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					8–19–96                                Monday
Vol. 61   No. 161                      August 19, 1996
Pages 42773–42964




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II                            Federal Register / Vol. 61, No. 161 / Monday, August 19, 1996

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                                                                                                                                                       2
                                                                                                                     III

Contents                                                    Federal Register
                                                            Vol. 61, No. 161

                                                            Monday, August 19, 1996



Agency for International Development                        Committee for the Implementation of Textile Agreements
RULES                                                       NOTICES
Acquisition regulations:                                    Cotton, wool, and man-made textiles:
 Miscellaneous amendments                                     China, 42931–42932
   Correction, 42939                                          Egypt, 42933
                                                              Korea, 42933
Agricultural Research Service                                 Maldives, 42934
RULES                                                         Turkey, 42934–42935
Award of fellowships to applicants from other American
   republics; Federal regulatory review; CFR part           Commodity Credit Corporation
   removed, 42773                                           NOTICES
                                                            Agency information collection activities:
Agriculture Department                                       Proposed collection; comment request, 42829–42831
See Agricultural Research Service
See Animal and Plant Health Inspection Service              Defense Department
See Commodity Credit Corporation                            See Air Force Department
See Rural Housing Service                                   See Navy Department

Air Force Department                                        Education Department
NOTICES                                                     NOTICES
Agency information collection activities:                   Meetings:
 Proposed collection; comment request, 42873                 National Assessment Governing Board, 42874
Meetings:
 Scientific Advisory Board, 42873                           Energy Department
                                                            See Federal Energy Regulatory Commission
Animal and Plant Health Inspection Service
PROPOSED RULES                                              Environmental Protection Agency
Plant-related quarantine, domestic:                         RULES
  Karnal bunt disease—                                      Air pollution; standards of performance for new stationary
    Seed planting and regulated articles movement, 42824        sources:
NOTICES                                                       Authority delegations—
Agency information collection activities:                       Alabama et al., 42808–42812
 Proposed collection; comment request, 42829                Air programs:
                                                              Fuel and fuel additives—
Centers for Disease Control and Prevention                      Diesel fuel sulfur requirement exemption; Alaska,
NOTICES                                                              42812–42817
Fernhald Dosimetry Reconstruction Project; meeting,         PROPOSED RULES
    42908–42909                                             Air programs:
Meetings:                                                     Fuel and fuel additives—
  Citizens Advisory Committee, 42909                            Diesel fuel sulfur requirement exemption; Alaska,
                                                                     42827
Children and Families Administration                        Air quality implementation plans; approval and
RULES                                                           promulgation; various States:
Native American programs:                                     American Samoa et al.; correction, 42939
 Ineligible applications; appeals procedure, 42817–42822    NOTICES
                                                            Agency information collection activities:
Coast Guard                                                   Submission for OMB review; comment request, 42884–
RULES                                                              42887
Dangerous cargoes:                                          Grants, State and local assistance:
  Bulk liquid, liquefied gas, or compressed gas hazardous     Performance partnership grants, State and tribal
      materials; carriage; CFR correction, 42822                   environmental programs; interim guidance, 42887–
NOTICES                                                            42899
Meetings:                                                   Hazardous waste:
 Commercial Fishing Industry Vessel Advisory Committee,       Waste Isolation Pilot Plant (WIPP); no-migration
      42936                                                        determination petition from Energy Department;
                                                                   availability, 42899–42900
Commerce Department                                         Meetings:
See Export Administration Bureau                              National Advisory Council for Environmental Policy and
See Foreign-Trade Zones Board                                      Technology, 42901
See International Trade Administration                      Pesticide programs:
See National Oceanic and Atmospheric Administration           Agricultural worker protection standards program; public
See Patent and Trademark Office                                    meetings, 42901–42902
IV                 Federal Register / Vol. 61, No. 161 / Monday, August 19, 1996 / Contents


Superfund program:                                           Federal Housing Enterprise Oversight Office
  Supplemental environmental projects use in EPA             PROPOSED RULES
      settlements; policy, 42902                             Risk-based capital:
Water pollution control:                                       Stress tests; house price index (HPI) use and benchmark
  Great Lakes Basin; elimination of persistent toxic               loss experience establishment, 42824–42825
      substance discharge; strategy availability, 42902–
      42903                                                  Federal Reserve System
                                                             NOTICES
Executive Office of the President                            Banks and bank holding companies:
See Management and Budget Office                               Change in bank control, 42903
See Presidential Documents                                     Formations, acquisitions, and mergers, 42903–42904
See Trade Representative, Office of United States
                                                             Federal Trade Commission
Export Administration Bureau                                 NOTICES
NOTICES                                                      Prohibited trade practices:
Meetings:                                                      Grey Advertising, Inc., 42904–42908
 Materials Technical Advisory Committee, 42831–42832
 Transportation and Related Equipment Technical              Food and Drug Administration
      Advisory Committee, 42832                              PROPOSED RULES
                                                             Labeling of drug products (OTC):
Federal Aviation Administration                                Orally ingested drug products containing calcium,
RULES                                                              magnesium, and potassium (OTC)
Airworthiness directives:                                        Correction, 42826–42827
                                                             NOTICES
  Airbus, 42777–42779
  AlliedSignal Inc., 42782–4278                              Compliance policy guides:
  McDonnell Douglas, 42776–42777, 42779–42781                  Revocation and availability, 42909–42910
  Pratt & Whitney, 42781–42782
                                                             Foreign-Trade Zones Board
  Saab, 42773–42776
                                                             NOTICES
Class E airspace, 42784–42786
PROPOSED RULES
                                                             Applications, hearings, determinations, etc.:
Airworthiness directives:                                     California, 42832
  Aerospatiale, 42825–42826                                   Florida, 42832–42833

                                                             Health and Human Services Department
Federal Deposit Insurance Corporation
                                                             See Centers for Disease Control and Prevention
NOTICES
                                                             See Children and Families Administration
Meetings; Sunshine Act, 42903
                                                             See Food and Drug Administration
                                                             See Health Resources and Services Administration
Federal Election Commission                                  See Substance Abuse and Mental Health Services
NOTICES
                                                                 Administration
Meetings; Sunshine Act, 42903
                                                             Health Resources and Services Administration
Federal Energy Regulatory Commission                         NOTICES
NOTICES
                                                             Grants and cooperative agreements; availability, etc.:
Electric rate and corporate regulation filings:                Public health education and services, 42910–42912
  Trakya Elektrik Uretim ve Ticaret A.S. et al., 42880–
       42883                                                 Housing and Urban Development Department
Natural gas certificate filings:                             See Federal Housing Enterprise Oversight Office
  Northern Natural Gas Co. et al., 42883–42884               RULES
Applications, hearings, determinations, etc.:                Federal regulatory review:
  ANR Pipeline Co., 42874                                      Congregate housing services program, 42942–42949
  East Tennessee Natural Gas Co., 42874–42875,               Grants:
  El Paso Natural Gas Co., 42875                               Nehemiah housing opportunity grants program;
  Koch Gateway Pipeline Co., 42875                                 streamlining, 42952–42954
  Long Island Lighting Co., 42875–42876                      Mortgage and loan insurance programs:
  Midwestern Gas Transmission Co., 42876, 42876                Single family mortgage insurance; annual premium
  Mississippi River Transmission Corp. et al., 42876–42877         adjustment
  National Fuel Gas Supply Corp., 42877                          Correction, 42786–42787
  New York State Electric & Gas Corp., 42877                 PROPOSED RULES
  Northern Natural Gas Co., 42877                            Public and Indian housing:
  Pacific Gas & Electric Co. et al., 42878–42879               Fathers’ role in public housing families, strengthening;
  Tennessee Gas Pipeline Co., 42879                                regulatory development
  Transcontinental Gas Pipe Line Corp., 42879–42880              Correction, 42939

Federal Highway Administration                               Interior Department
RULES                                                        See Land Management Bureau
Motor carrier safety standards:                              See Reclamation Bureau
 Intermodal transportation, 42822–42823                      See Surface Mining Reclamation and Enforcement Office
                     Federal Register / Vol. 61, No. 161 / Monday, August 19, 1996 / Contents                         V


Internal Revenue Service                                   Navy Department
NOTICES                                                    NOTICES
Agency information collection activities:                  Environmental statements; notice of intent:
 Proposed collection; comment request, 42937                 Naval Station Roosevelt Roads, PR; solid waste disposal,
                                                                 42873–42874
International Development Cooperation Agency
See Agency for International Development                   Nuclear Regulatory Commission
                                                           NOTICES
International Trade Administration                         Petitions; Director’s decisions
NOTICES                                                      Doyle, Shannon T., 42922
Antidumping:                                               Applications, hearings, determinations, etc.:
 Fresh cut flowers from—                                     Middle Monongahela Industrial Development
    Colombia, 42833–42871                                         Association, Inc., 42921–42922

Justice Department                                         Office of Federal Housing Enterprise Oversight
See National Institute of Corrections                      See Federal Housing Enterprise Oversight Office

Labor Department                                           Office of Management and Budget
See Mine Safety and Health Administration                  See Management and Budget Office

Land Management Bureau                                     Office of United States Trade Representative
NOTICES                                                    See Trade Representative, Office of United States
Realty actions; sales, leases, etc.:
  Idaho, 42912–42913                                       Patent and Trademark Office
  Oregon, 42913                                            RULES
                                                           Patent cases and secrecy of inventions and licenses to
Management and Budget Office                                   export and file applications in foreign countries:
NOTICES                                                      Patent applications; 18-month publication schedule,
Budget rescissions and deferrals, 42956–42960                    42790–42807
                                                           Service of Process; Testimony by Employees and the
Mine Safety and Health Administration                          Production of Documents in Legal Proceedings; CFR
RULES                                                          parts removed, 42807–42808
Metal mine safety and health:
 Workplace examinations; program policy, 42787–42788       Personnel Management Office
NOTICES                                                    RULES
Safety standard petitions:                                 Pay under General Schedule:
  Serendipity Mining, Inc. et al., 42915–42919               Locality-based comparability payments—
                                                               Metropolitan areas removed; correction, 42939
National Aeronautics and Space Administration
NOTICES
                                                           Postal Rate Commission
Meetings:                                                  NOTICES
  International Space Station Advisory Committee, 42919–   Post office closings; petitions for appeal:
       42920                                                 Shiloh, VA, 42922–42923
  Life and Microgravity Sciences and Applications
       Advisory Committee, 42920
  Space Science Advisory Committee, 42920                  Presidential Documents
                                                           EXECUTIVE ORDERS
Patent licenses; non-exclusive, exclusive, or partially
    exclusive:                                             Taiwan; Maintaining Unofficial Relations With the People
  Bishop Industries, Inc., 42920                               (EO 13014), 42963–42964
  Drexelbrook Engineering Co., 42920
  Morgan Matroc, Inc., 42921                               Public Health Service
                                                           See Centers for Disease Control and Prevention
National Institute of Corrections                          See Food and Drug Administration
NOTICES
                                                           See Health Resources and Services Administration
Grants and cooperative agreements; availability, etc.:     See Substance Abuse and Mental Health Services
  Program plan (FY 1997), 42914–42915                          Administration

National Oceanic and Atmospheric Administration            Reclamation Bureau
PROPOSED RULES                                             NOTICES
Fishery conservation and management:                       Environmental statements; availability, etc.:
  Gulf of Mexico reef fish, 42828                            Interim South Delta Program, CA, 42913–42914
NOTICES
Meetings:                                                  Rural Housing Service
 Gulf of Mexico Fishery Management Council, 42871–         RULES
      42872                                                Federal regulatory review:
 Mid-Atlantic Fishery Management Council, 42872–42873        Congregate housing services program, 42942–42949
VI                 Federal Register / Vol. 61, No. 161 / Monday, August 19, 1996 / Contents


Securities and Exchange Commission                           Transportation Department
RULES                                                        See Coast Guard
Securities and investment companies:                         See Federal Aviation Administration
  Money market funds; risk-limiting conditions imposed,      See Federal Highway Administration
      etc., 42786                                            See Surface Transportation Board
NOTICES
Self-regulatory organizations; proposed rule changes:
                                                             Treasury Department
  Government Securities Clearing Corp., 42925–42927
                                                             See Internal Revenue Service
  National Securities Clearing Corp., 42927–42929
  Stock Clearing Corp. of Philadelphia et al., 42929–42930
Applications, hearings, determinations, etc.:                Veterans Affairs Department
  Benman California Tax-Free Trust, et al., 42923–42925      NOTICES
                                                             Meetings:
Social Security Administration                                Special Medical Advisory Group, 42937–42938
NOTICES
Agency information collection activities:
 Submission for OMB review; comment request, 42930
                                                             Separate Parts In This Issue
Substance Abuse and Mental Health Services
   Administration                                            Part II
NOTICES                                                      Department of Agriculture, Rural Housing Service and
Meetings; advisory committees:                                   Department of Housing and Urban Development,
 August, 42912                                                   42942–42949
Surface Mining Reclamation and Enforcement Office
RULES
                                                             Part III
Permanent program and abandoned mine land reclamation        Department of Housing and Urban Development, 42952–
    plan submissions:                                            42954
  Virginia, 42788–42790
                                                             Part IV
Surface Transportation Board                                 Office of Management and Budget, 42956–42960
NOTICES
Railroad operation, acquisition, construction, etc.:         Part V
  CWRR, Inc., 42936                                          The President, 42963–42964
Railroad services abandonment:
  Sequatchie Valley Railroad Co. et al., 42936–42937

Tennessee Valley Authority                                   Reader Aids
NOTICES                                                      Additional information, including a list of public laws,
Meetings; Sunshine Act, 42930–42931                          telephone numbers, reminders, and finding aids, appears in
                                                             the Reader Aids section at the end of this issue.
Textile Agreements Implementation Committee
See Committee for the Implementation of Textile
    Agreements
                                                             Electronic Bulletin Board
Trade Representative, Office of United States                Free Electronic Bulletin Board service for Public Law
NOTICES                                                      numbers, Federal Register finding aids, and a list of
Tariff-rate quota amount determinations:                     documents on public inspection is available on 202–275–
  Organic refined sugar, 42935–42936                         1538 or 275–0920.
                                Federal Register / Vol. 61, No. 161 / Monday, August 19, 1996 / 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.

3 CFR
Executive Order:
12143 (Superceded by
  EO 13014)....................42963
13014...............................42963
5 CFR
531...................................42939
7 CFR
9.......................................42773
1944.................................42942
Proposed Rules:
301...................................42824
12 CFR
Proposed Rules:
1270.................................42824
14 CFR
39 (6 documents) ............42773
   42776, 42777, 42779, 42781,
                                     42782
71 (2 documents) ............42784
                                   427885
Proposed Rules:
39.....................................42825
17 CFR
230...................................42786
239...................................42786
270...................................42786
274...................................42786
21 CFR
Proposed Rules:
201...................................42826
331...................................42826
24 CFR
203...................................42786
221...................................42786
280...................................42952
700...................................42949
Proposed Rules:
Ch. IX...............................42939
30 CFR
56.....................................42787
57.....................................42787
946...................................42788
37 CFR
1.......................................42790
15.....................................42807
15a...................................42807
40 CFR
60.....................................42808
80.....................................42812
Proposed Rules:
52.....................................42939
80.....................................42827
45 CFR
1336.................................42817
46 CFR
153...................................42822
48 CFR
719...................................42939
722...................................42939
752...................................42939
49 CFR
390...................................42822
50 CFR
Proposed Rules:
622...................................42828
                                                                                                                                   42773

Rules and Regulations                                                                           Federal Register
                                                                                                Vol. 61, No. 161

                                                                                                Monday, August 19, 1996



This section of the FEDERAL REGISTER            may take effect 30 days after                   Additionally, there have been reports
contains regulatory documents having general    publication.                                    indicating that power levers on the
applicability and legal effect, most of which                                                   control quadrant have been moved aft of
are keyed to and codified in the Code of        List of Subjects in 7 CFR Part 9
                                                                                                the flight idle position during flight due
Federal Regulations, which is published under      Agriculture, Scholarships and                to improper usage of the mechanical
50 titles pursuant to 44 U.S.C. 1510.           fellowships, Type of fellowships,               beta stop. The actions specified in this
The Code of Federal Regulations is sold by      qualifications, award of fellowships,           AD are intended to prevent such
the Superintendent of Documents. Prices of      allowances and expenses, duration of            movement of the power lever(s) during
new books are listed in the first FEDERAL       fellowships, official notification, and         flight, which could result in propeller
REGISTER issue of each week.                    definitions.                                    overspeed, engine damage, and loss of
                                                                                                power to one or both engines.
                                                PART 9—[REMOVED AND RESERVED]
                                                                                                DATES: Effective September 3, 1996.
DEPARTMENT OF AGRICULTURE
                                                  Accordingly, 7 CFR Part 9 is removed             The incorporation by reference of
Agricultural Research Service                   and reserved.                                   certain publications listed in the
                                                  Authority: 5 U.S.C. 301.                      regulations is approved by the Director
7 CFR Part 9                                      Done at Washington, D.C., this 12th day of
                                                                                                of the Federal Register as of September
                                                August 1996.                                    3, 1996.
Award of Fellowships to Applicants                                                                 Comments for inclusion in the Rules
                                                Floyd P. Horn,
From Other American Republics                                                                   Docket must be received on or before
                                                Administrator, Agricultural Research Service.
                                                                                                October 18, 1996.
AGENCY:  Agricultural Research Service,         [FR Doc. 96–21069 Filed 8–16–96; 8:45 am]
                                                                                                ADDRESSES: Submit comments in
USDA.                                           BILLING CODE 3410–03–M
                                                                                                triplicate to the Federal Aviation
ACTION: Final rule.                                                                             Administration (FAA), Transport
                                                                                                Airplane Directorate, ANM–103,
SUMMARY: This action is being taken as          DEPARTMENT OF TRANSPORTATION                    Attention: Rules Docket No. 96–NM–
part of the National Performance Review                                                         181–AD, 1601 Lind Avenue, SW.,
program to eliminate unnecessary                Federal Aviation Administration
                                                                                                Renton, Washington 98055–4056.
regulations and improve those that
                                                14 CFR Part 39                                     The service information referenced in
remain. This final rule removes obsolete
                                                                                                this AD may be obtained from SAAB
regulations pertaining to award of              [Docket No. 96–NM–181–AD; Amendment             Aircraft AF, SAAB Aircraft Product
fellowships to applicants from other            39–9713; AD 96–17–05]                                                     ¨
                                                                                                Support, S–581.88, Linkping, Sweden.
American Republics by the Agricultural
                                                RIN 2120–AA64                                   This information may be examined at
Research Service.
                                                                                                the FAA, Transport Airplane
EFFECTIVE DATE: September 18, 1996.             Airworthiness Directives; Saab Model            Directorate, 1601 Lind Avenue, SW.,
FOR FURTHER INFORMATION CONTACT:                SAAB SF340A and SAAB 340B Series                Renton, Washington; or at the Office of
Darrell F. Cole, Assistant Deputy               Airplanes                                       the Federal Register, 800 North Capitol
Administrator, National Program Staff,                                                          Street, NW., suite 700, Washington, DC.
                                                AGENCY:  Federal Aviation
Agricultural Research Service, USDA,            Administration, DOT.                            FOR FURTHER INFORMATION CONTACT:
Bldg, 005, Room 120, Beltsville                                                                 Ruth E. Harder, Aerospace Engineer,
                                                ACTION: Final rule; request for
Agricultural Research Center, Beltsville,                                                       Standardization Branch, ANM–113,
MD 20705, (301) 504–5861.                       comments.
                                                                                                FAA, Transport Airplane Directorate,
SUPPLEMENTARY INFORMATION: This rule            SUMMARY:    This amendment adopts a             1601 Lind Avenue, SW., Renton,
has been determined not to be                   new airworthiness directive (AD) that is        Washington 98055–4056; telephone
significant for the purpose of Executive        applicable to certain Saab Model SAAB           (206) 227–1721; fax (206) 227–1149.
Order 12866 and, therefore, has not             SF340A and SAAB 340B series                     SUPPLEMENTARY INFORMATION: The FAA
been reviewed by the Office of                  airplanes. This action requires the             has received a report from an operator
Management and Budget. Also, this rule          installation of a mechanical flight idle        of a Model SAAB 340B series airplane
will not cause a significant economic           stop on the control quadrant of the flight      indicating that, during training, the
impact or other substantial effect on           compartment. This action also requires          flightcrew noticed a reduction in the
small entities and, therefore, the              a revision of the Airplane Flight Manual        protection associated with movement of
provisions of the Regulatory Flexibility        to ensure the use of certain operating          the power levers aft of the flight idle
Act, 5 U.S.C. 601 et seq., do not apply.        procedures after the mechanical flight          position during flight. Moving the
This action is being taken as part of the       idle stop is installed. Additionally, this      power lever settings aft of the flight idle
National Performance Review program             action provides an optional terminating         position (or ‘‘below flight idle’’) places
to eliminate unnecessary regulations.           action for the requirements of this AD.         the airplane in the ‘‘beta’’ range of
Since this rule relates to internal agency      This amendment is prompted by a                 operation. ‘‘Beta’’ is the range of
management and removes obsolete                 report indicating that the means of             propeller operation intended for use
recommendations which have not been             protection against the selection of the         only during taxi, ground idle, or reverse
used for many years, notice of proposed         ‘‘beta’’ range of propeller operation           operations. If ‘‘beta’’ range is selected,
rulemaking and opportunity for public           during flight has been reduced on               either intentionally or inadvertently,
comment are not required, and this rule         certain modified control quadrants.             during flight, it could result in propeller
42774      Federal Register / Vol. 61, No. 161 / Monday, August 19, 1996 / Rules and Regulations

overspeed, engine damage, and loss of          1. Saab Service Bulletin 340–76–034,      Explanation of Requirements of Rule
power to one or both engines.               dated January 4, 1995, describes                Since an unsafe condition has been
                                            procedures for installation of a             identified that is likely to exist or
Automatic Flight Idle Stop Modification
                                            mechanical flight idle stop on the           develop on other airplanes of the same
   The airplane involved in the incident    control quadrant in the flight               type design registered in the United
referred to above was equipped with a       compartment. Accomplishment of this          States, this AD is being issued to
modified control quadrant. The              installation is intended to prevent the      prevent movement of the power lever(s)
installation of a new control quadrant is   power levers from being moved aft of         aft of the flight idle position during
described in Saab Service Bulletins         the flight idle stop during flight. The      flight. That situation could result in the
340–76–032 and 340–76–037, and is           Luftfartsverket (LFV), the airworthiness     overspeed of the propeller and power
part of the modification necessary to       authority for Sweden, has classified this    turbine of the engines and consequent
install an automatic flight idle stop       service bulletin as mandatory and            loss of power to one or both engines, as
system that will automatically prevent      issued Swedish airworthiness directive       well as severe engine damage.
movement of the power levers aft of         1–067, dated January 9, 1995, in order          This AD requires the installation of
flight idle during flight.                  to assure the continued airworthiness of     the mechanical flight idle stop on the
   The modification also entails the        these airplanes in Sweden.                   control quadrant in the flight
removal of a certain beta stop protection      2. Saab Service Bulletin 340–76–032,      compartment in accordance with Saab
device that was a basic original feature    Revision 2, dated December 8, 1995; and      Service Bulletin 340–76–034, described
of the Saab Model 340 series airplanes.     Revision 3, dated March 25, 1996;            previously.
This original protection device featured    describe procedures for installation and        To prevent inappropriate usage of this
serrations in the power lever assembly      activation of an automatic flight idle       mechanical stop, this AD also requires
that helped to prevent the inadvertent      stop system on the control quadrant in       that the FAA-approved Airplane Flight
movement of the power levers aft of the     the flight compartment.                      Manual (AFM) be revised to ensure that
flight idle position. The modified                                                       the flight crews are advised of the
                                               The installation involves:
control quadrant does not provide these                                                  specific limitations necessary to address
serrations, however, and thus eliminates    —Removing the mechanical beta stop (if       flight operations when the mechanical
what would serve as a ‘‘back-up’’ feature      installed),                               flight idle stop is installed.
for beta stop protection. This is not an    —Removing the old control quadrant,             Additionally, this AD provides for
issue of concern on airplanes where the     —Installing a new/modified control           optional terminating action for the
automatic flight idle stop system has          quadrant with an automatic flight idle    requirements of this AD, as installation
been installed and activated. However,         stop, and                                 of the modified control quadrant and
for airplanes on which the modified         —Accomplishing a functional test of the      activation of the automatic flight idle
control quadrant is installed, but the         flight idle stop system.                  stop.
automatic flight idle stop system is not       Accomplishment of this installation
yet activated, beta stop protection is                                                   Determination of Rule’s Effective Date
                                            also will prevent the power levers from
even further reduced.                                                                       Since a situation exists that requires
                                            being moved aft of the flight idle stop
                                                                                         the immediate adoption of this
Mechanical Flight Idle Stop                 during flight. Installation and activation
                                                                                         regulation, it is found that notice and
Modification                                of an automatic flight idle stop, if
                                                                                         opportunity for prior public comment
   Some Saab Model 340 series airplanes     accomplished, eliminates the need for
                                                                                         hereon are impracticable, and that good
have been modified with the installation    installation of a mechanical flight idle
                                                                                         cause exists for making this amendment
of a mechanical beta stop mechanism on      stop. The LFV classified this service
                                                                                         effective in less than 30 days.
the control quadrant in accordance with     bulletin as mandatory and issued
Saab Service Bulletin 340–76–034.           Swedish airworthiness directive 1–070,       Interim Action
(Procedures for installing a mechanical     dated April 10, 1995, in order to assure        This AD is considered to be interim
stop are also described in Saab Service     the continued airworthiness of these         action. On March 15, 1996, the FAA
Bulletins 340–76–036 and 240–76–037.)       airplanes in Sweden.                         issued a notice of proposed rulemaking
This mechanical stop is manually               3. Saab Service Bulletin 340–76–038,      (NPRM), Docket 95–NM–243–AD (61 FR
operated and, if used, prevents any         dated December 8, 1995, describes            11591, March 21, 1996), to require
power lever from being unintentionally      procedures to reactivate the automatic       installation and activation of the
moved into beta range during                flight idle stop system for those systems    automatic flight idle stop on certain
retardation of the power lever during       that have been installed previously, but     Saab Model SAAB SF340A and SAAB
flight. It is considered to be an interim   deactivated in accordance with Saab          340B series airplanes. However, the
improvement in beta protection until        Service Bulletin 340–76–036. If              FAA has determined that the
the automatic flight idle stop system is    accomplished, such reactivation also         mechanical flight idle stop, as required
installed and activated.                    eliminates the need for installation of a    by this AD, must be provided for certain
   While this mechanical stop serves as     mechanical flight idle stop. The LFV has     airplanes in the interim until the
a means of beta protection, the FAA has     approved the technical content of this       automatic flight idle stops are installed
received several reports indicating that    service bulletin.                            and activated.
the flight crew did not use the             U.S. Type Certification of the Airplanes     Comments Invited
mechanical stop, or used it improperly,
and moved the power levers into the           Saab Model SAAB SF340A and SAAB               Although this action is in the form of
beta range during flight.                   340B series airplanes are manufactured       a final rule that involves requirements
                                            in Sweden and are type certificated for      affecting flight safety and, thus, was not
Explanation of Relevant Service             operation in the United States under the     preceded by notice and an opportunity
Information                                 provisions of section 21.29 of the           for public comment, comments are
  Saab has issued the following service     Federal Aviation Regulations (14 CFR         invited on this rule. Interested persons
bulletins that pertain to beta protection   21.29) and the applicable bilateral          are invited to comment on this rule by
devices:                                    airworthiness agreement.                     submitting such written data, views, or
           Federal Register / Vol. 61, No. 161 / Monday, August 19, 1996 / Rules and Regulations                                        42775

arguments as they may desire.                Rules Docket at the location provided                  (b) For airplanes subject to paragraph (a) of
Communications shall identify the            under the caption ADDRESSES.                        this AD; and for airplanes on which a
Rules Docket number and be submitted                                                             mechanical flight idle stop has been installed
                                             List of Subjects in 14 CFR Part 39                  on the control panel in accordance with Saab
in triplicate to the address specified
                                               Air transportation, Aircraft, Aviation            Service Bulletin 340–76–034, dated January
under the caption ADDRESSES. All                                                                 4, 1995, previous to the effective date of this
communications received on or before         safety, Incorporation by reference,
                                                                                                 AD: Within 7 days after the effective date of
the closing date for comments will be        Safety.                                             this AD, revise the Limitations Section of the
considered, and this rule may be             Adoption of the Amendment                           FAA-approved Airplane Flight Manual
amended in light of the comments                                                                 (AFM) to include the following operating
received. Factual information that             Accordingly, pursuant to the                      limitations. This may be accomplished by
supports the commenter’s ideas and           authority delegated to me by the                    inserting a copy of this AD in the AFM.
suggestions is extremely helpful in          Administrator, the Federal Aviation                 ‘‘Mechanical Beta Stop Operating Limitations
evaluating the effectiveness of the AD       Administration amends part 39 of the
                                                                                                 —The stop must be in the beta open position
action and determining whether               Federal Aviation Regulations (14 CFR                   during all ground operations including
additional rulemaking action would be        part 39) as follows:                                   takeoff run.
needed.                                                                                          —The stop must be lifted and positioned
                                             PART 39—AIRWORTHINESS                                  fully forward and down in the beta stop
  Comments are specifically invited on
the overall regulatory, economic,            DIRECTIVES                                             position during climb-out after take-off.
environmental, and energy aspects of                                                             —The stop must remain in the beta stop
                                               1. The authority citation for part 39
                                                                                                    position throughout the remainder of the
the rule that might suggest a need to        continues to read as follows:                          flight until after touchdown.
modify the rule. All comments                  Authority: 49 U.S.C. 106(g), 40113, 44701.        —The stop must be lifted and positioned in
submitted will be available, both before                                                            the beta open position immediately after
and after the closing date for comments,     § 39.13   [Amended]                                    touchdown.
in the Rules Docket for examination by         2. Section 39.13 is amended by                    —Landing Field Lengths Required must be
interested persons. A report that            adding the following new airworthiness                 increased by 5% and 8% for flap settings
summarizes each FAA-public contact           directive:                                             35 and 20, respectively.’’
concerned with the substance of this AD      96–17–05 SAAB Aircraft AB: Amendment
                                                                                                    (c) Installation and activation of the
will be filed in the Rules Docket.                                                               automatic flight idle stop system in
                                                   39–9713. Docket 96–NM–181–AD.
  Commenters wishing the FAA to                                                                  accordance with Saab Service Bulletin 340–
                                                Applicability: Model SAAB SF340A and             76–032, Revision 2, dated December 8, 1995,
acknowledge receipt of their comments        SAAB 340B series airplanes on which Saab
submitted in response to this rule must                                                          or Revision 3, dated March 25, 1996; or
                                             Service Bulletin 340–76–034, dated January          reactivation of the system in accordance with
submit a self-addressed, stamped             4, 1995; Saab Service Bulletin 340–76–036,          Saab Service Bulletin 340–76–038, dated
postcard on which the following              dated December 8, 1995; or Saab Service             December 8, 1995; constitute terminating
statement is made: ‘‘Comments to             Bulletin 340–76–037, dated December 8,              action for the requirements of this AD. Once
Docket Number 96–NM–181–AD.’’ The            1995, have been accomplished; certificated in       the system has been activated, the
postcard will be date stamped and            any category.                                       mechanical flight idle stop and the AFM
returned to the commenter.                      Note 1: This AD applies to each airplane         revision required by this AD may be
                                             identified in the preceding applicability           removed.
Regulatory Impact                            provision, regardless of whether it has been           (d) An alternative method of compliance or
   The regulations adopted herein will       otherwise modified, altered, or repaired in         adjustment of the compliance time that
                                             the area subject to the requirements of this        provides an acceptable level of safety may be
not have substantial direct effects on the   AD. For airplanes that have been modified,          used if approved by the Manager,
States, on the relationship between the      altered, or repaired so that the performance        Standardization Branch, ANM–113, FAA
national government and the States, or       of the requirements of this AD is affected, the     Transport Airport Directorate. Operators
on the distribution of power and             owner/operator must request approval for an         shall submit their requests through an
responsibilities among the various           alternative method of compliance in                 appropriate FAA Principal Maintenance
levels of government. Therefore, in          accordance with paragraph (d) of this AD.           Inspector, who may add comments and then
accordance with Executive Order 12612,       The request should include an assessment of         send it to the Manager, Standardization
it is determined that this final rule does   the effect of the modification, alteration, or      Branch, ANM–113.
                                             repair on the unsafe condition addressed by
not have sufficient federalism                                                                      Note 2: Information concerning the
                                             this AD; and, if the unsafe condition has not
implications to warrant the preparation                                                          existence of approved alternative methods of
                                             been eliminated, the request should include
of a Federalism Assessment.                  specific proposed actions to address it.            compliance with this AD, if any, may be
   The FAA has determined that this                                                              obtained from the Standardization Branch,
                                                Compliance: Required as indicated, unless        ANM–113.
regulation is an emergency regulation        accomplished previously.
that must be issued immediately to              To prevent the movement of both power               (e) Special flight permits may be issued in
correct an unsafe condition in aircraft,     levers aft of the flight idle stop during flight,   accordance with sections 21.197 and 21.199
                                             accomplish the following:                           of the Federal Aviation Regulations (14 CFR
and that it is not a ‘‘significant                                                               21.197 and 21.199) to operate the airplane to
regulatory action’’ under Executive             (a) For airplanes on which an automatic
                                             flight idle stop system has been installed, but     a location where the requirements of this AD
Order 12866. It has been determined          deactivated in accordance with Saab Service         can be accomplished.
further that this action involves an         Bulletin 340–76–036, dated December 8,                 (f) The installation of the mechanical flight
emergency regulation under DOT               1995; or on which a control quadrant in the         idle stop shall be done in accordance with
Regulatory Policies and Procedures (44       flight compartment has been installed in            Saab Service Bulletin 340–76–034, dated
FR 11034, February 26, 1979). If it is       accordance with Saab Service Bulletin 340–          January 4, 1995. The installation and
determined that this emergency               76–037, dated December 8, 1995: Within 7            activation of the automatic flight idle stop
regulation otherwise would be                days after the effective date of this AD, install   system shall be done in accordance with
                                             a mechanical flight idle stop on the control        Saab Service Bulletin 340–76–032, Revision
significant under DOT Regulatory                                                                 2, dated December 8, 1995; or Saab Service
                                             quadrant in the flight compartment in
Policies and Procedures, a final             accordance with Saab Service Bulletin 340–          Bulletin 340–76–032, Revision 3, dated
regulatory evaluation will be prepared       76–034, dated January 4, 1995, and                  March 25, 1996. The reactivation of the
and placed in the Rules Docket. A copy       accomplish the requirements of paragraph (b)        system shall be done in accordance with
of it, if filed, may be obtained from the    of this AD.                                         Saab Service Bulletin 340–76–038, dated
42776        Federal Register / Vol. 61, No. 161 / Monday, August 19, 1996 / Rules and Regulations

December 8, 1995. This incorporation by          Docket, 1601 Lind Avenue, SW.,                that the subject modification may cause
reference was approved by the Director of the    Renton, Washington; or at the FAA, Los        a reduction in the reliability of the GCU,
Federal Register in accordance with 5 U.S.C.     Angeles Aircraft Certification Office,        which may lead to increased removals
552(a) and 1 CFR part 51. Copies may be          Transport Airplane Directorate, 3960          of the GCU; and may cause an increase
obtained from SAAB Aircraft AB, SAAB
Aircraft Product Support, S–581.88,
                                                 Paramount Boulevard, Lakewood,                in the BTR lockouts. However, the FAA
      ¨
Linkoping, Sweden. Copies may be inspected       California; or at the Office of the Federal   has determined that the GCU’s have a
at the FAA, Transport Airplane Directorate,      Register, 800 North Capitol Street, NW.,      low failure rate, since the overfrequency
1601 Lind Avenue, SW., Renton,                   suite 700, Washington, DC.                    protection circuit contains a minimum
Washington; or at the Office of the Federal      FOR FURTHER INFORMATION CONTACT:              of parts; therefore, the reduction in the
Register, 800 North Capitol Street, NW., suite   Natalie Phan-Tran, Aerospace Engineer,        reliability of the GCU will be minimal.
700, Washington, DC.                             Systems and Equipment Branch, ANM–            In addition, the FAA recognizes that the
   (g) This amendment becomes effective on                                                     BTR lockouts may be a nuisance;
September 3, 1996.
                                                 130L, FAA, Los Angeles Aircraft
                                                 Certification Office, 3960 Paramount          however, the FAA finds that such
   Issued in Renton, Washington, on August                                                     lockouts will not adversely affect the
7, 1996.
                                                 Boulevard, Lakewood, California 90712;
                                                 telephone (310) 627–5343; fax (310)           safety of the fleet. Furthermore, the FAA
Darrell M. Pederson,                                                                           has evaluated the root cause of the CSD
                                                 627–5210.
Acting Manager, Transport Airplane                                                             failure and concluded that there are no
Directorate, Aircraft Certification Service.     SUPPLEMENTARY INFORMATION: A
                                                                                               assurances that could prevent the failure
[FR Doc. 96–20672 Filed 8–16–96; 8:45 am]
                                                 proposal to amend part 39 of the Federal
                                                                                               of the CSD. Therefore, the FAA finds
                                                 Aviation Regulations (14 CFR part 39) to
BILLING CODE 4910–13–P                                                                         that modification of the GCU’s is
                                                 include an airworthiness directive (AD)
                                                                                               necessary to provide overfrequency
                                                 that is applicable to certain McDonnell
                                                                                               protection as a result of failure of the
14 CFR Part 39                                   Douglas Model DC–10–10, –15, –30,
                                                                                               CSD. An overfrequency condition of a
                                                 –40, and KC–10A (military) series
[Docket No. 95–NM–177–AD; Amendment                                                            generator, if not corrected, could lead to
                                                 airplanes was published in the Federal
39–9717; AD 96–17–08]                                                                          the loss of all electrical power of the
                                                 Register on January 3, 1996 (61 FR 134).
                                                                                               airplane.
RIN 2120–AA64                                    That action proposed to require
                                                 modification of the AC generator control      Conclusion
Airworthiness Directives; McDonnell              units.                                          After careful review of the available
Douglas Model DC–10–10, –15, –30,                   Interested persons have been afforded      data, including the comments noted
–40, and KC–10A (Military) Series                an opportunity to participate in the          above, the FAA has determined that air
Airplanes                                        making of this amendment. Due                 safety and the public interest require the
                                                 consideration has been given to the           adoption of the rule as proposed.
AGENCY:  Federal Aviation
                                                 comments received.
Administration, DOT.                                                                           Cost Impact
ACTION: Final rule.                              Support for the Proposal
                                                                                                  There are approximately 419 Model
                                                   Three commenters support the                DC–10–10, –15, –30, –40, and KC–10A
SUMMARY:   This amendment adopts a
                                                 proposed rule.                                (military) series of the affected design in
new airworthiness directive (AD),
applicable to certain McDonnell                  Request Not to Adopt the Rule                 the worldwide fleet. The FAA estimates
Douglas Model DC–10–10, –15, –30,                                                              that 276 airplanes of U.S. registry will
                                                    One commenter requests that the            be affected by this AD, that it will take
–40, and KC–10A (military) series                proposed AD not be adopted as
airplanes, that requires modification of                                                       approximately 5 work hours per
                                                 proposed. The commenter states that the       airplane to accomplish the required
the AC generator control units. This             modification (i.e., addition of a circuit
amendment is prompted by reports of                                                            actions, and that the average labor rate
                                                 that will provide overfrequency               is $60 per work hour. Required parts
loss of electrical power from two                protection) proposed by the AD causes
generators and an engine that flamed                                                           will cost approximately $2,896 per
                                                 a significant reduction in the reliability    generator control unit; there are 4 units
out due to an overfrequency condition            of the generator control unit (GCU). The
of a generator. The actions specified by                                                       per airplane. Based on these figures, the
                                                 commenter notes that, following               cost impact of the AD on U.S. operators
this AD are intended to prevent an               accomplishment of the proposed
overfrequency condition of a generator,                                                        is estimated to be $3,279,984, or $11,884
                                                 modification, it has experienced an           per airplane.
which could lead to the loss of all              increase of GCU removals and bus tie
electrical power of the airplane.                                                                 The cost impact figure discussed
                                                 relay (BTR) lockouts on in-service            above is based on assumptions that no
DATES: Effective September 23, 1996.             airplanes. The commenter                      operator has yet accomplished any of
   The incorporation by reference of             acknowledges that the subject                 the requirements of this AD action, and
certain publications listed in the               modification may add a margin of              that no operator would accomplish
regulations is approved by the Director          operating safety to the electrical            those actions in the future if this AD
of the Federal Register as of September          generator system of Model DC–10 series        were not adopted.
23, 1996.                                        airplanes; however, the commenter
ADDRESSES: The service information               notes that the margin may be eliminated       Regulatory Impact
referenced in this AD may be obtained            with the reduction in the reliability of         The regulations adopted herein will
from McDonnell Douglas Corporation,              the GCU and increased BTR lockouts.           not have substantial direct effects on the
3855 Lakewood Boulevard, Long Beach,             Therefore, the commenter concludes            States, on the relationship between the
California 90846, Attention: Technical           that the FAA should investigate the root      national government and the States, or
Publications Business Administration,            cause of the failure of the constant          on the distribution of power and
Department C1–L51 (2–60). This                   speed drive (CSD).                            responsibilities among the various
information may be examined at the                  The FAA does not concur with the           levels of government. Therefore, in
Federal Aviation Administration (FAA),           commenters request that the proposal          accordance with Executive Order 12612,
Transport Airplane Directorate, Rules            not be adopted. The FAA acknowledges          it is determined that this final rule does
             Federal Register / Vol. 61, No. 161 / Monday, August 19, 1996 / Rules and Regulations                                  42777

not have sufficient federalism                       Compliance: Required as indicated, unless     ACTION:   Final rule.
implications to warrant the preparation           accomplished previously.
of a Federalism Assessment.                          To prevent an overfrequency condition of      SUMMARY:    This amendment adopts a
                                                  the generator, which could result in loss of     new airworthiness directive (AD),
   For the reasons discussed above, I             all electrical power of the airplane,
certify that this action (1) is not a                                                              applicable to certain Airbus Model
                                                  accomplish the following:                        A310 series airplanes, that requires
‘‘significant regulatory action’’ under              (a) Within 2 years after the effective date
Executive Order 12866; (2) is not a                                                                repetitive inspections to detect
                                                  of this AD, modify the AC generator control
‘‘significant rule’’ under DOT                    units (GCU) in accordance with McDonnell
                                                                                                   discrepancies of the slat universal joint
Regulatory Policies and Procedures (44            Douglas Service Bulletin DC10–24–111 RO1,        and steady bearing assemblies, and
FR 11034, February 26, 1979); and (3)             Revision 1, dated August 14, 1995.               replacement of any discrepant assembly
will not have a significant economic                 (b) An alternative method of compliance or    with a new, like assembly. This
impact, positive or negative, on a                adjustment of the compliance time that           amendment also requires replacement of
                                                  provides an acceptable level of safety may be    all slat universal joint and steady
substantial number of small entities              used if approved by the Manager, Los
under the criteria of the Regulatory                                                               bearing assemblies with improved
                                                  Angeles Aircraft Certification Office (ACO),     assemblies, which would terminate the
Flexibility Act. A final evaluation has           FAA, Transport Airplane Directorate.
been prepared for this action and it is                                                            repetitive inspections. This amendment
                                                  Operators shall submit their requests through
contained in the Rules Docket. A copy             an appropriate FAA Principal Maintenance
                                                                                                   is prompted by reports of broken or
of it may be obtained from the Rules              Inspector, who may add comments and then         missing inner races on the slat universal
Docket at the location provided under             send it to the Manager, Los Angeles ACO.         joint and steady bearing assemblies of
the caption ADDRESSES.                               Note 2: Information concerning the            the slat transmission system. The
                                                  existence of approved alternative methods of     actions specified by this AD are
List of Subjects in 14 CFR Part 39                compliance with this AD, if any, may be          intended to prevent cracking of the
                                                  obtained from the Los Angeles ACO.               inner race, which could cause it to break
  Air transportation, Aircraft, Aviation
                                                     (c) Special flight permits may be issued in   off and, consequently, allow the slat
safety, Incorporation by reference,
                                                  accordance with sections 21.197 and 21.199       universal joint and steady bearing
Safety.                                           of the Federal Aviation Regulations (14 CFR      assemblies to become worn; this
Adoption of the Amendment                         21.197 and 21.199) to operate the airplane to    situation could result in failure of the
                                                  a location where the requirements of this AD     shaft of the slat transmission system,
  Accordingly, pursuant to the                    can be accomplished.                             and subsequent uncommanded
authority delegated to me by the                     (d) The modification shall be done in
                                                  accordance with McDonnell Douglas Service
                                                                                                   movement of the associated slat.
Administrator, the Federal Aviation
Administration amends part 39 of the              Bulletin DC10–24–111 RO1, Revision 1,            DATES: Effective September 23, 1996.
Federal Aviation Regulations (14 CFR              dated August 14, 1995. This incorporation by        The incorporation by reference of
part 39) as follows:                              reference was approved by the Director of the    certain publications listed in the
                                                  Federal Register in accordance with 5 U.S.C.     regulations is approved by the Director
PART 39—AIRWORTHINESS                             552(a) and 1 CFR part 51. Copies may be          of the Federal Register as of September
                                                  obtained from McDonnell Douglas                  23, 1996.
DIRECTIVES                                        Corporation, 3855 Lakewood Boulevard,
                                                                                                   ADDRESSES: The service information
                                                  Long Beach, California 90846, Attention:
  1. The authority citation for part 39                                                            referenced in this AD may be obtained
                                                  Technical Publications Business
continues to read as follows:                     Administration, Department C1–L51 (2–60).        from Airbus Industrie, 1 Rond Point
  Authority: 49 U.S.C. 106(g), 40113, 44701.      Copies may be inspected at the FAA,              Maurice Bellonte, 31707 Blagnac Cedex,
                                                  Transport Airplane Directorate, 1601 Lind        France. This information may be
§ 39.13   [Amended]                               Avenue, SW., Renton, Washington; or at the       examined at the Federal Aviation
  2. Section 39.13 is amended by                  FAA, Los Angeles Aircraft Certification          Administration (FAA), Transport
adding the following new airworthiness            Office, Transport Airplane Directorate, 3960     Airplane Directorate, Rules Docket,
                                                  Paramount Boulevard, Lakewood, California;
directive:                                                                                         1601 Lind Avenue, SW., Renton,
                                                  or at the Office of the Federal Register, 800
96–17–08 McDonnell Douglas: Amendment             North Capitol Street, NW., suite 700,            Washington; or at the Office of the
     39–9717. Docket 95–NM–177–AD.                Washington, DC.                                  Federal Register, 800 North Capitol
   Applicability: Model DC–10–10, –15, –30,          (e) This amendment becomes effective on       Street, NW., suite 700, Washington, DC.
–40, and KC–10A (military) series airplanes,      September 23, 1996.                              FOR FURTHER INFORMATION CONTACT:
as listed in McDonnell Douglas Service               Issued in Renton, Washington, on August       Charles Huber, Aerospace Engineer,
Bulletin DC10–24–111 RO1, Revision 1,             9, 1996.                                         Standardization Branch, ANM–113,
dated August 14, 1995; certificated in any        Darrell M. Pederson,                             FAA, Transport Airplane Directorate,
category.                                                                                          1601 Lind Avenue, SW., Renton,
                                                  Acting Manager, Transport Airplane
   Note 1: This AD applies to each airplane       Directorate, Aircraft Certification Service.     Washington 98055–4056; telephone
identified in the preceding applicability                                                          (206) 227–2589; fax (206) 227–1149.
                                                  [FR Doc. 96–20873 Filed 8–16–96; 8:45 am]
provision, regardless of whether it has been
otherwise modified, altered, or repaired in       BILLING CODE 4910–13–P                           SUPPLEMENTARY INFORMATION: A
the area subject to the requirements of this                                                       proposal to amend part 39 of the Federal
AD. For airplanes that have been modified,                                                         Aviation Regulations (14 CFR part 39) to
altered, or repaired so that the performance      14 CFR Part 39                                   include an airworthiness directive (AD)
of the requirements of this AD is affected, the                                                    that is applicable to certain Airbus
                                                  [Docket No. 95–NM–241–AD; Amendment
owner/operator must request approval for an                                                        Model A310 series airplanes was
                                                  39–9715; AD 96–17–06]
alternative method of compliance in                                                                published in the Federal Register on
accordance with paragraph (b) of this AD.         RIN 2120–AA64                                    May 8, 1996 (61 FR 20762). That action
The request should include an assessment of
the effect of the modification, alteration, or
                                                                                                   proposed to require repetitive visual
                                                  Airworthiness Directives; Airbus Model
repair on the unsafe condition addressed by                                                        inspections to detect discrepancies of
                                                  A310 Series Airplanes
this AD; and, if the unsafe condition has not                                                      the slat universal joint and steady
been eliminated, the request should include       AGENCY:Federal Aviation                          bearing assemblies, and replacement of
specific proposed actions to address it.          Administration, DOT.                             any discrepant assembly with a new,
42778      Federal Register / Vol. 61, No. 161 / Monday, August 19, 1996 / Rules and Regulations

like assembly. That action also proposed     Regulatory Policies and Procedures (44             with Airbus Service Bulletin A310–27–2040,
to require replacement of all slat           FR 11034, February 26, 1979); and (3)              Revision 2, dated January 5, 1995.
universal joint and steady bearing           will not have a significant economic                  Note 2: Airbus Service Bulletin A310–27–
assemblies with new assemblies, which        impact, positive or negative, on a                 2040 inadvertently references LUCAS/
would constitute terminating action for      substantial number of small entities               LIEBHERR Service Bulletin 551A–27–6010 as
                                                                                                the appropriate source for accomplishing the
the repetitive inspection requirements.      under the criteria of the Regulatory               inspection. LUCAS/LIEBHERR Service
   Interested persons have been afforded     Flexibility Act. A final evaluation has            Bulletin 551A–27–610 is the appropriate
an opportunity to participate in the         been prepared for this action and it is            source of information.
making of this amendment. Due                contained in the Rules Docket. A copy                 (1) If no discrepancy is found, repeat the
consideration has been given to the two      of it may be obtained from the Rules               inspection thereafter at intervals not to
comments received.                           Docket at the location provided under              exceed 2,000 landings.
   Both commenters support the               the caption ADDRESSES.                                (2) If any discrepancy is detected and the
proposed rule.                                                                                  groove depth on the shaft is greater than or
                                             List of Subjects in 14 CFR Part 39                 equal to 1 mm (0.04 in.), prior to further
Conclusion                                     Air transportation, Aircraft, Aviation           flight, replace the discrepant bearing
  After careful review of the available      safety, Incorporation by reference,                assembly with a new, like assembly, in
data, including the comments noted           Safety.                                            accordance with the service bulletin. After
above, the FAA has determined that air                                                          replacement, repeat the visual inspection
safety and the public interest require the   Adoption of the Amendment                          thereafter at intervals not to exceed 2,000
                                                                                                landings.
adoption of the rule as proposed.              Accordingly, pursuant to the
                                                                                                   (3) If any discrepancy is detected and the
                                             authority delegated to me by the                   groove depth on the shaft is less than 1 mm
Cost Impact                                  Administrator, the Federal Aviation                (0.04 in.), prior to 50 landings after
   The FAA estimates that 26 Airbus          Administration amends part 39 of the               accomplishing the initial inspection, replace
Model A310 series airplanes of U.S.          Federal Aviation Regulations (14 CFR               the discrepant bearing assembly with a new,
registry will be affected by this AD.        part 39) as follows:                               like assembly, in accordance with the service
   It will take approximately 5 work                                                            bulletin. After the replacement, repeat the
hours per airplane to accomplish the         PART 39—AIRWORTHINESS                              visual inspection thereafter at intervals not to
required inspection, at an average labor     DIRECTIVES                                         exceed 2,000 landings.
rate of $60 per work hour. Based on                                                                (b) Within 5 years after the effective date
                                               1. The authority citation for part 39            of this AD, replace the slat universal joint
these figures, the cost impact of the        continues to read as follows:                      and steady bearing assemblies with new
required inspection on U.S. operators is                                                        assemblies, in accordance with LUCAS/
estimated to be $7,800, or $300 per            Authority: 49 U.S.C. 106(g), 40113, 44701.
                                                                                                LIEBHERR Service Bulletin 523–27–M523–1,
airplane, per inspection.                    39.13   [Amended]                                  dated April 25, 1986. Accomplishment of the
   It will take approximately 9 work                                                            replacement constitutes terminating action
                                               2. Section 39.13 is amended by
hours per airplane to accomplish the                                                            for the repetitive inspection requirements of
                                             adding the following new airworthiness
required replacement, at an average                                                             paragraph (a) of this AD.
                                             directive:                                            (c) An alternative method of compliance or
labor rate of $60 per work hour.
Required parts will cost approximately       96–17–06 Airbus Industrie: Amendment 39–           adjustment of the compliance time that
$48,108 per airplane. Based on these             9715. Docket 95–NM–241–AD.                     provides an acceptable level of safety may be
                                               Applicability: Model A310 series airplanes,      used if approved by the Manager,
figures, the cost impact of the required
                                             on which Airbus Modification 6022 or 6485          Standardization Branch, ANM–113, FAA,
replacement on U.S. operators is                                                                Transport Airplane Directorate. Operators
                                             has not been installed; certificated in any
estimated to be $1,264,848, or $48,648       category.                                          shall submit their requests through an
per airplane.                                                                                   appropriate FAA Principal Maintenance
   The cost impact figures discussed            Note 1: This AD applies to each airplane        Inspector, who may add comments and then
above are based on assumptions that no       identified in the preceding applicability          send it to the Manager, Standardization
                                             provision, regardless of whether it has been       Branch, ANM–113.
operator has yet accomplished any of         otherwise modified, altered, or repaired in
the requirements of this AD action, and      the area subject to the requirements of this          Note 3: Information concerning the
that no operator would accomplish            AD. For airplanes that have been modified,         existence of approved alternative methods of
those actions in the future if this AD       altered, or repaired so that the performance       compliance with this AD, if any, may be
were not adopted.                            of the requirements of this AD is affected, the    obtained from the Standardization Branch,
                                             owner/operator must request approval for an        ANM–113.
Regulatory Impact                            alternative method of compliance in                   (d) Special flight permits may be issued in
   The regulations adopted herein will       accordance with paragraph (c) of this AD.          accordance with sections 21.197 and 21.199
not have substantial direct effects on the   The request should include an assessment of        of the Federal Aviation Regulations (14 CFR
                                             the effect of the modification, alteration, or     21.197 and 21.199) to operate the airplane to
States, on the relationship between the
                                             repair on the unsafe condition addressed by        a location where the requirements of this AD
national government and the States, or       this AD; and, if the unsafe condition has not      can be accomplished.
on the distribution of power and             been eliminated, the request should include           (e) The actions shall be done in accordance
responsibilities among the various           specific proposed actions to address it.           with Airbus Service Bulletin A310–27–2040,
levels of government. Therefore, in             Compliance: Required as indicated, unless       Revision 2, dated January 5, 1995, and
accordance with Executive Order 12612,       accomplished previously.                           LUCAS/LIEBHERR Service Bulletin 523–27–
it is determined that this final rule does      To prevent failure of the shaft of the slat     M523–1, dated April 25, 1986. This
not have sufficient federalism               transmission system, and subsequent                incorporation by reference was approved by
implications to warrant the preparation      uncommanded movement of the associated             the Director of the Federal Register in
                                             slat, accomplish the following:                    accordance with 5 U.S.C. 552(a) and 1 CFR
of a Federalism Assessment.
                                                (a) Prior to the accumulation of 2,000          part 51. Copies may be obtained from Airbus
   For the reasons discussed above, I        landings or 500 flight hours after the effective   Industrie, 1 Rond Point Maurice Bellonte,
certify that this action (1) is not a        date of this AD, whichever occurs later,           31707 Blagnac Cedex, France. Copies may be
‘‘significant regulatory action’’ under      perform a visual inspection to detect              inspected at the FAA, Transport Airplane
Executive Order 12866; (2) is not a          discrepancies of the slat universal joint and      Directorate, 1601 Lind Avenue, SW., Renton,
‘‘significant rule’’ under DOT               steady bearing assemblies, in accordance           Washington; or at the Office of the Federal
             Federal Register / Vol. 61, No. 161 / Monday, August 19, 1996 / Rules and Regulations                             42779

Register, 800 North Capitol Street, NW., suite   Angeles Aircraft Certification Office       may approve requests for adjustments to
700, Washington, DC.                             (ACO), 3960 Paramount Boulevard,            the compliance time if data are
   (f) This amendment becomes effective on       Lakewood, California; or at the Office of   submitted to substantiate that an
September 23, 1996.                              the Federal Register, 800 North Capitol     adjustment would provide an acceptable
   Issued in Renton, Washington, on August       Street, NW., suite 700, Washington, DC.
9, 1996.
                                                                                             level of safety.
                                                 FOR FURTHER INFORMATION CONTACT:
Darrell M. Pederson,
                                                 Mike Lee, Aerospace Engineer, Airframe      Conclusion
Acting Manager, Transport Airplane               Branch, ANM–120L, FAA, Los Angeles
Directorate, Aircraft Certification Service.                                                   After careful review of the available
                                                 Aircraft Certification Office, 3960         data, including the comment noted
[FR Doc. 96–21871 Filed 8–16–96; 8:45 am]        Paramount Boulevard, Lakewood,
BILLING CODE 4910–13–P
                                                                                             above, the FAA has determined that air
                                                 California 90712; telephone (310) 627–      safety and the public interest require the
                                                 5325; fax (310) 627–5210.                   adoption of the rule as proposed.
                                                 SUPPLEMENTARY INFORMATION: A
14 CFR Part 39
                                                 proposal to amend part 39 of the Federal    Cost Impact
[Docket No. 95–NM–115–AD; Amendment              Aviation Regulations (14 CFR part 39) to
39–9716; AD 96–17–07]                                                                           There are approximately 148
                                                 include an airworthiness directive (AD)
                                                 that is applicable to certain McDonnell     McDonnell Douglas Model DC–8 series
RIN 2120–AA64
                                                 Douglas Model DC–8 series airplanes         airplanes of the affected design in the
Airworthiness Directives; McDonnell              was published in the Federal Register       worldwide fleet. The FAA estimates that
Douglas Model DC–8 Series Airplanes              as a supplemental notice of proposed        97 airplanes of U.S. registry will be
Equipped With Swivel-Type Bogie                  rulemaking on November 1, 1995 (60 FR       affected by this AD, that it will take
Beams on the Main Landing Gears                  55496). That action proposed to require     approximately 83 work hours per
                                                 a magnetic particle inspection to detect    airplane to accomplish the required
AGENCY:  Federal Aviation                                                                    actions, and that the average labor rate
                                                 cracking of the swivel bogie beam lugs,
Administration, DOT.                                                                         is $60 per work hour. Based on these
                                                 and repair, if necessary. For airplanes
ACTION: Final rule.                              on which no cracking is found during        figures, the cost impact of the AD on
                                                 the magnetic particle inspection, that      U.S. operators is estimated to be
SUMMARY: This amendment adopts a
                                                 action also proposed to require a visual    $483,060, or $4,980 per airplane.
new airworthiness directive (AD),
                                                 inspection to detect corrosion of the          The cost impact figure discussed
applicable to certain McDonnell
                                                 swivel pin lug surfaces and bores, and      above is based on assumptions that no
Douglas Model DC–8 series airplanes,
                                                 modification of the forward bogie           operator has yet accomplished any of
that requires an inspection to detect
                                                 beams.                                      the requirements of this AD action, and
cracking of the swivel bogie beam lugs,
                                                   Interested persons have been afforded     that no operator would accomplish
and repair, if necessary. For airplanes
                                                 an opportunity to participate in the        those actions in the future if this AD
on which no cracking is found, this
                                                 making of this amendment. Due               were not adopted.
amendment also requires an inspection
                                                 consideration has been given to the
to detect corrosion of the swivel pin lug
                                                 single comment received.                    Regulatory Impact
surfaces and bores, and modification of
the forward bogie beams. This                    Request To Revise Proposed                     The regulations adopted herein will
amendment is prompted by reports                 Compliance Times                            not have substantial direct effects on the
indicating that swivel pin lugs of the              The commenter states that the actions    States, on the relationship between the
main landing gear (MLG) have failed              described in McDonnell Douglas S.B.         national government and the States, or
due to cracks resulting from stress              32–182 (the service information             on the distribution of power and
corrosion. The actions specified by this         referenced in the proposed rule) should     responsibilities among the various
AD are intended to prevent such stress           be accomplished at gear overhaul.           levels of government. Therefore, in
corrosion, which could result in failure            The FAA infers that the commenter        accordance with Executive Order 12612,
of the swivel-type bogie beam of the             requests the compliance times be            it is determined that this final rule does
MLG; this condition could result in              revised to reflect the intervals for gear   not have sufficient federalism
collapse of the MLG during landing.              overhaul. The FAA does not concur that      implications to warrant the preparation
DATES: Effective September 23, 1996.             the compliance times need to be revised     of a Federalism Assessment.
   The incorporation by reference of             in this AD. In developing an appropriate
certain publications listed in the                                                              For the reasons discussed above, I
                                                 compliance time for this AD, the FAA
regulations is approved by the Director                                                      certify that this action (1) is not a
                                                 considered not only the manufacturer’s
of the Federal Register as of September          recommendation as to an appropriate         ‘‘significant regulatory action’’ under
23, 1996.                                        compliance time, but the degree of          Executive Order 12866; (2) is not a
ADDRESSES: The service information               urgency associated with addressing the      ‘‘significant rule’’ under DOT
referenced in this AD may be obtained            subject unsafe condition, and the           Regulatory Policies and Procedures (44
from McDonnell Douglas Corporation,              intervals for gear overhaul of the          FR 11034, February 26, 1979); and (3)
3855 Lakewood Boulevard, Long Beach,             majority of affected operators. In          will not have a significant economic
California 90846, Attention: Technical           addition, paragraph (a)(2) of the AD        impact, positive or negative, on a
Publications Business Administration,            provides a grace period for those           substantial number of small entities
Department C1–L51 (2–60). This                   operators that may have accomplished a      under the criteria of the Regulatory
information may be examined at the               gear overhaul just prior to the effective   Flexibility Act. A final evaluation has
Federal Aviation Administration (FAA),           date of this AD, or that may be required    been prepared for this action and it is
Transport Airplane Directorate, Rules            to accomplish such an overhaul soon         contained in the Rules Docket. A copy
Docket, 1601 Lind Avenue, SW.,                   after this AD becomes effective.            of it may be obtained from the Rules
Renton, Washington; or at the FAA,               However, under the provisions of            Docket at the location provided under
Transport Airplane Directorate, Los              paragraph (e) of the final rule, the FAA    the caption ADDRESSES.
42780        Federal Register / Vol. 61, No. 161 / Monday, August 19, 1996 / Rules and Regulations

List of Subjects in 14 CFR Part 39                    (b) If no cracking is detected during the               (iii) For Group II airplanes on which the
                                                   inspection required by paragraph (a) of this            forward bogie beam has not been modified
  Air transportation, Aircraft, Aviation           AD, prior to further flight, perform a visual           previously: Modify the forward bogie beam
safety, Incorporation by reference,                inspection to detect corrosion in the swivel            in accordance with the actions specified (for
Safety.                                            pin lug surfaces and bores, in accordance               Group II airplanes) as Condition 1 of the
                                                   with McDonnell Douglas DC–8 Service                     Accomplishment Instructions of the service
Adoption of the Amendment                          Bulletin 32–182, dated January 20, 1995; or             bulletin. If the dimensions of the reworked
  Accordingly, pursuant to the                     McDonnell Douglas Service Bulletin DC8–                 swivel pin lug exceed the limits specified in
authority delegated to me by the                   32–182 RO1, Revision 1, dated July 21, 1995,            Table I of the service bulletin, prior to further
                                                   or Revision 02, dated August 30, 1995.                  flight, repair in accordance with a method
Administrator, the Federal Aviation                                                                        approved by the Manager, Los Angeles ACO.
Administration amends part 39 of the                  Note 2: Particular attention should be paid
                                                   to the lubrication of the swivel pin lug and               (iv) For Group II airplanes on which the
Federal Aviation Regulations (14 CFR               the lower swivel pin bushing during regular             forward bogie beam has been modified
part 39) as follows:                               normal maintenance.                                     previously: Modify the forward bogie beam
                                                      (1) If no corrosion is detected, prior to            in accordance with the actions specified (for
PART 39—AIRWORTHINESS                                                                                      Group II airplanes) as Condition 2 of the
                                                   further flight, accomplish paragraph (b)(1)(i),
DIRECTIVES                                         (b)(1)(ii), (b)(1)(iii), or (b)(1)(iv) of this AD, as   Accomplishment Instructions of the service
                                                   applicable, in accordance with the service              bulletin. If the dimensions of the reworked
  1. The authority citation for part 39                                                                    swivel pin lug exceed the limits specified in
                                                   bulletin.
continues to read as follows:                         (i) For Group I airplanes on which the               Table I of the service bulletin, prior to further
                                                   forward bogie beam has not been modified                flight, repair in accordance with a method
  Authority: 49 U.S.C. 106(g), 40113, 44701.
                                                   previously: Modify the forward bogie beam               approved by the Manager, Los Angeles ACO.
§ 39.13   [Amended]                                in accordance with the actions specified (for              (c) If any cracking is detected during the
                                                   Group I airplanes) as Condition 1 of the                inspection required by paragraph (a) of this
  2. Section 39.13 is amended by                                                                           AD, prior to further flight, repair in
adding the following new airworthiness             Accomplishment Instructions of the service
                                                   bulletin.                                               accordance with a method approved by the
directive:                                            (ii) For Group I airplanes on which the              Manager, Los Angeles ACO.
96–17–07 McDonnell Douglas: Amendment              forward bogie beam has been modified                       (d) As of the effective date of this AD, no
      39–9716. Docket 95–NM–115–AD.                previously: Modify the forward bogie beam               forward bogie beam swivel pin lug shall be
                                                   in accordance with the actions specified (for           installed on any airplane, unless that swivel
   Applicability: Model DC–8 airplanes                                                                     pin lug has been modified in accordance
equipped with main landing gears having            Group I airplanes) as Condition 2 of the
                                                   Accomplishment Instructions of the service              with McDonnell Douglas DC–8 Service
swivel type bogie beams on which the swivel                                                                Bulletin 32–182, dated January 20, 1995; or
pin lugs have not been nickel plated,              bulletin.
                                                      (iii) For Group II airplanes on which the            McDonnell Douglas Service Bulletin DC8–
certificated in any category.                                                                              32–182 RO1, Revision 1, dated July 21, 1995,
                                                   forward bogie beam has not been modified
   Note 1: This AD applies to each airplane                                                                or Revision 02, dated August 30, 1995.
                                                   previously: Modify the forward bogie beam
identified in the preceding applicability                                                                     (e) An alternative method of compliance or
                                                   in accordance with the actions specified (for
provision, regardless of whether it has been                                                               adjustment of the compliance time that
                                                   Group II airplanes) as Condition 1 of the
modified, altered, or repaired in the area                                                                 provides an acceptable level of safety may be
                                                   Accomplishment Instructions of the service
subject to the requirements of this AD. For                                                                used if approved by the Manager, Los
                                                   bulletin.
airplanes that have been modified, altered, or                                                             Angeles ACO. Operators shall submit their
                                                      (iv) For Group II airplanes on which the
repaired so that the performance of the            forward bogie beam has been modified                    requests through an appropriate FAA
requirements of this AD is affected, the           previously: Modify the forward bogie beam               Principal Maintenance Inspector, who may
owner/operator must request approval for an        in accordance with the actions specified (for           add comments and then send it to the
alternative method of compliance in                Group II airplanes) as Condition 2 of the               Manager, Los Angeles ACO.
accordance with paragraph (e) of this AD.          Accomplishment Instructions of the service                 Note 3: Information concerning the
The request should include an assessment of        bulletin.                                               existence of approved alternative methods of
the effect of the modification, alteration, or        (2) If any corrosion is detected, prior to           compliance with this AD, if any, may be
repair on the unsafe condition addressed by        further flight, accomplish paragraph (b)(2)(i),         obtained from the Los Angeles ACO.
this AD; and, if the unsafe condition has not      (b)(2)(ii), (b)(2)(iii), or (b)(2)(iv), as                 (f) Special flight permits may be issued in
been eliminated, the request should include        applicable, in accordance with the service              accordance with sections 21.197 and 21.199
specific proposed actions to address it.           bulletin.                                               of the Federal Aviation Regulations (14 CFR
   Compliance: Required as indicated, unless          (i) For Group I airplanes on which the               21.197 and 21.199) to operate the airplane to
accomplished previously.                           forward bogie beam has not been modified                a location where the requirements of this AD
   To prevent failure of the swivel-type bogie     previously: Modify the forward bogie beam               can be accomplished.
beam of the main landing gear (MLG) due to         in accordance with the actions specified (for              (g) The inspections and modification shall
stress corrosion, which could result in            Group I airplanes) as Condition 1 of the                be done in accordance with McDonnell
collapse of the MLG during landing,                Accomplishment Instructions of the service              Douglas DC–8 Service Bulletin 32–182, dated
accomplish the following:                          bulletin. If the dimensions of the reworked             January 20, 1995; McDonnell Douglas DC–8
   (a) Perform a one-time magnetic particle        swivel pin lug exceed the limits specified in           Service Bulletin DC8–32–182 RO1, Revision
inspection to detect cracking of the swivel        Table I of the service bulletin, prior to further       1, dated July 21, 1995; or McDonnell Douglas
bogie beam lugs, in accordance with                flight, repair in accordance with a method              DC–8 Service Bulletin DC8–32–182 RO2,
McDonnell Douglas DC–8 Service Bulletin            approved by the Manager, Los Angeles                    Revision 02, dated August 30, 1995. This
32–182, dated January 20, 1995; McDonnell          Aircraft Certification Office (ACO), FAA,               incorporation by reference was approved by
Douglas Service Bulletin DC8–32–182 RO1,           Transport Airplane Directorate.                         the Director of the Federal Register in
Revision 1, dated July 21, 1995, or Revision          (ii) For Group I airplanes on which the              accordance with 5 U.S.C. 552(a) and 1 CFR
02, dated August 30, 1995; at the later of the     forward bogie beam has been modified                    part 51. Copies may be obtained from
times specified in paragraphs (a)(1) and (a)(2)    previously: Modify the forward bogie beam               McDonnell Douglas Corporation, 3855
of this AD.                                        in accordance with the actions specified (for           Lakewood Boulevard, Long Beach, California
   (1) Prior to the accumulation of 11,600         Group I airplanes) as Condition 2 of the                90846, Attention: Technical Publications
total flight hours, or within 10 years since the   Accomplishment Instructions of the service              Business Administration, Department C1–
installation of the forward bogie beam of the      bulletin. If the dimensions of the reworked             L51 (2–60). Copies may be inspected at the
MLG, whichever occurs first.                       swivel pin lug exceed the limits specified in           FAA, Transport Airplane Directorate, 1601
   (2) Prior to the accumulation of 2,000 flight   Table I of the service bulletin, prior to further       Lind Avenue, SW., Renton, Washington; or at
hours, or 2 years after the effective date of      flight, repair in accordance with a method              the FAA, Los Angeles Aircraft Certification
this AD, whichever occurs first.                   approved by the Manager, Los Angeles ACO.               Office, Transport Airplane Directorate, 3960
             Federal Register / Vol. 61, No. 161 / Monday, August 19, 1996 / Rules and Regulations                              42781

Paramount Boulevard, Lakewood, California;      adcomments@mail.hq.faa.gov’’. All             following Serial Numbers: T50693,
or at the Office of the Federal Register, 800   comments must contain the Docket No.          T50823, T50827, R32926, R32960,
North Capitol Street, NW., suite 700,           in the subject line of the comment.           P66756, and replacement with
Washington, DC.                                                                               serviceable parts. The FAA determined
   (h) This amendment becomes effective on      FOR FURTHER INFORMATION CONTACT:
September 23, 1996.                             Robert E. Guyotte, Manager, Engine            this compliance time based on the
                                                Certification Branch, FAA, Engine and         potential severity of the aircraft hazard
   Issued in Renton, Washington, on August
                                                Propeller Directorate, 12 New England         in the event of a fan hub failure, in
9, 1996.
                                                Executive Park, Burlington, MA 01803–         conjunction with evidence of tie bolt
Darrell M. Pederson,
                                                5299; telephone (617) 238–7142, fax           hole surface anomalies during
Acting Manager, Transport Airplane                                                            manufacturing inspection.
Directorate, Aircraft Certification Service.    (617) 238–7199.
                                                                                                 Since it was found that immediate
[FR Doc. 96–20870 Filed 8–16–96; 8:45 am]       SUPPLEMENTARY INFORMATION: On July
                                                                                              corrective action was required, notice
                                                16, 1996, the Federal Aviation
BILLING CODE 4910–13–P                                                                        and opportunity for prior public
                                                Administration (FAA) issued priority
                                                                                              comment thereon were impracticable
                                                letter airworthiness directive (AD) 96–
                                                                                              and contrary to the public interest, and
14 CFR Part 39                                  15–06, applicable to Pratt & Whitney
                                                                                              good cause existed to make the AD
                                                (PW) JT8D–200 series engines, which
[Docket No. 96–ANE–19; Amendment 39–                                                          effective immediately by individual
                                                requires, prior to further flight, removal
9714; AD 96–15–06]                                                                            letters issued on July 16, 1996, to all
                                                from service all affected fan hubs,           known U.S. owners and operators of PW
RIN 2120–AA64                                   identified by serial number, and              JT8D–200 series turbofan engines. These
                                                replacement with serviceable parts. That      conditions still exist, and the AD is
Airworthiness Directives; Pratt &               action was prompted by a report of an         hereby published in the Federal
Whitney JT8D–200 Series Turbofan                accident involving an uncontained             Register as an amendment to Section
Engines                                         failure of a stage 1 fan hub. A fan hub       39.13 of part 39 of the Federal Aviation
                                                failure poses a serious threat to safety of   Regulations (14 CFR part 39) to make it
AGENCY:  Federal Aviation                       flight due to the possibility of high
Administration, DOT.                                                                          effective to all persons.
                                                energy engine fragments penetrating the
ACTION: Final rule, request for                 aircraft fuselage. The reported fan hub       Comments Invited
comments.                                       failure resulted from a fatigue crack that       Although this action is in the form of
                                                originated in a tie bolt hole. The fatigue    a final rule that involves requirements
SUMMARY: This document publishes in
                                                crack initiated from mechanical surface       affecting flight safety and, thus, was not
the Federal Register an amendment
                                                damage produced during machining of           preceded by notice and an opportunity
adopting Airworthiness Directive (AD)
                                                the tie bolt holes, and propagated in a       for public comment, comments are
96–15–06 that was sent previously to all
                                                low cycle fatigue mode due to normal          invited on this rule. Interested persons
known U.S. owners and operators of
                                                engine start-stop cycles. The                 are invited to comment on this rule by
Pratt & Whitney (PW) JT8D–200 series
                                                manufacturing records indicate that a         submitting such written data, views, or
turbofan engines by individual letters.
                                                surface anomaly was observed in a tie         arguments as they may desire.
This AD requires, prior to further flight,
                                                bolt hole during the Blue Etch Anodize        Communications should identify the
removal from service all affected fan
                                                inspection which was determined to be         Rules Docket number and be submitted
hubs, identified by serial number, and
                                                acceptable. The manufacturing records         in triplicate to the address specified
replacement with serviceable parts. This
                                                indicate that six other hubs with similar     under the caption ADDRESSES. All
amendment is prompted by a report of
                                                anomalies in the tie bolt holes were          communications received on or before
an accident involving an uncontained
                                                installed on engines in revenue service.      the closing date for comments will be
failure of a stage 1 fan hub. The actions
                                                The FAA has determined that all hubs          considered, and this rule may be
specified by this AD are intended to
                                                that exhibited surface anomalies during       amended in light of the comments
prevent the initiation and propagation
                                                inspection of the type observed on the        received. Factual information that
of a fatigue crack, fracture of the fan
                                                accident hub are not acceptable and           supports the commenter’s ideas and
hub, uncontained engine failure, and
                                                must be removed from service, and             suggestions is extremely helpful in
damage to the aircraft.
                                                replaced with a serviceable part prior to     evaluating the effectiveness of the AD
DATES: Effective September 3, 1996, to          further flight. This condition, if not        action and determining whether
all persons except those persons to             corrected, could result in the initiation     additional rulemaking action would be
whom it was made immediately                    and propagation of a fatigue crack,           needed.
effective by priority letter AD 96–15–06,       fracture of the fan hub, uncontained             Comments are specifically invited on
issued on July 16, 1996, which                  engine failure, and damage to the             the overall regulatory, economic,
contained the requirements of this              aircraft.                                     environmental, and energy aspects of
amendment.                                         The FAA is continuing the                  the rule that might suggest a need to
   Comments for inclusion in the Rules          investigation and based on investigative      modify the rule. All comments
Docket must be received on or before            findings, further rulemaking action may       submitted will be available, both before
October 18, 1996.                               be required.                                  and after the closing date for comments,
ADDRESSES: Submit comments in                      Since the unsafe condition described       in the Rules Docket for examination by
triplicate to the Federal Aviation              is likely to exist or develop on other        interested persons. A report that
Administration (FAA), New England               engines of the same type design, the          summarizes each FAA-public contact
Region, Office of the Assistant Chief           FAA issued priority letter AD 96–15–06        concerned with the substance of this AD
Counsel, Attention: Rules Docket No.            to prevent fracture of the fan hub,           will be filed in the Rules Docket.
96–ANE–19, 12 New England Executive             uncontained engine failure, and damage           Commenters wishing the FAA to
Park, Burlington, MA 01803–5299.                to the aircraft. The AD requires, prior to    acknowledge receipt of their comments
Comments may also be submitted to the           further flight, removal from service all      submitted in response to this notice
Rules Docket by using the following             affected fan hubs, Part Number (P/N)          must submit a self-addressed, stamped
Internet address: ‘‘epd-                        5000501–01, identified by any of the          postcard on which the following
42782        Federal Register / Vol. 61, No. 161 / Monday, August 19, 1996 / Rules and Regulations

statement is made: ‘‘Comments to                    Note: This airworthiness directive (AD)       SUMMARY:     This amendment adopts a
Docket Number 96–ANE–19.’’ The                   applies to each engine identified in the         new airworthiness directive (AD) that is
postcard will be date stamped and                preceding applicability provision, regardless    applicable to AlliedSignal Inc. (formerly
returned to the commenter.                       of whether it has been modified, altered, or     Textron Lycoming) Model T5313B
                                                 repaired in the area subject to the
   The regulations adopted herein will                                                            turboshaft engines. This action
                                                 requirements of this AD. For engines that
not have substantial direct effects on the       have been modified, altered, or repaired so      supersedes priority letter AD 96–15–07
States, on the relationship between the          that the performance of the requirements of      that currently requires, prior to further
national government and the States, or           this AD is affected, the owner/operator must     flight, removal from service of all
on the distribution of power and                 request approval for an alternative method of    suspect second stage power turbine
responsibilities among the various               compliance in accordance with paragraph (b)      disks, identified by serial number, and
levels of government. Therefore, in              of this AD. The request should include an        replacement with serviceable parts. This
accordance with Executive Order 12612,           assessment of the effect of the modification,    action corrects an incorrect second stage
it is determined that this final rule does       alteration, or repair on the unsafe condition    power turbine disk serial number. This
                                                 addressed by this AD; and, if the unsafe         amendment is prompted by report of a
not have sufficient federalism
                                                 condition has not been eliminated, the
implications to warrant the preparation          request should include specific proposed
                                                                                                  typographical error in the serial number
of a Federalism Assessment.                      actions to address it.                           listing. The actions specified by this AD
   The FAA has determined that this                                                               are intended to prevent possible failure
                                                    Compliance: Required as indicated, unless
regulation is an emergency regulation            accomplished previously.                         of a second stage power turbine disk,
that must be issued immediately to                  To prevent the initiation and propagation     uncontained engine failure, and damage
correct an unsafe condition in aircraft,         of a fatigue crack, fracture of the fan hub,     to aircraft.
and is not a ‘‘significant regulatory            uncontained engine failure, and damage to        DATES: Effective September 9, 1996.
action’’ under Executive Order 12866. It         the aircraft, accomplish the following:             Comments for inclusion in the Rules
has been determined further that this               (a) Prior to further flight, remove from      Docket must be received on or before
action involves an emergency regulation          service all affected first stage fan hubs, P/N   October 18, 1996.
under DOT Regulatory Policies and                5000501–01, identified by Serial Numbers
                                                                                                  ADDRESSES: Submit comments in
                                                 listed in the applicability paragraph of this
Procedures (44 FR 11034, February 26,                                                             triplicate to the Federal Aviation
                                                 AD, and replace with serviceable parts.
1979). If it is determined that this                (b) An alternative method of compliance or    Administration (FAA), New England
emergency regulation otherwise would             adjustment of compliance time that provides      Region, Office of the Assistant Chief
be significant under DOT Regulatory              an acceptable level of safety may be used if     Counsel, Attention: Rules Docket No.
Policies and Procedures, a final                 approved by the Manager, Engine                  96–ANE–21, 12 New England Executive
regulatory evaluation will be prepared           Certification Office. The request should be      Park, Burlington, MA 01803–5299.
and placed in the Rules Docket. A copy           forwarded through an appropriate FAA             Comments may also be submitted to the
of it, if filed, may be obtained from the        Principal Maintenance Inspector, who may         Rules Docket by using the following
Rules Docket at the location provided            add comments and then send it to the
                                                 Manager, Engine Certification Office.
                                                                                                  Internet address: ‘‘epd-
under the caption ADDRESSES.                                                                      adcomments@mail.hq.faa.gov’’. All
                                                    Note: Information concerning the existence
List of Subjects in 14 CFR Part 39               of approved alternative methods of
                                                                                                  comments must contain the Docket No.
                                                 compliance with this airworthiness directive,    in the subject line of the comment.
  Air transportation, Aircraft, Aviation                                                          FOR FURTHER INFORMATION CONTACT:
                                                 if any, may be obtained from the Engine
safety, Safety.                                  Certification Office.                            Eugene Triozzi, Aerospace Engineer,
Adoption of the Amendment                           (c) This amendment becomes effective          Engine Certification Office, FAA, Engine
  Accordingly, pursuant to the                   September 3, 1996, to all persons except         and Propeller Directorate, 12 New
                                                 those persons to whom it was made                England Executive Park, Burlington, MA
authority delegated to me by the                 immediately effective by priority letter AD
Administrator, the Federal Aviation                                                               01803–5299; telephone (617) 238–7148,
                                                 96–15–06, issued July 16, 1996, which            fax (617) 238–7199.
Administration amends part 39 of the             contained the requirements of this
Federal Aviation Regulations (14 CFR                                                              SUPPLEMENTARY INFORMATION: On July
                                                 amendment.
part 39) as follows:                                                                              16, 1996, the Federal Aviation
                                                    Issued in Burlington, Massachusetts, on
                                                 August 7, 1996.
                                                                                                  Administration (FAA) issued priority
PART 39—AIRWORTHINESS                                                                             letter airworthiness directive (AD) 96–
                                                 Jay J. Pardee,
DIRECTIVES                                                                                        15–07, applicable to AlliedSignal Inc.
                                                 Manager, Engine and Propeller Directorate,       (formerly Textron Lycoming) Model
  1. The authority citation for part 39          Aircraft Certification Service.
                                                                                                  T5313B turboshaft engines, which
continues to read as follows:                    [FR Doc. 96–21033 Filed 8–16–96; 8:45 am]        requires prior to further flight, removal
  Authority: 49 USC 106(g), 40113, 44701.        BILLING CODE 4910–13–P                           from service of all suspect second stage
                                                                                                  power turbine disks, identified by serial
§ 39.13   [Amended]
                                                                                                  number, and replacement with
  2. Section 39.13 is amended by                 14 CFR Part 39
                                                                                                  serviceable parts. That action was
adding the following new airworthiness                                                            prompted by a report that surplus
directive:                                       [Docket No. 96–ANE–21; Amendment 39–
                                                 9709, AD 96–17–01]                               military second stage power turbine
96–15–06 Pratt & Whitney: Amendment 39–                                                           disks, Part Number (P/N) 1–140–272–
     9714. Docket 96–ANE–19.                     RIN 2120–AA64                                    04, were used on civil aircraft. These
   Applicability: Pratt & Whitney (PW) JT8D–                                                      disks were manufactured by a military
200 series turbofan engines incorporating        Airworthiness Directives; AlliedSignal           parts supplier outside of a Federal
affected first stage fan hubs, Part Number (P/   Inc. Model T5313B Turboshaft Engines             Aviation Administration (FAA)-
N) 5000501–01, identified by any of the
following Serial Numbers: T50693, T50823,        AGENCY:  Federal Aviation                        approved manufacturing quality system.
T50827, R32926, R32960, P66756.                  Administration, DOT.                             When compared to parts manufactured
   These engines are installed on but not                                                         for civil use, parts manufactured for
                                                 ACTION: Final rule; request for
limited to McDonnell Douglas MD–80 series                                                         military service may undergo different
                                                 comments.
aircraft                                                                                          manufacturing procedures, and receive
            Federal Register / Vol. 61, No. 161 / Monday, August 19, 1996 / Rules and Regulations                                42783

different quality control inspections,       the rule that might suggest a need to          § 39.13   [Amended]
that are not approved by the FAA. After      modify the rule. All comments                    2. Section 39.13 is amended by
a review of some disk records, the FAA       submitted will be available, both before       adding the following new airworthiness
cannot determine whether the suspect         and after the closing date for comments,       directive:
disks conform with the FAA-approved          in the Rules Docket for examination by
type design for similar disks used in        interested persons. A report that              96–17–01 AlliedSignal Inc.: Amendment
civil aircraft engines. Therefore, the       summarizes each FAA-public contact                   39–9709. Docket No. 96–ANE–21.
suspect disks are currently not                                                                   Supersedes AD 96–15–07.
                                             concerned with the substance of this AD
airworthy for use in civil engines, and      will be filed in the Rules Docket.                Applicability: AlliedSignal Inc., (formerly
must be removed from service. Twelve            Commenters wishing the FAA to               Textron Lycoming) Model T5313B turboshaft
disks were subsequently installed in                                                        engines, incorporating suspect second stage
                                             acknowledge receipt of their comments
civil engines, four of these disks are                                                      power turbine disks, Part Number (P/N) 1–
                                             submitted in response to this notice
currently in service. Although the FAA                                                      140–272–04, identified by any of the
                                             must submit a self-addressed, stamped
has not received any reports of suspect                                                     following Serial Numbers: SC05903/32891–
                                             postcard on which the following
disk failures to date, it is unknown                                                        451, SC09442/32891–476, SC09685/32891–
                                             statement is made: ‘‘Comments to               623, SC09723/32891–654, SC09743/32891–
whether the suspect disks provide an         Docket Number 96–ANE–21.’’ The
acceptable level of safety for any period                                                   437, SC09759/32891–634, SC09755/32891–
                                             postcard will be date stamped and              637, SC09779/32891–682, SC09908/32891–
of operation. This condition, if not         returned to the commenter.
corrected, could result in possible                                                         657, SC10100/32891–649, SC10267/32891–
                                                The regulations adopted herein will         573, SC10269/32891–471.
failure of a second stage power turbine      not have substantial direct effects on the        These engines are installed on but not
disk, uncontained engine failure, and        States, on the relationship between the        limited to Bell Helicopter Textron 205A–1
damage to aircraft.                          national government and the States, or         series rotorcraft.
   Since the issuance of that priority
                                             on the distribution of power and                  Note: This airworthiness directive (AD)
letter AD, the FAA received a report of
                                             responsibilities among the various             applies to each engine identified in the
a typographical error in the serial
number listing.                              levels of government. Therefore, in            preceding applicability provision, regardless
   Since an unsafe condition has been        accordance with Executive Order 12612,         of whether it has been modified, altered, or
identified that is likely to exist or        it is determined that this final rule does     repaired in the area subject to the
develop on other engines of this same        not have sufficient federalism                 requirements of this AD. For engines that
type design, this AD supersedes priority     implications to warrant the preparation        have been modified, altered, or repaired so
letter AD 96–15–07 to correct an             of a Federalism Assessment.                    that the performance of the requirements of
                                                The FAA has determined that this            this AD is affected, the owner/operator must
incorrect second stage power turbine
                                             regulation is an emergency regulation          request approval for an alternative method of
disk serial number.
                                             that must be issued immediately to             compliance in accordance with paragraph (b)
   Since a situation exists that requires
                                             correct an unsafe condition in aircraft,       of this AD. The request should include an
the immediate adoption of this
                                             and is not a ‘‘significant regulatory          assessment of the effect of the modification,
regulation, it is found that notice and                                                     alteration, or repair on the unsafe condition
opportunity for prior public comment         action’’ under Executive Order 12866. It
                                                                                            addressed by this AD; and, if the unsafe
hereon are impracticable, and that good      has been determined further that this
                                                                                            condition has not been eliminated, the
cause exists for making this amendment       action involves an emergency regulation        request should include specific proposed
effective in less than 30 days.              under DOT Regulatory Policies and              actions to address it.
                                             Procedures (44 FR 11034, February 26,
Comments Invited                             1979). If it is determined that this              Compliance: Required as indicated, unless
   Although this action is in the form of                                                   accomplished previously.
                                             emergency regulation otherwise would
                                                                                               To prevent possible failure of a second
a final rule that involves requirements      be significant under DOT Regulatory            stage power turbine disk, uncontained engine
affecting flight safety and, thus, was not   Policies and Procedures, a final               failure, and damage to aircraft, accomplish
preceded by notice and an opportunity        regulatory evaluation will be prepared         the following:
for public comment, comments are             and placed in the Rules Docket. A copy            (a) Prior to further flight, remove from
invited on this rule. Interested persons     of it, if filed, may be obtained from the      service all suspect second stage power
are invited to comment on this rule by       Rules Docket at the location provided          turbine disks, P/N 1–140–272–04, identified
submitting such written data, views, or      under the caption ADDRESSES.                   by Serial Numbers listed in the applicability
arguments as they may desire.                                                               paragraph of this AD, and replace with
Communications should identify the           List of Subjects in 14 CFR Part 39
                                                                                            serviceable parts.
Rules Docket number and be submitted           Air transportation, Aircraft, Aviation          (b) An alternative method of compliance
in triplicate to the address specified       safety, Safety.                                that provides an acceptable level of safety
under the caption ADDRESSES. All                                                            may be used if approved by the Manager,
communications received on or before         Adoption of the Amendment                      Engine Certification Office. The request
the closing date for comments will be          Accordingly, pursuant to the                 should be forwarded through an appropriate
considered, and this rule may be             authority delegated to me by the               FAA Maintenance Inspector, who may add
amended in light of the comments             Administrator, the Federal Aviation            comments and then send it to the Manager,
received. Factual information that           Administration amends part 39 of the           Engine Certification Office.
supports the commenter’s ideas and           Federal Aviation Regulations (14 CFR              Note: Information concerning the existence
suggestions is extremely helpful in          part 39) as follows:                           of approved alternative methods of
evaluating the effectiveness of the AD                                                      compliance with this airworthiness directive,
action and determining whether               PART 39—AIRWORTHINESS                          if any, may be obtained from the Engine
additional rulemaking action would be        DIRECTIVES                                     Certification Office.
needed.                                                                                        (c) This amendment supersedes priority
   Comments are specifically invited on        1. The authority citation for part 39        letter AD 96–15–07, issued July 16, 1996.
the overall regulatory, economic,            continues to read as follows:                     (d) This amendment becomes effective on
environmental, and energy aspects of           Authority: 49 U.S.C. 106(g), 40113, 44701.   September 9, 1996.
42784        Federal Register / Vol. 61, No. 161 / Monday, August 19, 1996 / Rules and Regulations

  Issued in Burlington, Massachusetts, on    the surface in the vicinity of Dexter, ME.   determining whether additional
August 6, 1996.                              This action provides adequate                rulemaking action would be needed.
Jay J. Pardee,                               controlled airspace for those aircraft         Comments are specifically invited on
Manager, Engine and Propeller Directorate,   using the new GPS RWY 34 instrument          the overall regulatory, economic,
Aircraft Certification Service.              approach. Class E airspace designations      environmental, and energy aspects of
[FR Doc. 96–21034 Filed 8–16–96; 8:45 am]    for airspace areas extending upward          the rule that might suggest a need to
BILLING CODE 4910–13–P                       from 700 feet above the surface of the       modify the rule. All comments
                                             earth are published in paragraph 6005 of     submitted will be available, both before
                                             FAA Order 7400.9C, dated August 17,          and after the closing date for comments,
14 CFR Part 71                               1995, and effective September 16, 1995,      in the Rules Docket for examination by
[Airspace Docket No. 96–ANE–23]              which is incorporated by reference in 14     interested persons. A report that
                                             CFR 71.1. The Class E airspace               summarizes each FAA-public contact
Establishment of Class E Airspace;           designation listed in this document will     concerned with the substance of this
Dexter, ME                                   be published subsequently in this            action will be filed in the Rules Docket.
                                             Order.                                         Commenters wishing the FAA to
AGENCY: Federal Aviation                                                                  acknowledge receipt of their comments
Administration (FAA), DOT.                   The Direct Final Rule Procedure
                                                                                          submitted in response to this rule must
ACTION: Direct final rule; request for          The FAA anticipates that this             submit a self-addressed, stamped
comments.                                    regulation will not result in adverse or     postcard on which the following
                                             negative comment, and, therefore, issues     statement is made: ‘‘Comments to
SUMMARY: This action establishes a Class
                                             it as a direct final rule. The FAA has       Docket No. 96–ANE–23.’’ The postcard
E airspace area at Dexter, ME (K1B0) to
                                             determined that this regulation only         will be date stamped and returned to the
provide for adequate controlled airspace
                                             involves an established body of              commenter.
for those aircraft using the new GPS
                                             technical regulations for which frequent
RWY 34 Instrument Approach                                                                Agency Findings
                                             and routine amendments are necessary
Procedure to Dexter Regional Airport.
                                             to keep them operationally current.             The regulations adopted herein will
DATES: Effective 0901 UTC, October 10,       Unless a written adverse or negative         not have substantial direct effects on the
1996.                                        comment, or a written notice of intent       States, on the relationship between the
   Comments for inclusion in the Rules       to submit an adverse or negative             national government and the States, or
Docket must be received on or before         comment is received within the               on the distribution of power and
September 18, 1996.                          comment period, the regulation will          responsibilities among the various
ADDRESSES: Send comments on the              become effective on the date specified       levels of government. Therefore, in
proposal to: Manager, Operations             above. After the close of the comment        accordance with Executive Order 12612,
Branch, ANE–530, Federal Aviation            period, the FAA will publish a               it is determined that this final rule does
Administration, Docket No. 96–ANE–           document in the Federal Register             not have sufficient federalism
23, 12 New England Executive Park,           indicating that no adverse or negative       implications to warrant the preparation
Burlington, MA 01803–5299; telephone         comments were received and                   of a Federalism Assessment.
(617) 238–7530; fax (617) 238–7596.          confirming the date on which the final          The FAA has determined that this
Comments may also be submitted               rule will become effective. If the FAA       regulation is noncontroversial and
electronically to the following Internet     does receive, within the comment             unlikely to result in adverse or negative
address: ‘‘neairspace-                       period, an adverse or negative comment,      comments. For the reasons discussed in
comments@mail.hq.faa.gov’’ Comments          or written notice of intent to submit        the preamble, I certify that this
must indicate Docket No. 96–ANE–23 in        such a comment, a document                   regulation: (1) Is not a ‘‘significant
the subject line.                            withdrawing the direct final rule will be    regulatory action’’ under Executive
   The official docket file may be           published in the Federal Register, and       Order 12866; (2) is not a ‘‘significant
examined in the Office of the Assistant      a notice of proposed rulemaking may be       rule’’ under Department of
Chief Counsel, New England Region,           published with a new comment period.         Transportation (DOT) Regulatory
ANE–7, Room 401, 12 New England                                                           Policies and Procedures (44 FR 11034,
Executive Park, Burlington, MA 01803–        Comments Invited
                                                                                          February 26, 1979); and (3) does not
5299; telephone (617) 238–7050; fax             Although this action is in the form of    warrant preparation of a Regulatory
(617) 238–7055.                              a direct final rule, and was not preceded    Evaluation as these routine matters will
   An informal docket may be examined        by a notice of proposed rulemaking,          only affect air traffic procedures and air
during normal business hours in the Air      interested persons are invited to            navigation. It is certified that these
Traffic Division, Room 408, by               comment on this rule by submitting           proposed rules will not have significant
contacting the Manager, Operations           such written data, views, or arguments       economic impact on a substantial
Branch at the first address listed above.    as they may desire. Communications           number of small entities under the
FOR FURTHER INFORMATION CONTACT:             should identify the Rules Docket             criteria of the Regulatory Flexibility Act.
Joseph A. Bellabona, Operations Branch,      number and be submitted in triplicate to
ANE–530.6, 12 New England Executive                                                       List of Subjects in 14 CFR Part 71
                                             the address specified under the caption
Park, Burlington, MA 01803–5299;             ADDRESSES. All communications                 Airspace, Incorporation by reference,
telephone (617) 238–7536; fax (617)          received on or before the closing date       Navigation (air).
238–7596.                                    for comments will be considered, and
                                                                                          Adoption of the Amendment
SUPPLEMENTARY INFORMATION:                   this rule may be amended or withdrawn
   A new Standard Instrument Approach        in light of the comments received.             Accordingly, pursuant to the
Procedure to Dexter Regional Airport,        Factual information that supports the        authority delegated to me, the Federal
the GPS RWY 34 approach, requires the        commenter’s ideas and suggestions is         Aviation Administration amends part 71
establishment of Class E airspace            extremely helpful in evaluating the          of the Federal Aviation Regulations (14
extending upward from 700 feet above         effectiveness of this action and             CFR part 71) as follows:
             Federal Register / Vol. 61, No. 161 / Monday, August 19, 1996 / Rules and Regulations                           42785

PART 71—[AMENDED]                              comments@mail.hq.faa.gov’’ Comments         or written notice of intent to submit
                                               must indicate Docket No. 96–ANE–22 in       such a comment, a document
  1. The authority citation for part 71        the subject line.                           withdrawing the direct final rule will be
continues to read as follows:                     The official docket file may be          published in the Federal Register, and
  Authority: 49 U.S.C. 106(g), 40103, 40113,   examined in the Office of the Assistant     a notice of proposed rulemaking may be
40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959–    Chief Counsel, New England Region,          published with a new comment period.
1963 Comp., p.389.                             ANE–7, Room 401, 12 New England             Comments Invited
  2. The incorporation by reference in         Executive Park, Burlington, MA 01803–
14 CFR 71.1 of Federal Aviation                5299; telephone (617) 238–7050; fax            Although this action is in the form of
Administration Order 7400.9C, Airspace         (617) 238–7055.                             a direct final rule, and was not preceded
Designations and Reporting Points,                An informal docket may also be           by a notice of proposed rulemaking,
dated August 17, 1995, and effective           examined during normal business hours       interested persons are invited to
September 16, 1995, is amended as              in the Air Traffic Division, Room 408,      comment on this rule by submitting
follows:                                       by contacting the Manager, Operations       such written data, views, or arguments
                                               Branch at the first address listed above.   as they may desire. Communications
Paragraph 6005-Class E Airspace Areas                                                      should identify the Rules Docket
Extending Upward From 700 Feet or More         FOR FURTHER INFORMATION CONTACT:
                                                                                           number and be submitted in triplicate to
Above the Surface of the Earth                 Joseph A. Bellabona, Operations Branch,
                                                                                           the address specified under the caption
*     *     *      *     *                     ANE–530.6, 12 New England Executive
                                                                                           ADDRESSES. All communications
                                               Park, Burlington, MA 01803–5299;
ANE ME E5 Dexter, ME [New]                                                                 received on or before the closing date
                                               telephone (617) 238–7536; fax (617)
                                                                                           for comments will be considered, and
Dexter Regional Airport, ME                    238–7596.
  (Lat. 45°00′16′′N, long. 69°14′12′′W)                                                    this rule may be amended or withdrawn
                                               SUPPLEMENTARY INFORMATION: A New            in light of the comments received.
  That airspace extending upward from 700      Standard Instrument Approach
feet above the surface within a 6.3-mile                                                   Factual information that supports the
                                               Procedure to Oxford County Regional         commenter’s ideas and suggestions is
radius of Dexter Regional Airport.             Airport the GPS RWY 33 approach,            extremely helpful in evaluating the
*     *     *      *     *                     requires the establishment of Class E
  Issued in Burlington, MA, on August 12,                                                  effectiveness of this action and
                                               airspace extending upward from 700          determining whether additional
1996.                                          feet above the surface in the vicinity of
David J. Hurley,                                                                           rulemaking action would be needed.
                                               Oxford, ME. This action provides               Comments are specifically invited on
Manager, Air Traffic Division, New England     adequate controlled airspace for those      the overall regulatory, economic,
Region.                                        aircraft using the new GPS RWY 33           environmental, and energy aspects of
[FR Doc. 96–21093 Filed 8–16–96; 8:45 am]      instrument approach. Class E airspace       the rule that might suggest a need to
BILLING CODE 4910–13–M                         designations for airspace areas             modify the rule. All comments
                                               extending upward from 700 feet above        submitted will be available, both before
                                               the surface of the earth are published in   and after the closing date for comments,
14 CFR Part 71                                 paragraph 6005 of FAA Order 7400.9C         in the Rules Docket for examination by
[Airspace Docket No. 96–ANE–22]                dated August 17, 1995, and effective        interested persons. A report that
                                               September 16, 1995, which is                summarizes each FAA-public contact
Establishment of Class E Airspace;             incorporated by reference in 14 CFR         concerned with the substance of this
Oxford, ME                                     71.1 The Class E airspace designation       action will be filed in the Rules Docket.
                                               listed in this document will be                Commenters wishing the FAA to
AGENCY: Federal Aviation
                                               published subsequently in this Order.       acknowledge receipt of their comments
Administration (FAA), DOT.
                                               The Direct Final Rule Procedure             submitted in response to this rule must
ACTION: Direct final rule; request for
                                                                                           submit a self-addressed, stamped
comments.                                         The FAA anticipates that this            postcard on which the following
                                               regulation will not result in adverse or    statement is made: ‘‘Comments to
SUMMARY:   This action establishes a Class
                                               negative comment, and, therefore, issues    Docket No. 96–ANE–22.’’ The postcard
E airspace area at Oxford, ME (K81B) to
                                               it as a direct final rule. The FAA has      will be date stamped and returned to the
provide for adequate controlled airspace
                                               determined that this regulation only        commenter.
for those aircraft using the new GPS
                                               involves an established body of
RWY 33 Instrument Approach                                                                 Agency Findings
                                               technical regulations for which frequent
Procedure to Oxford County Regional
                                               and routine amendments are necessary           The regulations adopted herein will
Airport.
                                               to keep them operationally current.         not have substantial direct effects on the
DATES: Effective 0901 UTC, October 10,         Unless a written adverse or negative        States, on the relationship between the
1996.                                          comment, or a written notice of intent      national government and the States, or
  Comments for inclusion in the Rules          to submit an adverse or negative            on the distribution of power and
Docket must be received on or before           comment is received within the              responsibilities among the various
September 18, 1996.                            comment period, the regulation will         levels of government. Therefore, in
ADDRESSES: Send comments on the                become effective on the date specified      accordance with Executive Order 12612,
proposal to: Manager, Operations               above. After the close of the               it is determined that this final rule does
Branch, ANE–530, Federal Aviation              commentperiod, the FAA will publish a       not have sufficient federalism
Administration, Docket No. 96–ANE–             document in the Federal Register            implications to warrant the preparation
22, 12 New England Executive Park,             indicating that no adverse or negative      of a Federalism Assessment.
Burlington, MA 01803–5299; telephone           comments were received and                     The FAA has determined that this
(617) 238–7530; fax (617) 238–7596.            confirming the date on which the final      regulation is noncontroversial and
Comments may also be submitted                 rule will become effective. If the FAA      unlikely to result in adverse or negative
electronically to the following Internet       does receive, within the comment            comments. For the reasons discussed in
address: ‘‘neairspace-                         period, an adverse or negative comment,     the preamble, I certify that this
42786        Federal Register / Vol. 61, No. 161 / Monday, August 19, 1996 / Rules and Regulations

regulation (1) is not a ‘‘significant          SECURITIES AND EXCHANGE                          Amendments subject to Section V.A.3
regulatory action’’ under Executive            COMMISSION                                       This new compliance date will be
Order 12866; (2) is not a ‘‘significant                                                         published in the Federal Register in
rule’’ under Department of                     17 CFR Parts 230, 239, 270, and 274              connection with the adoption of the
Transportation (DOT) Regulatory                                                                 Technical Amendments.4 The
                                               [Release Nos. 33–7320; IC–22135; S7–34–          compliance date with respect to certain
Policies and Procedures (44 FR 11034,          93]
February 26, 1979); and (3) does not                                                            of the March Amendments adopted in
warrant preparation of a Regulatory                                                             61 FR 13956 is suspended effective
                                               RIN 3235–AE17
Evaluation as these routine matters will                                                        upon publication of this release in the
                                               Revisions to Rules Regulating Money              Federal Register because such
only affect air traffic procedures and air
                                               Market Funds                                     suspension ‘‘grants or recognizes an
navigation. It is certified that these
                                                                                                exemption or relieves a restriction.’’ 5
proposed rules will not have significant       AGENCY:  Securities and Exchange                   The Commission notes that Section
economic impact on a substantial               Commission.                                      V.C of the March Release set forth
number of small entities under the                                                              compliance dates for certain disclosure,
                                               ACTION: Final rule; suspension of
criteria of the Regulatory Flexibility Act.                                                     advertising and reporting requirements
                                               compliance date.
List of Subjects in 14 CFR Part 71                                                              for money market funds. These
                                               SUMMARY:    The Commission is                    requirements will not be affected by the
 Airspace, Incorporation by reference,         suspending the compliance date set               Technical Amendments. The
Navigation (air).                              forth in a final rule, which contains            Commission is not suspending the
                                               amendments to rules and forms that               compliance dates for these
Adoption of the Amendment                      govern money market funds.                       requirements, and all money market
  Accordingly, pursuant to the                 EFFECTIVE DATES: The effective date for          funds are required to comply with these
                                               the rule and form amendments                     requirements by the compliance dates
authority delegated to me, the Federal
                                               published on March 28, 1996 (61 FR               set forth in the March Release.
Aviation Administration amends part 71
of the Federal Aviation Regulations (14        13956) remains June 3, 1996. Effective             Dated: August 13, 1996.
CFR part 71) as follows:                       August 19, 1996, the compliance date               By the Commission.
                                               with respect to certain of the                   Margaret H. McFarland,
PART 71—[AMENDED]                              amendments adopted in that rule is               Deputy Secretary.
                                               suspended. The Commission will                   [FR Doc. 96–21056 Filed 8–16–96; 8:45 am]
  1. The authority citation for part 71        publish in the Federal Register a
                                                                                                BILLING CODE 8010–01–P
continues to read as follows:                  document notifying the public of a new
                                               compliance date.
  Authority: 49 U.S.C. 106(g), 40103, 40113,
40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959–    FOR FURTHER INFORMATION CONTACT:                 DEPARTMENT OF HOUSING AND
1963 Comp., p. 389.                            Marjorie S. Riegel, Senior Counsel,              URBAN DEVELOPMENT
                                               Office of Chief Counsel (202) 942–0727,
  2. The incorporation by reference in         Division of Investment Management,               24 CFR Parts 203 and 221
14 CFR 71.1 of Federal Aviation                Securities and Exchange Commission,
                                                                                                [Docket No. FR–3899–C–02]
Administration Order 7400.9C, Airspace         450 Fifth Street, NW., Washington, DC
Designations and Reporting Points,             20549.                                           RIN 2502–AG55
dated August 17, 1995, and effective           SUPPLEMENTARY INFORMATION: The
                                               Commission is suspending the                     Office of the Assistant Secretary for
September 16, 1995, is amended as
                                               compliance date in connection with               Housing—Federal Housing
follows:
                                               amendments to rules 2a–7, 2a41–1,                Commissioner; Single Family
Paragraph 6005—Class E Airspace Areas
                                               12d–3 and 31a–1 [17 CFR 270.2a–7,                Mortgage Insurance Premium;
Extending Upward From 700 Feet or More                                                          Correction to Final Rule
                                               270.2a41–1, 270.12d–3 and 270.31a–1]
Above the Surface of the Earth
                                               under the Investment Company Act of              AGENCY:  Office of the Assistant
*     *     *      *     *                     1940 [15 U.S.C. 80a–1, et seq.] (the             Secretary for Housing—Federal Housing
ANE ME E5 Oxford, ME [New]                     ‘‘March Amendments’’).1 Section V.A of           Commissioner, HUD.
                                               the release adopting the March                   ACTION: Final rule; Correction.
Oxford County Regional Airport, ME
                                               Amendments (the ‘‘March Release’’)
  (Lat. 44°09′27′′N, long. 70°28′53′′W)                                                         SUMMARY:  On July 19, 1996 (61 FR
                                               provided that money market funds
  That airspace extending upward from 700      would be required to comply with                 37798), the Department published in the
feet above the surface within a 9.6-mile       certain of the March Amendments by
radius of Oxford County Regional Airport;      October 3, 1996.2 The Commission                    3 Money market funds may comply with any of

excluding that airspace within the Auburn,                                                      the amendments or rules adopted in the March
                                               anticipates that it will be proposing            Release prior to the new compliance date. See
ME Class E airspace area.
                                               technical amendments (‘‘Technical                Section V.A. of the March Release.
*     *     *      *     *                     Amendments’’) to certain of the March               4 Section V.B of the March Release

  Issued in Burlington, MA, on August 12,      Amendments, which are not expected to            ‘‘grandfathered’’ certain securities by providing that
1996.                                          be adopted before October 3, 1996.               money market funds could continue to purchase
                                                                                                such securities issued on or before June 3, 1996 (the
David J. Hurley,                               Therefore, the Commission is                     ‘‘Grandfathering Date’’). The Commission intends to
Manager, Air Traffic Division, New England     suspending the October 3, 1996                   publish in the Federal Register a new
Region.                                        compliance date, and will establish a            Grandfathering Date for securities of the type
                                               new compliance date for the March                described in Section V.B of the March Release.
[FR Doc. 96–21092 filed 8–16–96; 8:45 am]                                                       Such securities issued prior to the new
BILLING CODE 4910–13–M                                                                          Grandfathering Date may continue to be purchased
                                                 1 See Investment Company Act Rel. No. 21837    and held by money market funds relying on the
                                               (Mar. 21, 1996) [61 FR 13956 (Mar. 28, 1996)].   rule.
                                                 2 Id.                                             5 5 U.S.C. 553(d)(1).
             Federal Register / Vol. 61, No. 161 / Monday, August 19, 1996 / Rules and Regulations                            42787

Federal Register, a final rule that          DEPARTMENT OF LABOR                           The Agency is now publishing the
finalized a proposed rule published by                                                  final policy in the Federal Register to
the Department on January 26, 1996,          Mine Safety and Health Administration      ensure that all interested parties are
which proposed many benefits to the                                                     informed. MSHA also will issue this
mortgage lenders that would reduce           30 CFR Parts 56 and 57                     policy as Program Policy Letter No.
their servicing costs and the confusion                                                 P96–IV–2 and as an update to the
                                             Final Policy on Examination of
generated by adjustments to the annual                                                  Program Policy Manual, Volume IV,
                                             Working Places
mortgage insurance premium (MIP) on                                                     pages 61 and 62. The full text of this
cases not endorsed within the first six      AGENCY:  Mine Safety and Health            Program Policy Letter is published in
months after amortization. The purpose       Administration, Labor.                     Appendix I of this notice. This policy
of this document is to remove a              ACTION: Final rule; policy.                letter supersedes MSHA’s existing
redundant sentence in the preamble of                                                   policy regarding enforcement of these
the rule and to make a clarifying change     SUMMARY:   The Mine Safety and Health      standards.
to § 203.264.                                Administration (MSHA) is revising its
                                                                                           Dated: August 8, 1996.
                                             policy concerning the examination of
EFFECTIVE DATE:    August 19, 1996.                                                     J. Davitt McAteer,
                                             working places at all metal and
                                             nonmetal mining operations to clarify      Assistant Secretary for Mine Safety and
FOR FURTHER INFORMATION CONTACT:    John                                                Health.
                                             operators’ obligations under 30 CFR
L. Sahl, Acting Director, Office of
                                             56.18002 and 57.18002, Examination of      Appendix I—Program Policy Letter No.
Mortgage Insurance Accounting and
                                             Working Places. To ensure that all         P96–IV–2—30 CFR 56.18002 and
Servicing, Room 2108, Department of
                                             interested persons are informed of this    57.18002—Examination of Working
Housing and Urban Development, 451
                                             action, MSHA is publishing the full text   Places
7th Street, S.W., Washington, DC 20410,      of the Program Policy Letter addressing
telephone (202) 708–1046. For                                                             Effective Date: November 18, 1996.
                                             these standards in Appendix I of this        Expiration Date: 3/31/97.
telephone communication, contact             notice. This policy letter supersedes
Anne Baird-Bridges, Single Family                                                       Program Policy Letter No. P96–IV–2
                                             MSHA’s existing policy regarding
Insurance Operations Division, at (202)      enforcement of these standards.            From: Vernon R. Gomez, Administrator for
708–2438. Hearing or speech-impaired                                                        Metal and Nonmetal Mine Safety and
                                             EFFECTIVE DATE: November 18, 1996.             Health.
individuals may call HUD’s TTY
                                             FOR FURTHER INFORMATION CONTACT:           Subject: 30 CFR 56.18002 and 57.18002—
number (202) 708–4594. These are not
toll-free numbers.                           Rodric Breland, Chief, Division of             Examination of working places.
                                             Safety, Metal and Nonmetal Mine Safety     Scope
SUPPLEMENTARY INFORMATION:                   and Health, 703–235–8647.
                                                                                          This policy letter applies to metal and
Accordingly, corrections are made to FR
                                             SUPPLEMENTARY INFORMATION:                 nonmetal mine operators and Metal and
Doc. 96–18354, a final rule on Single                                                   Nonmetal Mine Safety and Health
Family Mortgage Insurance Premium,           I. Paperwork Reduction Act                 Administration (MSHA) enforcement
published in the Federal Register on            The information collection              personnel.
July 19, 1996 (61 FR 37798), as follows:     requirement in §§ 56.18002 and             Purpose
  1. On page 37798, in the first column,     57.18002 has been approved by the
                                                                                          This policy letter revises MSHA’s existing
the preamble is corrected by removing        Office of Management and Budget under      policy regarding enforcement of its standards
the third sentence in paragraph 2 of the     control number 1219–0089.                  in Title 30, Code of Federal Regulations (30
SUMMARY that reads, ‘‘A new system is        II. Discussion of Final Policy             CFR) §§ 56.18002 and 57.18002, Examination
being developed (and expected to be                                                     of working places, to clarify operators’
operational by Summer 1997) which               MSHA’s safety standards in              obligations under these standards. MSHA
would produce a monthly notice of            §§ 56.18002 and 57.18002 concerning        also is revising this policy in MSHA’s
                                             examination of working places at metal     Program Policy Manual, Volume IV, pages 61
premiums due, and the reconciliation                                                    and 62.
will be made monthly by the lender           and nonmetal mines were first
                                             promulgated as advisory standards in         Mine operators are responsible for
when the premium is paid.’’                                                             preventing unsafe conditions and practices
                                             July 1969 and became mandatory in          and correcting safety and health hazards
  2. On page 37801, § 203.264 is             August 1979. MSHA issued Program
correctly revised to read as follows:                                                   before miners become exposed to them.
                                             Policy Letter (PPL) No. P94–IV–5 on        MSHA believes that regular working place
§ 203.264   Payment of periodic MIP.         December 12, 1994, clarifying its policy   examinations are fundamental to the
                                             concerning these standards. Shortly        prevention of accidents in the mining
   The mortgagee shall pay each MIP in       thereafter, MSHA introduced a new          industry. MSHA standards in 30 CFR
twelve equal monthly installments.           procedure to encourage participation in    56.18002 and 57.18002 require the operator
Each monthly installment shall be due        enforcement policy formulation and         to conduct a regular examination of working
and payable to the Commissioner no                                                      areas for hazards. As a result, miners will be
                                             withdrew the PPL concerning                ensured a safer and more healthful mine
later than the tenth day of each month,      examination of working places.             environment.
beginning in the month in which the          Subsequently, the PPL was revised and
mortgagor is required to make the first      published in the Federal Register (60      Policy
monthly mortgage payment. This will be       FR 9987) on February 22, 1995 and            30 CFR §§ 56/57.18002, Examination of
effective for amortization beginning on      public input was solicited. The Agency     working places, provide:
or after September 1, 1996.                  also held public meetings on July 6 and      (a) A competent person designated by the
                                             7, 1995, in Cleveland, Ohio; and July 12   operator shall examine each working place at
  Dated: August 14, 1996.                                                               least once each shift for conditions which
                                             and 13, 1995, in Elko, Nevada. MSHA        may adversely affect safety or health. The
Camille E. Acevedo,
                                             received comments from both labor and      operator shall promptly initiate appropriate
Assistant General Counsel for Regulations.   industry, and considered these             action to correct such conditions.
[FR Doc. 96–21031 Filed 8–16–96; 8:45 am]    comments in the development of this          (b) A record that such examinations were
BILLING CODE 4210–27–P                       final policy.                              conducted shall be kept by the operator for
42788        Federal Register / Vol. 61, No. 161 / Monday, August 19, 1996 / Rules and Regulations

a period of one year, and shall be made            of a significant number of recent accidents.     SUPPLEMENTARY INFORMATION:
available for review by the Secretary or his       In the 5-year period from 1988–1992, MSHA
authorized representative.                                                                          I. Background on the Virginia Program.
                                                   has investigated 17 serious and fatal
   (c) In addition, conditions that may present                                                     II. Submission of the Amendment.
                                                   accidents where working place examinations
an imminent danger which are noted by the                                                           III. Director’s Findings.
                                                   were not conducted or were inadequately
person conducting the examination shall be                                                          IV. Summary and Disposition of Comments.
                                                   conducted and were found to have
brought to the immediate attention of the                                                           V. Director’s Decision.
                                                   contributed to the cause of the accident.
operator who shall withdraw all persons                                                             VI. Procedural Determinations.
from the area affected (except persons             Authority
                                                                                                    I. Background on the Virginia Program
referred to in section 104(c) of the Federal        30 CFR §§ 56.18002 and 57.18002.
Mine Safety and Health Act of 1977) until the                                                         On December 15, 1981, the Secretary
danger is abated.                                  Filing Instructions                              of the Interior conditionally approved
   MSHA intends that the terms ‘‘competent           This policy letter should be filed after the   the Virginia program. Background
person’’ and ‘‘working place,’’ used in §§ 56/     tab ‘‘Program Policy Letters,’’ located behind   information on the Virginia program
57.18002(a), be interpreted as defined in          Volume IV of the Program Policy Manual.          including the Secretary’s findings, the
§§ 56.2 and 57.2, Definitions.                                                                      disposition of comments, and the
                                                   Issuing Office and Contact Person
   A ‘‘competent person,’’ according to
§§ 56.2 and 57.2, is ‘‘a person having abilities   Metal and Nonmetal Mine Safety and Health,       conditions of approval can be found in
and experience that fully qualify him to              Division of Safety, Richard Feehan, 703–      the December 15, 1981, Federal Register
perform the duty to which he is assigned.’’           235–8647                                      (46 FR 61085–61115). Subsequent
This definition includes any person who, in        Distribution
                                                                                                    actions concerning the conditions of
the judgment of the operator, is fully                                                              approval and program amendments are
qualified to perform the assigned task. MSHA       Program Policy Manual Holders                    identified at 30 CFR 946.11, 946.12,
does not require that a competent person be        Metal and Nonmetal Mine Operators
                                                   Metal and Nonmetal Independent
                                                                                                    946.13, 946.15, and 946.16.
a mine foreman, mine superintendent, or
other person associated with mine                    Contractors                                    II. Submission of the Amendment
management.                                        Metal and Nonmetal Special Interest Groups
                                                                                                       By letter dated April 17, 1996
   The phrase ‘‘working place’’ is defined in      [FR Doc. 96–20987 Filed 8–16–96; 8:45 am]        (Administrative Record No. VA–876),
30 CFR §§ 56.2 and 57.2 as: ‘‘any place in or
about a mine where work is being
                                                   BILLING CODE 4510–43–P                           Virginia submitted amendments to
performed.’’ As used in the standard, the                                                           § 45.1–243 of the Code of Virginia
phrase applies to those locations at a mine                                                         contained in Virginia House Bill 706,
site where persons work during a shift in the                                                       and concerning the sudden release of
mining or milling processes.                       DEPARTMENT OF THE INTERIOR                       accumulated water from underground
   Standards 56/57.18002(b) require operators                                                       coal mine voids. Virginia also submitted
to keep records of working place                   Office of Surface Mining Reclamation             the proposed implementing regulations
examinations. These records must include:          and Enforcement                                  at § 480–03–19.784.14 concerning
(1) the date the examination was made; (2)
                                                   30 CFR Part 946                                  hydrologic information for reclamation
the examiner’s name; and (3) the working
places examined. MSHA intends to allow                                                              and operations plans, and § 480–03–
operators considerable flexibility in                                                               19.817.41 concerning performance
                                                   [VA–107–FOR]                                     standards for hydrologic balance
complying with this provision in order to
minimize the paperwork burden.                     Virginia Regulatory Program                      protection.
   Records of examinations may be entered on                                                           The proposed amendment was
computer data bases or documents already in        AGENCY:   Office of Surface Mining               published in the May 3, 1996, Federal
use, such as production sheets, logs, charts,      Reclamation and Enforcement (OSM),               Register (61 FR 19885), and in the same
time cards, or other format that is more           Interior.                                        notice, OSM opened the public
convenient for mine operators.                                                                      comment period and provided
   In order to comply with the record              ACTION: Final rule; approval of
retention portion of §§ 56.18002(b) and            amendment.                                       opportunity for a public hearing on the
57.18002(b), operators must retain workplace                                                        adequacy of the proposed amendment.
examination records for the preceding 12           SUMMARY:   OSM is approving a proposed           The comment period closed on June 3,
months. As an alternative to the 12-month          amendment to the Virginia permanent              1996.
retention period, an operator may discard          regulatory program (hereinafter referred
these records after MSHA has completed its
                                                                                                    III. Director’s Findings
                                                   to as the Virginia program) under the
next regular inspection of the mine, if the        Surface Mining Control and                          Set forth below, pursuant to SMCRA
operator also certifies that the examinations                                                       and the Federal regulations at 30 CFR
have been made for the preceding 12 months.
                                                   Reclamation Act of 1977 (SMCRA). The
                                                   proposed amendment consists of                   732.15 and 732.17, are the Director’s
   Evidence that a previous shift examination                                                       findings concerning the proposed
was not conducted or that prompt corrective        statutory changes contained in Virginia
                                                   House Bill 706 and the implementing              amendment to the Virginia program.
action was not taken will result in a citation
for violation of §§ 56.18002 and 57.18002 (a)      regulations, both of which address                  The amendments proposed by
or (c). This evidence may include                  sudden release of accumulated water              Virginia are as follows:
information which demonstrates that safety         from underground coal mine voids. The               1. § 45.1–243 of the Code of Virginia
or health hazards existed prior to the working     amendment is intended to improve the             is amended by adding a new subsection
shift in which they were found. Although the       effectiveness of the Virginia program.           to read as follows:
presence of hazards covered by other                                                                   B. The Director’s regulations shall
standards may indicate a failure to comply         EFFECTIVE DATES: August 19, 1996.                require that permit applicants submit
with this standard, MSHA does not intend to        FOR FURTHER INFORMATION CONTACT: Mr.             hydrologic reclamation plans that
cite §§ 56.18002 and 57.18002 automatically        Robert A. Penn, Director, Big Stone Gap          include measures that will be utilized to
when the Agency finds an imminent danger           Field Office, Office of Surface Mining           prevent the sudden release of
or a violation of another standard.
                                                   Reclamation and Enforcement, 1941                accumulated water from underground
Background                                         Neeley Road, Suite 201, Compartment              workings.
  Failure to conduct working place                 116, Big Stone Gap, Virginia 24219,                 2. § 480–03–19.784.14(g) of the
examinations has been a contributing cause         Telephone: (540) 523–4303.                       Virginia regulations is amended to add
            Federal Register / Vol. 61, No. 161 / Monday, August 19, 1996 / Rules and Regulations                           42789

the requirement that the hydrologic           proposed regulatory changes are not          amendment is in compliance with the
reclamation plan shall also include           likely to adversely affect threatened or     Clean Water Act and offered no
identification of the measures to be          endangered species or critical habitats.     additional comments.
taken to prevent the sudden release of           The U.S. Department of Labor, Mine
                                              Safety and Health Administration             V. Director’s Decision
accumulated water from the
underground workings.                         (MSHA) responded and stated that it            Based on the findings above, the
   3. § 480–03–19.817.41(i) is amended        may be useful for the State to develop       Director is approving Virginia’s
by adding new subparagraph (3) to read        the criteria that would be employed to       amendment concerning sudden release
as follows:                                   measure the phrase ‘‘cannot reasonably       of accumulated water from underground
   (i)(3) Except where surface entries and    be expected’’ that appears at proposed       coal mine voids as submitted by
accesses to underground workings are          § 480–03–19.817.41(i)(3)(ii). The            Virginia on April 17, 1996.
located pursuant to (i)(1) of this Section,   provision provides for an exception to         The Federal regulations at 30 CFR
an unmined barrier of coal shall be left      the barrier width requirement of (i)(3)(i)   Part 946 codifying decisions concerning
in place where the coal seam dips             when site specific conditions indicate       the Virginia program are being amended
toward the land surface. The unmined          there will be no accumulation of water.      to implement this decision. This final
barrier and associated overburden shall       In response to the MSHA comment, the         rule is being made effective immediately
be designed to prevent the sudden             Division of Mines, Minerals and Energy       to expedite the State program
release of water that may accumulate in       (DMME) said that it chose not to specify     amendment process and to encourage
the underground workings.                     in the proposed amendment each               States to bring their programs into
   (i)(3)(i) The applicant may                circumstance an applicant may be able        conformity with the Federal standards
demonstrate the appropriate barrier           to demonstrate that water ‘‘cannot           without undue delay. Consistency of
width and overburden height by either:        reasonably be expected’’ to accumulate       State and Federal standards is required
   (A) providing a site specific design,      within the abandoned mine voids.             by SMCRA.
certified by a qualified registered           DMME stated that it intends to depend        VI. Procedural Determinations
professional engineer, which considers        upon conservative scientific principles
the overburden and barrier                    in evaluating each case specific             Executive Order 12866
characteristics; or                           demonstration. DMME intends to                 This rule is exempted from review by
   (B) providing the greater barrier width    consider the availability/proximity of       the Office of Management and Budget
necessary for a minimum of 100 feet of        water to the underground voids as well       (OMB) under Executive Order 12866
vertical overburden or for an unmined         as the geohydrologic parameters that         (Regulatory Planning and Review).
horizontal barrier calculated by the          may affect the ability of the voids to
                                              hold such waters under head. In              Executive Order 12988
formula: W=50+H, when W is the
minimum width in feet and H is the            response, the Director believes the             The Department of the Interior has
calculated hydrostatic head in feet.          DMME approach to be reasonable and           conducted the reviews required by
   (i)(3)(ii) Exception to the barrier        has determined in the Finding above,         section 3 of Executive Order 12988
requirement may be approved provided          that the proposed amendments are not         (Civil Justice Reform) and has
the Division finds, based upon the            inconsistent with SMCRA and the              determined that, to the extent allowed
geologic and hydrologic conditions, an        Federal regulations.                         by law, this rule meets the applicable
accumulation of water in the                                                               standards of subsections (a) and (b) of
                                              Public Comments                              that section. However, these standards
underground workings cannot
reasonably be expected to occur or other        A public comment period and                are not applicable to the actual language
measures taken by the applicant are           opportunity to request a public hearing      of State regulatory programs and
adequate to prevent the accumulation of       was announced in the May 3, 1996,            program amendments since each such
water.                                        Federal Register (61 FR 19885). The          program is drafted and promulgated by
   There are no Federal counterparts to       comment period closed on June 3, 1996.       a specific State, not by OSM. Under
the Virginia amendments. The Director         No comments were received and no one         sections 503 and 505 of SMCRA (30
finds, however, that the amendments           requested an opportunity to testify at       U.S.C. 1253 and 1255) and 30 CFR
are reasonable, and not inconsistent          the scheduled public hearing so no           730.11, 732.15 and 732.17(h)(10),
with SMCRA and the Federal                    hearing was held.                            decisions on proposed State regulatory
regulations. The Virginia amendments                                                       programs and program amendments
                                              Environmental Protection Agency (EPA)        submitted by the States must be based
are technically sound, and will add an
                                                Under 30 CFR 732.17(h)(11)(ii), the        solely on a determined of whether the
increased measure of protection from
                                              Director is required to obtain the written   submittal is consistent with SMCRA and
the hazards of sudden releases of
                                              concurrence of the Administrator of the      its implementing Federal regulations
accumulated water from underground
                                              EPA with respect to any provisions of a      and whether the other requirements of
workings.
                                              State program amendment that relate to       30 CFR Parts 730, 731, and 732 have
IV. Summary and Disposition of                air or water quality standards               been met.
Comments                                      promulgated under the authority of the
                                              Clean Water Act (33 U.S.C. 1251 et seq.)     National Environmental Policy Act
Federal Agency Comments                                                                      No environmental impact statement is
                                              or the Clean Air Act (42 U.S.C. 7401 et
  Pursuant to section 503(b) of SMCRA         seq.). The Director has determined that      required for this rule since section
and 30 CFR 732.17(h)(11)(i), comments         this amendment contains no provisions        702(d) of SMCRA [30 U.S.C. 1292(d)]
were solicited from various interested        in these categories and that EPA’s           provides that agency decisions on
Federal agencies. The U.S. Department         concurrence is not required.                 proposed State regulatory program
of Agriculture, Natural Resources               Pursuant to 732.17(h)(11)(i), OSM          provisions do not constitute major
Conservation Service responded and            solicited comments on the proposed           Federal actions within the meaning of
recommended that the amendments be            amendment from EPA. EPA responded            section 102(2)(C) of the National
accepted. The U.S. Fish and Wildlife          on June 20, 1996 (Administrative             Environmental Policy Act (42 U.S.C.
Service responded and stated that the         Record No. VA–891) and stated that the       4332(2)(C)).
42790         Federal Register / Vol. 61, No. 161 / Monday, August 19, 1996 / Rules and Regulations

Paperwork Reduction Act                      DEPARTMENT OF COMMERCE                         publication of patent applications and
  This rule does not contain                                                                that are considered desirable even in the
information collections requirements         Patent and Trademark Office                    absence of an 18-month publication
that require approval by OMB under the                                                      system.
                                             37 CFR Part 1
Paperwork Reduction Act (44 U.S.C.                                                             The Notice of Proposed Rulemaking
3507 et seq.).                               [Docket No: 950620162–6014–02]
                                                                                            indicated that, in addition to
                                             RIN 0651–AA75                                  implementing the 18-month publication
Regulatory Flexibility Act
   The Department of the Interior has                                                       of patent applications, the Office also
                                             Miscellaneous Changes in Patent
determined that this rule will not have                                                     proposed to: (1) Clarify which
                                             Practice
a significant economic impact on a                                                          applications claiming the benefit of
substantial number of small entities         AGENCY:  Patent and Trademark Office,          prior applications, or which prior
under the Regulatory Flexibility Act (5      Commerce.                                      applications for which a benefit is
                                             ACTION: Final rule.                            claimed in a later application, will be
U.S.C. 601 et seq.). The State submittal
which is the subject of this rule is based   SUMMARY:    The Patent and Trademark           preserved in confidence; (2) amend the
upon counterpart Federal regulations for     Office (Office) is amending the rules of       rules pertaining to the format and
which an economic analysis was               practice in patent cases to implement a        standards for application papers and
prepared and certification made that         number of miscellaneous changes                drawings to improve the standardization
such regulations would not have a            proposed in the rulemaking entitled            of patent applications; (3) provide for
significant economic effect upon a           ‘‘Changes to Implement 18-Month                those instances in which inventions of
substantial number of small entities.        Publication of Patent Applications’’           a pending application or patent under
Accordingly, this rule will ensure that      (Notice of Proposed Rulemaking),               reexamination and inventions of a
existing requirements previously             published in the Federal Register at 60        patent held by a single party are not
promulgated by OSM will be                   FR 42352 (August 15, 1995), and in the         identical, but not patentably distinct; (4)
implemented by the State. In making the      Patent and Trademark Office Official           clarify the practice for the delivery or
determination as to whether this rule        Gazette 1177 Off. Gaz. Pat. Office 61          mailing of patents; (5) expedite the entry
would have a significant economic            (August 15, 1995), that are not directly       of international applications into the
impact, the Department relied upon the       related to the 18-month publication of         national stage; and (6) amend a number
data and assumptions for the                 patent applications. While the proposed
counterpart Federal regulations.                                                            of rules for consistency and clarity. The
                                             rule changes in the Notice of Proposed         Notice of Proposed Rulemaking stated
Unfunded Mandates                            Rulemaking were designed primarily to          that these proposed rule changes may be
  This rule will not impose a cost of        implement the changes in practice              adopted as final rules even in the
$100 million or more in any given year       related to the publication of patent           absence of an 18-month publication
on any governmental entity or the            applications provided for in H.R. 1733,        system, and advised interested persons
private sector.                              these miscellaneous proposed changes
                                                                                            to comment on any proposed rule
                                             clarify current rules of practice, without
List of Subjects in 30 CFR Part 946                                                         change, regardless of whether H.R. 1733
                                             regard to the publication of patent
                                             applications.                                  is enacted.
  Intergovernmetal relations, Surface
mining, Underground mining.                  DATES: Effective Date: September 23,              To avoid delays in the
                                             1996.                                          implementation of rule changes
  Dated: July 30, 1996.
                                                Applicability Date: Sections 1.52 (a)       considered desirable even in the
Allen D. Klein,
                                             and (b), 1.58, 1.72 (b), 1.75 (g), (h) and     absence of an 18-month publication
Regional Director, Appalachian Regional
Coordinating Center.                         (i), 1.77, 1.84 (c), (f), (g) and (x), 1.96,   system, this final rule package provides
                                             1.154, and 1.163 of 37 CFR apply to            for changes to 37 CFR 1.12(c), 1.14, 1.52
  For the reasons set out in the
                                             applications filed on or after September       (a) and (b), 1.54, 1.58, 1.62 (e) and (f),
preamble, title 30, chapter VII,
subchapter T of the Code of Federal          23, 1996.                                      1.72(b), 1.75(g), 1.77, 1.78 (a) and (c),
Regulations is amended as set forth          FOR FURTHER INFORMATION CONTACT:               1.84 (c), (f), (g) and (x), 1.96, 1.97, 1.107,
below:                                       Stephen G. Kunin by telephone at (703)         1.110, 1.131, 1.132, 1.154, 1.163, 1.291,
                                             305–8850, by facsimile at (703) 305–           1.292, 1.315, 1.321 and 1.497, and adds
PART 946—VIRGINIA                            8825, by electronic mail at                    new §§ 1.5(f), 1.75 (h) and (i), and 1.130,
                                             rbahr@uspto.gov, or Jeffrey V. Nase by         all of which are based upon the changes
  1. The authority citation for part 946     telephone at (703) 305–9285, or by mail
continues to read as follows:                                                               proposed in the Notice of Proposed
                                             marked to the attention of Stephen G.          Rulemaking.
    Authority: 30 U.S.C. 1201 et seq.        Kunin, addressed to the Assistant
  2. In § 946.15, paragraph (kk) is added    Commissioner for Patents, Washington,          Implementation of 18-Month
to read as follows:                          D.C. 20231. For copies of the forms            Publication Held in Abeyance Pending
                                             discussed in this final rule package,          Congressional Action on H.R. 1733
§ 946.15 Approval of regulatory program      contact the Customer Service Center of
amendments
                                             the Office of Initial Patent Examination         The Notice of Proposed Rulemaking
*     *    *     *     *                     at (703) 308–1214.                             also proposed changes to 37 CFR 1.4,
  (kk) The amendment to the Virginia                                                        1.5(a), 1.9, 1.11, 1.12 (a) and (b), 1.13,
                                             SUPPLEMENTARY INFORMATION: This final
program concerning the sudden release                                                       1.16, 1.17, 1.18, 1.19, 1.20, 1.24, 1.51,
                                             rule package is designed to implement
of accumulated water from underground                                                       1.52(d), 1.53, 1.55, 1.60, 1.78(a), 1.84(j),
                                             the miscellaneous changes set forth in
coal mine voids as submitted to OSM on                                                      1.85, 1.98, 1.108, 1.136, 1.138, 1.492,
                                             the proposed rulemaking entitled
April 17, 1996, is approved effective                                                       1.494, 1.495, 1.701, 1.808, 3.31, 5.1, new
                                             ‘‘Changes to Implement 18-Month
August 19, 1996.                                                                            §§ 1.5(g), 1.306 through 1.308 and 5.9,
                                             Publication of Patent Applications’’
[FR Doc. 96–21083 Filed 8–16–96; 8:45 am]    (Notice of Proposed Rulemaking) that
BILLING CODE 4310–05–M                       are not directly related to 18-month
           Federal Register / Vol. 61, No. 161 / Monday, August 19, 1996 / Rules and Regulations                            42791

and further changes to §§ 1.14, 1.54,        deleted for consistency with the changes     commence on a separate sheet,
1.62, 1.107, 1.131, 1.132, 1.291 and         to paragraphs (a) and (b) of § 1.14.         preferably following the claims. This
1.292 to implement the 18-month                 Section 1.52(a) is being changed to       change will avoid renumbering pages of
publication of patent applications as        provide that all papers which are to         a specification submitted in the
contained in H.R. 1733 and provide           become a part of the permanent records       arrangement set forth in § 1.77 when
procedures for the treatment of national     of the Patent and Trademark Office must      filing the application as an international
security classified applications. The        be legibly ‘‘written either by a             application.
adoption of changes to these rules is        typewriter or mechanical printer in             Section 1.75(h) is being changed to
held in abeyance pending Congressional       permanent dark ink or its equivalent,’’      provide that the claim or claims must
action on H.R. 1733.                         rather than ‘‘typed in permanent dark        commence on a separate sheet. This
   The proposed rule changes in the          ink.’’ This change will permit the filing    change will clarify that § 1.75 requires
Notice of Proposed Rulemaking to             of papers printed by any computer            that the claim or claims commence or
provide new procedures for the               operated printer, such as a laser printer    begin on a separate sheet, rather than
treatment of national security classified    which uses toner rather than ink, and        requiring that all of the claims must be
applications are also being held in          will avoid a conflict between § 1.52(a)      on a single separate sheet or that each
abeyance. These proposed rule changes        and Patent Cooperation Treaty (PCT)          claim must be on a separate sheet.
are separable from the implementation        Rule 11.9. The phrase ‘‘when required           Section 1.77 is being changed to
of 18-month publication; however, they       by the Office’’ was also added to            position the abstract as element ‘‘(12)’’
are sufficiently related to the              § 1.52(a).                                   following the claims, rather than
implementation of 18-month                      Section 1.52(b) is being changed to       element ‘‘(3)’’ prior to the first page of
publication that they are also being held    provide that: (1) The application papers     the specification to conform to § 1.72.
in abeyance pending Congressional            must be plainly written with each page          Section 1.78(a)(2) is being changed to
action on H.R. 1733.                         printed on only one side of a sheet of       replace the reference to § 1.14(b) with a
   In the event that H.R. 1733 is enacted,   paper, with the claim or claims              reference to § 1.14(a).
a final rule package to implement this       commencing on a separate sheet and the          Section 1.78(c) is being changed to
legislation will be published. Final rules   abstract commencing on a separate            replace the phrase ‘‘[w]here an
to implement 18-month publication of         sheet; (2) the lines of the specification,   application or a patent under
patent applications based upon the           and any amendments to the                    reexamination and an application or a
Notice of Proposed Rulemaking and the        specification, must be 11⁄2 or double        patent’’ with the phrase ‘‘[w]here an
comments received in response to the         spaced; and (3) the pages of the             application or a patent under
Notice of Proposed Rulemaking may be         specification including claims and           reexamination and at least one other
adopted without either an additional         abstract must be numbered                    application,’’ since conflicting claims
public hearing or an additional proposal     consecutively, starting with 1, the          between an application or a patent
being published for comment.                 numbers being centrally located above        under reexamination and a patent will
                                             or preferably, below, the text. This         be provided for in new § 1.130. Section
Implementation of the Miscellaneous          change will clarify: (1) The separate        1.78(c) is also being changed to delete
Changes Proposed in the Notice of            sheet requirement for both the claims        the sentence ‘‘[i]n addition to making
Proposed Rulemaking                          and abstract, (2) that the lines of the      said statement, the assignee may also
   The following paragraphs of this          papers not comprising the specification      explain why an interference should or
section include: (1) A discussion of the     and amendments thereto need not be           should not be declared,’’ since the
rules being added or amended in this         11⁄2 or double spaced, and (3) that the      Office will not, unless good cause is
final rule package, (2) the reasons for      specification, and not the transmittal       shown, declare or continue an
those additions and amendments, and          sheets or other forms, must be               interference when the application(s) and
(3) an analysis of the comments received     numbered.                                    patent are owned by a single party.
in response to the Notice of Proposed           Section 1.58 is being changed to             Section 1.78(d) is removed. The
Rulemaking.                                  provide that chemical and mathematical       provisions of § 1.78(d), as proposed, are
                                             formulae and tables must be presented        in new § 1.130(b), since § 1.130 provides
Changes to Proposed Rules                    in compliance with §§ 1.52 (a) and (b),      for conflicting claims between an
  These final rules contain a number of      except that chemical and mathematical        application or a patent under
changes to the text of the rules as          formulae or tables may be placed in a        reexamination and a patent.
proposed for comment. The significant        landscape orientation if they cannot be         Section 1.84(x) is being changed from
changes are discussed below.                 presented satisfactorily in a portrait       ‘‘[n]o holes should be provided in the
Familiarity with the Notice of Proposed      orientation. This replaces the               drawings sheets’’ to ‘‘[n]o holes should
Rulemaking is assumed.                       requirement that ‘‘[t]o facilitate camera    be made by the applicant in the drawing
  Sections 1.14 (a) and (b) have been re-    copying when printing, the width of          sheets’’ to clarify that the application
written for clarity. Section 1.14(a)(1)      formulas and tables as presented should      papers, including drawings, should be
provides that patent applications are        be limited normally to 12.7 cm. (5           submitted by the applicant without
generally preserved in confidence.           inches) so that it may appear as a single    holes provided therein, but that the
Section 1.14(a)(2) sets forth the            column in the printed patent.’’              Office will drill holes through the
circumstances under which status             However, chemical and mathematical           application papers during the pre-
information concerning an application        formulae and tables must still otherwise     examination processing of the
may be supplied, and § 1.14(a)(3) sets       comply with §§ 1.52 (a) and (b). This        application.
forth the circumstances under which          change will avoid a conflict between            Section 1.96(b) is being changed to
access to, or copies of, an application      § 1.58 and PCT Rule 11.10(d). Section        provide that a listing submitted as part
may be provided. Section 1.14(b)             1.58 is also being changed to require        of the specification ‘‘must be direct
provides that abandoned applications         ‘‘0.21 cm.’’ rather than ‘‘2.1 mm.’’ to      printouts (i.e., not copies) from the
may be destroyed after 20 years from         ensure consistency.                          computer’s printer’’ for clarity.
their filing date. The reference to             Section 1.72 is being changed to             Section 1.96(c) is being changed to
paragraph (b) in § 1.14(e) has been          provide that the abstract must               substitute a reference to 36 CFR Part
42792       Federal Register / Vol. 61, No. 161 / Monday, August 19, 1996 / Rules and Regulations

1230 (Micrographics) for the                   the specification. This change will          proper conduct of business before the
enumerated American National                   parallel the change to § 1.77. In            Office. Status information includes
Standards Institute (ANSI) and National        addition, § 1.163(c)(10) is being changed    information such as whether the
Micrographics Association (NMA)                to add ‘‘a single’’ prior to ‘‘claim.’’      application is pending, abandoned, or
standards. As 36 CFR Part 1230 sets               Section 1.497(b)(2) is being changed      patented, as well as the application
forth the micrographic requirements for        to provide that ‘‘[i]f the person making     number and filing date. The inclusion of
government records, it is appropriate to       the oath or declaration is not the           applications claiming the benefit of the
reference this provision, rather than          inventor, the oath or declaration shall      filing date of applications so identified
promulgate separate standards for              state the relationship of the person to      is to avoid misleading the public in
micrographics employed in patent               the inventor, the facts required by          instances in which the application
applications.                                  §§ 1.42, 1.43 or 1.47, and, upon             identified as set forth in § 1.14(a)(2) is
   Section 1.97 is being changed to            information and belief, the facts which      abandoned, but an application claiming
delete any reference to a reexamination        the inventor would have been required        the benefit of the filing date of the
proceeding or a patent owner. The              to state’’ to better set forth the           identified application (e.g., a continuing
submission of an information disclosure        requirements of an oath or declaration       application) is pending.
statement during a reexamination               by a person who is not the inventor.            Section 1.14(a) is also amended to add
proceeding is governed by § 1.555(a).          Section 1.497(c) is being changed to         a new paragraph (a)(3) to provide that
   Section 1.97(a) is being changed from       delete the initial phrase ‘‘[t]he oath or    access to, or copies of, an application
‘‘[i]n order for an applicant for patent or    declaration must comply with the             may be provided: (1) When the
for reissue of a patent to have                requirements of § 1.63; however,’’ since     application is open to the public as
information considered by the Office           it is unnecessary.                           provided in § 1.11(b); (2) when written
during the pendency of a patent                                                             authority in that application from the
application, an information disclosure         Discussion of Specific Rules                 applicant, the assignee of the
statement in compliance with § 1.98               Title 37 of the Code of Federal           application, or the attorney or agent of
should be filed in accordance with this        Regulations, Part 1 is amended as            record has been granted; (3) when it has
section’’ to ‘‘[i]n order for an applicant     follows:                                     been determined by the Commissioner
for a patent or for a reissue of a patent         Section 1.5(f) is added to provide that   to be necessary for the proper conduct
to have an information disclosure              a paper concerning a provisional             of business before the Office, or (4) to
statement in compliance with § 1.98            application must identify the                any person on written request, without
considered by the Office during the            application as such and by the               notice to the applicant, when the
pendency of the application, it must           application number.                          application is abandoned and available
satisfy paragraph (b), (c), or (d) of this        Section 1.12 is amended to revise         and is: (a) Referred to in a U.S. patent,
section’’ for clarity. Sections 1.97 (c)       paragraph (c) to read ‘‘preserved in         (b) referred to in an application open to
and (d) are also being changed to clarify      confidence under § 1.14’’ for                public inspection, (c) an application
the conditions in § 1.97(c) under which        consistency with § 1.14.                     which claims the benefit of the filing
a certification as specified in § 1.97(e) or      Section 1.14 is amended to revise the     date of an application open to public
the fee set forth in § 1.17(p) is required,    title and paragraphs (a) and (e) to read     inspection, or (d) an application in
and the conditions in § 1.97(d) under          ‘‘preserved in confidence’’ for              which the applicant has filed an
which a certification as specified in          consistency with the language in 35          authorization to lay open the complete
§ 1.97(e), a petition, and the petition fee    U.S.C. 122.                                  application to the public.
set forth in § 1.17(i) are required.              Section 1.14(a) is amended to add a          Section 1.14(b) is amended to provide
   Section 1.110 is amended to change          paragraph (a)(1) to provide that patent      that complete applications (§ 1.51(a))
the reference to § 1.78(d) to a reference      applications are generally preserved in      which are abandoned may be destroyed
to § 1.130 for consistency.                    confidence pursuant to 35 U.S.C. 122,        and hence may not be available for
   The proposed addition of a new              and that no information will be given        access or copies as permitted by
§ 1.131(a)(3) is being withdrawn in this       concerning the filing, pendency, or          paragraph (a)(3)(iv) of this section after
final rule package. This proposed              subject matter of any application for        20 years from their filing date, except
change, as well as the provisions of           patent, and no access will be given to,      those to which particular attention has
former § 1.78(d), has been re-written as       or copies furnished of, any application      been called and which have been
a new § 1.130. New § 1.130(a) will             or papers relating thereto, except as set    marked for preservation. The sentence
provide a procedure for the                    forth in § 1.14.                             in § 1.14(b) concerning the non-return of
disqualification of a commonly owned              Section 1.14(a) is also amended to add    abandoned applications is deleted as
patent claiming a patentably indistinct        a paragraph (a)(2) to provide that status    duplicative of the provision in § 1.59,
but not identical invention. New               may be supplied: (1) Concerning an           which provides that papers in an
§ 1.130(b) will include the provisions of      application or any application claiming      application which has received a filing
former § 1.78(d).                              the benefit of the filing date of the        date will not be returned, and is
   Section 1.131(a) is being changed to        application, if the application has been     unrelated to the preservation of
replace the phrase ‘‘U.S. patent to            identified by application number or          applications in confidence under § 1.14.
another’’ with ‘‘U.S. patent to another or     serial number and filing date in a              Section 1.52(a) is amended to provide
others.’’                                      published patent document; (2)               that all papers which are to become a
   Section 1.154(a)(7) is being changed        concerning the national stage                part of the permanent records of the
to add ‘‘[f]eature’’ prior to                  application or any application claiming      Office must be legibly written by a
‘‘[d]escription,’’ and § 1.154(a)(8) is        the benefit of the filing date of a          typewriter or mechanical printer in
being changed to add ‘‘a single’’ prior to     published international application, if      permanent dark ink or its equivalent in
‘‘claim.’’                                     the United States of America has been        portrait orientation on flexible, strong,
   Section 1.163 is being changed to           indicated as a Designated State in the       smooth, non-shiny, durable and white
position the abstract as element ‘‘(11)’’      international application; or (3) when it    paper. Section 1.52(a) is further
following the claims, rather than              has been determined by the                   amended to provide that the application
element ‘‘(3)’’ prior to the first page of     Commissioner to be necessary for the         papers must be presented in a form
            Federal Register / Vol. 61, No. 161 / Monday, August 19, 1996 / Rules and Regulations                                    42793

having sufficient clarity and contrast          applications which do not comply with            provide metric dimensions with English
between the paper and the writing               §§ 1.52 (a) and (b), 1.58, 1.84 (c), (f), (g),   equivalents in parentheticals, rather
thereon to permit electronic                    and (x), and 1.96 as adopted in this final       than vice versa.
reproduction by use of digital imaging          rule (e.g., applications containing hand-           Section 1.62(e) is amended to change
and optical character recognition, as           written papers) create an inordinate             ‘‘application serial number’’ to
well as the direct photocopy                    administrative burden on the Office              ‘‘application number’’ for consistency
reproduction currently provided for.            during the initial processing,                   with § 1.5(a).
Section 1.52(a) is further amended to           examination, and publishing of the                  Section 1.62(f) is amended to change
provide that substitute typewritten or          application as a patent. In addition, the        ‘‘secrecy’’ to ‘‘confidence’’ as is found in
mechanically printed papers ‘‘will’’ be         Office plans to replace or augment the           35 U.S.C. 122 and § 1.14, and change
required if the original application            current microfilming process with                ‘‘37 CFR 1.14’’ to ‘‘§ 1.14’’ for
papers are not of the required quality.         electronic data capture of at least the          consistency.
As any substitute typewritten or                technical content (i.e., the specification,         Section 1.72(b) is amended to provide
mechanically printed papers containing          abstract, claims and drawings) of the            that the abstract must ‘‘commence,’’
the subject matter of the originally filed      application-as-filed for internal Office         rather than ‘‘be set forth,’’ on a separate
application papers would constitute a           use, regardless of whether H.R. 1733 is          sheet. This change will conform the
substitute specification, the provisions        enacted. Therefore, the Office will no           ‘‘separate sheet’’ requirement for the
of § 1.125 governing the entry of a             longer permit these relatively few               abstract with that for the claims.
substitute specification would be               applicants to submit application papers             Section 1.75 is amended to include an
applicable, and § 1.52(a) is amended to         and drawings that do not meet the                amendment to paragraph (g), and would
include a specific reference to § 1.125.        standards set forth in §§ 1.52 (a) and (b),      add two new paragraphs. Section 1.75(g)
   Section 1.52(b) is amended to provide        1.58, 1.84 (c), (f), (g), and (x), and 1.96      is amended to add the phrase ‘‘[t]he
that the claim or claims must commence          as adopted in this final rule.                   least restrictive claim should be
on a separate sheet and the abstract               The application format set forth in           presented as claim number 1’’ to the
must commence on a separate sheet.              §§ 1.75 (g) and (i), 1.77, 1.154, and 1.163      beginning of the paragraph. Section
Section 1.72(b) provides that the               as adopted in this final rule merely             1.75(h) is added to provide that the
abstract must commence on a separate            expresses the Office’s preferences for           claim or claims must commence on a
sheet, and § 1.75(h) provides that the          format of utility, design and plant              separate sheet. Section 1.75(i) is added
claim or claims must commence on a              applications. They do not set forth              to provide that where a claim sets forth
separate sheet. Section 1.52(b) is              mandatory requirements for application           a plurality of elements or steps, each
amended to provide that the sheets of           papers and drawings.                             element or step of the claim should be
paper must all be the same size and                Section 1.54(b) is amended to change          separated by a line indentation.
either 21.0 cm. by 29.7 cm. (DIN size           ‘‘application serial number’’ to                    Section 1.77 is amended to provide
A4) or 21.6 cm. by 27.9 cm. (81⁄2 by 11         ‘‘application number’’ for consistency           that the elements of the application, if
inches), with a top margin of at least 2.0      with § 1.5(a).                                   applicable, should appear in the
cm. (3⁄4 inch), a left side margin of at           Section 1.58(b) is removed and is             following order: (1) Utility Application
least 2.5 cm. (1 inch), a right side            reserved as unnecessary in view of the           Transmittal Form; (2) Fee Transmittal
margin of at least 2.0 cm. (3⁄4 inch), and      amendments to §§ 1.52 (a) and (b).               Form; (3) title of the invention; or an
a bottom margin of at least 2.0 cm. (3⁄4           Section 1.58(c) is amended to provide         introductory portion stating the name,
inch), and that no holes should be made         that chemical and mathematical                   citizenship, and residence of the
in the submitted paper sheets. Section          formulae and tables must be presented            applicant, and the title of the invention;
1.52(b) is further amended to provide           in compliance with §§ 1.52 (a) and (b),          (4) cross-reference to related
that the lines of the specification, and        except that chemical and mathematical            applications; (5) statement regarding
any amendments to the specification,            formulae or tables may be placed in a            federally sponsored research or
‘‘must’’ be 11⁄2 or double spaced, and          landscape orientation if they cannot be          development; (6) reference to a
that the pages of the specification             presented satisfactorily in a portrait           ‘‘Microfiche appendix; (7) background
‘‘must’’ be numbered consecutively,             orientation. Section 1.58(c) is further          of the invention; (8) brief summary of
starting with page one, with the                amended to delete the following                  the invention; (9) brief description of
numbers being centrally located above           sentences to conform to the writing and          the several views of the drawing; (10)
or below the text. Finally, § 1.52(b) is        paper size and orientation limitations in        detailed description of the invention;
amended to specifically reference               §§ 1.52 (a) and (b): (1) ‘‘[t]o facilitate       (11) claim or claims; (12) abstract of the
drawings to clarify that drawings are           camera copying when printing, the                disclosure; (13) drawings; (14) executed
part of the application papers, but that        width of formulas and tables as                  oath or declaration; and (15) sequence
the standards for drawings are set forth        presented should be limited normally to          listing.
in § 1.84.                                      12.7 cm. (5 inches) so that it may appear           The phrase ‘‘if applicable’’ is inserted
   The proposed changes to §§ 1.52 (a)          as a single column in the printed                in the heading, rather than associated
and (b), 1.58, 1.72(b), 1.75 (g), (h), and      patent’’; (2) ‘‘[i]f it is not possible to       with any particular listed element, to
(i), 1.77, 1.84 (c), (f), (g), and (x), 1.96,   limit the width of a formula or table to         clarify that § 1.77 does not per se require
1.154, and 1.163 pertaining to the              5 inches (12.7 cm.), it is permissible to        that an application include all of the
format and standards for application            present the formula or table with a              listed elements, but merely provides
papers and drawings in the Notice of            maximum width of 103⁄4 inches (27.3              that any listed element included in the
Proposed Rulemaking are considered              cm.) and to place it sideways on the             application should appear in the order
desirable, regardless of whether H.R.           sheet’’; and (3) ‘‘[h]and lettering must be      set forth in § 1.77. Section 1.77 is further
1733 is enacted.                                neat, clean, and have a minimum                  amended to provide that the (1) title of
   While the vast majority of                   character height of 0.08 inch (2.1 mm.).’’       the invention; (2) cross-reference to
applications currently comply with              Section 1.58(c) is further amended to            related applications; (3) statement
§§ 1.52 (a) and (b), 1.58, 1.72(b), 1.75(h),    insert ‘‘chosen’’ between ‘‘must be’’ and        regarding federally sponsored research
1.84 (c), (f), (g), and (x), and 1.96 as        ‘‘from a block (nonscript) type font.’’          or development; (4) background of the
adopted in this final rule, those               Section 1.58(c) is further amended to            invention; (5) brief summary of the
42794       Federal Register / Vol. 61, No. 161 / Monday, August 19, 1996 / Rules and Regulations

invention; (6) brief description of the       a sight no greater than 17.0 cm. by 26.2      ‘‘should’’ to ‘‘must’’; (3) delete the
several views of the drawing; (7)             cm. on 21.0 cm. by 29.7 cm. (DIN size         sentence ‘‘[a]ll computer program
detailed description of the invention; (8)    A4) drawing sheets, and a sight no            listings submitted on paper will be
claim or claims; (9) abstract of the          greater than 17.6 cm. by 24.4 cm. (615⁄16     printed as part of the patent’’; (4)
disclosure; and (10) sequence listing,        by 95⁄8 inches) on 21.6 cm. by 27.9 cm.       relocate the phrase ‘‘except as modified
should appear in upper case, without          (81⁄2 by 11 inch) drawing sheets.             or clarified below’’ in subsection (c)(2);
underlining or bold type, as section             Section 1.84(x) is amended to delete       (5) change the phrase ‘‘computer-
headings, and if no text follows the          the provisions indicating the proper          generated information submitted as an
section heading, the phrase ‘‘Not             location for holes in a drawing sheet,        appendix to an application for patent
Applicable’’ should follow the section        and provide that no holes should be           shall be in the form of microfiche in
heading. Finally, § 1.77 is amended to        provided in the drawing sheets.               accordance with the standards’’ to
change the reference to § 1.96(b) in             Section 1.96 is amended to designate       ‘‘computer-generated information
§ 1.77(a)(6) to § 1.96(c) for consistency     the text preceding current paragraph (a)      submitted as a ‘microfiche appendix’ to
with § 1.96.                                  as paragraph (a) ‘‘General,’’ and would       an application shall be in accordance
   Section 1.78(a)(2) is amended to           redesignate current paragraphs (a) and        with the standards’’ for clarity; (6)
replace the reference to § 1.14(b) with a     (b) as paragraphs (b) and (c),                change the references to the specific
reference to § 1.14(a) for consistency        respectively. New § 1.96(a) is further        American National Standards Institute
with §§ 1.14 (a) and (b) as amended.          amended to insert a period between            (ANSI) or National Micrographics
   Section 1.78(c) is amended to change       ‘‘specification’’ and ‘‘[a] computer,’’ to    Association (NMA) standards with 36
‘‘two or more applications, or an             change ‘‘these rules’’ to ‘‘this section,’’   CFR Part 1230; (7) change ‘‘serial
application and a patent’’ to ‘‘an            and to change ‘‘may be submitted in           number’’ to ‘‘application number’’; and
application or a patent under                 patent applications in the following          (8) provide metric dimensions with
reexamination and at least one other          forms’’ to ‘‘may be submitted in patent       English equivalents in parentheticals,
application’’ such that the provisions of     applications as set forth in paragraphs       rather than vice versa.
§ 1.78(c) will also be applicable to a        (b) and (c) of this section.’’                   Section 1.97(a) is amended to include
patent under reexamination. Section              New § 1.96(b) is further amended to:       the phrase ‘‘for an applicant for patent
1.78(c) is also amended to correct            (1) Change the sentences ‘‘[t]he listing      or for reissue of a patent.’’ Paragraphs
‘‘inventors and owned by the same party       may be submitted as part of the               (a)–(d) are amended to include the
contain conflicting claims’’ to read          specification in the form of computer         phrase ‘‘by the applicant’’ to clarify that
‘‘inventors are owned by the same party       printout sheets (commonly 14 by 11            § 1.97 is not available for any third party
and contain conflicting claims.’’ Section     inches in size) for use as ‘camera ready      seeking to have information considered
1.78(c) is also amended to delete the         copy’ when a patent is subsequently           in a pending application. Any third
sentence ‘‘[i]n addition to making said       printed’’ and ‘‘[s]uch computer printout      party seeking to have information
statement, the assignee may also explain      sheets must be original copies from the       considered in a pending application
why an interference should or should          computer with dark solid black letters        must proceed under §§ 1.291 or 1.292.
not be declared.’’                            not less than 0.21 cm. high, on white,        As discussed supra, §§ 1.97 (a), (c) and
   Section 1.78(d) is removed. The            unshaded and unlined paper, the               (d) are also being amended for clarity.
provisions of former § 1.78(d), as            printing on each sheet must be limited        Section 1.97(c) is further amended to
proposed, are in new § 1.130(b).              to an area 9 inches high by 13 inches         correct the phrase ‘‘certification as
   Section 1.84(c) is amended to provide      wide, and the sheets should be                specified in paragraph (3) of this
that a reference to the application           submitted in a protective cover’’ to          section’’ to read ‘‘certification as
number, or, if an application number          ‘‘[a]ny listing submitted as part of the      specified in paragraph (e) of this
has not been assigned, the inventor’s         specification must be direct printouts        section.’’
name, may be included in the left-hand        (i.e., not copies) from the computer’s           Section 1.107 is amended to delete
corner of the drawing sheet, provided         printer with dark solid black letters not     the phrase ‘‘and the classes of
that reference appears within 1.5 cm.         less than 0.21 cm. high, on white,            inventions.’’
(9⁄16 inch) from the top of the sheet.        unshaded and unlined paper, and the              Section 1.110 is amended to change
   Section 1.84(f) is amended to provide      sheets should be submitted in a               the reference to § 1.78(d) to a reference
that the size of all drawing sheets in an     protective cover’’; (2) delete the            to § 1.130 for consistency with the
application must be either 21.0 cm. by        sentence ‘‘[w]hen printed in patents,         removal of § 1.78(d), and the location of
29.7 cm. (DIN size A4) or 21.6 cm. by         such computer printout sheets will            the provisions of former § 1.78(d) in
27.9 cm. (81⁄2 by 11 inches) to conform       appear at the end of the description but      § 1.130(b).
to the requirement in § 1.52(b)               before the claims and will usually be            A new paragraph (a)(3) in § 1.131 was
concerning papers in an application.          reduced about 1/2 in size with two            proposed in the Notice of Proposed
   Section 1.84(g) is amended to delete       printout sheets being printed as one          Rulemaking to permit a showing of prior
the margin requirements for the sheet         patent specification page’’; and (3)          invention in a pending application or
sizes that are no longer acceptable in        delete the phrase ‘‘if the copy is to be      patent under reexamination to avoid a
view of the changes to § 1.84(f). Section     used for camera ready copy.’’ New             rejection under 35 U.S.C. 103 based
1.84(g) is further amended to provide         § 1.96(b)(1) provides that the                upon a patent which qualifies as prior
that the sheets should have scan targets      requirements of § 1.84 apply to               art only under 35 U.S.C. 102 (a) or (e),
(cross-hairs) on two catercorner margin       computer program listings submitted as        where the application or patent under
corners. Finally, § 1.84(g) is amended to     sheets of drawings, and new § 1.96(b)(2)      reexamination and the patent upon
increase the bottom and side margins          provides that the requirements of § 1.52      which the rejection is based are both
such that each sheet must include a top       apply to computer program listings            owned by a single party, so long as the
margin of at least 2.5 cm. (1 inch), a left   submitted as part of the specification.       invention claimed in the pending
side margin of at least 2.5 cm. (1 inch),        New § 1.96(c) is amended to: (1)           application or patent under
a right side margin of at least 1.5 cm.       Change the references to § 1.77(c)(2) in      reexamination and in the other patent
(9⁄16 inch), and a bottom margin of at        § 1.96(c) to § 1.77(a)(6) for consistency     are not identical as set forth in 35 U.S.C.
least 1.0 cm. (3⁄8 inch), thereby leaving     with § 1.77; (2) change ‘‘may’’ and           102. Upon further study, it is considered
            Federal Register / Vol. 61, No. 161 / Monday, August 19, 1996 / Rules and Regulations                               42795

appropriate to disqualify such patents,       804(II) of the Manual of Patent               § 1.154 does not per se require that an
and provide for the obviation of              Examining Procedure (MPEP)), and              application include all of the listed
judicially created double patenting           either may be obviated by filing a            elements, but merely provides that any
rejections in an application or a patent      terminal disclaimer in accordance with        listed element included in the
under reexamination by the filing of a        § 1.321(c). The phrase ‘‘non-statutory        application should appear in the order
terminal disclaimer in accordance with        double patenting rejection,’’ however, is     set forth in § 1.154. This amendment to
§ 1.321(c), in a separate § 1.130.            being replaced with ‘‘judicially created      § 1.154, however, does not modify the
   New § 1.130(a) provides that when          double patenting rejection’’ to better set    current requirement that an application
any claim of an application or a patent       forth the legal basis for the rejection.      for a design patent have but a single
under reexamination is rejected under            Section 1.78(d) was also proposed to       claim.
35 U.S.C. 103 on a U.S. patent to             be amended to change each instance of            A new § 1.163(c) is added to provide
another or others which is not prior art      ‘‘application’’ to ‘‘application or a         that the elements of a plant application,
under 35 U.S.C. 102(b), and the               patent under reexamination’’ for              if applicable, should appear in the
inventions defined by the claims in the       consistency with § 1.321 and to clarify       following order: (1) Plant Application
application or patent under                   that double patenting is a proper             Transmittal Form; (2) Fee Transmittal
reexamination and by the claims in the        consideration in reexamination (Ex            Form; (3) title of the invention; (4) cross-
patent are patentably indistinct but not      parte Obiaya, 227 USPQ 58, 60–61 (Bd.         reference to related applications; (5)
identical as set forth in 35 U.S.C. 101,      Pat. App. & Inter. 1985)), and that a         statement regarding federally sponsored
and the inventions are owned by the           judicially created double patenting           research or development; (6)
same party, the applicant or owner of         rejection in a patent under                   background of the invention; (7) brief
the patent under reexamination may            reexamination may be obviated by filing       summary of the invention; (8) brief
disqualify the patent as prior art.           a terminal disclaimer in accordance           description of the drawing; (9) detailed
Section 1.130(a) specifically provides        with § 1.321(c).                              botanical description; (10) a single
that the patent can be disqualified as           New § 1.130(b) specifically provides       claim; (11) abstract of the disclosure;
prior art by submission of: (1) A             that where an application or a patent         (12) drawings (in duplicate); (13)
terminal disclaimer in accordance with        under reexamination claims an                 executed oath or declaration; and (14)
§ 1.321(c), and (2) an oath or declaration    invention which is not patentably             Plant Color Coding Sheet. The phrase
stating that the application or patent        distinct from an invention claimed in a       ‘‘if applicable’’ is included in the
under reexamination and the patent are        commonly owned patent with the same           heading, rather than associated with any
currently owned by the same party, and        or a different inventive entity, a double     particular listed element, to clarify that
that the inventor named in the                patenting rejection will be made in the       § 1.163 does not per se require that an
application or patent under                   application or a patent under                 application include all of the listed
reexamination is the prior inventor           reexamination, and that a judicially          elements, but merely provides that any
under 35 U.S.C. 104.                          created double patenting rejection may        listed element included in the
   Where inventions defined by the            be obviated by filing a terminal              application should appear in the order
rejected claims in the application or a       disclaimer in accordance with                 set forth in § 1.163. This amendment to
patent under reexamination and by the         § 1.321(c).                                   § 1.163, however, does not modify the
claims in the patent upon which the              Section 1.131 is amended to change         current requirement that an application
rejection is based are patentably             ‘‘U.S. patent to another’’ to ‘‘U.S. patent   for a plant patent have but a single
distinct, the rejection may be overcome       to another or others’’ to parallel the        claim.
pursuant to § 1.131. Since § 1.130            language in 35 U.S.C. 102(a), as well as         A new § 1.163(d) is added to define a
applies only when inventions defined          35 U.S.C. 102(e).                             plant color coding sheet. A plant color
by the claims in an application or a             Section 1.132 is amended to change         coding sheet is a sheet that specifies a
patent under reexamination and by the         ‘‘domestic patent’’ to ‘‘U.S. patent,’’ and   color coding system as designated in a
claims in the patent are patentably           ‘‘does not claim the invention’’ to ‘‘does    color dictionary, and lists every plant
indistinct, § 1.130 expressly provides        not claim the same patentable                 structure to which color is a
that an oath or declaration submitted         invention, as defined in § 1.601(n)’’ for     distinguishing feature and the
pursuant to § 1.130 to disqualify a           consistency with § 1.131.                     corresponding color code which best
patent must be accompanied by a                  Section 1.154 is amended to provide        represents that plant structure. The
terminal disclaimer in accordance with        that the elements of a design                 plant color coding sheet will provide a
§ 1.321(c).                                   application, if applicable, should appear     means for applicants to uniformly
   As the conflict between two pending        in the following order: (1) Design            convey detailed color characteristics of
applications can be avoided by filing a       Application Transmittal Form; (2) Fee         the plant. Providing this information in
continuation-in-part application              Transmittal Form; (3) preamble, stating       a systematic manner will facilitate the
merging the conflicting inventions into       name of the applicant and title of the        examination of the application.
a single application, § 1.130 is limited to   design; (4) cross-reference to related           Section 1.291 is amended to provide
rejections based upon a patent.               applications; (5) statement regarding         that a protest must be filed prior to the
   New § 1.130(b) includes the                federally sponsored research or               mailing of a Notice of Allowance to be
provisions of former § 1.78(d), as            development; (6) description of the           considered timely. As a protest cannot
proposed in the Notice of Proposed            figure or figures of the drawing; (7)         be considered subsequent to issuance of
Rulemaking. Former § 1.78(d) was              feature description; (8) a single claim;      the application as a patent, § 1.291(b) is
proposed to be amended to change              (9) drawings or photographs; and (10)         amended to provide that the protest will
‘‘obviousness-type double patenting           executed oath or declaration. The             be considered if the application is still
rejection’’ to ‘‘non-statutory double         phrase ‘‘[t]he following order of             pending when the protest and
patenting rejections’’ as current             arrangement should be observed in             application file are provided to the
examining procedures authorize non-           framing design specifications’’ is            examiner (i.e., that the application was
obviousness-type double patenting             changed to ‘‘[t]he elements of the design     pending at the time the protest was filed
rejections, as well as obviousness-type       application, if applicable, should appear     would be immaterial to its ultimate
double patenting rejections (See section      in the following order’’ to clarify that      consideration). Finally, the sentences
42796       Federal Register / Vol. 61, No. 161 / Monday, August 19, 1996 / Rules and Regulations

‘‘[p]rotests raising fraud or other           inventor and the country of citizenship       Response to Comments
inequitable conduct issues will be            of each inventor, and (4) states that the       Two hundred and forty-two written
entered in the application file, generally    person making the oath or declaration         comments were received in response to
without comment on those issues’’ and         believes the named inventor or                the Notice of Proposed Rulemaking. A
‘‘[p]rotests which do not adequately          inventors to be the original and first        public hearing was held on September
identify a pending patent application         inventor or inventors of the subject          19, 1995. Eight persons testified at the
will be disposed of and will not be           matter which is claimed and for which         public hearing.
considered by the Office’’ in § 1.291 are     a patent is sought, rather than an oath         The written comments, and the
changed to ‘‘[p]rotests raising fraud or      or declaration in accordance with § 1.63,     testimony at the public hearing, have
other inequitable conduct issues will be      to enter the national stage pursuant to       been analyzed. In the event that H.R.
entered in the application file, generally    §§ 1.494 or 1.495. Currently, the failure     1733 is enacted, the comments directed
without comment on those issues’’ and         to file an oath or declaration in strict      to the proposed changes to the rules of
‘‘[p]rotests which do not adequately          compliance with § 1.63 results in non-        practice to implement the 18-month
identify a pending patent application         compliance with § 1.497, and thus 35          publication of patent applications will
will be returned to the protestor and         U.S.C. 371, which in turn delays the
                                                                                            be considered and addressed in the final
will not be further considered by the         entry of the international application
                                                                                            rule package to implement 18-month
Office,’’ respectively, and are located in    into the national stage. To expedite the
                                                                                            publication. Responses to the comments
paragraph (b). The Office will                entry of international applications into
                                                                                            germane to the changes in this final rule
acknowledge protests prior to their           the national stage, § 1.497(a) is amended
                                                                                            package follow.
entry into the application file or return     to require only an oath or declaration
                                                                                              Comment (1): One comment suggested
to the protestor, as appropriate.             that is properly executed, identifies the
   Section 1.292 is amended to delete                                                       that, in the absence of an 18-month
                                              specification to which it is directed,
the phrase ‘‘is filed by one having                                                         publication system, the proposed rules
                                              and, as required by 35 U.S.C. 115,
information of the pendency of an                                                           relating to application format and
                                              identifies each inventor and the country
application’’ as unnecessary, and would                                                     standardization of applications be
                                              of citizenship of each inventor and
move the requirement for the fee set                                                        republished to give the public an
                                              states that the person making the oath
forth in § 1.17(j) from paragraph (a) to                                                    opportunity to comment on the
                                              or declaration believes the named
paragraph (b) where the conditions for                                                      desirability of these changes in the
                                              inventor or inventors to be the original
entry of a petition for the institution of    and first inventor or inventors of the        absence of an 18-month publication
public use proceedings are set forth.         subject matter which is claimed and for       system.
Section 1.292 is amended to further                                                           Response: The Notice of Proposed
                                              which a patent is sought.
require that any petition be served on           Section 1.497(b) is subdivided into        Rulemaking specifically stated that the
the applicant in accordance with              paragraphs (b)(1) and (b)(2). Section         proposed rules relating to application
§ 1.248, or be filed with the Office in       1.497(b)(1) is amended to provide that        format and standardization of
duplicate in the event that service on        the oath or declaration must be made by       applications may be adopted as final
the applicant is not possible. Finally,       all of the actual inventors except as         rules even in the absence of an 18-
§ 1.292 is amended to provide that a          provided for in §§ 1.42, 1.43 or 1.47.        month publication system, and
petition to institute public use              Section 1.497(b)(2) is amended to             specifically advised interested members
proceedings to be considered timely           change ‘‘[i]f the international               of the public to comment on the
must be filed prior to the mailing of a       application was made as provided in           advisability of the proposed rules
Notice of Allowance.                          §§ 1.422, 1.423 or 1.425, the applicant       relating to application format and
   Section 1.315 is amended to change         shall state his or her relationship to the    standardization of applications,
‘‘the attorney or agent of record, if there   inventor and, upon information and            regardless of the legislative action on
be one; or if the attorney or agent so        belief, the facts which the inventor is       H.R. 1733. Thus, the public was given
request, to the patentee or assignee of an    required by § 1.63 to state’’ to ‘‘[i]f the   an opportunity to comment on the
interest therein; or, if there be no          person making the oath or declaration is      desirability of these changes in the
attorney or agent, to the patentee or to      not the inventor, the oath or declaration     absence of an 18-month publication
the assignee of the entire interest, if he    shall state the relationship of the person    system. Because the standardization of
so request’’ to ‘‘the correspondence          to the inventor, the facts required by        applications is generally favored and
address of record. See § 1.33(a).’’ This      §§ 1.42, 1.43 or 1.47, and, upon              will substantially improve the Office’s
change is to simplify § 1.315, and            information and belief, the facts which       ability to efficiently and effectively
because patents are currently mailed to       the inventor would have been required         process applications, delaying their
the patentee at the correspondence            to state.’’                                   adoption as final rules is not justified.
address of record.                               Section 1.497(c) is added to provide         Comment (2): One comment stated
   Section 1.321(c) is amended to change      that the oath or declaration must             that the Office has the authority to
‘‘double patenting rejection’’ to             comply with the requirements of § 1.63.       require that applications be submitted
‘‘judicially created double patenting         Section 1.497(c) further provides that in     in computer-readable form, and in fact
rejection’’ for consistency with § 1.78(c)    instances where the oath or declaration       requires sequence listings to be
and to clarify that the filing of a           does not comply with § 1.63, but meets        submitted in such form. The comment
terminal disclaimer is ineffective to         the requirements of § 1.497 (a) and (b),      suggested that the cost of electronically
overcome a statutory double patenting         the oath or declaration will be accepted      scanning application papers, as well as
rejection.                                    as complying with 35 U.S.C. 371(c)(4)         errors in scanning the application
   Section 1.497(a) is amended to             and §§ 1.494(c) or 1.495(c), thus             papers, can be avoided by requiring
provide that an applicant in an               permitting the application to enter the       applicants to provide the specification
international application must file an        national stage and the assignment of          in computer-readable form. Another
oath or declaration that: (1) Is executed     dates under 35 U.S.C. 102(e) and 371(c).      comment stated that the Office has the
in accordance with either §§ 1.66 or          A supplemental oath or declaration in         authority to permit electronic filing, and
1.68, (2) identifies the specification to     compliance with § 1.63, however, will         electronic filing should be permitted.
which it is directed, (3) identifies each     be required in accordance with § 1.67.        Several other comments indicated that
           Federal Register / Vol. 61, No. 161 / Monday, August 19, 1996 / Rules and Regulations                            42797

scanning an application into a data base,    Applicants are encouraged, but not               Response: The phrase ‘‘printed’’ was
rather than permitting applicants to         required, to number the lines of the          proposed to be deleted since it could be
provide a copy of the application on an      specification. The Office will give the       read to mean that hand-printing is
electronic medium, is more costly, and       suggestion further study and                  acceptable. Section 1.52(a) will require,
is further more likely to introduce errors   consideration in future rulemaking.           in part, that ‘‘[a]ll papers which are to
that could render text searching                Comment (5): One comment noted             become a part of the permanent records
unreliable. And, several comments            that when paragraphs are separated by         of the Patent and Trademark Office must
suggested that the scanning and              a blank line only (i.e., no indentation)      be legibly written either by a typewriter
typesetting costs associated with the        and end between pages, it is not              or mechanical printer in permanent
current publication process for issued       possible to tell that a paragraph break       dark ink or its equivalent in portrait
patents could be reduced by the              occurred. The comment suggested that          orientation on flexible, strong, smooth,
acceptance of electronic media in place      the application format requirements           non-shiny, durable, and white paper.’’
of or in addition to the paper medium        should additionally require an                This will clarify that papers printed by
currently provided for in the rules of       indentation at the beginning of each          a computer-operated laser, or any
practice. These comments further             new paragraph.                                mechanical printer are acceptable, but
suggested that the Office should                Response: It is desirable that a           that hand-printed papers are not. This
establish fees that reflect the reduced      specification include an indentation at       change will also avoid inconsistencies
cost to the Office when a copy of an         the beginning of a new paragraph. This        with the requirements of PCT Rule 11.9.
application is provided on an electronic     requirement, however, was not                    Comment (8): One comment noted
medium (i.e., should establish reduced       proposed for comment in the Notice of         that the proposed changes to § 1.52(a)
fees for those who submit a copy of their    Proposed Rulemaking. In addition, PCT         did not include any limitations
application on an electronic medium),        Rule 11 does not require that the             regarding permissible type fonts. The
which fee structure would provide an         beginning of each new paragraph in the        comment questioned, since the purpose
incentive to supply a copy of an             specification be indented.                    of the proposed rule change was to
application on an electronic medium.            Comment (6): One comment noted             permit optical character recognition
   Response: As discussed in the Notice      that § 1.52(a) would prohibit                 (OCR) scanning of the application
of Proposed Rulemaking, while the            handwriting or hand-printing on papers        papers, whether script fonts would be
Office is considering the legislative and                                                  permissible.
                                             which are to become permanent Office
regulatory changes that would be                                                              Response: Section 1.52(a) does not
                                             records. The comment questioned
necessary to permit purely electronic
                                             whether this requirement would also           include any express prohibition against
filing of application papers, it does not
                                             apply to papers issued in the Office. The     the use of script fonts. Nevertheless,
currently have in place an automated
                                             comment suggested revising Office             § 1.52(a) requires that ‘‘the application
system for the acceptance and
                                             practice to prohibit an examiner from         papers must be presented in a form
processing of application papers in
                                             handwriting comments on official              having sufficient clarity and contrast
electronic form, other than for sequence
                                             papers (e.g., advisory actions or             between the paper and the writing
listings. Moreover, the Office does not
                                             interview summary records) because: (1)       thereon to permit * * * electronic
currently have the statutory authority to
                                             The handwriting is not always                 reproduction by use of digital imaging
rebate statutory patent filing fees to
                                             decipherable, and (2) the handwriting as      and optical character recognition.’’ Any
reflect any reduced cost to the Office
due to the submission of a copy of an        it comes through on the carbon copies         application papers, including
application on an electronic medium.         furnished to applicants is frequently too     application papers containing a script
The Office will give the comments            light at least in part to be decipherable.    font, that are not in a form having
further consideration as it designs and         Response: The Office’s goal is to          sufficient clarity and contrast between
develops the Patent Application              create a readable administrative record       the paper and the writing thereon to
Management (PAM) system.                     of the prosecution of every application.      permit electronic reproduction by use of
   Comment (3): Several comments             The Office is currently designing,            digital imaging and optical character
noted that §§ 1.52 (a) and (b) impose a      testing and implementing electronic           recognition will be objected to as not in
standard on applicants not currently         forms and Office action writing software      compliance with § 1.52(a). Therefore,
observed by the Office, and questioned       to avoid or minimize the need for hand-       the Office cautions applicants not to
whether papers in the application file       writing/printing in Office                    submit application papers having script
prepared by the Office will comply with      communications. Any applicant                 fonts.
§§ 1.52 (a) and (b).                         receiving an Office communication in             Comment (9): One comment noted
   Response: Sections 1.52 (a) and (b)       which the handwriting is not                  that § 1.52(b) would require that all
apply to the application papers, and         decipherable, or does not adequately          papers (including drawings per
amendments or corrections thereto. As        appear on the carbon copies to be             proposed § 1.84) be limited to either
such, §§ 1.52 (a) and (b) do not apply to    decipherable, should request a legible        DIN size A4 or 81⁄2 by 11 inches, which
those papers in the application file         copy of such communication from the           would eliminate the currently allowed
prepared by the Office, since they do        Office.                                       paper sizes of 81⁄2 by 13 or 14 inches.
not become part of the printed patent.          Comment (7): Several comments              The comment questioned whether this
   Comment (4): One comment noted            noted that the limitations in § 1.52 (a)      would also apply to the official papers
that proposed § 1.52 appears to be           and (b) regarding ‘‘typed’’ and ‘‘ink’’       issued by the Office, noting that the
neutral with regard to numbering the         appear to exclude computer and laser          Office currently issues papers having a
lines (e.g., a line number every five        printers, as well as commercially or          paper size mix of 81⁄2 by 11, 13, and 14
lines) of the specification, and suggested   mechanically printed papers such as           inches, which presents problems for
that line numbering is a beneficial          declaration forms. Another comment            applicants. The comment suggested that
practice which should be permitted, and      noted that the limitations in §§ 1.52 (a)     the Office should not issue papers of a
even encouraged.                             and (b) regarding ‘‘typed’’ and ‘‘ink’’ are   size not permitted in § 1.52.
   Response: Section 1.52 neither            more restrictive than PCT Rule 11.9 (a)          Response: The Office is currently in
requires nor prohibits line numbering.       and (d).                                      the process of standardizing to either
42798       Federal Register / Vol. 61, No. 161 / Monday, August 19, 1996 / Rules and Regulations

21.0 cm. by 29.7 cm. (DIN size A4) or          the oath or declaration, as well as               Response: Section 1.72, as proposed
21.6 cm. by 27.9 cm. (81⁄2 by 11 inches).      quotations from the rules, the MPEP,           in the Notice of Proposed Rulemaking,
   Comment (10): One comment                   and court decisions in subsequently            provided that the abstract be ‘‘preferably
suggested that the Office should not           filed amendments, be 11⁄2 or double            prior to the first page of the
issue papers with writing on the back          spaced, and is inconsistent with the           specification,’’ and, as such, merely
side in accordance with § 1.52(b).             forms included for comment with the            expressed the Office’s preference for the
   Response: The Office currently              Notice of Proposed Rulemaking.                 location of the abstract as prior to the
includes informational language on the            Response: Section 1.52(b) has been          first page of the specification.
back side of certain forms. The                changed to require, inter alia, that ‘‘[t]he   Nevertheless, to avoid the undesirable
alternatives to issuing such forms with        lines of the specification, and any            result of requiring an applicant who
writing on the back side are: (1) Not          amendments to the specification, must          submitted an application in the format
providing this information to                  be 11⁄2 or double spaced.’’ The                set forth in § 1.77 to renumber the
applicants, (2) reducing the print size to     requirement for 11⁄2 or double spacing         specification pages for filing that
permit all of the information to be            will not apply to oaths or declarations,       application in the EPO or under the
located on the front of the form, or (3)       pre-printed forms, or all of the               PCT, § 1.72 is changed to state that the
routinely providing multiple page              statements in the ‘‘Remarks’’ section of       preferable location of the abstract is
forms. Since none of the alternatives are      an amendment. Applicants are                   following the claims.
preferable to simply including                 nevertheless requested to submit papers           Comment (17): One comment stated
informational language on the back side        with lines 11⁄2 or double spaced, except       that requiring that the rarely used
of certain forms, the Office will              in standardized forms or where single-         section headings (e.g., statement
continue to include information                spacing may be stylistically necessary         regarding federally sponsored research
language on the back of papers issued          (e.g., block quotations).                      and development) be followed by the
by the Office, until it fully transforms all      Comment (14): One comment                   phrase ‘‘not-applicable’’ is confusing.
of its forms to electronically generated                                                         Response: Section 1.77 is permissive
                                               questioned whether the requirement in
forms.                                                                                        rather than mandatory. As such, any
                                               § 1.52(b), as proposed, that papers have
   Comment (11): One comment                                                                  applicant finding the format suggested
questioned whether the phrase ‘‘claims         lines 11⁄2 or double spaced will apply to
                                                                                              therein to be confusing is at liberty to
on a separate sheet’’ in § 1.52(b) means       Office actions. The comment suggested
                                                                                              simply include those section headings
that: (1) All of the claims must appear        that not placing block quotations from
                                                                                              applicable to the particular application.
on a single separate sheet, (2) each claim     the statutes and regulations in single
                                                                                              The use of each section heading, even
must appear on a separate sheet, or (3)        spacing will decrease the readability of
                                                                                              when the section is ‘‘not-applicable,’’ is
the claims (claim 1) must begin or             Office actions.
                                                                                              desirable in that it apprises the Office
commence on a separate sheet. The                 Response: As discussed supra, §§ 1.52       that the section at issue has been
comment suggested the PCT wording              (a) and (b) are designed to facilitate         considered and deemed inapplicable.
that the claims shall commence on a            patent printing and do not apply to            Simply not providing a section heading
separate sheet if the rule is intended to      Office actions. Section 1.52(b) has been       is ambiguous as to whether the
require that the claims (claim 1) must         changed to require, inter alia, that ‘‘[t]he   applicant considers the section
begin or commence on a separate sheet.         lines of the specification, and any            inapplicable or has not considered
   Response: The phrase has been               amendments to the specification, must          whether the section is applicable to the
changed to ‘‘the claim or claims               be 11⁄2 or double spaced.’’ Therefore, the     application. In addition, the use of such
commencing on a separate sheet’’ to            requirement for 11⁄2 or double spaced          section headings will be of greater
clarify that the claims must begin or          lines will not apply to Office actions.        benefit when the Office implements
commence on a separate sheet to                   Comment (15): Several comments              procedures to permit the electronic
parallel PCT requirements. Thus,               objected to the requirement that tables        filing of patent applications.
§§ 1.52(b) and 1.75(h) require that the        be in portrait orientation as inconsistent        Comment (18): One comment stated
claims (claim 1) must begin or                 with PCT rules, and as causing tables to       that the requirements set forth in § 1.77
commence on a separate sheet. Sections         be split over multiple pages.                  are in addition to those required by the
1.52(b) and 1.75(h) do not require that           Response: The suggestions are               PCT. The comment argued that the
all of the claims be set forth on a single     adopted. Section 1.58 will state that          Office cannot require international
sheet, or that each claim be set forth on      ‘‘[c]hemical and mathematical formulae         applications entering the national stage
a separate sheet.                              and tables must be presented in                under 35 U.S.C. 371 to comply with
   Comment (12): One comment                   compliance with §§ 1.52 (a) and (b),           these requirements.
questioned whether the phrase ‘‘abstract       except that chemical and mathematical             Response: As discussed supra, § 1.77
and claims on a separate sheet’’ in            formulae or tables may be placed in a          merely expresses the Office’s preference
§ 1.52(b) means that the abstract is to be     landscape orientation if they cannot be        for the arrangement of the application
on one separate sheet, and the claims          presented satisfactorily in a portrait         elements. The Office may advise an
are to be (or commence) on another             orientation,’’ rather than ‘‘[t]o facilitate   applicant that the application does not
separate sheet.                                camera copying when printing, the              comply with the format set forth in
   Response: The phrase has been               width of formulae and tables as                § 1.77, and suggest this format for the
changed to ‘‘the claim or claims               presented should be limited normally to        applicant’s consideration; however, the
commencing on a separate sheet and             12.7 cm. (5 inches) so that it may appear      Office will not require any application
abstract commencing on a separate              as a single column in the printed              to comply with the format set forth in
sheet’’ to clarify that the claims must        patent.’’                                      § 1.77. Therefore, there is no conflict
commence on one separate sheet and                Comment (16): One comment stated            between § 1.77 and the PCT.
the abstract must commence on another          that § 1.72 is contrary to PCT Rule               Comment (19): One comment noted
separate sheet.                                11.4(a), and will require renumbering of       that §§ 1.154 and 1.163 apply to design
   Comment (13): One comment noted             the application pages for later filing of      and plant applications, and, as such,
that the requirement in § 1.52(b), as          that application in the European Patent        they are not in conflict with PCT Rules.
proposed, will require that the lines in       Office (EPO) or under the PCT.                 The comment suggested that it would,
           Federal Register / Vol. 61, No. 161 / Monday, August 19, 1996 / Rules and Regulations                             42799

however, be preferable that all types of    the Office. The patent statutes and              Comment (25): One comment stated
U.S. applications maintain the same         regulations set forth the requirements        that the term ‘‘catercorner’’ is slang, and
order of application elements, and that     for a complete application, as well as        suggested that it be replaced in § 1.84(g)
this order be the order set forth by the    the requirements for obtaining a filing       with a phrase such as ‘‘diagonally
PCT Rules.                                  date in an application. Applications are      opposite.’’
   Response: As discussed supra, the        examined for compliance with the                 Response: The term ‘‘catercorner’’ is
arrangement of the elements of an           patent statutes and regulations, not for      not slang. While there are a number of
application set forth in § 1.77 is not      consistency with any particular               acceptable English phrases to denote
mandatory, and, as such, § 1.77 is not in   transmittal form.                             diagonally opposite, the term
conflict with the PCT or PCT Rules.            Comment (23): One comment noted,           ‘‘catercorner’’ was selected to avoid
Section 1.77 merely expresses the           in regard to § 1.84(c), that the drawings     using a multiple word phrase where a
Office’s preference for the arrangement     of an international application, which        single word will suffice.
of the elements of an application. The      are often used for processing in the             Comment (26): One comment stated
Office’s preference for the format of       Office, will have the World                   that the language proposed to be added
design applications (§ 1.154) and plant     Organization (WO) publication number          to § 1.97 regarding a reexamination or
applications (§ 1.163) is the same as the   and International Bureau (IB)                 patent owner is inconsistent with
Office’s preference for utility             publication date on the top of the            § 1.533 and suggested that it be deleted.
applications (§ 1.77).                      drawing.                                         Response: The suggestion is adopted.
   Comment (20): One comment stated            Response: The WO publication                  Comment (27): One comment stated
that in the absence of statutory            number and IB publication date placed         that § 1.131 does not specify whether
requirements for the application            on the top of the drawing of an               the phrase ‘‘application’’ includes
elements proposed in §§ 1.77, 1.154,        international application is not              provisional applications. The comment
and 1.163, the rule should clearly state
                                            objectionable under § 1.84(c).                suggested that § 1.131 be amended to
that these application elements or
                                               Comment (24): One comment stated           state ‘‘unless the date of such patent or
arrangements are preferred but not
                                            that the scan target points conflict with     publication is more than one year prior
mandatory.
   Response: Sections 1.77, 1.154, and      PCT Rule 11.6(e). As such, the scan           to the earliest date on which the
1.163 employ the phrase ‘‘should’’          target points would have to be removed        inventor’s or patent owner’s application
rather than ‘‘must,’’ which is the          from applications to be filed as an           or provisional application from which
language of a precatory statement.          international application. The comment        that application claims priority
Therefore, §§ 1.77, 1.154, and 1.163        further stated that these target points are   therefrom was filed in this country.’’
currently state that these application      unnecessary in view of the paper size            Response: The proposed change to
elements or arrangements are preferred,     and margin requirements.                      § 1.131 is not adopted. It is well
but are not mandatory.                         Response: Section 1.84(g) states that      established that the filing date of any
   Comment (21): One comment                drawings ‘‘should,’’ and not ‘‘must,’’        abandoned application co-pending with
questioned whether the Application          have scan target points printed on two        and referred to in a patent is the
Transmittal Form, and Fee Transmittal       catercorner margin corners. Thus,             effective date of the patent with respect
Form set forth in § 1.77 should be          § 1.84(g) merely expresses the Office’s       to the common subject matter disclosed
numbered pages 1 and 2 pursuant to          preference for scan target points on the      in the patent and abandoned
§ 1.52, and further questioned where the    drawings for filming and printing             application. See In re Switzer, 166 F.2d
drawings and oath or declaration are to     purposes, which are considered                827, 77 USPQ 156 (CCPA 1948). Section
be numbered.                                desirable due to the different sights on      1.131 does not make a specific reference
   Response: Section 1.52 has been          21.0 cm. by 29.7 cm. (DIN size A4) and        to nonprovisional applications for
changed to provide that the pages of the    21.6 cm. by 27.9 cm. (81⁄2 by 11 inch)        which a benefit is claimed under 35
specification, not the application,         drawing sheets. An applicant wishing to       U.S.C. 120; however, it is understood
should be consecutively numbered            provide scan target points on drawings        that the effective date of any patent
beginning with page 1. The Application      that will later be filed in the EPO may       sought to be antedated pursuant to
Transmittal Form, and Fee Transmittal       simply copy the drawings to be filed in       § 1.131 is the earliest filing date of any
Form set forth in § 1.77 are not part of    the EPO, place the scan target points         application to which the patent is
the specification. As such, they should     only on the Office copy of the drawings,      entitled to under 35 U.S.C. 120 with
not be numbered as pages 1 and 2,           and submit the copy of the drawings           respect to the common subject matter
respectively. Likewise, the drawings        containing the scan target points to the      disclosed in the patent and the
and oath or declaration are not part of     Office. Likewise, applicants filing           application. The provisions of title 35,
the specification, and need not be          drawings that were previously filed in        except for 35 U.S.C. 115, 131, 135 and
numbered.                                   the EPO should simply add scan target         157, apply to provisional applications.
   Comment (22): One comment stated         points only to the copy of the drawings       35 U.S.C. 111(b)(8). It is therefore
that the failure to include the phrase      to be filed in the Office. Nevertheless, as   likewise unnecessary to specifically
‘‘not applicable’’ by all of the            § 1.84(g) merely expresses a preference       reference provisional applications in
application elements not required by        for scan target points for Office filming     § 1.131.
statute or regulation rendered it unclear   and printing purposes, an applicant              Comment (28): Several comments
as to whether the Office would object to    intending to later file the application in    objected to §§ 1.291 and 1.292 as pre-
the lack of an application element for      the EPO, or any applicant, is at liberty      grant opposition, especially in view of
which the phrase ‘‘not applicable’’ is      to not include such scan target points on     the pre-grant publication of pending
not included.                               the drawings. The Office will not object      applications that would be provided for
   Response: The Office anticipates that    to the absence of scan target points on       in H.R. 1733, if enacted, and the
an applicant choosing to use the            any drawings filed in the Office.             expanded reexamination that would be
Transmittal forms provided by the           Therefore, § 1.84(g) does not include a       provided for in H.R. 1732, if enacted.
Office will arrange his or her              requirement in excess of, or                  The comments either suggested that the
application in the format suggested by      inconsistent, with PCT Rules.                 protest and public use proceeding
42800      Federal Register / Vol. 61, No. 161 / Monday, August 19, 1996 / Rules and Regulations

provisions of §§ 1.291 and 1.292 be         Proposed Rulemaking is not mandatory.        part, reissue), and (2) how the Office
severely limited or abolished.              That is, an applicant need not use the       official will obtain this information for
  Response: The changes to §§ 1.291         standardized versions of the Fee             entry in the official use ‘‘application
and 1.292 place greater obligations on      Transmittal form, Utility Patent             type’’ box.
third parties seeking to use these          Application Transmittal form, Design            Response: The Utility Patent
sections. As such, this rule change does    Patent Application Transmittal form,         Application Transmittal form sets forth
not add to any third party’s ability to     Plant Patent Application Transmittal         instructions for filing utility
participate in the prosecution of a         form, Plant Color Coding Sheet,              applications under § 1.53 in the
pending application. Nevertheless, as       Declaration form and Plant Patent            arrangement set forth in § 1.77. All non-
neither H.R. 1732 nor H.R. 1733 has         Application Declaration form, and need       reissue, nonprovisional utility
presently been enacted, analysis of         not use any fee transmittal form,            applications (i.e., original, continuation,
whether modification of §§ 1.291 and        application transmittal form, or plant       divisional, and continuation-in-part
1.292 in addition to that proposed in the   color coding sheet. These forms were         applications) filed under § 1.53 should
Notice of Proposed Rulemaking is            created to assist applicants in filing a     be submitted using the Utility Patent
desirable in a pre-grant publication or     patent application and to help ensure        Application Transmittal form. The
expanded reexamination system is held       the filing of a complete application         Design Patent Application Transmittal
in abeyance pending enactment of H.R.       accompanied by the appropriate fees,         form sets forth instructions for filing
1733 or 1732.                               thereby avoiding unnecessary delays in       design applications in the arrangement
  Comment (29): One comment noted           the examination of the application.          set forth in § 1.154. All non-reissue
that any standardization of patent             Comment (31): One comment stated          design applications should be submitted
applications should not include pre-        that the Office should not require the       using the Design Patent Application
printed forms taking eleven hours to        use of mandated forms, and if the Office     Transmittal form. The Plant Patent
complete. The comment further               requires the use of mandated forms, the      Application Transmittal form sets forth
suggested that word-processor versions      Office should revise the forms to render     instructions for filing plant applications
of any collection of information, rather    them readily reproducible by                 in the arrangement set forth in § 1.163.
than pre-printed forms, would be of         conventional software, and should            All non-reissue, nonprovisional plant
greater assistance to members of the        arrange for versions of these forms in       applications should be submitted using
public.                                     various formats to be distributed by the     the Plant Patent Application Transmittal
  Response: Initially, the Notice of        Internet, bulletin board, or floppy disk.    form.
Proposed Rulemaking indicated that the      Another comment suggested that the              A Reissue Patent Application
initial patent application (e.g., the       Office should make its form or               Transmittal form is also available, and
specification, drawings, as well as the     templates available for electronic           all applications for the reissue of a
standard forms), not merely the             copying.                                     patent should be submitted using the
proposed standardized forms, is a              Response: Copies of the standard          Reissue Patent Application Transmittal
collection of information estimated to      forms provided by the Office may be          form. The cover sheet provided for in
average eleven hours to complete. The       obtained by contacting the Customer          § 1.53(b)(2)(i) for a provisional
Notice of Proposed Rulemaking stated        Service Center of the Office of Initial      application functions as a transmittal
that the public reporting burden for        Patent Examination at (703) 308–1214.        sheet for a provisional application. As
these collections of information is         Also, many standardized forms have           such, the standardized Provisional
estimated to average: (1) Twelve            been loaded on the Office’s Internet         Application Cover Sheet is the
minutes per response for the Fee            Website and may be electronically            transmittal form for a provisional
Transmittal form, (2) twelve minutes per    copied via the Internet through              application. The provisional application
response for the Utility Patent             anonymous file transfer protocol (ftp)       cover sheet was published in the
Application Transmittal form, (3) twelve    (address: ftp.uspto.gov). Nevertheless,      rulemaking entitled ‘‘Changes to
minutes per response for the Design         use of the forms included for comment        Implement 20-Year Patent Term and
Patent Application Transmittal form, (4)    with the Notice of Proposed Rulemaking       Provisional Applications,’’ in the
twelve minutes per response for the         is not mandatory.                            Federal Register at 60 FR 20230–31
Plant Patent Application Transmittal           Comment (32): One comment                 (April 25, 1995), and in the Patent and
form, (5) twelve minutes per response       questioned why there is a box with an        Trademark Office Official Gazette at
for the Plant Color Coding Sheet, (6)       instruction to type a plus sign in the box   1174 Off. Gaz. Pat Office 45–46 (May 2,
twenty-four minutes per response for        at the very top of the standardized          1995).
the Declaration form, and (7) twenty-       forms.                                          To provide a place on the Application
four minutes per response for the Plant        Response: As discussed supra, the         Transmittal form for claims under 35
Patent Application Declaration.             Office plans to replace or augment the       U.S.C. 119, 120, or 121 would require
Nevertheless, the final rules do not        current microfilming process with an         the use of an unacceptably smaller font
require the use of any standardized         electronic data base which captures at       on the Application Transmittal form.
form. The Office publishes standardized     least the technical content of the           The Declaration forms provide a place
forms only as an aid to practitioners and   application-as-filed for internal Office     for stating claims under 35 U.S.C. 119,
applicants.                                 use. Typing a plus sign (+) into this box    120 or 121. The inclusion on filing of an
  Comment (30): One comment                 will facilitate the image scanner in         executed or unexecuted Declaration
questioned whether use of the               aligning the remaining typing on the         form containing this information would
standardized versions of the various        form during the scanning process.            assist the Office in ascertaining whether
forms would be required. Another               Comment (33): One comment                 the application is an original,
comment stated that the Office has no       questioned: (1) Why the application          continuation, divisional, or
authority to require the use of the         transmittal forms do not have a place for    continuation-in-part application. In
published forms in the absence of           applicant to indicate the type of new        addition, in the event that H.R. 1733 is
statutory authority.t                       utility application being transmitted        enacted, and the proposed changes to
  Response: Use of the forms included       (e.g., a provisional, original,              §§ 1.55(a) and 1.78(a)(2) are adopted
for comment with the Notice of              continuation, division, continuation-in-     substantially as proposed, the routine
            Federal Register / Vol. 61, No. 161 / Monday, August 19, 1996 / Rules and Regulations                                  42801

inclusion of claims for priority under 35     Application Transmittal are currently            the applicant has in executing the
U.S.C. 119, 120, or 121 in an executed        on a single sheet/form, where the                application (e.g., inventor, executor
or unexecuted declaration form                proposed forms provide a separate                (§ 1.42), assignee (§ 1.47(b)). This field is
accompanying the application papers           sheet/form for each. The comment also            an optional field for the applicant to
would be an excellent mechanism for           noted that the current Declaration form          complete. The electronic versions of the
avoiding an inadvertent failure to timely     is a single sheet, where the proposed            proposed standard declaration forms
submit a claim for priority under 35          Declaration form contains multiple               would provide the applicant with
U.S.C. 119, 120, or 121.                      sheets.                                          directions and a list of valid codes that
   Comment (34): One comment noted               Response: The Office currently                correspond with a specific identification
that the heading ‘‘DECLARATION’’ does         receives application transmittals, fee           of the authority the applicant retains
not state the types of applications with      calculations/transmittals and                    (e.g., the Authority Code for an executor
which the declaration form could be           declarations in a variety of forms and in        will be ‘‘04’’).
used. The comment questioned whether          a multitude of formats. The proposed                Comment (40): One comment stated
it is intended to be used with any type       forms were developed as a result of an           that due to the spacing and small fonts
of nonprovisional application except          analysis of the current practices and            on the fee transmittal form, this sheet
plant applications for which a separate       requirements of applicants, as well as           cannot be used with a conventional
form is proposed.                             the Office’s plans to scan application           word processor.
   Response: The declaration form             data from these forms into an electronic            Response: To accommodate all the fee
containing the heading                        data base. The Fee Transmittal form was          descriptions on a one-page fee
‘‘DECLARATION’’ is intended to be             created to aid applicants in submitting          transmittal it was necessary to use
used with any type of nonprovisional          the fees due on filing a new patent              smaller fonts in the form’s design. These
application except plant applications,        application, as well as the fees that may        fonts are available in Word and
for which a separate Plant Declaration        be due throughout the prosecution of             WordPerfect. An electronic version of
form is provided.                             the application. The Application                 the fee transmittal will be available from
   Comment (35): One comment                  Transmittal serves to both aid                   the Office soon.
suggested that in the foreign priority        applicants in filing a complete                     Comment (41): One comment stated
claim section of the Declaration form,        application, and simplify the pre-               that the ‘‘one form fits all’’ mentality of
the last line, the phrase ‘‘having a filing   examination processing of the                    the fee transmittal form should be
date before that of the application on        application. To permit the inclusion of          reconsidered since certain fees are
which priority is claimed’’ should be         additional fee calculation and                   submitted only once during the
changed to ‘‘for which priority is not        application transmittal information on           prosecution of an application.
claimed,’’ to cover those foreign             the standardized forms, and to provide              Response: The proposed standard
applications which have a filing date         a Fee Transmittal form for use                   one-page fee form is primarily to
after that of the application on which        throughout the prosecution of the                facilitate and simplify the fee payment
priority is claimed and the benefit of        application, a separate Fee Transmittal          process. The one-page fee transmittal is
which applicant does not want to claim.       form and Application Transmittal form            intended to aid applicants in providing
The comment also indicated that,              were developed. A multi-page                     complete fee information to the Office
frequently, an application is filed after     Declaration form is necessary to                 for each application and paper
the Convention Year.                          accommodate the Office’s plans to scan           submission. This will enable the Office
   Response: The suggestion is not            application data from this Declaration           to more efficiently process and record
adopted. Section 1.63(c) requires that an     form into an electronic data base.               fee payments, which will avoid delays
oath or declaration in any application in        Comment (38): One comment                     in the prosecution of an application.
which a claim for priority is made            indicated that the meaning or purpose
pursuant to § 1.55 identify * * * ‘‘any       of ‘‘suffix’’ in the inventor signature          Other Considerations
foreign application having a filing date      block is unclear, and requested an                 This final rule change is in conformity
before that of the application on which       explanation as to whether it refers to           with the requirements of the Regulatory
priority is claimed, by specifying the        ‘‘Jr.’’ or ‘‘II,’’ or whether it is a place to   Flexibility Act (5 U.S.C. 601 et seq.),
application number, country, day,             put the mother’s name for those                  Executive Order 12612, and the
month, and year of its filing.’’ Thus, the    inventors whose family name is                   Paperwork Reduction Act of 1995, 44
language in the Declaration form aids         followed by their mother’s name.                 U.S.C. 3501 et seq. It has been
applicants in submitting a declaration in        Response: The field on the                    determined that this final rule is not
compliance with § 1.63(c). Any foreign        Declaration form labeled (inventor)              significant for the purposes of Executive
application having a filing date before       ‘‘suffix’’ is intended to provide the            Order 12866.
that of the application on which priority     applicant with an option to indicate               The Assistant General Counsel for
is claimed is, by definition, a foreign       family position relative to age. Examples        Legislation and Regulation of the
application for which priority is not         of an inventor’s suffix are: Jr., Sr., and       Department of Commerce has certified
claimed.                                      III. This information is tracked by the          to the Chief Counsel for Advocacy,
   Comment (36): One comment                  Office and is necessary to print patents         Small Business Administration, that this
suggested that in the foreign priority        which accurately reflect bibliographic           rule change will not have a significant
claim section, the right hand columns,        information about the inventor. The use          economic impact on a substantial
the heading should be corrected to            of this field and the data expected will         number of small entities (Regulatory
‘‘Certified Copy Attached’’ since the         be clarified and specified in the form           Flexibility Act, 5 U.S.C. 605(b)). The
Office does not routinely want                instructions.                                    principal effect of this rule change is to
uncertified copies.                              Comment (39): One comment                     simplify and clarify the rules governing
   Response: The suggestion is adopted.       questioned the meaning or purpose of             the form of patent application papers.
The Declaration form has been modified        ‘‘Applicant Authority’’ in the last line of        The Office has also determined that
accordingly.                                  the inventor data block.                         this notice has no Federalism
   Comment (37): One comment noted               Response: The phrase ‘‘Applicant              implications affecting the relationship
that the Fee Calculation and                  Authority’’ indicates the authority that         between the National Government and
42802      Federal Register / Vol. 61, No. 161 / Monday, August 19, 1996 / Rules and Regulations

the States as outlined in Executive          Office of Information and Regulatory                (2) Status information, which
Order 12612.                                 Affairs, Office of Management and                includes information such as whether
  Notwithstanding any other provision        Budget, Washington, DC 20503 (ATTN:              the application is pending, abandoned,
of law, no person is required to respond     Paperwork Reduction Act Project 0651–            or patented, as well as the application
to nor shall any person be subject to a      0032).                                           number and filing date, may be
penalty for failure to comply with a                                                          supplied:
collection of information subject to the     List of Subjects in 37 CFR Part 1
                                                                                                 (i) Concerning an application or any
requirements of the Paperwork                  Administrative practice and                    application claiming the benefit of the
Reduction Act unless that collection of      procedure, Courts, Freedom of                    filing date of the application, if the
information displays a currently valid       Information, Inventions and patents,             application has been identified by
OMB control number.                          Reporting and recordkeeping                      application number or serial number
  This final rule package contains a         requirements, Small businesses.                  and filing date in a published patent
collection of information subject to the       For the reasons set forth in the               document,
Paperwork Reduction Act of 1995, 44          preamble, 37 CFR Part 1 is amended as               (ii) Concerning the national stage
U.S.C. 3501 et seq. This collection of       follows:                                         application or any application claiming
information is currently approved by                                                          the benefit of the filing date of a
the Office of Management and Budget          PART 1—RULES OF PRACTICE IN                      published international application, if
under Control No. 0651–0032. This            PATENT CASES                                     the United States of America has been
collection of information includes the         1. The authority citation for 37 CFR           indicated as a Designated State in the
initial patent application filing, the Fee   Part 1 continues to read as follows:             international application, or
Transmittal form, the Utility Patent                                                             (iii) When it has been determined by
Application Transmittal form, the              Authority: 35 U.S.C. 6, unless otherwise
                                             noted.                                           the Commissioner to be necessary for
Design Patent Application Transmittal                                                         the proper conduct of business before
form, the Plant Patent Application             2. Section 1.5 is amended by adding            the Office.
Transmittal form, the Plant Color            paragraph (f) to read as follows:                   (3) Access to, or copies of, an
Coding Sheet, the Declaration form, and                                                       application may be provided:
                                             § 1.5 Identification of application, patent or
the Plant Patent Application Declaration                                                         (i) When the application is open to
                                             registration.
form. The above-mentioned forms will                                                          the public as provided in § 1.11(b),
reduce the burden and uncertainty            *     *    *     *     *
                                               (f) When a paper concerns a                       (ii) When written authority in that
associated with the submission of an                                                          application from the applicant, the
application and related information, and     provisional application, it should
                                             identify the application as such and             assignee of the application, or the
enhance the Office’s ability to use                                                           attorney or agent of record has been
standardized automation techniques           include the application number.
                                               3. Section 1.12 is amended by revising         granted,
(optical character recognition, etc.) to
                                             paragraph (c) to read as follows:                   (iii) When it has been determined by
record and process information
                                                                                              the Commissioner to be necessary for
concerning applications. The public          § 1.12 Assignment records open to public         the proper conduct of business before
reporting burden for these collections of    inspection.
                                                                                              the Office, or
information is estimated to average: (1)     *      *     *     *     *                          (iv) To any person on written request,
Ten hours per response for the                  (c) Any request by a member of the            without notice to the applicant, when
specification and drawings of an             public seeking copies of any assignment          the application is abandoned and
application, (2) twelve minutes per          records of any pending or abandoned              available and is:
response for the Fee Transmittal form,       patent application preserved in
(3) twelve minutes per response for the                                                          (A) Referred to in a U.S. patent,
                                             confidence under § 1.14, or any                     (B) Referred to in an application open
Utility Patent Application Transmittal       information with respect thereto, must:
form, (4) twelve minutes per response                                                         to public inspection,
                                                (1) Be in the form of a petition                 (C) An application which claims the
for the Design Patent Application            accompanied by the petition fee set
Transmittal form, (5) twelve minutes per                                                      benefit of the filing date of an
                                             forth in § 1.17(i); or                           application open to public inspection,
response for the Plant Patent                   (2) Include written authority granting
Application Transmittal form, (6) twelve                                                      or
                                             access to the member of the public to
minutes per response for the Plant Color                                                         (D) An application in which the
                                             the particular assignment records from
Coding Sheet, (7) twenty-four minutes                                                         applicant has filed an authorization to
                                             the applicant or applicant’s assignee or
per response for the Declaration form,                                                        lay open the complete application to the
                                             attorney or agent of record.
and (8) twenty-four minutes per                                                               public.
                                             *      *     *     *     *                          (b) Complete applications (§ 1.51(a))
response for the Plant Patent                   4. Section 1.14 is amended by revising
Application Declaration. These                                                                which are abandoned may be destroyed
                                             the section heading and paragraphs (a),          and hence may not be available for
estimates include the time for reviewing     (b), and (e) to read as follows:
instructions, searching existing data                                                         access or copies as permitted by
sources, gathering and maintaining the       § 1.14 Patent applications preserved in          paragraph (a)(3)(iv) of this section after
data needed, and completing and              confidence.                                      20 years from their filing date, except
reviewing the collections of                   (a) (1) Patent applications are                those to which particular attention has
information.                                 generally preserved in confidence                been called and which have been
  Send comments regarding this burden        pursuant to 35 U.S.C. 122. No                    marked for preservation.
estimate or any other aspect of this         information will be given concerning             *       *   *      *    *
collection of information, including         the filing, pendency, or subject matter of          (e) Any request by a member of the
suggestions for reducing this burden to      any application for patent, and no               public seeking access to, or copies of,
the Office of System Quality and             access will be given to, or copies               any pending or abandoned application
Enhancement, Data Administration             furnished of, any application or papers          preserved in confidence pursuant to
Division, Patent and Trademark Office,       relating thereto, except as set forth in         paragraph (a) of this section, or any
Washington, DC 20231, and to the             this section.                                    papers relating thereto, must:
             Federal Register / Vol. 61, No. 161 / Monday, August 19, 1996 / Rules and Regulations                              42803

   (1) Be in the form of a petition and be    specification, and any amendments to          will not be granted to the application
accompanied by the petition fee set           the specification, must be 11⁄2 or double     unless a petition with the fee set forth
forth in § 1.17(i); or                        spaced. The pages of the specification        in § 1.17(i) is filed with instructions to
   (2) Include written authority granting     including claims and abstract must be         cancel the copy or specification.
access to the member of the public in         numbered consecutively, starting with            (f) The filing of an application under
that particular application from the          1, the numbers being centrally located        this section will be construed to include
applicant or the applicant’s assignee or      above or preferably, below, the text. See     a waiver of confidence by the applicant
attorney or agent of record.                  § 1.84 for drawings.                          under 35 U.S.C. 122 to the extent that
   5. Section 1.52 is amended by revising     *      *    *     *     *                     any member of the public who is
paragraphs (a) and (b) to read as follows:       6. Section 1.54 is amended by revising     entitled under the provisions of § 1.14 to
§ 1.52   Language, paper, writing, margins.   paragraph (b) to read as follows:             access to, or information concerning
                                                                                            either the prior application or any
   (a) The application, any amendments        § 1.54 Parts of application to be filed       continuing application filed under the
or corrections thereto, and the oath or       together; filing receipt.                     provisions of this section may be given
declaration must be in the English            *      *    *     *     *                     similar access to, or similar information
language except as provided for in               (b) Applicant will be informed of the      concerning, the other application(s) in
§ 1.69 and paragraph (d) of this section,     application number and filing date by a       the file wrapper.
or be accompanied by a verified               filing receipt.
translation of the application and a                                                        *      *     *      *    *
                                                 7. Section 1.58 is amended by                 9. Section 1.72 is amended by revising
translation of any corrections or             removing and reserving paragraph (b)
amendments into the English language.                                                       paragraph (b) to read as follows:
                                              and revising the section heading and
All papers which are to become a part         paragraph (c) to read as follows:             § 1.72   Title and abstract.
of the permanent records of the Patent
and Trademark Office must be legibly                                                        *      *    *      *     *
                                              § 1.58 Chemical and mathematical
written either by a typewriter or             formulae and tables.                             (b) A brief abstract of the technical
mechanical printer in permanent dark                                                        disclosure in the specification must
                                              *      *    *     *      *                    commence on a separate sheet,
ink or its equivalent in portrait                (b) [Reserved]
orientation on flexible, strong, smooth,                                                    preferably following the claims, under
                                                 (c) Chemical and mathematical
non-shiny, durable, and white paper.                                                        the heading ‘‘Abstract of the
                                              formulae and tables must be presented
All of the application papers must be                                                       Disclosure.’’ The purpose of the abstract
                                              in compliance with § 1.52 (a) and (b),
presented in a form having sufficient                                                       is to enable the Patent and Trademark
                                              except that chemical and mathematical
clarity and contrast between the paper                                                      Office and the public generally to
                                              formulae or tables may be placed in a
and the writing thereon to permit the                                                       determine quickly from a cursory
                                              landscape orientation if they cannot be
direct reproduction of readily legible                                                      inspection the nature and gist of the
                                              presented satisfactorily in a portrait
copies in any number by use of                                                              technical disclosure. The abstract shall
                                              orientation. Typewritten characters used
photographic, electrostatic, photo-offset,                                                  not be used for interpreting the scope of
                                              in such formulae and tables must be
and microfilming processes and                                                              the claims.
                                              chosen from a block (nonscript) type             10. Section 1.75 is amended by
electronic reproduction by use of digital     font or lettering style having capital
imaging and optical character                                                               revising paragraph (g) and adding
                                              letters which are at least 0.21 cm. (0.08     paragraphs (h) and (i) to read as follows:
recognition. If the papers are not of the     inch) high (e.g., elite type). A space at
required quality, substitute typewritten      least 0.64 cm. (1⁄4 inch) high should be      § 1.75   Claim(s).
or mechanically printed papers of             provided between complex formulae             *      *    *      *     *
suitable quality will be required. See        and tables and the text. Tables should           (g) The least restrictive claim should
§ 1.125 for filing substitute typewritten     have the lines and columns of data            be presented as claim number 1, and all
or mechanically printed papers                closely spaced to conserve space,             dependent claims should be grouped
constituting a substitute specification       consistent with a high degree of              together with the claim or claims to
when required by the Office.                  legibility.                                   which they refer to the extent
   (b) Except for drawings, the                  8. Section 1.62 is amended by revising     practicable.
application papers (specification,            paragraphs (e) and (f) to read as follows:       (h) The claim or claims must
including claims, abstract, oath or                                                         commence on a separate sheet.
declaration, and papers as provided for       § 1.62   File wrapper continuing procedure.
                                                                                               (i) Where a claim sets forth a plurality
in this part and also papers                  *      *    *     *     *                     of elements or steps, each element or
subsequently filed, must have each page          (e) An application filed under this        step of the claim should be separated by
plainly written on only one side of a         section will utilize the file wrapper and     a line indentation.
sheet of paper, with the claim or claims      contents of the prior application to             11. Section 1.77 is revised to read as
commencing on a separate sheet and the        constitute the new continuation,              follows:
abstract commencing on a separate             continuation-in-part, or divisional
sheet. See §§ 1.72(b) and 1.75(h). The        application but will be assigned a new        § 1.77 Arrangement of application
sheets of paper must be the same size         application number. Changes to the            elements.
and either 21.0 cm. by 29.7 cm. (DIN          prior application must be made in the            (a) The elements of the application, if
size A4) or 21.6 cm. by 27.9 cm. (81⁄2 by     form of an amendment to the prior             applicable, should appear in the
11 inches). Each sheet must include a         application as it exists at the time of       following order:
top margin of at least 2.0 cm. (3⁄4 inch),    filing the application under this section.       (1) Utility Application Transmittal
a left side margin of at least 2.5 cm. (1     No copy of the prior application or new       Form.
inch), a right side margin of at least 2.0    specification is required. The filing of         (2) Fee Transmittal Form.
cm. (3⁄4 inch), and a bottom margin of        such a copy or specification will be             (3) Title of the invention; or an
at least 2.0 cm. (3⁄4 inch), and no holes     considered improper, and a filing date        introductory portion stating the name,
should be made in the sheets as               as of the date of deposit of the request      citizenship, and residence of the
submitted. The lines of the                   for an application under this section         applicant, and the title of the invention.
42804        Federal Register / Vol. 61, No. 161 / Monday, August 19, 1996 / Rules and Regulations

  (4) Cross-reference to related                 the same person at the time the later          § 1.96 Submission of computer program
applications.                                    invention was made, and if not, indicate       listings.
  (5) Statement regarding federally              which named inventor is the prior                 (a) General. Descriptions of the
sponsored research or development.               inventor.                                      operation and general content of
  (6) Reference to a ‘‘Microfiche                                                               computer program listings should
                                                   13. Section 1.84 is amended by
appendix.’’ (See § 1.96 (c)). The total                                                         appear in the description portion of the
                                                 revising paragraphs (c), (f), (g), and (x)
number of microfiche and total number                                                           specification. A computer program
                                                 to read as follows:
of frames should be specified.                                                                  listing for the purpose of this section is
  (7) Background of the invention.               § 1.84   Standards for drawings.               defined as a printout that lists in
  (8) Brief summary of the invention.                                                           appropriate sequence the instructions,
  (9) Brief description of the several           *      *     *     *     *
                                                                                                routines, and other contents of a
views of the drawing.                               (c) Identification of drawings.             program for a computer. The program
  (10) Detailed description of the               Identifying indicia, if provided, should       listing may be either in machine or
invention.                                       include the application number or the          machine-independent (object or source)
  (11) Claim or claims.                          title of the invention, inventor’s name,       language which will cause a computer
  (12) Abstract of the Disclosure.               docket number (if any), and the name           to perform a desired procedure or task
  (13) Drawings.                                 and telephone number of a person to            such as solve a problem, regulate the
  (14) Executed oath or declaration.             call if the Office is unable to match the      flow of work in a computer, or control
  (15) Sequence Listing (See §§ 1.821            drawings to the proper application. This       or monitor events. Computer program
through 1.825).                                  information should be placed on the            listings may be submitted in patent
  (b) The elements set forth in                  back of each sheet of drawings a               applications as set forth in paragraphs
paragraphs (a)(3) through (a)(5), (a)(7)         minimum distance of 1.5 cm. (5⁄8 inch)         (b) and (c) of this section.
through (a)(12) and (a)(15) of this              down from the top of the page. In                 (b) Material which will be printed in
section should appear in upper case,             addition, a reference to the application       the patent. If the computer program
without underlining or bold type, as             number, or, if an application number           listing is contained on ten printout
section headings. If no text follows the         has not been assigned, the inventor’s          pages or less, it must be submitted
section heading, the phrase ‘‘Not                name, may be included in the left-hand         either as drawings or as part of the
Applicable’’ should follow the section           corner, provided that the reference            specification.
heading.                                         appears within 1.5 cm. (9⁄16 inch) from           (1) Drawings. If the listing is
  12. Section 1.78 is amended by                 the top of the sheet.                          submitted as drawings, it must be
removing paragraph (d) and revising                                                             submitted in the manner and complying
paragraphs (a)(2) and (c) to read as             *      *     *     *     *
                                                                                                with the requirements for drawings as
follows:                                            (f) Size of paper. All drawing sheets       provided in § 1.84. At least one figure
                                                 in an application must be the same size.       numeral is required on each sheet of
§ 1.78 Claiming benefit of earlier filing date   One of the shorter sides of the sheet is
and cross references to other applications.
                                                                                                drawing.
                                                 regarded as its top. The size of the              (2) Specification. (i) If the listing is
   (a) * * *                                     sheets on which drawings are made              submitted as part of the specification, it
   (2) Any nonprovisional application            must be:                                       must be submitted in accordance with
claiming the benefit of one or more prior                                                       the provisions of § 1.52, at the end of the
filed copending nonprovisional                      (1) 21.0 cm. by 29.7 cm. (DIN size A4),
                                                 or                                             description but before the claims.
applications or international                                                                      (ii) Any listing submitted as part of
applications designating the United                 (2) 21.6 cm. by 27.9 cm. (81⁄2 by 11        the specification must be direct
States of America must contain or be             inches).                                       printouts (i.e., not copies) from the
amended to contain in the first sentence            (g) Margins. The sheets must not            computer’s printer with dark solid black
of the specification following the title a       contain frames around the sight; i.e., the     letters not less than 0.21 cm. high, on
reference to each such prior application,        usable surface, but should have scan           white, unshaded and unlined paper,
identifying it by application number             target points, i.e., cross-hairs, printed on   and the sheets should be submitted in
(consisting of the series code and serial        two catercorner margin corners. Each           a protective cover. Any amendments
number) or international application             sheet must include a top margin of at          must be made by way of submission of
number and international filing date             least 2.5 cm. (1 inch), a left side margin     substitute sheets.
and indicating the relationship of the           of at least 2.5 cm. (1 inch), a right side        (c) As an appendix which will not be
applications. Cross-references to other          margin of at least 1.5 cm. (9⁄16 inch), and    printed. If a computer program listing
related applications may be made when            a bottom margin of at least 1.0 cm. (3⁄8       printout is eleven or more pages long,
appropriate. (See § 1.14(a)).                    inch), thereby leaving a sight no greater      applicants must submit such listing in
*      *    *     *     *                        than 17.0 cm. by 26.2 cm. on 21.0 cm.          the form of microfiche, referred to in the
   (c) Where an application or a patent          by 29.7 cm. (DIN size A4) drawing              specification (see § 1.77(a)(6)). Such
under reexamination and at least one             sheets, and a sight no greater than 17.6       microfiche filed with a patent
other application naming different               cm. by 24.4 cm. (615⁄16 by 95⁄8 inches) on     application is to be referred to as a
inventors are owned by the same party            21.6 cm. by 27.9 cm. (81⁄2 by 11 inch)         ‘‘microfiche appendix.’’ The
and contain conflicting claims, and              drawing sheets.                                ‘‘microfiche appendix’’ will not be part
there is no statement of record                  *      *     *     *     *                     of the printed patent. Reference in the
indicating that the claimed inventions                                                          application to the ‘‘microfiche
were commonly owned or subject to an                (x) Holes. No holes should be made by       appendix’’ must be made at the
obligation of assignment to the same             applicant in the drawing sheets. (See          beginning of the specification at the
person at the time the later invention           § 1.152 for design drawings, § 1.165 for       location indicated in § 1.77(a)(6). Any
was made, the assignee may be called             plant drawings, and § 1.174 for reissue        amendments thereto must be made by
upon to state whether the claimed                drawings.)                                     way of revised microfiche.
inventions were commonly owned or                   14. Section 1.96 is revised to read as         (1) Availability of appendix. Such
subject to an obligation of assignment to        follows:                                       computer program listings on
            Federal Register / Vol. 61, No. 161 / Monday, August 19, 1996 / Rules and Regulations                               42805

microfiche will be available to the              (B) The second frame of each               § 1.107   Citation of references.
public for inspection, and microfiche         microfiche submitted must contain a             (a) If domestic patents are cited by the
copies thereof will be available for          fully descriptive title and the inventor’s    examiner, their numbers and dates, and
purchase with the file wrapper and            name as filed.                                the names of the patentees must be
contents, after a patent based on such           (C) The pages or lines appearing on        stated. If foreign published applications
application is granted or the application     the microfiche frames should be               or patents are cited, their nationality or
is otherwise made publicly available.         consecutively numbered.                       country, numbers and dates, and the
   (2) Submission requirements. Except           (D) It is preferred that pagination of     names of the patentees must be stated,
as modified or clarified in this              the microfiche frames be from left to         and such other data must be furnished
paragraph (c)(2), computer-generated          right and top to bottom but the
                                                                                            as may be necessary to enable the
information submitted as a ‘‘microfiche       alternative, i.e., from top to bottom and
                                                                                            applicant, or in the case of a
appendix’’ to an application shall be in      from left to right, is also acceptable.
                                                 (E) An index, when included, should        reexamination proceeding, the patent
accordance with the standards set forth                                                     owner, to identify the published
in 36 CFR part 1230 (Micrographics).          appear on the last frame (lower right-
                                              hand corner when data is right-reading)       applications or patents cited. In citing
   (i) Film submitted shall be a first                                                      foreign published applications or
generation (camera film) negative             of each microfiche.
                                                 15. Section 1.97 is amended by             patents, in case only a part of the
appearing microfiche (with emulsion on                                                      document is involved, the particular
                                              revising paragraphs (a) through (d) to
the back side of the film when viewed                                                       pages and sheets containing the parts
                                              read as follows:
with the images right-reading).                                                             relied upon must be identified. If
   (ii) Reduction ratio of microfiche         § 1.97 Filing of information disclosure       printed publications are cited, the
submitted should be 24:1 or a similar         statement.                                    author (if any), title, date, pages or
ratio where variation from said ratio is         (a) In order for an applicant for a        plates, and place of publication, or place
required in order to fit the documents        patent or for a reissue of a patent to have   where a copy can be found, shall be
into the image area of the microfiche         an information disclosure statement in        given.
format used.                                  compliance with § 1.98 considered by          *     *      *     *     *
   (iii) At least the left-most third (50     the Office during the pendency of the           17. Section 1.110 is revised to read as
mm.×12 mm.) of the header or title area       application, it must satisfy paragraph
                                                                                            follows:
of each microfiche submitted shall be         (b), (c), or (d) of this section.
clear or positive appearing so that the          (b) An information disclosure              § 1.110 Inventorship and date of invention
Patent and Trademark Office can apply         statement shall be considered by the          of the subject matter of individual claims.
an application number and filing date         Office if filed by the applicant:               When more than one inventor is
thereto in an eye-readable form. The             (1) Within three months of the filing
                                                                                            named in an application or patent, the
middle portion of the header shall be         date of a national application;
                                                 (2) Within three months of the date of     Patent and Trademark Office, when
used by applicant to apply an eye-                                                          necessary for purposes of an Office
readable application identification such      entry of the national stage as set forth in
                                              § 1.491 in an international application;      proceeding, may require an applicant,
as the title and/or the first inventor’s                                                    patentee, or owner to identify the
name. The attorney’s docket number            or
                                                 (3) Before the mailing date of a first     inventive entity of the subject matter of
may be included. The final right-hand                                                       each claim in the application or patent.
portion of the microfiche shall contain       Office action on the merits, whichever
                                              event occurs last.                            Where appropriate, the invention dates
sequence information for the                                                                of the subject matter of each claim and
                                                 (c) An information disclosure
microfiche, such as 1 of 4, 2 of 4, etc.                                                    the ownership of the subject matter on
                                              statement shall be considered by the
   (iv) Additional requirements which                                                       the date of invention may be required of
                                              Office if filed by the applicant after the
apply specifically to microfiche of                                                         the applicant, patentee or owner. See
                                              period specified in paragraph (b) of this
filmed paper copy:                                                                          also §§ 1.78(c) and 1.130.
                                              section, provided that the statement is
   (A) The first frame of each microfiche                                                     18. A new § 1.130 is added after the
                                              accompanied by either a certification as
submitted shall contain a test target.                                                      undesignated center heading ‘‘Affidavits
                                              specified in paragraph (e) of this section
   (B) The second frame of each               or the fee set forth in § 1.17(p), and is     Overcoming Rejections’’ to read as
microfiche submitted must contain a           filed before the mailing date of either:      follows:
fully descriptive title and the inventor’s       (1) A final action under § 1.113; or
name as filed.                                   (2) A notice of allowance under            § 1.130 Affidavit or declaration to
   (C) The pages or lines appearing on                                                      disqualify commonly owned patent as prior
                                              § 1.311, whichever occurs first.
the microfiche frames should be                                                             art.
                                                 (d) An information disclosure
consecutively numbered.                       statement shall be considered by the            (a) When any claim of an application
   (D) Pagination of the microfiche           Office if filed by the applicant after the    or a patent under reexamination is
frames shall be from left to right and        period specified in paragraph (c) of this     rejected under 35 U.S.C. 103 in view of
from top to bottom.                           section, provided that the statement is       a U.S. patent which is not prior art
   (E) At a reduction of 24:1, resolution     filed on or before payment of the issue       under 35 U.S.C. 102(b), and the
of the original microfilm shall be at least   fee and is accompanied by:                    inventions defined by the claims in the
120 lines per mm. (5.0 target).                  (1) A certification as specified in        application or patent under
   (F) An index, when included, should        paragraph (e) of this section;                reexamination and by the claims in the
appear in the last frame (lower right-           (2) A petition requesting                  patent are not identical but are not
hand corner when data is right-reading)       consideration of the information              patentably distinct, and the inventions
of each microfiche.                           disclosure statement; and                     are owned by the same party, the
   (v) Microfiche generated by Computer          (3) The petition fee set forth in          applicant or owner of the patent under
Output Microfilm.                             § 1.17(i).                                    reexamination may disqualify the patent
   (A) The first frame of each microfiche     *      *      *      *     *                  as prior art. The patent can be
submitted should contain a resolution            16. Section 1.107 is amended by            disqualified as prior art by submission
test frame.                                   revising paragraph (a) to read as follows:    of:
42806       Federal Register / Vol. 61, No. 161 / Monday, August 19, 1996 / Rules and Regulations

  (1) A terminal disclaimer in               1996, in a WTO member country other              (8) Brief description of the drawing.
accordance with § 1.321(c), and              than a NAFTA country.                            (9) Detailed Botanical Description.
  (2) An oath or declaration stating that    *     *    *     *     *                         (10) A single claim.
                                               20. Section 1.132 is revised to read as        (11) Abstract of the Disclosure.
the application or patent under
                                             follows:                                         (12) Drawings (in duplicate).
reexamination and the patent are
                                                                                              (13) Executed oath or declaration.
currently owned by the same party, and                                                        (14) Plant color coding sheet.
                                             § 1.132 Affidavits or declarations
that the inventor named in the               traversing grounds of rejection.                 (d) A plant color coding sheet as used
application or patent under                                                                in this section means a sheet that
                                               When any claim of an application or
reexamination is the prior inventor                                                        specifies a color coding system as
                                             a patent under reexamination is rejected
under 35 U.S.C. 104.                                                                       designated in a color dictionary, and
                                             on reference to a U.S. patent which
  (b) When an application or a patent        substantially shows or describes but          lists every plant structure to which color
under reexamination claims an                does not claim the same patentable            is a distinguishing feature and the
invention which is not patentably            invention, as defined in § 1.601(n), on       corresponding color code which best
distinct from an invention claimed in a      reference to a foreign patent, on             represents that plant structure.
commonly owned patent with the same          reference to a printed publication, or on        23. Section 1.291 is amended by
or a different inventive entity, a double    reference to facts within the personal        revising paragraphs (a) and (b) to read
patenting rejection will be made in the      knowledge of an employee of the Office,       as follows:
application or a patent under                or when rejected upon a mode or
reexamination. A judicially created                                                        § 1.291 Protests by the public against
                                             capability of operation attributed to a       pending applications.
double patenting rejection may be            reference, or because the alleged
obviated by filing a terminal disclaimer                                                      (a) Protests by a member of the public
                                             invention is held to be inoperative,
in accordance with § 1.321(c).                                                             against pending applications will be
                                             lacking in utility, frivolous, or injurious
                                                                                           referred to the examiner having charge
  19. Section 1.131 is amended by            to public health or morals, affidavits or
                                                                                           of the subject matter involved. A protest
revising paragraph (a) to read as follows:   declarations traversing these references
                                                                                           specifically identifying the application
                                             or objections may be received.
§ 1.131 Affidavit or declaration of prior                                                  to which the protest is directed will be
                                               21. Section 1.154 is revised to read as
invention to overcome cited patent or                                                      entered in the application file if:
                                             follows:                                         (1) The protest is submitted prior to
publication.
                                             § 1.154 Arrangement of specification.         the mailing of a notice of allowance
   (a) (1) When any claim of an                                                            under § 1.311; and
application or a patent under                  (a) The elements of the design
                                             application, if applicable, should appear        (2) The protest is either served upon
reexamination is rejected under 35                                                         the applicant in accordance with
U.S.C. 102 (a) or (e), or 35 U.S.C. 103      in the following order:
                                               (1) Design Application Transmittal          § 1.248, or filed with the Office in
based on a U.S. patent to another or                                                       duplicate in the event service is not
others which is prior art under 35 U.S.C.    Form.
                                               (2) Fee Transmittal Form.                   possible.
102 (a) or (e) and which substantially                                                        (b) Protests raising fraud or other
shows or describes but does not claim          (3) Preamble, stating name of the
                                             applicant and title of the design.            inequitable conduct issues will be
the same patentable invention, as                                                          entered in the application file, generally
defined in § 1.601(n), or on reference to      (4) Cross-reference to related
                                             applications.                                 without comment on those issues.
a foreign patent or to a printed                                                           Protests which do not adequately
publication, the inventor of the subject       (5) Statement regarding federally
                                             sponsored research or development.            identify a pending patent application
matter of the rejected claim, the owner                                                    will be returned to the protestor and
of the patent under reexamination, or          (6) Description of the figure or figures
                                             of the drawing.                               will not be further considered by the
the party qualified under §§ 1.42, 1.43,                                                   Office. A protest submitted in
or 1.47, may submit an appropriate oath        (7) Feature Description.
                                               (8) A single claim.                         accordance with the second sentence of
or declaration to overcome the patent or                                                   paragraph (a) of this section will be
publication. The oath or declaration           (9) Drawings or photographs.
                                               (10) Executed oath or declaration (See      considered by the Office if the
must include facts showing a                                                               application is still pending when the
completion of the invention in this          § 1.153(b)).
                                               (b) [Reserved]                              protest and application file are brought
country or in a NAFTA or WTO member                                                        before the examiner and it includes:
country before the filing date of the          22. Section 1.163 is amended by
                                             adding new paragraphs (c) and (d) to             (1) A listing of the patents,
application on which the U.S. patent                                                       publications, or other information relied
issued, or before the date of the foreign    read as follows:
                                                                                           upon;
patent, or before the date of the printed    § 1.163   Specification.                         (2) A concise explanation of the
publication. When an appropriate oath        *     *     *     *     *                     relevance of each listed item;
or declaration is made, the patent or          (c) The elements of the plant                  (3) A copy of each listed patent or
publication cited shall not bar the grant    application, if applicable, should appear     publication or other item of information
of a patent to the inventor or the           in the following order:                       in written form or at least the pertinent
confirmation of the patentability of the       (1) Plant Application Transmittal           portions thereof; and
claims of the patent, unless the date of     Form.                                            (4) An English language translation of
such patent or printed publication is          (2) Fee Transmittal Form.                   all the necessary and pertinent parts of
more than one year prior to the date on        (3) Title of the invention.                 any non-English language patent,
which the inventor’s or patent owner’s         (4) Cross-reference to related              publication, or other item of information
application was filed in this country.       applications.                                 in written form relied upon.
   (2) A date of completion of the             (5) Statement regarding federally           *      *     *     *     *
invention may not be established under       sponsored research or development.               24. Section 1.292 is amended by
this section before December 8, 1993, in       (6) Background of the invention.            revising paragraphs (a) and (b) to read
a NAFTA country, or before January 1,          (7) Brief summary of the invention.         as follows:
             Federal Register / Vol. 61, No. 161 / Monday, August 19, 1996 / Rules and Regulations                           42807

§ 1.292   Public use proceedings.            application or patent which formed the        SUMMARY:    This final rule removes parts
   (a) When a petition for the institution   basis for the rejection.                      dealing with service of process on
of public use proceedings, supported by        27. Section 1.497 is revised to read as     Patent and Trademark Office (PTO)
affidavits or declarations is found, on      follows:                                      employees in their official capacity and
reference to the examiner, to make a                                                       with testimony by employees and
                                             § 1.497 Oath or declaration under 35          production of documents in legal
prima facie showing that the invention
                                             U.S.C. 371(c)(4).
claimed in an application believed to be                                                   proceedings. The PTO will rely on
on file had been in public use or on sale       (a) When an applicant of an                analogous Commerce Department
more than one year before the filing of      international application desires to          regulations found in title 15 of the Code
the application, a hearing may be had        enter the national stage under 35 U.S.C.      of Federal Regulations.
before the Commissioner to determine         371 pursuant to §§ 1.494 or 1.495, he or
                                                                                           EFFECTIVE DATE: August 19, 1996.
whether a public use proceeding should       she must file an oath or declaration that:
                                                (1) Is executed in accordance with         FOR FURTHER INFORMATION CONTACT:
be instituted. If instituted, the                                                          Kenneth Corsello by telephone at (703)
Commissioner may designate an                either §§ 1.66 or 1.68;
                                                (2) Identifies the specification to        305–9041; by mail marked to his
appropriate official to conduct the                                                        attention and addressed to the Office of
public use proceeding, including the         which it is directed;
                                                (3) Identifies each inventor and the       the Solicitor, Box 8, Washington, D.C.
setting of times for taking testimony,                                                     20231; by electronic mail to
which shall be taken as provided by          country of citizenship of each inventor;
                                             and                                           corsello@uspto.gov; or by fax marked to
§§ 1.671 through 1.685. The petitioner                                                     his attention at (703) 305–9373.
will be heard in the proceedings but            (4) States that the person making the
                                             oath or declaration believes the named        SUPPLEMENTARY INFORMATION: In March
after decision therein will not be heard
further in the prosecution of the            inventor or inventors to be the original      1995, President Clinton issued a
application for patent.                      and first inventor or inventors of the        directive to Federal agencies regarding
   (b) The petition and accompanying         subject matter which is claimed and for       their responsibilities under his
papers, or a notice that such a petition     which a patent is sought.                     Regulatory Reform Initiative. This
has been filed, shall be entered in the         (b)(1) The oath or declaration must be     initiative is part of the National
application file if:                         made by all of the actual inventors           Performance Review and calls for
   (1) The petition is accompanied by        except as provided for in §§ 1.42, 1.43       immediate, comprehensive regulatory
the fee set forth in § 1.17(j);              or 1.47.                                      reform. The President directed all
   (2) The petition is served on the            (2) If the person making the oath or       agencies to undertake, as part of this
applicant in accordance with § 1.248, or     declaration is not the inventor, the oath     initiative, an exhaustive review of all of
filed with the Office in duplicate in the    or declaration shall state the                their regulations—with an emphasis on
event service is not possible; and           relationship of the person to the             eliminating or modifying those that are
   (3) The petition is submitted prior to    inventor, the facts required by §§ 1.42,      obsolete or otherwise in need of reform.
the mailing of a notice of allowance         1.43 or 1.47, and, upon information and       This final rule is part of the Regulatory
under § 1.311.                               belief, the facts which the inventor          Reform Initiative.
*      *     *     *     *                   would have been required to state.               The Department of Commerce
   25. Section 1.315 is revised to read as      (c) If the oath or declaration meets the   regulations dealing with service of
follows:                                     requirements of paragraphs (a) and (b) of     process (15 CFR Part 15) and with
                                             this section, the oath or declaration will    employee testimony and the production
§ 1.315   Delivery of patent.                be accepted as complying with 35              of documents (15 CFR Part 15a) apply
  The patent will be delivered or mailed     U.S.C. 371(c)(4) and §§ 1.494(c) or           to the PTO. Therefore, the PTO is
upon issuance to the correspondence          1.495(c). However, if the oath or             removing 37 CFR Parts 15 and 15a
address of record. See § 1.33(a).            declaration does not also meet the            because they are unnecessary and
  26. Section 1.321 is amended by            requirements of § 1.63, a supplemental        duplicative.
revising paragraph (c) to read as follows:   oath or declaration in compliance with           This rule is not a significant rule for
                                             § 1.63 will be required in accordance         the purposes of Executive Order 12866.
§ 1.321 Statutory disclaimers, including     with § 1.67.                                  Notice and comment is not required for
terminal disclaimers.
                                               Dated: August 13, 1996.                     this rulemaking because it relates to
*      *     *    *     *                                                                  agency management or personnel, 5
   (c) A terminal disclaimer, when filed     Bruce A. Lehman,
                                                                                           U.S.C. 553(a)(2), and thus no regulatory
to obviate a judicially created double       Assistant Secretary of Commerce and
                                             Commissioner of Patents and Trademarks.
                                                                                           flexibility analysis is required, 5 U.S.C.
patenting rejection in a patent                                                            603(a). This rule does not change the
application or in a reexamination            [FR Doc. 96–21073 Filed 8–16–96; 8:45 am]
                                                                                           paperwork burden imposed on the
proceeding, must:                            BILLING CODE 3510–16–P
                                                                                           public. See 44 U.S.C. 3501 et seq.
   (1) Comply with the provisions of
paragraphs (b)(2) through (b)(4) of this                                                   List of Subjects
section;                                     37 CFR Parts 15 and 15a
                                                                                           37 CFR Part 15
   (2) Be signed in accordance with          [Docket No. 960722200–6200–01]
paragraph (b)(1) of this section if filed                                                    Administrative practice and
in a patent application or in accordance     RIN 0651–XX07                                 procedure, Attorneys, Courts,
with paragraph (a)(1) of this section if                                                   Government employees.
filed in a reexamination proceeding; and     Service of Process; Testimony by
                                             Employees and the Production of               37 CFR Part 15a
   (3) Include a provision that any patent
granted on that application or any           Documents in Legal Proceedings                  Administrative practice and
patent subject to the reexamination                                                        procedure, Attorneys, Courts,
                                             AGENCY:  Patent and Trademark Office,
proceeding shall be enforceable only for                                                   Government employees.
                                             Commerce.
and during such period that said patent                                                      For the reasons set forth in the
                                             ACTION: Final rule.
is commonly owned with the                                                                 preamble, and pursuant to the authority
42808               Federal Register / Vol. 61, No. 161 / Monday, August 19, 1996 / Rules and Regulations

contained in 35 U.S.C. 6, 37 CFR                                           ADDRESSES:   Copies of the request for                                      Georgia Department of Natural
Chapter I is amended as follows:                                           delegation of authority and EPA’s letter                                      Resources, 4244 International
                                                                           of delegation are available for public                                        Parkway, Suite 120, Atlanta, Georgia
PART 15—[REMOVED AND                                                       inspection during normal business                                             30354.
RESERVED]                                                                  hours at the following locations.                                           Kentucky Natural Resources and
   1. Part 15 is removed and reserved.                                     Environmental Protection Agency,                                              Environmental Protection Cabinet,
                                                                             Region IV, Air Programs Branch, 345                                         803 Schenkel Lane, Frankfort,
PART 15a—[REMOVED AND                                                        Courtland Street, Atlanta, Georgia                                          Kentucky 40601.
RESERVED]                                                                    30365.                                                                    Mississippi Department of
                                                                           Alabama Department of Environmental                                           Environmental Quality, P.O. Box
   1. Part 15a is removed and reserved.                                      Management, 1751 Congressman                                                10385, Jackson, Mississippi 39289–
  Dated: August 13, 1996.                                                    W.L. Dickinson Drive, Montgomery,                                           0385.
Bruce A. Lehman,                                                             Alabama 36109.
                                                                           Florida Department of Environmental                                         North Carolina Department of
Assistant Secretary of Commerce and                                                                                                                      Environment, Health, and Natural
Commissioner of Patents and Trademarks.                                      Protection, Twin Towers Office
                                                                             Building, 2600 Blair Stone Road,                                            Resources, P.O. Box 29535, Raleigh,
[FR Doc. 96–21067 Filed 8–16–96; 8:45 am]                                                                                                                North Carolina 27626–0535.
                                                                             Tallahassee, Florida 32399–2400.
BILLING CODE 3510–16–M
                                                                           Georgia Department of Natural                                               South Carolina Department of Health
                                                                             Resources, 4244 International                                               and Environmental Control, 2600 Bull
                                                                             Parkway, Suite 120, Atlanta, Georgia                                        Street, Columbia, South Carolina
ENVIRONMENTAL PROTECTION                                                     30354.                                                                      29201.
AGENCY                                                                     Kentucky Natural Resources and                                              Knox County Department of Air
                                                                             Environmental Protection Cabinet,                                           Pollution Control, City/County
40 CFR Part 60                                                               803 Schenkel Lane, Frankfort,                                               Building, Suite 339, 400 West Main
                                                                             Kentucky 40601.                                                             Street, Knoxville, Tennessee 37902–
[FRL–5553–3]                                                               Mississippi Department of                                                     2045.
                                                                             Environmental Quality, P.O. Box                                           Nashville-Davidson County
New Stationary Sources; Supplemental                                         10385, Jackson, Mississippi 39289–                                          Metropolitan Health Department,
Delegation of Authority to Alabama,                                          0385.                                                                       311–23rd Avenue, North, Nashville,
Florida, Georgia, Kentucky,                                                North Carolina Department of
                                                                                                                                                         Tennessee 37203.
Mississippi, North Carolina, South                                           Environment, Health, and Natural
Carolina, Nashville-Davidson County,                                         Resources, P.O. Box 29535, Raleigh,                                       FOR FURTHER INFORMATION CONTACT:
Tennessee and Knox County,                                                   North Carolina 27626–0535.                                                Kimberly Bingham, Regulatory Planning
Tennessee                                                                  South Carolina Department of Health                                         and Development Section, Air Programs
                                                                             and Environmental Control, 2600 Bull                                      Branch, Environmental Protection
AGENCY: Environmental Protection                                             Street, Columbia, South Carolina                                          Agency, Region 4, 345 Courtland Street
Agency (EPA).                                                                29201.                                                                    N.E., Atlanta, Georgia 30365, (404) 347–
ACTION: Delegation of authority.                                           Knox County Department of Air                                               3555, x4195.
                                                                             Pollution Control, City/County                                            SUPPLEMENTARY INFORMATION:    Section
SUMMARY: The States or Local Agencies                                        Building, Suite 339, 400 West Main
of Alabama, Florida, Georgia, Kentucky,                                                                                                                301, in conjunction with Sections 110
                                                                             Street, Knoxville, Tennessee 37902–                                       and 111(c)(1) of the Clean Air Act as
Mississippi, North Carolina, South                                           2045.
Carolina, Nashville-Davidson County,                                                                                                                   amended November 15, 1990,
                                                                           Nashville-Davidson County
Tennessee and Knox County, Tennessee                                                                                                                   authorizes EPA to delegate authority to
                                                                             Metropolitan Health Department,
requested that EPA delegate authority                                                                                                                  implement and enforce the standards set
                                                                             311—23rd Avenue, North, Nashville,
for implementation and enforcement of                                        Tennessee 37203.                                                          out in 40 CFR Part 60, New Source
additional categories of New Source                                                                                                                    Performance Standards (NSPS).
                                                                             Effective immediately, all requests,
Performance Standards (NSPS). The                                          applications, reports and other                                               The EPA has already delegated the
EPA’s review of their pertinent laws,                                      correspondence required pursuant to                                         authority for implementation and
rules, and regulations prove to be                                         the delegated standards should not be                                       enforcement of the NSPS programs to
adequate and effective procedures for                                      submitted to the Region 4 office, but                                       the State or Local Agencies of Alabama,
the implementation and enforcement of                                      should instead be submitted to the                                          Florida, Georgia, Kentucky, Mississippi,
these Federal standards. This document                                     following address:                                                          North Carolina, South Carolina,
was written to inform the public of                                                                                                                    Nashville-Davidson County, Tennessee
                                                                           Alabama Department of Environmental
delegations that were made to the above                                                                                                                and Knox County, Tennessee. These
                                                                             Management, 1751 Congressman
mentioned Agencies for which a                                                                                                                         Agencies have subsequently requested a
                                                                             W.L. Dickinson Drive, Montgomery,
document was not previously written.                                         Alabama 36109.                                                            delegation of authority for
EFFECTIVE DATE: The effective date is                                      Florida Department of Environmental                                         implementation and enforcement of the
listed as the date of delegation and can                                     Protection, Twin Towers Office                                            following NSPS categories found in 40
be found in the SUPPLEMENTARY                                                Building, 2600 Blair Stone Road,                                          CFR Part 60.
INFORMATION Section of this action.                                          Tallahassee, Florida 32399–2400.                                          40 CFR Part 60

                                                    NSPS DELEGATION OF AUTHORITY FOR THE STATE OF ALABAMA
                                                                                                                                                                                                     Date dele-
                                                                                     Category                                                                                              Subpart     gated

Fossil Fuel Fired Steam Generators ......................................................................................................................................                  D            02/3/92
Electric Utility Steam Generating Units ..................................................................................................................................                 Da          02/20/91
Industrial Boilers .....................................................................................................................................................................   Db          02/20/91
                    Federal Register / Vol. 61, No. 161 / Monday, August 19, 1996 / Rules and Regulations                                                                                                42809

                                         NSPS DELEGATION OF AUTHORITY FOR THE STATE OF ALABAMA—Continued
                                                                                                                                                                                                       Date dele-
                                                                                     Category                                                                                                Subpart     gated

Incinerators .............................................................................................................................................................................   E           02/20/91
Municipal Combustors ............................................................................................................................................................            Ea          02/03/92
Ferroalloy Production Facilities ..............................................................................................................................................              Z           02/20/91
Kraft Pulp Mills .......................................................................................................................................................................     BB          02/20/91
Surface Coating of Metal Furniture ........................................................................................................................................                  EE          02/03/92
Pressure Sensitive Tape and Label Surface Coating Operations .........................................................................................                                       RR          02/03/92
Industrial Surface Coating: Large Appliances ........................................................................................................................                        SS          02/03/92
Metal Coil Surface Coating ....................................................................................................................................................              TT          02/03/92
Beverage Can Surface Coating Industry ...............................................................................................................................                        WW          02/03/92
Rubber Tire Manufacturing Industry .......................................................................................................................................                   BBB         02/20/91
VOC Emissions from the Polymer Manufacturing Industry ...................................................................................................                                    DDD         02/20/91
Synthetic Fiber Production Facilities ......................................................................................................................................                 HHH         02/03/92
VOC Emissions from SOCMI Air Oxidation Unit Processes .................................................................................................                                      III         06/10/91
Petroleum Dry Cleaners .........................................................................................................................................................             JJJ         06/02/87
Onshore Natural Gas Processing—VOC ...............................................................................................................................                           KKK         06/02/87
Onshore Natural Gas Processing—SO2 ................................................................................................................................                          LLL         06/02/87
VOC Emissions from SOCMI Distillation Operations .............................................................................................................                               NNN         06/10/91
Nonmetallic Mineral Processing Plants ..................................................................................................................................                     OOO         10/30/89
Wool Fiberglass Insulation .....................................................................................................................................................             PPP         10/30/89
VOC Emissions from Petroleum Refinery Wastewater Systems ...........................................................................................                                         QQQ         10/30/89
VOC Emissions from SOCMI Reactor Processes .................................................................................................................                                 RRR         11/29/95
Magnetic Tape Coating Facilities ...........................................................................................................................................                 SSS         10/30/89
Plastic Parts for Business Machines Coating ........................................................................................................................                         TTT         02/03/92
Calciners and Dryers in Mineral Industries ............................................................................................................................                      UUU         02/01/96
Polymeric Coating of Supporting Substrates Facilities ..........................................................................................................                             VVV         02/20/91


                                                     NSPS DELEGATION OF AUTHORITY FOR THE STATE OF FLORIDA
                                                                                                                                                                                                       Date dele-
                                                                                     Category                                                                                                Subpart     gated

Primary Copper Smelters .......................................................................................................................................................              P           09/03/93
Primary Zinc Smelters ............................................................................................................................................................           Q           09/03/93
Primary Lead Smelters ...........................................................................................................................................................            R           09/03/93
Primary Aluminum Reduction Plants ......................................................................................................................................                     S           09/03/93
Coal Preparation Plants .........................................................................................................................................................            Y           09/03/93
Steel Plants: Electric Arc Furnaces and Argon-Oxygen Decarburization Vessels (8/7/93) ..................................................                                                     AAa         09/03/93
Glass Manufacturing Plants ...................................................................................................................................................               CC          09/03/93
Surface Coating of Metal Furniture ........................................................................................................................................                  EE          09/03/93
Lead-Acid Battery Manufacturing Plants ................................................................................................................................                      KK          09/03/93
Metallic Mineral Processing Plants ........................................................................................................................................                  LL          09/03/93
Phosphate Rock Plants ..........................................................................................................................................................             NN          09/03/93
Graphic Arts Industry: Publication Rotogravure Printing .......................................................................................................                              QQ          09/03/93
Pressure Sensitive Tape and Label Surface Coating Operations .........................................................................................                                       RR          09/03/93
Industrial Surface Coating: Large Appliances ........................................................................................................................                        SS          09/03/93
Metal Coil Surface Coating ....................................................................................................................................................              TT          09/03/93
Asphalt Processing and Asphalt Roofing Manufacture ..........................................................................................................                                UU          09/03/93
Equipment Leaks of VOC in Synthetic Organic Chemical Manufacturing Industry ...............................................................                                                  VV          09/03/93
Beverage Can Surface Coating Industry ...............................................................................................................................                        WW          09/03/93
Bulk Gasoline Terminals ........................................................................................................................................................             XX          09/03/93
VOC Emissions from the Polymer Manufacturing Industry ...................................................................................................                                    DDD         09/03/93
Flexible Vinyl and Urethane Coating and Printing .................................................................................................................                           FFF         09/03/93
Equipment Leaks of VOC in Petroleum Refineries ................................................................................................................                              GGG         09/03/93
Synthetic Fiber Production Facilities ......................................................................................................................................                 HHH         09/03/93
VOC Emissions from SOCMI Air Oxidation Unit Processes .................................................................................................                                      III         09/03/93
Petroleum Dry Cleaners .........................................................................................................................................................             JJJ         09/03/93
Onshore Natural Gas Processing—VOC ...............................................................................................................................                           KKK         09/03/93
Onshore Natural Gas Processing—SO2 ................................................................................................................................                          LLL         09/03/93
VOC Emissions from SOCMI Distillation Operations .............................................................................................................                               NNN         09/03/93
Nonmetallic Mineral Processing Plants ..................................................................................................................................                     OOO         09/03/93
Wool Fiberglass Insulation .....................................................................................................................................................             PPP         09/03/93
Polymeric Coating of Supporting Substrates Facilities ..........................................................................................................                             VVV         09/03/93


                                                     NSPS DELEGATION OF AUTHORITY FOR THE STATE OF GEORGIA
                                                                                                                                                                                                       Date Dele-
                                                                                     Category                                                                                                Subpart     gated

Industrial Boilers .....................................................................................................................................................................     Db          06/02/88
42810               Federal Register / Vol. 61, No. 161 / Monday, August 19, 1996 / Rules and Regulations

                                         NSPS DELEGATION OF AUTHORITY FOR THE STATE OF GEORGIA—Continued
                                                                                                                                                                                                       Date Dele-
                                                                                     Category                                                                                                Subpart     gated

Petroleum Refineries ..............................................................................................................................................................          J           06/02/88
Storage Vessels for Petroleum Liquids (6/11/73–5/19/78) ....................................................................................................                                 K           01/24/89
Storage Vessels for Petroleum Liquids (5/18/78) ..................................................................................................................                           Ka          06/02/88
Storage Vessels after (07/23/84) ...........................................................................................................................................                 Kb          06/02/88
Automobile and Light Duty Truck Coating Operations ..........................................................................................................                                MM          06/02/88
Graphic Arts Industry: Publication Rotogravure Printing .......................................................................................................                              QQ          06/17/85
Pressure Sensitive Tape and Label Surface Coating Operations .........................................................................................                                       RR          06/17/85
Industrial Surface Coating: Large Appliances ........................................................................................................................                        SS          06/17/85
Metal Coil Surface Coating ....................................................................................................................................................              TT          06/02/88
Residential Wood Heaters ......................................................................................................................................................              WW          06/17/85
Flexible Vinyl and Urethane Coating and Printing .................................................................................................................                           FFF         06/17/85
Equipment Leaks of VOC in Petroleum Refineries ................................................................................................................                              GGG         06/17/85
Synthetic Fiber Production Facilities ......................................................................................................................................                 HHH         06/17/85
Petroleum Dry Cleaners .........................................................................................................................................................             JJJ         06/02/88


                                                   NSPS DELEGATION OF AUTHORITY FOR THE STATE OF KENTUCKY
                                                                                                                                                                                                       Date dele-
                                                                                     Category                                                                                                Subpart     gated

Fossil-Fuel Fired Steam Generators (8/71–9/78) ..................................................................................................................                            D           07/06/82
Electric Utility Steam Generating Units (9/78) .......................................................................................................................                       Da          03/26/81
Incinerators .............................................................................................................................................................................   E           04/12/77


                                                  NSPS DELEGATION OF AUTHORITY FOR THE STATE OF MISSISSIPPI
                                                                                                                                                                                                       Date dele-
                                                                                     Category                                                                                                Subpart     gated

Fossil-Fuel Fired Steam Generators (8/71–9/78) ..................................................................................................................                            D           09/09/91
Electric Utility Steam Generating Units (9/78) .......................................................................................................................                       Da          09/09/91
Industrial Boilers .....................................................................................................................................................................     Db          09/09/91
Small Industrial-Commercial-Institutional Steam Gen. ...........................................................................................................                             Dc          09/09/91
Incinerators .............................................................................................................................................................................   E           09/09/91
Municipal Combustors ............................................................................................................................................................            Ea          09/09/91
Portland Cement Plants .........................................................................................................................................................             F           09/09/91
Nitric Acid Plants ....................................................................................................................................................................      G           09/09/91
Sulfuric Acid Plants ................................................................................................................................................................        H           09/09/91
Hot Mix Asphalt Facilities .......................................................................................................................................................           I           09/09/91
Petroleum Refineries ..............................................................................................................................................................          J           09/09/91
Secondary Lead Smelters ......................................................................................................................................................               L           09/09/91
Secondary Brass and Bronze Ingot Production Plants ..........................................................................................................                                M           09/09/91
Iron and Steel Plants ..............................................................................................................................................................         N           09/09/91
Secondary Emissions From BOP Steel Facilities (01/20/83) ................................................................................................                                    Na          09/09/91
Sewage Treatment Plants ......................................................................................................................................................               O           09/09/91
Primary Copper Smelters .......................................................................................................................................................              P           09/09/91
Primary Zinc Smelters ............................................................................................................................................................           Q           09/09/91
Primary Lead Smelters ...........................................................................................................................................................            R           09/09/91
Primary Aluminum Reduction Plants ......................................................................................................................................                     S           09/09/91
Phosphate Fertilizer Industry: Wet Process Phosphoric Acid Plants ....................................................................................                                       T           09/09/91
Phosphate Fertilizer Industry: Superphosphoric Acid Plants .................................................................................................                                 U           09/09/91
Phosphate Fertilizer Industry: Diammonium Phosphate Plants .............................................................................................                                     V           09/09/91
Phosphate Fertilizer Industry: Triple Superphosphate Plants ................................................................................................                                 W           09/09/91
Phosphate Fertilizer Industry: Granular Triple Superphosphate Storage ..............................................................................                                         X           09/09/91
Coal Preparation Plants .........................................................................................................................................................            Y           09/09/91
Ferroalloy Production Facilities ..............................................................................................................................................              Z           09/09/91
Steel Plants: Electric Arc Furnaces ........................................................................................................................................                 AA          09/09/91
Steel Plants: Electric Arc Furnaces and Argon-Oxygen Decarburization ..............................................................................                                          AAa         09/09/91
Kraft Pulp Mills .......................................................................................................................................................................     BB          09/09/91
Glass Manufacturing Plants ...................................................................................................................................................               CC          09/09/91
Grain Elevators .......................................................................................................................................................................      DD          09/09/91
Surface Coating of Metal Furniture ........................................................................................................................................                  EE          09/09/91
Stationary Gas Turbines .........................................................................................................................................................            GG          09/09/91
Lime Manufacturing Plants .....................................................................................................................................................              HH          09/09/91
Lead-Acid Battery Manufacturing Plants ................................................................................................................................                      KK          09/09/91
Metallic Mineral Processing Plants ........................................................................................................................................                  LL          09/09/91
Automobile and Light Duty Truck Coating Operations ..........................................................................................................                                MM          09/09/91
Phosphate Rock Plants ..........................................................................................................................................................             NN          09/09/91
Ammonium Sulfate Manufacture ............................................................................................................................................                    PP          09/09/91
                    Federal Register / Vol. 61, No. 161 / Monday, August 19, 1996 / Rules and Regulations                                                                                                42811

                                      NSPS DELEGATION OF AUTHORITY FOR THE STATE OF MISSISSIPPI—Continued
                                                                                                                                                                                                       Date dele-
                                                                                     Category                                                                                                Subpart     gated

Graphic Arts Industry: Publication Rotogravure Printing .......................................................................................................                              QQ          06/13/84
Pressure Sensitive Tape and Label Surface Coating Operations .........................................................................................                                       RR          09/09/91
Industrial Surface Coating: Large Appliances ........................................................................................................................                        SS          09/09/91
Metal Coil Surface Coating ....................................................................................................................................................              TT          09/09/91
Asphalt Processing and Asphalt Roofing Manufacture ..........................................................................................................                                UU          09/09/91
Equipment Leaks of VOC in Synthetic Organic Chemical Manufacturing Industry ...............................................................                                                  VV          09/09/91
Beverage Can Surface Coating Industry ...............................................................................................................................                        WW          09/09/91
Bulk Gasoline Terminals ........................................................................................................................................................             XX          09/09/91
Rubber Tire Manufacturing Industry .......................................................................................................................................                   BBB         09/09/91
VOC Emissions from the Polymer Manufacturing Industry ...................................................................................................                                    DDD         09/09/91
Flexible Vinyl and Urethane Coating and Printing .................................................................................................................                           FFF         09/20/85
Equipment Leaks of VOC in Petroleum .................................................................................................................................                        GGG         09/20/85
Synthetic Fiber Production Facilities ......................................................................................................................................                 HHH         09/09/91
VOC Emissions from SOCMI Air Oxidation Unit Processes .................................................................................................                                      III         09/09/91
Petroleum Dry Cleaners .........................................................................................................................................................             JJJ         12/19/86
Onshore Natural Gas Processing—VOC ...............................................................................................................................                           KKK         12/19/86
Onshore Natural Gas Processing—SO2 ................................................................................................................................                          LLL         09/09/91
VOC Emissions from SOCMI Distillation Operations .............................................................................................................                               NNN         09/09/91
Nonmetallic Mineral Processing Plants ..................................................................................................................................                     OOO         09/09/91
Wool Fiberglass Insulation .....................................................................................................................................................             PPP         09/09/91
VOC Emissions from Petroleum Refinery Wastewater Systems ...........................................................................................                                         QQQ         05/31/89
VOC Emissions from SOCMI Reactor Processes .................................................................................................................                                 RRR         02/16/94
Magnetic Tape Coating Facilities ...........................................................................................................................................                 SSS         05/31/89
Plastic Parts for Business Machines Coating ........................................................................................................................                         TTT         09/09/91
Calciners and Dryers in Mineral Industries ............................................................................................................................                      UUU         02/16/94
Polymeric Coating of Supporting Substrates Facilities ..........................................................................................................                             VVV         09/09/91


                                             NSPS DELEGATION OF AUTHORITY FOR THE STATE OF NORTH CAROLINA
                                                                                                                                                                                                       Date dele-
                                                                                     Category                                                                                                Subpart     gated

Electric Utility Steam Generating Units (9/78) .......................................................................................................................                       Da          12/04/81
Small Industrial-Commercial-Institutional Steam Gen ............................................................................................................                             Dc          02/27/95
Incinerators .............................................................................................................................................................................   E           11/24/76
Municipal Combustors ............................................................................................................................................................            Ea          02/27/95
Portland Cement Plants .........................................................................................................................................................             F           11/24/76
Nitric Acid Plants ....................................................................................................................................................................      G           11/24/76
Sulfuric Acid Plants ................................................................................................................................................................        H           11/24/76
Hot Mix Asphalt Facilities .......................................................................................................................................................           I           11/24/76
Storage Vessels for Petroleum Liquids (6/11/73–5/19/78) ....................................................................................................                                 K           11/24/76
Secondary Lead Smelters ......................................................................................................................................................               L           11/24/76
Secondary Brass and Bronze Ingot Production Plants ..........................................................................................................                                M           11/24/76
Sewage Treatment Plants ......................................................................................................................................................               O           11/24/76
Primary Copper Smelters .......................................................................................................................................................              P           11/24/76
Primary Zinc Smelters ............................................................................................................................................................           Q           11/24/76
Primary Lead Smelters ...........................................................................................................................................................            R           11/24/76
Primary Aluminum Reduction Plants ......................................................................................................................................                     S           11/24/76
Phosphate Fertilizer Industry: Wet Process Phosphoric Acid Plants ....................................................................................                                       T           11/24/76
Phosphate Fertilizer Industry: Superphosphoric Acid Plants .................................................................................................                                 U           11/24/76
Phosphate Fertilizer Industry: Diammonium Phosphate Plants .............................................................................................                                     V           11/24/76
Phosphate Fertilizer Industry: Triple Superphosphate Plants ................................................................................................                                 W           11/24/76
Phosphate Fertilizer Industry: Granular Triple Superphosphate Storage ..............................................................................                                         X           11/24/76
Coal Preparation Plants .........................................................................................................................................................            Y           11/24/76
Ferroalloy Production Facilities ..............................................................................................................................................              Z           10/22/80
Steel Plants: Electric Arc Furnaces ........................................................................................................................................                 AA          11/24/76
Kraft Pulp Mills .......................................................................................................................................................................     BB          10/22/80
Glass Manufacturing Plants ...................................................................................................................................................               CC          10/19/82
Grain Elevators .......................................................................................................................................................................      DD          10/22/80
Stationary Gas Turbines .........................................................................................................................................................            GG          12/04/81
Lead-Acid Battery Manufacturing Plants ................................................................................................................................                      KK          10/19/82
Automobile and Light Duty Truck Coating Operations ..........................................................................................................                                MM          10/19/82
Phosphate Rock Plants ..........................................................................................................................................................             NN          10/19/82
Ammonium Sulfate Manufacture ............................................................................................................................................                    PP          10/19/82
VOC Emissions from the Polymer Manufacturing Industry ...................................................................................................                                    DDD         02/27/95
VOC Emissions from Petroleum Refinery Wastewater Systems ...........................................................................................                                         QQQ         08/29/89
Magnetic Tape Coating Facilities ...........................................................................................................................................                 SSS         08/29/89
Plastic Parts for Business Machines Coating ........................................................................................................................                         TTT         08/29/89
Calciners and Dryers in Mineral Industries ............................................................................................................................                      UUU         02/27/95
42812               Federal Register / Vol. 61, No. 161 / Monday, August 19, 1996 / Rules and Regulations

                                            NSPS DELEGATION OF AUTHORITY FOR THE STATE OF SOUTH CAROLINA
                                                                                                                                                                                                     Date Dele-
                                                                                     Category                                                                                              Subpart     gated

Industrial Boilers .....................................................................................................................................................................   Db          01/24/89
Portland Cement Plants .........................................................................................................................................................           F           01/23/90
Graphic Arts Industry: Publication Rotogravure Printing .......................................................................................................                            QQ          04/23/83
Rubber Tire Manufacturing Industry .......................................................................................................................................                 BBB         01/23/90
VOC Emissions from SOCMI Air Oxidation Unit Processes .................................................................................................                                    III         08/07/90
VOC Emissions from SOCMI Distillation Operations .............................................................................................................                             NNN         08/07/90
VOC Emissions from Petroleum Refinery Wastewater Systems ...........................................................................................                                       QQQ         01/24/89
Magnetic Tape Coating Facilities ...........................................................................................................................................               SSS         01/23/90
Plastic Parts for Business Machines Coating ........................................................................................................................                       TTT         02/23/90
Polymeric Coating of Supporting Substrates Facilities ..........................................................................................................                           VVV         01/23/90


                                                    NSPS DELEGATION OF AUTHORITY FOR KNOXVILLE, TENNESSEE
                                                                                                                                                                                                     Date dele-
                                                                                     Category                                                                                              Subpart     gated

Calciners and Dryers in Mineral Industries ............................................................................................................................                    UUU         04/10/95
Polymeric Coating of Supporting Substrates Facilities ..........................................................................................................                           VVV         03/01/90


                                          NSPS DELEGATION OF AUTHORITY FOR NASHVILLE-DAVIDSON, TENNESSEE
                                                                                                                                                                                                     Date dele-
                                                                                     Category                                                                                              Subpart     gated

VOC Emissions from SOCMI Reactor Processes .................................................................................................................                               RRR         09/11/95



   The above listed NSPS categories are                                    25. Subpart RRR—§ 60.703(e)                                                 301 of the Clean Air Act, as Amended (42
delegated with the exception of the                                        26. Subpart SSS—§ 60.711(a)(16),                                            U.S.C. 7401, 7410, 7411, 7412, and 7601).
following sections within those subparts                                      § 60.713(b)(1)(i), § 60.713(b)(1)(ii),                                     Dated: July 3, 1996.
which may not be delegated.                                                   § 60.713(b)(5)(i), § 60.713(d),                                          John H. Hankinson, Jr.,
1. Subpart A—§ 60.8(b) (1) thru (5),                                          § 60.715(a), § 60.716                                                    Regional Administrator.
   § 60.11(e) (7) and (8), § 60.13 (g), (i)                                27. Subpart TTT—§ 60.723(b)(1),                                             [FR Doc. 96–21077 Filed 8–16–96; 8:45 am]
   and (j)(2)                                                                 § 60.723(b)(2)(i)(C), § 60.723(b)(2)(iv),                                BILLING CODE 6560–50–P
2. Subpart B—§ 60.22, § 60.27, and                                            § 60.724(e), § 60.725(b)
   § 60.29                                                                 28. Subpart VVV—§ 60.743(a)(3)(v)(A)
3. Subpart Da—§ 60.45a                                                        and (B), § 60.743(e), § 60.745(a),                                       40 CFR Part 80
4. Subpart Db—§ 60.44b(f), § 60.44b(g),                                       § 60.746
   § 60.49(a)(4)                                                              After a thorough review of the                                           [FRL–5555–5]
5. Subpart Dc—§ 60.48c(a)(4)                                               request, the Regional Administrator
6. Subpart J—§ 60.105(a)(13)(iii),                                         determined that such a delegation was                                       State of Alaska Petition for Exemption
   § 60.106(i)(12)                                                         appropriate for the source categories                                       From Diesel Fuel Sulfur Requirement
7. Subpart Ka—§ 60.114a                                                    with the conditions set forth in the                                        AGENCY: Environmental Protection
8. Subpart Kb—§ 60.111b(f)(4),                                             original delegation letters of these State                                  Agency (EPA).
   § 60.114b, § 60.116b(e)(3) (iii) and (iv),                              or Local agencies. All sources subject to
   § 60.116b(f)(2)(iii)                                                                                                                                ACTION: Notice of direct final decision.
                                                                           the requirements of 40 CFR Part 60 will
9. Subpart O—§ 60.153(e)                                                   now be under the jurisdiction of the                                        SUMMARY:   On March 14, 1994, EPA
10. Subpart EE—§ 60.316(d)                                                 above mentioned State or Local
11. Subpart GG—§ 60.334(b)(2),                                                                                                                         granted the State of Alaska a waiver
                                                                           Agencies.                                                                   from the requirements of EPA’s low
   § 60.335(f)(1)                                                             Since review of the pertinent laws,
12. Subpart RR—§ 60.446(c)                                                                                                                             sulfur diesel fuel program, permanently
                                                                           rules, and regulations of these State or                                    exempting Alaska’s remote areas and
13. Subpart SS—§ 60.456(d)
                                                                           Local Agencies has shown them to be                                         providing a temporary exemption for
14. Subpart TT—§ 60.466(d)
                                                                           adequate for the implementation and                                         areas of Alaska served by the Federal
15. Subpart UU—§ 60.474(g)
16. Subpart VV—§ 60.482–1(c)(2) and                                        enforcement of the aforementioned                                           Aid Highway System (FAHS). The
   § 60.484                                                                categories of NSPS, the EPA hereby                                          exemption applied to certain
17. Subpart WW—§ 60.496(c)                                                 notifies the public that it has delegated                                   requirements in section 211(i) and (g) of
18. Subpart XX—§ 60.502(e)(6)                                              the authority for the source categories                                     the Clean Air Act, as implemented in
19. Subpart AAA—§ 60.530(c), § 60.533,                                     listed on the above various dates. The                                      EPA’s regulations. These exemptions
   § 60.534, § 60.535, § 60.536(i)(2),                                     Office of Management and Budget has                                         were based on EPA’s determination that
   § 60.537, § 60.538(e), § 60.539                                         exempted this rule from the                                                 it would be unreasonable to require
20. Subpart BBB—§ 60.543(c)(2)(ii)(B)                                      requirements of section 6 of Executive                                      persons in these areas to comply with
22. Subpart DDD—§ 60.562–2(c)                                              Order 12866.                                                                the low sulfur diesel fuel requirements
23. Subpart III—§ 60.613                                                     Authority: This notice is issued under the                                due to unique geographical,
24. Subpart NNN—§ 60.663(e)                                                authority of sections 101, 110, 111, 112, and                               meteorological and economic factors for
                   Federal Register / Vol. 61, No. 161 / Monday, August 19, 1996 / Rules and Regulations                                                          42813

Alaska, as well as other significant local                            attain the National Ambient Air Quality             Energy Division (6406J), 401 M Street
factors.                                                              Standards for carbon monoxide and                   S.W., Washington, D.C. 20460, (202)
   The temporary exemption for the                                    particulate matter, based on the limited            233–9004.
areas of Alaska served by the FAHS will                               contribution of emissions from diesel
                                                                                                                          SUPPLEMENTARY INFORMATION:
expire on October 1, 1996. On December                                motor vehicles in those areas and the
12, 1995, the Governor of Alaska                                      sulfur level currently found in motor               Table of Contents
petitioned EPA to permanently exempt                                  vehicle diesel fuel used in Alaska.                 I. Regulated Entities
the areas covered by the temporary                                    DATES: This action will become effective            II. Electronic Copies of Rulemaking
exemption. In this decision EPA is                                    October 3, 1996 unless adverse                            Documents
extending the temporary exemption for                                 comments or a request for a public                  III. Background
an additional 24 months, but reserving                                                                                    IV. Petition for Exemption
                                                                      hearing are received by September 18,               V. Decision for Extending Current Temporary
a final decision on whether it should be                              1996. If EPA receives such comments or
permanent.                                                                                                                      Exemption
                                                                      a request for a public hearing, EPA will            VI. Public Participation
   Based on the factors and conditions
                                                                      publish a timely notice in the Federal              VII. Statutory Authority
identified in Alaska’s December 12,
                                                                      Register withdrawing this rule.                     VIII. Administrative Designation and
1995 petition, a continuation of the                                                                                            Regulatory Analysis
exemption is warranted at least                                       ADDRESSES: Copies of information
                                                                                                                          IX. Compliance With the Regulatory
temporarily. However, EPA believes that                               relevant to this petition are available for               Flexibility Act
recent comments submitted to the                                      inspection in public docket A–96–26 at              X. Paperwork Reduction Act
agency merit further investigation before                             the Air Docket of the EPA, first floor,             XI. Submission to Congress and the General
making a final decision on a permanent                                Waterside Mall, room M–1500, 401 M                        Accounting Office
exemption. EPA is therefore extending                                 Street S.W., Washington, D.C. 20460,                XII. Unfunded Mandates Act
the temporary exemption until October                                 (202) 260–7548, between the hours of
                                                                                                                          I. Regulated Entities
1, 1998, or until such time that a final                              8:00 a.m. to 5:30 p.m. Monday through
decision is made on the permanent                                     Friday. A reasonable fee may be charged               Entities potentially regulated by this
exemption, whichever is shorter.                                      for copying docket materials.                       action are refiners, marketers,
   This decision will continue the                                    FOR FURTHER INFORMATION CONTACT: Mr.                distributors, retailers and wholesale
current status in Alaska. It is not                                   Paul N. Argyropoulos, Environmental                 purchaser-consumers of diesel fuel.
expected to have a significant impact on                              Protection Specialist, Fuels                        Regulated categories and entities
the ability of Alaska’s communities to                                Implementation Group, Fuels and                     include:

                        Category                                                                      Examples of regulated entities

Industry ......................................................   Petroluem distributors, marketers, retailers (service station owners and operators), wholesale pur-
                                                                    chaser consumers (fleet managers who operate a refueling facility to refuel motor vehicles).
Citizens ......................................................   Any owner or operator of a diesel motor vehicle.
Federal Government ..................................             Federal facilities, including military bases which operate a refueling facility to refuel motor vehicles.



   This table is not intended to be                                   charge, except for your existing cost of               TECHNICAL AREAS (Bulletin
exhaustive, but rather provides a guide                               Internet connectivity or the cost of the               Boards) (Command: T)
for readers regarding entities likely to be                           phone call to TTN. Users are able to                2. TTN TECHNICAL INFORMATION
regulated by this action. This table lists                            access and download files on their first               AREAS: <M> OMS—Mobile Sources
the types of entities that EPA is now                                 call using a personal computer per the                 Information (Command: M)
aware could potentially be regulated by                               following information. Any one of the               3. OMS BBS—MAIN MENU FILE
this action. Other types of entities not                              following Internet addresses may be                    TRANSFERS: <O> Other OMS
listed in the table could also be                                     used:                                                  Documents (Command: O)
regulated. To determine whether your                                  World Wide Web:                                        At this stage, the system will list all
facility is regulated by this action, you                                http://www.epa.gov/OMSWWW/                       available files in this area. To download
should carefully examine the criteria                                 Gopher:                                             a file, select a transfer protocol that will
contained in § 80.29 and § 80.30 of title                                gopher://gopher.epa.gov/ Follow                  match the terminal software on your
40 of the Code of Federal Regulations as                                    menus for: Offices/Air/OMS                    computer, then set your own software to
modified by today’s action. If you have                               FTP:                                                receive the file using that same protocol.
questions regarding the applicability of                                 ftp://ftp.epa.gov/ Change Directory to           If unfamiliar with handling compressed
this action to a particular entity, consult                                 pub/gopher/OMS                                (that is, ZIP’d) files, go to the TTN top
one of the persons listed in the                                         The steps required to access                     menu, System Utilities (Command: 1)
preceding FOR FURTHER INFORMATION                                     information on this rulemaking on the               for information and the necessary
CONTACT section.                                                      TTN bulletin board system are listed                program to download in order to unZIP
                                                                      below.                                              the files of interest after downloading to
II. Electronic Copies of Rulemaking
                                                                      TTN BBS: 919–541–5742 (1,200–14,400                 your computer. After getting the files
Documents
                                                                         bps, no parity, eight data bits, one             you want onto your computer, you can
  A copy of this document is also                                        stop bit)                                        quit TTN BBS with the <G>oodbye
available electronically from the EPA                                 Voice help: 919–541–5384                            command.
Internet site and via dial-up modem on                                Internet address: TELNET
the Technology Transfer Network                                                                                           III. Background
                                                                         ttnbbs.rtpnc.epa.gov
(TTN), which is an electronic bulletin                                Off-line: Mondays from 8:00–12:00                      Section 211(i)(1) of the Act prohibits
board system (BBS) operated by EPA’s                                     Noon ET                                          the manufacture, sale, supply, offering
Office of Air Quality Planning and                                    1. Technology Transfer Network Top                  for sale or supply, dispensing, transport,
Standards. Both services are free of                                     Menu: <T> GATEWAY TO TTN                         or introduction into commerce of motor
42814          Federal Register / Vol. 61, No. 161 / Monday, August 19, 1996 / Rules and Regulations

vehicle diesel fuel which contains a                     (FAHS) from meeting the sulfur content       by barge lines and are referred to as off-
concentration of sulfur in excess of 0.05                requirement specified in section 211(i)      highway or ‘‘remote’’ communities.
percent (by weight), or which fails to                   until October 1, 1996. The petition also     Although barge lines can directly access
meet a cetane index minimum of 40                        requested a permanent exemption from         some off-highway communities, those
beginning October 1, 1993. Section                       such requirements for those areas of         communities that are not located on a
211(i)(3) establishes the sulfur content                 Alaska not reachable by the Federal Aid      navigable waterway are served by a two-
for fuel used in the certification of                    Highway System. The petition was             stage delivery system: over water by
heavy-duty diesel vehicles and engines.                  based on geographical, meteorological,       barge line and then over land to reach
Section 211(i)(4) provides that the States               air quality, and economic factors unique     the community.
of Alaska and Hawaii may seek an                         to the State of Alaska.                         Because of the State’s high latitude, it
exemption from the requirements of this                     The petition was granted on March         experiences seasonal extremes in the
subsection in the same manner as                         14, 1994 and applied to all persons in       amount of daily sunlight and
provided in section 325 1 of the Act, and                Alaska subject to section 211(i)(1) and      temperature, which in turn affects the
requires the Administrator to take final                 (g) of the Act and EPA’s low sulfur          period of time during which
action on any petition filed under this                  requirement for motor vehicle diesel         construction can occur, and, ultimately,
section, which seeks exemption from                      fuel in 40 CFR Part 80.29. Persons in        the cost of construction in Alaska.
the requirements of section 211(i),                      communities served by the FAHS are              According to the petition, Alaska’s
within 12 months of the date of such                     exempt from compliance with the diesel       extreme northern location places it in a
petition.                                                fuel sulfur content requirement until        unique position to fuel transcontinental
   Section 325 of the Act provides that                  October 1, 1996. Persons in                  cargo flights between Europe, Asia, and
upon application by the Governor of                      communities that are not served by the       North America. Roughly 75% of all air
Guam, American Samoa, the Virgin                         Federal Aid Highway System are               transit freight between Europe and Asia
Islands, or the Commonwealth of the                      permanently exempt from compliance           lands in Anchorage, as does that
Northern Mariana Islands, the                            with the diesel fuel sulfur content          between Asia and the United States. The
Administrator may exempt any person                      requirement. Both the permanent and          result is a large market for Jet-A fuel
or source in such territory from any                     temporary exemption apply to all             produced by local refiners, which
requirement of the Act, with some                        persons who manufacture, sell, supply,       decreases the importance of highway
specific exceptions. Such exemption                      offer for sale or supply, dispense,          diesel fuel to these refiners. Based on
may be granted if the Administrator                      transport, or introduce into commerce,       State tax revenue receipts and estimates
finds that compliance with such                          in the State of Alaska, motor vehicle        by Alaska’s refiners, diesel fuel
requirements is not feasible or is                       diesel fuel. Alaska’s exemption does not     consumption for highway use represents
unreasonable due to unique                               apply to the minimum cetane                  roughly 5% of total state distillate fuel
geographical, meteorological, or                         requirement for motor vehicle diesel         consumption.
economic factors of such territory, or                   fuel.                                        B. Climate, Meteorology and Air Quality
such other local factors as the                             On December 12, 1995, the Honorable
Administrator deems significant.                         Governor Knowles petitioned the                 Alaska’s climate is colder than that of
                                                         Administrator for a permanent                the other 49 states. The extremely low
IV. Petition for Exemption                                                                            temperatures experienced in Alaska
                                                         exemption for all areas of the state
  On February 12, 1993, the Honorable                    covered by the Federal Aid Highway           during the winter imposes a more severe
Walter J. Hickel, Governor of the State                  System. This notice addresses EPA’s          fuel specification requirement for diesel
of Alaska, submitted a petition to                       action on the petition submitted on          fuel in Alaska than in the rest of the
exempt motor vehicle diesel fuel in                      December 12, 1995. We are making a           country. This specification, known as a
Alaska from all of the requirements of                   decision now for the 24 month                ‘‘cloud point’’ specification 2
section 211(i) except the minimum                        extension and reserving the decision on      significantly affects vehicle start-up and
cetane index requirement of 40. The                      the state’s request for a permanent          other engine operations. Alaska has the
petition requested a short-term                          exemption, so the agency may consider        most severe cloud point specification
exemption for areas accessible by the                    possible alternatives for a longer period.   for diesel fuel in the U.S. at ¥56°F.
Federal Aid Highway System (‘‘on-                           The following discussion summarizes       Because Alaska experiences extremely
highway’’) and a permanent exemption                     the state’s support for the exemption as     low temperatures in comparison to the
for areas not accessible by the Federal                  provided for in the petition, and the        other 49 state’s and the cloud point
Aid Highway System (‘‘off-highway’’).                    rationale for the agency’s extension of      specifications are not as severe for fuel
The petition for a short-term exemption                  the temporary exemption.                     in the lower 48 states, most diesel fuel
requested that EPA exempt motor                                                                       used in the State of Alaska is produced
vehicle diesel fuel manufactured for                     A. Geography and Location of the State       by refiners located in Alaska. Jet-A
sale, sold, supplied, or transported                     of Alaska                                    kerosene meets the same cloud point
within the Federal Aid Highway System                      Alaska is about one-fifth as large as      specification as No. 1 diesel fuel (which
                                                         the combined area of the lower 48            is marketed primarily during the winter
  1 Section 211(i) (4) mistakenly refers to
                                                         states. Because of its extreme northern      in Alaska as opposed to No. 2 diesel fuel
exemptions under § 324 of the Act (‘‘Vapor               location, rugged terrain and sparse          which is marketed primarily in the
Recovery for Small Business Marketers of
Petroleum Products’’). While the proper reference is     population, Alaska relies on barges to       summer) and is commonly mixed with
to § 325, Congress clearly intended to refer to § 325,   deliver a large percentage of its            or used as a substitute for No. 1 diesel
as shown by the language used in § 211(i)(4), and        petroleum products. No other state           fuel. However, because Jet-A kerosene
the United States Code citation used in § 806 of the                                                  can have a sulfur content as high as
Clean Air Act Amendments of 1990, Public Law No.
                                                         relies on this type of delivery system to
101–549. Section 806 of the Amendments, which            the extent Alaska does.                      0.3%, the diesel fuel sulfur requirement
added paragraph (i) to § 211 of the Act, used 42           Only 35% of Alaska’s communities
U.S.C. 7625–1 as the United States Code                                                                 2 The cloud point defines the temperature at
                                                         are served by the Federal Aid Highway
designation for § 324. This is the proper designation                                                 which cloud or haze or wax crystals appears in the
for § 325 of the Act. Also see 136 Cong. Rec. S17236
                                                         System, which is a combination of road       oil. Its purpose is to ensure a minimum temperature
(daily ed. October 26, 1990) (statement of Sen.          and marine highways. The remaining           above which fuel lines and other engine parts are
Murkowski).                                              65% of Alaska’s communities are served       not plugged by solids that form in the fuel.
               Federal Register / Vol. 61, No. 161 / Monday, August 19, 1996 / Rules and Regulations                                    42815

of 0.05% would generally prohibit using                 increase in sulfate particulate emissions    costs that would be incurred to comply
Jet-A and No. 1 low sulfur diesel fuel                  would likely have an insignificant effect    with section 211(i)’s sulfur requirement
interchangeably.                                        on ambient PM levels in Alaska since         are excessive in light of the expected
   Ice formation on the navigable waters                current motor vehicle contributions to       benefits. Without an exemption from
during the winter months restricts fuel                 PM10 emissions are minimal. Also, the        having to meet this requirement, most
delivery to off-highway areas served by                 lower sulfur requirement for motor           refiners would choose to exit the market
barge lines. Therefore, fuel is generally               vehicle diesel fuel will have no impact      for highway diesel fuel.
only delivered to these areas between                   on the attainment prospects of                  Whether low-sulfur diesel fuel is
the months of May and October. This                     Fairbanks and Anchorage with respect         produced in Alaska or imported from
further restricts the ability of fuel                   to CO, since reducing sulfur content has     the lower 48 states or Canada, there
distributors in Alaska to supply                        no direct affect on CO emissions. Since      remains the problem of segregating the
multiple grades of petroleum products                   Alaska is in attainment with ozone and       two fuels for transport to communities
to these communities.                                   SO2 air quality standards, there is          accessible only by navigable waterways
   The only violations of national                      currently no concern for reducing HC or      and storage of the fuels thereafter. Fuel
ambient air quality standards in Alaska                 SO2 emissions.                               is delivered to these communities only
have been for carbon monoxide (CO)                         The Agency recognizes that granting       between the months of May and October
and particulate matter (PM10). CO                       this extension to the temporary              due to ice formation which blocks
violations have only been recorded in                   exemption means Alaska will forego the       waterways leading to these communities
the State’s two largest communities:                    potential benefits to its air quality        for much of the remainder of the year.
Anchorage and Fairbanks. PM10                           resulting from the use of low-sulfur         The fuel supplied to these communities
violations have only been recorded in                   diesel fuel. However, the Agency             during the summer months must last
two rural communities, Mendenhall                       believes that the potential benefits to      through the winter and spring months
Valley of Juneau and Eagle River, a                     Alaska’s air quality are minimal and far     until resupply can occur. Additionally,
community within the boundaries of                      outweighed by the increased costs            the existing fuel storage facilities limit
Anchorage. The most recent PM10                         resulting from factors unique to Alaska,     the number of fuel types that can be
inventories for these two communities                   at this time, to communities served by       stored for use in these communities.
show that these violations are largely                  the FAHS.                                    The cost of constructing separate storage
the result of fugitive dust from paved                                                               facilities and providing separate tanks
                                                        C. Economic Factors
and unpaved roads, and that motor                                                                    for transport of low-sulfur diesel fuel is
vehicle exhaust is responsible for less                   In complying with the section 211(i)       prohibitive. This is largely due to the
than one percent of the overall PM10                    sulfur requirement, refiners have the        high cost of construction in Alaska
                                                        option to invest in the process              relative to the lower 48, and the
being emitted within the borders of each
                                                        modifications necessary to produce low-      constraints inherent in distributing fuel
of these areas. 3 Moreover, Eagle River
                                                        sulfur diesel fuel for use in motor          in Alaska. One alternative to
has not had a violation of the PM10
                                                        vehicles, or not invest in the process       constructing separate storage facilities is
standard since 1986 and plans to apply
                                                        modifications and only supply diesel         to supply only low-sulfur diesel fuel to
to EPA for redesignation to attainment
                                                        fuel for off-highway purposes (e.g.,         these communities. However, the result
for PM10. Mendenhall Valley has
                                                        heating, generation of electricity, fuel     would require use of the higher cost,
initiated efforts for road paving to be
                                                        for non-road vehicles). Most of Alaska’s     low-sulfur diesel fuel for all diesel fuel
implemented to control road dust. The
                                                        refiners indicated that local refineries     needs. This would greatly increase the
sulfur content of diesel fuel is not
                                                        would choose to exit the market for          already high cost of living in these
expected to have a significant impact on                highway diesel fuel if an exemption
ambient PM10 or CO levels in any of                                                                  communities, since a large percentage of
                                                        from the low sulfur requirement is not       distillate consumption in these
these areas because of the minimal                      granted, because of limited refining
contribution by motor vehicles to PM10                                                               communities is for off-highway uses,
                                                        capabilities, the small size of the market   such as operating diesel powered
in these areas and the insignificant                    for highway diesel fuel in Alaska, and
effect of diesel fuel sulfur content on CO                                                           electrical generators.
                                                        the costs that would be incurred to
emissions.                                              produce low-sulfur diesel fuel.              D. Environmental Factors
   Finally, EPA recognizes that the                       Demand for Jet-A kerosene, which is          Information provided to EPA by the
primary purpose of reducing the sulfur                  also sold as No. 1 diesel fuel because it    State of Alaska indicates that refiners
content of diesel fuel is to reduce                     meets Alaska’s winter cloud point            supply and distribute standard diesel
vehicle particulate emissions.                          specification, accounts for almost fifty     fuel in the summer which has a sulfur
Additional benefits cited in the final                  percent (50%) of Alaska’s distillate         content of approximately 0.3% by
rule (55 FR 34120, August 21, 1990)                     consumption and dominates refiner            weight, and supply and distribute Jet-A
include a reduction in sulfur dioxide                   planning. A survey of the refiners in        fuel in the winter as an Arctic-grade
(SO2) emissions and the ability to use                  Alaska, conducted by the State, revealed     diesel, which has a sulfur content
exhaust after-treatment devices on                      that it would cost over $100,000,000 in      between 0.065 and 0.11. Thus, the
diesel fueled vehicles, which would                     construction and process modifications       reported level of sulfur in motor vehicle
result in some reduction of HC and CO                   to refine Alaska North Slope (ANS)           diesel fuel used in Alaska is below the
exhaust emissions. Despite the                          crude into 0.05% sulfur diesel fuel to       current ASTM sulfur specification
possibility that the use of high-sulfur                 meet the demand for highway diesel           which allows up to 0.5% (by weight).
diesel fuel may cause plugging or                       fuel. Among the reasons for the high         Therefore, in general, the impact of not
increased particulate sulfate emissions                 cost include the construction costs in       requiring the low sulfur diesel fuel
in diesel vehicles equipped with trap                   Alaska, which are 25% to 65% higher          program in Alaska are not as significant
systems or oxidation catalysts, any                     than costs in the lower 48 states, and the   as they would be if the fuel were to
  3 ‘‘PM
                                                        cost of modifying the fuel production        approach the ASTM allowable sulfur
         10 Emission Inventories for the Mendenhall
Valley and Eagle River Areas,’’ prepared for the U.S.
                                                        process itself. The petition states that     content level.
Environmental Protection Agency, Region X, by           because there is such a small demand           Although the State’s largest
Engineering-Science, February 1988.                     for highway diesel fuel in Alaska, the       communities, Fairbanks and Anchorage,
42816          Federal Register / Vol. 61, No. 161 / Monday, August 19, 1996 / Rules and Regulations

are CO nonattainment areas, extending                   demands in the state. As a result of          views the changes contained herein as
this exemption is not expected to have                  these conditions, during the term of this     non-controversial and based on
any significant impact on ambient CO                    exemption, it is not mandated that low-       outreach efforts with affected parties,
levels because the sulfur content in                    sulfur diesel fuel be available for           EPA anticipates no adverse or critical
diesel fuel does not significantly affect               commercial use in Alaska. The Agency          comments.
CO emissions. Two rural communities                     will make a final determination on the           Following the August 27, 1993
are designated nonattainment areas with                 state’s petition for a permanent              publication of EPA’s proposed decision
respect to particulate matter (PM10);                   exemption, as discussed below.                to grant the first exemption from the low
however, motor vehicle exhaust is                          The EPA believes that a 24-month           sulfur diesel fuel requirements
responsible for less than one percent of                continuation of the current exemption         requested by Alaska, there was a thirty
the overall PM10 being emitted within                   for areas served by the Federal Aid           day comment period, during which
the borders of these two areas where                    Highway System from the diesel fuel           interested parties could request a
fugitive dust is reported to be a problem.              sulfur content requirement is reasonable      hearing or submit comments on the
Thus, EPA believes that granting a 24-                  and appropriate so that the Agency can        proposal. The Agency received no
month extension to the current                          consider recent comments on the state’s       request for a hearing. Comments were
temporary exemption to communities                      petition. A permanent exemption is not        received both in support of the proposal
served by the FAHS will not have a                      appropriate at this time because EPA          to grant the exemption and expressing
significant impact on the ability of any                has not yet verified all relevant             concerns over the impact of granting the
of these communities to meet the                        information and comments submitted            exemption. These comments were
NAAQS.                                                  by other interested parties.                  considered in the Agency’s decision to
                                                           Alaska’s most recent petition              grant the previous exemption. The
V. Decision for Extending the Current                   included a compilation of information,        Agency received Alaska’s request for a
Temporary Exemption                                     provided by a Task Force (in which an         permanent exemption for the FAHS
   In this notice, the Agency is extending              EPA representative participated) that         areas in December of 1995. Since that
the temporary exemption for those areas                 was established after the first petition,     time, the Agency has received comment
in Alaska served by FAHS from the                       to further evaluate the conditions as         on the petition from the Alaska Center
diesel fuel sulfur content requirement of               described in that petition. These             for the Environment and the Engine
0.05% (by weight), for a period of 24                   conditions included: the availability of      Manufacturers of America. Although the
months from October 1, 1996, or until                   arctic-grade, low-sulfur diesel fuel from     Agency believes that the petition does
such time as a decision is made on the                  out-of-state refiners, the costs associated   support an extension of the current
petition for a permanent exemption,                     with importing the fuel, and the costs of     exemption, EPA believes the
whichever is shorter. For the same                      storing and distributing the fuel to areas    information in these comments and the
reasons, the Agency also extends the                    on the highway system. The conditions         possible tightening of heavy duty engine
exemption for those areas in Alaska                     and factors that were identified in the       standards in 2004 necessitate further
covered by the FAHS from those                          initial petition were expanded upon in        consideration before the Agency
provisions of section 211(g)(2) 4 of the                the task force review. At this time there     proposes a decision on Alaska’s request
Act that prohibit the fueling of motor                  is sufficient evidence to support             for a permanent waiver.
vehicles with high-sulfur diesel fuel.                  granting an extension to the current             This action will become effective
Sections 211(g) and 211(i) both restrict                exemption, however, the Agency                October 3, 1996 unless the Agency
the use of high-sulfur motor vehicle                    believes there are several issues that        receives adverse comments or a request
diesel fuel. Therefore, areas in Alaska                 merit further investigation prior to          for a public hearing by September 18,
                                                        making a final decision to act on the         1996. If EPA receives such comments or
served by the Federal Aid Highway
                                                        state’s request for a permanent               request for a public hearing, EPA will
System are also exempt from the related
                                                        exemption. These issues include:              publish a timely notice in the Federal
211(g)(2) provisions until such time as
                                                        consideration of an alternative fuel          Register withdrawing this rule. In the
a decision has been made on the state’s
                                                        standard or fuel, local environmental         event that adverse or critical comments
petition for a permanent exemption.
                                                        effects, manufacturer’s emissions             are received, EPA is also publishing a
   The basis for this decision is that
                                                        warranty and recall liability, and the        Notice of Proposed Decision in a
compliance with this requirement is
                                                        potential for tightening future heavy-        separate action today, which proposes
unreasonable during such time period
                                                        duty emission standards for model year        the same exemption contained in this
because, at this time, it would continue
                                                        2004 engines.                                 direct final decision. Any adverse
to create a severe economic burden for
                                                           The information which is summarized        comments received by the date listed
refiners, distributors and consumers of
                                                        in this notice and other pertinent            above will be addressed in a subsequent
diesel fuel in the State of Alaska. This
                                                        information is being investigated in          final decision. That final decision will
economic burden is created by unique
                                                        more detail by the Agency, prior to           be based on the relevant portion of the
meteorological conditions in Alaska and
                                                        issuing a decision on the States request      revision that is noticed as a proposed
a set of unique distillate product
                                                        for a permanent exemption.                    decision in the Federal Register and
   4 This subsection makes it unlawful for any             The Agency will publish a separate         that is identical to this direct final
person to introduce or cause or allow the               notice in the Federal Register to take        decision. The EPA will not institute a
introduction into any motor vehicle of diesel fuel      action on the state’s petition for a          second comment period on this action.
which they know or should know contains a               permanent exemption.                          Any parties interested in commenting
concentration of sulfur in excess of 0.05 percent (by
                                                                                                      on this action should do so at this time.
weight). It would clearly be impossible to hold         VI. Public Participation
persons liable for misfueling with diesel fuel with                                                   If no such comments are received, the
a sulfur content higher than 0.05%, when such fuel         The Agency is publishing this action       public is advised that this action will be
is permitted to be sold or dispensed for use in         as a direct final rule because this action    effective October 3, 1996.
motor vehicles. The proposed exemptions would           is only extending Alaska’s current
include exemptions from this prohibition, but not
                                                        temporary exemption from the diesel           VII. Statutory Authority
include the prohibitions in § 211(g)(2) relating to
the minimum cetane index or alternative aromatic        fuel sulfur standards as established in         Authority for the action in this
levels.                                                 section 211(i) of the Act. The Agency         document is in sections 211(i)(4) (42
                 Federal Register / Vol. 61, No. 161 / Monday, August 19, 1996 / Rules and Regulations                          42817

U.S.C. 7545(i)(4)) and 325(a)(1) (42          any new requirements on regulated              List of Subjects in 40 CFR Part 80
U.S.C. 7625–1(a)(1)) of the Clean Air         entities, but instead is continuing an           Environmental protection, Air
Act, as amended.                              exemption from a requirement which             pollution control, Diesel fuel, Motor
VIII. Administrative Designation and          makes it less restrictive.                     vehicle pollution.
Regulatory Analysis                             Therefore, the Administrator has               Dated: August 12, 1996.
   Under Executive Order 12866,5 the          determined that this direct final              Carol M. Browner,
Agency must determine whether a               decision will not have a significant           Administrator.
regulation is ‘‘significant’’ and therefore   impact on a substantial number of small        [FR Doc. 96–21078 Filed 8–16–96; 8:45 am]
subject to OMB review and the                 entities, and that a regulatory flexibility
                                                                                             BILLING CODE 6560–50–P
requirements of the Executive Order.          analysis is not necessary in connection
The Order defines ‘‘significant               with this decision.
regulatory action’’ as one that is likely     X. Paperwork Reduction Act                     DEPARTMENT OF HEALTH AND
to result in a rule that may:                                                                HUMAN SERVICES
   (1) Have an annual effect on the             The Paperwork Reduction Act of
economy of $100 million or more, or           1980, 544 U.S.C. 3501 et seq., and             Administration for Children and
adversely affect in a material way the        implementing regulations, 5 CFR Part           Families
economy, a sector of the economy,             1320, do not apply to this action as it
productivity, competition, jobs, the          does not involve the collection of             45 CFR Part 1336
environment, public health or safety, or      information as defined therein.                RIN 0970–AB37
State, local or tribal governments of
communities;                                  XI. Submission to Congress and the             Native American Programs
   (2) Create a serious inconsistency or      General Accounting Office
otherwise interfere with an action taken                                                     AGENCY:  Administration for Native
or planned by another agency;                   Under section 801(a)(1)(A) of the            Americans, Administration for Children
   (3) Materially alter the budgetary         Administrative Procedures Act (APA),           and Families, HHS.
impact of entitlements, grants, user fees,    as amended by the Small Business               ACTION: Final rule.
or loan programs or the rights and            Regulatory Enforcement Fairness Act of
obligations of recipients thereof, or         1996, EPA submitted a report containing        SUMMARY:    On September 30, 1992, the
   (4) Raise novel legal or policy issues     this rule and other required information       Congress passed the Older Americans
arising out of legal mandates, the            to the U.S. Senate, the U.S. House of          Act Amendments of 1992 (Pub. L. 102–
President’s priorities, or the principles     Representatives and the Comptroller            375), amending the Native American
set forth in this Executive Order.6           General of the General Accounting              Programs Act of 1974. In accordance
   It has been determined that this rule      Office prior to publication of the rule in     with these amendments, the
is not a ‘‘significant regulatory action’’    today’s Federal Register. This rule is         Administration for Native Americans
under the terms of Executive Order            not a ‘‘major rule’’ as defined by section     (ANA) is amending 45 CFR Part 1336 to
12866 and is therefore not subject to         804(2) of the APA as amended.                  incorporate an appeals procedure for
OMB review.                                                                                  ANA ineligible applications. This action
                                              XII. Unfunded Mandates Act                     affords the applicants in ANA grant
IX. Compliance With the Regulatory
                                                                                             program announcement areas the
Flexibility Act                                  Under section 202 of the Unfunded           opportunity to appeal the rejection of an
  The Regulatory Flexibility Act, 5           Mandates Reform Act of 1995, EPA               application based on a finding that
U.S.C. 601–612, requires that Federal         must prepare a budgetary impact                either the applicant or the proposed
Agencies examine the impacts of their         statement to accompany any proposed            activities are ineligible for funding. A
regulations on small entities. The act        or final rule that includes a federal          successful appeal would lead to
requires an Agency to prepare a               mandate with estimated costs to the            reconsideration of the application in the
regulatory flexibility analysis in            private sector of $100 million or more,        next cycle of grant proposals following
conjunction with notice and comment           or to state, local, or tribal governments      the HHS Departmental Appeals Board’s
rulemaking, unless the Agency head            of $100 million or more in the aggregate.      determination to uphold the appeal. It
certifies that the rule will not have a       Under section 205, EPA must select the         does not guarantee ANA approval for
significant impact on a substantial           most cost-effective and least                  grant funding.
number of small entities. 5 U.S.C.            burdensome alternative that achieves           EFFECTIVE DATE: September 18, 1996.
605(b).                                       the objectives of the rule and is              FOR FURTHER INFORMATION CONTACT: R.
  Today’s action to extend the                consistent with statutory requirements.
temporary exemption of the low sulfur                                                        Denise Rodriguez (202) 690–6265,
                                              Section 203 requires EPA to establish a        Department of Health and Human
diesel fuel requirements in the State of      plan for informing and advising any
Alaska until October 1, 1998, or until                                                       Services, Administration for Children
                                              small governments that may be                  and Families, 200 Independence
such time as the Agency proposes to act       significantly or uniquely impacted by
on the states request for a permanent                                                        Avenue SW., Room 348–F, Washington,
                                              the rule.                                      DC 20201–0001.
exemption, whichever period of time is
shorter, will not result in any additional       EPA has determined that this direct         SUPPLEMENTARY INFORMATION:
economic burden on any of the affected        final rule imposes no new federal
                                              requirements and does not include any          I. Program Description
parties, including small entities
involved in the oil industry, the             federal mandate with costs to the                In 1974, the Native American
automotive industry and the automotive        private sector or to state, local, or tribal   Programs Act (the Act) was enacted as
service industry. EPA is not imposing         governments. Therefore, the                    Title VIII of the Economic Opportunity
                                              Administrator certifies that this direct       Act of 1964, (Pub. L. 93–644) (42 U.S.C.
 5 58    FR 51736 (October 4, 1993)           final rule does not require a budgetary        2991a et seq.) to promote the goal of
 6 Id.   at section 3(f)(1)–(4).              impact statement.                              social and economic self-sufficiency for
42818       Federal Register / Vol. 61, No. 161 / Monday, August 19, 1996 / Rules and Regulations

American Indians, Alaska Natives, and        the body that is delegated the authority     governing bodies to regulate
Native Hawaiians. The legislation was        to review appeals instead of the             environmental quality. We added these
subsequently amended by the Older            Assistant Secretary for Children and         categories in recognition of the
Americans Act Amendments of 1987             Families as set forth in the NPRM. On        possibility that such organizations
(Pub. L. 100–175), which extended            reconsideration of the NPRM, we              performed similar functions to the
eligibility to Native American Pacific       determined that it would be logical for      organizations listed in the NPRM.
Islanders (including American Samoan         the DAB to hear ANA grants eligibility         The final rule establishes new
Natives), and the Indian Environmental       determination appeals, since the DAB         procedures mandated by reauthorization
Regulatory Enhancement Act of 1990           already handles appeals regarding            legislation, the Older Americans Act
(Pub. L. 101–408) and the Indian             various grant programs administered by       Amendments of 1992 (Pub. L. 102–375,
Reorganization Act Amendments (Pub.          the Department, including appeals of         Title VIII, Subtitle C; ‘‘Native American
L. 100–581). Most recently it was            terminations, suspensions and denials        Programs Act Amendments of 1992’’).
amended by the Older Americans Act           of refunding under ANA grant programs        The rule adds three new sections to 45
Amendments of 1992 (Pub. L. 102–375);        pursuant to 45 CFR 1336.52(c)(2).            CFR Part 1336, Subpart C that lists the
the Native American Languages Act of         Accordingly, the Assistant Secretary has     categories of eligible applicants and
1992 (Pub. L. 102–524); Technical            delegated the appeals process to the         activities that are ineligible, § 1336.33,
Amendments to Certain Indian Statutes,       DAB. The Assistant Secretary’s               requirements for the notice of
1992 (Pub. L. 102–497); and the Older        delegation to the DAB strengthens the        ineligibility, § 1336.34, and the
Americans Act Technical Amendments           appeals process and affords                  procedures for appeal of such a
of 1993 (Pub. L. 103–171).                   administrative convenience, beneficial       determination, § 1336.35. Appeals will
                                             to all parties concerned. For purposes of    be governed by the Departmental
Background                                                                                Appeals Board regulations at 45 CFR
                                             clarification, we have revised our
   Financial assistance provided by          descriptions of eligible applicants as       Part 16, except as otherwise provided in
ANA, under the Act, is designed to           described below.                             these regulations.
promote the goal of social and economic                                                     A successful appeal under § 1336.35
self-sufficiency for American Indians,          Tribally Controlled Community             would lead to reconsideration of the
Alaska Natives, Native Hawaiians, and        Colleges, Tribally Controlled Post-          application in the next cycle of grant
Native American Pacific Islanders            Secondary Vocational Institutions, and       proposals. It does not guarantee ANA
through programs and projects that: (1)      colleges and universities located in         approval for grant funding.
Advance locally developed social and         Hawaii, Guam, American Samoa, Palau,         Furthermore, the decision that an
economic development strategies              or the Commonwealth of the Northern          application is deficient by ANA prior to
(SEDS) and strengthen local governance       Mariana Islands which serve Native           competitive panel review for reasons
capabilities as authorized by § 803(a);      American Pacific Islanders were added        other than applicant ineligibility or the
(2) preserve Native American languages       under 45 CFR 1336.33(a)(1) to the list of    ineligibility of proposed activities is not
authorized by § 803C; (3) improve the        organizations eligible for funding under     appealable under this section and in
capability of the governing body of the      the Social and Economic Development          accordance with § 810(b) of the Act. The
Indian tribe to regulate environmental       Strategies (SEDS) and Preservation and       decision not to fund an application
quality authorized by § 803(d); and (4)      Enhancement of Native American               because it fails the competitive review
mitigate the environmental impacts to        Languages programs. This new category        panel also is not appealable under this
Indian lands due to Department of            of organizations was added to make it        section.
Defense activities. The funding for the      clear that such organizations are eligible
mitigation of environmental impacts to       to apply for funding under these             Section by Section Discussion of the
Indian lands due to Department of            programs. These organizations would          Final Rule
Defense activities is authorized by          have qualified under the proposed               In Subpart C, Part 1336, Native
§ 8094A of the Department of Defense         categories, but the addition of this         American Projects, we are including a
Appropriations Act, 1994 (Pub. L. 103–       category will clearly establish the          new § 1336.33, ‘‘Eligible applicants and
139), and § 8094A, the Department of         eligibility of such organizations. The       proposed activities which are
Defense Appropriations Act, 1995 (Pub.       final regulations include a separate         ineligible’’. This section lists the
L. 103–335). The Act also authorizes a       listing at § 1336.33(a)(2) of eligible       categories of organizations which are
Hawaiian Loan Program in § 803A.             organizations for the Alaska-Specific        eligible for four of the grant programs
Under this program, ANA makes grants         Social and Economic Development              administered by ANA. An organization
to the Office of Hawaiian Affairs of the     Strategies (SEDS) Projects. These            not within the categories specified for a
State of Hawaii to support a revolving       organizations were listed under the          program is not eligible to receive
loan fund. Because of the unique nature      eligible organizations for the SEDS          funding under that program.
of this program, an appeal is unlikely to    program. The separate listings are              The provision also lists activities
arise under it, and for this reason ANA      necessary because Alaskan                    which, based upon its experience in
has not addressed the question of            organizations can elect to apply under       administering the program, ANA has
eligibility of organizations or activities   either the SEDS competition or the           declined to fund in the past. The
under this program in the regulations.       Alaska-Specific Social and Economic          Agency has found that these activities
                                             Development Strategies Project. In the       are by their nature of limited or no value
II. Discussion of Final Rule                 final rule, § 1336.33(a)(4), which was       in furthering the goals of the respective
   A Notice of Proposed Rulemaking           (a)(3) in the NPRM, we have added            grant programs administered by ANA.
(NPRM) was published in the Federal          Nonprofit Alaska Native Regional                Paragraph (a)(1) lists categories of
Register on April 21, 1995 (60 FR            Corporations/Associations with village-      applicants eligible to apply for SEDS
19994). No comments were received.           specific projects and other tribal or        and Preservation and Enhancement of
However, we have made changes to the         village organizations or consortia of        Native American Language grants. The
final rule for the benefit of all parties    Indian tribes to the list of eligible        categories are in accordance with
concerned. We now identify the               organizations for the program on the         Section 803(a) of the Native American
Departmental Appeals Board (DAB) as          improvement of the capability of tribal      Programs Act, as amended, and Section
           Federal Register / Vol. 61, No. 161 / Monday, August 19, 1996 / Rules and Regulations                                42819

803C, which provides that organizations      consistent with the NPRM which made           incorporated non-Federally recognized
eligible under Section 803(a) are also       it clear from the proposed list of eligible   Indian Tribes; (3) consortia of Indian
eligible for grants under the Native         organizations that in order to be eligible    Tribes; (4) Alaska Native villages as
American languages program. The              an organization had to be in some way         defined by the Alaska Native Claims
following are some examples of the           representative of a Native American           Settlement Act (ANCSA) and/or
eligible organizations listed in             community. The requirement for an             nonprofit village consortia; (5) Tribal
paragraph (a)(1): Federally recognized       assurance of the representativeness of        governing bodies (Indian Reorganization
Indian Tribes; urban Indian Centers;         the organizations’s board is only an          Act (IRA) or traditional councils) as
consortia of Indian Tribes; Alaska           elaboration of the existing requirement.      recognized by the Bureau of Indian
Native villages as defined by the Alaska        The requirements of paragraph (a)(1)       Affairs. The list of 5 categories is
Native Claims Settlement Act (ANCSA)         set forth ANA’s interpretation of the         derived from the program
and/or nonprofit village consortia;          eligibility requirements of § 803(a) of the   announcement: Availability of Financial
public and nonprofit private agencies        Act. The Agency has removed 45 CFR            Assistance for Improving the Capability
serving native peoples from Guam,            1336.30(a) which restated the language        of Indian Tribal Governments to
American Samoa, Palau, or the                of the statute. Continued use of that         Regulate Environmental Quality (59 FR
Commonwealth of the Northern Mariana         provision in the regulations would have       16650, April 7, 1994).
Islands; public and nonprofit private        caused confusion. In addition, ANA has           The provisions being added to the
agencies serving Native Hawaiians; and       removed 45 CFR 1336.30(c) which               regulations do not include a list of
incorporated non-Federally recognized        provided that projects in American            organizations eligible for grants
Tribes.                                      Samoa, Guam and the Northern Mariana          authorized by § 805 of the Act, which
   Applications from tribal components       Islands received funding under § 803          authorizes grants for research,
which are tribally-authorized divisions      ‘‘subject to the availability of funds.’’     demonstration and pilot projects.
of a larger tribe must be approved by the    This provision was based upon a               Eligibility under § 805 is addressed in
governing body of the Tribe. This            requirement in § 803(a) which was             part under the revised 45 CFR 1336.30.
interpretation of the requirements of the    deleted in 1992 by Pub. L. 102–497. In        ANA is not currently awarding grants
Act reflects the legal principle that        accordance with these removals, the           under this provision, nor does it have
Indian Tribes possess inherent               heading of § 1336.30 has been changed         plans to do so. If, at some point in the
governmental power over all internal         to ‘‘Eligibility under sections 804 and       future, it does issue an announcement
affairs. See for example, Merrion v.         805 of the Native American Programs           for funding under § 805, the Agency will
Jicarilla Apache Tribe, 455 U.S. 130         Act of 1974’’.                                provide additional guidance on
(1982) (Tribe has inherent power to             Paragraph (a)(2) lists 5 categories of     eligibility under that provision.
impose severance tax on mining               applicants eligible to apply for funds        Applicants for funding under § 805 who
activities). Attributes of sovereign         under the Alaska-Specific Social and          wish to appeal the rejection of an
authority of tribes extends over both        Economic Development Strategies               application based on a finding that
their members and territory, except          Project. As explained earlier, this           either the applicant or the proposed
where that authority has been                separate listing contains organizations       activities are ineligible for funding will
withdrawn or modified by treaty or           that were in the NPRM but separate            be able to do so by submitting an appeal
Federal statute. Iowa Mutual Insurance       listings are necessary because Alaskan        as provided for by 45 CFR 1336.35.
Co. v. LaPlante, 480 U.S. 9, 14 (1987).      organizations can elect to apply under           Paragraph (b) provides a nonexclusive
Tribes generally retain sovereignty by       either the SEDS competition or the            list of activities that are ineligible for
way of tribal self-government and            Alaska-Specific Social and Economic           funding under programs authorized by
control over other aspects of its internal   Development Strategies Project.               the Native American Programs Act of
affairs. Brendale v. Confederated Tribes        Paragraph (a)(3), which was (a)(2) in
                                                                                           1974. (It is impossible to list all
and Band of Yakima, 109 S. Ct. 2994          the NPRM, lists 5 categories of
                                                                                           activities that would be considered
(1989). When the eligibility                 applicants eligible to apply for funds
                                                                                           eligible.) With the exception of one
requirements of § 803(a) are applied to      provided by the Department of Defense
                                                                                           activity, the purchase of real estate,
such organizations it is appropriate to      (DoD) and ANA for the purpose of
                                                                                           which is prohibited by law, the
interpret the requirements in light of the   mitigating environmental impacts on
                                                                                           remaining activities listed are derived
principle that tribes have an inherent       Indian Lands related to DoD activities.
                                                                                           from ANA’s past experiences in
authority over their internal affairs and    This list was derived from the
                                                                                           managing grants and working with
over their members. To do otherwise          Environmental Mitigation Program
                                             Announcement as published in the              organizations, both public and private.
would undermine the ability of tribes to                                                   Several examples of these are:
exercise that authority. It is also          Federal Register: Availability of
particularly important in such               Financial Assistance; (58 FR 69106;             (a) Projects in which a grantee would
circumstances to have the support of the     December 29, 1993). ANA does not              provide training and/or technical assistance
                                                                                           (T/TA) to other tribes or Native American
tribal government since the grant is         interpret Section 810(b) of the Act as
                                                                                           organizations (‘‘third party T/TA’’). However,
intended to further the social and           requiring that applicants under the DoD       the purchase of T/TA by a grantee for its own
economic development of the tribe and        program have a right to appeal rulings        use or for its members’ use (as in the case of
its members.                                 of ineligibility; however the ANA has         a consortium), where T/TA is necessary to
   ANA also has included in the final        decided as a matter of policy to include      carry out project objectives, is acceptable.
rule a requirement for its programs that     this program under the regulations.           Third party T/TA is not an eligible activity
‘‘[a]pplicants, other than tribes or            Paragraph (a)(4), which was (a)(3) in      because ANA believes it is inefficient to fund
Alaska Native Village governments,           the NPRM, lists 5 categories of               organizations which would otherwise be able
proposing a project benefiting Native        applicants eligible to apply for funds for    to apply directly to ANA for T/TA funding;
                                                                                             (b) Projects that request funds for
Americans or Native Alaskans, or both,       the improvement of the capability of          feasibility studies, business plans, marketing
must provide assurance that its duly         tribal governing bodies to regulate           plans or written materials, such as manuals,
elected or appointed board of directors      environmental quality. The eligible           that are not an essential part of the
is representative of the community to be     categories of organizations are: (1)          applicant’s SEDS long-range development
served.’’ We believe this requirement is     Federally recognized Indian Tribes; (2)       plan. ANA is not interested in funding ‘‘wish
42820        Federal Register / Vol. 61, No. 161 / Monday, August 19, 1996 / Rules and Regulations

lists’’ of business possibilities. This policy    appeal must clearly identify the issues.     organizations, based on past experience
reflects ANA’s belief that the limited amount     Under this section, the Commissioner         with respect to other appeals under
of funds available to the Agency is better        shall have 45 days to respond to the         ANA, we expect the impact to be
used to support activities which directly
                                                  applicant’s submission and the               minimal. For this reason, the Assistant
affect the well-being of the members of
Native American communities;                      applicant 20 days to respond to the          Secretary certifies that these rules will
   (c) The support of on-going social service     Commissioner’s submission to DAB.            not have a significant impact on a
delivery programs or the expansion, or            The individual presiding over the            substantial number of small entities.
continuation, of existing social service          appeal may request the parties to submit     Paperwork Reduction Act
delivery programs. This area is covered by        additional information within a
other Federal programs and would result in        specified time period before closing the       Under the Paperwork Reduction Act
a duplicative effort by ANA; and                                                               of 1995, Pub. L. 104–13, all Departments
                                                  record in the appeal. The DAB will
   (d) Core administration functions, or other                                                 are required to submit to the Office of
activities, that essentially support only the     provide a final written decision within
                                                  30 days of the closing of the record,        Management and Budget (OMB) for
applicant’s on-going administrative
functions. ANA funds are used for specific        unless the Board determines for good         review and approval any reporting or
projects that become self-sustaining and not      reason that a decision cannot be issued      recordkeeping requirement contained in
for the on-going administration of tribes or      within the time period and so notifies       a proposed or final rule. This final rule
organizations. (However, in Alaska-Specific       the parties. If a determination is made      does not contain any reporting or
SEDS Projects, ANA will consider funding          by the DAB that the applicant or             recordkeeping requirements, thus, no
core administrative capacity building                                                          submission to OMB is required.
projects at the village government level if the   application is eligible, as required by
village does not have governing systems in        law, the eligibility will not take effect    List of Subjects in 45 CFR Part 1336
place.) This exception has been added             until the next cycle of grant proposals
                                                                                                 Administrative practice and
because grantees for Alaska-Specific SEDS         are considered by ANA.
Projects at the village government level are                                                   procedure, American Samoa, Appeals
frequently village governments or                 III. Impact Analysis                         Grant programs—Indians, Grant
organizations performing governmental                                                          programs—social programs, Guam,
                                                  Executive Order 12866
functions on behalf of village governments.                                                    Indians, Native Hawaiians, Northern
In many instances, such funding is necessary        Executive Order 12866 requires that        Mariana Islands, Reporting and
to ensure that villages develop the minimum       regulations be drafted to ensure that        recordkeeping requirements.
governmental services necessary to support        they are consistent with the priorities
social and economic development.                                                               (Catalog of Federal Domestic Assistance
                                                  and principles set forth in the Executive    Program Number 93.612 Native American
   In section 1336.34, Notice of                  Order. The Department has determined         Programs)
ineligibility, we require that upon a             that this rule is consistent with these        Approved: July 23, 1996.
finding by the Commissioner that an               priorities and principles.                   Mary Jo Bane,
organization which has applied for                  The final rule amends the current
                                                                                               Assistant Secretary for Children and Families.
funding is ineligible or that the                 rules to establish an appeal procedure
activities proposed by an organization            authorized by the Older Americans Act          For the reasons set forth in the
are ineligible, the Commissioner shall            Amendments of 1992. It adds three new        preamble, 45 CFR Part 1336 is amended
inform the applicant, by certified letter,        sections to 45 CFR Part 1336 that list the   as follows:
of the decision. The notice must include          categories of eligible applicants and        SUBCHAPTER D—THE ADMINISTRATION
a statement of the legal and factual              ineligible activities, set forth             FOR NATIVE AMERICANS, NATIVE
grounds for the finding concerning                requirements for the notice of               AMERICAN PROGRAMS
eligibility, a copy of these regulations,         ineligibility, and establish procedures
and the statement regarding how to                on how to appeal determinations of           PART 1336—NATIVE AMERICAN
appeal the decision.                              ineligibility made by the Commissioner,      PROGRAMS
   In section 1336.35, ‘‘Appeal of                ANA. The final rule also deletes existing      1. The authority citation for Part 1336
ineligibility’’, we are establishing the          provisions from the regulations that are     continues to read as follows:
procedures an applicant must follow               no longer applicable or are rendered
when seeking to appeal the ANA                                                                     Authority: 42 U.S.C. 2991 et seq.
                                                  obsolete by this final rule. We estimate
Commissioner’s determination that an              that these regulations will not result in      2. Section 1336.30 is amended by
applicant, or proposed activities, are            significant additional costs to the          removing paragraphs (a) and (c),
rejected on grounds of ineligibility. This        Federal government or Native American        removing the designation (b) from the
section describes the steps that apply            programs.                                    remaining paragraph, and revising the
when seeking such an appeal. In                                                                section heading to read as follows:
accordance with the Native Americans              Regulatory Flexibility Act of 1995
                                                                                               § 1336.30 Eligibility under sections 804
Programs Act, Section 810(b), the                    Consistent with the Regulatory            and 805 of the Native American Programs
applicant may make an appeal to the               Flexibility Act [5 U.S.C. Ch. 6], we try     Act of 1974.
Secretary for review of the                       to anticipate and reduce the impact of
                                                                                               *     *     *   *    *
determination of ineligibility. The               rules and paperwork requirements on            3. Three new sections, §§ 1336.33,
Secretary has delegated this authority to         small businesses. For each rule with a       1336.34 and 1336.35, are added to read
the Assistant Secretary. The Assistant            ‘‘significant economic impact on a           as follows:
Secretary has delegated to the DAB the            substantial number of small entities,’’
review of appeals made under section              we prepare an analysis describing the        § 1336.33 Eligible applicants and proposed
810(b). Except as otherwise provided in           rule’s impact on small entities. Small       activities which are ineligible.
these regulations, Appeals will be                entities are defined by the Act to              (a) Eligibility for the listed programs
governed by the DAB regulations at 45             include small businesses, small non-         is restricted to the following specified
CFR Part 16. Under this section, the              profit organizations and small               categories of organizations. In addition,
applicant has 30 days following receipt           governmental entities. While this rule       applications from tribal components
of ineligibility notification to appeal, in       affects small entities, i.e., Alaskan        which are tribally-authorized divisions
writing, the Commissioner’s ruling. The           Native villages and non-profit               of a larger tribe must be approved by the
            Federal Register / Vol. 61, No. 161 / Monday, August 19, 1996 / Rules and Regulations                                  42821

governing body of the Tribe. If the               (ii) Alaska Native villages as defined    carry out project objectives, is
applicant, other than a tribe or an            in the Alaska Native Claims Settlement       acceptable;
Alaska Native Village government, is           Act (ANCSA) and/or nonprofit village            (2) Projects that request funds for
proposing a project benefiting Native          consortia;                                   feasibility studies, business plans,
Americans or Native Alaskans, or both,            (iii) Incorporated nonprofit Alaska       marketing plans or written materials,
it must provide assurance that its duly        Native multi-purpose community-based         such as manuals, that are not an
elected or appointed board of directors        organizations;                               essential part of the applicant’s SEDS
is representative of the community to be          (iv) Nonprofit Alaska Native Regional     long-range development plan;
served.                                        Corporations/Associations in Alaska             (3) The support of on-going social
   (1) Social and Economic Development         with village specific projects; and          service delivery programs or the
Strategies (SEDS) and Preservation and            (v) Nonprofit Native organizations in     expansion, or continuation, of existing
Enhancement of Native American                 Alaska with village specific projects.       social service delivery programs;
Languages:                                        (3) Mitigation of Environmental              (4) Core administration functions, or
   (i) Federally recognized Indian Tribes;     Impacts to Indian Lands Due to               other activities, that essentially support
   (ii) Consortia of Indian Tribes;            Department of Defense Activities:            only the applicant’s on-going
   (iii) Incorporated non-Federally               (i) Federally recognized Indian Tribes;   administrative functions; however, for
recognized Tribes;                                (ii) Incorporated non-Federally and       Competitive Area 2, Alaska-Specific
   (iv) Incorporated nonprofit multi-          State recognized Tribes;                     SEDS Projects, ANA will consider
purpose community-based Indian                    (iii) Nonprofit Alaska Native             funding core administrative capacity
organizations;                                 community entities or tribal governing       building projects at the village
   (v) Urban Indian Centers;                   bodies (Indian Reorganization Act (IRA)      government level if the village does not
   (vi) National and regional                  or traditional councils) as recognized by    have governing systems in place;
incorporated nonprofit Native American         the Bureau of Indian Affairs.                   (5) The conduct of activities which
organizations with Native American                (iv) Nonprofit Alaska Native Regional     are not responsive to one or more of the
community-specific objectives;                 Associations and/or Corporations with        three interrelated ANA goals
   (vii) Alaska Native villages as defined     village specific projects; and               (Governance Development, Economic
in the Alaska Native Claims Settlement            (v) Other tribal or village               Development, and Social Development);
Act (ANSCA) and/or nonprofit village           organizations or consortia of Indian            (6) Proposals from consortia of tribes
consortia;                                     Tribes. (Statutory authority: § 8094A of     that are not specific with regard to
   (viii) Incorporated nonprofit Alaska        the Department of Defense                    support from, and roles of member
Native multi-purpose community-based           Appropriations Act, 1994 (Public Law         tribes. An application from a
organizations;                                 103–139), § 8094A of the Native              consortium must have goals and
   (ix) Nonprofit Alaska Native Regional       Americans Programs Act of 1974, as           objectives that will create positive
Corporations/Associations in Alaska            amended, 42 U.S.C. 2991h(b)).                impacts and outcomes in the
with village specific projects;                   (4) Improvement of the capability of      communities of its members. ANA will
   (x) Nonprofit Native organizations in       tribal governing bodies to regulate          not fund activities by a consortium of
Alaska with village specific projects;         environmental quality:                       tribes which duplicates activities for
   (xi) Public and nonprofit private              (i) Federally recognized Indian Tribes;   which member tribes also receive
agencies serving Native Hawaiians;                (ii) Incorporated non-Federally and       funding from ANA; and
   (xii) Public and nonprofit private          State recognized Indian tribes;                 (7) The purchase of real estate.
agencies serving native peoples from              (iii) Alaska Native villages as defined   (Statutory authority: Sections 803B of
Guam, American Samoa, Palau, or the            in the Alaska Native Claims Settlement       the Native American Programs Act of
Commonwealth of the Northern Mariana           Act (ANSCA) and/or nonprofit village         1974, as amended, 42 U.S.C. 2991b–2)
Islands. (The populations served may be        consortia;
                                                  (iv) Nonprofit Alaska Native Regional     § 1336.34   Notice of ineligibility.
located on these islands or in the United
                                               Corporations/Associations with village-         (a) Upon a finding by the
States);
                                               specific projects;                           Commissioner that an organization
   (xiii) Tribally Controlled Community
                                                  (v) Other tribal or village               which has applied for funding is
Colleges Tribally Controlled Post-
                                               organizations or consortia of Indian         ineligible or that the activities proposed
Secondary Vocational Institutions, and
                                               tribes: and                                  by an organization are ineligible, the
colleges and universities located in
                                                  (vi) Tribal governing bodies (IRA or      Commissioner shall inform the
Hawaii, Guam, American Samoa, Palau,
                                               traditional councils) as recognized by       applicant by certified letter of the
or the Commonwealth of the Northern
                                               the Bureau of Indian Affairs. (Statutory     decision.
Mariana Islands which serve Native
                                               authority: Sections 803(d) of the Native        (b) The letter must include the
American Pacific Islanders; and
                                               Americans Programs Act of 1974, as           following:
   (xiv) Nonprofit Alaska Native
                                               amended 42 U.S.C. 2991b(d).)                    (1) The legal and factual grounds for
community entities or tribal governing            (b) The following is a nonexclusive       the Commissioner’s finding concerning
bodies (Indian Reorganization Act or           list of activities that are ineligible for   eligibility;
traditional councils) as recognized by         funding under programs authorized by            (2) A copy of the regulations in this
the Bureau of Indian Affairs.                  the Native American Programs Act of          part; and
(Statutory authority: Sections 803(a) and      1974:                                           (3) The following statement: This is
803C of the Native American Programs Act          (1) Projects in which a grantee would     the final decision of the Commissioner,
of 1974, as amended, 42 U.S.C. 2991 b(a) and   provide training and/or technical            Administration for Native Americans. It
42 U.S.C. 2991b–3)                             assistance (T/TA) to other tribes or         shall be the final decision of the
  (2) Alaska-Specific Social and               Native American organizations (‘‘third       Department unless, within 30 days after
Economic Development Strategies                party T/TA’’). However, the purchase of      receiving this decision as provided in
(SEDS) Projects:                               T/TA by a grantee for its own use or for     § 810(b) of the Native Americans
  (i) Federally recognized Indian Tribes       its members’ use (as in the case of a        Programs Act of 1974, as amended, and
in Alaska;                                     consortium), where T/TA is necessary to      45 CFR part 1336, you deliver or mail
42822        Federal Register / Vol. 61, No. 161 / Monday, August 19, 1996 / Rules and Regulations

(you should use registered or certified     issued within this time period and so          this rule pending consideration of
mail to establish the date) a written       notifies the parties.                          legislation to amend the Act; and two
notice of appeal to the HHS                    (h) If the Departmental Appeals Board       petitions received earlier by the FHWA
Departmental Appeals Board, 200             determines that the applicant is eligible      for exemptions and amendments to the
Independence Avenue, S.W.,                  or that the activities proposed by the         rule, which are currently outstanding.
Washington, D.C. 20201. You shall           applicant are eligible for funding, such       DATES: The effective date of the final
attach to the notice a copy of this         eligibility shall not be effective until the   rule published on December 29, 1994, at
decision and note that you intend an        next cycle of grant proposals are              59 FR 67544 has been extended to
appeal. The appeal must clearly identify    considered by the Administration for           January 2, 1997.
the issue(s) in dispute and contain a       Native Americans. (Statutory authority:
statement of the applicant’s position on    Sections 810(b) of the Native American         FOR FURTHER INFORMATION CONTACT: Mr.
such issue(s) along with pertinent facts    Programs Act of 1974, as amended, 42           Peter C. Chandler, Office of Motor
and reasons in support of the position.     U.S.C. 2991h(b).)                              Carrier Research and Standards, (202)
We are enclosing a copy of 45 CFR part                                                     366–5763; or Mr. Charles E. Medalen,
                                            [FR Doc. 96–20982 Filed 8–16–96; 8:45 am]
1336 which governs the conduct of                                                          Office of the Chief Counsel, (202) 366–
                                            BILLING CODE 4184–01–P
appeals under § 810(b). For additional                                                     1354, Federal Highway Administration,
information on the appeals process see                                                     400 Seventh Street, SW., Washington,
45 CFR 1336.35. (Statutory authority:                                                      D.C. 20590. Office hours are from 7:45
Sections 810(b) of the Native American      DEPARTMENT OF TRANSPORTATION                   a.m. to 4:15 p.m., e.t., Monday through
Programs Act of 1974, as amended, 42                                                       Friday, except Federal holidays.
                                            46 CFR Part 153
U.S.C. 2991h(b).)                                                                          SUPPLEMENTARY INFORMATION:      On
§ 1336.35   Appeal of ineligibility.        Coast Guard                                    December 29, 1994, the FHWA
                                                                                           published a final rule (59 FR 67544)
  The following steps apply when            CFR Correction                                 which implemented the Intermodal Safe
seeking an appeal on a finding of
                                              In title 46 of the Code of Federal           Container Transportation Act of 1992
ineligibility for funding:
  (a) An applicant, which has had its       Regulations, parts 140 to 155, revised as      (the Act) (Pub. L. 102–548, 106 Stat.
application rejected either because it      of October 1, 1995, on page 171,               3646, partly codified at 49 U.S.C. 5901–
has been found ineligible or because the    § 153.1046 was inadvertently omitted.          5907 (formerly 49 U.S.C. 501 and 508)).
activities it proposes are ineligible for   The omitted text should read as follows:       On August 10, 1995 (60 FR 40761), the
funding by the Commissioner of ANA,                                                        FHWA extended the rule’s effective date
                                            § 153.1046   Sulfuric acid.                    until September 1, 1996, to allow the
may appeal the Commissioner’s ruling
                                              No person may liquefy frozen or              intermodal transportation industry
to the HHS Departmental Appeals
                                            congealed sulfuric acid other than by          sufficient time to comply by means of
Board, in writing, within 30 days
                                            external tank heating coils.                   electronic data interchange, and to
following receipt of ineligibility
notification.                               BILLING CODE 1505-01-D                         allow the FHWA, the intermodal
  (b) The appeal must clearly identify                                                     transportation industry, and other
the issue(s) in dispute and contain a                                                      parties enough time to inform affected
statement of the applicant’s position on    Federal Highway Administration                 domestic and foreign entities of their
such issue(s) along with pertinent facts                                                   responsibilities. In April and August of
                                            49 CFR Part 390                                1995, the FHWA received two petitions
and reasons in support of the position.
  (c) Upon receipt of appeal for            [FHWA Docket No. MC–93–17]                     for exemptions and amendments to the
reconsideration of a rejected application                                                  rule. The FHWA delayed the
                                            RIN 2125–AD14                                  international distribution of pamphlets
or activities proposed by an applicant,
the Departmental Appeals Board will                                                        about the rule and other related
                                            Federal Motor Carrier Safety
notify the applicant by certified mail                                                     educational projects until resolution of
                                            Regulations; Intermodal
that the appeal has been received.                                                         the petitions. On March 29, 1996, the
                                            Transportation
  (d) The applicant’s request for                                                          petitioners along with an industry
reconsideration will be reviewed by the     AGENCY: Federal Highway                        coalition requested that the FHWA
Departmental Appeals Board in               Administration (FHWA), DOT.                    delay its decision on the petitions and
accordance with 45 CFR part 16, except      ACTION: Notice; extension of effective         later notified the agency that they would
as otherwise provided in this part.         date.                                          seek legislative action to amend the Act.
  (e) The Commissioner shall have 45                                                       On July 16, 1996, a bill to amend the
days to respond to the applicant’s          SUMMARY:   The FHWA announces the              Act was introduced by the Chairman of
submission under paragraph (a) of this      extension of the effective date of its final   the Senate Committee on Commerce,
section.                                    rule, published on December 29, 1994,          Science, and Transportation with co-
  (f) The applicant shall have 20 days      implementing provisions of the                 sponsorship of the Chairman and
to respond to the Commissioner’s            Intermodal Safe Container                      ranking minority member of the
submission and the parties may be           Transportation Act of 1992. The rule           Subcommittee on Surface
requested to submit additional              was scheduled to take effect on                Transportation and Merchant Marine.
information within a specified time         September 1, 1996, but the FHWA                The bill (S. 1957) would raise the
period before closing the record in the     believes that further extension of the         jurisdictional weight threshold from
appeal.                                     effective date until January 2, 1997, is       4,536 kilograms (10,000 pounds) to
  (g) The Departmental Appeals Board        appropriate based on the inability, to         13,154 kilograms (29,000 pounds);
will review the record in the appeal and    date, of the educational and                   reduce or eliminate paperwork burdens;
provide a final written decision within     informational outreach program                 provide clarification concerning
30 days following the closing of the        undertaken by the FHWA to reach many           applicability, requirements, and
record, unless the Board determines for     foreign shippers; a request from several       terminology; and establish additional
good reason that a decision cannot be       Senators to delay the effective date of        liabilities. On July 23, 1996, the
           Federal Register / Vol. 61, No. 161 / Monday, August 19, 1996 / Rules and Regulations                           42823

sponsors of S. 1957 sent a letter to the    the rule prior to possible enactment of     order to avoid the risk of confusion and
Secretary of Transportation requesting      S. 1957 could disrupt both interstate       disruption that would result from
that the rule’s September 1, 1996,          and foreign commerce. In the event that     frequent regulatory changes.
effective date be extended. The Senators    the rule became effective on September         The FHWA is therefore extending the
expressed concern that implementation       1 and S. 1957 later became law, the rule    effective date of the final rule until
as currently planned could have             would have to be suspended once again       January 2, 1997.
devastating consequences on intermodal      until it could be amended in accordance       Authority: 49 U.S.C. 5901–5907, 31132,
transportation including delays and         with the new law. In view of the            31133, 31136, 31502, and 31504; 49 CFR
severe congestion at ports.                 international reach of the Act and the      1.48.
   The FHWA believes a further
                                            difficulty of explaining United States        Issued on: August 8, 1996.
extension is appropriate because the
two petitions before the agency are not     laws and regulations to foreign shippers    Rodney E. Slater,
resolved, a significant number of foreign   and their intermediaries, the FHWA has      Federal Highway Administrator.
entities are not familiar with their        determined that a further extension of      [FR Doc. 96–21018 Filed 8–16–96; 8:45 am]
responsibilities, and implementation of     the rule’s effective date is warranted in   BILLING CODE 4910–22–M
42824

Proposed Rules                                                                                Federal Register
                                                                                              Vol. 61, No. 161

                                                                                              Monday, August 19, 1996



This section of the FEDERAL REGISTER             established a quarantine and regulations       Done in Washington, DC, this 14th day of
contains notices to the public of the proposed   concerning Karnal bunt in the United         August 1996.
issuance of rules and regulations. The           States.                                      Terry L. Medley,
purpose of these notices is to give interested                                                Administrator, Animal and Plant Health
persons an opportunity to participate in the        The interim rules were published on
                                                                                              Inspection Service.
rule making prior to the adoption of the final   March 28, 1996 (61 FR 13649–13655,
                                                                                              [FR Doc. 96–21068 Filed 8–16–96; 8:45 am]
rules.                                           Docket No. 96–016–3), April 25, 1996
                                                                                              BILLING CODE 3410–34–P
                                                 (61 FR 18233–18235, Docket No. 96–
                                                 016–5), and July 5, 1996 (61 FR 35107–
DEPARTMENT OF AGRICULTURE                        35109, Docket No. 96–016–6 and 61 FR
                                                                                              DEPARTMENT OF HOUSING AND
Animal and Plant Health Inspection               35102–35107, Docket No. 96–016–7).
                                                                                              URBAN DEVELOPMENT
Service                                          Public forums were held in Washington,
                                                 DC, on July 17, 1996, in Kansas City,        Office of Federal Housing Enterprise
7 CFR Part 301                                   MO, on August 13, 1996, in Phoenix,          Oversight
[Docket 96–016–13]
                                                 AZ, on August 14, 1996, and in
                                                 Imperial, CA, on August 15, 1996. A          12 CFR Part 1270
Karnal Bunt; Clarification                       notice of a public forum on August 20,       RIN 2550–AA02
                                                 1996, in Las Cruces, NM, was published
AGENCY:  Animal and Plant Health                 in the Federal Register on August 13,        Risk-Based Capital
Inspection Service, USDA.                        1996 (61 FR 41990–41991, Docket No.
ACTION: Proposed rule; clarification.            96–016–12). On August 2, 1996, we            AGENCY:  Office of Federal Housing
                                                                                              Enterprise Oversight, HUD.
SUMMARY: We are advising the public              published a proposed rule (61 FR
                                                 40354–40361, Docket No. 96–016–10) in        ACTION: Extension of public comment
that the Department intends to propose                                                        period for first notice of proposed
revisions to the current Karnal bunt             which we proposed changes to certain
                                                 of the Karnal bunt regulations. Written      rulemaking.
compensation regulations for the 1996–
1997 crop year, and that publication in          comments on the interim rules and the        SUMMARY:   On June 11, 1996 (61 FR
the Federal Register on August 2, 1996,          proposed rule are required to be             29592), the Office of Federal Housing
of the current compensation provisions           received by September 3, 1996.               Enterprise Oversight (OFHEO)
as part of a proposal to amend other                The Department is reviewing the issue     published a notice of proposed
aspects of regulations should not be             of compensation under the proposed           rulemaking (NPR) entitled ‘‘Risk-Based
interpreted to mean that the Department          regulatory changes we published in the       Capital,’’ which proposes the
has made a decision on compensation.             Federal Register on August 2, 1996. In       methodology for identifying the
DATES: The comment closing date for              that proposal, the current compensation      benchmark loss experience. This NPR is
the proposed rule, Docket No. 96–016–            provisions were republished with the         a significant step in the process of
10, remains September 3, 1996.                   proposed regulatory changes, which           developing a regulation to establish risk-
ADDRESSES: Please send an original and                                                        based capital standards for the Federal
                                                 should not be interpreted to mean that
three copies of written comments to                                                           National Mortgage Association and the
                                                 the Department has made a decision on
Docket No. 96–016–10, Regulatory                                                              Federal Home Loan Mortgage
                                                 compensation for the 1996–1997 crop
Analysis and Development, PPD,                                                                Corporation. OFHEO has been requested
                                                 year. Additionally, there are no             to extend the comment period. To
APHIS, Suite 3C03, 4700 River Road,              provisions in the current regulations for
Unit 118, Riverdale, MD 20737–1238.                                                           ensure that the public has ample
                                                 compensation for wheat for propagative       opportunity to participate in the
Please state that your comments refer to
                                                 purposes or straw. Also, the                 rulemaking process by commenting on
Docket No. 96–016–10. Comments
                                                 compensation provisions do not reflect       the issues involved in the NPR, today’s
received may be inspected at USDA,
                                                 the changed market conditions in the         notice extends the public comment
room 1141, South Building, 14th Street
and Independence Avenue SW.,                     quarantined area as a result of Karnal       period from September 9, 1996, through
Washington, DC, between 8 a.m. and               bunt. The Department plans to publish        October 24, 1996.
4:30 p.m., Monday through Friday,                a proposed rule on compensation for the      DATES: The comment period is extended
except holidays. Persons wishing to              1996–1997 crop year as soon as possible      until October 24, 1996.
inspect comments are requested to call           after a decision is made on the final rule   ADDRESSES: Send written comments to
ahead on (202) 690–2817 to facilitate            regarding the regulatory system for          Anne E. Dewey, General Counsel, Office
entry into the comment reading room.             Karnal bunt. Comments are welcome on         of General Counsel, Office of Federal
FOR FURTHER INFORMATION CONTACT: Mr.             what you believe that proposal should        Housing Enterprise Oversight, 1700 G
Stephen Poe, Operations Officer,                 contain, and should be directed as           Street, N.W., Fourth Floor, Washington,
Domestic and Emergency Operations,               indicated under the heading ADDRESSES.       D.C. 20552.
PPQ, APHIS, 4700 River Road Unit 134,              Authority: 7 U.S.C. 150bb, 150dd, 150ee,   FOR FURTHER INFORMATION CONTACT:
Riverdale, MD 20737–1236, (301) 734–             150ff, 161, 162, and 164–167; 7 CFR 2.22,    David J. Pearl, Director, Office of
8247.                                            2.80, and 371.2(c).                          Research, Analysis and Capital
SUPPLEMENTARY INFORMATION: In a series                                                        Standards; or Gary L. Norton, Deputy
of interim rules published in the                                                             General Counsel, Office of General
Federal Register since March, 1996, we                                                        Counsel, Office of Federal Housing
                  Federal Register / Vol. 61, No. 161 / Monday, August 19, 1996 / Proposed Rules                           42825

Enterprise Oversight, 1700 G Street,         FOR FURTHER INFORMATION CONTACT:   Gary     elevator coupling mechanism, and
N.W., Fourth Floor, Washington, D.C.         Lium, Aerospace Engineer,                   result in the uncommanded uncoupling
20552, telephone (202) 414–3800 (not a       Standardization Branch, ANM–113,            of the elevators. This condition, if not
toll-free number).                           FAA, Transport Airplane Directorate,        detected and corrected in a timely
Mark A. Kinsey,                              1601 Lind Avenue, SW., Renton,              manner, could result in reduced
Acting Director, Office of Federal Housing   Washington 98055–4056; telephone            controllability of the airplane.
Enterprise Oversight.                        (206) 227–1112; fax (206) 227–1149.
                                                                                         Explanation of Relevant Service
[FR Doc. 96–21016 Filed 8–16–96; 8:45 am]    SUPPLEMENTARY INFORMATION:                  Information
BILLING CODE 4220–01–P
                                             Comments Invited                               Avions de Transport Regional (ATR)
                                               Interested persons are invited to         has issued Service Bulletin ATR72–27–
                                             participate in the making of the            1044, dated March 5, 1996, which
DEPARTMENT OF TRANSPORTATION                                                             describes procedures for modifying the
                                             proposed rule by submitting such
Federal Aviation Administration              written data, views, or arguments as        pitch uncoupling mechanism of the
                                             they may desire. Communications shall       elevators. Among other actions, the
14 CFR Part 39                               identify the Rules Docket number and        modification involves replacing the
                                             be submitted in triplicate to the address   aluminum flanges of the pitch
[Docket No. 96–NM–140–AD]                                                                uncoupling mechanism with steel
                                             specified above. All communications
RIN 2120–AA64                                received on or before the closing date      flanges, and reidentifying the
                                             for comments, specified above, will be      uncoupling mechanism with a new part
Airworthiness Directives; Aerospatiale       considered before taking action on the      number after modification. The
Model ATR72 Series Airplanes                 proposed rule. The proposals contained      replacement will prevent fatigue
AGENCY: Federal Aviation                     in this notice may be changed in light      cracking of the pitch uncoupling
Administration, DOT.                         of the comments received.                   mechanism and the torque tube of the
                                               Comments are specifically invited on      elevators. The DGAC classified this
ACTION: Notice of proposed rulemaking
                                             the overall regulatory, economic,           service bulletin as mandatory and
(NPRM).
                                             environmental, and energy aspects of        issued French airworthiness directive
SUMMARY: This document proposes the          the proposed rule. All comments             (CN) 96–019–028(B), dated January 17,
adoption of a new airworthiness              submitted will be available, both before    1996, in order to assure the continued
directive (AD) that is applicable to         and after the closing date for comments,    airworthiness of these airplanes in
certain Aerospatiale Model ATR72             in the Rules Docket for examination by      France.
series airplanes. This proposal would        interested persons. A report                FAA’s Conclusions
require modification of the pitch            summarizing each FAA-public contact
uncoupling mechanism of both                 concerned with the substance of this          This airplane model is manufactured
elevators. This proposal is prompted by      proposal will be filed in the Rules         in France and is type certificated for
reports of fatigue cracking of the pitch     Docket.                                     operation in the United States under the
uncoupling mechanism and the torque            Commenters wishing the FAA to             provisions of section 21.29 of the
tube of the elevator. Failure of the pitch   acknowledge receipt of their comments       Federal Aviation Regulations (14 CFR
uncoupling mechanism due to fatigue          submitted in response to this notice        21.29) and the applicable bilateral
cracking could result in the                 must submit a self-addressed, stamped       airworthiness agreement. Pursuant to
uncommanded uncoupling of the                postcard on which the following             this bilateral airworthiness agreement,
elevators. The actions specified by the      statement is made: ‘‘Comments to            the DGAC has kept the FAA informed
proposed AD are intended to prevent          Docket Number 96–NM–140–AD.’’ The           of the situation described above. The
such fatigue cracking and subsequent         postcard will be date stamped and           FAA has examined the findings of the
uncommanded uncoupling of the                returned to the commenter.                  DGAC, reviewed all available
elevators, which could result in reduced                                                 information, and determined that AD
                                             Availability of NPRMs
controllability of the airplane.                                                         action is necessary for products of this
                                               Any person may obtain a copy of this      type design that are certificated for
DATES: Comments must be received by          NPRM by submitting a request to the         operation in the United States.
September 27, 1996.                          FAA, Transport Airplane Directorate,
ADDRESSES: Submit comments in                ANM–103, Attention: Rules Docket No.        Explanation of Requirements of
triplicate to the Federal Aviation           96–NM–140–AD, 1601 Lind Avenue,             Proposed Rule
Administration (FAA), Transport              SW., Renton, Washington 98055–4056.           Since an unsafe condition has been
Airplane Directorate, ANM–103,                                                           identified that is likely to exist or
Attention: Rules Docket No. 96–NM–           Discussion
                                                                                         develop on other airplanes of the same
140–AD, 1601 Lind Avenue, SW.,                                   ´ ´
                                               The Direction Generale de l’Aviation      type design registered in the United
Renton, Washington 98055–4056.               Civile (DGAC), which is the                 States, the proposed AD would require
Comments may be inspected at this            airworthiness authority for France          modification of the elevator uncoupling
location between 9:00 a.m. and 3:00          recently notified the FAA that an unsafe    mechanism. This action would be
p.m., Monday through Friday, except          condition may exist on certain              required to be accomplished in
Federal holidays.                            Aerospatiale Model ATR72 series             accordance with the service bulletin
   The service information referenced in     airplanes. The DGAC advises that it has     described previously.
the proposed rule may be obtained from       received reports indicating that fatigue
Aerospatiale, 316 Route de Bayonne,          cracks have been found at the junction      Cost Impact
31060 Toulouse, Cedex 03, France. This       of the center section of the pitch            The FAA estimates that 51 airplanes
information may be examined at the           uncoupling mechanism of the elevators,      of U.S. registry would be affected by this
FAA, Transport Airplane Directorate,         and the torque tube that connects the       proposed AD, that it would take
1601 Lind Avenue, SW., Renton,               operation of both elevators. Such fatigue   approximately 55 work hours per
Washington.                                  cracking could cause failure of the         airplane to accomplish the proposed
42826            Federal Register / Vol. 61, No. 161 / Monday, August 19, 1996 / Proposed Rules

actions, and that the average labor rate       § 39.13   [Amended]                                  Issued in Renton, Washington, on August
is $60 per work hour. The required parts                                                          12, 1996.
                                                 2. Section 39.13 is amended by
would be provided by the manufacturer          adding the following new airworthiness             Darrell M. Pederson,
at not cost to the operator. Based on          directive:                                         Acting Manager, Transport Airplane
these figures, the cost impact of the                                                             Directorate, Aircraft Certification Service.
                                                  Aerospatiale: Docket 96–NM–140–AD.
proposed AD on U.S. operators is                                                                  [FR Doc. 96–21010 Filed 8–16–96; 8:45 am]
estimated to be $168,300, or $3,300 per           Applicability: Model ATR72–101, –102,           BILLING CODE 4910–13–U
                                               –201, –202, –211, and –212 series airplanes
airplane.                                      on which Modification 4495 or Aerospatiale
   The cost impact figure discussed            Service Bulletin ATR 72–27–1044 has not
above is based on assumptions that no          been accomplished; certificated in any             DEPARTMENT OF HEALTH AND
operator has yet accomplished any of           category.                                          HUMAN SERVICES
the proposed requirements of this AD              Note 1: This AD applies to each airplane
action, and that no operator would             identified in the preceding applicability          Food and Drug Administration
accomplish those actions in the future if      provision, regardless of whether it has been
                                               otherwise modified, altered, or repaired in        21 CFR Parts 201 and 331
this AD were not adopted.
                                               the area subject to the requirements of this
                                               AD. For airplanes that have been modified,         [Docket No. 95N–0254]
Regulatory Impact
                                               altered, or repaired so that the performance       RIN 0910–AA63
   The regulations proposed herein             of the requirements of this AD is affected, the
would not have substantial direct effects      owner/operator must request approval for an        Labeling of Orally Ingested Over-the-
on the States, on the relationship             alternative method of compliance in
                                               accordance with paragraph (c) of this AD.
                                                                                                  Counter Drug Products Containing
between the national government and            The request should include an assessment of        Calcium, Magnesium, and Potassium;
the States, or on the distribution of          the effect of the modification, alteration, or     Correction
power and responsibilities among the           repair on the unsafe condition addressed by
various levels of government. Therefore,       this AD; and, if the unsafe condition has not
                                                                                                  AGENCY:   Food and Drug Administration,
in accordance with Executive Order             been eliminated, the request should include        HHS.
12612, it is determined that this              specific proposed actions to address it.           ACTION: Notice of proposed rulemaking;
proposal would not have sufficient                Compliance: Required as indicated, unless       correction.
federalism implications to warrant the         accomplished previously.
                                                  To prevent uncoupling of the elevators due
                                                                                                  SUMMARY:    The Food and Drug
preparation of a Federalism Assessment.                                                           Administration (FDA) is correcting a
                                               to failure of the elevator coupling mechanism
   For the reasons discussed above, I          and resultant reduced controllability of the       notice of proposed rulemaking that
certify that this proposed regulation (1)      airplane, accomplish the following:                appeared in the Federal Register of
is not a ‘‘significant regulatory action’’        (a) Prior to the accumulation of 12,000 total   April 22, 1996 (61 FR 17807). The
under Executive Order 12866; (2) is not        landings, or within 1,000 landings after the       document proposed to amend the
a ‘‘significant rule’’ under the DOT           effective date of this AD, whichever occurs        general labeling provisions for over-the-
Regulatory Policies and Procedures (44         later: Modify the elevator uncoupling              counter (OTC) drug products intended
                                               mechanism in accordance with Aerospatiale          for oral ingestion to require the content
FR 11034, February 26, 1979); and (3) if
                                               Service Bulletin ATR72–27–1044, dated
promulgated, will not have a significant       March 5, 1996.
                                                                                                  per dosage unit and warning labeling
economic impact, positive or negative,            (b) As of the effective date of this AD, no     when the product contains certain
on a substantial number of small entities      person shall install a pitch uncoupling            levels of calcium, magnesium, or
under the criteria of the Regulatory           mechanism of the elevator, having the              potassium. The document was
Flexibility Act. A copy of the draft           following part numbers, on any airplane:           published with some errors. This
regulatory evaluation prepared for this        S2738194100800                                     document corrects those errors.
action is contained in the Rules Docket.       S2738194102895                                     DATES: Written comments by July 22,
A copy of it may be obtained by                S2738194102200                                     1996. Written comments on the agency’s
contacting the Rules Docket at the             S2738194102400                                     economic impact determination by July
                                               S2738194102800                                     22, 1996. The agency is proposing that
location provided under the caption
                                               S2738194103200                                     any final rule based on this proposal be
ADDRESSES.
                                                  (c) An alternative method of compliance or      effective 12 months after the date of its
List of Subjects in 14 CFR Part 39             adjustment of the compliance time that             publication in the Federal Register.
                                               provides an acceptable level of safety may be
                                                                                                  FOR FURTHER INFORMATION CONTACT:
  Air transportation, Aircraft, Aviation       used if approved by the Manager,
                                               Standardization Branch, ANM–113, FAA,              William E. Gilbertson, Center for Drug
safety, Safety.
                                               Transport Airplane Directorate. Operators          Evaluation and Research (HFD–105),
The Proposed Amendment                         shall submit their requests through an             Food and Drug Administration, 5600
                                               appropriate FAA Principal Maintenance              Fishers Lane, Rockville, MD 20857,
  Accordingly, pursuant to the                 Inspector, who may add comments and then           301–827–2304.
authority delegated to me by the               send it to the Manager, Standardization               In FR Doc. 96–9734, appearing on
Administrator, the Federal Aviation            Branch, ANM–113.                                   page 17807 in the Federal Register of
Administration proposes to amend part             Note 2: Information concerning the              Monday, April 22, 1996, the following
39 of the Federal Aviation Regulations         existence of approved alternative methods of       corrections are made:
(14 CFR part 39) as follows:                   compliance with this AD, if any, may be               1. On page 17808, in the third
                                               obtained from the Standardization Branch,
                                               ANM–113.
                                                                                                  column, in the third full paragraph, in
PART 39—AIRWORTHINESS                                                                             the seventh line, ‘‘vitamin E’’ is
DIRECTIVES                                        (d) Special flight permits may be issued in
                                               accordance with sections 21.197 and 21.199
                                                                                                  corrected to read ‘‘vitamin A.’’
                                               of the Federal Aviation Regulations (14 CFR           2. On page 17809, in the first column,
  1. The authority citation for part 39                                                           in the first full paragraph, in the second
                                               21.197 and 21.199) to operate the airplane to
continues to read as follows:                                                                     line, ‘‘vitamin E’’ is corrected to read
                                               a location where the requirements of this AD
  Authority: 49 U.S.C. 106(g), 40113, 44701.   can be accomplished.                               ‘‘vitamin A,’’ and in the same
                  Federal Register / Vol. 61, No. 161 / Monday, August 19, 1996 / Proposed Rules                                     42827

paragraph, beginning in the twelfth line,    Alaska, as well as other significant local   intent to submit adverse comment or
the two last sentences are removed and       factors.                                     request an opportunity for a public
a new sentence is added to read ‘‘Thus,         The temporary exemption for the           hearing on this action should contact
for foods containing less than 20 mg of      areas of Alaska served by the FAHS will      Paul N. Argyropoulos, U.S.
calcium or less than 8 mg of magnesium       expire on October 1, 1996. On December       Environmental Protection Agency,
per serving, the content may be declared     12, 1995, the Governor of Alaska             Office of Air and Radiation, (202) 233–
as zero or as less than 2 percent of the     petitioned EPA to permanently exempt         9004.
Daily Value, except that magnesium           the areas covered by the temporary           FOR FURTHER INFORMATION CONTACT:
need not be declared unless a claim is       exemption. In this action, EPA is
made about the nutrient.’’                   proposing to extend the temporary            Paul N. Argyropoulos, Environmental
  3. On page 17809, in the first column,     exemption for an additional 24 months,       Protection Specialist, U.S.
in the third full paragraph, in the          but reserving a final decision on            Environmental Protection Agency,
eleventh line, after the word ‘‘amount.’’,   whether it should be permanent.              Office of Air and Radiation, (202) 233–
the following sentence is added: ‘‘In the       Based on the factors and conditions       9004.
Federal Register of December 21, 1995        identified in Alaska’s December 12,          SUPPLEMENTARY INFORMATION:
(60 FR 66206), FDA published a               1995 petition, a continuation of the
                                                                                          Regulated Entities
proposal entitled ‘Food Labeling:            exemption is warranted at least
Nutrient Content Claims, General             temporarily. However, EPA believes that        Entities potentially regulated by this
Principles; Health Claims, General           recent comments submitted to the             action are refiners, marketers,
Requirements and Other Specific              agency merit further investigation before    distributors, retailers and wholesale
Requirements for Individual Health           making a final decision on a permanent       purchaser-consumers of diesel fuel.
Claims’ that would revise this               exemption. EPA is therfore proposing to      Regulated entities would include the
requirement. (See 60 FR 66206 at             extend the temporary exemption unitl         following:
66225.) Comments on the revision will        October 1, 1998, or until such time that
be addressed in that rulemaking              a final decision is made on the                Category          Examples of regulated entities
proceeding.’’                                permanent exemption, whichever is
                                             shorter.                                     Industry ........   Petroleum refiners, distribu-
  Dated: July 11, 1996.                                                                                         tors, marketers, retailers
William K. Hubbard,                             In the final rules section of this
                                                                                                                (service station owners and
                                             Federal Register, EPA is issuing this                              operators), wholesale pur-
Associate Commissioner for Policy
Coordination.                                exemption as a direct final decision                               chaser-consumers (fleet
                                             without prior proposal, because EPA                                managers who operate a
[FR Doc. 96–21049 Filed 8–16–96; 8:45 am]
                                             views this as a noncontroversial action                            refueling facility to refuel
BILLING CODE 4160–01–F
                                             and anticipates no adverse comments. A                             motor vehicles).
                                             detailed rationale for the proposed          Citizens ........   Any owner or operator of a
                                             change is set forth in the direct final                            diesel motor vehicle.
ENVIRONMENTAL PROTECTION                     decision. If no adverse comments are         Government          Federal facilities, including
AGENCY                                                                                                          military bases, who operate
                                             received in response to the direct final                           a refueling facility to refuel
                                             decision, no further activity is                                   motor vehicles.
40 CFR Part 80
                                             contemplated in relation to this
[FRL–5555–4]                                 proposed decision. If EPA receives              This table is not intended to be
                                             adverse comments, the direct final           exhaustive, but rather provides a guide
State of Alaska Petition for Exemption       decision will be withdrawn and all           for readers regarding entities likely to be
from Diesel Fuel Sulfur Requirement          public comments received will be             regulated by this action. This table lists
                                             addressed in a subsequent final decision     the types of entities that EPA is now
AGENCY: Environmental Protection
                                             based on this proposed decision. EPA         aware could be potentially regulated by
Agency.
                                             will not institute a second comment          this action. Other types of entities not
ACTION: Notice of proposed decision.         period on this action. Any parties           listed in the table could also be
SUMMARY: On March 14, 1994, EPA              interested in commenting on this notice      regulated. To determine whether your
granted the State of Alaska a waiver         should do so at this time.                   entity is regulated by this action, you
from the requirements of EPA’s low           DATES: Comments on this proposed             should carefully examine section 80.29
sulfur diesel fuel program, permanently      decision must be received by September       of the Code of Federal Regulations.
exempting Alaska’s remote areas and          18, 1996.                                       For additional information, see the
providing a temporary exemption for          ADDRESSES: Written comments on this          direct final decision published in this
areas of Alaska served by the Federal        proposed action should be addressed to       Federal Register.
Aid Highway System (FAHS). The               Public Docket No. A–96–26, Waterside
exemption applied to certain                 Mall (Room M–1500), Environmental            List of Subjects in 40 CFR Part 80
requirments in setion 211 (i) and (g) of     Protection Agency, Air Docket Section,         Environmental protection, Air
the Clean Air Act, as implemented in         401 M Street, S.W., Washington, D.C.         pollution control, Diesel fuel, Motor
EPA’s regulations. These exemptions          20460. Documents related to this rule        vehicle pollution.
were based on EPA’s determination that       have been placed in the public docket
                                                                                            Dated: August 12, 1996.
it would be unreasonable to require          and may be inspected between the
persons in these areas to comply with        hours of 8:00 a.m. to 5:30 p.m., Monday      Carol M. Browner,
the low sulfur diesel fuel requirements      through Friday. A reasonable fee may be      Administrator.
due to unique geographical,                  charged for copying docket material.         [FR Doc. 96–21079 Filed 8–16–96; 8:45 am]
meteorological and economic factors for      Those wishing to notify EPA of their         BILLING CODE 6560–50–P
42828            Federal Register / Vol. 61, No. 161 / Monday, August 19, 1996 / Proposed Rules

DEPARTMENT OF COMMERCE                    9721 Executive Center Drive N., St.       limit for banded rudderfish, greater
                                          Petersburg, FL 33702.                     amberjack, and lesser amberjack,
National Oceanic and Atmospheric            Requests for copies of Amendment 12,    combined, of one fish; and establish a
Administration                            which includes an environmental           20-fish aggregate bag limit for reef fish
                                          assessment and a regulatory impact        species for which there is no other bag
50 CFR Part 622                           review, should be sent to the Gulf of     limit.
[I.D. 070296D]                            Mexico Fishery Management Council,
                                                                                      Based on a preliminary evaluation of
                                          5401 W. Kennedy Boulevard, Suite 331,
Reef Fish Fishery of the Gulf of                                                    Amendment 12, NMFS has disapproved
                                          Tampa, FL 33609–2486, phone: 813–
Mexico; Amendment 12                      228–2815; fax: 813–225–7015.              the proposed size limit reduction and
                                                                                    the future, automatic size increase for
AGENCY:  National Marine Fisheries        FOR FURTHER INFORMATION CONTACT:
                                                                                    red snapper harvested in the
Service (NMFS), National Oceanic and      Robert Sadler, 813–570–5305.
                                                                                    commercial fishery, because NMFS
Atmospheric Administration (NOAA),        SUPPLEMENTARY INFORMATION: The
                                                                                    determined that those measures were
Commerce.                                 Magnuson Fishery Conservation and         inconsistent with the Magnuson Act and
ACTION: Notice of availability of an      Management Act (Magnuson Act),            the agency’s policy of risk-averse
amendment to a fishery management         requires that a Council-prepared
                                                                                    decisionmaking.
plan; request for comments.               amendment to a fishery management
                                          plan be submitted to NMFS for review        Proposed regulations to implement
SUMMARY: NMFS announces that the          and approval, disapproval, or partial     the measures of Amendment 12 that
Gulf of Mexico Fishery Management         disapproval.                              were not disapproved based on the
Council (Council) has submitted              Amendment 12 would reduce the          preliminary evaluations are scheduled
Amendment 12 to the Fishery               minimum size limit for red snapper        to be published for public comment.
Management Plan for the Reef Fish         harvested in the commercial fishery         Authority: 16 U.S.C. 1801 et seq.
Resources of the Gulf of Mexico for       from 15 inches (38.1 cm) to 14 inches
review, approval, and implementation                                                  Dated: August 13, 1996.
                                          (35.6 cm) and eliminate the scheduled,
by NMFS. Written comments are             automatic increase to 16 inches (40.6     Richard W. Surdi,
requested from the public.                cm) for the commercial fishery in 1998;   Acting Director, Office of Fisheries
DATES: Written comments must be           establish a minimum size limit of 28      Conservation and Management, National
received on or before October 3, 1996.    inches (71.1 cm) fork length for banded   Marine Fisheries Service.
ADDRESSES: Comments must be mailed        rudderfish and lesser amberjack taken     [FR Doc. 96–21013 Filed 8–13–96; 4:45 pm]
to the Southeast Regional Office, NMFS,   under the bag limits; establish a bag     BILLING CODE 3510–22–P
                                                                                                                                    42829

Notices                                                                                         Federal Register
                                                                                                Vol. 61, No. 161

                                                                                                Monday, August 19, 1996



This section of the FEDERAL REGISTER              ahead on (202) 690–2817 to facilitate         for the proper performance of the
contains documents other than rules or            entry into the comment reading room.          functions of the agency, including
proposed rules that are applicable to the         FOR FURTHER INFORMATION CONTACT: For          whether the information will have
public. Notices of hearings and investigations,                                                 practical utility;
                                                  information on the regulations and
committee meetings, agency decisions and                                                           (2) Evaluate the accuracy of our
rulings, delegations of authority, filing of
                                                  standards governing the humane
                                                  handling, care, treatment, and                estimate of the burden of the proposed
petitions and applications and agency
statements of organization and functions are      transportation of certain animals by          collection of information, including the
examples of documents appearing in this           dealers, research institutions, exhibitors,   validity of the methodology and
section.                                          carriers, and intermediate handlers,          assumptions used;
                                                  contact Dr. Morley Cook, Acting                  (3) Enhance the quality, utility, and
                                                  Assistant Deputy Administrator,               clarity of the information to be
DEPARTMENT OF AGRICULTURE                         Regulatory Enforcement and Animal             collected; and
                                                  Care, APHIS, 4700 River Road, Unit 84,           (4) Minimize the burden of the
Animal and Plant Health Inspection                Riverdale, MD 20737–1234, (301) 734–          collection of information on those who
Service                                           4981; or e-mail: MCook@aphis.usda.gov.        are to respond, through use, as
                                                  For copies of more detailed information,      appropriate, of automated, electronic,
[Docket No. 96–056–1]                             contact Ms. Cheryl Jenkins, APHIS,            mechanical, and other collection
                                                  Information Collection Coordinator, at        technologies, e.g., permitting electronic
Notice of Request for Extension of a              (301) 734–5360.                               submission of responses.
Currently Approved Information                                                                     Estimate of Burden: Public reporting
                                                  SUPPLEMENTARY INFORMATION:                    burden for this collection of information
Collection
                                                     Title: Animal Welfare.                     is estimated to average .547 hours per
AGENCY:  Animal and Plant Health                     OMB Number: 0579–0093.                     response.
Inspection Service, USDA.                            Expiration Date of Approval:                  Respondents: Dealers, exhibitors,
ACTION: Approved information                      December 31, 1996.                            carriers, handlers, and research
collection extension; comment request.               Type of Request: Extension of a            facilities.
                                                  currently approved information                   Estimated Number of Respondents:
SUMMARY: In accordance with the                   collection.                                   8,200.
Paperwork Reduction Act of 1995, this                Abstract: Regulations and standards           Estimated Number of Responses per
notice announces the Animal and Plant             have been promulgated under the               Respondent: 9.798.
Health Inspection Service’s intention to          Animal Welfare Act (the Act) to ensure           Estimated Total Annual Burden on
request an extension of a currently               that animals intended for use in              Respondents: 43,975 hours.
approved information collection in                research facilities, for exhibition              All responses to this notice will be
support of regulations under the Animal           purposes, or for use as pets, are             summarized and included in the request
Welfare Act governing the humane                  provided humane care and treatment.           for Office of Management and Budget
handling, care, treatment, and                    The humane treatment of animals               approval of the information collection.
transportation of certain animals by              during transportation in commerce is
                                                                                                  Done in Washington, DC, this 13th day of
dealers, research institutions, exhibitors,       also assured. Sections 10, 11, 12, and 13     August 1996.
carriers, and intermediate handlers.              of the Act authorize and require certain
                                                                                                Terry L. Medley,
DATES: Comments on this notice must be
                                                  recordkeeping requirements for
                                                                                                Administrator, Animal and Plant Health
received by October 18, 1996 to be                regulated facilities which are further
                                                                                                Inspection Service.
assured of consideration.                         explained in 9 CFR part 3, subparts A
                                                                                                [FR Doc. 96–21072 Filed 8–16–96; 8:45 am]
                                                  and D of the regulations and standards.
ADDRESSES: Send comments regarding                   The records provide the necessary          BILLING CODE 3410–34–P
the accuracy of burden estimate, ways to          data for reviewing and evaluating
minimize the burden (such as the use of           program compliance by regulated
automated collection techniques or                facilities, and provide a workable            Commodity Credit Corporation
other forms of information technology),           enforcement system to carry out the
or any other aspect of this collection of                                                       Notice of Request for Extension and
                                                  requirements of the Act, and the intent       Revision of a Currently Approved
information to: Docket No. 96–056–1,              of Congress, on a practical daily basis
Regulatory Analysis and Development,                                                            Information Collection
                                                  without resorting to more detailed and
PPD, APHIS, suite 3C03, 4700 River                stringent regulations and standards.          AGENCY: Commodity Credit Corporation,
Road Unit 118, Riverdale, MD 20737–                  The above reporting and                    USDA.
1238. Please send an original and three           recordkeeping requirements do not             ACTION: Notice and request for
copies, and state that your comments              mandate the use of any official               comments.
refer to Docket 96–056–1. Comments                government form.
received may be inspected at USDA,                   The purpose of this notice is to solicit   SUMMARY:   In accordance with the
room 1141, South Building, 14th Street            comments from the public (as well as          Paperwork Reduction Act of 1995, this
and Independence Avenue SW.,                      affected agencies) concerning our             notice announces the Commodity Credit
Washington, DC, between 8 a.m. and                information collection. We need this          Corporation’s (CCC) intention to request
4:30 p.m., Monday through Friday,                 outside input to help us:                     an extension for and revision to a
except holidays. Persons wishing to                  (1) Evaluate whether the proposed          currently approved information
inspect comments are requested to call            collection of information is necessary        collection in support of the regulations
42830               Federal Register / Vol. 61, No. 161 / Monday, August 19, 1996 / Notices

governing the foreign donation of            on those who are to respond, including            Abstract: The information collected
agricultural commodities under both the      through the use of automated,                  under Office of Management and Budget
section 416(b) and the Food for Progress     electronic, mechanical, or other               (OMB) Number 0560–0074, as identified
programs based on re-estimates.              technological collection techniques or         above, is needed to enable the Farm
DATES: Comments on this notice must be       other forms of information technology.         Service Agency (FSA) to effectively
received by October 18, 1996, to be            Comments may be sent to Ira D.               administer the regulation relating to all
assured of consideration.                    Branson, Director, Commodity Credit            aspects of the cotton loan program.
                                             Corporation Program Support Division,             FSA County Offices, independent
ADDITIONAL INFORMATION OR COMMENTS:
                                             Foreign Agricultural Service, U.S.             Cotton Clerks, Cooperative Marketing
Contact Ira D. Branson, Director,
                                             Department of Agriculture, Stop 1031,          Associations and Loan Servicing Agents
Commodity Credit Corporation Program                                                        use various manual and automated
                                             1400 Independence Avenue, S.W.,
Support Division, Foreign Agricultural                                                      forms to collect information from cotton
                                             Washington, DC 20250–1031.
Service, U.S. Department of Agriculture,                                                    producers for purposes of administering
                                               All responses to this notice will be
Stop 1031, Washington, DC 20250–                                                            the cotton loan program. The 1996 Act
                                             summarized and included in the request
1031, telephone (202) 720–3573.                                                             terminated authority to extend cotton
                                             for OMB approval. All comments will
SUPPLEMENTARY INFORMATION:                   also become a matter of public record.         loans for crop years 1996 through 2002.
                                               Signed at Washington, D.C., August 9,        As a result, form ‘‘CCC Cotton A2’’ used
  Title: Foreign Donation of
                                             1996.                                          for upland cotton voluntary loan
Agricultural Commodities.
                                             Timothy J. Galvin,                             extensions will become obsolete,
  OMB Number: 0551–0035.
                                                                                            effective April 1, 1997. Other
  Expiration Date of Approval: July 31,      Acting Administrator, Foreign Agricultural
                                             Service and Vice President, Commodity Credit   administrative changes to the cotton
1997.
                                             Corporation.                                   loan program have already made
  Type of Request: Extension and
                                             [FR Doc. 96–21017 Filed 8–16–96; 8:45 am]      obsolete form ‘‘CCC–837’’, used to give
revision of a currently approved
                                                                                            notice to move cotton; forms ‘‘CCC–
information collection.                      BILLING CODE 3410–05–M
                                                                                            813’’ and ‘‘CCC–813–1’’ respectively,
  Abstract: Cooperating sponsors must
                                                                                            used for release of cotton warehouse
agree to provide requested proposal
                                             Request for Extension and Revision of          receipts; and form ‘‘CCC–813–2’’, used
documents and compliance and related
                                             a Currently Approved Information               to provide a schedule of cotton
reports until commodities and/or local
                                             Collection                                     redemptions. The aforementioned
currencies generated from the sale
                                                                                            changes will significantly reduce the
thereof are utilized. Documents are used     AGENCY: Commodity Credit Corporation,          public reporting burden for cotton loan
to develop effective agreements and          USDA.                                          program participants, as shown in the
assure provisions/objectives are met.
                                             ACTION: Notice and request for                 following revised estimates:
Respondents are generally U.S. private                                                         Respondents: Cotton producers.
                                             comments.
voluntary organizations, U.S.                                                                  Estimated Number of Respondents:
cooperatives, and foreign governments.       SUMMARY:   In accordance with the              200,000.
  Estimate of Burden: The public             Paperwork Reduction Act of 1995, this             Estimated Average Time to Respond:
reporting burden for these collections       notice announces the intention of the          15 minutes.
vary in direct relation to the number        Commodity Credit Corporation (CCC) to             Estimated Total Annual Responses:
and type of agreements in addition to        request an extension for and revision to       513,255.
the type of reporting requested.             an information collection currently               Estimated Number of Reports Filed
  Respondents: U.S. private voluntary        approved in support of the Cotton Loan         per Person: 2.56.
organizations, U.S. cooperatives, and        Program Regulations issued under                  Estimated Total Burden Hours:
foreign governments.                         authority of the CCC Charter Act.              128,318 hours.
  Estimated Number of Respondents: 33        Program changes mandated by the                   Topics for comments include but are
per annum.                                   Federal Agriculture Improvement and            not limited to the following: (a) Whether
  Estimated Number of Responses Per          Reform Act of 1996 (1996 Act) and other        the collection of information is
Respondent: 66 per annum.                    administrative decisions obsolete              necessary for the proper performance of
  Estimated Total Annual Burden of           several forms and result in a decrease in      the functions of the agency, including
Respondents: 21,417 hours.                   the number of burden hours for                 whether the information will have
  Copies of this information collection      information collection under the cotton        practical utility; (b) the accuracy of the
can be obtained from Valerie Countiss,       loan program.                                  agency’s estimate of burden including
the Agency Information Collection            DATES: Comments on this notice must be         the validity of the methodology and
Coordinator, at (202) 720–6713.              received on or before October 18, 1996         assumptions used; (c) ways to enhance
  Requests for comments: Send                to be assured consideration.                   the quality, utility and clarity of the
comments regarding (a) whether the           ADDITIONAL INFORMATION: George A.
                                                                                            information to be collected; or (d) ways
proposed collection of information is        Stickels, Agricultural Program                 to minimize the burden of the collection
necessary for the proper performance of      Specialist, USDA-Farm Service Agency-          of information on those who are to
the functions of the agency, including       Price Support Division, STOP 0512,             respond, including through the use of
whether the information will have            P.O. Box 2415, Washington, DC 20013;           appropriate automated, electronic,
practical utility; (b) the accuracy of the   telephone (202) 720–7935.                      mechanical, or other technological
agency’s estimate of the burden of the                                                      collection techniques or other forms of
proposed collection of information           SUPPLEMENTARY INFORMATION:                     information technology. Comments
including the validity of the                  Title: Cotton, 7 CFR Part 1427.              should be sent to the Desk Officer for
methodology and assumptions used; (c)          OMB Control Number: 0560–0074.               Agriculture, Office of Information and
ways to enhance the quality, utility and       Expiration Date: January 31, 1998.           Regulatory Affairs, Office of
clarity of the information to be               Type of Request: Revision of a               Management and Budget, Washington,
collected; and (d) ways to minimize the      Currently Approved Information                 DC 20503 and to George A. Stickels,
burden of the collection of information      Collection.                                    Program Specialist, USDA-Farm Service
                         Federal Register / Vol. 61, No. 161 / Monday, August 19, 1996 / Notices                             42831

Agency-Price Support Division, STOP          insolvency. Previous regulations               Signed at Washington, DC, on August 12,
0512, P.O. Box 2415, Washington, DC          allowed producers to file with CCC,          1996.
20013; telephone (202) 720–7935.             form SU–3, Application for Benefit           Bruce R. Weber,
Copies of the information collection         Payment, for nonpayment by a                 Acting Executive Vice President, Commodity
may be obtained from George A. Stickels      processor of producer benefits. The          Credit Corporation.
at the above address.                        1996 Act also eliminates the                 [FR Doc. 96–21071 Filed 8–16–96; 8:45 am]
   All responses to this notice will be      requirement that a processor making an       BILLING CODE 3410–05–P
summarized and included in the request       application for loan, will make
for OMB approval. All comments will          assurances to guarantee that the
also become a matter of public record.       processor will pay the producers of          DEPARTMENT OF COMMERCE
  Signed at Washington, DC, on August 12,    sugar beets or sugarcane the maximum
1996.                                        benefits under the sugar loan program.       Bureau of Export Administration
Bruce R. Weber,                              Previously, processors posting a bond or
                                             other financial assurance were required      Materials Technical Advisory
Acting Executive Vice President, Commodity
Credit Corporation.                          to file with CCC, either form SU–4,          Committee; Notice of Partially Closed
                                             Surety Bond for Sugar Loan Program,          Meeting
[FR Doc. 96–21070 Filed 8–16–96; 8:45 am]
BILLING CODE 3410–05–P
                                             SU–5, Claims Waiver, or SU–6,                   A meeting of the Materials Technical
                                             Agreement to Provide Adequate                Advisory Committee will be held
                                             Financial Assurance. Accordingly,            September 12, 1996, 10:30 a.m., Herbert
Request for Extension and Revision of        eliminating these forms will decrease        C. Hoover Building, Room 1617M–2,
a Currently Approved Information             burden hours.                                14th Street between Constitution &
Collection                                      Estimate of Burden: Public reporting      Pennsylvania Avenues, N.W.,
                                             burden for this information collection is    Washington, D.C. The Committee
AGENCY: Commodity Credit Corporation,        estimated to average 16 minutes per
USDA.                                                                                     advises the Office of the Assistant
                                             response.                                    Secretary for Export Administration
ACTION: Notice and request for                  Respondents: Sugar Processors and         with respect to technical questions that
comments.                                    Producers.                                   affect the level of export controls
SUMMARY: In accordance with the
                                                Estimated Number of Respondents:          applicable to materials and related
Paperwork Reduction Act of 1995, this        30.                                          technology.
notice announces the intention of the           Estimated Number of Responses per
                                             Respondent: 120.                             Agenda
Commodity Credit Corporation (CCC) to
request an extension for and revision to        Estimated Total Annual Burden on          General Session
an information collection currently          Respondents: 65 hours.
                                                                                            1. Opening remarks by the Chairman.
approved in support of the sugar                Topics for comment include but are          2. Presentation of papers or comments
program regulations. Provisions in the       not limited to the following: (a) Whether    by the public.
Federal Agriculture Improvement and          the collection of information is               3. Overview of export control regimes.
Reform Act of 1996 have resulted in a        necessary for the proper performance of        4. Update on Bureau of Export
decrease in burden hours for                 the functions of the agency, including       Administration initiatives.
information collection under the sugar       whether the information will have
                                             practical utility; (b) the accuracy of the   Executive Session
program.
DATES: Comments on this notice must be
                                             agency’s estimate of burden including          5. Discussion of matters properly
received on or before October 18, 1996,      the validity of the methodology and          classified under Executive Order 12958,
to be assured consideration.                 assumptions used; (c) ways to enhance        dealing with U.S. export control
                                             the quality, utility and clarity of the      programs and strategic criteria related
ADDITIONAL INFORMATION: David Wolf,
                                             information to be collected; or (d) ways     thereto.
Agricultural Program Specialist, Price
                                             to minimize the burden of the collection       The General Session of the meeting
Support Division, Farm Service Agency,
                                             of information on those who are to           will be open to the public and a limited
USDA, STOP 0512, P.O. Box 2415,
                                             respond, including through the use of        number of seats will be available. To the
Washington, D.C. 20013–2415;
                                             appropriate automated, electronic,           extent time permits, members of the
telephone (202) 720–4704.
                                             mechanical, or other technological           public may present oral statements to
SUPPLEMENTARY INFORMATION:                   collection techniques or other forms of      the Committee. Written statements may
   Title: Sugar Program, 7 CFR Part 1435.    information technology. Comments             be submitted at any time before or after
   OMB Control Number: 0560–0093.            should be sent to the Desk Officer for       the meeting. However, to facilitate
   Expiration Date: July 31, 1998.           Agriculture, Office of Information and       distribution of public presentation
   Type of Request: Extension and            Regulatory Affairs, Office of                materials to the Committee members,
Revision of a Currently Approved             Management and Budget, Washington,           the materials should be forwarded two
Information Collection.                      D.C. 20503 and to David Wolf, Program        weeks prior to the meeting to the
   Abstract: The information collected       Specialist, Price Support Division, Farm     address below: Ms. Lee Ann Carpenter,
under Office of Management and Budget        Service Agency, USDA, STOP 0512,             TAC Unit/OAS/EA, Room 3886C,
(OMB) Number 0560–0093, as identified        P.O. Box 2415, Washington, D.C. 20013–       Bureau of Export Administration, U.S.
above, is needed to enable FSA to            2415; telephone (202) 720–4704. Copies       Department of Commerce, Washington,
effectively administer the regulations at    of the information collection may be         D.C. 20230.
7 CFR 1435 relating to loans for sugar       obtained from David Wolf at the above          The Assistant Secretary for
beets and sugarcane. The Federal             address.                                     Administration, with the concurrence of
Agriculture Improvement and Reform              All responses to this notice will be      the delegate of the General Counsel,
Act of 1996 (1996 Act) eliminates the        summarized and included in the request       formally determined on March 13, 1996,
protection of sugar producers in the         for OMB approval. All comments will          pursuant to section 10(d) of the Federal
event of processor bankruptcy or other       also become a matter of public record.       Advisory Committee Act, as amended,
42832                    Federal Register / Vol. 61, No. 161 / Monday, August 19, 1996 / Notices

that the series of meetings or portions of     program and strategic criteria related           area, for authority to expand its general-
meetings of the Committee and of any           thereto.                                         purpose zone to include a site in San
Subcommittee thereof, dealing with the            The General Session of the meeting            Bernardino, California, was filed by the
classified materials listed in 5 U.S.C.        will be open to the public and a limited         Board on October 5, 1995 (FTZ Docket
552(c)(1) shall be exempt from the             number of seats will be available. To the        60–95, 60 FR 53583, 10/16/95); and,
provisions relating to public meetings         extent time permits, members of the                 Whereas, notice inviting public
found in section 10 (a)(1) and (a)(3) of       public may present oral statements to            comment was given in the Federal
the Federal Advisory Committee Act.            the Committee. Written statements may            Register and the application has been
The remaining series of meetings or            be submitted at any time before or after         processed pursuant to the FTZ Act and
portions thereof will be open to the           the meeting. However, to facilitate              the Board’s regulations; and,
public.                                        distribution of public presentation                 Whereas, the Board adopts the
  A copy of the Notice of Determination        materials to Committee members, the              findings and recommendations of the
to close meetings or portions of               Committee suggests that you forward              examiner’s report, and finds that the
meetings of the Committee is available         your public presentation materials two           requirements of the FTZ Act and
for public inspection and copying in the       weeks prior to the meeting to the                Board’s regulations are satisfied, and
Central Reference and Records                  following address: Ms. Lee Ann                   that the proposal is in the public
Inspection Facility, Room 6020, U.S.           Carpenter, TAC Unit/OAS/EA Room                  interest;
Department of Commerce, Washington,            3886C, Bureau of Export                             Now, therefore, the Board hereby
D.C. For further information or copies of      Administration, U.S. Department of               orders:
the minutes call (202) 482–2583.               Commerce, Washington, D.C. 20230.                   The application to expand FTZ 50 is
  Dated: August 13, 1996.                         The Assistant Secretary for                   approved, subject to the Act and the
                                               Administration, with the concurrence of          Board’s regulations, including Section
Lee Ann Carpenter,
                                               the delegate of the General Counsel,             400.28.
Director, Technical Advisory Committee Unit.
                                               formally determined on December 22,                Signed at Washington, DC, this 16th day of
[FR Doc. 96–20986 Filed 8–16–96; 8:45 am]      1994, pursuant to section 10(d) of the           July 1996.
BILLING CODE 3510–DT–M                         Federal Advisory Committee Act, as               Robert S. LaRussa,
                                               amended, that the series of meetings or          Acting Assistant Secretary of Commerce for
                                               portions of meetings of the Committee            Import Administration, Alternate Chairman,
Transportation and Related Equipment
                                               and of any Subcommittee thereof,                 Foreign-Trade Zones Board.
Technical Advisory Committee; Notice
                                               dealing with the classified materials              Attest:
of Partially Closed Meeting
                                               listed in 5 U.S.C. 552(c)(1) shall be            John J. Da Ponte, Jr.,
   A meeting of the Transportation and         exempt from the provisions relating to           Executive Secretary.
Related Equipment Technical Advisory           public meetings found in section 10
                                                                                                [FR Doc. 96–21062 Filed 8–16–96; 8:45 am]
Committee will be held September 17,           (a)(1) and (a)(3), of the Federal Advisory
                                                                                                BILLING CODE 3510–DS–P
1996, 9:00 a.m., in the Herbert C.             Committee Act. The remaining series of
Hoover Building, Room 1617M(2), 14th           meetings or portions thereof will be
Street between Constitution &                  open to the public.                              [Order No. 835]
Pennsylvania Avenues, N.W.,                       A copy of the Notice of Determination
Washington, D.C. The Committee                 to close meetings or portions of                 Grant of Authority; Establishment of a
advises the Office of the Assistant            meetings of the Committee is available           Foreign-Trade Zone, Sebring, FL
Secretary for Export Administration            for public inspection and copying in the
                                                                                                  Pursuant to its authority under the Foreign-
with respect to technical questions that       Central Reference and Records                    Trade Zones Act of June 18, 1934, as
affect the level of export controls            Inspection Facility, Room 6020, U.S.             amended (19 U.S.C. 81a–81u), the Foreign-
applicable to transportation and related       Department of Commerce, Washington,              Trade Zones Board (the Board) adopts the
equipment or technology.                       D.C. For further information or copies of        following Order:
                                               the minutes call (202) 482–2583.                    Whereas, by an Act of Congress
General Session
                                                 Dated: August 13, 1996.                        approved June 18, 1934, an Act ‘‘To
  1. Opening remarks by the Chairman
                                               Lee Ann Carpenter,                               provide for the establishment of foreign-
and introductions.
  2. Presentation of public papers or          Director, Technical Advisory Committee Unit.     trade zones in ports of entry of the
comments.                                      [FR Doc. 96–20985 Filed 8–16–96; 8:45 am]        United States, to expedite and
  3. Discussion on renewal of the              BILLING CODE 3510–DT–M                           encourage foreign commerce, and for
Committee charter.                                                                              other purposes,’’ as amended (19 U.S.C.
  4. Update on status of Wassenaar                                                              81a–81u) (the Act), the Foreign-Trade
Arrangement negotiations and plans for         Foreign-Trade Zones Board                        Zones Board (the Board) is authorized to
U.S. implementation.                                                                            grant to qualified corporations the
                                               [Order No. 833]
  5. Update on status of commercial                                                             privilege of establishing foreign-trade
satellite and ‘‘hot section’’ technology       Expansion of Foreign-Trade Zone 50               zones in or adjacent to U.S. Customs
jurisdiction negotiations and on               Long Beach, CA, Area                             ports of entry;
schedule for publication of the                                                                    Whereas, the Sebring Airport
implementing regulations.                        Pursuant to its authority under the Foreign-   Authority (the Grantee) has made
  6. Report on Missile Technology              Trade Zones Act of June 18, 1934, as             application to the Board (FTZ Docket 2–
Control Regime multilateral negotiations       amended (19 U.S.C. 81a–81u), the Foreign-        95, 60 FR 7939, 2/10/95), requesting the
                                               Trade Zones Board (the Board) adopts the         establishment of a foreign-trade zone in
and changes under consideration.
                                               following Order:
                                                                                                Sebring, Florida, adjacent to the Port
Closed Session                                   Whereas, an application from the               Manatee Customs port of entry; and,
  7. Discussion of matters properly            Board of Harbor Commissioners of the                Whereas, notice inviting public
classified under Executive Order 12958,        City of Long Beach, grantee of Foreign-          comment has been given in the Federal
dealing with the U.S. export control           Trade Zone 50, Long Beach, California,           Register, and the Board adopts the
                         Federal Register / Vol. 61, No. 161 / Monday, August 19, 1996 / Notices                                 42833

findings and recommendations of the                 Now, therefore, the Board hereby           Avenue, N.W., Washington, D.C. 20230;
examiner’s report and finds that the             grants to the Grantee the privilege of        telephone (202) 482–4733.
requirements of the Act and the Board’s          establishing a foreign-trade zone,            APPLICABLE STATUTE AND REGULATIONS:
regulations are satisfied, and that              designated on the records of the Board        The Department is conducting these
approval of the application is in the            as Foreign-Trade Zone No. 217, at the         administrative reviews in accordance
public interest;                                 sites described in the application,           with section 751 of the Tariff Act of
   Now, therefore, the Board hereby              subject to the Act and the Board’s            1930, as amended (the Act). Unless
grants to the Grantee the privilege of           regulations, including Section 400.28,        otherwise indicated, all citations to the
establishing a foreign-trade zone,               subject to the standard 2,000-acre            statute and to the Department’s
designated on the records of the Board           activation limit.                             regulations are references to the
as Foreign-Trade Zone No. 215, at the              Signed at Washington, DC, this 7th day of   provisions as they existed on December
site described in the application, subject       August 1996.                                  31, 1994.
to the Act and the Board’s regulations,          Michael Kantor,
including Section 400.28.                                                                      SUPPLEMENTARY INFORMATION:
                                                 Secretary of Commerce, Chairman and
  Signed at Washington, DC, this 26th day of     Executive Officer.                            Background
July 1996.                                       John J. Da Ponte, Jr.,                           On March 5, 1992, March 12, 1993,
Michael Kantor,                                  Executive Secretary.                          and March 4, 1994, the Department
Secretary of Commerce, Chairman and              [FR Doc. 96–21061 Filed 8–16–96; 8:45 am]     published notices in the Federal
Executive Officer.                               BILLING CODE 3510–DS–P                        Register of ‘‘Opportunity to Request
  Attest:                                                                                      Administrative Review’’ (57 FR 7910, 58
John J. Da Ponte, Jr.,                                                                         FR 13583, and 59 FR 10368,
Executive Secretary.                             International Trade Administration            respectively) of the antidumping duty
[FR Doc. 96–21060 Filed 8–16–96; 8:45 am]                                                      order on certain fresh cut flowers from
                                                 [A–301–602]
BILLING CODE 3510–DS–P
                                                                                               Colombia. On May 21, 1992, May 28,
                                                 Certain Fresh Cut Flowers From                1993, and May 2, 1994, in accordance
                                                 Colombia; Final Results of                    with 19 CFR 353.22(c)(1994), we
[Order No. 840]                                  Antidumping Duty Administrative               initiated administrative reviews of this
                                                 Reviews                                       order for more than 500 Colombian
Grant of Authority; Establishment of a                                                         firms covering the periods March 1,
Foreign-Trade Zone, Ocala, FL                    AGENCY:  Import Administration,               1991 through February 29, 1992 (the 5th
                                                 International Trade Administration,           review), March 1, 1992 through
  Pursuant to its authority under the Foreign-   Department of Commerce.                       February 28, 1993 (the 6th review), and
Trade Zones Act of June 18, 1934, as             ACTION: Notice of Final Results of            March 1, 1993 through February 28,
amended (19 U.S.C. 81a–81u), the Foreign-        Antidumping Duty Administrative               1994 (the 7th review), respectively (see
Trade Zones Board (the Board) adopts the
following Order:
                                                 Reviews.                                      57 FR 21643, 58 FR 31010, and 59 FR
                                                                                               22579, respectively).
   Whereas, by an Act of Congress                SUMMARY:    On June 8, 1995, the                 On June 8, 1995, we published a
approved June 18, 1934, an Act ‘‘To              Department of Commerce (the                   notice of Preliminary Results of
provide for the establishment of foreign-        Department) published the preliminary         Antidumping Duty Administrative
trade zones in ports of entry of the             results of three concurrent                   Reviews, Partial Termination of
United States, to expedite and                   administrative reviews of the                 Administrative Reviews, and Notice of
encourage foreign commerce, and for              antidumping duty order on certain fresh       Intent to Revoke Order (In Part)
other purposes,’’ as amended (19 U.S.C.          cut flowers from Colombia. These              (Preliminary Results), wherein we
81a–81u) (the Act), the Foreign-Trade            reviews cover a total of 348 producers        invited interested parties to comment.
Zones Board (the Board) is authorized to         and/or exporters of fresh cut flowers to      See 60 FR 30270 (June 8, 1995). At the
grant to qualified corporations the              the United States for at least one of the     request of interested parties, we held a
privilege of establishing foreign-trade          following periods: March 1, 1991              public hearing on September 8, 1995.
zones in or adjacent to U.S. Customs             through February 29, 1992; March 1,              Although the Preliminary Results
ports of entry;                                  1992 through February 28, 1993; and           indicated that Cultivos Miramonte,
   Whereas, the Economic Development             March 1, 1993 through February 28,            Flores Aurora, the Funza Group, and
Council, Inc. (of Ocala/Marion County)           1994.                                         Industrial Agricola were being
(the Grantee), a Florida non-profit                 We gave interested parties an              considered for revocation, our
corporation, has made application to the         opportunity to comment on the                 recalculations for these final results
Board (FTZ Docket 23–95, 60 FR 27077,            preliminary results. Based on our             indicate that these firms no longer meet
5/22/95), requesting the establishment           analysis of the comments received and         our requirements of not selling the
of a foreign-trade zone at sites in Ocala        the correction of certain clerical errors,    subject merchandise at less than fair
and Marion County, Florida, at and               we have made certain changes for the          value for a period of at least three years
adjacent to the Ocala Regional Airport,          final results. The review indicates the       and that it is not likely that they will
a Customs user fee airport; and,                 existence of dumping margins for              sell the subject merchandise at less than
   Whereas, notice inviting public               certain firms during the review periods.      fair value in the future. See 19 CFR
comment has been given in the Federal            EFFECTIVE DATE: August 19, 1996.              353.25(a)(2). Therefore, we are no longer
Register, and the Board adopts the               FOR FURTHER INFORMATION CONTACT:              considering these firms for revocation.
findings and recommendations of the              Thomas Schauer, J. David Dirstine, or            A number of respondents have asked
examiner’s report and finds that the             Richard Rimlinger, Office of                  that we correct clerical errors contained
requirements of the Act and the Board’s          Antidumping Compliance, Import                in their responses. We have had a
regulations are satisfied, and that              Administration, International Trade           longstanding practice of correcting a
approval of the application is in the            Administration, U.S. Department of            respondent’s clerical errors after the
public interest;                                 Commerce, 14th Street and Constitution        preliminary results only if we can assess
42834                Federal Register / Vol. 61, No. 161 / Monday, August 19, 1996 / Notices

from information already on the record         specific situations using the above          Crop S.A.
that an error has been made, that the          criteria.                                    Cultivos Guameru
error is obvious from the record, and                                                       Cypress Valley
                                               Scope of Review                              Degaflor
that the correction is accurate. See
                                                  Imports covered by these reviews are      Del Monte
Industrial Belts and Components and                                                         Del Tropico Ltda.
Parts Thereof, Whether Cured or                shipments of certain fresh cut flowers       Disagro Ltda.
Uncured, From Italy: Final Results of          from Colombia (standard carnations,          El Dorado
Antidumping Duty Administrative                miniature (spray) carnations, standard       Elite Flowers
Review, 57 FR 8295, 8297 (March 9,             chrysanthemums and pompon                    El Milaro
1992). In light of a recent decision of the    chrysanthemums). These products are          El Tambo
United States Court of Appeals for the         currently classifiable under item            El Timbul Ltda.
                                               numbers 0603.10.30.00, 0603.10.70.10,        Euroflora
Federal Circuit (CAFC), we have
                                               0603.10.70.20, and 0603.10.70.30 of the      Exoticas
reevaluated our policy for correcting                                                       Exotic Flowers
clerical errors of respondents. See NTN        Harmonized Tariff Schedule (HTS). The        Exotico
Bearing Corp. v. United States, Slip Op.       HTS item numbers are provided for            Exportadora
94–1186 (Fed. Cir. 1995) (NTN).                convenience and Customs purposes.            F. Salazar
  In NTN, the CAFC ruled that the              The written description of the scope of      Ferson Trading
Department had abused its discretion by        this order remains dispositive.              Flamingo Flowers
refusing to correct certain clerical errors,      Although we initiated reviews on          Flor y Color
                                               more than 500 firms, we have only            Flores Abaco, S.A.
which the respondent brought to the                                                         Flores Agromonte
Department’s attention after the               reviewed a total of 348 firms for at least
                                               one of the three review periods. We          Flores Ainsus
preliminary results of review.                                                              Flores Alcala Ltda.
Specifically, the CAFC found that the          initiated reviews for a large number of      Flores Calichana
application of our test for determining        firms which could not be located in          Flores Cerezangos
whether to correct clerical errors in          spite of our requests for assistance from    Flores Corola
NTN was unreasonable for the following         diverse sources such as the Floral Trade     Flores de Guasca
reasons: (1) The requirement that the          Council (the FTC), Asocolflores, the         Flores de Iztari
record disclose the error essentially                                          ´
                                               American Embassy in Bogota, and the          Flores de Memecon/Corinto
                                               U.S. Customs Service. Therefore, we          Flores de la Cuesta
precludes corrections of clerical errors                                                    Flores de la Hacienda
made by a respondent; (2) draconian            were unable to conduct administrative
                                               reviews for these firms. We shall assess     Flores de la Maria
penalties are inappropriate for clerical                                                    Flores del Cielo Ltda.
errors because clerical errors are by their    duties for those unlocatable firms that      Flores del Cortijo
nature not errors in judgment but              have not previously been reviewed at         Flores del Tambo
merely inadvertencies; (3) in NTN’s            the ‘‘all others’’ rate of 3.10 percent.     Flores el Talle Ltda.
case, a straightforward mathematical           Assessment of duties, as well as cash        Flores Flamingo Ltda.
adjustment was all that was required, so       deposits, on entries from firms which        Flores Fusu
correction of NTN’s errors would               we were not able to locate but that had      Flores Gloria
                                               been previously reviewed will be             Flores la Cabanuela
neither have required beginning anew                                                        Flores la Pampa
nor have delayed issuance of the final         collected at the most recent cash deposit
                                               rate applicable to them. The unlocatable     Flores la Union/Santana
results of review.                                                                          Flores Montecarlo
   As a result of the NTN decision, we         firms are:                                   Flores Palimana
are modifying our policy regarding the         Achalay                                      Flores Saint Valentine
correction of alleged clerical errors. We      Agricola Altiplano                           Flores San Andres
will accept corrections of clerical errors     Agricola de Occidente                        Flores Santana
under the following conditions: (1) The        Agricola del Monte                           Flores Sausalito
                                               Agricola Megaflor Ltda.                      Flores Sindamanoi
error in question must be demonstrated         Agrocaribu Ltd.                              Flores Suasuque
to be a clerical error, not a                  Agro de Narino                               Flores Tenerife Ltda.
methodological error, an error in              Agroindustrial Madonna, S.A.                 Flores Urimaco
judgment, or a substantive error; (2) the      Agroindustrias de Narino Ltda.               Flores Violette
Department must be satisfied that the          Agropecuaria la Marcela                      Florexpo
corrective documentation provided in           Agropecuaria Mauricio                        Floricola
support of the clerical error allegation is    Agrocosas                                    Florisol
reliable; (3) the respondent must have         Agrotabio Kent                               Florpacifico
availed itself of the earliest reasonable      Aguacarga                                    Flower Factory
                                               Alcala                                       Flowers of the World/Rosa
opportunity to correct the error; (4) the      Alstroflores Ltda.                           Four Seasons
clerical error allegation, and any             Amoret                                       Fracolsa
corrective documentation, must be              Andalucia                                    Fresh Flowers
submitted to the Department no later           Ancas Ltda.                                  Garden and Flowers, Ltda.
than the due date for the respondent’s         A.Q.                                         German Ocampo
administrative case brief; (5) the clerical    Arboles Azules Ltda.                         Granja
error must not entail a substantial            Carcol Ltda.                                 Gypso Flowers
revision of the response; and (6) the          Classic                                      Hacienda La Embarrada
respondent’s corrective documentation          Clavelez                                     Hacienda Matute
                                               Coexflor                                     Hana/Hisa Group
must not contradict information                Color Explosion                                Flores Hana Ichi de Colombia Ltda.
previously determined to be accurate at        Consorcio Agroindustrial Columbiano S.A.       Flores Tokai Hisa
verification. In the Analysis of                 ‘‘CAICO’’                                  Hernando Monroy
Comments Received section of this              Cota                                         Hill Crest Gardens
notice, we have evaluated company-             Crest D’or                                   Horticultura de la Sasan
                     Federal Register / Vol. 61, No. 161 / Monday, August 19, 1996 / Notices                                42835

Horticultura Montecarlo                     Department determines on a case-by-          Bali Flowers (7)
Illusion Flowers                            case basis what is BIA.                      Bloomshare Ltda. (7)
Indigo S.A.                                    For these final results of reviews, in    Bogota Flowers (5,6,7)
Industria Santa Clara                       cases where we have determined to use        Ciba Geigy (5,6,7)
Industrial Terwengel, Ltda.                                                              Claveles Tropicales de Colombia (7)
                                            total BIA, we applied two tiers of BIA       Colony International Farm (5,6,7)
Innovacion Andina, S.A.
Inversiones Bucarelia
                                            depending on whether the companies           Conflores Ltda. (5,6,7)
Inversiones Maya, Ltda.                     attempted to or refused to cooperate in      Cultivos el Lago (5,6,7)
Inversiones Playa                           these reviews. When a company refused        Flora Bellisima (5,6,7)
Inversiones & Producciones Tecnicas         to provide the information requested in      Flores Alfaya (5,6,7)
Inversiones Silma                           the form required, or otherwise              Flores Arco Iris (5,6,7)
Inversiones Sima                            significantly impeded the Department’s       Flores Balu (7)
Jardin de Carolina                          review, the Department assigned to that      Flores Catalina (7)
Jardines Choconta                                                                        Flores de Fragua (7)
                                            company first-tier BIA, which is the         Flores de la Pradera Ltda. (5,6,7)
Jardines Darpu                              higher of (1) the highest rate found for
Jardines de Timana                                                                       Flores del Pradro (7)
                                            any firm for the same class or kind of       Flores el Majui (7)
Jardines Natalia Ltda.
Jardines Tocarema
                                            merchandise in the same country of           Flores Guaicata Ltda. (5,6,7)
J.M. Torres                                 origin in the less-than-fair-value (LTFV)    Flores Magara (7)
Karla Flowers                               investigation or any prior administrative    Flores Naturales (7)
                                            review; or (2) the highest calculated rate   Flores Petaluma Ltda.(5,6,7)
Kingdom S.A.
                                            found in the specific period of review       Flores Rio Grande (7)
La Colina
                                                                                         Flores Santa Lucia (5,6,7)
La Embairada                                for any firm for the same class or kind      Flores Tejas Verdes (5,6,7)
La Flores Ltda.                             of merchandise in the same country of        Fribir Ltda. (7)
La Floresta                                 origin. When a company has                   Groex S.A. (5,6)
Laura Flowers                               substantially cooperated with the            Hacienda Susata (7)
L.H.                                        Department’s request for information         Inpar (5,6,7)
Loma Linda                                                                               Interflora Ltda. (5,6,7)
Loreana Flowers
                                            but failed to provide the information
                                            required in a timely manner or in the        Inter Flores (7)
M. Alejandra                                                                             Internacional Flowers (7)
Mauricio Uribe                              form required, the Department assigned
                                                                                         Invernavas (5,6,7)
Merastec                                    to that company second-tier BIA, which       Inversiones del Alto (7)
Morcoto                                     is the higher of either: (1) The highest     Inversiones Nativa Ltda. (5,6,7)
My Flowers Ltda.                            rate ever applicable to the firm for the     Jardin (5,6,7)
Nasino                                      same class or kind of merchandise from       Jardines del Muna (5,6,7)
Olga Rincon                                 either the LTFV investigation or a prior     La Florida (5,6,7)
Otono                                       administrative review or, if the firm has    Naranjo Exportaciones e Importaciones (7)
Pinar Guameru                               never been investigated or reviewed, the     Plantas Ornamentales de Colombia S.A. (7)
Piracania                                                                                Rosas y Flores (5,6,7)
Prismaflor
                                            all others rate from the LTFV
                                            investigation; or (2) the highest            Rosicler Ltda. (5,6,7)
Reme Salamanca                                                                           Sabana Flowers (5,6,7)
Rosa Bella                                  calculated rate in the specific review for   Sunset Farms (5,6,7)
Rosales de Suba Ltda.                       the class or kind of merchandise for any     Tempest Flowers (5,6,7)
Rosas y Jardines                            firm from the same country of origin.
Rose                                        See Antifriction Bearings (Other Than           At the time of our preliminary results
San Ernesto                                 Tapered Roller Bearings) and Parts           of review, we determined that MG
San Valentine                               Thereof From France, et al.; Final           Consultores, Flores Canelon, Flores la
Sarena                                      Results of Antidumping Duty                  Valvanera, Flores del Hato,
Select Pro                                  Administrative Reviews, Partial              Agroindustrial del Riofrio, Jardines de
Shila                                                                                    Chia, Queen’s Flowers de Colombia, and
Solor Flores Ltda.
                                            Termination of Administrative Reviews,
                                            and Revocation in Part of Antidumping        Jardines Fredonia were sufficiently
Starlight                                                                                related to each other to warrant
Sunbelt Florals                             Duty Orders, 60 FR 10900, 10907 (Feb.
Susca                                       28, 1995); see also Allied-Signal            collapsing their sales and production
The Rose                                    Aerospace Co. v. United States, 996          information into the Queen’s Flowers
Tomino                                      F.2d 1185 (Fed. Cir. 1993).                  Group. See Preliminary Results at
Tropical Garden                                Because a number of firms failed to       30271. Based on information which we
Tropiflor                                   respond to our requests for information,     requested and received after the
Villa Diana                                 we have used the highest rate ever           preliminary results, we have determined
Zipa Flowers                                found in any segment of this proceeding      that twelve other firms (Flores Jayvana,
Best Information Available                  to establish their margins. This rate,       Flores el Cacique, Flores Calima, Flores
                                            which was calculated for the Bojaca          la Mana, Flores el Cipres, Flores el
  Section 776(c) of the Act provides that   Group in the 5th administrative review,      Roble, Flores del Bojaca, Flores el
whenever a party refuses or is unable to    is 76.60 percent for all three               Tandil, Flores el Ajibe, Flores Atlas,
produce information requested in a          administrative reviews. The firms to         Floranova, and Cultivos Generales) are
timely manner and in the form required,     which we have applied first-tier BIA         also related to the members of the
or otherwise significantly impedes an       rates and the review periods for which       Queen’s Flowers Group within the
investigation, the Department shall use     these firms are receiving a BIA rate (as     meaning of section 771(13) of the Act.
best information otherwise available        indicated in parentheses) are as follows:    We determine that the type and degree
(BIA). In deciding what to use as BIA,                                                   of relationship is so significant that
                                            Agricola Jicabal (5,6,7)
19 CFR 353.37(b) provides that the          Agricola Malqui (5,6,7)                      there is the strong possibility of price
Department may take into account            Agricola Monteflor Ltda. (7)                 manipulation among all 20 of these
whether a party refused to provide          Agrobloom Ltda. (7)                          companies. See our response to
requested information. Thus, the            Agrokoralia (5,6,7)                          Comment 26, below. Therefore, we are
42836               Federal Register / Vol. 61, No. 161 / Monday, August 19, 1996 / Notices

assigning a single rate for all 20           los Alisos, Colflores, Flores Estrella,           basis in order: (1) to use actual price
companies for these final results.           Flores Mountgar, and Flor Colombia                information that is often available only
However, not all of the companies of         S.A., because these companies were                on a monthly basis, (2) to account for
this group responded to our                  unable to respond to our questionnaire.           large sales volumes, and (3) to account
questionnaire. Further, there exist          In Certain Fresh Cut Flowers From                 for perishable product pricing practices.
serious deficiencies in the responses        Colombia; Final Results of Antidumping            See, e.g., Fourth Review at 15160.
submitted by the group. See                  Duty Administrative Review, and Notice               In calculating the U.S. price (USP), we
Department’s Position regarding              of Revocation of Order (in Part), 59 FR           used purchase price when sales were
Comment 27, below. Therefore, we             15159, 15173 (March 31, 1994) (Fourth             made to unrelated purchasers in the
determine that the members of the            Review), we stated:                               United States prior to the date of
Queen’s Flowers Group have                     ‘‘In choosing an appropriate BIA * * * we       importation, or exporter’s sales price
significantly impeded our reviews and        focused on the following factors and how          (ESP) when sales were made to
have used as uncooperative, or first-tier,   they applied to the * * * companies at the        unrelated purchasers in the United
BIA the highest rate for any company for     time they received our questionnaires (in this    States after the date of importation, both
this same class or kind of merchandise       case, March 4, 1992): the extent to which the     pursuant to section 772 of the Act.
from this or any prior segment of the        companies continued to operate, including            We calculated purchase prices based
proceeding.                                  current production and export levels, the         on the packed price to the first
                                             number of persons employed by the firms,          unrelated purchaser in the United
   One firm, Agricola Usatama,
                                             the disposition of the companies’ assets, the
responded to our original questionnaire,     relationship of the companies to other
                                                                                               States. The terms of purchase price sales
but failed to respond to our requests for    exporters continuing in business, the current                               ´
                                                                                               were either f.o.b. Bogota or c.i.f. Miami.
supplemental information. We                 legal status of the bankruptcy, liquidation, or   We made deductions, where
determine that this company has not          reorganization proceedings, and the potential     appropriate, for foreign inland freight,
cooperated with our requests for             for reorganization (including the likelihood      air freight, brokerage and handling, U.S.
information. Therefore, we have applied      that the companies would resume production        customs duties, and return credits.
a first-tier BIA rate to this firm for the   and exports).’’                                      We calculated ESP for sales made on
seventh review.                                 The record shows that Agricola de los          consignment or through a related
   Although Santa Helena submitted a         Alisos, Colflores, Flores Estrella, Flores        affiliate based on the packed price to the
response to our supplemental                 Mountgar, and Flor Colombia S.A. are              first unrelated customer in the United
questionnaire, this firm failed to provide   no longer in business. In accordance              States. We made adjustments, where
information allowing us to correct           with the standards enunciated above,              appropriate, for foreign inland freight,
serious deficiencies in its cost             we have determined that these                     brokerage and handling, air freight, box
responses. Therefore, we were unable to      companies were unable to respond to               charges, credit expenses, returned
use its cost data for comparison             our questionnaire and have assigned a             merchandise credits, royalties, U.S.
purposes. However, because this firm         second-tier BIA rate to these firms.              duty, and either commissions paid to
responded to all sections of our                In certain situations, we found it             unrelated U.S. consignees or U.S. selling
questionnaire and substantially              necessary to use partial BIA for a                expenses of related U.S. consignees.
cooperated with our request for              number of firms to correct more limited
                                                                                               Foreign Market Value
information, we have applied a               response deficiencies. In a supplemental
cooperative, or second-tier, BIA rate to     questionnaire, Flores de Aposentos                   Section 773(a)(1) of the Act requires
sales made by this company.                  reported aggregate carnation sales which          the Department to compare sales in the
   We conducted verification of              the firm knew were destined to be sold            United States with viable home market
responses submitted by the Agrodex           to the United States through resellers.           sales of such or similar merchandise
Group, Cultivos Miramonte, Floralex,         Because the company did not separately            sold in the home market, or a third-
Flores Aurora, Flores Depina, the Funza      identify these sales in its questionnaire         country market, in the ordinary course
Group, Flores de la Vereda, Flores           response as required by the                       of trade. Although some companies
Juanambu, the Florex Group, the              questionnaire, thereby prohibiting us             reported either viable home or third-
Guacatay Group, the HOSA Group,              from calculating accurate margins, as             country markets for sales of particular
Industrial Agricola, the Santana Group,      BIA we applied the higher of the highest          flower types, consistent with our
Senda Brava, and the Tinzuque Group.         rate ever applicable to the company or            discussion in the Fourth Review (at
We encountered serious difficulties in       the highest calculated rate in the same           15160–61), we have concluded that
attempting to verify the responses           review to the particular sales involved.          home market and third-country sales are
submitted by Flores de la Vereda and            In the case of Las Amalias, we found           not an appropriate basis for FMV. See
Floralex. With respect to Flores de la       that, for certain U.S. sales transactions         our response to Comment 7, below.
Vereda, we could not successfully verify     in the 5th period of review (POR), the               Accordingly, in calculating FMV, we
completeness and accuracy of the sales       firm had reported sales prices to a               used constructed value as defined in
data. With respect to Floralex, we were      related importer instead of sales prices          section 773(e) of the Act for all
unable to verify the accuracy of the         to the first unrelated U.S. customer as           companies. The constructed value
constructed value information                required by our questionnaire. This               represents the average per-flower cost
submitted by this firm. Because Flores       prohibits us from calculating margins in          for each type of flower during each
de la Vereda and Floralex submitted          accordance with the Act, so, as BIA, we           review period, based on the costs
responses and have otherwise                 have applied the higher of the highest            incurred to produce that type of flower
participated in all segments of the          rate ever applicable to Las Amalias or            during each review period.
proceeding, we have determined that          the highest calculated rate in the same              The Department used the materials,
they both have substantially cooperated      review to these particular transactions.          production, and general expenses
with our requests for information and                                                          reported by respondents. Because we
applied a second-tier BIA rate to these      United States Price                               have determined that both the home
firms for all three reviews.                   Pursuant to section 777A of the Act,            market and third countries are either not
   Also, we are applying a second-tier       we determined that it was appropriate             viable or do not provide an appropriate
BIA rate to sales made by Agricola de        to average U.S. prices on a monthly               basis for FMV for all companies, we
                     Federal Register / Vol. 61, No. 161 / Monday, August 19, 1996 / Notices                               42837

used the U.S. market as a surrogate for       monthly inflation figures published by       action, which could include
determining the amount of general             the Colombian government. See                reinstatement in the order and referral
expenses to add to constructed value.         Memorandum from Michael Martin and           to the U.S. Customs fraud division.
This figure included U.S. selling             William Jones to Richard Rimlinger              The FTC contends that the
expenses which were incurred by               (February 20, 1996).                         Department’s decision to revoke FCG in
affiliated U.S. firms (see our response to       Many of the responding companies          the Fourth Review established
comment 8, below). The per-unit               reported an ‘‘income’’ offset that they      additional criteria for revocation and
average constructed value was based on        claimed was created along with this          that the Department should apply the
the quantity of export quality flowers        revaluation. We disallowed this offset as    same criteria in the current reviews
sold to the United States. We have            it is a change in the firm’s equity and      before making a decision to revoke any
considered non-export quality flowers         not income that is actually realized. For    of the companies. The FTC argues that
(also called culls) produced in               further discussion of this matter, see our   the Department’s preliminary
conjunction with export quality flowers       response to Comment 11, below. For           determination to revoke these
to be similar to scrap in that the culls      companies that failed to provide this        companies was faulty because ‘‘(1) there
may or may not have recoverable value.        data, or that provided inadequate data,      is no evidence that purchases from other
Therefore, we offset revenue from the         we made the adjustment to their              producers are insignificant, and (2)
sales of culls against the cost of            response based on monthly inflation          there is no basis on which to conclude
producing the export quality flowers.         figures published by the Colombian           that suppliers neither knew or should
See our response to Comment 24, below.        government. See Memorandum from              have known the destination of their
   For firms whose actual general             Michael Martin and William Jones to          sales’’ (Floral Trade Council’s Public
expenses exceeded the statutory               Richard Rimlinger (February 20, 1996).       Case Brief, page 3, August 11, 1995).
minimum of 10 percent of the cost of                                                       The FTC contends that Colombian
                                              Analysis of Comments Received
materials and fabrication, we used the                                                     growers often purchase flowers from
actual general expenses to calculate             We invited interested parties to          other producers for export to the United
constructed value pursuant to section         comment on our preliminary results and       States, and that, because the
773(e)(1)(B)(i) of the Act. For firms         intent to revoke the order in part. We       merchandise is not marked, there
whose actual general expenses were less       received case and rebuttal briefs from       continues to be a danger that companies
than the statutory minimum of 10              the FTC, petitioner in this proceeding,      with dumping margins will route their
percent of the cost of materials and          the Asociacion Colombiana de                 flowers through companies with no
fabrication, we used the statutory            Exportadores de Flores (Asocolflores),       margins. The FTC asks that the
minimum of 10 percent. Because                an association of Colombian flower           Department reconsider its reliance on
imputed credit was included in                producers representing many of the           the ‘‘knowledge’’ factor in determining
constructed value, we reduced the             respondents in this case, and various        whether revocation candidates are likely
actual interest expense reported in the       exporters and importers of fresh cut         to become conduits for growers subject
companies’ financial statements to            flowers from Colombia. On September          to the order. The FTC contends that the
prevent double-counting.                      8, 1995, we held a public hearing.           knowledge test is impractical and
   Because all respondents reported           General Issues Raised by the Floral          subject to manipulation, and suggests
actual profit less than eight percent of      Trade Council                                that, as a precondition for revocation,
the sum of the cost of production and                                                      Colombian growers requesting
actual expenses, the Department used             Comment 1: The FTC argues that the        revocation should certify that they will
the eight-percent statutory minimum for       Department should not revoke the order       not ship flowers grown by other
profit pursuant to section 773(e)(1)(B)(ii)   with respect to companies that are or        Colombian growers, on penalty of
of the Act. We added U.S. packing to          may be reselling flowers grown by other      reinstatement in the order.
constructed value. Adjustments to             producers. The FTC asserts that,                Asocolflores argues that there is no
constructed value were made for credit        although it argued in the 1990–91            factual basis for the FTC to conclude
and indirect selling expenses.                review (fourth review) that revocation       that companies eligible for revocation
   According to the 1993 edition of           for the Flores Colombianas Group (FCG)       would serve as conduits for other
Doing Business in Colombia, published         was inappropriate because of the             producers. Asocolflores requests that
by Price Waterhouse, there has been a         possibility of other growers routing their   the Department take the same position
change in the Colombian generally             flowers through FCG, the Department          as it did in the Fourth Review, and
accepted accounting practices (GAAP),         disagreed and revoked FCG (Fourth            analyze the facts on record in
effective January 1, 1992. This change        Review). The FTC reiterates the              determining whether there is any basis
required firms to revalue certain             Department’s rationale in the Fourth         for the FTC’s speculation. Asocolflores
financial statement accounts in order to      Review that, because the group’s             points out that some of the companies
reflect the effects of inflation              purchases from other producers were an       eligible for revocation did not even
experienced during each financial             insignificant percentage of its total U.S.   purchase flowers from other producers.
reporting period. As part of this             sales, FCG had consistently stated that      For those companies that did purchase
revaluation, firms must restate their         its suppliers had no foreknowledge that      flowers from other producers,
fixed asset accounts and their                the purchased flowers were destined for      Asocolflores contends that the
corresponding depreciation expense.           any specific export market, and the          purchases were occasional and that the
We asked respondents to provide               Department had no evidence that the          Department previously has recognized
additional data to allow us to adjust         company purchased flowers at below its       that such limited sales and purchases do
their data to reflect this change in          suppliers’ cost of production, revocation    not constitute evasion of the order.
Colombian GAAP for our final results.         was appropriate. The FTC reminds the         Finally, Asocolflores contends that the
Most of the companies provided this           Department that the agency informed          FTC has provided no valid basis for the
data. For companies that failed to            the public that, if it received              Department to reconsider its
provide this data, or that provided           information that FCG is serving as a         longstanding practice requiring the
inadequate data, we made the                  conduit for other Colombian flower           producer to know or have reason to
adjustment to their response based on         growers, it would take appropriate           know that its sales are destined for the
42838               Federal Register / Vol. 61, No. 161 / Monday, August 19, 1996 / Notices

United States before they are reported as    must be deducted from ESP as                    the related U.S. consignee (section
U.S. sales.                                  circumstance-of-sale adjustments.               771(13) of the Act). We make
   Department’s Position: Section               In its rebuttal brief, Asocolflores states   appropriate deductions to the price at
353.25(a)(2) of our regulations states       that the FTC’s arguments ignore the             which the merchandise is sold in the
that we may revoke an order in part if       Department’s practice in this case and          United States to the first unrelated party
we conclude that (1) a producer or           in Final Determination of Sales at Less         to determine ‘‘the net amount returned
reseller has not sold subject                Than Fair Value: Fresh Cut Roses from           to the exporter.’’ S. Rep. No. 16, 67th
merchandise at less than fair value for      Colombia, 60 FR 6980 (February 6,               Cong., 1st Sess. at 12 (1921). Thus, we
a period of at least three consecutive       1995) (Roses), of deducting actual              deduct the U.S. indirect selling
years; (2) it is not likely that the         expenses rather than intracompany               expenses incurred by the related
producer or reseller will sell the subject   transfers. Asocolflores contends that the       consignee as these are payments to
merchandise at less than fair value in       court cases and statutory provisions            unrelated third parties that affect the
the future; and (3) the producer or          cited by the FTC in support of                  exporter’s net return. However,
reseller agrees, in writing, to their        deducting commissions paid to related           payments from a producer to its related
immediate reinstatement in the order if      parties are irrelevant in this case             U.S. consignee at issue are
we conclude, under 19 CFR 353.22(f),         because the Department collapsed the            intracompany transfers that compensate
that they have sold the subject              consignee and supplier and treated the          the related consignee for selling
merchandise below FMV.                       two parties as a single entity for              expenses incurred by the consignee in
   For these final results, after            purposes of determining ESP.                    the United States. Because these selling
recalculating the margins for Cultivos       Asocolflores states that when a supplier        expenses are already deducted under
Miramonte, Flores Aurora, the Funza          pays a commission to a consignee which          our current methodology, the deduction
Group, and Industrial Agricola, we           the Department has collapsed with the           of the intracompany ‘‘commission’’
determine that these firms are no longer     supplier, the payment is merely an              would result in double-counting. See,
eligible for revocation. In the cases of     intracompany transfer of funds and not          e.g., Certain Hot-Rolled Lead and
Cultivos Miramonte, Flores Aurora, and       an actual expense. Asocolflores                 Bismuth Carbon Steel Products From
Industrial Agricola, there has not been      contends that, by deducting only the            the United Kingdom; Final Results of
a period of at least three consecutive       selling and operating expenses incurred         Antidumping Duty Administrative
years without sales at less than fair        by the U.S. consignee, USP is calculated        Review, 60 FR 44009, 44010 (Aug. 24,
value. In the case of the Funza Group,       on the basis of the actual sales prices         1995). Thus, we make no deductions for
there was a period of three consecutive      received from unrelated parties and the         these payments pursuant to section
years (1991–93) in which the firm did        actual selling expenses incurred by all         772(e)(1).
not sell subject merchandise at less than    related entities. Asocolflores argues that,        In addition, we disagree with the FTC
fair value (i.e., the fourth, fifth, and     because the supplier pays the                   that the rationale of Timken requires us
sixth periods of review). However, the       commission to the importer to cover the         to deduct related-party commissions.
Group did have sales at less than fair       importer’s indirect selling expenses and        The Timken court held that the
value in the last period reviewed (i.e.,     to provide a profit, deducting the related      statutory deduction for commissions did
the seventh period of review) and,           importer’s commission from USP                  not require us to also deduct the profit
therefore, the Group has not                 (instead of deducting the importer’s            earned by a U.S. subsidiary. See Timken
demonstrated that it is not likely to sell   selling expenses) would have the effect         v. United States, 630 F. Supp. 1327,
subject merchandise at less than fair        of deducting the importer’s profit from         1342 (CIT 1986). The Timken court did
value in the future. Therefore, we are       ESP. Asocolflores contends that this            not state that we were required to
not revoking the order with respect to       would be unlawful according to the              deduct related-party commissions.
any firms.                                   Timken decision, where the Court of             Further, as stated in Roses, the
   Comment 2: The FTC argues that the        International Trade (CIT) observed that         difference between a ‘‘commission’’
Department overstated ESP prices by          the statute does not call for the               paid to a related U.S. consignee and the
not deducting commissions paid to            deduction of profits in ESP calculations.       related consignee’s selling and operating
related U.S. consignees. The FTC             Asocolflores alleges that the FTC has           expenses is equal to the related U.S.
contends that where commissions paid         attempted to confuse the issue by               consignee’s profit. As there is no
to related U.S. consignees reflect arm’s-    requesting that commissions be                  statutory provision providing for the
length commissions and are directly          deducted as a direct selling expense            deduction of profits in ESP situations,
related to sales, the Department should      when found to be at arm’s length.               we have made no deductions for these
deduct the commissions as direct selling     Further, Asocolflores contends that             amounts. See Roses at 6993.
expenses. In support of deducting these      whether a commission is at arm’s length            Finally, we disagree with the FTC that
commissions, the FTC argues the              has nothing to do with the commission           these intracompany transfers should be
following: (1) the language of section       being an actual expense incurred by the         deducted as a circumstance-of-sale
772(e)(1) of the Act requires the            exporter.                                       adjustment. As noted above, we already
Department to deduct both U.S.                  Department’s Position: We disagree           deduct that portion of the transfer price
commissions and indirect selling             with the FTC. For the final results, we         that represents selling expenses paid by
expenses from ESP, whether or not the        have continued to treat commissions             the related U.S. consignee. The
U.S. consignee is related to the exporter;   paid to related consignees as                   remaining portion—profit—does not
(2) the rationale of Timken Co. v. United    intracompany transfers.                         qualify as a circumstance-of-sale
States, 630 F. Supp. 1327 (CIT 1986)            Section 772(c) of the Act defines ESP        adjustment.
(Timken), requires the Department to         as the ‘‘the price at which the                    Comment 3: The FTC asserts that
deduct related-party commissions; and        merchandise is sold or agreed to be sold        failing verification is a basis for first-tier
(3) even under the assumption that           in the United States, before or after the       BIA and argues that the Department was
commissions need not always be               time of importation, by or for the              too lenient by applying second-tier BIA
deducted under section 772(e)(1),            account of the exporter * * *.’’                to firms that failed verification. The FTC
commissions that are arm’s length in         (emphasis added). The statute defines           points out that Flores de la Vereda
nature and directly related to the sales     ‘‘exporter’’ to include the producer and        presented a revised questionnaire
                    Federal Register / Vol. 61, No. 161 / Monday, August 19, 1996 / Notices                                   42839

response during verification that            Department calculated an estimated ICC         through an unrelated consignee. In the
contained substantial changes to the         for respondents selling through related        latter situation, we would not calculate
data it had submitted originally. The        parties who did not report ICC. Based          and deduct ICC because: (1) Flowers are
FTC also notes that the Department           on this precedent, the FTC contends            shipped immediately upon production;
found various errors in its verifications    that the Department must calculate ICC         and (2) our imputed credit expense
of Flores de la Vereda and Floralex.         for fresh cut flowers because they have        calculation accounts for financing costs
   Flores de la Vereda and Floralex,         a longer life span than roses.                 associated with the period during which
Colombian flower producers and                  Asocolflores states that the                the merchandise is in transit and held
respondents in this case, contend that,      Department has never deducted ICC              by the unrelated U.S. consignee (i.e.,
when determining which tier of BIA to        from ESP in this case, and contends that       imputed credit covers the financing
apply, the Department’s practice is to       it would be inappropriate to do so now.        costs from the time the merchandise is
take into consideration whether a            Furthermore, Asocolflores contends that        shipped to the United States until the
respondent willfully refuses to              ICC ‘‘generally’’ is included in the           producer receives payment for the
participate in an administrative review,     reported imputed credit expenses               merchandise). Where the foreign
or whether it attempts to cooperate but      because this amount is calculated from         manufacturer sells the flowers through a
is unable to comply with every request       the date of shipment from Colombia to          related U.S. consignee, our imputed
during verification. They argue that         the date of receipt of payment.                credit expense calculations do not cover
discrepancies in the verification of         Asocolflores states that, to the extent        the period during which the
Floralex do not suggest that the             ICC are not included in the imputed            merchandise is in transit and held by
company tried to obstruct the                credit expenses, they are insignificant        the U.S. consignee. On these
verification or that it was uncooperative.   and would not affect margin                    transactions our calculation of imputed
These respondents also point out that        calculations. Asocolflores also cites          credit covers the financing costs for the
cases to which the FTC refers do not         Micron Technology, Inc. v. United              period between shipment from the U.S.
support its assertion; therefore, they       States, Slip Op. 95–107 at 16–17 (CIT          consignee to the first unrelated party
contend, the FTC’s argument that             June 12, 1995), arguing that, because the      and receipt of payment. Thus, in order
Floralex should be assigned first-tier       Department did not request that                to capture all the financing costs on ESP
BIA is wrong.                                companies provide the inventory                transactions where the foreign
   Department’s Position: We agree with      carrying period, it cannot apply an            manufacturer sells the flowers through a
the respondents. The Department took         adverse assumption to fill in the              related U.S. consignee, it may be
into consideration all deficiencies found    information needed to calculate this           appropriate to calculate ICC for the
at verification for Flores de la Vereda      expense.                                       period during which the flowers are in
and Floralex. However, the fact that the        Department’s Position: We disagree          transit and held by the U.S. consignee.
questionnaire response was revised for       with the FTC. For the final results, we           For purposes of calculating USP and
one company and various errors were          have not calculated an ICC for ESP             FMV, section 777A of the Act allows the
found for both companies does not give       sales.                                         Department to disregard ‘‘adjustments
sufficient reason, in this instance, to         The Act does not contain a specific         which are insignificant in relation to the
assign first-tier BIA. In determining        provision for deducting ICC from USP.          price or value of the merchandise.’’ For
what to apply as BIA, our regulations        Rather, we deduct ICC pursuant to              calculating FMV, our regulations define
provide that we may take into account        section 772(e)(2) of the statute, which        ‘‘insignificant’’ as having either an ad
whether a party refuses to provide           requires us to deduct from ESP                 valorem effect of less than 0.33 percent
requested information or in some way         ‘‘expenses generally incurred by or for        of FMV for individual adjustments, or
impedes the proceedings. See 19 CFR          the account of the exporter in the             1.0 percent of FMV for any group of
353.37(b). First-tier BIA is applied when    United States in selling identical or          adjustments. See 19 CFR 353.59(a)
a company refuses to provide                 substantially identical merchandise.’’         (1994). The regulations do not define
information requested, or significantly      The CAFC recently upheld our decision          ‘‘insignificant’’ for adjustments
impedes the Department’s proceedings.        to deduct ICC pursuant to this provision       involving USP. Regarding section 777A,
See, e.g., Antifriction Bearings (Other      of the statute. See Torrington Co. v.          the CIT has held that ‘‘the statute
Than Tapered Roller Bearings) and            United States, 44 F.3d 1572, 1580 (Fed.        provides not only that Commerce is the
Parts Thereof from France, 60 FR 10900,      Cir. 1995).                                    appropriate authority to determine
10907 (February 28, 1995). In past              Because ICC are not found in the            whether an adjustment is insignificant,
administrative reviews, it has been the      books of the respondents, we must look         but also that it is Commerce that has the
Department’s practice to apply second-       at what the financing cost would have          discretion to determine whether or not
tier BIA when a company has                  been. Our practice in calculating ICC for      to disregard an insignificant
substantially cooperated with the            ESP sales is to calculate the cost in two      adjustment.’’ SKF USA Inc. v. United
Department’s request for information. In     segments: (1) for the period during            States, 876 F. Supp. 275, 281 (CIT
this case, even though Flores de la          which the merchandise is held by the           1995).
Vereda and Floralex failed certain           foreign manufacturer; and (2) for the             For the preliminary results, we did
aspects of verification, the companies       period during which the merchandise is         not calculate an ICC for any respondent.
substantially cooperated with all of our     in transit or held by the U.S. affiliate. If   Furthermore, we did not request the ICC
requests for information. Therefore, we      we were to calculate and deduct ICC on         information in our questionnaires. An
have applied second-tier BIA to these        ESP sales in this case, the methodology        estimate of respondents’ inventory
companies.                                   would need to be slightly different            periods is available in the public report
   Comment 4: The FTC argues that the        because there are two types of ESP             used in the Roses investigation.
Department should calculate and deduct       transactions.                                  However, respondents claim that this
inventory carrying cost (ICC) from ESP          The first type of ESP transaction is        public report overstates the inventory
for those respondents that did not           where the foreign manufacturer sells the       period for the subject merchandise in
provide such a calculation in their          flowers through a related U.S.                 this case. Therefore, we could obtain
responses. In support of this argument,      consignee. The second type is where the        accurate ICC information only by
the FTC refers to Roses, in which the        foreign manufacturer sells the flowers         sending out supplemental
42840               Federal Register / Vol. 61, No. 161 / Monday, August 19, 1996 / Notices

questionnaires to each individual            otherwise fails to provide information       records in these reviews suggest that the
company.                                     requested by the Department, or fails        facts and circumstances of third-country
   Based on the respondents’ claim that      verification.                                sales have changed. The FTC contends
any ICC adjustment would be                     Department’s Position: We disagree        that, because the Department neither
insignificant, we ran tests to determine     with FTC. A company will request             collected nor analyzed third-country
the relative importance of the ICC           revocation when it believes it will          sales prices, its conclusions are
adjustment in this case. See                 satisfy the requirements set forth in 19     unsubstantiated.
Memorandum from Holly A. Kuga to Joe         CFR 353.25(a)(2). Conversely, a                 The FTC claims that the analysis in
A. Spetrini (November 8, 1995). For the      withdrawal of a request for revocation       the Department’s notice of preliminary
Agrodex Group and the Claveles               merely indicates that a company no           results is flawed. The FTC claims that
Colombianos Group, we calculated a           longer believes the regulatory               the Department’s position that the
per-unit ICC, based on the number of         requirements will be satisfied. Because      market patterns in third-country and
days in inventory information in the         there is no record evidence indicating       U.S. markets are different is not
public report used in Roses, and added       that companies that withdrew their           supported by evidence on the record.
this amount to each group’s related          request for revocation would have failed     Also, the FTC argues that the
importer’s indirect selling expenses and     verification, we have no basis to assign     Department’s focus on differences in
deducted the sum from USP. These             these companies rates based on BIA.          holidays is misplaced in that a
companies are two of the largest firms          Comment 6: The FTC contends that          comparison of U.S. prices during a
under review in total sales of subject       the Department should not assign the         major holiday period to prices in a third
flowers to the United States. In addition,   ‘‘all others’’ rate to companies that        country would be to respondents’
the majority of their sales were made        could not be located by the Department       advantage, because prices in the United
through a related U.S. consignee. The        and that have been assigned higher           States during peak flower-giving
effect of the ICC adjustment on the          company-specific margins in previous         holidays are relatively greater than
companies’ weighted-average margins          reviews.                                     during non-peak periods, which is when
during the 5th, 6th, and 7th reviews            Asocolflores agrees that companies        the FTC contends dumping is occurring.
ranged from an increase of 0.00 percent      with pre-existing rates should continue      Therefore, the FTC concludes that, in
to 0.11 percent. As a result of these        to receive those rates, whether they are     comparing third-country markets to the
tests, we conclude that the ICC              lower or higher than the ‘‘all others’’      U.S. market, the only relevant inquiry is
adjustment is insignificant. Further, we     rate.                                        whether there are foreign holidays
conclude that use of this insignificant         Department’s Position: Pursuant to        where price levels peak in foreign
adjustment would be inappropriate in         section 751(a) of the Act, the               markets at a time when there is no
these reviews, given the burdens of          Department conducts administrative           comparable U.S. holiday. The FTC
obtaining the necessary information to       reviews of particular companies ‘‘if a       states that, without the relevant
make an accurate ICC calculation at this     request for such a review has been           transaction data on the record, there is
stage of the reviews.                        received.’’ If no request for review is      no basis on which to test this concern.
   Comment 5: The FTC argues that the        received for a company, the Department       The FTC also contends that, in any case,
Department should presume that               ‘‘will instruct the Customs Service to       U.S. holidays and third-country
respondents who withdrew their               assess antidumping duties * * * at           holidays mostly do coincide, and it cites
requests for revocation prior to             rates equal to the cash deposit of, or       a list of holidays it attached to its
verification would have failed               bond for, estimated antidumping duties.      February 18, 1994 submission in
verification. This action, the FTC           * * *’’ 19 CFR 353.22(e) (1994). In          support of this contention.
contends, is a transparent attempt to        other words, ‘‘in cases where a company         With respect to the Department’s
avoid scrutiny by the Department.            makes cash deposits on entries of            preliminary decision that there are
Therefore, in the FTC’s view, the            merchandise subject to antidumping           differences in market patterns, the FTC
Department must assume that an audit         duties, and no administrative review of      argues that flower producers in third
of these firms’ data would expose the        those entries is requested, the cash         countries do not face the same
inaccuracy of their responses. Therefore,    deposit rate automatically becomes that      competitive pricing pressure that flower
the FTC asserts, the Department must         company’s assessment rate for those          producers in the United States do, and
assign a margin based on a first-tier BIA    entries.’’ Federal-Mogul Corp. v. United     the differences in price volatility can be
rate to sales by these firms.                States, 822 F. Supp. 782, 787–88 (CIT        attributed in no small part to the pricing
   Asocolflores counters the FTC’s           1993). In this case, an administrative       practices of Colombian flower
argument by claiming that there is no        review was requested for the                 producers, which, according to the FTC,
legal or factual basis for applying BIA to   unlocatable firms in question. However,      control roughly two-thirds of the U.S.
companies that withdraw requests for         because we were unable to review these       market. The FTC also argues that the
revocation. Asocolflores maintains that      firms, the results are the same as if no     notion that U.S. customers only
there were several reasons why               review had been requested for these          purchase flowers during special
respondents withdrew their requests for      firms. Therefore, for the final results,     occasions is belied by import statistics
revocation: certain companies                unlocatable companies with pre-existing      generated by the Department, and that
determined that they were no longer          rates will be assessed at those rates. The   U.S. customers buy flowers throughout
eligible for revocation after reviewing      cash deposit rates for these companies       the year, not just on special occasions.
their responses; other companies could       will remain the same.                           The FTC objects to the Department’s
not afford the expense of undergoing            Comment 7: The FTC argues that,           consideration of price correlation on the
verification; others were deterred by the    because the Department did not collect       grounds that rejecting third-country
uncertainty created when the                 current third-country price data, its        sales because they do not follow the
Department issued questionnaires             decision to reject third-country sales as    same patterns as in the U.S. market
indicating it might use third-country        the basis for FMV is flawed. The FTC         undermines the purpose of the
profits in its margin analysis.              claims that the Department based its         antidumping law. The FTC contends
Asocolflores argues that BIA can be          decision in these reviews on data            that in any case where dumping exists,
used only when a company refuses or          collected in a past review, and that the     there will be a negative correlation in
                     Federal Register / Vol. 61, No. 161 / Monday, August 19, 1996 / Notices                                 42841

prices between the U.S. and the foreign       section 353.48(b) of our regulations         European markets, which comprise the
markets. The FTC concludes by stating         states a preference for use of third-        primary third-country markets, and the
that the Department’s resort to CV does       country sales over constructed value ‘‘if    United States in these PORs are still too
not comport with its consideration of         adequate information is available and        great to justify use of third-country
the lack of price correlation because no      can be verified.’’                           prices.
correlation between constructed value           We have used constructed value for            We find that there is still great price
and the U.S. market will necessarily          Colombian flowers since the second           volatility in the United States which
exist.                                        administrative review of this                does not exist in third-country markets.
   Asocolflores argues that the               proceeding. We did this for three            We find that significant differences in
circumstances in third-country markets        reasons. First, we determined that prices    the demand patterns between the
have not changed to such a degree to          in third-country markets were                markets continue to exist, which are
warrant reversing prior practice in this      negatively correlated to prices in the       explained largely by the differences in
case, and that, although the Department       United States. We determined that this       holidays and end-uses of subject
did not collect sales data, the               negative correlation was caused by a         merchandise.
Department did collect other data which       variety of factors, including the greater       We find that the differences in
it used in reaching its conclusions.          volatility and sporadic nature of the        volatility between third-country markets
Specifically, Asocolflores states that the    U.S. market, differing peak price periods    and the United States are largely
FTC itself has provided pricing               (holidays), and Colombian producers’         attributable to differences in demand
information demonstrating that prices in      relative lack of access to European          patterns. We have observed that demand
the United States and third countries         markets. Second, because of the relative     and prices in the United States fluctuate
lacked correlation, peaked at different       lack of access to European markets,          much more widely than in European
times, and were more stable in third          Colombian producers generally sold to        markets, and that demand and prices
countries during the PORs.                    Europe only during peak months. Third,       correlate strongly in the United States.
   Asocolflores claims that the FTC has       because the merchandise in question is       That is, prices and demand are both
provided no new legal analysis or             highly perishable, most producers were       high at the same time and are both low
factual information beyond what has           found to plan the vast majority of their     at the same time. This indicates that, in
previously been submitted and rejected        production for sale to the U.S. market,      the United States, supply moves to meet
by both the Department and the CIT.           and generally sold excess production to      demand, rather than the other way
Asocolflores also takes issue with the        markets that they may not have planned       around. In a demand-driven market, the
FTC’s argument that the Department’s          to sell in. This created a ‘‘chance          quantities supplied move to meet
focus on U.S. holidays is misplaced.          element’’ that could cause price             demand, which explains why prices and
Asocolflores argues that the Department       differences that were unrelated to           quantities are both high at certain times
properly focused not just on U.S.             dumping. See Certain Fresh Cut Flowers       and why both are low at other times. By
holidays or just foreign holidays, but        From Colombia; Final Results of              contrast, in a supply- driven market,
rather on the differences in U.S. and         Antidumping Duty Administrative              lower prices would lead to greater
foreign flower-giving holidays and the        Review, 55 FR 20491, 20492 (May 17,          quantities purchased by consumers, and
consequent distortion that may result         1990) (Second Review). This decision         higher prices would cause fewer
when a peak period in one market is           was subsequently upheld by the CIT.          products purchased. There is no
compared to a non-peak period in a            See Floral Trade Council v. United           evidence of low prices coinciding with
different market. Asocolflores further        States, 775 F. Supp. 1492, 1495–98 (CIT      high demand or high sales quantities, or
contends that the FTC’s list of holidays      1991).                                       vice versa. Therefore, we infer that the
is meaningless, because the FTC has not         We disagree with the FTC’s argument        United States is largely a demand-
limited its list to flower-giving holidays;   that we cannot decide this matter based      driven market. We conclude that
rather it has listed all holidays in both     on the existing record. We also disagree     demand exerts a considerably stronger
markets.                                      with petitioners that we were required       influence on prices in the U.S. market
   Asocolflores claims that, while the        to collect actual third-country sales data   than in Europe.
FTC urges the Department not to focus         prior to our decision to reject third-          With regard to holidays, we observe
exclusively on pricing trends or market       country prices. While we did not collect     that differences in holidays are not in
patterns, it is precisely these factors       third-country sales data from                and of themselves a reason for rejecting
which compelled the Department to             respondents, we did collect information      third-country sales, but are a significant
reject third-country sales as a basis of      about third-country markets. We              factor in explaining why there is no
FMV in the previous reviews.                  received narrative responses to              apparent correlation between prices in
Asocolflores contends that, in light of       questions regarding third-country            third-country markets and the United
the above arguments, there is not a basis     markets, ranging from general questions      States. Further, we are not convinced by
for reversing an established case             about market conditions to questions         the FTC’s claims that flower-buying
precedent upheld by the CIT.                  about specific companies’ practices,         holidays in third-country markets and
   Department’s Position: For purposes        experiences, and average profit levels.      the United States largely coincide. For
of these final results, we have continued     We also received price data for standard     example, the FTC argues that All Souls’
to base FMV on constructed value              carnations for 1991 from the FTC for the     Day, a European flower-buying holiday,
because we remain convinced that              United States and for the Aalsmeer           coincides with Halloween. This is true,
third-country sales would be an               market in Europe. The record shows no        but because Halloween is not a holiday
inappropriate basis for FMV.                  change in the differences in market          for which people in the United States
   Section 773(a)(2) of the Act allows the    volatilities, no change in the differences   typically purchase flowers, observing
Department to base FMV on constructed         in holidays, and no change in the            that the two holidays coincide does not
value where FMV ‘‘cannot be                   differences in end-use of the                demonstrate that third-country and U.S.
determined’’ using home market or             merchandise. Based on the information        flower-buying holidays coincide.
third-country sales. Where, as here,          we collected for these PORs, we                 The FTC is correct that flowers are
home market sales are inadequate to           determine that the differences in            bought throughout the year in the
serve as a basis for foreign market value,    prevailing market conditions between         United States and not just on special
42842               Federal Register / Vol. 61, No. 161 / Monday, August 19, 1996 / Notices

occasions. We do not conclude                   Comment 8: The FTC argues that, if        violate established case precedent.
otherwise. The fact remains, however,        the Department chooses not to use third-     Respondents assert that they have relied
that there are certain flower-buying         country sales as the basis of FMV, it        upon this methodology and the
holidays, such as Valentine’s Day and        should use actual third-country profits      Department cannot now change its
Mother’s Day, for which demand for           and general expenses in calculating CV.      methodologies without compelling
subject merchandise increases                The FTC contends that CV is intended         reasons, citing Shikoku Chemicals Corp.
markedly. In contrast, third-country         as a substitute for a price-based FMV,       v. United States, 795 F. Supp. 417, 421
market customers more often buy              and the profit and general expenses          (CIT 1992).
flowers for everyday use, such as            used in calculating CV should be equal          Department’s Position: We disagree
decoration. See, e.g., Cienfuegos Group      to the profit and general expenses on        with petitioner. Section 773(e)(1) of the
section A response (May 16, 1994),           those prices that are the basis for FMV.     Act states that CV shall include ‘‘an
Flores de la Sabana S.A. supplemental        The FTC observes that the Department         amount for general expenses and profit
response (April 15, 1994), Flores Tiba       collected and verified third-country         equal to that usually reflected in sales
S.A. section A response (May 16, 1994),      profit data, and that using the statutory    of merchandise of the same general class
and HOSA Group section A response            minimum does not reflect the price           or kind as the merchandise under
(May 16, 1994). This was true when we        discrimination that exists between           consideration which are made by
originally decided that third-country        markets. The FTC argues that the             producers in the country of exportation,
prices were an inappropriate basis for       requirements for using profit on third-      in the usual commercial quantities and
FMV and was a factor we cited in that        country sales are met in this case, citing   in the ordinary course of trade . . .’’
review in our decision. See Second           Aramid Fiber Formed of Poly-Phenylene        Section 353.50(a) of our regulations
Review at 20492. From this, we               Terephthaliamide from the Netherlands,       elaborates on this requirement by noting
conclude that, for the most part, the        59 FR 23684, 23686 (1994), as an             that CV will include general expenses
end-use of subject merchandise               example of a case in which the               and profit ‘‘usually reflected in sales of
significantly differs between the United     Department calculated profits on the         merchandise by producers in the home
States and third-country markets.            basis of third-country sales.                market country * * *’’
                                                Asocolflores argues that using third-        In this case, we are not using home
   The FTC, in its February 18, 1994
                                             country profit and general expenses for      market prices for FMV because home
submission, provided third-country
                                             the purposes of CV would effectively         market flower sales are either not viable
market price data which, according to
                                             create a surrogate for third-country         or outside the ordinary course of trade.
the FTC, demonstrated that the
                                             sales. Asocolflores contends that the        See, e.g., Second Review at 20492. We
correlation between prices in third-
                                             Department has recognized this               are not using third-country prices for
country markets and the United States
                                             principle and rejected the same              FMV because, as discussed in our
was sufficiently strong to justify
                                             argument in Roses at 6994, stating that,     response to Comment 7, an unusual fact
reversing our decision. We examined
                                             ‘‘where there was a viable, but              pattern applies in this case which
the price data submitted by the FTC                                                       would cause comparisons to third-
                                             dissimilar third-country market, [the
covering 1991 and found that third-                                                       country prices to be distortive.
                                             Department] used U.S. surrogates and
country and U.S. prices moved in                                                             Because we rejected the prices of the
                                             the statutory eight percent profit
opposite directions in approximately                                                      home market and third countries for
                                             because [it has] determined that third-
half of the months of the year. This                                                      purposes of FMV, we find it necessary
                                             country markets do not provide an
indicates that there is neither a strong                                                  to reject the general expenses and
                                             appropriate basis for foreign market
positive nor negative correlation                                                         profits associated with these sales. Just
                                             value.’’
between prices in the United States and         Asocolflores argues that many of the      as home market and third-country
third-country markets. Our analysis of       same objections to the use of third-         prices will not provide an accurate
correlation is inconclusive and,             country sales apply to the use of third-     measurement of dumping in this case,
therefore, we turned to other factors in     country profit. For example,                 the general expenses and profit
our analysis, which are described above.     Asocolflores notes, because prices in the    associated with these sales are not of the
   Finally, we disagree with the FTC’s       U.S. and third-country markets are           amount ‘‘usually reflected in sales of
statement that there will be negative        incomparable due to timing and               merchandise of the same general class
price correlations wherever dumping          volatility differences, the profit margins   or kind as the merchandise under
occurs. Dumping can exist in any             will not be comparable. Asocolflores         consideration.’’ Thus, we decline to use
situation regardless of price correlation.   also notes that, because sales in third-     these amounts for purposes of CV.
For example, USP and FMV could move          country markets are not made in all             We disagree with the FTC that our
together, i.e., be perfectly correlated,     months, peak periods are not balanced        position in Aramid Fiber compels us to
and there would still be dumping as          by off-peak periods. Moreover,               use third-country selling expenses and
long as FMV was consistently greater         Asocolflores contends, using third-          profit in this case. Aramid Fiber used
than USP.                                    country profits in an annual CV is           viable third-country markets as a basis
   While we do find that, since our          further distortive because it is being       for FMV. See Aramid Fiber at 23685.
determination in the Second Review,          used as a comparison to monthly-             Here, we are unable to use third-country
Colombian producers have gained              averaged USPs. Asocolflores argues that      sales as the basis of FMV.
greater access to third-country markets      the FMV that the FTC would have the             For the final results, then, we have
and our analysis of the correlation          Deparment create is not representative       used the eight-percent statutory
between U.S. and third-country prices        of prices in any market because it would     minimum profit. See Alhambra Foundry
during the PORs was inconclusive, none       combine a general cost of production         Co., Ltd. v. United States, 685 F. Supp.
of the other factors that affected our       with U.S. selling expenses, U.S.             1252, 1259–60 (CIT 1988) (upholding
decision, including those that explain       imputed credit expenses, third-country       use of statutory eight-percent minimum
the lack of an apparent correlation of       general expenses, and third-country          profit where no viable home market or
prices, has changed significantly enough     profits.                                     third country market exists). In our
to warrant our abandoning CV as the             Finally, Asocolflores concludes that      preliminary results, we stated that we
basis for FMV.                               using third-country profits would            used respondents’ actual profit for
                    Federal Register / Vol. 61, No. 161 / Monday, August 19, 1996 / Notices                                 42843

merchandise of the same general class        is less important than whether they are      related to flower production, and we
or kind where this amount was greater        allowed.                                     have disallowed the cull revenue offset
than the statutory minimum. However,            Department’s Position: We agree with      for the reasons outlined above.
for these final results, we determine that   the FTC that items such as cuttings (and        Comment 10: The FTC argues that the
there are no cases in which a                similar materials) are not created in the    Department should disallow any
respondent’s home market profit              process of flower production, as are         interest income offsets to interest
exceeded eight percent. Therefore, use       culls, but rather are inputs or materials    expenses where the interest income was
of the statutory minimum profit is           used in producing flowers or can be a        either long-term or not related to
appropriate.                                 separate product line in itself. Also, the   production. The FTC also argues that
   For general expenses, it is the           sale of services does not relate to the      the Department should disallow offsets
Department’s practice to use U.S. selling    cost of producing flowers and therefore      to interest expenses that are not interest
expenses as a surrogate when home            should not be allowed as an offset. The      income such as prompt payment
market and third-country market sales        fact that a grower may subsidize its         discounts, monetary correction, or
form an inappropriate basis for FMV.         flower production with revenue earned        exchange rate gains.
See Final Determination of Sales at Less     from other operations is not relevant to        Asocolflores does not contest the
Than Fair Value: Tubeless Steel Disc         the dumping calculation and may              FTC’s argument in general, but
Wheels from Brazil, 52 FR 8947, 8948         disguise dumping that is occurring.          maintains that some of the revenues or
(March 20, 1987); Final Determination        Therefore, we only allow revenues from       discounts mentioned by the FTC should
of Sales at Less Than Fair Value;            operations directly related to flower        be allowed as an offset to cost, whether
Certain Granite Products from Italy, 53      production and/or sales to offset the        in the interest income section of the
FR 27187, 27191 (July 19, 1988).             cost of producing subject merchandise.       Lotus spreadsheet or elsewhere.
Furthermore, our questionnaire               Further, these items must be properly        Asocolflores specifically describes the
instructed respondents that ‘‘if home        itemized and tied to the production          situations for Flores San Juan and the
market or third-country sales are not        and/or sales of flowers. See Notice of       Sabana Group. Asocolflores also
being used to establish foreign market       Final Determination of Sales at Less         maintains that, contrary to the FTC’s
value, provide selling expenses on U.S.      Than Fair Value: Certain Carbon Steel        statements, monetary income is a
sales of the subject flower type.’’          Butt-Weld Pipe Fittings From India, 60       permissible offset to financial expense.
   For the preliminary results and in        FR 10545, 10547 (Feb. 27, 1995).             Asocolflores claims that, in Gray
prior reviews of this order, we used only    Therefore, for companies that reported       Portland Cement and Clinker from
those U.S. selling expenses incurred in      such revenues as an aggregate part of        Mexico, 58 FR 25803, 25806 (1993)
Colombia for purposes of calculating a       their cull sales revenue we have             (Comment 4) (Portland Cement), the
surrogate value for selling expenses.        disallowed the entire offset, unless the     Department expressly allowed monetary
However, we have revised this figure in      companies provided a breakdown of the        correction income resulting from
these final results to include all U.S.      various revenues they reported in the        monetary position gains as an offset to
selling expenses, regardless of whether      cull revenue line item elsewhere in their    financial expense.
these expenses were incurred by the          responses.                                      Department’s Position: We agree in
flower grower, its offshore invoicer, or        We recognize that our decision            part with the FTC. Only short-term
its related U.S. importer. This revision     represents a departure from our past         interest income directly related to
allows us to utilize the entire universe     practice in this case. See Fourth Review     operations may be used as an offset to
of U.S. selling expenses as the surrogate,   at 15168. However, we have reexamined        interest expense. See Notice of Final
regardless of any internal corporate         this issue and we conclude that,             Determination of Sales at Less Than
decision as to whether certain selling       generally, cuttings, while an input into     Fair Value: Small Diameter Circular
expenses should be incurred in               the production of flowers, are a distinct    Seamless Carbon and Alloy Steel,
Colombia or transferred to an offshore       industry. Many companies are                 Standard, Line and Pressure Pipe From
invoicer or an affiliated U.S. importer.     exclusively in the business of selling       Italy, 60 FR 31981, 31991 (June 19,
   Comment 9: The FTC argues that the        cuttings. If a company returned cuttings     1995).
Department should not allow                  to the supplier and received a credit for       In Portland Cement, we included
respondents to offset CV by the amount       those cuttings, then it should report the    monetary gains and losses in the
of revenue on cuttings, other materials,     cost of cuttings minus the rebate. If a      calculation of net financing expenses for
or services sold in Colombia. The FTC        company produced or bought cuttings          the respondent because, in that case, the
argues that these items are not              which it later sold, it should report only   monetary correction under Mexican
production outputs, as are culls, but        the cost of those cuttings used in the       GAAP pertained solely to the holding of
rather production inputs.                    production of subject merchandise. To        monetary assets and liabilities. Given
   Asocolflores responds that the            allow a company to report the revenues       these circumstances, not including
revenues described are an appropriate        it receives on sales of cuttings not used    monetary gains and losses in the
offset to cost, and claims that the          in flower production would be                calculation of net financing expenses
Department has allowed such revenue          equivalent to offsetting cost by the         would not have accounted for the effects
as an offset to cost in prior reviews.       amount of profit received on nonsubject      of Mexico’s significant inflation during
Asocolflores states that materials such      merchandise, which we do not allow. If       the review period in question and
as cuttings are part of growers’’ costs,     a company had broken out its cost data       would have distorted the firm’s
and argues that, if a grower has more        and cull revenue data in such a way that     corporate financial expenses and
cuttings than necessary and sells some       we could correct it, then we would do        income. See Portland Cement at 25806.
of them, the revenue from those cuttings     so. However, where companies did not         In the case of Colombian GAAP, this
should be allowed as an offset to costs.     provide sufficient detail of their cost      restriction does not apply. See our
Asocolflores contends that including         response to permit us to make such           response to Comment 11, below,
these revenues in the cull revenues is       corrections, we have assumed as partial      concerning our treatment of inflation
the easiest way to report them in the        BIA that all costs associated with           adjustments in this case.
Department’s Lotus spreadsheet, and          cuttings, other materials, and services         With respect to Asocolflores’
that where these revenues are reported       reported by the companies are not            reference to San Juan, we do not permit
42844               Federal Register / Vol. 61, No. 161 / Monday, August 19, 1996 / Notices

interest revenue in excess of interest      to both the costs and income reported in      possible legal basis for including
expenses to offset other costs. See our     the profit and loss statement.                inflation adjustments is that (1) they are
response to Comment 32, below.                 Asocolflores argues that three separate    required by Colombian GAAP, and (2)
Finally, with respect to Asocolflores’      adjustments are required to perform the       they are not distortive. Asocolflores
reference to Sabana, the firm reduced its   inflation adjustments required by             contends that, if the Department makes
financial expenses by an amount for         Colombian tax laws. First, Asocolflores       adjustments, they must reflect the full
discounts which it received from            states that the value of assets must be       adjustments required in Colombia.
suppliers. However, the firm did not        adjusted to reflect the hypothetical          According to Asocolflores, any
provide the requisite information for us    increase in value due to inflation.           adjustment made to just depreciation
to properly assign these discounts to       Asocolflores explains that this amount        and amortization is distortive from the
costs of the applicable flower types. See   is recorded as a debit to the asset           perspective of cost accounting and
our response to Comment 41, below.          account and a credit to a ‘‘monetary          should therefore be disregarded.
Therefore, we have not adjusted for         correction’’ account that all companies       Asocolflores further contends that, by
these discounts.                            are required to establish in their books,     calculating CV on a monthly basis, the
   Comment 11: The FTC argues that the      and the monetary correction account is        Department is already ensuring that it
Department should use respondents’          a profit and loss statement account           does not distort the dumping
reported inflation adjustments as           which ‘‘corrects’’ the monetary value of      calculations by mismatching costs and
reflected in their financial statements,    non-monetary assets, liabilities, and         revenues. Asocolflores contends that the
but should not allow respondents’           equity for inflation. Second,                 Department’s precedent in Roses, where
claimed offsetting adjustment for           Asocolflores asserts, the upward              it recognized the unfairness of
monetary correction. The FTC argues         adjustment to the value of the asset          comparing monthly prices with an
that failure to include the inflation       leads to an upward adjustment to              annual CV calculated using full-year
adjustment would distort production         depreciation expense. Asocolflores            inflation adjustments and adjusted for
costs for purposes of the dumping           explains that the companies record            inflation only through the middle of the
analysis. The FTC argues that excluding     depreciation expense calculated at            period so as to estimate a midpoint
the inflation adjustment would result in    historical cost plus the adjustment due       average cost, contradicts the intended
costs which are not reflective of current   to inflation as a debit to the depreciation   approach in this case of using full
price levels and thus produces an           expense account and a credit to the           period inflation adjustments in a
                                            accumulated depreciation account.             comparison with unadjusted monthly
improper matching of revenues and
                                            Third, Asocolflores states that the           sales prices.
expenses. The FTC cites Roses in
                                            companies adjust the accumulated                 In rebuttal, the FTC argues that the
support of its argument. The FTC
                                            depreciation account for inflation.           Department should reject Asocolflores’
further notes that certain respondents
                                            Therefore, Asocolflores asserts, the          July 21, 1995 submission as untimely.
have included monetary correction
                                            amount of the adjustment is debited to        The FTC argues that the submission
income as cull revenue or other
                                            the monetary correction account and           contained new factual information,
financial income.
                                            credited to the accumulated                   which was submitted after the
   Asocolflores argues that the             depreciation account.                         preliminary results of review. The FTC
Department should not make a one-              Asocolflores explains that companies       argues that the Department should not
sided adjustment for inflation to           generally responded to the Department’s       allow an offset for monetary correction
depreciation and amortization costs.        questionnaire by providing the data           income that does not ultimately benefit
Asocolflores states that the Department     concerning both the depreciation              flower producers and is not real income.
did not gather actual inflation             expense (cost) and monetary correction        The FTC also argues that, although the
adjustment data from the companies in       (income) effects of the inflation             Department has accepted an income
Roses, but performed its own incorrect      adjustment to depreciable/amortizable         offset in the treatment of monetary
calculations and made only a partial        assets, resulting in an increase of           correction in Portland Cement and
adjustment. According to Asocolflores,      depreciation or amortization expense.         Cookware from Mexico, this acceptance
the Department should disregard the         Asocolflores states that companies also       does not compel the Department to
inflation adjustments and calculate CV      reported the monetary correction they         make an offset in these reviews. Finally,
using a company’s actual, unadjusted        are required to recognize on their books      the FTC contends that, if the
costs. If the Department does use this      as a result of the difference between         Department not use respondents’
data, Asocolflores contends it must take    required inflation adjustments to asset       supplemental inflation adjusted costs, it
into consideration not only the increase    value and accumulated depreciation.           should ensure that all monetary
in depreciation and amortization            Asocolflores explains that the                correction income included in
expenses, but also the monetary             companies generally reported this             respondents’ original responses has
correction resulting from the inflation     monetary correction as an offset to costs     been excluded from the database.
adjustments to depreciable assets.          as ‘‘cull revenue,’’ since this was the          Department’s Position: We disagree
Respondents assert that the Department      only line on the Lotus spreadsheet on         with respondents. For these final
allowed monetary correction offsets in      which such income could be reported           results, we have used respondents’
Portland Cement and Porcelain-on-Steel      and still allow the Department to use         revised depreciation and amortization
Cookware from Mexico, 55 FR 39186           the spreadsheet to calculate CV               expense figures, which have been
(September 25, 1990) (Cookware from         properly.                                     adjusted for the effects of inflation, in
Mexico), and there is no basis for             Asocolflores argues that, in cases         calculating CV. However, we have
disregarding it here. Asocolflores          involving non-hyperinflationary               excluded the amount of monetary
contends that the Department needs to       economies such as Colombia, the               correction income that respondents
focus not just on the adjustments to        Department ordinarily does not make           claimed as an offset to production costs.
non-monetary depreciable or                 any adjustments to depreciation or            With respect to the FTC’s argument that
amortizable assets which result only in     amortization expenses for inflation.          we should reject Asocolflores’ July 21,
changes to a company’s balance sheet as     Asocolflores cites Portland Cement to         1995 submission as untimely, we
it did in Roses, but also on adjustments    support its contention that the only          disagree. We requested this information
                     Federal Register / Vol. 61, No. 161 / Monday, August 19, 1996 / Notices                                    42845

in our supplemental questionnaire of           leading up to and including the PORs.         a hedge against inflation, neither
June 21, 1995 concerning inflation             Therefore, the effect of compounded           creating nor generating a loss in asset
adjustment.                                    annual inflation results in a distortion of   value.
   In general, CV includes amounts for         historical depreciation. More                    The purpose of requiring an
depreciation of fixed assets that are used     specifically, the compounded annual           adjustment to fixed assets under
to produce the subject merchandise.            inflation results in an understatement of     Colombian GAAP (or under the GAAP
Most often, these fixed assets are             costs. In order to correct this distortion,   of any country which accounts for
recorded for normal accounting                 the Department asked respondents to           inflation) is to measure the gains and
purposes at their historical cost (i.e., the   submit revised CV figures reflecting          losses on monetary assets and liabilities,
original purchase price of the assets).        depreciation expense amounts adjusted         such as cash or accounts payable, which
Consequently, amounts incurred for             for inflation. The inclusion of inflation-    are exposed to inflation. The Colombian
depreciation reflect the historical cost of    corrected depreciation amounts in CV is       tax law adjusts for high inflation by
the underlying fixed assets spread             consistent with past Departmental             requiring a form of price-level
systematically over the assets’ useful         practice, as demonstrated in                  accounting, a method that revalues fixed
lives. In an inflationary economic             Ferrosilicon from Venezuela, Roses from       assets to provide constant currency, as
environment, however, depreciating             Colombia and Roses from Ecuador. The          opposed to historical cost information.
fixed assets based on historical costs         Department’s methodology corrects                The mechanics of the inflation
fails to adequately measure the cost of        understated depreciation and                  adjustment for fixed assets require
those assets relative to the sales income      amortization costs, which results from        companies to increase or ‘‘debit’’ fixed
that results from the merchandise they         significant inflation compounded over         assets by an amount equal to the year’s
produce. For this reason, in many              some extended time period. This               inflation index. At the same time, as
countries that experience high inflation,      approach is also consistent with              part of the accounting entry, a
GAAP requires that fixed assets be             Colombian tax law, which requires             corresponding ‘‘credit’’ is recorded to a
indexed (i.e., increased) annually to          firms to revalue certain financial            monetary correction account, which has
reflect the increasing nominal value of        statement accounts to reflect the effects     the effect of increasing financial
those assets as stated in prevailing           of inflation experienced in each              statement income for the same year.
currency units.                                financial reporting period. See               This is the income that respondents
   The Department also recognizes the          Memorandum from Holly Kuga to                 maintain is somehow generated by their
effects of inflation on costs in its           Joseph Spetrini, dated November 8,            fixed assets. There is no merit, however,
antidumping analysis. Specifically, in         1995.                                         to respondents’ claim that the
cases involving respondents whose                 As noted above, in antidumping cases       Department is making only a ‘‘one-
home market economies are                      involving countries whose economies           sided’’ adjustment by ignoring the
hyperinflationary (which the                   are continually marked by high inflation      ‘‘credit’’ to income. The ‘‘debits’’ to the
Department considers to be annual              (but not hyperinflation), the Department      fixed asset (e.g., the flower plants) and
inflation greater than 50 percent), the        has adjusted depreciation expenses            the ‘‘credit’’ to financial income are in
Department resorts to the use of               reported by respondents while allowing        no way related for purposes of
monthly replacement costs. See, e.g.,          other costs, such as materials and labor,     calculating CV. As stated above, the
Final Determination of Sales At Less           to be recorded at their current, nominal      revaluation of flower plants and other
Than Fair Value: Ferrosilicon From             values. This has been done in                 fixed asset costs to account for inflation
Brazil, 59 FR 732 (January 6, 1994).           recognition of the fact that, over time,      does not, in and of itself, create income.
   In other instances, where the home          consistently high inflation rates greatly     Further, it does not create income
market economies, while not reaching           affect the nominal value of fixed assets      related to flower production.
the Department’s annual                        that are recorded for accounting                 We disagree with respondents’
hyperinflationary threshold during the         purposes at historical costs. At the same     assertion that it is inappropriate to focus
period of investigation (POI) or the POR,      time, however, because the price level        on adjusting CV for the effects of
nonetheless exhibit significant inflation      changes in these cases do not reach           inflation on depreciation and
from year to year, the Department has          those defined by the Department’s             amortization expense. That is precisely
adjusted respondents’ depreciation             hyperinflation threshold, this practice       what the Department did in Ferrosilicon
expenses in order to permit a more             purposely ignores other inflation effects     from Venezuela, where the Department
appropriate matching of costs and prices       that can occur within the POI or POR.         used a depreciation expense figure
based on equivalent currency units. See,       Such effects are numerous and can             which was based upon revalued, as
e.g., Aimcor, Alabama Silicon, Inc., and       either increase or decrease costs or          opposed to historical, fixed assets.
American Alloys, Inc. v. United States,        prices as stated in real terms. Yet           Inflation adjustments were not applied
Slip Op. 94–192 (CIT 1994) (Ferrosilicon       because these inflation effects are           to any other balance sheet or income
From Venezuela). Stated another way, at        contained largely within the POI or           statement accounts. Moreover, as in
hyperinflationary levels, the Department       POR, unless demonstrated to be                Colombia, the inflation rate in
adjusts all production costs for the           otherwise, their net effect on the            Venezuela prior to and during the POI
effects of inflation. On the other hand,       Department’s analysis is presumed to be       was significant, but failed to reach the
at inflationary levels that, if                minimal.                                      Department’s hyperinflation threshold.
compounded from year to year,                     Regarding respondents’ claim that our         We also find that respondent’s
significantly affect the value of              methodology imposes a ‘‘one-sided’’           reliance on Portland Cement and
historically-based fixed assets, the           adjustment, we note that the inflation        Cookware from Mexico is misplaced. It
Department adjusts only depreciation           accounting adjustment to fixed assets         is important to note that inflation
expense for the effects of inflation.          does not ‘‘create’’ income. That is, the      accounting practices vary from country
   In the instant case, while the              fact that a company may own fixed             to country. In the cases cited by
Colombian economy did not experience           assets does not in some way earn that         respondents, under Mexican GAAP, the
hyperinflation during any of the PORs,         company income simply as a result of          Department’s acceptance of the
it did see annual inflation rates between      accounting for inflation. Rather,             monetary correction related solely to
20 and 30 percent in the five years            ownership of fixed assets at best acts as     each respondent’s financing expenses
42846               Federal Register / Vol. 61, No. 161 / Monday, August 19, 1996 / Notices

and not, as Asocolflores asserts, to the     Asocolflores contends that to ignore the     COP of the merchandise’’). This practice
fixed assets and depreciation expense.       short-term interest income would distort     has been sustained by the CIT. See, e.g.,
   We also find respondents’ contention      the actual selling expenses of this agent.   Laclede Steel Co. v. United States, Slip
that it is inappropriate to compare          Furthermore, Asocolflores asserts, the       Op. 94–160 at 21–25 (CIT October 12,
annualized costs, which have been            Department has visited this issue in         1994), upholding the Department’s
adjusted for inflation, to monthly U.S.      previous reviews and has rejected it.        decision to reject the respondent’s
sales prices, which have not been               Department’s Position: We examined        reported depreciation expenses in favor
adjusted, to be without merit. What          the expenses reported by Florex’s            of verified information obtained directly
respondents fail to recognize in making      related selling agent and have               from the company’s financial statements
this argument is that production costs       determined that some, if not all, of the     that was consistent with Korean GAAP;
were incurred in the Colombian               interest income derives from                 Hercules, Inc. v. United States, 673 F.
economy, which, as discussed earlier,        intracompany loans. It is the                Supp. 454 (CIT 1987), upholding the
has experienced significant inflation for    Department’s practice to ignore such         Department’s decision to rely on COP
a number of years. The U.S. sales prices,    intracompany transfers regardless of         information from respondent’s normal
on the other hand, are denominated in        whether they relate to sales or              financial statements maintained in
U.S. dollars and have occurred in an         production. See Certain Fresh Cut            conformity with GAAP.
economy which has experienced                Flowers From Colombia; Final Results of         In this case, Miramonte has departed
extremely low inflation during this          Antidumping Duty Administrative              from its normal accounting records in
same time period. In consideration of        Review, 56 FR 32169, 32172 (July 15,         its reporting of the ‘‘land adequation’’
these important differences, our             1991). For these final results, because      costs included in its depreciation
comparison of inflation-corrected            we could not segregate the                   expense. This was in contrast to
Colombian costs to the nominal U.S.          intracompany loans from the interest         instructions in our questionnaire, which
prices is valid and appropriate for these    income reported, we have denied the          stated that ‘‘regardless of whether your
reviews.                                     entire interest income adjustment.           company capitalized expenditures or
                                                Comment 14: The FTC asserts that          expensed them, the cost submission
Company-Specific Issues Raised by the        Cultivos Miramonte (Miramonte)               should be consistent with your normal
FTC                                          departed from its normal accounting          production accounting system and
   Comment 12: The FTC points out that       records by reporting a different             based on your actual accounting
Agricola de los Alisos has been              depreciation period for its ‘‘land           records, if your system and records are
included among the companies that the        adequation’’ costs than it records in its    in accordance with Generally Accepted
Department could not locate although         normal accounting system (Miramonte          Accounting Principles (GAAP).’’
the company had filed a letter notifying     explained in its response that land          Miramonte claimed that the greenhouse
the Department that the company was          adequation is comprised of expenses to       manufacturer expected the greenhouse
liquidated in December 1992. The FTC         level the terrain, dig ditches, and          to have a useful life of 20 years.
argues that Agricola de los Alisos and       construct drainage systems for the           Accordingly, Miramonte amortized its
any other company that has officially        greenhouses). The FTC asserts that           greenhouse expenses over a 20-year
gone out of business should be assigned      Miramonte has not provided evidence          period in both its accounting records
a margin based on a second-tier rate of      that the five-year useful life recorded in   and its response. In contrast to
BIA, consistent with the standard            its accounting records is inappropriate      greenhouse expenses, the land
enunciated in previous reviews.              nor that the 20-year useful life reported    adequation costs were amortized over a
   Department’s Position: We agree with      in its response is more appropriate. The     five-year period in its accounting
the FTC that we should not treat             FTC asks the Department to recalculate       records. Although Miramonte stated that
Agricola de los Alisos as a company that     Miramonte’s land adequation costs on a       it considered land adequation to have
could not be located. Agricola de los        five-year basis as per its accounting        the same useful life as a greenhouse, it
Alisos filed a letter and certification      records.                                     never explained why it treated land
with the Department in May 1994                 Asocolflores rebuts that Miramonte        adequation expenses differently in its
indicating that it is no longer in           has consistently used this methodology       accounting records, nor did Miramonte
business. Consistent with our treatment      since the third review of this order.        justify why a five-year amortization did
of companies that are no longer in           Asocolflores argues that the FTC has         not reasonably reflect the cost of
business, we have applied a second-tier      never raised this issue and the              producing the merchandise. Thus, we
BIA rate to Agricola de los Alisos. See      Department has twice verified                agree with the FTC that Miramonte
Fourth Review at 15173.                      Miramonte and has accepted its               failed to justify that the five-year
   Comment 13: The FTC notes that            methodology in the third and the fourth      amortization of land adequation
Florex reduced the expenses of its           reviews.                                     expenses in its accounting records does
invoicing agent by short-term interest          Department’s Position: We agree with      not reasonably reflect the cost of
income allegedly gained on working           the FTC. Our practice is to adhere to an     producing the subject merchandise.
capital. However, because these              individual firm’s recording of costs in         With respect to Asocolflores’
expenses are related to the sales of         accordance with GAAP of its home             contention that we have verified and
subject merchandise, not the production      country if we are satisfied that such        accepted this methodology in previous
thereof, the FTC asserts that they are not   principles reasonably reflect the costs of   reviews, we first note that verification of
eligible for such an offset adjustment.      producing the subject merchandise. See,      the values used in a methodology does
The FTC requests that the Department         e.g., Final Determination of Sales at Less   not indicate acceptance of the
increase the selling expenses incurred       Than Fair Value: Furfuryl Alcohol from       methodology itself. We agree with
by Florex’s related invoicing agent by       South Africa, 60 FR 22556 (May 8, 1995)      Asocolflores that the FTC has not raised
the amount of short-term interest            (‘‘The Department normally relies on         this issue in the past. An error in
income.                                      the respondent’s books and records           methodology, unmentioned and
   Asocolflores agrees that these            prepared in accordance with the home         undiscovered in previous reviews, does
expenses are selling expenses, and not       country GAAP unless these accounting         not constitute explicit acceptance of that
related to production. However,              principles do not reasonably reflect the     methodology. Nor are we bound by past
                    Federal Register / Vol. 61, No. 161 / Monday, August 19, 1996 / Notices                                 42847

reviews when we do discover a                analysis. In these instances, we may use    verification. The FTC asserts that the
significant error. See Shikoku Chemicals     alternative cost calculation                new methodology is based on only a
Corp. v. United States, 795 F.Supp. 417      methodologies that more accurately          one-day survey to derive the factor and
(CIT 1992). In examining this                capture the costs incurred during the       is therefore questionable. The FTC
methodology in these instant reviews,        POR.                                        contends that the packing hours by
we have found the error to be                   Though Colombian GAAP permits            flower type could have been affected by
significant. Miramonte’s reported land       companies to expense the purchase of        the identity or competency of the
adequation costs are approximately one-      fixed assets when they are incurred,        workers as well as the number of orders
fourth of the amount recorded in its         U.S. GAAP calls for the depreciation        processed that day. The FTC urges the
accounting records. Therefore, for these     and recovery of costs over the expected     Department to require Flores Aurora to
final results, we have increased             productive life of a fixed asset. The       resubmit its calculations based on a
Miramonte’s depreciation expense to          estimated useful life of a fixed asset is   longer survey period or assign packing
reflect the same amount of land              the period over which the asset may         labor costs based on BIA.
adequation costs recorded in its             reasonably be expected to be useful to         Flores Aurora states that its packing
accounting records.                          the individual’s business or to the         expense data was revised and reviewed
   Comment 15: The FTC claims that           production of income. See Fresh             by the Department during verification.
Industrial Agricola departed from its        Kiwifruit from New Zealand; Final           The firm also argues that, since it does
ordinary accounting practice in              Results of Antidumping Duty                 not keep records that segregate packing
preparing the questionnaire response by      Administrative Review, 59 FR 48596,         costs by flower type, it was reasonable
amortizing pre-production expenses and       48598 (Sept. 22, 1994). Similarly,          for the Department to accept the survey.
depreciating greenhouse costs even           amortizing pre-production expenses             Department’s Position: We agree with
though such items have been expensed         allows a firm to more accurately match      Flores Aurora that packing labor was
in its books. The FTC argues that, unless    these expenses with the sales to which      revised during verification and not after
Industrial Agricola can show that the        they are attributable. In this instance,    verification. We reviewed and verified
normal methodology for depreciation          because the economic useful life of         the firm’s methodology for calculating
creates a distortion, it should not depart   Industrial Agricola’s greenhouses and       expenses and found it to be accurate.
from its normal cost accounting              pre-production expenses extend past the     See Flores Aurora Verification Report,
procedures. Citing Cemex S.A. v. United      year of purchase, we find that its          November 4, 1994. For packing
States, Slip Op. 95–72, 29 Cust. Bull.,      method of accounting for these costs in     expenses, Aurora initially calculated a
No. 20, 119, 128 (CIT April 24, 1995),       its own books does not reasonably           standard packing labor and materials
the FTC argues that the fact that            reflect costs for our antidumping           cost per box for each flower type, then
accelerated depreciation is permitted        analysis. Therefore, we accept Industrial   multiplied this cost by the number of
under the tax rules of the country in        Agricola’s methodology of amortizing        boxes shipped to each customer during
question does not establish that such        pre-production expenses and                 each POR. During verification, we
depreciation is reasonable. The FTC          depreciating greenhouse costs.              compared Aurora’s standard costs to
requests that the Department correct            Comment 16: The FTC claims that          actual costs as indicated by Aurora’s
Industrial Agricola’s response to            Flores Aurora’s amortized pre-              available source documents and asked
eliminate any distortion.                    production costs may have been              the firm to report actual costs based on
   Industrial Agricola maintains that it     inaccurately calculated. The FTC alleges    the variance. To calculate the actual
followed its practice in previous            that pre-production expenses were           number of hours needed to pack a box
reviews of amortizing pre-production         reported as percentages rather than         of each flower type, Aurora submitted
expenses and depreciating greenhouse         amounts as required by the                  worksheets compiling packing labor
costs even though such items have been       questionnaire. The FTC requests that the    information from each of its packing
expensed in its books. Respondent            Department correct Flores Aurora’s          rooms for one workday. We find this
contends that the Department has             response so that the actual amounts, and    methodology to be reasonable because
recognized that, in this case, these         not percentages, are used in the relevant   the survey includes virtually all of
specific expenses and costs are              lines in the Lotus spreadsheet.             Aurora’s packing workers and,
appropriately amortized in order to             Flores Aurora states that it reported    therefore, would not be unduly affected
avoid distortions and to match costs         pre-production costs accurately in peso     by the competency of the workers
with revenues.                               amounts and that the FTC                    surveyed. In other words, the large
   Department’s Position: We agree with      misinterpreted Aurora’s narrative           number of workers included in the
Industrial Agricola. It is our policy to     response without examining the              survey ensured an accurate average.
allow companies to depreciate capital        relevant section of the Lotus               Also, since the survey was used to
assets over their useful lives and to        spreadsheet Aurora provided.                compute the amounts of time needed to
amortize pre-production expenses in             Department’s Position: We agree with     pack a box of each type of flower, order
order to avoid distortions in the cost of    Flores Aurora that it reported pre-         variations on any given day are not a
production, as well as to match costs        production cost accurately. In Aurora’s     significant factor. Based on our
with revenues. This is true even where       August 19, 1994, supplemental               verification efforts, we are satisfied that
the firm has expensed the costs in its       response, it reported expenses as peso      Aurora’s revised figures are accurate.
books.                                       amounts, not percentages. We                   Comment 18: The FTC argues that the
   Normally, we require respondents to       subsequently verified this reporting        Funza Group had Colombian
report production expenses pursuant to       methodology. See Flores Aurora              borrowings during the 5th review and,
their home country GAAP. However, we         Verification Report at 10. Therefore, we    therefore, credit expenses for the 5th
may reject the use of home country           have accepted Flores Aurora’s               review should be recalculated based on
GAAP as the basis for calculating            calculations.                               a peso-denominated interest rate.
production costs if we determine that           Comment 17: The FTC claims that             The Funza Group argues that a U.S.
the accounting principles at issue           Flores Aurora revised its packing           borrowing rate should apply to credit
unreasonably distort or misstate costs       expense calculations, involving a factor    expenses for Funza and all other
for purposes of an antidumping               for packing hours per flower type, after    respondents.
42848               Federal Register / Vol. 61, No. 161 / Monday, August 19, 1996 / Notices

   Department’s Position: We agree with      Department might assess a per-stem          these three reviews that peso
the FTC. See our response to Comment         duty rate for companies that reported       borrowings to finance dollar debt is
22, below.                                   their data in bunches, and that this        contrary to economic reality. The FTC
   Comment 19: The FTC argues that the       would cause the assessed duties and         also indicates that LMI does not apply
Funza Group deviated from its                duty deposits to greatly exceed the         because, in that case, the foreign
accounting records without reason.           actual amount of dumping the                producer had actually obtained dollar-
According to the FTC, the Group              Department found in its margin              denominated loans and could be
expensed greenhouse costs in its             analysis.                                   expected to use such financing with
records, but for purposes of the response       Department’s Position: We intend to      respect to its U.S. sales. The FTC points
it depreciated the expenses on a             issue duty rates either on the basis of     out that LMI did not hold that, where a
monthly basis over the life of the           the units in which the individual           company had actual borrowings in a
greenhouse. The FTC contends that            respondent reported its data or on a        particular currency, that rate should be
depreciation costs of greenhouse             Customs entered value basis. If we          rejected in favor of an estimate of the
expenses should be recalculated to           assess on the basis of Customs entered      rate that would have been obtained if
conform to the firm’s normal cost            value, the rates will be assessed as a      the company obtained dollar-
practices.                                   percentage of the total entered value of    denominated loans. The FTC argues that
   The Funza Group claims that, because      the imported subject merchandise.           the currency in which a sale takes place
a greenhouse has a useful life exceeding     Therefore, Customs will collect the         does not necessarily have any
the period in which the expense is           proper amount of antidumping duties         relationship to the borrowing rate faced
incurred, costs would be grossly             owed regardless of whether the              by a grower, and that the Department
distorted if the Department expensed         respondent reported units in bunches or     must derive the appropriate interest rate
them as the Group did in its books and       stems.                                      from the firm’s actual borrowing
records.                                        Comment 22: Asocolflores, the Florex     experience. Finally, the FTC concludes
   Department’s Position: We agree with      Group, the Claveles Colombianos             that not all respondents would be able
the Funza Group. Although the                Group, the Santana Flowers Group, and       to obtain dollar-denominated financing
company may have expensed                    the Floraterra Group argue that applying    and that the Department lacks authority
greenhouse costs for tax purposes, we        a peso-denominated short-term               to estimate a dollar rate where the
find that this method of accounting          borrowing rate to sales made in U.S.        record contains evidence of the actual
distorts costs for purposes of our           dollars is contrary to current              costs.
analysis. Depreciating fixed assets over     Department policy, economic and                Department’s Position: Consistent
their useful life more accurately reflects   commercial reality, and the law as          with our practice in the Fourth Review
the cost of sales during each POR. See       established in LMI–La Metalli               and in the preliminary results of these
our response to Comment 15, above,           Industriale, S.p.A. v. United States, 912   reviews, we used U.S. dollar borrowing
concerning a similar situation with          F.2d 455, 460–61 (Fed. Cir. 1990) (LMI).    rates to impute U.S. credit expenses
Industrial Agricola.                         Citing recent cases such as Roses and       where the respondent or a U.S. related
   Comment 20: The FTC claims that           Brass Sheet and Strip from Germany:         party had U.S. dollar short-term
Funza allocated Colombia Flower              Final Results of Antidumping Duty           borrowings. However, where a
Council (CFC) charges by flower type         Administrative Reviews, 60 FR 38542,        respondent (or its U.S. related party)
based on number of boxes shipped,            these respondents state that Department     had no dollar borrowings and financed
which is contrary to the Department’s        policy mandates use of a U.S. dollar        its working capital through Colombian
questionnaire instructions to allocate       interest rate to calculate imputed credit   peso borrowings, we calculated U.S.
such costs on the basis of sales value,      on U.S. sales even in cases where a         imputed credit expenses using the
rather than volume, if they are paid as      respondent has no borrowings.               firm’s actual peso-denominated short-
a fixed percentage of sales. The FTC         Respondents also argue that, in LMI, the    term borrowing rate, and adjusted this
requests that the Department reallocate      court reversed the Department’s             rate to reflect the appreciation of the
these costs on the basis of value and        decision to apply a higher home market      dollar against the peso. We did this by
deduct them from USP as direct selling       borrowing rate to sales denominated in      subtracting the rate of appreciation of
expenses.                                    U.S. dollars and directed the               the dollar against the peso during each
   The Funza Group argues that CFC fees      Department to recalculate imputed           POR from the peso-denominated short-
are assessed based on a fixed charge for     credit expenses using a U.S. dollar rate    term borrowing rate reported by the
each box of flowers sold; therefore, the     under the rationale that a borrower will    firm. Only where no short-term
Funza Group maintains, the charges           look for the lowest possible rate across    borrowings were reported in either
should be allocated based on the             international borders. Respondents          currency did we use the U.S. prime rate
number of boxes sold rather than the         conclude that the only way to measure       during each POR.
relative value of sales.                     the cost of financing sales made in U.S.       Although we recognize that our
   Department’s Position: We disagree        dollars is by applying a dollar interest    current decision represents a change
with the FTC. We generally prefer            rate to the dollar price. Respondents       from our recent practice, we disagree
expenses to be allocated on the basis in     recommend that the Department use the       with respondents that our decision to
which they are incurred. Because the         U.S. prime rate to calculate credit         use peso-denominated short-term
CFC fees are incurred on a per-box           expenses for firms with no actual U.S.      borrowing rates, adjusted for currency
basis, we have accepted the Funza            dollar borrowings.                          fluctuations, is contrary to commercial
Group’s allocation methodology.                 The FTC states in its rebuttal brief     reality and the law as established in
                                             that respondents argued in the fourth       LMI. In LMI, the CAFC stated that the
General Issues Raised by Asocolflores        review that, as a result of the steady      cost of credit ‘‘must be imputed on the
  Comment 21: Asocolflores requests          devaluation of the Colombian peso           basis of usual and reasonable
that the Department issue duty rates         against the U.S. dollar, it is cheaper to   commercial behavior.’’ LMI–La Metalli
consistent with the units in which each      borrow pesos in Colombia than it is to      Industriale, S.p.A. v. United States, 912
respondent reported its data.                borrow dollars. The FTC asserts that this   F.2d 455, 461 (Fed. Cir. 1990). Because
Asocolflores expresses concern that the      seems to refute respondents’ claim in       the respondent in LMI provided
                      Federal Register / Vol. 61, No. 161 / Monday, August 19, 1996 / Notices                                       42849

evidence that it had obtained dollar-            currency fluctuations on repatriating           lending rates calculated by the Federal
denominated loans during the period of           revenue.                                        Reserve as surrogates for actual U.S.
investigation, and because the dollar               The new policy described in the 1994         dollar borrowing rates. However, we
rate was lower than the corresponding            Memorandum was most recently                    have decided not to reopen the record
lira rate, the CAFC held that the                implemented in Certain Corrosion-               at this late stage in order to collect
Department should have used the lower            Resistant Carbon Steel Flat Products            Federal Reserve borrowing rates and
dollar rate for purposes of calculating          from Australia; Final Results of                solicit comments on their use, given
imputed credit. However, in this case,           Antidumping Duty Administrative                 that: (1) The adjusted home market
many of the respondents did not have             Reviews, 61 FR 14049, 14054 (March 29,          interest rates that we have used are
U.S. dollar-denominated loans.                   1996) (Steel). In Steel, the Department         reasonable surrogates for imputing U.S.
   After LMI, during the LTFV                    stated,                                         credit expenses; (2) several hundred
investigations involving certain carbon                                                          recalculations would be required in
                                                   When a respondent has no U.S.
steel butt-weld pipe fittings, the               borrowings, it is no longer the Department’s    order to impute credit expenses on a
Department proposed a new policy for             practice to substitute home market interest     different basis; and (3) further delays in
selecting interest rates to be used in           rates when calculating U.S. credit expense      issuing these final results would be
imputed credit calculations. See                 and inventory carrying costs. Rather, the       caused by reopening the record and
Memorandum from Program Manager to               Department will now match the interest rate     recalculating this adjustment. See
the File (August 8, 1996), attaching a           used for credit expenses to the currency in     Tapered Roller Bearings Four Inches or
September 6, 1994, Memorandum from               which the sales are denominated. * * *          Less in Outside Diameter from Japan;
the Director of the Office of                    Where there is no borrowing in a particular
                                                 currency, the Department may use external
                                                                                                 Final Results of Antidumping Duty
Investigations to the Deputy Assistant           information about the cost of borrowing in      Administrative Review, 55 FR 22369
Secretary for Investigations (hereinafter        that currency. * * * In the absence of U.S.     (June 1, 1990) (Comment 27).
referred to as ‘‘the 1994                        dollar borrowings, we need to arrive at a          Finally, as stated by the FTC, we note
Memorandum’’). The 1994                          reasonable surrogate for imputing U.S. credit   that, during the fourth review,
Memorandum suggests that, in                     expense. There are many and varied factors      respondents did not contend that the
situations where the respondent has no           that determine at what rate a firm can borrow   use of peso-denominated short-term
short-term borrowings in the currency of         funds, such as the size of the firm, its        borrowing rates (adjusted for exchange
                                                 creditworthiness, and its relationship with     rate fluctuations) was inappropriate for
the transaction, the Department can: (1)
                                                 the lending bank.
Accept ‘‘external’’ information about the                                                        respondents with no U.S. dollar
cost of borrowing in the relevant                (Emphasis added.) See also Final                borrowings. Instead, respondents
currency; or (2) adjust for the                  Results of Antidumping Duty                     implied that adjusted peso-denominated
application of a single, observed interest       Administrative Review; Certain Cut-to-          short-term borrowing rates did reflect
rate to both home market and U.S. sales,         Length Carbon Steel Plate from Sweden,          economic reality, arguing that
taking into account exchange rate                61 FR 15772, 15780 (April 9, 1996).             borrowing pesos in Colombia was
fluctuations between the two currencies.            We note that Steel does not state that,      cheaper than borrowing U.S. dollars,
The 1994 Memorandum gave preference              in the absence of U.S. dollar-                  even when financing dollar debt. In the
to the first option; however, it                 denominated loans, the Department will          fourth review, respondents contended
acknowledged the acceptability of using          impute credit expenses based on                 only that we should adjust the peso-
borrowing rates incurred in a different          ‘‘external information.’’ Rather, Steel         denominated short-term borrowing rates
currency from that of the transaction, if        states that the Department will use a           for devaluation of the peso against the
the rates are adjusted for exchange rate         reasonable surrogate for imputing U.S.          dollar (i.e., currency fluctuation), and
fluctuations.                                    credit expenses. Respondents’ actual            we made this adjustment. During the
   The 1994 Memorandum makes clear               peso-denominated short-term borrowing           fourth review period, the dollar
that the practice of using unadjusted            rates, adjusted for the rate of                 appreciated against the peso at a high
home market currency borrowing rates             appreciation of the dollar against the          rate. This resulted in a large downward
to impute U.S. credit expenses is not            peso, are reasonable surrogates for U.S.        adjustment to the peso-denominated
acceptable because it does not account           dollar short-term borrowing rates. Such         short-term borrowing rates, and,
for fluctuations in exchange rates over          rates are reasonable because the cost of        therefore, a low U.S. imputed credit
time. This reasoning was further                 extending credit to customers can be            calculation. However, during the
articulated in the Final Determination of        measured by a company’s actual short-           current reviews, the rate of appreciation
Sales at Less Than Fair Value; Oil               term borrowing experience. Companies            of the dollar against the peso was not as
Country Tubular Goods from Austria, 60           often take out short-term loans to fund         significant, and, therefore, the offsets to
FR 33551, 33555 (June 28, 1995)                  business operations in anticipation of          the peso-denominated short-term
(OCTG). In OCTG the Department                   receiving revenue, especially small             borrowing rates are smaller.
stated,                                          flower growers who sell on a                    Respondents now object to the use of
                                                 consignment basis. Therefore, if a flower       peso-denominated short-term borrowing
   A company selling in a given currency         grower’s operations are paid for in
(such as sales denominated in dollars) is                                                        rates, arguing that they do not reflect
effectively lending to its purchasers in the     pesos, it is reasonable to use the              ‘‘economic reality.’’ However, it would
currency in which its receivables are            company’s actual peso-denominated               be inappropriate for the Department to
denominated (in this case, in dollars) for the   short-term borrowing rate to measure            change its practice in these reviews
period from shipment of its goods until the      the opportunity cost of extending credit        merely because the lower rate of
date it receives payment from its purchaser.     to customers, if that rate is adjusted for      appreciation of the dollar against the
Thus, when sales are made in, and future         fluctuations in the peso/dollar exchange        peso would result in less favorable
payments are expected in, a given currency,      rate to take into account ‘‘the effect of       adjustments for respondents.
the measure of the company’s extension of
                                                 currency fluctuations on repatriating              Comment 23: Asocolflores contends
credit would be based on an interest rate tied
to the currency in which its receivables are     revenue’’ noted in OCTG.                        that the Department’s methodology for
denominated. Only then does establishing a          We recognize that in the recent Steel        adjusting the peso borrowing rates used
measure of imputed credit recognize both the     decisions, issued in March and April of         to calculate U.S. imputed credit
time value of money and the effect of            this year, we used average short-term           expenses is incorrect because it
42850                Federal Register / Vol. 61, No. 161 / Monday, August 19, 1996 / Notices

measures the effective peso borrowing         calculate USP. See, e.g., Second Review     FTC also argues that HOSA’s and
rate, e.g., the cost of borrowing pesos to    at 20495. This use of monthly averaging     Asocolflores’ reliance on IPSCO is
finance the equivalent in pesos of            has been upheld by the CIT. See, e.g.,      misplaced. In the FTC’s view, the CAFC
dollars. Asocolflores contends that, if       Floral Trade Council v. United States,      did not address the issue of whether the
the Department continues to use an            775 F. Supp. 1492, 1499–1501 (CIT           value difference between the products
adjusted peso borrowing rate to               1991).                                      necessitated by-product treatment.
calculate U.S. imputed credit expenses,          For the current reviews of Colombian        Department’s Position: We disagree
it should use a methodology that              flowers, we have continued to use           with HOSA. One of the factors the
measures the equivalent dollar                monthly averages as this averaging          Department uses to assess the proper
borrowing rate, e.g., the effective cost of   period compensates for the perishability    accounting treatment of jointly-
lending dollars when the original             of the subject merchandise. We reject       produced products is a comparison of
borrowing is in pesos.                        respondents’ invitation to engage in        the value of each specific product
   The FTC contends that the                  annual U.S. averaging because, as in        relative to the value of all products
Department’s methodology for adjusting        prior reviews, annual averaging creates     produced during, or as a result of, the
the peso borrowing rates is correct, and      the potential for masking dumped sales      process of manufacturing the main
that the Department should reject             (i.e., annual averaging would allow         product or products. In this regard, the
respondents’ proposed calculation             exporters to dump for entire months         distinguishing feature of a by-product is
methodology.                                  when demand is sluggish, so long as         its relatively minor sales value in
   Departments Position: To account for       they recoup their losses during months      comparison to that of the major product
fluctuations in the peso/dollar exchange      of high demand). Therefore, we have         or products produced. Our general
rate, and because U.S. imputed credit         continued our practice of using monthly     practice in cases involving agricultural
expenses must be quantified in dollars        average U.S. prices in our margin           goods has been to treat ‘‘reject’’ products
so that they may be deducted from USP,        analyses.                                   as by-products and to offset the total
we adjusted peso borrowing rates for the         Comment 25: HOSA Ltda. and               cost of production with revenues earned
devaluation of the peso against the           Asocolflores argue that costs should be     from the sale of any such ‘‘reject’’
dollar before we used those rates to          allocated over all flowers sold,            products. We then allocate the
calculate U.S. imputed credit expenses.       including ‘‘national quality’’ flowers.     cultivation costs, net of any recovery
Our methodology measures                      Their arguments are based on two            from ‘‘rejects,’’ over the quantity of non-
respondents’ borrowing costs in real          developments. First, both claim that        reject products actually sold. See, e.g.,
terms. As explained in our response to        national quality flowers are now sold in    Roses; Roses from Ecuador; Fresh Cut
Comment 22 above, this methodology is         the United States and that this             Flowers from Colombia, 52 FR 6844
reasonable. Therefore, we have not used       development is supported by the             (March 5, 1987); Fresh Cut Flowers from
Asocolflores’ proposed methodology.           Department’s verification report dealing    Peru, 52 FR 7003 (March 6, 1987); Fall-
   Comment 24: Asocolflores argues that       with HOSA’s sales activities. Because       Harvested Round White Potatoes from
the Department should use annually-           national quality flowers are subject to     Canada, 48 FR 51673 (November 10,
averaged U.S. prices in its margin            the order, respondents argue, such          1983); Fresh Cut Roses from Colombia,
analysis. It argues that, due to (1) The      flowers cannot have a cost of production    49 FR 30767 (August 1, 1984).
inability to control production in the        of zero. Second, both cite the 1990            In accordance with our practice in the
short-term, (2) the highly perishable         decision of the CAFC in IPSCO, Inc. v.      less-than-fair-value investigation and
nature of the product and the inability       United States, 965 F.2d 1056 (IPSCO),       subsequent reviews of this case, fresh
to store production, and (3) the extreme      in support of their argument that the       cut flowers have been classified as
seasonality of demand and prices, the         Department can no longer treat national     either export-quality (high quality) or as
only way to appropriately measure U.S.        quality flowers as by-products with no      culls (low quality or reject). Our practice
prices is by using annually-averaged          cost. Respondents argue that the only       was upheld by the CIT in Asociacion
U.S. prices.                                  difference between national and export      Colombiana de Exportadores v. United
   The FTC responds that the                  quality flowers is quality and thus         States, 704 F. Supp. 1114, 1125–26 (CIT
Department has based U.S. prices on           value. Respondents further argue that       1989). The CIT found that ‘‘[c]ulls were
monthly averages consistently                 IPSCO held that the Department may          often disposed of as waste, or if saleable,
throughout this proceeding and that           only treat as a by-product products         were sold for low prices in the local
there are no new facts that compel the        which are distinct in kind from the         market. ITA’s treatment of non-export-
Department to do otherwise.                   primary product subject to investigation    quality flowers as a by-product was
   Department’s Position: Section 777A        and that lower quality grades of the        supported by substantial evidence. The
of the Act allows the Department to           same product, used for the same             record indicates that cull value was
‘‘use averaging or generally accepted         purposes as the primary product and         relatively low and that the production of
sampling techniques whenever a                produced by the same process, may not       culls was unavoidable. These both have
significant volume of sales is involved       be treated as a by-product.                 been recognized by ITA in the past as
or a significant number of adjustments           The FTC argues that national quality     indicia of by-product status.’’ The CIT
to prices is required.’’ Further, the Act     flowers are not co-products and that the    further noted that ‘‘[c]ull value, if
states that the ‘‘authority to select         test to determine whether a product         determinable, should be deducted from
appropriate samples and averages shall        should be treated as a co-product or by-    cost of production and production costs
rest exclusively with the administering       product is (1) Whether the value of the     should not be allocated to culls.’’
authority; but such samples and               product is lower in relation to the            However, in these reviews,
averages shall be representative of the       principal product, and (2) whether the      respondents have characterized culls as
transactions under investigation.’’ See       product’s production is only incidental     ‘‘national’’ or ‘‘second’’ quality flowers
also 19 CFR 353.59(b) (1994).                 to the production of the main product.      and have argued that, because HOSA
   In prior reviews and the investigation     The FTC concludes that, since no flower     exported some ‘‘second-quality’’
of Colombian flowers, we have                 producer intends to produce lesser          flowers, they cannot be treated as by-
exercised our authority under section         quality flowers, national quality flowers   products. We agree with respondents
777A by using monthly U.S. averages to        are correctly treated as by-products. The   that any flowers sold to the United
                     Federal Register / Vol. 61, No. 161 / Monday, August 19, 1996 / Notices                                    42851

States should not be treated as by-            grade of flowers, but are unintentionally      respondents claimed that cull flowers
products, and, for our preliminary             and unavoidably produced by-products           were in any way comparable to export-
results of review, we did in fact allocate     that have minimal value. The record            quality flowers. This factual situation
costs to all export-quality flowers HOSA       shows that the ‘‘second-quality’’ flowers      suggests that the grades are not
produced during the PORs. However,             sold by HOSA in the home market had            comparable, and that there is a
we disagree that the HOSA verification         very low value: ‘‘HOSA’s home market           significant difference in grade between
report demonstrates that cull flowers          prices for ‘second-quality’ flowers were,      export-quality and national-quality
were sold to the United States. At             on average, approximately 40% of home          flowers.
verification, HOSA explained that it           market prices’’ for first quality (i.e.,          We disagree with respondents’
sold a small quantity of flowers that it,      indisputably export-quality) flowers,          argument that the inclusion of cull
HOSA, had graded as ‘‘second quality’’         and ‘‘both grades sold in the home             flowers in the class or kind of
to the United States and only during           market were, on average, below cost.’’         merchandise compels us, under the
periods of peak demand (‘‘HOSA stated          See HOSA Group Verification Report             IPSCO decision, to assign cost to culls.
that * * * some second-quality flowers         (January 13, 1995) at 9–11. Contrary to        A decision that a particular product is,
were even sold in the United States in         HOSA’s assertions, the fact that               or is not, within the scope of a
periods of high demand,’’ HOSA Group           ‘‘second-quality’’ flowers sold in the         proceeding does not dictate, nor
Verification Report (January 13, 1995),        home market were sold at prices well           necessarily have any relation to, the
at 10). In addition, we found at               below the costs HOSA attributes to the         selection of the particular cost
verification that HOSA generally only          production of these flowers suggests           accounting methodology that must be
sold export-quality flowers in the home        that there is not a genuine domestic           applied in the determination of CV. We
market when demand in the United               market for ‘‘second-quality’’ flowers          do not read the CAFC’s decision in
States was too low to justify shipping         which HOSA claims it intends to                IPSCO as standing for the proposition
the flowers to the United States.              produce. Furthermore, HOSA’s claims            that, in all circumstances, a by-product,
   In HOSA’s original section D                that a few ‘‘second-quality’’ flowers          for accounting purposes, cannot be
response, HOSA reported that it has two        were sold in the United States, and then       within the class or kind of merchandise
grades: top quality, which meet all of a       only during peak periods of demand,            as that term is defined under the Act.
number of standards, and culls, which          leads us to conclude that the vast             Moreover, as discussed above, our
do not meet all of the standards               majority of ‘‘second-quality’’ flowers did     position in this regard has been well-
enumerated in the response. See HOSA           not meet the minimum standards for             established in previous decisions and
Group response to sections C and D             sale in the United States, and that the        explicitly upheld by the CIT.
dated July 22, 1994 at 21. Later, HOSA         vast majority of ‘‘second-quality’’               We have had an established practice
claimed that it did not sell culls, but        flowers were therefore culls.                  since the less-than-fair-value (LTFV)
rather that it sold second quality flowers        We conclude that HOSA’s domestic            investigation of treating cull flowers as
in the home market. At verification,           market is no different from the market         by-products. Neither respondents nor
HOSA presented a list of standards that        enjoyed by other Colombian flower              petitioner in this proceeding have
applied to all ‘‘first quality’’ flowers and   producers. In other words, this market         voiced any concern regarding this
explained that ‘‘second quality’’ flowers      exists to the extent that HOSA, like           practice prior to these reviews. Now,
were those flowers that did not meet all       many other Colombian flower                    HOSA and Asocolflores claim that the
of the standards necessary for a flower        producers, sells flowers it cannot export      factual situation has changed such that
to be graded as ‘‘first quality.’’ See         as surplus at the farm gate for whatever       we must significantly alter our
HOSA Group Verification Report                 price it can get for the flowers.              treatment of cull, or national-quality,
(January 13, 1995) at 9–11. This                  Nevertheless, we conducted a further        flowers. In other words, these
definition of ‘‘second quality’’ flowers       test of our treatment of cull flowers as       respondents claim that (1) National-
matches the definition of cull flowers         by-products. We examined the total             quality flowers are not by-products but
HOSA originally reported. Therefore,           national- and export-quality sales of the      co-products, (2) there is a viable market
we find no reason to treat what HOSA           ten largest producers in these reviews in      for such (national-quality) flowers in the
claims to be ‘‘second quality’’ flowers        order to determine whether national-           home market, and (3) there is little
sold in the home market any differently        quality flower sales had significant           difference in grade between export-
than we have treated culls in these            value. Six of these firms had cull, or         quality and national-quality flowers.
reviews.                                       national, flower sales. We have found          The burden is on HOSA and
   We find that HOSA’s internal grading        that total and average per-unit revenues       Asocolflores to demonstrate that these
system is not dispositive as to whether        generated from the sale of cull flowers        factual situations exist. Respondents
a cull is a by-product. While HOSA             were small (in most cases negligible)          submitted no evidence that
claims to have sold some ‘‘second-             compared to total revenues generated           demonstrated these three points. In fact,
quality’’ flowers in the United States,        from the sale of subject merchandise           for each point raised by respondents,
this does not mean that HOSA did not           (including culls) (see Memorandum to           record evidence supports a different
produce and sell culls in Colombia. If a       Holly Kuga from Laurie Parkhill (July          conclusion. The only change that we
flower is to be exported it must meet the      30, 1996)). This pattern is consistent         found appears to be HOSA’s internal
minimum grade requirements of the              with the CIT’s standard that by-products       grading system. Therefore, we find that
U.S. market, whereas a cull is any             are sold at a very low value.                  we have no grounds to warrant a change
flower that does not meet those                   We find no evidence to support              in our established practice.
requirements. Such flowers are not             respondent’s claim that there is little
intended to be produced and are not            difference in grade between export-            Company-Specific Issues Raised by
worth exporting. We use the term               quality and national-quality flowers. We       Asocolflores
‘‘culls’’ as an accounting concept in          did find at verification that the prices of      Comment 26: Asocolflores asserts that
distinguishing which individual                ‘‘second-quality’’ flowers sold in the         the Department erred in collapsing eight
products may reasonably carry costs,           home market were considerably less             companies into the Queen’s Flowers
but this is not necessarily a grading          than the prices of ‘‘first-quality’’ flowers   Group. Asocolflores notes that the
concept. Culls are not simply a low            sold in the home market. No other              Department’s August 3, 1995
42852                Federal Register / Vol. 61, No. 161 / Monday, August 19, 1996 / Notices

memorandum predicates its collapsing             According to Asocolflores, the            maintains that, although some of the
test by examining the relationship            Department’s conclusion that shifting of     companies in the group rent office space
between the Queen’s Flowers Group             production is possible if companies          in a building that is owned by some of
companies under section 771(13) of the        produce the same merchandise renders         the companies in the group, neither the
Act. Respondents assert that the              the test meaningless. Asocolflores           costs nor the spaces are shared, and
Department established precedents for         argues that where companies produce          each firm operates its own phone line.
this analysis in Roses from Ecuador at        the same merchandise, shifting of               Asocolflores disputes the
7040 and Notice of Final Determination        production is not possible unless the        Department’s conclusions regarding the
of Sales at Less Than Fair Value and          flower plant itself is uprooted and          fact that there are intercompany
Final Negative Critical Circumstances         transferred to another location. In          transactions; in respondents’ opinion
Determination: Disposable Pocket              addition, respondents state that several     this does not indicate that the
Lighters From Thailand, 60 FR 14263,          of the firms do not produce the same or      companies are involved in each other’s
14268 (March 16, 1995) (Lighters).            even subject merchandise.                    pricing and production decisions.
However, Asocolflores distinguishes              Asocolflores goes on to state that, in    Asocolflores also disagrees with the
Roses from Ecuador and Lighters from          analyzing whether the companies              Department’s conclusion that, because
the instant case. Whereas the former          operate as separate and distinct entities,   virtually all of the production of flowers
cases involved collapsing the sales in        the Department ignored the fact that         is sold by the related importers, the
the United States of related parties, in      each company is run by its own               companies are linked to one another.
the instant case, Asocolflores notes, the     independent manager and does not                In sum, Asocolflores maintains that,
Department would collapse both sales          assist the other companies through           by collapsing the companies’ cost and
and constructed value data. As such,          loans or otherwise. Instead, Asocolflores    sales data, the Department achieves the
Asocolflores argues that both the related     asserts the Department focuses on sales      very effect that it intends to avoid: the
party definitions of section 771(13) and      of flowers between some of the               possibility of manipulation. Although
section 773(e)(4) need be satisfied before    companies. However, Asocolflores             the companies do not object to being
the Department may apply its collapsing       contends that, if the sales between          collapsed per se (notwithstanding their
analysis.                                     companies were arm’s-length                  belief that the Department has no legal
   Asocolflores contends that Congress        transactions, then the Department must       or statutory authority to collapse any or
has clearly delineated the circumstances      conclude that the companies operate as       all of the 20 companies), they take issue
under which the Department may                separate and distinct entities under         with the collapsing analysis because
disregard transactions between                section 773(e)(2). Moreover,                 they fear that the Department may use
companies. Respondents assert that the        Asocolflores notes that it is a common       the results of such analysis in
Department has no authority to look           industry practice for flower companies       determining whether the companies
past the transfer price and use the           to buy or sell small quantities of flowers   responded completely to the
seller’s cost of production unless the        to help fill an order. As an example,        questionnaire.
relationship between buyer and seller         Asocolflores refers to Agroindustrial del       The FTC maintains that Asocolflores
meet the criteria set forth in section        RioFrio, which is a bouquet maker. As        is incorrect in asserting that section
773(e)(4). Asocolflores argues that the       such, Asocolflores states, it must           771(13) is limited to identifying when
Department cannot circumvent                  purchase a variety of flowers from other     an exporter and an importer are related.
Congress’ intent and the express              producers. Yet, according to                 The FTC states that section 771(13) also
requirements of the statute by applying       Asocolflores, the intercompany               defines relationships when the
a different related party test.               transactions are few and far between         merchandise is sold to the United States
   Asocolflores agrees that, under            and occur at prices above their cost of      ‘‘by or for account of the exporter’’ (19
773b(e)(4), a few of the companies are        production, and all the purchased            C.F.R. § 353.41(c)) or when the
related. Asocolflores also agrees that        flowers were then exported to third          merchandise is sold in the home market
some of the companies are related under       countries, not the United States.            to or through a related party (19 C.F.R.
771(13). However, Asocolflores                Asocolflores maintains that the sales to     § 353.45). In contrast, the FTC asserts,
contends that not all are related to each     the commonly owned importers are             the definition in section 773(e)(4) only
other, nor can the Department use the         irrelevant to the Department’s analysis      applies to producers who purchase
transitive principle to relate two parties    of this criterion. Moreover, Asocolflores    major inputs from related suppliers.
simply because they are both related to       contends, the importers have developed          Given the nature of the flower
a third party. Asocolflores contends          an inventory system that precludes the       industry and the lack of markings
that, in its analysis of the two sub-         potential for price manipulation.            identifying the producer, the FTC argues
groups within the Queen’s Flowers             Asocolflores argues that the existence of    that the Department’s concerns that a
Group, the Department ignores the fact        common board members cannot be               producer with a high margin may route
that there are several pairings of            sufficient to prove that two respondents     its flowers through a related producer
companies which do not meet the               actually share marketing and sales           with a low margin should be
statutory criteria. Asocolflores argues       information. Because interlocking            heightened. The FTC believes that,
that the Department may not collapse          boards of directors is a separate factor,    considering this environment, coupled
companies that are not related.               it should not overlap with the               with the various transactions and
   Asocolflores asserts that,                 Department’s consideration of whether        relationships between the members of
notwithstanding the Department’s              two respondent’s share marketing and         the Queen’s Flowers Group, the
failure to realize the threshold to its       sales information.                           Department appropriately collapsed the
collapsing analysis has not been met,            Asocolflores points to the companies’     Group into a single entity.
the Department erred in its conclusions       statements that they do not share sales         Asocolflores rebuts that the FTC has
for the five points of the collapsing test.   or marketing information or offices.         not identified where in the statute or the
Asocolflores agrees that some of the          Asocolflores maintains that, lacking         questionnaire a company can look to
companies have common board                   evidence to the contrary, these              determine which definition of related
members, but that this criterion is not       statements preclude the Department           party the Department will apply for the
satisfied for all companies.                  from concluding otherwise. Asocolflores      purpose of collapsing. Moreover,
                    Federal Register / Vol. 61, No. 161 / Monday, August 19, 1996 / Notices                               42853

Asocolflores reiterates its assertion that   14268 (declining to collapse non-related    from Michael F. Panfeld to Holly A.
771(13) is limited to defining the           companies). Second, the Department          Kuga dated February 1, 1996.
relationship between the importer and        examines whether the companies in              We disagree with Asocolflores’
the exporter, not between two exporters.     question have similar production            assertion that we applied the wrong
Finally, Asocolflores contends that the      facilities, such that retooling would not   statutory definition of related party in
FTC fails to point to record evidence        be required to shift production from one    our analysis. Section 773(e)(4) pertains
that all of the companies are related        company to another. See Certain             solely to determining the cost of inputs
under the statutory tests.                   Corrosion-Resistant Carbon Steel Flat       purchased from related parties in
   The FTC rebuts that 19 CFR 353.41(c)      Products and Certain Cut-to-Length          calculating constructed value. The
and 353.45 clearly direct the                Carbon Steel Plate From Canada;             definition of ‘‘related party’’ found in
Department to section 771(13), while         Preliminary Results of Antidumping          this provision is used for the purpose of
section 773(e)(4) applies only to the        Duty Administrative Review, 60 FR           disregarding certain related party
reporting of certain constructed value       42511, 42512 (Aug. 16, 1995) (Steel         transactions for inputs that are not at
data. Moreover, petitioner asserts, it is    from Canada). Third, the Department         arm’s length (773(e)(2)) and for
the Department that determines whether       examines whether there exists other         determining whether a major input
to collapse related parties.                 evidence indicating a significant           purchased from a related party was sold
   Department’s Position: For these final    potential for the manipulation of price     below cost (773(e)(3)). There is no
reviews, we have continued to collapse       or production. The types of factors the     explicit provision in the Act regarding
the original eight members of the            Department examines include: (1) The        whether companies should be
‘‘Queen’s Flowers Group.’’ Additionally,     level of common ownership; (2) the          considered as separate or as a single
for the other twelve companies under         existence of interlocking officers or       enterprise for margin calculation
consideration, we have determined that       directors (e.g., whether managerial         purposes. See Roses from Ecuador at
they should be collapsed with the            employees or board members of one           7040. However, it is the Department’s
original eight members of the Queen’s        company sit on the board of directors of    practice to use section 771(13) in its
Flowers Group.                               the other related parties); and (3) the     collapsing analysis. This use of 771(13)
   As we have noted elsewhere, ‘‘[i]t is     existence of intertwined operations.        is consistent with how the Department
the Department’s long- standing practice     ‘‘The Department need not show all of       defines a related party for purposes of
to calculate a separate dumping margin       these factors exist in order to collapse    determining whether related party sales
for each manufacturer or exporter            related entities, but only that the         in the home market will be used for
investigated.’’ Final Determinations of      companies are sufficiently related to       purposes of calculating FMV. See 19
Sales at Less than Fair Value: Certain       create the possibility of price             CFR 353.45(a) (1994).
Hot-Rolled Carbon Steel Flat Products,       manipulation.’’ Japanese Steel.                Further, contrary to Asocolflores’
Certain Cold-Rolled Carbon Steel Flat           In examining the questionnaire           argument, the Department uses section
Products, and Certain Corrosion-             responses for several of the companies      771(13) for purposes of collapsing in all
Resistant Carbon Steel Flat Products         involved in these administrative            cases, regardless of whether constructed
From Japan, 58 FR 37154, 37159 (July         reviews, we noticed the existence of        value forms the basis of FMV. Thus, in
9, 1993) (Japanese Steel). Because the       numerous interrelationships (via            both Roses from Ecuador and Lighters,
Department calculates margins on a           ownership and otherwise). We asked for      the issue before the Department was not
company-by-company basis, it must            additional information concerning these     merely whether to collapse sales in the
ensure that it reviews the entire            relationships and, as a result, have        United States for the companies in
producer or reseller, not merely a part      concluded that these companies should       question. Rather, the issue was whether
of it. The Department reviews the entire     be collapsed.                               to collapse the companies and treat
entity due to its concerns regarding            First, the companies within the          them as one entity for all margin
price and cost manipulation. Because of      Queen’s Flowers Group are related to        calculation purposes.
this concern, the Department examines        each other within the meaning of               Asocolflores argues that some of the
the question of whether reviewed             section 771(13) of the Act. See             eight companies (as well as the
companies ‘‘constitute separate              Memoranda From Michael F. Panfeld to        additional twelve companies which the
manufacturers or exporters for purposes      Holly A. Kuga, dated August 3, 1995         Department collapsed into the Queen’s
of the dumping law.’’ Final                  and February 1, 1996. Second, these         Flowers Group) have no common board
Determination of Sales at Less than Fair     companies have similar production           members and, as such, the interlocking
Value; Certain Granite Products from         facilities. All of these companies          boards criterion was not satisfied.
Spain, 53 FR 24335, 24337 (June 28,          produce flowers in a similar manner         However, in examining this factor, we
1988). Where there is evidence               and, thus, the companies would not          are looking at the degree of interlocking
indicating a significant potential for the   need to engage in retooling to shift        boards, not the existence of fully-
manipulation of price and production,        production. Third, other proprietary        integrated boards. As with many of the
the Department will ‘‘collapse’’ related     evidence indicates that there is a          collapsing factors we consider, we
companies; that is, the Department will      significant potential for price or cost     examine the degree to which the
treat the companies as one entity for        manipulation among these companies.         companies are intertwined with each
purposes of calculating the dumping          In general, this additional evidence        other. For the Queen’s Flowers Group,
margin. See Nihon Cement Co., Ltd. v.        consists of: (1) The existence of           we conclude that the number of
United States, Slip Op. 93–80 (CIT May       interlocking managers, officers and         interlocking boards, officers and
25, 1993).                                   directors; (2) the shipment of subject      managers is such that this factor
   To determine whether companies            merchandise through common                  supports a finding that the companies
should be collapsed, the Department          importers in the United States; (3) use     should be treated as a single entity.
makes three inquiries. First, the            of common office space and shared              Our finding that shifting of
Department examines whether the              costs; and (4) intercompany                 production could occur in the Queen’s
companies in question are related            transactions. See Memorandum from           Flowers Group does not, as suggested by
within the meaning of section 771(13) of     Michael F. Panfeld to File dated            Asocolflores, mean that companies will
the Act. See Lighters From Thailand at       November 17, 1994, and Memorandum           ‘‘dig up the plant and move it to another
42854               Federal Register / Vol. 61, No. 161 / Monday, August 19, 1996 / Notices

farm.’’ Rather, our concerns over            companies in the Queen’s Flowers              ‘‘uncooperative.’’ The FTC cites Allied
shifting production refer to a longer        Group. Asocolflores refers to its             Signal v. United States, 996 F.2d 1185,
period of time; thus, if Company A           comments submitted on July 26, 1995           1192 (Fed. Cir. 1993), Chinsung Indus.
receives a lower margin than Company         rebutting the 23 deficiencies outlined in     Co. v. United States, 705 F. Supp. 598,
B, we are concerned that Company A           the Department’s preliminary analysis         600 (CIT 1989), Pulton Chain Co., Inc.
would increase production of new             memo of December 5, 1994.                     v. United States, Slip Op. 93–202 (CIT
flowers to take advantage of a lower         Asocolflores asserts that those               October 18, 1993), and Pistachio Group
margin while Company B would, over           discrepancies fall into three broad           of Ass’n of Food Ind. v. United States,
time, reduce production due to its           categories: (1) Failures to provide           671 F. Supp. 31, 40 (CIT 1987), as
higher margin. Alternatively, more of        factual information, (2) failures to          support for the Department’s
the production of Company A could be         identify related party transactions, and      application of BIA when the respondent
shifted to the U.S. market.                  (3) failures to identify certain companies    deliberately withholds information,
   We agree that sales to a common           as related parties. Asocolflores              attempts to direct the investigation
importer do not indicate an                  maintains that, if the Department             itself, or attempts to control the results
intercompany transfer, per se. However,      reexamines its analysis in light of the       of an investigation by supplying partial
for proprietary reasons, we find that        comments raised in its July 26, 1995          information. In this case, the FTC states,
these sales indicate cooperation and         submission, it will find that virtually no    the Department found that the Queen’s
intertwined operations between the           discrepancies exist and all factual           Flowers Group refused to cooperate or
companies in question. See                   information is now on the record.             otherwise significantly impeded the
Memorandum from Michael F. Panfeld           Furthermore, Asocolflores contends that       investigation and correctly rejected the
to Holly Kuga dated February 1, 1996.        the Department has improperly                 companies’ responses, assigning an
   We also find that shared office space     scrutinized the relationships among the       antidumping duty margin based on BIA.
is an appropriate factor to consider in      firms within the meaning of section           The FTC further asserts that
our analysis. While the sharing of office    771(13). Instead, Asocolflores contends,      Asocolflores is also incorrect in its
space does not, by itself, indicate that     the Department should apply section           claims that ‘‘there were no transactions
collapsing is appropriate, it does           773(e)(4). If the Department continues to     in Colombia implicating the U.S. price
indicate cooperation and intertwined         assign the eight companies a BIA              definition.’’ The FTC asserts that when
operations. Moreover, in addition to         margin, Asocolflores contends that there      two parties are related, the knowledge
sharing facilities, some of the firms also   is no basis for assigning a BIA margin        test is irrelevant.
shared costs associated with these           to the 12 additional companies believed          Asocolflores rebuts that the FTC offers
facilities and reported these shared costs   to have ‘‘strong ties’’ to the Queen’s        no facts or analysis showing that the
in their constructed value data. See         Flowers Group, maintaining that the           respondents failed to respond fully to
Memorandum from Michael F. Panfeld                                                         the questionnaire, that the respondents
                                             Department may only assign a BIA
to Holly A. Kuga dated February 1,                                                         should be faulted for not knowing
                                             margin to firms that fail to supply
1996. Thus, it weighs in favor of a                                                        which definition of related party to
                                             requested information. Asocolflores
collapsing determination.                                                                  apply, or that all of the firms are related
   Finally, we agree with Asocolflores       argues that the 12 companies fully
                                             responded to the questionnaires.              under either of the statutory definitions.
that we should not overlap factors in                                                      Asocolflores reiterates that 771(13) only
our collapsing analysis (i.e., common        Moreover, Asocolflores contends,
                                                                                           applies to the relationship between the
board members and sharing of sales and       several of the respondents either did not
                                                                                           importer and the exporter, not to the
marketing information).                      produce, export, buy, or sell subject
                                                                                           relationship between two exporters.
Notwithstanding this factor, our             merchandise or were not in existence
                                                                                           Asocolflores argues that there were no
analysis of this criterion remains           during the PORs.
                                                                                           sales in Colombia that would implicate
unchanged due to the reasons outlined           The FTC argues that the Department         USP. According to Asocolflores, the
in the two preceding paragraphs.             properly concluded that the Queen’s           sales to Agroindustrial del RioFrio were
Therefore, our conclusion to collapse        Flowers Group significantly impeded its       destined for third countries, while, for
these firms remains unchanged.               investigation. The FTC states that the        the other transaction at issue, the selling
   Our determination whether to              Department’s questionnaire was clear in       company was not aware of the ultimate
collapse is based on the totality of the     its request to identify related parties. To   destination of the product. According to
circumstances. See Certain Corrosion-        the extent that the Queen’s group failed      Asocolflores, the FTC cites no authority
Resistant Steel at 42512. We do not use      to do so, the FTC contends, the group         for its proposition that respondents are
bright-line tests in making this finding.    impeded the investigation. The FTC            ‘‘presumed to be aware of and comply
Rather, we weigh the evidence before us      argues that respondents are presumed to       with ITA practice and antidumping
to discern whether the companies are,        have knowledge of Departmental                law.’’
in fact, separate entities or whether they   practice and U.S. antidumping law, and           The FTC rebuts that the Department
are sufficiently intertwined as to           the Department’s questionnaire                determines whether parties are related
properly be treated as a single enterprise   provided adequate guidance. The FTC           based on 771(13), and section 773(e)(4)
to prevent evasion of the antidumping        also asserts that, to the extent that         applies only to the reporting of
order via price or cost manipulation.        respondents were uncertain in their           constructed value data. In responding to
Here, we find that such potential for        interpretation of the questionnaire, they     section A of the Department’s
manipulation exists for the group of 20      had access to legal counsel and               questionnaire, the FTC contends,
companies in the Queen’s Flowers             Department analysts. In the FTC’s view,       respondents cannot predict on what
Group. Therefore, we have collapsed          the Department attempted to determine         basis FMV will ultimately be calculated.
these companies and treated them as          the exact nature of the interrelationships    In the FTC’s view, the respondents’
one entity for purposes of these final       among the group members through               reporting on the basis of 773(e)(4) was
results.                                     multiple deficiency letters, but              at their own peril and the Department
   Comment 27: Asocolflores asserts that     respondents failed to respond                 was correct in rejecting responses based
the Department erroneously assigned an       appropriately and the Department              on only one of the related party tests.
uncooperative BIA rate to eight              correctly classified their responses as       The FTC asserts that, contrary to the
                    Federal Register / Vol. 61, No. 161 / Monday, August 19, 1996 / Notices                                 42855

claims of Asocolflores, all copies of the    has been found in the response of               Moreover, because these deficiencies
questionnaire contained the same             Queen’s Flowers de Colombia.                 derive from a pattern of unresponsive
question requiring respondents to               In addition, we initiated a review in     and insufficient responses, we conclude
identify related parties in Section A        each of the three periods on Flores          that the Queen’s Flowers Group
and, in any case, it was incumbent upon      Generales. We received a response from       impeded our investigation and consider
respondents to request clarification.        ‘‘Cultivos Generales (Flores Generales)’’    the group to be uncooperative.
Finally, the FTC maintains that, if the      for the fifth and the sixth review periods   Therefore, we are assigning the Queen’s
Department assigns a BIA rate to the         claiming ‘‘no shipments,’’ but no            Flowers Group a first-tier BIA in
original eight members of the Queen’s        response for the seventh period. As          accordance with Allied Signal v. United
Flowers Group, it should also apply this     such, we have assigned Flores Generales      States, 996 F.2d 1185, 1192 (Fed. Cir.
rate to the 12 additional companies to       a rate based on BIA for the seventh          1993), Chinsung Indus. Co. v. United
the extent that they are collapsed into      period. While investigating the              States, 705 F. Supp. 598, 600 (CIT
the group.                                   additional 12 companies in the Queen’s       1989), Pulton Chain Co., Inc. v. United
   Department’s Position: We have            Flowers Group, we asked Cultivos             States, Slip Op. 93–202 (CIT October 18,
reexamined the record for these final        Generales if it was related to ‘‘Cultivos    1993), and Pistachio Group of Ass’n of
results in light of the preceding            Generales (Flores Generales).’’ Cultivos     Food Ind. v. United States, 671 F. Supp.
comments, and have concluded that            Generales stated that it was the             31, 40 (CIT 1987).
members of the Queen’s Flowers Group         successor to Flores Generales, and, in          We agree with the FTC that the BIA
failed to respond to certain questions       effect, simply changed the name of the       rate should be applied to all 20
and to provide certain factual               company, keeping all ownership intact.       respondents. Because the Department
information, improperly reported             Had we known that these two entities         relies on respondents to voluntarily
certain cost items and failed to change      were one and the same, we would not          identify their related parties, failure to
those items when requested to do so,         have sent a supplemental questionnaire       do so, after repeated attempts to elicit
and presented a pattern of insufficient      to Cultivos Generales, because Flores        this information, must be seen as
responses, misleading information, and       Generales did not respond to our             impeding our investigation. Moreover,
contradictory statements.                    original questionnaire. Therefore, we are    post-preliminary cooperation by
                                             disregarding Cultivos Generales’’ June       members of the group for which we did
   Specifically, Flores Canelon failed to
                                             13, 1995, and July 28, 1995 submissions      not initiate reviews does not override
distinguish between production               and are assigning it a BIA rate for the      previous deficiencies by the initiated
expenses (which are not amortizable)         seventh POR as a successor to Flores         members in this regard. In this case, we
and pre-production expenses (which are       Generales.                                   elicited post-preliminary ownership
amortizable) of all types of cut flowers        Other deficiencies exist that support     information to allow previously
for January and February of 1992. Flores     our use of BIA. However, a discussion        uninitiated companies an opportunity to
Canelon also failed to distinguish           of these conditions is impossible in a       provide evidence that they should not
between production and pre-production        public notice, due to their highly           be collapsed with the Queen’s Flowers
expenses for farm overhead for the sixth     proprietary nature. For a discussion of      Group, since, to do otherwise would
and the seventh periods. Instead,            these issues, see Memorandum from            deny these firms due process. However,
Canelon improperly amortized all of          Laurie Parkhill to Holly A. Kuga dated       these firms provided evidence that they
these expenses. In this case, we notified    June 28, 1996. In this memorandum, we        were related and intertwined to the
the respondent in a supplemental             reexamine the record in light of the         extent that collapsing was warranted. In
questionnaire that there was a problem       FTC’s and Asocolflores’ comments and         addition, they provided additional
with its data and that failure to correct    have revised our analysis accordingly.       evidence of links among the original
the error might result in our use of BIA.    We concede that certain deficiencies         eight members. Therefore, although
Flores Canelon made no changes in its        identified in the December 5, 1994           these firms cooperated after the
data and provided only a brief narrative     analysis memorandum are no longer a          preliminary results, this cooperation
describing the period over which             factor in our analysis and that certain      only resulted after we preliminarily
various assets were amortized. Flores        other deficiencies have been corrected.      found the Queen’s Flowers Group, as a
Canelon referred the Department to           However, serious deficiencies remain in      whole, to be uncooperative and assigned
attachments in its original response for     the responses of the Group and all           it a margin based on first-tier BIA. For
further explanation. However, Flores         information is not on the record as          these final results, we, therefore, are
Canelon failed to provide a narrative        Asocolflores contends. In addition, new      applying the first-tier BIA margin to all
‘‘road map’’ of these attachments in         deficiencies have been identified. These     entities collapsed within the group.
either of its responses, as requested by     deficiencies fall into two groups: those        Comment 28: Asocolflores asserts that
the questionnaire. Lacking a road map        that we had identified previously in a       the Department lacks a factual and a
of Canelon’s methodology, we                 supplemental questionnaire and for           legal basis for collapsing the Santa
attempted to determine on our own            which an opportunity to correct the          Helena Group of companies and the
whether Canelon’s methodology made           deficiency was afforded through              Florex Group of companies.
sense. However, numerous                     supplemental responses, as well as           Asocolflores contends that, before the
discrepancies prevented this                 deficiencies which we identified in          Department can consider collapsing two
conclusion. See Memorandum from              supplemental responses solicited after       companies, it must first show that they
Laurie Parkhill to Holly A. Kuga dated       the preliminary results. Most significant    are related companies. Asocolflores
June 28, 1996. Flores Canelon’s failure      of these is that not all U.S. sales data     maintains that, when FMV is based
to properly amortize its expenses is a       and CV data exists on the record. These      upon constructed value and the
serious deficiency. Because constructed      deficiencies are such that we are unable     Department is considering whether to
value forms the basis of FMV in this         to use the responses of the Group for        collapse sales as well as costs, then the
case, incorrect amortization of costs will   calculating margins. Therefore, for the      related party definition in section
lead to too little or too much cost in       final results of review, we have assigned    771(13) and the definition contained in
constructed value and, thus, an              the Queen’s Flowers Group a BIA rate         773(e)(4) must be satisfied for parties to
inaccurate FMV. A similar deficiency         for each POR.                                be considered related. Asocolflores
42856               Federal Register / Vol. 61, No. 161 / Monday, August 19, 1996 / Notices

maintains that the relationships             separate deposit rates, the FTC urges the   that the Florex Group and the Santa
between these two groups fail to meet        issuance of supplemental questionnaires     Helena Group should be collapsed, we
either test. Asocolflores proposes that      to determine whether any new                have assigned the collapsed enterprise a
the Department establish a higher            relationships have formed in the            combined cash deposit rate for future
threshold for collapsing related parties     interim.                                    entries.
in cases where the relationships are            Department’s Position: For purposes        Comment 29: Asocolflores asserts that
tenuous at best. Notwithstanding this,       of these final results, we have collapsed   the Department unfairly assigned a
Asocolflores argues that the Department      the Florex Group and the Santa Helena       cooperative BIA rate to the Santa Helena
wrongly concluded that the five criteria     Group. See generally our response to        Group, given that Santa Helena worked
were satisfied in its collapsing analysis.   comment 26 for the criteria used in this    to the best of its ability in responding to
Asocolflores asserts that the record lacks   analysis.                                   the questionnaire, it had limited
evidence that controverts the two               Respondent’s claims to the contrary      resources and little experience in the
groups’ certified statements that they       notwithstanding, we find that the           review process. Furthermore,
operate as separate and independent          evidence supports the conclusion that       Asocolflores contends that Santa Helena
entities. Asocolflores argues that the       the Florex and Santa Helena Groups are      corrected its acknowledged errors in its
existence of common board members            intertwined to a degree that warrants       crop adjustment methodology and
cannot be sufficient to prove that two       treating them as a single enterprise.       requests that the Department use the
respondents actually share marketing         First, we find that the Florex Group and    corrected information in its final results.
and sales information. Because               the Santa Helena Group are related to         The FTC argues that, at some point,
interlocking boards of directors is a        each other within the meaning of            the Department must close the
separate factor, it should not overlap       section 771(13) of the Act. See             administrative record. In the FTC’s
with the Department’s consideration of       Memorandum From Michael F. Panfeld          view, Santa Helena had an adequate
whether two respondent’s share               to Holly Kuga, dated February 1, 1996.      opportunity to correct its submission
marketing and sales information.             Second, these groups have similar           and allowing Santa Helena to revise its
Moreover, Asocolflores asserts the high      production facilities. Both groups          response after the preliminary results
margins assigned to the Santa Helena         produce flowers in a similar manner         would invite a wholesale request by
Group (see the following comment) and        and, thus, the groups would not need to     other respondents to correct their
weighted into the Florex Group’s low         engage in retooling to shift production.    responses and deny interested parties
margins result in a significant deposit      Third, there exists other proprietary       the opportunity to comment or conduct
rate for the Florex Group, which             evidence indicating that there is a         verification of the new data. As support,
represents a manifest injustice. Finally,    significant potential for price or cost     the FTC cites Olympic Adhesives, Inc. v.
                                             manipulation among these groups. In         United States, 899 F.2d at 1571,
Asocolflores maintains that, if the
                                             general, this additional evidence           Ansaldo Componenti, S.p.A. v. United
Department finds that the two groups
                                             consists of: (1) The existence of           States, 628 F. Supp. 198, 204 (CIT
should remain collapsed in its final
                                             interlocking managers, officers and         1986), and Mantex, Inc. v. United
results, it should assign separate deposit
                                             directors; (2) the shipment of subject      States, 841 F. Supp. 1290, 1310 (CIT
rates for each group because one
                                             merchandise through a common                1993). Finally, the FTC notes that Santa
company in the Santa Helena Group no
                                             importer in the United States; and (3)      Helena had both experienced counsel
longer has any ties to firms in the Florex
                                             intercompany transactions. See              and experience in two previous
group.
                                             Memoranda to the File dated November        administrative reviews.
   The FTC rebuts that section 773(e)(4)     15, and November 21, 1994, and the            Asocolflores rebuts that the
applies when reporting constructed           Memorandum from Michael F. Panfeld          Department chose to reopen the
value and does not preclude collapsing       to Holly A. Kuga dated February 1,          administrative record with its
for purposes of calculating a weighted-      1996.                                       supplemental questionnaire to the
average margin for which section                We agree with Asocolflores that we       Florex Group (which the Department
771(13) is the applicable section of the     should not overlap factors in our           had collapsed with the Santa Helena
statute. The FTC contends that all five      collapsing analysis (i.e., common board     Group). Contrary to the FTC’s concerns
criteria of the collapsing test have been    members and sharing of sales and            regarding the submission of post-
met and, in particular, the Department’s     marketing information). We also agree,      preliminary corrections, Asocolflores
finding that the respondents produce         after review of respondents’ comments,      maintains that acceptance of Santa
the same merchandise, engaged in             that while shifting of production has not   Helena’s data would not create a general
intercompany transactions, and have          yet occurred, the potential to shift        precedent. Asocolflores also contends
already shifted production is sufficient     production still remains.                   that the Department requested
cause for alarm. Moreover, FTC points        Notwithstanding these factors, our          inflationary adjustments from all
to the fact that the questionnaire           analysis of these criteria remains          respondents, not just Santa Helena.
responses in these reviews were              unchanged due to the additional reasons     Finally, Asocolflores states that Santa
submitted after the Department had           outlined in the Memoranda to the File       Helena’s response was prepared by a
concluded that these companies were          dated November 15, and November 21,         new company, which did not have
sufficiently related to be collapsed in      1994, and the Memorandum from               previous experience in the review
the Fourth Review. According to the          Michael F. Panfeld to Holly A. Kuga         process.
FTC, any assumptions the Florex Group        dated February 1, 1996.                       Department’s Position: We agree with
made regarding the Santa Helena Group           Finally, we have determined that the     the FTC that Santa Helena’s submission
were thus made at the Group’s own            factual information regarding the           of corrected data is untimely and have
peril. Finally, the FTC argues that to       current legal status and ownership of       not considered the data for these final
assign separate deposit rates for the        firms in the Santa Helena Group were        results. Although supplemental
Santa Helena Group and the Florex            untimely submitted. See 19 CFR              questionnaires were issued to certain
Group would undermine the purpose of         353.31(a)(1)(ii) (1994). We have            respondents after the preliminary
collapsing related parties. If the           removed this information from the           results, they were not issued to
Department considers establishing            record. As the record before us indicates   companies that were preliminarily
                     Federal Register / Vol. 61, No. 161 / Monday, August 19, 1996 / Notices                                 42857

assigned a BIA margin, such as Santa           asks the Department to convert Flores       they purchased the assets of Majui and
Helena. Prior to issuance of the               Mocari’s data to bunches in its final       Sunset Farms. However, at this late
preliminary results, we notified Santa         results. Asocolflores further requests      stage in the proceeding, we were not
Helena that its data diskettes were being      that the Department recheck Cultivos        requesting information from Calima and
rejected due to several problems in a          Miramonte’s packing expenses and            Roble because they were successors to
supplemental questionnaire, and we             reverse the adjustment the Department       Majui and Sunset Farms; rather, we
identified a critical flaw: the integrity of   made to these expenses for the              were soliciting their responses to
protected formulas in its diskette had         preliminary results.                        determine the nature of their
been compromised, which indicated                 The FTC requests that the Department     relationships with the Queen’s Flowers
tampering with our required format. See        adjust Cultivos Miramonte’s data by         Group. See our response to Comments
letter to Santa Helena Group from              converting it to a per-stem basis.          26 and 27.
Division Director dated August 15,                Department’s Position: We agree with        In the absence of record evidence to
1994.                                          Asocolflores that we improperly             the contrary, we must assume that the
   With regards to the faulty crop             combined the sales and cost data for one    firms’ operations were ‘‘essentially
adjustment methodology, we agree with          flower type in the fifth review. Since      similar.’’ To conclude otherwise would
the FTC that Santa Helena had ample            converting stems to bunches, as             reward successor companies by
opportunity to correct its data. We note       opposed to the reverse, would not alter     absolving them from their inherited
that we notified a large number of             the results of our margin calculations,     antidumping duty liabilities and
respondents that there were problems           we chose the methodology with the           encourage companies that have been
with their crop adjustment                     least amount of burden. Therefore, for      sold not to respond to our requests for
methodologies prior to issuance of the         these final results, we have converted      information. Therefore, independent of
preliminary results. We assigned a             Cultivos Miramonte’s data from a per-       our decision to assign BIA to these firms
second-tier BIA rate to all firms that         bunch basis to a per-stem basis as the      as a result of their inclusion in the
failed to correct their data or to provide     FTC suggested. In addition, we have         Queen’s Flowers Group, we have
narrative explanations, as Santa Helena        rechecked the packing expenses and          assigned a margin based on BIA to
failed to do. Thus, our treatment of           found no flaws in our calculations.         Calima and Roble as individual
Santa Helena was not unfair.                      Comment 32: Asocolflores asserts that    companies, due to the failure to respond
   Finally, we have found that we              Flores Calima (Calima) and Flores el        to our questionnaire. We note that this
initiated reviews of a member of the           Roble (Roble) are not successors to         analysis was not a factor we considered
Florex Group, S.B. Talee de Colombia           Flores el Majui and Sunset Farms,           in our analysis of whether to assign
(albeit with a minor spelling error), it       respectively. Therefore, Asocolflores       margins based on BIA to the Queen’s
received our questionnaire for the             contends that Calima and Roble should       Flowers Group.
seventh POR, and it failed to respond to       not be assigned a deposit rate based on        Comment 33: Flores San Juan argues
that questionnaire. Moreover, in               margins assigned to Flores el Mujui and     that the Department incorrectly limited
comments filed on April 12, 1995,              Sunset Farms. Asocolflores cites the        the amount of the firm’s interest income
Flores de Salitre states that S.B. Talee de    Department’s four-point successorship       allowed as an offset to constructed value
Colombia did have some U.S. sales              test outlined in Brass Sheet and Strip:     to the amount of interest expense
during the seventh POR. However, these         Final Results of Antidumping Duty           included in constructed value. Flores
sales were not reported by any member          Administrative Review 57 FR 20460           San Juan contends that all of its income
of the Florex group. For this, and the         (May 13, 1992) (Brass Sheet), and           is attributable to short-term working
aforementioned reasons, we continue to         suggests that an examination of the         capital investments related to
assign the Santa Helena sub-group (of          evidence as it relates to these firms       production; therefore, the respondent
the Florex Group) a margin based on            demonstrates that none of these four        contends, the Department’s policy
cooperative BIA.                               points has been met.                        directs that all such income qualifies for
   Comment 30: Jardines de los Andes              The FTC rebuts that neither Majui nor    inclusion in the offset to the interest
argues that it should be withdrawn from        Sunset Farms submitted timely               expense. However, respondent states,
the preliminary ‘‘all others’’ rate since it   information. Thus, the FTC contends,        because the firm is largely capitalized
has been revoked under the Flores              the Department does not have sufficient     through shareholder equity rather than
Colombianas Group.                             information to apply the successorship      with debt, it has only minimal financial
   Department’s Position: We agree that        test.                                       expenses. Consequently, in Flores San
Jardines de los Andes has been revoked            Department’s Position: We agree with     Juan’s view, the Department’s ‘‘cap’’ is
and that the Department inadvertently          the FTC. Although we have a response        unfair because the firm does not receive
assigned it the all others rate. See Fourth    from Calima, we have no response from       as much benefit as a company that
Review. Therefore, there are no final          Majui. Similarly, we have a response        chooses to capitalize largely through
results for this company for these             from Roble, but not from Sunset Farms.      short-term debt. Flores San Juan further
review periods.                                Because we initiated a review for the       states that there is no rational basis for
   Comment 31: Asocolflores asserts that       seventh POR for Majui and Sunset            treating the working capital income of
the Department erred when it combined          Farms, and did not receive a response       one producer differently from the
the sales and cost data, for sales of          from these firms, we have assigned          working capital income of another
chrysanthemums, of Cultivos                    Majui and Sunset Farms a margin based       producer solely because of the way in
Miramonte and Flores Mocari to                 on first-tier BIA. See our response to      which the companies are capitalized.
calculate a weighted-average margin for        Comments 55 and 57. Calima and Roble        Flores San Juan argues in addition that,
the Miramonte Group. Asocolflores              failed to notify us before we published     because its interest income is directly
asserts that Cultivos Miramonte                our preliminary results that, during the    related to production, the firm’s true
reported its data on a per-bunch basis,        seventh POR, they had purchased the         cost of production in fact is lowered by
while Flores Mocari reported its data on       assets of these firms. Since issuance of    its interest income. Flores San Juan
a per-stem basis. According to                 the preliminary results, we solicited and   concludes that it is appropriate for the
Asocolflores, this severely understates        received a response from Calima and         Department to allow the full offset for
per-unit U.S. sales prices. Asocolflores       Roble. The responses demonstrated that      interest income and not limit it to the
42858               Federal Register / Vol. 61, No. 161 / Monday, August 19, 1996 / Notices

level of interest expenses respondent        in either case, we have applied the six         Comment 37: Flores las Caicas states
incurred.                                    criteria explained in the BACKGROUND         that the Department’s disclosure
   Department’s Position: Consistent         section of this notice. We find that both    memorandum indicates that the packing
with our past practice, we have              respondents failed to meet one of these      and indirect selling expenses it reported
permitted Flores San Juan to offset its      criteria in that they did not provide        in Table 2 were higher than those it
interest expense with short-term interest    supporting documentation for the             reported in Table 1. Flores las Caicas
income related to operations, but only to    alleged clerical errors. Therefore, we       notes that the problem did exist on an
the extent that interest expenses are        have not made the changes requested.         earlier submission but was corrected in
incurred by Flores San Juan. As part of         Comment 35: Agromonte Ltda. claims        a supplemental submission dated
general expenses for constructed value,      that the Department appears to have          August 30, 1994. Flores las Caicas
we include an amount for interest            deleted sales volumes sold to customer       believes that the Department analyzed
expense. It is the Department’s normal       01 for standard carnations in the fifth      the wrong diskettes and requests that
practice to allow short-term interest        review for the months of March, April,       the Department base its final results on
income to offset financing costs only up     and May 1991 and requests that the           the data submitted on August 30, 1994.
to the amount of such financing costs.       Department ensure that its calculations         The FTC argues that Flores las Caicas
See, e.g., Porcelain-on-Steel Cooking        reflect these sales.                         did not alert the Department of the
Ware From Mexico; Final Results of              Department’s Position: We agree that      modification until July 21, 1995. See
Antidumping Duty Administrative              the sales volumes were missing from          Asocolflores Public Case Brief at 2.
Review, 60 FR 2378, 2379 (Jan. 9, 1995).     our preliminary calculations for the         Therefore, the FTC contends that the
The Act specifically requires that we        particular months stated above for           Department is under no obligation to
include various costs, such as material      importer 01. Our review of the record        modify its preliminary results.
and fabrication, in calculating              indicates that the data were missing on         Department’s Position: We requested
constructed value. Were we to deduct         both sets of diskettes respondent            supplemental information from Flores
the full amount of claimed interest          submitted to the Department on July 8,       las Caicas, and it responded in a timely
income, we would not only offset             1994, but the sales volumes did appear       manner with a supplemental response
interest expense but we would                in the Table 1 printout for importer 01      accompanied by revised diskettes.
effectively be offsetting material and       in the company’s sections C and D            Although we neglected to use the
fabrication costs as well. Therefore, to     questionnaire response. Therefore, we        revised diskettes in our analysis for the
avoid reducing costs not related to          have corrected the error using the           preliminary results, we have based our
interest expenses, we have capped the        information provided in the response         final results on the data Flores las
deduction for interest income at the         and recalculated Agromonte’s weighted-       Caicas submitted on the revised
level of interest expense. See section       average margin.                              diskettes.
773(e)(1)(A) of the Act.                        Comment 36: Agromonte Ltda. states           Comment 38: Flores de Suesca
   Comment 34: Flores San Juan and the       that the preliminary results list ‘‘Flores   disagrees with the Department’s
Bojaca Group disagree with the               Agromonte’’ as a company the                 preliminary decision to apply a non-
Department’s use of the higher figure to     Department could not locate and as to        cooperative, first-tier BIA rate to its
reconcile discrepancies in Table 1 and       which the ‘‘all other’’ rate would apply.    transactions because it did not respond
2 of their responses with respect to         Agromonte Ltda. states that, to the best     to the Department’s questionnaire.
packing and indirect selling expenses.       of its knowledge, there is no such           Flores de Suesca argues that it did
   Flores San Juan claims that it            company as ‘‘Flores Agromonte.’’             respond as part of the Toto Flowers
erroneously reported packing expenses        Therefore, to avoid any possible             Group, and that the Department
for all markets instead of packing           confusion at Customs, Agromonte Ltda.        published a preliminary rate for the
expenses for the U.S. market in Table 2      requests that the Department terminate       group, which included Flores de
of its responses. In Table 1 of its          its initiation of a review of ‘‘Flores       Suesca.
response, Flores San Juan contends, it       Agromonte.’’                                    The FTC contends that Asocolflores
reported another lower figure which it          The FTC argues that Asocolflores          certified to the CIT in 1989 that there
claims to be the correct figure. Flores      certified to the existence of a Flores       were two companies named Flores de
San Juan concludes that the Department       Agromonte and an Agromonte Ltda. in          Suesca and Flores Suesca (FTC Public
should reconcile the packing expenses        a 1989 submission to the CIT. See FTC        Request for Review (1993–94)).
in Tables 1 and 2 by including in Table      Public Request for Review (1993–94) at       Therefore, to the extent that the
2 only those packing expenses                Ex. 2 (March 31, 1994). Because there is     Department located a company, Flores
respondent reported in Table 1.              no information confirming that Flores        Suesca, that did not respond to the
   The Bojaca Group claims that the          Agromonte does not exist, the FTC            Department’s questionnaire, the FTC
values for packing expense and indirect      contends that the Department should          believes that the preliminary results
selling expense reported in Table 1 of its   continue to assign the company a rate        were correct.
response are the correct values as           based on BIA in its final results.              Department’s Position: Flores de
opposed to the values reported in Table         Department’s Position: Because            Suesca responded to the Department’s
2 which the Department used to               Asocolflores certified to the existence of   questionnaire as part of the Toto
reconcile the two tables. Respondent         a Flores Agromonte in the above-             Flowers Group. Our record indicates
suggests that the Department use the         referenced document, and there is no         that Flores Suesca is a variant name for
values in Table 1 to reconcile the           conclusive evidence on the record            Flores de Suesca, as reflected in our
packing expenses and indirect selling        indicating that Flores Agromonte does        preliminary results notice. We
expenses in tables 1 and 2.                  not exist, we will instruct Customs to       inadvertently assigned Flores de Suesca
   Department’s Position: Since we           collect cash deposits on imports from        a BIA rate in the preliminary results as
received both Flores San Juan and the        Flores Agromonte equal to the ‘‘all          an individual company, as well as a
Bojaca Group’s requests that we correct      others’’ rate of 3.10 percent from the       calculated rate for the Toto Flowers
their responses after publication of our     LTFV investigation (not BIA as stated by     Group. In these final results, we
preliminary results and the alleged          the FTC in its comment) because we           calculated a rate for the Toto Flowers
errors were not apparent from the record     could not locate the firm.                   Group which includes Flores de Suesca.
                    Federal Register / Vol. 61, No. 161 / Monday, August 19, 1996 / Notices                                42859

   Comment 39: Flores de la Sabana S.A.      its consolidated response, and asks that     accounts amounts it incorrectly
argues that the Department should not        the Department use the consolidated          classified in previous months. Also,
assign BIA to Sabana Flowers. Flores de      tables Flores de la Sabana submitted.        Clavecol explains, the same numbers in
la Sabana claims that there is no firm          The FTC agrees that, to the extent that   the ‘‘Crop Adjustment’’ section of its
named ‘‘Sabana Flowers.’’ Flores de la       the Department agrees that these             response may be negative because the
Sabana claims that it received the           companies should be collapsed, the           firm used this section to calculate the
questionnaire intended for Sabana            Department should correct the errors         net adjustment to actual monthly
Flowers and that it acknowledged the         described above. The FTC notes,              expenses fully reported in other lines of
receipt by facsimile message. Flores de      however, that respondents may not            the response. Clavecol contends that the
la Sabana also claims that in that           unilaterally consolidate data.               Department never asked for clarification
message it noted that ‘‘Sabana Flowers’’        Department’s Position: We have            of why negative values occurred.
does not exist. Flores de la Sabana notes    reviewed the record and conclude that        Clavecol argues that similar
that it responded to the Department’s        Flores de la Sabana and Roselandia S.A.      circumstances pertained in the LTFV
requests for information and that the        are related and should have been             investigation of Roses, and that the
Department calculated margins for it.        collapsed. While we used the                 Department verified such negative
Flores de la Sabana requests, therefore,     consolidated tables submitted by Flores      values as correct in that investigation.
that the Department remove ‘‘Sabana          de la Sabana in our preliminary results,     Clavecol asks that the Department
Flowers’’ from its list of BIA companies     we published the rate as if it were          reverse its decision as to the treatment
so as to avoid any potential confusion       applicable only to Flores de la Sabana       of negative values in the spreadsheet
with Flores de la Sabana or Flores de la     and listed Roselandia S.A. as a non-         because the Department’s current
Sabana’s related importer, Sabana            shipper during the PORs. We should           practice, as applied to Clavecol,
Farms.                                       have listed both companies under the         overstates Clavecol’s costs.
   The FTC argues that Asocolflores          entity ‘‘Sabana Group.’’ We have                The FTC argues that the Department
submitted a certified list of producers to   corrected this oversight for the final       should continue to re-classify negative
the CIT that included both Flores de la      results.                                     values as zero. The FTC contends that
Sabana and Sabana Flowers. The FTC              Comment 41: Flores de la Sabana           allowing respondents to report
urges the Department to continue to          argues that the Department should not        accounting adjustments in this manner
assign Sabana Flowers a BIA rate in its      have disallowed discounts received           would invite manipulation of data. The
final results absent information that this   from suppliers in its preliminary results    FTC further claims that verification in
company no longer exists.                    because they were reported as ‘‘other        another case should not affect the
   Department’s Position: We sent a          financial income’’ in the spreadsheet.       Department’s analysis in this case.
questionnaire to both Flores de la           Flores de la Sabana contends that, at a         Department’s Position: We disagree
Sabana and Sabana Flowers. The               minimum, the Department should allow         with Clavecol that we should not have
address that we used to send the             the discounts as an offset to cost           changed the negative values to zero.
questionnaires to Sabana Flowers differs     somewhere in the spreadsheet, if not         Although Clavecol submitted a narrative
from the address in the response and on      necessarily as an offset to financial        explanation of the negative numbers in
the letterhead of Flores de la Sabana.       expense, or else costs will be overstated.   its post-preliminary supplemental
From the international courier, we              The FTC argues that the Department        response, there was no evidence on the
received a confirmation of receipt of the    should reject this adjustment if Flores      record that supports its explanation. See
questionnaire at the address we used for     de la Sabana has not established that the    our response to comment 34, above.
Sabana Flowers. See Memorandum to            discount is directly related to specific        With regard to the negative numbers
File by Mark Ross dated November 8,          material or service purchases.               that allegedly are the result of
1995. In addition, Asocolflores provided        Department’s Position: Flores de la       accounting adjustments, we cannot
a certified list of producers to the CIT     Sabana received the discounts it             determine, based on the record, whether
that lists Sabana Flowers as a               reported on purchases of supplies.           Clavecol’s explanations are reasonable
Colombian flower producer. Therefore,        However, Flores de la Sabana did not         or accurate. Clavecol’s original response
because there is no conclusive evidence      submit, either in the spreadsheet or in      describes year-end adjustments that
on the record indicating that Sabana         its narrative responses, the requisite       appear to be made in order to report the
Flowers does not exist, we have              information for us to properly assign        actual expenses (see Clavecol’s August
continued to treat Flores de la Sabana       these discounts to costs of the              3, 1994 response to section D at 2),
and Sabana Flowers as two separate           applicable flower types. In fact, we         though no reference is made to negative
existing entities, and we have applied a     cannot determine from the record             cost. We examined the response with
first-tier BIA rate to imports into the      whether respondent included discounts        regard to the negative numbers, and it
United States by Sabana Flowers during       on supplies applicable to non-subject        appears that some of the negative
the PORs and for future deposits of          merchandise in the figure. In addition,      numbers are year-end adjustments, but
antidumping duties.                          we do not apply these discounts as an        these figures are not fully explained.
   Comment 40: Flores de la Sabana           offset to financial expense because they     Also, we could not discern any pattern
argues that the rate applicable to Flores    are not financial income. Therefore, we      in the placement of the negative
de la Sabana should also apply to            have not accounted for these discounts       numbers that would allow us to
Roselandia S.A. Flores de la Sabana          in our calculations for the final results.   determine the nature of the negative
contends that it responded as the               Comment 42: The Claveles                  numbers.
Sabana Group, consisting of Roselandia       Colombianas Group (Clavecol) argues             Finally, we cannot tell whether the
S.A. and Flores de la Sabana. Flores de      that the Department should not have          adjustments Clavecol describes are
la Sabana alleges that, while Roselandia     replaced negative values reported in the     limited to either the same POR or the
did not sell subject merchandise, it         company’s section D response with zero       same types of expenses. We are
produces some carnations and cuttings        values. Clavecol explains that some          concerned that costs might be shifted
which it sold to Flores de la Sabana.        numbers may be negative because it           from materials, labor, and overhead
Flores de la Sabana also expresses           made accounting adjustments in one           expenses to general and administrative
concern that the Department did not use      month to reclassify into the appropriate     expenses, or that costs might be shifted
42860               Federal Register / Vol. 61, No. 161 / Monday, August 19, 1996 / Notices

from one month to another. Although             The FTC argues that Santa Rosa             Second, Bojaca contends that the
we use an annually-averaged                  admitted to deviating from the reporting      Department overallocated these
constructed value as FMV, the shifting       format in the questionnaire. Thus, the        financial expenses to subject
of costs from one month to another           FTC contends, the Department’s                merchandise because it did not have
implied by these ‘‘year-end                  adjustment to the response was justified      accurate total sales data. Bojaca argues
adjustments’’ may distort costs because      because Santa Rosa did not provide the        that the Department should either use
of the high degree of fluctuation in the     information in the format requested.          data provided by the group in its
peso-to-dollar exchange rate.                   Department’s Position: We                  inflation-adjustment response submitted
   We agree with the FTC that                reexamined Santa Rosa’s submissions           after the preliminary results of review,
verifications in other cases have no         and found that Santa Rosa’s original          or rely upon the Universal Flowers data
bearing on determining whether a             submission and supplemental response          Bojaca originally submitted.
response is reasonable in the instant        adequately described its pre-production          The FTC counters that, because
reviews. Therefore, in the absence of        cost methodology. We also found that,         Bojaca did not report its financial
record evidence indicating otherwise,        although Santa Rosa’s methodology             expenses as required in the
and because we are concerned about the       deviated from the format we identified        questionnaire, the Department is not
possibility of manipulation of the firm’s    in our supplemental questionnaire, it         required to use the unsolicited, post-
cost response implied in the negative        produces the same results and does not        preliminary, corrected data Bojaca
numbers, we have converted the               distort costs. Therefore, we have used        submitted and, therefore, the
negative numbers allegedly due to            Santa Rosa’s original cost response with      Department is justified in calculating
accounting adjustments reported in           respect to its crop adjustment                financial expenses on the basis of BIA.
Clavecol’s response to zeroes for the        methodology.                                     Department’s Position: We agree with
purpose of calculating the margins.             Comment 44: Santa Rosa argues that         the FTC. Bojaca failed to supply the
   With regard to the negative numbers       the Department should not list Floricola      group-wide sales revenue and financing
                                             la Ramada as a company which will             expense data in its original response.
we found in Clavecol’s crop adjustment
                                             receive the ‘‘all others’’ rate. Santa Rosa   We requested that Bojaca correct its
methodology, we found that Clavecol’s
                                             states that Floricola la Ramada is a          sales revenue and financial expense
original submission adequately
                                             member of the Santa Rosa Group and            data in a supplemental questionnaire,
described its methodology. We also
                                             was listed as such in the Department’s        and, again, Bojaca failed to do so. Under
found that, although Clavecol’s
                                             list of rates in the preliminary results.     these circumstances, we relied on the
methodology deviated from the format            Department’s Position: We agree with       sales revenue and financial expenses
we indicated in our questionnaire, it        Santa Rosa that Floricola la Ramada is        from the financial statements of the
produces the same results and does not       a member of the Santa Rosa Group and          three companies as BIA.
distort costs. Therefore, we have used       we have corrected this oversight for             Comment 47: Flores el Zorro disagrees
Clavecol’s original cost response with       these final results.                          with the Department’s application of
respect to its crop adjustment                  Comment 45: The AGA Group and the          total BIA to its transactions. Respondent
methodology.                                 FTC claim that the Department                 contends that all of the errors in its
   Comment 43: The Santa Rosa Group          erroneously published separate rates for      response are clerical in nature and can
(Santa Rosa) claims that the Department      Agricola Benilda.                             be corrected by the Department without
improperly disallowed the amount of             Department’s Position: We disagree         the submission of new information.
amortized pre-production expenses            with both the AGA Group and the FTC.          Flores el Zorro describes how nine
carried forward to future periods after      Because Agricola Benilda was not part         errors noted by the Department can be
the close of each POR. Santa Rosa            of the AGA Group until the 7th review         corrected for the calculation of margins.
contends that, although it did not use       period we have listed Agricola Benilda        Flores el Zorro requests that the
the methodology the Department set           twice. For the 5th and 6th PORs,              Department accept its explanation and
forth in the questionnaire, its              Agricola Benilda receives a separate rate     calculate weighted-average margins for
methodology achieved the same results.       from the AGA Group because it was not         its sales.
   For direct materials costs, Santa Rosa    a member of the AGA group. During the            Department’s Position: We identified
claims that it reported all costs incurred   7th POR, Agricola Benilda was a               several errors in Flores el Zorro’s
in each review period, albeit in a           member of the AGA group, so we have           responses and applied BIA in the
different place than the Department          collapsed it with the AGA group for that      preliminary results. Those errors were
requested. Santa Rosa claims that it         period. Therefore, duties for the 7th         as follows: (1) The misidentification of
properly reported the amounts                POR and future cash deposits for              sales as ESP sales; (2) exceptionally high
attributable to future periods, resulting    Agricola Benilda will be at the AGA           indirect selling expense amounts for
in a net adjustment to period expenses       Group rate.                                   U.S. sales; (3) inconsistencies in the unit
for amortization rather than the total          Comment 46: The Bojaca Group               numbers of U.S. exports and total
pre-production expenses. Santa Rosa          (Bojaca) argues that the Department           exports; (4) reporting direct selling
explains that it used a similar procedure    erroneously calculated and allocated net      expenses in the constructed value
for direct labor and overhead farm costs.    financing costs for the group, which          spreadsheet, but reporting no direct
   Santa Rosa asks that, if the              consists of three companies. Bojaca           selling expenses in the U.S. sales
Department disallows the amounts             claims that the Department erred in           spreadsheet; (5) reporting indirect
carried forward to future years, that it     attempting to implement its practice of       selling expenses in the U.S. sales
also eliminate from current pre-             using group-wide financing expenses on        spreadsheet, but not in the constructed
production costs all such costs              two accounts. First, Bojaca states that       value spreadsheet; (6) an inconsistency
respondent carried forward from prior        the Department took group-wide                between reported U.S. packing expenses
years, as reported in specific               financing expenses from calendar-year-        in the sales spreadsheets and the
spreadsheet lines. Santa Rosa contends       based financial statements for the three      constructed value spreadsheets; (7) the
that it would be improper to disallow        companies and used these in the               reporting of different interest income
only one part of the amortization of pre-    constructed value calculation, which is       and expense amounts in each month of
production expenses.                         based on a March-to-February period.          the reviews for each flower type; (8) an
                     Federal Register / Vol. 61, No. 161 / Monday, August 19, 1996 / Notices                                  42861

inadequate explanation of how interest         Respondent asserts that it and the other     calculating margins. We have not
income was related to production; and          firm are not agents or principals of each    requested an additional sampling of
(9) the overstatement of the crop              other, neither owns, directly or             grower’s reports because we are satisfied
adjustment expense amounts.                    indirectly, any interest in the other, and   that the company’s U.S. sales are
   Because we received Flores el Zorro’s       there are no persons that own any            accurately reported.
request that we correct its response after     percentage in both firms. Consequently,         Comment 51: Agricola Acevedo
publication of our preliminary results         Flores Tropicales argues that the two        claims that it incorrectly reported total
and the alleged error was not apparent         companies are not related and that the       packing expenses for all markets instead
from the record, we have applied the six       Department should not collapse the two       of U.S. packing expenses in its
criteria explained in the BACKGROUND           firms for its analysis.                      constructed value tables for the 5th, 6th,
section of this notice. We find that              Department’s Position: Section            and 7th reviews. However, Agricola
Flores el Zorro met all of these criteria      771(13) of the Act establishes a standard    Acevedo asserts that, with respect to the
for the first, second, third, fourth, fifth,   for relationship based on association,       5th and 6th reviews, it reported the
and seventh errors and have corrected          ownership or control. The Department         correct U.S. packing expenses in its U.S.
these errors for the final results,            agrees that the Tropicales Group’s           price table.
resulting in recalculated margins for          relationship with a second firm during          Department’s Position: Because
Flores el Zorro. However, Flores el            the 7th POR does not meet the criteria       Agricola Acevedo brought this error to
Zorro failed to meet one of these criteria     for relatedness primarily because this       our attention after publication of our
for the sixth, eighth, and ninth errors in     relationship existed only in the last two    preliminary results and the alleged error
that it did not provide supporting             months of the seventh POR. Therefore,        is not apparent from the record, we have
documentation for the alleged clerical         for the purposes of these reviews we         applied the six criteria explained in the
errors. Therefore, we have not made the        have not collapsed the two firms.            BACKGROUND section of this notice. We
changes requested by Flores el Zorro for          Comment 50: Iturrama contends that        find that Agricola Acevedo failed to
these alleged errors.                          it should not receive BIA for failing to     meet one of these criteria. Agricola
   Comment 48: The Tropicales Group            itemize the costs it reported in its         Acevedo did not provide supporting
contends that several errors in its            constructed value table and failing to       documentation for the alleged error.
response, which caused the Department          provide a particular grower’s report, as     Therefore, we have not corrected
to apply adverse inferences in the             requested by the Department in a             Agricola Acevedo’s submission. (See the
preliminary results, were the result of        supplemental questionnaire. Iturrama         March 30, 1995, Memorandum to the
transcription errors and that the correct      asserts that it did not understand the       File for an explanation of the U.S.
information is evident on the record.          reasons why the Department asked             packing expenses we used for Agricola
According to respondent, the first error       certain questions and, therefore, did not    Acevedo in the final results.)
involves the amortization costs carried        fully explain why it could not provide          Comment 52: Agricola Acevedo
forward in the amortization tables, the        the requested information. With regard       contends that the Department
second error is an overstatement of            to Iturrama’s failure to itemize costs       incorrectly disallowed financial income
packing expense amounts for the 7th            reported in its constructed value table,     as an offset to financial expenses.
review, and the third error is a               Iturrama claims that the company’s           Agricola Acevedo explains that the
discrepancy in the amounts reported for        accounting system simply does not            claimed financial income consists of
indirect selling expenses on two tables        permit the cost itemization the              short-term interest income from
for the 7th review. The Tropicales             Department requested. Iturrama               deposits of working capital and income
Group states that the Department should        provided a sample of its trial balance       received from the sale of scrap plastic
use the lesser of the two amounts              and an auxiliary ledger to show that the     and wood from fixed assets, and that it
because that amount matches the                total costs reported in the company’s        identified these items individually in its
amount in the firm’s accounting records.       financial records reconcile to the total     response to the Department’s
   Department’s Position: Because we           costs figures reported in the response.      questionnaire. Agricola Acevedo
received the Tropicales Group’s request        With regard to the grower’s report,          requests that the Department change its
that we correct its response after             Iturrama argues that it simply did not       calculations accordingly.
publication of our preliminary results         have it, and, therefore, there is no            Department’s Position: We
and the alleged error was not apparent         justification for assigning BIA. Iturrama    preliminarily denied Agricola
from the record, we have applied the six       concludes that BIA cannot lawfully be        Acevedo’s offset to financial expenses
criteria explained in the BACKGROUND           applied under the circumstances, and         for financial income because we could
section of this notice. We find that the       requests that the Department use its data    not locate a monthly breakdown of each
Tropicales Group met all of these              in the final results.                        component of claimed financial income
criteria for the first two errors and have        The FTC argues that, if the               in the firm’s response. However, based
corrected these errors for the final           Department finds that Iturrama’s             on Agricola Acevedo’s clarification and
results and recalculated the margin for        explanations justify reconsideration of      further analysis of the company’s
the Tropicales Group.                          its response, the Department should          questionnaire response, we are now
   However, the Tropicales Group failed        request an additional sampling of            satisfied that the company’s constructed
to meet one of these criteria for the third    grower’s reports to confirm the accuracy     value submission contains the
error in that it did not provide               of Iturrama’s reported U.S. sales.           breakdown we requested.
supporting documentation for the                  Department’s Position: Because            Notwithstanding Agricola Acevedo’s
alleged clerical error. Therefore, we          Iturrama does not have the requested         compliance with our reporting
have not made the change requested by          grower’s report and does not maintain        requirements, we are only allowing the
the Tropicales Group for this alleged          the level of cost detail in its normal       offset to financial expenses for the
error.                                         books and records that would be              company’s short-term interest income
   Comment 49: Flores Tropicales               required to comply with our request, we      from deposits of working capital. The
expresses concern that the Department          have reconsidered our decision to apply      Department only allows an offset to
is considering collapsing it with another      BIA rates to the firm. For these final       financial expenses for short-term
respondent in the 7th review period.           results, we have used its response in        interest income directly related to the
42862               Federal Register / Vol. 61, No. 161 / Monday, August 19, 1996 / Notices

general operations of the company. See       My Flowers employee. In conclusion,           encourage other firms to liquidate
Notice of Final Determination of Sales       My Flowers requests that the                  themselves and reincorporate under
at Less Than Fair Value: Small Diameter      Department treat it as unlocatable for        new names. Accordingly, we have
Circular Seamless Carbon and Alloy           the POR, and that the Department              applied a non-cooperative BIA rate to
Steel, Standard, Line and Pressure Pipe      instruct Customs to assess the ‘‘all          entries of merchandise from this firm.
From Italy, 60 FR 31981, 31991 (June         others’’ rate of 3.10 percent on its             Comment 56: Proflores contends that
19, 1995). Income from the sale of scrap     entries.                                      the application of first-tier BIA due to
plastic and wood does not constitute            The FTC requests that, if the              its failure to respond to the
this type of revenue. Under GAAP this        Department accepts My Flowers’                Department’s request for supplementary
revenue could be claimed as an offset to     explanation, it include the company in        information was in error. Proflores
general and administrative expenses by       any subsequent administrative reviews.        argues that it did respond to the
reporting it as a gain or a loss on the         Department’s Position: We have             Department’s supplemental
disposal of a fixed asset. However,          reviewed the documentary evidence on          questionnaire and that the Department
Agricola Acevedo did not compare the         the record and conclude that My               did receive the response in a timely
sales value to the book value of the fixed   Flowers did not receive the                   manner.
assets sold as required under GAAP.          questionnaire. Therefore, we have not            The FTC asserts that, prior to using
Agricola Acevedo also did not justify        assigned My Flowers a BIA rate. Instead,      Proflores’ supplemental submission, the
that these materials were related to the     we have added My Flowers to the list          Department should require the company
production of subject merchandise            of firms that were unlocatable, and we        to submit at least a reasonable sampling
produced and sold within these PORs.         will instruct Customs to liquidate its        of growers reports to confirm
Therefore, we have disallowed the offset     entries at the ‘‘all others’’ rate since we   respondent’s reporting methodology for
Agricola Acevedo claimed for income it       have not previously reviewed this firm.       certain expenses.
received from the sale of scrap plastic      We will include My Flowers in any                Department’s Position: We agree with
and wood.                                    subsequent administrative review if we        Proflores that it submitted its
   Comment 53: Papagayo argues that          receive a request for review from an          supplemental response in a timely
the Department made an error in its          interested party during the anniversary       manner, and we have used it for these
margin calculations by incorrectly           month of the publication of this order.       final results instead of applying BIA.
consolidating Papagayo’s sales tables.       See 19 CFR 353.22(a).                         Because we are satisfied with Proflores’
Papagayo states that, because each              Comment 55: Equiflor and Esprit            response to our supplemental question
LOTUS file would not accommodate             Miami claim that Flores el Majui ceased       concerning the reporting of certain
more than 25 importers, it used two files    to exist prior to the release of the          expenses, we do not find it necessary to
to report the sales data for its             Department’s questionnaire in the 7th         review additional information,
submission.                                  review period. Further, they dispute the      including growers reports.
   The FTC argues that the errors appear     Department’s preliminary conclusion              Comment 57: Equiflor, Esprit Miami,
to be the result of respondent’s             that Flores el Majui had ever received        and Eden Floral Farms (Eden),
deviations from the format the               the questionnaire. Equiflor and Esprit        importers of subject merchandise in
Department instructed respondents to         Miami argue that the Department should        Miami, assert that the Department erred
use in the questionnaire.                    not assign a non-cooperative BIA rate to      in applying a non-cooperative BIA
   Department’s Position: We agree with      entries from Flores el Majui, and that        margin to two Colombian producers:
Papagayo and have used the two sales         the Department should liquidate those         Sunset Farms (5th, 6th, and 7th reviews)
files for the final results.                 entries at the cash deposit rate in effect    and Groex S.A. (5th and 6th reviews).
                                             at the time of entry.                         Equiflor and Esprit Miami claim that
Issues Raised by Other Respondents              The FTC rebuts that a company              Sunset Farms was unable to respond to
   Comment 54: My Flowers requests           cannot be allowed to abandon its              the Department’s questionnaire because
that the Department not apply a non-         antidumping duty liability by virtue of       it had sold most of its assets before the
cooperative BIA rate to its entries of       its liquidation, otherwise firms would        Department released its questionnaires
subject flowers for failing to respond to    simply liquidate themselves and               and was operating with reduced staff
the Department’s requests for                reincorporate under a new name each           and facilities at the time it received the
information. My Flowers claims that it       time a new administrative review was          questionnaire. Equiflor and Esprit
never received the questionnaire or any      initiated. Additionally, the FTC              Miami argue that Sunset Farm’s
other information regarding the              contends, Equiflor and Esprit Miami           condition was far worse than that of
administrative reviews. Furthermore,         have not provided evidence to                 Flores Estrella in the fourth review of
My Flowers contends that the address to      distinguish Flores el Majui from firms        the instant case, and, under these
which the Department sent materials          that were unlocatable or to establish that    circumstances, the Department should
was out of date, and that it has not         Flores el Majui did not receive the           not apply a non-cooperative BIA. Eden
occupied the space at the address since      questionnaire.                                claims that Groex S.A. was out of
December 1992. In support of this               Department’s Position: We can              business and liquidated prior to the due
argument, My Flowers provides                distinguish our treatment of Flores el        date of sections C and D of the
registration certificates from the           Majui from that of My Flowers because,        questionnaire, and, therefore, was
Colombian Chamber of Commerce,               in the latter case, the company provided      unable to respond to those sections.
authenticated by the U.S. Embassy and        evidence that our service of the              Eden notes that Groex S.A. did respond
the Colombian Ministry of Foreign            questionnaire was defective. However,         to section A for the 5th and 6th reviews
Relations. My Flowers claims that the        Equiflor, Esprit Miami, and Flores el         and filed a letter stating that it had no
company at its old address received the      Majui did not provide such evidence to        shipments of the subject merchandise in
questionnaire, but failed to let My          the Department. Therefore, we agree           the 7th review and, therefore, did
Flowers know of its arrival. My Flowers      with the FTC that failure to apply a non-     cooperate to the extent possible.
submits documentation supporting that        cooperative BIA rate to Flores el Majui          Bloomshare Ltda. (7th review only)
the individual who signed the delivery       would reward non-compliance with our          and Ciba-Geigy (5th, 6th, and 7th
record for the questionnaire was not a       administrative review and would               reviews), Colombian producers of the
                    Federal Register / Vol. 61, No. 161 / Monday, August 19, 1996 / Notices                                42863

subject merchandise, also claim that the    allocating packing expense for all          Caicedo concludes that these errors
Department erred in assigning them          exports over just U.S. sales. Floraterra    should be corrected because the errors
non-cooperative BIA margins.                contends that this is obvious from the      are obvious from the information
Bloomshare Ltda. claims that it stopped     administrative record, and that the         already in the record.
growing flowers in June 1993, and that      Department should fix the tables so that       The FTC maintains that Caicedo had
it is now in the business of growing        the expenses in Table 2 are based on the    several opportunities to supply
produce for the domestic market. Ciba-      reported Table 1 expenses, and not the      corrected information and that the
Geigy claims that it sold its plantation    other way around.                           Department was justified in relying on
in 1988 to another producer and was no         Department’s Position: Because we        Caicedo’s last submission as containing
longer in the Colombian flower business     received Floraterra’s request that we       the correct data. The FTC further states
during the PORs.                            correct its response after publication of   that it is the responsibility of Caicedo to
   The FTC rebuts that, in the Fourth       our preliminary results, we have            prepare its own data correctly.
Review, the Department described            applied the six criteria explained in the      Department’s Position: We have
certain factors to examine when             BACKGROUND section of this notice. We       reviewed the record and conclude that
determining whether Flores Estrella and     find that Floraterra met all of the         Caicedo did make proper corrections as
Mountguar were incapable of                 criteria, with the substantiating           we requested to its crop adjustment
responding to its questionnaire.            evidence having been on the record          methodology. Also, we agree that
However, the FTC contends that the fact     prior to the preliminary results.           Caicedo did make certain clerical errors
pattern in the instant reviews differs in   Therefore, we have made this change for     that are substantiated from the
that the respondents failed to notify the   the final results.                          information already on the record.
Department of their situation in a timely      Comment 59: Agricola la Siberia          Therefore, we have used the corrected
fashion. The FTC points to an identical     (Siberia) claims that it made two errors    information on the record for the final
fact pattern in the third review of this    in its original response. Siberia claims    margin calculations.
case where the Department determined        that it included packing and indirect          Comment 61: Guacatay argues that the
that information regarding an alleged       selling expenses incurred on third-         Department should not have set to zero
bankruptcy submitted after the              country sales as well as on U.S. sales.     certain negative net financing costs
preliminary results of review was           Siberia asks the Department to correct      Guacatay reported in the 5th and 7th
untimely and therefore impossible to        its data for the final results.             reviews. Guacatay states that it made
evaluate. The FTC asserts that the             Department’s Position: Because we        year-end adjustments to its financial
Department properly assigned non-           received Siberia’s request that we          expenses to reverse certain provisional
cooperative BIA rates for these             correct its response after publication of   entries it made earlier in the years
respondents.                                our preliminary results and the alleged     covered by 5th and 7th reviews.
   Department’s Position: With regard to    error was not apparent from the record,     According to Guacatay, the result of
Sunset Farms and Groex, Equiflor,           we have applied the six criteria            these year-end adjustments was that it
Esprit Miami, and Eden do not dispute       explained in the BACKGROUND section of      reported financial costs occasionally as
that these two Colombian producers          this notice. We find that Siberia failed    negative numbers. However, Guacatay
received the questionnaire. In addition,    to meet one of these criteria in that it    contends, the net financial costs for the
Equiflor and Esprit Miami do not            did not provide supporting                  PORs as a whole are always positive.
explain why Sunset Farms failed to          documentation for the alleged clerical      Therefore, Guacatay requests that the
submit any response whatsoever. Eden        error. Therefore, we have not made the      Department use the net financial costs it
does not dispute the fact that Groex S.A.   change requested by Siberia.                reported and explained in its
failed to submit a response to sections        Comment 60: Caicedo protests the         supplemental response.
C and D of our questionnaire or explain     Department’s use of BIA for its sales of       The FTC disagrees and states that this
why this producer was unable to do so       minicarnations in the 6th and 7th           type of accounting invites manipulation
in a timely fashion. As for Bloomshare      reviews. Caicedo notes that the             and the Department correctly adjusted
Ltda. and Ciba-Geigy, the companies do      Department said that it applied BIA for     negative values to zero.
not dispute that they received the          two reasons: (1) Caicedo improperly            Department’s Position: We agree with
questionnaire and at no time prior to       used its crop adjustment for the flowers    Guacatay. We have reexamined
issuance of our preliminary results did     and period in question and failed to        Guacatay’s supplemental response and
they alert us to their situations.          correct its crop methodology when the       conclude that the company adequately
Therefore, because respondents have         Department requested it to do so; (2)       explained the basis for making negative
provided untimely explanations of their     Caicedo had made other unexplained          financial cost adjustments for certain
failure to respond to our questionnaire,    changes to its data, including changes to   months. We have therefore used the net
we have assigned non-cooperative BIA        the reported sales amounts.                 financial costs Guacatay reported.
rates to Sunset Farms, Groex S.A.,             Caicedo argues that, contrary to the        Comment 62: HOSA argues that,
Bloomshare Ltda., and Ciba-Geigy.           Department’s conclusions, Caicedo did       although it failed to submit a request for
   Comment 58: The Floraterra Group         correct its crop adjustment methodology     revocation on the anniversary month of
(Floraterra) argues that the Department     in a December 2, 1994 submission as         the order as required by the
overallocated packing expenses to           requested by the Department. However,       Department’s regulations, the
Floraterra’s U.S. sales. Floraterra         Caicedo contends that the Department        Department has the discretion under 19
acknowledges that the Department was        used an earlier submission by the firm      CFR 353.25(a) to grant the untimely
correct in changing the packing             in its calculations for the preliminary     revocation request. HOSA further argues
expenses in Tables 1 and 2 because they     results. With respect to unexplained        that certain circumstances, such as its
should have been the same. Floraterra       charges relating to sales amounts,          late retention of counsel and its inability
claims that it mistakenly reported          Caicedo explains that it had                to run an analysis of three years’ worth
packing expenses on all exports in Table    inadvertently transferred to its            of data to determine its eligibility for
2, and that, by using the expense from      December 2 submission erroneous             revocation at that time, justifies that its
Table 2 instead of Table 1 as the basis     figures from an earlier response, which     late revocation request be given
for reallocation, the Department is         it had already corrected for the record.    consideration by the Department.
42864               Federal Register / Vol. 61, No. 161 / Monday, August 19, 1996 / Notices

   The FTC argues that, even if the          data to calculate the profit percentage it      Agromonte Ltda. contends that it
Department otherwise finds HOSA to be        originally reported.                         could not find any discrepancies
eligible for revocation, it should deny         With regard to packing expenses, we       between Table 1 and Table 2D for
HOSA’s request for revocation because        received Aspen Garden’s request that         indirect selling expenses. Therefore,
it was not submitted in a timely fashion.    we correct its response after publication    respondent states, the Department
   Department’s Position: Based on our       of our preliminary results and the           should not have made any changes.
final results of these administrative        alleged error is not apparent from the          Department’s Position: We disagree
reviews, we find that HOSA has not had       record. Therefore, we have applied the       with Agromonte’s argument. Even
a three-year period of no sales at less      six criteria explained in the                though respondent calculated the
than fair value and thus does not qualify    BACKGROUND section of this notice. We        amounts it reported in Table 2E for
for revocation. Therefore, the issue of      find that Aspen Garden’s situation fails     packing costs based on boxes shipped
HOSA’s late revocation request is moot.      to meet one of these criteria. Aspen         and the amounts it reported in Table 1
   Comment 63: Aspen Garden Ltda.            Garden did not provide supporting            were calculated on units sold, the totals
contends that, for the final results, the    documentation for the alleged error.         should still equal one another.
Department should use the prime rate it      Therefore, we have not made the change       Therefore, the adjustments we made in
reported in its original questionnaire       requested by Aspen Garden. (See the          the preliminary results remain in our
response instead of calculating imputed      March 30, 1995, Memorandum to the            final results.
credit expenses for U.S. sales based on      File for an explanation of the U.S.             As for Agromonte’s contention that
the company’s short-term Colombian           packing expenses we used for Aspen           there were no discrepancies relating to
peso borrowings during each POR.             Garden in the final results.)                indirect selling expenses, we disagree.
Furthermore, Aspen Garden Ltda.                 Comment 64: Flores de Oriente claims      The amounts respondent reported in
argues that the Department should use        that the distribution of indirect selling    Table 2D do not equal the amounts it
the statutory eight-percent profit for       expenses the Department made is              reported in Table 1. Therefore, the
constructed value instead of the profit      incorrect. According to respondent, for      reconciliation we made in the
percentage it reported in its original       one client, the cost of packing and          preliminary results remains in our final
questionnaire response. Aspen Garden         handling was included in indirect            results.
Ltda. explains that it based the profit      selling expenses incurred in the home           Comment 66: Florval S.A. claims that
percentage it reported in its original       market on U.S. sales. Therefore,             it erroneously reported packing costs
submission on third-country sales and,       respondent contends, it did not report       and indirect selling expenses for all
furthermore, that it calculated the rate     packing costs for this particular            markets instead of packing expenses
incorrectly. Finally, Aspen Garden Ltda.     customer. Respondent states that the         and indirect selling expenses for the
contends that the packing expenses it        indirect selling expenses in Table 1 will    U.S. market in Table 2D and Table 2E
reported in its U.S. price table are         not equal Table 2 because of this, but       of its response. Florval requests that the
correct, and the Department should not       total costs for the Table 1 and Table 2      Department include in Table 2 the
have modified them. Aspen Garden             are equal. Thus, respondent argues, the      results of adding all indirect selling
Ltda. explains that it mistakenly            Department should not have made              expenses and packing costs shown in
reported in its constructed value table      adjustments to packing costs and             Table 1 for each customer.
the cost of packing flowers that are not     indirect selling expenses.                      Department’s Position: We agree with
under review in addition to the cost of         Department’s Position: We do not          Florval S.A. However, instead of adding
packing subject merchandise, and             agree with Flores de Oriente that total      all indirect selling expenses and
requests that the Department not modify      costs for Table 1 equal Table 2. Packing     packing costs shown in Table 1 for each
the packing costs it reported in its U.S.    expenses respondent reported in Table        customer, we were able to determine
price table.                                 2 equalled the packing expenses it           packing costs and indirect selling
   Department’s Position: We do not          reported in Table 1. However, indirect       expenses related to flowers sold in the
agree with Aspen Garden’s argument           selling expenses respondent reported in      U.S. market. We derived this data from
that we should calculate imputed credit      Table 1 did not equal indirect selling       information already on the record prior
expenses on U.S. sales using the prime       expenses it reported in Table 2.             to our preliminary results.
rate respondent reported in its original     Therefore, total costs between the two          Comment 67: The Florcol Group
questionnaire response. We have              tables did not reconcile. Because            argues that, in the 5th and 7th reviews,
calculated Aspen Garden’s imputed            indirect selling expenses did not            the difference between the amounts for
credit expenses based on the company’s       reconcile, we have distributed these         indirect selling expenses in Table 2D
short-term Colombian peso borrowings         expenses for these final results as we       compared to Table 1 is due to the
during the POR. (See the March 30,           did for the preliminary results.             allocation method it used. The Florcol
1995, Memorandum to the File for a              Comment 65: Agromonte Ltda. argues        Group states that the total indirect
discussion of Aspen Garden’s interest        that the Department incorrectly changed      selling expenses should be allocated in
rate calculation. For a full discussion of   the figures for packing costs and            Table 1 to each month on the basis of
the interest rate issue, see our response    indirect selling expenses incurred in        U.S. sales value instead of volume.
to Comment 22 of this notice.) With          Colombia on U.S. sales when the totals          With respect to packing costs in the
regard to profit for constructed value,      reported in Table 1 conflicted with the      5th review, the Florcol Group states that
we have used the statutory eight-percent     amounts reported in Table 2. Agromonte       the total amount shown in Table 2E
figure since the profit percentage that      Ltda. claims that the reason for the         corresponds to the total packing costs
Aspen Garden reported in its original        discrepancy in packing costs is because      for all export quality minicarnations it
submission was based on third-country        the values it reported in Table 1 are        sold during the review period. The
sales data. (See our response to             based on units sold while the values for     Florcol Group states that the
Comment 8 for a full discussion of the       Table 2E are based on boxes sent.            Department can derive the correct total
appropriate profit percentage to use for     According to respondent, the correct         packing costs for Table 2E by totalling
constructed value.) Aspen Garden made        amounts are the ones it stated in Table      the packing costs reported in Table 1.
it clear in its original questionnaire       2E because they identify the packing            In the 7th review, Florcol contends
response that it used third-country sales    costs of the total units sent each month.    that it used the wrong unitary costs for
                                   Federal Register / Vol. 61, No. 161 / Monday, August 19, 1996 / Notices                                                                                      42865

packing in order to calculate packing                                     review. The same error occurred in the                                     the respondent, it inadvertently
costs for Table 1. Florcol identifies the                                 7th review. For the final results, we                                      submitted incorrect tables in its
correct unitary packing cost and                                          used Rita’s original data as reported.                                     supplemental questionnaire response,
requests that the Department make the                                        Comment 69: Rita argues that each                                       but submitted what it believed were
appropriate corrections.                                                  flower type it grows has a substantially                                   corrected tables later. However,
   Department’s Position: Because we                                      different cost of production and that the                                  Papagayo comments that it appears that
received the Florcol Group’s request                                      Department was incorrect in modifying                                      it mixed up the tables when submitting
that we correct its response after                                        these costs by using a percentage-based                                    the ‘‘corrected’’ responses. Specifically,
publication of our preliminary results                                    ratio of these items to the total sales as                                 Papagayo requests that the Department
and the alleged error was not apparent                                    reported in the financial statements.                                      correct the following for certain
from the record, we have applied the six                                     Department’s Position: In our October                                   importers: gross sales value and volume
criteria explained in the BACKGROUND                                      25, 1994, supplemental questionnaire,                                      totals, additional movement expenses,
section of this notice. For indirect                                      we asked Rita to explain its                                               indirect selling expenses incurred in the
selling expenses in the 5th and 7th                                       methodology for allocating indirect                                        home market for U.S. sales, quantities
reviews, we find that Florcol failed to                                   costs and general expenses. In addition,                                   shipped, and domestic inland freight for
meet these criteria in that the error was                                 we asked Rita to explain the accuracy of                                   U.S. sales. The respondent also claims
a methodological error and not a clerical                                 its allocation methodology when ‘‘area                                     that one ‘‘importer’’ the Department
error. Florcol explained, in its July 18,                                 of cultivation’’ was used as a basis for                                   included in its preliminary results is not
1995 submission, that indirect selling                                    allocating an expense. In its November                                     actually a U.S. importer. In sum,
expenses reported in Table 2 differed                                     1, 1994, response to these questions,                                      Papagayo claims that, if the Department
from those reported in Table 1 because                                    Rita failed to explain its methodology                                     makes the changes that respondent has
of the allocation methodology used.                                       and failed to document the basis for                                       provided, the Department will have a
However, these expenses should match,                                     allocating its costs. Because Rita failed                                  correct version of the tables.
regardless of the allocation                                              to explain how its costs were allocated                                       Department’s Position: Because we
methodology. In addition, Florcol states                                  among flower types and because the                                         received Papagayo’s request that we
what it claims the correct total amount                                   amounts reported for cost of goods sold,                                   correct its response after publication of
of indirect selling expense should be,                                    selling expenses, and general and                                          our preliminary results and the alleged
but does not provide documentation to                                     administrative expenses reported in                                        errors were not apparent from the
substantiate its claims.                                                  Table 2D conflicted with data reported                                     record, we have applied the six criteria
   With respect to the unitary packing                                    in Rita’s financial statements, for the                                    explained in the BACKGROUND section of
cost in the 7th review, Florcol did not                                   preliminary results we disregarded                                         this notice. We find that Papagayo failed
provide supporting documentation for                                      Rita’s reported cultivation costs, general                                 to meet one of these criteria in that it
the alleged clerical error. Therefore, we                                 and administrative expenses, and                                           did not provide supporting
have not made the change Florcol                                          indirect expenses, and calculated an                                       documentation for these alleged errors.
requests.                                                                 amount based on Rita’s financial                                           Therefore, we did not make the changes
   With respect to packing costs in the                                   statements. We applied the relative                                        requested for certain importers.
5th review, Florcol met the six criteria.                                 percentage of these costs to sales found                                   However, we could determine from
Therefore, we have made this                                              in the financial statements in Rita’s                                      information Papagayo presented, and in
correction.                                                               response with the presumption that all                                     accordance with our six criteria, that
   Comment 68: Inversiones Santa Rita                                     flowers have the same relative cost of                                     one ‘‘importer’’ was not a U.S. importer,
(Rita) questions why the Department                                       production.                                                                so we deleted that importer’s tables for
modified line 18 of Table 2 (cull                                            Because Rita has not been able to                                       these final results. In all other respects,
revenue) for the preliminary results.                                     substantiate from information already                                      we have used in these final results the
Rita claims that its reported data was                                    on the record that each flower type has                                    same tables we used in our preliminary
proper and that it established that the                                   a substantially different cost of                                          results.
data it submitted in the cull revenue                                     production, we continue to apply the
amounts came from its invoices.                                           methodology used in the preliminary                                        Final Results of Review
   Department’s Position: We agree with                                   results for these final results.                                             As a result of our review, we
Rita. We inadvertently copied line 18 of                                     Comment 70: Papagayo argues that                                        determine the following percentage
Rita’s Table 2, cull revenue, for                                         the Department used an incorrect set of                                    weighted-average margins to exist for
minicarnations in the 6th review to line                                  U.S. price and constructed value tables                                    the 5th, 6th, and 7th administrative
18 for standard carnations in the 6th                                     for the preliminary results. According to                                  reviews:

                                                                    Producer/exporter                                                                                   5th         6th          7th

Abaco Tulipanex de Colombia .............................................................................................................................                     (1)         (1)       (1)
Agrex de Oriente ..................................................................................................................................................           (2)         (2)       (1)
AGA Group ...........................................................................................................................................................         (2)         (2)    10.43
     Agricola la Celestina
     Agricola la Maria
     Agricola Benilda Ltda
Aricola Acevedo Ltda ...........................................................................................................................................         1.02        4.65         2.69
Agricola Arenales Ltda .........................................................................................................................................         2.06        3.18         3.32
Agricola Benilda ...................................................................................................................................................       (1)         (1)       10.43
Agricola Bonanza Ltda .........................................................................................................................................            (1)         (1)          ( 1)
Agricola Circasia Ltda ..........................................................................................................................................       16.23        1.70         2.01
Agricola de los Alisos ...........................................................................................................................................      76.60       76.60        76.60
Agricola el Cactus ................................................................................................................................................      2.39        2.15         1.67
Agricola el Redil ...................................................................................................................................................    0.53        0.54         0.45
Agricola Guali S.A ................................................................................................................................................        (1)         (1)          (1)
42866                              Federal Register / Vol. 61, No. 161 / Monday, August 19, 1996 / Notices

                                                                      Producer/exporter                                                                                    5th      6th      7th

Agricola Jicabal ....................................................................................................................................................      76.60    76.60    76.60
Agricola la Corsaria ..............................................................................................................................................         5.34     3.18     1.88
Agricola las Cuadras Group .................................................................................................................................                1.72     4.72     2.23
     Agricola Las Cuadras Ltda
     Flores de Hacaritama
Agricola La Siberia ...............................................................................................................................................           (2)      (2)   32.42
Agricola Malqui .....................................................................................................................................................      76.60    76.60    76.60
Agricola Monteflor Ltda ........................................................................................................................................              (2)      (2)   76.60
Agricola Uzatama .................................................................................................................................................            (2)      (2)   76.60
Agricola Yuldama .................................................................................................................................................            (2)      (2)      ( 1)
Agrobloom Ltda ....................................................................................................................................................           (2)      (2)   76.60
Agrodex Group .....................................................................................................................................................         1.14     0.34     1.14
     Agricola El Retiro Ltda.
     Agricola Los Gaques Ltda.
     Agrodex Ltda.
     Degaflores Ltda.
     Flores Camino Real Ltda.
     Flores de la Comuna Ltda.
     Flores De Las Mercedes Ltda.
     Flores De Los Amigos Ltda.
     Flores De Los Arrayanes Ltda.
     Flores De Mayo Ltda.
     Flores Del Gallinero Ltda.
     Flores Del Potrero Ltda.
     Flores Dos Hectareas Ltda.
     Flores De Pueblo Viejo Ltda.
     Flores El Puente Ltda.
     Flores El Trentino Ltda.
     Flores La Conejera Ltda.
     Flores Manare Ltda.
     Florlinda Ltda.
     Inversiones Santa Rosa ARW Ltda.
     Horticola El Triunfo
     Horticola Montecarlo Ltda.
Agroindustrial Don Eusebio Group ......................................................................................................................                      4.45     2.10     1.90
     Agroindustrial Don Eusebio Ltda.
     Celia Flowers
     Passion Flowers
     Primo Flowers
     Temptation Flowers
Agrokoralia ...........................................................................................................................................................    76.60    76.60    76.60
Agromonte Ltda ....................................................................................................................................................         7.97     1.88     3.16
Agropecuria Cuernavaca Ltda .............................................................................................................................                   3.11    12.45     6.84
Aspen Gardens ....................................................................................................................................................            (2)      (2)    7.75
Astro Ltda .............................................................................................................................................................      (1)   19.20    18.74
Bali Flowers ..........................................................................................................................................................       (2)      (2)   76.60
Becerra Castellanos y Cia ...................................................................................................................................               2.86     0.28    62.79
Bloomshare ..........................................................................................................................................................         (2)      (2)   76.60
Bojaca Group .......................................................................................................................................................       76.60    20.20     0.21
     Agricola Bojaca
     Plantas y Flores
          Tropicales (‘‘Tropiflora’’)
     Universal Flowers
Bogota Flowers ....................................................................................................................................................        76.60    76.60    76.60
Caicedo Group .....................................................................................................................................................         0.49     0.71     0.57
     Agro Bosque, S.A.
     Aranjuez S.A.
     Exportaciones Bochica S.A.
     Floral Ltda.
     Flores Del Cauca
     Inversiones Targa Ltda.
     Productos El Zorro
Cantarrana Group ................................................................................................................................................            3.37   21.56      7.97
     Cantarrana Ltda.
     Agricola Los Venados Ltda.
Ciba Geigy ............................................................................................................................................................    76.60    76.60    76.60
Cienfuegos Group ................................................................................................................................................           5.43     3.34     8.69
     Cienfuegos Ltda.
     Flores La Conchita
Cigarral Group ......................................................................................................................................................        5.30   41.84    49.39
     Flores Cigarral
     Flores Tayrona
Claveles Colombianas Group ..............................................................................................................................                    2.30     1.11     1.50
                                   Federal Register / Vol. 61, No. 161 / Monday, August 19, 1996 / Notices                                                                                        42867

                                                                      Producer/exporter                                                                                     5th         6th        7th

     Claveles Colombianos Ltda.
     Fantasia Flowers Ltda.
     Splendid Flowers Ltda.
     Sun Flowers Ltda.
Claveles De Los Alpes Ltda .................................................................................................................................                 1.16        6.84       3.87
Claveles Tropicales de Colombia ........................................................................................................................                       (2)         (2)     76.60
Colflores ...............................................................................................................................................................   76.60       76.60      76.60
Colibri Flowers Ltda .............................................................................................................................................           3.62        2.39       5.01
Colony International Farm ....................................................................................................................................              76.60       76.60      76.60
Combiflor ..............................................................................................................................................................       (2)         (2)      0.35
Conflores Ltda ......................................................................................................................................................       76.60       76.60      76.60
Cultiflores Ltda .....................................................................................................................................................         (2)       0.00       5.87
Cultivos el Lago ....................................................................................................................................................       76.60       76.60      76.60
Cultivos Medellin Ltda ..........................................................................................................................................            4.98        0.02       3.97
Cultivos Miramonte Group ...................................................................................................................................                 0.36        0.00       2.08
     Cultivos Miramonte S.A.
     Flores Mocari S.A.
Cultivos Tahami Ltda. ..........................................................................................................................................              4.30       0.02        1.15
Daflor Ltda ............................................................................................................................................................      0.29       1.15          (2)
De la Pava Guevara e Hijos Ltda ........................................................................................................................                        (1)        (1)         (1)
Dianticola Colombiana Ltda. ................................................................................................................................                  2.57      24.46        8.65
Diveragricola .........................................................................................................................................................         (2)        (2)         (1)
Dynasty Roses Ltda .............................................................................................................................................                (2)        (2)         (1)
El Antelio S.A .......................................................................................................................................................          (2)        (2)         (1)
Envy Farms Group ...............................................................................................................................................                (2)        (2)       0.00
     Envy Farms
     Flores Marandua Ltda.
Expoflora Ltda ......................................................................................................................................................           (1)         (1)        (1)
Exporosas .............................................................................................................................................................         (2)         (2)        (1)
Falcon Farms De Colombia S.A. (formerly Flores de Cajibio Ltda.) ...................................................................                                          0.00        0.00       0.20
Farm Fresh Flowers Group ..................................................................................................................................                   1.42        0.81       1.70
     Agricola de la Fontana
     Flores de Hunza
     Flores Tibati
     Inversiones Cubivan
Fernando de Mier .................................................................................................................................................             (2)         (2)        (1)
Flor Colombiana S.A ............................................................................................................................................               (2)         (2)     62.79
Flora Bellisima Ltda ..............................................................................................................................................         76.60       76.60      76.60
Flora Intercontinental ............................................................................................................................................            (1)         (1)        (1)
Floralex Ltda .........................................................................................................................................................     76.60       76.60      76.60
Florandia Herrera Camacho y Cia .......................................................................................................................                        (1)         (1)        (1)
Floraterra Group ...................................................................................................................................................         7.76        4.59       4.66
     Flores Casablanca S.A.
     Flores San Mateo S.A.
     Siete Flores S.A.
Floreales Group ....................................................................................................................................................              (1)   10.76        6.10
     Floreales
     Kimbaya
Florenal (Flores el Arenal) Ltda ...........................................................................................................................                 0.67       14.05       8.19
Flores Acuarela S.A. ............................................................................................................................................              (1)         (1)        (1)
Flores Aguila ........................................................................................................................................................       0.04          (1)        (1)
Flores Ainsuca Ltda .............................................................................................................................................              (2)         (2)      5.65
Flores Alfaya Ltda ................................................................................................................................................         76.60       76.60      76.60
Flores Andinas .....................................................................................................................................................           (1)         (1)        (1)
Flores Arco Iris .....................................................................................................................................................      76.60       76.60      76.60
Flores Aurora Ltda ...............................................................................................................................................           0.11        1.07       0.08
Flores Bachue ......................................................................................................................................................           (1)         (1)        (1)
Flores Balu ...........................................................................................................................................................        (2)         (2)     76.60
Flores Carmel S.A ................................................................................................................................................             (2)         (2)      2.53
Flores Catalina .....................................................................................................................................................          (2)         (2)     76.60
Flores Colon Ltda .................................................................................................................................................          1.14        4.01       2.08
Flores Comercial Bellavista Ltda .........................................................................................................................                   3.46        0.38       2.14
Flores de Aposentos Ltda ....................................................................................................................................                  (2)         (2)      2.77
Flores de Fragua ..................................................................................................................................................            (2)         (2)     76.60
Flores de la Montana ...........................................................................................................................................             6.71        0.12       5.13
Flores de la Parcelita ...........................................................................................................................................             (1)         (1)        (1)
Flores de la Pradera ............................................................................................................................................           76.60       76.60      76.60
Flores de la Vega Ltda .........................................................................................................................................             3.56        0.21       1.69
Flores de la Vereda ..............................................................................................................................................          76.60       76.60      76.60
Flores del Campo Ltda .........................................................................................................................................              5.38        4.31       4.82
Flores del Lago Ltda ............................................................................................................................................            4.20        0.17       1.99
Flores del Pradro ..................................................................................................................................................           (2)         (2)     76.60
Flores del Rio Group ............................................................................................................................................            0.10        6.96      10.37
42868                               Federal Register / Vol. 61, No. 161 / Monday, August 19, 1996 / Notices

                                                                       Producer/exporter                                                                                      5th       6th       7th

     Agricola Cardenal S.A.
     Flores Del Rio S.A.
     Indigo S.A.
Flores de Oriente .................................................................................................................................................              (2)       (2)     3.34
Flores Depina Ltda ...............................................................................................................................................             9.97      0.00      6.24
Flores de Serrezuela Ltda ....................................................................................................................................                 1.67      0.34      0.21
Flores de Suba .....................................................................................................................................................           9.39      4.76      6.42
Flores de Tenjo Ltda ............................................................................................................................................                (1)       (1)       ( 1)
Flores el Lobo ......................................................................................................................................................            (2)    16.52      2.35
Flores el Majui ......................................................................................................................................................           (2)       (2)    76.60
Flores el Molino S.A .............................................................................................................................................             0.29      1.07      5.37
Flores el Rosal Ltda .............................................................................................................................................            25.05      8.63      3.90
Flores el Zorro Ltda ..............................................................................................................................................            8.84      6.98      2.57
Flores Estrella ......................................................................................................................................................        76.60     76.60        (2)
Flores Galia Ltda ..................................................................................................................................................             (1)       (1)       (1)
Flores Gicro Group ...............................................................................................................................................             6.40      7.00      6.93
     Flores Gicro Ltda
     Flores de Colombia
Flores Guaicata Ltda ............................................................................................................................................             76.60     76.60     76.60
Flores Hacienda Bejucol ......................................................................................................................................                   (2)       (2)       (1)
Flores Juanambu Ltda .........................................................................................................................................                 0.80      1.72      2.30
Flores Juncalito Ltda ............................................................................................................................................               (1)       (1)       ( 1)
Flores la Fragrancia .............................................................................................................................................            11.04     27.14     13.50
Flores la Gioconda ...............................................................................................................................................               (2)       (2)     3.51
Flores la Lucerna .................................................................................................................................................              (1)       (1)       (1)
Flores la Macarena ..............................................................................................................................................                (1)       (1)       (1)
Flores la Union/Gomez Arango & Cia .................................................................................................................                           0.70      0.00      0.00
Flores las Caicas ..................................................................................................................................................          29.83     45.82     14.51
Flores las Mesitas ................................................................................................................................................              (2)       (2)       (1)
Flores los Sauces .................................................................................................................................................              (2)       (2)     1.97
Flores Magara ......................................................................................................................................................             (2)       (2)    76.60
Flores Monserrate Ltda ........................................................................................................................................                1.69      4.69      2.22
Flores Mountgar ...................................................................................................................................................           76.60     76.60        (2)
Flores Naturales ...................................................................................................................................................             (2)       (2)    76.60
Flores Petaluma Ltda ...........................................................................................................................................              76.60     76.60     76.60
Flores Ramo Ltda .................................................................................................................................................               (1)       (1)       (1)
Flores Rio Grande ................................................................................................................................................               (2)       (2)    76.60
Flores S.A .............................................................................................................................................................         (1)       (1)       (1)
Flores Sagaro .......................................................................................................................................................          0.33      3.53      3.29
Flores Sairam Ltda ...............................................................................................................................................               (2)       (2)       (1)
Flores San Carlos ................................................................................................................................................               (1)       (1)       (1)
Flores San Juan S.A ............................................................................................................................................                 (2)       (2)     5.31
Flores Santa Fe Ltda ...........................................................................................................................................               3.07      4.76      4.96
Flores Santa Lucia ...............................................................................................................................................            76.60     76.60     76.60
Flores Selectas .....................................................................................................................................................            (2)       (2)       ( 1)
Flores Silvestres ...................................................................................................................................................          2.43      0.11      2.04
Flores Tejas Verdes Ltda .....................................................................................................................................                76.60     76.60     76.60
Flores Tiba S.A ....................................................................................................................................................           1.24      3.55      0.52
Flores Tocarinda ..................................................................................................................................................            0.00      0.60      0.76
Flores Tomine Ltda ..............................................................................................................................................              2.76      0.27      2.35
Flores Tropicales (Happy Candy) Group .............................................................................................................                            0.96      2.99      2.14
     Flores Tropicales Ltda.
     Happy Candy Ltda.
     Mercedes Ltda.
     Rosas Colombianas Ltda.
Florex Group ........................................................................................................................................................           6.74      7.09      6.97
     Agricola Guacari
     Flores Altamira S.A.
     Flores de Exportacion S.A.
     Santa Helena S.A.
     Flores del Salitre Ltda.
     S.B. Talee de Colombia
Floricola La Gaitana S.A ......................................................................................................................................                 0.03      0.56     5.02
Florimex Colombia Ltda .......................................................................................................................................                    (2)       (2)      (1)
Florval ...................................................................................................................................................................       (2)       (2)    5.98
Fribir Ltda .............................................................................................................................................................         (2)       (2)   76.60
Funza Group ........................................................................................................................................................            0.04      0.42     0.69
     Flores Alborada
     Flores de Funza S.A.
     Flores del Bosque Ltda.
Green Flowers ......................................................................................................................................................             (2)       (2)    19.67
Groex S.A .............................................................................................................................................................       76.60     76.60        (1)
Grupo Andes ........................................................................................................................................................           3.81      0.35      0.22
                                    Federal Register / Vol. 61, No. 161 / Monday, August 19, 1996 / Notices                                                                                           42869

                                                                       Producer/exporter                                                                                      5th         6th          7th

     Cultivos Buenavista Ltda.
     Flores De Los Andes Ltda.
     Flores Horizante Ltda.
     Inversiones Penas Blancas Ltda.
Grupo el Jardin .....................................................................................................................................................               (2)         (2)      0.45
     Agricola el Jardin Ltda.
     La Marotte S.A.
     Orquideas Acatayma Ltda.
Guacatay Group ...................................................................................................................................................              3.62        3.57         4.95
     Agricola Guacatay S.A.
     Jardines Bacata Ltda.
Hacienda Susata ..................................................................................................................................................                (2)         (2)      76.60
Horticultura El Molino ...........................................................................................................................................                (2)         (2)         (1)
HOSA Group ........................................................................................................................................................             0.45        0.12        0.74
     Horticultura De La Sabana S.A.
     Innovacion Andina S.A.
     Minispray S.A.
     HOSA Ltda.
     Prohosa Ltda.
Industrial Agricola Ltda .........................................................................................................................................             0.65        2.99           (2)
Ingro Ltda .............................................................................................................................................................       8.87        0.05         1.43
Inpar .....................................................................................................................................................................   76.60       76.60        76.60
Interflora Ltda .......................................................................................................................................................       76.60       76.60        76.60
Inter Flores Ltda ...................................................................................................................................................            (2)         (2)       76.60
Internacional Flowers ...........................................................................................................................................                (2)         (2)       76.60
Invernavas ............................................................................................................................................................       76.60       76.60        76.60
Inverpalmas ..........................................................................................................................................................         1.14       12.23         3.82
Inversiones Almer Ltda ........................................................................................................................................                  (1)         (1)          (1)
Inversiones Cota ..................................................................................................................................................              (2)         (2)          (1)
Inversiones el Bambu Ltda ..................................................................................................................................                     (1)         (1)          (1)
Inversiones Flores del Alto ...................................................................................................................................                  (2)         (2)       76.60
Inversiones Morcote .............................................................................................................................................                (1)         (1)          (1)
Inversiones Morrosquillo ......................................................................................................................................                  (2)         (2)        4.71
Inversiones Nativa Ltda ........................................................................................................................................              76.60       76.60        76.60
Inversiones Santa Rita Ltda .................................................................................................................................                 14.09       16.89        14.62
Inversiones Supala S.A ........................................................................................................................................                  (2)       3.94         3.89
Inversiones Valley Flowers Ltda ..........................................................................................................................                       (2)         (2)       30.59
Iturrama S.A .........................................................................................................................................................        18.85        7.89           (1)
Jardin ....................................................................................................................................................................   76.60       76.60        76.60
Jardines de America ............................................................................................................................................                 (2)         (2)       14.81
Jardines del Muna ................................................................................................................................................            76.60       76.60        76.60
La Florida .............................................................................................................................................................      76.60       76.60        76.60
La Plazoleta Ltda .................................................................................................................................................              (1)         (1)          (1)
Las Amalias Group ...............................................................................................................................................              9.18        4.59         3.80
     Las Amalias S.A.
     Pompones Ltda.
     La Fleurette de Colombia Ltda.
     Ramiflora Ltda.
Linda Colombiana Ltda ........................................................................................................................................                  1.53        2.42         1.55
Las Flores .............................................................................................................................................................          (1)         (1)          (1)
Los Geranios Ltda ................................................................................................................................................              7.84        0.92         2.12
Luisa Flowers .......................................................................................................................................................             (2)         (2)          (1)
Manjui Ltda ...........................................................................................................................................................           (1)       0.02         0.14
Maxima Farms Group ..........................................................................................................................................                   0.95        0.83         0.24
     Agricola los Arboles S.A.
     Polo Flowers
     Rainbow Flowers
Monteverde Ltda ..................................................................................................................................................              5.73        5.51        5.24
Naranjo Exportaciones e Importaciones ..............................................................................................................                              (2)         (2)      76.60
Natuflora Ltda./San Martin Bloque B ...................................................................................................................                         2.12        1.33        1.69
Oro Verde Group ..................................................................................................................................................              2.45        1.66        0.37
     Inversiones Miraflores S.A.
     Inversiones Oro Verde S.A.
Papagayo Group ..................................................................................................................................................               7.82      15.21          9.96
     Agricola Papagayo Ltda.
     Inversiones Calypso S.A.
Petalos De Colombia Ltda ...................................................................................................................................                  14.86        4.20         4.09
Pisochago Ltda .....................................................................................................................................................             (2)         (2)        5.77
Plantaciones Delta Ltda .......................................................................................................................................                  (1)         (1)          (1)
Plantas Ornamentales De Colombia S.A .............................................................................................................                             0.13        4.77        76.60
Plantas S.A ...........................................................................................................................................................          (1)         (1)          (1)
Proflores Ltda .......................................................................................................................................................           (2)         (2)        0.00
Propagar Plantas ..................................................................................................................................................              (1)         (1)          (1)
Queen’s Flowers Group .......................................................................................................................................                 76.60       76.60        76.60
42870                              Federal Register / Vol. 61, No. 161 / Monday, August 19, 1996 / Notices

                                                                      Producer/exporter                                                                                     5th       6th       7th

     Queen’s Flowers De Colombia Ltda.
     Jardines De Chia Ltda.
     Jardines Fredonia Ltda.
     Agrodindustrial del Rio Frio
     Flores Canelon
     Flores del Hato
     Flores La Valvanera Ltda.
     M.G. Consultores Ltda.
     Flores Jayvana
     Flores el Cacique
     Flores Calima
     Flores la Mana
     Flores el Cipres
     Flores el Roble
     Flores del Bojaca
     Flores el Tandil
     Flores el Ajibe
     Flores Atlas
     Floranova
     Cultivos Generales
Rosaflor ................................................................................................................................................................       (1)       (1)       (1)
Rosales de Colombia Ltda ...................................................................................................................................                    (1)       (1)       (1)
Rosalinda Ltda .....................................................................................................................................................            (2)       (2)       (1)
Rosas de Colombia ..............................................................................................................................................                (1)       (1)       (1)
Rosas Sabanilla Group ........................................................................................................................................                0.23      0.52      0.46
     Flores La Colmena Ltda.
     Rosas Sabanilla Ltda.
     Inversiones La Serena
     Agricola La Capilla
Rosas Tesalia .......................................................................................................................................................          (1)       (1)       (1)
Rosas y Flores Ltda .............................................................................................................................................           76.60     76.60     76.60
Rosex Ltda ...........................................................................................................................................................         (1)       (1)       (1)
Rosicler Ltda ........................................................................................................................................................      76.60     76.60     76.60
Sabana Flowers ...................................................................................................................................................          76.60     76.60     76.60
Sabana Group ......................................................................................................................................................          7.89      2.59      3.48
     Flores de la Sabana S.A.
     Roselandia
Sansa Flowers ......................................................................................................................................................            (1)       (1)       (1)
Santa Rosa Group ...............................................................................................................................................              1.88      2.97      0.96
     Flores Santa Rosa Ltda.
     Floricola la Ramada Ltda.
Santana Flowers Group .......................................................................................................................................                 0.26      2.14          (2)
     Hacienda Curubital
     Inversiones Istra
     Santana Flowers
Senda Brava Ltda ................................................................................................................................................           12.37      0.10       1.57
Shasta Flowers y Compania Ltda ........................................................................................................................                      3.91      0.22       0.00
Siempreviva ..........................................................................................................................................................         (1)       (1)        ( 1)
Soagro Group .......................................................................................................................................................         9.78     13.23       5.81
     Argicola el Mortino Ltda.
     Flores Aguaclara Ltda.
     Flores del Monte Ltda.
     Flores la Estancia
     Jaramillo y Daza
Sunset Farms .......................................................................................................................................................        76.60     76.60     76.60
Superflora Ltda .....................................................................................................................................................          (2)       (2)     6.28
Sweet Farms ........................................................................................................................................................           (2)       (2)       (1)
Tag Ltda ...............................................................................................................................................................     0.31      0.64      3.38
Tempest Flowers ..................................................................................................................................................          76.60     76.60     76.60
The Beall Company (Beall’s Roses) ....................................................................................................................                         (1)       (1)       (1)
Tinzuque Group ....................................................................................................................................................          5.48      0.07      0.01
     Tinzuque Ltda.
     Catu S.A.
Toto Flowers Group .............................................................................................................................................              1.34      1.98      0.09
     Flores de Suesca S.A.
     Toto Flowers
The Tuchany Group .............................................................................................................................................               0.59      0.50      0.83
     Tuchany S.A.
     Flores Sibate S.A.
     Flores Munya S.A.
     Flores Tikaya Ltda.
Uniflor Ltda ...........................................................................................................................................................      6.14      1.11      3.78
Velez de Monchaux Group ..................................................................................................................................                    4.38      6.20      5.10
                                   Federal Register / Vol. 61, No. 161 / Monday, August 19, 1996 / Notices                                                                                  42871

                                                                    Producer/exporter                                                                                   5th       6th        7th

     Velez De Monchaux e Hijos Y
     Cia. S. en C.
     Agroteusa
Victoria Flowers ....................................................................................................................................................     0.76      2.33       1.74
Villa Cultivos Ltda .................................................................................................................................................       (2)       (2)      3.37
Vuelven Ltda ........................................................................................................................................................       (2)     4.20       4.69
   1 No   U.S. sales during this review period.
   2 No   review requested for this period.


   The Department will instruct the                                         This notice also serves as the only                                        3:15 p.m. - 4:15 p.m.—Receive a
Customs Service to assess antidumping                                     reminder to parties subject to                                             report of NMFS Highly Migratory
duties on all appropriate entries.                                        administrative protective order (APO) of                                   Species Activities.
Individual differences between United                                     their responsibility concerning the                                          4:15 p.m. - 5:30 p.m.—Receive a
States price and foreign market value                                     return or destruction of proprietary                                       report of the Joint Shrimp/Reef Fish
may vary from the percentages as stated                                   information disclosed under APO in                                         Committee.
above. The Department will issue                                          accordance with 19 CFR 353.34(d).                                          September 12
appraisement instructions on each                                         Failure to comply is a violation of the
exporter directly to the Customs                                          APO. These administrative reviews and                                        8:30 a.m. - 10:30 a.m.—Receive a
Service.                                                                  notice are in accordance with section                                      report of the Shrimp Management
                                                                          751(a)(1) of the Tariff Act (19 U.S.C.                                     Committee.
   Furthermore, the following deposit                                                                                                                  10:30 a.m. - 11:30 a.m.—Receive a
requirements will be effective upon                                       1675(a)(1)) and 19 CFR 353.22.
                                                                                                                                                     report of the Red Drum Management
publication of these final results of                                       Dated: August 9, 1996.                                                   Committee.
administrative review for all shipments                                   Robert S. LaRussa,                                                           1:00 p.m. - 3:30 p.m.—Reconvene to
of the subject merchandise entered, or                                    Acting Assistant Secretary for Import                                      receive a report of the Reef Fish
withdrawn from warehouse for                                              Administration.                                                            Management Committee.
consumption, as provided by section                                       [FR Doc. 96–20931 Filed 8–16–96; 8:45 am]                                    3:30 p.m. - 4:00 p.m.—Receive a
751(a)(1) of the Act, on or after the                                     BILLING CODE 3510–DS–P                                                     report of Habitat Protection Committee.
publication date of these final results of                                                                                                             4:00 p.m. - 4:30 p.m.—Receive a
review: (1) The cash deposit rate for the                                                                                                            report of the Ad Hoc Communications
reviewed companies will be the most                                       National Oceanic and Atmospheric                                           Committee.
recent rates as listed above; (2) for                                     Administration                                                               4:30 p.m. - 5:00 p.m.—Personnel
previously reviewed or investigated                                                                                                                  Session (CLOSED SESSION).
companies not listed above, the cash                                                                                                                   September 13
                                                                          [I.D. 080996C]                                                               8:30 a.m. - 9:15 a.m.—Receive a
deposit rate will continue to be the
company-specific rate published for the                                   Gulf of Mexico Fishery Management                                          report of Magnuson Act Amendments.
most recent period; (3) if the exporter is                                                                                                             9:15 a.m. - 9:30 a.m.—Receive a
                                                                          Council; Public Meetings
not a firm covered in this review, a prior                                                                                                           report of the Shark Operations Team.
review, or the original less-than-fair-                                   AGENCY:  National Marine Fisheries                                           9:30 a.m. - 9:45 a.m.—Receive a South
value investigation, but the                                              Service (NMFS), National Oceanic and                                       Atlantic Fishery Management Council
manufacturer is, the cash deposit rate                                    Atmospheric Administration (NOAA),                                         Report.
                                                                          Commerce.                                                                    9:45 a.m. - 10:00 a.m. —Receive
will be the rate established for the most
                                                                                                                                                     Enforcement Report.
recent period for the manufacturer of                                     ACTION: Notice of public meeting.                                            10:00 a.m. - 10:30 a.m.—Receive
the merchandise; and (4) the cash
                                                                                                                                                     Director’s Reports.
deposit rate for all other manufacturers                                  SUMMARY:   The Gulf of Mexico Fishery                                        10:30 a.m. - 10:45 a.m.—Other
or exporters will be the ‘‘all other’’ rate                               Management Council (Council) will                                          business to be discussed.
of 3.10 percent. This is the rate                                         convene public meetings.                                                     10:45 a.m. - 11:00 a.m.—Election of
established during the LTFV                                               DATES: The meetings will be held on                                        Chairman and Vice-Chairman.
investigation.                                                            September 9–13, 1996.
                                                                                                                                                     Committees
   These deposit requirements shall                                       ADDRESSES: These meetings will be held
remain in effect until publication of the                                 at the Holiday Inn Crowne Plaza, 333                                       September 9
final results of the next administrative                                  Poydras Street, New Orleans, LA;                                              11:00 a.m. - 12:00 noon—Convene the
review.                                                                   telephone: 504–525–9444.                                                   Personnel Committee. (CLOSED
   This notice also serves as a final                                        Council address: Gulf of Mexico                                         SESSION)
reminder to importers of their                                            Fishery Management Council, 5401                                              1:00 p.m. - 5:00 p.m.—Convene the
responsibility under 19 CFR 353.26 to                                     West Kennedy Boulevard, Suite 331,                                         Joint Shrimp/Reef Fish Management
file a certificate regarding the                                          Tampa, FL 33609.                                                           Committee. The committees will
reimbursement of antidumping duties                                       FOR FURTHER INFORMATION CONTACT:                                           consider a report by LGL Ecological
prior to liquidation of the relevant                                      Wayne E. Swingle, Executive Director;                                      Research Associates, Inc. of Bryan,
entries during this review period.                                        telephone: (813) 228–2815.                                                 Texas that analyzes the procedure and
Failure to comply with this requirement                                                                                                              data available for use by NMFS in
                                                                          SUPPLEMENTARY INFORMATION:
could result in the Secretary’s                                                                                                                      preparing the assessments of the status
presumption that reimbursement of                                         Council                                                                    of red snapper stock. The committees
antidumping duties occurred and the                                                                                                                  will also hear comments by scientific
                                                                          September 11
subsequent assessment of double                                                                                                                      groups on this report and will develop
antidumping duties.                                                           3:00 p.m.—Convene.                                                     its recommendations to the Council.
42872                    Federal Register / Vol. 61, No. 161 / Monday, August 19, 1996 / Notices

September 10                                     [I.D. 080896E]                                   Philadelphia, PA 19153; telephone:
                                                                                                  215–492–0400.
   8:00 a.m. –12:00 noon—Convene the             Mid-Atlantic Fishery Management                     Council address: Mid-Atlantic Fishery
Shrimp Management Committee. This                Council; Meeting                                 Management Council, 300 S. New
committee will review staff revisions to         AGENCY:  National Marine Fisheries               Street, Dover, DE 19901, telephone 302–
Draft Shrimp Amendment 9, which                  Service (NMFS), National Oceanic and             674–2331.
addresses shrimp trawl bycatch, select           Atmospheric Administration (NOAA),               FOR FURTHER INFORMATION CONTACT:
their preferred management alternatives          Commerce.                                        David R. Keifer, Executive Director;
relating to bycatch reduction and will           ACTION: Notice of public meeting.                telephone: 302–674–2331.
schedule public hearings on the                                                                   SUPPLEMENTARY INFORMATION: The
amendment.                                       SUMMARY:   The Mid-Atlantic Fishery              purpose of this meeting is to set quotas
                                                 Management Council’s Summer                      for surfclams and ocean quahogs for
   1:00 p.m. - 5:30 p.m.—Convene the
                                                 Flounder Monitoring Committee will               1997.
Reef Fish Management Committee. This
                                                 hold a public meeting.
committee will review a draft                                                                     Special Accommodations
                                                 DATES: The meeting will be held on
discussion paper containing alternatives
                                                 August 29, 1996, at 10:00 a.m.                     This meeting is physically accessible
for a license limitation system for the                                                           to people with disabilities. Requests for
                                                 ADDRESSES: The meeting will be held at
commercial red snapper fishery that                                                               sign language interpretation or other
                                                 the Days Inn, 4101 Island Avenue,
would limit participation in the fishery.                                                         auxiliary aids should be directed to
                                                 Philadelphia, PA 19153; telephone:
The committee will also schedule                 215–492–0400.                                    Joanna Davis at least 5 days prior to the
meetings of an Ad Hoc Red Snapper                   Council address: Mid-Atlantic Fishery         meeting dates.
Advisory Panel, consisting of                    Management Council, 300 S. New                     Dated: August 13, 1996.
commercial fishermen and industry                Street, Dover, DE 19901; telephone:              Richard H. Schaefer,
representatives, and of scientific groups,       302–674–2331.
                                                                                                  Director, Office of Fisheries Conservation and
to review the discussion paper and               FOR FURTHER INFORMATION CONTACT:                 Management, National Marine Fisheries
recommend the management                         David R. Keifer, Executive Director;             Service.
alternatives for consideration by the            telephone: 302–674–2331.                         [FR Doc. 96–21064 Filed 8–16–96; 8:45 am]
Council in January, 1997.                        SUPPLEMENTARY INFORMATION: The                   BILLING CODE 3510–22–F
September 11                                     purpose of this meeting is to discuss the
                                                 commercial quota and recreational
   8:00 a.m. - 11:30 a.m.—Convene the            harvest limit for 1997.                          [I.D. 080896G]
Red Drum Management Committee.                   Special Accommodations                           Mid-Atlantic Fishery Management
This committee will review a NMFS                                                                 Council; Meeting
assessment of the status of the Gulf-red           This meeting is physically accessible
drum stocks. They will also review a             to people with disabilities. Requests for        AGENCY:  National Marine Fisheries
report of a scientific stock assessment          sign language interpretation or other            Service (NMFS), National Oceanic and
                                                 auxiliary aids should be directed to             Atmospheric Administration (NOAA),
panel which has recommended the
                                                 Joanna Davis at least 5 days prior to the        Commerce.
fishery in Federal waters remain closed
                                                 meeting date.                                    ACTION: Notice of public meeting.
for several years until the spawning
stock is restored.                                 Dated: August 13, 1996.
                                                 Richard H. Schaefer,                             SUMMARY:   The Mid-Atlantic Fishery
   12:30 p.m. - 2:30 p.m.—Convene the                                                             Management Council’s Scup Monitoring
                                                 Director, Office of Fisheries Conservation and
Habitat Protection Committee. This               Management, National Marine Fisheries            Committee will hold a public meeting.
committee will review a draft policy on          Service.                                         DATES: The meeting will be held on
marine aquaculture. The policy would             [FR Doc. 96–21063 Filed 8–16–96; 8:45 am]        September 5, 1996, beginning 10:00 a.m.
be used by the Council in commenting             BILLING CODE 3510–22–F                           ADDRESSES: The meeting will be held at
to Federal and state agencies on such                                                             the Days Inn, 4101 Island Avenue,
projects in the Gulf area.                                                                        Philadelphia, PA 19153; telephone:
                                                 [I.D. 080896F]                                   215–492–0400.
Special Accommodations                                                                               Council address: Mid-Atlantic Fishery
                                                 Mid-Atlantic Fishery Management                  Management Council, 300 S. New
  These meetings are physically                  Council; Meeting
accessible to people with disabilities.                                                           Street, Dover, DE 19901; telephone:
Requests for sign language                       AGENCY:  National Marine Fisheries               302–674–2331.
interpretation or other auxiliary aids           Service (NMFS), National Oceanic and             FOR FURTHER INFORMATION CONTACT:
should be directed to Anne Alford at the         Atmospheric Administration (NOAA),               David R. Keifer, Executive Director;
                                                 Commerce.                                        telephone: 302–674–2331.
Council (see ADDRESSES) by August 30,
                                                 ACTION: Notice of public meeting.                SUPPLEMENTARY INFORMATION: The
1996.
                                                                                                  purpose of this meeting is to discuss the
  Dated: August 13, 1996.                        SUMMARY:    The Mid-Atlantic Fishery             commercial quota and recreational
Richard H. Schaefer,                             Management Council’s Surfclam and                harvest limit for 1997.
                                                 Ocean Quahog Committee, Scientific &
Director, Office of Fisheries Conservation and
                                                 Statistical Committee, and Advisory              Special Accommodations
Management, National Marine Fisheries
Service.                                         Panel will hold a public meeting.                  This meeting is physically accessible
[FR Doc. 96–21066 Filed 8–16–96; 8:45 am]        DATES: The meeting will be held on               to people with disabilities. Requests for
                                                 September 4, 1996, from 10:00 a.m.               sign language interpretation or other
BILLING CODE 3510–22–F
                                                 until 5:00 p.m.                                  auxiliary aids should be directed to
                                                 ADDRESSES: The meeting will be held at           Joanna Davis at least 5 days prior to the
                                                 the Days Inn, 4101 Island Avenue,                meeting dates.
                         Federal Register / Vol. 61, No. 161 / Monday, August 19, 1996 / Notices                                  42873

  Dated: August 13, 1996.                        provided so can keep a history of             Department of the Navy
Richard H. Schaefer,                             services provided as well as gathering
Director, Office of Fisheries Conservation and   data about the services provided.             Rescission of the Notice of Intent To
Management, National Marine Fisheries                                                          Prepare an Environmental Impact
                                                   Affected Public: All those eligible for
Service.                                                                                       Statement for Solid Waste Disposal at
                                                 services provided by Family Support           Naval Station Roosevelt Roads, Puerto
[FR Doc. 96–21065 Filed 8–16–96; 8:45 am]
                                                 Centers (all Department of Defense            Rico
BILLING CODE 3510–22–F
                                                 personnel and their families).
                                                                                               SUMMARY:    The Department of the Navy
                                                   Annual Burden Hours: 1000.
                                                                                               rescinds the Notice of Intent (NOI) to
DEPARTMENT OF DEFENSE                              Number of Respondents: 10,000.              Prepare an Environmental Impact
                                                   Responses per Respondent: 1.                Statement for Solid Waste Disposal
Department of the Air Force                                                                    Alternatives at U.S. Naval Station
                                                   Average Burden per Response: 5
Proposed Collection; Comment                                                                   (NAVSTA) Roosevelt Roads, Puerto Rico
                                                 Minutes.
Request                                                                                        which appeared in the Federal Register
                                                   Frequency: Once.                            on 17 November 1992. The existing
AGENCY: Deputy Chief of Staff,                                                                 sanitary landfill at NAVSTA Roosevelt
                                                 SUPPLEMENTARY INFORMATION:
Personnel; Human Resources                                                                     Roads accepts nonhazardous solid waste
Development Division (HQ USAF/                   Summary of Information Collection             generated at the station as well as solid
DPCH), Department of the Air Force,                                                            waste from in-port ships. In 1992, due
Department of Defense.                              Respondents could be all those             to changes to RCRA Subtitle D
ACTION: Notice.
                                                 eligible for services i.e., all Department    regulations concerning siting and
                                                 of Defense personnel and their families.      operation of sanitary landfills, the Navy
  In compliance with Section                     The completed form is used to gather          sought to dispose of solid waste at a site
3506(c)(2)(A) of the Paperwork                   demographic data on those who use             that would be in compliance with
Reduction Act of 1995, the Human                 Family Support Centers, track what            regulations. Alternatives to have been
Resources Development Division                   programs or services they use and how         addressed in the EIS included no action,
announces the proposed revision to AF            often. The data elements in this form are     use of an existing municipal landfill,
Form 2800, Family Support Center                 the basis for quarterly data gathering        use of a privately operated landfill, and
Individual/Family Data Card. Comments            that is forwarded through Major               establishment of a new landfill on
are invited on: (a) Whether the proposed         Commands to the Air Staff. This form is       NAVSTA Roosevelt Roads.
collection of information is necessary           essential for record keeping and data            In November 1994, NAVSTA
for the proper performance of the                gathering.                                    Roosevelt Roads obtained a permit from
functions of the agency, including                                                             the Puerto Rico Environmental Quality
whether the information shall have               Patsy J. Conner,
                                                                                               Board (EQB) to continue operations at
practical utility; (b) the accuracy of the       Air Force Federal Register Liaison Officer.
                                                                                               the existing sanitary landfill, in
agency’s estimate of the burden of the           [FR Doc. 96–20983 Filed 8–16–96; 8:45 am]     accordance with the Sanitary Landfill
proposed information collection; (c)             BILLING CODE 3910–01–W                        Operating Plan, for a 10-year period.
ways to enhance the quality, utility, and                                                      NAVSTA Roosevelt Roads now desires
clarity of the information to be                                                               to construct a 10-acre vertical lift within
collected; and (d) ways to minimize the          USAF Scientific Advisory Board                the existing sanitary landfill in
burden of the information collection on          Meeting                                       compliance with EQB regulations. After
respondents, including through the use                                                         ten years, the facility to be developed
of automated collection techniques or              The Intel Mission Panel, USAF               would also function as a locale for
other forms of information technology.           Scientific Advisory