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40062 Federal Register / Vol. 70, No.

132 / Tuesday, July 12, 2005 / Notices

West Virginia.8 In short, the WVHCA whether state-action immunity exists is the antitrust violation alleged in the
has provided no argument against entry not whether the WVHCA actively Complaint and is, therefore, in the
of the proposed Final Judgment and supervises some aspects of hospital public interest. Pursuant to Section
does not object to its entry. regulation in West Virginia, but whether 16(d) of the Tunney Act, the United
Consequently, the WVHCA’s comment the WVHCA is empowered to supervise States is submitting the public
does not support disapproving the and has actively supervised the comments and its Response to the
proposed Final Judgment. defendants’ agreements. Federal Register for publication. After
Even if the Court were to consider the The WVHCA does not have such the comments and its Response are
applicability of the state action doctrine, powers and has not actively supervised published in the Federal Register, the
the WVHCA’s comment does not the defendants’ agreements. The West United States will move this court to
demonstrate that the doctrine should Virginia legislature has not empowered enter the proposed Final Judgment.
apply in this case. With regard to the the WVHCA to require parties to private
Dated: June ll, 2005
first part of the state-action test, the agreements to maintain, alter, or
Respectfully submitted,
comment discusses the WVHCA’s abandon their agreements. Thus, the
powers over West Virginia’s CON WVHCA has no power to exercise active For Plaintiff United States:
Kasey Warner,
program. (WVHCA Comment, pp. 8–10). supervision or control over private
But the comment does not discuss agreements such as the cancer and United States Attorney.
By: Fred B. Westfall,
whether those powers allow the open-heart agreements. Moreover, the
WVHCA to authorize market-allocation Assistant United States Attorney.
WVHCA has not purported to actively
agreements between private parties such supervise the cancer and open-heart Peter J. Mucchetti,
as the ones challenged in the Complaint. Joan S. Huggler,
agreements, as it did not (1) develop a
Mitchell H. Glende,
In fact, the WVHCA’s CON powers do factual record concerning the initial or
not allow it to authorize such Attorneys for the United States, Antitrust
ongoing nature and effect of the Division.
agreements.9 Rather the West Virginia agreements, (2) issue a written decision
legislature empowered the WVHCA to United States Department of Justice, 1401 H
approving the agreements, or (3) assess Street, NW., Suite 4000, Washington, DC
administer West Virginia’s CON whether the agreements further criteria 20530.
program only according to legislatively established by the West Virginia
established procedures, consisting legislatures.12 [FR Doc. 05–13533 Filed 7–11–05; 8:45 am]
principally of granting or denying CONs The WVHCA’s rate-regulation BILLING CODE 4410–11–M
to firms wishing to compete.10 Because responsibilities do not satisfy the active-
the West Virginia legislature did not supervision requirement because the
empower the WVHCA to authorize challenged anticompetitive conduct in NATIONAL SCIENCE FOUNDATION
private market-allocation agreements, this matter is not the prices charged by
the defendants’ cancer and open-heart the hospitals to non-governmental Agency Information Collection
agreements do not qualify for state- payors, but rather the terms of the Activities: Comment Request
action immunity. cancer and open-heart agreements. the AGENCY:National Science Foundation.
With regard to the second part of the WVHCA’s rice regulation activities do
state-action test, the comment states that Submission for OMB review;
ACTION:
not directly address market-allocation comment request.
the WVHCA ‘‘clearly has on-going issues or the potential anticompetitive
supervision of West Virginia acute care effects of such allocations as rate SUMMARY: Under the Paperwork
hospitals’’ through West Virginia’s CON regulation may fail to ensure that the Reduction Act of 1995, Pub. L. 104–13
program and regulation of hospital rates hospitals charge rates equal to those (44 U.S.C. 3501 et seq.), and as part of
for non-governmental payors. (WVHCA rates that would have prevailed in a its continuing effort to reduce
Comment, p. 10). However, the active- competitive market and fails to address paperwork and respondent burden, the
supervision requirement of the state- decreases in quality of service, National Science Foundation (NSF) is
action doctrine requires that the State innovation, and consumer choice that inviting the general public and other
actively supervise and exercise ultimate result from an agreement not to Federal agencies to comment on this
control over the challenged compete. proposed continuing information
anticompetitive conduct.11 So the The WVHCA comment also does not collection. This is the second notice for
relevant question for determining address the fact that the defendants’ public comment; the first was published
agreements allocated markets for cancer in the Federal Register at 70 FR 19508
8 The question of state-action immunity may not

properly be before the Court. State-action immunity


and cardiac surgery in the three Virginia and one comment was received. NSF is
is essentially an affirmative defense with the party counties. As the WVHCA is not vested forwarding the proposed submission to
claiming state-action immunity bearing the burden with any power concerning matters in the Office of Management and Budget
of proof in establishing the defense. Ticor Title, 504 the Commonwealth of Virginia, the (OMB) for clearance simultaneously
U.S. at 625; town of Hallie v. City of Eau Claire, 471
U.S. 34, 37–39 (1985); Yeager’s Fuel v.
powers and actions of the WVHCA with the publication of this second
Pennsylvania Power & Light, 22 F.3d 1260, 1267 (3d cannot create state-action immunity for notice.
Cir. 1994); Nugget Hydroelectric, L.P. v. Pacific Gas an agreement not to complete in DATES: Comments regarding these
& Elec. Co., 981 F.2d 429, 434 (9th Cir. 1992). In Virginia.
the present matter, the defendants have chosen not information collections are best assured
to assert a state-action defense but instead to IV. Conclusion of having their full effect if received by
stipulate that the Court may enter the proposed OMB within 30 days of publication in
Final Judgement. After careful consideration of the
9 See W. Va. Code § 16–2D–1 et seq., W. Va. Code WVHCA comment, the United States the Federal Register.
St. R. § 65–7–1 et seq., W. Va. Code § 16–29b–1 et still concludes that entry of the ADDRESSES: Written comments
seq. regarding (a) whether the collection of
10 W. Va. Code § 16–2D–1 et seq., W. Va. Code St.
proposed Final Judgment will provide
an effective and appropriate remedy for information is necessary for the proper
R. § 65–7–1 et seq., W. Va. Code § 16–29B–1 et seq.
See also CIS, pp. 8–10. performance of the functions of NSF,
11 Midcal, 445 U.S. at 105, Patrick v. Burget, 486 12 See FTC v. Ticor Title Ins. Co., 504 U.S. 621, including whether the information will
U.S. 94, 100–101 (1988). 637–639 (1992). have practical utility; (b) the accuracy of

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Federal Register / Vol. 70, No. 132 / Tuesday, July 12, 2005 / Notices 40063

NSF’s estimate of burden including the U.S.C. 1861 et seq.), as amended, states ACTION: License amendment.
validity of the methodology and that ‘‘The Foundation is authorized to
assumptions used; (c) ways to enhance award, within the limits of funds made FOR FURTHER INFORMATION CONTACT: Jill
the quality, utility and clarity of the available * * * scholarships and S. Caverly, Project Manager, Spent Fuel
information to be collected; or (d) ways graduate fellowships for scientific study Project Office, Office of Nuclear
to minimize the burden of the collection or scientific work in the mathematical Material Safety and Safeguards, U.S.
of information on those who are to physical, medical, biological, Nuclear Regulatory Commission,
respond, including through the use of engineering, social, and other sciences Washington, DC 20555. Telephone:
appropriate automated, electronic, at appropriate nonprofit American or (301) 415–6699; fax number: (301) 415–
mechanical, or other technological nonprofit foreign institutions selected 8555; e-mail: jsc1@nrc.gov.
collection techniques or other forms of by the recipient of such aid, for stated SUPPLEMENTARY INFORMATION:
information technology should be periods of time.’’ By letter dated May 23, 2005, Portland
addressed to: Office of Information and The Foundation Fellowship Programs General Electric Company (PGEC)
Regulatory Affairs of OMB, Attention: are designed to meet the following submitted an application to the U.S.
Desk Officer for National Science objectives: Nuclear Regulatory Commission (NRC
Foundation, 725—17th Street, NW., • To assure that some of the Nation’s or Commission), in accordance with
Room 10235, Washington, DC 20503, most talented students in the sciences Title 10 of the Code of Federal
and to Suzanne H. Plimpton, Reports obtain the education necessary to Regulations (10 CFR) 72.48(c)(2) and 10
Clearance Officer, National Science become creative and productive CFR 72.56, requesting an amendment of
Foundation, 4201 Wilson Boulevard, scientific researchers. the Trojan Independent Spent Fuel
Suite 295, Arlington, Virginia 22230 or • To train or upgrade advanced Storage Installation (ISFSI) license for
send e-mail to splimpto@nsf.gov. Copies scientific personnel to enhance their the ISFSI located in Columbia County,
of the submission may be obtained by abilities as teachers and researchers. Oregon. PGEC proposes to revise the
• To promote graduate education in designated controlled area at the ISFSI
calling (703) 292–7556.
the sciences, mathematics, and such that the boundary would be moved
FOR FURTHER INFORMATION CONTACT: engineering at institutions that have from 300 meters from the edge of the
Suzanne H. Plimpton, NSF Reports traditionally served ethnic minorities. storage pad to 200 meters from the edge
Clearance Officer at (703) 292–7556 or • To encourage pursuit of advanced of the storage pad.
send e-mail to splimpto@nsf.gov. science degrees by students who are This application was docketed under
An agency may not conduct or members of ethnic groups traditionally 10 CFR part 72; the ISFSI Docket No. is
sponsor a collection of information under-represented in the Nation’s 72–17. Upon approval of the
unless the collection of information advanced science personnel pool. Commission, the Trojan ISFSI License,
displays a currently valid OMB control The list of fellowship award programs No. SNM–2509, Safety Analysis would
number and the agency informs sponsored by the Foundation may be be amended to allow this action.
potential persons who are to respond to found via FastLane through the NSF The Commission may issue either a
the collection of information that such Web site: http://www.fastlane.nsf.gov. notice of hearing or a notice of proposed
persons are not required to respond to Estimate of Burden: These are annual action and opportunity for hearing in
the collection of information unless it award programs with application accordance with 10 CFR 72.46(b)(1)
displays a currently valid OMB control deadlines varying according to the regarding the proposed amendment or,
number. fellowship program. Public burden may if a determination is made that the
SUPPLEMENTARY INFORMATION: also vary according to program, however proposed amendment does not present
Comment: On April 13, 2005, we it is estimated that each submission is a genuine issue as to whether public
published in the Federal Register (70 averaged to be 12 hours per respondent. health and safety will be significantly
FR 19508) a 60-day notice of our intent Respondents: Individuals. affected, take immediate action on the
to request renewal of this information Estimated Number of Responses: proposed amendment in accordance
collection authority from OMB. In that 5,000. with 10 CFR 72.46(b)(2) and provide
notice, we solicited public comments Estimated Total Annual Burden on notice of the action taken and an
for 60 days ending June 13, 2005. One Respondents: 60,000 hours. opportunity for interested persons to
comment was received from the public Frequency of Responses: Annually. request a hearing on whether the action
notice. The comment came from B. Dated: July 7, 2005. should be rescinded or modified.
Sachau of Floram Park, NJ, via e-mail on Suzanne H. Plimpton, For further details with respect to this
April 18, 2005. Ms. Sachau objected to Reports Clearance Officer, National Science amendment, see the application dated
the Fellowships program, but had no Foundation. May 23, 2005, which is publically
specific suggestions for altering the data [FR Doc. 05–13689 Filed 7–11–05; 8:45 am] available in the records component of
collection. BILLING CODE 7555–01–M NRC’s Agencywide Documents Access
Response: NSF believes that because and Management System (ADAMS). The
the comment does not pertain to the NRC maintains ADAMS, which
collection of information or the required NUCLEAR REGULATORY provides text and image files of NRC’s
forms for which NSF is seeking OMB COMMISSION public documents. These documents
approval, NSF is proceeding with the may be accessed through the NRC’s
clearance request. [Docket No. 72–17] Public Electronic Reading Room on the
Title of Collection: Fellowship Internet at http://www.nrc.gov/reading-
Portland General Electric Company;
Applications and Award Forms. rm/adams.html. If you do not have
Trojan Independent Spent Fuel Storage
OMB Approval Number: 3145–0023. access to ADAMS or if there are
Installation; Notice of Docketing of
Type of Request: Intent to seek problems in accessing the documents
Materials License No. SNM–2509;
approval to extend without revision an located in ADAMS, contact the NRC
Amendment Application
information collection for three years. Public Document Room Reference staff
Abstract: Section 10 of the National AGENCY:U.S. Nuclear Regulatory at 1–800–397–4209, 301–415–4737 or
Science Foundation Act of 1950 (42 Commission. by e-mail to pdr@nrc.gov.

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