FTC Federal Register notice, July 25, 1980, 45 FR 49589

Page 95

BILL]NO CODE 6450-01-M FEDERAL TRADE COMMISSION 16 CFR Part 13 [File No. 761-0087] American Art Clay Co.* Inc.; Consent Agreement With Analysis To Aid Public Comment Correction In FR Doc. 80-19767 appearing on page 44317 in the issue of Tuesday, July 1,1980 make the following correction: In the third column of page 44319, the thirteenth line from the top of the page now reading “. . . institutions that purchase chalks . . .” should have read “. . . institutions that purchase chalks, crayons. . .”.

BILLING CODE 1505-01-M COMMODITY FUTURES TRADING COMMISSION 17 CFR Ch. I Improving Government Regulations; Semiannual Agenda of Regulations AGENCY: Commodity Futures Trading Commission.

a c t io n : Publication of Commission agenda.

SUMMARY: The Commodity Futures Trading Commission, in accordance with its decision to comply voluntarily with the spirit of Executive Order 12044, is publishing a semiannual agenda describing some of the more significant matters to be acted on by the Commission within the next six months. The purpose of this publication is to provide the public with early and meaningful opportunities to participate in Or comment on new and revised regulations.

FOR FURTHER INFORMATION CONTACT: Jane Stuckey, Office of the Secretariat, Commodities Futures Trading Commission, 2033 K Street, N. W., Washington, D.C. 20581 (202-254-6314). SUPPLEMENTARY INFORMATION: Executive Order 12044 sets forth a program of regulatory reform. Among other things, it directs agencies to provide more meaningful opportunities for public participation. One suggested method for achieving this goal is the provision of timely notice of regulatory action through publication of semiannual agendas. The Commission, an independent regulatory agency, has determined to comply voluntarily with tiie spirit of the Executive Order, although it is not legally bound to do so. The Commission published its first semiannual agenda on January 23,1979 (44 FR 4752). Subsequently, changes in the Commission’s internal agenda­ setting procedures were effected, as a result of which the Commission now establishes its calendar on a monthly basis. Because of these changes, the Commission is no longer able to project the dates on which particular matters will be considered more than a month in advance. Nevertheless, to facilitate public participation, the Commission believes it is desirable to describe generally some of the more significant matters it will consider in the next six months. These matters include the following:

1. Regulation of Leverage Transactions The Commission has directed its staff to develop, a program for regulating gold and silver leverage transactions. These proposals will be considered by the Commission in the fall of 1980. A moratorium on the entry of new firms into the gold and silver leverage business which were not in that business on June 1,1978, has been in effect since January 4,1979. The Commission had previously announced its intention to regulate gold and silver leverage transactions as contracts for future delivery under the Commodity Exchange Act effective January 1,1980, but has delayed implementation of this approach until October, 1982. Legislative Authority: Section 19 of the Commodity Exchange Act, as . amended, Pub. L No. 95-405, Section 23, 92 Stat. 876-77.

Agency Contact: David Merrill, Office of the General Counsel, 2033 K Street, NW., Washington, D.C. 20581 (202-254- 7602).

Outstanding FR N otices: Regulation of Leverage Transactions as Contracts for Future Delivery, 44 FR 44177 (July 27, 1979); Regulation of Leverage Transactions as Contracts for Future Delivery; Postponement of Effective Date, 44 FR 69304 (December 3,1979). 2. Regulation of Foreign Brokers and Traders The Commission has proposed rules which would require domestic futures commission merchants who carry accounts for foreigners to obtain certain information on behalf of the Commission. If the information were not provided to the Commission on request, the FCM would be required to liquidate its customer’s account. Public comments have been requested on this proposal and whether information which FCM’s must make available should be maintained by the FCM’s on a routine basis or obtained by the FCM’s only when specifically requested by the Commission. The Commission will

Page 96

49590 Federal Register / VoL 45, No. 145 / Friday, July 25, 1980 / Proposed Rules decide whether to adopt these rules in final form in the fall of 1980. Legislative Authority: Sections 4g, 4i, 5, 5a, and 8a of the Commodity Exchange Act, 7 U.S.C. 6g, 6i, 7, 7a, and 12a.

Agency Contact: Maureen A. Donley, Office of the General Counsel, 2033 K Street, N.W., Washington, D.C. 20581 (202-254-9880).

Outstanding FR N otice: Futures Commission Merchants—Duties Concerning Accounts Carried for Foreign Brokers and Traders; Proposed Rule, 45 FR 31731 (May 14,1980). 3. Review of Guideline No. 1—Criteria for Determining Whether a Board of Trade Meets the Economic Purpose and Public Interest Tests for Contract Market Designation The Commodity Exchange Act requires a board of trade seeking to become a market for a particular futures contract to show that trading in the contract would not be contrary to the public interest. Guideline No. 1 sets forth the general criteria to be met by a contract market in making such a showing. They include an economic purpose test, a demonstration of the commercial viability of the contract and a showing that transactions for future delivery in the commodity will not be contrary to the public interest. The Commission’s staff has been directed to prepare recommendations concerning possible revision of the Guideline which would define with more specificity die showing required to be made by a board of trade. These recommendations will be considered in the fall of 1980. Legislative Authority: Sections 5, 5a, 5b, 6 and 8a of the Commodity Exchange Act, 7 U.S.C. 7, 7a, 7b, 8 and 12. Agency Contact: Ronald Hobson, Division of Economics and Education, 2033 K Street, N.W., Washington, D.C. 20581 (202-254-7847).

Outstanding FR N otices: None. 4. Dealer Options Congress has directed the Commission to issue regulations permitting grantors and futures commission merchants to grant, offer and sell so-called "dealer options” on certain physical commodities subject to certain conditions specified by statute and such other uniform and reasonable requirements as the Commission may prescribe. At present, the only persons who may lawfully grant dealer options are United States domiciles who, on May 1,1978, were in the business of granting options on a physical commodity and in the business of buying, selling, producing or otherwise using that commodity, unless the Commission, for good cause shown, has waived these requirements. On October 30,1979, the Commission considered public comments and staff recommendations concerning proposed rules relating to dealer options. At this meeting, the staff was directed to make certain'revisions in the proposed rules. These revisions will be presented to the Commission by the fall of 1980. Legislative Authority: Sections 4c and 8a(5) of the Act, 7 U.S.C. 6c and 12a(5) (1976), as amended, Pub. L No. 95-405, Section 3, 92 Stat. 867-869 (September 30,1978).

Agency Contact: Mark Rae, Office of the General Counsel, 2033 K Street, N.W., Washington, D.C. 20581 (202-254- 7285).

Outstanding FR N otice: Proposed Reissuance of and Amendments to Commodity Option Regulations, 43 FR 59396 (December 20,1978). 5. Reform of Reparation System The Commission has proposed amendments to its rules governing die initial phase of its reparation system. The amendments are intended to expedite processing and resolution of reparation complaints. Under the proposed rules, the Director of the Complaints Secton would be authorized to screen, investigate and report on incoming reparation claims and all responses to those claims, to clarify the contested issues in each case and to encourage the parties to seek settlement Additionally, under the proposed amendments the right to a hearing would be deemed to be waived unless timely requested by a respondent Public comments have been requested on the proposals, which will be considered by the Commission in the fall of 1980. Legislative Authority: Sections 2(a)(ll), 8a and 14 of the Commodity Exchange Act, as amended, 7 U.S.C. 4a(j), .12a and 18 and Section 483a of the Independent Office Appropriation Act of 1952.

Agency Contact: Margaret R. Sandridge, Director, Complaints Section, 2033 K Street N.W., Washington, D.C. 20581 (202-254-3067).

Outstanding FR N otice: Procedures of the Complaints Section and Conforming Amendments to Reparation Rules, 45 FR 123 (June 24,1980).

6. Proposed Amendments to Minimum Financial and Related Reporting Requirements for Futures Commission Merchants The Commission is proposing to revise certain of its minimum financial and related reporting requirements for futures commission merchants ("FCMs”), as well as the basic financial reporting form for FCMs, Form 1-FR. The proposed revisions would impose a minimum financial requirement for all FCMs to maintain adjusted net capital equal to or in excess of the greatest of $50,000 ($100,000 for each person registered as an FCM who is not a member of a designated self-regulatory organization), or 4 percent of the funds required to be segregated pursuant to die Commodity Exchange Act, as amended and the Commission’s regulations promulgated thereunder, or, for securities brokers and dealers, 4 percent of aggregate debit items computed in accordance with the formula for determination of reserve requirements. The proposed revisions would also require FCMs to take a charge against net capital to the extent that a customer account is undermargined for three business days. At present, the regulations allow five business days before such a charge must be taken. Public comments have been requested and the Commission will determine whether to adopt the proposed amendments in the fall of 1980.

Legislative Authority: Sections 4d, 4f, and 8a of the Commodity Exchange Act, 7 U.S.C. 6d, 6f, and 12a, as amended, 92 State. 865 et seq.

Agency Contact: Dan Driscoll, Chief Accountant, Division of Trading and Markets, 2033 K Street, N. W., Washington, D.C. 20581 (202-254-8955). Outstanding FR N otices: Minimum Financial and Related Reporting Requirements: Proposed Rule Amendments, 45 FR 42633 (June 25, 1980).

7. Registration of Futures Commission Merchants, Floor Brokers, Associated Persons, Commodity Trading Advisors, and Commodity Pool Operators The Commission has proposed revisions of its registration regulations which generally would require the "sponsorship” of associated persons by futures commission merchants. Hie proposed regulations would also require the fingerprinting of all associated persons, floor brokers and the “principals” of futures commission merchants, commodity trading advisors, and commodity pool operators. The Commission has received public comment on this proposal and will decide whether to adopt the proposed revisions during the summer of 1980. At the same time, the Commission will decide whether to publish for public comment changes recommended by its staff to registration Form 8-R and certain of the Commission’s regulations and notices under the Privacy Act.

Page 97

Federal Register / Vol. 45, No. 145 / Friday, July 25, I960 / Proposed Rules 49591 Legislative Authority: Sections 2, 4d, 4e, 4f, 4g, 4k, 4m, 4n, 4p, 6 and 8a of the Commodity Exchange Act, 7 U.S.C. 2, 4, 6d, 6e, 6f, 6g, 6k, 6m, 6n, 6p, 9 ,12a, as amended; 5 U.S.C. 552a. Agency Contact: Kenneth M. Rosenzweig, Division of Trading and Markets, 2033 K Street NW., Washington, D.C. 20581 (202-254-8955). Outstanding FR N otice: Revision of Registration Regulations—Proposed Rules, 45 FR 18356 (March 20,1980). 8. Bankruptcy and Related Regulations The Bankruptcy Reform Act of 1978 permits the Commission to adopt regulations implementing Subchapter IV of Chapter 7 of the Act which pertains specifically to bankruptcies of commodity firms. In this connection, the Commission staff is currently developing a package of regulations which will address each of the matters with respect to which it is authorized to promulgate regulations, including the scope of "customer property,” the requirements for characterizing property as specifically identifiable, the method of calculating net equity, the criteria for the transfer of customer property free of the avoidance powers of the bankruptcy trustee, and guidelines for the operation of a debtor’s estate pending its liquidation. As the commodity Chapter of the Bankruptcy Act pertains to certain businesses for which the Commission has not yet developed financial regulations, such as leverage transaction merchants and foreign futures commission merchants, it is expected that the proposed bankruptcy package will be accompanied by regulations expanding the reach of the segregation requirements and modifying the existing requirements in some respects.

The Commission staffs recommendations in the bankruptcy area will be considered m the fall of 1980.

Legislative Authority: Sections 2, 3, 4h, 8a, and 19 of the Commodity Exchange Act, 7 U.S.C. 2, 5, 6h, 12a, 24, as amended.

Agendy Contract: Andrea M. Corcoran, Assistant Chief Counsel, Division of Trading and Markets, 2033 K Street NW., Washington, D.C. 20581 (202-254-8955).

Outstanding FR N otice: None. Issued in Washington, D.C. on July 22,1980. Jane K. Stuckey, Secretary o f the Commission. [F R D o c . 8 0 -2 2 3 9 7 F ile d 7 -2 4 -8 0 ; 8 :4 5 a m ] BILLING CODE 6351-01-M DEPARTMENT OF ENERGY Federal Energy Regulatory Commission 18 CFR Part 4 [Docket No. RM80-65] Exemption From All or Part of Part I of the Federal Power Act of Small Hydroelectric Power Projects With a Proposed Installed Capacity of 5 Megawatts or Less; Availability of the Draft Rule and of Informal Conferences Issued; July 21,1980.

AGENCY: Federal Energy Regulatory Commission.

ACTION: Notice of the availability of the draft rule and of informal conferences. SUMMARY: Thé Federal Energy Regulatory Commission (Commission) is making available a draft of a rule prepared by Commission staff. The draft rule would implement, in part, section 408 of the Energy Security Act of 1980. In section 408, the Congress provided the Commission with discretion to exempt certain small hydroelectric power projects from applicable provisions of the Federal Power Act (Act), either by means of case-bÿ-case determinations or according to classes or categories of such projects. The draft rule establishes procedures for case-by-case exemptions. The Commission requests any interested party to comment informally on the draft rule. Comments must be submitted by phone or in person at one of the meetings described below. Anyone wishing to participate in the informal meetings should notify the staff designated below by phone. Records of all comments will be placed in the files of the Commission and will be available for public inspection. The draft rule will be revised pursuant to the comments and reconsidered by the Commission. DATES: Oral comments by August 12, 1980. Informal meetings at 10:00 a.m. on August 1 and August 1 2 ,1 9 8 0 . ADDRESSES:

Location o f meetings:

Federal Energy Regulatory Commission, 825 North Capitol Street, NE., Washington, D.C. 20426. August 1: Conf. Rm. 3200, North Building.

August 12: Conf. Rm. 3401, North Building.

Submit comments to—Ronald Corso, Director, Division o f Hydropower Licensing, O ffice o f Electric Power Regulation, Federal Energy Regulatory Commission, (202) 357-5321. Howard Jack, Assistant General Counsel for H ydroelectric Licensing, O ffice o f the General Counsel, Federal Energy Regulatory Commission, (202) 357-8448. Jam es H oecker, Division o f Regulatory Development, O ffice o f the G eneral Counsel, Federal Energy Regulatory Commission, (202) 357-9342. The rule and accompanying explanatory materials are available for inspection at the Commission’s Divison of Public Information, Room 1000, 825 North Capitol Street, N.E., Washington, D.C. 20426.

FOR FURTHER INFO RM ATION CONTACT: James Hoecker (202) 357-9342. Kenneth F. Plumb, Secretary.

[ F R D o c . 8 0 -2 2 3 3 3 F ile d 7 -2 4 -8 0 ; 8 :4 5 a m ] BILUNG CODE 6450-85-M DEPARTMENT OF THE TREASURY Customs Service 19 CFR Part 177 Administrative Rulings; Proposed Change in the Customs Regulations Pertaining to the Issuance of Administrative Rulings Concerning the Tariff Classification of Merchandise AGENCY: U.S. Customs Service, Department of the Treasury. ACTIO N: Proposed rule. s u m m a r y: This notice proposes to amend the Customs Regulations to authorize the Regional Commissioner of Customs, Region II, New York (“Regional Commissioner”), to issue selected tariff classification rulings. The rulings would be limited to requests for the tariff classification of merchandise before the transaction is considered by Customs by reason of,arrival or entry of the merchandise. A right of appeal to Customs Headquarters would be authorized and the rulings made in the New York Region would be closely monitored by Customs Headquarters for consistency with law, regulation, and precedent cases.

d a te s: Comments msut be received on or before August 27,1980. ADDRESS: Comments (preferably in triplicate) may be addressed to the Commissioner of Customs, Attention: Regulations and Research Division, U.S. Customs Service, 1301 Constitution Avenue, N.W., Room 2426, Washington, D.C. 20229.

FOR FURTHER INFO RM ATION CONTACT: Salvatore E. Caramagno, Director, Classification and Value Division, Office of Regulations and Rulings, U.S. Customs Service, 1301 Constitution

Page 98

49592 Federal Register / Vol. 45, No. 145 / Friday, July 25, 1980 / Proposed Rules Avenue, N.W., Washington, D.C. 20229 (566-5868).

Background To be certain of the duty treatment * merchandise will receive when imported into the United States, importers usually request binding rulings from Customs before the import transaction relating to the merchandise takes place. Currently, such rulings are issued by the Office of Regulations and Rulings (“ORR”) at Customs Headquarters. While some of the requests require immediate replies in order to be meaningful, others do not require such quick responses. In the absence of advice from the requester, it is usually not possible or ORR to make a determination with respect to the urgency of any particular ruling request. In addition, some of these requests are quite simple, do not involve significant duty, or have any other complicating factors. On the other hand, a small percentage (estimated at approximately 20%-30%) of the requests are either very complex or have other issues involved which makes the decisions sensitive (i.e., policy considerations affecting U.S. employment or balance of trade, etc.). Because of increases in ruling requests and decreases in staffing, it has become apparent in recent months that some method must be found to expedite the ruling process. A variety of managment improvements have been made in ORR, but despite all these changes, it still takes an average of 100 to 110 days to process a response to an importer. A processing time of 100 to 110 days to issue a response in non-complex or non-sensitive cases is not acceptable if Customs intends to provide a meaningful service to the international trade community.

Accordingly, a detailed examination of the ruling process was undertaken for the purpose of improving the system. Pursuant to the examination, it was concluded that present procedures should be modified to allow for a more active role by the National Import Specialists (NIS) located in New York, New York.

The NIS are a relatively small, skilled group of Customs professionals. They are tariff classification technicians and, unlike import specialists located in other Customs regions, are responsible for very narrow areas of the tariff schedules of the United States (19 U.S.C. 1202) known as product lines, and are conversant with the judicial and administrative precedent which relates to these product lines.

Inasmuch as the NIS are centrally located and are organizationally under the same person, unformity of decisions would be easily attained and the quality of rulings would be maintained. The authority to issue selected rulings would be vested in the Regional Commissioner and delegated to the Assistant Area Director, Classification and Value Division, New York Seaport and Region, under whose supervision the NIS are organized.

The NIS would issue ruling letters regarding prospective Customs transactions only. They would not be allowed to prepare final decsiions on “Internal Advice” reguests, “Further Review of Protest,” requests, requests for “Change of Practice,” and “ Petitions under section 516, Tariff Act of 1930, as amended (19 U.S.C. 1516).” Also, they would not be allowed to prepare final rulings in “difference” cases. Requests for tariff classification rulings would be forwarded to the Regional Commissioner of Customs Headquarters, the Regional Commissioner or his designee, would determine whether the requested ruling would be issued from the Region or whether, due to its complex or sensitive nature, the matter would be referred to Headquarters. In addition, those members of the public who believe that their classification requests present complex or important issues my make their requests directly to Headquarters. Customs Headquarters would retain authority to issue rulings in all matters brought to its attention and to independently review all ruling letters issued by the Regional Commissioner or his designee. If the importer or other person to whom a ruling letter is issued disagrees with the tariff classification he could, within 30 days of the date of issuance of the ruling letter, petition the Director, Classification and Value Division, Customs Headquarters, for review of the ruling.

If am actual importation of merchandise occurs after receipt of a request for a ruling but before the issuance of the ruling, the NIS would handle the matter in the same way it is currently handled by Headquarters (i.e., the party seeking the ruling must advise Customs of the fact an actual importation has occurred and assuming no material change in the facts the request would continue to be treated by Customs as a prospective ruling request).

The rulings signed by the Regional Commissioner or his designee would be binding on Customs. They would not be withdrawn retroactively to the detriment of the party on whose behalf the ruling was requested. Further, if published, those rulings would create established and uniform practices. Proposed Amendments It is proposed to amend the Sections of Part 177, Customs Regulations (19 CFR Part 177), affected by this change to read as follows:

1.

It is proposed to amend § 177.0 to read as follows:

§ 177.0 Scope.

This part relates to the issuance of rulings to importers and other interested persons by the Headquarters Office of the United States Customs Service or the Regional Commissioner of Customs, Region II, or his designee. It describes the situations in which a ruling may be requested, the procedures to be followed in requesting a ruling, the conditions under which a ruling will be issued, the effect of a ruling when it is issued, and the publication of rulings in the Customs Bulletin. The rulings issued under the provisions of this part will usually be prospective in application and, consequently, will usually not relate to specific matters or situations presently or previously under consideration byany Customs Service field office. Accordingly, the rulings requested under the provisions of this part should be distinguished from the administrative rulings, determinations, or decisions which may be requested under procedures set forth elsewhere in this chapter, including, but not limited to, those set forth in Part 12 (relating to submissions of proof of admissibility of articles detained under section 307 of the Tariff Act of 1930 (19 U.S.C. 1307)), Part 103 (relating to disclosure of information in Customs files), Part 133 (relating to disputed claims of piratical copying of copyrighted matter), Subpart C of Part 152 (relating to determinations concerning the dutiable value of merchandise by Customs field'officers), Part 153 (relating to enforcement of the Antidumping Act, 1921, as amended), Part 159 (insofar as it relates to countervailing duties), Part 171 (relating to fines, penalties, and forfeitures), Part 172 (relating to liquidated damages), Part 174 (relating to protests), and Part 175 (relating to petitions filed by American manufacturers, producers, of wholesalers pursuant to section 516 of the Tariff Act of 1930, as amended). Nor do the provisions of Part 177 apply to requests for decisions of an operational, administrative, or investigative nature which are properly within the cognizance of a Customs Headquarters Office other than the Office of Regulations and Rulings. 2.

It is proposed to amend § 177.1(a)(1), (b), and (d)(1) and (2) to read as follows:

Page 99

Federal Register / Vol. 45, No. 145 / Friday, July 25, 1980 / Proposed Rules 49593 § 177.1 General ruling practice and definitions.

(a) The issuance o f rulings generally—(1) Prospective transactions. It is in the interest of the sound administration of the Customs and related laws that persons engaging in any transaction affected by those laws fully understand the consequences of that transaction prior to its consummation. For this reason, the Headquarters Office of the United States Customs Service or the Regional Commissioner, Region II, or his designee, will give full and careful consideration to written requests from importers or other interested parties for rulings or information setting forth, with respect to a specifically described Customs transaction, a definitive interpretation of applicable law, or other appropriate information. Generally, a ruling may be requested under the provisions of this part only with respect to prospective transactions—that is, transactions which are not already pending before a Customs Service office by reason of arrival, entry, or otherwise. * * * * * (b) Oral advice. The Customs Service will not issue rulings in response to oral requests, nor will Customs personnel ordinarily discuss a substantive Customs question prior to receiving a written request for a ruling. Oral opinions or advice of Customs Service personnel are not binding on the Customs Service. However, oral inquiries may be made to Customs Service offices regarding existing rulings, the scope of such rulings, the types of transactions with respect to which the Headquarters Office or the Regional Commissioner, Region II, or his designee, will issue rulings, the scope of the rulings which may be issued, or the procedures to be followed in submitting ruling requests, as described in this part. * * - * * * (d) Definitions. {1) A “ruling” is a written statement issued by the Headquarters Office or the Regional Commissioner, Region II, or his designee, that interprets and applies the provisions of the Customs and related laws to a specific set of facts. A “ruling letter” is a ruling issued in response to a written request therefor and set forth in a letter addressed to the person making the request or his designee. A “published ruling” is a ruling which has been published in the Customs Bulletin. (2) An “information letter” is a written statement issued by the Headquarters Office or the Regional Commissioner, Region II, or his designee, that does no more than call attention to a wellestablished interpretation or principle of Customs law, without applying it to a particular set of facts. An information letter may be issued in response to a request for a ruling when (i) the request suggests that general information, rather than a ruling, is actually being sought, (ii) the request is incomplete or otherwise fails to meet the requirements set forth in this part, or (iii) the ruling requested cannot be issued for any other reason, and (iv) it is believed that general information may be of some benefit to the party making the request. * * * * * 3.

It is proposed to amend § 177.2(a), (b)(2)(ii) and (d) to read as follows: § 177.2 Submission of ruling requests. (a) Form. A request for a ruling should be in the form of a letter. Requests for Valuation and Carrier rulings should be addressed to the Commissioner of Customs, Attention: Office of Regulations and Rulings, Washington, D.C. 20229. The Division and Branch in the Office of Regulations and Rulings to which the request should be directed may also be indicated, if known. Requests for Tariff Classification rulings should be addressed to the Regional Commissioner of Customs, Region II, New York, New York 10048. (b) * * * (2) * * * (ii) T ariff classification rulings. (A) If the transaction involves the importation of an article for which a ruling as to its proper classification under the provisions of the Tariff Schedules of the United States is requested, the request for a ruling should include a full and complete description of the article and whenever germane to the proper classification of die article, information as to the article’s chief use in the United States, its commercial, Gommon, or technical designation, and, where the article is composed of two or more materials, the relative quantity (by weight and by volume) and value of each. The ruling request should also note, whenever germane, the purchase price of the article, and its approximate selling price in the United States.

(B) Ruling letters issued by the Regional Commissioner, Region II, or his designee, are limited to prospective transactions. The Regional Commissioner or his designee shall not prepare final decisions under section 177.11 (Requests for Advice by Field Offices), section 174.23 (Further Review of Protests), section 177.10 (Change of Practice), 19 U.S.C. 1516 (petitions under section 516, Tariff Act of 1930), or 14.3(g)(1) Customs Manual (“difference cases”).

(C) In complex or sensitive cases, the requesting party may send the request directly to the Director, Classification and Value Division, U.S. Customs Service, Washington, D.C. 20229. The Headquarters office retains authority to independently reviejv all tariff classification ruling letters issued by the Regional Commissioner, Region II, or his designee. If the importer or other person to whom a ruling letter is issued disagrees with the tariff classification set forth, he may, within 30 days of the issuance of the ruling letter, petition the Director, Classification and Value Division, U.S. Customs Service, Washington, D.C., for review of the ruling.

* * * * * (d) Requests fo r im m ediate consideration. The Headquarters Office and the Regional Commissioner, Region II, or his designee, will normally process requests for rulings in the order they are received and as expeditiously as possible. However, a request that a particular matter be given consideration ahead of its regular order, if made in writing at the time the request is submitted, or subsequent thereto, and showing a clear need for such treatment, will be given consideration as the particular circumstances warrant and permit. Requests for special consideration made by telegram will be treated in the same manner as requests made by letter, but rulings will not ordinarily be issued by telegram. In no event can any assurance be given that a particular request for a ruling will be acted upon by the time requested. However, upon request and where a clear need is shown for such action, a collect telephone call will be made to advise that the ruling letter has been issued and is being mailed. 4.

It is proposed to amend paragraphs (a) and (b) of § 177.4 to read as follows: § 177.4 Oral discussion of issues. (a) Generally. A person submitting a request for a ruling and desiring an opportunity to orally discuss the issue or issues involved should indicate that desire in writing at the time the ruling request is filed. Such a discussion will only be scheduled when, in the opinion of the Customs personnel by whom the ruling request is under consideration, a conference will be helpful in deciding the issue or issuea involved or when a determination or conclusion contrary to that advocated in the ruling request is contemplated. Conferences are scheduled for the purpose of affording the parties an opportunity to freely and openly discuss the matters set forth in the ruling request. Accordingly, the

Page 100

49594 Federal Register / Vol. 45, No. 145 / Friday, July 25, 1980 / Proposed Rules parties will not be bound by any argument or position advocated or agreed to, expressly or by implication, during the conference unless either party subsequently agrees to be so bound in writing. The conference will not conclude yith the issuance of a ruling letter.

(b) Time, place, and number o f conferences. If a request for a conference is granted, the person making the request will be notified of the time and place of the conference. Except under highly unusual circumstances, the conference will be held at the Headquarters Office of the United States Customs Service in Washington, D.C., or at the New York Region. No more than one conference with respect to the matters set forth m b' ruling request will be scheduled, unless, in the opinion of the Customs personnel by whom the ruling request is under consideration, additional conferences are necessary.

5. It is proposed to amend § 177.5 to read as follows:

§ 177.5 Change in status of transaction. Each person submitting a request for a ruling in connection with a Customs transaction shall immediately advise the Headquarters Office in writing of any change in the status of that transaction, as defined in § 177.1(d)(3). In particular, the Headquarters Office or th§ Regional Commissioner, Region II, or his designee, must be advised when any transaction described in the ruling request as prospective becomes current and under the jurisdiction of any Customs Service field office. In addition, any person engaged in a Customs transaction coming under the jurisdiction of a Customs Service field office and having previously requested a ruling with respect to that transaction shall advise the field office of that fact. The field office will normally withhold action with respect to any transaction for which a ruling has previously been requested pending the disposition of the ruling request.

6. It is proposed to amend § 177.6 to read as follows:

§ 177.6 Withdrawal of ruling requests. Any request for a ruling may be withdrawn by the person submitting it at any time prior to the issuance of a ruling letter or any other final disposition of the request. All correspondence, documents, and exhibits submitted in connection with the request will be retained in the Customs Service file and will not be returned. In addition, the Headquarters Office may forward to Customs Service field offices which have or may have jurisdiction over the transaction to which the ruling request relates, its views in regard to the transaction or the issues involved therein, as well as appropriate information derived from materials in the Customs Service file. 7.

It is proposed to amend § 177.8(a)(1), (2) and (3) to read as follows:

§ 177.8 Issuance of rulings.

(a) Ruling letters—(1) Generally. The Headquarters Office and the Regional Commissioner, Region II, or his designee, will endeavor to issue ruling letters setting forth their determinations with respect to a specifically-described Customs transaction whenever a request for such a ruling is submitted in accordance with the provisions of this part and it is in the interest of the sound administration of the Customs and related laws to do so. Otherwise, a request for a ruling will be answered by an information letter or, in those situations in which general information is likely to be of little or no value, by a letter stating that no ruling can be issued.

{2) Submission o f ruling letters to field offices. Any person engaging in a Customs transaction with respect to which a ruling letter has been issued by the Headquarters Office or the Regional Commissioner, Region II, or his designee, shall ascertain that a copy of the riding letter is attached to the documents filed in connection with that transaction with the appropriate Customs Service field office or otherwise bring the ruling to the attention of the appropriate Customs officer. A copy of any ruling letter received after the filing of such documents shall be forwarded immediately to the appropriate Customs Service field office.

(3) D isclosure o f ruling letters. The ruling letter shall be based on the information set forth in the ruling request. No part of the ruling letter, including names, addresses, or information relating to the business transactions of private parties, shall be deemed to constitute privileged or confidential commercial or financial information or trade secrets exempt from disclosure pursuant to the Freedom of Informatipn Act, as amended (5 U.S.C. 552), unless the ruling request, as provided in § 177.2(b)(7), clearly identifies the information claimed to be exempt from disclosure and set forth the reasons therefor. Prior to the issuance of the ruling letter, the person submitting the ruling request, will be notified of any decision adverse to his claim for exemption from disclosure and will, upon written request to the Commissioner of Customs within 10 working days of the date of notification, be permitted to withdraw the ruling request. All ruling letters issued by the Headquarters Office or the Regional Commissioner, Region II, or his designee, will be available, upon written request, for inspection and copying by any person (with any portions determined to be exempt from disclosure deleted).

Hr * 1t 8.

It is proposed to amend paragraphs (a) and (d) of § 177.9 to read as follows: § 177.9 Effect or ruling letters; modification or revocation. (a) E ffect o f ruling letters generally. A ruling letter issued by the Headquarters Office or the Regional Commissioner, Region II, or his designee, under the provisions of this part represents the official position of the Customs Service with respect to the particular transaction or issue described therein and is binding on all Customs Service personnel in accordance with the provisions of this section until modified or revoked. In the absence of a subsequent change of practice or other modification or revocation which affects thé principle of the ruling set forth in the ruling letter, that principle may be cited as authority in the disposition of transactions involving the same circumstances.

* * * * * (d) M odification or revocation o f ruling letters—(1) Generally. Any ruling letter found to.be in error or not iti accordance with the current views of the Customs Service may be modified or revoked. Modification or revocation of a ruling letter shall be effected by giving notice to the person to whom the ruling letter was addressed and, where circumstances warrant, by the publication of a notice or other statement in the Customs Bulletin. (2) E ffect o f m odification or revocation of ruling letters. The modification or revocation of a ruling letter will not be applied retroactively with respect to the person to whom the ruling was issued, or to any person directly involved in the transaction to which the ruling related, provided (i) The request for a ruling contained no misstatement or omission of material facts, (ii) The facts subsequently developed are not materially different from the

Page 101

Federal Register / Vol. 45, No. 145 / Friday, July 25, 1980 / Proposed Rules 49595 facts on which the ruling was based, (iii) There has been no change in the applicable law, (iv) The ruling was originally issued with respect to a prospective transaction, and (v) All of the parties involved in the transaction acted in good faith in reliance upon the ruling and retroactive modification or revocation would be to their detriment.

Nothing in this subparagraph will prohibit the retroactive modification or revocation of a ruling with respect to a transaction which was not prospective at the time the ruling was issued, inasmuch as such a transaction was not entered into in reliance on a ruling from the Headquarters Office or the Regional Commissioner, Region II, or his designee.

9.

It is proposed to amend § 177.11(b)(1) to read as follows: § 177.11 Requests for advice by field offices.

* * * * * (b) Certain current transactions (1) When a ruling has been issued—(i) Requests by field offices. If the Headquarters Office, or the Regional Commissioner, Region II, or his designee, has issued a ruling letter with respect to a particular Customs transaction and the Customs Service field office having jurisdiction over that transaction feels that the ruling should be modified or revoked, the field office will forward to the Headquarters Office, pursuant to § 177.9(b)(1), a request that the ruling be reconsidered. The field office will notify the importer or other person to whom the ruling letter was issued, in writing, that it has requested the Headquarters Office to reconsider the ruling. .

, * if 1e is * Authority These amendments are proposed under the authority of R.S. 251, as amended, and section 624, 46 Stat. 759 (19 U.S.C. 66,1624).

Commènts Before adopting this proposal, consideration will be given to any written comments timely submitted to thè Commissioner of Customs. Comments submitted will be available for public inspection in accordance with section 103.8(b), Customs Regulations (19 CFR 103.8(b)), during regular business hours at the Regulations and Research Division, Room 2426, Headquarters, U.S. Customs Service, 1301 Constitution Avenue, N.W., Washington, D.C. 20229. Early implementation of this proposal would significantly improve the ruling process and be of substantial public benefit. IHs therefore considered impractical and contrary to the public interest to permit a 60-day period for public comments.

Accordingly, the period within which comments are to be submitted is 30 days from the date of publication of this ^ proposal in the Federal Register, instead of the 60 days ordinarily required by E .0 .12044 of March 23,1978 (43 FR 12661), and the implementing Treasury Department directive of November 8, 1978 (43 FR 52120).

Regulation Determined To Be Nonsignificant •» In a directive published in the Federal Register on November 8,1978 (43 FR 52120), implementing Executive Order 12044, “Improving Government Regulations,” the Treasury Department stated that it considers each regulation or amendment to an existing regulation published in the Federal Register and codified in the Code of Federal Regulations to be “significant.” However, regulations which are nonsubstantive, are essentially porcedural, do not materially change existing or establish new policy, and do not impose substantial additional requirements or costs on, or substantially alter the legal rights or obligations of, those affected, with Secretarial approval, may be determined not to be significant. Accordingly, it has been determined that these proposed amendments do not meet the Treasury Department criteria in the directive for “significant” regulations. Drafting Information The principal author of this document was Lawrence P. Dunham, Regulations and Research Division, Office of Regulations and Rulings, U.S. Customs Service. However, personnel from other Customs offices participated in its development.

R. E. Chasen, Commissioner o f Customs. Approved: July 18,1980. John P. Simpson, Acting for Assistant Secretary o f the Treasury.

[ F R D o c . 8 0 -2 2 4 3 1 F ile d 7 -2 4 -8 0 ; 8 :4 5 a m ] BILLING CODE 4810-22-M DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT Office of Assistant Secretary for Housing—Federal Housing Commissioner 24 CFR Part 200 [Docket No. R-80-840] Minimum Property Standards (MPS) for One- and Two-Family Dwellings and for Multifamily Housing AGENCY: Department of Housing and Urban Development (HUD), Office of the Assistant Secretary for Housing— Federal Housing Commissioner. ACTION: Advance Notice of proposed rulemaking.

SUMMARY: This advance notice requests comments and information from the public on amendments being considered for the MPS which would change the amount of ventilation currently required in One and Two Family Dwellings (4900.1) and Multifamily Housing (4910.1) .

DATES: Comments Due: September 23, 1980.

ADDRESS: Comments should be sent to: Rules Docket Clerk, Office of the General Counsel, Room 5218, Department of Housing and Urban Development, 451 Seventh Street, SW, Washington, D.C. 20410. Comments should refer to the above docket number and title. Copies of any comments received will be available for examination during regular business hours at this address.

FOR FURTHER INFORMATION CONTACT: Kenneth L. Credle, Minimum Property Standards Division, Office of Architecture and Engineering Standards, Room 6170, Department of Housing and Urban Development, 451 Seventh Street, SW,«Washington, D.C. 20410, telephone 202/755-6590. (This is not a toll free number.) SUPPLEMENTARY INFORMATION: HUD Minimum Property Standards are published in Handbooks, MPS for Qneand Two-Family Dwellings 4900.1, MPS for Multifamily Dwellings 4910.1, and the MPS for Care-Type Housing 4920.1. The MPS are the standards for all new construction in HUD associated programs. The MPS are incorporated by reference into 24 CFR 200.927. All substantive changes in the MPS are required by 24 CFR 200.933 to be published in the Federal Register using the same procedure as for the publication of regulations. Proposed changes to MPS 4900.1 and MPS 4910.1

Page 102

49596 Federal Register / Vol. 45, No. 145 / Friday, July 25, 1980 / Proposed Rales are available for public examination in all HUD Field Offices and in Headquarters, Office of Architecture and Engineering Standards, RoomjB170 at the above address during regular business hours.

This rule is not listed in the Department’s semiannual agenda of significant rules, published pursuant to Executive Order 12044.

Background Hud is committed to the goal of energy conservation. Efforts to insulate buildings more efficiently and to reduce air infiltration and exfiltration as a means of conserving energy have created a concern for indoor air quality in residential structures. The proliferation of codes and standards requirements in these fields, by Federal, State and private sector organizations, has resulted in conflicting criteria in several instances. In the interest of uniformity, HUD is seeking comment on the ventilation requirements presently contained in the MPS for One- and Two-Family Dwellings, HUD 4900.1, and the MPS for Multifamily Housing, HUD 4910.1, and upon proposed alternatives. Multifamily MPS 4910.1 section 403-3, sets forth the ventilation requirements for multifamily structures. Ventilation may be provided by natural means or by mechanical means. When natural means are used, ventilation is provided by windows or doors in exterior walls in the amount of 5 percent of the floor area of the habitable room. When mechanical ventilation is used, the standards prescribe a minimum number of air changes per hour. The requirement is based upon “recommended” values shown in the American Society of Heating, Refrigerating, and Air- Conditioning Engineers (ASHRAE), Standards for Natural and Mechanical Ventilation, No. 62-73. ASHRAE Standard 90-75, Energy Conservation in New Buildings, and the Code for Energy Conservation based upon ASHREA 90-75 also refer to ventilation rates appearing in A&HREA 62-73. However, the documents have selected the “minimum” values, rather than the “recommended” values, from ASHREA 62-73 and have designated these values as the maximum permitted. This has created a conflict between HUD standards and State codes. HUD is aware that a proposed revision to ASHREA 62-73 is being circulated for comment. The ASHREA 62-73 Standard has been retitled as "Ventilation for Acceptable Indoor Air Quality.” The ventilation rates in the proposed ASHRAE 62-73 are approximately the same as those contained in the MPS. Several of the model codes and local codes have accepted “Ductless” Air Circulating and Treatment Devices in lieu of bathroom exhaust fans when such devices conform to the National Sanitation Foundation (NSF) Basic Criteria C-10. The MPS presently require exhaust fans to be ducted to the outside atmosphere. This difference poses another conflict between the MPS and certain codes. The proposed revision to ASHRAE 62-73 contains procedures by which design engineers may determine acceptable indoor air quality by a combination of mechanical ventilation, filtration and other means. Single Family MPS 4900.1 section 403-3 requires natural ventilation for all habitable rooms except that kitchens and baths may be vented mechanically. • The One- and Two-Family Dwelling Code, promulgated by the Council of American Building Officials, perrnits mechanical ventilation of habitable rooms in lieu of natural ventilation. Here again, a possible conflict exists between HUD standards and the codes. Comment HUD is requesting comment on the subject of ventilation and indoor air quality as a basis for proposing changes to the MPS. Technical data, substantiating comments an(J suggestions would be appreciated. In particular, the following concerns should be addressed:

1. Should MPS 4910.1 contain specific requirements for natural and mechanical ventilation or should reference be made instead to State energy codes? Should ASHRAE 62-73 be adopted by reference in lieu of specific MPS requirements or State energy codes? Should reference of ASHRAE 62-73 be postponed pending completion of the proposed revision? 2. Should MPS 4910.1 follow the model codes and accept Ductless Air Circulating and Treatment Devices in Conformance to NSF C-10, in lieu of mechanical ventilation of bathrooms? Should such acceptance apply to bathrooms containing moisture generating fixtures such as showers or only to toilet rooms without showers? Should acceptance be conditioned upon procedures proposed in ASHRAE 62- 73R? 3. Should MPS 4900.1 be amended to permit mechanical ventilation for nabitable spaces in lieu of the natural ventilation now required? If mechanical ventilation is to be accepted for such spaces, should the rate of ventilation be that required by the One- and Two- Family Dwelling Code (two air changes per hour), that shown in ASHRAE 62-73 as minimum (5 cubic feet per minute (cfm) per occupant), that shown in ASHRAE 62-73 as recommended (7-10 cfm per occupant), or that proposed in ASHRAE 62-73R (10 cfm per room independent of room size)? 4.

Should MPS 4900.1 be amended to accept Ductless Air Circulating and Treatment Devices in conformance to NSF C-10, in lieu of natural or mechanical ventilation of bathrooms? Should such acceptance apply to bathrooms containing moisture generating fixtures such as showers, or only to toilet rooms without showers? Comments should take into consideration the effects of such revisions to each MPS on first cost, maintenance cost, energy consumption, indoor air quality, and consistency of regulation.

Interested persons are invited to comment on the need for rulemaking and whether there may be «practical alternatives to regulation. Commentors are urged to address the questions and issues stated above but need not limit their comments to those questions or issues.

A decision to terminate the rulemaking proceeding will not prejudice any future rulemaking by HUD.

(Sec. 7(d) of the Department of HUD Act (42 U.S.C. 3535(d))) Issued at Washington, D.C., July 18,1980. Law rence B. Simons, A ssistant Secretary for Housing-Federal Housing Commissioner.

[ F R D o c . 8 0 -2 2 4 2 7 F ile d 7 -2 4 -8 0 ; 8 :4 5 a m ] BILLING CODE 4210-01-M DEPARTMENT OF THE TREASURY Internal Revenue Service 26 CFR Part 1 [E E -5 -7 8 ] Qualified Group Legal Services Plans; Public Hearing AGENCY: Internal Revenue Service, Treasury.

ACTIO N: Public hearing on proposed regulations.

SUMMARY: This document provides notice of a public hearing on proposed regulations relating to qualified group legal services plans.

DATES: The public hearing will be held on September 4,1980, beginning at 10:00 a.m. Outlines of oral comments must be delivered or mailed by August 22,1980. ADDRESS: The public hearing will be held in the I.R.S. Auditorium, Seventh Floor, 7400 Corridor, Internal Revenue Building, 1111 Constitution Avenue,

Page 103

Fédéral Register / Vol. 45, No. 145 / Friday, July 25, 1980 / Proposed Rules 49597 N.W., Washington, D.C. The outlines should be submitted to the Commissioner of Internal Revenue, Attn: CC:LR:T (EE-5-78), Washington, D.C. 20224.

FOR FURTHER INFORMATION CONTACT: Charles Hayden of the Legislation and Regulations Division, Office of Chief Counsel, Internal Revenue Service, 1111 Constitution Avenue, N.W., Washington, D.C. 20224, 202-566-3935, not a toll-free call.

SUPPLEMENTARY INFORMATIONS The subject of the public hearing is proposed regulations under sections 120 and 501(c) (20) of the Internal Revenue Code of 1954. The proposed regulations appeared in the Federal Register for Tuesday, April 29,1980 (45 FR 28360). The rules of § 601.601(a)(3) of the “Statement of Procedural Rules” (26 CFR Part 601) shall apply with respect to the public hearing. Persons who have submitted written comments within the time prescribed in the notice of proposed rulemaking and also desire to present oral comments at the hearing on the proposed regulations should submit an outline of oral comments to be presented at the hearing and the time they wish to devote to each subject by August 22,1980.

Each speaker will be limited to 10 minutes for an oral presentation exclusive of time consumed by questions from the panel for the Government and answers to these questions.

Because of controlled access restrictions, attendees cannot be admitted beyond the lobby of the Internal Revenue Building until 9:45 a.m. An agenda showing the scheduling of the speakers will be made after outlines are received from the speakers. Copies of the agenda will be available free of charge at the hearing.

This document does not meet the criteria for significant regulations set forth in paragraph 8 of the Treasury Directive on improving government regulations appearing in the Federal Register for Wednesday, November 8, 1978.

By direction of the Commissioner of Internal Revenue.

George H. Jelly, Director, Em ployee Plans and Exempt Organizations Division. |FR Doc. 8 0 -2 2 3 7 8 F ile d 7 -2 4 -8 0 ; 8 :4 5 a m ] BILLING CODE 4830-01-M DEPARTMENT OF THE INTERIOR Office of Surface Mining Reclamation and Enforcement 30 CFR Ch. VII Permanent Regulatory Program; Resubmission of Wyoming Program a g en c y: Office of Surface Mining Reclamation and Enforcement (OSM), U.S. Department of the Interior. ACTION: Proposed rule; reopening of public comment period on Wyoming’s permanent regulatory program. SUMMARY: On May 30,1980, the State of Wyoming resubmitted to the Department of the Interior portions of its proposed permanent regulatory-program under the Surface Mining Control and Reclamation Act of 1977 (SMCRA). The resubmission is intended to implement those requirements found in 30 CFR Chapter VII (the permanent program rules issued by the Secretary of the Interior) which were not approved by the Secretary on February 15,1980. In the course of a lawsuit challenging the Secretary’s rules, certain provisions were suspended or remanded pending further rulemaking. On May 16,1980, the Court hearing the case ordered that the Secretary must disapprove from programs being considered all State provisions incorporating suspended or remanded Federal rules. On June 16, 1980, the Secretary filed a motion requesting the Court to stay this decision. This notice invites public comment on the Secretary’s tentative determination identifying provisions in the Wyoming program which incorporate suspended or remanded Federal rules.

In addition, OSM officials discussed 18 issues raised during review of the Wyoming resubmission with-Wyoming officials by telephone on July 9,1980. The public is invited to comment on those issues.

DATES: All comments must be received by 5:00 p.m. on August 8,1980. ADDRESSES: Comments should be submitted to: Administrative Record, Office of Surface Mining, Brooks Tower, 102015th Street, Denver, Colorado 80202.

Copies of the Wyoming initial program submission and resubmission, the opinions of the Court in the lawsuit discussed below, OSM’s compilation of Wyoming provisions corresponding to suspended and remanded Federal rules and a summary of a July 9,1980, conversation between representatives of Wyoming and OSM, are available for review and copying during normal business hours at:

Office of Surface Mining Reclamation and Enforcement, Brooks Tower, 1020 15th Street, Denver, Colorado 80202. Wyoming Land Quality Division, Department of Environmental Quality, Hathaway Building, Cheyenne, Wyoming 82002.

Land Quality Division, 30 East Grinnel Street, Sheridan, Wyoming 82801. Land Quality Division, 933 Main Street, Lander, Wyoming 82520.

Office of Surface Mining, Room 153, Interior South Building, 1951 Constitution Avenue, Washington, D.C. 20240.

Copies of the Wyoming statutes and regulations contained in Wyoming’s program submission may be obtained on request from: Mr. Murray T. Smith, OSM Region V, Brooks Tower, 102015th Street, Denver, Colorado 80202 (303) 837-5701.

FOR FURTHER INFORMATION CONTACT: Mr. Murray T. Smith at the address listed above.

SUPPLEMENTARY INFORMATION: Wyoming submitted its permanent regulatory program for approval by the Secretary of the Interior on August 15, 1979. After opportunity for public comment on the program’s completeness and adequacy, the Secretary approved the program, in part, and disapproved the program, in part, on February 15, 1980. Notice of that decision and the Secretary’s detailed findings were published in the Federal Register on March 31,1980 (45 FR 20930-20982). Section 503(c) of the Surface Mining Control and Reclamation Act (SMCRA) provides States with the opportunity to resubmit portions of a program that were disapproved. Wyoming submitted revisions to its program on May 30,1980, as a formal program resubmission. Notice of receipt of that resubmission was published in the Federal Register on June 4,1980 (45 FR 37697-37699). That notice summarized the contents of the program resubmission, announced a public hearing, which was held in Cheyenne, Wyoming, on June 19,1980, , and solicited public comments on the resubmission until June 24,1980. Before Wyoming made its initial program submission and its resubmission, challenges to the Secretary’s permanent program regulations were brought by representatives of industry, two States and several environmental groups in the U.S. District Court for the District of Columbia. These suits were consolidated and heard in a single lawsuit entitled—In Re: Permanent

Page 104

49598 Federal Register / Vol. 45, No. 145 / Friday, July 25, 1980 / Proposed Rules Surface Mining Regulation Litigation (Civil Action No. 79-1144). In response to the arguments raised in the challenges, the Secretary voluntarily suspended several permanent program regulations. These suspensions were announced in the Federal Register on Novemberr 27,1979 (44 FR 67942), December 31,1979 (44 FR 77447-77454) and January 30,1980 (45 FR 6913). In two opinions the Court remanded certain other regulations which had been challenged in the lawsuit. These opinions were issued on February 26, 1980, and May 16,1980. A list of all the suspended and remanded regulations was published in the Federal Register on July 7,1980 (45 FR 45604) in a notice concerning the Louisiana program submission.

In its May 16,1980, opinion, the Court ordered the Secretary to affirmatively disapprove any regulation in a State program which incorporates a suspended or remanded regulation. Although the Secretary intends to appeal that portion of the Court’s opinion, he intends to comply with it pending its modification on appeal or as a result of his Application for Stay filed June 16,1980.

In his February 15,1980, decision the Secretary disapproved all of the regulations included in the initial submission because the regulations had not been fully promulgated and contained a number of deficiencies, as identified in the March 31,1980, Federal Register notice. Wyoming included fully enacted, revised regulations in its program resubmission on May 30,1980. Wyoming was aware of the regulations suspended by the Secretary and the regulations remanded by the court. Wyoming made modifications to several of its regulations in light of the suspensions and remands. These modifications are described in Volume 3A of the program resubmission in a memorandum dated May 28,1980, from Nancy Wood, Legal Intern, to the Environmental Quality Council. OSM has prepared a tentative compilation of all Wyoming provisions which are contained in the Wyoming ^submission and which correspond to suspend and remanded Federal regulations. Copies of this compilation are available at the places listed above under “Addresses.” The public and the State are invited to comment on the accuracy and completeness of this compilation and the extent, if any, to which the Secretary should disapprove these provisions.

In this regard, the Secretary has requested Wyoming to identify provisions in its resubmission which reflect remanded and suspended Federal rules. While OSM has not yet received a direct response to this request and will place it in the administrative record when it arrives, the Governor of Wyoming has submitted an affidavit on this subject for use in the Secretary’s Stay application, and a copy is available at the places identified above under “Addresses.”

During review of the resubmission, OSM identified the 18 issues listed below that require clarification. On July 9,1980, OSM officials discussed the issues in a conference call with Wyoming officials. A summary of the discussion is available at the places listed above under “Addresses.” While OSM has not yet received any written material from Wyoming in response to the. discussion, materials received, if any, will be placed in the administrative record at the places identified above under “Addresses.”

(1) Appendix A to the Memorandum of Understandilng between the Wyoming Department of Environmental Quality and the State Engineer appears to contain requirements inconsistent with SMCRA. The applicable regulations are, however, acceptable. The appendix is also labelled “proposed” (see 30 CFR 816.46(q)). (2) Numerical effluent limitations for total suspended solids do not contain lower values set by EPA and OSM for Wyoming (see Rule IV 4a, and 30 CFR 816.42(a)(7), including footnotes 4 and 6). (3) There is no evidence that Wyoming has promulgated a definition for the purpose of advertising the availability of a plan in a permit application (see W.S. 35—11—406(j)(i)). (4) Wyoming’s Rule XIII 2a(3) for self­ bonding allows the applicant to demonstrate that he can meet the Federal net worth requirements or grant a mortgage or security interest. The Federal regulation requires both (30 CFR 806.11(b)(2))..

(5) Wyoming had seemingly eliminated a provision to require the permittee, upon revocation of his permit, to cease operations and complete reclamation or forfeit his bond. The State pointed to Rule XVII 2d(3) which appears to be acceptable. (6) The proposed State window alternative allowing removal of sediment ponds should also show that baseline water quality data are adequate to judge the time of removal. (7) Toxic materials' are defined under Wyoming rules as having “lethal” rather than “detrimental” effects (see Rule I 2(98)).

(8) The State wildlife guideline lacks directives for biological surveys to assure that streams with a potential to support a biological community will be protected (see 30 CFR 816.57(a) and Guideline No. 5).

(9) Monitoring requirement for alluvial valley floors are discretionary under % State rules rather than mandatory (see Rule V 2d(3) and 30 CFR 822.14). (10) Wyoming fails to provide for the award of attorney’s fees as in 43 CFR Part 4.

(11) Wyoming’s rules on intervention in administrative proceedings are in proposed rather than final form. (12) Wyoming promised an Attorney General’s opinion on various issues, including the enforceability of State guidelines, and has yet to. include such an opinion.

(13) It is unclear whether relief from the State performance standards, under the special bituminous performance standards, will only be for reasons of physical impossibility rather than for economic considerations. (14) There is no provision analogous to 30 CFR 786.19(o) which prohibits issuance of a permit that would affect the continued existence of an endangered or threatened species or result in the destruction or adverse modification of their critical habitats. (15) Wyoming permits Council members to have a financial interest direct or indirect, in matters before it. The State does not make it clear that Council members with an interest in the outcome of a specific case are not permitted to participate in the deliberations on such a case. (Summary of public comment.) (16) Wyoftiing provides for publication of a “notice of intended action” rather than general publication of proposed rules in W.S. 9-4-103. A commenter states this procedure appears not to be in accordance with Section 501 of the Act, requiring proposed rules themselves to be published, and may interfere with the public’s exercise of its right to comment. Wyoming does not, howevqr, publish a document similar to the Federal Register. Instead, the State sends copies of all proposed rules to county clerks and to persons who have requested that they be on a mailing list for such rules. These proposed rules are then available for public review and comment. This procedure appears to be acceptable to the Secretary. (17) Wyoming’s discussion of field issuance in Part G.6 of its resubmission appeared to be vague. In the July 9,1980, telephone call, however, the State makes it clear that there will be actual delegation for inspectors to issue notices of violation and cessation orders in the field. The Secretary tentatively finds this aspect of the Wyoming resubmmission acceptable.

Page 105

Federal Register / Vol. 45, No. 145 / Friday, July 25, 1980 / Proposed Rules 49599 (18) One commenter stated that it was unclear when State permit applications would be due in relation to a conditional approval of the program by the Secretary. Wyoming, in the July 9,1980, telephone call, makes it clear that conditional approval is equivalent to final approval for the purpose of permit applications. The Secretary tentatively finds this aspect of the State program acceptable.

The Secretary expects shortly to make a final decision to approve, to approve with conditions, or to disapprove, in whole or in part, the Wyoming program submission. The public comment period on the adequacy of the resubmission is now over. However, the Secretary is soliciting public comments at this time in order to enable the public to assist 4 the Secretary in complying with the Court’s May 16,1980, order. Miscellaneous Findings OSM has determined that pursuant to Section 702(d) of SMCRA, 30 U.S.C. 1292(d), no environmental impact statement need be prepared on the decision on the Wyoming program. The Director of OSM has determined that this document is not a significant rule under E. 0 . 12044 or 43 CFR Part 14, and no regulatory analysis is being prepared on the decision of the Wyoming program.

Dated: July 23,1980.

Walter N. Heine, P.E., Director, Off ice of Surf ace Mining Reclamation and Enforcement. [F R D o c . 2 2 5 7 8 F ile d 7 -2 4 -8 0 ; 8 :4 5 a m ] BILLING CODE 43KMI5-M ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [FRL 1550-4] Approval and Promulgation of Implementation Plans; Ohio a g en cy: U.S. Environmental Protection Agency (EPA).

a c tio n : Proposed rule. su m m ar y: USEPA proposes to approve a revision to the Ohio State Implementation Plan for sulfur dioxide as it applies to the Ohio Edison North Avenue Plant in Mahoning County. The proposed approval is based upon ambient monitoring and emissions data provided by the Ohio Environmental Protection Agency and submitted to USEPA by the Ohio Edison Company that demonstrate that the revised emission limitation will ensure the attainment and maintenance of the National Ambient Air Quality Standards.

d a te: Comments must be received on or before August 25,1980. Requests for a public hearing on this revision must be received no later than August 11,1980. ADDRESSES: Comments and requests for a hearing should be submitted to Gary Gulezian, (5AHAP), Chief, Regulatory Analysis Section, Air Programs Branch, USEPA, Region V, 230 South Dearborn Street, Chicago, Illinois 60604. The docket (#5A-80-7) for the revision is available for inspection and copying dining normal business hours at the above address and at the Central Docket Section, Room 2903B, USEPA, 401M Street, SW, Washington, DC 20460.

FOR FURTHER INFORMATION CONTACT: Debra Marcantonio, Regulatory Analysis Sectioji, USEPA, Region V, 230 South Dearborn Street, Chicago, Illinois 60604, 312-886-6039.

SUPPLEMENTARY INFORMATION: On August 27,1976 (41 FR 36324) the USEPA promulgated regulations establishing a State Implementation Plan (SIP) for the control of sulfur dioxide (S02) in Ohio. This proposed rule will amend that SIP as it applies to the Ohio Edison North Avenue Plant.

Since the current regulations were promulgated, there has been a substantial reduction in the S02 emissions in the Mahoning River Valley (Mahoning and Trumbull Counties) with a significant improvement in the air quality. Consequently, on October 9, 1979 (44 FR 57929) the USEPA redesignated Mahoning and Trumbull Counties as attainment areas for sulfur dioxide.

On March 18,1980, the Ohio Edison Company submitted a request for a revision to the sulfur dioxide plan for their North Avenue steam heating plant in Mahoning County, Ohio. Since the National Ambient Air Quality Standards are currently being proteced, Ohio Edison requested a limit that reflects status quo emissions. This request was supported by ambient monitoring and emissions data for the area that were provide^ by the Ohio Environmental Protection Agency. The data demonstrates that a comparison between emissions and air quality data for the years 1974 and 1978 indicates. _ that the reduction in S02 ground-level ambient air quality concentrations is comparable (and, consequently, is due to) the reduction in S02 emissions, and that the current attainment status of the area will not be threatened by regulating the North Avenue Plant at approximate current emissions. It should also be noted that the 24 hour and annual primary standards were shown to be more constraining than the 3 hour secondary standard. Thus, an emission limitation designed to protect the primary standards will also protect the secondary standards.

A modeling analysis was not performed for this area because of source-terrain interaction problems. Thus no accurate assessment by modeling for Prevention of Significant Deterioration (PSD) increment consumption is possible. It should be noted, however, that the existing SIP is based on a rollback analyses. Consequently, a screening based on rollback techniques was made to approximate PSD increment consumption. This analysis indicates that the SIP revision will not consume all of the available PSD increment. Based upon the Agency’s review of the technical documentation submitted, USEPA has determined that approval of the proposed SIP will not jeopardize the attainment and maintenance of the National Ambient Air Quality Standards. Thus, USEPA proposes to approve the revised emission limitations for the Ohio Edison North Avenue Plant in Mahoning County.

Final promulgation of this revision will follow an analysis of all comments submitted and will depend on its consistency with Section 110 of the Clean Air Act.

Note.—Under Executive Order 12044 (43 FR 12661), USEPA is required to judge whether a regulation is “significant” and, therefore, subject to certain procedural requirements of the Order or whether it may follow other specialized development procedures. USEPA labels these other regulations, “specialized”. I have reviewed this proposed regulation pursuant to the guidance in USEPA’s response to Executive Order 12044, “Improving Environmental Regulations,” signed March 29,1979 by the Administrator and I have determined that Jt is a specialized regulation not subject to the procedural requirements of Executive Order 12044. (Section 110 of the Clean Air Act, as amended 42 USC 7410) Dated: July 18,1980.

John McGuire, Regional Administrator. Part 52 of Chapter I, Title 40 of the Code of Federal Regulations is amended as follows:

Subpart KK—Ohio 1.

§ 52.1881 is amended by revising § 52.1881(b)(40)(iv) as follows: § 52.1881 Control Strategy: Sulfur Oxides (sulfur dioxide).

* * * * *

Page 106

49600 Federal Register / Vol. 45, No. 145 / Friday, July 25, 1980 / Proposed Rules (b) Regulations for the control of sulfur dioxide in the State of Ohio 4e - * * * * (40) In Mahoning County * * * * * * * * (iv) The Ohio Edison Company or any subsequent owner or operator of the North Avenue Steam Plant located in Mahoning County shall not cause or permit the emission of sulfur dioxide from any stack at the North Avenue Steam Plant in excess of 4.75 pounds of sulfur dioxide per million BTU or actual heat input.

* * * * * [ F R D o c . 8 0 -2 2 3 5 4 F ile d 7 -2 4 -8 0 ; 8 :4 5 a m ] BILLING CODE 6560-01-M 40 CFR Parts 162 and 163 [OPP-00126, FRL 1550-3] FIFRA Scientific Advisory Panel; Open Meeting a g e n c y : Environmental Protection Agency (EPA).

ACTION: Proposed rule notice. SUMMARY: There will be a three-day meeting of the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) Scientific Advisory Panel to discuss Subpart M: Data Requirements for Biorational Pesticides of the Guidelines for Registering Pesticides in the United States, and completion of review of the rebuttable presumption against registration (RPAR) on lindane. The meeting will be open to the public. DATE: Wednesday, Thursday and Friday, August 13,14 and 15,1980, from 9:00 a.m. to 5:00 p.m. daily. ADDRESS: The meeting will be held at the: Hospitality House, 2000 Jefferson Davis Highway, Arlington, VA, 703-920- 8600.

FOR FURTHER INFO RM ATION CONTACT: H. Wade Fowler, Jr., Executive Secretary, FIFRA Scientific Advisory Panel (TS-766), Office of Pesticide Programs, Rm. 803, Crystal Mall, Building No. 2,1921 Jefferson Davis Highway, Arlington, VA 22202, 703-557- 7560.

SUPPLEMENTARY INFORM ATION: The agenda for this meeting is: 1. Completion of review action for conclusion of the RPAR on lindane; 2. Formal review by the Panel on Subpart M: Data Requirements for Biorational Pesticides of the Guidelines for Registering Pesticides in the United States;

3. Review of final Sec. 24(c) regulations to meet State special local needs;

4. Completion of any unfinished business from previous Panel meetings; and 5. In addition, the agency may present status reports on other ongoing programs of the Office of Pesticides Programs.

Copies of draft documents concerning item 1 may be obtained by contacting: Robert Brown, Special Pesticides Review Division (TS-791), Rm. 728A, Crystal Mall, Building No. 2, at the address given above, telephone: 703- 557-8193.

Information concerning item 2 may be obtained by contacting William Preston, Hazard Evaluation Division (TS-769), Rm. 800, Crystal Mall, Building No. 2, at the address given above, telephone: 703— •557-1405.

Information coricemingdtem 3 may be obtained by contacting Philip H. Gray, Jr., Office of Pesticide Programs (TS- 766), Environmental Protection Agency, 401 M St. SW., Washington, DC 20460, telephone: 202-472-9400. Any member of the public wishing to attend or submit a paper should contact Dr. H. Wade Fowler, Jr., at the address or phone listed above to be sure that the meeting is still scheduled and to confirm the Panel’s agenda. Interested persons are permitted to file written statements before or after the meeting, and may, upon advance notice to the Executive Secretary, present oral statements to the extent that time permits. All statements will be made part of the record and will be taken into consideration by the Panel in formulating comments or in deciding to waive comments. Persons desirous of making oral statements must notify the Executive Secretary and submit the required number of copies of a summary no later than August 8,1980. Individuals who wish to file written statements are advised to contact the Executive Secretary in a timely manner to be instructed on the format and the number of copies to submit to ensure appropriate consideration by the Panel. The tentative date for the next Scientific Advisory Panel meeting is September 4 and 5,1980. (Sec. 25(d), as amended, (92 Stat. 819; 7 U.S.C. 136); Sec. 10(a)(2), 86 Stat. 770 (5 U.S.C. App.)) Dated: July 17,1980.

Edwin L. Johnson, Deputy Assistant Administrator fo r P esticide Programs.

[ F R D o c . 8 0 -2 2 4 2 6 F ile d 7 -2 4 -8 0 ; 8 :4 5 a m ] BILLING CODE 6560-01-M 40 CFR Part 180 [FRL 1550-7; PP 9F2134/PP 9F2246/P145] N-( 1 -Ethy Ipropy l)-3,4-D im ethy l-2,6- D initrobenzenam ine; Proposed Tolerances AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

SUMMARY: This notice propose that tolerances be established for residues of the herbicide pendimethalin (N-(lethylpropyl)-3,4-dimethyl-2,6dinitrobenzenamine) and its metabolite (4-[(l-ethylpropyl) aminoJ-2-methyl-3,5dinitrobenzyl alcohol in or on the following raw agricultural commodities: Potatoes, and sorghum (fodder, forage, and grain) at 0.1 part per million (ppm). This proposal was submitted by American Cyanamid Company. This proposal would establish the maximum permissible level for residues of pendimethalin in or on the above raw agricultural commodities. EFFECTIVE d a t e : Comments must be received on or before: August 25,1980. FOR FURTHER INFO RM ATION CONTACT: Robert J. Taylor, Product Manager (PM) 25, Registration Division (TS-767), Office of Pesticide Programs, Environmental Protection agency, 401 M Street, SW, Washington, D.C. 20460, 202/755-2196.

SUPPLEMENTARY INFO RM ATION: Notices were published in the Federal Registers of December 14,1978 (43 FR 54380) and September 6,1979 (44 FR 52030) that American Cyanamid Company, PO Box 400, Princeton, NJ 08540, had filed pesticide petitions PP 9F2134 and PP 9F2246, respectively. These petitions proposed that 40 CFR 180.361 be amended by establishing tolerances for the combined residues of the herbicide pendimethalinN-(l-ethylpropyl)-3,4dimethyl-,2,6-dinitrobenzenamine and its metabolite 4-f(l-ethylpropyl)aminoJ- 2-methyl-3,5-dinitrobenzyl alcohol in or on potatoes, sorghum (fodder, forage, and grain) at 0.1 ppm. No comments were received in response to these notices of filing.

The data submitted in the petitions and other relevant material have been evaluated. The toxicological data considered in support of the proposed tolerances included an acute oral LD50 (rats) with a LD5o of 1.25 grams (gm)/ kilogram (kg) for males and a LD50 of 1.05 gm/kg for females, an acute dermal LD5o (rabbits) of greater than 5.0 gm/kg, skin and eye irritation (rabbits)—nonirritating, a 21-day dermal (rabbits) with a no-observed-effect level (NOEL) of 1 gm/kg/day, a 90-day rat feeding study

Page 107

49601 Federal Register / Vol. 45, No. 145 / Friday, July 25, 1980 / Proposed Rule9 with an NOEL of 500 ppm, a 90-day dog feeding study with an NOEL of 62.5 mg/ kg/day, a 18-month oncogensis study (mice) with the NOEL of 500 ppm (no oncogenic effects), a 2-year chronic feeding/oncogensis study (rats) with the NOEL of 100 ppm, for systemic effects and no oncogenic effects npted at 5000 ppm, a dominant lethal study with no effect at 2500 ppm (highest dose tested}, a teratology study (rats) that was not teratogenic or fetotoxic at doses up to 500 mg/kg/day, a cataractogenic study (negative at 3000 ppm), and an Ames mutagenicity assay (negative at levels up to 100 ug/plate).

The toxicological data presently available has been judged adequate to support the proposed tolerances. Studies desirable are a 6-month or longer subchronic feeding study in a non­ rodent species (dog) and a teratology study in a second species. In a letter dated May 1,1980, the petitioner agreed to perform the above studies and to remove the proposed uses from the label should the results of the above studies exceed the risk criteria for chronic toxicity as stated in 40 CFR 162.11. Tolerances have previously been established for residues of the herbicide and its metabolite on com, cottonseed, and soybeans at 0.1 ppm for a theoretical maximum residue contribution (TMRC) of 0.0031 mg/day in a 1.5 kg diet compared with a maximum permissible intake (MPI) of 3.00 mg/day/60 kg person or 0.10 percent of the acceptable daily intake (ADI). The ADI is 0.05 mg/kg/day based on an NOEL of 100 ppm (2-year chronic feeding/oncogenicity study in rats) with a safety factor of 100. This action will increase the percent ADI used up from 0.1% to 0.38%.

The technical preparation of this herbicide contains nitroso contaminant. A risk assessment for the nitroso contaminant in the product and the calculations indicate that if the nitroso contaminant is not in excess of 135 ppm, the associated upper level of risk would not exceed 1 X 10 6 (1/1,000,000). Data submitted to the Agency show the level of the nitroso contaminant is below the level calculated above. Because of the potential risk to humans these tolerances are being proposed at this time to provide an opportunity for public comment.

The nature of the residues of the herbicide in plants and animals is adequately understood. An adequate analytical method (gas chromatography with an electron capture detection system) is available for enforcement purposes. Residues are not likely to occur in eggs, milk, meat, fat, or meat byproducts of livestock from these uses; therefore 40 CFR 180.6 (a)(3) applies. The pesticide is considered useful for the purpose for which the tolerances are sought. There are no other considerations in establishment of these tolerances and it has been determined that the tolerance will protect the public health. Therefore, it is proposed that 40 CFR Part 180 be amended as set forth below.

Any person who has registered or submitted an application for registration of a pesticide, under the Federal Insecticide, Fungicide, and Rodenticide Act, which contains any of the ingredients listed herein,, may request on or before August 25,1980, that this rulemaking proposal be referred to an advisory committee in accordance with section 408(e) of the Federal Food, Drug and Cosmetic Act.

Interested persons are invited to submit written comments on the proposed regulation. The. comments must bear a notation indicated both the subject and the petition and document control number, “PP 9F2134/PP 9F2246/ P145”. All written comments filed in response to this petition will be available for public inspection in the office of Robert J. Taylor from 8:30 a.m. to 4:00 p.m., Monday through Friday. Under Executive Order 12044, EPA is required to judge whether a regulation is “significant” and therefore subject to the procedural requirements of the Order or whether it may follpw other specialized development procedures. EPA labels these other regulations “specialized”. This proposed rule has been reviewed, and it has been determined that it is a specialized regulation not subject to the procedural requirements of Executive Order 12044.

(Sec. 408 (e), 68 Stat. 514 (21 U.S.C. 34a(e))). Dated: July 21,1980.

Douglas D. Campt, Director, Registration Division, O ffice o f Pesticide Programs.

Therefore, it is proposed that Subpart E of 40 CFR Part 180 be amended by alphabetically inserting the following raw agricultural commodities in § 180.361 to read as follows: § 180.361 N-(1-ethylpropyl)-3,4-dimethyl- 2,6-dinitrobenzenamine; tolerances for residues.

Commodities Part per mill­ ion * * * * * Potatoes......... ...... * * * * * ............

0.1 Sorghum, fodder....

............

0.1 Sorghum, forage....

............

0.1 Sorghum, grain___ * ilr * * * .............

0.1 [FR Doc. 80-22352 Filed 7-24-80; 8:45 am]