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ThursdayJanuary 23, 1997Vol. 62 No. 15

Pages 3441–3602

1–23–97

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FEDERAL REGISTER Published daily, Monday through Friday,(not published on Saturdays, Sundays, or on official holidays), bythe Office of the Federal Register, National Archives and RecordsAdministration, Washington, DC 20408, under the Federal RegisterAct (49 Stat. 500, as amended; 44 U.S.C. Ch. 15) and theregulations of the Administrative Committee of the Federal Register(1 CFR Ch. I). Distribution is made only by the Superintendent ofDocuments, U.S. Government Printing Office, Washington, DC20402.The Federal Register provides a uniform system for makingavailable to the public regulations and legal notices issued byFederal agencies. These include Presidential proclamations andExecutive Orders and Federal agency documents having generalapplicability and legal effect, documents required to be publishedby act of Congress and other Federal agency documents of publicinterest. Documents are on file for public inspection in the Officeof the Federal Register the day before they are published, unlessearlier filing is requested by the issuing agency.The seal of the National Archives and Records Administrationauthenticates this issue of the Federal Register as the official serialpublication established under the Federal Register Act. 44 U.S.C.1507 provides that the contents of the Federal Register shall bejudicially noticed.

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Federal Register / Vol. 62, No. 15 / Thursday, January 23, 1997

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Contents Federal Register

III

Vol. 62, No. 15

Thursday, January 23, 1997

Agency for Health Care Policy and ResearchNOTICESMeetings; advisory committees:

February, 3513

Agriculture DepartmentSee Animal and Plant Health Inspection ServiceNOTICESAgency information collection activities:

Submission for OMB review; comment request, 3496

Alcohol, Tobacco and Firearms BureauNOTICESAgency information collection activities:

Proposed collection; comment request, 3554–3561

Animal and Plant Health Inspection ServiceRULESExportation and importation of animals and animal

products:Cattle for slaughter; tuberculosis and brucellosis pre-

export test requirements elimination, 3445–3446

Army DepartmentNOTICESEnvironmental statements; availability, etc.:

Camp Roberts Army National Guard Training Site, CA;combined-forces training activities, etc., 3501

Centers for Disease Control and PreventionNOTICESMeetings:

Advisory Committee to the Director, 3513–3514Hanford Thyroid Morbidity Study Advisory Committee,

3514

Coast GuardRULESDrawbridge operations:

Florida, 3461–3463Pollution:

Existing tank vessels without double hulls; structural andoperational measures to reduce oil spills, 3463

Commerce DepartmentSee International Trade AdministrationSee National Institute of Standards and TechnologySee National Oceanic and Atmospheric Administration

Consumer Product Safety CommissionNOTICESMeetings; Sunshine Act, 3500

Corporation for National and Community ServiceNOTICESGrants and cooperative agreements; availability, etc.:

Learn and Serve America—School and community based programs, 3500–3501

Customs ServiceNOTICESIRS interest rate used in calculating interest on overdue

accounts and refunds, 3561–3562

Defense DepartmentSee Army DepartmentSee Navy Department

Education DepartmentNOTICESGrants and cooperative agreements; availability, etc.:

Educational progress, national assessment; secondaryanalysis program, 3501–3502

Meetings:Student Financial Assistance Advisory Committee, 3502–

3503

Employment and Training AdministrationNOTICESAdjustment assistance:

AA Production, Inc., 3529Manhattan Shirt Co. et al., 3529Mission Plastics of DeQueen, 3529Olympus America Inc., 3529–3530River Heights Inc., 3530Roxanne of Pennsylvania, 3530S.D. Warren et al., 3530–3531Sportswear Associates, Inc., 3531

Adjustment assistance and NAFTA adjustment assistance:Penn Mould Industries, Inc., 3528–3529

NAFTA transitional adjustment assistance:River Heights Inc., 3531

Employment Standards AdministrationNOTICESAgency information collection activities:


Energy DepartmentSee Federal Energy Regulatory Commission

Environmental Protection AgencyRULESClean Air Act:

Acid rain provisions—Nitrogen oxides emission reduction program;

correction, 3463–3464NOTICESGrants and cooperative agreement awards:

Project XL (excellence and leadership)—HADCO Corp., 3508–3509

Meetings:Drinking water issues; microbial contaminants and

disinfectants, etc., 3509–3510Environmental Policy and Technology National Advisory

Council—Total Maximum Daily Load Committee, 3510

Science Advisory Board, 3510–3511

Executive Office of the PresidentSee Presidential Documents

Federal Aviation AdministrationRULESAirworthiness directives:

Fokker, 3446–3449

IV Federal Register / Vol. 62, No. 15 / Thursday, January 23, 1997 / Contents

Jetstream, 3449–3451New Piper Aircraft, Inc., 3451–3452

Standard instrument approach procedures, 3452–3456

Federal Bureau of InvestigationNOTICESCommittees; establishment, renewal, termination, etc.:

Criminal Justice Information Services Advisory PolicyBoard, 3528

Federal Communications CommissionNOTICESMeetings:

Federal-State Joint Board on Universal Service, 3511Telecommunications relay services; contribution factor,

1997–1998, 3511–3512

Federal Election CommissionNOTICESMeetings; Sunshine Act, 3512

Federal Energy Regulatory CommissionNOTICESElectric rate and corporate regulation filings:

PanEnergy Power Services, Inc., et al., 3505–3508Environmental statements; availability, etc.:

Duke Power Co., 3508Applications, hearings, determinations, etc.:

Eastern Shore Natural Gas Co., 3503Equitrans, L.P., 3503Koch Gateway Pipeline Co., 3503National Fuel Gas Supply Corp., 3503–3504Northern Natural Gas Co., 3504Public Utility District No. 1 of Lewis County, WA, 3504Questar Pipeline Co., 3504–3505Riverside Pipeline Co., L.P., 3505

Federal Maritime CommissionNOTICESAgreements filed, etc., 3512

Federal Railroad AdministrationNOTICESMeetings:

Maglev Study Advisory Committee, 3550

Federal Reserve SystemNOTICESBanks and bank holding companies:

Change in bank control, 3512Formations, acquisitions, and mergers, 3513

Meetings; Sunshine Act, 3513

Fish and Wildlife ServicePROPOSED RULESEndangered and threatened species:

Bruneau hot springsnail, 3493–3495NOTICESEndangered and threatened species permit applications,

3515–3516Environmental statements; availability, etc.:

Incidental take permit—Daphne, AL; Alabama beach mouse, 3517–3518

Incidental take permits—Lane, Linn, Benton, and Douglas Counties, OR;

northern spotted owl, et al., 3516–3517

Food and Drug AdministrationRULESFood for human consumption:

Food labeling—Health claims; oat products and coronary heart disease,

3584–3601

Geological SurveyNOTICESFederal Geographic Data Committee:

Geospatial positioning accuracy standards; public review,3518

Health and Human Services DepartmentSee Agency for Health Care Policy and ResearchSee Centers for Disease Control and PreventionSee Food and Drug AdministrationSee Health Care Financing AdministrationSee Public Health Service

Health Care Financing AdministrationPROPOSED RULESMedicare:

Health insurance portability; comment request;correction, 3563

NOTICESAgency information collection activities:


Housing and Urban Development DepartmentRULESManufactured home construction and safety standards:

National Manufactured Housing Construction and SafetyAct—

Internal guidance on preemption, 3456–3458NOTICESAgency information collection activities:

Submission for OMB review; comment request, 3514–3515

Grants and cooperative agreements; availability, etc.:Housing assistance payments (Section 8)—

Portfolio Reengineering Demonstration Programguidelines, 3566–3581

Interior DepartmentSee Fish and Wildlife ServiceSee Geological SurveySee Land Management BureauSee National Park ServiceSee Surface Mining Reclamation and Enforcement Office

Internal Revenue ServiceRULESStock and asset consistency rules (Section 338):

Target affiliates that are controlled foreign corporations,3458–3461

PROPOSED RULESMedicare:


International Trade AdministrationNOTICESExport trade certificates of review, 3497

International Trade CommissionNOTICESImport investigations:

Collated roofing nails from China et al., 3524–3525

VFederal Register / Vol. 62, No. 15 / Thursday, January 23, 1997 / Contents

Condensers, parts and products containing same,including air conditioners for automobiles, 3525–3526

Persulfates from China, 3526–3527

Justice DepartmentSee Federal Bureau of InvestigationNOTICESPollution control; consent judgments:

Providence Harbour View Inc., 3527TIC Investment Corp. et al., 3527–3528

Labor DepartmentSee Employment and Training AdministrationSee Employment Standards AdministrationSee Occupational Safety and Health AdministrationSee Pension and Welfare Benefits Administration

Land Management BureauNOTICESMeetings:

Green River Basin Advisory Committee, 3519Resource advisory councils—

Montana, 3519Public land orders:

Oregon, 3519–3520Resource management plans, etc.:

Book Cliffs Conservation Initiative Area, UT, 3520–3521Survey plat filings:

Colorado, 3521

National Aeronautics and Space AdministrationRULESAcquisition regulations:

FAR supplement (NFS); rewriteFederal regulatory reform, 3464–3487

NOTICESMeetings:

Life and Microgravity Sciences and ApplicationsAdvisory Committee, 3536

National Institute of Standards and TechnologyNOTICESGrants and cooperative agreements; availability, etc.:

Fire research program, 3497–3499

National Oceanic and Atmospheric AdministrationRULESFishery conservation and management:

Atlantic tuna, 3490PROPOSED RULESFisheries of the Northeastern United States:

New England Fishery Management Council; meeting,3495

NOTICESFishery conservation and management:

Atlantic striped bass fisheries; 1995 survey, 3499–3500Permits:

Endangered and threatened species, 3500

National Park ServiceNOTICESEnvironmental statements; availability, etc.:

South Side Denali, AK, 3521–3524

Navy DepartmentNOTICESMeetings:

Naval Academy, Board of Visitors, 3501

Nuclear Regulatory CommissionNOTICESEnvironmental statements; availability, etc.:

Power Authority of State of New York, 3538–3539Meetings:

Reactor Safeguards Advisory Committee, 3539–3540Applications, hearings, determinations, etc.:

Southern California Edison Co., 3536–3538

Occupational Safety and Health AdministrationNOTICESState plans; standards approval, etc.:

Minnesota, 3532–3534Washington, 3534–3536

Pension and Welfare Benefits AdministrationPROPOSED RULESMedicare:


Presidential DocumentsPROCLAMATIONSSpecial observances:

Martin Luther King, Jr., Federal Holiday, 1997 (Proc.6967), 3441–3442

National Day of Hope and Renewal, 1997 (Proc. 6968),3443

Public Health ServiceSee Agency for Health Care Policy and ResearchSee Centers for Disease Control and PreventionSee Food and Drug AdministrationNOTICESXenotransplantation, infectious disease issues; guideline

availability; correction, 3563

Securities and Exchange CommissionNOTICESAgency information collection activities:

Proposed collection; comment request, 3540–3541Meetings; Sunshine Act, 3546–3547Self-regulatory organizations; proposed rule changes:

Chicago Board Options Exchange, Inc., 3547–3548National Association of Securities Dealers, Inc., 3548–

3549Applications, hearings, determinations, etc.:

American Odyssey Funds, Inc., et al., 3541–3546

Surface Mining Reclamation and Enforcement OfficePROPOSED RULESPermanent program and abandoned mine land reclamation

plan submissions:Ohio, 3491–3492

Surface Transportation BoardRULESPractice and procedure:

Licensing and related services; user fees, 3487–3490NOTICESRailroad operation, acquisition, construction, etc.:

Reading Blue Mountain & Northern Railroad Co., et al.,3550–3551

Tennessee Valley AuthorityNOTICESAgency information collection activities:


VI Federal Register / Vol. 62, No. 15 / Thursday, January 23, 1997 / Contents

Transportation DepartmentSee Coast GuardSee Federal Aviation AdministrationSee Federal Railroad AdministrationSee Surface Transportation BoardSee Transportation Statistics BureauNOTICESAgency information collection activities:


Transportation Statistics BureauPROPOSED RULESMotor Carrier Financial and Operating Data Collection

Program Negotiated Rulemaking Committee:Intent to establish, 3492–3493

Treasury DepartmentSee Alcohol, Tobacco and Firearms BureauSee Customs ServiceSee Internal Revenue ServiceNOTICESAgency information collection activities:

Submission for OMB review; comment request, 3551–3554

Separate Parts In This Issue

Part IIHousing and Urban Development Department, 3566–3581

Part IIIHealth and Human Services Department, Food and Drug

Administration, 3584–3601

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

Electronic Bulletin BoardFree Electronic Bulletin Board service for Public Lawnumbers, Federal Register finding aids, and a list ofdocuments on public inspection is available on 202–275–1538 or 275–0920.

CFR PARTS AFFECTED IN THIS ISSUE

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

VIIFederal Register / Vol. 62, No. 15 / Thursday, January 23, 1997 / Contents

3 CFRProclamations:6967...................................34416968...................................3443

9 CFR91.......................................3445

14 CFR39 (4 documents) .............3446,

3448, 3449, 345197 (3 documents) .............3452,

3454, 3455

21 CFR101.....................................3584

24 CFR3282...................................3456

26 CFR1.........................................3458Proposed Rules:Ch. I ...................................3563

29 CFRProposed Rules:Ch. XXV.............................3563

30 CFRProposed Rules:935.....................................3491

33 CFR117 (2 documents) ...........3461,

3462157.....................................3463

40 CFR76.......................................3463

42 CFRProposed Rules:Ch. IV.................................3563

48 CFR1815...................................34641816...................................34641852...................................34641870...................................3464

49 CFR1002...................................3487Proposed Rules:Ch. XI.................................3492

50 CFR285.....................................3490Proposed Rules:648.....................................3495

Presidential Documents

3441

Federal Register

Vol. 62, No. 15


Title 3—

The President

Proclamation 6967 of January 17, 1997

Martin Luther King, Jr., Federal Holiday, 1997

By the President of the United States of America

A Proclamation

People throughout the world celebrate the birthday of Dr. Martin LutherKing, Jr., as a tribute to his shining example of love and justice.

Dr. King was a man of clear and powerful vision who offered an uncompro-mising message of brotherhood and hope at a time when violence andracial intolerance tore at the seams of our Nation. In addressing these ills,he often referred to what he called the ‘‘magnificent words’’ of the Declarationof Independence, which proclaimed that ‘‘all men are created equal, thatthey are endowed by their Creator with certain unalienable Rights, thatamong these are Life, Liberty and the pursuit of Happiness.’’ He declaredthese words to be ‘‘a promissory note to which every American was tofall heir,’’ and upon which payment could no longer be delayed. Dr. King’sstruggle made it possible for all of us to move closer to the ideals setforth in the Declaration of Independence and in our Constitution.

Although ours is the most successful multiracial, multicultural society inhuman history, in the words of Dr. King, ‘‘our work is not yet done.’’We have not yet fully realized Dr. King’s dream of a Nation of full oppor-tunity, genuine equality, and consistent fair play for all.

Every citizen must rise to meet that challenge because America’s promiseof freedom and opportunity cannot truly be realized for any of us untilit is realized for every one of us. We all have an obligation to reach outto one another—across the artificial barriers of race, gender, religion, class,and age—so that each member of our society shares fully in the promiseof the American Dream.

In the spring of 1963, Dr. King was arrested in Birmingham, Alabama,while protesting discrimination in public accommodations and employment.From his jail cell, he wrote of his faith that ultimately what was goodin America would prevail over fear and prejudice:

We will reach the goal of freedom in Birmingham and all overthe nation, because the goal of America is freedom. Abused andscorned though we may be, our destiny is tied up with the destinyof America. . . . We will win our freedom because the sacredheritage of our nation and the eternal will of God are embodiedin our echoing demands.

As I begin my second term as the last President of the 20th century, Iask each American to work with me to usher in a new era of hope, reconcili-ation, and fellowship among all our people—rich and poor, young andold, and men and women of every race. I urge all Americans to put intoler-ance behind us, seek common ground, and strive for justice and communityin our Nation.

3442 Federal Register / Vol. 62, No. 15 / Thursday, January 23, 1997 / Presidential Documents

NOW, THEREFORE, I, WILLIAM J. CLINTON, President of the United Statesof America, by virtue of the authority vested in me by the Constitutionand laws of the United States, do hereby proclaim Monday, January 20,1997, as the Martin Luther King, Jr., Federal Holiday. I call upon the peopleof the United States to observe this occasion with appropriate programs,ceremonies, and activities.

IN WITNESS WHEREOF, I have hereunto set my hand this seventeenthday of January, in the year of our Lord nineteen hundred and ninety-seven, and of the Independence of the United States of America the twohundred and twenty-first.

œ–[FR Doc. 97–1743

Filed 1–22–97; 8:45 am]

Billing code 3195–01–P

Presidential Documents

3443Federal Register / Vol. 62, No. 15 / Thursday, January 23, 1997 / Presidential Documents

Proclamation 6968 of January 20, 1997

National Day of Hope and Renewal, 1997

By the President of the United States of America

A Proclamation

Today as we celebrate the last Presidential Inauguration of the 20th centuryand raise our sights with hope and humility toward the challenges of anew age, let us together ask God’s guidance and blessing.

This day marks not a personal or political victory but the triumph of afree people who have freely chosen the course our country will take aswe prepare for the 21st century.

During the past 4 years, we have grown together as a people and as aNation. Touched by tragedy, strengthened by achievement, exhilarated bythe challenges and opportunities ahead, we have come a long way on ourjourney to change America’s course for the better. We have always beena people of hope—hope that we can make tomorrow brighter than today,hope that we can fulfill our Nation’s enduring promise of freedom andopportunity. And we have always known that, by the grace of God andour mutual labor, we can make our hopes reality.

Today, we live in an age of possibility—a moment of rich opportunitythat brings with it a deep responsibility for the future and the generationsto come. We must seize this special moment with a commitment to doright by those who will follow us in this blessed land.

Dr. Martin Luther King, Jr., whose life and vision we honor today, recognizedthat the destiny of each American is bound to the destiny of all Americans;that if we are to go forward, we must go forward together. So, let uspledge today to continue our national journey together. Let us reaffirmour commitment to our shared values of family and faith, work and oppor-tunity. And let us resolve to work together, one Nation under God, tobuild a bridge of hope and renewal to a new American century.

NOW, THEREFORE, I, WILLIAM J. CLINTON, President of the United Statesof America, by the authority vested in me by the Constitution and lawsof the United States, do hereby proclaim January 20, 1997, a National Dayof Hope and Renewal, and I call upon the citizens of this great Nationto observe this day by reflecting on their obligations to one another andto our beloved country and by facing the future with a spirit of hopeand renewal.

IN WITNESS WHEREOF, I have hereunto set my hand this twentieth dayof January, in the year of our Lord nineteen hundred and ninety-seven,and of the Independence of the United States of America the two hundredand twenty-first.

œ–[FR Doc. 97–1744

Filed 1–22–97; 8:45 am]

Billing code 3195–01–P

This section of the FEDERAL REGISTERcontains regulatory documents having generalapplicability and legal effect, most of whichare keyed to and codified in the Code ofFederal Regulations, which is published under50 titles pursuant to 44 U.S.C. 1510.

The Code of Federal Regulations is sold bythe Superintendent of Documents. Prices ofnew books are listed in the first FEDERALREGISTER issue of each week.

Rules and Regulations Federal Register

3445

Vol. 62, No. 15


DEPARTMENT OF AGRICULTURE

Animal and Plant Health InspectionService

9 CFR Part 91

[Docket No. 96–005–2]

Cattle Exportations; Tuberculosis andBrucellosis Test Requirements

AGENCY: Animal and Plant HealthInspection Service, USDA.ACTION: Final rule.

SUMMARY: We are adopting as a finalrule, with two changes, an interim rulethat amended the regulations byeliminating requirements for pre-exportdiagnostic tests for tuberculosis andbrucellosis in certain cattle beingexported from the United States directlyto slaughter. As amended by thisdocument, the rule eliminates thetuberculosis and brucellosis testrequirements for slaughter cattleexported from States free of brucellosisor tuberculosis and those exported tocountries that the Administrator hasdetermined have an acceptable diseasesurveillance system and that agree toshare with the United States anyfindings of brucellosis or tuberculosis inU.S. origin cattle. We believe that thesetest requirements can be eliminatedwithout compromising the integrity ofour brucellosis and tuberculosissurveillance systems. This rulefacilitates the movement of U.S.slaughter cattle to foreign countries.EFFECTIVE DATE: January 23, 1997.FOR FURTHER INFORMATION CONTACT:Dr. Michael David, Senior StaffVeterinarian, Import/Export Animals,National Center for Import and Export,VS, APHIS, 4700 River Road Unit 39,Riverdale, MD 20737–1231; (301) 734–5034.SUPPLEMENTARY INFORMATION:

BackgroundThe regulations in 9 CFR part 91,

‘‘Inspection and Handling of Livestockfor Exportation’’ (referred to below asthe regulations), prescribe conditions forexporting animals from the UnitedStates. Section 91.5 requires, amongother things, that cattle intended forexportation be tested for tuberculosisand brucellosis.

In an interim rule effective onFebruary 15, 1996, and published in theFederal Register on February 23, 1996(61 FR 6917–6918, Docket No. 96–005–1), we amended the cattle exportationregulations in 9 CFR part 91 to removethe tuberculosis and brucellosis testrequirements for cattle being exportedfor slaughter. We amended theregulations to remove these testingrequirements for cattle exported directlyto slaughter in a foreign country, if thereceiving country has a diseasesurveillance system equivalent to that ofthe United States, as determined by theAdministrator of the Animal and PlantHealth Inspection Service (APHIS), andif the receiving country agrees to shareany findings of brucellosis ortuberculosis in U.S. origin cattle withAPHIS. In addition, we amended theregulations to remove these testingrequirements for any cattle movingdirectly to slaughter from a Statedesignated as free of tuberculosis orbrucellosis in 9 CFR 77.1 or 78.41,respectively. This action relievedrestrictions and facilitated themovement of U.S. slaughter cattle toforeign countries.

We solicited comments concerningthe interim rule for 60 days endingApril 23, 1996. We received twocomments by that date. Both commentswere from State Departments ofAgriculture. The comments arediscussed below.

Both commenters agreed with theeconomic benefits of the rule and theactions taken by the interim rule.However, both commenters wereconcerned with the wording aboutMexico having a tuberculosissurveillance system equivalent to that ofthe United States.

We understand and agree with thecommenters’ concerns. Federalslaughter plants in Mexico have atuberculosis surveillance system inplace. This rule deals with exports toMexico of slaughter cattle but not othercattle. In the interim rule we should

have specified that the slaughter plantsin Mexico, to which the slaughter cattleare being exported, have tuberculosissurveillance systems that are acceptableto the United States. As a result of thesecomments, we are making changes inthis final rule to revise two references tospecify that the Administrator hasdetermined that Canada and Mexicohave acceptable tuberculosissurveillance systems at slaughter plantsfor the purposes of receiving cattleexported from the United States forslaughter.

For consistency, we are making thesame changes for brucellosis testing.Therefore, two references will bechanged to specify that theAdministrator has determined thatCanada has an acceptable brucellosissurveillance system at slaughter plantsfor the purposes of receiving cattleexported from the United States forslaughter.

Therefore, based on the rationale setforth in the interim rule and in thisdocument, we are adopting theprovisions of the interim rule as a finalrule, with the changes discussed in thisdocument.

This final rule also affirms theinformation contained in the interimrule concerning Executive Orders 12372and 12988 and the PaperworkReduction Act.

Executive Order 12866 and RegulatoryFlexibility Act

This rule has been reviewed underExecutive Order 12866. The rule hasbeen determined to be not significant forthe purposes of Executive Order 12866and, therefore, has not been reviewed bythe Office of Management and Budget.

As stated in the interim rulepublished in the Federal Register onFebruary 23, 1996, timely compliancewith sections 603 and 604 of theRegulatory Flexibility Act (5 U.S.C. 601et seq.) was impracticable to make thisrule effective in time for U.S. exportersof slaughter cattle to take advantage ofa favorable marketing situation. Thisfinal rule includes the analysis of theeconomic impact of this regulatorychange on small entities.

Our interim rule amended theregulations in § 91.5 to remove thetuberculosis and brucellosis testingrequirements for cattle moving directlyto slaughter in a foreign country. Cattleexported directly for slaughter no longerrequire tuberculosis or brucellosis tests

3446 Federal Register / Vol. 62, No. 15 / Thursday, January 23, 1997 / Rules and Regulations

prior to exportation when the receivingcountry (1) has a disease surveillancesystem at slaughter plants that isacceptable to the United States and (2)agrees to share any findings oftuberculosis or brucellosis in U.S. origincattle with APHIS. Cattle movingdirectly to slaughter present a negligiblerisk of transmitting either brucellosis ortuberculosis to other cattle. Monitoringof these cattle by the receiving countrywill provide information on the sourceof any affected cattle within the UnitedStates. The interim rule also removedthese test requirements for cattle movingdirectly to slaughter when they originatefrom a Class Free State for brucellosis oran Accredited-Free State fortuberculosis. Cattle exported forslaughter from a State which is free ofbrucellosis or tuberculosis present anegligible risk of carrying brucellosis ortuberculosis, respectively.

The Regulatory Flexibility Actrequires that we specifically considerthe economic impact associated withrule changes on small entities. TheSmall Business Administration’sdefinition of a small entity involved incattle exportation is one whose totalsales is less than $0.5 million annually.In 1992 there were 1,034,189 cattle andcalf farms in the United States, of which1,011,591, or 97.8 percent, would beconsidered small entities. The numberof these entities exporting cattle forslaughter to Mexico and Canada orexporting cattle for slaughter from abrucellosis or tuberculosis free State isunknown.

There were 148,906 and 71,781 cattle,except breeding cattle, exported fromthe United States in 1994 and 1995,respectively. In both years, over 99percent of the cattle were exported toMexico and Canada. Approximately 50percent of the cattle exported to Canadamoved directly to slaughter andvirtually all of the cattle exported toMexico moved directly to slaughter.

To the extent that the elimination oftesting requirements represents areduction in operating costs, any entitybypassing this testing will benefiteconomically from the rule change. Thedegree to which an entity is affecteddepends on its market power or on theextent to which the cost reduction canbe retained by the entity. Withoutinformation on either profit margins andoperational expenses of the affectedentities or the supply responsiveness ofthe affected industry, the affect cannotbe precisely predicted. However, weexpect that some exporters willexperience a small economic benefit asa result of eliminating the testrequirements and their associated costs.

The cost of these tests vary dependingupon where and how the tests areperformed. Brucellosis tests may beadministered along with thetuberculosis test. Brucellosis andtuberculosis tests cost pennies peranimal when performed at a marketconcentration center where a card test isused. At a farm the brucellosis andtuberculosis tests cost as much as$19.00 per animal including labor,laboratory costs, and miscellaneouscharges. This cost would be onlyslightly lower for performing thetuberculosis test alone. With such a lowcost per animal, we do not expect thesechanges to have a significant impact onany entity, whether small or large.

Under these circumstances, theAdministrator of the Animal and PlantHealth Inspection Service hasdetermined that this action will nothave a significant economic impact ona substantial number of small entities.

Regulatory ReformThis action is part of the President’s

Regulatory Reform Initiative, which,among other things, directs agencies toremove obsolete and unnecessaryregulations and to find less burdensomeways to achieve regulatory goals.

List of Subjects in 9 CFR Part 91Animal diseases, Animal welfare,

Exports, Livestock, Reporting andrecordkeeping requirements, andTransportation.

Accordingly, the interim ruleamending 9 CFR part 91 which waspublished at 61 FR 6917–6918 onFebruary 23, 1996, is adopted as a finalrule with the following changes:

PART 91—INSPECTION ANDHANDLING OF LIVESTOCK FOREXPORTATION

1. The authority citation for part 91continues to read as follows:

Authority: 21 U.S.C. 105, 112, 113, 114a,120, 121, 134b, 134f, 136, 136a, 612, 613,614, and 618; 46 U.S.C. 466a and 466b; 49U.S.C. 1509(d); 7 CFR 2.22, 2.80, and371.2(d).

2. Section 91.5 is amended by revisingparagraphs (a)(1)(i), (a)(2), (b)(1)(iv) and(b)(2) to read as set forth below.

§ 91.5 Cattle.

* * * * *(a) * * *(1) * * *(i) Cattle exported directly to

slaughter in a country that theAdministrator has determined has anacceptable tuberculosis surveillancesystem at slaughter plants and thatagrees to share any findings of

tuberculosis in U.S. origin cattle withAPHIS; or* * * * *

(2) The Administrator has determinedthat the following countries have anacceptable tuberculosis surveillancesystem at slaughter plants: Canada andMexico.

(b) * * *(1) * * *(iv) Cattle exported directly to

slaughter in a country that theAdministrator has determined has anacceptable brucellosis surveillancesystem at slaughter plants and thatagrees to share any findings ofbrucellosis in U.S. origin cattle withAPHIS; or* * * * *

(2) The Administrator has determinedthat the following country has anacceptable brucellosis surveillancesystem at slaughter plants: Canada.* * * * *

Done in Washington, DC, this 16th day ofJanuary 1997.Donald W. Luchsinger,Acting Administrator, Animal and PlantHealth Inspection Service.[FR Doc. 97–1634 Filed 1–22–97; 8:45 am]BILLING CODE 3410–34–P

DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

14 CFR Part 39

[Docket No. 96–NM–70–AD; Amendment39–9887; AD 97–02–03]

RIN 2120–AA64

Airworthiness Directives; FokkerModel F28 Mark 0100 Series Airplanes

AGENCY: Federal AviationAdministration, DOT.ACTION: Final rule.

SUMMARY: This amendment adopts anew airworthiness directive (AD) that isapplicable to certain Fokker Model F28Mark 0100 series airplanes. It requires aone-time inspection to verify the correctrouting and tension of the flight controllock cables and the elevator controlcables, and rerouting or adjustment ofthe tension of these cables, if necessary.This amendment is prompted by areport indicating that an inspection forcorrect routing and tension of thosecables may not have been accomplishedduring modification of the airplanes atthe factory. The actions specified by thisAD are intended to prevent incorrectrouting and tension of the flight controllock cables and the elevator controlcables, which could result in

3447Federal Register / Vol. 62, No. 15 / Thursday, January 23, 1997 / Rules and Regulations

inadvertent disconnection of thosecables, and consequent reducedcontrollability of the airplane.DATES: Effective February 27, 1997.

The incorporation by reference ofcertain publications listed in theregulations is approved by the Directorof the Federal Register as of February27, 1997.ADDRESSES: The service informationreferenced in this AD may be obtainedfrom Fokker Services B.V., TechnicalSupport Department, P.O. Box 75047,1117 ZN Schiphol Airport, TheNetherlands. This information may beexamined at the Federal AviationAdministration (FAA), TransportAirplane Directorate, Rules Docket,1601 Lind Avenue, SW., Renton,Washington; or at the Office of theFederal Register, 800 North CapitolStreet, NW., suite 700, Washington, DC.FOR FURTHER INFORMATION CONTACT: TimDulin, Aerospace Engineer,Standardization Branch, ANM–113,FAA, Transport Airplane Directorate,1601 Lind Avenue, SW., Renton,Washington 98055–4056; telephone(206) 227–2141; fax (206) 227–1149.SUPPLEMENTARY INFORMATION: Aproposal to amend part 39 of the FederalAviation Regulations (14 CFR part 39) toinclude an airworthiness directive (AD)that is applicable to certain FokkerModel F28 Mark 0100 series airplaneswas published in the Federal Registeron September 30, 1996 (61 FR 51066).That action proposed to require a one-time visual inspection to verify therouting of the flight control lock cablesand to verify the tension of the left andright elevator control cables, andrerouting of cables or adjustment, ifnecessary.

Interested persons have been affordedan opportunity to participate in themaking of this amendment. Nocomments were submitted in responseto the proposal or the FAA’sdetermination of the cost to the public.

Conclusion

The FAA has determined that airsafety and the public interest require theadoption of the rule as proposed.

Cost Impact

The FAA estimates that 5 FokkerModel F28 Mark 0100 series airplanes ofU.S. registry will be affected by this AD,that it will take approximately 8 workhours per airplane to accomplish therequired actions, and that the averagelabor rate is $60 per work hour. Basedon these figures, the cost impact of theAD on U.S. operators is estimated to be$2,400, or $480 per airplane.

The cost impact figure discussedabove is based on assumptions that nooperator has yet accomplished any ofthe requirements of this AD action, andthat no operator would accomplishthose actions in the future if this ADwere not adopted.

Regulatory ImpactThe regulations adopted herein will

not have substantial direct effects on theStates, on the relationship between thenational government and the States, oron the distribution of power andresponsibilities among the variouslevels of government. Therefore, inaccordance with Executive Order 12612,it is determined that this final rule doesnot have sufficient federalismimplications to warrant the preparationof a Federalism Assessment.

For the reasons discussed above, Icertify that this action (1) is not a‘‘significant regulatory action’’ underExecutive Order 12866; (2) is not a‘‘significant rule’’ under DOTRegulatory Policies and Procedures (44FR 11034, February 26, 1979); and (3)will not have a significant economicimpact, positive or negative, on asubstantial number of small entitiesunder the criteria of the RegulatoryFlexibility Act. A final evaluation hasbeen prepared for this action and it iscontained in the Rules Docket. A copyof it may be obtained from the RulesDocket at the location provided underthe caption ADDRESSES.

List of Subjects in 14 CFR Part 39Air transportation, Aircraft, Aviation

safety, Incorporation by reference,Safety.

Adoption of the AmendmentAccordingly, pursuant to the

authority delegated to me by theAdministrator, the Federal AviationAdministration amends part 39 of theFederal Aviation Regulations (14 CFRpart 39) as follows:

PART 39—AIRWORTHINESSDIRECTIVES


Authority: 49 U.S.C. 106(g), 40113, 44701.

§ 39.13 [Amended]2. Section 39.13 is amended by

adding the following new airworthinessdirective:97–02–03 Fokker: Amendment 39–9887.

Docket 96–NM–70–AD.Applicability: Model F28 Mark 0100 series

airplanes having serial numbers 11323through 11326 inclusive, 11423, 11429,11431, 11441, 11444, and 11445; certificatedin any category.

Note 1: This AD applies to each airplaneidentified in the preceding applicabilityprovision, regardless of whether it has beenmodified, altered, or repaired in the areasubject to the requirements of this AD. Forairplanes that have been modified, altered, orrepaired so that the performance of therequirements of this AD is affected, theowner/operator must request approval for analternative method of compliance inaccordance with paragraph (b) of this AD.The request should include an assessment ofthe effect of the modification, alteration, orrepair on the unsafe condition addressed bythis AD; and, if the unsafe condition has notbeen eliminated, the request should includespecific proposed actions to address it.

Compliance: Required as indicated, unlessaccomplished previously.

To prevent incorrect routing and incorrecttension of the flight control lock cables andelevator control cables, which could result ininadvertent disconnection of those cables,and consequent reduced controllability of theairplane; accomplish the following:

(a) Within 60 days after the effective dateof this AD, perform a one-time visualinspection to verify the correct routing andcorrect tension of the flight control lockcables and elevator control cables, inaccordance with Fokker Service BulletinSBF100–27–064, dated September 15, 1994.

(1) If the routing and tension of the flightcontrol lock cables and elevator controlcables are correct, as specified in the servicebulletin, no further action is required by thisAD.

(2) If the routing and/or tension of theflight control lock cables or the elevatorcontrol cables is not correct, as specified inthe service bulletin, prior to further flight,reroute and/or adjust the tension of thosecables, as necessary, in accordance with theservice bulletin.

(b) An alternative method of compliance oradjustment of the compliance time thatprovides an acceptable level of safety may beused if approved by the Manager,Standardization Branch, ANM–113, FAA,Transport Airplane Directorate. Operatorsshall submit their requests through anappropriate FAA Principal MaintenanceInspector, who may add comments and thensend it to the Manager, StandardizationBranch, ANM–113.

Note 2: Information concerning theexistence of approved alternative methods ofcompliance with this AD, if any, may beobtained from the Standardization Branch,ANM–113.

(c) Special flight permits may be issued inaccordance with sections 21.197 and 21.199of the Federal Aviation Regulations (14 CFR21.197 and 21.199) to operate the airplane toa location where the requirements of this ADcan be accomplished.

(d) The actions shall be done in accordancewith Fokker Service Bulletin SBF100–27–064, dated September 15, 1994. Thisincorporation by reference was approved bythe Director of the Federal Register inaccordance with 5 U.S.C. 552(a) and 1 CFRpart 51. Copies may be obtained from FokkerServices B.V., Technical SupportDepartment, P.O. Box 75047, 1117 ZNSchiphol Airport, The Netherlands. Copies


may be inspected at the FAA, TransportAirplane Directorate, 1601 Lind Avenue,SW., Renton, Washington; or at the Office ofthe Federal Register, 800 North CapitolStreet, NW., suite 700, Washington, DC.

(e) This amendment becomes effective onFebruary 27, 1997.

Issued in Renton, Washington, on January7, 1997.Darrell M. Pederson,Acting Manager, Transport AirplaneDirectorate, Aircraft Certification Service.[FR Doc. 97–811 Filed 1–22–97; 8:45 am]BILLING CODE 4910–13–U

14 CFR Part 39


RIN 2120–AA64

Airworthiness Directives; FokkerModel F27 Mark 050 and F28 Mark 0100Series Airplanes


SUMMARY: This amendment adopts anew airworthiness directive (AD),applicable to certain Fokker Model F27Mark 050 and F28 Mark 0100 seriesairplanes, that requires installation of abonding cable for the housing of thelavatory pump and filter assembly andthe lavatory bowl. This amendment isprompted by a report indicating that thehousing of the lavatory pump and filterassembly is not grounded properly. Theactions specified by this AD areintended to prevent such impropergrounding, which could result in anelectrical fire and/or injury topassengers and crewmembers.DATES: Effective February 27, 1997.

The incorporation by reference ofcertain publications listed in theregulations is approved by the Directorof the Federal Register as of February27, 1997.ADDRESSES: The service informationreferenced in this AD may be obtainedfrom Fokker Services B.V., TechnicalSupport Department, P.O. Box 75047,1117 ZN Schiphol Airport, TheNetherlands. This information may beexamined at the Federal AviationAdministration (FAA), TransportAirplane Directorate, Rules Docket,1601 Lind Avenue, SW., Renton,Washington; or at the Office of theFederal Register, 800 North CapitolStreet, NW., suite 700, Washington, DC.FOR FURTHER INFORMATION CONTACT:Ruth Harder, Aerospace Engineer,Standardization Branch, ANM–113,FAA, Transport Airplane Directorate,

1601 Lind Avenue, SW., Renton,Washington 98055–4056; telephone(206) 227–1721; fax (206) 227–1149.SUPPLEMENTARY INFORMATION: Aproposal to amend part 39 of the FederalAviation Regulations (14 CFR part 39) toinclude an airworthiness directive (AD)that is applicable to certain FokkerModel F27 Mark 050 and F28 Mark0100 series airplanes was published inthe Federal Register on October 1, 1996(61 FR 51255). That action proposed torequire installation of a bonding cablefor the housing of the lavatory pumpand filter assembly and the lavatorybowl.

Interested persons have been affordedan opportunity to participate in themaking of this amendment. Dueconsideration has been given to thesingle comment received.

The commenter supports theproposed rule.

ConclusionAfter careful review of the available

data, including the comment notedabove, the FAA has determined that airsafety and the public interest require theadoption of the rule as proposed.

Cost ImpactThe FAA estimates that 48 Model F28

Mark 0100 series airplanes of U.S.registry will be affected by this AD, thatit will take approximately 6 work hoursper airplane to accomplish the requiredactions, and that the average labor rateis $60 per work hour. Required partswill cost approximately $209 perairplane. Based on these figures, the costimpact of the AD on U.S. operators ofModel F28 Mark 0100 series airplanes ofU.S. registry is estimated to be $27,312,or $569 per airplane.

The cost impact figures discussedabove are based on assumptions that nooperator has yet accomplished any ofthe requirements of this AD action, andthat no operator would accomplishthose actions in the future if this ADwere not adopted.

Currently, there are no Model F27Mark 050 series airplanes on the U.S.Register. However, should an affectedairplane be imported and placed on theU.S. Register in the future, it wouldrequire approximately 2 work hours toaccomplish the proposed actions, at anaverage labor rate of $60 per work hour.Required parts would costapproximately $88 per airplane. Basedon these figures, the cost impact of thisAD on Model F27 Mark 050 seriesairplanes would be $208 per airplane.


not have substantial direct effects on the

States, on the relationship between thenational government and the States, oron the distribution of power andresponsibilities among the variouslevels of government. Therefore, inaccordance with Executive Order 12612,it is determined that this final rule doesnot have sufficient federalismimplications to warrant the preparationof a Federalism Assessment.

For the reasons discussed above, Icertify that this action (1) is not a‘‘significant regulatory action’’ underExecutive Order 12866; (2) is not a‘‘significant rule’’ under DOTRegulatory Policies and Procedures (44FR 11034, February 26, 1979); and (3)will not have a significant economicimpact, positive or negative, on asubstantial number of small entitiesunder the criteria of the RegulatoryFlexibility Act. A final evaluation hasbeen prepared for this action and it iscontained in the Rules Docket. A copyof it may be obtained from the RulesDocket at the location provided underthe caption ADDRESSES.

List of Subjects in 14 CFR Part 39

Air transportation, Aircraft, Aviationsafety, Incorporation by reference,Safety.

Adoption of the Amendment

Accordingly, pursuant to theauthority delegated to me by theAdministrator, the Federal AviationAdministration amends part 39 of theFederal Aviation Regulations (14 CFRpart 39) as follows:



Authority: 49 U.S.C. 106(g), 40113, 44701.


adding the following new airworthinessdirective:97–02–06 Fokker: Amendment 39–9890.

Docket 96–NM–79–AD.Applicability: Model F27 Mark 050 series

airplanes, as listed in Fokker Service BulletinSBF50–25–046, Revision 1, dated August 5,1994; and Model F28 Mark 0100 seriesairplanes, as listed in Fokker Service BulletinSBF100–25–069, dated July 13, 1994, asrevised by Service Bulletin ChangeNotification (SBCN) SBF100–25–069/01,dated February 15, 1995; certificated in anycategory.

Note 1: This AD applies to each airplaneidentified in the preceding applicabilityprovision, regardless of whether it has beenmodified, altered, or repaired in the areasubject to the requirements of this AD. Forairplanes that have been modified, altered, or


repaired so that the performance of therequirements of this AD is affected, theowner/operator must request approval for analternative method of compliance inaccordance with paragraph (b) of this AD.The request should include an assessment ofthe effect of the modification, alteration, orrepair on the unsafe condition addressed bythis AD; and, if the unsafe condition has notbeen eliminated, the request should includespecific proposed actions to address it.


To prevent improper grounding of thehousing of the lavatory pump and filterassembly, which could result in an electricalfire and/or injury to passengers andcrewmembers, accomplish the following:

(a) Within 6 months after the effective dateof this AD, install a bonding cable for thehousing of the lavatory pump and filterassembly and the lavatory bowl in

accordance with Fokker Service BulletinSBF50–25–046, Revision 1, dated August 5,1994 (for Model F27 Mark 050 seriesairplanes); and Service Bulletin SBF100–25–069, dated July 13, 1994, as revised byService Bulletin Change Notification (SBCN)SBF100–25–069/01, dated February 15, 1995(for Model F28 Mark 0100 series airplanes);as applicable.

(b) An alternative method of compliance oradjustment of the compliance time thatprovides an acceptable level of safety may beused if approved by the Manager, Manager,Standardization Branch, ANM–113, FAA,Transport Airplane Directorate. Operatorsshall submit their requests through anappropriate FAA Principal MaintenanceInspector, who may add comments and thensend it to the Manager, StandardizationBranch, ANM–113.

Note 2: Information concerning theexistence of approved alternative methods of

compliance with this AD, if any, may beobtained from the Standardization Branch,ANM–113.

(c) Special flight permits may be issued inaccordance with sections 21.197 and 21.199of the Federal Aviation Regulations (14 CFR21.197 and 21.199) to operate the airplane toa location where the requirements of this ADcan be accomplished.

(d) The installation shall be done inaccordance with Fokker Service BulletinSBF50–25–046, Revision 1, dated August 5,1994; and Fokker Service Bulletin SBF100–25–069, dated July 13, 1994, as revised byService Bulletin Change Notification (SBCN)SBF100–25–069/01, dated February 15, 1995;as applicable. Fokker Service BulletinSBF50–25–046, Revision 1, dated August 5,1994, contains the following list of effectivepages:

Page No. Revision level shown on page Date shown on page

1 ........................................................................................... 1 .......................................................................................... August 5, 1994.2–3 ....................................................................................... Original ................................................................................ August 1, 1994.

This incorporation by reference wasapproved by the Director of the FederalRegister in accordance with 5 U.S.C.552(a) and 1 CFR part 51. Copies maybe obtained from Fokker Services B.V.,Technical Support Department, P.O.Box 75047, 1117 ZN Schiphol Airport,The Netherlands. Copies may beinspected at the FAA, TransportAirplane Directorate, 1601 LindAvenue, SW., Renton, Washington; or atthe Office of the Federal Register, 800North Capitol Street, NW., suite 700,Washington, DC.

(e) This amendment becomes effectiveon February 27, 1997.

Issued in Renton, Washington, on January8, 1997.Darrell M. Pederson,Acting Manager, Transport AirplaneDirectorate, Aircraft Certification Service.[FR Doc. 97–882 Filed 1–22–97; 8:45 am]BILLING CODE 4910–13–U

14 CFR Part 39


RIN 2120–AA64

Airworthiness Directives; JetstreamModel 4101 Airplanes


SUMMARY: This amendment supersedesan existing airworthiness directive (AD),applicable to certain Jetstream Model4101 airplanes, that currently requires,

among other things, replacing certainyaw damper servos in the autopilotsystem, or rendering the servoinoperative. The actions specified bythat AD are intended to preventoverheat failure of the Flight ControlComputer (FCC), which could result insmoke in the flight deck that couldinhibit the ability of the flightcrew tosafely operate and land the airplane.This new amendment requiresinstallation of circuit breakers on theavionics relay panel, which, whenaccomplished, constitutes terminatingaction for the previous requirements ofthe AD.DATES: Effective February 27, 1997.

The incorporation by reference ofJetstream Service Bulletin J41–22–006,dated July 1, 1996, as listed in theregulations, is approved by the Directorof the Federal Register as of February27, 1997.

The incorporation by reference ofJetstream Alert Service Bulletin J41–22–005, dated July 1, 1996, as listed in theregulations, was approved previously bythe Director of the Federal Register as ofOctober 1, 1996 (61 FR 48614,September 16, 1996).ADDRESSES: The service informationreferenced in this AD may be obtainedfrom Jetstream Aircraft, Inc., P.O. Box16029, Dulles International Airport,Washington, DC 20041–6029. Thisinformation may be examined at theFederal Aviation Administration (FAA),Transport Airplane Directorate, RulesDocket, 1601 Lind Avenue, SW.,Renton, Washington; or at the Office ofthe Federal Register, 800 North CapitolStreet, NW., suite 700, Washington, DC.

FOR FURTHER INFORMATION CONTACT:William Schroeder, Aerospace Engineer,Standardization Branch, ANM–113,FAA, Transport Airplane Directorate,1601 Lind Avenue, SW., Renton,Washington 98055–4056; telephone(206) 227–2148; fax (206) 227–1149.SUPPLEMENTARY INFORMATION: Aproposal to amend part 39 of the FederalAviation Regulations (14 CFR part 39)by superseding AD 96–19–06,amendment 39–9754 (61 FR 48614,September 16, 1996), which isapplicable to certain Jetstream Model4101 airplanes, was published in theFederal Register on October 23, 1996(61 FR 54967). The action proposed tosupersede AD 96–19–06 to continue torequire the actions currently specifiedin that AD:

1. A one-time inspection of theairplane records to determine:—the serial number,—the total number of hours time-in-

service accumulated,—the date of installation of the yaw

damper servo in the autopilot system;and

—the date of installation of a particularkit, if installed.2. Removal and replacement of certain

yaw damper servos, or rendering theyaw damper servo inoperative.

The action also proposed to add arequirement to install circuit breakerson the avionics relay panel. Whenaccomplished, this installation wouldconstitute terminating action for theprevious requirements of the AD.

Interested persons have been affordedan opportunity to participate in themaking of this amendment. No


comments were submitted in responseto the proposal or the FAA’sdetermination of the cost to the public.

ConclusionThe FAA has determined that air

safety and the public interest require theadoption of the rule as proposed.

Cost ImpactThere are approximately 55 Jetstream

Model 4101 airplanes of U.S. registrythat will be affected by this AD.

The actions that are currentlyrequired by AD 96–19–06 takeapproximately 2 to 5 work hours perairplane to accomplish, at an averagelabor rate of $60 per work hour. Basedon these figures, the cost impact of thepreviously required actions on U.S.operators is estimated to be between$6,600 and $16,500, or between $120and $300 per airplane.

The new action (installation of circuitbreakers) that is required by this newAD will take approximately 3 workhours per airplane to accomplish, at anaverage labor rate of $60 per work hour.Required parts will be provided by themanufacturer at no cost to operators.Based on these figures, the cost impactof the installation requirement of thisAD on U.S. operators is estimated to be$9,900, or $180 per airplane.

The cost impact figures discussedabove are based on assumptions that nooperator has yet accomplished any ofthe requirements of this AD action, andthat no operator would accomplishthose actions in the future if this ADwere not adopted.


not have substantial direct effects on theStates, on the relationship between thenational government and the States, oron the distribution of power andresponsibilities among the variouslevels of government.

Therefore, in accordance withExecutive Order 12612, it is determinedthat this final rule does not havesufficient federalism implications towarrant the preparation of a FederalismAssessment.

For the reasons discussed above, Icertify that this action (1) is not a‘‘significant regulatory action’’ underExecutive Order 12866; (2) is not a‘‘significant rule’’ under DOTRegulatory Policies and Procedures (44FR 11034, February 26, 1979); and (3)will not have a significant economicimpact, positive or negative, on asubstantial number of small entitiesunder the criteria of the RegulatoryFlexibility Act. A final evaluation hasbeen prepared for this action and it is

contained in the Rules Docket. A copyof it may be obtained from the RulesDocket at the location provided underthe caption ADDRESSES.







Authority: 49 U.S.C. 106(g), 40113, 44701.


removing amendment 39–9754 (61 FR48614, September 16, 1996), and byadding a new airworthiness directive(AD), amendment 39–9889, to read asfollows:97–02–05 Jetstream Aircraft Limited:

Amendment 39–9889. Docket 96–NM–243–AD. Supersedes AD 96–19–06,Amendment 39–9754.

Applicability: Model 4101 airplanes havingserial numbers 41004 through 41092,inclusive; on which Jetstream ServiceBulletin J41–22–006, dated July 1, 1996 (KitJK42867), has not been accomplished;certificated in any category.

Note 1: This AD applies to each airplaneidentified in the preceding applicabilityprovision, regardless of whether it has beenmodified, altered, or repaired in the areasubject to the requirements of this AD. Forairplanes that have been modified, altered, orrepaired so that the performance of therequirements of this AD is affected, theowner/operator must request approval for analternative method of compliance inaccordance with paragraph (c) of this AD.The request should include an assessment ofthe effect of the modification, alteration, orrepair on the unsafe condition addressed bythis AD; and, if the unsafe condition has notbeen eliminated, the request should includespecific proposed actions to address it.


To prevent overheat failure of the FlightControl Computer (FCC), which could resultin smoke in the flight deck that could inhibitthe ability of the flightcrew to safely operateand land the airplane, accomplish thefollowing:

(a) Within 14 days after October 1, 1996(the effective date of AD 96–19–06), performa one-time inspection of the airplane recordsto determine the serial number, the totalnumber of hours time-in-service

accumulated, and the date of installation ofthe yaw damper servo in the autopilotsystem; and to determine the date ofinstallation of Kit JK42716 (referenceJetstream Service Bulletin J41–53–016 or J41–22–007), if installed. Accomplish theinspection in accordance with Part 1 of theAccomplishment Instructions of JetstreamAlert Service Bulletin J41–A22–005, datedJuly 1, 1996. Thereafter, either remove andreplace the yaw damper servo and install KitJK42716 (if not installed previously), orrender the yaw damper servo inoperative, inaccordance with Part 2 or 3 of the alertservice bulletin, respectively, at the timespecified in paragraph (a)(1), (a)(2), or (a)(3)of this AD, as applicable.

(1) If Kit JK42716 has not been installed:Prior to the accumulation of 1,000 hours totaltime-in-service on the yaw damper servo, orwithin 30 days after October 1, 1996,whichever occurs later.

(2) If Kit JK42716 has been installed andthe yaw damper servo was installed prior tothe installation of Kit JK42716: Prior to theaccumulation of 1,000 hours total time-in-service on the yaw damper servo, or within30 days after October 1, 1996, whicheveroccurs later.

(3) If Kit JK42716 has been installed andthe yaw damper servo was installed after theinstallation of Kit JK42716: Prior to theaccumulation of 3,000 total hours time-in-service on the yaw damper servo, or within30 days after October 1, 1996, whicheveroccurs later.

(b) Within 90 days after the effective dateof this AD, install circuit breakers on theavionics relay panel (Kit JK42867) inaccordance with Jetstream Service BulletinJ41–22–006, dated July 1, 1996.Accomplishment of this installationconstitutes terminating action for therequirements of paragraph (a) of this AD.

(c) An alternative method of compliance oradjustment of the compliance time thatprovides an acceptable level of safety may beused if approved by the Manager,Standardization Branch, ANM–113, FAA,Transport Airplane Directorate. Operatorsshall submit their requests through anappropriate FAA Principal MaintenanceInspector, who may add comments and thensend it to the Manager, StandardizationBranch, ANM–113.

Note 2: Information concerning theexistence of approved alternative methods ofcompliance with this AD, if any, may beobtained from the Standardization Branch,ANM–113.

(d) Special flight permits may be issued inaccordance with sections 21.197 and 21.199of the Federal Aviation Regulations (14 CFR21.197 and 21.199) to operate the airplane toa location where the requirements of this ADcan be accomplished.

(e) The actions shall be done in accordancewith Jetstream Alert Service Bulletin J41–A22–005, dated July 1, 1996; and JetstreamService Bulletin J41–22–006, dated July 1,1996. The incorporation by reference ofJetstream Alert Service Bulletin J41–A22–005, dated July 1, 1996, was approvedpreviously by the Director of the FederalRegister in accordance with 5 U.S.C. 552(a)and 1 CFR part 51 as of October 1, 1996 (61


FR 48614, September 16, 1996). Theincorporation by reference of JetstreamService Bulletin J41–22–006, dated July 1,1996, was approved by the Director of theFederal Register in accordance with 5 U.S.C.552(a) and 1 CFR part 51. Copies may beobtained from Jetstream Aircraft, Inc., P.O.Box 16029, Dulles International Airport,Washington, DC 20041–6029. Copies may beinspected at the FAA, Transport AirplaneDirectorate, 1601 Lind Avenue, SW., Renton,Washington; or at the Office of the FederalRegister, 800 North Capitol Street, NW., suite700, Washington, DC.

(f) This amendment becomes effective onJanuary 23, 1997.

Issued in Renton, Washington, on February27, 1997.Darrell M. Pederson,Acting Manager, Transport AirplaneDirectorate, Aircraft Certification Service.[FR Doc. 97–881 Filed 1–22–97; 8:45 am]BILLING CODE 4910–13–U

14 CFR Part 39

[Docket No. 95–CE–21–AD; Amendment 39–9885; AD 97–02–01]

RIN 2120–AA64

Airworthiness Directives; The NewPiper Aircraft, Inc. (Formerly PiperAircraft Corporation) Model PA–31T2Airplanes


SUMMARY: This amendment adopts anew airworthiness directive (AD) thatapplies to The New Piper Aircraft, Inc.(Piper) Model PA–31T2 airplanes thathave a Parker Hannifin Wheel and BrakeConversion Kit 199–111 installed inaccordance with Supplemental TypeCertificate (STC) SA599GL. This actionrequires rerouting the landing gearemergency extension line. This ADresults from three incidents of the brakecylinder contacting the landing gearemergency extension air line on bothwheel wells. The actions specified bythis AD are intended to prevent thebrake cylinder from chafing against thelanding gearemergency extension airline when the gear is in the up andlocked position, which could result indamage to the air line and subsequentloss of emergency gear extensioncapability.DATES: Effective February 14, 1997.

The incorporation by reference ofcertain publications listed in theregulations is approved by the Directorof the Federal Register as of February14, 1997.ADDRESSES: Service information thatapplies to this AD may be obtained from

the Parker Hannifin Corporation,Aircraft Wheel & Brake, 1160 CenterRoad, P.O. Box 158, Avon, Ohio 44011;telephone (216) 937–6211; facsimile(216) 937–5409. This information mayalso be examined at the FederalAviation Administration (FAA), CentralRegion, Office of the Assistant ChiefCounsel, Attention: Rules Docket 95–CE–21–AD, Room 1558, 601 E. 12thStreet, Kansas City, Missouri 64106; orat the Office of the Federal Register, 800North Capitol Street, NW., suite 700,Washington, DC.FOR FURTHER INFORMATION CONTACT: Mr.Nick Miller, Aerospace Engineer,Chicago Aircraft Certification Office,FAA, 2300 East Devon Avenue, DesPlaines, Illinois 60018; telephone (847)294–7837; facsimile (847) 294–7834.

SUPPLEMENTARY INFORMATION:

Events Leading to This ActionA proposal to amend part 39 of the

Federal Aviation Regulations (14 CFRpart 39) to include an AD that wouldapply to Piper Model PA–31T2airplanes that have a Parker HannifinWheel and Brake Conversion Kit 199–111 installed in accordance with STCSA599GL was published in the FederalRegister on June 13, 1996 (61 FR 29992).The action proposed to require reroutingthe landing gear emergency extensionair line. Accomplishment of theproposed action as specified in thesupplemental notice of proposedrulemaking (NPRM) would be inaccordance with Parker HannifinService Bulletin SB7034, Revision B,dated December 19, 1995.

The supplemental NPRM results fromthree incidents of the brake cylindercontacting the landing gear emergencyextension air line on both wheels.

Interested persons have been affordedan opportunity to participate in themaking of this amendment. Nocomments were received on theproposed rule or the FAA’sdetermination of the cost to the public.

The FAA’s DeterminationAfter careful review of all available

information related to the subjectpresented above, the FAA hasdetermined that air safety and thepublic interest require the adoption ofthe rule as proposed except for minoreditorial corrections. The FAA hasdetermined that these minor correctionswill not change the meaning of the ADand will not add any additional burdenupon the public than was alreadyproposed.

Cost ImpactThe FAA estimates that 62 Piper

Model PA31–T2 airplanes in the U.S.

registry could incorporate ParkerHannifin Wheel and Brake ConversionKit 199–111 (in accordance with STCSA599GL), that it will takeapproximately 4 workhours per airplaneto accomplish the required action, andthat the average labor rate isapproximately $60 an hour. Parts costapproximately $20 per airplane. Basedon these figures, the total cost impact ofthe AD on U.S. operators could be asmuch as $16,120 if all affected airplaneshad the referenced conversion kitinstalled.

Parker Hannifin has informed theFAA that it has distributed 31 kits(shipped after March 28, 1994) to PiperModel PA31T2 airplane owners/operators. Kits shipped after March 28,1994, included the replacement partsreferenced in Parker Hannifin SB7034,Revision B, dated December 19, 1995.Based on each of the 31 kits beingincorporated on an affected airplane, thecost impact of this AD on U.S. ownersand operators is reduced 50 percentfrom $16,120 to $8,060. The reductionresults from the difference between the62 airplanes that are type certificated tohave a Parker Hannifin Wheel and BrakeConversion Kit 199–111 incorporated(in accordance with STC SA599GL) andthe 31 kits that have already beendistributed.

Regulatory Impact

The regulations adopted herein willnot have substantial direct effects on theStates, on the relationship between thenational government and the States, oron the distribution of power andresponsibilities among the variouslevels of government. Therefore, inaccordance with Executive Order 12612,it is determined that this final rule doesnot have sufficient federalismimplications to warrant the preparationof a Federalism Assessment.

For the reasons discussed above, Icertify that this action (1) is not a‘‘significant regulatory action’’ underExecutive Order 12866; (2) is not a‘‘significant rule’’ under DOTRegulatory Policies and Procedures (44FR 11034, February 26, 1979); and (3)will not have a significant economicimpact, positive or negative, on asubstantial number of small entitiesunder the criteria of the RegulatoryFlexibility Act. A copy of the finalevaluation prepared for this action iscontained in the Rules Docket. A copyof it may be obtained by contacting theRules Docket at the location providedunder the caption ADDRESSES.








Authority: 49 USC 106(g), 40113, 44701.


adding a new airworthiness directive(AD) to read as follows:97–02–01 The New Piper Aircraft, Inc.:

Amendment 39–9885; Docket No. 95–CE–21–AD.

Applicability: Model PA31T2 airplanes(serial numbers31T–8166001 through 31T–8166062), certificated in any category, thathave a Parker Hannifin Wheel and BrakeConversion Kit 199–111 incorporated inaccordance with Supplemental TypeCertificate (STC) SA599GL.

Note 1: This AD applies to each airplaneidentified in the preceding applicabilityprovision, regardless of whether it has beenmodified, altered, or repaired in the areasubject to the requirements of this AD. Forairplanes that have been modified, altered, orrepaired so that the performance of therequirements of this AD is affected, theowner/operator must request approval for analternative method of compliance inaccordance with paragraph (c) of this AD.Therequest should include an assessment of theeffect of the modification, alteration, or repairon the unsafe condition addressed by thisAD; and, if the unsafe condition has not beeneliminated, the request should includespecific proposed actions to address it.

Compliance: Required within the next 100hours time-in-service after the effective dateof this AD, unless already accomplished.

To prevent the brake cylinder from chafingagainst the landing gear emergency extensionair line when the gear is in the up and lockedposition, which could result in damage to theair line and subsequent loss of emergencygear extension capability, accomplish thefollowing:

(a) Reroute the landing gear emergencyextension air line in accordance with theACCOMPLISHMENT INSTRUCTIONSsection of Parker Hannifin Service BulletinSB7034, Revision B, dated December 19,1995.

(b) Special flight permits may be issued inaccordance with sections 21.197 and 21.199of the Federal Aviation Regulations (14 CFR21.197 and 21.199) to operate the airplane toa location where the requirements of this ADcan be accomplished.

(c) An alternative method of compliance oradjustment of the compliance time thatprovides an equivalent level of safety may beapproved by the Manager, Chicago AircraftCertification Office (ACO), FAA, 2300 EastDevon Avenue, Des Plaines, Illinois 60018.The request shall be forwarded through anappropriate FAA Maintenance Inspector,who may add comments and then send it tothe Manager, Chicago ACO.

Note 2: Information concerning theexistence of approved alternative methods ofcompliance with this AD, if any, may beobtained from the Chicago ACO.

(d) The rerouting required by this AD shallbe done in accordance with Parker HannifinService Bulletin SB7034, Revision B, datedDecember 19, 1995. This incorporation byreference was approved by the Director of theFederal Register in accordance with 5 U.S.C.552(a) and 1 CFR part 51. Copies may beobtained from the Parker HannifinCorporation, Aircraft Wheel & Brake, 1160Center Road, P.O. Box 158, Avon, Ohio44011. Copies may be inspected at the FAA,Central Region, Office of the Assistant ChiefCounsel, Room 1558, 601 E. 12th Street,Kansas City, Missouri, or at the Office of theFederal Register, 800 North Capitol Street,NW., suite 700, Washington, DC.

(e) This amendment (39–9885) becomeseffective on February 14, 1997.

Issued in Kansas City, Missouri, on January6, 1997.Henry A. Armstrong,Acting Manager, Small Airplane Directorate,Aircraft Certification Service.[FR Doc. 97–880 Filed 1–22–97; 8:45 am]BILLING CODE 4910–13–U

14 CFR Part 97

[Docket No. 28777; Amdt. No. 1776]

Standard Instrument ApproachProcedures; MiscellaneousAmendments

AGENCY: Federal AviationAdministration (FAA), DOT.ACTION: Final rule.

SUMMARY: This amendment establishes,amends, suspends, or revokes StandardInstrument Approach Procedures(SIAPs) for operations at certainairports. These regulatory actions areneeded because of the adoption of newor revised criteria, or because of changesoccurring in the National AirspaceSystem, such as the commissioning ofnew navigational facilities, addition ofnew obstacles, or changes in air trafficrequirements. These changes aredesigned to provide safe and efficientuse of the navigable airspace and topromote safe flight operations underinstrument flight rules at the affectedairports.DATES: An effective date for each SIAPis specified in the amendatoryprovisions.

Incorporation by reference-approvedby the Director of the Federal Registeron December 31, 1980, and reapprovedas of January 1, 1982.ADDRESSES: Availability of mattersincorporated by reference in theamendment is as follows.

For Examination—1. FAA Rules Docket, FAA

Headquarters Building, 800Independence Avenue, SW.,Washington, DC 20591;

2. The FAA Regional Office of theregion in which the affected airport islocated; or

3. The Flight Inspection Area Officewhich originated the SIAP.

For Purchase—Individual SIAPcopies may be obtained from:

1. FAA Public Inquiry Center (APA–200), FAA Headquarters Building, 800Independence Avenue, SW.,Washington, DC 20591; or

2. The FAA Regional Office of theregion in which the affected airport islocated.

By Subscription—Copies of all SIAPs,mailed once every 2 weeks, are for saleby the Superintendent of Documents,U.S. Government Printing Office,Washington, DC 20402.FOR FURTHER INFORMATION CONTACT: PaulJ. Best, Flight Procedures StandardsBranch (AFS–420), Technical ProgramsDivision, Flight Standards Service,Federal Aviation Administration, 800Independence Avenue, SW.,Washington, DC 20591; telephone (202)267–8277.SUPPLEMENTARY INFORMATION: Thisamendment to part 97 of the FederalAviation Regulations (14 CFR part 97)establishes, amends, suspends, orrevokes Standard Instrument ApproachProcedures (SIAPs). The completeregulatory description of each SIAP iscontained in official FAA formdocuments which are incorporated byreference in this amendment under 5U.S.C. 552(a), 1 CFR part 51, and § 97.20of the Federal Aviation Regulations(FAR). The applicable FAA Forms areidentified as FAA Forms 8260–3, 8260–4, and 8260–5. Materials incorporatedby reference are available forexamination or purchase as statedabove.

The large number of SIAPs, theircomplex nature, and the need for aspecial format make their verbatimpublication in the Federal Registerexpensive and impractical. Further,airmen do not use the regulatory text ofthe SIAPs, but refer to their graphicdepiction on charts printed bypublishers of aeronautical materials.Thus, the advantages of incorporationby reference are realized and


publication of the complete descriptionof each SIAP contained in FAA formdocuments is unnecessary. Theprovisions of this amendment state theaffected CFR (and FAR) sections, withthe types and effective dates of theSIAPs. This amendment also identifiesthe airport, its location, the procedureidentification and the amendmentnumber.

The Rule

This amendment to part 97 is effectiveupon publication of each separate SIAPas contained in the transmittal. SomeSIAP amendments may have beenpreviously issued by the FAA in aNational Flight Data Center (FDC)Notice to Airmen (NOTAM) as anemergency action of immediate flightsafety relating directly to publishedaeronautical charts. The circumstanceswhich created the need for some SIAPamendments may require making themeffective in less than 30 days. For theremaining SIAPs, an effective date atleast 30 days after publication isprovided.

Further, the SIAPs contained in thisamendment are based on the criteriacontained in the U.S. Standard forTerminal Instrument ApproachProcedures (TERPS). In developingthese SIAPs, the TERPS criteria wereapplied to the conditions existing oranticipated at the affected airports.Because of the close and immediaterelationship between these SIAPs andsafety in air commerce. I find that noticeand public procedure before adoptingthese SIAPs are impracticable andcontrary to the public interest and,where applicable, that good cause existsfor making some SIAPs effective in lessthan 30 days.

The FAA has determined that thisregulation only involves an establishedbody of technical regulations for whichfrequent and routing amendments arenecessary to keep them operationallycurrent. It, therefore—(1) is not a‘‘significant regulatory action’’ underExecutive Order 12866; (2) is not a‘‘significant rule’’ under DOTRegulatory Policies and Procedures (44FR 11034; February 26, 1979); and (3)does not warrant preparation of aregulatory evaluation as the anticipatedimpact is so minimal. For the samereason, the FAA certifies that thisamendment will not have a significanteconomic impact on a substantialnumber of small entities under thecriteria of the Regulatory Flexibility Act.


Air traffic control, Airports,Navigation (air).

Issued in Washington, DC, on January 10,1997.Thomas C. Accardi,Director, Flight Standards Service.


authority delegated to me, part 97 of theFederal Aviation Regulations (14 CFRpart 97) is amended by establishing,amending, suspending, or revokingStandard Instrument ApproachProcedures, effective at 0901 UTC onthe dates specified, as follows:

PART 97–STANDARD INSTRUMENTAPPROACH PROCEDURES

1. The authority citation for part 97 isrevised to read as follows:

Authority: 49 U.S.C. 106(g), 40103, 40113,40120, 44701; and 14 CFR 11.49(b)(2).

2. Part 97 is amended to read asfollows:

§§ 97.23, 97.25, 97.27, 97.29, 97.31, 97.33,97.35 [Amended]

By amending: § 97.23 VOR, VOR/DME, VOR or TACAN, and VOR/DMEor TACAN; § 97.25 LOC, LOC/DME,LDA, LDA/DME, SDF, SDF/DME;§ 97.27 NDB, NDB/DME; § 97.29 ILS,ILS/DME, ISMLS, MLS, MLS/DME,MLS/RNAV; § 97.31 RADAR SIAPs;§ 97.33 RNAV SIAPs; and § 97.35COPTER ISAPs, identified as follows:

...Effective January 30, 1997

Fayetteville, AR, Drake Field, LDA/DMERWY 34, Orig

Burlington, CO, Kit Carson County, LOCRWY 33, Orig

Suffolk, VA, Suffolk Muni, LOC RWY 4, OrigSuffolk, VA, Suffolk Muni, NDB RWY 4, Orig

...Effective February 27, 1997

Unalakleet, AK, Unalakleet, MLS RWY 14,Orig

Frankfort, IL, Frankfort, VOR or GPS RWY27, Amdt 4

Youngstown, OH, Youngstown Elser Metro,VOR or GPS–C, Amdt 1

Miller, SD, Miller Muni, NDB or GPS RWY13, Amdt 2, CANCELLED

Miller, SD, Miller Muni, NDB RWY 15, Orig

...Effective March 27, 1997

Port Heiden, AK, Port Heiden, VOR/DMERWY 13, Orig

St Mary’s, AK, St Mary’s, LOC/DME RWY 16,Amdt 2

St Mary’s, AK, St Mary’s, NDB RWY 16,Amdt 1

Benton, AR, Saline County, GPS RWY 17,Orig

Benton, AR, Saline County, GPS RWY 35,Orig

Hope, AR, Hope Muni, VOR/DME RWY 4,Amdt 7

Hope, AR, Hope Muni, NDB RWY 16, Amdt4

Hope, AR, Hope Muni, GPS RWY 4, OrigHope, AR, Hope Muni, GPS RWY 16, Orig

Grass Valley, CA, Nevada County Air Park,GPS RWY 7, Orig

Telluride, CO, Telluride Regional, GPS RWY9, Amdt 1

Oxford, CT, Waterbury-Oxford, NDB RWY36, Amdt 7

Oxford, CT, Waterbury-Oxford, GPS RWY 18,Orig

Oxford, CT, Waterbury-Oxford, GPS RWY 36,Orig

Brooksville, FL, Hernando County, NDBRWY 9, Amdt 5

Brooksville, FL, Hernando County, GPS RWY9, Orig

Brooksville, FL, Hernando County, GPS RWY20, Orig

Claxton GA, Claxton-Evans County, NDBRWY 9, Orig, CANCELLED

Claxton, GA, Claxton-Evans County, NDBRWY 9, Orig

Muscatine, IA, Muscatine Muni, GPS RWY23, Amdt 1

Frankfort, IN, Frankfort Muni, NDB or GPSRWY 9, Amdt 1

Frankfort, IN, Frankfort Muni, GPS RWY 27,Orig

Menominee, MI, Menominee-Marinette TwinCounty, GPS RWY 32, Orig

Ely, MN, Ely Muni, VOR/DME RWY 30,Amdt 4

ELY, MN, Ely Muni, VOR/DME RWY 12,Amdt 4

Ely, MN, Ely Muni, VOR or GPS RWY 30,Amdt 6

Ely, MN, Ely Muni, VOR or GPS RWY 12,Amdt 6

St Paul, MN, St Paul Downtown Holman Fld,GPS RWY 14, Orig

Sidney, MT, Sidney-Richland Muni, GPSRWY 1, Orig

Sidney, MT, Sidney-Richland Muni, GPSRWY 19, Orig

York, NE, York Muni, GPS RWY 17, OrigYork, NE, York Muni, GPS RWY 35, OrigWest Milford, NJ, Greenwood Lake, GPS

RWY 6, OrigColumbus, OH, Ohio State University,

LORAN RNAV RWY 9R, Orig,CANCELLED

Columbus, OH, Ohio State University,LORAN RNAV RWY 27L, Orig,CANCELLED

Columbus, OH, Ohio State University, GPSRWY 9R, Orig

Columbus, OH, Ohio State University, GPSRWY 27L, Orig

Newberry, SC, Newberry Muni, GPS RWY 22,Orig

Houston, TX, Houston Intercontinental, GPSRWY 14L, Orig

Marfa, TX, Marfa Muni, GPS RWY 30, OrigGalax/Hillsville, VA, Twin County, NDB OR

GPS–A, Amdt 6Galax/Hillsville, VA, Twin County, GPS

RWY 36, OrigLeesburg, VA Leesburg Muni/Godfrey Field,

VOR OR GPS–A, Amdt 1Leesburg, VA Leesburg Muni/Godfrey Field,

LOC RWY 17, Amdt 2Leesburg, VA Leesburg Muni/Godfrey Field,

GPS RWY 17, OrigOrange, VA, Orange County, GPS RWY 7,

OrigPortsmouth, VA, Hampton Roads, NDB OR

GPS RWY 2, Amdt 6Portsmouth, VA, Hampton Roads, GPS RWY

10, Orig


Portsmouth, VA, Hampton Roads, GPS RWY28, Orig

Richmond/Ashland, VA, Hanover CountyMuni, LOC RWY 16, Amdt 1

Staunton/Waynesboro/Harrisonburg, VA,Shenandoah Valley Regional, GPS RWY23, Orig

Charlotte Amalie, VI, Cyril E King, GPS RWY10, Orig

Phillips, WI, Price County, GPS RWY 1, OrigPhillips, WI, Price County, GPS RWY 19,

OrigNote: The FAA published two amendments

of the Federal Aviation Regulations (Vol 61,No. 248, page 67704, dated Tuesday,December 24, 1996) under Sections 97.29 and97.33 in Docket No. 28765, Amdt. No. 1770to Part 97, with an effective publication dateof January 30, 1997, which is herebyamended to read as follows:

Baltimore, MD, Baltimore-WashingtonIntl, ILS/DME RWY 15L, Amdt 4

Wilmington, DE, New Castle County,VOR/DME RNAV OR GPS RWY 9, Orig

[FR Doc. 97–1579 Filed 1–22–97; 8:45 am]BILLING CODE 4910–13–M

14 CFR Part 97




SUMMARY: This amendment establishes,amends, suspends, or revokes StandardInstrument Approach Procedures(SIAPs) for operations at certainairports. These regulatory actions areneeded because of changes occurring inthe National Airspace System, such asthe commissioning of new navigationalfacilities, addition of new obstacles, orchanges in air traffic requirements.These changes are designed to providesafe and efficient use of the navigableairspace and to promote safe flightoperations under instrument flight rulesat the affected airports.DATES: An effective date for each SIAPis specified in the amendatoryprovisions.

Incorporation by reference-approvedby the Director of the Federal Registeron December 31, 1980, and reapprovedas of January 1, 1982.ADDRESSES: Availability of matterincorporated by reference in theamendment is as follows:







2. The FAA Regional Office of theregion in which affected airport islocated.

By Subcription—Copies of all SIAPs,mailed once every 2 weeks, are for saleby the Superintendent of Documents,U.S. Government Printing Office,Washington, DC 20402.

FOR FURTHER INFORMATION CONTACT: PaulJ. Best, Flight Procedures StandardsBranch (AFS–420), Technical ProgramsDivision, Flight Standards Service,Federal Aviation Administration, 800Independence Avenue, SW.,Washington, DC 20591; telephone (202)267–8277.

SUPPLEMENTARY INFORMATION: Thisamendment to part 97 of the FederalAviation Regulations (14 CFR part 97)establishes, amends, suspends, orrevokes Standard Instrument ApproachProcedures (SIAPs). The completeregulatory description on each SIAP iscontained in the appropriate FAA Form8260 and the National Flight DataCenter (FDC)/Permanent (P) Notices toAirmen (NOTAM) which areincorporated by reference in theamendment under 5 U.S.C. 552(a), 1CFR part 51, and § 97.20 of the FederalAviations Regulations (FAR). Materialsincorporated by reference are availablefor examination or purchase as statedabove.

The large number of SIAPs, theircomplex nature, and the need for aspecial format make their verbatimpublication in the Federal Registerexpensive and impractical. Further,airmen do not use the regulatory text ofthe SIAPs, but refer to their graphicdepiction of charts printed bypublishers of aeronautical materials.Thus, the advantages of incorporationby reference are realized andpublication of the complete descriptionof each SIAP contained in FAA formdocuments is unnecessary. Theprovisions of this amendment state theaffected CFR (and FAR) sections, withthe types and effective dates of theSIAPs. This amendment also identifiesthe airport, its location, the procedureidentification and the amendmentnumber.

The Rule

This amendment to part 97 of theFederal Aviation Regulations (14 CFRpart 97) establishes, amends, suspends,or revokes SIAPs. For safety andtimeliness of change considerations, thisamendment incorporates only specificchanges contained in the content of thefollowing FDC/P NOTAM for eachSIAP. The SIAP information in somepreviously designated FDC/Temporary(FDC/T) NOTAMs is of such duration asto be permanent. With conversion toFDC/P NOTAMs, the respective FDC/TNOTAMs have been cancelled.

The FDC/P NOTAMs for the SIAPscontained in this amendment are basedon the criteria contained in the U.S.Standard for Terminal InstrumentApproach Procedures (TERPS). Indeveloping these chart changes to SIAPsby FDC/P NOTAMs, the TERPS criteriawere applied to only these specificconditions existing at the affectedairports. All SIAP amendments in thisrule have been previously issued by theFAA in a National Flight Data Center(FDC) Notice to Airmen (NOTAM) as anemergency action of immediate flightsafety relating directly to publishedaeronautical charts. The circumstanceswhich created the need for all theseSIAP amendments requires makingthem effective in less than 30 days.

Further, the SIAPs contained in thisamendment are based on the criteriacontained in the TERPS. Because of theclose and immediate relationshipbetween these SIAPs and safety in aircommerce, I find that notice and publicprocedure before adopting these SIAPsare impracticable and contrary to thepublic interest and, where applicable,that good cause exists for making theseSIAPs effective in less than 30 days.

Conclusion

The FAA has determined that thisregulation only involves an establishedbody of technical regulations for whichfrequent and routine amendments arenecessary to keep them operationallycurrent. It, therefore—(1) is not a‘‘significant regulatory action’’ underExecutive Order 12866; (2) is not a‘‘significant rule’’ under DOTRegulatory Policies and Procedures (44FR 11034; February 26, 1979); and (3)does not warrant preparation of aregulatory evaluation as the anticipatedimpact is so minimal. For the samereason, the FAA certifies that thisamendment will not have a significanteconomic impact on a substantialnumber of small entities under thecriteria of the Regulatory Flexibility Act.


List of Subjects in 14 CFR Part 97Air traffic control, Airports,

Navigation (air).Issued in Washington, DC, on January 10,

1997.Thomas C. Accardi,Director, Flight Standards Service.


authority delegated to me, part 97 of theFederal Aviation Regulations (14 CFRpart 97) is amended by establishing,amending, suspending, or revoking

Standard Instrument ApproachProcedures, effective at 0901 UTC onthe dates specified, as follows:

PART 97—STANDARD INSTRUMENTAPPROACH PROCEDURES


Authority: 49 U.S.C. 40103, 40113, 40120,44701; 49 U.S.C. 106(g); and 14 CFR11.49(b)(2).

2. Part 97 is amended as read asfollows:

§§ 97.23, 97.25, 97.29, 97.31, 97.33, 97.35[Amended]

By amending: § 97.23 VOR, VOR/DME, VOR or TACAN, and VOR/DMEor TACAN; § 97.25 LOC, LOC/DME,LDA, LDA/DME, SDF, SDF/DME;§ 97.27 NDB, NDB/DME; § 97.29 ILS,ILS/DME, ISMLS, MLS, MLS/DME,MLS/RNAV; § 97.31 RADAR SIAPs;§ 97.33 RNAV SIAPs; and § 97.35COPTER SIAPS, identified as follows:

* * * EFFECTIVE UPONPUBLICATION

FDC date State City Airport FDC No. SIAP

01/02/97 ...... MN Minneapolis ................... Minneapolis-St Paul Intl (Wold-Chamberlain).

FDC 7/0026 ILS RWY 22, AMDT 4...


FDC 7/0027 ILS RWY 11L, AMDT 3...


FDC 7/0028 ILS RWY 29R, AMDT 7...


FDC 7/0029 NDB or GPS RWY 29R, AMDT11...

01/03/97 ...... AL Auburn ........................... Auburn-Opelika Robert G. Pitts ........ FDC 7/0042 VOR or GPS RWY 28 AMDT9A...

01/03/97 ...... FL Gainesville ..................... Gainesville Regional ......................... FDC 7/0041 NDB RWY 28 AMDT 8...01/03/97 ...... FL Gainesville ..................... Gainesville Regional ......................... FDC 7/0044 LOC BC RWY 10 AMDT 7...01/03/97 ...... FL Gainesville ..................... Gainesville Regional ......................... FDC 7/0045 ILS RWY 28 AMDT 11...01/05/97 ...... IL Monline .......................... Quad City Airport .............................. FDC 7/0066 ILS RWY 27 ORIG–A...01/06/97 ...... AR Little Rock ..................... Adams Field ...................................... FDC 7/0101 ILS RWY 22L, AMDT 1B...01/06/97 ...... PA Perkasie ........................ Pennridge .......................................... FDC 7/0102 VOR or GPS RWY 8 AMDT 1...01/07/97 ...... OR Portland ......................... Portland Intl ....................................... FDC 7/0119 ILS RWY 10R AMDT 30B...01/07/97 ...... SD Rapid City ...................... Rapid City Regional .......................... FDC 7/0134 ILS RWY 32 AMDT 17...01/07/97 ...... SD Rapid City ...................... Rapid City Regional .......................... FDC 7/0135 NDB RWY 32 AMDT 3...01/07/97 ...... SD Rapid City ...................... Rapid City Regional .......................... FDC 7/0136 VOR or TACAN or GPS RWY 32

AMDT 24...10/03/96 ...... KS Manhattan ..................... Manhattan Muni ................................ FDC 6/7604 VOR or GPS RWY 3, AMDT

17...12/06/96 ...... OH Columbus ...................... Port Columbus Intl ............................ FDC 6/9115 NDB RWY 28R ORIG...2/20/96 ........ FL St Augustine .................. St Augustine ...................................... FDC 6/9433 VOR or GPS RWY 13 AMDT 5...


14 CFR Part 97




SUMMARY: This amendment establishes,amends, suspends, or revokes StandardInstrument Approach Procedures(SIAPs) for operations at certainairports. These regulatory actions areneeded because of the adoption of newor revised criteria, or because of changesoccurring in the National AirspaceSystem, such as the commissioning ofnew navigational facilities, addition ofnew obstacles, or changes in air trafficrequirements. These changes are

designed to provide safe and efficientuse of the navigable airspace and topromote safe flight operations underinstrument flight rules at the affectedairports.DATES: An effective date for each SIAPis specified in the amendatoryprovisions.

Incorporation by reference-approvedby the Director of the Federal Registeron December 31, 1980, and reapprovedas of January 1, 1982.ADDRESSES: Aviailability of mattersincorporated by reference in theamendment is as follows:







2. The FAA Regional Office of theregion in which the affected airport islocated.

By Subscription—Copies of all SIAPs,mailed once every 2 weeks, are for saleby the Superintendent of Documents,U.S. Government Printing Office,Washington, DC 20402.FOR FURTHER INFORMATION CONTACT: PaulJ. Best, Flight Procedures StandardsBranch (AFS–420), Technical ProgramsDivision, Flight Standards Service,Federal Aviation Administration, 800Independence Avenue, SW.,Washington, DC 20591; telephone (202)267–8277.SUPPLEMENTARY INFORMATION: Thisamendment to part 97 of the FederalAviation Regulations (14 CFR part 97)establishes, amends, suspends, or


revokes Standard Instrument ApproachProcedures (SIAPs). The completeregulatory description of each SIAP iscontained in official FAA formdocuments which are incorporated byreference in this amendment under 5U.S.C. 552(a), 1 CFR part 51, and § 97.20of the Federal Aviation Regulations(FAR). The applicable FAA Forms areidentified as FAA Form 8260–5.Materials incorporated by reference areavailable for examination or purchase asstated above.

The large number of SIAPs, theircomplex nature, and the need for aspecial format make their verbatimpublication in the Federal Registerexpensive and impractical. Further,airmen do not use the regulatory text ofthe SIAPs, but refer to their graphicdepiction on charts printed bypublishers of aeronautical materials.Thus, the advantages of incorporationby reference are realized andpublication of the complete descriptionof each SIAP contained in FAA formdocuments is unnecessary. Theprovisions of this amendment state theaffected CFR (and FAR) sections, withthe types and effective dates of theSIAPs. This amendment also identifiesthe airport, its location, the procedureidentification and the amendmentnumber.

This amendment to part 97 is effectiveupon publication of each separate SIAPas contained in the transmittal. TheSIAPs contained in this amendment arebased on the criteria contained in theUnited States Standard for TerminalInstrument Approach Procedures(TERPS). In developing these SIAPs, theTERPS criteria were applied to theconditions existing or anticipated at theaffected airports.

The FAA has determined throughtesting that current non-localizer type,non-precision instrument approachesdeveloped using the TERPS criteria canbe flown by aircraft equipped withGlobal Positioning System (GPS)equipment. In consideration of theabove, the applicable StandardInstrument Approach Procedures(SIAPs) will be altered to include ‘‘orGPS’’ in the title without otherwisereviewing or modifying the procedure.(Once a stand alone GPS procedure isdeveloped, the procedure title will bealtered to remove ‘‘or GPS’’ from thesenon-localizer, non-precision instrumentapproach procedure titles.) Because ofthe close and immediate relationshipbetween these SIAPs and safety in aircommerce, I find that notice and publicprocedure before adopting these SIAPsare, impracticable and contrary to thepublic interest and, where applicable,

that good cause exists for making someSIAPS effective in less than 30 days.

The FAA has determined that thisregulation only involves an establishedbody of technical regulations for whichfrequent and routine amendments arenecessary to keep them operationallycurrent. It, therefore—(1) is not a‘‘significant regulatory action’’ underExecutive Order 12866; (2) is not a‘‘significant rule’’ under DOTRegulatory Policies and Procedures (44FR 11034; February 26, 1979); and (3)does not warrant preparation of aregulatory evaluation as the anticipatedimpact is so minimal. For the samereason, the FAA certifies that thisamendment will not have a significanteconomic impact on a substantialnumber of small entities under thecriteria of the Regulatory Flexibility Act.

List of Subjects in 14 CFR Part 97Air traffic control, Airports,

Navigation (air).Issued in Washington, DC, on January 10,

1997.Thomas C. Accardi,Director, Flight Standards Service.


authority delegated to me, part 97 of theFederal Aviation Regulations (14 CFRpart 97) is amended by establishing,amending, suspending, or revokingStandard Instrument ApproachProcedures, effective at 0901 UTC onthe dates specified, as follows:

PART 97—STANDARD INSTRUMENTAPPROACH PROCEDURES


Authority: 49 U.S.C. 40103, 40113, 40120,44701; 49 U.S.C. 106(g); and 14 CFR11.49(b)(2).

2. Part 97 is amended to read asfollows:

§§ 97.23, 97.27, 97.33, 97.35 [Amended]By amending: § 97.23 VOR, VOR/

DME, VOR or TACAN, and VOR/DMEor TACAN; § 97.27 NDB, NDB/DME;§ 97.33 RNAV SIAPs; and § 97.35COPTER SIAPs; identified as follows:

* * * Effective January 30, 1997De Queen, AR, J. Lynn Helms Sevier County,

NDB or GPS RWY 8, Amdt 4ACANCELLED

De Queen, AR, J. Lynn Helms Sevier County,NDB RWY 8, Amdt 4A

Holdenville, OK, Holdenville Muni, NDB orGPS RWY 17, Amdt 3 CANCELLED

Holdenville, OK, Holdenville Muni, NDBRWY 17, Amdt 3

Houston, TX, Ellington Field, VOR orTACAN or GPS RWY 22, Amdt 2CANCELLED

Houston, TX, Ellington Field, VOR orTACAN RWY 22, Amdt 2


DEPARTMENT OF HOUSING ANDURBAN DEVELOPMENT

24 CFR Part 3282

[Docket No. FR–4192–N–01]

Manufactured Housing Constructionand Safety Standards: Notice ofInternal Guidance on Preemption

AGENCY: Office of the AssistantSecretary for Housing—Federal HousingCommissioner, HUD.ACTION: Notice of staff guidance.

SUMMARY: The Office of Consumer andRegulatory Affairs in HUD hasdeveloped guidelines to assist its staff inaddressing preemption issuesconcerning the National ManufacturedHousing Construction and SafetyStandards Act of 1974. Because of theinterest of outside persons in the subjectgenerally, HUD has decided to publishthese internal guidelines to assistregulated entities and consumers inunderstanding the guidelines underwhich HUD will be operating. Theseguidelines are not binding on eitherHUD or the public and are published forinformational purposes only.FOR FURTHER INFORMATION CONTACT:David R. Williamson, Director, Office ofConsumer and Regulatory Affairs,Department of Housing and UrbanDevelopment, Room 9156, 451 SeventhStreet, SW., Washington, DC 20410–0500; telephone (202) 708–6401, or one-mail through Internet [email protected]. Forhearing and speech-impaired persons,the telephone number may be accessedvia TTY (text telephone) by calling theFederal Information Relay Service at 1–800–877–8339. (Other than the ‘‘800’’number, these telephone numbers arenot toll-free.)SUPPLEMENTARY INFORMATION: The staffguidelines reproduced in this notice areinternal guidance to assist the HUDoffice administering the manufacturedhousing program in answering questionsfrom the public as to whether particularState or local laws or regulations arepreempted by the NationalManufactured Housing Constructionand Safety Standards Act of 1974 (42U.S.C. 5401–5426) (the Act). Theguidelines are based upon the Act andits implementing regulations in 24 CFRparts 3280, 3282, and 3800 and do notprovide new interpretations of the Act


or create new HUD policy. Theguidelines were developed to assistHUD staff in giving uniform and timelyresponses to the public, includingconsumers and affected industries, andState and local governments onpreemption issues.

HUD is publishing these guidelinesbecause of the interest in preemptionquestions that has been expressed bymembers of these groups. HUDwelcomes comments on theseguidelines. Anyone wishing to commenton these guidelines may do so bysubmitting written comments to theattention of the person listed in the ‘‘ForFurther Information Contact’’ section ofthis notice.

The internal guidelines that wereprepared are as follows:

Guidelines for Analyzing SituationsInvolving Preemption Under theManufactured Home Construction andSafety Standards Act

I. IntroductionThese guidelines have been prepared

to assist in answering questions fromthe public as to whether particular Stateor local laws or regulations arepreempted by the Act. These guidelinesare based upon the NationalManufactured Housing Constructionand Safety Standards Act and itsimplementing regulations and are notintended to add new interpretations tothe Act or to create new HUD policy.

II. Statutory And RegulatoryBackground

The Act establishes a national set ofconstruction standards formanufactured housing. To ensure thatState or local governments did not enactor allow to continue conflictingconstruction standards, Congressprovided that no State or localgovernment could establish a standarddealing with an aspect of performancethat is not identical to those standardsestablished under the Act (section604(d)). However, where there is noFederal standard, the States are free toact (section 623(a)).

HUD has interpreted these statutoryprovisions in its regulationsimplementing the Act (24 CFR 3282.11).In accordance with the Act, theregulation bars States from imposing amanufactured home standard regardingconstruction and safety that covers thesame aspects of performance governedby a Federal standard. More generally,States may not take any action thatcould interfere with the Federalsuperintendence of the industry asestablished by the Act (24 CFR 3282.11).

The Act does not impose a duty onHUD to make any determinations as to

the applicability of the preemptionprovision, to investigate preemptionissues, or to render advisory opinionsregarding preemption questions.Further, a State is not specificallyprohibited under section 610 of the Actfrom implementing a provision that ispreempted, nor is there any requirementunder the Act for the Secretary toenforce the preemption provision.Generally, enforcement of preemptionrequirements is left up to the Courts.Where an issue is unclear, it isappropriate for the Courts to decidewhether a State or local requirement ispreempted.

To the extent possible, HUD wishes tobe responsive to inquiries of consumers,the industry, and State or localgovernments on the applicability ofpreemption. These responses should beconsidered as an effort by HUD toadvise the public of its construction ofthe statute and the rules which itadministers, and to give its opinion asto the applicable law and the particularfacts.

III. Guidelines for Specific SituationsMost inquiries can be responded to

merely by discerning if there is aspecific Federal standard whichaddresses the same aspect ofperformance as the State standard. If so,the Federal law preempts the State law.In a significant number of cases,however, the determination is not asclear and requires either an engineeringor legal analysis, or both. There are fourgeneral areas of inquiry which arefrequently raised:

A. InstallationThere is no specific Federal standard

that deals with the installation ofmanufactured homes. As such,standards as to the installation ofmanufactured homes can be regulatedby local or State governments and arenot preempted under the Act.

It is possible, however, that a localinstallation rule may hinder theimplementation of Federal standards.For example, the implementation of alocal rule may conflict with arequirement of a Federal constructionstandard for plumbing or water hookup.In such cases, the local rule ispreempted.

B. ZoningNormally, zoning issues fall outside

the scope of the preemption provisionsof sections 604 of the Act. There may belimited instances, however, in whichthe Federal definition of ‘‘manufacturedhome’’ could fall within the broaddefinitions applied to prefabricated orfactory built homes under the local

zoning ordinance. Such homes aretreated differently depending on thebuilding code under which they areconstructed.

Generally, the enforcement of a localordinance regulating the location ofmanufactured homes has not beensubjected to the regulatory authority ofthe Act because such enforcement restson the locality’s right to determineproper land use. In addition, a localityis free to adopt and enforce ordinancesthat regulate the appearance anddimensions of homes so long as thecriteria established by such ordinancesdo not have the effect of excludingmanufactured homes based on theconstruction and safety standards towhich they were built. Such regulationof aesthetics protects property values,preserves the character and integrity ofcommunities and neighborhoods, andassures architectural compatibility.

If a locality, however, is attempting toregulate, and even exclude, certainmanufactured homes through zoningenforcement that is based solely on aconstruction and safety code differentfrom that prescribed by the Act, thelocality lacks such authority. Thus, alocality cannot accept structuresmeeting the Federal definition ofmanufactured homes which complywith different standards, such as thelocal or State Building Code, andexclude or restrict manufactured homesthat are aesthetically the same but onlymeet the Federal standards. Byexcluding or restricting onlymanufactured homes built to theFederal standards, and acceptingmanufactured homes built to othercodes, the locality is establishingstandards different than the Federalstandards.

A locality is not in conflict with thepreemptive provisions of the Act if,without regard to constructionstandards, it treats all structures thatmeet the Federal definition ofManufactured Homes the same underlocal zoning laws.

C. State EnforcementA number of questions have arisen as

to when a State’s enforcement ofmanufactured housing standards arepreempted by Federal law. HUD’sregulations at 24 CFR 3282.11 (c) and(d) set forth a clear standard as to theappropriateness of State enforcement ofits manufactured home standards. TheFederal regulations prohibit a State fromestablishing a code enforcement systemfor manufactured homes which isoutside, or goes beyond, thoseenforcement procedures specifically setforth in the Federal regulations. ‘‘Thetest of whether a State rule or action is


valid or must give way is whether theState rule can be enforced, or the actiontaken, without impairing the Federalsuperintendence of the manufacturedhome industry as established by theAct’’ (24 CFR 3282.11(d)). There areseveral specific situations:

1. A State, as a State AdministrativeAgency (SAA) under section 623 of theAct, can enforce the Federal standards.It may also enforce State standardswhich are identical to the Federalstandards. Such actions would not bepreempted. However, the State’s systemof enforcing these standards must beidentical to the enforcement proceduresin the Federal regulations. ‘‘No Statemay establish * * * procedures orrequirements * * * which * * *require remedial actions which are notrequired by the Act and the regulations’’(24 CFR 3282.11(c)).

2. A State may enforce its ownconsumer protection or warranty lawsas to defects in individual homes. Assuch, a State may require amanufacturer to correct non-compliances and defects in response toindividual consumer complaints. Suchacts would not be preempted by Federallaw (24 CFR 3282.11(d)).

3. Notwithstanding the above,however, there are limitations on aState’s actions to correct individualhomes. These are situations in whichState action would interfere withFederal superintendence of themanufactured home industry.

(a) Imminent safety hazards or seriousdefects. Where it appears that there is animminent safety hazard or a seriousdefect, the State is required to refer thematter to HUD for enforcement (24 CFR3282.405(b) and 3282.407(a)).

(b) Class of manufactured homes.Where it appears that the same defectexists in a class of manufactured homesand the State is not the State in whichthe homes were produced, then theState is required to refer the matter tothe SAA in the State in which thehomes were produced or to HUD (ifthere is no SAA in the State ofproduction) for enforcement. Further, ifa class of defective homes is producedin more than one state, HUD isresponsible for the enforcement actions.If the homes were all manufactured inthe State, the State may take actions,consistent with the Federal regulations,with regard to the noncompliance anddefects (24 CFR 3282.405(b) and3282.407(a)(3)).

(c) Prior HUD enforcement. WhereHUD has already taken action to have aclass of serious defects corrected, thenthe State is preempted from takingcorrective actions of its own pursuant tothe Act (24 CFR 3282.404(e)).

D. Utility Companies

There have been a few utilitycompanies which have attempted toimpose their own construction or safetystandards on manufactured homes as arequirement for connection to theirservices. The Act, by its express terms,prohibits only ‘‘State or politicalsubdivisions of a State’’ fromestablishing standards that conflict withthe Federal standards (section 604(d)).Accordingly, if the utility company isowned or controlled by a politicalsubdivision, its standards are preemptedby the Federal standards. If the utility isprivately owned, its standards wouldnot be preempted.

E. State Construction and SafetyStandards

1. Aspects of performance. Additionalquestions arise in situations in whichthe State or locality attempts to apply itsown building or safety code to themanufactured home. Under section 604of the Act, State law is preemptedwhenever there is a State performancestandard regarding construction andsafety that is not identical to anestablished Federal standard. On theother hand, section 623 of the Actprovides that Federal law does notpreempt State construction or safetystandards for which a Federal standardhad not been established. Thus, forthere to be Federal preemption, theremust be a specific aspect of a Federalperformance standard which duplicatesa local standard.

Federal preemption cannot be basedupon a general purpose of the Act, orthe need for national uniformity in themanufactured housing industry. Thecourts have applied this ‘‘aspect ofperformance’’ standard in analogoussituations by focusing not on thepurpose or scope of the Act, but, rather,on the specific requirements of anestablished Federal standard. If theFederal standard is encompassed orimpacted by the State requirement, theState law is preempted.

2. Superintendence. It is also possiblethat a State or local law may bepreempted even though the local ruledoes not meet the differing aspect ofperformance standard. As stated above,24 CFR 3282.11(d) sets forth anadditional standard of preemption. AState rule must give way if it impairs theFederal superintendence of themanufactured home industry asestablished by the Act.

Thus, for example, a localrequirement that all homes beconstructed on site, while not coveringany aspect of performance, would be sofundamentally in conflict with the

Federal standards as to impair theFederal superintendence of themanufactured home program. Such arequirement would be preempted underthe HUD regulations.

The scope of this regulatory provisionis limited by the language ‘‘asestablished by the Act’’. This languagelimits the Federal superintendence ofthe industry, since section 604(d) of theAct limits the preemption of standardsto only those issues dealing with thesame aspects of performance.

Authority: 42 U.S.C. 3535(d) and 5401 etseq.

Dated: January 14, 1997.Stephanie A. Smith,General Deputy, Assistant Secretary forHousing-Federal Housing Commissioner.[FR Doc. 97–1646 Filed 1–22–97; 8:45 am]BILLING CODE 4210–27–P

DEPARTMENT OF THE TREASURY

Internal Revenue Service

26 CFR Part 1

[TD 8710]

RIN 1545–A073

Revisions of the Section 338Consistency Rules With Respect toTarget Affiliates That Are ControlledForeign Corporations

AGENCY: Internal Revenue Service (IRS),Treasury.ACTION: Final regulations.

SUMMARY: This document contains finalregulations relating to the consistencyrules under section 338 of the InternalRevenue Code of 1986 that areapplicable to certain cases involvingcontrolled foreign corporations. Thefinal regulations substantially revise andsimplify the stock and asset consistencyrules. The final regulations include theprovisions of the consistency rulesapplicable to controlled foreigncorporations contained in recentproposed and temporary regulations.The final regulations would affecttaxpayers that own controlled foreigncorporations.EFFECTIVE DATE: These regulations areeffective January 20, 1997.FOR FURTHER INFORMATION CONTACT:Kenneth D. Allison at (202) 622–3860(not a toll-free number).


BackgroundThis document contains final Income

Tax Regulations (26 CFR part 1) undersection 338 of the Internal RevenueCode.


On January 20, 1994, temporaryregulations (TD 8516) were published inthe Federal Register (59 FR 2956) undersection 338 of the Internal RevenueCode. See 1994–1 C.B. 119. A notice ofproposed rulemaking (INTL–0177–90)cross-referencing the temporaryregulations was published in theFederal Register for the same day (59FR 3045). See 1994–1 C.B. 818. Thetemporary regulations provided rules toreplace the asset and stock consistencyrules of §§ 1.338–4T and 1.338–5T. Thetemporary regulations includedconsistency rules applicable to certaincases involving controlled foreigncorporations (CFCs).

No written comments responding tothe notice were received. No publichearing was requested or held. Theproposed regulations under section 338are adopted as revised by this Treasurydecision, and the correspondingtemporary regulations are removed.

Explanation of Provisions

The preamble to the temporary andproposed regulations (1994–1 C.B. 119)contains a discussion of the provisions.Changes to the temporary and proposedregulations are noted below.

Section 1.338–4T(h)(3) of thetemporary regulations is clarified bystating that the basis of the stock of acontrolled foreign corporate targetaffiliate is not increased by section 1248earnings attributable to the dispositionof an asset in which a carryover basis istaken under this section.

Section 1.338–4T(h)(4) of thetemporary regulations addresses asituation in which the income or gainfrom the disposition of a controlledforeign corporation target affiliate (CFCT affiliate) asset is not subject to theconsistency rules of paragraph (h)(2).The regulation states that if a CFC Taffiliate pays a dividend to a target (T)or a domestic T affiliate wholly orpartially out of the earnings generatedby the disposition of that asset, and thedividend increases the basis of the Tstock under § 1.1502–32, then the basisof the stock of the CFC T affiliate isreduced by the amount of the dividendthat was paid from the earnings andprofits resulting from the assetdisposition. This rule applies to anyactual dividend, amount treated as adividend under section 1248 (or thatwould have been so treated but forsection 1291) or amount included inincome under section 951(a)(1)(B).

The final regulations retain this rule.The final regulations also add a specialordering rule, in § 1.338–4(h)(4)(ii),clarifying that any such dividend is firstconsidered attributable to earnings and

profits resulting from the disposition ofthe asset.

Section 1.338–4(h)(4)(ii) is clarified tostate that the basis of the stock of acontrolled foreign corporation may notbe reduced below zero under thecarryover basis rules of § 1.338–4.

Section 1.338–4(h)(2)(iv)(A) and§ 1.338–4(h)(4)(iii)(A) are added toallow the purchasing group in certaininstances to increase the basis of theCFC T stock by the amount of either thebasis increase denied under § 1.338–4(h)(2)(ii) or the basis reductionrequired under § 1.338–4(h)(4)(ii). Therule applies when the purchasing groupdisposes of an asset acquired from CFCT that is subject to the consistency rulesto an unrelated party in a taxabletransaction and includes in U.S. grossincome the greater of (i) the income orgain equal to the basis amount deniedto the asset under either § 1.338–4(h)(2)(i) or § 1.338–4(g) and § 1.338–4(h)(4)(i), respectively, or (ii) the gainrecognized on the asset.

Similarly, § 1.338–4(h)(2)(iv)(B) and§ 1.338–4(h)(4)(iii)(B) are added to allowthe purchasing group to increase thebasis of an asset acquired from CFC Tthat is subject to the consistency rulesby the basis amount denied to the assetunder either § 1.338–4(h)(2)(i) or§ 1.338–4(g) and § 1.338–4(h)(4)(i). Therule applies when the purchasing groupdisposes of the stock of CFC T to anunrelated party in a taxable transactionand includes in U.S. gross income thegreater of (i) the gain equal to the basisincrease denied under § 1.338–4(h)(2)(ii)or the basis reduction required under§ 1.338–4(h)(4)(ii), respectively, or (ii)the gain recognized in the stock.

Special AnalysesIt has been determined that this final

regulation is not a significant regulatoryaction as defined in EO 12866.Therefore, a regulatory assessment is notrequired. It also has been determinedthat section 553(b) of the AdministrativeProcedure Act (5 U.S.C. chapter 5) doesnot apply to these regulations, andbecause the notice of proposedrulemaking preceding the regulationswas issued prior to March 29, 1996 theRegulatory Flexibility Act (5 U.S.C.chapter 6) does not apply. Therefore, aregulatory flexibility analysis is notrequired. Pursuant to section 7805(f) ofthe Internal Revenue Code, the notice ofproposed rulemaking preceding theseregulations was submitted to the SmallBusiness Administration for commenton its impact on small businesses.

Drafting Information: The principal authorof these regulations is Kenneth D. Allison ofthe Office of Associate Chief Counsel(International), IRS. However, other

personnel from the IRS and TreasuryDepartment participated in theirdevelopment.

List of Subjects in 26 CFR Part 1Income taxes, Reporting and

recordkeeping requirements.

Adoption of Amendments to theRegulations

Accordingly, 26 CFR part 1 isamended as follows:

PART 1—INCOME TAXES

Paragraph 1. The authority citationfor part 1 is amended by removing theentry for Section 1.338–4T(h) to read asfollows:

Authority: 26 U.S.C. 7805 * * *

Par. 2. In § 1.338–0, the outline oftopics is amended by revising the entryfor § 1.338–4(h) and removing the entryfor § 1.338–4T to read as follows:

§ 1.338–0 Outline of topics.* * * * *

§ 1.338–4 Asset and stock consistency.* * * * *

(h) Consistency for target affiliates that arecontrolled foreign corporations.

(1) In general.(2) Income or gain resulting from asset

dispositions.(i) General rule.(ii) Basis of controlled foreign corporation

stock.(iii) Operating rule.(iv) Increase in asset or stock basis.(3) Stock issued by target affiliate that is a

controlled foreign corporation.(4) Certain distributions.(i) General rule.(ii) Basis of controlled foreign corporation

stock.(iii) Increase in asset or stock basis.(5) Examples.

* * * * *Par. 3. Section 1.338–4 is amended as

follows:1. Paragraph (a)(5) is amended by

removing the language ‘‘Section 1.338–4T(h)’’ and adding ‘‘Paragraph (h) of thissection’’ in its place.

2. Paragraph (c)(4) is amended byremoving the language ‘‘§ 1.338–4T(h)(2)’’ and adding ‘‘paragraph (h)(2)of this section’’ in its place.

3. Paragraph (d)(2)(iii) is amended byremoving the language ‘‘§ 1.338–4T(h)(3)’’ and adding ‘‘paragraph (h)(3)of this section’’ in its place.

4. Paragraph (g)(2) is amended byremoving the language ‘‘§ 1.338–4T(h)(4)’’ and adding ‘‘paragraph (h)(4)of this section’’ in its place.

5. Paragraph (h) is revised.6. Paragraph (j)(3)(i)(A)(2) is amended

by removing the language ‘‘§ 1.338–4T(h)’’ and adding ‘‘paragraph (h) of thissection’’ in its place.


The revision reads as follows:

§ 1.338–4 Asset and stock consistency.* * * * *

(h) Consistency for target affiliatesthat are controlled foreigncorporations—(1) In general. Thisparagraph (h) applies only if target is adomestic corporation. For additionalrules that may apply with respect tocontrolled foreign corporations, seeparagraph (g) of this section. Thedefinitions and nomenclature of§ 1.338–1 (b) and (c) and paragraph (e)of this section apply for purposes of thissection.

(2) Income or gain resulting from assetdispositions—(i) General rule. Income orgain of a target affiliate that is acontrolled foreign corporation from thedisposition of an asset is not reflected inthe basis of target stock under paragraph(c) of this section unless the income orgain results in an inclusion undersection 951(a)(1)(A), 951(a)(1)(C), 1291or 1293.

(ii) Basis of controlled foreigncorporation stock. If, by reason ofparagraph (h)(2)(i) of this section, thecarryover basis rules of this sectionapply to an asset, no increase in basisin the stock of a controlled foreigncorporation under section 961(a) or1293(d)(1), or under regulations issuedpursuant to section 1297(b)(5), isallowed to target or a target affiliate tothe extent the increase is attributable toincome or gain described in paragraph(h)(2)(i) of this section. A similar ruleapplies to the basis of any property byreason of which the stock of thecontrolled foreign corporation isconsidered owned under section958(a)(2) or 1297(a).

(iii) Operating rule. For purposes ofthis paragraph (h)(2)—

(A) If there is an income inclusionunder section 951 (a)(1) (A) or (C), theshareholder’s income inclusion is firstattributed to the income or gain of thecontrolled foreign corporation from thedisposition of the asset to the extent ofthe shareholder’s pro rata share of suchincome or gain; and

(B) Any income or gain under section1293 is first attributed to the income orgain from the disposition of the asset tothe extent of the shareholder’s pro ratashare of the income or gain.

(iv) Increase in asset or stock basis—(A) If the carryover basis rules underparagraph (h)(2)(i) of this section applyto an asset, and the purchasingcorporation disposes of the asset to anunrelated party in a taxable transactionand recognizes and includes in its U.S.gross income or the U.S. gross incomeof its shareholders the greater of theincome or gain from the disposition of

the asset by the selling controlledforeign corporation that was reflected inthe basis of the target stock underparagraph (c) of this section, or the gainrecognized on the asset by thepurchasing corporation on thedisposition of the asset, then thepurchasing corporation or the target ora target affiliate, as appropriate, shallincrease the basis of the sellingcontrolled foreign corporation stocksubject to paragraph (h)(2)(ii) of thissection, as of the date of the dispositionof the asset by the purchasingcorporation, by the amount of the basisincrease that was denied underparagraph (h)(2)(ii) of this section. Thepreceding sentence shall apply only tothe extent that the controlled foreigncorporation stock is owned (within themeaning of section 958(a)) by a memberof the purchasing corporation’saffiliated group.

(B) If the carryover basis rules underparagraph (h)(2)(i) of this section applyto an asset, and the purchasingcorporation or the target or a targetaffiliate, as appropriate, disposes of thestock of the selling controlled foreigncorporation to an unrelated party in ataxable transaction and recognizes andincludes in its U.S. gross income or theU.S. gross income of its shareholders thegreater of the gain equal to the basisincrease that was denied underparagraph (h)(2)(ii) of this section, or thegain recognized in the stock by thepurchasing corporation or by the targetor a target affiliate, as appropriate, onthe disposition of the stock, then thepurchasing corporation shall increasethe basis of the asset, as of the date ofthe disposition of the stock of the sellingcontrolled foreign corporation by thepurchasing corporation or by the targetor a target affiliate, as appropriate, bythe amount of the basis increase thatwas denied pursuant to paragraph(h)(2)(i) of this section. The precedingsentence shall apply only to the extentthat the asset is owned (within themeaning of section 958(a)) by a memberof the purchasing corporation’saffiliated group.

(3) Stock issued by target affiliate thatis a controlled foreign corporation. Theexception to the carryover basis rules ofthis section provided in paragraph(d)(2)(iii) of this section does not applyto stock issued by a target affiliate thatis a controlled foreign corporation. Afterapplying the carryover basis rules of thissection to the stock, the basis in thestock is increased by the amount treatedas a dividend under section 1248 on thedisposition of the stock (or that wouldhave been so treated but for section1291), except to the extent the basisincrease is attributable to the

disposition of an asset in which acarryover basis is taken under thissection.

(4) Certain distributions—(i) Generalrule. In the case of a target affiliate thatis a controlled foreign corporation,paragraph (g) of this section applieswith respect to the target affiliate bytreating any reference to a dividend towhich section 243(a)(3) applies as areference to any amount taken intoaccount under § 1.1502–32 indetermining the basis of target stock thatis—

(A) A dividend;(B) An amount treated as a dividend

under section 1248 (or that would havebeen so treated but for section 1291); or

(C) An amount included in incomeunder section 951(a)(1)(B).

(ii) Basis of controlled foreigncorporation stock. If the carryover basisrules of this section apply to an asset,the basis in the stock of the controlledforeign corporation (or any property byreason of which the stock is consideredowned under section 958(a)(2)) isreduced (but not below zero) by the sumof any amounts that are treated, solelyby reason of the disposition of the asset,as a dividend, amount treated as adividend under section 1248 (or thatwould have been so treated but forsection 1291), or amount included inincome under section 951(a)(1)(B). Forthis purpose, any dividend, amounttreated as a dividend under section 1248(or that would have been so treated butfor section 1291), or amount included inincome under section 951(a)(1)(B) isconsidered attributable first to earningsand profits resulting from thedisposition of the asset.

(iii) Increase in asset or stock basis—(A) If the carryover basis rules underparagraphs (g) and (h)(4)(i) of thissection apply to an asset, and thepurchasing corporation disposes of theasset to an unrelated party in a taxabletransaction and recognizes and includesin its U.S. gross income or the U.S. grossincome of its shareholders the greater ofthe gain equal to the basis increasedenied in the asset pursuant toparagraphs (g) and (h)(4)(i) of thissection, or the gain recognized on theasset by the purchasing corporation onthe disposition of the asset, then thepurchasing corporation or the target ora target affiliate, as appropriate, shallincrease the basis of the sellingcontrolled foreign corporation stocksubject to paragraph (h)(4)(ii) of thissection, as of the date of the dispositionof the asset by the purchasingcorporation, by the amount of the basisreduction under paragraph (h)(4)(ii) ofthis section. The preceding sentenceshall apply only to the extent that the


controlled foreign corporation stock isowned (within the meaning of section958(a)) by a member of the purchasingcorporation’s affiliated group.

(B) If the carryover basis rules underparagraphs (g) and (h)(4)(i) of thissection apply to an asset, and thepurchasing corporation or the target ora target affiliate, as appropriate,disposes of the stock of the sellingcontrolled foreign corporation to anunrelated party in a taxable transactionand recognizes and includes in its U.S.gross income or the U.S. gross incomeof its shareholders the greater of theamount of the basis reduction underparagraph (h)(4)(ii) of this section, or thegain recognized in the stock by thepurchasing corporation or by the targetor a target affiliate, as appropriate, onthe disposition of the stock, then thepurchasing corporation shall increasethe basis of the asset, as of the date ofthe disposition of the stock of the sellingcontrolled foreign corporation by thepurchasing corporation or by the targetor a target affiliate, as appropriate, bythe amount of the basis increase thatwas denied pursuant to paragraphs (g)and (h)(4)(i) of this section. Thepreceding sentence shall apply only tothe extent that the asset is owned(within the meaning of section 958(a))by a member of the purchasingcorporation’s affiliated group.

(5) Examples. This paragraph (h) maybe illustrated by the followingexamples:

Example 1. Stock of target affiliate that isa CFC. (a) The S group files a consolidatedreturn; however, T2 is a controlled foreigncorporation. On December 1 of Year 1, T1sells the T2 stock to P and recognizes gain.On January 2 of Year 2, P makes a qualifiedstock purchase of T from S. No section 338election is made for T.

(b) Under paragraph (b)(1) of this section,paragraph (d) of this section applies to the T2stock. Under paragraph (h)(3) of this section,paragraph (d)(2)(iii) of this section does notapply to the T2 stock. Consequently,paragraph (d)(1) of this section applies to theT2 stock. However, after applying paragraph(d)(1) of this section, P’s basis in the T2 stockis increased by the amount of T1’s gain onthe sale of the T2 stock that is treated as adividend under section 1248. Because P hasa carryover basis in the T2 stock, the T2 stockis not considered purchased within themeaning of section 338(h)(3) and no section338 election may be made for T2.

Example 2. Stock of target affiliate CFC;inclusion under subpart F. (a) The S groupfiles a consolidated return; however, T2 is acontrolled foreign corporation. On December1 of Year 1, T2 sells an asset to P andrecognizes subpart F income that results inan inclusion in T1’s gross income undersection 951(a)(1)(A). On January 2 of Year 2,P makes a qualified stock purchase of T fromS. No section 338 election is made for T.

(b) Because gain from the disposition of theasset results in an inclusion under section951(a)(1)(A), the gain is reflected in the basisof the T stock as of T’s acquisition date. Seeparagraph (h)(2)(i) of this section.Consequently, under paragraph (b)(1) of thissection, paragraph (d)(1) of this sectionapplies to the asset. In addition, underparagraph (h)(2)(ii) of this section, T1’s basisin the T2 stock is not increased under section961(a) by the amount of the inclusion that isattributable to the sale of the asset.

(c) If, in addition to making a qualifiedstock purchase of T, P acquires the T2 stockfrom T1 on January 1 of Year 2, the resultsare the same for the asset sold by T2. Inaddition, under paragraph (h)(2)(ii) of thissection, T1’s basis in the T2 stock is notincreased by the amount of the inclusion thatis attributable to the gain on the sale of theasset. Further, under paragraph (h)(3) of thissection, paragraph (d)(1) of this sectionapplies to the T2 stock. However, afterapplying paragraph (d)(1) of this section, P’sbasis in the T2 stock is increased by theamount of T1’s gain on the sale of the T2stock that is treated as a dividend undersection 1248. Finally, because P has acarryover basis in the T2 stock, the T2 stockis not considered purchased within themeaning of section 338(h)(3) and no section338 election may be made for T2.

(d) If P makes a qualified stock purchaseof T2 from T1, rather than of T from S, andT1’s gain on the sale of T2 is treated as adividend under section 1248, underparagraph (h)(1) of this section, paragraphs(h)(2) and (3) of this section do not applybecause there is no target that is a domesticcorporation. Consequently, the carryoverbasis rules of paragraph do not apply to theasset sold by T2 or the T2 stock.

Example 3. Gain reflected by reason ofsection 1248 dividend; gain from non-subpartF asset. (a) The S group files a consolidatedreturn; however, T2 is a controlled foreigncorporation. In Years 1 through 4, T2 doesnot pay any dividends to T1 and no amountis included in T1’s income under section951(a)(1)(B). On December 1 of Year 4, T2sells an asset with a basis of $400,000 to Pfor $900,000. T2’s gain of $500,000 is notsubpart F income. On December 15 of Year4, T1 sells T2, in which it has a basis of$600,000, to P for $1,600,000. Under section1248, $800,000 of T1’s gain of $1,000,000 istreated as a dividend. However, in theabsence of the sale of the asset by T2 to P,only $300,000 would have been treated as adividend under section 1248. On December30 of Year 4, P makes a qualified stockpurchase of T1 from T. No section 338election is made for T1.

(b) Under paragraph (h)(4) of this section,paragraph (g)(2) of this section applies byreference to the amount treated as a dividendunder section 1248 on the disposition of theT2 stock. Because the amount treated as adividend is taken into account indetermining T’s basis in the T1 stock under§ 1.1502–32, the sale of the T2 stock and thedeemed dividend have the effect of atransaction described in paragraph (g)(1) ofthis section. Consequently, paragraph (d)(1)of this section applies to the asset sold by T2to P and P’s basis in the asset is $400,000 asof December 1 of Year 4.

(c) Under paragraph (h)(3) of this section,paragraph (d)(1) of this section applies to theT2 stock and P’s basis in the T2 stock is$600,000 as of December 15 of Year 4. Underparagraphs (h)(3) and (4)(ii) of this section,however, P’s basis in the T2 stock isincreased by $300,000 (the amount of T1’sgain treated as a dividend under section 1248($800,000), other than the amount treated asa dividend solely as a result of the sale of theasset by T2 to P ($500,000)) to $900,000.* * * * *

§ 1.338–4T [Removed]Par. 4. Section 1.338–4T is removed.Par. 5. In § 1.338(i)–1, paragraphs (a)

and (b) are revised to read as follows:

§ 1.338(i)–1 Effective dates.(a) In general. Sections 1.338–1 through

1.338–5 (except § 1.338–4(h)), 1.338(b)–1,and 1.338(h)(10)–1 generally are applicablefor targets with acquisition dates on or afterJanuary 20, 1994. Section 1.338–4(h) isapplicable for targets with acquisition dateson or after January 20, 1997. Section 1.338–4T(h) (as contained in 26 CFR part 1 asrevised April 1, 1996) is generally applicablefor targets with acquisition dates on or afterJanuary 20, 1994, and before January 20,1997.

(b) Elective retroactive application. A targetwith an acquisition date on or after January14, 1992 and before January 20, 1994 mayapply §§ 1.338–1 through 1.338–5, 1.338–4T(h) (as contained in 26 CFR part 1 asrevised April 1, 1996), 1.338(b)–1, and1.338(h)(10)–1 by including a statement withits return (including a timely filed amendedreturn) for the period that includes theacquisition date to the effect that it isapplying all of these sections pursuant to thisparagraph (b). A target with an acquisitiondate on or after January 14, 1992, and beforeJanuary 20, 1997, may choose to apply§ 1.338–4(h) for the period that includes theacquisition date pursuant to paragraph (b) ofthis section.* * * * *Margaret Milner Richardson,Commissioner of Internal Revenue.

Approved: January 13, 1997.Donald C. Lubick,Acting Assistant Secretary of the Treasury.[FR Doc. 97–1521 Filed 1–22–97; 8:45 am]BILLING CODE 4830–01–U


Coast Guard

33 CFR Part 117

[CGD7–96–069]

RIN 2115–AE47

Drawbridge Operation Regulations; St.Johns River, FL

AGENCY: Coast Guard, DOT.ACTION: Notice of temporary deviationfrom regulations.


SUMMARY: The Coast Guard is herebyproviding notice that the FloridaDepartment of Transportation (FDOT)has been granted permission totemporarily deviate from the regulationsgoverning the operation of the FullerWarren Drawbridge, mile 25.4, HighwayI10/I95 over the St. Johns River, locatedin the City of Jacksonville from FridayNovember 8, 1996, through Friday,February 7, 1997, for the purpose ofevaluating the reasonableness ofpossible changes to the permanentregulations. This deviation authorizesthe draws of the Fuller Warren Bridgeto remain closed for longer periodsduring the morning and afternoonweekday highway commuter periods. Inaddition, the Fuller Warren Bridge isallowed to open only once per hourfrom 9 a.m. to 4 p.m. on weekdaysexcept Federal holidays. This test willhelp determine whether the revisedopening schedule will improve the flowof highway traffic without unreasonablyimpacting navigation.DATES: The deviation is effective fromNovember 8, 1996 through February 7,1997. Comments must be received on orbefore February 7, 1997.ADDRESSES: Comments may be mailed toCommander (oan), Seventh Coast GuardDistrict, 909 SE 1st Avenue, Miami,Florida 33131–3050. The comments andother materials referenced in this noticewill be available for inspection andcopying at the above address. Normaloffice hours are between 9 a.m. and 4p.m., Monday through Friday, exceptFederal holidays. Comments may alsobe hand-delivered to the above address.FOR FURTHER INFORMATION CONTACT: Mr.Gary D. Pruitt, Project Officer, SeventhCoast Guard District, Aids toNavigation, at (305) 536–7331.


Request for CommentsThe Coast Guard encourages

interested persons to participate in thisevaluation of possible changes to theregulations governing the Fuller WarrenDrawbridge operated by the State ofFlorida by submitting written data, viewor arguments to the address above.Persons submitting comments shouldinclude their names and addresses,identify this notice [CGD7–96–069] andgive the specific provision to whicheach comment applies, and give thereason for each comment. Personswanting acknowledgment of receipt ofcomments should enclose a stamped,self-addressed postcard or envelope.

The Coast Guard will consider allcomments received during the commentperiod and determine whether toinitiate a rulemaking to propose a

permanent change to the drawbridgeoperating schedule. Persons may submitcomments by writing to the CommanderSeventh Coast Guard District listedunder ADDRESSES.

Background and Purpose

The Fuller Warren Drawbridge, mile25.4, Highway I10/I95 over the St. JohnsRiver, located in the City ofJacksonville, Florida has a verticalclearance, in the closed position, of 44feet above mean high water and 45 feetabove mean low water (MLW). OnNovember 6, 1996 FDOT requested adeviation from the current operatingschedule in 33 CFR 117.325 in order toreduce the number of drawbridgeopenings that would impact the heavyvolumes of highway traffic beingexperienced on I95. The traffic volumehas doubled on this interstate highwaysystem since 1991, reducing the Level ofService (LOS) to LOS E duringweekdays. This temporary deviation tothe operating regulations for the FullerWarren Drawbridge, owned andoperated by the FDOT, increases themorning and afternoon closed periodsand authorizes hourly openings from 9a.m. to 4 p.m. on weekdays. Thisdeviation is intended to reduce highwaydelays. However, due to strong rivercurrents and difficult maneuveringcharacteristics, tugs with tows areexempted from these restrictions. Othervessels using this reach of the St. JohnsRiver have adequate maneuvering roomto wait the hourly openings and shouldnot be unreasonably impacted by thisdeviation.

The Coast Guard has granted theFlorida Department of Transportation atemporary deviation from the operatingregulations outlined in Title 33, Code ofFederal Regulations, § 117.325governing the Fuller Warren Drawbridgelocated across the St. Johns River. Thisdeviation from normal operatingregulations is authorized in accordancewith the provisions of Title 33, Code ofFederal Regulations, § 117.43 for thepurpose of evaluating a possible changeto the permanent regulations. Under thisdeviation, the Fuller Warren Drawbridgeoperated by the FDOT shall open onsignal; except that, Monday throughFriday except Federal holidays from 7a.m. to 6 p.m. the draw need not openexcept on the hour. However, the drawneed not open between 7 a.m. and 9a.m. and between 4 p.m. and 6 p.m.Monday through Friday except Federalholidays. Tugs with tows shall bepassed at any time except during theauthorized weekday closures from 7a.m. to 9 a.m. and from 4 p.m. to 6 p.m.The bridge shall open at any time for

vessels in a situation where a delaywould endanger life or property.

This period of deviation is effectivefrom November 8, 1996 throughFebruary 7, 1997.

Dated: December 27, 1996.R.C. Olsen, Jr.,Captain, U.S. Coast Guard, ActingCommander, Seventh Coast Guard District.[FR Doc. 97–1576 Filed 1–22–97; 8:45 am]BILLING CODE 4910–14–M

33 CFR Part 117

[CGD07–96–054]

RIN 2115–AE47

Drawbridge Operation Regulations;Atlantic Intracoastal Waterway, FL

AGENCY: Coast Guard, DOT.ACTION: Final rule.

SUMMARY: The Coast Guard is removingthe regulation governing the operationof the Coronado Beach bridge, mile 845at New Smyrna Beach. This drawbridgehas been replaced by a higherdrawbridge and there is no longer aneed for the regulation. Therefore, theCoast Guard is removing 33 CFR117.261(h).DATES: January 23, 1997.FOR FURTHER INFORMATION CONTACT:Mr. Walt Paskowsky, Project Officer,Seventh Coast Guard District, BridgeSection, at (305) 536–4103.


Regulatory History

The Coast Guard finds that inaccordance with 5 U.S.C. 553, goodcause exists for proceeding directly tofinal rule and making this rule effectivein less than 30 days. This final ruleremoves a bridge regulation for adrawbridge that has been replaced.Therefore, publishing a notice ofproposed rulemaking or delaying theeffective date of the final rule isunnecessary and the Coast Guard isproceeding to final rule, effective uponpublication in the Federal Register.


The bridge regulation for the oldCoronado Beach drawbridge, locallyknown as the north bridge, waspublished in the Federal Register onDecember 14, 1987 [52 FR 47391]. Thisregulation established draw times on theopening of the old Coronado Beachdrawbridge. This drawbridge wasreplaced by a new higher basculedrawbridge which opened to auto trafficon August 26, 1996. Therefore, theregulations governing the operation of


the old drawbridge are no longernecessary and the Coast Guard isremoving 33 CFR 117.261(h).

Regulatory EvaluationThis rule is not a significant

regulatory action under section 3(f) ofExecutive Order 12866 and does notrequire an assessment of potential costsand benefits under section 6(a)(3) of thatorder. It has not been reviewed by theOffice of Management and Budget underthat order. It is not significant under theregulatory policies and procedures ofthe Department of Transportation (DOT)(44 FR 11040; February 26, 1979). TheCoast Guard expects the economicimpact of this rule to be so minimal thata full regulatory evaluation underparagraph 10e of the regulatory policyand procedures of DOT is unnecessary.We conclude this because thedrawbridge has been replaced with anew bridge.

Small EntitiesUnder the Regulatory Flexibility Act

(5 U.S.C. 601 et seq.), the Coast Guardmust consider whether this rule willhave a significant economic impact ona substantial number of small entities.Small entities may include smallbusinesses and not for profitorganizations that are independentlyowned and operated and are notdominant in their field andgovernmental jurisdictions withpopulations of less than 50,000. TheCoast Guard certifies under 5 U.S.C.605(b) that this final rule will not havea significant economic impact on asubstantial number of small entities,because the drawbridge has beenreplaced with a new bridge and is nolonger necessary.

Collection of InformationThis rule contains no collection-of-

information requirement under thePaperwork Reduction Act (44 U.S.C.3501 et seq.).

FederalismThe Coast Guard has analyzed this

rule under the principles and criteriacontained in Executive Order 12612 andhas determined that this rule does nothave sufficient federalism implicationsto warrant the preparation of aFederalism Assessment.

EnvironmentThe Coast Guard has considered the

environmental impact of this rule andhas determined pursuant to section2.B.2. of Commandant InstructionM16475.1b (as revised by 59 FR 38654,July 29, 1994), that this rule iscategorically excluded from further

environmental documentation. Pursuantthis instruction, specifically section2.B.2e.(32)(e), a Categorical Exclusionchecklist and determination has beenprepared and are available forinspection and copying.

List of Subjects in 33 CFR Part 117Bridges.

Final RegulationsFor the reasons set out in the

preamble, the Coast Guard amends Part117 of Title 33, Code of FederalRegulations, as follows:

PART 117—[AMENDED]

1. The authority citation for Part 117continues to read as follows:

Authority: 33 U.S.C. 499; 49 CFR 1.46; 33CFR 1.05–1(g); section 117.255 also issuedunder the authority of Pub. L. 102–587, 106stat. 5039.

§ 117.261 [Amended]2. Section 117.261(h) is removed and

reserved.Dated: December 19, 1996.

J.W. Lockwood,Rear Admiral, U.S. Coast Guard, Commander,Seventh Coast Guard District.[FR Doc. 97–1575 Filed 1–22–97; 8:45 am]BILLING CODE 4910–14–M

Coast Guard

33 CFR Part 157

[CGD 91–045]

RIN 2115–AE01

Operational Measures To Reduce OilSpills From Existing Tank VesselsWithout Double Hulls

AGENCY: Coast Guard, DOT.ACTION: Final rule; extension ofcomment period.

SUMMARY: The Coast Guard is extendingthe comment period on the under-keelclearance provisions contained in theoperational measures final rulemakingto allow an additional 30 days for publiccomment.DATES: Comments must be received onor before February 26, 1997.ADDRESSES: Comments may be mailed tothe Executive Secretary, Marine SafetyCouncil (G–LRA/3406) [CGD 91–045],U.S. Coast Guard Headquarters, 2100Second Street SW., Washington, DC20593–0001, or may be delivered toroom 3406 at the same address between9:30 a.m. and 2:00 p.m.; Mondaythrough Friday, except Federal holidays.The telephone number is (202) 267–1477.

The Executive Secretary maintains thepublic docket for this rulemaking.Comments will become part of thisdocket and will be available forinspection or copying at room 3406,U.S. Coast Guard Headquarters, between9:30 a.m. and 2:00 p.m., Mondaythrough Friday, except Federal holidays.FOR FURTHER INFORMATION CONTACT:LCDR Suzanne Englebert, ProjectManager, Project Development Division,at (202) 267–1492.



On November 27, 1996, the CoastGuard published a partial suspension ofregulation with request for comments(61 FR 60189) delaying implementationof certain under-keel clearancerequirements and opening a 60 daycomment period limited to theprovisions of 33 CFR 157.455(a). Sincepublication of the partial suspensionnotice, the Coast Guard received arequest from a regulated entity foradditional information on the under-keel clearance provisions. Theinformation requested has been addedto the docket. In light of this addition,the Coast Guard is extending thecomment period to allow an additional30 days to comment on the under-keelclearance provisions.

Dated: January 17, 1997.G.F. Wright,Acting Director of Standards, Marine Safetyand Environmental Protection.[FR Doc. 97–1637 Filed 1–22–97; 8:45 am]BILLING CODE 4910–14–M

ENVIRONMENTAL PROTECTIONAGENCY

40 CFR Part 76

[FRL–5678–1]

RIN 2060–AF48

Acid Rain Program; Nitrogen OxidesEmissions Reduction Program

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

SUMMARY: On December 19, 1996, theEnvironmental Protection Agency (EPA)promulgated emission limitations forthe second phase of the Nitrogen OxidesReduction Program under Title IV of theClean Air Act. These emissionlimitations will reduce the seriousadverse effects of NOX emissions onhuman health, visibility, ecosystems,and materials. This action corrects theeffective date and other inadvertent


typographical and administrative errorsin the December 19, 1996 final rule. Theeffective date of the December 19, 1996rule is corrected from December 19,1996 to February 17, 1997.EFFECTIVE DATE: The effective date of theDecember 19, 1996 rule (61 FR 6711) iscorrected from December 19, 1996 toFebruary 17, 1997. The remainingcorrections in this action are effectiveFebruary 17, 1997.FOR FURTHER INFORMATION CONTACT:Peter Tsirigotis, Source AssessmentBranch, Acid Rain Division (6204J), U.S.Environmental Protection Agency, 401M Street S.W., Washington, DC 20460(for technical matters) (202–233–9620);or Dwight C. Alpern (same address) (forlegal matters) (202–233–9151).SUPPLEMENTARY INFORMATION: OnDecember 19, 1996 (61 FR 6711), EPApromulgated emission limitations forthe second phase of the Nitrogen OxidesReduction Program under Title IV of theClean Air Act. Subsequent topublication of the December 19, 1996rule, EPA identified several inadvertenttypographical and administrative errorsin the December 19, 1996 document.Today’s action corrects those errors.

The December 19, 1996 documentincorrectly stated that the effective dateof the rule would be the date ofpublication. As stated elsewhere in thepreamble of December 19, 1996 rule,EPA submitted the rule to the U.S.Senate, the U.S. House ofRepresentatives, and the Comptroller ofthe General Accounting Office under 5U.S.C. 801(a)(1)(A), as added by theSmall Business Regulatory EnforcementFairness Act of 1996 (SBREFA). Theeffective date is being revised toFebruary 17, 1997, which is 60 daysafter the December 19, 1996 publicationdate, as required by SBREFA.

The several other corrections made bytoday’s action involve correcting theamendatory instructions in theDecember 19, 1996 rule. For example,the amendatory instruction addingdefined terms to the definitions section(§ 76.2) included terms for which nodefinitions were actually provided orintended to be provided. The incorrectlylisted terms are removed from theamendatory instructions.

The remaining corrections involvetypographical or similar errors in therule language itself. For example, therule provisions establishing cutoffs forapplication of the emission limitationsfor cyclone and wet bottom boilersexpressed the cutoffs in terms ofMaximum Continuous Steam Flow at100% of Load in lb/hr but the term,‘‘Maximum Continuous Steam Flow at100% Load’’, is defined as being

expressed in thousands of lb/hr. Therule provisions are corrected to expressthe cutoffs in thousands of lb/hr.

Under Executive Order 12866 (58 FR51735 (October 4, 1993)), this action isnot a ‘‘significant regulatory action’’ andis therefore not subject to review by theOffice of Management and Budget. Inaddition, this action does not imposeannual costs of $100 million or more,will not significantly or uniquely affectsmall governments, and is not asignificant federal intergovernmentalmandate. With regard to this action, theAgency thus has no obligations undersections 202, 203, 204, and 205 of theUnfunded Mandates Reform Act of 1995(P.L. 104–4). Moreover, since this actionis not subject to notice-and-commentrequirements under the AdministrativeProcedure Act or any other statute, theaction is not subject to the provisions ofthe Regulatory Flexibility Act (5 U.S.C.601, et seq.).

Under 5 U.S.C. 801(a)(1)(A) as addedby SBREFA, EPA submitted a reportcontaining this document and any otherrequired information to the U.S. Senate,the U.S. House of Representatives, andthe Comptroller General of the GeneralAccounting Office prior to publicationof this document in today’s FederalRegister. This action is not a ‘‘majorrule’’ as defined by 5 U.S.C. 804(2).

Dated: January 13, 1997.Mary D. Nichols,Assistant Administrator for Air andRadiation.

Accordingly, for the reasons set outabove, the publication on December 19,1996 of the final rule at 61 FR 67112 iscorrected as follows:

1. On page 67112, in the first column,the EFFECTIVE DATE is corrected to read‘‘February 17, 1997’’.

2. On page 67162, in the first andsecond columns, the amendatoryinstruction 2 is corrected to read‘‘Section 76.2 is amended by revisingthe definitions of ‘coal-fired utility unit’and ‘wet bottom’ and adding, inalphabetical order, definitions for ‘arch-fired boiler’, ‘combustion controls’,‘Maximum Continuous Steam Flow at100% of Load’, ‘non-plug-in combustioncontrols’, ‘plug-in combustion controls’,and ‘vertically fired boiler’, to read asfollows:’’.

§ 76.5 [Corrected]3. On page 67162, in the third

column, the amendatory instruction 3 iscorrected to read ‘‘Section 76.5 isamended by removing paragraph (g).’’.

§ 76.6 [Corrected]4. On page 67163, in the first column,

§ 76.6(a)(2), line 5 is corrected to read

‘‘1060, in thousands of lb/hr. The NOX

emission control’’.5. On page 67163, in the first column,

§ 76.6(a)(3), line 5 is corrected to read‘‘than 450, in thousands of lb/hr. TheNOX emission’’.

6. On page 67163, in the first column,§ 76.6(b), line 5 is corrected to end withthe words ‘‘part 75 of this chapter.’’. Theremainder of the line becomes the firstline of the amendatory instruction 5.

§ 76.16 [Corrected]

7. On page 67163, in the thirdcolumn, § 76.16(c)(1), line 2 is correctedto read ‘‘draft decision on:’’.

Appendix B to Part 76 [Corrected]

8. On page 67164, in the thirdcolumn, the amendatory instruction 9,line 9 is corrected to read ‘‘effectivenessin each place that the words appear andadding, in their’’ and the amendatoryinstruction 9, line 20 is corrected to read‘‘the heading of section 2 and the’’.

[FR Doc. 97–1641 Filed 1–22–97; 8:45 am]BILLING CODE 6560–50–P

NATIONAL AERONAUTICS ANDSPACE ADMINISTRATION

48 CFR Parts 1815, 1816, 1852, and1870

Rewrite of the NASA FAR Supplement(NFS)

AGENCY: Office of Procurement, NationalAeronautics and Space Administration(NASA).ACTION: Final rule.

SUMMARY: As part of the NationalPerformance Review initiative tostreamline and clarify regulations,NASA issued an interim rule (61 FR52325–52347, October 7, 1996) ascorrected (61 FR 56271, October 31,1996) which revised part 1815,Contracting by Negotiation, and part1816, Types of Contracts; madeconforming changes to part 1852,Solicitation Provisions and ContractClauses; and removed subpart 1870.3,NASA Source Evaluation. The interimrule is being adopted as a final rule withminor editorial revisions.EFFECTIVE DATE: January 23, 1997.FOR FURTHER INFORMATION CONTACT:Tom O’Toole, (202) 358–0478.


Background

No comments were received by theclosing date in response to the interimrule. Several comments were receivedafter the closing date, primarily


addressing the changes in NASA’ssource selection process. Specifically,the comments requested NASA:Eliminate the competitive rangenumerical goal of three proposals(1815.609(a)); clarify that therestrictions of the Procurement IntegrityAct apply before a blackout notice isissued (1815.408–70); clarify that theevaluation of relevant experience andpast performance for new businessesmay include an evaluation of thecompany’s principals (1815.605–70(d));clarify the definition of proposalweakness (1815.610(c)(2)(A)); andeliminate the requirement that sourceselection statements be publiclyreleasable (1815.611(d)(iii)). NASAconsidered these comments andbelieves the sections in question areboth adequately stated and integral tothe Agency’s acquisition streamlininginitiatives. Accordingly, no changes aremade to the interim rule as a result ofpublic comment.

However, the following editorial andadministrative changes are made toensure consistency among the rewrittenand renumbered NFS parts:

1. In 1815.407–70(a), the reference to‘‘issued pursuant to subpart 1870.1’’ isdeleted.

2. In 1815.602(b) (ii) and (iii), theparenthetical cross references arecorrected.

3. In 1815.708–70, the title is changedto ‘‘NASA contract clauses’’.

4. In 1815.902(a)(2)(G), the redundantlanguage after ‘‘unsuitable’’ is deleted.

5. In 1816.404–270(b)(3), the referenceto ‘‘CPAF’’ is a typographical error andis corrected to ‘‘cost-plus-fixed-fee(CPFF).’’

6. In 1852.216–76, the NFS referencein the footnote is corrected to‘‘1816.404–272(a).’’

7. In 1852.216–77(c)(4), the phrase‘‘cumulative provisional fee payments’’in the second sentence is corrected to‘‘cumulative interim (and provisional, ifapplicable) fee payments’’ to reflect thepolicy in 1816.404–2.

8. In 1852.216–88, footnote (5) isdeleted and corrected to ‘‘(5) Insert theappropriate amount in accordance with1816.402–270(e).’’

In addition, other miscellaneousrevisions are made to correct printingerrors in the published interim rule.

The National Performance Reviewurged agencies to streamline and clarifytheir regulations. The NFS rewriteinitiative was established to pursuethese goals by conducting a section bysection review of the NFS to verify itsaccuracy, relevancy, and validity. TheNFS will be rewritten in blocks of partsand upon completion of all parts, theNFS will be reissued in a new edition.

ImpactNASA certifies that this regulation

will not have a significant economicimpact on a substantial number of smallentities under the Regulatory FlexibilityAct (5 U.S.C. 601 et seq.). This rule doesnot impose any reporting or recordkeeping requirements subject to thePaperwork Reduction Act.

List of Subjects in 48 CFR Parts 1815,1816, 1852 and 1870

Government procurement.Thomas S. Luedtke,Deputy Associate Administrator forProcurement.

Accordingly, 48 CFR Parts 1815, 1816,1852, and 1870 are amended as follows:

1.–2. Part 1815 is revised to read asfollows:

PART 1815—CONTRACTING BYNEGOTIATION

Subpart 1815.4—Solicitation and Receipt ofProposals and Quotations

Sec.1815.405 Solicitations for information or

planning purposes.1815.405–70 Draft requests for proposals.1815.406 Preparing requests for proposals

(RFPs) and requests for quotations(RFQs).

1815.406–2 Part I—The Schedule.1815.406–5 Part IV—Representations and

instructions.1815.406–70 Page limitations.1815.406–71 Installation reviews.1815.406–72 Headquarters reviews.1815.407 Solicitation provisions.1815.407–70 NASA solicitation provisions.1815.408 Issuing solicitations.1815.408–70 Blackout notices.1815.412 Late proposals, modifications, and

withdrawals of proposals.1815.412–70 Broad agency announcements

(BAAs), Small Business InnovativeResearch (SBIR), and Small BusinessTechnology Transfer (STTR)solicitations.

1815.413 Disclosure and use of informationbefore award.

1815.413–2 Alternate II.1815.413–270 Appointing non-Government

evaluators as special Governmentemployees.

Subpart 1815.5—Unsolicited Proposals

1815.502 Policy.1815.503 General.1815.504 Advance guidance.1815.506 Agency procedures.1815.506–70 Relationship of unsolicited

proposals to NRAs.1815.508 Prohibitions.1815.508–70 NASA prohibitions.1815.509 Limited use of data.1815.509–70 Limited use of proposals.1815.570 Foreign proposals.

Subpart 1815.6—Source Selection

1815.601 Definitions.1815.602 Applicability.

1815.605–70 Evaluation factors andsubfactors.

1815.608 Proposal evaluation.1815.608–70 Identification of unacceptable

proposals.1815.608–71 Evaluation of a single

proposal.1815.609 Competitive range.1815.610 Written or oral discussions.1815.611 Best and Final Offers.1815.612–70 NASA formal source selection.

Subpart 1815.7—Make-or-Buy Programs

1815.704 Items and work included.1815.706 Evaluation, negotiation, and

agreement.1815.708 Contract clause.1815.708–70 NASA contract clause.

Subpart 1815.8—Price Negotiation

1815.804 Cost or pricing data andinformation other than cost or pricingdata.

1815.804–1 Prohibition on obtaining cost orpricing data.

1815.804–170 Acquisitions with theCanadian Commercial Corporation(CCC).

1815.804–2 Requiring cost or pricing data.1815.805–5 Field pricing support.1815.807 Pre-negotiation objectives.1815.807–70 Content of the pre-negotiation

position memorandum.1815.807–71 Installation reviews.1815.807–72 Headquarters reviews.1815.808 Price negotiation memorandum.

Subpart 1815.9—Profit

1815.902 Policy.1815.903 Contracting officer

responsibilities.1815.970 NASA structured approach for

profit or fee objective.1815.970–1 General.1815.970–2 Contractor effort.1815.970–3 Other factors.1815.970–4 Facilities capital cost of money.1815.971 Payment of profit or fee under

letter contracts.

Subpart 1815.10—Preaward, Award, andPostaward Notifications, Protests, andMistakes

1815.1003 Notification to successful offeror.1815.1004–70 Debriefing of offerors—Major

System acquisitions.

Subpart 1815.70—Ombudsman

1815.7001 NASA Ombudsman Program.1815.7002 Synopses of solicitations and

contracts.1815.7003 Contract clause.

Authority: 42 U.S.C. 2473(c)(1).

PART 1815—CONTRACTING BYNEGOTIATION

Subpart 1815.4—Solicitation andReceipt of Proposals and Quotations

1815.405 Solicitations for information orplanning purposes.

1815.405–70 Draft requests for proposals.(a) Except for acquisitions described

in 1815.602(b), contracting officers shall


issue draft requests for proposals(DRFPs) for all competitive negotiatedacquisitions expected to exceed$1,000,000 (including all options orlater phases of the same project). DRFPsshall invite comments from potentialofferors on all aspects of the draftsolicitation, including the requirements,schedules, proposal instructions, andevaluation approaches. Potentialofferors should be specifically requestedto identify unnecessary or inefficientrequirements. When consideredappropriate, the statement of work orthe specifications may be issued inadvance of other solicitation sections.

(b) Contracting officers shall plan theacquisition schedule to includeadequate time for issuance of the DRFP,potential offeror review and comment,and NASA evaluation and disposition ofthe comments.

(c) When issuing DRFPs, potentialofferors should be advised that theDRFP is not a solicitation and NASA isnot requesting proposals.

(d) Whenever feasible, contractingofficers should include a summary ofthe disposition of significant DRFPcomments with the final RFP.

(e) The procurement officer maywaive the requirement for a DFRP uponwritten determination that the expectedbenefits will not be realized given thenature of the supply or service beingacquired. The DRFP shall not be waivedbecause of poor or inadequate planning.

1815.406 Preparing requests for proposals(RFPs) and requests for quotations (RFQs).

1815.406–2 Part I—The Schedule.

(NASA supplements paragraph (c))(c) To the maximum extent

practicable, requirements should bedefined as performance basedspecifications/statements of work thatfocus on required outcomes or results,not methods of performance orprocesses.

1815.406–5 Part IV—Representations andinstructions.

(NASA supplements paragraph (b))(b) The information required in

proposals should be kept to theminimum necessary for the sourceselection decision. Although offerorsshould be provided the maximumflexibility in developing their proposals,contracting officers shall specify anyinformation and standard formatsrequired for the efficient and impartialevaluation of proposals.

1815.406–70 Page limitations.

(a) Technical and contractingpersonnel will mutually agree on pagelimitations for their respective portions

of an RFP. Unless approved in writingby the procurement officer, the pagelimitation for the contracting portion ofan RFP (all sections except Section C,Description/specifications/workstatement) shall not exceed 150 pages,and the page limitation for the technicalportion (Section C) shall not exceed 200pages. Attachments to the RFP count aspart of the section to which they relate.In determining page counts, a page isdefined as one side of a sheet, 81⁄2′′×11′′,with at least one inch margins on allsides, using not smaller than 12characters per inch or equivalent type.Foldouts count as an equivalent numberof 81⁄2′′×11′′ pages. The metric standardformat most closely approximating thedescribed standard 81⁄2′′×11′′ size mayalso be used.

(b) Page limitations shall also beestablished for proposals submitted incompetitive acquisitions. Accordingly,technical and contracting personnel willmutually agree on page limitations foreach portion of the proposal. Unless adifferent limitation is approved inwriting by the procurement officer, thetotal initial proposal, excluding titlepages, tables of contents, and cost/priceinformation, shall not exceed 500 pagesusing the page definition of 1815.406–70(a). Firm page limitations shall also beestablished for Best and Final Offers(BAFOs), if requested. The appropriateBAFO page limitations should bedetermined by considering thecomplexity of the acquisition and theextent of any written or oraldiscussions. The same BAFO pagelimitations shall apply to all offerors.Pages submitted in excess of thespecified limitations for the initialproposal and BAFO will not beevaluated by the Government and willbe returned to the offeror.

1815.406–71 Installation reviews.

(a) Installations shall establishprocedures to review all RFPs beforerelease. When appropriate given thecomplexity of the acquisition or thenumber of offices involved insolicitation review, centers shouldconsider use of a single review meeting,called a Solicitation Review Board(SRB), as a streamlined alternative to theserial or sequential coordination of thesolicitation with reviewing offices. TheSRB is a meeting in which all officeshaving review and approvalresponsibilities discuss the solicitationand their concerns. Actions assignedand changes required by the SRB shallbe documented.

(b) When source evaluation board(SEB) procedures are used inaccordance with 1815.612–70, the SEB

shall review and approve the RFP priorto issuance.

1815.406–72 Headquarters reviews.For RFPs requiring Headquarters

review and approval, the procurementofficer shall submit ten copies of theRFP to the Associate Administrator forProcurement (Code HS). Any significantinformation relating to the RFP or theplanned evaluation methodology thatare not included in the RFP itself shouldalso be provided.

1815.407 Solicitation provisions.(NASA supplements paragraphs (c) and(d))

(c)(6) The provision at FAR 52.215–10, Late Submissions, Modifications,and Withdrawals of Proposals shall notbe used in solicitations for the SmallBusiness Innovation Research (SBIR) orSmall Business Technology TransferPrograms, or for broad agencyannouncements listed in 1835.016. Seeinstead 1815.407–70(a).

(d)(4) The contracting officer shallinsert FAR 52.215–16 Alternate II in allcompetitive negotiated solicitations.

1815.407–70 NASA solicitation provisions.(a) The contracting officer shall insert

the provision at 1852.215–73, LateSubmissions, Modifications, andWithdrawals of Proposals (AO, SBIR,and STTR Programs), in lieu of theprovision at FAR 52.215–10 inAnnouncements of Opportunity and inSmall Business Innovation Research(SBIR) and Small Business TechnologyTransfer solicitations. (See 1815.412.)

(b) The contracting officer shall inserta provision substantially as stated at1852.215–74, Alternate Proposals, incompetitive requests for proposals ifreceipt of alternate proposals wouldbenefit the Government.

(c) The contracting officer shall insertthe provision at 1852.215–75, ExpensesRelated to Offeror Submissions, in allrequests for proposals.

(d) The contracting officer shall insertthe provision at 1852.215–77, Pre-proposal/Pre-bid Conference, incompetitive requests for proposals andinvitations for bids where theGovernment intends to conduct a pre-proposal or pre-bid conference. Insertthe appropriate specific informationrelating to the conference.

(e) The contracting officer shall insertthe clause at 1852.214–71, Grouping forAggregate Award, in solicitations whenit is in the Government’s best interestnot to make award for less thanspecified quantities solicited for certainitems or groupings of items. Insert theitem numbers and/or descriptionsapplicable for the particular acquisition.


(f) The Contracting Officer shall insertthe clause at 1852.214–72, FullQuantities, in solicitations when awardwill be made only on the full quantitiessolicited.

(g) The Contracting Officer shall insertthe provision at 1852.214–81, ProposalPage Limitations, in all competitiverequests for proposals.

(h) The Contracting Officer shallinsert the provision at 1852.215–82,Offeror Oral Presentations, incompetitive requests for proposals whenthe Government intends to allowofferors to make oral presentations priorto commencement of the Government’sformal evaluation.

1815.408 Issuing solicitations.

1815.408.70 Blackout notices.(a) Upon release of the formal RFP,

the Contracting Officer shall direct allpersonnel associated with theacquisition to refrain fromcommunicating with prospectiveofferors and to refer all inquiries to theContracting Officer or other authorizedrepresentative. This procedure iscommonly known as a ‘‘blackoutnotice’’ and shall not be imposed priorto release of the RFP. The notice may beissued in any format (e.g., letter orelectronic) appropriate to thecomplexity of the acquisition.

(b) Blackout notices are not intendedto terminate all communication withofferors. Contracting officers shouldcontinue to provide information as longas it does not create an unfaircompetitive advantage or reveal offerorproprietary data.

1815.412 Late proposals, modifications,and withdrawals of proposals.

1815.412–70 Broad agencyannouncements (BAAs), Small BusinessInnovative Research (SBIR), and SmallBusiness Technology Transfer (STTR)solicitations.

For BAAs listed in 1835.016, SBIRPhase I and Phase II solicitations, andSTTR solicitations—

(a) Proposals, or modifications tothem, received from qualified firms afterthe latest date specified for receipt maybe considered if a significant reductionin cost to the Government is probable orif there are significant technicaladvantages, as compared with proposalspreviously received. In such cases, theproject office shall investigate thecircumstances surrounding thesubmission of the late proposal ormodification, evaluate its content, andsubmit written recommendations andfindings to the selection official or adesignee as to whether there is anadvantage to the Government inconsidering the proposal.

(b) The selection official or a designeeshall determine whether to consider theproposal.

(c) Offerors may withdraw proposalsany time before award, provided theconditions in paragraph (b) of theprovision at 1852.215–73, LateSubmissions, Modifications, andWithdrawals of Proposals (AO, SBIR,and STTR Programs), are satisfied.

1815.413 Disclosure and use ofinformation before award.

1815.413–2 Alternate II.(NASA supplements paragraphs (a), (e),and (f))

The alternate procedures at FAR15.413–2 shall be used for NASAacquisitions in lieu of those prescribedat FAR 15.413–1. These procedures, asimplemented by this section, apply bothbefore and after award.

(a) During evaluation proceedings,NASA personnel participating in anyway in the evaluation may not revealany information concerning theevaluation to anyone not alsoparticipating, and then only to theextent that the information is requiredin connection with the evaluation.When non-NASA personnel participate,they shall be instructed to observe theserestrictions.

(e) The notice at FAR 15.413–2(e)shall be placed on the cover sheet of allproposals, whether solicited orunsolicited. (See 1805.402 regardingrelease of the names of firms submittingoffers.)

(f)(i) Except as provided in paragraph(f)(ii) of this section, the procurementofficer is the approval authority todisclose proposal information outsidethe Government. This authorization maybe granted only after compliance withFAR 37.2 and 1837.204, except that thedetermination of nonavailability ofGovernment personnel required by FAR37.2 is not required for disclosure ofproposal information to JPL employees.

(ii) Proposal information in thefollowing classes of proposals may bedisclosed with the prior writtenapproval of a NASA official one levelabove the NASA program officialresponsible for overall conduct of theevaluation. The determination ofnonavailability of Governmentpersonnel required by FAR 37.2 is notrequired for disclosure in theseinstances.

(A) NASA Announcements ofOpportunity proposals;

(B) Unsolicited proposals;(C) NASA Research Announcement

proposals;(D) SBIR and STTR proposals.(iii) The written approvals required by

paragraphs (f) (i) and (ii) of this section

shall be provided to the contractingofficer before the release of the proposalinformation. As a minimum, theapproval shall:

(A) Identify the precise proposalinformation being released;

(B) Identify the person receiving theproposal information and evidence oftheir appointment as a specialgovernment employee or a statement ofthe applicable exception (see 1815.413–270);

(C) Provide a justification of the needfor disclosure of the proposalinformation to the non-Governmentevaluator(s); and

(D) Provide a statement that a signed‘‘Agreement and Conditions forEvaluation of Proposals,’’ in accordancewith paragraph (f)(2) of this section, willbe obtained prior to release of theproposal to the evaluator.

(iv) If JPL personnel, in evaluatingproposal information released to themby NASA, require assistance from non-JPL, non-Government evaluators, JPLmust obtain written approval to releasethe information in accordance withparagraphs (f)(i) and (f)(ii) of thissection.

(f)(2) The NASA official approving thedisclosure of any proposal informationto a non-Government evaluator,including employees of JPL, shall, priorto such disclosure, require each non-Government evaluator to sign thefollowing ‘‘Agreement and Conditionsfor Evaluation of Proposals.’’

Agreement and Conditions for Evaluation ofProposals (October 1996)

(1) The recipient agrees to use proposalinformation for NASA evaluation purposesonly. This limitation does not apply toinformation that is otherwise availablewithout restrictions to the Government,another competing contractor, or the public.

(2) The recipient agrees that the NASAproposal cover sheet notice (FAR 15.413–2(e)and NFS 1815.413–2(e)), and any notice thatmay have been placed on the proposal by itsoriginator, shall be applied to anyreproduction or abstract of any proposalinformation furnished.

(3) Upon completion of the evaluation, therecipient agrees to return all copies ofproposal information or abstracts, if any, tothe NASA office that initially furnished theproposal information for evaluation.

(4) Unless authorized in writing by theNASA official releasing the proposalinformation, the recipient agrees not tocontact either the business entitiesoriginating the proposals or any of theiremployees, representatives, or agentsconcerning any aspect of the proposalinformation or extracts covered by thisagreement.

(5) The recipient agrees to review his or herfinancial interests relative to the entitieswhose proposal information NASA furnishesfor evaluation. At any time the recipient


becomes aware that he or she or a personwith a close personal relationship (householdfamily members, business partners, orassociates) has or acquires a financial interestin the entities whose proposal information issubject to this agreement, the recipient shallimmediately advise the NASA officialreleasing the proposal information, protectthe proposal information, and ceaseevaluation activities pending a NASAdecision resolving the conflict of interest.Signature: llllllllllllllllName typed or printed: llllllllllDate: llllllllllllllllll[End of agreement]

1815.413–270 Appointing non-Governmentevaluators as special Governmentemployees.

(a) Except as provided in paragraph(c) of this section, non-Governmentparticipants in proposal evaluationproceedings, except employees of JPL,shall be appointed as specialGovernment employees.

(b) Appointment as a SpecialGovernment employee is a separateaction from the approval required byparagraph 1815.413–2(f) and may beprocessed concurrently. Appointment asa special Government employee shall bemade by:

(1) The NASA Headquarterspersonnel office when the release ofproposal information is to be made bya NASA Headquarters office; or

(2) The Field Installation personneloffice when the release of proposalinformation is to be made by the FieldInstallation.

(c) Non-Government evaluators neednot be appointed as special Governmentemployees when they evaluate:

(1) NASA Announcements ofOpportunity proposals;

(2) Unsolicited proposals;(3) NASA Research Announcement

proposals; and(4) SBIR and STTR proposals.

Subpart 1815.5—Unsolicited Proposals

1815.502 Policy.

(NASA supplements paragraphs (1) and(2))

(1) An unsolicited proposal mayresult in the award of a contract, a grant,a cooperative agreement, or otheragreement. If a grant or cooperativeagreement is used, the NASA Grant andCooperative Agreement Handbook (NPG5800.1) applies.

(2) Renewal proposals, (i.e., those forthe extension or augmentation ofcurrent contracts) are subject to thesame FAR and NFS regulations,including the requirements of theCompetition in Contracting Act, as areproposals for new contracts.

1815.503 General.(NASA supplements paragraph (e))

(e) NASA will not accept for formalevaluation unsolicited proposalsinitially submitted to another agency orto the Jet Propulsion Laboratory (JPL)without the offeror’s express consent.

1815.504 Advance guidance.(NASA supplements paragraph (b))

(b) The Headquarters Office ofProcurement (Code HK) is responsiblefor preparing for public use a brochuretitled ‘‘Guidance for the Preparation andSubmission of Unsolicited Proposals,’’which shall be provided without chargeby the Office of Procurement and otherNASA officials in response to requestsfor proposal submission information. Adeviation is required for use of anymodified or summarized version of thebrochure or for alternate means ofgeneral dissemination of unsolicitedproposal information. Code HK isresponsible for internal distribution ofthe brochure.

1815.506 Agency procedures.(NASA supplements paragraph (a))

(a)(i) NASA Headquarters and eachNASA field installation shall designatean organizational entity as itsunsolicited proposal coordinating officefor receiving and coordinating thehandling and evaluation of unsolicitedproposals.

(ii) Each installation shall establishprocedures for handling proposalsinitially received by other offices withinthe installation. Misdirected proposalsshall be forwarded by the coordinatingoffice to the proper installation. Fieldinstallation coordinating offices are alsoresponsible for providing guidance topotential offerors regarding theappropriate NASA officials to contactfor general mission-related inquiries orother preproposal discussions.

(iii) Coordinating offices shall keeprecords of unsolicited proposalsreceived and shall provide promptstatus information to requesters. Theserecords shall include, at a minimum, thenumber of unsolicited proposalsreceived, funded, and rejected duringthe fiscal year; the identity of theofferors; and the office to which eachwas referred. The numbers shall bebroken out by source (larger business,small business, university, or nonprofitinstitution).

1815.506–70 Relationship of unsolicitedproposals to NRAs.

An unsolicited proposal for a neweffort or a renewal, identified by anevaluating office as being within thescope of an open NRA, shall beevaluated as a response to that NRA (see

1835.016–70), provided that theevaluating office can either:

(a) State that the proposal is not at acompetitive disadvantage, or

(b) Give the offeror an opportunity toamend the unsolicited proposal toensure compliance with the applicableNRA proposal preparation instructions.If these conditions cannot be met, theproposal must be evaluated separately.

1815.508 Prohibitions.(NASA supplements paragraph (b))

(b) FAR 15.508(b) shall not apply toNASA; see instead 1815.508–70.

1815.508–70 NASA prohibitions.Information (data) in unsolicited

proposals furnished to the Governmentis to be used for evaluation purposesonly. Disclosure outside theGovernment for evaluation is permittedonly to the extent authorized by, and inaccordance with procedures in, FAR15.413–2 and 1815.413–2.

1815.509 Limited use of data.FAR 15.509 shall not apply to NASA.

See instead 1815.509–70.

1815.509–70 Limited use of proposals.(a) The provision at FAR 52.215–12,

Restriction on Disclosure and Use ofData, is applicable to unsolicitedproposals.

(b) If an unsolicited proposal isreceived with a more restrictive legendthan made applicable by paragraph (a)of this section, the procedures of FAR15.413–2(c) apply.

(c) Upon receipt in the coordinatingoffice, the Government notice in FAR15.413–2(e) shall be placed on the coversheet of all unsolicited proposals.

(d) Unsolicited proposals shall beevaluated outside the Government onlyto the extent authorized by, and inaccordance with the proceduresprescribed in, FAR 15.413–2(f) and1815.413–2.

(e) If a request is made under theFreedom of Information Act for anyinformation contained in an unsolicitedproposal, the procedures of FAR15.413–2(g) apply.

1815.570 Foreign proposals.Unsolicited proposals from foreign

sources are subject to NMI 1362.1,Initiation and Development ofInternational Cooperation in Space andAeronautical Programs.

Subpart 1815.6—Source Selection

1815.601 Definitions.(NASA supplements paragraphs (1) and(2))

(1) The source selection authority(SSA) is the Agency official responsible


for proper and efficient conduct of thesource selection process and for makingthe final source selection decision. TheSSA has the following responsibilities:

(i) Approve the evaluation factors,subfactors, and elements, the weight ofthe evaluation factors and subfactors,and any special standards ofresponsibility (see FAR 9.104–2) prior torelease of the RFP, or delegate thisauthority to appropriate managementpersonnel;

(ii) Appoint the source selection team.However, when the Administrator willserve as the SSA, the Official-in-Chargeof the cognizant Headquarters ProgramOffice will appoint the team; and

(iii) Provide the source selection teamwith appropriate guidance and specialinstructions to conduct the evaluationand selection procedures.

(2) The SSA shall be established at thelowest reasonable level for eachacquisition. For acquisitions designatedas Headquarters selections, the SSA willbe identified as part of the Master BuyPlan process (see 1807.71).

1815.602 Applicability.(NASA supplements paragraphs (a) and(b))

(a)(i) Except as indicated in paragraph(b) of this section, NASA competitivenegotiated acquisitions shall beconducted as follows:

(A) Acquisitions of $50 million ormore—in accordance with FAR 15.6 andthis subpart.

(B) Other acquisitions—in accordancewith FAR 15.6 and this subpart exceptsection 1815.612–70.

(ii) Estimated dollar values ofacquisitions shall include the values ofmultiple awards, options, and laterphases of the same project.

(b) FAR 15.6 and this subpart are notapplicable to acquisitions conductedunder the following procedures:

(i) MidRange (see part 1871).(ii) Announcements of Opportunity

(see part 1872).(iii) NASA Research Announcements

(see 1835.016–70).(iv) The Small Business Innovative

Research (SBIR) program and the SmallBusiness Technology Transfer (STTR)pilot program under the authority of theSmall Business Act (15 U.S.C. 638).

(v) Architect and Engineering (A&E)services (see FAR 36.6 and 1836.6).

1815.605–70 Evaluation factors andsubfactors

(a) Typically, NASA establishes threeevaluation factors: Mission Suitability,Cost/Price, and Relevant Experience andPast Performance. Evaluation factorsmay be further defined by subfactors.Although discouraged, subfactors may

be further defined by elements.Evaluation subfactors and any elementsshould be structured to identifysignificant discriminators, or ‘‘keyswingers’’—the essential informationrequired to support a source selectiondecision. Too many subfactors andelements undermine effective proposalevaluation. All evaluation subfactorsand any elements should be clearlydefined to avoid overlap andredundancy.

(b) Mission Suitability factor. (1) Thisfactor indicates the merit or excellenceof the work to be performed or productto be delivered. It includes, asappropriate, both technical andmanagement subfactors. MissionSuitability shall be numericallyweighted and scored on a 1000-pointscale.

(2) The Mission Suitability factor mayidentify evaluation subfactors to furtherdefine the content of the factor. EachMission Suitability subfactor shall beweighted and scored. The adjectivalrating percentages in 1815.608(a)(3)(A)shall be applied to the subfactor weightto determine the point score. Thenumber of Mission Suitabilitysubfactors is limited to four. TheMission Suitability evaluationsubfactors and their weights shall beidentified in the RFP.

(3) Although discouraged, elementsthat further define the content of eachsubfactor may be identified. Elements, ifused, shall not be numerically weightedand scored. The total number ofelements is limited to eight. AnyMission Suitability elements shall beidentified in the RFP.

(4) For cost reimbursementacquisitions, the Mission Suitabilityevaluation shall also include the resultsof any cost realism analysis. The RFPshall notify offerors that the realism ofproposed costs may significantly affecttheir Million Suitability scores.

(c) Cost/Price factor. This factorevaluates the reasonableness and, ifnecessary, the cost realism, of proposedcosts, prices. The Cost/Price factor is notnumerically weighted or scored.

(d) Relevant Experience and PastPerformance factor. (1) This factorindicates the relevant quantitative andqualitative aspects of each offeror’srecord of performing services ordelivering products similar in size,content, and complexity to therequirements of the instant acquisition.The Relevant Experience and PastPerformance factor is not numericallyweighted or scored.

(2) The RFP shall instruct offerors tosubmit data (including data fromrelevant Federal, State, and localgovernments and private contracts) that

can be used to evaluate their relevantexperience and past performance.Typically, the RFP will require:

(i) A list of contracts similar in size,content and complexity to the instantacquisition, showing each contractnumber, the type of contract, a briefdescription of the work, and a point ofcontact from the organization placingthe contract. Normally, the requestedcontracts are limited to those receivedin the last three years. However, inacquisitions that require longer periodsto demonstrate performance quality,such as hardware development, the timeperiod should be tailored accordingly.

(ii) The identification and explanationof any cost overruns or underruns,completion delays, performanceproblems and terminations.

(3) The Contracting Officer may startcollecting past performance data prior toproposal receipt. One method forinitiating the past performanceevaluation early is to request offerors tosubmit their past performanceinformation in advance of the proposaldue date. The RFP could also include apast performance questionnaire forofferors to send their previouscustomers with instructions to returnthe completed questionnaire to theGovernment. Failure of the offeror tosubmit its past performance informationearly or of the customers to submit thecompleted questionnaires shall not be acause for rejection of the proposal norshall it be reflected in the Government’sevaluation of the offeror’s pastperformance.

1815.608 Proposal evaluation.(NASA supplements paragraphs (a) and(b))

(a) Each proposal shall be evaluated toidentify and document:

(i) Any failures to meet any terms andconditions of the RFP;

(ii) All strengths and weaknesses,classified as major or minor to furtherunderscore discriminators amongproposals;

(iii) The numerical score and/oradjectival rating of each MissionSuitability subfactor and for the MissionSuitability factor in total;

(iv) Cost realism, if appropriate;(v) The adjectival rating of the

Relevant Experience and PastPerformance evaluation factor; and

(vi) Any technical, schedule, and costrisk. Risks may result from the offeror’stechnical approach, manufacturing plan,selection of materials, processes,equipment, etc., or as a result of thecost, schedule and performance impactsassociated with these approaches. Riskevaluations must consider theprobability of success, the impact of


failure, and the alternatives available tomeet the requirements. Risk assessmentsshall be considered in determiningMission Suitability strengths;weaknesses and numerical/adjectivalratings. Identified risk areas and thepotential for cost impact shall beconsidered in the cost or priceevaluation.

(1) Cost or price evaluation.(A) In accordance with 1815.804–1,

cost or pricing data shall not berequested in competitive acquisitions.Only the minimal information otherthan cost or pricing data necessary toensure price reasonableness and assesscost realism should be requested.

(B) When contracting on a firm fixedprice basis, the contracting officer shallnot request any cost information, unlessproposed prices appear unreasonable orunrealistically low given the offeror’sproposed approach and there areconcerns that the contractor maydefault.

(C) When contracting on a basis otherthan firm fixed price, the contractingofficer shall perform price and costrealism analyses to assess thereasonableness and realism of theproposed costs. A cost realism analysiswill determine if the costs in an offeror’sproposal are realistic for the work to beperformed, reflect a clear understandingof the requirements, and are consistentwith the various elements of theofferor’s technical proposal. Theanalysis should include:

(a) The probable cost to theGovernment of each proposal, includingany recommended additions orreductions in materials, equipment,labor hours, direct rates and indirectrates. The probable cost should reflectthe best estimate of the cost of anycontract which might result from theofferor’s proposal.

(b) The differences in businessmethods, operating procedures, andpractices as they impact cost.

(c) A level of confidence in theprobable cost assessment for eachproposal.

(D) The cost realism analysis mayresult in adjustments to MissionSuitability scores in accordance withthe procedure described in1815.608(a)(3)(B).

(E) The cost or price evaluation,specifically the cost realism analysis,often requires a technical evaluation ofproposed costs. Contracting officers mayprovide technical evaluators a copy ofthe cost volume or relevant informationfrom it to use in the analysis.

(a)(2) Past performance evaluation.(A) The Relevant Experience and Past

Performance evaluation assesses thecontractor’s performance underpreviously awarded contracts. It shouldevaluate the company, not theindividuals, involved with contractperformance. Relevant Experience andPast Performance is not numericallyscored, but is assigned an adjectivalrating.

(B) The evaluation may be limited tospecific areas of past performance

considered most germane for the instantacquisition. It may include any or all ofthe items listed in FAR 42.1501, and/orany other aspects of past performanceconsidered pertinent to the solicitationrequirements or challenges. Regardlessof the areas of past performance selectedfor evaluation, the same areas shall beevaluated for all offerors in thatacquisition.

(C) The evaluation may consider pastperformance data provided by offerorsand data from other sources.Questionnaires and interviews may beused to solicit assessments of theofferor’s performance, as either a primeor subcontractor, from the offeror’sprevious customers.

(D) All pertinent information,including customer assessments andany offeror rebuttals, will be made partof the source selection records andincluded in the evaluation.

(a)(2) (iii) Firms without relevantexperience or a past performance recordshall not be given a proposal deficiencyor weakness (see 1815.610) and shall begiven a neutral rating. If the adjectivalrating system of 1815.608(a)(3)(A) isused for the Relevant Experience andPast Performance factor, a rating of‘‘Good’’ shall be assigned in such cases.

(3) Technical Evaluation.(A) Mission Suitability subfactors and

the total Mission Suitability factor shallbe evaluated using the followingadjectival ratings, definitions andpercentile ranges.

Adjectival rating Definitions Percentilerange

Excellent .................... A comprehensive and thorough proposal of exceptional merit with one or more major strengths. No weak-nesses or only minor weaknesses exist.

91–100

Very Good ................. A proposal which demonstrates overall competence. One or more major strengths have been found, andstrengths outbalance any weaknesses that exist.

71–90

Good .......................... A proposal which shows a reasonably sound response. There may be strengths or weaknesses, or both.As a whole, weaknesses not off-set by strengths do not significantly detract from the offeror’s response.

51–70

Fair ............................ A proposal that has one or more weaknesses. Weaknesses have been found that outbalance anystrengths that exist.

31–50

Poor ........................... A proposal that has one or more major weaknesses that demonstrate a lack of overall competence orwould require a major proposal revision to address..

0–30

(B) When contracting on a costreimbursement basis, the MissionSuitability evaluation shall reflect theresults of any required cost realismanalysis performed under the cost/pricefactor. A structured approach shall beused to adjust Mission Suitability scoresbased on the degree of assessed costrealism. An example of such anapproach would:

(a) Establish a threshold at whichMission Suitability adjustments wouldstart. The threshold should reflect theacquisition’s estimating uncertainty

(i.e., the higher the degree of estimatinguncertainty, the higher the threshold);

(b) Use a graduated scale thatproportionally adjusts a proposal’sMission Suitability score for its assessedcost realism;

(c) Affect a significant number ofpoints in order to encourage realisticpricing.

(d) Calculate a Mission Suitabilitypoint adjustment based on thepercentage difference between proposedand probable cost as follows:

Services Hardward devel-opment

Pointadjust-ment

+/¥ 5 percent +/¥ 30 percent .. 0+/¥ 6 to 10

percent.+/¥ 31 to 40 per-

cent.¥50

+/¥ 11 to 15percent.

+/¥ 41 to 50 per-cent.

¥100



¥150



¥200

+/¥ more than30 percent.

+/¥ more than70 percent.

¥300


(b) The contracting officer isauthorized to make the determination toreject all proposals received in responseto a solicitation.

§ 1815.608–70 Identification ofunacceptable proposals.

(a) The contracting officer shall notcomplete the initial evaluation of anyproposal when it is determined that theproposal is unacceptable because:

(1) It does not represent a reasonableinitial effort to address itself to theessential requirements of the RFP orclearly demonstrates that the offerordoes not understand the requirements;

(2) In research and developmentacquisitions, a substantial designdrawback is evident in the proposal,and sufficient correction orimprovement to consider the proposalacceptable would require virtually anentirely new technical proposal; or

(3) It contains major technical orbusiness deficiencies or omissions orout-of-line costs which discussions withthe offeror could not reasonably beexpected to cure.

(b) The contracting officer shalldocument the rationale fordiscontinuing the initial evaluation of aproposal in accordance with thissection.

1815.608–71 Evaluation of a singleproposal.

(a) If only one proposal is received inresponse to the solicitation, thecontracting officer shall determine if thesolicitation was flawed or undulyrestrictive and determine if the singleproposal is an acceptable proposal.Based on these findings, the SourceSelection Authority shall direct thecontracting officer to:

(1) Award without discussionsprovided the contracting officerdetermines that adequate pricecompetition exists (see FAR 15.804–1(b)(1)(ii));

(2) Award after negotiating a mutuallyacceptable contract. (The requirementfor submission of cost or pricing datashall be determined in accordance withFAR 15.804–1); or

(3) Reject the proposal and cancel thesolicitation.

(b) The procedure in 1815.608–71(a)also applies when the number ofproposals equals the number of awardscontemplated or when only oneacceptable proposal is received.

1815.609 Competitive range.(NASA supplements paragraphs (a))

(a) Proposals shall not be included inthe competitive range when they do nothave a reasonable chance of selection.To reduce unnecessary expense to both

offerors and NASA, a total of no morethan three proposals shall be a workinggoal in establishing the competitiverange. Field installations may establishprocedures for approval of competitiverange determinations commensuratewith the complexity or dollar value ofan acquisition.

1815.610 Written or oral discussions.(NASA supplements paragraph (c))

(c)(2)(A) The contracting officer shallidentify, and give offerors a reasonableopportunity to address, all weaknessesthat have an adverse impact on theevaluation. Weaknesses are defined asdeficiencies (see FAR 15.601) and otherproposal inadequacies. Weaknesses mayinclude all proposal areas that areinadequate for evaluation, containcontradictory statements, or straincredibility. However, minorirregularities, informalities, or apparentclerical mistakes are not consideredweaknesses. They may be identified toofferors through the clarificationtechnique defined in FAR 15.601, ratherthan discussions as contemplated in thissection.

(B) The contracting officer shalladvise an offeror if, during written ororal discussions, an offeror introduces anew weakness. The offeror can beadvised during the course of thediscussions or as part of the request forBAFO.

(C)The contracting officer shallidentify any cost/price elements that donot appear to be justified and encourageofferors to submit their most favorableand realistic cost/price proposals, butshall not discuss, disclose, or comparecost/price elements of any other offeror.The contracting officer should questioninadequate, conflicting, unrealistic orunsupported cost information;differences between the offeror’sproposal and most probable costassessments; cost realism concerns;differences between audit findings andproposed costs; proposed rates that aretoo high/low; and labor mixes that donot appear responsive to therequirements. No agreement on cost/price elements or a ‘‘bottom line’’ isnecessary.

(c)(3)(A) The contracting officer shalldiscuss contract terms and conditions sothat a ‘‘model’’ contract can be sent toeach offeror with the request for BAFO.Any proposed technical performancecapabilities above those specified in theRFP that have value to the Governmentand are considered proposal strengthsshould be discussed with the offerorand proposed for inclusion in thatofferor’s ‘‘model’’ contract. These itemsare not to be discussed with, orproposed to, other offerors. If the offeror

declines to include these strengths in its‘‘model’’ contract, the Governmentevaluators should reconsider theircharacterization as strengths.

(B) In no case shall the contractingofficer relax or amend RFP requirementsfor any offeror, without amending theRFG and permitting the other offerors anopportunity to propose against therelaxed requirements.

1815.611 Best and Final Offers.(NASA supplements paragraphs (b), (c)and (d))

(b) The request for BAFOs shall also:(i) Identify for any remaining

weaknesses.(ii) Instruct offerors to incorporate all

changes to their offers resulting fromdiscussions, and require cleartraceability from initial proposals;

(iii) Require offerors to complete andexecute the ‘‘model’’ contract, whichincludes any special provisions orperformance capabilities the offerorproposed above those specified in theRFP;

(iv) Caution offerors againstunsubstantiated changes to theirproposals; and

(v) Establish a page limit for BAFOs.(c)(i) Approval of the Associate

Administrator for Procurement (CodeHS) is required to reopen discussionsfor acquisitions of $50 million or more.

(ii) Approval of the procurementofficer is required for all otheracquisitions.

(d)(i) Proposals are rescored based onBAFO evaluations. Scoring changesbetween initial and BAFO proposalsshall be clearly traceable.

(ii) All significant evaluation findingsshall be fully documented andconsidered in the source selectiondecision. A clear and logical audit trailshall be maintained for the rationale forratings and scores, including a detailedaccount of the decisions leading to theselection. Selection is made on the basisof the evaluation criteria established inthe RFP.

(iii) Prior to award, the SSA shall signa source selection statement that clearlyand succinctly justifies the selection.Source selection statements mustdescribe: The acquisition; the SEBevaluation procedures; the substance ofthe Mission Suitability evaluation; andthe evaluation of the Cost/Price andRelevant Experience and PastPerformance factors. The statement alsoaddresses unacceptable proposals, thecompetitive range determination, lateproposals, or any other considerationspertinent to the decision. The statementshall not reveal any confidentialbusiness information. Except for certainmajor system acquisition competitions


(see 1815.1004–70), source selectionstatements shall be releasable tocompeting offerors and the generalpublic upon request. The statementshall be available to the DebriefingOfficial to use in debriefingunsuccessful offerors and shall beprovided to debriefed offerors uponrequest.

(iv) Once the selection decision ismade, the contracting officer shall,without post-selection negotiations,award the contract.

1815.612–70 NASA formal sourceselection.

(a) The source evaluation board (SEB)procedures shall be used for thoseacquisitions identified in1815.602(a)(i)(A).

(b) General. The SEB assists the SSAin decisionmaking by providing expertanalyses of the offerors’ proposals inrelation to the evaluation factors,subfactors, and elements contained inthe solicitation. The SEB will prepareand present its findings to the SSA,avoiding trade-off judgments amongeither the individual offerors or amongthe evaluation factors. The SEB will notmake recommendations for selection tothe SSA.

(c) Designation. (1) The SEB shall becomprised of competent individualsfully qualified to identify the strengths,weaknesses, and risks associated withproposals submitted in response to thesolicitation. The SEB shall be appointedas early as possible in the acquisitionprocess, but not later than acquisitionplan approval.

(2) While SEB participants arenormally drawn from the cognizantinstallation, personnel from other NASAinstallations or other Governmentagencies may participate. When it isnecessary to disclose the proposal (inwhole or in part) outside theGovernment, approval shall be obtainedin accordance with NFS 1815.413–2.

(3) When Headquarters retains SSAauthority, the Headquarters Office ofProcurement (Code HS) must concur onthe SEB appointments. Qualifications ofvoting members, including functionaltitle, grade level, and related SEBexperience, shall be provided.

(d) Organization. (1) The organizationof an SEB is tailored to the requirementsof the particular acquisition. This canrange from the simplest situation, wherethe SEB conducts the evaluation andfact-finding without the use ofcommittees or panels/consultants (asdescribed in 1815.612–70(d) (4) and (5)),to a highly complex situation involvinga major acquisition where two or morecommittees are formed and these, inturn, are assisted by special panels or

consultants in particular areas. Thenumber of committees or panels/consultants shall be kept to a minimum.

(2) The SEB Chairperson is theprincipal operating executive of theSEB. The Chairperson is expected tomanage the team efficiently withoutcompromising the validity of thefindings provided to the SSA as thebasis for a sound selection decision.

(3) The SEB Recorder functions as theprincipal administrative assistant to theSEB Chairperson and is principallyresponsible for logistical support andrecordkeeping of SEB activities.

(4) An SEB committee functions as afact-finding arm of the SEB, usually ina broad grouping of related disciplines(e.g., technical or management). Thecommittee evaluates in detail eachproposal, or portion thereof, assigned bythe SEB in accordance with theapproved evaluation factors, subfactors,and elements, and summarizes itsevaluation in a written report to theSEB. The committee will also respondto requirements assigned by the SEB,including further justification orreconsideration of its findings.Committee chairpersons shall managethe administrative and proceduralmatters of their committees.

(5) An SEB panel or consultantfunctions as a fact-finding arm of thecommittee in a specialized area of thecommittee’s responsibilities. Panels areestablished or consultants named whena particular area requires deeperanalysis than the committee canprovide.

(6) The total of all such evaluators(committees, panels, consultants, etc.excluding SEB voting members and exofficio members) shall be limited to amaximum of 20 people, unlessapproved in writing by the procurementofficer.

(e) Voting members. (1) Votingmembers of the SEB shall includepeople who will have key assignmentson the project to which the acquisitionis directed. However, it is important thatthis should be tempered to ensureobjectivity and to avoid an improperbalance. It may even be appropriate todesignate a management official fromoutside the project as SEB Chairperson.

(2) Non-government personnel shallnot serve as voting members of a NASASEB.

(3) The SEB shall review the findingsof committees, panels or consultantsand use its own collective judgment todevelop the SEB evaluation findingsreported to the SSA. All voting membersof the SEB shall have equal status asrating officials.

(4) SEB membership shall be limitedto a maximum of 7 voting individuals.

Wherever feasible, an assignment to SEBmembership as a voting member shallbe on a full-time basis. When notfeasible, SEB membership shall takeprecedence over other duties.

(5) The following people shall bevoting members of all SEBs:

(i) Chairperson.(ii) A senior, key technical

representative for the project.(iii) An experienced procurement

representative.(iv) A senior Safety & Mission

Assurance (S&MA) representative, asappropriate.

(v) Committee chairpersons (exceptwhere this imposes an undueworkload).

(f) Ex officio members.(1) The number of nonvoting ex

officio (advisory) members shall be keptas small as possible. Ex officio membersshould be selected for the experienceand expertise they can provide to theSEB. Since their advisory role mayrequire access to highly sensitive SEBmaterial and findings, ex officiomembership for persons other thanthose identified in 1815.612–70(f)(3) isdiscouraged.

(2) Nonvoting ex officio members maystate their views and contribute to thediscussions in SEB deliberations, butthey may not participate in the actualrating process. However, the SEBrecorder should be present during ratingsessions.

(3) For field installation selections,the following shall be nonvoting exofficio members on all SEBs:

(i) Chairpersons of SEB committees,unless designated as voting members.

(ii) The procurement officer of theinstallation, unless designated a votingmember.

(iii) The contracting officerresponsible for the acquisition, unlessdesignated a voting member.

(iv) The Chief Counsel and/ordesignee of the installation.

(v) The installation small businessspecialist.

(vi) The SEB recorder.(g) Evaluation plan. (1) The SEB

evaluation plan consists of general andspecific evaluation guidelines (andspecial standards of responsibility,where applicable) established to assesseach offeror’s proposal against the RFPevaluation factors, subfactors, andelements. The evaluation guidelines aredesigned to focus the evaluators’assessment. They are not weighted andare not listed in the RFP. However, thesubstance of the guidelines may beincluded in a narrative description ofthe subfactors and elements. Inaddition, the plan includes the systemused in conducting the evaluation andscoring of each offeror’s proposal.


(2) The evaluation plan shall beapproved by the SEB (and otherpersonnel designated in accordancewith installation procedures) before theformal RFP is issued.

(h) Evaluation. (1) If committees areused, the SEB Chairperson shall sendthem the proposals or portions thereofto be evaluated, along with instructionsregarding the expected function of eachcommittee, and all data considerednecessary or helpful.

(2) While oral reports may be given tothe SEB, each committee shall submit awritten report which should include thefollowing:

(i) Copies of individual worksheetsand supporting comments to the lowestlevel evaluated;

(ii) An evaluation sheet summarizedfor the committee as a whole; and

(iii) A statement for each proposaldescribing any strengths or weaknesseswhich significantly affected theevaluation and stating any reservationsor concerns, together with supportingrationale, which the committee or any ofits members want to bring to theattention of the SEB.

(3) Clear traceability must exist at alllevels of the SEB process. All reportssubmitted by committees or panels willbe retained as part of the SEB records.

(4) Each voting SEB member shallthoroughly review each proposal andany committee reports and findings. TheSEB shall rate or score the proposals foreach evaluation factor and subfactoraccording to its own collectivejudgment, consistent with the approvedevaluation plan. SEB minutes shallreflect this evaluation process.

(i) SEB presentation. (1) The SEBChairperson shall brief the SSA on theresults of the SEB deliberations topermit an informed and objectiveselection of the best source(s) for theparticular acquisition.

(2) The presentation shall focus on themajor strengths and weaknesses foundin the proposals, the probable cost ofeach proposal, and any significantissues and problems identified by theSEB. This presentation must explainany applicable special standards ofresponsibility; evaluation factors,subfactors, and elements; the majorstrengths and weaknesses of theofferors; the Government cost estimate,if applicable; the offerors’ proposedcost/price; the probable cost; theproposed fee arrangements; and thefinal adjectival ratings and scores to thesubfactor level.

(3) Attendance at the presentation isrestricted to people involved in theselection process or who have a validneed to know. The designated

individuals attending the SEBpresentation(s) shall:

(i) Ensure that the solicitation andevaluation processes complied with allapplicable agency policies and that thepresentation accurately conveys theSEB’s activities and findings;

(ii) Not change the establishedevaluation factors, subfactors, elements,weights, or scoring systems; or thesubstance of the SEB’s findings. Theymay, however, advise the SEB to rectifyprocedural omissions, irregularities orinconsistencies, substantiate itsfindings, or revise the presentation.

(4) The SEB recorder will coordinatethe formal presentation includingarranging the time and place of thepresentation, assuring properattendance, and distributingpresentation material.

(5) For Headquarters selections, theHeadquarters Office of Procurement(Code HS) will coordinate thepresentation, including approval ofattendees. When the Administrator isthe SSA, a preliminary presentationshould be made to the Field InstallationDirector and to the Official-in-Charge ofthe cognizant headquarters ProgramOffice.

(j) Recommended SEB presentationformat—(1) Identification of theacquisition. Identifies the installation,the nature of the services or hardware tobe procured, some quantitative measureincluding the Government cost estimatefor the acquisition, and the plannedcontractual arrangement. Avoidsdetailed objectives of the acquisition.

(2) Background. Identifies any earlierphases of a phased acquisition or, as inthe case of the continuing supportservices, identifies the incumbent andany consolidations or proposed changesfrom the existing structure.

(3) Evaluation factors, subfactors, andelements. Explains any specialstandards of responsibility and theevaluation factors, subfactors, andelements. Lists the relative order ofimportance of the evaluation factors andthe numerical weights of the MissionSuitability subfactors. Presents theadjectival scoring system used in theMission Suitability and RelevantExperience and Past Performanceevaluations.

(4) Sources. Indicates the number ofofferors solicited and the number ofofferors expressing interest (e.g.,attendance at a preproposal conference).Identifies the offerors submittingproposals, indicating any smallbusinesses, small disadvantagedbusinesses, and women-ownedbusinesses.

(5) Summary of findings. Lists theinitial and final Mission Suitability

ratings and scores, the offerors’proposed costs/prices, and anyassessment of the probable costs.Introduces any clear discriminator,problem, or issue which could affect theselection. Addresses any competitiverange determination.

(6) Strengths and weaknesses ofofferors. Summarizes the SEB’s findings,using the following guidelines:

(i) Present only the major strengthsand weaknesses of individual offerors.

(ii) Directly relate the strengths andweaknesses to the evaluation factors,subfactors, and elements.

(iii) Indicate the significance of majorstrengths and weaknesses.

(iv) Indicate the results and impact, ifany, of written and/or oral discussionsand BAFOs on ratings and scores.

(7) Final mission suitability ratingsand scores. Summarizes the evaluationsubfactors and elements, the maximumpoints achievable, and the scores of theofferors in the competitive range.

(8) Final cost/price evaluation.Summarizes proposed costs/prices andany probable costs associated with eachofferor including proposed feearrangements. Presents the data asaccurately as possible, showing SEBadjustments to achieve comparability.Identifies the SEB’s confidence in theprobable costs of the individual offerors,noting the reasons for low or highconfidence.

(9) Relevant experience and pastperformance. Reflects the summaryconclusions, supported by specific casedata, with particular emphasis onexemplary or inferior performance andits potential bearing on the instantacquisition.

(10) Special interest. Includes onlyinformation of special interest to theSSA that has not been discussedelsewhere, e.g., procedural errors orother matters that could have an effecton the selection decision.

(k) A source selection statement shallbe prepared in accordance with1815.611(d)(iii). For installationselections, the Field Installation ChiefCounsel or designee will prepare thesource selection statement. ForHeadquarters selections, the Office ofGeneral Counsel or designee willprepare the statement.

Subpart 1815.7—Make-or-BuyPrograms

1815.704 Items and work included.Make-or-buy programs should not

include items or work efforts estimatedto cost less than $500,000.

1815.706 Evaluation, negotiation, andagreement.(NASA supplements paragraph (b))


(b) The make-or-buy program reviewby the installation’s small anddisadvantaged business utilizationspecialist and the SBA representativeshould be concurrent with thecontracting officer’s review. Whenurgent circumstances preclude this or ifthe small and disadvantaged businessspecialist or SBA representative fails torespond on a timely basis, thecontracting officer shall include anexplanatory statement in the contractfile and transmit copies to the specialistand the representative.

1815.708 Contract clause.

1815.708–70 NASA contract clauses.(a) The contracting officer shall insert

the provision at 1852.215–78, Make-or-Buy Program Requirements, insolicitations requiring make-or-buyprograms as provided in FAR 15.703.This provision shall be used inconjunction with the clause at FAR52.215–21, Changes or Additions toMake-or-Buy Program. The contractingofficer may add additional paragraphsidentifying any other informationrequired in order to evaluate theprogram.

(b) The contracting officer shall insertthe clause at 1852.215–79, PriceAdjustment for ‘‘Make-or-Buy’’ Changes,in contracts that include FAR 52.215–21with its Alternate I or II. Insert in theappropriate columns the items that willbe subject to a reduction in the contractvalue.

Subpart 1815.8—Price Negotiation

1815.804 Cost or pricing data andinformation other than cost or pricing data.

1815.804–1 Prohibition on obtaining costor pricing data.(NASA supplements paragraph (b))

(b)(1) The adequate price competitionexception is applicable to both fixed-price and cost-reimbursement typeacquisitions. Contracting officers shallassume that all competitive acquisitionsqualify for this exception. In such cases,information other than cost or pricingdata may be requested to the extentnecessary to ensure pricereasonableness and assess cost realism.

(2)(iii) The contracting officer shalldocument the comparison of the itemwith the catalog or market pricedcommercial item, including thetechnical similarities and differencesand the price justification methodology.

(5) Waivers of the requirement forsubmission of cost or pricing data shallbe prepared in accordance with FAR1.704. A copy of each waiver shall besent to the Headquarters Office ofProcurement (Code HC).

1815.804–170 Acquisitions with theCanadian Commercial Corporation (CCC).

NASA has waived the requirement forthe submission of cost or pricing datawhen contracting with the CCC. Thiswaiver applies through March 31, 1999.The CCC will provide assurance of thefairness and reasonableness of theproposed prices, and will also providefor follow-up audit activity to ensurethat excess profits are found andrefunded to NASA. However,contracting officers shall ensure that theappropriate level of information otherthan cost or pricing data is submitted topermit any required Government cost/price analysis.

1815.804–2 Requiring cost or pricing data.

(NASA supplements paragraph (b))(b)(2) If a certificate of current cost or

pricing data is made applicable as of adate other than the date of priceagreement, the agreed date shouldgenerally be within two weeks of thedate of price agreement.

1815.805–5 Field pricing support.

(NASA supplements paragraph (a))(a)(1)(A) The threshold for obtaining a

field pricing report for costreimbursement contracts is $1,000,000.

(B) A field pricing report consists ofa technical report and an audit report bythe cognizant contract audit activity.Contracting officers should request atechnical report from the ACO only ifNASA resources are not available.

(C) When the required participation ofthe ACO or auditor involves merely averification of information, contractingofficers should obtain this verificationfrom the cognizant office by telephonerather than formal request of fieldpricing support.

(D) When the threshold for requiringfield pricing support is met and the costproposal is for a product of a follow-onnature, contracting officers shall ensurethat the following items, at a minimumare considered: actuals incurred underthe previous contract, learningexperience, technical and productionanalysis, and subcontract proposalanalysis. This information may beobtained through NASA resources or thecognizant DCMC ACO or DCAA.

1815.807 Prenegotiation objectives.

(NASA supplements paragraph (b))(b)(i) Before conducting negotiations

requiring installation or Headquartersreview, contracting officers or theirrepresentatives shall prepare aprenegotiation position memorandumsetting forth the technical, business,contractual, pricing, and other aspectsto be negotiated.

(ii) A prenegotiation positionmemorandum is not required forcontracts awarded under competitivenegotiated procedures.

1815.807–70 Content of the prenegotiationposition memorandum.

The prenegotiation positionmemorandum (PPM) should fullyexplain the contractor and Governmentpositions. Since the PPM will ultimatelybecome the basis for negotiation, itshould be structured to track to theprice negotiation memorandum (seeFAR 15.808 and 1815.808). In additionto the information described in FAR15.807 and, as appropriate, 15.808(a),the PPM should address the followingsubjects, as applicable, in the orderpresented:

(a) Introduction. Include a descriptionof the acquisition and a history of prioracquisitions for the same or similaritems. Address the extent of competitionand its results. Identify the contractorand place of performance (if not evidentfrom the description of the acquisition).Document compliance with law,regulations and policy, includingJOFOC, synopsis, EEO compliance, andcurrent status of contractor systems (seeFAR 15.808(a)(4)). In addition, thenegotiation schedule should beaddressed and the Governmentnegotiation team members identified byname and position.

(b) Type of contract contemplated.Explain the type of contractcontemplated and the reasons for itssuitability.

(c) Special features and requirements.In this area, discuss any special features(and related cost impact) of theacquisition, including such items as—

(1) Letter contract or precontract costsauthorized and incurred;

(2) Results of preaward survey;(3) Contract option requirements;(4) Government property to be

furnished;(5) Contractor/Government

investment in facilities and equipment(and any modernization to be providedby the contractor/Government); and

(6) Any deviations, special clauses, orunusual conditions anticipated, forexample, unusual financing, warranties,EPA clauses and when approvals wereobtained, if required.

(d) Cost analysis. For the basicrequirement, and any option, include—

(1) A parallel tabulation, by elementof cost and profit/fee, of the contractor’sproposal and the Government’snegotiation objective. The negotiationobjective represents the fair andreasonable price the Government iswilling to pay for the supplies/services.For each element of cost, compare the


contractor’s proposal and theGovernment position, explain thedifferences and how the Governmentposition was developed, including theestimating assumptions and projectiontechniques employed, and how thepositions differ in approach. Include adiscussion of excessive wages found (ifapplicable) and their plannedresolution. Explain how historical costs,including costs incurred under a lettercontract (if applicable), were used indeveloping the negotiation objective;

(2) Significant differences between thefield pricing report (including any auditreports) and the negotiation objectivesand/or contractor’s proposal shall behighlighted and explained. For eachproposed subcontract meeting therequirement of FAR 15.806–2(a), thereshall be a discussion of the price and,when appropriate, cost analysesperformed by the contracting officer,including the negotiation objective foreach such subcontract. The discussionof each major subcontract shall includethe type of subcontract, the degree ofcompetition achieved by the primecontractor, the price and, whenappropriate, cost analyses performed onthe subcontractor’s proposal by theprime contractor, and unusual or specialpricing or finance arrangements, and thecurrent status of subcontractnegotiations.

(3) The rationale for the Government’sprofit/fee objectives and, if appropriate,a completed copy of the NASA Form634, Structured Approach—Profit/FeeObjective, and DD form 1861, ContractFacilities Capital Cost of Money, shouldbe included. For incentive and awardfee contracts, describe the plannedarrangement in terms of share lines,ceilings, cost risk, and so forth, asapplicable.

(e) Negotiation approval sought. ThePPM represents the Government’srealistic assessment of the fair andreasonable price for the supplies andservices to be acquired. If negotiationssubsequently demonstrate that a higherdollar amount (or significant term orcondition) is reasonable, the contractingofficer shall document the rationale forsuch a change and request approval toamend the PPM from the originalapproval authority.

1815.807–71 Installation reviews.Each contracting activity shall

establish a formal system for the reviewof prenegotiation position memoranda.The scope of coverage, exact proceduresto be followed, levels of managementreview, and contract file documentationrequirements should be directly relatedto the dollar value and complexity ofthe acquisition. The primary purpose of

these reviews is to ensure that thenegotiator, or negotiation team, isthoroughly prepared to enter intonegotiations with a well-conceived,realistic, and fair plan.

1815.807–72 Headquarters reviews.(a) When a prenegotiation position

has been selected for Headquartersreview and approval, the contractingactivity shall submit to the Office ofProcurement (Code HS) one copy eachof the prenegotiation positionmemorandum, the contractor’s proposal,the Government technical evaluation,and all pricing reports (including anyaudit reports).

(b) The required informationdescribed in paragraph (a) of thissection shall be furnished toHeadquarters as soon as practicable andsufficiently in advance of the plannedcommencement of negotiations to allowa reasonable period of time forHeadquarters review. Electronicsubmittal is acceptable.

1815.808 Price negotiation memorandum.(NASA supplements paragraphs (a) and(b))

(a)(i) The price negotiationmemorandum (PNM) serves as adetailed summary of: the technical,business, contractual, pricing (includingprice reasonableness), and otherelements of the contract negotiated; andthe methodology and rationale used inarriving at the final negotiatedagreement.

(ii) A PNM is not required for acontract awarded under competitivenegotiated procedures. However, theinformation required by FAR 15.808shall be reflected in the evaluation andselection documentation to the extentapplicable.

(b) When the PNM is a ‘‘stand-alone’’document, it shall contain theinformation required by the FAR andNFS for both PPMs and PNMs.However, when a PPM has beenprepared under 1815.807, thesubsequent PNM need only provide anyinformation required by FAR 15.808that was not provided in the PPM, aswell as any changes in the status offactors affecting cost elements (e.g., useof different rates, hours, subcontractors;wage rate determinations; or the currentstatus of the contractor’s systems).

Subpart 1815.9—Profit

1815.902 Policy.(NASA supplements paragraph (a)).

(a)(1) The NASA structured approachfor determining profit or fee objectives,described in 1815.970, shall be used todetermine profit or fee objectives for

conducting negotiations in thoseacquisitions that require cost analysis,except as indicated in paragraph (a)(2)of this section.

(2) The use of the NASA structuredapproach for profit or fee is not requiredfor:

(A) Architect-engineer contractors;(B) Management contracts for

operation and/or maintenance ofGovernment facilities;

(C) Construction contracts;(D) Contracts primarily requiring

delivery of material supplied bysubcontractors;

(E) Termination settlements;(F) Cost-plus-award-fee contracts

(however, contracting officers may findit advantageous to perform a structuredprofit/fee analysis as an aid in arrivingat an appropriate fee arrangement); and

(G) Contracts having unusual pricingsituations when the procurement officerdetermines in writing that thestructured approach is unsuitable.

1815.903 Contracting officerresponsibilities.

(NASA supplements paragraph (d))(d)(1)(ii) In architect-engineer

contracts, the price or estimated costand fee for services other than theproduction and delivery of designs,plans, drawings, and specifications, arenot subject to the 6 percent limitationset forth in FAR 15.903(d)(1).

1815.970 NASA structured approach forprofit or fee objective.

1815.970–1 General.

(a) The NASA structured approach fordetermining profit or fee objectives is asystem of assigning weights to costelements and other factors to calculatethe objective. Contracting officers shalluse NASA Form 634 to develop theprofit or fee objective and shall use theweight ranges listed after each categoryand factor on the form after consideringthe factors in 1815.970–2 through1815.970–4. The rationale supportingthe assigned weights shall bedocumented in the PPM in accordancewith 1815.807–70(d)(3).

(b)(1) The structured approach wasdesigned for determining profit or feeobjectives for commercial organizations.However, the structured approach shallbe used as a basis for arriving at feeobjectives for nonprofit organizations(FAR subpart 31.7), excludingeducational institutions (FAR subpart31.3), in accordance with paragraph(b)(2) of this section. (It is NASA policynot to pay profit or fee on contracts witheducational institutions.)

(2) For contracts with nonprofitorganizations under which profits or


fees are involved, an adjustment of upto 3 percent shall be subtracted from thetotal profit/fee objective. In developingthis adjustment, it will be necessary toconsider the following factors:

(i) Tax position benefits;(ii) Granting of financing through

letters of credit;(iii) Facility requirements of the

nonprofit organization; and(iv) Other pertinent factors that may

work to either the advantage ordisadvantage of the contractor in itsposition as a nonprofit organization.

1815.970–2 Contractor effort.(a) This factor takes into account what

resources are necessary and what thecontractor must do to meet the contractperformance requirements. Thesuggested cost categories under thisfactor are for reference purposes only.The format of individual proposals willvary, but these broad categories providea sample structure for the evaluation ofall categories of cost. Elements of costshall be separately listed under theappropriate category and assigned aweight from the category range.

(b) Regardless of the categories of costdefined for a specific acquisition,neither the cost of facilities nor theamount calculated for the cost of moneyfor facilities capital shall be included aspart of the cost base in column 1. (a) inthe computation of profit or fee.

(c) Evaluation of this factor requiresanalyzing the cost content of theproposed contract as follows:

(1) Material acquisition(subcontracted items, purchased parts,and other material). (i) Consider themanagerial and technical effortsnecessary for the prime contractor toselect subcontractors and administersubcontracts, including efforts tointroduce and maintain competition.These evaluations shall be performedfor purchases of raw materials or basiccommodities; purchases of processedmaterial, including all types ofcomponents of standard of near-standard characteristics; and purchasesof pieces, assemblies, subassemblies,special tooling, and other productsspecial to the end item. In performingthe evaluation, also consider whetherthe contractor’s purchasing programmakes a substantial contribution to theperformance of a contract through theuse of subcontracting programsinvolving many sources, new complexcomponents and instrumentation,incomplete specifications, and closesurveillance by the prime contractor.

(ii) Recognized costs proposed asdirect material costs, such as scrapcharges, shall be treated as material forprofit/fee evaluation. If intracompany

transfers are accepted at price inaccordance with FAR 31.205–26(e), theyshall be evaluated as a single elementunder the material acquisition category.For other intracompany transfers, theconstituent elements of cost shall beidentified and weighted under theappropriate cost category, i.e., material,labor, and overhead.

(2) Direct labor (engineering, service,manufacturing, and other labor). (i)Analysis of the various items of costshould include evaluation of thecomparative quality and level of theengineering talents, service contractlabor, manufacturing skills, andexperience to be employed. Inevaluating engineering labor for thepurpose of assigning profit/fee weights,consideration should be given to theamount of notable scientific talent orunusual or scarce engineering talentneeded, in contrast to journeymanengineering effort or supportingpersonnel.

(ii) Evaluate service contract labor ina like manner by assigning higherweights to engineering, professional, orhighly technical skills and lowerweights to semiprofessional or otherskills required for contract performance.

(iii) Similarly, the variety ofengineering, manufacturing and othertypes of labor skills required and thecontractor’s manpower resources formeeting these requirements should beconsidered. For purposes of evaluation,subtypes of labor (for example, qualitycontrol, and receiving and inspection)proposed separately from engineering,service, or manufacturing labor shouldbe included in the most appropriatelabor type. However, the sameevaluation considerations as outlined inthis section will be applied.

(3) Overhead and general management(G&A). (i) Analysis of overhead andG&A includes the evaluation of themakeup of these expenses, how muchthey contribute to contract performance,and the degree of substantiationprovided for the rates proposed infuture years.

(ii) Contracting officers should alsoconsider the historical accuracy of thecontractor’s proposed overheads as wellas the ability to control overhead poolexpenses.

(iii) The contracting officer, in anevaluation of the overhead rate of acontractor using a single indirect costrate, should break out the applicablesections of the composite rate whichcould be classified as engineeringoverhead, manufacturing overhead,other overhead pools, and G&Aexpenses, and apply the appropriateweight.

(4) Other costs. Include all otherdirect costs associated with contractorperformance under this item, forexample, travel and relocation, directsupport, and consultants. Analysis ofthese items of cost should include theirnature and how much they contribute tocontract performance.

1815.970–3 Other factors.(a) Cost risk. The degree of risk

assumed by the contractor shouldinfluence the amount of profit or fee acontractor is entitled to anticipate. Forexample, if a portion of the risk hasbeen shifted to the Government throughcost-reimbursement or priceredetermination provisions, unusualcontingency provisions, or other riskreducing measures, the amount of profitor fee should be less than forarrangements under which thecontractor assumes all the risk. Thisfactor is one of the most important inarriving at prenegotiation profit/feeobjectives.

(1) Other risks on the part of thecontractor, such as loss of reputation,losing a commercial market, or losingpotential profit/fee in other fields, shallnot be considered in this factor.Similarly, any risk on the part of thecontracting office, such as the risk of notacquiring an effective space vehicle, isnot within the scope of this factor.

(2) The degree of cost responsibilityassumed by the contractor is related tothe share of total contract cost riskassumed by the contractor through theselection of contract type. The weightfor risk by contract type would usuallyfall within the 0-to-3 percent range forcost-reimbursement contracts and 3-to-7percent range for fixed-price contracts.

(i) Within the ranges set forth inparagraph (a)(2) of this section, a cost-plus-fixed-fee contract normally wouldnot justify a reward for risk in excess of0 percent, unless the contract containscost risk features such as ceilings onoverheads, etc. In such cases, up to 0.5percent may be justified. Cost-plus-incentive-fee contracts fill the remainingportion of the range, with weightingsdirectly related to such factors asconfidence in target cost, share ratio offees, etc.

(ii) The range for fixed-price typecontracts is wide enough toaccommodate the various types of fixed-price arrangements. Weighting shouldbe indicative of the price risk assumedand the end item required, with onlyfirm-fixed-price contracts withrequirements for prototypes or hardwarereaching the top end of the range.

(3) The cost risk arising from contracttype is not the only form of cost risk toconsider.


(i) The contractor’s subcontractingprogram may have a significant impacton the contractor’s acceptance of riskunder a particular contract type. Thisconsideration should be a part of thecontracting officer’s overall evaluationin selecting a weight to apply for costrisk. It may be determined, for instance,that the prime contractor has effectivelytransferred real cost risk to asubcontractor, and the contract cost riskweight may, as a result, be below therange that would otherwise apply forthe contract type proposed. The contractcost risk weigh should not be lowered,however, merely on the basis that asubstantial portion of the contract costsrepresents subcontracts unless thosesubcontract costs represent a substantialtransfer of the contractor’s risk.

(ii) In making a contract cost riskevaluation in an acquisition thatinvolves definitization of a lettercontract, unpriced change orders, orunpriced orders under BOAs,consideration should be given to theeffect on total contract cost risk as aresult of having partial performancebefore definitization. Under somecircumstances it may be reasoned thatthe total amount of cost risk has beeneffectively reduced. Under othercircumstances it may be apparent thatthe contractor’s cost risk is substantiallyunchanged. To be equitable,determination of a profit/fee weight forapplication to the total of all recognizedcosts, both incurred and yet to beexpended, must be made withconsideration of all attendantcircumstances and should not be basedsolely on the portion of costs incurred,or percentage of work completed, beforedefinitization.

(b) Investment. NASA encourages itscontractors to perform their contractswith a minimum of financial, facilities,or other assistance from theGovernment. As such, it is the purposeof this factor to encourage the contractorto acquire and use its own resources tothe maximum extent possible.Evaluation of this factor should includean analysis of the contractor’s facilitiesand the frequency of payments.

(1) To evaluate how facilitiescontribute to the profit/fee objectiverequires knowledge of the level offacilities utilization needed for contractperformance, the source and financingof the required facilities, and the overallcost effectiveness of the facilitiesoffered. Contractors furnishing theirown facilities that significantlycontribute to lower total contract costsshould be provided additional profit/fee. On the other hand, contractors thatrely on the Government to provide orfinance needed facilities should receive

a correspondingly lower profit/fee.Cases between the above examplesshould be evaluated on their merits,with either a positive or negativeadjustment, as appropriate, in the profit/fee objective. However, where a highlyfacilitized contractor is to perform acontract that does not benefit from thisfacilitization, or when a contractor’s useof its facilities has a minimum costimpact on the contract, profit/fee neednot be adjusted.

(2) In analyzing payments, considerthe frequency of payments by theGovernment to the contractor andunusual payments. The key to thisweighting is proper consideration of theimpact the contract will have on thecontractor’s cash flow. Generally,negative consideration should be givenfor payments more frequent thanmonthly, with maximum reductionbeing given as the contractor’s workingcapital approaches zero. Positiveconsideration should be given forpayments less frequent than monthly.

(c) Performance. The contractor’s pastand present performance should beevaluated in such areas as productquality, meeting performance schedules,efficiency in cost control (including theneed for and reasonableness of costsincurred), accuracy and reliability ofprevious cost estimates, degree ofcooperation by the contractor (bothbusiness and technical), timelyprocessing of changes and compliancewith other contractual provisions.

(d) Subcontract programmanagement. Subcontract programmanagement includes evaluation of thecontractor’s commitment to itscompetition program and its past andpresent performance in competition insubcontracting. If a contractor hasconsistently achieved excellent resultsin these areas in comparison with othercontractors in similar circumstances,such performance merits aproportionately greater opportunity forprofit or fee. Conversely, a poor recordin this regard should result in a lowerprofit or fee.

(e) Federal socioeconomic programs.In addition to rewarding contractors forunusual initiative in supportingGovernment socioeconomic programs,failure or unwillingness on the part ofthe contractor to support these programsshould be viewed as evidence of poorperformance for the purpose ofestablishing this profit/fee objectivefactor.

(f) Special situations. (1)Occasionally, unusual contract pricingarrangements are made with thecontractor under which it agrees toaccept a lower profit or fee for changesor modifications within a prescribed

dollar value. In such circumstances, thecontractor should receive favorableconsideration in developing the profit/fee objective.

(2) This factor need not be limited tosituations that increase profit/fee levels.A negative consideration may beappropriate when the contractor isexpected to obtain spin-off benefits as adirect result of the contract, forexample, products with commercialapplication.

1815.970–4 Facilities capital cost ofmoney.

(a) When facilities capital cost ofmoney is included as an item of cost inthe contractor’s proposal, it shall not beincluded in the cost base for calculatingprofit/fee. In addition, a reduction in theprofit/fee objective shall be made in theamount equal to the facilities capitalcost of money allowed in accordancewith FAR 31.205–10(a)(2).

(b) CAS 417, Cost of money as anelement of the cost of capital assetsunder construction, should not appearin contract proposals. These costs areincluded in the initial value of a facilityfor purposes of calculating depreciationunder CAS 414.

1815.971 Payment of profit or fee underletter contracts.

NASA’s policy is to pay profit or feeonly on definitized contracts.

Subpart 1815.10—Preaward, Award,and Postaward Notifications, Protests,and Mistakes

1815.1003 Notification to successfulofferor.

The reference to notice of award inFAR 15.1003 on negotiated acquisitionsis a generic one. It relates only to theformal establishment of a contractualdocument obligating both theGovernment and the offeror. The noticeis effected by the transmittal of a fullyapproved and executed definitivecontract document, such as the awardportion of SF 33, SF 26, SF 1449, or SF1447, or a letter contract when adefinitized contract instrument is notavailable but the urgency of therequirement necessitates immediateperformance. In this latter instance, theprocedures in 1816.603 for approval andissuance of letter contracts shall befollowed:

1815.1004–70 Debriefing of offerors—Major System acquisitions.

(a) When an acquisition is conductedin accordance with the Major Systemacquisition procedures in part 1834 andmultiple offerors are selected, thedebriefing will be limited in such amanner that it does not prematurely


disclose innovative concepts, designs,and approaches of the successfulofferors that would result in atransfusion of ideas.

(b) When Phase B awards are made foralternative system design concepts, thesource selection statements shall not bereleased to competing offerors or thegeneral public until the release of thesource selection statement for Phase C/D without the approval of the AssociateAdministrator for Procurement (CodeHS).

Subpart 1815.70—Ombudsman

1815.7001 NASA Ombudsman Program.NASA’s implementation of an

ombudsman program is in NPG 5101.33,Procurement Guidance.

1815.7002 Synopses of solicitations andcontracts.

In all synopses announcingcompetitive acquisitions, the contactingofficer shall indicate that the clause at1852.215–84, Ombudsman, isapplicable. This may be accomplishedby referencing the clause number andidentifying the installationOmbudsman.

1815.7003 Contract clause.The contracting officer shall insert a

clause substantially the same as the oneat 1852.215–84, Ombudsman, in allsolicitations (including draftsolicitations) and contracts.

3. Part 1816 is revised to read asfollows:

PART 1816—TYPES OF CONTRACTS

Subpart 1816.2—Fixed-Price ContractsSec.1816.202 Firm-fixed-price contracts.1816.202–70 NASA contract clause.1816.203 Fixed-price contracts with

economic price adjustment.1816.203–4 Contract clauses.

Subpart 1816.3—Cost-ReimbursementContracts

1816.303–70 Cost-sharing contracts.1816.306 Cost-plus-fixed-fee contracts.1816.307 Contract clauses.1816.307–70 NASA contract clauses.

Subpart 1816.4—Incentive Contracts

1816.402 Application of pre-determined,formula-type incentives.

1816.402–2 Technical performanceincentives.

1816.402–270 NASA technical performanceincentives.

1816.404 Cost-reimbursement incentivecontracts.

1816.404–2 Cost-plus-award-fee (CPAF)contracts.

1816.404–270 CPAF contracts.1816.404–271 Base fee.1816.404–272 Award fee evaluation

periods.

1816.404–273 Award fee evaluations.1816.404–274 Award fee evaluation factors.1816.404–275 Award fee evaluation

scoring.1816.405 Contract clauses.1816.405–70 NASA contract clauses.

Subpart 1816.5—Indefinite-DeliveryContracts1816.504 Indefinite quantity contracts.1816.505 Ordering.1816.505–70 Task Ordering.1816.506–70 NASA contract clause.

Subpart 1816.6—Time-and-Materials, Labor-House, and Letter Contracts1816.603 Letter contracts.1816.603–370 Approvals.


PART 1816—TYPES OF CONTRACTS

Subpart 1816.2—Fixed-Price Contracts

1816.202 Firm-fixed-price contracts.

1816.202–70 NASA contract clause.The contracting officer shall insert the

clause at 1852.216–78, Firm-Fixed-Price, in firm-fixed-price solicitationsand contracts. Insert the appropriateamount in the resulting contract.

1816.203 Fixed-price contracts witheconomic price adjustment.

1816.203–4 Contract clauses. (NASAsupplements paragraphs (a) and (d)).

(a) In addition to the approvalrequirements in the prescriptions atFAR 52.216–2 through 52.216–4, thecontracting officer shall coordinate withthe installation’s Deputy Chief FinancialOfficer (Finance) before exceeding theten-percent limit in paragraph (c)(1) ofthe clauses at FAR 52.216–2 through52.216–4.

(d)(2) Contracting officers shallcontact the Office of Procurement, CodeHC, for specific guidance on preparingclauses using cost indexes. Such clausesrequire advance approval by theAssociate Administrator forProcurement. Requests for approvalshall be submitted to the HeadquartersOffice of Procurement (Code HS).

Subpart 1816.3—Cost-ReimbursementContracts

1816.303–70 Cost-sharing contracts.(a) Cost-sharing with for-profit

organizations. (1) Cost sharing by for-profit organizations is mandatory in anycontract for basic or applied researchresulting from an unsolicited proposal,and may be accepted in any othercontract when offered by the proposingorganization. The requirement for cost-sharing may be waived when thecontracting officer determines in writingthat the contractor has no commercial,production, education, or service

activities that would benefit from theresults of the research, and thecontractor has no means of recoveringits shared costs on such projects.

(2) The contractor’s cost-sharing maybe any percentage of the project cost. Indetermining the amount of cost-sharing,the contracting officer shall consider therelative benefits to the contractor andthe Government. Factors that should beconsidered include—

(i) The potential for the contractor torecover its contribution from non-Federal sources;

(ii) The extent to which the particulararea of research requires specialstimulus in the national interest; and

(iii) The extent to which the researcheffort or result is likely to enhance thecontractor’s capability, expertise, orcompetitive advantage.

(b) Cost-sharing with not-for-profitorganizations. (1) Costs to performresearch stemming from an unsolicitedproposal by universities and othereducational or not-for-profit institutionsare usually fully reimbursed. When thecontracting officer determines that thereis a potential for significant benefit tothe institution cost-sharing will beconsidered.

(2) The contracting officer willnormally limit the institution’s share tono more than 10 percent of the project’scost.

(c) Implementation. Cost-sharing shallbe stated as a minimum percentage ofthe total allowable costs of the project.The contractor’s contributed costs maynot be charged to the Government underany other contract or grant, includingallocation to other contracts and grantsas part of an independent research anddevelopment program.

1816.306 Cost-plus-fixed-fee contracts.(NASA supplements paragraph (d)).

(d) Completion and term forms.(4) Term form contracts are

incompatible with performance basecontracting (PBC) and should not beused with PBC requirements.

1816.307 Contract clauses. (NASAsupplements paragraphs (a), (b), (d), and(g)).

(a) In paragraph (h)(2)(ii)(B) of theAllowable Cost and Payment clause atFAR 52.216–7, the period of years maybe increased to correspond with anystatutory period of limitation applicableto claims of third parties against thecontractor; provided, that acorresponding increase is made in theperiod for retention of records requiredin paragraph (f) of the clause at FAR52.215–2, Audit and Records—Negotiation.

(b) In solicitations and contractscontaining the clause at FAR 52.216–8,


Fixed Fee, the Schedule shall includeappropriate terms, if any, for provisionalbilling against fee.

(d) In solicitations and contractscontaining the clause at FAR 52.216–10,Incentive Fee, the Schedule shallinclude appropriate terms, if any, forprovisional billing against fee.

(g) In paragraph (g)(2)(ii) of theAllowable Cost and Payment—Facilitiesclause at FAR 52.216–13, the period ofyears may be increased to correspondwith any statutory period of limitationapplicable to claims of third partiesagainst the contractor; provided, that acorresponding increase is made in theperiod for retention of records requiredin paragraph (f) of the clause at FAR52.215–2, Audit and Records—Negotiation.

1816.307–70 NASA contract clauses.(a) The contracting officer shall insert

the clause at 1852.216–73, EstimatedCost and Cost Sharing, in each contractin which costs are shared by thecontractor pursuant to 1816.303–70.

(b) The contracting officer shall insertthe clause substantially as stated at1852.216–74, Estimated Cost and FixedFee, in cost-plus-fixed-fee contracts.

(c) The contracting officer may insertthe clause at 1852.216–75, Payment ofFixed Fee, in cost-plus-fixed-feecontracts. Modifications to the clauseare authorized.

(d) The contracting officer may insertthe clause at 1852.216–81, EstimatedCost, in cost-no-fee contracts that arenot cost sharing or facilities contracts.

(e) The contracting officer may inserta clause substantially as stated at1852.216–87, Submission of Vouchersfor Payment, in cost-reimbursementsolicitations and contracts.

(f) When either FAR clause 52.216–7,Allowable Cost and Payment, or FARclause 52.216–13, Allowable Cost andPayment—Facilities, is included in thecontract, as prescribed at FAR 16.307 (a)and (g), the contracting officer shouldinclude the clause at 1852.216–89,Assignment and Release Forms.

Subpart 1816.4—Incentive Contracts

1816.402 Application of pre-determined,formula-type incentives.

1816.402–2 Technical performanceincentives.

1816.402–270 NASA technicalperformance incentives.

(a) A performance incentive shall beincluded in all contracts where theprimary deliverable(s) is (are) hardwareand where total estimated cost and feeis greater than $25 million unless it isdetermined that the nature of the

acquisition (for example, commercialoff-the-shelf computers) would noteffectively lend itself to a performanceincentive. Any exception to thisrequirement shall be approved inwriting by the Center Director.Performance incentives may beincluded in hardware contracts valuedunder $25 million at the discretion ofthe procurement officer. Performanceincentives, which are objective andmeasure hardware performance afterdelivery and acceptance, are separatefrom other incentives, such as cost ordelivery incentives.

(b) When a performance incentive isused, it shall be structured to be bothpositive and negative based onhardware performance after deliveryand acceptance. In doing so, thecontract shall establish a standard levelof performance based on the salienthardware performance requirement.This standard performance level isnormally the contract’s minimumperformance requirement. No incentiveamount is earned at this standardperformance level. Discrete units ofmeasurement based on the sameperformance parameter shall beidentified for performance both aboveand below the standard. Specificincentive amounts shall be associatedwith each performance level frommaximum beneficial performance(maximum positive incentive) tominimal beneficial performance or totalfailure (maximum negative incentive).The relationship between any givenincentive, both positive and negative,and its associated unit of measurementshould reflect the value to theGovernment of that level of hardwareperformance. The contractor should notbe rewarded for above-standardperformance levels that are of no benefitto the Government.

(c) The final calculation of theperformance incentive shall be donewhen hardware performance, as definedin the contract, ceases or when themaximum positive incentive is reached.When hardware performance ceasesbelow the standard established in thecontract, the Government shall calculatethe amount due and the contractor shallpay the Government that amount. Oncehardware performance exceeds thestandard, the contractor may requestpayment of the incentive amountassociated with a given level ofperformance, provided that suchpayments shall not be more frequentthan monthly. When hardwareperformance ceases above the standardlevel of performance, or when themaximum positive incentive is reached,the Government shall calculate the finalperformance incentive earned and

unpaid and promptly remit it to thecontractor. The exclusion at FAR16.405(e)(3) does not apply to decisionsmade as to the amount(s) of positive ornegative incentive.

(d) When the deliverable hardwarelends itself to multiple, meaningfulmeasures of performance, multipleperformance incentives may beestablished. When the contract requiresthe sequential delivery of severalhardware items (e.g.. multiplespacecraft), separate performanceincentive structures may be establishedto parallel the sequential delivery anduse of the deliverables.

(e) In determining the value of themaximum performance incentivesavailable, the contracting officer shallfollow the following rules.

(1) The sum of the maximum positiveperformance incentive and other fixedor earnable fees on the contract shall notexceed the limitations in FAR 15.903(c).

(2) For an award fee contract.(i) The individual values of the

maximum positive performanceincentive and the total potential awardfee (including any base fee) shall eachbe at least one-third of the totalpotential contract fee. The remainingone-third of the total potential contractfee may be divided between award feeand the maximum performanceincentive at the discretion of thecontracting officer.

(ii) The maximum negativeperformance incentive for research anddevelopment hardware (e.g., the firstand second units) shall be equal inamount to the total earned award fee(including any base fee). The maximumnegative performance incentives forproduction hardware (e.g., the third andall subsequent units of any hardwareitems) shall be equal in amount to thetotal potential award fee (including anybase fee). Where one contract containsboth cases described above, any base feeshall be allocated reasonably among theitems.

(3) For cost reimbursement contractsother than award fee contracts, themaximum negative performanceincentives shall not exceed the totalearned fee under the contract.

1816.404 Cost-reimbursement incentivecontracts.

1816.404–2 Cost-plus-award-fee (CPAF)contracts.

1816.404–270 CPAF contracts.(a) For purposes of this subsection,

‘‘performance based contracting’’ meanseffort which can be contractuallydefined so that the results of thecontractor’s effort can be objectivelymeasured in terms of technical and


quality achievement, schedule progressor cost performance. ‘‘Nonperformancebased contracting’’ means contractoreffort that cannot be objectivelymeasured but is evaluated based onsubjective, qualitative assessments (e.g.,controlling changes or interfacing withother agencies, contractors andinternational organizations).

(b)(1) Normally, award fee incentivesare not used when contractrequirements can be defined insufficient detail to allow forperformance based contracting. Ifincentives are considered necessary,objectively measured incentives asdescribed in FAR 16.402 are preferred.

(2) Award fee incentives may be usedas follows:

(i) As a CPAF contract where a costreimbursement contract is appropriateand none of the requirements can bedefined to permit performance basedcontracting;

(ii) As a CPAF line item fornonperformance based requirements inconjunction with a non-CPAF lineitem(s) for performance basedrequirements. In this instance, fees forthe performance based andnonperformance based requirementsshall be developed separately IAW FAR15–9 and 1815.9; and

(iii) Under a performance basedcontract when it is determined to benecessary to motivate the contractortoward exceptional performance (seeFAR 16.404–2(b)(ii)) and the increasedlevel of performance justifies theadditional administrative expense.When an award fee incentive is used inthis instance, the basic contract typeshall be other than CPAF (e.g., CPIF orFPIF). The potential award fee shouldnot exceed 10 percent of the totalcontract fee or profit and shall not beused to incentivize cost performance.

(3) Award fee incentives shall not beused with a cost-plus-fixed-fee (CPFF)contract.

(c) Use of an award fee incentive shallbe approved in writing by theprocurement officer. The procurementofficer’s approval shall include adiscussion of the other types ofcontracts considered and shall indicatewhy an award fee incentive is theappropriate choice. Award feeincentives should be used on contractswith a total estimated cost and feegreater than $2 million per year. Theprocurement officer may authorize useof award fee for lower-valuedacquisitions, but should do so only inexceptional situations, such as contractrequirements having direct health orsafety impacts, where the judgmentalassessment of the quality of contractorperformance is critical.

1816.404–271 Base fee.(a) A base fee shall not be used on

CPAF contracts for which the periodicaward fee evaluations are final(1816.404–273(a)). In thesecircumstances, contractor performanceduring any award fee period isindependent of and has no effect onsubsequent performance periods or thefinal product/results at contractcompletion. For other contracts, such asthose for hardware or softwaredevelopment, the procurement officermay authorize the use of a base fee notto exceed 3 percent. Base fee shall notbe used when an award fee incentive isused in conjunction with a performancebased contract structure, such as anincentive fee arrangement.

(b) When a base fee is authorized foruse in a CPAF contract, it shall be paidonly if the final award fee evaluation is‘‘satisfactory’’ or better. (See 1816.404–273 and 1816.404–275) Pending finalevaluation, base fee may be paid duringthe life of the contract at definedintervals on a provisional basis. If thefinal award fee evaluation is ‘‘poor/unsatisfactory’’, all provisional base feepayments shall be refunded to theGovernment.

1816.404–272 Award fee evaluationperiods.

(a) Award fee evaluation periodsshould be at least 6 months in length.When appropriate, the procurementofficer may authorize shorter evaluationperiods after ensuring that theadditional administrative costsassociated with the shorter periods areoffset by benefits accruing to theGovernment. Where practicable, such asdevelopmental contracts with definedperformance milestones (e.g.,Preliminary Design Review, CriticalDesign Review, initial system test),establishing evaluation periods atconclusion of the milestones rather thancalendar dates, or in combination withcalendar dates should be considered. Inno case shall an evaluation period belonger than 12 months.

(b) A portion of the total availableaward fee contract shall be allocated toeach of the evaluation periods. Thisallocation may result in an equal orunequal distribution of fee among theperiods. The contracting officer shouldconsider the nature of each contract andthe incentive effects of fee distributionin determining the appropriateallocation structure.

1816.404–273 Award fee evaluations.(a) Award fee evaluations are either

interim or final. On contracts where thecontract deliverable is the performanceof a service over any given time period,

contractor performance is oftendefinitively measurable within eachevaluation period. In these cases, allevaluations are final, and the contractorkeeps the fee earned in any periodregardless of the evaluations ofsubsequent periods. Unearned award feein any given period in a service contractis lost and shall not be carried forward,or ‘‘rolled-over,’’ into subsequentperiods.

(b) On other contracts, such as thosefor end item deliverables where the truequality of contractor performancecannot be measured until the end of thecontract, only the last evaluation isfinal. At that point, the total contractaward fee pool is available, and thecontractor’s total performance isevaluated against the award fee plan todetermine total earned award fee. Inaddition, interim evaluations are doneto monitor performance prior to contractcompletion and provide feedback to thecontractor on the Government’sassessment of the quality of itsperformance. Interim evaluations arealso used to establish the basis formaking interim award fee payments.These interim payments are supersededby the fee determination made in thefinal evaluation at contract completion.The Government will then pay thecontractor, or the contractor will refundto the Government, the differencebetween the final award feedetermination and the cumulativeinterim fee payment.

(c) Provisional award fee payments,i.e., payments made within evaluationperiods, may be included in the contractand should be negotiated on a case-by-case basis. The amount of theprovisional award fee payment isdetermined by applying the lesser of theprior period’s interim evaluation score(see 1816.404–275) or 80 percent of thefee allocated to the current period. Theprovisional award fee payments aresuperseded by the fee determinationsmade at the conclusion of each awardfee performance period.

(d) The Fee Determination Official’srating for both interim and finalevaluations will be provided to thecontractor within 45 calendar days ofthe end of the period being evaluated.Any fee, interim or final, due to thecontractor will be paid no later than 60calendar days after the end of the periodbeing evaluated.

1816.404–274 Award fee evaluationfactors.

(a) Explicit evaluation factors shall beestablished for each award fee period.

(b) Evaluation factors will bedeveloped by the contracting officerbased upon the characteristics of an


individual procurement. Normally,technical and schedule considerationswill be included in all CPAF contractsas evaluation factors. Cost control shallbe included as an evaluation factor inall CPAF contracts. When explicitevaluation factor weightings are used,cost control shall be no less than 25percent of the total weighted evaluationfactors. The predominant considerationof the cost control evaluation should bea measurement of the contractor’sperformance against the negotiatedestimated cost of the contract. Thisestimated cost may include the value ofundefinitized change orders whenappropriate.

(c) In rare circumstances, contractcosts may increase for reasons outsidethe contractor’s control and for whichthe contractor is not entitled to anequitable adjustment. One example is aweather-related launch delay on alaunch support contract. TheGovernment shall take such situationsinto consideration when evaluatingcontractor cost control.

(d) Emphasis on cost control shouldbe balanced against other performancerequirement objectives. The contractorshould not be incentivized to pursuecost control to the point that overallperformance is significantly degraded.For example, incentivizing an underrunthat results in direct negative impactson technical performance, safety, orother critical contract objectives is bothundesirable and counterproductive.Therefore, evaluation of cost controlshall conform to the followingguidelines:

(1) Normally, the contractor should begiven a score of 0 for cost control whenthere is a significant overrun within itscontrol. However, the contractor mayreceive higher scores for cost control ifthe overrun is insignificant. Scoresshould decrease sharply as the size ofthe overrun increases. In any evaluationof contractor overrun performance, theGovernment shall consider the reasonsfor the overrun and assess the extentand effectiveness of the contractor’sefforts to control or mitigate theoverrun.

(2) The contractor should normally berewarded for an underrun within itscontrol, up to the maximum scoreallocated for cost control, provided theaverage numerical rating for all otheraward fee evaluation factors is 81 orgreater (see 1816.404–275). Anunderrun shall be rewarded as if thecontractor has met the estimated cost ofthe contract (see 1816.404–274(d)(3))when the average numerical rating forall other factors is less than 81 butgreater than 60.

(3) The contractor should be rewardedfor meeting the estimated cost of thecontract, but not to the maximum scoreallocated for cost control, to the degreethat the contractor has prudentlymanaged costs while meeting contractrequirements. No award shall be givenin this circumstance unless the averagenumerical rating for all other award feeevaluation factors is 61 or greater.

(e) When an AF arrangement is usedin conjunction with a performancebased contract structure (see 1816.404–270(b)(2)(iii)), the award fee’s costcontrol factor will only apply to asubjective assessment of the contractor’sefforts to control costs and not theactual cost outcome incentivized underthe basic contract type (e.g., CPIF, FPIF).

(f) Only the award fee performanceevaluation factors set forth in theperformance evaluation plan shall beused to determine award fee scores.

(g) The Government may unilaterallymodify the applicable award feeperformance evaluation factors andperformance evaluation areas prior tothe start of an evaluation period. Thecontracting officer shall notify thecontractor in writing of any suchchanges 30 days prior to the start of therelevant evaluation period.

1816.404–275 Award fee evaluationscoring.

(a) A scoring system of 0–100 shall beused for all award fee ratings. Award feeearned is determined by applying thenumerical score to the award fee pool.For example, a score of 85 yields anaward fee of 85 percent of the award feepool. No award fee shall be paid unlessthe total score is 61 or greater.

(b) The following standard adjectivalratings and the associated numericalscores shall be used on all award feecontracts.

(1) Excellent (100–91): Of exceptionalmerit; exemplary performance in atimely, efficient, and economicalmanner; very minor (if any) deficiencieswith no adverse effect on overallperformance.

(2) Very good (90–81): Very effectiveperformance, fully responsive tocontract requirements accomplished ina timely, efficient, and economicalmanner for the most part; only minordeficiencies.

(3) Good (80–71): Effectiveperformance; fully responsive tocontract requirements; reportabledeficiencies, but with little identifiableeffect on overall performance.

(4) Satisfactory (70–61): Meets orslightly exceeds minimum acceptablestandards; adequate results; reportabledeficiencies with identifiable, but not

substantial, effects on overallperformance.

(5) Poor/Unsatisfactory (less than 61):Does not meet minimum acceptablestandards in one or more areas; remedialaction required in one or more areas;deficiencies in one or more areas whichadversely affect overall performance.

(c) As a benchmark for evaluation, inorder to be rated ‘‘Excellent,’’ thecontractor must be under cost, on orahead of schedule, and have providedexcellent technical performance.

(d) A scoring system appropriate forthe circumstances of the individualcontract requirement should bedeveloped. Weighted scoring isrecommended. In this system, eachevaluation factor (e.g., technical,schedule, cost control) is assigned aspecific percentage weighting with thecumulative weightings of all factorstotaling 100. During the award feeevaluation, each factor is scored from 0–100 according to the ratings defined in1816.404–275(b). The numerical scorefor each factor is then multiplied by theweighting for that factor to determinethe weighted score. For example, if thetechnical factor has a weighting of 60percent and the numerical score for thatfactor is 80, the weighted technicalscore is 48 (80×60 percent). Theweighted scores for each evaluationfactor are then added to determine thetotal award fee score.

1816.405 Contract clauses.

1816.405–70 NASA contract clauses.(a) As authorized by FAR 16.405(e),

the contracting officer shall insert theclause at 1852.216–76, Award Fee forService Contracts, in solicitations andcontracts when a cost-plus-award-feecontract is contemplated and thecontract deliverable is the performanceof a service. When provisional award feepayments are authorized, use AlternateI.

(b) As authorized by FAR 16.405(e),the contracting officer shall insert theclause at 1852.216–77, Award Fee forEnd Item Contracts, in solicitations andcontracts when a cost-plus-award-feecontract is contemplated and thecontract deliverables are hardware orother end items for which totalcontractor performance cannot bemeasured until the end of the contract.

(c) The contracting officer may inserta clause substantially as stated at1852.216–83, Fixed Price Incentive, infixed-price-incentive solicitations andcontracts utilizing firm or successivetargets. For items subject to incentiveprice revision, identify the target cost,target profit, target price, and ceilingprice for each item.


(d) The contracting officer shall insertthe clause at 1852.216–84, EstimatedCost and Incentive Fee, in cost-plus-incentive-fee solicitations and contracts.

(e) The contracting officer may insertthe clause at 1852.216–85, EstimatedCost and Award Fee, in cost-plus-award-fee solicitations and contracts.When the contract includesperformance incentives, use Alternate I.

(f) As provided at 1816.402–270, thecontracting officer shall insert a clausesubstantially as stated at 1852.216–88,Performance Incentive, when theprimary deliverable(s) is (are) hardwareand total estimated cost and fee isgreater than $25 million. A clausesubstantially as stated at 1852.216–88may be included in lower dollar valuehardware contracts with the approval ofthe procurement officer.

Subpart 1816.5—Indefinite-DeliveryContracts

1816.504 Indefinite quantity contracts.(NASA supplements paragraph (a))

(a)(4)(ii) ID/IQ service contract valuesand task order values shall be expressedonly in dollars.

1816.505 Ordering. (NASA supplementsparagraphs (a) and (b))

(a)(2) Task and delivery orders shallbe issued by the contracting officer.

(b)(4) The Agency and installationombudsmen designated in accordancewith 1815.70 shall review complaintsfrom contractors on task order contractsand delivery order contracts.

1816.505–70 Task ordering.(a) The contracting officer shall, to the

maximum extent possible, state taskorder requirements in terms of functionsand the related performance and qualitystandards such that the standards maybe objectively measured.

(b) To the maximum extent possible,contracting officers shall solicitcontractor task plans to use as the basisfor finalizing task order requirementsand enable evaluation and pricing of thecontractor’s proposed work on aperformance based approach asdescribed in 1816.404–270(a).

(c) Task order contract type shall beindividually determined, based on thenature of each task order’s requirements.

(1) Task orders may be grouped bycontract type for administrativeconvenience (e.g., all CPIF orders, allFFP orders, etc.) for contractor progressand cost reporting.

(2) Under multiple awards,solicitations for individual task plansshall request the same pricing structurefrom all offerors.

(d) Any undefinitized task orderissued under paragraph (f) of the clause

at 1852.216–80, Task OrderingProcedure, shall be treated and reportedas an undefinitized contract action inaccordance with 1843–70.

1816.506–70 NASA contract clause.Insert the clause at 1852.216–80, Task

Ordering Procedure, in solicitations andcontracts when an indefinite-delivery,task order contract is contemplated. Theclause is applicable to both fixed-priceand cost-reimbursement type contracts.If the contract does not require 533Mreporting (See NHB 9501.2), use theclause with its Alternate I.

Subpart 1816.6—Time-and-Materials,Labor-Hour, and Letter Contracts

1816.603 Letter contracts.

1816.603–370 Approvals.(a) All requests for authority to issue

a letter contract shall include thefollowing:

(1) Proposed contractor’s name andaddress.

(2) Location where contract is to beperformed.

(3) Contract number, includingmodification number, if applicable.

(4) Brief description of the work orservices to be performed.

(5) Performance period or deliveryschedule.

(6) Amount of letter contract.(7) Performance period of letter

contract.(8) Estimated total amount of

definitive contract.(9) Type of definitive contract to be

executed.(10) A statement that the definitive

contract will contain all requiredclauses or identification of specificclause deviations that have beenapproved.

(11) A statement as to the necessityand advantage to the Government of theproposed letter contract.

(12) The definitization scheduledescribed in FAR 16.603–2(c) expectedto be negotiated with the contractor.

(b) Requests for authority to issueletter contracts having an estimateddefinitive contract amount equal to orgreater than the Master Buy Plansubmission thresholds of 1807.7101 (ormodifications thereto) shall be signed bythe procurement officer and submittedto the Associate Administrator forProcurement (Code HS) for approval.

(c) Authority to approve the issuanceof letter contracts below the Master BuyPlan submission thresholds specified in1807.7101 is delegated to theprocurement officer.

(d) Any modification of anundefinitized letter contract approvedby a procurement officer in accordance

with paragraph (c) of this section thatincreases the estimated definitizedcontract amount to or above the MasterBuy Plan submission thresholds musthave the prior approval of the AssociateAdministrator for Procurement (CodeHS).

PART 1852—SOLICITATIONPROVISIONS AND CONTRACTCLAUSES



1852.215–73, 1852.215–74, 1852.215–75[Revised]

5–6. Sections 1852.215–73, 1852.215–74 and 1852.215–75 are revised to readas follows:

1852.215–73 Late Submissions,Modifications, and Withdrawals ofProposals (AO, SBIR, and STTR Programs).

As prescribed in 1815.407–70(a),insert the following provision:Late Submissions, Modifications, andWithdrawals of Proposals (AO, SBIR, andSTTR Programs)

(October 1996)(a) The Government reserves the right to

consider proposals or modifications,including any revision of an otherwisesuccessful proposal, received after the dateindicated for receipt of proposals if it wouldbe in the Government’s best interest to do so.

(b) Proposals may be withdrawn by writtennotice of telegram (Including mailgram)received at any time before award. Proposalsmaybe withdrawn in person by an offeror oran authorized representative, if therepresentative’s identity is made known andthe representative signs a receipt for theproposal before award.(End of provision)

1852.215–74 Alternate Proposals.As prescribed in 1815.407–70(b),

insert the following provision:Alternate Proposals

(October 1996)(A) The offeror may submit an alternate

proposal to accomplish any aspect of theeffort or product contemplated by thesolicitation in a manner that might create abeneficial improvement to the Government.The Government will consider an alternateproposal if it is accompanied by a basicproposal prepared in accordance withinstructions contained in this solicitation.The alternate proposal must be complete byitself and comply with the proposalinstructions of this solicitation. The alternateproposal will be evaluated in accordancewith the evaluation factors of thissolicitation.

(b) In the event the Government receives analternate proposal that, it accepted, wouldresult in a contract with terms varying in oneor more material respects from those


contained in this solicitation, and theGovernment concludes that implementationof the approach contained in the alternateproposal would be in its best interest, theGovernment may modify its solicitation in amanner appropriate the incorporate thechanges but not reveal the substance of thealternate proposal, and thereafter give allofferors (and others if the facts warrant) anopportunity to respond to the modifiedsolicitation.(End of provision)

1852.215–75 Expenses Related to OfferorSubmissions.

As prescribed in 1815.407–70(c),insert the following provision:Expenses Related to Offeror Submissions

(December 1988)This solicitation neither commits the

Government to pay any cost incurred in thesubmission of the offer or in makingnecessary studies or designs for preparing theoffer, nor to contract for services or supplies.Any costs incurred in anticipation of acontract shall be at the offeror’s own risk.(End of provision)

1852.215–77, 1852.215–78, 1852.215–79[Revised]

7.–8. Sections 1852.215–77,1852.215–78 and 1852.215–79 arerevised to read as follows:

1852.215–77 Preproposal/Pre-bidConference.

As prescribed in 1815.407–70(d),insert the following provision:Preproposal/Pre-Bid Conference

(December 1988)(a) A preproposal/pre-bid conference will

be held as indicated below:Date:Time:Location:Other Information, as applicable:[Insert the applicable conference

information.](b) Attendance at the preproposal/pre-bid

conference is recommended; however,attendance is neither required nor aprerequisite for proposal/bid submission andwill not be considered in the evaluation.(End of provision)

1852.215–78 Make or Buy ProgramRequirements.

As prescribed in 1815.708–70(a),insert the following provision:Make or Buy Program Requirements

(December 1988)The offeror shall submit a Make-or-Buy

Program in accordance with the requirementsof Federal Acquisition Regulation (FAR)15.705. The offeror shall include thefollowing supporting documentation with itsproposal:

(a) A description of each major item orwork effort (see FAR 15.704).

(b) Categorization of each major item orwork effort as ‘‘must make,’’ ‘‘must buy,’’ or‘‘can either make or buy.’’

(c) For each item or work effort categorizedas ‘‘can either make or buy,’’ a proposaleither to ‘‘make’’ or ‘‘buy.’’

(d) Reasons for (i) categorizing items andwork effort as ‘‘must make’’ or ‘‘must buy’’and (ii) proposing to ‘‘make’’ or ‘‘buy’’ thosecategorized as ‘‘can either make or buy.’’ Thereasons must include the consideration givento the applicable evaluation factors describedin the solicitation and be in sufficient detailto permit the Contracting Officer to evaluatethe categorization and proposal.

(e) Designation of the offeror’s plant ordivision proposed to make each item orperform each work effort and a statement asto whether the existing or proposed newfacility is in or near a labor surplus area.

(f) Identification of proposedsubcontractors, if known, and their locationand size status.

(g) Any recommendations to defer make-or-buy decisions when categorization of someitems or work efforts is impracticable at thetime of submission.(End of provision)

1852.215–79 Price Adjustment for ‘‘Make-or-Buy’’ Changes.

As prescribed in 1815.708–70(b),insert the following clause:Price Adjustment for ‘‘Make-or-Buy’’ Changes

(December 1988)The following make-or-buy items are

subject to the provisions of paragraph (d) ofthe clause at FAR 52.215–21, Change orAdditions to Make-or-Buy Program, of thiscontract:

Item Descrip-tion

Make-or-BuyDetermina-

tion

(End of clause)

1852.215–81, 1852.215–82 [Revised]9. Section 1852.215–81 and 1852–

215–82 are revised to read as follows:

1852.215–81 Proposal Page Limitations.As prescribed in 1815.407–70(g),

insert the following provision:Proposal Page Limitations

(January 1994)(a) The following page limitations are

established for each portion of the proposalsubmitted in response to this solicitation.

Proposed Section(List each volume or

section)Page Limit (Specify

limit)

lllllllll llllllllllllllllll llllllllllllllllll llllllllllllllllll lllllllll

(b) A page is defined as one side of sheet,81⁄2’’ x 11’’, with at least one inch marginson all sides, using not smaller than 12characters per inch (or equivalent) type.

Foldouts count as an equivalent number of81⁄2’’ x 11’’ pages. The metric standard formatmost closely approximating the describedstandard 81⁄2’’ x 11’’ size may also be used.

(c) Title pages and tables of contents areexcluded from the page counts specified inparagraph (a) of this provision. In addition,the Cost section of your proposal is not pagelimited. However, this section is to be strictlylimited to cost and price information.Information that can be construed asbelonging in one of the other sections of theproposal will be so construed and countedagainst that section’s page limitation.

(d) If Best and Final Offers (BAFOs) arerequested, separate page limitations will bespecified in the Government’s request for thatsubmission.

(e) Pages submitted in excess of thelimitations specified in this provision willnot be evaluated by the Government and willbe returned to the offeror.(End of provision)

1852.215–82 Offeror oral presentations.

As prescribed in 1815.407–70(h),insert the following provision:Offeror Oral Presentations

(November 1993)(a) Offerors are invited to give an oral

presentation to the Government on thestructure and general content of theirproposals. These presentations are intendedto assist Government evaluation by providinga ‘‘roadmap’’ to understanding proposals, i.e.,an overview of the proposal organization andlayout, and where required information andelements are located. Although the offeror’sbasic approach to satisfying solicitationrequirements may be explained, it is to bedone so only in general terms and only toexpedite the Government’s formal evaluation.

(b) The Government will not engage in anydiscussions during the oral presentation, andno proposal revisions will be accepted as partof the presentation. The Government’sevaluation of offeror proposals will be basedon the contents of the initial proposal, andany information not included in the initialproposal that is provided at the oralpresentation will not be evaluated.

(c) Offerors should indicate in theirproposals if they wish to give an oralpresentation. These presentations are notmandatory, and electing not to give apresentation will not, in itself, affect proposalevaluation.

(d) Because the presentations are intendedto assist the Government’s evaluation, theywill be scheduled to take place prior tocommencement of the formal initialevaluation, normally within three days afterproposal receipt. Offerors unable toaccommodate this schedule forfeit theiropportunity to provide a presentation.

(e) The presentations will consist of anofferor briefing not to exceed [insert 1 or 2]hours to be followed by a question andanswer period. The order of offerorpresentations will be determined at random.The exact time and place of the presentation,along with any other guidance, will beprovided to the offeror by the contractingofficer or his/her representative.


(f) Presentation materials are not required,but if used, the Government will retain onecopy in its official file as a historical recordof the presentation even though thesematerials will not be used in theGovernment’s evaluation process.(End of provision)

1852.215–84 [Revised]10.–11. Section 1852.215–84 is

revised to read as follows:

1852.215–84 Ombudsman.As prescribed in 1815.7003, insert the

following clause:Ombudsman

(October 1996)An ombudsman has been appointed to hear

and facilitate the resolution of concerns fromofferors, potential offerors, and contractorsduring the preaward and postaward phases ofthis acquisition. When requested, theombudsman will maintain strictconfidentiality as to the source of theconcern. The existence of the ombudsman isnot to diminish the authority of thecontracting officer, the Source EvaluationBoard, or the selection official. Further, theombudsman does not participate in theevaluation of proposals, the source selectionprocess, or the adjudication of formalcontract disputes. Therefore, beforeconsulting with an ombudsman, interestedparties must first address their concerns,issues, disagreements, and/orrecommendations to the contracting officerfor resolution. If resolution cannot be madeby the contracting officer, interested partiesmay contact the installation ombudsman,[Insert name], at lllll [Insert telephonenumber]. Concerns, issues, disagreements,and recommendations which cannot beresolved at the installation may be referred tothe NASA ombudsman, the DeputyAdministrator for Procurement, at 202–358–2090. Please do not contact the ombudsmanto request copies of the solicitation, verifyoffer due date, or clarify technicalrequirements. Such inquiries shall bedirected to the contracting officer or asspecified elsewhere in this document.(End of clause)

1852.216–73, 1852.216–74, 1852.216–75,1852.216–76, 1852.216–77, 1852.216–78[Revised]

12.–13. Sections 1852.216–73,1852.216–74, 1852.216–75, 1852.216–76, 1852.216–77 and 1852.216–78 arerevised to read as follows:

1852.216–73 Estimated Cost and CostSharing.

As prescribed in 1816.307–70(a),insert the following clause:Estimated Cost and Cost Sharing

(December 1991)(a) It is estimated that the total cost of

performing the work under this contract willbe $lllll.

(b) For performance of the work under thiscontract, the Contractor shall be reimbursed

for not more than lll percent of the costsof performance determined to be allowableunder the Allowable Cost and Paymentclause. The remaining lll percent or moreof the costs of performance so determinedshall constitute the Contractor’s share, forwhich it will not be reimbursed by theGovernment.

(c) For purposes of the lllllll[insert ‘‘Limitation of Cost’’ or ‘‘Limitation ofFunds’’] clause, the total estimated cost to theGovernment is hereby established as$llll (insert estimated Governmentshare); this amount is the maximumGovernment liability.

(d) The Contractor shall maintain recordsof all contract costs claimed by theContractor as constituting part of its share.Those records shall be subject to audit by theGovernment. Costs contributed by theContractor shall not be charged to theGovernment under any other grant, contract,or agreement (including allocation to othergrants, contracts, or agreements as part of anindependent research and developmentprogram).(End of clause)

1852.216–74 Estimated Cost and FixedFee.

As prescribed in 1816.307–70(b),insert the following clause:Estimated Cost and Fixed Fee

(December 1991)The estimated cost of this contract is

llllll exclusive of the fixed fee ofllllll. The total estimated cost andfixed fee is llllll.(End of clause)

1852.216–75 Payment of Fixed Fee.As prescribed in 1816.307–70(c),

insert the following clause:Payment of Fixed Fee

(December 1988)The fixed fee shall be paid in monthly

installments based upon the percentage ofcompletion of work as determined by theContracting Officer.(End of clause)

1852.216–76 Award Fee for ServiceContracts.

As prescribed in 1816.405–70(a),insert the following clause:Award Fee for Service Contracts

(October 1996)(a) The contractor can earn award fee from

a minimum of zero dollars to the maximumstated in NASA FAR Supplement clause1852.216–85, ‘‘Estimated Cost and AwardFee’’ in this contract.

(b) Beginning 6* months after the effectivedate of this contract, the Government shallevaluate the Contractor’s performance every6* months to determine the amount of awardfee earned by the contractor during theperiod. The Contractor may submit a self-evaluation of performance for eachevaluation period under consideration. Theseself-evaluations will be considered by the

Government in its evaluation. TheGovernment’s Fee Determination Official(FDO) will determine the award fee amountsbased on the Contractor’s performance inaccordance with [identify performanceevaluation plan]. The plan may be revisedunilaterally by the Government prior to thebeginning of any rating period to redirectemphasis.

(c) The Government will advise theContractor in writing of the evaluationresults. The [insert payment office] will makepayment based on [Insert method ofauthorizing award fee payment, e.g., issuanceof unilateral modification by contractingofficer].

(d) After 85 percent of the potential awardfee has been paid, the Contracting Officermay direct the withholding of furtherpayment of award fee until a reserve is setaside in an amount that the ContractingOffice considers necessary to protect theGovernment’s interest. This reserve shall notexceed 15 percent of the total potential awardfee.

(e) The amount of award fee which can beawarded in each evaluation period is limitedto the amounts set forth at [identify locationof award fee amounts]. Award fee which isnot earned in an evaluation period cannot bereallocated to future evaluation periods.

(f) Award fee determinations made by theGovernment under this contract are notsubject to the Disputes clause.*[A period of time greater or lesser than 6months may be substituted in accordancewith 1816.404–272(a).]Alternate I

(October 1996)As prescribed in 1816.405–70(a), insert the

following paragraph (f) and reletter existingparagraph (f) to (g):

(f)(1) Pending a determination of theamount of award fee earned for an evaluationperiod, a portion of the available award feefor that period will be paid to the contractoron a [Insert the frequency of provisionalpayments (not more often than monthly)]basis. The portion paid will be llllll[Insert percentage (not to exceed 80 percent)]percent of the current period’s availableamount or the equivalent of the prior period’sinterim fee, whichever is lower; provided,however, that when the Contracting Officerdetermines that the Contractor will notachieve a level of performance commensuratewith the provisional rate, payment ofprovisional award fee will be discontinued orreduced in such amounts as the ContractingOfficer deems appropriate. The ContractingOfficer will notify the Contractor in writingif it is determined that such discontinuanceor reduction is appropriate. Thisdetermination is not subject to the Disputesclause.

(2) In the event the amount of award feeearned, as determined by the FDO, is lessthan the sum of the provisional paymentsmade for that period, the Contractor willeither credit the next payment voucher forthe amount of such overpayment or refundthe difference to the Government, as directedby the Contracting Officer.

(3) Provisional award fee payments will[insert ‘‘not’’ if appropriate] be made prior to


the first award fee determination by theGovernment.(End of clause)

1852.216–77 Award Fee for End ItemContracts.

As prescribed in 1816.405–70(b),insert the following clause:Award Fee for End Item Contracts

(Insert Month of Publication)(a) The contractor can earn award fee, or

base fee, if any, from a minimum of zerodollars to the maximum stated in NASA FARSupplement clause 1852.216–85, ‘‘EstimatedCost and Award Fee’’ in this contract. Allaward fee evaluations, with the exception ofthe last evaluation, will be interimevaluations. At the last evaluation, which isfinal, the Contractor’s performance for theentire contract will be evaluated to determinetotal earned award fee. No award fee or basefee will be paid to the Contractor if the finalaward fee evaluation is ‘‘poor/unsatisfactory.’’

(b) Beginning 6* months after the effectivedate of this contract, the Government willevaluate the Contractor’s interimperformance every 6* months to monitorContractor performance prior to contractcompletion and to provide feedback to theContractor. The evaluation will be performedin accordance with [identify performanceevaluation plan] to this contract. TheContractor may submit a self-evaluation ofperformance for each period underconsideration. These self-evaluations will beconsidered by the Government in itsevaluation. The Government will advise theContractor in writing of the evaluationresults. The plan may be revised unilaterallyby the Government prior to the beginning ofany rating period to redirect emphasis.

(c)(1) Base fee, if applicable, will be paidin [Insert ‘‘monthly’’, or less frequent period]installments based on the percent ofcompletion of the work as determined by theContracting Officer.

(2) Interim award fee payments will bemade to the Contractor based on each interimevaluation. The amount of the interim awardfee payment is limited to the lesser of theinterim evaluation score or 80 percent of thefee allocation to that period less anyprovisional payments made during theperiod. All interim award fee payments willbe superseded by the final award feedetermination.

(3) Provisional award fee payments will[insert ‘‘not’’ if applicable] be made underthis contract pending each interimevaluation. If applicable, provisional awardfee payments will be made to the Contractoron a [insert the frequency of provisionalpayments (not more often than monthly)]basis. The amount of award fee which willbe provisionally paid in each evaluationperiod is limited to [Insert a percent not toexceed 80 percent] of the prior interimevaluation score (see [insert applicable cite]).Provisional award fee payments made eachevaluation period will be superseded by theinterim award fee evaluation for that period.If provisional payments made exceed theinterim evaluation score, the Contractor will

either credit the next payment voucher forthe amount of such overpayment or refundthe difference to the Government, as directedby the Contracting Officer. If the Governmentdetermines that (i) the total amount ofprovisional fee payments will apparentlysubstantially exceed the anticipated finalevaluation score, or (ii) the prior interimevaluation is ‘‘poor/unsatisfactory,’’ theContracting Officer will direct the suspensionor reduction of the future payments and/orrequest a prompt refund of excess paymentsas appropriate. Written notification of thedetermination will be provided to theContractor with a copy to the Deputy ChiefFinancial Officer (Finance). Thisdetermination is not subject to the Disputesclause.

(4) All interim (and provisional, ifapplicable) fee payments will be supersededby the fee determination made in the finalaward fee evaluation. The Government willthen pay the Contractor, or the Contractorwill refund to the Government the differencebetween the final award fee determinationand the cumulative interim (and provisional,if applicable) fee payments. If the final awardfee evaluation is ‘‘poor/unsatisfactory’’, anybase fee paid will be refunded to theGovernment.

(5) Payment of base fee, if applicable, willbe made based on submission of an invoiceby the Contractor. Payment of award fee willbe made by the [insert payment office] basedon [Insert method of making award feepayment, e.g., issuance of a unilateralmodification by the Contracting Officer].

(d) Award fee determinations made by theGovernment under this contract are notsubject to the Disputes clause.* [A period of time greater or lesser than 6months may be substituted in accordancewith 1816.404–272(a).](End of clause)

1852.216–78 Firm Fixed Price.As prescribed in 1816.202–70, insert

the following clause:Firm Fixed Price

(December 1988)The total firm fixed price of this contract

is $ [Insert the appropriate amount].(End of clause)

1852.216–80, 1852.216–81 [Revised]14.–15. Sections 1852.216–80 and

1852.216–81 are revised to read asfollows:

1852.216–80 Task Ordering Procedure.As prescribed in 1816.506–70, insert

the following clause:Task Ordering Procedures

(October 1996)(a) Only the Contracting Officer may issue

task orders to the Contractor, providingspecific authorization or direction to performwork within the scope of the contract and asspecified in the schedule. The Contractormay incur costs under this contract inperformance of task orders and task ordermodifications issued in accordance with this

clause. No other costs are authorized unlessotherwise specified in the contract orexpressly authorized by the ContractingOfficer.

(b) Prior to issuing a task order, theContracting Officer shall provide theContractor with the following date:

(1) A functional description of the workidentifying the objectives or results desiredfrom the contemplated task order.

(2) Proposed performance standards to beused as criteria for determining whether thework requirements have been met.

(3) A request for a task plan from theContractor to include the technical approach,period of performance, appropriate costinformation, and any other informationrequired to determine the reasonableness ofthe Contractor’s proposal.

(c) Within ll calendar days after receiptof the Contracting Officer’s request, theContractor shall submit a task planconforming to the request.

(d) After review and any necessarydiscussions, the Contracting Officer mayissue a task order to the Contractorcontaining, as a minimum, the following:

(1) Date of the order.(2) Contract number and order number.(3) Functional description of the work

identifying the objectives or results desiredfrom the task order, including specialinstructions or other information necessaryfor performance of the task.

(4) Performance standards, and whereappropriate, quality assurance standards.

(5) Maximum dollar amount authorized(cost and fee or price). This includesallocation of award fee among award feeperiods, if applicable.

(6) Any other resources (travel, materials,equipment, facilities, etc.) authorized.

(7) Delivery/performance scheduleincluding start and end dates.

(8) If contract funding is by individual taskorder, accounting and appropriation data.

(e) The Contractor shall provideacknowledgement of receipt to theContracting Officer within ll calendar daysafter receipt of the task order.

(f) If time constraints do not permitissuance of a fully defined task order inaccordance with the procedures described inparagraphs (a) through (d), a task order whichincludes a ceiling price may be issued.

(g) The Contracting officer may amendtasks in the same manner in which they areissued.

(h) In the event of a conflict between therequirements of the task order and theContractor’s approved task plan, the taskorder shall prevail.(End of clause)

Alternate I

(October 1996)As prescribed in 1816.506–70, insert the

following paragraph (i) if the contract doesnot include 533M reporting:

(i) Contractor shall submit monthly taskorder progress reports. As a minimum, thereports shall contain the followinginformation:

(1) Contract number, task order number,and date of the order.


(2) Task ceiling price.(3) Cost and hours incurred to date for each

issued task.(4) Costs and hours estimated to complete

each issued task.(5) Significant issues/problems associated

with a task.(6) Cost summary of the status of all tasks

issued under the contract.

1852.216–81 Estimated Cost.As prescribed in 1816.307–70(d),

insert the following clause:Estimated cost

(December 1988)The total estimated cost for complete

performance of this contract is $ [Inserttotal estimated cost of the contract]. See FARclause 52.216–11, Cost Contract—No Fee, ofthis contract.(End of clause)

1852.216–83, 1852.216–84, 1852.216–85[Revised]

16.–17. Sections 1852.216–83,1852.216–84 and 1852.216–85 arerevised to read as follows:

1852.216–83 Fixed Price Incentive.As prescribed in 1816.405–70(c),

insert the following clause:Fixed Price Incentive

(October 1996)The target cost of this contract is $lll.

The Target profit of this contract is $lll.The target price (target cost plus target profit)of this contract is $lll. [The ceiling priceis $lll.]

The cost sharing for target cost underrunsis: Government lllpercent; Contractorlllpercent.

The cost sharing for target cost overruns is:Government lllpercent; Contractorlllpercent.(End of clause)

1852.216–84 Estimated Cost and IncentiveFee.

As prescribed in 1816.405–70(d),insert the following clause:Estimated Cost and Incentive Fee

(October 1996)The target cost of this contract is $lll.

The target fee of this contract is $lll. Thetotal target cost and target fee ascontemplated by the Incentive Fee clause ofthis contract are $lll.

The maximum fee is $lll.The minimum fee is $lll.The cost sharing for cost underruns is:

Government lllpercent; Contractorlllpercent.

The cost sharing for cost overruns is:Government lllpercent; Contractorlllpercent.(End of clause)

1852.216–85 Estimated Cost and AwardFee.

As prescribed in 1816.405–70(e),insert the following clause:

Estimated Cost and Award Fee

(September 1993)The estimated cost of this contract is

$lll. The maximum available award fee,excluding base fee, if any, is $lll. Thebase fee is $lll. Total estimated cost, basefee, and maximum award fee are $lll.(End of clause)

Alternate I

(September 1993)As prescribed in 1816.405–70(e), insert the

following sentence at the end of the clause:The maximum positive performance

incentive is $lll. The maximum negativeperformance incentive is (1).

(1) For research development hardwarecontracts, insert [equal to total earned awardfee (including any base fee)]. For productionhardware contracts, insert [$total potentialaward fee amount, including any base fee)].

(End of clause)

1852.216–87, 1852.216–88, 1852.216–89[Revised]

18–19. Sections 1852.216–87,1852.216–88 and 1852.216–89 arerevised to read as follows:

1852.216–87 Submission of Vouchers forPayment.

As prescribed in 1816.307–70(e),insert the following clause:Submission of Vouchers for Payment

(December 1988)(a) Public vouchers for payment of costs

shall include a reference to this contract[Insert the contract number] and beforwarded to:

[Insert the mailing address for submissionof cost vouchers.]

This is the designated billing office for costvouchers for purposes of the Prompt Paymentclause of this contract.

(b) The Contractor shall prepare vouchersas follows:

(1) One original Standard Form (SF) 1034,SF 1035, or equivalent Contractor’sattachment.

(2) Seven copies of SF 1034A, SF 1035A,or equivalent Contractor’s attachment.

(3) The Contractor shall mark SF 1034Acopies 1, 2, 3, 4, and such other copies asmay be directed by the Contracting Officer byinsertion in the memorandum block thenames and addresses as follows:

(i) Copy 1 NASA Contracting Officer;(ii) Copy 2 Auditor;(iii) Copy 3 Contractor;(iv) Copy 4 Contract administration office;

and(v) Copy 5 Project management office.(c) Public vouchers for payment of fee shall

be prepared similarly and be forwarded to:[Insert the mailing address for submission

of fee vouchers.]This is the designated billing office for fee

vouchers for purposes of the Prompt Paymentclause of this contract.

(d) In the event that amounts are withheldfrom payment in accordance with provisionsof this contract, a separate voucher for the

amount withheld will be required beforepayment for that amount may be made.

1852.216–88 Performance Incentive.As prescribed in 1816.405–70(f),

insert the following clause:Performance Incentive

(January 1997)(a) A performance incentive applies to the

following hardware item(s) delivered underthis contract: (1).

The performance incentive will measurethe performance of those items against thesalient hardware performance requirement,called ‘‘unit(s) of measurement,’’ e.g., monthsin service or amount of data transmitted,identified below. The performance incentivebecomes effective when the hardware is putinto service. It includes a standardperformance level, a positive incentive, anda negative incentive, which are described inthis clause.

(b) Standard performance level. At thestandard performance level, the Contractorhas met the contract requirement for the unitof measurement. Neither positive nornegative incentives apply when this level isachieved but not exceeded. The standardperformance level for (1) ll is establishedas follows: (2).

(c) Positive incentive. The Contractor earnsa separate positive incentive amount for eachhardware item listed in paragraph (a) of thisclause when the standard performance levelfor that item is exceeded. The amount earnedfor each item varies with the units ofmeasurement achieved, up to a maximumpositive performance incentive amount of$ (3) ll per item. The units of measurementand the incentive amounts associated withachieving each unit are shown below: (4).

(d) Negative incentive. The Contractor willpay to the Government a negative incentiveamount for each hardware item that fails toachieve the standard performance level. Theamount to be paid for each item varies withthe units of measurement achieved, up to themaximum negative incentive amount of$ (5) ll. The units of measurement and theincentive amounts associated with achievingeach unit are shown below: (6).

(e) The final calculation of positive ornegative performance incentive amountsshall be done when performance (as definedby the unit of measurement) ceases or whenthe maximum positive incentive is reached.

(1) When the Contracting Officerdetermines that the performance levelachieved fell below the standard performancelevel, the Contractor will either pay theamount due the Government or credit thenext payment voucher for the amount due, asdirected by the Contracting Officer.

(2) When the performance level exceedsthe standard level, the Contractor mayrequest payment of the incentive amountassociated with a given level of performance,provided that such payments shall not bemore frequent than monthly. Whenperformance ceases or the maximum positiveincentive is reached, the Government shallcalculate the final performance incentiveearned and unpaid and promptly remit it tothe contractor.

(f) If performance cannot be demonstrated,through no fault of the Contractor, within


[insert number of months or years] after thedate of hardware acceptance by theGovernment, the Contractor will be paid[insert percentage] of the maximumperformance incentive.

(g) The decisions made as to the amount(s)of positive or negative incentives are subjectto the Disputes clause.

(1) Insert applicable item number(s) and/ornomenclature.

(2) Insert a specific unit of measurementfor each hardware item listed in (1) and eachsalient characteristic, if more than one.

(3) Insert the maximum positiveperformance incentive amount (see1816.402–270(e) (1) and (2)).

(4) Insert all units of measurement andassociated dollar amounts up to themaximum performance incentive.

(5) Insert the appropriate amount inaccordance with 1816.402–270(e).

(6) Insert all units of measurement andassociated dollar amounts up to themaximum negative performance incentive.(End of clause)

1852.216–89 Assignment and releaseforms.

As prescribed at 1816.307–70(f),insert the following clause:Assignment and Release Forms

(October 1996)The Contractor shall use the following

forms to fulfill the assignment and releaserequirements of FAR Clause 52.216–7,Allowable Cost and Payment, and FARClause 52.216–13, Allowable Cost andPayment (Facilities):NASA Form 778, Contractor’s ReleaseNASA Form 779, Assignee’s ReleaseNASA Form 780, Contractor’s Assignment of

Refunds, Rebates, Credits, and OtherAmounts

Computer generated forms are acceptable,provided that they comply with FAR Clause52.253–1.(End of clause)[FR Doc. 97–1240 Filed 1–22–97; 8:45 am]BILLING CODE 7510–01–M


Surface Transportation Board

49 CFR Part 1002

[STB Ex Parte No. 542 (Sub-No. 1)]

Regulations Governing Fees ForServices Performed in ConnectionWith Licensing and Related Services—1997 Update

AGENCY: Surface Transportation Board.ACTION: Final rule.

SUMMARY: The Board adopts its 1997User Fee Update and revises its feeschedule at this time to recover the costassociated with the January 1997Government salary increases and

increases in Federal Registerpublication costs.EFFECTIVE DATE: These rule are effectiveon February 24, 1997.FOR FURTHER INFORMATION CONTACT:Kathleen M. King, (202) 927–5249, orDavid T. Groves, (202) 927–6395. [TDDfor the hearing impaired: (202) 927–5721.]SUPPLEMENTARY INFORMATION: TheBoard’s regulations at 49 CFR 1002.3require the Board’s user fee schedule tobe updated annually. The Board’s feesare revised based on the cost studyformula set forth at 49 CFR 1002.3(d).Also, in some previous years, selectedfees were modified to reflect new coststudy data or changes in Board orInterstate Commerce Commission feepolicy.

The Board’s regulations at 49 CFR1002.3(a) provide that the entire feeschedule or selected fees can bemodified more than once a year, ifnecessary. Because Board employeeswill receive a salary increase of 3.33%in January 1997, we are updating ouruser fees to recover our increasedpersonnel cost. This update also reflectsthe increased Federal Registerpublication costs, which becameeffective on January 1, 1997. All feeswill be updated based on our costformula at 49 CFR 1002.3(d).

In Central Power & Light Company v.Southern Pacific TransportationCompany, No. 41242 (STB served Dec.31, 1996), the Board indicated that incertain cases ‘‘bottleneck’’ rate reliefwould be available in connection withthe filing of a competitive accesscomplaint. The Board is adding a newFee Item 56(iv), Competitive accesscomplaints, to cover that activity.

In Class Exem. For The Constructionof Connecting Track, 1 S.T.B. 75 (1996),the Board adopted new regulations at 49CFR 1150.36 that provide for a classexemption for the construction andoperation of connecting railroad track.We are adding new Fee Item 12(ii),Notice of exemption under 49 CFR1150.36, to cover that activity. Also, toconform with other fee items, we areproviding a separate Fee Item 12(iii),Petition for exemption under 49 U.S.C.10502 involving construction of raillines.

Because the Board only recentlyrevised the fees for formal complaints inFee Items 56 (i)–(iii) in the RegulationsGoverning Fees For Services Performedin Connection with Licensing andRelated Services—1996 Update, 61 FR66229 (December 17, 1996), the fees forthose items will remain at currentlevels.

The fee increases involved here resultonly from the mechanical application ofthe update formula at 49 CFR 1002.3(d),that was adopted through notice andcomment procedures in RegulationsGoverning Fees for Services—1987Update, 4 I.C.C.2d 137 (1987).Therefore, we believe that good causeexists for finding that notice andcomment is unnecessary for thisproceeding. See Regulations GoverningFees for Services—1990 Update, 7I.C.C.2d 3 (1990), Regulations GoverningFees for Services—1991 Update, 8I.C.C.2d 13 (1991), and RegulationsGoverning Fees for Services—1993Update, 9 I.C.C.2d 855 (1993).

We conclude that the fee changes,which are being adopted here, will nothave a significant economic impact ona substantial number of small entitiesbecause the Board’s regulations providefor waiver of filing fees for those entitiesthat can make the required showing offinancial hardship.

Additional information is containedin the Board’s decision. To obtain acopy of the full decision, write, call, orpick up in person from DC News & Data,Inc., Room 2229, 1201 ConstitutionAvenue N.W., Washington, DC 20423.Telephone: (202) 289–4357/4359.[Assistance for the hearing impaired isavailable through TDD services (202)927–5721.]

List of Subjects in 49 CFR Part 1002Administrative practice and

procedure, Common carriers, Freedomof information, User fees.

Decided: January 13, 1997.By the Board, Chairman Morgan and Vice-

Chairman Owen.Vernon A. Williams,Secretary.

For the reasons set forth in thepreamble, title 49, chapter X, part 1002,of the Code of Federal Regulations isamended as follows:

PART 1002—FEES


Authority: 5 U.S.C. 552(a)(4)(A) and 553;31 U.S.C. 9701 and 49 U.S.C. 721(a).

2. Section 1002.1 is amended byrevising paragraphs (a), (b), (c), and(e)(1) and the chart in paragraph (f)(6) toread as follows:

§ 1002.1 Fees for records search, review,copying, certification, and related services.

* * * * *(a) Certificate of the Secretary, $10.00.(b) Service involved in examination of

tariffs or schedules for preparation ofcertified copies of tariffs or schedules or


extracts therefrom at the rate of $25.00per hour.

(c) Service involved in checkingrecords to be certified to determineauthenticity, including clerical work,etc., incidental thereto, at the rate of$17.00 per hour.* * * * *

(e) * * *(1) A fee of $44.00 per hour for

professional staff time will be chargedwhen it is required to fulfill a requestfor ADP data.* * * * *

(f) * * *(6) * * *

Grade Rate

GS–1 ................................................. $7.37GS–2 ................................................. 8.02GS–3 ................................................. 9.04GS–4 ................................................. 10.15GS–5 ................................................. 11.35GS–6 ................................................. 12.66GS–7 ................................................. 14.06GS–8 ................................................. 15.58GS–9 ................................................. 17.20GS–10 ............................................... 18.95GS–11 ............................................... 20.82GS–12 ............................................... 24.95GS–13 ............................................... 29.67GS–14 ............................................... 35.06GS–15 and over ............................... 41.24

* * * * *3. In § 1002.2, paragraph (f) is revised

to read as follows:

§ 1002.2 Filing fees.

* * * * *(f) Schedule of filing fees.

Type of proceeding Fee

Part I: Non-Rail Applicationsor Proceedings to EnterUpon a Particular FinancialTransaction or Joint Ar-rangement

(1) An application for the poolingor division of traffic.

$2,600.

(2) An application involving thepurchase, lease, consolidation,merger, or acquisition of con-trol of a motor carrier of pas-sengers under 49 U.S.C.14303.

$1,200.

(3) An application for approval ofa non-rail rate associationagreement. 49 U.S.C. 13706.

$16,500.

(4) An application for approval ofan amendment to a non-railrate association agreement:(i) Significant amendment ....... $2,700.(ii) Minor amendment .............. $60.

(5) An application for temporaryauthority to operate a motorcarrier of passengers. 49U.S.C. 14303(i).

$300.

(6)–(10) [Reserved]


Part II: Rail Licensing Pro-ceedings other than Aban-donment or DiscontinuanceProceedings

(11) (i) An application for a cer-tificate authorizing the exten-sion, acquisition, or operationof lines of railroad. 49 U.S.C.10901.

$4,300.

(ii) Notice of exemption under49 CFR 1150.31–1150.35.

$1,100.

(iii) Petition for exemptionunder 49 U.S.C. 10502.

$7,500.

(12) (i) An application involvingthe construction of a rail line.

$44,500.

(ii) A notice of exemption in-volving construction of a railline under 49 CFR 1150.36.

$1,100.

(iii) A petition for exemptionunder 49 U.S.C. 10502 in-volving construction of a railline.

$44,500.

(13) A Feeder Line DevelopmentProgram application filedunder 49 U.S.C.10907(b)(1)(A)(i) or10907(b)(1)(A)(ii).

$2,600.

(14) (i) An application of a classII or class III carrier to acquirean extended or additional railline under 49 U.S.C. 10902.

$3,700.

(ii) Notice of exemption under49 CFR 1150.41–1150.45.

$1,100.

(iii) Petition for exemptionunder 49 U.S.C. 10502 re-lating to an exemption fromthe provisions of 49 U.S.C.10902.

$3,900.

(15) A notice of a modified cer-tificate of public convenienceand necessity under 49 CFR1150.21–1150.24.

$1,000.


Part III: Rail Abandonment orDiscontinuance of Trans-portation Services Proceed-ings

(21) (i) An application for author-ity to abandon all or a portionof a line of railroad or dis-continue operation thereof filedby a railroad (except applica-tions filed by Consolidated RailCorporation pursuant to theNortheast Rail Service Act[Subtitle E of Title XI of Pub.L. 97–35], bankrupt railroads,or exempt abandonments.

$13,200.

(ii) Notice of an exempt aban-donment or discontinuanceunder 49 CFR 1152.50.

$2,200.

(iii) A petition for exemptionunder 49 U.S.C. 10502.

$3,800.

(22) An application for authorityto abandon all or a portion ofa line of a railroad or operationthereof filed by ConsolidatedRail Corporation pursuant toNortheast Rail Service Act.

$250.

(23) Abandonments filed bybankrupt railroads.

$1,100.


(24) A request for waiver of filingrequirements for abandonmentapplication proceedings.

$1,000.

(25) An offer of financial assist-ance under 49 U.S.C. 10904relating to the purchase of orsubsidy for a rail line proposedfor abandonment.

$900.

(26) A request to set terms andconditions for the sale of orsubsidy for a rail line proposedto be abandoned.

$13,500.

(27) A request for a trail usecondition in an abandonmentproceeding under 16U.S.C.1247(d).

$150.

(28)–(35) [Reserved]Part IV: Rail Applications to

Enter Upon a Particular Fi-nancial Transaction orJoint Arrangement

(36) An application for use of ter-minal facilities or other appli-cations under 49 U.S.C. 11102.

$11,300.

(37) An application for the pool-ing or division of traffic. 49U.S.C. 11322.

$6,100.

(38) An application for two ormore carriers to consolidate ormerge their properties or fran-chises (or a part thereof) intoone corporation for ownership,management, and operation ofthe properties previously inseparate ownership. 49 U.S.C.11324:(i) Major transaction ................ $889,500.(ii) Significant transaction ........ $177,900.(iii) Minor transaction ............... $4,700.(iv) Notice of an exempt trans-

action under 49 CFR1180.2(d).

$1,000.

(v) Responsive application ...... $4,700.(vi) Petition for exemption

under 49 U.S.C. 10502.$5,600.

(39) An application of a non-car-rier to acquire control of two ormore carriers through owner-ship of stock or otherwise. 49U.S.C. 11324:(i) Major transaction ................ $889,500.(ii) Significant transaction ........ $177,900.(iii) Minor transaction ............... $4,700.(iv) A notice of an exempt

transaction under 49 CFR1180.2(d).

$850.


under 49 U.S.C. 10502.$5,600.

(40) An application to acquiretrackage rights over, joint own-ership in, or joint use of anyrailroad lines owned and oper-ated by any other carrier andterminals incidental thereto. 49U.S.C. 11324:(i) Major transaction ................ $889,500.(ii) Significant transaction ........ $177,900.(iii) Minor transaction ............... $4,700.(iv) Notice of an exempt trans-


$750.

(v) Responsive application ...... $4,700.



(vi) Petition for exemptionunder 49 U.S.C. 10502.

$5,600.

(41) An application of a carrier orcarriers to purchase, lease, orcontract to operate the prop-erties of another, or to acquirecontrol of another by purchaseof stock or otherwise. 49U.S.C. 11324:(i) Major transaction ................ $889,500.(ii) Significant transaction ........ $177,900.(iii) Minor transaction ............... $4,700.(iv) Notice of an exempt trans-


$850.


under 49 U.S.C. 10502.$3,900.

(42) Notice of a joint project in-volving relocation of a rail lineunder 49 CFR 1180.2(d)(5).

$1,500.

(43) An application for approvalof a rail rate associationagreement 49 U.S.C. 10706.

$41,600.

(44) An application for approvalof an amendment to a rail rateassociation agreement.

49 U.S.C. 10706:(i) Significant amendment ....... $7,700.(ii) Minor amendment .............. $60.

(45) An application for authorityto hold a position as officer ordirector under 49 U.S.C.11328.

$450.

(46) A petition for exemptionunder 49 U.S.C. 10502 (otherthan a rulemaking) filed by railcarrier not otherwise covered.

$4,800.

(47) National Railroad Pas-senger Corporation (Amtrak)conveyance proceeding under45 U.S.C. 562.

$150.

(48) National Railroad Pas-senger Corporation (Amtrak)compensation proceedingunder Section 402(a) of theRail Passenger Service Act.

$150.


Part V: Formal Proceedings:(56) A formal complaint alleging

unlawful rates or practices ofrail carriers, motor carriers ofpassengers or motor carriersof household goods:(i) A formal complaint filed

under the coal rate guide-lines (Stand-Alone CostMethodology) alleging un-lawful rates and/or practicesof rail carriers under 49U.S.C. 10704(c)(1) except acomplaint filed by smallshipper.

$23,300.

(ii) A formal complaint involv-ing rail maximum rates filedby a small shipper.

$1,000.

(iii) All other formal complaints(except competitive accesscomplaints).

$2,300.

(iv) Competitive access com-plaints.

$150.


(57) A complaint seeking or apetition requesting institutionof an investigation seeking theprescription or division of jointrates or charges. 49 U.S.C.10705.

$5,200.

(58) A petition for declaratoryorder:(i) A petition for declaratory

order involving a disputeover an existing rate orpractice which is com-parable to a complaint pro-ceeding.

$1,000.

(ii) All other petitions for de-claratory order.

$1,400.

(59) An application for shipperantitrust immunity. 49 U.S.C.10706(a)(5)(A).

$4,200.

(60) Labor arbitration proceed-ings.

$150.

(61) Appeals to a Surface Trans-portation Board decision andpetitions to revoke an exemp-tion pursuant to 49 U.S.C.10502(d).

$150.

(62) Motor carrier underchargeproceedings.

$150.

(63)–(75) [Reserved]Part VI: Informal Proceedings

(76) An application for authorityto establish released valuerates or ratings for motor car-riers and freight forwarders ofhousehold goods under 49U.S.C. 14706.

$700.

(77) An application for specialpermission for short notice orthe waiver of other tariff pub-lishing requirements.

$70.

(78) (i) The filing of tariffs, in-cluding supplements, or con-tract summaries.

$1 perpage.($14mini-mumcharge.)

(ii) Tariffs transmitted by fax ... $1 perpage.

(79) Special docket applicationsfrom rail and water carriers:(i) Applications involving

$25,000 or less.$45.

(ii) Applications involving over$25,000.

$90.

(80) Informal complaint about railrate applications.

$350.

(81) Tariff reconciliation petitionsfrom motor common carriers:(i) Petitions involving $25,000

or less.$45.

(ii) Petitions involving over$25,000.

$90.

(82) Request for a determinationof the applicability or reason-ableness of motor carrier ratesunder 49 U.S.C. 13710(a)(2)and (3).

$100.

(83) Filing of documents for rec-ordation. 49 U.S.C. 11301 and49 CFR 1177.3(c).

$24 perdocu-ment.

(84) Informal opinions about rateapplications (all modes).

$150.


(85) A railroad accounting inter-pretation.

$650.

(86) An operational interpretation $850.(87)–(95) [Reserved]

Part VII: Services(96) Messenger delivery of deci-

sion to a railroad carrier’sWashington, DC, agent.

$19 perdelivery.

(97) Request for service orpleading list for proceedings.

$14 perlist.

(98) (i) Processing the paper-work related to a request forthe Carload Waybill Sample tobe used in a Surface Trans-portation Board or State pro-ceeding that does not requirea FEDERAL REGISTER notice.

$150.

(ii) Processing the paperworkrelated to a request for Car-load Waybill Sample to beused for reasons other thana Surface TransportationBoard or State proceedingthat requires a FEDERALREGISTER notice.

$400.

(99) (i) Application fee for theSurface TransportationBoard’s Practitioners’ Exam.

$100.

(ii) Practitioners’ Exam Infor-mation Package.

$25.

(100) Uniform Railroad CostingSystem (URCS) software andinformation:(i) Initial PC version URCS

Phase III software programand manual.

$50.

(ii) Updated URCS PC versionPhase III cost file, if com-puter disk provided by re-questor.

$10.

(iii) Updated URCS PC versionPhase III cost file, if com-puter disk provided by theBoard.

$20.

(iv) Public requests for SourceCodes to the PC versionURCS Phase III.

$500.

(v) PC version or mainframeversion URCS Phase II.

$400.

(vi) PC version or mainframeversion Updated Phase IIdatabases.

$50.

(vii) Public requests for SourceCodes to PC version URCSPhase II.

$1,500.

(101) Carload Waybill Sampledata on recordable compactdisk (R–CD):(i) Requests for Public Use

File on R–CD—First Year.$450.

(ii) Requests for Public UseFile on R–CD Each Addi-tional Year.

$150.

(iii) Waybill—Surface Trans-portation Board or State pro-ceedings on R–CD—FirstYear.

$650.

(iv) Waybill—Surface Trans-portation Board or State pro-ceedings on R–CD—SecondYear on same R–CD.

$450.



(v) Waybill—Surface Transpor-tation Board of State pro-ceeding on R–CD—SecondYear on different R-CD.

$500.

(vi) User Guide for latest avail-able Carload Waybill Sam-ple.

$50.

* * * * *[FR Doc. 97–1613 Filed 1–22–97; 8:45 am]BILLING CODE 4915–00-P

DEPARTMENT OF COMMERCE

National Oceanic and AtmosphericAdministration

50 CFR Part 285

[I.D. 011697B]

Atlantic Tuna Fisheries; FisheryClosure

AGENCY: National Marine FisheriesService (NMFS), National Oceanic andAtmospheric Administration (NOAA),Commerce.ACTION: Closure.

SUMMARY: NMFS has determined thatthe Atlantic bluefin tuna (ABT)

Incidental Other category has attainedits 1997 annual quota. Therefore, theIncidental Other category for 1997 willbe closed.EFFECTIVE DATE: The closure of theIncidental Other category is effective11:30 p.m. local time on January 17,1997, until the effective date of a quotaadjustment, if any, which will bepublished in the Federal Register.FOR FURTHER INFORMATION CONTACT: JohnKelly, 301–713–2347, or Mark Murray-Brown, 508–281–9260.SUPPLEMENTARY INFORMATION:Regulations implemented under theauthority of the Atlantic TunasConvention Act (16 U.S.C. 971 et seq.)governing the harvest of ABT by personsand vessels subject to U.S. jurisdictionare found at 50 CFR part 285. Section285.22 subdivides the U.S. quotarecommended by the InternationalCommission for the Conservation ofAtlantic Tunas among the variousdomestic fishing categories.

NMFS is required, under 285.20(b)(1),to monitor the catch and landingstatistics and, on the basis of thesestatistics, to project a date when thecatch of ABT will equal the quota andpublish a Federal Registerannouncement to close the applicablefishery.

Incidental Other Category Closure

Implementing regulations for theAtlantic tuna fisheries at 50 CFR 285.22provide for a quota of 1 mt of largemedium and giant ABT to be harvestedfrom the regulatory area by vesselsfishing under the Incidental Othercategory quota over the period January1 - December 31. Based on reportedcatch, NMFS has determined that thisquota has been reached; reportedlandings as of January 16, 1997, total1.23 mt. Therefore, retaining,possessing, or landing large medium orgiant ABT under the Incidental Othercategory quota must cease at 11:30 p.m.local time on January 17, 1997, until theeffective date of a quota adjustment, ifany, which will be published in theFederal Register.

Classification

This action is taken under 50 CFR285.20(b) and 50 CFR 285.22 and isexempt from review under E.O. 12866.

Authority: 16 U.S.C. 971 et seq.

Dated: January 16, 1997.Gary C. Matlock,Director, Office of Sustainable Fisheries,National Marine Fisheries Service.[FR Doc. 97–1588 Filed 1–17–97; 2:48 pm]BILLING CODE 3510–22–F

This section of the FEDERAL REGISTERcontains notices to the public of the proposedissuance of rules and regulations. Thepurpose of these notices is to give interestedpersons an opportunity to participate in therule making prior to the adoption of the finalrules.

Proposed Rules Federal Register

3491

Vol. 62, No. 15


DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamationand Enforcement

30 CFR Part 935

[OH–236–FOR]

Ohio Abandoned Mine LandReclamation Plan

AGENCY: Office of Surface MiningReclamation and Enforcement (OSM),Interior.ACTION: Proposed rule; reopening ofpublic comment period.

SUMMARY: OSM is reopening the publiccomment period on a proposedamendment to the Ohio abandonedmine land reclamation plan (hereinafterthe ‘‘Ohio plan’’) under the SurfaceMining Control and Reclamation Act of1977 (SMCRA), 30 U.S.C. 1201 et seq.,as amended. The proposed amendmentwhich was published April 17, 1996 (61FR 16731) consists of changes toprovisions of the Ohio plan pertainingto the acid mine drainage set-asideprogram, water quality improvement,project eligibility, and reminingincentives. The amendment is intendedto revise the Ohio plan to be consistentwith SMCRA, as amended.DATES: Written comments must bereceived by 4:00 p.m., [e.s.t.], February7, 1997.ADDRESSES: Written comments shouldbe mailed or hand delivered to GeorgeRieger, Field Branch Chief, at theaddress listed below.

Copies of the Ohio plan, the proposedamendment, and all written commentsreceived in response to this documentwill be available for public review at theaddress listed below during normalbusiness hours, Monday through Friday,excluding holidays. Each requester mayreceive one free copy of the proposedamendment by contacting OSM’sAppalachian Regional CoordinatingCenter.George Rieger, Field Branch Chief,

Appalachian Regional Coordinating

Center, Office of Surface MiningReclamation and Enforcement, 3Parkway Center, Pittsburgh, PA15220, Telephone: (412) 937–2153

Ohio Division of Mines andReclamation, 1855 Fountain SquareCourt, Columbus, Ohio 43224,Telephone: (614) 265–1076

FOR FURTHER INFORMATION CONTACT:George Rieger, Field Branch Chief,Appalachian Regional CoordinatingCenter, Telephone: (412) 937–2153.


I. Background on the Ohio PlanOn August 10, 1982, the Secretary of

the Interior approved the Ohio plan.Background information on the Ohioplan, including the Secretary’s findings,the disposition of comments, and theconditions of approval can be found inthe April 15, 1994, Federal Register (59FR 17930). Subsequent actionsconcerning the conditions of approvaland program amendments can be foundat 30 CFR 935.25.

II. Description of the ProposedAmendment

By letter dated March 19, 1996,(Administrative Record No. OH–2163)Ohio submitted a proposed amendmentto its program pursuant to SMCRA at itsown initiative. The provisions of theOhio plan that it proposes to amend are:Acid mine drainage set-aside program,water quality improvement, projecteligibility, and remining incentives. Theproposed amendment was announced inthe April 17, 1996, Federal Register (61FR 16731).

By letter dated December 6, 1996(Administrative Record No. OH–2163–12), Ohio submitted revisions to theoriginal amendment. At page 4–2, thefollowing language is inserted, ‘‘toencourage reclamation in conjunctionwith active mining of abandoned areascausing acid mine drainage (AMD)within approved hydrologic units andin other areas causing AMD withinapproved hydrologic units and in otherareas through the funding of AMDremediation projects and studiesnecessary to develop pollution plans.’’At page 4–17, Ohio clarifies thatAMDAT funds are being used to collectand analyze data necessary to qualifywatersheds as hydrologic units. At page4–19, Ohio is revising Stage 5 of theproject selection process to provide forthe reclamation of abandoned mine

areas causing AMD in conjunction withactive mining. Federal abandoned minelands funds may be used to fundreclamation of abandoned mine landscausing AMD under certain conditions.

By letter dated December 20, 1997(Administrative Record No. OH–2163–13), Ohio submitted an additionalrevision. At page 4–19, Ohio proposes todelete the language identified as Stage 5of the project selection process. Thedeletion is based on Ohio’sunderstanding that such language is notnecessary to fulfill its goals andobjectives regarding the use of the acidmine drainage set-aside funds for therestoration of watersheds impacted byacid mine drainage from abandonedcoal mines. Sufficient flexibility existswithin its program to manage the fundsin a manner that will achieve itsobjectives.

III. Public Comment Procedures

In accordance with the provisions of30 CFR 732.17(h), OSM is seekingcomments on whether the proposedamendment satisfies the applicableprogram approval criteria of 30 CFR732.15. Specifically, OSM is seekingcomments on the revisions to the State’sPlan that were submitted on March 19,1996, and revised on December 6 and20, 1996. Comments should addresswhether the proposed amendmentsatisfies the applicable programapproval criteria of 30 CFR 732.15. If theamendment is deemed adequate, it willbecome part of the Ohio Plan.

Written Comments

Written comments should be specific,pertain only to the issues proposed inthis rulemaking, and includeexplanations in support of thecommenter’s recommendations.Comments received after the timeindicated under DATES or at locationsother than the Appalachian RegionalCoordinating Center will not necessarilybe considered in the final rulemaking orincluded in the Administrative Record.

IV. Procedural Determinations

Executive Order 12866

This rule is exempted from review bythe Office of Management and Budget(OMB) under Executive Order 12866(Regulatory Planning and Review).

3492 Federal Register / Vol. 62, No. 15 / Thursday, January 23, 1997 / Proposed Rules

Executive Order 12778

The Department of the Interior hasconducted the reviews required bysection 2 of Executive Order 12778(Civil Justice Reform) and hasdetermined that, to the extent allowedby law, this rule meets the applicablestandards of subsections (a) and (b) ofthat section. However, these standardsare not applicable to the actual languageof State and Tribal abandoned mineland reclamation plans and revisionssince each plan is drafted andpromulgated by a specific State or Tribe,not by OSM. Decisions on proposedabandoned mine land reclamation planssubmitted by a State or Tribe must bebased solely on a determination ofwhether the submittal is consistent withTitle IV of SMCRA (30 U.S.C. 1231–1243) and whether the otherrequirements of 30 CFR Parts 884 and888 have been met.

National Environmental Policy Act

No environmental impact statement isrequired for this rule since section702(d) of SMCRA (30 U.S.C. 1292(d))provides that agency decisions onproposed State regulatory programprovisions do not constitute majorFederal actions within the meaning ofsection 102(2)(C) of the NationalEnvironmental Policy Act (42 U.S.C.4332(2)(C)).

Paperwork Reduction Act

This rule does not containinformation collection requirements thatrequire approval by OMB under thePaperwork Reduction Act (44 U.S.C.3507 et seq.).

Regulatory Flexibility Act

The Department of the Interior hasdetermined that this rule will not havea significant economic impact on asubstantial number of small entitiesunder the Regulatory Flexibility Act (5U.S.C. et seq.). The State submittalwhich is the subject of this rule is basedupon counterpart Federal regulations forwhich an economic analysis wasprepared and certification made thatsuch regulations would not have asignificant economic effect upon asubstantial number of small entities.Accordingly, this rule will ensure thatexisting requirements previouslypromulgated by OSM will beimplemented by the State. In making thedetermination as to whether this rulewould have a significant economicimpact, the Department relied upon thedata and assumptions for thecounterpart Federal regulations.

Unfunded Mandates

This rule will not impose a cost of$100 million or more in any given yearon any governmental entity or theprivate sector.


Intergovernmental relations, Surfacemining, Underground mining.

Dated: January 15, 1997.Ronald C. Recker,Acting Regional Director, AppalachianRegional Coordinating Center.[FR Doc. 97–1600 Filed 1–22–97; 8:45 am]BILLING CODE 4310–05–M


Bureau of Transportation Statistics

49 CFR Ch. XI

Negotiated Rulemaking Committee toRevise the Motor Carrier Financial andOperating Data Collection Program;Meeting and Extension of CommentPeriod on Proposed Establishment

AGENCY: Bureau of TransportationStatistics (BTS), DOT.ACTION: Notice of meeting; extension ofcomment period.

SUMMARY: The Bureau of TransportationStatistics (BTS) has proposed theestablishment of a negotiatedrulemaking advisory committee (theCommittee) to examine the relevantissues and attempt to reach a consensusin developing regulations governing thecollection of financial and operatingdata from motor carriers of property.Before making a final decision onformation of the Committee, BTS willhold a public meeting to help decidewhether a negotiated rulemakingadvisory committee is needed, and, ifso, to help determine the appropriateCommittee membership and issues forconsideration. The meeting will be heldMonday, February 10, 1997, 9:30 am to3:00 pm, Eastern Standard Time. BTS isalso extending the comment period onthe proposal to establish the negotiatedrulemaking committee, on the proposedmembership of the Committee, and onthe proposed issues for consideration bythe Committee. Persons are invited tosubmit applications or nominations formembership on the Committee. Thecomment period is extended to February28, 1997.DATES: Meeting. The meeting will beheld Monday, February 10, 1997, 9:30am to 3:00 pm, Eastern Standard Time.

Comment period. Interested partiesmay file comments and nominations for

committee membership on or beforeFebruary 28, 1997.ADDRESSES: Meeting. The meeting willtake place at the U.S. Department ofTransportation, 400 Seventh Street,SW., Washington, D.C., in conferenceroom 2230 of the Nassif Building. Sinceaccess to the DOT building iscontrolled, all persons who plan toattend the meeting must notify DavidMednick on (202) 366–8871 prior toFebruary 7. Attendance is open to theinterested public but limited to spaceavailable.

Comment period. When sendingcomments and/or nominations, send theoriginal plus three copies. Mail toDocket Clerk, Docket No. BTS–96–1979,Department of Transportation, 400Seventh Street, SW., Room PL–401,Washington, D.C. 20590.Commenters desiring notification ofreceipt of comments must include astamped, self-addressed postcard. TheDocket Clerk will date stamp thepostcard and mail it back to thecommenter.FOR FURTHER INFORMATION CONTACT:David Mednick, Bureau ofTransportation Statistics, K–2, 400Seventh Street, SW., Washington, D.C.20590; by phone at (202) 366–8871; bye-mail at [email protected]; or byFax at (202) 366–3640.


BackgroundUnder Section 103 of the ICC

Termination Act of 1995, Public Law104–88, 109 Stat. 803 (1995) (to becodified at 49 U.S.C. 14123), theSecretary of Transportation hasauthority to establish regulations for thecollection of certain data from motorcarriers of property and others. OnDecember 9, 1996, BTS published anotice in the Federal Register (theNotice) proposing to establish anegotiated rulemaking advisorycommittee (the Committee) under theFederal Advisory Committee Act andthe Negotiated Rulemaking Act. 61 FR64849. The Committee would considerthe relevant issues and attempt to reacha consensus on regulations governingthe collection of financial and operatingdata from motor carriers of property.This effort also is in response to thePresident’s Regulatory ReinventionInitiative, which specifically directedagencies to increase use of regulatorynegotiation in rulemaking proceedings.The Committee would be composed ofpeople who represent the interests thatwould be substantially affected by therule.

The Notice proposing establishmentof the Committee listed potential topics

3493Federal Register / Vol. 62, No. 15 / Thursday, January 23, 1997 / Proposed Rules

for the negotiated rulemaking process. Italso listed entities identified asinterested parties that should beincluded in the negotiated rulemakingprocess either directly as members ofthe Committee or as part of a broadercaucus of similar or related interests.The Notice requested comments on theproposal to establish a negotiatedrulemaking advisory committee, on theproposed membership of theCommittee, and on the proposed issuesfor consideration by the Committee.BTS has decided to supplement itsrequest for comments by (1) holding apublic meeting on this matter; and (2)extending the comment period untilafter the public meeting.

Announcement of BTS Public MeetingTo better determine the utility of

negotiating a rule on this matter, BTSwill hold a public meeting on February10, 1997, 9:30 am to 3:00 pm, EasternStandard Time. The meeting will takeplace at the U.S. Department ofTransportation, 400 Seventh Street,SW., Washington, D.C., in conferenceroom 2230 of the Nassif Building. Sinceaccess to the DOT building iscontrolled, all persons who plan toattend the meeting must notify DavidMednick on (202) 366–8871 prior toFebruary 7. Attendance is open to theinterested public but limited to spaceavailable. Persons with a disabilityrequiring special services, such as aninterpreter for the hearing impaired,should contact Mr. Mednick at (202)366–8871 at least seven days prior to themeeting.

While negotiated rulemaking wouldattempt to resolve issues surroundingthe motor carrier data collectionprogram, several initial matters deserveattention. First, do we need to amendthe existing rule and, if so, is negotiatedrulemaking the best process forupdating the motor carrier datacollection program? Second, if so, whatare the core issues in dispute anddiffering legitimate needs of theinterested parties? Third, whichorganizations or interests should berepresented on the Committee?

While comments received have beenhelpful, BTS does not have enoughinformation to determine whether topursue negotiated rulemaking. Thepublic meeting will bring together thevarious interest groups. A facilitator willbe on hand to help develop potentialissues and promote open discussion. Inaddition to helping BTS decide whetherto pursue the negotiated rulemaking, itshould also help lay the groundwork forthe proposed Committee.

All those interested in thisrulemaking, including the potential

participants listed in the Notice andthose submitting applications ornominations for membership, areencouraged to attend.

Extension of Comment Period

Because BTS has not reached a finaldecision on whether to use a negotiatedrulemaking process for this rule, it isextending the comment period on itsproposal published December 19, 1996.61 FR 64849. The comment period isextended to February 28, 1997. BTS issoliciting comments on the proposal toestablish a negotiated rulemakingadvisory committee, on the proposedmembership of the Committee, and onthe proposed issues for consideration bythe Committee. BTS is also acceptingapplications and nominations formembership on the Committee. Pleaserefer to the original Notice for fulldetails.

Issued in Washington, DC, on January 16,1997.Robert A. Knisely,Deputy Director, Bureau of TransportationStatistics.[FR Doc. 97–1580 Filed 1–22–97; 8:45 am]BILLING CODE 4910–FE–P


Fish and Wildlife Service

50 CFR Part 17

RIN 1018–AA98

Endangered and Threatened Wildlifeand Plants; Notice of Reopening ofComment Period on Reports and OtherData Pertaining to the Listing of theBruneau Hot Springsnail

AGENCY: Fish and Wildlife Service,Interior.ACTION: Notice of reopening of publiccomment period.

SUMMARY: The U.S. Fish and WildlifeService (Service) gives notice that thecomment period on reports and otherdata pertaining to the listing of theBruneau hot springsnail (Pyrgulopsisbruneauensis) is reopened. A notice ofavailability that opened the originalpublic comment period was publishedon September 12, 1995 (60 FR 47339).The Service extended the commentperiod until December 15, 1995, in anotice published on November 13, 1995(60 FR 56976). The Service herebyreopens the comment period andsolicits new information and publiccomment on all information and datareceived since the listing of the speciesin 1993.

DATES: The comment period is reopeneduntil March 10, 1997. Any commentsand materials received by the closingdate will be considered in the finaldetermination.ADDRESSES: Comments and materialsconcerning the reports and otherinformation pertaining to the listing ofthe Bruneau hot springsnail should besubmitted to the U.S. Fish and WildlifeService, Snake River Basin Office, 1387South Vinnell Way, Room 368, Boise,Idaho 83709. Reports and other datacited in this notice, and publiccomments and other materials receivedwill be available for public inspectionduring normal business hours at theabove address.FOR FURTHER INFORMATION CONTACT:Robert Ruesink, Supervisor, at theaddress listed above (telephone 208/378–5243, facsimile 208/378–5262).


BackgroundOn January 25, 1993, the Service

published a final rule in the FederalRegister determining the Bruneau hotspringsnail (Pyrgulopsis bruneauensis)to be an endangered species (58 FR5946). In its decision to list thespringsnail the Service relied, in part,on a provisional draft of a U.S.Geological Survey (USGS) report(Berenbrock 1992) analyzing thehydrology of the geothermal aquifer inthe Bruneau Valley area. The USGSprovided the Service with the draftreport, but did not release it to thepublic and requested that the Servicenot release the report to the public,pending agency review and approval.

On May 7, 1993, the Idaho FarmBureau Federation, Owyhee CountyFarm Bureau, Idaho Cattleman’sAssociation, and Owyhee County Boardof Supervisors challenged the listingdecision on several grounds in a lawsuitfiled in United States District Court forthe District of Idaho. The plaintiffsargued that the Service committed anumber of procedural errors during thelisting process, including not allowingthe public to review the draft USGSreport. On December 14, 1993 thedistrict court determined that theService committed several proceduralerrors and set aside the final rule listingthe springsnail as an endangeredspecies.

The district court decision wasappealed to the United States Court ofAppeals for the Ninth Circuit by twointervening conservation groups, theIdaho Conservation League andCommittee for Idaho’s High Desert. OnJune 29, 1995, the appellate courtoverturned the district court decision

3494 Federal Register / Vol. 62, No. 15 / Thursday, January 23, 1997 / Proposed Rules

and reinstated the Bruneau hotspringsnail to the endangered specieslist. However, the appellate courtconcluded that the Service should havemade the draft USGS report (i.e.,Berenbrock 1992) available for publicreview, as the Service relied largely onthis report to support the final listingrule. The appellate court directed theService to provide an opportunity forpublic comment on the final USGSreport and to reconsider its listingdecision.

To comply with the court’s direction,the Service announced that theBerenbrock (1992) report, and otherreports and data pertaining to the listingof the springsnail were available forpublic comment until November 13,1995, in a notice published onSeptember 12, 1995 (60 FR 47339).Because of a request from Susan E.Buxton on behalf of her client (John B.Urquidi, J & J Ranches, Bruneau, Idaho),the Service extended the publiccomment period until December 15,1996, in a notice published onNovember 13, 1995 (60 FR 56976).Nearly 400 comments were receivedfrom individuals and agencies duringthe public comment period.

Because of a moratorium on finallisting actions from April 10, 1995, untilApril 26, 1996 (Pub. L. 104–6), theService was unable to comply with theJune 1995 court decision and issue itsreconcideration listing decision. Inanticipation of the end of themoratorium and after it was lifted, theService issued interim guidance onMarch 11, 1996 (61 FR 9651), finalguidance for fiscal year 1996 on May 16,1996 (61 FR 24722), and final guidancefor fiscal year 1997 on December 5, 1996(61 FR 64475), regarding the setting ofpriorities for various listing actions.These guidance documents focused theService’s limited funding on emergencyactions, and final rules for imminentlyand highly threatened species, and formulti-species packages. Consequently,the Service took no action on thespringsnail during fiscal year 1996.Though listing priorities now allow theService to take final action on this courtdecision, it has been over 1 year sincethe close of the last public commentperiod. Therefore, the Service is nowsoliciting additional comments andmaking available for public review newinformation and other data pertaining tothe listing of the Bruneau hotspringsnail received since the lastcomment period.

Available Reports and DataIn addition to the draft USGS report,

which was finalized in August 1993(i.e., Berenbrock 1993), the Service

listed 13 additional reports anddocuments in its past notices (60 FR47339 and 60 FR 56976) that arepertinent to the listing decision andwere received since the original listingrule was published on January 25, 1993.Moreover, the Service received 5additional reports or letters pertinent tothis listing decision since the close ofthe public comment period onDecember 15, 1995. The followingcombined list of reports and letterscontained in Service files, includingother non-cited information, areavailable for public review andcomment:Berenbrock, C. 1992. Effects of well

discharges on hydraulic heads in andspring discharges from the geothermalaquifer system in the Bruneau area,Owyhee County, southwestern Idaho.U.S. Geological Survey, Water-Resources Investigations, Boise,Idaho. Preliminary report.

Berenbrock, C. 1993. Effects of welldischarges on hydraulic heads in andspring discharges from the geothermalaquifer system in the Bruneau area,Owyhee County, southwestern Idaho.U.S. Geological Survey, Water-Resources Investigations Report 93–4001, Boise, Idaho.

Bruneau Valley Coalition, Inc. 1995.Habitat maintenance and conservationplan for the Bruneau hot springsnail,January, 1995. Unpublished plan.

Bruneau Valley Coalition, Inc. 1995.Proposed amendment to the‘‘Threatened and EndangeredSpecies’’ section of the InterimComprehensive Land Use Plan for thefederally and state managed lands inOwyhee County. Unpublishedamendment.

Idaho Water Resources ResearchInstitute. 1994. Bruneau hot springsaquifer restoration report: Apreproposal. Unpublished report,University of Idaho, Moscow, Idaho.

Lee, J.A. 1994. Summary report for thecontrol survey of the Bruneau hotspringsnail. Unpublished report,Bureau of Land Management, BoiseDistrict Office, Boise, Idaho.

Mladenka, G.C. 1993. Report on the1993 Bruneau hot springsnail sitesurvey. Unpublished report.

Mladenka, G.C. 1995. Bruneau hotsprings invertebrate survey.Unpublished report, Stream EcologyCenter, Idaho State University,Pocatello, Idaho.

Mladenka, G.C. and G.W. Minshall.1996. Report on the 1996 Bruneau hotspringsnail site survey. Unpublishedreport.

Royer, T.V. and G.W. Minshall. 1993.1993 Annual Monitoring Report:

Bruneau hot springsnail (Pyrgulopsisbruneauensis). Unpublished report,Stream Ecology Center, Idaho StateUniversity, Pocatello, Idaho.

U.S. Geological Survey. 1993.Unpublished letter addressing error inestimating natural recharge togeothermal aquifer system, and statusof Bruneau-area ground water-levelsand spring discharges. Boise, Idaho.

U.S. Geological Survey. 1995a.Unpublished letter summarizingresults of Bruneau-area ground water-level and spring discharge monitoringdata through December 1994. Boise,Idaho.

U.S. Geological Survey. 1995b.Unpublished letter commenting onIdaho Water Resources ResearchInstitute’s report and summarizingprovisional, spring discharge datacollected from June 1994 through July1995 from three hot springs above HotCreek, Idaho.

U.S. Geological Survey. 1996a.Unpublished letter summarizingBruneau-area ground water-level andspring discharge monitoring datacollected through January 1996. Boise,Idaho.

U.S. Geological Survey. 1996b. Annualreport summarizing results ofBruneau-area ground water-level andspring discharge monitoring throughJune 1996. Boise, Idaho.

U.S. Geological Survey. 1996c. Annualreport summarizing results ofBruneau-area ground water-level andspring discharge monitoring throughSeptember 1996. Boise, Idaho.

Varricchione, J.T. and G.W. Minshall.1995. 1994 Monitoring Report:Bruneau hot springsnail (Pyrgulopsisbruneauensis). Technical Bulletin No.95–14, Idaho Bureau of LandManagement.

Varricchione, J.T. and G.W. Minshall.1995. Gut content analysis of wildGambusia and Tilapia in Hot Creek,Bruneau, Idaho. Unpublished report,Idaho State University, Pocatello,Idaho.

Varricchione, J.T. and G.W. Minshall.1996. 1995 Monitoring Report:Bruneau hot springsnail (Pyrgulopsisbruneauensis). Idaho Bureau of LandManagement Technical Bulletin No.96–8. Stream Ecology Center, IdahoState University, Pocatello, Idaho.

Authority

The authority for this action is theEndangered Species Act, as amended(16 U.S.C. 1531–1544.)


Endangered and threatened species,Exports, Imports, Reporting and

3495Federal Register / Vol. 62, No. 15 / Thursday, January 23, 1997 / Proposed Rules

recordkeeping requirements,Transportation.

Dated: January 14, 1997H. Dale Hall,Acting Regional Director, Region 1, U.S. Fishand Wildlife Service.[FR Doc. 97–1602 Filed 1–22–97; 8:45 am]BILLING CODE 4310–55–P



50 CFR Part 648

[I.D. 011397B]

New England Fishery ManagementCouncil; Meeting

AGENCY: National Marine FisheriesService (NMFS), National Oceanic andAtmospheric Administration (NOAA),Commerce.ACTION: Public meeting.

SUMMARY: The New England FisheryManagement Council (Council) willhold a 2-day public meeting to consideractions affecting New England fisheriesin the exclusive economic zone.DATES: The meeting will be held onWednesday, January 29, 1997, at 10a.m., and on Thursday, January 30,1997, at 8:30 a.m.ADDRESSES: The meeting will be held atthe King’s Grant Inn, Route 128 andTrask Lane, Danvers, MA 01923.Requests for special accommodationsshould be addressed to the NewEngland Fishery Management Council, 5Broadway, Saugus, MA 01906–1097;telephone (617) 231–0422.FOR FURTHER INFORMATION CONTACT: PaulJ. Howard, Executive Director, New

England Fishery Management Council,(617) 231–0422.SUPPLEMENTARY INFORMATION:

January 29, 1997

After introductions, the January 29session will begin with a report on the23rd Stock Assessment Workshoppresented by the staff of the NortheastFisheries Science Center. Analyses willbe reviewed for the following species/stocks: Atlantic sea scallops, monkfish,and bluefish.

At the afternoon session and on thefollowing day, the Council will consideraction on framework adjustments to theFishery Management Plan for theNortheast Multispecies Fishery (FMP)under the framework for abbreviatedrulemaking procedure contained in 50CFR 648.90. This will be the finalmeeting to discuss and vote onFramework Adjustment 20 to the FMP(stock rebuilding measures for 1997).The range of options underconsideration include area closures,gear modifications, and possiblereductions in days-at-sea allocations. Aspart of this action, the Council willdiscuss effort reduction measures forgillnet vessels and alternatives to thecurrent haddock trip limit. Measures toprotect the 1992 year class of winterflounder also will be discussed andincluded in this action. Otheradjustments included in FrameworkAdjustment 20 would allow operation ofmussel dredges in Southern NewEngland and would modify the bycatchallowances in the northern shrimpfishery.

January 30, 1997

The January 30 session will beginwith reports from the CouncilChairman, Executive Director, NMFS

Northeast Regional Administrator(Regional Administrator), NortheastFisheries Science Center, Mid-AtlanticCouncil Liaisons, representatives of theAtlantic States Marine FisheriesCommission and the U.S. Coast Guard.NMFS will follow with a briefing on theMagnuson-Stevens FisheryConservation and Management Actrequirements concerning essential fishhabitat.

In the afternoon, the Council willhold the final meeting on a frameworkadjustment to consider measures thatwould restrict fixed gear in the GreatSouth Channel area to protect rightwhales in critical habitat during highuse periods.

There will be a review of theMonkfish Committee’s discussions onthe Draft Environmental ImpactStatement and the Draft FMPAmendment dealing with monkfish.

The day will conclude with adiscussion on the use of negotiatedrulemaking to resolve gear conflicts inthe highly migratory species fisheries.Any other outstanding business willalso be discussed.

Special Accommodations

This meeting is physically accessibleto people with disabilities. Requests forsign language interpretation or otherauxiliary aids should be directed to PaulJ. Howard (see ADDRESSES) at least 5days prior to the meeting date.

Authority: 16 U.S.C. 1801 et seq.

Dated: January 16, 1997.Bruce Morehead,Acting Director, Office of SustainableFisheries, National Marine Fisheries Service.[FR Doc. 97–1655 Filed 1–22–97; 8:45 am]BILLING CODE 3510–22–F

This section of the FEDERAL REGISTERcontains documents other than rules orproposed rules that are applicable to thepublic. Notices of hearings and investigations,committee meetings, agency decisions andrulings, delegations of authority, filing ofpetitions and applications and agencystatements of organization and functions areexamples of documents appearing in thissection.

Notices Federal Register

3496

Vol. 62, No. 15


DEPARTMENT OF AGRICULTURE

Submission for OMB Review;Comment Request

January 17, 1997.The Department of Agriculture has

submitted the following informationcollection requirement(s) to OMB forreview and clearance under thePaperwork Reduction Act of 1995,Public Law 104–13. Commentsregarding (a) whether the collection ofinformation is necessary for the properperformance of the functions of theagency, including whether theinformation will have practical utility;(b) the accuracy of the agency’s estimateof burden including the validity of themethodology and assumptions used; (c)ways to enhance the quality, utility andclarity of the information to becollected; (d) ways to minimize theburden of the collection of informationon those who are to respond, includingthrough the use of appropriateautomated, electronic, mechanical, orother technological collectiontechniques or other forms of informationtechnology should be addressed to: DeskOfficer for Agriculture, Office ofInformation and Regulatory Affairs,Office of Management and Budget(OMB), Washington, D.C. 20503 and toDepartment Clearance Office, USDA,OCIO, Mail Stop 7602, Washington, D.C.20250–7602.

Comments regarding theseinformation collections are best assuredof having their full effect if receivedwithin 30 days of this notification.Copies of the submission(s) may beobtained by calling (202) 720–6204 or(202) 720–6746.

An agency may not conduct orsponsor a collection of informationunless the collection of informationdisplays a currently valid OMB controlnumber and the agency informspotential persons who are to respond tothe collection of information that such

persons are not required to respond tothe collection of information unless itdisplays a currently valid OMB controlnumber.

Food Safety and Inspection Service

Title: Use of Two Kinds of PoultryWithout Label Change.

OMB Control Number: NewCollection.

Summary: FSIS is proposing to amendthe poultry products inspectionregulations by adding a provision thatwould permit manufactures of poultryproducts to interchange the amountsand kinds of poultry present in aproduct without requiring new labelsfor each formulation.

Need and use of the Information: Theinformation would be used to ensurethat poultry products are properlylabeled and packaged.

Description of Respondents: Businessor other for-profit.

Number of Respondents: 50.Frequency of Responses:

Recordkeeping; Reporting: On occasion.Total Burden Hours: 125.

Farm Service Agency

Title: Farmer Program Loans.OMB Control Number: 0560–0155.Summary: The Secretary of

Agriculture is authorized to make andservice loans guaranteed by the FarmService Agency (FSA) to eligible farmersand ranchers. The loans made andserviced under 7 CFR 1980 Subpart Binclude farm operating, farm ownershipand soil and water loans. Also underthis subpart are emergency loans andrecreation loans, which are no longerguaranteed by FSA.

Need and use of the information: Thiscollection of information is necessary toassure that the program is carried out inaccordance with applicable laws andauthorities.

Description of Respondents: Farms,Business or other for-profit.

Number of Respondents: 23,150.Frequency of Responses:

Recordkeeping; Reporting: On occasion.Total Burden Hours: 193,343.

Farm Service Agency

Title: Emergency Livestock FeedAssistance and Disaster ReserveAssistance Programs—7 CFR 1439.

OMB Control Number: 0560–0029.Summary: Emergency livestock feed

and disaster reserve assistance programs

authorize the Secretary of Agriculture toassist in the preservation andmaintenance of livestock in any area ofthe United States where the Secretarydetermines that a livestock feedemergency exists.

Need and use of the Information:These requirements are necessary forthe proper performance of USDA’sfunctions in administering provisions ofthe emergency livestock and disasterreserve assistance programs.

Description of Respondents: Farms;Individuals or households.

Number of Respondents: 60,000.Frequency of Responses: Reporting:

Monthly.Total Burden Hours: 81,832.Emergency Processing of This

Submission Has Been Requested byJanuary 16, 1997.

Farm Service Agency

Title: 7 CFR 729 and 1446—PoundageQuota and Marketing Regulations forPeanuts—Addendum.

OMB Control Number: 0560–0006.Summary: The Agriculture

Adjustment Act of 1938 as amended,and the Agriculture Act of 1949, asamended, authorizes the peanutprogram. The Food Security Act of 1985provides for a two-priced peanutprogram and permits growers toproduce and market quota andadditional peanuts. The law specifiesexact quantities of quota that may bemarketed from a farm and the level ofsupport. It is required that tenants sharein any increased quota due to thetenant’s production of additionalpeanuts on the farm.

Need and Use of the Information:Data is used to monitor and controlcompliance with the peanut program.

Description of Respondents: Farms;Individuals or households.

Number of Respondents: 15,000.Frequency of Responses:

Recordkeeping; Reporting: On occasion.Total Burden Hours: 460,090.Emergency Processing of This

Submission Has Been Requested byJanuary 30, 1997.Larry Roberson,Deputy Departmental Clearance Officer.[FR Doc. 97–1635 Filed 1–22–97; 8:45 am]BILLING CODE 3410–01–M

3497Federal Register / Vol. 62, No. 15 / Thursday, January 23, 1997 / Notices


International Trade Administration

Export Trade Certificate of Review

ACTION: Notice of application to amendcertificate.

SUMMARY: The Office of Export TradingCompany Affairs (‘‘OETCA’’),International Trade Administration,Department of Commerce, has receivedan application to amend an ExportTrade Certificate of Review. This noticesummarizes the proposed amendmentand requests comments relevant towhether the amended Certificate shouldbe issued.FOR FURTHER INFORMATION CONTACT:W. Dawn Busby, Director, Office ofExport Trading Company Affairs,International Trade Administration,(202) 482–5131. This is not a toll-freenumber.SUPPLEMENTARY INFORMATION: Title III ofthe Export Trading Company Act of1982 (15 U.S.C. 4001–21) authorizes theSecretary of Commerce to issue ExportTrade Certificates of Review. ACertificate of Review protects the holderand the members identified in theCertificate from state and federalgovernment antitrust actions and fromprivate, treble damage antitrust actionsfor the export conduct specified in theCertificate and carried out incompliance with its terms andconditions. Section 302(b)(1) of the Actand 15 CFR 325.6(a) require theSecretary to publish a notice in theFederal Register identifying theapplicant and summarizing its proposedexport conduct.

Request for Public Comments

Interested parties may submit writtencomments relevant to the determinationwhether an amended Certificate shouldbe issued. An original and five (5)copies should be submitted no laterthan 20 days after the date of this noticeto: Office of Export Trading CompanyAffairs, International TradeAdministration, Department ofCommerce, Room 1800H, Washington,D.C. 20230. Information submitted byany person is exempt from disclosureunder the Freedom of Information Act(5 U.S.C. 552). Comments should referto this application as ‘‘Export TradeCertificate of Review, applicationnumber 85–6A018.’’

U.S. Shippers Association’s (‘‘USSA’’)original Certificate was issued on June3, 1986 (51 FR 20873, June 9, 1986), andpreviously amended on January 16,1990 (55 FR 2543, January 25, 1990);November 13, 1990 (55 FR 48664,

November 21, 1990); September 22,1993 (58 FR 51061, September 30,1993); and on June 28, 1994 (59 FR34411, July 5, 1994). A summary of theapplication for an amendment follows.

Summary of the ApplicationApplicant: U.S. Shippers Association

(‘‘USSA’’), 1209 Orange Street,Wilmington, Delaware 19801.

Contact: Andrew J. Shapiro, Counsel,Telephone: (202) 662–5447.

Application No.: 85–6A018.Date Deemed Submitted: January 10,

1997.

Proposed AmendmentUSSA seeks to amend its Certificate to

add the following companies as new‘‘Members’’ of the Certificate within themeaning of Section 325.2(1) of theRegulations (15 C.F.R. 325.2(1)): NOVAChemicals Inc., Monaca, PA(Controlling Entity: NOVA Corporation,Calgary, Alberta, Canada); PectenChemicals Inc., Houston, TX(Controlling Entity: Royal DutchPetroleum Company, The Hague, TheNetherlands); and Phillips PetroleumCompany, Bartlesville, OK.

Dated: January 11, 1997.W. Dawn Busby,Director, Office of Export Trading CompanyAffairs.[FR Doc. 97–1574 Filed 1–22–97; 8:45 am]BILLING CODE 3510–DR–P

National Institute of Standards andTechnology

[Docket No. 960227052–6355–02]

RIN 0693–ZA06

Continuation of Fire Research GrantsProgram; Availability of Funds

AGENCY: National Institute of Standardsand Technology, Commerce.ACTION: Notice.

SUMMARY: The purpose of this notice isto inform potential applicants that theFire Research Program, NationalInstitute of Standards and Technology,is continuing its Fire Research GrantsProgram.DATES: Proposals must be received nolater than the close of businessSeptember 30, 1997.ADDRESSES: Applicants must submit onesigned original and two (2) copies of theproposal along with the Application forFederal Assistance, Standard Form 424,(Rev. 4–92), as referenced under theprovisions of OMB Circular A–110 to:Building and Fire Research Laboratory

(BFRL), Attention: Sonya Parham,Building 226, Room B206

National Institute of Standards andTechnology, Gaithersburg, Maryland20899–0001.

FOR FURTHER INFORMATION CONTACT:Technical questions concerning theNIST Fire Research Grants Programshould be directed to Sonya Parham,(301) 975–6854. Administrativequestions concerning the NIST FireResearch Grants Program may bedirected to the NIST Grants Office at(301) 975–6329. Additional informationcan be found in the Extramural FireResearch Program: ProgramAnnouncement and Preparation Guide.Copies may be downloaded from theBFRL web site (http://www.bfrl.nist.gov) or obtained fromSonya Parham at the above address.


Catalog of Federal Domestic AssistanceName and Number: Measurement andEngineering Research and Standards; 11.609.

Authority: As authorized by section 16 ofthe Act of March 3, 1901, as amended (15U.S.C. 278f), the NIST Building and FireResearch Laboratory conducts directly andthrough grants and cooperative agreements, abasic and applied fire research program. Theannual budget for the Fire Research GrantsProgram is approximately $1.4 million.Because of commitments for the support ofmulti-year programs, only a portion of thebudget is available to initiate new programsin any one year. Most grants and cooperativeagreements are in the $10,000 to $100,000per year range. The Fire Research Program islimited to innovative ideas generated by theproposal writer, who chooses the topic andapproach. The issuance of awards iscontingent upon the availability of funding.

All grants proposals submitted mustbe in accordance with the programs andobjectives listed below.

Program Objectives

A. Fire Modeling and Applications

To perform research, develop, anddemonstrate the application ofanalytical models for the quantitativeprediction of the consequences of firesand the means to assess the accuracy ofthose models. This includes: developmethods to assess fire hazard and risk;create advanced, usable models for thecalculation of the effluent from buildingfires; model the ignition and burning offurniture, contents, and buildingelements such as walls; developmethods of evaluating and predictingthe performance of building safetydesign features; develop a protocol fordetermining the accuracy of algorithmsand comprehensive models; developdata bases to facilitate use of firemodels, and develop methodologies toacquire, model, and display fireinformation.

3498 Federal Register / Vol. 62, No. 15 / Thursday, January 23, 1997 / Notices

B. Large Fire ResearchTo perform research on and develop

techniques to measure, predict thebehavior of, and mitigate large fireevents. This includes: understandingthe mechanisms of large fires thatcontrol gas phase combustion, burningrate, thermal and chemical emissions,transport processes; developing fieldmeasurement techniques to assess thenear- and far-field impact of large firesand their plumes; performing researchon the use of combustion forenvironmental cleanup; predicting theperformance and environmental impactof fire protection measures and firefighting systems and techniques; anddeveloping and operating the FireResearch Program large-scaleexperimental facility.

C. Advanced Fire MeasurementsProduces the scientific basis and

robust measurement methods forcharacterizing fires and their effluents atfull- and reduced-scales.

This includes discrete point, volume-integrated, and time- and space-resolvedmeasurements for such properties astemperature, smoke density, chemicalspecies and flow velocity. Laboratoryand computational research is alsoperformed to understand theunderpinning fire phenomena to ensurethe soundness of the developedmeasurement techniques.

D. Materials Fire ResearchPerforms research to enable the

confident development by industry ofnew, less-flammable materials andproducts. This capability is based onunderstanding fundamentally themechanisms that control the ignition,flame spread, and burning rate ofmaterials and the chemical and physicalcharacteristics that affect these aspectsof flammability. This includes:Developing methods of measuring theresponse of a material to fire conditionsthat enable assured prediction of thefull-scale performance of the finalproduct; developing computationalmolecular dynamics and othermechanistic approaches to understandflame retardant mechanisms and theeffect of polymer chemical structure onflammability; characterizing the burningrates of charring and non-charringpolymers and composites; delineatingand modeling the enthalpy and masstransfer mechanisms of materialscombustion.

E. Fire Sensing and ExtinguishmentDevelops understanding, metrology,

and predictive methods to enable high-performance fire sensing andextinguishment systems; devises new

approaches to minimizing the impact ofunwanted fires and the suppressionprocess. This includes: research for theidentification and insitu measurementof the symptoms of pending and nascentfires and the consequences ofsuppression; devising or adaptingmonitors for these variables and theintelligence for timely interpretation ofthe data; developing methods tocharacterize the performance of newapproaches to fire detection andsuppression; determining mechanismsfor deflagration and detonationsuppression by advanced agents andprinciples for their optimal use; andmodeling the extinguishment process.

Award PeriodProposals will be considered for

research projects from one to threeyears. When a proposal for a multi-yeargrant is approved, funding will initiallybe provided for only the first year of theprogram. If an application is selected forfunding, DoC has no obligation toprovide any additional future funding inconnection with that award. Renewal ofan award to increase funding or extendthe period of performance is at the totaldiscretion of DoC. Funding for eachsubsequent year of a multi-year proposalwill be contingent on satisfactoryprogress, fit to the NIST Fire ResearchProgram, and the availability of funds.

Matching RequirementsThe Fire Research Grants Program

does not involve the payment of anymatching funds and does not directlyaffect any state or local government.

EligibilityAcademic institutions, non-Federal

agencies, and independent andindustrial laboratories and researchorganizations.

Proposal Review ProcessAll proposals are assigned to the

appropriate group leader of the fiveprograms listed above. Both technicalvalue of the proposal and therelationship of the work proposed to theneeds of the specific program are takeninto consideration in the group leader’srecommendation to the Division Chief.Applicants should allow up to 90 daysprocessing time. Proposals are evaluatedfor technical merit by at least threereviewers chosen from NISTprofessionals, technical experts fromother interested government agenciesand experts from the fire researchcommunity at large.

Evaluation Criteriaa. Technical quality of the research:

0–35.

b. Potential impact of the results: 0–25.

c. Staff and institution capability todo the work: 0–20.

d. Match of budget to proposed work:0–20.

Selection Procedure

The results of these evaluations aretransmitted to the group leader of theappropriate research unit in theBuilding and Fire Research Laboratorywho prepares an analysis of comments,considers overall program balance andobjective, and makes a recommendationto the Division Chief.

Paperwork Reduction Act

The Standard Forms 424, 424A, 424B,and LLL mentioned in this notice aresubject to the requirements of thePaperwork Reduction Act and havebeen approved by the Office ofManagement and Budget, (OMB), underControl Numbers 0348–0043, 0348–0044, 0348–0040, and 0348–0046.Notwithstanding any other provision oflaw, no person is required to respondnor shall a person be subject to apenalty for failure to comply with acollection of information subject to therequirements of the PaperworkReduction Act unless that collection ofinformation displays a currently validOMB Control Number.

Application Kit

An application kit, containing allrequired application forms andcertifications is available by callingSonya Parham, NIST Fire ResearchGrants Program (301) 975–6854. Anapplication kit includes the following:SF–424 (Rev. 4/92)—Application for

Federal AssistanceSF–424A (Rev. 4/92)—Budget

Information-Non-ConstructionPrograms

SF–424B (Rev. 4/92)—Assurance-Non-Construction Programs

CD–511 (7/91)—Certification RegardingDebarment, Suspension, and OtherResponsibility Matters: Drug-FreeWorkplace Requirements andLobbying

CD–512 (7/91)—Certification RegardingDebarment, Suspension, Ineligibilityand Voluntary Exclusions-Lower TierCovered Transactions and Lobbying

SF–LLL—Disclosure of LobbyingActivities

Additional Requirements

Past Performance

Unsatisfactory performance underprior Federal awards may result in anapplication not being considered forfunding.


Preaward Activities

Applicants who incur any costs priorto an award being made do so solely attheir own risk of not being reimbursedby the Government. Notwithstandingany verbal assurance that may havebeen provided, there is no obligation onthe part of NIST to cover preawardcosts.

Primary Application Certification

All primary applicants must submit acompleted Form CD–511, ‘‘CertificationRegarding Debarment, Suspension andOther Responsibility Matters; Drug-FreeWorkplace Requirements andLobbying,’’ and the followingexplanations are hereby provided:

1. Nonprocurement Debarment andSuspension. Prospective participants (asdefined at 15 CFR Part 26, Section 605)are subject to 15 CFR Part 26, SubpartF., ‘‘Nonprocurement Debarment andSuspension’’ and the related section ofthe certification form prescribed aboveapplies;

2. Drug-Free Workplace. Grantees (asdefined at 15 CFR Part 26, Section 605)are subject to 15 CFR Part 26, SubpartF., ‘‘Governmentwide Requirements forDrug-Free Workplace (Grants)’’ and therelated section of the certification formprescribed above applies;

3. Anti-Lobbying. Persons (as definedat 15 CFR Part 28, Section 105) aresubject to the lobbying provisions of 31U.S.C. 1352, ‘‘Limitation on use ofappropriated funds to influence certainFederal contracting and financialtransactions,’’ and the lobbying sectionof the certification form prescribedabove applies to applications/bids forgrants, cooperative agreements, andcontracts for more than $100,000, andloans and loan guarantees for more than$150,000, or the single family maximummortgage limit for affected programs,whichever is greater, and;

4. Anti-Lobbying Disclosure. Anyapplicant that has been paid or will payfor lobbying using any funds mustsubmit an SF–LLL, ‘‘Disclosure ofLobbying Activities,’’ as required under15 CFR Part 28, Appendix B.

5. Lower Tier Certifications.Recipients shall require applicants/bidders for subgrants, contracts,subcontracts, or other lower tier coveredtransactions at any tier under the awardto submit, if applicable, a completedForm CD–512, ‘‘Certification RegardingDebarment, Suspension, Ineligibilityand Voluntary Exclusion-Lower TierCovered Transactions and Lobbying’’and disclosure form, SF–LLL,‘‘Disclosure of Lobbying Activities.’’Form CD–512 is intended for the use ofrecipients and should not be transmitted

to NIST. SF–LLL submitted by any tierrecipient or subrecipient should besubmitted to NIST in accordance withthe instructions contained in the awarddocument.

Name Check Reviews

All for-profit and non-profitapplicants will be subject to a namecheck review process. Name checks areintended to reveal if any key individualsassociated with the applicant have beenconvicted of or are presently facing,criminal charges such as fraud, theft,perjury, or other matters whichsignificantly reflect on the applicant’smanagement honesty or financialintegrity.

False Statements

Applicants are reminded that a falsestatement may be grounds for denial ortermination of funds and grounds forpossible punishment by fine orimprisonment.

Delinquent Federal Debts

No award of Federal funds shall bemade to an applicant who has anoutstanding delinquent Federal debtuntil either:

1. The delinquent account is paid infull;

2. A negotiated repayment schedule isestablished and at least one payment isreceived, or;

3. Other arrangements satisfactory toDoC are made.

No Obligation for Future Funding

If an application is accepted forfunding, DoC has no obligation toprovide any additional future funding inconnection with that award. Renewal ofan award, increased funding, orextending the period of performance isat the total discretion of NIST.

Federal Policies & Procedures

Recipients and subrecipients underthe Fire Research Grants Program aresubject to all applicable Federal lawsand Federal and Departmental policies,regulations, and procedures applicableto Federal financial assistance awards.The Fire Research Grant Program doesnot directly affect any state or localgovernment.

Applications under this program arenot subject to Executive Order 12372,‘‘Intergovernmental Review of FederalPrograms.’’

Purchase of American-Made Equipmentand Products

Applicants are hereby notified thatthey are encouraged, to the greatestextent practicable, to purchaseAmerican-made equipment and

products with funding provided underthis program.

Indirect Costs

The total dollar amount of the indirectcosts proposed in an application underthis program must not exceed theindirect cost rate negotiated andapproved by a cognizant Federal agencyprior to the proposed effective date ofthe award or 100 percent of the totalproposed direct cost dollar amount inthe application, whichever is less.

Executive Order StatementThis funding notice was determined

to be ‘‘not significant’’ for purposes ofE.O. 12866.

Dated: January 16, 1997.Elaine Bunten-Mines,Director, Program Office.[FR Doc. 97–1653 Filed 1–22–97; 8:45 am]BILLING CODE 3510–13–M


[I.D. 011497A]

Atlantic Striped Bass Fishery; 1995Survey of Atlantic Striped BassFisheries

AGENCY: National Marine FisheriesService (NMFS), National Oceanic andAtmospheric Administration (NOAA),Commerce.ACTION: Notice of availability.

SUMMARY: NMFS announces theavailability and summarizes the resultsof a survey of the Atlantic coast stripedbass fisheries for 1995. The AtlanticStriped Bass Conservation Act (Act),requires NMFS to provide informationon the status of the fisheries.ADDRESSES: Copies of the survey resultsare available from Paul Perra, NOAA/NMFS/FX2, 8484 Georgia Avenue, Suite245, Silver Spring, MD 20910.FOR FURTHER INFORMATION CONTACT: PaulPerra, (301) 427–2014.SUPPLEMENTARY INFORMATION:

The Act requires the Secretary ofCommerce and the Secretary of theInterior to conduct a comprehensiveannual survey of the Atlantic stripedbass fisheries. The following is asummary of the survey for 1995.Management measures that severelyrestricted the harvest of striped bass bycommercial and recreational fisherieswere moderately relaxed in 1995, as thestocks continue to rebuild.

The 1995 commercial harvest ofstriped bass was 3,810,608 lb (1.728.5mt), an increase of 98 percent above thelandings of 1,923,000 lb (872.3 mt) in


1994. The Chesapeake Bay area(Maryland, Virginia, and the PotomacRiver) accounted for 52 percent of the1995 commercial landings, whileMassachusetts and North Carolinaaccounted for 21 percent and 9 percentrespectively.

The recreational catch in 1995 was anestimated 9.6 million striped bass, ofwhich 1.1 million were harvested; theremaining 8.5 million were released.The estimated weight of the recreationalharvest was 12.1 million lb (5,492.4 mt).

Juvenile production in 1995 waslower than in 1994 but remained atlevels above the long term averages forNew York, Maryland, North Carolina,and Virginia. The Delaware juvenileproduction index of 7.6 was the highestin the time series for that index, whichbegan in 1980.

Information from sampling thepopulation of striped bass shows anincreased relative abundance fromrecent year classes. Copies of the surveyare available upon request (seeADDRESSES).

Dated: January 16, 1997.Rolland A. Schmitten,Assistant Administrator for Fisheries,National Marine Fisheries Service.[FR Doc. 97–1654 Filed 1–22–97; 8:45 am]BILLING CODE 3510–22–F

[I.D. 011797A]

Endangered Species; Permits

AGENCY: National Marine FisheriesService (NMFS), National Oceanic andAtmospheric Administration (NOAA),Commerce.ACTION: Notice of availability.

SUMMARY: NMFS announces theavailability of an EnvironmentalAssessment and the receipt of anapplication for a permit to allow anincidental take of threatened andendangered species by WeyerhaeuserCompany on portions of its lands inLane, Linn, Benton, and DouglasCounties, OR. This notice of availabilitysupplements the notice of availabilityprovided by the U.S. Fish and WildlifeService published elsewhere in thisFederal Register volume.

Authority: 16 U.S.C. 1531–1544, and 4201–4245.

Dated: January 17, 1997.Robert C. Ziobro,Acting Chief, Endangered Species Division,Office of Protected Resources, NationalMarine Fisheries Service.[FR Doc. 97–1652 Filed 1–22–97; 8:45 am]BILLING CODE 3510–22–P

CONSUMER PRODUCT SAFETYCOMMISSION

Sunshine Act Meeting

TIME AND DATE: Thursday, January 30,1997, 10:00 a.m.LOCATION: Room 410, East West Towers,4330 East West Highway, Bethesda,Maryland.STATUS: Closed to the Public.MATTER TO BE CONSIDERED:

Compliance Status Report

The staff will brief the Commission on thestatus of various compliance matters.

For a recorded message containing thelatest agenda information, call (301) 504–0709.

CONTACT PERSON FOR ADDITIONALINFORMATION: Sadye E. Dunn, Office ofthe Secretary, 4330 East West Highway,Bethesda, MD 20207, (301) 504–0800.

Dated: January 21, 1997.Sadye E. Dunn,Secretary.[FR Doc. 97–1798 Filed 1–21–97; 2:33 pm]BILLING CODE 6355–01–M

CORPORATION FOR NATIONAL ANDCOMMUNITY SERVICE

Learn and Serve America—School andCommunity-Based Programs; Notice

AGENCY: Corporation for National andCommunity Service.ACTION: Notice of availability of fundsfor new grants and notice of availabilityof fiscal year 1997 applicationguidelines.

SUMMARY: The Corporation for Nationaland Community Service (Corporation)announces the availability ofapproximately $25,713,000 to supportnew Learn and Serve America—Schooland Community-Based Programs (CFDA#94.004). State educational agencies (forStates and certain other jurisdictions,including U.S. territories), grantmakingentities, and Indian tribes are eligible toapply for school-based program funds.State Commissions and grantmakingentities are eligible to apply forcommunity-based program funds. Theapplication form and guidelines forcompleting the application arecontained in the Learn & Serve America:School and Community-Based Programs1997 Application Guidelines.DATES: All applications must bereceived by 3:30 p.m., Eastern StandardTime, March 12, 1997.ADDRESSES: Applications should besubmitted to Box SCB at the Corporationfor National and Community Service,

1201 New York Ave, NW., Washington,DC 20525. Facsimiles will not beaccepted.FOR FURTHER INFORMATION CONTACT: Toobtain a copy of the Learn & ServeAmerica: School and Community-BasedPrograms 1997 Application Guidelines,call (202) 606–5000 ext. 260. Anyfurther inquiries may be directed toCalvin Dawson at ext. 136.SUPPLEMENTARY INFORMATION: The Learnand Serve America—School andCommunity-Based Programs (CFDA#94.004) aim to increase theopportunities of students and school-ageyouth and allow them to develop theirown capabilities through service-learning. In Fiscal Year 1997,approximately $25,713,000 will beavailable for new Learn and ServeAmerica—School and Community-Based Programs.

I. School-Based Programs

Up to $19,842,000 will be providedfor new grants to State educationalagencies from funds allotted to States byformula. Local educational agencies inthose States where the State educationalagency elects not to apply for itsformula allotment may apply directly tothe Corporation. Contact your Stateeducational agency with any questions.

Up to $2,488,000 will be provided ona competitive basis to support newgrants to grantmaking entities. To beeligible for an award under thisprogram, a grantmaking entity must (1)be a public or private nonprofitorganization experienced in service-learning, (2) submit an application tomake grants for school-based service-learning programs in two or more states,and (3) have been in existence at leastone year prior to submitting itsapplication. Grantmaking entities mustmake subgrants for the service-learningpurposes described in the applicationguidelines.

For Indian tribes and U.S. territories,approximately $200,000 is available ona competitive basis for new grants.These grants may be used for theservices-learning purposes described inthe application guidelines.

II. Community-Based Programs

Up to $3,183,000 will be provided ona competitive basis to support newgrants to State Commissions andgrantmaking entities. State Commissionsand grantmaking entities may use fundsto make subgrants to qualifiedorganizations for the service-learningpurposes described in the applicationguidelines, and to provide training andtechnical assistance to thoseorganizations. Qualified organizations


may use funds to implement, operate,expand, or replicate a community-basedservice program as described in theapplication guidelines.

Dated: January 16, 1997.Barry W. Stevens,Acting General Counsel, Corporation forNational and Community Service.[FR Doc. 97–1562 Filed 1–22–97; 8:45 am]BILLING CODE 6050–28–P

DEPARTMENT OF DEFENSE

Department of the Army

Final Environmental Impact Statement/Environmental Impact Report (FEIS/FEIR) for Proposed Combined-ForcesTraining Activities, New EquipmentUtilization, and Range ModernizationProgram at Camp Roberts ArmyNational Guard Training Site, California

AGENCY: Department of the Army, DoD.ACTION: Notice of availability.

SUMMARY: The purpose of this project isto maximize training opportunities formilitary units that use Camp Roberts.Military units need to be able tomaintain a high level of training andstate of readiness to support nationaldefense and state missions in times ofnatural disaster, civil unrest, and otheremergencies. Adequate trainingopportunities, with up-to-dateequipment, must be available to allowthem to train for their assignedmissions.

This FEIS/EIR analyzes the proposedaction, two alternatives, and the no-action alternative. The proposed actionconsists of three components:Combined-forces training with twobrigades of personnel and associatedequipment, new equipment utilization,and a range modernization program.

The combined-forces trainingcomponent would consist of increasingthe intensity of training from a typicalmaximum of approximately 5,300soldiers to approximately 10,600soldiers during an annual trainingperiod at Camp Roberts. Four new typesof equipment would be introduced atCamp Roberts as part of the proposedaction: The M1 Abrams series of tankswould replace the M60 series tanks;Bradley Fighting Vehicles wouldreplace the M113 series armoredpersonnel carriers; the Multiple-LaunchRocket System would replace all buttwo of the M110 8-inch howitzers; andthe AH–64 series Apache helicopterswould replace the Cobra helicopters.The range modernization programcomponent would be composed of both

upgrading existing ranges andconstructing new ranges.

In addition to the proposed action, theFEIS/EIR evaluates three otheralternatives: No-Action, New EquipmentUtilization and Range ModernizationProgram, and the Peak Training Use ofCamp Roberts/Fort Hunter Liggett.

A 45-day public review and commentperiod was provided for the DraftEnvironmental Impact Statement/Environmental Impact Report (DEIS/EIR). Two public hearings were held inSan Luis Obispo and Paso Robles,California, on the DEIS/EIR after theNotice of Availability was published.After all the comments were compiledand reviewed, responses were preparedto all relevant environmental issues thatwere raised. These responses tocomments and/or any new pertinentinformation were incorporated into theDEIS/EIR to constitute the FEIS/EIR.After a 30-day waiting period on theFEIS/EIR, a Record of Decision will bepublished.ADDRESSES: Copies of the FEIS/EIR willbe mailed to individuals whoparticipated in the public scopingprocess. Copies will also be sent toFederal, state, regional, and localagencies; interested organizations andagencies; and public libraries.Individuals not currently on the mailinglist may obtain a copy by request.FOR FURTHER INFORMATION CONTACT:Lieutenant Colonel William Parsonage,EIS/EIR Project Officer, Camp RobertsArmy National Guard Training Site,Camp Roberts, CA, 93451–5000;telephone (805) 238–8207.Raymond J. Fatz,Deputy Assistant Secretary of the Army,(Environment, Safety, and OccupationalHealth) OASA (IL&E).[FR Doc. 97–1597 Filed 1–22–97; 8:45 am]BILLING CODE 3710–08–M

Department of the Navy

Notice of Board of Visitors to theUnited States Naval Academy; ClosedMeeting

SUMMARY: Pursuant to the provisions ofthe Federal Advisory Committee Act (5U.S.C. App. 2), notice is hereby giventhat a special subcommittee of the Boardof Visitors to the United States NavalAcademy will meet on 23 January 1997,at the United States Naval Academy,Annapolis, MD, at 8:30 a.m. Thismeeting will be closed to the public.

The purpose of the meeting is to makesuch inquiry as the Board shall deemnecessary into the state of morale anddiscipline, the curriculum, instruction,physical equipment, fiscal affairs, and

academic methods of the NavalAcademy. During this meeting inquirieswill relate to the internal personnelrules and practices of the Academy, mayinvolve on-going criminalinvestigations, and include discussionsof personal information the disclosureof which would constitute a clearlyunwarranted invasion of personalprivacy. Accordingly, the Secretary ofthe Navy has determined in writing thatthe special subcommittee meeting shallbe closed to the public because they willbe concerned with matters as outlinedin section 552(b) (2), (5), (6), and (7) oftitle 5, United States Code.FOR FURTHER INFORMATION CONCERNINGTHIS MEETING CONTACT: LieutenantCommander Adam S. Levitt, U.S. Navy,Secretary to the Board of Visitors, Officeof the Superintendent, United StatesNaval Academy, Annapolis, MD 21402–5000 Telephone: (410) 293–1503.

Dated: January 14, 1997.D.E. Koenig, Jr.,LCDR, JAGC, USN, Federal Register LiaisonOfficer.[FR Doc. 97–1589 Filed 1–22–97; 8:45 am]BILLING CODE 3810–FF–P

DEPARTMENT OF EDUCATION

[CFDA No.: 84.902B]

National Assessment of EducationalProgress (NAEP), Secondary AnalysisProgram; Notice Inviting Applicationsfor New Awards for Fiscal Year (FY)1997

Purpose of Program: NAEP providesinformation on the educationalachievement of school children. Thepurpose of the NAEP SecondaryAnalysis program is to encourageeligible parties to apply new ideas orstate-of-the-art techniques to theanalysis and reporting of theinformation contained in NAEP andNAEP High School Transcript Studies.

Eligible Applicants: Public or privateorganizations and consortia oforganizations.

Deadline for Transmittal ofApplications: March 24, 1997.

Applications Available: January 29,1997.

Available Funds: Up to $700,000.Estimated Range of Awards:

$15,000—$100,000.Estimated Average Size of Awards:

$85,000.Estimated Number of Awards: 5–10.Note: The Department is not bound by any

estimates in this notice.

Project Period: Up to 18 months.


Applicable Regulations: (a) TheEducation Department GeneralAdministrative Regulations (EDGAR) in34 CFR Parts 74, 75, 77, 80, 81, 82, 85,and 86; and (b) The regulations in 34CFR Part 700.

Invitational Priorities: The Secretaryis particularly interested in applicationsthat meet one or both of the invitationalpriorities in this notice. However, anapplication that meets one or both ofthese invitational priorities does notreceive competitive or absolutepreference over other applications (34CFR 75.105(c)(1)).

Invitational Priority 1—Projects thataddress the instructional factors, familybackground factors, and school andteacher characteristics that theeducational research literature suggestsare correlates of academic performance.

Invitational Priority 2—Projects thatinclude the development of statisticalsoftware that would allow moreadvanced analytic techniques to bereadily applied to NAEP data.

Evaluation Criteria: The Secretaryselects from the criteria in 34 CFR700.30(e) to evaluate applications fornew grants under this competition.Under 34 CFR 700.30(a), the Secretaryannounces in the application packagethe evaluation criteria selected for thiscompetition and the maximum weightassigned to each criterion.

For Applications or InformationContact: For application send writtenrequest to Alex Sedlacek, U.S.Department of Education, NationalCenter for Education Statistics, Office ofEducational Research and Improvement,Room 404B, 555 New Jersey Avenue,NW., Washington, DC 20208–5653;Internet ([email protected]); orFAX your request to (202) 219–2061(include CFDA number listed above andthe surface mail address to which theapplication should be sent). Forinformation contact Alex Sedlacek at(202) 219–1734. Individuals who use atelecommunications device for the deaf(TDD) may call the Federal InformationRelay Service (FIRS) at 1–800–877–8339between 8 a.m. and 8 p.m., Eastern time,Monday through Friday.

Information about the Department’sfunding opportunities, including copiesof application notices for discretionarygrant competitions, can be viewed onthe Department’s electronic bulletinboard (ED Board), telephone (202) 260–9950; on the Internet Gopher Server (atgopher://gcs.ed.gov); or on the WorldWide Web (at http://gcs.ed.gov).However, the official application noticefor a discretionary grant competition isthe notice published in the FederalRegister.

Program Authority: 20 U.S.C. 9010.

Dated: January 16, 1997.Marshall Smith,Acting Assistant Secretary for EducationalResearch and Improvement.[FR Doc. 97–1648 Filed 1–22–97; 8:45 am]BILLING CODE 4000–01–P

Advisory Committee on StudentFinancial Assistance; Meeting

AGENCY: Advisory Committee onStudent Financial Assistance,Education.ACTION: Notice of upcoming meeting.

SUMMARY: This notice sets forth theschedule and proposed agenda of aforthcoming partially closed meeting ofthe Advisory Committee on StudentFinancial Assistance. This notice alsodescribes the functions of theCommittee. Notice of this meeting isrequired under Section 10(a)(2) of theFederal Advisory Committee Act. Thisdocument is intended to notify thegeneral public.DATES AND TIMES: February 4, 1997,beginning at 8:30 a.m. and ending at4:30 p.m. but closed from approximately4:30 p.m. to 6:30 p.m., and on February5, 1997, beginning at 8:30 a.m. andending at 2:00 p.m.ADDRESSES: Radisson Barcelo Hotel,2121 P Street, N.W., Washington, D.C.20036.FOR FURTHER INFORMATION CONTACT:Dr. Brian K. Fitzgerald, Staff Director,Advisory Committee on StudentFinancial Assistance, Portals Building,1280 Maryland Avenue, S.W., Suite 601,Washington, D.C. 20202–7582 (202)708–7439.SUPPLEMENTARY INFORMATION: TheAdvisory Committee on StudentFinancial Assistance is establishedunder Section 491 of the HigherEducation Act of 1965 as amended byPublic Law 100–50 (20 U.S.C. 1098).The Advisory Committee is establishedto provide advice and counsel to theCongress and the Secretary of Educationon student financial aid matters,including providing technical expertisewith regard to systems of need analysisand application forms, makingrecommendations that will result in themaintenance of access to postsecondaryeducation for low- and middle-incomestudents, conducting a study ofinstitutional lending in the StaffordStudent Loan Program, and assistingwith activities related to reauthorizationof the Higher Education Act of 1965. Asa result of the passage of the HigherEducation Amendments of 1992, theCongress directed the AdvisoryCommittee to assist with a series of

special assessments and conduct an in-depth study of student loansimplification. The Advisory Committeefulfills its charge by conductingobjective, nonpartisan, and independentanalyses of important student aid issues.As a result of passage of the OmnibusBudget Reconciliation Act (OBRA) of1993, Congress assigned the AdvisoryCommittee the major task of evaluatingthe Ford Federal Direct Loan Program(FDLP) and the Federal FamilyEducation Loan Program (FFELP). TheCommittee will report to the Secretaryand Congress on not less than an annualbasis on the operation of both programsand submit a final report by January 1,1997.

The proposed agenda includes (a)presentations and discussion sessionson reauthorization of the HigherEducation Act; (b) an AdvisoryCommittee regulatory update; and (c) aplanning session on the Committee’sagenda for the remainder of fiscal year1997, and other Committee business(e.g., election of officers, budget report,etc). Space is limited and you areencouraged to register early if you planto attend. You may register throughInternet at [email protected] [email protected]. Pleaseinclude your name, title, affiliation,complete address (including Internetand e-mail—if available), and telephonenumber. If you are unable to registerthrough Internet, you may mail or faxyour registration information to theAdvisory Committee staff office at (202)401–3467. Also, you may contact theAdvisory Committee staff at (202) 708–7439. The registration deadline isThursday, January 30, 1997.

The Advisory Committee will meet inWashington, D.C. on February 4, 1997,from 8:30 a.m. to 4:30 p.m., and onFebruary 5, from 8:30 a.m. toapproximately 2:00 p.m. The meetingwill be closed to the public on February4, from approximately 4:30 p.m. to 6:30p.m. to elect a new chairperson anddiscuss other personnel matters. Theensuing discussions will relate tointernal personnel rules and practices ofan agency and will disclose informationof a personal nature where disclosurewould constitute a clearly unwarrantedinvasion of personal privacy ifconducted in open session. Suchmatters are protected by exemptions (2)and (6) of Section 552(b)(c) of Title 5U.S.C.

A summary of the activities at theclosed session and related matterswhich are informative to the publicconsistent with the policy of Title 5U.S.C. 552(b) will be available to thepublic within fourteen days after themeeting.


Records are kept of all Committeeproceedings, and are available for publicinspection at the Office of the AdvisoryCommittee on Student FinancialAssistance, Portals Building, 1280Maryland Avenue, S.W., Suite 601,Washington, D.C. from the hours of 9:00a.m. to 5:30 p.m., weekdays exceptFederal holidays.

Dated: January 16, 1997.Brian K. Fitzgerald,Staff Director Advisory Committee on StudentFinancial Assistance.[FR Doc. 97–1538 Filed 1–22–97; 8:45 am]BILLING CODE 4000–01–M

DEPARTMENT OF ENERGY

Federal Energy RegulatoryCommission

[Docket No. TQ97–4–23–001]

Eastern Shore Natural Gas Company;Notice of Proposed Changes in FERCGas Tariff

January 16, 1997.

Take notice that on January 14, 1997,Eastern Shore Natural Gas Company(Eastern Shore) tendered for filing aspart of its FERC Gas Tariff, First RevisedVolume No. 1, certain substitute revisedtariff sheets in the above captioneddocket, with a proposed effective date ofFebruary 1, 1997.

Eastern Shore states the substituterevised tariff sheets are being filed tocorrect its PS–1 Demand Charge. Suchcorrection is required due to a clericalerror found in Eastern Shore’sworkpapers which developed its PS–1tracking adjustment and resulted inEastern Shore overstating its PS–1Demand Charge by $0.39.

Eastern Shore states that copies of thefiling have been served upon itsjurisdictional customers and interestedState Commissions.

Any person desiring to protest saidfiling should file a protest with theFederal Energy Regulatory Commission,888 First Street, N.E., Washington, D.C.20426, in accordance with Rule 211 ofthe Commission’s Rules of Practice andProcedure (18 CFR 385.211). All suchprotests must be filed in accordancewith Section 154.210 of theCommission’s Regulations. Protests willbe considered by the Commission indetermining the appropriate action to betaken, but will not serve to makeprotestants parties to the proceeding.Copies of this filing are on file with the

Commission and are available for publicinspection in the public reference room.Linwood A. Watson, Jr.,Acting Secretary.[FR Doc. 97–1631 Filed 1–22–97; 8:45 am]BILLING CODE 6717–01–M

[Docket No. RP96–147–001]

Equitrans, L.P.; Notice of ProposedChanges in FERC Gas Tariff

January 16, 1997.

Take notice that on January 7, 1997,Equitrans, L.P. (Equitrans) tendered forfiling as part of its FERC Gas Tariff, FirstRevised Volume No. 1, the followingtariff sheets, with an effective date ofFebruary 1, 1997:Third Revised Sheet No. 35Third Revised Sheet No. 36Second Revised Sheet No. 220First Revised Sheet No. 220AFirst Revised Sheet No. 220BFirst Revised Sheet No. 220CThird Revised Sheet No. 332

Equitrans states the proposed tariffsheets are submitted in compliance with‘‘Order on Technical Conference’’issued by the Commission on December23, 1996 in Docket No. RP96–147.Equitrans states that the Commissionrequired Equitrans to refile the tariffsheets to eliminate application of theproposed ratchets to Rate Schedule115SS thereby limiting application ofthe ratchets to Rate Schedules 10SS,30SS and 60SS and further requiredrevision of the proposed tariff languageto apply the ratchets on a pro rata basisacross all three Rate Schedules based oneach customer’s individual storagelevel. Equitrans states that the proposedtariff sheets incorporate these revisions.

Any person desiring to protest thisfiling should file a protest with theFederal Energy Regulatory Commission,888 First Street, N.E., Washington, D.C.20426, in accordance with Section385.211 of the Commisson’s Rules andRegulations. All such protests must befiled as provided in Section 154.210 ofthe Commission’s Regulations. Protestswill be considered by the Commissionin determining the appropriate action tobe taken, but will not serve to makeprotestants parties to the proceeding.Copies of this filing are on file with theCommission and are available for publicinspection in the Public ReferenceRoom.Linwood A. Watson, Jr.,Acting Secretary.[FR Doc. 97–1627 Filed 1–22–97; 8:45 am]BILLING CODE 6717–01–M


Koch Gateway Pipeline Company;Notice of Compliance Filing

January 16, 1997.Take notice that on January 13, 1997,

Koch Gateway Pipeline Company(Koch) tendered for filing as part of itsFERC Gas Tariff, Fifth Revised VolumeNo. 1, the following tariff sheets, tobecome effective January 1, 1997:Substitute Second Revised Sheet No. 28Substitute Original Sheet No. 604Substitute Original Sheet No. 605Substitute Original Sheet No. 606Original Sheet No. 607Substitute Fourth Revised Sheet No. 1808Substitute Fourth Revised Sheet No. 1809

Koch states that the purpose of thisfiling is to comply with a Commission‘‘Order Accepting and SuspendingTariff Sheets, Subject to Refund andConditions’’ requesting changes toKoch’s Parking and Lending filing(PAL). The PAL filing was made toimplement a new nominatedinterruptible gas parking and lendingservice under Rate Schedule PAL.

Any person desiring to protest thisfiling should file a protest with theFederal Energy Regulatory Commission,888 First Street, N.E., Washington, D.C.20426, in accordance with Section385.211 of the Commission’s Rules andRegulations. All such protests must befiled in accordance with Section154.210 of the Commission’sRegulations. Protests will be consideredby the Commission in determining theappropriate action to be taken, but willnot serve to make protestants parties tothe proceeding. Copies of this filing areon file with the Commission and areavailable for public inspection in thePublic Reference Room.Linwood A. Watson, Jr.,Acting Secretary.[FR Doc. 97–1628 Filed 1–22–97; 8:45 am]BILLING CODE 6717–01–M

[Docket No. TM97–5–16–002]

National Fuel Gas Supply Corporation;Notice of Correction to Tariff Filing


National Fuel Gas Supply Corporation(National) tendered for filing, acorrection to part of its FERC Gas Tariff,Third Revised Volume No. 1, with aproposed effective date of January 1,1997.

National states that on January 8,1997, in Docket No. TM–97–5–16–001,National filed Fourth Revised Sheet No.29. However, the plain version of FourthRevised Sheet No. 29 contained an


1 18 CFR 385.213(d).2 Section 213(d) of the Commission’s Regulations

provides that, generally, any answer to a motionmust be made within 15 days after the motion isfiled. Furthermore, answers to intervention motionsare to address only the standing to intervene andnot the merits of the intervenor’s position, and 15days is an adequate amount of time in which to doso.

error. Accordingly, National submittedSubstitute Fourth Revised Sheet No. 29to correct that error.

Any person desiring to protest saidfiling should file a protest with theFederal Energy Regulatory Commission,888 First Street, N.E., Washington, D.C.20426, in accordance with Rule 211 ofthe Commission’s Rules of Practice andProcedure (18 CFR 385.211). All suchprotests must be filed in accordancewith Section 154.210 of theCommission’s Regulations. Protests willbe considered by the Commission indetermining the appropriate action to betaken but will not serve to makeprotestants parties to the proceeding.Copies of this filing are on file with theCommission and are available for publicinspection.Linwood A. Watson, Jr.,Acting Secretary.[FR Doc. 97–1630 Filed 1–22–97; 8:45 am]BILLING CODE 6717–01–M

[Docket No. CP97–190–000]

Northern Natural Gas Company; Noticeof Application


Northern Natural Gas Company(Northern), 1111 South 103rd Street,Omaha, Nebraska 68124–1000, filed anDocket No. CP97–190–000 anapplication pursuant to Section 7(b) ofthe Natural Gas Act, for permission atits Sublette Compressor Station locatedin Seward County, Kansas, all as morefully set forth in the application on filewith the Commission and open topublic inspection.

Northern states that the compressorunits that it proposes to abandon, willnot be required due to changes in theoperating conditions, resulting from theinstallation of five new units thatNorthern is proposing to install andoperate, in a companion application thatNorthern filed in Docket No. CP97–191–000. Northern further states that the newunits proposed in Docket No. CP97–191–000 will eliminate the need for theten old and near obsolete units. It isasserted that the abandonment of theunits will not result in the abandonmentof service to any of Northern’s existingshippers, nor will the proposedabandonment adversely effect capacitysince this compression will be replacedwith newer and more efficienttechnology.

Any person desiring to be heard or tomake any protest with reference to saidapplication should on or beforeFebruary 7, 1997, file with the FederalEnergy Regulatory Commission,

Washington, D.C. 20426, a motion tointervene or a protest in accordancewith the requirements of theCommission’s Rules of Practice andProcedure (18 CFR 385.214 or 385.211)and the Regulations under the NaturalGas Act (18 CFR 157.10). All protestsfiled with the Commission will beconsidered by it in determining theappropriate action to be taken but willnot serve to make the protestants partiesto the proceeding. Any person wishingto become a party to a proceeding or toparticipate as a party in any hearingtherein must file a motion to intervenein accordance with the Commission’sRules.

Take further notice that, pursuant tothe authority contained in and subject tothe jurisdiction conferred upon theFederal Energy Regulatory Commissionby Sections 7 and 15 of the Natural GasAct and the Commission’s Rules ofPractice and Procedure, a hearing willbe held without further notice before theCommission or its designee on thisapplication if no motion to intervene isfiled within the time required herein, ifthe Commission on its own review ofthe matter finds that permission andapproval for the proposed abandonmentare required by the public convenienceand necessity. If a motion for leave tointervene is timely filed, or if theCommission on its own motion believesthat a formal hearing is required, furthernotice of such hearing will be dulygiven.

Under the procedure herein providedfor, unless otherwise advised, it will beunnecessary for Northern to appear orbe represented at the hearing.Linwood A. Watson, Jr.,Acting Secretary.[FR Doc. 97–1624 Filed 1–22–97; 8:45 am]BILLING CODE 6717–01–M

[Project No. 2833–049]

Public Utility District No. 1 of LewisCounty; Notice Granting Extension ofTime

January 16, 1997.On November 1, 1996, the

Commission issued notice of PublicUtility District No. 1 of Lewis County’s(Lewis County) application foramendment of the license for its CowlitzFalls Project No. 2833, located on theCowlitz River in Lewis County,Washington. On December 19, 1996,American Whitewater Affiliation andRivers Council of Washington (AWA)jointly filed a timely motion tointervene in opposition in theamendment proceeding. Pursuant toRule 213(d) of the Commission’s Rules

of Practice and Procedure,1 the deadlinefor answers to AWA’s motion wasJanuary 3, 1997.

On December 31, 1996, because of itsdelayed receipt of AWA’s motion, LewisCounty filed a request for a 30-dayextension of time to answer the motion.Pursuant to Rule 213(d), Lewis Countyis granted a 15-day extension of time tofile an answer to AWA’s interventionmotion.2 Accordingly, the answer mustbe filed within 15 days of the issuanceof this notice.Linwood A. Watson, Jr.,Acting Secretary.[FR Doc. 97–1625 Filed 1–22–97; 8:45 am]BILLING CODE 6717–01–M


Questar Pipeline Company; Notice ofTariff Filing


Questar Pipeline Company (Questar)tendered for filing as part of its FERCGas Tariff, First Revised Volume No. 1,to be effective February 12, 1997, andMay 1, 1997, the following tariff sheetstariff):

Effective February 12, 1997Second Revised Sheet Nos. 163 and 170Original Sheet No. 170A

Effective May 1, 1997Second Revised Sheet No. 164Original Sheet Nos. 164A and 164BThird Revised Sheet Nos. 166 and 167

The Questar states that the proposedtariff sheets revise Part 3 of the GeneralTerms and Conditions of Questar’s tariffby (1) allowing a Rate Schedule FSSshipper in Questar’s Clay Basin storagefield (Clay basin firm shipper) totransfer any or all of its injection rightsand Minimum Required Deliverability(MRD) (withdrawal) rights to anotherClay Basin firm shipper, (2) clarifyingQuestar’s administration requests forinterruptible storage service and (3)assuring that information regardingoperational flow orders can be logicallydiscovered by its customers.

Questar explains further that it isrequesting a May 1, 1997, effective datefor tariff sheets implementingprovisions regarding the transfer ofinjection and withdrawal rights for two


reasons. First, the date is consistentwith the date Questar’s injection periodbegins; and second, once the provisionsare approved, Questar will needapproximately two-months lead time todevelop the computer programmingchanges that are needed to implementthis concept.

Questar states that a copy of this filinghas been served upon its customers, thePublic Service Commission of Utah andthe Wyoming Public ServiceCommission.

Any person desiring to be heard or toprotest said filing should file a motionto intervene or protest with the FederalEnergy Regulatory Commission, 888First Street, N.E., Washington, D.C.20426, in accordance with Rules385.211 and 385.214 of theCommission’s Rules of Practice andProcedure (18 CFR 385.211 and385.214). All such motions or protestsmust be filed in accordance withSection 154.210 of the Commission’sRegulations. Protests will be consideredby the Commission in determining theappropriate action to be taken, but willnot serve to make Protestants parties tothe proceeding. Any person wishing tobecome a party must file a motion tointervene. Copies of this filing are onfile with the Commission and areavailable for public inspection in thePublic Reference Room.Linwood A. Watson, Jr.,Acting Secretary.[FR Doc. 97–1629 Filed 1–22–97; 8:45 am]BILLING CODE 6717–01–M

[Docket No. CP96–152–000]

Riverside Pipeline Company, L.P.;Notice of Technical Conference

January 16, 1997.Take notice that the Commission Staff

will convene a two-day technicalconference in the above captioneddocket on February 6, 1997, from 10:00a.m. to 4:15 p.m. and on February 7,1997 from 10:00 a.m. to 3:15 p.m. at theoffices of the Federal Energy RegulatoryCommission, 888 1st Street N.E.,Washington, D.C. 20426. Any party, asdefined in 18 CFR 385.102(c), anyperson seeking intervenor statuspursuant to 18 CFR 385.214 and anyparticipant, as defined in 18 CFR385.102(b), is invited to attend.

The purpose of the conference is todiscuss the resolution of issuespertaining to the initial rates proposedin this proceeding and the underlyingcost of service. In addition, theconference will provide an opportunity,as needed, for further discussion ofother tariff-related issues which were

addressed at previous technicalconferences in this proceeding.

For further information, contactGeorge Dornbusch (202) 208–0881,Office of Pipeline Regulation, Room 81–31.Linwood A. Watson, Jr.,Acting Secretary.[FR Doc. 97–1623 Filed 1–22–97; 8:45 am]BILLING CODE 6717–01–M

[Docket No. ER95–7–013, et al.]

PanEnergy Power Services, Inc., et al.Electric Rate and Corporate RegulationFilings

January 16, 1997.Take notice that the following filings

have been made with the Commission:

1. PanEnergy Power Services, Inc.

[Docket No. ER95–7–013]Take notice that on December 13,

1996, PanEnergy Power Services, Inc.tendered for filing a Notification ofChange in Status in the above-referenced docket.

2. C.C. Pace Energy Services, PowerExchange Corporation, Rig Gas Inc.,SuperSystems, Inc., Energy MarketingServices, Inc., Alternate Power SourceInc., and Preferred Energy Services,Inc.

[Docket No. ER94–1181–010, Docket No.ER95–72–007, Docket No. ER95–480–007,Docket No. ER96–906–002, Docket No. ER96–734–001, Docket No. ER96–1145–001, andDocket No. ER96–2141–001 (notconsolidated)]

Take notice that the followinginformational filings have been madewith the Commission and are on fileand available for inspection andcopying in the Commission’s PublicReference Room:

On January 3, 1997, C.C. Pace EnergyServices filed certain information asrequired by the Commission’s July 25,1995, order in Docket No. ER94–1181–000.

On December 17, 1996, PowerExchange Corporation filed certaininformation as required by theCommission’s February 1, 1995, order inDocket No. ER95–72–000.

On December 3, 1996, Rig Gas, Inc.filed certain information as required bythe Commission’s March 16, 1995, orderin Docket No. ER95–480–000.

On December 4, 1996, SuperSystems,Inc. filed certain information as requiredby the Commission’s March 27, 1996,order in Docket No. ER96–906–000.

On December 23, 1996, EnergyMarketing Services, Inc. filed certaininformation as required by the

Commission’s February 13, 1996, orderin Docket No. ER96–734–000.

On December 23, 1996, AlternatePower Source Inc. filed certaininformation as required by theCommission’s April 30, 1996, order inDocket No. ER96–1145–000.

On December 2, 1996, PreferredEnergy Services, Inc. filed certaininformation as required by theCommission’s August 13, 1996, order inDocket No. ER96–2141–000.

3. Howard Energy Marketing, Inc.,Gateway Energy, Inc., and PetroleumSource & Systems Group, Inc.

[Docket No. ER95–252–007, Docket No.ER95–1049–005, and Docket No. ER96–266–007 (not consolidated)]

Take notice that the followinginformational filings have been madewith the Commission and are on fileand available for inspection andcopying in the Commission’s PublicReference Room:

On December 10, 1996, HowardEnergy Marketing, Inc. filed certaininformation as required by theCommission’s February 24, 1995, orderin Docket No. ER95–252–000.

On December 3, 1996, GatewayEnergy, Inc. filed certain information asrequired by the Commission’s August 4,1995, order in Docket No. ER95–1049–000.

On December 4, 1996, PetroleumSource & Systems Group, Inc. filedcertain information as required by theCommission’s January 18, 1995, order inDocket No. ER95–266–000.

4. Duke/Louis Dreyfus L.L.C.

[Docket No. ER96–108–006]

Take notice that on December 20,1996, Duke/Louis Dreyfus L.L.C.tendered for filing a change in statusrelating to the proposed combination ofDuke Power Company and PanEnergyCorp.

5. Deseret Generation and Cooperative


Take notice that on January 13, 1997,Deseret Generation and TransmissionCooperative, tendered for filing anamendment in the above-referenceddocket.

Comment date: January 30, 1997, inaccordance with Standard Paragraph Eat the end of this notice.

6. Citizens Utilities Company


Take notice that on December 23,1996, Citizens Utilities Companytendered for filing an amendment in theabove-referenced docket.



7. Montana Power Company

[Docket No. ER97–523–000]Take notice that on January 8, 1997,

Montana Power Company tendered forfiling an amendment in the above-referenced docket.


8. South Carolina Electric & GasCompany


1996, South Carolina Electric & GasCompany tendered for filing its refundreport in the above-referenced docket.


9. Northwest Natural Gas Company

[Docket No. ER97–683–000]Take notice that on January 7, 1997,

Northwest Natural Gas Companytendered for filing an amendment in theabove-referenced docket.


10. Pennsylvania Power & LightCompany


1996, Pennsylvania Power & LightCompany (PP&L), filed a ServiceAgreement, dated August 1, 1996, withDuquesne Light Company (Duquesne)for the sale of capacity and/or energyunder PP&L’s Short Term Capacity and/or Energy Sales Tariff. The ServiceAgreement adds Duquesne as an eligiblecustomer under the Tariff.

PP&L requests an effective date ofDecember 30, 1996, for the ServiceAgreement.

PP&L states that copies of this filinghave been supplied to Duquesne and tothe Pennsylvania Public UtilityCommission.


11. Pennsylvania Power & LightCompany


1996, Pennsylvania Power & LightCompany (PP&L), filed a ServiceAgreement, dated September 23, 1996,with TransCanada Power Corp. (TC) forthe sale of capacity and/or energy under

PP&L’s Short Term Capacity and/orenergy Sales Tariff. The Serviceagreement adds TPC as an eligiblecustomer under the tariff.

PP&L requests an effective date ofDecember 30, 1996, for the ServiceAgreement.

PP&L states that copies of this filinghave been supplied to TPC and to thePennsylvania Public UtilitiesCommission.


12. Ohio Edison Company;Pennsylvania Power Company


1996, Ohio Edison Company, tenderedfor filing on behalf of itself andPennsylvania Power Company, aService Agreement with Baltimore Gas& Electric Company pursuant to OhioEdison’s Power Sales Tariff. ThisService Agreement will enable OhioEdison and Pennsylvania PowerCompany to sell capacity and energy inaccordance with the terms of the Tariff.


13. Ohio Edison Company;Pennsylvania Power Company


1996, Ohio Edison Company, tenderedfor filing on behalf of itself andPennsylvania Power Company, ServiceAgreements for Non-Firm Point-to-PointTransmission Service with DaytonPower & Light Company, AYP Energy,Inc., and Ohio Edison Companypursuant to Ohio Edison’s Open AccessTariff. These Service Agreements willenable the parties to obtain Non-FirmPoint-to-Point Transmission Service inaccordance with the terms of the Tariff.


14. PECO Energy Company


1996, PECO Energy Company (PECO),filed a Service Agreement datedDecember 23, 1996 with Public ServiceElectric and Gas Company (PSE&G)under PECO’s FERC Electric TariffOriginal Volume No. 5 (Tariff). TheService Agreement adds PSE&G as acustomer under the Tariff.

PECO requests an effective date ofDecember 23, 1996, for the ServiceAgreement.

PECO states that copies of this filinghave been supplied to PSE&G and to the

Pennsylvania Public UtilityCommission.




1996, PECO Energy Company (PECO),filed a Service Agreement datedDecember 23, 1996 with PotomacElectric Power Company (PEPCO) underPECO’s FERC Electric Tariff OriginalVolume No. 1 (Tariff). The ServiceAgreement adds PEPCO as a customerunder the Tariff.


PECO states that copies of this filinghave been supplied to PEPCO and to thePennsylvania Public UtilityCommission.




1996, PECO Energy Company (PECO),filed a Service Agreement datedDecember 23, 1996 with AlabamaMunicipal Electric Authority (AMEA)under PECO’s FERC Electric TariffOriginal Volume No. 1 (Tariff). TheService Agreement adds AMEA as acustomer under the Tariff.


PECO states that copies of this filinghave been supplied to AMEA and to thePennsylvania Public UtilityCommission.




1996, PECO Energy Company (PECO),filed a Service Agreement datedDecember 23, 1996 with Orange &Rockland Utilities (O&R) under PECO’sFERC Electric Tariff, First RevisedVolume No. 4 (Tariff). The ServiceAgreement adds O&R as a customerunder the Tariff.


PECO states that copies of this filinghave been supplied to O&R and to thePennsylvania Public UtilityCommission.





1996, PECO Energy Company (PECO),filed a Service Agreement datedDecember 23, 1996 with Florida Power& Light Company (FPL) under PECO’sFERC Electric tariff, First RevisedVolume No. 4 (Tariff). The ServiceAgreement adds FPL as a customerunder the Tariff.


PECO states that copies of this filinghave been supplied to FPL and to thePennsylvania Public UtilityCommission.




1996, PECO Energy Company (PECO),filed a Service Agreement datedDecember 23, 1996 with Cenerprise, Inc.(CENERPRISE) under PECO’s FERCElectric Tariff Original Volume No. 5(Tariff). The Service Agreement addsCENERPRISE as a customer under theTariff.


PECO states that copies of this filinghave been supplied to CENERPRISE andto the Pennsylvania Public UtilityCommission.


20. Commonwealth Edison Company


1996, Commonwealth Edison Company(ComEd), submitted for filing ServiceAgreements, establishing IllinoisMunicipal Electric Agency (IMEA), andCentral Illinois Light Company (CILCO),as customers under the terms ofComEd’s Power Sales and Reassignmentof Transmission Rights Tariff PSRT–1(PSRT–1 Tariff). The Commission haspreviously designated the PSRT–1 Tariffas FERC Electric Tariff, First RevisedVolume No. 2.

ComEd requests an effective date ofJanuary 1, 1997, and accordingly seekswaiver of the Commission’srequirements. Copies of this filing wereserved upon IMEA, CILCO, and theIllinois Commerce Commission.




1996, Commonwealth Edison Company(ComEd), submitted three ServiceAgreements, variously dated,establishing Central Illinois LightCompany (CILCO), Western Resources,Inc. (Western), NIPSCO Energy Services,Inc. (NESI), Toledo Edison Company(Toledo), and Cleveland ElectricIlluminating Company (CEIC), as non-firm customers under the terms ofComEd’s Open Access TransmissionTariff (OATT).

ComEd requests an effective date ofDecember 31, 1996, for the three serviceagreements, and accordingly seekswaiver of the Commission’srequirements. Copies of the filing wereserved upon CLCO, Western, NESI,Toledo, CEIC and the Illinois CommerceCommission.




1996, Commonwealth Edison Company(Edison), submitted Amendment No. 8,dated December 5, 1996, to theInterconnection Agreement, datedMarch 1, 1975 (1975 Agreement),between Edison and Wisconsin Powerand Light Company (Wisconsin Power),(hereinafter referred to collectively asParties). The Commission haspreviously designated the 1975Agreement as Edison Rate Schedule No.16.

Edison requests an effective date ofDecember 31, 1996, for Amendment No.8, and accordingly seeks waiver of theCommission’s requirements. Copies ofthis filing were served upon WisconsinPower and the Illinois CommerceCommission.




1996, Commonwealth Edison Company(Edison), submitted a Notice ofCancellation for the Area CoordinationAgreement between Edison, CenteriorEnergy Corporation (Centerior),Consumers Energy Company(Consumers), Detroit Edison Company(Detroit), Indiana Michigan Power

Company (Indiana Michigan), andNorthern Indiana Public ServiceCompany (Northern Indiana). TheCommission has previously designatedthe Area Coordination Agreement asEdison’s FERC Rate Schedule No. 11.

Edison requests an effective date ofJanuary 1, 1997, for the Notice ofCancellation, and accordingly seekswaiver of the Commission’srequirements. Copies of this filing wereserved upon Centerior, Consumers,Detroit, Indiana Michigan, NorthernIndiana, Illinois CommerceCommission, Indiana Utility RegulatoryCommission, Michigan Public ServiceCommission, and Ohio Public UtilitiesCommission.




1996, Commonwealth Edison Company(Edison), submitted Amendment No. 11to the Interconnection Agreementbetween Edison and Central IllinoisPublic Service Company (CentralIllinois). Amendment No. 11 eliminatescertain service schedules that provideservices redundant to those obtainedthrough Edison’s and Central Illinois’unbundled power sales and open-accesstransmission tariffs. The Commissionhas previously designated theInterconnection Agreement as Edison’sFERC Rate Schedule No. 10.

Edison requests an effective date ofDecember 31, 1996 for Amendment No.11, and accordingly seeks waiver of theCommission’s requirements. Copies ofthis filing were served upon CentralIllinois and the Illinois CommerceCommission.




1996, Commonwealth Edison Company(Edison), submitted Amendment No. 6to the Interconnection Agreementbetween Edison and Interstate PowerCompany (Interstate). Amendment No. 6amends certain service schedules thatprovide services redundant to thoseobtained through Edison’s andInterstate’s unbundled power sales andopen-access transmission tariff. TheCommission has previously designatedthe Interconnection Agreement asEdison’s FERC Rate Schedule No. 7.

Edison requests an effective date ofDecember 31, 1996, for Amendment No.


6, and accordingly seeks waiver of theCommission’s requirements. Copies ofthis filing were served upon Interstateand the Illinois Commerce Commission.




1996, Commonwealth Edison Company(Edison), submitted Amendment No. 1to the Interconnection Agreementbetween Edison and Central IllinoisLight Company (Central Illinois).Amendment No. 1 eliminates certainservice schedules that provide servicesredundant to those obtained throughEdison’s and Central Illinois’ unbundledpower sales and open-accesstransmission tariffs. The Commissionhas previously designated theInterconnection Agreement as Edison’sFERC Rate Schedule No. 33.

Edison requests an effective date ofDecember 31, 1996, for Amendment No.1, and accordingly seeks waiver of theCommission’s requirements. Copies ofthis filing were served upon CentralIllinois and the Illinois CommerceCommission.




1996, Commonwealth Edison Company(Edison), submitted a Notice ofCancellation, dated December 30, 1996,to cancel Edison’s FERC Rate ScheduleNo. 38, effective date September 29,1989. Edison’s FERC Rate Schedule No.38 is a Power Sales Agreement, datedDecember 31, 1988, between the IllinoisMunicipal Electric Agency (IMEA) andEdison which provided for IMEA topurchase power and energy fromEdison. The Commission has previouslydesignated the Power Sales Agreementas Edison’s FERC Rate Schedule No. 38.

Edison requests an effective date ofDecember 31, 1996, for the Notice ofCancellation, and accordingly seekswaiver of the Commission’srequirements. Copies of this filing wereserved upon IMEA and the IllinoisCommerce Commission.


Standard ParagraphE. Any person desiring to be heard or

to protest said filing should file amotion to intervene or protest with theFederal Energy Regulatory Commission,

888 First Street, N.E., Washington, D.C.20426, in accordance with Rules 211and 214 of the Commission’s Rules ofPractice and Procedure (18 CFR 385.211and 18 CFR 385.214). All such motionsor protests should be filed on or beforethe comment date. Protests will beconsidered by the Commission indetermining the appropriate action to betaken, but will not serve to makeprotestants parties to the proceeding.Any person wishing to become a partymust file a motion to intervene. Copiesof this filing are on file with theCommission and are available for publicinspection.Linwood A. Watson, Jr.,Acting Secretary.[FR Doc. 97–1622 Filed 1–22–97; 8:45 am]BILLING CODE 6717–01–P

[Project No. 2322–322]

Duke Power Company; Notice ofAvailability of EnvironmentalAssessment

January 16, 1997.

In accordance with the NationalEnvironmental Policy Act of 1969 andthe Federal Energy RegulatoryCommission’s (Commission’s)Regulations, 18 CFR Part 380 (Order No.486, 52 FR 47897), the Office ofHydropower Licensing (OHL) hasreviewed Duke Power Company’sapplication requesting Commissionauthorization to: (1) Grant an easementto the City of Camden, South Carolina(Camden) to construct raw waterwithdrawal facilities on 1.47 acres ofland within the boundary of theCatawba-Wateree Project, and (2) allowCamden to withdraw up to 12 milliongallons per day (mgd) of water fromLake Wateree. The proposed raw waterintake facility would be constructednear the Eagles Nest Subdivision on thesoutheast shore of Lake Wateree inKershaw County, South Carolina.

The staff of OHL’s Division ofLicensing and Compliance has preparedan Environmental Assessment (EA) forthe proposed action. In the EA, theCommission’s staff has analyzed theenvironmental impacts of the proposedproject and has concluded that approvalof the licensee’s proposal would notconstitute a major federal actionsignificantly affecting the quality of thehuman environment.

Copies of the EA are available forreview in the Public Reference Branch,Room 2A of the Commission’s offices at888 First Street, N.E., Washington, D.C.20426 or by calling the Commission’s

Public Reference Room at (202) 208–1371.Linwood A. Watson, Jr.,Acting Secretary.[FR Doc. 97–1626 Filed 1–22–97; 8:45 am]BILLING CODE 6717–01–M

ENVIRONMENTAL PROTECTIONAGENCY

[FRL–5679–7]

Project XL Draft Final ProjectAgreement for HADCO Corporation

AGENCY: Environmental ProtectionAgency.ACTION: Notice of opportunity for publiccomment.

SUMMARY: The United StatesEnvironmental Protection Agency (EPA)Regions I and II are announcing theavailability of, and soliciting commentson, the draft Final Project Agreementdeveloped for HADCO Corporationunder EPA’s Project XL initiative.DATES: Comments must be submitted onor before February 24, 1997; publichearing, February 12, 1997, 12:30 p.m.;requests to attend the hearing must bereceived on or before February 11, 1997.ADDRESSES: Written comments shouldbe addressed or delivered to Mr. JamesSullivan, U.S. EPA Region II, Mail CodeDECA-RCB, 290 Broadway, New York,NY 10007–1866. A copy of anycomments should also be sent toRegulatory Reinvention Pilot Projects,FRL–5197–9, Water Docket, Mail Code4101, U.S. EPA, 401 M Street, S.W.,Washington, DC 20460.

The public hearing will be held atHADCO Corporation, 1200 Taylor Road,Owego, New York 13827. Requests toattend the hearing should be made toMr. James Sullivan, EPA Region 2, (212)637–4138.

The FPA is available for reviewMonday through Friday, except legalholidays, at the following locations.(Hours of operation for each locationcan be obtained by calling the numbersprovided).1. Derry, NH Public Library, 64 East

Broadway, Derry, NH, (603) 432–6140(Cheryl Lynch, Reference Desk)

2. Aaron Cutler Memorial Library, 269Charles Bancroft Highway, Hudson,NH, (603) 424–4044 (ClaudiaDanielson, Librarian)

3. Kelley Library, 234 Main St, Salem,NH (603) 898–7064, (Deborah Berlin,Reference Department)

4. Colburn Free Library, 275 Main St,Owego, NY (607) 687–3520, (ChristineBurroughs, Librarian)


5. NYS DEC, 50 Wolf Road, Albany, NY,(518) 457–2553 (Mark Moroukian), or(518) 485–8988 (Larry Nadler)

6. NH DES, 6 Hazen Drive, Concord, NH(603) 271–2942, (Kenneth Marschner)

7. US EPA Region I Library, OneCongress Street, 11th Floor, Boston,MA (888) 372–5427

8. US EPA Region II Library, 290Broadway, 16th Floor, New York, NY,(212) 637–3185

FOR FURTHER INFORMATION CONTACT:Kenneth Rota, EPA Region I, (617) 565–3349; Jim Sullivan, EPA Region 2, (212)637–4138; or Lisa Hunter, EPAHeadquarters, (202) 260–4744.SUPPLEMENTARY INFORMATION: HADCO isone of the first facilities accepted intoEPA’s Project XL program. EPA createdProject XL in 1995 as an initiativeproviding regulatory flexibility forindustry to achieve environmentalperformance that is superior to whatwould be achieved through compliancewith existing and reasonably anticipatedfuture regulations. The HADCO FinalProject Agreement (FPA) was developedby EPA, the New HampshireDepartment of Environmental Services(NH DES), the New York StateDepartment of EnvironmentalConservation (NYS DEC), and HADCOCorporation (‘‘the parties’). The FPA isthe document that memorializes theparties’’ intentions concerning ProjectXL for the HADCO facilities in Owego,NY; Hudson, NH; Derry, NH and Salem,NH.

This XL project concerns theclassification under RCRA Subtitle C ofwastewater treatment (WWT) sludgegenerated from printed wire boardmanufacturing facilities (SIC 3672). ThisWWT sludge is presently classified as alisted hazardous waste, having thewaste code F006, pursuant toregulations promulgated under theResource Conservation and RecoveryAct (40 CFR 261.31(a)). Because of thishazardous waste designation, HADCO,and others in the PWB industry, mustcurrently ship this waste to a separatefacility licensed to handle hazardouswastes before it can be reclaimed. Theproject seeks to demonstrate that (a)classifying HADCO’s WWT sludge as anF006 waste pursuant to Subtitle C is notnecessary to protect human health andthe environment, (b) the WWT sludgecan be safely reclaimed without all ofthe strict regulatory controls imposed byRCRA Subtitle C; and (c) a conditionaldelisting or solid waste variance willyield substantial economic andenvironmental benefits.

The HADCO FPA details a procedurethrough which HADCO will extensivelytest its sludge generated from the

treatment of wastewater associated withcircuit board manufacture. This datawill be reviewed by EPA, NH DES andNYS DEC, in order to determine if suchdata supports removal of the sludgefrom regulation as a hazardous waste, asdefined in the Resource Conservationand Recovery Act. Such a determinationby EPA, NH DES, and NYS DEC iswholly contingent upon HADCOshipping the sludge off-site forreclamation of copper contained in thesludge. The four (4) HADCO facilitiesthat are involved in this projectcollectively generate approximately 600tons per year of this sludge.

HADCO has agreed to direct any costsavings realized towards thereclamation of non-hazardous coppercontaining dusts that are currently landfilled. If no reclamation occurs, theproject would be terminated. HADCOmust also consider the installation ofsludge driers to reduce sludge volume atits New Hampshire facilities, if feasible.

This draft FPA provides an overviewof the parties’ intentions under the XLagreement. The public hearing onFebruary 12, 1997, is being held atHADCO’s facility in Owego, New York,to provide additional opportunity forpublic comment at the HADCO facilityincluded in this project that is mostremote from the HADCO Corporationheadquarters in New Hampshire. Theparties to the agreement will considerany public comments received at thehearing and during this 30-day publiccomment period, modify the agreementif necessary, and determine whether tosign a final agreement. If a finalagreement is reached, any legalmechanisms required to implement theagreement will be noticed publicly inaccordance with all state and federalregulations.

In addition to the EPA contacts listedin the section entitled ‘‘For FurtherInformation Contact,’’ above, questionsconcerning Project XL and the HADCOproject may also be directed to: KenMarschner, NH DES, (603) 271–2943,Mark Moroukian, NYS DEC, (518) 457–2553, or Lee Wilmot, HADCOCorporation, (603) 896–2424. Generalinformation about Project XL may beobtained by accessing EPA’s internetsite for Project XL, at http://www.epa.gov/Project XL. A copy of theHADCO FPA is posted at this location.

Dated: January 16, 1997.Jon Kessler,Director, Emerging Sectors and StrategiesDivision, Office of Policy, Planning, andEvaluation.[FR Doc. 97–1642 Filed 1–22–97; 8:45 am]BILLING CODE 6560–50–P

[FRL–5680–1]

Notice of Public Meetings on DrinkingWater Issues

Notice is hereby given that theEnvironmental Protection Agency (EPA)is holding a series of public meetings forpurposes of information exchange onissues related to the development ofregulations to control microbialpathogens and disinfection byproductsin drinking water, including an InterimEnhanced Surface Water TreatmentRule, a long-term Enhanced SurfaceWater Treatment Rule, a Stage 1Disinfectants/Disinfection ByproductsRule and a Stage 2 Disinfectants/Disinfection Byproducts Rule. TheAgency is developing this set of rules totake into account risk trade-offs betweenmicrobial contaminants and chemicalbyproducts of disinfection processes.

This series of meetings is anticipatedto continue through spring and may alsoinclude meetings at later dates duringthis year. EPA is hereby providingnotice of and inviting interestedmembers of the public to participate inthe meetings. As with all previousmeetings in this series, EPA isinstituting an open door policy to allowmembers of the public to attend thesemeetings. To assist EPA in managinglimitations on conference room seating,members of the public who areinterested in attending meetings arerequested to contact Elizabeth Corr ofEPA’s Office of Ground Water andDrinking Water. Ms. Corr’s phonenumber and e-mail address are providedin the final paragraph of this Notice.

As part of this series, a public meetingis scheduled for January 28 and 29 atthe office of RESOLVE, 2828Pennsylvania Avenue, NW.,Washington, DC, that will include abroad discussion of issues related to thedevelopment of the Interim EnhancedSurface Water Treatment Rule and theStage 1 Disinfectants/DisinfectionByproducts Rule. This meeting willinclude a summary of technicaldiscussions for purposes of providinginformation and analysis to stakeholdersto allow them to reach individualconclusions as to their roles andpositions regarding development of therules. The meeting will also includediscussion of EPA’s schedule fordevelopment of the rules and optionsfor proceeding. The January 28 and 29meeting will be preceded by a publicmeeting on January 27 on technicalissues related to drinking watertreatment processes with emphasis onenhanced coagulation andpredisinfection.


For additional information aboutthese or other meetings in this series orto be included on the mailing list toreceive notice of further meetings in thisseries, members of the public arerequested to contact Elizabeth Corr ofEPA’s Office of Ground Water andDrinking Water at (202) 260–8907 or bye-mail [email protected].

Dated: January 21, 1997.Cynthia C. Dougherty,Director, Office of Ground Water and DrinkingWater.[FR Doc. 97–1755 Filed 1–22–97; 8:45 am]BILLING CODE 6560–50–P

[FRL–5680–2]

National Advisory Council forEnvironmental Policy and Technology-Total Maximum Daily Load Committee;Public Meeting

AGENCY: Environmental ProtectionAgency (EPA).ACTION: Notice of public meeting.

SUMMARY: Under the Federal AdvisoryCommittee Act, PL 92463, EPA givesnotice of a three day meeting of theNational Advisory Council forEnvironmental Policy and Technology’s(NACEPT) Total Maximum Daily Load(TMDL) Committee. NACEPT providesadvice and recommendations to theAdministrator of EPA on a broad rangeof environmental policy issues. TheTMDL Committee has been charged toprovide recommendations for actionswhich will lead to a substantially moreeffective TMDL program. This meetingis being held to enable the Committeeand EPA to hear the views and obtainthe advice of a widely diverse group ofstakeholders in the national WaterProgram.

In conjunction with the three daymeeting, the FACA Committee membersand the EPA will host two meetingsdesigned to afford the general publicgreater opportunity to express its viewson TMDL and related water issues.DATES: The three day public meetingwill be held on Wednesday, February19–21, 1997, in Galveston, Texas at theGalveston Island Hilton Hotel, 5400Seawall Boulevard, Galveston, Texas.All sessions are scheduled for theCrystal Salon, Sections B and C. Themeeting on Wednesday, February 19,1997, begins at 1:00 p.m. withadjournment scheduled for 5:00 p.m.The meeting on Thursday, February 20,1997, begins at 9:00 p.m. withadjournment scheduled for 3:00 p.m.The closing day of the meeting is

Friday, February 21, 1997 from 9:00a.m. until 5:00 p.m.

The two public input sessions arescheduled in conjunction with the fullCommittee meeting in the samelocation. The first will occur onWednesday, February 19, 1997, from7:30–9:00 p.m. The second will occuron Thursday, February 20, 1997, from3:30–5:00 p.m.FUTURE MEETING DATES: The Committeehas scheduled additional meetings forthe following dates and locations:June 11–13, 1997 in Wisconsin

(Madison or Milwaukee)September 3–5, 1997 in Portland,

OregonJanuary 21–23, 1998 in Salt Lake City,

UtahADDRESSES: Materials or writtencomments may be transmitted to theCommittee through Corinne S. Wellish,Designated Federal Official, NACEPT/TMDL, U.S. EPA, Office of Water, Officeof Wetlands, Oceans, and Watersheds,Assessment and Watershed ProtectionDivision (4503F), 401 M Street, SW.,Washington, DC 20460.FOR FURTHER INFORMATION CONTACT:Corinne S. Wellish, Designated FederalOfficial for the Total Maximum DailyLoad Committee at 202–260–0740.

Dated: January 15, 1997.Corinne S. Wellish,Designated Federal Official.[FR Doc. 97–1645 Filed 1–22 97; 8:45 am]BILLING CODE 6560–50–P

[FRL–5679–8]

Science Advisory Board Notification ofPublic Advisory Committee Meeting

Pursuant to the Federal AdvisoryCommittee Act, Public Law 92–463,notice is hereby given that theEnvironmental Health Committee (EHC)of the Science Advisory Board (SAB)will meet on February 13–14, 1997 atthe Holiday Inn Georgetown, 2101Wisconsin Avenue NW, WashingtonD.C. 20007. The hotel telephone numberis (202) 338–4600. The meeting willstart at 9:00 a.m. and end no later than5:00 p.m. (Eastern Time) each day. Themeeting is open to the public. Due tolimited space, seating at the meetingwill be on a first-come basis.PURPOSE OF THE MEETING: The mainpurpose of the meeting is to discuss andreview the EPA’s Proposed Guidelinesfor Carcinogen Risk Assessment (EPA/600/P–92/003C, April 1996). TheCommittee’s review of the Guidelineswill include the following issues: (a)hazard characterization; (b) informationrequirements necessary to depart from

defaults; (c) dose response assessment;(d) margin of exposure (MoE) analysis;(e) human data; (f) NRCrecommendations for tumor dataanalysis; and (g) susceptibility factorsfor human variability.FOR FURTHER INFORMATION: PLEASENOTE THAT THIS DOCUMENTATIONIS NOT AVAILABLE FROM THE SAB.The Proposed Guidelines werepublished in their entirety in theFederal Register on April 23, 1996[61(79):17960–18011]. Electronic, disk,and paper copies are being madeavailable as follows: (a) An electronicversion is available for downloadthrough EPA’s Office of Research andDevelopment home page on the Internetat http://www.epa.gov/ORD/WebPubs/carcinogen ; (b) An electronic versionalso is available for download fromEPA’s Technology Transfer Network(TTN)/National Air Toxic’sClearinghouse (NATICH). The TTN is anetwork of electronic bulletin boardsdeveloped and operated by EPA’s Officeof Air Quality Planning and Standards.The service is free except for the cost ofthe phone call. Dial 919–541–5742 fordata transfer of up to 14,400 bits persecond. The TTN also is available on theInternet at TELENETttnbbs.rtpnc.epa.gov. For moreinformation on the operation of theTTN, contact the systems operator at919–541–5384; (c) To obtain a 3.5’’ diskin WordPerfect 5.1 format, contact ORDPublications Technology Transfer andSupport Division, National RiskManagement Laboratory, U.S.Environmental Protection Agency, 26W. Martin Luther King Drive,Cincinnati, OH 45268 (telephone: 513–569–7562; fax: 513–569–7566). Pleaseprovide your name, mailing address,document title, and the following EPAdocument number (EPA/600/P–92/003);(d) A paper copy is available for reviewat the EPA’s Headquarters Library(ORD’s Public Information Shelf), 401 MStreet, S.W., Washington, DC 20460,between the hours of 10:00 a.m. and2:00 p.m., Monday through Friday,except for Federal holidays, and at allEPA regional and laboratory libraries;and (e) Paper copies have been madeavailable to the U.S. GovernmentDepository Libraries. Through theDepository Library program,government publications are providedto over 50 regional depositoriesthroughout the United States and itsterritories. An additional 1,350depositories in the system choose toreceive select publications of interest tomeet local needs. Please check with thedepository library closest to you; (f)Paper copies are available for purchase


from the National Technical InformationService (NTIS) 5285 Port Royal Road,Springfield, VA 22161 (telephone: 703–487–4650; fax: 703–321–8547). Pleaseprovide the following number whenordering (PB96–157599). The cost is$35.

Members of the public desiringadditional technical information aboutthe Proposed Guidelines should contactDr. Jeanette Wiltse, US EPA (4304), 401M Street, SW, Washington DC 20460,telephone (202) 260–7317, fax (202)260–1036, or Internet at:[email protected]

Members of the public desiringadditional information about themeeting, including a draft agenda,should contact Ms. Mary Winston, StaffSecretary, Science Advisory Board(1400), US EPA, 401 M Street, SW,Washington DC 20460, telephone (202)260–8114, fax (202) 260–7118, orInternet at:[email protected] Anyonewishing to make an oral presentation atthe meeting must contact Mr. SamuelRondberg, Designated Federal Officialfor the EHC, in writing at the aboveaddress no later than 4:00 p.m.,February 5, 1997 via fax (202) 260–7118or via Internet at:[email protected]. Therequest should identify the name of theindividual who will make thepresentation and an outline of the issuesto be addressed. At least 35 copies ofany written comments to the Committeeare to be given to Mr. Rondberg no laterthan the time of the presentation fordistribution to the Committee and theinterested public. The Science AdvisoryBoard expects that the public statementspresented at its meetings will not berepetitive of previously submittedwritten statements. In general, eachindividual or group making an oralpresentation will be limited to a totaltime of ten minutes. Mr. Rondberg maybe contacted by telephone at (202) 260–2559.

Dated: January 13, 1997.Donald G. Barnes,Staff Director, Science Advisory Board.[FR Doc. 97–1643 Filed 1–22 97; 8:45 am]BILLING CODE 6560–50–P

FEDERAL COMMUNICATIONSCOMMISSION

[CC Docket No. 96–45; DA 97–88]

Federal-State Joint Board on UniversalService: Staff Workshops on ProxyCost Models

AGENCY: Federal CommunicationsCommission.

ACTION: Notice.

SUMMARY: On January 14 and 15, 1997,the federal and state staff of the Federal-State Joint Board on Universal Serviceconducted workshops regarding theselection of a proxy cost model. Thepurpose of the notice is to allowinterested parties to file comments onthe discussions at the workshops or tosupplement the record with regard toissues raised at the workshops.FOR FURTHER INFORMATION CONTACT:Astrid Carlson, Universal ServiceBranch, Accounting and AuditsDivision, Common Carrier Bureau,at(202) 530–6023.

SUPPLEMENTARY INFORMATION:1. On January 14 and 15, 1997, the

staff of the Federal-State Joint Board onuniversal service conducted workshopsrelating to the selection of a proxy costmodel for determining the cost ofproviding the service supported by theuniversal service support mechanism.The focus of the workshops was thethree proxy cost models that have beensubmitted for consideration at theworkshops: (1) The Benchmark CostProxy Model (BCPM), submitted by U SWest, Sprint, and Pacific Bell; (2) theHatfield Model, Version 2.2, Release 2,developed by Hatfield Associates,submitted by AT&T Corp. and MCITelecommunications Corp.; and (3) theTelecom Economic Cost Model,developed by Ben Johnson Associates,Inc, submitted by the New JerseyDivision of the Ratepayer Advocate.

2. Interested parties may wish tocomment on the discussions in theworkshops or to supplement the recordwith regard to issues raised at theworkshops. Commenters are requestedto provide, as a preface to theircomments, a brief summary not toexceed three single-spaced pages intotal. The comments and commentsummary should be filed on or beforeJanuary 24, 1997. Commenters must filean original and four copies of theircomments with the Office of theSecretary, Federal CommunicationsCommission, Room 222, 1919 M Street,NW., Washington, DC 20554. Commentsshould reference CC Docket No. 96–45.Commenters must also serve commentson the Federal-State Joint Board andJoint Board staff in accordance with theattached service list. Commentersshould also send four copies to SherylTodd, Universal Service Branch,Accounting an Audits Division,Common Carrier Bureau, 2100 M Street,NW., Room 8611, Washington, DC20554. In addition, commenters shouldsend one copy of their comments to theCommission’s copy contractor,

International Transcription Service,Inc., Room 140, 2100 M Street, NW.,Washington, DC 20037. Comments willbe available for public inspection duringregular business hours in the FCCReference Center, Room 239, 1919 MStreet, NW., Washington, DC 20554.

3. Parties are also asked to submitcomments on diskette. Such diskettesubmissions would be in addition toand not a substitute for the formal filingrequirements addressed above. Partiessubmitting diskettes should submitthem to Sheryl Todd, Universal ServiceBranch, Accounting an Audits Division,Common Carrier Bureau, 2100 M Street,NW., Room 8611, Washington, DC20554. Such a submission should be ona 3.5 inch diskette in an IBM compatibleformat using WordPerfect 5.1 forWindows software in a ‘‘read only’’mode. The diskette should be clearlylabelled with the party’s name,proceeding, and date of submission. Thediskette should be accompanied by acover letter.Federal Communications Commission.Kathleen B. Levitz,Deputy Bureau Chief, Common CarrierBureau.[FR Doc. 97–1606 Filed 1–22–97; 8:45 am]BILLING CODE 6712–01–P

[CC Docket No. 90–571; DA 96–2158]

Telecommunications Relay Services;FCC Form 431

AGENCY: Federal CommunicationsCommission.ACTION: Notice.

SUMMARY: Notice is hereby given that inan Order on Telecommunications RelayServices and the Americans withDisabilities Act of 1990 (Order), CCDocket No. 90–571, adopted December17, 1996, and released December 20,1996, the Commission calculated thecontribution factor for the period April26, 1997 through March 26, 1998 for theTelecommunications Relay Services(TRS) Fund, and approved the TRSpayment formula for the 1997 calendaryear. The Commission also directed theNational Exchange Carrier Association(NECA), the TRS Fund Administrator, totake certain actions to remedy aprojected shortfall in the 1996 TRSFund. In addition, the Commissionadopted the 1997 TRS Fund Worksheet,FCC Form 431, subject to approval bythe Office of Management and Budget(OMB).FOR FURTHER INFORMATION CONTACT:Andy Firth, Network Services Division,Common Carrier Bureau, (202) 418–1898 voice, (202) 418–2224 TTY, or


James Lande, Industry AnalysisDivision, Common Carrier Bureau, (202)418–0948.SUPPLEMENTARY INFORMATION: 1. Theabove actions were taken pursuant to§ 64.604(c)(4)(iii) of the Commission’sRules, 47 CFR 64.604(c)(4)(iii). Pursuantto the Order, and subject to approval byOMB, the 1997 TRS Fund Worksheet,FCC Form 431, shall be effective for theperiod April 26, 1997 through March 26,1998. All subject carriers are required tofile the form annually and contribute tothe TRS Fund. The TRS Fundreimburses TRS providers for the costsof providing interstate TRS. TheCommission’s rules provide that theTRS Fund Worksheet shall be publishedin the Federal Register. See 47 CFR64.604(c)(4)(iii)(B).

2. Public reporting burden for thiscollection of information is estimated toaverage 2 hours per response, includingthe time for reviewing instructions,searching existing data sources,gathering and maintaining the dataneeded, and completing and reviewingthe collection of information. Sendcomments regarding this burdenestimate or any other aspect of thiscollection of information, includingsuggestions for reducing this burden, tothe Federal CommunicationsCommission, Records ManagementBranch, Room 234, PaperworkReduction Project (3060–0536),Washington, D.C. 20554 and to theOffice of Management and Budget,Paperwork Reduction Project (3060–0536), Washington, D.C. 20503.Federal Communications Commission.Geraldine Matise,Chief, Network Services Division, CommonCarrier Bureau.[FR Doc. 97–1607 Filed 1–22–97; 8:45 am]BILLING CODE 6712–01–P

FEDERAL ELECTION COMMISSION


AGENCY: Federal Election Commission,Billing Code: 6715–01–M.* * * * *DATE & TIME: Tuesday, January 28, 1997at 10:00 a.m.PLACE: 999 E Street, N.W., Washington,D.C.STATUS: This meeting will be closed tothe Public.ITEMS TO BE DISCUSSED:Compliance matters pursuant to 2 U.S.C.

§ 437g.Audits conducted pursuant to 2 U.S.C.

§ 437g, § 438(b), and Title 26, U.S.C.Matters concerning participation in civil

actions or proceedings or arbitration.

Internal personnel rules and procedures ormatters affecting a particular employee.

* * * * *PREVIOUSLY ANNOUNCED DATE & TIME:Thursday, January 30, 1997 at 10:00 a.m.

Meeting Open to the Public.This Meeting has been cancelled.

PERSON TO CONTACT FOR INFORMATION:Mr. Ron Harris, Press Officer,Telephone: (202) 219–4155.Marjorie W. Emmons,Secretary of the Commission.[FR Doc. 97–1735 Filed 1–21–97; 11:43 am]BILLING CODE 6715–01–M

FEDERAL MARITIME COMMISSION

Notice of Agreement(s) Filed

The Commission hereby gives noticeof the filing of the followingagreement(s) under the Shipping Act of1984.

Interested parties can review or obtaincopies of agreements at the Washington,DC offices of the Commission, 800North Capitol Street, N.W., Room 962.Interested parties may submit commentson an agreement to the Secretary,Federal maritime Commission,Washington, DC 20573, within 10 daysof the date this notice appears in theFederal Register.

Agreement No.: 232—011564.Title: Concorde/Nordana Line Slot

Charter and Sailing AgreementParties:Concorde Line (‘‘Concorde’’)Nordana Line AS (‘‘Nordana’’)Snyopsis: The Proposed Agreement

would permit Concorde to charter spaceto Nordana aboard Concorde’s vessels inthe trade between United States Gulf ofMexico ports, and inland U.S. points viasuch ports, and ports and inland pointsin Guatemala, Honduras, Nicaragua, andEl Salvador. The parties may also agreeupon Concorde’s sailing schedule andports to be served in the Agreementtrade.

Agreement No.: 224–002550–003.Title: Port of New Orleans/Sea-Land

Terminal Lease Agreement.Parties:The Board of Commissioners of the

Port of New Orleans (‘‘Port’’)Sea-Land Service, Inc.Synposis: The proposed agreement

modification establishes a procedureamong the tenants who lease terminalsalong the waterway at France Road forallowing berthing of each others’ vesselsat different berths.

Agreement No.: 224–200983–001.Title: Port of San Diego-Tenth Avenue

Cold Storage Company OperatingContract.

Parties:San Diego Unified Port District

(‘‘District’’)Tenth Avenue Cold Storage Company.Synopsis: Under the proposed

agreement, the District retains TenthAvenue Cold Storage Company as anindependent contractor to operate andmaintain the District’s cool/cold storagefacility at its Tenth Avenue MarineTerminal.

Dated January 17, 1997.By Order of the Federal Maritime

Commission.Ronald D. Murphy,Assistant Secretary.[FR Doc. 97–1632 Filed 1–22–97; 8:45 am]BILLING CODE 6730–01–M

FEDERAL RESERVE SYSTEM

Change in Bank Control Notices;Acquisitions of Shares of Banks orBank Holding Companies

The notificants listed below haveapplied under the Change in BankControl Act (12 U.S.C. 1817(j)) and §225.41 of the Board’s Regulation Y (12CFR 225.41) to acquire a bank or bankholding company. The factors that areconsidered in acting on the notices areset forth in paragraph 7 of the Act (12U.S.C. 1817(j)(7)).

The notices are available forimmediate inspection at the FederalReserve Bank indicated. Once thenotices have been accepted forprocessing, they will also be availablefor inspection at the offices of the Boardof Governors. Interested persons mayexpress their views in writing to theReserve Bank indicated for that noticeor to the offices of the Board ofGovernors. Comments must be receivednot later than February 5, 1997.

A. Federal Reserve Bank of Dallas(Genie D. Short, Vice President) 2200North Pearl Street, Dallas, Texas 75201-2272:

1. Edwin and Mittis Bowers, Palacios,Texas; to acquire an additional .18percent, for a total of 14.95 percent ofthe voting shares of City StateBancshares, Inc., Palacios, Texas, andthereby indirectly acquire City StateBank, Palacios, Texas.

Board of Governors of the Federal ReserveSystem, January 16, 1997.Jennifer J. Johnson,Deputy Secretary of the Board.[FR Doc. 97–1583 Filed 1–22–97; 8:45 am]BILLING CODE 6210–01–F


Formations of, Acquisitions by, andMergers of Bank Holding Companies

The companies listed in this noticehave applied to the Board for approval,pursuant to the Bank Holding CompanyAct of 1956 (12 U.S.C. 1841 et seq.)(BHC Act), Regulation Y (12 CFR Part225), and all other applicable statutesand regulations to become a bankholding company and/or to acquire theassets or the ownership of, control of, orthe power to vote shares of a bank orbank holding company and all of thebanks and nonbanking companiesowned by the bank holding company,including the companies listed below.

The applications listed below, as wellas other related filings required by theBoard, are available for immediateinspection at the Federal Reserve Bankindicated. Once the application hasbeen accepted for processing, it will alsobe available for inspection at the officesof the Board of Governors. Interestedpersons may express their views inwriting on the standards enumerated inthe BHC Act (12 U.S.C. 1842(c)). If theproposal also involves the acquisition ofa nonbanking company, the review alsoincludes whether the acquisition of thenonbanking company complies with thestandards in section 4 of the BHC Act,including whether the acquisition of thenonbanking company can ‘‘reasonablybe expected to produce benefits to thepublic, such as greater convenience,increased competition, or gains inefficiency, that outweigh possibleadverse effects, such as undueconcentration of resources, decreased orunfair competition, conflicts ofinterests, or unsound banking practices’’(12 U.S.C. 1843). Unlessotherwise noted, nonbanking activitieswill be conducted throughout theUnited States.

Unless otherwise noted, commentsregarding each of these applicationsmust be received at the Reserve Bankindicated or the offices of the Board ofGovernors not later than February 15,1997.

A. Federal Reserve Bank of Cleveland(R. Chris Moore, Senior Vice President)1455 East Sixth Street, Cleveland, Ohio44101-2566:

1. Commercial Bancshares, Inc., WestLiberty, Kentucky; to become a bankholding company by acquiring 100percent of the voting shares ofCommercial Bank, Warren,Pennsylvania.

2. Northwest Bancorp, MHC, Warren,Pennsylvania; to merge with NorthwestBancorp, Inc., Warren, Pennsylvania,and thereby indirectly acquireNorthwest Savings Bank, Warren,Pennsylvania.

In connection with this application,Northwest Bancorp, Inc., has alsoapplied to become a bank holdingcompany by acquiring 100 percent ofthe voting shares of Northwest SavingsBank, Warren, Pennsylvania.

B. Federal Reserve Bank of Atlanta(Lois Berthaume, Vice President) 104Marietta Street, N.W., Atlanta, Georgia30303-2713:

1. Newnan Holdings, Inc., Newnan,Georgia; to merge with Tara BanksharesCorporation, Riverdale, Georgia, andthereby indirectly acquire Tara StateBank, Riverdale, Georgia.

Board of Governors of the Federal ReserveSystem, January 16, 1997.Jennifer J. Johnson,Deputy Secretary of the Board.[FR Doc. 97–1582 Filed 1–22–97; 8:45 am]BILLING CODE 6210–01–F


AGENCY HOLDING THE MEETING: Board ofGovernors of the Federal ReserveSystem.

TIME AND DATE: 11:00 a.m., Monday,January 27, 1997.

PLACE: Marriner S. Eccles FederalReserve Board Building, C Streetentrance between 20th and 21st Streets,N.W., Washington, D.C. 20551.

STATUS: Closed.MATTERS TO BE CONSIDERED:

1. Personnel actions (appointments,promotions, assignments,reassignments, and salary actions)involving individual Federal ReserveSystem employees.

2. Any items carried forward from apreviously announced meeting.

CONTACT PERSON FOR MORE INFORMATION:Mr. Joseph R. Coyne, Assistant to theBoard; (202) 452–3204. You may call(202) 452–3207, beginning atapproximately 5 p.m. two business daysbefore this meeting, for a recordedannouncement of bank and bankholding company applicationsscheduled for the meeting.

Dated: January 17, 1997.Jennifer J. Johnson,Deputy Secretary of the Board.[FR Doc. 97–1714 Filed 1–22–97; 4:58 pm]BILLING CODE 6210–01–P

DEPARTMENT OF HEALTH ANDHUMAN SERVICES

Agency for Health Care Policy andResearch

Notice of Advisory Committee Meeting

In accordance with section 10(a) ofthe Federal Advisory Committee Act (5U.S.C., Appendix 2), announcement ismade of the following advisorycommittee scheduled to meet during themonth of February 1997:

Name: Health Services Research ReviewSubcommittee.

Date and Time: February 19, 1997, 8:00a.m.

Place: Hyatt Regency Bethesda, OneBethesda Metro Center, Susquehanna/SevernConference Room, Bethesda, Maryland20814.

Open February 19, 1997, 8:00 a.m. to 8:15a.m. Closed for remainder of meeting.

Purpose: This Subcommittee is chargedwith the initial review of grant applicationsproposing analytical and theoretical researchon costs, quality, access, and efficiency of thedelivery of health services for the researchgrant program administered by the Agencyfor Health Care Policy and Research(AHCPR).

Agenda: The open session of the meetingon February 19, from 8:00 a.m. to 8:15 a.m.,will be devoted to a business meetingcovering administrative matters. During theclosed session, the panel will be reviewingand discussing grant applications dealingwith health services research issues. Inaccordance with the Federal AdvisoryCommittee Act, section 10(d) of 5 U.S.C.,Appendix 2 and 5 U.S.C., 552b(c)(6), theAdministrator, AHCPR, has made a formaldetermination that this latter session will beclosed because the discussions are likely toreveal personal information concerningindividuals associated with the grantapplications. This information is exemptfrom mandatory disclosure.

Anyone wishing to obtain a roster ofmembers or other relevant informationshould contact Carmen Johnson, Agency forHealth Care Policy and Research, Suite 400,2101 East Jefferson Street, Rockville,Maryland 20852, Telephone (301) 594–1449x1613.

Agenda items for this meeting are subjectto change as priorities dictate.

Dated: January 13, 1997.Clifton R. Gaus,Administrator.[FR Doc. 97–1599 Filed 1–22–97; 8:45 am]BILLING CODE 4160–00–M

Centers for Disease Control andPrevention

Advisory Committee to the Director,Centers for Disease Control andPrevention; Meeting

In accordance with section 10(a)(2) ofthe Federal Advisory Committee Act


(Pub. L. 92–463), the Centers for DiseaseControl and Prevention (CDC)announces the following committeemeeting.

Name: Advisory Committee to the Director,CDC.

Time and Date: 8:30 a.m.-3 p.m., February7, 1997.

Place: CDC, Auditorium A, 1600 CliftonRoad, NE, Atlanta, Georgia 30333.

Status: Open to the public, limited only bythe space available.

Purpose: This committee advises theDirector, CDC, on policy issues and broadstrategies that will enable CDC, the Nation’sprevention agency, to fulfill its mission ofpromoting health and quality of life bypreventing and controlling disease, injury,and disability. The Committee recommendsways to incorporate prevention activitiesmore fully into health care. It also providesguidance to help CDC work more effectivelywith its various constituents, in both theprivate and public sectors, to makeprevention a practical reality.

Matters To Be Discussed: Agenda itemswill include updates from CDC Director,David Satcher, M.D., Ph.D., followed bycommittee discussion on developing the nextgeneration of public health professionals andon CDC’s role in genetics and diseaseprevention.

Agenda items are subject to change aspriorities dictate.

Contact Person for More Information:Linda Kay McGowan, Acting ExecutiveSecretary, Advisory Committee to theDirector, CDC, 1600 Clifton Road, NE, M/SD–24, Atlanta, Georgia 30333, telephone 404/639–7080.

Dated: January 15, 1997.Carolyn J. Russell,Director, Management Analysis and ServicesOffice, Centers for Disease Control andPrevention (CDC).[FR Doc. 97–1615 Filed 1–22–97; 8:45 am]BILLING CODE 4163–18–P

Hanford Thyroid Morbidity StudyAdvisory Committee; Meeting

In accordance with section 10(a)(2) ofthe Federal Advisory Committee Act(Pub. L. 92–463), the Centers for DiseaseControl and Prevention (CDC)announces the following meeting.

Name: Hanford Thyroid Morbidity StudyAdvisory Committee.

Times and Dates: 7 p.m.–9 p.m., February6, 1997. 9 a.m.–5 p.m., February 7, 1997.

Place: Doubletree Suites, 16500Southcenter Parkway, Seattle, Washington98188, telephone 206/575–8220.

Status: Open to the public, limited only bythe space available.

Purpose: This committee is charged withproviding advice and guidance to theDirector, CDC, regarding the scientific meritand direction of the Hanford ThyroidMorbidity Study.

The Committee will review development ofthe study protocol and recommend changes

of scientific merit to CDC, and advise on theconduct of a full-scale epidemiologic studyusing the approved protocol. During theconduct of the full-scale epidemiologicstudy, the Committee will advise CDC on thedesign and conduct of the study and analysisof the results.

Matters to be Discussed: The Committeewill discuss the progress and updates on thestatus of various components of the HanfordThyroid Disease Study being conducted bythe Fred Hutchinson Cancer Research Center.Agenda items include: National Center forEnvironmental Health (NCEH) activities onthe progress of current studies, an update onthe Native American component, and publicinvolvement activities. On February 6, at 7p.m., a public session will be held to updatethe public on the status of the HanfordThyroid Disease Study, and to allow thosedirectly affected by the study to voice theiropinions and concerns.

Agenda items are subject to change aspriorities dictate.

Contact Person for More Information:Nadine Dickerson, Program Analyst,Radiation Studies Branch, Division ofEnvironmental Hazards and Health Effects,NCEH, CDC, Buford Highway, NE, (F–35),Atlanta, Georgia 30341–3724, telephone 770/488–7040, FAX 770/488–7044.

Dated: January 15, 1997.Carolyn J. Russell,Director, Management Analysis and ServicesOffice, Centers for Disease Control andPrevention (CDC).[FR Doc. 97–1614 Filed 1–22–97; 8:45 am]BILLING CODE 4163–18–P

Health Care Financing Administration

Submitted for Collection of PublicComment: Submission for OMBReview

AGENCY: Health Care FinancingAdministration, HHS [HCFA–8003]

In compliance with the requirementof section 3506(c)(2)(A) of thePaperwork Reduction Act of 1995, theHealth Care Financing Administration(HCFA), Department of Health andHuman Services, has submitted to theOffice of Management and Budget(OMB) the following proposals for thecollection of information. Interestedpersons are invited to send commentsregarding this burden estimate or anyother aspect of this collection ofinformation, including any of thefollowing subjects: (1) The necessity andutility of the proposed informationcollection for the proper performance ofthe agency’s functions; (2) the accuracyof the estimated burden; (3) ways toenhance the quality, utility, and clarityof the information to be collected; and(4) the use of automated collectiontechniques or other forms of informationtechnology to minimize the informationcollection burden.

1. Type of Request: Extension,without change, of a previouslyapproved collection for which approvalhas expired; Title of InformationCollection: Home and Community-Based Services Waiver Requests; FormNo.: HCFA–8003; Use: Under aSecretarial waiver, States may offer awide array of home and community-based services to individuals whowould otherwise requireinstitutionalization. States requesting awaiver must provide certain assurances,documentation and cost & utilizationestimates which are reviewed, approvedand maintained for the purpose ofidentifying/verifying States’ compliancewith such statutory and regulatoryrequirements; Frequency: Other—Whena State requests a waiver or amendmentto a waiver; Affected Public: State, local,or tribal government; Number ofRespondents: 50; Total AnnualResponses: 140; Total Annual Hours:8,200.

To request copies of the proposedpaperwork collection referenced above,E-mail your request, including youraddress, to [email protected], or callthe Reports Clearance Office on (410)786–1326. Written comments andrecommendations for the proposedinformation collections should be sentwithin 30 days of this notice directly tothe HCFA Paperwork Clearance Officerdesignated at the following address:OMB Human Resources and HousingBranch, Attention: Allison Eydt, NewExecutive Office Building, Room 10235,Washington, D.C. 20503.

Dated: January 15, 1997.Edwin J. Glatzel,Director, Management Analysis and PlanningStaff, Office of Financial and HumanResources, Health Care FinancingAdministration.[FR Doc. 97–1587 Filed 1–22–97; 8:45 am]BILLING CODE 4120–03–P



Notice of Submission of ProposedInformation Collection to OMB

AGENCY: Office of Administration, HUD.ACTION: Notice.

SUMMARY: The proposed informationcollection requirement described belowhas been submitted, as required by thePaperwork Reduction Act, to the Officeof Management and Budget (OMB) foremergency review and approval byJanuary 24, 1997. The Department is


soliciting public comments on thesubject proposal.DATES: The due date for comments is:January 24, 1997.ADDRESSES: Interested persons areinvited to submit comments regardingthis proposal. Comments should refer tothe proposal by name and should besent to: Joseph F. Lackey, Jr., HUD DeskOfficer, Office of Management andBudget, New Executive Office Building,Washington, DC 20503.FOR FURTHER INFORMATION CONTACT: KayF. Weaver, Reports Management Officer,Department of Housing and UrbanDevelopment, 451 Seventh Street, SW,Washington, DC 20410, telephone (202)708–0050. This is not a toll-free number.Copies of available documents may beobtained from Ms. Weaver.SUPPLEMENTARY INFORMATION: ThisNotice informs the public that theDepartment of Housing and UrbanDevelopment (HUD) has submitted toOMB, for emergency processing, aninformation collection package withrespect to a proposed ‘‘Native AmericanHousing Block Grant Program—Noticeof Transition Requirements andNegotiated Rulemaking’’ [Docket No.FR–4170–N–02]. HUD seeks toimplement portions of section 106 of theNative American Housing Assistanceand Self-Determination Act of 1996(NAHASDA) (Pub. L. 104–330,approved October 26, 1996), whichrequires HUD to publish a noticeestablishing any requirements necessaryto provide for the transition from theprovision of assistance for Indian tribesand Indian housing authorities underthe United States Housing Act of 1937and other related provisions of law tothe provision of assistance inaccordance with NAHASDA. Theinformation collection requirements ofthe notice concern the submission ofIndian housing plans (IHPs), aprerequisite to funding under the newprogram. The requirements of the noticeare for transition purposes only, andthus, are temporary in nature. The finalrequirements will be contained inregulations that are under development.

The Department has submitted theproposal for the collection ofinformation, as described below, toOMB for review, as required by thePaperwork Reduction Act (44 USCChapter 35):

(1) Title of the information collectionproposal:

Native American Housing Block GrantProgram—Notice of TransitionRequirements and NegotiatedRulemaking

(2) Summary of the collection ofinformation:

The collection of information presentstransition requirements for thepreparation and submission by, or onbehalf of, Indian tribes of IndianHousing Plans (IHPs), which are aprerequisite for any distribution offunds under NAHASDA. In general, theIHP must contain a description of thehousing needs of the tribe, plannedactivities to address those needs, and adescription of how the activities will becarried out. The IHP is required bystatute to have two main components, a5-year plan and a 1-year plan.

(3) Description of the need for theinformation and its proposed use:

NAHASDA eliminates severalseparate funding programs for Indianhousing and establishes instead a singleIndian Housing Block Grant Program, tobe effective beginning with FY 1998.Section 106 of NAHASDA requires HUDto establish any requirements necessaryto provide for the transition from theprovision of assistance under theeliminated programs to the provision ofassistance under the new law. In orderto assure that assistance for Indianhousing activities is not interrupted,IHPs must be prepared and submittedwell before FY 1998 funds are madeavailable, and this collection ofinformation provides the temporaryrequirements necessary for thepreparation of the first IHPs under thenew program. Permanent requirementswill be contained in regulationsdeveloped to implement NAHASDA.

(4) Description of the likelyrespondents, including the estimatednumber of likely respondents, andproposed frequency of response to thecollection of information:

Respondents will be Indian tribes ortribally designated housing entitiesselected by tribal governments to act ontheir behalf.

The estimated number of likelyrespondents is 350. As to frequency ofresponses, there will only be oneresponse submitted under thesetemporary, transitional requirements.Permanent requirements will beincluded in program regulations to bedeveloped, for which a separateinformation approval will be obtained.

(5) Estimate of the total reporting andrecordkeeping burden that will resultfrom the collection of information:

Number of respondents: 350.Burden hours per response: 120.Frequency of responses: 1.Total Estimated Burden Hours:

42,000.Authority: Section 3507 of the Paperwork

Reduction Act of 1995, 44 U.S.C. Chapter 35,as amended.

Dated: January 17, 1997.Kay Weaver,Acting Director, IRM Policy and ManagementDivision.[FR Doc. 97–1716 Filed 1–21–97; 9:58 am]BILLING CODE 4210–01–P


Fish and Wildlife Service

Notice of Receipt of Applications forPermit

The following applicants haveapplied for a permit to conduct certainactivities with endangered species. Thisnotice is provided pursuant to Section10(c) of the Endangered Species Act of1973, as amended (16 U.S.C. 1531, etseq.):PRT–824228Applicant: Betty Jo Young, West Fork, AK.

The applicant requests a permit toreexport and reimport tiger (Pantheratigris), and progeny of the animalscurrently held by the applicant and anyanimals acquired in the United States bythe applicant to/from worldwidelocations to enhance the survival of thespecies through conservation education.This notification covers activitiesconducted by the applicant over a threeyear period.PRT–822708Applicant: Steven Gruber, Miramar, FL.

The applicant requests a permit toimport 8 Jamaican boas (Epicratessubflavus) held in captivity in Jamaicafor the purpose of enhancement of thesurvival of the species throughpropagation.

Written data or comments should besubmitted to the Director, U.S. Fish andWildlife Service, Office of ManagementAuthority, 4401 North Fairfax Drive,Room 430, Arlington, Virginia 22203and must be received by the Directorwithin 30 days of the date of thispublication.

Documents and other informationsubmitted with these applications areavailable for review, subject to therequirements of the Privacy Act andFreedom of Information Act, by anyparty who submits a written request fora copy of such documents to thefollowing office within 30 days of thedate of publication of this notice: U.S.Fish and Wildlife Service, Office ofManagement Authority, 4401 NorthFairfax Drive, Room 430, Arlington,Virginia 22203. Phone: (703/358–2104);FAX: (703/358–2281).


Dated: January 17, 1997.Mary Ellen Amtower,Acting Chief, Branch of Permits, Office ofManagement Authority.[FR Doc. 97–1669 Filed 1–22 97; 8:45 am]BILLING CODE 4310–55–P

Availability of an EnvironmentalAssessment and Receipt of anApplication for a Permit To AllowIncidental Take of Threatened andEndangered Species by WeyerhaeuserCompany on Portions of its Lands inLane, Linn, Benton, and DouglasCounties, Oregon

AGENCY: Fish and Wildlife Service,Interior.ACTION: Notice of availability.

SUMMARY: The Weyerhaeuser Companyhas applied to the U.S. Fish andWildlife Service and the NationalMarine Fisheries Service (collectively,the Services) for an incidental takepermit pursuant to section 10(a)(1)(B) ofthe Endangered Species Act of 1973, asamended (Act). They have alsorequested approval of an unlistedspecies agreement covering otherspecies which may be found in theplanning area. The application has beenassigned U.S. Fish and Wildlife Servicepermit number PRT–823550 andNational Marine Fisheries Servicepermit number P626. The Services alsoannounce the availability of anEnvironmental Assessment(Assessment) for the proposed issuanceof the incidental take permit. Allcomments received will become part ofthe public record and may be released.This notice is provided pursuant tosection 10(c) of the Act and NationalEnvironmental Policy Act regulations(40 CFR 1506.6).DATES: Written comments on the permitapplication, Assessment, and associateddocuments (see ADDRESSES below)should be received 60 days from thedate of this publication.ADDRESSES: Comments regarding theapplication, Assessment, and associateddocuments (a Habitat Conservation Plan[Plan] and Implementing Agreement) orrequests for those documents, should beaddressed to Curt Smitch, U.S. Fish andWildlife Service, Pacific NorthwestHabitat Conservation Plan Program,3773 Martin Way East, Building C, Suite101, Olympia, Washington 98501.Please refer to permit number PRT–823550 when submitting comments.Individuals seeking copies of theapplication package should immediatelycontact the above office.FOR FURTHER INFORMATION CONTACT:Mr.David J. Hirsh, U.S. Fish and Wildlife

Service, or Mr. Steve Landino, NationalMarine Fisheries Service, at the aboveaddress; telephone (360) 534–9330.SUPPLEMENTARY INFORMATION: Undersection 9 of the Act and itsimplementing regulations, ‘‘taking’’ ofthreatened and endangered species isprohibited. However, the Services,under limited circumstances, may issuepermits to take threatened orendangered wildlife species if suchtaking is incidental to, and not thepurpose of, otherwise lawful activities.Regulations governing permits forthreatened and endangered species arecodified in 50 CFR 17.22 and 17.32 and222.2.

The Weyerhaeuser Company hasaddressed, in its Plan, speciesconservation and ecosystemmanagement on approximately 400,000acres of land in the Willamette Valleyand foothills of the Central CascadeMountains and Coast Ranges of Oregon.The subject ownership occurs in twolargely contiguous blocks with someportions in a ‘‘checkerboard’’ patternwith other Federal and non-Federalland. The proposed Plan would beimplemented for 40 years with theServices retaining the option to extendthe term for up to four additional ten-year periods.

The proposed Plan addresses, in threetiers, the species for which theWeyerhaeuser Company seeks coverageunder section 10 of the Act. The firsttier includes certain species currentlylisted or proposed for listing; thosespecies are named below. The secondtier includes presently unlisted speciesthat are associated with habitats that areaddressed through various measures inthe proposed Plan. The third tierincludes presently unlisted species thatare associated with older, upland,interior forests. Tier 1 and 2 specieswould be covered upon approval of thePlan by the Services. Tier 3 speciescould become covered if theWeyerhaeuser Company can show thatthe proposed Plan benefits the speciesand those benefits have led to presencein the Plan area.

The Weyerhaeuser Company isrequesting a permit for the incidentaltake of the northern spotted owl (Strixoccidentalis caurina) which wouldoccur as a result of timber harvest andrelated activities within the individualportions of the owl sites present on thesubject property. There are currentlymore than 160 owl sites that impactWeyerhaeuser Company operationswithin the 400,000-acre planning area.The Weyerhaeuser Company plans toavoid the take of the marbled murrelet(Brachyramphus marmoratus

marmoratus), but has includedmurrelets in the permit application incase some unanticipated incidental takeoccurs. The Weyerhaeuser Company hasalso included the Umpqua cutthroattrout (Oncorhyncus clarki clarki),American peregrine falcon (Falcoperegrinus), Columbian whitetailed deer(Odocoileus virginianus leucurus), baldeagle (Haliaeetus leucocephalus),Aleutian Canada goose (Brantacanadensis leucopareia), and Oregonchub (Oregonichthys crameri) in thepermit application to covercircumstances where these species mayoccur on the subject property and couldat some point be subject to take.

The Plan is designed to complementmeasures being implemented on Federallands under the Northwest Forest Plan,and includes various forms ofminimization and mitigation measureswhich are integral parts of the Plan. Itincludes a schedule for earlysuccessional forest types to be providedacross the landscape during the entirecourse of plan implementation.Mitigation for other presently listedspecies and species proposed for listinginclude specific managementprescriptions for those species. Forexample, the strategy for the northernspotted owl was developed to facilitateconnectivity between the Federal LateSuccessional Reserves in the OregonCascades and Coast Ranges. In additionto the specific measures for listed andproposed species, the Plan proposes acomprehensive riparian managementstrategy, the protection of specialbiotope areas such as forested wetlands,mineral springs, talus slopes, and caves(among others), supplemental habitatprotection for selected species ofconcern such as pond habitat for thenorthwestern pond turtle, andreproductive habitat around known nestsites for golden eagles and osprey.

Minimum interim prescriptions areprovided for riparian and wetland areas,and prescription development throughWatershed Analysis processes accordingto Washington State regulations willalso be completed. Specificprescriptions will also be implementedfor the management of areas, such asroads and steep slopes, that arevulnerable to degrading events.

The Assessment considers fouralternatives, including the proposedPlan and the no-action alternatives.Under Alternative A, the no-actionalternative, the Weyerhaeuser Companywould avoid the take of any and allFederally listed species and no permitwould be issued. Under Alternative C,conservation of the northern spottedowl and marbled murrelet would beimplemented to minimize and mitigate


for the effects of authorized take of onlythose two species. Under Alternative D,the applicant would manage theownership based on standards andguidelines for Matrix land under theNorthwest Forest Plan. Alternative B,the Proposed Habitat Conservation PlanAlternative, would provide minimizingand mitigating measures for proposedtake of the listed and currently proposedspecies mentioned above. In addition,protection for unlisted species would beprovided through the retention ofhabitat structures from harvested standsinto the subsequent rotation, bufferingof habitat biotopes, supplementalhabitat management, and throughoverall landscape level managementgoals.

Authority: 16 U.S.C. 1531–1544, and 4201–4245.

Dated: January 16, 1997.Thomas J. Dwyer,Acting Regional Director, Region 1, Portland,Oregon.[FR Doc. 97–1601 Filed 1–22–97; 8:45 am]BILLING CODE 4310–55–P

Availability of Amended EnvironmentalAssessment and Receipt ofApplication for Amendment ToPreviously Issued Incidental TakePermit From Sage DevelopmentCompany, LLC, Daphne, AL

AGENCY: Fish and Wildlife Service,Interior.ACTION: Notice.

SUMMARY: Sage Development Company,LLC, (Sage) seeks an amendment to theirpreviously issued incidental take permit(ITP), PRT–811416, from the Fish andWildlife Service (Service), pursuant toSection 10(a)(1)(B) of the EndangeredSpecies Act of 1973 (16 U.S.C. 1531 etseq.) (Act), as amended. The ITPauthorizes for a period of 30 years theincidental take of an endangeredspecies, the Alabama beach mouse(Peromyscus polionotus ammobates),known to occupy a 25.7-acre tract ofland owned by Sage on the Fort MorganPeninsula, Baldwin County, Alabama.Sage proposes to expand the originalproject, known as The Dunes, by 9.6acres to occupy a total project area of35.3 acres, and expand construction toinclude a total of 4 condominiumcomplexes, 50 single family/duplex lots,their associated landscaped grounds andparking areas, recreational amenities,and dune walkover structures. Theoriginally permitted project included 3condominium complexes, and 38 singlefamily/duplex lots.

The Service also announces theavailability of a supplement to the May

15, 1996, environmental assessment(EA) and an amended habitatconservation plan (HCP) for the revisedincidental take. Copies of the EA and/or HCP may be obtained by making arequest to the Regional Office (seeADDRESSES). This notice also advises thepublic that the Service has made apreliminary determination that re-issuing the ITP with the requestedamendment is not a major Federalaction significantly affecting the qualityof the human environment within themeaning of Section 102(2)(C) of theNational Environmental Policy Act of1969 (NEPA), as amended. The Findingof No Significant Impact (FONSI) isbased on information contained in theEA and amended HCP. The finaldetermination will be made no soonerthan 30 days from the date of thisnotice. This notice is provided pursuantto Section 10 of the Act and NEPAregulations (40 CFR 1506.6).DATES: Written comments on theamended application, EA, and amendedHCP should be sent to the Service’sRegional Office (see ADDRESSES) andshould be received on or beforeFebruary 24, 1997.ADDRESSES: Persons wishing to reviewthe amended application, HCP, and EAmay obtain a copy by writing theService’s Southeast Regional Office,Atlanta, Georgia. Documents will alsobe available for public inspection byappointment during normal businesshours at the Regional Office, 1875Century Boulevard, Suite 200, Atlanta,Georgia 30345 (Attn: EndangeredSpecies Permits), or at the Jackson,Mississippi, Field Office, 6578 DogwoodView Parkway, Suite A, Jackson,Mississippi 39213. Written data orcomments concerning the application,EA, or HCP should be submitted to theRegional Office. Comments must besubmitted in writing to be processed.Please reference permit PRT–811416 insuch comments, or in requests for thedocuments discussed herein. Requestsfor the documents must be in writing tobe adequately processed.FOR FURTHER INFORMATION CONTACT: Mr.Rick G. Gooch, Regional PermitCoordinator, Atlanta, Georgia (seeADDRESSES above), telephone: 404/679–7110; or Mr. Will McDearman at theJackson, Mississippi, Field Office (seeADDRESSES above), telephone: 601/965–4900.SUPPLEMENTARY INFORMATION: TheAlabama beach mouse (ABM),Peromyscus polionotus ammobates, is asubspecies of the common oldfieldmouse Peromyscus polionotus and isrestricted to the dune systems of theGulf Coast of Alabama. The known

current range of ABM extends from FortMorgan eastward to the westernterminus of Alabama Highway 182,including the Perdue Unit on the BonSecour National Wildlife Refuge(BSNWR). The sand dune systemsinhabited by this species are notuniform; several habitat types aredistinguishable. The species inhabitsprimary dunes, interdune areas,secondary dunes, and scrub dunes. Thedepth and area of these habitats fromthe beach inland varies. Populationsurveys indicate that this subspecies isusually more abundant in primarydunes than in secondary dunes, andusually more abundant in secondarydunes than in scrub dunes. Optimalhabitat consists of dune systems with alldune types. Though fewer ABM inhabitscrub dunes, these high dunes can serveas refugia during devastating hurricanesthat overwash, flood, and destroy oralter secondary and frontal dunes. ABMsurveys on the applicant’s propertyreveal habitat occupied by ABM. Theapplicant’s property contains designatedcritical habitat for the ABM. Expansionof the previously-permitted project mayresult in the death of, or injury to, ABMin excess of that previously expected.Habitat alterations due to expandedcondominium placement andsubsequent human habitation of theamended project may result in furtherreductions of available habitat for food,shelter, and reproduction.

The supplement to the May 15, 1996,EA considers the environmentalconsequences of several alternatives forthe amended project. One actionproposed is issuance of the amendedITP based upon submittal of the revisedHCP as proposed. This alternativeprovides for restrictions that includeplacing no habitable structures seawardof the designated ABM critical habitat,establishment of walkover structuresacross designated critical habitat, aprohibition against housing or keepingpet cats, ABM competitor control andmonitoring measures, scavenger-proofgarbage containers, creation ofeducational and information brochureson ABM conservation, and theminimization and control of outdoorlighting. Further, the revised HCPproposes to increase, in relativeproportion compared to the originalproject, an endowment to acquire ABMhabitat off-site or otherwise performsome other conservation measure for theABM. The revised HCP providesadditional funding for these mitigationmeasures. Another alternative isconsideration of different projectdesigns that further minimizepermanent loss of ABM habitat. A third


alternative is no-action, or deny eitherrequest for authorization to incidentallytake the ABM.

As stated above, the Service has madea preliminary determination that theissuance of an amended ITP is not amajor Federal action significantlyaffecting the quality of the humanenvironment within the meaning ofSection 102(2)(C) of NEPA. Thispreliminary information may be reviseddue to public comment received inresponse to this notice and is based oninformation contained in the EA, HCP,and appropriate amendments. Anappropriate excerpt from the FONSIreflecting the Service’s finding on theapplication is provided below:

Based on the analysis conducted bythe Service, it has been determined that:

1. Issuance of an amended ITP wouldnot have significant effects on thehuman environment in the project area.

2. The additional proposed take isincidental to an otherwise lawfulactivity.

3. The applicant has ensured thatadequate additional funding will beprovided to implement the measuresproposed in the submitted revisions tothe HCP.

4. Other than impacts to endangeredand threatened species as outlined inthe documentation of this decision, theindirect impacts which may result fromissuance of the amended ITP areaddressed by other regulations andstatutes under the jurisdiction of othergovernment entities. The validity of theService’s ITP is contingent upon theApplicant’s compliance with the termsof his permit and all other laws andregulations under the control of State,local, and other Federal governmentalentities.

The Service will also evaluatewhether the issuance of the amendedSection 10(a)(1)(B) ITP complies withSection 7 of the Act by conducting anintra-Service Section 7 consultation.The results of the biological opinions, incombination with the above findings,will be used in the final analysis todetermine whether or not to issue anamended ITP.

Dated: January 15, 1997.Noreen K. Clough,Regional Director.[FR Doc. 97–1604 Filed 1–22–97; 8:45 am]BILLING CODE 4310–55–P

Geological Survey

Federal Geographic Data Committee(FGDC); Public Review of GeospatialPositioning Accuracy Standards

ACTION: Notice; request for comments.

SUMMARY: The FGDC is sponsoring apublic review of the draft GeospatialPositioning Accuracy Standards to beconsidered for adoption as FGDCstandards. If adopted, the standardsmust be followed by all Federal agenciesfor geospatial data collected directly orindirectly, through grants, partnerships,or contracts.

In its assigned leadership role fordeveloping the National Spatial DataInfrastructure (NSDI), the FGDCrecognizes that the standards must alsomeet the needs and recognize the viewsof State and local governments,academia, industry, and the public. Thepurpose of this notice is to solicit suchviews. The FGDC invites the communityto review, test, and evaluate theproposed standards. Comments areencouraged about the content,completeness, and usability of theproposed standard.

The FGDC anticipates that theproposed standards will be adopted asFederal Geographic Data Committeestandards after updating or revision.The standards may be forwarded tovoluntary standards bodies for adoptionif interest warrants such actions.DATES: Comments must be received onor before May 15, 1997.CONTACT AND ADDRESSES: Requests forwritten copies of or review commentsfor the ‘‘Geospatial PositioningAccuracy Standards’’ should beaddressed to Geospatial PositioningAccuracy Standards Review, FGDCSecretariat (attn: Jennifer Fox), U.S.Geological Survey, 590 National Center,12201 Sunrise Valley Drive, Reston,Virginia, 20192; telephone 703–648–5514; facsimile 703–648–5755; orInternet ‘‘[email protected].’’ The standardmay be downloaded from this Internetaddress: ftp://www.fgdc.gov/pub/standards/Accuracy/.SUPPLEMENTARY INFORMATION: TheGeospatial Positioning AccuracyStandards provide a commonmethodology for reporting thehorizontal and vertical accuracy ofclearly defined features where thelocation is represented by a single pointcoordinate: examples are surveymonuments; prominent landmarks, suchas church spires, standpipes, radiotowers, tall chimneys, and mountainpeaks; and targeted photogrammetriccontrol points. It facilitates the

interoperability of spatial data byproviding a consistent means for usersto directly compare positionalaccuracies obtained by differentmethods for the same point. It addressespositional accuracy reporting andtesting requirements for various spatialdata applications. The documentconsists of the following parts:

Part 1, Reporting Methodology: Thegeneral accuracy reporting standard forthe horizontal component is the radiusof a circle of uncertainty, such that thetrue (theoretical) location of the pointfalls within the circle 95-percent of thetime. The general accuracy reportingstandard for the vertical component is alinear uncertainty value, such that thetrue (theoretical) location of the pointfalls within +/¥ of that linearuncertainty value 95-percent of thetime. This reporting methodology isadopted in the subsequent parts of thedraft standard.

Part 2, Standards for GeodeticNetworks. Part 2 addresses accuracyreporting for geodetic surveys. Geodeticcontrol surveys are usually performed toestablish a basic control network fromwhich supplemental surveying andmapping work are performed. Geodeticnetwork surveys are distinguished byuse of redundant, interconnected,permanently monumented controlpoints that comprise the framework forthe National Spatial Reference System(NSRS) or are often incorporated intothe NSRS. This standard is intended toreplace accuracy standards previouslyissued by the Federal Geodetic DataSubcommittee.

Part 3, National Standard for SpatialData Accuracy. The National Standardfor Spatial Data Accuracy (NSSDA)provides a common methodology fortesting and reporting accuracy of mapsand geospatial data derived fromsources such as aerial photographs,satellite imagery, and maps. The NSSDAis intended to replace the United StatesNational Map Accuracy Standards (U.S.Bureau of the Budget, 1947).

The NSRS may be used to referencemapping project control surveys to acommon georeference system. Theaccuracy of geospatial data derived fromproject control surveys is expressedusing the NSSDA. The NSSDA also maybe related to the NSRS by using NSRSpoints as check points to test accuracyof geospatial data derived from aerialphotographs, satellite imagery, maps,and other secondary sources.

Dated: January 14, 1997.Richard E. Witmer,Acting Chief, National Mapping Division.[FR Doc. 97–1593 Filed 1–22–97; 8:45 am]BILLING CODE 4310–31–M


Bureau of Land Management

[WO–300–1310–00]

Green River Basin AdvisoryCommittee, Colorado and Wyoming

AGENCY: Bureau of Land Management,Interior.ACTION: Notice of meeting of the GreenRiver Basin Advisory Committee.

SUMMARY: This notice announces thedate, time, and schedule and initialagenda for meeting of the Green RiverBasin Advisory Committee (GRBAC).DATES: February 3, 1997, from 8:00 a.m.until 3:00 p.m.ADDRESSES: Holiday Inn, 1675 SunsetDrive, Rock Springs, WY.FOR FURTHER INFORMATION CONTACT:Terri Trevino, GRBAC Coordinator,Bureau of Land Management, P.O. Box1828, Cheyenne, WY 82003, telephone(307) 775–6020.SUPPLEMENTARY INFORMATION: The topicfor the meeting will be the GRBAC FinalReport.

This meeting is open to the public.Persons interested in making oralcomments or submitting writtenstatements for the GRBAC’sconsideration should notify the GRBACCoordinator at the above address byJanuary 31. The GRBAC will hear oralcomments beginning at 2:00 pm onFebruary 3. The GRBAC may establisha time limit for oral statements.

Dated January 21, 1997.Mat Millenbach,Acting Director, Bureau of Land Management.[FR Doc. 97–1781 Filed 1–22–97; 8:45 am]BILLING CODE 4310–84–M

[MT–067–06–1020–00]

Lewistown District Resource AdvisoryCouncil Meeting; Montana

AGENCY: Lewistown District Office,Bureau of Land Management, Interior.ACTION: Notice of meeting.

SUMMARY: The Lewistown DistrictResource Advisory Council will meetFebruary 4 and 5 1997, in the upstairsmeeting room in the Megahertz Buildingat 223 West Main in Lewistown,Montana.

The February 4 portion of the meetingwill begin at 1 p.m. Throughout theafternoon the RAC will address theelection of officers for 1997; discussvarious off-road vehicle designationsavailable for resolving land use issues;review the status of their suggestions forrangeland standards and guidelines; andview a video titled ‘‘Landscape’’ which

discusses the consensus process. Themeeting will adjourn around 5 p.m.

The February 5 portion of the meetingwill begin at 8 a.m. Throughout the daythe RAC will discuss the use of rangeimprovement funds; the LewistownDistrict’s annual work plan; district firepolicies; hear public comments;prioritize issues the RAC would like toaddress; review how the group isfunctioning; and select their nextmeeting date.

There will be a public commentperiod at 11 a.m. during the February 5meeting.DATES: February 4 and 5, 1997.LOCATION: The Megahertz Building, 223West Main, Lewistown, MT.FOR FURTHER INFORMATION CONTACT:District Manager, Lewistown DistrictOffice, Bureau of Land Management,P.O. Box 1160, Airport Road,Lewistown, MT 59457.SUPPLEMENTARY INFORMATION: Themeeting is open to the public and therewill be a public comment period asdetailed above.

Dated: January 8, 1997.David L. Mari,District Manager.[FR Doc. 97–1586 Filed 1–22–97; 8:45 am]BILLING CODE 4310–DN–M

[MT–070–97–1990–00]

Resource Advisory Council Meeting,Butte, MT

AGENCY: Butte District Office, Bureau ofLand Management, D.O.I.ACTION: Notice of Butte District ResourceAdvisory Council Meeting, Butte,Montana.

SUMMARY: The council will convene at 9a.m. Thursday, February 13, 1997.Issues that will be discussed includecommunity based planning, review ofabandoned mine priority list for theDistrict, update on Upper ColumbiaRiver Basin Draft EIS and LawEnforcement Issues.

The meeting will be held at theDistrict Office Conference Room, 106North Parkmont, Butte, Montana.

The meeting is open to the public andwritten comments may be given to theCouncil. Oral comments may bepresented to the Council at 3 p.m. Thetime allotted for oral comment may belimited, depending on the number ofpersons wishing to be heard.Individuals who plan to attend andneed further information about themeeting, or need special assistance,such as sign language or otherreasonable accommodations, should

contact the Butte District, 106 NorthParkmont (P.O. Box 3388), Butte,Montana 59702–3388: telephone 406–494–5059.FOR FURTHER INFORMATION CONTACT:Jim Owings at the above address ortelephone number.

Dated: January 6, 1997.James R. Owings,District Manager.[FR Doc. 97–1649 Filed 1–22–97; 8:45 am]BILLING CODE 4310–DN–M

[OR–958–0777–54; GP6–0135; OR–19053,OR–19158, OR–19175]

Public Land Order No. 7230;Revocation of Executive Order DatedJanuary 22, 1912, and SecretarialOrders Dated March 29, 1932, andMarch 17, 1944; Oregon

AGENCY: Bureau of Land Management,Interior.ACTION: Public Land Order.

SUMMARY: This order revokes in theirentirety, one Executive order and twoSecretarial orders which withdrew17,557.20 acres of National ForestSystem lands for the Bureau of LandManagement’s Powersite Reserve No.240, and Powersite Classification Nos.263 and 348. The lands are no longerneeded for the purposes for which theywere withdrawn. The lands remainclosed to surface entry, mining, andmineral leasing by other overlappingwithdrawals.EFFECTIVE DATE: February 24, 1997.FOR FURTHER INFORMATION CONTACT:Betty McCarthy, BLM Oregon/Washington State Office, P.O. Box 2965,Portland, Oregon 97208–2965, 503–952–6155.

By virtue of the authority vested inthe Secretary of the Interior by Section204 of the Federal Land Policy andManagement Act of 1976, 43 U.S.C.1714 (1988), it is ordered as follows:

1. The Executive Order dated January22, 1912, which established PowersiteReserve No. 240, is hereby revoked in itsentirety:

Willamette MeridianWallowa National ForestT. 4 N., R. 49 E.,

Sec. 21, lot 2.The area described contains 33.20 acres in

Wallowa County.

2. The Secretarial Order dated March29, 1932, which established PowersiteClassification No. 263, is herebyrevoked in its entirety:


Willamette MeridianWallowa-Whitman National ForestT. 2 N., R. 48 E.,

Sec. 2, lots 1, 2, and 4, and SW1⁄4NE1⁄4 andNE1⁄4SW1⁄4;

Sec. 3, SE1⁄4NE1⁄4;Sec. 9, SW1⁄4NE1⁄4, E1⁄2SW1⁄4, and SE1⁄4;Sec. 10, lots 3 and 4, and NW1⁄4NE1⁄4 and

NE1⁄4SW1⁄4;Sec. 16, SW1⁄4NW1⁄4.

T. 3 N., R. 48 E.,Sec. 12, S1⁄2NE1⁄4, SE1⁄4SW1⁄4, and

NW1⁄4SE1⁄4;Sec. 13, SW1⁄4NE1⁄4, W1⁄2NW1⁄4, N1⁄2SW1⁄4,

and NW1⁄4SE1⁄4;Sec. 14, SE1⁄4SW1⁄4 and SW1⁄4SE1⁄4;Sec. 23, NW1⁄4NE1⁄4, E1⁄2NW1⁄4, and

SW1⁄4SE1⁄4;Sec. 25, W1⁄2NW1⁄4 and NW1⁄4SW1⁄4;Sec. 35, NW1⁄4NE1⁄4, SE1⁄4NW1⁄4, E1⁄2SW1⁄4,

SW1⁄4SW1⁄4, and SW1⁄4SE1⁄4.T. 4 N., R. 48 E.,

Sec. 24, lots 2 to 7, inclusive, E1⁄2SW1⁄4,and S1⁄2SE1⁄4 excluding Mineral SurveyNos. 507, 601, and 694;

Sec. 25, NE1⁄4, E1⁄2NW1⁄4, N1⁄2SE1⁄4, andSE1⁄4SE1⁄4 excluding Mineral SurveyNos. 601, 723, 738, 747A, and 806.

T. 3 N., R. 49 E.,Sec. 6, lots 1, 2, and 3, S1⁄2NE1⁄4,

SE1⁄4NW1⁄4, NE1⁄4SW1⁄4, N1⁄2SE1⁄4SW1⁄4,SW1⁄4SE1⁄4SW1⁄4, and N1⁄2SE1⁄4 excludingMineral Survey Nos. 746 and 750;

Sec. 7, lots 1 and 4, NW1⁄4NE1⁄4NW1⁄4,S1⁄2SE1⁄4NW1⁄4, and E1⁄2SW1⁄4.

T. 4 N., R. 49 E.,Sec. 30, lots 2, 3, and 4, and SE1⁄4SW1⁄4

excluding Mineral Survey Nos. 723, 738,and 807;

Sec. 31, lots 1, 2, and 3, E1⁄2NW1⁄4, andW1⁄2SE1⁄4 excluding Mineral Survey No.730.

T. 5 S., R. 45 E., unsurveyed,Secs. 11 to 14, inclusive, andSecs. 23 to 28, inclusive, all lands within

1⁄4 mile of North Fork Imnaha Riverbelow Middle Fork, and all lands within1⁄4 mile of South Fork below Cliff River.

T. 5 S., R. 46 E., unsurveyed,Secs. 19 to 29 inclusive, all lands within

1⁄4 mile of Imnaha River and Forks.T. 5 S., R. 47 E., unsurveyed,

Secs. 19 to 27 inclusive, all lands within1⁄4 mile of Imnaha River.

T. 5 S., R. 48 E., unsurveyed,Secs. 19 to 22, inclusive, andSecs. 25 to 30, inclusive;Sec. 23, all, excluding 112 acres in HES

No. 91;

Sec. 24, all, excluding 78 acres in HES No.222.

The areas described aggregateapproximately 16,884 acres in WallowaCounty.

3. The Secretarial Order dated March17, 1944, which established PowersiteClassification No. 348, is herebyrevoked in its entirety:

Willamette MeridianWhitman National ForestT. 5 S., R. 47 E., unsurveyed,

Sec. 25, all lands lying more than 1⁄4 milefrom Imnaha River.

T. 5 S., R. 48 E., unsurveyed,Sec. 31, N1⁄2N1⁄2.The areas described aggregate

approximately 640 acres in Wallowa County.

4. The lands described in paragraphs1, 2, and 3 are included in the Eagle Capand Hells Canyon Wilderness Areas, theHells Canyon National Recreation Area,and the Imnaha Wild and Scenic Riverwithdrawals and remain closed to suchforms of disposition as may by law bemade of National Forest System lands,including the mining and mineralleasing laws.

Dated: December 6, 1996.Bob Armstrong,Assistant Secretary of the Interior.[FR Doc. 97–1650 Filed 1–22–97; 8:45 am]BILLING CODE 4310–33–P

[UTO80–07–1610–00]

Resource Management Plan for theBook Cliffs Conservation InitiativeArea, UT

AGENCY: Bureau of Land Management,Interior.ACTION: Notice of Intent to prepare aCoordinated Resource ManagementPlan/Environmental Impact Statementand Notice of Intent to amend the BookCliffs Resource Management Plan.

SUMMARY: This notice is intended toinform the public of an intent to preparea Coordinated Resource ManagementPlan/Environmental Impact Statement(CRMP/EIS) that addresses future

management of lands within the BookCliffs planning area, including the landsacquired by the Bureau of LandManagement, within the Book Cliffsarea of the Vernal District for thepurpose of amending the Book CliffsResource Management Plan (RMP).Public comment will be activelysolicited throughout the CRMP/EIS andamendment development processes.SUPPLEMENTARY INFORMATION: In 1993, acooperative effort was undertaken bythe Utah Division of Wildlife Resources(UDWR), The Nature Conservancy(TNC), the Rocky Mountain ElkFoundation (RMEF), and the Bureau ofLand Management (BLM). The objectiveof this cooperative effort was to takeadvantage of existing opportunities tocreate a balanced approach to themanagement of unique natural resourceswithin the upper portion of the EastTavaputs Plateau, in southeasternUintah County, Utah. The cooperativeeffort dealt with that portion of the BookCliffs within the area between theUintah-Ouray Indian Reservation trustlands to the west and the Utah-Coloradostate line to the east, an areaencompassing roughly 455,000 acres.

In 1993 and 1994, two private ranchesthen on the market within the area, wereacquired by The Nature Conservancy(TNC) and the Rocky Mountain ElkFoundation (RMEF) with the intent ofvesting the title to either the State ofUtah or the United States. In 1994, theBLM was vested with title to 5,129acres, about 53%, of these acquiredlands. As public lands administered bythe Bureau of Land Management, futuremanagement of these lands must bedeveloped and incorporated into theexisting Book Cliffs RMP. TheCoordinated Resource Management Plan(CRMP) will developed by the BLM inconcert with the UDWR, other State andFederal agencies, stakeholders, keyinterest groups, local governmententities, and the general public.

At this time general planning issues tobe addressed and certain assumptions tobe presented include:

Assumptions Concerns

• There will be a continued demand and competition foravailable forage by livestock, wildlife, and in someareas, wild horses.

How should forage be allocated between livestock, wildlife, and wild horses whileachieving watershed and riparian goals?

• Recreational use will continue to increase. What mix and level of recreational use can occur while maintaining the area’s ‘‘Fron-tier Mystique’’?

• There is a need to improve the overall health of theland.

What will be the cumulative impact of resource uses (grazing, energy, and mineraldevelopment, recreation, related vehicle access, etc.) on desired condition of veg-etative communities in critical habitats such as canyon bottoms, riparian areas,and crucial/critical big game ranges?

• Health, diverse wildlife populations desired. What are the impacts upon current land uses such as livestock and mineral develop-ment as consideration is given for establishment of other native species such asRocky Mountain bighorn sheep, moose, bison, sharptail grouse, wild turkey, andColorado River Cutthroat Trout, and other fisheries?


Assumptions Concerns

• Development and extraction of energy and mineral re-sources will continue, perhaps at an increased rate,depending on demand.

How best can mineral development continue, with the least amount of restrictionswhile restoring and maintaining fully functioning health ecosystems?

• The area is economically important to surroundingcommunities and the State of Utah.

How will future management prescriptions enhance or restrict economic develop-ment?

• There will continue to be a need for various degrees ofaccess to accommodate public needs and demands.

What kind of public access should be provided to and on the area (Off Highway Ve-hicle travel, established roads, etc.)?

• Planning efforts will be consistent with the Governor’sOpen Space Policy.

How will Governor’s Open Space Policy influence the planning process?

The CRMP, EIS and the RMPamendment will be prepared under 43CFR part 1610 to meet the requirementsof section 202 of the Federal LandPolicy and Management Act, andsection 102 of the NationalEnvironmental Policy Act. This revisionis necessary to update and expand thedecisions in the existing land use plan.Decisions generated during thisplanning process will supersedeaffected land use planning decisionspresented in the 1985 Book Cliffs RMPthat affect lands within the CRMP area.

Public participation is being activelysought at this time to ensure the EISaddresses all issues, problems andconcerns from those interested in themanagement of the public lands withinthe Book Cliffs area, including acquiredlands. The development of the CRMP,EIS, and the RMP amendment is apublic process and the public is invitedand encouraged to assist in theidentification of issues and the scope ofthe EIS and planning amendment.Public meetings will be held to discussplanning issues. The date, time, andlocation of these scoping meetings are:March 17, 1997, 7:00 p.m. to 9:00 p.m.,in the John Wesley Powell Museum inGreen River, Utah; March 18, 1997, 7:00p.m. to 9:00 p.m., in the Department ofNatural Resources Auditorium, Room1040–1060, at 1594 West North Temple,Salt lake City, Utah; and March 26,1997, 7:00 p.m. to 9:00 p.m. in theWestern Park Conference Center 302East 200 South in Vernal, Utah. Thesemeetings also will be announced inlocal newspapers and through otherlocal media.

Formal public participation will berequested for review of the preliminaryand final CRMP, EIS, and RMPamendment during 1997. Notice ofavailability of these documents will bepublished at the appropriate times.

The documents will be prepared byan interdisciplinary team whichincludes specialists in rangeland,minerals, vegetation, riparian values,cultural resources, recreation, wildlife/fisheries habitats, realty, and specialstatus animal and plant species. Other

disciplines may be represented asnecessary.FOR FURTHER INFORMATION CONTACT:Dean Evans, Resource Advisor, VernalDistrict Office, 170 South 500 East,Vernal, Utah 84078. Business hours arefrom 7:45 a.m. to 4:30 p.m., Mondaythrough Friday, except legal holidays,telephone (801) 789–1362 or 781–4470,fax (801) 781–4410.

Dated: January 16, 1997.G. William Lamb,State Director, Utah.[FR Doc. 97–1603 Filed 1–22–97; 8:45 am]BILLING CODE 4310–DQ–M

[CO–956–96–1420–00]

Colorado: Filing of Plats of Survey

December 30, 1996.The plats of survey of the following

described land, will be officially filed inthe Colorado State Office, Bureau ofLand Management, Lakewood,Colorado, effective 10:00 a.m.,December 30, 1996. All inquiries shouldbe sent to the Colorado State Office,Bureau of Land Management, 2850Youngfield Street, Lakewood, Colorado80215.

The plat (in four sheets) representingthe dependent resurvey of a portion ofthe subdivisional lines, a portion ofHomestead Entry Survey Number’s 43,106, 215, and mineral claims in sections3 and 10, T. 3 S., R. 73 W., SixthPrincipal Meridian, Group 998,Colorado, was accepted November 4,1996.

The plat representing the metes-and-bounds survey of Tracts 48 and 49 inunsurveyed T. 2 S., R. 75 W., SixthPrincipal Meridian, Group 1149,Colorado, was accepted December 11,1996.

These surveys were required for theadministrative purposes of the ForestService.

The plat representing the entirerecord of the dependent resurvey ofM.S. No. 12572, Don Quixote Lode,section 31, T. 44 N., R. 4 W., NewMexico Principal Meridian, Group 736,

Colorado, was accepted November 27,1996.

The plat representing the dependentresurvey of portions of the southboundary and subdivisional lines andthe subdivision-of-section survey ofsection 35, T. 13 S., R. 74 W., SixthPrincipal Meridian, Group 1045,Colorado, was accepted December 19,1996.

The plat representing the entirerecord of the dependent resurveybetween sections 25 and 36, T. 46 N., R.4 W., New Mexico Principal Meridian,Group 1056, Colorado, was acceptedNovember 7, 1996.

The plat representing the dependentresurvey of portions of the subdivisionallines and the subdivision of section 9,T. 1 S., R. 80 W., Sixth PrincipalMeridian, Group 1123, Colorado, wasaccepted December 3, 1996.

The plat representing the dependentresurvey of a portion of the north andeast boundaries, a portion of theboundary between Jefferson and ClearCreek Counties, M.S. No. 9730, aportion of the subdivisional lines, andthe subdivision survey of section 1, T.4 S., R. 72 W., Sixth Principal Meridian,Group 1136, Colorado, was acceptedDecember 12, 1996.

The supplemental plat creating newlots 1 through 6 in section 32 and newlots 1 through 6 in section 33 of T. 1 N.,R. 80 W., Sixth Principal Meridian,Colorado, was accepted December 5,1996.

These surveys were required for theadministrative purposes of this Bureau.Darryl A. Wilson,Chief Cadastral Surveyor for Colorado.[FR Doc. 97–1584 Filed 1–22–97; 8:45 am]BILLING CODE 4310–JB–P

National Park Service

Notice of Availability of the FinalDevelopment Concept Plan/Environmental Impact Statement forSouth Side Denali, Alaska

AGENCIES: National Park Service,Interior.ACTION: Notice of availability of theFinal Development Concept Plan/


Environmental Impact Statement forSouth Side Denali, Alaska.

SUMMARY: The National Park Serviceannounces the availability of a FinalDevelopment Concept Plan/Environmental Impact Statement (DCP/EIS) for South Side Denali, Alaska. Thedocument describes and analyzes theenvironmental impacts of a proposedaction and two other action alternativesfor providing opportunities for highquality, resource-based destinationexperiences on South Side DenaliNational Park and Preserve in Alaska, aswell as information, orientation, andrecreation services and facilitiesconvenient to park visitors. A no actionalternative also is evaluated.DATES: A Record of Decision will bemade no sooner than 30 days after thedate of the Federal Register Noticeissued by the Environmental ProtectionAgency accepting and announcing theavailability of the final DCP/EIS. ARecord of Decision is anticipated by lateFebruary 1997.ADDRESSES: Copies of the Final SouthSide Denali DCP/EIS are available onrequest from: Superintendent, DenaliNational Park and Preserve, Post OfficeBox 9, Denali Park, Alaska 99755.

Public reading copies of the finalDCP/EIS will be available in thefollowing locations:Office of Public Affairs, National Park

Service, Department of the Interior,1849 C Street, Room 3424,Washington, DC 20240, telephone:(202) 208–6843.

Alaska System Support Office, NationalPark Service, 2525 Gambell Street,Room 404, Anchorage, Alaska 99503–2892, telephone: (907) 257–2650.

FOR FURTHER INFORMATION CONTACT:Nancy Swanton, Park Planner, DenaliNational Park and Preserve. Telephone:(907) 257–2651 FAX: (907) 257–2485.SUPPLEMENTARY INFORMATION: Pursuantto section 102(2)(C) of the NationalEnvironmental Policy Act of 1969 (Pub.L. 91–190, as amended), the NationalPark Service, as lead federal agency, incooperation with the State of Alaska,Matanuska-Susistna Borough, andDenali Borough, has prepared a finalDCP/EIS for proposed visitor facilitiesand services on the South Side of DenaliNational Park and Preserve in Alaska.

The final DCP/EIS represents acooperative planning effort that buildson previous planning for the region,including a draft DCP/EIS issued in1993 and a revised draft DCP/EIS issuedin March 1996, recommendations forthe south side made by the Denali TaskForce and adopted by the National ParkSystem Advisory Board in December

1994, and public comment. The southside refers to an area that includesDenali National Park and Preserve land,Denali State Park land, and other landsto the south of the national park andpreserve boundaries.

A proposed action, two other actionalternatives, and a no action alternativeare described and evaluated in the finalDCP/EIS. The final DCP/EIS also setsthe stage for establishing workingpartnerships for more detailed decision-making, funding, and phasing ofappropriate visitor facilities andservices on the south side.

Purpose, Vision, and GoalsThe purpose of the final DCP/EIS is to

identify and evaluate options for thesouth side of Denali that serve thefollowing vision:

• Provide opportunities for highquality, resource-based, destinationexperiences and provide information,orientation, and recreation services andfacilities convenient to park visitors.

• Develop facilities and access in alocation and manner that minimizesimpacts on resources, local lifestyles,and communities.

• Establish working partnerships forfunding and phasing development asoutlined in the concept plan.

In addition, a number of more specificgoals are identified:

• Provide access to and a location forinterpretation of the special qualitiesfound in Denali National Park andPreserve and Denali State Park,including access to the spectacularalpine landscape on the south side ofthe Alaska Range.

• Offer a range of experiences andopportunities to meet the diverse needsof the traveling public, includinginformation and orientation to theregion; new or improved recreationfacilities; enhanced state and nationalpark interpretation; and shelter in badweather.

• Ensure that, viewed as a whole,facilities and services benefit allvisitors, including Alaska residents,independent travelers, and package tourtravelers.

• Design and develop facilities andaccess improvements to support publicuse and understanding of the south sideand its outstanding resources.

• Establish a research program andidentify management needs to guidefacility and road development.

• Facilitate orderly economicdevelopment in the region consistentwith resource protection.

• Minimize and mitigate adverseeffects on fish and wildlife resources,habitat, cultural resources, local ruralquality of life, and existing public land

and resource uses, includingsubsistence uses.

• Establish methods, responsibilities,and necessary steps to control unwantedsecondary impacts of tourism and tominimize conflicts between differentvisitor groups.

While the final DCP/EIS evaluates theimpacts of the proposed action and arange of alternatives, including a no-action alternative, it also sets the stagefor establishing working partnershipsfor more detailed decision-making,funding, and phasing of appropriatevisitor facilities and services on thesouth side. The final DCP/EISemphasizes the importance ofcoordinated implementation anddescribes the commitments being madeby the planning partners, individuallyand collectively. Most implementationtasks would occur under any of theaction alternatives, although a few areassociated with the proposed actiononly.

Proposed Action and Alternatives

General Policies and Actions

Several general policies and actionswould be implemented under eachaction alternative. (An asterisk *indicates those actions that also wouldapply under the no-action alternative.)The policies would call for locatingcommercial facilities primarily onprivate lands; protecting the wildcharacter of the south side; minimizingimpacts on existing uses; adhering tothe Alaska National Interest LandsConservation Act, sections 1306 and1307; and phasing development.

The following actions would be taken:• Developing up to two additional

roadside exhibits along the George ParksHighway

• Identifying and establishingwatchable wildlife areas

• Developing self-guiding interpretivebrochures

• Managing state rights-of-way tomaintain safety and protect scenicvalues, including selective brushingalong the George Parks Highway

• Reviewing and revising theMatanuska-Susitna Borough’s SpecialLand Use District in Denali State Parkto improve implementation andenforcement*

• Completing borough corridormanagement plans for the PetersvilleRoad and portions of the George ParksHighway*

• Working together, as appropriate, tomanage recreational activities and otheruses of public lands on the south side*(In the no-action alternative, such effortswould continue, but would be lesscomprehensive and lower priority.)


• Supporting the maintenance ofmining activities and working with themining industry and individual claimholders to address mining issues in theproject area*

• Considering state scenic bywaydesignation for portions of the GeorgeParks Highway, including the section inDenali State Park*

• Conducting research on the naturaland cultural resources and human usesin the area in advance of development,as appropriate, on the south side* (Inthe no-action alternative, generalinformation gathering would continue,but not at the pace, depth, or level offunding that would be anticipated if thesite-specific developments described forthe action alternatives were to beimplemented, especially those along thePetersville Road.)

• Formally establishing a DenaliSouth Side Plan ImplementationPartnership to continue the cooperativepartnership approach in implementingthe development concept plan.

Proposed Action (Regional Strategy)To provide a broad range of visitor

opportunities, major facilities would bein the Tokositna area at the end of anupgraded and extended Petersville Roadand at a location near Byers Lake alongthe George Parks Highway. A visitorcenter (up to 5,000 square feet) wouldbe built in the Tokositna area of DenaliState Park. The Petersville Road wouldbe upgraded and extended from theForks Roadhouse (about mile 19) toaccess this new facility. Up to 50primitive recreational vehicle (RV) ortent campsites, a picnic area, up to fourpublic use cabins, and some shorthiking/interpretive trails (some leadinginto Denali National Park and Preserve)would also be developed in theTokositna area. In cooperation and,where desirable, a partnership betweenthe National Park Service, localcommunities, Alaska Native ClaimsSettlement Act Native corporations, andthe state of Alaska would developvisitor facilities and services in thecentral development zone of DenaliState Park, at Talkeetna, and at BroadPass when the need and opportunity todo so are established. Consultation andcoordination with local communities todefine need and determine appropriatecourses of action would be essential. Forthe central development zone,developments would entail constructinga visitor center (up to 3,000 square feet).In addition, the Byers Lake campgroundwould be expanded by up to 25 sites ora new campground of up to 50 siteswould be built elsewhere in the centraldevelopment zone. Up to five primitivefly-in only campsites would be

constructed at Chelatna Lake, as wouldup to two public use cabins and ahiking/interpretive trail and trailheadsign. The Dunkle Hills road couldprovide new public access opportunitiesin the Dunkle Hills/Broad Pass area,including access into Denali NationalPark and Preserve, pending resolution ofland status/access issues.

Development would occur under alogical and cost-effective phasingscenario developed by a Denali southside plan implementation partnership,in consultation with the public.

Alternative A (Large-Scale VisitorFacility along the George ParksHighway)

All facilities would be located inDenali State Park along the George ParksHighway. No facilities would beconstructed in the Tokositna area, in theDunkle Hills, or near Chelatna Lake.The Petersville Road would not beupgraded or extended beyond mile 19under this alternative. One visitor center(up to 13,000 square feet) would be builtin either the northern, central, orsouthern development zone of DenaliState Park. The Byers Lake campgroundwould be expanded by up to 25 sites ora new campground of up to 50 siteswould be built elsewhere in the centraldevelopment zone. Short hiking/interpretive trails would be developedaround the visitor center. No public usecabins would be constructed.

Alternative B (Small-Scale VisitorFacility along the George ParksHighway)

Under alternative B, all facilitieswould be located in Denali State Parkalong the George Parks Highway. Nofacilities would be constructed in theTokositna area, in the Dunkle Hills, ornear Chelatna Lake. The PetersvilleRoad would not be upgraded orextended beyond mile 19 under thisalternative. One small visitor center (upto 1,500 square feet) would be built ineither the northern, central, or southerndevelopment zone of Denali State Park.A small campground (up to 25 sites)would be constructed in the centraldevelopment zone along the GeorgeParks Highway. Short hiking/interpretive trails would be developednear the visitor center. No public usecabins would be constructed.

Alternative C (No Action)Management activity and the current

low level of backcountry visitationwould continue. Under alternative C, allfacilities would be located in DenaliState Park along the George ParksHighway. No facilities would beconstructed in the Tokositna area, in the

Dunkle Hills, or near Chelatna Lake.The Petersville Road would not beupgraded or extended beyond mile 19under this alternative. A 320-square-footvisitor contact station would be built bythe state near the Alaska VeteransMemorial in the central developmentzone of Denali State Park. A short trailto the Chulitna River would bedeveloped by the state in the southerndevelopment zone of the state park. TheMatanuska-Susitna Borough wouldlikely construct a snowmachine userparking area and associated sanitaryfacilities near the Forks Roadhousealong the Petersville Road. An existingprivately built (trespass) cabin nearChelatna Lake would be converted topublic use. In addition, four public usecabins may be developed by the state onthe east side of the Chulitna River inDenali State Park. Development ofcampgrounds or other visitor facilitieson the south side would not beanticipated by the state, the NationalPark Service, or the boroughs.

Changes Made Between the RevisedDraft and Final DCP/EIS

In response to public comments andcooperative planning partnerdiscussions, several changes were madebetween publication of the revised draftDCP/EIS (March 1996) and completionof the final DCP/EIS. The major changesare summarized as follows.

Purpose and NeedThis section was updated to more

explicitly describe the partners’ visionfor south side development andrecreational opportunities and to statethe need for visitor facilities andservices more clearly.

Direction for the PlanThis section was modified to clearly

state the vision, goals, and objectivesthat guide the plan.

Elements Common to All ActionAlternatives

Additional detail is providedclarifying the general policies andactions that would be implementedunder each action alternative and theno-action alternative. For example,additional text is included to emphasizepartner support of continued mining inthe study area.

Implementation of the DevelopmentConcept Plan

This section was revised to provideclarification and additional informationabout plan implementation, includingcollective and individual partnercommitments to ensure continuedpartnership, continued and


1 The record is defined in sec. 207.2(f) of theCommission’s Rules of Practice and Procedure (19CFR § 207.2(f)).

2 Collated roofing nails are nails made of steel,having a length of 13/16 inch to 1–13/16 inches (or20.64 to 46.04 millimeters), a head diameter of0.330 inch to 0.415 inch (or 8.38 to 10.54millimeters), and a shank diameter of 0.100 inch to0.125 inch (or 2.54 to 3.18 millimeters), whether ornot galvanized, that are collated with two wires.

strengthened public consultation andinvolvement, coordination on relatedplans, and appropriate measures tominimize or avoid adverse impacts.

Two key commitments added are asfollows:

• Ensure that additional or revisedland management plans and controls arein effect before major developmentoccurs.

• Assess the progress of planimplementation after three years in lightof funding availability, results ofwildlife research, and progress onidentified mitigation strategies, andadjust priorities or managementemphasis as needed.Alternatives, Including the ProposedAction

The proposed action was revisedbased on public input and cooperativeplanning partner discussions. Languagewas added to clarify the objectives fordevelopment in the Tokositna area andalong the George Parks Highway. Thesize of the Tokositna visitor center wasreduced from a maximum of 13,000square feet to a maximum of 5,000square feet, with associated changes invisitor center functions and reductionsin visitor and administrative space,parking, and employee housing. Thecapacity of the picnic facility in thevicinity of the Tokositna visitor centerwas increased from 25 to 50 people andnow includes uncovered as well ascovered areas for tables.

The proposed action also nowconcentrates on an upgrade andextension of the Petersville Road onlyfrom the Forks Roadhouse (mile 19) tothe Tokositna site, because the road isgenerally usable for recreationdevelopment in its current state to mile19, and it is assumed that the first 19miles would be maintained andupgraded by the state regardless ofactions proposed by this DCP/EIS. Theroad would also now includeappropriately sited bicycle andpedestrian enhancements (not includedin the revised draft DCP/EIS).

Statements have been added notingthat the visitor centers and public usecabins would be designed and built foryear-round use (though, initially, only aportion of the Tokositna visitor centerwould be open to the public in thewinter).

The need for phasing and fundingstrategies are reemphasized, but mostdetails regarding phasing of proposeddevelopments were removed from thetext; these would be determined duringsubsequent implementation planningactivities.

The no-action alternative (alternativeC) was revised slightly in that theproposed Matanuska-Susitna Borough

development of a snowmachine userfacility near the Forks Roadhouse on thePetersville Road has been corrected toshow only a parking area and sanitaryfacilities. The trail to the Chulitna Riveris described in more detail and thelocation changed from the centraldevelopment zone to the southerndevelopment zone of Denali State Park.Construction of four public use cabinson the east side of the Chulitna River inDenali State Park also has been addedto the list of actions.

The mitigating measure related toregulating motorized activities on theCurry-Kesugi Ridge and in theTroublesome Creek drainage of DenaliState Park was deleted.Affected Environment

This section was revised and updatedto reflect new information receivedsince the revised draft DCP/EIS waspublished and to better describe someresource conditions to address questionsraised through public comments on therevised draft DCP/EIS.Environmental Consequences

The impact sections for each of thedevelopment alternatives were revisedto reflect changes made to the proposedaction and no-action alternatives.Additionally, the impact analyses for allalternatives assume land use controlswould be in place prior to majordevelopment; however, where it makesa difference in the analysis, adescription of the impacts is providedgiven the situation that these controlsare not implemented. Visitationpredictions under all alternatives exceptalternative B have been reduced andrelevant impact sections rewrittenaccordingly. Completion of visitorcenter facilities would not occur prior toyear 2000 as assumed in the reviseddraft; this is now assumed to take placeno sooner than 2002 in the final DCP/EIS.

The responsible official for the Recordof Decision on the proposed actions isthe National Park Service field directorin Alaska.

Dated: January 14, 1997.Judith Gottlieb,Acting Field Director, Alaska Field Office.[FR Doc. 97–1636 Filed 1–22–97; 8:45 am]BILLING CODE 4310–70–P

INTERNATIONAL TRADECOMMISSION

[Investigations Nos. 731–TA–757–759(Preliminary)]

Collated Roofing Nails From China,Korea, and Taiwan

Determinations

On the basis of the record 1 developedin the subject investigations, the U.S.International Trade Commissiondetermines, pursuant to section 733(a)of the Tariff Act of 1930 (19 U.S.C.§ 1673b(a)), that there is a reasonableindication that an industry in theUnited States is materially injured byreason of imports from China, Korea,and Taiwan of collated roofing nails,2provided for in subheading 7317.00.55of the Harmonized Tariff Schedule ofthe United States, that are alleged to besold in the United States at less than fairvalue (LTFV).

Commencement of Final PhaseInvestigations

Pursuant to section 207.18 of theCommission’s rules, as amended in 61FR 37818 (July 22, 1996), theCommission also gives notice of thecommencement of the final phase of itsinvestigations. The Commission willissue a final phase notice of schedulingwhich will be published in the FederalRegister as provided in section 207.21of the Commission’s rules upon noticefrom the Department of Commerce(Commerce) of affirmative preliminarydeterminations in the investigationsunder section 733(b) of the Act, or, if thepreliminary determinations arenegative, upon notice of affirmativefinal determinations in thoseinvestigations under section 735(a) ofthe Act. Parties that filed entries ofappearance in the preliminary phase ofthe investigations need not enter aseparate appearance for the final phaseof the investigations. Industrial users,and, if the merchandise underinvestigation is sold at the retail level,representative consumer organizationshave the right to appear as parties inCommission antidumpinginvestigations. The Secretary willprepare a public service list containingthe names and addresses of all persons,


or their representatives, who are partiesto the investigations.

BackgroundOn November 26, 1996, a petition was

filed with the Commission and theDepartment of Commerce by the PaslodeDivision of Illinois Tool Works Inc.,Vernon Hills, IL, alleging that anindustry in the United States ismaterially injured or threatened withmaterial injury by reason of LTFVimports of collated roofing nails fromChina, Korea, and Taiwan. Accordingly,effective November 26, 1996, theCommission instituted antidumpingInvestigations Nos. 731–TA–757–759(Preliminary).

Notice of the institution of theCommission’s investigations and of apublic conference to be held inconnection therewith was given byposting copies of the notice in the Officeof the Secretary, U.S. InternationalTrade Commission, Washington, DC,and by publishing the notice in theFederal Register of December 4, 1996(61 FR 64364). The conference was heldin Washington, DC, on December 17,1996, and all persons who requested theopportunity were permitted to appear inperson or by counsel.

The Commission transmitted itsdeterminations in these investigations tothe Secretary of Commerce on January10, 1997. The views of the Commissionare contained in USITC Publication3010 (January 1997) entitled ‘‘CollatedRoofing Nails from China, Korea, andTaiwan: Investigations Nos. 731–TA–757–759 (Preliminary).’’

Issued: January 14, 1997.By order of the Commission.

Donna R. Koehnke,Secretary.[FR Doc. 97–1640 Filed 1–22–97; 8:45 am]BILLING CODE 7020–02–P

[Inv. No. 337–TA–334]

Notice of Commission Determinationto Review in Part an InitialDetermination; Schedule for the Filingof Written Submissions on the IssueUnder Review, and on Remedy, thePublic Interest, and Bonding

In the Matter of certain condensers, partsthereof and products containing same,including air conditioners for automobiles.

AGENCY: U.S. International TradeCommission.ACTION: Notice.

SUMMARY: Notice is hereby given thatthe U.S. International TradeCommission has determined to reviewin part the initial determination (ID)

issued by the presiding administrativelaw judge (ALJ) on December 2, 1996, inthe above-captioned investigation. TheID found a violation of section 337 ofthe Tariff Act of 1930, 19 U.S.C. 1337.FOR FURTHER INFORMATION CONTACT: JeanJackson, Esq., Office of the GeneralCounsel, U.S. International TradeCommission, telephone 202–205–3104.SUPPLEMENTARY INFORMATION: OnDecember 12, 1991, ModineManufacturing Co. filed a complaintwith the Commission alleging aviolation of section 337 by respondentsShowa Aluminum Corporation, ShowaAluminum Corporation of America,Mitsubishi Motors Corporation,Mitsubishi Motors Sales of America,Mitsubishi Heavy Industries, Ltd., andMitsubishi Heavy Industries America,Inc. (collectively referred to herein asrespondents). Modine alleged that therespondents had infringed claims ofModine’s patent, U.S. Letters Patent4,998,580 (the ’580 patent). Theinvestigation was assigned an ALJ, whodetermined that there was noinfringement, either literally or underthe doctrine of equivalents, by therespondents. The ALJ furtherdetermined that the patent was invalidand unenforceable due to inequitableconduct. On July 30, 1993, theCommission reversed the ALJ’s findingsof invalidity and inequitable conduct,but adopted her findings andconclusions on the infringement issues.

Modine appealed the Commission’sfinding of no infringement, and thus noviolation of section 337, to the U.S.Court of Appeals for the Federal Circuit(Federal Circuit). In the same appeal,the respondents challenged theCommission’s findings upholding thevalidity and enforceability of the ’580patent. On February 5, 1996, the FederalCircuit reversed the Commission’s claiminterpretation and remanded theinvestigation to the Commission forredetermination of the issues of literalinfringement and infringement underthe doctrine of equivalents. ModineManufacturing Co. v. U.S.I.T.C., 75 F.3d1545, 1549 (Fed. Cir. 1996). The courtaffirmed the Commission’sdetermination in all other respects. Id.

On May 31, 1996, the Commissionissued an order remanding theCondensers investigation to the Office ofAdministrative Law Judges. The orderprovided that the presiding ALJ conductfurther proceedings in accordance withthe Federal Circuit’s decision in Modineand issue an ID on violation, preferablywithin six months. The Commission’sorder also directed the ALJ to issue arecommended determination (RD) onthe issues of remedy and bonding two

weeks after the ID issued. On December2, 1996, the ALJ issued an ID finding aviolation of section 337 by respondents.On December 12, 1996, respondents andthe Commission investigative attorney(IA) filed separate petitions for review.Complainant Modine filed a petition forreview contingent on the Commission’sdecision either to grant another party’spetition for review or to review the IDon its own motion. All parties filedresponses to each petition on December19, 1996. The ALJ issued his RD onremedy and bonding on December 16,1996.

Having examined the record in thisinvestigation, including the ID, theCommission has determined to reviewthe reasoning supporting the ALJ’sfinding that the proper estoppel pointfor the Cat condenser is 0.04822 inch.The Commission has determined not toreview the ID in all other respects. Onreview, the Commission will considerwhether the 0.04822 inch measurementis properly considered law of the case,given that the Commission’s previousfinding that the Cat condenser’shydraulic diameter was 0.04822 inchwas affirmed by the Federal Circuitwhen it affirmed the Commission’sfindings on the scope and content of theprior art. Modine, 75 F. 3d at 1549.

In connection with final dispositionof this investigation, the Commissionmay issue (1) an order that could resultin the exclusion of the subject articlesfrom entry into the United States, and/or (2) cease and desist orders that couldresult in respondents being required tocease and desist from engaging in unfairacts in the importation and sale of sucharticles. Accordingly, the Commission isinterested in receiving writtensubmissions that address the form ofremedy, if any, that should be ordered.If a party seeks exclusion of an articlefrom entry into the United States forpurposes other than entry forconsumption, the party should soindicate and provide informationestablishing that activities involvingother types of entry either are adverselyaffecting it or are likely to do so. Forbackground, see the CommissionOpinion in In the Matter of CertainDevices for Connecting Computers viaTelephone Lines, Inv. No. 337–TA–360.

If the Commission contemplates someform of remedy, it must consider theeffects of that remedy upon the publicinterest. The factors the Commissionwill consider include the effect that anexclusion order and/or cease and desistorders would have on (1) the publichealth and welfare, (2) competitiveconditions in the U.S. economy, (3) U.S.production of articles that are like ordirectly competitive with those that are


1 For purposes of this investigation, Commercehas defined the subject merchandise as persulfates,including ammonium, potassium, and sodiumpersulfates. The chemical formulae for thesepersulfates are, respectively, (NH4)2S2O8, K2S2O8,and Na2S2O8.

subject to investigation, and (4) U.S.consumers. The Commission istherefore interested in receiving writtensubmissions that address theaforementioned public interest factorsin the context of this investigation.

If the Commission orders some formof remedy, the President has 60 days toapprove or disapprove theCommission’s action. During thisperiod, the subject articles would beentitled to enter the United States undera bond, in an amount determined by theCommission and prescribed by theSecretary of the Treasury. TheCommission is therefore interested inreceiving submissions concerning theamount of the bond that should beimposed.WRITTEN SUBMISSIONS: The parties to theinvestigation are requested to filewritten submissions on the issue underreview. The submissions should beconcise and thoroughly referenced tothe record in this investigation,including, where necessary, referencesto specific exhibits and testimony.Additionally, the parties to theinvestigation, interested governmentagencies, and any other interestedpersons are encouraged to file writtensubmissions on the issues of remedy,the public interest, and bonding. Suchsubmissions should address theDecember 16, 1996, recommendeddetermination by the ALJ on remedyand bonding. Complainant and theCommission investigative attorney arealso requested to submit proposedremedial orders for the Commission’sconsideration. The written submissionsand proposed remedial orders must befiled no later than the close of businesson January 30, 1997. Reply submissionsmust be filed no later than the close ofbusiness on February 6, 1997. Nofurther submissions will be permittedunless otherwise ordered by theCommission.

Persons filing written submissionsmust file with the Office of the Secretarythe original document and 14 truecopies thereof on or before the deadlinesstated above. Any person desiring tosubmit a document (or portion thereof)to the Commission in confidence mustrequest confidential treatment unlessthe information has already beengranted such treatment during theproceedings. All such requests shouldbe directed to the Secretary of theCommission and must include a fullstatement of the reasons why theCommission should grant suchtreatment. See 19 C.F.R. 201.6.Documents for which confidentialtreatment is granted by the Commissionwill be treated accordingly. All

nonconfidential written submissionswill be available for public inspection atthe Office of the Secretary.

This action is taken under theauthority of section 337 of the Tariff Actof 1930, as amended (19 U.S.C. 1337),and sections 210.45–.51 of theCommission’s Rules of Practice andProcedure (19 C.F.R. 210.45–.51).

Copies of the public version of the IDand all other nonconfidentialdocuments filed in connection with thisinvestigation are or will be available forinspection during official businesshours (8:45 a.m. to 5:15 p.m.) in theOffice of the Secretary, U.S.International Trade Commission, 500 E.Street, S.W., Washington, D.C. 20436,telephone 202–205–2000. Hearingimpaired persons are advised thatinformation on the matter can beobtained by contacting theCommission’s TDD terminal at 202–205–1810.


Donna R. Koehnke,Secretary.[FR Doc. 97–1638 Filed 1–22 97; 8:45 am]BILLING CODE 7020–02–P

[Investigation No. 731–TA–749 (Final)]

Persulfates From China

AGENCY: United States InternationalTrade Commission.ACTION: Scheduling of the final phase ofan antidumping investigation.

SUMMARY: The Commission hereby givesnotice of the scheduling of the finalphase of antidumping investigation No.731–TA–749 (Final) under section735(b) of the Tariff Act of 1930 (19U.S.C. 1673d(b)) (the Act) to determinewhether an industry in the UnitedStates is materially injured orthreatened with material injury, or theestablishment of an industry in theUnited States is materially retarded, byreason of less-than-fair-value importsfrom China of persulfates, provided forin subheadings 2833.40.20 and2833.40.60 of the Harmonized TariffSchedule of the United States.1

For further information concerningthe conduct of this phase of theinvestigation, hearing procedures, andrules of general application, consult theCommission’s Rules of Practice andProcedure, part 201, subparts A through

E (19 CFR part 201), and part 207,subparts A and C (19 CFR part 207), asamended by 61 FR 37818, July 22, 1996.EFFECTIVE DATE: December 26, 1996.FOR FURTHER INFORMATION CONTACT:Elizabeth Haines (202–205–3200), Officeof Investigations, U.S. InternationalTrade Commission, 500 E Street SW,Washington, DC 20436. Hearing-impaired persons can obtaininformation on this matter by contactingthe Commission’s TDD terminal on 202–205–1810. Persons with mobilityimpairments who will need specialassistance in gaining access to theCommission should contact the Officeof the Secretary at 202–205–2000.General information concerning theCommission may also be obtained byaccessing its internet server (http://www.usitc.gov or ftp://ftp.usitc.gov).


BackgroundThe final phase of this investigation is

being scheduled as a result of anaffirmative preliminary determinationby the Department of Commerce thatimports of persulfates from China arebeing sold in the United States at lessthan fair value within the meaning ofsection 733 of the Act (19 U.S.C. 1673b).The investigation was requested in apetition filed on July 11, 1996, by FMCCorporation, Chicago, IL.

Participation in the Investigation andPublic Service List

Persons, including industrial users ofthe subject merchandise and, if themerchandise is sold at the retail level,representative consumer organizations,wishing to participate in the final phaseof this investigation as parties must filean entry of appearance with theSecretary to the Commission, asprovided in section 201.11 of theCommission’s rules, no later than 21days prior to the hearing date specifiedin this notice. A party that filed a noticeof appearance during the preliminaryphase of the investigation need not filean additional notice of appearanceduring this final phase. The Secretarywill maintain a public service listcontaining the names and addresses ofall persons, or their representatives,who are parties to the investigation.

Limited Disclosure of BusinessProprietary Information (BPI) Under anAdministrative Protective Order (APO)and BPI Service List

Pursuant to section 207.7(a) of theCommission’s rules, the Secretary willmake BPI gathered in the final phase ofthis investigation available toauthorized applicants under the APO


issued in the investigation, providedthat the application is made no laterthan 21 days prior to the hearing datespecified in this notice. Authorizedapplicants must represent interestedparties, as defined by 19 U.S.C. 1677(9),who are parties to the investigation. Aparty granted access to BPI in thepreliminary phase of the investigationneed not reapply for such access. Aseparate service list will be maintainedby the Secretary for those partiesauthorized to receive BPI under theAPO.

Staff ReportThe prehearing staff report in the final

phase of this investigation will beplaced in the nonpublic record on May1, 1997, and a public version will beissued thereafter, pursuant to section207.22 of the Commission’s rules.

HearingThe Commission will hold a hearing

in connection with the final phase ofthis investigation beginning at 9:30 a.m.on May 14, 1997, at the U.S.International Trade CommissionBuilding. Requests to appear at thehearing should be filed in writing withthe Secretary to the Commission on orbefore May 6, 1997. A nonparty who hastestimony that may aid theCommission’s deliberations may requestpermission to present a short statementat the hearing. All parties andnonparties desiring to appear at thehearing and make oral presentationsshould attend a prehearing conferenceto be held at 9:30 a.m. on May 8, 1997,at the U.S. International TradeCommission Building. Oral testimonyand written materials to be submitted atthe public hearing are governed bysections 201.6(b)(2), 201.13(f), and207.24 of the Commission’s rules.Parties must submit any request topresent a portion of their hearingtestimony in camera no later than 7days prior to the date of the hearing.

Written SubmissionsEach party who is an interested party

shall submit a prehearing brief to theCommission. Prehearing briefs mustconform with the provisions of section207.23 of the Commission’s rules; thedeadline for filing is May 8, 1997.Parties may also file written testimonyin connection with their presentation atthe hearing, as provided in section207.24 of the Commission’s rules, andposthearing briefs, which must conformwith the provisions of section 207.25 ofthe Commission’s rules. The deadlinefor filing posthearing briefs is May 22,1997; witness testimony must be filedno later than three days before the

hearing. In addition, any person whohas not entered an appearance as a partyto the investigation may submit awritten statement of informationpertinent to the subject of theinvestigation on or before May 22, 1997.On June 10, 1997, the Commission willmake available to parties all informationon which they have not had anopportunity to comment. Parties maysubmit final comments on thisinformation on or before June 12, 1997,but such final comments must notcontain new factual information andmust otherwise comply with section207.30 of the Commission’s rules. Allwritten submissions must conform withthe provisions of section 201.8 of theCommission’s rules; any submissionsthat contain BPI must also conform withthe requirements of sections 201.6,207.3, and 207.7 of the Commission’srules.

In accordance with sections 201.16(c)and 207.3 of the Commission’s rules,each document filed by a party to theinvestigation must be served on all otherparties to the investigation (as identifiedby either the public or BPI service list),and a certificate of service must betimely filed. The Secretary will notaccept a document for filing without acertificate of service.

Authority: This investigation is beingconducted under authority of title VII of theTariff Act of 1930; this notice is publishedpursuant to section 207.21 of theCommission’s rules.


Donna R. Koehnke,Secretary.[FR Doc. 97–1639 Filed 1–22–97; 8:45 am]BILLING CODE 7020–02–P

DEPARTMENT OF JUSTICE

Notice of Lodging of ConsentJudgment Pursuant to the Rivers andHarbors Act

In accordance with DepartmentalPolicy, 28 CFR 50.7, notice is herebygiven that a Consent Decree in UnitedStates v. Providence Harbour View Inc.,Civil No. 97–008P (D.R.I.), was lodgedwith the United States District Court forthe District of Rhode Island on January7, 1997.

The Consent Decree concerns allegedviolations of section 10 of the Riversand Harbors Act (‘‘RHA’’), 33 U.S.C.403, resulting from the defendant’sdischarge of fill material, performanceof unauthorized work and placement ofstructures, including riprap, pilings, andfloating docks, in the waters of theProvidence Harbor, Rhode Island,

navigable waters of the United States,without the required permits. As part ofthe Consent Decree, defendant will berequired to pay $40,000 as disgorgementof economic benefit and to submit anafter-the-fact permit application to theUnited States Army Corps of Engineerswithin 90 days of the entry of theConsent Decree. Defendant has alsoagreed to abide by regulations for thepermit programs under the RHA andsection 404 of the Clean Water Act, 33U.S.C. 1344.

The Department of Justice will receivewritten comments relating to theproposed Consent Decree for a period of30 days from the date of publication ofthis notice. Comments should beaddressed to Michael P. Iannotti,Assistant U.S. Attorney, 10 DorranceStreet, Tenth Floor, Providence, RhodeIsland 02903, and should refer to UnitedStates v. Providence Harbour View, Inc.,C.A. No. 97–008P (D.R.I.).

The Consent Judgment may beexamined at the Clerk’s Office, UnitedStates District Court for the District ofRhode Island, Kennedy Plaza,Providence, Rhode Island 02903.Michael P. Iannotti,Assistant U.S. Attorney.[FR Doc. 97–1591 Filed 1–22–97; 8:45 am]BILLING CODE 4410–07–M

Notice of Lodging of SettlementAgreement Pursuant to theComprehensive EnvironmentalResponse, Compensation, and LiabilityAct

In accordance with Departmentalpolicy, notice is hereby given that aproposed Consent Decree between theUnited States and Stratton Georgouliswas lodged on January 6, 1997, with theUnited States District Court for theNorthern District of Iowa. The ConsentDecree resolves United States v. TICInvestment Corporation, et al, No. 91–2065 (N.D. Iowa), a civil action filed bythe United States against StrattonGeorgoulis, TIC Investment Corporationand TIC United Corporation underSections 104(e) and 107 of theComprehensive EnvironmentalResponse, Compensation and LiabilityAct of 1980, as amended (‘‘CERCLA’’),42 U.S.C. 9604(e) & 9607. The UnitedStates brought this action to recover$576,337.18 in unreimbursed responsecosts at the White Farm EquipmentDump Site (‘‘the Site’’), following theentry of a Consent Decree with AlliedProducts Corporation (‘‘Allied’’) underwhich Allied voluntarily performedEPA’s selected remedial action for theSite and reimbursed the United Statesfor its costs of overseeing Allied’s


completion of the remedy. The UnitedStates also sought a penalty from thedefendants under Section 104(e) ofCERCLA, 42 U.S.C. 9604(e), based onthe defendants’ alleged unreasonablefailure to comply with writteninformation requests served upon themby EPA.

Under the Consent Decree, Georgouliswill reimburse the United States for$530,000 of its unreimbursed costs atthe Site, and pay a $100,000 civilpenalty to resolve the United States’claims for the defendants’ allegedviolations of Section 104(e) of CERCLA.

The Department of Justice willreceive, for a period of thirty (30) daysfrom the date of this publication,comments relating to the proposedConsent Decree. Comments should beaddressed to the Assistant AttorneyGeneral for the Environment andNatural Resources Division, Departmentof Justice, Washington, D.C. 20530, andshould refer to United States v. TICInvestment Corporation, et al., DOJ Ref.#90–11–2–665a.

The proposed Consent Decree may beexamined at the office of the UnitedStates Attorney, Suite 400, HachBuilding, 401 First Street, S.E., CedarRapids, Iowa 52401; the Region 7 Officeof the Environmental ProtectionAgency, 726 Minnesota Avenue, KansasCity, Kansas 98105; and at the ConsentDecree Library, 1120 G Street, N.W., 4thFloor, Washington, D.C. 20005, (202)624–0892. A copy of the proposedConsent Decree may be obtained inperson or by mail from the ConsentDecree Library, 1120 G Street, N.W., 4thFloor, Washington, D.C. 20005. Inrequesting a copy please refer to thereferenced case and enclose a check inthe amount of $4.25 (25 cents per pagereproduction costs), payable to theConsent Decree Library.Joel M. Gross,Chief, Environmental Enforcement Section,Environment and Natural Resources Division.[FR Doc. 97–1592 Filed 1–22–97; 8:45 am]BILLING CODE 4410–15–M

Federal Bureau of Investigation

Notice of Charter Renewal

In accordance with the provisions ofthe Federal Advisory Committee Act(Title 5, United States Code, Appendix2), and Title 41, Code of FederalRegulations, Section 101–6.1015, theDirector, FBI, with the concurrence ofthe Attorney General, has determinedthat the continuance of the CriminalJustice Information Services (CJIS)Advisory Policy Board is in the publicinterest, in connection with the

performance of duties imposed upon theFBI by law, and hereby gives notice ofthe renewal of its charter, scheduled forDecember 15, 1996.

The Board recommends to theDirector, FBI, general policy withrespect to the philosophy, concept, andoperational principles of the variouscriminal justice information systemsmanaged by the FBI’s CJIS Division.

The Board includes representativesfrom state and local criminal justiceagencies; members of the judicial,prosecutorial, and correctional segmentsof the criminal justice community; arepresentative of Federal agenciesparticipating in the CJIS systems; andrepresentatives of criminal justiceprofessional associations (i.e., theInternational Association of Chiefs ofPolice, the Major Cities Chiefs, theNational Sheriffs’ Association, theNational District Attorneys Association,and the American Probation and ParoleAssociation). All members of the Boardwill be appointed by the FBI Director.

The Board functions solely as anadvisory body in compliance with theprovisions of the Federal AdvisoryCommittee Act. Its charter will be filedin accordance with the provisions of theAct.

Dated: November 2, 1996.Louis J. Freeh,Director.[FR Doc. 97–1594 Filed 1–22–97; 8:45 am]BILLING CODE 4410–02–M

DEPARTMENT OF LABOR

Employment and TrainingAdministration

[TA–W–32, 709; NAFTA–01224]

Penn Mould Industries, Incorporated,Washington, Pennsylvania; Notice ofNegative Determination onReconsideration

On November 27, 1996, theDepartment issued an AffirmativeDetermination Regarding Applicationfor Reconsideration for the workers andformer workers of the subject firm. Thepetitioner, American Flint GlassWorkers Union, AFL–CIO, presentedevidence that the Department’s surveyof the subject firm customers wasincomplete. This notice was publishedin the Federal Register on December 13,1996 (61 FR 65599).

The Department’s initial denial ofTAA for workers of Penn MouldIndustries was because the ‘‘contributedimportantly’’ group eligibilityrequirement of Section 222(3) of theTrade Act of 1974, as amended, was not

met. The investigation revealed thatlayoffs were attributable to a change inthe manufacturing process of glassmolds at the Washington, Pennsylvaniaplant.

The Department’s initial denial ofNAFTA–TAA for workers of PennMould Industries was because criteria(3) and (4) of the group eligibilityrequirements in paragraph (a)(1) ofSection 250 of the Trade Act were notmet. The subject firm did not importglass forming molds, or shift productionto Mexico or Canada. The investigationrevealed that layoffs were attributable toa process change in the manufacturingof glass forming molds.

The petitioner provided data on U.S.imports of glass containers to supporttheir claim that workers producing glassforming molds are adversely affected byincreased imports. The Departmentconcurs that there is an aggregateincrease in imports of glass containersfrom Mexico and Canada and otherforeign sources. However, in order todetermine worker eligibility for TAA orNAFTA–TAA, the Department mustexamine imports of products like ordirectly competitive with those articlesproduced at the Washington productionfacility. In this case, the productsproduced at Washington were glassforming molds. Glass containers cannotbe considered like or directlycompetitive with the end productsproduced and sold at the Washingtonplant.

The petitioner claims that PennMould was a captive producer of glassforming molds for its parent company,Ball-Foster Glass Container, Inc. On July1, 1996, Penn Mould was sold to RossMould, Inc. and the Washington,Pennsylvania facility became acommercial producer of glass formingmolds. Consequently, the customer baseexpanded.

The Department conducted a surveyof the major customer of Penn MouldIndustries, Inc., formerly Penn Mould.Findings of the survey revealed thatfrom 1994 through September 1996, thecustomer, accounting for thepredominate proportion of sales, did notimport glass forming molds fromCanada, Mexico or other foreignsources.

The petitioner further alleges thatworkers of another domestic companyproducing glass forming molds wascertified eligible to apply for NAFTA–TAA. Review of that case showed thatthe workers were certified based onincreased company imports of theproduct.


Conclusion

After reconsideration, I affirm theoriginal notice of negativedetermination of eligibility to apply forworker adjustment assistance andNAFTA–TAA for workers and formerworkers of Penn Mould Industries, Inc.,Washington, Pennsylvania.

Signed at Washington, D.C., this 27th dayof December 1996.Curtis K. Kooser,Acting Program Manager, Policy andReemployment Services, Office of TradeAdjustment Assistance.[FR Doc. 97–1666 Filed 1–22–97; 8:45 am]BILLING CODE 4510–30–M

[TA–W–32,360]

AA Production, Incorporated;Amended Certification RegardingEligibility To Apply for WorkerAdjustment Assistance

In accordance with Section 223 of theTrade Act of 1974 (19 U.S.C. 2273) theDepartment of Labor issued a Notice ofCertification Regarding Eligibility toApply for Worker AdjustmentAssistance on July 17, 1996, applicableto all workers of AA Production,Incorporated located in Lubbock, Texas.The notice was published in the FederalRegister on August 6, 1996 (61 FR40852).

At the request of the State agency, theDepartment reviewed the workercertification. New findings show thatthe Department inadvertently set theimpact date at May 8, 1995. The workersat the subject firm were covered underan earlier certification, TA–W–29, 693,which expired April 29, 1996. TheDepartment is amending thecertification for workers of AAProduction, Incorporated to set theimpact date at April 29, 1996.

The amended notice applicable toTA–W–32,360 is hereby issued asfollows:

‘‘All workers of AA Production,Incorporated, Lubbock, Texas, who becametotally or partially separated fromemployment on or after April 29, 1996, areeligible to apply for adjustment assistanceunder Section 223 of the Trade Act of 1974.’’

Signed at Washington, D.C. this 7th day ofJanuary 1997.Russell T. Kile,Program Manager, Policy and ReemploymentServices, Office of Trade AdjustmentAssistance.[FR Doc. 97–1663 Filed 1–22–97; 8:45 am]BILLING CODE 4510–30–M

[TA–W–32,271, 271A & 271B]

Manhattan Shirt Company, A Divisionof Salant Corporation; AmendedCertification Regarding Eligibility toApply for Worker AdjustmentAssistance

In accordance with Section 223 of theTrade Act of 1974 (19 USC 2273) theDepartment of Labor issued aCertification of Eligibility to Apply forWorker Adjustment Assistance on June27, 1996, applicable to all workers ofManhattan Shirt Company, a Division ofSalant Corporation located in Americus,Georgia.

At the request of petitioners, theDepartment reviewed the certificationfor workers of the subject firm. Newinformation provided by the companyshows that worker separations haveoccurred at the sales offices of thesubject firm in New York, New Yorkand Clark, New Jersey. The workers atthe New York and New Jersey locationsprovide sales and support services tothe Manhattan Shirt Companyproduction facility in Americus,Georgia.

The intent of the Department’scertification is to include all workers ofthe subject firm who were adverselyaffected by increased imports.Accordingly, the Department isamending the certification to cover thesales and support service staff ofManhattan Shirt Company, A Divisionof Salant Corporation, New York, NewYork and Clark, New Jersey.


‘‘All workers of Manhattan Shirt Company,a division of Salant Corporation, Americus,Georgia (TA–W–32,271); and sales andsupport service workers of Manhattan ShirtCompany, a Division of Salant Corporation,New York, New York (TA–W–32,271A) andClark, New Jersey (TA–W–32,271B) whobecame totally or partially separated fromemployment on or after April 16, 1995 areeligible to apply for adjustment assistanceunder Section 223 of the Trade Act of 1974.’’


[TA–W–32,739]

Mission Plastics of DeQueen;DeQueen, AR; Dismissal of Applicationfor Reconsideration

Pursuant to 29 CFR 90.18(C) anapplication for administrativereconsideration was filed with theProgram Manager of the Office of TradeAdjustment Assistance for workers atMission Plastics of DeQueen, DeQueen,Arkansas. The review indicated that theapplication contained no newsubstantial information which wouldbear importantly on the Department’sdetermination. Therefore, dismissal ofthe application was issued.TA–W–32,739; Mission Plastics of

DeQueen, DeQueen, Arkansas(January 10, 1997)

Signed at Washington, D.C. this 13th dayof January, 1997.Russell T. Kile,Program Manager, Policy and ReemploymentServices, Office of Trade AdjustmentAssistance.[FR Doc. 97–1658 Filed 1–22–97; 8:45 am]BILLING CODE 4510–30–M

[TA–W–32,159]

Olympus America Inc.; Rio Rancho,NM; Amended Certification RegardingEligibility To Apply for WorkerAdjustment Assistance

In accordance with Section 223 of theTrade Act of 1974 (19 U.S.C. 2273) theDepartment of Labor issued a Notice ofCertification Regarding Eligibility toApply for Worker AdjustmentAssistance on June 11, 1996, applicableto all workers of Olympus America Inc.located in Rio Rancho, New Mexico.The notice was published in the FederalRegister on July 3, 1996 (61 FR 34875).

At the request of the State agency, theDepartment reviewed the workercertification. New findings show that allworkers of the Rio Rancho productionfacility of Olympus America wereseparated from employment when theplant closed on September 30, 1996.Workers supporting the production ofmedical light sources at the subject firmwere inadvertently excluded from thecertification.

The intent of the Department’scertification is to include all workers ofthe subject firm who were adverselyaffected by increased imports.Accordingly, the Department isamending the certification to cover allworkers of Olympus America, Inc., RioRancho, New Mexico.



‘‘All workers of Olympus America, Inc.,Rio Rancho, New Mexico, who becametotally or partially separated fromemployment on or after March 22, 1995, areeligible to apply for adjustment assistanceunder Section 223 of the Trade Act of 1974.’’

Signed at Washington, DC this 8th day ofJanuary 1997.Russell T. Kile,Program Manager, Policy and ReemploymentServices, Office of Trade AdjustmentAssistance.[FR Doc. 97–1661 Filed 1–22–97; 8:45 am]BILLING CODE 4510–30–M

[TA–W–32,791 and 791A]

River Heights Inc.; AmendedCertification Regarding Eligibility ToApply for Worker AdjustmentAssistance

In accordance with Section 223 of theTrade Act of 1974 (19 USC 2273) theDepartment of Labor issued aCertification Regarding Eligibility toApply for Worker AdjustmentAssistance on November 8, 1996,applicable to all workers of RiverHeights Inc. located in Crump,Tennessee. The notice was published inthe Federal Register on November 27,1996 (61 FR 60309).

At the request of the State Agency, theDepartment reviewed the certificationfor workers of the subject firm. The newfindings show that when thedetermination was issued, theDepartment inadvertently omittedworkers of the Selmer, Tennesseelocation of River Heights Inc. whichclosed May 1996. The workers wereengaged in employment related to theproduction of knit shirts. Accordingly,the Department is amending the workercertification to include workers at RiverHeights Inc., Selmer, Tennessee.


All workers of River Heights Inc., Crump,Tennessee (TA–W–32,791) and Selmer,Tennessee (TA–W–32,791A) who becametotally or partially separated fromemployment on or after September 30, 1995are eligible to apply for adjustment assistanceunder Section 223 of the Trade Act of 1974.


[TA–W–32,736]

Roxanne of Pennsylvania, Wilkes-Barre, Pennsylvania; AmendedCertification Regarding Eligibility toApply for Worker AdjustmentAssistance

In accordance with Section 223 of theTrade Act of 1974 (19 U.S.C. 2273) theDepartment of Labor issued a Notice ofCertification Regarding Eligibility toApply for Worker AdjustmentAssistance on November 22, 1996,applicable to all workers of Roxanne ofPennsylvania, located in Wilkes-Barre,Pennsylvania. The notice was publishedin the Federal Register on December 24,1996 (61 FR 68758).

At the request of the State agency, theDepartment reviewed the workercertification. New findings show thatthe Department incorrectly set theimpact date at August 27, 1995. Theworkers at the subject firm were coveredunder an earlier certification, TA–W–29,776A, which expired June 8, 1996.The Department is amending thecertification for workers of Roxanne ofPennsylvania to set the impact date atJune 8, 1996.

The amended notice applicable toTA–W–32, 736 is hereby issued asfollows:

‘‘All workers of Roxanne of Pennsylvania,Wilkes-Barre, Pennsylvania, who becametotally or partially separated fromemployment on or after June 8, 1996 areeligible to apply for adjustment assistanceunder Section 223 of the Trade Act of 1974.’’


Investigations Regarding Certificationsof Eligibility to Apply for WorkerAdjustment Assistance

Petitions have been filed with theSecretary of Labor under Section 221(a)of the Trade Act of 1974 (‘‘the Act’’) andare identified in the Appendix to thisnotice. Upon receipt of these petitions,the Program Manager of the Office ofTrade Adjustment Assistance,Employment and TrainingAdministration, has institutedinvestigations pursuant to Section221(a) of the Act.

The purpose of each of theinvestigations is to determine whetherthe workers are eligible to apply foradjustment assistance under Title II,Chapter 2, of the Act. The investigationswill further relate, as appropriate, to thedetermination of the date on which totalor partial separations began orthreatened to begin and the subdivisionof the firm involved.

The petitioners or any other personsshowing a substantial interest in thesubject matter of the investigations mayrequest a public hearing, provided suchrequest is filed in writing with theProgram Manager, Office of TradeAdjustment Assistance, at the addressshown below, not later than February 3,1997.

Interested person are invited tosubmit written comments regarding thesubject matter of the investigations tothe Program Manager, Office of TradeAdjustment Assistance, at the addressshown below, not later than February 3,1997.

The petitions filed in this case areavailable for inspection at the Office ofthe Program Manager, Office of TradeAdjustment Assistance, Employmentand Training Administration, U.S.Department of Labor, 200 ConstitutionAvenue, NW., Washington, DC 20210.

Signed at Washington, D.C. this 23rd dayof December, 1996.Russell T. Kile,Program Manager, Policy & ReemploymentServices, Office of Trade AdjustmentAssistance.

Appendix

PETITIONS INSTITUTED ON 12/23/96

TA–W Subject firm(Petitioners) Location Date of

petition Product(s)

33,036 ............. S.D. Warren (Wkrs) ......................... Westbrook, ME ................................ 12/04/96 Coated and Specialty Paper.33,037 ............. Blue Bird Fabrics Corp (Wkrs) ........ York, PA .......................................... 12/04/96 Woven Fabrics.33,038 ............. Metra Health (Wkrs) ........................ Milwaukee, WI ................................. 12/04/96 Claim Processing.33,039 ............. Brunswick Marine (Wkrs) ................ Nappenee, IN .................................. 12/02/96 Fishing and Recreational Boats.33,040 ............. CWS Fashions (Co.) ....................... Lenoir, NC ....................................... 12/05/96 Cut and Sew Children’s Activewear.33,041 ............. Roederstein Electronics (Co.) ......... Statesville, NC ................................. 12/09/96 Plastic Film Capacitors.33,042 ............. Komatsu America (IAMAW) ............ Galion, OH ...................................... 12/10/96 Spindles, Wheels.


PETITIONS INSTITUTED ON 12/23/96—Continued

TA–W Subject firm(Petitioners) Location Date of

petition Product(s)

33,043 ............. United Technologies (IBEW) ........... Zanesville, OH ................................. 12/06/96 Automotive Wiring Harnesses.33,044 ............. Butler Sales Agency, Inc. (Co.) ...... Eau Claire, WI ................................. 12/04/96 Sales Organization for US Fluores-

cent.33,045 ............. Union City Body (UAW) .................. Union City, IN .................................. 12/09/96 Delivery Vans.33,046 ............. Kalina Sportswear, Inc. (Co.) .......... Hammonton, NJ .............................. 12/09/96 Ladies’ Jackets.33,047 ............. Lance Garment (Co.) ...................... Redbay, AL ..................................... 12/12/96 Men’s Casual Shirts.33,048 ............. Hamilton Beach (Co.) ...................... Washington, NC .............................. 11/27/96 Electronic Houseware.33,049 ............. Washington Public Power (IBEW) .. Richland, WA .................................. 11/22/96 Electricity.33,050 ............. Ithaca Industries (Co.) ..................... Thomasville, GA .............................. 12/04/96 Ladies’ Underwear.


[TA–W–33,026]

Sportswear Associates, Incorporated,Clay Sportswear Division (AKA AboutSportswear) Moss, Tennessee; Noticeof Termination of Investigation

Pursuant to Section 221 of the TradeAct of 1974, an investigation wasinitiated on December 16, 1996 inresponse to a worker petition which wasfiled on December 16, 1996 on behalf ofworkers at Sportswear Associates,Incorporated, Clay Sportswear Division,Moss, Tennessee.

The petitioning group of workers issubject to an ongoing investigation forwhich a determination has not yet beenissued (TA–W–32,870). Consequently,further investigation in this case wouldserve no purpose, and the investigationhas been terminated.

Signed in Washington, D.C. this 20th dayof December, 1996.Linda G. Poole,Acting Program Manager, Policy andReemployment Services, Office of TradeAdjustment Assistance.[FR Doc. 97–1667 Filed 1–22–97; 8:45 am]BILLING CODE 4510–30–M

[NAFTA—01258–01258A]

Amended Negative DeterminationEligibility To Apply for NAFTA-Transitional Adjustment Assistance

In accordance with Section 250(a),Subchapter D, Chapter 2, Title II, of theTrade Act of 1974, as amended (19U.S.C. 2273), the Department of Laborissued a Negative Determination forNAFTA-Transitional AdjustmentAssistance on November 8, 1996,applicable to all workers of RiverHeights Inc. located in Crump,Tennessee. The negative determinationwas published in the Federal Registeron November 27, 1996 (61 FR 60310).

At the request of the State agency, theDepartment reviewed the determinationfor workers of the subject firm. The newfindings show that when thedetermination was issued, theDepartment inadvertently omittedworkers of the Selmer, Tennesseelocation of River Heights Inc. whichclosed May 1996. The workers wereengaged in employment related to theproduction of knit shirts. Accordingly,the Department is amending thenegative determination to includeworkers at River Heights Inc., Selmer,Tennessee.

The amended notice applicable toNAFTA–01258 is hereby issued asfollows:

‘‘All workers of River Heights Inc., Crump,Tennessee (NAFTA–01258) and Selmer,Tennessee (NAFTA–01258A), are deniedeligibility to apply for NAFTA–TAA underSection 250 of the Trade Act of 1974.’’

Signed in Washington, D.C., this 9th day ofJanuary 1997.Russell T. Kile,Program Manager, Policy and ReemploymentServices, Office of Trade AdjustmentAssistance.[FR Doc. 97–1660 Filed 1–22–97; 8:45 am]BILLING CODE 4510–30–M

Employment Standards Administration

Proposed Collection; CommentRequest

ACTION: Notice.

SUMMARY: The Department of Labor, aspart of its continuing effort to reducepaperwork and respondent burden,conducts a preclearance consultationprogram to provide the general publicand Federal agencies with anopportunity to comment on proposedand/or continuing collections ofinformation in accordance with thePaperwork Reduction Act of 1995(PRA95) [44 U.S.C. 3506(c)(2)(A)]. Thisprogram helps to ensure that requesteddata can be provided in the desiredformat, reporting burden (time and

financial resources) is minimized,collection instruments are clearlyunderstood, and the impact of collectionrequirements on respondents can beproperly assessed. Currently, theEmployment Standards Administrationis soliciting comments concerning two(2) information collections: theproposed extension of (1) Optional UsePayroll Form Under the Davis-BaconAct, WH–347 and (2) Requests forMedical Reports, LS–158, LS–415, andLS–525. Copies of the proposedinformation collection requests can beobtained by contacting the office listedbelow in the addressee section of thisnotice.DATES: Written comments must besubmitted to the office listed in theaddressee section below on or beforeMarch 25, 1997. The Department ofLabor is particularly interested incomments which:

*evaluate whether the proposedcollection of information is necessaryfor the proper performance of thefunctions of the agency, includingwhether the information will havepractical utility;

*evaluate the accuracy of the agency’sestimate of the burden of the proposedcollection of information, including thevalidity of the methodology andassumptions used;

*enhance the quality, utility andclarity of the information to becollected; and minimize the burden ofthe collection of information on thosewho are to respond, including throughthe use of appropriate automated,electronic, mechanical, or othertechnological collection techniques orother forms of information technology,e.g., permitting electronic submissionsof responses.ADDRESSES: For the Davis-Bacon formsubmission, contact Mr. Rich Elman,U.S. Department of Labor, 200Constitution Ave., N.W., Room S–3201,Washington, D.C. 20210, telephone(202) 219–6375.

For the Longshore medical reportssubmission, contact Ms. Margaret J.


Sherrill at the same office addressabove, telephone (202) 219–7601. (Thetelephone numbers are not toll-free;FAX 202–219–6592.)


I. BackgroundThe Copeland Act (40 U.S.C. 276c)

requires contractors and subcontractorsperforming work on Federally financedor assisted construction contracts to‘‘furnish weekly, statement with respectto the wages paid each employee duringthe preceding week.’’ Section5.5(a)(3)(ii) of Regulations, 29 CFR Part5, provides that contractors submitweekly a copy of all payrolls to theFederal agency contracting for orfinancing the construction project. FormWH–347, Optional Use Payroll Form,was developed for contractor use inmeeting these payroll requirements. It isa report form requiring basic payrollinformation to be furnished by allcovered employers each week that anywork covered by the Davis-Bacon andRelated Acts is performed. Thecompleted form is submitted weekly tothe contracting agency or copies of thecontractor’s payroll containing all therequired information may be submittedinstead.

II. Current ActionsThe Department of Labor seeks

extension of approval to collect thisinformation in order to enablecontractors and subcontractors (usingoptional form, WH–347) to certify theirpayrolls, attesting that proper wage ratesand fringe benefits have been paid totheir employees performing work oncontracts covered by Davis-Bacon andRelated Acts. If this information was notcollected, contracting officials and Wageand Hour investigative staff would be

unable to verify that legal rates havebeen paid and whether employees havebeen properly classified for the workthey perform.

Type of Review: ExtensionAgency: Employment Standards

AdministrationTitle: Optional Use Payroll Form

Under the Davis-Bacon ActOMB Number: 1215–0149Affected Public: Business or other for-

profit; individuals or households;Federal government; State, Local orTribal government

Total Respondents: 113,022Frequency: WeeklyTotal Responses: 10,398,024Average Time Per Response for

Reporting: 56 minutesEstimated Total Burden Hours:

9,700,000Total Burden Cost (capital/startup):

$0Total Burden Cost (operating/

maintenance): $363,931

I. BackgroundThe Longshore and Harbor Workers’

Compensation Act, as amendedprovides benefits to workers injured inmaritime employment. In addition,several Acts extend Longshore Actcoverage to certain other employees.The Secretary of labor is authorized,under the Act, to make rules andregulations to administer the Act and itsextensions. Section 7(b) of the Act (20CFR 702.408) requires supervision ofthe medical care rendered to injuredemployees, require periodic reports asto the medical care being rendered, andprovides authority to determine thenecessity, character, and sufficiency ofany medical aid furnished or to befurnished to an injured worker.

Forms LS–158, LS–415, and LS–525are used to request impartial medical

examinations pursuant to the provisionsof Section 7(a) and 7(e) of the Act. TheLS–158 and LS–415 are used to requestan impartial physical examination of theemployee (LS–158), and for the repair ofartificial limbs issued to beneficiaries(LS–415). The form LS–525 is used forexaminations involving audiometrictesting otologic evaluation, and isforwarded to the physician by theprogram. Completed forms are used toassist in evaluating workers’ claims forbenefits.

II. Current Actions

The Department of Labor seeksextension of approval to collect thisinformation in order to provide theOffice of Workers’ CompensationProgram with detailed medicalevaluation to make decisions to awardor continue compensation payments orbenefits to Longshore workers. If theinformation was not collected,claimants would not be able to file forand receive Longshore benefitsstipulated in the Act and amendments.

Type of Review: ExtensionAgency: Employment Standards

AdministrationTitles: Request for Medical

Examination and Report; Request forArtificial Limb or Repairs; and, Requestfor an Examination of Employee’sHearing Ability (form letter).

OMB Number: 1215–0106Affected Public: Business or other for-

profit; individuals or householdsTotal Respondents: 2,520Frequency: On occasionTotal Responses: 2,520Average Time per Response: 30

minutesEstimated Burden Hours: 1,260

Form Respondents Responses Burden hours

LS–158 ......................................................................................................................................... 1,000 1,000 500LS–415 ......................................................................................................................................... 20 20 10LS–525 ......................................................................................................................................... 1,500 1,500 750

Total ...................................................................................................................................... 2,520 2,520 1,260

Total Burden Cost (capital/startup):$0

Total Burden Cost (operating/maintenance): $882.00

Comments submitted in response tothis notice will be summarized and/orincluded in the request for Office ofManagement and Budget approval of theinformation collection requests; theywill also become a matter of publicrecord.

Dated: January 17, 1997.Cecily A. Rayburn,Director, Division of Financial Management,Office of Management, Administration andPlanning, Employment StandardsAdministration.[FR Doc. 97–1668 Filed 1–22–97; 8:45 am]BILLING CODE 4510–27–M

Occupational Safety and HealthAdministration

Minnesota State Standards; Notice ofApproval

Background

Part 1953 of Title 29, Code of FederalRegulations, prescribes proceduresunder section 18 of the OccupationalSafety and Health Act of 1970 (29 U.S.C.667) (hereinafter called the Act) bywhich the Regional Administrator for


the Occupational Safety and Health(hereinafter called the RegionalAdministrator), under delegation ofauthority from the Assistant Secretary ofLabor for Occupational Safety andHealth (hereinafter called the AssistantSecretary) (29 CFR 1953.4), will reviewand approve standards promulgatedpursuant to a State plan, which has beenapproved in accordance with section18(c) of the Act and 29 CFR Part 1902.On June 8, 1973, notice was publishedin the Federal Register (38 FR 15076) ofthe approval of the Minnesota plan andthe adoption of Subpart N of Part 1952containing the decision. The Minnesotaplan provides for the adoption ofFederal standards as State standards byreference after an opportunity for publiccomment and/or requests for publichearings. OSHA regulations (29 CFR1953.22 and 23) require that Statesrespond to the adoption of new orrevised permanent Federal standards byState promulgation of comparablestandards within six months ofpublication in the Federal Register, andwithin 30 days for emergency temporarystandards. Although adopted Federalstandards or revisions to standards mustbe submitted for OSHA review andapproval under procedures set forth inPart 1953, they are enforceable by thestate prior to federal review andapproval. By a letter dated December 13,1993, the State submitted StateStandards which are comparable toOccupational Exposure to 4,4’-Methylenedianiline (MDA); Approval ofInformation Collection Requirements, aspublished in the Federal Register (57FR 49649) on November 3, 1992;Control of Hazardous Energy Sources(Lockout/Tagout); SupplementalStatement of Reasons, as published inthe Federal Register (58 FR 16612) onMarch 30, 1993; Occupational Exposureto Cadmium; Corrections andAmendments to Final Rule, aspublished in the Federal Register (58FR 21778) on April 23, 1993; and LeadExposure in Construction; Interim FinalRule, as published in the FederalRegister (58 FR 26590) on May 4, 1993.The order of adoption was published inthe State Register (18 S.R. 1065) onOctober 11, 1993, pursuant toMinnesota Statute 182.655 (1992), andwent into effect on October 16, 1993. Bya letter dated August 4, 1994, the Statesubmitted State Standards which arecomparable to Safety Standards forGeneral Industry and Construction;Technical Amendments, as published inthe Federal Register (58 FR 35306) onJune 30, 1993; Electric PowerGeneration, Transmission andDistribution; Electrical Protective

Equipment, as published in the FederalRegister (59 FR 4320) on January 31,1994; Occupational Safety and HealthStandards for Cadmium in ShipyardEmployment and Construction; FinalRule—Miscellaneous Corrections andTechnical Amendments, as published inthe Federal Register (59 FR 146) onJanuary 3, 1994; and OccupationalExposure to Lead in Construction;Interim Final Rule—Approval ofInformation Collection Requirements, aspublished in the Federal Register (58FR 34218) on June 24, 1993. The letteralso served to incorporate intoMinnesota Rules the redesignation ofthe regulatory text of the generalindustry standards that have beenidentified as applicable to constructionwork as published in the FederalRegister (58 FR 35076) and corrected inthe Federal Register (58 FR 40468) onJuly 28, 1993. The order of adoption waspublished in the State Register (19 S.R.187) on July 25, 1994, pursuant toMinnesota Statute 182.655 (1992), andwent into effect on July 30, 1994, withthe exception of 1910.269(a)(2) whichwas effective January 31, 1995. By aletter dated November 17, 1994, theState submitted State Standards whichare comparable to Grain HandlingFacilities; Final Decision Statement, aspublished in the Federal Register (59FR 15339) on April 1, 1994; PersonalProtective Equipment for GeneralIndustry; Final Rule, as published in theFederal Register (59 FR 16334) on April6, 1994; and Electric Power Generation,Transmission, and Distribution;Electrical Protective Equipment; FinalRule—Stay of Enforcement of CertainProvision and Correction, as publishedin the Federal Register (59 FR 33658) onJune 30, 1994. The order of adoptionwas published in the State Register (19S.R. 887) on October 24, 1994, pursuantto Minnesota Statute 182.655 (1992),and went into effect on October 29,1994.

By a letter dated January 18, 1995, theState submitted State Standards whichare comparable to OccupationalExposure to Asbestos in Construction(1926.1101), General Industry(1910.1001), and Shipyard Employment(1915.1001), as published in the FederalRegister (59 FR 40964) on August 10,1994; Retention of DOT Markings,Placards, and Labels (1910.1201,1915.100, 1917.29, 1918.100, and1926.61), as published in the FederalRegister (59 FR 36695) on July 19, 1994;Safety Standard for Fall Protection inConstruction (1926, Subpart M), aspublished in the Federal Register (59FR 40672) on August 9, 1994;Amendments to the Hazardous Waste

Operations and Emergency ResponseStandard (1910.120 and 1926.65), aspublished in the Federal Register (59FR 43268) on August 22, 1994; andConfined and Enclosed Spaces andother Dangerous Atmospheres inShipyard Employments, as published inthe Federal Register (59 FR 37816) onJuly 25, 1994. The order of adoption waspublished in the State Register (19 S.R.1459) on January 3, 1995, pursuant toMinnesota Statute 182.655 (1992), andwent into effect on January 8, 1995, withthe exception of the Fall Protection inConstruction Standard which waseffective February 6, 1995. By a letterdated March 27, 1995, the Statesubmitted a State Standard which iscomparable to Logging Operations, FinalRule, as published in the FederalRegister (59 FR 51672) on October 12,1994. The order of adoption waspublished in the State Register (19 S.R.1900) on March 13, 1995, pursuant toMinnesota Statute 182.655 (1992), andwent into effect on March 18, 1995.These standards, which are contained inthe Minnesota Occupational Safety andHealth Codes and Rules, werepromulgated after notice was publishedoffering an opportunity for publiccomments and/or requests for publichearings.

DecisionHaving reviewed the State submission

in comparison with the Federalstandards, it has been determined thatthe State standards and amendments areidentical to the Federal standards andaccordingly are approved.

Location of Supplement for Inspectionand Copying

A copy of the standards supplement,along with the approved plan, may beinspected and copied during normalbusiness hours at the followinglocations: Office of the RegionalAdministrator, Occupational Safety andHealth Administration, 230 S. DearbornStreet, Room 3244, Chicago, Illinois60604; State of Minnesota, Departmentof Labor and Industry, 443 LafayetteRoad, St. Paul, Minnesota 55155; andthe Directorate of Federal-StateOperations, Room N3700, 200Constitution Avenue, NW., Washington,DC 20210. For electronic copies of thisFederal Register notice, contact OSHA’sWeb Page at http://www.osha.gov/.

Public ParticipationUnder 29 CFR 1953.2(c), the Assistant

Secretary may prescribe alternativeprocedures to expedite the reviewprocess, or for other good cause whichmay be consistent with applicable laws.The Assistant Secretary finds that good


cause exists for not publishing thesupplement to the Minnesota State Planas a proposed change and makes theRegional Administrator’s approvaleffective upon publication for thefollowing reasons:

1. The standards are identical to theFederal standards which werepromulgated in accordance with Federallaw including meeting requirements forpublic participation.

2. The standards were adopted inaccordance with the proceduralrequirements of State law and furtherparticipation would be unnecessary.

This decision is effective January 23,1997.(Sec. 18, Pub. L. 91–596, 84 Stat. 1608 [29U.S.C. 667])

Signed at Chicago, Illinois this 4th day ofNovember 1996.Sandra J. Taylor,Acting Regional Administrator.[FR Doc. 97–1565 Filed 1–22–97; 8:45 am]BILLING CODE 4510–26–P

Washington State Standards; Notice ofApproval

1. BackgroundPart 1953 of Title 29, Code of Federal

Regulations, prescribes proceduresunder Section 18 of the OccupationalSafety and Health Act of 1970(hereinafter called the Act) by which theRegional Administrator forOccupational Safety and Health(hereinafter called RegionalAdministrator) under a delegation ofauthority from the Assistant Secretary ofLabor for Occupational Safety andHealth (hereinafter called the AssistantSecretary) (29 CFR 1953.4) will reviewand approve standards promulgatedpursuant to a State plan which has beenapproved in accordance with Section18(c) of the Act and 29 CFR Part 1902.On January 26, 1973, notice waspublished in the Federal Register (38FR 2421) of the approval of theWashington plan and the adoption ofSubpart F to Part 1952 containing thedecision.

The Washington plan provides for theadoption of State standards that are atleast as effective as comparable Federalstandards promulgated under Section 6of the Act. Section 1953.20 providesthat where any alteration in the Federalprogram could have an adverse impacton the at least as effective as status ofthe State program, a program changesupplement to a State plan shall berequired.

In response to a Federal standardchange, the State submitted by letterdated March 6, 1995, from Mark O.

Brown, Director, to Richard S. Terrill,Acting Regional Administrator, a Statestandard identical to the Federalstandards 29 CFR 1910.1201, 29 CFR1915.100, 29 CFR 1917.29, 29 CFR1918.100 and 29 CFR 1926.61, Retentionof DOT Markings, Placards and Labels,published in the Federal Register (59FR 36695) on July 19, 1994. The Statestandard was adopted on January 18,1995, effective March 10, 1995, underWashington Administrative Order 94–19.

In response to Federal and Stateinitiated standard changes, the Statesubmitted by a letter dated December20, 1991, from Mark O. Brown, Director,to James W. Lake, RegionalAdministrator, State standardamendments comparable to 1910.1025,Lead, published in the Federal Register(56 FR 24686) on May 31, 1991. Theminor State initiated amendmentsincluded the incorporation of theappendices and a summary of employerresponsibility regarding the leadstandard provisions. The change wasadopted in Administrative Order 91–07on November 22, 1991, effectiveDecember 24, 1991.

In response to a new Federalstandard, the State submitted by letterdated November 17, 1993, from Mark O.Brown, Director, to James W. Lake,Regional Administrator, a State standardcomparable to the Federal standard 29CFR 1926.62, Lead Exposure inConstruction; Interim Final Rule,published in the Federal Register (58FR 26590) on May 4, 1993. The Statestandard was adopted on October 29,1993, effective December 10, 1993,under Washington Administrative Order93–07. The State requires each employerto protect his/her own employees ratherthan for contractors on multi-contractorworksites to make arrangements amongthemselves. Other minor differencesinclude correction of errors and deletionof the word ‘‘interim’’.

On its own initiative, the Statesubmitted by letter dated March 6, 1995,from Mark O. Brown, Director, toRichard S. Terrill, Acting RegionalAdministrator, a State standardamendment comparable to 29 CFR1910.1025, Lead. The amendments adda new non-mandatory Appendix E tothe previously approved WAC 296–62–07521, Lead standard. The Stateamendments were adopted on January30, 1995, effective March 3, 1995, underWashington Administrative Order 94–15.

On its own initiative, the State hassubmitted by letter dated June 20, 1991,from Joseph A. Dear, Director, to JamesW. Lake, Regional Administrator, a Statestandard amendment which prohibits

the use of 4x29 inch wire rope in anymaritime ‘‘running rigging’’. The Statestandard is comparable to 29 CFR1917.43, Miscellaneous Auxiliary Gear.The change was adopted inAdministrative Order 91–01 on May 20,1991, effective June 20, 1991.

On its own initiative, the State hassubmitted by letter dated February 9,1990, from Joseph A. Dear, Director, toJames W. Lake, Regional Administrator,amendments to the previously approvedGeneral Safety and Health Standards,WAC 296–24, which incorporated someof the Washington Industrial Safety andHealth Administration (WISHA)Regional Directives (WRD) intoappropriate standards. The significantState standard amendments are: WAC296–24–15001(7), guarding of foodwaste disposal equipment: WAC 296–24–16517 additional requirements forthe guarding and labeling of radial saws;WAC 296–24–20503(5), specificconditions that are required to befollowed when operating sewingmachines; WAC 296–24–550, requiresmeans of egress for all buildings to bein accordance with the 1985 NationalFire Code, (NFPA); WAC 296–24–78007(6), specific constructionrequirements for Jacob’s ladders; WAC296–24–82503, additional requirementsfor swinging scaffolds, use of screwshackles, hooks on blocks and lifelinessize. The State amendments wereadopted on January 11, 1990, effectiveFebruary 26, 1990, under WashingtonAdministrative Order 89–20.

On its own initiative, the Statesubmitted by letter dated February 8,1991, from Joseph A. Dear, Director, toJames W. Lake, Regional Administrator,amendments to the previously approvedWAC 296–155–950, Rollover ProtectiveStructures for Material HandlingEquipment. The significant statestandard amendment, whichincorporated a Washington IndustrialSafety and Health Administration(WISHA) Regional Directive (WRD),references the 1980 Society ofAutomotive Engineers (SAE) testcriteria. The State amendments wereadopted on January 10, 1991, effectiveFebruary 12, 1991, under WashingtonAdministrative Order 90–18.

On its own initiative, the Statesubmitted by letter dated June 20, 1991,from Joseph A. Dear, Director, to JamesW. Lake, Regional Administrator, a Statestandard amendment comparable to 29CFR 1910.243(d)(1)(i) and 29 CFR1910.243(d)(3)(iv), Guarding of PortablePowered Tools. The State standard wasamended to adopt the 1985 edition ofANSI A10.3, Safety Requirements forPower Actuated Fastening Systems. TheState amendments were adopted May


20, 1991, effective June 20, 1991, underWashington Administrative Order 91–01.

On its own initiative, the Statesubmitted by letter dated August 19,1994, from Mark O. Brown, Director, toJames W. Lake, Regional Administrator,a State standard amendment comparableto 29 CFR 1910, General Safety andHealth Standards. The State standard atWAC 296–24 was amended to addgender neutral language and make otherhousekeeping changes. The Stateamendments were adopted July 20,1994, effective September 20, 1994,under Washington Administrative Order94–07.

On its own initiative, the Statesubmitted by letter dated January 4,1993, from Joseph A. Dear, Director, toJames W. Lake, Regional Administrator,a State standard amendment comparableto 29 CFR 1926.201(a)(3) and 29 CFR1926.210(a)(4), Signaling. The Statestandard was amended to adopt: currentedition of ANSI D6.1, Uniform TrafficControl Devices; approved trainingevery three years; and flaggers musthave in their possession a certificateverifying required training. The Stateamendments were adopted December11, 1992, effective January 15, 1993,under Washington Administrative Order92–15.

On its own initiative, the Statesubmitted by letter dated October 22,1993, from Mark O. Brown, Director, toJames W. Lake, Regional Administrator,a State standard amendment comparableto 29 CFR 1926.200(g)(2) and 29 CFR1926.200(h)(1)(i), Accident PreventionSigns and Tags. The State standard wasamended to not only require signs, butto clarify that all traffic control signsand devices used in construction mustbe made and installed according to the1988 edition of ANSI D6.1, UniformTraffic Control Devices for Street andHighways. The State amendments wereadopted December 11, 1992, effectiveJanuary 15, 1993, under WashingtonAdministrative Order 92–15; and wereadopted September 22, 1993, effectiveNovember 1, 1993, under WashingtonAdministrative Order 93–04.

On its own initiative, the Statesubmitted by letter dated October 26,1994, from Mark O. Brown, Director, toJames W. Lake, Regional Administrator,amendments to the previously approvedWAC 296–306–020, Serious InjuryReporting. The amendments were toincorporate the April 1, 1994 Federalreporting requirements in 29 CFR1904.8, which reduced the reportingtime from 24 to 8 hours, into the Stateof Washington’s vertical Agriculturestandard. The State amendments wereadopted on September 30, 1994,

effective November 20, 1994, underWashington Administrative Order 94–16.

On its own initiative, the Statesubmitted by letter dated October 14,1992, from Mark O. Brown, Director, toJames W. Lake, Regional Administrator,amendments to the previously approvedState standard, WAC 296–78–515,Management’s Responsibility. Theamendments incorporated the April 1,1994 Federal reporting requirements in29 CFR 1904.8 into the State ofWashington’s Sawmills andWoodworking Operations standard. TheState amendments were adopted onSeptember 30, 1994, effective November20, 1994, under WashingtonAdministrative Order 94–16.

In response to Federal and Stateinitiated standard changes, the Statesubmitted by a letter dated June 20,1991, from Joseph A. Dear, Director toJames W. Lake, Regional Administrator,a State standard amendment comparableto 29 CFR 1926.100(c), Head Protection.In response to a U.S. Supreme Courtdecision, which denied relief to anyindividual from the obligation tocomply with a neutral, generallyapplicable regulatory law, the Stateeliminated language that gave anexemption for wearing hard hats to OldOrder Amish and Sikh DharmaBrotherhood. The amendment wasadopted in Administrative Order 91–01on May 20, 1991, effective June 20,1991.

On its own initiative, the Statesubmitted by letter dated June 20, 1991,from Joseph A. Dear, Director, to JamesW. Lake, Regional Administrator, Statestandard amendments to WAC 296–62–07540, Formaldehyde. This standardwas originally approved in the FederalRegister (57 FR 12947) on April 14,1992. The State initiated amendmentsadd WAC references comparable tothose in the Federal Formaldehydestandard. The State standardamendments were adopted underWashington Administrative Order 91–01 on May 20, 1991, effective June 20,1991.

In response to Federal standardchanges, the State submitted by letterdated November 30, 1992, from JosephA. Dear, Director, to James W. Lake,Regional Administrator, corrections tothe State standard at WAC 296–62–07540 comparable to corrections to theFederal standard, 29 CFR 1910.1048,Formaldehyde, as published in theFederal Register (57 FR 22290) on May27, 1992, (57 FR 24701) on June 10,1992, and (57 FR 27160) on June 18,1992. The State corrections arecontained in Administratsive Order 92–

13, adopted November 10, 1992,effective December 18, 1992.

All of the administrative orders wereadopted pursuant to RCW 34.04.040(2),49.17.040, 49.17.050, Public MeetingsAct RCW 42.30, AdministrativeProcedures Act RCW 34.04, and theState Register Act RCW 34.08. Thesestandards changes have beenincorporated as part of the State plan.

2. DecisionOSHA has determined that the State

standard amendments for MiscellaneousAuxiliary Gear, General Safety andHealth Standards (1990), RolloverProtective Structures for MaterialHandling Equipment, Guarding ofPortable Power Tools, Signaling, andAccident Prevention Signs and Tags areat least as effective as the comparableFederal standards, as required bySection 18(c)(2) of the Act. Theseamendments have been in effect since atleast November, 1993. During this timeOSHA has received no indication ofsignificant objection to these differentState standards either as to theireffectiveness in comparison to theFederal standards or as to theirconformance with product clauserequirements of section 18(c)(2) of theAct. (A different State standardapplicable to a product which isdistributed or used in interstatecommerce must be required bycompelling local conditions and notunduly burden interstate commerce.)OSHA has also determined that thedifferences between the State andFederal amendments for Lead, Lead inConstruction, General Safety and HealthStandards (1994), Serious InjuryReporting, Management’sResponsibility, Head Protection andFormaldehyde are minimal and that theState amendments are thus substantiallyidentical. OSHA therefore approvesthese amendments; however, the right toreconsider this approval is reservedshould substantial objections besubmitted to the Assistant Secretary. Inaddition, OSHA has determined that theState amendment for Retention of DOTMarkings, Placards and Labels isidentical to the comparable Federalstandard, and therefore approves theamendment.

3. Location of Supplement forInspection and Copying

A copy of the standards supplement,along with the approved plan, may beinspected and copied during normalbusiness hours at the followinglocations: Office of the RegionalAdministrator, Occupational Safety andHealth Administration, 1111 ThirdAvenue, Suite 715, Seattle, Washington


98101–3212; State of WashingtonDepartment of Labor and Industries,7273 Linderson Way, S.W., Tumwater,Washington 98501; and the Office ofState Programs, Occupational Safety andHealth Administration, Room N–3700,200 Constitution Avenue, NW,Washington, D.C. 20210.

4. Public Participation

Under 29 CFR 1953.2(c), the AssistantSecretary may prescribe alternativeprocedures to expedite the reviewprocess or for other good cause whichmay be consistent with applicable laws.The Assistant Secretary finds that goodcause exists for not publishing thesupplement to the Washington StatePlan as a proposed change and makingthe Regional Administrator’s approvaleffective upon publication for thefollowing reasons:

1. The standard amendments are aseffective as the Federal standards whichwere promulgated in accordance withthe Federal law, including meetingrequirements for public participation.

2. The standard amendments wereadopted in accordance with theprocedural requirements of State lawand further public participation wouldbe repetitious.

This decision is effective January 23,1997.(Sec. 18, Pub. L. 91–596, 84 STAT. 6108 [29U.S.C. 667]).

Signed at Seattle, Washington, this 10thday of December 1996.Richard S. Terrill,Acting Regional Administrator.[FR Doc. 97–1564 Filed 1–22–97; 8:45 am]BILLING CODE 4510–26–P

NATIONAL AERONAUTICS ANDSPACE ADMINISTRATION

[Notice (97–006)]

NASA Advisory Council, Life andMicrogravity Sciences andApplications Advisory Committee,Space Station Utilization AdvisorySubcommittee; Meeting

AGENCY: National Aeronautics andSpace Administration.ACTION: Notice of meeting.

SUMMARY: In accordance with theFederal Advisory Committee Act. PublicLaw 92–463, as amended, the NationalAeronautics and Space Administrationannounces a forthcoming meeting of theNASA Advisory Council, Life andMicrogravity Sciences and ApplicationsAdvisory Committee, Space StationUtilization Advisory Subcommittee.

DATES: February 11, 1997, 8 a.m. to 5p.m.; February 12, 1997, 8 a.m. to 5p.m.; February 13, 1997, 8 a.m. to 2 p.m.ADDRESSES: Nassau Bay Hilton, 3000NASA Road 1, Houston, TX.FOR FURTHER INFORMATION CONTACT:Dr. Edmond M. Reeves, Code US,National Aeronautics and SpaceAdministration, Washington, DC, 20546,202/358–2560.SUPPLEMENTARY INFORMATION: Themeeting will be open to the public upto the seating capacity of the room.Advance notice of attendance to theExecutive Secretary is requested. theagenda for the meeting is as follows:—Station program update—Science and technology utilization

plans and requirements—Microgravity environment and

vibration isolation—Telescience requirements and

communications capabilities—Plans for the Office of Life and

Microgravity Sciences andApplications Advisory Committeereorganization

—Other topics related to the scientific,technologies, and commercialutilization of the Space Station maybe included in the meetingdiscussions.It is imperative that the meeting be

held on these dates to accommodate thescheduling priorities of the keyparticipants. Visitors will be requestedto sign a visitor’s register.

Dated: January 14, 1997.Leslie M. Nolan,Advisory Committee Management Officer,National Aeronautics and SpaceAdministration.[FR Doc. 97–1621 Filed 1–22–97; 8:45 am]BILLING CODE 7510–01–M

NUCLEAR REGULATORYCOMMISSION

[Docket No. 50–362]

Southern California Edison Company;Notice of Consideration of Issuance ofAmendment to Facility OperatingLicense, Proposed no SignificantHazards Consideration Determination,and Opportunity for a Hearing

The U.S. Nuclear RegulatoryCommission (the Commission) isconsidering issuance of an amendmentto Facility Operating License No. NPF–15 issued to Southern California EdisonCompany (the licensee) for operation ofthe San Onofre Nuclear GeneratingStation (SONGS), Unit No. 3 located inSan Diego County, California.

The proposed amendment wouldreplace Surveillance Requirements

3.8.1.14 and 3.8.1.15 until the SONGSUnit 3 Cycle 9 refueling outage(currently scheduled to begin on April5, 1997), with surveillance requirementsthat were in force when thesesurveillances were last performed.

The exigent circumstances for this TSamendment request exist due to therecent discovery of the inappropriatecrediting of previous test results to thepost-Technical SpecificationImprovement Program SRs.

Before issuance of the proposedlicense amendment, the Commissionwill have made findings required by theAtomic Energy Act of 1954, as amended(the Act) and the Commission’sregulations.

Pursuant to 10 CFR 50.91(a)(6) foramendments to be granted underexigent circumstances, the NRC staffmust determine that the amendmentrequest involves no significant hazardsconsideration. Under the Commission’sregulations in 10 CFR 50.92, this meansthat operation of the facility inaccordance with the proposedamendment would not (1) involve asignificant increase in the probability orconsequences of an accident previouslyevaluated; or (2) create the possibility ofa new or different kind of accident fromany accident previously evaluated; or(3) involve a significant reduction in amargin of safety. As required by 10 CFR50.91(a), the licensee has provided itsanalysis of the issue of no significanthazards consideration, which ispresented below:

1. The proposed change does not involvea significant increase in the probability orconsequences of an accident previouslyevaluated.

The proposed change would temporarilyreplace Surveillance Requirements (SRs) SR3.8.1.14 and 3.8.1.15 with the SRs that hadexisted for this testing in the TechnicalSpecifications (TSs) prior to the TechnicalSpecification Improvement Program (TSIP).

Operation of the facility would remainunchanged as a result of the proposedchanges and no assumptions or results of anyaccident analyses are affected. Therefore, theproposed change will not involve asignificant increase in the probability orconsequences of any accident previouslyevaluated.

2. The proposed change does not create thepossibility of a new or different kind ofaccident from any accident previouslyevaluated.

The proposed change would temporarilyreplace Surveillance Requirements (SRs) SR3.8.1.14 and 3.8.1.15 with the SRs that hadexisted for this testing in the previous (pre-TSIP) TS.

Operation of the facility would remainunchanged as a result of the proposedchange. Therefore, the proposed change willnot create the possibility of a new or differentkind of accident from any accidentpreviously evaluated.


3. The proposed change does not involvea significant reduction in a margin of safety.

The proposed change would temporarilyreplace Surveillance Requirements (SRs) SR3.8.1.14 and 3.8.1.15 with the SRs that hadexisted for this testing in the previous (pre-TSIP) TS. Acceptance of the pre-TSIP test,using higher generator output, would notdeleteriously impact any margin of safety.The generator output of the Emergency DieselGenerator (EDG) is manually adjusted duringthe SRs by the operator conducting the test.Imposing the post-TSIP upper limit is lesssevere on the equipment since this ensuresthe generator output is at a lower level duringthe test. Similarly, operation of the facilitywould remain unchanged as a result of theproposed change. Therefore, the proposedchange will not involve a significantreduction in a margin of safety.

The NRC staff has reviewed thelicensee’s analysis and, based on thisreview, it appears that the threestandards of 10 CFR 50.92(c) aresatisfied. Therefore, the NRC staffproposes to determine that theamendment request involves nosignificant hazards consideration.

The Commission is seeking publiccomments on this proposeddetermination. Any comments receivedwithin 15 days after the date ofpublication of this notice will beconsidered in making any finaldetermination.

Normally, the Commission will notissue the amendment until theexpiration of the 15-day notice period.However, should circumstances changeduring the notice period, such thatfailure to act in a timely way wouldresult, for example, in derating orshutdown of the facility, theCommission may issue the licenseamendment before the expiration of the15-day notice period, provided that itsfinal determination is that theamendment involves no significanthazards consideration. The finaldetermination will consider all publicand State comments received. Shouldthe Commission take this action, it willpublish in the Federal Register a noticeof issuance. The Commission expectsthat the need to take this action willoccur very infrequently.

Written comments may be submittedby mail to the Chief, Rules Review andDirectives Branch, Division of Freedomof Information and PublicationsServices, Office of Administration, U.S.Nuclear Regulatory Commission,Washington, DC 20555–0001, andshould cite the publication date andpage number of this Federal Registernotice. Written comments may also bedelivered to Room 6D22, Two WhiteFlint North, 11545 Rockville Pike,Rockville, Maryland, from 7:30 a.m. to4:15 p.m. Federal workdays. Copies of

written comments received may beexamined at the NRC Public DocumentRoom, the Gelman Building, 2120 LStreet, NW., Washington, DC.

The filing of requests for hearing andpetitions for leave to intervene isdiscussed below.

By February 24, 1997, the licenseemay file a request for a hearing withrespect to issuance of the amendment tothe subject facility operating license andany person whose interest may beaffected by this proceeding and whowishes to participate as a party in theproceeding must file a written requestfor a hearing and a petition for leave tointervene. Requests for a hearing and apetition for leave to intervene shall befiled in accordance with theCommission’s ‘‘Rules of Practice forDomestic Licensing Proceedings’’ in 10CFR Part 2. Interested persons shouldconsult a current copy of 10 CFR 2.714which is available at the Commission’sPublic Document Room, the GelmanBuilding, 2120 L Street, NW.,Washington, DC, and at the local publicdocument room located at the MainLibrary, University of California, P.O.Box 19557, Irvine, California 92713. If arequest for a hearing or petition forleave to intervene is filed by the abovedate, the Commission or an AtomicSafety and Licensing Board, designatedby the Commission or by the Chairmanof the Atomic Safety and LicensingBoard Panel, will rule on the requestand/or petition; and the Secretary or thedesignated Atomic Safety and LicensingBoard will issue a notice of hearing oran appropriate order.

As required by 10 CFR 2.714, apetition for leave to intervene shall setforth with particularity the interest ofthe petitioner in the proceeding, andhow that interest may be affected by theresults of the proceeding. The petitionshould specifically explain the reasonswhy intervention should be permittedwith particular reference to thefollowing factors: (1) The nature of thepetitioner’s right under the Act to bemade a party to the proceeding; (2) thenature and extent of the petitioner’sproperty, financial, or other interest inthe proceeding; and (3) the possibleeffect of any order which may beentered in the proceeding on thepetitioner’s interest. The petition shouldalso identify the specific aspect(s) of thesubject matter of the proceeding as towhich petitioner wishes to intervene.Any person who has filed a petition forleave to intervene or who has beenadmitted as a party may amend thepetition without requesting leave of theBoard up to 15 days prior to the firstprehearing conference scheduled in theproceeding, but such an amended

petition must satisfy the specificityrequirements described above.

Not later than 15 days prior to the firstprehearing conference scheduled in theproceeding, a petitioner shall file asupplement to the petition to intervenewhich must include a list of thecontentions which are sought to belitigated in the matter. Each contentionmust consist of a specific statement ofthe issue of law or fact to be raised orcontroverted. In addition, the petitionershall provide a brief explanation of thebases of the contention and a concisestatement of the alleged facts or expertopinion which support the contentionand on which the petitioner intends torely in proving the contention at thehearing. The petitioner must alsoprovide references to those specificsources and documents of which thepetitioner is aware and on which thepetitioner intends to rely to establishthose facts or expert opinion. Petitionermust provide sufficient information toshow that a genuine dispute exists withthe applicant on a material issue of lawor fact. Contentions shall be limited tomatters within the scope of theamendment under consideration. Thecontention must be one which, ifproven, would entitle the petitioner torelief. A petitioner who fails to file sucha supplement which satisfies theserequirements with respect to at least onecontention will not be permitted toparticipate as a party.

Those permitted to intervene becomeparties to the proceeding, subject to anylimitations in the order granting leave tointervene, and have the opportunity toparticipate fully in the conduct of thehearing, including the opportunity topresent evidence and cross-examinewitnesses.

If the amendment is issued before theexpiration of the 30-day hearing period,the Commission will make a finaldetermination on the issue of nosignificant hazards consideration. If ahearing is requested, the finaldetermination will serve to decide whenthe hearing is held.

If the final determination is that theamendment request involves nosignificant hazards consideration, theCommission may issue the amendmentand make it immediately effective,notwithstanding the request for ahearing. Any hearing held would takeplace after issuance of the amendment.

If the final determination is that theamendment request involves asignificant hazards consideration, anyhearing held would take place beforethe issuance of any amendment.

A request for a hearing or a petitionfor leave to intervene must be filed withthe Secretary of the Commission, U.S.


Nuclear Regulatory Commission,Washington, DC 20555–0001, Attention:Docketing and Services Branch, or maybe delivered to the Commission’s PublicDocument Room, the Gelman Building,2120 L Street, NW., Washington, DC, bythe above date. Where petitions are filedduring the last 10 days of the noticeperiod, it is requested that the petitionerpromptly so inform the Commission bya toll-free telephone call to WesternUnion at 1–(800) 248–5100 (in Missouri1–(800) 342–6700). The Western Unionoperator should be given DatagramIdentification Number N1023 and thefollowing message addressed to WilliamH. Bateman, Director, Project DirectorateIV–2: petitioner’s name and telephonenumber, date petition was mailed, plantname, and publication date and pagenumber of this Federal Register notice.A copy of the petition should also besent to the Office of the GeneralCounsel, U.S. Nuclear RegulatoryCommission, Washington, DC 20555–0001, and to T.E. Oubre, Esquire,Southern California Edison Company,P.O. Box 800, Rosemead, California91770, attorney for the licensee.

Nontimely filings of petitions forleave to intervene, amended petitions,supplemental petitions and/or requestsfor hearing will not be entertainedabsent a determination by theCommission, the presiding officer or thepresiding Atomic Safety and LicensingBoard that the petition and/or requestshould be granted based upon abalancing of the factors specified in 10CFR 2.714(a)(1)(i)–(v) and 2.714(d).

For further details with respect to thisaction, see the application foramendment dated January 13, 1997,which is available for public inspectionat the Commission’s Public DocumentRoom, the Gelman Building, 2120 LStreet, NW., Washington, DC, and at thelocal public document room, located atthe Main Library, University ofCalifornia, P.O. Box 19557, Irvine,California 92713.

Dated at Rockville, Maryland, this 16th dayof January 1997.

For the Nuclear Regulatory Commission.Mel B. Fields,Project Manager, Project Directorate IV–2,Division of Reactor Projects III/IV, Office ofNuclear Reactor Regulation.[FR Doc. 97–1611 Filed 1–22–97; 8:45 am]BILLING CODE 7590–01–P

[Docket No. 50–286]

Power Authority of the State of NewYork; Indian Point Nuclear GeneratingUnit No. 3; Environmental Assessmentand Finding of no Significant Impact

The U.S. Nuclear RegulatoryCommission (the Commission) isconsidering issuance of an amendmentto an exemption from certainrequirements of 10 CFR Part 50,Appendix J, Paragraph III.D.3, Type Ctests, to the Power Authority of the Stateof New York (the licensee) for theIndian Point Nuclear Generating UnitNo. 3, located in Westchester County,New York.

Environmental Assessment

Identification of the Proposed ActionThe proposed action would exempt

the licensee from the requirements of 10CFR Part 50, Appendix J, ParagraphIII.D.3, to the extent that a one-timeextension would be allowed forconducting Type C local leak rate tests(LLRTs) on containment isolationvalves. Appendix J to 10 CFR Part 50requires these tests to be performed atintervals no greater than 2 years. IndianPoint 3 is operating under an existingexemption that allows Type C tests to beconducted at intervals of no greater than30 months. The proposed amendment tothis exemption would extend thecurrent test interval by 41⁄2 months.

The Need for the Proposed ActionThe proposed action would allow the

licensee to complete the currentoperating cycle without a shutdown toconduct a Type C LLRT. The licenseecommenced operating on 24-month fuelcycles, as opposed to the previous 18-month fuel cycles, starting with fuelcycle 9 in August 1992. Therequirements of 10 CFR Part 50,Appendix J, Paragraph III.D.3, indicatethat Type C LLRTs must be performedduring each reactor shutdown forrefueling at intervals no greater than 2years (24 months). In order to conformwith this regulation, the licensee wouldhave to shut down Indian Point NuclearGenerating Unit No. 3 and enter anoutage before the scheduled end of eachfuel cycle.

The NRC staff had previouslyrecognized that certain regulationswould not accommodate fuel cycleslonger than 18-months. Consequently,the NRC staff issued Generic Letter 91–04, ‘‘Changes in Technical SpecificationSurveillance Intervals to Accommodatea 24–Month Fuel Cycle.’’ This genericletter provides guidance to licensees onhow to prepare requests for TSamendments and regulation exemptions

which are needed to accommodate a 24-month fuel cycle. The licensee’s lettersof July 17, 1992, and December 23,1992, which requested the existingexemption, followed the guidance ofGeneric Letter 91–04. An exemptionallowing the licensee to extend theinterval for Type C LLRts was issued onFebruary 19, 1993.

Type C testing for containmentisolation valves was performed duringthe Restart and ContinuousImprovement outage; however, due tothe length of this outage the 30-monthtime interval will expire for some of thecontainment isolation valves prior to thenext refueling outage scheduled forspring 1997. The requested amendmentto the exemption provides for a one-time extension of up to 4 months so thatvalve testing may be done during thenext refueling outage. Deferral of valvetesting will not be used to extend plantoperation beyond May 31, 1997.

Environmental Impacts of the ProposedAction

The Commission has completed itsevaluation of the proposed action andconcludes that the proposedamendment to the existing exemptiondoes not increase the probability orconsequences of accidents previouslyanalyzed and it does not affect facilityradiation levels or facility radiologicaleffluents. The licensee has analyzed theresults of previous LLRTs performed atIndian Point Nuclear Generating UnitNo. 3, and has provided themethodology used in extrapolating theprevious LLRT data to the proposed34.5-month interval. The requestedexemption is also based on increasingthe margin to the allowed combinedleakage rate limit by 25 percent. Thelicensee has provided a sound basis forconcluding that the containment leakagerate would be maintained withinacceptable limits with a maximumLLRT interval of 30 months. The NRCstaff has determined the licensee’sactions are consistent with the guidanceprovided in Generic Letter 91–04.

The change will not increase theprobability or consequences ofaccidents, no changes are being made inthe types of any effluents that may bereleased offsite, and there is nosignificant increase in the allowableindividual or cumulative occupationalradiation exposure. Accordingly, theCommission concludes that there are nosignificant radiological environmentalimpacts associated with the proposedaction.

With regard to potential non-radiological impacts, the proposedexemption involves features locatedentirely within the restricted area as


defined in 10 CFR Part 20. It does notaffect non-radiological plant effluentsand has no other environmental impact.Therefore, the Commission concludesthat there is no significant non-radiological environmental impactassociated with the proposedexemption.

Alternatives to the Proposed Action

Since the Commission has concludedthat there is no measurableenvironmental associated with theproposed action, any alternatives withequal or greater environmental impactsneed not be evaluated. As an alternativeto the proposed action, the staffconsidered denial of the proposedaction. Denial of the application wouldresult in no change in currentenvironmental impacts. Theenvironmental impacts of the proposedaction and the alternative action aresimilar.

Alternative Use of Resources

This action does not involve the useof resources not previously consideredin the Final Environmental StatementRelated to the Operation of Indian PointNuclear Generating Plant Unit No. 3,dated February 1975.

Agencies and Persons Consulted

In accordance with its stated policy,on December 12, 1996, the staffconsulted with the New York Stateofficial, Heidi Voelk, of the New YorkState Energy Research and DevelopmentAuthority regarding the environmentalimpact of the proposed action. The stateofficial had no comments.

Finding of no Significant Impact

Based upon the environmentalassessment, the Commission concludesthat the proposed action will not havea significant effect on the quality of thehuman environment. Accordingly, theCommission has determined not toprepare an environmental impactstatement for the proposed action.

For further details with respect to theproposed action, see the licensee’s letterdated October 1, 1996, as supplementedby letter dated December 5, 1996, whichare available for public inspection at theCommission’s Public Document Room,The Gelman Building, 2120 L Street,NW., Washington, DC, and at the localpublic document room located at theWhite Plains Public Library, 100Martine Avenue, White Plains, NewYork 10601.

Dated at Rockville, Maryland, this 16th dayof January 1997.

For the Nuclear Regulatory Commission.S. Singh Bajwa,Acting Director, Project Directorate I–1,Division of Reactor Projects—I/II, Office ofNuclear Reactor Regulation.[FR Doc. 97–1610 Filed 1–22–97; 8:45 am]BILLING CODE 7590–01–P

Advisory Committee on ReactorSafeguards; Meeting Notice

In accordance with the purposes ofSections 29 and 182b. of the AtomicEnergy Act (42 U.S.C. 2039, 2232b), theAdvisory Committee on ReactorSafeguards will hold a meeting onFebruary 5–8, 1997, in ConferenceRoom T–2B3, 11545 Rockville Pike,Rockville, Maryland.

Wednesday, February 5, 1997

1:00 p.m.–1:15 p.m.: OpeningRemarks by the ACRS Chairman(Open)—The ACRS Chairman will makeopening remarks regarding conduct ofthe meeting and comment brieflyregarding items of current interest.During this session, the Committee willdiscuss priorities for preparation ofACRS reports.

1:15 p.m.–2:45 p.m.: Design-BasesVerification (Open)—The Committeewill hear presentations by and holddiscussions with representatives of theNRC staff and of the industry regardingthe acceptance criteria to be used by thestaff in judging the adequacy of thedesign-bases information provided bythe licensees in response to the 10 CFR50.54(f) letter issued to all licensees inOctober 1996.

3:00 p.m.–6:30 p.m.: Preparation ofACRS Reports (Open)—The Committeewill discuss proposed ACRS reports onmatters considered during this meeting.It will also discuss a proposed ACRSreport to Congress on the NRC SafetyResearch Program, and a proposedreport on Risk-Based RegulatoryAcceptance Criteria for Site-SpecificApplication of Safety Goals.

Thursday, February 6, 1997

8:30 a.m.–8:35 a.m.: OpeningRemarks by the ACRS Chairman(Open)—The ACRS Chairman will makeopening remarks regarding conduct ofthe meeting.

8:35 a.m.–9:00 a.m.: SubcommitteeReport (Open)—The Committee willhear a report by the Chairman of theThermal Hydraulic PhenomenaSubcommittee regarding mattersdiscussed during the December 18–19,1996 Subcommittee meeting, andcomments on the future scope anddirection of the Subcommittee’s review

of the Westinghouse AP600 Test andAnalysis Program.

9:00 a.m.–9:30 a.m.: SubcommitteeReport (Open)—The Committee willhear a report by the Chairman of theInstrumentation and Control Systemsand Computers Subcommittee regardingthe ACRS review of the NationalAcademy of Sciences/National ResearchCouncil Phase 2 study on digitalinstrumentation and control systems.

9:30 a.m.–10:15 a.m.: Future ACRSActivities (Open)—The Committee willdiscuss the recommendations of thePlanning and Procedures Subcommitteeregarding items proposed forconsideration by the full Committeeduring future meetings.

10:30 a.m.–12:00 Noon: ShutdownOperations Risk (Open)—TheCommittee will hear presentations byand hold discussions withrepresentatives of the NRC staffregarding issues associated withshutdown operations risk.

Representatives of the nuclearindustry will participate, as appropriate.

1:00 p.m.–1:30 p.m.: Reconciliation ofACRS Comments andRecommendations (Open)—TheCommittee will discuss responses fromthe NRC Executive Director forOperations (EDO) to comments andrecommendations included in recentACRS reports, including the December19, 1996 EDO response to ACRScomments included in its November 22,1996 letter regarding NRC programs forthe Risk-Based Analysis of ReactorOperating Experience.

1:30 p.m.–5:30 p.m.: Preparation ofACRS Reports (Open)—The Committeewill continue its discussion of proposedACRS reports on matters consideredduring this meeting. It will alsocontinue to discuss a proposed ACRSreport to Congress on the NRC SafetyResearch Program, as well as proposedreports on Risk-Based RegulatoryAcceptance Criteria for Site-SpecificApplication of Safety Goals, and HumanPerformance Program Plan.

Friday, February 7, 19978:30 a.m.–8:35 a.m.: Opening

Remarks by the ACRS Chairman(Open)—The ACRS Chairman will makeopening remarks regarding conduct ofthe meeting.

8:35 a.m.–10:30 a.m.: Risk-Informed,Performance-Based Regulation andRelated Matters (Open)—TheCommittee will hear presentations byand hold discussions withrepresentatives of the NRC staffregarding the proposed StandardReview Plan Sections and RegulatoryGuides for risk-informed, performance-based regulation, and related matters.


10:45 a.m.–12:15 p.m.: AEOD SpentFuel Pool Study (Open)—TheCommittee will hear presentations byand hold discussions withrepresentatives of the Office forAnalysis and Evaluation of OperationalData (AEOD) regarding the results of thestudy performed by AEOD on theadequacy of spent fuel pool designs.

Representatives of the nuclearindustry will participate, as appropriate.

1:15 p.m.–7:00 p.m.: Preparation ofACRS Reports (Open)—The Committeewill continue its discussion of proposedACRS reports on matters consideredduring this meeting. It will also discussa proposed ACRS report to Congress onthe NRC Safety Research Program, aswell as proposed reports on Risk-BasedRegulatory Acceptance Criteria for Site-Specific Application of Safety Goals,and Human Performance Program Plan.

Saturday, February 8, 19978:30 a.m.–9:00 a.m.: Report of the

Planning and Procedures Subcommittee(Open/Closed)—The Committee willhear a report of the Planning andProcedures Subcommittee on mattersrelated to the conduct of ACRSbusiness, and organizational andpersonnel matters relating to the ACRS.

A portion of this session may beclosed to discuss organizational andpersonnel matters that relate solely tothe internal personnel rules andpractices of this Advisory Committee,and matters the release of which wouldconstitute a clearly unwarrantedinvasion of personal privacy.

9:00 a.m.–1:30 p.m.: Preparation ofACRS Reports (Open)—The Committeewill continue its discussion of proposedACRS reports on matters consideredduring this meeting. It will alsocontinue to discuss a proposed report toCongress on the NRC Safety ResearchProgram, as well as proposed reports onRisk-Based Regulatory AcceptanceCriteria for Site-Specific Application ofSafety Goals, and Human PerformanceProgram Plan.

1:30 p.m.–2:00 p.m.: StrategicPlanning (Open)—The Committee willcontinue its discussion of items of

significant importance to NRC,including rebaselining of the Committeeactivities for FY 1997.

[Note: The meeting could terminate earlierthan scheduled, if the work of the Committeeis completed.]

Procedures for the conduct of andparticipation in ACRS meetings werepublished in the Federal Register onOctober 1, 1996 (61 FR 51310). Inaccordance with these procedures, oralor written statements may be presentedby members of the public; electronicrecordings will be permitted onlyduring the open portions of the meeting,and questions may be asked only bymembers of the Committee, itsconsultants, and staff. Persons desiringto make oral statements should notifyMr. Sam Duraiswamy, Chief, NuclearReactors Branch, at least five daysbefore the meeting, if possible, so thatappropriate arrangements can be madeto allow the necessary time during themeeting for such statements. Use of still,motion picture, and television camerasduring this meeting may be limited toselected portions of the meeting asdetermined by the Chairman.Information regarding the time to be setaside for this purpose may be obtainedby contacting the Chief of the NuclearReactors Branch prior to the meeting. Inview of the possibility that the schedulefor ACRS meetings may be adjusted bythe Chairman as necessary to facilitatethe conduct of the meeting, personsplanning to attend should check withthe Chief of the Nuclear Reactors Branchif such rescheduling would result inmajor inconvenience.

In accordance with Subsection 10(d)P.L. 92–463, I have determined that it isnecessary to close portions of thismeeting noted above to discuss mattersthat relate solely to the internalpersonnel rules and practices of thisAdvisory Committee per 5 U.S.C.552b(c)(2), and to discuss matters therelease of which would constitute aclearly unwarranted invasion ofpersonal privacy per 5 U.S.C. 552b(c)(6).

Further information regarding topicsto be discussed, whether the meeting

has been cancelled or rescheduled, theChairman’s ruling on requests for theopportunity to present oral statementsand the time allotted therefor can beobtained by contacting Mr. SamDuraiswamy, Chief, Nuclear ReactorsBranch (telephone 301/415–7364),between 7:30 a.m. and 4:15 p.m. est.

ACRS meeting notices, meetingtranscripts, and letter reports are nowavailable on FedWorld from the ‘‘NRCMain Menu.’’ Direct Dial Access numberto FedWorld is (800) 303–9672 orftp.fedworld. These documents and themeeting agenda are also available fordownloading or reviewing on theinternet at http://www.nrc.gov/ACRSACNW.

The ACRS meeting dates for CalendarYear 1997 are provided below:

ACRS meeting No. 1997 ACRS meetingdates

439 ............................ March 6–8, 1997.440 ............................ April 3–5, 1997.441 ............................ May 1–3, 1997.442 ............................ June 11–13, 1997.443 ............................ July 9–11, 1997.

No August meeting.444 ............................ September 3–5,

1997.445 ............................ October 2–4, 1997.446 ............................ November 6–8, 1997.447 ............................ December 4–6, 1997.

Dated: January 16, 1997.Andrew L. Bates,Advisory Committee Management Officer.[FR Doc. 97–1605 Filed 1–22– 97; 8:45 am]BILLING CODE 7590–01–P

SECURITIES AND EXCHANGECOMMISSION

Request for Public Comment; UponWritten Request, Copies AvailableFrom: Securities and ExchangeCommission, Office of Filings andInformation Services, Washington, DC20549

Extension:Rule 15g–3 ............................................. SEC File No. 270–346 ............................... OMB Control No. 3235–0392Rule 15g–4 ............................................. SEC File No. 270–347 ............................... OMB Control No. 3235–0393Rule 15g–5 ............................................. SEC File No. 270–348 ............................... OMB Control No. 3235–0394Rule 15g–6 ............................................. SEC File No. 270–349 ............................... OMB Control No. 3235–0395Rule 15g–7(a) ......................................... SEC File No. 270–350 ............................... OMB Control No. 3235–0396Rule 17Ac2–1 and Form TA–1 ............ SEC File No. 270–95 ................................. OMB Control No. 3235–0084

Notice is hereby given that pursuantto the Paperwork Reduction Act of 1995(44 U.S.C. 3501 et seq.), the Securitiesand Exchange Commission

(‘‘Commission’’) is publishing thefollowing summaries of collections forpublic comment.

Rule 15g–3 requires that brokers anddealers disclose to customers currentquotation prices or similar marketinformation in connection with


transactions in certain low-priced, over-the-counter securities. It is estimatedthat approximately 270 respondentsincur an average burden of 100 hoursannually to comply with the rule.

Rules 15g–4 requires brokers anddealers effecting transactions in pennystocks for or with customers to disclosethe amount of compensation received bythe broker-dealer in connection with thetransaction. It is estimated thatapproximately 270 respondents incur anaverage of 100 hours annually to complywith the rule.

Rule 15g–5 requires brokers anddealers to disclose to customers theamount of compensation to be receivedby their sales agents in connection withpenny stock transactions. It is estimatedthat approximately 270 respondentsincur an average burden of 100 hoursannually to comply with the rule.

Rule 15g–6 requires brokers anddealers that sell penny stocks to theircustomers to provide monthly accountstatements containing information withregard to the penny stocks held incustomer accounts. It is estimated thatapproximately 270 respondents incur anaverage burden of 90 hours annually tocomply with the rule.

Rule 15g–7(a) would require brokersand dealers that effect transactions inpenny stocks and are the only marketmakers with respect to such securities todisclose this fact in connection withsuch transactions. It is estimated thatapproximately 270 respondents wouldincur an average burden of 50 hoursannually to comply with the rule.

Rule 17Ac2–1 and Form TA–1 is usedby transfer agents to register with theCommission, the Comptroller of theCurrency, the Board of Governors of theFederal Reserve System, or the FederalDeposit Insurance Corporation, and toamend their registration.

It is estimated that approximately 359respondents will incur an averageburden of 538.5 hours annually tocomply with the rule and form.

Written comments are invited on: (a)Whether the proposed collection ofinformation is necessary for the properperformance of the functions of theagency, including whether theinformation shall have practical utility;(b) the accuracy of the agency’s estimateof the burden of the proposed collectionof information; (c) ways to enhance thequality, utility, and clarity of theinformation to be collected; and (d)ways to minimize the burden of thecollection of information onrespondents, including through the useof automated collection techniques orother forms of information technology.Consideration will be given tocomments and suggestions submitted in

writing within 60 days of thispublication.

Direct your written comments toMichael E. Bartell, Associate ExecutiveDirector, Office of InformationTechnology, Securities and ExchangeCommission, 450 5th Street, N.W.Washington, DC 20549.

Dated: January 14, 1997.Margaret H. McFarland,Deputy Secretary.[FR Doc. 97–1561 Filed 1–22–97; 8:45 am]BILLING CODE 8010–01–M

[Rel. No. IC–22472; File No. 812–10402]

American Odyssey Funds, Inc., et al.

January 15, 1997.AGENCY: The Securities and ExchangeCommission (the ‘‘Commission’’).ACTION: Notice of application for anexemption pursuant to the InvestmentCompany Act of 1940 (the ‘‘1940 Act’’).

Applicant: American Odyssey Funds,Inc. (‘‘AOF’’), American Odyssey FundsManagement, Inc. (‘‘AOFMI’’), andcertain life insurance companies andtheir separate accounts investing now orin the future in AOF.

Relevant 1940 Act Sections: Orderrequested pursuant to Section 6(c) of the1940 Act for exemptions from Sections9(a), 13(a), 15(a), and 15(b) thereof andRules 6e–2(b)(15) and 6e–3(T)(b)(15)thereunder.

Summary of Application: Applicantsseek exemptive relief to the extentnecessary to permit shares of AOF to besold to and held by separate accounts(‘‘Separate Accounts’’) funding variableannuity and variable life insurancecontracts issued by both affiliated andunaffiliated life insurance companies(‘‘Participating Insurance Companies’’)or qualified pension and retirementplans outside the separate accountcontext (‘‘Plans’’).

Filing Date: The application was filedon October 16, 1996.

Hearing and Notification of Hearing:An order granting the application willbe issued unless the Commission ordersa hearing. Interested persons mayrequest a hearing by writing to theSecretary of the Commission andserving Applicants with a copy of therequest, personally or by mail. Hearingrequests must be received by theCommission by 5:30 p.m. or February10, 1997, and must be accompanied byproof of service on Applicants in theform of an affidavit or, for lawyers, acertificate of service. Hearing requestsshould state the nature of the writer’sinterest, the reason for the request, andthe issues contested. Persons may

request notification of a hearing bywriting to the Secretary of theCommission.ADDRESSES: Secretary, Securities andExchange Commission, 450 Fifth Street,N.W., Washington, D.C. 20549.Applicants, c/o Christopher E. Palmer,Esq., Shea & Gardner, 1800Massachusetts Avenue, N.W.,Washington, D.C. 20036.FOR FURTHER INFORMATION CONTACT:Michael Koffler, Staff Attorney, or KevinM. Kirchoff, Branch Chief, Office ofInsurance Products, Division ofInvestment Management, at (202) 942–0670.SUPPLEMENTARY INFORMATION: Thefollowing is a summary of theapplication; the complete application isavailable for a fee from the PublicReference Branch of the Commission.

Applicant’s Representations1. AOF is a Maryland corporation

registered pursuant to the 1940 Act asan open-end, management investmentcompany. AOF currently consists of sixseparate investment portfolios and mayin the future issue shares of additionalportfolios and/or multiple classes ofshares of each portfolios (such existingand future portfolios and/or classes ofshares of each, ‘‘Funds’’).

2. AOFMI, the investment adviser forAOF, is a corporation organizedpursuant to the laws of New Jersey andis registered as an investment adviserpursuant to the Investment Advisers Actof 1940. AOF has entered intoagreements with subadviers who handlethe day-to-day management of eachindividual Fund (the ‘‘Subadvisers’’).

3. Shares of the Funds are currentlysold to separate accounts of TheTravelers Insurance Company, whichare registered as unit investment trustspursuant to the 1940 Act in connectionwith the issuance of variable contracts.

4. AOF may offer shares of its existingand future Funds to Separate Accountsof additional insurance companies,including insurance companies that arenot affiliated with Travelers Group Inc.in order to serve as the investmentvehicle for various types of insuranceproducts, which may include variableannuity contracts, single premiumvariable life insurance contracts,scheduled premium variable lifeinsurance contracts, and flexiblepremium variable life insurancecontracts (‘‘Contracts’’).

5. The Participating InsuranceCompanies will establish their ownSeparate Accounts and design their ownContracts. Each Participating InsuranceCompany will have the legal obligationof satisfying all applicable requirements


under the federal securities laws. Therole of AOF with respect to the SeparateAccounts and the Plans will be limitedto that of offering its shares to theSeparate Accounts and the Plans andfulfilling the conditions provided in theapplication.

6. AOF also offers shares to thetrustees (or custodians) of Plans. Thetrustee or custodian of each Plan willhave the legal obligation of satisfying allrequirements applicable to such Planunder the federal securities laws.

7. AOFMI will not act as aninvestment adviser to any of the Planswhich will purchase shares of AOF. Itis possible that any one of theSubadvisers may act as an investmentadviser to the Plans which may investin AOF. However, Applicants representthat none of the assets of any Planadvisory account managed by aSubadviser will be invested in AOF.The Subadvisers are not permitted toadvise such Plans to invest in AOF.

Applicants’ Legal Analysis1. Section 6(c) authorizes the

Commission to grant exemptions fromthe provisions of the 1940 Act, andmiles thereunder, if and to the extentthat an exemption is necessary orappropriate in the public interest andconsistent with the protection ofinvestors and the purposes fairlyintended by the policy and provisions ofthe 1940 Act.

2. Applicants request that theCommission issue and order pursuant toSection 6(c) of the 1940 Act exemptionthem from Sections 9(a), 15(a), and 15(b)thereof and Rules 6e–2(b)(15) and 63–3T(b)(15) thereunder to the extentnecessary to permit shares of AOF to beoffered and sold to, and held by: (1)Both variable annuity separate accountsand variable life insurance separateaccounts of the same life insurancecompany or of affiliated life insurancecompanies (‘‘mixed funding’’); (2)separate accounts of unaffiliated lifeinsurance separate accounts) ‘‘sharedfunding’’); and (3) trustees of Plans

3. In connection with the funding ofscheduled premium variable lifeinsurance contracts issued through aseparate account registered under the1940 Act as a unit investment trust,Rule 63–2(b)(15) under the 1940 Actprovides partial exemptions fromSection 9(a), 13(a), and 15(b) of the 1940Act. The exemptions granted by Rule63–2(b)(15) and available only where allof the assets of the separate accountconsist of the shares of one or moreregistered management investmentcompanies which offer their shares‘‘exclusively to variable life insuranceseparate accounts of the life insurer, or

of any affiliated life insurancecompany’’ (emphasis added). Therefore,the relief granted by Rule 6e–2(b)(15) isnot available if the scheduled premiumvariable life insurance separate accountowns shares of a managementinvestment company that also offers itsshares to a variable annuity separateaccount of the same insurance companyor an affiliated or unaffiliated lifeinsurance company. Also, the reliefgranted by Rule 6e–2(b)(15) is notavailable if the scheduled premiumvariable life insurance separate accountowns shares of an underlyingmanagement company that also offersits shares to Plans.

4. In addition, the relief granted byRule 6e–2(b)(15) is not available if thescheduled premium variable lifeinsurance separate account owns sharesof an underlying managementinvestment company that also offers itsshares to separate accounts fundingvariable contracts of one or moreunaffiliated life insurance companies.

5. In connection with flexiblepremium variable life insurancecontracts issued through a separateaccount registered under the 1940 Actas a unit investment trust, Rule 6e–3(T)(b)(15) under the 1940 Act providespartial exemptions from Sections 13(a),15(a), and 15(b) of the 1940 Act. Theexemptions granted Rule 6e–3(T)(b)(15)are available only where all of the assetsof the separate account consist of theshares of one or more registeredmanagement investment companieswhich offer their shares ‘‘exclusively toseparate accounts of the life insurer, orof any affiliated life insurance companyoffering either scheduled premiumvariable life insurance contracts offlexible premium variable life insurancecontracts, or both; or which also offertheir share to variable annuity separateaccounts of the life insurer of of anaffiliated life insurance company’’(emphasis added). Thus, Rule 6e–(T)(b)(15) grants an exemption if theunderlying management investmentcompany engages in mixed funding, butnot if it engages in share funding or sellsits shares to Plans.

6. Applicants state that the current taxlaw permits AOF to increase its assetbase through the sale of shares to Plans.Section 817(h) of the Internal RevenueCode (‘‘Code’’) imposes certaindiversification requirements on theunderlying assets of the Contractsinvested in AOF. The Code providesthat such Contracts shall not be treatedas an annuity contract or life insurancecontract for any period in which theunderlying assets are not adequatelydiversified as prescribed by Treasuryregulations. To meet the diversification

requirements, all of the beneficialinterests in the investment companymust be held by the segregated assetaccounts of one or more insurancecompanies. Treas. Reg. § 1.817–5. Theregulations do, however, contain certainexceptions to this requirements, one ofwhich allows shares in an investmentcompany to be held by the trustee of aqualified pension or retirement planwithout adversely affecting the ability ofshares in the same investment companyalso to be held by the separate accountsof insurance companies in connectionwith their Contracts. Tres. Reg. § 1–817–5(f)(3)9iii).

7. The promulgation of Rules 63–2and 63–3(T) preceded the issuance ofthese treasury regulations. Applicantsstate that, given the ten-current tax law,the sale of shares of the sameinvestment company to both SeparateAccounts and Plans could not have beenenvisioned at the time of the adoptionof Rules 6e–3(b)(15) and 6e–3(T)(b)(15).

Disqualification8. Section 9(a)(3) of the 1940 Act

provides that it is unlawful for anycompany to serve as investment adviseror principal underwriter of anyregistered open-end investmentcompany if an affiliated person of thatcompany is subject to a disqualificationenumerated in Section 9(a) (1) or (2).Rule 6e–2(b)(15) (i) and (ii) and Rule6e–3(T)(b)(15) (i) and (ii) provide partialexemptions from Section 9(a), subject tothe limitations discussed above onmixed and shared funding. These rulesprovide: (1) That the eligibilityrestrictions of Section 9(a) shall notapply to persons who are officers,directors or employees of the life insureror its affiliates who do not participatedirectly in the management oradministration of the underlying fund;and (2) that an insurer shall be ineligibleto serve as an investment adviser orprincipal underwriter of the underlyingfund only if an affiliated person of thelife insurer who is disqualified bySection 9(a) participates in themanagement or administration of thefund.

9. Applicants assert that the partialrelief granted in Rules 6e–2(b)(15) and6e–3(T)(b)(15) from the requirements ofSection 9, in effect, limits the amount ofmonitoring necessary to ensurecompliance with Section 9 to that whichis appropriate in light of the policy andpurposes of Section 9, when the lifeinsurer serves as investment adviser toor principal underwriter for theunderlying fund. Applicants assert thatit is not necessary for the protection ofinvestors or the purposes fairly intendedby the policy and provisions of the 1940


Act to apply the provisions of Section9(a) to many individuals in a typicalinsurance company complex, most ofwhom will have no involvement inmatters pertaining to underlyinginvestment companies

10. Applicants submit that there is noregulatory purpose in denying thepartial exemptions because of mixedand share funding and sales to Plans.Applicants submit that sales to thoseentities do not change the fact that thepurposes of the 1940 Act are notadvanced by applying the prohibitionsof Section 9(a) to persons in a lifeinsurance complex who have notinvolvement in the underlying fund.

Pass-Through Voting11. Rules 6e–2(b)(15)(iii) and 6e–

3(T)(b)(15)(iii) assume the existence of apass-through voting requirement withrespect to management investmentcompany shares held by a separateaccount. Applicants state that pass-through voting privileges will beprovided with respect to all Contractowners so long as the Commissioninterprets the 1940 Act to require pass-through voting privileges for Contractowners.

12. Rules 6e–2(b)(15)(iii) and 6e–3(T)(b)(15)(iii) provide partialexemptions from Sections 13(a), 15(a),and (15(b) of the 1940 Act to the extentthat these sections have been deemed bythe Commission to require pass-throughvoting with respect to managementinvestment company shares held by aseparate account, to permit theinsurance company to disregard thevoting instructions of its contractowners in certain circumstances. Rules6e–2(b)(15)(iii)(A) and 6e–3(T)(15)(b)(iii)(A) provide that aninsurance company may disregard thevoting instructions of its contractowners with respect to the investmentsof an underlying investment company,or any contract between an investmentcompany and its investment adviser,when required to do so by an insuranceregulatory authority. Rules 6e–2(b)(15)(iii)(B) and 6e–3(T)(b)(15)(iii)(B)provide that the insurance maydisregard the voting instructions ofcontract owners if the contract ownersinitiate any change is such insurancecompany’s investment objectives,principal underwriter, or investmentadviser provided that disregarding suchvoting instructions is reasonable andcomplies with the other provisions ofRules 6e–2 and 6e–3(T).

13. Rule 6e–2 recognizes that avariable life insurance contract hasimportant elements unique to insurancecontracts, and is subject to extensivestate regulation. Applicants assert that

in adopting Rule 6e–2(b)(15)(iii), theCommission expressly recognized thatstate insurance regulators haveauthority, pursuant to state insurancelaws or regulations, to disapprove orrequire changes in investment policies,investment adviser or principalunderwriters. The Commission alsoexpressly recognized that stateinsurance regulators have authority torequire an insurer to draw from itsgeneral account to cover costs imposedupon the insurer by a change approvedby contract owners over the insurer’sobjection. The Commission, therefore,deemed such exemption necessary ‘‘toassure the solvency of the life insurerand performance of its contractualobligations by enabling an insuranceregulatory authority or the life insurer toact when certain proposals reasonablycould be expected to increase the risksundertaken by the life insurer.’’Applicants state that, in this respect,flexible premium variable life insurancecontracts are identical to scheduledpremium variable life insurancecontracts; therefore, the correspondingprovisions of Rule 6e–3(T) were adoptedin recognition of the same factors.

14. Applicants further represent thatthe offer and sale of AOF shares to Planswill not have any impact on the reliefrequested in this regard. Shares of AOFsold to Plans will be held by thetrustee(s) or custodian(s) of the Plans asrequired by Section 403(a) of theEmployee Retirement Income SecurityAct of 1974 (‘‘ERISA’’) or applicableprovisions of the Code. Section 403(a)also provides that the trustee(s) musthave exclusive authority and discretionto manage and control the Planinvestments with two exceptions: (a)when the Plan expressly provides thatthe trustee(s) is (are) subject to thedirection of a named fiduciary who isnot a trustee, in which case thetrustee(s) is (are) subject to properdirections made in accordance with theterms of the Plan and not contrary toERISA; and (b) when the authority tomanage, acquire or dispose of assets ofthe Plan is delegated to one or moreinvestment managers pursuant toSection 402(c)(3) of ERISA. Unless oneof the two exceptions state in Section403(a) applies, Plan trustees have theexclusive authority and responsibilityfor voting proxies. Where a namedfiduciary appoints an investmentmanager, the investment manager hasthe responsibility to vote the shares heldunless the right to vote such shares isreserved to the trustees or to the namedfiduciary. In any event, ERISA permitsbut does not require pass-through votingto the participants in Plans.

Accordingly, Applicants note that,unlike the case with insurance companyseparate accounts, the issue of theresolution of material irreconcilableconflicts with respect to voting is notpresent with respect to Plans becausethey are not entitled to pass-throughvoting privileges.

15. Some Plans, however may provideparticipants with the right to give votinginstructions. However, Applicants notethat there is no reason to believe thatparticipants in Plans generally, or thosein a particular Plan, either as a singlegroup or in combination with otherPlans, would vote in a manner thatwould disadvantage Contract owners.Therefore, Applicants submit that thepurchase of AOF shares by Plans thatprovide voting rights to participantsdoes not present any complications nototherwise occasioned by mixed andshared funding.

Conflicts of Interest16. Applicants state that no increased

conflicts of interest would be presentedby the granting of the requested relief.Applicants assert that shared funding byunaffiliated insurance companies doesnot present any issues that do notalready exist where a single insurancecompany is licensed to do business inseveral or all states. A particular stateinsurance regulatory body could requireaction that is inconsistent with therequirements of other states in whichthe insurance company offers itspolicies. The fact that different insurersmay be domiciled in different statesdoes not create a significantly differentor greater problem.

17. Applicants submit that sharedfunding by unaffiliated insurers, in thisrespect, is not different than the use ofthe same investment company as thefunding vehicle for affiliated insurers,which Rules 6e–2(b)(15) and 6e–3(T)(b)(15) permit. Affiliated insurersmay be domiciled in different states andbe subject to differing state lawrequirements. Applicants state thataffiliation does not reduce the potential,if any exists, for difference in stateregulatory requirements. In any event,the conditions proposed below (whichare adapted from the conditionsincluded in Rule 6e–3(T)(b)(15)) aredesigned to safeguard against, andprovide procedures for resolving, anyadverse effects that differences amongstate regulatory requirements mayproduce. If a particular state insuranceregulatory decision conflicts with themajority of other state regulators, thenthe affected insurer will be required towithdraw its separate account’sinvestment in AOF. This requirementwill be provided for in agreements that


will be entered into by ParticipatingInsurance Companies with respect totheir participation in AOF.

18. Rules 6e–2(b)(15) and 6e–3(T)(b)(15) give the insurance companythe right to disregard the votinginstructions of the contract owners. Thisright does not raise any issues differentfrom those raised by the authority ofstate insurance administrators overseparate accounts. Affiliation does noteliminate the potential for divergentjudgments as to the advisability orlegality of a change in investmentpolicies, principal underwriter, orinvestment adviser initiated by contractowners. The potential for disagreementis limited by the requirements in Rules6e–2 and 6e–3(T) that the insurancecompany’s disregard of votinginstructions be reasonable and based onspecific good-faith determinations.

19. A particular insurer’s disregard ofvoting instructions, nevertheless, couldconflict with the majority of contractowner voting instructions. If theinsurer’s judgment represents a minorityposition or would preclude a majorityvote, then the insurer may be required,at the election of the relevant Fund, towithdraw its separate account’sinvestment in that Fund and no chargeor penalty will be imposed as a resultof such withdrawal.

20. Applicants submit that investmentby the Plans in any of the Fundssimilarly will not increase the chance ofconflict. Applicants assert that thelikelihood that voting instructions ofinsurance company separate accountholders will be disregarded or thepossible withdrawal referred toimmediately above is extremely remoteand this possibility will be known,through prospectus disclosure, to anyPlan choosing to invest in the Funds.Moreover, Applicants state that even ifa material irreconcilable conflictinvolving Plans arises, the Plans maysimply redeem their shares and makealternative investments.

21. Applicants state that there is noreason why the investment policies ofthe Funds would or should bematerially different from what thesepolicies would or should be if the Fundsfunded only variable annuity contractsor variable life insurance contracts,whether flexible premium or scheduledpremium contracts. Each type ofinsurance product is designed as a long-term investment program. Similarly, theinvestment objectives of Plans, long-term investment, coincides with that ofthe Contracts and should not increasethe potential for conflicts. Applicantsstate that each Fund will be managed toattempt to achieve the investmentobjective of the Fund, and not to favor

or disfavor any particular ParticipatingInsurance Company or type of Contract.

22. Applicants note that no oneinvestment strategy can be identified asappropriate to a particular insuranceproduct or to a Plan. Each pool ofvariable annuity and variable lifeinsurance contract owners is composedof individuals of diverse financialstatus, age, insurance, and investmentgoals. A fund supporting even one typeof insurance product mustaccommodate these diverse factors inorder to attract and retain purchasers.Applicants submit that permittingmixed and shared funding will provideeconomic support for the continuationof AOF. In addition, permitting mixedand shared funding also will facilitatethe establishment of additional Fundsserving diverse goals.

23. As noted above, Section 817(h) ofthe Code imposes certain diversificationstandards on the underlying assets ofvariable annuity contracts and variablelife insurance contracts held in theportfolios of management investmentcompanies. Treasury Regulation 1.817–5(f)(3)(iii), which establisheddiversification requirements for suchportfolios, specifically permits‘‘qualified pension or retirement plans’’and insurance company separateaccounts to share the same underlyinginvestment company. Applicants assertthat, therefore, neither the Code, nor theTreasury Regulations, nor the revenuerulings thereunder recognize anyinherent conflicts of interests if Plans,variable annuity separate accounts, andvariable life insurance separate accountsall invest in the same managementinvestment company.

24. While there may be differences inthe manner in which distributions aretaxed for variable annuity contracts,variable life insurance contracts andPlans, Applicants state that the taxconsequences do not raise any conflictsof interest. When distributions are to bemade, and the Separate Account or thePlan cannot net purchase payments tomake the distributions, the SeparateAccount or the Plan will redeem shareof AOF at their net asset value. The Planwill then make distributions inaccordance with the terms of the Planand the Participating InsuranceCompany will make distributions inaccordance with the terms of theContract.

25. Applicants state that it is possibleto provide an equitable means of givingvoting rights to Contract owners and toPlans. Applicants represent that TheFunds will inform each shareholder,including each Separate Account andeach Plan, of its respective share ofownership in the respective Fund. Each

Participating Insurance Company willthen solicit voting instructions inaccordance with the ‘‘pass-through’’voting requirement.

26. Applicants submit that the abilityof the Funds to sell their respectiveshare directly to Plans does not createa ‘‘senior security,’’ as that term isdefined under Section 18(g) of the 1940Act, with respect to any Contract owneras opposed to a participant under aPlan. As noted above, regardless of therights and benefits of participants underthe Plans, or Contract owners underContracts, the Plans and the SeparateAccounts have rights only with respectto their respective share of AOF. Theycan redeem such shares only at their netasset value. No shareholder of any of theFunds has any preference over any othershareholder with respect to distributionof assets or payment of dividends.

27. Applicants assert that there are noconflicts between the Contract ownersof the Separate Accounts and theparticipants under the Plans withrespect to the state insurancecommissioner’s veto powers overinvestment objectives. The basicpremise of shareholder voting is that notall shareholders may agree with aparticular proposal. The state insurancecommissioners have been given the vetopower in recognition of the fact thatinsurance companies cannot simplyredeem their Separate Accounts out ofone fund and invest in another. Time-consuming, complex transactions mustbe undertaken to accomplish suchredemptions and transfers. On the otherhand, trustees of Plans can make thedecision quickly and implement theredemption of their shares from a Fundand reinvest in another funding vehiclewithout the same regulatoryimpediments or, as is the case with mostPlans, even hold cash pending suitableinvestment. Based on the foregoing,Applicants maintain that even if thereshould arise issues where the interestsof Contract owners and the interests ofPlans are in conflict, the issues can bealmost immediately resolved becausethe trustees of the Plans can, on theirown, redeem shares out of the Fund.

28. Applicants submit that mixed andshared funding should provide benefitsto Contract owners by eliminating asignificant portion of the costs ofestablishing and administering separatefunds. Participating InsuranceCompanies will benefit not only fromthe investment and administrativeexpertise of AOFMI and theSubadvisers, but also from the costefficiencies and investment flexibilityafforded by a larger pool of assets.Mixed and shared funding also wouldpermit a greater amount of assets


available for investment by AOF,thereby promoting economies of scale,by permitting increased safety throughgreater diversification or by making theaddition of new Funds more feasible.Therefore, making AOF available formixed and shared funding willencourage more insurance companies tooffer variable contracts, and this shouldresult in increased competition withrespect to both variable contract designand pricing, which can be expected toresult in more product variation andlower charges.

29. Applicants assert that there is nosignificant legal impediment topermitting mixed and shared funding.Separate accounts organized as unitinvestment trusts historically have beenemployed to accumulate shares ofmutual funds which have not beenaffiliated with the depositor or sponsorof the separate account. Applicants donot believe that mixed and sharedfunding, and sales to qualified Plans,will have any adverse federal incometax consequences.

Applicants’ ConditionsApplicants have consented to the

following conditions:1. A majority of the Board of Directors

(‘‘Board’’) of the Funds shall consist ofpersons who are not ‘‘interestedpersons’’ thereof, as defined by Section2(a)(19) of the 1940 Act, and the rulesthereunder, and as modified by anyapplicable orders of the Commission,except that if this condition is not metby reason of the death, disqualification,or bona fide resignation of any directoror directors, then the operation of thiscondition shall be suspended for: (a) Aperiod of 45 days if the vacancy orvacancies may be filled by theremaining directors on the Board; (b) aperiod of 60 days if a vote ofshareholders is required to fill thevacancy or vacancies; or (c) such longerperiod as the Commission may prescribeby order upon application.

2. Each Board will monitor itsrespective Fund for the existence of anymaterial irreconcilable conflict betweenthe interests of the Contract owners ofall the Separate Accounts investing inthe Funds and the Plan participantsinvesting in the Funds. A materialirreconcilable conflict may arise for avariety of reasons, including: (a) Anaction by any state insurance regulatoryauthority; (b) a change in applicablefederal or state insurance, tax, orsecurities laws or regulations, or apublic ruling, private letter ruling, no-action or interpretative letter, or anysimilar action by insurance, tax, orsecurities regulatory authorities; (c) anadministrative or judicial decision in

any relevant proceeding; (d) the mannerin which the investments of any Fundare being managed; (e) a difference invoting instructions given by variableannuity Contract owners, variable lifeinsurance Contract owners and trusteesof Plans; (f) a decision by a ParticipatingInsurance Company to disregard thevoting instructions of Contract owners;or (g) if applicable, a decision by a Planto disregard the voting instructions ofPlan participants.

3. Participating Insurance Companies,AOFMI (or any other investment adviserof the Funds), and any Plan thatexecutes a fund participation agreementupon becoming an owner of 10 percentor more of the assets of a Fund(collectively, the ‘‘Participants’’) willreport any potential or existing conflictsto the relevant Board. Participants willbe responsible for assisting the Board incarrying out its responsibilities underthese conditions by providing the Boardwith all information reasonablynecessary for the Board to consider anyissues raised. This responsibilityincludes, but is not limited to, anobligation by each ParticipatingInsurance Company to inform the Boardwhenever voting instructions ofContract owners are disregarded and, ifpass-through voting is applicable, anobligation by each Plan to inform theBoard whenever it has determined todisregard Plan participant votinginstructions. The responsibility to reportsuch information and conflicts and toassist the Board will be contractualobligations of all Participating InsuranceCompanies investing in the Fundsunder their agreements governingparticipation therein, and suchagreements shall provide that theseresponsibilities will be carried out witha view only to the interests of theContract owners. The responsibility toreport such information and conflictsand to assist the Board will becontractual obligations of all Plans withparticipation agreements, and suchagreements shall provide that theseresponsibilities will be carried out witha view only to the interests of the Planparticipants.

4. If it is determined by a majority ofthe Board of a Fund, or by a majority ofthe disinterested directors of suchBoard, that a material irreconcilableconflict exists, the relevant ParticipatingInsurance Companies and Plans will, attheir own expense and to the extentreasonably practicable (as determinedby a majority of the disinteresteddirectors), take whatever steps arenecessary to remedy or eliminate thematerial irreconcilable conflict, whichsteps could include: (a) Withdrawingthe assets allocable to some or all of the

Separate Accounts from AOF or anyFund and reinvesting such assets in adifferent investment medium, whichmay include another Fund; (b)submitting the question as to whethersuch segregation should beimplemented to a vote of all affectedContract owners and, as appropriate,segregating the assets of any appropriategroup (i.e., variable annuity Contractowners or variable life insuranceContract owners of one or moreParticipating Insurance Companies) thatvotes in favor of such segregation, oroffering to the affected Contract ownersthe option of making such a change; and(c) establishing a new registeredmanagement investment company ormanaged separate account. If a materialirreconcilable conflict arises because adecision by a Participating InsuranceCompany to disregard contract ownervoting instructions and that decisionrepresents a minority position or wouldpreclude a majority vote, then thatParticipating Insurance Company maybe required, at the election of therelevant Fund, to withdraw its separateaccount’s investment therein, and nocharge or penalty will be imposed as aresult of such withdrawal. If a materialirreconcilable conflict arises because ofa Plan’s decision to disregard Planparticipant voting instructions, ifapplicable, and that decision representsa minority position or would precludea majority vote, the Plan may berequired, at the election of the relevantFund, to withdraw its investment insuch Fund, and no charge or penaltywill be imposed as a result of suchwithdrawal. The responsibility to takeremedial action in the event of a Boarddetermination that a materialirreconcilable conflict exists and to bearthe cost of such remedial action will bea contractual obligation of allParticipating Insurance Companies andPlans under their agreements governingtheir participation in the Funds, andthese responsibilities will be carried outwith a view only to the interests ofContract owners and Plan participants.For purposes of this Condition 4, amajority of the disinterested directors ofthe applicable Board will determinewhether or not any proposed actionadequately remedies any materialirreconcilable conflict, but in no eventwill the relevant Fund or AOFMI berequired to establish a new fundingmedium for any Contract. NoParticipating Insurance Company shallbe required by this Condition 4 toestablish a new funding medium for anyContract if any offer to do so has beendeclined by a vote of a majority of theContract owners materially and


adversely affected by the materialirreconcilable conflict. Further, no Planshall be required by this Condition 4 toestablish a new funding medium forsuch Plan if: (a) A majority of Planparticipants materially and adverselyaffected by the irreconcilable materialconflict vote to decline such offer, or (b)pursuant to governing Plan documentsand applicable law, the Plan makes suchdecision without Plan participant vote.

5. The determination by any Board ofthe existence of a material irreconcilableconflict and its implications will bemade known in writing promptly to allParticipants.

6. Participating Insurance Companieswill provide pass-through votingprivileges to all Contract owners so longas the Commission continues tointerpret the 1940 Act as requiring pass-through voting privileges for Contractowners. Accordingly, ParticipatingInsurance Companies will vote shares ofa Fund held in their separate accountsin a manner consistent with votinginstructions timely received fromcontract owners. Each ParticipatingInsurance Company will also voteshares for which it has not receivedtimely voting instructions from contractowners as well as shares which theParticipating Insurance Company itselfowns, in the same proportion as thoseshares for which voting instructionsfrom contract owners are timely-received. Participating InsuranceCompanies will be responsible forassuring that each of their separateaccounts participating in the Fundscalculates voting privileges in a mannerconsistent with other ParticipatingInsurance Companies. The obligation tocalculate voting privileges in a mannerconsistent with all other separateaccounts investing in the Funds will bea contractual obligation of allParticipating Insurance Companiesunder their agreements governing theirparticipation in the Funds. Each Planwill vote as required by applicable lawand governing Plan documents.

7. All reports of potential or existingconflicts received by a Board, and allBoard action with regard to determiningthe existence of a conflict of interest,notifying Participants of a conflict, anddetermining whether any proposedaction adequately remedies a conflict,will be properly recorded in the minutesof the meetings of the appropriate Boardor other appropriate records, and suchminutes or other records shall be madeavailable to the Commission uponrequest.

8. Each Fund will notify allParticipating Insurance Companies thatseparate account prospectus disclosureregarding potential risks of mixed and

shared funding may be appropriate.Each Fund will disclose in itsprospectus that: (a) AOF is intended tobe a funding vehicle for variable annuityand variable life insurance contractsoffered by various insurance companiesand for qualified pension and retirementplans; (b) due to differences of taxtreatment and other considerations, theinterests of various Contract ownersparticipating in AOF and the interests ofPlans investing in AOF may conflict;and (c) the Board will monitor events inorder to identify the existence of anymaterial irreconcilable conflicts ofinterest and to determine what action, ifany, should be taken in response to anysuch conflict.

9. Each Fund will comply with allprovisions of the 1940 Act requiringvoting by shareholders (which, for thesepurposes, will be the persons having avoting interest in the shares of the Fund)and, in particular, each Fund will eitherprovide for annual shareholder meetings(except insofar as the Commission mayinterpret Section 16 of the 1940 Act notto require such meetings) or complywith Section 16(c) of the 1940 Act(although the Funds are not one of thetrusts described in the Section 16(c) ofthe 1940 Act), as well as with Section16(a) of the 1940 Act and, if and whenapplicable, Section 16(b) of the 1940Act. Further, each Fund will act inaccordance with the Commission’sinterpretation of the requirements ofSection 16(a) with respect to periodicelections of directors and with whateverrules the Commission may promulgatewith respect thereto.

10. If and to the extent that Rule 6e–2 or Rule 6e–3(T) under the 1940 Actare amended, or Rule 6e–3 under the1940 Act is adopted, to provideexemptive relief from any provision ofthe 1940 Act or the rules promulgatedthereunder, with respect to mixed orshared funding, on terms and conditionsmaterially different from anyexemptions granted in the orderrequested by the applicationsummarized in this notice, then theFunds and/or Participating InsuranceCompanies, as appropriate, shall takesuch steps as may be necessary tocomply with Rules 6e–2 and 6e–3(T), asamended, or Rule 6e–3, as adopted, tothe extent that such rules are applicable.

11. The Participants, at least annually,will submit to the Boards such reports,materials, or data as the Boards mayreasonably request so that the Boardsmay fully carry out the obligationsimposed upon them by the conditionscontained in this Application. Suchreports, materials, and data will besubmitted more frequently if deemedappropriate by the applicable Boards.

The obligations of the Participants toprovide these reports, materials, anddata upon the reasonable request of theBoards, shall be a contractual obligationof all Participants under theiragreements governing their participationin the Funds.

12. If a Plan should ever become aholder of ten percent or more of theassets of a Fund, such Plan will executea participation agreement with theapplicable Fund. A Plan will execute anapplication containing anacknowledgment of this condition uponsuch Plan’s initial purchase of theshares of any Fund.

ConclusionFor the reasons summarized above,

Applicants assert that the requestedexemptions are appropriate in thepublic interest and consistent with theprotection of investors and the purposesfairly intended by the policy andprovisions of the 1940 Act.

For the Commission, by the Division ofInvestment Management, pursuant todelegated authority.Margaret H. McFarland,Deputy Secretary.[FR Doc. 97–1558 Filed 1–22–97; 8:45 am]BILLING CODE 8010–01–M


Notice is hereby given, pursuant tothe provisions of the Government in theSunshine Act, Pub. L. 94–409, that theSecurities and Exchange Commissionwill hold the following meeting duringthe week of January 27, 1997.

A closed meeting will be held onTuesday, January 28, 1997, at 10:00 a.m.

Commissioners, Counsel to theCommissioners, the Secretary to theCommission, and recording secretarieswill attend the closed meeting. Certainstaff members who have an interest inthe matters may also be present.

The General Counsel of theCommission, or his designee, hascertified that, in his opinion, one ormore of the exemptions set forth in 5U.S.C. 552b(c) (4), (8), (9)(A) and (10)and 17 CFR 200.402(a) (4), (8), (9)(i) and(10), permit consideration of thescheduled matters at the closed meeting.

Commissioner Wallman, as dutyofficer, voted to consider the itemslisted for the closed meeting in a closedsession.

The subject matter of the closedmeeting scheduled for Tuesday, January28, 1997, at 10:00 a.m., will be:

Injunction of injunctive actions.Institution and settlement of

administrative proceedings of anenforcement nature.


1 15 U.S.C. 78s(b)(1) (1988).2 17 CFR 240.19b–4 (1996).3 See Securities Exchange Act Release No. 38022

(December 5, 1996), 61 FR 65422.4 The CBOE supplemented its proposals with a

letter explaining that the proposed rule change isdesigned to encourage customer demand in interestrate options and to allow the CBOE to competeeffectively with markets for other interest ratederivatives, which fill orders to a depth of 100contracts. See Letter from Debora E. Barnes, SeniorAttorney, CBOE, to Yvonne Fraticelli, Attorney,Options and Derivatives Regulation, Division ofMarket Regulation (‘‘Division’’), Commission, datedDecember 13, 1996 (‘‘December 13 Letter’’).

5 Currently, the CBOE offers four interest rateoptions, including the following: IRX (3-monthTreasury Bill); FVX (5-year Treasury Note); TNX(10-year Treasury Note); and TYX (30-year TreasuryBond).

6 See December 13 Letter, supra note 4.

7 15 U.S.C. 78f and 78k–1 (1988).8 In approving the rule, the Commission has

considered the proposed rule’s impact onefficiency, competition, and capital formation. 15U.S.C. 78c(f).

9 The CBOE expects that, initially, the increasedRAES order size eligibility will be utilized only forTYX options. Telephone conversation betweenDebora E. Barnes, Senior Attorney, CBOE, andYvonne Fraticelli, Attorney, Office of MarketSupervision, Division, Commission, on January 13,1997.

10 See e.g., Securities Exchange Act Release Nos.36601 (December 18, 1995), 60 FR 66817 (December26, 1995) (order approving File No. SR–PHLX–95–39) (increasing the maximum automatic executionorder size eligibility for public customer orders forall equity and index options to 50 contracts); 33476(January 13, 1994), 59 FR 3140 (January 20, 1994)(order approving File No. SR–Amex–93–33)(increasing the size of Japan Index option orderseligible for automatic execution to 99 contracts);30290 (January 27, 1992), 57 FR 4072 (February 3,1992) (order approving File No. SR–Amex–91–27)

Continued

At times, changes in Commissionpriorities alterations in the schedulingof meeting items. For furtherinformation and to ascertain what, ifany, matters have been added, deletedor postponed, please contact:

The Office of the Secretary at (202)942–7070.

Dated: January 21, 1997.Jonathan G. Katz,Secretary.[FR Doc. 97–1819 Filed 1–21–97; 8:45 am]BILLING CODE 8010–01–M

[Release No. 34–38169; File No. SR–CBOE–96–72]

Self-Regulatory Organizations; OrderApproving Proposed Rule Change bythe Chicago Board Options Exchange,Inc., Relating to RAES Order Size forInterest Rate Options

January 14, 1997.

On November 26, 1996, the ChicagoBoard Options Exchange, Inc. (‘‘CBOE’’or ‘‘Exchange’’) submitted to theSecurities and Exchange Commission(‘‘SEC’’ or ‘‘Commission’’), pursuant tosection 19(b)(1) of the SecuritiesExchange Act of 1934 (‘‘Act’’),1 andRule 19b–4 thereunder,2 a proposed rulechange to amend Exchange Rule 23.7,‘‘RAES,’’ to increase the maximum sizeof interest rate option orders eligible forentry into the CBOE’s Retail AutomatedExecution System (‘‘RAES’’) from 10 orfewer contracts to 100 or fewercontracts.

The proposed rule change waspublished for comment in the FederalRegister on December 12, 1996.3 Nocomments were received on theproposal.4

The CBOE proposed to amend CBOERule 23.7(ii) to increase the maximumsize of orders in CBOE interest rateoptions which are eligible for executionthrough RAES from 10 or fewercontracts to 100 or fewer contracts. Theproposed increase in the maximum sizeof RAES-eligible interest rate option

orders will apply to all classes ofinterest rate options.5

The proposed rule change is designedto allow the Exchange to competeeffectively with other markets that tradeinterest rate derivatives.6 According tothe CBOE, much of the trading ininterest rate derivatives currently occursin markets where transaction sizes arelarger than are eligible for automaticexecution through RAES at the CBOE.

Specifically, the CBOE notes thatbecause the TYX interest rate contractoffered to the CBOE representsapproximately one-tenth (1/10th) of thevalue of the underlying governmentsecurities, the current eligible orderlimit of ten contracts is essentiallyequivalent in value to only one U.S.Treasury Bond option. The Exchangebelieves that the proposed increase inthe maximum size of orders for CBOEinterest rate options, such as the TYX,that are eligible for execution throughRAES (essentially a ‘‘10-lot’’ in theTreasury Bonds themselves), willprovide a more meaningful limit forinstitutional customers.

The CBOE believes that the proposedrule change will not impose anysignificant burdens on the operation andcapacity of RAES, but instead willincrease the efficiency of the Exchange’soperations by expanding the number oforders that are eligible for automaticexecution and by reducing manualprocessing. Finally, the CBOE believesthat the rule change will not have anegative impact on the capacity,security or integrity of RAES.

By expanding the maximum size oforders in CBOE interest rate optionswhich are eligible for execution throughRAES from 10 or fewer contracts to 100or fewer contracts, the Exchangebelieves that the proposed rule changewill better serve the needs of the CBOE’spublic customers and the Exchangemembers who make a market for suchcustomers. The CBOE believes that theproposed rule change is consistent withsection 6(b) of the Act, in general, andfurthers the objectives of section 6(b)(5),in particular, in that it is designed topromote just and equitable principles oftrade, to remove impediments to andperfect the mechanism of a free andopen market and a national marketsystem, and to protect investors and thepublic interest.

The Commission finds that theproposed rule change is consistent withthe requirements of the Act and the

rules and regulations thereunderapplicable to a national securitiesexchange, and, in particular, therequirements of Section 6 and Section11A.7 Specifically, the Commissionfinds that the CBOE’s proposal willfacilitate transaction in securities andprotect investors and the publicinterest.8 The Commission believes thatproviding for the automatic execution oflarger customer orders in interest rateoptions will provide for more efficienthandling and reporting of orders ininterest rate options, thereby improvingorder processing and turnaround time.9In addition, the Commission believesthat public customers may benefit fromthe proposal because their interest rateoption orders for up to 100 contractsmay be executed automatically at thedisplayed market quote. Publiccustomers also will have the benefit ofreceiving nearly instantaneousexecutions and confirmations forinterest rate option orders of up to 100contracts.

The CBOE has stated that the proposalwill allow the Exchange to competemore effectively with other markets thattrade interest rate derivatives.Accordingly, the Commission believesthat the proposal may help the CBOE toattract order flow, thereby increasing thedepth and liquidity of the CBOE’smarket for interest rate options, to thebenefit of all market participants. Inaddition, the proposal may benefitinvestors by providing them withadditional financial products withwhich to implement their tradingstrategies.

The Commission notes that it hasapproved proposals by other optionsexchanges allowing comparableincreases in the number of optioncontracts eligible for automaticexecution.10


(providing for automatic execution of publiccustomer orders of up to 100 MidCap 400 Indexoption contracts); 25950 (July 28, 1988), 53 FR29293 (August 3, 1988) (order approving File No.SR–Amex–87–20) (increasing the number ofInstitutional Index options eligible for automaticexecution to 100 contracts).

11 See Securities Exchange Act Release No. 34876(October 21, 1994), 59 FR 54226 (October 28, 1994)(order approving File No. SR–CBOE–94–17).

12 15 U.S.C. 78s(b)(2).13 17 CFR 200.30–3(a)(12).

1 15 U.S.C. 78s (b)(1).2 17 CFR 240.19b–4.3 On November 1, 1996, the Commission

extended the pilot period of the NASD Short SaleRule, Rule 3350, through October 1, 1997.Securities Exchange Act Release No. 37917(November 1, 1996) 61 FR 57934 (November 8,1996).

4 The Nasdaq Board has unanimously approvedthe filing of the proposed rule change regarding thesuspension of Primary Market Maker standards. SeeLetter to Holly Smith, Associate Director, Divisionof Market Regulation, SEC, from Eugene A. Lopez,the Nasdaq Stock Market, Inc., dated January 9,1997.

5 See Letter to Holly Smith, Associate Director,Division of Market Regulation, SEC, from Robert E.Aber, The Nasdaq Stock Market, Inc., dated January14, 1997.

6 See Securities Exchange Act Release No.37619A (September 6, 1996), 61 FR 48290(September 12, 1996) adopting Rule 11Ac1–4(‘‘Limit Order Display Rule’’) and amendments toRule 11Ac1–1 (‘‘Quote Rule’’) (collectively the‘‘Order Execution Rules’’). See also SecuritiesExchange Act Release Nos. 38110 (January 2, 1997),62 FR 1279 (January 9, 1997) (revising the effectivedate of the Order Execution Rules to January 13,1997); and 38139 (January 8, 1997) (revising theeffective date of the Order Execution Rules untilJanuary 20, 1997).

7 Rule 11Ac1–1(c)(5) requires a market maker todisplay in its quote any better priced order themarket maker places into an electroniccommunications network (‘‘ECN Amendment’’).Alternatively, the ECN Amendment provides anexception to the market maker’s display obligationthat depends upon the ECN itself displaying itsbest-priced orders, entered therein by a marketmaker or specialist, and allowing brokers anddealers to access such orders (‘‘ECN DisplayAmendment’’).

In addition, the Commission hasapproved a CBOE proposal to increaseto 100 the firm quote contract sizeminimum applicable to DesignatedPrimary Market Makers in classes ofinterest rate options for which PublicAutomated Routing System (‘‘PAR’’)workstations are available.11 TheCommission believes that the CBOE’scurrent proposal is consistent with theExchange’s earlier proposal to increasethe firm quote contract size for classesof interest rate options for which PARworkstations are available.

Finally, based on representations fromthe CBOE, the Commission believes thatincreasing the size of the interest rateoption orders eligible for executionthrough RAES will not expose theCBOE’s options markets to risk of failureor operational breakdown. In particular,the CBOE represents that the proposalwill not impose significant burdens onthe operation and capacity of RAES, norwill it have a negative impact on thesecurity or integrity of RAES.

It is therefore ordered, pursuant toSection 19(b)(2) of the Act,12 that theproposed rule change (SR–CBOE–96–72) is approved.

For the Commission, by the Division ofMarket Regulation, pursuant to delegatedauthority.13

Margaret H. McFarland,Deputy Secretary.[FR Doc. 97–1560 Filed 1–22–97; 8:45 am]BILLING CODE 8010–01–M

[Release No. 34–38175; File No. SR–NASD–96–55]

Self-Regulatory Organizations;National Association of SecuritiesDealers, Inc.; Order GrantingAccelerated Approval and Notice ofFiling and Order Granting AcceleratedApproval of Amendment No. 1 ofProposed Rule Change Relating toPrimary Market Maker Standards

January 15, 1997.

I. Introduction

On December 23, 1996, the NationalAssociation of Securities Dealers, Inc.(‘‘NASD’’ or ‘‘Association’’) filed withthe Securities and Exchange

Commission (‘‘Commission’’ or ‘‘SEC’’)pursuant to Section 19(b)(1) of theSecurities Exchange Act of 1934(‘‘Act’’),1 and Rule 19b–4 thereunder 2 aproposed rule change to waive theNasdaq Primary Market Makerstandards for the remainder of thecurrent pilot period of the Nasdaq ShortSale Rule.3 The proposed rule changewas published for comment inSecurities Exchange Act Release No.38091 (December 27, 1996), 62 FR 778(January 6, 1997) (‘‘Notice of ProposedRule Change’’).4 On January 10, 1997,the NASD submitted Amendment No. 1to waive the Nasdaq Primary MarketMaker standards on a phase-inschedule.5 This order approves theproposed rule change, includingAmendment No. 1, on an acceleratedbasis.

II. Description of the ProposalThe NASD has proposed to suspend

the use of the Primary Nasdaq MarketMaker (‘‘PMM’’) qualification criteriafound in Rule 4612 (a) and (b) of theNasdaq market maker Requirements ofthe NASD Rules. Under existing Rule4612, a registered Nasdaq market makermay be deemed to be a PMM in aNational Market Security if the marketmaker meets two of three criteria: (1)The market maker maintains the bestbid or best offer as shown on Nasdaq noless than 35% of the time; (2) a marketmaker maintains a spread no greaterthan 102% of the average dealer spread;and (3) no more than 50% of a marketmaker’s quotation changes occurwithout a trade execution. In addition,if a registered market maker meets onlyone of the above criteria, it maynevertheless qualify as a PMM if themarket maker accounts for volume atleast 11⁄2 times its proportionate share ofoverall volume in the stock. The reviewperiod for meeting any of these criteriais one calendar month. The PMMqualification criteria is reviewed byNasdaq to determine which Nasdaqmarket makers will receive the PMM

designation. The PMM designationallows a Nasdaq market maker to availitself of the short sale exemption underNASD Rule 3350(c)(1). The NASD hasproposed, on a phase-in basis, tosuspend the PMM qualification criteriafor Nasdaq National Market (‘‘NNM’’)securities and, accordingly, deem allregistered market makers in suchsecurities a PMM.

III. DiscussionIn August 1996, the Commission

adopted a new rule and amendments toan existing rule that are scheduled to gointo effect on January 20, 1997.6 Uponcommencement of the Order ExecutionRules, over-the-counter (‘‘OTC’’) marketmakers will be representing certaincustomer limit orders in their quotationsand frequently executing customer limitorders in a manner very different fromtoday. Moreover, under an amendmentto the Quote Rule, electroniccommunications networks (‘‘ECNs’’)will be entering quotations andexecutions in the Nasdaq Stock Marketin a manner which heretofore wasreserved for registered market makers.7The Commission has acknowledged thatthe Order Execution Rules represent amajor change in the way OTC marketmakers display and execute orders inthe Nasdaq Stock Market.

While the Order Execution Rules areanticipated to contribute to morevigorous quotation competition, theadditional quotations will alter the dataused in determining the PMMdesignation. A quote reflecting acustomer limit order will beindistinguishable from a proprietaryquote of a market maker. Inclusion ofcustomer limit orders in a marketmaker’s quote can narrow the marketmaker’s spread, as well as the numberof quotation changes the market makereffects. The display of ECN prices intothe Nasdaq montage, which also will


8 See NASD Rule 3350.9 See Securities Exchange Act Release Nos.

37619A (September 6, 1996), 61 FR 48290(September 12, 1996), 38110 (January 2, 1997); 62FR 1279 (January 9, 1997); and 38139 (January 8,1997) (outlining the phase-in dates for the LimitOrder Display Rule and the ECN Amendment).

10 See Letter from S. William Broka, Senior VicePresident, Trading & Market Service, The NasdaqStock Market, Inc., dated December 23, 1996.

11 15 U.S.C. 78s(b)(2) (1988).12 17 CFR 300.30–3(a)(12) (1996).

include customer limit orders, willfurther influence the data that Nasdaqcalculates in determining a marketmaker’s status as a PMM.

As a result, the quote conditions onwhich the PMM standards are basedwill change significantly and will nolonger reliably reflect the quality of themarket provided by the market maker,making the current PMM standardsunpredictable for market makers.Without such PMM designation, aNasdaq market maker is not permittedto effect a short sale in a NNM Securityat or below the current best bid whenthe current best bid displayed byNasdaq is below the preceding best bidin the security.8

The inability of a market maker topredict and obtain the PMMdesignation, and therefore sell short aspart of its bona fide market makingactivity, may cause the withdrawal ofsome market makers thereby reducingliquidity and continuity in the market.Moreover, the Commission believes thata market maker could be deterred fromaccepting customer limit orders by therisk of losing its PMM designation,which consequently could impede theeffectiveness of the Limit Order DisplayRule. The Commission further believesthat the continued use of the PMMqualification criteria, when the dataused is not an accurate assessment ofthe maket marker’s own independentquotation, would be inequitable andcause an unintended burden oncompetition. The Commissionconcludes that the suspension of thecurrent NASD PMM qualificationcriteria on a temporary basis isconsistent with the Act, and for thesmooth implementation of the OrderExecution Rules.

The Order Execution Rules containphase-in periods to ensure an orderlytransition and to permit marketparticipants an opportunity to obtainexperience over a manageable set ofsecurities.9 Consequently, thesuspension of PMM qualificationcriteria will also operate on a phase-inschedule that parallels the phase-inperiod of the ECN Amendment. On thefirst business day of the monthfollowing each phase-in period of theECN amendment, the PMM qualificationcriteria will be suspended and allregistered Nasdaq market makers insuch securities will be designated aPMM. For example, on February 3, 1997

all Nasdaq registered market makers inthe first fifty securities being phased-inunder the ECN Amendment, effectiveJanuary 20, 1997, will be a designatedPMM.10 The Commission expects theNASD to develop new standards as soonas practicable after the Order ExecutionRules become effective. As a result, theCommission is approving the rulechange on a pilot basis through July 1,1997.

IV. Solicitation of Comments onAmendment No. 1

Interested persons are invited tosubmit written data, views andarguments concerning Amendment No.1 to the proposed rule change. Personsmaking written submissions should filesix copies thereof with the Secretary,Securities and Exchange Commission,450 Fifth Street, NW., Washington, DC20549. Copies of the submissions, allsubsequent amendments, all writtenstatements with respect to AmendmentNo. 1 that are filed with theCommission, and all writtencommunications relating to AmendmentNo. 1 between the Commission and anypersons, other than those that may bewithheld from the public in accordancewith provisions of 5 U.S.C. 552, will beavailable for inspection and copying inthe Commission’s Public ReferenceRoom. Copies of such filing will also beavailable for inspection and copying atthe principal office of the NASD. Allsubmissions should refer to File No.SR–NASD–96–55 and should besubmitted [insert date 21 days from dateof publication].

V. ConclusionFor the foregoing reasons, the

Commission finds that the proposedrule change is consistent with the Actand the rules and regulationsthereunder applicable to the NASD, andin particular Sections 15A(b)(6),15A(b)(9), and 15A(b)(11). In addition,the Commission finds that the rulechange is consistent with theCongressional objectives for the equitymarkets, set out in Section 11A, ofachieving more efficient and effectivemarket operations, fair competitionamong brokers and dealers, and theeconomically efficient execution ofinvestor orders in the best market. TheCommission further believes thatmaintaining the existing PMMqualification criteria beyond January 20,1997 will likely frustrate the operationof the Order Execution Rules.Accordingly, the Commission finds

good cause for approving the proposedrule change and Amendment No. 1 tosuspend the PMM qualification criteriaprior to the thirtieth day after date ofpublication of notice of filing thereof inthe Federal Register.

It is therefore ordered, pursuant toSection 19(b)(2) of the Act,11 that theproposed rule change (NASD–96–55) beand hereby is approved, with the firstphase-in effective February 1, 1997,until July 1, 1997.

For the Commission, by the Division ofMarket Regulation, pursuant to delegatedauthority.12

Margaret H. McFarland,Deputy Secretary.[FR Doc. 97–1559 Filed 1–22–97; 8:45 am]BILLING CODE 8010–01–M

TENNESSEE VALLEY AUTHORITY

Paperwork Reduction Act of 1996, asAmended by Public Law 104–13;Proposed Collection; CommentRequest

AGENCY: Tennessee Valley Authority.ACTION: Proposed collection; commentrequest.

SUMMARY: The proposed informationcollection described below will besubmitted to the Office of Managementand Budget (OMB) for review, asrequired by the Paperwork ReductionAct of 1995 (44 U.S.C. Chapter 35, asamended). The Tennessee ValleyAuthority is soliciting public commentson this proposed collection as providedby 5 CFR 1320.8(d)(1). Requests forinformation, including copies of theinformation collection proposed andsupporting documentation, should bedirected to the Acting Agency ClearanceOfficer: Wilma H. McCauley, TennesseeValley Authority, 1101 Market Street(WR 4Q), Chattanooga, Tennessee37402–2801; (423) 751–2523.

Comments should be sent to theActing Agency Clearance Officer nolater than March 24, 1997.

SUPPLEMENTARY INFORMATION:Type of Request: Regular submission,

proposal to extend a currently approvedcollection of information (OMB controlnumber 3316–0100).

Title of Information Collection:Comparison of Factors InfluencingMinority and Non-minorityRepresentation in State and FederalNatural Resource Professions.

Frequency of Use: On occasion.Type of Affected Public: Individuals

or households, state or local


1 RBMN and EMHR are wholly owned by AndrewM. Muller, Jr. RBMN owns and operatesapproximately 235 miles of rail line in theCommonwealth of Pennsylvania. EMHR owns andoperates approximately 10 miles of rail line in theCommonwealth of Pennsylvania. The lines ofRBMN and EMHR connect through overheadtrackage rights over lines owned by ConsolidatedRail Corporation.

governments, Federal agencies oremployees.

Small Businesses or OrganizationsAffected: No.

Federal Budget Functional CategoryCode: 452.

Estimated Number of AnnualResponses: 2,000.

Estimated Total Annual BurdenHours: 500.

Estimated Average Burden Hours PerResponse: .25.

Need For and Use of Information:TVA is cooperating with 22 otherFederal and state agencies to investigateselected factors which may influenceminority and non-minorityrepresentation in state and Federalagency natural resource professions. Asurvey of natural resource professions inthe Southeastern United States will beconducted to determine (1) the diversityin the workforce and jobresponsibilities, (2) factors that promoteor preclude job satisfaction, (3)educational backgrounds attained andneeded by inservice professions, and (4)conceptual framework for careerselection by and retention of minoritiesin natural resource professions. Resultsof the study may provide strategies forstate and Federal agencies to refineminority recruitment and retentionprograms, personnel planning, andcareer counseling.William S. Moore,Senior Manager, Administrative Services.[FR Doc. 97–1585 Filed 1–22–97; 8:45 am]BILLING CODE 8120–08–P


Office of the Secretary

Reports, Forms and RecordkeepingRequirements; Agency InformationCollection Activity Under OMB Review

AGENCY: Department of Transportation(DOT).ACTION: Notice.

SUMMARY: In compliance with thePaperwork Reduction Act (44 U.S.C.3501 et seq.), this notice announces thatthe Information Collection Request (ICR)abstracted below has been forwarded tothe Office of Management and Budget(OMB) for review and comment. TheICR describes the nature of theinformation collection and its burden.The Federal Register Notice with a 60-day comment period solicitingcomments on the following collection ofinformation was published on October22, 1996 [FR 61, page 54833].DATES: Comments must be submitted onor before February 24, 1997.

FOR FURTHER INFORMATION CONTACT: Ms.Judith Street, Federal AviationAdministration, Corporate InformationDivision, ABC–100, 800 IndependenceAve., SW., (202) 267–9895, Washington,DC 20591.


Federal Aviation Administration (FAA)

Title: Suspected Unapproved PartNotification.

Type of Request: Extension of acurrently approved collection.

OMB Control Number: 2120–0552.Form Number: FAA Form 8120–11.Affected Public: Manufacturers, repair

station operators, owner/operators.Abstract: The information collected

on the FAA Form 8120–11 will bereported by manufacturers, repairstation operators, owner/operators, orthe general public who wish to reportsuspected unapproved parts to the FAA.The notification information iscollected, correlated, and used todetermine if an unapproved partinvestigation is in fact warranted.

Estimated Annual Burden: The totalannual burden is 60 hours.ADDRESSES: Send comments to theOffice of Information and RegulatoryAffairs, Office of Management andBudget, 725–17th Street, NW.,Washington, DC 20503, Attention FAADesk Officer.

Comments are invited on: Whetherthe proposed collection of informationis necessary for the proper performanceof the functions of the Department,including whether the information willhave practical utility; the accuracy ofthe Department’s estimate of the burdenof the proposed information collection;ways to enhance the quality, utility andclarity of the information to becollected; and ways to minimize theburden of the collection of informationon respondents, including the use ofautomated collection techniques orother forms of information technology.

Issued in Washington, DC, on January 16,1997.Phillip A. Leach,Clearance Officer, United States Departmentof Transportation.[FR Doc. 97–1581 Filed 1–22–97; 8:45 am]BILLING CODE 4910–62–P

Federal Railroad Administration

Maglev Study Advisory Committee;Notice of Second Meeting

AGENCY: Federal RailroadAdministration (FRA), Department ofTransportation (DOT).

ACTION: Notice of second meeting of theMaglev Study Advisory Committee.

SUMMARY: As required by Section10(a)(2) of the Federal AdvisoryCommittee Act (Pub. L. 92–463), and 41CFR 101–6.1015(b), the Federal RailroadAdministration (FRA) gives notice of thesecond meeting of the Maglev StudyAdvisory Committee (‘‘MSAC’’). Thepurpose of the meeting is to adviseDOT/FRA on the Congressionallymandated study of the near-termapplications of maglev technology in theUnited States.DATES: The second meeting of theMSAC is scheduled for 8:30 a.m. EST onThursday, February 6, 1997.Adjournment is expected prior to 5:00pm. Decisions with respect to futuremeetings will be made at this meeting,and from time to time thereafter. Noticeof future meetings will be published inthe Federal Register.ADDRESSES: The second meeting of theMSAC will be held in the 7th floorConference Room at FRA Headquarters,1120 Vermont Avenue NW,Washington, D.C. The meeting is opento the public on a first-come, first-servedbasis and is accessible to individualswith disabilities. Those with specialneeds should inform Mr. Mongini 5days in advance of the meeting so thatappropriate facilities can be provided.FOR FURTHER INFORMATION CONTACT:Arrigo Mongini, Deputy AssociateAdministrator for RailroadDevelopment, FRA RDV–2, 400 7thStreet, S.W., Washington, D.C. 20590,(202)–632–3286.Jolene M. Molitoris,Administrator.[FR Doc. 97–1555 Filed 1–22–97; 8:45 am]BILLING CODE 4910–06–P

Surface Transportation Board

[STB Finance Docket No. 33335]

Reading Blue Mountain and NorthernRailroad Company; Corporate FamilyTransaction Exemption; East Mahanoy& Hazleton Railroad Company

Reading Blue Mountain and NorthernRailroad Company (RBMN) and EastMahanoy & Hazleton Railroad Company(EMHR),1 Class III railroads, have jointlyfiled a verified notice of exemption. The


exempt transaction is a merger of EMHRinto RBMN.

The earliest the transaction could beconsummated was January 9, 1997, theeffective date of the exemption (7 daysafter the exemption was filed).

EMHR is currently not handling anytraffic. If traffic becomes available andoperations are resumed on the EMHRlines, RBMN represents that it will beable to handle such operations. Themerger will reduce administrativeexpenses associated with managing twocorporate entities.

This is a transaction within acorporate family of the type specificallyexempted from prior review andapproval under 49 CFR 1180.2(d)(3).The parties state that the transactionwill not result in adverse changes inservice levels, significant operationalchanges, or a change in the competitivebalance with carriers outside thecorporate family.

Under 49 U.S.C. 10502(g), the Boardmay not use its exemption authority torelieve a rail carrier of its statutoryobligation to protect the interests of itsemployees. Section 11326(c), however,does not provide for labor protection fortransactions under sections 11324 and11325 that involve only Class III railcarriers. Because this transactioninvolves Class III rail carriers only, theBoard, under the statute, may notimpose labor protective conditions forthis transaction.

If the verified notice contains false ormisleading information, the exemptionis void ab initio. Petitions to reopen theproceeding to revoke the exemptionunder 49 U.S.C. 10502(d) may be filedat any time. The filing of a petition toreopen will not automatically stay thetransaction.

An original and 10 copies of allpleadings, referring to STB FinanceDocket No. 33335, must be filed withthe Surface Transportation Board, Officeof the Secretary, Case Control Branch,1201 Constitution Avenue, N.W.,Washington, DC 20423. In addition, acopy of each pleading must be served onEric M. Hocky, Esq., Gollatz, Griffin &Ewing, P.C., 213 West Miner Street, P.O.Box 796, West Chester, PA 19381–0796.

Decided: January 15, 1997.By the Board, David M. Konschnik,

Director, Office of Proceedings.Vernon A. Williams,Secretary.[FR Doc. 97–1612 Filed 1–22–97; 8:45 am]BILLING CODE 4915–00–P



January 14, 1997.The Department of Treasury has

submitted the following publicinformation collection requirement(s) toOMB for review and clearance under thePaperwork Reduction Act of 1995,Public Law 104–13. Copies of thesubmission(s) may be obtained bycalling the Treasury Bureau ClearanceOfficer listed. Comments regarding thisinformation collection should beaddressed to the OMB reviewer listedand to the Treasury DepartmentClearance Officer, Department of theTreasury, Room 2110, 1425 New YorkAvenue, NW., Washington, DC 20220.

Departmental Office/Office of DataManagement

OMB Number: 1505–0018.Form Number: Treasury International

Capital Form BL–2/BL–2(SA).Type of Review: Extension.Title: Custody Liabilities of Reporting

Bank, Brokers and Dealers to Foreigners,Payable in Dollars.

Description: Form BL–2/BL–2(SA) isrequired by law (22 USC 95a, 22 USC286f and 3103). It is designed to collecttimely and reliable information oninternational capital movements,including data on the custody liabilitiesof banks, dollar claims of U.S. banks,other depository institutions, brokersand dealers, vis-a-vis foreigners, payablein dollars.

Respondents: Business or other for-profit.

Estimated Number of Respondents:150.

Estimated Burden Hours PerRespondent: 5 hours each.

Frequency of Response: Monthly.Estimated Total Reporting Burden:

9,000 hours.OMB Number: 1505–0020.Form Number: Treasury International

Capital Form BQ–2.Type of Review: Extension.Title: Treasury International Capital

Form BQ–2, Part 1—Liabilities to, andClaims.

Description: Form BQ–2 is requiredby law (22 USC 95a, 22 USC 286f and3103). It is designed to collect timelyand reliable information on U.S.international capital movements,including data on liabilities and claims,payable in foreign currencies, of banks,other depository institutions, brokersand dealers, and their domesticcustomers vis-a-vis foreigners.



Estimated Burden Hours PerRespondent: 4 hours.

Frequency of Response: Quarterly.Estimated Total Reporting Burden:

4,640 hours.Clearance Officer: Lois K. Holland (202)

622–1563, Departmental Offices,Room 2110, 1425 New York Avenue,NW, Washington, DC 20220.

OMB Reviewer: Alexander T. Hunt (202)395–7860, Office of Management andBudget, Room 10202, New ExecutiveOffice Building, Washington, DC20503.

Lois K. Holland,Departmental Reports Management Officer.[FR Doc. 97–1566 Filed 1–22–97; 8:45 am]BILLING CODE 4810–25–P




Departmental Office/Office of ForeignAssets Control

OMB Number: 1505–0151.Form Number: None.Type of Review: Extension.Title: UNITA (Angola) Sanctions

Regulations.Description: The UNITA (Angola)

Sanctions Regulations implement thePresident’s declaration of a nationalemergency, E.O. 12865, September 26,1993, and imposition of sanctionsagainst the National Union for the TotalIndependence of Angola.

Respondents: Individuals orhouseholds, Business or other for-profit.

Estimated Number of Respondents/Recordkeepers: 5.

Estimated Burden Hours PerRespondent/Recordkeeper: 2 hours.

Frequency of Response: On occasion.Estimated Total Reporting/

Recordkeeping Burden: 10 hours.Clearance Officer: Lois K. Holland

(202) 622–1563, Departmental Offices,Room 2110, 1425 New York Avenue,N.W., Washington, DC 20220.


OMB Reviewer: Alexander T. Hunt(202) 395–7860, Office of Managementand Budget, Room 10202, NewExecutive Office Building, Washington,DC 20503.Lois K. Holland,Departmental Reports Management Officer.[FR Doc. 97–1567 Filed 1–22–97; 8:45 am]BILLING CODE 4810–25–P




Bureau of Alcohol, Tobacco andFirearms (BATF)

OMB Number: 1512–0206.Form Number: ATF F 5110.41.Type of Review: Extension.Title: Miscellaneous Requests and

Notices for Distilled Spirits plants.Description: The information

provided by applicants assists ATF indetermining eligibility and providing forregistration. These eligibilityrequirements are for persons who wishto establish distilled spirits plantoperations. However, both statutes andregulations allow variances fromregulations, and this information givesdata to permit a variance.


Estimated Number of Respondents:70,000.

Estimated Burden Hours PerRespondent: 6 minutes.

Frequency of Response: On occasion.Estimated Total Reporting Burden:

7,000 hours.OMB Number: 1512–0523.Form Number: ATF F 5300.27.Type of Review: Extension.Title: Certification of Compliance wit

State and Local Law.Description: Applicants for a Federal

firearms license will submit acertification that they are in compliancewith State and local laws and that theyhave provided notification of his intentto conduct a firearms business to the

chief law enforcement officer in thelocality of the business premises.




Frequency of Response: On occasion.Estimated Total Reporting Burden:

7,000 hours.OMB Number: 1512–0524.Form Number: ATF F 5300.27.Type of Review: Extension.Title: Federal Firearms Licensee

Theft/Loss Report.Description: Thefts or losses of

firearms from the inventory orcollection of a Federal firearms licenseemust be reported to the Secretary ofTreasury and the appropriate localauthorities within 48 hours ofdiscovery. This form contains theminimum information necessary forATF to initiate criminal investigations.




Frequency of Response: On occasion.Estimated Total Recordkeeping

Burden: 1,600 hours.Clearance Officer: Robert N. Hogarth

(202) 927–8930, Bureau of Alcohol,Tobacco and Firearms, Room 3200, 650Massachusetts Avenue, N.W.,Washington, DC 20226.


Submission to OMB for Review;Comment Request



Internal Revenue Service (IRS)

OMB Number: New.Form Number: None.Type of Review: New collection.Title: Announcement 96– Tip

Reporting Alternative Commitment(Hairstyling Industry).

Description: Information is requiredby the Internal Revenue Service in itsCompliance efforts to assist employersand their employees in understandingand complying with section 6053(a),which requires employees to report alltheir tips monthly to their employers.


Estimated Number of Respondents/Recordkeepers: 3,200.



Recordkeeping Burden: 47,733 hours.OMB Number: New.Form Number: None.Type of Review: New collection.Title: Announcement 96– Tip Rate

Determination Agreement (GamingIndustry).

Description: Information is requiredby the Internal Revenue Service in itsCompliance efforts to assist employersand their employees in understandingand complying with section 6053(a),which requires employees to report alltheir tips monthly to their employers.





Recordkeeping Burden: 4,342 hours.Clearance Officer: Garrick Shear (202)

622–3869, Internal Revenue Service,Room 5571, 1111 Constitution Avenue,NW, Washington, DC 20224.




submitted the following publicinformation collection requirement(s) toOMB for review and clearance under the


Paperwork Reduction Act of 1995,Public Law 104–13. Copies of thesubmission(s) may be obtained bycalling the Treasury Bureau ClearanceOfficer listed. Comments regarding thisinformation collection should beaddressed to the OMB reviewer listedand to the Treasury DepartmentClearance Officer, Department of theTreasury, Room 2110, 1425 New YorkAvenue, NW., Washington, DC 20220.

Internal Revenue Service (IRS)

OMB Number: 1545–0736.Regulation Project Number: LR–274–

81 Final.Type of Review: Extension.Title: Accounting for Long-Term

Contracts.Description: These recordkeeping

requirements are necessary to determinewhether the taxpayer properly allocatesindirect contract costs to extendedperiod long-term contracts under theregulations. The recordkeepingrequirement is effective for taxable yearsbeginning after 1982. The informationwill be used to verify the taxpayer’sallocations of some indirect costs.


Estimated Number of Recordkeepers:1,000.

Estimated Burden Hours PerRecordkeeper: 10 hours, 1 minute.

Frequency of Response: Annually.Estimated Total Recordkeeping

Burden: 10,010 hours.OMB Number: 1545–1049.Regulation Project Number: IA–7–88

Final, T.D. 8379.Type of Review: Extension.Title: Excise Tax Relating to Gain or

Other Income Realized by Any Personon Receipt of Greenmail.

Description: The final regulationsprovide rules relating to the manner andmethod of reporting and paying thenondeductible 50 percent excise taximposed by section 5881 of the InternalRevenue Code with respect to thereceipt of greenmail.



Estimated Burden Hours PerRespondent/Recordkeeper: 30 minutes.


Recordkeeping Burden: 2 hours.Clearance Officer: Garrick Shear (202)

622–3869, Internal Revenue Service,Room 5571, 1111 Constitution Avenue,NW, Washington, DC 20224.

OMB Reviewer: Alexander T. Hunt(202) 395–7860, Office of Managementand Budget, Room 10226, New

Executive Office Building, Washington,DC 20503.Lois K. Holland,Departmental Reports Management Officer.[FR Doc. 97–1570 Filed 1–22–97; 8:45 am]BILLING CODE 4830–01–P




Internal Revenue Service (IRS)OMB Number: 1545–0430.Form Number: IRS Form 4810.Type of Review: Extension.Title: Request for Prompt Assessment

Under Internal Revenue Code Section6501(d).

Description: Form 4810 is used torequest a prompt assessment underInternal Revenue Code (IRC) 6501(d).IRS uses this form to locate the returnto expedite processing of the taxpayer’srequest.

Respondents: Business or other for-profit, Individuals or households,Farms, Federal Government.



Frequency of Response: On occasion,Other (as necessary).

Estimated Total RecordkeepingBurden: 2,000 hours.

OMB Number: 1545–1120.Regulation Project Number: CO–18–

90 Final.Type of Review: Extension.Title: Final Regulations Under Section

382 of the Internal Revenue Code of1986; Limitations on Corporate NetOperating Loss Carryforwards.

Description: The final regulationsprovide rules for the treatment ofoptions under Internal Revenue Code(IRC) section 382 for purposes ofdetermining whether a corporationundergoes an ownership change. Theregulation allows for certain electionsfor corporations whose stock is subjectto options.


Estimated Number of Respondents/Recordkeepers: 75,150.

Estimated Burden Hours PerRespondent/Recordkeeper: 2 hours, 56minutes.

Frequency of Response: Annually.Estimated Total Reporting/


622–3869, Internal Revenue Service,Room 5571, 1111 ConstitutionAvenue, NW, Washington, DC 20224.






Internal Revenue Service (IRS)OMB Number: 1545–1221.Regulation Project Number: EE–147–

87 Final.Type of Review: Extension.Title: Qualified Separate Lines of

Business.Description: The affected public

includes employers who maintainqualified employee retirement plans.Where applicable, the employer mustfurnish notice to the IRS that theemployer treats itself as operatingqualified separate lines of business andsome may request an IRS determinationthat such lines satisfy administrativescrutiny.



Estimated Burden Hours PerRespondent/Recordkeeper: 3 hours, 55minutes.


Frequency of Response: Annually.Estimated Total Reporting/


622–3869, Internal Revenue Service,Room 5571, 1111 ConstitutionAvenue, NW, Washington, DC 20224.



Bureau of Alcohol, Tobacco andFirearms


ACTION: Notice and request forcomments.

SUMMARY: The Department of theTreasury, as part of its continuing effortto reduce paperwork and respondentburden, invites the general public andother Federal agencies to take thisopportunity to comment on proposedand/or continuing informationcollections, as required by thePaperwork Reduction Act of 1995,Public Law 104–13 (44 U.S.C.3506(c)(2)(A)). Currently, the Bureau ofAlcohol, Tobacco and Firearms withinthe Department of the Treasury issoliciting comments concerning theAnnual Firearms Manufacturing andExportation Report.DATES: Written comments should bereceived on or before March 24, 1977 tobe assured of consideration.ADDRESSES: Direct all written commentsto Bureau of Alcohol, Tobacco andFirearms, Linda Barnes, 650Massachusetts Avenue, NW.,Washington, DC 20226, (202) 927–8930.FOR FURTHER INFORMATION CONTACT:Requests for additional information orcopies of the form(s) and instructionsshould be directed to Julie Cox,Firearms and Explosives OperationsBranch, 650 Massachusetts Avenue,NW., Washington, DC 20226, (202) 927–8310.


Title: Annual Firearms Manufacturingand Exportation Report.

OMB Number: 1512–0030.Form Number: ATF F 4483–A

(5300.11).Abstract: ATF collects this data for

the purposes of law enforcement, fitnessqualification, congressional inquiries,

disclosure to the public in compliancewith a court order, furnishinginformation to other Federal agencies,compliance inspections, and insuringthat the requirements of the NationalFirearms Act (26 U.S.C. 5801–5872) aremet.

Current Actions: There are no changesto this information collection and it isbeing submitted for extension purposesonly.

Type of Review: Extension.Affected Public: Business or other for-

profit.Estimated Number of Respondents:

1,016.Estimated Time Per Respondent: 45

minutes.Estimated Total Annual Burden

Hours: 762.

Request for CommentsComments submitted in response to

this notice will be summarized and/orincluded in the request for OMBapproval. All comments will become amatter of public record. Comments areinvited on: (a) Whether the collection ofinformation is necessary for the properperformance of the functions of theagency, including whether theinformation shall have practical utility;(b) the accuracy of the agency’s estimateof the burden of the collection ofinformation; (c) ways to enhance thequality, utility, and clarity of theinformation to be collected; (d) ways tominimize the burden of the collection ofinformation on respondents, includingthrough the use of automated collectiontechniques or other forms of informationtechnology; and (e) estimates of capitalor start-up costs and costs of operation,maintenance, and purchase of servicesto provide information.

Dated: January 8, 1997.John W. Magaw,Director.[FR Doc. 97–1539 Filed 1–22–97; 8:45 am]BILLING CODE 4810–31–P



SUMMARY: The Department of theTreasury, as part of its continuing effortto reduce paperwork and respondentburden, invites the general public andother Federal agencies to take thisopportunity to comment on proposedand/or continuing informationcollections, as required by thePaperwork Reduction Act of 1995,Public Law 104–13 (44 U.S.C.3506(c)(2)(A)). Currently, the Bureau of

Alcohol, Tobacco and Firearms withinthe Department of the Treasury issoliciting comments concerning theLicensed Firearms Dealers Records ofAcquisition, Disposition, andSupporting Data.DATES: Written comments should bereceived on or before March 24, 1997 tobe assured of consideration.ADDRESSES: Direct all written commentsto Bureau of Alcohol, Tobacco andFirearms, Linda Barnes, 650Massachusetts Avenue, NW.,Washington, DC 20226, (202) 927–8930.FOR FURTHER INFORMATION CONTACT:Requests for additional information orcopies of the form(s) and instructionsshould be directed to Julie Cox,Firearms and Explosives OperationsBranch, 650 Massachusetts Avenue,NW., Washington, DC 20226, (202) 927–8310.


Title: Licensed Firearms DealersRecords of Acquisition, Disposition, andSupporting Data.

OMB Number: 1512–0490.Form Number: ATF F 4473 LV Parts

I & II (5300.24, 5300.25).Recordkeeping Requirement ID

Number: ATF REC 7570/2.Abstract: This form is used by low

volume firearms dealers to recordacquisition and disposition of firearmsand to determine the eligibility oftransferees to receive firearms. Itbecomes part of a licensee’s permanentrecord and may be used to tracefirearms. The record retentionrequirement for this informationcollection is 3 years.


Type of Review: Extension.Affected Public: Individuals or

households, business or other for-profit.Estimated Number of Respondents:

92,750.Estimated Time Per Respondent: 6

minutes per form and 5 minutes for thedealer to keep each record.

Estimated Total Annual BurdenHours: 171,588.

Request for Comments

Comments submitted in response tothis notice will be summarized and/orincluded in the request for OMBapproval. All comments will become amatter of public record. Comments areinvited on: (a) Whether the collection ofinformation is necessary for the properperformance of the functions of theagency, including whether theinformation shall have practical utility;


(b) the accuracy of the agency’s estimateof the burden of the collection ofinformation; (c) ways to enhance thequality, utility, and clarity of theinformation to be collected; (d) ways tominimize the burden of the collection ofinformation on respondents, includingthrough the use of automated collectiontechniques or other forms of informationtechnology; and (e) estimates of capitalor start-up costs and costs of operation,maintenance, and purchase of servicesto provide information.




SUMMARY: The Department of theTreasury, as part of its continuing effortto reduce paperwork and respondentburden, invites the general public andother Federal agencies to take thisopportunity to comment on proposedand/or continuing informationcollections, as required by thePaperwork Reduction Act of 1995,Public Law 104–13 (44 U.S.C.3506(c)(2)(A)). Currently, the Bureau ofAlcohol, Tobacco and Firearms withinthe Department of the Treasury issoliciting comments concerning theBonded Wineries—Formula and Processfor Wine, Letterhead Applications andNotices Relating to Formula Wine.DATES: Written comments should bereceived on or before March 24, 1997 tobe assured of consideration.ADDRESSES: Direct all written commentsto Bureau of Alcohol, Tobacco andFirearms, Linda Barnes, 650Massachusetts Avenue, NW.,Washington, DC 20226, (202) 927–8930.FOR FURTHER INFORMATION CONTACT:Requests for additional information orcopies of the form(s) and instructionsshould be directed to Roberta Sanders,Product Compliance Branch, 650Massachusetts Avenue, NW.,Washington, DC 20226, (202) 927–8116.


Title: Bonded Wineries—Formula andProcess for Wine, LetterheadApplications and Notices Relating toFormula Wine.

OMB Number: 1512–0059.Form Number: ATF F 5120.29.Abstract: ATF F 5120.29 is used to

determine the classification of wines for

labeling and consumer protection. Theform describes the person filing, type ofproduct to be made and restrictions forthe labeling and manufacturing. Theform is also used to audit a product.


Type of Review: Extension.Affected Public: Business or other-


600.Estimated Time Per Respondent: 2

hours.Estimated Total Annual Burden

Hours: 1,200.REQUEST FOR COMMENTS: Commentssubmitted in response to this notice willbe summarized and/or included in therequest for OMB approval. Allcomments will become a matter ofpublic record. Comments are invited on:(a) Whether the collection ofinformation is necessary for the properperformance of the functions of theagency, including whether theinformation shall have practical utility;(b) the accuracy of the agency’s estimateof the burden of the collection ofinformation; (c) ways to enhance thequality, utility, and clarity of theinformation to be collected; (d) ways tominimize the burden of the collection ofinformation on respondents, includingthrough the use of automated collectiontechniques or other forms of informationtechnology; and (e) estimates of capitalor start-up costs and costs of operation,maintenance, and purchase of servicesto provide information.




SUMMARY: The Department of theTreasury, as part of its continuing effortto reduce paperwork and respondentburden, invites the general public andother Federal agencies to take thisopportunity to comment on proposedand/or continuing informationcollections, as required by thePaperwork Reduction Act of 1995,Public Law 104–13 (44 U.S.C.3506(c)(2)(A)). Currently, the Bureau ofAlcohol, Tobacco and Firearms withinthe Department of the Treasury issoliciting comments concerning the

Notices Relating To Payment ofFirearms and Ammunition Excise Tax.DATES: Written comments should bereceived on or before March 24, 1997 tobe assured of consideration.ADDRESSES: Direct all written commentsto Bureau of Alcohol, Tobacco andFirearms, Linda Barnes, 650Massachusetts Avenue, NW.,Washington, DC 20226, (202) 927–8930.FOR FURTHER INFORMATION CONTACT:Requests for additional information orcopies of the form(s) and instructionsshould be directed to Marjorie Ruhf,Wine, Beer and Spirits RegulationsBranch, 650 Massachusetts Avenue,NW., Washington, DC 20226, (202) 927–8230.


Title: Notices Relating to Payment ofFirearms and Ammunition Excise Tax.

OMB Number: 1512–0512.Abstract: Excise taxes are collected on

the sale or use of firearms andammunition by firearms or ammunitionmanufacturers, importers or producers.Taxpayers who elect to pay excise taxesby electronic fund transfer must furnisha written notice upon election anddiscontinuance. The tax revenue will beprotected. The record retentionrequirement for this informationcollection is 3 years.






Hours: 1 hour.REQUEST FOR COMMENTS: Commentssubmitted in response to this notice willbe summarized and/or included in therequest for OMB approval. Allcomments will become a matter ofpublic record. Comments are invited on:(a) Whether the collection ofinformation is necessary for the properperformance of the functions of theagency, including whether theinformation shall have practical utility;(b) the accuracy of the agency’s estimateof the burden of the collection ofinformation; (c) ways to enhance thequality, utility, and clarity of theinformation to be collected; (d) ways tominimize the burden of the collection ofinformation on respondents, includingthrough the use of automated collectiontechniques or other forms of informationtechnology; and (e) estimates of capital


or start-up costs and costs of operation,maintenance, and purchase of servicesto provide information.




SUMMARY: The Department of theTreasury, as part of its continuing effortto reduce paperwork and respondentburden, invites the general public andother Federal agencies to take thisopportunity to comment on proposedand/or continuing informationcollections, as required by thePaperwork Reduction Act of 1995,Public Law 104–13 (44 U.S.C.3506(c)(2)(A)). Currently, the Bureau ofAlcohol, Tobacco and Firearms withinthe Department of the Treasury issoliciting comments concerning theDistilled Spirits Records and MonthlyReport of Production Operations.DATES: Written comments should bereceived on or before March 24, 1997 tobe assured of consideration.ADDRESSES: Direct all written commentsto Bureau of Alcohol, Tobacco andFirearms, Linda Barnes, 650Massachusetts Avenue, NW.,Washington, DC 20226, (202) 927–8930.FOR FURTHER INFORMATION CONTACT:Requests for additional information orcopies of the form(s) and instructionsshould be directed to Marsha D. Baker,Wine, Beer and Spirits RegulationsBranch, 650 Massachusetts Avenue,NW., Washington, DC 20226, (202) 927–6993.

SUPPLEMENTARY INFORMATION:Title: Distilled Spirits Records and

Monthly Report of ProductionOperations.

OMB Number: 1512–0205.Form Number: ATF F 5110.40.Recordkeeping Requirement ID

Number: ATF REC 5110.40.Abstract: The information collected is

used to account for the proprietor’s taxliability, adequacy of the bond coverageand protection of the revenue. Theinformation also provides data toanalyze trends in the industry, and planefficient allocation of field resources,audit plant operations and compilationof statistics for government economicanalysis. The record retentionrequirement for this informationcollection is 4 years.






Hours: 3,600.


Comments submitted in response tothis notice will be summarized and/orincluded in the request for OMBapproval. All comments will become amatter of public record. Comments areinvited on: (a) Whether the collection ofinformation is necessary for the properperformance of the functions of theagency, including whether theinformation shall have practical utility;(b) the accuracy of the agency’s estimateof the burden of the collection ofinformation; (c) ways to enhance thequality, utility, and clarity of theinformation to be collected; (d) ways tominimize the burden of the collection ofinformation on respondents, includingthrough the use of automated collectiontechniques or other forms of informationtechnology; and (e) estimates of capitalor start-up costs and costs of operation,maintenance, and purchase of servicesto provide information.




SUMMARY: The Department of theTreasury, as part of its continuing effortto reduce paperwork and respondentburden, invites the general public andother Federal agencies to take thisopportunity to comment on proposedand/or continuing informationcollections, as required by thePaperwork Reduction Act of 1995,Public Law 104–13 (44 U.S.C.3506(c)(2)(A)). Currently, the Bureau ofAlcohol, Tobacco and Firearms withinthe Department of the Treasury issoliciting comments concerning theDistilled Spirits Plants WarehousingRecords and Reports.

DATES: Written comments should bereceived on or before March 24, 1997 tobe assured of consideration.ADDRESSES: Direct all written commentsto Bureau of Alcohol, Tobacco andFirearms, Linda Barnes, 650Massachusetts Avenue, NW.,Washington, DC 20226, (202) 927–8930.FOR FURTHER INFORMATION CONTACT:Requests for additional information orcopies of the form(s) and instructionsshould be directed to Barry Fields,Wine, Beer and Spirits RegulationsBranch, 650 Massachusetts Avenue,NW., Washington, DC 20226, (202) 927–8522.


Title: Distilled Spirits PlantsWarehousing Records and Reports.

OMB Number: 1512–0192.Form Number: ATF F 5110.11.Recordkeeping Requirement ID

Number: ATF REC 5110/02.Abstract: The information collected is

used to account for proprietor’s taxability, adequacy of bond coverage andprotection of the revenue. It alsoprovides data to analyze trends, auditplant operations, monitor industryactivities and compliance to provide forefficient allocation of field personnelplus provide for economic analysis. Therecord retention requirement for thisinformation collection is three years.






Hours: 5,520.


Comments submitted in response tothis notice will be summarized and/orincluded in the request for OMBapproval. All comments will become amatter of public record. Comments areinvited on: (a) Whether the collection ofinformation is necessary for the properperformance of the functions of theagency, including whether theinformation shall have practical utility;(b) the accuracy of the agency’s estimateof the burden of the collection ofinformation; (c) ways to enhance thequality, utility, and clarity of theinformation to be collected; (d) ways tominimize the burden of the collection ofinformation on respondents, includingthrough the use of automated collection


techniques or other forms of informationtechnology; and (e) estimates of capitalor start-up costs and costs of operation,maintenance, and purchase of servicesto provide information.




SUMMARY: The Department of theTreasury, as part of its continuing effortto reduce paperwork and respondentburden, invites the general public andother Federal agencies to take thisopportunity to comment on proposedand/or continuing informationcollections, as required by thePaperwork Reduction Act of 1995,Public Law 104–13 (44 U.S.C.3506(c)(2)(A)). Currently, the Bureau ofAlcohol, Tobacco and Firearms withinthe Department of the Treasury issoliciting comments concerning theDrawback on Wines Exported.DATES: Written comments should bereceived on or before March 24, 1997 tobe assured of consideration.ADDRESSES: Direct all written commentsto Bureau of Alcohol, Tobacco andFirearms, Linda Barnes, 650Massachusetts Avenue, NW.,Washington, DC 20226, (202) 927–8930.FOR FURTHER INFORMATION CONTACT:Requests for additional information orcopies of the form(s) and instructionsshould be directed to Marsha D. Baker,Wine, Beer and Spirits RegulationsBranch, 650 Massachusetts Avenue,NW., Washington, DC 20226, (202) 927–6993.

SUPPLEMENTARY INFORMATION

Title: Drawback on Wines Exported.OMB Number: 1512–0082.Form Number: ATF F 1582–A

(5120.24).Abstract: When proprietors export

wines that have been produced,packaged, manufactured, or bottled inthe U.S., they file a claim for drawbackor refund for the taxes that have alreadybeen paid on the wine. This formnotifies ATF that the wine was in factexported and helps to protect therevenue and prevent fraudulent claims.





hour and 7 minutes.Estimated Total Annual Burden

Hours: 2025.


Comments submitted in response tothis notice will be summarized and/orincluded in the request for OMBapproval. All comments will become amatter of public record. Comments areinvited on: (a) Whether the collection ofinformation is necessary for the properperformance of the functions of theagency, including whether theinformation shall have practical utility;(b) the accuracy of the agency’s estimateof the burden of the collection ofinformation; (c) ways to enhance thequality, utility, and clarity of theinformation to be collected; (d) ways tominimize the burden of the collection ofinformation on respondents, includingthrough the use of automated collectiontechniques or other forms informationtechnology; and (e) estimates of capitalor start-up costs and costs of operation,maintenance, and purchase of servicesto provide information.




SUMMARY: The Department of theTreasury, as part of its continuing effortto reduce paperwork and respondentburden, invites the general public andother Federal agencies to take thisopportunity to comment on proposedand/or continuing informationcollections, as required by thePaperwork Reduction Act of 1995,Public Law 104–13 (44 U.S.C.3506(c)(2)(A)). Currently, the Bureau ofAlcohol, Tobacco and Firearms withinthe Department of the Treasury issoliciting comments concerning theApplication to Make and Register aFirearm.DATES: Written comments should bereceived on or before March 24, 1997 tobe assured of consideration.ADDRESSES: Direct all written commentsto Bureau of Alcohol, Tobacco and

Firearms, Linda Barnes, 650Massachusetts Avenue, NW.,Washington, DC 20226, (202) 927–8930.FOR FURTHER INFORMATION CONTACT:Requests for additional information orcopies of the form(s) and instructionsshould be directed to Elvenia A. Jones-Ard, National Firearms Act Branch, 650Massachusetts Avenue, NW.,Washington, DC 20226, (202) 927–8330.


Title: Application to Make andRegister a Firearm.

OMB Number: 1512–0024.Form Number: ATF F 1 (5320.1).Abstract: The form is used by the

public when applying to make a firearmthat falls within the purview of theNational Firearms Act. The informationsupplied by the applicant on the formhelps to establish the applicant’seligibility for approval of the request.



households, business or other for-profit.Estimated Number of Respondents:



Hours: 5084.







SUMMARY: The Department of theTreasury, as part of its continuing effortto reduce paperwork and respondentburden, invites the general public andother Federal agencies to take thisopportunity to comment on proposedand/or continuing informationcollections, as required by thePaperwork Reduction Act of 1995,Public Law 104–13 (44 U.S.C.3506(c)(2)(A)). Currently, the Bureau ofAlcohol, Tobacco and Firearms withinthe Department of the Treasury issoliciting comments concerning theAuthorization to Furnish FinancialInformation and Certificate ofCompliance (Right to Financial PrivacyAct of 1978).DATES: Written comments should bereceived on or before March 24, 1997 tobe assured of consideration.ADDRESSES: Direct all written commentsto Bureau of Alcohol, Tobacco andFirearms, Linda Barnes, 650Massachusetts Avenue, NW.,Washington, DC 20226, (202) 927–8930.FOR FURTHER INFORMATION CONTACT:Requests for additional information orcopies of the form(s) and instructionsshould be directed to Marsha D. Baker,Wine, Beer and Spirits RegulationsBranch, 650 Massachusetts Avenue,NW., Washington, DC 20226, (202) 927–6993.

SUPPLEMENTARY INFORMATION

Title: Authorization to FurnishFinancial Information and Certificate ofCompliance (Right to Financial PrivacyAct of 1978).

OMB Number: 1512–0038.Form Number: ATF F 5030.6.Abstract: The Right to Financial

Privacy Act of 1978 limits access torecords held by financial institutionsand provides for certain procedures togain access to the information. ATF F5030.6 serves as both a customerauthorization for ATF to receiveinformation and as the requiredcertification to the financial institution.


Type of Review: Extension.Affected Public: Business or other-




Hours: 500.






SUMMARY: The Department of theTreasury, as part of its continuing effortto reduce paperwork and respondentburden, invites the general public andother Federal agencies to take thisopportunity to comment on proposedand/or continuing informationcollections, as required by thePaperwork Reduction Act of 1995,Public Law 104–13 (44 U.S.C.3506(c)(2)(A)). Currently, the Bureau ofAlcohol, Tobacco and Firearms withinthe Department of the Treasury issoliciting comments concerning theLetterhead Applications and NoticesRelating to Tax-Free Alcohol.DATES: Written comments should bereceived on or before March 24, 1997 tobe assured of consideration.ADDRESSES: Direct all written commentsto Bureau of Alcohol, Tobacco andFirearms, Linda Barnes, 650Massachusetts Avenue, NW.,Washington, DC 20226, (202) 927–8930.FOR FURTHER INFORMATION CONTACT:Requests for additional information orcopies of the form(s) and instructionsshould be directed to Marsha D. Baker,Wine, Beer and Spirits RegulationsBranch, 650 Massachusetts Avenue,

NW., Washington, DC 20226, (202) 927–6993.

SUPPLEMENTARY INFORMATION:Title: Letterhead Applications and

Notices Relating to Tax-Free Alcohol.OMB Number: 1512–0335.Recordkeeping Requirement ID

Number: ATF REC 5150/4.Abstract: Tax-free alcohol is used for

nonbeverage purposes in scientificresearch and medicinal uses byeducational organizations, hospitals,laboratories, etc. The use of alcohol freeof tax is regulated to prevent illegaldiversion to taxable beverage use. Therecord retention requirement for thisinformation collection is 3 years.


Type of Review: Extension.Affected Public: Not-for-profit

institutions, Federal Government, State,Local or Tribal Government.


Estimated Time Per Respondent: 30minutes.

Estimated Total Annual BurdenHours: 2222.







SUMMARY: The Department of theTreasury, as part of its continuing effortto reduce paperwork and respondentburden, invites the general public andother Federal agencies to take thisopportunity to comment on proposedand/or continuing informationcollections, as required by thePaperwork Reduction Act of 1995,Public Law 104–13 (44 U.S.C.3506(c)(2)(A)). Currently, the Bureau ofAlcohol, Tobacco and Firearms withinthe Department of the Treasury issoliciting comments concerning theLetterhead Applications and NoticesRelating to Wine.DATES: Written comments should bereceived on or before March 24, 1997 tobe assured of consideration.ADDRESSES: Direct all written commentsto Bureau of Alcohol, Tobacco andFirearms, Linda Barnes, 650Massachusetts Avenue, NW.,Washington, DC 20226, (202) 927–8930.FOR FURTHER INFORMATION CONTACT:Requests for additional information orcopies of the form(s) and instructionsshould be directed to Marsha D. Baker,Wine, Beer and Spirits RegulationsBranch, 650 Massachusetts Avenue,NW., Washington, DC 20226, (202) 927–6993.


Title: Letterhead Applications andNotices Relating to Wine

OMB Number: 1512–0292Recordkeeping Requirement ID

Number: ATF REC 5120/2Abstract: Letterhead applications and

notices relating to wine are required toensure that the intended activity willnot jeopardize the revenue or defraudconsumers. The record retentionrequirement for this informationcollection is 3 years.






Hours: 825.

Request for Comments:

Comments submitted in response tothis notice will be summarized and/orincluded in the request for OMBapproval. All comments will become amatter of public record. Comments areinvited on: (a) whether the collection ofinformation is necessary for the proper

performance of the functions of theagency, including whether theinformation shall have practical utility;(b) the accuracy of the agency’s estimateof the burden of the collection ofinformation; (c) ways to enhance thequality, utility, and clarity of theinformation to be collected; (d) ways tominimize the burden of the collection ofinformation on respondents, includingthrough the use of automated collectiontechniques or other forms of informationtechnology; and (e) estimates of capitalor start-up costs and costs of operation,maintenance, and purchase of servicesto provide information.




SUMMARY: The Department of theTreasury, as part of its continuing effortto reduce paperwork and respondentburden, invites the general public andother Federal agencies to take thisopportunity to comment on proposedand/or continuing informationcollections, as required by thePaperwork Reduction Act of 1995,Public Law 104–13 (44 U.S.C.3506(c)(2)(A)). Currently, the Bureau ofAlcohol, Tobacco and Firearms withinthe Department of the Treasury issoliciting comments concerning theManufacturers of Ammunition, Recordsand Supporting Data of AmmunitionManufactured and Disposed Of.DATES: Written comments should bereceived on or before March 24, 1997 tobe assured of consideration.ADDRESSES: Direct all written commentsto Bureau of Alcohol, Tobacco andFirearms, Linda Barnes, 650Massachusetts Avenue, NW.,Washington, DC 20226, (202) 927–8930.FOR FURTHER INFORMATION CONTACT:Requests for additional information orcopies of the form(s) and instructionsshould be directed to Julie Cox,Firearms and Explosives OperationsBranch, 650 Massachusetts Avenue,NW., Washington, DC 20226, (202) 927-8310.


Title: Manufacturers of Ammunition,Records and Supporting Data ofAmmunition Manufactured andDisposed Of

OMB Number: 1512–0247.Recordkeeping Requirement ID

Number: ATF REC 5000/2.Abstract: These records are used by

ATF in criminal investigations andcompliance inspections in fulfilling theBureau’s mission to enforce the GunControl Law. The record retentionrequirement for this informationcollection is 2 years.






Hours: 325.






SUMMARY: The Department of theTreasury, as part of its continuing effortto reduce paperwork and respondentburden, invites the general public andother Federal agencies to take thisopportunity to comment on proposedand/or continuing informationcollections, as required by the


Paperwork Reduction Act of 1995,Public Law 104–13 (44 U.S.C.3506(c)(2)(A)). Currently, the Bureau ofAlcohol, Tobacco and Firearms withinthe Department of the Treasury issoliciting comments concerning theRelease and Receipt of ImportedFirearms, Ammunition and Implementsof War.DATES: Written comments should bereceived on or before March 24, 1997 tobe assured of consideration.ADDRESSES: Direct all written commentsto Bureau of Alcohol, Tobacco andFirearms, Linda Barnes, 650Massachusetts Avenue, NW.,Washington, DC 20226, (202) 927–8930.FOR FURTHER INFORMATION CONTACT:Requests for additional information orcopies of the form(s) and instructionsshould be directed to Scott Mendoza,Firearms and Explosives ImportsBranch, 650 Massachusetts Avenue,NW., Washington, DC 20226, (202) 927–8320.


Title: Release and Receipt of ImportedFirearms, Ammunition and Implementsof War

OMB Number: 1512–0019.Form Number: ATF F 6A (5330.3C).Abstract: The information collection

is needed to verify importation offirearms, ammunition and implementsof war. ATF F 6A (5330.3C) iscompleted by Federal firearmslicensees, active duty military members,nonresident U.S. citizens returning tothe U.S. and aliens immigrating to theUnited States.



households, business or other for-profit,not-for-profit institutions.





Comments submitted in response tothis notice will be summarized and/orincluded in the request for OMBapproval. All comments will become amatter of public record. Comments areinvited on: (a) Whether the collection ofinformation is necessary for the properperformance of the functions of theagency, including whether theinformation shall have practical utility;(b) the accuracy of the agency’s estimate

of the burden of the collection ofinformation; (c) ways to enhance thequality, utility, and clarity of theinformation to be collected; (d) ways tominimize the burden of the collection ofinformation on respondents, includingthrough the use of automated collectiontechniques or other forms of informationtechnology; and (e) estimates of capitalor start-up costs and cost of operation,maintenance, and purchase of servicesto provide information.




SUMMARY: The Department of theTreasury, as part of its continuing effortto reduce paperwork and respondentburden, invites the general public andother Federal agencies to take thisopportunity to comment on proposedand/or continuing informationcollections, as required by thePaperwork Reduction Act of 1995,Public Law 104–13 (44 U.S.C.3506(c)(2)(A)). Currently, the Bureau ofAlcohol, Tobacco and Firearms withinthe Department of the Treasury issoliciting comments concerning theReport of Multiple Sales or OtherDisposition of Pistols and Revolvers.DATES: Written comments should bereceived on or before March 24, 1997 tobe assured of consideration.ADDRESSES: Direct all written commentsto Bureau of Alcohol, Tobacco andFirearms, Linda Barnes, 650Massachusetts Avenue, NW.,Washington, DC 20226, (202) 927–8930.FOR FURTHER INFORMATION CONTACT:Requests for additional information orcopies of the form(s) and instructionsshould be directed to Julie Cox,Firearms and Explosives OperationsBranch, 650 Massachusetts Avenue,NW., Washington, DC 20226, (202) 927-8320.


Title: Report of Multiple Sales orOther Disposition of Pistols andRevolvers.

OMB Number: 1512–0006.Form Number: ATF F 3310.4.Abstract: This form is used by ATF to

develop investigative leads and patternsof criminal activity. It identifies possiblehandgun traffickers in the illegal

market. Its use along the borderidentifies possible internationaltraffickers.



profit, Federal Government, State, Localor Tribal Government.





this notice will be summarized and/orincluded in the request for OMBapproval. All comments will become amatter of public record. Comments areinvited on: (a) Whether the collection ofinformation is necessary for the properperformance of the functions of theagency, including whether theinformation shall have practical utility;(b) the accuracy of the agency’s estimateof the burden of the collection ofinformation; (c) ways to enhance thequalilty, utility, and clarity of theinformation to be collected; (d) ways tominimize the burden of the collection ofinformation on respondents, includingthrough the use of automated collectiontechniques or other forms of informationtechnology; and (e) estimates of capitalor start-up costs and costs of operation,maintenance, and purchase of service toprovide information.




SUMMARY: The Department of theTreasury, as part of its continuing effortto reduce paperwork and respondentburden, invites the general public andother Federal agencies to take thisopportunity to comment on proposedand/or continuing informationcollections, as required by thePaperwork Reduction Act of 1995,Public Law 104–13 (44 U.S.C.3506(c)(2)(A)). Currently, the Bureau ofAlcohol, Tobacco and Firearms withinthe Department of the Treasury issoliciting comments concerning the


Applications—Volatile Fruit-FlavorConcentrate Plants.DATES: Written comments should bereceived on or before March 24, 1997 tobe assured of consideration.ADDRESSES: Direct all written commentsto Bureau of Alcohol, Tobacco andFirearms, Linda Barnes, 650Massachusetts Avenue, NW.,Washington, DC 20226, (202) 927–8930.FOR FURTHER INFORMATIONCONTACT:Requests for additionalinformation or copies of the form(s) andinstructions should be directed toMarsha D. Baker, Wine, Beer and SpiritsRegulations Branch, 650 MassachusettsAvenue, NW., Washington, DC 20226,(202) 927–6993.


Title: Applications—Volatile Fruit-Flavor Concentrate Plants.

OMB Number: 1512–0046.Form Number: ATF F 27–G.Recordkeeping Requirement ID

Number: ATF REC 5520/2.Abstract: Persons who wish to

establish premises to manufacturevolatile fruit-flavor concentrates arerequired to file an application sorequesting. ATF uses the applicationinformation to identify personsresponsible for such manufacture sincethese products contain ethyl alcoholand have potential for use as alcoholicbeverages with consequent loss ofrevenue. The application constitutesregistry of a still, a statutoryrequirement. The record retentionrequirement for this informationcollection is 98 years.






Hours: 30.


Comments submitted in response tothis notice will be summarized and/orincluded in the request for OMBapproval. All comments will become amatter of public record. Comments areinvited on: (a) Whether the collection ofinformation is necessary for the properperformance of the functions of theagency, including whether theinformation shall have practical utility;(b) the accuracy of the agency’s estimateof the burden of the collection of

information; (c) ways to enhance thequality, utility, and clarity of theinformation to be collected; (d) ways tominimize the burden of the collection ofinformation on respondents, includingthrough the use of automated collectiontechniques or other forms of informationtechnology; and (e) estimates of capitalor start-up costs and costs of operation,maintenance, and purchase of servicesto provide information.




SUMMARY: The Department of theTreasury, as part of its continuing effortto reduce paperwork and respondentburden, invites the general public andother Federal agencies to take thisopportunity to comment on proposedand/or continuing informationcollections, as required by thePaperwork Reduction Act of 1995,Public Law 104–13 (44 U.S.C.3506(c)(2)(A)). Currently, the Bureau ofAlcohol, Tobacco and Firearms withinthe Department of the Treasury issoliciting comments concerning theRenewal of Explosives License orPermit.DATES: Written comments should bereceived on or before March 24, 1997 tobe assured of consideration.ADDRESSES: Direct all written commentsto Bureau of Alcohol, Tobacco andFirearms, Linda Barnes, 650Massachusetts Avenue, NW.,Washington, DC 20226, (202) 927–8930.FOR FURTHER INFORMATION CONTACT:Requests for additional information orcopies of the form(s) and instructionsshould be directed to Julie Cox,Firearms and Explosives OperationsBranch, 650 Massachusetts Avenue,NW., Washington, DC 20226, (202) 927–8320.


Title: Renewal of Explosives Licenseor Permit.

OMB Number: 1512–0131.Form Number: ATF F 5400.14/

5400.15, Part III.Abstract: This information collection

is used for the renewal of explosiveslicenses and permits. This short renewalform is used in lieu of a more detailedapplication.






Hours: 825.




Customs Service

[T.D. 97–4]

IRS Interest Rates Used To CalculateInterest on Overpayments andUnderpayments of Customs Duties

AGENCY: Customs Service, Treasury.ACTION: General notice.

SUMMARY: This notice advises the publicof the Internal Revenue Service interestrates used, since July 1, 1975, tocalculate interest on overdue accountsand refunds of Customs duties. Thisnotice also advises the public that forthe quarter beginning January 1, 1997,the interest rates will not change fromthe 8 percent for overpayments and 9percent for underpayments establishedJuly 1, 1996. This notice is published forthe convenience of the importing publicand Customs personnel.


EFFECTIVE DATE: January 1, 1997.FOR FURTHER INFORMATION CONTACT:Harry Bunn, Accounting ServicesDivision, Accounts Receivable Group,6026 Lakeside Boulevard, Indianapolis,Indiana 46278, (317) 298–1200,extension 1252.


Background

Pursuant to 19 U.S.C. 1505 andTreasury Decision 85–93, published inthe Federal Register on May 29, 1985(50 FR 21832), the interest rate paid onapplicable overpayments orunderpayments of Customs duties shallbe in accordance with the InternalRevenue Code rate established under 26U.S.C. 6621 and 6622. Interest rates aredetermined based on the short-termFederal rate. The interest rate thatTreasury pays on overpayments will bethe short-term Federal rate plus twopercentage points. The interest rate paidto the Treasury for underpayments willbe the short-term Federal rate plus threepercentage points. The rates will berounded to the nearest full percentage.

The interest rates are determined bythe Internal Revenue Service on behalfof the Secretary of the Treasury basedon the average market yield on

outstanding marketable obligations ofthe U.S. with remaining periods tomaturity of 3 years or less, and fluctuatequarterly. The rates effective for aquarter are determined during the first-month period of the previous quarter.The rates of interest for the secondquarter of fiscal year (FY) 1997 (theperiod of January 1–March 31, 1997)will continue to remain the same asthose that were published for thequarter beginning July 1, 1996: 8 percentfor overpayments and 9 percent forunderpayments. These rates will remainin effect through March 31, 1997, andare subject to change for the thirdquarter of FY–1997 (the period of April1–June 30, 1997).

For the convenience of the importingpublic and Customs personnel thefollowing list of Internal RevenueService interest rates used, since July 1,1975 to date, to calculate interest onoverdue accounts and refunds ofCustoms duties, is published insummary format.

Beginningdate

Endingdate

Under-payments(percent)

Over-payments(percent)

070175 013176 9 9020176 013178 7 7020178 013180 6 6

Beginningdate

Endingdate

Under-payments(percent)

Over-payments(percent)

020180 013182 12 12020182 123182 20 20010183 063083 16 16070183 123184 11 11010185 063085 13 13070185 123185 11 11010186 063086 10 10070186 123186 9 9010187 093087 9 8100187 123187 10 9010188 033188 11 10040188 093088 10 9100188 033189 11 10040189 093089 12 11100189 033191 11 10040191 123191 10 9010192 033192 9 8040192 093092 8 7100192 063094 7 6070194 093094 8 7100194 033195 9 8040195 063095 10 9070195 033196 9 8040196 063096 8 7070196 033197 9 8

Dated: January 15, 1997.George J. Weise,Commissioner of Customs.[FR Doc. 97–1556 Filed 1–22–97; 8:45 am]BILLING CODE 4820–02–P

This section of the FEDERAL REGISTERcontains editorial corrections of previouslypublished Presidential, Rule, Proposed Rule,and Notice documents. These corrections areprepared by the Office of the FederalRegister. Agency prepared corrections areissued as signed documents and appear inthe appropriate document categorieselsewhere in the issue.

Corrections Federal Register

3563

Vol. 62, No. 15



Health Care Financing Administration

42 CFR Chapter IV

DEPARTMENT OF LABOR

Pension and Welfare BenefitsAdministration

29 CFR Chapter XXV


Internal Revenue Service

26 CFR Chapter I

Health Insurance Portability

CorrectionIn proposed rule document 96–33293,

beginning on page 68697, in the issue of

Monday December 30, 1997, make thefollowing correction.

On page 68697, in the second column,in the second line from the bottom, theHCFA e-mail address ‘‘[email protected]’’should read ‘‘[email protected]’’.BILLING CODE 1505–01–D


Public Health Service

[Docket No. 96M–0311]

Draft Public Health Service (PHS)Guideline on Infectious Disease Issuesin Xenotransplantation (August 1996)

Correction

In notice document 96–24448beginning on page 49920 in the issue ofMonday, September 23, 1996 make thefollowing corrections:

1. On page 49920, in the secondcolumn, under SUPPLEMENTARYINFORMATION in the third line,‘‘germ’’ should read ‘‘term’’.

2. On page 49925, in the secondcolumn, in paragraph 3.5. IndividualSource Animal Screening andQualification, in the first line,‘‘indivudal’’ should read ‘‘individual’’.

3. On page 49931, in the first column,in the first line, ‘‘Macques’’ should read‘‘Macaques’’.

4. On the same page, in the samecolumn, in reference number 48, in thefirst line, ‘‘Phllips-Conroy’’, should read‘‘Phillips-Conroy’’.

5. On the same page, in the secondcolumn, in reference number 56, in thefourth line, ‘‘Transplanation’’ shouldread ‘‘Transplantation’’.

BILLING CODE 1505–01–D

fede

ral r

egiste

r

3565

ThursdayJanuary 23, 1997

Part II

Department ofHousing and UrbanDevelopmentFiscal Year 1997 Portfolio ReengineeringDemonstration Program Guidelines;Notice




Fiscal Year 1997 PortfolioReengineering Demonstration ProgramGuidelines

AGENCY: Office of Assistant Secretary forHousing—Federal HousingCommissioner, HUD.ACTION: Notice of DemonstrationProgram and Initial Guidelines.

SUMMARY: This Notice provides initialguidelines to implement aDemonstration Program authorized bythe Departments of Veterans Affairs andHousing and Urban Development andIndependent Agencies AppropriationsAct, 1997 (Pub. L. No 104–204, 110 Stat.2874, approved September 26, 1996)(‘‘HUD FY 1997 Appropriations Act’’).The Demonstration Program is directedat FHA-insured multifamily projectsthat have project-based Section 8contracts with above market rents. TheDemonstration Program is intended toexplore various approaches forrestructuring mortgages and taking otherrelated actions in order to reduce therisk to the FHA insurance fund andlower subsidy costs while preservinghousing affordability and availability.FOR FURTHER INFORMATION CONTACT:George C. Dipman, DemonstrationProgram Coordinator, Office ofMultifamily Housing, Department ofHousing and Urban Development, 451Seventh Street, SW., Washington, DC20410–4000; Room 6106; Telephone(202) 708–3321. (This is not a toll-freenumber.) Hearing or speech-impairedindividuals may call 1–800–877–8399(Federal Information Relay ServiceTTY). Internet address: [email protected].


I. Paperwork Reduction Act StatementThe proposed information collection

requirements contained in this noticehave been submitted to the Office ofManagement and Budget (OMB) forreview in accordance with thePaperwork Reduction Act of 1995 (44U.S.C. 3501–3520). An agency may notconduct or sponsor, and a person is notrequired to respond to, a collection ofinformation unless the collectiondisplays a valid control number. TheDepartment has requested emergencyclearance of the collection ofinformation described below:

(1) Title of the Information collectionproposal: Fiscal Year 1997 PortfolioReengineering Demonstration Program.

(2) Summary of the collection ofinformation: Each owner would submitto HUD, the owner’s request toparticipate. An owner that is not withinthe jurisdiction of a Designee also maysubmit a request to HUD to proceedunder the alternative processing inSection VIII.

Thereafter, each owner would submitto HUD, a Designee, or a lender (underalternative processing), as appropriate,the following information: documentsnecessary to perform the underwriting;modifications to proposed RestructuringCommitments, and information relatingto any appeal of a RestructuringCommitment, and evidence of havingsent appropriate notices. The owner’smust notify tenants, units of generallocal government, and, in certain cases,lenders at key points in the process.

Under Designee Processing, eachprospective Designee would submit toHUD a letter of interest together withevidence of its ability to meet theselection criteria (see Section VII.A.). Ifselected the Designee would submit a

management plan detailing how it willcarry out restructurings. If the Designeeoperates under the fee for serviceapproach, it must submit to HUD, foreach project, a detailed Business Plancontaining the information specified inSection VII.B.1.a.(1) STAGE I. For aDesignee operating under the jointventure approach, submissions to HUDon specific projects, in general, will becertifications and representations.

Under Alternative Processing, eachlender/servicer would submit to HUD aBusiness Plan detailing the terms of therestructuring proposal.

(3) Description of the need for theinformation and its proposed use: Theowner’s request to participate is neededto initiate processing and to provideinformation necessary to ensure that theproject meets statutory eligibilityrequirements to participate in theDemonstration Program. Notices totenants, to units of general localgovernment, and to lenders are intendedto comply with statutory requirementfor such notification and to obtaininformation that may provide for moreinformed decision making.

(4) Description of the likelyrespondents, and proposed frequency ofthe response to the collection ofinformation: Respondents will be (1)certain owners of FHA-insured projectsthat have expiring project-based Section8 contracts; (2) State housing financeagencies, housing agencies andnonprofits; and (3) FHA-approvedlenders and servicers. The estimatednumber of respondents and frequency ofthe response is set out in the table inparagraph (5), below.

(5) Estimate of the total reporting andrecordkeeping burden that will resultfrom the collection of information:

Information Collection Number ofrespondents

Responsesper re-

spondent

Total An-nual re-sponses

Hours perresponse

Totalhours

Guidelinereference

Owner’s request to participate .................................................. 275 1 275 .5 137 VI.A.Owner’s notice to tenants, local governments, and lenders of

intent to participate.275 3 725 1.0 725 VI.D.

Owner-supplied information relating to underwriting ................ 275 3 725 2.0 1,450 VI.F.Owner’s summary to tenants, local governments, and lenders

of Restructuring Commitment.275 3 725 1.5 1,088 V.H.

Owner’s request to modify Restructuring Commitment ........... 100 1 100 1.0 100 VI.I.Owner’s summary to tenants, local governments, and lenders

of substantial modifications to Restructuring Commitment.100 3 300 2.75 825 VI.K.

Owner’s notice to HUD of appeal of Restructuring Commit-ment.

100 1 100 1.0 100 V.L.

Owner’s summary to tenants, local governments, and lendersof the appeal of Restructuring Commitment.

100 3 300 1.0 300 V.L.

Letter of interest to participate as a Designee ......................... 25 1 25 1.0 25 V.II.A.Information to demonstrate qualification as Designee ............. 25 1 25 2.0 50 V.II.A.Designee Management Plan .................................................... 25 1 25 8.0 200 VII.A.Designee Business Plan ........................................................... 25 1 25 40.0 1,000 VII.B.I.Lender/Servicer Business Plan ................................................ 75 1 75 40.0 3,000 VIII.


Information Collection Number ofrespondents

Responsesper re-

spondent

Total An-nual re-sponses

Hours perresponse

Totalhours

Guidelinereference

Total annual burden .................................................................. .................... .................... .................... .................... 9,000

In accordance with 5 CFR1320.8(d)(1), the Department issoliciting comments from members ofthe public and affected agenciesconcerning the proposed collection ofinformation to:

(1) Evaluate whether the proposedcollection of information is necessaryfor the proper performance of thefunctions of the agency, includingwhether the information will havepractical utility;

(2) Evaluate the accuracy of theagency’s estimate of the burden of theproposed collection of information;

(3) Enhance the quality, utility, andclarity of the information to becollected; and

(4) Minimize the burden of thecollection of information on those whoare to respond; including through theuse of appropriate automated collectiontechniques or other forms of informationtechnology, e.g., permitting electronicsubmission of responses.

Interested persons are invited tosubmit comments regarding theinformation collection requirements inthis proposal. Comments must bereceived within seven (7) days from thedate of this proposal. Comments mustrefer to the proposal by name anddocket number (FR–4162) and must besent to: Joseph F. Lackey, Jr., HUD DeskOfficer, Office of Management andBudget, New Executive Office Building,Washington, DC 20503.

II. Introduction

A. Background

Over 800,000 housing units inapproximately 8,500 projects have beenfinanced with FHA-insured loans andsupported by project-based Section 8housing assistance payment (HAP)contracts. In many cases, these HAPcontracts currently provide for rentswhich substantially exceed the rentsreceived by comparable unassisted unitsin the local market. Starting in FiscalYear (‘‘FY’’) 1996, those Section 8contracts began to expire, and Congressand the Administration provided one-year extensions of expiring contracts ata cost of over $200 million. Whileannual HAP contract extensions forthese projects maintain an importanthousing resource, they come at greatexpense. Every year more contractsexpire, compounding the cost of annualextensions. In ten years, the annual cost

of renewing Section 8 contracts rises toapproximately $7 billion, about one-third of HUD’s current budget. If,however, the Section 8 assistance isreduced or eliminated, there is anincreased likelihood that these projectswill be unable to continue to meet theirfinancial obligations includingoperating expenses, debt servicepayments, current and future capitalneeds.

The FY 1997 renewal authority limitsrenewals of most Section 8 project-based assistance contracts expiring inFY 1997 to 120% of Fair Market Rentsand authorizes participation in anoptional Demonstration Program byowners with properties that have FHA-insured mortgages whose rents aresubject to the required reduction. TheDemonstration Program will exploreapproaches to restructuring the debtsecured by these properties whileminimizing adverse impacts on tenants,owners and communities.

These Program Guidelines describethe authority given to HUD under theDemonstration Program and explainhow HUD plans to implement theProgram. As the Department works withowners on restructuring project loansand as questions arise from affectedparties, HUD may periodically provideadditions and clarifications to theseGuidelines.

B. Legislative AuthorityThe Section 8 Contract Renewal

Authority and this PortfolioReengineering Demonstration Programare authorized by sections 211 and 212,respectively, of the Departments ofVeterans Affairs and Housing and UrbanDevelopment, and IndependentAgencies Appropriations Act, 1997(Pub. L. 104–204, 110 Stat. 2874,approved September 26, 1996) (‘‘HUDFY 1997 Appropriations Act’’).

Section 212 also repealed thedemonstration program authorized bysection 210 of Departments of VeteranAffairs and Housing and UrbanDevelopment, and IndependentAgencies Appropriations Act, 1996 (110Stat. 1321) (‘‘HUD FY 96 AppropriationsAct’’). Amounts made available undersection 210, however, remain availablethrough FY 1997 and the FY 1997Demonstration Program does not nullifyany agreements or proposals that havebeen considered under the FY 1996Demonstration Program. Proposals

submitted under the FY 1996Demonstration Program that werereceived by the Department prior toSeptember 25, 1996 will continue to beprocessed by HUD. The Department isimplementing the FY 1996Demonstration Program under noticespublished at 61 FR 34664, July 2, 1996and 61 FR 28757, July 25, 1996.

C. Outline of NoticeThe remaining sections of the

Guidelines provide the followinginformation:

Section III. explains section 211 of theHUD FY 1997 Appropriations Actregarding renewals of up to one year forSection 8 contracts expiring during FY1997 as they relate to the DemonstrationProgram.

Section IV. provides an overview ofthe goals of the Demonstration Programprovided for in section 212 of the HUDFY 1997 Appropriations Act, clarifieseligible and ineligible projects and givesspecific substantive guidance onrestructuring.

Section V. discusses additionalDemonstration Matters, such as,required consents, additionalrestructuring tools, and others.

Section VI. sets forth the procedureswhich owners seeking to participate inthe Demonstration Program will berequired to follow and explains HUDprocessing.

Section VII. provides guidancerelating to the anticipated use ofDesignees in the DemonstrationProgram.

Section VIII. provides guidance onAlternative Processing by lendersmaking new loans and by mortgagees orloan servicers where the existing FHA-insured loan is retained.

Section IX. addresses other provisionsof the Demonstration Programlegislation such as participation ofprojects with post-FY 1997 expirationsand sunshine provisions.

Section X. contains HUD’s findingsand certifications.

The following is a table of contents forthese Program Guidelines:

Table of ContentsI. PAPERWORK REDUCTION ACT

STATEMENTII. INTRODUCTION

A. BACKGROUNDB. LEGISLATIVE AUTHORITYC. OUTLINE OF NOTICE

III. SECTION 8 RENEWAL AUTHORITY


A. SUMMARY OF SECTION 211 AS ITRELATES TO THE DEMONSTRATIONPROGRAM

B. RENEWALS OF SECTION 8CONTRACTS WITH RENTSCURRENTLY ABOVE 120% OF FAIRMARKET RENTS (FMR)

IV. DEMONSTRATION PROGRAMA. PURPOSE/GOALSB. ELIGIBLE PROJECTS1. General Eligibility2. Projects with Mix of Assisted and

Unassisted Units3. Projects with Multiple Section 8

Contracts4. Projects with Public FinancingC. INELIGIBLE PROJECTS1. Projects without FHA-Insured Loans2. Projects that Fail to Meet HQS Standards3. Disqualified OwnersD. TRANSFER OF PROJECTS

DISQUALIFIED FROM THEDEMONSTRATION PROGRAM

E. DEMONSTRATION APPROACHES/UNDERWRITING

1. Mandatory Demonstration Approachesa. Mortgage Restructuring(1) Supportable First Mortgage Loan(2) Second Mortgage Loan(3) Use of Net Cash Flow(4) Funding Rehabilitation Costsb. Debt Forgiveness(1) Amount of Debt Forgiveness(a) Statutory Maximum Amount of Debt

Forgiveness(b) Formula for Computation of Debt

Forgiveness Subject to StatutoryMaximum

(2) Use of Net Cash Flow(3) Funding of Rehabilitation Costsc. Budget-Based Rents(1) Application of Budget-Basing(2) Preference for Unique Projects(3) Calculation of Budget-Based Rents(4) Funding of Rehabilitation Costs2. Project Underwritinga. Purposeb. Method(1) Determination of Adjusted Net

Operating Income(a) Estimation of Income(b) Estimation of Expenses(c) Determining the Level of Required

Physical Improvements(d) Determination of Net Operating Income(2) Owner’s Distribution from Net Cash

FlowV. ADDITIONAL DEMONSTRATION

PROGRAM MATTERSA. REQUIRED CONSENTSB. ADDITIONAL RESTRUCTURING

TOOLS1. Full or Partial Prepayment2. Sale or Transfer of HUD’s Economic

Interest3. Credit Enhancement4. Tenant-Based Section 85. Removal of Restrictions6. Use of Accumulated Residual Receipts7. Payments by HUDC. STRUCTURES TO ADDRESS TAX

LIABILITYD. SOURCES AND USES OF FUNDS

UNDER THE DEMONSTRATIONPROGRAM

1. Sources of Funds

2. Uses of FundsE. AFFORDABILITY REQUIREMENTS.1. Projects with Renewed or New HAP

Contracts.2. Projects without Renewed or New HAP

Contracts3. Long-Term Project Affordability4. Affordability Waiver Authority for

DesigneesF. TENANT PROTECTIONSG. FUNDING AND UNIT LIMITATIONSH. TRANSFER OF PROJECTS

VI. DEMONSTRATION PROCESSA. OWNER’S REQUEST TO PARTICIPATEB. DEMONSTRATION AGREEMENTC. EXECUTION OF DEMONSTRATION

AGREEMENTD. DELIVERY OF NOTICE TO PROJECT

TENANTS, AFFECTED UNIT OF LOCALGOVERNMENT AND LENDER(S)

E. ASSIGNMENT OF RESTRUCTURINGRESPONSIBILITY

F. DUE DILIGENCE PERIOD1. Pre-Restructuring Conference with

Owner2. Pre-Inspection Meeting at Project3. Due Diligence/UnderwritingG. PREPARATION OF HUD’S

RESTRUCTURING COMMITMENTH. NOTIFICATION OF PROJECT

TENANTS, AFFECTED UNIT OF LOCALGOVERNMENT AND PROJECTLENDER(S)

I. OWNER RESPONSE TO HUD’SRESTRUCTURING COMMITMENT

J. MODIFICATION OF RESTRUCTURINGCOMMITMENT

K. ISSUANCE OF RESTRUCTURINGCOMMITMENT AFTER MODIFICATION

L. OWNER APPEAL OF RESTRUCTURINGCOMMITMENT (IF APPLICABLE)

M. CLOSING THE RESTRUCTURINGTRANSACTION

VII. DESIGNEE SELECTION ANDPROCESSING

A. SELECTION CRITERIA TO DETERMINEQUALIFIED DESIGNEES

B. ALTERNATIVE APPROACHES FORDESIGNEE PARTICIPATION IN THEDEMONSTRATION PROGRAM

1. Fee for Service With PerformanceIncentive

a. Compensation Structure(1) Base Fee(2) Bonus Feeb. Processing2. Joint Venture Approacha. Compensation Structureb. Process

VIII. ALTERNATIVE PROCESSINGIX. OTHER PROVISIONS OF

DEMONSTRATION PROGRAMLEGISLATION

A. PARTICIPATION OF PROJECTS WITHPOST-FY 1997 EXPIRATIONS

B. SUNSHINE PROVISIONX. HUD FINDINGS AND CERTIFICATIONS

A. ENVIRONMENTAL IMPACTB. EXECUTIVE ORDER 12612,

FEDERALISMC. EXECUTIVE ORDER 12606, THE

FAMILY

III. Section 8 Renewal Authority

A. Summary of Section 211 as It Relatesto the Demonstration Program

The Section 8 renewal authority andits implementation are fully describedin Housing Notice H 96–89, datedOctober 15, 1996. The renewalauthority, as it relates to theDemonstration Program, is summarizedbelow.

The FY 1997 renewal authority limitsHAP contract renewals of most Section8 project-based assistance contractsexpiring in FY 1997 to 120% of FairMarket Rents and authorizesparticipation in an optionalDemonstration Program by owners withproperties that have FHA-insuredmortgages whose rents are subject to therequired reduction. The DemonstrationProgram will explore approaches torestructuring the debt secured by theseproperties while creating the leastdisruption to tenants, owners andcommunities.

B. Renewals of Section 8 Contracts WithRents Currently Above 120% of FairMarket Rents (FMR)

In general, owners of FHA-insuredmultifamily projects with Section 8contracts that expire in FY 1997 andwhose rents in the aggregate exceed120% of FMR, have two options forcontinuing in the Section 8 program:

(1) They can request that the contractbe renewed for one year at gross rents,in the aggregate, not to exceed 120% ofFMR; or

(2) They can participate in theDemonstration Program.

‘‘FMR’’ are the Fair Market Rents(FMR) for the Section 8 HousingAssistance Payments Program. They areprovided for specific geographic areas ofthe country, for dwelling units ofvarying sizes and are published in theFederal Register at least annually.

‘‘In the aggregate’’ means that thecomparison of Section 8 rent to FMR isexamined not unit-by-unit but for theSection 8-assisted units for the projectas a whole. Specifically, the total rentrevenue at 100% occupancy for theSection 8-assisted units in the projectusing current gross rents (contract rentsplus the utility allowance, if applicable)must exceed the total rent revenue at100% occupancy for the Section 8-assisted units in the project using 120%of the FMR for each unit.

Owners who choose Option (1)should refer to Housing Notice H 96–89dated October 15, 1996, which describesin detail the terms under which HUDwill provide one-year extensions forexpiring Section 8 contracts and to thememorandum from Assistant Secretary


for Housing—Federal HousingCommissioner dated November 1, 1996,entitled ‘‘Clarifications of Procedures forProject-Based Section 8 ContractsExpiring in Fiscal Year 1997.’’

Owners who select Option (2) shouldrefer to the discussion in Sections IV. toIX. for further guidance.

IV. Demonstration Program

A. Purpose/GoalsThe purpose of the Demonstration

Program is to test approaches that retainthe critical affordable housing resourcerepresented by the supply of FHA-insured Section 8 assisted housing andmaintain it in good physical andfinancial condition, while at the sametime reducing the cost of the ongoingFederal subsidy. In carrying out theDemonstration Program, HUD will workwith willing owners and lenders toreduce both Section 8 rents andoperating expenses to true marketlevels, and also provide for the project’scapital improvement needs.

The Demonstration Program willattempt to minimize involuntarydisplacement of tenants, adverse taxconsequences to owners, and adverseeffects on neighborhoods andcommunities, to maintain existingaffordable housing stock in a decent,safe, and sanitary condition, and toencourage responsible ownership andmanagement of property, in the leastcostly fashion. In determining how bestto restructure a project, HUD and theowner will look for ways to balancethese competing goals.

B. Eligible Projects

1. General EligibilityFor a project to be eligible for the

Demonstration Program, the ownersmust agree to participate. The projectsmust be subject to an FHA-insuredmortgage and supported by project-based Section 8 HAP contracts with rentlevels which, in the aggregate, exceed120% of FMR. Preference will be givento projects with contracts expiring in FY1997.

2. Projects with Mix of Assisted andUnassisted Units

A project will be eligible for theDemonstration Program regardless ofwhether all or only some of the units inthe project are covered by a project-based Section 8 HAP contract.

3. Projects with Multiple Section 8Contracts

A project with multiple Section 8contracts, one or more of which expiresin FY 1997 and meets the requirementsfor the Demonstration Program, is

eligible to participate in theDemonstration Program, and will alsobe given preference over other projectswhose contracts expire after FY 1997.

4. Projects with Public Financing

A project with primary financing thatwas provided by a public agency and isFHA-insured and that has a HAPcontract expiring in FY 1997 is eligibleto participate in the DemonstrationProgram with the consent of theappropriate Housing Finance Agencyand the owner.

C. Ineligible Projects

1. Projects without FHA-Insured Loans

A project that does not have an FHA-insured loan will not be eligible toparticipate in the DemonstrationProgram. Some examples include: (i) Aproject whose FHA-insured loan hasbeen assigned to HUD (ii) a project thatis HUD-owned, (iii) a project financedsolely with conventional financing, or(iv) a project with a direct HUD loan.

2. Projects that Fail to Meet HQSStandards

A project that is otherwise eligible toparticipate in the DemonstrationProgram will be deemed ineligible if theproject contains units which fail to meetHousing Quality Standards (HQS) atcontract expiration and the owner hasreceived adequate notice thereof andhas been given the opportunity to cureHQS deficiencies in accordance withChapter 6 of HUD Handbook 4350.1,Multifamily Asset Management andProject Servicing.

3. Disqualified Owners

HUD also will not permit the ownerto participate in the DemonstrationProgram if HUD determines that theowner of the multifamily housingproject has engaged in materiallyadverse financial or managerial actionsor omissions with regard to the project(or with regard to other similar projectsif HUD determines that such actions oromissions constitute a pattern ofmismanagement that would warrantsuspension or debarment by HUD).Material adverse financial actions oromissions are any action or omissionwhich lead to either owner default(monetary or technical), or a violation ofone or more of the contractualobligations under the project’sRegulatory Agreement or Section 8 HAPContract. Violations may include, butare not limited to, submission of falsestatements or certifications to HUD,diversion of project funds, unauthorizeddistributions, and documented projectmismanagement. HUD may renew the

contract of a disqualified owner if theproject is sold to a qualified purchaser.

D. Transfer of Projects DisqualifiedFrom the Demonstration Program

When an owner or purchaser that isineligible for the DemonstrationProgram for reasons described inSection IV.C. 2. and 3. wishes tovoluntarily sell or transfer the property,the procedures that should be followedto facilitate the voluntary sale or transferare described in Section V.H. Tofacilitate a transfer to a qualifiedpurchaser, HUD may renew and transferassistance that has not been renewed inthe case of disqualified projects.

E. Demonstration Approaches/Underwriting

This section sets forth the approachesby which projects in the DemonstrationProgram will be restructured anddescribes the underwriting proceduresto be employed.

1. Mandatory DemonstrationApproaches

Under the Demonstration Program,HUD must utilize one or more of thefollowing demonstration approaches(the ‘‘Mandatory DemonstrationApproaches’’) with respect to eacheligible project: (a) MortgageRestructuring, (b) Debt Forgiveness, or(c) Budget-Based Rents. Otherdemonstration actions may be used withone or more of the MandatoryDemonstration Approaches.

HUD will determine which of theMandatory Demonstration Approachesis appropriate based upon, among otherthings, a calculation of the adjusted, i.e.,market-based, net operating income(‘‘NOI’’) generated by the applicableproject. In those cases in which the NOIis positive, the Mortgage Restructuringor Debt Forgiveness approachesgenerally will be used. If the NOI isnegative, the Budget-Based Rentsapproach generally will be used.

Further, HUD will determine whatconstitutes the Supportable Debt byapplying a 1.10 or greater debt servicecoverage ratio, at the interest rate andterm approved by HUD, to the adjustedNOI. HUD may require that the termand/or interest rate on the first mortgageloan be modified, subject to the consentof the mortgagee.

The Supportable Debt may beadjusted, as necessary, to provide theminimum Owner’s Distribution, asdescribed in Sections IV.E.1.a.(3) andIV.E.1.b.(2), and/or to accommodate thepayment of debt service on arehabilitation loan. The SupportableDebt may, at HUD’s option, also beadjusted if the security for the existing


FHA-insured loan includes vacant landor other non-income producing assetswith additional market value.

a. Mortgage Restructuring. Under theMortgage Restructuring approach, theexisting FHA-insured mortgage loan isdivided into two parts: (i) A performingfirst mortgage loan, and (ii) a secondmortgage loan payable out of Net CashFlow.

In most instances, the MortgageRestructuring shall be accomplished bya partial or full prepayment of theexisting FHA-insured mortgage loan.

(1) Supportable First Mortgage Loan.The amount of the unpaid principalbalance (‘‘UPB’’) of the supportable firstmortgage loan after restructuring shallequal the Supportable Debt. The termRestructured First Mortgage as definedin this section is meant to be used onlyas a means of sizing the SecondMortgage Loan. It is not to be confusedwith the Supportable Debt, which is theamount of the adjusted, performing firstmortgage loan. The Restructured FirstMortgage Loan shall equal theSupportable Debt plus (i) Allcontributions made by the owner (andthe owner’s partners/investors) inconnection with the restructuring, asdetermined by HUD, and (ii) all excessfunds in the project’s reserve forreplacement account, and (iii) all fundsin the project’s residual receipts accountand any other escrows and reserves, asdetermined by HUD, minus (ii) therehabilitation costs approved by HUD,and (iii) the transaction costs approvedby HUD.

(2) Second Mortgage Loan. Unlessotherwise required by HUD, the initialunpaid principal balance of the secondmortgage loan will equal:

(a) The outstanding balance of theexisting FHA-insured mortgage loans(s);minus

(b) The amount of the RestructuredFirst Mortgage. Unless otherwiserequired by HUD, the second mortgageloan will bear interest at a rate not toexceed the long term applicable Federalrate, as set forth pursuant to section1274(d) of the Internal Revenue Code of1986 (26 U.S.C. 1274(d)). Principal andinterest on the second mortgage loanwill be payable out of Net Cash Flow(discussed below), and unpaid interestwill accrue. The second mortgage loanwill be due upon the sale of the projector the refinancing of the first mortgageloan. Other terms and conditions of thesecond mortgage loan will beestablished in the restructuring process.HUD may, at its option, forgive, extend,or allow the assumption of all or a partof the second mortgage loan.

(3) Use of Net Cash Flow. Forpurposes of the Mortgage Restructuring

approach, ‘‘Net Cash Flow’’ means thatportion of the NOI that remains after thepayment of all required debt servicepayments on the first mortgage loan. NetCash Flow shall be applied as follows:First, to payment to the holder of thefirst mortgage loan of any past dueprincipal or interest, and requiredescrows and reserves, on such mortgageloan; second, to the extent of theremaining Net Cash Flow and after theowner has met the maintenancestandards required by HUD, to paymentto the owner of an annual owner’sdistribution of up to $25 per unit permonth (the ‘‘Owner’s Distribution’’)and, if applicable, to payment of anadditional equity distribution to theowner equal to a cumulative 10% onany new cash equity invested by theowner in the project (the ‘‘New EquityDistribution’’) (Note: the proceeds fromthe sale of low-income housing taxcredits (‘‘LIHTCs’’), and the balances ofany residual receipts accounts andcapital reserves, are excluded fromconsideration for purposes ofdetermining the amount of the NewEquity Distribution); and third, to theextent of the remaining Net Cash Flow,to be distributed equally between theowner and HUD. In the event of newequity investment by the owner inconnection with a restructuring, HUDmay waive some or all of thedistribution of cash flow to HUD.

(4) Funding Rehabilitation Costs.Rehabilitation costs will be financedwith funds available in the project’sresidual receipts account and excessfunds in the project’s reserve forreplacements account, as of the date ofthe Mortgage Restructuring. (Use ofexcess funds in the reserve account willbe determined by the DemonstrationManager and will be net of fundsrequired for the initial deposit to thataccount.) If rehabilitation costs exceedthe amount of such available funds, therehabilitation costs may be funded by(1) a contribution of cash equity fromthe owner’s partners/investors, (2) theproceeds of a non-FHA-insuredrehabilitation loan, and/or (3) to theextent that other sources of funds areunavailable, through a loan or grantfrom HUD.

b. Debt Forgiveness. The DebtForgiveness approach will be used, forgood cause and upon request by theowner, to forgive a certain portion of theoutstanding balance of an existing FHA-insured loan. This approach shall beaccomplished through a partial or fullprepayment of the existing FHA-insuredmortgage loan. Under this approach, theowner may choose to keep the reducedFHA-insured mortgage loan in place, orrefinance such loan with new debt and/

or new equity. HUD will consider theowner’s proposals that address how theforgiven debt shall be treated.

(1) Amount of Debt Forgiveness. Theamount of the debt that will be forgivenpursuant to the Debt ForgivenessApproach is equal to the lesser of (a) themaximum amount of debt forgivenessauthorized under the 1997Appropriations Act, as described inSection IV.E.1.b.(1) (a), and (b) theamount of debt forgiveness computedunder the formula described inparagraph (b), below, of this SectionIV.E.1.b.(1).

(a) Statutory Maximum Amount ofDebt Forgiveness. Under the HUD FY1997 Appropriations Act, the maximumamount of debt forgiveness is limited tothat portion of the existing FHA-insureddebt that exceeds the ‘‘market value’’ ofthe applicable project. The project’s‘‘market value’’ will be determinedbased upon an appraisal of the project’sas-is value prepared in accordance withthe Uniform Standards of ProfessionalAppraisal Practice (USPAP). Theappraisal will take into consideration,among other factors, the current marketrents for unsubsidized units in the localmarket area, the project’s currentoperating expenses, any necessaryreserves for long term capitalreplacements, any necessaryrehabilitation costs (see SectionIV.E.2.b.(1)(c)), and any anticipatedcosts relating to the transition of theproject to market rents.

(b) Formula for Computation of DebtForgiveness Subject to StatutoryMaximum. (i) If the FHA-insuredmortgage loan will be refinanced withnon-FHA-insured financing, the amountof debt forgiveness under this formula,unless otherwise required by HUD, willbe:

(1) The sum of (a) the outstandingbalance of the existing FHA-insuredmortgage loan(s), (b) the rehabilitationcosts approved by HUD, and (c) thetransaction costs approved by HUD;minus.

(2) The sum of (a) the UPB of any newfinancing(s) approved by HUD, (b) allcontributions made by the owner (andthe owner’s partners/investors) inconnection with the restructuring, asdetermined by HUD, and (c) all excessfunds in the project’s reserve forreplacement account, all funds in theproject’s residual receipts account, andany other escrows and reserves, asdetermined by HUD.

(ii) If the FHA-insured mortgage loanis retained or refinanced with anotherFHA-insured loan, the amount of debtforgiveness under this formula, unlessotherwise required by HUD, will equal:


(1) The sum of (a) the outstandingbalance of the existing FHA-insuredmortgage loan(s), (b) the rehabilitationcosts approved by HUD, and (c) thetransaction costs approved by HUD;minus

(2) The sum of (a) the SupportableDebt (if the existing FHA-insured loan isretained) or the UPB of the new FHA-insured financing(s), (b) allcontributions made by the owner (andthe owner’s partners/investors) inconnection with the restructuring, asdetermined by HUD, and (c) all excessfunds in the project’s reserve forreplacement account, all funds in theproject’s residual receipts account, andany other escrows and reserves, asdetermined by HUD.

The formula for computing theamount of debt forgiveness may befurther adjusted, at HUD’s option, if thesecurity for the existing FHA-insuredloan includes vacant land or other non-income producing assets withadditional market value.

(2) Use of Net Cash Flow. Forpurposes of the Debt Forgivenessapproach, ‘‘Net Cash Flow’’ means thatportion of the NOI that remains after thepayment of all required debt servicepayments on the first mortgage loan andon the subordinate loan(s), if any. NetCash Flow shall be applied as follows:First, to payment to the holder of thefirst mortgage loan and of anysubordinate loans of any past dueprincipal or interest, and requiredescrows and reserves, on such mortgageloan; second, to the extent of theremaining Net Cash Flow and after theowner has met the maintenancestandards required by HUD, to paymentto the owner of an annual owner’sdistribution of up to $25 per unit permonth (the ‘‘Owner’s Distribution’’)and, if applicable, to payment of anadditional equity distribution to theowner equal to a cumulative 10% onany new cash equity invested by theowner in the project (the ‘‘New EquityDistribution’’) (Note: the proceeds fromthe sale of low-income housing taxcredits (‘‘LIHTCs’’), and the balances ofany residual receipts accounts andcapital reserves, are excluded fromconsideration for purposes ofdetermining the amount of the NewEquity Distribution); and third, to theextent of the remaining Net Cash Flow,to be distributed equally between theowner and HUD. In the event of newequity investment by the owner inconnection with a restructuring, HUDmay waive some or all of thedistribution of cash flow to HUD.

(3) Funding of Rehabilitation Costs. Ifthe FHA-insured mortgage loan will berefinanced with non-FHA-insured

financing, the HUD approvedrehabilitation costs will be financedwith funds available in the project’sresidual receipts account and excessfunds in the project’s reserve forreplacements account, as of the date ofthe Debt Forgiveness. If therehabilitation costs exceed the amountof such funds, the rehabilitation costsmay be funded by (a) a contribution ofcash equity from the owner’s partners/investors, and/or (b) the proceeds of thenon-FHA-insured refinancing loan, and(c) to the extent that other sources offunds are unavailable, through a loan orgrant from HUD.

If the FHA-insured mortgage loan isretained or refinanced with anotherFHA-insured loan, the HUD approvedrehabilitation costs will be financedwith funds available in the project’sresidual receipts account and excessfunds in the project’s reserve forreplacements account, as of the date ofthe Debt Forgiveness. If therehabilitation costs exceed the amountof such funds, the rehabilitation costsmay be funded by (1) a contribution ofcash equity from the owner’s partners/investors, (2) the proceeds of a non-FHA-insured rehabilitation loan, (3) theproceeds of an FHA-insuredrehabilitation loan, and/or (4) to theextent that other sources of funds areunavailable, through a loan or grantfrom HUD.

For owners who want to refinance theoriginal FHA-insured loan, mortgageinsurance from the following FHAprograms may be provided:

(a) Section 223(f), acquisition andrefinance with limited renovations—loan to value limit of 85 percent; or

(b) Section 223(a)(7), refinance of aninsured loan to lower the interest rateand to fund rehabilitation costs—loanlimit is up to the original insuredprincipal amount.

c. Budget-Based Rents. The Budget-Based Rents approach will be used, inlimited circumstances, to renew HAPcontracts expiring in FY 1997 for aperiod of up to one year at budget-basedrents not to exceed the rent levels in theexpiring HAP contract.

(1) Application of Budget-Basing. TheBudget-Based Rents approach isintended for projects in which theapplication of Mortgage Restructuring orDebt Forgiveness alone is infeasible. Itis anticipated that the Budget-BasedRents approach will be used for thefollowing types of projects:

(a) If the project has a negativeadjusted NOI, that is, the adjustment ofrents to market levels would not enablethe project to pay its reasonable andnecessary operating expenses.Reasonable operating expenses, for

these purposes, will not include theOwner’s Distribution or New EquityDistribution.

(b) If the project’s market rents arehigher than both 120% of the applicableFMRs and the gross rents (HAP contractrents plus any applicable utilityallowance amounts), and restructuringmay result in the displacement oftenants.

(2) Preference for Unique Projects.HUD may give a preference toprocessing under the Budget-BasedRents approach to certain uniqueprojects, such as those designated foroccupancy by elderly families and thoselocated in rural areas.

(3) Calculation of Budget-Based Rents.Under the Budget-Based Rentsapproach, rents will be set at a levelsufficient to support the aggregateamount of the applicable project’sreasonable operating expenses, providedthat such rents do not exceed the rentsunder the expiring HAP contract.

For purposes of the Budget-BasedRents approach, a project’s reasonableoperating expenses shall include:

(a) Reasonable and necessaryoperating expenses, including adequateannual contributions to the reserve forreplacements account;

(b) A reasonable return to the owner,based on the Owner’s Distribution; and

(c) Debt service payments that remainon the existing FHA-insured mortgageloan after principal reduction, if any.

The amount of the reasonableoperating expenses (and contributionsto the reserve for replacements account)will be determined based upon anappraisal of the project prepared inaccordance with the USPAP and aphysical needs assessment.

The rents set under the Budget-BasedRents Approach will be reevaluatedeach year prior to any further renewalof the HAP contract. Each annual HAPcontract renewal is subject toCongressional appropriations.

(4) Funding of Rehabilitation Costs.Under the Budget-Based Rentsapproach, the HUD approvedrehabilitation costs will be financedwith funds available in the project’sresidual receipts account and excessfunds in the project’s reserve forreplacements account, as of the date theBudget-Based Rents are implemented. Ifthe rehabilitation costs exceed theamount of such funds, the rehabilitationcosts may be funded by a contributionof cash equity from the owner’spartners/investors. For projects with anegative NOI at market rents, HUD maysupplement the funds available forrehabilitation with a grant of up to$5,000 per unit, which amount may be


increased in extraordinarycircumstances.

2. Project Underwritinga. Purpose. The purpose of

demonstration project loanunderwriting is to reduce annual section8 contract renewal costs that result fromsubsidizing rents at above market levels.Projects in the Demonstration Programwill be analyzed and restructured tobring their rents and expenses in linewith the rents and expenses that arecomparable to unassisted units in thelocal market area. The majority ofprojects will continue to receive project-based section 8 assistance at thosemarket levels through one-year contractrenewals, subject to annualappropriations. At the same time, FHA-insured first mortgages will be reducedto reflect changed project income.

b. Method. HUD will first estimate aproject’s net operating income (NOI) bydeducting operating costs, includingreserves for replacement, from marketrents. The NOI will be used todetermine the Supportable Debt; thatdebt may be adjusted downward toaccommodate the cost of scheduledrepairs and to provide the minimumOwner’s Distribution. HUD willdetermine the amount of first mortgageprincipal reduction by subtracting thesupportable mortgage and other sourcesof funds from the unpaid principalbalance of the original mortgage.

For project loans restructured byHUD, project underwriting necessary forrestructuring will be the responsibilityof the Demonstration Manager,operating most often from selected HUDfield offices and assisted by a DueDiligence Contractor. The Due DiligenceContractor will contract for appraisals,Physical Needs Assessments and anyother reports as may be required byHUD.

Appraisals must meet the standardsand procedures of the UniformStandards of Professional AppraisalPractice (USPAP), published by theAppraisal Standards Board of TheAppraisal Foundation, as modified byHUD. The appraisal will be the basis fordetermining market income andexpenses.

(1) Determination of Adjusted NetOperating Income. The adjusted NetOperating Income (NOI) will be used tohelp determine which DemonstrationApproach should be employed withrespect to a particular project and todetermine the size of the SupportableDebt. Computation of the adjusted NetOperating Income will require ananalysis of the estimated income andexpenses of each project afteradjustment to market levels.

(a) Estimation of Income. To estimatethe total income of a project, HUD willanalyze: (a) The expected rentalrevenues to be generated from operationof the project at market rents; (b) theanticipated vacancy rate for the project;and (c) any other income (e.g., incomefrom laundry and parking facilities) thatis expected to be generated by theproject. The determination of marketrent will assume the project has beenrehabilitated to meet the requirementsof the Physical Needs Assessment asdescribed in Section IV.E.2.b.(1)(c).Market rents, for the purpose ofunderwriting, are the rents achievable inthe immediate vicinity for comparableunassisted units in good condition.

(b) Estimation of Expenses. For thepurposes of project underwriting, totalexpenses will include: (1) Reasonableoperating expenses; and (2)contributions to the reserve forreplacement account.

(i) Operating Expenses. It is the intentof this Demonstration Program thatproject operations be reevaluated inorder to reduce operating costs wherepossible. HUD will analyze ordinaryand necessary operating expenses forthe project. The analysis will consider,among other factors, historical operatingstatements, owner input, and standardexpenses by type and market. Projectexpenses will be compared to FHA-insured mortgage portfolio averages,other market data and industrystandards published regularly byentities, including, but not limited to,the Institute for Real Estate Management(IREM).

(ii) Reserves for Replacement. Anallowance for scheduled contributionsto the reserve for replacement accountto fund ongoing capital needs will beincluded under gross expenses. Theamount will be based on an inspectionof the building and a schedule ofimprovements included in the PhysicalNeeds Assessment.

(c) Determining the Level of RequiredPhysical Improvements. In determiningthe level of physical improvements aproperty requires, HUD will direct aDue Diligence Contractor to inspect theproject and complete a Physical NeedsAssessment.

Participation in the DemonstrationProgram will not affect theresponsibility of owners who undertakea rehabilitation program to comply withthe accessibility requirements describedat 24 CFR 8.23, Alterations of existinghousing facilities, and 8.24, Existinghousing programs, as applicable.

The Physical Needs Assessment willbe done in accordance with the FannieMae (FNMA) Physical NeedsAssessment Guidance to the Property

Evaluator for the DelegatedUnderwriting and Servicing (DUS)Program, as may be modified by HUD.This guide instructs the propertyevaluator to examine the condition ofthe building, including all its systemsand components, and provide (1) adescription of significant repair andreplacement needs, both immediate andlong-term, and (2) a description of anysignificant issues affecting tenants’health and safety.

In addition, the DemonstrationManager will direct the Due DiligenceContractor to estimate the cost of anyimprovements necessary to enable theproject to compete with similar butunsubsidized projects in its localmarket. The intent of physicalimprovement is not to reposition theproperty in the market place, but tocreate a product that is consistent withits original position in the market. Indetermining the amount ofrehabilitation to be done, theDemonstration Manager will balance theneed to enable the project to competewith similar but unassisted projects inits local market with the need to keepthe rents as affordable as possible. Theresult should be a marketable projectthat competes on rents rather than onamenities.

(d) Determination of Net OperatingIncome. Net Operating Income (NOI) isthe amount of project income thatremains after all operating expenses,including the contribution to thereplacement reserve, have beenestimated. It is calculated by deductingtotal expenses from total income.

(2) Owner’s Distribution from NetCash Flow. In exchange for the paymentit makes to reduce principal on theoriginal mortgage, HUD will requireowners to share Net Cash Flow dollar-for-dollar with HUD. As an incentive tomaintain the property, however, theowner may receive an annualdistribution of 100% of Net Cash Flowup to a ceiling equal to $25 per unit permonth (‘‘Owner’s Distribution’’); andalso, where appropriate, a New EquityDistribution.

The Owner’s Distribution, in all cases,will be subordinate to the first mortgageand will be paid only to the extent thatthe cash flow to pay it is available. Anyunpaid distributions will not accrue.Further, the Owner’s Distribution willbe held in an escrow account and paidto the owner only after HUD or itsrepresentative inspects the project andfinds that all units are in substantialcompliance with maintenance standardsset forth by HUD as part of therestructuring agreement. Any ownerwho fails to deposit all Net Cash Flow


to the retention account will waive itsrights to future distributions.

In sizing the amount of supportabledebt, HUD will make an adjustment sothat Net Cash Flow on a pro forma basisis not less than $25 per unit per month.The adjustment will be made as follows:

If Net Cash Flow is equal to or greaterthan or equal to $25 dollars per unit permonth, the distribution will not bededucted from debt service for thepurpose of sizing the mortgage.

If Net Cash Flow is less than thedistribution of $25 per unit per month,the difference between the distributionand Net Cash Flow will be deductedfrom the amount of projected debtservice, thus reducing the size of thesupportable loan and insuring theavailability of the Owner’s Distribution.

The Owner’s Distribution must beearned and maintained thoroughefficient management. It is not aguarantee. Adjustments to debt serviceand cash flow will be made only atinitial underwriting; future adjustmentsto Owner’s Distribution to offset risingoperating costs will not be allowed byHUD. HUD, however, may make futureadjustments to the $25 per unit permonth ceiling to respond to inflation.

V. Additional Demonstration ProgramMatters

A. Required ConsentsThe implementation of one or more of

the Mandatory DemonstrationApproaches shall be subject to receipt ofall necessary third party consents. Theowner and/or HUD as appropriate, shallbe responsible for obtaining theconsents from necessary parties.Guidance on projects with Ginnie MaeMortgage Backed Securities will beprovided in the future.

B. Additional Restructuring ToolsIn addition to the mandatory

demonstration approaches describedabove, HUD has authority to take any ofthe following actions with respect toeach project in the DemonstrationProgram:

1. Full or Partial PrepaymentWith the prior consent of the insured

mortgagee, HUD may choose to make afull or partial prepayment to the holderof the FHA-insured loan prior to thedate of any defaults.

2. Sale or Transfer of HUD’s EconomicInterest

HUD may enter into contracts eitherto purchase reinsurance or to transfer tothird parties HUD’s economic interest incontracts of insurance or insurancepremiums paid. HUD may not elect todo this for more than 5,000 units in the

Demonstration Program during FY 1997.Any contract HUD executes under thisparagraph shall require that associatedunits be maintained as low-incomeunits for the life of the mortgage(s),unless HUD has waived this provisionfor good cause.

3. Credit EnhancementHUD may provide new FHA

multifamily mortgage insurance,contract for reinsurance or provide othercredit enhancement alternatives. HUDmay also retain the existing FHAinsurance on a restructured supportablefirst mortgage loan, or permit the use ofthe multifamily risk-sharing mortgageprograms, as provided under section542 (b) and (c) of the Housing andCommunity Development Act of 1992(Pub. L. No. 102–550; 106 Stat. 3794; 12U.S.C. 1707 note), to the extent thatappropriations or housing units areavailable. Unless otherwise agreed to bythe project owner, not more than 25%of the units with expiring Section 8contracts, in the aggregate, may berestructured during FY 1997 withoutFHA insurance.

4. Tenant-Based Section 8With the consent of the owner of the

project, and after consulting withtenants, HUD may substitute tenant-based Section 8 assistance for some orall of the units covered by a project’sSection 8 rental assistance contract.This Section 8 tenant-based assistance,however, can be provided only whereHUD has determined and certified thatthere is adequate, available, andaffordable housing within the local areaand that tenants will be able to use theSection 8 tenant-based assistancesuccessfully.

HUD may make this substitution fornot more than 10% of the aggregatenumber of units in projects restructuredduring any one fiscal year.

5. Removal of RestrictionsHUD, with the owner’s consent and

other parties’ consent, as necessary, andafter consulting with the tenants, mayremove, modify or agree to the removalof any mortgage, regulatory agreement,project-based assistance contract, useagreement, or restriction that hadpreviously been imposed or required byHUD which would interfere with theability of the project to operate withoutabove-market rents. HUD may alsoremove any limitations previouslyimposed by HUD with respect to thedistribution of a project’s Net CashFlow. It is HUD’s intention afterrestructuring to eliminate the limiteddividend distribution requirements,should they be currently required, and

associated collection of residualreceipts.

6. Use of Accumulated ResidualReceipts

HUD may require the owner to applyany accumulated residual receiptstowards effecting the purposes of theDemonstration Program.

7. Payments by HUD

HUD may enter into such agreements,provide such concessions, incur suchcosts, make such grants (includinggrants to finance approvedrehabilitation costs) and otherpayments, and provide other valuableconsideration, as HUD determines arereasonably necessary in order to enableowners, lenders, servicers, third partiesand other entities to participate in theDemonstration Program.

C. Structures to Address Tax Liability

Owners of projects undergoingrestructuring may be exposed to taxconsequences associated withcancellation of debt, and taxation ofcapital gains or ordinary income. It isthe expressed desire of Congress that theDemonstration Program minimize, ifpossible, tax consequences to owners.Absent specific legislative relief, HUDwill accept proposals from ownerswhich include any tax motivatedstructure deemed by the owner to beacceptable to the Department of theTreasury that will limit or defer taxliability and which will not adverselyaffect a project’s financial integrity ormanagement.

D. Sources and Uses of Funds Under theDemonstration Program

1. Sources of Funds

The funds which HUD anticipatesusing in connection with an owner’sparticipation in the DemonstrationProgram may include the following:

a. Funds in the project’s residualreceipts account;

b. Excess funds in the project’sreserve for replacements fund;

c. New project financing, either FHA-insured or non-FHA-insured obtainedby the owner;

d. New equity to be contributed bynew or existing owners and partners/investors (including additional capitalcontributions);

e. New equity raised from a proposedsale or other disposition of the project(100% of the purchase price relating toany sale or other disposition must besupported by a third party USPAPappraisal);

f. New equity raised from the sale oflow-income housing tax credits;


g. To the extent other sources of fundsare not available, full or partial mortgageprepayments from HUD;

h. To the extent required, asdetermined by HUD, direct loans orgrants from HUD; and

i. With respect to projects withSection 8 contracts expiring after FY1997, the capitalized value of Section 8project-based assistance in excess ofmarket rents.

2. Uses of FundsSubject to the approval of HUD and,

where required, to mortgagee approval,the permitted uses of such funds willinclude the following:

a. Reduction or cancellation ofexisting FHA-insured debt and, whereappropriate, other debt on the propertyapproved by HUD, including a paymentto an escrow account to be used for suchpurposes;

b. Payment of delinquent taxes,insurance premiums and/or otheramounts owing with respect to theproject, including amounts necessary toremove liens or judgments;

c. Payment of reasonablerehabilitation, renovation, maintenanceor construction expenses necessary tomeet the requirements of the PhysicalNeeds Assessment;

d. Payment of reasonable legal andother transactional costs (including title,survey, appraisals, etc.);

e. Payment of reasonable fees andcosts associated with obtaining newfinancing (including prepaymentpenalties, discounts, etc.);

f. Payments of reasonable oversightfees for nonprofits to cover reasonablepre-development costs; and

g. Relocation costs.

E. Affordability Requirements

1. Projects with Renewed or New HAPContracts

Unless otherwise waived by HUD forgood cause, each project ownerparticipating in the DemonstrationProgram that is provided with a new orrenewed HAP contract (other than anytemporary renewal provided during theDemonstration Program processingperiod) will be required for a period ofup to 20 years from the date of closingof the Demonstration Restructuring, toaccept each offer by HUD to renew theproject’s HAP contract. The terms andconditions of the HAP contract renewalsshall be set forth in: (a) TheRestructuring Commitment (asdescribed in Section VI.G.) betweenHUD and the owner, and/or (b) anamendment to the renewed HAPcontract. All such renewals shall besubject to annual Congressionalappropriations.

2. Projects without Renewed or NewHAP Contracts

Unless otherwise waived by HUD forgood cause, with respect to any projectparticipating in the DemonstrationProgram that is not provided with a newor renewed HAP contract, the ownerand HUD shall execute a Use Agreementin the same form as that described inSection V.E.1.; provided, however, thatsuch Use Agreement shall also requirethe owner to accept Section 8 tenant-based certificates or vouchers from theproject’s existing tenants, to the extentsuch tenants choose to remain in theproject, for a period, in the aggregate, ofup to 20 years after the DemonstrationRestructuring closing for the projectoccurs.

3. Long-Term Project AffordabilityWhen the Mortgage Restructuring or

Debt Forgiveness approaches are used,the project will be required to complywith affordability requirementsestablished by HUD. Unless otherwiseagreed to by HUD, the affordabilityrequirements shall remain in effect fora minimum of 20 years from the date theMortgage Restructuring or DebtForgiveness is made effective.Affordability requirements shall beincorporated into a recorded UseAgreement.

If statutorily permitted by the sectionof the National Housing Act underwhich the mortgage is insured, theaffordability requirements will be thesame as those of the Low-IncomeHousing Tax Credit program, namely,the project shall be required tomaintain: (a) At least 20% of the unitsin the project with families whoseadjusted income does not exceed 50%of the area median income, or (b) at least40% of the units in the project withfamilies whose adjusted income doesnot exceed 60% of the area medianincome. Affordability requirements maybe waived by HUD for good cause.

4. Affordability Waiver Authority forDesignees

None of the affordability requirementsin this Section V.E. may be waived bya Designee, except with express priorwritten approval of HUD.

F. Tenant ProtectionsIf the owner has provided the

required notice, any eligible familyresiding in a project-based Section 8assisted unit that is covered by anexpiring contract that is not renewedwill be offered tenant-based assistanceas provided in Housing Notice H 96–89prior to the date on which the project-based HAP contract expires. If theowner chooses not to request a renewal

and if proper notice was not given, theowner must permit the tenants assistedby the expiring DemonstrationAgreement to remain in their units forthe full notice period without increasingthe tenant portion of the rent under theDemonstration Agreement. Publichousing authorities will be allocatedadditional HAP contract authority on anannual basis in order to assure thatfamilies so affected will be providedtenant-based Section 8 contracts. Publichousing authorities will be responsiblefor administering the issuance of thesetenant-based Section 8 contracts.

G. Funding and Unit Limitations

The funding limitation for theDemonstration Program is set at$40,000,000. This amount is comprisedof $30,000,000 made available undersection 210 of the Departments ofVeterans Affairs and Housing and UrbanDevelopment and Independent AgenciesAppropriations Act, 1996, appropriatedto remain available through September30, 1997 and $10,000,000 appropriatedunder section 212 of the FHAMultifamily Demonstration AuthorityHUD 1997 Appropriations Act,appropriated to remain available untilSeptember 30, 1998. Total fundsavailable are net of commitments madein the implementation of the FY 1996Portfolio Reengineering DemonstrationProgram.

The $40,000,000 shall include anycredit subsidy costs associated withproviding direct loans or mortgageinsurance as well as costs of modifyingand restructuring loans held orguaranteed by the Federal HousingAdministration.

H. Transfer of Projects

When the owner of a project in theDemonstration Program voluntarilytransfers the property, HUD shallfacilitate the transfer to tenantorganizations, tenant-endorsednonprofit organizations or public agencypurchasers which are qualified to ownand manage multifamily properties.HUD will give final approval to theselected purchaser upon the completionof the following selection process by theowner, and certification by the ownerthat this process has been followed. Tofacilitate a transfer to a qualifiedpurchaser, HUD may transfer existingSection 8 project-based assistance to thepurchaser or transferee. In the transferof physical assets, demonstration projectowners must follow the process below:

1. The owner shall notify potentialqualified tenant organizations andexperienced tenant-endorsed nonprofitorganizations or public agency


purchasers of the availability of theproject for sale by:

a. Mailing notices to eligibleorganizations;

b. Placing notices in the major localnewspaper(s) in the jurisdiction inwhich the project is located;

c. Mailing notices to clearinghousenetworks; or

d. Using any other means ofnotification which HUD determineswould be effective to notify potentialqualified purchasers of the sale of theproperty.

2. For the 90-day period beginning onthe date of receipt by HUD of a noticeof intent to transfer physical assets, theowner may accept a bona fide offer onlyfrom:

a. A resident council intending topurchase the project and retain it asrental housing, certifying that it has thesupport of a majority of tenants;

b. A tax-exempt nonprofitorganization that has a record of serviceover at least five years of providingquality low-income housing and whichhas the support of a majority of tenants;or

c. A qualified public agency.3. During this 90-day period, although

offers may be made by other prospectivepurchasers, these offers may not beaccepted by the owner until theexpiration of the 90-day period. If nobona fide offer to purchase the projectis made by any of these groups andaccepted by the owner at the end of the90-day period, which period may beextended by HUD for good cause, theowner may accept an offer to purchasethe project from any qualifiedpurchaser.

VI. Demonstration ProcessThis section explains the

Demonstration Program process thatwill be followed by HUD and projectowners for eligible project loans. TheDemonstration Program provides forboth Designee Processing and AlternateProcessing as well as direct HUDprocessing of Demonstration projectloans.

In the case of Designee processing,initial intake and referral to theappropriate Designee is theresponsibility of HUD and thereafter theDesignee is responsible for projectmanagement. (See Section VII. forfurther information on DesigneeProcessing.)

Owners seeking new first mortgagefinancing may bypass the majority of theHUD restructuring process and have thequalified lender perform the necessaryunderwriting and due diligenceactivities. In cases where the FHA loanis being retained, HUD may request the

mortgagor or loan servicer to performcertain due diligence and underwritingof activities under certain conditions.(See Section VIII.)

The following describes therestructuring process to be implementeddirectly by HUD.

A. Owner’s Request to ParticipateTo participate in the Demonstration

Program, owners with Section 8contracts due to expire in FY 1997 mustcomplete, execute and return to HUD,no later than 45 days prior to theexpiration of their Section 8 contract, aRequest to Participate in theDemonstration Program (the Request toParticipate). The Request to Participateshould be in the form of a letter ofinterest which includes the name andaddress of the project and the date theSection 8 contract expires.

Owners with contracts expiringwithin 45 days of the date of publicationof these Guidelines who, therefore,cannot provide the full 45 days ofnotice, must provide notice to HUD assoon as possible but not later than 45days from the publication of theseGuidelines. If the project has more thanone Section 8 contract, the 45 days willbe measured from the expiration date ofthe contract with the earliest expiration.

Owners who do not submit the aboveRequest to Participate on or before therequired deadlines will not be eligible toparticipate in the DemonstrationProgram, unless compliance with thedeadlines is waived by HUD for goodcause. This Request to Participateshould be addressed to the Director ofMultifamily Housing in the HUD fieldoffice with jurisdiction over the project.

B. Demonstration AgreementWithin ten business days of HUD’s

receipt of the owner’s Request toParticipate in the DemonstrationProgram, the field office Director ofMultifamily Housing will prepare andsend to the owner the following:

1. A Demonstration Agreement which:(a) Sets forth the Owner’s obligation toproceed in good faith to negotiate aRestructuring Commitment with HUDwithin 180 calendar days afterexecution of the DemonstrationAgreement; (b) sets forth the Owner’sobligation to provide all documents andinformation reasonably requested byHUD in order to enable the project toparticipate in the DemonstrationProgram; and (c) requires the owner tocertify that it has provided the notice tothe tenants, the Affected Unit of LocalGovernment and the lender(s), asrequired in Section VI.D.;

2. An Addendum to theDemonstration Agreement in the form of

a Housing Assistance PaymentsDemonstration Renewal Contract, theform of which is included asAttachment 3(c) of the Housing NoticeH 96–89 dated October 15, 1996 (theHAP Renewal Contract),

3. An attachment containing the nameand address of the project, the Section8 and FHA project numbers, the sectionof the National Housing Act underwhich the mortgage is insured, anowner or owner agent contact name,address and telephone and fax numbers,and unit type and rental information,consisting of contract rents, utilityallowances, if any, and FMR’s.

C. Execution of DemonstrationAgreement

In order to participate in theDemonstration Program, the owner willbe required to execute and deliver theDemonstration Agreement to theDirector of Multifamily Housing in theHUD field office with jurisdiction, nolater than 10 business days prior to theSection 8 contract expiration date. Thisdeadline may be extended by theDemonstration Program Coordinator forgood cause. HUD will execute the HAPRenewal Contract and DemonstrationAgreement only after receipt of owner’sevidence that proper notification toproject tenants, the Affected Unit ofLocal Government and project lender(s)has been provided in accordance withSection VI.D.

HUD will assign a DemonstrationProgram Tracking Number to the projectafter execution of the DemonstrationAgreement.

D. Delivery of Notice to Project Tenants,Affected Unit of Local Government andLender(s)

Simultaneously with the delivery ofthe Request to Participate to HUD, theowner shall deliver notice of theowner’s intention to participate in theDemonstration Program to: (a) Thetenants residing in the project, (b) thechief official of the Affected Unit ofLocal Government having jurisdictionover the project, and (c) the mortgageeof the project’s FHA-insured loan. The‘‘Affected Unit of Local Government’’ isthe smallest unit of general localgovernment with jurisdiction in whichthe project is located.

Notification to project tenants must beaccomplished by delivery of notices toeach project tenant and by posting thenotice in at least two conspicuouspublic places in each building for aminimum of three (3) consecutivecalendar days. If a tenant organization ofproject tenants exists which officiallyrepresents all tenants, notice may beprovided to the tenants’ organization


rather than to each tenant individually,but notice must still be posted in allproject buildings as described in thisparagraph.

The notice to project tenants requiredunder the Demonstration Program shallbe in addition to the required one-yearnotice of Section 8 contract expirationrequired under the section 8(c)(9) of theUnited States Housing Act of 1937 andHUD Notice H 96–89.

The notice must also include:1. A copy of the ‘‘Request to

Participate’’ provided by the owner toHUD, including the date of the Section8 contract expiration;

2. An explanation of tenantprotections afforded.

3. A statement that project tenants,the Affected Unit of Local Governmentand lender(s) have the opportunity toprovide written comment. They areparticularly encouraged to providewritten comments on the project’sphysical needs and propertymanagement.

4. A statement that comments shouldbe sent to the Director of MultifamilyHousing in the HUD field office withjurisdiction over the project and thatwritten comments will be accepted forup to 45 days after the date of executionof the Demonstration Agreement.

5. A statement that prior to the startof preparation of the Physical NeedsAssessment for the project by a DueDiligence Contractor, a preinspectionmeeting will be held on site and that upto 3 representatives each, of both projecttenants and the Affected Unit of LocalGovernment, and their technicalconsultants, if any, will be invited tothis meeting. It should further indicatethat the owner will provide a separatewritten 10 day notice of this meeting tothe project lender(s), project tenants andto the chief official of the Affected Unitof Local Government. Any writtencomments received by the time of thismeeting will be provided to the DueDiligence Contractor responsible forpreparing the Physical NeedsAssessment. The notice should advisethat upon completion of the PhysicalNeeds Assessment, one copy of theAssessment will be provided to theinsured lender, project tenants and onecopy to the chief official of the AffectedUnit of Local Government.

6. A statement that the owner willprovide the project lender(s), projecttenants and the chief official of theAffected Unit of Local Government witha brief summary of HUD’s RestructuringCommitment.

7. A statement that if the ownerchooses to appeal the terms of aRestructuring Commitment, the ownerwill notify the project lender(s), project

tenants and the chief official of theAffected Unit of Local Government inwriting concurrently with itssubmission of the appeal to HUD. It willfurther advise these parties that theywill have 20 days from the date of theappeal submission to provide writtencomments to HUD.

8. In instances where lender consentis needed, a request that the lender stateits willingness to participate in theDemonstration Program.

9. A statement that the Affected Unitof Local Government is encouraged toapprise representatives of the localcommunity and neighborhood of thisnotice.

Evidence that proper notice wasprovided must be sent to theDemonstration Manager.

E. Assignment of RestructuringResponsibility

Within 10 business days followingHUD’s receipt of the executedDemonstration Agreement from theowner, HUD will assign responsibilityfor the project either to a qualifiedDesignee, whenever possible or, if thereis no available Designee for the projectlocation, to a HUD DemonstrationManager. (See Section VII. for DesigneeProcessing.)

In the case of HUD processing, theDemonstration Manager will operatemost often out of selected field officesand will be assisted by a Due DiligenceContractor who will contract forappraisals, Physical Needs Assessmentsand any other reports as may berequired by HUD. The DemonstrationManager will be responsible for:

1. Working with the owner, a DueDiligence Contractor, project tenants,project Lender(s), the Affected Unit ofLocal Government, and others asnecessary to accomplish therestructuring;

2. Determining which of thedemonstration approaches areappropriate for restructuring the projectloan;

3. Negotiating the terms andconditions of a RestructuringCommitment and related documentswith the owner; and

4. Coordinating the preparation,processing and closing of theRestructuring Commitment and therelated documents.

F. Due Diligence Period

Once the Demonstration Manager orthe Designee is selected, the DueDiligence period will commence.

1. Pre-Restructuring Conference withOwner

Promptly following the execution ofthe Demonstration Agreement by HUDand the owner, the DemonstrationManager will meet with the owner todiscuss the owner’s views with respectto the appropriate level of debt, marketrents, operating costs, capital needs,preference for debt forgiveness, any ofthe additional restructuring tools listedin Section V.B., and any other relatedmatters. At this conference, the owner’srestructuring proposal, if any, may bepresented and given initial review.

2. Pre-Inspection Meeting at Project

Prior to the inspection of the propertyby a Due Diligence Contractorresponsible for preparation of thePhysical Needs Assessment, a pre-inspection meeting must be held on site.Participants will include, at a minimum,the HUD Demonstration Manager andDue Diligence Contractor, the owner orowner’s representative, up to threerepresentatives of the project tenants ortheir technical consultants, if any, andup to three representatives of theAffected Unit of Local Government.Local HUD field office representativeswill also be invited to attend. The ownermust provide a minimum of 10 dayswritten notice of the meeting to projecttenants, project lender(s), and theAffected Unit of Local Government.

3. Due Diligence/Underwriting

Promptly following the execution ofthe Demonstration Agreement by HUD,the Demonstration Manager and DueDiligence Contractor will work closelywith the owner to obtain the requiredinformation and perform theunderwriting necessary to negotiate arestructuring commitment. TheDemonstration Manager and DueDiligence Contractor will analyze theproject’s market rents and expenses,determine Net Operating Income,estimate the project’s market value, andobtain any other information regardingthe financial, physical, environmental,or other condition of the property he/she needs to negotiate a restructuringcommitment with the owner.

The owner must cooperate fully withthe Demonstration Manager and DueDiligence Contractor during this processand must provide timely access to theproperty and to project documents asrequested. In addition, within 14calendar days of executing theDemonstration Agreement, the ownermay submit to the DemonstrationManager a detailed estimate of projectoperating costs after restructuring iscompleted. Failure to cooperate is


grounds for terminating theDemonstration Agreement.

HUD intends to develop additionaladministrative guidance for determiningmarket rents, operating expenses, thelevel of rehabilitation required, the useof replacement reserve accountbalances, and other such matters.

G. Preparation of HUD’S RestructuringCommitment

The Demonstration Manager, usingthe information produced during theDue Diligence phase of theDemonstration Process, will develop aRestructuring Commitment that utilizesone or more of the mortgagerestructuring, forgiveness of debt, orbudget-based rents approaches.

The Restructuring Commitment willbe presented in writing to the ownerand the owner will be provided 30calendar days to accept theCommitment or to submit a counterproposal to the Demonstration Manager.

Any project rehabilitation or capitalimprovements financially supported orrequired by HUD must be processed inaccordance with HUD’s environmentalreview requirements in 24 CFR part 50,prior to HUD’s presentation of theRestructuring Commitment. All projectsmust be in conformance with floodinsurance purchase requirements, asapplicable, in accordance with 24 CFR50.4(b)(1).

H. Notification of Project Tenants,Affected Unit of Local Government andProject Lender(s)

Upon receipt of the RestructuringCommitment, the owner shall deliver bymail a brief summary of the documentto project tenants, the chief official ofthe Affected Unit of Local Government,and the lender(s), and submit evidenceto the Demonstration Manager thatproper notification was provided. If anorganization of project tenants exists,which officially represents all tenants,notice may be provided to the tenants’organization rather than to each tenantindividually. The Affected Unit of LocalGovernment shall be requested toprovide this notification to anyrepresentatives of local communitiesand neighborhoods that it chooses toinform.

I. Owner Response to HUD’SRestructuring Commitment

Within 30 calendar days following theowner’s receipt of HUD’s RestructuringCommitment, the owner must either (i)execute the Restructuring Commitment(without modification) and return it tothe Demonstration Manager; or (ii)notify the Demonstration Manager inwriting of any modifications to the

Restructuring Commitment that itrequests prior to its execution. Shouldthe owner accept the RestructuringCommitment, the execution of thecommitment must be accompanied byany required third party consents. Forexample, these include the consent ofthe insured mortgagee and the consentof limited partners, if required under theterms of a limited partnershipagreement.

J. Modification of RestructuringCommitment

The Demonstration Manager shall,promptly following its receipt from theowner of any modifications to theRestructuring Commitment, workclosely with the owner to review andevaluate all such modifications, resolveany issues, and prepare and deliver tothe owner a revised RestructuringCommitment which reflects thosemodifications acceptable to HUD. Finalnegotiation of a RestructuringCommitment shall occur during aperiod not to exceed 40 calendar daysafter the Demonstration Manager’sreceipt of the owner’s modifications,unless extended by HUD for good cause.

K. Issuance of RestructuringCommitment After Modification

Upon receipt of the modifiedRestructuring Commitment, the owner,only if the changes are substantive andsubstantial, shall deliver a briefsummary of the document to projecttenants, the chief official of the AffectedUnit of Local Government, and thelender(s) by mail and shall submitevidence to the Demonstration Managerthat proper notification was provided. Ifa tenant organization of project tenantsexists, which officially represents alltenants, notice may be provided to thetenants’ organization rather than to eachtenant individually. The Affected Unitof Local Government shall be requestedto provide this notification to anyrepresentatives of local communitiesand neighborhoods that it chooses toinform.

The owner will have 30 days from thedate the Restructuring Commitment isdelivered by HUD in which to executethat document and return it to HUD.This 30 day period may be extended bythe Department.

L. Owner Appeal of RestructuringCommitment (if applicable)

If, for any reason, an owner desires toappeal the modified RestructuringCommitment issued by HUD, an appealmust be submitted in writing to theDirector of Multifamily Housing orDirector of Housing, in the local fieldoffice, within 10 calendar days of the

issuance date of the modifiedRestructuring Commitment.

The written notice of appeal shallspecifically state, in reasonable detail,the issues and bases upon which theowner seeks review. The Departmentwill issue a written determinationwithin thirty (30) calendar days of thedate of the appeal.

The owner must notify the projectlender(s), project tenants and the chiefofficial of the Affected Unit of LocalGovernment in writing concurrentlywith its submission of the appeal toHUD. It will further advise that theseparties will have 20 days from the dateof the appeal submission to providewritten comment to HUD. If anorganization of project tenants exists,which officially represents all tenants,notice may be provided to the tenants’organization rather than to each tenantindividually.

If the appeal process results in amutually satisfactory conclusion, HUDand the owner will execute a finalversion of the revised RestructuringCommitment. If HUD denies the owner’sappeal, HUD will so notify the owner inwriting. Upon such notification, theowner may execute the RestructuringCommitment as last revised by HUD, ormay choose not to participate in theDemonstration Program.

In cases where no restructuringagreement is reached and theDemonstration Agreement expires, theowner may request a one-year Contractrenewal in accordance with section211(b) of the HUD FY 1997Appropriations Act, as implemented byHousing Notice H 96–89. In most cases,the rents under the one-year renewalContract will be set at 120% of theapplicable FMR. Section 211(b) (2) and(3) contain exemptions to the 120%limitation; if the project qualifies for oneof these exemptions, rents would bemaintained at current levels.

If the owner chooses not to request arenewal, and if the appropriate noticehas been provided, HUD will providetenant-based assistance to all eligiblefamilies in accordance with HousingNotice H 96–89.

If the owner chooses not to request arenewal and if proper notice was notgiven, the owner must permit thetenants assisted by the expiringDemonstration Agreement to remain intheir units for the full notice periodwithout increasing the tenant portion ofthe rent under the DemonstrationAgreement.

M. Closing the RestructuringTransaction

Loan closing must occur within 60days of execution of the Restructuring


Commitment. If necessary for closing,HUD will extend the HAP RenewalContract by up to 60 calendar days. Anadditional extension period may begranted by HUD, if closing is delayeddue to circumstances beyond the controlof the owner. In no case may the HAPContract be extended for more than 6months if the RestructuringCommitment has not been executed.

The Demonstration Manager will beresponsible for coordinating the closing.Where the restructuring involves newFHA-insured financing, the closingmust be completed in accordance withFHA processing requirements.

VII. Designee Selection and ProcessingHUD will provide qualified Designees

the opportunity to enter intoarrangements with HUD forrestructuring Demonstration Programprojects in their jurisdiction or servicearea. HUD will select qualified statehousing finance agencies, housingagencies or nonprofit entities(Designees) to take responsibility forprocessing project restructuring underthe Demonstration Program.

A. Selection Criteria to DetermineQualified Designees

HUD’s selection of qualifiedDesignees will be made based on thecriteria listed in the followingparagraph. Interested state and localhousing participants must submit lettersof interest to HUD on or before February15, 1997, and should include thepotential Designee’s geographic area ofjurisdiction and its qualifications.Applicants who are already approved asFHA risk sharing lenders are notrequired to submit qualifications.Letters of interest must be accompaniedby a letter of support from the ChiefElected Official of the area(s) ofjurisdiction. Credentials will bescreened and applicants will be selectedon or before April 1, 1997. HUD mayresolicit public entity applicants on orabout April 15, and make selections onor about May 31. HUD will accept latesubmissions only for areas that have notbeen assigned a Designee. However, forprojects with Section 8 contracts thatexpire prior to February 15, 1997, on acase by case basis, HUD will assignthese projects to Designees who havesubmitted Letters of Interest prior toFebruary 15, 1997, for specific projects.

Nonprofit Designees will be selectedthrough a formal Request forQualification (RFQ) process. The RFQwill be published in early 1997.

The selection criteria on which theapplicants will be rated are as follows:

1. Demonstrated experience withmultifamily loan restructurings;

2. Demonstrated experience inmultifamily financing, and asset/property management experiencerelating to affordable multifamilyhousing;

3. Demonstrated staff experience andcapacity for managing a restructuringprocess for multifamily projects; and

4. A history of stable, financiallysound, and responsible administrativeperformance.

These selection qualifications may bedemonstrated either by the Designeeapplicant alone or in partnership withother entities with proven experienceand capacity in this area. If a teamapproach is chosen, the Designeeapplicant must provide evidence of itsability to manage this type of team.Designee applicants are encouraged todevelop partnerships with each other aswell as with other private and publicentities, including: (i) Financialinstitutions, (ii) mortgage servicers, (iii)the Federal National MortgageAssociation, (iv) the Federal Home LoanMortgage Corporation, (v) Federal HomeLoan Banks, (vi) other state or localmortgage insurance companies or banklending consortia, (vii) nonprofit andfor-profit housing organizations.

In its selection, HUD will givepreference to qualified Designees thathave had positive previous associationwith specific projects that may seekrestructuring.

Once a Designee is selected, it willthen be responsible for processing allprojects in the Demonstration Programin its area of jurisdiction, although insome circumstances, HUD and theDesignee may agree to a more limitedinitial engagement. The Designee maychoose to reject certain projects thatrepresent extraordinary risk, which bymutual agreement can be retained byHUD. In the event the Designee rejectsa project, responsibility for that projectwill be given to the DemonstrationManager. Until and unless a Designee isselected for an area, HUD will act asDesignee.

The management plan setting forththe manner in which the Designee willcarry out the restructuring must beapproved by HUD and will be attachedas a provision of the contract to beentered into by the Designee and HUD.

In the event that potential Designeeswith overlapping jurisdictions expressinterest and are determined to bequalified, they must first attempt toenter into an agreement as to howprojects to be restructured will beallocated. This agreement must beexecuted by the Chief Elected Official ofeach jurisdiction. Until such time asagreement is reached, HUD will beresponsible for processing

demonstration projects in the affectedservice area.

In the event qualified nonprofitentities desire to operate in areas wherestate or local agencies are acting asDesignees, the nonprofit will berequired to enter into a cooperationagreement with the relevant Designeewith jurisdiction prior to participatingin restructuring in that jurisdiction.Where more than one nonprofit desiresto operate in a single geographic area,HUD will allocate projects based ontheir qualifications and familiarity withthe local market area.

Until such time as qualified Designeesare selected for specific areas, HUD willbe responsible for DemonstrationProgram implementation.

B. Alternative Approaches for DesigneeParticipation in the DemonstrationProgram

Designees may contract with HUDunder one of two approaches:

1. Fee for Service With PerformanceIncentive

a. Compensation Structure. Underthis approach, the Designee will be paidon a uniform fee structure, to beestablished by HUD, which will includeboth a Base Fee and an incentive fee,called a Bonus Fee, as defined in thecontract to be negotiated between HUDand the Designee.

(1) Base Fee. The Base Fee will beearned and paid based on achievementof certain stages of performance asindicated below.

Stages of Performance Criteria onwhich Base Fee will be earned:

Stage I: Submission of Detailed BusinessPlan

Submission to HUD of a detailedBusiness Plan to include:

(i) An outline of the ownership entity,loan documents (and bond documents,if applicable);

(ii) Required third party approvals;(iii) A completed appraisal meeting

the requirements of the UniformStandards of Professional AppraisalPractice (USPAP), published by theAppraisal Standards Board of theAppraisal Foundation, as modified byHUD, incorporating data on operatingexpenses available from FHA andentities such as IREM;

(iv) Underwriting analysis includingassessment of market rents andoperating expenses based on theappraisal, historical operating expenses,and determination of Net OperatingIncome, supportable financing,proposed principal reduction,rehabilitation financing, and ownerinput;


(v) Assessment of rehabilitationneeds;

(vi) Description and rationale for themandatory demonstration approachbeing selected;

(vii) Evidence of proper notification totenants, Affected Unit of LocalGovernment and lender(s);

(viii) Summary of comments receivedin the process and how they wereaddressed;

(ix) Environmental issues;(x) Litigation issues;(xi) Tax issues;(xii) Public policy issues;(xiii) Written record of inquiries from

public officials regarding therestructuring; and

(xiv) Other issues as provided morespecifically in further guidance to beprovided by HUD. All information inthe Business Plan is to be supported bythe findings of the due diligenceactivities.

Stage II: Executed RestructuringCommitment

Reach agreement on a post-appealRestructuring Commitment or aggregateCommitments in the case of multipleproject restructurings, executed by theDesignee and owner within 180 days ofthe date of the contract between HUDand the Designee that:

(i) Meets or exceeds net savings togovernment anticipated by the HUD costsaving model as adjusted and agreed toby HUD to accommodate projectfinancing and public policy needs; and

(ii) Achieves HUD’s public policyobjectives to be defined jointly by theDesignee and HUD.

Stage III: Closing of the Transaction

Close transaction based on aRestructuring Commitment within 60days of the execution of theRestructuring Commitment.

(2) Bonus Fee. In addition to the BaseFee for Service, a Bonus Fee would beearned based on the following BonusObjectives being achieved:

(a) Amount of Savings to the FederalGovernment, based on the HUD modelfor credit scoring;

(b) Timeliness. Closing the transactionin a period shorter than the projected 60days after execution of the RestructuringCommitment; and

(c) Achieving HUD and local PublicPolicy Objectives. Providing anexceptional solution to meeting HUD’spublic policy objectives, in HUD’s soleestimation.

b. Processing. Once a project in theDemonstration Program has beenassigned by HUD to the Designee, theDesignee will be responsible foraccomplishing the restructuring of the

project in a period of 180 days from thedate of the Demonstration Agreementand closing in a period not to exceed 60days from the execution of theRestructuring Commitment. TheDesignee’s process for restructuringmust be consistent with the authorizinglegislation for the DemonstrationProgram and must meet mandatoryDemonstration Program objectivesincluding statutory notificationrequirements.

The Designee will be required to seekHUD approval and the approval of theinsured mortgagee and other necessarythird parties at the three Stagesdescribed above in Section VII.B.1.a.(1).The Business Plan and the FinalRestructuring Commitment will requireHUD approval.

As in direct HUD processing, theowner will have 10 calendar days fromthe issuance of the RestructuringCommitment to appeal, in writing, tothe Director of Multifamily Housing inthe HUD field office with jurisdiction,the terms Restructuring Commitment.The written notice of appeal shallspecifically state, in reasonable detail,the issues and bases upon which theowner seeks review. Following theappeal, a modified Commitment may beissued by HUD. If needed, after signinga modified Commitment, the owner willqualify for an extension of theDemonstration HAP Contract. Failure tosign a Restructuring Commitment willresult in the termination of theDemonstration Agreement and areduction of project rents to 120% ofFMR.

Any project rehabilitation or capitalimprovements supported or required byHUD must be processed in accordancewith HUD’s environmental reviewrequirements in 24 CFR part 50, prior toHUD’s approval of a Designee’s DetailedBusiness Plan. All projects must be inconformance with flood insurancepurchase requirements, as applicable, inaccordance with 24 CFR 50.4(b)(1). HUDwill also execute the closing documents.Where full or partial mortgageprepayment from the FHA InsuranceFund or new FHA-insured financing isincluded in the restructuring, newregulatory agreements must be enteredinto.

The Demonstration Program limits thenumber of units for which HUD maypermit assignment of its insuredposition, enter into contracts topurchase reinsurance or otherwisetransfer economic interest in thecontracts of insurance to 5,000 units.HUD will approve requests fromDesignees to receive such assignment inthe order in which they are received andsubject to HUD’s assessment of the

benefit to the Federal Government andthe timeliness of implementation. In theabsence of designees for any geographicarea, HUD may assume the role ofdesignee and sub-contract theassignment of economic interest.

The Demonstration Program alsolimits the number of units for whichHUD may substitute tenant-basedSection 8 assistance for project-basedassistance to 10% of the aggregatenumber of units in projects restructuredin any one fiscal year. HUD willapprove requests for tenant-basedassistance for projects that demonstratenew and innovative approaches torestructuring, subject to availability,given the 10% limitation.

In the Designee’s restructuringprocess, HUD will be the initial point ofcontact with owners and will beresponsible for allocating projects to theselected Designee.

2. Joint Venture Approacha. Compensation Structure. HUD

seeks joint venture arrangements inwhich nonprofit or public entityDesignees assume some or all of HUD’srisk of restructuring in exchange for ashare of the savings to the FederalGovernment resulting fromrestructuring. In most cases, savings tothe Government will be measured bycomparing the cost to the Governmentthat would occur if the project were notrestructured and the first mortgagedefaulted with the cost to theGovernment of the restructuring by thejoint venture.

The objective of the joint ventureapproach is to explore ways tosignificantly reduce HUD’sadministrative role whilesimultaneously advancing the interest ofthe Federal Government (taxpayers) inthe restructurings. The risk ofrestructuring assumed by designeescould include originating a newuninsured or partially insured loan,making a cash payment for theassignment of HUD’s economic interestin insurance in force, or other form asdesigned and proposed by the Designee.

In joint venture arrangements, theDesignee investment can take the formof money, time, or credit exposure. Theinvestment may be made directly by theDesignee or by a partner of the Designee,such as those public and private entitieslisted in Section VII.A. The freedom ofthe Designee to control the transactionwill be commensurate with the level ofinvestment. HUD seeks to transfersufficient risk and reward to theDesignee to insure that HUD’s objectiveswill be met with substantially reducedHUD monitoring and involvement.Ideally, HUD would not review interim


stages of the restructuring process andwould accept the Designees’ warranties,certifications and representations. It ispossible that HUD would delegate all itspowers to the designees including theability to authorize full or partialmortgage prepayment and would relysolely on a post-restructuring audit toverify that the interests of the FederalGovernment were fairly represented inthe transaction.

Payments to Designees for fees, returnon investment and, if applicable,administration of Section 8 will befunded from transaction proceeds,Section 8 appropriations and otherfunds as HUD may determine.

b. Process. The Joint VentureDesignees will be responsible for alldecision making. HUD approvals will bebased on representations andcertifications made by the Designee. TheDesignee’s process for restructuringmust be consistent with the authorizinglegislation for the DemonstrationProgram and must meet mandatoryDemonstration Program objectivesincluding statutory notificationrequirements and affordabilityrequirements.

Joint Venture Designees will indicatein their letter of interest or RFQ thatthey desire to handle, on a joint venturebasis, some or all of the projects in theirservice areas whose owners opt toparticipate in the DemonstrationProgram. Once the joint venture is inplace, HUD will assign the Designeedemonstration projects. In its selection,HUD will give preference to qualifiedDesignees that have had positiveprevious association with specificprojects that may seek restructuring.

After being selected by HUD, theDesignees will meet with theDemonstration Program Coordinator andHUD financial advisors to develop ajoint venture approach that is mutuallysatisfactory to HUD and the Designees.The approach with each Designee willbe formally described in a joint ventureagreement that will set forth Designeerisk and authority, HUD oversight, acost to government calculation modeland a method of sharing savings togovernment with HUD and theDesignee. The joint venture agreementshall provide that HUD shall completeits environmental review requirementsunder 24 CFR part 50, as applicable,prior to the entry of any restructuringcommitment by HUD or binding HUD.The agreement shall also provide thatall projects must be in conformancewith flood insurance purchaserequirements, as applicable, inaccordance with 24 CFR 50.4(b)(1).

The Demonstration Program limits thenumber of units for which HUD may

permit assignment of its insuredposition, enter into contracts topurchase reinsurance or otherwisetransfer economic interest in thecontracts of insurance to 5,000 units.HUD will approve requests fromDesignees to receive such assignment inthe order in which they are received andsubject to HUD’s assessment of thebenefit to the Federal Government andthe timeliness of implementation. In theabsence of Designees for any geographicarea, HUD may assume the role ofDesignee and sub-contract theassignment of economic interest.

The Demonstration Program alsolimits the number of units for whichHUD may substitute tenant-basedSection 8 assistance for project-basedassistance to 10% of the aggregatenumber of units in projects restructuredin any one fiscal year. HUD willapprove requests for tenant-basedassistance for projects that demonstratenew and innovative approaches torestructuring, subject to availability,given the 10% limitation.

VIII. Alternative ProcessingThe following alternative processing

may also be used for projects that arenot within the jurisdiction of aDesignee.

Within 10 days of execution of theDemonstration Agreement in the case ofFY 1997 contract expirations, or uponsubmission of a restructuring proposalin the case of post-1997 contractexpirations, and where the FHA loan isrefinanced by a new loan with orwithout FHA insurance, owners mayelect to engage an FHA approved lenderor servicer to undertake some or all ofthe due diligence and underwritingdescribed in these guidelines, subject toreview and approval by theDemonstration Manager or the fieldoffice Multifamily Director. The lender/servicer shall submit to HUD a detailedBusiness Plan signed by the owner toinclude:

A. An outline of the ownership entityand loan documents required for therestructuring proposal (and bonddocuments, if necessary);

B. Third party approvals required;C. Completed appraisal meeting the

requirements of the Uniform Standardsof Professional Appraisal Practice(USPAP), published by the AppraisalStandards Board of the AppraisalFoundation, as modified by HUD,incorporating data on operatingexpenses available from FHA andentities such as IREM;

D. Underwriting analysis includingassessment of market rents andoperating expenses based on theappraisal, proposed operating expenses,

determination of NOI, supportablefinancing, proposed principal reduction,rehabilitation financing, owner input;

E. Assessment of rehabilitation needs;F. Description and rationale for the

mandatory demonstration approach torestructuring being selected;

G. Evidence and certification ofproper notification of tenants, AffectedUnit of Local Government and lender(s)of the owner’s intent to participate inthe Demonstration Program, and asummary of comments received in theprocess and how they were addressed.The same process that HUD requiresowners to follow for notification,outlined in Section VI.D., must befollowed;

H. Description of environmentalissues, if any;

I. Description of litigation issues andtax issues;

J. Description of public policy issues;K. Written record of inquiries from

public officials regarding therestructuring; and

L. Other issues as provided morespecifically in further guidance to beprovided by HUD.

All information in the Business Planis to be supported by the findings of thedue diligence activities.

The restructuring Business Plan willbe submitted to the DemonstrationManager and or Field Office MultifamilyDirector for approval. Any projectrehabilitation or capital improvementssupported or required by HUD must beprocessed in accordance with HUDenvironmental review requirements in24 CFR part 50, prior to HUD’s approvalof the restructuring Business Plan. Allprojects must be in conformance withFlood Insurance purchase requirements,as applicable, in accordance with 24CFR 50.4(b)(1). HUD will respond to theBusiness Plan in 30 days, afternegotiating with the owner and lender,with a Restructuring Commitment. As indirect HUD processing, the owner willhave 10 calendar days from the issuanceof the Restructuring Commitment toappeal, in writing, to the Director ofMultifamily Housing in the HUD fieldoffice with jurisdiction, the termsRestructuring Commitment. The writtennotice of appeal shall specifically state,in reasonable detail, the issues andbases upon which the owner seeksreview. Following the appeal, amodified Commitment may be issued byHUD. If needed, after signing a modifiedCommitment, the owner will qualify foran extension of the Demonstration HAPContract. Failure to sign a RestructuringCommitment will result in thetermination of the DemonstrationAgreement and a reduction of projectrents to 120% of FMR.


In cases where the FHA loan is beingretained, HUD may request themortgagee or loan servicer to performdue diligence activities andunderwriting, in coordination with theDemonstration Manager, as currentlypermitted for certain mortgagees andservicers under FHA policies.

IX. Other Provisions of DemonstrationProgram Legislation

A. Participation of Projects With Post-FY 1997 Expirations

In the allocation of DemonstrationProgram funding resources, priority willbe given to projects with Section 8contracts expiring in FY 1997.Demonstration projects with contractsexpiring after FY 1997 will not beprocessed until (i) all projects withcontracts expiring in FY 1997 haveeither closed on a RestructuringCommitment or the DemonstrationAgreement has expired; or (ii) HUDdetermines that the proposedrestructuring imposes no cost to theFederal Government as calculated usingthe rules established for implementationof the Budget Enforcement Act of 1990.In general, the determination of cost togovernment will compare the loss to theGovernment (cost to FHA) that wouldoccur if the demonstration candidatewere to have rents set in accordancewith section 211(b) of the HUD FY 1997Appropriations Act, to the cost to FHAof the proposed restructuring. If therestructuring of a project costs less, ona discounted basis, than the total costsif the project goes all the way throughthe default process (assuming projectrents are reduced to 120% of FMR), thenthat project will be included in theDemonstration Program.

Post-FY 1997 project owners mayenter the Demonstration Program bysubmitting a letter of interest to theDemonstration Program Coordinator.The letter of interest must include thefollowing:

a. Project Name and Address;b. FHA Project Number;c. FHA Insurance Program;d. Unit Rental Information: Gross rent

(contract rent plus utility allowance, if

applicable) by unit type, number of totalunits and assisted units by unit type,owner estimate of market rents by unittype, gross rent as a percentage of FMR;

e. HAP Expiration Date and a copy ofthe HAP contract and Section 8Identification Number;

f. Loan Information: Unpaid PrincipalBalance of the FHA-insured mortgage(s),original principal amount, loan maturitydate;

g. Owner contact name, address,telephone number and fax number; and

h. Management agent name, address,telephone number and fax number.

Within 30 calendar days after HUD’sreceipt of letters of interest, HUD willrespond to the owner with a calculationof probable cost or savings togovernment, based on the comparisondescribed above. If the proposedrestructuring appears to generatesavings, it will be referred to a Designeeor to a HUD Demonstration Manager forprocessing. At the same time, projecttenants, Lender(s) and the Affected Unitof Local Government will be notified inthe same manner as required for projectswith Section 8 contracts expiring in FY1997. This notice must be coordinatedwith the Field Office having programjurisdiction. HUD’s restructuringprocessing for projects with post-FY1997 expirations follows the sameprocess the projects with FY 1997expirations. Designee processing isdiscussed in Section VII of theseGuidelines and Alternate processing isdiscussed in Section VIII.

B. Sunshine ProvisionIn order that others may learn from

the experience of the DemonstrationProgram, all proposals accepted by HUDto participate in the 1997 DemonstrationProgram may be posted on theDepartment’s Web Page (www.hud.gov/fha/mfh/mfhsec8.html). The postedinformation will include, but not belimited to, the final restructuringcommitment, detailed financialinformation regarding the asset andtenant issues. Owners will be requestedto waive the provisions of the PrivacyAct (5 U.S.C. 552a) and the TradeSecrets Act (18 U.S.C. 1905).

X. HUD Findings and Certifications

A. Environmental Impact

A Finding of No Significant Impactwith respect to the environment hasbeen made in accordance with HUDregulations at 24 CFR part 50, whichimplement section 102(2)(C) of theNational Environmental Policy Act of1969. The Finding of No SignificantImpact is available for public inspectionbetween 7:30 a.m. and 5:30 p.m.weekdays in the Office of the RulesDocket Clerk at the above address.

B. Executive Order 12612, Federalism

The General Counsel, as theDesignated Official for HUD undersection 6(a) of Executive Order 12612,Federalism, has determined that theprovisions in this notice are closelybased on statutory requirements andimpose no significant additionalburdens on States or other publicbodies. This notice does not affect therelationship between the FederalGovernment and the States and otherpublic bodies or the distribution ofpower and responsibilities amongvarious levels of government. Therefore,the policy is not subject to review underExecutive Order 12612.

C. Executive Order 12606, The Family

The General Counsel, as theDesignated Official under ExecutiveOrder 12606, The Family, hasdetermined that this notice does nothave potential for significant impact onfamily formation, maintenance, andgeneral well-being, and, thus, is notsubject to review under the order. Thenotice implements a statutorilyauthorized demonstration program andis intended to find ways of reducing theimpact on families that might otherwisebe caused by the nonrenewal of Section8 project-based rental assistance.

Dated: January 14, 1997.Stephanie A. Smith,General Deputy Assistant Secretary forHousing—Federal Housing Commissioner.[FR Doc. 97–1557 Filed 1–22–97; 8:45 am]BILLING CODE 4210–27–P

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ThursdayJanuary 23, 1997

Part III

Department ofHealth and HumanServicesFood and Drug Administration

21 CFR Part 101Food Labeling: Health Claims; Oats andCoronary Heart Disease; Final Rule

3584 Federal Register / Vol. 62, No. 15, Thursday, January 23, 1997 / Rules and Regulations


Food and Drug Administration

21 CFR Part 101

[Docket No. 95P–0197]

RIN 0910–AA19

Food Labeling: Health Claims; Oatsand Coronary Heart Disease

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

SUMMARY: The Food and DrugAdministration (FDA) is announcing itsdecision to authorize the use, on foodlabels and in food labeling, of healthclaims on the association betweensoluble fiber from whole oats and areduced risk of coronary heart disease(CHD). Based on its review of evidencesubmitted with comments to theproposal, as well as of the evidencedescribed in the proposal, the agencyhas concluded that the type of solublefiber found in whole oats, i.e., beta (β)-glucan soluble fiber, is primarilyresponsible for the association betweenconsumption of whole oats, includingoat bran, rolled oats, and whole oatflour, and an observed lowering of bloodcholesterol levels. The agency hasconcluded that, based on the totality ofthe scientific evidence, there issignificant scientific agreement amongqualified experts to support therelationship between soluble fiber inwhole oats and CHD. Therefore, FDAhas decided to make the subject of thehealth claim ‘‘soluble fiber from wholeoats’’ and has concluded that claims onfoods relating the onsumption of solublefiber from whole oats to reduced risk ofheart disease are justified. FDA isannouncing this action in response to apetition filed by the Quaker OatsCompany (the petitioner).DATES: The regulation is effectiveJanuary 23, 1997. The Director of theOffice of the Federal Register approvesthe incorporation by reference inaccordance with 5 U.S.C. 552(a) and 1CFR part 51 of a certain publication in21 CFR 101.81(c)(2)(ii)(A), effectiveJanuary 23, 1997.FOR FURTHER INFORMATION CONTACT:Joyce J. Saltsman, Center for Food Safetyand Applied Nutrition (HFS–165), Foodand Drug Administration, 200 C St. SW.,Washington, DC 20204, 202–205–5916.SUPPLEMENTARY INFORMATION

I. Background

In the Federal Register of January 4,1996 (61 FR 296), the agency proposed

to authorize the use, on food labels andin food labeling, of health claims on theassociation between oat bran andoatmeal and reduced risk of CHD. Theproposed rule was issued in response toa petition filed under section403(r)(3)(B)(i) of the Federal Food, Drug,and Cosmetic Act (the act) (21 U.S.C.343(r)(3)(B)(i)). Section 403(r)(3)(B)(i) ofthe act states that the Secretary ofHealth and Human Services (and, bydelegation, FDA) shall promulgateregulations authorizing health claimsonly if he or she determines, based onthe totality of publicly availablescientific evidence (including evidencefrom well-designed studies conductedin a manner which is consistent withgenerally recognized scientificprocedures and principles), that there issignificant scientific agreement, amongexperts qualified by scientific trainingand experience to evaluate such claims,that the claim is supported by suchevidence (see also § 101.14(c)).

FDA considered the relevant scientificstudies and data presented in thepetition as part of its review of thescientific literature on oat bran andoatmeal, i.e., rolled oats, and heartdisease. The agency summarized thisevidence in the proposed rule (61 FR296).

The proposed rule includedqualifying and disqualifying criteria forthe purpose of identifying foods eligibleto bear the proposed health claim. Theproposed qualifying criteria were that afood provide 13 grams (g) of oat bran or20 g of oatmeal, and that the oat branand oatmeal contain, withoutfortification, at least 1 g of β-glucansoluble fiber. The proposal alsospecified mandatory content and labelinformation for health claim statementsand provided model health claims.

As part of the requirements for theclaim, the agency proposed to allow ashortened version of the claimdescribing the relationship betweendiets high in oat bran and oatmeal andrisk of heart disease that included areferral statement to the location of thefull claim. The proposed version of thefull claim described the relationshipbetween diets low in saturated fat andcholesterol and high in oat bran andoatmeal and heart disease. FDArequested data on whether permitting ashortened claim will affect whetherconsumers will also read the full claim.

The agency also proposed to make thephrase ‘‘depends on many factors’’optional information. The agency agreedwith the petitioner’s arguments that,based on an ever increasing backgroundof health information made availablethrough various media, consumersalready understand that foods are not

drugs, and that health enhancementdepends not only on consumption of aparticular food but also on other dietarypractices, exercise, heredity, lifestyle,and a host of other factors. The agencyalso agreed with the petitioner that therequirement that the claim use the term‘‘may’’ or ‘‘might’’ to relate the ability ofoat bran or oatmeal to reduce the risk ofheart disease is intended to reflect themultifactorial nature of the disease. Theagency requested written comments onthe proposed rule, including commentson the agency’s tentative decision tomake the phrase ‘‘depends on manyfactors’’ optional information.

II. Summary of Comments and theAgency’s Responses

In response to the proposal, theagency received approximately 1,450letters, each containing one or morecomments, from consumers,professional organizations, governmentagencies, industry, trade associations,and health care professionals.

The majority of the comments that theagency received agreed with one ormore provisions of the proposed rulewithout providing grounds for thissupport other than those provided byFDA in the preamble to the proposal.Many of these comments also requestedmodification of one or more provisionsof the proposed rule. A few commentsdisagreed with the proposed rule andprovided specific support for theirpositions. The agency has summarizedand addressed the relevant issues raisedin all comments in the sections of thisdocument that follow.

A. Food Substance Associated withReduced Risk of CHD

Health claims have two essentialelements: a food substance and a diseaseor health-related condition (§ 101.14).The agency proposed to authorize ahealth claim that diets high in oat branand oatmeal and low in saturated fatand cholesterol may reduce the risk ofCHD. Further, in the proposal, theagency tentatively agreed with thepetitioner’s position that, while currentresearch may not demonstrate that β-glucan soluble fiber is the onlycomponent of oats that affects bloodtotal- and low density lipoprotein(LDL)-cholesterol levels, potentiallyreducing the risk of CHD, β-glucansoluble fiber can serve as a marker forthe food substance that is the subject ofthe claim. Therefore, FDA tentativelyconcluded that the relationship is basedon a daily intake of not less than 40 goat bran or 60 g oatmeal, withoutfortification, that provide 3 g or moreper day β-glucan soluble fiber. Thedisease element of the claim is CHD, as

3585Federal Register / Vol. 62, No. 15, Thursday, January 23, 1997 / Rules and Regulations

assessed by changes in serum total- andLDL-cholesterol levels in response tothe consumption of specified levels ofoatmeal or oat bran. A number ofcomments dealt with what should bethe appropriate description of the foodsubstance that is part of the health claimrelationship.

1. Terminology(Comment 1)

Some comments stated that theproposed claim seemed to be limited tohot cereals because the agency used theterm ‘‘oatmeal’’ to describe one of thequalifying foods. A few commentssuggested that the agencyinappropriately used the term‘‘oatmeal’’ for the more technicallycorrect term ‘‘rolled oats,’’ the dry formof the food before cooking or processing.

The agency did not intend to limit theproposed claim to hot cereals. Assuggested by the comments, the agencywas using the term ‘‘oatmeal’’ to besynonymous with the term ‘‘rolledoats,’’ i.e., the dry oat product.

Likewise, the agency did not intendthat use of the terms ‘‘oatmeal’’ and ‘‘oatbran’’ would mean that only hot, cookedcereals could bear the claim. Theproposed claim was intended todescribe the relationship between oatbran and rolled oats which can be usedas single ingredients, such as in hot orready-to-eat cereals, or as components ofother foods that are served either hot orcold. Under the proposal, any oatproduct meeting the eligibilityrequirements for the claim could bearthe claim. Because the term ‘‘rolledoats’’ is the technical term morecommonly used to describe the dry formof the food, the agency has replaced theterm ‘‘oatmeal’’ with ‘‘rolled oats’’throughout this final rule.

2. Component of Oat Bran and RolledOats Responsible for the Effect(Comment 2)

Some comments stated that theproposed claim inappropriately focusedon oat bran and rolled oats as providingan effect on CHD risk. These commentssuggested that it was the type of solublefiber in oat products, specifically β-glucan, that was the primary componentresponsible for the relationship betweenthe oat products and CHD. FDA hadnoted in its proposal that β-glucansoluble fiber was closely associated withthe observed effect, but at the time, theagency tentatively concluded that β-glucan soluble fiber served as a markerfor the food with potential to reduce therisk of CHD. Comments offered supportfor the view that β-glucan soluble fiberis more than just a marker in whole oatsby referencing studies that

demonstrated effects of β-glucanindependent of the food. Thesecomments cited references in FDA’sproposed rule (Refs. 12, 15, 33, 35, 38)and also provided additional references(Refs. 60 through 74) in support of theirargument. According to thesecomments, this evidence suggests that β-glucan soluble fiber can provide anindependent and meaningful effect and,in turn, supports that β-glucan is theprimary component in whole oatproducts responsible for that effect onCHD risk factors. A few comments alsonoted that studies suggest a dose-response relationship between β-glucansoluble fiber and the effect on bloodtotal- and LDL-cholesterol levelsbecause the degree of effect is linearlyrelated to the amount of β-glucanconsumed (Ref. 66). Conversely, somecomments supported the agency’sproposed treatment of β-glucan solublefiber as a marker for identifying a usefulfood product rather than as the activecomponent.

In addition, several comments citedreferences to demonstrate thatprocessing of oat products in ways thatalter the physical structure of the β-glucan soluble fiber component (e.g.,alter molecular structure and henceviscosity) results in a loss of effect onblood total- and LDL-cholesterol levels(Refs. 63 through 64). Several commentsalso noted that FDA’s proposal cited theTorrenen et al. study (Ref. 38), showingthat a special processing technique,when used with oat bran concentrate,appeared to reduce its effect on serumlipid levels. These comments cited theloss of effect with changes in thephysical structure of β-glucan solublefiber as evidence that there is a directeffect attributable to the presence of β-glucan soluble fiber, and that this effectis dependent not only on the chemicalcharacteristics of the β-glucan solublefiber but also on the retention ofimportant physical characteristics suchas viscosity.

Moreover, several comments citedreferences to show that it is the presenceof a highly viscous soluble fiber in theintestinal tract that is determinative ofthe desired effect on CHD risk factors,and that, holding all other factorsconstant, changes in viscosity ofintestinal contents alone result insignificant effects on blood total- andLDL-cholesterol levels (Refs. 72 through74). These comments, which weresubmitted by fiber experts, suggestedthat the ability of β-glucan soluble fiberto produce viscosity in the intestinalcontents, while not the only mechanismby which soluble fibers have an effecton CHD risk, can be a clinicallymeaningful and independent factor

affecting CHD risk. Other commentscited studies that showed that oat β-glucan soluble fiber has viscousproperties that are responsible forphysiological effects on the glycemicresponse (i.e., changes in blood sugarlevels following ingestion of foods) andsuggested that the same viscousproperties may also play a role inaffecting blood total cholesterol levels(Refs. 60 and 69).

On the other hand, some commentsstated that, while β-glucan soluble fiberis an important factor, othercomponents in the oat products,including certain chemicalcharacteristics and the tocotrienols thatare part of the lipid fraction of wholeoats, also contribute to the associationwith CHD risk reduction. Thus,according to these comments, specifyingrequirements for only β-glucan solublefiber in the proposed regulation is notappropriate.

The agency has carefully reviewed thecomments and evidence submitted onthe issue of the significance of the β-glucan in the oat products and ispersuaded that β-glucan soluble fiber isthe primary, but not the only,component in whole oats that affectsserum lipids. β-glucan thus plays asignificant role in the relationshipbetween whole grain oats and the riskof CHD. The agency reached thisconclusion based on evidence that thereis a dose response between the level ofβ-glucan soluble fiber from whole oatsand the level of reduction in blood total-and LDL-cholesterol (Refs. 15 and 33),and that intakes of β-glucan solublefiber at or above 3 g per day were moreeffective in lowering serum lipids thanlower intake levels. These results areconsistent with the results of theindividual human studies reviewed inthe proposal.

FDA, therefore, concludes that it isappropriate to change the foodsubstance that is the subject of thisauthorization for claims from oat branand rolled oats to β-glucan soluble fiberfrom whole oats.

3. Eligibility of Whole Oat Flour(Comment 3)

A number of comments suggested thatproducts containing whole oat flourmade from 100 percent oat groatsshould be eligible to bear the healthclaim. The reasons given, somesupported by data, included: (a)Evidence suggests that β-glucan solublefiber is the primary contributor to theobserved effect of oat bran and rolledoats, and whole oat flour contains β-glucan; (b) whole oat flour is derivedfrom the same starting material as rolledoats (i.e., whole oat groats) and, other


than the smaller particle size of wholeoat flour, possesses a chemical andphysical composition virtually identicalto rolled oats (Ref. 57); (c) animalstudies demonstrate that, like the β-glucan soluble fiber from oat bran androlled oats, whole oat flour β-glucansoluble fiber retains important physicalcharacteristics during digestion (Ref.68); and (d) data from a human study(Ref. 70) and several animal studies(Refs. 57, 66, and 71) show a positiveeffect of ready-to-eat cereals made withwhole oat flour on risk factors for CHD.One comment submitted a recent,unpublished human clinical trial inwhich a ready-to-eat cereal made fromwhole oat flour was used as the testproduct (Ref. 70). Results showed thatconsumption of the cereal had asignificant effect on blood total- andLDL-cholesterol levels as compared tothe placebo cereal.

In considering the commentsconcerning the inclusion of whole oatflour in this rulemaking, the agency hasreviewed the evidence referenced inthese comments, including theadditional data submitted. The agencynoted the similarity of whole oat flourto rolled oats in terms of chemical andphysical properties and type ofprocessing. After careful considerationof the scientific evidence and the natureof the proposed health claim, FDA hasconcluded that products made withwhole oat flour from 100 percent oatgroats should be eligible to bear a claim.

FDA originally proposed the healthclaim that is the subject of thisrulemaking for oat bran and oatmeal (i.e,rolled oats) because this was the claimrequested in the petition that began thisproceeding, and because the submittedevidence supported the relationshipbetween the consumption of these foodsand a reduced risk of CHD. However,the agency did not conclude in itsproposal that the effect was uniquelythat of oat bran and rolled oats, butrather that the evidence submitted bythe petitioner supported therelationship for these foods. Thecomments argued, and pointed toevidence in the record as well as toevidence that they submitted thatsupported their claim, that whole oatflour has a similar composition, and hadsimilar effects on blood cholesterollevels, as oat bran and rolled oats. Theyargued that, given these facts, it was thelogical outgrowth of the proposal toenlarge the substances that could be thesubject of a claim as part of this finalrule to include whole oat flour.

FDA notes that one study submittedwith a comment examined the effect ofwhole oat flour-based cereal on serumlipids in mildly hypercholesterolemic

subjects. Forty-three patients, aged 27 to68 years, with mild to moderatehypercholesterolemia participated inthis placebo-controlled study. The studyconsisted of three parts: a 4-week run-in on a Step 1 diet (i.e., a diet with lessthan 30 percent calories from fat, lessthan 10 percent calories from saturatedfat, and less than 300 mg cholesterol), a2-week baseline, and a 4-week treatmentperiod. During the treatment period,subjects in the oat group continued toadhere to the Step I diet and consumedone prepackaged portion (1.5 oz.) ofcereal twice a day, resulting in anestimated total daily intake of 3 g β-glucan from whole oat flour. Bodyweights were maintained at a constantlevel throughout the treatment period.Although there were differences in total-, high density lipoprotein (HDL)-, andLDL-cholesterol levels between thegroups at baseline, the authors used ananalysis of covariance to adjust data toa common baseline.

The results of the study showed thatsubjects consuming the whole grain oatcereal experienced a significantdecrease in total cholesterol (4.4 percentor 10.0 milligrams (mg)/deciliter (dL))and LDL-cholesterol (4.9 percent or 7.8mg/dL), and no significant difference inHDL-cholesterol, compared to theplacebo group. These results areconsistent with the findings for oat branand rolled oats, i.e., positive effects onblood total- and LDL-cholesterol levelsin mildly hypercholesterolemic subjectsadhering to a diet low in saturated fatand cholesterol. Therefore, this study,along with evidence submitted bycomments showing compositionalsimilarities between whole oat flour androlled oats, provides sufficient evidencefor the agency to conclude that wholeoat flour has the same effects relative toreduced risk of CHD as do oat bran androlled oats. Further, there is evidencethat corroborates this conclusion that isprovided by animal studies (Ref. 68).These animal studies addressed theissue of retention of viscositycharacteristics during processing anddigestion. Because viscosity of intestinalcontents is known to be a critical factorin determining the ability of solublefibers to reduce the risk of CHD (Refs.56, 72, and 73), and because viscosity isknown to be affected by food processingprocedures or, following ingestion, bythe digestive system in ways that areunpredictable (Refs. 56 and 65),evidence to demonstrate that the β-glucan soluble fiber from whole oatflour retains the same level of viscosityin the digestive tract as does that fromrolled oats is crucial to the question of

whether whole oat flour can provide thesame benefits as rolled oats.

The animal studies cited by onecomment (Ref. 68) demonstrate thatthere is bioequivalence relative to theseimportant physical characteristicsbetween whole oat flour and rolled oats.When taken together, the availableevidence provides a basis forconcluding that it is appropriate tomake whole oat flour, as well as oatbran and rolled oats, the subject of theauthorized substance-diseaserelationship.

Therefore, for the purposes of§ 101.81, the term ‘‘whole oats’’includes oat bran, rolled oats, andwhole oat flour. Changes to the codifiedsections of this rule to reflect theinclusion of whole oat flour arediscussed in section II.B. of thisdocument.

While FDA has added whole oat flouras a subject of the health claim in thisproceeding, it must caution that it hasdone so here only because of the closerelationship of whole oat flour to thesubstances that were the subject of theproposal and the very narrow incrementof evidence necessary to broaden theclaim to include this substance. Giventhe very tight timeframes that areestablished by the statute, and theagency’s interest in ensuring thatscientifically valid claims areauthorized as quickly as possible, theagency cautions that it will notfrequently be in a position to authorizeclaims about additional substancesduring the comment period. Thus,interested people would be welladvised, if they are aware of a substancethat should be the subject of a healthclaim, to petition for authorization for aclaim about the substance rather thanrelying on the comment process toachieve that end.

4. β-glucan Soluble Fiber From OtherSources

(Comment 4)Some comments, in noting the

evidence to suggest that β-glucansoluble fiber is the component in oatbran and rolled oats responsible fortheir effect, further noted that theevidence suggests that β-glucan solublefiber from other sources, such as barleyand oat gums, affects the risk of CHD inthe same way as β-glucan from the oatbran and rolled oats (Refs. 61 through65, and 67). These comments requestedthat the proposed health claim beextended to any food productcontaining a specified level of β-glucansoluble fiber from any source includingprocessed or novel sources of β-glucansoluble fiber.


Several comments suggested that onetype of evidence to demonstrate that β-glucan soluble fiber from other foodsources can affect the risk of CHD is thestudies showing similar effects on bloodtotal- and LDL-cholesterol levels amongdifferent β-glucan containing foods,including barley and oats (Refs. 61through 65, and 67). Another commentcited a study showing that variability ineffects on serum cholesterol levelsamong different barley cultivars isassociated with differences in amountsof β-glucan soluble fiber (Ref. 64).

While acknowledging that there isevidence suggesting that consumptionof β-glucan soluble fiber from a varietyof food sources may help to lower bloodtotal- and LDL-cholesterol levels, andthus reduce the risk of CHD, the agencydisagrees that the claim should beextended at this time to all foods thatcontain a specified amount of β-glucansoluble from any source. The agency’sdecision to limit eligibility to bear aclaim to oat bran, rolled oats, and wholeoat flour is based on severalconsiderations.

First, the proposed subject of thisrulemaking was oatmeal and oat branand their effect on the risk of CHD. FDAhas examined in detail only theevidence for these oat products andwhole oat flour. Other food sources ofβ-glucan soluble fiber (oat and non-oatsources) have not been carefullyreviewed by FDA, nor has the totality ofthe evidence on these other sources ofthe fiber been submitted to the agencyfor review. Thus, the basis for includinga wider range of food sources of β-glucan beyond whole oats in theregulation authorizing health claims isnot presented by the administrativerecord, and consideration of these othersources is beyond the scope of thisrulemaking.

Nonetheless, the agency recognizesthat it is likely that consumption ofother sources of β-glucan soluble fiberin addition to those that are the subjectof this rulemaking will affect bloodcholesterol levels. For this reason, andfor reasons described elsewhere in thisdocument in response to relatedcomments about other soluble fibers,FDA is adopting a final rule that isstructured so that it can be amended toestablish a framework that willaccommodate claims for other sourcesand types of soluble fibers and the riskof CHD.

Second, there currently are nogenerally accepted or validated criteriafor predicting which sources orprocessed forms of β-glucan solublefiber, beyond oat bran, rolled oats, andwhole oat flour, are capable of reducingblood total- and LDL-cholesterol levels.

FDA, therefore, lacks criteria fordifferentiating among those sources thatprovide such effects and those that donot. This lack of evidence is of concernto the agency because, as discussedpreviously, certain types of processingmay decrease the ability of the fiber tohave the desired effect for reasons thatare unpredictable and that vary fromsource to source. At the same time, it isknown that certain physicalcharacteristics related to the fiber’sability to maintain the viscosity of theintestinal contents must be present.However, the extent to which thiscapacity can be influenced by differentfood sources or by processing is unclear.Validated and accepted in vitro oranimal methods for identifying thischaracteristic are not part of theadministrative record for thisrulemaking.

Human clinical trials can be used toresolve these issues. However, in theabsence of clinical or other appropriatetypes of data in the administrativerecord, assumptions about thebioequivalence of all sources of β-glucansoluble fiber cannot be made at thistime.

In authorizing the claim for whole oatflour as a result of comments to theproposal, FDA is relying on in vivo(animal) studies as evidence of thebioequivalence of whole oat flourrelative to rolled oats. The agency feelscomfortable in doing so because there isa human study to demonstrate theeffectiveness of whole oat flour inreducing the risk of CHD, as well asinformation on the similarity incomposition of whole oat flour to rolledoats. It is unclear to what extent such invivo data from animal studies can berelied upon in the absence ofcorroborating human data. FDA willmake decisions on this issue based onthe totality of the available evidence.Thus, future petitions for other sourcesof β-glucan soluble fiber to be added assubjects of a health claim, which theagency anticipates receiving, shouldspecifically address the appropriateness,the protocol used to develop, and theinterpretation of, in vivo data fromanimal studies in demonstratingbioequivalence among soluble fibers.

5. Claims for Other Soluble Fibers(Comment 5)

Some comments stated that byproposing the oat bran and rolled oatshealth claim, the agency hasacknowledged that soluble fibersthemselves are an important functionalcomponent that affect serum lipid levelsand thereby reduce the risk of CHD.These comments suggested that othersoluble fibers have been shown to have

the same effects as that of β-glucansoluble fiber from whole oats on the riskof CHD. One comment discussed theevidence for psyllium and its capacityto affect serum lipid levels and therebyreduce the risk of CHD. Thesecomments stated that, because othersoluble fibers and purified gums candemonstrate cholesterol-loweringeffects, the agency should authorize abroad claim for soluble fibers andreduced risk of CHD.

Several comments suggested thatconsumers would benefit from a solublefiber and CHD claim in that it would beconsistent with dietaryrecommendations to consume diets highin fiber and low in fat. However, someof the comments noted that differencesin the source and method of processingwhole oat β-glucan result in varied andunpredictable effects on the physicalcharacteristics of the fiber, and thatthese differences may apply to othertypes of soluble fibers as well. Thecomments stated that, therefore, a claimfor soluble fiber and heart diseaseshould only be extended to thosesoluble fibers that have beendemonstrated to reduce the risk factorsrelated to CHD.

Another comment noted that, from aregulatory standpoint, a single claim onthe relationship between certain solublefibers and heart disease would be moremanageable for the agency than wouldbe attempting to authorize individualhealth claims for all the differentsoluble fiber sources that might beeligible to bear a CHD claim. Thecomment explained that, as othersoluble fibers are shown to qualify tobear a soluble fiber/CHD claim, theregulation could be amended to includethe additional substance.

FDA agrees with the comments thatstated that there is evidence to suggestthat consumption of a number of solublefibers, in addition to β-glucan, affectblood total- and LDL-cholesterol levelsand thus affect the risk of CHD. Theagency reviewed evidence to this effectin evaluating the relationship betweentotal dietary fiber and CHD in the finalregulation published in the January 6,1993 Federal Register (58 FR 2552). Theagency noted, however, that there wassome evidence that soluble fiber fromdifferent foods has different effects, andthat the analytical measure of solublefiber may not be adequately predictiveof its physiological effects (58 FR 2552at 2562). Therefore, FDA encouragedmanufacturers to petition for a claim fortheir soluble fiber product if there wasevidence to demonstrate that theparticular soluble fiber-containingproduct is effective in lowering serumlipid levels (58 FR 2552 at 2562).


Further, FDA agrees that its decisionto authorize claims on the associationbetween oat bran, rolled oats, and wholeoat flour and CHD represents acceptancethat one type of soluble fiber, i.e., β-glucan soluble fiber from whole oats,has been adequately shownscientifically to have this effect.However, while the agency agrees withthe comments that there is considerablelikelihood that a similar showing will bemade for certain other soluble fibers,based on the record now before theagency, it cannot take the stepssuggested by the comments and broadenthis claim. As the agency explained inthe 1993 dietary fiber final rule, theeffect of individual soluble fibers needsto be documented on a case-by-casebasis. A concern about the ability ofparticular soluble fibers to affect CHDrisk was expressed in several commentsto the oat bran and oatmeal proposal. Asmentioned previously, those commentsstated that only soluble fibers that havebeen demonstrated to reduce serumlipids should qualify to bear a claim.The agency notes that a petition forsoluble fiber from psyllium and risk ofCHD is currently under consideration bythe agency.

As mentioned previously, in the 1993dietary fiber final rule, the agencyencouraged manufacturers to petitionfor a health claim if the manufacturercould present scientific evidence tosupport the relationship between itssoluble fiber product and risk of CHD(58 FR 2552 at 2567). By encouragingmanufacturers to petition for a morespecific health claim, the agencyimplied that it would consider a newclaim for those soluble fiber productsthat had been shown to affect the riskof CHD. However, the agency did notcommit to any particular course for howit would authorize health claims abouta specific fiber source should it findthem to be justified.

One way of doing so would be aregulation about each particularingredient source of soluble fiber. Thismodel is essentially the one that theagency utilized in the proposal. Analternative approach would be to adoptan umbrella regulation authorizing aclaim for diets containing soluble fiberfrom certain foods and CHD butauthorize the use of the claim forspecific food sources of soluble fiberonly when consumption of those foodshas been demonstrated to help reducethe risk of heart disease. FDA agreeswith comments that this alternativemechanism would provide flexibility,and that this flexibility may ultimatelyprovide efficiency. However, based onthe fact that it was not the agency’scharge, in responding to this petition to

review the totality of evidence fromother, non-oat sources of β-glucansoluble fiber or other types of solublefiber, the agency finds that it ispremature to authorize a broader claimfor ‘‘soluble fiber from certain foods.’’

The agency may, at some point,decide to amend § 101.81 to cover typesof soluble fiber other than β-glucan fromwhole oats. If a manufacturer candocument, through appropriate studies,that a soluble fiber product has an effecton blood total- and LDL-cholesterollevels, and thereby the product can beuseful in reducing the risk of CHD, themanufacturer may petition to amend§ 101.81 to include that type of solublefiber-containing product among thesubstances about which claims areauthorized. This case-by-case approachis necessary because, as discussed in theoat bran and oatmeal proposal, solublefiber is a family of very heterogeneoussubstances that vary greatly in theireffect on the risk of CHD (61 FR 296).

In summary, in its proposal, theagency was responding to a specificpetition to authorize claims about therelationship between oat bran and rolledoats and the reduced risk of CHD. Inresponse to comments, however, FDA isnow authorizing claims that describethe relationship between consumptionof only a specific type of soluble fiber,β-glucan from whole oats, and reducedrisk of CHD.

As suggested by comments, on-goingresearch efforts are likely to buildsupport for the relationship betweenCHD and consumption of other solublefibers not addressed in this rulemaking.While the narrow focus of thisrulemaking, and limitations on agencytime and resources, preclude review ofall such soluble fibers as part of thisrulemaking, FDA will consideramending § 101.81 to establish aframework that will allow the agency toreadily add the list of soluble fibers thatcan be the subject of a claim, as theevidence warrants.

Therefore, in this final rule, FDA hasrevised the title of § 101.81 to read:‘‘Health claims; soluble fiber fromwhole oats and coronary heart disease.’’For this health claim, the statement‘‘soluble fiber from whole oats’’ isintended to mean β-glucan soluble fiberfrom whole oats. Based on informationprovided in the petition and in somecomments, the soluble fiber content ofwhole oats is predominantly(approximately 87 percent or more) β-glucan (Ref. 1, p. 22). Thus, the totalsoluble fiber content of whole oatssignificantly reflects the β-glucanpresent. Moreover, the term ‘‘solublefiber’’ is more familiar to consumersthan ‘‘ β-glucan’’ because soluble fiber

can be used on the nutrition label under§ 101.9(c)(6)(i)(A). β-glucan is atechnical term that presumably is notwidely understood.

Further, the agency has modified theregulation to reflect its decision todescribe specifically the food substancethat is the focus of the claim and to listthe sources of β-glucan soluble fiber thathave been shown to affect the risk ofCHD. Thus, the agency has replaced thediscussion in proposed section (c)(2)(ii)on the presentation of the claim with anew discussion, ‘‘Nature of thesubstance: Eligible sources of solublefiber.’’ This provision describes thosesources of β-glucan soluble fiber thatqualify for this claim. This section willbe discussed in detail in section II.B., ofthis document.

Given the change in focus from oatbran and rolled oats to soluble fiberfrom whole oats, the agency is revisingseveral sections of the proposedregulation. First, the words ‘‘diets highin oatmeal and oat bran’’ has beendeleted from § 101.81(c)(2)(i) andreference to soluble fiber from wholeoats is being added, so that§ 101.81(c)(2)(i) will read, relevant part,‘‘diets low in saturated fat andcholesterol that include soluble fiberfrom whole oats.’’ The agency notes thatthe statement ‘‘diets low in saturated fatand cholesterol and high in soluble fiberfrom * * *’’ cannot be used at this timebecause the term ‘‘high’’ and itssynonyms have been defined under§ 101.54(b) as meaning that the foodcontains 20 percent or more of the DailyReference Value (DRV) per referenceamount customarily consumed (RACC)for a particular substance. There is noDRV for soluble fiber. While the agencyrecognizes that it would be helpful toencourage consumption of a specificamount of soluble fiber from whole oats,it cannot do so in the absence of a DRVfor this nutrient. Therefore, the agencyis wording § 101.81(c)(2)(i) to state thatthe diet ‘‘include’’ soluble fiber fromwhole oats, until such time that a DRVfor soluble fiber is established. Theagency intends to propose to establish aDRV for soluble fiber, and, once thatrulemaking is completed, assuming itresults in a DRV, it plans to revisit therequirements in § 101.81 and proposeappropriate changes in the requirementsfor the wording of the claim. Othersections of the regulation that areaffected by these changes include§ 101.81(a), (b), and (c)(2)(i)(D).Additionally, FDA has deleted thephrase ‘‘oat bran and oatmeal’’ inparagraphs (c)(2)(i)(A), (c)(2)(i)(E),(d)(2), (d)(3), and (e) and replaced itwith the statement ‘‘diets low in


saturated fat and cholesterol thatinclude soluble fiber from whole oats.’’

Other changes to the proposedregulation, in order of appearance,include the following: the secondsentence of proposed § 101.81(a)(2)states ‘‘* * * These populations alsotend to have dietary patterns that are notonly low in total fat, especiallysaturated fat and cholesterol, but arealso relatively high in fiber-containingfruits, vegetables, and grain products,such as oatmeal and oat bran.’’ Theagency is revising the last part of thatsentence to read ‘‘* * * but are alsorelatively high in fiber-containing fruits,vegetables, and grain products, such aswhole oat products.’’

Proposed § 101.81(a)(3) described oatbran and rolled oats as good sources ofsoluble fiber and stated that scientificevidence demonstrates that theseproducts are associated with reducedblood total- and LDL-cholesterol levels.In light of the changes in this final ruleintended to focus on the relationshipbetween soluble fiber from whole oatsand CHD, FDA has deleted the firstsentence in proposed § 101.81(a)(3) andrevised the second sentence to state,‘‘Scientific evidence demonstrates thatdiets low in saturated fat andcholesterol may reduce the risk of CHD.Other evidence demonstrates that theaddition of soluble fiber from wholeoats to a diet that is low in saturated fatand cholesterol may also help to reducethe risk of CHD.’’ Again, the agencynotes that it realizes that informationabout the amount of soluble fiber fromwhole oats to consume would be helpfulinformation for consumers, but until aDRV is established, such informationcannot be provided. The agency hasconcluded that the statements inparagraph (a)(3) accurately represent therelationship between diets low insaturated fat and cholesterol and CHDand between soluble fiber from wholeoats and CHD.

Proposed § 101.81(c)(2)(i)(C)described what the claim could state interms of a diet high in oat bran andoatmeal (paragraph (c)(2)(i)(C)(1)), andthat the effect of a dietary intake of oatbran and oatmeal on risk of CHD wasparticularly evident when consumed aspart of a diet low in saturated fat andcholesterol (paragraph (c)(2)(i)(C)(2)). Inlight of the change to a claim for solublefiber from whole oats and the risk ofCHD, FDA is deleting paragraph(c)(2)(i)(C) and adding two newparagraphs, (c)(2)(i)(C) and (D). Thesenew paragraphs list the terms for use inspecifying the soluble fiber and fatcomponents of the claim (paragraphs(c)(2)(i)(C) and (D), respectively) and arediscussed further in this section of this

document. With the addition ofparagraphs (c)(2)(i)(C) and (D), FDA hasredesignated proposed paragraphs(c)(2)(i)(D) and (E) as paragraphs(c)(2)(i)(E) and (F), respectively.

Section 101.81(d) contains optionalinformation that may be included in theclaim. In paragraph (d)(4) of theproposal, the agency proposed to permitmanufacturers the option of describingoat bran and oatmeal as good sources ofsoluble fiber. For the reason givenpreviously for the revision in paragraph(a)(3), the agency is deleting proposedparagraph (d)(4). FDA is replacing itwith new paragraph (d)(4), which states‘‘The claim may specify the name of theeligible soluble fiber.’’ Thus, themanufacturer may refer to ‘‘beta-glucansoluble fiber’’ in the health claim. Theuse of a specific soluble fiber name isappropriate as optional information butis likely too technical to be of interestto many consumers, and thus to requireits inclusion in the claim would becontrary to the agency’s desire toprovide for claims that are simple,concise, and easy for consumers tounderstand. The rationale for thischange is discussed in more detailunder section II.D.4. of this document.

6. Amounts of β-glucan Soluble FiberUseful in Reducing the Risks of CHD(Comment 6)

One comment reexamined the datafrom the Davidson et al., study (Ref. 15)concerning the level of β-glucanconsumption per day that is needed toaffect blood total cholesterol levels andthereby reduce the risk of CHD. Theresults of the Davidson et al. studysuggested a dose-response relationshipbetween the level of β-glucan intake andthe amount of change in blood totalcholesterol. The petitioner presented thedata from this study in a linearregression model to show the change inblood total cholesterol as a function ofsoluble fiber intake (Ref. 1, p. 26). Thelinear regression model showed that anestimated intake of 3 g per day solublefiber (i.e., β-glucan soluble fiber) isassociated with a reduction in bloodtotal cholesterol of about 5 percent. Thepetitioner submitted the results of itsanalysis as support for the conclusionthat 3 g per day of β-glucan soluble fiberis useful in affecting risks for CHD.

The comment stated that a nonlinearmodel fits the data better than thesimple linear regression model. Thecomment stated that, based on thenonlinear model, 2.5 g/d β-glucansoluble fiber is necessary to lower bloodtotal cholesterol 5 percent.

The agency does not agree that thereis sufficient evidence to conclude that2.5 g per day is more appropriate than

3 g per day, or that the nonlinear modelis a better statistical approach than isthe linear model. The data availablefrom the Davidson et al. study areinsufficient to determine superiority ofthe linear model compared to thecurvilinear model. The results of thestudies that showed an effect of solublefiber from oat bran, rolled oats, andwhole oat flour, and the results of themeta-analysis demonstrate that intakesof 3 g or more β-glucan are more likelyto be effective. Thus, to use 2.5 g wouldbe speculative, at best, and notsupported by actual data. In contrast,the use of 3 g per day is. Therefore, theagency has concluded that, withoutfurther data, there is no justification forconcluding that 2.5 g per day is a moreappropriate estimate of the amount of β-glucan useful in reducing the risk ofCHD than is 3 g per day.

7. Issues Related to a Food-specificHealth Claim(Comment 7)

Some comments stated that theproposed claim for oat bran and oatmealshould not be authorized because it willportray specific foods, i.e., oat products,as ‘‘magic bullets.’’ The commentssuggested that the claim would misleadconsumers in that it creates theimpression that consumption of certainfoods (oat bran and oatmeal) alone willprotect against CHD, and in that itwould not convey the concept that it isdiets, not foods, that are important inrisk reduction. The comments suggestedthat, as a result, consumers will bediscouraged from making otherimportant, and perhaps more effective,life-style changes to help reduce theirrisk of CHD. Some comments suggestedthat including reference to the diet inthe claim will help prevent oat bran androlled oats from appearing as ‘‘magicbullets.’’ However, there were manycomments that stated that consumersare aware that no one food is a ‘‘magicbullet’’ in reducing the risk of disease.

Other comments stated that a claimfor an individual food, such as thatproposed for oat bran and oatmeal, isappropriate and would also be helpfulto consumers because it would identifyproducts that contribute to healthydietary practices. A few commentsexpressed concern that consumerswould inappropriately extrapolate fromthe effects of consuming oat bran androlled oats set out in the health claimand assume a similar effect for all foodscontaining oat products, whether thefoods are consistent with a total dietarypattern for risk reduction of heartdisease or not. The comments likenedthis situation to the one that developedbefore the passage of the 1990


amendments, when some high-fiberfood products bore a message from theNational Cancer Institute suggesting thatthere was a relationship between fiberand risk of cancer. There was aproliferation of ingredient claims onproducts with trivial amounts of fiber.

A few comments stated that theproposed claim for oat bran and oatmealshould be folded into the authorizedclaim for fruits, vegetables, and grainproducts and heart disease (i.e.,§ 101.77). The comments stated that§ 101.77 could be modified to permit theterms ‘‘oat bran’’ and ‘‘oatmeal’’ in thehealth claim. The comments explainedthat § 101.77 already establishes thespecific requirements for foods thatcontain soluble fiber. The commentsadded that this would help preventindividual foods, such as rolled oats,from appearing to be ‘‘magic bullets.’’

The agency disagrees with thecomments that stated that it shouldincorporate this health claim into theauthorization for claims on therelationship between fruits, vegetables,and grain products and CHD (§ 101.77).Under § 101.77, soluble fiber is a markerfor identifying useful foods, but nospecific effect is attributed to the fiber.The claim that FDA is authorizing inthis proceeding is based on thedemonstrated effect of a certain type ofsoluble fiber (β-glucan soluble fiber)from a specific food source (whole oats).Therefore, the eligibility criteria and thescientific criteria set forth in § 101.81are different from those set out in§ 101.77. The agency concludes,consequently, that the two claimsshould not be combined.

The agency notes that, in this finalrule, the relationship of whole oats toreduced risk of heart disease is beingdescribed in terms of the total diet. Asdiscussed in more detail in response tocomment 13 in section II.D.1. of thisdocument, diets low in saturated fat andcholesterol are considered by expertgroups to be the most effective dietarymeans of reducing heart disease risk(Ref. 5). While soluble fiber from wholeoats can contribute to this effect, its roleis generally recognized as being ofsmaller magnitude (Refs. 4 and 5).Describing the relationship of a totaldiet low in saturated fat and cholesterolthat includes whole oats to the risk ofCHD will prevent the oat-containingfoods eligible to bear the claim fromappearing to be ‘‘magic bullets.’’

B. Specifications for the Nature of theFood Substance Eligible to Bear theClaim

In the proposal, the food substancesthat were the subject of the claim wereoat bran and rolled oats and the

products that contain them. The agencystated that the β-glucan soluble fibercontent of these products is anappropriate marker for identifying thecholesterol-reducing potential of theseproducts (61 FR 296 at 308) andestablished levels for β-glucan in foodsthat would qualify for the claim.

Based on its review of the comments,however, the agency has concluded thatβ-glucan is the primary component ofwhole oats that is responsible for theeffect that consuming these foods has onthe risk of CHD. Therefore, the agencyhas concluded that the substance-disease relationship that isappropriately the subject of a claim isthat between β-glucan soluble fiber fromwhole oats and CHD. To reflect thisjudgment, the agency has modified theauthorizing regulation to specify thesources of β-glucan that areappropriately the subject of a claim.

Section § 101.81(c)(2)(ii)(A) lists β-glucan soluble fiber and the whole oatsources of this substance. It also sets outthe official Association of OfficialAnalytical Chemists International(AOAC) method to be used to determinethe β-glucan content of the food.Paragraph (c)(2)(ii)(A) states that theeligible source of β-glucan soluble fiberis from the whole oat sources specifiedin paragraphs (c)(2)(ii)(A)(1) through (3).Paragraph (c)(2)(ii)(A)(1) lists oat bran,paragraph (c)(2)(ii)(A)(2) lists rolledoats, and paragraph (c)(2)(ii)(A)(3) listswhole oat flour. The totality of theevidence establishes that consumptionof these three sources of β-glucansoluble fiber as part of a diet that is lowin saturated fat and cholesterol canreduce blood lipids and thus helpreduce the risk of CHD.

1. Definition of Whole Oat ProductsIn the proposal, the agency set out a

specific qualifying level of oat bran orrolled oats and β-glucan soluble fiber,i.e., 13 g of oat bran or 20 g or rolledoats that provide 1 g of β-glucan solublefiber per RACC.(Comment 8)

Some comments noted that thevariability in β-glucan soluble fibercontent of oat products may affectwhether these products qualify to bearthis claim. Several comments stated thatto ensure that products contain theappropriate amount of β-glucan solublefiber, FDA needs to define oat branbecause β-glucan soluble fiber levelsvary among cultivars. Most of thesecomments encouraged adoption of theexisting American Association of CerealChemists’ (AACC) definition for oatbran.

The comments pointed out that theAACC definition requires that for a

product to be oat bran, it must have atotal β-glucan content of at least 5.5percent (dry weight basis (dwb)). As aresult of processing oat groats to oatbran, β-glucan soluble fiber is moreconcentrated. Therefore, oat brancontains higher levels of this solublefiber than rolled oats or oat flour.

Some comments explained that thelevel of β-glucan soluble fiber in rolledoats and oat flour more closelyapproximates the level of β-glucan inoat groats. This level may range from 3to 5 percent, depending on the specificoat cultivar and on seasonal variationbetween crop years. One commentstated that the AACC had not adopteda definition of rolled oats because theproduct, oatmeal, has been on themarket for over 100 years and is knownto be a product made by rolling wholegrain oats that have had 100 percent ofthe hull removed.

The agency is persuaded by thecomments that, based on the variabilityin β-glucan soluble fiber content of oatcultivars, a definition of the eligiblewhole oat products that includes the β-glucan soluble fiber content will helpensure that a source of whole oats thatbears a claim is consistent with thoseshown in clinical studies to lower bloodlipids. In its review of studies in theproposal (61 FR 296 at 314), FDAobserved that the results of most of thestudies that failed to show a significanteffect of oat bran on serum lipids usedoat bran that provided less than 5.5percent (dwb) of β-glucan soluble fiber(Refs. 13, 26, 27, 28, 36, and 41). Forexample, New Zealand oat bran wasdescribed to contain β-glucan solublefiber within a range of 3.7 to 4.4 percent(Ref. 26). In the studies that showed aneffect of oat bran on serum lipid levels,the oat bran provided more than 5.5percent (the exact amount cannot bedetermined in all studies) β-glucan(Refs. 8, 11, 12, 15, 17, 20, 23 through25, 29, 35, 39, and 42).

Thus, the agency agrees that adoptionof the AACC definition of oat bran (Ref.52), which requires that a product havea total β-glucan content of at least 5.5percent (dwb) to qualify as oat bran, isappropriate. This definition wasdeveloped to respond to the confusionamong oat processors, as well as othersin industry and among homeconsumers, about a uniform identity ofthe product that was receivingwidespread publicity with regards to itshealth benefits. Oat bran cannot becleanly separated from the endospermof oat groats (Ref. 52). Consequently, oatbran contains some flour and is rich inβ-glucan soluble fiber, and debrannedoat flour contains some bran butcontains significantly less β-glucan.


Consequently, it became essential thatthe industry define what could be called‘‘oat bran.’’ It was the ‘‘rich’’ oat branthat has been used in clinical trials andthat has been shown to lower serumlipids.

Therefore, FDA is adding the AACCdefinition of oat bran (Ref. 52) to§ 101.81(c)(2)(ii)(A)(1). It states that oatbran is produced by grinding clean oatgroats or rolled oats and separating theresulting oat flour by suitable meansinto fractions, such that the oat branfraction is not more than 50 percent ofthe original starting material andprovides at least 5.5 percent (dwb) β-glucan soluble fiber and a total dietaryfiber content of 16 percent (dwb), andsuch that at least one-third of the totaldietary fiber is soluble fiber.

As discussed previously, there havebeen no formally accepted definitions ofthe terms rolled oats and whole oatflour. However, based on data providedin comments from fiber experts (Refs. 55through 58), data from the U.S.Department of Agriculture NationalNutrient Data Base (Ref. 75), and dataprovided in the petition (Ref. 1, p. 22and Appendix II), the agency isproviding general definitions for theseterms that reflect the type of whole oatproducts used in clinical trials. As partof each definition, the agency isspecifying the β-glucan soluble fiber andtotal dietary fiber contents of rolled oatsand whole oat flour that are required fora product to qualify for this claim.

In light of the evidence presented inthe proposal that some oat groatsnaturally contain low levels of β-glucansoluble fiber and, as a result, may nothave hypocholesterolemic properties,the agency finds it important to set aminimum β-glucan content to ensurethe effectiveness of these oat products.In new § 101.81(c)(2)(ii)(A)(2), theagency defines rolled oats, also knownas oatmeal, as a product produced from100 percent dehulled clean oat groats bysteaming, cutting, rolling, and flaking,and that provides at least 4 percent(dwb) of β-glucan soluble fiber with atotal dietary fiber content of at least 10percent (Refs. 1, 55 through 58, and 75).

In new § 101.81(c)(2)(ii)(3), the agencyis defining whole oat flour as a productthat is produced from 100 percentdehulled, clean oat groats by steamingand grinding, such that there is nosignificant loss of oat bran in the finalproduct, and that provides at least 4percent (dwb) of β-glucan soluble fiberand 10 percent (dwb) total dietary fiber.

FDA agrees with the comments thatdefinitions to identify of the whole oatsubstances that have been shown inclinical studies to help reduce serumlipids are important in light of the fact

that there are other whole oatsubstances, e.g., oat husks and fine oatflour, that have not been shown toprovide this effect.

2. Testing of Oat Products to EnsureRetention of Characteristics(Comment 9)

Some comments suggested that theeffect on blood lipids from consumptionof β-glucan soluble fiber from whole oatproducts is related to the molecularweight and the solution viscosity of theβ-glucan. The comments stated thatprocessing methods can alter the sizeand molecular weight of the β-glucanmolecule and may cause it to lose itseffect on blood cholesterol levels. Thecomments suggested that to ensure thatthe processed oat-containing foodproduct will provide the effectsassociated with the β-glucan solublefiber in the starting material, i.e., oatbran, rolled oats, and whole oat flour,the finished oat product should betested to determine whether its β-glucansoluble fiber has retained the physicalproperties, such as molecular weight,that it had in the starting material.

The agency is not persuaded thatthere is a need for testing for themolecular weight and solution viscosityof the β-glucan in products that containoat bran, rolled oat, or whole oat flour.Although processing can produceextensive depolymerization of the β-glucan, oat bran and rolled oats were fedto subjects in a variety of processedfoods as part of the scientific studiesthat evaluated the effects of theseingredients on blood cholesterol levels(see Table 1, 61 FR 296). Regardless ofwhether the whole oats were processedinto cereals, muffins, breads, or otherfoods, or whether they were consumedhot or cold, the majority of oat productssignificantly lowered blood lipids whenconsumed as part of an appropriate diet.

The agency noted that, in the fewstudies that did not demonstratecholesterol-lowering effects from theconsumption of oat bran or rolled oats,the authors attributed the lack of aneffect to either the source of the oatcultivar, specifically a New Zealandcultivar that had a low content ofsoluble fiber (one case), or to an effectof processing to purify an extract of theβ-glucan soluble fiber (one case) (61 FR296 at 305). Thus, the lack of an effectin one of these cases was associatedwith an unusually low level of β-glucanin the oats. This problem is protectedagainst by the β-glucan contentrequirement in § 101.81(c)(2)(ii)(A)(1),(2), and (3). In the other case, the lackof effect was associated with the use ofa highly processed oat gum extract. Thisresult does not represent a problem

under § 101.81 because FDA is onlyauthorizing claims on whole oatproducts.

Therefore, the agency finds that thereis no need for testing the physicalproperties of the β-glucan soluble fiberin processed products containing wholegrain oats.

C. Nature of the Food Eligible to Bearthe Claim

Proposed section § 101.81(c)(2)(iii)(A)stated that for a food to be eligible tobear the claim, it must contain 13 g ofoat bran or 20 g oatmeal, and that theoat bran or oatmeal must contain,without fortification, at least 1.0 g of β-glucan soluble fiber per RACC. Theagency noted that consumption of 3 ormore g of oat β-glucan soluble fiber perday was associated with significantreductions in blood total- and LDL-cholesterol levels. It tentativelyconcluded that it is reasonable toassume that a person could consume atotal of at least 40 g oat bran, 60 goatmeal, or a combination of the two, toprovide 3 g β-glucan soluble fiber in thecourse of three eating occasions a day.

1. Qualifying Criteria for Foods

(Comment 10)Some comments agreed with the

proposal and emphasized that foodsshould contain a significant amount ofoat bran or oatmeal in order to qualifyfor this claim. A few comments statedthat the claim should be allowed onlyon foods for which a customary servingenables consumers to achieve thedesired effect on the risk of disease (i.e.,3 g β-glucan per serving of food).However, a number of commentssuggested that it is unrealistic to assumeconsumers will eat enough oat bran oroatmeal daily for the rest of their livesto lower their risk of cardiovasculardisease.

Some comments suggested that theproposed qualifying levels of oatmeal,oat bran, and β-glucan were overlyrestrictive and prevented a number ofimportant oat-containing foods frombearing the claim. These commentsrequested that the qualifying levels ofoat bran, oatmeal, or β-glucan belowered so that more products couldqualify to bear the claim. Severalsuggested that Americans are morelikely to increase their consumption ofsoluble fiber if they are presented witha wide variety of whole-grain oat-containing foods that may be eaten overthe course of the day. The commentssuggested various qualifying levels for afood to bear the claim, ranging from 6to 15 g of oatmeal or from 4 to 11 g ofoat bran.


Some comments recommendedsetting only a level of β-glucan solublefiber that must be contained in the foodto qualify for this claim, rather than alevel of oat bran or oatmeal as well asa level of β-glucan soluble fiber. Thesecomments argued that the level of the β-glucan soluble fiber in the product is amarker of the product’s usefulness inreducing the risk of CHD, and that if aproduct contains the appropriateamount of β-glucan soluble fiber, itshould qualify to bear the claim nomatter how much oat bran or oatmeal itcontains. The comments suggested arange of qualifying β-glucan levels from0.5 g β-glucan to 3 g β-glucan perserving. A number of different rationaleswhere presented in the comments tojustify these varying qualifying levels ofβ-glucan per serving.

One comment recommended a levelof 0.6 g β-glucan soluble fiber perserving as the qualifying level instead ofthe proposed 1 g β-glucan soluble fiberbecause 0.6 g is more readily achievableand thus would encourage thedevelopment of new soluble fiber-containing products. According to thecomment, this level is at least twice thelevel of existing oatmeal-based bakeryproducts such as cookies and crackers.Some comments suggested that aqualifying level of 0.6 g β-glucan perserving would make the qualifyingcriteria for this claim consistent withthe authorized health claim for fruits,vegetables, and grain products and CHD.

Many comments stated that thequalifying level of β-glucan soluble fiberper serving should not be based on threeservings of oat products per day butrather on FDA’s usual basis of foureating occasions (three meals and asnack) a day. The comments stated thatthe agency did not adequately justify itsreliance on three eating occasions perday, rather than on four. A fewcomments questioned whetherconsumers would consume oatmeal andother oat products three or four times aday. One comment asked for evidencethat consumers will eat oat productsthree times a day every day.

As discussed earlier in this final rule,FDA has been persuaded that thesubject of the claim is appropriately β-glucan soluble fiber from whole oats.Thus, to be eligible to bear the claim, afood must contain the requisite amountof β-glucan soluble fiber from whole oatsources, rather than a specified amountof oat bran or rolled oats that provide aspecific amount of β-glucan solublefiber.

Given the changed focus of the finalregulation, the issues raised in thecomments that addressed the levels ofoat bran and oatmeal are moot. FDA has

deleted the requirement in proposed§ 101.81(c)(2)(iii)(A) that the food mustcontain no less than 20 g oatmeal or 13g of oat bran that provides, withoutfortification, at least 1.0 g of β-glucansoluble fiber and replaced it with arequirement that focuses on the β-glucan level.

The agency has reviewed thediscussions from the commentsconcerning the levels of β-glucan in afood. The agency disagrees with thecomments that suggested that thequalifying level of β-glucan soluble fiberbe low as 0.5 or 0.6 g per RACC topermit many more oat-containingproducts, e.g., crackers and cookies, toqualify to bear the claim. As discussedpreviously, an intake of 3 or more g ofβ-glucan soluble fiber from whole oatproducts is necessary to make asignificant impact on serum lipid levels.Using the minimum levels of β-glucansoluble fiber for oat bran (5.5 percent)and rolled oats and whole oat flour (4percent) that the agency now specifiesin new § 101.81(c)(ii)(A)(1) through (3)(see comment 8 in section II.B.1. of thisdocument), products that contain aminimum of 0.5 g β-glucan soluble fiberwould contain about 9 g of oat bran or12.5 g rolled oats or whole oat flour, ora level between 9 and 12 g if a blend ofwhole oats is used. To obtain a dailyintake of 3 g β-glucan from whole oats,it would require the consumption of sixor more servings. Similarly, if the oatproducts qualified with 0.6 g β-glucansoluble fiber, consumers would have toconsume five or more servings of oat-containing products daily. The agencyfinds that these levels of consumption,five or six or more servings per day,highly unlikely. As mentioned in someof the comments, consumers should beable to consume a beneficial amount ofthe nutrient based on typical Americaneating patterns, i.e., four eatingoccasions per day.

In the proposal, the agencyconsidered the number of eatingoccasions at which consumers mightconsume oat bran and rolled oats. Theagency tentatively agreed with thepetitioner’s arguments that it wasunlikely that consumers would eat oatbran or rolled oats 4 times a day, inorder to consume a daily intake of about40 g oat bran or 60 g rolled oats, but thatconsumers should be able to consumethis amount over three eating occasionsa day (61 FR 296 at 309). Based on thepetitioner’s submission, the agencyconsidered that β-glucan soluble fiberwould come from only two sources, oatbran and rolled oats, which would limitthe number and types of productsavailable.

In this final rule, however, the agencyhas expanded the sources of whole oatsto include whole oat flour. Thus, manymore whole oat-containing productswill be available to qualify to bear thisclaim. This development increases thelikelihood that whole oat products willbe consumed at four, instead of three,eating occasions. Moreover, based onconsumption data provided in acomment submitted by the petitioner,whole oat products (including all oatcereals, baked products, and snackfoods) are consumed at four eatingoccasions a day, with breakfast beingthe most popular time to consume oatproducts (see Sup-1 to Docket No. 95P–0197). Therefore, based on the expandedfocus of this final regulation (to includewhole oat flour) and on the additionalevidence from comments, the agency ispersuaded that the determination of thequalifying level of β-glucan for a food tobear a claim should be based on foureating occasions a day (three meals plusa snack) rather than on the proposedthree.

The agency proposed a qualifyinglevel of 1 g β-glucan soluble fiber perserving based on the consumption of 3g per day (see comment 6 in sectionII.A.6. of this document) distributedover three eating occasions per day.Based on the same approach as thatused in the proposal, but adjusting it forthe increase in the number of servingsconsumed per day, the intake of 3 g ofβ-glucan is distributed over fourservings per day as part of four eatingoccasions (3 g divided by 4) and resultsin a criterion of 0.75 g per serving (i.e.,RACC).

In providing for this qualifying level,the agency wishes to point out that theapproach used to derive the qualifyinglevel is somewhat different from thatused in authorizing other health claims.Specifically, the guiding principle forother health claims is to use theestablished definitions for ‘‘goodsource’’ or for ‘‘high’’ whichcharacterize the amount of a nutrientbased on a percentage of the Daily Value(DV) for the nutrient in a serving offood. In this way, products that qualifyto bear the claim contain a meaningfullevel of the substance per servingcompared to the recommended intake ofthe substance from all food sources. Inthe case of this final rule, there is no DVfor β-glucan soluble fiber or for solublefiber.

FDA has revised § 101.81(c)(2)(iii)(A)to state ‘‘[T]he food shall contain at least0.75 gram (g) per reference amountcustomarily consumed of whole oatsoluble fiber from the eligible sourceslisted in paragraph (c)(2)(ii) of thissection.’’ The statement in proposed


§ 101.81(c)(2)(iii)(A) regarding themethod for determining β-glucansoluble fiber has been deleted because itnow appears under section new section§ 101.81(c)(2)(ii)(A) of this final rule, asdiscussed previously.

No comments were received onproposed § 101.81(c)(2)(iii)(B) whichrequires that the food meet the nutrientcontent requirements of § 101.62 for a‘‘low saturated fat,’’ ‘‘low cholesterol,’’and ‘‘low fat’’ food. Therefore thisparagraph is adopted without change,although it has been renumbered as§ 101.81(c)(2)(iii)(C).

2. Mixtures of Oat Products(Comment 11)

Some comments stated that theagency should allow a mixture of oatproducts that together within a singlefood product provide the totalqualifying level of β-glucan soluble fiberto bear this claim. The comments statedthat as long as the requisite amount ofβ-glucan soluble fiber is present, itshould not matter if it is derived froma mixture.

The agency agrees with thissuggestion and notes that it neverintended not to allow a mixture ofwhole oats to qualify for the proposedclaim. To clarify this fact, the agencyhas revised § 101.81(c)(2)(iii) (Nature ofthe food eligible to bear the claim) tostate that the product must provide therequired level of soluble fiber per RACCfrom the eligible sources of whole oatsoluble fiber listed in § 101.81(c)(2)(ii).Therefore, a mixture of oat bran, rolledoats, and whole oat flour may be usedin a product that bears a claim so longas the product contains the requisiteamount of β-glucan soluble fiber perRACC.

3. Nutrient Declaration for Soluble Fiberand β-glucan Soluble Fiber

The agency proposed in § 101.81(d)(4)that if the claim uses the term ‘‘solublefiber,’’ which was to be optional, thetotal soluble fiber content must bedeclared in the nutrition label,consistent with § 101.9(c)(6)(i)(A).(Comment 12)

One comment suggested that the finalrule require that the soluble fiber and β-glucan contents of a food productbearing the health claim be declared innutrition labeling. The comment statedthat, because β-glucan is the markernutrient in a qualifying product, itshould be included in the nutritionlabel. The comment cited other healthclaim regulations specific to foods(rather than nutrients) (§§ 101.76 to101.78) as precedents for requiringdeclaration of the amount of the markernutrient in the nutrition label. In

suggesting that β-glucan be declared asa subcomponent of soluble fiber, thecomment also cited as precedent theregulation permitting β-carotene to bedeclared as a subcomponent of vitaminA (§ 101.9(c)(8)(vi)). In addition, thecomment stated that the final regulationshould also permit optional declarationof these nutrients elsewhere on thelabel, consistent with § 101.13(i)(3).

The agency has considered thiscomment in view of the previouslydiscussed conclusions concerning thefood substance that is the subject of thisclaim, specifically β-glucan soluble fiberfrom whole oats. The suggestion in thecomment that soluble fiber be declaredwithin the nutrition label is consistentwith the change in focus of the claimfrom oat bran and oatmeal to β-glucansoluble fiber from whole oats. Since β-glucan is a soluble fiber, and the claimrequires use of the term ‘‘soluble fiber,’’FDA is requiring the declaration of theamount of soluble fiber per RACC orlabeled serving (which would includethe declaration of the amount of β-glucan) in the nutrition label inaccordance with § 101.9(c)(6)(i)(A). Inthis document, FDA is adding§ 101.81(c)(2)(iii)(B), which reflects thisrequirement. As a result of this action,FDA, as stated previously, isredesignating proposed§ 101.81(c)(2)(iii)(B) as§ 101.81(c)(2)(iii)(C).

FDA does not agree with the commentthat the specific amount of β-glucanshould also be declared in the nutritionlabel. Declarations for β-carotene, whichthe comment uses as an analogy, aremade in terms of a percentage of the DVfor vitamin A. In this case, there is noDV for soluble fiber or for β-glucansoluble fiber. More importantly, use ofthe term ‘‘beta-glucan’’ as a subcategoryof soluble fiber would likely beconfusing to the consumer as ‘‘β-glucan’’ is primarily a technical termwith which consumers are not familiar.Therefore, FDA is not providing for thedeclaration of β-glucan on the nutritionlabel.

It should be noted that the agency ismaking provision for optional labelstatements in the claim relative to theamount of β-glucan considered useful inreducing the risk of CHD (i.e., 3 g perday) and to the contribution that oneserving of the food makes towardreaching the specified amount. Asexplained in section II.D.4. of thisdocument, provision of this informationis optional because of the agency’sconcerns about requiring long messagesand the possibility of consumerinformation overload. Moreover, giventhe potential for the broad range ofsoluble fibers that may be eligible to

bear the claim in the future, it isquestionable whether requiring that theconsumers’ attention be drawn to aspecific type of soluble fiber would behelpful. The comment provided noinformation on how consumers woulduse and interpret such a declaration forβ-glucan. In the absence of such data, itis difficult to conclude that declarationof β-glucan soluble fiber in the nutritionlabel would assist consumers to anygreater degree than the declaration ofsoluble fiber.

Further, FDA notes that, as suggestedin the comment, declaration of solublefiber and β-glucan soluble fiber on thelabel other than in the Nutrition Factspanel, is permitted by § 101.13(i)(3). Noadditional authorization is needed forsuch declarations.

D. Provisions for Abbreviated and FullClaims

In addition to providing for a fullclaim on the relationship between oatbran and rolled oats as part of a diet lowin saturated fat and cholesterol and riskof CHD, the agency proposed anoptional abbreviated claim. FDAproposed in § 101.81(c)(2)(ii),‘‘Presentation of the claim,’’ to providethat if a full statement of the claimappears on a label or in labeling, otherpresentations of the claim may appearon the label or in labeling that do notinclude the information required inproposed § 101.81(c)(2)(i)(C)(2) as longas there is a referral statement from theshortened to the full claim. The agencywas concerned, however, about thepossibility that consumers may not readthe complete claim, and thus that theywill not have all the facts necessary tofully understand the significance of theclaim and to comprehend the claim inthe context of the daily diet. FDA askedfor data on whether the shortened claimwill affect the extent to whichconsumers read the full claim (61 FR296 at 307). The agency also requestedcomments on whether consumers willbe misled if the multifactorial nature ofCHD is not stated as part of the claim(61 FR 296 at 307). The agency proposedmaking optional the statement ‘‘adisease caused by many factors.’’

1. Appropriateness of AbbreviatedClaim and Wording of Full Claim(Comment 13)

Many comments expressed concernabout the omission of reference to thediet in the proposed abbreviated claim.Some comments suggested that theproposed abbreviated claim, whichstated that ‘‘Diets high in [oat bran/oatmeal] may reduce the risk of heartdisease,’’ will mislead consumers tothink that the oat products will


compensate for a diet that is high insaturated fat and cholesterol. Thecomments stated that other authorizedhealth claims reinforce that overalldiets, not individual foods, can reducethe risk of disease. Many commentsstated that the abbreviated claim ismisleading without the reference to atotal diet that is low in saturated fat andcholesterol. A few of the commentsstated that the effects of oat bran orrolled oats on reducing the risk of CHD,in the absence of a low saturated fat andcholesterol diet, is modest, so theabbreviated claim may misleadconsumers to think that eating oatproducts daily, without consuming alow saturated fat and cholesterol diet,will significantly effect their risk ofCHD.

Some of the comments discussed dietas one of the more important modifiablerisk factors for CHD. Many stated that areference to the total diet should be amandatory part of the abbreviated claim.The comments suggested that includingreference to the diet in the claim willhelp prevent oat bran and rolled oatsfrom appearing to be ‘‘magic bullets.’’However, there were comments thatstated that consumers are aware that noone food is a ‘‘magic bullet’’ in reducingthe risk of disease.

Some of the comments stated that theagency did not present any data to showthat consumers will read the full claim,which includes the statement on thetotal diet, when it is located elsewhereon the food label relative to theabbreviated claim. They concluded thatconsumers would be misled by thelimited information in the abbreviatedclaim. Several comments stated that byremoving the qualifying portion of thehealth claim (i.e., information abouttotal diet) from the most prominentlocation on the label, there was lesslikelihood this critical informationwould be read by consumers.

Some comments supported FDA’sproposal to permit use of an abbreviatedhealth claim because it providedflexibility and consumer-friendlylanguage. Several comments in supportof the shortened claim mentioned itsadvantages in communicatinginformation to consumers because itwas easily readable, compelling, anddirect. The shortened claim was seen asplaying the role of a reminder toconsumers about the core diet-diseaserelationship that is the subject of thehealth claim. One comment citedfindings from FDA health claims focusgroups (Ref. 53), which reported thatconsumers perceived full health claimsas ‘‘too wordy, too vague, too academic,and much too long.’’ One commentstated the use of the abbreviated claim

as a referral (see § 101.14(d)(2)(iv)) tothe full claim would serve bothconsumer information needs and themotivational goals of the 1990amendments to encourage industry touse health claims on appropriate foodproducts.

The agency proposed the abbreviatedclaim because the petitioner requestedit, and because the agency tentativelyconcluded that the information could bemore effectively communicated with anabbreviated claim in a prominent placewith a referral to the full claim. Theagency did not intend for theabbreviated message to suggest toconsumers that adding oats to the dietwas the only dietary modificationnecessary to help them reduce the riskof CHD.

The agency agrees with the commentsthat the dietary component of thishealth claim is important for a completeunderstanding of the relationshipbetween the type of soluble fiber fromwhole oats and reduced risk of heartdisease. FDA has been persuaded thatthere is the possibility that consumersmay be misled if reference to the totaldiet were to be omitted in anabbreviated version of this claim. Dietslow in saturated fat and cholesterol areconsidered by expert groups to be themost effective dietary means of reducingheart disease risk (Ref. 5). While solublefiber from whole oats can contribute tothis effect, its role is generallyrecognized as being of smallermagnitude (Refs. 4 and 5). Selection offoods with soluble fiber from whole oatsis seen as a useful adjunct to selectionof diets low in saturated fat andcholesterol (Ref. 5). Therefore, theagency concludes that it would not bein the best interest of public health orconsistent with the scientific evidenceto imply that selecting diets withsoluble fiber from whole oats is asubstitute for consuming diets low insaturated fat and cholesterol, and hasFDA revised § 101.81 to emphasize theimportance of the diet.

Proposed § 110.81(b)(2) stated, ‘‘* * *Scientific evidence demonstrates thatdiets high in oat bran and oatmeal andlow in saturated fat and cholesterol areassociated with lower blood total- andLDL-cholesterol levels.’’ FDA hasrevised that sentence to state:

* * * Scientific evidence demonstrates thatdiets low in saturated fat and cholesterol areassociated with lower blood total and LDL-cholesterol levels. Soluble fiber from wholeoats, when added to a low saturated fat andcholesterol diet, also helps to lower theseblood levels and thus the risk of CHD.The revised statement emphasizes thatconsumption of a diet low in saturatedfat and cholesterol is an important factor

in reducing the risk of CHD and isconsistent with FDA’s conclusions inauthorizing the health claim for dietarysaturated fat and cholesterol and heartdisease (58 FR 2739, January 6, 1993).

Relative to the concerns about theappropriateness of the abbreviatedclaim, the agency was mindful of thosecomments that focused on concernsabout health claims being too wordyand too lengthy. This concern has beenraised to the agency in various ways,including by a petition submitted by theNational Food Processors Association(NFPA) (Docket No. 94P–0390). Inresponse to the NFPA petition, theagency proposed several changes to therequirements for health claims in theFederal Register of December 21, 1995(60 FR at 66206) (the 1995 proposal). Atthat time, FDA stated that it had nodesire for its regulations tounnecessarily stand in the way of theuse of health claims and thepresentation of the importantinformation contained therein. Theagency stated that, while health claimsare being used on the label and inlabeling, they could be used moreextensively. The agency, therefore,proposed to provide for shorter healthclaims by making optional some of theelements that are presently required. IfFDA finalizes the 1995 proposal as itwas proposed, many of the current fullclaims will be brief enough to permittheir use on the principal display panel.

FDA is reviewing the commentsreceived in response to the 1995proposal on changing the requirementsfor health claims, but it has notcompleted its work on the final rule.Given that this proposal is pending, andgiven its relevance to many of the issuesraised as a result of the proposal that isthe subject of this rulemaking, FDA hasdecided to defer a decision on allowingfor an abbreviated claim on β-glucansoluble fiber from whole oats and therisk of CHD. The agency intends toresolve this matter in the context of therulemaking based on the NFPA petition.Thus, at this time, the agency is makingprovision only for a full claim. Thus,FDA has deleted proposed§ 101.81(c)(2)(ii), ‘‘Presentation of theclaim,’’ which provided for anabbreviated claim, in this final rule.

2. Research Study on the AbbreviatedClaim(Comment 14)

A comment from the petitionerincluded results from a consumerresearch study that compared anabbreviated oatmeal claim (‘‘A diet highin oatmeal may help reduce the risk ofheart disease’’) with a full fiber-heartdisease health claim (‘‘Diets low in


saturated fat and cholesterol and high ingrains, fruits and vegetables that containfiber, particularly soluble fiber, mayreduce the risk of heart disease, acondition associated with manyfactors.’’) The data were from a nationalshopping mall intercept study of 826consumers. Participants saw one ofthree mocked-up cereal packages thatcontained either the abbreviated claim,the long claim, or no claim (controlcondition).

The comment suggested that resultsshowed that the presence of eitherhealth claim, compared to the controlcondition, increased the number ofparticipants who recognized that a diethigh in oatmeal may help reduce therisk of heart disease. There were nosignificant differences in terms of theimpact of the claims on consumers’perceptions of the product or theirbeliefs about the diet-diseaserelationship.

The data submitted by the petitioneraddress issues related to theinterpretation of a specific abbreviatedclaim and are intended to providesupport for an abbreviated claim on therelationship that is the subject of thisrulemaking. Because the FDArulemaking that responds to the NFPApetition is pending, the agency isdeferring a final decision on whether tomake provisions for an abbreviatedclaim to describe this relationship. FDAfinds that there is nothing in thisevidence that is sufficiently compellingto persuade the agency that it is notappropriate to defer this decision.Therefore, the agency is forwarding thepetitioner’s comment and supportingdata as a comment to the 1995 proposal(i.e., to Docket No. 94P–0390) so thatFDA can consider these results as partof that rulemaking.

3. Use of ‘‘Low Fat’’ to Replace ‘‘Low inSaturated Fat and Cholesterol’’(Comment 15)

Two comments suggested that thestatement ‘‘low in saturated fat andcholesterol’’ might be shortened to ‘‘lowfat’’ for the abbreviated claim only.These comments did not provide anydata to show that consumers interpretthe statement ‘‘low fat’’ to mean ‘‘low insaturated fat and cholesterol.’’

Another comment cautioned againstreferring to a ‘‘low fat’’ diet because thescientific evidence showed that a lowfat diet was not associated with reducedblood total cholesterol levels and hencea reduced risk of CHD, while a diet lowin saturated fat and cholesterol didaffect cholesterol levels.

The agency finds that there is notsufficient evidence to supportsimplifying the term ‘‘low saturated fat

and cholesterol’’ to the term ‘‘low fat.’’No data were submitted to show thatconsumers would not be misled by sucha simplification, and, as pointed out bycomments, there is evidence that low fatdiets do not necessarily result in thebenefits of low saturated fat diets. Theterm ‘‘low fat’’ is defined in§ 101.62(b)(iii)(2) as low in total lipidfatty acids. It therefore takes intoaccount not only saturated fat but alsopolyunsaturated and monounsaturatedfat. Further, the term does not includecholesterol. Therefore, the term ‘‘lowfat’’ is not be sufficiently specific.

4. Modifications of § 101.81In light of the changes in this final

rule to authorize a claim for diets lowin saturated fat and cholesterol thatinclude soluble fiber from whole oats, anumber of additional modifications tothe proposed requirement for the claimare required.

The agency is revising§ 101.81(c)(2)(i)(A) to state that: ‘‘Theclaim states that diets low in saturatedfat and cholesterol that include solublefiber from whole oats ‘may’ or ‘might’reduce the risk of heart disease.’’

New § 101.81(c)(2)(i)(C) states: ‘‘Inspecifying the substance, the claim usesthe term ’soluble fiber’ qualified byeither the use of the name of the eligiblesource of whole oat soluble fiber(provided in (c)(2)(ii)) or the name of thefood product.’’ Examples of suchstatements are: ‘‘Soluble fiber fromwhole oats * * *’’ and ‘‘Soluble fiberfrom oatmeal * * *’’ In each case, theinclusion of information about thesource or the product qualifies the termsoluble fiber so that the consumer is notmisled to believe that all soluble fibermay reduce the risk of CHD. Themanufacturer may also clarify theinformation for those product namesthat do not indicate the name of thesoluble fiber source, for instance:‘‘Soluble fiber from the oat bran in thisproduct * * *.’’

The agency is also adding newparagraph (c)(2)(i)(D), which states: ‘‘Inspecifying the fat component, the claimuses the terms ′saturated fat′ and′cholesterol′.’’ This terminology isconsistent with the authorized CHDhealth claims, §§ 101.75 and 101.77,regarding diets low in saturated fat andcholesterol and risk of disease.

After careful consideration of thecomments about claim wording and inview of the change in focus of the claimin response to comments, FDA hasmodified the model health claimstatements in § 101.81(e) to reflect thechanges it is making. Thus, FDA hasdeleted proposed paragraph (e)(1),which provided an example of a full

claim, and replaced it with thefollowing model claim: ‘‘Soluble fiberfrom foods such as [name of solublefiber source from paragraph (c)(2)(ii) ofthis section or name of food product], aspart of a diet low in saturated fat andcholesterol, may reduce the risk of heartdisease.’’ FDA has also deletedproposed § 101.81(e)(2) and (e)(2)(A)and (B), which provided examples ofthe shortened claim with the referralstatement, and replaced it with newparagraph (e)(2), which gives anotherexample of a full claim.

Section 101.81(d) provides foroptional information that themanufacturer may use to elaborate onthe substance-disease relationship. New§ 101.81(d)(4) states that themanufacturer may identify the specifictype of soluble fiber that is the subjectof claim. For instance, the claim maystate: ‘‘Beta-glucan soluble fiber fromwhole oats, as part of a diet low insaturated fat and cholesterol, mayreduce the risk of coronary heartdisease.’’ The agency believes that thespecification of β-glucan soluble fiber inthe wording of the claim is appropriateas an option for the manufacturer butneed not be a required component of theclaim, because while scientificallycorrect, it may be information that is tootechnical for many consumers and thuscontrary to the agency’s desire to keepthe claim simple, concise, and easy forconsumers to understand.

Proposed § 101.81(b)(2) stated,‘‘Intakes of saturated fat exceedrecommended levels in the diets ofmany people in the United States.Intakes of cholesterol are, on average, ator above recommended levels * * *.’’Based on recent data on cholesterolintakes reported in the ‘‘Third Report onNutrition Monitoring in the UnitedStates’’ (Ref. 77), which shows areduction in some cholesterol intakelevels, the agency has reconsideredincluding of the second sentence andhas decided to delete it.

5. Multifactorial Nature of Disease(Comment 16)

Several comments responded toFDA’s question as to whetherconsumers will be misled if themultifactorial nature of CHD is notstated in the claim. These commentssupported the proposal to make optionalthe statement ‘‘a disease caused bymany factors.’’ Several comments citedFDA Health and Diet Survey data thatshowed ‘‘American consumersunderstand that serious diseases likecancer and heart disease have multiplecauses, including factors such as diet,heredity, smoking and stress’’ (Ref. 54).One comment stated that consumers are


sufficiently knowledgeable to appreciatethat many factors affect risk of CHD, andthat a mandatory statement of this factwould detract from the communicationof the core message because it wouldmake the claim longer, which would inturn deter manufacturers from using theclaim.

For the reasons set out in the proposaland in the absence of any objections tothe agency doing so, FDA has concludedthat the statement ‘‘a disease caused bymany factors’’ should remain optional.FDA is adopting proposed paragraph(d)(1) without change.

6. Dietary ‘‘Context’’ of Claim

(Comment 17)Some comments stated that the

proposed claim would be misleading toconsumers because it provided noindication of how much of the oat-containing food would have to beconsumed to reduce the risk of CHD.One comment stressed the need forexplicit information in the health claimabout how much oat bran or oatmeal toeat daily to affect the risk of disease, forexample in terms of number of servings.The comment emphasized the need tomake it clear that the consumer shouldeat a certain amount every day in orderto benefit from consumption of thesefoods.

The agency agrees that consumersmay find ‘‘contextual’’ information, aswell as additional information thatspecifies the nature of the relationship,helpful. However, in the absence of aDRV for soluble fiber, the agency cannotidentify an amount of whole oat solublefiber that represents a ‘‘good source’’ orthat is ‘‘high’’ in soluble fiber. Until theagency takes action to establish a DRVfor soluble fiber, it considers suchinformation to be more appropriate asoptional information.

The agency does not agree thatconsumers would be misled if suchinformation were not provided, and themandatory inclusion of such optionalinformation would be inconsistent withthe approach taken for other claims. Forthe other authorized health claims,§§ 101.72 through 101.80, the agencyhas not required the level of detailsuggested by these comments in thewording of the claim. For example, theregulation authorizing health claims onthe relationship between diets low insaturated fat and cholesterol and CHDdoes not require that the claimstatement specify that saturated fatshould be less than 10 percent ofcalories on a daily basis, or thatcholesterol should be limited to lessthan 300 mg per day. FDA allows for theoptional provision of this information.

FDA, therefore, concludes that theinformation described in proposed§ 101.81(d)(8) be retained as optionalinformation, but the agency ismodifying the statement to reflect thechange in the focus of the claim to β-glucan soluble fiber from whole oats.Proposed paragraph (d)(8) has beenreplaced with new § 101.81(d)(6), whichstates:

A claim based on β-glucan soluble fiberfrom whole oats may state that 3 g or moreper day of β-glucan soluble fiber from wholeoats may reduce the risk of CHD, providedthat the claim also states the contribution oneserving of the product makes to this specifiedintake level for β-glucan soluble fiber.The amount of β-glucan per serving isrequired here because without it,consumers may be misled to believe thatthe food contributes 3 g of β-glucansoluble fiber per serving. In making thisprovision, FDA wishes to point out thatif a variety of soluble fibers becomeeligible to make this claim, it may benecessary to review and revise theappropriateness of such ‘‘contextual.’’

As a result of this change, FDA hasrenumbered proposed paragraphs (d)(6)and (d)(7) in the final regulation asparagraphs (d)(7) and (d)(8),respectively. In the absence ofcomments on paragraphs (d)(7) and(d)(8), FDA has adopted theseparagraphs without change.

Proposed paragraph (d)(5) states: ‘‘Theclaim may state that a diet low insaturated fat and cholesterol and high inoatmeal or oat bran is consistent with‘Nutrition and Your Health, DietaryGuidelines for Americans,’* * *.’’ In light of the change in focusof this claim to soluble fiber from wholeoats and in the absence of dietaryguidelines specific for soluble fiber, theagency is revising this statement to keepit consistent with ‘‘Dietary Guidelinesfor Americans.’’ Therefore,§ 101.81(d)(5) now states ‘‘* * * a dietlow in saturated fat and cholesterol thatincludes soluble fiber from whole oats’’is consistent with the dietary guidelines.

E. Other Comments

1. Implied Claims

(Comment 18)Some comments expressed concern

that, if FDA authorizes a health claimthat specifically mentions an oatingredient, e.g., oat bran, oatmeal, orwhole oats, these terms will imply,wherever they appear, that the foodprovides the effect described in theclaim. One comment suggested specificlimitations on how label statementsabout oat ingredients in a food could beused, depending on the nature andamount of soluble fiber in the food.

Another comment noted that in theregulation on implied nutrient contentclaims (§ 101.65(c)(3)) and FDA’sdiscussion of implied claims in theJanuary 6, 1993, final rule on nutrientcontent claims (58 FR at 2374), theagency had provided that in somecontexts terms like ‘‘made with oatbran’’ or ‘‘oat bran muffins’’ would beconsidered to imply that the food wasa good source of dietary fiber. Thiscomment stated that once the healthclaim appears on food labels, consumerswill interpret the terms as implying thepresence of a significant amount of β-glucan soluble fiber consistent with themessage of the claim. The commentstated that, therefore, any such oatingredient implied nutrient contentclaim should be regulated as a claimabout the amount of β-glucan solublefiber rather than as a more general claimabout dietary fiber.

Recognizing that current FDAregulations do not permit ‘‘good source’’or ‘‘high in’’ claims about soluble fiberin general or about β-glucan inparticular, the comment suggested thatFDA provide advice in this final rulethat such claims could be made usingthe soluble fiber intakerecommendations cited in the regulationauthorizing health claims about soluble-fiber containing fruits, vegetables, andgrain products and CHD (§ 101.77). Inthe preamble to the final ruleestablishing § 101.77 (58 FR 2573through 2574), FDA had explained thatthe 0.6 g soluble fiber eligibilitycriterion for bearing the claim derivesfrom 10 percent of the Life ScienceResearch Organization (LSRO)recommended daily intake of solublefiber, i.e., about 6 g (Ref. 7).

Another comment disagreed with thissuggestion, however, stating that itwould require decisions that are outsidethe scope of this proposal. The commentstated that the proposal made nomention of the possibility of a nutrientcontent claim regulation arising fromthe proposed health claim rule. Inaddition, the comment stated that itwould be speculative to conclude thatany declaration (outside the ingredientlist) on the label of the whole oatsubstance identified in the health claimregulation would constitute a nutrientcontent claim. The comment stated thatthe impact of label references to oatswill depend on a variety of factors: Theextent of the market penetration of theoats/CHD claim; the manner in whichconsumers who became aware of theclaim perceive that claim; whether theclaim leads consumers to become awareof β-glucan at all; and whether theyconsider it beyond its role as a markerfor measuring the effectiveness of oats


in improving serum cholesterol levels.On the basis that this kind ofinformation is not available at this time,the comment opined that FDA shouldnot adopt any final rules until it hasmore information on these issues.

The agency agrees that a finalregulation defining a nutrient contentclaim is outside the scope of theproposal. FDA also agrees with thecomment that it would be premature forthe agency to conclude that alldeclarations of relevant oat ingredientson a food label (other than in theingredient list) are implied claims. Theregulation establishing generalprinciples for health claims states thatimplied health claims ‘‘include thosestatements, * * * that suggest, within thecontext in which they are presented,that a relationship exists between thepresence or level of a substance in thefood and a disease or health-relatedcondition’’ (§ 101.14(a)(1)). In thepreamble for that regulation (58 FR 2478at 2483), FDA stated that it could notestablish a bright line definition ofimplied health claims, and that labelingclaims needed to be considered in theirentirety and in context to determinewhether the elements of a health claimare present. The agency took a similarposition in the preamble of the final ruleestablishing regulations for nutrientcontent claims (58 FR 2370 through2374). In that document, FDA statedthat whether a label statement is anutrient content claim will depend onthe context in which it is presented,taking the entire label intoconsideration.

To change this position and find thatterms such as ‘‘oat bran,’’ ‘‘rolled oats,’’or ‘‘whole oat flour’’ are always in acontext that constitutes a nutrientcontent or health claim, FDA wouldneed information that it does not have.The agency would need data showingthat consumers consistently interpretthese terms as implying the presence ofa significant amount of β-glucan, or thatconsumption of the food will affect therisk of CHD. The comments did notprovide this or any other kind ofinformation that FDA could use as abasis for the requested policy.

While FDA remains concerned thatlabel statements not be misleading, itagrees with the comment that its policyof evaluating label statements on a case-by-case basis provides adequate control.The agency reviews the entire label toassess what emphasis is being placed onthe specific ingredients named.However, if experience with labelstatements about oat ingredients orother information persuades FDA thatadditional regulatory controls are

needed, the agency can take action toestablish appropriate regulations.

In addition, FDA advises that, asdiscussed previously in response tocomment 5 in section II.A.5. of thisdocument, the agency intends topropose to establish a DRV for solublefiber, which will provide the basis fornutrient content claims like ‘‘goodsource of soluble fiber’’ and ‘‘high insoluble fiber.’’ The information in thecomment recommending use of 6 g asthe DV can be fully evaluated in therulemaking to establish the DV forsoluble fiber.

2. Reference to Authoritative Bodies(Comment 19)

One comment suggested permittingreference to third party authoritativebodies, including FDA, as part of thehealth claim. It was noted that in theFDA health claims study (Ref. 53),consumers expressed skepticism abouthealth claims on food packages, in largepart because they did not realize healthinformation on the front of the packagewas regulated.

The agency advises that issues relatedto making specific provision forreference to authoritative bodies as partof health claims statements is outsidethe scope of this rulemaking. Under thestatute, FDA evaluates the relationshipbetween a nutrient or food and a diseasebeing advanced as the subject of ahealth claim. FDA authorization reflectsa determination that there is significantscientific agreement that therelationship is supported by the totalityof publicly available data. Once a healthclaim has been authorized by theagency, specific claims on labels are notsubject to prior review or approvalbecause the agency does not approvespecific claims (see section3(b)(1)(A)(vii) of the 1990 amendments).Therefore, the agency does not agreethat citing FDA as an authoritative bodyis appropriate. Under the generalprinciples for health claims,§ 101.14(a)(1), the agency defines ahealth claim as including ‘‘third party’’references, so it does not object to theuse of other third party endorsements,provided the food complies with allrequirements of the claim, and thestatement of endorsement is not false ormisleading.

3. RACC(Comment 20)

One comment requested that FDAreevaluate its established RACC forflavored instant oat products. Thecomment suggested that the RACC forflavored sweetened hot cereals shouldbe lowered from 55 g to 40 g which isthe RACC for regular rolled oats.

This issue is outside the scope of thisrulemaking. This rulemaking addressesthe question of whether to authorize aclaim regarding the association betweenoat bran and rolled oats and the risk ofCHD. The process for amending areference amount is set forth in § 101.12.

4. Oat Gum Product(Comment 21)

One comment stated that, in theproposal, the agency incorrectlyconcluded that the oat gum productused in the study by Braaten et al. (Ref.12), had not been characterized. Thecomment stated that the gum wasthoroughly described and characterizedin other studies that were cited in theBraaten et al. study, and requested thatFDA correct this statement to make clearthat the gum had in fact beencharacterized. The comment included acopy of the studies but made no otherrequest relative to consideration of thesedata.

The agency acknowledges that the oatgum used in the study by Braaten andcoworkers was characterized in theinformation and studies submitted withthe comment (Refs. 56, 59, and 76). Theagency notes, however, that thisadditional information was notsubmitted with the petition and was,therefore, not part of the administrativerecord available to the agency at thetime of the proposal. The studiessubmitted with the comment do notalter the outcome of this finalrulemaking because oat gum, a purifiedextract of oat bran, is not a whole grainoat product and was not one of thesubstances that was the subject of thepetition. Although whole oat flour wasnot one of the substances in the petition,the agency has included it in this finalrule because it is a whole grain oatproduct with similar nutritionalproperties to rolled oats, and there weresufficient data in the administrativerecord from which to evaluate itsphysiological effectiveness. This type ofevidence for purified oat gum is notavailable in the administrative record. Amanufacturer may petition to amend§ 101.81 to include oat gum bysubmitting such data.

III. Decision to Authorize a HealthClaim on the Relationship BetweenSoluble Fiber From Whole Oats andCHD

FDA has considered all of thecomments that it received in response toits proposal to authorize a claim todescribe the relationship between oatbran and rolled oats and the risk ofCHD. The agency is authorizing thisclaim although, based on comments,FDA has been persuaded to make a


number of changes in the proposedprovisions for the health claim.

FDA concludes that, rather than oatbran and rolled oats, the food substancethat is the subject of the claim is β-glucan soluble fiber from whole oats.FDA further determines that therelationship is scientifically valid inthat there is significant scientificagreement based on the totality ofpublicly available scientific evidencethat β-glucan soluble fiber from wholeoats, as part of a diet low in saturatedfat and cholesterol, may reduce the riskof CHD. Decisions relating to provisionsfor an abbreviated version of the claimhave been deferred and will be handledin a separate rulemaking.

IV. Environmental ImpactThe agency has previously considered

the environmental effects of this rule asannounced in the proposed rule (61 FR296). At that time, the agencydetermined under 21 CFR 25.24(a)(11)that this action is of a type that does notindividually or cumulatively have asignificant effect on the humanenvironment. No new information orcomments have been received thatwould affect the agency’s previousdetermination that there is nosignificant impact on the humanenvironment and that an environmentalimpact statement is not required.

V. Analysis of ImpactsFDA has examined the impacts of the

final rule under Executive Order 12866and the Regulatory Flexibility Act (5U.S.C. 601–612). Executive Order 12866directs agencies to assess all costs andbenefits of available regulatoryalternatives and, when regulation isnecessary, to select the regulatoryapproach that maximizes net benefits(including potential economic,environmental, public health and safetyeffects; distributive impacts; andequity).

Executive Order 12866 classifies arule as significant if it meets any one ofa number of specified conditions,including having an annual effect on theeconomy of $100 million or adverselyaffecting in a material way a sector ofthe economy, competition, or jobs, or ifit raises novel legal or policy issues. Ifa rule has a significant economic impacton a substantial number of smallentities, the Regulatory Flexibility Actrequires agencies to analyze regulatoryoptions that would minimize theeconomic impact of that rule on smallentities. FDA finds that this final rule isnot a significant rule as defined byExecutive Order 12866 and finds underthe Regulatory Flexibility Act that thefinal rule will not have a significant

impact on a substantial number of smallentities.

The authorization of health claimsabout the relationship between β-glucansoluble fiber from whole oats and CHDresults in benefits and in costs only tothe extent that food manufacturers electto take advantage of the opportunity touse the claim. This rule will not requirethat any labels be redesigned, or thatany product be reformulated.

The benefit of authorizing this type ofhealth claim is to provide for newinformation in the market in the form ofa claim linking consumption of solublefiber from whole oats to the risk of CHD.

Costs will be incurred by smallentities only if they opt to takeadvantage of the marketing opportunitypresented by this regulation. FDAcannot predict the number of smallentities that will choose to use theclaim. However, no firm, includingsmall entities, will choose to bear thecost of redesigning labels unless theybelieve the claim will result inincreased sales of their product.Therefore, this rule will not result ineither a decrease in revenues or asignificant increase in costs to any smallentity. Accordingly, under theRegulatory Flexibility Act, 5 U.S.C.605(b), the Secretary certifies that thisfinal rule will not have a significanteconomic impact on a substantialnumber of small entities.

VI. Paperwork Reduction ActThis final rule contains no

information collection or recordkeepingrequirements under the PaperworkReduction Act of 1995 (44 U.S.C. 3501et seq.).

VII. ReferencesThe following references have been

placed on display in the DocketsManagement Branch (address above)and may be seen by interested personsbetween 9 a. m. and 4 p. m., Mondaythrough Friday.

1. The Quaker Oats Company, ‘‘Petition forHealth Claim—Oat Products and CoronaryHeart Disease,’’ March 22, 1995 [CP1].

2. Scarbrough, F. Edward, CFSAN, FDA,Letter to Ted Moeller, Quaker Oats Company,June 29, 1995.

3. DHHS, Public Health Service (PHS),‘‘The Surgeon General’s Report on Nutritionand Health,’’ U.S. Government PrintingOffice, Washington, DC, 1988.

4. National Research Council, NationalAcademy of Sciences, ‘‘Diet and Health,’’National Academy Press, Washington, DC,1989.

5. DHHS, PHS and the National Institutesof Health (NIH), ‘‘National CholesterolEducation Program: Report of the ExpertPanel on Detection, Evaluation, andTreatment of High Blood Cholesterol inAdults,’’ NIH, Bethesda, MD, 1989.

6. DHHS, PHS and the National Institutesof Health, ‘‘National Cholesterol EducationProgram: Population Panel Report,’’Bethesda, MD, 1989.

7. LSRO, FASEB, ‘‘Physiological Effectsand Health Consequences of Dietary Fiber,’’Bethesda, MD, 1987.

8. Anderson, J. W., N. H. Gilinsky, D. A.Deakins, S. F. Smith, D. S. O’Neal, D. W.Dillon, and P. R. Oeltgen, ‘‘Lipid Responsesof Hypercholesterolemic Men to Oat-branand Wheat Bran Intake,’’ American Journal ofClinical Nutrition, 54:678–83, 1991.

9. Anderson, J. W., D. B. Spencer, C. C.Hamilton, S. F. Smith, J. Tietyen, C. A.Bryant, and P. Oeltgen,‘‘Oat-bran CerealLowers Serum Total and LDL Cholesterol inHypercholesterolemic Men,’’ AmericanJournal of Clinical Nutrition, 52:495–499,1990.

10. Bartram, P., S. Gerlach, W. Scheppach,F. Keller, and H. Kasper, ‘‘Effect of a SingleOat Bran Cereal Breakfast on SerumCholesterol, Lipoproteins, andApolipoproteins in Patients withHyperlipoproteinemia Type IIa,’’ Journal ofParenteral and Enteral Nutrition, 16:533–537, 1992.

11. Beling, S., L. Detrick, and W. Castelli,‘‘Serum Cholesterol Response to a ProcessedOat Bran Cereal AmongHypercholesterolemics on a Fat-modifiedDiet,’’ unpublished clinical trial submitted bythe Quaker Oats Co., 1991.

12. Braaten, J. T., P. J. Wood, F. W. Scott,M. S. Wolyneta, M. K. Lowe, P. Bradley-White, M. W. Collins, ‘‘Oat Beta-glucanReduces Blood Cholesterol Concentration inHypercholesterolemic Subjects,’’ EuropeanJournal of Clinical Investigation, 48:465–474,1994.

13. Bremer, J. M., R. S. Scott, and C. J.Lintott, ‘‘Oat Bran and CholesterolReduction: Evidence Against Specific Effect,’’Australia and New Zealand Journal ofMedicine, 21:422–426, 1991.

14. Cara, L., C. Cubois, P. Borel, M.Armand, M. Senft, H. Portugal, A. M. Pauli,P. M. Bernard, and D. Lairon, ‘‘Effects of OatBran, Rice Bran, Wheat Fiber, and WheatGerm on Postprandial Lipemia in HealthyAdults,’’ American Journal of ClinicalNutrition, 55:81–88, 1992.

15. Davidson, M. H., L. D. Dugan, J. H.Burns, J. Bova, K. Story, and K. B. Drennan,‘‘The Hypocholesterolemic Effects of Beta-glucan in Oatmeal and Oat Bran—A Dose-controlled Study,’’ Journal of the AmericanMedical Association, 265(14):1833–39, 1991.

16. Demark-Wahnefried, W., J. Bowering,and P. S. Cohen, ‘‘Reduced SerumCholesterol with Dietary Change Using Fat-modified and Oat Bran Supplemented Diets,’’Journal of the American Dietetic Association,90:223–9, 1990.

17. Gold, K. V. and D. M. Davidson, ‘‘OatBran as a Cholesterol-Reducing DietaryAdjunct in a Young, Healthy Population,’’Western Journal of Medicine, 148:299–302,1988.

18. Gormley, T. R., J. Kevany, J. P. Egan,and R. McFarland, ‘‘Investigation of thePotential of Porridge as aHypocholesterolemic Agent,’’ Israel Journalof Food Science and Technology, 2:85–91,1978.


19. He, J., M. J. Klag, P. K. Whelton, J-P.Mo, J-Y. Chen, P-S. Mo, and G-Q. He, ‘‘Oatsand Buckwheat Intakes and CardiovascularDisease Risk Factors in an Ethnic Minority ofChina,’’ American Journal of ClinicalNutrition, 61:366–372, 1995.

20. Hegsted, M., M. M. Windhauser, K.Morris, and S. B. Lester, ‘‘Stabilized RiceBran and Oat Bran Lower Cholesterol inHumans,’’ Nutrition Research, 13:387–398,1993.

21. Kahn, R. F., K. W. Davidson, J. Garner,and R. S. McCord, ‘‘Oat BranSupplementation for Elevated SerumCholesterol,’’ Family Practice ResearchJournal, 10:37–46, 1990.

22. Kastan, H. H., S. Stern, D. J. A. Jenkins,K. Hay, N. Marcon, S. Minkin, and W. R.Bruce, ‘‘Wheat Bran and Oat-BranSupplements’ Effects on Blood Lipids andLipoproteins,’’ American Journal of ClinicalNutrition, 55:976–980, 1992.

23. Keenan, J. M., J. B. Wenz, S. Myers, C.Ripsin, and Z. Huang, ‘‘RandomizedControlled Cross-over Trial of Oat Bran inHypercholesterolemic Subjects,’’ Journal ofFamily Practice, 33:600–608, 1991.

24. Kelley, M. J., J. Hoover-Plow, J. F.Nichols-Bernhard, L. S. Verity, and H. B.Brewer, ‘‘Oat Bran Lowers Total and Low-Density Lipoprotein Cholesterol but notLipoprotein in Exercising Adults withBorderline Hypercholesterolemia,’’ Journal ofthe American Dietetic Association, 94:1419–1421, 1994.

25. Kestin, M., R. Moss, P. M. Clifton, andP. J. Nestel, ‘‘Comparative Effects of ThreeCereal Brans on Plasma Lipids, BloodPressure, and Glucose Metabolism in MildlyHypercholesterolemic Men,’’ AmericanJournal of Clinical Nutrition, 52:661–6, 1990.

26. Leadbetter, J., M. J. Ball, and J. I. Mann,‘‘Effects of Increasing Quantities of Oat Branin Hypercholesterolemic People,’’ AmericanJournal of Clinical Nutrition, 54:841–845,1991.

27. Lepre, F. and S. Crane, ‘‘Effect of OatBran on Mild Hyperlipidaemia,’’ The MedicalJournal of Australia, 157:305–306, 1992.

28. Mackay, S. and M. J. Ball, ‘‘Do Beansand Oat Bran Add to the Effectiveness of aLow-fat Diet?’’, European Journal of ClinicalNutrition, 46:641–648, 1992.

29. Marlett, J. A., K. B. Hosig, N. W.Vollendorf, F. L. Shinnick, V. S. Haack, andJ. A. Story, ‘‘Mechanism of SerumCholesterol Reduction by Oat Bran,’’Hepatology, 20:1450–1457, 1994.

30. O’Brien, L. T., R. J. Barnard, and J. A.Hall, ‘‘Effects of a High-Complex-Carbohydrate Low-Cholesterol Diet Plus BranSupplement on Serum Lipids,’’ Journal ofApplied Nutrition, 37:26–34, 1985.

31. O’Kell, R. T. and A. A. Duston, ‘‘Lackof Effect of Dietary Oats on SerumCholesterol,’’ Missouri Medicine, 85:726–728,1988.

32. Poulter, N., C. L. Chang, A. Cuff, C.Poulter, P. Sever, and S. Thom, ‘‘LipidProfiles After the Daily Consumption of anOat-based Cereal: A Controlled CrossoverTrial,’’ American Journal of ClinicalNutrition, 58:66–69, 1993.

33. Ripsin, C. M., J. M. Keenan, D. R.Jacobs, P. J. Elmer, R. R. Welch, L. Van Horn,K. Liu, W. H. Turnbull, F. W. Thye, M.

Kestin, M. Hegsted, D. M. Davidson, M. H.Davidson, L. D. Dugan, W. Demark-Wahnefried, and S. Beling, ‘‘Oat Productsand Lipid lowering—A Meta-analysis,’’Journal of the American Medical Association,267:3317–3325, 1992.

34. Saudia, T. L., B. R. Barfield, and J.Barger, ‘‘Effect of Oat Bran Consumption onTotal Serum Cholesterol Levels in HealthyAdults,’’ Military Medicine, 157:567–568,1992.

35. Spiller, G. A., J. W. Farquhar, J. E.Gates, and S. F. Nichols, ‘‘Guar Gum andPlasma Cholesterol, Effect of Guar Gum andan Oat Fiber Source on Plasma Lipoproteinsand Cholesterol in HypercholesterolemicAdults,’’ Arteriosclerosis and Thrombosis,11:1204–1208, 1991.

36. Stewart, F. M., J. M. Neutze, and R.Newsome-White, ‘‘The Addition of Oat Branto a Low Fat Diet has no Effect on LipidValues in Hypercholesterolaemic Subjects,’’New Zealand Medical Journal, 106:398–340,1992.

37. Swain, J. F., I. L. Rouse, C. B. Curley,and F. M. Sacks, ‘‘Comparison of the Effectsof Oat Bran and Low Fiber Wheat on SerumLipoprotein Levels and Blood Pressure’’ NewEngland Journal of Medicine, 322:147–52,1990.

38. Torronen, R., L. Kansanen, M.Uusitupa, O. Hanninen, O. Myllymaki, H.Harkonen, and Y. Malkki, ‘‘Effects of an OatBran Concentrate on Serum Lipids in Free-living Men with Mild to ModerateHypercholesterolaemia,’’ European Journal ofClinical Nutrition, 46:621–627, 1992.

39. Turnbull, W. H. and A. R. Leeds,‘‘Reduction of Total and LDL-cholesterol inPlasma by Rolled Oats,’’ Journal of ClinicalNutrition and Gastroenterology,, 2:1–4, 1987.

40. Grover, S. A., M. Abrahamowicz, L.Joseph, C. Brewer, L. Coupal, S. Suissa, ‘‘TheBenefits of Treating Hyperlipidemia toPrevent Coronary Heart Disease,’’ Journal ofthe American Medical Association, 267: 816–822, 1992.

41. Uusitupa, M. I. J., E. Ruuskanen, E.Makinen, J. Laitinen, E. Toskala, K. Kervinen,and A. Kesaniemi, ‘‘A Controlled Study onthe Effect of Beta-glucan-rich Oat Bran onSerum Lipids in HypercholesterolemicSubjects: Relation to Apolipoprotein EPhenotype,’’ Journal of the American Collegeof Nutrition, 11:651–659, 1992.

42. Van Horn, L., L. A. Emidy, K. Liu, Y.Liao, C. Ballew, J. King, and J. Stamler,‘‘Serum Lipid Response to a Fat-modified,Oatmeal-enhanced Diet,’’ PreventiveMedicine, 17:377–386, 1988.

43. Van Horn, L., K. Liu, D. Parker, L.Emidy, Y. Liao, W. H. Pan, D. Giumetti, J.Hewitt, and J. Stamler, ‘‘Serum LipidResponse to Oat Product Intake with a Fat-modified Diet,’’ Journal of the AmericanDietetic Association, 86:759–764, 1986.

44. Van Horn, L., A. Moag-Stahlberg, K.Liu, C. Ballew, K. Ruth, R. Hughes, J.Stamler, ‘‘Effects on Serum Lipids of AddingInstant Oats to Usual American Diets,’’American Journal of Public Health, 81:183–88, 1991.

45. Whyte, J., R. McArthur, D. Topping,and P. Nestel, ‘‘Oat Bran Lowers PlasmaCholesterol in Mildly Hypercholesterolemicmen,’’ Journal of the American DieteticAssociation, 92:446–449, 1992.

46. Zhang, J. G. Hallmans, H. Andersson,I. Bosaeur, P. Aman, P. Tidehag, R. Stenling,E. Lundin, and S. Dahlgren, ‘‘Effect of OatBran on Plasma Cholesterol and Bile AcidExcretion in Nine Subjects with Ileostomies,’’American Journal of Clinical Nutrition,56:99–105, 1992.

47. Sempos, C. T., J. I. Cleeman, M. D.Carroll, C. L. Johnson, P. S. Bachorik, D. J.Gordon, V. L. Burt, R. R. Briefel, C. D. Brown,K. Lippel, and B. M. Rifkind, ‘‘Prevalence ofHigh Blood Cholesterol Among U.S. Adults.An Update Based on Guidelines from theSecond Report of the National CholesterolEducation Program Adult Treatment Panel,’’Journal of the American Medical Association,269:3009–3014, 1993.

48. Ross, Russell, ‘‘Atherosclerosis,’’ inCecil-Textbook of Medicine, J. B.Wyngaarden, L. H. Smith, and J. C. Bennett,(editors), Harcourt Brace Jovanevich, Inc.,Philadelphia, p. 293, 1992.

49. Saltsman, Joyce J., CFSAN, FDA,Memorandum to file, May 19, 1995.

50. DHHS and USDA, ‘‘Nutrition and YourHealth: Dietary Guidelines for Americans,’’U.S. Gov. Printing Office, 273–930, 1990.

51. Schultz, William B., FDA, Letter toJohn R. Cady, National Food ProcessorsAssociation, May 11, 1995.

52. American Association of CerealChemists, Inc., ‘‘AACC Committee AdoptsOat Bran Definition,’’ Cereal Foods World,34:1033–1034, 1989.

53. Levy, A., CFSAN, FDA, ‘‘SummaryReport on Health Claims Focus Groups,’’June 15, 1995.

54. Derby, B., CFSAN, FDA, Memorandumto Victor Frattali, October 25, 1995.

55. Marlett, J. A., ‘‘Comparisons of DietaryFiber and Selected Nutrient Compositions ofOat and Other Grain Fractions,’’ In: Oat Bran,P. J. Wood (editor), published by theAmerican Association of Cereal Chemists,Inc., St. Paul, MN, p. 49–82, 1993.

56. Wood, P. J., ‘‘PhysiocochemicalCharacteristics and Physiological Propertiesof Oat (1–3), (1–4)-β-D-Glucan,’’ In: Oat Bran,P. J. Wood (editor), published by theAmerican Association of Cereal Chemists,Inc., St. Paul, MN, p. 83–112, 1993.

57. Shinnick, F. L. and J. A. Marlett,‘‘Physiological Responses to Dietary Oats inAnimal Models,’’ In: Oat Bran, P. J. Wood(editor), published by the AmericanAssociation of Cereal Chemists, Inc., St. Paul,MN, p. 113–138, 1993.

58. Vollendorf, N. W. and J. A. Marlett,‘‘Dietary Fiber Methodology andComposition of Oat Groats, Brans, andHulls,’’ Cereal Foods World, 36:565–569,1991.

59. Wood, P. J., J. T. Braaten, F. W. Scott,D. Riedel, and L. M. Poste, ‘‘Comparison ofViscous Properties of Oat and Guar Gum andthe Effects of These and Oat Bran onGlycemic Index,’’ Journal of Agriculture andFood Chemistry, 38:753–757, 1990.

60. Wood, P. J., J. T. Braaten, F. W. Scott,K. D. Riedel, M. S. Wloynetz, and M. W.Collings, ‘‘Effect of Dose and Modification ofViscous Properties of Oat Gum on BloodGlucose and Insulin Following an OralGlucose Load,’’ British Journal of Nutrition,72:731–743, 1994.

61. McIntosh, G. H., J. Whyte, R. McArthur,and P. J. Nestel, ‘‘Barley and Wheat Foods:


Influence on Plasma CholesterolConcentrations in HypercholesterlemicMen,’’ American Journal of ClinicalNutrition, 53:1205–1209, 1991. (Seecomments C–1177 and CR1).

62. Chen, W. L., J. W. Anderson, and M.R. Gould, ‘‘Effects of Oat Bran, Oat Gum andPectin on Lipid Metabolism of Cholesterol-Fed Rats,’’ Nutrition Reports International,24:1093–1098, 1981.

63. Fadel, J. G., R. K. Newman, C. W.Newman, and A. E. Barnes,‘‘Hypocholesterolemic Effects of β-glucans inDifferent Barley Diets Fed to Brolier Chicks,’’Nutrition Reports International, 35:1049–1058, 1987.

64. Newman, R. K., S. E. Lewis, C. W.Newman, R. J. Boik, and R. T. Ramage,‘‘Hypocholesterolemic Effect of Barley Foodson Healthy Men,’’ Nutrition ReportsInternational, 39:749–759, 1989.

65. McIntyre, A., G. P. Young, T. Taranto,P. R. Gibson, and P. B. Ward, ‘‘DifferentFibers have Different Regional Effects onLuminal Contents of Rat Colon,’’Gastroenterology, 101:1274–1281, 1991.

66. Shinnick, F. L., J. M. Longacre, S. L.Ink, and J. A. Marlett, ‘‘Oat Fiber:Composition Versus Physiological Functionin Rats,’’ Journal of Nutrition, 118:144–151,1988.

67. Wang, L., R. K. Newman, C. W.Newman, and P. J. Hofer. ‘‘Barley β-glucansAlter Intestinal Viscosity and Reduce PlasmaCholesterol Concentrations in Chicks,’’Journal of Nutrition, 122:2292–2297, 1992.

68. Gallaher, D. D., ‘‘Intestinal ContentsViscosity of Rats Fed Oat-based BreakfastCereals,’’ Unpublished, November 26, 1996.(See comment C-1412).

69. Wood, P. J., J. T. Braaten, F. W. Scott,K. D. Riedel, M. S. Wolynetz, and M. W.Collins, ‘‘Effect of Dose and Modification ofViscous Properties of Oat Gum on PlasmaGlucose and Insulin Following an OralGlucose Load,’’ British Journal of Nutrition,72:731–743, 1994.

70. Reynolds, H. R., ‘‘The Effect of WholeGrain Oat Cereal on Serum Lipids,’’Unpublished study, 1996. (See comments C–1197 and CR5).

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72. Gallaher, D. D., C. A. Hassel, and K. J.Lee, ‘‘Relationships Between Viscosity ofHydroxypropyl Methylcellulose and PlasmaCholesterol in Hamsters,’’ Journal ofNutrition, 123:1732–1738, 1993.

73. Carr, T. P., D. D. Gallaher, C. H. Yang,and C. A. Hassel, ‘‘Increased IntestinalContents Viscosity Reduces CholesterolAbsorption Efficiency in Hamsters fedHydroxypropyl Methylcellulose,’’ Journal ofNutrition, 126:1463–1469, 1996.

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75. USDA Nutrient Database for StandardReference, Release 11, September, 1996.

76. Wood, P. J., J. Weisz, P. Fedec, and V.D. Burrows, ‘‘Large-Scale Preparation and

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Food labeling, Incorporation byreference, reporting and recordkeepingrequirements.

Therefore, under the Federal Food,Drug, and Cosmetic Act and underauthority delegated to the Commissionerof Food and Drugs, 21 CFR part 101 isamended as follows:

PART 101—FOOD LABELING

1. The authority citation for 21 CFRPart 101 is revised to read as follows:

Authority: Secs. 4, 5, 6 of the FairPackaging and Labeling Act (15 U.S.C. 1453,1454, 1455); secs. 201, 301, 402, 403, 409,501, 502, 505, 701 of the Federal Food, Drug,and Cosmetic Act (21 U.S.C. 321, 342, 343,348, 351, 352, 355, 371).

2. New § 101.81 is added to subpart Eto read as follows:

§ 101.81 Health claims: Soluble fiber fromwhole oats and risk of coronary heartdisease (CHD).

(a) Relationship between diets low insaturated fat and cholesterol thatinclude soluble fiber from whole oatsand risk of coronary heart disease—(1)Cardiovascular disease means diseasesof the heart and circulatory system.Coronary heart disease (CHD) is one ofthe most common and serious forms ofcardiovascular disease and refers todiseases of the heart muscle andsupporting blood vessels. High bloodtotal cholesterol and low densitylipoprotein (LDL)-cholesterol levels areassociated with increased risk ofdeveloping coronary heart disease. HighCHD rates occur among people withhigh total cholesterol levels of 240milligrams per deciliter (mg/dL) (6.21(mmol/L)) or above and LDL-cholesterollevels of 160 mg/dL (4.13 mmol/L) orabove. Borderline high risk totalcholesterol levels range from 200 to 239mg/dL (5.17 to 6.18 mmol/L) and 130 to159 mg/dL (3.36 to 4.11 mmol/L) ofLDL-cholesterol. The scientific evidenceestablishes that diets high in saturatedfat and cholesterol are associated withincreased levels of blood total- and LDL-cholesterol and, thus, with increasedrisk of CHD.

(2) Populations with a low incidenceof CHD tend to have relatively lowblood total cholesterol and LDL-cholesterol levels. These populationsalso tend to have dietary patterns that

are not only low in total fat, especiallysaturated fat and cholesterol, but arealso relatively high in fiber-containingfruits, vegetables, and grain products,such as whole oat products.

(3) Scientific evidence demonstratesthat diets low in saturated fat andcholesterol may reduce the risk of CHD.Other evidence demonstrates that theaddition of soluble fiber from wholeoats to a diet that is low in saturated fatand cholesterol may also help to reducethe risk of CHD.

(b) Significance of the relationshipbetween diets low in saturated fat andcholesterol that include soluble fiberfrom whole oats and risk of CHD—(1)CHD is a major public health concern inthe United States. It accounts for moredeaths than any other disease or groupof diseases. Early management of riskfactors for CHD is a major public healthgoal that can assist in reducing risk ofCHD. High blood total and LDL-cholesterol are major modifiable riskfactors in the development of CHD.

(2) Intakes of saturated fat exceedrecommended levels in the diets ofmany people in the United States. Oneof the major public healthrecommendations relative to CHD risk isto consume less than 10 percent ofcalories from saturated fat and anaverage of 30 percent or less of totalcalories from all fat. Recommendeddaily cholesterol intakes are 300milligrams (mg) or less per day.Scientific evidence demonstrates thatdiets low in saturated fat andcholesterol are associated with lowerblood total and LDL-cholesterol levels.Soluble fiber from whole oats, whenadded to a low saturated fat andcholesterol diet, also helps to lowerblood total and LDL-cholesterol levels.

(c) Requirements—(1) Allrequirements set forth in § 101.14 shallbe met.

(2) Specific requirements—(i) Natureof the claim. A health claim associatingdiets low in saturated fat andcholesterol that include soluble fiberfrom whole oats with reduced risk ofheart disease may be made on the labelor labeling of a food described inparagraph (c)(2)(iii) of this section,provided that:

(A) The claim states that diets low insaturated fat and cholesterol thatinclude soluble fiber from whole oats‘‘may’’ or ‘‘might’’ reduce the risk ofheart disease;

(B) In specifying the disease, theclaim uses the following terms: ‘‘heartdisease’’ or ‘‘coronary heart disease’’;

(C) In specifying the substance, theclaim uses the term ‘‘soluble fiber’’qualified by either the use of the nameof the eligible source of whole oat


soluble fiber (provided in paragraph(c)(2)(ii)) of this section or the name ofthe food product;

(D) In specifying the fat component,the claim uses the terms ‘‘saturated fat’’and ‘‘cholesterol’’;

(E) The claim does not attribute anydegree of risk reduction for CHD to dietslow in saturated fat and cholesterol thatinclude soluble fiber from whole oats;and

(F) The claim does not imply thatconsumption of diets low in saturatedfat and cholesterol that include solublefiber from whole oats is the onlyrecognized means of achieving areduced risk of CHD.

(ii) Nature of the substance. Eligiblesources of soluble fiber.

(A) Beta (β) glucan soluble fiber fromthe whole oat sources listed below. β-glucan soluble fiber will be determinedby method No. 992.28 from the ‘‘OfficialMethods of Analysis of the Associationof Official Analytical ChemistsInternational,’’ 16th ed. (1995), which isincorporated by reference in accordancewith 5 U.S.C. 552(a) and 1 CFR part 51.Copies may be obtained from theAssociation of Official AnalyticalChemists International, 481 NorthFrederick Ave., suite 500, Gaithersburg,MD 20877-2504, or may be examined atthe Center for Food Safety and AppliedNutrition’s Library, 200 C St. SW., rm.3321, Washington, DC, or at the Officeof the Federal Register, 800 NorthCapitol St. NW., suite 700, Washington,DC;

(1) Oat bran. Oat bran is produced bygrinding clean oat groats or rolled oatsand separating the resulting oat flour bysuitable means into fractions such thatthe oat bran fraction is not more than 50percent of the original starting materialand provides at least 5.5 percent (dryweight basis (dwb)) β-glucan solublefiber and a total dietary fiber content of16 percent (dwb), and such that at leastone-third of the total dietary fiber issoluble fiber;

(2) Rolled oats. Rolled oats, alsoknown as oatmeal, produced from 100percent dehulled, clean oat groats bysteaming, cutting, rolling, and flaking,and provides at least 4 percent (dwb) ofβ-glucan soluble fiber and a total dietaryfiber content of at least 10 percent.

(3) Whole oat flour. Whole oat flouris produced from 100 percent dehulled,

clean oat groats by steaming andgrinding, such that there is nosignificant loss of oat bran in the finalproduct, and provides at least 4 percent(dwb) of β-glucan soluble fiber and atotal dietary fiber content of at least 10percent (dwb).

(B) [Reserved](iii) Nature of the Food Eligible to

Bear the Claim.(A) The food shall contain at least

0.75 gram (g) per reference amountcustomarily consumed of whole oatsoluble fiber from the eligible sourceslisted in paragraph (c)(2)(ii) of thissection;

(B) The amount of soluble fiber shallbe declared in the nutrition label,consistent with § 101.9(c)(6)(i)(A).

(C) The food shall meet the nutrientcontent requirements in § 101.62 for a‘‘low saturated fat,’’ ‘‘low cholesterol,’’and ‘‘low fat’’ food.

(d) Optional information—(1) Theclaim may state that the development ofheart disease depends on many factorsand may identify one or more of thefollowing risk factors for heart diseaseabout which there is general scientificagreement: A family history of CHD;elevated blood total and LDL-cholesterol; excess body weight; highblood pressure; cigarette smoking;diabetes; and physical inactivity. Theclaim may also provide additionalinformation about the benefits ofexercise and management of bodyweight to help lower the risk of heartdisease;

(2) The claim may state that therelationship between intake of diets lowin saturated fat and cholesterol thatinclude soluble fiber from whole oatsand reduced risk of heart disease isthrough the intermediate link of ‘‘bloodcholesterol’’ or ‘‘blood total- and LDL-cholesterol;’’

(3) The claim may includeinformation from paragraphs (a) and (b)of this section, which summarize therelationship between diets low insaturated fat and cholesterol thatinclude soluble fiber from whole oatsand coronary heart disease and thesignificance of the relationship;

(4) The claim may specify the nameof the eligible soluble fiber;

(5) The claim may state that a diet lowin saturated fat and cholesterol thatincludes soluble fiber from whole oats

is consistent with ‘‘Nutrition and YourHealth: Dietary Guidelines forAmericans,’’ U.S. Department ofAgriculture (USDA) and Department ofHealth and Human Services (DHHS),Government Printing Office (GPO);

(6) A claim based on β-glucan solublefiber from whole oats may state that anintake of 3 g or more per day of β-glucansoluble fiber from whole oats may helpreduce the risk of CHD, provided thatthe claim also states the contributionone serving of the product makes to thisspecified intake level for β-glucansoluble fiber;

(7) The claim may state thatindividuals with elevated blood total-and LDL-cholesterol should consulttheir physicians for medical advice andtreatment. If the claim defines high ornormal blood total- and LDL-cholesterollevels, then the claim shall state thatindividuals with high blood cholesterolshould consult their physicians formedical advice and treatment;

(8) The claim may includeinformation on the number of people inthe United States who have heartdisease. The sources of this informationshall be identified, and it shall becurrent information from the NationalCenter for Health Statistics, the NationalInstitutes of Health, or ‘‘Nutrition andYour Health: Dietary Guidelines forAmericans,’’ USDA and DHHS, GPO;

(e) Model health claim. The followingmodel health claims may be used infood labeling to describe therelationship between diets low insaturated fat and cholesterol thatinclude soluble fiber from whole oatsand reduced risk of heart disease:

(1) Soluble fiber from foods such as[name of soluble fiber source fromparagraph (c)(2)(ii) of this section orname of food product], as part of a dietlow in saturated fat and cholesterol,may reduce the risk of heart disease.

(2) Diets low in saturated fat andcholesterol that include soluble fiberfrom [name of soluble fiber source fromparagraph (c)(2)(ii) of this section orname of food product] may reduce therisk of heart disease.

Dated: January 9, 1997.William B. Schultz,Deputy Commissioner for Policy.[FR Doc. 97–1598 Filed 1–22–97; 8:45 am]BILLING CODE 4160–01–F

i

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FEDERAL REGISTER PAGES AND DATES, JANUARY

1–300..................................... 2301–592................................. 3593–888................................. 6889–1030............................... 71031–1238............................. 81239–1382............................. 91383–1658.............................101659–1826.............................131827–2006.............................142007–2264.............................152265–2546.............................162547–2890.............................172891–3192.............................213193–3440.............................223441–3602.............................23

CFR PARTS AFFECTED DURING JANUARY

At the end of each month, the Office of the Federal Registerpublishes separately a List of CFR Sections Affected (LSA), whichlists parts and sections affected by documents published sincethe revision date of each title.

3 CFR

Proclamations:6966.........................3191–31926967...................................34416968...................................3443Executive Orders:July 2, 1910 (Revoked

by PLO 7236).................305312543 (Continued by

Notice of Jan. 2,1997) ................................587

12544 (Continued byNotice of Jan. 2,1997) ................................587

12947 (Continued byNotice of Jan. 21,1997) ..............................3439

Presidential Determinations:No. 97–11A of

December 6, 1996 ...........299No. 97–14 of

December 27,1996 ...............................1379

No. 97–15 ofDecember 27,1996 ...............................1381

5 CFR

315.....................................3193362.....................................3193532.....................................31952640...................................1361Proposed Rules:213.....................................1695338.....................................1695831.....................................2323844.....................................23232470...................................25472471...................................25472472...................................25472473...................................25472634...................................2048

7 CFR

2.........................................103133.......................................103251.............................2891, 2896210.......................................889226.......................................889300.......................................593319.......................................593457.....................................2007729.....................................2719925.....................................2547929.......................................915932...........................1239, 2549944.....................................1239959.......................................916982.....................................1035985.....................................1246997.....................................1249998.....................................1249

999.....................................12491011.....................................9181049.....................................9181079.....................................9181124.........................................11205...................................16591439...................................31951464...................................31971499...................................2719Proposed Rules:400.....................................2052401.......................................333414.....................................2055441.....................................2059443.........................................48445.......................................338457.................................48, 333906.........................................55985.......................................942

8 CFR

Proposed Rules:1...........................................4443...........................................444103.......................................444204.......................................444207.......................................444208.......................................444209.......................................444211.......................................444212.......................................444213.......................................444214.......................................444216.......................................444217.......................................444221.......................................444223.......................................444232.......................................444233.......................................444234.......................................444235.......................................444236.......................................444237.......................................444238.......................................444239.......................................444240.......................................444241.......................................444242.......................................444243.......................................444244.......................................444245.......................................444246.......................................444248.......................................444249.......................................444251.......................................444252.......................................444253.......................................444274a.....................................444286.......................................444287.......................................444299.......................................444316.......................................444318.......................................444

ii Federal Register / Vol. 62, No. 15 / Thursday, January 23, 1997 / Reader Aids

329.......................................444

9 CFR

78.......................................255091.......................................3445160.......................................597161.......................................597304.....................................2551308.....................................2551310.....................................2551320.....................................2551327.....................................2551381.....................................2551416.....................................2551417.....................................2551Proposed Rules:78.......................................1406160.....................................1817161.....................................1817200.....................................1845

10 CFR

150.....................................1662170.....................................1662Proposed Rules:1045...................................2252

12 CFR

19.......................................3199932...........................................4Proposed Rules:202.........................................56205.....................................3242213.........................................62225.....................................2622

13 CFR

120.......................................301Proposed Rules:121.....................................2979125.....................................2979

14 CFR

25.......................................181739...10, 15, 302, 304, 307, 600,

602, 604, 1038, 1039, 1041,1044, 1275, 1277, 1278,1383, 2007, 2009, 2552,2898, 3200, 3204, 3209,3446, 3448, 3449, 3451

71 .....309, 607, 608, 609, 1046,1047, 1048, 1827, 1828,

2265, 289991.......................................119293.......................................244597 .......1049, 1050, 1051, 2445,

3452, 3454, 3455119.....................................1192121.....................................1192135.....................................1192382.........................................16Proposed Rules:39 .......343, 945, 947, 949, 951,

1061, 1298, 1299, 1695,1859, 1861, 1864, 1866,

2324, 2981, 298271 .....70, 347, 348, 1063, 1064,

1065, 1066, 1067, 1068,1069, 1070, 1071, 1072,

1073, 1698, 1699107.....................................1024108.....................................1024

15 CFR

801.....................................1665

902.....................................1829

16 CFRProposed Rules:1210...................................2327

17 CFR200.............................520, 1384228.......................................520229.......................................520230.......................................520240 ..................520, 1279, 1385242.......................................520Proposed Rules:Ch. II ..................................13011.........................................2334228.....................................3152229.....................................3152230.....................................3152239.....................................3152240.....................................2633

18 CFR33.......................................128134.......................................128135.......................................128136.......................................128137.........................................610292.....................................1281300.....................................12811314.....................................920Proposed Rules:284.....................................1073

19 CFRProposed Rules:7.........................................308210.......................................3082145.....................................3082173.....................................3082174.....................................3082181.....................................3082191.....................................3082

20 CFR416.............................309, 1053Proposed Rules:404...............................349, 352416.......................................352602.....................................2544640.....................................2544650.....................................2544718.....................................3338722.....................................3338725.....................................3338726.....................................3338727.....................................3338

21 CFR

5.................................923, 2554101...........................2218, 3584111.....................................2218165.....................................2266175.....................................2011178...........................2011, 2014310.....................................2218529.......................................611579.......................................611872.....................................2900Proposed Rules:589.......................................552812.......................................9531301.........................1024, 20641304.........................1024, 2064

22 CFR

42.........................................613

228.......................................314

23 CFR

655.....................................1364Proposed Rules:655.......................................691

24 CFR

3282...................................3456Proposed Rules:100.....................................2000

25 CFR

151.....................................1057

26 CFR

1 .........17, 361, 615, 923, 2267,2275, 3458

31...........................................2253...........................................25602 ......................22, 923, 2275Proposed Rules:Ch. I ...................................35631.........71, 72, 77, 81, 694, 955,

1700, 1701, 1702, 2064,2068, 2335, 2336, 2633,

324453...........................................84301 ......................77, 955, 2068602.........................................81

27 CFR

55.......................................1386

28 CFR

9...........................................31416.......................................2903

29 CFR

102...........................1361, 16681910...................................14941915...................................14941926...................................14941952...................................25584044...................................2016Proposed Rules:Ch. XXV.............................3563

30 CFR

935.....................................16684044...................................2016Proposed Rules:902.....................................1074926.....................................1408935.....................................3491

31 CFR

Ch. V..................................2903354.......................................621356.......................................846357.........................................26560.....................................1832Proposed Rules:103.....................................3249

32 CFR

57.......................................2565150.....................................2017199.......................................625220.......................................941813.......................................631818.......................................631844.......................................631

33 CFR

117...........................3461, 3462

157...........................1622, 3463

36 CFR7.........................................2579

38 CFRProposed Rules:21.............................1075, 1303

39 CFR20.......................................167460.................................631, 638111.......................................645

40 CFR1.........................................18322.........................................183221.......................................183222.......................................183252 ...........646, 648, 1150, 1187,

2305, 2581, 2585, 2587,2591, 2593, 2597, 2910,2915, 2916, 3211, 3215,

3216, 322060.......................................183261.......................................183262.......................................183263.............................1835, 272270.......................................138776.......................................346381.......................................529782.......................................2310147.....................................1832180...........................1284, 1288261.....................................1678262.....................................1832268.....................................1992272.....................................1832435.....................................1681707.....................................1832763.....................................1832799.....................................2607Proposed Rules:51.........................................21052 .........695, 1420, 2633, 2634,

2635, 2636, 2984, 3252,32530, 3254

53.......................................206858.......................................206860...............................960, 186863 ....................960, 1869, 207481.......................................263689.........................................200194...........................2988, 2989260.......................................960261.......................................960264.......................................960265.......................................960266.......................................960270.......................................960271.......................................960372...............................365, 366721.....................................1305

41 CFR

Ch. 101 ..............................2022101–20...............................1057101–38.................................322

42 CFR

413.........................................26435.....................................1682Proposed Rules:Ch. IV.................................3563

43 CFR

10.......................................1820

iiiFederal Register / Vol. 62, No. 15 / Thursday, January 23, 1997 / Reader Aids

Proposed Rules:2800...................................26362920...................................26363100...................................17054100...................................26364300...................................26364700...................................26365460...................................26365510...................................26368200...................................26368340...................................26368350...................................26368360...................................26368370...................................26368560...................................26369210...................................26369260...................................2636

44 CFR

64.............................1685, 168865.............................3223, 322667.......................................3228Proposed Rules:67.............................2989, 3226

45 CFR

1311...................................1399

46 CFR

8.........................................333531.......................................333571.......................................333591.......................................3335107.....................................3335572.......................................328

47 CFR

1.........................................322324.........................................65332.......................................291851.........................................66253.............................2918, 292773 ............329, 664, 2611, 296990.......................................2027

Proposed Rules:22.........................................69626.........................................69653.......................................299161.......................................142369.......................................263673 .....84, 372, 373, 1871, 2639,

2996

48 CFR

Ch. 1............................224, 2751 ..........................226, 233, 2712...........................................2563...................................226, 2334 ..........................226, 233, 2575 ..........................261, 262, 2716 ..........................233, 256, 2628...........................................2339 ..........................226, 233, 26611.........................................26212 ................226, 233, 257, 26213.........................................26214 ................226, 233, 261, 27115 ................226, 256, 257, 26116.................................233, 25717.........................................26119.................................226, 23323.........................................23324.........................................25625 ................257, 261, 267, 26827.................................233, 26129.........................................23331 ........................233, 257, 26932.........................................23333.................................226, 27036.................................233, 27137.................................226, 23339.........................................27342.................................233, 27443.........................................22645.........................................23346.........................................25747.........................................23349.........................................233

52 ........226, 233, 257, 261, 27353.................................226, 233203.....................................2611515...........................2611, 2612216...........................1058, 1817219.....................................2612225 .....2612, 2615, 2616, 2856,

2857226.....................................2612227.....................................2612233.....................................2612236...........................2856, 2857239.....................................1058252 .....2611, 2612, 2616, 2856,

2857904.....................................2310906.....................................2310908.....................................2310915.....................................2310923.....................................2310925.....................................2310945.....................................2310952.....................................2310970.....................................23101815...................................34641816...................................34641852...................................34641870...................................3464Proposed Rules:225.......................................374231.......................................374242.......................................374

49 CFR

1.........................................261727...........................................16107.....................................2970171 ................1208, 1217, 2970172.....................................1217173...........................1208, 1217174.....................................1217175.....................................1217176.....................................1217177.....................................1217

180.....................................1208192.....................................2618232.......................................278382.....................................1293383.....................................1293390.....................................1293541.....................................1690571 ..................798, 1401, 29771002...................................34871185...................................2041Proposed Rules:Ch. XI.................................3492194.....................................2989538.......................................375571 ..................807, 1077, 2996595.......................................831

50 CFR

17 .........665, 1644, 1647, 1691,2313, 3241,

36.......................................1838227.....................................1296229.........................................33259.......................................330285.............................331, 3490600.....................................3335622.............................689, 1402648 ................1403, 1829, 2619649.....................................1403660.....................................3335679...........................2043, 2445Proposed Rules:17.......................................326324.......................................2354300.......................................382600.............................700, 1306622 ....................384, 720, 2999630.....................................1705648...........................1424, 3495660.......................................700678 ..................724, 1705, 1872679 ......................85, 724, 2719

iv Federal Register / Vol. 62, No. 15 / Thursday, January 23, 1997 / Reader Aids

REMINDERSThe items in this list wereeditorially compiled as an aidto Federal Register users.Inclusion or exclusion fromthis list has no legalsignificance.

RULES GOING INTOEFFECT TODAY

AGRICULTUREDEPARTMENTAnimal and Plant HealthInspection ServiceExportation and importation of

animals and animalproducts:Cattle for slaughter;

tuberculosis andbrucellosis pre-export testrequirements elimination;published 1-23-97

HEALTH AND HUMANSERVICES DEPARTMENTFood and DrugAdministrationFood for human consumption:

Food labeling--Health claims; oat

products and coronaryheart disease; published1-23-97

NATIONAL AERONAUTICSAND SPACEADMINISTRATIONAcquisition regulations:

FAR supplement (NFS);rewriteFederal regulatory reform;

published 1-23-97STATE DEPARTMENTFishermen’s Protective Act

Guaranty Fund procedures;published 9-24-96

TRANSPORTATIONDEPARTMENTCoast GuardDrawbridge operations:

Florida; published 1-23-97TRANSPORTATIONDEPARTMENTSurface TransportationBoardPractice and procedure:

Abandonment anddiscontinuance of rail linesand rail transportation;envirionmental laws;published 12-24-96

COMMENTS DUE NEXTWEEK

AGRICULTUREDEPARTMENTCommodity CreditCorporationLoan and purchase programs:

Wildlife Habitat IncentivesProgram; comments dueby 1-27-97; published 12-13-96

AGRICULTUREDEPARTMENTFederal Crop InsuranceCorporationCrop insurance regulations:

Fresh market tomatoes;comments due by 1-29-97; published 12-30-96

AGRICULTUREDEPARTMENTNatural ResourcesConservation ServiceWildlife Habitat Incentives

Program; comments due by1-27-97; published 12-13-96

COMMERCE DEPARTMENTNational Oceanic andAtmospheric AdministrationFishery caonservation and

management:Alaska; fisheries of

Exclusive Economic Zone--Alaska scallop; comments

due by 1-30-97;published 1-15-97

Fishery conservation andmanagement:Alaska; fisheries of

Exclusive Economic Zone--Bering Sea and Aleutian

Islands groundfish;comments due by 1-31-97; published 12-2-96

Caribbean, Gulf, and SouthAtlantic fisheries--South Atlantic Fishery

Management Council;hearing; comments dueby 1-27-97; published1-21-97

COMMODITY FUTURESTRADING COMMISSIONContract markets:

Contract market rule reviewprocedures; commentsdue by 1-31-97; published1-16-97

ENVIRONMENTALPROTECTION AGENCYClean Air Act:

Acid rain program--Contiuous emission

monitoring; excessemissions; appealprocedures; commentsdue by 1-27-97;published 12-27-96

Pesticides; tolerances in food,animal feeds, and rawagricultural commodities:Metolachlor; comments due

by 1-28-97; published 11-29-96

Solid wastes:

Beverage containers andresource recoveryfacilities; managementguidelines--Federal regulatory reform;

CFR Parts removed;comments due by 1-30-97; published 12-31-96

Federal regulatory review;comments due by 1-30-97; published 12-31-96

Superfund program:National oil and hazardous

substances contingencyplan--National priorities list

update; comments dueby 1-29-97; published12-30-96

North Dakota; commentsdue by 1-27-97;published 12-26-96

Toxic substances:Testing requirements--

Pharmacokinetics studies;comments due by 1-31-97; published 10-18-96

FARM CREDITADMINISTRATIONFederal regulatory reform;

comments due by 1-31-97;published 12-20-96

FEDERALCOMMUNICATIONSCOMMISSIONTelecommunications Act of

1996; implementation:Common carrier services--

National Exchange CarrierAssociation, Inc., Boardof Directors; changes tomake Board morerepresentative oftelecommunicationsindustry; comments dueby 1-27-97; published1-17-97

FEDERAL ELECTIONCOMMISSIONReports by policital

committees:Best efforts; $200+

contributors identification;comment period extended;comments due by 1-31-97; published 12-30-96

FEDERAL HOUSINGFINANCE BOARDFederal home loan bank

system:Community support

requirements; commentsdue by 1-27-97; published11-27-96

FEDERAL RESERVESYSTEMEqual credit opportunity

(Regulation B):Creditor compliance with

Equal Credit Opportunity

Act; legal privilege forinformation; commentsdue by 1-31-97; published1-2-97

Securities credit transactions(Regulations G, T, and U);comments due by 1-31-97;published 12-23-96

Truth in lending (RegulationZ):Improvement of disclosures;

comments due by 1-30-97; published 12-31-96

FEDERAL TRADECOMMISSIONIndustry guides:

Feather and down products;comments due by 1-28-97; published 10-28-96

HEALTH AND HUMANSERVICES DEPARTMENTHealth Care FinancingAdministrationMedicare:

Medicare paymentsuspension charges anddetermination of allowableinterest expenses;comments due by 1-31-97; published 12-2-96

HOUSING AND URBANDEVELOPMENTDEPARTMENTFederal National Mortgage

Association (Fannie Mae)and Federal Home LoanMortgage Corporation(Freddie Mac):Book-entry procedures;

securities issuance,recordation, and transfer;comments due by 1-31-97; published 12-2-96

Noncitizens; financialassistance restrictions;comments due by 1-28-97;published 11-29-96Correction; comments due

by 1-28-97; published 12-6-96

Public and Indian housing:Certificate and voucher

programs (Section 8)--Management assessment

program; comments dueby 1-31-97; published12-2-96

Real Estate SettlementProcedures Act:Improvement of disclosures;

comments due by 1-30-97; published 12-31-96

INTERIOR DEPARTMENTSurface Mining Reclamationand Enforcement OfficePermanent program and

abandoned mine landreclamation plansubmissions:Iowa; comments due by 1-

27-97; published 12-26-96

vFederal Register / Vol. 62, No. 15 / Thursday, January 23, 1997 / Reader Aids

PERSONNEL MANAGEMENTOFFICE

Execepted service:

Schedule A authority fortemporary organizations;comments due by 1-31-97; published 12-2-96

POSTAL RATE COMMISSION

Practice and procedure:

Omnibus rate proceeding--

Cost attribution methodsand rate designprinciples; commentsdue by 1-31-97;published 12-24-96

SECURITIES ANDEXCHANGE COMMISSION

Practice and procedure:

Regulatory Flexibility Act;list; comments due by 1-31-97; published 1-9-97

TRANSPORTATIONDEPARTMENTAir travel; nondiscrimination on

basis of handicap:Seating accommodations

and collapsible electricwheelchair stowage;comments due by 1-30-97; published 11-1-96

TRANSPORTATIONDEPARTMENTFederal AviationAdministrationAirworthiness directives:

Avions Pierre Robin;comments due by 1-31-97; published 11-13-96

Boeing; comments due by1-29-97; published 11-29-96

Mitsubishi; comments dueby 1-27-97; published 12-4-96

Textron Lycoming;comments due by 1-31-97; published 12-2-96

Class C and Class Dairspace; comments due by1-29-97; published 12-9-96

Class D airspace; commentsdue by 1-30-97; published12-24-96

Class E airspace; commentsdue by 1-28-97; published12-16-96Correction; comments due

by 1-27-97; published 12-16-96

TRANSPORTATIONDEPARTMENTNational Highway TrafficSafety AdministrationMotor vehicle safety

standards:Occupant crash protection--

Smart air bags, vehicleswithout; warning labels,manual cutoff switches,etc.; correction;comments due by 1-27-97; published 12-11-96

TREASURY DEPARTMENTComptroller of the CurrencyFees assesment; national and

District of Columbia banks:Non-lead banks; lower

assessments; commentsdue by 1-31-97; published12-2-96

TREASURY DEPARTMENTThrift Supervision OfficeEconomic Growth and

Regulatory PaperworkReduction Act;implementation; commentsdue by 1-27-97; published11-27-96

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