Federal Register 1990-09-04

9-4-90
Vol. 55

No. 171

Tuesday

September 4, 1990

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Printing Office

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0-4-90

Vol. 55 No. 171
Pages 35855-36256

Tuesday

September 4, 1990

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I!

Federal Register / Vol. 55, No. 171 / Tuesday, September 4, 1990

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at the end of this issue.

Contents

Federal Register
Vol. 55. No. 171
Tuesday. September 4 . 1990

Agency for Toxic Substances and Disease Registry
notices

Hazardous substances releases and facilities; health
assessments and effects; quarterly listing. 35956

Agricultural Marketing Service

RULES

Celery grown in Florida, 35893

Lemons grown in California and Arizona, 35889

Milk marketing orders:

Eastern South Dakota, 35894
Olives grown in California, and imported, 35891
Tobacco inspection;

Growers' referendum results, 35885
(2 documents)

Agriculture Department

See also Agricultural Marketing Service; Farmers Home
Administration; Federal Crop Insurance Corporation;
Federal Grain Inspection Service
notices

Grant and cooperative agreement awards:

Save the Children Foundation, 35911
(2 documents)

Tuskegee University, 35911

Antitrust Division
notices

Competitive impact statements and proposed consent
judgments:

Brown & Root, Inc., et aL, 35963

Army Department
rules

Environmental quality:

Army actions, environmental effects; civilian and military
personnel, realignments and reductions, 35904
NOTICES

Patent licenses, exclusive:

Schodowsky, S.S., 35934

Bicentennial of the United States Constitution
Commission

See Commission on the Bicentennial of the United States
Constitution

Centers for Disease Control
NOTICES

Agricultural lung disease research program; NiOSH
meeting. 35957

Coast Gua’-d

RULES

Pollution:

Hazardous materials, bulk liquid; waterfront faeibties and
vessels pollution prevention requirements, 36248
MARPOL 73/78 Annex V; pollution prevention
requirements implementation, 35988
PROPOSED RULES

Vessels; industry standards; incorporation and adoption
Correction. 35983

Commerce Department

See also Export Administration Bureau; Foreign-Trade
Zones Board; International Trade A dm i nistrat ion;
National Oceanic and Atmospheric Administration
NOTICES

Agency information collection activities under OMB review,
35913, 35914
(2 documents)

Commission on the Bicentennial of the United States
Constitution

NOTICES

Grants and cooperative agreements; availability, etc.:
Constitution bicentennial educational program, 35924

Commodity Futures Trading Commission
RULES

Organization, functions, and authority delegations:

Director, Economic Analysis Division, et a!., 35897
NOTICES

National Futures Association; authorization to allow direct
electronic entry of registration data into NFA computer
system; pilot program, 35925

Defense Department

See Army Department; Navy Department; Uniformed
Services University of the Health Sciences

Education Department
NOTICES

Agency information collection activities under OMB review.
35935

Energy Department

See also Federal Energy Regulatory Commission; Hearings
and Appeals Office, Energy Department
NOTICES

Grant and cooperative agreement awards:

Bode. Robert E.. 35936

National Academy of Sciences, 35936

University of Missouri-Rolla, 35936

Environmental Protection Agency
NOTICES

Meetings:

FIFRA Scientific Advisory Panel, 35955
Science Advisory Board, 35954
Toxic and hazardous substances control:

Confidential business information and data transfer to
contractors, 35955

Export Administration Bureau
RULES

Export licensing:

Sweden; import certificatc/delivery verification procedure
establishment, 35896

IV

Federal Register / Vol. 55, No. 171 / Tuesday. September 4. 1990 / Contents

Farmers Home Administration

RULES

Program regulations:

Rural housing—

Rental housing appraisals; loan policies, procedures,
and authorizations, 35895
PROPOSED RULES
Program regulations:

Real property—

Multiple family housing loans; security servicing, 35907

Federal Communications Commission

RULES

Radio stations; table of assignments:

Kentucky, 35905
Texas, 35905
PROPOSED RULES
Practice and procedure:

Comparative hearing process for new applicants, 35909
Radio stations; table of assignments:

West Virginia. 35909
Wisconsin, 35910

Federal Crop Insurance Corporation

RULES

Crop insurance; various commodities:

Apples et a!., 35887
Arizona-Califomia citrus. 35888
Potatoes. 35888

Federal Deposit Insurance Corporation

NOTICES

Meetings; Sunshine Act, 35981

Federal Energy Regulatory Commission

NOTICES

Electric rate, small power production, and interlocking
directorate filings, etc.:

Western Massachusetts Electric Co. et al., 35937
Hydroelectric applications, 35937
Natural gas certificate filings:

Northwest Pipeline Corp. et al., 35945
Applications, hearings, determinations, etc,:

CNG Transmission Corp., 35949
Mid Louisiana Gas Co., 35949
Northwest Pipeline Corp., 35949
Paiute Pipeline Co., 35950
United Gas Pipe Line Co., 35950

'ederal Grain Inspection Service

NOTICES

Agency designation actions:

Alabama, 35912
Illinois et al., 35912
Iowa, 35913
Iowa et al., 35911
Iowa et al.; correction. 35913
Meetings:

Advisory Committee, 35913

Federal Highway Administration

RULES

Payment procedures:

Construction engineering costs; reimbursement, 35903

Federal Maritime Commission
RULES

Passenger vessels:

Security for protection of public; maximum required
performance amount
Correction, 35983

Fish and Wildlife Service

RULES

Hunting:

Refuge-specific hunting regulations; correction, 35906

NOTICES

Environmental statements; availability, etc.:

National Wildlife Refuge System; management, 35962

Food and Drug Administration

NOTICES

Organization, functions, and authority delegations, 35957

Foreign-Trade Zones Board

NOTICES

Applications, hearings, determinations, etc.:

Arizona—

Conair Corp.; warehousing/manufacturing facilities,

35914
Louisiana—

AT&T telephone and computer equipment plant, 35915
North American Shipbuilding, Inc.; shipyard facilities,

35915

Wisconsin, 35916

Health and Human Services Department

See Agency for Toxic Substances and Disease Registry;
Centers for Disease Control; Food and Drug
Administration; Health Care Financing Administration;
National Institutes of Health; Public Health Service

Health Care Financing Administration
RULES

Medicare:

Inpatient hospital prospective payment system and fiscal
year 1991 rates, 35990
NOTICES
Privacy Act:

Systems of records, 35957
Medicare:

Physicians’ services; model fee schedule. 36178

Health Resources and Services Administration

See Public Health Service

Hearings and Appeals Office, Energy Department

NOTICES

Special refund procedures; implementation, 35950

Interior Department

See Fish and Wildlife Service; Land Management Bureau

International Boundary and Water Commission, United
States and Mexico

RULES

Freedom of Information Act; implementation:

Uniform fee schedule and administrative guidelines, 35898

International Trade Administration

NOTICES

Antidumping:

Television receivers, monochrome and color, from Japan,
35916

Federal Register / Vol. 55, No. 171 / Tuesday, September 4. 1990 / Contents

V

Countervailing duties:

Cotton shop towels from Peru, 35921
Fresh cut flowers from Ecuador, 35922

Interstate Commerce Commission
NOTICES

Meetings; Sunshine Act, 35981
Rail carriers:

Direct service orders—

D&H Corp. et al.. 35962

Railroad operation, acquisition, construction, etc.:

Columbus & Greenville Railway Co., 35963

Justice Department

See Antitrust Division

Land Management Bureau

NOTICES

Meetings:

Shoshone District Advisory Council, 35961
Realty actions; sales, leases, etc.:

California; correction, 35983
Withdrawal and reservation of lands:

Colorado; correction, 35983
Wyoming; correction, 35983

Mexico and United States, International Boundary and
Water Commission

See International Boundary and Water Commission, United
States and Mexico

national Archives and Records Administration

NOTICES

Agency records schedules; availability, 359G9

National Institute for Occupational Safety and Health

See Centers for Disease Control

National Institutes of Health

NOTICES

Meetings:

National Cancer Institute. 35960

National Oceanic and Atmospheric Administration
NOTICES

Coastal zone management programs and estuarine
sanctuaries:

State programs—

Evaluation findings availability, 35922
Intent to evaluate performance. 35923
Permits:

Marine mammals, 35923, 35924
(2 documents)

Marine mammals; correction, 35924

National Science Foundation

NOTICES

Antarctic Conservation Act of 1978: permit applications,
etc., 35970, 35971
(2 documents)

Navy Department
NOTICES

Environmental statements; availability, etc.:

Base realignments and closures—

Naval Ordnance Station Louisville, KY, 35934

Nuclear Regulatory Commission
NOTICES

Applications , hearings, determinations, etc.:

Carolina Power & Light Co., 35971
Philadelphia Electric Co., 35974

Nuclear Waste Technical Review Board
NOTICES

Meetings, 35975

Personnel Management Office

NOTICES

Meetings:

Federal Prevailing Rate Advisory Committee. 35977

Public Health Service

See also Agency for Toxic Substances and Disease

Registry: Centers for Disease Control; Food and Drug
Administration; National Institutes of Health

NOTICES

Committees; establishment renewal, termination, etc.:

National Vaccine Advisory Committee. 35961
National toxicology program:

Toxicology and carcinogenesis studies—

Coconut oil fatty acids diethanolamine, etc., 35961

Resolution Trust Corporation
NOTICES

Meetings; Sunshine Act, 35981

Small Business Administration
PROPOSED RULES

Small business size standards:

Nonmanufacturer rule waivers—

Petroleum products (nine classes), 35908

State Department

NOTICES

Metric system implementation policy; availability. 35977

Thrift Supervision Office

NOTICES

Conservator appointments:

Ambassador Federal Savings & Loan Association, 35978
Broken Arrow Savings Association, F.A., 35979
First Savings & Loan Association, F.A., 35979
Receiver appointments:

Ambassador Savings & Loan Association, 35979
Broken Arrow Federal Savings & Loan Association, 35979
Chillicothe Federal Savings & Loan Association, 35979
First Federal Savings & Loan Association. 35979
Heritage Savings Association, F.A., 35979
Investment Federal Savings & Loan Association, 35979
Jefferson Savings & Loan Association, 35980
Lakeland Savings Bank, F.S.B., 35980
Westwood Savings & Loan Association, 35980

Transportation Department

See also Coast Guard; Federal Highway Administration;
Urban Mass Transportation Administration

NOTICES

Aviation proceedings:

Agreements filed; weekly receipts, 35977
Certificates of public convenience and necessity and

foreign air carrier permits; weekly applications. 35978

Treasury Department

See Thrift Supervision Office

VI

Federal Register / Voi 55. No. 171 / Tuesday, September 4, 1990 / Contents

Uniformed Services University of the Health Sciences
NOTICES

Meetings; Sunshine Act 35981

Urban Mass Transportation Administration
NOTICES

Grants; UMTA sections 3 and 9 obligations. 35978

Separate Parts In This Issue
Part II

Department of Transportation. Coast Guard, 35986

Part III

Department of Health and Human Services. Health Care
Financing Administratioa 35990

Part IV

Department of Health and Human Services, Health Care
Financing Administration. 36178

Part V

Department of Transportation. Coast Guard., 36248

Reader Aids

Additional information, including a list of public
laws, telephone numbers, and finding aids, appears
in the Reader Aids section at the end of this issue.

Federal Register / Vol. 55, No. 171 / Tuesday, September 4, 1990 / Contents

VII

CFR PARTS AFFECTED IN THIS ISSUE

A cumulative list of the parts al

the Reader Aids section at the

7 CFR

29 (2 documents).

.35885

403.

405.

.35886

406.

.35886

409 (2 documents)...

.35886,

35888

416.

.35886

422 (2 documents)...

.35886,

35888

425.

430.

.35886

435.

.35886

437.

.35886

441.

443.

.35886

445.

.35886

446.

.35886

447.

.35886

450.

.35886

451.

.35886

454.

.35886

455.

.35886

456.

.35886

910.

.35889

932.

944.

967.

.35893

1076.

1922.

.35895

1930.

1944.

.35895

Proposed Rules:

1965.

.35907

13 CFR

Proposed Rules:

121.

.35908

15 CFR

775.

.35896

17 CFR

140.

.35897

22 CFR

1102.

.35898

23 CFR

140.

.35903

32 CFR

651.

.35904

33 CFR

126.

.36248

151.

154.

155 (2 documents)....

.35986,

36248

156.

158.

Proposed Rules:

127.

.35983

154.

.35983

42 CFR

412.

413.

.35990

46 CFR

25.

.35986

540.

Proposed Rules:

25.

.35983

32.

.35983

34.

..35983

50.

.35983

52.

... 35983

53.

.35983

54

.35983

55...

.35983

30.

57....

.35983

58.

59....

.35983

71.

.35983

76.

.35983

91.

.35983

92.

.35983

95.

.35983

107.

.35983

103.

.35983

150.

.35983

153.

.35983

162..

.35983

163.

.35983

169.

.35983

170. .

.35983

174...

.35983

182.

.35983

189.

.35983

190.

.35983

193.

.35983

47 CFR

73 (2 documents)..
Proposed Rules:

1 .

73 (2 documents)..

50 CFR

32.

.35905

.. 35909
.35909,
35910

.. 35906

Rules and Regulations

Federal Register

Vol. 55. No. 171

Tuesday, September 4. 1990

35885

This section of the FEDERAL REGISTER
contains regulatory documents having
general applicability and legal effect, most
of which are keyed to and codified in
the Code of Federal Regulations, which is
published under 50 titles pursuant to 44
U.S.C. 1510.

The Code of Federal Regulations is sold
by the Superintendent of Documents.

Prices of new books are listed in the
first FEDERAL REGISTER issue of each
week.

DEPARTMENT OF AGRICULTURE
Agricultural Marketing Service
7 CFR Part 29
[TB-89-Q17]

Tobacco Inspection; Growers’
Referendum Results

agency: Agricultural Marketing Service,
USDA.

ACTION: Final rule.

summary: This document contains the
determination with respect to the
referendum on the designation of
Metter. Georgia, as a tobacco auction
market. A mail referendum was
conducted during the period of June 4-6,
1990, among active tobacco growers
residing in the counties of Candler,
Bulloch, Evans, Tattnall, Toombs, and
Emanuel, Georgia, to determine
producer approval of the designation of
Metter as a new market. Eligible
producers voted in favor of the
designation. Therefore, for the 1990 and
succeeding flue-cured marketing
seasons, Metter, Georgia, shall be
designated as a tobacco auction market.
The regulations are amended to reflect
this new designated market.

EFFECTIVE date: October 4.1990.

FOR FURTHER INFORMATION CONTACT:
Ernest L. Price, Director, Tobacco
Division, Agricultural Marketing
Service, United States Department of
Agriculture, P.O. Box 96450, room 502
Annex, Washington, DC 20090-6456,
telephone (202) 447-4101.
SUPPLEMENTARY INFORMATION: A notice
was published in the May 29,1990, issue
of the Federal Register advising that a
referendum would be conducted among
active flue-cured producers who reside
in the counties of Candler, Bulloch,
Evans, Tattnall. Toombs, and Emanuel,
Georgia, to ascertain if such producers
favored the designation of Metter.

The notice of referendum announced
the determination by the Secretary that
Metter, Georgia, would be designated as
a flue-cured tobacco auction market and
receive mandatory. Federal grading of
tobacco sold at auction for the 1990 and
succeeding seasons, subject to the
results of the referendum. The
determination was based on the
evidence and arguments presented at a
public hearing held in Metter, Georgia,
on November 3,1989, pursuant to
applicable provisions of the regulations
issued under the Tobacco Inspection
Act. as amended. The referendum was
held in accordance with the provisions
of the Tobacco Inspection Act as
amended (7 U.S.C. 511d) and the
regulations set forth in 7 CFR 29.74.

Ballots for the June 4-8 referendum
were mailed to 367 producers. Approval
required votes in favor of the proposal
by two-thirds of the eligible voters who
cast valid ballots. The Department
received a total of 82 responses: 61
eligible producers voted in favor of the
designation of Metier, 14 eligible
producers voted against the designation,
and 7 ballots were determined to be
invalid.

This rule has been reviewed under
USDA procedures established to
implement Executive Order 12291 and
Departmental Regulation 1512-1 and has
been determined to be a "nonmajor”
rule because it does not meet any of the
criteria established for major rules
under the executive order.

Additionally, in conformance with the
provisions of Public Law 96-354, the
Regulatory Flexibility Act. full
consideration has been given to the
potential economic impact upon small
business. Most of the firms which would
be affected by this rule are small
businesses. Small agricultural producers
have been defined by the Small
Business Administration (13 CFR 121.2)
as those having gross annual revenues
for the last three years of less than
$500,000, and small agricultural service
firms are defined as those whose gross
annual receipts are less than $3,500,000.
The Administrator, Agricultural
Marketing Service, has determined that
this action will not have a significant
economic impact on a substantial
number of small entities. This rule will
not substantially affect the normal
movement of the commodity in the
marketplace. Compliance with this rule
will not impose substantial direct

economic cost, recordkeeping, or
personnel workload changes on small
entities, and will not alter the market
share of competitive positions of small
entities relative to the large entities and
will in no way affect normal competition
in the marketplace.

List of Subjects in 7 CFR Part 29

Administrative practice and
procedure, Advisory committees,
Government publications. Imporls,
Pesticides and pests. Reporting and
recordkeeping requirements, Tobacco.

For the reasons set forth in the
preamble, 7 CFR part 29. subpart D, is
amended as follows:

Subpart D—Order of Designation of
Tobacco Markets.

1. The authority citation for 7 CFR
part 29, eubpart D, continues to read as
follows:

Authority: Sec. 5. 49 Stat. 732, as amended
by sec. 157(a)(1). 95 Stat. 374 (7 U.S.C. 511d).

§29.6001 (Amended]

2. In S 29.6001, the table is amended
by removing under item (q) in the
column Auction Markets the word
Metter. Georgia, and adding a new entry
(eee) to read as follows:

Territory

Types

of

tobac¬

cos

Auction

markets

Order of

designa- Citation
toon

(eee)

#

Flue-

•

Metter......

• •

--- Septem¬

Geor¬

Cured.

ber 4 ,

gia.

1990.

Dated: August 29,1990.

Kenneth C. Clayton,

Acting Administrator.

[FR Doc. 90-20743 Filed 8-31-90; 8:45 am)
B1LLINQ CODE 34UM)3-N

7 CFR Part 29
ITB-89-0161

Tobacco Inspection; Growers’
Referendum Results

agency: Agricultural Marketing Service,
USDA.

action: Final rule.

summary: This document contains the
determination with respect to the

35886 Federal Register / Vol. 55, No. 171 / Tuesday, September 4, 1990 / Rules and Regulations

referendum on the designation of
Fitzgerald, Georgia, as a tobacco auction
market. A mail referendum was
conducted during the period of June 4-5.
1990. among active tobacco growers
residing in the counties of Ben Hill,
Coffee, Irwin, Turner, Wilcox, and
Telfair, Georgia, to determine producer
approval of the designation of Fitzgerald
as a new market. Eligible producers
voted in favor of the designation.
Therefore, for the 1990 and succeeding
flue-cured marketing seasons,

Fitzgerald, Georgia, shall be designated
as a tobacco auction market. The
regulations are amended to reflect this
new designated market.

EFFECTIVE DATE: October 4,1990.

FOR FURTHER INFORMATION CONTACT:
Ernest L. Price, Director, Tobacco
Division, Agricultural Marketing
Service, United States Department of
Agriculture, P.O. Box 96456, room 502
Annex, Washington, DC 20090-6456,
telephone (202) 447-4101.
SUPPLEMENTARY INFORMATION: A notice
was published in the May 29,1990, issue
of the Federal Register advising that a
referendum would be conducted among
active flue-cured producers who reside
in the counties of Ben Hill, Coffee, Irwin,
Turner. Wilcox, and Telfair, Georgia, to
ascertain if such producers favored the
designation of Fitzgerald.

The notice of referendum announced
the determination by the Secretary that
Fitzgerald. Georgia, would be
designated as a flue-cured tobacco
auction market and receive mandatory.
Federal grading of tobacco sold at
auction for the 1990 and succeeding
seasons, subject to the results of the
referendum. The determination was
based on the evidence and arguments
presented at the public hearing held in
Fitzgerald, Georgia, on November 2,

1989, pursuant to applicable provisions
of the regulations issued under the
Tobacco Inspection Act, as amended.
The referendum was held in accordance
with the provisions of the Tobacco
Inspection Act, as amended (7 U.S.C.
511d) and the regulations set forth in 7
CFR 29.74.

Ballots for the June 4-8 referendum
w r ere mailed to 462 producers. Approval
required votes in favor of the proposal
by two-thirds of the eligible voters who
cast valid ballots. The Department
received a total of 116 responses: 89
eligible producers voted in favor of the
designation of Fitzgerald; 18 eligible
producers voted against the designation,
and 9 ballots were determined to be
invalid.

This rule has been reviewed under
USDA procedures established to
implement Executive Order 12291 and

Departmental Regulation 1512-1 and has
been determined to be a "nonmajor"
rule because it does not meet any of the
criteria established for major rules
under the executive order.

Additionally, in conformance with the
provisions of Public Law 96-354, the
Regulatory Flexibility Act, full
consideration has been given to the
potential economic impact upon small
business. Most of the Firms which would
be affected by this rule are small
businesses. Small agricultural producers
have been defined by the Small
Business Administration (13 CFR 121.2)
as those having gross annual revenues
for the last three years of less than
$500,000, and small agricultural service
Firms are defined as those whose gross
annual receipts are less than $3,500,000.
The Administrator, Agricultural
Marketing Service, has determined that
this action will not have a significant
economic impact on a substantial
number of small entities. This rule will
not substantially affect the normal
movement of the commodity in the
marketplace. Compliance with this rule
will not impose substantial direct
economic cost, recordkeeping, or
personnel workload changes on small
entities, and will not alter the market
share of competitive positions of small
entities relative to the large entities and
will in no way affect normal competition
in the marketplace.

List of Subjects in 7 CFR Part 29

Administrative practice and
procedure, Advisory committees.
Government publications, Imports,
Pesticides and pests, Reporting and
recordkeeping requirements, Tobacco.

For the reasons set forth in the
preamble, 7 CFR part 29, subpart D, is
amended as follows:

Subpart D—Order of Designation of
Tobacco Markets.

1. The authority citation for 7 CFR
part 29, subpart D. continues to read as
follows:

Authority: Sec. 5, 49 Stat. 732, as amended
by sec. 157(a)(1). 95 Stat. 374 (7 U.S.C. 511d).

§ 29.8001 [Amended]

2. In S 29.8001, the table if amended by
removing under item (x) in the column
Auction Markets the word Fitzgerald,
Georgia, and adding a new entry (ddd)
to read as follows:

Territory

Types

of

tobac¬

cos

Auction

markets

Order of

designa- Citation
Uon

•

•

• •

(ddd)

Rue-

Fitzger¬

.. Septem¬

Geor¬

Cured.

ald.

ber 4.

gia.

1990.

Dated: August 29.1990.

Kenneth C. Clayton,

Acting Administrator.

[FR Doc. 90-20740 Filed 8-3-90; 8:45 am]

BILLING CODE 3410-02-11

Federal Crop Insurance Corporation

7 CFR Parts 403, 405, 406, 409, 416,
422, 425, 430, 435, 437, 441, 443, 445,
446, 447, 450, 451, 454, 455, and 456

[General Amendment Doc. No. 7987S1

Apple, Arizona/California Citrus,
Canning and Freezing Sweet Corn,
Canning Peach, Hybrid Seed (Corn),
Macadamia Nuts, Macadamia Trees,
Pea, Peach, Peanut, Pepper, Popcorn,
Potato, Prune, Sugar Beet, Table
Grape, Tobacco (Quota Plan), Fresh
Market Tomato (Guaranteed), Walnut,
and Nursery Crop Insurance
Regulations (respectively)

AGENCY: Federal Crop Insurance
Corporation, USDA.
action: Interim rule with request for
comment.

summary: The Federal Crop Insurance
Corporation (FCIC) amends the Apple,
Arizona/Califomia Citrus, Canning and
Freezing Sweet Com, Canning Peach.
Hybrid Seed (Com), Macadamia Nuts,
Macadamia Trees, Pea, Peach, Peanut,
Pepper, Popcorn, Potato, Prune, Sugar
Beet, Table Grape, Tobacco (Quota
Plan), Fresh Market Tomato
(Guaranteed), Walnut, and Nursery
Crop Insurance Regulations (7 CFR Parts
405, 409, 437, 451, 443, 455, 456, 416, 403,
425, 445, 447, 422, 450, 430, 441. 435. 454,
446, and 406, respectively), effective for
the 1991 and succeeding crop years, by
adding a mandatory amendment to each
of the Crop Insurance Policies set forth
in the Code of Federal Regulations part
numbers above. The intended effect of
this rule is to provide that,
notwithstanding the terms of the crop
insurance policy and any contract for
crop insurance, coverage under the
terms of such policies will be effective
subject to the availability of
appropriations for the 1991 and
subsequent crop years.

DATES: This interim rule is effective on
September 4.1990. Written comments,

Federal Register / VoL 55, No. 171 / Tuesday, September 4, 1990 / Rules and Regulations 35837

data, and opinions on this interim rule
must be submitted not later than
November 3.1990, to be sure of
consideration.

aodresses: Written comments on this
proposed rule should be sent to Peter F.
Cole, Office of the Manager, Federal
Crop Insurance Corporation, room 4090,
South Building, U.S. Department of
Agriculture, Washington, DC 20250.

FOR FURTHER INFORMATION CONTACT:
Peter F. Cole. Secretary, Federal Crop
Insurance Corporation. U.S. Department
of Agriculture, Washington, DC. 20250,
telephone (202) 447-3325.
SUPPLEMENTARY INFORMATION: This
action has been reviewed under USDA
procedures established by Departmental
Regulation 1512-1. This action does not
constitute a reveiw as to the need,
currency, clarity, and effectiveness of
the regulations affected by this rule
under those procedures. The sunset
review date established for those
regulations is contained in each
regulation.

David W. Gabriel, Acting Manager,
FCIC, (1) has detemined that this action
is not a major rule as defined by
Executive Order 12291 because it will
not result in: (a) An annual effect on the
economy of $100 million or more; (b)
major increases in cost or prices for
consumers, individual industries,
Federal, State, or local governments, or
a geographical region; or (c) significant
adverse effects on competition,
employment, investment, productivity,
innovation, or the ability of U.S.-based
enterprises to compete with foreign-
based enterprises in domestic or export
markets; and (2) certifies that this action
will not increase the Federal paperwork
burden for individuals, small businesses,
and other persons and will not have a
significant economic impact on a
substantial number of small entities.

This action is exempt from the
provisions of the Regulatory Flexibility
Act; therefore, no Regulatory Flexibility
Analysis was prepared.

This program is listed in the Catalog
of Federal Domestic Assistance under
No. 10.450.

This program is not subject to the
provisions of Executive Order 12372
which requires intergovernmental
consultation with State and local
officials. See the Notice related to 7 CFR
part 3015, subpart V, published at 48 FR
29115. June 24,1983.

This action is not expected to have
any signifiant impact on the quality of
the human environment, health, and
safety. Therefore, neither an
Environmental Assessment nor an
Environmental Impact Statement is
needed.

FCIC herewith amends the Apple,
Arizona/California Citrus, Canning and
Freezing Sweet Com, Canning 5
Processing Peach, Hybrid Seed (Corn),
Macadamia Nuts. Macadamia Trees,
Pea, Peach, Peanut, Pepper, Popcorn,
Potato, Prune, Sugar Beet, Table Grape,
Tobacco (Quota Plan), Fresh Market
Tomato (Guaranteed), Walnut, and
Nursery Crop Insurance Regulations (7
CFR parts 405. 409, 437, 451, 443. 455,

456, 416, 403, 425, 445, 447, 422, 450, 430,
441, 435, 454, 446, and 406, respectively),
effective for the 1991 and succeeding
crop years, to provide a mandatory
amendment to the provisions for
coverage therein to provide that,
notwithstanding the terms of the crop
insurance policy, coverage will be
effective subject to the availability of
appropriations for the 1991 and
subsequent crop years.

The President’s budget for 1991
provides for the elimination of the
Federal Crop Insurance program by not
funding the program for the 1991 crop
year. In view of the uncertainty of
Congressional action on that budget
proposal, FCIC believes it is necessary
to publish a rule requiring an
amendment to all policies restating the
general rule that public programs are
subject to the availability of funds, so as
to put all parties on notice that
insurance coverage may not be
available for the 1991 crop year.
Equitable principles dictate that all
parties concerned be aware of the
uncertainty of insurance for the 1991
crop year. Therefore, and since this rule
is for the benefit of the policyholder, the
rule is published as an Interim Rule
without opportunity for prior notice and
comment.

A similar mandatory amendment was
added by Interim Rule to all
endorsements issued by FCIC under the
General Crop Insurance Regulations (7
CFR part 401) and published in the
Federal Register on Wednesday,
February 28,1990, at 55 6971.

This rule is effective on September 4,
1990. FCIC is soliciting public comment
on this proposed rule for 60 days
following publication in the Federal
Register. Written comment should be
6ent to Peter F. Cole, Office of the
Manager, Federal Crop Insurance
Corporation, room 4090. South Building,
U.S. Department of Agriculture,
Washington. DC 20250.

All written comments received
pursuant to this interim rule will be
available for public inspection and
copying in the Office of the Manager,
Federal Crop Insurance Corporation,
room 4090, South Building, U.S.
Department of Agriculture. Washington,

DC 20250, during regular business hours,
Monday through Friday.

This rule will be scheduled for review
so that any amendment made necessary
by public comment will be published in
the Federal Register as quickly as
possible.

List of Subjects in 7 CFR Parts 403, 405,
406, 409, 416, 422, 425, 430, 435, 437, 441,
443,445, 446, 447. 450, 451,451,455, and
456

Crop insurance: Peach. Apple,

Nursery Crop, Arizona/Califomia
Citrus, Pea, Potato, Peanut Sugar Beet,
Tobacco (Quota Plan), Canning and
Freezing Sweet Corn, Table Grape,
Hybrid Seed (Corn), Pepper, Walnut,
Popcorn, Prune, Canning & Processing
Peach. Fresh Market Tomato
(Guaranteed). Macadamia Nuts, and
Macadamia Trees (respectively).

Interim Rule

Accordingly, pursuant to the authority
contained in the Federal Crop Insurance
Act, as amended (7 U.S.C. 1501 el seq.),
the Federal Crop Insurance Corporation
hereby amends the Apple, Arizona/
California Citrus, Canning and Freezing
Sweet Corn, Canning & Processing
Peach. Hybrid Seed (Com), Macadamia
Nuts, Macadamia Trees. Pea, Peach,
Peanut. Pepper, Popcorn. Potato. Prune.
Sugar Beet, Table Grape, Tobacco
(Quota Plan), Fresh Market Tomato
(Guaranteed), Walnut, and Nursery
Crop Insurance Regulations (7 CFR parts
405, 409, 437, 451, 443, 455. 456, 416, 403,
425, 445, 447, 422, 450, 430. 441, 435, 454,

446, and 406. respectively), effective for
the 1991 and succeeding crop years, on
any existing carryover contract or new
contract for the 1991 crop year, by
adding a mandatory amendment to the
provisions for coverage therein. This
rule amends the regulations set forth
herein in the following instances;

PARTS 403, 405, 406, 409, 416, 422,

425, 430, 435, 437,441, 443, 445, 446,

447, 450, 451, 454, 455, and 458
(AMENDED]

1. The authority citation for 7 CFR
parts 403, 405, 406, 409. 416, 422, 425, 430,
435. 437, 441. 443, 445, 446, 447, 450. 451,
454. 455, and 456, continues to read as
follows:

Authority: 7 U.S.C. 1506.1518.

§ 455.7 and 456.7 l Amended]

2. 7 CFR 455.7(d), and 456.7(d), are
amended by adding a new paragraph 20
to read as follows:

20. Notwithstanding the terms of the crop
insurance policy and any contiact for crop
insurance under the provisions of this part.

35888 Federal Register / Vol. 55, No. 171 / Tuesday, September 4, 1990 / Rules and Regulations

coverage under the terms of such crop
insurance policy will be effective subject to
the availability of appropriations.

§§ 403.7, 405.7, 409.7, 416.7, 422.7, 425.7,

430.7, 435.7, 437.7, 441.7, 443.7, 445.7, 446.7,

447.7.450.7, 451.7, and 454.7 [Amended]

3. 7 CFR 403.7(d), 405.7(d), 409.7(d),
416.7(d). 422.7(d). 425.7(d), 430.7(d).
435.7(d), 437.7(d). 441.7(d), 443.7(d),
445.7(d), 446.7(d), 447.7(d), 450.7(d),
451.7(d), and 454.7(d), and are amended
by adding a new paragraph 21 to read as
follows:

21. Notwithstanding the terms of the crop
insurance policy and any contract for crop
insurance under the provisions of this part,
coverage under the terms of such crop
insurance policy will be effective subject to
the availability of appropriations.

§406.7 [Amended]

4. 7 CFR 406.7(d) is amended by
adding a new paragraph 22 to read as
follows:

22. Notwithstanding the terms of the crop
insurance policy and any contract for crop
insurance under the provisions of this part,
coverage under the terms of such crop
insurance policy will be effective subject to
the availability of appropriations.

Done in Washington, DC on August 27,

1990.

David W. Gabriel,

Acting Manager, Federal Crop Insurance
Corporation.

[FR Doc. 90-20673 Filed 6-31-90; 8:45 am]

BILLING CODE 3410-OS-ftl

7 CFR Part 409

[Amendment No. 2; Doc. No. 7755S]

Arizona-California Citrus Crop
Insurance Regulations

agency: Federal Crop Insurance
Corporation, USDA.
action: Final rule.

summary: The Federal Crop Insurance
Corporation (FCIC) hereby adopts, as
Final rule, an interim rule which was
published in the Federal Register on
Friday, September 22,1989, at 54 FR
38961. The interim rule amended the
Arizona-California Citrus Crop
Insurance Regulation (7 CFR part 409) to
change the date by which insureds are
required to submit reports of production
for insurance purposes. The intended
effect of this rule is to change the
incorrect date to reflect the date when
such information becomes available to
citrus insureds.

effective date: This rule is effective
September 4,1990.

FOR FURTHER INFORMATION CONTACT.

Peter F. Cole, Secretary, Federal Crop
Insurance CorporaMon, U.S. Department

of Agriculture, Washington, DC 20250,
telephone (202) 447-3325.
SUPPLEMENTARY INFORMATION: This
action has been reviewed under USDA
procedures established by Departmental
Regulation 1512-1. This action does not
constitute a review as to the need,
currency, clarity, and effectiveness of
these regulations under those
procedures. The sunset review date for
these regulations remains as February 1,
1994.

David W. Gabriel, Acting Manager,
FCIC, (1) has determined that this action
is not a major rule as defined by
Executive Order 12291 because it will
not result in: (a) An annual effect on the
economy of $100 million or more; (b)
major increases in costs or prices for
consumers, individual industries,
federal, State, or local governments, or a
geographical region; or (c) significant
adverse effects on competition,
employment, investment, productivity,
innovation, or the ability of U.S.-based
enterprises to compete with foreign-
based enterprises in domestic or export
markets; and (2) certifies that this action
will not increase the federal paperwork
burden for individuals, small businesses,
and other persons.

This action is exempt from the
provisions of the Regulatory Flexibility
Act; therefore, no Regulatory Flexibility
Analysis was prepared.

This program is listed in the Catalog
of Federal Domestic Assistance under
No. 10.450.

This program is not subject to the
provisions of Executive Order 12372
which requires intergovernmental
consultation with State and local
officials. See the Notice related to 7 CFR
part 3015, subpart V, published at 48 FR
29115, June 24,1983.

This action is not expected to have
any significant impact on the quality of
the human environment, health, and
safety. Therefore, neither an
Environmental Assessment nor an
Environmental Impact Statement is
needed.

On Friday, September 22,1989, FCIC
published an interim rule in the Federal
Register at 54 FR 38961, amending the
Arizona-California Citrus Crop
Insurance Regulations (7 CFR part 409)
to change the incorrect date by which
insureds are required to submit reports
of production for insurance purposes to
reflect the date when such information
becomes available to citrus insureds.

Written comments were solicited for
60 days after publication in the Federal
Register, and the rule was scheduled for
review so that any amendment made
necessary by public comment could be
published in the Federal Register as
quickly as possible.

No comments were received,
therefore, the interim rule is hereby
adopted as a final rule.

List of Subjects in 7 CFR Part 409

Crop Insurance; Arizona-California
Citrus.

Final Rule

Accordingly, the interim rule
published in the Federal Register on
Friday. September 22,1989, at 54 FR
38961, is hereby adopted as a final rule.

Authority: 7 U.S.C. 1506.1516.

Done in Washington, DC, on August 27,
1990.

David W. Gabriel,

Acting Manager, Federal Crop Insurance
Corporation.

[FR Doc. 90-20674 Filed 6-31-90; 8:45 am]

BILUNG CODE 3410-08-M

7 CFR Part 422

[Amendment No. 4; Doc. No. 7387S]

Potato Crop Insurance Regulations

agency: Federal Crop Insurance
Corporation, USDA.
action: Final rule.

summary: The Federal Crop Insurance
Corporation (FCIC) hereby adopts, as a
final rule, an interim rule which was
published in the Federal Register on
Tuesday. October 24,1989, at 54 FR
43276. The interim rule amended the
Potato Crop Insurance Regulations (7
CFR part 422) to change the date for the
end of the insurance period for potatoes in
Delaware, Maryland, and New Jersey.
The intended effect of this rule was to
change an incorrect end of insurance
period date to reflect the farming
practices for potatoes in such states.
effective date: This rule is effective
September 4,1990.

FOR FURTHER INFORMATION CONTACT

Peter F. Cole, Secretary, Federal Crop
Insurance Corporation, U.S. Department
of Agriculture, Washington, DC 20250,
telephone (202) 447-3325.
SUPPLEMENTARY INFORMATION: This
action has been reviewed under USDA
procedures established by Departmental
Regulation 1512-1. This action does not
constitute a review as to the need,
currency, clarity, and effectiveness of
these regulations under those
procedures. The sunset review date for
these regulations remains as February 1,
1994.

David W. Gabriel, Acting Manager,
FCIC, (1) has determined that this action
is not a major rule as defined by
Executive Order 12291 because it will

Federal Register / Vol. 55, No. 171 / Tuesday, September 4, 1990 / Rules and Regulations 35889

not result in: (a) An annual effect on the
economy of $100 million or more; (b)
major increases in costs or prices for
consumers, individual industries,
federal. State, or local governments, or a
geographical region; or (c) significant
adverse effects on competition,
employment, investment, productivity,
innovation, or the ability of U.S.-based
enterprises to compete with foreign-
based enterprises in domestic or export
markets; and (2) certifies that this action
will not increase the federal paperwork
burden for individuals, small businesses,
and other persons.

This action is exempt from the
provisions of the Regulatory Flexibility
Act; therefore, no Regulatory Flexibility
Analysis was prepared.

This program is listed in the Catalog
of Federal Domestic Assistance under
No. 10.450.

This program is not subject to the
provisions of Executive Order 12372
which requires intergovernmental
consultation with State and local
officials. See the Notice related to 7 CFR
part 3015, subpart V, published at 48 FR
29115, June 24,1983.

This action is not expected to have
any significant impact on the quality of
the human environment, health, and
safety. Therefore, neither an
Environmental Assessment nor an
Environmental Impact Statement is
needed.

On Tuesday. October 24,1989, FCIC
published an interim rule in the Federal
Register at 54 FR 43276, amending the
Potato Crop Insurance Regulations (7
CFR part 422) to change the end of
insurance period for potatoes in
Delaware, Maryland, and New Jersey to
more accurately reflect the farming
practices for potatoes in such states.

Written comments were solicited for
GO days after publication in the Federal
Register, and the rule was scheduled for
review so that any amendment made
necessary by public comment could be
published in the Federal Register as
quickly as possible.

No comments were received,
therefore, the interim rule is hereby
adopted as a final rule.

List of Subjects in 7 CFR Part 422

Crop insurance; Potatoes.

Final Rule

Accordingly, the interim rule
published in the Federal Register on
Tuesday, October 24.1989, at 54 FR
43276, is hereby adopted as a final rule.

Authority: 7 U.S.C. 1506, 1516.

Done in Washington, DC, on August 27.
1990.

David W. Gabriel,

Acting Manager, Federal Crop Insurance
Corporation.

[FR Doc. 90-20675 Filed 8-31-90; 8:45 am]

BILLING CODE 3410-06-M

Agricultural Marketing Service
7 CFR Part 910
[Lemon Reg. 7331

Lemons Grown in California and
Arizona; Limitation of Handling

agency: Agricultural Marketing Service,
USDA.

action: Final rule.

summary: This regulation establishes
the quantity of Califomia-Arizona
lemons that may be shipped to domestic
markets during the period from
September 2 through September 8,1990.
Consistent with program objectives,
such action is needed to balance the
supplies of fresh lemons with the
demand for such lemons during the
period specified. This action was
recommended by the Lemon
Administrative Committee (Committee),
which is responsible for local
administration of the lemon marketing
order.

EFFECTIVE dates: Regulation 733 (7 CFR
part 910) is effective for the period from
September 2 through September 8,1990.
FOR FURTHER INFORMATION CONTACT:
Beatriz Rodriguez, Marketing Specialist,
Marketing Order Administration Branch,
Fruit and Vegetable Division.
Agricultural Marketing Service, U.S.
Department of Agriculture (Department),
Room 2524-S, P.O. Box 96450,
Washington, DC 20090-6456; telephone:
(202) 475-3861.

SUPPLEMENTARY INFORMATION: This
final rule is issued under Marketing
Order 910 (7 CFR part 910), as amended,
regulating the handling of lemons grown
in California and Arizona. This order is
effective under the Agricultural
Marketing Agreement Act of 1937, a 9
amended, hereinafter referred to as the
Act.

This final rule has been reviewed by
the Department in accordance with
Departmental Regulation 1512-1 and the
criteria contained in Executive Order
12291 and has been determined to be a
"non-major” rule.

Pursuant to requirements set forth in
the Regulatory Flexibility Act (RFA), the
Administrator of the Agricultural
Marketing Service (AMS) has
considered the economic impact of this

action on small entities as well as larger
ones.

The purpose of the RFA is to fit
regulatory actions to the scale of
business subject to such actions in order
that small businesses will not be unduly
or disproportionately burdened.
Marketing orders issued pursuant to the
Act, and rules issued thereunder, are
unique in that they are brought about
through group action of essentially small
entities acting on their own behalf.

Thus, both statutes have small entity
orientation and compatibility.

There are approximately 70 handlers
of lemons grown in California and
Arizona subject to regulation under the
lemon marketing order and
approximately 2,000 lemon producers in
the regulated area. Small agricultural
producers have been defined by the
Small Business Administration (13 CFR
121.2) as those having annual receipts of
less than $500,000, and small agricultural
service firms are defined as those whose
annual receipts are less than $3,500,000.
The majority of handlers and producers
of Califomia-Arizona lemons may be
classified as small entities.

The Califomia-Arizona lemon
industry is characterized by a large
number of growers located over a wide
area. The Committee’s estimate of 1990-
91 production is 40,834 cars (one car
equals 1,000 cartons at 38 pounds net
weight each), as compared with 37,881
cars during the 1909-90 season. The
production area is divided into three
districts which span California and
Arizona. The Committee estimates
District 1, central California, 1990-91
production at 6,495 cars compared to the
4,158 cars produced in 1909-90. In
District 2, southern California, the crop
is expected to be 25,700 cars compared
to the 24,292 cars produced last year. In
District 3, the California desert and
Arizona, the Committee estimates a
production of 9,639 cars compared to the
9,436 cars produced last year. The
National Agricultural Statistics Service
will publish on October 11,1990. an
estimate of the 1990-91 lemon crop.

The three basic outlets for Califomia-
Arizona lemons are the domestic fresh,
export, and processing markets. The
domestic (regulated) fresh market is a
preferred market for Califomia-Arizona
lemons. The Committee estimates that
about 44 percent of the 1990-91 crop of
40,834 cars will be utilized in fresh
domestic channels (17,900 cars),
compared with the 1989-90 total of
16,600 cars, about 44 percent of the total
production of 37,881 cars in 1989-90.
Fresh exports are projected at 22
percent of the total 1990-91 crop
utilization compared with 22 percent in

35890 Federal Register / Vol. 55, No. 171 / Tuesday, September 4, 1990 / Rules and Regulations

1989-90. Processed and other uses
would account for the residual 34
percent compared with 34 percent of the
1989-90 crop.

Volume regulations issued under the
authority of the Act and Marketing
Order No. 910 are intended to provide
benefits to growers and consumers.
Reduced fluctuations in supplies and
prices result from regulating shipping
levels and contribute to a more stable
market. The intent of regulation is to
achieve a more even distribution of
lemons in the market throughout the
marketing season and to avoid
unreasonable fluctuations in supplies
and prices.

Based on the Committee's marketing
policy, the crop and market information
provided by the Committee, and other
information available to the
Department, the costs of implementing
the regulations are expected to be more
than offset by the potential of
regulation.

Reporting and recordkeeping
requirements under the lemon marketing
order are required by the Committee
from handlers of lemons. However,
handlers in turn may require individual
growers to utilize certain reporting and
recordkeeping practices to enable
handlers to carry out their functions.
Costs incurred by handlers in
connection with recordkeeping and
reporting requirements may be passed
on to growers.

The Committee submitted its
marketing policy for the 1990-91 season
to the U.S. Department of Agriculture
(Department) on June 19. The marketing
policy discussed, among other things,
the potential use of volume and size
regulations for the ensuing season. The
Committee considered the use of volume
regulation for the season. This
marketing policy is available from the
Committee or Ms. Rodriguez. The
Department reviewed that policy with
respect to administrative requirements
and regulatory alternatives in order to
determine if the use of volume
regulations would be appropriate.

The Committee met publicly on
August 28.1990, in Los Angeles,
California, to consider the current and
prospective conditions of supply and
demand and unanimously recommended
that 310,000 cartons is the quantity of
lemons deemed advisable to be shipped
to fresh domestic markets during the
specified week. The marketing
information and data prov ided to the
Committee and used in its deliberations
were compiled by the Committee’s staff
or presented by Committee members at
the meeting. This information included,
but was not limited to, price data for the
previous week from Department market

news reports and other sources, the
preceding week’9 shipments and
shipments to date, crop conditions,
weather and transportation conditions,
and a reevaluation of the prior week’s
recommendation in view of the above.

The Department reviewed the
Committee’s recommendation in light of
the Committee’s projections as set forth
in its 1990-91 marketing policy. This
recommended amount is 21,000 cartons
above the estimated projections in the
revised shipping schedule.

During the week ending on August 25.
1990, shipments of lemons to fresh
domestic markets, including Canada,
totaled 313.000 cartons compared with
288,000 cartons shipped during the week
ending on August 26,1989. Export
shipments totaled 140,000 cartons
compared with 134,000 cartons shipped
during the week ending on August 26,

1989. Processing and other uses
accounted for 263,000 cartons compared
with 108,000 cartons shipped during the
week ending on August 26,1989.

Fresh domestic shipments to date for
the 1990-91 season total 1,213,000
cartons compared with 1,186,000 cartons
shipped by this time during the 1989-90
season. Export shipments total 558,000
cartons compared with 624,000 cartons
shipped by this time during 1989-90.
Processing and other use shipments total
1.027,000 cartons compared with 527.000
cartons shipped by this time during
1989-90.

For the week ending on August 25,

1990, regulated shipments of lemons to
the fresh domestic market were 313,000
cartons on an adjusted allotment of
347,000 cartons which resulted in net
undershipments of 34,000 cartons.
Regulated shipments for the current
week (August 26 through September 1.
1990] are estimated at 320,000 cartons on
an adjusted allotment of 343.000 cartons.
Thus, undershipments of 23,000 cartons
could be carried over into the week
ending on September 8,1990.

The average Lo.b. shipping point price
for the week ending on August 25,1990,
was $12.43 per carton based on a
reported sales volume of 311,000 cartons
compared with last week's average of
$11.80 per carton on a reported sales
volume of 287,000 cartons. The 1990-91
season average f.o.b. shipping point
price to date is $12.77 per carton. The
average Lo.b. shipping point price for
the week ending on August 26,1989, was
$14.40 per carton; the season average
f.o.b. shipping point price at this time
during 1989-90 was $14.10 per carton.

The Department’s Market News
Serv ice reported that, as of August 28.
demand for lemons of all sizes and
grades is moderate. The market is
“about steady’* for all grades and sizes

of lemons. At the meeting, one
Committee member commented that
movement on first and second grade
fruit, especially large-sized lemons,
increased. The member also stated that
there is some inventory build-up on
small-size lemons (200’s and smaller).
That member as well as another
member mentioned the need to maintain
an orderly market, especially in the
transitional period between District 2
and District 3 which is about to begin.
The Committee unanimously
recommended volume regulation for the
period from September 2 through
September 8,1990.

Based upon fresh utilization levels
indicated by the Committee and an
econometric model developed by the
Department, the California-Arizona
1990-91 season average fresh on-tree
price is estimated at $9.54 per carton.

116 percent of the projected season
average fresh on-tree parity equivalent
price of $8.20 per carton. The Califomia-
Arizona 1909-90 season average fresh
on-tree price is estimated at $8.53,114
percent of the projected season average
fresh on-tree parity equivalent price of
$7.47 per carton.

Limiting the quantity of lemons that
may be shipped during the period from
September 2 through September 8,1990,
would be consistent with the provisions
of the marketing order by tending to
establish and maintain, in the interest of
producers and consumers, an orderly
flow of lemons to market.

Based on considerations of supply and
market conditions, it is found that this
action will tend to effectuate the
declared policy of the Act.

Based on the above information, the
Administrator of the AMS has
determined that issuance of this rule
will not have a significant economic
impact on a substantial number of small
entities.

Pursuant to 5 U.S.C. 553, it is further
found and determined that it is
impracticable, unnecessary, and
contrary to the public interest to give
preliminary notice and engage in further
public procedure with respect to this
action and that good cause exists for not
postponing the effective date of this
action until 30 days after publication in
the Federal Register. This is because
there is insufficient time between the
date when information became
available upon which this regulation is
based and the effective date necessary
to effectuate the declared policy of the
Act.

In addition, market information
needed for the formulation of the basis
for this action was not available until
August 28,1990. and this action needs to

Federal Register / Vol. 55, No. 171 / Tuesday, September 4, 1990 / Rules and Regulations 35891

be effective for the regulatory week
which begins on September 2,1990.
Further, interested persons were given
an opportunity to submit information
and views on the regulation at an open
meeting, and handlers were apprised of
its provisions and effective time. It is
necessary, therefore, in order to
effectuate the declared purposes of the
Act, to make this regulatory provision
effective as specified.

List of Subjects in 7 CFR Part 910

Lemons, Marketing agreements, and
Reporting and recordkeeping
requirements.

For the reasons set forth in the
preamble, 7 CFR part 910 is amended as
follows:

PART 910—LEMONS GROWN IN
CALIFORNIA AND ARIZONA

1. The authority citation for 7 CFR
part 910 continues to read as follows:

Authority: Secs. 1-19, 48 Stat. 31, as
amended; 7 U.S.C. 601-874.

2. Section 910.733 is added to read a9
follows:

Note: This section will not appear in the
Code of Federal Regulations.

§ 910.733 Lemon Regulation 733.

The quantity of lemons grown in
California and Arizona which may be
handled during the period from
September 2 through September 8,1990,
is established at 310,000 cartons.

Dated: August 29.1990.

Ronald L.Cioffi,

Acting Deputy Director, Fruit and Vegetable
Division.

|FR Doc. 90-20767 Filed 8-31-90: 8:45 am]
BILLING COD€ 3410-02-M

7 CFR Parts 932 and 944
l Docket No. FV-90-193IFR]

Olives Grown In California and
Imported Olives; Interim Final Rule
Establishing Grade and Size
Requirements for Limited Use Styles
of California Processed Olives for
1990-91 Season, and Conforming
Changes in the Olive Import
Regulation

agency: Agricultural Marketing Service,
USDA.

action: Interim final rule with request
for comments.

summary: This interim final rule
establishes grade and size requirements
for California processed olives used in
the production of limited use styles of
olives such as wedges, halves, slices, or

segments and establishes similar
requirements in the olive import
regulation to bring that regulation into
conformity with the domestic
requirements. The grade and size
requirements are the same as
implemented last season. Olives used in
limited use styles are too small to be
desirable for use as whole or whole
pitted canned olives because their flesh-
to-pit ratio is too low. Flowever, they are
satisfactory for use in the production of
limited use styles. Their use in such
products over the years has helped the
California olive industry meet the
increasing market needs of the food
service industry. The requirements for
domestic olives were unanimously
recommended by the California Olive
Committee (committee), which works
with the Department in administering
the marketing order program for olives
grown in California. The establishment
of such requirements for imported olives
is required pursuant to section 8e of the
Agricultural Marketing Agreement Act
of 1937.

dates: This interim Final rule becomes
effective September 4,1990. Comments
which are received by October 4,1990
will be considered prior to issuance of a
final rule.

addresses: Written comments
concerning this rule should be submitted
in triplicate to the Docket Clerk, F&V
Division, AMS, USDA, P.O. Box 96456,
room 2525-S, Washington, DC 20090-
6456. All comments submitted will be
made available for public inspection in
the above office during regular business
hours. Comments should reference the
docket number and the date and page
number of this issue of the Federal
Register.

FOR FURTHER INFORMATION CONTACT:

Patrick Packnett, Marketing Order
Administration Branch, Fruit and
Vegetable Division, AMS, USDA, P.O.
Box 96458, room 2530-S, Washington.

DC 20090-6456; telephone (202) 47S-
3862.

SUPPLEMENTARY INFORMATION: This
interim final rule is issued under
Marketing Agreement and Order No. 932
(7 CFR part 932), as amended, regulating
the handling of olives grown in
California, hereinafter referred to as the
order. The order is effective under the
Agricultural Marketing Agreement Act
of 1937, as amended (7 U.S.C. 601-674),
hereinafter referred to as the Act.

This interim final rule has been
reviewed by the Department in
accordance with Departmental
Regulation 1512-1 and the criteria
contained in Executive Order 12291 and
has been determined to be a “non-
major” rule.

Pursuant to requirements set forth in
the Regulatory Flexibility Act (RFA), the
Administrator of the Agricultural
Marketing Service has considered the
economic impact of this action on small
entities.

The purpose of the RFA is to fit
regulatory actions to the scale of
business subject to such actions in order
that small businesses will not be unduly
or disproportionately burdened.
Marketing orders issued pursuant to the
Act, and rules issued thereunder, are
unique in that they are brought about
through group action of essentially small
entities acting on their own behalf.

Thus, both statutes have small entitiy
orientation and compatibility.

There are seven handlers of California
olives subject to regulation under the
order and approximately 1,400
producers in California. Approximately
25 importers of olives are subject to the
olive import regulation. Small
agricultural producers have been
defined by the Small Business
Administration (13 CFR 121.2) as those
having annual receipts of less than
$500,000, and small agricultural service
firms are defined as those whose annual
receipts are less than $3,500,000. Most
but not all of the olive producers and
importers may be classified as small
entities. None of the olive handlers may
be classified as small entities.

Nearly all of the olives grown in the
United States are produced in
California. The growing areas are
scattered throughout California with
most of the commercial production
coming from inland valleys. In 1989,
about 66 percent of the production came
from the San Joaquin Valley and 34
percent from the Sacramento Valley.

Olive production has fluctuated from
a low of 24,200 tons during the 1972-73
crop year to a high of 146,500 tons during
the 1982-83 crop year. The committee
indicated that 1989 production totalled
about 118,990 tons. The various varieties
of olives produced in California have
alternate bearing tendencies with high
production one year and low the next.
The industry expects the 1990-91 crop to
be about 90,000 tons.

The primary use of California olives is
for canned ripe whole and whole pitted
olives which are eaten out of hand as
hors d’oeuvres or used as an ingredient
in cooking and in salads. The canned
ripe olive market is essentially a
domestic market. Very few California
olives are exported.

This action will allow handlers to
market more olives than would be
permitted in the absence of this
relaxation in size requirements. This
additional opportunity is provided to

35892 Federal Register / VoL 55. No. 171 / Tuesday. September 4. 1990 / Rules and Regulations

maximize the use of the California olive
supply, facilitate market expansion, and
benefit both growers and handlers.

The interim rule modifies 5 932.153 of
Subpart-Rules and Regulations (7 CFR
932.108-932.161). The modification
establishes grade and size regulations
for 1990-91 crop limited use size olives.
The modification is issued pursuant to
paragraph (a)(3) of 5 932.52 of the order.
This rule also makes necessary
conforming changes in the olive import
regulation fOlive Regulation 1; 7 CFR
944.401). The import regulation is issued
pursuant to section 8e of the Act.

Section 8e provides that whenever
grade, size, quality, or maturity
provisions are in effect for specified
commodities, including olives, under a
marketing order, the same or
comparable requirements must be
imposed on the imports.

Paragraph (a)(3) of § 932.52 of the
marketing order provides that processed
olives smaller than the sizes prescribed
for whole and whole pitted styles may
be used for limited uses if recommended
by the committee and approved by the
Secretary. The sizes are specified in
terms of minimum weights for individual
olives in various size categories. The
section further provides for the
establishment of size tolerances.

To allow handlers to take advantage
of the strong market for halved,
segmented, sliced, and chopped canned
ripe olives, the committee recommended
that grade and size requirements again
be established for limited use olives for
the 1990-91 crop year (August 1,1990
through July 31,1991). The grade
requirements are the same as those
applied during the 1990-91 crop year, as
are the sizes and the size tolerances.
Permitting handlers to use small olives
in the production of limited use style
canned olives will have a positive
impact on industry returns. In the
absence of this action, the undersized
fruit would have to be used for non¬
canning uses, like oil for which returns
are lower. Except for the changes
necessary in the effective date, the
provisions, hereinafter set forth in
§ 932.153, are the same as those
established last season.

Paragraph (b)[12) of § 944.401 of the
olive import regulation allows imported
bulk olives which do not meet the
minimum size requirements for canned
whole and whole pitted ripe olives to be
used for limited use styles if they meet
specified size requirements.
Continuation of the limited use
authorization for California olives by
this interim rule requires that similar
changes be made in paragraph (b)(12) of
§ 944.401 to keep the import regulation
in conformity with the applicable

domestic requirements. These
conforming changes will benefit
importers because they will be able to
import small-sized olives for limited use
during the 1990-91 season which ends
July 31.1991.

Based on available information, the
Administrator of the AMS has
determined that this action will not have
a significant economic impact on a
substantial number of small entities
because it provides handlers and
importers more marketing flexibility.

After consideration of all relevant
matter presented, the information and
recommendations submitted by the
committed, and other available
information, it is found that authorizing
the use of smaller olives in the
production of limited use styles will tend
to effectuate the declared policy of the
Act.

Pursuant to 5 U.S.C. 553. it is found
and determined that upon good cause it
is impracticable, unnecessary, and
contrary to the public interest to give
preliminary notice prior to putting this
rule into effect, and that good cause
exists for not postponing the effective
date of this action until 30 days after
publication in the Federal Register
because: (1) Compliance with this action
will require no special preparation by
handlers and importers; (2) it is
important that these requirements apply
to as much of the 1990-91 marketing
season as possible; (3) the olive import
requirements are mandatory under
section 8e of the Act; (4) this action
relieves restrictions on handlers and
importers; and (5) the rule provides a 30-
day comment period, and any comments
received will be considered prior to
finalization of this interim final rule.

List of Subjects

7 CFR Pari 932

Marketing agreements. Olives.
Reporting and recordkeeping
requirements.

7 CFR Part 944

Avocados, Food grades and
standards, Grapefruit, Grapes, Imports.
Limes. Olives and oranges.

For the reasons set forth in the
preamble, 7 CFR parts 932 and 944 are
amended as follows.

Note: These sections will appear in the
Code of Federal Regulations.

1. The authority citations for 7 CFR
parts 932 and 944 continue to read as
follows:

Authority: Secs. 1-19, 48 Stat. 31. as
amended; 7 U.S.C. 601-674.

PART 932—OLIVES GROWN IN
CALIFORNIA

2. Section 932.153 is revised to read as
follows;

§ 932.153 Establishment of grade and size
requirements for processed 1990-91 crop
year olives for limited use.

(a) Grade . On and after September 4,
1990. any handler may use processed
olives of the respective variety group in
the production of limited use styles of
canned ripe olives if such olives were
processed after July 31,1990, and meet
the grade requirements specified in
paragraph (a)(1) of §932.52 as modified
by § 932.149.

(b) Sizes . On and after September 4.
1990, any handler may use processed
olives in the production of limited use
styles of canned ripe olives if such
olives were harvested during the period
August 1, 1990, through July 31, 1991, and
meet the following requirements:

(1) The processed olives shall be
identified and kept separate and apart
from any olives harvested before August
1,1990, or after July 31,1991.

(2) Variety Group 1 olives, except the
Ascolano, Barouni, or St. Agostino
varieties, shall be of a size which
individually weigh 1/90 pound:

Provided, That no more than 35 percent
of the olives in any lot or sublot may be
smaller than 1/90 pound.

(3) Variety Group 1 olives of the
Ascolano, Barouni, or St. Agostino
varieties shall be of a size which
individually weigh 1/140 pound:
Provided, That no more than 35 percent
of the olives in any lot or sublot may be
smaller than 1/140 pound.

(4) Variety Group 2 olives, except the
Obliza variety, shall be of a size which
individually weigh 1/180 pound:
Provided, That no more than 35 percent
of the olives in any lot or sublot may be
smaller than 1/180 pound.

(5) Variety Group 2 olives of the
Obliza variety shall be of a size which
individually weigh 1/140 pound:
Provided. That no more than 35 percent
of the olives in any lot or sublot may be
smaller than 1/140 pound.

PART 944—FRUITS; IMPORT
REGULATIONS

5. Section 944.401 is amended by
revising the introductory text of
paragraph (b)(12) to read as follows:

§944.401 Olive Regulation 1.

• « • * *

(b) * * •

(12) Imported bulk olives when usea
in the production of canned ripe olives
must be inspected and certified as

Federal Register / Vol. 55, No. 171 / Tuesday, September 4, 1990 / Rules and Regulations 35893

prescribed in this section. Imported bulk
olives which do not meet the applicable
minimum size requirements specified in
paragraphs (b)(2) through (b)(ll) of this
section may be imported during the
period September 4.1990, through July
31,1991, for limited use, but any such
olives so used shall not be smaller than
the following applicable minimum size:

* « • « •

Dated: August 29,1990.

Robert C. Keeney,

Deputy Director, Fruit and Vegetable
Division.

[FR Doc. 90-20742 Filed 8-31-90; 8:45 am]

BILLING CODE 3410-02-M

7 CFR Part 967
(FV-90-178FRJ

Handling Regulation for Celery Grown
in Florida

agency: Agricultural Marketing Service,
USDA.

action: Final rule.

SUMMARY: This action establishes the
quantity of Florida celery which
handlers may ship to fresh markets
during the 1990-91 marketing season at
6,789,738 crates or 100 percent of
producers' base quantities. This final
rule is intended to lend stability to the
industry and. thus, help to provide
consumers with an adequate supply of
the product As in past marketing
seasons, the limitation on the quantity of
Florida celery handled for fresh
shipment is not expected to restrict the
quantity of Florida celery actually
produced or shipped to fresh markets,
since production and shipments are
anticipated to be less than the allotment.
This action was recommended by the
Florida Celery Committee (Committee),
the agency responsible for local
administration of the order.

EFFECTIVE dates: September 4,1990.

FOR FURTHER INFORMATION CONTACT:
Sheila Young, Marketing Specialist.
Marketing Order Administration Branch,
Fruit and Vegetable Division. AMS.
USDA. Room 2525-S, P.O. Box 96456,
Washington. DC 20090-6456; telephone:
(202) 475-5992.

SUPPLEMENTARY INFORMATION: This
final rule is issued under Marketing
Agreement and Order No. 967 (7 CFR
part 967), both as amended, regulating
the handling of celery grown in Florida.
The order is effective under the
Agricultural Marketing Agreement Act
of 1937, as amended (7 U.S.C. 601-674),
hereinafter referred to as the Act.

This final rule has been reviewed by
the U.S. Department of Agriculture in

accordance with Departmental
Regulation No. 1512-1 and the criteria
contained in Executive Order 12291 and
has been determined to be a "non¬
major" rule.

Pursuant to requirements set forth in
the Regulatory Flexibility Act (RFA), the
Administrator of the Agricultural
Marketing Service (AMS) has
considered the economic impact of this
final rule on small entities.

The purpose of the RFA is to fit
regulatory actions to the scale of
business subject to such actions in order
that small businesses will not be unduly
or disproportionately burdened.
Marketing orders issued pursuant to the
Act. and rules issued thereunder, are
unique in that they are brought about
through group action of essentially small
entities acting on their own behalf.

Thus, both statutes have small entity
orientation and compatibility.

There are an estimated 7 handlers of
celery grown in Florida subject to
regulation under the celery marketing
order, and approximately 13 producers
of celery in the production area. Small
agricultural producers have been
defined by the Small Business
Administration (13 CFR 121.2) as those
having annual receipts of less than
$500,000, and small agricultural service
firms are defined as those whose annual
receipts are less than $3,500,000. The
majority of celery handlers and
producers may be classified as small
entities.

This final rule is based upon the
recommendation and information
submitted by the Committee and upon
other available information. The
Committee met on June 12,1990, and
recommended a marketable quantity of
6,789,738 crates of fresh celery for the
1990-91 marketing season beginning
August 1,1990. Additionally, a uniform
percentage of 100 percent was
recommended which allows each
producer registered pursuant to
5 967.37(f) of the order to market 100
percent of such producer's base
quantity. These recommendations were
based on an appraisal of expected 1990-
91 supplies and prospective demand.

As required by § 967.37(d)(1) of the
order, a reserve of 8 percent (407,384
crates) of the 1989-90 total base
quantities is authorized for new
producers and increases for existing
producers.

The final rule will limit the quantity of
Florida celery which handlers may
purchase from producers and ship to
fresh markets during the 1990-91
marketing season to 6,789.738 crates.
This marketable quantity is identical to
the 1989-90 marketable quantity and is
about 17 percent more than the average

number of crates marketed fresh during
the 1984-85 through 1988-89 seasons. It
is expected that the 6.789,738 crate
marketable quantity will be above
actual shipments for the 1990-91 season.
Thus, the 6,789.738 crate marketable
quantity is not expected to restrict the
amount of Florida celery which growers
produce or the amount of celery which
handlers ship. For these reasons, this
final action shall lend stability to the
industry and. thus, help to provide
consumers with an adequate supply of
the product.

Based on available information, the
Administrator of the AMS has
determined that issuance of this final
rule will not have a significant economic
impact on a substantial number or small
entities.

This action was proposed in the July
23,1990, issue of the Federal Register (55
FR 29852). Comments on the proposed
rule were invited from interested
persons until August 2,1990. No
comments were received.

After consideration of the information
and recommendations submitted by the
Committee and other available
information, it is found that this final
rule will tend to effectuate the declared
policy of the Act.

Pursuant to 5 U.S.C. 553, it is hereby
found and determined that good cause
exists for not postponing the effective
date of this action until 30 days after
publication in the Federal Register
because: (1) The 1996-91 crop year for
Florida celery began on August 1.1990;
and (2) handlers are aware of this
action, which was recommended by the
Committee at a public meeting, and
need no additional time to comply with
the requirements.

List of Subjects in 7 CFR Part 967

Celery, Florida, Marketing
agreements. Reporting and
recordkeeping requirements.

For the reasons set forth in the
preamble, 7 CFR part 967 is amended as
follows:

PART 967—CELERY GROWN IN
FLORIDA

1. The authority citation for 7 CFR
part 967 continues to read as follows:

Note: This section will not appear in the
annual Code of Federal Regulations.

Authority: Secs. 1-19, 48 Stat 31. as

amended: 7 U.S.C. 601-674.

Subpart—Administrative Rules and
Regulations

2. A new § 967.326 is added to read as
follows:

35894 Federal Register / Vol. 55, No. 171 / Tuesday, September 4, 1990 / Rules and Regulations

§ 967.326 Handling regulation, marketable
quantity, and uniform percentage for the
1990-91 season beginning August 1,1990.

(a) The marketable quantity
established under § 967.36(a) is 6,789,738
crates of celery.

(b) As provided in § 967.38(a), the
uniform percentage shall be 100 percent.

(c) Pursuant to § 967.36(b), no handler
shall handle any harvested celery unless
it is within the marketable allotment of a
producer who has a base quantity and
such producer authorizes the first
handler thereof to handle it.

(d) As required by § 967.37(d)(1), a
reserve of six percent of the total base
quantities is hereby authorized for: (1)
New producers and (2) increases for
existing base quantity holders.

(e) Terms used herein shall have the
same meaning as when used in the said
marketing agreement and order.

Dated: August 29.1990.

Robert C. Keeney,

Acting Director. Fruit and Vegetable Division .
(FR Doc. 90-20741 Filed 3-31-90; 8:45 am)
BILLING CODE 3410-02-M

7 CFR Part 1076
IDA-90-026)

Milk in the Eastern South Dakota
Marketing Area; Order Terminating
Certain Provisions of the Order

AGENCY: Agricultural Marketing Service,
USDA.

action: Termination of rules.

summary: This action terminates certain
provisions of the Eastern South Dakota
Federal milk order. The provisions relate
to the limits on the amount of milk not
needed for fluid (bottling) use that may
be moved directly from farms to nonpool
manufacturing plants and still be priced
under the order. Suspension of the
provisions, during August 1990 through
February 1991, was requested by a
cooperative association representing
most of the producers supplying the
market to prevent uneconomic
movements of milk. Since these
provisions have been suspended for the
last eight years, comments were
requested on whether the provisions
should be terminated. In view of this
history, the cooperative association that
proposed the suspension action
supported a termination of the
provisions. No opposing views were
received.

EFFECTIVE DATE: September 4.1990.

FOR FURTHER INFORMATION CONTACT:

John F. Borovies, Marketing Specialist,
USDA/AMS/Dairy Division. Order
Formulation Branch, Room 2968, South

Building, P.O. Box 96456, Washington.

DC 20090-6456, (202) 447-2089.
SUPPLEMENTARY INFORMATION: Prior
document in this proceeding: Notice of
Proposed Suspension or Termination:
Issued July 17,1990: published July 23,
1990 (55 FR 29854).

The Regulatory Flexibility Act (5
U.S.C. 601-612) requires the Agency to
examine the impact of a rule on small
entities. Pursuant to 5 U.S.C. 605(b), the
Administrator of the Agricultural
Marketing Service has certified that this
action will not have a significant
economic impact on a substantial
number of small entities. Such action
lessens the regulatory impact of the
order on certain milk handlers and tends
to ensure that dairy farmers will
continue to have their milk priced under
the order and thereby receive the
benefits that accrue from such pricing.

This final rule has been reviewed by
the Department in accordance with
Departmental Regulation 1512-1 and the
criteria contained in Executive Order
12291 and has been determined to be a
“non-major” rule.

This order of termination is issued
pursuant to the provisions of the
Agricultural Marketing Agreement Act
of 1937, as amended (7 U.S.C. 601-674),
and of the order regulating the handling
of milk in the Eastern South Dakota
marketing area.

Notice of proposed rulemaking was
published in the Federal Register on July
23,1990 (55 FR 29854) concerning a
proposed suspension or termination of
certain provisions of the order.

Interested parties were afforded the
opportunity to file written data, views,
and arguments thereon. No comments
opposing the actions were received.

After consideration of all relevant
material, including the proposal in the
notice, the comments received, and
other available information, it is hereby
found and determined that the following
provisions of the order do not tend to
effectuate the declared policy of the Act.

In § 1076.13, paragraphs (c) (2), (3) and

(4).

Statement of Consideration

Land O'Lakes, Inc. (LOL), an
association of producers that supplies
most of the market’s fluid milk needs
and handles most of the market's
reserve milk supplies, requested a
suspension of certain provisions of the
order. The requested suspension would
remove for August 1990 through
February 1991 the limit on the amount of
producer milk that a cooperative
association or other handlers may divert
from pool plants to nonpool plants. A
similar suspension has been in effect
during these months since 1982.

The order now provides that a
cooperative association may divert up to
35 percent of its total member milk
received at all pool plants or diverted
therefrom during the months of August
through February. Similarly, the
operator of a pool plant may divert up to
35 percent of its receipts of producer
milk (for which the operator of such
plant is the handler during the month)
during the months of August through
February.

LOL indicates that operation of the 35-
percent diversion limit during August
through February would mean that at
least 65 percent of its milk would have
to be delivered to pool plants. LOL
estimates, moreover, that only
approximately 44 percent of its milk will
be needed at distributing plants during
August 1990-February 1991. The balance
would have to be delivered to pool
plants, unloaded, reloaded and then
shipped to other plants merely to qualify
the milk for pooling. The additional
handling and hauling costs would be
incurred by LOL with no offsetting
benefits to other market participants,
according to LOL. In addition, the
cooperative states, additional pumpings
of milk can be expected to cause
deterioration in its quality.

LOL states that even in the absence of
diversion limitations, the cooperative
must continue to deliver at least 35
percent of its producer receipts to pool
distributing plants under other pooling
standards in order to pool all milk. The
cooperative affirms its commitment to
supplying the total needs of Eastern
South Dakota distributing plants.

These provisions of the order that
limit diversion to nonpool plants have
been suspended during the August-
February period during each of the last
eight years. In view of this history,
interested parties were invited to submit
comments on whether the provisions
should be terminated rather than
suspended for the August 1990-February
1991 period.

In response to the notice of proposed
actions, LOL supported a termination of
the provisions and no views opposing
the action were received. As a result of
the eight-year history of the suspension
of these provisions, it is determined that
the provisions should be terminated.

It is hereby found and determined that
thirty days’ notice of the effective date
hereof are impractical, unnecessary and
contrary to the public interest in that:

(a) The termination is necessary to
reflect current marketing conditions and
to assure orderly marketing conditions
in.the marketing area in that dairy
farmers who regularly supply the market
will continue to have their milk priced

Federal Register / Vol. 55, No. 171 / Tuesday, September 4, 1990 / Rules and Regulations 35895

under the other without the need for
handlers to engage in unnecessary and
expensive hauling and handling

practices:

(b) This termination does not require
of persons affected substantial or
extensive preparation prior to the
effective date; and

(c) Notice of proposed rulemaking was
given interested parties and they were
afforded opportunity to file written data,
views, or arguments concerning this
termination. One response in support of
the proposed action and no comments in
opposition were received.

Therefore, good cause exists for
making this order effective upon
publication in the Federal Register.

List of Subjects in 7 CFR Part 1076

Milk marketing orders.

It is therefore ordered. That the
aforesaid provisions in § 1076.13 the
Eastern South Dakota order are hereby
terminated.

PART 1076—MILK IN THE EASTERN
SOUTH DAKOTA MARKETING AREA

1. The authority citation for 7 CFR
part 1076 continues to read as follows:

Authority: Secs. 1-19. 48 Stat. 31. as
amended; 7 U.SXL 601-674.

§1076.13 [Amended]

2. In § 1076.13, paragraphs (c) (2), (3)
and (4) are removed and reserved.

Signed at Washington. DC. on August 27.
199a

John E. Frydenlund,

Deputy Assistant Secretary . Marketing and
Inspection Services.

[FR Doc. 90-20623 Filed 8-31-90; 8:45 am]
BILLING CODE 3410-02*41

Farmers Home Administration

7 CFR Parts 1922,1930, and 1944

Rural Rental Housing Loan Policies,
Procedures, and Authorizations

agency: Farmers Home Administration.
USDA.

action: Final rule.

summary: The Farmers Home
Administration (FmHA) amends the
Agency's loan policies and procedures
governing appraisal of rental housing.
This change will authorize and establish
a policy to use contract appraisers in the
rural rental housing loan programs. The
intended effect of this action is to
increase objectivity in Agency loan
making decisions.

EFFECTIVE DATE: September 4.1990.

FOR FURTHER INFORMATION CONTACT.

Steven D. Jorgensen, Senior Loan
Officer, Multi-Family Housing Branch.
Loan Processing Division. Fanners
Home Administration, U.S. Department
of Agriculture, room 5347, South
Agriculture Building. 14th and
Independence Avenue SW..

Washington, DC 20250; telephone (202)
382-1608.

SUPPLEMENTARY INFORMATION: This
action has been reviewed under USDA
procedures established in Departmental
Regulation 1512-1, which implements
Executive Order 12291, and has been
determined to be exempt from those
requirements because it involves only
interna] agency management. It is the
policy of this Department to publish for
comment rules relating to public
property, loans, grants, benefits, or
contracts, notwithstanding the
exemption in 5 U.S.C. 553 with respect
to such rules. This action, however, is
not published for proposed rule making
since it involves only internal agency
management making publication for
comment unnecessary.

Intergovernmental Review

This program/activity is listed in the
Catalog of Federal Domestic Assistance
under No. 10.415, Rural Rental Housing
Loans and is subject to the provisions of
Executive Order 12371 which requires
intergovernmental consultation with
State and local officials. 7 CFR 3015,
subpart V, 48 FR 29112. June 24.1983; 49
FR 22675, May 31,1984; 50 FR 14088,
April 10.1985.

Environmental Impact Statement

This document has been reviewed in
accordance with 7 CFR part 1940,
subpart G, Environmental Program. It is
the determination of FmHA that this
action does not constitute a major
Federal action significantly affecting the
quality of the human environment, and
in accordance with the National
Environmental Policy Act of 1909, Public
Law 91-190, an Environmental Impact
Statement is not required.

List of Subjects

7 CFR Part 1922

Rural housing, Loan programs—
Housing and community development,
Low and moderate income housing.

7 CFR Part 1930

Accounting, Administrative practice
and procedure, Grant programs—
Housing and community development.
Loan programs—Housing and
community development, Low and
moderate income housing—Rental.
Reporting requirements.

7 CFR Part 1944

Administrative practice and
procedure. Aged, Handicapped, Loan
programs—Housing and community
development. Low and moderate income
housing—Rental, Mobile homes.
Mortgages. Nonprofit organizations,

Rent subsidies. Therefore. FmHA
amends chapter XVIII, title 7, Code of
Federal Regulations as follows:

PART 1922—APPRAISAL

1. The authority citation for part 1922
continues to read as follows:

Authority: 42 U^.C. 1480; 5 U.S.C. 301; 7
CFR 2.23; 7 CFR 2.70

Subpart C—Appraisal of Single Family
Residential Property

2. The second sentence of

§ 1922.104{a)(12j is amended by
changing the reference from “Exhibit A"
to “Exhibit D".

PART 1930—GENERAL

3. The authority citation for part 1930
continues to read as follows:

Authority: 42 (J.S.C. 1480; 5 U.3.C. 301; 7
CFR 2.23; 7 CFR 2.70.

\

Subpart C—Management and
Supervision of Multiple Family Housing
Borrowers and Grant Recipients

4. Exhibit D paragraph VI A1 is
amended by changing the reference from
“Exhibit A" to “Exhibit D".

5. Exhibit D-l, paragraph D. 1. is
amended by changing the reference from
“Exhibit A“ to “Exhibit D".

PART 1944—HOUSING

6. The authority citation for part 1944
continues to read as follows:

Authority: 42 US.G 1489; 5 U.S.G 301; 7
CFR 2.23; 7 CFR 2.70.

Subpart E—Rural Rental Housing Loan
Policies, Procedures, and
Authorizations

§ 1944.222 [Amended)

7. The third sentence of § 1944.222(a)
is amended by changing the phrase “two
or less" to read “less than four (4)", and
the fourth sentence of § 1944.222 is
amended by changing the phrase “more
than two" to read "four (4) or more".

Dated: July 25.1990.

La Verne Ausmao.

Administrator. Farmers Home
Administration.

(FR Doc. 90-20721 Filed 8-31-00; 8:45 am]

BILLING COOC 3410-07-S

35896 Federal Register / Vol. 55. No. 171 / Tuesday, September 4, 1990 / Rules and Regulations

DEPARTMENT OF COMMERCE

Bureau of Export Administration

15 CFR Part 775

[Docket No. 90G801-0201]

Establishment of Import Certificate/
Delivery Verification Procedure for
Sweden

agency: Bureau of Export
Administration, Commerce.
action: Final rule.

summary: The Bureau of Export
Administration requires a foreign
importer to file an Import Certificate (IC)
in support of individual validated
license applications to export certain
commodities controlled for national
security reasons to specified
destinations. The commodities are
identified by the code letter "A"
following the Export Control Commodity
Number on the Commodity Control List,
which identifies those items subject to
Department of Commerce export
controls. By issuing an 1C, the
government of the importing country
undertakes to exercise legal control over
the disposal of those commodities
covered by the IC.

The Bureau of Export Administration
also requires a Delivery Verification
Certificate (DV) on a selective basis, as
described in 15 CFR 775.3(i). By issuing a
DV, the government of a country to
which an export has been made
confirms that exported commodities
have either entered the export
jurisdiction of that country or are
otherwise accounted for by the importer.

New documentation practices adopted
by Sweden warrant inclusion of that
country in the IC/DV procedure. This
rule amends the Export Administration
Regulations by adding Sweden to the
list of countries that issue Import
Certificates and by adding the names
and addresses of the Swedish
authorities to the list of foreign offices
lhat administer the IC/DV systems.

In the past, BXA has required letters
of assurance on an ad hoc basis from
Swedish customers importing goods for
resale. This new IC/DV procedure
replaces the letter of assurance
requirement.

EFFECTIVE dates: This rule is effective
September 4, 1990. In lieu of the 45 day
grace period provided in 15 CFR
775.9(b)(2), the Swedish Import
Certificate must be submitted with
export license applications as of March
14,1990. In the interim, applications will
be accepted if supported by either a
Form BXA--629P (Statement By Ultimate

Consignee and Purchaser) or the
Swedish IC.

FOR FURTHER INFORMATION CONTACT:

Patricia Muldonian, Office of
Technology and Policy Analysis, Bureau
of Export Administration, Telephone:
(202) 377-2440.

SUPPLEMENTARY INFORMATION:

Rulemaking Requirements

1. This rule is consistent with
Executive Orders 12291 and 12661.

2. This rule eliminates a collection of
information subject to the Paperwork
Reduction Act of 1900 (44 U.S.C. 3501 et
seq.]. This collection had been approved
by the Office of Management and
Budget under control number 0694-0062.
As a result of this rule, there will be an
increase in the number of Delivery
Verification Certificates, Form BXA-
647P, approved by OMB under control
number 0694-0018 and a decrease of
Statements by Ultimate Consignee and
Purchaser, approved under OMB control
number 0694-0021).

3. This rule does not contain policies
with Federalism implications sufficient
to warrant preparation of a Federalism
assessment under Executive Order
12612.

4. Because a notice of proposed
rulemaking and an opportunity for
public comment are not required to be
given for this rule by section 553 of the
Administrative Procedure Act (5 U.S.C.
553) or by any other law, under sections
603(a) and 604(a) of the Regulatory
Flexibility Act (5 U.S.C. 603(a) and
604(a)) no initial or final Regulatory
Flexibility Analysis has to be or will be
prepared.

5. Section 13(a) of the Export
Administration Act of 1979, as amended
(EAA) (50 U.S.C. app. 2412(a)), exempts
this rule from all requirements of section
553 of the Administrative Procedure Act
(APA) (5 U.S.C. 553), including those
requiring publication of a notice of
proposed rulemaking, an opportunity for
public comment, and a delay in effective
date. This rule is also exempt from these
APA requirements because it involves a
foreign and military affairs function of
the United States. Section 13(b) of the
EAA does not require this rule be
published in proposed form because this
rule does not impose a new control.
Further, no other law requires that a
notice of proposed rulemaking and an
opportunity for public comment be given
for this rule.

Therefore, this regulation is issued in
final form. Although there is no formal
comment period, public comments on
this regulation are welcome on a
continuing basis. Comments should be
submitted to Patricia Muldonian, Office

of Technology and Policy Analysis.
Bureau of Export Administration,
Department of Commerce, P.O. Box 273.
Washington, DC 20044.

List of Subjects in 15 CFR Part 775

Exports, Reporting and recordkeeping
requirements.

Accordingly, part 775 of the Export
Administration Regulations is amended
as follows:

PART 775—[AMENDED]

1. The authority citation for 15 CFR
part 775 continues to read as follows:

Authority: Pub. L 96-72. 93 Stat. 503 (50
U.S.C. app. 2401 et seq.], as amended by Pub.
L 97-145 of December 29,1931, Pub. L 99-64
of July 12.1985 and Pub. L 100-418 of August
23,1988: E.0.12525 of July 12,1985 (50 FR
28757, July 16,1985): Pub. L. 95-223 of
December 28.1977 (50 U.S.C. 1701 et seq.];
E.0.12532 of September 9,1985 (50 FR 36861.
September 10,1985) as affected by notice of
September 4,1906 (51 FR 31925, September 8,
1986): Pub. L 99-440 of October 2,1986 (22
U.S.C. 5001 et seq.]; and E.0.12571 of
October 27,1986 (51 FR 39505, October 29.
1986).

§775.1 [Amended)

2. The table in § 775.1 is amended by
adding “Sweden” before the entry
"Turkey” in the column title “and the
country of destination is”.

§775.3 (Amended 1

3. The list of countries in § 775.3(b)(3)
is amended by adding "Sweden” before
the entry “Turkey”.

4. Supplement No. 1 to part 775 is
amended by adding a new entry for
"Sweden” immediately before the entry
for "Switzerland”, as follows:

Supplement No. 1 to Part 775 Authorities
Administering Lmport Certificates/
Delivery Verification Systems in Foreign
Countries 1

* « « • •

1 Facsimiles of Import Certificates and Delivery
Verifications issued by each of these countries may
be inspected at the Bureau of Export Administration
Western Regional Office, 3300 Irvine Avenue, Suite
345, Newport Beach. California 92660-3198 or at any
U.S. Department of Commerce District Office (see
listing on page ii under Commerce Office
Addresses) or at the Office of Export Licensing.
Room 1099D. U.S. Department of Commerce. 14th
Street and Pennsylvania Avenue, NW.. Washington.
DC 20230.

Federal Register / Vol. 55, No. 171 / Tuesday. September 4, 1990 / Rules and Regulations 35897

Country

IC/DV authorities

System
adminis¬
tered 2

Sweden.

The Association of Swedish
Chambers, of Commerce
and Industry, P.O. Box
16050, S-103 22, Stock-
holm Office: Vastra Trad-
gardsgatah 9.

IC/DV.

* 1C—Import Certificate and/or DV—Delivery Veri¬
fication.

Doted: August 28.1990.

Michael P. Galvin,

Assistant Secretary for Export
A dministration.

[FR Doc. 90-20644 Filed 8-31-90: 8:45 am)

BILLING CODE 3510-OT-M

COMMODITY FUTURES TRADING
COMMISSION

17CFR Part 140

Delegation of Authority To Determine
To Publish Exchange Rule
Amendments

agency: Commodity Futures Trading

Commission.

action: Final rule.

summary: The Commission is amending
part 140 of its rules by adding a
provision delegating to the Director of
the Division of Economic Analysis, and
to the Director of the Division of Trading
and Markets, with the concurrence of
the General Counsel, authority to
publish in the Federal Register for public
comment proposed exchange rule
amendments when publication of the
proposed rule amendment is in the
public interest and will assist the
Commission in considering the views of
interested persons. The Commission’s
action relates solely to agency
organization, procedure and practice.
EFFECTIVE DATE: September 4.1990.

FOR FURTHER INFORMATION CONTACT:
John C. Lawton, Associate Director,
Division of Trading and Markets,
Commodity Futures Trading
Commission, 2033 K Street, NW„
Washington, DC 20581. Telephone (202)
254-8955.

SUPPLEMENTARY INFORMATION: The

Commission publishes notice of all
exchange rule amendments of major
economic significance pursuant to the
provisions of section 5a(12) of the
Commodity Exchange Act. Since
November 1985, authority to determine
to publish such amendments has been
delegated to the Director of the Division
of Economic Analysis. 17 CFR
140.96(1989). The Commission has also
published, on occasion, other proposed

exchange rule amendments when
publication of the proposed rule
amendment was in the public interest
and would assist the Commission in
considering the views of interested
persons.

To streamline internal procedures, the
Commission is amending part 140 of its
rules by amending $ 140.96. New
paragraph (b) delegates to the Director
of the Division of Economic Analysis, or
the Director’s designee, and to the
Director of the Division of Trading and
Markets, or the Director’s designee, with
the concurrence of the General Counsel,
or the General Counsel's designee, the
authority to decide to publish, and to
publish, proposed exchange rule
amendments in the Federal Register
when publication of the proposed rule
amendment would be in the public
interest and would assist the
Commission in considering the views of
interested persons.

Paragraphs (b) and (c) of S 140.96 are
redesignated as paragraphs (c) and (d).
New paragraph (c) has been revised to
provide that the Director of the Division
of Economic Analysis or the Director of
the Division of Trading and Markets
may submit any matter which has been
delegated to such Director under
paragraphs (a) or (b) of this section to
the Commission for its consideration.
New paragraph (d) has been revised to
provide that nothing in the section may
prohibit the Commission from exercising
the authority delegated to the Director of
the Division of Economic Analysis and
to the Director of the Division of Trading
and Markets under paragraphs (a) and
(b) of this section. The Commission
believes that this delegation of authority
will further its goal of streamlining
exchange rule review procedures.

Regulatory Flexibility Act

The Regulatory Flexibility Act, 5
U.S.C. 601 et seq., requires agencies to
consider the impact of proposed rules on
small entities. It is not anticipated that
these new regulations, which deal solely
with internal rules governing
Commodity Futures Trading
Commission procedures, will impose
any new burden on small entities.
Accordingly, the Chairman, on behalf of
the Commission, hereby certifies
pursuant to 5 U.S.C. 605(b) that the rule
promulgated herein will not have a
significant economic impact on a
substantial number of small entities.

Paperwork Reduction Act

The rule adopted herein does not
contain a collection of information
requirement, nor an “information
collection request” within the meaning
of 44 U.S.C. 3502(4), and relates solely to

CFTC management and personnel.
Therefore, the Commission has
determined that the provisions of the
Paperwork Reduction Act do not apply
to this rule.

Waiver of Public Notice and Comment

The following regulations shall be
effective immediately. The Commission
finds that the amendments relate solely
to agency organization, practice and
procedure and that the public
procedures and publication prior to the
effective date of the amendments, in
accordance with the Administrative
Procedure Act. as codified. 5 U.S.C. 553,
are not required.

List of Subjects in 17 CFR Part 140

Authority delegations (Government
agencies), Delegation, Exchange rule
amendments. Organization and
functions (Government agencies).

In consideration of the foregoing, and
pursuant to the authority contained in
the Commodity Exchange Act, and in
particular, sections 2(a)(ll) and 5a(12) of
the Commodity Exchange Act, 7 U.S.C.
4a(j) and 7a(12), the Commission hereby
amends Chapter I of title 17 of the Code
of Federal Regulation as follows:

PART 140—ORGANIZATION,
FUNCTIONS, AND PROCEDURES OF
THE COMMISSION

1. The authority citation for part 140,
continues to read as follows:

Authority: 7 U.S.C. 4a(j), 7. 7a(12) and 8.

2. In S 140.96, paragraphs (b) and (c)
are redesignated as paragraphs (c) and
(d) and revised, and new paragraph (b)
is added to read as follows:

§ 140.96 Delegation of authority to publish
In the Federal Register.

« • * * •

(b) The Commodity Futures Trading
Commission hereby delgates, until such
time as the Commission orders
otherwise, to the Director of the Division
of Economic Analysis or the Director’s
designee, and to the Director of the
Division of Trading and Markets or the
Director's designee, with the
concurrence of the General Counsel or
the General Counsel's designee, the
authority to determine to publish, and to
publish, in the Federal Register, requests
for public comment on proposed
exchange rule amendments when
publication of the proposed rule
amendment is in the public interest and
will assist the Commission in
considering the views of interested
persons.

(c) The Director of the Division of
Economic Analysis or the Director of the

35S93 Federal Register / Vol, 55, No> 171 / Tuesday, September 4, 1990 / Rules and Regulations

Division of Training and Markets may
submit any matter which has been
delegated to such Director under
paragraphs (a) op (b) of this section to
the Commission for its consideration,
(d) Nothing in this section may
prohibit the Commission, at its election,
from exercising the authority delegated
to the Director of the Division of
Economic Analysis and to the Director
of the Division of Trading and Markets
under paragraphs (a) and (b) of this
section.

Issued ttt Washington. DC. on August 28,
1990 by the Gommssion.

Jean A. Webb.

Secretory of the Commission.

|FR Doc. 90-20708Fifed B-31-9G;8:45 »m|

BILLING COOC fittl-at-M

INTERNATIONAL BOUNDARY AND
WATER COMMISSION

22 CFR Part 1102

United States end Mexico, United
States Section, Freedom of
Information Act Uniform Fee Schedule
and Administrative Guidalfnes

AGENCY: United States Section,
International Boundary and Water
Commission.
action: Final rule.

SUMMARY! This final rule revises the
United States Section, International
Boundary' and Water Commission
(IBWC) regulations to implement the
provisions of the Freedom of
Information Reform Act of 1938. This
legislation amended the FOIA to provide
broader exemption protection for law
enforcement information and modified
the Act r 8 fee and fee waiver provisions.
IBWC*8 regulations are aTso revised to
conform with the Office of Management
and Budget's final fee schedule
guidelines published in the Federal
Register on March 27,1967 (52 FR
10012), and fee waiver criteria
established by the Department of
Justice.

effective dates: This rufe is effective
September 3* 1990.

ADDRESSES! United States Section
International Boundary and Water
Commission, 4171 North Mesa, Suite C-
310. El Paso, TX 79902-1422.

FOR FURTHER INFORMATION CONTACT:

Mr. Reinaldo Martinez, ULS. Section
Freedom of information Act (FOIA}
Officer. (915-634-6674).

SUPPLEMENTARY INFORMATION! On July
11,1990; the United States Section*.
IBWC, published this agency's FOLA
proposed rules in the Federal Register

(55 FR 28407). The comment period was
from date of publication to August 10,
1930. No formal comments were
received at this agency, therefore rules
remain as published in the fdy 1L 1990
Federal Register, with the exception of
the definitions which have been placed
in alphabetical order.

List of Subjects in 22 CFR Part 1102
Freedom of information.

22 CFR part 1102 is revised as follows;

PART 1102—FREEDOM OF
INFORMATION ACT

Sec.

1102T Purpose.

1102.2 Definitions.

1102.3 Procedures for requesting access to
records or information.

1102.4 Fees.

1102.5 Categories of requesters for fee
purposes.

11026 Fee waivers and appeals.

1102.7 The Section’s determination and
appeal procedures.

1182.8 Exemptions.

1J02.9 Annual report lo Congress.

110210 Examination of records.

Authority: 5 U.S.C. 552 fPub. L 90-23. as
amended by Pub. L 93-502 and 98-570).

§11021 Purpose.

The purpose of this part is to prescribe
rules, guidelines and procedures to
implement the Freedom of Information
Act (FQ1A), 5 U.S.C. 552, as amended on
November 21,1974, by Public Law 93-
502, and on October 27 r 1986, by Public
Law 99-570i

§ 11022 Definitions.

Act means the Freedom of Information
Act 5 U.S.C. 552, as amended.

Commercial-use request refers lo a
request from or on behalf of one who
seeks information for a cause or purpose
that furthers the commercial trade, or
profit interests of the requester or
person on whose behalf the request is
made. In determining whether a
requester properly belongs in this
category, die Section wiH consider how
the requester will use the documents.

Commissioner means head of the
United States Section, International
Boundary and Water Commission,
United States and Mexico.

Direct costs means those expenditures
which the Section actually incurs in
searching for and duplicating (and in the
case of commercial requesters,
reviewing) documents to respond to a
FOIA request. Direct costs Hicude, for
example, the salary of the employee
performing work (the basic rate of pay
for the employee plus 16 percent of that
rate to cover benefits) and die cost of
operating duplicating machinery. Not
included hi direct costs are overhead

expenses such as costs of space, and
heating or lighting the facility where the
records are stored.

Disclose or disclosure means making
records available, on request for
examination and copying, or furnishing
a copy of records.

Duplication refers to the process of
making a copy of a document in
response to a FOIA request. Such copies
can take the form of paper, microform,
audiovisual materials, or machine-
readable documentation. The Section
will provide a copy of the material in a
form that is usable by the requester
unless it is administratively burdensome
to do so.

Educational institution refers to a
preschool a public or private
elementary or secondary school, an
institution of graduate higher education*
an institution of undergraduate higher
education, an institution of professional
education, and an institution of
vocational education, which operates »
program or programs of scholarly
research.

Noncommercial scientific institutioji
refers to an institution that is not
operated on a “commercial" basis as
that term is referenced above, and
which is operated solely for the purpose
of conducting scientific research the
results of which are not intended to
promote any particular product or
industry.

Person or Requester includes any
individual firm, corporation*
organization or other entity.

Records and/or information are
defined as all books,, papers, manuals,.
map9, photographs, or other
documentary materials,, regardless of
physical form or characteristics, made
or received by the Section under Federal
law or in connection with the
transaction of public business or in
carrying out its freaty responsibilities
and obligations, and preserved or
appropriate for preservation by the
Section as evidence of the organization,
functions, policies, decisions,
procedures, operations, or other
activities of the Government orbecaose
of the information value of the data in
them, but does not include books,
magazines of other material acquired
9olely for library purposes and through-
other sources, and does not include
analyses, computations, or compilations
of information not extant at the time of
the request. The Vena "teeorda” does not
include objects or articles such as
structures, furniture, paintings,
sculptures, three-dimensionot models,
vehicles, and equipment.

Representative of the news media
refers to any person actively gathering

Federal Register / Vol. 55, No. 171 / Tuesday, September 4, 1990 / Rules and Regulations 35899

news for an entity that is organized and
operated to publish or broadcast news
to the public. The term "news" means
information that is about current events
or that would be of current interest to
the public. Examples of news media
include television or radio stations
broadcasting to the public at large, and
publishers of periodicals (but only those
instances when they can qualify as
disseminators of “news”) who make
their products available for purchase or
subscription by the general public. In the
case of “freelance” journalists, they may
be regarded as working for a news
organization if they can demonstate a
solid basis for expecting publication
through that organization even though
not actually employed by it.

Request means a letter or other
written communication seeking records
or information under the Freedom of
Information Act.

Review refers to the process of
examining documents located in
response to a request that is for
commercial use to determine if any
portion of that document is permitted to
be withheld, and processing any
document for disclosure (i.e., doing all
that is necessary to excise them and
otherwise prepare them for release). It
does not include time spent resolving
general legal or policy issues regarding
the application of exemptions.

Search includes all time spent looking
for material that is responsive to a
request, including page-by-page or line-
by-line identification of material within
documents. Searches should be
performed in the most efficient and least
expensive manner so as to minimize
costs for both the Section and the
requester; for example, line-by-line
searches should not be undertaken
when it would be more efficient to
duplicate the entire document. Note that
such activity should be distinguished
from “review” of material in
determining whether the material is
exempt from disclosure. Searches may
be done manually or by computer using
existing programming.

The Section means United States
Section, International Boundary and
Water Commission, United States and
Mexico.

All terms used in this part which are
defined in 5 U.S.C. 552 shall have the
same meaning herein.

§ 1102.3 Procedures for requesting
access to records or information.

(a) A request for any information or
records shall be addressed to the FOIA
Officer, United States Section,
International Boundary and Water
Commission, 4171 North Mesa, suite
C-310. El Paso, TX 79902-1422. The

envelope and the letter shall be clearly
marked “Freedom of Information
Request” or “Request for Records,” or
the equivalent, to distinguish it from
other mail to the Section. If the request
is not so marked and addressed, the 10-
day time limit described in the Act will
not begin to run until the request has
been received by the FOIA Officer in the
normal course of business. In each
instance where a request is received in
the normal course of business, the FOIA
Officer shall notify the requester that its
request was improperly addressed and
the date the request was received.

(b) In order for the Section to locate
records or information and make them
available, it is necessary that it be able
to identify the specific record or
information sought. Persons wishing to
inspect or obtain copies of records or
information should, therefore, seek to
identify them as fully and accurately os
possible. In cases where requests are
submitted which are not sufficient to
permit identification, the FOIA Officer
will endeavor to assist the persons
seeking the records or information in
filling in necessary details. In most
cases, however, persons seeking records
or information will find that time taken
in trying to identify materials in the
beginning is well worth their while in
enabling the Section to respond
promptly to their request.

(c) A person submitting a request
should—

(1) Indicate the specific event or
action, if any or if known, to which the
request has reference.

(2) Designate the Division, Branch, or
Project Office of the Section which may
be responsible for or may have
produced the record or information
requested.

(3) Furnish the date of the record or
information or the date or period to
which it refers or relates, if known.

(4) Name the character of record or
information, such as a contract, an
application, or a report.

(5) List the Section’s personnel who
may have prepared or have knowledge
of the record or information.

(6) Furnish the reference material such
as newspapers or publications which
are known to have made a reference to
the record or information desired.

(7) If the request relates to a matter in
pending litigation or one which has been
litigated, supply the Court location and
case style and number.

(8) Describe, when the request
includes more than one record or source
of information, specifically each record
or information so that availability may
be separately determined.

(9) Clearly indicate whether the
request is an initial request or an appeal

from a denial of a record or information
previously requested.

(10) Identify, when the request
concerns a matter about the Section’s
personnel, the person as follows: First
name, middle name or initial, and
surname; date and place of birth; and
social security account number, if
known.

(d) No particular format is needed for
the request, except that it:

(1) Must be in writing;

(2) Must describe the records or
information sought with sufficient detail
to permit identification;

(3) Should state a limitation of the fees
the requester is willing to pay. if any;
and

(4) Must include the name, address,
and telephone number (optional) of the
person submitting the request.

§1102.4 Fees.

(a) The following shall be applicable
with respect to services rendered to
members of the public under this
subpart:

(1) Fee schedule.

(i) Searching for records, per hour or
fraction thereof per individual:

Professional.$18.00

Clerical...-.$9.00

Includes the salary of the category of
employee who actually performs the search,
plus an additional 16% of that rate to cover
benefits.

(ii) The cost for computer searches
will be calculated based on the salary of
the category of employee who actually
performs the computer search, plus 16%
of that rate to cover benefits, plus the
direct costs of the central processing
unit, input-output devices, and memory
capacity of the actual computer
configuration.

(iii) Reproduction fees:

Pages no larger than 8 Vi by 14 inches when
reproduced by routine electrostatic copying:
$0.10 per page.

Pages requiring reduction, enlargement, or
other special services will be billed at direct
cost to the Section.

Reproduction by other than routine
electrostatic copying will be billed at direct
cost to the Section.

(iv) Certification of each record as a
true copy—$1.00

(v) Certification of each record as a
true copy under official seal—$1.50

(vi) For each signed statement of
negative result of search for record—
$ 1.00

(vii) For each signed statement of
nonavailability of record—$1.00

(viii) Duplication of architectural
photographs and drawings:

Available tracing or reproducible, per

.15900 Federal Register / VoL 55, No. 171 / Tuesday, September 4, 1990 / Rules and Regulations

square hot _$0.10

If intermediate nagative and

reproducible required-$2i»;

Plus tracing per square foot_ $1.00

(ix) Postage and handling. It will be up
to the person requesting the records or
information to designate how the
material will be mailed or shipped In
the absence of such instructions no
records or information wiU be sent to a
foreign address, and records and
information will be sent to domestic
addresses utilizing fust class certified
mail. return receipt requested and will
be billed at direct cost to the Section.

(21 Only requesters who are seeking
documents for commercial use will be
charged for time spent reviewing
records to determine whether thay are
exempt from mandatory disclosure. The
cost for review will be calculated based
on the salary of the category of the
employee who actually performed the
review plus 16% of the rate to cover
benefits. Charges wilt be assessed onfy
for the initial review (i.e., review
undertaken the first time in order to
analyze the applicability of specific
exemption(s) to a particular record or
portion of record} and not review at the
administrative appeal level of the
rxemptlon(s) already applied.

(3) if records requested under this part
are stored elsewhere than the
headquarters of the U.S. Section, IBWC*
4171 North Mesa, EL Paso, TX. the
special cost of returning such records to
the headquarters shall be include in the
search costs. These costs will be
computed at the actual costs of
transportation of either a person or the
requested record between the place
where the record is stored and the
Section headquarters when, for lime or
other reasons, it is not feasible to rely on
Government mail service.

(4) When no specific fee has been
established for a service, or the request
for a service does not fall under one of
the above categories due to the amount
or size or type thereof, the FOIA Officer
is authorized to establish an appropriate
fee, pursuant to the criteria established
in Office of Management and Budget
Circular No* A-25, entitled “User
Charges.'*

(b) Where it is anticipated that the
fees chargeable under this part wiH
amount to more than $25 and die
requester has not indicated fr> advance
her/his willingness to pay fees as high
as anticipated, the requester shaft be
promptly notified of the amount of the
anticipated fees or such portion thereof
as can readily be estimated. The notice
or request for an advance deposit shall
extend an offer to the requester to
confer with knowledgeable Section
personnel in an attempt to reformulate

the request in a manner which will
reduce the fees and meet the needs of
the requester. Dispatch of such notice or
request shall suspend the running of the
period for response by the Section until
a reply is received from the requester.

(c) Search costs are due and payable
even if the record which was requested
cannot be located after all reasonable
efforts have been made, or if the Section
determines that a record which has been
requested, but which is exempt from
disclosure under this part, is to be
withheld.

(d) The Section will begin assessing
interest charges on an* unpaid bill
starting the 31st day following the day
on which the billing was sent. The
accrual of interest will be stayed upon
receipt of the fee. rather than upon its
processing by the Section. Interest will
at the rate precribed in section 3717 of
title 31 U.S.C.

(e) A requester may not file multiple
requests at the same time, each seeking
portions of a document or documents,
solely in order to avoid payment of fees.
When the Section reasonably believes
that a requester or a group of requesters
acting in concert is attempting to break
a request down into a series of requests
for the purpose of evading the
assessment of fees, the Section will
aggregate any such requests and charge
accordingly.

(f) The Section will not require a
requester to make an advance payment,
i.e., payment before work is commenced
or continued on a request, unless:

(1) The Section estimates or
determines that allowable charges that a
requester may be required to pay are
likely to exceed $250. Then the Section
will notify the requester of the likely
costs and obtain satisfactory assurance
of full payment w here the requester has
a history of prompt payment of FOIA
fees, or require an advance payment of
an amount up to the full estimated
charges in the case of requesters with no
history of payment; or

(2) Requesters who have previously
failed to pay fees charged in a timely
fashion (he* within 30 days of the date
of the billingl, the Section will require
such requesters to pay the full amount
owed plus any applicable interest as
provided above or demonstrate that
they have, in fact, paid the fee. and to
make an advance payment of the full
amount of the estimated fee before the
agency begins to process new requests
or pending requests from such
requesters.

When the Section acts under paragraph
(f) (1) or (2) of this section, the
administrative time limit prescribed in
subsection (a)(6l of the FOLA (he* 10

working days from receipt of initial
requests plus permissible extensions of
that time limit) will begin only after the
Section has received payments
described above.

(g) In accordance with the provisions
and authorities of the Debt Collection
Act of 1982 (Pub. L. 97-365}, the Section
reserves the right to disclose
information to consumer reporting
agencies and to use collection agencies,
where appropriate, to encourage
repayment.

(h) No Fees under $10 will be billed by
the Section because the cost of
collection would be greater than the fee:

(i) Requester should pay fees by check
or money order made out to the U.S.
Section, International Boundary and
Water Commission, and mailed to the
Finance and Accounting Office, United
States Section, International Boundary
and Water Commission, 4171 North
Mesa, suite C-310. El Paso, TX 79902-
1422.

§ 1102.5 Categories of requesters for fee
purposes.

There are four categories of
requesters: Commercial use requesters;
educational and non-commercial
scientific institutions; representatives of
the news media; and all other
requesters. The Act prescribes specific
levels of fees for each of these
categories. The Section will take into
account information provided by
requesters in determining their eligibility
for inclusion in one of these categories is
as defined in § 1102.2. It is in the
requester's best interest to provide os
much information as possible to
demonstrate inclusion within a non¬
commercial category of fee treatment.

(a) The Section wiU assess charges
which recover the full direct costs of
searching for, reviewing for release, and
duplicating the records sought for
commercial use. Commercial use
requesters are entitled to neither two
hours of free search time nor 100 free
pages of reproduction of documents..

(b) The Section will provide
documents to educational and non¬
commercial scientific institutions for the
cost of reproduction alone, excluding
charges for the First 100 pages. To be
eligible for inclusion in this category,
requesters must show that the request
being made is authorized by. and under
the auspices of, a qualifying Institution
and that the records are not sought for a
commercial use, but are sought in
furtherance of scholarly {if the request is
from an educational institution) or
scientific (if the request is from a non¬
commercial scientific institution)
research.

Federal Register / Vol. 55. No. 171 / Tuesday, September 4, 1990 / Rules and Regulations 35901

(c) The Section will provide
documents to representatives of the
news media for the cost of reproduction
alone* excluding charges for the first 100
pages. To be eligible for inclusion in this
categoiy; a requester must meet the
criteria in $ 1102.2(m). and the request
must not be made for a commercial use.
In reference to this class of requesters, a
request for records supporting the news
dissemination function of the requester
shall not be considered to be a request
that is for a commercial use.

(d) The Section will charge requesters
who do not fit into any of the categories
above fees which recover the full
reasonable direct cost of searching for
and reproducing records that are
responsive to the request, except that
the first 100 pages of reproduction and
the first two hours of search time shall
be furnished without charge. Moreover,
requests from record subjects for
records about themselves will continue
to be treated under the fee provisions of
the Privacy Act of 1974 which permit
fees only for reproduction.

(e) In making determinations under
this section, the Section may take into
account whether requesters who
previously were granted (b), (c). or (d)
status under the Act did in fact use the
requested records for purposes
compatible with the status accorded
them.

§ 1102.6 Fee waivers and appeals.

(a) Waiver or reduction of any fee
provided for in 5 1102.4 may be made
upon a determination by the FOIA
Officer, United States Section*
International Boundary and Water
Commission. 4171 North Mesa, suite O
310, El Paso. TX 79902-1422. The Section
shall furnish documents without charge
or at a reduced charge provided that:
Disclosure of the information is in the
public interest because it is likely to
contribute significantly to public
understanding of the operations or
activities of the Government and is not
primarily in the commercial interest of
the requester. Requests for a waiver or
reduction of fees shall be considered on
a case-by-case basis.

(1) In order to determine whether
disclosure of the information is in the
public interest because it is likely to
contribute significantly to public
understanding of the operations or
activities of the Government* the Section
will consider the following four factors:

(i) The subject of the request: Whether
the subject of the requested records
concerns the operations or activities of
the Government;

(ii) The informative value of the
information to be disclosed: Whether
the disclosure is likely to contribute to

an understanding of Government
operations or activities;

(iii) The contribution to an
understanding of the subject by the
general public likely to result from
disclosure: Whether disclosure of the
requested information will contribute to
public understanding; and

(iv) The significance of the
contribution to public understanding:
Whether the disclosure is likely to
contribute significantly to public
understanding of Government
operations or activities.

(2) in order to determine whether
disclosure of the information is not
primarily in the commercial interest of
the requester, the Section will consider
the following two factors:

(1) The existence and magnitude of a
commercial interest: Whether the
requester has a commercial interest that
would be furthered by the requested
disclosure; and, if so

(ii) The primary interest in disclosure:
Whether the magnitude of the identified
commercial interest of the requester is
sufficiently large, in comparison with
the public interest in disclosure, that
disclosure is primarily in the commercial
interest of the requester.

(b) The Section will not consider
waiver or reduction of fees for
requesters (persons or organizations)
from whom unpaid fees remain due to
the Section for another information
access request

(c) (1) The Section’s decision to refuse
to waive or reduce fees as requested
under paragraph (a) of this section may
be appealed to the Commissioner,

United States Section, international
Boundary and Water Commission. 4171
North Mesa, Suite C-^310, El Paso, TX
79902-1422. Appeals should contain a 9
much information and documentation as
possible to support the request for a
waiver or reduction of fees.

(2) Appeals will be reviewed by the
Commissioner, who may consult with
other officials of the Section as
appropriate. The requester will be
notified within thirty working days from
the date on which the Section received
the appeal.

§ 1102.7 Tho Section's determination and
appeal procedures.

Upon receipt of any request for
records of information under the Act the
following guidelines shall be followed:

(a) The FOIA Officer will determine
within 10 days (excepting Saturdays,
Sundays, and legal holidays) after
receipt of any such request whether to
comply with such request and will
immediately notify the person making
such request of such determination, the
reasons therefore, and of the right to

such person to appeal to the
Commissioner any adverse
determination.

(b) All appeals should be addressed to
the Commissioner, United States
Section, International Boundary and
Water Commission, 4171 North Mesa,
Suite. C-310. El Paso, TX 79902-1422,
and should be clearly identified as such
on the envelope and in the letter of
appeal by using the marking “Freedom
of Information Appeal” or “Appeal for
Records” or the equivalent. Failure to
properly address an appeal may defer
the date of receipt by the Section to take
into account the time reasonably
required to forward the appeal to the
Commissioner. In each instance when
an appeal is incorrectly addressed to the
Commissioner, he shall notify the person
making the appeal that his appeal was
improperly addressed and of the date
the appeal was received by the
Commissioner. The Commissioner will
make a determination with respect to
any appeal within 20 days (excepting
Saturdays, Sundays, and legal holidays)
after the receipt of an appeal. If on
appeal the denial or the request is in
whole or in part upheld, the
Commissioner will notify the person
making such request of the provisions
for judicial review under the Act An
appeal must be in writing and filed
within 30 days from receipt of the initial
determination (in cases of denials of an
entire request), or from receipt of any
records being made available pursuant
to the initial determination (in case of
partial denials), in those cases where a
request or appeal is not addressed to the
proper official the time limitations
stated above will be computed from the
receipt of the request or appeal by the
proper official.

(c) In unusual circumstances, as set
forth in paragraph (d) of this section, the
time limits for responding to the original
request or the appeal may be extended
by not more than an additional 10
working days by written notice to the
person making a request. This notice
must be sent within either 10- or 20-day
time limit and will specify the reason for
the extension and the date on which
determination is expected to be
dispatched. The extension may be
invoked only once during the
consideration of a request either during
the initial consideration period or during
the consideration of an appeal but not
both.

(d) The unusual circumstances are:

(1) The need to search for and collect

the requested records from field
facilities or other establishments that
are separate from the office processing
the request.

35902 Federal Register / Vol. 55, No. 171 / Tuesday, September 4, 1990 / Rules and Regulations

(2) The need to search for, collect, and
appropriately examine a voluminous
amount of separate and distinct records
which are demanded in a single request;
or

(3) The need for consultation, which
shall be conducted with all practicable
speed, with another agency having a
substantial interest in the determination
of the requestor among two or more
components of the agency having
substantial subject-matter interest
therein.

(e) If the FOIA Officer receives a
request which is of proper concern to an
agency or entity outside the Section, it
will be returned to the person making
the request, advising the requester to
refer it to the appropriate agency or
entity if requester desires, and providing
the requester with the name or title,
address and other appropriate
information. An information copy of the
request and the letter of referral will be
forwarded promptly to the agency or
entity outside the Section that may
expect the request. In the event the
FOIA Officer receives a request to make
available a record or provide
information which is of interest to more
than one agency (Federal, State,
municipal, or legal entity created
thereby), the FOIA Officer will retain
and act upon the request if the Section is
one of the interest agencies and if its
interest in the record is paramount.

(f) The Commissioner’s determination
on an appeal shall be in writing and
when it denies records in whole or in
part, the letter to the person making a
request shall include:

(1) Notation of the specific exemption
or exemptions of the Act authorizing the
withholding.

(2) A statement that the decision is
final for the Section.

(3) Advice that judicial review of the
denial is available in the district in
which the person making the request
resides or has his principal place of
business, the district in which the
Section's records are situated, or the
District of Columbia.

(4) The names and titles or positions
of each official responsible for the
denial of a request.

When appropriate, the written
determination may also state how an
exemption applied in that particular
case, and, when relevant, why a
discretionary rebase is not appropriate.

(g) In those cases where it is
necessary to find and examine records
before the legality or appropriateness of
their disclosure can be determined, and
where after diligent effort this has not
been achieved within the required
period, the FOIA Officer may advise the

person making the request that a
determination to presently deny the
request has been made because the
records or information have not been
found or examined, that the
determination will be considered when
the search or examination is completed
and the time within which completion is
expected, but that the person making the
request may immediately file an
administrative appeal to the
Commissioner.

§1102.8 Exemptions.

(а) 5 U.S.C. 552(b) provides that the
requirements of the FOIA do not apply
to matters that are:

(1) Classified Documents: Specifically
authorized under criteria established by
an Executive order to be kept secret in
the interest of national defense or
foreign policy and that are, in fact,
properly classified under the Executive
order.

(2) Internal Personnel Rules and
Practices: Related solely to the internal
personnel rules and practices of an
agency.

(3) Information Exempt Under Other
Laws: Specifically exempted from
disclosure by statute, provided that the
statute—

(i) Requires that the matters be
withheld from the public in such a
manner as to leave no discretion on the
issue or

(ii) Establishes particular criteria for
withholding or refers to particular types
of matters to be withheld.

(4) Confidential Business Information:
Trade secrets and commercial or
financial information obtained from a
person and privileged or confidential.

(5) Internal Government
Communications: Interagency or intra¬
agency memorandums or letters which
would not be available by law to a party
other than an agency in litigation with
the agency.

(б) Personal Privacy: Personnel,
medical, and similar files the disclosure
of which would constitute a clearly
unwarranted invasion of personal
privacy.

(7) Law Enforcement: Records or
information compiled for law
enforcement purposes, but only to the
extent that the production of such law
enforcement records or information:

(i) Could reasonably be expected to
interfere with enforcement proceedings;

(ii) Would deprive a person of a right
to a fair trial or an impartial
adjudication;

(iii) Could reasonably be expected to
constitute an unwarranted invasion of
personal privacy;

(iv) Could reasonably be expected to
disclose the identity of a confidential

source, including a State, local, or
foreign agency or authority or any
private institution which furnished
information on a confidential basis, and,
in the case of a record or information
compiled by a criminal law enforcement
authority in the course of a criminal
investigation, or by an agency
conducting a lawful national security
intelligence investigation information
furnished by a confidential source;

(v) Would disclose techniques and
procedures for law enforcement
investigations or prosecutions, or would
disclose guidelines for law enforcement
investigations or prosecutions if such
disclosure could reasonably be expected
to risk circumvention of the law; or

(vi) Could reasonably be expected to
endanger the life or physical safety of
any individual.

(8) Financial Institutions: Contained in
or related to examination, operating, or
condition reports prepared by, on behalf
of, or for the use of an agency
responsible for the regulation or
supervision of financial institutions.

(9) Geological Information: Geological
and geophysical information and data,
including maps, concerning wells.

(b) The Section will provide any
reasonably segregable portion of a
record to a requester after deletion of
the portions that are exempt under this
section.

(c) The section will invoke no
exemption under this section if the
requested records are available to the
requester under the Privacy Act of 1974
and its implementing regulations.

(d) Whenever a request is made which
involves access to records described in
paragraph (a)(7)(i) of this section and

(1) The investigation or proceeding
involves a possible violation of criminal
law, and

(2) There is reason to believe that the
subject of the investigation or
proceeding is not aware of its pendency,
and disclosure of the existence of the
records could reasonably be expected to
interfere with enforcement proceedings,
the agency may, during only such time
as that circumstance continues, treat the
records as not subject to the
requirements of this section.

§ 1102.9 Annual report to Congress.

(a) On or before March 1 of each
calendar year the Commissioner shall
submit a report covering the preceding
calendar year to the Speaker of the
House of Representatives and President
of the Senate for referral to the
appropriate committees of the Congress.
The report shall include:

(1) The number of determinations
made by the section not to comply with

Federal Register / Vol. 55, No. 171 / Tuesday, September 4, 1990 / Rules and Regulations 35903

request for records made to the section
under the Act and this part and the
reasons for each such determination.

(2) The number of appeals made by
persons under the Act and this part, the
result of such appeals, and the reason
for the action upon each appeal that
results in a denial of information.

(3) The names and titles or positions
of each person responsible for the denial
of records requested under the Act. and
the number of instances of participation
for each.

(4) The results of each proceeding
conducted pursuant to 552(1)[4)(F) of the
Act including a report of the
disciplinary action taken against the
officer or employee who was primarily
responsible for improperly withholding
records or an explanation of why
disciplinary action was not taken.

(5) A copy of this part.

(6) A copy of the fee schedule and the
total amount of fees collected by the
section for making records available
under the Act

(7) Such other information as
indicates efforts to administer fully Lhe
Act.

(b) A copy of each such report to the
Congress made pursuant to paragraph
(a) of this section will be made available
for public inspection and copying in the
office of the FOIA Officer. United States
Section. International Boundary and
Water Commission. 4171 North Mesa.
Suite 0310, El Paso. TX 79902-1422.

§ 1102.10 Examination of records.

When a request to examine records is
approved by the FOIA Officer, every
reasonable effort will be made to
provide facilities for the purpose of such
examination. “On the spot“ copying will
be available if the FOIA Officer decides
there will be no interference with
ordinary activities or routine business of
the section.

Dated: August 22.199a
Reinaldo Martinez.

FOIA Officer

|FR Doc. 90-20642 Filed 6-31-90: &4S ami
BILLING CODE 70HMM-M

DEPARTMENT OF TRANSPORTATION
Federal Highway Administration
23 CFR Part 140
(FHWA Docket No. 89-14J
RIN 2125-AC07

Payment Procedures: Construction
Engineering Costs

agency: Federal Highway
Administration (FHWA). DOT.

action: Final rule.

summary: The FHWA is amending its
regulation to implement changes
mandated by section 133 of the Surface
Transportation and Uniform Relocation
Assistance Act [STURAA} of 1987 (Pub.
L 100-17.101 Slat. 132) and to clarify
the FHWA policy relating to the
limitation for reimbursement of eligible
construction engineering (CE) costs
established in 23 U.S.C. 121(d). Current
law establishes the limitation at 15
percent without the prior request to
obtain specific approval from FHWA.
EFFECTIVE date: September 4. 1990.

FOR FURTHER INFORMATION CONTACT:
Max 1. Inman. Office of Fiscal Services.
(202) 366-2853. or Michael ]. Laska.
Office of the Chief Counsel (202) 366-
1383. Federal Highway Administration.
400 Seventh Street, SW„ Washington.
DC 20590. Office hours are from 7:45
a^n. to 4:15 p.m.. e.t.» Monday through
Friday, except legal holidays.
SUPPLEMENTARY INFORMATION: Section
133 of the STURAA of 1987 revised 23
U.S.C. 121(d) by eliminating the 10
percent limitation on CE costs and
increasing the limitation to 15 percent of
construction costs without specific
approval from the FHWA.

Prior to the revision of 23 U.S.C.

121(d), reimbursement of CE costs to
State highway agencies (SHAs) was
limited by law to 10 percent of
construction costs or 15 percent if
approved by FHWA. SHAs desiring the
higher limitation were required to
submit a request to FHWA, along with
adequate justification and supporting
data, to demonstrate that a percentage
increase in excess of 10 percent was
necessary when actual eligible CE costs
exceeded the limitation.

Other revisions are also being made
to clarify current FHWA policy
regarding CE costs. The specific changes
for each section of the regulation are as
follows:

Section 140.201 Purpose

This section is amended by removing
the statement relating to increasing the
statutory limitation from 10 to 15
percent.

Section 140.203 Definitions

This section is revised by removing
the definitions and adding a new
section. Policy. This new section
includes provisions relating to the 15
percent limitation and also includes the
following provisions which have been
added to clarify existing FHWA policy
on reimbursement of CE costs:

(1) The new § 140.203(d) requires that
estimated CE costs approved at the time
of project authorization be based on the

amount of costs the SHA expects to
incur, not to exceed the 15 percent
limitation. The 15 percent i* not a
standard additive rate for project cost
estimates.

(2) The new 5 140L203(e) provides
clarification of FHWA policy for
determining CE costs when SHAs opt to
use average rates in lieu of actual costs
per project in accordance with the
provisions of 23 U.S.C. 120(h).

Seel ion 140205 Increase in Per Centum
of Limitation

This section is revised to remove the
procedures for increasing the percentage
limitation from 10 to 15 percent which
are no longer applicable. The revision to
5 140.205 contains provisions relating to
die application of the limitation.

Section 140207 Categories of Funds
Subject to Application of Limitation

Section 140.207 is removed, but the
provisions of this section are included ta
the revised f 140.205, Application of
Limitation. The current regulation lists
specific categories of funds subject to
the limitation. Since most categories of
funds are subject to the limitation, the
revised section lists only those
categories of funds exempt from the
limitation.

A notice of proposed rulemaking
(NPRM) was published m the Federal
Register of August 25.1989 (54 FR 35354-
35356). A total of 8 responses were
received from seven State Highway
Agencies (SHAs). and one engineering
consulting firm within the 60 day
comment period provided in the notice
of proposed rulemaking. Of the
comments received, four supported the
rule change in its entirety. The other
four comments supported the rule
change, but with various
recommendations.

Discussion of Comments

1. One comment recommended that
FHWA limit CE costs to 15 percent of
the annual cost of the Federal-aid
Construction Program for each State.

FHWA cannot accomplish this change
by regulation due to the current
language in section 121, of title 23, U.S.C.
In accordance with 23 U.S.C. 121(a), a
State is reimbursed for the costs of
construction incurred by it on a project-
by-project basis. Reimbursement for CE
(23 U.S.G. 121(d)) is limited to a
percentage (15%) of the construction
costs of a project, excluding from the
cost of construction the costs of rights-
of-way, preliminary engineering, and
construction engineering.

2. One comment recommended that
FHWA restrict the statewide aggregate

33904 Federal Register / Vol. 55. No. 171 / Tuesday. September 4, 1990 / Rules and Regulations

average to the 15% range, but allow
individual projects to be approved by
the FHWA for the CE costs which
exceed the limitation.

FHWA cannot include this
recommendation because of the
restriction of 23 U.S.C. 121(d) which
specifically provides that payments for
construction engineering on any project
financed with Federal-aid funds is
limited to 15% of the costs of
construction. There are no exceptions.

3. One comment recommended adding
(1) The installation and operation of
Field offices and acquisition of
associated office equipment, (2) the
conducting of core boring and
subsurface investigation during
construction, (3) the performance of
design and specification changes during
construction, and (4) the costs
associated with litigations and related
legal actions to the new § 140.203(a),
Policy. To be consistent throughout 23
CFR 140, we are limiting the
reimbursement criteria for CE costs to
those defined in 23 CFR 140.703(b). This
comment will be considered if the
definition for CE as defined in

§ 140.703(b) is revised.

4. A comment from the engineering
consulting firm stated that it does not
quote shop drawing reviews as a part of
construction engineering services, nor
does it believe it is current industry
practice. However, we received a
comment from an SHA indicating that it
continues to include shop drawing
reviews as a part of CE costs. The
consulting firm raises no objection in the
event the FHWA continues to include
shop drawing reviews as a part of CE
cost because it feels it will still be able
to be accommodated within the 15%
limitation. This comment will be
considered if the definition for CE is
revised. We have revised the new

§ 140.203(a) to refer to the reimbursable
costs for CE described in § 140.703.

Regulatory Impact

The FHWA has determined that this
document does not contain a major rule
under Executive Order 12291 or a
significant regulation under the
regulatory policies and procedures of
the Department of Transportation. This
rulemaking action was initiated in order
to implement a statutory mandate. A
regulatory evaluation is not required
because of the ministerial nature of this
action. However, this revision will
eliminate the administrative burden
upon SHAs which was necessary to
justify an increase in the construction
engineering limitation from 10 to 15
percent.

For this reason, the FHWA hereby
certifies that this action will not have a

significant economic impact on a
substantial number of small entities
under the criteria of the Regulatory
Flexibility Act (Pub. L. 95-354).

This action has been analyzed in
accordance with the principles and
criteria contained in Executive Order
12612, and it has been determined that
the proposed rulemaking does not have
sufficient federalism implications to
warrant the preparation of a Federalism
Assessment.

A regulatory information number
(RIN) is assigned to each regulatory
action listed in the Unified Agenda of
Federal Regulations. The Regulatory
Information Service Center publishes
the Unified Agenda in April and
October of each year. The RIN
contained in the heading of this
document can be used to cross reference
this action with the Unified Agenda.

In consideration of the foregoing, the
FHWA proposes to amend title 23, Code
of Federal Regulations, by revising part
140, subpart B as set forth below.

(Catalog of Federal Domestic Assistance
Program Number 20.205, Highway Planning
and Construction. The regulations
implementing Executive Order 12372
regarding intergovernmental consultation on
Federal programs and activities apply to this
program.)

List of Subjects in 23 CFR Part 140

Accounting, Grant programs—
transportation, Highways and roads.

Issued on August 24,1990.

T.D. Larson,

Administrator.

The FHWA proposes to amend 23
CFR part 140, subpart B as follows:

PART 140 — REIMBURSEMENT

1. The authority citation for part 140 is
revised to read as follows and all other
authority citations which appear
throughout part 140 are removed:

Authority: 23 U.S.C. 101(e), 114(a). 120,121.
122 and 315; and 49 CFR 1.48(b).

2. Subpart B of part 140 is revised to
read ss follows:

Subpart B—Construction Engineering
Costs

Sea

140.201 Purpose.

140.203 Policy.

140.205 Application of limitation.

Subpart B—Construction Engineering
Costs

§ 140.201 Purpose.

The purpose of this subpart is to
prescribe policies for claiming
reimbursement for eligible construction
engineering (CE) costs.

§140.203 Policy.

(a) States may be reimbursed for the
Federal share of CE costs incurred as
described in § 140.703 of the CFR.

(b) Reimbursement of CE costs is
limited to 15 percent of the costs of
construction on a project, exclusive of
the costs of preliminary engineering. CE,
and rights-of-way.

(c) The 15 percent limitation applies to
projects for which a final voucher was
not approved prior to April 2,1987.

(d) The estimated CE costs approved
at the time of project authorization shall
be based on the amount of costs the
SHA expects to incur, not to exceed the
15 percent limitation.

(e) If the SHA claims CE costs as an
average percentage of the actual
construction costs in accordance with 23
U.S.C. 120 (h), the average rate shall be
determined based upon reimbursable CE
costs. If the individual projects used in
developing the average percentage
contain CE costs exceeding the
limitation established in 23 U.S.C.

121(d), then those excess costs shall not
be included in determining the average
percentage.

§ 140.205 Application of limitation.

All projects financed with Federal-aid
highway funds are subject to the
limitation except for projects funded
from the following categories:

(a) Emergency Relief (23 U.S.C. 125),

(b) Federal Lands Highways (23 U.S.C.
204),

(c) Defense Access Roads (23 U.S.C.

210 ).

(d) Appalachian Development
Highways (section 201 of Pub. L. 80-4, 79
Stat. 5),

(e) Public Lands Development Roads
and Trails (23 U.S.C. 214), and

(f) Other categories determined by
FHWA to be exempt from the limitation.
[FR Doc. 90-20655 Filed 8-31-90; 8:45 am)

BILLING CODE 4910-22-M

DEPARTMENT OF DEFENSE

Department of the Army

32 CFR Part 651

Environmental Effects of Army
Actions

agency: Department of the Army; DOD.
action: Final rule._

summary: This rule amends the list of
categorical exclusions (CX) in appendix
A, 32 CFR part 651 (Army Regulation
200-2). Specifically, the change to CX A-
14 eliminates a numerical or percentage
trigger except as prescribed by statute

Federal Register / Vol. 55, No. 171 / Tuesday, September 4, 1990 / Rules and Regulations 35905

in order to focus on the environmental
impacts of realignments or reductions.

dates: Effective October 5,1990.

FOR FURTHER INFORMATION CONTACT:

Timothy P. Julius, Environmental
Protection Specialist. Army
Environmental Office. Headquarters,
Department of the Army. Washington,
DC 20310-2600, telephone 202-693-5032.

SUPPLEMENTARY INFORMATION: The

Department of Defense is in the process
of adjusting to a changing political and
military climate. Part of the adjustment
process includes proposals to realign
and reduce current force structure in
response to strategic and budgetary
factors. Through recent experience, the
Army has concluded that categorical
exclusion A-14 should focus on
potential environmental consequences
of proposed realignments or reductions,
and not on numerical or percentage
triggers. The proposed rule to amend A-
14 was published in the Federal Register
on July 20,1990 (55 FR 29636). No
comments were received in response to
the proposal.

List of Subjects in 32 CFR Part 651

Environmental protection,
Environmental impact statements.
Natural resources, Ecology.

Adoption of the Amendment

Accordingly, the Army amends 32
CFR part 651 as follows:

1. The authority citation for 32 CFR
part 651 continues to read as follows:

Authority: National Environmental Policy
Act of 1969 (NEPA), 42 U.S.C. 4321 et seq.
Council on Environmental Quality
Regulations, 40 CFR parts 1500-1508. 43 FR
55978-56007, November 29.1978, as amended
at 51 FR 15625. April 25.1988. and E.0.12114.

Appendix A [Amended]

2. Categorical Exclusion A-14 in
appendix A is revised to read:
Reductions and realignments of civilian
or military personnel that: (1) Fall below
the thresholds for reportable actions as
prescribed by statute; (2) will not result
in the abandonment of facilities or
disruption of environmental, surety (e.g.,
chemical, nuclear, or ammunition
safeguards), or sanitation services (e.g.,
shutdown of a water treatment plant);
and (3) will not otherwise require an EA
or an EIS to implement (e.g., new
construction to accommodate realigned
personnel or major demolition
activities). (REC required.)

Dated: August 29.1990.

Lewis D. Walker.

Deputy Assistant Secretary of the Army
(Environment, Safety and Occupational
Health), OASA (l L&E).

[FR Doc. 96-20739 Filed 8-31-90; 8:45 am)

BILLING CODE 3710-Oft-M

FEDERAL COMMUNICATIONS
COMMISSION

47 CFR Part 73

[Docket No. 88-582; RM-6443, RM-6686,
RM-6887, RM-6688]

Radio Broadcasting Services;
Morehead, Russell, and Westwood, KY

agency: Federal Communications

Commission.

action: Final rule.

summary: This document allots Channel
242A to Morehead, Kentucky, at the
request of Brad-Lee-Todd Corporation,
and Channel 2594 to Westwood,
Kentucky, in response to a petition filed
by James C. Sliger, which was treated as
a counterproposal in this proceeding.

See 54 FR 01196, January 12,1989.
Channel 242A can be allotted to
Morehead, Kentucky, in compliance
with the Commission’s minimum
distance separation requirements. The
coordinates for Channel 242A at
Morehead are North Latitude 38-11-37
and West Longitude 83-24-16. Channel
259A can be alloted to Westwood,
Kentucky, in compliance with the
Commission’s minimum distance
separation requirements with a site
restriction 12.2 kilometers (7.6 miles)
southwest. The coordinates for Channel
259A at Westwood are North Latitude
38-26-20 and West Longitude 82-47-52.
With this action, this proceeding is
terminated.

dates: Effective October 15,1990; The
window period for filing applications
will open on October 16,1990, and close
on November 15,1990.

FOR FURTHER INFORMATION CONTACr.

Nancy J. Walls, Mass Media (202) 634-
6530.

SUPPLEMENTARY INFORMATION: This i8 8
synopsis of the Commission’s Report
and Order, MM Docket No. 88-582,
adopted August 15,1990, and released
August 29,1990. The full text of this
Commission decision is available for
inspection and copying during normal
business hours in the FCC Dockets
Branch (Room 230), 1919 M Street, NW.,
Washington. DC. The complete text of
this decision may also be purchased
from the Commission’s copy contractors,
International Transcription Service,

(202) 857-3800, 2100 M Street. NW.. Suite
140, Washington, DC 20037.

List of Subjects in 47 CFR Part 73

Radio broadcasting.

1. The authority citation for part 73
continues to read as follows:

Authority: 47 U.S.C. 154, 303.

§73.202 [ Amended 1

2. Section 73.202(b), the Table of FM
Allotments is amended under Kentucky
by adding Channel 242A at Morehead,
and by adding Westwood. Channel
259A.

Kathleen B. Levitz,

Deputy Chief, Policy and Rules Division,

Mass Media Bureau.

[FR Doc. 90-20746 Filed 8-31-90; 8:45 am)

BILUNG CODE 6712-01-11

47 CFR Part 73

[MM Docket No. 89-400; RM-6808]

Radio Broadcasting Services;
Georgetown, TX

AGENCY: Federal Communications

Commission.

action: Final rule.

summary: This document substitutes
Channel 299C3 for channel 299A at
Georgetown, Texas, and modifies the
permit of Station KJWL to specify
operation on the higher class co¬
channel, at the request of Williamson
County Communications. See 54 FR
39211 September 25,1989. Channel
299C3 can be allotted to Georgetown in
compliance with the Commission's
minimum distance separation
requirements with a site restriction of
18.9 kilometers (11.7 miles) northeast to
accommodate petitioner’s desired
transmitter site. The coordinates for
Channel 299C3 at Georgetown are 30-
43-08 and 97-30-24. With this action,
this proceeding is terminated.

EFFECTIVE DATE: October 15.1990.

FOR FURTHER INFORMATION CONTACT:
Andrew J. Rhodes, (202) 634-6530.
SUPPLEMENTARY INFORMATION: This is a
synopsis of the Commission’s Report
and Order, MM Docket No. 89-400,
adopted August 17,1990. and released
August 29,1990. The full text of this
Commission decision is available for
inspection and copying during normal
business hours in the FCC Dockets
Branch (Room 230), 1919 M Street, NW.,
Washington, DC. The complete text of
this decision may also be purchased
from the Commission’s copy contractors.
International Transcriptional Service,

35906 Federal Resistor / Vol. 55* No. 171 / Tuesday, September 4, 1990 / Rules and Regulations

(202) 357-3300, 2100 M Street, NW n Suite
140. Washington, DC 20037.

List of Subjects in 47 CFR Part 73

Radio broadcasting.

PART 73—(AMENDED)

1. The authority citation for part 73
continues to read as follows:

Authority: 47 U.S.C. 154, 303.

§73.202 (Amended 1

2. Section 73^Q2(b), the Table of FM
Allotments is amended under Texas by
removing Channel 299A and adding
Channel 299C3 at Georgetown.

Federal Communications Commission.

Kathleen B. Levttz.

Deputy Chief. Policy and Rubs Division,

Mass Media Bureau.

|FR Doc. 90-20744 Filed 8-31-90; 345 am(
BILLING CODE 6712-Of-M

DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service

50 CFR Part 32
RiN 1018 AA71

Refuge-Specific Hunting Regulations

AGENCY: Fish and Wildlife Service,
Interior.

action: Final rule; correction.

summary: The Fish and Wildlife Service
here corrects four errors relating to a
final rule on refuge-specific hunting
regulations that appeared in the Federal
Register on November 7,1939 (54 FR
46730). The errors were procedural or
typographical in nature and are
discussed briefly below.

FOR FURTHER INFORMATtON CONTACT!
Larry LaRochelle, U.S. Fish and Wildlife
Service, Division of Refuges, MS 670-
ARLSQ, 1849 C Street NW., Washington,
DC 20240; Telephone: 703/358-2043.
SUPPLEMENTARY INFORMATION:

§32.12 lAmended]

1. On page 46731, third column,
amendatory action 2, lines 9 through 12,
remove the words "removing paragraphs
(H)(2); and redesignating paragraphs

(11) (3) and (4) as paragraphs (11) (2)
and (3) respectively” This amendment
was accomplished in a previous
rulemaking on October 31,1983 (53 FR
43891).

§32.22 (Amended]

2. On page 46732, first column,
amendatory action 3, line 3, change
"(q){3)(ir to "(q)(4](in line 5, change
••((T)(10)(HT to *'(ff)(8)(ii} M ; second
column, change "(3) D*Arbonne National
Wildlife Refuge” to “(4) D’Arbonne
National Wildlife Refuge”; third column,
change "(10) Umatilla National Wildlife
Refuge’’ to ‘‘(81 Umatilla National
Wildlife Refuge”.

§ 32.32 (Amended)

3. On page 46732, third column,
amendatory action 4, second line change
"paragraphs (d)(5)” to "paragraphs
(d)(0)”: in the second and third lines of
narrative under § 32.32 refuge-specific
regulations; big game, change "(5) White
River National Wildlife Refuge” to ”(6)
White River National Wildlife Refuge”.

Dated: August 10,1990

Dick Smith.

Acting Director. Fish and Wildlife Service.

(FR Doc. 90-20724 Filed 8-31-90; 8:45 anal

BILLING CODE 43tO>S5-M

35907

Proposed Rules

Federal Register

Vol. 55, No. 171
Tuesday. September 4. 1990

This section of the FEDERAL REGISTER
contains notices to the public of the
proposed issuance of rules and
regulations. The purpose of these notices
is to give interested persons an
opportunity to participate in the rule
making prior to the adoption of the final
rules.

DEPARTMENT OF AGRICULTURE
Farmers Home Administration
7 CFR Part 1965

Security Servicing for Multiple Family
Housing Loans

agency: Farmers Home Administration.

usOa.

action: Proposed rule.

summary: The Farmers Home
Administration (FmHA) proposes to
amend its Multiple Family Housing
Security Servicing regulations. This
action is being taken to incorporate
flexibility in servicing delinquent
multiple housing accounts based on
annual servicing needs and goals
established by the National Office. This
amendment will delete the necessity for
classifying delinquent multiple housing
accounts which will eliminate
duplication of work. The reason for the
delinquency and plans for resolving the
delinquency are include in the serving
plan required by the regulation.

DATES: Comments must be received on
or before November 3.1990.
addresses: Submit written comments
in duplicate to be Office of the Chief.
Directives and Forms Management
Branch. FmHA, room 6348, South
Agriculture Buildings. Washington, DC
20250. All written comments made
pursuant to this notice will be available
for public inspection during regular
work hours at the above address.

FOR FURTHER INFORMATION CONTACT:
Wanda L. Triplet, Loan Specialist,
Multiple Family Housing Servicing and
Property Management Division. Farmers
Home Administration (FmHA). USD A.
room 5333, South Agriculture Building.
14th and Independence. SW.. DC 20250.
telephone (202) 382-1612.
SUPPLEMENTARY INFORMATION:
Classification

This action has reviewed under USDA
procedures established in Departmental
Regulation 1512-1, which implements

Executive Order 12291, and has been
determined to be nonmajor because
there will not be an annual effect on the
economy of $100 million or more; a
major increase in cost or prices for
consumers, individual industries.
Federal, State, or local government
agencies or geographic regions; or
significant adverse effects on
competition, employment, investment,
productivity, innovation, or on the
ability of the United States-based
enterprises to compete with foreign-
based enterprises in domestic or export
market^.

Environmental Impact Statement

This document has been reviewed in
accordance with 7 CFR part 1940,
Subpart G. “Environmental Programs.”

It is the determination of FmFA that this
action does not constitute a major
Federal action significantly affecting the
quality of the human environmental,
and, in accordance with the National
Environmental Policy Act of 1969, Public
L 91-190, an Environmental Impact
Statement is not required.

Regulatory Flexibility Act

This proposed rule has been reviewed
with regard to the requirements of the
Regulatory Flexibility Act (5 U.S.C. 601-
612). The undersigned has determined
and certified by signature of this
document that this rule will not have
significant economic impact on a
substantial number of small entities,
since this rulemaking action does not
involve a new or expanded program.

Intergovernmental Consultation

For the reasons set forth in the final
Rule related Notice(s) to 7 CFR part
3015, subpart V, 48 FR 29112, June 24,
1983, programs 10.415 Rural Rental
Housing Loans and 10.427, Rural Rental
Assistance Payments (Rental
Assistance) are subject to Executive
Order 12372, which requires
intergovernmental consultation with
State and local officials.

Programs Affected:

These changes affect the following
FmHa program/activites as listed in the
Catalog of Federal Domestic Assistance:
10.405— Farm Labor Housing Loans and
Grants; 10.415 —Rural Rental Housing
Loans.

List of subjects in 7 CFR Part 1965

Administrative practice and
procedure, Low and moderate income
housing-Rental, Mortgages.

Therefore, as proposed, chapter XVIII,
title. 7, Code of Federal Regulations is
amended as follows:

PART 1965 —REAL PROPERTY

1. The authority citation for part 1965
continues to read as follows:

Authority: 7 U.S.C. 1989; 41 U.S.C. 1480;

5 U.S.C. 301; 7 CFR 2.33; 7 CFR 2.70.

Subpart B—Security for Multiple
Housing Loans

2. Section 1965.85 is amended by
revising paragraph (b) and (e) to read as
follows:

§ 1965.85 Default and liquidation.

• * • • *

(b) Servicing delinquent accounts.

(1) The District Director will service
delinqent accounts with guidance and
assistance as necessary from the State
Director. Every delinquent borrower will
be serviced according to a routine
established for the particular loan type
by the State Director.

(1) [Reserved)

(ii) [Reseved]

(iii) [Reserved]

(iv) [Reserved]

(2) [Reserved]

(3) [Reserved]

(4) [Reserved]

» • • • •

(e) Liquidation. Liquidation of all
mutiple-family type loans will be
handled according to the applicable
portions of subpart A of part 1955 of this
chapter. Suspension, cancellation,
transfer, and reinstatement of interest
credits and rental assistance during the
liquidation process will be serviced in
accordance with subpart A of part 1955
and subpart C of part 1930 of this
chapter.

Dated: July 25,1990.

La Verne Ausman,

Administrator, Farmers Home
Administration.

|FR Doc. 90-20722 Filed 8-31-90; 8:45 am|

BILLING COOE 3410-07-*!

35908

Federal Register / Vol. 55, No. 171 / Tuesday, September 4, 1990 / Proposed Rules

SMALL BUSINESS ADMINISTRATION
13 CFR Part 121

Small Business Size Standards; Waiver
of the Nonmanufacturer Rule

agency: Small Business Administration.
action: Notice of intent to waive the
nonmanufacturer rule for nine classes of
petroleum products, except for seven
geographical areas of the United States.

summary: The Small Business
Administration (SBA) is considering a
waiver to its "nonmanufacturer rule" for
nine petroleum products, except within
seven geographical areas. This partial
waiver is being considered because it
appears that small refiners provide
petroleum products to the Federal
government in only seven geographic
market areas. The effect of a waiver
would be to allow an otherwise
qualified regular dealer to supply the
product of any domestic refiner on a
Federal contract set aside exclusively
for small business or awarded through
the 8(a) program. The products under
consideration include: heating oils,
kerosine, automotive gasoline, and
diesel fuels, as well as certain other
specialty petroleum products. The
purpose of this notice is to solicit
comments and additional information
from interested parties.

DATES: Comments must be submitted on
or before October 4,1990.

ADDRESS COMMENTS TO: Robert J.
Moffitt, Chairperson, Size Policy Board.
U.S. Small Business Administration.

1441 L Street, NW., Room 000.
Washington, DC 20416.

FOR FURTHER INFORMATION CONTACT:
Gary M. Jackson. Director, Size
Standards Staff, (202) 653-6373.
SUPPLEMENTARY INFORMATION: Public
Law 100*856, enacted on November 15,
1988, incorporated into the Small
Business Act the previously existing
regulation that recipients of Federal
contracts set aside for small business or
8(a) contracts must provide the product
of small business manufacturer or
processor, if the recipient is ocher than
the actual manufacturer or processor.
This requirement is commonly referred
to as the "nonmanufacturer rule." The
SBA regulations imposing this
requirement are found at 13 CFR
121.906(b) and 121.1106(b). Section
303(b) of the law provided for waiver of
this requirement by SBA for any “class
of products" for which there are no
small business manufacturers or
processors in the Federal markeL This
notice proposes to waive the
nonmanufacturer rule for fuel oils plus

automotive gasoline for those
geographical areas in which there have
been no small refiner in the Federal
market.

A class of products is considered to
be a particular Product and Service
Code (PSC) under the Federal
Procurement Data System or an SBA
recognized product line within a PSC

To be considered in the Federal
market a small manufacturer must have
been awarded a contract by ihe Federal
government within the last three years.
The definition of the Federal market for
a class of products assumes that
products are supplied on a national
basis. However, a more narrowly
defined geographic market area may be
considered when evaluating a waiver of
a class of products if it is demonstrated
that the products are not supplied on a
nationwide basis. SBA will consider
such factors as perishability of the
product transportation costs relative to
the value of the good, stability of a
market area over time, and potential
entry into a market area by small
business before defining a market area
on less than a national basis.

The definition of these terms is
consistent with previous waiver notices
concerning construction equipment (54
FR 53317) and mainframe computers (55
FR 22799] and with a proposed rule
concerning agency procedures on
nonmanufacturer waivers (55 FR 20467).

The classes of products intended for
waiver, except within seven geographic
locations, are all of the classes of
products within PSC-9140, Fuel Oils,
and one class of products (automotive
gasoline) within PSC-9130, Liquid
Propellants and Fuels, Petroleum Base,
as specifically identified in the following

table:

PSC

Class 0 * psoJuel

9130 (Part) «...

Automotive Gasofcr»e.

9140_

All Classes of Products:

Light and Heavy Burner Fuels.

Diesel Fuels

Kerosme.

Military Specification Type Residuals.
Special and Heavy Grade Turbine
Vessel Propulsion Fuels.

Heavy Fue* and Other Bfacfc (BoHer
Type) FueiSL

Bunker "C” Comcn&aN Grade
Fuels.

Illuminating Oils.

1 Only one class ot products wrthsr. PSC-9130 «s
being considered for waiver.

SBA is considering a waiver of Ihe
above classes of products, with the
exception that the nonmanufacturer rule
continues to remain in effect for all
petroleum set-aside of 8(a) contracts in
seven geographical areas. SBA proposes
to draw a geographic distinction with

respect to the waiver based on
information which demonstrates that,
while small refiners are in the Federal
market, they appear to sell their
products to the Federal government
within limited distances from their
refineries. Another class of products
within PSC-9130, aviation gasoline,
which includes JP-4. was examined by
SBA. Based upon our preliminary
findings, SBA is not presently
considering a waiver for this class of
products, as discussed later in this
notice.

Over the past several years, SBA has
received complaints from small
petroleum dealers regarding the effect of
the nonmanufacturer rule on small
business set-asides and 8(3) contracts
due to the limited availability of
products from small refiners. An
analysis of the petroleum industry was
conducted to determine if a waiver of
the nonmanufacturer rule should be
granted. Contract award data were
obtained from the Federal Procurement
Data Center and the Defense Fuel
Supply Center for this analysis.

SBA has found seven small refiners of
the designated classes of petroleum
products in the Federal market in fiscal
years 1987-1989. Consequently, a waiver
for these classes of products cannot be
granted on a national basis. However, a
more narrow geographical definition of
the Federal market of small refiners may
support a waiver for most geographical
areas in the country.

Through its review. SBA has found
that small refiners supplying petroleum
products to the Federal government may
be capable of delivering their products
only to locations within a limited
geographic market area. Small refiners
may limit delivery within a geographical
market area, other than the entire
United States, due to the high cost of
shipping to the ultimate user relative to
the price of the product. There is a
narrow market price for these products
and, in competition, a few cents
additional price due to the costs of
trucking petroleum over long distance
(e.g., 100 to 200 airmiles) would cause a
bid to be uncompetitive. Deliveries of
these products to the ultimate consumer
are almost always made by short
distance trucking.

SBA reviewed contract data to
determine if small refiners displayed a
pattern of delivery on Federal contracts
for petroleum products within a limited
geographic area. Distances from die
refinery and delivery point on Federal
contracts awarded to six of the seven
small refiners were available from the
Defense Fuel Supply Center. These

35S09

Federal Register / VoL 55, No. 171 / Tuesday, September 4, 1990 / Proposed Rules

awards show nineteen deliveries on
seven contracts.

Small refiners delivered petroleum
products on Federal contracts an
average distance of 65 miles from their
refineries. The maximum delivery
distance by most of the small refiners
greatly exceeded the average mileage.
Two small refiners delivered products
as far as 200 miles and another refiner
delivered its products a maximum
distance of 135 miles.

Because of the limited number of
contracts to small refiners, SBA believes
the most supportable definition of a
Federal market may be demonstrated by
the maximum distance a small refiner
has delivered fuel oil to the Federal
government Accordingly, the maximum
distance a small refiner has delivered on
a Federal contract shall determine its
market area. For administrative
convenience. SBA will round-up the
maximum distance to the nearest 50-
mile increment so as to limit the number
of potential mileage designations.

The geographical areas excluded from
the proposed waiver are:

(a) Within 100 sirmilea of Chaster. Virginia
jb) Within 50 aitmiles of Albany. New York

(c) Within 200 airmites of Vicksburg.

Mississippi

(d) Within 200 airmiles of Cheyenne,

Wyoming

(e) Within 100 atrmiles of Wood Cross, Utah

(f) Within 150 airmiles of Tonopah. Nevada

(g) Wilbin 50 alrmiles of Fairbanks. Alaska

Airmile distance is to be measured in
standard miles (5.260 feet) from any
point from the city or town limits in the
above seven designated areas. Airmile
distance may be computed from a
standard road map or atlas.

For these above geographical areas,
the nonmanufacturer rule would remain
in effect A small regular dealer must
supply the product of 8 small refiner to
be eligible for award of a contract set
aside for small business or through the
8(a) program. For all other area in the
United States, a small regular dealer
would be able to supply the product of
any domestic refiner on small business
set-aside or 8(a) contracts if a waiver is
granted for the nine classes of petroleum
products discussed in this notice.

The class of products of aviation
gasoline, which includes JP—4, (one rJas 3
of products within PSC-9130) has also
been examined. SBA has made a
preliminary determination that for this
class of products small refiners are in
the Federal maiket and that a national
market exists because the product is
frequently shipped by pipeline many
hundreds of miles directly to the Federal
user. The Federal government owns
many pipelines to aviation installations
for the shipment of aviation gasoline.

Thus a waiver for aviation gasoline is
not contemplated, however, SBA is
seeking public comments on the
question of a waiver for this class of
products.

The public is invited to comment or
supply information to SBA on the
proposed waiver of the
nonmanufacturer rule for the nine
classes of petroleum products specified.
Comments regarding SBA'a designation
of the geographic market areas for
which a waiver is not being considered
are encouraged.

Susan S. Engeleiter,

Administrator, US . Small Business
Administration.

(FR Doc. 90-20711 Filed 8-31-90; 8.45 am)
Billing code 802&-cmui

FEDERAL COMMUNICATIONS
COMMISSION

47 CFR Part 1

(Gen. Dkt. 90.264; DA 90-11281
Administrative Practice and Procedure

agency: Federal Communications
Commission.

action: Proposed rule; extension of
time.

summary: The Commission proposed
revised rules (55 FR 28063. Juty 9,1990}
to expedite its comparative hearing
process for new applicants in order to
speed service to the public. A request to
extend the comment date came in from
the Federal Communications Bar
Association.

dates: Comments are due on or before
September 14,1990, and Reply
Comments are due on or before October
15,199*3.

addresses: Federal Communications
Commission, 1919 M Street NVV.,
Washington, DC 20554.

FOR FURTHER INFORMATION CONTACT:

Martin Blumenthal, (202) 254-6530.

SUPPLEMENTARY INFORMATION:

Order

In the Matter Proposals to Reform the
Commission’s Comparative Hearing
Process to Expedite the Resolution of
Cases

Adopted: August 23,1990.

Released: August 24,1990.

By the General Counsel

1. The Federal Communications Bar
Association (FCBA) requests an
extension of 30 days within which to file
comments in this proceeding. The FCBA
states that “it will be difficult, if not
impossible” for it to develop the
consensus of its membership necessary

to prepare its comments by the current
August 27,1990 deadline for filing
comments in this proceeding.

2. In establishing the comment dales
in this proceeding, the Commission
noted that “|extensions of these time
periods are not contemplated.”

However, that admonition must be
balanced against the expected value of
the FCBA’s comments and the
organization’s need to develop a
consensus of its membership. In these
circumstances, we believe that the
public interest will be served by an
extension of the comment period until
September 14,1990.

3. Accordingly, it is ordered\ That,
pursuant to authority delegated in
section 0.251 of the Commission's rides,
47 CFR 0.251, the “Motion for Extension
of Time” filed by the Federal
Communications Bar Association is
grunted, to the extent indicated above.

4. It is further ordered, that the time
for filing Comments in this proceeding is
extended until September 14,1990.

Reply Comments will be due by October
15.1990.

List of Subjects in 47 CFR Part 1

Administrative practice and
procedure.

Federal Communications Commission.
Sheldon M Guttciann,

Associate General Counsel.

(FR Doc. 90-20519 Filed *-32-40; 8:45 am)

BILL-KG CCOC

47 CFR Part 73

(MM Docket No. 90-3*7, RM-7282)

Radio Broadcasting Services; Rainelle,
WV

agency: Federal Communications
Commission.

action: Proposed rule.

summary: This document requests
comments on a petition by R-B
Company. Inc., licensee of Station
WRRL-FM, Rainelle, West Virginia,
proposing the substitution of Channel
237A for Channel 244A at Rainelle, and
modification of its license to specify
operation on Channel 237A. Petitioner
seeks to substitute Class A channels in
order to increase Station WRRL-FM**
power to 6 kilowatts. Channel 237A can
be allotted to Rainelle. West Virginia, in
compliance with the Commission’s
minimum distance separation
requirements ai WRRL-FM’s current
transmitter site. The coordinates are 37-
57-28 and 80^5-45.

3 i910

Federal Register / Vol. 55, No. 171 / Tuesday, September 4. 1990 / Proposed Rules

dates: Comments must be filed on or
before October 22,1990, and reply
comments on or before November 6,
1990.

addresses: Federal Communications
Commission. Washington, DC 20554. In
addition to filing comments with the
FCC, interested parties should serve the
petitioner, or its counsel or consultant,
as follows: David M. Hunsaker,

Putbrese, Hunsaker & Ruddy. 6800
Fleetwood Road, Suite 100, P.O. Box 539,
McLean, Virginia 22101.

FOR FURTHER INFORMATION CONTACT:

Andrew J. Rhodes, Mass Media Bureau.
(202) 634-6530.

SUPPLEMENTARY INFORMATION: This is a
synopsis of the Commission’s Notice of
Proposed Rule Making, MM Docket No.
90-387, adopted August 14,1990, and
released August 29,1990. The full text of
this Commission decision is available
for inspection and copying during
normal business hours in the FCC
Dockets Branch (Room 230), 1919 M
Street NW., Washington, DC. The
complete text of this decision may also
be purchased from the Commission’s
copy contractors. International
Transcription Service. (202) 857-3800.
2100 M Street NW., Suite 140,
Washington, DC 20037.

Provisions of the Regulatory
Flexibility Act of 1980 do not apply to
this proceeding.

Members of the public should note
that from the time a Notice of Proposed
Rule Making is issued until the matter is
no longer subject to Commission
consideration or court review, all ex
parte contacts are prohibited in
Commission proceedings, such as this
one, which involve channel allotments.
See 47 CFR 1.1204(b) for rules governing
permissible ex parte contacts.

For information regarding proper Tiling
procedures for comments, see 47 CFR
1.415 and 1.420.

List of Subjects in 47 CFR Part 73

Radio broadcasting.

Federal Communications Commission.
Kathleen B. Levitz,

Deputy Chief. Policy and Rules Division.

Mass Media Bureau.

|FR Doc. 90-20745 Filed 8-31-90: 8:45 am]
BILLING CODE 6712-01-M

47 CFR Part 73

[MM Docket No. 90-393, RM-7213]

Radio Broadcasting Services;
Tomahawk, Wl

agency: Federal Communications

Commission.

action: Proposed rule.

summary: This document requests
comments on a proposal filed by
Gregory A. Albert and Margaruite S.
Albert, d/b/a Albert Broadcasting,
requesting the substitution of Channel
223C3 for Channel 224A at Tomahawk,
Wisconsin, and modification of the
license for Station WJJQ-FM to specify
the higher class channel. Canadian
concurrence will be requested at
coordinates 45-29-27 and 89-43-33.
dates: Comments must be filed on or
before October 22,1990, and reply
comments on or before November 6,
1990.

addresses: Federal Communications
Commission, Washington, DC 20554. In
addition to filing comments with the
FCC, interested parties should serve the
petitioner, or its counsel or consultant,
as follows: Richard R. Zaragoza, John J.
McVeigh, Fisher, Wayland, Cooper and

Leader, 1255 Twenty-third Street NW..
Suite 800, Washington, DC 20037-1125.
FOR FURTHER INFORMATION CONTACT:
Kathleen Scheuerle, Mass Media
Bureau, (202) 634-6530.

SUPPLEMENTARY INFORMATION: This is a
synopsis of the Commission’s Notice of
Proposed Rule Making. MM Docket No.
90-393, adopted August 17.1990, and
released August 29.1990. The full text of
this Commission decision is available
for inspection and copying during
normal business hours in the FCC
Dockets Branch (Room 230), 1919 M
Street NW., Washington, DC. The
complete text of this decision may also
be purchased from the Commission’s
copy contractors, International
Transcription Service, (202) 857-3800,
2100 M Street NW., Suite 140,
Washington, DC 20037.

Provisions of the Regulatory
Flexibility Act of 1980 do not apply to
this proceeding.

Members of the public should note
that from the time a Notice of Proposed
Rule Making is issued until the matter is
no longer subject to Commission
consideration or court review, all ex
parte contacts are prohibited in
Commission proceedings, such as this
one, which involve channel allotments.
See 47 CFR Section 1.1204(b) for rules
governing permissible ex parte contacts.
For information regarding proper filing
procedures for comments, see 47 CFR
1.415 and 1.420.

List of Subjects in 47 CFR Part 73

Radio broadcasting.

Federal Communications Commission
Kathleen B. Levitz,

Deputy Chief Policy and Rules Division,

Mass Media Bureau.

[FR Doc. 90-20747 Filed 8-31-90: 8:45 am|

BILLING CODE 6712-01-M

Notices

Fedora l Register

Vol. 55. No. 171

Tuesday, September 4. 1900

35911

This section of the FEDERAL REGISTER
contains documents othe# than luies or
proposed rules that are applicable to the
public. Notices of hearings and
investigations, committee meetings, agency
decisions and rulings, delegations of
authority, filing of petitions and
applications and agency statements of
organization and functions are examples
of documents appearing in this section.

DEPARTMENT OF AGRICULTURE

Grant to Save the Children Foundation

agency: Office of Internationa)
Cooperation and Development (OICD),
Agriculture.

action: Notice of intent.

ACTIVITY: OICD intends to award a
Grant to Save the Children Foundation
(SCF) to provide partial funding support
for reproduction/distribution of the
publication, "Planning for
Agroforestry.**.

authority: Section 1458 of the National
Agricultural Research. Extension and
Teaching Policy Act of 1977, as amended
(7 U.S.C. 3291). and the Food Security
Act of 1985 [pub. L 99-198).

OICD anticipates the availability of
funds in fiscal year 1990 (FY1990) for
partial funding support to SCF to
reproduce m Spanish and distribute the
publication, 'Tlarrning for Agroforestry.**
The publication is an easy-to-use
handbook for development workers
interested in exploring agroforestry
projects with their local communities,
with special emphasis m community
organization and promotional aspects.

To date, the book has only existed in
English. Given the limited amount of
literature published in Spanish
addressing these specific themes,
"Planning for Agroforestry** will serve
as a valuable resource to the Latin
America region.

Based on the above, this is not a
formal request for application. An
estimated $5,310 will be available in
FY1990 as partial project support.

Information on proposed Grant #59-
319R-0-005 may be obtained from:
USDA/OIDC/Management Services
Branch, Washington, DC 29250-4300.
Dated: August 27.1990.

Nancy ]. Croft,

Contracting Officer.

[FR Doc. 90-20726 Filed 8 - 31 - 90 ; 8:45 a
BILLING CODE 3410-OP-II

Grant To Save the Children Foundation

agency: Office of International
Cooperation and Development (OICD),
Agriculture.

action: Notice of intent.

activity: OICD intends to award a
grant to Save the Children Foundation
(SCF) to provide partial funding support
for several national workshops in
several countries to analyze the role of
women in natural resource management
and conservation.

authority: Section 1458 of the National
Agricultural Research, Extension and
Teaching Policy Act of 1977, as amended
(7 U.S.C. 3291), and the Food Security
Act of 1985 (Pub. L. 99-198).

OICD anticipates the availability of
funds in fiscal year 1990 (FY1990) for
partial funding support to SCF to hold
several national level workshops to
analyze the role of women in natural
resource management and conservation.
The goal is to enhance the participation
of women In natural resource
management and conserva lion programs
in El Salvador through the sharing of
actual experiences and the analysis of
the role of women by field level
extension staff in NGO and government
programs.

Based on the above, this is not a
forma) request for application. An
estimated $4,720 will be available in FY
1990 as partial project support.

Information on proposed Grant #59-
319R-0-006 may be obtained from:
USDA/OICD/Management Services
Branch. Washington, DC 20250-4300.
Dated; August 27.199a
Nancy J. Croft,

Contracting Officer.

(FR Doc. 90-20727 Fled 8-31-90; 8:45amf

BILUNG CODE 341C-DP-U

Grant to Tuskegee University

action: Office of International
Cooperation and Development (OICD),
Agriculture.

action: Notice of intent.

activity: OICD intends to award a
Grant to Tuskegee University to provide
partial funding support for an
"Internationa] Conference on Sweet
Potato Technology for the 21st Century."
authority: Section 1458 of the National
Agricultural Research, Extension and

Teaching Policy Act of 1977, as amended
(7 U.S.C. 3291), and the Food Security
Act of 1985 (Pub. L. 99-198).

Of CD anticipates the availability of
funds in fiscal year 199Q (FY1990) to
provide partial funding support to
Tuskegee Lhiiversify fora conference to
be held in fune 1991 on 9weef potato
technology. The conference objective in
to bring together experts and interested
parties from around the world to
envision and explore new methods and
technologies for sweet potato breeding,
production, processing, storage,
marketing and utilization as a food, feed
and fuel source.

Based on the above, this is not a
formal request for application. An
estimated $5,000 will be available in
FYl990as partial project support.

Information on proposed Grant #59-
319R-0-004 may be obtained from:
USDA/OICD/Management Services

Branch. Washington. DC 20250-4300.

Dated: August 27,1990.

Nancy J. Croft.

Contracting Officer.

[FR Doc. 90-20725 Fifed 8-31-90; 8:45 amf

BILLING CODE 3410- OP-M

Federal Grain Inspection Service

Designation Renewal of the Mid-Iowa
(IA) Agency, the State of Oregon (OR),
and the Southern Illinois (IL) Agency

agency: Federal Grain Inspection
Service (Service). USD A.
action: Notice.

summary: This notice announces the
designation renewal of Mid-Iowa Grain
Inspection, Inc. (Mid-Iowa), the Oregon
Department of Agriculture (Oregon), and
Southern Illinois Grain Inspection
Service, Inc. (Southern Illinois) as
official agencies responsible for
providing official services under the U.S.
Crain Standards Act, as amended (Act).
effective DATE: October 1,1999.
addresses: James R. Conrad, Chief,
Review Branch, Compliance Division,
FGIS, USDA, room 1647 South Building,
P.O. Box 96454. Washington, DC 20090-
6454.

FOR FURTHER INFORMATION CONTACTt

James R. Conrad, telephone 202-447-
8525.

supplementary information: This

action has been reviewed and

S5912

Federal Register / Vol. 55, No. 171 / Tuesday, September 4, 1990 / Notices

determined not to be a rule or regulation
as defined in Executive Order 12291 and
Departmental Regulation 1512-1;
therefore, the Executive Order and
Departmental Regulation do not apply to
this action.

The Service announced that Mid-
Iowa's. Oregon’s, and Southern Illinois’
designations terminate on September 30.
1990, and requested applications for
official agency designation to provide
official services within specified
geographic areas in the April 2,1990.
Federal Register (55 FR 12241).
Applications were to be postmarked by
May 2,1990. Mid-Iowa, Oregon, and
Southern Illinois were the only
applicants for designation in those areas
and each applied for the entire area
currently assigned to that agency.

The Service announced the applicant
names in the June 1,1990, Federal
Register (55 FR 22361) and requested
comments on the applicants for
designation. Comments were to be
postmarked by July 16,1990. One
comment supporting Southern Illinois'
designation renewal was received.

The Service evaluated all available
information regarding the designation
criteria in section 7(f)(1)(A) of the Act;
and in accordance with section
7(f)(1)(b), determined that Mid-Iowa,
Oregon, and Southern Illinois are able to
provide official services in the
geographic areas for which the Service
is renewing their designation.

Effective October 1 , 1990, and
terminating September 30,1993. Mid-
Iowa, Oregon, and Southern Illinois are
designated to provide official inspection
services in their specified geographic
areas, as previously described in the
April 2 Federal Register.

Interested persons may obtain official
services by contacting Mid-Iowa at 319-
363-0239, Oregon at 503-276-0939, and
Southern Illinois at 618-632-1921.

Authority: Pub. L 94-582, 90 Stat. 2867. as
amended (7 U.S.C. 71 et seq.).

Dated: August 27,1990.

J. T. Abshier,

Director. Compliance Division.

|FR Doc. 90-20594 Filed 8-31-90; 8:45 am)

BILLING CODE 3410-«n-M

Request for Designation Applicants to
Provide Official Services in the
Geographic Area Currently Assigned
to the State of Alabama (AL)

agency: Federal Grain Inspection
Service (Service). USDA.
action: Notice.

summary: Pursuant to the provisions of
the U.S. Grain Standards Act, as
Amended (Act), official agency

designations shall terminate not later
than triennially and may be renewed
according to the criteria and procedures
prescribed in the Act. This notice
announces that the designation of an
agency will terminate, in accordance
with the Act, and requests applications
from parties interested in being
designated as the official agency to
provide official services in the
geographic area currently assigned to
the specified agency. The official agency
is the Alabama Department of
Agriculture and Industries (Alabama).
DATES: Applications must be
postmarked on or before October 4,

1990.

ADDRESSES: Applications must be
submitted to James R. Conrad, Chief.
Review Branch, Compliance Division,
FG1S, USDA, room 1647 South Building,
P.O. Box 96454, Washington. DC 20090-
6454. All applications received will be
made available for public inspection at
this address located at 1400
Independence Avenue, SW., during
regular business hours.

FOR FURTHER INFORMATION CONTACT.
James R. Conrad, telephone 202-447-
8525.

SUPPLEMENTARY INFORMATION: Thi8
action has been reviewed and
determined not to be a rule or regulation
as defined in Executive Order 12291 and
Departmental Regulation 1512-1;
therefore, the Executive Order and
Departmental Regulation do not apply to
this action.

Section 7(f)(1) of the Act specifies that
the Administrator of the Service is
authorized, upon application by any
qualified agency or person, to designate
such agency or person to provide official
services after a determination is made
that the applicant is better able than any
other applicant to provide official
services in an assigned geographic area.

Alabama, located at 1445 Federal Dr.,
Montgomery. AL 36193, was designated
under the Act on March 1 , 1988, as an
official agency, to provide official
inspection services and Class X or Class
Y weighing services.

The designation of this official agency
terminates on February 28,1991. Section
7(g)(1) of the Act states that
designations of official agencies shall
terminate not later than triennially and
may be renewed according to the
criteria and procedures prescribed in the
Act.

The geographic area presently
assigned to Alabama, pursuant to
section 7(f)(2) of the Act, which may be
assigned to the applicant selected for
designation, is the entire State of
Alabama, except those export port
locations within the State.

Interested parties, including Alabama,
are hereby given opportunity to apply
for official agency designation to
provide the official services in the
geographic area, as specified above,
under the provisions of section 7(f) of
the Act and § 800.196(d) of the
regulations issued thereunder.
Designation in each specified geographic
area is for the period beginning March 1,
1991, and ending February 28,1994.
Parties wishing to apply for designation
should contact the Review Branch,
Compliance Division, at the address
listed above for forms and information.

Applications and other available
information will be considered in
determining which applicant will be
designated to provide official services in
a geographic area.

Authority: Pub. L. 94-582. 90 Stat. 2867. as
amended (7 U.S.C. 71 et seq.)

Dated: August 27.1990.

J.T. Abshier.

Director, Compliance Division.

|FR Doc. 90-20595 Filed 8-31-90; 8:45 am)

BILLING COO€ 3410-EN-M

Request for Comments on the
Designation Applicants in the
Geographic Areas Currently Assigned
to the Decatur (IL) Agency and the
State of South Carolina (SC)

agency: Federal Crain Inspection
Service (Service), USDA.

ACTION: Notice.

summary: This notice requests
comments from interested parties on the
applicants for official agency
designation in the geographic areas
currently assigned to Decatur Crain
Inspection, Inc. (Decatur), and the South
Carolina Department of Agriculture
(South Carolina).

date: Comments must be postmarked
on or before October 19,1990.

addresses: Comments must be
submitted in writing to Paul Marsden,
RM. FGIS, USDA, room 0628 South
Building, P.O. Box 96454, Washington,
DC 20090-6454.

SprintMail users may send responses
to IPMARSDEN/FGIS/USDA],
Telecopier users may send responses
to the automatic telecopier machine at
202-447-4628. attention: Paul Marsden.
All comments received will be made
available for public inspection at the
above address located at 1400
Indpendence Avenue, SW., during
regular business hours (7 CFR 1.27(b)).

FOR FURTHER INFORMATION CONTACT

Paul Marsden, telephone (202) 475-3428.

Federal Register / Vol. 55, No. 171 / Tuesday, September 4, 1990 / Notices

35913

SUPPLEMENTARY INFORMATION: This
action has been reviewed and
determined not to be a rule or regulation
as defined in Executive Order 12291 and
Department Regulation 1512-1;
therefore, the Executive Order and
Departmental Regulation do not apply to
this action.

The Service requested applications for
official agency designation to provide
official services within specified
geographic areas in the July 2,1990,
Federal Register (55 FR 27277).
Applications were to be postmarked by
August 1,1990. Decatur and South
Carolina were the only applicants for
designation in those areas, and each
applied for the entire area currently
assigned to that agency.

This notice provides interested
persons the opportunity to present their
comments concerning the applicants for
designation. Commenters are
encouraged to submit reasons for
support or objection to this designation
action and include pertinent data to
support their views and comments. All
comments must be submitted to the
Resources Management Division, at the
above address.

Comments and other available
information will be considered in
making a final decision. Notice of the
final decision will be published in the
Federal Register, and the applicant will
be informed of the decision in writing.

Authority: Pub. L. 94-582, 90 Stat. 2887, as
amended (7 U.S.C. 71 et seq.)

Dated: August 27,1990.

J.T. Abshier,

Director, Compliance Division.

|FR Doc. 90-20596 Filed 8-31-90; 8:45 am)

BILLING CODE 3410-EN M

Request for Comments on the
Designation Applicants in the
Geographic Area Currently Assigned
to the McCrea (IA) Agency

agency: Federal Grain Inspection
Service (Service). USDA.

action: Notice.

summary: This notice requests
comments from interested parties on the
applicant for official agency designation
in the geographic area currently
assigned to the John R. McCrea agency
(McCrea).

dates: Comments must be postmarked
on or before October 19,1990.

addresses: Comments must be
submitted in writing to Paul Marsden,
RM, FGIS, USDA, room 0628 South
Building, P.O. Box 96454, Washington,
DC 20090-6454.

SprintMoil users may respond to
[PMARSDEN / FGIS/ U SD A |.

Telecopier users may send responses
to the automatic telecopier machine at
202-447-4628. attention: Paul Marsden.
All comments received will be made
available for public inspection at the
above address located at 1400
Independence Avenue, SW., during
regular business hours (7 CFR 1.27(b)).
FOR FURTHER INFORMATION CONTACT
Paui Marsden. telephone (202) 475-3428.
SUPPLEMENTARY INFORMATION: This
action has been reviewed and
determined not to be a rule or regulation
as defined in Executive Order 12291 and
Departmental Regulation 1512-1;
therefore, the Executive Order and
Departmental Regulation do not apply to
this action.

The Service requested applications for
official agency designation to provide
official services within a specified
geographic area in the July 2,1990,
Federal Register (55 FR 27278).
Applications were to be postmarked by
August 1,1990. John R. McCrea Agency.
Inc., was the only applicant, and applied
for the entire geographic area.

This notice provides interested
persons the opportunity to present their
comments concerning the applicants for
designation. Commenters are
encouraged to submit reasons for
support or objection to this designation
action and include pertinent data to
support their views and comments. All
comments must be submitted to the
Resources Management Division, at the
above address.

Comments and other available
information will be considered in
making a final decision. Notice of the
final decision will be published in the
Federal Register, and the applicants will
be informed of the decision in writing.

Authority: Pub. L. 94-582. 90 Stat. 2867. as
amended (7 U.S.C. 71 et seq.)

Dated: August 27,1990.

J. T. Abshier,

Director, Compliance Division.

[FR Doc. 90-20597 Filed 8-31-90; 8:45 am)
BILLING COOE 3410-EN-M

Designation Renewal of the Central
Iowa (IA) Agency and the States of
Maine (ME) and Montana (MT)

Correction

In FR Doc. 90-17768, beginning on
page 31204 in the issue of Wednesday.
August 1,1990, make the following
correction under ‘supplementary
information." On page 31204, in the
second column, in the third complete
paragraph, the termination date written
as "termination October 31,1993".

should read "terminating August 31,
1993".

Date: August 27,1990.

J.T. Abshier,

Director. Compliance Division.

|FR Doc. 90-20598 Filed 8-31-90; 8:45 am|

BILLING COOE 3410~£N-M

Advisory Committee Meeting

Pursuant to the provisions of section
10(a)(2) of the Federal Advisory
Committee Act (Pub. L. 92-463), notice is
hereby given of the following committee
meeting:

Name: Federal Grain Inspection
Service Advisory Committee.

Dote: September 20,1990.

Place: Radisson Inn Airport, Greater
Cincinnati Airport, Hebron, Kentucky
41048.

Time: 10 a.m.

Purpose: A subcommittee to review
and prepare recommendations to the
Federal Grain Inspection Service
Advisory Committee on financial
matters affecting the Federal Grain
Inspection Service.

The agenda includes a review of the
financial status of the Federal Grain
Inspection Service, an examination of
cost-cutting measures, a discussion of
unit versus hourly fees, and a review of
whether fee adjustments should be
annually or on some other basis.

The meeting will be open to the
public. Public participation will be
limited to written statements unless
otherwise requested by the
Subcommittee Chairman. Persons, other
than members, who wish to address the
Subcommittee at the meeting or submit
written statements before, at, or after
the meeting should contact Marion
Hartman, Subcommittee Chairman, 8761
Dragoo Road, Hillsboro, Ohio 45133,
telephone (513) 393-2139.

Dated: August 28,1990.

D. R. Galliart,

Acting Administrator.

[FR Doc. 90-20654 Filed 8-31-90; 8:45 am]

BILLING COOE 3410-EN-M

DEPARTMENT OF COMMERCE

Agency Information Collection Under
Review by the Office of Management
and Budget (OMB)

DOC has submitted to OMB for
clearance the following proposal for
collection of information under the
provisions of the Paperwork Reduction
Act (44 U.S.C. chapter 35).

35914 Federal Register /

Agency: National Oceanic and
Atmospheric Administration
Title: Fish Tagging Report—Southeast
Region

Form Number: No form number assigned
Type of Request: New collection
Burden: 4,000 respondents; 300 reporting
hours; average hours per response—
.036 hours.

Needs And Uses: Data are needed to
determine growth rates and migratory
patterns of billfish and other
recreational and commercially valued
species. Anglers volunteer to
participate in the program. Resulting
analyses are used to develop fishery
management plans.

Affected Public: Individuals or
households

Frequency: On occasion
Respondent's Obligation: Voluntary
OMB Desk Officer Ronald Minsk. 395-
7340

Copies of the above information
collection proposal can be obtained by
calling or writing DOC Clearance
Officer. Edward Michals, (202) 377-3271.
Department of Commerce, room 6622,
14th and Constitution Avenue, NW.,
Washington, DC 20230.

Written comments and
recommendations for the proposed
information collection should be sent to
Ronald Minsk, OMB Desk Officer, room
3208, New Executive Office Building.
Washington. DC 20503.

Dated: August 27.1990.

Edward Michals.

Departmental Clearance Officer, Office of
Management and Organization.

(FR Doc. 90-20708 Filed 8-31-00; 8:45 ami

BILLING COO€ 3510-CW-M

Agency Form Under Review by the
Office of Management and Budget
(OMB)

DOC has submitted to OMB for
clearance the following proposal for
collection of information under the
provisions of the Paperwork Reduction
Act (44 U.S.C. chapter 35).

Agency: Bureau of the Census
Title: Annual Survey of Communication
Services

Form Number(s): B-516, B-517. B-518. B-
519, B-520. B-521
Agency Approval Number: None
Type of Request: New collection
Burden: 4.000 hours
Number of Respondents: 1.000
Avg Hours Per Response: 4 hours
Needs and Uses: The Bureau of the
Census will use this survey to provide
key measures of the communication
sector, including the telephone,
broadcasting, and cable television

Vol. 55. No. 171 / Tuesday. September 4. 1990 / Notices

industries. These data will serve as
inputs into the national accounts
calculated by the Bureau of Economic
Analysis, the Bureau of Labor
Statistics' consumer and producer
price indices, and the Department of
Commerce's publication. Industrial
Outlook.

Affected Public : Businesses or other for-
profit organizations, and Small
businesses or organizations
Frequency: Annually
Respondent's Obligation : Mandatory
OMB Desk Officer : Don Arbuckle. 395-
7340

Copies of the above information
collection proposal can be obtained by
calling or writing Edward Michals. DOC
Clearance Officer. (202) 377-3271.
Department of Commerce. Room H6622.
14th and Constitution Avenue. NW..
Washington. DC 20230.

Written comments and
recommendations for the proposed
information collection should be sent to
Don Arbuckle. OMB Desk Officer, Room
3208, New Executive Office Building.
Washington. D.C. 20503.

Dated: August 28.1990
Edward Michals.

Department Clearance Officer, Office of
Management and Organization.

(FR Doc. 90-20695 Filed 8-31-90;8:45am]

BILLING CODE 3S10-07-M

Foreign-Trade Zones Board
(Docket 35-901

Foreign-Trade Zone 75— Phoenix. AZ,
Application for Subzone, Conalr
Corporation, Glendale, AZ

An application has been submitted to
the Foreign-Trade Zones Board (the
Board) by the City of Phoenix, grantee of
FTZ 75, requesting special-purpose
subzone status at the warehousing/
manufactuing facilities of Conair
Corporation, located in Glendale,
Arizona, adjacent to the Phoenix
Customs port of entry. The application
was submitted pursuant to the
provisions of the Foreign-Trade Zones
Act. as amended (19 U.S.C. 8la-8lu), and
the regulations of the Board (15 CFR part
400). It was formally filed on August 20.
1990.

The Conair facility, currently under
construction, will be located on a 100-
acre site within the Glen Harbor
Business Park. Glendale. Arizona.
Operations at the site will include
warehousing/distribution, repair and
assembly/manufacturing of small
electric heating appliances such as hair
dryers, curling irons and flat irons;
electric kitchen appliances, such as food

processors, blenders, microwave ovens,
toasters and warming trays; and.
telephones and answering machines.

The assembly/manufacturing operations
will be relocated from plants abroad.
Initially, a majority of the components
will be sourced abroad, but the
company plans to increase U.S. sourcing
over time. Foreign components will
include plastic handles and knobs,
fasteners, blades, fans, electric motors,
generators, transformers, telephone
components, microphones,
loudspeakers, earphones, transformers,
capacitors, resistors, switches, diodes,
integrated circuits, timing devices and
insulators.

Zone procedures will exempt Conair
from Customs duty payments on the
foreign items used in its exports. On its
domestic sales, the company will be
able to choose the lower Customs duty
rates on the finished products (3.4-5.6%).
The rates on the foreign parts used at
the plant range from 0 to 12 percent. The
applicant indicates that zone procedures
will help improve the international
competitiveness of the company's U.S.
operations.

In accordance with the Board’s
regulations, an examiners committee
has been appointed to investigate the
application and report to the Board. The
committee consists of Dennis Puccinelli
(Chairman). Foreign-Trade Zones Staff.
U.S. Department of Commerce.
Washington, DC 20230; Mr. Paul
Rimmer. Deputy Assistant Regional
Commissioner. U.S. Customs Service.
Southwest Region. 5850 San Felipe
Street. Houston. Texas 77057-3012; and
Colonel Charles S. Thomas. District
Engineer, U.S. Army Engineer District
Los Angeles. P.O. Box 2711, Los Angeles,
California 90053-2325.

Comments concerning the proposed
subzone are invited in writing from
interested parties. They should be
addressed to the Board’s Executive
Secretary at the address below and
postmarked on or before October 22.
1990.

A copy of the application is available
for public inspection at each of the
following locations:

Port Director's Officer. U.S. Customs

Service, 1327 South 27th Street. Sky

Harbor Airport. Phoenix. Arizona

85034.

Office of the Executive Secretay.

Foreign-Trade Zones Board. U.S.

Department of Commerce, room 2835,

14th & Pennsylvania Avenue. NW..

Washington. DC 20230.

Federal Register / Vol. 55, No. 171 / Tuesday, September 4. 1990 / Notices

35915

Dated: August 27.1990.

John J. Da Ponte, Jr.,

Executive Secretary.

|FR Doc. 90-20702 Filed 8-31-90; 8:45 am)

BILLING COO€ 3510-0S-M

[Docket 37-90]

Foreign-Trade Zone 145—Shreveport,
LA (Shreveport-Bossler City Customs
Port of Entry), Application for
Sub 2 one, AT&T Telephone and
Computer Equipment Plant,
Shreveport, LA

An application has been submitted to
the Foreign-Trade Zones Board (the
Board) by the Caddo/Bossier Parishes
Port Commission, grantee of FTZ 145,
requesting special-purpose subzone
status for the American Telephone and
Telegraph Company’s (AT&T)
manufacturing and distribution facility
located in Shreveport, Louisiana,
adjacent to the Shreveport-Bossier City
Customs Port of entry. The application
was submitted pursuant to the
provisions of the Foreign-Trade Zones
Act, as amended (19 U.S.C. 81a-81u),
and the regulations of the Board (15 CFR
part 400). It was formally filed on
August 23,1990.

AT&T’s Shreveport plant (2,400
employees) is currently part of FTZ 145
(Board Order 370, 53 F.R. 1503,1 /20/88),
but no approval has yet been given for
manufacturing activity. The company is
now planning major manufacturing
operations under zone procedures, and
after discussions with District Customs
officials, it has been decided that
subzone status would be more suitable.

The facility is on a 156-acre site
located at 9595 Mansfield Road (U.S.
Highway 171) in southwest Shreveport.

It is the company’s only U.S. facility for
the manufacture of telephone systems
for small and large businesses and
related equipment. In addition, company
plans call for the manufacture of
computer equipment, facsimile machines
and clock radios. Some of the plant’s
inputs are foreign-sourced including
electronic components such as
capacitors, diodes, resistors, transistors,
integrated circuits, printed circuit
boards, power supplies, switches and
connectors; parts of telephones such as
microphones, ringers and keypads; and
parts of computer and facsimile
equipment such as the printed circuit
boards, power supplies, cathode ray
tubes, disk drives, keyboards; and, a
variety of hardware and fasteners.

Zone procedures would exempt AT&T
from Customs duty payments on foreign
items used in its exports. On its
domestic sales the company would be

able to pay duties at the rate applicable
to finished products and components
(3.7 to 8.5%). The duty rates on the parts
and materials used in production range
from 0 percent to 10 percent. The
application indicates that zone
procedures will help improve AT&T’s
international competitiveness.

In accordance with the Board’s
regulations, an examiners committee
has been appointed to investigate the
application and report to the Board. The
committee consists of Dennis Puccinelli
(Chairman), Foreign-Trade Zones Staff,
U.S. Department of Commerce,
Washington, DC 20230; Joel R. Mish,
District Director. U.S. Customs Service,
South Central Region, 423 Canal Street,
suite 244, New Orleans. LA 70130; and
Colonel Francis R. Skidmore, District
Engineer. U.S. Army Engineer District,
Vicksburg, P.O. Box 60, Vicksburg, MS
39181-0060.

Comments concerning the proposed
subzone are invited in writing from
interested parties. They should be
addressed to the Board's Executive
Secretary at the address below and
postmarked on or before October 24,
1990.

A copy of the application is available
for public inspection at each of the
following locations:

U.S. Customs Service. Port Director's
Office, 6125 Interstate Drive, Bay 11,
Shreveport, Louisiana 71109.

Office of the Executive Secretary,
Foreign-Trade Zones Board. U.S.
Department of Commerce, room 2835,
14th & Pennsylvania Avenue, NW..
Washington, DC 20230.

Dated: August 27,1990.

John J. Da Ponte, Jr..

Executive Secretary.

|FR Doc. 90-20701 Filed 8-31-90: 8:45 am|
BILLING CODE 3510-OS-M

[Docket 36-90]

Foreign-Trade Zone 124—LaPlace, LA,
(Gramercy Customs Port of Entry),
Application for Subzone, North
American Shipbuilding, Inc., Lafourche
Parish, LA

An application has been submitted to
the Foreign-Trade Zones Board (the
Board) by the South Louisiana Port
Commission (SLPC), grantee of FTZ 124,
requesting special purpose subzone
status for the shipyard facilities of North
American Shipbuilding, Inc. (NASI) in
Lafourche Parish, Louisiana, adjacent to
the Gramercy Customs port of entry.

The application was submitted pursuant
to the provisions of the Foreign-Trade
Zones Act, as amended (19 U.S.C. 81a-
81u), and the regulations of the Board

(15 CFR part 400). It was formally filed
on August 21, 1990.

The shipyard is located on 14 acres at
Industrial Road and Highway 308 in
Lafourche Parish, Louisiana. The facility
employs 200 persons and is used for the
construction and repair of commercial,
military and research vessels. A 300 ft.
Antarctic research vessel with
icebreaking capacities is currently under
construction for lease to the National
Science Foundation. Up to 20 percent of
the components for the vessel are
sourced abroad including diesel engines
and engine parts, pumps, gears, cranes,
other deck machinery and equipment,
navaigation equipment, propellers,
compressor parts, articles of iron/steel,
and other electronic equipment.

Zone procedures will help NASI
reduce production costs on its current
orders snd compete internationally for
new contracts. Most of the imported
components are subject to duties, which
range from 0 percent to 10 percent, while
the finished products, as oceangoing
vessels, are duty free.

In accordance with the Board's
regulations, an examiners committee
has been appointed to investigate the
application and report to the Board. The
committee consists of John J. Da Ponte,

Jr. (Chairman), Director Foreign-Trade
Zones Staff, U.S. Department of
Commerce, Washington, DC 20230; Joel
R. Mish, District Director, U.S. Customs
Service, South Central Region, 423 Canal
Street, suite 244, New Orleans. LA
70130-2341; and. Colonel Richard V.
Gorski, District Engineer, U.S. Army
Engineer District New Orleans, P.O. Bex
60267, New Orleans, LA 70160-0267.

Comments concerning the proposed
subzone are invited in writing from
interested parties. They should be
addressed to the Board's Executive
Secretary at the address below and
postmarked on or before October 22,
1990.

A copy of the application is available
for public inspection at each of the
following locations:

U.S. Department of Commerce District
Office, 432 World Trade Center, 2
Canal Street, New Orleans, LA 70130.
Office of the Executive Secretary,
Foreign-Trade Zones Board, U.S.
Department of Commerce, room 2835,
14th & Pennsylvania Avenue NW.,
Washington, DC 20230.

Dated: August 27,1990.

John J. Da Ponte, Jr.,

Executive Secretary.

[FR Doc. 90-20703 Filed 8-31-90; 8:45 am]

BILLING CODE 3510-DS-M

35916

Federal Register / Vol. 55, No. 171 / Tuesday. September 4, 1990 / Notices

I Order No. 483)

Resolution and Order Approving the
Application of Brown County,
Wisconsin; for a Foreign-Trade Zone in
the Green Bay, Wisconsin Area;
Proceedings of the Foreign-Trade
Zones Board, Washington, DC;
Resolution and Order

Pursuant to the authority granted in
the Foreign-Trade Zones Act of |une 18.
1934, as amended (19 U.S.C. 81a-81u),
the Foreign-Trade Zones Board (the
Board) adopts the following Resolution
and Order

The Board, having considered the
matter, hereby orders:

After consideration of the application
of Brown County, Wisconsin, filed with
the Foreign-Trade Zones Board on April
14,1989. requesting a grant of authority
for establishing, operating, and
maintaining a general-purpose foreign-
trade zone in Brown County. Wisconsin,
within the Green Bay Customs port of
entry, the Board, finding that the
requirements of the Foreign-Trade
Zones Act, as amended, and the Board’s
regulations are satisfied, and that the
proposal is in the public interest,
approves the application except for that
part of proposed Parcel C, which is
located outside the boundary of the
Village of Ashwaubenon (designated C-
2 in examiners report).

As the proposal involves open space
on which buildings may be constructed
by parties other than the grantee, this
approval includes authority to the
grantee to permit the erection of such
buildings, pursuant to § 400.815 of the
Board’s regulations, as are necessary to
carry out the zone proposal, providing
that prior to its granting such permission
it shall have the concurrences of the
District Director of Customs, the U.S.
Army District F.ngineer. when
appropriate, and the Board’s Executive
Secretary. Further, the grantee shall
notify the Board for approval prior to the
commencement of any manufacturing
operation w'ithin the zone. The Secretary
of Commerce, a Chairman and
Executive Officer of the Board, is hereby
authorized to issue a grant of authority
and appropriate Board Order.

Whereas . by an Act of Congress
approved June 18,1934. an Act ‘To
provide for the establishment, operation,
and maintenance of foreign-trade zones
in ports of entry of the United States, to
expedite and encourage foreign
commerce, and for other purposes," as
amended (19 U.S.C. 81a-81u) (the Act),
the Foreign-Trade Zones Board (the
Board) is authorized and empowered to
grant to corporations the privilege of
establishing, operating, and maintaining

foreign-trade zones in or adjacent to
ports of entry under the jurisdiction of
the United States;

Whereas , Brown County. Wisconsin
(the Grantee), has made application
(Filed April 14,1989, FTZ Docket 7-89. 54
FR 17801, 4/25/89) in due and proper
form to the Board, requesting the
establishment, operation, and
maintenance of a foreign-trade zone in
Brown County, Wisconsin, within the
Green Bay Customs port of entry;

Whereas . notice of said application
has been given and published, and full
opportunity has been afforded all
interested parties to be heard; and

Whereas , the Board has found that
the requirements of the Act and the
Board's regulations are satisfied;

A low therefore . the Board hereby
grants to the Crantee the privilege of
establishing, operating, and maintaining
a foreign-trade zone, designated on the
records of the Board as Foreign-Trade
Zone No. 167, at the location mentioned
above and more particularly described
on the maps and drawings
accompanying the application in
Exhibits IX and X (with the exception of
Site C-2), subject to the provisions,
conditions, and restrictions of the Act
and the Regulations issued thereunder,
to the same extent as though the same
were fully set forth herein, and also the
following express conditions and
limitations:

Operation of the foreign-trade zone
shall be commenced by the Grantee
within a reasonable time from the date
of issuance of the grant, and prior
thereto, any necessary permits shall be
obtained from Federal, State, and
municipal authorities.

The Crantee shall allow officers and
employees of the United States free and
unrestricted access to and throughout
the foreign-trade zone site in the
performance of their official duties.

The grant does not include authority
for manufacturing operations, and the
Grantee shall notify the Board for
approval prior to the commencement of
any manufacturing operations within the
zone.

The grant shall not be construed to
relieve the Crantee from liability for
injury or damage to the person or
property of others occasioned by the
construction, operation, or maintenance
of said zone, and in no event shall the
United States be liable therefor.

The grant is further subject to
settlement locally by the District
Director of Customs and the District
Army Engineer with the Grantee
regarding compliance with their
respective requirements for the
protection of the revenue of the United

States and the installation of suitable
facilities.

In witness whereof the Foreign-Trade
Zone Board has caused its name to be
signed and its seal to be affixed hereto
by its Chairman and Executive Officer
at Washington, DC. this 23rd day of
August, 1990. pursuant to Order of the
Board.

Foreign-Trade Zones Board.

Robert A. Mosbacber,

Secretary of Commerce. Chairman and
Executive Officer.

Attest:

John J. Da Ponle, Jr.,

Executive Secretary.

(FR Doc. 90-20704 Filed 8-31-90; 8:45 am]

BILUNG COOC 3S10-0S-I4

International Trade Administration
(A-588-015)

Television Receivers, Monochrome
and Color, From Japan; Final Results
of Antidumping Duty Administrative
Reviews

agency: International Trade
Administration/Import Administration
Department of Commerce.
action: Notice of final results of
antidumping duty administrative
reviews.

summary: On November 3, 1989, the
Department of Commerce published the
preliminary results of its administrative
reviews of the antidumping finding on
television receivers, monochrome and
color, from Japan, The reviews cover
one manufacturer/exporter of this
merchandise to the United States. Sharp,
and Five periods from April 1.1981
through February 28.198a
W'e gave interested parties an
opportunity to comment on our
preliminary results. At Sharp’s request,
we held a hearing on December 1. 1989.

Based on our analysis of the
comments received and the correction of
certain clerical errors, we have changed
the final results. The final margins range
from zero to 4.76 percent.

EFFECTIVE DATE: September 4,1990.

FOR FURTHER INFORMATION CONTACT:
W'endy J. Frankel or Robert Marenick.
Office of Antidumping Compliance,
International Trade Administration. U.S.
Department of Commerce. Washington.
DC 20230; telephone: (202) 377-3601.
SUPPLEMENTARY INFORMATION:

Background

On November 3,1989, the Department
of Commerce (the Department)
published in the Federal Register (54 FR

Federal Register / Vo!. 55, No. 171 / Tuesday, September 4, 1990 / Notices

35917

46434) the preliminary results of its
antidumping duty administrative
reviews of the antidumping finding on
television receivers, monochrome and
color, from Japan (36 FR 4597, March 10.
1971). We have now completed these
administrative reviews in accordance
with section 751 of the Tariff Act of 1930
(the Tariff Act).

Sharp failed to provide supplementary
model match data requested for the fifth,
sixth, and seventh administrative
reviews. In our preliminary
determination for Sharp’s fifth, sixth,
and seventh administrative reviews we
used the highest rate from each
respective period as best information
available (BIA). However, because of
the circumstances in this case (see our
rsponse to Comments 8 and 9). we have
determined that the use of the most
adverse BIA is not appropriate.
Therefore, for these final results we
have used Sharp’s own rate from the
fourth administrative review as BIA for
that company in the fifth, sixth, and
seventh administrative reviews.

Scope of Review

Imports covered by the reviews are
shipments of television receiving sets,
monochrome and color, and include but
are not limited to projection televisions,
receiver monitors, and kits (containing
all the parts necessary to receive a
broadcast television signal and produce
a video image). Not included are certain
monitors not capable of receiving a
broadcast signal, certain combination
units, and certain subassemblies not
containing the components essential for
receiving a broadcast television signal
and producing a video image.

The reviews cover one manufacturer/
exporter of Japanese television
receivers, monochrome and color. Sharp
Corp., and five periods from April t.

1981 through February 28,1986.

Analysis of Comments Received

We invited interested parties to
comment on the preliminary results. At
Sharp's request, we held a public
hearing on December 1,1989. We
received timely comments from a
domestic party, Zenith Electronics
Corp., and from Sharp. After the close of
the comment period we also received
comments from Montgomery Ward 8
Co.. Incorporated and from the United
Electrical Workers of America,
Independent; the International
Brotherhood of Electrical Workers, the
International Union of Electronic,
Electrical Salaried, Machine and
Furniture Workers; and the Industrial
Union Department (AFL-CIO) (the
Unions) regarding BIA. We have

addressed the issue of the use of BIA in
comments eight and nine.

We have corrected the following
inadvertent clerical errors in our
calculations for the third and fourth
administrative reviews for Sharp:
Incorrect amounts for constructed value
(CV). U.S. transfer price, foreign inland
freight, foreign brokerage/handling
charges, U.S. royalty, ocean freight,
ocean insurance, U.S. inland freight. U.S.
brokerage and handling charges. U.S.
packing costs, U.S. indirect selling
expenses, U.S. commissions, home
market and U.S. packing expenses, and
an incorrect formula for U.S. commodity
tax. In addition, we corrected the
following programming errors: The
inadvertent omission of language to
adjust U.S. price (USP) for export
selling, general, and administrative
expenses, an incorrect deduction of
home market freight expenses from USP.
and a deduction of the exporter's sales
price (ESP) offset from foreign market
value (FMV) before it had been capped
by the amount of U.S. indirect selling
expenses. All corrections and sources
for data used in these final results are
clearly noted in our Final Determination
Analysis Memo.

Comment 1: Zenith argues, with
respect to Japanese taxes rebated or not
collected by virtue of exportation, that
the Department’s metholodolgy resulted
in two unlawful actions: (1) Failure to
cap the amount of tax added to USP at
the amount of tax added to or included
in the heme market price of the
comparison model, even assuming full
pass-through of the tax into home
market price, and (2) adjusting FMV for
a difference in circumstances of sale
quantified as the full amount of the
difference between the tax added to
USP and the tax included in the home
market price.

Zenith further argues that the
Department should have implemented
the ruling of the Court of International
Trade (CIT) in Zenith Electronics Corp.
v. United States, 10 CIT 268, 633 F.Supp.
1382 (1986), appeals dismissed, Fed. Cir.
Nos. 88-1259 and 88-1260 (1909), by
capping the tax adjustment to USP at
the amount of tax added to, or included
in, the home market price. Zenith also
contends that, since the CIT prohibited
the Department from making a
circumstance-of-sale adjustment under
19 U.S.C. 1677b(a)(4)(b) to neutralize the
tax adjustment required by 19 U.S.C.
1677a(d)(l)(c). the Department should
not make such an adjustment in this
case.

Department's Position: We do not
agree with the CIT in Zenith but have
not had an opportunity to appeal the

issue on its merits. Consistent with our
long-standing policy, we have not
attempted to measure the tax “passed
through” to customers in the Japanese
market. W'e do not agree that the
statutory language limiting the amount
of the adjustment to the amount of the
commodity tax "added to or included in
the price” of televisions sold in Japan
requires the Department to measure the
incidence of the tax in an economic
sense.

We agree that the amount of
commodity tax forgiven by reason of the
export of televisions to the United
States must be added to USP under the
statute. The tax base in Japan is the ex¬
factory price less packing and certain
rebates. Therefore, to make an
appropriate "applcs-to-applcs”
comparison, we used the ex-factory
price of the U.S. product as the U.S. tax
base. We calculated the adjustment by
multiplying the U.S. tax base (less
packing) by the tax rate and adding the
result to USP. To avoid artificially
inflating or deflating margins, we made
circumstance-of-sale adjustments equal
to the difference in the tax per unit. See
our position on Comment 3 in Television
Receivers, Monochrome and Color,

From Japan; Final Results of
Antidumping Administrative Review
and Determination Not to Revoke in Part
(54 FR 35517, August 28,1989).

Comment 2: Zenith argues that the
Department should take into account the
average age and balance of each
account payable relating to home
market sales, and apply the
respondents’ short-term interest rate to
those average ages and balances to
offset all claimed selling expenses.
Zenith maintains that the true cost of a
discount or rebate is the discount or
rebate amount minus the savings the
respondent realized by paying the
rebate or discount after the obligation to
pay has been incurred.

Department's Position : We disagree
with Zenith. Any opportunity cost
incurred as a result of a discount or
rebate would have been taken into
account by the seller in setting the terms
of the discount or rebate. Therefore, it i?
unnecessary to impute any additional
costs. This is in contrast to credit costs
or inventory carrying costs, where the
seller does not know how long it will
take for a customer to pay or how long
he will store merchandise before it is
sold.

Comment 3: Zenith is concerned that
the respondent has included, and the
Department has accepted, various
indirect expenses in the ESP offset to
FMV which are not selling expenses.
Zenith urges the Department to require

35918

Federal Register / Vol. 55. No. 171 / Tuesday. September 4, 1990 / Notices

the respondent to demonstrate that each
home market indirect expense is a
selling expense.

Deportment's Position: In this review
we have followed our practice as stated
in the final results of previous reviews
of this order. See Television Receivers,
Monochrome and Color. From Japan;
Final Results of Antidumping
Administrative Review (54 FR 13197.
April 6,1989, our response to Comment
3). The pool of indirect selling expenses
in the home market should include those
expenses which are similar to the
expenses incurred by the subsidiary in
the United States whose function it is to
sell the merchandise. In this instance,
the equivalent home market expenses
include certain general expenses
associated with selling.

Comment 4: Zenith argues that the
Department should include all
antidumping legal fees as an indirect
selling expense deduction from ESP.

Department's Position: We disagree.

In this review we have followed our
practice as stated in the final results of
previous reviews of this order. See
Television Receivers, Monochrome and
Color, From Japan; Final Results of
Antidumping Administrative Review (52
FR 8940, March 20,1937, our response to
Comment 3 and 54 FR 13197, April 8,
1989, our response to Comment 4). As
stated in our “Study of Antidumping
Adjustments Methodology and
Recommendations for Statutory
Change** (November 1985), we do not
consider legal fees paid in connection
with litigation to be an expense related
to sales made in the period of review.
We view legal fees incurred at the
administrative stage of an antidumping
proceeding as meriting similar treatment
since they are incurred in defending
against an allegation of dumping. As
such, they are not expenses incurred in
selling merchandise in the United States.
Further, to deduct antidumping legal
fees as selling expenses would
effectively discriminate against those
respondents who seek legal counsel in
proceedings before the Department.

Comment 5: Zenith argues that the
statute instructs the Department to
reduce USP by the amount of any
charges or expenses incidental to
bringing the merchandise from the
country of exportation to its place of
delivery in the United States (section
72(d)(2)(A) of the Tariff Act). Therefore,
the Department should reduced USP by
the amount of estimated antidumping
duties and any expenses associated
with paying such duties.

Department's Position: In this review
we have followed our position as stated
in the final results of previous reviews
of this order. See Television Receivers,

Monochrome and Color, From Japan;
Final Results of Antidumping
Administrative Review (54 FR 13197,
April 6,1989, our response to Comment 5
and 54 FR 35517, August 28,1989, our
response to Comment 12). Like legal
fees, we do not consider antidumping
duties to be expenses related to the
sales under consideration. Given the
tenuous nature of these estimated rates
and the possibility that they could be
zero, we do not consider them to be
expenses within the meaning of section
772(d)(2)(A) of the Tariff Act for
purposes of determining USP.

Comment 6: Zenith argues that the
Department has incorrectly offset U.S.
commissions with indirect selling
expenses in the home market. Zenith
argues that commissions paid on U.S.
sales compensate the recipients for both
direct and indirect expenses. Unless a
commission is broken up into its direct
and indirect components, and the FMV
offset is capped at only the level of the
indirect expense element, the
commission offst to FMV will be
overstated by the amount of the direct
expense portion of the U.S. commission.

Department's Position: In this review
we have followed our position as stated
in the final results of previous reviews
of this order. See Television Receivers,
Monochrome and Color, From Japan;
Final Results of Antidumping
Administrative Review (54 FR 13197,
April 6,1989, our response to Comment 6
and 54 FR 35517, August 28,1989, our
response to Comment 8). Our
regulations require us to make an
adjustment for situations in which a
commission is paid in one market but
not in the other market. That adjustment
is limited to “the amount of the other
selling expenses’* allowed in the other
market (19 CFR 353.56(b)(l)(1989)). We
do not interpret our regulations to
require us to limit the offset only to the
direct expenses of the recipient of the
commission. We are concerned with the
commission expense from the seller’s
point of view. From the seller’s point of
view, commissions are a direct expense
in their entirety. Therefore, we have
offset the full amount of the commission
in the United States with the indirect
selling expenses in the home market.

Comment 7: Zenith argues that the
Department severely understates the
antidumping cash deposit on entered
merchandise by basing the weighted-
average margins on statutory USP and
not on the entered value of the
merchandise. Upon entry of the
merchandise into the United States, the
Customs Service applies the weighted-
average dumping margin to the declared
entered value as best information
available. Zenith argue that because this

entered value is often less than the
statutory USP, the absolute dollar
amount of dumping duty is less than the
dollar amount that would be the result if
the margin were based on the statutory
USP. Therefore, Zenith urges the
Department to calculate the deposit rate
as a percentage of the entered value and
not as a percentage of the statutory USP.

Department's Position: We disagree
and in this review we have followed our
practice as stated in the final results of
previous review's of this order. See
Television Receivers, Monochrome and
Color, From Japan; Final Results of
Antidumping Administrative Review (52
FR 8940, March 20.1987, our position in
response to Comment 7 54 FR 13917,
April 6,1989, our position in response to
Comment 7 and 54 FR 35517, August 28,
1989, our position in response to
Comment 9). Section 736 of the Tariff
Act requires the Department to instruct
U.S. Customs to “assess an antidumping
duty equal to the amount by w f hich the
FMV of the merchandise exceeds the
United States price of the merchandise

.(9 U.S.C. 673e(a)(l)). At the time

that the merchandise is entered, USP
has yet to be determined. Since cash
deposits of estimated dumping duties
are required at that time, we instruct
Customs to require such cash deposits
based on a percentage of the only value
available, the entered value. If, after an
administrative review, the amount of the
antidumping duties deposited should be
less than the actual amount to be
assessed, we will collect interest on the
difference.

Comments: Sharp alleges that the
basis for the Department’s best
information available (BLA) finding for
the fifth, sixth, and seventh
administrative reviews is flawed on
several grounds. The Department’s
supplementary questionnaire requested
cost-of-production data, which Sharp
did not maintain in the normal course of
business and could not, therefore,
assemble in a short period of time. What
Sharp did maintain is actual material
cost information, which accounts for
approximately 85 percent of full
production costs. Sharp provided this
information to the Department in a
timely manner for the fifth through
seventh administrative reviews.
Moreover, the Department has since
completed its model match selections in
a subsequent review using only material
costs rather than complete production
cost data. Therefore, the Department
cannot now claim that such material
cost information, absent the remaining
cost of production information (labor
and overhead), is inadequate to

Federal Register / Vol. 55, No. 171 / Tuesday, September 4, 1990 / Notices

35919

determine the appropriate home market
comparison models.

Department's Position : YVe disagree.
Respondents are required to respond to
a//of the Department’s information
requests. See Atlantic Sugar, Ud. v.
United States, 744 F.2d 1556.1560 (Fed.
Cir. 1984). Section 776(c) of the Tariff
Act authorizes the Department to resort
to BIA when we do not receive a
complete, accurate, or timely response.
In determining whether the use of BIA
was warranted in this administrative
review, we examined (1) whether
Sharp’s questionnaire response, dated
July 10.1986. was incomplete (see
Olympic Adhesives, Inc . v. United
States, Slip Op., 89-1387,1,17 (Fed. Cir.
March 28.1900)); (2) whether the
Department gave Sharp adequate notice
to correct any deficiencies contained in
lhat response (/</.); and (3) whether
Sharp's deficiency response, dated
September 12,1986, was itself
incomplete or untimely.

Sharp’s model match questionnaire
response was initially due on June 19,
1986. On June 17,1986, Sharp submitted
a letter noting various concerns, but not
responding to the model match
questionnaire. On June 19.1986. On June

17.1986, Sharp submitted a letter noting
various concerns, but not responding to
the model match questionnaire. On July
16,1936, almost one month after the
original due date, Sharp submitted an
incomplete model match response.

Sharp failed to provide the labor and
overhead portions of the cost of
manufacture (COM) information, and it
failed to provide recommendations for
home market comparison models. Both
types of information were clearly
requested in our questionnaire.
Consequently, on August 13.1986, we
issued a deficiency letter to Sharp
requesting the missing information. The
response to the deficiency letter was
originally due on September 2,1986. On
September 9, we extended the
deficiency response due date to
September 12,1986, and advised Sharp
that if the response was not reveived by
that date we would proceed with BIA
for assessment purposes.

On September 12,1986, Sharp
submited a letter to the Department
requesting that the Department refrain
from further activity on the fifth through
seventh reviews until issuance of a final
determination regarding revocation for
Sharp. Although we had afforded Sharp
ample time to provide the requested
data, the letter did not contain any of
the information requested in our August

13.1986, deficiency letter. The record
indicates that Sharp did not provide the
requested data because it believed that

it would prevail in court, arguing that
the Department lacked the legal
authority to conduct the reviews in
question because they covered periods
which post-dated Sharp's tentative
revocation. Sharp could have provided
the requested information and contested
its use in a subsequent lawsuit.
However, the firm chose instead not to
provide the requested information.

Because we cannot force a respondent
to provide information, our only
recourse with an uncooperative
respondent is to use BIA in accordance
with section 776(c) of the Tariff Act. See
Pistachio Croup v. United States et cL
Court No. 86-08-01037, Slip Op. 87-110
(CIT, September 29,1987). However, the
statute authorizes the Department to
select BIA in a given case based upon
the particular circumstances of that
case. See Ansaldo Component /, S.p.A. v.
United States, 628 F. Supp. 198, 205 (CIT
1986); Final Results of Antidumping
Duty Administrative Review, Steel Jacks
From Canada, 52 FR 32957 (1987); and
Replacement Parts for Self-Propelled
Bituminous Paving Equipment From
Canada; Final Results of Antidumping
Duty Administrative Review, 55 FR
20175, May 15,1990.

It is our practice to evaluate the
adequacy of the information in the
administrative record and the degree of
cooperation received in exercising our
discretion to select the appropriate BIA
in a particular case. See 19 CFR 353.37.

In our preliminary determination for
Sharp’s fifth, sixth, and seventh
administrative reviews, we used as BIA
the highest rate for any firm from each
respective period. However, because of
the circumstances in tills case, we have
determined that the use of the most
adverse BIA is inappropriate. Sharp did
provide material costs and did explain
that it did not know how to apply the
cost factors to recommend home market
comparison models. Sharp pointed out
in its 1989 prehearing brief that the
reported material cost9 represented a
large portion (approximately 85 percent)
of the COM of each mode), making labor
and overhead expense less significant
than material costs in determining
physical differences in merchandise for
model match purposes. It is reasonable
that the cost of materials would
represent a major portion of the cost of
manufacture of the product under
review. Nonetheless, it was necessary to
apply an overall BIA rate for each
period because we did not have any
information to use as BIA for the
unreported labor and overhead costs
incurred in producing the subject
merchandise.

Therefore, we have determined for
these final results to use Sharp's own
rate from the fourth administrative
review (4.76 percent) as BIA in the fifth,
sixth, and seventh administrative
reviews. This BIA rate is in accordance
with section 776(c) of the Tariff Act and
19 CFR 353.37 and is sufficient to ensure
timely submissions in future
administrative reviews.

Comment 9: Sharp contests the
Department's use of BIA for the fifth,
sixth, and seventh administrative
review results for that company on the
grounds that the doctrine of estoppel
prevents a party from assuming
contradictory positions in legal
proceedings. Sharp argues that during
litigation with Sharp the Department
took a stance that was contrary to the
Department's statements in its
September 22,1988 letter, which
informed Sharp that the Department
intended to use BIA for the fifth through
seventh reviews. According to Sharp,
the letter clearly implies that the
Department was expecting information
for all three periods, not just one period.
Thus, during the litigation the
Department contradicted itself in stating
that Sharp was required to submit
information for only one administrative
review (the seventh), rather than for
three administrative reviews (fifth
through seventh).

Sharp contends that the Department
could have argued that the lawsuit was
moot because, as a result of the BIA
determination. Sharp no longer had to
respond to the questionnaires. Instead
the Department asserted that Sharp's
claim of irreparable harm (which was
the Department’s BIA threat) was
factually incorrect because Sharp would
not have to answer questionnaires for
the fifth and sixth reviews under the
Department's update policy. Sharp
argues that for the Department "To
claim now that the BIA threat was not
just real but already a fait accompli, is
to play so fast and loose with the courts,
the law. and the way we are supposed
to conduct the business of government
in this country as to require no further
comment" See Prehearing Brief of Sharp
Corporation and Sharp Electronics
Corporation, submitted to the
Department on November 22,1989,
pages 20-21.

Department's Position: We disagree.

1 he final decision to use BIA was based
on Sharp’s refusal to provide the
requested information. The September
22.1988 letter did not constitute a final
decision. By the time that the litigation
with Sharp began, the Department had
not issued a preliminary determination,
let alone a final determination, for

35920

Federal Register / Vol. 55. No. 171 / Tuesday. September 4, 1990 / Notices

Sharp’s fifth through seventh reviews.
We therefore were not in a position to
tell the court duiing the litigation, as
Sharp asserts we should have done, that
a final decision had been made
regarding the use of BIA for Sharp for
the fifth, sixth and seventh reviews.

On October 26,1986, Sharp sued the
Department to enjoin reviews of post-
tentative revocation entries until Sharp’s
request for revocation was decided.
After this suit was brought we adopted
the “update” policy. We agreed to
suspend [i.e., stay) all reviews covering
periods after the tentative revocation,
except for the most recent period (the
“update" review), until the revocation
issue was decided. This update review
for Sharp initially was the seventh
review, but as for litigation progressed,
it became the ninth review.

We ended the suspension of the post-
tentative reviews after we determined
that Sharp was not entitled to
revocation because of margins found in
the second administrative review. See
Television Receivers, Monochrome and
Color, From Japan; Final Results of
Antidumping Administrative Review (54
FR 35517, August 28,1989).

We then proceeded with the third
through seventh review periods for
Sharp. In that context we received and
considered comments from Sharp about
whether we should use BIA in the fifth,
sixth, and seventh reviews because of
Sharp’s previous inadequate responses,
which we had received before the
litigation commenced and before the
update review policy was implemented.
See Comment 8, supra. Despite the
September 22,1986 letter, indicating that
we would use BIA for these periods due
to Sharp's inadequate and untimely
responses, we deferred a final decision
about using BIA until we received and
considered Sharp’s comments on our
preliminary results. Those comments
were submitted on September 1,1989.
Since, at the time that the litigation with
Sharp began (October 1986), we had
made no final decision as to whether to
use BIA, and had in fact not even
published the preliminary results of
review, we were not in a position to
make any representations to the court
about a final decision on the particular
issue of the use of BIA in the seventh
review. After resuming the reviews in
1989, we fully considered the record
including all comments filed and made
in oral argument before arriving at the
final determination to use BIA.

Comment 10: Sharp argues that in the
third and fourth administrative reviews
the Department should have used
Sharp’s prices to its distributors to
calculate foreign market value, or,
alternatively, that the Department

should have granted a level-of-trade
adjustment for the SG&A expenses of
the distributors, since all of the
comparable expenses of Sharp’s U.S.
distributors were deducted from the
resale price in the United States.

Department's Position: In our second
administrative review of Sharp (August
28,1989, 54 FR 35517), we determined
that the distributer-to-dealer level in
Japan was the appropriate level for price
comparisons in the United States
because there was no clear evidence
that home market sales to the
company’s related distributors were at
arms-length. See 19 CFR 353.45 (1989).
We made the same determination for
the third and fourth administrative
reviews based on the same lack of
evidence.

There is, therefore, no need for a
level-of-trade adjustment because sales
in the United States and the home
market were compared at the same level
of trade, i.e., sales from distributors to
dealers. We have included in the ESP
offset the indirect SG&A expenses
incurred by the distributors for the sale
of home market models, as is our usual
practice and policy.

Comment 11: Sharp argues that if the
Department does not use the prices to
its distributors for the third and fourth
administrative reviews, the home
market indirect selling expense offset
should include all indirect selling
expenses incurred by Sharp’s
distributors.

Department's Position: We agree. For
these final results we included both
corporate and distributors’ indirect
selling expenses in the offset for home
market indirect selling expenses.

Comment 12: Sharp argues that for the
third and fourth administrative reviews
the Department must recalculate U.S.
indirect expenses to include commission
expenses on U.S. sales for the purpose
of applying the offset.

Department's Postion: In this case,
commissions were paid only in one of
the markets under consideration, the
United States. Therefore, in accordance
with 19 CFR 353.56(b) (1989). we
subtracted both U.S. indirect expenses
and U.S. commission expenses from
USP and deducted from FMV the
amount of home maket indirect selling
expenses limited by the amount of
indirect selling expenses plus
commissions incurred for U.S. sales.

Comment 13: Sharp argues that for the
third and fourth administrative reviews
the Department must recalculate U.S.
indirect expenses to include all the
expenses of moving television receivers
from factory sites in Japan to U.S.
warehouses.

Department's Position: We do not
agree. The statute states that USP shall
be reduced by the amount included in
such price attributable to any movement
charges. The Department considers
charges incident to bringing the
merchandise from the place of shipment
in the country of exportation to the
place of delievery in the United States to
be movement expenses, not indirect
selling expenses. We deduct movement
expenses from the selling prices in the
United States (19 U.S.C. 772(d) (2) (A))
and the home market (19 U.S.C. 773(a))
to ensure “apples-to-apples”
comparisons.

Comment 14: Sharp argues that the
method used to calculate the commodity
tax adjustment to USP for the third and
fourth administrative reviews is
erroneous. To derive and ex-factory
price the Department subtracted ocean'
freight and marine insurance from a
transfer price which included neither,
and a packing cost which improperly
included packing labor costs instead of
just packing material costs.

Department's Position: We agree and
have made the appropriate changes.

Comment 15: Sharp contests the
Department’s use of constructed value
as FMV for three models in the third and
fourth review periods. Sharp claims the
Department’s contention that “quantities
of such or similar merchandise sold in
the home market were insufficient” is
unsupported by the record since the
Department had previously made
comparable model selections for all
models exported to the United States
during the third and fourth
administrative reviews.

Department's Position: Sharp’s
contention that we had originally
selected home market models for
comparison with all models exported to
the United States during these review
periods is correct. However, upon
further examination of our selections we
determined that three of the selected
home market models were inappropriate
for comparison purposes. With respect
to export model 19H600 and the initially
selected home market comparison
model, we noted during the course of the
review that the cost differences
attributable to the physical differences
between these two models was more
than 30 percent. We consider a home
market model that differs by more than
20 percent in cost to be dissimilar for
comparison purposes in these reviews.

As for the other two models in question,
XR-3019 and XR-3013, we have
determined in accordance with section
771(16) of the Tariff Act that the models
originally selected for comparison
purposes could not reasonably be

Federal Register / Vol. 55, No. 171 / Tuesday, September 4, 1990 / Notices

35921

compared because of numerous
significant dissimilarities in the models*
features and specifications when
compared with the export models.
Therefore, for these three models we

used CV to determine FMV.

Final Results of Review

As a result of the comments received
and the correction of certain clerical

errors, we have revised our preliminary
results for Sharp, and we determine the
margins to be:

Manufacturer

Re-

view

no.

Period of review

Margin

(per¬

cent)

Sharp. .

3

04/01 /81 —03/31 /82........

0.49

4

04/01/82—03/31/83.

4.76

5

04/01 /83—03/31 /84____

4.76

6

04/01/84—02/28/85....

4.76

7

04/01/85—02/28/86.

4.76

The Department will instruct the U.S.
Customs Service to assess antidumping
duties on all appropriate entries.
Individual differences between United
States price and foreign market value
may vary from the percentages stated
above. The Department will issue
appraisement instructions directly to the
Customs Service.

Further, as provided for by section
751(a)(1) of the Tariff Act, a cash deposit
of estimated antidumping duties of 4.76
percent will be required for Sharp. For
any shipments of this merchandise
manufactured by Funai Electric, Fujitsu
General Ltd., Hitachi Ltd., Matsushita
Electric Industrial Corporation,
Mitsubishi Electric Corporation, NEC,
Sanyo Electric Company, Ltd., Toshiba,
or Victor Company of Japan, the cash
deposit will continue to be the same as
the rates published in the final results of
the last administrative review for these
firms (Hitachi and Sanyo: 54 FR 35517,
August 28,1989; Matsushita and Victor
54 FR 13917. April 6,1989; Fujitsu
General and Mitsubishi: 53 FR 4050,
February 11,1988; Funai, NEC, and
Toshiba: 55 FR 2399, January 24,1990).

For any future entries of this
merchandise from a new exporter, not
covered in this or prior reviews, whose
first shipment occurred after February
28,1989, and who is unrelated to any
reviewed firm or any previously
reviewed firm, a cash deposit of
estimated antidumping duties of 26.94
percent shall remain in effect. This is the
rate for Matsushita in the eighth review
period (54 FR 13917, April 6,1989). These
deposit requirements are effective for all
shipments of Japanese television
receivers, monochrome and color,
entered, or withdrawn from warehouse,
for consumption on or after the date of
publication of this notice and shall
remain in effect until publication of the
final results of the next administrative
review.

This administrative review and notice
are in accordance with section 751(a)(1)
of the Tariff Act (19 U.S.C. 1675(a)(1))
and 19 CFR 353.22 (1989).

Dated: August 24,1990.

Francis J. Sailer,

Acting Assistant Secretary for Import
Administration.

(FR Doc. 90-20697 Filed 8-31-90; 8:45 am]
BILLING CODE 3510-DS-M

[C-333-401]

Cotton Shop Towels From Peru Intent
to Terminate Suspended Investigation

AGENCY: International Trade
Administration/Import Administration,
Department of Commerce.
action: Notice of intent to terminate
suspended investigation.

summary: The Department of
Commerce is notifying the public of its
intent to terminate the suspended
countervailing duty investigation on
cotton shop towels from Peru. Interested
parties who object to this termination
must submit their comments in writing
not later than September 30,1990.
EFFECTIVE DATE: September 4, 1990.

FOR FURTHER INFORMATION CONTACT:
Megan Pilaroscia or Barbara Williams,
Office of Agreements Compliance,
International Trade Administration, U.S.
Department of Commerce, Washington,
DC 20230; telephone: (202) 377-3793.
SUPPLEMENTARY INFORMATION:

Background

On September 12,1934, the
Department of Commerce ("the
Department") published an agreement
suspending the countervailing duty
investigation on cotton shop towels from
Peru (49 FR 35835). The Department has
not received a request to conduct an
administrative review of the agreement

suspending the countervailing duty
investigation on cotton shop towels from
Peru for Five consecutive annual
anniversary months. This is the sixth
anniversary.

The Department may terminate a
suspended investigation if the Secretary
of Commerce concludes that a
suspension agreement is no longer of
interest to interested parties.
Accordingly, as required by the
Commerce Department's regulations (19
CFR 355.25(d)(4)), the Department i 9
notifying the public of its intent to
terminate this suspended investigation.

Opportunity to Object

Not later than September 30,1990,
interested parties, as defined in
§ 355.2(i) of the Department’s
regulations, may object to the
Department’s intent to terminate this
suspended investigation.

Seven copies of any such objections
should be submitted to the Assistant
Secretary for Import Administration,
International Trade Administration,
room B-099, U.S. Department of
Commerce, Washington, DC 20230.

If interested parties do not request an
administrative review or object to the
Department’s intent to terminate by
September 30,1990, we shall conclude
that the suspended investigation is no
longer of interest to interested parties
and shall proceed with the termination.

This notice is in accordance with
§ 355.25(d) of the Department’s
regulations.

Dated: August 4,1990.

Eric I. Garfinkel,

Assistant Secretary for Import
Administration.

[FR Doc. 90-20698 Filed 8-31-90; 8:45 am]
BILLING CODE 3510-OS-N

35922

Federal Register / Vol. 55, No. 171 / Tuesday, September 4, 1990 / Notices

IC-331-601I

Certain Fresh Cut Flowers From
Ecuador; Final Results of
Countervailing Duty Administrative
Review

agency: International Trade
Administration/Import Administration
Department of Commerce.

action: Notice of Final Results of
Countervailing Duty Administrative
Review.

summary: On June 13.1990, the
Department of Commerce published the
preliminary results of its administrative
review of the countervailing duty order
on certain fresh cut flowers from
Ecuador. We have now completed that
review and determine the total bounty
or grant to be zero for two firms and 1.60
percent ad valorem for all other firms
for the period October 27,1986 through
December 31.1986, and zero for one firm
and 2.77 percent ad valorem for all other
firms for the period January 1.1987
through December 31.1987.

EFFECTIVE date: September 4.1990.

FOR FURTHER INFORMATION CONTACT:

Lorenza Olivas or Maria MacKay. Office
of Countervailing Compliance,
International Trade Administration. U.S.
Department of Commerce, Washington,
DC 20230; telephone: (202) 377-2786.
SUPPLEMENTARY INFORMATION:
Background

On June 13,1990. the Department oF
Commerce (the Department) published
in the Federal Register (55 FR 23956) the
preliminary results of its administrative
review of the countervailing duty order
on certain fresh cut flowers from
Ecuador (52 FR 1361; January 13.1987).
The Department has now completed that
administrative review in accordance
with section 751 of the Tariff Act of
1930, as amended (the Tariff Act).

Scope of Review >

Imports covered by this review are
shipments of Ecuadorian fresh cut
miniature (spray) carnations, provided
for during the review period under item
192.17 of the Tariff Schedules of the
United States (TSUS), and standard
carnations, standard chrysanthemums
and pompon chrysanthemums, provided
for during the review period under item
192.21 of the TSUS. This merchandise is
currently classifiable under items
0603.10.30. 0603.10.70 and 0603.10.80 of
the Harmonized Tariff Schedule (1 ITS).
The TSUS and HTS item numbers are
provided for convenience and Customs
purposes. The written description
remains dispositive of the scope. Daisies

are excluded from the scope of the
countervailing duty order.

The review covers the period October
27,1986 through December 31.1987 and
eight programs: (1) Tax credit
certificates for exports; (2) Fund for the
Development of Exportable Production:
(3) FOPEX export credit; (4) tax
deduction for new investments; (5) tax
holidays; (6) tax deductions for transfer
of real estate; (7) sales and income tax
deductions; and (8) government
refinancing of public debt.

Analysis of Comments Received

We gave interested parties an
opportunity to comment on the
preliminary results. We received no
comments.

Final Results of Review

As a result of our review, we
determine the total bounty or grant to be
zero for Flores del Ecuador. S.A., and
Empagri, S.A., and 1.60 percent ad
valorem for all other firms for the period
October 27,1986 through December 31,
1988, and zero for FIore9 del Ecuador,
S.A.. and 2.77 percent ad valorem all
other firms for the period January 1,1987
through December 31,1987.

Section 707 of the Tariff Act provides
that the difference between the amount
of a cash deposit, or the amount of any
bond or security, for an estimated
countervailing duty in the preliminary
determination in the investigation and
the duty determined under a
countervailing duty order shall be
disregarded to the extent that the
estimated duty is lower than the duty
determined under the order, which was
published on January 13.1987. The rate
in our preliminary determination (51 FR
37931; October 27.1986) was 1.32
percent ad valorem.

Therefore, the Department will
instruct the Customs Service to
liquidate, without regard to
countervailing duties, shipments of this
merchandise from Flores del Ecuador,
S.A., and Empagri, S.A., and to assess
countervailing duties of 1.32 percent of
the f.o.b. invoice price on shipments of
this merchandise from all other firms
entered, or withdrawn from warehouse,
for consumtpion on or after October 27.
1986 and exported on or before
December 31.1986. Further, the
Department will instruct the Customs
Service to liquidate, without regard to
countervailing duties, shipments of this
merchandise from Flores del Ecuador.
S.A.. and to assess countervailing duties
of 1.32 percent of the f.o.b. invoice price
on shipments of this merchandise from
all other firms exported on or after
(anuary 1,1987 and entered, or
withdrawn from warehouse, for

consumption on or before January 12.
1987. The Department further will
instruct the Customs Service to
liquidate, without regard to
countervailing duties, shipments of this
merchandise from Flores del Ecuador.
S.A., and to assess countervailing duties
of 2.77 percent of the f.o.b. invoice price
on shipments of this merchandise from
all other firms entered, or withdrawn
from warehouse, for consumption on or
after January 13, 1987 and exported on
or before December 31,1987.

The Department will also instruct the
Customs Service to waive cash deposits
of estimated countervailing duties on
shipments of this merchandise from
Flores del Ecuador. S.A.. and to collect a
cash deposit of 2.77 percent of the f.o.b.
invoice price on shipments from all
other firms entered, or withdrawn from
warehouse, for consumption on or after
the date of publication of this notice.
This deposit requirement shall remain in
effect until publication of the final
results of the next administrative
review.

This administrative review and notice
are in accordance with section 751(a)(1)
of the Tariff Act (19 U.S.C. 1675(a)(1))
and 19 CFR 355.22.

Dated: August 22.199a
Marjorie A. Chorlms,

Acting Assistant Secretary for Import
A dministration.

[FR Doc. 90-2065)6 Filed 8-31-90; 8:45 am|
BILLING COOE 3510-DS-U

National Oceanic and Atmospheric
Administration

Evaluation of State Coastal
Management Programs and National
Estuarine Research Reserve

agency: National Oceanic and
Atmospheric Administration, National
Ocean Service. Office of Ocean and
Coastal Resource Management,
Commerce.

ACTION: Notice of availability of
evaluation findings.

summary: Notice hereby given of the
availability of the evaluation findings
for (1) Northern Mariana Islands
Coastal Management Program, and (2)
the Pacific Coastal Interstate
Coordination Grants awarded to the
National Coastal Resources Research
and Development Institute. Section 312
of the Coastal Zone Management Act of
1972, as amended (CZMA), requires a
continuing review of the performance of
each coastal state (defined to include
the Commonwealth of the Northern
Mariana Islands) with respect to funds

Federal Register / Vol. 55. No. 171 / Tuesday. September 4. 1990 / Notices

35923

authorized under the CZMA and to the
implementation of its federally approved
Coastal Management Program. The state
evaluated was found to be adhering to
the programmatic terms of its financial
assistance awards and to its approved
coastal management program; and it
was found to be making progress on
award tasks, special award conditions,
and significant improvement tasks
aimed at program implementation and
enforcement, as appropriate.
Accomplishments in implementing the
coastal management program were
occurring with respect to the national
coastal management objectives
identified in section 303(2)(A)— (I) of the
CZMA. The Pacific Coastal Interstate
Coordination Grants awarded to the
National Coastal Resources Research
and Development Institute included a
number of grants awards funded under
section 309 of the CZMA designed to
foster interstate coordination and
address priority coastal management
problems. A copy of these findings may
be obtained upon request from: Richard
B. Mieremet, Acting Evaluation Officer,
Policy Coordination Division, Office of
Ocean and Coastal Resource
Management, National Ocean Service,
NOAA, 1825 Connecticut Avenue, NW.,
Washington, DC 20235 (202/673-5100).

(Federal Domestic Assistance Catalog 11.419
Coastal Zone Management Program
Administration)

Dated: August 23,1990.

Virginia K. Tippie,

Assistant Administrator for Ocean Services
and Coastal Zone Management
[FR Doc. 90-20640 Filed 8-31-90; 8:45 am]
BILLING CODE 3510-03-M

Louisiana Coastal Management
Program; Intent To Evaluate
Performance

agency: National Oceanic and
Atmospheric Administration, National
Ocean Service, Office of Ocean and
Coastal Resource Management.
Commerce.

action: Notice of intent to evaluate.

summary: The National Oceanic and
Atmospheric Administration, National
Ocean Service, Office of Ocean and
Coastal Resource Management (OCRM).
announces its intent to evaluate from
October 1 through December 31.1990,
the performance of the Louisiana
Coastal Management Program (CMP),
the Washington CMP, the New York
CMP, and the Puerto Rico CMP, and the
performance of the Chesapeake Bay
(Maryland) and Padilla Bay
(Washington) National Estuarine
Research Reserves (NERRs). Evaluation

of coastal management programs will be
conducted pursuant to section 312 of the
Coastal Zone Management Act of 1972,
as amended (CZMA), which requires a
continuing review of the performance of
coastal states with respect to coastal
management, including detailed findings
regarding the extent to which the state
has implemented and enforced the
program approved by the Secretary of
Commerce, addressed the coastal
management needs identified in section
303(2) (A) through (I) of the CZMA, and
adhered to the terms of any grant, loan
or cooperative agreement funded under
the CZMA. Evaluation of the National
Estuarine Research Reserves will be
conducted pursuant to section 315(f) of
the CZMA, which requires the periodic
review of the performance of each
reserve with respect to its operation and
management. The reviews involve
consideration of written submissions, a
site visit to the state, and consultations
with interested Federal, state and local
agencies and with members of the
public. Public meetings will be held as
part of the site visits. The respective
state will issue notice of these meetings.
Copies of each state’s most recent
performance report, as well as OCRM’s
notification letter and supplemental
information request letter to the state,
are available upon request from the
OCRM. Written comments from all
interested parties on each of these
programs are encouraged at this time.
Please direct comments to Richard B.
Mieremet (see further information
contact below). OCRM will place a
subsequent notice in the Federal
Register announcing the availability of
the Final Findings based on each
evaluation.

FOR FURTHER INFORMATION CONTACT:

Richard B. Mieremet, Acting Evaluation
Officer, Policy Coordination Division,
Office of Ocean and Coastal Resource
Management, National Ocean Service,
NOAA, 1825 Connecticut Avenue, NW.,
Washington, DC 20235 (202/673-5100).

Dated: August 23,1990.

(Federal Domestic Assistance Catalog 11.419,
Coastal Zone Management Program
Administration)

Virginia K. Tippie,

Assistant Administrator for Ocean Services
and Coastal Zone Management
[FR Doc. 90-20461 Filed 8-31-90, 8:45 am)
BILLING CODE 3510-08

Marine Mammals; Application for
Scientific Research Permit (P77#44)

agency: National Marine Fisheries
Service, NOAA, DOC.

action: Application for Scientific
Research Permit (P77#44).

Notice is hereby given that an
applicant has applied in due form for a
scientific research permit to take marine
mammals as authorized by the Marine
Mammal Protection Act of 1972 (16
U.S.C. 1361-1407) and the Regulations
Governing the Taking and Importing of
Marine Mammals (50 CFR part 216).

1. Applicant: Dr. Howard W. Braham,
Director, Alaska Fisheries Science
Center, NMFS, NOAA, National Marine
Mammal Laboratory, 7600 Sand Point
Way. NE., Bldg. 4, Seattle, WA 98115.

2. Type of Permit' Scientific Research.

3. Number and Name of Marine
Mammals: Up to 2,600 California sea
lions [Zalopbus californianus).

4. Type of Take: The applicant
proposes to take up to 2,500 pups of
either sex (500 annually). The pups will
be captured, handled, branded, or
tagged and branded and released. Pups
will be 3-5 months old at the time of
capture. Up to 100 adult female sea lions
(up to 50 in year one, 25 in year 2, and 25
in year 3) will be captured, instrumented
with radio transmitters or
microprocessor-controlled depth
recorders, tagged, branded, given
enemas and released at the capture site
to evaluate movements and foraging
behavior of adult females during the
non-breeding season (from September to
April). An unspecified number of
California sea lions may be disturbed
associated with the types of take
specified above in addition to aerial and
ground surveys and during 9cat
collection on haulout areas. Taking will
be conducted on San Miguel Island,
California. A permit is requested for the
five-year period from September 1990
through December 1995.

Concurrent with the publication of
this notice in the Federal Register, the
Secretary of Commerce is forwarding
copies of this application to the Marine
Mammal Commission and the
Committee of Scientific Advisors.

Written data or views, or requests for
a public hearing on this application
should be submitted to the Assistant
Administrator for Fisheries, National
Marine Fisheries Service, U.S.
Department of Commerce, 1335 East
West Highway, Room 7330, Silver
Spring, Maryland 20910, within 30 days
of the publication of this notice. Those
individuals requesting a hearing should
set forth the specific reasons why a
hearing on this particular application
would be appropriate. The holding of
such hearing is at the discretion of the
Assistant Administrator for Fisheries.
All statements and opinions contained

35924

Federal Register / Vol. 55, No. 171 / Tuesday. September 4, 1990 / Notices

in this application are summaries of
those of the applicant and do not
necessarily reflect the views of the
National Marine Fisheries Service.

Documents submitted in connection
with the above application are available
for review by interested persons in the
following offices:

Office of Protected Resources. National
Marine Fisheries Service, 1335 East
West Highway, Room 7330, Silver
Spring, Maryland 20910;

Director, Alaska Region. National
Marine Fisheries Service, NOAA, 709
West 9th Street. Federal Bldg., Juneau.
Alaska 99802;

Director, Northwest Region, National
Marine Fisheries Service, NOAA, 7600
Sand Point Way, NE.. BiN C15700,
Seattle, Washington 98115; and
Director, Southwest Region. National
Marine Fisheries Service, NOAA, 300
South Ferry Street, Terminal Island,
California 90731-7415.

Dated: August 27.1990.

Nancy Foster,

Director, Office of Protected Resources.
National Marine Fisheries Service.

[FR Doc. 90-20670 Filed 8-31-90; 8:45 ami

BILLING COOE 3510-22-M

National Marine Fisheries Service,
Marine Mammals; Application for
Permit; Susan H. Shane, Ph.D. [P127D]

Notice is hereby given that an
Applicant has applied in due form for a
Scientific Research Permit to take
marine mammals as authorized by the
Marine Mammal Protection Act of 1972
(16 U.S.C. 1361-1407} and the
Regulations Governing the Taking and
Importing of Marine Mammals (50 CFR
part 216).

1. Applicant: Susan H. Shane, Ph.D,
250 Cottini Way, Santa Cruz, CA 95060.

2. Type of Permit 0 Scientific research
under the Marine Mammal Protection
Act.

3. Name: Atlantic bottlenose dolphin
(Tursiops truncatus }.

4. Type of Take and Numbers: The
Applicant is requesting to take up to 75
Atlantic bottlenose dolphin each day by
harassment. An individual dolphin may
be taken more than once (a maximum of
50 days/year/dolphin). The purposes of
the proposed research are: (1) Record
diurnal activities and correlate these
with environmental conditions; (2)
identify different types of feeding
behavior and associate these with
environmental variables; (3) observe
long-term associations between
identifiable individuals; and (4) record
apparent calving intervals of
recognizable females.

5. Location and Duration of Activity:
The requested activity would occur at
Sanibel and Captiva Islands, Florida.

The duration of the requested activity is
for a period of five (5) years.

Concurrent with the publication of
this notice in the Federal Register, the
Secretary of Commerce is forwarding
copies of this application to the Marine
Mammal Commission and the
Committee of Scientific Advisors.

Written data or views, or requests for
a public hearing on this application
should be submitted to the Assistant
Administrator for Fisheries, National
Marine Fisheries Service. U.S.
Department of Commerce, 1335 East
West Highway, Silver Spring, Maryland
20910, within 30 days of the publication
of this notice. Those individuals
requesting a hearing should set forth the
specific reasons why a hearing on this
particular application would be
appropriate. The holding of such a
hearing is at the discretion of the
Assistant Administrator for Fisheries.

All statements and opinions contained
in this application are summaries of
those of the Applicant and do not
necessarily reflect the views of the
National Marine Fisheries Service.

Documents submitted in connection
with the above application are available
for review by appointment at the
following offices:

Office of Protected Resources, National
Marine Fisheries Service, 1335 East
West Highway, room 7324, Silver
Spring, MD 20910 (301 427-2289);
Director, Southwest Region, National
Marine Fisheries Service, 300 South
Ferry Street, Terminal Island. CA
90731 (213 514-6196); and
Director, Southeast Region, National
Marine Fisheries Service, 9450 Roger
Boulevard, St. Petersburg, FL 33702
(813/893-3141).

Dated: August 27,1990.

Nancy Foster,

Director ; Office of Protected Resources,
National Marine Fisheries Service.

[FR Doc. 90-20671 Filed 8-31-90; 8:45 am|

BILLING CODE 3510-22-11

Permits; Marine Mammals; Correction

agency: National Marine Fisheries
Service (NMFS), NOAA, DOC
action: Marine Mammals; Notice of
correction.

summary: This notice corrects
Modificaiton No. 1 to Permit No. 595
(P112F) (notice document 90-19329) that
was published in the Federal Register on
August 17.1990 (55 FR 33742), paragraph
5 is revised as follows:

“5. The authority to acquire the marine
mammals authorized herein shall
extend from the date of issuance
through December 31.1993. . .
Dated: August 27.1990.

Nancy Foster,

Director, Office of Protected Resources,

National Marine Fisheries Service.

[FR Doc. 90-20672 Filed 8-31-90; 8:45 ara[

BILUNG CODE 3510-22-41

COMMISSION ON THE BICENTENNIAL
OF THE UNITED STATES
CONSTITUTION

[CFDA No. 90.001]

Invitation for Applications for New
Awards for FY 1991 Bicentennial
Educational Grant Program

agency: Commission on the
Bicentennial of the United States
Constitution.

action: Notice inviting applications and
providing application forms for
Bicentennial Educational Grant Program
for fiscal year 1991.

summary: The Commission on the
Bicentennial of the United States
Constitution announces its application
deadline for FY 1991 funding from its
Constitution Bicentennial Educational
Grant Program. The Commission is
soliciting grant applications for the
development of instructional materials
and programs on the Constitution and
Bill of Rights which are designed for use
by elementary or secondary school
students. Thi9 grant program notice
informs all interested individuals and
organizations about the closing date for
the receipt of applications for funding.
The application conditions are based on
the law and regulation which contain
the key requirements for all applicants
to follow in seeking funding from the
Commission.

dates: The dosing for the receipt of
applications in the FY 1991 competition
is November 19.1990. Applications
delivered by hand must be received at
the offices of the Commission no later
than 5:00 p.m. on November 19.1990.
Applications by mail must be
postmarked no later than November 19.
1990.

ADDRESSES: For further information
contact:

Anne A. Fickiing, Associate Director of
Educational Programs. Commission on
the Bicentennial of the U.S.
Constitution. 808 17th Street, NW„
Suite 800, Washington. DC 20006, (202)
653-5110.

Federal Register / Vol. 55, No. 171 / Tuesday, September 4. 1990 / Notices

35925

SUPPLEMENTARY INFORMATION: The

objective of this program is to help
elementary and secondary school
teachers develop a better understanding
of the history and development of the
U.S. Constitution and Bill of Rights and
to provide them with materials and
methods so they will become more able
to teach the Constitution to young
learners. Programs designed to affect
students directly are also encouraged.
Programs designed for adult learners in
an elementary or secondary school
environment are also eligible. The
Commission continues to encourage
proposals from non-traditional
educational organizations and those
concerned with ethnic and minority
interests, people for whom English is a
second language, and other special
interest organizations such as those
concerned with the learning disabled
and the physically handicapped.

Available funds anticipated:
Approximately $1.8 million.

Estimated range of awards: $3,000-
$125,000.

Estimated number of awards: 25-35.

Project period: No longer than 16
months, beginning no later than
September 1.1991.

Priority areas for funding: The
Program Announcement and Final Rule
governing the Bicentennial Educational
Grant Program were published in the
Federal Register on August 14,1987.
Specifically, the Commission encourages
proposals which focus on themes
paralleling those of the Commission’s
five-year plan and the development of
the three branches of government. In
1991 Educational Grant Program, the
Commission’s focus is on the Bill of
Rights and subsequent Amendments.

Limited funding is available for
expanding, replicating, or continuing
highly successful edcuational programs
which effectively link the Constitution to
civic literacy and responsibility today. A
significant aspect of any such program
would be the inclusion of a co-curricular
activity and/or community involvement
component. The Commission encourages
applications for funding these
exemplary projects from schools, school
districts, or organizations. A well-
developed dissemination plan should be
included in any proposal for funding
under this initiative.

Selection criteria: The Commission
has developed the following criteria as
general guidelines for judging all project
proposals:

1. The project is designed to
strengthen teachers' capacity to
understand and teach the Constitution,
its antecedents, provisions, structure,
and history, while benefitting students

in an academically sound way
appropriate for the age group toward
which it is directed. (15 points)

2. The project has potential to make
effective and appropriate use of existing
and proven curricular materials,
including those made available through
Commission sponsorship and the
Bicentennial Educational Grants
Program. (5 points)

3. The project is cost-effective in that
expenditures are reasonable and
appropriate for the scope of the project.
(5 point)

4. The project must demonstrate the
potential for affecting a much wider
audience than the immediate project
participants. (10 points)

5. The project represents an
improvement upon existing teaching
methods. (5 points)

6. Applicants have the capacity to
carry out the project as evidenced by:

a. Academic and administrative
qualifications of the project personnel;

b. Quality of project design;

c. Soundness of project management
plan. (10 points)

The decision to award grant funding is
solely within the discretion of the
Commission based upon its judgment of
how best to fulfill the statutory purposes
to the grant program.

Applicable regulations: 45 CFR 2010
as published in the August 14,1987
Federal Register (52 FR 30582). The
Commission’s program announcement
was also published together with the
grant regulation.

Interested applicants are invited to
call or write to the Commission for a
copy of the printed version of the
program announcement and application
forms.

Authority: Title V of Pub. L. 99-194: 45 CFR
part 2010.

Herbert M. Atherton,

Deputy Staff Director and Director of
Education.

[FR Doc. 90-20648 Filed 8-31-90: 8:45 ami
BILLING CODE 634O-01-N

COMMODITY FUTURES TRADING
COMMISSION

Authorization of the National Futures
Association to Implement Phases II
and 111 of a Pilot Program for the Direct
Electronic Entry of Registration Data
With Respect to Applicants for
Registration as Associated Persons of
Specified Registrants

agency: Commodity Futures Trading
Commission.

action: Notice and Order authorizing
the National Futures Assocaition (NFA)
to implement certain phases of a pilot

program that would allow specified
registrants to enter registration data
electronically into the NFA computer
system with respect to the associated
person (AP) applicants and APs of those
registrants and allow NFA to grant
temporary AP licenses on the basis of
such electronic filings.

summary: Section 8a(l) of the
Commodity Exchange Act (Act)
provides, in part, that the Commodity
Futures Trading Commission
(Commission) “may grant a temporary
license to any applicant for registration
with the Commission pursuant to such
rules, regulations, or orders as the
Commission may adopt * * * V* 7 U.S.C.
12a(l) (1988). The Commission is
authorizing NFA to implement Phases II
and III of a pilot program designed to
expedite the temporary licensing
process. Under the expanded pilot
program, specified registrant sponsors
would electronically enter into NFA’s
registration computer system all of the
information required to be filed on Form
8~R (application for registration), Form
3-R (supplemental statement to
application for registration). Form 8-T
(notice of termination) or Form U-5
(uniform termination notice for
securities industry registration) for all
AP applicants. APs and branch office
managers 1 of such sponsors and of any
introducing brokers guranteed by the
sponsors and for whom the sponsors
have assumed registration
responsibilities. The pilot program is
intended to demonstrate the utility of
permitting registrants to enter
registration data concerning their
sponsored AP applicants and APs
directly into the NFA computer system
via computer terminals in those
registrants’ offices and to initiate the
processing of such data by the NFA
computer for the purpose of granting
temporary licenses. 2

The pilot program procedures are
designed to expedite the temporary
licensing process by allowing direct
input of data and thereby permit
applicants to act as APs sooner than if
their applications were mailed or
delivered to NFA and the data entered
into the NFA computer by NFA
personnel. The direct entry program thus
is fully consistent with the primary
purpose of the temporary license

1 Brunch office managers are APs but also are
required to disclose their stutus as branch office
managers on Forms S-R. 3-R and S-T.

* A temporary AP license allows an eligible
applicant for registration to work for his sponsoring
firm without waiting until a full f tness check is
completed. The applicant may not be granted AP
registration until the fitness check is complete.

35326

Federal Register / Vol. 55, No. 171 / Tuesday, September 4, 1990 / Notices

procedure—to enable apparently
qualified applicants to begin work as
soon as possible prior to completion of a
full fitness check. 3 The program will
also permit speedier updates of
registration information and
terminations with respect to APs of
participating firms during Phase III, and
may improve registration processing
productivity overall by relieving some of
NFA’s current data entry burden.

The direct entry procedure also is
expected to reduce or eliminate
registration processing delays due to
data omissions because the direct entry
procedures use a computer screen that
will disclose any such omissions
immediately to the sponsor and permit
immediate correction of data. Final
registration determinations will continue
to require the submission of Form 8-R,
fingerprint cards and signed sponsor
certifications, and they will also require
full fitness determinations. At the
completion of the pilot program, NFA
will request Commission review of the
program and, if appropriate, request a
further Commission order approving
extension of the program to other
registrant sponsors of APs. The
Commission contemplates that it would
consider amendments to Commission
and NFA registration rules to make
direct entry generally available only
after a full evaluation of the operation
and results of the pilot program.

SUPPLEMENTARY INFORMATION:

I. Background

A. The Direct Entry Program

NFA has noted that the entry of data
into its computer system is a labor
intensive operation which processes
approximately 15,000 applications
annually. 4 * To expedite the registration
processing for individual AP applicants,
NFA has proposed a program that, in its
later phases, would allow the direct
entry of individual registration data into
NFA’s registration computer system by
the sponsors of APs and the automatic
electronic granting of temporary licenses
for APs following such direct entry of
registration data. Sponsors would,
however, continue to file with NFA the
required paper registration forms,
fingerprint cards and sponsor
certifications, which would be matched
against directly entered data that is
material to the granting of a temporary
license and used to complete the fitness

a 49 FR 8208. 8210 (March 5.1984).

4 Petition for an Order Granting National Futures

Association Permission to Conduct a Pilot Program

for the Direct Entry of Registration Data by a

Sponsoring Registrant, Submitted by National

Futures Association, January 5.1989 (Petition), p. 2.

processing for final registration
determinations.

NFA’s pilot program for the direct
entry of registration data consists of
three phases. Phase I of the pilot
program began on November 10,1987
when, with the concurrence of the
Commission's Division of Trading and
Markets (Division), two futures
commission merchants (participating
firms) 6 were provided with direct
inquiry access via computer terminals at
the firms to NFA’s computer registration
database [Le., the Membership
Registration Receivables System or
MRRS) for all registration information to
which they are entitled under NFA
registration rules 701 (b) and (c). e The
Division subsequently permitted nine
additional participating firms in Phase I
of the pilot program. 7 Such inquiry
access by the participating firms not
only familiarized the firms with MRRS
inquiry procedures but also freed NFA
personnel from otherwise directly
handling the firms’ inquiries.

NFA now seeks Commission
authorization to implement Phases II
and III of the pilot program, which will
allow the participating firms to enter AP
registration data into the NFA computer
system and receive temporary license
determinations immediately following
entry and computer processing of the
data. Assuming that the experience
gained during the pilot program
demonstrates the effectiveness and
integrity of the direct entry procedures,
NFA will petition the Commission to
make the program generally available to
registrant sponsors of APs on a
permanent basis. 8

These two firms were Merrill, Lynch, Pierce,
Fenner & Smith, Inc. and Stotler and Company. See
Division letter dated November 10,1987 to Daniel J.
Roth at NFA.

• Such information generally consists of public
information regarding all registrants and all
registration information relating to a firm’s own
employees and prospective employees.

1 These firms are Shearson Lehman Brothers, Inc.
(see Division letter dated December 23.1987 to
Daniel J. Roth at NFA); Dean Witter Reynolds, Inc.,
Geldermann, Inc., R.J. O’Brien, Inc. and Prudential
Bache Securities, Inc. (see Division letter dated
January 8.1990 to Daniel J. Roth at NFA); Coldinan
Sachs 8 Co. and Cargill Investor Services, Inc. (see
letter dated March 19.1990 from Daniel J. Roth at
NFA to Division); and BT Futures Corp. and Brokers
Resource Corp. ( see letter dated June 15.1990 from
Daniel J. Roth at NFA to Division).

* It is anticipated that new participating firms
would undergo a six-month probationary period
during which the review and processing procedures
would be the same as those described for Phase II
and 111 of the pilot program. NFA contemplates that
it will compare each Form 8-R when it is received
and the corresponding electronic filing only for each
item directly material to temporary license
eligibility (i.e., the applicant’s name and signature,
the sponsor’s certification, receipt of fingerprint
card and all questions relating to disciplinary
history). Final registration determinations would

D. Delegation of Registration Functions

The NFA has been authorized by the
Commission to process applications for
registration, conduct fitness checks and,
where appropriate, grant registrations
under Commission oversight. See
sections 8a(10) and 17(o) of the Act (7
U.S.C. 2a(10) and 21(o) (1988)). The
registration functions which NFA is
authorized to perform generally fall into
two categories—registration processing
and fitness assessment. Registration
processing consists of receipt and
handling of applications, data entry,
handling of fees, and other
administrative aspects of registration.
Fitness assessment consists of the
review of applications to determine
whether registration is consistent with
the Act and Commission regulations,
which establish disqualifications from
registration based upon statutorily
specified factors such as certain
criminal convictions and civil
sanctions.®

The Commission has authorized NFA
to process and, where appropriate, grant
applications for registration under the
CEA for futures commission merchants
(FCMs), introducing brokers (IBs),
commodity pool operators (CPOs),
commodity trading advisors (CTAs),
leverage transaction merchants (LTMs),
the APs of such registrants, and floor
brokers; to process and, where
appropriate, grant applications for
temporary licenses for all categories of
APs; and to deny, condition, suspend,
restrict or revoke the registrations of all
registrant categories other than floor
brokers. 10

continue to be made by NFA after review of the
results of fitness inquiries, including the FBI
fingerprint reports and the SEC check.

• The circumstances which give rise to statutory
disqualifications from registration are set forth in
sections 8a(2) and 8a(3) of the Act (7 U.S.C. 12a{2)
and 12a{3) (1988)). The more serious grounds for
statutory disqualification from registration are set
forth in section 8a(2), including, among others, any
prior revocation of registration or a refusal of
registration within the preceding five years,
injunctions relating to futures or securities
activities, and felony convictions within the
preceding ten years for offenses related to futures or
securities transactions or embezzlement, theft, fraud
and similar types of wrongdoing. Grounds for
statutory disqualification under section 8a(3) of the
Act include certain misdemeanor convictions,
certain felony convictions which are more than ten
years old, or a plea of nolo contendere to criminal
charges of felonious conduct.

10 48 FR 15940 (April 13.1983) (authorizing NFA
to receive and process new applications for
registration as an IB or an AP of an IB); 48 FR 35158
(August 3.1983) (authorizing NFA to grant
registration for IBs and their APs): 49 FR 8228
(March 5,1984) (authorizing NFA to process and
issue temporary licenses to applicants for
registration as APs of IBs): 49 FR 39593 (October 9.
1984) (authorizing NFA to process and grant

Continued

Federal Register / VoL 55. No. 171 / Tuesday, September 4. 1930 / Notices

35927

C. Registration Processing and Fitness
Assessments

In summary, the steps taken to
process a registration application and
evaluate the applicants Fitness are the
following. A firm seeking to register an
AP must sponsor the applicant, who
applies through the Firm for a temporary
license as an AP. 11 Sponsorship
requires the sponsoring Firm to verify the
employment and educational history of
the applicant for registration for the
preceding three years. A sponsoring Firm
sends an applicant's Form 8-R. ia
registration fee, 13 fingerprint card and
sponsor's certification to NFA. When
the NFA Registration Unit receives the
application, it enters the data on the
application form into MRRS, NFA’s
computer registration database.

The MRRS system automatically
prints a temporary AP license or AP
registration when all required conditions
are met the application materials
are complete and there are no fitness-
related problems on the face of the
application or in the system. Before
issuing a temporary license. MRRS First
scans the application data to determine

applications for registration of FCMs, CPOs, CTAs
and their APs and to issue temporary licenses to
eligible APS): 50 FR 34885 (August 2S. 19851
(authorizing NFA to deny, condition, suspend,
restrict or revoke the registration of any person
applying for registration or registered as an FCM.

IB. CPO. CTA, or an AP of such entities); St FR
25929 (July 17.1988) and 51 FR 34490 (September 29.
1986 (authorizing NFA to process and grant
applications for registration as a floor broker); 51 FR
45749 (December 22.1968) (authorizing NFA to grant
temporary licenses for guaranteed IBsh 53 FR 8428
(March 15.1988) (authorizing NFA to process
withdrawals from registration): 54 FR 19594 (May 8.
1989} (authorizing NFA to process and grant
applications for registration as an LTM or AP of an
LTM and to grant temporary' licenses to APs of
LTMs): and 54 FR 41133 (October 5.1989)
(authorizing NFA to take adverse actions against
LTM9 and their APs. as well as against applicants
for registration in either category ).

11 AP sponsors must be registered in the
appropriate capacity and must employ the
sponsored individual. Temporary licenses may be
issued to qualified persons at the time of initial
employment in the industry- as an AP and in the
event of subsequent transfer to and employment by
another sponsoring firm. Temporary licenses may
also be issued to a guaranteed IBM which has
entered into a guarantee agreement with a FCM
prior to clearance of the IB’s registration.
Commission Rules 3.40 and 3.41.17 CFR 3.40 and
3.41 (1989). The only firms eligible to receive
temporary licenses are guaranteed IBs.

'• Form 8-R requires an applicant to disclose
personal information (including name and address
and. on a voluntary basis, date and place of birth
and social security number), employment and
residential history for the preceding ten years,
educational history and disciplinary history. The
applicant and the sponsor must certify the
application, and the sponsor must verify the
applicant's employment and educational histoiy for
the preceding three years.

13 Some firms have funds on deposit with NFA
against which fees are deducted as applications are
rereived by NFA.

the completeness of the application and
whether the applicant is eligible for a
temporary license. A "clean" application
that does not implicate any of the Five
following disqualifying factors will
result in issuance of a temporary
license, allowing a salesperson to work
as an AP prior to completion of the
Federal Bureau of Investigation (FBI)
and Securities and Exchange
Commission (SEC) checks. Factors that
will prevent issuance of a temporary
license to an AP are: (1) An incomplete
application; (2) a "YES" answer to any
of the disciplinary history questions on
the application (questions 14 through
18). often referred to as self-declared
derogatory information (SDD1); 14 (3) a
conditional, suspended or revoked
registration; (4) a "hold" in the system
indicated by the message.
"INVESTIGATION IN PROCESS;" of (5)
failure to provide proof of successful
completion of the National Commodity
Futures Examination. If none of the
above factors exist, a temporary license
is issued to the applicant. In addition to
the above five factors which prevent
issuance of a temporary license, other
factors will prevent MRRS from
converting a temporary AP license to an
AP registration. These could include the
pendency of an FBI fingerprint check or
SEC name check or the detection of
derogatory information through the FBI
Fingerprint check or SEC name check.

If the application reflects SDDI, the
applicant has a conditional, suspended,
or revoked registration, there is a
registration hold on the applicant s
registration, or the FBI or SEC checks
disclose relevant derogatory
information, NFA registration staff
conducts further investigations and
reviews of the application. Proceedings
to deny or condition registration are
initiated by a letter from the NFA
Director of Compliance, or the Director’s
designee, which provides the applicant

14 Registration application Form 8-R for
individuals (and Form 7-R for firms) contains
questions that require information to be disclosed
about an applicant’s or registrant’s past bistory that
would generally be a basis for disqualification from
registration under Sections 8a(2) or 8a(3) of the Act.
In the case of an individual who is currently
registered as an AP or who has terminated his
registration as an AP within the preceding sixty
days, a "YES" answer that relates to a matter than
already has been disclosed in connection with a
previous application for registration, if such
registration was granted, or that was disclosed
more than thirty days previously in an amendment
to such application, will not prevent issuance of a
temporary license. (Commission Rules 3.12(dXll(vi).
3J6(d)(l)(vi), and 3.16(dKlHvi) (17 CFR
3.12(dUl)(vi). 3,18(d)91)(vi). and 3.18(dKlUvi)) (1909).
A firm applying for a temporary license as an IB
which has a “YES'' answer to a disciplinary history
question on Form 7-R is also barred from receiving
a temporary IB registration.

an opportunity to withdraw the
registration application or to request
further consideration.

II. Phases II and III of the Pilot Program

A. Phase U

Phase II of the pilot program is
intended to familiarize the participating
firms with the procedures for the direct
entry of registration data into NFA’s
registration computer system and to
provide NFA an opportunity to monitor
the accuracy of data entered into MRRS
by participating firms. NFA believes that
given the limited nature and purpose of
Phase U. that portion of the program
should not be lengthy. However, NFA
has represented that Phase II will last at
least ninety (90) days and that
participating firms 15 will not be
allowed to engage in Phase III until
Commission staff has been given an
opportunity to review Phase II
performance and to interpose any
objection to progression to Phase IIL

During Phase II, the participating firms
will enter the data contained on those
submitted forms directly into NFA’s
computer system through terminals
located in their offices. The participating
firms would continue to file Forms 8-R,
3-R, or 8-T relating to their APs or AP
applicants and NFA would process the
applications as previously described.

Direct data entry by participating
firms w f ould be accomplished by the
firm following instructions provided by
MRRS on the computer terminal screen
which request the entry of information
corresponding to the information
requested on the relevant registration
form. The MRRS program determines if
the applicant already has an NFA
identification number (and if not, will
assign one), advises the firm of any
omissions in data entry, allows the firm
to correct such omissions and
determines if the proposed registration
would result in a prohibited multiple
affiliation. 1 ®

l% See letter dated July 17.1990 from Daniel J.

Roth at NFA to Division. Those firms will be the
same firms which participated in Phase I of the pilot
program, except for StotJer and Company.
Additjprud firms wiU be added only with the
approval of the Division of Trading and Markets.

*• See Petition at Exhibit A. The participating firm
checks the MRRS system to determine if the
applicant already has an NFA ID number by using
the applicant's social security number. If the
applicant’s social security number is not in the
MRRS system, an additional check using the
applicant’s name is made to determine if that name
is located in the MRRS system but not identified by
social security number. This further step must be
performed before an ID number la assigned to
assure that all holds in the MRRS system are
reviewed carefully, including holds with respect to
individuals whose social security numbers are
unknown.

35928

Federal Register / Vol. 55, No. 171 / Tuesday, September 4, 1990 / Notices

Upon completion of data entry by a
participating firm, and after receipt of
the corresponding registration form filed
by such firm, NFA personnel will
compare all of the information
contained in the form with the data
entered directly into MRRS by the firm.
NFA personnel will make any necessary
corrections and then direct MRRS to
process the application. It should be
noted that during Phase II only NFA
personnel will be authorized to instruct
MRRS to process an application and, if
appropriate, grant a temporary
license. 17 No temporary license will be
issued in Phase II until the required
paper forms are received and reviewed
by NFA. Where appropriate, MRRS will
transmit notice to the participating firm
via a computer terminal that a
temporary license has been granted. 18 If
the application is deficient, if the
applicant does not qualify for a
temporary license, or if the applicant
does not appear to qualify for
registration, the application will be
given a pending status. Otherwise, the
application for final registration will be
processed by NFA personnel as
previously described.

NFA has represented that it will
provide the Commission with statistics
regarding the accuracy of data enty and
the timeliness and completeness of
required Form 8-R, 3-R or 8-T filings.
Implementation of Phase III of the pilot
program will not occur until Commission
staff have had an opportunity to review
these statistics and to raise any
concerns or objections deemed
appropriate based upon the Phase II
data and other experience.

B. Phase III

During Phase III, which will last a
minimum of six months, participating
firms will continue to enter AP
registration data directly into MRRS and
to file the appropriate 8-R, 3-R, and 8-T
forms with NFA. NFA also will continue
to compare all of the information
contained on the submitted registration
form with the corresponding data
entered directly by the firm in MRRS. 19

lT See Petition at Exhibit A. n. 1, p. 3.

18 The system will generate a letter to the
sponsoring firm advising it of the registration status
that has been granted. A participating firm may
elect to have all approval and deficiency letters
transmitted directly to a printer in its offices. In any
event, the system will generate a file copy and a
microfiche copy of NFA to be maintained by NFA.
See Petilion at Exhibit A. p. 3 and p. 5.

19 The results of these comparisons will be
included in a statistical report which NFA will
provide to the Commission on a monthly basis.

However, unlike in Phase II, in Phase III
participating firms will be permitted to
enter a command via computer terminal
instructing the MRRS computer to issue
a temporary license prior to NFA's
receipt of the required Form 8-R when
the data directly entered into MRRS by
the participating firm indicate that the
AP applicant is eligible for a temporary
license. 20 Specifically, a temporary
license would be granted whenever the
data entered directly by the applicant’s
sponsor indicate that: (1) The
application form is complete, has been
signed by both the applicant and his
sponsor and has been mailed or will be
mailed to NFA the same day [i.e,, the
day on which the firm directs MRRS to
process the application); (2) the
applicant’s sponsor has certified that the
application form mailed to NFA is
accompanied by a legible fingerprint
card or an alternative acceptable under
NFA registration rules 21 and by
evidence that NFA proficiency
requirements have been met; 22 (3) the
information filed electronically by the
firm indicates that there are no “YES”
answers to any of the disciplinary
history questions; and (4) there is no
registration hold on that applicant.

Thus, in Phase III, temporary licenses
could be granted by MRRS upon entry of
a command by the participating firm to
process the application in reliance upon
the data entered by the participating

80 Commission Rule 3.40,17 CFR 3.40 (1980)
provides that a temporary license may be issued
upon the contemporaneous filing with the NFA of:

(a) A Form 8-R, properly completed in accordance
with the instructions thereto, the Disciplinary
History portion of which contains no "Yes 0 answers
indicating that the applicant may be subject to a
statutory disqualification under sections 8a(2)
through 8a(4) of the Act:

(b) The fingerprints of the applicant on a
fingerprint card provided by the National Futures
Association for that purpose: and

(c) The sponsor's certification required by
9 3.12(c), § 3.16(c). or 9 3.18(c) as appropriate.

81 NFA Registration Rule 209(a) accepts as a
substitute the submission of a photocopy of a
fingerprint card which has been submitted to the
FBI if the processing and identification has been
completed satisfactorily by the FBI not more than
ninety days prior to the filing of such photocopy
with NFA. Alternatively. NFA Rule 209(a) deems
the fingerprint filing requirements met if the
applicant has been registered with NFA in any other
capacity within the preceding ninety days.

88 NFA Bylaw 401(b) provides that no person may
be associated with an NFA member [i.e., as an AP)
unless the person is registered with NFA as an
associate. NFA Registration Rule 401 requires as a
condition for associate registration evidence that
the applicant has taken and passed the National
Commodity Futures Examination no more than two
years prior to the date the application is received by
NFA, has been duly registered in another capacity
within that two-year period, or is registered with the
National Association of Securities Dealers as a
general securities representative and the applicant's
activities will be limited to the solicitation of funds
for commodity pools or referring clients to an AP
who has satisfied the proficiency requirements.

firm and before NFA has received the
firm’s written Form 8-R submission.

Such automatic processing and issuing
of temporary licenses would be
consistent with current procedures,
which permit the issuance of a
temporary license on the basis of no
self-declared derogatory information or
registration hold, and permit an
applicant to begin work as an AP more
quickly than under current procedures.
Updates (Form 3-R) and terminations
(Form 8-T) will also be processed more
quickly during Phase III, subject to NFA
review and monitoring.

If the applicant’s Form 8-R, fingerprint
card of proof or successful completion of
the proficiency examination have not
been received by NFA within five
business days of the date the original
application information was processed
by MRRS, NFA will terminate the
temporary license immediately and
notify the applicant and sponsoring
firm. 23 Moreover, once the Form 8-R has
been received by NFA. all information
on the Form 8-R will be compared to the
information that the firm previously
entered into MRRS. If such comparison
discloses different information from that
entered directly by the sponsoring firm
that indicates that the applicant is not
eligible for a temporary license, for
example, derogatory information
indicating a statutory disqualification,
NFA will terminate the temporary
license. As under current procedures
discussed earlier, subsequent adverse
FBI fitness reports or SEC checks
revealing disqualifications not
previously disclosed will also result in
termination of the temporary license
upon five days notice.

C. Requirements of Participating Firms

The obligations of participating firms
will be established by written
agreement. 24 Among other things, the
draft agreement requires that
participating firms (1) enter in NFA’s
MRRS all information required to be
filed on Forms 8-R, 3-R and 8-T for all
APs of the participating firm and of the
participating firm’s guaranteed
introducing brokers for whom the
participating firm has assumed
registration responsibilities; (2) mail by
first class mail or hand deliver to NFA
on the day that the firm enters a

88 NFA represents that MRRS has been
programmed to monitor for late filings. NFA also
states that notice of termination will be provided to
the sponsor by telephone whenever possible and
also by written notice through overnight mail.

84 Agreement For Firm Direct Entry Privileges to
the Membership Registration Receivables System of
the National Futures Association (Agreement).
Exhibit B to Petition.

Federal Register / Vol. 55, No. 171 / Tuesday, September 4, 1990 / Notices

35929

command in MRRS to process an
application, the corresponding
registration form with all required
attachments; 25 (3) adopt and enforce
procedures to ensure the integrity and
confidentiality of all individual filings;
and (4) make its data entry personnel
available for testimony in court, before
the Commission, NFA or any contract
market, in regard to the authenticity,
integrity or accuracy of any paper or
electronic Filing covered by the
agreement.

The agreement also requires the
participating firm to make the following
"special” certifications as part of its
electronic filing (which reflect the
requirements of Commission Rule
3.12(c)(l)(iMiv)):

—the applicant or registrant has signed the
Form 8-R;

—the sponsor has signed the sponsor's
certification section of the Form 8-R or 3-R,
or the former sponsor has signed the Form
8—T (or U—5);

—the Form 8-R is accompanied by a legible
Fingerprint card (or alternative acceptable
under NFA registration rules or
Commission regulations); and
—the Form 8-R is accompanied by proof of
successful completion of the proficiency
requirements.

The agreement further provides that
the entry of an instruction by the
participating firm to NFA to process an
electronic filing constitutes a
certiFication by such firm that the
electronic filing accurately reflects the
information on the paper filing. The
participating Firm also acknowledges
that the willful submission of a false
special certification constitutes cause
for denial, suspension or revocation of
the firm’s registration under sections
8a(2) and 8a(3) of the Act. 26

The agreement makes clear that NFA
is not required to grant temporary
licenses on the basis of an electronic
filing but may do so where a submission
is complete ;.e. f satisfies the standards
set forth in Commission Rule 3.40 for
issuance of temporary licenses.
Temporary licenses granted to
applicants on the basis of electronic
filings will terminate under the
circumstances provided in Commission

ls The date for processing may differ from the
date of initial data entry. This could occur if the
MRRS screen notes the need for further information
which the firm elects to enter at a later date.

*• Section 6(b) of the Act (7 U.S.C. 9 (I960)) also
makes it unlawful for any person to willfully make
any false or misleading statement of a material fact
in any registration application or to willfully omit to
state in any such application any material fact
which is required to be stated therein. Violators are
subject to a civil penalty of not more than $100,000
for each violation, suspension (not to exceed six
months) or revocation of registration and trading
prohibitions.

Rule 3.42. 27 In addition, the agreement
provides that temporary licenses
granted on the basis of an electronic
filing shall terminate immediately upon
notice to the participating Firm that the
paper filing was not received by NFA
within Five business days after the
electronic filing or that the paper Filing
contains information different from the
information in the electronic Filing that
indicates that the applicant does not
qualify for a termporary license. Such
notice may be given orally by telephone,
by electronic transmission to a terminal
on the participating firm’s premises, by
United States mail, by hand delivery, or
by any other standard means of
conveyance (including a generally
recognized ovemght delivery service).

D. Statistical Information

In order to provide an objective basis
for evaluation of the pilot program, NFA
has undertaken to provide the
Commission on a monthly basis with
certain statistics classified by the type
of filing. For each Form 8-R filing, 28
NFA will maintain data on the number
of electronic and paper filings resulting
in the issuance of temporary licenses,
the number of applications given a
"pending” status due to the
incompleteness of the application, and
the number of applications given a
"pending” status because they do not
satisfy the standards for issuance of a
temporary license. 29

Comparative statistics also will be
maintained with respect to the time
required to grant temporary licenses to
APs of participating firms and to APs of
nonparticipating firms. For each type of
Form 8-R Filing, NFA will compile
statistics on the average time before the
temporary license is granted and, during
Phase III, on the number of temporary
licenses that are terminated by NFA. 30

97 Rule 3.42 provides that a temporary license
shall terminate five days after service upon the
applicant of a notice by the Commission pursuant to
Rules 3.52 or 3.00 that the applicant may be found
subject to a statutory disqualification from
registration, or immediately upon termination of the
association of the applicant with the applicant's
sponsor or immediately upon the withdrawal of the
registration pursuant to Rule 3.40(d) (failure to
provide requested information).

*• The statistics will reflect filings from new
applicants for AP registration as well as from
existing APs transferring to a new sponsoring firm
pursuant to special temporary licensing procedures
set forth in Commission Rule 3.12(d), 17 CFR 3.12(d)
(1989).

** See discussion in part I.C (Registration
Processing and Fitness Assessments) concerning
factors preventing the issuance of a temporary
license.

90 These statistics will include terminations of
any temporary licenses granted during Phase li
based on adverse fitness information received
during Phase 111.

Phase III statistics concerning temporary
license terminations for participating
firms will be divided into three
categories: terminations based on failure
to receive the necessary follow-up
filings within Five business days,
terminations based on discrepanices
between the electronic filing and the
paper filing that are material to
determinations concerning issuance of
temporary licenses, and terminations
based on information uncovered by the
Fitness check that was not reported on
the paper filing.

The following additional statistics will
be maintained for electronic Filings to
facilitate evaluation of data entry
reliability:

(1) The average time between the electronic
filing and NFA’s receipt of the complete
paper riling;

(2) The number and type of material
discrepancies between the electronic filing
and paper filings; and

(3) The number of filings containing non¬
material discrepancies between the
electronic and paper filings.

Finally, NFA will prepare Firm-by-firm
statistics relating to data reliability and
to temporary license terminations due to
late paper filings or material
discrepancies between the electronic
and paper Filings.

III. Discussion

The direct entry program essentially
would permit substitution on a
temporary basis 31 of electronically
transmitted registration data for paper
filings of such data and transfer the
burden of clerical entry of such data into
the MRRS computer system from NFA to
the sponsoring firm. Under both the
direct entry program and the current
processing system, such registration
data would be supplied by the applicant
and reviewed and submitted by the
applicant’s sponsoring firm. The
sponsoring firm is required to certify the
accuracy and completeness of all such
information. As under current
procedures, the direct entry program
would allow the automatic processing
and granting of temporary licenses
based upon the registration information
and certiFications provided by the
sponsoring firm prior to completion of a
full fitness check. Thus, the electronic
transmission of data and the initiation
of MRRS computer processing for
temporary license applications by the
sponsoring firm would change the
process by which data are conveyed to
NFA but not the content of the data on
which temporary licenses are granted.

91 All direct entry electronic filings will be
followed by the necessary paper filings.

35930

Federal Register / Vol. 55, No. 171 / Tuesday, September 4, 1990 / Notices

Ail determinations concerning an
applicant’s final registration status will
continue to be made by NFA personnel
after review of FBI fingerprint reports
and other fitness checks. Nonetheless, in
order to assure that the direct entry
program will not compromise the
integrity of the Commission's
registration program and records.
Commission staff have reviewed a
number of specific issues concerning the
potential impact of the proposed pilot
program upon fitness screening and the
registration process.

A Thoroughness of Fitness Screening

Currently, applicants and their
sponsors generate the application
information used by NFA to make
registration determinations. Under the
direct entry program, applicants and
their sponsors will continue to supply
the information required by the
registration forms and will continue to
file applicant fingerprint cards. Final
registration determinations will continue
to be based upon NFA's analysis of the
information generated by the applicant
and sponsor, results of fingerprint
checks and other fitness checks.

Although temporary licenses will be
granted automatically following the
entry of a command by the sponsor
through its computer terminal for MRRS
to process the application on the basis
of information filed electronically, the
procedure does not differ substantively
from current practice in which
temporary licenses are granted on the
basis of self-declared information and
review of the registration hold file for
any disqualifying matter. The computer
program used to process the temporary
licenses will employ the some screening
questions currently used by NFA in
determining whether to issue temporary
licenses. The fact that fingerprint cards
will be received by NFA after a
temporary license has been issued does
not represent a material change from
current procedures, which provide for
the granting of a temporary license prior
to completion of the full fitness check.
The temporary licensing procedure was
intended to allow persons whose filings
indicated that they were not subject to
statutory disqualifications under
Sections 8a(2) or 8a(3) of the Act to
begin temporary employment pending
completion of the full fitness check. 82
Thus, the direct entry program will not
change the standards governing the
granting of temporary licenses or the
scope of the data upon which such
licenses are granted.

** See H.R. Rep. No. SOS (Par! 1). 07th Cong.. 2d
Boss. 50 (1082).

B. Integrity of the Commission's
Registration Records

By previous orders the Commission
has delegated to NFA the responsibility
to act as the official custodian of the
Commission’s registration records for
futures commission merchants,
introducing brokers, commodity pool
operators, commodity trading advisors,
leverage transaction merchants, the
associated persons of the foregoing, and
floor brokers. 88 In those orders, NFA
was also delegated the responsibility to
certify as to the maintenance,
authenticity and completeness of those
registration records. NFA undertook to
provide all such certifications, affidavits
and testimony necessary to authenticate
the records and the information
contained therein. 84 Rules and
procedures for preparing registration
record certifications were adopted by
NFA and approved by the Commission
on November 15,1984, and November
29,1984, respectively.

Under the direct entry program, both
the data directly entered into MRRS by
the participating firm and the
subsequently filed Form 8-R, 3-R, or 8-T
will constitute registration records
maintained on behalf of the Commission
by NFA. 38 However, the filed
registration forms, which will have been
received and reviewed by NFA 36 , will
constitute the registration record to be
relied upon in any criminal, civil or
administrative proceeding, and NFA will
continue to certify as to the authenticity
of those records. 87 The Commission’s

•* 49 FR 39593 (October 9. 1984); 54 FR 19594
{May 8,1989).

»«/</.

•• Commission Rule 145.0(b). 17 C.F.R. 145.0(b)
(1989) defines "records’* for purposes of the
Commission’s recordkeeping responsibilities as
including “any document, writing, photograph,
sound or magnetic recording, videotape, microfiche,
drawing or computer-stored information or output in
the possession of the Commission." The
Commission previously has stated that “registration
records maintained on behalf of the Commission by
NFA will Include documents filed with NFA by any
applicant pursuant to registration requirements in
the Act. the Commission's regulations or those NFA
registration rules that implement such requirements
or regulations (and any computer record generated
by such documents) as well as hardcopy (paper)
and computer records maintained by the
Commission as of the date of transfer |io NFA}.“ 49
FR 39593. 39595 n. 13 (October 9,1981). The
Commission further notes that data directly entered
by firms into MRRS can be printed out in hard copy
form.

•• If the required Form 8-R, 3-R or 8-T is not
received by NFA. the MRRS registration computer
will detect such deficiency and alert NFA staff with
a report so that the staff may terminate any granted
temporary license.

87 In the brief interval between recelptof the
electronic filing and receipt of the hard copy, the
computer record would be the record of the filing.
NFA would certfiy the accuracy of a computer
printout reflecting the electronic filing. (Soe Federal
Rules of Evidence 803(a), 901. and 1001(3).)

approval of Phases II and III of the
direct entry program does not eliminate
the requirements in Commission Rule
3.12(c) and NFA registration Rule 206(a)
that an AP applicant file a Form 8-R
(neither rule is being amended). 3 *
Moreover, approval of the direct entry
program does not alter the fact that
registration determinations will continue
to be made by reference to the
information contained in the submitted
Forms 8-R. Both Commission Rule 3.12
and NFA registration Rule 206 require
an application for registration as an AP
of an FCM to be made by means of Form
8-R. 39 The direct entry program requires
the participating firm to electronically
enter into MRRS all of the information
required on Form 8-R (or other relevant
registration forms) and to follow up each
electronic filing by mailing or hand
delivering the paper form to NFA on the
same day. 40 Accordingly, the filed paper
forms will continue to constitute the
primary registration record for all
administrative and judicial purposes. 41

Although under the direct entry
program temporary licensing
determinations will be made in reliance
upon data directly entered into MRRS
by a sponsoring firm prior to NFA’s
receipt of the Form 8-R, any differences
between the directly entered data and
the subsequently Filed registration form
would be resolved by reference to the
submitted form 42 and any differences
that indicate that the applicant does not
qualify for a temporary license will, by
agreement, result in the automatic
termination of a temporary license upon
notice to the participating firm. 43

See Commission Rule 3.12(c). 17 CFR 3.12(c)
(1989) and NFA Registration Role 20T»(.i).

"Id.

40 See Agreement at f$S-4 (Exhibit B to Petition).

41 In one of its orders delegating registration
responsibilities to NFA, tire Commission has
recognized the primacy of Hied registration forms by
stating that “any document that an applicant Hies
with NFA pursuant to registration requirements in
(he Act. the Commission's regulations or those NFA
Registration Rules that implement such
requirements or regulations shall be deemed filed
with the Commission thereof, for all purposes." 49
FR 9593. 39595 (October 9,1984). The Commission
notes that NFA has not requested the elimination of
paper filings of registration forms. The Commission
also wishes to note, however, that as technology
advances and the law develops In this area, it may
be possible to consider such a step provided there
are adequate means of determining responsibility in
a civil and criminal context for submission of data
by electronic means, snd that any other legal issues
relating to electronic filings are adequately
resolved.

41 The agreement for direct entry privileges
requires a participating firm to enter electronically
into MRRS "all information required to be filed on
Form 8-R * * V" See Agreement ^3. (Exhibit B to
Petition).

48 See Agreement \7 (Exhibit B to Petition).

Federal Register / Vol, 55, No. 171 / Tuesday, September 4, 1990 / Notices

35931

In the event that an issue arises as to
the authenticity of any paper
application, the participating firm will
be required, by virtue of its agreement
with NFA, to produce witnesses to
testify as to the Firm’s procedures for
handling, maintaining and processing all
relevant registration records. NFA staff
will be available to provide any
necessary testimony.

As set forth in NFA’s petition, the
procedures for Phases II and III of the
pilot program do not appear to impair
NFA’s ability to perform its delegated
duties as official custodian of the
Commission’s registration records or to
provide accurate certifications regarding
the authenticity and completeness of the
records maintained.

C. Reliability of Information in MRRS

As previously discussed, the paper
registration applications will continue to
constitute official registration records.
However, the data entered into MRRS
also will constitute official registration
records and will be a primary source of
current registration information
requested by the Commission, NFA,
registrants and the public. Thus, the
Commission must be assured that the
direct entry of registration information
by firms will not compromise the
reliability of the MRRS data. In this
regard, the direct entry program raises
two concerns—first, the reliability of
data entered into MRRS by firms, and
second, the potential impact upon MRRS
data reliability of ongoing direct access
by firms into the MRRS system.

1. Reliability of Directly Entered
Information

As previously noted, under the direct
entry program, applicants and their
sponsors will continue to supply the
information upon which temporary
license determinations are made and
will have the same incentives to provide
accurate information as under current
procedures. The willful submission of
inaccurate registration information is a
ground for denial, revocation,
restriction, condition or suspension of
registration under section 6a(2)(G) and
section 8a(3)(G) of the Act, 7 U.S.C.
12a(2)(G) and 12a(3)(G) (1988) “
Similarly, the willful submission of
inaccurate registration or membership
information is a ground for denial or
revocation of NFA membership or
Associate status pursuant to NFA Bylaw
301(c)(x).

The firm responsible for entering
registration information with respect to
its APs into MRRS would also have
direct disciplinary liability under NFA

44 See nn. 9 and 26.

Compliance Rule 2-2(f) 45 for the willful
submission of materially false or
misleading information through direct
entry into MRRS. In addition,
unintentional but frequent data-entry
errors could subject the firm to
disciplinary action under NFA
Compliance Rule 2-9 48 for lack of
appropriate supervision. Finally, a
participating firm’s failure to diligently
supervise the execution of the direct
entry program would constitute a
violation of Commission Rule 166.3,17
CFR 166.3 (1989). 47

A primary incentive for firms to
exercise care in the data-entry process
is the risk of losing the benefits
attendant upon participation in the
direct entry program, that is, the
automatic issuance of temporary
licenses on the basis of an electronic
filing. The participation of any firm in
the pilot program, or in any subsequent
program, will be a privilege, not a
right. 48 As will be discussed, NFA will
closely monitor the accuracy of the
information entered into MRRS by
participating firms and will terminate
the direct entry privileges of any
participant which does not maintain a
satisfactory accuracy level. The written
agreement between NFA and each
participating firm will recognize the
absolute right of NFA, in its sole
discretion and without notice, to
terminate the direct entry privileges of
any firm whose accuracy rate is below
levels acceptable to NFA. 49 As set forth

4S NFA Compliance Rule 2—2(f) provides that no
NFA member or associate shall willfully submit
materially false or misleading information to NFA
or its agents. See Agreement |12 (Exhibit B to
Petition).

44 NFA Compliance Rule 2-9 provides that each
NFA member shall diligently supervise its
employees and agents in the conduct of their
commodity futures activities for or on behalf of the
member. See Agreement fll2 (Exhibit B to Petition)
(Participant acknowledges that the failure to adopt
or enforce the supervisory procedures required by
Paragraph 9 of the Agreement is a violation of NFA
Compliance Rule 2-9 and CFTC Regulation 166.3).

47 Commission Rule 186.3.17 CFR 166.3 (1989)
provides that:

Each Commission registrant, except an associated
person who has no supervisory duties, must
diligently supervise the handling by its partners,
officers, employees and agents (or persons
occupying a similar status or performing a similar
function) of all commodity interest accounts carried,
operated, advised or introduced by the registrant
and all other activities of its partners, officers,
employees and agents (or persons occupying a
similar status or performing a similar function)
relating to its business as a Commission registrant.

See Agreement J12 (Exhibit B to Petition).

48 See Agreement fll (Exhibit B to Petition).

44 The Petition cites a 97% accuracy rate for a five-
day period as illustrative but states NFA’s view that
the appropriate accuracy rate cannot be determined
until NFA gains experience with the pilot program.
The optimal level of accuracy will be determined in
conjunction with the Commission’s oversight of the
direct entry program as NFA gains experience with

in the agreement for firm direct entry
privileges, a participating firm will have
no right to a hearing regarding the
withdrawal of these privileges. 50

Finally, the direct entry program
should not provide any materially
greater incentive or opportunity for a
firm to falsify data in order to obtain
automatically a temporary license for an
AP than under current procedures in
which a temporary license is granted or
denied on the basis of self-declared
information filed on paper registration
forms: in both instances an outside
party, the AP applicant or sponsoring
firm, prepares the data that is supplied
to NFA.

2. Review Procedures

NFA has developed extensive review
procedures to detect data-entry errors
and to assure the accuracy of the
information in MRRS. As described
earlier, during the pilot program NFA
will conduct an item-by-item
comparison between the data entered
into MRRS and the information on the
registration form submitted by a
participating firm. NFA will maintain
detailed statistics of all errors found so
that both the Commission and NFA will
have an adequate basis on which to
evaluate the pilot program.

All filings entered by a particular firm
will receive a complete review for a
minimum of six months after the firm
receives direct entry privileges. Every
item on every paper filing will be
checked against the same information
on MRRS during Phases II and III of the
pilot program and statistics will be kept
on the accuracy of the data entered by
each new participant.

As discussed below, Commission
approval would be required prior to
extension of the direct entry program
beyond Phase III of the pilot program. If
such approval were granted, NFA
contemplates that following conclusion
of the six month period of participation
by a Firm, NFA will continue to perform
a comparison between each Form 8-R
for AP registraton received by NFA and
the firm’s electronic Filing for each item
directly related to eligibility for a
temporary license, including the
applicant’s name and signature, the
sponsor’s certification and all questions
relating to disciplinary history. NFA will
also perform a name check for
registration holds where the applicant’s
social security number is unknown. In

the pilot program. NFA has committed to provide
the Commission these statistics as they are
developed.

50 A firm denied direct entry privileges could
continue to register its APs by filing the Form 8-Rs
directly with NFA.

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Federal Register / VoL 55 t No. 171 / Tuesday, September 4, 1990 / Notices

addition, for each participating firm
NFA will perform an item by item
comparison of ail information on
randomly selected forms with the
corresponding electronic filings. If the
results of this comparison so warrant, a
particular firm could be barred from
participating in the program, as provided
for in the agreement, or could be subject
to the more rigorous “Phase III"
monitoring by NFA.

Based upon this level of review, NFA
has represented that it believes that the
direct entry program will not reduce,
and potentially could improve, the
accuracy and reliability of the
registration data for natural person
applicants entered into MRRS.
Incomplete Filings will be corrected
sooner than under current procedures
because the computer program will
detect filings with empty fields or fields
containing improper characters and will
use an on-screen message to request
that the filing be corrected. For example,
MRRS will detect any filing with an
unanswered disciplinary history
question or that contains letters in fields
that require solely numeric data, such as
dates, NFA or CFrC identification
number, or social security number.

MRRS also is programmed to detect
filing with time gaps in the employment
and residential history sections. MRRS
will accept an incomplete application
for filing but will not issue a temporary
license to the applicant until the
deficiencies are corrected. Therefore,
the data entered into MRRS by
participating firms should be at least as
accurate as the data entered into MRRS
by NFA personnel or formerly entered
into the registration database by
Commission personnel.

3. Computer Security

A further concern posed by direct
entry is the potential impact upon the
integrity of MRRS data of continued
access by participating firms to the
MRRS system. Adequate security
procedures must be in place to detect
and prevent any improper use of or
tampering with data and to duplicate the
information in MRRS in case of
destruction or tampering. In this regard,
NFA has represented that the computer
security practices currently in use at
NFA will be extended to the direct entry
program and will be strengthened as
discussed below. NRA further has
represented that while no security
system is completely fail-proof, the
security measures that will apply to the
direct entry program make unauthorized
access extremely difficult, limit
exposure if unauthorized access is
gained and give NFA the ability to
reconstruct data as it existed prior to

any tampering. NFA has described the
following security measures.

NFA*8 primary security system is
Resource Access Control Facility
(RACF) by IBM. RACF protects access
to MRRS by identifying and verifying
the person attempting to gain access to
MRRS, limiting both the screens
available to the user and the type of
access (inquiry or entry), and keeping a
record of unauthorized attempts to gain
access to MRRS or particular screens
within MRRS.

In order to improve efficiency and
security for remote access to MRRS,

NFA has joined the IBM Information
Network. Before a remote user can
obtain access to NFA’s computer system
through the IBM Information network,
the remote user must provide the IBM
Information Network with NFA's
account ID, a user ID. and a special
password that verifies the user’s identity
and validates the user’s access to the
IBM Information Network.

One communication with NFA's
computer system has been established,
RACF takes over. RACF requires the
user to provide a user ID assigned by
NFA and a password associated with
the ID. The user ID identifies the person
who is trying to gain access to the
system and the password verifies that
the person who is trying to gain access
is the same person that the ID has been
assigned to. The password is changed
every 30 days in order to ensure its
integrity.

The remote user is given three
chances to enter the correct user ID and
password before RACF disables the ID.
The disabled user ID cannot be used
even if a correct password is
subsequently entered The NFA Security
Administrator is the only person who
can reinstate the ID. NFA employs two
people in the role of Security
Administrator. These two individuals
together have 30 years of experience in
data processing and technical support.

In other words, in order to gain off¬
site access to NFA's computer system,
an individual would have to know five
different pieces of information: NFA’s
IBM Information Network account
number, a user ID and a password for
access to the IBM Information Network,
and a user ID and password for access
to NFA’s computer system.

Computer security does not end once
an authorized user has gained access to
the system. Every authorized user has
his or her own unique security profile.
This profile, which is created by the
NFA Security Administrator, determines
which screens and fields the user is
allowed to view and which screens and
fields the user is allowed to update. For

example, based on this profile, RACF
will not allow a participant in Phase I of
the pilot program to view non-public
information to which it is not otherwise
entitled or to update any information on
MRRS, and a Phase Il/Phase III
participant will not be able to update
information in the files of an unaffiliated
firm.

RACF logs all attempts to gain
unauthorized access to the system or to
any screen or field within the system.
RACF also records authorized access to
the system. If the NFA Security
Administrator notices unusual activity
connected with any user ID, the ID can
be disabled until the activity is
investigated and explained.

Furthermore, in the highly unlikely event
that the data in the computer system is
damaged or destroyed, NFA could
utilize the record of use generated by
RACF to try to determine the source of
the damage.

To further enhance security, any
terminal which remains inactive for ten
to twenty minutes is automatically
signed off by the computer. Thus, if the
user leaves his or her station and forgets
to sign off, RACF will automatically sign
the user off, thereby reducing the chance
of unauthorized access through an
unattended terminal. It should also be
noted that participating firms will not
have programming access to NFA’s
computer system.

In the highly unlikely event that data
in the computer system is damaged or
destroyed. NFA can easily reconstruct
the data at the point immediately prior
to damage or destruction. NFA utilizes
the Journaling Facility of the Computer
Associates’ Integrated Database
Management System DATA BASE
product to record all changes to the data
in the system. This journal shows the
data as it existed before the change, the
data as changed, and the cause of the
change. By looking at the journal, NFA
personnel can determine when any
damage occurred. NFA also keeps a
record of the data on the system as of
the end of each day. This information is
copied on computer tape. In addition to
being kept at NFA, the information is
stored off site where it is protected in
the unlikely event of a computer virus in
the system.

No computer security system can keep
a person with authorized access from
entering false information in the fields
where the user has authorization to
enter or change data. However, the pilot
program addresses this problem as well.
All TL sensitive items on ail AP
applications will always be completely
reviewed once the paper filing is
received. These crucial items include

Federal Register / Vol. 55 . No. 171 / Tuesday. September 4. 1990 / Notices

35933

name, signature, sponsors certification,
and the SDDI questions. Furthermore,
less sensitive items on the actual
registration forms will be spot checked
against the data entered directly into
MRRS by each Firm. Therefore, false
answers to the SDDI questions and
other TL sensitive information should be
detected and the accuracy of all other
data will be monitored through spot
checking. If a paper filing to support the
change is not received by NFA within
five business days after the electronic
Filing, the TL will be automatically
terminated.

With respect to audits of NFA's
computer security system. NFA’s
Information Systems Department is in
the process of hiring a quality assurance
auditor with substantial experience and
proven expertise in the Field. On an
ongoing basis, the quality assurance
auditor will audit computer security
procedures and standards to ensure that
they are being complied with and are
consistent with NFA’s needs. The
quality assurance auditor will also
review reports produced by RACF
which provide information on the status
of the computer security environment
and allow the quality assurance auditor
to compare the actual level of security
with the planned level of security. NFA
is also joining the Quality Assurance
Institute to ensure that the quality
assurance auditor keeps up with the
latest developments.

We also note that Arthur Andersen’s
annual audit of NFA includes a review
of NFA’s written computer security
procedures. However, no attempt is
made to break into MRRS by Arthur
Andersen during its audit

While no data storage system,
whether electronic or manual, is immune
to tampering, the measures instituted by
NFA appear to provide a reasonable
level of security that limits access,
detects tampering and provides an
ability to recreate data. In this regard,
direct entry does not appear to
introduce any increased possibilities for
the improper entry of registration data.

D. Consistency with Commission Orders
and Policy

The Commission believes that the
direct entry program is not inconsistent
with previous orders delegating
registration responsibilities to NFA.
Under the direct entry program, NFA
will continue to be the entity making the
registration determinations. The Filed
Commission registration forms will
continue to constitute the primary
registration record. 51 The direct entry

** A* previously noted. Ihe agreement signed by
participating firms requires the firm to enter data

program merely substitutes, on a
temporary basis, the electronic filing of
data for the current paper transmission
of data. In both circumstances, the
applicant data relied upon by NFA is
generated by the applicant and
sponsoring firm. In this regard, direct
entry is analogous to the use of outside
data processing firms to encode data
into a computer system.

As a result of the direct entry
program, temporary licenses can be
granted earlier than under current
procedures, because the information on
which the temporary license is granted
will be filed electronically rather than
filed by mail or hand delivery; the delay
necessitated by current manual data-
entry of paper application information
by NFA personnel will be eliminated;
and the decision on a temporary license
would be transmitted to the firm
instantly via computer screen. The
Commission believes that this procedure
is consistent both with Congressional
policy underlying the temporary license
procedure and Commission policy as
reflected in existing registration
procedures. The legislative history of the
Futures Trading Act of 1982 reflects that
in adopting the temporary licensing
provision, Congress intended that
applicants who are apparently qualified
should be granted temporary licenses as
expeditiously as possible and that the
determination as to whether an
applicant appears to be qualiFied would
be based on whether a statutory
disqualification under section 8a(2) or
8a(3) of the Act has been disclosed by
the applicant. 52

Moreover, the direct entry phase of
the pilot program does not alter the
substantive criteria upon which
temporary licensing determinations or
final registration determinations are
made. Rule 3.40 requires the
contemporaneous filing of three
documents prior to the issuance of a
temporary license; a properly completed
Form 8-R. a fingerprint card and a
signed sponsor’s certification. Although
NFA’s pilot program will depart from
current procedures with respect to how
and when such information is initially
transmitted to NFA, 53 it will not affect

electronically thal mirrors the data on the Form 8-R.
3-R or S-T. Thus, any discrepancy between the
direct entry data and the paper registration form
would be decided in favor of the latter.

H R Rep. No. 565 (pari 1). 97th Cong. 2d Seas.
50(1982).

** For example, Commission Rule 3 40 provides
that the NFA may grant a temporary license to any
applicant for registration as an associated person
upon the contemporaneous filing with NFA of a
Form 6-R. the fingerprint card and the sponsor's
certification. The direct entry program allows NFA
to grant a temporary license in reliance upon the
electronic filing, at a maximum of five days prior to

the type of information actually
obtained or the basis upon which
temporary licensing determinations are
made.

NFA will continue to determine
whether applicants are subject to
statutory disqualifications under Section
6a(2) or 8a(3) of the Act. The only
difference will be that NFA's initial
review will be based on an electronic
filing of the identical information that is
now submitted on the paper filing of the
Form 8-R. Moreover, that fact that the
fingerprint care will be received by NFA
after a temporary license determination
has been made by NFA is immaterial
since temporary license determinations
currently are made prior to completion
of the fingerprint screening conducted
by the FBI. Finally, under the pilot
program, NFA would continue to require
that participating firms inquire into the
backgrounds of potential AP 9 ; however,
the firm’s certification that it has in fact
performed a background check will
initially be transmitted electronically
rather than on paper.

In summary, the Commission believes
that NFA's direct entry program should
have no adverse impact upon the
process for granting temporary licenses
or for making final registration
determinations.

E. Potential Benefits of Direct Entry

NFA has identified several potential
benfits of direct entry. Direct entry of
data will transfer the data entry function
from NFA to firm sponsors, thereby
allowing NFA personnel to devote more
time to the reveiw of applications. Direct
entry also should, reduce the time
entailed in correcting deficient
applications, since the sponsoring firm
entering the data into the NFA computer
system will be presented with a series of
screens which will identify needed
information to the sponsor
instantaneously. Direct entry should
reduce the time required to grant
temporary licenses by eliminating
delays due to physically delivering
registration forms to NFA, transferring
such data to MRRS by NFA personnel,
and notifying applicants by mail of
temporary licensing determinations.

Conclusion and Order

Based upon the foregoing, the
Commission believes that the direct
entry program can be implemented in a
manner that is consistent with NFA’s
registration responsibilities under prior
Commission orders and with the

receiving the Form 8-R and fingerprint card. See
atso Rule 3,42.17 CFR 3.42 (1989) (termination of a
temporary license).

35934

Federal Register / Vol. 55, No. 171 / Tuesday. September 4, 1990 / Notices

required degree of accuracy, reliability
and security for NFA registration
processing and fitness screening. In this
regard, however, the Commission notes
that the direct entry program procedures
are at variance with the filing
procedures currently mandated by both
Commission regulations and parallel
NFA rules. 64 Because entry program is
structured initially as a pilot program
limited to specified participating firms
and is subject to ongoing Commission
oversight, the Commission believes that
consideration of amendments of the
relevant Commission and NFA rule
should await a full evaluation of the
operation of the pilot program.
Therefore, the Commission is approving
Phases II and III of NFA's pilot direct
entry program as a limited exception to
the Commission’s registration
procedures applicable only to specified
participating firms. The Commission
anticipates that amendments to
Commission and NFA registration rules
to make direct entry universally
available would be made only after a
complete evaulation of the pilot phases
of the program. In addition, extension of
Phase III beyond a period of six months
from its commencement will require
Commission approval.

Accordingly, pursuant to sections
8 a(l) and 8a(10) of the Commodity
Exchange Act, 7 U.S.C. 12a(l) and
12 a(10) (1988), the Commission hereby
authorizes the National Futures
Association to implement the direct
entry pilot program as described by, and
subject to, the conditions set forth
below.

1. The direct entry pilot program is
described in the Petition dated January 5,
1989, including Exhibits A (MRRS Individual
Processing System), B (Agreement for Firm
Direct Entry Privileges. 01/05/89 draft), C and
D (MRRS Direct Entry Pilot Program Monthly
Report, Phases 11 and III, respectively), as
supplemented by submissions discussing
computer security measures dated September
28,1989 and July 10,1990 and by a letter
concerning the length of Phase II dated July
17,1990. The commitments set forth in the
Petition constitute the responsibilities of NFA
unless otherwise stated or modified by this
Order.

2. Implementtion of Phase III of the direct
entry program is subject to Commission
disapproval based upon review of the results
of Phase II. Unless extended by the
Commission. Phase UI of the direct entry
program will terminate six months after its
commencement.

3. The firms authorized to participate in the
direct entry program are: Merrill. Lynch,
Pierce. Fenner & Smith, Shearson Lehman
Brothers, Inc., Dean Witter Reynolds. Inc.,
Geldermann, Inc., R.J. O’Brien, Inc.,

Prudential Bache Securities, Inc., Goldman

14 See n. 53.

Sachs & Co.. Cargill Investor Services, Inc.,
BT Futures Corp. and Brokers Resources
Corp. Additional firms may be added only
with the prior approval of the Commission's
Division of Trading and Markets.

4. In addition to providing the statistics
described in the Petition, NFA will provide
the Commission with such data as may be
requested from time to time concerning the
direct entry program.

5. In addition to terminating temporary
licenses pursuant to the provisions of
Commission Rule 3.42,17 CFR 3.42 (1989),
NFFA or the Commission shall immediately
terminate a temporary license granted under
the direct entry program if the applicant or
sponsoring firm fails to provide NFA with
fingerprint cards, registration forms and any
required supporting data within five business
days of the date the sponsoring firm enters a
command for MRRS to process the
information entered into MRRS; if NFA’s
verification of the submitted registration
forms and fingerprint cards discloses that the
applicant is not eligible for a temporary
license; or where the license was granted by
mistake or as a result of fraudulent means.

6. This order may be revoked or modified
at the discretion of the Commission.

Issued in Washington, DC on August 28,
1990 by the Commission.

Jean A. Webb,

Secretary of the Commission.

[FR Doc. 90-20639 Filed 8-31-90; 8:45 amj
BILLING CODE 6351-01-M

DEPARTMENT OF DEFENSE

Department of the Army

\

U.S. Army Laboratory Command, DoD;
Patent Licenses, Partially Exclusive,
Schodowsky, S.S.

action: Final notice of prospective
partially exclusive licenses.

summary: In accordance with 37 CFR
404.7, announcement is made of
prospective partially exclusive licenses
of a Dual Mode Quartz Resonator Self-
Temperature Sensing Device. Further
applications for licenses in this matter
will not be entertained. This action is
being made final.

FOR FURTHER INFORMATION CONTACT:

Mr. William H. Anderson, Intellectual
Property Law Division, U.S. Army
Communications-Electronics Command,
ATTN: AMSEL-LG-L, Fort Monmouth,
NJ 07703-5000, COMM: (201) 532-4112.
SUPPLEMENTARY INFORMATION:
Heretofore Notice of Prospective
Partially Exclusive Licenses was
published on Thursday, June 28,1990, 55
FR 26479. In consideration of the
objections received thereon, the
following actions will be taken:

The granting of partially exclusive
licenses for U.S. Patent No. 4,872,765,

issued to S.S. Schodowsky on October
10,1989, will be considered for the
parties listed below:

—Q-Tech Corporation, 10150 W.
Jefferson Blvd., Culver City, CA
90232-3501;

—Frequency Electronics, Inc., 55 Charles
Lindberg Blvd., Mitchel Field, NY
11553;

—Motorola Inc., 1303 E. Algonquin Rd.,
Schaumburg, IL 60196-1065;

—Piezo Crystal Co., 100 K St., P.O. Box
619, Carlisle. PA 17013;

—Vectron Laboratories, Inc., 166 Glover
Ave., Norwalk, CN 06850;

—Piezo Technology, Inc., P.O. Box
547859, Orlando, FL 32854-7859; and
—Ball, Efratom Division, 3 Parker. Irvin,
CA 92718-1605
Kenneth L. Denton,

Alternate Army Liaison Officer with the
Federal Register.

(FR Doc. 90-20753 Filed 8-31-90; 8:45 am)

BILUNG CODE 3710-08-M

Department of the Navy

Public Hearing for the Draft
Environmental Impact Statement for
Possible Base Closure/Realignment of
Naval Ordnance Station, Louisville, KY

Pursuant to Council on Environmental
Quality regulations (40 CFR parts 1500-
1508) implementing procedural
provisions of the National
Environmental Policy Act, the
Department of the Navy prepared and
filed with the U.S. Environmental
Protection Agency the Draft
Environmental Impact Statement (DEIS)
for possible base closure/realignment of
Naval Ordnance Station
(NAVORDSTA) Louisville, Kentucky.

The DEIS has been distributed to
various federal, state, and local
agencies, elected officials, special
interest groups and the media. In
addition, the DEIS has been distributed
to the following libraries in the
Louisville metropolitan region:

Louisville Free Library, Main Library.

310 York Street, Louisville, KY.
Louisville Free Library, Valley Station
Branch, 6505 Bethany Lane, Louisville,
KY.

Louisville Free Library, Newman
Branch, 3920 Dixie Highway,
Louisville, KY.

Louisville Free Library, Okolona Branch.

8003 Preston Highway, Louisville, KY.
Louisville Free Library, Valley Shawnee
Branch, 3912 W. Broadway, Louisville,
KY.

Louisville Free Library, Iroquois Branch
601 W. Woodlawn, Louisville, KY.

Federal Register / Vol. 55, No. 171 / Tuesday, September 4, 1990 / Notices

35935

Louisville Free Library. Bon Air Branch.

2816 Del Rio Place. Louisville. KY.
Jefferson Twp. Public Library. 211 East

Court Avenue, Jefferson. IN.

New Albany-Floyd County Public

Library. 180 W. Spring Street. New

Albany, IN.

A limited number of single copies are
available at the address listed at the end
of this notice.

A public hearing to inform the public
of the DEIS findings and to solicit
comments will be held on September 20.
1990. from 6:30 p.m. to 10*30 p.m.. at the
NAVORDSTA Louisville Cafeteria.
Louisville. Kentucky.

The public hearing will be conducted
by the U.S. Navy. Federal, state, and
local agencies and interested parties are
invited and urged to be present or
represented at the hearing. Oral
statements will be heard and
transcribed by a stenographer however,
to assure accuracy of the record all
statements should be submitted in
writing. Ail statements, both oral and
written, will become part of the public
record on this study. Equal weight will
be given to both oral and written
statements.

In the interest of available time, each
speaker will be asked to limit their oral
comments to five (5) minutes. If longer
statements are to be presented, they
should be summarized at the public
hearing and submitted in writing either
at the hearing or mailed to the address
listed at the end of this announcement.
All written statements must be
postmarked by October 15,1990, to
become part of the official record.

On January 29,1990, the Secretary of
Defense announced a list of defense
installations to be studied for possible
closure/realignment in response to
possible reductions in military force
structure. Included on this list was
NAVORDSTA Louisville.

The primary mission of NAVORDSTA
Louisville is the modernization,
overhaul, and repair of naval ordnance
systems. As part of the projected force
level reductions. NAVORDSTA
Louisville was identified for study in
order to examine whether overall
management efficiency of the Navy
could be improved.

Alternatives considered in the DEIS
are closure of NAVORDSTA Louisville
and No Action. Under the closure
alternative, all naval activities would
either be disestablished or relocated to
other Defense Department installations
or private industry. The No Action
alternative considers the continuation of
functions for the installations under
study, though some reduction in
operation could occur as a result of
force structure reductions. No preferred

alternative has been identified in the
DEIS.

The direct impacts of full closure
would result in the los9 of 12 military
personnel and about 2.350 civilian
positions- Total secondary employment
impacts from full closure would include
the loss of an additional 1.500 to 2,200
jobs.

Several large machine tools have been
identified as potentially eligible for
listing on the National Register of
Historic Places. Consultation procedures
noted in 36 CFR part 800 would be
followed for actions that may affect
eligible cultural resources.

There are recognized unmitigated
hazardous material sites on
NAVORDSTA Louisville that would
have to be remediated as necessary in
accordance with the Navy’s Installation
Restoration Program. This remediation
would be accomplished whether or not
NAVORDSTA Louisville is closed.

Under the closure alternative new
construction would be required at
several of the receptor locations where
functions may be transferred.

Additional information concerning
this notice may be obtained by
contacting the Commander. Atlantic
Division, Naval Facilities Engineering
Command, (Attn: Mr. Jim Haluska, Code
2032, telephone (804) 445-2334). Norfolk,
VA 23511-6287.

Dated: August 29.1990.

Saundra K. Melancon,

Department of the Navy. Alternate Federal
Register Liaison Officer.

[FR Doc. 90-20717 Filed 8-31-90; 8:45 am|
BILUNG CODE M10-AE-V

DEPARTMENT OF EDUCATION

Proposed Information Collection
Requests

AGENCY: Department of Education.
action: Notice of proposed information
collection requests.

SUMMARY: The Director, Office of
Information Resources Management,
invites comments on the proposed
information collection requests as
required by the Paperwork Reduction
Act of 1980.

dates: Interested persons are invited to
submit comments on or before October
4.1990.

ADDRESSES: Written comments should
be addressed to the Office of
Information and Regulatory Affairs
Attention: Dan Chenok, Desk Officer.
Department of Education. Office of
Management and Budget. 726 Jackson
Place. NW., room 3208. New Executive

Office Building. Washington. DC 20503
Requests for copies of the proposed
information collection requests should
be addressed to James O’Donnell.
Department of Education. 400 Maryland
Avenue SW.. room 5824, Regional Office
Building 3. Washington. DC 20202.

FOR FURTHER INFORMATION CONTACT*
James O’Donnell (202) 708-5174.
SUPPLEMENTARY INFORMATION: Section
3517 of the Paperwork Reduction Act of
1980 (44 U.S.C. chapter 35) requires that
the Office of Management and Budget
(OMB) provide interested Federal
agencies and the public an early
opportunity to comment on information
collection requests. OMB may amend or
waive the requirement for public
consultation to the extent that public
participation in the approval process
would defeat the purpose of the
information collection, violate Slate or
Federal law. or substantially interfere
with any agency's ability to perform its
statutory obligations.

The Acting Director, Office of
Information Resources Management,
publishes this notice containing
proposed information collection
requests prior to submission of these
requests to OMB. Each proposed
information collection, grouped by
office, contains the following:

(1) Type of review requested, e.g..
new, revision, extension, existing or
reinstatement; (2) Title; (3) Frequency of
collection; (4) The affected public; (5)
Reporting burden; and/or (6)
Recordkeeping burden; and (7) Abstract.
OMB invites public comment at the
address specified above. Copies of the
requests are available from James
O’Donnell at the address specified
above.

Dated: August 28.1990.

James O’Donnell,

Acting Director, for Office of Information
Resources Management

Office of Special Education and
Rehabilitative Services

Type of Review: Revision.

Title: Evaluation of State Vocational
Rehabilitation Activities in Drug/
Alcohol Rehabilitation.

Frequency: One-time.

Affected Public: State or local
governments.

Reporting Burden:

Responses: 756.

Burden Hours: 1051.

Recordkeeping Burden:

Recordkeepers: 0.

Burden Hours: 0.

Abstract: The purpose of this study is to
determine the constellation of services
that best contribute to the

35936

Federal Register / Vol. 55 f No. 171 / Tuesday, September 4, 1990 / Notices

rehabilitation of alcohol and drug
dependent clients within VR State
agencies.

[FR Doc. 90-20647 Filed 6-31-90; 8:45 am]

BILLING COPE 4000-01-41

DEPARTMENT OF ENERGY

Financial Assistance Award; Intent to
Award Grant to Robert E. Bode

agency: U.S. Department of Energy.
action: Notice of unsolicited assistance
award.

SUMMARY: The Department of Energy
announces that pursuant to 10 CFR
600.14, it is making a financial
assistance award under Grant Number
DE-FG01-90CE15465 to Robert E. Bode,
to complete the development and testing
of fieldworthy methods and apparatus
for placing and monitoring oil plugs in
oil and gas wells.

SCORE: This grant will provide funding
in the estimated amount of $42,355 to
improve the inherent efficiency of
placing cement plugs. The correct
placement of cement plugs in an oil well
is important for its production operation
to extend its productive life. This project
drastically decreases the amount of
drill-rig time required to place the plugs.
It does so by allowing the plug to be
monitored while being placed and by its
unique ability to place multiple cement
plugs without removing the pipe string
from the well bore. The inventor
estimates, and the National Institute of
Standard and Technology (NIST)
concurs, that placement mistakes cost
the industry around $2 billion each year
from the combination of additional drill-
rig time required, escalating capital and
labor costs from the combination of
wasted efforts, and wasted energy. NIST
believes that the invention has a
substantial and timely market niche,
especially in off shore drilling, because
it reduces the drill rig and energy costs
required for developing oil and gas
fields that now are economically
marginal because of their currently high
development cost.

eligibility: Eligibility for award is being
limited to Robert E. Bode, the inventor,
based on acceptance of an unsolicited
application. Mr. Bode and his company
will be the demonstrator and licensor of
this new system for the placement of
cement plugs in wells. As soon as the
advanced prototype is successfully
demonstrated, as appears probable, it
should be readily accepted in the
marketplace.

In accordance with 10 CFR
600.14(c)(1), it has been determined that
this project represents a unique idea

that is not eligible for financial
assistance under a recent, current, or
planned solicitation. The funding
program, Energy-Related Inventions
Program (ERIP), has been structured
since its beginning in 1975 to operate
without competitive solicitations
because the legislation directs ERIP to
provide support for worthy ideas
submitted by the public. The proposed
project and technology have a strong
potential of adding to the national
energy resources.

The term of this grant shall be for two
(2) years from the effective date of
award.

FOR FURTHER INFORMATION CONTACT:

U.S. Department of Energy, Office of
Procurement Operations. ATTN:
Bernard G. Canlas, PR-542,1000
Independence Avenue SW.,
Washington, DC 20585.

Thomas S. Keefe,

Director, Contract Operations Division "B’\
Office of Procurement Operations.

(FR Doc. 90-20738 Filed 8-31-90; 8:45 am]

BILLING COOE 6450-01-M

Financial Assistance Award; Intent to
Award Grant to University of
Missouri—Rolla

agency: U.S. Department of Energy.
action: Notice of unsolicited assistance
award.

SUMMARY: The Department of Energy
announces that pursuant to 10 CFR
600.14, it is making a financial
assistance award under Grant Number
DE-FG01-90CE15467 to the University of
Missouri—Rolla to investigate the
applicability of high-pressure jet
lubricooling to the milling of titanium.
SCOPE: This grant will provide funding
in the estimated amount of $82,941 for
improving the technology that will result
in faster milling of titanium at reduced
energy consumption, a fact that will be
of interest to manufacturers of titanium
parts. Achieving this improved
technology will encourage the
application of new milling technique to
new materials in addition to titanium.
The probability of achieving the
improvement in titanium milling rates
and finishes is very high. The principal
investigator has spent several years in
development of the high-pressure jet
techniques. Independent experts on
titanium have agreed that there are no
apparent barriers to successful
application of the technology.
eligibility: Eligibility for this award is
being limited to Curators of the
University of Missouri for the University
of Missouri—Rolla. The principal

investigator is Dr. Marian Mazurkiewicz
an expert in the fields of: fine
manufacturing equipment; high-pressure
water jets for cutting, cleaning,
excavating, and disintegrating; and
metal machining with the assistance of
high-pressure water jets. He spent the
first 20 years of his career at Wroclaw
Technical University in Poland before
transferring to the University of
Missouri at Rolla in 1981. He has more
than 100 publications, 12 patents, and a
total of 17 disclosures awaiting patents
through the University of Missouri and
is eminently qualified to perform the
work to be funded by the proposed
grant. Since his association with the
University of Missouri—Rolla, he has
served as the principal investigator on
more than 10 research projects for the
agencies such as the Department of
Energy and the Interior and corporate
clients including General Motors.

In accordance with 10 CFR
600.14(e)(1), it has been determined that
this project represents a unique idea
that is not eligible for financial
assistance under a recent, current, or
planned solicitation. The funding
program Energy-Related Inventions
Program (ERIP), has been structured
since its beginning in 1975 to operate
without competitive solicitations
because the legislation directs ERIP to
provide support for worthy ideas
submitted by the public. The proposed
project and technology have a strong
potential of adding to the national
energy resources.

The term of this grant shall be for two
(2) years from the effective date of
award.

FOR FURTHER INFORMATION CONTACT:

U.S. Department of Energy, Office of
Procurement Operations, ATTN:

Bernard G. Canlas, PR-542,1000
Independence Avenue SW.,

Washington, DC 20585.

Thomas S. Keefe,

Director, Contract Operations Division “B",
Office of Procurement Operations.

[FR Doc. 90-20736 Filed 8-31-90; 8:45 am]

BILUNG CODE 6450-01-M

Intent To Award Grant To National
Academy of Sciences

agency: Department of Energy.
action: Notice of intent to make a non¬
competitive financial assistance award.

summary: The Department of Energy
announces that it plans to make a non¬
competitive financial assistance award
of $50,000, under grant number DE-
FG01-90RW00214, to the National
Academy of Sciences (NAS) to provide

Federal Register / Vol. 55, No. 171 / Tuesday, September 4 t 1990 / Notices

35937

support for the Geotechnical Board.

NAS will support efforts in developing a
program for nuclear waste management,
in particular, the disposal of waste in a
mined geologic repository. NAS is a
uniquely qualified, unbiased, external
organization chartered by Congress in
1863, to conduct studies in the fields of
Science and Art when called upon by
the Government.

FOR FURTHER INFORMATION CONTACT:

U.S. Department of Energy, Office of
Procurement Operations, Attn: Herbert
D. Watkins, PR-321.1,1000
Independence Ave., SW. Washington,
DC 20585, Telephone No. (202) 586-1026.

Jeffrey Rubenstein,

Director, Operations Division "A ", Office of
Placement and Administration.

[FR Doc. 96-20737 Filed 8-31-90; 8:45 a.m.)

BILLING CODE 6450-01-II

Federal Energy Regulatory
Commission

[Docket Nos. ER90-557-000, et al.]

Western Massachusetts Electric
Company, et al.; Electric Rate, Small
Power Production, and Interlocking
Directorate Filings

Take notice that the following filings
have been made with the Commission:

1. Western Massachusetts Electric Co.

[Docket No. ER90-557-000]

August 24.1990.

Take notice that on August 23,1990,
Northeast Utilities Service Company, on
behalf of Western Massachusetts
Electric Company, tendered for filing a
letter agreement provided for an
extension to the term of three currently
filed transmission service agreements
between Western Massachusetts
Electric Company and New England
Power Company.

Comment date : September 12,1990, in
accordance with Standard Paragraph E
at the end of this notice.

2. Wisconsin Power & Light Co.

[Docket No. ER90-319-000]

August 24.1990.

Take notice that on August 23,1990,
Wisconsin Power & Light Company
tendered filing further information
concerning certain aspects of the
combustion turbine agreement filed for
approval in this docket.

Comment date: September 12,1990, in
accordance with Standard Paragraph E
end of this notice.

3 . West Texas Utilities Co.

[Docket No. ER96-556-000]

August 24.1990.

Take notice that on August 23,1990,
West Texas Utilities Company tendered
for filing an agreement for remote
interrogation of metering recorders
between West Texas Utilities Company
and Brazos Electric Power Cooperative,
Inc.

Comment date: September 12,1990, in
accordance with Standard Paragraph E
at the end of this notice.

Standard Paragraphs

E. Any person desiring to be heard or
to protest said filing should file a motion
to intervene or protest with the Federal
Energy Regulatory Commission, 825
North Capitol Street, NE„ Washington,
DC 20426, in accordance with Rules 211
and 214 of the Commission’s Rules of
Practice and Procedure (18 CFR 385.211
and 385.214). All such motions or
protests should be filed on or before the
comment date. Protests will be
considered by the Commission in
determining the appropriate action to be
taken, but will not serve to make
protestants parties to the proceeding.
Any person wishing to become a party
must file a motion to intervent. Copies of
this filing are on file with the
Commission and are available for public
inspection.

Lois D. Cashell,

Secretary.

[FR Doc. 90-20667 Filed 8-31-90; 8:45 am]
BILLING CODE 6717-01-N

[Project Nos. 1417-001 et al.)

Hydroelectric Applications (Central
Nebraska Public Power and Irrigation
District et al.); Applications Filed With
the Commission

Take notice that the following
hydroelectric applications have been
filed with the Commission and are
available for public inspection:

1 a. Type of Application: Major
License.

b. Project No.: 1417-001.

c. Date filed: June 28,1984 and
supplemented June 4,1990.

d. Applicant: Central Nebraska Public
Power and Irrigation District.

e. Name of Project: Kingsley Hydro
Project.

f. Location: On the North Platte River
in Keith County, Nebraska.

g. Filed Pursuant to: Federal Power
Act. 16 U.S.C. 791(a)—825(r).

h. Applicant Contact: Mr. Tom
Watson, Crowell & Mooring. 1001
Pennsylvania Avenue, Washington, DC
20004, (202) 624-2500.

i. FERC Contact: Ed Lee, (202) 357-
0809.

j. Comment Date: October 5.1990.

K. Description of Project: The existing
operating project was issued an Initial
license in 1937 which expired on July 29.
1987. The licensee has filed for a new
license for the continue operation of the
project with no new construction
proposed.

The project consists of: (1) Lake
McConaughy with gross storage
capacity of 1,790,00 acre-feet and
surface area of 30,500 acres at normal
maximum surface elevation of 3265.0
feet m.s.l.; (2) Kingsley Dam, an earth
structure about 3 miles long and 163 feet
high with an outlet tower and outlet
conduit 415 feet long, 19 feet-in-diamter,
capable of discharging about 5,720 cfs, a
morning glory spillway with twelve
gates capable of discharging about
54,000 cfs, and an emergency spillway
475 feet wide capable of discharging
about 50.000 cfs; (3) Kingsley
powerhouse, located at the right
abutment of Kingsley dam, with a single
52,000-HP Turbine and a 50-MW
generator; (4) Lake Ogallala located at
the toe of the Kingsley Dam with a
usuable storage of 4,200 acre-feet and
surface area of 640 acres at normal
maximum surface elevation of 3126.5
feet m.s.l.; the “east arm” of the lake is
the FERC licensed Project No. 1835; (5) a
Diversion Dam located about 50 miles
downstream from Kingsley Dam, the
dam is 874 feet long with concrete ogee
spillway and sixteen radial gates; (6) a
supply canal consisting of a 26.9-mile-
long Jeffrey Section and a 48.6-mile-long
Johnson Section with headgate
structures, radial gate check structures,
and 23 dams and impoundments of
which 10 are on the Jeffrey Section and
13 on the Johnson Section; (7) Jeffrey
Regulating Reservioir, the largest of the
ten (10) impoundments on the Jeffrey
Section of the supply canal, has a gross
storage of 11,500 acre-feet and surface
area of 575 acres at normal maximum
surface elevation of 2758.0 feet m.s.l.; (8)
Jeffrey Dam. an earth structure, 1,034
feet long and 70 feet high; (9) a 700-foot
long inlet canal which connects the
Jeffrey powerhouse; (10) Jeffrey Hydro
with two turbines each at 13,000 HP and
two generators each rated at 9 MW; (11)
Johnson Regulating Reservoir, the
largest of the thirteen impoundments on
the Johnson Section of the supply canal
has a gross storage of 52,200 acre-feet
and surface area of 2,500 acres at
normal maximum surface elevation of
2619.0 feet m.s.l.; (12) Johnson Dam an
earth structure, 4,958 feet long and 47
feet high; (13) a forebay canal about
6,495 feet long, converying water from

35333

Federal Register / Vol. 55, No. 171 / Tuesday, September 4. 1990 / Notices

the Johnson Regulating Reservoir to the
Johnson No. 1 Hydro; (14) Johnson No. 1
Hydro, has two turbines each at 13,000
HP and two generators each rated at 9
MW; (15) Johnson No. 2 Hydro, located
about 5.7 miles downstream from the
Johnson No. 1 Hydro, has one single
25,000-HP turbine and an 18-MW
generator, and (16) an intake channel,
152 feet long and 14 feet wide, located
downstream from the Johnson No. 2
Hydro, conveying condenser cooling
water to the 109-MW Canaday Stream
Electric Station; (17) a 60 mch-in-
diameter concrete pipe which returns
the condenser cooling water to the
supply canal; and (18) appurtenant
facilities.

L Purpose of Project Project power
would continue to be utilized in the
applicant’s power generation system.

m. This notice also consists of the
following standard paragraphs: B, C,
and Dl.

2 a. Type of Application: Major

I irpnco

b. Project No.: 1835-013.

c. Date filed: June 28,1984 and
supplemented June 4,1990.

d. Applicant Nebraska Public Power
District.

e. Name of Project Sutherland Hydro
Project.

f. Location: On the North Platte River
in Keith County. Nebraska.

g. Filed Pursuant to: Federal Power
Act. 18 U.S.C. 791(a}-825(r).

h. Applicant Contact Mr. Tom
Watson. Crowell & Mooring, 1001
Pennsylvania Avenue, Washington, DC
20004, (202) 624-2500.

L FERC Contact Ed Lee, (202) 357-
0809.

j. Comment Date: October 5,1990.

k. Description of Project The existing
operating project was issued an initial
license in 1937 which expired on June 30,
1987. The licensee has filed for a new
license for the continued operation of
the project with no new construction
proposed.

The project consists of: (1) Keystone
Diversion Dam, an earth structure which
impounds Lake Ogalials; the dam is
1,298 feet long and 24.4 feet high, with a
south sluiceway 98 feet long, non-
overflow section 525 feet long, center
sluiceway 67 feet long, and an
emergency spillway (fuse plug) 6C8 feet
long; the '"west arm'* of the lake is in
FERC licensed Project No. 1417; (2) a
supply canal. 32.3 miles long, which
conveys the water diverted by Keystone
Diversion Dam to the Sutherland
Reservoir, (3) Korty Diversion Dam,

1,244 feet long and 19 feet high with a
sluiceway 58.5 feet long, concrete ogee
spillway 435.5 feet long and a fuse plug
600 feet long; the dam diverts flows of

the South Platte River into the South
Supply Cana!; (4) the South Platte
Supply Canal, about seven miles long;
the water from the Supply Canal may be
conveyed for cooling purposes to the 850
MW steam electric Gerald Gentleman
Station; (5) Sutherland Reservoir, with
gross storage capacity of 65,974 acre-feet
and surface area of 3,050 acres at
normal maximum surface elevation of
3055.0 feet m.s.L; the water from the
Sutherland Reservoir may be conveyed
for cooling purposes to the 650 MW
steam electric Gerald Gentleman
Station; (6) an Outlet Canal, 19 miles
long, which conveys water bom
Sutherland Reservoir to Lake Maloney;

(7) Lake Maloney and Dam, the lake is
an off channel regulating reservoir with
gross storage capacity of 21,600 acre-feet
and surface area of 1.670 acres at
normal maximum surface elevation of
3006.0 feet m.s.1.; the dam is an earth
structure 8,700 feet long and 44 feet high;

(8) a Power Canal two miles long, which
conveys water from Lake Maloney
through a forebay and penstock to the
North Platte powerhouse; (9) North
Platte powerhouse, located about two
miles from North Platte, Nebraska,
which has two 18,000-HP turbines and
two generators each rated at 12 MW;

(10) a tailrace canal, about two miles
long, which conveys water from the
North Platte powerhouse to the South
Platte River; and (11) appurtenant
facilities.

l. Purpose of Project Project power
would continue to be utilized in the
applicant's power generation system.

m. This notice also consists of the
following standard paragraphs: B, C,
and Dl.

3 a. Type of Application: Amendment
of License.

b. Project No.: 2230-005.

c. Dote filed: May 16,1990.

d. Applicant City and Borough of
Sitka. Alaska.

e. Name of Project Blue Lake
Hydroelectric Project.

f. Location: On Sawmill Creek in the
Sitka Borough of Alaska.

g. Filed Pursuant to: Federal Power
Act, 16 U.S.C. 791(a)-325(r).

h. Applicant Contact Mr. Greg
Grissom. Electric Superintendent, City
and Borough of Sitka, 304 Lake Street
Sitka, AK 99835, Telephone: (907) 747-
3294.

i. FERC Contact Mr. William Roy-
Harrison. (202) 357-0845.

j. Comment Date: October 4 , 1990.

k. Description of Project The license
for the existing Blue Lake Hydroelectric
Project would be amended to include
two additional generating units, a fish
valve unit and a pulp mill feeder unit.

The proposed fish valve unit would
consist of: (1) a 36-inch wye branch
connected to the existing flange of the
fish release valve; (2) a 24-inch-
diameter, 19-foot-long penstock; (3) a
powerhouse containing a generating unit
with a rated capacity of 700 kW; (4) a
12.47-kV, 7,700-foot-long transmission
line, connecting into the existing Blue
Lake substation; and (5) appurtenant
facilities.

The proposed pulp mill feeder unit
would consist of: (1 j a 36-inch wye
branch connected to the existing pulp
mill feeder pipe; (2) a 24-inch-diameter,
10-foot-long penstock; (3) a powerhouse
containing a generating unit with a rated
capacity of 1,000 kW; (4) a 4.16-kV, 470-
foot-long buried power cable connecting
into the existing Blue Lake substation;
and (5) appurtenant facilities.

1. This notice also consists of the
following standard paragraphs: B, C,
and Dl.

4 a. Type of Application: Conduit
Exemption.

b. Project No.: 2424-001.

c. Date Filed: April 21,1989.

d. Applicant Niagara Mohawk Power
Corporation.

e. Name of Project Hydraulic Race.

f. Location: On the New York State
Barge Canal, in the City of Lockport
Niagara County, New York.

g. Filed Pursuant to: Federal Power
Act, section 30,16 U.S.C. 79Jfa)-825(r).

h. Applicant Contact Jerry Sabattis,
300 Erie Boulevard West, Syracuse, NY
13202, (315) 428-5582.

i. FERC Contact: Charles T. Raabe
(tag) (202) 357-0811.

j. Comment Date: September 24.1990.

k. Description of Project The existing,
operating project consists of: (1) a
concrete-lined, horseshoe-shaped, 140-
foot-long, 12-foot-wide, 12.5-foot-high
tunnel; (2) a 100-foot-long, 13-foot-
diameter steel penstock; (3) a 54-foot-
long, 46-foot-wide, 50-foot-high steel and
brick powerhouse containing a
generating unit rated at 4,687-kW; (4) a
500-foot-long tailrace; and (5)
appurtenant facilities.

The New York State Department of
Transportation is responsible for the
operation of Locks 34 and 35 and for
maintaining operating water levels in
the downstream section of the canal.
Control of water release and the
resulting generation from the project is
achieved by the Barge Canal Lock
Operator adjusting die discharge of
water from the barge canal.

Although the single adjustable blade
Kaplan unit has a rated capacity of
4687-kW at 46 feet head, the maximum
capability is 3400-kW at a flow of 1080
cfs due to hydraulic limitations in the

Federal Register / Vol. 55. No. 171 / Tuesday. September 4, 1990 / Notices

35939

conduit system. An average of between
600 to 800 cfs has been utilized for
generation in recent years. The project's
average annual generation is 11,000,000-
kWh.

Generation is limited to the navigation
season which is from approximately
May 1 to December 1 each year. During
the non-navigation season, the canal is
dewatered. Energy produced by the
project is used by applicant within its
distribution system.

1. This notice also consists of the
following standard paragraphs: B, C,
and D3b.

5 a. Type of Application: Surrender of
License.

b. Project No.: 2761-027.

c. Date Filed: July 26.1990.

d. Applicant: El Dorado Irrigation
District and El Dorado County Water
Agency.

e. Name of Project: Upper Mountain
Project.

f. Location: On the South Fork
American River and its tributaries in El
Dorado County, California.

g. Filed Pursuant to: Federal Power
Act 16 U.S.C. 791(a)-825(r).

h. Applicant Contact: Christopher D.
Williams. 2501 M Street, N.W..
Washington, DC 20037, (202) 861-1234.

i. FERC Contact: Mr. William Roy-
Harrison, (202) 357-0845.

j. Comment Date: September 27,1990.

k. Description of Project: The project
would have consisted of a series of
dams and diversion structures, with
reservoirs, tunnels, penstocks, conduits,
powerhouses (total installed capacity of
110.4 MW), transmission lines, and
appurtenant facilities.

The licensee states that the project is
not financially feasible to develop at
this time. Therefore, the licensee
requested that its license be terminated.
The licensee has not commenced
construction of the project.

l. This notice also consists of the
following standard paragraphs: B, C, &
D2.

6 a. Type of Application: Transfer of
License.

b. Project No.: 4017-009.

c. Date filed: May 9,1990.

d. Applicant: City of Pittsburgh,
Pennsylvania (Licensee) Pittsburgh
Water and Sewer Authority
(Transferee).

e. Name of Project: Allegheny River
Locks and Dam No. 2.

f. Location: On the Allegheny River in
Allegheny County, Pennsylvania.

g. Filed Pursuant to: Federal Power
Act 16 U.S.C. 791(a)—825(r).

h. Applicant Contact:

Ashley C. Schannauer. Assistant City
Solicitor, Department of Law, City

of Pittsburgh, 313 City-County
Building, Pittsburgh. PA 15219, (412)
255-2009

George W. Jacoby, Esquire, Jacoby &
Cheswick, 1208 Manor Complex, 564
Forbes Avenue, Pittsburgh, PA
15219.

i. FERC Contact: Michael Dees (202)
357-0807.

j. Comment Date: September 24,1990.

k. Description of Project: On May 9.
1990, the licensee and transferee filed a
joint application to transfer the license
for the Allegheny River Lock and Dam
Project No. 4017. The proposed transfer
will not result in any change in the
project. The transferee states that it
would comply with all terms and
conditions of the license. The purpose of
the transfer is to facilitate the financing
of the project.

l. This notice also consists of the
following standard paragraphs: B and C.

7 a. Type of Application: Transfer of
License.

b. Project No.: 4914-006.

c. Date filed: July 6,1990.

d. Applicant: Hammermill Paper
Company.

e. Name of Project: Nicolet Paper
Company Dam Project.

f. Location: On the Fox River, in the
City of DePere, in Brown County,
Wisconsin.

g. Filed Pursuant to: Federal Power
Act 16 U.S.C. 791(a)-825(r).

h. Applicant Contact: William J.
Madden, Jr., Esquire, Bishop, Cook,
Purcell, and Reynolds, 1400 L. Street,

NW, Washington, DC 20005-3502, (202)
371-5700.

i. FERC Contact: Mary C. Golato (202)
357-0804.

j. Comment Date: September 24,1990.

k. Description of Project: Hammermill
Paper Company proposes to transfer the
license for the Nicolet Paper Company
Dam Project No. 4914 to International
Paper Company as part of a merger
between the two parties, which took
effect on November 10,1986.

l. This notice also consists of the
following standard paragraphs: B and C.

8 a. Type of Application: Surrender of
License.

b. Project No.: 8888-007.

c. Date filed: July 16,1990.

d. Applicant: Brookfield Power
Company, Ltd.

e. Name of Project: Oliverian Brook
Project.

f. Location: On Oliverian Brook, in
Grafton County, New Hampshire.

g. Filed Pursuant to: Federal Power
Act 16 U.S.C. 791(a)-825(r).

h. Applicant Contact: Mr. Richard A.
Mauser, 760 Governor's Road,

Brookfield, NH 03872, (603) 522-3427.

i. FERC Contact: Michael Dees (202)
357-0807.

j. Comment Date: September 27,1990.

k. Description of Project: On July 29.
1986, a license was issued to construct,
operate and maintain the Oliverian
Brook Project No. 8888. The project
would consist of: (a) a weir-intake
structure, with a maximum height of four
feet and a length of 36 feet and utilizing
2-foot-high drop Dashboards: (b) a
proposed small reservoir with negligible
storage capacity at 468 feet m.s.L; (c)
two 4-foot-diameter steel penstocks
approximately 300 feet long; (d) a
powerhouse to contain an installed
generating capacity of 450 kW; (e) the
0.48-kV generator leads; (f) the 0.48/
12.5-kV, 500-kVA transformer bank; (g)
a 450-foot-long, 12.5 kV transmission
line; and (h) appurtenant facilities. The
deadline to start project construction
was extended to July 1,1990, on March
30,1988, and has now expired.

l. This notice also consists of the
following standard paragraphs: B, C,
and D2.

9 a. Type of Application: License
Application—Final Amendment.

b. Project No. 9705-001.

c. Date filed: December 23,1985, Final
Amendment filed May 13.1990.

d. Applicant: Bakers Falls
Corporation.

e. Name of Project: Hudson Falls
Project.

f. Location: On the Hudson River in
Saratoga, Washington, and Warren
Counties, New York.

g. Filed Pursuant to: Federal Power
Act 16 U.S.C. 791(a)-825(r).

h. Applicant Contact: Mr. Sanford L.
Hartman. Bakers Falls Corporation, 420
Lexington Avenue, Suite 440, New York.
NY 10170, (212) 986-0440.

i. FERC Contact: Robert Bell (202)
357-0806.

j. Comment Date: October 12,1990.

k. Description of Project: The revised
project would consist of: (1) the existing
1,660-foot-long concrete gravity dam
varying in height from 12 feet to 20 feet;
(2) a reservoir having a surface area of
220 acres with a storage capacity of 410
acre-feet and a normal water surface
elevation of 207 feet msl; (4) a proposed
intake; (5) the existing Moreau Power
Canal; (6) a proposed 125-foot-long, 21-
foot-diameter reinforced concrete power
intake; (7) a proposed powerhouse
containing 2 generating units having a
total installed capacity of 38,600 kW; (8)
a proposed tailrace; (9) a proposed
3.500-foot-long, 115 kV transmission line;
and (10) appurtenant facilities. The
existing facilities are owned by Niagara
Mohawk Power Corporation. The
applicant estimates the average annual

35310

Federal Register / Vol. 55, No. 171 / Tuesday, September 4, 1990 / Notices

generation would be 20,500,000 kWh.

The energy generated would be sold to
Niagara Mohawk Power Corporation.

I. This notice also consists of the
following standard paragraphs: B. C,
and Dl.

10 a. Type of Application: Exemption
from Licensing.

b. Project No.: 10555.001.

c. Date filed: December 14,1989.

d. Applicant: Kenneth M. Grover.

e. Name of Project: Tuck Tape Project.*

f. Location: On the FishkiJ! Creek in
Dutchess County, New York.

g. Filed Pursuant to: Energy Security
Act of 198a Federal Power Act 10 U.S.C,
791 (a}-825(r).

h. Applicant Contact: Kenneth M.
Grover. P.O. Box 530, Croton Falls
Executive Park. Croton Palls. NY 10510.
(914) 277-8000.

i. FERC Contact: Robert Bell, (202)
357-0800.

j. Comment Dote: September 24,1990.

k. Description of Project: The
proposed project would consist of: (1)

.An existing 133-foot-long, 14-fcot-high
quarried stone and concrete dam; (2)
installation of 2-foot-high flashboards;

(3) a reservoir having a surface area 3.5
acres with negligible storage and a
normal water surface elevation of 70
feet msl; (4) an existing intake; (5) an
existing 18-foot-long, 7-foot-diameter
penstock; (6) an existing pow erhouse
containing one new generating unit with
a rated capacity of 350 kW; (7) the
existing tailrace; (8) an existing 2.3-kV
transmission line; and (9) appurtenant
facilities. The estimated average energy
generation is estimated to be 1,740,000
kWh and would be sold to a local utility.

l. This notice also consists of the
following standard paragraphs: A3, A9,
D. C, and D3a.

11a. Type of Filing: Minor License.

b. Project Noj 10927-000.

c. Date Filed: May 2,1990

d. Applicant Scott D. Hciner.

e. Name of Project Salt River
Hydroelectric Power Project.

f. Location: On the Salt River in
Lincoln County, Wyoming and
Bonneville County, Idaho.

g. Filed Pursuant to: Federal Power
Act 18 U.S.C. 791 (aj-825(r).

h. Applicant Contact Scott D. Heiner,
612 Beech Avenue, Kemmerer, Wyoming
83101, (207) 276-6248.

i. Commission Contact. Nanzo T.
Coley, (202) 357-0840.

j. Comment Date: November 1,1990.

k. Description of Project The
proposed project would consist of: (1)

An existing 13,800-foot-long, 15-foot-high
earth-lined inlet canal, which receives
water directly from the Salt River; (2) an
existing ,50-foot-long. 3025-foot-wide, 10-
foot-high concrete inlet headgate; (3)

two existing 44-foot-long, 5-foot-
diameter penstocks and one proposed
44-foot-long, 5-foot-diameter penstock;
(4) an existing powerhouse containing
two existing generating units rated at
300 kW each and one proposed
generating unit rated at 500 kW; (5) an
existing 50-foot-long tailrace; (6) a
proposed 100-foot-long, 2,500 volt
transmission line; and (7) appurtenant
facilities. The estimated average annual
generation for the project is 7,350,000
kWh.

l. Purpose of Project Power produced
at the project will be sold to a local
utility company.

m. This notice also consists of the
following standard paragraphs: A3. A9,
B, C, and Dl.

a. Type of Application: Minor License.

b. Project No.: 10934-000.

c. Date filed: May 4,1990.

d. Applicant: William Ruger, Jr.

e. Name of Project Sugar River II
Project.

f. Location: On the Sugar River in
Sullivan County, New Hampshire.

g. Filed Pursuant to: Federal Power
Act 10 U.S.C, 791 (a)-825{r).

h. Applicant Contact: Mr. William B.
Ruger. Jr. P.O. Box 293, Newport, NH
03773, (603) 863-3300.

i. FERC Contact Robert W. Bell. (202)
357-0806.

j Comment Date: October 12,1990.

k. Description of Project The
Proposed project would consist of: (1) a
proposed 42-foot-long, 6-foot-high
reinforced concrete dam; (2) an
impoundment having a surface area of
0.37 acres with negligible storage and a
water surface elevation of 822 msl; (3) a
proposed 22-foot-wide rectangular
intake; (4) a proposed trapezoidal earth
unlined canal 400 feet long with a
bottom width of 5 feet and a top width
of 25 feet; (5) an existing 9-fcot-deep, 20-
foot-wide and 400-foot-long canal; (6) an
existing 250-foot-long, 7-foot-diameter
concrete penstock; (7) an existing
powerhouse containing 1 generating unit
with an installed capacity of 200 kW; (8)
an existing 75-foot-long 4.16-kV
transmission line: and (9) appurtenant
facilities. The applicant owns the
existing facilities. The applicant
estimates the average annual generation
would be 650,000 kWh. The energy
generated by this project would be sold
to a local utility. The applicant is
seeking benefits under section 210 of the
Public Utility Regulatory Policies Act.

l. This notice also consists of the
following standard paragraphs: A3, A9.
B, C, and Dl.

a. Type of Application: Preliminary
Permit.

b. Project Nou 10938-OOa

c. Date filed: May 21,199a

d. Applicant: Public Resource
Development Associates.

e. Name of Project Grays Landing
Project.

f. Location: On the Monongahela
River in Greene County, Pennsyli'ania.

g. Filed Pursuant to: Federal Power
Act 16 U.S.C 791 (a)-825(r).

h. Applicant Contact Mr. Donald W.
McKee. Public Resource Development
Associates, 217 Scott Drive.

Monroeville, PA 15146, (404) 659-7319.

i. FERC Contact Robert Bell. (202)
357-0806.

j. Comment Date: October 18,1990.

k. Description of Project The
proposed project would utilize the
proposed U.S. Corps of Engineers Grays
Landing Dam and impoundment and
would consist of: 1) a proposed
headrace channel around the west
abutment of the spillway; (2) a proposed
intake structure, (3) a proposed
powerhouse containing two generating
units having a total installed capacity of
6.700 kW; (4) a proposed tailrace
channel; (5) a proposed transmission
line; and (8) appurtenant facilities. The
proposed project would have an average
annual generation of 34,000,000 kWh.

The studies would cost $70,000.

l. Purpose of Project All project
energy' generated would be sold to a
local utility.

m. This notice also consists of the
following standard paragraphs: A3. A7.
A9, Am B, C, and D2.

14a. Type of Application: Preliminary
Permit.

b. Project No- 10944-000.

c. Date filed: June 5,1990.

d. Applicant: Portland General
Electric Company.

e. Name of Project Cripple Creek.

f. Location: In Mount Hood National
Forest, on Cripple Creek, in Clackamas
County, Oregon. Township 6 S Range 6
E.

g. Filed Pursuant to: Federal Power
Act 16 U.S.C. 791(aJ-025(r).

h. Applicant Contact: Ms. Peggy Y.
Fowler, Portland General Electric
Company, 121 SW Salmon Street,
Portland. OR 97204. (503) 464-8401.

i. FERC Contact: Michael Spencer at
(202) 357-357-0846.

j. Comment Date: October 19,1990.

k. Description of Project: The
proposed project would be an
amendment to the existing Oak Grove
Project No. 135 and consist of: (1) a 10-
foot-high dam; (2) a 24-inch-diameter.
3,600-foot-long penstock. This would
enable the Oak Grove project to
increase its capacity by 3,000 kW and its
annual generation by approximately
5,400 MWh. No new access road will be
needed to conduct the studies. The

Federal Register / Vol. 55, No. 171 / Tuesday, September 4, 1090 / Notices

35941

applicant estimates that the cost of the
studies to be conducted under the
preliminary permit would be $200,000.

l. Purpose of Project: Project pow er
would be used by the applicant

m. This notice also consists of the
following standard paragraphs: A5, A 7,
A9, AlO. B, C, and D2.

15a. Type of Application: Preliminary
Permit.

b. Project Noj 10946-000.

c. Date filed: June 7,1990.

d. Applicant: Weeden's Hydro.

e. Name of Project: West Cady Creek.

f. Location: In the Snoqualmie—Mt.
Baker National Forest on West Cady
Creek, in Snohomish County,
Washington. Township 28 N Range 12 E.

g. Filed Pursuant to: Federal Power
Act 16 U.S.C. 791(a)-825(r).

h. Applioant Contact: Mr. Arthur
Weeden. 14450 NE 29th Place. Suite 118,
Bellevue. WA 98007, (206) 881-7826.

i. FERC Contact: Michael Spencer at
(202) 357-0846.

j. Comment Date: October 18,1990.

k. Description of Project: The
proposed project would consist of: (1) a
10-foot-high concrete dam at elevation
2,380 feet (msl); (2) a 6-foot-diameter.
3.2-mile-long penstock: (3) a powerhouse
containing one generating unit with a
capacity of 10,500 kW an estimated
average annual generation of 10.5 GWh;
(4) an 18-mile-long transmission line;
and (5) a 4 mile-long access road to the
powerhouse. No new access road will
be needed to conduct the studies. The
applicant estimates that the cost of the
studies to be conducted under the
preliminary permit would be $200,000.

l. Purpose of Project Project power
would be sold.

m. This notice also consists of the
following standard paragraphs: A5, A7,
A9, AlO, B, C. and D2.

16a. Type of Application: Conduit
Exemption.

b. Project No.: 10947-000.

c. Date filed: June 8,1990.

d. Applicant: City of Longmont,
Colorado.

e. Name of Project: Longmont
1 lydroelectric Plant.

f. Location: On the City of Longmont
water supply system.

g. Filed Pursuant to: Section 30 of the
Federal Power Act, 16 U.S.C. 823(a).

h. Applicant Contact: Mr. Karl F.
Kunili. ill, Krassa. Lindholm, Kumli 8
Madsen, 3050 Broadway, Suite 202,
Boulder, CO 80304, (303) 442-215a

1. FERC Contact Mr. James Hunter,
(202) 357-0843.

j. Comment Date: October 12, 1990.

k. Description of Project The existing
project consists of: (1) a connection to a
30-inch diameter steel water supply
penstock; (2) a 21-foot-wide, 60-fbot-long

powerhouse containing two generating
units rated at 306 ICW and producing an
average annual output of 4.34 GWH; and
(3) a concrete trough tailnice leading to
a 30-inch-diameter water supply
pipeline.

L Purpose of Project The plant is used
for base load power generation.

m. This notice also consists of the
following standard paragraphs: B, C,
and D3b.

17a. Type of Filing: Preliminary
Permit

b. Project No.: 10950-000.

c. Date filed: June 11,1990.

d. Applicant Cascade River Hydro.

e. Name of Project Black Creek
Project

L Location: On Blsck Creek in
Snohomish County, Washington.

g. Filed Pursuant to: Federal Power
Act. 16 U.S.C. 791(a)-825(r).

h. Applicant Contact Bill E. Covin,
1422-130th Avenue N.E., Bellevue,
Washington 98005, (206) 455-0234.

i. Commission Contact: Nanzo T.
Coley, (202) 357-0840.

Comment Date: October 15,1990.

. Description of Project The
proposed project would be located
mostly within Mt Baker-Snoquaimie
National Forest and would consist of: (1)
a proposed 10 foot-high, 50-foot-long
diversion dam; (2) a proposed 11,400-
foot-long, 2-foot-diameter penstock; (3) a
proposed powerhouse containing one
generating unit rated 1.9 MW; (4) a
proposed tailrace: (5) a proposed 21-
mile-long, 34.5-kV transmission line;
and (0) appurtenant facilities. The
estimated average annual energy output
for the project is 7,900.000 KWh. The
applicant estimates the cost of the work
to be performed under the preliminary
permit at $300,000.

1. Purpose of Project Power produced
at the project would be sold to Puget
Sound Power and Light Company.

in. 7 his notice also consists of the
following standard paragraphs: A5, A7.
A9, AlO. B, C, and D2.

18a. Type of Application: Preliminary
Permit.

b. Project No.: 10952-000.

c. Date filed: June 13.1990.

d. Applicant: Nooksack River Hydro.

e. Name of Project: Clearwater Creek.

f. Location: On Clearwater Creek, in
Whatcom County. Washington.
Township 38 N Range 8 E.

g. Filed Pursuant to: Federal Power
Act, 18 U S.C. 791(a)-825(r).

h. Applicant Contact Bill R. Covin,
Hydro West Group, Inc., 1422—130th
Avenue NE, Bellevue, WA. 90005, (200)
455-0234.

i. FERC Contact: Michael Spencer at
(202) 357-0848.

j. Comment Date: November t, 1990.

k. Description of Project: The
proposed project would consist of: (1) a
15-foot-high concrete danr, (2) a 83-inch-
diameter, 8,800-fbot-long penstock; (3) a
powerhouse containing one generating
unit with a capacity of 8,500 kW and an
estimated average annual generation of
25 GWh; (4) a 12-mile-long transmission
line; and (5) access road9 with a total
length of 500 feet to service the
powerhouse and diversion sites.

No new access road will be needed to
conduct the studies. The applicant
estimates that the cost of the studies to
he conducted under the preliminary
permit would be $300,000.

L Purpose of Project: Project power
would be sold.

m. This notice also consists of the
following standard paragraphs: A5, A7,
A9, AlO. B. C, and D2.

19a. Type of application: Preliminary
Permit.

b. Project No.: 10953-000.

c. Date filed: June 13,1990.

d. Applicant Washington Hydro
Development Company.

e. Nome of Project Mill Creek.

f. location: On Mill Creek, in Skagit
County. Washington. Township 35 N
Range 7 E.

g. Filed Pursuant to: Federal Power
Act, 16 U.S.C. 791(a)-825(r).

h. Applicant Contact Bill E. Covin,
Hydro West Group, Inc^, 1422—130th
Avenue NE., Bellevue, WA. 98005, (206)
455-0234.

i. FERC Contact: Michael Spencer at
(202) 357-0846.

j. Comment Dote- October 18,1990.

k. Description of Project: The
proposed project would consist of: (1) a
13-foot-high concrete dam; (2) a 30-inch-
diameter, 8.700-foot-long penstock; (3) a
powerhouse containing one generating
unit with a capacity of 4.200 kW and an
estimated average annual generation of
15.8 GWh; (4) a 10-mile-long
transmission Line: and (5) access road3
with a total length of 2.700 feet to
service the powerhouse and diversion
sites.

No new access road will be needed to
conduct the studies. The applicant
estimates that the cost of the studies to
be conducted under the preliminary
pei mil would be $300,000.

l. Purpose of Project: Project power
would be sold.

m. This notice also consists of the
following standard paragraphs: A5, A7,
A9, AlO, B. C. and D2.

20a. Type of Application: Preliminary
Permit.

b. Project No.: 10956-000.

c. Date filed: June 13.1990.

d. Applicant Washington Hydro
Development Company.

35942

Federal Register / Vol, 55, No. 171 / Tuesday. September 4, 1990 / Notices

e. Name of Project: Park Creek.

f. Location: In Mount Baker National
Forest, on Park Creek, in Whatcom
County, Washington. Township 38 N
Range 8 E.

g. Filed Pursuant to: Federal Power
Act. 16 U.S.C. 791(a)-825(r).

h. Applicant Contact: Bill E. Covin,
Hydro West Group, Inc.. 1422-130th
Avenue NE.. Bellevue, WA 98005, (206)
455-0234.

i. FERC Contact: Michael Spencer at
(202) 357-0846.

j. Comment Date: October 28,1990.

k. Description of Project: The
proposed project would consist of: (1) a
13-foot-high concrete dam; (2) a 54-inch-
diameter. 12,000-foot-long penstock; (3) a
powerhouse containing one generating
unit with a capacity of 6,500 kW and an
estimated average annual generation of
25 GWh; (4) a 9.25-mile-long
transmission line: and (5) access roads
with a total length of 10,000 feet to
service the powerhouse and diversion
sites.

No new access road will be needed to
conduct the studies. The applicant
estimates that the cost of the studies to
be conducted under the preliminary
permit would be $300,000.

l. Purpose of Project: Project power
would be sold.

m. This notice also consists of the
following standard paragraphs: A5, A7,
A9, A10, B, C. and D2.

21a. Type of Application: Preliminary
Permit.

b. Project No.: 10959-000.

c. Date filed: June 18,1990.

d. Applicant: Clinton Pumped Storage
Corporation.

e. Name of Project: Lyon Mountain
Water Power Project.

f. Location: On Brandy Brook, in the
town of Dannemora, in Clinton County,
New York.

g. Filed Pursuant to: Federal Power
Act, 16 U.S.C. 791(a)-825(r).

h. Applicant Contact: Mr. Ingolf
Hermann, Independent Hydro
Developers. 1000 Shelard Parkway—
Suite 404, Minneapolis, MN 55428.

i. FERC Contact: Mary C. Galato (tag),
(202) 357-0804.

j. Comment Date: October 12,1990.

k. Description of Project: The
proposed project would consist of the
following facilities: (1) a new 9.700-foot-
long circular embankment forming the
upper reservoir for the project; (2) an 18-
inch-diameter, reinforced concrete
penstock connecting the upper reservoir
with the underground powerhouse; (3)
an underground, reinforced concrete
powerhouse constructed at an
approximate elevation of 400 feet mean
sea level and housing two 250-megawatt
generating units; (4) a lower reservoir

that would use the existing features of
the Lyon Mountain iron mine; (5) a 2.5-
mile-long transmission line
interconnecting with an existing 230-
kilovolt transmission facility; and (6)
appurtenant facilities. The applicant
estimates the average annual generation
would be 657 gigawatthours, and that
the cost of the studies would be
approximately $850,000. Part of the
project lands are owned by the town of
Dannemora. The applicant proposes to
conduct a geotechnical study to identify
major formations and geologic features
within the project boundary. Several
borings would be located at the
powerhouse and penstock. However, the
borings would be located at areas which
are accessible from existing roadways
or those which would cause minimal
environmental disturbance.

1. This notice also consists of the
following standard paragraphs: A5, A 7,
A9, A10, B, C, and D2.

22a. Type of Application: Preliminary
Permit.

b. Project No.: 10963-000.

c. Date filed: June 22,1990.

d. Applicant: Portland General
Electric Company.

e. Name of Project: South Fork Cripple
Creek.

f. Location: In Mount Hood National
Forest, on South Fork Cripple Creek, in
Clackamas County, Oregon. Township 5
S Range 6 E.

g. Filed Pursuant to: Federal Power
Act 16 USC 791(a)-825(r).

h. Applicant Contact Ms. Peggy Y.
Fowler, Portland General Electric
Company, 121 SW Salmon Street,
Portland, OR 97204, (503) 464-8401.

i. FERC Contact: Michael Spencer at
(202) 357-0846.

j. Comment Date: October 18,1990.

k. Description of Project: The
proposed project would be an
amendment to the existing Oak Grove
Project No. 135 and consist of: (1) an 10-
foot-high dam; (2) a 15-inch-diameter,

1.000-foot-long penstock. This would
enable the Oak Grove project to
increase its capacity by 600 kW and its
annual generation by approximately
1.577 MWh.

No new access road will be needed to
conduct the studies. The applicant
estimates that the cost of the studies to
be conducted under the preliminary
permit would be $200,000.

l. Purpose of Project: Project power
would be used by the applicant.

m. This notice also consists of the
following standard paragraphs: A5, A7.
A9, A10, B, C. and D2.

23a. Type of Application: Preliminary
Permit.

b. Project No.: 10964-000.

c. Date filed: June 22.1990.

d. Applicant: Portland General
Electric Company.

e. Name of Project: Bull Creek.

f. Location: In Mount Hood National
Forest, on Bull Creek, in Clackamas
County, Oregon. Township 5 S Range 6
E.

g. Filed Pursuant to: Federal Power
Act 16 USC 791(a)-825(r).

h. Applicant Contact Ms. Peggy Y.
Fowler, Portland General Electric
Company, 121 SW Salmon Street,
Portland, OR 97204, (503) 464-8401.

i. FERC Contact: Michael Spencer at
(202) 357-0846.

j. Comment Date: October 18,1990.

k. Description of Project The
proposed project would be an
amendment to the existing Oak Grove
Project No. 135 and consist of: (1) an 5-
foot-high dam; and (2) a 8-inch-diameter,
1,000-foot-long penstock. This would
enable the Oak Grove project to
increase its capacity by 180 kW and its
annual generation by approximately
262.8 MWh.

No new access road will be needed to
conduct the studies. The applicant
estimates that the cost of the studies to
be conducted under the preliminary
permit would be $77,000.

l. Purpose of Project: Project power
would be used by the applicant.

m. This notice also consists of the
following standard paragraphs: A5, A 7,
A9. A10, B, C, and D2.

24 a. Type of Application: Preliminary
Permit.

b. Project No.: 10966-000.

c. Date filed: July 3.1990.

d. Applicant Washington Hydro
Development Company.

e. Name of Project: Pressentin Creek.

f. Location: In Mount Baker National
Forest, on Pressentin Creek, in Skagit
County, Washington. Township 35 N
Range 8 E.

g. Filed Pursuant to: Federal Power
Act, 16 U.S.C. 791(a)-825(r).

h. Applicant Contact: Mr. Bill E.

Covin, Hydro West Group, Inc., 1422—
130th Avenue NE, Bellevue, WA 98005,
(202) 455-0234.

i. FERC Contact: Michael Spencer at
(202)357-0846.

j. Comment Date: October 18,1990.

k. Description of Project: The
proposed project would consist of: (1)
two 10-foot-high concrete dams, one on
Pressentin Creek and one on an
unnamed tributary; (2) a 48-inch-
diameter, 20,000-foot-long penstock; (3) a
powerhouse containing one generating
unit with a capacity of 10,300 kW and an
estimated average annual generation of
40 GWh; (4) a 12.5-mile-long
transmission line: (5) a 12,900-foot-long
access road to service the diversion site;

Federal Register / Vol. 55. No. 171 / Tuesday, September 4 f 1990 / Notices

35913

ami (6) a 200-foot-long tram to service
the powerhouse.

No new access road will be needed to
conduct the studies. The applicant
estimates that the cost of the studies to
be conducted under the preliminary
permit would be $300,000.

l. Purpose of Project' Project power
would be sold.

m. This notice also consists of the
following standard paragraphs: A5. A7,
A9, Am B, C. and D2.

25 a. Type of Application: Conduit
Exemption.

b. Project No.: 10973-000.

c. Date filed: July 16.1990.

d. Applicant Denver Board of Water
Commissioners.

e. Name of Project: Hillcrest
Hydroelectric Project

f. Location: On conduit 27 of the
Hillcrest Reservoir and Pumping station,
in Denver County, Colorado.

g. Filed Pursuant to: Section 408 of the
Energy Security Act of 1980 (16 U.S.C.
2705 and 2708 as amended).

h. Applicant Contact: Mr. Jeffrey
Stevens, Black and Veatch, 1400 South
Potomac Street, Suite 200, Aurora, CO
80012, Telephone: (303) 671-4200.

i. FERC Contact Mr. William Roy-
Harrison. (202) 357-0845.

j. Comment Dale: October 18,1990.

k. Description of Project: The
proposed project would use the existing
conduit 27 of the Denver Board of Water
Commissioners’ domestic water
distribution system, and would consist
of a powerhouse containing a generating
unit with a rated capacity of 2MW. The
average annual energy generation would
be 12.300.000 kWh.

l. This notice also consists of the
following standard paragraphs: A3. A9,
B, C, and D3B.

a. Type of Application: Preliminary
Permit.

b. Project No.: 10974-000.

c. Dote filed: July 23.1990.

d. Applicant: Southeastern Hydro-
Power, Inc.

e. Name of Project: Tar River Hydro
Project.

f. Location: On the Tar River in Nash
County, North Carolina.

g. Filed Pursuant to: Federal Peer Act
16 U.S.C. 7 91 (a)-825(r).

h. Applicant Contact Charles B.
Mierek. 5250 Clifton-Glendale Road,
Spartanburg, SC 29302-0211, (803) 579-
4405.

i. FERC Contact: Ed Lee (202) 357-
0809.

j. Comment Dale: October 18,1990.

k. Description of Project: The
proposed project would consist of: (1)
the existing 860-foot-long and 40-foot-
high concrete dam; (2) existing 1,400-
acre reservoir; (3) a proposed intake

structure; (4) a new concrete
powerhouse housing a single generating
unit for a total installed capcity of 1,900
kw; (5) a proposed tailrace; (6) a new
17.4-kV or equivalent transmission line;
and (7) appurtenant facilities. The
Applicant estimates that the average
annual generation would be 7.5 GWh.
The site is owned by the City of Rocky
Mount, North Carolina. The Applicant
proposes that all power generated will
be sold to a local utility company.

Applicant estimates that the cost of
the work to be performed under the
terms of the permit would be $75,000.

1. This notice also consists of the
following standard paragraphs: A5, A7.
A9, A10. B, C. and D2.

a. Type of Application: Preliminary
Permit.

b. Project No.: 10976-000.

c. Date Filed: July 26,1990.

d. Applicant Alleghany County,
Virginia.

e. Name of Project Gathright Hydro
Project.

f. Location: On the Jackson River in
Alleghany, County, Virginia.

g. Filed Pursuant to: Federal Power
Act 16 U.S.C. 791 (a)-825(r).

h. Applicant Contact Macon C.
Sammons, Jr., County Administrator,
P.O Box 917, Covington, VA 24426. (703)
692-4918.

i. FERC Contact Ed Lee (lag) (202)
357-0809.

j. Comment Dale: September 27,1990.

k. Competing Application: Project no.
10920-000. Date Filed: April 2,1990
Notice Comment Date; June 27,1990.

l. Description of Project: The
applicant proposes to utilize an existing
dam under the jurisdiction of the U.S.
Army Corps of Engineers. The proposed
project would consist of: (1) an intake
tower: (2) a powerhouse containing two
2-MW generating units for an mstailed
capacity of 4 MW; (3) a 8,450-foot-long,
46-kV transmission line; and (4J
appurtenant facilities. Applicant
estimates that the cost of the work to be
performed under the terms of the permit
would he $100,000 and that the project
average annual energy output would be
19.5 GWh. Energy produced at the
project would be sold to B.A.R.C
Electric Cooperative or another local
utility company.

m. This notice also consists of the
following standard paragraphs: A8, A9,
A10, B, C, and D2.

28 a. Type of Application: Preliminary
Permit

b. Project No.: 10978-000.

c. Dote Filed: July 27,1990.

d. Applicant North Unit Irrigation
District.

e. Name of Project Wickiup Power
Project.

f. Location: At the existing Bureau of
Reclamation Wickiup Dam and
Reservoir on the Deschutes River near
Bend in Deschutes County, Oregon.

g. Filed Pursuant to: Federal Power
Act 18 U.S.C. 791(a}-825(r).

h. Contact Person: Mr. Harold V.
Schonneker, 2024 NW Beach Street,
Madras. OR 97741, (503) 475-3625.

1. FERC Contact Ms. Julie Bemt, (202)
357-0839.

j. Comment Date: October 26,1990.

k. Description of Project The
proposed project would consist of; (1) a
96-inch-diameter. 79-foot-long steel
penstock and a 96-inch-diameter. 67-
foot-long steel penstock connected to
existing outlet works and converging
into a single 120-inch-diameter, 21-foot-
long penstock; (2) a powerhouse
containing one generating unit with a
rated capacity of 7,000 kW; (3) a 38-foot
wide concrete tailrace; and (4) a 9.1-
mile-long transmission line. The
applicant estimates the average annual
energy production to be 26.1 GWh and
the cost of the work to be performed
under the preliminary permit to be
$30,(XX).

l. Purpose of Project The power
produced would be sold to a local power
company.

ra. This notice also consists of the
following paragraphs: A5, A7, A9, A10,

B, C and D2.

Standard Paragraphs

A3. Development Application—Any
qualified development applicant
desiring to file a competing application
must submit to the Commission, on or
before the specified comment date for
the particular application, a competing
development application, or a notice of
intent to file such an application.
Submission of a timely notice of intent
allows an interested person to file the
competing development application no
later than 120 days after the specified
comment date for the particular
application. Applications for preliminary
permits will not be accepted in response
to this notice.

A5. Preliminary Permit—Anyone
desiring to file a competing application
for preliminary permit for a proposed
project must submit the competing
application itself, or a notice of intent to
file such an application, to the
Commission on or before the specified
comment date for the particular
application (see 18 CFR 4.36).

Submission of a timely notice of intent
allows an interested person to file the
competing preliminary permit
application no later than 30 days after
the specified comment date for the
particular application. A competing

35944

Federal Register / Vol. 55, No. 171 / Tuesday, September 4, 1990 / Notices

preliminary permit application must
conform with 18 CFR 4.30(b)(1) and (9)
and 4.36.

A7. Preliminary Permit—Any qualified
development applicant desiring to file a
competing development application
must submit to the Commission, on or
before the specified comment date for
the particular application, either a
competing development application or a
notice of intent to file such an
application. Submission of a timely
notice of intent to file a development
application allows an interested person
to file the competing application no later
than 120 days after the specified
comment date for the particular
application. A competing license
application must conform with 18 CFR
4.30(b)(1) and (9) and 4.36.

A8. Preliminary Permit—Public notice
of the filing of the initial preliminary
permit application, which has already
been given, established the due date for
filing competing preliminary permit and
development applications or notices of
intent. Any competing preliminary
permit or development application or
notice of intent to file a competing
preliminary permit or development
application must be filed in response to
and in compliance with the public notice
of the initial preliminary permit
application. No competing applications
or notices of intent to file competing
applications may be filed in response to
this notice. A competing license
application must conform with 18 CFR
4.30(b)(1) and (9) and 4.36.

A9. Notice of intent—A notice of
intent must specify the exact name,
business address, and telephone number
of the prospective applicant, include an
unequivocal statement of intent to
submit, if such an application may be
filed, either (1) a preliminary permit
application or (2) a development
application (specify which type of
application), and be served on the
applicant(s) named in this public notice.

A10. Proposed Scope of Studies under
Permit—A preliminary permit, if issued,
does not authorize construction. The
term of the proposed preliminary permit
would be 36 months. The work proposed
under the preliminary permit would
include economic analysis, preparation
of preliminary engineering plans, and a
study of environmental impacts. Based
on the results of these studies, the
Applicant would decide whether to
proceed with the preparation of a
development application to construct
and operate the project.

B. Comments, Protests, or Motions to
Intervene—Anyone may submit
comments, a protest, or a motion to
intervene in accordance with the
requirements of the Rules of Practice

and Procedure, 18 CFR 385.210, .211,

.214. In determining the appropriate
action to take, the Commission will
consider all protests or other comments
filed, but only those who file a motion to
intervene in accordance with the
Commission's Rules may become a
party to the proceeding. Any comments,
protests, or motions to intervene must
be received on or before the specified
comment date for the particular
application.

C. Filing and Service of Responsive
Documents—Any filings must bear in all
capital letters the title "COMMENTS”.
"NOTICE OF INTENT TO FILE
COMPETING APPLICATION”,
"COMPETING APPLICATION”,
"PROTEST”. "MOTION TO
INTERVENE", as applicable, and the
Project Number of die particular
application to which the filing refers.
Any of the above-named documents
must be filed by providing the original
and the number of copies provided by
the Commission’s regulations to: The
Secretary. Federal Energy Regulatory
Commission, 825 North Capitol Street,
N.E., Washington, D.C. 20426. An
additional copy must be sent to Dean
Shumway, Director. Division of Project
Review, Federal Energy Regulatory
Commission. Room 1027 (810 1st), at the
above-mentioned address. A copy of
any notice of intent, competing
application or motion to intervene must
also be served upon each representative
of the Applicant specified in the
particular application.

Dl. Agency Comments—States,
agencies established pursuant to federal
law that have the authority to prepare a
comprehensive plan for improving,
developing, and conserving a waterway
affected by the project, federal and state
agencies exercising administration over
fish and wildlife, flood control,
navigation, irrigation, recreation,
cultural or other relevant resources of
the state in which the project is located,
and affected Indian tribes are requested
to provide comments and
recommendations for terms and
conditions pursuant to the Federal
Power Act as amended by the Electric
Consumers Protection Act of 1986, the
Fish and Wildlife Coordination Act, the
Endangered Species Act, the National
Historic Preservation Act, the Historical
and Archeological Preservation Act, the
National Environmental Policy Act, Pub.
L. No. 88-29, and other applicable
statutes. Recommended terms and
conditions must be based on supporting
technical data filed with the
Commission along with the
recommendations, in order to comply
with the requirement in section 313(b) of
the Federal Power Act, 16 U.S.C. Section

8251(b), that Commission findings as to
facts must be supported by substantial
evidence.

All other federal, state, and local
agencies that receive this notice through
direct mailing from the Commission are
requested to provide comments pursuant
to the statutes listed above. No other
formal requests will be made. Responses
should be confined to substantive issues
relevant to the issuance of a license. A
copy of the application may be obtained
directly from the applicant. If an agency
does not respond to the Commission
within the time set for filing, it will be
presumed to have no comments. One
copy of an agency's response must also
be sent to the Applicant’s
representatives.

D2. Agency Comments—Federal,
state, and local agencies are invited to
file comments on the described
application. A copy of the application
may be obtain by agencies directly from
the Applicant. If an agency does not file
comments within the time specified for
filing comments, it will be presumed to
have no comments. One copy of an
agency’s comments must also be sent to
the Applicant’s representatives.

D3a. Agency Comments—The U.S.

Fish and Wildlife Service, the National
Marine Fisheries Service, and the State
Fish and Game agency(ies) are required,
for the purposes set forth in section 408
of the Energy Security Act of 1980, to file
within 60 days from the date of issuance
of this notice appropriate terms and
conditions to protect any fish and
wildlife resources or to otherwise carry
out the provisions of the Fish and
Wildlife Coordination Act. General
comments concerning the project and its
resources are requested; however,
specific terms and conditions to be
included as a condition of exemption
must be clearly identified in the agency
letter. If an agency does not file terms
and conditions within this time period,
that agency will be presumed to have
none. Other Federal, state and local
agencies are requested to provide any
comments they may have in accordance
with their duties and responsibilities. No
other formal requests for comments will
be made. Comments should be confined
to subtantive issues relevant to the
granting of an exemption. If an agency
does not file comments within 60 days
from the date of issuance of this notice,
it will be presumed to have no
comments. One copy of an agency’s
comments must also be sent to the
Applicant’s representatives.

D3b. Agency Comments—The
Commission requests that the U.S. Fish
and Wildlife Service, the National
Marine Fisheries Service, and the State

Federal Register / Vol. 55, No. 171 / Tuesday, September 4, 1990 / Notices

35943

Fish and Game agency (ies), for the
purposes set forth in section 408 of the
Energy Security Act of 1980, File within
45 days from the date of issuance of this
notice appropriate terms and conditions
to protect any fish and wildlife
resources or to otherwise carry out the
provisions of the Fish and Wildlife
Coordination Act. General comments
concerning the project and its resources
are requested; however, specific terms

i.nd conditions to be included as a
condition of exemption must be clearly
identified in the agency letter. If an
agency does not file terms and
conditions within this time period, that
agency will be presumed to have none.
Other Federal, state and local agencies
are requested to provide any comments
they may have in accordance with their
duties and responsibilities. No other
formal requests for comments will be
made. Comments should be confined to
substantive issues relevant to the
granting of an exemption. If an agency
does not file comments within 45 days
from the date of issuance of this notice,
it will be presumed to have no
comments. One copy of an agency’s
comments must also be sent to the
Applicant’s representatives.

Dated; August 28,1990, Washington. DC.
Lois D. Cashel!,

Secretary.

|FR Doc. 90-20682 Filed 8-31-60; 8.45 am)

B'LUNQ CODE 6717-01-M

1 Docket Nos. CP90-2002-019, et at)

Northwest Pipeline Corporation, et ai. f
Natural Gas Certificate Filings

Take notice that the following filings
have been made with the Commission:

1 . Northwest Pipeline Corp.

(Docket No. CP9O-2019-000j
August 24. 1990.

Take notice that on August 20.1990,
Northwest Pipeline Corporation
(Northwest), 295 Chipeta Way, Salt Lake
City. Utah 84108, filed in Docket No.
CI'SO^Ol9-000 a request pursuant to
§ 157.205 of the Commission’s
Regulations under the Natural Gas Act
(18 CFR 157.205) for authorization to
construct and operate a new delivery'
meter, to be named the Columbia
Aluminum Meter, in Klickitat County.
Washington for the delivery' of
transportation gas to the Columbia
Aluminum Corporation (Columbia
Aluminum) under Northwest’s blanket
certificate issued in Docket No. CP82-
433-000 pursuant to section 7 of the
Natural Gas Act. all as more fully set
forth in the request which is on file with

the Commission and open to public
inspection.

Northwest slates that Columbia
Aluminum presently purchases natural
gas on the spot-market and arranges for
Northwest and Northwest Natural Gas
Company (Northwest Natural), a local
distribution company, to provide
transportation service to its plant.
Northwest transports and delivers gas to
Northwest Natural at the John Day Dam
Meter Station in Klickitat County,
Washington. Northwest Natural then
transports the gas through a 5.3 mile
segment of its distribution pipeline from
the meter station to Columbia
Aluminum's plant.

Northwest further states that
Columbia Aluminum has requested a
direct delivery connection from
Northwest which would be located
adjacent to Northwest’s existing John
Day Dam Meter Station in Klickitat
County. Washington capable of
delivering up to 300,000 MMBtus
annually to pipeline facilities to be
constructed by Columbia Aluminum as
part of its nonjurisdictional plant
facilities. Northwest asserts that this
requested new delivery meter would
provide Columbia Aluminum with an
economic alternative to the
transportation service currently
provided by Northw est Natural.
Columbia Aluminum would save
approximately $320,000 annually in
transportation charges by Northwest
Natural, it is stated.

Northwest estimates initial snnual
and peak day volumes to be 197.000
MMBtu and 750 MMBtu, respectively.

Comment date: October 9,1990, in
accordance with Standard Paragraph G
at the end of this notice.

2 . Southern Natural Gas Co.

| Docket No. CP90-20HMX)0|

August 23.1990.

Take notice that on August 17,1990,
Southern Natural Gas Company
(Southern), P.O. Box 2563, Birmingham,
Alabama 35202-2563, filed in Docket No.
CP90-2010-000 a request pursuant to
5 157.205 of the Commission s
Regulations under the Natural Gas Act
(18 CFR 157.205) for authorization to
construct, install and operate pressure
legulators and appurtenant facilities and
reduce the delivery pressure at an
existing delivery point for an existing
customer under Southern’s blanket
certificates issued in Docket No. CPB2-
40G-000 pursuant to section 7 of the
Natural Gas Act, all as more fully set
forth in the request which is on file wdth
the Gimmission and open to public
inspection.

Southern states that it provides
natural gas service to the City of

Ciaxton, Georgia (Claxton) at the
delivery point located near Mile Post
59.106 on Southern’s Savannah Lateral
Line in Georgia Military District 9,
Effingham County. Georgia. Southern
states further that due to numerous
operational problems, Claxton has
requested that Southern construct, at the
delivery point, replacement facilities
consisting of pressure regulators and
appurtenant equipment on Southern’s
existing meter site.

Additionally, Southern slates that
Claxton has requested that Southern
decrease the contract delivery pressure
from mainline pressure to 300 psig
contract delivery pressure as specified
in Exhibit A to the Service Agreement.
This decrease in pressure, it is said,
would not result in any change in
Claxton’s contract demand and is
permitted by section 3 of the General
Terms and Conditions contained in
Southern’s FERC Gas Tariff, Sixth
Revised Volume No. 1.

Southern states the construction of
new facilities and revision of the
delivery pressure would improve
operational efficiency and would
enhance Claxton’s ability to provide
reliable service.

Comment date: October 9,1990, in
accordance with Standard Paragraph G
at the end of this notice.

3 . Florida Gas Transmission Co.

(Docket No. CP90-2027-000]

August 24,1990.

Take notice that on August 21,1990,
Florida Gas Transmission Company
(FGT), 1400 Smith Street, P.O. Box 1188,
Houston, Texas 77251-1188, filed in
Docket No. CP90-2027-000 a prior notice
request pursuant to § § 157.205 and
157.216 of the Commission's Regulations
under the Natural Gas Act for
authorization to abandon certain sales
facilities previously used to provide
natural gas service to White Packing
Company (White Packing), an end-user,
under its blanket certificate issued in
Docket No. CP82-553-000 pursuant to
section 7 of the Natural Gas Act, all as
more fully set forth in the request that is
on file with the Commission and open to
public inspection.

FGT proposes to abandon by sale to
West Florida Natural Gas Company
(West Florida) approximately 0.6 mile of
6 inch and 420 feet of 2-inch lateral and
to abandon the related White Packing
meter station and appurtenant facilities.
The facilities are located in Marion
County, Florida. FGT states that White
Packing has moved from the property.

FGT states that the laterals would be
sold to West Florida for future use. and
the remaining reusable facilities would

35946

Federal Register / Vol. 55, No. 171 / Tuesday. September 4. 1990 / Notices

be returned to inventory. FCT states
that the proposal would not result in any
abandonment of service to any of FGTs
existing customers.

Comment date: October 9.1990, in
accordance with Standard Paragraph C
at the end of this notice.

4. Texas Eastern Transmission Co.

| Docket No. CP90-2018~O0O|

August 24,1990.

Take notice that on August 20. 1990.
Texas Eastern Transmission
Corporation (Texas Eastern). Post Office
Box 2521. Houston, Texas 77252-2521.
Bled in Docket No. CP90-2018-000 a
request pursuant to §§157.205 and
284.223 of the Commission's Regulations
under the Natural Gas Act (18 CFR
157.205) and the Natural Gas Policy Act
(18 CkTt 284 223) for authorization to
transport natural gas for FEC Marketing,
Inc. (FEC)* a broker of natural gas. under
Texas Eastern’s blanket certificate
issued in Docket No. Cl’aa-l 36-000. as
amended in Docket No. CP88~136~007,
pursuant to section 7. of the Natural Gas
Act. all as more fully set forth in the
request which is on file with the
Commission and open to public
inspection.

Texas Eastern proposes to transport
up to 200,000 MMBtu of natural gas
equivalent per day on an interruptible
basis on behalf of FEC pursuant to a
transportation agreement dated April 23.
1990. between Texas Eastern and FEC.
Texas Eastern would receive the gas at
existing receipt points on its system and
deliver equivalent volumes, less
applicable shrinkage, at existing
delivery points on its systems in
Louisiana, Illinois, Tennessee,
Pennsylvania, Indiana and New York.

Texas Eastern states that the
estimated daily and annual quantities
would be 200.000 MMBtu and 73.000.000
MMBtu, respectively. Service under
§ 284.223(a) commenced on |une 14.

1990. as reported in Docket No. ST90-
3796-000, it is stated.

Comment date: October 9. 1990* in
accordance with Standard Paragraph G
at the end of this notice.

5. Equi trails. Inc., and Midwestern Gas
Transmission Co.

[Docket Nos. CT90-2015-000, CP9O-2016-000
and CP90-2017-000]

August 24. 1990

Take notice that on August 20,1990,
the above listed companies filed in the
respective dockets prior notice requests
pursuant to §§157.205 and 284.223 of the
Commission’s Regulations under the
Natural Gas Act for authorization to
transport natural gas on behalf of
various shippers under their blanket
certificates issued pursuant to section 7
of the Natural Gas Act. all as more fully
set forth in the prior notice requests
which are on file with the Commission
and open to public inspection. 1

A summary of each transportation
service which includes the shippers
identity, the peak day. average day and
annual volumes, the receipt point(s), the
delivery point(s). the applicable rate
schedule, and the docket number and
service commencement date of the 120-
day automatic authorization under
§ 284.223 of the Commission’s
Regulations is provided in the attached
appendix.

Comment date: October 9. 1990. in
accordance with Standard Paragraph G
at the end of this notice.

1 These prior nolice requests ure not

consolidated

Docket No (date

Applicant

Sripper name

1

Peak day 1
average
annuel

Points Of

Start up date, rate
schedule

Related dockets >

tiled)

Receipt

Delivery

CP90 2015-000
(6 20-90)

Eqmtrans Inc

Virginia Electnc

& Power
Company

19,882
19,88 2
3.657.500

PA __

PA ..

7-19-90, FTS ..

CP86-553-000,
ST90-4244-000

CP90-2016-000

Midwestern Gas

Uncorp Energy.

100,000Dt

Off-Shore LA 6 TX.

IN. IL. TN. PA, TX.

7-2-90. IT_

CP90-174-000.

(8-20-90)

Transmission

Company

Inc

100.000D1

35.500.00001

LA. TX. MA. NY.
NJ. MS, PA. WV.
TN, CT. NH Rf.

AL, KY.OH

LA MS. CT. AL.
Aft. Ml, Wl. IA.

MA. OK. WV

ST90-4150-000

CP 90- 20 \ 7-000
(8-20-90)

Midwestern Gas
Transmission
Company

Fnirade

Corporation

150.0CODt

150,00001

54.750.00001

TN. IL IN. PA.

IL IN. MS. PA. KY
LA. OH. MA KY.

TN

7-1-90. IT .

CP90-174-000.
ST90-4125-000

‘ Quantities vo shown m MMBtu unless otherwise indicated.

foe CP docket corresponds to applicant's blanket transportation certificate H an ST docket « shown, 120-day transportation service was reported in it

6. Northern Natural Gas Co. and
Colorado Interstate Gas Ca

(Docket Nos. 0*90-2031-000. CP90-20.l2-axi
and CP90-2033-000|

August 24. 1990.

Take notice that Applicants filed in
the respective dockets prior notice
requests pursuant to §§ 157.205 and
284.223 of the Commission’s Regulations
under the Natural Gas Act for
authorization to transport natural gas on
behalf of various shippers under the
blanket certificates issued pursuant to
section 7 of the Natural Gas Act* all as
more fully set forth in the requests that

are on file with the Commission arid
open to public inspection. 1

Information applicable to each
transaction, including the identity of the
shipper, the type of transportation
service, the appropriate transportation
rate schedule, the peak day. average day
and annua) volumes, and the initiation
service dates and related docket
numbers of the 120-day transactions
under Section 284.223 of the
Commission’s Regulations, has been
provided by Applicant and is

* THexe prior nutica request* are not
consolidated

summarized in the attached appendix.

Applicant states that each of the
proposed sendees would be provided
under an executed transportation
agreement, and that Applicant would
charge the rates and abide by the terms
and conditions of the referenced
transportation rate schedules.

Comment date: October 9. 1990, in
accordance with Standard Paragraph G
at the end of this notice.

Applicant: Northern Natuial Gas
Company, 1400 Smith Street. P.O. Box
1188. Houston. TX 77251-138.

Blanket Certificate Issued in Docket
No. CP86-435-000.

Federal Register / Vol. 55. No. 171 / Tuesday. September 4, 1990 / Notices

35947

Docket No. (date filed)

Shipper name

Peak day 1
avg. annual

Po*nt8 of

Start up date rate

Related * dockets

Receipt

Delivery

schedule

CP90-2C31-000 (8-22-
90)

CP90-2032-000 (8-22-
90)

Panda Inr

500,0C0
375.000
182,500.000
20,000
15.000
7,300.000

various —..

Offshore TX ....

various.

7-C3-90 IT-1.

ST90-3940-000.

Eron Gas Marketing, Inc...

—

TX_.......

8-01-90 FT-1-

ST90-4243-000.

1 Quantities are 9 hown in MM3tu unless otherwise Indicated.

* If an ST docket is shown, 120-day transportation service was reported in it

Applicant: Colorado Interstate Gas Blanket Certificate Issued in Docket

Company, Post Office Box 1087, No. CP66-589-OnO.

Colorado Springs, CO 80944.

Docket No. (date Tiled)

Shipper name

Peak day *
avg annual

Points of

Start up date rate
schedule

D a/ 4 3 r»L

Receipt

Delivery

nSioiGu OOCwGiS

CP90-2033-000 (8-22-

90)

Grand Valley Gas Compa¬
ny.

10.000

5.000

1,750.000

WY...

WY..1—

5-25-90 Tt-1 ..

ST90-3285-000.

• Quantities are shown in Mcf unless otherwise indicated.

7. Texas Gas Transmission Corp.

[Docket No. CP90-2025-000]

August 24.1990.

Take notice that Texas Gas
Transmission Corporation, 3800
Frederica Street, Owensboro, Kentucky
42301, (Applicant) filed in the above-
referenced docket a prior notice request
pursuant to 55 157.205 and 284.223 of the
Commission's Regulations under the
Natural Gas Act for authorization to

transport natural gas on behalf of a
shipper under its blanket certificate
issued in Docket No. CP88-686-000,
pursuant to section 7 of the Natural Gas
Act, ail as more fully set forth in the
requests that are on file with the
Commission and open to public
inspection.

Information applicable to each
transaction, including the identity of the
shipper, the type of transportation
service, the appropriate transportation

rate schedule, the peak day, average day
and annual volumes, and the initiation
service dates and related ST docket
numbers of the 120-day transactions
under 5 284.223 of the Commission’s
Regulations, has been provided by
Applicant and is summarized in the
attached appendix.

Comment date: October 9,1990, in
accordance with Standard Paragaph G
at the end of this notice.

Docket No. (date filed)

Shipper name

Peak day
average
day
annual
MMBtu

Receipt points

Delivery points

Contract date rate
schedule service type

Related docket, start up
date

C POO-2025-000 (8-21-
90)

Direct Gas Supply
Corporation.

25.000

1,000

365,000

Vannus ,,,, .

Various..

IT Interruptible

ST90-4181 7-26-90

E Panhandle Eastern Pipe Line Co.

[Docket No. CP90-1978-000j
August 24.1990.

Take notice that on August 14,1990,
Panhandle Eastern Pipe Line Company
(Panhandle), P.O. Box 1642, Houston,
Texas 77001. filed in Docket No. CP90-
1978-000 an application pursuant to
section 7(b) of the Natural Gas Act for
permission and approval to abandon
certain pipeline facilities located in
Wyoming, all as more fully set forth in
the application which is on file with the
Commission and open to public
inspection.

Panhandle states that it seeks to
abandon and transfer ownership to
Phillips 66 Natural Gas Company

(Phillips) Panhandle’s Powder River
System located in Campbell, Converse,
West on, and Johnson Counties,
Wyoming, including: (1) 30 compressor
station sites with a total of
approximately 31,559 compressor
horsepower. (2) approximately 369 miles
of pipeline and appurtenant facilities,
operating and maintenance equipment,
spare parts and inventory. All facilities
abandoned by Panhandle will remain in
place for the continued use by Phillips, it
is stated.

Panhandle asserts that it would
significantly reduce its operating costs
without detriment to its sales customers
by transferring ownership of the Powder
Fiver System to Phillips. Panhandle
avers that the proposed transfer of

ownership would result in cost-of-
8 ervice savings of $4,000,000. Panhandle
states that it would retain its ability to
purchase gas at the tailgate of the
Douglas Plant to meet its customer’s
future needs if required.

Comment dote: September 14,1990. in
accordance with Standard Paragraph F
at the end of this notice.

9. Natural Gas Pipeline Co. of America

[Docket Nos. CP90-2037-000, CP90-2038-000,
CP90-2039-000 and CP90-2040-000)

August 24.1990.

Take notice that on August 23,1990,
Natural Gas Pipeline Company of
America, 701 East 22nd Street. Lombard,
Illinois 60148, (Natural), filed in the
above-referenced dockets prior notice

35948

Federal Register / Vol. 55, No. 171 / Tuesday, September 4, 1990 / Notices

requests pursuant to §5157.205 and
284.223 of the Commission's Regulations
under the Natural Gas Act for
authorization to transport natural gas on
behalf of various shippers under its
blanket certificate issued in Docket No.
CP86-582-000. pursuant to section 7 of
the Natural Gas Act, all as more fully
set forth in the requests that are on file

with the Commission and open to public
inspection. 3

Information applicable to each
transaction, including the identity of the
shipper, the type of transportation
service, the appropriate transportation
rate schedule, the peak day, average day
and annual volumes, and the initiation

* These prior notice requests are not
consolidated.

service dates and related ST docket
numbers of the 120-day transactions
under 5 284.223 of the Commission’s
Regulations, has been provided by
Natural and is summarized in the
attached appendix.

Comment date: October 9,1990, in
accordance with Standard Paragraph G
at the end of the notice.

Docket No. (dated filed)

Shipper name (type)

Peak day
average day
annual
MMBtu

Receipt points

Delivery points

Contract dale rate
schedule service
type

Related docket,
start up date

CP90-2037-000 (8-23-
90)

Caterpillar Inc. (End-
user).

8.000

8,000

2.920,000

LA. IL.TX.- ..

IL, TX~

5-17-90 FTS Firm...

ST90-4031-000 7-
1-90

CP90-2038-000 (8-23-
90)

International Paper
Company (End-user).

5,000

5,000

1.825,000

LA. TX__

AR ...

5-16-90 FTS Firm...

ST90-4117-000 7-
1-90

CP90-2039-000 (8-23-

Hadson Gas Systems,

Inc (Marketer).

50,000

30,000

10,950,000

Various..

Various.„.

6-22-90 ITS

ST90-4121-000 7-

90)

Interruptible.

1-90

CP90-2040-000 (8-23-

Vtctona Gas

20.000

TX, OK, LA.

LA, IL, TX, IA_

10-17-89 ITS

ST90-4048-000 6-

90)

Corporation

(Marketer)

10,000

3,650,000

Interruptible.

29-90

10 . Southern Natural Gas Co.
Transcontinental Gas Pipe Line Corp.
Southern Natural Gas Co. and Colorado
Interstate Gas Co.

(Docket Nos. CP90-2012-000, CP90-2014-000,
CP90-2020-000 and CP90-2021-000)

August 24. 1990.

Take notice that Southern Natural
Gas Company, PO. Box 2563,
Birmingham. Alabama 35202-2563.
Transcontinental Gas Pipe Line
Corporation, P.O. Box 1396. Houston.
Texas 77251, and Colorado Interstate
Gas Company, P.O. Box 1087, Colorado
Springs, Colorado 80944 (Applicants),

filed in the above-referenced dockets
prior notice requests pursuant to
5 § 157.205 and 284.223 of the
Commission’s Regulations under the
Natural Gas Act for authorization to
transport natural gas on behalf of
various shippers under the blanket
certificates issued in Docket No. CP88-
316-000 and Docket No. CP88-328-000,
respectively, pursuant to section 7 of the
Natural Gas Act, all a3 more fully set
forth in the requests that are on file with
the Commission and open to public
inspection. 4

4 The®# prior notice request® are not

consolidated.

Information applicable to each
transaction, including the identity of the
shipper, the type of transportation
service, the appropriate transportation
rate schedule, the peak day, average day
and annual volumes, and the initiation
service dates and related ST docket
numbers of the 120-day transactions
under 3 284.223 of the Commission's
Regulations, has been provided by
Applicants and is summarized in the
attached appendix.

Comment date: October 9,1990, in
accordance with Standard Paragraph G
at the end of this notice.

Docket No. (date filed)

SI upper name (type)

Peak day
average day
annual

Receipt points 1

Delivery points

Contract date rate
schedule

Related docket
start-up date

CP90-2012-000 (8-17-
90)

Texican Natural Gas
Company

>50.000

10,000

3.650.000

OTX. OLA, TX, LA, MS,
AL

LA......-

e/20/90 rr_.

ST90-3645. 0/21/
90

CP90-2020-000 (8-20-
90)

Consolidated Fuel
Corporation

*25,000

25.000

9,125.000

OTX, OLA, LA. MS. AL...

GA ---

6/20/90 IT__

ST90-3889. 6/22/
90

CP90-2014-000 (8-20-
90)

Centran Corporation _

4 1.200.000
50.000
438,000,000

Various...

OTX. OLA. LA. MS. TX_

6/5/90 IT_

ST90-3766. 6/28/
90

CP90-2021-000 (8-20-
90)

Enron Gas Marketing,

Inc.

•25.000

10,000

3.650,000

WY.....

WY ..

6/8/90 IT-1...

ST90-3523. 6/10/
90

1 Offshore Lousiana end offshore Texas are shown as OLA and OTX.

* Measured in MM9TU equivalent

3 Measured in MMBtu equivalent

4 Measured in dt equivalent

* Measured in Mcf.

Federal Register / Vol. 55. No. 171 / Tuesday. September 4, 1990 / Notices

359411

Standard Paragraphs

F. Any person desiring to be heard or
make any protest with reference to said
filing should on or before the comment
date file with the Federal Energy
Regulatory Commission, 825 North
Capitol Street. NE., Washington, DC
20426, a motion to intervene or a protest
in accordance with the requirements of
the Commission's Rules of Practice and
Procedure (18 CFR 385.211 and 385.214)
and the Regulations under the Natural
Gas Act (18 CFR 157.10). All protests
filed with the Commission will be
considered by it in determining the
appropriate action to be taken but will
not serve to make the protestants
parties to the proceeding. Any person
wishing to become a party to a
proceeding or to participate as a party in
any hearing therein must file a motion to
intervene in accordance with the
Commission’s Rules.

Take further notice that, pursuant to
the authority contained in and subject to
jurisdiction conferred upon the Federal
Energy Regulatory Commission by
sections 7 and 15 of the Natural Gas Act
and the Commission’s Rules of Practice
and Procedure, a hearing will be held
without further notice before the
Commission or its designee on this filing
if no motion to intervene is filed within
the time required herein, if the
Commission on its own review of the
matter finds that a grant of the
certificate is required by the public
convenience and necessity. If a motion
for leave to intervene is timely filed, or if
the Commission on its own motion
believes that a formal hearing is
required, further notice of such hearing
will be duty given.

Under the procedure herein provided
for, unless otherwise advised, it will be
unnecessary for the applicant to appear
or be represented at the hearing.

G. Any person or the Commission’s
staff may, within 45 days after the
issuance of the instant notice by the
Commission, file pursuant to Rule 214 of
the Commission’s Procedural Rules (18
CFR 385.214] a motion to intervene or
notice of intervention and pursuant to

§ 157.205 of the Regulations under the
Natural Gas Act (18 CFR 157.205) a
protest to the request. If no protest is
filed within the time allowed therefore,
the proposed activity shall be deemed to
be authorized effective the day after the
time allowed for filing a protest if a
protest is filed and not withdrawn
within 30 days after the time allowed for
filing a protest the instant request shall
be treated as an application for

authorization pursuant to section 7 of
the Natural Gas Act.

Lois D. Cashel),

Secretary.

|FR Doc. 90-20656 Hied 8-31-90; 8:45 amj

BILLING CODE 6717-01-M

I Docket No. TM90-13-22-0001

CNG Transmission Corp.; Proposed
Changes in FERC Gas Tariff

August 27,1990.

Take notice that CNG Transmission
Corporation (“CNG’ f ), on August 22,

1990, pursuant to section 4 of the
Natural Cas Act. the Stipulation and
Agreement approved by the Commission
on October 6,1989, in Docket Nos.
RP88-217, et aJ. t and § 12.9 of the
General Terms and Conditions of CNG’s
FERC Gas Tariff, 1 filed six (6) copies of
the following revised tariff sheets to its
FERC Cas Tariff, First Revised Volume
No. 1:

First Revised Sheet No. 40
First Revised Sheet No. 44
First Revised Sheet No. 46
First Revised Sheet No. 47
First Revised Sheet No. 48
Second Revised Sheet No. 48
First Revised Sheet No. 52

The tariff sheets are proposed to
become effective on the date indicated
on each tariff sheet.

The purpose of the filing is to flow
through changes in take-or-pay costs
allocated to CNG by its pipeline
suppliers.

Copies of this filing were served upon
CNG’s customers as well as interested
parties.

Any person desiring to be heard or to
protest said filing should file a protest or
motion to intervene with the Federal
Energy Regulatory Commission. 825
North Capitol Street, NE.. Washington,
DC 20426, in accordance with Rules 214
and 211 of the Commission’s Rules of
Practice and Procedure. 10 CFR 385.214
and 385.211. All motions or protests
should be filed on or before September
4,1990. Protests will be considered by
the Commission in determining the
appropriate action to be taken but will
not serve to make protestants parties to
the proceeding. Any person wishing to
become a party must file a motion to
intervene. Copies of this filing are on file
with the Commission and are available
for public inspection.

Lois D. Cashell,

Secretary.

(FR Doc. 90-20661 Filed 8-31-90; 8:45 amj

BILLING CODE 6717-<lt-l*

(Docket No. RP90-16S-000!

Request for Waiver, Mid Louisiana Gas
Co.

August 27,1990.

Take notice that on August 17,1990
pursuant to section 212 of the
Commission’s Rules of Practice and
Procedure, 18 CFR 284.212, Mid
Louisiana Gas Company (’ Mid
Louisiana") filed a request for waiver of
§ 154.303 of the Commission's
Regulations, 18 CFR 154.303.

Mid Louisiana states that under
§ 154.303(e) of the Commission's
Regulations requires that at least 30
days prior to the expiration of 36 months
after the effective date of its previously
approved base tariff rates, a pipeline is
required to file tariff sheets restating its
rates to establish new base tariff rates.
Mid Louisiana's previously approved
base tariff rates are to expire September
1,1990. Accordingly, its restated base
tariff rates were required to be filed on
or before August 1.1990. Mid Louisiana
requests waiver to permit it to file
restated base tariff rates less than 30
days before the expiration of its
previously approved base tariff rates.

Any person desiring to protest 9aid
filing should file a protest with the
Federal Energy Regulatory Commission.
825 North Capitol Street, NE.,
Washington, DC 20426, in accordance
with Rules 214 and 211 of the
Commission’s Rules of Practice and
Procedure (18 CFR 385.214 and 385.211
(1990)). All such protests should be filed
on or before September 17.1990.

Protests will be considered by the
Commission in determining the
appropriate action to be taken, but will
not serve to make protestants parties to
the proceeding. Persons that are already
parties to this proceeding need not file a
motion to intervene in this matter.
Copies of this filing are on file with the
Commission and are available for public
inspection.

Lois D. Cashell,

Secretary r.

[FR Doc. 90-20660 Filed 8-31-90; 8:45 ain|

BILLING CODE «717-01-*

[Docket Nob. CP86-578-030, CP89-1740-
004 and CP90-203-0021

Northwest Pipeline Corp; Proposed
Change In Service Agreements

August 27.1990.

Take notice that on August 22,1990,
Northwest Pipeline Corporation
("Northwest’’) tendered for filing and
acceptance new Service Agreements
under Rate Schedules ODL-1 and DS-t,

35950

Federal Register / Vol. 55. No. 171 / Tuesday, September 4, 1990 / Notices

to be effective October 1,1989, between
Northwest and Cascade Natural Gas
Corp., City of Buckley, City of
Ellensburg, City of Enumclaw, Greeley
Gas Company, Intermountain Gas
Company, Northwest Natural Gas
Company, Utah Gas Service Company,
Washington Natural Gas Company,
Washington Water Power Company,
Western Gas Supply Company and
Wyoming Industrial Gas Company.

Northwest states that the above-
mentioned Service Agreements were
revised to (1) change it firm sales
services for certain of its existing Rate
Schedule ODL-1 and DS-1 sales
customers, and (2) incorporate a gas
inventory charge (GIC) and associated
transportation within sales contract
demand services. Northwest requests an
effective date of October 1,1989 for the
tendered Service Agreements.

Northwest has also tendered a
Termination of Service Agreement for
DS-1 Service to Rocky Mountain
Natural Gas Company, and for ODL-1
Service to Paiute Pipeline Company. Inc.
(successor in interest to Southwest Gas
Company), pursuant to permission
granted by the Commission in Opinion
No. 344.

A copy of this filing has been mailed
to the parties listed above.

Any person desiring to be heard or
protest said filing should file a motion to
intervene or protest with the Federal
Energy Regulatory Commission, 825
North Capitol Street NE., Washington
DC 20426, in accordance with Sections
385.214 and 385.211 of the Commission’s
Rules of Practice and Procedure. All
such motions or protests should be filed
on or before September 4.1990. Protests
will be considered by the Commission in
determining the appropriate action to be
taken, but will not serve to make
protestants parties to the proceeding.
Any person wishing to become a party
must file a motion to intervene. Copies
of this filing are on file with the
Commission and are available for public
inspection in the Public Reference
Room.

Lois D. Cashell,

Secretary.

[FR Doc. 90-20657 Filed 8-31-90; 8:45 am)

BILUNG CODE 6717-01-HI

[Docket No. TM91-1-41-000J

Paiute Pipeline Co.; Change In Annual
Charge Adjustment

August 27, 1990.

Take notice that on August 21,1990.
Paiute Pipeline Company (Paiute)
tendered for filing and acceptance the

following tariff sheets to be a part of its
FERC Gas Tariff:

Original Volume No. 1

Fifteenth Revised Sheet No. 10
Original Volume No. 1-A

Seventh Revised Sheet No. 10

Paiute states that the purpose of said
filing is to revise its annual charge
adjustment surcharge in order to recover
the Commission’s annual charges for the
1990 fiscal year.

Paiute has requested that the
Commission accept its tariff sheets to
become effective October 1,1990.

Paiute states that copies of this filing
have been mailed to all jurisdictional
sales customers and affected state
regulatory commissions.

Any persons desiring to be heard or to
protest said filing should file a motion to
intervene or a protest with the Federal
Energy Regulatory Commission, 825
North Capitol Street NE., Washington,
DC 20426, in accordance with Rules 211
and 214 of the Commission’s Rules of
Practice and Procedure (18 CFR 385.211,
385.214). All such motions or protests
should be filed on or before September
4,1990. Protests will be considered by
the Commission in determining the
appropriate action to be taken, but will
not serve to make protestants parties to
the proceedings. Any person wishing to
become a party must file a motion to
intervene. Copies of this filing are on file
with the Commission and are available
for inspection.

Lois D. Cashell
Secretary.

[FR Doc. 90-20658 Filed 8-31-90; 8:45 am)

BILLING COOE 6717-01-M

[Docket Nos. RP88-27-024, RP88-264-020
and RP89-138-0091

United Gas Pipe Une Co.; Tariff Filing

August 27,1990.

Take notice that on August 21,1990,
United Gas Pipe Line Company (United)
submitted for filing the following tariff
sheets as part of its FERC Gas Tariff
and certain working papers in response
to the Commission’s June 19,1990 Order
(June 19.1990 Order) and the Notice
Granting Partial Extension of Time
issued August 6,1990, in this proceeding.

First Revised Volume No. 1
Effective April 1,1989.

Fourth Revised Sheet No. 4-G.l
Fourth Revised Sheet No. 4-H
Fourth Revised Sheet No. 4-1
Fourth Revised Sheet No. 4-J
Fourth Revised Sheet No. 4-K
Fourth Revised Sheet No. 4-L

Second Revised Volume No. 1

Effective November 30,1989.

Second Revised Sheet No. 4J
First Revised Sheet No. 4j.l
First Revised Sheet No. 4J.2
First Revised Sheet No. 4J.3
First Revised Sheet No. 4).4
First Revised Sheet No. 4J.5
First Revised Sheet No. 4J.6
First Revised Sheet No. 4J.7

United states that the filing will be
served upon all parties listed on the
official service list in this proceeding.

Any person desiring to be heard or to
protest said filing should file a motion to
intervene or protest with the Federal
Energy Regulatory Commission, 825 N.
Capitol Street, NE, Washington, DC,
20426, in accordance with Sections
385.214 and 385.211 of the Commission’s
regulations. All such motions of protest
should be filed on or before September
4.1990.

Protests will be considered by the
Commission in determining the
appropriate action to be taken, but will
not serve to make protestants parties to
the proceedings. Aiiy person wishing to
become a party must file a Motion to
Intervene in accordance with the
Commission’s Regulations. Copies of
this filing are on file with the
Commission and are also available at
United’s office in Houston, Texas and
are available for public inspection.

Lois D. Cashell,

Secretary.

[FR Doc. 90-20569 Filed 8-31-90; 8:45 am]

BILLING CODE 6717-01-M

Office of Hearings and Appeals

Proposed Implementation of Special
Refund Procedures

AGENCY: Office of Hearings and
Appeals, Department of Energy.

action: Notice of proposed
implementation of special refund
procedures.

summary: The Office of Hearings and
Appeals (OHA) of the Department of
Energy (DOE) announces modifications
to the proposed procedures for
disbursement of $1,187,500, plus accrued
interest, obtained by the DOE under the
terms of a consent order entered into
with Time Oil Company. The DOE has
tentatively determined that injured Time
Oil customers should be given an
opportunity to submit claims for direct
restitution before any remaining funds
are distributed for indirect restitution in
accordance with the terms of that
consent order.

Federal Register / Vol. 55, No. 171 / Tuesday. September 4. 1990 / Notices

35951

dates and ADDRESSES: Comments must
be filed in duplicate within 30 days of
publication of this notice in the Federal
Register and should be addressed to:
Office of Hearings and Appeals,
Department of Energy, 1000
Independence Avenue. SW.,

Washington, DC 20585. All comments
should display a reference to case
number KEF-0129.

FOR FURTHER INFORMATION CONTACT:

Thomas O. Mann, Deputy Director,

Roger Klurfeld, Assistant Director,

Office of Hearings and Appeals, 1000
Independence Avenue. SW.

Washington, DC 20585, (202) 585-2094
(Mann); 585-2383 (Klurfeld).
SUPPLEMENTARY INFORMATION: In
accordance with 10 CFR 205.282(b),
notice is hereby given of the issuance of
the Proposed Decision and Order set out
below. The Proposed Decision and
Order sets forth the procedures that the
DOE has tentatively formulated to
distribute funds obtained from Time Oil
Company (Time). The funds are being
held in an interest-bearing escrow
account pending distribution by the
DOE.

The DOE and Time entered into a
December 13,1982 consent order that
resolved, with specific exceptions, all
civil and administrative disputes
regarding Time’s compliance with the
DOE’s price and allocation regulations.
As explained in the Proposed Decision
and Order, the Time consent order
identifies one injured purchaser to
receive direct restitution, and seven
states which are designated to receive
the remainder of the funds for indirect
restitution to citizens of these states.
Since this Consent Order was issued
before the enactment of the Petroleum
Overcharge Distribution and Restitution
Act of 1980 (PQDRA), such funds could
be distributed directly to the named
recipients without use of DOE’s Subpart
V refund regulations. 15 U.S.C.

4501(c)(3). Nevertheless, in view of the
unique circumstances of this case, we
are proposing that all injured Time
customers tie permitted to file refund
claims before any unclaimed monies are
distributed. When the seven designated
states receive their funds for indirect
restitution, they will be subject to
OHA's '‘second-stage” refund
procedures.

Any member of the public may submit
written comments regarding the
proposed refund procedures.
Commenting parties are requested to
provide two copies of their submissions.
Comments must be submitted within 30
days of publication of this notice in the
Federal Register and should be sent to
the address set forth at the beginning of

this notice. All comments received in
this proceeding will be available for
public inspection between the hours of 1
p.m. and 5 p.m., Monday through Friday,
except federal holidays, in the Public
Reference Room of the Office of
Hearings and Appeals, located in room
IE-234,1000 Independence Avenue,

SW., Washington, DC 20585.

Dated: August 27.1990.

George B. Brcznay,

Director, Office of Hearings and Appeals.

Proposed Decision and Order of the
Department of Energy

Implementation of Special Refund
Procedures

August 27,1990.

Name of Petitioner Time Oil
Company.

Dele of Filing; April 18,1989.

Case Number, KEF-0129.

On April 13,1989, the Economic
Regulatory Administration (ERA) filed a
Petition with the Office of Hearings and
Appeals (ORA) of the Department of
Energy (DOE) requesting that the OHA
formulate and implement procedures, in
accordance with the provisions of 10
CFR part 205, subpart V (subpart), for
distributing funds obtained through the
settlement of enforcement proceedings
brought against Time Oil Company
(Time) by the DOF.

/. Background

During the period August 20,1973
through January 27,1981, Time was
engaged in the refining of crude oil and
the sale of refined petroleum products. It
was, therefore, a “refiner” as that term
is defined in 10 CFR 212.31, and subject
to the federal petroleum price and
allocation regulations in existence at
that time. The ERA conducted audits of
Time's compliance with the price and
allocation regulations during that period.
During and as a result of those audits,
disputes arose between Time and the
DOE concerning the firm’s compliance
with the regulations, some cf which led
to the issuance of a Notice of Probable
Violation to Time on February 29,1900.

In order to avoid protracted and
costly litigation. Time and the DOE
agreed to enter into a consent order,
which became final on December 13,
1982. The consent order resolved, with
certain specified exceptions, all civil
and administrative disputes regarding
Time’s compliance with the regulations.
Pursuant to the settlement agreement,
Time paid the DOE $1,107,500 on
December 22,1982. The settlement
agreement funds have been placed in an
interest-bearing escrow account
maintained by the Department of the

Treasury for ultimate distribution by the
DOE.

In its Petition for the Implementation
of Special Refund Procedures, the ERA
states that it was able to identify a claim
of the Defense Fuel Supply Center
(DFSC), which was the only purchaser
of jet fuel from Time during the months
selected for intense audit Petition at 2.
The consent order therefore provides for
the distribution of $325,000 to the DFSC.
In addition, the consent order provides
that Hie DOE will distribute the
remaining amount to the treasurers of
the seven states within which Time sold
covered products during the period
November 1973-January 1981,
Washington, Oregon, California. Idaho,
Montana, Nevada and Hawaii. Id. Each
state's portion of the remaining funds
was calculated according to the share of
Time's total volume of gasoline sold in
that state during the relevant period.

The ERA requests that the OHA
establish refund procedures pursuant to
Subpart V for the distribution of the
funds that have been obtained from
Time and distribute the Time money in
accordance with the express terms of
the consent order. Id. at 3.

On April 5,1990, the OHA issued a
Proposed Decision and Order (PDO) that
established tentative procedures for
distributing the Time funds. The PDO
was published in the Federal Register on
April 16,1990 at 55 FR 14122. In the
PDO, we tentatively determined that the
DFSC. the only injured purchaser of
Time refined petroleum products
identified in the consent order, should
receive a refund in the indicated
amount, and that the seven states would
share the remainder of the funds in the
manner suggested in the consent order.

The States of Oregon and Washington
filed the only comments regarding the
proposed procedures, urging OHA to
expedite release of the Time funds.
However, we have reconsidered the
proposed Time refund procedures, and
determined that they should be modified
in two respects. First, we have
concluded that it would be more
appropriate at this point to allow a
claims process to proceed. This will
permit injured purchasers of Time
refined petroleum products who were
not identified in the 1982 consent order
to submit claims before any residual
funds are distributed to the seven states.
Second, we have determined that the
use of the unclaimed funds which are
distributed to the seven states for
indirect restitution should be governed
by OHA’s “second stage refund
procedures.” In view of these changes,
we will issue this new Proposed
Decision and Order to provide

35952

Federal Register / Vol. 55, No. 171 / Tuesday. September 4. 1990 / Notices

interested parties with notice and an
opportunity to comment on the modified
Time refund procedures.

II. Reasons for Reconsidering Time
Refund Procedures

There are a number of unique factors
which make this case different from
other subpart V refund procedures. As
noted above, the consent order involved
dates back to 1982, before the enactment
of the Petroleum Overcharge
Distribution and Restitution Act of 1986
(PODRA), 15 U.S.C. 4501-07. During that
early period, the DOE used a variety of
restitutionary remedies for oil
overcharges, not just Subpart V. See
DOE Ruling 1984-1, 49 FR 22064 (May 25.
1984). The Time consent order is
especially unusual in its use of a hybrid
approach. It identified the DFSC as the
sole injured Time jet fuel customer and
earmarked $325,000 to redress that
injury. However, it failed to provide any
direct restitution for other injured Time
customers, particularly those who
brought motor gasoline, the firm’s other
major product. Instead, the consent
order skipped that step altogether, and
designated the seven states to receive
all remaining Time funds as indirect
restitution to benefit unidentified
persons, including Time’s gasoline
customers, who were injured by the
firm’s alleged overcharges. If the Time
consent order had been executed after
enactment of PODRA in October 1986.
the firms’s other customers, including
those who purchased gasoline from the
firm, would also have been accorded an
opportunity to file claims for direct
restitution before any residual funds
could be distributed to the states.

Section 3002(c)(3) of PODRA excludes.
inter alia, from its mandatory Subpart V
refund distribution scheme any amount
designated in a DOE consent order for
disbursement to a person or class of
persons, if the consent order was issued
before the date of enactment of PODRA
(October 21.1986). 15 U.S.C. 4501(c)(3).
The legislative history of this provision
makes clear that the exclusion applies in
cases where funds being held by the
DOE have been designated for
disbursement to particular individuals
or classes of person, “either as direct or
indirect restitution.” H.R. Conf. Rep. No.
1012, 99th Cong., 2d Sess., reprinted in
1986 U.S. Code Cong. & Admin. News
3868, 3878. This “grandfather clause”
was designed to allow the courts and
the DOE to implement orders for
restitution to identified parties that were
effective prior to the enactment of
PODRA where the funds were
designated for specific entities but not
yet distributed. This statutory provision
clearly applies to the Time funds, and

thus the use of subpart V is not
mandatory here.

Nevertheless, if we w'ere to implement
the refund distribution plan precisely as
set forth in the consent order, it is clear
that a group of injured Time gasoline
customers would lose the opportunity to
file claims for direct restitution. In view
of the current statutory refund policy
and certain factors which are unique to
this particular case, injured persons who
merit direct restitution should be given
the opportunity to claim a portion of the
Time funds before the remaining portion
is distributed to the seven states. The
unique factors in this case are as
follows: (1) the 1982 consent order
singles out one injured purchaser for
direct restitution; (2) no effort was made
when the consent order was executed to
locate any other of Time’s injured
purchasers; and (3) Time is a regional
marketer of refined products whose
other injured purchasers can be
identified so that they may also submit
claims for direct restitution. Therefore,
allhough we are not required to
establish the Time refund proceedings
under subpart V, we will permit
unidentified purchasers of Time refined
petroleum products during the period of
price controls to submit applications for
refund.

Ill Modified Refund Procedures

As indicated above, we will
implement a two-stage refund process
by which the DFSC, and purchasers of
Time covered products other than jet
fuel during the period August 20,1973
through January 27,1981 may submit
Applications for Refund in the initial
stage, and any monies remaining after
the payment of all valid first-stage
claims will be remitted to the seven
states in the proportional shares
specified in the consent order for
indirect restitution as second-stage
refunds. From our experience with
Subpart V proceedings, we expect that
potential applicants generally will fall
into the following categories: (1) End-
users; (2) regulated entities, such as
public utilities, and cooperatives; and (3)
refiners, resellers and retailers
(hereinafter collectively referred to as
“resellers”).

A Claims Based Upon Alleged
Overcharges

In order to receive a refund, each
claimant will be required to submit a
schedule of its monthly purchases of
Time covered products during the refund
period. If the product was not purchased
directly from Time, the claimant must
establish that the product originated
with Time. Additionally, a reseller
claimant, except one who chooses to

utilize the injury presumptions set forth
below, will be required to make a
detailed showing that it was injured by
Time’s alleged overcharges. This
showing will generally consist of two
distinct elements. First, a reseller
claimant will be required to show that it
had “banks” of unrecouped increased
product costs in excess of the refund
claimed. * 1 Second, because a showing of
banked costs alone is not sufficient to
establish injury, a claimant must provide
evidence that market conditions
precluded it from increasing its prices to
pass through the additional costs
associated with the alleged overcharges.
See Vickers Energy Corp./Hutchins Oil
Co., 11 DOE 85.070, at 88,105 (1983).
Such a showing could consist of a
demonstration that a firm suffered a
competitive disadvantage as a result of
its purchases from Time. See National
Helium Co./Atlantic Richfield Co., It
DOE H 85.257 (1984), aff'd sub nom.
Atlantic Richfield Co., v. DOE, 618 F.
Supp. 1199 (D. Del. 1985).

1. The Use of Presumptions. Our
experience also indicates that the use of
certain presumptions permits claimants
to participate in the refund process
without incurring inordinate expense
and ensures that refund claims are
evaluated in the most efficient manner
possible. See, e.g., Marathon Petroleum
Co., 14 DOE H 85,269 (1986) [Marathon).
The use of presumptions in refund cases
is specifically authorized by the
applicable subpart V regulations at 10
CFR 205.282(e). Accordingly, we adopt
the presumptions set forth below.

a. Calculation of Refunds. First we
will adopt a presumption that the
alleged overcharges were dispersed
equally in all of Time’s sales of refined
petroleum products during the refund
period. In accordance with this
presumption, refunds are made on a per
gallon or volumetric basis. 2 In the

1 Claimants who have previously relied upon
their banked costs in order to obtain refunds in
other special refund proceedings should subtract
those refunds from the cumulative banked costs
submitted in this proceeding. See Husky OH Co./
Metro Oil Products. Inc.. 16 DOE 185.090. at 88.179
(1987). Additionally, a claimant may not receive a
refund [or any month in which it ha 9 a negative
cumulative bank (for that product) or for any
preceding month. See Standard Oil (Indiana)/
Suburban Propane Gas Corp., 13 DOE f 85.030 at
88.082 (1985). If a claimant no longer has records
showing its banked costs, the OHA may exercise its
discretion to allow approximations of those banks
prepared by the applicant. See Gulf Oil Corp./
Sturdy Oil Co.. 15 DOE | 85,187 (1986).

1 Because we realize that the impact on a
individual claimant may have been greater than the
volumetric refund amount, we will allow any
purchaser to file a refund application based upon a
claim that it suffered a disproportionate share of
Time's alleged overcharges. See. e.g.. Standard Oil

Continued

Federal Register / Vol. 55. No. 171 / Tuesday. September 4. 1990 / Notices

35953

absence of belter information, a
volumetric refund is appropriate
because the DOE price regulations
generally required a regulated firm to
account for increased costs on a firm¬
wide basis in determining its prices.

Under the volumetric approach, a
claimant's “allocable share” of the
consent order fund is equal to the
number of gallons purchased from Time
during the refund period multiplied by
the per gallon refund amount. In the
present case, the per gallon refund
amount is $.0012. We derived this figure
by dividing the consent order fund,
$2,136,863, by 1,776.655,181 gallons, the
approximate number of gallons of
covered refined products which Time
sold during the refund period. A firm
that establishes its entitlement to a
refund will receive all or a portion of its
allocable share plus a pro-rata share of
the interest that has accrued on the
Time consent order fund since August l f
1900. 3

In addition to the volumetric
presumption, we will adopt a number of
presumptions regarding injury for
claimants in each category listed below.

b. End-Users. In accordance with prior
subpart V proceedings, we will adopt
the presumption that an end-user or
ultimate consumer of Time petroleum
products whose business is unrelated to
the petroleum industry was injured by
the alleged overcharges settled by the
consent order. See, e g., Texas Oil and
Cos Corp., 12 DOE 85,069, at 88,209
11984) [TOCCO). Unlike regulated firms
in the petroleum industry, members of
this group generally were not subject to
price controls during the refund period,
and were not required to keep records
which justified selling price increases by
reference to cost increases.
Consequently, analysis of the impact of

(Indiana)/Army and Air Force Exchange Service, 12
DOE1 85.015 (1984). Such an application will be
granted only if an applicant make# a persuasive
showing that: (1) it was “overcharged" by 8 specific
amount, and (2) it was injured by those overcharges
See Panhandle Eastern Pipeline Co./Western
Petroleum Co., 19 DOE ? 85.705 (1989): Mobil Oil
Co. Contra Pehyjfeum Corp.. 19 DOE 1 35.070 (1980),
and cases cited therein. To the extent that a
claimant makes this showing, it will receive a
refund above the volumetric refund level. In
computing the appropriate refund amount, we will
prorate the alleged overcharge amounts by the ratio
of the Time consent order amount as compared to
the aggregate overcharge amount alleged by the
ERA. Am tel. Inc./Whitco, Inc.-, 19 DOE $ 65 319
(1989) [Amtel/Whitco).

a As in previous cases, we still establish a
minimum refund amount of $15. In this
determination. an> potential claimant which
purchased less than 12.500 gallons of petroleum
products would have an allocable share of Ics9 than
SI5. We have found through our experience that the
cost of processing claims in which refunds for
amounts less than $15 are sought outweighs the
benefits or restitution in those instances. See Exxon
Corp., 17 DOE \ 85.590 at 89.150 (1988) [Exxon).

the alleged overcharges on the final
prices of goods and services produced
by members of this group would be
beyond the scope of the refund
proceeding. Id. We have concluded,
therefore, that the end-users of Time
refined petroleum products need only
document their purchase volumes from
Time during the refund period to make a
sufficient showing that they were
injured by the alleged overcharges.

c. Regulated Firms and Cooperatives.
A claimant whose prices for goods and
services are regulated by a
governmental agency (;.e.. a public
utility), or an agricultural cooperative
which is required by its charter to pass
through cost savings its member
purchasers, need only submit
documentation of purchases used by
itself or. in the case of a cooperative,
sold to its members in order to receive a
full volumetric refund. However, a
regulated firm or a cooperative will also
be required to certify that it will pass
through any refund received to its
customers or member-customers,
provide us with a full explanation of
how it plans to accomplish the
restitution, and certify that it will notify
the appropriate regulatory body or
membership group of the receipt of the
refund. See Marathon , 14 DOE at 88,514-
15. These requirements are based upon
the presumption that, with respect to a
regulated firm, any overcharges would
have been routinely passed through to
its customers. Similarly, any refunds
received should be passed through to its
customers. W ith respect to a
cooperative, in general, the cooperative
agreement which controls its business
operations would ensure that the alleged
overcharges, and similarly refunds,
would be passed through to its member-
customers. Accordingly, these firms will
not be required to make a detailed
demonstration of injury. 4

d. Refiners, Resellers and Retailers —
i. Small Claims Presumption. We will
adopt a “small claims'* * * presumption that
a firm which resold Time products and
requests a small refund was injured by
the alleged overcharges. Under the small
claims presumption, a refiner, reseller or
retailer seeking a refund of $5,000 or
less, exclusive of interest, will not be
required to submit evidence of injury
beyond documentation of the volume of
Time products it purchased during the
refund period. See TOCCO , 12 DOE at
88,210. Thi9 presumption is based on the
fact that there may be considerable

* A cooperative*# purchases of Time products
which were resold to non-members will be treated
in a manner consistent with purchases made by
other resellers. See Total Petroleum. Inc./Formers
Petroleum Cooperative, Inc.. 19 DOE $ 85.21!! (1989).

expense involved in gathering the types
of data necessary to support a detailed
claim of injury; for small claims the
expense might possibly exceed the
potential refund. Consequently, failure
to allow simplified refund procedures
for small claims could deprive injured
parties of their opportunity to obtain a
refund. Furthermore, use of the small
claims presumption is desirable since it
allows the OHA to process routine
refund claims in an efficient manner. 5 *

ii. Mid-Level Claim Presumption. In
addition, a refiner, reseller or retailer
claimant whose allocable share of the
refund pool exceeds $5,000, excluding
interest, may elect to receive as its
refund either $5,000 or 40 percent of its •
allocable share, up to $50,000, whichever
is larger.® The use of this presumption
reflects our conviction that these larger,
mid-level claimants were likely to have
experienced some injury as a result of
the alleged overcharges. See Marathon ,
14 DOE at 88,515. In some prior special
refund proceedings, we have performed
detailed analyses in order to determine
produce-specific levels of injury. See
e g., Getty Oil Co., 15 DOE 85,064
(1986). However, in Gulf Oil Corp., 16
DOE H 85,381, at 88,737 (1987), we
determined that based upon the
available data, it was more accurate
and efficient to adopt a single
presumptive level of injury of 40 percent
for all mid-levels claimants, regardless
of the refined product that they
purchased, based upon the resullB of our
analyses in prior proceedings. We
believe that approach generally to be
sound, and we therefore will adopt a 40
percent presumptive level of injury for
all mid-level claimants in this
proceeding. Consequently, an applicant
in this group will only be required to
provide documentation of its purchase
volumes of Time refined petroleum
products during the refund period in
order to be eligible to receive a refund of
40 percent of its total allocable share, up
to $50,000. or $5,000, whichever is
greater. 7

* In order to qualify for a refund under the small
claims presumption, a refiner, reseller, or retailer

must have purchased less than 4.106,607 gallons of
Time refined petroleum products during the refund

period.

• That is. claimants who purchased more than
4,166.887 gallons of Time refined petroleum products

during the refund period (mid-level claimants) may

elect to utilize this presumption.

7 A claimant who attempts to make a detailed
showing of injury in order to obtain 100 percent of
its allocable share but, instead, provides evidence
that leads us to conclude that it passed through all
of the alleged overcharges, or that it is eligible for a
refund of less than the applicable presumption-level
refund may not then be eligible for a presumption-
based refund. Instead, auch a claimant may receive

Continued

35954

Federal Register / Vol. 55, No. 171 / Tuesday, September 4. 1990 / Notices

iii. Spot Purchasers. We will adopt a
rebuttable presumption that a reseller
that made only spot purchases from
Time did not suffer injury as a result of
those purchases. As we have previously
stated, spot purchasers generally had
considerable discretion as to the timing
and market in which they made their
purchases, and therefore would not have
made spot market purchases from a firm
at increased prices unless they were
able to pass through the full amount of
the firm’s selling price to their own
customers. See. e.g., Vickers, 8 DOE at
85.396-97. Accordingly, a spot purchaser
claimant must submit specific and
detailed evidence to rebut the spot
purchaser presumption and to establish
the extent to which it was injured as a
result of its spot purchases from Time.* *

B. Allocation Claims. W'e may also
receive claims based upon Time s
alleged failure to furnish petroleum
products that it was obliged to supply
under the DOE allocation regulations
that became effective in January 1974.
See 10 CFR part 211. Any such
applications will be evaluated with
reference to the standards set forth in
subpart V implementation cases such as
Office of Sped a! Counsel, 10 DOE
U 85.048 at 88,220 (1082), and refund
application cases such as Mobil Oil
Carp./Reynolds Industries, Inc., 17 DOF
| 85,608 (1988); Marathon Petroleum
Co./Research Fuels. Ina. 19 DOE
11 85,575 (1989). action for review
pending. No. CA3-89-29a3C (N.D. Tex.
filed Nov. 22.1989) (Marathon/RFl).
These standards generally require an
allocation claimant to demonstrate the
existence of a supplier/purchaser
relationship with Time and the
likelihood that Time failed to furnish
petroleum products that it was obliged
to supply to the claimant under 10 CJ\R.
part 211. In addition, the claimant
should provide evdience that it had
contemporaneously notified the DOE or
otherwise sought redress from the
alleged allocation violation. Finally, the
claimant must establish that it was
injured and document the extent of the
injury.

In our evaluation of whether
allocation claims meet these standards,
we will consider various factors. For

a refund which reflects the level of injury
established in its application. No refund will be
approved if its submission indicates that it was not
injured as a result of its purchases from Time. See
Exxon. 17 DOF. at 89 150 n. 10.

• In prior proceedings, we have stated that
refunds will be approved for spot purchasers who
demonstrate that: (1) they made the spot purchases
for the purpose of ensuring a supply for their base
period customers rather than in anticipation of
financial advantage as a result of those purchases,
and [2) they were forced by market conditions lo
resell the product at a loss.

example, we will seek to obtain as much
information as possible about the
agency's treatment of complaints made
to it by the claimant. We will also look
at any affirmative defenses that Time
may have had to the alleged allocation
violation. See Marathon/RFl. In
assessing an allocation claimant's
injury, we will evaluate the effect of the
alleged allocation violation on its entire
business operation, with particular
reference to the amount of product that
it received from suppliers other than
Time. In determining the amount of an
allocation refund, we will utilize any
information that may be available
regarding the portion of the Time
consent order amount that the agency
attributed to allocation violations in
general and to the specific allocation
violation alleged by the claimants.
Finally, since the Time consent order
reflects a negotiated compromise of the
issues involved in the enforcement
proceedings against Time and the
consent order amount is less than
Time’s potential liability in those
proceedings, we will prorate those
allocation refunds that would otherwise
be disproportionately large in relation to
the consent order fund. Cf. Amtel/
VVh/tco.

fV. Distribution of Refunds Remaining
After Consideration of All Refund
Applications

We propose that all unclaimed money
remaining in the Time escrow account
after all meritorious refund applicants
are paid be distributed in the manner
suggested in the consent order to the
seven states in which Time sold covered
products during the period November
1973 through January 1981. As stated
above, each state's portion of the
remaining funds was calculated
according to the share of Time's total
volume of gasoline sold in that state
during the elevant period. Those funds
will be allocated to the seven identified
states in proportions equal to those by
which the original states' pool of
$802,500 was apportioned.

Since these funds have been
exempted from PODRA requirements,
they will be distributed under OI IA‘s
second-stage refund procedures. These
procedures have normally been used by
OHA to ensure that indirect restitution
of oil overcharges to the states is
proportional to the injury experienced
and provides timely restitutionary
benefits. The states are familiar with
this process. See “A Report on State
Expenditures of Oil Overcharges," DOE
Publication No. DOE/HG-003 (January
1990). Each of the seven affected states
will be required to submit a

restitutionary plan to the OHA. Upon
approval of the plan, the OHA will order
the disbursement of the state's share of
the funds, including a proportionate
share of accrued interest.

Detailed requirements applicable to
the states' restitutionary plans will be
addressed in a Utter Decision and Order,
to be issued when we have completed
the processing of all Time refund
applications.

It Is Therefore Ordered That:

The amount remitted to the
Department of Energy by Time Oil
Company pursuant to Consent Order
No. 000S00068 will be distributed in
accordance with the foregoing Decision.
|FR Doc. 90-20735 Filed 8-31-90: 8:45)

BILLING COOC M5001-M

ENVIRONMENTAL PROTECTION
AGENCY

l FRL-3827-2)

Science Advisory Board; Radiation
Advisory Committee; Radionuclides in
Drinking Water Subcommittee;
Conference Call Meeting

September 17,1990.

Under Public Law 92-463. notice is
hereby given that the Radionuclides in
Drinking Water Subcommittee of the
Science Advisory Board's Radiation
Advisory Committee will hold an
additional conference call to edit its
report on the review of four criteria
documents on radionuclides in drinking
water. The additional call is scheduled
for Monday. September 17.1990 at 12:00
to 2:00 p m. e.d.t.

The Subcommittee required additional
time because it has decided to combine
the four individual reports (on radon,
radium, uranium, and gross beta) into a
single report.

Members of the public may
participate by providing oral or written
consent or by listening to the calls.
However, the availability to participate
is limited by the nature of the
conference call equipment. Members of
the public wishing further information
should call either Mrs. Dorothy Clark or
Mrs. Kathleen Conway at 202/382-2552.
Those wishing to participate in the
conference call should call by noon on
the Friday before the scheduled call.

Dated: August 27.1990.

Donald G. Barnes,

Director. Science Advisory Board.

|FR Doc. 90-20728 Filed 8-31-90; 8:45 am)

BILLING COO€ 6560-50-M

Federal Register / Vol. 55, No. 171 / Tuesday, September 4, 1990 / Notices

35955

(OPP-00292; FRL-3800-1]

FIFRA Scientific Advisory Panel
Subpanel; Open Meeting

agency: Environmental Protection
Agency (EPA).

action: Notice of open meeting.

summary: There will be a 1-day meeting
of the Federal Insecticide, Fungicide,
and Rodenticide Act (FIFRA) Scientific
Advisory Panel (SAP) Subpanel to
review a set of scientific issues being
considered by the Agency in connection
with a proposed rule under 40 CFR part
1?2 to amend its experimental use permit
(EUP) regulations for pesticides. The
proposed rule clarifies the
circumstances under which an EUP is
required for small-scale field testing of
genetically altered microbial pesticides.
The meeting will be open to the public.
DATES: The meeting will be held on
Wednesday, September 26,1990. from
8 30 a.m. to 4:30 p.m.
addresses: The meeting will be held at:
I loliday Inn-Crowne Plaza, 300 Army
Navy Drive, Arlington, VA 22202. (703)
892-4100.

FOR FURTHER INFORMATION CONTACT: By

mail: Robert B. Jaeger, Designated
Federal Official, FIFRA Scientific
Advisory Panel (H7509C), Office of
Pesticide Programs, Environmental
Protection Agency, 401 M St., SW.,
Washington, DC 20460. Office location
end telephone number Rm. 821C, CM
f* 2, 1921 Jefferson Davis Highway,
Arlington, VA, (703) 557-4369/2244.
SUPPLEMENTARY INFORMATION: The
agenda for this meeting includes the
review of the scientific issues being
considered by the Agency on a proposed
regulation amending 40 CFR part 172 to
clarify the circumstances under which
an EUP is presumed not to be required
and to specify that the presumption is
based upon risk. The Agency also
proposes to implement a review
procedure that requires notification
before initiation of small-scale testing of
certain genetically modified microbial
pesticides. The Agency will review each
notification in order to assess the
potential for adverse impacts on human
health or the environment and will then
determine whether an EUP is required.
This notification scheme would
implement provisions of the Agency’s
policy statement of June 26,1986 (51 FR
23302), with modifications, and is
intended to provide sufficient oversight
of the early stages of testing of these
microbial pesticides.

The Agency has convened a Subpanel
of the SAP to review the scientific issues
on the proposed rule. The Subpanel will
be chaired by Dr. James Tiedje, a

member of the SAP. Disciplines of the
Subpanel will include expertise in
microbiology, entomology, molecular
biology, human pathology, plant
pathology, and soil science.

Copies of documents relating to the
topics listed above, may be obtained by
contacting: By mail: Public Docket and
Freedom of Information Section, Field
Operations Division (H7506C). Office of
Pesticide Programs, Environmental
Protection Agency, 401 M St., SW.,
Washington. DC. 20460. Office location
and telephone number: Rm. 244 Bay. CM
#2,1921 Jefferson Davis Highway,
Arlington, VA, (703) 557-2805.

Any member of the public wishing to
submit written comments should contact
Robert B. Jaeger at the address or the
telephone number given above to be
sure that the meeting is still scheduled
and to confirm the Subpanel’s agenda.
Interested persons are permitted to file
written statements before the meeting.
To the extent that time permits and
upon advance notice to the Designated
Federal Official, interested persons may
be permitted by the chairman of the
Scientific Advisory Panel to present oral
statements at the meeting. There is no
limit on written comments for
consideration by the Subpanel, but oral
statements before the Subpanel are
limited to approximately 5 minutes.
Since oral statements will be permitted
only as time permits, the Agency urges
the public to submit written comments
in lieu of oral presentations. Information
submitted as a comment in response to
this notice may be claimed confidential
by marking any part or all of that
information as "Confidential Business
Information" (CBI). Information so
marked will not be disclosed except in
accordance with procedures set forth in
40 CFR part 2. A copy of the comment
that does not contain CBI must be
submitted for inclusion in the public
docket. Information not marked
confidential will be included in the
public docket without prior notice. The
public docket will be available for
public inspection in Room 244 Bay at the
address given above, from 8 a.m. to 4
p.m., Monday through Friday, excluding
legal holidays. All statements will be
made part of the record and will be
taken into consideration by the
Subpanel.

Persons wishing to make oral and/or
written statements should notify the
Designated Federal Official and submit
10 copies of a summary no later than
September 18,1990, in order to ensure
eppropriate consideration by the
Subpanel.

Dated: August 27.1990.

Victor J. Kimm,

Acting Assistant Administrator for Pesticides
ond Toxic Substances.

[FR Doc. 90-20731 Filed 8-31-90; 8:45 am)

etUJNG CODE 8550-50-f

[OPTS-140136; FRL-3797-6]

Access to Confidential Business
Information by Chemical Abstracts
Service

agency: Environmental Protection
Agency (EPA).
action: Notice.

summary: EPA has authorized the
Chemical Abstracts Service (CAS), of
Columbus, Ohio, for access to
information which has been submitted
to EPA under sections 5 and 8 of the
Toxic Substances Control Act (TSCA).
Some of the information may be claimed
or determined to be confidential
business information (CBI).
dates: Access to the confidential data
submitted to EPA will occur no sooner
than September 14,1990.

FOR FURTHER INFORMATION CONTACT:
Michael M. Stahl, Director. TSCA
Environmental Assistance Division (TS-
799), Office of Toxic Substances,
Environmental Protection Agency, Rm.
E-545, 401 M St., SW., Washington, DC
20460, (202) 554-1404, TDD: (202) 554-
0551.

SUPPLEMENTARY INFORMATION: Under
contract number 68-W9-0028, Chemical
Abstracts Service, of 2540 Olentangy
River Road, Columbus, Ohio, will assist
the Office of Toxic Substances in
developing, maintaining, and operating
the TSCA Chemical Substance
Inventory.

In accordance with 40 CFR 2.30o(j),
EPA has determined that under EPA
contract number 68-W0-0028, CAS will
require access to CBI submitted to EPA
under sections 5 and 8 of TSCA to
perform successfully the duties specified
under the contract. CAS personnel will
be given access to information
submitted under sections 5 and 8 of
TSCA. Some of the information may be
claimed or determined to be CBI.

In a previous notice published in the
Federal Register of March 19,1990 (55
FR 10112), CAS was authorized for
access to CBI submitted to EPA under
sections 5 and 8 of TSCA. EPA is issuing
this notice to continue CAS’s access to
TSCA CBI for the duration of the new
contract no. 68-W0-0028.

EPA is issuing this notice to inform all
submitters of information under sections
5 and 8 of TSCA that EPA may provide

35956

Federal Register / Vol. 55, No. 171 / Tuesday, September 4, 1990 / Notices

CAS access to these CBI materials at
CAS facilities on a need-to-know basis.
All access to TSCA CBI under this
contract will take place at EPA
Headquarters and CAS's Columbus,
Ohio facilities. CAS has been authorized
access to TSCA CBI at its facilities
under the EPA “Contractor
Requirements for the Control and
Security of TSCA Confidential Business
Information” security manual. EPA has
approved CAS’s security plan and has
performed the required inspections of
their facilities and has found them to be
in compliance with the requirements of
the manual.

Clearance for access to TSCA CBI
under this contract may continue until
June 30,1995.

CAS personnel will be required to
sign non-disclosure agreements and will
be briefed on appropriate security
procedures before they are permitted
access to TSCA CBI.

Dated: August 27.1990.

Linda A. Travers,

Director, Information Management Division,

Office of Toxic Substances

[FR Doc. 90-20732 Filed 8-31-90; 8:45 am)

billing codc smo-so-f

DEPARTMENT OF HEALTH AND
HUMAN SERVICES

Agency for Toxic Substances and
Disease Registry

! ATSDR- 26 ]

Quarterly Notice of Health
Assessments To Be Conducted in
Response to Requests From the Public
and All Health Assessments
Completed

agency; Agency for Toxic Substances
and Disease Registry (ATSDR), Public
Health Services (PHS), Department of
Health and Human Service (DHHS).
action: Notice.

summary: This notice contains a list of
sites for which ATSDR has completed or
amended health assessments during
April-June 1990. This list includes sites
that are on. or proposed for inclusion on.
the National Priorities list (NPL) and
non-NPL sites for which ATSDR has
prepared a health assessment in
response to a request from the public
(petitioned health assessment). This
notice also contains a list of sites for
which ATSDR. during the same period,
has accepted a request from the public
to conduct a health assessment.
Acceptance is based on a determination
by the Agency that there is a reasonable

basis for conducting a health
assessment at the site.

FOR FURTHER INFORMATION CONTACT:

Robert C. Williams, P.E.. Director,
Division of Health Assessment and
Consultation. Agency for Toxic
Substances and Disease Registry, 1600
Clifton Road, Atlanta, Georgia 30333,
(404) 639-0610. FTS 236-0610.
SUPPLEMENTARY INFORMATION: A list of
completed or amended health
assessments and petitioned health
assessments which were accepted by
ATSDR during January-March 1990 was
published in the Federal Register on
Friday, May 18.1990 (55 FR 20636). The
quarterly announcement is ATSDR’s
responsibility under the ATSDR new
regulation. Health Assessments and
Health Effects Studies of Hazardous
Substances Releases and Facilities. The
final rule, wrhich seta forth procedures
for ATSDR in the conduct of health
assessments under CERCLA, appeared
in the Federal Register on Tuesday,
February 13.1990 (55 FR 5136 to be
codified at 42 CFR part 90).

Health Assessments Completed or
Amended for NPL Sites

Health assessments for the NPL sites
listed below were completed or
amended between April 1,1990, and
June 30.1990:

California

Crazy Horse Sanitary Landfill—Salinas
Connecticut

Cheshire Associates Property—Cheshire
Durham Meadows—Durham
Linemaster Switch Corporation—
Woodstock

Delaware

Kent County Landfill—Houston
Sealand Limited—Mt. Pleasant

Florida

Agrico Chemical Company—Pensacola
Beulah Landfill—Pensacola
Madison County Sanitary Landfill—
Madison

Standard Auto Bumper Corporation—
Hialeah

Wilson Concepts of Florida. Inc.—
Pompano Beach

Woodbury Chemical (Princeton Plant)—
Princeton

Georgia

T.H. Agriculture & Nutrition Company—
Albany

Illinois

Acme Solvent Reclaiming. Inc.—
Morristown

Iowa

E.I. DuPont DeNemours Company,
County Rd. X23—West Point
Mid-America Tanning Company—
Sergeant Bluff

Shaw Avenue Dump (preliminary health
assessment)—Charles City
Shaw Avenue Dump 2 (full health
assessment)—Charles City
U.S. Nameplate—Mount Vernon

Kansas

Pester Refinery Company—F.1 Dorado

Kentucky

Brantley Landfill—Island
Fort Hartford Coal Company Stone
Quarry—Olaton
General Tire/Rubber—Mayfield

Maryland

Anne Arundel County Landfill—Glen
Bumie

Massachusetts

Atlas Tack Corporation—Fairhaven
Iron Horse Park—Billerica

Mississippi

Gautier Oil Company. Inc.—Gautier
Missouri

Oronogo-Duenweg Mining Belt—Jasper
County

Syntex Facility—Verona
New Hampshire

Fletchers Paint Works and Storage—
Milford

Holton Circle Ground Works
Contamination—Londonderry
Savage Municipal Well 1—Milford
South Municipal Water Supply Well—
Petersborough

New Jersey

Brick Township Landfill—Brick
Township

Dayco Corporation/LE. Carpenter
Company—Wharton Borough
Dover Municipal Well 4 —Dover
Township

Ellis Property—Evesham Township
Hopkins Farm—Plumstcad Township
King of Prussia—Winslow Township
Landfill and Development Company—
Mount Holly

Lodi Municipal Wellfield—Lodi
Monitor Devices/Intercircuits, Inc.—

Wall Township

Myers Property 2—Franklin Township
Price Landfill—Pleasantvilie
Rockaway Township Wells—Rockaway
Upper Deerfield Township Sanitary
Landfill—Upper Deerfield Township
Vineland State School—Vineland
Wilson Farm—Plumstead Township

Federal Register / Vol. 55, No. 171 / Tuesday. September 4, 1990 / Notices

35957

New Mexico

Cimarron Mining Corporation—
Carrizozo

Cleveland Mill—Silver City
Prewitt Abandoned Refinery—Prewitt

New York

Forest Glen Mobile Home Park—
Niagara Falls

North Carolina

New Hanover Company Airport Burn
Pit—Wilmington

Oklahoma

Double Eagle Refinery Company—
Oklahoma City

Moseley Road Sanitary Landfill—
Oklahoma City

Pennsylvania

Berkley Products Company Dump—
Denver

Raymark—Hatboro
Tennessee

Carrier Air Conditioning Company—
Collierville

Murray-Ohio Manufacturing (Horseshoe
Bend)—Lawrenceburg
Wrigley Charcoal Plant—Wrigley

Texas

Rio Grande Oil Company Refinery—
Sour Lake

Tex-Tin Corporation—Texas City
Vermont

Darling Hill Dump—Lyndonville

Washington

ALCOA (Vancouver Smelter)—
Vancouver

American Crossarm & Conduit
Company—Chehalis
Centralia Muncipal Landfill—Centraiia
General Electric (Spokane Shop)—
Spokane

Tosco Corporation (Spokane
Termina 1)—Spokane
Yakima Plating company—Yakima

Wyoming

Mystery Bridge Road/U.S. Highway
20 —Evansville

Petitions for Health Assessments
Accepted

Between April 1, 1990. and June 30.
1990. ATSDR determined that there was
a reasonable basis to conduct health
assessments for the sites or facilities
listed below in response to requests
from the public. As of June 30.1990.
ATSDR had initiated health
assessments at these sites or facilities:
Buzby Brothers Landfill—Vorhees. New
Jersey

Fields Brook Site—Ashtabula. Ohio

Groton Gratuity Road—Groton.
Massachusetts

Huntington Landfill—Huntington. New
York

Lackawanna Valley Area—Scranton,
Pennsylvania

Availability: The completed health
assessments are available for public
inspection at the Division of Health
Assessment and Consultation. Agency
for Toxic Substances and Disease
Registry. Building 31. Executive Park
Drive, Atlanta, Georgia (not a mailing
address), between 8 a.m. and 4:30 p.m.,
Monday through Friday except legal
holidays. On or about August 31,1990.
the completed health assessments will
be available by mail through the U.S.
Department of Commerce. National
Technical Information Service (NTJS),
5285 Port Royal Road, Springfield.
Virginia 22161 or by phone at (703) 487-
4650.

Dated: August 27,1990.

William L. Roper,

Administrator, Agency for Toxic Substances
and Disease Registry.

[FR Doc. 90-20713 Filed 8-31-90; 8:45 am)
BILLING COOE 4 ♦•0-70-41

Centers for Disease Control

National Institute for Occupational
Safety and Health (NIOSH), Centers for
Disease Control (CDC), Research on
Agricultural Lung Disease Program:
Meeting

name: Research on Agricultural Lung
Disease Program.

TIME AND DATE: 8 a.m.-3 p.m., September
17,1990.

PLACE: Appalachian Laboratory for
Occupational Safety and Health, room
203. NIOSH, CDC. 944 Chestnut Ridge
Road. Morgantown. West Virginia
26505.

STATUS: Open to the public, limited only
by the space available.

PURPOSE: To review the research
program in the Division of Respiratory
Disease Studies, NIOSH related to
agricultural lung disease.

CONTACT PERSON FOR ADDITIONAL
information: Stephen A. Olenchock,
Ph.D., NIOSH. CDC. 944 Chestnut Ridge
Road. Mailstop 215, Morgantown. West
Virginia 26505, telephone 304/291-4250
or FTS 923-4256.

Dated: August 2a 1990.

Elvin Hilyer,

Associate Director for Policy Coordination,
Centers for Disease Control.

(FR Doc. 90-20712 Filed 8-31-90. 8:45 am]

BUXJMQ COOE 41*0- IB-41

Food and Drug Administration

Statement of Organization, Functions,
and Delegations of Authority

Part H. chapter HF (Food and Drug
Administration) of the Statement of
Organization, Functions, and
Delegations of Authority for the
Department of Health and Human
Services (35 FR 3685. February 25.1970,
as amended most recently in pertinent
parts at 45 FR 33729. May 20. 1980, 50 FR
51606, December 18.1985 and 55 FR
30984, July 30,1990) is amended to
reflect organizational and functional
changes in the Food and Drug
Administration.

The Office of Information Resources
Management (OIRM) was established
effective July 10,1990, and was
published in the Federal Register on July
30.1990. However, incorrect
Organizational Codes (Standard
Administrative Codes) were identified
at that time. The corrected codes are
listed below.

Section HF-B, Organization and
Functions is amended as follows:

1. Delete subparagraph (h-5)

Parklawn Computer Center (lfFA79) in
its entirety and insert a new
subparagraph (h-5) Office of
Information Resources Management
HFA71) reading as follows:

(h-5) Office of Information Resources
Management (HFA71). Performs Agency
information resources management
functions.

Advises the Commissioner on
information resources management
issues.

Represents the Agency to the Office of
the Assistant Secretary for Health and
the Office of the Secretary on
information resources management.

Manages the Parklawn Computer
Center.

Serves as the DIIHS Executive Agent
for Departmentwide connectivity.

2. Delete subparagraph (h-8) Division
of Information Resources Management
(HFA73) in its entirety.

Dated: August 16,1990.

James S. Benson.

Acting Commissioner of Food and Drugs.

[FR Doc. 90-20715 Filed 6-31-90; 6:45 am|

BILUNG CODE 4t«0-01-«

Health Care Financing Administration

Privacy Act of 1974

agency: Department of Health and
Human Services (HHS), Health Care
Financing Administration (11CFA).
action: Notice of New System Records.

35958

Federal Register / Vol. 55, No. 171 / Tuesday, September 4, 1990 / Notices

summary: In accordance with the
requirements of the Privacy Act of 1974,
we are proposing to establish a new
system of records, called “Current
Beneficiary Survey (CBS),” HHS/
HCFA/OACT No. 09-70-0002. We have
provided background information about
the proposed new system in the
“Supplementary Information" section
below. Although the Privacy Act
requires only that the “routine uses"
portion of the system be published for
comment, HCFA invites comments on
all portions of this notice.
dates: HCFA filed a new system report
with the Chairman of the Committee on
Government Operations of the House of
Representatives, the Chairman of the
Committee on Governmental Affairs of
the Senate, and the Administrator,

Office of Information and Regulatory
Affairs, Office of Management and
Budget (OMB), on August 30,1990. The
new system of records, including routine
uses, will become effective 60 days from
the date submitted to OMB unless
11CFA receives comments which require
alteration to the system.

ADDRESSES: The public should address
comments to Richard A. Demeo, HCFA
Privacy Act Officer, Office of Budget
and Administration, Health Care
Financing Administration, Room 108.
Security Office Park Building, 7008
Security Boulevard, Baltimore,

Maryland 21207. Comments received
will be available for inspection at this
location.

FOR FURTHER INFORMATION CONTACT:

Mr. Gerald Adler, Project Officer,
Current Beneficiary Survey, Health Care
Financing Administration, Office of the
Actuary, 6325 Security Boulevard,
Baltimore, Maryland 21207, 301-966-
7938.

SUPPLEMENTARY INFORMATION: The

Current Beneficiary Survey (CBS) is an
ongoing, multi-purpose survey for use by
all components of HCFA, by the
Department, and by others concerned
with Medicare policy. The core of the
CBS concept is a series of interviews of
a representative sample of the Medicare
population regarding: their patterns of
use and cost of health services over
time; their sources of coverage and
payment; their assets and income; their
demographic characteristics; their health
and functional status; their health and
work history; and their family support.
The CBS is thus focused on issues that
are of prime importance to HCFA:
health care use and expenditure, and
determinants thereof. The CBS is also
continuous, in the sense that the same
beneficiaries will be interviewed
repeatedly over seveal years to observe
changes ip health care use with changes

in coverage, and to observe processes
that occur over time, such as
institutionalization or spending down of
assets. The CBS will provide rapid
feedback of information to HCFA
policymakers. Analysis staff will be able
to answer questions as they arise, rather
than several years later. The CBS will
also be designed to permit the use of
supplementary questions concerning
fast-breaking issues. The information
from CBS will be augmented by being
linked to HCFA data and other
administrative data to provide
validation and greater analytic capacity.

CBS questions to be asked include
certain core items. These questions,
which will be asked each round, include:

• Detailed questions about the
respondent’s health care utilization
since the last interview, including
hospital stays, hospital outpatient care,
physician visits, home health care,
nursing home care, drugs, equipment,
and other utilization categories;

• The reasons for each utilization
episode;

• Expenditures associated with each
episode, and sources of payment; and

• Insurance coverage and sources of
payment, including out-of-pocket costs;

The following are examples of how
the core items of the CBS will be used:

• Estimate the cost of legislative
proposals;

• Prepare mandated Reports to
Congress;

• Develop national cost estimates for
health care, including HCFA program
expenditures, other sources of payment,
and developments in the health care
industry;

• Analyze the effects of program
changes on use and expenditures,
including public costs, private insurance,
and out-of-pocket costs;

• Improve the actuarial estimates
which are required to monitor and
project the demands on the Medicare
Trust Funds;

• Study the interaction of the
Medicare and Medicaid programs, and
of both programs with private insurance
derived from employment;

• Determine the proportion of out-of-
pocket payments and balance billing for
physician care;

• Estimate the role of supplemental
insurance, including long term care
insurance, in the Medicare population;

• Better understand the demographic
and socio-economic characteristics of
the Medicare population as they relate
to its need for health services; and

• Improve models of use and cost of
health services.

In addition to the core items, periodic
or one-time supplemental questions will

be included in each of the three rounds
of interviews occurring during a year.
These will collect information on
relatively stable characteristics of the
respondents, such as work history, or on
special topics of timely concern to
HCFA, sucH as respondents* perceptions
of Health Maintenance Organizations
(HMOs). They may also contain
questions which need not be asked each
round, but may be asked annually, such
as health and functional status, income,
assets, living arrangements, family
supports, and quality of life. These
supplemental questions will be used to
address such issues as:

• Effectiveness of Medicare in
providing access to needed care;

• Outcomes of medical care episodes;

• Effect on working and work history
on the need for health services and on
coverage;

• Effects of Medicare hospitalization
on post-hospital outcomes of care;

• Efficacy of Medicare in improving
or maintaining health status for
Medicare beneficiaries;

• State of beneficiary knowledge
about developments in the program and
the effects of HCFA*s communications
for various types of beneficiaries;

• Beneficiaries* understanding of
HMOs and other forms of managed care;

• Understanding of the proper use of
the dispensed drug, and drug
interactions; and

• Beneficiaries* perceptions of
physician services provided under
Medicare, especially their understanding
of the Participating Physician Program.

The CBS sample will consist of 12,000
individuals sampled from the Medicare
Enrollment File to be representative of
the Medicare population as a whole and
by age group, enrollment type (aged or
disabled), urban or rural residence.
Census region, and, among the aged,
whether or not institutionalized. The
sample will be augmented several times
a year to take into account attrition, as
well as to include eligible persons.

Sampled individuals will be
interviewed three times a year, using
personal interviews for the entire
sample for the first round and altering
personal and telephone interviews
thereafter. People who are unable to
respond by phone will be interviewed
personally each time. These interviews,
conducted three times a year, will yield
a time series of data for each respondent
on health services utilization, medical
care expenditures, health insurance
coverage, sources of payment, public
and private, including out-of-pocket
payments, health and functional status,
and a variety of demographic and
behavioral information (such as income.

Federal Register / Vol. 55, No. 171 / Tuesday, September 4. 1990 / Notices

35959

assets, living arrangements, family
supports, and quality of life).

Built into the survey design are
requirements for reporting access to the
data in a variety of media, a series of
validations of the data, and rapid
turnaround. Survey data files will be
matched to HCFA claims payment and
other administrative records such as the
National Death Index, Social Security
records, and the Area Resource File. A
CBS Data Book is to be prepared
annually for wide circulation, presenting
the most important tabulations. State
and local area estimates, and the
relation of CBS data to other findings on
the Medicare population. The CBS Data
Book will not contain any information
which allows individuals participating
in the survey to be identified. Annual
extracts of the data will be prepared,
suitable for analysis on personal
computers.

Interviewing will begin at the start of
the second year of the contract
expected to be January 1,1991. It is
estimated that the average interview,
including supplements, will be 45
minutes to an hour in duration, although
interviews will vary due to the presence
or absence of health events. It is
intended that, after testing, recently
developed computer technology will be
used for data collection, that is. the
Computer Assisted Personal Interview
(CAPI), in order to obtain timely, clean,
and high quality data.

During the first year, the contractor
will conduct a full-scale pilot test of all
forms and procedures to be used in the
CBS, including sample selection,
selection and training of data collection
staff, data collection, quality control,
and processing and delivery of the data.
The purposes of the pilot test are to (1]
test respondent sampling, contact, and
location procedures; (2) test
questionnaire content, wording, and
format; (3) test software and
programming for CAP!; (4) test
interviewer instruction materials and
training in CAPI; (5) test data
transmission, editing and processing
procedures; (6) test coding, summary
and control card preparation, and output
preparation; (7J evaluate training
methods, material, end procedures; and
(8) evaluate the burden on respondents,
especially on impaired individuals.

The CBS is guided by a technical
advisory panel (TAP) of 12 experts, hair
from inside and half from outside the
government. The TAP advises the
Project Officer on the conduct of the
survey and the analysis of survey data
At its first meeting the TAP rev iewed
the contractor’s work plan and draft
questionnaire and began the
development of an analysis plan for CBS

data. Future meetings will review
reports for each of the three data
collection rounds, annual estimate
reports, the CBS Data Book, and
successive Work Pians.

The Privacy Act permits us to disclose
information without the consent of
individuals for -routine uses”—that is,
disclosures that are compatible with the
purpose for which we collected the
information. The proposed routine uses
in the new system meet the
compatibility criteria since the
information is collected to produce
estimates of health care use and
expenditures, and determinants thereof,
by the aged and disabled. We anticipate
the disclosures under the routine uses
will not result in any unwarranted
adverse effects on persona! privacy.

Dated: August 27. 1990.

Gail R. Wikmsky.

A dm in isttutor, Heatth Cure Financing
Administration.

09-70-6002

SYSTEM NAME:

A Current Beneficiary Survey (CBS).
HHS/HCFA/OACT.

SECURITY CLASSIFICATION:

None.

SYSTEM location:

Office of Computer Operations,

BDMS, HCFA, 6325 Security Boulevard.
Baltimore. Maryland 21207.

CATEGORIES or INDIVIDUALS COVEREO BY THE

system:

A scientific random sample of persons
enrolled for hospital insurance and/or
supplemental medical benefits under the
Medicare program.

CATEGORIES OF RECORDS IN THE SYSTEM:

Demographic and socioeconomic
characteristics such as age, sex, race,
education, military service history,
income, and marital status; medical
utilization and cost data; prescription
drug usage and cost data; health and
functional status data; health insurance
coverage data; personal identifiers
(name of Medicare beneficiary and
Medicare health insurance claim
number); medical condition data;
household composition data: medical
provider names.

AUTHORITY FOR MAINTENANCE OF THE

system:

Authority for maintenance of the
system is given under section 1875 of the
Social Security Act (42 U.S.C 139511),
entitled Studies and Recommendations.

purpose of the system:

The survey will produce data sets
suitable for both longitudinal and cross-
sectional analysis. These data will be
used by HCFA for multiple purposes to;

• Produce projections of current
program and proposed program changes;

• Produce U.S.-level estimates of
national health care expenditures by the
aged and disabled;

• Provide a research data base for
HCFA and other researchers; and

• Provide guidance to program
management and policies.

ROUTINE USES OF RECORDS MAINTAINED IN
THE SYSTEM, INCLUDING CATEGORIES OF
USERS AND THE PURPOSES OF SUCH USES:

Disclosure may be made:

1. To a congressional office from the
record of an individual in response to an
inquiry from the congressional office
made at the request of that individual.

2. To the Bureau of Census for use in
processing research and statistical data
directly related to the administration of
programs under the Social Security Act.

3. To the Department of Justice, to a
court or other tribunal, or to another
party before such tribunal, when

(a) HHS, or any component thereof: or

(b) Any HHS employee in his or her
official capacity; or

(c) Any HHS employee in his or her
individual capacity where the
Department of Justice (or HHS where it
is authorized to do so) has agreed to
represent the employee; or

(d) The United States or any agency
thereof where HHS determines that the
litigation is likely to affect HHS or any
of its components;

ia party to litigation or has an interest in
such litigation, and HHS determines that
the use of such records by the
Department of Justice, the tribunal, or
the other party is relevant and
necessary to the litigation and would
help in the effective representation of
the governmental party, provided,
however, that in each case HIIS
determines that such disclosure is
compatible with the purpose for which
the records were collected.

4. To an individual or organization for
a research, evaluation, or
epidemiological project related to the
prevention of disease or disability, or
the restoration or maintenance of health
if HCFA:

a. Determines that the use or
disclosure does not violate legal
limitations under which the record was
provided, collected or obtained:

b. Determines that the purpose for
which the disclosure is to be made:

(1) Cannot be reasonably
accomplished unless the record is

35980

Federal Register / Vol. 55, No. 171 / Tuesday. September 4, 1990 / Notices

provided in individually identifiable
form.

(2) Is of sufficient importance to
warrant the effect and/or risk on the
privacy of the individual that additional
exposure of the record might bring, and

(3) There is reasonable probability
that the objective for the use would be
accomplished.

c. Requires the information recipient
to:

(1) Establish reasonable
administrative, technical, and physical
safeguards to prevent unauthorized use
or disclosure of the record, and

(2) Remove or destroy the information
that allows the individual to be
identified at the earliest time at which
removal or destruction can be
accomplished consistent with the
purpose of the project unless the
recipient presents an adequate
justification of a research or health
nature for retaining such information,
and

(3) Make no further use or disclosure
of the record except:

(a) In emergency cicumstances
affecting the health or safety of any
individual.

(b) For use in another research
project, under these same conditions,
and with written authorization of HCFA,

(c) For disclosure to a properly
identified person for the purpose of an
audit related to the research project, if
information that would enable research
subjects to be identified is removed or
destroyed at the earliest opportunity
consistent with the purpose of the audit
or

(d) When required by law;

d. Secures a written statement
attesting to the information recipient’s
understanding of and willingness to
abide by these provisions.

5. To a contractor for the purpose of
collating, analyzing, aggregating or
otherwise refining or processing records
in this system or for developing,
modifying and/or manipulating ADP
software. Data would also be disclosed
to contractors incidental to consultation,
programming, operation, user
assistance, or maintenance for an ADP
or telecommunications systems
containing or supporting records in the
system.

POLICIES AND PRACTICES FOR STORING,
RETRIEVING, ACCESSING, RETAINING, AND
DISPOSING OF RECORDS IN THE SYSTEM:

STORAGE:

File folders, magnetic tapes, computer
disks.

RETRIEV ABILITY:

Records are retrieved by health
insurance claim number.

SAFEGUARDS:

Access is limited to authorized HCFA
personnel and HCFA contractor
employees in the performance of their
duties. HHS contractors and
collaborating researchers are required to
comply with the provisions of the
Privacy Act, and are required to sign
Assurance of Confidentiality Forms (or
Data Security Statements) that are kept
on file by the contractor. Respondents
are advised that their identity will only
be known to those who are involved in
conducting the study and that any
published findings will be in a formal
which precludes individual
identification (data that contains no
individual identifiers nor data elements
that would permit the identity of a
beneficiary to be deduced [e.g., date of
birth, residence, zip code) may be
released as statistical data). Data are
kept in secured rooms with access
limited to authorized personnel, in
buildings with controlled access. Access
to computer files is controlled by the use
of security codes and passwords known
only to authorized personnel.

RETENTION AND DISPOSAL.*

Records are maintained with
identifiers as long as needed for
program research.

SYSTEM MANAGER(S) AND ADDRESS:

Chief Actuary, Office of the Actuary,
Health Care Financing Administration.
6325 Security Boulevard, Baltimore.
Maryland 21207

NOTIFICATION PROCEDURE:

For purpose of access, write the
system manager, who will require the
system name, health insurance claim
number, and, for verification purposes,
name, address, date of birth, and sex.

RECORD ACCESS PROCEDURE:

Same as notification procedures.
Requestors should also reasonably
specify the record contents being sought.
(These access procedures are in
accordance with the Department
Regulations [45 CFR 5b.5(a)2).j

CONTESTING RECORD PROCEDURES:

Contact the system manager named
above, and reasonably identify the
record and specify the information to be
contested. State the corrective action
sought and the reasons for the
correction with supporting justification.
(These procedures are in accordance
with Department Regulation [45CFR
5b.7).).

RECORD 80URCE CATEGORIES:

Medicare enrollment records;

Medicare bill records; Medicare
provider records for a sample of

enrollecs; Medicare beneficiaries or
proxies; Medical providers (such as
physicians, medical facilities, home
health care providers) for a sample of
enrollecs.

SYSTEMS EXEMPTED FROM CERTAIN
PROVISIONS OF THE ACT:

None.

[FR Doc. 90-20699 Filed 8-31-90: 8:45 am|

BILLING CODE 4120-03-M

National Institutes of Health

National Cancer Institute, Meeting;
Cancer Biology—Immunology
Contracts Review Committee

Pursuant lo Public Law 92-463, notice
is hereby given of the meeting of the
Cancer Biology-Immunology Contracts
Review Committee, National Cancer
Institute, National Institutes of Health,
September 14,1990, Chevy Chase
Holiday Inn, Palladian West Room. 5520
Wisconsin Avenue, Chevy Chase,
Maryland 20815.

This meeting will be open to the
public on September 14 from 9 a.m. to 10
a.m. to discuss administrative details.
Attendance by the public will be limited
to space available.

In accordance with provisions set
forth in secitons 552b(c)(4) and
552b(c)(6), title 5. U.S.C. and section
10(d) of Public Law 92-463, the meeting
will be closed to the public on
September 14 from 10 a.m. to
adjournment for the review, discussion
and evaluation of individual contract
proposals. These proposals and the
discussions could reveal confidential
trade secrets or commercial property
such as patentable material and
personal information concerning
individuals associated with the
proposals, disclosure of which would
constitute a dearly unwarranted
invasion of personal privacy.

The Committee Management Officer,
National Cancer Institute, Building 31.
Room 10A06, National Institutes of
Health, Bethesda, Maryland 20892 (301/
496-5708) will provide summaries of the
meeting and rosters of committee
members upon request.

Dr. Lalita D. Palekar, Executive
Secretary', Cancer Biology-Immunology
Contracts Review Committee, 5333
Westbard Avenue, Room 805, Bethesda,
Mary land 20892 (301/496-7575) wiP
furnish substantive program
information.

Federal Register / Vol. 55. No. 171 / Tuesday. September 4. 1990 / Notices

35961

Dated: August 23,1990.

Betty J. Beveridge,

Committee Management Officer, NIH.

[FR Doc. 90-20686 Filed 8-31-90; 8:45 am]

81 LUNG CODE 4140-01-11

Public Health Service

Request for Nominations for Voting
Members on National Vaccine
Advisory Committee

agency: Public Health Service, HHS.
action: Notice.

summary: The Department of Health
and Human Services (DHHS) is
requested nominations to fill four
vacancies on the National Vaccine
Advisory Committee. The Committee
advises the National Vaccine Program
and was established by title XXI,
subtitle I. section 2105 of the Public
Health Service Act, enacted by Public
Law 99-660, The National Vaccine
Injury Compensation Act of 1986 (42
U.S.C. 300AA-1 et seq.)
dates: Nominations are to be submitted
by October 1,1990.
addresses: All nominations for
membership should be sent to Dr. Yuth
Nimit (address below).

FOR FURTHER INFORMATION CONTACT:
Yuth Nimit, Ph.D., Executive Secretary,
National Vaccine Advisory Committee,
National Vaccine Program, Office of the
Assistant Secretary for Health, room
13A-53, Parklawn Building. 5600 Fishers
Lane, Rockville, Maryland 20857, (301)
443-0715; Fax number: (301) 443-3386.
SUPPLEMENTARY INFORMATION: The
National Vaccine Program is requesting
nominations of voting members for four
vacancies on the National Vaccine
Advisory Committee. Nominated
individuals should have expertise in
vaccine research or the manufacture of
vaccines, or should be physicians, or
members of parent organizations
concerned with immunization, or
representatives of State or local health
agencies, or public health organizations.
Members will be invited to serve four
year terms.

The National Vaccine Advisory
Committee (1) studies and recommends
ways to encourage the availability of an
adequate supply of safe and effective
vaccination products in the United
States, (2) recommends research
priorities and other measures the
Director of the Program should take to
enhance the safety and efficacy of
vaccines, (3) advises the Director of the
Program in the implementation of
sections 2102, 2103, and 2104 of the

Public Health Service Act, and (4)
identifies annually for the Director of
the Program the most important areas of
government and nongovernment
cooperation that should be considered
in implementing these sections.

In keeping with normal departmental
policy, nominees generally should not
currently be serving on another DHHS
advisory committee, although
exceptions will be considered.

DHHS has a special interest in
ensuring that women, minority groups,
and the physically handicapped are
adequately represented on advisory
committees. Final selection will be
determined by the expertise of the
candidates and in a manner to ensure
appropriate balance of Membership.
NOMINATION PROCEDURES: Any
interested person may nominate one or
more qualified persons for membership
on the National Vaccine Advisory
Committee. The nominee should be
aware of the nomination, willing to
serve as a member of the committee and
appear to have no conflict of interest
that would preclude committee
membership. A curriculum vitae of the
nominee should be submitted with the
nomination.

Dated: August 17,1990.

James O. Mason,

Assistant Secretary for Health.

[FR Doc. 90-20714 Filed 8-31-90; 8:45 am|

BILLING CODE 4160-17-M

National Toxicology Program, National
Toxicology Program; Announcement
of Intent To Conduct Long-term
Toxicological Studies of Five
Chemicals; Request for Comments

As part of an effort to inform the
public, the National Toxicology Program
(NTP) routinely announces in die
Federal Register the lists of chemicals
for which it intends to conduct long-term
toxicological studies. This
announcement will allow interested
parties to comment and provide
information on chemicals under
consideration for long-term toxicology
and carcinogenesis studies.

1. Coconut oil fatty acids
diethanolamine, 2:1 condensate (68603-
42-9)—13-week and 2-year studies via
skin application in B6C3F1 mice and
F344 rats.

2. N,N-Di(2-hydroxyethyl)lauramide
(120—10-1)—13-week and 2-year studies
via skin application in B6C3F1 mice and
F344 rats.

3. N,N-Di(2-hydroxyethyl)oleamide

(13961-86-9)—13-week and 2-year
studies via skin application in B6C3F1
mice and F344 rats.

4. Anthraquinone (84-65-1)—13-week
and 2-year studies via dosed feed in
B6C3F1 mice and F344 rats.

5. Furfuryl alcohol (98-00-0)—2-year
studies via inhalation exposure in
B6C3F1 mice and F344 rats.

Anyone having relevant information
(including ongoing toxicological studies,
current or future trends in production
and import, use pattern, human
exposure levels, and toxicological data)
to share with the NTP on any of these
chemicals, should contact Dr. William
Eastin within 60 days of the appearance
of this announcement. The information
provided will be considered by the NTP
in designing these studies.

Contact may be made by mail to: Dr.
William Eastin. NIEHS/NTP. P.O. Box
12233, Research Triangle Park, North
Carolina 27709 or by telephone at 919-
541-7941.

Dated: August 28,1990.

David P. Rail,

Director, National Toxicology Program.

[FR Doc. 90-20665 Filed 8-31-90; 8:45 am]
BILUNG CODE 4140-01-M

DEPARTMENT OF THE INTERIOR

Bureau of Land Management

[ ID-050-00-1520-101

Date for a Meeting of the Shoshone
District Advisory Council;

Rescheduled to a Later Date

AGENCY: Bureau of Land Management
[BLM], Interior.

action: Notice of date change for
district advisory council meeting.

summary: This notice changes the date
of the meeting from September 27,1990
to October 11,1990, previously
published in the Federal Register August
23,1990, [55 FR 3462] to set forth the
schedule and proposed agenda for a
meeting of the Shoshone District
Advisory Council.

The remainder of the previously
published Notice remains unchanged.

Dated: August 23,1990.

Janis VanWyhe,

Associate District Manager.

[FR Doc. 99-20488 Filed 8-31-90; 8:45 am]

BILLING CODE 4310-GG-M

35962

Federal Register / VoL 55, No. 171 / Tuesday, September 4, 1990 / Notices

Fish and Wildlife Service

Withdrawal of Draft Environmental
Impact Statement on Management of
the National Wildlife Refuge System
and Intent To Prepare a New
Combined Management Plan and
Environmental impact Statement

agency: Fish and Wildlife Service,
Interior.

action: Notice.

summary: The U.S. Fish and Wildlife
Service (Service) has withdrawn the
draft of a programmatic environmental
impact statement (EIS) on the
management of the National Wildlife
Refuge System (NWRS) and begun the
preparation of a new, more
comprehensive document. The new
combined management plan and EIS
will be titled “Refuges 2003—A Plan for
the Future*' (Refuges 2003). the date
coinciding with the 100th anniversary of
the establishment of the first national
wildlife refuge in 1903. This Notice
advises the public that all comments
received on the withdrawn draft EIS will
be considered in the preparation of the
new combined management plan and
EIS. Moreover, to allow for additional
opportunities for public input and
participation in the preparation of the
new document, a series of public
meetings and workshops will be held
throughout the country.

FOR FURTHER INFORMATION CONTACT:
Robert Pacific, Division of Refuges. U.S.
Fish and Wildlife Service. Mail Stop 670
ARLSQ, 1849 C Street. NW.,

Washington, DC 20240.

SUPPLEMENTARY INFORMATION: On
December 12,1988 (53 FR 49931). the
Service announced the availability, for
public review and comment, of a draft
EIS for the management of the NWRS
pursuant to section 102(2)(C) of the
National Environmental Policy Act of
1969 (NEPAJ. The statement described
four alternatives for managing national
wildlife refuges and the environmental
consequences of implementing each
alternative. A broad range of significant
concerr.3 was expressed by many of the
over 33,000 comments received by the
Service in response to that
announcement.

After careful review and analysis of
the substantive comments, the decision
was made to withdraw the draft EIS and
prepare a new document. Refuges 2003.
for public review and comment prior to
preparing a final EIS. Refuge

management issues raised by those who
commented on the draft EIS will be
more fully addressed in the new
document. These issues will include:

4 Management of Nongame Species

* The Compatibility Process

* Economic Uses on Refuge Lands

* Role of Hunting and Trapping as
Management Tools

* Recreational Activities on Refuges

* Land Acquisition Needs/Priorities

* Use of Pesticides

* Predator Management

* Management and Designation of Special
Management Areas (e.g. Reserach Natural
Areas, Wilderness Areas, Wild and Scenic
Rivers)

* Habitat Management

* Protection of Biological Diversity

* Enhancement of Environmental Education
Opportunities

* Enhancement of Fisheries Programs

* Environmental Contaminants

* Water Issues (e g. Federal Water Rights,
Water Quantity and Quality)

* Management of Threatened and
Endangered Species

* Waterfowl Management

Refuges 2003 will also address the
impact of important recent legislation on
the NWRS, including the Emergency
Wetlands Resources Act of 1986, the
Farm Dill and the North American
Wetlands Conservation Act of 1988, as
well as how the NWRS complement the
“No Net Loss” of wetlands goal.

In addition, Refuges 2003 will expand
on the background information
presented on the NWRS and include a
greater range of reasonable alternatives
for the management of the NWRS. The
schedule for the preparation of the new
combined management plan and EIS
will include numerous public meetings
nationwide. The draft management plan
and EIS is scheduled to be released in
December 1991 and the final plan/EIS in
September 1992.

The environmental review of this
project will be conducted in accordance
with the requirements of the NEPA, as
amended (42 U.S.C. 4321, et seq.\ NEPA
Regulations (40 CFR parts 1500-1508),
other appropriate Federal regulations,
and Service procedures for compliance
with those regulations.

Dated: August 24,1990.

Bruce Blanchard,

Acting Director, Fish and Wildlife Service .

[FR Doc. 90-20723 Filed 8-31-90; 8:45 am)
BILLING COPE 4310-55-M

INTERSTATE COMMERCE
COMMISSION

I Arndt. No. 1 to Service Order No. 1510)

D&H Corp. 1 Canadian Pacific LTD.
Authorized To Operate Tracks of
Delaware and Hudson Railway Co.,
Debtor (Francis P. DiCeffo, Trustee)

AGENCY: Interstate Commerce
Commission.

action: Amendment No. 1 to Service
Order No. 1510 extends the order’s
effectiveness for 90 days as requested
by Francis P. DiCello, Trustee in
reorganization of the Delaware and
Hudson Railway Company (D&H), and
D&H Corporation/Canadian Pacific
Limited (D&H Corp./CP Rail.

summary: Service Order No. 1510,
issued July 31,1990, pursuant to 49
U.S.C. 11123(a), authorized D&H Corp./
CP Rail to operate without Federal
subsidy or other Federal compensation
over tracks of the D&H for 30 days [i.e.,
from, August 1 , 1990 until August 30.
1990), while the Commission conducted
the required hearing to considewr
extension of the authority beyond 30
days. Service Order No. 1510 is hereby
extended for 90 days.

EFFECTIVE DATE: This order shall
become effective at 11:59 p.m., August
30,1990, and shall remain in effect until
11:59 p.m., November 28,1990, unless
otherwise modified, amended, or
vacated by order of this Commission.
FOR FURTHER INFORMATION CONTACT
Bernard Gaillard, (202) 275-7849, or
Melvin F. Clemens. (202) 275-1559, (TDD
for hearing impaired: (202) 275-1721).
SUPPLEMENTARY INFORMATION: Upon
application by Francis P. DiCello,
Trustee in reorganization of the D&H.
and D&H Corp./CP Rail and based upon
representations of support by The New
York State Department of
Transportation (NYSDOT) and the U.S.
Department of Transportation, Federal
Railroad Administration (FRA). Service
Order No. 1510 was entered, pursuant to
49 U.S.C. 11123(a), for an initial period of
30 days.

All comments received uniformly
support a continuation of this emergency
authority. Shippers and the NYSDOT
base their support on the absence of

1 D&H Corporation is a wholly owned subsidiary
of Canadian Pacific Limited that was formed to
acquire the assets of the Delaware and Hudson
Railway Company. That acquisition is being
considered by the Commission in Finance Docket
No. 31700.

Federal Register / Vol. 55. No. 171 / Tuesday. September 4. 1990 / Notices

35963

alternative service to many shippers in
the region served by D&H If D&H Corp.
is not allowed by this authority to
continue its emergency operations.

During the initial period of the order,
D&H Corp. has demonstrated that with
support of its parent, CP Rail, it has the
necessary financial resources and the
managerial and operational capability to
provide continued rail service on the
D&H lines.

The Commission herein certifies that
the emergency which prompted entry of
the original order in this proceeding
continues and extends the authority for
D&H Corp./CP Rail to operate D&H
lines for an additional 90 days. This will
assure D&H shippers of continued
essential rail services, without
interruption, during the pendency of the
acquisition proceeding (Finance Docket
No. 31700).

Additional information is contained in
the Commission’s decision. To purchase
a copy of the full decision, write to, call,
or pick up a copy in person from:
Dynamic Concepts, Inc., Room 2229,
Interstate Commerce Commission
Building, Washington, DC 20423.
Telephone: (202) 289-4357/4359.

Decided: August 28.1990.

By the Commission, Chairman Philbln, Vice
Chairman Phillips. Commissioners Simmons.
Lamboley and Emmett.

Sidney L» Strickland. )r..

Secretary.

|FR Doc. 90-20720 Filed 8-31-90: 8:45 am|
BILLING CODE 7035-01-M

(Finance Docket No. 31724]

Exemption; Columbus & Greenville,
Railway Co.; Trackage Rights
Exemption Southrail Corp.

Southrail Corporation (SR) has agreed
to grant overhead trackage rights to
Columbus & Greenville Railway
Company (C&G) over SR’s main track at
or near West Point, MS, between the
switching point with connecting track to
be constructed 1,087 feet north of SR
milepost AJ-87 (valuation station
4595 -r 01) 1 and the point of a direct
connection to be constructed by C&G
just south of the intersection of C&G's
former main track with Mississippi State
Highway No. 50, a distance of 1.6 miles. * 2
The trackage rights were to become
effective on or after August 24,1990.

This transaction is related to another
trackage rights agreement whereby C&G

1 Other connecting tracks to be constructed will
intersect with the line covered by the trackage
rights inv olved here at a point 3.067 feet north of SR
milepost AJ-87 (valuation station 4615 + 01).

* This construction would involve C&G lining
over SRs Old Scale Track east of SR’s West Point
Depot

will allow SR to operate over its lines. 3
That transaction also involves
construction of connecting tracks that
will allow C&G and SR to use certain of
each other’s lines in effect as joint
facilities. 4

This notice is filed under 49 CFR
1180.2(d)(7). Petitions to revoke the
exemption under 49 U.S.C. 10505(d) may
be filed at any time. The filing of a
petition to revoke will not stay the
transaction. Pleadings must be filed with
the Commission and served on: Lester
A. Sittler. 137 Main Street, P.O. Box 128,
Cooperstown, NY 13320.

As a condition to the use of this
exemption, any employees affected by
the trackage rights will be protected
pursuant to Norfolk and Western Ry.

Co.—Trackage Rights — BN, 354 I.C.C.
605 (1978), as modified in Mendocino
Coast Ry., Inc.—Lease and Operate, 360
I.C.C. 653 (1980).

Dated: August 28,1990.

By the Commission, Richard B. Felder,
Acting Director, Office of Proceedings.

Sidney L. Stricland, Jr.,

Secretory.

[FR Doc. 90-20720 Filed 8-31-90: 8:45 am]

BILLING CODE 7035-01-41

DEPARTMENT OF JUSTICE

Antitrust Division
(Civil Action No. 90-1986]

United States v. Brown & Root, Inc.,
Proposed Final Judgment and
Competitive Impact Statement

Notice is hereby given pursuant to the
Antitrust Procedures and Penalties Act,
15 U.S.C. 16(b)—(h), that a proposed Final
Judgment, Stipulation, and Competitive
Impact Statement have been filed with
the United States District Court for the
District of Columbia in United States of
America v. Brown &Root, Inc.,
Halliburton Company, and Offshore
Pipelines, Inc.

The Complaint of the United States in
this case alleges that the acquisition
from Brown & Root, Inc. (“B&R”) by
Offshore Pipelines, Inc. (“OPr) may
substantially lessen competition in the
provision of pipelay and pipebury barge

• Finance Docket No. 31719, Southrail

Corporation—Trackage Rights Exemption —
Columbus and Greenville Railway Company (not

printed), corrected notice served and published
August 24.1990 (55 FR 34777-8).

4 C&G and SR have not indicated that either of
them has sought Commission approval for
construction of the connecting lines. It is unclear
whether this construction is subject to Commission
jurisdiction. If the Commission does have
jurisdiction, they must either file appropriate
applications under 49 U.S.C 10901 or seek
exemption under 49 U.S.C 10505.

services in water depths of
approximately 200 to 400 feet or with
pipe diameters greater than 12 inches ir.
the United States Gulf of Mexico
(“intermediate pipelay/pipebury
market”) in violation of section 7 of the
Clayton Act.

Pipelay and pipebury barge services
are contracted for by oil companies to
install and bury pipeline in connection
with the offshore development and
production of crude oil and natural gas
in the United States Gulf of Mexico.
Pipelay barges, pipebury barges, and
combination pipelay/pipebury barges
are specially designed, built or modified,
and equipped to be capable of laying
and/or burying pipeline on the sea
bottom. Vessels vary in their
capabilities to lay or bury certain
diameters of pipe and to do so in certain
water depths largely based on the size
of the vessel. Firms that provide
pipelay/pipebury barge services in the
United States Gulf of Mexico compete
with each other for bids. In 1989, total
sales in the intermediate pipelay/
pipebury market were over $20 million,
with OPI accounting for about 27% of the
market and B&R accounting for about
31%.

The proposed Final Judgment requires
OPI to divest certain pipelay/pipebury
vessels—the BAR-278 pipelay/pipebury
barge and the LB-282 pipelay/pipebury
barge, by March 15,1991. If OPI does not
sell these assets by then, a trustee will
be appointed to conduct the divestiture.

Public comment on the proposed Final
Judgment is invited within the statutory
60-day comment period. Such comments,
and responses thereto, will be published
in the Federal Register and filed with the
Court. Comments should be directed to
Mark C. Schechter, Chief,
Transportation, Energy and Agriculture
Section. Antitrust Division, Room 9403,
Judiciary Center Building, 555 4th Street,
NW., Washington, DC 20001 (202/307-
6349).

Joseph H. Widmar,

Director of Operations.

Stipulation

It is stipulated by and between the
undersigned parties, by their respective
attorneys, that:

1. The Court has jurisdiction over the
subject matter of this action and over
each of the parties thereto, and venue of
this action is proper in the District of
Columbia:

2. The parties consent that a Final
Judgment in the form hereto attached
may be filed and entered by the Court,
upon the motion of any party or upon
the Court’s own motion, at any time
after compliance with the requirements
of the Antitrust Procedures and
Penalties Act (15 U.S.C. 16), and without

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Federal Register / Vol. 55, No. 171 / Tuesday, September 4, 1990 / Notices

further notice to any party or other
proceedings, provided that Plaintiff has
not withdrawn consent, which it may do
at any time before the entry of the
proposed Final Judgment by serving
notice thereof on Defendants and by
filing that notice with the Court;

3. The parties shall abide by and
comply with the provisions of the Final
Judgment pending its entry, and shall,
from the date of the filing of this
Stipulation, comply with all terms and
provisions thereof a9 though the same
were in full force and effect as an order
of the Court;

4. In the event Plaintiff withdraws its
consent or if the proposed Final
Judgment is not entered pursuant to this
Stipulation, this Stipulation shall be of
no effect whatever, and the making of
this Stipulation shall be without
prejudice to any party in this or any
other proceeding.

Dated: August 17,1990.

For Plaintiff United States of America.
James F. Rill,

Assistant Attorney Genera/.

Judy Whatley,

John W. Clark,

Roger W. Fones,

Attorneys. U,S. Department of Justice,
Antitrust Division.

Burney P. Clark,

Anne E. Blair,

Angela L Hughes,

Jill Ptacek.

Attorneys , U.S. Department of Justice,
Antitrust Division, Judiciary Center
Building. 555 Fourth Street, NW.,
Washington, DC 20001. [202) 307-0092.

For Defendants—Brown and Root, Inc. and
Halliburton Co.

Vinson & Elkins, 1455 Pennsylvania Avenue,
NW., Washington, DC 20004-1007. (202)
639-6580.

Ky P. Ewing, Jr.,

A Member of the Firm.

For Defendant—Offshore Pipelines. Inc.
Jones, Walker, Waechter, Poitevenl. Carrere
& Denegre. 201 St. Charles Avenue, New
Orleans, Louisiana 70170, (202) 504-582-
8000.

William B. Masters,

A Member of the Firm.

Stipulation Approved for Filing
Done this 17th day of August, 199a
Judge Jackson,

United States District fudge.

Final Judgment

Whereas, plaintiff. United States of
America, having filed ita Complaint
herein on August 17.1990, and plaintiff
and defendants, by their respective
attorneys, having consented to the entry
of this Final Judgment without trial or
adjudication of any issue of fact or law
herein and without this Final Judgment

constituting any evidence against or an
admission by any party with respect to
any such issue;

And whereas , defendants have agreed
to be bound by the provisions of this
Final Judgment pending its approval by
the Court;

And whereas, prompt and certain
divestiture is the essence of this
agreement, and defendants have
represented to plaintiff that the
divestiture required below can and will
be made and that defendants will later
raise no claims of hardship or difficulty
as grounds for asking the Court to
modify any of the divestiture provisions
contained below:

Now, therefore, before the taking of
any testimony and without trial or
adjudication of any issue of fact or law
herein, and upon consent of the parties
hereto, it is hereby

Ordered, adjudged and decreed as
follows:

I. Jurisdiction

This Court has jurisdiction over the
subject matter of this action and over
each of the parties hereto. The
Complaint states a claim upon which
relief may be granted against
defendants under section 7 of the
Clayton Act, as amended (15 U.S.C. 18).

II. Definitions

As used in this Final Judgment:

A. BSrR means defendant Brown &
Root, Inc.; each division, subsidiary, or
affiliate thereof, and each officer,
director, employee, attorney, agent or
other person acting for or on behalf of
any of them.

B. Halliburton means defendant
Halliburton Company: each division,
subsidiary, or affiliate thereof, and each
officer, director, employee, attorney,
agent or other person acting for or on
behalf of any of them.

C. OP1 means defendant Offshore
Pipelines, Inc.: each division, subsidiary,
or affiliate thereof, and each officer,
director, employee, attorney, agent, or
other person acting for or on behalf of
any of them.

D. The divestiture assets means the
marine construction vessels designated
the BAR-278 pipelay barge and the LB-
282 combination pipelay/pipebury
barge.

E. Person means any natural person,
corporation, association, firm,
partnership, or other business or legal
entity.

III. Applicability

A. The provisions of this Final
Judgment shall apply to the defendants,
to their successors and assigns, to their
subsidiaries, affiliates, directors.

officers, managers, agents, and
employees, and to all other persons in
active concert or participation with any
of them who shall have received actual
notice of this Final Judgment by
personal services or otherwise.

B. Defendants shall require, as a
condition of the sale or other disposition
of all or substantially all of their assets
or stock, that the acquiring party agree
to be bound by the provisions of this
Final Judgment.

C. Nothing herein shall request that
any portion of this Final Judgment is or
has been created for the benefit of any
third party, and nothing herein shall be
construed to provide any rights to any
third party.

IV. Divestiture of Assets

A. Defendant OPI is hereby ordered
and directed to divest to a purchaser
prior to March 15,1991, all of its direct
and indirect ownership and control of
the divestiture assets. The obligation to
divest shall be satisfied if, by March 15,
1991, OPI enters into a binding contract
for sale of the divestiture assets to a
purchaser approved by plaintiff,
according to terms approved by plaintiff,
that is contingent only upon compliance
with the terms of this Final Judgment
and that specifies a prompt and
reasonable closing date no later than
May 15,1991, and if sale is completed
pursuant to the contract.

B. If defendant OPI has not
accomplished the required divestiture
prior to March 15,1991, plaintiff may, in
its sole discretion, extend this time
period for an additional period of time
not to exceed three months, if OPI
requests such an extension and
demonstrates to plaintiffs satisfaction
that it has made bona fide efforts to sell
the divestiture assets and that there is a
reasonable expectation that the assets
can be sold in the requested extended
time period, but that the divestiture
cannot be completed prior to March 15,
1991.

C. Defendant OPI agrees to take all
reasonable steps to accomplish quickly
said divestiture. In carrying out its
obligations to divest the divestiture
assets, OPI may divest these assets
alone, or may divest along with these
assets any other assets of OPI.

D. In accomplishing the divestiture
ordered by this Final Judgment,
defendant OPI promptly shall make
known in the United States, by usual
and customary means, the availability of
the divestiture assets, for sale.

Defendant OPI shall notify any person
making an inquiry regarding the possible
purchase of the divestiture assets that
the sale is being made pursuant to this

Federal Register / Vol. 55, No. 171 / Tuesday, September 4, 1990 /—Notice^

35965

Final Judgment and provide such person
with a copy of the Final Judgment. The
defendants shall also offer to furnish to
all bona fide prospective purchasers of
the divestiture assets, subject to
customary confidentiality assurances,
all pertinent information regarding the
divestiture assets. Defendants shall
provide such information to the plaintiff
no later than the time they furnish such
information to any other person.
Defendants shall permit prospective
purchasers of the divestiture assets to
have access to personnel knowledgeable
about the divestiture assets, and to
make such inspection of physical
facilities and any and all financial,
operational, or other documents and
information as may be relevant to the
sale of the divestiture assets.

E. Divestiture required by Section IV.
of the Final Judgment shall be
accomplished in such a way as to satisfy
plaintiff, in its sole discretion, that the
divestiture assets can and will be
operated by the purchasers as part of a
viable, ongoing business providing
pipelay and pipebury barge services in
the United States Gulf of Mexico.
Divestiture shall be made to a purchaser
for whom it is demonstrated to
plaintiffs satisfaction that 11) The
purchase is for the purpose of competing
effectively in the provision of pipelay
and pipebury barge services in the
United States Gulf of Mexico, and (2)
the purchaser has the managerial,
operational, and financial capability to
compete effectively in the provision of
pipelay and pipebury barge services in
the United States Gulf of Mexico.

F. Divestiture required by Section IV.
of the Final Judgment shall not be made
to McDermott Incorporated or Pipe
Lines Unlimited Services (PLUS) or any
of their affiliates or subsidiaries, or to
any company planning to move the
assets out of the United States Gulf of
Mexico.

G. Except to the extent otherwise
approved by plaintiff, any assets
divested pursuant to this Final Judgment
shall be divested free and clear of all
mortgages, encumbrances and material
liens, other than any inchoate statutory,
admiralty, maritime, or common law
liens for obligations not yet due and
payable. Defendant OPI shall indemnify
the purchaser of any assets divested
pursuant to this Final Judgment for any
such outstanding liens.

V. Appointment of Trustee

A. If defendant OPI has not
accomplished the divestiture required
by Section IV. of the Final Judgment by
February 15,1991, defendants shall
notify plaintiff of that fact. Within ten
(10) days of that date, or twenty (20)

days prior to the expiration of any
extension granted pursuant to Section
IV. B.. whichever is later, plaintiff shall
provide defendant OPI with written
notice of the name9 and qualifications of
not more than two (2) nominees for the
position of trustee for the required
divestiture. Plaintiff will in good faith
seek to assure that at least one of the
nominees shall be a ship broker engaged
primarily in the business of purchasing
and selling vessels, including marine
construction vessels. Defendant OPI
shall notify plaintiff within ten (10) days
thereafter whether either or both of such
nominees are acceptable. If either or
both of such nominees are acceptable to
defendant OPI, plaintiff shall notify the
Court of the person upon whom the
parties have agreed and the Court shall
appoint that person as the trustee. If
neither of such nominees is acceptable
to defendant OPI, it shall furnish to
plaintiff, within ten (10) days after
plaintiff provides the names of its
nominees, written notice of the names
and qualifications of not more than two
(2) nominees for the position of trustee
for the required divestiture. If either or
both of such nominees are acceptable to
plaintiff, plaintiff shall notify the Court
of the person upon whom the parties
have agreed and the Court shall appoint
that person as the trustee. If neither of
such nominees is acceptable to plaintiff,
it shall furnish the Court the names and
qualifications of the nominees proposed
by plaintiff and defendant OPI. The
Court may hear the parties as to the
qualifications of the nominees and shall
appoint one of the nominees as the
trustee.

B. If defendant OPI has not
accomplished the divestiture required
by Section IV. of this Final Judgment at
the expiration of the time period
specified in Section IV. A. or IV. B. of
this Final Judgment, 89 applicable, the
appointment by the Court of the trustee
shall become effective. The trustee shall
then take steps to effect divestiture of
the divestiture assets; provided,
however, that the appointment of the
trustee shall not become effective if,
prior to expiration of the applicable time
period, defendant OPI has notified
plaintiff pursuant to Section VI. of this
Final Judgment of a proposed divestiture
of the divestiture assets and plaintiff has
not filed a written notice that it objects
to said proposed divestiture.

C. After the trustee’s appointment has
become effective, only the trustee shall
have the right to sell any assets as to
which it has been designated to effect
divestiture. The trustee shall have the
power and authority to accomplish
divestiture to a purchaser acceptable to
plaintiff at such price and on such terms

as are then obtainable upon a
reasonable effort by the trustee, having
due regard for the fair market value of
the divestiture assets and the necessity
of effectuating a prompt divestiture in
order to preserve competition in the
pipelay/pipebury market in the Gulf of
Mexico, subject to the provisions of
Section VL of this Final Judgment, and
shall have such other powers as this
Court shall deem appropriate.

Defendant OPI shail not object to a sale
of the divestiture assets by the trustee
on any grounds other than the trustee’s
malfeasance. Any such objection by OPI
must be conveyed in writing to plaintiff
and the trustee within fifteen (15) days
after the trustee has notified defendant
OPI of the proposed sale in accordance
with Section VI. of this Final Judgment.

D. The trustee shall serve at the cost
and expense of defendant OPI, shall
receive compensation based on a fee
arrangement providing an incentive
based on price and terms of the
divestiture and the speed with which it
is accomplished, and shall serve on such
other terms and conditions as the Court
may prescribe; provided, however, that
the trustee shall receive no
compensation, nor incur any costs or
expenses, prior to the effective date of
his or her appointment. The trustee shall
account for all monies derived from a
sale of the divestiture assets and all
costs and expenses incurred in
connection therewith. After approvul by

• the Court of the trustee’s accounting,
including fees for its services, all
remaining monies shall be paid to
defendant OPI and the trust shall then
be terminated.

E. Defendants shall take no action to
interfere with or impede the trustee’s
accomplishment of the divestiture and
shall use their best efforts to assist the
trustee in accomplishing the required
divestiture. The trustee shall have full
and complete access to the personnel,
books, records, and facilities related to
the divestiture assets, and defendants
shall develop such financial or other
information relevant to the divestiture
assets as the trustee may request

F. After its appointment becomes
effective, the trustee shall file monthly
reports with the parties and the Court
setting forth the trustee’s efforts to
accomplish divestiture as contemplated
under this Final Judgment; provided,
however, that to the extent such reports
contain information that the trustee
deems confidential, such reports shall
not be filed in the public docket of the
Court. Such reports shall include the
name, address, and telephone number of
each person who. during the preceding
thirty (30) days, made an offer to

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Federal Register / Vol. 55, No. 171 / Tuesday, September 4, 1990 / Notices

acquire, expressed an interest in
acquiring, entered into negotiations to
acquire, or was contacted or made an
inquiry about acquiring, any ownership
interest in the divestiture assets, and
shall describe in detail each contact
with any such person during that period.
The trustee shall maintain full records of
all efforts made to divest these assets.

G. Within six months after its
appointment has become effective, if the
trustee has not accomplished the
divestiture required by Section V. of this
Final Judgment, the trustee shall
promptly file with the Court a report
setting forth (1) The trustee’s efforts to
accomplish the required divestiture, (2)
the reasons, in the trustee’s judgment,
why any required divestiture has not
been accomplished, and (3) the trustee’s
recommendations; provided, however,
that to the extent such report contains
information that the trustee deems
confidential, such report shall not be
filed in the public docket of the Court.
The trustee shall at the same time
furnish such report to the parties, who
shall each have the right to be heard and
to make additional recommendations
consistent with the purpose of the trust.
The Court shall thereafter enter such
orders as it shall deem appropriate in
order to carry out the purpose of the
trust, which shall, if necessary, include
extending the trust and the term of the
trustee’s appointment, or ordering the
divestiture assets to be sold to
defendant B&R at a price the Court
determines.

VI. Notification

Immediately following entry of a
binding contract, contingent upon
compliance with the terms of this Final
Judgment, to effect any proposed
divestiture pursuant to Section IV. or V.
of this Final Judgment, defendant OPI or
the trustee, whichever is then
responsible for effecting the divestiture,
shall notify plaintiff of the proposed
divestiture, if the trustee is responsible,
it shall similarly notify defendant OPI.
The notice shall set forth the details of
the proposed transaction and list the
name, address, and telephone number of
each person not previously identified
who offered to acquire, or expressed an
interest in acquiring or desire to acquire
any ownership interest in the divestiture
assets, together with full details of same.
Within fifteen (15) days or receipt by
plaintiff of such notice, plaintiff may
request additional information
concerning the proposed divestiture and
the proposed purchaser. Defendant OPI
and/or the trustee shall furnish any
additional information requested within
twenty (20) days of the receipt of the
request, unless the parties shall

otherwise agree. Within thirty (30) days
after receipt of the notice or within
twenty (20) days after plaintiff has been
provided the additional information
requested (including any additional
information requested of persons other
than defendants or the trustee),
whichever is later, plaintiff shall provide
written notice to defendant OPI and the
trustee, if there is one, stating whether
or not it objects to the proposed
divestiture. If plaintiff provides written
notice to defendant OPI and/or the
trustee that it does not object, then the
divestiture may be consummated,
subject only to defendant OPI’s limited
right to object to the sale under the
proviso in Section V. C. Upon objection
by plaintiff, a divestiture proposed
under Section IV. shall not be
consummated. Upon objection by
plaintiff, or by defendant OPI under the
proviso in Section V. C„ a divestiture
proposed under Section V. shall not be
consummated unless approved by the
Court.

VII. Affidavits

Upon filing of this Final Judgment and
every thirty (30) days thereafter until the
divestiture has been completed or
authority to effect divestiture passes to
the trustee pursuant to Section V. of the
Final Judgment, defendant OPI shall
deliver to plaintiff an affidavit as to the
fact and manner of compliance with
Section IV. of the Final Judgment. Each
such affidavit of OPI shall include the
name, address, and telephone number of
each person who, at any time after the
period covered by the last such
affidavit, made an offer to acquire,
expressed an interest in acquiring,
entered into negotiations to acquire, or
was contacted or made an inquiry about
acquiring, any ownership interest in the
divestiture assets, and shall describe in
detail each contact with any such
person during that period. Defendant
OPI shall maintain full records of all
efforts made to divest these operations.

VIII. Financing

With prior consent of the plaintiff,
defendant may finance all or any part of
any purchase made pursuant to Sections
IV. or V. of this Final Judgment.

IX. Preservation of Assets

Until the divestitute required by the
Final Judgement has been accomplished:

A. Defendant OPI shall take all steps
necessary to assure that the divestiture
assets are maintained as separate,
distinct, and salable assets, apart from
other assets of OPI. OPI shall use all
reasonable efforts, including utilizing the
divestiture assets to perform contractual
obligations, to maintain these assets in a

condition which makes them usable as
part of a viable and active business of
providing pipelay and pipebury services.

B. Defendant OPI shall not sell, lease,
assign, transfer, or otherwise dispose of,
or pledge as collateral for loans (except
such loans as are currently outstanding
or replacement or substitutes therefore),
the divestiture assets; provided that the
divestiture assets may be mortgaged to
secure financing for the acquisition of
the divestiture assets as long as the
mortgage is required to be released upon
any sale made in compliance with this
Final Judgment without regard to the
price received therefore.

C. Defendant OPI shall preserve the
divestiture assets in a state of repair
equal to their state of repair as of the
date of this Final Judgment, ordinary
wear and tear excepted. Defendants
shall preserve the documents, books,
and records relating to the divestiture
assets until the date of divestiture.

D. Defendants shall refrain from
taking any action that would jeopardize
the sale of the divestiture assets.

X. Compliance Inspection

For the purposes of determining or
securing compliance with the Final
Judgment and subject to any legally
recognized privilege, from time to time:

A. Duly authorized representatives of
the Department of Justice shall, upon
written request of the Attorney General
or of the Assistant Attorney Ceneral in
charge of the Antitrust Division, and on
reasonable notice to any defendant
made to its principle office, be
permitted:

1. Access during office hours of such
defendant to inspect and copy all books,
ledgers, accounts, correspondence,
memoranda, and other records and
documents in the possession or under
the control of such defendant, who may
have counsel present, relating to any
matters contained in this Final
Judgment; and

2. Subject to the reasonable
convenience of such defendant and
without restraint or interference from it,
to interview officers, employees, and
8gents of such defendant, who may have
counsel present, regarding any such
matters.

B. Upon the written request of the
Attorney General or of the Assistant
Attorney General in charge of the
Antitrust Division made to any
defendant’s principal office, such
defendant shall submit such written
reports, under oath if requested, with
respect to any of the matters contained
in this Final Judgment as may b^
requested.

Federal Register / Vol. 55, No. 171 / Tuesday, September 4, 1990 / Notices

35967

C. No information or documents
obtained by the means provided in this
Section X. shall be divulged by a
representative of the Department of
Justice to any person other than a duly
authorized representative of the
Executive Branch of the United States,
except in the course of legal proceedings
to which the United States is a party
(including grand jury proceedings), or
for the purpose of securing compliance
with this Final Judgment, or as
otherwise required by taw.

D. If at the time information or
documents are furnished by any
defendant to plaintiff, such defendant
represents and identifies in writing the
material in any such information or
documents to which a claim of
protection may be asserted under rule
26(c)(7) of the Federal Rules of Civil
Procedure, and such defendant marks
each pertinent page of such material.
“Subject to claim of protection under
rule 26(c)(7) of the Federal Rules of Civil
Procedure." then ten (10) days notice
shall be given by plaintiff to defendants
prior to divulging such material in any
legal proceeding (other than a grand jury
proceeding).

XI. Retention of Jurisdiction

Jurisdiction is retained by this Court
for the purpose of enabling any of the
parties to this Final Judgment to apply to
this Court at any time for such further
orders and directions as may be
necessary or appropritc for the
construction or carrying out of this Final
Judgment, for the modification of any of
the provisions hereof, for the
enforcement of compliance herewith,
and for the punishment of any violations
hereof.

XII. Termination

This Final Judgment will expire on the
fifth anniversary of the date of its entry.

XIII. Public Interest

Entry of this Final Judgement is in the
public interest.

Dated:

United Slates District Judge

Competitive Impact Statement

Pursuant to section 2(b) of the
Antitrust Procedures and Penalties Act
(“APPA"), 15 U.S.C. 16(bHh). the United
States of America files this Competitive
Impact Statement relating to the
proposed Final Judgment submitted for
entry with the consent of Brown & Root.
Inc., Halliburton Company, and Offshore
Pipelines. Inc. in this civil antitrust
proceeding.

I. Nature and Purpose of the Proceeding

On August 17.1990, the United States
filed a Complaint alleging that the
proposed acquisition from Brown A
Root, Inc. (hereafter (“BAR") by
Offshore Pipelines. Inc. (hereafter
"OPI") would violate section 7 of the
Clayton Act (15 U.S.C. 18). The
Complaint alleges that the effect of the
merger may be substantially to lessen
competition in the provision of pipelay-
pipebury barge services in water depths
of approximately 200 to 400 feet, or with
pipe of diameters greater than 12 inches
in the United States Gulf of Mexico
(“intermediate pipelay-pipebury
market"). Both BAR and OPI provide
such services. Pipelay and pipebury
barge services are contracted for by oil
companies to install and bury pipeline in
connection with the offshore
development and production of crude oil
and natural gas in the U.S. Gulf. The
Complaint seeks, among other relief, a
permanent injunction preventing
defendants from, in any manner,
combining their marine construction
businesses.

On August 16,1990. the United States
and defendants filed a Stipulation by
which they consented to the entry of a
proposed Final Judgment designed to
eliminate the anticompetitive effects of
the acquisition. Under the proposed
Final Judgment as explained more fully
below, OPI would be required to sell, by
March 15,1991. certain pipelay and
pipebury vessels. If it should fail to do
so. a trustee appointed by the Court
would be empowered to sell these
vessels.

The United States, BAR and OPI have
agreed that the proposed Final Judgment
may be entered after compliance with
the APPA. Entry of the proposed Final
Judgment will terminate the action,
except that the Court will retain
jurisdiction to construe, modify, and
enforce the Final Judgment, and to
punish violations of the Final Judgment.

II. Events Giving Rise to the Alleged
Violation

On May 4.1990. BAR and OPI entered
into a purchase agreement under which
OPI would purchase from BAR 23 marine
construction vessels, including seven
vessels located in the U.S. Gulf, and
associated assets. This acquisition
would, if unchallenged, effectively
merge all of BAR’S and OPI’s marine
construction business. The purchase
price to be paid by OPI to BAR for the
marine construction business of BAR is
approximately $80 million.

Brown & Root Inc. is an engineering
and construction services company,
headquartered in Houston. Texas. Along

with its other construction businesses.
BAR'S marine unit has owned a marine
construction fleet of 23 major vessels
and has provided marine construction
services in the U.S. Gulf and other
international offshore regions. BAR is a
wholly-owned subsidiary of Halliburton
Company, an oil field services firm,
located in Dallas. Texas. In 1989.
Halliburton had total assets of $853
million and revenues of $2.9 billion. OPI
is headquartered in Houston. Texas. By
January 1990, OPI had assets of $70
million and earned revenues of $104
million in 1989. OPI has provided marine
construction services with its ten-vessel
fleet in the U.S. Gulf.

The Complaint alleges that the
intermediate pipeiay/pipebury market is
a relevant product market for antitrust
purposes. As alleged in the Complaint,
the United States Gulf of Mexico is a
relevant geographic market, within the
meaning of section 7 of the Clayton Act.
Pipelay barges, pipebury barges, and
combination pipeiay/pipebury barges
are specially designed, built or modified,
and equipped to be capable of laying
and/or burying pipeline on the sea
bottom. Vessels vary in their
capabilities to lay or bury certain
diameters of pipe and to do so in certain
water depths depending predominantly
on the size of the vessel. The ability to
lay or bury larger diameter pipe in
deeper water requires a larger vessel,
with greater anchoring capability, and
the capacity to control heavier or longer
pipe. There is no competitive substitute
for pipeiay/pipebury barge services to
which a significant number of customers
would turn in the event of a small
nontransitory price increase. Firms that
provide pipeiay/pipebury barge services
in the U.S. Gulf compete with each other
for bids. Customers generally solicit bids
from the companies they believe are
capable of working at the water depths
and with the pipe diameters required for
the particular project. For almost all
projects at water depths of
approximately 200-400 feet, or w ith pipe
of diameters greater than 12 inches,
currently only four firms compete in the
U.S. Gulf. Two of those four firms are
BAR and OPI

The Complaint alleges that the
intermediate pipeiay/pipebury market is
highly concentrated and would become
substantially more concentrated as a
result of the violation alleged herein.
Based on 1989 sales data, BAR and OPI
have, respectively, about 31 and 27
percent, respectively, of the
intermediate pipeiay/pipebury market in
which onty four firms now compete. The
merger of BAR and OPI would result in
Hn increase in the Herfindahl-

33968

Fcdeial Register / Vol. 55, No. 171 / Tuesday, September 4, 1990 / Notices

I lirschman Index by about 1669 to 4764.
A market with a post-acquisition I fill of
1900 is moderately concentrated, and a
market with a post-acquisition IIIII of
1HOO is highly concentrated.

Entry into the intermediate pipelay/
pipebury market is time-consuming and
costly, and is unlikely to occur in
response to a small but significant
nontransitory price increase. To enter
the market, a firm must obtain a barge of
sufficient size to hold the necessary
equipment and to operate in deeper
waters. Such barges are not currently
evnilable in the U S. Gulf. If the only
available barges are located somewhere
other than the U.S. Gulf, the entrant
must bear the significant cost of
transporting the vessel to the Gulf.
Further, after a barge is obtained, the
entrant will likely have to refurbish the
barge and install the necessary
equipment to lay and bury pipe. Finally,
entrants must find capable personnel to
work on the barges to provide the
services. All of these steps are time-
consuming and costly.

III. Explanation of the Proposed Final
Judgment

The United States brough this action
because the effect of the proposed
acquisition from B&R by OPI may be
substantially to lessen competiton, in
violation of section 7 of the Clayton Act.
in the intermediate pipelay/pipebury
market. The risk to competiton posed by
this transaction, however, substantially
would be eliminated were sufficient
pipelay/pipebury vessels to be sold to a
purchaser that would operate them as
an active, independent and financially
viable competitor in the intermediate
pipelay/pipebury market. To this end,
the provision of the proposed Final
judgment are designed to accomplish
the sale of certain vessels capable of
performing services in the Intermediate
pipelay/pipebury market to such a
purchaser or purchasers and prevent the
anticompetitive effects of the proposed
acquisition.

Section IV. of the proposed Final
Judgmen 4 requires defendant OPI. by
March 15.1991, to divest the BAR-276
combination pipelay/pipebury barge
and the LB-262 combination pipelay/
pipebury barge to a purchaser or
purchasers that has the intent and
capability to compete promptly and
effectively in the provision of pipelay/
pipebury barge services in the U.S. Gulf.

Under the proposed Final Judgment,
defendants must take all reasonable
steps necessary to accomplish quickly
the divestiture of the specified assets,
and shall cooperate with bona fide
prospective purchasers by supplying all
information relevant to the proposed

sale. Should OPI fail to complete its
divestiture by March 15,1991, the Court
will appoint, pursuant to Section V., a
trustee to accomplish the divestiture.

The United States will have the
discretion to delay the appointment of
the trustee for up to an additional three
months should it appear that the assets
can be sold in the extended time period.

Following the trustee’s appointment,
only the trustee will have the right to
sell the divestiture assets, and
defendant OPI will be required to pay
for all of the trustee’s sale-related
expenses.

Section VI. of the proposed Final
Judgment would assure the United
States an opportunity to review any
proposed sale, whether by OPI or by the
trustee, before it occurs. Under this
provision, the United States is entitled
to receive complete information
regarding any proposed sale or any
prospective purchasers prior to
consummation. Upon objection by the
United States to a sale of the divestiture
assets by the defendant OPI, a proposed
divestiture may not be completed.

Should the United States object to a sale
of the divested assets by the trustee,
such sale shall not be consummated
unless approved by the Court.

Under Section IX. of the proposed
Final Judgment, defendant OPI must
take certain steps to ensure that, until
the required divestiture has been
completed, both the BAR-278 and the
IJB-282 will be maintained as distinct
saleable assets. Until such divestiture,
defendant OPI must also preserve and
maintain the divestiture assets as
salable assets, making all reasonable
efforts to maintain the assets in a
rendition which makes them usable as
part of a viable and active business of
providing pipelay/pipebury barge
services.

Pursuant to Section V.. should the
trustee not accomplish the divestiture
within six months of appointment, the
trustee and the parties will make
recommendations to the Court, which
shall enter such orders as it deems
appropriate to carry out the purpose of
the trust, which may include extending
the trust or the term of the trustee’s
appointment or ordering that the
divestiture assets be sold to BftR at a
Court-determined price. Section XII.
provides that the proposed Final
judgment will expire on the fifth
anniversary of its entry by the Court.

IV. Remedies Available to Potential
Private Litigants

Section 4 of the Clayton Act (15 U.S C.
15) provides that any person who has
been injured as a result of conduct
prohibited by the antitrust law's may

bring suit in federal court to recover
three times the damages the person has
suffered, as well as costs and
reasonable attorneys’ fees. Entry of the
proposed Final Judgment will neither
impair nor assist the bringing of any
private antitrust damage action. Under
the provisions of section 5(a) of the
Clayton Act (15 U.S.C. 16(a)), the
proposed Final Judgment has no prinia
facie effect in any subsequent private
lawsuit that may be brought against
defendants.

V. Procedure Available for Modification
of the Proposed Final Judgment

The United Slates and defendants
have stipulated that the proposed Final
Judgment may be entered by the Court
after compliance with the provisions of
the APPA, provided that the United
States has not withdrawn its consent.
The APPA conditions entry upon the
Court’s determination that the proposed
Final Judgment is in the public interest.

The APPA provides a period of at
least 60 days preceding the effective
date of the proposed Final Judgment
within which any person may submit to
the United States written comments
regarding the proposed Final Judgment.
Any person who wishes to comment
should do so within 60 days of the date
of publication of this Competitive
Impact Statement in the Federal
Register. The United States will
evaluate the comments, determine
whether it should withdraw its consent,
and respond to comments. The
comments and the response of the
United States will be filed with the
Court and published in the Federal
Register.

Written comments should be
submitted to: Mark C. Schechter, Chief
Transportation. Energy 8 Agriculture
Section, Antitrust Division, Judiciary
Center Building, 555 4th Street. NW.,
Room 9403. Washington, DC 20C01.

VI. Alternatives to the Proposed Final
Judgment

The proposed Final Judgment requires
that the divestiture assets be sold to a
purchaser or purchasers that would use
them promptly to provide viable
competition in the provision of pipelay/
pipebury barge services in the U.S. Gulf.
Thus, compliance with the proposed
Final Judgment and the completion of
the sale required by the Judgment would
resolve the competitive concerns raised
by the proposed transaction, and assure
that the divestiture assets would be
used as part of a viable and active
competitor to OPI’s provision of
pipelay/pipebury r barge services

Federal Register / Vol. 53, No. 171 / Tuesday. September 4, 1990 / Notices

35969

Litigation is, of course, always an
alternative to a consent decree in a
section 7 case. The United States
rejected this alternative because the
sale required under the proposed Final
Judgment should prevent the acquisition
from B&R by OPI from having a
significant anticompetitive effect in the
relevant market alleged, the
intermediate pipelay/pipebury market.

Of the seven B&R barges currently
operating in the United States Gulf of
Mexico, three compete with OPI
primarily in the intermediate pipelay/ *
pipebury market: the BAR-278
combination pipelay/pipebury barge,
the BAR-289 pipelay barge and the
BAR-356 pipebury barge. The proposed
Final Judgment provides that OPI will
divest the BAR-278, and. instead of the
BAR-289 and BAR-356. OPfs LB-282
combination pipelay/pipebury barge.
The LB-282 competes directly with the
BAR-289 and BAR-356 in the relevant
market. Thus, in the hands of an
appropriate purchaser or purchasers the
divestiture assets will effectively
replace B&R as a competitor in the
intermediate pipelay/pipebury market.

The United States is satisfied that the
proposed Final Judgment fully resolves
the anticompetitive effects of the
proposed merger alleged in the
Complaint. Although the proposed Final
Judgment may not be entered until the
criteria established by the APPA (15
U.S.C. 16(bHh)) have been satisfied, the
public will benefit immediately from the
safeguards in the proposed Final
Judgment because the defendants have
stipulated to comply with the terms of
the Judgment pending its entry by the
Court.

VII. Determinative Materials and
Documents

There are no materials or documents
that the United States considered to be
determinative in formulating this
proposed Final Judgment. Accordingly,
none are being filed with this
Competitive Impact Statement.

Dated: August 17.1990.

Respectfully submitted.

Burney P. Clark.

Anne E. Blair.

Angela L. Hughes.

Jill Ptacek,

Attorneys, US. Department of Justice,
Antitrust Division, Judiciary Center Building.
555 Fourth Street, NW.. Washington. DC
20001. (202) 307-0892.

[FR Doc. 90-20299 Filed 8-31-90: 8:45 am|

BILLING CODE 4410-01-11

NATIONAL ARCHIVES AND RECORDS
ADMINISTRATION

Records Schedules; Availability and
Request for Comments

agency: National Archives and Records
Administration, Office of Records
Administration.

action: Notice of availability of
proposed records schedules: request for
comments.

summary: The National Archives and
Records Administration (NARA)
publishes notice at least once monthly
of certain Federal agency requests for
records disposition authority (records
schedules). Records schedules identify
records of sufficient value to warrant
preservation in the National Archives of
the United States. Schedules also
authorize agencies after a specified
period to dispose of records lacking
administrative, legal, research, or other
value. Notice is published for records
schedules that (1) propose the
destruction of records not previously
authorized for disposal, or (2) reduce the
retention period for records already
authorized for disposal. NARA invites
public comments on such schedules, as
required by 44 USC 3303a(a).

DATES: Requests for copies must be
received in writing on or before October
19,1990. Once the appraisal of the
records is completed. NARA will send a
copy of the schedule. The requester will
be given 30 day3 to submit comments.
addresses: Address requests for single
copies of schedules identified in this
notice to the Records Appraisal and
Disposition Division (NIR). National
Archives and Records Administration,
Washington, DC 20408. Requesters must
cite the control number assigned to each
schedule when requesting a copy. The
control number appears in parentheses
immediately after the name of the
requesting agency.

SUPPLEMENTARY INFORMATION: Each
year U.S. Government agencies create
billions of records on paper, film,
magnetic tape, and other media. In order
to control this accumulation, agency
records managers prepare records
schedules specifying when the agency
no longer needs the records and what
happens to the records after this period.
Some schedules are comprehensive and
cover all the records of an agency or one
of its major subdivisions. These
comprehensive schedules provide for
the eventual transfer to the National
Archives of historically valuable records
and authorize the disposal of all other
records. Most schedules, however, cover
records of only one office or program or

a few series of records, and many are
updates of previously approved
schedules. Such schedules also may
include records that are designed for
permanent retention.

Destruction of records requires the
approval of the Archivist of the United
States. This approval is granted after a
thorough study of the records that takes
into account their administrative use by
the agency or origin, the rights and
interests of the Government and of
private persons directly affected by the
Government’s activities, and historical
or other value.

This public notice identifies the
Federal agencies and their subdivisions
requesting disposition authority,
includes the control number assigned to
each schedule, and briefly describes the
records proposed for disposal. The
records schedule contains additional
information about the records and their
disposition. Further information about
the disposition process will be furnished
to each requester.

Schedules Pending

1. Department of Agriculture, Foreign
Agricultural Service (Nl-166-90-1).
Electronic data on U.S. imports and
exports of agricultural commodities,
extracted from Bureau of Census data.

2. Department of Commerce, Bureau of
Export Administration, Office of Export
Enforcement (Nl-476-90-3).
Chronological files.

3. Department of Commerce, Bureau of
Export Administration, Office of Foreign
Availability (Nl-470-90-4).
Comprehensive records schedule.

4. Department of Commerce, Bureau of
Export Administration. Under Secretary
for Export Administration (Nl-476-90-
8). Comprehensive records schedule.

5. Department of Commerce, Bureau of
Export Administration, Director of
Administration (Nl-476-90-10).
Comprehensive records schedule.

6. Department of Education, Office of
Education, Civil Defense Education
Branch (N1-12-9CM). State financial
reports and housekeeping records, 1959-
71.

7. Department of Education. Office of
Education (Nl-12-90-5). Records
relating to the administration of grants,
1959-79.

8. Federal Labor Relations Authority
(Nl-480-90-1). Regional copies of
certification records.

9. General Services Administration,
Office of Administration (Nl-269-90-3).
Program training records, directives,
case files, and contracting records.

10. Department of Health and Human
Services, Public Health Service, Health
Resources and Services Administration

35970

Federal Register / Vol. 55, No. 171 / Tuesday. September 4, 1990 / Notices

(N1-90-90-11). Reduction in retention
period for records relating to the
administration of grant support for
health care, health professions
education and nurse training facilities.

11. Department of Health and Human
Services. Centers for Disease Control.
National Center for Health Statistics
(N1-442-90-2). International Statistics
Staff Working Papers.

12. United States Information Agency
(Nl-59-90-14). Records of the
Department of State. Bureau of
Educational and Cultural Affairs
transferred to the USICA in 1978.
Routine and faciliative records relating
to the International Book Year.

13. Department of the Interior. U.S.
Geological Survey (Nl-57-89-5). Analog
data from the Exclusive Economic Zone
Mapping Project in paper, film, and
magnetic tape media.

14. Department of justice. Federal
Bureau of Investigation {Nl-65-90-1).
Fingerprint cards and related textual
material generated in connection with
background investigations, arrests, or
incarcerations.

15. Department of justice, Federal
Bureau of investigation (Nl-65-90-3).
Sound recordings made in surveillance
of suspected foreign intelligence agents.

16. Department of Justice, Federal
Bureau of Investigation (Nl-65-90-4).
Office of Planning. Evaluation and
Audits work papers.

17. Panama Canal Commission (Nl-
185-90-11). Personnel and medical
records for Panama Canal cargo and
passenger vessel crew members.

18. Department of State. U.S. Embassy
Bangkok, Refugee Office (Nl-64-90-4).
Affidavits of relationship.

Dated: August 24,1990-
Don W. Wilson.

Archivist of the United Stales.

|FR Doc.90-20694 Filed 8-31-90; 8:45 am]
BILLING CODE 751S-01-4I

NATIONAL SCIENCE FOUNDATION

Permit Applications Received Under
the Antarctic Conservation Act of 1978

agency: National Science Foundation.
action: Notice of permit applications
received under the Antarctic
Conservation Act of 1978, Public Law
95-541.

summary: The National Science
Foundation (NSF) is required to publish
notice of applications received to
conduct activities regulated under the
Antarctic Conservaton Act of 197a NSF
has published regulations under the

Antarctic Conservation Act of 1978 at
title 45 part 670 of the Code of Federal
Regulations. This is the required notice
of permit applications received.

DATES: Interested parties are invited to
submit written data, comments, or views
with respect to these permit applications
by October 5,1990. Permit applications
may be inspected by interested parties
at the Permit Office, address below.

addresses: Comments should be
addressed to Permit Office, Room 627,
Division of Polar Programs, National
Science Foundation, Washington, DC
20550.

FOR FURTHER INFORMATION CONTACT:

Charles £. Myers at the above address
or(202) 357-7934.

SUPPLEMENTARY INFORMATION: The

National Science Foundation, as
directed by the Antarctic Conservation
Act of 1978 (Pub. L. 95-541). has
developed regulations that implement
the “Agreed Measures for the
Conservation of Antarctic Fauna and
Flora” for all United States citizens. The
Agreed Measures, developed by the
Antarctic Treaty Consultative Parties,
recommended establishment of a permit
system for various activities in
Antarctica and designation of certain
animals and certain geographic areas as
requiring special protection. The
regulations establish such a permit
system to designate Specially Protected
Areas and Sites of Special Scientific
Interest.

The applications received are as
follows:

1.90-18 Applicant

Mahlon C. Kennicutt, Texas A&M
University, College Station, Texas
77845.

Activity for Which Permit Requested

Taking. Import into USA. The
applicant is conducting research on the
effects on birds of the fuel spill resulting
from the grounding of the Argentine
vessel Bahia Para iso. He proposes to
salvage dead bird specimens and import
them to the U.S. for hydrocarbon
analysis.

The applicant proposes to enter site of
special scientific interest, Litchfield
Island, to salvage bird specimens.

Location

Antarctic Peninsula in vicinity of
Palmer Station.

Dates

March-April 1991.

2. 90-22 Applicant

john L. Bcngtsen, National Marine
Mammal Laboratory. 7600 Sand Point
Way. NE.. Seattle. WA 98115.

Activity for Which Permit Requested

Taking. Import into USA. Export from
USA. Enter Site of Special Scientific
Interest. The applicant is conducting
research on the feeding ecology,
reproduction, and population dynamics
of Antarctic seals. He requests
permission to deploy time-depth
recorders, radio transmitters, and
satellite-linked electronics of seals of
various species to monitor their
behavior. Permission is requested to
enter Cape Shirreff and Byers Peninsula
on Livingston Island Sites fo Special
Scientific Interest to study seals and
birds.

Permission is also requested to import
specimen material into the U.S. and
export specimens to allow exchange of
material among researchers of various
nations. Specimens to be taken
(capture/release] are as follows:

Crabeater Seal- 100

Leopard Seal- 100

Weddell Seal_U)0

Ross Seal.50

Antarctic Fur Sea!.1000

Southern Elephant Seal-100

Location

Antarctica Peninsula area.

Dotes

November 1990—October 1992.

3.90-23 Applicant

John L. Bengtson, National Marine
Mammal Laboratory, 7600 Sand Point
Way. NE., Seattle, WA 98115

Activity for Which Permit Requested

Taking. Import into USA. The
applicant is conducting studies of food
web dynamics of krill-consuming
species of seabirds, and proposes to use
doubly-labeled water techniques (using
the stable, non-radioactive isotopes of
oxygen-18 and deuterium) to measure
energy requirements of penguins and
other sea birds. Blood samples will be
taken from birds and samples will be
returned to the U.S. for analysis.
Seabirds will be taken by capture end
release for (numbers refer to table
below): (1) banding and/or making. (2)
measuring, weighing, and/or examining.
(3) stomach pumping, (4) attaching/
removing instruments, and (5) injecting
isotopes and/or drawing biood samples.
An unspecified number of seabirds and
seals mey be incidentally disturbed
during research; efforts will be made to
avoid or minimize such disturbance.

Federal Register / Vol. 55. No. 171 / Tuesday, September 4. 1990 / Notices

*5971

Species

Annual

num¬

ber

taKen

Take by

Import
to use

Chinstrap penguin. .

2,500

1,000

Capt/release M l.. 1T - r . T ~.

No.

Chmstrao penguin. .

Capt/release M2 .........

No.

Chinstrap penguin. .

100

Capt/release M3 .........

No-

Chinstrap penguin ...........

150

Capt/release #4........

No.

Chinstrap penguin.

21

Capt/release M 5 .......

Yes

Macaroni penguin. . .........

500

Capt/release M 1_—.......

(blood

sam¬

ples).

No.

Macaroni penguin. .

200

Capt/release M2 ..... . .

No.

Macaroni penguin...

50

Capt/release #3... . ... ......

No.

Maca r oni penguin...........................

50

Capt/release M 4... ...-...

No.

Macaroni penguin.

7

Capt/release M 5...........

Yes

Cape petrel.

200

Capt/release M 1....... ...i...

(blood

sam¬

ples).

No.

Cape petrel..........

100

Capt/release M2 .

No

American Sheathbill.„.....

200

Capt/release M 1...............

No

Location

Antarctica Peninsula area.

Dates

November 1990—October 1992.
Charles E. Myers,

Permit Office.

[FR Doc. 90-20653 Filed 0-31-90; 8:45 ami
BILLING COOE 7555-01-*

Permits Issued Under the Antarctic
Conservation Act of 1978

agency: National Science Foundation.

action: Notice of permits issued under
the Antarctic Conservation Act of 1978,
Public Law 95-541.

summary: The National Science
Foundation (NSF) is required to publish
notice of permits issued under the
Antarctic Conservation Act of 1978. This
is the required notice of permits issued.

FOR FURTHER INFORMATION CONTACT:

Charles E. Myers, Permit Office,

Division of Polar Programs. National
Science Foundation, Washington, DC
20550.

SUPPLEMENTARY INFORMATION: On July
23,1990, the National Science
Foundation published a notice in the
Federal Register of permit applications
received. Permits were issued to the
following individuals on August 27,1990:

Gary D. Miller, and Diana Freckman.

The permit application from Gary
Miller proposed work with Adelie
penguins, but this work is not part of an
approved research project. For this
reason, that part of his permit
application request which relates to
delie penguins was not approved.

Permission was granted only for work
with South Polar skuas.

Charles E. Myers,

Permit Office. Division of Polar Programs.
[FR Doc. 90-20636 Filed 8-31-90; 8:45 am]
BILLING COOE 755S-01-M

NUCLEAR REGULATORY
COMMISSION

[Docket Nos. 50-325 and 50-3241

Carolina Power & Light Co.;
Consideration of Issuance of
Amendment to Facility Operating
License and Proposed No Significant
Hazards Consideration Determination
and Opportunity for Hearing

The U.S. Nuclear Regulatory
Commission (the Commission) is
considering issuance of an amendment
to Facility Operating License Nos. DPR-
71 and DPR-62 issued to Carolina Power
& Light Company (CP&L or the licensee)
for operation of Brunswick Steam
Electric Plant. Units 1 and 2, located in
Brunswick County, North Carolina.

The proposed change adds a footnote
to Action Requirement 3.8.1.1.a that
allows the flexibility required to perform
extended maintenance on an offsite
circuit. Additional changes to Technical
Specifications (TS) 3.8.1.1 and 3.8.1.2 are
also being made to clarify the existing
AC source operability requirements.
Currently. Technical Specification 3/
4.8.1 implies that two offsite power
sources are required for a unit in
Operational Condition 4 or 5 if the other
unit is in Operational Condition 1, 2, or 3
and provides an allowable out of service
time of 72 hours if one of the sources is
inoperable. In the past, Carolina Power
& Light Company (CP&L) interpreted the
two offsite power sources to be the

transmission lines coming into the
switchyard and. as such, experienced no
problems in meeting the requirements of
the TS. During their recent inspection,
the Diagnostic Evaluation Team took the
position that CP&L’s understanding was
incomplete and that the offsite power
sources include the unit auxiliary
transformer (UAT) and the startup
auxiliary transformer (SAT). This
interpretation would result in the need
for a dual unit outage to perform
maintenance on either the UAT or the
SAT if that maintenance will require
more than 72 hours to complete.
Therefore, the proposed amendment
adds a footnote to the Action
Requirements of Technical Specification
3.8.1.1.a to require shutdown of an
operating unit should the outage time for
one offsite circuit for a shutdown unit
exceed 45 days. In addition, changes are
proposed to TS 3.8.I.I. and 3.8.1.2 to
clarify existing AC power source
operability requirements.

Before issuance of the proposed
license amendment, the Commission
will have made findings required by the
Atomic Energy Act of 1954, as amended
(the Act) and the Commission's
regulations.

The Commission has made a proposed
determination that the request for
amendment involves no significant
hazards consideration. Under the
Commission s regulations in 10 CFR
50.92, this means that operation of the
facility in accordance with the proposed
amendment would not (1) Involve a
significant increase in the probability or
consequences of an accident previously
evaluated; or (2) create the possibility of
a new or different kind of accident from
any accident previously evaluated; or (3)
involve a significant reduction in a
margin of safety.

35972

Federal Register / Vol. 55. No. 171 / Tuesday, September 4, 1990 / Notices

The licensee has provided the following
analysis:

1. The proposed amendment does not
involve a significant increase in the
probability or consequences of an accident
previously evaluated. There is no physical
modification to the plant or change to the
method in which any safety related
equipment performs its intended function as
a result of the proposed amendment. The
proposed change adds a footnote to action
requirements of Technical Specification
3.8.1.1.a which allows one offsite power
source, on the other unit* to be removed from
service for up to 45 days provided that unit is
in Operational Conditions 4 or 5. For
example, during the upcoming Brunswick !
refueling outage, the Bruns wick-1 SAT and
UAT can individually be removed from
service for up to 45 days without requiring
Brunswick-2 to shutdown (SIC). The
Company expects to need this flexibility in
order to perform transformer maintenance,
inspections, and bus duct inspections. The
operability of the two offsite circuits on the
operating unit is not affected by these
activities. The work planned for the
upcoming Brunswick-1 outage is expected to
take approximately 45 days for the UAT and
33 days for the SAT to complete. Therefore.
CP&L requests that the Action Requirements
of Technical Specification 3.8.1 .a be extended
to 45 days from the date the transformer is
removed from service. In addition, the
footnote states that during this 45 day period,
action Requirements 3.&.1.1.&.1, 3.8.1.l.a.2.
and 3.8.1.1.a.3 are not applicable. If the offsite
circuit of the shutdown unit is not operable at
the end of the 45 day period the Action
Requirements of Technical Specification
3.8.1.1.1 .a will be initiated and the operating
unit will be placed in Hot Shutdown within
12 hours and in Cold Shutdown within the
following 24 hours.

For operation to continue on the operating
unit while one of the shutdown unit’s offsite
power sources is out of service, the existing
Technical Specifications require all four
diesel generators and the remaining offsite
power sources to be operable. Action
Requirement 3.8.1.1.C or 3.8.1.1.d wilt be
applicable to the operating unit upon loss of a
diesel generator or loss of an additional
offsite circuit The existing Technical
Specifications provide adequate assurance of
the availability of AC power to the Operating
unit.

As stated above, part of the offsite power
source maintenance planned for the
upcoming Brunswick-l Reload 7 outage is not
routine. The scope of future maintenance and
inspection activities will be based, in part, on
the results of the upcoming Brunswick-1
activities. Currently, the Unit Auxiliary
Transformer (UAT) and Startup Auxiliary
Transformer (SAT) are scheduled to be
removed from service for approximately 45
days and 33 days, respectively. The
likelihood of losing an additional AC power
source during this time is low. Should such a
loss occur, each of the Brunswick Units is
designed to withstand a loss of offsite power
as described in Section 15.2.5. of the
Brunswick Updated FSAR. Also, Action
Requirements 3.8.I.I.C. and 3.8.1.1.d. assure
that the operating unR will be placed in a
safe condition.

The proposed amendment also clarifies
Technical Specifications 3.8.1.1 and 3.01.2
with respect the AC power source operability
requirements. Currently* the heading for
Technical Specification 3.8.1.1 states:
"Operation of one or both Unii9." As
interpreted, Technical Specification 3.8.t.l
requires all four diesels and two offsite
circuits per unit to be operable if either unit is
in Operational Conditions (S/C) 1. 2, or 3.

The proposed amendment revises the
heading to state: "OPERATING” and inserts
the words "per unit" into Technical
Specification 3.8.1.1.a, which will now state
'Two physically independent circuits, per
unit, between the offsite transmission
network and the onsite Class IE distribution
system" The required number of AC power
sources is not affected, this change revises
the Technical Specification to explicitly state
the existing requirements as interpreted.

Similarly, the heading for Technical
Specification 3.8.1.2 currently states:
"Shutdown of Both Units." The proposed
amendment revises the heading to read:
"Shutdown" and clarifies Technical
Specification 3.8.1.2.b to assure that there
shall be at least one operable diesel
generator assigned to the shutdown unit
(diesel generator 1 or 2 for Unit 1 and diesel
generator 3 or 4 for Unit 2). As with Technical
Specification 3.8.1.1, the proposed change to
the heading does not affect the number of AC
sources required to be operable, they merely
state these requirements more expfiritly.

The above changes also ensure that
appropriate actions are taken for a shutdown
unit. While Technical Specification 3.8.1.1 is
currently interpreted to be applicable when
one unit is operating and the other unit Is
shutdown, the specified actions are not
meaningful to a shutdown unit because they
provide no compensatory measures. The
actions specified in Technical Specification
3.8.1.2 are appropriate compensatory
measures for a unit in Operational Conditions
|SIC] 4 or 5; however, that technical
specification iB currently applicable only
when both units are shutdown. This change
ensures the appropriate compensatory
measures are taken for a unit in Operational
Conditions (S/C) 4 or 5 regardless of the
status of the other unit.

The final change made in the proposed
amendment adds the word “Operational" in
the Applicability of Technical Specification
3 8.1.2 and is purely administrative in nature.
The change enhances consistency with the
Technical Specifications.

Carolina Power A Light Company is aware
of the recent loss of offsite power event at
Georgia Power Company’s Vogtlc Plant and
has established a procedure for control of
switchyard activity. The Company believes
that the existing Technical Specifications and
the additional actions provide adequate
assurance of the availability of AC power
and, as such, the proposed amendment does
not involve a significant increase in the
probability or consequences of an accident
previously evaluated.

2. The proposed amendment does not
create the possibility of a new or different
kind of accident from any accident previously
evaluated. As stated above, this change does
not result in a physical modification to the

plant or change to the method in which any
safety related equipment performs its
intended function. The proposed changes to
the headings for Technical Specifications
3.8.1.1 and 3.8.1.2 and the clarifications to
Technical Specifications 3.8.1.1.a and 3.8.1.2.b
improve the operability requirements for AC
power sources stated in these specifications
by more explicitly stating the requirements.
The revised technical specifications continue
to provide the necessary power sources both
during operation and while shutdown to
ensure safe operation of the Brunswick
facility. Therefore, the proposed amendment
can not create the possibility of a new or
different kind of accident from any accident
previously evaluated.

3. The proposed amendment does not
involved a significant reduction in the margin
of safety. This change will provide adequate
time to perform necessary transformer
maintenance, Inspections, and bus duct
inspection, thereby increasing the overall
reliability of the offsite power sources. The
existing Technical Specifications and
proposed additional actions are adequate to
assure the availability of AC power to both
units at all times. In addition, the clarification
of Technical Specifications 3.8.1.1-a and
3.8.1.2.b explicitly state the operability
requirements for the AC power sources and
help to avoid possible operator confusion.
Based on this reasoning, the proposed
amendment does not involve a significant
reduction in the margin of safety.

The NRC staff has reviewed the
licensee's no significant hazards
consideration determination and agrees
with the licensee's analysis.

Therefore, based on the above
considerations, the staff proposes to
determine that the application for
amendment involves no si^iificant
hazards consideration.

The Commission is seeking public
comments on this proposed
determination. Any comments received
within 30 days after the date of
publication of this notice will be
considered in making any final
determination. The Commission will not
normally make a final determination
unless it receives a request for a
hearing.

Written comments may be submitted
by mail to the regulatory Publications
Branch, Division of Freedom of
Information and Publications Services,
Office of Administration, U.S. Nudear
Regulatory Commission. Washington.

DC 20555, and should dte the
publication date and page number of
this Federal Register notice. Written
comments may also be delivered to
Room P-223, Phillips Building, 7920
Norfolk Avenue, Bethesda, Maryland
from 7:30 a.m. to 4:15 p.m. Copies of
written comments received may be
examined at the NRC Public Document
Room, the Gelman Building, 2120 L
Street, NW„ Washington, DC. The filing

35973

Federal Register / Vol. 55, No. 171 / Tuesday, September 4, 1990 / Notices

of requests for hearing and petitions for
leave to intervene is discussed below.

By October 4,1990. the licensee may
file a request for a hearing with respect
to issuance of the amendment to the
subject facility operating license and
any person whose interest may be
affected by this proceeding and who
wishes to participate as a party in the
proceeding must file a written petition
for leave to intervene. Request for a
hearing and petitions for leave to
intervene shall be filed in accordance
with the Commission's “Rules of
Practice for Domestic Licensing
Proceedings" in 10 CFR part 2.

Interested persons should consult a
current copy of 10 CFR 2.714 which is
available at the Commission's Public
Document Room, the Celman Building,
2120 L Street. NW„ Washington, DC
20555 and at the Local Public Document
Room located at the University of North
Carolina at Wilmington. William
Madison Randall Library, 601 S. College
Road, Wilmington, North Carolina
28403-3297. If a request for a hearing or
petition for leave to intervene is filed by
the above date, the commission or an
Atomic Safety and Licensing Board and
Licensing Board Panel will rule on the
request and/or petition and the
Secretary or the designated Atomic
Safety and Licensing board will issue a
notice of hearing or an appropriate
order.

As required by 10 CFR 2.714, a
petition for leave to intervene shall set
forth with particularity the interest of
the petitioner in the proceeding, and
how that interest may be affected by the
results of the proceeding. The petition
should specifically explain the reasons
why intervention should be permitted
with particular reference to the
following factors: (1) The nature of the
petitioner’s right under the Act to be
made party to the proceeding; (2) the
nature and extent of the petitioner's
property, financial, or other interest in
the proceeding; and (3) the possible
effect of any order which may be
entered in the proceeding on the
petitioner’s interest the petition should
also identify the specific a3pect(s) of the
subject matter of the proceeding as to
which petitioner wishes to intervene.
Any person who has filed a petition for
leave to intervene or who has been
admitted as a party may amend the
petition without requesting leave of the
Board up to fifteen (15) days prior to the
first prehearing conference scheduled in
the proceeding, but such an amended
petition must satisfy the specificity
requirements described above.

Not later than fifteen (15) days prior to
the first prehearing conference schedule

in the proceeding, a petitioner shall file
a supplement to the petition to intervene
which must include a list of the
contentions which are sought to be
litigated in the matter. Each contention
must consist of a specific statement of
the issue of law or fact to be raised or
controverted. In addition, the petitioner
shall provide a brief explanation of the
bases of the contention and a concise
statement of the alleged facts or expert
opinion which support the contention at
the hearing, the petitioner must also
provide references to those specific
sources and documents of which the
petitioner is aware and on which the
petitioner intends to reply to establish
those facts or expert opinion. Petitioner
must provide sufficient information to
show that a genuine dispute exists with
the applicant on a material issue of law
or fact. Contentions shall be limited to
matters within the scope of the
amendment under consideration. The
contention must be one which, if proven,
w ould entitle the petitioner to relief. A
petitioner who fails to file such a
supplement which satisfies these
requirements with respect to at least one
contention will not be permitted to
participate as a party.

Those permitted to intervene become
parties to the proceeding, subject to any
limitations in the order granting leave to
intervene, and have the opportunity to
participate fully in the conduct of the
hearing, including the opportunity to
present evidence and cross-examine
witnesses.

If a hearing is requested, the
Commission will make a final
determination on the issue of no
significant hazards consideration. The
final determination will serve to decide
when the hearing is held.

If the final determination is that the
request for amendment involves no
significant hazards consideration, the
Commission may issue the amendment
and make it effective, notwithstanding
the request for a hearing. Any hearing
held would take place after issuance of
the amendment.

If a final determination is that the
amendment involves a significant
hazards consideration, any hearing held
would take place before the issuance of
any amendment.

Normally, the Commission will not
issue the amendment until the
expiration of the 30-day notice period.
However, should circumstances change
during the notice period such that failure
to act in a timely way would result, for
example, in derating or shutdown of the
facility, the Commission may issue the
license amendment before the
expiration of the 30-day notice period,

provided that its final determination is
that the amendment involves no
significant hazards consideration. The
final determination will consider all
public and State comments received.
Should the Commission take this action,
it will publish a notice of issuance and
provide for opportunity for a hearing
after issuance. The Commission expects
that the need to take this action will
occur very infrequently.

A request for a hearing or a petition
for leave to intervene must be filed with
the Secretary of the Commission, U.S.
Nuclear Regulatory Commission,
Washington, DC 20555. Attention:
Docketing and Services, Branch, or may
be delivered to the Commission's Public
Document Room, the Gelraan Building.
2120 L Street, NW., Washington, DC. by
the above date. Where petitions are
filed during the last ten (10) days of the
notice period, it is requrested that the
petitioner promptly so inform the
Commission by a toll-free telephone call
to Western Union at l-{800) 325-6900 (in
Missouri l-{800) 342-6700). The Western
Union operator should be given
Datagram Identification Number 3737
and the following message addressed to
Elinor G. Adensam: (petitioner’s name
and telephone number), (date petition
was mailed), (plant name), and
(publication date and page number of
this Federal Register notice). A copy of
the petition should also be sent to the
Office of the General Counsel U.S,
Nuclear Regulatory Commission,
Washington. DC 20555, and to R.E.

Jones, General Counsel, Carolina Power
& Light Company, P.O. Box 1551,

Raleigh, North Carolina 27602. attorney
for the licensee.

Nontimely filings of petitions for leave
to intervene, amended petitions,
supplemental petitioners and/or
requests for hearing will not be
entertained absent a determination by
the Commission, the presiding officer or
the Atomic Safety and Licensing Board
that the petition and/or request should
be granted based upon a balancing of
the factors specified in 10 CFR
2.714(a)(l)(iHv) and 2.714(d).

For further details with respect to this
action, see the application for
amendment dated July 9,1990, as
supplemented August 16 and August 21,
1990, which is available for public
inspection at the Commission's Public
Document Room, the gelman Building.
2120 L Street, NW., Washington, DC
20555 and at the Local Public Document
Room located at University of North
Carolina at Wilmington, William
Madison Randall Library, 601 S. College
Road, Wilmington, North Carolina
28403-3297.

35974

Federal Register / Vol. 55, No. 171 / Tuesday, September 4, 1990 / Notices

Dated at Rockville. Maryland, this 29th day
of August 1990.

For the Nuclear Regulatory Commission.
Elinor G. Adensam.

Director, Project Directorate 11-1, Division of
Reactor Projects—l/ll, Office of Nuclear
Reactor Regulation.

[FR Doc. 90-20802 Filed 8-31-90; 8:45 am)

BILLING CODE 7S90-01-M

[Docket Nos. 50-352, 50-353)

Philadelphia Electric Co. (Limerick
Generating Station, Units 1 and 2);
Exemption

I.

Philadelphia Electric Company (PECo,
the licensee) is the holder of Facility
Operating License Nos. NPF-39 and
NPF-65 which authorize operation of the
Limerick Generating Station, Units 1 and
2 at steady-state reactor power levels
not in excess of 3293 magawatts thermal
per unit. These licenses provide, among
other things, that the licensee is subject
to all rules, regulations, and Orders of
the Nuclear Regulatory Commission (the
Commission or NRC) now or hereafter
in effect.

The Limerick facility consists of two
boiling water reactors located at the
licensee’s site in Montgomery and
Chester Counties, Pennsylvania. The
licensee is also the holder of Facility
Operating License Nos. DPR-^14 and
DPR-56 which authorize operation of the
Peach Bottom Atomic Power Station.
Units 2 and 3, in Delta. Pannsylvania.

II.

Section 50.54(q) of 10 CFR part 50
requires a licensee authorized to operate
a nuclear power reactor to follow and
maintain in effect emergency plans that
meet the standards of 10 CFR 50.47(b)
and the requirements of Appendix E to
10 CFR part 50. Section IV.F.3 of
Appendix E requires that each licensee
at each site shall exercise with offset
authorities such that the State and local
govenment emergency plans for each
operating reactor site are exercised
biennially, with full or partial
participation by State and local
governments, within the plume exposure
pathway emergency planning zone
(EPZ).

The NRC may grant exemptions from
the requirements of the regulations
which, pursuant to 10 CFR 50.12(a), are
(1) Authorized by law, will not present
an undue risk to the public health and
safety, and are consistent with the
common defense and security; and (2)
present special circumstances. Section
50.12(a)(2)(v) of 10 CFR part 50 indicates
that special circumstances exist when

an exemption would provide only
temporary relief from the applicable
regulation and the licensee has made
good faith efforts to comply with the
regulation.

III.

By letter dated May 16,1990, the
licensee requested an exemption from
the schedular requirements of Section

IV. F.3 of Appendix E to perform a
biennial full participation emergency
preparedness exercise for the Limerick
Generating Station during 1990.
Additional information concerning the
exemption request was provided by the
licensee in a letter dated July 24,1990.
The last biennial emergency
preparedness exercise at the Limerick
Generating Station was a full
participation exercise conducted on
April 5,1988. The next biennial exercise
is currently scheduled for the week of
September 17,1990.

The required biennial full
participation exercises are currently
conducted for both the Limerick
Generating Station and the Peach
Bottom Atomic Power Station on an
even-year cycle. The licensee states that
this practice of conducting both the
Limerick and Peach Bottom full
participation exercises during the same
year has caused logistical and resource
utilization difficulties for PECo. The
licensee, therefor, has requested that the
upcoming Limerick exercise be
rescheduled to a time in early 1991
convenient to all affected parties. The
licensee states that this change would
alleviate the problems associated with
conducting both the Limerick and Peach
Bottom biennial full participation
exercises during the same year, thereby
enabling PECo to better allocate
resources and address the various onsite
and offsite non-exercise emergency
preparedness issues that may arise for
either facility.

The licensee states that the proposed
schedule changes have been discussed
with the Pennsylvania Emergency
Management Agency (PEMA), the three
EPZ counties (Berks, Chester and
Montgomery), and the two support
counties (Bucks and Lehigh). Based on
these discussions, the licensee states
that these government agencies have not
objected to rescheduling the full
participation emergency exercise to
1991. The licensee’s submittal included
letters from PEMA and Bucks,
Montgomery, and Berks Counties
documenting their concurrence.
Concurrence letters have not been
received from Chester or Lehigh
counties, however, the licensee states
that verbal concurrence to reschedule
the emergency execise has been

received from those counties. In a letter
to the licensee dated April 18,1990,
Joseph L. LaFleur, Director, PEMA,
stated that # * I concur that the
current * * * schedule whereby
Philadelphia Electric Company must
conduct the required biennial exercise
for both Limerick and Peach Bottom in
the same year is indeed neither
desirable nor in the best interest of all
concerned.” The Federal Emergency
Management Agency (FEMA) has also
indicated its agreement with the
proposed change in a letter to the Staff
dated July 30,1990.

The licensee informed the NRC staff
in a letter dated July 24,1990, that, if the
exemption is approved, the Limerick full
participation exercise will be conducted
in February 1991, taking into
consideration the scheduling
commitments of FEMA, the State, and
local agencies. The requested exemption
would thus postpone the limerick full
participation exercise for a period of
approximately five months from its
currently scheduled date of the week of
September 17,1990. All future biennial
exercises for Limerick would be
conducted on a schedule based on the
date the rescheduled exercise is
performed. No other emergency
preparedness activities would be
affected by this change.

PECo has been conducting exercises
at Limerick with full or partial offsite
participation since 1984. The last full
participation exercise for the Limerick
facility was performed on April 5,1988.
In its exercise report dated May 19,1988,
FEMA identified one deficiency in the
overall response capability of Lower
Pottsgrove Township. A remedial
exercise was conducted on June 14,

1989, which corrected the deficiency.
FEMA concluded in a report issued July
31,1989, that, "(bjased on the results of
the April 5,1988, full participation
exercise and the June 14,1989, remedial
exercise, the offsite radiological
emergency preparedness for Limerick
Generating Station is adequate to
provide reasonable assurance that
appropriate measures can be taken to
protect the health and safety of the
public in the event of an accident.”

The Commonwealth of Pennsylvania
is an active participant in emergency
preparedness exercises with all of the
nuclear power plants located within the
State. In addition to Limerick,
Pennsylvania has participated in full
and partial participation exercises with
Peach Bottom, Three Mile Island, Beaver
Valley, and Susquehanna. In 1990,
Pennsylvania has fully participated in
exercises at Peach Bottom (on February
7,1990) and Beaver Valley (on May 1,

Federal Register / Vol. 55, No. 171 / Tuesday. September 4. 1990 / Notices 35973

1990). In addition, one of the Limerick
EPZ counties (Chester) participated in
the 1990 Peach Bottom exercise.

The last annual onsite emergency
preparedness exercise at Limerick was
conducted on November 21.1989. In
Inspection Report Nos. 50-352/89-20
and 89-29, the NRC concluded that the
licensee's response actions for the
exercise were adequate to provide
protective measures for the health and
safety of the public. The Commonwealth
of Pennsylvania participated on a
limited basis in the exercise.

The licensee states that if the
exemption is approved, the licensee
plans to conduct a limited partial
participation exercise in conjunction
with its scheduled annual onsite
exercise during September or November
1990. The State and local governments
will be able to participate in the
exercise if they so desire for training
purposes. Further. PECo states that they
intend to continue to provide training to
the appropriate State and local
government agencies to ensure that the
current high level of preparedness is
maintained.

IV.

Based on a consideration of the facts
presented in Section III above, the NRC
staff finds that the following factors
support the granting of the requested
exemption:

a. The capability of the
Commonwealth of Pennsylvania and
local government agencies to respond to
an emergency at Limerick has been
adequately demonstrated in previous
exercises at Limerick. FEMA has found
that there is reasonable assurance that
appropriate measures can be taken to
protect the health and safety of the
public in the event of a radiological
accident at Limerick.

b. The Commonwealth of
Pennsylvania maintains a high level of
preparedness through its participation in
exercises with each of the nuclear
power plants located in the State which,
for 1990, will include two full
participation exercises.

c. The licensee has maintained an
acceptable level of onsite emergency
preparedness and will conduct an onsite
exercise in September 1990. The State
and local governments will have the
opportunity to participate in this
exercise at their option.

d. The requested change will allow
the licensee to better allocate its
resources between the Limerick and
Peach Bottom facilities, thereby
improving its overall emergency
preparedness capability.

e. FEMA. State and local agencies
have indicated their agreement with the
proposed exercise schedule change.

The requested exemption is a
temporary one which will result in
postponing the biennial full participation
exercise for approximately five months.
The exemption will relieve the licensee,
and the Commonwealth of
Pennsylvania, of the burden of
conducting both the Limerick and Peach
Bottom biennial full participation
exercises during the same calendar year,
thereby resulting in a more efficient
allocation of resources. The licensee has
made a good faith effort to comply with
the regulations by conducting the
required full participation exercises at
Limerick with State and local
government agencies since 1984. The
licensee has taken into consideration
the various concerns of FEMA PEMA
and the local governments in
rescheduling the Limerick exercise. All
affected parties support the proposed
exercise schedule change.

V.

For these reasons the Commission has
determined that, pursuant to 10 CFR
50.12(a)(2), the Exemption requested by
the licensee’s letter of May 18,1990, as
supplemented July 24.1990, is authorized
by law, will not present an undue risk to
the public health and safety, and is
consistent with the common defense and
security.

Accordingly, the Commission hereby
approves the following Exemption:

The Limerick Generating Station is exempt
from the requirements of 10 CFR part 50,
appendix E. section IV.F.3, for the conduct of
a biennial offsite full participation emergency
preparedness exercise in 1990. provided that
such an exercise be conducted prior to July 1,
1991.

Pursuant to 10 CFR 51.32, the
Commission has determined that the
granting of this Exemption will have no
significant effect on the quality of the
human environment (55 FR 34633). A
copy of the licensee’s request for
Exemption dated May 16,1990, as
supplemented July 24,1990, is available
for public inspection at the
Commission's Public Document Room,
in the Gelman Building, Lower Level,
2120 L Street NW., Washington, DC, and
at the Limerick Local Public Document
Room located at Pottstown Public
Library, 500 High Street, Pottstown. PA
19464.

Copies may be obtained upon written
request to the U.S. Nuclear Regulatory
Commission, Washington, DC 20555,
Attention: Director, Division of Reactor
Projects-I/II.

This exemption is effective upon
issuance.

Dated At Rockville. Maryland this 27lh day
of August 1990.

For the Nuclear Regulatory Commission.
Steven A Varga,

Director, Division of Reactor Projects — l/ll.
Office of Nuclear Reactor Regulation,

[FR Doc. 90-20709 Filed 8-31-90; 8:45 am)

BILLING COOE 7590-01-M

NUCLEAR WASTE TECHNICAL
REVIEW BOARD

Meeting

action: Notice of meeting.

summary: Pursuant to its authority
under section 5051 of Public Law 100-
203, the Nuclear Waste Policy
Amendments Act of 1987 (NWPAA), the
Transportation A Systems Panel of the
Nuclear Waste Technical Review Board
(the Board) will hold a public hearing to
obtain the views of the public on
transportation issues under study by the
Board as part of its review of the
Department of Energy’s (DOE) program
to site and develop a permanent
repository for the disposal of spent
nuclear fuel and high-level radioactive
waste.

The Transportation A Systems Panel
held its first hearing (under the auspices
of its former title "Transportation
Panel") on August 17,1990. in Amargosa
Valley (Nye County). Nevada. A second
hearing is scheduled to be held on
November 19.1990, in Reno, Nevada.
This notice announces the date and
location of the second hearing, provides
procedures for participating in the
hearing, and lists some of the issues that
participants may want to address in
their remarks before the panel.

Members of the public are welcome to
make their views known by (1)

Preparing written testimony in advance
of the hearing and presenting it before
the panel, or (2) speaking briefly on a
walk-in basis before the panel, or (3)
submitting a written statement for the
record. Those requesting to speak before
panel members should be prepared to
answer questions. A transcript of the
hearing will be made.

Requests to testify should be made in
writing to Ms. Paula N. Alford, Director,
External Affairs, Nuclear Waste
Technical Review Board, 1100 Wilson
Boulevard, suite 910, Arlington. Virginia
22209: (703) 235-4473. Requests to testify
must be received no later than close of
business October 24,1990.

Requests to speak briefly before the
panel on a walk-in basis will be taken
on the day of the hearing. Persons
wanting to make a brief statement

33976

Federal Register / Vol. 55, No. 171 / Tuesday, September 4, 1990 / Notices

before the panel are asked to appear at
the Peppermill Hotel in Reno. Nevada,
on the day of the hearing to sign up for a
five-minute time slot on a first-come,
first-served basis.

In lieu of appearing before the panel,
interested persons may also submit
written comments until November 30,
1990. Original statements should be
submitted to Chair, Transportation &
Systems Panel, Nuclear Waste
Technical Review Board, 1100 Wilson
Boulevard, suite 910, Arlington, Virginia
22209.

dates: The date and time of the hearing
are: Monday, November 19,1990, from 9
a.m.-5 p.m.

addresses: The hearing will be held at
the Peppermill Hotel, 2707 South
Virginia Street, Reno, Nevada 89502;
(702) 826-2121.

FOR FURTHER INFORMATION CONTACT:

Ms. Paula N. Alford, Director, External
Affairs, Nuclear Waste Technical
Review Board, 1100 Wilson Boulevard,
suite 910, Arlington, Virginia 22209; (703)
235—4473.

SUPPLEMENTARY INFORMATION:

Purpose

The Nuclear Waste Technical Review
Board (NWTRB) was established by the
Nuclear Waste Policy Amendments Act
of 1987 (Pub. L 100-203) to evaluate the
scientific and technical validity of
activities undertaken by the Department
of Energy in its civilian nuclear waste
disposal program. The waste to be
disposed of consists primarily of
commercial spent fuel with some
defense high-level waste. While the
Board’s charge is broad, the Act
specifically directs the Board to
evaluate activities relating to repository
siting and the packaging and
transportation of high-level radioactive
waste or spent nuclear fuel.

To facilitate the evaluation of
transportation issues pertaining to spent
nuclear fuel and high-level radioactive
waste, the Board created the
Transportation & Systems Panel
(formerly known as the Transportation
Panel). As part of its study of safety
issues related to nuclear waste
transportation, the panel intends to hold
several public hearings over the next
two years in various locations around
the country. The purpose of the hearings
will be to obtain the views and concerns
of persons who would be affected by the
transportation of spent fuel or high-level
waste once a waste disposal program is
in operation.

To maximize public participation,
hearing locations are being selected in
regions that may see significant waste

transport activity once the disposal
program becomes operational. In the
PWPAA of 1987, the U.S. Congress
directed the DOE to characterize Yucca
Mountain, Nevada, as a potential
repository for the permanent disposal of
spent nuclear fuel and high-level
radioactive waste. Although the
proposed geologic repository under
study is located in the West, the
majority of the nation's spent nuclear
fuel is stored at commercial reactors
located in the East. Therefore, if the
Yucca Mountain Site were found to be
suitable for repository development, a
majority of the nation's spent fuel would
be transported from the East to the
West.

In recognition of the potential increase
in transportation of spent nuclear fuel
through Nevada that would occur if the
Yucca Mountain Site were found to be
suitable as a permanent repository, the
Transportation & Systems Panel is
holding its first two hearings there.
Future hearings will be held in other
locations around the country through
which significant amounts of spent
nuclear fuel are likely to be shipped.

Presentation Procedures

Requests to testify should be made in
writing to Ms. Paula N. Alford, Director,
External Affairs, NWTRB, 1100 Wilson
Boulevard, suite 910, Arlington, Virginia
22209. The written request should
specify the following:

1. Name of the person testifying

2. Title, if any

3. Name of organization, if any

4. Telephone number

5. Length of time requested for presentation

(time limit will be determined once all

requests have been received)

If the contact person is different from
the person testifying, please provide his
or her name, title (if any), organization
name (if any), and telephone number.
Requests to testify must be received no
later than October 24,1990.

Persons testifying are asked to
provide 10 copies of their testimony and
any accompanying slides or other
documentation by ciose of business on
November 9,1990, to the NWTRB, 1100
Wilson Boulevard, suite 910, Arlington,
Virginia 22209. Persons testifying also
are asked to bring 50 copies to the
hearing.

The Transportation & Systems Panel
will reserve time in addition to the
scheduled presentations to hear the
views of interested persons scheduled
on a first-come, first-served basis.
Presenters in this part of the hearing do
not need to notify the panel in advance
of their plans to attend, but they will be

required to sign up the day of the
hearing at the Peppermill Hotel, 2707
South Virginia Street, Reno, Nevada
89502; (702) 826-2121.

To accommodate those wishing to
make presentations, and to allow for
questions from panel members, a time
limit will be placed on scheduled and
walk-in presentations. The amount of
time permitted for each presentation
will depend on the number of requests
the panel receives. Those testifying will
be notified of time constraints following
receipt of their written requests. Walk-in
presenters will be advised of their time
constraints when they sign up. All
participants should be prepared to
answer questions from the panel. A
transcript of the hearing will be made.

Issues

To date, panel members and other
members of the Board have met with
representatives of the Department of
Energy (DOE) and the Nuclear
Regulatory Commission (NRC) to
discuss safety and risk assessment
issues associated with the
transportation of spent nuclear fuel and
high-level radioactive waste. In its First
Report to the U.S. Congress and the U.S.
Secretary of Energy, the Board made a
number of recommendations to the DOE
on the following transportation issues:
System safety, human factors
engineering, and risk assessment and
management. These issues were
selected in part because of their
importance in the early stages of
transportation system planning.
Consequently, the Transportation &
Systems Panel encourages comments
from parties particularly interested in
the following areas.

• System Safety is a management
approach that involves applying safety
engineering and management techniques
to the design of transportation system
hardware, software, and operations: The
central question is, in what ways and to
what extent should the DOE dedicate its
management resources to such
transportation safety activities?

• Human Factors Engineering
involves applying what we know about
human psychological, physiological, and
physical limitations to the design and
operation of industrial systems to
optimize system safety and operability:
The central question is, how can human
error be reduced in the design,
fabrication, maintenance, and operation
of a transport system?

• Risk Assessment and Management
involves the development and use of
analytical methods to estimate the
probability and severity of safety

Federal Register / Vol. 55, No. 171 / Tuesday, September 4, 1990 / Notices

35977

hazards that may be encountered in
spent fuel transportation and to
methodically foresee and develop
measures to prevent their occurrence:
The central question is, how can the
existing risk assessment tools be
improved; are the needs of the users—
including state, tribal, and local
government planners—being considered
sufficiently?

In addition to these early safety
management and planning issues, the
panel invites comments on safety
considerations that will become
increasingly important as the system for
transporting spent nuclear fuel and high-
level radioactive waste becomes more
clearly defined and established. Safety
issues that will grow in importance
include:

• Transportation Cask Integrity: The
question is, can transportation
containers be designed and constructed
to prevent the release of radioactive
material under normal and accident
conditions? If so, how can public
confidence in transportation safety be
enhanced?

• Transportation Operations: One of
the main questions is, are current
routing criteria adequate? If so, how can
inspection and enforcement measures
be improved?

• Emergency Preparedness: The
central question is, what contingency
plans need to be in place in communities
located along routes used to transport
spent nuclear fuel and high-level waste?

Dated: August 25,1990.

William D. Barnard,

Executive Director, Nuclear Waste Technical
Review Board.

|FR Doc. 90-20650 Filed 0-31-90; 8:45 am]

BILLING CODE 6820-AM-M

OFFICE OF PERSONNEL
MANAGEMENT

Federal Prevailing Rate Advisory
Committee; Open Committee Meeting

According to the provisions of section
10 of the Federal Advisory Committee
Act (Pub. L. 92-463), notice is hereby
given that meetings of the Federal
Prevailing Rate Advisory Committee
will be held on—

Wednesday, October 10,1990
Thursday, October 25,1990
Thursday, November 29,1990

The meeting will start at 10:30 a.m.
and will be held in room 5A06A, Office
of Personnel Management Building, 1900
E Street, NW., Washington, DC.

The Federal Prevailing Rate Advisory
Committee is composed of a Chairman,
representatives from five labor unions

holding exclusive bargaining rights for
Federal blue-collar employees, and
representatives from five Federal
agencies. Entitlement to membership on
the Committee is provided for in 5 U.S.C.
5347.

The Committee’s primary
responsibility is to review the Prevailing
Rate System and other matters pertinent
to establishing prevailing rates under
subchapter IV, chapter 53, 5 U.S.C., as
amended, and from time to time advise
the Office of Personnel Management.

These scheduled meetings will start in
open session with both labor and
management representatives attending.
During the meeting either the labor
members or the management members
may caucus separately with the
Chairman to devise strategy and
formulate positions. Premature
disclosure of the matters discussed in
these caucuses would unacceptably
impair the ability of the Committee to
reach a consensus on the matters being
considered and would disrupt
substantially the disposition of its
business. Therefore, these caucuses will
be closed to the public because of a
determination made by the Director of
the Office of Personnel Management
under the provisions of section 10(d) of
the Federal Advisory Committee Act
(Pub. L. 92-463) and 5 U.S.C.
552b(c)(9)(B). These caucuses may.
depending on the issues involved,
constitute a substantial portion of the
meeting.

Annually, the Committee publishes for
the Office of Personnel Management, the
President, and Congress a
comprehensive report of pay issues
discussed, concluded recommendations,
and related activities. These reports are
available to the public, upon written
request to the Committee’s Secretary.

The public i3 invited to submit
material in writing to the Chairman on
Federal Wage System pay matters felt to
be deserving of the Committee’s
attention. Additional information on
these meetings may be obtained by
contacting the Committee’s Secretary,
Office of Personnel Management,

Federal Prevailing Rate Advisory
Committee, room 1340,1900 E Street,
NW.. Washington, DC 20415 (202) 606-
1500.

Dated: August 27,1990.

Anthony F. Ingrassia,

Chairman, Federal Prevailing Rate Advisory
Committee.

[FR Doc. 90-20705 Filed 8-31-90; 8:45 am]

BILLING CODE 6325-01-M

DEPARTMENT OF STATE

[Public Notice 1253]

Office of the Procurement Executive,
Department of State Metric Program

ACTION: Public Notice 1253.

addresses: Department of State, Office
of the Procurement Executive. SA-6,
room 603, Washington. DC 20522-0606.
FOR FURTHER INFORMATION CONTACT:
John F. Black, Office of the Procurement
Executive, (703) 875-7042.
supplementary INFORMATION: Section
5164 of the Omnibus Trade and
Competitiveness Act of 1988 (Pub. L
100-418) designates the metric system of
measurement as the preferred system of
weights and measures for U.S. trade and
commerce. The law requires that
Federal agencies use the metric system
in procurements, grants, and other
business-related activities by a date
certain and to the extent economically
feasible by the end of fiscal year 1992.
The law also requires that Federal
.. agencies establish guidelines for
implementing the metric system of
measurement.

Publication of this notice serves to
inform the public, particularly
commercial firms doing business with
DOS, of the Department’s intent to use
the metric system of measurement in its
procurements, grants, and other
business-related activities, to the extent
feasible, by the end of fiscal year 1992.

The Department of State has
established the required policy
guidelines for transition from the
traditional system to the metric system
of weights and measurements. A copy of
the Department of State Metric System
Implementation Policy is available to
those interested persons who submit a
written request to the above address.

Dated: August 17.1990.

John J. Conway,

Procurement Executive.

[FR Doc. 90-20643 Filed 8-31-90; 8:45 am]

BILLING CODE 4710-M

DEPARTMENT OF TRANSPORTATION

Aviation Proceedings; Agreements
Filed During the Week Ended August
24,1950

The following Agreements were Filed
with the Department of Transportation
under the provisions of 49 U.S.C. 412
and 414. Answers may be filed within 21
days of date of filing.

Docket number: 47139.

Dote filed: August 24,1990.

35978

Federal Register / VoL 55. No. 171 / Tuesday. September 4. 1990 / Notices

Parties: Members of the International
Air Transport Association.

Subject: South America-Southwest
Pacific Resolutions et al.

Proposed effective date: October 1,
199a

Docket number: 47140.

Date filed: August 24.1990.

Parties: Members of the International
Air Transport Association.

Subject: Reso G33F—Cargo Rates/
Minimum Charges From Lebanon.

Proposed effective date: Once
Government Approvals have been
Received.

Phyllis T. Kaylor,

Chief, Documentary Services Division.

|FR Doc. 90-20692 Filed 8-31-90; 8:45 am]

B4LLING CODE 4910-62-11

Notice of Applications for Certificates
of Public Convenience and Necessity
and Foreign Air Carrier Permits Filed
Under Subpart Q During the Week
Ended August 24,1990

The following applications for
certificates of public convenience and
necessity and foreign air carrier permits
were filed under subpart Q of the
Department of Transportation’s
Procedural Regulations (see 14 CFR
302.1701 et 6eq.). The due date for
answers, conforming application, or
motion to modify scope are set forth
below for each application. Following
the answer period DOT may process the
application by expedited procedures.

Such procedures may consist of the
adoption of a show-cause order, a
tentative order, or in appropriate cases a
final order without further proceedings.
Docket Number: 47135.

Date Filed: August 22,1990.

Due Date for Answers, Conforming
Applications, or Motion to Modify
Scope: September 19,1990.

Description: Application of
Continental Airlines. Inc. pursuant to
section 401 of the Act and subpart Q of
the regulations, for amendment of its
certificate of public convenience and
necessity for Route 561, issued by Order
89-6-21 to provide scheduled foreign air
transportation of persons, property and
mail between Phoenix. Arizona and Los
Angeles, California, on the one hand,
and Mexico City. Mexico on the other.
Phyllis T. Kaylor,

Chief, Documentary Services Division.

[FR Doc. 90-20693 Filed 8-31-90, 8:45 am]

BILLING CODE 4910-62-41

Urban Mass Transportation
Administration

UMTA Section 3 and 9 Grant
Obligations

AGENCY: Urban Mass Transportation
Administration (UMTA], DOT.
action: Notice.

summary: The Department of
Transportation and Related Agencies
Appropriations Act, 1990, Public Law
101-164, signed into law by President

Section 3 Grants

George Bush on November 21,1989,
contained a provision requiring the
Urban Mass Transportation
Administration to publish
announcement in the Federal Register
every 30 days of grants obligated
pursuant to sections 3 and 9 of the
Urban Mass Transportation Act of 1964,
as amended. The statute requires that
the announcement include the grant
number, the grant amount, and transit
property receiving each grant. This
notice provides the information as
required by statute.

FOR FURTHER INFORMATION CONTACT:

Janet Lynn Sahaj, Chief, Resource
Management Division. Office of Capital
and Formula Assistance, Department of
Transportation, Urban Mass
Transportation Administration, Office of
Grants Management 400 Seventh Street
SW., room 9301. Washington. DC 2059a
(202) 366-2053.

SUPPLEMENTARY INFORMATION: This
section 3 program was established by
the Urban Mass Transportation Act of
1964 to provide capital assistance to
eligible recipients in urban areas.
Funding for this program is distributed
on a discretionary basis. The section 9
formula program was established by the
Surface Transportation Assistance Act
of 1982. Funds appropriated to this
program are allocated on a formula
basis to provide capital and operating
assistance in urbanized areas. Pursuant
to the statute UMTA reports the
following grant information:

Transit property

Grant No.

Grant

amount

Obligation

date

City of Phoenix, Phoenix, AZ.

AZ-03-0014-00

3,000,000

4,249.998

2,630,499

12£490

881,000

671.841

8,983,372

940,914

5,633,861

08/15/90

08/09/90

08/09/90

07/31/90

07/23/90

07/27/90

07/13/90

07/25/90

08/09/90

Mass Transit Administration. Baltimore, MD.

MD-03-0035-01

Mass Transit Administration, Baltimore. MD...

MD-03-0046-01

City of Phonix, Phoenix, AZ.......

AZ-90-X019-02

City of Visalia, Visalia, CA.......

Louisiana Department of Transportation & Development, New Orleans, LA_

Suburban Mobility Authority for Regional Transportation, Detroit, Ml___.._

Greater Roanoke Transit Company, Roanoke, VA.

Pierce County Public Transportation Benefit Area, Tacoma, WA.

CA-90-X374-00_

LA-90-X108-00 -.

MI-90-X122-00.

VA-90-X074-00_

WA-90-X105-00.

Issued on: August 27.1990.

Roland ]. Mross,

Deputy Administrator.

|FR Doc. 90-20637 Filed 8-31-90; 8:45 am]

BILLING CODE 4910-57-41

DEPARTMENT OF THE TREASURY
Office of Thrift Supervision
(LN-4/2J

Appointment of Conservator;
Ambassador Federal Savings and
Loan Association

Notice is hereby given that, pursuant
to the authority contained in section

5(d)(2) (B) and (H) of the Home Owners’
Loan Act of 1933, as amended by section
301 of the Financial Institutions Reform,
Recovery and Enforcement Act of 1989,
the Office of Thrift Supervision has duly
appointed the Resolution Trust
Corporation as sole Conservator for
Ambassador Federal Savings and Loan
Association, Tamarac, Florida on
August 24.1990.

Dated: August 27.1990.

Federal Register / Vol. 55, No. 171 / Tuesday, September 4, 1990 / Notices

35979

By the Office of Thrift Supervision.
Debra J. Aheam,

Program Analyst.

[FR Doc. 90-20686 Filed 8-31-90; 8:45 am]

BILLING CODE 6720-01-M

[LN-4/2]

Appointment of Conservator; Broken
Arrow Savings Association, F.A.

Notice is hereby given that, pursuant
to the authority contained in section
5(d)(2) (B) and (H) of the Home Owners’
Loan Act of 1933, as amended by section
301 of the Financial Institutions Reform.
Recovery and Enforcement Act of 1989,
the Office of Thrift Supervision has duly
appointed the Resolution Trust
Corporation as sole Conservator for
Broken Arrow Savings Association,

F.A., Broken Arrow, Oklahoma on
August 24,1990.

Dated: August 27,1990.

By the Office of Thrift Supervision.

Debra J. Aheam,

Program Analyst.

(FR Doc. 90-20687 Filed 8-31-90; 8:45 am]

BILLING CODE 6720-01-M

[LN-4/2]

Appointment of Conservator, First
Savings and Loan Association, F.A.

Notice is hereby given that, pursuant
to the authority contained in Section
5(d)(2) (B) and (H) of the Home Owners’
Loan Act of 1933, as amended by section
301 of the Financial Institutions Reform.
Recovery and Enforcement Act of 1989,
the Office of Thrift Supervision has duly
appointed the Resolution Trust
Corporation as sole Conservator for
First Savings and Loan Association,

F.A., Temple, Texas, on August 24,1990.
Dated: August 27,1990.

By the Office of Thrift Supervision.

Debra J. Aheam,

Program Analyst.

[FR Doc. 90-20688 Filed 8-31-90; 8:45 am]

BILLING CODE 6720-01-M

1LN-4/1]

Appointment of Receiver; Ambassador
Savings and Loan Association

Notice is hereby given that, pursuant
to the authority contained in section
5(d)(2)(C) of the Home Owners’ Loan
Act of 1933, as amended by section 301
of the Financial Institutions Reform,
Recovery and Enforcement Act of 1989,
the Office of Thrift Supervision has duly
appointed the Resolution Trust
Corporation as sole Receiver for

Ambassador Savings and Loan
Association, Tamarac, Flordia, on
August 24,1990.

Dated: August 27.1990.

By the Office of Thrift Supervision.
Debra J. Aheam,

Program Analyst.

[FR Doc. 90-20679 Filed 8-31-90; 8:45 am]

BILLING COOE 6720-01-M

[LN-4/1J

Appointment of Receiver, Broken
Arrow Federal Savings and Loan
Association

Notice is hereby given that, pursuant
to the authority contained in section
5(d)(2)(A) of the Home Owners’ Loan
Act of 1933, as amended by section 301
of the Financial Institutions Reform,
Recovery and Enforcement Act of 1989,
the Office of Thrift Supervision has duly
appointed the Resolution Trust
Corporation as sole Receiver for Broken
Arrow Federal Savings and Loan
Association, Broken Arrow, Oklahoma
on August 24,1990.

Dated: August 27,1990.

By the Office of Thrift Supervision.

Debra J. Aheam,

Program Analyst

[FR Doc. 90-20680 Filed 8-31-90; 8:45 am]
BILLING CODE 6720-01-M

[LN-4/1]

Appointment of Receiver; Chlliicothe
Federal Savings and Loan Association

Notice is hereby given that, pursuant
to the authority contained in section 5
(d)(2)(F) of the Home Owners* Loan Act
of 1933, as amended by section 301 of
the Financial Institutions Reform,
Recovery, and Enforcement Act of 1989,
the Office of Thrift Supervision has duly
appointed the Resolution Trust
Corporation as sole Receiver for
Chillicothe Federal Savings and Loan
Association, Chillicothe, Illinois. Docket
No. 3416, on August 24.1990.

Dated: August 27,1990.

By the Office of Thrift Superv ision.

Debra J. Aheam,

Program Analyst.

[FR Doc. 90-20681 Filed 8-31-90; 8:45 am]
BILUNG COOE 6720-01-M

ILN-4/1]

Appointment of Receiver; First Federal
Savings and Loan Association

Notice is hereby given that, pursuant
to the authority contained in section 5

(d)(2)(A) of the Home Owners’ Loan Act
of 1933, as amended by section 301 of
the Financial Institutions Reform,
Recovery, and Enforcement Act of 1989,
the Office of Thrift Supervision has duly
appointed the Resolution Trust
Corporation as sole Receiver for First
Federal Savings and Loan Association,
Temple, Texas, Docket No. 3349. on
August 24, 1990.

Dated: August 27.1990.

By the Office of Thrift Supervision.

Debra J. Aheam,

Program Analyst.

[FR Doc. 90-20G02 Filed 8-31-SO; 8:45 am]
BILLING COOE 6720-01-M

[LN-4/1]

Appointment of Receiver; Heritage
Savings Association F.A.

Notice is hereby given that, pursuant
to the authority contained in § 5(d)(2)(F)
of the Home Owners' Loan Act of 1933,
as amended by § 301 of the Financial
Institutions Reform, Recovery and
Enforcement Act of 1989, the Office of
Thrift Supervision has duly appointed
the Resolution Trust Corporation as sole
Receiver for Heritage Savings
Association, F.A., Jerseyville, Illinois,
Docket No. 8658, on August 24,1990.

Dated: August 27,1990.

By the Office of Thrift Supervision.

Debra J. Aheam,

Program Analyst

[FR Doc. 90-20C83 Filed 8-31-90; 8:45 am|

BILLING COOE 6720-01-M

[LN-4/1

Appointment of Receiver, Investment
Federal Savings and Loan Association

Notice is hereby given that, pursuant,
to the authority contained in section 5
(d)(2)(F) of the Home Owners’ Loan Act
of 1933, as amended by section 301 of
the Financial Institutions Reform,
Recovery, and Enforcement Act of 1989,
the Office of Thrift Supervision has duly
appointed the Resolution Trust
Corporation as sole Receiver for
Investment Federal Savings and Loan
Association, Woodland Hills, California,
Docket No. 8735, on August 24,1990.

Dated: August 27.1990.

By the Office of Thrift Supervision.

Debra J. Aheam,

Program Analyst

[FR Doc. 90-20684 Filed 8-31-90; 8:45 am]

BILLING COOE 6720-01-M

35980_Federal Register / Vol. 55, No. 171 / Tuesday. September 4, 1990 / Notices

ILN-4/1] [LN-4/1] [LN-4/1]

Appointment of Receiver; Jefferson
Savings and Loan Association

Notice is hereby given that, pursuant
to the authority contained in section
5(d)(2)(F) of the Home Owners’ Loan
Act of 1933, as amended by section 301
of the Financial Institutions Reform,
Recovery, and Enforcement Act of 1989,
The Office of Thrift Supervision has
duly appointed the Resolution Trust
Corporation as sole Receiver for
Jefferson Savings and Loan Association,
Beaumont, Texas, Docket No. 6882, on
August 24,1990.

Dated: August 27,1990.

By the Office of Thrift Supervision.

Debra J. Aheam,

Program Analyst.

|FR Doc. 90-20685 Filed 8-31-90, 8:45 am]
BILLING CODE 6720-01-H

Replacement of Conservator With a
Receiver, Lakeland Savings Bank,
F.S.B.

Notice is hereby given that pursuant
to the authority contained in subdivision
(F) of section 5(d)(2) of the Home
Owners’ Loan Act of 1933, as amended
by section 301 of the Financial
Institutions Reform, Recovery and
Enforcement Act of 1989, the Office of
Thrift Supervision duly replaced the
Resolution Trust Corporation as
Conservator for Lakeland Savings Bank,
F.S.B., Detroit Lakes, Minnesota
(“Association"), with the Resolution
Trust Corporation as sole Receiver for
the Association on August 24.1990.
Dated: August 27. 199a
By the Office of Thrift Supervision.

Debra J. Aheam,

Program Analyst.

[FR Doc. 90-20690 Filed 8-31-90, 8:45 am]

BILLING CODE 6720-01-■

Replacement of Conservator With a
Receiver; Westwood Savings and Loan
Association

Notice is hereby given that, pursuant
to the authority contained in subdivision
(F) of section 5(d)(2) of Home Owners’
Loan Act of 1933, as amended by section
301 of the Financial Institutions Reform,
Recovery, and Enforcement Act of 1989,
the Office of Thrift Supervision duly
replaced the Resolution Trust
Corporation as Conservator for
Westwood Savings and Loan
Association, Los Angeles, California
("Association"), with the Resolution
Trust Corporation as sole Receiver for
the Association on August 24,1990.

Dated: August 27,1990.

By the Office of Thrift Supervision.

Debra J. Aheam,

Program Analyst

(FR Doc. 90-20689 Filed 8-31-90: 845 am]

BILLING CODE 6720-01-M

35981

Sunshine Act Meetings

Federal Register

Vol. 55, No. 171
Tuesday, September 4, 1990

This section of the FEDERAL REGISTER
contains notices of meetings published
under the “Government in the Sunshine
Act* *’ (Pub. L 94-409) 5 U.S.C. 552b(e)(3 ).

UNIFORMED SERVICES UNIVERSITY OF THE
HEALTH SCIENCES

Meeting Notice

TIME AND DATE: 8:00 a.m.. September 24,
1990.

PLACE: Uniformed Services University of
the Health Sciences, Room D3-001,4301
Jones Bridge Road, Bethesda, Maryland
20814-4799.

STATUS: Open—under “Government in
the Sunshine Act” (5 U.S.C. 552b(e)(3)).

MATTERS TO BE CONSIDERED:

8:00 a.m. Meeting—Board of Regents

(1) Approval of Minutes—July 9,1990;

(2) Faculty Matters; (3) Report—
Admissions; (4) Report—Associate
Dean for Operations; (5) Report—
Dean, Military Medicine Education
Institute; (6) Report—Nursing School
Task Force; (7) Report—Oversight and
Planning Committees; (8) Report—
President, USUHS; (9) Comments—
Members, Board of Regents; (10)
Comments—Chairman, Board of
Regents
New Business

SCHEDULED MEETINGS: October 29,1990.
CONTACT PERSON FOR MORE

information: Charles R. Mannix,
Executive Secretary of the Board of
Regents, 202/295-3028.

Dated: August 30,1990.

LM. Bynum,

Alternate OSD Federal Register Liaison
Officer, Department of Defense.

(FR Doc. 90-20830 Filed 8-30-90; 1:02 pm]

BILUNG COOE 3810--01-M

FEDERAL DEPOSIT INSURANCE
CORPORATION

Notice of Agency Meeting

Pursuant to the provisions of the

* Government in the Sunshine Act“ (5
U.S.C. 552b), notice is hereby given that
at 2:18 p.m. on Tuesday, August 28,1990,
the Board of Directors of the Federal
Deposit Insurance Corporation met in
closed session to consider the following
matters:

Matters relating to the probable failure of
certain insured banks.

Recommendation concerning
administrative enforcement proceedings.

Request of Wauwatosa Savings and Loan
Association, Wauwatosa, Wisconsin,
regarding its voluntary withdrawal from
membership in the Federal Home Loan Bank
system.

Personnel matters.

Matter relating to the Corporation’s
corporate activities.

In calling the meeting, the Board
determined, on motion of Director C.C.
Hope, Jr. (Appointive), seconded by
Director Robert L. Ciarke (Comptroller
of the Currency), concurred in by
Director T. Timothy Ryan. Jr. (Director
of the Office of Thrift Superv ision), Vice
Chairperson Andrew C. Hove, Jr., and
Chairman L. William Seidman, that
Corporation business required its
consideration of the matters on less than
seven days’ notice to the public; that no
earlier notice of the meeting was
practicable; that the public interest did
not require consideration of the matters
in a meeting open to public observation;
and that the matters could be
considered in a closed meeting by
authority of subsections (c)(2), (c)(4),
(c)(6), (c)(8), (c)(9)(A)(ii), (c)(9)(B). and
(c)(10) of the “Government in the
Sunshine Act” (5 U.S.C. 552b(c)(2), (c)(4),
(c)(6). (c)(8), (c)(9)(A)(ii), (c)(9)(B). and
(c)(10)).

The meeting was held in the Beard
Room of the FDIC Building located at
550—17th Street NW., Washington, D.C.

Dated: August 29,1990.

Federal Deposit Insurance Corporation.

M. Jane Williamson,

Assistant Executi ve Secretary.

(FR Doc. 90-20768 Filed 8-29-90; 5:08 pm]

BILLING COOE 6714-01-M

INTERSTATE COMMERCE COMMISSION

Commission Voting Conference

TIME AND DATE: 10:00 a.m., Tuesday,
September 11,1990.

place: Hearing Room A, Interstate
Commerce Commission. 12th &
Constitution Avenue, NW., Washington,
DC. 20423.

status: The purpose of the conference
is for the Commission to discuss among
themselves, and to vote on, the agenda
items. Although the conference is open
for the public observation, no public
participation is permitted.

MATTERS TO BE DISCUSSED:

No. 39169, Shippers Committee, OT-5 v.
The Ann Arbor Railroad, et al.

No. AB-321X, Kansas City Public
Service Freight Operation —
Abandonment Exemption—in Jackson
County, MO

Finance Docket No. 31908, PSI Energy,
Inc.—Feeder Line Development —
Norfolk Southern Cap., Line Between
Cynthiana and Carol IN
Finance Docket No. 31281, Arkansas &

Missouri Railroad Company v.
Missouri Pacific Railroad Company.

CONTACT PERSON FOR MORE

information: A. Dennis Watson. Office
of External Affairs. Telephone: (202)
275-7252. TDD: (202) 275-1721.

Sidney L. Strickland, Jr.,

Secretary.

(FR Doc. 90-20829 Filed 8-30-90; 1:02 pm)
BILUNG CODE 7035-01-M

RESOLUTION TRUST CORPORATION

Notice of Agency Meeting

Pursuant to the provisions of the
“Government in the Sunshine Act” (5
U.S.C. 552b), notice is hereby given that
at 3:15 p.m. on Tuesday, August 28,1990,
the Board of Directors of the Resolution
Trust Corporation met in closed session
to consider matters relating to the
resolution of failed thrift institutions.

In calling the meeting, the Board
determined, on motion of Director C.C.
Hope, Jr. (Appointive), seconded by
Director Robert L. Clarke (Comptroller
of the Currency), concurred in by
Chairman L. William Seidman, Vice
Chairman Andrew C. Hove, and
Director T. Timothy Ryan, Jr. (Director
of the Office of Thrift Supervision), that
Corporation business required its

35982 Federal Register / Vol. 55, No. 171 / Tuesday, September 4, 1990 / Sunshine Act Meetings

consideration of the matters on less than
seven days’ notice to the public; that no
earlier notice of the meeting was
practicable; that the public interest did
not require consideration of the matters
in a meeting open to public observation;
and that the matters could be
considered in a closed meeting by
authority of subsections (c)(8). (c)(9)(A),
and (c)(9)(B) of the “Government in the
Sunshine Act” (5 U.S.C. 552b (c)(8),
(c)(9)(A), and (c)(9)(B)).

The meeting was held in the Board
Room of the Federal Deposit Insurance
Corporation Building located at 550 17th
Street, NW., Washington, DC.

Dated: August 29,1990.

Resolution Trust Corporation.

William J. Tricarico,

Assistant Executive Secretary .

|FR Doc. 90-20769 Filed 8-29-90; 5:08 pm]

BILUNG COOE 6714-01-11

35983

Corrections

i ■ ■ ■ ■■ ■■■ ■ ■ ■

Federal Register

Vol. 55, No. 171

Tuesday. September 4. 1990

This section of the FEDERAL REGISTER
contains editorial corrections of previously
published Presidential, Rule. Proposed
Rule, and Notice documents. These
corrections are prepared by the Office of
the Federal Register. Agency prepared
corrections are issued as signed
documents and appear in the appropriate
document categories elsewhere in the
issue.

FEDERAL MARITIME COMMISSION

46 Part 540

[Docket No. 90-01]

Security for the Protection of the
Public, Maximum Required
Performance Amount

Correction

In rule document 90-19824 beginning
on page 34564 in the issue of Thursday,
August 23,1990, make the following
correction:

On page 34564, in the first column, the
‘ EFFECTIVE date” is corrected to read
"February 19,1991.”

BILLING CODE 150$-01-0

DEPARTMENT OF THE INTERIOR

Bureau of Land Management

[Docket No. CA-065-09-3110-10-DTNA,*0-
00160]

Realty Action-Exchange; California

Correction

In notice document 90-15015 beginning
on page 26515 in the issue of Thursday,
June 28.1990, make the following
correction:

On page 26515 in the third column, in
the third line, the land description
should read "Sec. 5. NWttSWttSEtt,
NW V4SW V 4 SW W.

BILUNG CODE 15C5-01-0

DEPARTMENT OF THE INTERIOR

Bureau of Land Management

I CO-932-00-4214-10; C-43908]

Proposed Withdrawal; Opportunity for
Public Meeting; Colorado

Correction

In notice document 90-19574
appearing on page 34089 in the issue of
Tuesday, August, 211990, make the
following correction:

On page 34089 in the second column
under the Sixth Principal Meridian
heading, in section 27, the land
description should read "SVfeNEVi and
SVfc".

BILUNG CODE 1505-01-D

DEPARTMENT OF THE INTERIOR

Bureau of Land Management

[ WY-930-00-4214-10; WYW 120797]

Proposed Withdrawal and Opportunity
for Public Meeting; Wyoming

Correction

In notice document 90-19495
appearing on page 33964 in the issue of
Monday, August 20 1990, make the
following corrections:

In the second column, under the land
description for "Medicine Bow National
Forest”:

a. At section 17 remove the comma
after ”WW.

b. At section 12, replace the final
semicolon with a comma and add
“SE’ASEW’.

c. At section 13, in the first line,
remove the final "NEW and add
”NW W.

d. At section 13 in the second line, the
first "NWW should read "NEW.

e. At section 25, in the first line,
"NWW should read "NW W.

f. At section 33, in the last line, "SEW
should read "SEW.

BILLING CODE 1505-01-D

DEPARTMENT OF TRANSPORTATION
Coast Guard

33 CFR Parts 127 and 154

46 CFR Parts 25, 32, 34, 50, 52, 53, 54,
55, 56, 57, 58, 59, 71, 76, 91, 92, 95, 107,
108, 150,153, 162, 163,169, 170, 174,
182,189,190, and 193

[CGD 88-032]

RIN2115AD05

Incorporation and Adoption of
Industry Standards

Correction

In proposed rule document CO-19235
beginning on page 33824 in the issue of
Firday, August 17,1990, make the
following correction:

On page 33825, in the second column,
under "discussion of regulations

PROPOSED FOR TITLE 46, CFR”, in the

second paragraph, in the thirteenth line,
"SAE J-1923” should read ”SAE J-1928”.

BILLING COOE 1505-01-0

Tuesday

September 4, 1990

Part II

Department of
Transportation

Coast Guard

33 CFR Parts 151, 155, and 158
46 CFR Part 25

Regulations Implementing the Pollution-
Prevention Requirements of Annex V of
MARPOL 73/78; Final Rule

35986 Federal Register / Vol. 55. No. 171 / Tuesday. September 4, 1990 / Rules and Regulations

DEPARTMENT OF TRANSPORTATION
Coast Guard

33 CFR Parts 151,155, and 158

46 CFR Part 25
[CGD 88-002]

RIN 2115-AC89

Regulations Implementing the
Pollution-Prevention Requirements of
Annex V of MARPOL 73/78

agency: Coast Guard, DOT.
action: Final rule.

summary: This Final rule implements the
Act to Prevent Pollution from Ships (the
Act), as amended by the Marine Plastic
Pollution Research and Control Act of
1987 (MPPRCA) and by Public Law 101-
225, having taken account of comments
received on the interim rule published
on April 28,1989 [54 FR 18384]. This
Final rule ultimately implements Annex
V of the International Convention for
the Prevention of Pollution from Ships,
1973, as modified by the Protocol of 1978
(MARPOL 73/78). The Coast Guard
expects that this rule will reduce the
amount of plastics, including synthetic
fishing nets, and other ship-generated
garbage intentionally discharged into
the marine environment.

EFFECTIVE DATE: September 4,1990.

addresses: 1 . A Final Regulatory
Evaluation, a final Environmental
Assessment, and copies of the
comments received on the Advance
Notice of Proposed Rulemaking
(ANPRM), the Notice of Proposed
Rulemaking (NPRM), and the interim
rule are available for inspection and
copying at the office of the Marine
Safety Council, U.S. Coast Guard, Room
3314, 2100 Second Street SW.,
Washington, DC 20593-0001. Office
hours are between 8:00 a.m. and 3:00
p.m., Monday through Friday, except
Federal holidays.

2. Persons wanting to submit
comments on the information-collection
requirement in this Final rule should
submit them to the Office of Information
and Regulatory Affairs, Office of
Management and Budget, 725 17th Street
NW., Washington, DC 20503, Attention:
Desk Officer, Coast Guard.

FOR FURTHER INFORMATION CONTACT.

Lieutenant Commander David W. Jones.
Project Manager, Office of Marine
Safety, Security, and Environmental
Protection (G-MPS-3). (202) 267-0491.
between 7 a.m. and 3:30 p.m., Monday
through Friday, except Federal holidays.

SUPPLEMENTARY INFORMATION:

Drafting Information

The principal persons involved in
drafting this final rule are Lieutenant
Commander David W. Jones, Project
Manager, OfFice of Marine Safety,
Security, and Environmental Protection,
and Mr. Patrick J. Murray, Project
Counsel, Office of Chief Counsel.

Background

The Coast Guard published an
ANPRM in the Federal Register on June
24,1988 (53 FR 23884), and an NPRM in
the Federal Register on October 27,1988
(53 FR 43622). Further, it published two
minor correctional notices in the Federal
Register, on November 4,1988 (53 FR
44617), and November 21.1988 (53 FR
46977).

The Coast Guard held three public
hearings to give interested persons an
opportunity to express their views on
the NPRM. These hearings took place in
Washington, DC (November 10,1988),
Houston, Texas (November 14,1988),
and Seattle, Washington (November 15,
1988).

The Coast Guard published an interim
rule, with a request for comments, in the
Federal Register on April 28,1989 (54 FR
18384). That interim rule is the basis for
this final rule. The comment period for
the interim rule closed on December 31,
1989.

Discussion of Comments and Changes

The Coast Guard published an interim
rule (in a separate rulemaking, CGD 89-
014), which implements the Shore
Protection Act of 1988, in the Federal
Register on May 24,1989 (54 FR 22546).
That rule, among other things,
reorganizes 33 CFR part 151, but it
makes no substantive changes to the
interim rule that is the basis of this Fmal
rule.

The latter interim rule, which
implements the Act, published on April
28.1989, reserves 33 CFR 151.55,151.57,
and 151.59, which regard, respectively,
recordkeeping requirements, waste-
management plans, and placards, and
which all regard pollution by garbage.
The Coast Guard published an NPRM on
these topics (in yet another separate
rulemaking, CGD 88-002A) in the
Federal Register on September 6,1989
(54 FR 37084), and it published an
interim final rule and a request for
comments on these topics (also in CGD
88-002A) in the Federal Register on May
2,1990 (55 FR 18578). That rule, among
other things, makes formal,
administrative changes to the interim
rule that is the basis of this final rule, to
bring it into conformity with the
reorganization of part 151.

33 CFR Part 151—Vessels Carrying Oil,
Noxious Liquid Substances, Garbage,
and Municipal or Commercial Waste

33 CFR 151.04 Penalties for Violations

1. One comment suggested that the
civil penalties for violation of the
regulations are too high and are
disproportionate to the environmental
harm caused by such violation.

The penalties listed in the regulations
merely repeat the penalties established
by the Act; these penalties are ceilings.
Final penalties are determined by
Hearing Officers of the Coast Guard
after consideration of relevant factors.

33 CFR 151.05 Definitions

2. One comment suggested that the
definition of “Plastic” proposed at

§ 151.05 was too broad and could be
construed to include material not
intended by the Coast Guard. The
comment pointed out that paper could
come within the definition of plastic and
that so could plastics derived from
natural sources, such as crabshells and
other plastic-like material that appear
normally in the marine environment.

The Coast Guard agrees that the
definition, by itself, does seem to
include naturally produced plastics
discharged during the catching or
processing of fish. The intent of the
Coast Guard, to exclude this material,
was clear enough in the preamble to the
NPRM. There the Coast Guard stated, at
54 FR 18387:

Some plastic materials are produced
naturally in the marine environment by living
organisms. For example, chitin is a primary
component of the shells of crabs, shrimp and
lobsters, among others. The Coast Guard’s
broad definition of plastic is intended to
regulate synthetically produced plastics,
including chitin-derived and other plastics
which have been harvested and adopted for
use by man. Several European nations are
now manufacturing packaging materials for
personal hygiene products which are
primarily chitin-derived. While this rule is
intended to prohibit the discharge from ships
of synthetically produced plastics, it is not
intended to regulate the discharge of
naturally produced plastics during fishery
activities, such as crabshells and others
which appear in the marine environment.

Even so, the Coast Guard has amended
its definition of plastic to square
definition with intent. Likewise, it has
amended the note following the
definition to clarify the status of
“naturally produced plastics”.

The Coast Guard still does not agree
that either the old or the new definition
of plastic fairly includes material such
as paper. Both Annex V of MARPOL
and the interim rule, as did the NPRM.

Federal Register / Vol. 55, No. 171 / Tuesday, September 4, 1990 / Rules and Regulations 35987

employ distinct categories for plastic
and paper.

3. One comment suggested expanding
the definition of “Plastic" to include
glass, paints, varnishes, and waxes.

Discharges and releases of these
substances are the concern of other
statutes, such as the Clean Water Act
(33 U.S.C. 1251 et seq.) and the
Comprehensive Environmental
Response, Compensation, and Liability
Act (42 U.S.C. 9601 et seq .).

4. One comment suggested expanding
the definition of “Port" to cover
transfers from ship to ship offshore. The
author was worried that, if fish-
processing ships refused to accept
garbage from the catcher vessels
supplying them with fish, the catcher
vessels would be unable to retain their
garbage on board. The comment
recommended that the definition
classify these processing ships and
similar operations as ports, so they
would have to provide reception
facilities for the catcher vessels (or other
ships they were doing business with).

The Coast Guard has investigated this
issue and has not uncovered any reports
of difficulty in compliance offshore with
the discharge requirements of Annex V.
The Coast Guard conducts routine
boardings of ships in fisheries offshore
and will continue to monitor compliance
there with Annex V. If, in the future,
these boardings indicate a failure of
such compliance, the Coast Guard will
undertake appropriate enforcement or
regulation.

33 CFR 151.C8 Denial of Entry

5. One comment expressed confusion
over the applicability of this section.

Section 151.08 applies to all three
Annexes in force, I, II, and V. Paragraph
(a) of § 151.08 authorizes denial of entry
to ships under Annexes I and II.
Paragraph (b) of § 151.08 authorizes
denial, by the Captain of the Port, of
entry to ships at ports or terminals not
in compliance with Annex V.

33 CFR 151.63 Shipboard Control of
Garbage

6. One comment suggested that ships
be required to furnish both equipment
for treating garbage and spaces for
handling it.

The approach used by the Coast
Guard in developing these regulations
was to establish performance standards
but to let the affected industry and the
public choose the methods they would
use to meet those standards. The Coast
Guard believes that this approach lets
the United States meet the
environmental standards of Annex V
and yet provides the flexibility for those
regulated to meet the performance

standards in the most economical
manner.

7. One comment recommended further
study of shipboard use of incinerators.

The Coast Guard presided over a
working group of the American Society
for Testing and Materials (ASTM),
which developed a proposed standard
for small shipboard incinerators. The
standard is now going through the
approval process of ASTM.

8. One comment recommended
subjecting ships to State and local
requirements for the separation of
waste-stream components.

The Coast Guard has published an
interim final rule that addresses these
topics, among others, in a separate
rulemaking, CGD 88-002A (55 FR 18578).
In that rule, the Coast Guard requires
that placards listing the garbage-
discharge restrictions of Annex V be
displayed by certain ships. The placards
must include a notice that regional,

State, and local restrictions on garbage
discharges may also apply.

33 CFR 151.69 Operating
Requirements: Discharge of Garbage
Outside Special Areas

9. One comment suggested that a
policy of “zero tolerance" would be
appropriate for the disposal of garbage
at sea, and two suggested that the rules
prohibiting the discharge of unground
victual wastes within three nautical
miles from the nearest land are too
severe and pose a hardship.

Like the NPRM and the interim rule,
this final rule tracks the standards
established by Annex V of MARPOL
and adopted by Congress in the Act.

The discharge of refuse within three
nautical miles from the nearest land has
long been prohibited by the Refuse Act
(33 U.S.C. 407).

33 CFR 151.73 Operating
Requirements: Discharge of Garbage
From Fixed or Floating Platforms

10. Two comments stated that the
more restrictive rules for the discharge
of victual waste from fixed or floating
platforms lack basis in biological
science and create an unreasonable
burden for the offshore exploration,
exploitation, and processing of minerals.

Congress adopted the provisions of
Annex V as domestic law in approving
the Act, and the Coast Guard has merely
restated these provisions in
promulgating this final rule. Because of
the specificity of Regulation 4 of Annex
V, the Coast Guard cannot alter the
requirements for discharges of garbage
from fixed or floating platforms.

33 CFR 151.77 Exceptions for
Emergencies

11. One comment recommended literal
conformity between the text of
paragraph 151.77(c) and that of Annex
V.

The Coast Guard finds no substantive
difference between the language of
paragraph 151.77(c) and that of Annex
V.

12. One comment asked that the Coast
Guard either identify text in the
MPPRCA that restricts it from
undertaking programs to recover lost
fishing gear or else undertake such
programs.

Title IV of MPPRCA addresses
monitoring, assessing, and controlling
the impact of driftnets on the marine
environment. Title IV falls under the
responsibility of the Department of
Commerce. It requires the Secretary of
Commerce to conduct several
evaluations including both (a) studies of
the feasibility of establishing systems of
marking, registering, and identifying
driftnets and (b) paying bounties for
retrieved driftnets. Neither these
evaluations nor any resultant legislative
or regulatory action falls under the
responsibility of the Coast Guard.

33 CFR Part 158—Reception Facilities
for Oil, Noxious Liquid Substances, and
Garbage

33 CFR 156.160 Purpose

13. One comment recommended
adding language to require inspections
of reception facilities after the issuance
of their Certificates of Adequacy
(COAs).

The Coast Guard believes adding such
language is unnecessary. It already
conducts annual surveys and
inspections of waterfront facilities and
already visits other facilities in the
course of routine business. The Act does
not require it to inspect reception
facilities under Annex V, and another
mandatory inspection would place an
economic burden on the regulated
industry and an administrative one on
the Coast Guard—which will,
nonetheless, promptly investigate
reports of inadequate reception
facilities.

33 CFR 158.165 Certificate of
Adequacy: Change of Information

14. The Coast Guard has made an
editorial correction to subparagraph
(b)(3) of § 158.185. The interim rule
improperly listed the sections of Form C
as: Al, Bl, B2, or C4. This final rule
properly lists them as: Al. Bl, B2, or D4.

35988 Federal Register / Vol. 55, No. 171 / Tuesday, September 4, 1990 / Rules and Regulations

33 CFR 158.410 Reception Facilities:
General

15. One comment recommended that
the Coast Guard require the posting of
signs to locate and identify each
reception facility.

Responding to comments on the
NPRM, the Coast Guard has earlier
amended this subpart to require that
reception facilities be accessible to
mariners: easy for mariners unfamiliar
with the port to find, and convenient for
them to use. The Coast Guard has not
received any comments stating that
reception facilities were hard to find or
awkward to use. Therefore, the Coast
Guard does not believe it necessary to
require the posting of such signs.

Regulatory Evaluation

The Coast Guard considers this final
rule not to be major under Executive
Order 12291 though to be significant
under DOT regulatory policies and
procedures published on February 26,
1979 [44 FR11034]. This final rule
clarifies, but does not otherwise alter,
the interim rule published on April 28,
1989 [54 FR 18384]. The annual projected
costs remain around $41.8 million; the
annual projected benefits, while harder
to quantify, should exceed these. A final
Regulatory Evaluation is in the
rulemaking docket The Evaluation is
available for inspection and copying at
the address indicated in the first
paragraph of ADDRESSES above.

Regulatory Flexibility Act

The Coast Guard has analyzed
regulatory flexibility to evaluate the
impact of this final rule on small
entities. It has made its analysis part of
the final Regulatory Evaluation in
accordance with the Regulatory
Flexibility Act. Again, this final rule
clarifies, but does not otherwise alter,
the interim rule published on April 28,
1989 [54 FR 18384). Like the interim rule,
this final rule will affect around 17,600
small vessels and around 4,400 ports
and terminals; but small entities may
choose their modes of compliance, and
need satisfy only minimal requirements
on recordkeeping and reporting.
Therefore, the Coast Guard certifies that
this final rule will not have a significant
economic impact or a substantial
number of small entities.

Paperwork Reduction Act

The interim rule changed the
information-collection requirement at
§ § 151.65 and 158.140. This final rule
changes it no further. The Coast Guard,
however, did submit to the Office of

Management and Budget (OMB)
revisions to OMB’s previous paperwork
approvals. These revisions, now
accepted, respectively bear control
numbers 2115-0544 and 2115-0543,
issued by the Regulatory Information
Service Center (RISC) of OMB. Those
sections respectively require (a) each
master to give a port 24 hours’ notice of
the need for the APHIS-approved
reception facility and (b) each port and
terminal that satisfies the criteria of
§ 158.140 to seek from the Coast Guard a
COA for garbage.

Federalism

The Coast Guard has analyzed this
final rule in accordance with the
principles and criteria in Executive
Order 12612. It has determined that the
substance of this rule does not implicate
federalism enough to warrant its
preparation of a Federalism
Assessment.

Environmental Impact

A final Environmental Assessment,
with a Finding of No Significant Impact,
is available from the Coast Guard at the
address in the first paragraph of
ADDRESSES above.

List of Subjects

33 CFR Part 151

Oil pollution, Reporting and
recordkeeping requirements, Water
pollution control.

33 CFR Part 155

Oil pollution. Reporting and
recordkeeping requirements.

33 CFR Part 158

Administrative practice and
procedure. Harbors, Oil pollution.
Penalties, Reporting and recordkeeping
requirements, Water pollution control.

46 CFR Part 25

Fire prevention. Marine safety.

For the reasons discussed above, the
interim rule amending 33 CFR parts 151,
155, and 158, and 46 CFR part 25, which
was published on April 28,1989 [54 FR
18384], is adopted as a final rule with
the following changes:

TITLE 33

PART 151—VESSELS CARRYING OIL,
NOXIOUS LIQUID SUBSTANCES,
GARBAGE, AND MUNICIPAL OR
COMMERCIAL WASTE

1. The citation of authority for part 151
continues to read as follows:

Authority: 33 U.S.C. 1321(j)(l)(C) and
1903(b), E.0.11735. 3 CFR. 1971-1975 COMP
p. 793, 49 CFR 1.48.

2. Section 151.05 is amended by
adding the following definition:

§ 151.05 Definitions.

« • • * *

Plastic means any garbage that is
solid material, that contains as an
essential ingredient one or more
synthetic organic high polymers, and
that is formed or shaped either during
the manufacture of the polymer or
polymers or during fabrication into a
finished product by heat or pressure or
both. “Degradable” plastics, which are
composed of combinations of
degradable starches and are either (a)
synthetically produced or (b) naturally
produced but harvested and adapted for
use, are plastics under this part.
Naturally produced plastics such as
crabshells and other types of shells,
which appear normally in the marine
environment, are not plastics under this
part

Note: Plastics possess material properties
ranging from hard and brittle to soft and
elastic. Plastics are used for a variety of
marine applications including, but not limited
to: food wrappings, products for personal
hygiene, packaging [vaporproof barriers,
bottles, containers, and liners), ship
construction (fiberglass and laminated
structures, siding, piping insulation, flooring,
carpets, fabrics, adhesives, and electrical and
electronic components), disposable eating-
utensils and cups (including styrene
products), bags, sheeting, floats, synthetic
fishing nets, monofilament fishing line,
strapping bands, hardhats, and synthetic
ropes and lines.

PART 158—RECEPTION FACILITIES
FOR OIL, NOXIOUS LIQUID
SUBSTANCES, AND GARBAGE

3. The citation of authority for part 158
continues to read as follows:

Authority: 33 U.S.C. 1903(b); 49 CFR 1.46.

4. Section 158.165(b)(3) is revised to
read as follows:

§ 158.165 Certificate of adequacy: change
of Information.

• • * * •

(b) ‘ * *

(3) Form C, sections Al, Bl, B2, or D4.

* ft * • «

Dated: June 26,1990.

J. W. Rime.

Admiral U.S . Coast Guard Commandant
[FR Doc. 90-20663 Filed 0-31-90; 8:45 am]

BILLING CODE 4S10-14-M

Tuesday,

September 4, 1990

Part III

Department of
Health and Human
Services

Health Care Financing Administration

42 CFR Parts 412 and 413
Medicare Program; Changes to the
Inpatient Hospital Prospective Payment
System and Fiscal Year 1991 Rates; Final

Register / Vol. 55, No. 171 / Tuesday, September 4, 1990 / Rule 3 and Regulations

DEPARTMENT OF HEALTH AND
HUMAN SERVICES

Health Care Financing Administration
42 CFR Parts 412 and 413
[BPD-673-F]

RIN 0938-AE56

Medicare Program; Changes to the
Inpatient Hospital Prospective
Payment System and Fiscal Year 1991
Rates

AGENCY: Health Care Financing
Administration (HCFA), HHS.
action: Final rule.

summary: We are revising the Medicare
inpatient hospital prospective payment
system to implement necessary changes
arising from legislation and our
continuing experience with the system.
In addition, in the Addendum to this
Final rule, we are describing changes in
the amounts and factors necessary to
determine prospective payment rates for
Medicare inpatient hospital services. In
general, these changes are applicable to
discharges occurring on or after October
1.1990. W'e also set forth rate-of-
increase limits for hospitals and hospital
units excluded from the prospective
payment system.

This final rule also responds to
comments received concerning changes
to hospital payments made in an April
20,1990 final rule with comment. These
changes include mid-year changes to the
inpatient hospital prospective payment
system that implemented provisions of
the Omnibus Budget Reconciliation Act
of 1989; and adjustments applicable to
prospective payment hospitals and to
the target amounts of hospitals and units
excluded from the prospective payment
system due to the elimination of the day
limitation on covered inpatient hospital
days made by the Medicare
Catastrophic Coverage Act of 1988 and
later repealed by provisions in the
Medicare Catastrophic Repeal Act of
1989. The April 20,1990 final rule with
comment also incorporated changes to
these provisions made by the Family
Support Act of 1988, which clarified the
criteria for adjusting the target amounts
and implementation date.

In addition, this final rule clarifies the
documentation requirements necessary
to support the cost allocation of teaching
physicians and the allowability of costs
for rotating residents in determining
payment for the direct costs of an
approved graduate medical education
program. This clarification is being
made as a result of a September 29,1989
final rule that made changes in

Medicare policy concerning payment for
the direct graduate medical education
costs of providers associated with
approved residency programs in
medicine, osteopathy, dentistry, and
podiatry.

effective DATE: The provisions of this
final rule are effective on October 1,
1990, except for the changes concerning
§ 412.118, the count of full-time
equivalent residents for purposes of the
indirect medical education adjustment,
which apply to cost reporting periods
beginning on or after July 1,1991.

FOR FURTHER INFORMATION CONTACT:
Barbara Wynn, (301) 968-4529.
ADDRESSES: To obtain individual copies
of this document, contact the following:
Superintendent of Documents, U.S.
Government Printing Office,

Washington, DC 20402, (202) 783-3238.
The charge for individual copies is $1.50
for each issue or for each group of pages
as actually bound, payable by check or
money order to the Superintendent of
Documents.

SUPPLEMENTARY INFORMATION:

I. Background

A. Summary

Under section 1886(d) of the Social
Security Act (the Act), a system of
payment for acute inpatient hospital
stays under Medicare Part A (Hospital
Insurance) based on prospectively-set
rates was established effective with
hospital cost reporting periods beginning
on or after October 1,1983. Under this
system. Medicare payment is made at a
predetermined, specific rate for each
hospital discharge. All discharges are
classified according to a list of
diagnosis-related groups (DRGs). The
regulations governing the inpatient
hospital prospective payment system
are located in 42 CFR Part 412.

B. Summary of December 29, 1989
Notice

On September 1,1989, we published a
final rule (54 FR 36452) to implement the
seventh year of the prospective payment
system. However, on December 19,1989,
the Omnibus Budget Reconciliation Act
of 1989 (Pub. L. 101-239) was enacted.

The portions of sections 6001, 6002, 6003,
6004, 6021, 6110, and 8205 of Public Law
101-239 that affected Medicare
payments to hospitals in Federal fiscal
year (FY) 1990 and that were self-
implementing, were announced in a
Federal Register notice published on
December 29.1989 (54 FR 53754). These
statutory changes provided for the
following:

• For discharges occurring on or after
January 1,1990 and before October 1,
1990, the applicable percentage increase

used to update the standardized
amounts for prospective payment
system hospitals is—

—9.72 percent for hospitals located in rural

areas:

—5.62 percent for hospitals located in large

urban areas; and

—4.97 percent for hospitals located in other

urban areas.

(The increase in the target amount for
excluded hospitals and units was not
changed and, therefore, continues to be
5.5 percent.)

• Effective for portions of cost
reporting periods or discharges
occurring during the period beginning
January 1,1990 and ending September
30,1990, payments for capital-related
costs of inpatient services of hospitals
under the prospective payment system
are reduced by 15 percent.

• For cost reporting periods beginning
on or after October 1,1989, the hospital-
specific rate of sole community hospitals
is updated by the percentage increase
applicable to the geographic area in
which the hospital is located. This
increase is applicable to discharges
occurring on or after January 1,1990.

• Hospitals that were classified as
rural referral centers as of September 30.
1989 continue to be classified as rural
referral centers for cost reporting
periods beginning on or after October 1,
1989 and before October 1,1992.

• Hospitals classified as cancer
hospitals are excluded from the
prospective payment system effective
with cost reporting periods beginning on
or after October 1,1989. The reduction
for payment of capital costs is
eliminated for hospitals classified as
cancer hospitals as of December 19,1989
efffective for portions of cost reporting
periods or discharges occurring on or
after October 1,1986. For hospitals
classified after December 19,1989, the
reduction for payment of capital costs is
eliminated for cost reporting periods
beginning on or after the date of
classification. Special provisions were
also made for hospitals that qualify for
cancer status before December 31,1990
(or before December 31,1991 for
hospitals located in States operating a
demonstration project under section
1814(b) of the Act as of December 19,
1989). Effective January 18,1990, a
cancer hospital is eligible to receive
periodic interim payments if it meets the
criteria for receiving these payments.

For cost reporting periods beginning on
or after April 1,1989, the base year for
determining target amounts for cancer
hospitals is to be the hospital’s cost
reporting period beginning during FY
1987 unless the use of its initial base

Federal Register / Vol. 55, No. 171 / Tuesday, September 4, 1990 / Rules and Regulations 35991

year and intervening updates creates a
higher target amount.

• Effective for discharges occurring
on or after January 18.1990, a hospital
created by the merger or consolidation
of two or more hospitals or hospital
campuses eligible to receive interim
periodic payments is also eligible to
receive periodic interim payments.

C. Summary of April20, 1990 Final Rule
With Comment

On April 20,1990, we published a final
rule with comment (55 FR 15150) to
implement those portions of sections
6003, 6011, 6015, and 6205 of Public Law
101-239 that affect Medicare payments
to hospitals and that were, in general,
effective April 1,1990. These changes
provided for the following:

• For discharges occurring on or after
April 1,1990, hospitals located in rural
areas with more than 100 beds, or those
that are classified as sole community
hospitals, can now qualify for a
disproportionate share adjustment if the
hospital has a disproportionate patient
percentage of at least 30 percent. In
addition, the disproportionate share
payment adjustments for qualifying
hospitals are increased.

• For cost reporting periods beginning
on or after April 1,1990, the payment
methodology for sole community
hospitals is revised. In addition, the
change made in the September 1,1989
prospective payment system final rule
(54 FR 36480) that went into effect on
October 1,1989 to allow any rural
hospital to qualify as a sole community
hospital if it is more than 35 miles from
another hospital is ratified.

• For cost reporting periods beginning
on or after April 1,1990 and ending on
or before March 31,1993, a special
payment method under the prospective
payment system for Medicare-
dependent small rural hospitals is
established.

• For discharges occurring on or after
April 1,1990, the wage index applicable
to rural counties whose hospitals are
deemed urban is revised.

• For dicharges occurring on or after
June 19,1990 and before December 19.
1991, prospective payment hospitals
receive an additional payment for the
cost of administering blood clotting
factors to hemophiliacs who are hospital
inpatients.

• For cost reporting periods beginning
on or after April 1,1990, excluded
hospitals and units may be assigned a
new base period for purposes of the
rate-of-increase limits if it would be
more representative of the reasonable
and necessary costs of inpatient
services.

• For cost reporting periods beginning
on or after December 19,1989 and
before the later of October 1,1990 or the
date the Secretary issues new
regulations concerning payment for
nursing and allied health education, the
costs incurred by hospitals that meet
certain criteria for training nursing
students enrolled in a hospital-based
nursing school are to be paid on the
basis of reasonable cost.

In addition, in the April 20,1990 final
rule with comment, we responded to
comments received on the September 30,
1988 prospective payment system Final
rule with comment (53 FR 38476) with
respect to the implementation of two
provisions of the Medicare Catastrophic
Coverage Act of 1988 (Pub. L 100-360)
concerning adjustments to the rates,
weights, and outlier thresholds
applicable to prospective payment
hospitals and the target amounts
applicable to hospitals and units
excluded from the prospective payment
system due to the elimination of the day
limitation on covered inpatient hospital
days. We also discussed changes in law
made by the Family Support Act of 1988
(Pub. L. 100-485), which clarified the
criteria for adjusting target amounts and
changed the date for implementing that
provision, as well as the termination of
these catastrophic provisions effective
January 1,1990 because of the
enactment of the Medicare Catastrophic
Coverage Repeal Act of 1989 (Pub. L.
101-234). The comment period for the
April 26 ,1990 final rule with comment
period ended on June 19,1990. In section
II of the preamble of this Final rule, we
are responding to the comments
received concerning the April 20,1990
final rule.

D. Summary of the Provisions of the
May 9, 1990 Proposed Rule

On May 9.1990, we published a
proposed rule in the Federal Register (55
FR 19426) to further amend the
prospective payment system as follows:

• We proposed changes for FY 1991
DRG classifications and weighting
factors as required by section
1886(d)(4)(C) of the Act. We must adjust
the DRG classifications and weighting
factors at least annually.

• We proposed to update the wage
index by basing it entirely on 1988 wage
data.

• We proposed to recompute the
hospital market basket, which reflects
hospital changes in the purchase of
goods and services used to furnish care,
using data from a more recent base year
(that is, “rebasing" or “reweighting" the
market basket) and to revise the market
basket to reflect the use of certain newly
available price proxies for monitoring

the rate of inflation in the market
basket. We also proposed to establish a
separate market basket for hospitals
and units excluded from the prospective
payment system.

• We discussed several current
provisions of the regulations in 42 CFR
part 412 and set forth certain proposed
changes concerning—

—Elimination of the regional floor
—Sole community hospital criteria;

—Cancer hospitals;

—Rural referral center criteria;

—Indirect medical education costs; and
—Offset for physician assistant services.

• In the Addendum to the proposed
rule, we set forth changes to the
amounts and factors for determining the
FY 1991 prospective payment rates. We
also proposed new target rate
percentages for determining the rate-of-
increase limits for cost reporting periods
beginning in FY 1991 for hospitals and
hospital units excluded from the
prospective payment system.

• In appendix A of the proposed rule,
we set forth an analysis of the impact
that the proposed changes described in
the rule would have on affected entities.

• In appendix B of the proposed rule,
we provided a technical discussion of
the data sources used to estimate the
market basket relative weights and the
choice of price proxies.

• In appendix C of the proposed rule
we included our initial estimate of an
update factor for FY 1991 for both
prospective payment hospitals and
hospitals excluded from the prospective
payment system, as required by section
1886(e)(3)(B) of the Act.

• Appendix D of the proposed rule
provided our recommendation of the
appropriate percentage change for FY
1991, as required by sections 1886 (e)(4)
and (e)(5) of the Act, in the—

• Large urban, other urban, and rural
average standardized amounts for inpatient
hospital services paid for under the
prospective payment system; and

• Target rate-of-increase limits to the
allowable operating costs of inpatient
hospital services furnished by hospitals and
hospital units excluded from the prospective
payment system.

In addition, the proposed rule
discussed in detail the March 1,1990
recommendations made by the
Prospective Payment Assessment
Commission (ProPAC). ProPAC is
directed by section 1886(d)(4)(D) of the
Act to make recommendations to the
Secretary with respect to adjustments to
the DRG classifications and weighting
factors and to report to Congress with
respect to its evaluation of any
adjustments made by the Secretary.

35992 Federal Register / Vol. 55, No. 171 / Tuesday. September 4. 1990 / Rules and Regulations

ProPAC is also directed, by the
provisions of sections 1886(e)(2) and
(e)(3) of the Act, to make
recommendations to the Secretary on
the appropriate percentage change
factor to be used in updating the
average standardized amounts
beginning with FY 1986 and thereafter.

We printed ProPAC’s report, which
includes its recommendations, as
Appendix E to the proposed rule (55 FR
19426).

Set forth below in sections III through
VI and VIII of this preamble, the
Addendum to this final rule, and
appendixes A and C are detailed
discussions of the contents of the May 9,
1990 proposed rule, the public comments
received in response to that proposal,
and responses to those comments as
well as any changes we will be making.

Also, in section VII of the preamble of
this Final rule we clarify the
documentation requirements necessary
to support the cost allocation of teaching
physicians and the allowability of costs
for rotating residents in determining
payment for the direct costs of approved
graduate medical education programs.
This clarification is being made as a
result of the September 29,1989 Final
rule that made changes in Medicare
policy concerning payment for the direct
graduate medical education costs of
providers associated with approved
residency programs in medicine,
osteopathy, dentistry, and podiatry.
These changes implemented section
1886(h) of the Act, which was added by
section 9202 of the Consolidated
Omnibus Budget Reconciliation Act of
1985 (Pub. L. 99-272) and amended by
section 9314 of the Omnibus Budget
Reconciliation Act of 1986 (Pub. L. 99-
509).

E. Number and Types of Public
Comments

A total of 315 items of correspondence
containing comments on the May 9,1990
proposed rule were received timely. The
main areas of concern addressed by
commenters were the following:

• The changes in DRG classification
and weighting factors and lack of any
proposal to increase payment for
cochlear implants or inflatable penile
implants.

• The proposal to base the wage
index on 1988 data only and to mitigate
the effects of a large change in a wage
index value.

• The changes in the market basket
index.

• The revision in the interns and
residents counting methodology for
determining the indirect medical
education adjustment.

• The proposal to offset the charges
for services of physician assistants from
hospital DRG payments.

II. Discussion of Public Comments
Concerning the April 20,1990 Final Rule
With Comment

A number of letters were received
timely containing comments on the
provisions in Public Law 101-239
included in the April 20,1990 final rule
with comments.

A majority of the commenters raised
issues concerning the conditions under
which we would approve the
assignment of a new base period.
Several other commenters raised issues
concerning recognition and payment for
hospital-based nursing school costs
under Medicare. Four commenters had
concerns relating to the initial
determinations for Medicare payments
made to sole community hospitals and
Medicare dependent, small rural
hospitals. Four comments were received
that raised issues concerning
disproportionate share adjustments and
two commenters questioned the pricing
of blood clotting factors for hemophilia.
However, in general, most of the
commenters believe the regulatory
changes contained in the rule were
straightforward and reflected the
statutory language and Congressional
intent.

A. Disproportionate Share Adjustment
(§412.102)

Section 1886(d)(5)(F) of the Act
provides for additional payments to
prospective payment hospitals that
serve a disproportionate share of low-
income patients. Under section
1886(d)(5)(F)(v) of the Act, and under
§ 412.106(b) of the regulations for
discharges occurring prior to April 1,
1990, a hospital qualifies for a
disproportionate share adjustment if
during the hospital’s cost reporting
period, the hospital has a
disproportionate patient percentage that
is at least equal to—

• 15 percent for an urban hospital
with 100 or more beds or a rural hospital
with 500 or more beds;

• 40 percent for an urban hospital
with fewer than 100 beds;

• 45 percent for a rural hospital with
fewer than 500 beds.

In addition, a hospital can qualify for
a disproportionate share adjustment as
defined under § 412.106(c)(2) if the
hospital has 100 or more beds, is located
in an urban area, and receives more
than 30 percent of net inpatient revenues
from State and local government sources
for the care of indigent patients not
eligible for Medicare or Medicaid.

Section 6003(c)(2) of Public Law 101-
239 added an additional qualifying
methodology under section
1886(d)(F)(5)(v) of the Act for certain
rural hospitals beginning with
discharges occurring on or after April 1,
1990. That is, if a hospital located in a
rural area has more than 100 beds, or is
classified as a sole community hospital
(SCH), and has a disproportionate
patient percentage of at least 30 percent
during its cost reporting period, the
hospital will qualify for a
disproportionate share adjustment.

Sections 1886(d)(5)(F) (iii) and (iv) of
the Act define the allowable
disproportionate share adjustments that
are added to the Federal portion of
Medicare prospective payments for
those hospitals described in sections
1886(d)(5)(F) (i) and (v) of the Act that
meet the disproportionate share
qualifications. For discharges occurring
prior to April 1,1990, those adjustments
are—

• 2.5 percent plus one-half of the
difference between the hospital’s
disproportionate patient percentage and
15 percent for urban hospitals with 100
or more beds and rural hospitals with
500 or more beds;

• 5 percent for urban hospitals with
fewer than 100 beds;

• 4 percent for rural hospitals with
fewer than 500 beds; and

• 25 percent for urban hospitals with
100 or more beds receiving more than 30
percent of net inpatient revenues from
State and local government sources for
the care of indigent patients.

In addition, sections 6003(c) (2) and (3)
of Public Law 101-239 amended section
1886(d)(5)(F) of the Act, which concerns
the payment methodology for
determining disproportionate share
payment adjustments effective with
discharges occurring on or after April 1,
1990. These changes provided for the
following:

• The disproportionate share payment
adjustment factor was increased from 25
to 30 percent for a hospital that qualifies
for a disproportionate share adjustment
under § 412.108(c)(2), that is, the hospital
has 100 or more beds, is located in an
urban area, and receives more than 30
percent of net inpatient revenues from
State and local government sources for
the care of indigent patients not eligible
for Medicare or Medicaid.

• A hospital located in an urban area
and having 100 or more beds, or a
hospital located in a rural area and
having 500 or more beds, with a
disproportionate patient percentage of
greater than 20.2 percent receives a
disproportionate share adjustment that
will increase the DRG revenue by 5.62

Federal Register / Vol. 55, No. 171 / Tuesday. September 4, 1990 / Rules and Regulations J)5993

percent plus 65 percent of the difference
between its disproportionate patient
percentage and 20.2 percent. If the
hospital’s disproportionate patient
percentage is less than 20.2 percent, the
hospital’s DRG revenue is increased by
2.5 percent plus 60 percent of the
difference between its disproportionate
patient percentage and 15 percent.

• A hospital located in a rural area
that is classified as both a rural referral
center and an SCH receives a
disproportionate share adjustment that
increases the Federal portion of the
hospital’s DRG revenue by the greater of
10 percent, or 4 percent plus 60 percent
of the difference between the hospital’s
disproportionate patient percentage and
30 percent.

• A hospital located in a rural area
and classified as a rural referral center
receives a disproportionate share
adjustment that increases the hospital’s
DRG revenue by 4 percent plus 60
percent of the difference between its
disproportionate patient percentage and
30 percent.

• A hospital located in a rural area
and classified as an SCH receives a
disproportionate share adjustment that
increases the Federal portion of the
hospital’s DRG revenue by 10 percent.

For a hospital with fewer than 100
beds located in an urban area, the
disproportionate share adjustment
continues to be 5 percent. For a hospital
with fewer than 500 beds located in a
rural area, which is not classified as a
rural referral center or an SCH, the
disproportionate share adjustment
continues to be 4 percent.

Comment: One commenter stated that
Congressional intent was not adhered to
concerning the disproportionate share
adjustment for hospitals that are
designated either as SCHs or as SCHs
and rural referral centers. The April 20.
1990 final rule with comment stated that
the corresponding disproportionate
share payment percentage would be
applied to “the Federal portion of the
hospital’s DRG revenue.” This
commenter asserted that the statutory
language does not restrict the applicable
payment to the Federal portion of the
DRG payment and that it should also
apply to the hospital-specific portion of
an SCH’s payment rate.

Response: We do not agree with the
commenter’s interpretation of the
statute. Section 1886(d)(5)(F)(ii) of the
Act provides that the amount of any
additional payment is determined by
multiplying the total amount payable
based on the Federal rate provided for
in section 1886(d)(l)(A)(iii) of the Act by
the disproportionate share adjustment
percentage. There is no provision for

paying the disproportionate share
adjustment on the hospital-specific rate.

For cost reporting periods beginning
before April 1,1990. SCHs are paid a
blended rate based on 75 percent of the
hospital-specific rate and 25 percent of
the Federal regional rate. For cost
reporting periods beginning on or after
April 1,1990, as provided in section
1886(d)(5)(D)(i) of the Act, an SCH is
paid based on whichever of the
following three rates yields the greatest
aggregate payment for the cost reporting
period:

• The Federal national rate applicable
to the hospital.

• The updated hospital-specific rate
based on FY 1982 cost per discharge.

• The updated hospital-specific rate
based on FY 1987 cost per discharge.

The disproportionate share
adjustment only applies to the Federal
rate because it is recognized that a
federally-based payment may not take
the additional costs associated with
treating a disproportionate share of low
income patients into consideration,
since it is based on a national
standardized amount. On the other
hand, a hospital’s hospital-specific rate
(HSR) is based on the historical costs of
the individual hospital and, therefore,
already reflects the additional costs
incurred by the hospital for treating a
disproportionate share of low income
patients. Accordingly, it is appropriate
that the disproportionate share
adjustment be applied only to the
Federal portion of the hospital’s DRG
revenue. Therefore. SCHs that are still
receiving payment based on the blended
rate will receive a disproportionate
share adjustment only on the 25 percent
Federal portion. If an SCH is receiving
payment based on the revised payment
methodology, the disproportionate share
adjustment will be applied only to the
Federal national rate in determining
which of the three rates yields the
highest aggregate payment amount.

Comment: We received one comment
from a fiscal intermediary concerning
the impact that the revised
disproportionate share payment formula
would have on some hospitals. The
intermediary noted that five of the
hospitals it services would receive
disproportionate share payments of
between 50 and 63 percent of its DRB-
based payments.

This commenter felt that HCFA
should explain the rationale for such
high disproportionate share adjustments
since it appears that qualifying criteria
and payment adjustments under this
provision were arrived at in an arbitrary
fashion.

Response: Under section 9105(a) of
the Consolidated Omnibus Budget

Reconciliation Act of 1985 (Pub. L. 99-
272). Congress added an explicit
adjustment for hospitals with a
disproportionate share of low-income
patients, effective for discharges on or
after May 1,1986. The qualifying criteria
were also delineated by Congress. This
provision was based, in part, on the
analyses conducted by the
Congressional Budget Office (CBO) that
indicated that urban hospitals with 100
or more beds and disproportionate
patient share percentages of 15 percent
or higher incurred higher Medicare costs
per case than other hospitals. CBO did
not, however, find evidence to support a
disproportionate share adjustment for
urban hospitals with fewer than 100
beds or for rural hospitals. Nevertheless,
Congress did provide an adjustment for
those groups of hospitals using
significantly higher qualifying criteria
than for urban hospitals with 100 beds
or more. In addition, section 6003(c)(2)
of Pub. L. 101-239 expanded the
qualifying criteria and increased the
payment adjustments for some aspects
of the disproportionate share adjustment
effective with discharges occurring on or
after April 1,1990.

Comment: One commenter stated that
the disproportionate share adjustment
under Medicare should be expanded to
include qualifying methodologies for
psychiatric hospitals, which are
excluded from the prospective payment
system.

Response: Section 1886(d)(5)(F) of the
Act explicitly provides for the
disproportionate share adjustment to
payments made to hospitals under the
prospective payment system. There is no
provision for a disproportionate share
adjustment to payments made to
hospitals that are excluded from the
prospective payment system nor do we
believe that such an adjustment would
be appropriate. Subject to the rate of
increase limit, hospitals that are
excluded from the prospective payment
system are paid for the reasonable costs
that they incur in furnishing services to
Medicare beneficiaries. To the extent
that they incur generally higher costs for
treating a disproportionate share of low
income patients, these higher costs are
reflected in the reasonable cost
determination. An explicit
disproportionate share adjustment
would result in program payments in
excess of the reasonable costs incurred
for Medicare beneficiaries. We believe
that this would violate the basic
principle set forth in section
1861(v)(l)(A) of the Act that the costs of
non-Medicare patients should not be
borne by the Medicare program.

35994^^Federal^egister^/ Vol. 55, No. 171 / Tuesday, September 4, 1990 / Rules and Regulations

Comment: One commenter believes
that the disproportionate share
adjustment calculation should be
expanded to include days that Medicare
patients utilize health maintenance
organizations (HMOs) since these
beneficiaries are entitled to Part A
benefits.

Response: Based on the language of
section 1686(d)(5)(F)(vi) of the Act,
which states that the disproportionate
share adjustment computation should
include "patients who were entitled to
benefits under Part A", we believe it is
appropriate to include the days
associated with Medicare patients who
receive care at a qualified HMO. Prior to
December 1,1987, we were not able to
isolate the days of care associated with
Medicare patients in HMOs and,
therefore, were unable to fold this
number into the calculation. However,
as of December 1,1987, a field was
included on the Medicare Provider
Analysis and Review (MEDPAR) file
that allows us to isolate those HMO
days that are associated with Medicare
patients. Therefore, since that time, we
have been including HMO days in SSI/
Medicare percentage.

B. Payments to Sole Community
Hospitals and Medicare-Dependent,
Small Rural Hospitals (§§412.92 and
412.108)

Under the prospective payment
system, special payment protections are
provided to SCHs. An SCH is a hospital
that, by reason of factors such as
isolated location, weather conditions,
travel conditions, or absence of other
hospitals, is the sole source of inpatient
hospital services reasonably available
to Medicare beneficiaries. The
regulations that set forth the criteria that
a hospital must meet to be classified as
an SCH and the special payment
adjustments available to those hospitals
are at 5 412.92.

Prior to enactment of Public Law 101-
239. section 1886(d)(5)(C)(ii) of the Act
provided that SCHs be paid a blended
rate based on 75 percent of the hospital-
specific rate and 25 percent of the
Federal regional rate. In addition, for
cost reporting periods beginning before
October 1,1990, an SCH is eligible for a
payment adjustment if, for reasons
beyond its control, it experiences a
decline in volume of greater than 5
percent compared to its preceding cost
reporting period. (This adjustment is
also available to a hoBpita! that could
qualify as an SCH but chooses not to be
paid as an SCH.)

Section 6003(e) (1) and (2) of Public
Law 101-239, which amended section
1886(d)(5) of the Act, revised both the
qualifying criteria and payment

methodology for SCHs. However,
section 6003(e)(3) of Public Law 101-239
specifically states that any hospital
classified as an SCH on December 19,

1989 will continue to be so classified
regardless of whether it meets the
revised criteria resulting from changes
made in implementing section 6003(e)(1)
of Public Law 101-239.

Section 1886(d)(5)(D)(iii)(I) of the Act
incorporates the mileage standard that
was established by regulation effective
October 1,1989 (54 FR 36480; September
1,1989). Thus, Congress has ratified our
policy that a hospital can qualify for
SCH status if it is more than 35 road
miles from another hospital. Since this
policy had already been incorporated
into the regulations at 5412.92(a)(1), we
made no further change in the April 20,

1990 final rule with comment.

Section 6003(e) of Public Law 101-239

also revised the payment methodology
for hospitals classified as SCHs
effective with cost reporting periods
beginning on or after April 1,1990. As of
that date, as provided in section
1886(d)(5)(D)(i) of the Act. SCHs will be
paid based on whichever of the
following rates yields the greatest
aggregate payment for the cost reporting
period: the Federal national rate
applicable to the hospital, the updated
hospital-specific rate based on FY 1982
cost per discharge, or the updated
hospital-specific rate based on FY 1987
cost per discharge.

In the April 20,1990 final rule with
comment, we stated that the SCHs
fiscal intermediary will determine for
each cost reporting period which of the
payment options will yield the highest
payment rate. Payments will
automatically be made at the highest
rate based on the best data available at
the time of the intermediary’s
determination. However, it may not be
possible for the fiscal intermediary to
determine in advance precisely which of
the rates will yield the highest aggregate
payment for the year. This is because, in
many instances, the hospital’s FY 1987
cost report had not yet been audited
and, in all instances, it was not possible
to forecast the October 1,1990 update
factor for the Federal rates, outlier
payments, the amount of the
disproportionate share adjustment, or
the indirect medical education
adjustment, all of which are applicable
only to payment based on the Federal
rate. Therefore, the intermediary will
make its determination based on what
appears to yield the highest payment
amount.

We provided that a final adjustment
be made at the close of the hospital’s
cost reporting period to determine
precisely which of the three payment

rates yielded the highest payment to the
hospital. The settlement will take into
account all of the adjustments described
above. If a hospital disagrees with the
intermediary’s determination regarding
the final amount of program payment to
which it is entitled under this provision,
it has the right to appeal the
intermediary's decision in accordance
with the criteria in subpart R of part 405
of the regulations, which concern
provider payment determinations and
appeals.

The April 20,1990 document
described the methodology we will use
to calculate the hospital-specific rate
based on an FY 1987 cost reporting
period. We stated that FY 1987 cost
reporting periods are those 12-month or
longer cost reporting periods ending on
or after September 30,1987 and before
September 30,1988. If the hospital's last
cost reporting period ending before
September 30,1988 is for a period of less
than 12 months, we use the hospital's
most recent 12-month or longer cost
reporting period ending before the short
period report.

The final rule with comment provided
that if a hospital has no cost reporting
period beginning in FY 1987, it will not
have a hospital-specific rate based on
FY 1987. The hospital will not be
allowed to substitute any other base
period for the FY 1987 base period.

We stated that for each SCH, the
intermediary will calculate an FY 1987
hospital-specific rate as follows:

• Determine the hospital's total
allowable Medicare inpatient operating
cost, as stated on the FY 1987 cost
report.

• Divide the total Medicare inpatient
operating cost by the number of
Medicare discharges in the cost
reporting period to determine the FY
1987 base-period cost per case.

• Divide the base-period cost per case
by the hospital's case-mix index
applicable to the FY 1987 cost reporting
period.

Each SCH will be informed of its FY
1987 hospital-specific rate within 180
days of the start of its cost reporting
period beginning on or after April 1,1990
(the first cost reporting period to which
the new payment methodology applies).
We also provided that, based on the
decision of the U.S. Court of Appeals for
the District of Columbia circuit in
Georgetown University Hospital v.
Bowen, 862 F. 2d 323 (D.C. Cir., 1988),
any adjustments made to a hospital’s FY
1987 hospital-specific rate due to a
favorable appeal would be made
retroactively to the time of the
intermediary’s initial determination. We
added a new § 412.75 to describe

Federal Register / Vol. 55. No. 171 / Tuesday. September 4, 1990 / Rules and Regulations 35995

calculating the hospital-specific rate
based on a FY 1987 base period.

In addition to the changes described
above, a new section 1886(d)(5)(D) of the
Act deleted the sunset date on the 5
percent volume decline adjustment, thus
allowing SCHs to receive the adjustment
indefinitely. We amended § 412.92(e)
and (f) to reflect this change.

Section 6003(f) of Public Law 101-239,
which added a new section
1886(d)(5)(G) of the Act, created a new
category of hospitals eligible for a
special payment adjustment under the
prospective payment system. The
adjustment is limited to Medicare-
dependent, small rural hospitals (MDHs)
and is effective for cost reporting
periods beginning on or after April 1 ,

1990 and ending on or before March 31,
1993. Section 1886(d)(5)(G)(iii) of the Act
defines an MDH as any hospital that
meets all of the following criteria:

• The hospital is located in a rural
area.

• The hospital has 100 or fewer beds.

• The hospital is not classified as an
SCH (as defined at § 412.92) at the same
time that it is receiving payment under
this provision.

• In the hospital’s cost reporting
period that began during FY 1987, not
less than 60 percent of its inpatient days
or discharges were attributable to
inpatients entitled to Medicare Part A
benefits.

For purposes of determining a
hospital’s bed size, we are using the
same definition that is currently used for
determining number of beds to calculate
the indirect medical education
adjustment, the disproportionate share
adjustment, and to detemine rural
referral center eligibility. This definition,
which is set forth at 5412.118(b), states
that the number of beds in a hospital is
determined by counting the number of
available bed days during the hospital's
cost reporting period, not including beds
assigned to newborns, custodial care,
and excluded distinct part units, and
dividing that number by the number of
days in the cost reporting period.

For determining whether at least 60
percent of the hospital’s inpatient days
or discharges were attributable to
Medicare Part A beneficiaries, we
provided that days and discharges are
counted from the hospital’s 12 -month or
longer cost reporting period that ended
on or after September 30,1987 and
before September 30,1988. Only days
and discharges from acute care inpatient
hospital stays in the area of the hospital
subject to the prospective payment
system are included.

If the hospital’s last cost reporting
period ending before September 30,1988
is for a period that is less than 12

months, we provided that days and
discharges are to be counted for the
hospital’s most recent 12 -month or
longer cost reporting period ending
before the short period report. We also
provided that days and discharges from
swing beds are counted if the discharges
were for acute care inpatient hospital
stays. The Medicare count of days and
discharges include only those days and
inpatient stays for which benefits were
payable under part A.

To not disadvantage hospitals that
receive payment from a health
maintenance organization (HMO) or a
competitive medical plan (CMP) for
inpatient care provided to Medicare part
A beneficiaries enrolled with the HMO
or CMP, we provided that the days and
discharges for those stays are counted.
These days and discharges do not
appear on the hospital’s cost report as
Medicare days and discharges. Thus, the
hospital should notify its intermediary
and provide documentary evidence to
support the number of days and
discharges attributable to Medicare
HMO or CMP enrollees that should be
included in the intermediary’s
determination of the hospital’s Medicare
utilization.

As set forth in section 1886(d)(5)(G)(i)
of the Act, hospitals meeting the above
criteria are paid using the same
methodology applicable to SCHs, that is,
based on whichever of the following
rates yields the greatest aggregate
payment for the cost reporting period:

• The national Federal rate applicable
to the hospital;

• The updated hospital-specific rate
using FY 1982 cost per discharge; or

• The updated hospital-specific rate
using FY 1987 cost per discharge.

We explained that hospitals do not
need to take any action to qualify for
this adjustment because the fiscal
intermediary will determine for each
cost reporting period which hospitals
meet the criteria to qualify as MDHs
prior to the start of the hospital’s first
cost reporting period beginning on or
after April 1,1990. In addition, the
intermediary determines for each cost
reporting period which of the payment
options yields the highest rate of
payment to a hospital that qualifies as
an MDH in the same manner as
described above for SCHS.

At the time the year-end settlement is
made for purposes of determining which
of the three payment rates yielded the
highest payment to the hospital, an
MDH’s cost report is also reviewed to
ensure that it meets all the qualifying
criteria, that is, that it is located in a
rural area, that its bed count for the cost
reporting period was 100 or fewer beds,
and that it did not qualify as an SCH at

the same time that it was receiving
payments as an MDH.

For purposes of counting beds, the
most recently submitted C09t report is
used by the fiscal intermediary to
determine whether a hospital meets this
criterion provisionally. A final
determination i9 made each year based
on its average number of beds during
the cost reporting period. If a hospital’s
number of beds has changed since its
most recent cost report was submitted
and it believes it meets the criteria to
qualify for this adjustment, the hospital
must notify its intermediary and submit
documentary evidence that its bed count
is not above 100 beds.

As discussed above, we provided that
the intermediary uses the hospital’s FY
1987 cost report to determine if it meets
the 60 percent Medicare dependency
requirement on the basis of either days
or discharges. If a hospital believes that
the data in its cost report does not
accurately reflect its Medicare
utilization, it must notify its
intermediary and submit verifiable
documentation to prove that it meets the
60 percent Medicare-patient utilization
requirement.

Whether the intermediary determines
a hospital’s classification as an MDH
based on its own data or after a
hospital’s request, the classification is
effective with the start of the cost
reporting period in which the hospital
first meets all the qualifying criteria
effective with the first cost reporting
period that begins on or after April 1,
1990.

Each MDH will be informed of its FY
1987-based hospital-specific rate within
180 days after it qualifies as an MDH.
That is, any hospital that the
intermediary identifies as qualifying for
MDH status will be notified of its
hospital-specific rate within 180 days
after the start of its cost reporting period
beginning on or after April 1,1990.
However, any hospital that is identified
as an MDH by the intermediary after the
start of its cost reporting period will be
notified of its hospital-specific rate
within 180 days after the intermediary
determines that it meets the qualifying
criteria.

Since we implemented the provisions
of sections 1886(d)(5) (D) and (G)
concerning the special payment
provisions for SCHs and MDHs, we
have discovered a special circumstance
that should be taken into account in
calculating the FY 1987 hospital-specific
rate for these hospitals. Effective with
cost reporting periods beginning on or
after October 1 , 1987, distinct part
alcohol/drug units were no longer
excluded from the prospective payment

35996__£gderal^Refflster / Vol. 55, No. 171 / Tuesday, September 4, 1990 / Rules and Regulations

system. Therefore, the costs associated
with such a unit would not be included
in an SCH's or MDH's inpatient
operating costs for its FY 1987 cost
reporting period, but would be included
in those costs for all succeeding cost
reporting periods.

So that an SCH or MDH that had an
excluded alcohol/drug unit during its FY
1987 cost reporting period will not be
disadvantaged, we will allow such a
hospital to receive an adjustment to its
FY 1987 hospital-specific rate to account
for the operating costs associated with
that distinct part unit when it was made
subject to the prospective payment
system as part of the SCH or MDH.
Hospitals that believe they should
receive this adjustment should contact
their fiscal intermediary.

Comment: We received many
comments regarding how swing bed
days should be counted in determining
whether a hospital was at least 60
percent Medicare-dependent during its
cost reporting period that began during
FY 1987. Several commenters noted that
although the preamble to the April 20.
1990 final rule with comment period
stated that days and discharges from
swing beds will be counted if the
discharges were for acute care inpatient
hospital stays, the regulations text at
§ 412.108(a)(2) stated that for purpose of
determining a hospital’s status, “only
days and discharges from acute care
impatient stays are counted, including
days and discharges from swing beds.”
Some commenters concluded that the
language of the regulation implied that
days and discharge from a skilled
nursing facility (SNF) level of care could
be counted in determining Medicare
dependency.

Response: The word “hospital” was
inadvertently omitted in preparing the
regulations text. Under Medicare, there
are two types of covered care that can
be provided in a swing bed: acute
inpatient hospital care and SNF care.
Only days and discharges for acute
inpatient hospital care are to be counted
in determining whether a hospital was
at least 60 percent Medicare-dependent
during its cost reporting period
beginning during FY 1987. SNF days and
discharges are not to be included in the
count. The MDH provision applies to
hospital services only and we do not
believe it would be equitable to include
other than acute inpatient hospital
services in determining whether a
hospital qualifies for the provision. We
have revised § 412.108(a)(2) to clarify
our policy.

Comment: Several commenters asked
whether days and discharges for
Medicare beneficiaries could be
included in determining Medicare-

dependency where the care would have
been covered by Medicare, except that
Medicare was the secondary payor and
the primary payor paid for the entire
stay. We were asked specifically about
how to treat veterans benefits and
automobile accident policy payments. In
addition, we were asked if part A
benefits had been exhausted, could part
B-only stays be counted, and whether
patient transfers could be counted 8s
discharges.

Response: Section

1886(d)(5)(G)(iii)(IV) of the Act states
that Medicare-dependency is measured
by whether "not less than 60 percent of
its inpatient days or discharges during
the cost reporting period beginning in
fiscal year 1987 were attributable to
inpatients entitled to benefits under part
A.” The scope of benefits to which an
individual is entitled to payment under
part A set forth in section 1812 of the
Act with respect to inpatient hospital
services, are limited to 90 days during
each benefit period. An additional
lifetime reserve of 60 days may be
drawn upon when an individual exceeds
90 days in a benefit period. Entitlement
to payment under part A ceases after
the beneficiary has used 90 days in a
benefit period and has either exhausted
the lifetime reserve days or elected not
to use available lifetime reserve days.

The secondary payment provisions
under section 1862(b) of the Act do not
affect an individual's entitlement to part
A benefits but rather the amount of
payment that will be made by Medicare
for services furnished to a beneficiary.
The Medicare payment amount can
range all the way from zero up to the full
DRG amount, depending upon the
primary payer’s payment. However,
while Medicare's payment (and the days
of utilization counted for benefit period
purposes) may be proportionately less
than they would be if Medicare were the
primary payer, the beneficiary is still
entitled to Medicare benefits, and the
services furnished to him or her, which
are covered under section 1812 of the
Act. Therefore, we believe the days and
discharges from such a stay should be
included in determining a hospital’s
Medicare dependency for 1987.

We do not believe days and
discharges for part B—only stays should
be counted. Again, for the MDH
provision, section 1886(d)(5)(G)(iii)(IV)
of the Act states that Medicare
dependency is limited to consideration
of those inpatients entitled to part A
benefits. Since patients who have
exhausted their part A benefits are no
longer entitled to payment under part A,
we do not believe such stays should be
counted. Of course, if the patient was a
hospital inpatient at a prospective

payment hospital at the time part A
benefits were exhausted, that stay is
covered and will count as one discharge.
If the benefits are exhausted prior to the
stay going into outlier status, all the
days of the stay are covered and
counted. If the benefits are exhausted
during the outlier portion of the stay,
only those days prior to exhaustion of
the part A benefit are counted.

Under § 412.4, a transfer to another
acute care hospital is not considered a
discharge for DRG payment purposes.
However, for other purposes, a
discharge is defined as the formal
release of a patient, including death, but
excluding newborns and patients who
are dead on arrival. For purposes of
determining whether a hospital was at
least 60 percent Medicare-dependent,
we believe a patient transfer should be
counted as a discharge regardless of
whether the patient was transferred to
another acute care hospital, to an area
of the hospital not covered under the
prospective payment system, or to a less
intense level of care. The days for the
acute care inpatient hospital portion of
the stay should also, of course, be
counted in calculating a hospital's
Medicare-dependency based on days.
The definition of discharges for
purposes of the 60-percent Medicare-
dependency test is consistent with our
definition of discharges for cost
reporting purposes and for purposes of
determining the hospital-specific rate.

We note that the April 20,1990 final rule
with comment period did not explicitly
discuss how transfers will be counted in
determining the FY 1987 base period
cost per discharge. As was the case with
the determination of the FY 1982 base
period cost per discharge, all transfers
will count as discharges in calculating
the hospital's FY 1987 Medicare
allowable cost per discharge. We are
clarifying $ 412.75(b) to indicate that a
transfer will count as a discharge in
calculating the hospital's base period
cost per dischaxge. A similar change has
been made in ( 412.108(a)(2) for
purposes of determining whether the
hospital meets the 60-percent Medicare
dependency test.

Comment: One commenter suggested
that a fiscal intermediary can more
easily identify HMO and CMP enrollees
than can a hospital and the commenter
recommended that for purposes of
identifying days and discharges for
these beneficiaries for MDH purposes,
the intermediary should be responsible
for automatically including days and
discharges in its calculations.

Response: We do not agree that
identification of HMO and CMP
enrollees should be the responsibility of

Federal Register / Vol. 55. No. 171 / Tuesday. September 4. 1990 / Rules and Regulations 35997

the fiscal intermediary. Prior to
December 1,1967, hospitals were not
required to submit bills for inpatient
services furnished to Medicare
beneficiaries who were enrolled in an
HMO; therefore, no data are available
on the days and discharges attributable
to such beneficiaries for portions of FY
1987 cost reporting periods occurring
before December 1,1987. Although
hospitals have submitted no-pay bills
for Medicare beneficiaries who are
HMO enrollees since December 1,1987,
information on these beneficiaries is not
retained separately in intermediary
records from other no-pay bills. The
intermediary would need the
beneficiary’s health insurance claim
number in order to be able to identify an
HMO enrollee. Consequently, the
hospital is generally in a better position
to identify HMO and CMP enrollees
than the intermediary. However, if a
particular hospital is experiencing
difficulty in identifying the appropriate
cases and believes the identification of
such enrollees would have an effect on
its MDH status, it may contact its
intermediary to determine if the
intermediary can provide assistance to
the hospital.

Comment' Section

1886(d) (5)(G)(iii) (IV) of the Act defined
an MDH as a hospital that among other
criteria was at least 60 percent
Medicare-dependent, by days or
discharges, “* * * during the cost
reporting period beginning in fiscal year
1987 • * (Emphasis added.) The
regulation at $ 412.108{a)(iii) stated that
the 60 percent Medicare-dependency
must have been for the “* * * hospital’s
12 month or longer cost reporting period
ending on or after September 30,1987
and before September 30,1988 # A
commenter asked whether a hospital
that had a shorter or a longer cost
reporting period that began during FY
1987 but that did not end after
September 30,1987 and before
September 30,1988 could be considered
eligible for the MDH provision. The
commenter also asked whether the same
shorter or longer period cost report
could be used to calculate the FY 1987
hospital-specific amount.

Response: We recognize that the
definition given in the regulation could
cause some difficulty for hospitals that
may have changed the end of their fiscal
year or may have closed and reopened
during the period in question. For this
reason, we are expanding our definition
somewhat. If a hospital does not have a
12 -month cost reporting period ending
on or after September 30,1987 and
before September 30,1988, then the
fiscal intermediary should determine if

the hospital had a cost reporting period
that began during FY 1987. This revision
in the definition may permit a hospital
to qualify for MDH status that would
have been denied under our prior
definition.

If the cost reporting period beginning
in FY 1987 is for less than 12 months, the
intermediary must “back up*’ to the most
recent 12-month period ending prior to
the short cost reporting period to
determine both Medicare-dependency
and the base period for calculating the
hospital specific amount If the cost
reporting period beginning in FY 1987 is
for more than 12 months, this period
should be used to determine whether the
hospital meets the Medicare-
dependency criterion and in calculating
the highest of the three possible
payment amounts. This policy will also
be applied to calculating the FY 1987
hospital-specific rate for an SCH.

Comment One commenter suggested
that we revise § 412.75(f) to clarify the
appeals process for determinations of
the hospital-specific rate based on the
FY 1987 base period. The commenter
also took issue with the provision that a
hospital’s FY 1987 hospital-specific rate
would be modified if certain revisions
were made to the hospital's “base-
period notice of amount of program
reimbursement (NPR).” The commenter
believes that the reference to the NPR is
inappropriate since, for FY 1987, SCHs
and MDHs were not paid for inpatient
operating costs on a reasonable cost
basis and their base-period costs will
not be based on an NPR determination.

Response: We agree that the process
for appealing intermediary
determinations of the hospital-specific
rate needs to be clarified, and we are
amending the regulations to provide
specific authorization for such appeals
in S 412.75. This regulation now provides
that a determination of a hospital's
hospital-specific rate will be treated as a
final intermediary determination of the
amount of program reimbursement for
purposes of the administrative and
judicial review provisions set forth in
subpart R of part 405.

We disagree, however, that the
regulations need not also take into
account changes to the base-period
notice of amount of program
reimbursement that result from
administrative and judicial review. The
commenter correcdy noted that the FY
1987 notice of amount of program
reimbursement for SCHs and MDHs did
not determine allowable inpatient
operating costs on a reasonable cost
basis. However, this does not mean that
revisions to or appeals of the base-
period notice of program reimbursement

will have no impact on the
determination of base-period inpatient
operating costs. For example, the
determination of base-period inpatient
operating costs could be affected by the
same circumstances that cause a
revision in the intermediary’s
determination of allowable outpatient
costs. For this reason, we are providing
in i 412.75(g) that a hospital's hospital-
specific rate for FY 1987 will be revised
to reflect not only any modifications
resulting from administrative and
judicial review of the hospital-specific
rate determination, but also increases or
decreases in costs recognized as
allowable for the hospital's base period
as a result of administrative or judicial
review of the base-period notice of
amount of program reimbursement.

Comment: One commenter requested
certain protections to avoid the
possibility of error in a fiscal
intermediary's initial determination of
which of the three payment rates yields
the highest aggregate payment for an
SCH or MDH. The commenter was
concerned that if an intermediary used
an inappropriate estimating method or
made a calculation error in determining
the most advantageous rate, the hospital
would have to wait a substantial period
of time, and perhaps incur serious cash
flow problems, before any final
settlement or reevaluation of the
aggregate rate determinations would be
made. Accordingly, the commenter
suggested the fiscal intermediaries be
required to furnish each SCH and MDH
a copy of the calculations used to make
the initial determination of the highest
aggregate payment amount, as well as a
copy of the calculations used to
determine the final payment amount.
The commenter also suggested that the
intermediary be required to take into
account any additional information the
hospital may provide and to consider an
interim adjustment prior to the end of
the cost reporting period if additional
data result in more favorable payment
for the hospital.

Response: We believe current
program practices already meet the
commenter’s concern. For interim
payment purposes, it is not necessary to
estimate aggregate payments over the
cost reporting period. Payments will
continue to be made on an individual
bill basis; therefore, it is necessary only
to determine which of the three rates
(that is. the 1982 hospital-specific rate,
the 1987 hospital-specific rate, or the
Federal rate) is likely to result in the
highest payment This determination is
made by the PRICER program used to
pay Medicare bills. All bills will be
priced based on the Federal rate. In

35998 Federal Register / Vol. 55, No. 171 / Tuesday, September 4, 1990 / Rules and Regulations

addition, if PRICER determines that the
hospital-specific rate would yield, on
average, a higher payment, an add-on
payment will be made for each
discharge based on the estimated
difference between the higher hospital-
specific rate and the average Federal
payment for that DRG.

Determining which of the two
hospital-specific rates yields the higher
aggregate payment amount is fairly
straightforward. If a hospital is
dissatisfied with the intermediary’s
determination of the FY 1987 hospital-
specific rate, it may appeal that
determination upon receipt of the notice
of the rate, as discussed in the response
to the immediately preceding comment.

The more difficult comparison is
between the higher hospital-specific rate
and the Federal rate. The difficulty is
that aggregate Federal payments are
affected by a number of factors that
cannot be determined precisely in
advance, such as the amount of outlier
payments, the disproportionate share
adjustment, and the indirect medical
education adjustment. However, as
explained in the April 20,1990 final rule
with comment period, interim payment
will automatically be made at the
highest rate using the best data
available. As with all interim payments,
the hospital will be permitted to submit
any additional data that it believes
might affect the estimate of its Federal
rate. These data could include updated
information for purposes of estimating
the indirect teaching or disproportionate
share factors. PRICER uses the rural
national average outlier experience to
estimate average outlier payments,
which we believe is an adequate
estimate for interim payment purposes.
Final settlement will take into account
actual outlier payments.

A hospital has the necessary
information to estimate its average
Federal rate. The formula for doing so is
as follows:

1 . Multiply the labor-related portion of
the standardized amount by the
applicable wage index and add the
product to the nonlabor-related portion
of the standardized amount.

2 . Multiply the amount determined in
Step 1 by the sum of 1 plus the
applicable indirect teaching adjustment
factor and the disproportionate share
adjustment factor.

3. For discharges occurring on or after
October 1,1990, multiply the amount
determined in Step 2 by 1.02315 to
determine the estimated average
Federal rate including outlier payments.
(For discharges occurring before
October 1,1990, the factor is 1.02197).

4. If the hospital-specific rate is higher
than the estimated average Federal rate

determined in Step 3. determine the
difference. To determine the add-on for
a specific case, multiply the difference
by the DRG weight for the case.

We do not believe it is necessary to
require an intermediary to issue these
calculations routinely to each hospital.
Finally, if, based on the submission of
additional information or the
identification of a calculation error, the
determination of the highest aggregate
payment is determined to be incorrect,
the intermediary should adjust
payments as soon as possible without
waiting until final settlement of the
hospital’s cost report. This is consistent
with our general policy for adjusting
interim payments.

C. Recognition of Nursing School Costs
(§§ 412.113(b) and 413.85)

1. Background

Medicare has historically paid a share
of the net cost of approved medical
education activities. Regulations
concerning Medicare payment for
nursing and allied health educational
costs are located at §§ 412.113(b) and
413.85. Section 413.85(b) defines
approved educational activities as
formally organized or planned programs
of study usually engaged in by providers
in order to enhance the quality of
patient care in an institution. Under
§ 413.85(e), approved medical education
activities include training programs for
nurses.

Section 413.85(a) specifies that the
allowable cost of approved educational
activities is the net cost, which is
determined by deducting tuition
revenues from total costs. The net costs
incurred for classroom and clinical
training in an approved nursing
education program operated by the
provider are included within the
definition of allowable medical
education costs. Under sections 1886
(a)(4) and (d)(1)(A) of the Act and
§ 412.113(b) of the regulations, the costs
of approved medical education activities
are excluded from the definition of
operating costs and, in the case of
approved nursing education programs
operated by the provider, are paid on a
reasonable cost basis.

Section 413.85 excludes costs incurred
for nonprovider-operated programs from
the definition of the approved medical
education activities. The costs incurred
by a hospital to support a nonprovider-
operated nursing education program, to
the extent they are allowable, are
considered normal operating costs and
are included in the DRG payment for
inpatient services and are paid on a
reasonable cost basis for outpatient
services.

The allowable costs of nonprovider-
operated nursing education programs
are defined in chapter 4 of the Provider
Reimbursement Manual (HCFA Pub. 15-
1 ). Under our current policy, costs
incurred by the hospital for clinical
training at the hospital that relate to
care of the hospital's patients are
allowable. In cases in which classroom
training occurs at the hospital, costs
incurred by the hospital are allowable
if—

• The hospital’s support does not
constitute a redistribution of
nonprovider costs to the hospital;

• The hospital is receiving a benefit
for the support it furnishes; and

• The hospital’s support is less than
the cost the hospital would be expected
to incur with a program of its own.

2 . Section 6205 of Public Law 101-239

Section 6205(a) of Public Law 101-239
created a new temporary category of
"hospital-based nursing schools" in
addition to those recognized under
§§ 412.113(b) and 413.85. Gosts incurred
by hospitals for training nursing
students enrolled in these schools are to
be paid on the basis of reasonable cost
as though the hospital met the criteria at
§ 413.85. As specified in section
6205(a)(1)(A) of Public Law 101-239,
costs incurred by a "hospital-based
nursing school" will qualify under this
provision—

.if, before June 15.1989, and

thereafter, the hospital demonstrates that for
each year, it incurs at least 50 percent of the
costs of training nursing students at such
school, the nursing school and the hospital
share some common board members, and all
instruction is provided at the hospital or. if in
another building, a building on the immediate
grounds of the hospital.”

We provided that to meet the first
criterion, the hospital must incur at least
50 percent of the total costs, that is. the
costs before deduction of tuition
revenues, incurred for classroom and
clinical training provided to students
enrolled in an approved nursing
education program at the hospital-based
nursing school. This includes programs
in both professional and practical
nursing that are approved by the
appropriate approving body under
§ 413.85(e). We note that approved
allied health education programs are not
included in this provision. Moreover, we
provided that a hospital would not be
considered to be incurring costs through
payments to an educational institution
for training of students.

Neither section 6205 of Public Law
101-239 nor the Committee Report (H.R.
Rep. No. 386,101st Cong., 1st Sess.

(1989)) that accompanied Public Law

Federal Register / Vol. 55. No. 171 / Tuesday. September 4. 1990 / Rules and Regulations 35999

101-239 elaborates on the second
criterion, that the nursing school and the
hospital share some common board
members. We provided that we consider
this requirement to be met if at least 50
percent of the board with fewer
members (either the hospital or the
nursing school) are also members of the
board of the other entity, regardiesB of
the number of members of the larger
board.

The third criterion, that all instruction
be provided at, or on the immediate
grounds of, the hospital is clarified in
the Conference Committee Report (H.R.
Rep. No. 386.101st Cong., 1st Sess. 669
(1989)). The report states that a program
complies with this requirement
“• * * only if this instruction occurs on
the hospital campus, not on the campus
of on institution with which the hospital
is affiliated (Emphasis added.) In
instances where the hospital is
contiguous to. or within, the campus of
an educational institution, this criterion
will be considered to be met only if the
instruction is provided at the hospital.

Section 6205(b)(2)(A) of Public Law
101-239 requires that the Secretary issue
proposed regulations before July 1,1990
that specify—

• The relationship required between
an approved nursing education or allied
health education program and a hospital
for the program’s costs to be attributed
to the hospital;

• The types of costs related to nursing
or allied health education programs;

• The distinction between costs of
approved educational activities paid on
the basis of reasonable cost and
educational costs treated as operating
costs of inpatient hospital services; and

• The treatment of other funding
sources for the program.

Section 6205(b)(2)(B) of Public Law
101-239 provides that the final rule will
not be effective before October 1,1990,
or 30 days after publication of the final
rule in the Federal Register, whichever
is later.

In addition, section 6205(b)(2)(A) of
Public Law 101-239 provides that during
the period after December 18,1989 and
before October 1,1990, there is to be no
recoupment of overpayments
attributable to nursing and allied health
costs that have been reported as
allowable medical education costs
payable on a reasonable cost basis and
later have been determined to not meet
the definition of these costs. We have
issued program instructions to our
intermediaries to implement this
provision.

Section 6205(a)(2) Public Law 101-239
states that the new “hospital-based
nursing school” provision applies to cost
reporting periods beginning on and after

enactment and # on or before the
date on which the Secretary issues
regulations pursuant to subsection
(b)(2)(A) (section 6205(b)(2)(A) of Public
Law 101-239).” In citing section 6205
(b)(2)(A), section 6205(a)(2) of Public
Law 101-239 presents us with a logical
inconsistency.

Subparagraphs (A) and (B) of section
6205(b)(2), taken together, make it clear
that the regulations referred to in
section 6205(b)(2)(A) are proposed
regulations, to be issued before July 1,
1990, and to be followed by a BO-day
comment period. The final regulations
(to which, it is assumed, the term
“regulations” in section 6205(a)(2) of
Public Law 101-239 refers) are to be
effective no earlier than October 1,1990.
In light of the common understanding of
the term “regulations'’, we provided that
the temporary category of “hospital-
based nursing schools” will expire with
a hospital’s first cost reporting period
beginning on or after the date of the
final regulations required by section
6205(b)(2)(B)(iii) of Public Law 101-239
are issued.

Given the temporary and limited
applicability of section 6205(a) of Public
Law 101-239, we did not amend the
codified regulations to reflect the
implementation of the policies explained
above.

3. Comments and Responses

Two commenters are concerned with
our interpretation of section 6205(a) of
Public Law 101-239 concerning the
recognition of costs of approved nursing
education and allied health education
programs not operated directly by a
hospital to the extent that these policies
will be incorporated into the regulations
required under section 6205(b)(2)(B) of
Public Law 101-239. As noted above,
section 6205(b)(2)(B) of Public Law 101-
239 requires the Secretary to publish
final regulations to be effective no
earlier than October 1,1990 that address
the types of nursing and allied health
education costs that should be
considered allowable and which of
these allowable costs should be treated
as operating costs and which should be
treated as pass-through costs and paid
on a reasonable cost basis.

We will be publishing the regulations
required by section 6205(b)(2)(A) of
Public Law 101-239 as a separate
proposed rule with a 60-day comment
period. The proposed rule will be
separate from and not contingent upon
any of the provisions in this final rule
concerning hospital-based nursing
schools. We have addressed the specific
concerns of those who commented on
section 6205(b) of Public Law 101-239 as
well as the other comments we received

on our implementation of the provisions
of section 6205(a) in the April 20.1990
final rule with comment.

Comment: A commenter believes that
there is no basis in section 6205(a) of
Public Law 101-239 or its legislative
history for a requirement that at least 50
percent of the board with fewer
members (either the hospital or the
nursing school) be members of the board
of the other entity. The commenter
noted that the law provides that the
hospital and nursing school share
“some” common board members. The
commenter cited Webster’s dictionary,
in which “some” is defined as “being at
least one * * which the commenter
believes should be the minimum
requirement for overlapping board
membership. Another commenters
experience is that the 50 percent
requirement is much too onerous. The
commenter believes that it is unrealistic
to expect that the governing bodies of
two large organizations will have such a
substantial overlap. Other commenters
suggested that at least two members or
30 percent of the smaller board be the
minimum requirement.

Response: When writing a rule to
implement a statutory provision, we first
look to the legislative history for
clarification of provisions in the statute.
In this case, the Conference Committee
Report that accompanied Public Law
101-239 is silent on the issue of what the
Congress meant by “some.*' The
definition of “some" cited by one of the
commenters is one of three definitions of
the word “some", as an amount or
quantity, in Webster’s dictionary.
However, the other two definitions have
in common a definition of "some” as an
unspecified number or amount. We
believe that common usage tends much
more toward this definition, rather than
that cited by the commenter. Therefore,
we have not accepted the comment that
“some" should be defined as “at least
one".

In the absence of any specific
explanation of Congressional intent, we
look to the overall language of a
statutory provision for a common-sense
explanation of a specific requirement. In
this case, the other two criteria for a
hospital-based nursing school are that
all instruction be provided at the
hospital and that the hospital incur at
least 50 percent of the school’s cost. In
using the word “some” for the board
overlap requirement we concluded that
the Congress intended that there be an
appreciable overlap between board
members. In most situations, we believe
that our policy that at least 50 percent of
the board with fewer members must

36000 Federal Register / Vol. 55. No. 171 / Tuesday. September 4. 1990 / Rules and Regulations

also be members of the other board is a
reasonable standard.

For example, if a nursing school has
an 8-member board and a hospital has a
30-member board, this criterion would
be met if 4 members of the nursing
school’s board were also members of
the hospital’s board. Thus, less than 14
percent of the larger board would
consist of members of the smaller board.

At the same time, we recognize that if
both boards are large, there may be
situations where the 50 percent standard
would not be reasonable in determining
whether the board membership criterion
are met. Therefore, we are modifying
our policy to provide that the lesser of 4
board members or 50 percent of the
members of the smaller board must be
common board members.

Comment: One commenter stated that,
in determining whether a hospital-based
nursing school meets the common board
membership criterion, HCFA should
recognize overlapping board
membership between a nursing school
and a corporate parent organization of
the hospital, since this organization
owns or controls the hospital.

Response: We do not believe that we
should revise the policy as proposed by
the commenter. Section 6205(a)(1)(A) of
Pub. L. 101-239 clearly requires that the
hospital share some common board
members with the nursing school.
Moreover, our policy is consistent with
other aspects of the Medicare program.
For example, in determining whether a
nursing education program is provider-
operated, we look to whether the
hospital actually operates the program.

If the program is operated by a parent
corporation rather than the hospital, we
do not consider the program to be
provider-operated.

Comment: Two commenters stated
that it is unreasonable to require that
the hospital incur 50 percent or more of
the total costs of the nursing program;
that is, the costs before deduction of
tuition revenues. The commenters also
suggested that support payments made
by the hospital to the nursing school
should be recognized in applying the 50
percent test. The commenters believe
that the requirement that the hospital
directly incur 50 percent of the total cost
unnecessarily interferes with the
administration of the nursing school by
requiring that, for example, more faculty
be salaried by the hospital than by the
school, or that more of the facility costs
be paid by the hospital than by the
school so the costs are directly incurred
by the hospital. Thus, this policy also
interferes with the school’s ability to
demonstrate that it operates as a
separate corporation under its own
governing authority as required by

certain accrediting organizations. The
commenters suggest that a payment by
the hospital equal to at least 50 percent
of the net cost of the program should be
sufficient to satisfy the support
requirement.

Response: We agree with the
commenter that the requirement should
be 50 percent of the net costs rather than
total costs and that payments to the
nursing school should be recognized in
applying the criterion. Program policy
has been to recognize the net cost of
educational activities for Medicare
payment purposes. Net cost is defined
as total cost less tuition revenues.

There are probably few situations
where the use of net cost rather than
total costs would make any difference.
This is because the tuition offset should
ordinarily be proportional to the costs
incurred by each entity. We recognize,
however, that there may be situations in
which a proportional offset would not
be appropriate. For example, a nursing
education program’s established policy
could be that students pay tuition while
in the classroom education portion of
the program at a college. When the
students move to the clinical education
portion of the program at the hospital,
they may pay no tuition or a reduced
tuition amount or are paid a stipend, or
both. In such situations, a proportional
offset of tuition income would not be
appropriate.

To accommodate these situations, we
are revising our policy to provide that
the hospital must incur 50 percent of the
net cost of the nursing education
program. If the hospital supports the
nursing education program in cash
rather than in kind, the payments to the
nursing school are allowable costs if the
hospital’s support does not constitute a
redistribution of the nonprovider's costs
to the hospital, and the support is less
than the provider would incur in running
its own program. If the costs are
allowable, they are included in the
hospital's costs for purposes of the 50
percent test. The hospital must furnish
auditable documentation that the
hospital incurs, either in cash or in kind,
50 percent of the net cost of the nursing
education program. A full costing
methodology, such as that provided for
in the latest version of A Cost
Accounting Handbook for College and
Universities published by the National
Association of College and University
Business Officers or in OMB Circular A-
21, Cost Principles for Educational
Institutions, should be used to determine
the cost to the college for the nursing
school.

Comment: One commenter was
concerned that a nursing school’s use of
a building on the hospital's grounds that

the nursing school leases from the
hospital could lead to a determination
that instruction is not taking place at the
hospital because the leased building is
not part of the licensed hospital facility.

Response: If the leased building were
on the hospital grounds, the requirement
that all instruction is provided at, or on
the immediate grounds of, the hospital
would be met. To clarify the point for
this commenter, if a nursing school
leases a building on the hospital grounds
to be used for classroom instruction of
nursing students, we would consider the
instruction to be taking place on the
immediate grounds of the hospital. The
hospital’s capital-related and operating
costs associated with the leased
building are reduced by the amount of
lease income.

In summary, for hospital cost
reporting periods beginning on and after
December 19,1989, a hospital may claim
as pass-through costs the costs incurred
in training students from a nursing
school that meet all of the following four
criteria:

(i) The hospital incurs at least 50
percent of the net costs, that is, the costs
after a deduction of tuition revenues
incurred for classroom and clinical
training provided to students enrolled in
an approved nursing education program
at the hospital-based nursing school.

This would include programs in both
professional and practical nursing that
are approved by the appropriate
approving body under § 413.85(e).

(ii) At least 50 percent of the board of
directors with fewer members (either the
hospital or the nursing school) or 4
members, whichever results in a smaller
number, are also members of the board
of the other entity, regardless of the
number of members of the larger board.

(iii) All instruction is provided at, or
on the immediate grounds of, the
hospital. In instances where the hospital
campus is contiguous to, or within, the
campus of an educational institution,
this criterion will be considered to be
met only if the instruction is provided at
the hospital.

(iv) The preceding three criteria were
met on June 15,1989, and have been met
continuously since that date.

D. Payments for Hemophilia Inpatients
(§ 412 . 115 )

Hemophilia, a blood disorder
characterized by prolonged coagulation
time, is caused by an inherited
deficiency of a factor in plasma
necessary for blood to clot. Hemophilia
is considered to encompass the
following conditions: Factor VIII
deficiency (classical hemophilia); Factor
IX deficiency (also termed plasma

Federal Register / Vol. 55, No. 171 / Tuesday, September 4, 1990 / Rules and Regulations 36001

thromboplastin component (PTC) or
Christmas factor deficiency); and Von
Willebrand’s disease. The most common
factors required by hemophiliacs to
increase coagulation are Factor VIII and
Factor IX; a small number of
hemophiliacs have developed inhibitors
to these factors and require special
treatment.

In late 1989, ProPAC completed a
study entitled “The Adequacy of
Prospective Payment for Medicare
Beneficiaries with Hemophilia." ProPAC
determined that hemophilia patients
were distributed across several DRGs
and that patients with hemophilia had
higher inpatient operating costs than
other patients. However, while
payments under the prospective
payment system for these cases were
slightly higher, the relative payment to
cost ratios were lower. On October 2,
1989, ProPAC recommended to Congress
implementation of a prospectively
determined add-on payment for patients
requiring the clotting factor, and that
this payment should be determined on a
per unit basis, based on a weighted
average of the types of clotting factor
available.

In response to ProPAC's
recommendations and growing concern
about increasing hospital costs for
treating hemophiliacs, Congress enacted
section 6011 of Public Law 101-239. That
section amended section 1886(a)(4) of
the Act to provide that prospective
payment hospitals receive an additional
payment for the costs of administering
blood clotting factor to hemophiliacs
who are hospital inpatients. The
payment is to be based on a
predetermined price per unit of the
clotting factor multiplied by the number
of units provided. Under section
1886(a)(4) of the Act, this add-on
payment is effective for blood clotting
factor furnished on or after June 19,1990
and before December 19,1991. In
addition, section 6011 of Public Law
101-239. requires HCFA and ProPAC to
develop and submit to Congress
recommendations on how to pay for
blood clotting factor. These
recommendations are due not later than
June 19,1991.

We established a price per unit of
clotting factor based on the latest (1990)
price listing available from the Drug
Topics Red Book, the publication of
pharmaceutical average wholesale
prices. We set three separate add-on
amounts, one for each of the three basic
types of clotting factor because a
comparison of the wholesale prices for
the different types of clotting factor (that
is, Factor VIII, Factor IX, and the other
factors which are given to those patients

with inhibitors to Factors VIII and IX
(designated as Anti-inhibitors in this
document)) reveals great variations
among the three types. The Factor IX
products are priced much lower than the
Factor VIII products, and the special
Anti-inhibitor factors are priced higher
than both of the other factors. Therefore,
we determined that it is more equitable
to set an add-on payment amount for
each type of blood clotting factor.

The add-on payment amount for each
of the three types of factor was based on
the median average wholesale price of
the several products available in that
category of factor. However, since we
are aware that hospitals are generally
able to negotiate direct selling prices
with the various drug companies that
are lower than the wholesale prices
listed in the Drug Topics Red Book, we
discounted the average wholesale prices
by 15 percent before calculating the
median price. This 15 percent discount
was based on the results of a study
conducted by the Department’s Office of
Inspector General (OIG) entitled "Use of
Average Wholesale Prices in
Reimbursing Pharmacies Participating in
Medicaid and the Medicare Prescription
Drug Program" (Report No. A-06-89-
00037, October 3.1989). The OIG
determined that the average wholesale
price of a drug is heavily discounted in
direct sales and that current data show
that this discount averages 15.5 percent.
In addition, the OIG report states that
the average wholesale price is not a
meaningful payment level, and it should
not be used for making payment for
drugs under Medicare.

Based on information from industry
representatives, we believe that the
doting factors are generally available to
hospitals at or below the add-on
payment amounts that we established
for the three types of blood clotting
factors, which are as follows:

Factor VIII—$.64 per unit

Factor IX—$.26 per unit

Other Hemophilia Clotting Factors (for

example, Anti-inhibitors)—$1.00 per unit

We recognize that the products
available, and their costs, are changing
rapidly, with new products entering the
market and existing products being
discontinued. Since the market share of
various products can shift dramatically
within a short period of time, we believe
the median price is preferable to a
weighted average. In the April 20,1990
final rule with comment, we stated that
we recognize that changes in the clotting
factor market may require re-evaluation
of the add-on payment amount before
the final rule setting forth the FY 1991
prospective payment rates is issued.

We have developed specific codes to
identify the three types of factor. These
codes must be included in the bill
submitted by the hospital in-order to
receive the add-on payment.

Instructions were issued to Medicare
intermediaries explaining the codes and
how to use them (Transmittal No. 1486,
August 1990). These codes serve to
identify the causes requiring payment
for the clotting factor and also permit
the accumulation of data over time. The
data will be evaluated in determining
future payment alternatives.

Comment: A manufacturer of blood
clotting factors for hemophilia patients
wrote to inform us about a newly
developed purified Factor IX. This
product is currently in the process of
being approved by the Food and Drug
Administration (FDA). The
manufacturer recommended that
purified Factor IX concentrates be
classified with blood clotting factor
products categorized as "Other" and
reimbursed at $1.00 per unit, as this
amount more closely approximates their
production cost than the $.26 per unit
allowed for other Factor IX products.

Response: At this time, the purified
factor IX referred to by the commenter
is still in the process of being approved
by the FDA. Until approval is final, the
product will not be licensed and no
price will be assigned to it. As noted
above, we stated in the April 20,1990
final rule with comment period that if
any new products were approved before
publication of the FY 1991 prospective
payment system final rule we would
recalculate the add-on payment amount
for blood clotting factors administered
to hemophilia patients. However, since
the approval process for this new Factor
IX product is still in process, no unit
price has been assigned and we will not
be able to include it in any category at
this time, nor will we revise any of the
add-on amounts.

When this factor does receive final
approval by the FDA. it will be assigned
to the appropriate category for payment
as will any other new FDA-approved
blood clotting product. We will reassess
the prices per unit for each of the blood
clotting factors and any other
appropriate issues as part of the
proposed rule for FY 1992 prospective
payment system changes.

Comment: One commenter objected to
the application of a 15 percent discount
to the price per unit for blood clotting
factors administered to Medicare
hemophilia inpatients. The commenter
stated that this Medicare reduction was
for the purpose of taking into account
either incentive discounts or volume
discounts granted by manufacturers to

36002 Federal Register / Vol. 55. No. 171 / Tuesday, September 4, 1990 / Rules and Regulations

the hospitals. However, because of the
small volume of blood clotting factor
purchased by any one hospital,
manufacturers’ incentive discounts and
volume discounts do not apply.
Therefore, the commenter asserts that
hospitals cannot be expected to
negotiate discounts for these blood
clotting factors as they could for other
types of drugs and that in setting the
add-on payment amount per unit of
blood clotting factor, the 15 percent
discount should be eliminated.

Response: Although the volume of
hemophiliacs who are hospital
inpatients is not of the magnitude of a
variety of other hosptial inpatient
conditions requiring pharmaceutical
drugs, utilization of blood clotting
factors is concentrated in certain
hospitals. Comprehensive hemophilia
treatment centers administer the
majority of these factors. Since we
believe that the intention of Congress in
including this special blood clotting
factor payment provision in section 6011
of Public Law 101-239 was to protect
from large losses those hospitals that
specialize in treating hemophilia
patients and purchased substantial
amounts of clotting factor, we conclude
that it is not inappropriate to
incorporate a 15 percent discount in
setting the price of clotting factor.

We also note that, prior to deciding on
the per unit payment to be added on for
blood clotting factors administered to
hemophilia inpatients, we conducted
extensive consultation with experts in
the field, including information on price
availability. Based on the results of
these consultations, we are confident
that the payment rates established are
adequate and equitable.

E. Ceiling on Rate of Hospital Cost
Increases

Section 101 of the Tax Equity and
Fiscal Responsibility Act of 1962 (Pub. L
97-248) added section 1986 to the Act to
establish a ceiling on the allowable rate
of the increase for hospital inpatient
operating costs. This ceiling still applies
to hospitals and units excluded from the
prospective payment system. Excluded
hospital and hospital units under section
1886(d)(1)(B) of the Act include
psychiatric, rehabilitation, children’s,
cancer, and long-term hospitals, and
psychiatric and rehabilitation distinct-
part units of acute care hospitals. (Prior
to FY 1988, alcohol/drug hospitals and
distinct-part units were also excluded
from the prospective payment system,
but are now under the prospective
payment system.)

These excluded hospitals and units
receive payment for the inpatient
nospital services they furnish on the

basis of reasonable cost up to a ceiling.
Under the rate of increase limits, an
annual target amount (stated as
inpatient operating cost per discharge) is
set for each hospital, based on the
hospital’s own cost experience in its
base year. This target amount is applied
as a ceiling on the allowable costs per
discharge for the hospital's next cost
reporting period.

A hospital that has inpatient operating
costs per discharge in excess of its
target amount would be paid no more
than that amount. However, a hospital
that has inpatient operating costs less
than its target amount would be paid its
costs plus the lower of:

(1) 50 percent of the difference
between the inpatient operating cost per
discharge and the target amount; or

(2) 5 percent of the target amount.

Each hospital's target amount is

adjusted annually, before the beginning
of its cost reporting period, by an
applicable target rate percentage for the
12-month period. The rate of increase
limit is based on an assumption that a
provider’s year-to-year inpatient
operating costs should remain
comparable to its base year, except for
inflation. Section 1888(b)(4)(A) of the
Act gives the Secretary the authority to
grant an exemption from, or an
adjustment or exception to, the rate of
increase limit where events beyond the
hospital's control ot extraordinary
circumstances create a distortion in the
increase in costs.

Section 0015 of the Omnibus Budget
Reconciliation Act of 1989 (Pub. L. 101-
239) amended the adjustment authority
contained in section 1986(b)(4)(A) of the
Act to provide that a hospital or
excluded unit may be assigned a new
base year in lieu of adjustments to the
existing target amount. Thus, the
assignment of a new base period is
another mechanism HCFA may use,
when appropriate, in determining the
payment amount to an excluded hospital
that has exceeded its ceiling in a cost
reporting period. Section 6015 of Public
Law 101-239 requires the Secretary to
publish instructions that set forth the
application process under which
hospitals may request target rate
exemptions and adjustments.

1. Base Period

Section 1686(b)(3) of the Act provides
for the use of a particular 12-month cost
reporting period as the base period that
serves as the basis for future periods'
target amount after updating by the
applicable percentage increase. The
base period is the first cost reporting
period of the excluded hospital or unit
beginning before the period for which
section 1886(b) of the Act applies.

Section 1886(b)(5) of the Act gives the
Secretary the authority to determine the
applicable 12-month period to use as the
base period for excluded hospitals or
hospital units that have a cost reporting
period that is other than 12 months in
duration. This policy is set forth in
regulations at § 413.40(b)

A hospital’s fiscal intermediary
calculates the target amount by dividing
the Medicare allowable inpatient
operating costs, as defined under section
1886(a)(4) of the Act, by the number of
Medicare discharges in the base year
cost reporting period. A hospital could
incur costs that exceed its ceiling due to
extraordinary circumstances such as
flood, fire, earthquake or similar unusual
occurrences, or some other factor that
has caused a distortion in the
comparison of the base year and the
applicable cost reporting period. Under
section 1886(b)(4)(A) of the Act. the
Secretary can provide for a exception or
adjustment to the hospital's ceiling in
such circumstances. Section 413.40(f) of
the regulations implement section
1886(b)(4) of the Act regarding
exemptions, adjustments and exceptions
to the target rate of increse limit. The
regulations provide that HCFA may
adjust a hospital's operating costs
considered in establishing cost per case,
including both periods subject to the
limit and the hospital's base periods, to
take into account—

• Unusual costs due to extraordinary
circumstances beyond the provider's
control;

• Distortions in costs caused by a
change in case mix as a result of the
addition or discontinuation of services;
or

• Factors such as a change in the
inpatient hospital services that a
hospital provides that could result in a
significant distortion in the operating
costs of inpatient hospital services.

The adjustment may be made only if the
hospital exceeds its limit for the cost
reporting period and only to the extent
the hospital’s costs are reasonable,
attributable to circumstances specified
above, and verified by the intermediary.

The exceptions or adjustments we
make to a hospital's target amount are
most commonly for a particular problem
in one cost reporting period, such as a
hospital experiencing an increase in its
Medicare average length of stay relative
to its base year. This increase could
cause a distortion in the comparison to
its base year since the limit is calculated
on a per discharge basis. If a hospital
whose costs exceed the limit
demonstrates that its increased costs
are attributable to an average length of
stay increase and that its costs are

Federal Register / Vol. 55, No. 171 / Tuesday, September 4, 1990 / Rules and Regulations 36003

reasonable, we adjust the limit to
recognize the increase in average length
of stay over the base period.

In some situations, a permanent
adjustment is made to a hospital's target
amount, such as when a hospital adds a
new and substantially different service.
Such an addition would create the need
for additional staff and also could result
in treating a different kind of patient.
However, only those costs associated
with the addition of a new service
would be included in the permanent
adjustment made to the provider’s rate-
of-increase limit.

2. Assignment of a New Base Period

Section 6015(a) of Public Law 101-239
amended section 1886(b)(4)(A) of the
Act to give the Secretary authority to
assign a new base period to a hospital if
it is more representative of the
reasonable and necessary costs of its
inpatient services. In the April 20,1990
final rule with comment period (at 55 FR
15157), we provided that we would
authorize the assignment of a new base
period only under limited circumstances
and only when an adjustment cannot be
accomplished through other provisions
as discussed above. In order to justify
the assignment of a new base period, a
hospital must have a permanent,
substantial, and significant change in
the nature of services provided that
results in costs exceeding its rate-of-
increase limit. An example of such a
change would be a psychiatric
institution that previously had only
provided limited care to its patient
population and then had changed the
entire focus of its work to providing a
comprehensive range of psychiatric
services to its patients.

However, should a hospital
experience a significant change in
patient care services and its costs
exceed the rate-of-increase limit, the
remedy will not automatically be the
assignment of a new base period. A
general increase in costs beyond the
limit is not grounds for rebasing. As
discussed above, if a hospital adds a
new service that results in increased
costs, a permanent adjustment may be
made to the hospital's limit to alleviate
the distortion created by the new
service and total rebasing would not be
warranted.

Another situation that could occur is
that the hospital may have significantly
changed its patient care services but all
the costs incurred above the ceiling may
not be reasonable and necessary. One
area we give particular attention to in
this respect is indirect costs (for
example, administrative and general
costs, and operation of plant.) The
increases in indirect costs are often the

result of factors that are not directly
related to patient services; therefore,
any excessive increases are not
included in any adjustments and would
not be included if the assignment of a
new base period were approved. Rather,
we expect cases of this nature to result
in a rebasing of direct patient care costs
only.

Comment: We received a number of
comments from national associations
representing hospitals that are subject to
the rate-of-increase limits. State hospital
associations, and a State Department of
Human Services that believe that the
April 20,1990 final rule with comment
period is too restrictive in setting forth
the conditions under which we would
approve the assignment of a new base
period. Most of the commenters believe
that our interpretation of the rebasing
provision is inconsistent with
Congressional intent. They construed
the provision as broadening our
authority to permit rebasing whenever a
hospital demonstrates that its costs in a
new base year are reasonable and
necessary and more representative of
current services than those in the
original base year. They generally
recommended that we authorize
rebasing for a much wider variety of
circumstances. One commenter believes
that Congress provided the new
authority because the current
adjustment policy is too narrow and that
rebasing should be used to mitigate the
financial harm to hospitals that are paid
under a system that was considered
temporary when enacted 8 years ago.
Other commenters asserted that
rebasing should be allowed when the
annual update factor has proved
inadequate to cover the actual increase
in a hospital's costs for the cost
components that it is designed to cover.

Response: We agree that the rule is
restrictive in setting out the
circumstances under which rebasing
would be allowed. We do not agree,
however, that our interpretation is
contrary to Congressional intent. First,
nothing in the statute or legislative
history suggests that Congress intended
us to implement this provision with
broad and general criteria that would
permit the widespread assignment of
new base periods. In addition, we find
significant the minimal cost attached to
the rebasing provision by the
Congressional Budget Office at the time
of enactment. If general rebasing had
been intended, the cost estimate would
have been significantly higher. Finally,
we believe it is more consistent with the
policies underlying the rate-of-increase
limits to view the rebasing provision as
being simply an enhancement to the
current exception and adjustment

process that can be resorted to when the
existing process proves inadequate to
address a distortion in a hospital's base
period or rate of increase.

The broad interpretation of section
1886(b)(4)(A) of the Act advocated by
the commenters would have the effect of
substantially revamping the payment
methodology for excluded hospitals. It is
evident that the commenters see the
rebasing option as a means of
alleviating difficulties caused by the
inability of many hospitals to remain
within their target limits. However, the
commenters’ view of the provision
would put it at odds with the basic
premise of the rate-of-increase
limitation, which is to hold hospitals to
the annual rate of increase except when
events beyond a hospital's control or
extraordinary circumstances warrant an
adjustment. It would be unlikely for
Congress to make a major change in the
rate-of-increase methodology without
providing a clear statement of that
intent. Moreover, Congress has
requested a report on alternative
payment methodologies for excluded
hospitals, due October 1,1990. It would
be incongruous to believe Congress
intended that we authorize a general
rebasing, which would be tantamount to
a major revision in payment
methodology, while simultaneously
requesting recommendations on
alternative payment methodologies.

Therefore, this provision will remain
unchanged in granting the assignment of
a new base year in those limited
circumstances in which a hospital
demonstrates that there has been a
permanent, significant, and substantial
change in the nature of services
provided that results in costs exceeding
its target amount. Typically, the
rebasing provision will apply in
situations in which there has been a
significant change in patient services
such as that associated with a major
expansion or change in the type of
programs provided by an excluded
hospital or unit, a change of ownership,
or where significant cost increases have
incurred in order to meet certification or
accreditation needs. These are
situations involving broad, substantial
changes that cannot be adequately
accounted for under the more targeted
exceptions and adjustments process.

Comment: In arguing for a broader
interpretation of the rebasing provision,
commenters mentioned numerous
factors that they believe were not
addressed by the annual update factor.

It was their contention that since the
update factor did not adequately reflect
the costs incurred by hospitals in
various circumstances, Congress

36flg4 Federal Regigt er / VoL 55, No. 171 / Tuesday. September 4, 1990 / Rules and Regulations

authorized rebasing as a means of
compensating for these costs. The
factors mentioned were: new
technology, union contracts, employee
benefit costs, food service, competition
for competent personnel, case-mix
changes, service intensity increases, and
a lower base year average length of stay
than in subsequent years.

Response: The current exception and
adjustment process accommodates
changes from the base year in average
length of stay and service intensity. As
far as the other factors are concerned,
they are accommodated by the annual
update factor. We do not believe that
Congress authorized rebasing under the
exceptions and adjustments authority
under section 1880(b)(4)(A) of the Act as
a means of subsidizing hospitals that
have been confronted with some of the
factors listed by the commenters and
were unable to address them within
their target limitation. One of the
assumptions behind limiting costs to a
predetermined ceiling is that if a
hospital needed to increase cost in one
area beyond the average amount
provided by the update factor, cost
containment measures would be
exercised in other areas.

Comment. One commenter claimed
that the conditions set forth for rebasing
further cloud the confusing set of
existing criteria for exceptions and
adjustments. The commenter indicated
that the distinctions among the three
mechanisms are difficult for hospitals to
understand and that the documentation
required for each of them is not clear.

The commenter suggested that we set
out which circumstances warrant which
kind of relief and that the application
process provide that if rebasing was not
justified, the same application could
then be used for considering a more
limited adjustment to the target rate of
increase. The commenter also objected
that hospitals are required to apply year
after year for relief when the same
circumstances persist indefinitely.

Response: The regulations
implementing the provision are found at
§ 413.40. The bases for relief under
§ 413.40 are as follows:

• New Provider Exemption (§ 413.40(f))

A new hospital may receive an
exemption from the rate-of-increase
limits until the end of the first cost
reporting period beginning at least 2
years after the hospital accepts its first
patient.

• Exceptions and Adjustments
(5 413.40(g) and § 413.40(h))

An exception or adjustment may be
granted only for a cost reporting period
in which the target amount is exceeded

and only when the costs in excess of the
target amount are reasonable and
justified. The adjusted target amount
may not exceed the hospital’s actual
cost per discharge for that cost reporting
period. Under 5 413.40(g), an exception
may be granted for extraordinary
circumstances or a change in case mix.
Extraordinary circumstances are events
such as earthquake, fire, flood, strike, or
other unusual circumstances beyond a
hospital's control that cause the hospital
to incur excessive costs. The exception
for case mix was originally established
when acute care hospitals were also
subject to the rate-of-increase limit
Since there is no good measurement of
case mix for most types of hospitals that
are excluded from the prospective
payment system, any increases in costs
resulting from a change in the mix of
patients must be documented: evidence
of a change in patient mix without
supporting documentation as to how the
change affected specific costs is not
sufficient to support an adjustment
under § 413.40(g).

The most common adjustment to the
target amount is to correct for cost
distortions between the base year and
the year the target amount is applied
under § 413.40(h). The premise of the
rate-of-increase limit is that a hospital's
year-to-year costs should remain
comparable to the base year unless
significant changes occur in services or
patient population. If there are
significant changes during the course of
a cost reporting period that create a cost
distortion in comparison to the base
year, an adjustment will be made to
remove the effects of the distortion.

There are a variety of factors that could
create distortions and result in the
noncomparability of cost reporting
periods; however, in order for HCFA to
approve an adjustment, these factors
must be linked to direct patient care
services and their impact on operating
costs per case must tie explicitly
documented. We approve an adjustment
for only a particular cost reporting
period if the circumstances creating the
cost distortion are temporary or prone to
fluctuation from year to year, such as a
change in average length of stay. If the
change is permanent, such as the
addition or deletion of a service, a
permanent adjustment is made to the
target amount.

• Assignment of a New Base Period
(§ 413.40{j)).

Effective with cost reporting period
beginning on or after April 1,1990. a
new base period will be assigned to
address substantial and permanent
changes in patient care services that are
so broad in nature that the resulting cost

distortion cannot be adequately
addressed through the more targeted
excepted and adjustments available
under 413.40(g) and 413.40(h). As is the
case with an exception or adjustment,
rebasing will be authorized only if the
hospital’s operating costs per discharge
are in excess of its target amount.

• Medicare Catastrophic Coverage Act
of 1983(5 413.40(i)).

As explained in greater detail in
section 1I.F of the preamble of this
document, below, the intermediary is
authorized to revise the target amount to
take into account the effects of
expanded inpatient hospital benefits
under catastrophic coverage. Unlike
other adjustments to the target amount,
the adjustment is not contingent on
whether the hospital’s operating costs
per discharge exceed its target amount.
An adjustment under S 413.40(i) does
not preclude an additional adjustment
under 413.40(h) for an increase in
average length of stay.

A hospital's request for an exemption
or revision in its target amount must be
made to its fiscal intermediary no later
than 180 days from the date on the
intermediary’s notice of program
reimbursement. The hospital's request
must indicate the type of relief being
requested, provide justification and
documentation supporting the request,
and, in the case of requests for an
exception, adjustment or rebasing,
explain any significant cost increases
since the base period. The intermediary
has the authority to revise the target
amount under § 413.40(i) for the effects
of the Medicare Catastrophic Coverage
Act of 1983. On all other requests, the
intermediary makes a recommendation
to HCFA, which makes the decision.

We will soon be issuing instructions
to be included in the Provider
Reimbursement Manual (HIM-15-1) that
provide more detailed guidelines for
making applications for exemptions,
exceptions, and adjustments. These
instructions will elaborate on the
circumstances applicable to the various
bases for relief available under § 413.40
and the application process. As
suggested by the commenter, the
instructions will indicate that the same
application may be used to request relief
under more than one provision.

Comment: One commenter found the
April 20 Final rule with comment
inconsistent with current practice that
gives the Medicare fiscal intermediary
authority to calculate target rates and
target rate adjustments. The commenter
asserted that the authority to assign new
base periods should remain with the
fiscal intermediaries due to their

Federal Register / Vol. 55. No. 171 / Tuesday, September 4. 1990 / Rules and Regulations 360«5

familiarity with the hospitals’
circumstances and because it would
result in more timely and possibly less
biased decisions if our budgetary
restraints were removed from the
decision process.

Response: Section 1886(b)(4)(A) of the
Act gives the Secretary authority to
assign a new base year under his
general exception and adjustment
authority that applies to the target rate
of increase provision. The fiscal
intermediaries make recommendations
on requests for exceptions and
adjustments under §5 413.40(g) and
413.40(h) and will do 30 on new base
year requests under § 413.40(j). The final
authority for approval of these requests
is with HCPA. acting for the Secretary.

The commenter appears to have
confused §§ 413.40(g) and 413.40(h) with
§ 413.40(i). Under § 413.40(1), the fiscal
intermediary does have the authority to
make target rate calculations and
adjustments for the provisions of Public
Law 100-300. This authority, however,
pertains only to § 413.40{i) and is
specific to the circumstances set forth
under Public Law 100-360.

Comment r The majority of the
commentcrs on the rebasing provision
were critical of what they thought was
our position in the April 20,1990 final
rule with comment period not to
recognize indirect costs in the rebasing
calculation. Several of these
commenters objected to what they
thought was our characterization of
indirect costs as unnecessary and
unreasonable. The commenters strongly
urged that we should include the same
kinds of costs in the rebasing calculation
as were recognized in the original base
year target rate calculation, including
reasonable and necessary indirect costs.

Response: In the preamble discussion
on the rehasing provision, we indicated
that increases in indirect costs often
result from factors that are not directly
related to patient care and, therefore,
would not be included in any
adjustment if the assignment of a new
base period were approved. Our
intention was to emphasize that any
adjustment for indirect costs increases
above the target rate of increase
limitation would be limited to those
increases that resulted from significant
changes in patient care services. We did
not intend to imply that no increases in
indirect costs would be recognized. We
would recognize without additional
justification increases in allowable
indirect costs equivalent to the
percentage increase in the target rate.
However, if the allowable indirect costs
increase at a higher rate than the target
rate percentage increase, we would not
include the additional indirect costs in

the target rate adjustment unless the
hospital documents that they are
directly related to a significant change
in the patient care services.

F. Medicare Catastrophic Coverage
Repeal Act of 1909

1. Medicare Catastrophic Coverage Act
of 1988

After publication of a May 27.1988
proposed rule concerning changes to the
inpatient hospital prospective payment
system and FY 1989 rates, on July 1.

1988, Public Law 100-360 was enacted.
Under section 101(2) of 100-360,
essentially unlimited inpatient hospital
days were made available for Medicare
beneficiaries (except for the inpatient
psychiatric day limitation) effective for
services furnished on or after January 1,

1989. Before enactment of Public Law
100-360, a beneficiary was entitled to 90
days of inpatient hospital services
during each spell of illness. In addition,
a beneficiary could draw from a lifetime
reserve of GO days if that beneficiary’s
inpatient hospital days exceeded 90
days in a spell of illness. Under that
system, a hospital could bill the
beneficiury or the beneficiary’s third
party insurer for inpatient hospital
services furnished to a beneficiary
whose inpatient hospital benefits were
exhausted.

Hospitals and hospital associations
expressed concern to Congress that they
would be financially disadvantaged by
not being permitted to bill beneficiaries
or their third party insurers for inpatient
hospital services that, before enuctment
of Public Law 100-360, were not covered
because beneficiaries had exhausted
their inpatient hospital benefits.
Therefore, Public Law 100-360 required
the Secretary to take into consideration
reductions in payments by Medicare
beneficiaries to prospective payment
hospitals due to the elimination of a day
limitation on inpatient hospital services
caused by the provisions of section 101
of Public Law 100-360 when establishing
the prospective payment rates, outlier
thresholds, and diagnosis related group
(DRG) weighting factors for FY 1989. In
addition, section 104(c)(2) of Public Law
100-360 required the Secretary, when
increasing the target amounts for
hospitals excluded from the prospective
payment system, to take into
consideration on a hospital-specific
basis, the same reduction in payments to
excluded hospitals for cost reporting
periods beginning on or after October 1,
1988.

2. The September 30,1988 Final Rule

On September 30,1988, we published
the final rule (53 FR 38470) on changes to

the inpatient hospital prospective
payment system and 1989 rates. In
that rule, we implemented the provisions
of Public Law 100-380, pertaining to the
adjustment in the prospective payment
system and in the rate-of-increase limit
to take into account the impact of
catastrophic coverage. We requested
public comment on those changes.

We determined that the prospective
payment system would automatically
adjust to the expansion of inpatient
hospital benefits as increased payments
would occur automatically as DRG
payments were made for entire stays,
including outlier portion thereof, that
previously would not have been
covered. Therefore, we concluded no
explicit adjustments were necessary.

With respect to the adjustment in the
rate-of-incrcase limit, we provided in the
September 30,1988 final rule that
hospitals and hospital units excluded
from the prospective payment system
may apply for increases to their target
rale 9 to correct any distortion due to
higher costs caused by the expansion of
inpatient hospital benefits due to the
provisions of section 101 of Public Law
100-360. We provided for the adjustment
under section 104(c)(2) of Public Law
100-360 to be available to any hospital
that experiences a distortion due to
increased costs caused by elimination of
the inpatient coverage limitation,
whether or not the hospital actually
exceeds its target rate. This is because
any distortion would be due to the effect
of section 101 of Public Law 100-300 and
would be essentially unrelated to the
actions of any individual hospital—it is
a circumstance that could potentially
affect all hospitals to some degree. We
provided that a hospital may request a
target amount adjustment directly from
its intermediary. The target amount
would be adjusted for the impact of any
reduction in Medicare payments that the
hospital experienced because of the
previous inpatient day benefit
limitation. The adjustment would be
based on the estimated incremental
costs of care historically furnished to
Medicare beneficiaries after they had
exhausted benefits during an inpatient
stay.

We provided that a hospital may
request an adjustment from its
intermediary after the effective date of
the September 30,1988 final rule (that is,
October 1,1988) but no later than 180
days after the closing date of the
hospital’s first cost reporting period
beginning on or after October 1.1908. In
order for its request to be considered,
we provided that a hospital must submit
a written request for an adjustment to
its target amount under authority of this

35006 Federal Register / Vol, 55, No. 171 / Tuesday. September 4, 1990 / Rules and Regulations

provision along with the following
supporting documentation:

• A statement from the hospital
stating whether the adjustment is to be
based on its historical experience in its
base period or its last cost reporting
period beginning before October 1,1988.
(If this period is not of at least 12
months in duration, multiple consecutive
cost reporting periods comprising at
least 12 months must be used.)

• Billing data for the period that
serves as the basis for the adjustment
documenting the following:

—The number of hospital inpatient days
furnished to Medicare beneficiaries for
which no payment was made because the
beneficiary had exhausted Part A hospital
benefits. (Excluded from the count are days
for stays that were not covered in their
entirety, since such stays will be paid as
discharges after January 1.1989.)

—The ancillary charges for services

furnished on the days after the beneficiary
had exhausted Part A hospital benefits, as
counted above.

Upon receipt of a request for an
adjustment by a hospital that includes
the required information, the
intermediary will verify the data.
submitted by the hospital regarding
beneficiary status and exhaustion of
inpatient hospital entitlement. (Medical
necessity of acute care for inpatient
days following exhaustion of
entitlement would be assumed.)

In order to adjust the target amount,
the intermediary will—

• Estimate the total inpatient
operating costs for services furnished to
Medicare beneficiaries, including the
costs of services furnished after a
beneficiary had exhausted benefits;

• Take the ratio of the above-
determined costs to the Medicare
allowable inpatient operating costs for
the period from which the hospital’s
data are derived; and

• Apply this ratio to the otherwise
applicable target amount for cost
reporting periods beginning on or after
October 1,1988.

We indicated that the intermediary
will determine the amount of any
appropriate adjustment and notify the
hospital of its determination within 90
days of the date of receipt of the
request.

3. The Family Support Act of 1988

Subsequent to the publication of the
September 30,1988 final rule, the Family
Support Act of 1988 (Pub. L 100-485)
was enacted on October 13,1988.

Section 608(d) of Public Law 100-485
made several technical corrections to
Public Law 100-360, including the
following changes concerning provisions

of Public Law 100-360 implemented in
the September 30,1988 final rule:

• Section 608(d)(3)(D) of Public Law
100-485 revised section 104(c)(2) of
Public Law 100-360 to change the date
for implementing the target rate
adjustments from cost reporting periods
that begin on or after October 1,1988 to
portions of cost reporting periods
occurring on or after January 1.1989.

• Section 608(d)(3)(E) of Public Law
100-485 revised section 104(c)(2) of
Public Law 100-360 to specifically
provide that an adjustment for any
distortion due to higher costs caused by
the expansion of inpatient hospital
benefits is to be made whether or not a
hospital or unit actually exceeded its
target rate.

4. The Medicare Catastrophic Coverage
Repeal Act of 1989 and the April 20,1990
Final Rule With Comment

The Medicare Catastrophic Coverage
Repeal Act (Pub. L. 101-234) was
enacted on December 13,1989. Under
section 101(c) of Public Law 101-234,
any adjustment in payments to hospitals
under the prospective payment system
as provided for in section 104(c)(1) of
Public Law 100-360 ended effective with
discharges occurring on or after January
1,1990. Under section 101(c)(2)(A)(i) of
Public Law 101-234, the adjustment to
the target rates for hospitals excluded
from the prospective payment system,
as provided for in section 104(c)(2) of
Public Law 100-360, was eliminated
effective with portions of cost reporting
periods occurring on or after January 1,
1990. In addition, section 101(c)(2)(A)(ii)
of Public Law 101-234 added
clarification that in making any
adjustment under section 104(c)(2) of
Public Law 100-360, the adjustments to
hospital target rates must be made
disregarding whether a beneficiary had
exhausted his or her Medicare benefits
prior to January 1,1989.

In the April 20,1990 final rule with
comment that also implemented several
provisions of Public Law 101-239
concerning mid-year changes to the
prospective payment system, we took
into account the provisions of section
104(c)(2) of Public Law 100-360 as
amended by section 608(d) of Public
Law 100-485 and by sections 101 (c) and
(d) of Public Law 101-234 concerning the
temporary elimination of the day
limitation on inpatient hospital services.

In addition, we requested comment on
the transition provisions of Public Law
101-234 that went into effect on January
1,1990 and that were included in the
April 20,1990 final rule with comment.

We received no comments concerning
the adjustments to prospective
payments under Public Law 101-234. We

have received 16 items of
correspondence containing comments
concerning the application of the
transition provisions for target rate
adjustments under Public Law 100-360.

Comment: A commenter suggested
that an extension of the 180-day period
for hospitals to file for an adjustment to
their target rate under 5 413.40(i) is
needed since the information hospitals
must provide with their application has
been changed slightly by the April 20
final rule with comment.

Response: We do not believe that
hospitals require an additional 180 days
to secure the minor changes in data
required by the April 20,1990 final rule.
Moreover, once a hospital has filed for
an adjustment under § 413.40(i). the
hospital still has an opportunity to
furnish additional information.
Adjudication by the Medicare fiscal
intermediary would not take place until
the hospital has adequate time to secure
any additional data. This has been the
case with all exception requests since
the hospital cost limits were originally
imposed.

Comment: Due to cash flow problems,
several commenters suggested that if a
cost report is filed by a hospital
requesting a target amount adjustment
(particularly if the hospital is seeking
relief under 5 413.40(i)j, repayment of
any amount owed by the hospital for the
cost reporting period should be deferred
until the adjustment request is
adjudicated.

Response: Delaying repayment of
amounts owed by providers at the time
of cost report filing would be
inappropriate in light of requirements
imposed by the Federal Claims
Collection Act and the appeals process
under section 1878 of the Act and
5 405.1803 of the regulations. Neither
would it be an appropriate practice to
allow automatic delay of cost report
filing requirements beyond the 90 days
already allowed after the close of the
cost reporting period under
$ 413.24(f)(2). Due to the unique nature
of Public Law 101-234, we provided
special time-limited procedures to allow
immediate interim payment rate
adjustments and delays in filing cost
reports for the periods affected by
catastrophic coverage. We believe our
temporary procedural changes
adequately addressed this one-time
problem. No ongoing changes to the
process for target rate revisions under
§ 413.40 is called for based on current
program experience since a hospital can
request an adjustment in its target
amount and interim rate before the cost
report is due as long as the hospital

Federal Register / Voi. 55. No. 171 / Tuesday. September 4, 1990 / Rules and Regulations 36f 07

provides adequate cost data and
analysis for the affected period.

Comment: A commenter suggested
that some long-term care hospitals
experience an annual crisis due to the
current regulatory requirements to
determine non-catastrophic adjustment
requests on an annual basis, to base
approval of such requests on whether
costs exceed the target rate, and to
process those requests separately from
catastrophic adjustment requests.

Response: Unless the circumstances
giving rise to the exception or
adjustment are permanent, we grant
only a one year adjustment to the target
amount. As we have advised in
responding to comments on previous
changes in adjustment and exceptions
policies, we do not believe that it is the
intent of the statute to create incentive
payment situations in determining the
amount of an adjustment to which a
hospital may be eligible. We have found
that the circumstances that cause
hospitals to exceed their target amount
vary significantly from year-to-year. As
a result, an adjustment granted in one
year are often not applicable in
subsequent cost reporting periods. If we
were to revise permanently the target
amount for temporary cost distortions or
circumstances that result in fluctuating
costs from year-to-year, we would
create the potential for inappropriate
incentive payments. However, we
frequently direct intermediaries to make
interim payment and subsequent year
adjustments to the target amount
without further HCFA involvement as
long as the circumstances occurring in
the subsequent period are comparable to
those giving rise to the initial
adjustment.

We note that the conditions
established by statute for an adjustment
for the effects of Medicare catastrophic
coverage changes are not comparable to
the conditions under which other
exceptions to the target amounts are
granted. The catastrophic adjustment is
granted without regard to whether the
hospital exceeds its target amount.
Recognizing the impact of the
catastrophic coverage provision on long¬
term care hospitals and other hospitals
with long slay cases, we have taken
many procedural steps to alleviate their
cash flow difficulties. We issued
instructions to Medicare fiscal
intermediaries that initiated parallel
processing of catastrophic and other
exception adjustment requests. We
temporarily extended cost reporting
submission dates. We provided
instructions to allow submission of
preliminary data to make interim
adjustment determinations in order to

reduce or eliminate provider repayments
on tentative settlement of cost reports.

We do not believe that the process for
exceptions and adjustments need further
revision. In addition, with repeal of
Public Law 100-360 these commenters
concerns will be substantively resolved
in the future.

Comment: One commenter objected to
an implied requirement to count
discharges for patients who had
exhausted Part A benefits in a cost
reporting period other than the one used
for adjustment under § 413.40{i).

Response: Depending on the year
involved, we have found that hospitals
may have recorded discharges for
Medicare purposes either at the time of
Part A exhaustion or at actual physical
discharge from the hospital. This
inconsistency occurred due to the fact
that billing instructions for Part A
discharges from acute care hospitals
were revised in 1984 to conform to
prospective payment system
requirements. However, the policy
applicable at all times to excluded
hospitals and units is to record the
discharge at the time the patient
physically leaves the facility. For
purposes of determining discharges in
the year used to determine the
catastrophic adjustment, a discharge
should be recorded only at the time a
beneficiary was physically discharged
from the facility. For patients who
exhausted Part A benefits in a cost
reporting period other than the one used
for the catastrophic adjustment, a
discharge will be counted if the patient
was physically discharged during the
adjustment cost reporting period. If the
discharge was properly recorded for that
year, a second discharge would not be
counted in determining the adjustment.

Comment: One commenter alleged
that we were applying an unwritten
policy of requiring beneficiaries to use
all lifetime reserve days for purposes of
determining the point at which days
after exhaustion of benefits could be
counted for use in making the
adjustment under $ 413.40(i).

Response: The Medicare program has
had longstanding rules at § 409.65
regarding the use of lifetime reserve
days when a beneficiary has exhausted
the 90 regular benefit days of inpatient
hospital service. Those rules require that
beneficiaries or their legal
representatives file a statement of
election not to use such days. Only in
the case in which a hospital's average
daily charge is equal to or less than the
applicable coinsurance amount can an
election not to use the lifetime reserve
days available be considered automatic.

or deemed, without the filing of an
election statement.

Medicare fiscal intermediaries have
found that some hospitals requesting an
adjustment under 5 413.40(i) have not
been able to document for the benefits
exhausted cases used to determine the
amount of the adjustment either that the
beneficiary elected not to use his or her
lifetime reserve days or that the average
daily charge was less than the
coinsurance amount. As a result, a
determination must be made regarding
whether the available lifetime reserve
days should have been utilized in these
cases. The adjustment must include only
those costs for which Medicare
additional days of care would be paid
for under catastrophic coverage rules
that would not have been payable in the
absence of catastrophic coverage. We
have not applied an unwritten policy in
determining the days after exhaustion of
benefits in making the catastrophic
adjustment to the target rates. However,
we are holding in abeyance adjustments
for days that potentially could have
been lifetime reserve days pending the
intermediary's determination that the
hospital properly ended Medicare
coverage for beneficiaries when lifetime
reserve days may have been available.

We are currently investigating
whether these hospitals correctly
applied the previsions of § 409.65 in not
billing Medicare for inpatient days
which could have been covered as
lifetime reserve days. If the days should
have been billed as lifetime reserve
days, the number of inpatient days after
exhaustion of Part A benefits that are
used to determine the additional days of
care that would be covered under the
catastrophic provision would be
reduced. We have asked the fiscal
intermediaries to review each hospital's
request for a catastrophic adjustment
using the appropriate criteria in § 409.65
to determine the appropriate treatment
of potential lifetime reserve days.

Unless the beneficiary elected not to use
these days or was properly deemed to
have made such an election, these days
would count as Medicare covered days
under pre-catastrophic coverage rules. If
the file documents that the beneficiary
elected not to use available lifetime
reserve days (or was properly deemed
to make such an election), these days
would count as additional days of care
available under catastrophic coverage.

Comment: Commenters noted that the
rules providing for implementation of
the revised target amount under Public
Law 106-360 did not include application
of the transition provisions of section
101(c)(2)(B) of Public Law 101-234. They
asked that the final rule be revised to

3s008 Federal Register / Vol. 55, No. 171 / Tuesday, September 4, 1990 / Rales and Regulations

provide for consideration of this
provision.

Response: We concur with the
comments on the transition provisions of
Public Law 101-234. In accordance with
section 101(c)(2)(B) of Public Law 101-
234, we are revising the regulations to
require that the Public Law 100-360
target rate revision will be applied to
Medicare discharges occurring on or
after January 1,1990, if those cases were
admitted as inpatient Medicare
beneficiaries before that date. We note
that the full adjusted target rate (based
on unlimited hospital days) will apply to
these discharges even though the benefit
period limitation will apply to the
portion of the stay occurring in 1990.

Comment: Several commenters
recommended that the days, costs, and
discharges for Medicare patients be
included in the target rate adjustment
even when those individuals had
exhausted their eligibility to Medicare
Part A benefits prior to admission. The
commenters cited the legislative history
of Public Law 101-234 as support for
their position that we should include the
cost of these patients in the catastrophic
adjustment. Several commenters
presented data from selected hospitals
indicating that individuals who had
exhausted Medicare inpatient hospital
benefits prior to admission may have
longer length of stays than eligible
Medicare beneficiaries who exhausted
their inpatient hospital benefits after
admission.

Response: Section 101(c)(2)(A)(ii) of
Public Law 101-234 clarified that the
adjustment to the target amount should
be made without regard to whether a
beneficiary had exhausted benefits prior
to January 1.1989. Our policies do
provide for including the days and cost
for Medicare beneficiaries who
exhausted inpatient hospital benefits
after admission, but prior to January 1,
1989. We are presuming that since at
least a portion of the stay was covered
by Medicare, the stay would have been
covered in its entirety in the absence of
the precatastrophic limitation on
inpatient hospital days. If an individual
was admitted after inpatient hospital
benefits had been exhausted, however,
that patient is not a Medicare
beneficiary at admission. In such cases,
there is no way for us to determine
whether the patient received a hospital
level care throughout the stay. Thus,
although some evidence was submitted
to indicate these patients may have a
longer length of stay, no evidence was
submitted that indicate that the longer
stays would have been covered by
Medicare and that the cost per
discharge for the portions of stays that

would have been covered was higher
than for beneficiaries who exhausted
benefits after admission.

Although such individuals’ costs may
not be included in the target rate
adjustment under § 413.40(i), their costs
would be paid for under the catastrophic
provisions once Medicare coverage was
reestablished after January 1,1989 if
they remained an inpatient and required
hospital-level care. Thus, hospitals
would receive payments for the costs of
such inpatients once Medicare
beneficiary status was reestablished
under Public Law 100-380. This policy is
consistent with the amendment made by
section 104(c)(2)(A)(ii) of Public Law
101-234, which amended section
104(c)(2) of Public Law 100-360 to
require that the adjustment to the target
rate for discharges occurring in portions
of cost reporting periods beginning on or
after January 1.1989 and before January
1,1990 be made without regard to
whether such beneficiaries exhausted
their benefits before January 1,1989. The
adjusted target rate is also to apply to
any discharge occurring on or after
January 1,1990 if the admission
occurred before January 1,1990. The
adjusted target rate is applicable to all
Medicare discharges occurring within
the specified timeframes, regardless of
whether benefits were exhausted before
January 1,1989 or before admission to
the hospital. As a result of these factors,
we do not find it appropriate to revise
our rules regarding exclusion of costs for
patients who had exhausted Medicare
benefits prior to admission in revising
the target rate for catastrophic purposes.

III. Changes to DRG Classifications and
Weighting Factors

A. Background

Under the prospective payment
system, we pay for inpatient hospital
services on the basis of a rate per
discharge that varies by the DRG to
which a beneficiary’s stay is assigned.
The formula used to calculate payment
for a specific case takes an individual
hospital’s payment rate per case and
multiplies it by the weight of the DRG to
which the case is assigned. Each DRG
weight represents the average resources
required to care for cases in that
particular DRG relative to the average
resources used to treat cases in other
DRGs.

Congress recognized that it would be
necessary to recalculate the DRG
relative weights periodically to account
for changes in resource consumption.
Accordingly, section 1886(d)(4)(C) of the
Act requires that the Secretary adjust
the DRG classifications and weighting
factors annually beginning with

discharges occurring in FY 1988. These
adjustments are made to reflect changes
in treatment patterns, technology, and
any other factors that may change the
relative use of hospital resources. The
changes to the DRG classification
system and the recalibration of the DRG
weights for discharges occurring on or
after October 1,1990 are discussed
below.

B. DRG Reclassification
1. General

Cases are classified into DRGs for
payment under the prospective payment
system based on the principal diagnosis,
up to four additional diagnoses, and up
to three procedures performed during
the stay, as well as age, sex, and
discharge status of the patient. The
diagnostic and procedure information is
reported by the hospital using codes
from the International Classification of
Diseases, Ninth Edition, Clinical
Modification (ICD-9-CM). The
intermediary enters the information into
its claims system and subjects it to a
series of automated screens called the
Medicare Code Editor (MCE). These
screens are designed to identify cases
that require further review before
classification into a DRG can be
accomplished.

After screening through the MCE and
any further development of the claims,
cases are classified by the GROUPER
software program into the appropriate
DRG. The GROUPER program was
developed as a means of classifying
each case into a DRG on the basis of the
diagnosis and procedure codes and
demographic information (that is, sex.
age, and discharge status). It is used
both to classify past cases in order to
measure relative hospital resource
consumption to establish the DRG
weights and to classify current cases for
purposes of determining payment.

Currently, there are 477 DRGs in 23
major diagnostic categories (MDCs).
Most MDCs are based on a particular
organ system of the body (for example.
MDC 6. Diseases and Disorders of the
Digestive System); however, some
MDCs are not constructed on this basis
since they involve multiple organ
systems (for example, MDC 22, Burns).

In general, principal diagnosis
determines MDC assignment. Within
most MDCs, cases are then divided into
surgical DRGs (based on a surgical
hierarchy that orders individual
procedures or groups of procedures by
resource intensity) and medical DRGs.
Medical DRGs generally are
differentiated on the basis of diagnosis
and age. Some surgical and medical

Federal Register / Vol. 55. No. 171 / Tuesday. September 4. 1990 / Rules and Regulations 36003

DRGs are further differentiated based
on the presence or absence of
complications or comorbidities
(hereafter CC) only. Generally,
GROUPER does not consider other
procedures: that is, nonsurgical
procedures or minor surgical procedures
generally not done in an operating room
are not listed as operating room (OR)
procedures in the GROUPER decision
tables. However, there are a few non-
OR procedures that do affect DRG
assignment for certain principal
diagnoses, such as extracorporeal shock
wave lithotripsy for patients with a
principul diagnosis of urinary stones.

We proposed to make several changes
to the DRG classification system. These
proposed changes and the comments we
received concerning them as well as our
responses are set forth below. In
addition to comments related to each of
the specific proposed DRG classification
changes, we received three general
comments, as follows:

Comment: One commenter objected to
the 2-month comment period as being
unreasonable to assess the impact of
proposed changes in DRGs. Because the
GROUPER software will not be updated
until the implementation of the final
rule, this commenter had insufficient
time to analyze the exact impact of the
proposed DRG changes.

Response: Section 1866(e)(5) of the
Act requires the Secretary to publish, by
the May 1 before each fiscal year, the
Secretary’s proposed recommendation
on an update factor for that fiscal year,
and a final recommendation by
September 1 of that year. Section
1386(d)(4)(C) of the Act also requires the
Secretary to adjust the DRG
classification and weighting factors
annually. It has been our practice to
combine these requirements and to
publish a proposed rule by May 1 and a
final rule by September 1 of each year
that set forth our recommendations on
the update factor, our changes to the
DRGs, and any other changes to the
prospective payment system we believe
are necessary.

Publication of a proposed rule
approximately May 1 does not allow for
a comment period of more than 60 days,
since we must have time to analyze and
respond to public comment before
publication of the final rule. In addition,
we do not believe publication of a
proposed rule before May 1, which
would allow a longer comment period, is
practical because it would not allow us
time to accumulate sufficient data for
statistical analysis, and. thus, our
proposals could not be based on the
most current data possible.

Comment We received one letter
commenting that the proposed changes

in the length of stay for the orthopedic
procedures, as set forth in the proposed
rule, were not in the best interest of
patient care and, in the long term, may
add to the cost of caring for these
patients by encouraging premature
discharge. The commenter requested
that we reconsider these lengths of stay.

Response: Length of stay figures are
derived from the Medicare inpatient
discharge claims data; the figures in
Tables 5 and 7 (which report length of
stay) were based on FY 1989 data. Table
5 presents the geometric mean length of
stay, which is used only to establish the
outlier threshold and determine
payment for day outlier cases. Table 7
presents the arithmetic mean length of
stay, which is used solely for illustrative
purposes. These length of stay Figures
are informational only and are not a
requirements of the prospective
payment system. Under the prospective
payment system, payment is made on an
established amount per discharge by
DRG and is not based on the length of
time patients remain in the hospital. The
prospective payment system does not
place a limit on a patient's length of stay
in a hospital. Further, the length of stay
is not a factor in calculating the
payment rate (other than in outlier
cases) or in establishing the DRG
weight.

Comment: One commenter offered
suggestions for improving the integration
of new technology into the prospective
payment system. The commenter
believes that when HCFA revises DRG
classifications and weights, it relics on
resource consumption and overlooks
other significant changes, such as new
technology and changes in treatment
patterns. The commenter believes that it
is inappropriate to assign new
technology-specific procedures to
existing DRGs merely because costs are
similar. The commenter suggests that
HCFA use "clinical coherence" as an
indicator of appropriate procedure
grouping within a DRG. The commenter
also suggests that new DRGs be
considered if a new technology or
treatment pattern offers significant
benefits not otherwise available.

The commenter also believes that the
MEDPAR may be an inaccurate
reflection of costa associated with new
technology and treatment patterns. The
commenter suggests that HCFA use a
broader data base including non-
Medicare cases and encourage the
submission of data on treatment
patterns and new medical products by
hospitals, researchers, technology
manufacturers, and medical
practitioners.

Response: HCFA considers the effects
of new technology and changes in

practice patterns on resource use when
revising the DRG classification system
and recalibrating the DRG relative
weights. New technologies are
incorporated into the prospective
payment system based on the types of
cases and procedures they are used in,
using the procedure and diagnosis codes
on the Medicare bill. Cases are assigned
to a DRG that contains cases that are
similarly clinically and in terms of
resource use. One example of DRG
classification changes made based on
new technology and changes in
treatment patterns is MDC 5, Diseases
and Disorders of the Circulatory System.
(See section II.B.3 of this preamble.)

The annual prospective payment
system update factor is meant to
recognize, among other factors, the
impact of new technologies. In
determining our recommended update
factor, as required by section 1886(e)(4)
of the Act, we include factors for
changes in productivity and science and
technology advancement as well as
changes in practice patterns. (See
appendix C of this final rule for our FY
1991 recommended update factor.) Also,
the DRG weighting factors are
recalibrated each year based on the
latest available charge data in order to
ensure the distribution of Medicare
payments across DRGs based on
average resource costs. As charges for
new technologies are incorporated into
our data base, the DRG weight reflects
the changes in the relative resource
intensity of specific DRGs. We note that
Medicare payment for capital-related
technology costs are made as a pass¬
through on a reasonable cost basis and.
therefore, are not included in the DRG
payment.

The MEDPAR file consists of
Medicare bill information that is
reported on the uniform bill form (UB-
82) using a standard set of instructions.
The diagnosis and procedure codes
included on the bill are subject to a
review for accuracy by the PROs. We do
receive information on new technologies
from hospitals, medical administrators
and staff, researchers, and
manufacturers and consider these data
in our ongoing analysis of DRG
classification. While this information is
useful in our consideration of DRG
classification, it is not uniform in several
respects such as the time period and
patient population covered or the factors
included in the figures reported and.
therefore, would not be useful in
recalibrating the DRG relative weights.
Although there is a 2-year time lag in the
MEDPAR data used to analyze and
recalibrate the DRG weights, we believe
there would be a time lag involved in

36010 Federal Register / Vol. 55. No. 171 / Tuesday, September 4, 1990 / Rules and Regulations

collecting any set of comprehensive and
accurate data. We believe that the
MED PAR is the best source available
because it consists of data that are
uniform across all cases and are specific
to the Medicare population.

2. Creation of New DRGs

In order to improve payment equity,
we proposed to revise the DRG
classification system by adding 13 new
DRGs. Two of these DRGs are
associated with the restructuring of
MDC 5 (Diseases and Disorders of the
Circulatory System) and are discussed
below in section U1.D.3 of this preamble.
The other 11 DRGs affect the assignment
of the following types of cases: bone
marrow transplants, liver transplants,
tracheostomies, multiple significant
trauma, and human immunodeficiency
virus (HIV) infections. These are
significant changes that we believe will
increase the amount of variation in
resource costs explained by DRGs by
approximately 13 percent.

Many of the changes we proposed
build on the method of case
classification used in New York State,
which established a prospective
payment system for all payers (except
Medicare and CHAMPUS) effective
January 1,1988. The New York system is
based on the Medicare prospective
payment system; however, New York
State, in conjunction with 3M/Healtli
Information Systems (HIS) (formerly.
Health Systems International (HSI)).
modified the Medicare DRGs to address
the needs of the New York non-
Medicare population. We modeled our
proposed DRG changes for
tracheostomy, multiple significant
trauma, and ! 1TV cases on the New York
system with modifications for the
Medicare population. These DRG
additions and the other DRGs we
proposed to add (other than the MDC 5
changes) are set forth below in this
section.

Previously. Medicare discharges were
generally assigned to MDCs based on
principal diagnosis and then further
assigned to the surgical or medical
DRGs included in those MDCs.

1 lowever. we proposed to assign
discharges to the proposed DRGs for
liver transplants, bone marrow
transplants, and tracheostomies based
on the procedure codes rather than first
assigning the discharges into one of the
current MDCs based on principal
diagnosis.

The detailed description of the new
DRGs are set forth below.

a. Liver Transplants. Medicare
coverage of liver transplants for children
under the age of 18 for certain specified
conditions has been in effect since

February 9.1984. In a notice published
in the Federal Register on March 8,1990
(55 FR 8545), we proposed to expand
coverage of liver transplants to adults
with certain specified conditions. In that
proposed notice, we stated that the
effective date of coverage for these liver
transplants would be March 8,1990
under certain circumstances. Medicare
payment will continue to be made for
children’s liver transplants for biliary
atresia (diagnosis code 751.61) and
would be expanded to adult liver
transplants performed in approved
facilities for the following covered
conditions. {The diagnosis code to which
the condition is assigned is also noted.)

• Primary hemochromatosis (275.0)

• Wilson’s disease (275.1)

• Alpha*1 antityrypsin deficiency
disease (277.6)

• Alcoholic cirrhosis (571.2)

• Postnecrotic cirrhosis (Hepatitis B.
antigen negative) (571.5)

• Primary biliary cirrhosis (571.6)

• Primary sclerosing cholangitis
(578.1)

These cases currently group to MDC 7
and MDC 10. Within MDC 7, liver
transplants are assigned to DRGs 191
and 192) Pancreas, Liver and Shunt
Procedures) *. Liver transplant cases in
MDC 10 group to DRG 468 if no surgical
procedure related to the patient’s
principal diagnosis is performed.

Since Medicare coverage of liver
transplants has now been proposed for
adults, we proposed to add a new DRG
480 (Liver Transplant) exclusively for all
liver transplants (whether adult or
juvenile). \Ve proposed to assign
Medicare discharges to DRG 480 only if
either procedure code 50.51 (Auxiliary
liver transplant) or 50.59 (Other
transplant of liver) is performed at an
approved liver transplant center and
any one of the covered conditions (listed
above) is either a principal or secondary
diagnosis. These conditions are reported
under the following diagnosis codes:
275.0, 275.1. 277.6, 571.2, 571.5, 571.6,

5781, or 751 61.

As is currently our policy for organ
acquisition costs in kidney and heart
transplant cases paid under Medicare,
we proposed to pay for liver acquisition
costs separately on a reasonable cost
basis. We proposed to revise
§5 412.2(d)(4) and 412.113(d), which
describe payment for kidney acquisition
costs as a pass-through, to include heart
and liver acquisition costs, also. We
received no comment on the proposed

' A single title combined with two DRG numbers
is used to signify pairs, the first DRG of which is
cases with CC and the second of which is cases
without CC. If a third number is included, It
represents cases of patients who are nge 0 - 17 .

changes in the regulations and have
included them as final in this document.
However, we did receive comments
concerning the treatment of bone
marrow acquisition charges, which are
discussed in section III.B.2.b of this
preamble. In addition, we received
several comments on our proposed liver
transplant DRG as follows:

Comment: One commenter was
concerned with the treatment of liver
transplant cases in non-Medicare-
approved liver transplant centers.
Specifically, the commenter is interested
in how the GROUPER identifies whether
a hospital is a Medicare-approved liver
transplant center. If the hospital is not
an approved center, the commenter
wants to know if the patient would be
assigned to DRG 480 (Liver Transplant)
but not allowed payment, or if a portion
of the hospital stay would be covered by
Medicare.

Response: Once the expanded
coverage for liver transplants is final.
Medicare payment will be made to
approved transplant centers for covered
liver transplants assigned to DRG 480.
The Medicare Code Editor (MCE), not
the GROUPER, will first identify the
liver transplant cases by the procedure
code (50.51 or 50.59); then, the
intermediary will check the provider
number to determine if the hospital is a
Medicare-approved liver transplant
center and the effective date for
approval. If the other Medicare criteria
for coverage are met, payment will be
made for those cases in which the
hospital is an approved transplant
center and the transplant is performed
on or after the approval date. If the
hospital is not approved, and the liver
transplant is the sole purpose of the
admission, the bill is returned to the
provider, and a “no pay bill” is
requested. Neither physician services
nor inpatient services associated with
the transplantation procedure would be
covered in this case. A case such as this
would be assigned to DRG 480, but no
Medicare payment would be made.
Where a patient is admitted to a
nonapproved transplant center for
treatment of a liver or other condition
and a decision to perform a liver
transplant is made at a date subsequent
to the admission, the bill will be
processed through the GROUPER and
assigned to the appropriate DRG for the
covered part of the hospital stay.
Therefore, a portion of the hospital stay
not related to the transplant could be
covered by Medicare as long as the
reason for admission was not to receive
a liver transplant

Comment: A commenter believes that
the linkage between Medicare coverage

Federal Register / Vol. 55, No. 171 / Tuesday, September 4, 1990 / Rules and Regulations 36011

policy and the DRG classification
system is inappropriate and will cause a
great deal of confusion among other
users of the DRG classification system.
The purpose of the DRG classification
system is to classify patients, not to
implement coverage policy. If a patient
receives a liver transplant, the patient
should be classified into the liver
transplant category. If Medicare chooses
not to cover the liver transplant or to
cover the liver transplant for patients
only with certain diagnoses, this should
be a separate coverage decision.

Response: The GROUPER software
program classifies all cases and is not
limited by Medicare coverage policy.

The prospective payment system is
based on reported diagnosis and
procedure codes and is linked to
Medicare coverage policy through the
MCE for Medicare payment purposes.

The MCE will be used to screen liver
transplant cases for Medicare coverage.
In the absence of the MCE edit, the
GROUPER would assign all liver
transplant cases to the liver transplant
DRG regardless of the diagnosis. Thus,
the coverage decision and the
classification issue are handled
separately.

Comment: One commenter was
concerned that 18 of the 24 cases used in
determining the proposed weight did not
have an acquisition charge listed and
that this might indicate that these may
not be liver transplant cases, but
miscoded resections or shunt
procedures. In the commenter’s
experience, it is accepted practice to
maintain organ acquisition charges as a
separate line item when submitting bills
for payment.

Response: Organ acquisition costs,
except for bone marrow acquisition
costs, are paid as a pass-through on a
reasonable cost basis under Medicare;
thus, the DRG payment is not designed
to cover the acquisition cost. Our policy
has always been to assume that every
bill for a transplant procedure also has
included charges for organ acquisition. If
no acquisition charge is separately
identified on the bill, we have assumed
that it was included in total charges.
Thus, if a bill clearly shows an
acquisition charge for an organ, we have
deducted that charge prior to setting the
DRG weights. If a bill does not
separately identify an acquisition
charge, we have deducted an estimate of
those charges from the bill.

Upon further investigation, we have
concluded that some transplant bills
may not include acquisition charges.

1 lospitals that procure the organ for
transplantation in their own facility
should show the organ acquisition
charge on the transplant patient’s

Medicare bill. However, in cases where
the organ is acquired from another
facility through an organ procurement
agency, the transplanting hospital may
not include the organ acquisition charge
a 9 a line item or in its total charges on
the patient’s bill. Therefore, we are
revising our methodology for adjusting
the total charges for acquisition charges.
We will no longer impute an organ
acquisition charge for a bill that does
not include a specific separate charge
for organ acquisition. Only those cases
showing an organ acquisition charge
will have that charge subtracted from
the total charges prior to using the
charges in recalibrating the DRG weight.

As for the possibility that these cases
are miscoded, we reviewed our data to
determine if the beneficiaries were
inpatients of transplant centers. We
identified three cases involving
hospitals that are not transplant centers
whose bills included a liver transplant
procedure code. We removed these
cases from the data base since, once the
expanded coverage for liver transplants
is final, payment will be made only to
approved transplant centers.

Comment: One commenter. while
agreeing that a separate DRG for liver
transplants is appropriate, was not
convinced that the category is
sufficiently well-defined for case-level
prospective payment. The commenter
also questioned if HCFA had evaluated
whether separate DRG categories are
indicated for different age patients or for
multiple transplant patients.

Response: We are required by
provisions in section 1886(d) of the Act
to pay for covered inpatient services
furnished by an acute care hospital on a
prospectively-determined amount per
discharge that varies by the DRG to
which the beneficiary’s case is assigned.
As with DRG 302 (Kidney Transplant)
and DRG 103 (Heart Transplant), the
proposed DRG 480 (Liver Transplant) is
well-defined clinically by the transplant
procedure, which is unique from other
surgical procedures. Also, the amount of
resources used for liver transplants
differentiates them from other types of
cases in other DRGs. The alternative to
a separate DRG for liver transplants
would be to continue to classify them
with less resource-intensive cases.
Payment on a reasonable cost basis i9
not an option under the law.

We do not believe that it is
appropriate at this time to propose a
DRG for multiple transplant patients or
for different age groups given our limited
experience with Medicare liver
transplant cases. The cases used to
calculate the proposed DRG weight, as
well as the final weight, included a

multiple transplant case and patients
ranging from 23 to 69 years of age.

Comments: Several commenters
expressed concern about the 34 percent
reduction in the DRG weight of 21.0000
for liver transplants announced in the
Medicare proposal to cover adult liver
transplants on March 8,1990 (55 FR
8546) to the weight of 13.8965 as set forth
in the May 9,1990 prospective payment
system proposed rule (55 FR 19429).

These commenters questioned the data
used to determine these weights. Some
commenters stated that their hospitals*
average cost per case is significantly
higher than the payment that would be
provided by the proposed DRG weight
of 13.8965.

The commenters believe that the data,
24 cases from 10 hospitals, used to
determine the proposed DRG weight are
too limited. They also questioned the
availability of MEDPAR data on liver
transplants, since liver transplants were
not covered in FY 1989. One commenter
suggested that we collect data from
transplant centers, as we did to
determine the heart transplant DRG
weight when that procedure was first
covered.

One commenter stated that 4 percent
of the liver transplant patients in his
hospital are over the age of 65, and that
the hospital’s data indicate that this
population is more severely ill and
develops more postsurgical
complications.

Another commenter believes that a
minimum volume of 20 to 25 liver
transplants per year is necessary in
order to maintain the high surgical and
nursing levels required to successfully
treat these critically ill patients and, that
if hospitals in our data base do not meet
this minimum level, he questions
whether their costs may be accurately
representative of the cost incurred in
liver transplants.

One commenter recommended that
the implementation of the proposed
DRG weight of 13.8965 be delayed and
the DRG weight of 21.0000 be retained
pending further reconsideration of the
data by HCFA. Another commenter
recommended phasing-in the reduction
with revisions based on more current
data as Medicare claims are processed.

It was pointed out that it would be
useful to centers applying for Medicare-
approved liver transplant center status
to have the data used for the proposed
DRG weight in order to determine if
their costs are similar and to provide a
clearer understanding as to why
Medicare is proposing such a sharp
decrease in the DRG weight. One
commenter stated that the proposed rule
did not include details of the data (that

3g012 Federal Register / Vol. 55, No. 171 / Tuesday, September 4, 1990 / Rule 9 and Regulations

is. range of charges, length of stay, and
diagnosis codes). Another commenter
suggested that we release the MEDPAR
data for centers to review and comment
on before finalizing the DRG weight

Response : The proposed liver
transplant DRG weight of 13.8965 was
based on more current data than the
DRG weight of 21.0000 and is weighted
relative to the other DRGs that currently
exist. The DRG weight of 21.0000
published in the March 8,1990 proposal
for Medicare coverage of adult liver
transplants was based on FY 1984
Medicare bill data and 1983 and 1984
sample claims data. The proposed DRG
weight of 13.6965 was based on FY 1989
MEDPAR data for 24 liver transplant
cases that meet the proposed Medicare
criteria for coverage. We note that the
Medicare DRG payment does not
include payment for organ acquisition
costs, payment for physicians, or
payment for capital or other pass¬
through costs. Therefore, an accurate
comparison cannot be made between a
hospital’s cost per liver transplant case
and the DRG payment in order to
determine the amount that the payment
exceeded or fell short of the cost of
treating that case.

We carefully reviewed the final FY
1989 MEDPAR data for liver transplant
cases to ensure that they met the
proposed coverage criteria and were
performed by hospitals that have the
potential for becoming Medicare-
approved transplant centers. This
review resulted in the loss of three cases
from three hospitals that are not liver
transplant centers. In addition, in
calculating the proposed DRG weight for
DRG liver transplants, we subtracted an
estimate of liver acquisition charges
from the total charges of liver transplant
cases if no acquisition charge was
shown on the bill. As explained above
in response to another comment, we
have not done this on the final
recalibration. We subtracted only
acquisition charges from those bills that
actually showed such charges. AH these
steps have resulted in an increase in the
weight for DRG 480. The final DRG 480
weight is 15.2645. This weight is based
on 29 liver transplant cases in the FY
1989 MEDPAR data.

We believe that 29 cases are adequate
to establish a weight for liver
transplants. The methodology to
recalibrate the DRG weights (see section
III.C of this preamble) requires a
minimum of 10 cases to compute a
reasonable DRG weight. Since the FY
1989 MEDPAR data included more than
10 (that is, 29) liver transplant cases that
meet the proposed Medicare criteria for
coverage, these cases were used to

determine the liver transplant DRG
weight in a manner consistent with the
other DRG weights. When Medicare
proposed to cover heart transplants on
October 17.1986 (51 FR 37164), there
were fewer than 10 heart transplant
cases in the FY 1984 Medicare bill data.
Therefore, we established the initial
heart transplant DRG weight based on
the most recent Medicare and non-
Medicare charge data accumulated
under the National Heart Transplant
Study for procedures performed in 1983.
The 29 liver transplant cases used to
determine the DRG weight of 15.2645
include patients ranging in age from 23
to 69 years of age with only 4 patients
over the age of 65.

We have not accepted the suggestion
to limit the data for the DRG weight
determination to bills from hospitals
with a minimum volume of 20 liver
transplant bills per year, in part because
we currently do not have available to us
information on the number of liver
transplants (Medicare and non-
Medicare) performed per year by a
given hospital. It is possible that the 29
cases included in our analysis were, in
fact, performed at transplant centers
that would meet the suggested minimum
volume of 20 transplants per year. We
note that the actual requirements for
approval as a Medicare-approved liver
transplantation center are still under
consideration and have not yet been
published as final. However, in keeping
with the spirit of the suggestion, we
have excluded bills from three hospitals
that we determined are not liver
transplant centers.

We disagree with the suggestion to
delay or phase-in the reduction of the
DRG weight as this weight is based on
current data and is relative to the
weights of the other DRGs.

The MEDPAR data include detailed
information on approximately 10 million
Medicare discharges that were used to
calculate the liver transplant DRG
weight and all other DRG weights.

These data are available to requestors
at a cost of $2,870 for each fiscal year by
submitting a written request to the
following address: HCFA Office of
Statistics and Data, Management,

Bureau of Data Management and
Strategy, Room 3-A-12 Security Office
Park Building, 6325 Security Boulevard,
Baltimore. MD 21207.

(See the May 9,1990 proposed rule at 55
FR 19461 for additional information
concerning the MEDPAR data.) The
conditions that will be covered and their
corresponding diagnosis codes are
included in the text of this section, and
the length of stay information is
included in Table 7B.

Comment: Two commenters objected
to the statement that teaching hospitals
performing liver transplants would
receive additional Medicare payment for
the indirect medical education (IME)
costs. One commenter stated that the
IME adjustment has never been used
before as rationale for decreasing the
relative weight of DRGs. The commenter
also stated that the IME adjustment
should be established to cover those
particular costs and questioned how
much of this payment should be
considered as added payment for
providing liver transplants to Medicare
patients. The commenter does not
believe that this policy is consistent
with the establishment of other
transplant procedures that have been
approved by Medicare. The other
commenter believes that the assertion
that transplant facilities will probably
receive IME and disproportionate share
payments that will significantly Increase
the actual payments for covered liver
transplants is inappropriate and ioo
highly individualized for each hospital.
This commenter stated that the relative
weights of DRGs should be calculated
based on the average resources required
to treat the patient and that additional
payments received by the hospital are
irrelevant in determining the appropriate
DRG weight

Response: It appears that our
discussion of the proposed weight of
13.8965 for DRG 480 has caused some
confusion. It was never our intention to
reduce the weight of this DRG. The
proposed weight was based on more
current data than the data that were
used to estimate the weight in the earlier
notice. Recognizing that this
discrepancy in the weights would cause
concern, we pointed out that the final
payment to a hospital for a given case is
not based solely on the DRG weight

The statement that facilities
performing liver transplants tend to be
larger teaching hospitals that receive
IME and. in most cases,
disproportionate share payment
adjustments that will significantly
increase the actual payments for
covered liver transplants, was not
intended to serve as rationale for a
lower DRG weight, but to point out that
in most cases the Medicare payment for
liver transplant cases will be greater
than that indicated by the DRG weight.
The additional Medicare payments for
IME and disproportionate share do not
affect the DRG weights but are removed
when the charges are standardized
before the DRG weights are
recalibrated. The weight for the liver
transplant DRG is calculated using the
same methodology as the other DRGs.

Federal Register / Vol. 55, No. 171 / Tuesday, September 4, 1990 / Rules and Regulations 36013

Comment One commenter pointed out
that liver transplants are much more
complex and resource intensive than
other organ transplants such as the
heart transplant. According to this
commenter, the liver transplant requires
12 hours of surgery, 5 surgeons, 8 nurses,
2 anesthetists, and 2 certified registered
nurse anesthetists. The heart transplant
requires 4 to 5 hours of surgery, 3
surgeons, 3 nurses, 2 anesthetists, and 1
certified registered nurse anesthetist.

The commenter is concerned that the
proposed DRG weight of 13.8965 does
not take into account the additional staff
requirements and technical expertise.

Response: Medicare payment for the
surgeons, anesthetists, and certified
registered nurse anesthetists is not
included in the DRG payment; thus,
these charges are not included in the
DRG weight determination. These
services are paid separately under
Medicare Part B. The DRG weight is
calculated using the total charges on the
bill for the hospital services payable
under Part A. To the extent inpatient
stays involving a liver transplant require
more intensive hospital resources (and
result in higher charges), this will be
reflected in the DRG weight. In this
regard, we note that the final weight for
DRG 480 is 15.2645 compared to the
weight of 12.9086 for DRG 103, Heart
Transplant.

b. Bone marrow transplants . In the
September 1.1989 final rule, we
responded to a comment that requested
that we establish a unique DRG for
autologous bone marrow transplants.

We stated that since we had not
included such a proposal in the May 8,
1989 proposed rule, and coverage for
autologous bone marrow transplants
had begun only on April 28,1989, we
would defer making such a change but
that we would analyze the data that
became available in the following year.
We analyzed the data available in the
FY 1989 MEDPAR file on bone marrow
transplants. The data show that these
cases are much more resource intensive
than the other cases in the DRGs to
which they are currently being assigned
and that our data base now includes a
sufficient number of these cases to
support the addition of a DRG.

Therefore, we proposed to add DRG
481 (Bone Marrow Transplant). We
proposed to assign both allogeneic and
autologous bone marrow transplants to
this DRG. Bone marrow transplants had
been assigned to four DRGs depending
on the patient’s principal diagnosis:

DRG 394 (Other OR Procedures of the
Blood and Blood Forming Organs), DRG
400 (Lymphoma and Leukemia with
Major OR Procedure), and DRGs 406

and 407 (Myeloproliferative Disorder or
Poorly Differentiated Neoplasms with
Major OR Procedure).

We proposed that only those cases
with a condition covered by Medicare
for bone marrow transplantation would
be paid under DRG 481. We stated that
we would add a screen for these cases
to the MCE. Each bone marrow
transplant discharge would be identified
by the screen and further reviewed by
the intermediary before payment is
made to ensure that all the coverage
conditions are met

Allogeneic bone marrow
transplantation is a procedure in which
a portion of a healthy donor’s bone
marrow is obtained and prepared for
intravenous infusion to restore normal
marrow function in recipients having an
inherited or acquired marrow deficiency
or defect The use of allogeneic bone
marrow transplantation can be covered
under Medicare for the following
conditions:

• Leukemia.

• Aplastic anemia.

• Severe combined immunodeficiency
disease (SCID).

• Wiskott-Aldrich syndrome.

Autologous bone marrow
transplantation is a technique for
restoring bone marrow stem cells using
the patient’s own previously stored
marrow. Autologous bone marrow
transplantation can be covered under
Medicare for patients with the following
conditions:

• Acute leukemia in remission for
patients who have a high probability of
relapse and who have no HLA-matched
donor.

• Resistant non-Hodgkin’s
lymphomas or those presenting with
poor prognostic features following an
initial response.

• Recurrent or refractory
neuroblastoma.

• Advanced Hodgkin’s disease for
patient’s who have failed to respond to
conventional therapy and have no HLA-
matched donor.

We proposed to assign discharges to
DRG 481 as follows:

• Procedure code 41.01 (Autologous
bone marrow transplant) is performed
and any one of the following is either a
principal or secondary diagnosis:

—Acute leukemia, in remission (V10.60.

V10.61, V10.62, V10.63, and V10.69).

—Advanced Hodgkin's disease (201.00-

201.08, 201.10-201.18, 201.20-201.23, 201.40-

201.48, 201.50-201.58. 201.60-201.68, 201.70-

201.78. 201.90-201.98).

—Resistant non-Hodgkin’s lymphomas

(202.80-202.88).

—Recurrent or refractory neuroblastoma

(140.0-199.1).

• Either procedure code 41.02
(Allogeneic bone marrow transplant
with purging) or 41.03 (Allogeneic bone
marrow transplant without purging) is
performed and any one of the following
is either a principal or secondary
diagnosis:

—Lymphoid leukemia (204.0-204.0).

—Myeloid leukemia (205.0-205.9).

—Monocytic leukemia (206.0-206.9)

—Other specified leukemia (207.0-207.8).

—Leukemia of unspecified cell type (208.0-

208.9).

-Wiskott-Aldrich syndrome (279.12).

—Severe combined immunodeficiency

disease (279.2).

—Aplastic anemia (284.0-284.9).

—Leukemia. In remission (V10.60-V 10.69).

• In the proposed rule we stated that
if procedure code 41.00 (Bone marrow
transplant, not otherwise specified) is
reported with one of any of the
diagnoses set forth in the two preceding
paragraphs, the case would be
developed further and would be
assigned to DRG 481 only after
verification that a covered transplant
was performed.

Unlike the other transplant DRGs
(that is. kidney, heart, and liver), for
which the cost of the organ acquisition
is paid on a reasonable cost basi9. the
payment for the acquisition costs for
bone marrow transplants is included in
the DRG payment. Therefore, in
calculating the DRG weight for bone
marrow transplants under the
methodology set forth below in section
III.C of this preamble, bone marrow
acquisition charges were not subtracted
from the total charges prior to
computing the average charge for the
DRG and. subsequently, its relative
weight.

Comment One commenter asked for
clarification of the statement in the
proposed rule that, prior to the payment
of a claim containing a bone marrow
transplant code, a case will be ’’further
reviewed by the intermediary.” The
commenter was interested in the criteria
that will be used by the fiscal
intermediary to allow or disallow
payment and whether or not the
intermediary will need the medical
record to conduct its review. The
commenter also requested information
on the time lag hospitals can expect
between billing, FI review, and payment.

Response: The ’’further review by the
intermediary” refers to the verification
process by which the intermediary will
check the diagnosis codes on the bill of
each bone marrow transplant case
against the Medicare coverage criteria
listed in the Medicare Coverage Issues
Manual and described above in this
section of the preamble. Those cases

36014 Federal Register / Vol. 55, No. 171 / Tuesday, September 4, 1990 / Rule 9 and Regulations

with at least one of the diagnosis code 9
of a condition that Medicare will cover
coupled with the correct bone marrow
transplant procedure code will be
processed through the GROUPER
assigned to the bone marrow transplant
DRG, and paid as such. This review will
be done through an automated interface
on the MCE and will not increase the
time required to process these bone
marrow transplant bills. However, if
procedure code 41.00 (Bone marrow
transplant, NOS) is coded with one of
the covered diagnoses, the bill will be
returned to the hospital for a more
specific procedure code. Since different
conditions are covered for autologous
and allogeneic bone marrow
transplants, the bill must be coded
specifically as either allogeneic or
autologous to be paid as DRG 481. The
FI will not review the medical records of
the bone marrow transplant cases prior
to payment. However, the PRO may
review cases assigned to and paid under
DRG 481, Bone Marrow Transplant, on a
postpayment review basis. In this case,
the medical records for the bone marrow
transplant will be reviewed.

Comment: One commenter pointed out
that the proposed rule stated that
Medicare will pay for bone marrow
transplants done to treat aplastic
anemia; however, the codes that include
this diagnosis were not listed (55 FR
19430).

Response: Although aplastic anemia
was mentioned in the proposed rule as a
covered condition (55 FR 19430), the
ICD-9-CM codes for aplastic anemia
(284.0-284.9) were inadvertently left off
the list of covered codes printed in the
proposed rule. These codes will be
included as covered diagnoses.

Comment: Two commenters objected
to the Medicare coverage guidelines for
autologous bone marrow transplants
that lists codes V10.60 through V10.69 as
the ICD-9-CM diagnosis codes for acute
leukemia in remission. They stated that
these codes do not indicate leukemia in
remission. They pointed out that,
according to current coding guidelines,
the VlO series of codes are used to
indicate the site of a previous cancer
that has been excised or eradicated and
no longer exists. They also pointed out
that leukemia in remission is still an
existing cancer and that there are no
ICD-9-CM codes that specifically
indicate leukemia in remission. They
recommended that HCFA ask the ICD-
9-CM Coordination and Maintenance
Committee to revise the leukemia codes
to designate specific codes for leukemia
in remission. They also suggested that,
in the meantime, the leukemia code
series (diagnoses 204 tiirough 208) be

used instead of the VlO codes to identify
acute leukemia and that the leukemia in
remission be identified by a chart
review, since HCFA already plans to
screen each bone marrow transplant
case to ensure that all coverage
conditions are met.

Response: The ICD-9-CM alphabetic
index instructs coders to use the V10.6
series for leukemia in remission. The
ICD-9-CM. Coordination and
Maintenance Committee is currently
proposed to create diagnosis codes for
leukemia in remission. The earliest date
that approved changes would become
effective is October 1,1991. In the
interim, the Medicare coverage
requirements will remain the same, and
coding guidelines will be published in
the Coding Clinic for ICD-9-CM (Fourth
quarter, 1990) to instruct hospitals to
make an exception to coding advice
published previously in the Coding
Clinic for ICD-9-CM (May-June, 1985),
which indicated that the VlO series not
be used to indicate a cancer remission.
The revised guidelines will instruct that
the V10.6X codes (Personal history of
leukemia in remission) are to be used
when a patient is admitted with
leukemia in remission for an autologous
bone marrow transplant. We note that
the intermediaries will screen each bone
marrow transplant case for a diagnosis
code of a covered condition but that this
screen will not include a review of the
medical record.

Comment: Two commenters disagreed
with the payment methodology for bone
marrow acquisition charges. One
disagreed with the proposal to include
organ recovery costs in the bone
marrow transplant DRG payment and
recommended that they be treated in a
manner consistent with other transplant
procedures (that is. paid as a pass¬
through on a reasonable cost basis). The
other commenter urged us to reconsider
this policy and pay allogeneic bone
marrow acquisition costs as a pass¬
through, on a reasonable cost basis, as
is done with kidney, heart, and liver
acquisition costs.

Response: Under the prospective
payment system, payment for bone
marrow acquisition costs are and have
always been included in the DRG
payment for the bone marrow
transplant. There are differences in both
the acquisition and payment of bone
marrow and organs such as the kidney,
heart, and liver. With kidney, heart, and
liver transplants, the donor and
recipient may often be in different
hospitals, and the procuring,
preservation, and transportation of
donated organs is coordinated through
an organ procurement agency. The

Medicare payment for the acquisition of
these organs is made on a pass-through
basis, generally to the hospital that did
the procuring. With an allogeneic bone
marrow transplant, the donor and
recipient are usually in the same
hospital. In the case of an autologous
bone marrow transplant, the patient is
both the bone marrow donor and
recipient. The charges for bone marrow
acquisition in both allogeneic and
autologous bone marrow transplant
cases are included on the recipient’s
Medicare bill, and the payment is
included in the DRG payment for the
recipient’s bone marrow transplant.

Comment: Two commenters. while
supporting the creation of a separate
DRG for bone marrow transplants, are
concerned with the adequacy and
appropriateness of the DRG weight. One
commenter is especially concerned with
the small case volume (45 cases in the
proposed rule) used to set the proposed
DRG weight and their high variability in
resource use and length of stay. One
commenter stated that a review of the
cost data at the commenter’s hospital
shows the proposed DRG weight to be
"underweighted" by at least 50 percent.
One commenter was not convinced that
the DRG is sufficiently well-defined for
case level prospective payment and also
inquired if HCFA had evaluated
whether separate DRGs are indicated
for patients of different ages, allogeneic
versus autologous bone marrow
transplant patients, or multiple
transplant patients. This commenter
also reported that for pediatric patients
receiving bone marrow transplants,
those with a principal diagnosis in
MDGs 10 and 16 have higher and more
variable resource use on average than
those pediatric patients with a principal
diagnosis in MDC 17. These commenters
recommended that HCFA develop a
broader analysis of costs and charges
associated with bone marrow transplant
procedures than suggested in the
proposed rule and that the
appropriateness of the DRG weight be
monitored so that revisions be made
upon review of more current "actual"
data as Medicare claims are processed.

Response: The proposed bone marrow
transplant DRG weight of 11.9901 was
based on FY 1989 MEDPAR data for 45
bone marrow transplant cases that met
Medicare’s criteria for coverage. The
proposed DRG weight was among the
highest of the DRG weights. As noted
above for liver transplants, the Medicare
DRG payment does not include capital,
organ acquisition, or other pass-through
costs, or physician and other part B
services. Therefore, an accurate
comparison cannot be made between a

Federal Register / Vol. 55. No. 171 / Tuesday. September 4. 1990 / Rules and Regulations 3S015

hospital's cost per bone marrow
transplant case and the DRG payment in
order to determine the amount that the
payment exceeded or fell short of the
cost of treating that case.

The methodology to recalibrate the
DRG weights (see section III.C of this
preamble) requires a minimum of 10
cases to compute a reasonable DRG
weight. Since the FY 1989 MEDPAR data
used to set the final weights include 5}
bone marrow transplant cases that meet
the Medicare criteria for coverage, these
cases were used to determine the bone
marrow transplant DRG weight in a
manner consistent with the other DRG
weights. The final weight for DRG 481 is
12.4485.

We believe that the bone marrow
transplant DRG is both appropriate and
well-defined for case level prospective
payment. DRG 481 (Bone Marrow
Transplant) is well-defined clinically by
the transplant procedure which is
unique from other surgical procedures.
Also, the amount of resources used for
bone marrow transplants differentiates
them from other types of cases in other
DRGs. We do not feel that is appropriate
at this time to split the bone marrow
transplant DRG by type of bone marrow
transplant or by patient age, or to create
a separate DRG for multiple transplant
patients. The bone marrow transplant
cases in the MEDPAR file are fairly
homogeneous both clinically and based
on resource use. We will continue to
evaluate the bone marrow transplant
cases as part of our ongoing refinement
to enhance clinical coherency and
reduce variation in charges within each
DRG.

c. Tracheostomy

Beginning with discharges occurring
on or after October 1,1987, cases with a
principal diagnosis in MDC 4 (Diseases
and Disorders of the Respiratory
System) and one of the tracheostomy
procedure codes 31.1 (Temporary
tracheostomy). 31.21 (Mediastinal
tracheostomy), or 31.29 (Other
permanent tracheostomy) were assigned
to a new DRG 474 (Respiratory System
Diagnosis with Tracheostomy). We also
created a new DRG 475 (Respiratory
System Diagnosis with Ventilator
Support). Currently, cases group to DRG
475 when a patient with a principal
diagnosis in MDC 4 receives mechanical
ventilation (procedure code 93.92) and
no operating room procedure or
tracheostomy is performed during the
hospital stay.

We received many requests that we
expand DRGs 474 and 475 to include
patients with other than respiratory
diagnoses. Our analysis of the FY 1988
and F 1989 MEDPAR data

demonstrated that tracheostomy cases
in the other MDCs have significant
differences in resource consumption,
with consistently higher average charges
than other cases in the same DRG.
Additionally, the charges for these
tracheostomy cases, with the exception
of certain cases with a mouth, larynx, or
pharynx disorder, were more similar to
each other than to the other cases in the
MDCs to which they are currently
assigned. Tracheostomy patients with a
mouth, larynx, or pharynx disorder
incurred significantly lower charges
than other tracheostomy patients;
however, their charges were still higher
than those of other cases in the same
DRG. Cases with a principal diagnosis
of a mouth, larynx, or pharynx disorder
are more likely to require a
tracheostomy as a therapeutic measure
related to the principal diagnosis rather
than in response to respiratory failure
requiring long-term ventilation.

We proposed to create two
tracheostomy DRGs: DRG 482 for
patients with a disorder of the mouth,
larynx, or pharynx who have one of the
tracheostomy procedures performed
(procedure codes 31.1, 31.21, or 31.29),
and DRG 483 for all other patients with
at least one of the tracheostomy
procedure codes. We proposed to delete
DRG 474 since all cases that currently
group to DRG 474 would now be
assigned to DRG 483.

We proposed to assign tracheostomy
patients to DRG 482 or 483 prior to other
DRG and MDC assignment but after
patients have been classified to the
Liver or Bone Marrow Transplant DRGs
480 or 481. We proposed to group cases
to the tracheostomy DRGs before the
new DRGs for HIV infection or multiple
significant trauma because, for the
Medicare population, tracheostomy
patients tend to incur higher charges
than either HIV or trauma patients.

The response to our proposed
tracheostomy DRGs was
overwhelmingly favorable. However,
some commenters wrote to suggest
various revisions to these DRGs.

Comment: ProPAC is concerned about
the incentives to code tracheostomy
procedures and whether these
additional cases will be similar to the
cases upon which we based the weights
for DRGs 482 and 483. ProPAC further
commented that the subset of
tracheostomy cases classified in MDC 4
indicate wide variation in length of stay
and charges among cases. Also, many of
these patients die in the hospital. The
Commission findings suggest that further
analysis to identify subgroups of
tracheostomy cases may be warranted.
Another commenter suggested that we
conduct more research toward

introducing further subdivision of the
tracheostomy cases, at least for certain
MDCs (as in the Yale model) or for
surgical versus medical cases.

Response: We share ProPAC's
concern that the volume of cases with
tracheostomy procedures reported on
the bill may increase. Heretofore, since
payment was unaffected, hospitals had
no financial incentive to report
tracheostomies that were performed
appropriately on patients with other
than respiratory conditions (that is,
those patients outside NDC 4). With the
establishment of the higher-weighted
DRGs for tracheostomy cases, hospitals
will now have an incentive to report
tracheostomies outside MDC 4. As
ProPAC pointed out, we experienced a
40 percent increase in the reporting of
tracheostomy cases in MDC 4 when a
separate DRG was created for
tracheostomy cases in MDC 4 (DRG 474)
in FY 1988. However, we have no basis
for assuming that any increased volume
of reported tracheostomies under the
new DRGs would be for patients with
different resource requirements than
those in the data base used to establish
the new DRGs.

We plan to evaluate the impact and
performance of the tracheostomy DRGs
when FY 1991 Medicare discharge data
become available. If these DRGs show
increases in heterogeneity, that is.
dissimilar cases with high charge
variance, consideration will be given to
appropriate modification of the
tracheostomy DRGs.

We evaluated creating separate
tracheostomy DRCs for surgical and
medical cases as one component of our
analysis prior to proposing the mouth,
larynx, or pharynx disorder with
tracheostomy and all other conditions
with tracheostomy groups. While in
most MDCs, surgical cases with a
tracheostomy showed higher charges
than the medical cases with a
tracheostomy, we concluded that this
division would not significantly reduce
the amount of variation in resource use
within the tracheostomy DRGs.
Therefore, the decision was made to
propose DRGs based on all MDCs, with
separate DRGs for mouth, larynx, or
pharynx disorders and for all other
patients. These two groups
demonstrated the most substantial
differences from each other.

Comment: One commenter brought to
our attention two procedure codes that
were not included in the list of
tracheostomy procedure codes that
would assign cases to DRG 482 or 483.
These two codes are procedure codes
30.3 (Complete laryngectomy)—and 30.4
(Radical laryngectomy). A laryngectomy

36016 Federal Register / Vol. 55, No. 171 / Tuesday, September 4. 1990 / Rules and Regulations

is the removal of the voice box. Because
a tracheostomy is virtually always
performed as part of the procedure,
coders are directed by the ICD-9-CM,
volume 3, not to report the tracheostomy
codes when codes 30.3 and 30.4 are
reported. The commenter recommended
that the procedure codes that group to
the tracheostomy DRGs be expanded to
include 30.3 and 30.4 so that discharges
involving either of these procedures
would also be assigned to DRG 482
(Tracheostomy with Mouth, Larynx, or
Pharynx Disorder).

Response : Currently, discharges with
procedure codes 30.3 and 30.4 are
assigned to DRG 49 (Major Head and
Neck Procedure) and DRGs 70 and 77
(Other Respiratory System Procedures).
In the process of expanding the
tracheostomy procedures from DRG 474,
we overlooked the two laryngectomy
(with tracheostomy) procedures. Our
medical consultants verified that these
two procedures do, in fact, include
tracheostomy. Evaluation of MEDPAR
data confirms that these cases have a
distribution of charges similar to DRG
482. Based on this finding, as well as the
current classification of cases with these
procedures primarily to DRG 49, we are
providing that procedure codes 30.3 and

30.4, when performed with any
diagnosis, will group to DRG 482.
Therefore, the GROUPER will assign all
cases to DRG 482 with a principal
diagnosis of mouth, larynx, or pharynx
disorder and procedure codes 31.1, 31.21,
or 31.29; or cases with any principal
diagnosis and procedure codes 30.3 or

30.4. Cases with other principal
diagnoses and procedure codes 31.1,
31.21, 31.29 will group to DRG 483. For
the convenience of the reader, we have
listed in table 6k of the Addendum to
this final rule all the mouth, larynx, and
pharynx disorder diagnosis codes that
will cause a tracheostomy case to be
assigned to DRG 482.

Comment: Two commenters observed
that a problem may exist for
tracheostomy patients who are
transferred during the course of
treatment. These commenters present a
hypothetical case of a trauma victim
who receives a tracheostomy upon
admission, is stablized, and then
transferred to a tertiary care center
where the patient could remain for 2
months or longer, with a significant
portion of that time on mechanical
ventilation. The commenters complain
that once the patient is transferred, the
discharge cannot be classified in a
tracheostomy DRG.

Response: The secenario described by
the commenter raises several issues.
First, our policy is to consider only the

procedures actually performed at the
hospital in assigning cases to their
respective DRGs. This is a fundamental
principle of the DRG classification
system that allows us to classify
patients based on information that is
presented on the bill. Any deviation
from this principle, such as to recognize
a tracheostomy that was performed
elsewhere prior to admission, would not
be appropriate and would be impractical
to administer since it would require
associating bills from different inpatient
stays.

Secondly, effective with discharges
occurring in FY1990, we modified DRG
475 so that transfer cases with a prior
tracheostomy would be assigned to this
DRG if certain conditions were met.
(Prior to FY 1990, such cases could not
be assigned to DRG 475 because both
intubation and mechanical ventilation
were required for assignment and the
intubation was usually performed
elsewhere prior to the patient’s transfer.)
The new tracheostomy DRGs will not
affect the assignment of these cases.

A patient who receives a
tracheostomy in one facility and is then
transferred to another will be treated in
the same manner as under the current
system. Specifically, the stay in a
second hospital will not be assigned to a
tracheostomy DRG since the procedure
was not performed at the second
hospital and cannot be coded on the
hospital’s bill. When a patient with an
established tracheostomy is transferred,
the second hospital is paid under DRG
475 only if the principal diagnosis is
classified in MDC 4. the patient receives
mechanical ventilation, and no
operating room procedures were
performed during the stay in the second
hospital.

Although our current payment policy
on transfer cases that had a
tracheostomy performed prior to
admission is an improvement over the
policy in effect before FY 1990, we
recognize that payment may still be
inadequate for cases that do not meet
the conditions for assignment to DRG
475 and for those cases that involve
prolonged mechanical ventilation. As
indicated below in response to other
commenters, we are continuing to
review these situations in an effort to
improve our payment policies for
ventilator patients who consume more
than average resources.

Comment: Several commenters
expressed regret that although we were
improving payment for tracheostomy
cases, we failed to expand other
mechanical ventilation cases beyond
MDC 4 and DRG 475. These commenters
encouraged us to institute a policy for

mechanical ventilation similar to the
proposed classification for tracheostomy
cases, addressing the unresolved issue
of medical patients placed on
mechanical ventilation who do not have
a tracheostomy and who do not have a
principal diagnosis in MDC 4. It was
recommended that we give priority to
completing research on possible
additional mechanical ventilation
categories for cases outside MDC 4.

Response: As stated in the proposed
rule, cases with MDC 4 principal
diagnoses and mechanical ventilation
currently classify to DRG 475 if no
surgical procedure or tracheostomy is
performed. As stated at that time, we
are continuing to analyze resource
consumption for nontracheostomy,
ventilator-assisted patients in medical
DRGs outside MDC 4. We did not
propose any changes for mechanical
ventilation as our analysis was not
complete. We are continuing the
analytic work on these cases to
determine if it is appropriate to develop
DRGs similar to those proposed for
tracheostomy cases.

Comment: Other commenters
expressed concern about the time spent
on ventilation as a distinguishing factor
in resource consumption. One
commenter recommended that the basis
for DRG assignment be the presence of
both a diagnosis of severe respiratory
compromise (diagnosis codes 518.81.
518.82, 799.0, and 799.1) and mechanical
ventilation (procedure code 93.92). The
commenter states that this would
capture patients who are experiencing a
severe, life-threatening respiratory
disorder and are also being
mechanically ventilated. This would
preclude the need to identify the time a
patient was mechanically ventilated.

Response: We gave considerable
thought to the recommendation to use
time on mechanical ventilation as a
proxy for resource consumption, and to
use length of time to distinguish routine
surgical mechanical assistance from the
more extensive care associated with
prolonged ventilation. As stated in the
proposed rule, we have no way to
identify the length of time spent on
mechanical ventilation. Over the past
year, the ICD-9-CM Coordination and
Maintenance Committee reviewed
whether it would be appropriate to
change the ventilator procedure codes to
reflect the length of ventilator time. A
number of approaches were suggested.
The committee decided against making
any changes effective October 1,1990
due to lack of empirical evidence
supporting appropriate time intervals.

We are continuing to consider and
research this issue of mechanical

Federal Register / Vol. 55, No. 171 / Tuesday, September 4, 1990 / Rules and Regulations 3G017

ventilation time in an effort to address
the concerns of hospitals that ventilator-
assisted patients consume above
average resources.

We have analyzed data using
respiratory failure diagnosis codes
518.81, 518.82, 799.0, and 799.1 and
mechanical ventilation code 93.92.

While this distinction served to identify
a class of patients within MDC 4,
respiratory failure was not coded with
enough consistency in other MDCs to be
reliable. However, we appreciate the
suggestion and will examine thi3
possibility as one component of our
continuing analysis.

d Multiple Significant Trauma. The
DRG classification system has received
considerable criticism because there are
no DRGs designed for multiple trauma
cases. There is an MDC for injuries,
poisoning, and toxic effects of drugs
(MDC 21) that contains several surgical
DRGs for injuries and three medical
DRGs for multiple trauma. However,
most injury and trauma cases group to
one of the other MDCs based on the
body system affected by the principal
diagnosis. Multiple trauma cases tend to
be extremely resource intensive and to
incur long lengths of stay. Because these
cases are assigned to DRGs based on
principal diagnosis, they are included in
DRGs with other generally less
expensive cases and, thus, tend to
receive Medicare payments that are far
less than the cost of treating the case.

We proposed to create a new MDC 24
(Multiple Significant Trauma) with three
surgical DRGs (DRG 484 through 486)
and one medical DRG (DRG 487) to
classify multiple significant trauma
cases. We proposed to assign these
cases to DRGs 404 through 487 after
assignment of cases to bone marrow
and liver transplant and tracheostomy
DRGs and before cases are assigned to
the current MDCs. Patients with a
principal diagnosis of trauma (diagnosis
codes 800.00-904.9; 910.0-929 9, and
950.0-959.9) group to a multiple trauma
MDC if at least two significant trauma
diagnosis codes from two different body
site categories are reported as either
principal or secondary' diagnoses. We
pioposed to recognize eight different
body site categories; head, chest,
abdomen, kidney, urinary, pelvis and
spine, upper limb, and lower limb.

Based on HCFA data analysis, the
following DRG groupings were proposed
for multiple significant trauma:

DRG 484 Craniotomy for Multiple
Significant Tauma
DRG 485 Hip. Femur and Limb
Reattachment Procedures for Multiple
Significant Trauma

DRG 480 Other OR Precedures for Multiple
Significant Trauma

DRG 487 Other Multiple Significant Trauma

As proposed, the OR procedures
allowed for MDC 24 would be all of the
OR procedures allowed for MDC 21 plus
OR procedure codes 01.21, 01.42, 01.51,
01.6, and 02.14. If an OR procedure other
than one of these is performed, the case
will be assigned to DRG 468 (Extensive
OR Procedure Unrelated to Principal
Diagnosis), DRG 476 (Prostatic OR
Procedure Unrelated to Principal
Diagnosis), or DRG 477 (Non-Extensive
OR Procedure Unrelated to Principal
Diagnosis). We proposed that multiple
significant trauma cases with no OR
procedure would group to DRG 487.

For purposes of clarity and to lessen
confusion concerning the DRGs to which
multiple trauma cases group, we
proposed to revise the titles of the
current DRGs 444, 445, and 446 (Multiple
Trauma) in MDC 21 to Traumatic Injury.

We received many comments
supporting and approving our proposed
multiple significant trauma DRGs. All of
the comments received regarding
multiple significant trauma included a
favorable statement. We did, however,
receive several suggestions on ways to
improve these DRGs.

Comment: Commenters recommended
that we consider creating a new DRG to
describe multiple injuries within one
anatomic area. These commenters
observed that multiple injuries occur
both within a single body area as well
as in two or more body sites, and that
these patients consume more resources
than those with single organ injuries
within the same anatomic area. As the
proposed DRGs do not address multiple
organ injury within one body system, an
additional DRG indicating multiple
significant injuries within one body site
was recommended.

Response: Patients group to MDC 24
with a principal diagnosis of trauma
(diagnosis codes 800.00-904.9, 910.0-
929.9, and 950.0-959.9) and at least two
significant trauma diagnosis codes
(either as principal or secondary) from
different body site categories. The eight
different body site categories and
diagnosis codes associated with each
category are set forth in Table 6h of the
addendum to this final rule.
Operationally, this classification groups
patients to MDC 24 if they have a
principal diagnosis of significant trauma
from one body site and a secondary
significant trauma from another body
site or a principal diagnosis of trauma
that i9 not on one of the body site
significant trauma lists and two
secondary diagnoses of significant
trauma from different body sites.

HCFA data analysis for these multiple
trauma cases substantiated the New

York study results: These cases did in
fact consume more resources than other
cases in the DRGs to which they group
under current classification. Variation
was reduced, as measured by the
coefficient of variation (the standard
deviation divided by the mean), thus
increasing homogeneity. The creation of
these DRG9 reduces the variance both in
the new DRGs and in the DRGs from
which these cases were drawn. To date,
the Medicare data have not supported
the development of similar DRGs for
multiple trauma to a single body site.

The reduction in variability in the cases
remaining in the original DRGs to which
trauma cases have been previously
grouped was significant enough to be
considered sufficient improvement at
this time.

We will be evaluating the
performance of the multiple trauma
DRGs. As one component of this
analysis, we will examine the relative
resources required for multiple trauma
to a single body site.

Comment: Two comments were
received concerning emergency room
care and trauma payment. Both
observed that trauma diagnoses and
treatment are often buried in nontrauma
DRGs where the emergency care
component of trauma resource
consumption is poorly recognized. These
commenters indicated the emergency
room component of trauma resource
consumption merited recognition.

Response: DRG weights are calibrated
based on charges submitted on
Medicare claims. If a beneficiary
receives emergency room services and is
subsequently admitted as an inpatient
before midnight of the following day. the
emergency room services are covered
under part A and the charges are
included on the inpatient bill. To the
extent that emergency room charges are
entered on the inpatient bill, they are
part of total charges and included in
establishing the weight for the relevant
DRGs. Given the traumatic nature of the
cases that will be assigned to MDC 24,
we would anticipate that most, if not all
would be emergency admissions.

Comment: We received several
comments with recommendations that
related to specific proposed DRGs for
multiple trauma. One commenter
observed that the New York State
multiple significant trauma DRGs have
two medical DRGs as compared to the
one medical DRG being proposed for
Medicare.

Response: When we analyzed
Medicare data using the New York
model, we found that the two New Yoik
medical DRGs for Head. Chest and
Lower Limb Diagnoses of Multiple

36018 Federal Register / Vol. 55, No. 171 / Tuesday, September 4. 1990 / Rules and Regulations

Significant Trauma and Other Diagnoses
of Multiple Significant Trauma were
similar in terms of length of stay and
charges for the Medicare population.
Clinically, there was no reason to
maintain separate groups. Therefore, the
decision was made to form only one
medical DRG, DRG 487 (Other Multiple
Significant Trauma).

Another difference between the
HCFA Multiple Significant Trauma
DRGs and the New York model is in the
sequencing for patients with multiple
significant trauma that require a
tracheostomy. The New York Grouper
assigns these cases to the Multiple
Significant Trauma DRGs. Under the
Medicare GROUPER, these cases will be
assigned to the Tracheostomy DRGs 482
and 483 rather than the Multiple
Significant Trauma DRGs. The net effect
of this difference is to reduce the range
of variance in the charges and length of
stay in the Medicare Significant Multiple
Trauma cases, since the typical
tracheostomy case requires greater
resources than the typical multiple
trauma case.

Comment: HCFA should broaden DRG

484 (Craniotomy for Multiple Significant
Trauma) to include “Multiple Significant
Trauma with Significant Head Injury,
with or without Craniotomy.” as only a
fraction of multiple-injured patients with
head injuries undergo a craniotomy.

Response : We will be cognizant of the
classification concerns expressed by the
commenter as we evaluate the
performance of the multiple significant
trauma DRGs. For FY 1991, head injury
cases without craniotomy will group to
DRG 488 (Other OR Procedures for
Multiple Significant Trauma), or to DRG
487 (Other Multiple Significant Trauma)
if no defined multiple trauma procedure
is performed. If future data analysis
reveals that these cases have charges
and lengths of stay that more nearly
pattern those of cases in DRG 484
(Craniotomy for Multiple Significant
Trauma) than the cases in the DRGs to
which they are assigned, we will
consider this recommendations. Initial
analysis prior to proposing the new
DRGs indicated that the New York
model served to improve homogeneity
for multiple trauma cases. The
performance of these DRGs in the next 2
years may indicate that further
modifications are necessary.

Comment: One commenter suggested
that DRG 485 (Hip, Femur, and Limb
Reattachment Procedures for Multiple
Significant Trauma) should be redefined
to specify just hip replacement as this is
the most common procedure and femur
and limb realtachment procedures are
rare. Another commenter stated DRG

485 should be redefined into two

separate DRGs, “Hip and Femur
Procedures for Multiple Significant
Trauma", and “Limb Reattachment
Procedures for Multiple Significant
Trauma", limb reattachment procedures
being rare and hip and femur procedures
more common in the elderly.

Response : We are aware that limb
reattachmen] procedures arc rare.
However, they resemble most closely
other diagnoses within DRG 485 (Hip.
Femur, and Limb Reattachment
Procedures for Multiple Significant
Trauma). Of the cases grouping to
proposed DRG 485, 88 percent are for
hip and femur except major joint
procedures. Whenever possible, we
prefer to group patients that are similar
clinically and in terms of resource
consumption, rather than create a
number of separate DRGs containing
relatively few cases. Our analysis does
not support a DRG to include only limb
reattachment and femur procedures. In
addition, our analysis indicates that
these cases are similar in charges and
length of stay to the hip procedure cases
that group to DRG 485.

We do agree, however, that the title of
DRG 485 lacks clarity. Therefore, we are
changing the title to “Limb
Reattachment, Hip and Femur
Procedures for Multiple Significant
Trauma."

Comment: In the interest of clarity,
one commenter suggested that the title
of DRG 487 (Other Multiple Significant
Trauma) be revised to read “Other
Significant Trauma Not Requiring
Operation".

Response: DRGs, insofar as possible,
are labelled succinctly and clearly. We
attempt to convey as much information
in the title as is necessary to understand
the classification without including all
the detailed information necessary to
assign a case to that DRG. Sometimes it
is necessary to distinguish between
DRGs by including more detail. This is
the case with, for example, DRG 51,
Salivary Gland Procedures except
Sialoadenectomy. The most common
distinction between DRGs are age and
presence of CCs. We do not feel it is
necessary to define DRG 487 as Other
Significant Trauma Not Requiring
Operation since the original title (Other
Significant Trauma) is adequate to
describe the basis for what will be
included in that classification.

Comment: One commenter believes
that the diagnoses assigned to the
various body sites for purposes of the
multiple trauma DRGs should be
revised. This commenter maintains a
data base on multiple trauma cases that
he has offered to share with us.

Response: The data we used in
analyzing the revised DRGs are the FY

1989 MEDPAR data, which are the most
recent complete data we have available.
Hospitals and other interested parties
collect data for a variety of purposes
and subjects. HCFA makes use of many
of these sources in the course of
evaluation and analysis, and we intend
to explore other analyses of trauma
cases as part of our on-going effort to
improve the DRG classification system.
However, we note that, for policy
decision-making, we use internal data
sources based only on Medicare
discharges. Thus, we ensure, and
assume responsibility for, data
consistency and accuracy and
appropriateness of the DRGs and
relative weights for the Medicare
population.

Comment: Among the comments
received regarding Multiple Significant
Trauma were several references to the
use of Medicare DRG grouping methods
by other payers for non-Medicare
patient populations. Commenters were
concerned that Medicare DRGs serve as
models for other payers and populations
and that IICFA must be cognizant of this
fact. One commenter recommended that
we qualify or withdraw our statement
that the proposed categories are
“homogeneous" and "would improve
payments under other insurance
programs that have adopted the
Medicare DRG classification system."

(55 FR 19431.)

Response: HCFA is well aware that
its DRG classification system serves as
a model for other reimbursement groups
and routinely cautions other payers that
our DRG weights and groupings are
based on Medicare patient data and
may not be appropriate for other classes
of patients. However, in the case of the
Multiple Significant Trauma DRGs,
these were modeled after New York
Multiple Significant Trauma DRGs,
which is an all-payer system. Therefore,
this classification methodology has
already demonstrated improvements
under other insurance programs. Using
MEDPAR data, we measured variance
within and between the DRGs, both
prior to mutiple trauma groupings and
after assigning cases based on the
proposed DRGs. The classification
system for multiple significant trauma
served to reduce variance; therefore,
establishing the DRGs for Multiple
Significant Trauma results in more
homogeneous grouping of Medicare
patients.

Comment: One commenter stated that
the averaging process used to create
DRG weights poorly serves the bi-modal
and tri-modal distribution of many
trauma patient populations, and

Federal Register / Vol. 55, No. 171 / Tuesday, September 4, 1990 / Rules and Regulations 36019

prejudices those trauma centers that
treat the most severely injured patients.

Response : While it is true that the
averaging system could potentially
present difficulties for hospitals who
systematically treat more severely ill
patients and not an average mix of
patients, there is no empirical evidence
to document that this problem is more
unique to the multiple significant trauma
DRGs than other DRGs.

Comment: One commenter raised
questions regarding the logic and
consistency of the procedures assigned
to the three significant multiple trauma
DRGs 484, 485, and 486. This commenter
questioned why some craniotomy
procedures group to DRG 484 and some
hip, femur, and limb procedures group to
DRG 485 while other craniotomy
procedures as well as other hip. limb,
and femur procedures will be assigned
to DRG 486. This commenter was
concerned that DRG 486 consists of
disparate procedures, resulting in a lack
of statistical and clinical homogeneity
within that DRG.

Response: As noted above, the
multiple significant trauma DRG 9
proposed by HCFA are modeled on the
New York State DRGs; we relied to an
extent on the data analysis conducted
by 3M/HIS for New York in forming our
decision for assigning cases to multiple
trauma DRGs. The New York
classification of cases followed the
guidelines provided by the Condensed
Abbreviated Injury Scaling (CAIS) chart,
which has proven valuable for
prospective clinical injury scoring. Early
prospective clinical injury scoring is a
process whereby an objective measure
of the severity of a patient's injuries
starts to be formulated soon after
admission. As more information
becomes available, a definitive injury
severity score is calculated. Use of this
scale permits grouping trauma cases by
level of severity and by body site.

The assignment of certain craniotomy
procedures to DRG 484, while others
w ent to DRG 486, was determined by
the similarity of resource intensity and
clinical severity judged by our medical
consultants and the CAIS chart
assignment by level of severity. The high
cost, service-intense craniotomy
procedures were assigned to DRG 484,
w hich has the highest weight of the
multiple significant trauma DRGs. While
we agree that the procedures assigned
to DRG 486 are not anatomically similar,
they do resemble each other in terms of
measures of resource consumption and
ir. levels of severity. This is true, also,
for the Hip, Femur and Limb
Reattachment procedures that group to
either DRG 485 or 486. While most of the
hip procedures are found in DRG 486.

this DRG has a higher weight than DRG
435. The hip procedures assigned to
DRG 485 were more similar in charges
and level of severity to the other
procedures found in that DRG.

We plan to evaluate the assignment of
cases to the multiple significant trauma
DRGs during the coming 2 years. We
appreciate the comments and questions
that have been raised in regard to these
cases and will continue to examine them
in our analysis.

e. Human Immunodeficiency Virus
(HIV) Infections. We have been
evaluating the impact on the Medicare
population of the increasing number of
cases with human immunodeficiency
virus (HIV) infections to ensure that
payment under the DRG classification
system for these patients is appropriate.

1IIV infections are identified by
diagnosis codes 042.0—042.9 (HIV
infection with specified conditions),

043.0—043.9 (f IIV infection causing
other specified conditions), and 044.0—
044.9 (Other HIV infection). Currently,
cases that have one of these codes as
the principal diagnosis are assigned to
DRGs 398 or 399 (Reticuloendothelial
and Immunity Disorders) in MDC 16
(Diseases and Disorders of the Blood
and Blood Forming Organs and
Immunological Disorders).

Our analysis of FY 1987 and FY 1988
MEDPAR data showed that HIV-
infected patients were distributed
across a number of DRG9 and that their
costs were significantly higher than
other patients within the same DRG. In
addition. we found that surgical patients
differed noticeably from medical
patients in terms of resource
consumption as measured by total
charges.

Because of the substantial increase in
I UV infection cases and our analysis of
the charge data for these cases, we
believe that it is now appropriate to
establish separate DRGs for HIV cases.
Based on our analysis of FY 1989
MEDPAR data, we proposed to add a
new MDC 25 (Human Immunodeficiency
Virus Infections) with three DRG
categories for HIV-infected patients.
These classifications are as follows:

DRG 488 HIV with Extensive OR Procedure
DRG 489 HIV with Major Related Condition
DRG 490 HIV with or without Other Related

Condition

We proposed to limit the HIV-related
conditions to those identified by the
Centers for Disease Control (CDC).

These conditions, which were'originally
set forth in CDC’s Official Authorized
Addendum to ICD-9-CM (Revision No.

1) effective January 1,1988, are listed in
Volume 1 iri the "Includes Only" notes

under diagnosis codes 042.0, 042.1, 042.2,
043.1, 043.3, and 044.0.

We proposed to assign cases to MDC
25 prior to the current MDC
classifications, but after cases have
been grouped to the liver and bone
marrow transplant, tracheostomy, or
multiple significant trauma DRGs.

We proposed that the OR procedures
allowed for DRG 488 would be all OR
procedures other than nonextensive OR
procedures. Nonextensive procedures
are those OR procedures that result in
assignment to DRG 477 when the
procedure is unrelated to the principal
diagnosis. (See discussion below in
section IH.B.8 of this preamble regarding
changes to DRG 477.) We proposed that
surgical cases with only a nonextensive
OR procedure and medical cases would
be assigned to DRG 489 or 490 based on
the HIV-related condition. If the HIV-
related condition involves a disease or
disorder of the central nervous system, a
malignancy, an infection, or other major
related condition, we proposed to assign
the case to DRG 489. We proposed to
assign the remaining cases, HIV
infection with and without an HIV-
related condition, to DRG 490.

Comment: We received several
comments supporting our proposed
DRGs for patients with HIV infection.
While the majority of comments were
overwhelmingly favorable, one
commenter believes that we have not
demonstrated that HIV patients could
be grouped sufficiently well for payment
purposes, that the number of groups is
inadequate, and that there is no
category for children with HIV. The
commenter stated that the
appropriateness of categories to all age
patients should be identified, and if all
age groups have not been studied, this
should be acknowledged.

One other commenter referred to the
inadequacy of three DRG groups to
accommodate the variable diagnoses,
treatments, and related services
presented by HIV patients. This
commenter referred to the fact that New
York, whose classification methodology
served as a model for many of our
proposed modifications and DRGs, has
12 HIV DRG categories. The limit of
three is felt by this commenter to result
in inequitable payments to hospitals due
to the significant variance in the costs
for the cases grouped together.

Response: Our evaluation of 3 years
of data, using MEDPAR FY 1987, FY
1988, and FY 1389 data, documented the
need for and feasibility of DRGs specific
to HIV infection. We used our standard
method of analysis, basing decisions on
statistical findings and clinical
cohesiveness. To the extent possible, the

36020 Federal Register / Vol. 55, No. 171 / Tuesday, September 4, 1990 / Rules and Regulations

HIV infection discharges were studied
and determined to be manageable as an
MDC. The issue of including a DRG for
children with HIV infection is not
relevant for the Medicare population.
The majority of Medicare beneficiaries
are 65 years of age or older. There is a
Medicare benefit available on the basis
of disability. This, however, is a small
group with an even smaller number of
children represented. While there are an
increasing proportion of patients under
65 years of age with HIV infections
appearing in our MEDPAR data, the
distribution of cases by age
demonstrated there was only one
patient in the data who would classify
as “child" (16 years of age). To attempt
age category designations would not be
feasible on the basis of case frequency
in the MEDPAR data. We note that
although the current DRGs include some
DRGs specific to children under age 17,
these are generally low volume DRGs
whose weights were established at the
outset of the Medicare program based
on non-Medicare data from Michigan
and Maryland hospitals. We have not
supplemented our MEDPAR data with
updated non-Medicare data since the
initial weights for these low volume
DRGs were established nor have we
established any additional low volume
DRGs. Those commenters who are
interested in HIV categories related to
age might consider the New York State
model.

New York State does indeed have 12
HIV DRGs as pointed out by the
commenter. The criteria determining the
grouping, after principal and secondary
diagnoses, are age and opioid use. We
do not believe that either of these
criteria are appropriate to the Medicare
population. New York State developed
their classification methodology to serve
an all payer (except Medicare), system
that encompasses all age groups. The
first grouping under the New York
method selects patients under 29 years
of age, the second selection criterion is
neonatal diagnosis, thus creating two
DRGs for newborns. Children bom with
HIV infections will go to one of these
DRGs. The third selection is based on a
principal diagnosis of HIV infection with
a principal diagnosis of significant HIV
related condition. These HIV cases are
then further subdivided based on age (13
years) and opioid use. The objective for
New York was to be able to identify
HIV infections related to intravenous
drug use and patient age. The
classification system determined to best
fit the Medicare population was the one
proposed, representing surgical cases,
cases with major HIV-related
conditions, and other HIV cases. We

recognize that the medical HIV DRGs
are not as homogeneous as the surgical
DRG; this pattern holds across DRGs in
general. We will be monitoring the
performance of the HIV DRGs,
evaluating the variance within and
between groups, and will consider
modifications as they prove necessary
based on empirical data and clinical
judgment.

Comment: ProPAC agreed that the
proposed HIV DRGs are an
improvement and will both allow these
cases to be clearly identified and
provide a mechanism for
accommodating future treatment
changes. However, ProPAC referred to
results of the Commission's data
analysis. Using FY 1987 and FY 1988
MEDPAR data, ProPAC found that,
among cases with HIV as a secondary
diagnosis, there did not appear to be
significant payment problems, although
cases with a principal diagnosis of HIV
infection appeared to be more costly
and underpaid relative to other cases in
the DRGs to which HIV cases were
assigned (DRGs 398 and 399).

Response: HCFA data analysis,
preliminary to proposing the
development of DRGs specific to HIV
infections, was based on FY 1989
MEDPAR data, as well as FYs 1987 and
1988. Some of our findings were similar
to ProPAC’s: Cases with a principal
diagnosis of HIV infection incurred
charges and lengths of stay that were,
on average, higher than other cases in
the same DRGs. However, we found that
cases with a secondary diagnosis of HIV
infection with a principal diagnosis from
the CDC list of HIV-related conditions,
on average, also incurred higher charges
than other cases in the same DRG.
Although this difference was not as
significant when HIV was secondary,
our DRG classification decisions are
based on clinical as well as empirical
data. Our medical experts evaluated the
HIV infection cases both as principal
and as secondary diagnoses and believe
these cases would be best served by
creating DRGs for all HIV cases
regardless of the sequencing of the
diagnoses. However, if HIV infection is
reported as the secondary diagnosis, the
case will be assigned to one of the HIV
DRGs only if the principal diagnosis is
on the CDC list of HIV-related
conditions.

Comment: One commenter expressed
concern that HIV cases might receive
less payment in DRG 489 or 490 as
opposed to the DRGs that recognize the
extensive surgical procedures performed
with many of these cases. Another
commenter objected to the creation of a
surgical split for HIV cases since most

major operating procedures performed
for HIV cases are not related to the HIV
illness and a principal diagnosis
unrelated to HIV is usually indicated.

Response: MDC 25 cases with
extensive surgery will not be assigned to
DRG 489 or 490, but will be assigned to
DRG 488. with a weight of 4.1290. An
examination of the surgical DRGs to
which these patients would be grouped
in the absence of the new groupings
shows that the volume of HIV surgical
cases are from DRGs that are weighted
significantly lower than DRG 488.
Nonextensive procedures performed on
HIV patients that would have grouped
to DRG 477 will be assigned to DRG 489
or 490, depending on the presence of a
major HIV-related condition.

As for the case of surgical procedures
for patients with a principal diagnosis
unrel