coral as brood-stock for      Public Information Meetings
intent to prepare the EISs or other           captive breeding/aquaculture would be            Additional public information
aspects of the scoping documents,             allowed by permit.                            meetings and public hearings on the
which contain suggested alternatives             The Coral Reef Ecosystem FMP, and          proposed EISs may be held in Hawaii
and potential impacts should be sent to       its associated EIS, would be the              later in the year. These meetings will be
and copies of the scoping documents are       Council’s fifth FMP for the EEZ for all       advertised in the Federal Register and
available from Kitty M. Simonds,              U.S. Pacific Islands. This area includes      the local newspapers.
Executive Director, Western Pacific           nearly 11,000 km2 (4,000 square miles)
Regional Fishery Management Council,          of coral reefs. Development of the Coral      Special Accommodations
1164 Bishop St., Suite 1400, Honolulu,        Reef Ecosystem FMP is timely,                    This meeting is physically accessible
HI 96813, and to Charles Karnella,            considering such new mandates and             to people with disabilities. Requests for
Administrator, National Marine                initiatives as the April 1999 report to       sign language interpretation or other
Fisheries Service, Pacific Islands Area       Congress by the Ecosystem Principles          auxiliary aids should be directed to
Office, 1601 Kapiolani Blvd., Suite           Advisory Panel on Ecosystem-Based             Kitty M. Simonds, (see ADDRESSES),
1110, Honolulu HI 96814.                      Fishery Management, the President’s           808–522–8220 (voice) or 808–522–8226
   The following location and time have       1998 Executive Order on Coral Reefs           (fax), at least 5 days prior to the meeting
been set for the scoping meeting:             (E.O. 13089), and priorities of the U.S.      date.
44476                Federal Register / Vol. 64, No. 157 / Monday, August 16, 1999 / Proposed Rules

  Dated: August 10, 1999.
Bruce C. Morehead,
Acting Director, Office of Sustainable
Fisheries, National Marine Fisheries Service.
[FR Doc. 99–21073 Filed 8–11–99; 9:37 am]
BILLING CODE 3510–22–F
                                                                                                                                 44477

Notices                                                                                       Federal Register
                                                                                              Vol. 64, No. 157

                                                                                              Monday, August 16, 1999



This section of the FEDERAL REGISTER                Dated: August 3, 1999.                    Assessment (INFISH). The Eastside
contains documents other than rules or            Samuel Chambers, Jr.,                       screens were designed to offer
proposed rules that are applicable to the         Administrator.                              conservative protection to riparian,
public. Notices of hearings and investigations,                                               ecosystem, and wildlife values. INFISH
                                                  [FR Doc. 99–21203 Filed 8–13–99; 8:45 am]
committee meetings, agency decisions and
rulings, delegations of authority, filing of      BILLING CODE 3410–30–M                      provides interim direction to protect
petitions and applications and agency                                                         habitat and populations of resident
statements of organization and functions are                                                  native fish outside of anadromous fish
examples of documents appearing in this           DEPARTMENT OF AGRICULTURE                   habitat. The Red Knight planning area
section.                                                                                      incorporates the following Forest Plan
                                                  Forest Service                              Management Areas (MA): Scenic
                                                  Red Knight Restoration Project,             Management (MA–3) designed to
DEPARTMENT OF AGRICULTURE                                                                     maintain and create visually pleasing
                                                  Winema National Forest, Klamath
                                                  County, OR                                  scenery; Old-Growth Ecosystems (MA–
Food and Nutrition Service
                                                                                              7) designed to provide, maintain and
National Advisory Council on Maternal,            AGENCY: Forest Service, USDA.               enhance existing mature and old-growth
Infant and Fetal Nutrition; Notice of             ACTION:Notice of intent to prepare an       communities; Riparian Areas (MA–8)
Meeting                                           environmental impact statement.             designed to protect soil, water, wetland,
                                                                                              floodplain, wildlife, and fish resource
                                                  SUMMARY:    The USDA, Forest Service        values; Timber Production (MA–12)
AGENCY:   Food and Nutrition Service,
                                                  will prepare an environmental impact        designed to produce a high level of
USDA.                                             statement (EIS) for restoration projects    growth and timber production; and
ACTION:   Notice.                                 within the Red Knight planning area on      Upper Williamson (MA–15) designed to
                                                  the Chemult Ranger District of the          provide a natural-appearing forest
SUMMARY: Pursuant to the Federal                  Winema National Forest. Red Knight
                                                                                              setting for dispersed recreation activities
Advisory Committee Act, 5 U.S.C. App.,            planning area is located in T29S, T30S,
                                                                                              and special wildlife habitats. The
this notice announces a meeting of the            R10E, R11E, Willamette Meridian and
                                                                                              planning area is within former Klamath
National Advisory Council on Maternal,            covers an area of approximately 36,000
                                                                                              India Reservation lands.
Infant, and Fetal Nutrition.                      acres. The planning area is located west/
                                                  northwest of Yamsay Mountain                Purpose and Need
DATE AND TIME: September 14–16, 1999,             Semiprimitive Recreation Area and
9:00 a.m.–5:00 p.m.                               south of the Silver Lake Highway.              Portions of the Red Knight planning
                                                  Jackson Creek traverses the planning        area are crowded with trees that are
PLACE: Food and Nutrition Service, 3101                                                       competing for nutrients, water, and
                                                  area. The Winema National Forest
Park Center Drive, 4th Floor Conference                                                       growing space. Dwarf mistletoe
                                                  invites written comments on this
Room, Alexandria, Virginia 22302.                                                             infections are present. Mature and old-
                                                  proposal and the scope of analysis. The
SUPPLEMENTARY INFORMATION:    The                 agency will give notice of the full         growth ponderosa pine and mixed
Council will continue its study of the            environmental analysis and decision-        conifer habitat is at risk from
Special Supplemental Nutrition                    making process so interested and            competition-induced mortality and
Program for Women, Infants and                    affected persons may participate and        wildlife. Aspen stands are declining due
Children (WIC) and the Commodity                  contribute to the final decision.           to lodgepole pine encroachment. Fire
Supplemental Food Program (CSFP).                 DATES: Comments concerning the scope        suppression and growth of stands have
The agenda items will include a                   of the analysis should be received by       resulted in development of excessive
discussion of general program issues.             September 20, 1999.                         fuel accumulations and a decline in
                                                  ADDRESSES: Send written comments to         forage production. Prior to recognition
STATUS: Meetings of the Council are                                                           of the value of standing and down dead
open to the public. Members of the                Red Knight Project, Chemult Ranger
                                                  District, P.O. Box 150, Chemult, Oregon     trees, past harvest practices created a
public may participate, as time permits.                                                      shortage of snags and down logs.
                                                  97731.
Members of the public may file written                                                        Current open road densities exceed
statements with the contact person                FOR FURTHER INFORMATION CONTACT:
                                                  Jayne Goodwin, 541–365–7072 or e-mail       recommendations for big game habitat.
named below before or after the                                                               Densities average approximately 5 miles
meeting.                                          at: jgoodwin/r6pnw winema@fs.fed.us.
                                                                                              of open road per section (a section is
                                                  SUPPLEMENTARY INFORMATION: This
CONTACT PERSON FOR ADDITIONAL                                                                 one square mile).
                                                  project will be consistent with the
INFORMATION: Persons wishing                      Winema National Forest Land and                The existing conditions described
additional information about this                 Resource Management Plan as amended         above have created needs—(1) for
meeting should contact Jackie                     by the Revised Environmental                sustainable mature and old-growth
Rodriguez, Supplemental Food                      Assessment for the Continuation of          habitat and quaking aspen habitat for
Programs Division, Food and Nutrition             Interim Management Direction                support of populations of native species;
Service, Department of Agriculture,               Establishing Riparian, Ecosystem and        (2) for reduced risk of stand replacement
3101 Park Center Drive, Room 540,                 Wildlife Standards for Timber Sales         fires within the planning area; and (3)
Alexandria, Virginia 22302. Telephone:            (Eastside Screens) and the Inland Native    for sustainable habitat for big game.
(703) 305–2747.                                   Fish Strategy Environmental                 Scoping may identify more needs.
44478                   Federal Register / Vol. 64, No. 157 / Monday, August 16, 1999 / Notices

Proposed Action                               those who submit anonymous                    chapters of the draft statement.
  Proposed activities include                 comments will not have standing to            Comments may also address the
approximately 12,000 areas of                 appeal the subsequent decision under          adequacy of the draft EIS or the merits
commercial thinning (thinning-from-           36 CFR Parts 215 or 217. Additionally,        of the alternatives formulated and
below) and 24,000 acres of                    pursuant to 7 CFR 1.27(d), any person         discussed in the statement. Reviewers
precommercial thinning. Approximately         may request the agency to withhold a          may wish to refer to the Council on
11,000 of the 24,000 acres of                 submission from the public record by          Environmental Quality Regulations for
precommercial thinning would occur            showing how the Freedom of                    implementing the procedural provisions
within proposed commercial thinning           Information Act (FOIA) permits such           of the National Environmental Policy
areas. Other proposed activities are          confidentiality. Persons requesting such      Act at 40 CFR 1503.3 in addressing
approximately 400 acres of pruning of         confidentiality should be aware that,         these points.
dwarf mistletoe-infected trees, 50 acres      under the FOIA, confidentiality may be           Comments on the draft EIS will be
of quaking aspen regeneration, 10,000         granted in only very limited                  analyzed, considered, and responded to
acres of prescribed burning or mowing         circumstances, such as to protect trade       by the Forest Service in preparing the
of shrubs, seedlings, and small saplings,     secrets. The Forest Service will inform       final EIS. The final EIS is scheduled to
creation of 2,000 snags, evaluate access      the requester of the agency’s decision        be completed in July 2000. The Forest
and travel opportunities, 50 miles of         regarding the request for confidentiality,    Service is the lead agency. Forest
road closures, and 37 miles of road           and where the request is denied, the          Supervisor, Winema National Forest, is
obliteration.                                 agency will return the submission and         the responsible official. The responsible
                                              notify the requester that the comments        official will document the decision and
Alternatives                                  may be resubmitted with or without            rationale for the decision for the Red
   The No Action alternative will serve       name and address within a specified           Knight Restoration Project in the Record
as a baseline for comparison of               number of days.                               of Decision. That decision will be
alternatives and will be fully developed      Estimated Dates for Draft and Final EIS       subject to Forest Service Appeal
and analyzed. With the No Action                                                            Regulations (36 CFR Part 215).
alternative, there would be no activities        The draft EIS is expected to be filed
                                              with the Environmental Protection               Dated: July 29, 1999.
implemented based on the Red Knight
                                              Agency (EPA) and to be available for          Mary C. Erickson,
analysis. Previously approved activities,
and routine protection and maintenance        public comment by April 2000. The             Acting Deputy Forest Supervisor, Winema
                                              comment period on the draft EIS will be       National Forest.
activities will continue. The proposed
action, as described above, will be           45 days from the date the EPA publishes       [FR Doc. 99–21110 Filed 8–13–99; 8:45 am]
considered and other alternatives             the notice of availability in the Federal     BILLING CODE 3410–11–M

developed around the proposed action          Register.
to address issues identified in the              The Forest Service believes, at this
scoping and public involvement                early stage, it is important to give
process.                                      reviewers notice of several court rulings     DEPARTMENT OF COMMERCE
                                              related to public participation in the
Issues                                        environmental review process. First,          Submission for OMB Review;
  Preliminary issues identified are—          reviewers of draft environmental impact       Comment Request
Klamath Tribes culture and treaty             statements must structure their
                                              participation in the environmental               The Department of Commerce (DOC)
resources (subsistence hunting, fishing,                                                    has submitted to the Office of
and gathering), mature and old-growth         review of the proposal so that it is
                                              meaningful and alerts an agency to the        Management and Budget (OMB) for
habitat, forest health, and wildfire risk.                                                  clearance the following proposal for
                                              reviewer’s position and contentions.
Public Involvement                            Vermont Yankee Nuclear Power Corp. v.         collection of information under the
   Scoping determines issues to be            NRDC, 435 U.S. 519,55 (1978). Also,           provisions of the Paperwork Reduction
addressed and identifies the significant      environmental objections that could be        Act (44 U.S.C. Chapter 35).
issues related to a proposed action. The      raised at the draft EIS stage but that are       Agency: National Institute of Science
Forest Service will seek information and      not raised until after completion of the      and Technology.
comments from Tribes, Federal, State,         final EIS may be waived or dismissed by          Title: Malcolm Baldrige Quality
and local agencies and other individuals      the courts. City of Angoon v. Hodel, 803      Award Application.
and organizations who may be                  F.2d 1016, 1022 (9th Cir. 1986) and              Agency Form Number: None.
interested in or affected by the proposed     Wisconsin Heritages, Inc. v. Harris, 490         OMB Approval Number: 0693–0006.
action. This input will be used in            F. Supp. 1334, 1338 (E.D. Wis. 1980).            Type of Request: Reinstatement, with
preparation of the draft EIS. Scoping         Because of these court rulings, it is very    change, of a previously approved
will be achieved through mailings,            important that those interested in this       collection.
newspaper notices, website postings           proposed action participate by the close         Burden Hours: 10,000.
(www.fs.fed.us/r6/winema), and field          of the 45-day comment period so that             Number of Respondents: 100.
trips. Field trips to the planning area are   the substantive comments and                     Average Hours Per Response: 100.
scheduled for August, September, and          objections are made available to the             Needs and Uses: The Malcolm
October of 1999.                              Forest Service at a time when it can          Baldrige Quality Award is nationwide
   Comments received in response to           meaningfully consider them and                award to promote the awareness of
this notice, including names and              respond to them in the final EIS.             performance excellence, recognize
addresses of those who comment, will             To assist the Forest Service in            excellent performance achievements of
be considered part of the public record       identifying and considering issues and        U.S. organizations, and to share
on this proposed action and will be           concerns on the proposed action,              successful quality strategies and
available for public inspection.              comments on the draft EIS should be as        practices. The information provided is
Comments submitted anonymously will           specific as possible. It is also helpful if   used to evaluate the applicant’s
be accepted and considered; however,          comments refer to specific pages or           eligibility to receive the Award.
                         Federal Register / Vol. 64, No. 157 / Monday, August 16, 1999 / Notices                                44479

  Affected Public: U.S. organizations          form will ask U.S. exporting firm            regarding market conditions and
that choose to apply for the Malcolm           respondents to provide general               opportunities in various industries and
Baldrige National Quality Award.               background information and identify          countries of the former Soviet Union.
  Frequency: Annually.                         which service(s) they are interested in.     These information products provided by
  Respondent’s Obligation: Voluntary.          This generic form will also be available     BISNIS are in the form of emails, faxes,
  OMB Desk Officer: Virginia Huth,             for use by all of ITA’s Export Assistance    and paper mailers. The Publication
(202) 395–6929.                                Centers.                                     Subscription form is a quick way for
  Copies of the above information                Affected Public: Businesses or other       interested parties to tell BISNIS which
collection proposal can be obtained by         for profit.                                  products they want and what is their
calling or writing Linda Engelmeier,             Frequency: On occasion.                    industry and country interests.
DOC Forms Clearance Officer, (202)               Respondent’s Obligation: Required to         Affected Public: Businesses or other
482–3272, Department of Commerce,              obtain or retain a benefit, voluntary.       for profit, not-for-profit institutions.
Room 5033, 14th and Constitution                 OMB Desk Officer: David Rostker,             Frequency: On occasion.
Avenue, NW, Washington, DC 20230 (or           (202) 395–7340.                                Respondent’s Obligation: Required to
via the Internet at LEngelme@doc.gov).           Copies of the above information            obtain or retain a benefit, voluntary.
  Written comments and                         collection can be obtained by calling or       OMB Desk Officer: David Roster, (202)
recommendations for the proposed               writing Linda Engelmeier, Department         395–7340.
information collection should be sent          Forms Clearance Officer, (202) 482–            Copies of the above information
within 30 days of publication of this          3272, Department of Commerce, Room           collection can be obtained by calling or
notice to Virginia Huth, OMB Desk              5033, 14th and Constitution Avenue,          writing Linda Engelmeier, Department
Officer, Room 10236, New Executive             N.W., Washington D.C. 20230 (or via the      Forms Clearance Officer, (202) 482–
Office Building, 725 17th Street, NW,          internet at LEngelme@doc.gov).               3272, Department of Commerce, Room
Washington, DC 20503.                            Written comments and                       5327, 14th and Constitution Avenue,
   Dated: August 10, 1999.                     recommendations for the proposed             N.W., Washington, D.C. 20230 (or via
                                               information collection should be sent to     the internet at LEngelme@doc.gov).
Linda Engelmeier,
                                               David Rostker, OMB Desk Officer, Room          Written comments and
Departmental Forms Clearance Officer, Office                                                recommendations for the proposed
                                               10202, New Executive Office Building,
of the Chief Information Officer.
                                               Washington D.C. 20503 within 30 days         information collection should be sent to
[FR Doc. 99–21099 Filed 8–13–99; 8:45 am]                                                   David Roster, OMB Desk Officer, Room
                                               of the publication of this notice.
BILLING CODE 3510–FP–P                                                                      10202, New Executive Office Building,
                                                  Dated: August 10, 1999.
                                                                                            Washington, D.C. 20503 within 30 days
                                               Linda Engelmeier,
                                                                                            of the publication of this notice.
DEPARTMENT OF COMMERCE                         Department Forms Clearance Officer, Office
                                               of the Chief Information Officer.               Dated: August 10, 1999.
Submission for OMB Review:                     [FR Doc. 99–21100 Filed 8–13–99; 8:45 am]    Linda Engelmeier,
Comment Request                                BILLING CODE 3510–FP–P                       Department Forms Clearance Officer, Office
                                                                                            of the Chief Information Officer
   DOC has submitted to the Office of
                                                                                            [FR Doc. 99–21101 Filed 8–13–99; 8:45 am]
Management and Budget (OMB) for
clearance the following proposal for           DEPARTMENT OF COMMERCE                       BILLING CODE 3510–DA–P

collection of information under the            Submission for OMB Review:
provisions of the Paperwork Reduction          Comment Request                              DEPARTMENT OF COMMERCE
Act of 1995, Public Law 104–13.
   Bureau: International Trade                 DOC has submitted to the Office of           Submission for OMB Review;
Administration.                                Management and Budget (OMB) for              Comment Request
   Title: Export Assistance Center             clearance the following proposal for
Website Form.                                  collection of information under the            DOC has submitted to the Office of
   Agency Form Number: N/A.                    provisions of the Paperwork Reduction        Management and Budget (OMB) for
   OMB Number: None.                           Act of 1995, Public Law 104–13.              clearance the following proposal for
   Type of Request: Regular Submission.                                                     collection of information under the
   Burden: 417 hours.                             Bureau: International Trade               provisions of the Paperwork Reduction
   Number of Respondents: 5,000.               Administration.                              Act (44 U.S.C. chapter 35).
   Avg. Hours Per Response: 5 minutes.            Title: BISNIS Publication                   Agency: U.S. Census Bureau.
   Needs and Uses: The New York                Subscription Form.                             Title: Census Employment Inquiry.
Export Assistant Center, which is a               Agency Form Number: N/A.                    Form Number(s): BC–170.
combined effort of the U.S. Department            OMB Number: None.                           Agency Approval Number: 0607–
of Commerce’s International Trade                 Type of Request: Regular Submission.      0139.
Administration (ITA), Export-Import               Burden: 170 hours.                          Type of Request: Revision of a
Bank, and Small Business                          Number of Respondents: 2,040.             currently approved collection.
Administration provides a                         Avg. Hours Per Response: 5 minutes.         Burden: 762,500 hours.
comprehensive array of export                     Needs and Uses: The International           Number of Respondents: 3,050,000.
counseling and trade finance services to       Trade Administration’s (ITA) Business          Avg Hours Per Response: 15 minutes.
small and medium-sized U.S. exporting          Information Service for the Newly              Needs and Uses: The BC–170, Census
firms. In 1998, it launched an                 Independent States (BISNIS) program          Employment Inquiry, is used by the
interactive website, www.nyuseac.org           offers business information and              Census Bureau to collect information
that is geared to the needs of New York        counseling to U.S. companies seeking to      such as personal data and work
and New Jersey metropolitan industry.          export or to invest in the countries of      experience from job applicants. The BC–
One electronic form is proposed to be          the former Soviet Union.                     170 is used throughout the census and
added to the website in order to                  A critical component of the program       intercensal years in situations which
improve the usefulness of the site. The        is the dissemination of information          require the establishment of a temporary
44480                    Federal Register / Vol. 64, No. 157 / Monday, August 16, 1999 / Notices

office and/or involve special, one-time        DEPARTMENT OF COMMERCE                               States. In addition, in accordance with
survey operations. Applicants                                                                       section 702(b)(1) of the Act, the
completing the form are applying for           International Trade Administration                   petitioner alleges that producers or
temporary jobs in office and field             [A–505–801, A–201–825, A–517–802, A–307– exporters of crude oil from Iraq, Mexico,
positions (clerks, enumerators, crew           817, C–505–802, C–201–826, C–517–803, C– Saudi Arabia, and Venezuela received
leaders, supervisors). Selecting officials     307–818]                                             countervailable subsidies within the
review the information shown on the                                                                 meaning of section 701 of the Act.
form to determine the best qualified           Dismissal of Antidumping and                            The Department finds that the
applicants. The form has been                  Countervailing Duty Petitions: Certain               petitioner is an interested party as
demonstrated to meet our recruitment           Crude Petroleum Oil Products From                    defined in section 771(9)(E) of the Act.
                                               Iraq, Mexico, Saudi Arabia, and                      However, as discussed below, the
needs for temporary workers and
                                               Venezuela                                            petitioner has not demonstrated that it
requires significantly less burden than
                                                                                                    filed the petitions on behalf of the
the Office of Personnel Management             AGENCY: Import Administration,
                                                                                                    domestic industry. Because the
Optional Forms that are available for          International Trade Administration,
                                                                                                    petitioner has failed to demonstrate
use by the public when applying for            Department of Commerce.
                                                                                                    sufficient industry support, as required
Federal positions.                             EFFECTIVE DATE: August 16, 1999.                     by sections 702(c)(4) and 732(c)(4) of the
  Current efforts to hire an enormous          FOR FURTHER INFORMATION CONTACT:                     Act, the Department has no basis to
temporary workforce for Census 2000            Mark Ross or Thomas Schauer                          initiate the requested investigations (see
will significantly increase the usage of       (Antidumping) or Roy Malmrose                        the ‘‘Determination of Industry Support
the BC–170. The 2000 Census is the             (Countervailing Duty), Import                        for the Petitions’’ section, below).
largest peacetime mobilization of              Administration, International Trade
                                               Administration, U.S. Department of                   Scope of the Petitions
civilians that enumerate and account for
the population of the United States. We        Commerce, 14th Street and Constitution                  For purposes of these petitions, the
expect to recruit approximately                Avenue, N.W., Washington, DC 20230;                  product covered is all crude petroleum
3,000,000 applicants for Census 2000           telephone: (202) 482–4794, (202) 482–                oils and oils obtained from bituminous
                                               0410, or (202) 482–5414, respectively.               minerals testing at, above, or below 25
jobs.
                                               SUPPLEMENTARY INFORMATION:                           degrees A.P.I. The merchandise covered
  Affected Public: Individuals or                                                                   by these petitions is classifiable under
households.                                    The Applicable Statute and Regulations subheadings 2709.00.10 and 2709.00.20
  Frequency: One-time.                            Unless otherwise indicated, all                   of the Harmonized Tariff Schedule of
                                               citations to the statute are references to           the United States.
  Respondent’s Obligation: Required to
                                               the provisions effective January 1, 1995,
obtain or retain benefits.                                                                          Consultations
                                               the effective date of the amendments
  Legal Authority: Title 13 USC, Section       made to the Tariff Act of 1930 (the Act)                Pursuant to section 702(b)(4)(A)(ii) of
23.                                            by the Uruguay Round Agreements Act                  the Act, the Department invited
  OMB Desk Officer: Linda Hutton,              (URAA). In addition, unless otherwise                representatives of the Governments of
(202) 395–7858.                                indicated, all citations to the                      Mexico, Saudi Arabia, and Venezuela
                                               Department of Commerce’s (the                        for consultations with respect to the
  Copies of the above information                                                                   countervailing duty petitions filed. On
                                               Department’s) regulations are to the
collection proposal can be obtained by         provisions codified at 19 CFR Part 351               August 2, 1999, consultations were held
calling or writing Linda Engelmeier,           (1998) and to the substantive                        with representatives of the Government
DOC Forms Clearance Officer, (202)             countervailing duty regulations                      of Venezuela. On August 5, 1999,
482–3272, Department of Commerce,              published in the Federal Register on                 consultations were held with
room 5033, 14th and Constitution               November 25, 1998 (63 FR 65348).                     representatives of the Governments of
Avenue, NW, Washington, DC 20230 or                                                                 Mexico and Saudi Arabia. See the
via the internet at LEngelme@doc.gov).         The Petitions
                                                                                                    August 3, 1999, August 5, 1999, and
  Written comments and                            On June 29, 1999, the Department                  August 6, 1999, memoranda to the file
recommendations for the proposed               received petitions filed in proper form              regarding these consultations.
information collection should be sent          by Save Domestic Oil, Inc. (hereinafter
                                               referred to as the petitioner), an                   Determination of Industry Support for
within 30 days of publication of this                                                               the Petitions
notice to Linda Hutton, OMB Desk               organization composed of producers of
                                               crude oil. The Department received                   a. The Regional Industry
Officer, room 10201, New Executive
                                               supplemental submissions during June,
Office Building, Washington, DC 20503.                                                                 The petitioner alleges that there is a
                                               July, and August 1999.
                                                                                                    regional industry for the domestic like
   Dated: August 10, 1999.                        In accordance with section 732(b) of
                                                                                                    product. In support of its allegation, the
Linda Engelmeier,                              the Act, the petitioner alleges that
                                                                                                    petitioner provided sufficient
Departmental Forms Clearance Officer, Office   imports of crude oil from Iraq, Mexico,
                                                                                                    information, reasonably available to the
of the Chief Information Officer.              Saudi Arabia, and Venezuela are being,
                                                                                                    petitioner, regarding the criteria set out
[FR Doc. 99–21102 Filed 8–13–99; 8:45 am]      or are likely to be, sold in the United
                                                                                                    in section 771(4)(C) of the Act: (1) the
                                               States at less than fair value within the
BILLING CODE 3510–07–P                                                                              producers within such market sell all or
                                               meaning of section 731 of the Act and
                                                                                                    almost all of their production of the
                                               that such imports are materially
                                                                                                    domestic like product in question in
                                               injuring, or threatening material injury
                                                                                                    that market; (2) the demand in that
                                               to, a regional 1 industry in the United
                                                                                                    market is not supplied, to any
                                                 1 The region identified by the petitioner consists substantial degree, by producers of the
                                               of the 48 contiguous states, excluding Arizona,      product in question located elsewhere
                                               California, Nevada, Oregon, and Washington.          in the United States; and (3) appropriate
                             Federal Register / Vol. 64, No. 157 / Monday, August 16, 1999 / Notices                                 44481

circumstances exist to divide the United             reference point from which the                parties have argued that lease
States into the two markets alleged.                 Department’s analysis of the domestic         condensates are very similar in physical
   In accordance with sections                       like product begins is ‘‘the article          characteristics and uses to light crude
702(c)(4)(C) and 732(c)(4)(C) of the Act,            subject to an investigation,’’ i.e., the      oil and that, when mixed, they simply
if the petitioner alleges that the industry          class or kind of merchandise to be            become an indistinguishable part of the
is a regional industry, the Department               investigated, which normally will be the      crude-oil stream which is sent to the
shall determine whether the petition has             scope as defined in the petition.             refinery.
been filed by or on behalf of the                       The ‘‘Scope of the Petitions’’ section       In addition to the extremely complex
industry by applying the requirements                above sets forth the domestic like            technical nature of the issue,
set forth in sections 702(c)(4)(A) and               product identified in the petitions. In       ascertaining the precise nature of
732(c)(4)(A) of the Act on the basis of              addition to the products included in the      available production and distribution
the production in the region. The                    petitioner’s definition of domestic like      data as well as attempting to establish
Department has reviewed the adequacy                 product, parties have argued that two         the appropriate analytical framework for
and accuracy of the information                      other products, refined products and          a very diverse industry has been
supplied by the petitioner with respect              ‘‘lease condensates,’’ should be              problematic for the Department.
to its regional-industry claim. Based                included within the domestic like             However, it is not necessary to decide
upon this review and in accordance                   product.                                      this issue because, as discussed below,
with the statutory criteria stated above,               With respect to refined products, we       we have determined that the petitioner
the petitioner has made an adequate                  determine that there is a clear dividing      does not have the requisite industry
regional-industry claim for initiation               line between the characteristics and          support, regardless of how the issue of
purposes. For a further discussion                   uses of crude oil and refined products.       lease condensates is resolved.
regarding the regional-industry claim,               Crude oil, which is the input product
                                                     used to produce a refined product, must       c. Calculation of Industry Support
see Memorandum from Laurie Parkhill
                                                     undergo a distinct and significant            Within the Region
to Richard W. Moreland, dated August
8, 1999.                                             process to become a refined product              Sections 702(b)(1) and 732(b)(1) of the
                                                     such as gasoline and other fuel oils.         Act require that a petition be filed on
b. Scope of the Industry Examined for                While both crude oil and refined              behalf of the domestic industry. In
Support                                              products consist of hydrocarbon               particular, sections 702(c)(4)(A) and
   Section 771(4)(A) of the Act defines              compounds, the refining process               732(c)(4)(A) of the Act provide that a
the ‘‘industry’’ as the producers of a               changes the physical structure and            petition meets this requirement if the
domestic like product. Thus, to                      characteristics of the compounds found        domestic producers or workers in the
determine whether the petition has the               originally in the crude oil such that         region who support the petition account
requisite industry support, the statute              generally there remains no significant        for: (1) at least 25 percent of the total
directs the Department to look to                    similarities between the two products in      production of the domestic like product
producers and workers who account for                terms of physical characteristics and         in the region; and (2) more than 50
production of the domestic like product.             uses. Because of the differences in           percent of the production of the
The International Trade Commission                   characteristics and uses, we determine        domestic like product produced in the
(ITC), which is responsible for                      that refined products are not within the      region by that portion of the industry
determining whether the domestic                     domestic like product for purposes of         expressing support for, or opposition to,
industry has been injured, must also                 determining industry support for the          the petition.
determine what constitutes a domestic                petitions. See Memorandum from the               The petitioner alleges that, based on
like product in order to define the                  Team to Richard W. Moreland,                  the support of individual producers and
industry. While both the Department                  regarding ‘‘Domestic Like Product,’’          support by a number of industry
and the ITC must apply the same                      dated August 9, 1999, for additional          associations, the petitions have the
statutory provision regarding the                    analysis.                                     required support of the industry. As of
domestic like product (section 771(10)                  The issue of whether ‘‘lease               July 27, 1999, the Department had
of the Act), they do so for different                condensates’’ are included properly           received letters from 20 domestic
purposes and pursuant to separate and                within the domestic like product is           producers opposing the petitions. In the
distinct authority. In addition, the                 more complicated. Lease condensates           aggregate, these producers accounted for
Department’s determination is subject to             consist essentially of a mixture of           approximately 50 percent of total
limitations of time and information.                 certain hydrocarbon compounds that, in        production within the region. Because
Although this may result in different                terms of weight and complexity, fall          there was a question as to whether the
definitions of the domestic like product,            between natural gas and crude oil. They       petitioner met the statutory
such differences do not render the                   are liquids formed from natural gas as        requirements concerning industry
decision of either agency contrary to the            a result of temperature or pressure           support cited above, we exercised our
law.2                                                changes. Often lease condensates are          statutory discretion under sections
   Section 771(10) of the Act defines the            mixed with crude oil and the resulting        702(c)(1)(B) and 732(c)(1)(B) of the Act
domestic like product as ‘‘a product                 mixture is sold to a refinery as crude oil.   to extend the deadline for determining
which is like, or in the absence of like,               The petitioner argues that the             whether to initiate investigations to a
most similar in characteristics and uses             Department should not include lease           maximum of 40 days from the date of
with, the article subject to an                      condensates in the domestic like              filing in order to resolve this issue. See
investigation under this title.’’ Thus, the          product because the mixture of                Memorandum from the Industry
                                                     hydrocarbon compounds in lease                Support Team to Richard W. Moreland,
  2 See Algoma Steel Corp., Ltd. v. United States,   condensates is different from the             regarding ‘‘Determination of Industry
688 F. Supp. 639, 642–44 (CIT 1988), and High        mixture of hydrocarbon compounds in           Support,’’ dated July 30, 1999.
Information Content Flat Panel Displays and          crude oils. Consequently, it asserts,            In order to determine the level of
Display Glass Therefor from Japan; Final
Determination; Rescission of Investigation and
                                                     lease condensates can only be refined         industry support for the petitions, the
Partial Dismissal of Petition, 56 FR 32376, 32380–   into a limited range of products.             Department surveyed (1) each of the 410
81 (July 16, 1991).                                  Opposing the petitioner’s position, other     largest producers in the region, which
44482                  Federal Register / Vol. 64, No. 157 / Monday, August 16, 1999 / Notices

accounted for over 86 percent of             related producer. We have not resolved       Committee members alleged to be
regional production, and (2) a 401-          these questions; rather, we looked first     related to foreign producers. In addition,
company sample of the remaining              at the question of whether the opposing      we have determined that the Committee
producers in the region. The purpose of      domestic producers had established that      members who import should not be
the survey was to ascertain the              their interests as domestic producers        excluded because those domestic
companies’ positions with regard to the      would be adversely affected by the           producers have demonstrated that their
petitions. We received responses from        imposition of an antidumping or              opposition to the petitions is based on
41 percent of the 410 companies and 18       countervailing duty order, in which case     their concern that the imposition of an
percent of the sampled 401 companies.        the issue of whether they are related        antidumping or countervailing duty
   As mentioned above, we received           parties becomes moot. In this regard, we     order would adversely affect their
letters of opposition from a number of       focused our analysis on the API Ad Hoc       interests as domestic producers. For a
companies who accounted for                  Free Trade Committee (the Committee)         further discussion, see Memorandum
approximately 50 percent of total            because it is composed of the largest        from the Industry Support Team to
regional production. Based on the            U.S. producers in opposition to the          Richard W. Moreland, regarding
surveys, additional companies indicated      petitions and because its treatment is       ‘‘Consideration of Opposition from
that they opposed the petitions.             dispositive of the industry support
                                                                                          Domestic Producers Alleged to Be
   The petitioner submitted comments         issue.
                                                                                          Related to Foreign Producers and/or
alleging that certain companies opposed         The Committee argues that its
                                                                                          Importing Subject Merchandise,’’ dated
to the petitions are related to producers    opposition is not based on foreign
                                                                                          August 9, 1999.
in the subject countries and that a          interests or imports, but rather on the
number of those companies are                based on the fact that the Committee            Based on the opposition we received
importers of subject merchandise. The        members’ interests as domestic               from companies we have determined
petitioner argues that, consistent with      producers would be adversely affected        not to disregard, we find that the
sections 702(c)(4)(B) and 732(c)(4)(B) of    by the imposition of antidumping or          petitions do not have support from more
the Act, the positions of these              countervailing duties. The Committee         than 50 percent of the production in the
companies should be disregarded.             also argues that the petitioner has not      region of the domestic like product
   Sections 702(c)(4)(B) and 732(c)(4)(B)    alleged that each U.S. producer about        produced by that portion of the industry
of the Act provide that the position of      which allegations were made is related       expressing support for, or opposition to,
certain domestic producers may be            to a foreign producer in each of the         the petitions. The opposition of the
disregarded for purposes of determining      subject countries. Moreover, the             Committee and companies not
industry support. Specifically,              petitioner has provided no basis for         challenged by the petitioner ranges from
subsection (B)(i) provides that the          assuming that a relationship in one          65 to 68 percent across the various
position of domestic producers who           country would cause a producer to            cases. See Memorandum from the
oppose the petition shall be disregarded     oppose a case against another country        Industry Support Team to Richard W.
‘‘if such producers are related to foreign   with potentially competing suppliers.        Moreland, regarding ‘‘Calculation of
producers * * * unless such domestic            Even assuming there are                   Industry-Support Percentages,’’ dated
producers demonstrate that their             relationships, the Committee argues,         August 9, 1999. Accordingly, we
interests as domestic producers would        because the interest of domestic             determine that the petitions are not filed
be adversely affected by the imposition      producers opposing the petition would        on behalf of the domestic industry
of an antidumping [or countervailing]        be adversely affected by the imposition      within the meaning of sections 702(b)(1)
duty order.’’ Additionally, subsection       of an order, the Department must             and 732(b)(1) of the Act.
(B)(ii) provides that the position of        consider their views. The arguments
domestic producers of a domestic like        and information presented by the               There are a number of complex issues
product who are importers of the subject     Committee to demonstrate the adverse         regarding the 25-percent test which we
merchandise may be disregarded.              affects it believes would ensue are          are not addressing because the 50-
   Our analysis of whether to disregard      described in its August 2, 1999, and         percent test has not been met.
any positions focused on whether the         August 4, 1999, submissions. Finally,           Because the petitions did not have the
opposing companies have demonstrated         with respect to imports, the Committee       required industry support, all other
that their interests as domestic             argues that importing is a standard          issues are moot. Notice is hereby given
producers would be affected adversely        practice in the U.S. oil industry and that   that the petitions are dismissed and the
by the imposition of an antidumping or       the large producers account for only a       proceedings terminated.
countervailing duty order. Because we        small portion of total imports.
are able to resolve the issue on this        Moreover, the Committee argues,              International Trade Commission
basis, we need not determine whether         domestic producers which oppose the          Notification
these companies are related to foreign       petition are not bound to imports from
producers. We note, however, that we         the subject countries. Therefore, the          We have notified the ITC of our
have serious questions about the             Committee argues, the Department             determination, as required by sections
sufficiency of the petitioner’s              should not disregard its opposition.         702(d) and 732(d) of the Act.
allegations. For example, we question           After reviewing comments submitted          This notice is published pursuant to
whether the petitioner has provided          by all parties, we believe that the          section 777(i) of the Act.
sufficient evidence of any relationship,     Committee and other opposing                   Dated: August 9, 1999.
as defined in section 771(4)(B) of the       companies have demonstrated that their
Act, and, in the case of alleged             interests as domestic producers would        Robert S. LaRussa,
relationships as defined in section          be adversely affected by the imposition      Assistant Secretary for Import
771(4)(B)(ii)(IV) of the Act, that these     of an antidumping or countervailing          Administration.
relationships would cause the domestic       duty order. Accordingly, we have not         [FR Doc. 99–21197 Filed 8–13–99; 8:45 am]
producer to act differently than a non-      disregarded the opposition of the            BILLING CODE 3510–DS–P
                       Federal Register / Vol. 64, No. 157 / Monday, August 16, 1999 / Notices                              44483

DEPARTMENT OF COMMERCE                       steel flat products from Japan. On           7212.50.0000, 7212.60.0000,
                                             August 31, 1998, Nippon Steel                7215.90.1000, 7215.90.3000,
International Trade Administration           Corporation (‘‘NSC’’) and Kawasaki           7215.90.5000, 7217.20.1500,
                                             Steel Corporation (‘‘KSC’’) requested        7217.30.1530, 7217.30.1560,
[A–588–824]
                                             reviews of their exports to the United       7217.90.1000, 7217.90.5030,
Certain Corrosion-Resistant Carbon           States of corrosion-resistant steel. On      7217.90.5060, and 7217.90.5090.
Steel Flat Products From Japan:              September 29, 1998, in accordance with       Included are flat-rolled products of non-
Preliminary Results of Antidumping           section 751 of the Act, we published a       rectangular cross-section where such
Duty Administrative Review                   notice of initiation of administrative       cross-section is achieved subsequent to
                                             review of this order for the period          the rolling process (i.e., products which
AGENCY:  Import Administration,              August 1, 1997 through July 31, 1998         have been worked after rolling)—for
International Trade Administration,          (63 FR 51893).                               example, products which have been
U.S. Department of Commerce.                   Under section 751(a)(3)(A) of the Act,     beveled or rounded at the edges.
ACTION: Notice of preliminary results of     the Department may extend the                Excluded are flat-rolled steel products
the antidumping duty administrative          deadline for completion of an                either plated or coated with tin, lead,
review of certain corrosion-resistant        administrative review if it determines       chromium, chromium oxides, both tin
carbon steel flat products from Japan.       that it is not practicable to complete the   and lead (‘‘terne plate’’), or both
                                             review within the statutory time limit of    chromium and chromium oxides (‘‘tin-
SUMMARY: In response to requests from        365 days. On February 24, 1999, the          free steel’’), whether or not painted,
interested parties, the Department of        Department published a notice of             varnished or coated with plastics or
Commerce (‘‘the Department’’) is             extension of the time limit for the          other nonmetallic substances in
conducting an administrative review of       preliminary results of this review to        addition to the metallic coating. Also
the antidumping duty order on certain        August 1, 1999. See Corrosion-Resistant      excluded are clad products in straight
corrosion-resistant carbon steel flat        Carbon Steel Flat Products From Japan:       lengths of 0.1875 inch or more in
products from Japan. This review covers      Extension of Time Limit for Preliminary      composite thickness and of a width
two manufacturers of the subject             Results of the Antidumping Duty              which exceeds 150 millimeters and
merchandise. The period of review            Administrative Review, 64 FR 9127            measures at least twice the thickness.
(‘‘POR’’) is August 1, 1997 through July     (February 24, 1999). Petitioners             Also excluded are certain clad stainless
31, 1998.                                    submitted comments for consideration         flat-rolled products, which are three-
   We have preliminarily determined          for the preliminary results for NSC and      layered corrosion-resistant carbon steel
that certain sales subject to this review    KSC on July 22, 1999, and July 20, 1999,     flat-rolled products less than 4.75
have been made below normal value            respectively. The Department is              millimeters in composite thickness that
(‘‘NV’’). If these preliminary results are   conducting this review in accordance         consist of a carbon steel flat-rolled
adopted in our final results of this         with section 751(a) of the Act.              product clad on both sides with
administrative review, we will instruct      Scope of Reviews                             stainless steel in a 20%-60%-20% ratio.
the U.S. Customs Service to assess                                                        The HTS item numbers are provided for
antidumping duties based on the                 This review covers flat-rolled carbon     convenience and Customs purposes.
difference between the export price          steel products, of rectangular shape,        The written description remains
(‘‘EP’’) and the NV.                         either clad, plated, or coated with          dispositive of the scope of this review.
                                             corrosion-resistant metals such as zinc,        Also excluded are certain corrosion-
EFFECTIVE DATE: August 16, 1999.             aluminum, or zinc-, aluminum-, nickel-       resistant carbon steel flat products
FOR FURTHER INFORMATION CONTACT:             or iron-based alloys, whether or not         meeting the following specifications: (1)
Doreen Chen, Brandon Farlander, or           corrugated or painted, varnished or          widths ranging from 10 millimeters
Rick Johnson, Import Administration,         coated with plastics or other                (0.394 inches) through 100 millimeters
International Trade Administration,          nonmetallic substances in addition to        (3.94 inches); (2) thicknesses, including
U.S. Department of Commerce, 14th            the metallic coating, in coils (whether or   coatings, ranging from 0.11 millimeters
Street and Constitution Avenue, N.W.,        not in successively superimposed             (0.004 inches) through 0.60 millimeters
Washington, DC 20230; telephone: (202)       layers) and of a width of 0.5 inch or        (0.024 inches); and (3) a coating that is
482–0413, 482–0182, or 482–3818,             greater, or in straight lengths which, if    from 0.003 millimeters (0.00012 inches)
respectively.                                of a thickness less than 4.75 millimeters,   through 0.005 millimeters (0.000196
SUPPLEMENTARY INFORMATION:                   are of a width of 0.5 inch or greater and    inches) in thickness and that is
                                             which measures at least 10 times the         comprised of either two evenly applied
The Applicable Statute                       thickness or if of a thickness of 4.75       layers, the first layer consisting of 99%
   Unless otherwise indicated, all           millimeters or more are of a width           zinc, 0.5% cobalt, and 0.5%
citations to the Tariff Act of 1930, as      which exceeds 150 millimeters and            molybdenum, followed by a layer
amended (‘‘the Act’’), are to the            measures at least twice the thickness, as    consisting of chromate, or three evenly
provisions effective January 1, 1995, the    currently classifiable in the Harmonized     applied layers, the first layer consisting
effective date of the amendments made        Tariff Schedule of the United States         of 99% zinc, 0.5% cobalt, and 0.5%
to the Act by the Uruguay Round              (‘‘HTSUS’’) under item numbers               molybdenum followed by a layer
Agreements Act (‘‘URAA’’). In addition,      7210.30.0030, 7210.30.0060,                  consisting of chromate, and finally a
unless otherwise indicated, all citations    7210.41.0000, 7210.49.0030,                  layer consisting of silicate.
to the Department’s regulations are to 19    7210.49.0090, 7210.61.0000,
CFR Part 351 (1998).                         7210.69.0000, 7210.70.6030,                  Verification
                                             7210.70.6060, 7210.70.6090,                    As provided in section 782(i) of the
Background                                   7210.90.1000, 7210.90.6000,                  Act, we verified sales information
  On July 19, 1993, the Department           7210.90.9000, 7212.20.0000,                  provided by NSC and sales and cost
published in the Federal Register (58        7212.30.1030, 7212.30.1090,                  information provided by KSC, using
FR 37154) the antidumping duty order         7212.30.3000, 7212.30.5000,                  standard verification procedures,
on certain corrosion-resistant carbon        7212.40.1000, 7212.40.5000,                  including on-site inspection of the
44484                  Federal Register / Vol. 64, No. 157 / Monday, August 16, 1999 / Notices

manufacturer’s facilities and the            Product Comparisons                          of the export transaction, we make a
examination of relevant sales and               In accordance with section 771(16) of     LOT adjustment under section
financial records. Our verification          the Act, we considered all products          773(a)(7)(A) of the Act. See Notice of
results are outlined in the public           produced by respondents covered by the       Final Determination of Sales at Less
versions of the verification reports,        description in the ‘‘Scope of the            Than Fair Value: Certain Cut-to-Length
which are on file with the Department                                                     Carbon Steel Plate from South Africa,
                                             Review’’ section of this notice, (supra),
in the Central Records Unit, Room B-                                                      62 FR 61731 (November 19, 1997).
                                             and sold in the home market during the
099.                                         period of review (‘‘POR’’), to be foreign    NSC
Transactions Reviewed                        like products for purposes of                   In the present review, NSC claimed
                                             determining appropriate product              that only one LOT existed and did not
  In accordance with section 751 of the      comparisons to U.S. sales. Where there       request a LOT adjustment. To evaluate
Act, the Department is required to           were no sales of identical merchandise       LOTs, we examined information
determine the EP (or Constructed Export      in the home market to compare to U.S.        regarding the distribution systems in
Price (‘‘CEP’’)) and NV of each entry of     sales, we compared U.S. sales to the         both the U.S. and home market,
subject merchandise.                         most similar foreign like product on the     including the selling functions, classes
                                             basis of the characteristics listed in       of customer, and selling expenses.
NSC                                          Appendix V of the Department’s                  NSC reported one LOT in the home
   On October 9, 1998, respondent            September 19, 1998 antidumping               market based on two classes of
requested that it be relieved from           questionnaire. In making product             customers: trading companies and end-
                                             comparisons, we matched foreign like         users. We examined the reported selling
reporting certain information, e.g., price
                                             products based on the physical               functions and found that NSC provides
adjustments, for home market sales by
                                             characteristics reported by respondents      the same selling functions to its home
certain of NSC’s affiliated
                                             and verified by the Department.              market customers regardless of channel
manufacturers. Respondent argued that
                                             Consistent with Department practice,         of distribution. We preliminarily
it should not be required to report such
                                             we matched a given U.S. sale to foreign      conclude that the selling functions
information on sales by these affiliated     market sales of the next most similar
manufacturers because these sales were                                                    between the reported channels of
                                             model when all sales of the most             distribution are sufficiently similar to
not exported to the United States and        comparable model were below cost.            consider them as one LOT in the
would not provide the most similar
                                             Fair Value Comparisons                       comparison market.
product matches to the subject                                                               NSC stated that it sells to one LOT in
merchandise under review. Therefore,            To determine whether sales of subject     the United States: trading companies.
respondent reported only matching            merchandise to the United States were        We compared the selling functions
characteristics for these sales.             made at less than fair value, we             performed at the home market LOT and
   In addition, for other home market        compared the EP to the NV, as described      the LOT in the United States and found
sales by affiliated parties, NSC stated      in the ‘‘United States Price’’ and           them substantially similar. Of the
that it was unable to collect sales data     ‘‘Normal Value’’ sections of this notice.    thirteen selling functions reported for
from all affiliated resellers. See           In accordance with section 777A(d)(2)        home market sales, twelve of the selling
Questionnaire Response, dated                of the Act, we calculated monthly            functions were identical to U.S. sales.
December 8, 1998 at p. B–5. For further      weighted-average prices for NV and           For a further discussion of the
discussion of NSC’s downstream sales,        compared these to individual U.S.            Department’s LOT analysis, see Analysis
see Normal Value (Section C,                 transaction prices.                          Memorandum: Preliminary Results of
‘‘Downstream Sales’’), below.                Level of Trade (‘‘LOT’’)                     the Antidumping Review of Corrosion-
                                                                                          Resistant Carbon Steel Flat Products for
KSC                                            In accordance with section                 NSC (‘‘Analysis Memo: Preliminary
                                             773(a)(1)(B) of the Act, to the extent       Results for NSC’’), (August 2, 1999).
   KSC reported export sales that            practicable, we determine NV based on
occurred in only one month and                                                            Therefore, the Department preliminarily
                                             sales in the comparison market at the        finds that no LOT adjustment is
consisted of only prime merchandise.         same level of trade (‘‘LOT’’) as the EP or   warranted for NSC.
On October 6, 1998, KSC requested that       CEP transaction. The NV LOT is that of
it report sales from only a six-month        the starting-price sales in the              KSC
home market period because KSC’s             comparison market or, when NV is                To evaluate LOTs, we examined
export sales occurred in only one            based on CV, that of the sales from          information regarding the distribution
month. On October 20, 1998, we               which we derive SG&A expenses and            systems in both the U.S. and home
allowed KSC to report sales for a six        profit. For EP, the U.S. LOT is also the     market, including the selling activities,
month period in accordance with              level of the starting-price sale, which is   classes of customers, and selling
section 351.414(e)(2)(ii)–(iii) of the       usually from exporter to importer.           expenses. In the present review, KSC
Department’s regulations. On November          To determine whether NV sales are at       reported two LOTs in the home market
12, 1998, KSC requested that the             a different LOT than EP, we examine          and one LOT in the U.S. market. KSC
Department allow it to report only           stages in the marketing process and          stated that the LOTs in the home market
merchandise similar to U.S. sales.           selling functions along the chain of         have consistent price differences. Thus,
Specifically, KSC requested that it only     distribution between the producer and        KSC requested an LOT adjustment if
report sales and cost information for        the unaffiliated customer. If the            sales at different LOTs are compared. In
prime merchandise. On November 20,           comparison-market sales are at a             the U.S. market, KSC reported one
1998, we granted KSC’s requests, subject     different LOT, and the difference affects    channel of distribution in the one LOT,
to verification that its U.S. sale of        price comparability, as manifested in a      i.e., sales through an unaffiliated trading
subject merchandise consisted of only        pattern of consistent price differences      company.
prime merchandise and occurred in            between the sales on which NV is based          In the home market, KSC reported two
only one month.                              and comparison-market sales at the LOT       channels of distribution in the first LOT:
                       Federal Register / Vol. 64, No. 157 / Monday, August 16, 1999 / Notices                              44485

(1) sales to unaffiliated trading            eleven selling activities to its             KSC (‘‘Analysis Memo: Preliminary
companies; and (2) sales directly to end-    unaffiliated trading companies: market       Results for KSC’’) (August 2, 1999).
users (unaffiliated and affiliated). In      intelligence, end-user information, end-
                                                                                          Date of Sale
both channels of distribution, sales were    user contact lead role, marketing
made by either KSC or its affiliated         services, credit checks, end-user price        It is the Department’s current practice
producer, Kawatetsu Galvanizing Co.,         negotiations, daily issues end-user          normally to use the invoice date as the
Ltd. (‘‘Kawahan’’). KSC reported one         contact, warehousing, processing,            date of sale; we may, however, use a
channel of distribution in the second        arranging for freight, and evaluating        date other than the invoice date if we
LOT: sales through KSC’s affiliated          warranty claims. However, KSC and            are satisfied that a different date better
reseller, Kawasho Corporation                Kawahan’s level of involvement in these      reflects the date on which the exporter
(‘‘Kawasho’’) to distributors and end-       eleven selling activities was at a low       or producer establishes the material
users. These sales were made by both         level, except for warehousing,               terms of sale. See 19 CFR 351.401(i) (62
KSC and Kawahan.                             processing, arranging for freight, and       FR at 27411).
   For the preliminary results, we           evaluating warranty claims, which were
disagree with KSC’s classification for       at a high level. Based on this               NSC
the above channels of distribution, and      information, we find that KSC and              For its home market and U.S. sales,
have established the following two           Kawahan’s selling activities to its          NSC reported the date of shipment. NSC
LOTs in the home market: (1) affiliated      trading companies, whether affiliated or     stated that the invoice/shipment date
and unaffiliated trading companies; and      unaffiliated, were at the same LOT.          best reflects the date on which the
(2) end-users. KSC and Kawahan sold             We determined that differences            material terms of sale are established,
subject merchandise to two types of          existed with respect to selling activities   and that price and/or quantity can and
customers: (1) trading companies             KSC and Kawahan performed in making          do change between order confirmation
(affiliated or unaffiliated), and (2) end-   sales to these two types of customers.       date and invoice/shipment date. To
users. These sales represent two             For sales to end-users, KSC and              ascertain whether NSC accurately
different points in the chain of             Kawahan’s level of involvement for all       reported the date of sale, the
distribution between the producers and       twelve selling activities was high,          Department requested information
the final end-user. That is, in the one      whereas, for sales to trading companies      concerning the nature and frequency of
instance (sales to trading companies),       (either affiliated or unaffiliated), KSC     price and quantity changes occurring
the subject merchandise passes through       and Kawahan’s level of involvement           between the date of order confirmation
the intermediary parties, while in the       was in only nine selling activities for      and date of invoice. See Supplemental
other case, sales are made without any       the affiliated trading company and           Questionnaire for Section A (November
intervening parties. As a result, these      eleven selling activities for the            13, 1998).
sales to different points in the             unaffiliated trading companies, as noted
                                                                                            In its December 11, 1998, December
distribution chain appear to represent       above. In addition, of these nine selling
                                                                                          29, 1998 and February 18, 1999,
different levels of trade in the home        activities that KSC and Kawahan was
                                                                                          responses, NSC indicated that there
market.                                      involved in for its affiliated trading
   The Department then examined                                                           were numerous instances in which the
                                             company, KSC and Kawahan’s level of
whether any differences existed with                                                      essential terms of sale changed
                                             involvement was low for eight selling
respect to the selling activities KSC                                                     subsequent to the confirmation of the
                                             activities. Finally, of the eleven selling
performed in making sales to these two       activities that KSC and Kawahan was          original orders in the U.S. and home
types of customers. Regarding the            involved in for its unaffiliated trading     markets. NSC reported the percentage of
selling activities with respect to the       companies, KSC and Kawahan’s level of        total quantity shipped that had changes
sales to end-users, KSC and Kawahan          involvement was low for seven selling        in the material terms of sale subsequent
conducted the following twelve selling       activities.                                  to the confirmation of original orders in
activities: market intelligence, end-user       Based on the different points in the      the U.S. and home markets. See
information, end-user contact lead role,     chain of distribution and the differences    December 11, 1998 Supplemental
marketing services, credit checks, end-      in selling functions between the trading     Response at p. 1; Verification Exhibit 1,
user price negotiations, daily issues        companies and the end-users, the             Revised Exhibit SS–A5 of the February
end-user contact, warehousing,               Department preliminarily finds that two      19, 1999 Supplemental Response; and
processing, arranging for freight,           levels of trade exist for KSC’s sales in     Analysis Memo: Preliminary Results for
payment collection, and evaluating           the home market. Furthermore, the U.S.       NSC (August 2, 1999).
warranty claims. KSC and Kawahan’s           sales were at the same LOT as KSC’s            At verification, we examined NSC’s
level of involvement in these twelve         home market sales to trading                 selling practices and found that it
selling activities was high.                 companies.                                   records sales in its financial records by
   Regarding sales to trading companies,        The Department then checked to            date of invoice/shipment. We reviewed
KSC and Kawahan conducted the                determine whether a pattern of               several sales observations for which the
following nine selling activities to its     consistent price differences existed         price and quantity changed subsequent
affiliated trading company: market           between the two home market levels of        to the original order. We reviewed and
intelligence, end-user information, end-     trade. The Department found that no          confirmed the accuracy of NSC’s
user contact lead role, marketing            pattern of consistent price differences      reported percentage of the number of
services, end-user price negotiations,       existed between the home market LOTs         sales that had material changes in terms
daily issues end-user contact,               by running a pattern of price difference     of sale subsequent to the order
warehousing, processing, and evaluating      SAS program. Therefore, we did not           confirmation. We are satisfied that the
warranty claims. KSC and Kawahan’s           adjust NV to account for any differences     date of invoice/shipment best reflects
level of involvement in these nine           in LOT. For a further discussion of the      the date on which material terms of sale
selling activities was at a low level        Department’s LOT analysis, see Analysis      were established for NSC’s U.S. and
except for evaluating warranty claims,       Memorandum: Preliminary Results of           home market sales. Therefore, the
which was at a high level. KSC and           the Antidumping Review of Corrosion-         Department is preliminarily using the
Kawahan conducted the following              Resistant Carbon Steel Flat Products for     dates of sales reported by NSC.
44486                   Federal Register / Vol. 64, No. 157 / Monday, August 16, 1999 / Notices

KSC                                           NSC                                          be outside the ordinary course of trade.
                                                 The Department calculated EP for          See 19 CFR 351.102. To test whether
   For its home market and U.S. sales,                                                     these sales were made at arm’s length
KSC reported the date of invoice/             NSC based on packed, prepaid or
                                              delivered prices to customers in the         prices for each company, we compared,
shipment as the date of sale. KSC stated                                                   on a model-specific basis, the prices of
                                              United States. We made adjustments to
that the invoice/shipment date best                                                        sales to affiliated and unaffiliated
                                              the starting price, net of billing
reflects the date on which the material                                                    customers net of all applicable
                                              adjustments, for movement expenses
terms of sale are established and that                                                     discounts, rebates, billing adjustments,
                                              (foreign and U.S. movement, brokerage
price and/or quantity can and do change                                                    movement charges, direct selling
                                              and handling, and U.S. Customs duties),
between order confirmation date and           in accordance with section 772(c)(2) of      expenses, and packing. Where, for the
invoice/shipment date. To ascertain           the Act.                                     tested models of subject merchandise,
whether KSC accurately reported the                                                        prices to the affiliated party were on
date of sale, the Department requested        KSC                                          average 99.5 percent or more of the
information concerning the nature and            The Department calculated EP for          price to unaffiliated parties, we
frequency of price and quantity changes       KSC based on packed, prepaid or              determined that sales made to the
occurring between the date of order           delivered prices to customers in the         affiliated party were at arm’s length and
confirmation and date of invoice. See         United States. We made adjustments to        used those sales in determining NV. See
Supplemental Questionnaire for Section        the starting price, net of billing           19 CFR 351.403(c). In instances where
A dated November 13, 1998.                    adjustments, for movement expenses           no price ratio could be constructed for
   In its December 4, 1998 and March 22,      (foreign and U.S. movement, brokerage        an affiliated customer because identical
1999 supplemental questionnaire               and handling, and U.S. Customs duties),      merchandise was not sold to
responses, KSC indicated that there           in accordance with section 772(c)(2) of      unaffiliated customers, we were unable
                                              the Act.                                     to determine that these sales were made
were numerous instances in which
                                                                                           at arm’s length prices and, therefore,
material terms of sales, such as price        Normal Value                                 excluded them from our LTFV analysis.
and quantity, changed subsequent to the
                                                After testing home market viability        See Notice of Final Determination of
confirmation of the original orders in
                                              and whether home market sales were           Sales at Less Than Fair Value: Certain
the U.S. and home markets. KSC                made at prices that were below the cost      Cold-Rolled Carbon Steel Flat Products
reported the percentages of orders            of production, we calculated NV as           from Argentina, 58 FR 37062, 37077
which had a change in the material            noted in the ’’Price-to-Price                (July 9, 1993). Where the exclusion of
terms of sale after the order                 Comparisons’’ and ’’Price-to-CV              such sales eliminated all sales of the
confirmation date (see KSC’s March 22,        Comparison’’ sections of this notice. In     most appropriate comparison product,
1999 Supplemental Questionnaire               addition, in accordance with section         we made a comparison to the next most
Response at p. 6–7) and the percentages       773(a)(1)(B)(i) of the Act, where            similar product.
of home market sales of subject               possible, we based NV on sales at the
merchandise that were revised after                                                        C. Downstream Sales
                                              same level of trade (‘‘LOT’’) as the U.S.
shipment (Id. at pp. 9–10; Sales              price. See the Level of Trade section           Pursuant to section 351.403 of the
Verification Exhibit (‘‘SVE’’) 37). As this   above.                                       Department’s regulations, the
involves proprietary information, see                                                      Department does not normally require
Analysis Memo: Preliminary Results for        A. Home Market Viability                     the reporting of downstream sales if
KSC (August 2, 1999).                            In order to determine whether there is    total sales of the foreign like product by
   At verification, we examined KSC’s         a sufficient volume of sales in the home     a firm to all affiliated customers account
selling practices and found that KSC          market to serve as a viable basis for        for five percent or less of the firm’s total
records sales in its financial records by     calculating NV (i.e., the aggregate          sales of the foreign like product. The
date of invoice/shipment. We reviewed         volume of home market sales of the           questions concerning the reporting of
several sales observations for which the      foreign like product is equal to or          downstream sales are complicated, and
price and quantity changed subsequent         greater than five percent of the aggregate   the resolution of such questions
to the original order. We reviewed and        volume of U.S. sales), we compared           depends on a number of considerations,
confirmed the accuracy of KSC’s               each respondent’s volume of home             including the nature of the merchandise
                                              market sales of the foreign like product     sold to and by the affiliate, the volume
reported percentage of the number of
                                              to the volume of U.S. sales of the subject   of sales to the affiliate, the levels of
sales that had material changes in terms
                                              merchandise, in accordance with              trade involved, and whether sales to
subsequent to the order confirmation.
                                              section 773(a)(1)(C) of the Act. Since       affiliates were made at arm’s length. Id.
We are satisfied that the date of invoice/
                                              each respondent’s aggregate volume of        In addition, the Department normally
shipment best reflects the date on which                                                   will not require the respondent to report
                                              home market sales of the foreign like
material terms of sales were established                                                   the affiliate’s downstream sales unless
                                              product was greater than five percent of
for KSC’s U.S. and home market sales.                                                      the sales to the affiliate fail the arm’s
                                              its aggregate volume of U.S. sales for the
Therefore, the Department is                                                               length test. Id. The Department believes
                                              subject merchandise, we determined
preliminarily using the dates of sales                                                     that imposing the burden of reporting
                                              that the home market was viable for
reported by KSC.                                                                           small numbers of downstream sales
                                              both respondents. Therefore, we have
United States Price                           based NV on home market sales in the         often is not warranted, and that the
                                              usual commercial quantities and in the       accuracy of determinations generally is
   For calculation of the price to the        ordinary course of trade.                    not compromised by the absence of such
United States, we used EP because the                                                      sales. Id.
subject merchandise was sold prior to         B. Arm’s Length Test                            As discussed below, after examining
importation, directly or indirectly to the      Sales to affiliated customers in the       the data placed on the record, the
first unaffiliated purchaser in the United    home market not made at arm’s length         Department has preliminarily
States and CEP was not otherwise              prices (if any) were excluded from our       determined that for both NSC and
warranted.                                    analysis because we considered them to       Kawasaki, there are sufficient matches
                        Federal Register / Vol. 64, No. 157 / Monday, August 16, 1999 / Notices                              44487

of sales in the home market, and that the    downstream customers. KSC was unable          accordance with section 773(b)(3) of the
downstream sales in question account         to report Kawahan’s affiliates’ sales to      Act, we calculated each respondent’s
for less than five percent of each firm’s    its downstream customers because              COP based on the sum of the costs of
total home market sales of subject           Kawahan cannot recover any product            materials and fabrication employed in
merchandise. Thus, for purposes of           characteristic data to link its affiliates’   producing the foreign like product plus
these preliminary results, the               sales to Kawahan’s sale to its affiliates.    SG&A expenses and all costs and
Department has allowed this limited          In addition, one of Kawahan’s affiliated      expenses incidental to placing the
reporting for downstream sales since we      customers refused to provide its              foreign like product in condition packed
found adequate home market matches to        downstream sales data, despite                and ready for shipment. In our COP
U.S. sales.                                  Kawahan’s request. At verification, we        analysis, we used each respondent’s
                                             examined KSC’s ability to report the          home market sales and COP information
NSC
                                             sales from affiliates of Kawahan and          provided in its questionnaire responses,
   In its response to the questionnaire,     Kawasho. See Sales Verification Report        with the following exceptions. First,
NSC stated that it was unable to collect     for additional information. We also           where KSC reported more than one cost
sales data from all affiliated resellers.    reviewed, at verification, Kawasaki’s         for the same CONNUM, we calculated a
See Questionnaire Response, dated            claim that Kawasho’s total sales of KSC-      single weighted-average cost for each
December 8, 1998 at p. B–5. (As this         and Kawahan-produced subject                  CONNUM using the reported
involves proprietary information, see        merchandise to affiliated resellers are       production quantities. Second, we
Analysis Memo: Preliminary Results for       less than five percent of total home          revised variable cost of manufacturing
NSC, August 2, 1999.) Thus, NSC only         market sales, as stated in KSC’s October
reported sales by one affiliated reseller.                                                 because KSC double counted labor
                                             28, 1998, section A response, page A–         costs. Third, we revised KSC’s financial
Id. The Department requested that NSC        3. We found no discrepancies. See SVE
further explain its selection                                                              expense rate. See Analysis Memo:
                                             31, Analysis of Kawasho’s Sales to            Preliminary Results for KSC for further
methodology for reporting sales by           Affiliated Resellers. Because this issue
affiliated resellers. See Second                                                           information.
                                             includes proprietary information, see
Supplemental Questionnaire dated             Analysis Memo: Preliminary Results for        2. Test of Home Market Prices
November 13, 1998 at p. 1. NSC               KSC for further discussion. Based on
elaborated concerning its inability to       these responses, for the preliminary             After calculating each respondent’s
report sales, its methodology in             results, we have used the data as             COP, we tested whether home market
reporting certain transactions and the       provided by KSC for the purposes of           sales of subject merchandise were made
impact of reporting resales on the           establishing NV.                              at prices below COP and, if so, whether
dumping margin. See Second                                                                 the below-cost sales were made within
Supplemental Questionnaire Response          D. Cost of Production (COP) Analysis          an extended period of time in
dated December 11, 1998 at pp. 4–5.             For the class or kind of merchandise       substantial quantities and at prices that
Based on these responses, for the            under review, the Department                  did not permit recovery of all costs
preliminary results, we have used the        disregarded sales below the cost of           within a reasonable period of time.
data as provided by NSC for the              production (‘‘COP’’) in the last              Because each individual price was
purposes of establishing NV.                 completed review as of the date of the        compared to the POR average COP, any
                                             issuance of the antidumping                   sales that were below cost were also not
KSC
                                             questionnaire for NSC (Certain                at prices which permitted cost recovery
   KSC stated that it was not able to        Corrosion-Resistant Carbon Steel Flat         within a reasonable period of time. We
report all affiliated downstream sales       Products Final Results of Antidumping         compared model-specific COPs to the
information, because neither KSC nor its     Duty Administrative Review, 64 FR             reported home market prices less any
affiliates maintain the necessary            12951 (Mar 16, 1999) and for Kawasaki         applicable movement charges,
information. See KSC’s March 22, 1999        (Certain Corrosion-Resistant Carbon           discounts, and rebates.
Supplemental Response, page 21. As           Steel Flat Products from Japan:(see
reported by KSC, KSC/Kawahan sells to        Certain Hot-Rolled Carbon Steel Flat          3. Results of the COP Test
Kawasho Corporation (‘‘Kawasho’’),           Products, Certain Cold-Rolled Carbon
who then sells the product to affiliated     Steel Flat Products, and Certain                 Pursuant to section 773(b)(2)(C) of the
processors/distributors. At verification,    Corrosion-Resistant Carbon Steel Flat         Act, where less than 20 percent of a
we examined documentation for these          Products from Japan: Final                    respondent’s sales of a given model
transactions. However, as reported by        Determinations of Sales at Less Than          were at prices less than COP, we did not
KSC, when the affiliated processor/          Fair Value), 58 FR 37154 (July 9, 1993)).     disregard any below-cost sales of that
distributor sells the merchandise back to    We therefore had reasonable grounds to        model because the below-cost sales
Kawasho (after further processing the        believe or suspect, pursuant to section       were not made in substantial quantities
merchandise), most of the affiliated         773(b)(2)(A)(ii) of the Act, that sales of    within an extended period of time.
processors/distributors do not maintain      the foreign like product under                Where 20 percent or more of a
information to link these sales to the       consideration for the determination of        respondent’s sales of a given model
prior purchases from Kawasho. Thus,          NV in this review may have been made          during the POR were at prices less than
KSC provided limited downstream sales        at prices below the COP. Pursuant to          the weighted-average COPs for the POR,
made by its affiliated reseller, Kawasho     section 773(b)(1) of the Act, we initiated    we disregarded the below-cost sales
(specifically, KSC reported downstream       COP investigations of sales by                because they were made within an
sales for only one of Kawasho’s              respondents in the home market.               extended period of time in substantial
affiliated processors/distributors); and                                                   quantities in accordance with sections
reported sales made by Kawahan (itself       1. Calculation of COP                         773(b)(2)(B) and (C) of the Act, and were
a producer of subject merchandise               We compared each respondent’s sales        at prices which would not permit
affiliated with KSC) to its affiliates and   of the foreign like product in the home       recovery of all costs within a reasonable
non-affiliates, but did not report           market with each respondent’s model-          period of time in accordance with
Kawahan’s affiliates’ sales to its           specific COP figure for the POR. In           section 773(b)(2)(D) of the Act.
44488                   Federal Register / Vol. 64, No. 157 / Monday, August 16, 1999 / Notices

4. Calculation of CV                          where applicable, for packing and            calculated for the examined sales to the
   In accordance with section 773(e)(1)       movement expenses in accordance with         total customs value of the sales used to
of the Act, we calculated CV based on         sections 773(a)(6)(A) and (B) of the Act.    calculate those duties. This rate will be
the sum of respondent’s cost of               We also made adjustments for                 assessed uniformly on all entries of that
materials, fabrication, SG&A, including       differences in cost attributable to          particular importer during the POR.
interest expenses, and profit. We             differences in physical characteristics of
                                                                                              Furthermore, the following deposit
calculated the COP included in the            the merchandise pursuant to section
                                                                                           requirements will be effective for all
calculation of CV as noted above, in the      773(a)(6)(C)(ii) of the Act and for
                                              differences in circumstances of sale         shipments of the subject merchandise
’’Calculation of COP’’ section of the                                                      entered, or withdrawn from warehouse,
notice. In accordance with section            (‘‘COS’’) in accordance with
                                              773(a)(6)(C)(iii) of the Act and 19 CFR      for consumption on or after the
773(e)(2)(A) of the Act, we based SG&A                                                     publication date, as provided by section
and profit on the amounts incurred and        351.410. For comparison to EP, we
                                              made COS adjustments by deducting            751(a) of the Act: (1) the cash deposit
realized by the respondent in                                                              rate for NSC and KSC will be that
connection with the production and sale       home market direct selling expenses
                                              (credit, advertising, royalties, technical   established in the final results of review
of the foreign like product in the                                                         (except that if the rate is zero or de
ordinary course of trade, for                 service, and warranty expenses, where
                                              applicable) and adding U.S. direct           minimis, i.e., less than 0.5 percent, no
consumption in the foreign country.
                                              selling expenses (credit, and advertising    cash deposit rate will be required for
Price-to-Price Comparisons                    expenses, where applicable).                 that company); (2) for previously
NSC                                                                                        investigated companies not listed above,
                                              Price-to-CV Comparisons
                                                                                           the cash deposit rate will continue to be
   For those models for which there was          For price-to-CV comparisons, if           the company-specific rate published for
a sufficient quantity of sales at prices      necessary, we made adjustments to CV         the most recent period; (3) if the
above COP, we based NV on home                in accordance with section 773(a)(8) of      exporter is not a firm covered in this
market prices to unaffiliated purchasers,     the Act.                                     review, a previous review, or the
as well as affiliated purchasers passing                                                   original less than fair value (‘‘LTFV’’)
                                              Preliminary Results of Review
the arm’s length test, in accordance with
                                                 As a result of our review, we             investigation, but the manufacturer is,
19 CFR 351.403. Home market prices
                                              preliminarily determine the weighted-        the cash deposit rate will be the rate
were based on the packed, ex-factory or
                                              average dumping margins for NSC and          established for the most recent period
delivered prices to unaffiliated
purchasers in the home market.                KSC, for the period August 1, 1997           for the manufacturer of the
   We calculated the starting price net of    through July 31, 1998, to be as follows:     merchandise; (4) the cash deposit rate
discounts, and other sales adjustments,                                                    for all other manufacturers or exporters
where applicable. We made                      Manu-                             Margin
                                                                                           will continue to be the ‘‘all others’’ rate
                                              facturer/       Time period                  of 40.19 percent, established in the
adjustments, where applicable, for            exporter                          (percent)
packing and movement expenses in                                                           LTFV investigation for corrosion-
accordance with sections 773(a)(6)(A)         NSC ....       08/01/97–07/31/98        2.48 resistant steel products from Japan (see
and (B) of the Act. We also made              KSC ....       08/01/97–07/31/98        1.32 Final Determination, 58 FR 37154 (July
adjustments for differences in cost                                                        9, 1993)). These requirements, when
attributable to differences in physical          Parties to the proceeding may request imposed, shall remain in effect until
characteristics of the merchandise            disclosure within five days of the date      publication of the final results of the
pursuant to section 773(a)(6)(C)(ii) of       of publication of this notice. Any           next administrative review.
the Act and for differences in                interested party may request a hearing
                                              within 30 days of publication. Any           Notification of Interested Parties
circumstances of sale (‘‘COS’’) in
accordance with 773(a)(6)(C)(iii) of the      hearing, if requested, will be held 37          This notice serves as a preliminary
Act and 19 CFR 351.410. For                   days after the date of publication or the    reminder to importers of their
comparison to EP, we made COS                 first business day thereafter. Case briefs   responsibility under 19 CFR 351.402(f)
adjustments by deducting home market          from interested parties may be
                                                                                           to file a certificate regarding the
direct selling expenses (credit, royalties,   submitted not later than 30 days after
                                                                                           reimbursement of antidumping duties
discounts, and warranty expenses,             the date of publication of this notice.
                                                                                           prior to liquidation of the relevant
where applicable) and adding U.S.             Rebuttal briefs, limited to issues raised
                                                                                           entries during this review period.
direct selling expenses (credit, warranty,    in those briefs, may be filed not later
                                                                                           Failure to comply with this requirement
royalties, and discounts, where               than 35 days after the date of
                                              publication of this notice. The              could result in the Secretary’s
applicable).                                                                               presumption that reimbursement of
                                              Department will publish the final
KSC                                           results of this administrative review,       antidumping duties occurred and the
   For those models for which there was       including its analysis of issues raised in subsequent assessment of double
a sufficient quantity of sales at prices at   the case and rebuttal briefs, not later      antidumping duties.
or above COP, we based NV on home             than 120 days after the date of                 These results of the administrative
market prices to unaffiliated purchasers,     publication of this notice.                  review are issued and published in
as well as affiliated purchasers passing         Upon issuance of the final results of     accordance with sections 751(a)(1) and
the arm’s length test, in accordance with     review, the Department shall determine, 777(i)(1) of the Act.
19 CFR 351.403. Home market prices            and the U.S. Customs Service shall
                                                                                              Dated: August 9, 1999.
were based on the packed, ex-factory or       assess, antidumping duties on all
                                              appropriate entries. In accordance with      Robert S. LaRussa,
delivered prices to unaffiliated
purchasers in the home market.                19 CFR 351.212(b), we calculated an          Assistant Secretary for Import
   We calculated the starting price net of    importer-specific ad valorem duty            Administration.
billing adjustments and rebates, where        assessment rate based on the ratio of the [FR Doc. 99–21200 Filed 8–13–99; 8:45 am]
applicable. We made adjustments,              total amount of antidumping duties           BILLING CODE 3510–DS–P
                        Federal Register / Vol. 64, No. 157 / Monday, August 16, 1999 / Notices                             44489

DEPARTMENT OF COMMERCE                       1997 (63 FR 20378). In accordance with       DEPARTMENT OF COMMERCE
                                             19 CFR 351.213(b), this review covered
International Trade Administration           only those producers or exporters for        International Trade Administration
[C–428–812]                                  which a review was specifically              [C–475–819]
                                             requested. Accordingly, this review
Certain Hot-Rolled Lead and Bismuth          covered Saarstahl.                           Certain Pasta From Italy: Final Results
Carbon Steel Products From Germany:            On November 19, 1998, we extended          of the Second Countervailing Duty
Notice of Termination of                     the period for completion of the             Administrative Review
Countervailing Duty Administrative
                                             preliminary results pursuant to section      AGENCY:  Import Administration,
Review
                                             751(a)(3) of the Tariff Act of 1930, as      International Trade Administration,
AGENCY:  Import Administration,              amended. See Hot-Rolled Lead and             Department of Commerce.
International Trade Administration,          Bismuth Carbon Steel Products from           ACTION: Notice of final results of
Department of Commerce.                      Germany: Extension of the Time Limit         countervailing duty administrative
EFFECTIVE DATE: August 16, 1999.             for Preliminary Results of                   review.
SUMMARY: On April 24, 1998, the              Countervailing Duty Administrative
                                                                                          SUMMARY:    On April 12, 1999, the
Department of Commerce (the                  Review (63 FR 64235). On April 7, 1999,
                                                                                          Department of Commerce published in
Department) published in the Federal         we published our preliminary results of
                                                                                          the Federal Register its preliminary
Register a notice (63 FR 20378)              administrative review. See Certain Hot-      results of the second administrative
announcing the initiation of an              Rolled Lead and Bismuth Carbon Steel         review of the countervailing duty order
administrative review of the                 Products from Germany: Preliminary           on certain pasta from Italy for the period
countervailing duty order on certain         Results of Countervailing Duty               January 1, 1997 through December 31,
hot-rolled lead and bismuth carbon steel     Administrative Review (64 FR 16915).         1997. For information on the net
products from Germany, covering the          Subsequently, based on a request by          subsidy for each reviewed company, as
period January 1, 1997 through               Inland Steel Bar Company and USS/            well as for all non-reviewed companies,
December 31, 1997. Because the sole          KOBE Steel Co. (petitioners), we             see the Final Results of Review section
respondent company did not export any        conducted verification of the                of this notice. We will instruct the U.S.
subject merchandise to the United            questionnaire responses submitted.           Customs Service to assess
States during the period of                                                               countervailing duties as detailed in the
administrative review, the Department        Termination of Review
                                                                                          Final Results of Review section of this
is now terminating this administrative                                                    notice.
                                               At verification, we discovered that
review.                                                                                   EFFECTIVE DATE: August 16, 1999.
                                             Saarstahl misreported that it had
FOR FURTHER INFORMATION CONTACT:
                                             exported subject merchandise to the          FOR FURTHER INFORMATION CONTACT:
Robert Copyak, Office of AD/CVD                                                           Vincent Kane, Sally Hastings or Suresh
                                             United States during 1997. We verified
Enforcement VI, Import Administration,                                                    Maniam, AD/CVD Enforcement, Group
                                             that the company did not have any
U.S. Department of Commerce, 14th                                                         I, Office 1, Import Administration, U.S.
Street and Constitution Avenue, NW,          exports of subject merchandise to the
                                             United States during the period of           Department of Commerce, Room 1780,
Washington, DC 20230, telephone: (202)                                                    14th Street and Constitution Avenue,
482–4136.                                    review. Therefore, pursuant to section
                                             351.213(d)(3) of the Department’s            N.W., Washington, D.C. 20230;
SUPPLEMENTARY INFORMATION:                                                                telephone (202) 482–2815, 482–3464 or
                                             regulations, the Department is
Applicable Statute                           terminating this administrative review.      482–0176, respectively.
   Unless otherwise indicated, all             This notice serves as a reminder to        Applicable Statute
citations to the statute are references to   parties subject to administrative               Unless otherwise indicated, all
the provisions of the Tariff Act of 1930,    protective order (APO) of their              citations to the statute are references to
as amended by the Uruguay Round              responsibility concerning the                the provisions of the Tariff Act of 1930,
Agreements Act (URAA) effective              disposition of proprietary information       as amended by the Uruguay Round
January 1, 1995 (the Act). All citations     disclosed under APO in accordance            Agreements Act (‘‘URAA’’), effective
to the Department’s regulations              with section 351.305(a)(3) of the            January 1, 1995 (the Act). The
reference 19 CFR Part 351(April 1998),       Department’s regulations. Timely             Department is conducting this
unless otherwise indicated.                  written notification of the return or        administrative review in accordance
Background                                   destruction of APO materials or              with section 751(a) of the Act. In
                                             conversion to judicial protective order is   addition, unless otherwise indicated, all
  On March 22, 1993, the Department                                                       citations to the Department’s regulations
published in the Federal Register (58        hereby requested. Failure to comply
                                             with the regulations and the terms of an     are to the regulations codified at 19 CFR
FR 15325) the countervailing duty order                                                   351 (1998).
on certain hot-rolled lead and bismuth       APO is a sanctionable violation.
carbon steel products from Germany. On         This determination is issued and           Background
March 11, 1998, the Department               published in accordance with section           On July 24, 1996, the Department of
published a notice of ‘‘Opportunity to       751(a)(1) of the Act.                        Commerce (the Department) published
Request an Administrative Review’’ (63         Dated: August 3, 1999.                     in the Federal Register (61 FR 38544)
FR 11868) of this countervailing duty                                                     the countervailing duty order on certain
order. We received a timely request for      Robert S. LaRussa,
                                                                                          pasta from Italy.
review from Saarstahl AG (Saarstahl),        Assistant Secretary for Import                 In accordance with 19 CFR
the sole respondent company to this          Administration.                              351.213(b), this review of the order
proceeding. On April 24, 1998, we            [FR Doc. 99–21199 Filed 8–13–99; 8:45 am]    covers the producers or exporters of the
initiated the review, covering the period    BILLING CODE 3510–DS–P                       subject merchandise for which a review
January 1, 1997 through December 31,                                                      was specifically requested. They are:
44490                   Federal Register / Vol. 64, No. 157 / Monday, August 16, 1999 / Notices

Audisio Industrie Alimentari S.p.A.          (‘‘AMAB’’), by Bioagricoop Scrl, or by     Italy reference rate, adjusted upward to
(‘‘Audisio’’); the affiliated companies      QC&I International Services.               reflect the mark-up an Italian
Delverde SrL, Industrie Alimentari di           The merchandise under review is         commercial bank would charge a
Capitanata SrL, Sangralimenti SrL, and       currently classifiable under item          corporate customer, as the benchmark
Pietro Rotunno SrL (‘‘Delverde/              1902.19.20 of the Harmonized Tariff        interest rate for long-term loans and as
Tamma’’); Pastificio Fabianelli S.p.A.       Schedule of the United States (HTSUS).     the discount rate for years prior to 1995.
(‘‘Fabianelli’’); and Pastificio Riscossa    Although the HTSUS subheading is           For the years 1995 through 1997, we
F.lli Mastromauro SrL (‘‘Riscossa’’). The    provided for convenience and customs       used the Italian Bankers Association
petitioners in this review are Borden,       purposes, our written description of the   (‘‘ABI’’) interest rate increased by the
Inc., Hershey Foods Corp. and Gooch          scope of this review is dispositive.       average spread charged by banks on
Foods, Inc. This review covers 25                                                       loans to commercial customers plus an
                                             Scope Rulings
programs.                                                                               amount for bank charges. For a further
   Since the publication of the                 The Department has issued the           discussion of the interest rates used in
preliminary results of the second            following scope rulings to date:           these final results, see Memorandum to
administrative review of the                    (1) On August 25, 1997, the             File from Team, ‘‘Calculation
countervailing duty order on certain         Department issued a scope ruling that      Memorandum for Final Results—
pasta from Italy on April 12, 1999 (See      multicolored pasta, imported in kitchen    Interest Rates,’’ dated July 31, 1999.
Certain Pasta from Italy: Preliminary        display bottles of decorative glass that      Allocation Period: In British Steel plc.
Results of Countervailing Duty               are sealed with cork or paraffin and       v. United States, 879 F.Supp. 1254,
Administrative Review (64 FR 17618)          bound with raffia, is excluded from the    1289 (CIT 1995) (‘‘British Steel I’’), the
(Preliminary Results), the following         scope of the antidumping and               U.S. Court of International Trade (the
events have occurred. On May 4, 1999,        countervailing duty orders. See            Court) ruled against the allocation
we issued supplementary                      Memorandum from Edward Easton to           methodology for non-recurring
questionnaires to the Government of          Richard Moreland, dated August 25,         subsidies that the Department had
Italy (‘‘GOI’’), the European Union          1997.                                      employed for the past decade, which
                                                (2) On July 30, 1998, the Department    was articulated in the General Issues
(‘‘EU’’), and the Government of the
                                             issued a scope ruling, finding that        Appendix, appended to the Final
Piedmont Region. We received
                                             multipacks consisting of six one-pound     Countervailing Duty Determination;
responses to these questionnaires on
                                             packages of pasta that are shrink-         Certain Steel Products from Austria, 58
May 20, 1999. From May 24 through
                                             wrapped into a single package are          FR 37225 (July 9, 1993) (‘‘GIA’’). In
May 28, 1999, we verified the
                                             within the scope of the antidumping        accordance with the Court’s remand
questionnaire responses of Audisio and
                                             and countervailing duty orders. See        order, the Department determined that
Fabianelli. On May 12, 1999, Riscossa
                                             letter from Susan H. Kuhbach, Acting       the most reasonable method of deriving
submitted its case brief. On June 22,
                                             Deputy Assistant Secretary for Import      the allocation period for non-recurring
1999, petitioners and respondents
                                             Administration, to Barbara P. Sidari,      subsidies is a company-specific average
Delverde/Tamma submitted case briefs.
                                             Vice President, Joseph A. Sidari           useful life (‘‘AUL’’) of non-renewable
Respondents Audisio, Delverde/Tamma,
                                             Company, Inc., dated July 30, 1998.        physical assets. This remand
and Fabianelli and petitioners filed            (3) On October 26, 1998, the            determination was affirmed by the Court
rebuttal briefs on May 29, 1999. The         Department self-initiated a scope          on June 4, 1996. See British Steel plc v.
Department did not conduct a hearing         inquiry to determine whether a package     United States, 929 F.Supp 426, 439 (CIT
in this review because none was              weighing over five pounds as a result of   1996) (‘‘British Steel II’’). Accordingly,
requested.                                   allowable industry tolerances may be       the Department has applied this method
Scope of Review                              within the scope of the antidumping        to those non-recurring subsidies that
                                             and countervailing duty orders. On May     were not countervailed in the original
  The merchandise under review               24, 1999 we issued a final scope ruling    investigation.
consists of certain non-egg dry pasta in     finding that pasta in packages weighing       For non-recurring subsidies received
packages of five pounds (or 2.27             or labeled up to (and including) five      prior to the POR and which have
kilograms) or less, whether or not           pounds four ounces is within the scope     already been countervailed based on an
enriched or fortified or containing milk     of the antidumping and countervailing      allocation period established in the
or other optional ingredients such as        duty orders. See Memorandum from           investigation, it is neither reasonable
chopped vegetables, vegetable purees,        John Brinkmann to Richard Moreland,        nor practicable to reallocate those
milk, gluten, diastases, vitamins,           dated May 24, 1999.                        subsidies over a different period of time.
coloring and flavorings, and up to two                                                  Therefore, for purposes of these final
percent egg white. The pasta covered by      Period of Review                           results, the Department is using the
this scope is typically sold in the retail     The period of review (POR) for which     original allocation period assigned to
market, in fiberboard or cardboard           we are measuring subsidies is from         each non-recurring subsidy
cartons or polyethylene or                   January 1, 1997 through December 31,       countervailed in the original
polypropylene bags, of varying               1997.                                      investigation on the basis of the
dimensions.                                                                             allocation period established in the
  Excluded from the scope of this            Subsidies Valuation Information            original investigation. This conforms
review are refrigerated, frozen, or             Benchmarks for Long-term Loans and      with our approach in Certain Carbon
canned pastas, as well as all forms of       Discount Rates: The companies under        Steel Products from Sweden; Final
egg pasta, with the exception of non-egg     review did not take out any long-term,     Results of Countervailing Duty
dry pasta containing up to two percent       fixed-rate, lira-denominated loans or      Administrative Review, 62 FR 16549
egg white. Also excluded are imports of      other debt obligations which could be      (April 7, 1997).
organic pasta from Italy that are            used as benchmarks in any of the years        For non-recurring subsidies not
accompanied by the appropriate               in which grants were received or           countervailed in the original
certificate issued by the Associazione       government loans under review were         investigation, each company under
Marchigiana Agricoltura Biologica            given. Therefore, we used the Bank of      review submitted an AUL calculation
                      Federal Register / Vol. 64, No. 157 / Monday, August 16, 1999 / Notices                          44491

based on depreciation and asset values     from the interested parties, and our       C. Export Marketing Grants Under Law
of productive assets reported in its       review of the record has not led us to     304/90
financial statements. Each company’s       change this determination.                   Delverde/Tamma received a grant
AUL was derived by dividing the sum                                                   under this program for a market
of average gross book value of             Analysis of Programs
                                                                                      development project in the United
depreciable fixed assets over the past     I. Programs Previously Determined To       States. In the Preliminary Results and
ten years by the average depreciation      Confer Subsidies                           Pasta from Italy, we found that this
charges over this period. We found this                                               program conferred countervailable
calculation to be reasonable and           A. Industrial Development Grants
                                                                                      subsidies on the subject merchandise.
consistent with our company-specific       1. Law 64/86 Benfits                       We did not receive any comments on
AUL objective. We have used these                                                     this program from interested parties and
calculated AULs for the allocation            Delverde/Tamma and Riscossa             our review of the record has not led us
period for non-recurring subsidies not     benefitted from industrial development     to change any findings or calculations
countervailed in the original              grants under Law 64/86 during the POR.     for Delverde/Tamma. Accordingly, the
investigation.                             In the Preliminary Results and in Pasta    net subsidy for this program remain
Changes in Ownership                       from Italy, we found that this program     unchanged from the Preliminary Results
   One of the companies under review,      conferred regionally specific,             and is as follows: Delverde/Tamma—
Delverde, purchased an existing pasta      countervailable subsidies on the subject   0.22 percent.
factory from an unrelated party. The       merchandise. Our review of the record
                                                                                      D. Social Security Reductions and
previous owner of the purchased factory    and our analysis of the comments           Exemptions
had received non-recurring                 submitted by interested parties,
countervailable subsidies prior to the     summarized below in Comment 5, have        1. Sgravi Benefits
transfer of ownership, which took place    not led us to change our findings for         Delverde/Tamma and Riscossa
in 1991.                                   Delverde/Tamma and Riscossa.               received countervailable social security
   We have calculated the amount of the    Accordingly, the net subsidies for this    reductions and exemptions during the
prior subsidies that passed through to     program have not changed from the          POR. In the Preliminary Results and
Delverde with the acquisition of the       Preliminary Results and are as follows:    Pasta from Italy, we found that this
factory, following the spin-off            Delverde/Tamma 2.18 percent ad             program conferred regionally-specific
methodology described in the               valorem and Riscossa 0.74 percent ad       countervailable subsidies on the subject
Restructuring section of the GIA, 58 FR    valorem.                                   merchandise. We did not receive any
at 37265. (For further discussion, see                                                comments on this program from
Comment 4 below.)                          2. Law 488/92 Benefits                     interested parties and our review of the
Affiliated Parties                            Delverde/Tamma also benefitted from     record has not led us to change any
                                           industrial development grants under        findings or calculations. Accordingly,
   In the present review, we have                                                     the net subsidies for this program
examined several affiliated companies      Law 488/92 during the POR. In the
                                                                                      remain unchanged from the Preliminary
(within the meaning of section 771(33)     Preliminary Results, we found that this
                                                                                      Results and are as follows: Delverde/
of the Act) whose relationship may be      program conferred regionally specific,
                                                                                      Tamma—0.31 percent ad valorem and
sufficient to warrant treatment as a       countervailable subsidies on the subject   Riscossa—0.37 percent ad valorem.
single company. In the countervailing      merchandise. We did not receive any
duty questionnaire, consistent with our    comments on this program from              2. Fiscalizzazione Benefits
past practice, the Department defined      interested parties and our review of the      Delverde/Tamma and Riscossa
companies as sufficiently related where    record has not led us to change our        received the higher levels of
one company owns 20 percent or more        findings for Delverde/Tamma.               fiscalizzazione deductions available to
of the other company, or where             Accordingly, the net subsidy for this      companies located in the Mezzogiorno
companies prepare consolidated             program has not changed from the           during the POR. In the Preliminary
financial statements. The Department       Preliminary Results and is as follows:     Results and Pasta from Italy, we found
also stated that companies may be          Delverde/Tamma 0.23 percent ad             that this program conferred regionally-
considered sufficiently related where      valorem.                                   specific countervailable subsidies on the
there are common directors or one                                                     subject merchandise. We did not receive
company performs services for the other    B. Industrial Development Loans Under      any comments on this program from
company. According to the                  Law 64/86                                  interested parties and our review of the
questionnaire, such companies that                                                    record has not led us to change any
                                              Delverde/Tamma received industrial
produce the subject merchandise or that                                               findings or calculations. Accordingly,
                                           development loans with interest
have engaged in certain financial                                                     the net subsidies for this program
transactions with the company subject      contributions from the GOI. In the
                                                                                      remain unchanged from the Preliminary
to review are required to respond.         Preliminary Results and Pasta from
                                                                                      Results and are as follows: Delverde/
   In the Preliminary Results, and         Italy, we found that this program
                                                                                      Tamma—0.07 percent ad valorem and
consistent with our determination in       conferred countervailable subsidies on
                                                                                      Riscossa—0.21 percent ad valorem.
Final Affirmative Countervailing Duty      the subject merchandise. We did not
Determination: Certain Pasta (‘‘Pasta’’)   receive any comments on this program       3. Law 407/90 Benefits
from Italy 61 FR 30288, 30290 (June 14,    from interested parties and our review        Delverde/Tamma received the higher
1996) (Pasta from Italy) we have treated   of the record has not led us to change     level of Law 407 deductions available to
Delverde SrL, Tamma Industrie              our findings or calculations from the      companies located in the Mezzogiorno
Alimentari, SrL, Sangralimenti SrL, and    Preliminary Results. Accordingly, the      during the POR. In the Preliminary
Pietro Rotunno, SrL as a single company    net subsidy for this program remains       Results and Pasta from Italy, we found
with a combined rate. We did not           unchanged and is as follows: Delverde/     that this program conferred regionally
receive any comments on this treatment     Tamma—0.65 percent ad valorem.             specific countervailable subsidies on the
44492                  Federal Register / Vol. 64, No. 157 / Monday, August 16, 1999 / Notices

subject merchandise. We did not receive         During the POI, Audisio received an        level. See Final Affirmative
any comments on this program from            ESF training grant under Objective 4 for      Countervailing Duty Determination:
interested parties and our review of the     the purpose of training its workers to        Stainless Steel Plate in Coils from Italy
record has not led us to change our          increase productivity.                        64 FR 15508, 15517 (March 31, 1999)
findings or calculations. Accordingly,          The Department considers worker            (Plate from Italy).
the net subsidies for this program           training programs to provide a                   While we agree with Audisio that it
remains unchanged from the                   countervailable benefit to a company          may be appropriate for the Department
Preliminary Results and are as follows:      when the company is relieved of an            to revisit its decision in Wire Rod from
Delverde/Tamma—0.00 percent ad               obligation it would have otherwise            Italy on this issue, this is not the case
valorem.                                     incurred. See Pasta From Italy 61 FR at       to do it in. Given the lack of information
                                             30294. Since companies normally incur         on the use of Objective 4 funds by the
4. Law 863 Benefits                          the costs of training to enhance the job-     EU, the GOI or the Piedmont regional
   Delverde/Tamma received the higher        related skills of their own employees,        government, we must base the
level of Law 863 deductions available to     we determine that this ESF grant              specificity determination on facts
companies located in the Mezzogiorno         relieves Audisio of obligations it would      available. In addition, we determine that
during the POR. In the Preliminary           have otherwise incurred. Consequently,        it is appropriate to use adverse facts
Results and Pasta from Italy, we found       the ESF grant is a financial contribution     available because, in our view,
that this program conferred regionally       as described in section 771(5)(D)(i) of       information on the distribution of
specific countervailable subsidies on the    the Act which provides a benefit to the       benefits by industry and by region could
subject merchandise. We did not receive      recipient in the amount of the grant.         have been provided given a reasonable
any comments on this program from               Consistent with prior cases, we have       effort by the GOI and the Piedmont
interested parties and our review of the     examined the specificity of the ESF           regional government to do so. See 19
record has not led us to change our          funding under Objective 4 separately          U.S.C. 1677e(b). The EU and the GOI
findings or calculations. Accordingly,       from any funding under other                  stated that they were unable to provide
the net subsidy for this program remains     objectives. See Final Affirmative             the Department with the industry and
unchanged from the Preliminary Results       Countervailing Duty Determination:            region distribution information for each
and is as follows: Delverde/Tamma 0.17       Steel Wire Rod from Italy 63 FR 40474,        Objective 4 grant in Italy despite
percent ad valorem.                          40487 (July 29, 1998) (Wire Rod from          requests in our original questionnaire
                                             Italy).                                       and a supplementary questionnaire. In
E. Remission of Taxes on Export Credit          In this case, the Objective 4 grant
Insurance Under Article 33 of Law 227/                                                     addition, while the GOI provided a list
                                             received by Audisio emanated from a           of grantees that received funds under
77                                           regional operational program, which           the multiregional operating programs in
  Fabianelli obtained export credit          had been set up pursuant to the Single        non-Objective 1 regions, it did not
insurance under this program for its         Programming Document for Italy,               identify the industry and region of such
exports to the United States and,            negotiated by the EU, the GOI and             grantees. Although this information may
therefore, was exempted from the             Italian regional authorities. The funding     not have been on file with the GOI, it
insurance tax. In the Preliminary Results    for this regional operational program         was, in our view, information that was
and Pasta from Italy, we found that this     came from the EU, the GOI and the             readily accessible to the GOI and could
program conferred countervailable            regional government of Piedmont. For          have been provided to us given a
subsidies on the subject merchandise.        the reasons set forth in Wire Rod from        reasonable effort on the part of the GOI.
We did not receive any comments on           Italy, we have examined each level            Furthermore, the regional government
this program from interested parties and     separately to determine specificity.          similarly refused to cooperate to the best
our review of the record has not led us         In the case of Objective 4 funding, the    of its ability in this investigation despite
to change our findings or calculations.      Department has determined in past             Department requests. In its
Accordingly, the net subsidy for this        cases that the EU portion of the funding      supplementary questionnaire response,
program remains unchanged from the           is de jure specific because its               the Piedmont regional government
Preliminary Results and is as follows:       availability is limited on a regional basis   simply indicated that certain
Fabianelli—0.03 percent ad valorem.          within the EU. In this regard, although       information was on file at its offices and
                                             Objective 4 funding is available              that we could review this information
F. European Social Fund                      throughout the Member States, the EU          during verification. The regional
  The European Social Fund (‘‘ESF’’),        negotiates a separate programming             government made no effort to provide
one of the Structural Funds operated by      document to govern the implementation         the information as requested.
the EU, was established to improve           and administration of the program with           Therefore, as adverse facts available,
workers’ opportunities through training      each Member State. The GOI funding            we continue to find that the aid received
and to raise workers’ standards of living    was also determined to be de jure             by Audisio is specific. Accordingly, we
throughout the European Community by         specific because eligibility is limited to    determine that the ESF grants received
increasing their employability. There        the center and north of Italy (non-           by Audisio are countervailable within
are six different objectives identified by   Objective 1 regions). See Wire Rod from       the meaning of section 771(5) of the Act.
the Structural Funds: Objective 1 covers     Italy 63 FR at 40487. The specificity of         The Department normally considers
projects located in underdeveloped           the regional funding, meanwhile, has          the benefits from worker training
regions, Objective 2 addresses areas in      been a de facto issue.                        programs to be recurring. See GIA 58 FR
industrial decline, Objective 3 relates to      Audisio argues that all of the             at 37255. However, consistent with the
the employment of persons under 25,          Objective 4 agreements negotiated             Department’s determination in Wire Rod
Objective 4 funds training for employees     between the EU and Member States              from Italy 63 FR at 40488, that these
in companies undergoing restructuring,       should be considered together. If this        grants relate to specific, individual
Objective 5 pertains to agricultural         were done, according to Audisio, the          projects, we have treated these grants as
areas, and Objective 6 pertains to           Department by its own admission would         non-recurring grants because each
regions with very low population (i.e.,      arguably be unable to determine that the      required separate government approval.
the far north).                              program is de jure specific at the EU         Because the amount of funding for
                       Federal Register / Vol. 64, No. 157 / Monday, August 16, 1999 / Notices                             44493

Audisio’s project was less than 0.5           We did not receive any comments on         Department given a reasonable effort on
percent of Audisio’s sales in the year of   these programs from the interested           the part of the administering agencies.
receipt, which was the POI, we have         parties, and our review of the record has    For these reasons, we have found that
expensed the grant received in the year     not led us to change our findings from       the three governments did not act to the
of receipt. To calculate the benefit from   the Preliminary Results.                     best of their ability to comply with our
Audisio’s ESF grant, we divided the                                                      information requests and, on the basis of
                                            Analysis of Comments                         adverse facts available, have determined
grant amount by total sales in the POR
because the grant benefitted sales of all   Comment 1                                    that the ESF Objective 4 aid is de facto
of the company’s products. On this                                                       specific.
                                               Petitioners claim that ESF aid
basis, we calculated a benefit of 0.04      provided to Audisio is de jure specific      Comment 2
percent ad valorem.                         within the meaning of section                   Petitioners claim that the ‘‘separately
G. Export Restitution Payments              771(5A)(D)(iv) because it is limited to      incorporated’’ test used by the
                                            enterprises in certain regions. In Wire      Department in Pasta from Italy to
  Delverde/Tamma, Fabianelli, Audisio
                                            Rod from Italy at 40474 the Department       determine whether subsidies to the
and Riscossa received export restitution
                                            determined that ESF aid was de jure          mills should be attributed to the
payments during the POR on shipments
                                            specific because the European Union          production of pasta elevates form over
of subject merchandise to the United
                                            (‘‘EU’’) negotiates a separate program       substance. In Pasta from Italy, the
States. In the Preliminary Results and
                                            document with each Member State and          Department attributed subsidies
Pasta from Italy, we found that this
                                            because GOI funding of Objective 4           received by semolina mills not only to
program conferred countervailable
                                            projects is available only in central and    semolina but also to pasta in those
subsidies on the subject merchandise.
                                            northern Italy.                              instances where the mills and the pasta
We did not receive any comments on
                                               Further, petitioners claim that           factories were owned and operated by a
this program from interested parties and
                                            Objective 4 aid is de facto specific         single corporation. Where the mills and
our review of the record has not led us
                                            because the GOI and the EU have failed       pasta factories were owned by affiliated
to change any findings or calculations.
                                            to provide information on the                but separately incorporated companies,
Accordingly, the net subsidies for this
                                            distribution of Objective 4 benefits by      however, the Department determined
program remain unchanged from the
                                            industry and by region.                      that it would not consider subsidies to
Preliminary Results and are as follows:
                                               Audisio claims that the Department        mills absent the filing of an upstream
Delverde/Tamma 0.22 percent ad
                                            indicated in Plate from Italy at 15517       subsidy allegation.
valorem, Audisio—1.03 percent ad
                                            that it is appropriate to consider all the      Petitioners further claim that the
valorem, Riscossa—0.81 percent ad
                                            Member States of the European Union          recently published substantive
valorem and Fabianelli—0.42 percent
                                            together and that, therefore, the            countervailing duty regulations reflect a
ad valorem.
                                            Department is ‘‘unable to determine that     change in the Department’s policy in
II. Programs Preliminarily Determined       the program is de jure specific.’’           this regard. Petitioners quote from the
To Be Not Used                              Additionally, Audisio, the EU and the        preamble to section 351.525(b) of the
   In the Preliminary Results, we           GOI have provided sufficient evidence        new regulations which states that
determined that the producers and/or        for the Department to determine that the     ‘‘where the input and downstream
exporters of the subject merchandise did    ESF funding received by Audisio during       production takes place in separately
not apply for or receive benefits under     this review was not de facto specific.       incorporated companies with cross-
the following programs during the POR:                                                   ownership * * * and the production of
                                            DOC Position
                                                                                         the input product is primarily dedicated
A. Local Income Tax (‘‘ILOR’’)                 We agree with Audisio that it may be      to the production of the downstream
     Exemptions                             appropriate for the Department to revisit
B. VAT Reductions                                                                        product, paragraph (b)(6)(iv) requires
                                            its previous decision in Wire Rod from       the Department to attribute the
C. Lump-Sum Interest Payment Under          Italy regarding the de jure specificity of
     the Sabatini Law for Companies in                                                   subsidies received by the input
                                            assistance distributed under the ESF         producer to the combined sales of the
     Southern Italy                         Objective 4 Single Programming
D. Export Credits Under Law 227/77                                                       input and downstream products
                                            Document in Italy, as explained in Plate     (excluding the sales between the two
E. Capital Grants Under Law 675/77
F. Retraining Grants Under Law 675/77       from Italy. However the EU, the GOI and      corporations).’’ (See Countervailing
G. Interest Contributions on Bank Loans     the Piedmont Regional Government             Duties: Final Rule, 63 FR 65,401.)
     Under Law 675/77                       failed to provide a breakdown of the            Petitioners claim that Tamma/
H. Interest Grants Financed by IRI          number of companies by industry and          Delverde meet the cross-ownership
     Bonds                                  by region, which received ESF Objective      provision and that subsidies to Tamma’s
I. Preferential Financing for Export        4 benefits in 1996 and each of the           mill should be attributed to both Tamma
     Promotion Under Law 394/81             previous three years. In addition, they      and Delverde.
J. Corporate Income Tax (‘‘IRPEG’’)         failed to provide information on the            Delverde claims that the Department
     Exemptions                             amount of benefits received by industry      has consistently included Law 64 grants
K. Urban Redevelopment Under Law            and by region in 1996 and each of the        benefitting Tamma’s semolina mill in its
     181                                    previous three years. The three              calculation of the Delverde/Tamma
L. Debt Consolidation Law 341/95            governments stated that this information     subsidy rate. The Department has
M. Grant Received Pursuant to the           was not maintained by the                    ‘‘collapsed’’ the two companies since
     Community Initiative Concerning        administering agencies because region        the original investigation. See Pasta
     the Preparation of Enterprises for     of the country and type of industry were     from Italy. Consequently, the
     the Single Market (‘‘PRISMA’’)         not taken into consideration in              Department has in each of the previous
N. European Agricultural Guidance and       awarding ESF Objective 4 grants. As          proceedings attributed to Delverde
     Guarantee Fund (‘‘EAGGF’’)             explained above, however, in our view        subsidies that benefitted Tamma’s
O. European Regional Development            the information was readily accessible       semolina mill. The Department has
     Fund (‘‘ERDF’’)                        and could have been provided to the          done so on the basis of the fact that
44494                  Federal Register / Vol. 64, No. 157 / Monday, August 16, 1999 / Notices

Tamma’s semolina mill is not separately      DOC Position                                 through varies as determined by the
incorporated. It is simply an operating         In the original investigation, Sabatini   gamma calculation depending on the
unit of the Tamma corporation.               Law benefits were found to be widely         facts in each case.
                                                                                             In Delverde’s view careful analysis of
DOC Position                                 distributed and to benefit many
                                                                                          the facts in this case will show that the
   We agree with Delverde. In Pasta from     companies representing a broad cross
                                                                                          preliminary results in this
Italy, we did not countervail subsidies      section of industries throughout Italy. In
                                                                                          administrative review fail to meet the
to affiliated mills that were separately     the original investigation, we found that
                                                                                          post-URAA requirement that the
incorporated, indicating that we would       during the years 1988 through 1993,
                                                                                          Department find both a financial
not consider such subsidies absent an        assistance under the program was
                                                                                          contribution to and a benefit conferred
upstream allegation. However, in             distributed over 19 sectors and that
                                                                                          on current production. Delverde
Delverde’s case, the Department              benefits to the food producing industry
                                                                                          purchased MI.BI in an arm’s length
collapsed Delverde and Tamma treating        amounted to only 4.9 percent of all          transaction at a purchase price
the two as one company because of            benefits granted, which did not              established by an independent, court-
stock ownership between the companies        represent a disproportionately large         ordered appraiser. Consequently, prior
and common board members. Moreover,          share of benefits. Given this compelling     subsidies received by MI.BA did not
because Tamma’s mill was not                 evidence of non-specificity of benefits to   benefit Delverde; they simply increased
separately incorporated from Tamma’s         pasta production, the Department sees        the profit realized by MI.BA upon the
pasta production operation, subsidies to     no reason to re-open the question of         sale of its pasta factory.
Tamma’s mill were included as                specificity absent information that             Petitioners claim that the change in
subsidies to Tamma’s pasta. As a result,     changes have occurred. The Department        ownership provision contained in
subsidies to Tamma’s mill were viewed        has consistently followed this practice      section 251(a) of the URAA, amending
as benefitting both Tamma and Delverde       regarding programs previously found          section 771(5) of the Tariff Act of 1930,
and were allocated over the combined         not countervailable. See, e.g.,              reiterated and formally codified the
sales of both companies excluding            Preliminary Countervailing Duty              Department’s practice, affirmed by the
intercompany sales. In both the              Determinations and Alignment of Final        CAFC on no less than five occasions,
preliminary and final results of this        Countervailing Duty Determinations           that an arm’s length sale of a firm or
review, we have done the same.               with Final Antidumping Duty                  asset does not automatically extinguish
                                             Determinations: Certain Steel Products       previously bestowed countervailable
Comment 3                                    from Belgium, 57 FR 57750, 57758             subsidies. (See, e.g, Saarstahl AG v.
   Petitioners claim that there is no        (December 7, 1992) and Preliminary           United States, 78 F. 3d 1539, 1544 (Fed.
evidence on the record of this review        Affirmative Countervailing Duty              Cir. 1996)).
regarding the countervailability or non-     Determination: Extruded Rubber Thread           In addition, according to petitioners,
countervailability of Sabatini benefits to   from Malaysia, 56 FR 67276, 67280            the URAA statutory definitions of
companies in northern Italy. In Pasta        (December 30, 1991).                         ‘‘benefit’’ and ‘‘financial contribution’’
from Italy, the Department found that                                                     do not require any different agency
Sabatini benefits to companies in the        Comment 4
                                                                                          scrutiny or lead to any different
North were widely distributed by                Delverde maintains that the change of     conclusions in examining the
industry and by region and, therefore,       ownership provision contained in the         countervailability of subsidies following
were not specific. Petitioners argue,        Uruguay Round Agreements Act                 a change of ownership than was true
however, that the finding in the original    requires the Department to analyze the       under pre-URAA law. This is clear from
investigation that Sabatini benefits in      facts in each change of ownership            the SAA’s plain statement that this
northern Italy were not specific is          situation in order to determine whether      benefit standard merely reflects the
insufficient to support such a finding in    and to what extent subsidies received by     longstanding Commerce standard and
later periods. In addition, petitioners      the original owner are passed through to     does not inject a new requirement into
claim that it is unfair for the Department   the new owner. The change of                 the law. (See SAA at 925–928.)
to require them to provide information       ownership provision recognizes that an       Petitioners claim that Delverde is
indicating that Sabatini benefits in the     arm’s length sale of an enterprise or an     seeking to superimpose on the statute
North may no longer be provided on a         asset does not require a determination       the requirement that there be a
non-specific basis before the                by the Department that a past                beneficial competitive effect on the
Department will again examine the            countervailable subsidy received by the      acquiring company’s operations when
question of specificity. Petitioners         enterprise no longer continues to be         the change in ownership occurred as a
maintain that the GOI is in the best         countervailable. However, the change in      result of the original subsidy. This
position to provide the relevant             ownership provision plainly does not         ‘‘effect’’ requirement, however, has been
information and because it has not done      preclude such a conclusion. For this         rejected by the Court in pre-URAA cases
so, the Department should countervail        reason, the Department must carefully        and the new statute expressly states that
Sabatini benefits received by companies      analyze the facts of each change of          no beneficial ‘‘effect’’ of a subsidy is
in the North.                                ownership situation.                         required. (See 19 U.S.C. 1677(5)(C)).
   Fabianelli claims that it does not           According to Delverde, the
qualify for the special concessionary        Department’s ‘‘privatization/                DOC Position
rate available to companies in southern      restructuring’’ methodology as                  We agree with petitioners. The
Italy because its only production            described in the GIA does not provide        arguments which Delverde raises in this
facilities are located in Castiglion         for an analysis of the facts of each         comment are addressed fully in the
Fiorentino, which is not in the southern     change of ownership separately and on        remand determination which the
Italy. Further, Fabianelli claims that the   its own merits. Rather, this methodology     Department filed with the CIT on April
Department did not refer to the Sabatini     presumes as a matter of law that             2, 1998 in Delverde, Srl. v. United
Law in its Preliminary Results because       subsidies travel from the seller to the      States, Consol. Ct. No. 96–08–01997.
benefits to companies in the North are       buyer in all circumstances. Only the         The CIT later sustained that remand
no longer an issue.                          amount of the subsidies that passes          determination and upheld the
                       Federal Register / Vol. 64, No. 157 / Monday, August 16, 1999 / Notices                                     44495

Department’s methodology in Delverde,        Department practice in the last three       longer, company-specific AUL of 15
Srl. v. United States, 24 F. Supp. 2d 314    investigations of Italian products. See     years to allocate non-recurring subsidies
(CIT 1998).                                  Wire Rod from Italy 63 FR at 40476–         received well before the current period
                                             40477; Plate from Italy 64 FR at 15510–     of review. They claim that the 12-year
Comment 5
                                             15511; and Final Affirmative                period used in the original investigation
   Riscossa claims that in calculating the   Countervailing Duty Determination:          should apply to these earlier subsidies.
benefit from two Law 64 grants received      Stainless Steel Sheet and Strip from
by the company, the Department               Italy 64 FR 30624, 30626–30627 (June 8,     DOC Response
incorrectly countervailed the full           1999).                                         We have continued to use 12 years as
amount of the benefit received under                                                     the allocation period for those non-
Law 64 including both the grant amount       DOC Position                                recurring subsidies countervailed in the
and the reduction in interest according         In the Preliminary Results, in the       original investigation. As we explained
to the terms of the lease. Riscossa claims   section on Benchmarks for Long-term         in the first Pasta from Italy review, it is
that the benefit from the interest rate      Loans and Discount Rates, we explained      neither reasonable nor practicable to
reduction has expired because the leases     that we used the average interest rate on   reallocate these subsidies over a
in question are no longer outstanding.       medium-and long-term loans as               different time period. 63 FR 43905,
   Petitioners claim that in both the        reported by the Bank of Italy based on      43906 (August 17, 1998) For all other
original investigation and the               a survey of 114 banks for our benchmark     non-recurring subsidies, however,
Preliminary Results, the Department          interest rate. This explanation was not     whether received during the current
correctly treated the Law 64 lump-sum        correct. In our calculations, we actually   POR or prior to the current POR, we
contributions to the leasing companies       used the ABI rate plus a spread of 2.275    have used a company-specific AUL for
as grants to Riscossa. In its November 9,    percent as the benchmark interest rate      allocation purposes.
1998 questionnaire response, Riscossa        following the practice in the three            As indicated in the section entitled
describes the contributions as grants to     earlier cases cited above by petitioners.   ‘‘Allocation Period,’’ the Department is
the leasing companies, which had the         In these final results, we have also used   applying the Court’s decision in British
effect of lowering Riscossa’s lease          this benchmark in our subsidy               Steel II and calculating company-
payments. Riscossa had no repayment          calculations and have correctly             specific allocation periods based on the
obligation as a result of these grants as    described it in the Subsidies Valuation     average useful life of each respondent’s
would be the case for a Law 64 loan.         section of this notice. We also used this   physical assets. Thus, for subsidies not
Therefore, the Department should not         benchmark in the first administrative       previously allocated over a particular
treat these grants as reduced rate loans.    review of the Pasta from Italy order        allocation period, we are using
                                             because in Wire Rod from Italy, based       company-specific AULs. (See Final
DOC Position
                                             on information obtained during              Affirmative Countervailing Duty
  We agree with petitioners. The GOI         verification, the Department determined     Determination: Stainless Steel Sheet
made lump-sum payments to leasing            that the ABI rate is the most suitable      and Strip in Coils from France 64 FR
companies on Riscossa’s behalf. We           benchmark for long-term financing to        30774, 30778 (June 8, 1999).)
view these payments as grants. Since         Italian companies.
1984, the Department has allocated non-         We note that during verification in      Final Results of Review
recurring grants such as these over a        this review, we obtained information          In accordance with 19 CFR
period corresponding to the average          from a commercial bank confirming the       351.221(b)(4)(i), we calculated an
useful life of the recipient firm’s or the   fact that the ABI rate was appropriate      individual subsidy rate for each
industry’s fixed assets. (See Subsidies      for establishing a benchmark interest       producer/exporter subject to this
Appendix appended to Final                   rate. (See June 16, 1999 Memorandum to      administrative review. For the period
Affirmative Countervailing Duty              the File: Meeting with Commercial Bank      January 1, 1997 through December 31,
Determination and Countervailing Duty        Officers.) In addition, information from    1997, we determine the net subsidy
Order: Cold-Rolled Carbon Steel Flat-        the bank officers regarding the typical     rates for producers/exporters under
Rolled Products from Argentina 49 FR         spread plus charges which are added to      review to be those specified in the chart
18006, 18018). We do not, as Riscossa        the ABI rate served to confirm the          shown below.
suggests, look to how the recipient uses     spread which was added in calculating
the funds received from the government.      a benchmark in the earlier                               AD VALOREM RATES
Therefore, the fact that Riscossa used its   investigations.
grants to reduce its payments under two         The ABI rate for 1997, as reported in                                             01/01/97
lease agreements, which have since           our discussion with officers of the                 Producer/exporter                through
expired, is not relevant to our              commercial bank, was lower than that                                                 12/31/97
calculations. Therefore, as in the           reported in the Bank of Italy’s February    Delverde/Tamma ......................         4.05
original investigation, the Department       1998 Economic Bulletin. The ABI rate in     Audisio Industrie Alimentari di
has allocated the grants over 12 years.      the Economic Bulletin, however,               Capitanata S.p.A ...................        1.03
                                             corresponded closely with the 1997          Pastificio Fabianelli S.p.A .........         0.49
Comment 6
                                             lending rates published for Italy in the    Pastificio Riscossa F.lli
   Petitioners claim the Department          International Monetary Fund’s June            Mastromauro SrL ..................          2.13
should use the ABI rate as a benchmark       1999 International Financial Statistics.
rate for long-term loans. They claim that    Therefore, we used the ABI rate as            We will instruct the U.S. Customs
in the Preliminary Results, the              published in the Economic Bulletin plus     Service (Customs) to assess
Department used an average interest rate     a spread as the appropriate benchmark       countervailing duties as indicated
reported by the Bank of Italy based on       interest rate for this review.              above. The Department will also
a survey of 114 Italian banks. In                                                        instruct Customs to collect cash
addition, petitioners claim that a spread    Comment 7                                   deposits of estimated countervailing
of 2.275 percent should be added to the        Petitioners claim that in its subsidy     duties in the percentage detailed above
ABI rate because this has been               calculation, the Department has used a      of the f.o.b. invoice prices on all
44496                   Federal Register / Vol. 64, No. 157 / Monday, August 16, 1999 / Notices

shipments of the subject merchandise            Dated: August 9, 1999.                     Ticaret A.S., and Yucelboru Ihracat
from the producers/exporters under            Robert S. LaRussa,                           Ithalat ve Pazarlama A.S. (Yucel Boru
review, entered, or withdrawn from            Assistant Secretary for Import               Group), and the review on line pipe
warehouse, for consumption on or after        Administration.                              covers Mannesmann—Sumerbank Boru
the date of publication of the final          [FR Doc. 99–21201 Filed 8–13–99; 8:45 am]    Endustrisi T.A.S. (Mannesmann). These
results of this administrative review.        BILLING CODE 3510–DS–P                       reviews also cover 21 programs during
   Pursuant to 19 CFR 351.212(c), for all                                                  the period January 1, 1997 through
companies for which a review was not                                                       December 31, 1997.
requested, duties must be assessed at         DEPARTMENT OF COMMERCE                          Since the publication of the
the cash deposit rate in effect at the time                                                preliminary results on April 7, 1999 (64
of entry of the subject merchandise and       International Trade Administration           FR 16924), the following events have
cash deposits must continue to be             [C–489–502]                                  occurred. We invited interested parties
collected at the previously ordered rate.                                                  to comment on the preliminary results.
Therefore, the cash deposit rates for all     Certain Welded Carbon Steel Pipes            On May 7, 1999, case briefs were
companies except those covered by this        and Tubes and Welded Carbon Steel            submitted by the Yucel Boru Group,
review will be unchanged by the results       Line Pipe from Turkey; Final Results of      which exported pipe and tube, and
of this review.                               Countervailing Duty Administrative           Mannesmann, which exported line pipe,
   We will instruct Customs to continue       Reviews                                      to the United States during the review
to collect cash deposits for non-                                                          period (respondents). On May 12, 1999,
reviewed companies, except Barilla G. e       AGENCY:  Import Administration,              a rebuttal brief was submitted by
R. F.lli S.p.A. (‘‘Barilla’’) and Gruppo      International Trade Administration,          Maverick Tube Corporation and
Agricoltura Sana S.r.L. (‘‘Gruppo’’)          Department of Commerce.                      Wheatland Tube Company (petitioners).
(which were excluded from the order
                                              SUMMARY:   On April 7, 1999, the             Applicable Statute and Regulations
during the investigation), at the most
recent rate applicable to the company.        Department of Commerce (the
                                                                                              Unless otherwise indicated, all
Accordingly, the cash deposit rates that      Department) published in the Federal
                                                                                           citations to the statute are references to
will be applied to non-reviewed               Register its preliminary results of
                                                                                           the provisions of the Tariff Act of 1930,
companies covered by this order are           administrative reviews of the
                                                                                           as amended by the Uruguay Round
those established in the Notice of            countervailing duty orders on certain
                                                                                           Agreements Act (URAA) effective
Countervailing Duty Order and                 welded carbon steel pipes and tubes
                                                                                           January 1, 1995 (the Act). The
Amended Final Affirmative                     (pipe and tube) and welded carbon steel
                                                                                           Department is conducting these
Countervailing Duty Determination:            line pipe (line pipe) from Turkey for the
                                                                                           administrative reviews in accordance
Certain Pasta from Italy (61 FR 38544,        period January 1, 1997 through
                                                                                           with section 751(a) of the Act. Because
July 24, 1996), or those established in       December 31, 1997 (64 FR 16924). The
                                                                                           these administrative reviews were
Certain Pasta from Italy: Final Results of    Department has now completed these
                                                                                           initiated in April 1998, 19 CFR part 355
Countervailing Duty Administrative            administrative reviews in accordance
                                                                                           is applicable.
Review (63 FR 43905, August 17, 1998),        with section 751(a) of the Tariff Act of
whichever notice provides the most            1930, as amended. For information on         Scope of the Reviews
recently published countervailing duty        the net subsidy for each reviewed
                                                                                              Imports covered by these reviews are
rates for companies not reviewed in this      company, and for all non-reviewed
                                                                                           shipments from Turkey of two classes or
administrative review. These rates shall      companies, please see the Final Results
                                                                                           kinds of merchandise: (1) Certain
apply to all non-reviewed companies           of Review section of this notice. We will
                                                                                           welded carbon steel pipe and tube,
until a review of a company assigned          instruct the U.S. Customs Service to
                                                                                           having an outside diameter of 0.375
these rates is completed. In addition, for    assess countervailing duties as detailed
                                                                                           inch or more, but not more than 16
the period January 1, 1997 through            in the Final Results of Review section of
                                                                                           inches, of any wall thickness. These
December 31, 1997, the assessment rates       this notice.
                                                                                           products, commonly referred to in the
applicable to all non-reviewed                EFFECTIVE DATE: August 16, 1999.             industry as standard pipe and tube or
companies covered by these orders are         FOR FURTHER INFORMATION CONTACT:             structural tubing, are produced to
the cash deposit rates in effect at the       Stephanie Moore or Eric Greynolds,           various American Society for Testing
time of entry, except for Barilla and         Office of CVD/AD Enforcement VI,             and Materials (ASTM) specifications,
Gruppo (which were excluded from the          Import Administration, International         most notably A–53, A–120, A–135, A–
order during the original investigation).     Trade Administration, U.S. Department        500, or A–501; and (2) certain welded
   This notice serves as a reminder to        of Commerce, 14th Street and                 carbon steel line pipe with an outside
parties subject to administrative             Constitution Avenue, N.W.,                   diameter of 0.375 inch or more, but not
protective order (‘‘APO’’) of their           Washington, D.C. 20230; telephone:           more than 16 inches, and with a wall
responsibility concerning the                 (202) 482–3692 or (202) 482–6071,            thickness of not less than .065 inch.
disposition of proprietary information        respectively.                                These products are produced to various
disclosed under APO in accordance             SUPPLEMENTARY INFORMATION:                   American Petroleum Institute (API)
with 19 CFR 351.301. Timely written                                                        specifications for line pipe, most
notification of return or destruction of      Background                                   notably API–L or API–LX. These
APO materials or conversion to judicial         Pursuant to 19 CFR 351.213(b), these       products are classifiable under the
protective order is hereby requested.         reviews cover only those producers or        Harmonized Tariff Schedule of the
Failure to comply with the regulations        exporters of the subject merchandise for     United States (HTSUS) as item numbers
and the terms of an APO is a                  which a review was specifically              7306.30.10 and 7306.30.50. The HTSUS
sanctionable violation.                       requested. Accordingly, the review on        item numbers are provided for
   This administrative review and notice      pipe and tube covers Yucel Boru ve           convenience and Customs purposes.
are in accordance with section 751(a)(1)      Profil Endustrisi A.S., and its affiliated   The written descriptions remain
of the Act (19 U.S.C. 1675(a)(1)).            companies, Cayirova Boru Sanayi ve           dispositive.
                                Federal Register / Vol. 64, No. 157 / Monday, August 16, 1999 / Notices                                          44497

Analysis of Programs                                      Manufacturer/exporter of pipe               Rate   L. Incentive Premium on Domestically
                                                                   and tube                         (percent)  Obtained Goods
   Based upon the responses to our                                                                           M. Deduction from Taxable Income for
questionnaires and written comments                     Yucel Boru Group .......................        0.00   Export Revenues
from the interested parties, we                                                                              N. Regional Subsidies
determine the following:                                  Manufacturer/exporter of line             Rate       1. Additional Refunds of VAT (VAT +
I. Programs Conferring Subsidies                                      pipe                        (percent)       10%)
                                                                                                               2. Postponement of VAT on Imported
A. Programs Previously Determined To                    Mannesmann ..............................       0.58      Goods
Confer Subsidies                                                                                               3. Land Allocation (GIP)
                                                        3. Freight Program                                     4. Taxes, Fees (Duties), Charge
1. Pre-Shipment Export Credit
                                                           In the preliminary results we found                    Exemption (GIP)
  In the preliminary results we found                   that this program conferred                            We did not receive any comments on
that this program conferred                             countervailable subsidies on the subject these programs from the interested
countervailable subsidies on the subject                merchandise. Our review of the record                parties, and our review of the record has
merchandise. Our review of the record                   and our analysis of the comments                     not led us to change our findings from
and our analysis of the comments                        submitted by the interested parties,                 the preliminary results.
submitted by the interested parties,                    summarized below, has not led us to
                                                                                                             IV. Program Found To Be Terminated
summarized below, has not led us to                     change our findings from the
change our findings from the                            preliminary results. Accordingly, the                  In the preliminary results we found
preliminary results. Accordingly, the                   net subsidies for this program remain                the following program to be terminated
net subsidies for this program remain                   unchanged from the preliminary results and that no residual benefits were being
unchanged from the preliminary results                  and are as follows:                                  provided:
and are as follows:                                                                                             Export Incentive Certificate Customs
                                                          Manufacturer/exporter of pipe               Rate
                                                                   and tube                         (percent)   Duty & Other Tax Exemptions
  Manufacturer/exporter of pipe               Rate
           and tube                         (percent)                                                             We did not receive any comments on
                                                        Yucel Boru Group .......................         0.00   this program from the interested parties,
Yucel Boru Group .......................         0.84                                                           and our review of the record has not led
                                                          Manufacturer/exporter of line               Rate      us to change our findings from the
                                                                     pipe                           (percent)   preliminary results.
  Manufacturer/exporter of line               Rate
             pipe                           (percent)   Mannesmann ..............................        3.43   Analysis of Comments
Mannesmann ..............................        0.19                                                           Comment 1: Appropriate Benchmark
                                                        II. Program Found Not To Confer                         Interest Rates
                                                        Subsidies Special Importance Sector
2. Foreign Exchange Loan Assistance                     Under Investment Allowances                               The Yucel Boru Group argues that the
                                                                                                                Department’s use of monthly-average
  In the preliminary results we found                      In the preliminary results we found                  interest rates is inconsistent with the
that this program conferred                             this program did not confer subsidies                   Department’s policies and practices in
countervailable subsidies on the subject                during the POR. We did not receive any                  antidumping cases. They argue that it is
merchandise. We did not receive any                     comments on this program from the                       the Department’s policy, in high
comments on this program from the                       interested parties, and our review of the               inflation economies, to require
interested parties. In the preliminary                  record has not led us to change any                     contemporaneity for measurements that
results, we stated that Mannesmann                      findings from the preliminary results.                  are affected by inflation. In support of
received foreign currency loans that                                                                            their argument, they cite the Final
                                                        III. Programs Found To Be Not Used
were used for shipments to the United                                                                           Determination of Sales at Less than Fair
States and Germany. For the                                In the preliminary results we found
                                                                                                                Value: Certain Pasta from Turkey, 61 FR
denominator, we used the indexed                        that the producers and/or exporters of
                                                                                                                30309, (June 14, 1996), in which the
monthly total exports of the subject                    the subject merchandise did not apply
                                                                                                                Department used daily exchange rates
merchandise to the United States, and                   for or receive benefits under the
                                                                                                                for currency conversion. Therefore,
the company’s total export sales                        following programs:
                                                                                                                according to the Yucel Boru Group,
(unindexed) of the subject merchandise                  A. Resource Utilization Support Fund                    because currency exchange rates and
to Germany. We subsequently requested                   B. State Aid for Exports Program
                                                        C. Advance Refunds of Tax Savings                       interest rates reflect the degree of
the monthly total export sales of the                                                                           inflation in the economy, they both
subject merchandise to Germany so that                  D. Export Credit Through the Foreign
                                                           Trade Corporate Companies                            should be treated the same way under
we could index for inflation, as we had                                                                         the principle of contemporaneity in
indexed sales of subject merchandise to                    Rediscount Credit Facility (Eximbank)
                                                        E. Past Performance Related Foreign                     antidumping cases, as well as
the United States. We have now indexed                                                                          countervailing duty cases, as provided
                                                           Currency Export Loans (Eximbank)
the monthly total exports of the subject                F. Export Credit Insurance (Eximbank)                   for under 19 CFR 351.415 (Currency
merchandise to the United States and to                 G. Subsidized Turkish Lira Credit                       Conversion). Thus, they argue that the
Germany to account for Turkey’s high                       Facilities                                           Department should use, as a benchmark,
rate of inflation. See Preliminary                      H. Subsidized Credit for Proportion of                  the weekly short-term interest rates
Results, 64 FR 16924, 16926, where we                      Fixed Expenditures                                   rather than the monthly average short-
found that Turkey experienced an                        I. Fund Based Credit                                    term interest rates based on a simple
inflation rate of 81 percent during the                 J. Investment Allowances (in excess of                  average of the weekly figures
POR. Accordingly, the net subsidies for                    30% minimum)                                         corresponding for that month.
this program changed from the                           K. Resource Utilization Support                           The Yucel Boru Group also argues
preliminary results and are as follows:                    Premium                                              that the Department selected the
44498                  Federal Register / Vol. 64, No. 157 / Monday, August 16, 1999 / Notices

incorrect short-term weekly rates from      interest rates. See Certain Welded           such provision with respect to fees
The Economist. Therefore, they argue        Carbon Steel Pipes and Tubes and             incurred on direct loans. Thus, they
that if the Department elects to retain     Welded Carbon Steel Line Pipe from           argue that because the statute and the
the monthly average methodology, the        Turkey; Preliminary Results of               WTO do not explicitly include a
Department should select the correct        Countervailing Duty Administrative           provision for adjusting for fees in the
short-term weekly rates from The            Reviews, 62 FR 16782,16783 (April 8,         case of loans, the Department should
Economist.                                  1997) and Final Results, 62 FR 43984         not include fees in benchmark interest
   Department’s Position: We disagree       (August 18, 1997) (1995 Pipe and Tubes       rate used to calculate the benefit under
with the Yucel Boru Group’s contention      and Line Pipe), and Certain Welded           the pre-shipment export credit program.
that the Department should use the          Carbon Steel Pipes and Tubes and                Petitioners counter that the Yucel
weekly short-term interest rate rather      Welded Carbon Steel Line Pipe from           Boru Group’s contention is not tenable.
than the average monthly rate in            Turkey; Preliminary Results and Partial      Rather, according to petitioners, the
calculating the benefit from the pre-       Recission of Countervailing Duty             waived fees are export promotion
shipment export credit program. First,      Administrative Reviews, 62 FR 64808,         subsidies and are prohibited. Petitioners
the Group is incorrect in equating          64809 (December 9, 1997) and Final           also counter that the adjustment for loan
antidumping duty practice and the           Results, 63 FR 18885 (April 16, 19998)       guarantee fees is necessary to prevent a
currency conversion regulation              (1996 Pipes and Tubes and Line Pipe).        finding of a subsidy where the net effect
(351.415) (only applicable in               Moreover, we note that Mannesmann,           of the guarantee transaction provides no
antidumping duty cases) with                the other producer of subject                interest benefit to the loan recipient.
countervailing duty practice. In            merchandise in the instant reviews,          However, the waiver of fees, which
antidumping duty cases because we are       supplied the Department with the             would otherwise be applicable to a loan,
comparing costs and prices in different     monthly average cost of its company-         but for the fact the loan finances export
markets, contemporaneous comparisons        specific borrowing rates during the POR.     sales, is an export subsidy in its own
                                              We also disagree with the Yucel Boru       right. Therefore, to exclude the fee from
are necessary to ensure that the
                                            Group’s contention that the Department       the benchmark interest rates would
comparisons are appropriate and not
                                            used the incorrect benchmark interest        ignore the subsidy benefit.
unduly influenced by exchange rate
                                            rate. The Group’s contention appears to         Department’s Position: We disagree
fluctuations. With regard to prices, our
                                            stem from their argument that interest       with the Yucel Boru Group’s contention
regulation on currency conversion           rate benchmarks should be
effectuates this purpose. See 19 CFR                                                     that the Department’s inclusion of loan
                                            contemporaneous with when the                fees in the benchmark interest rate used
351.415. In countervailing duty cases       interest payments are made. As
we are not comparing prices or costs,                                                    to calculate the benefit under the pre-
                                            discussed above, in selecting an             shipment export credit program is
rather, in choosing a benchmark interest    appropriate benchmark, we are not
rate, we are determining whether a                                                       contrary to law. Although there is no
                                            comparing prices or costs. Instead, we       explicit reference to adjusting for fees
benefit exists to the extent that the       are determining what the interest rate
amount a firm pays on a government-                                                      on direct loans in either Articles 14(b)
                                            would have been had the company              and 14(c) of the SCM, and sections
provided loan is less than the amount       obtained a commercial loan comparable
the firm would pay on a comparable                                                       771(5)(E)(ii) and 771(5)(E)(iii) of the Act,
                                            to the government-provided loan.             the Department has interpreted language
commercial loan obtained during the         Therefore, the Department bases its
year in which the government-provided                                                    contained in both provisions as
                                            benchmark interest rate on the date the
loan was given, in accordance with                                                       permitting the Department to add
                                            government-provided loan is taken out
section 771(5)(E(ii) of the Act. If the                                                  exempted fees to benchmark interest
                                            because the interest rate on a
government-provided loan is a short-                                                     rates used to calculate the benefit in
                                            comparable commercial loan would
term loan, the Department calculates a                                                   appropriate circumstances. Section
                                            have been established at the time the
single, annual average benchmark                                                         771(5)(E)(ii) of the Act defines the
                                            loan is given, and not on the date the
interest rate, unless short-term interest                                                benefit in the case of loans as,
                                            interest payment is made, as argued by
rates in the country in question            the Yucel Boru Group. See 1996 Pipes           ‘‘* * * [the] difference between the
fluctuated significantly during the year    and Tubes and Line Pipe, 62 FR 64308,        amount the recipient of the loan pays on the
in question. Because we determine that      64809.                                       loan and the amount the recipient would pay
Turkey continued to experience a high                                                    on a comparable commercial loan that the
rate of inflation, based on a Wholesale     Comment 2: Countervailability of             recipient could actually obtain on the
Price Index rate of approximately 81        Exempted Loan Fees                           market.’’
percent during the POR, we find that          The Yucel Boru Group argues that the          The Department believes that this
using an average monthly rate as the        Department’s inclusion of loan fees in       interpretation is in compliance with the
short-term benchmark interest rate          the benchmark interest rate used to          SCM and the Act because the inclusion
sufficiently accounts for such inflation.   calculate the benefit of the pre-shipment    of loan fees in the benchmark interest
It has been the Department’s practice in    loan program is contrary to both the         rate to calculate the benefit accurately
countervailing duty cases to use the        World Trade Organization (WTO)               derives the amount that the recipient
average monthly interest rate for           Agreement and section 771 of the Tariff      would pay on a comparable commercial
purposes of deriving a benchmark            Act of 1930. Specifically, they argue that   loan.
interest rate in an inflationary economy.   while section 771(5)(E)(iii) of the Act         While section 351.505 of the
See e.g., Final Affirmative                 and Part V, Article 14(c) of the             Department’s regulations are not in
Countervailing Duty Determination:          Agreement on Subsidies and                   effect for the instant reviews, the
Certain Pasta from Turkey, 61 FR 30366,     Countervailing Measures (SCM), dealing       Preamble restates the Department’s
30367 (June 14, 1996). In prior             with loan guarantees, include                practice of using the ‘‘effective interest
countervailing duty reviews of subject      provisions for adjusting for fees, the       rate’’ rather than the ‘‘nominal interest
merchandise, the Department has             statutory provisions addressing loans in     rate’’ because effective interest rates are
consistently used, as the benchmark         section 771(5)(E)(ii) of the Act and part    intended to take account of the actual
interest rates, the monthly average         V, Article 14(c) of the SCM contain no       cost of the loan, including the amount
                        Federal Register / Vol. 64, No. 157 / Monday, August 16, 1999 / Notices                             44499

of any fees, commissions, compensating       of time in U.S. dollars before being         of the benefit received. Furthermore,
balances, government charges or              converted into local currency means          because the conversion to local currency
penalties paid in addition to the            that the value of the benefit was more       occurred at a future date renders the
nominal interest. See section                stable during that period in the Turkish     value of the benefit uncertain at the time
351.505(a)(1); Preamble to the               case than it was in the Brazilian and        it is earned.
Regulations, 63 FR 65362 (November 25,       Mexican cases. In the Brazilian and             Department’s Position: The
1998).                                       Mexican cases, the value of the benefit      Department has previously addressed
   As explained in the Preliminary           was converted into local currency at the     the arguments raised by Mannesmann.
Results at 16926, the pre-shipment           time of exportation and began                See 1996 Pipe and Tube and Line Pipe,
export credit program allows for the         immediately to lose value during the         63 FR at 18887–88. No new information
exemption of certain fees that are           period between the date of export and        has been presented that would warrant
normally charged on loans, provided          the date of receipt of the benefit because   reconsideration of the Department’s
that the loans are used in financing         of the effects of inflation. Furthermore,    prior findings. Our normal practice is to
exportation and other foreign exchange       Mannesmann argues that in the Turkish,       countervail benefits when they affect
earning activities. In light of the          Brazilian and Mexican cases, the ‘‘real’’    the firm’s cash flow, usually when the
exemption granted under this program,        value of the benefit that would              company receives the benefit. See e.g.,
the only way to determine the amount         ultimately be received by the exporters      Ferrochrome from South Africa, Final
that the recipient would normally pay        was not known at the time of export.         Results of Countervailing Duty
on a comparable commercial loan              Thus, the benefits from the Freight          Administrative Review, 56 FR 33254,
would be to factor in the fees a recipient   Rebate program should be measured on         33255 (July 19, 1991) (Ferrochrome from
would incur on this type of transaction.     the same basis as the Brazilian and          South Africa). However, the Department
For this reason, consistent with the         Mexican cases.                               has deviated from its long-standing
Department’s practice, we compare               Mannesmann states that in 1995 Pipe       practice to countervail an export
effective rates rather than nominal rates.   and Tube and Line Pipe, the Department       subsidy on the date the benefit is
See e.g., Certain Iron-Metal Castings        countervailed benefits received under        received on an ‘‘earned basis’’ where the
from India: Final Results of                 the Export Performance Credit program        benefit is provided as a percentage of
Countervailing Duty Administrative           on the date they were earned, and not        the value of the exported merchandise
Review, 60 FR 44843 (August 29, 1995)        when they were received. Mannesmann          on a shipment-by-shipment basis, and
(Castings from India).                       argues that despite the Department’s         the exact amount of the countervailable
                                             attempts to distinguish the Freight          subsidy is known at the time of export.
Comment 4: Measurement of
                                             Rebate program from the Export               See e.g., Castings from India, 60 FR at
Countervailable Benefit: Earned Versus
                                             Performance Credit program, the two          44844. As stated in 1995 Pipe and Tube
Receipt Basis
                                             programs were virtually identical.           and Line Pipe, and in 1996 Pipe and
   Mannesmann argues that the                Mannesmann also argues that the              Tube and Line Pipe, the exporter could
Department deviated from its long-           exporters did not know, at the time of       not have known at the time of export the
standing practice of measuring benefits      export, the exact exchange rate that         exact amount of the countervailable
on an earned basis, i.e., on the date of     would be used to convert the dollar          benefit from the Freight Rebate program
export where the benefit is earned,          amount to Turkish Lira (TL) in either        because the freight payments were only
either as a fixed percentage of the f.o.b.   program; therefore, the exporters did not    stated in U.S. dollars per ton, but the
value or as a fixed amount per ton, on       know the ‘‘precise’’ amount of the           benefit was not tied to the U.S. dollar.
a shipment-by-shipment basis, and the        benefit in TL on the date of export. On      The Government of Turkey (GRT) did
exporter knows the total amount of the       the other hand, they argue that under        not initially commit to use the exchange
benefit at the time of export.               both programs, the exporters knew the        rate existing on the date of export.
Mannesmann cites several cases, which        exact U.S. dollar amount of the benefit      Therefore, because of the high rate of
they claim demonstrates that the             on the date of export, and the exporters     inflation in Turkey, the exporters could
Department has taken this approach           expected to receive the equivalent value     not have known the amount of the
even in cases where the benefit was          in TL at a later date. Therefore, they       benefit ultimately to be received at the
denominated in local currency, in high       argue that the price effect and the          time of export. See 1996 Pipe and Tube
inflationary economies, and in cases         volume effect of the benefit were            and Line Pipe, 63 FR at 18888. In the
where there were long delays between         exerted at the time of export and not at     Brazilian and Mexican cases cited by
the date of exportation and the date of