Federal Register / Vol. 60, No. 44 / Tuesday, March 7, 1995 / Proposed Rules 12525

Dated: February 13, 1995.

Dennis Grams,

Regional Administrator.

[FR Doc. 95–5517 Filed 3–6–95; 8:45 am]

BILLING CODE 6560–50–P

40 CFR Parts 261, 271 and 302

[SWH–FRL–5167–3]

RIN 2050–AD80

Extension of Comment Period for the

Proposed Identification and Listing of

Hazardous Waste/Dye and Pigment

Industries

AGENCY: Environmental Protection

Agency.

ACTION: Proposed rule; extension of

comment period.

SUMMARY: The U.S. Environmental

Protection Agency (EPA or Agency) is

extending the comment period for the

proposed listing determination on a

number of wastes generated during the

production of dyes and pigments, which

appeared in the Federal Register on

December 22, 1994 (see 59 FR 66072–

114). The public comment period for

this proposed rule was to end on March

22, 1995. The purpose of this notice is

to extend the comment period an

additional 120 days beyond that, to end

on July 19, 1995. This extension of the

comment period is provided to allow

commenters an opportunity to comment

further on the proposal.

DATES: EPA will accept public

comments on this proposed listing

determination until July 19, 1995.

Comments postmarked listing

determination until July 19, 1995.

Comments postmarked after the close of

the comment period will be stamped

‘‘late.’’

ADDRESSES: The public must send an

original and two copies of their

comments to EPA RCRA Docket Number

F–94–DPLP–FFFFF, Room 2616, U.S.

EPA, 401 M Street SW., Washington,

DC. The docket is open from 9 am to 4

pm, Monday through Friday, excluding

Federal holidays. The public must make

an appointment to review docket

materials by calling (202) 260–9327. The

public may copy material from any

regulatory docket at no cost for the first

100 pages, and at $0.15 per page for

additional copies.

FOR FURTHER INFORMATION CONTACT: For

technical information concerning this

notice, please contact Wanda Levine,

Office of Solid Waste (5304), U.S.

Environmental Protection Agency, 401

M Street SW., Washington, DC 20460,

(202) 260–7458.

SUPPLEMENTARY INFORMATION: This

proposed rule was issued under Section

3001(b) of RCRA. EPA proposed to list

certain wastes generated during the

production of dyes and pigments

because these wastes may pose a

substantial present or potential risk to

human health or the environment when

improperly managed. See 59 FR 66072–

114 (December 22, 1994) for a more

detailed explanation of the proposed

rule.

These proposed hazardous waste

listings were based in part upon data

claimed as confidential by certain dye

and pigment manufacturers. Although

EPA intends to publish these data or

information derived from these data

claimed as confidential (to the extent

relevant to the proposed listing), the

Agency is unable to do so at the present

time. EPA is pursuing avenues to allow

publication of the information, and

intends to supplement the public record

prior to issuance of a final listing. EPA

is extending the comment period to

provide sufficient time for the public to

comment if and when additional data

are published.

Dated: February 27, 1995.

Elizabeth A. Cotsworth,

Acting Director, Office of Solid Waste.

[FR Doc. 95–5525 Filed 3–6–95; 8:45 am]

BILLING CODE 6560–50–M

40 CFR Parts 261, 271, and 302

[SWH–FRL–5167–2]

RIN 2050–AD80

Postponement of Public Hearing on

the Proposed Identification and Listing

of Hazardous Waste/Dye and Pigment

Industries

AGENCY: Environmental Protection

Agency.

ACTION: Notice of postponement of

public hearing.

SUMMARY: On December 22, 1994 (see 59

FR 66072–114), the U.S. Environmental

Protection Agency (EPA or Agency)

proposed to list as hazardous five

wastes generated during the production

of dyes and pigments, proposed not to

list six other wastes from these

industries, and proposed to defer action

on three wastes due to insufficient

information. At the request of the

parties originally seeking a public

hearing concerning this proposal, the

Agency is announcing the

postponement of the public hearing,

previously scheduled to be held on

March 15, 1995, in Washington, DC.

DATES: The public hearing has not been

rescheduled.

ADDRESSES: The RCRA regulatory

docket that contains the record for this

proposed listing determination on

wastes from the production of dyes and

pigments is located at Room 2616, U.S.

EPA, 401 M Street SW., Washington,

DC. the docket is open from 9 am to 4

pm, Monday through Friday, excluding

Federal holidays. The public must make

an appointment to review docket

materials by calling (202) 260–9327.

FOR FURTHER INFORMATION CONTACT: For

technical information concerning this

notice, please contact Wanda Levine,

Office of Solid Waste (5304), U.S.

Environmental Protection Agency, 401

M Street SW., Washington, DC 20460,

(202) 260–7458.

SUPPLEMENTARY INFORMATION: Since

publication of this proposed rule, the

Agency had received requests for a

public hearing from the trade

association representing the pigments

industry, the Color Pigments

Manufacturers Association (CPMA); and

the trade association representing the

dyes industry, the Ecological and

Toxicological Association of Dyes and

Organic Pigments Manufacturers

(ETAD). After the announcement of the

public hearing in the Wednesday,

February 8, 1995 Federal Register (see

60 FR 7513–4), both associations

requested that it be postponed pending

resolution of several outstanding issues.

In response to these requests, EPA has

decided to postpone the public hearing.

EPA may reschedule the public hearing

in the future, and will provide further

notice at that time.

Dated: March 1, 1995.

Michael H. Shapiro, Director,

Office of Solid Waste.

[FR Doc. 95–5515 Filed 3–6–95; 8:45 am]

BILLING CODE 6560–50–M

DEPARTMENT OF HEALTH AND

HUMAN SERVICES

Public Health Service

42 CFR Part 65a

RIN 0905–AD46

National Institute of Environmental

Health Sciences Hazardous

Substances Basic Research and

Training Grants

AGENCY: National Institutes of Health,

Public Health Service, Department of

Health and Human Services.

ACTION: Notice of proposed rulemaking.

SUMMARY: The National Institutes of

Health (NIH) proposes to issue new

regulations to govern grants for research
12526 Federal Register / Vol. 60, No. 44 / Tuesday, March 7, 1995 / Proposed Rules

and training awarded by the National

Institute of Environmental Health

Sciences (NIEHS) for the purpose of

understanding, assessing, and

attenuating the adverse effect on human

health of exposure to hazardous

substances. The grants are authorized by

section 311(a) of the Comprehensive

Environmental Response,

Compensation, and Liability Act of 1980

(CERCLA), as added by section 209 of

the Superfund Amendments and

Reauthorization Act of 1986.

DATES: Comments must be received on

or before May 8, 1995. The final rule

would become effective on April 6,

1995.

ADDRESSES: Comments should be sent to

Mr. Jerry Moore, NIH Regulatory Affairs

Officer, National Institutes of Health,

Building 31, Room 3B11, 9000 Rockville

Pike, Bethesda, Maryland 20892.

FOR FURTHER INFORMATION CONTACT: Mr.

Jerry Moore at the address above, or

telephone (301) 496–4606 (not a toll-free

number).

SUPPLEMENTARY INFORMATION: Section

311(a) of CERCLA, enacted on October

17, 1986, authorizes the Secretary of the

Department of Health and Human

Services, acting through the Director of

the National Institute of Environmental

Health Sciences (NIEHS) and, in

consultation with the Administrator of

the Environmental Protection Agency,

to administer a program of grants for

basic research and training directed

towards understanding, assessing, and

attenuating the adverse effects on

human health resulting from exposure

to hazardous substances. Grants made

under this program are for coordinated,

multi-component, interdisciplinary

projects linking biomedical research

with related engineering, hydrologic,

and ecologic research, and concomitant

training. NIH published a full

description of the program in the

Federal Register on November 21, 1986

(51 FR 43089), and invited the public to

attend an open meeting on the program

which was held on December 19, 1986.

Subsequently, NIH announced its

intention to issue regulations to

implement this program in the Unified

Agenda of Federal Regulations

published in the Federal Register on

October 21, 1991 (56 FR 53327).

Further, PHS strongly encourages all

grant recipients to provide a smoke-free

workplace and to promote the nonuse of

all tobacco products, and Public Law

103–227, the Pro-Children Act of 1994,

prohibits smoking in certain facilities

that receive Federal funds in which

education, library, day care, health care,

and early childhood development

services are provided to children.

The purpose of this notice is to invite

public comment on the proposed

regulations.

The following statements are

provided as information for the public.

Regulatory Impact Statement

Executive Order 12866 of September

30, 1993, Regulatory Planning and

Review, requires the Department to

prepare an analysis for any rule that

meets one of the E. O. 12866 criteria for

a significant regulatory action; that is,

that may—

Have an annual effect on the economy of

$100 million or more or adversely affect in

a material way the economy, a sector of the

economy, productivity, competition, jobs, the

environment, public health or safety, or

State, local, or tribal, governments or

communities;

Create a serious inconsistency or otherwise

interfere with an action taken or planned by

another agency;

Materially alter the budgetary impact of

entitlements, grants, user fees, or loan

programs or the rights and obligations of

recipients thereof; or

Raise novel legal or policy issues arising

out of legal mandates, the President’s

priorities, or the principles set forth in E.O.

12866.

In addition, the Department prepares

a regulatory flexibility analysis, in

accordance with the Regulatory

Flexibility Act of 1980 (5 U.S.C. chapter

6), if the rule is expected to have a

significant impact on a substantial

number of small entities.

For the reasons outlined below, we do

not believe this proposed rule is

economically significant nor do we

believe that it will have a significant

impact on a substantial number of small

entities. In addition, this proposed rule

is not inconsistent with the actions of

any other agency.

This proposed rule merely codifies

internal policies and procedures of the

Federal government currently used by

NIH to administer the NIEHS Hazardous

Substances Basic Research and Training

Grants Program. The grants do not have

a significant economic or policy impact

on a broad cross-section of the public.

Furthermore, this proposed rule would

only affect those qualified public and

private non-profit institutions of higher

education; generators of hazardous

waste; persons involved in the

detection, assessment, evaluation, and

treatment of hazardous substances;

owners and operators of facilities at

which hazardous substances are located;

and State and local governments

interested in participating in the

program. No individual or institution is

obligated to participate in the grant

program.

For these same reasons, the Secretary

certifies this proposed rule will not have

a significant economic impact on a

substantial number of small entities,

and that a Regulatory Flexibility

Analysis, as defined under the

Regulatory Flexibility Act of 1980, is not

required.

Paperwork Reduction Act

The proposed rule does not contain

information collection requirements

subject to review and approval by the

Office of Management and Budget

(OMB) under the Paperwork Reduction

Act of 1980 (44 U.S.C. chapter 35).

Catalog of Federal Domestic Assistance

The Catalog of Federal Domestic

Assistance (CFDA) numbered program

affected by this proposed rule is: 93.143.

List of Subjects in 42 CFR Part 65a

Grant programs—health, Health,

Medical research, Hazardous

substances.

Dated: October 28, 1994.

Philip R. Lee,

Assistant Secretary for Health.

Approved: February 28, 1995.

Donna E. Shalala,

Secretary.

For reasons set forth in the preamble,

we propose amending title 42 of the

Code of Federal Regulations by adding

a new part 65a as follows.

PART 65a—NATIONAL INSTITUTE OF

ENVIRONMENTAL HEALTH SCIENCES

HAZARDOUS SUBSTANCES BASIC

RESEARCH AND TRAINING GRANTS

Sec.

65a.1 To what programs do these

regulations apply?

65a.2 Definitions.

65a.3 Who is eligible to apply for a grant?

65a.4 What are the program requirements?

65a.5 How to apply.

65a.6 How will applications be evaluated?

65a.7 Awards.

65a.8 How long does grant support last?

65a.9 What are the terms and conditions of

awards?

65a.10 For what purposes may grant funds

be spent?

65a.11 Other HHS policies and regulations

that apply.

Authority: 42 U.S.C. 216, 9660(a).

§ 65a.1 To what programs do these

regulations apply?

(a) The regulations of this part apply

to the award of grants to support

programs for basic research and training

directed towards understanding,

assessing, and attenuating the adverse

effects on human health resulting from

exposure to hazardous substances, as

authorized under section 311(a) of the
Federal Register / Vol. 60, No. 44 / Tuesday, March 7, 1995 / Proposed Rules 12527

Act (42 U.S.C. 9660(a)). The purpose of

these programs is to carry out

coordinated, multicomponent,

interdisciplinary research consisting of

at least three or more biomedical

research projects relating to hazardous

substances and at least one nonbiomedical research project in the fields

of ecology, hydrogeology, and/or

engineering, and including the training

of investigators as part of the grantee’s

overall program.

(b) These regulations also apply to

cooperative agreements awarded to

support the programs specified in

paragraph (a) of this section. References

to ‘‘grant(s)’’ shall include ‘‘cooperative

agreement(s).’’

(c) The regulations of this part do not

apply to:

(1) Research training support under

the National Research Services Awards

Program (see part 66 of this chapter),

(2) Research training support under

the NIH Center Grant programs (see part

52a of this chapter),

(3) Research training support under

traineeship programs (see parts 63 and

64a of this chapter), or

(4) Research training support under

the NIH AIDS Research Loan

Repayment Program authorized under

section 487A of the Public Health

Service Act, as amended (42 U.S.C. 288–

1).

§ 65a.2 Definitions.

As used in this part:

Act means the Comprehensive

Environmental Response,

Compensation, and Liability Act of

1980, as amended (42 U.S.C. 9601 et

seq.).

Award or grant means a grant

awarded under section 311(a) of the Act

(42 U.S.C. 9660(a)).

Director means the Director of the

National Institute of Environmental

Health Sciences, or the Director’s

delegate.

HHS means the Department of Health

and Human Services.

Institution of higher education means

an educational institution in any State

which:

(1) Admits as regular students only

persons having a certificate of

graduation from a school providing

secondary education, or the recognized

equivalent of such a certificate,

(2) Is legally authorized within such

State to provide a program of education

beyond secondary education,

(3) Provides an educational program

for which it awards a bachelor’s degree

or provides not less than a two-year

program which is acceptable for full

credit toward such a degree,

(4) Is a public or other nonprofit

institution, and

(5) Is accredited by a nationally

recognized accrediting agency or

association or, if not so accredited,

(i) Is an institution with respect to

which the Secretary of Education has

determined that there is satisfactory

assurance, considering the resources

available to the institution, the period of

time, if any, during which it has

operated, the effort it is making to meet

accreditation standards, and the

purpose for which this determination is

being made, that the institution will

meet the accreditation standards of such

an agency or association within a

reasonable time, or

(ii) Is an institution whose credits are

accepted, on transfer, by not less than

three institutions which are so

accredited, for credit on the same basis

as if transferred from an institution so

accredited.

(6) The term also includes any school

which provides not less than a one-year

program of training to prepare students

for gainful employment in a recognized

occupation and which meets the

provisions of paragraphs (1), (2), (4), and

(5) of this definition.

(7) The term also includes a public or

nonprofit private educational institution

in any State which, in lieu of the

requirement in paragraph (1) of this

definition, admits as regular students

persons who are beyond the age of

compulsory school attendance in the

State in which the institution is located

and who meet the requirements of

section 1091(d) of Title 20 U.S. Code.

(8) For purposes of this definition, the

Secretary of Education shall publish a

list of nationally recognized accrediting

agencies or associations which that

official determines to be reliable

authority as to the quality of training

offered.

NIEHS means the National Institute of

Environmental Health Sciences, an

organizational component of the

National Institutes of Health, as

authorized under sections 401(b) and

463 of the Public Health Service Act, as

amended (42 U.S.C. 281(b)(1)(L) and

285l).

NIH means the National Institutes of

Health.

Nonprofit, as applied to any agency,

organization, institution, or other entity,

means a corporation or association no

part of the net earnings of which inures

or may lawfully inure to the benefit of

any private shareholder or individual.

PHS means the Public Health Service.

Program means the activity to carry

out research and training supported by

a grant under this part.

Program director means the single

individual designated by the grantee in

the grant application and approved by

the Director, who is responsible for the

scientific and technical direction of the

research component and the conduct of

the training component under a

program.

Project period means the period of

time, from one to five years, specified in

the notice of grant award that NIEHS

intends to support a proposed program

without requiring the program awardee

to recompete for funds.

§ 65a.3 Who is eligible to apply for a

grant?

(a) Public and private nonprofit

institutions of higher education may

apply for awards under this part.

(b) Awardee institutions may carry

out portions of the research or training

components of an award through

contracts with appropriate

organizations, including:

(1) Generators of hazardous wastes;

(2) Persons involved in the detection,

assessment, evaluation, and treatment of

hazardous substances;

(3) Owners and operators of facilities

at which hazardous substances are

located; and

(4) State and local governments.

§ 65a.4 What are the program

requirements?

The applicant shall include the

following in its proposed program for

which support is requested under this

part.

(a) Basic research component. The

program shall include three or more

meritorious biomedical research

projects, including epidemiologic

studies relating to the study of the

adverse effects of hazardous substances

on human health, and at least one

meritorious project involving

hydrogeologic or ecologic research

which shall cumulatively address:

(1) Methods and technologies to

detect hazardous substances in the

environment,

(2) Advanced techniques for the

detection, assessment, and evaluation of

the effects of these substances on human

health,

(3) Methods to assess the risks to

human health presented by these

substances, and

(4) Basic biological, chemical, and/or

physical methods to reduce the amount

and toxicity of these substances.

(b) Training component. The program

shall include training, as part of or in

conjunction with the basic research

component:

(1) Graduate training in

environmental and occupational health

and safety and in public health and

engineering aspects of hazardous waste

control, and/or
12528 Federal Register / Vol. 60, No. 44 / Tuesday, March 7, 1995 / Proposed Rules

(2) Graduate training in the

geosciences, including hydrogeology,

geological engineering, geophysics,

geochemistry, and related fields,

necessary to meet professional

personnel needs in the public and

private sectors and to carry out the

purposes of the Act, and

(3) Worker training relating to

handling hazardous substances, which

includes short courses and continuing

education for State and local health and

environment agency personnel and

other personnel engaged in the handling

of hazardous substances, in the

management of facilities at which

hazardous substances are located, and

in the evaluation of the hazards to

human health presented by these

facilities.

§ 65a.5 How to apply.

Each institution desiring a grant

under this part shall submit an

application at such time and in such

form and manner as the Secretary may

prescribe.

§ 65a.6 How will applications be

evaluated?

The Director shall evaluate

applications through the officers and

employees, and experts and consultants

engaged by the Director for that

purpose, including review by the

National Advisory Environmental

Health Sciences Council in accordance

with peer review requirements set forth

in part 52h of this chapter. The

Director’s first level of evaluation will

be for technical merit and shall take into

account, among other pertinent factors,

the significance of the program, the

qualifications and competency of the

program director and proposed staff, the

adequacy of the applicant’s resources

available for the program, and the

amount of grant funds necessary for

completion of its objectives. A second

level of review will be conducted by the

National Advisory Environmental

Health Sciences Council.

§ 65a.7 Awards.

Criteria. Within the limits of available

funds, the Director may award grants to

carry out those programs which:

(a) Are determined by the Director to

be meritorious; and

(b) In the judgment of the Director,

best promote the purposes of the grant

program, as authorized under section

311(a) of the Act and the regulations of

this part, and best address program

priorities.

§ 65a.8 How long does grant support last?

(a) The notice of grant award specifies

how long NIEHS intends to support the

project without requiring the project to

recompete for funds. This period, called

the project period, may be for 1–5 years.

(b) Generally, the grant will initially

be for one year and subsequent

continuation awards will also be for one

year at a time. A grantee must submit a

separate application at such time and in

such form and manner as the Secretary

may prescribe to have the support

continued for each subsequent year.

Decisions regarding continuation

awards and the funding level of these

awards will be made after consideration

of such factors as the grantee’s progress

and management practices, and the

availability of funds. In all cases,

continuation awards require

determination by the Director that

continued funding is in the best interest

of the Federal Government.

(c) Neither the approval of any

application nor the award of any grant

commits or obligates the Federal

Government in any way to make any

additional, supplemental, continuation

or other award with respect to any

approved application or portion of an

approved application.

(d) Any balance of federally obligated

grant funds remaining unobligated by

the grantee at the end of a budget period

may be carried forward to the next

budget period, for use as prescribed by

the Director, provided a continuation

award is made. If at any time during a

budget period it becomes apparent to

the Director that the amount of Federal

funds awarded and available to the

grantee for that period, including any

unobligated balance carried forward

from prior periods, exceeds the grantee’s

needs for that period, the Director may

adjust the amounts awarded by

withdrawing the excess.

§ 65a.9 What are the terms and conditions

of awards?

In addition to being subject to other

applicable regulations (see § 65a.11 of

this part), grants awarded under this

part are subject to the following terms

and conditions:

(a) Material changes. The grantee may

not materially change the quality,

nature, scope, or duration of the

program unless the approval of the

Director is obtained prior to the change.

(b) Additional conditions. The

Director may impose additional

conditions prior to the award of any

grant under this part if it is determined

by the Director that the conditions are

necessary to carry out the purpose of the

grant or assure or protect advancement

of the approved program, the interests of

the public health, or the conservation of

grant funds.

§ 65a.10 For what purposes may grant

funds be spent?

A grantee shall expend funds it

receives under this part solely in

accordance with the approved

application and budget, the regulations

of this part, the terms and conditions of

the award, and the applicable cost

principles in 45 CFR 74.27.

§ 65a.11 Other HHS policies and

regulations that apply.

Several other HHS policies and

regulations apply to awards under this

part. These include but are not

necessarily limited to:

42 CFR part 50, subpart A—

Responsibility of PHS awardee and

applicant institutions for dealing with

and reporting possible misconduct in

science

42 CFR part 50, subpart D—Public

Health Service grant appeals

procedure

42 CFR part 52h—Scientific Peer

Review of Research Grant

Applications and Research and

Development Contract Projects

45 CFR part 16—Procedures of the

Departmental Grant Appeals Board

45 CFR part 46—Protection of human

subjects

45 CFR part 74—Administration of

grants

45 CFR part 75—Informal grant appeals

procedures

45 CFR part 76—Governmentwide

debarment and suspension

(nonprocurement) and

governmentwide requirements for

drug-free workplace (grants)

45 CFR part 80—Nondiscrimination

under programs receiving Federal

assistance through the Department of

Health and Human Services

effectuation of title VI of the Civil

Rights Act of 1964

45 CFR part 81—Practice and procedure

for hearings under part 80 of this title

45 CFR part 84—Nondiscrimination on

the basis of handicap in programs and

activities receiving Federal financial

assistance

45 CFR part 86—Nondiscrimination on

the basis of sex in education programs

and activities receiving or benefiting

from Federal financial assistance

45 CFR part 91—Nondiscrimination on

the basis of age in HHS programs or

activities receiving Federal financial

assistance

45 CFR part 92—Uniform administrative

requirements for grants and

cooperative agreements to State and

local governments

45 CFR part 93—New restrictions on

lobbying 51 FR 16958 (May 7, 1986)—

NIH Guidelines for Research

Involving Recombinant DNA

Molecules
Federal Register / Vol. 60, No. 44 / Tuesday, March 7, 1995 / Proposed Rules 12529

‘‘Public Health Service Policy on

Humane Care and Use of Laboratory

Animals,’’ Office for Protection from

Research Risks, NIH (Revised

September 1986) 59 FR 14508 (as

republished March 28, 1994)—NIH

Guidelines on the Inclusion of

Women and Minorities as Subjects in

Clinical Research

[FR Doc. 95–5433 Filed 3–6–95; 8:45 am]

BILLING CODE 4140–01–P

FEDERAL COMMUNICATIONS

COMMISSION

47 CFR Part 64

[CC Docket No. 95–20; FCC 95–48]

Computer III Further Remand

Proceedings: Bell Operating Company

Provision of Enhanced Services

AGENCY: Federal Communications

Commission.

ACTION: Notice of proposed rulemaking.

SUMMARY: On October 18, 1994, the

United States Court of Appeals for the

Ninth Circuit remanded in part the

Commission’s BOC Safeguards Order in

the Computer III proceedings, which

had established procedures for the Bell

Operating Companies (BOCs) to offer

enhanced services on a structurally

integrated basis. This Notice of

Proposed Rulemaking responds to the

court decision. The Notice reviews the

nonstructural safeguards that have been

implemented under the Computer III

framework, and asks parties to comment

on the specific issue remanded by the

court, as well as on the broader question

of whether structural separation should

be reimposed for some or all BOC

enhanced services.

DATES: Comments must be filed on or

before April 7, 1995, and reply

comments must be filed on or before

April 28, 1995.

ADDRESSES: Federal Communications

Commission, 1919 M Street NW.,

Washington, DC 20554.

FOR FURTHER INFORMATION CONTACT:

Rose Crellin at (202) 418–1571 or Kevin

Werbach at (202) 418–1597, Policy and

Program Planning Division, Common

Carrier Bureau.

SUPPLEMENTARY INFORMATION: This is a

summary of the Commission’s Notice of

Proposed Rulemaking, FCC 95–48,

adopted February 7, 1995 and released

February 21, 1995. The full text of this

decision is available for inspection and

copying during normal business hours

in the FCC Dockets Branch (Room 239),

1919 M Street NW., Washington, DC.

The complete text of this decision may

also be purchased from the

Commission’s copy contractor,

International Transcription Services,

Inc., 2100 M Street NW., Suite 140,

Washington, DC 20037.

Summary of Notice of Proposed

Rulemaking

1. In the Computer III proceeding,

beginning with the Phase I Order (51 FR

24350 (July 3, 1986)), the Commission

concluded that the Bell Operating

Companies (BOCs) should be permitted

to offer enhanced services without

establishing structurally separate

subsidiaries. Enhanced services use the

existing telephone network to deliver

services—such as voice mail, E-Mail,

and gateways to on-line databases—

beyond a basic transmission offering.

Under structural separation

requirements, the BOCs had to form

subsidiary companies, with separate

personnel, facilities, and equipment, to

offer these services. The need for

safeguards on BOC provision of

enhanced services arises from the fact

that competing enhanced service

providers generally must depend on the

BOC networks to transport their services

to customers. The Commission has

identified two primary forms of

anticompetitive conduct that may arise

from BOC involvement in the enhanced

services marketplace: (1) Improper

cross-subsidization, in which the BOCs

undercut competing enhanced service

providers (ESPs) by shifting costs from

their enhanced services to their

regulated basic services; and (2) access

discrimination, in which BOCs provide

competing ESPs with inferior

interconnection and access to network

services that these companies need for

their enhanced services.

2. In Computer III, the Commission

determined that the benefits of lifting

structural separation requirements—in

terms of increased availability of

enhanced services—outweighed the

risks of anticompetitive conduct by the

BOCs, and that a regime of

nonstructural safeguards could provide

adequate protection against crosssubsidization and access discrimination.

The Commission established a two-step

process in Computer III for lifting

structural separation restrictions.

Initially, BOCs were permitted to offer

individual enhanced services on a

structurally integrated basis once they

had received FCC approval of servicespecific Comparably Efficient

Interconnection (CEI) plans. Those

plans were required to detail how the

BOCs would make the underlying

network services used by their own

enhanced service offerings available to

competing ESPs on an equal access

basis. In the second stage of Computer

III, BOCs were required to develop Open

Network Architecture (ONA) plans

detailing how they would unbundle and

make available basic network services,

and describing how they would comply

with other nonstructural safeguards.

Upon FCC approval of the initial BOC

ONA plans, the remaining structural

separation requirements were to be

lifted. Following a remand from the

Court of Appeals for the Ninth Circuit,

the Commission strengthened and

reaffirmed its regime of nonstructural

safeguards in the 1991 BOC Safeguards

Order (57 FR 4373 (February 5, 1992)).

Between 1992 and 1993, the Common

Carrier Bureau granted full structural

relief to the BOCs upon a showing that

they had complied with the

requirements of the BOC Safeguards

Order, and those decisions were

subsequently ratified by the

Commission.

3. In October, 1994, the United States

Court of Appeals for the Ninth Circuit

partially remanded the BOC Safeguards

Order. The court concluded that the

Commission had scaled back its

conception of ONA from the original

vision in Computer III, and had not

explained how the more limited version

of ONA represented in the approved

BOC ONA plans provided sufficient

protection against BOC access

discrimination. On this basis, the court

held that the FCC’s cost benefit analysis

for fully lifting structural separation

restrictions was flawed. On January 11,

1995, the Common Carrier Bureau

clarified the requirements for BOC

provision of enhanced services after the

Ninth Circuit decision, and granted the

BOCs interim waivers to offer new

services, subject to certain restrictions

and filing requirements, during the

pendancy of remand proceedings.

4. In this Notice of Proposed

Rulemaking, the Commission has

initiated a proceeding to reexamine its

Computer III rules in light of the most

recent Ninth Circuit remand. The

Commission noted that the partial

vacation of the BOC Safeguards Order

generally reinstates the Computer III

service-by-service CEI plan regime,

subject to the modification spelled out

in the Common Carrier Bureau’s waiver

order. The Commission concluded that

the Ninth Circuit had remanded the

specific issue of whether the existing

nonstructural safeguards including the

level of network unbundling under

ONA, are sufficient to justify fully

lifting structural separation

requirements.

5. The Notice of Proposed Rulemaking

reviewed the various nonstructural