issue-1997-05-23•Federal Register proposed rules — 1997-05-23
Federal Register proposed rules — 1997-05-23
issue-1997-05-23Federal Register proposed rules — 1997-05-23Proposed Regulation
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FR Doc. 97-13718 Health Care Programs, Fraud and Abuse; Intent To Form the Negotiated Rulemaking Committee for the Shared Risk Exception
[Federal Register Volume 62, Number 100 (Friday, May 23, 1997)]
[Proposed Rules]
[Pages 28410-28413]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-13718]
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DEPARTMENT OF HEALTH AND HUMAN SERVICES
Office of Inspector General
42 CFR Part 1001
RIN 0991-AA91
Health Care Programs, Fraud and Abuse; Intent To Form the
Negotiated Rulemaking Committee for the Shared Risk Exception
AGENCY: Office of Inspector General (OIG), HHS.
ACTION: Intent to form negotiated rulemaking committee and notice of
meetings.
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SUMMARY: We have been statutorily-mandated under section 216 of the
Health Insurance Portability and Accountability Act (HIPAA) of 1996, to
establish a negotiated rulemaking committee in accordance with the
Negotiated Rulemaking Act and the Federal Advisory Committee Act
(FACA). The committee's purpose would be to negotiate the development
of the interim final rule addressing the shared risk exception, in
section 216 of HIPAA, to the Federal health care programs' anti-
kickback provisions. The committee will consist of representatives of
interests that are likely to be significantly affected by the interim
rule. The committee will be assisted by an impartial facilitator. We
are requesting public comments on whether we have properly identified
interests that will be affected by key issues discussed below.
DATES: Comments will be considered if we receive them at the address
provided below by no later than 5 p.m. on June 9, 1997.
The meetings will be held at 9:00 a.m. on June 17-18, 1997, and
July 28-30, 1997.
ADDRESSES: Please mail or deliver your written comments (1 original and
3 copies) to the following address: Office of Inspector General,
Department of Health and Human Services, Attention: OIG-33-NOI, Room
5246, Cohen Building, 330 Independence Avenue, SW., Washington, DC
20201.
Because of staffing and resource limitations, we cannot accept
comments by facsimile (FAX) transmission. In commenting, please refer
to file code OIG-33-NOI. Comments received timely will be available for
public inspections as they are received, generally beginning
approximately 2 weeks after publication of a document, in Room 5550 of
the Office of Inspector General at 330 Independence Avenue, S.W.,
Washington, D.C., on Monday through Friday of each week from 8:00 a.m.
to 4:30 p.m., (202) 619-0335.
The meetings will be held at the Holiday Inn Capitol, 550 C Street,
SW., Washington, DC 20024.
FOR FURTHER INFORMATION CONTACT:
Joel Schaer, (202) 619-0089, OIG Regulations Officer; Judy Ballard,
(202) 690-7419, Convener.
SUPPLEMENTARY INFORMATION:
I. Negotiated Rulemaking Act
The Negotiated Rulemaking Act, Public Law 101-648 (5 U.S.C. 561-
569), establishes a framework for the conduct of negotiated rulemaking
and encourages agencies to use negotiated rulemaking to enhance the
informal rulemaking process. Under the Act, the head of an agency must
consider whether--
There is a need for a rule;
There are a limited number of identifiable interests that
will be significantly affected by the rule;
There is a reasonable likelihood that a committee can be
convened with a balanced representation of person who (1) Can
adequately represent the interests identified, and (2) are willing to
negotiate in good faith to reach a consensus on the rulemaking;
There is reasonable likelihood that a committee will reach
a consensus on the rulemaking within a fixed period of time;
The negotiated rulemaking process will not unreasonably
delay the development and issuance of a final rule;
The agency has adequate resources and is willing to commit
such resources, including technical assistance, to the committee; and
The agency, to the maximum extent possible consistent with
the legal obligations of the agency, will use the consensus of the
committee with respect to developing the rule proposed by the agency
for notice and comment.
Negotiations are conducted by a committee chartered under the FACA
(5 U.S.C. App. 2). The committee includes an agency representative and
is assisted by an impartial facilitator. The goal of the committee is
to reach consensus on the language or issues involved in a rule. If
consensus is reached, it is used as the basis of the interim final
rule. The process does not affect otherwise
[[Page 28411]]
procedural requirements of the FACA, the Administrative Procedure Act
and other statutes.
II. Subject and Scope of the Rule
A. Need for the Rule
Section 216 of HIPAA (Public Law 104-191) mandates a negotiated
rulemaking process for establishing standards for a statutory exception
to the anti-kickback statute.
B. Subject and Scope of the Rule
The Federal health care programs' anti-kickback statute, set forth
in section 1128B(b) of the Social Security Act (the Act), provides
criminal penalties for individuals or entities that knowingly and
willfully offer, pay, solicit or receive bribes, kickbacks or other
remuneration in order to induce business reimbursed by Medicare or
other Federal health care programs. In addition, for violations of
section 1128B(b), the Department has the authority to exclude a person
or entity from participation in the Medicare or State health care
programs, in accordance with section 1128(b)(7) of the Act.
Because the statutory language of the anti-kickback statute is
quite broad, there was concern that many innocuous or even beneficial
arrangements would be covered by the statute. As a result, section 14
of Public Law 100-93, the Medicare and Medicaid Patient and Program
Protection Act of 1987, authorized the promulgation of regulations
``specifying payment practices that shall not be treated as a criminal
offense under section 1128B(b) of the Social Security Act and shall not
serve as the basis for an exclusion under section 1128(b)(7) of such
Act.'' These have come to be known as the ``safe harbor'' regulations.
To date, we have promulgated two final rules that have established 13
specific areas for ``safe harbor'' protection under the anti-kickback
statute (July 21, 1991 (56 FR 35952) and January 25, 1996 (61 FR
2122)).
Section 216 of HIPAA specifically amends section 128B(b)(3)(F) of
the Act to include a new statutory exception for risk-sharing
arrangements. The provision establishes a new statutory exception from
liability under the anti-kickback statute for remuneration between an
eligible organization under section 1876 of the Act and an individual
or entity providing items or services, or any combination thereof, in
accordance with a written agreement between these parties. The
provision also allows remuneration between an organization and an
individual or entity if a written agreement places the individual or
entity at ``substantial financial risk'' for the cost or utilization of
the items or services provided. Section 216 requires the Department, in
consultation with the Department of Justice, to engage in a negotiated
rulemaking process to establish standards related to this exception for
risk-sharing arrangements. The factors to be considered are (1) The
level of risk appropriate to the size and type of arrangement; (2) the
frequency of assessment and distribution of incentives; (3) the level
of capital contribution; and (4) the extent to which the risk-sharing
arrangement provides incentives to control the cost and quality of
health care services.
C. Issues and Questions To Be Resolved
We anticipate some discussions about the basic approach to the
rule, including what policy issues are properly considered in
determining whether arrangements should be excepted from the anti-
kickback provisions, whether flexibility or certainty in the rule is
more important, and whether the definitions of terms used in the
exception must be consistent with use of those terms in other contexts.
In addition, we anticipate discussion on a limited number of specific
issues.
Specific Issues for Discussion
The negotiated rulemaking will address the following specific
issues.
How is the term ``written agreement'' to be defined?
We expect discussion on whether the agreement should be of minimum
duration, what the agreement should contain and whether unwritten side
agreements should be prohibited.
What does the term ``eligible organization under section
1876 of the Social Security Act'' mean?
We expect discussion on whether this phrase is limited to Medicare
risk contractors (and to arrangements for services provided under
Medicare contracts) or has a broader meaning. In addition, we expect
discussions on whether the first part of the exception applies to
remuneration only if it is in accordance with an agreement where an
``eligible organization'' is a party, or also if in accordance with
``lower level'' agreements, such as one between a physician and a
physician group practice that has an agreement with a health
maintenance organization. There may also be some discussion of the term
``organization'' as used in the second part of the exception.
What is an ``individual or entity providing items or
services or a combination thereof''?
We expect discussion on whether this includes entities such as drug
companies or device manufacturers providing combinations of items and
services, and when this constitutes ``bundling'' that would be harmful
to the Federal health care programs without further protections. We
also expect to address whether the services must be health care
services or could be other services, such as marketing services.
What constitutes ``substantial financial risk for the cost
of utilization of items or service''?
The legislative history of the exception lists certain factors
(such as the level of capital contribution) to be taken into account in
determining whether the risk is substantial. We expect discussion on
how these factors should be taken into account, what constitutes risk
(for example, should bonuses and withholds be treated the same), and
whether special treatment should be given to encourage providers to
assume risk where they do not ordinarily do so or where risk is
difficult to measure. In addition, we anticipate discussion about how
to take into account the total risk-sharing arrangement between the
parties.
Issues Outside the Scope of the Rule
With regard to parameters outside the scope of the rule, the OIG
does not plan to negotiate the following issues--
Whether any existing regulatory exceptions to the anti-
kickback provisions (safe harbors) should be amended, or proposed safe
harbors enacted;
Whether any other new safe harbors should be enacted; or
How the OIG should implement a requirement that it issue
advisory opinions.
In addition, the OIG will not agree to adopt any practices or
concepts that do not contain adequate controls on potential abuse or
manipulation.
We invite public comment on issues not identified.
III. Affected Interests and Potential Participants
The convener has proposed, and we have agreed to accept, the
following organizations as negotiation participants. We believe these
organizations represent an appropriate mix of interests and backgrounds
affected.
American Association of Health Plans
American Association of Retired Persons
American Health Care Association
American Hospital Association
American Medical Association
[[Page 28412]]
American Medical Group Association
Blue Cross Blue Shield Association
Consumer Coalition on Quality in Health Care
Coordinated Care Coalition
Department of Justice
Federation of American Health Systems
Health Industry Manufacturers Association
Heath Insurance Association of America
National Association of Community Health Centers
Independent Insurance Agents of America/National Association of Health
Underwriters
National Association of Medicaid Fraud Control Units
National Association of State Medicaid Directors
Nation Rural Health Association
Pharmaceutical Research and Manufacturers Association
The IPA Association of America
The interests identified included law enforcement agencies, health
programs, health plans, provider organizations, health care
professionals and consumers. In determining whether the potential
effect of the rule on provider and professional groups which sought to
participate is ``significant,'' we considered the extent to which--
Items or services provided by group members are covered by
the relevant programs;
Group members are entering into risk-sharing arrangements;
The anti-kickback provisions have been applied to
prosecute or prohibit arrangements which group members have used or
considered using (either where one party is an ``eligible
organization'' or where risk-sharing may be involved); and
The group actively lobbied for the exception or commented
on related provisions. We also sought to reflect differences in the
type of risk that might be assumed and in the ways individuals or
entities organize to provide items or services.
The intent in establishing the negotiating committee is that all
interests are represented, not necessarily all parties. We believe this
proposed list of participants represents all interests associated with
the rule to be negotiated. We invite comment on this list of
negotiation participants.
IV. Schedule for the Negotiation
We have set a deadline of 6 months beginning with the date of the
first meeting for the committee to complete work on developing the
interim final rule. We intend to terminate the activities of the
committee if it does not appear likely to reach consensus within this
time period.
The first meeting is schedule for June 17-18, 1997 at the Holiday
Inn Capitol, 550 C Street, S.W., Washington, D.C. 20024. The first
day's meeting will begin at 9:00 a.m. The purpose of this meeting will
be discuss in detail how the negotiations will proceed and how the
committee will function. The committee will--
Agree to ground rules for committee operation;
Hear presentations on the anti-kickback statute and
related provisions, as well as what risk-sharing arrangements are being
developed;
Determine how best to address the principal issues; and
If time permits, begin to address those issues.
A second meeting is scheduled for July 28-30, 1997 at the Holiday
Inn Capitol, 550 C Street, S.W., Washington, D.C. 20024, beginning at
9:00 a.m. We expect that by this meeting the committee can complete
action on any procedural matters outstanding from the organizational
meeting, and either begin or continue to address the issues.
Subsequent meetings of the committee would be held approximately
one month apart, in the Washington, D.C. area.
V. Formation of the Negotiating Committee
A. Procedure for Establishing an Advisory Committee
As a general rule, an agency of the Federal Government is required
to comply with the requirements of FACA when it establishes or uses a
group that includes nonfederal members as a source of advice. Under
FACA, an advisory committee is established once the charter has been
approved by the Secretary. We will not begin negotiations until the
charter is approved.
B. Participants
The number of participants in the group should not exceed 25. A
number larger than this could make it difficult to conduct effective
negotations. One purpose of this notice to help determine whether the
interim final rule would significantly affect interests not adequately
represented by the proposed participants. We do not believe that each
potentially affected organization or individual must necessarily have
its own representative. However, each interest must be adequately
represented. Moreover, we must be satisfied that the group as a whole
reflects a proper balance and mix of interests.
C. Requests for Representation
If, in response to this notice, an additional individual or
representative of an interest requests membership or representation in
the negotiating group, we will determine, in consultation with the
convener, whether that individual or representative should be added to
the group. We will make that decision based on whether the individual
or interest--
Would be significantly affected by the rule; and
Is already adequately represented in the negotiating
group.
D. Establishing the Committee
After reviewing any comments on this notice and any requests for
representation, we will take the final steps to form the committee.
VI. Negotiation Procedures
When the committee is formed, the following procedures and
guidelines will apply, unless they are modified as a result of comments
received on this notice or during the negotiating process.
A. Facilitator
We will use an impartial facilitator. The facilitator will not be
involved with the substantive development or enforcement of the
regulation. The facilitator's role is to--
Chair negotiating sessions;
Help the negotiation process run smoothly; and
Help participants define and reach consensus.
B. Good Faith Negotiations
Participants must be willing to negotiate in good faith and be
authorized to do so. We believe this must be accomplished by selection
of senior officials as participants. We believe senior officials are
best suited to represent the interests and viewpoint of their
organizations. This applies to the OIG as well, and we are designating
D. McCarty Thornton, Chief Counsel to the Inspector General, to
represent the OIG.
C. Administrative Support
We will supply logistical, administrative and management support.
If deemed necessary and appropriate, we will provide technical support
to the committee in gathering and analyzing additional data or
information.
D. Meetings
Meetings will be held at the Holiday Inn Capitol, 550 C Street,
S.W., Washington, D.C. 20024 at the convenience of the committee. We
are announcing the first two meetings through this notice, and will
announce
[[Page 28413]]
committee meetings and agendas through further notices in the Federal
Register. Unless announced otherwise, meetings are open to the public.
E. Committee Procedures
Under the general guidance and direction of the facilitator, and
subject to any applicable legal requirements, the members will
establish the detailed procedures for committee meetings that they
consider most appropriate.
F. Defining Consensus
The goal of the negotiating process is consensus. Under the
Negotiated Rulemaking Act, consensus means that each interest concurs
in the result, unless the term is defined otherwise by the committee.
We expect the participants to fashion their working definition of this
term.
G. Failure of Advisory Committee To Reach Consensus
If the committee is unable to reach consensus, the OIG will proceed
to develop an interim final rule. Parties to the negotiation may
withdraw at any time. If this happens, the remaining committee members
and the OIG will evaluate whether the committee should continue.
H. Record of Meetings
In accordance with FACA's requirements, minutes of all committee
meetings will be kept. The minutes will be placed in the public
rulemaking record.
I. Other Information
In accordance with the provisions of Executive Order 12866, this
notice was reviewed by the Office of Management and Budget.
Dated: April 11, 1997.
June Gibbs Brown,
Inspector General.
Approved: May 19, 1997.
Donna E. Shalala,
Secretary.
[FR Doc. 97-13718 Filed 5-21-97; 10:02 am]
BILLING CODE 4150-04-M
Complete official Federal Register PDF
FR Doc. 97-13697 Endangered and Threatened Species; Reopening of Comment Period on Proposed Threatened Status for a Distinct Population Segment of Anadromous Atlantic Salmon (Salmo salar) in Seven Rivers
[Federal Register Volume 62, Number 100 (Friday, May 23, 1997)]
[Proposed Rules]
[Pages 28413-28415]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-13697]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Parts 227 and 425
DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Parts 17 and 425
Endangered and Threatened Species; Reopening of Comment Period on
Proposed Threatened Status for a Distinct Population Segment of
Anadromous Atlantic Salmon (Salmo salar) in Seven Rivers
AGENCIES: National Marine Fisheries Service, National Oceanic and
Atmospheric Administration, Commerce; and Fish and Wildlife Service,
Interior.
ACTION: Reopening of public comment period.
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SUMMARY: The State of Maine formally submitted the Maine Atlantic
Salmon Conservation Plan (Plan) to the National Marine Fisheries
Service and the U.S. Fish and Wildlife Service (collectively the
Services) on March 5, 1997, in response to the Services' proposal to
list Atlantic salmon in seven Maine rivers as threatened (60 FR 50530,
September 29, 1995). The Services have determined that the Plan is
significant new information relating to the proposed rule that merits
review and consideration under the Endangered Species Act (ESA). The
Services also note that information and data collected since the
publication of the proposed rule is also available for review and has
become part of the record for the Services' evaluation of the proposed
listing. This information includes adult returns, redd counts, fry
stocking, habitat assessments, commercial fishing agreements and
management measures, and marine habitat assessment. Stocking, return
and habitat data are provided in the Annual Report of the U.S. Atlantic
Salmon Assessment Committee which is prepared annually for the U.S.
Section to North Atlantic Salmon Conservation Organization. The annual
field activity report prepared by the Maine Atlantic Salmon Authority
and the U.S. Fish and Wildlife Service also documents management
activities for the seven river populations. In order to ensure that the
public has an opportunity to comment on all phases of this proposed
listing, the Services are making the Plan available for review at
selected locations throughout New England and the Washington DC area
[[Page 28414]]
(see ADDRESSES) and can provide guidance on the availability of other
information. Because of the size of the Plan, the Services cannot send
copies upon request. However, the Services will provide the Executive
Summary of the Plan upon request. The Plan is also available for review
on-line and the address is provided below.
DATES: The public comment period is reopened for 30 days. All comments
should be received on or before June 23, 1997.
ADDRESSES: Please send any written comments to Mary Colligan, National
Marine Fisheries Service, One Blackburn Drive, Gloucester,
Massachusetts 01930-2298, or Paul Nickerson, U.S. Fish and Wildlife
Service, 300 Westgate Center Drive, Hadley, Massachusetts 01035.
Individuals are also encouraged to send a copy of their comments to the
State of Maine at the following address: Henry Nichols, Maine Atlantic
Salmon Task Force, Land Use Regulatory Commission, 22 State House
Station, Augusta, Maine 04333-0022.
As stated previously, the Plan is available on-line at the
following address: http://www.state.me.us/governor. Complete copies of
the Maine Atlantic Salmon Conservation Plan are available for review at
the following locations:
1. University of Maine--Machias, Merrill Library, c/o Jean Clemons,
O'Brien Avenue, Machias, Maine 04654.
2. Ellsworth Public Library, c/o Patricia Foster, Director, 46
State Street, Ellsworth, Maine 04605.
3. Bangor Public Library, c/o Sue Wennrick, 145 Harlow Street,
Bangor, Maine 04401.
4. Calais Public Library, c/o Marilyn Diffin, Librarian, 1 Union
Street, Calais, Maine 04619.
5. Portland Public Library, Portland Room, c/o Tom Gaffney, 5
Monument Square, Portland, Maine 04101.
6. Maine State Library, c/o J. Gary Nichols, Librarian, 64 State
House Station, Augusta Complex, Augusta, Maine 04333-0064.
7. Pleasant River Hatchery, c/o Dwayne Shaw, Manager, Columbia
Falls, Maine 04623.
8. Maine Atlantic Salmon Authority, 650 State Street, Bangor, Maine
04401.
9. Camden Public Library, c/o Elizabeth Moran, Director, 55 Main
Street, Camden, Maine 04843.
10. Wiscasset Public Library, c/o Janet Morgan, High Street,
Wiscasset, Maine 04578.
11. Lincolnville Central School Library, c/o Suzanne Martell, Route
235, Lincolnville, Maine 04849.
12. National Marine Fisheries Service, Northeast Regional Office,
Habitat and Protected Resources Division, One Blackburn Drive,
Gloucester, Massachusetts 01930.
13. U.S. Fish and Wildlife Service, 300 Westgate Center Drive,
Hadley, Massachusetts 01035.
14. Craig Brook National Fish Hatchery, East Orland, Maine 04431.
15. U.S. Fish and Wildlife Service, 1033 South Main Street, Old
Town, Maine 04468.
16. National Marine Fisheries Services, Office of Protected
Resources, 1315 East West Highway, Room 13139, Silver Spring, MD 20910.
17. U.S. Fish and Wildlife Service, Division of Endangered Species,
4401 N. Fairfax Drive, Room 452, Arlington, Virginia 22203.
FOR FURTHER INFORMATION CONTACT: Mary Colligan at (508) 281-9116 or
Paul Nickerson at (413) 253-8615.
SUPPLEMENTARY INFORMATION:
Background
On September 29, 1995, the Services published a proposal to list a
distinct population segment, or species, of Atlantic salmon in the
Sheepscot, Ducktrap, Narraguagus, Pleasant, Machias, East Machias, and
Dennys Rivers in Maine as threatened. That proposed designation
contained a special 4(d) provision that invited the State of Maine to
develop a conservation plan for the species. The special 4(d) rule, as
proposed in the September notice (60 FR 50530, September 29, 1995)
would allow for a state plan, approved by the Services, to define the
manner in which certain activities could be conducted without violating
the ESA. Federal furloughs and legislative and funding restrictions
prevented the Services from immediately holding public hearings on the
proposed action. On August 27, 1996, the Services reopened the comment
period and announced three public hearings which were held in Maine on
September 17, 18 and 19. The Services received additional verbal and
written comments during that comment period which, together with all
information submitted by the public, are being reviewed by the Services
in making their final determination whether to list the distinct
population segment of Atlantic salmon as threatened.
Partly in response to the special 4(d) provision in the proposed
rule, the Governor of Maine issued an Executive Order creating a task
force to draft the Maine Atlantic Salmon Conservation Plan. Biologists
from the Services were not members of the task force but did review the
draft Conservation Plan and provide comments. The task force and its
four subgroups have worked on the Plan since October 1995. The four
subgroups addressed the potential threats identified in the Status
Review for Anadromous Atlantic Salmon and the proposed rule. Each of
the subgroups (agriculture, aquaculture, forestry and recreational
fishing) examined its industry or activity to identify potential
impacts to Atlantic salmon and recommended actions to avoid, minimize
and mitigate such impacts. In the fall of 1996, the State held public
hearings on the executive summary of the Plan. Comments received during
that time were considered by the State in its final drafting of the
Plan. The Plan is a State action plan to provide for the protection and
conservation of Atlantic salmon and their habitat within the watersheds
of the seven Maine rivers identified by the Services in the proposed
rule.
Following closure of this comment period, the Services will make a
final determination as to whether listing is warranted, and, if so,
whether the Plan meets the criteria for a special 4(d) rule that could
be promulgated in combination with a final rule designating the
distinct population segment of Atlantic salmon as threatened under the
ESA. The Services request comments from the public specifically
addressing the Plan's effectiveness in meeting the criteria for
acceptance as a special 4(d) rule identified above and contained in
Section 10(a)(2)(B), 50 CFR 17.32(b)(2) and 50 CFR 222.22(c)(2).
In addition, the Services have been requested by the Governor of
Maine to determine that the Plan sufficiently addresses the existing
threats to Atlantic salmon such that its addition to the list of
threatened species is not warranted. The Services make determinations
whether a species is endangered or threatened based on their analysis
of the effect of the factors contained in section 4 of the ESA on the
species and after taking into account those efforts being made to
protect such species. The State-prepared plan is designed to address
those factors in order to prevent further decline. If, in their final
determination, the Services conclude under all of the required
provisions of section 4 of the ESA that the species is not likely to
become endangered in the foreseeable future, and therefore is not
``threatened'' as defined in the ESA, then they will make a finding
that listing is not warranted. This conclusion, while including an
evaluation of the State's conservation plan, must also include an
evaluation of the best scientific and
[[Page 28415]]
commercial data available, i.e. species abundance, new data received
during the comment period, re-evaluation of existing data, and other
federal and/or international efforts being taken to protect the
species.
To assist in their analysis of the species status, the Services
request any comments, which have not already been submitted, which
provide new information or data and/or reflect on the new information
and data that has become available since the publication of the
proposed rule, including the state Plan. Written comments may be
submitted on or before June 23, 1997 to either of the offices in the
ADDRESSES section of this notice. Individuals are also requested to
send a copy of their comments to the State of Maine.
Author: The primary authors of this notice are Mary Colligan and
Paul Nickerson (addresses are above).
Authority: The authority for this section is the ESA (16 U.S.C.
1531-1544).
Dated: May 15, 1997.
Patricia A. Montanio,
Deputy Director, Office of Protected Resources, National Marine
Fisheries Service, National Oceanic and Atmospheric Administration.
Dated: May 16, 1997.
Cathy Short,
Deputy Regional Director, U.S. Fish and Wildlife Service.
[FR Doc. 97-13697 Filed 5-22-97; 8:45 am]
BILLING CODE 3510-08-M
Complete official Federal Register PDF
FR Doc. 97-13661 Unfair Labor Practice Proceedings: Miscellaneous and General Requirements
[Federal Register Volume 62, Number 100 (Friday, May 23, 1997)]
[Proposed Rules]
[Pages 28378-28389]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-13661]
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Proposed Rules
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains notices to the public of
the proposed issuance of rules and regulations. The purpose of these
notices is to give interested persons an opportunity to participate in
the rule making prior to the adoption of the final rules.
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Federal Register / Vol. 62, No. 100 / Friday, May 23, 1997 / Proposed
Rules
[[Page 28378]]
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FEDERAL LABOR RELATIONS AUTHORITY
5 CFR Parts 2423 and 2429
Unfair Labor Practice Proceedings: Miscellaneous and General
Requirements
AGENCY: Federal Labor Relations Authority.
ACTION: Notice of proposed rulemaking; notice of meeting.
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SUMMARY: The Federal Labor Relations Authority proposes to revise
portions of its regulations regarding unfair labor practice (ULP)
proceedings (Part 2423) and miscellaneous and general requirements
(Part 2429). The purpose of the proposed revisions is to streamline the
existing regulations, facilitate dispute resolution, clarify the
matters to be adjudicated, provide more flexibility to the participants
in the ULP process, and simplify the filing and service requirements.
Implementation of the proposed changes will enhance the ULP process,
raising the level of advocacy and facilitating adjudication of ULP
claims.
DATES: Comments must be received on or before June 30, 1997. Meetings
will be held at 10:00 a.m. on June 12, 1997, in Chicago, Illinois, and
at 10:00 a.m. on June 18, 1997, in Washington, D.C.
ADDRESSES: Mail or deliver written comments to the Office of Case
Control, Federal Labor Relations Authority, 607 14th Street, NW.,
Washington, DC 20424-0001. The June 12, 1997 meeting will be held at
the Xerox Centre, 55 West Monroe Street, Room 1610, Chicago, Illinois
60603. The June 18, 1997 meeting will be held at the Federal Labor
Relations Authority's Headquarters, 607 14th St. NW., Washington, DC
20424, 2nd Floor Agenda Room.
FOR FURTHER INFORMATION CONTACT: Regulatory information or registration
for the Washington meeting: Edward Bachman, Office of Case Control, at
the address listed above or by telephone # (202) 482-6540. Registration
for the Chicago meeting: Peter Sutton, Chicago Regional Office, Federal
Labor Relations Authority, 55 West Monroe Street, Suite 1150, Chicago,
Illinois 60603, telephone # (312) 886-3465 ext. 22.
SUPPLEMENTARY INFORMATION: The Federal Labor Relations Authority
established a Task Force to study and evaluate the policies and
procedures in effect concerning the processing of a ULP complaint from
the issuance of the complaint through the transfer of the case to the
Authority after the issuance of a decision and recommended order of an
Administrative Law Judge-- Secs. 2423.12-2423.31 of the current
regulations. To this end, the Task Force published a Federal Register
notice (60 FR 11057) (Mar. 1, 1995) inviting parties to submit written
recommendations on ways to improve the post complaint ULP process. In
addition, the Task Force convened focus groups in order to solicit and
consider customers' views prior to proposing these revisions. The Task
Force's review of the ULP process also included review of certain of
the miscellaneous and general requirements of Part 2429.
The proposed revisions, driven for the most part by the
recommendations of the Task Force and focus group participants,
represent the Federal Labor Relations Authority's intent to simplify,
clarify, and improve the ULP regulations as well as related
miscellaneous and general regulations in Part 2429. The proposed
revisions attempt to eliminate perceptions of unfairness and potential
conflict of interest problems, noted by the Task Force, by moving
certain post-complaint, administrative responsibilities from the
Regional Director to the Office of Administrative Law Judges. Another
major aspect of this revision is the division of Part 2423 into four
sequential subparts: Subpart A--Filing, Investigating, Resolving and
Acting on Charges-- Secs. 2423.2-2423.19; Subpart B--Post Complaint,
Prehearing Procedures--Secs. 2423.20-2423.29; Subpart C--Hearing
Procedures--Secs. 2423.30-2423.39; and Subpart D--Post-transmission and
Exceptions to Authority Procedures--Secs. 2423.40-2423.49. Other than
the minor revisions to Secs. 2423.9 and 2423.11 included in these
proposed revisions, Subpart A, which sets forth the precomplaint
procedures, will be revised at a later date. With regard to Subpart A,
the Office of the General Counsel of the Federal Labor Relations
Authority has already established internal policies to improve the
precomplaint process. Recent examples include the Office of the General
Counsel's policies concerning Settlement, Prosecutorial Discretion,
Scope of Investigation, Intervention, and Quality in ULP
Investigations. Proposed revisions to Subpart A are anticipated for
1998.
In connection with the proposed revisions to Parts 2423 and 2429,
two focus group meetings will be conducted. The first focus group
meeting will be held on June 12, 1997, at the Xerox Centre, 55 West
Monroe Street, Room 1610, Chicago, Illinois 60603, at 10:00 a.m.
Persons interested in attending this first meeting on this proposed
rulemaking should write or call Peter Sutton, Chicago Regional Office,
Federal Labor Relations Authority, 55 West Monroe Street, Suite 1150,
Chicago, Illinois 60603, telephone # (312) 886-3465 ext. 22, to confirm
attendance. The second focus group meeting will be held on June 18,
1997, at the Federal Labor Relations Authority's Headquarters, 607 14th
St. N.W., Washington, D.C. 20424, 2nd Floor Agenda Room, at 10:00 a.m.
Persons interested in attending this second meeting on this proposed
rulemaking should write or call Edward Bachman, Office of Case Control,
at the address and phone number listed in the preceding section to
confirm attendance.
Copies of all written comments will be available for inspection and
photocopying between 8 a.m. and 5 p.m., Monday through Friday, in Suite
415 at the Office of Case Control.
Sectional analyses of the proposed amendments and revisions to Part
2423-- Unfair Labor Practice Proceedings and Part 2429--Miscellaneous
and General Requirements are as follows:
Part 2423--Unfair Labor Practice Proceedings
Section 2423.1
No change is made to the text; however, the section is separated
from all subparts to reflect its applicability to the entire part.
Subpart A--Filing, Investigating, Resolving, and Acting on Charges
Sections 2423.2-2423.8, 2423.10
No changes are made at this time.
[[Page 28379]]
Section 2423.9
Subsection (a)(3) is amended to incorporate changes to the
settlement regulations. Subsection (a)(5) of the current regulations,
which permits the Regional Director to transfer stipulations of fact to
the Authority pursuant to Sec. 2429.1, is omitted to reflect the
proposed deletion and reservation of Sec. 2429.1 from the revised
regulations. Subsection (a)(6) is redesignated as subsection (a)(5).
Section 2423.11
This section is revised in accord with the new sequential
arrangement of the ULP regulations. The general settlement policy in
current subsection (a) is deleted. Revised Sec. 2423.11 consists of the
precomplaint informal settlement language contained in current
subsections (b) (1) and (2). Post complaint, prehearing settlement
provisions, currently in subsections (c)-(d), are revised and removed
to Subpart B, at proposed Sec. 2423.25. Similarly, the provisions
currently contained in subsection (e), regarding settlements after the
opening of the hearing, are revised and moved to Subpart C, proposed
Sec. 2423.31.
Sections 2423.12-2423.19
These sections are reserved.
Subpart B--Post Complaint, Prehearing Procedures
Section 2423.20
Matters related to the complaint and answer, which appear in
Secs. 2423.12 and 2423.13 of the current regulations, are consolidated
here. A new provision in subsection (a)(5), requiring that the
complaint set out the relief sought, is intended to clarify both the
purpose of the complaint and the remedy to be obtained. Subsection
(a)(6) regarding scheduling the date, time, and place of the hearing
reflects the current practice, wherein the Regional Director sets forth
in the complaint the date, time, and place of the hearing established
by the Administrative Law Judge. Subsection (b) retains the 20-day
answer period established in Sec. 2423.13 of the current regulations.
Subsections (c) and (d) transfer to the Administrative Law Judge
certain adjudicatory responsibilities related to the complaint and
answer--including receiving the pleadings, ruling on motions and
amendments, and scheduling conference and hearing dates. Under the
current regulations, many of these items are the responsibility of the
Regional Director. Subsection (d) clarifies the authority of the Chief
Administrative Law Judge to designate judges in an efficient and
expeditious manner.
Section 2423.21
This section incorporates and amends the current motions procedure,
set out in Sec. 2423.22 of the current regulations. Specifically,
subsection (a) sets forth the general requirements of motions
procedure. Subsection (b) shifts the responsibility for ruling on
prehearing motions from the Regional Director to the Administrative Law
Judge. This accords with the changes in responsibility made in the
previous section. In addition, the time deadline for filing prehearing
motions is changed from 10 days to 15 days before the hearing. This is
intended to sharpen the factual and legal issues earlier in the
proceedings and, as a result, clarify the matters being adjudicated.
Requiring earlier party involvement also is expected to facilitate the
resolution of disputes. Subsections (c) and (d) explain the filing
process for post-transmission and interlocutory motions.
Section 2423.22
This section amends the current Sec. 2423.15 by establishing a
standard of review for motions to intervene and clarifying the extent
to which intervenors may participate in the proceedings. These changes
are expected to improve the Administrative Law Judge's decision-making
regarding intervention, improve the Authority's ability to review
rulings on intervention, and, in time, establish a uniform body of law
in this area. The changes generally accord with Merit Systems
Protection Board practice (5 CFR 1201.34).
Section 2423.23
This new section is intended to facilitate the trial process by
both broadening prehearing disclosure obligations and causing this
exchange of information to occur at least 21 days in advance of the
hearing. The 21-day period is necessary in order to permit the parties
time to properly evaluate and meet deadlines involving other pre-
hearing matters, such as motions, subpoenas, and the pre-hearing
conference. For example, the exchange of witness lists and theories of
the case 21 days prior to the hearing will assist parties in making
informed determinations concerning subpoena requests, which requests
must be made 15 days prior to the hearing, pursuant to Sec. 2429.7. By
contrast, under the current regulations (Sec. 2423.14(a)), witness
lists and documents are exchanged immediately before or at the start of
the hearing, and case theories are often not revealed until the hearing
begins. Involving the parties in the disclosure process well in advance
of the hearing should clarify the issues to be litigated and enable
knowledgeable settlement discussions.
Section 2423.24
This new section sets forth an expanded role for the Administrative
Law Judge in the prehearing process, specifically providing for the
Judge's regulation of the course and scheduling of prehearing matters.
Under subsection (c), the Administrative Law Judge has the discretion
to issue a prehearing order. Subsection (d) renders mandatory a
prehearing conference to be scheduled by the Administrative Law Judge,
unless the Administrative Law Judge determines that the conference is
not necessary and no party has moved for a prehearing conference. At
such conferences, which may occur telephonically or in person, the
parties must be prepared to discuss, narrow, and resolve the issues set
forth in the complaint and answer. The matters that may be discussed at
the prehearing conference are specifically set forth in the regulation.
As with Sec. 2423.23, this subsection emphasizes the discussion and
resolution of issues at an earlier stage in the proceedings. Subsection
(e), which grants the Administrative Law Judge authority to impose
sanctions as appropriate, such as the exclusion of evidence or
submissions regarding sanctions, represents a substantial change from
the current regulations. Such authority accords with the regulations of
both the Merit Systems Protection Board (MSPB) (5 CFR 1201.43) and
Equal Employment Opportunity Commission (EEOC) (29 CFR 1614.109(c)) as
well as other administrative agencies. In addition to the new
provisions set forth above, this section also incorporates the current
Sec. 2423.12(c), which addresses changing the date, time, or place of
hearing, as well as some of the powers of the Administrative Law Judge
set forth in the current Sec. 2423.19.
Section 2423.25
The provisions regarding post complaint, prehearing settlements of
an informal or formal nature, that appear in the current Sec. 2423.11,
are moved to this section and appear in subsections (a), (b), and (c).
A significant change to the overall settlement process is the provision
for the settlement judge program in subsection (d). This program
provides the parties with an Administrative Law Judge or other
appropriate official to conduct negotiations for informal settlements.
[[Page 28380]]
The settlement official shall not be the hearing judge unless otherwise
agreed to by the parties. Further, all settlement proceedings under
this program are confidential. This revision implements a successful
trial program that has been tested by the Authority for the past two
years and closely parallels the National Labor Relations Board's
settlement judge program regulations (29 CFR 102.35).
Section 2423.26
This is a new section that supersedes the current stipulation
provision in Sec. 2429.1. As under current stipulation practice, the
parties must agree that no material issue of fact exists. Subsection
(a) of the revised regulation provides that the parties may jointly
move to have a case considered on stipulation. Subsection (b) of the
revised regulation clarifies that stipulations of fact may be submitted
to the Administrative Law Judge rather than to the Authority. If the
stipulation is deemed adequate, the Judge may adjudicate the case on
the basis of the stipulation. This was not expressly authorized in the
current regulations. Subsection (c) alters the current procedure, by
providing that the Authority has discretion to grant such motions when
the Authority concludes that a decision by the Administrative Law Judge
would not assist in resolution of the case.
Section 2423.27
This section creates a specific regulation for the filing of a
motion for summary judgment. The current regulations do not provide for
the filing of such motions, although the Authority has held that
motions for summary judgment
serve the same purpose and have the same requirements as motions for
summary judgment filed with United States District Courts pursuant
to Rule 56 of the Federal Rules of Civil Procedure.
U.S. Equal Employment Opportunity Commission, 51 FLRA 248, 252-53
(1995) (citing Department of the Navy, U.S. Naval Ordnance Station,
Louisville, Kentucky, 33 FLRA 3, 4 (1988)), rev'd on other grounds, No.
88-1861 (D.C. Cir. Aug. 9, 1990) (unpublished). The requirements in
this section are comparable to Rule 56 of the Federal Rules of Civil
Procedure, as well as summary judgment procedures of other federal
agencies. Time limits are established to prevent the filing of summary
judgment motions from interfering with the overall post complaint
process. Also, the requirement that the motion be filed 15 days prior
to the hearing is consistent with the regulations of the EEOC (29 CFR
1614.109(e)).
Sections 2423.28-2423.29
These sections are reserved.
Subpart C--Hearing Procedures
Section 2423.30
This section regarding the general requirements for conduct of the
hearing consolidates and condenses various provisions of current
Secs. 2423.14, 2423.16, 2423.21, 2423.23, and 2423.24. Unnecessary
language is eliminated, particularly with regard to the relevant
procedures established in the Administrative Procedure Act (APA), 5
U.S.C. 554-557. Subsections (a) and (b) incorporate provisions of the
current regulations regarding an open hearing and conduct of the
hearing in accordance with the APA. Subsection (d) restates the current
objection regulation and eliminates antiquated and unclear language in
the current Sec. 2423.21(b), that
[a]utomatic exceptions will be allowed to all adverse rulings.
Under subsection (d), as under the current regulations (Sec. 2423.23)
objections not made before an Administrative Law Judge shall be deemed
waived. Subsections (c), (e), and (f) make no substantive changes from
the current regulations.
Section 2423.31
The current Secs. 2423.17 and 2423.19 are consolidated here. As
with Sec. 2423.30, this section eliminates superfluous language from
the current regulations without substantively changing the powers and
duties of the Administrative Law Judge at hearing. Rather than
delineating specific powers and duties, the revised regulation provides
general guidance regarding the Administrative Law Judge's authority at
the hearing. As in Sec. 2423.30, the powers of the Administrative Law
Judge set forth in the APA at 5 U.S.C. 556, 557, are controlling.
Subsection (c) is a new provision specifying that the Administrative
Law Judge may, under certain circumstances, issue bench decisions.
Settlement procedures to be utilized after the start of the hearing,
currently found in Sec. 2423.11, are set forth in subsection (d). This
settlement subsection retains the current practice with minor editorial
changes.
Section 2423.32
This section retains the requirement regarding the General
Counsel's burden of proof obligation, currently set forth in
Sec. 2423.18. A new provision specifies that the Respondent has the
burden of establishing any specific defenses to charges in the
complaint. This is in accord with established Authority precedent. See,
e.g., Internal Revenue Service (IRS), Washington, D.C. and IRS, Kansas
City Service Center, Kansas City, Missouri, 50 FLRA 661, 670 (1995)
(Respondent is required to identify specific anti-disclosure interests
to support defense that denial of information request is appropriate);
U.S. Department of Transportation, Federal Aviation Administration, New
York Tracon, Westbury, New York, 50 FLRA 338, 345 (1995) (Respondent
has burden of proving elements of Privacy Act defense); Letterkenny
Army Depot, 35 FLRA 113, 118 (1990) (Respondent has burden of rebutting
prima facie case of discrimination by a preponderance of the evidence).
Section 2423.33
This section parallels the current Sec. 2423.25.
Section 2423.34
This section, which addresses matters related to the Administrative
Law Judge's decision, incorporates the requirements set out in the
current Sec. 2423.26.
Sections 2423.35-2423.39
These sections are reserved.
Subpart D--Post-transmission and Exceptions to Authority Procedures
Section 2423.40
All matters related to exceptions, cross-exceptions, and
oppositions, which currently appear in Secs. 2423.26, 2423.27, and
2423.28, are consolidated here. In addition, this section requires that
each of these filings include a supporting brief meeting certain format
requirements. These changes are intended to assist the Authority in
evaluating arguments, accelerate the issuance of decisions, and improve
the quality and responsiveness of the Authority's decisions. This
section also increases the time that respondents have for filing
oppositions.
Section 2423.41
Consolidated into one section are matters related to action by the
Authority and compliance with decisions and orders of the Authority.
These matters appear in current Secs. 2423.29 and 2423.30. As with the
reorganizations made elsewhere in the proposed rules, this
consolidation is intended to facilitate the parties' understanding of
and compliance with the regulations. This section does not make
substantive changes to current regulations and practice.
[[Page 28381]]
Section 2423.42
This section simplifies current Sec. 2423.31, which sets forth the
procedures to be followed when compliance with a backpay order is at
issue. Current practice is continued with one exception--backpay
specifications by the Regional Director are no longer a required part
of the process. Instead, if the backpay amount is in question, the
Regional Director may issue a notice of hearing setting forth the
issues to be resolved without specification. The Respondent is
responsible for filing an answer to the notice of hearing. Thereafter,
the ULP hearing procedures are to be followed, with the Administrative
Law Judge ultimately determining the amount of backpay.
Sections 2423.43-2423.49
These sections are reserved.
Part 2429--Miscellaneous and General Requirements
Section 2429.1
This section is removed and reserved. The proposed Sec. 2423.26
covers this procedure.
Section 2429.7
The spelling of the term ``subpoena'' is changed throughout this
section to reflect the more commonly used and dictionary spelling of
the word. Other than this spelling change, subsections (a) and (b)
remain the same. Subsection (c) amends the current process wherein
requests for subpoenas in ULP proceedings are filed with the Regional
Director and provides instead that such subpoena requests shall be
filed with the Office of Administrative Law Judges. This revision is in
keeping with the goal of eliminating any perception of unfairness or
conflict of interest in ULP proceedings. Subsection (e) provides that
petitions to revoke a subpoena in the ULP process shall be filed with
the Administrative Law Judge. A change applying to all proceedings
before the Authority is that requests for subpoenas shall be granted if
the issuing authority finds that the testimony or documents are
material and relevant to the matters under consideration. The intent of
the regulations is to establish minimal requirements for the obtaining
of a subpoena. In the ULP process, such subpoenas would be issued, on
sufficient showing, by the Office of Administrative Law Judges.
Subsection (d) of the revised regulation also establishes that in all
proceedings, requests for subpoenas made less than 15 days prior to the
opening of the hearing shall be granted if sufficient explanation is
provided as to why the request was not timely filed. Subsection (e)
clarifies the requirements for revocation of subpoenas and describes
the presiding official's role in explaining the procedural or other
ground for the ruling. Subsection (e) also establishes a procedure for
the revocation of a subpoena if, on further review, the subpoena does
not appear appropriate. In the ULP process, subpoena revocation
determinations would be made by an Administrative Law Judge. Subsection
(f) changes the Federal Labor Relations Authority official responsible
for court enforcement of subpoenas in all Authority proceedings from
the General Counsel to the Solicitor of the Authority.
Section 2429.11
This section retains current language regarding interlocutory
appeals and also creates a procedure for filing and a standard for
reviewing interlocutory appeals in the ULP process. This new procedure
is consistent with both MSPB regulations (5 CFR 1201.91-93) and
interlocutory appeals procedure under federal practice (28 U.S.C.
1292(b)).
Section 2429.12
This section, addressing service on parties by Authority officials
in all proceedings, simplifies and facilitates service requirements in
several respects. Corresponding changes are made to other sections
addressing service by the parties (Secs. 2429.22 and 2429.27) and
filing with the Authority (Secs. 2429.21 and 2429.24). Subsection (a)
permits service of process by first-class rather than certified mail,
although service by certified mail is still permitted. The provision
permitting service by telegraph is deleted. In another change, service
by facsimile is permitted for certain procedural and other matters in
order to facilitate and expedite service where appropriate. However,
non-procedural determinations, such as recommended decisions of the
Administrative Law Judge or final decisions of the Authority, which are
likely to be lengthier and not as time-sensitive, will be served by
mail. Subsection (c) is revised to address the changes in subsection
(a); thus, proof of service is now accomplished by certificate of the
individual serving the papers. Date of service, when service is by
mail, remains the same. For facsimile service, the date of service is
the date of facsimile transmission.
Section 2429.13
This section is amended to eliminate the current provision that
necessary transportation and per diem expenses for witnesses are paid
by the employing activity or agency. The revision reflects current
practice in ULP proceedings.
Section 2429.14
The substance of subsection (a) is unchanged, although the language
is simplified and clarified. Subsection (b) is revised in accordance
with the changes regarding payment of witness fees explained in
Sec. 2429.13 above. Thus, witness fees, transportation, and per diem
expenses are paid by the party that calls the witness to testify.
Section 2429.21
No change is proposed to subsection (a) concerning computation of
time; however, comments are solicited concerning how it could be
clarified. Subsection (b) is changed to address the date of filing when
facsimile transmission is utilized and to clarify that if the filing is
by commercial delivery, it shall be considered filed on the date it is
received by the Authority.
Section 2429.22
This section is revised to permit service by facsimile
transmission.
Section 2429.24
Subsection (e) is amended to clarify that documents may be filed by
commercial delivery. The subsection also permits limited filing by
facsimile transmission and parallels the change in Sec. 2429.12(a). A
5-page limitation is placed on such filings to discourage extensive
filings by facsimile that would potentially overload facsimile
equipment capabilities and shift voluminous document reproduction
responsibility from the parties to the Authority office involved.
Section 2429.25
This section is amended to clarify that where filing by facsimile
transmission is permitted, one legible copy shall be a sufficient
submission. The requirement that the parties file an original plus four
copies of documents not served by facsimile transmission is retained.
The extra copies facilitate review by the various Authority officials
with whom the documents are filed.
Section 2429.27
Subsection (b) is amended to permit service by facsimile.
Subsection (d) now reflects the date of service when service is
effected by facsimile.
List of Subjects in 5 CFR Parts 2423 and 2429
Administrative practice and procedure, Government employees, Labor
management relations.
[[Page 28382]]
For the reasons set forth in the preamble, the Federal Labor
Relations Authority proposes to revise 5 CFR Part 2423 and to amend 5
CFR Part 2429 as follows:
1. Part 2423 is revised to read as follows:
PART 2423--UNFAIR LABOR PRACTICE PROCEEDINGS
Sec.
2423.1 Applicability of this part.
Subpart A--Filing, Investigating, Resolving, and Acting on Charges
2423.2 Informal proceedings.
2423.3 Who may file charges.
2423.4 Contents of the charge; supporting evidence and documents.
2423.5 Selection of the unfair labor practice procedure or the
negotiability procedure.
2423.6 Filing and service of copies.
2423.7 Investigation of charges.
2423.8 Amendment of charges.
2423.9 Action by the Regional Director.
2423.10 Determination not to issue complaint; review of action by
the Regional Director.
2423.11 Settlement prior to issuance of a complaint.
2423.12-2423.19 [Reserved]
Subpart B--Post Complaint, Prehearing Procedures
2423.20 Issuance and contents of the complaint; answer to the
complaint; amendments; role of Office of the Administrative Law
Judges.
2423.21 Motions procedure.
2423.22 Intervenors.
2423.23 Prehearing disclosure.
2423.24 Powers and duties of the Administrative Law Judge during
prehearing proceedings.
2423.25 Post Complaint, Prehearing Settlements.
2423.26 Stipulations of fact submissions.
2423.27 Summary judgment motions.
2423.28-2423.29 [Reserved]
Subpart C--Hearing Procedures
2423.30 General rules.
2423.31 Powers and duties of the Administrative Law Judge at the
hearing.
2423.32 Burden of proof before the Administrative Law Judge.
2423.33 Posthearing briefs.
2423.34 Decision and record.
2423.35-2423.39 [Reserved]
Subpart D--Post-transmission and Exceptions to Authority Procedures
2423.40 Exceptions; oppositions and cross-exceptions; waiver.
2423.41 Action by the Authority; compliance with Authority
decisions and orders.
2423.42 Backpay proceedings.
2423.43-2423.49 [Reserved]
Authority: 5 U.S.C. 7134.
Sec. 2423.1 Applicability of this part.
This part is applicable to any charge of alleged unfair labor
practices filed with the Authority on or after January 11, 1979.
Subpart A--Filing, Investigating, Resolving, and Acting on Charges
Sec. 2423.2 Informal proceedings.
(a) The purposes and policies of the Federal Service Labor-
Management Relations Statute can best be achieved by the cooperative
efforts of all persons covered by the program. To this end, it shall be
the policy of the Authority and the General Counsel to encourage all
persons alleging unfair labor practices and persons against whom such
allegations are made to meet and, in good faith, attempt to resolve
such matters prior to the filing of unfair labor practice charges with
the Authority.
(b) In furtherance of the policy referred to in paragraph (a) of
this section, and noting the six (6) month period of limitation set
forth in 5 U.S.C. 7118(a)(4), it shall be the policy of the Authority
and the General Counsel to encourage the informal resolution of unfair
labor practice allegations subsequent to the filing of a charge and
prior to the issuance of a complaint by the Regional Director.
(c) In order to afford the parties an opportunity to implement the
policy referred to in paragraphs (a) and (b) of this section, the
investigation of an unfair labor practice charge by the Regional
Director will normally not commence until the parties have been
afforded a reasonable amount of time, not to exceed 15 days from the
filing of the charge, during which period the parties are urged to
attempt to informally resolve the unfair labor practice allegation.
Sec. 2423.3 Who may file charges.
An activity, agency or labor organization may be charged by any
person with having engaged in or engaging in any unfair labor practice
prohibited under 5 U.S.C. 7116.
Sec. 2423.4 Contents of the charge; supporting evidence and documents.
(a) A charge alleging a violation of 5 U.S.C. 7116 shall be
submitted on forms prescribed by the Authority and shall contain the
following:
(1) The name, address and telephone number of the person(s) making
the charge;
(2) The name, address and telephone number of the activity, agency,
or labor organization against whom the charge is made;
(3) A clear and concise statement of the facts constituting the
alleged unfair labor practice, a statement of the section(s) and
subsection(s) of chapter 71 of title 5 of the United States Code
alleged to have been violated, and the date and place of occurrence of
the particular acts; and
(4) A statement of any other procedure invoked involving the
subject matter of the charge and the results, if any, including whether
the subject matter raised in the charge:
(i) Has been raised previously in a grievance procedure;
(ii) Has been referred to the Federal Service Impasses Panel, the
Federal Mediation and Conciliation Service, the Equal Employment
Opportunity Commission, the Merit Systems Protection Board or the
Special Counsel of the Merit Systems Protection Board for consideration
or action; or
(iii) Involves a negotiability issue raised by the charging party
in a petition pending before the Authority pursuant to Part 2424 of
this subchapter.
(b) Such charge shall be in writing and signed and shall contain a
declaration by the person signing the charge, under the penalties of
the Criminal Code (18 U.S.C. 1001), that its contents are true and
correct to the best of that person's knowledge and belief.
(c) When filing a charge, the charging party shall submit to the
Regional Director any supporting evidence and documents.
Sec. 2423.5 Selection of the unfair labor practice procedure or the
negotiability procedure.
Where a labor organization files an unfair labor practice charge
pursuant to this part which involves a negotiability issue, and the
labor organization also files pursuant to Part 2424 of this subchapter
a petition for review of the same negotiability issue, the Authority
and the General Counsel ordinarily will not process the unfair labor
practice charge and the petition for review simultaneously. Under such
circumstances, the labor organization must select under which procedure
to proceed. Upon selection of one procedure, further action under the
other procedure will ordinarily be suspended. Such selection must be
made regardless of whether the unfair labor practice charge or the
petition for review of a negotiability issue is filed first.
Notification of this selection must be made in writing at the time that
both procedures have been invoked, and must be served on the Authority,
the appropriate Regional Director and all parties to both the unfair
labor practice case and the negotiability case. Cases which solely
involve an agency's allegation that the duty to bargain in good faith
does not extend to the matter proposed to be bargained and which do not
involve actual or contemplated
[[Page 28383]]
changes in conditions of employment may only be filed under Part 2424
of this subchapter.
Sec. 2423.6 Filing and service of copies.
(a) An original and four (4) copies of the charge together with one
copy for each additional charged party named shall be filed with the
Regional Director for the region in which the alleged unfair labor
practice has occurred or is occurring. A charge alleging that an unfair
labor practice has occurred or is occurring in two or more regions may
be filed with the Regional Director for any such region.
(b) Upon the filing of a charge, the charging party shall be
responsible for the service of a copy of the charge (without the
supporting evidence and documents) upon the person(s) against whom the
charge is made, and for filing a written statement of such service with
the Regional Director. The Regional Director will, as a matter of
course, cause a copy of such charge to be served on the person(s)
against whom the charge is made, but shall not be deemed to assume
responsibility for such service.
(c) A charge will be deemed to be filed when it is received by the
appropriate Regional Director in accordance with the requirements in
paragraph (a) of this section.
Sec. 2423.7 Investigation of charges.
(a) The Regional Director, on behalf of the General Counsel, shall
conduct such investigation of the charge as the Regional Director deems
necessary. Consistent with the policy set forth in Sec. 2423.2, the
investigation will normally not commence until the parties have been
afforded a reasonable amount of time, not to exceed 15 days from the
filing of the charge, to informally resolve the unfair labor practice
allegation.
(b) During the course of the investigation all parties involved
will have an opportunity to present their evidence and views to the
Regional Director.
(c) In connection with the investigation of charges, all persons
are expected to cooperate fully with the Regional Director.
(d) The purposes and policies of the Federal Service Labor-
Management Relations Statute can best be achieved by the full
cooperation of all parties involved and the voluntary submission of all
potentially relevant information from all potential sources during the
course of the investigation. To this end, it shall be the policy of the
Authority and the General Counsel to protect the identity of
individuals and the substance of the statements and information they
submit or which is obtained during the investigation as a means of
assuring the Authority's and the General Counsel's continuing ability
to obtain all relevant information.
Sec. 2423.8 Amendment of charges.
Prior to the issuance of a complaint, the charging party may amend
the charge in accordance with the requirements set forth in
Sec. 2423.6.
Sec. 2423.9 Action by the Regional Director.
(a) The Regional Director shall take action which may consist of
the following, as appropriate:
(1) Approve a request to withdraw a charge;
(2) Refuse to issue a complaint;
(3) Approve a written settlement agreement in accordance with the
provisions of Part 2423;
(4) Issue a complaint; or
(5) Withdraw a complaint.
(b) Parties may request the General Counsel to seek appropriate
temporary relief (including a restraining order) under 5 U.S.C.
7123(d). The General Counsel will initiate and prosecute injunctive
proceedings under 5 U.S.C. 7123(d) only upon approval of the Authority.
A determination by the General Counsel not to seek approval of the
Authority for such temporary relief is final and may not be appealed to
the Authority.
(c) Upon a determination to issue a complaint, whenever it is
deemed advisable by the Authority to seek appropriate temporary relief
(including a restraining order) under 5 U.S.C. 7123(d), the Regional
Attorney or other designated agent of the Authority to whom the matter
has been referred will make application for appropriate temporary
relief (including a restraining order) in the district court of the
United States within which the unfair labor practice is alleged to have
occurred or in which the party sought to be enjoined resides or
transacts business. Such temporary relief will not be sought unless the
record establishes probable cause that an unfair labor practice is
being committed, or if such temporary relief will interfere with the
ability of the agency to carry out its essential functions.
(d) Whenever temporary relief has been obtained pursuant to 5
U.S.C. 7123(d) and thereafter the Administrative Law Judge hearing the
complaint, upon which the determination to seek such temporary relief
was predicated, recommends dismissal of such complaint, in whole or in
part, the Regional Attorney or other designated agent of the Authority
handling the case for the Authority shall inform the district court
which granted the temporary relief of the possible change in
circumstances arising out of the decision of the Administrative Law
Judge.
Sec. 2423.10 Determination not to issue complaint; review of action by
the Regional Director.
(a) If the Regional Director determines that the charge has not
been timely filed, that the charge fails to state an unfair labor
practice, or for other appropriate reasons, the Regional Director may
request the charging party to withdraw the charge, and in the absence
of such withdrawal within a reasonable time, decline to issue a
complaint.
(b) If the Regional Director determines not to issue a complaint on
a charge which is not withdrawn, the Regional Director shall provide
the parties with a written statement of the reasons for not issuing a
complaint.
(c) The charging party may obtain a review of the Regional
Director's decision not to issue a complaint by filing an appeal with
the General Counsel within 25 days after service of the Regional
Director's decision. The appeal shall contain a complete statement
setting forth the facts and reasons upon which it is based. A copy of
the appeal shall also be filed with the Regional Director. In addition,
the charging party should notify all other parties of the fact that an
appeal has been taken, but any failure to give such notice shall not
affect the validity of the appeal.
(d) A request for extension of time to file an appeal shall be in
writing and received by the General Counsel not later than 5 days
before the date the appeal is due. The charging party should notify the
Regional Director and all other parties that it has requested an
extension of time in which to file an appeal, but any failure to give
such notice shall not affect the validity of its request for an
extension of time to file an appeal.
(e) The General Counsel may sustain the Regional Director's refusal
to issue or re-issue a complaint, stating the grounds of affirmance, or
may direct the Regional Director to take further action. The General
Counsel's decision shall be served on all the parties. The decision of
the General Counsel shall be final.
Sec. 2423.11 Settlement prior to issuance of a complaint.
(a) Prior to the issuance of any complaint or the taking of other
formal action, the Regional Director will afford the Charging Party and
the Respondent
[[Page 28384]]
a reasonable period of time in which to enter into an informal
settlement agreement to be approved by the Regional Director. Upon
approval by the Regional Director and compliance with the terms of the
informal settlement agreement, no further action shall be taken in the
case. If the Respondent fails to perform its obligations under the
informal settlement agreement, the Regional Director may determine to
institute further proceedings.
(b) In the event that the Charging Party fails or refuses to become
a party to an informal settlement agreement offered by the Respondent,
if the Regional Director concludes that the offered settlement will
effectuate the policies of the Federal Service Labor-Management
Relations Statute, the Regional Director shall enter into the agreement
with the Respondent and shall decline to issue a complaint. The
Charging Party may obtain a review of the Regional Director's action by
filing an appeal with the General Counsel in accordance with
Sec. 2423.10(c). The General Counsel shall take action on such appeal
as set forth in Sec. 2423.10(e).
Secs. 2423.12-2423.19 [Reserved]
Subpart B--Post Complaint, Prehearing Procedures
Sec. 2423.20 Issuance and contents of the complaint; answer to the
complaint; amendments; role of Office of Administrative Law Judges.
(a) Complaint. Whenever formal proceedings are deemed necessary,
the Regional Director shall file and serve, in accordance with
Sec. 2429.12 of this Subchapter, a complaint with the Office of
Administrative Law Judges. The decision to issue a complaint shall not
be subject to review. Any complaint may be withdrawn by the Regional
Director prior to the hearing. The complaint shall set forth:
(1) Notice of the charge;
(2) The basis for jurisdiction;
(3) The facts alleged to constitute an unfair labor practice;
(4) The particular sections of 5 U.S.C., chapter 71 and the rules
and regulations involved;
(5) The relief sought;
(6) Notice of the date, time, and place that a hearing will take
place before an Administrative Law Judge; and
(7) A brief statement explaining the nature of the hearing.
(b) Answer. Within 20 days after the date of service of the
complaint, the Respondent shall file and serve, in accordance with Part
2429 of this Subchapter, an answer with the Office of Administrative
Law Judges. The answer shall admit, deny, or explain each allegation of
the complaint. If the Respondent has no knowledge of an allegation or
insufficient information as to its truthfulness, the answer shall so
state. Absent a showing of good cause to the contrary, failure to file
an answer or respond to any allegation shall constitute an admission.
Motions to extend the filing deadline shall be filed in accordance with
Sec. 2423.21.
(c) Amendments. The Regional Director may amend the complaint at
any time before the answer is filed. The Respondent then has 20 days
from the date of service of the amended complaint to file an answer
with the Office of Administrative Law Judges. The answer may be amended
by the Respondent within 20 days after the answer is filed. Thereafter,
any requests to amend the complaint or answer must be made by motion to
the Office of Administrative Law Judges.
(d) Office of Administrative Law Judges. Pleadings, motions,
conferences, hearings, and other matters throughout as specified in
Subparts B, C, and D shall be administered by the Office of
Administrative Law Judges. The Chief Administrative Law Judge, or any
Administrative Law Judge designated by the Chief Administrative Law
Judge, shall administer any matters properly submitted to the Office of
Administrative Law Judges. Throughout subparts B, C, and D of this
part, ``Administrative Law Judge'' refers to the Chief Administrative
Law Judge or his or her designee.
Sec. 2423.21 Motions procedure.
(a) General requirements. All motions, except those made during a
prehearing conference or hearing, shall be in writing. Motions for an
extension of time, postponement of a hearing, or any other procedural
ruling shall include a statement of the position of the other parties
on the motion. All written motions and responses shall satisfy the
filing and service requirements of part 2429 of this subchapter.
(b) Motions made to the Administrative Law Judge. Prehearing
motions and motions made at the hearing shall be filed with the
Administrative Law Judge. Unless otherwise specified in Subparts B or C
of this part, or otherwise directed or approved by the Administrative
Law Judge, prehearing motions shall be filed at least 15 days prior to
the hearing, and responses to both prehearing motions and motions made
at the hearing shall be filed within 5 days after the date of service
of the motion. Posthearing motions shall be filed within 15 days after
the date the hearing closes, and responses shall be filed within 5 days
after the date of service of the motion. Motions to correct the
transcript shall be filed with the Administrative Law Judge.
(c) Post-transmission motions. After the case has been transmitted
to the Authority, motions shall be filed with the Authority.
(d) Interlocutory appeals. Motions for an interlocutory appeal of
any ruling and responses shall be filed in accordance with this section
and Sec. 2429.11 of this subchapter.
Sec. 2423.22 Intervenors.
Motions for permission to intervene and responses shall be filed in
accordance with Sec. 2423.21. Such motions shall be granted upon a
showing that the outcome of the proceeding is likely to directly affect
the movant's rights or duties. Intervenors may participate only: on the
issues determined by the Administrative Law Judge to affect them; and
to the extent permitted by the Judge. Denial of such motions may be
appealed pursuant to Sec. 2423.21(d).
Sec. 2423.23 Prehearing disclosure.
Unless otherwise directed or approved by the Judge, the parties
shall exchange the following items at least 21 days prior to the
hearing:
(a) Proposed witness lists, including a brief synopsis of the
expected testimony of each witness;
(b) Copies of documents, with an index, to be offered into
evidence; and
(c) A brief statement of the theory of the case, including any and
all defenses to the charges, and citations to any precedent relied
upon.
Sec. 2423.24 Powers and duties of the Administrative Law Judge during
prehearing proceedings.
(a) Prehearing procedures. The Administrative Law Judge shall
regulate the course and scheduling of prehearing matters, including
prehearing orders, conferences, disclosure, motions, and subpoena
requests.
(b) Changing date, time, or place of hearing. After issuance of the
complaint or any prehearing order, the Administrative Law Judge may,
upon his or her own motion or proper cause shown by any party through
the motions procedure in Sec. 2423.21, change the date, time, or place
of the hearing.
(c) Prehearing order. (1)The Administrative Law Judge may issue a
prehearing order confirming or changing:
(i) The date, time, or place of the hearing;
(ii) The schedule for prehearing disclosure of witness lists and
[[Page 28385]]
documents intended to be offered into evidence at the hearing;
(iii) The date for submission of procedural and substantive
motions;
(iv) The date, time, and place of the prehearing conference; and
(v) Any other matter pertaining to prehearing or hearing
procedures.
(2) The prehearing order shall be served in accordance with
Sec. 2429.12 of this Subchapter.
(d) Prehearing conferences. The Administrative Law Judge shall
conduct one or more prehearing conferences, either by telephone or in
person, at least 7 days prior to the hearing date, unless the
Administrative Law Judge determines that a prehearing conference would
serve no purpose and no party has moved for a prehearing conference in
accordance with Sec. 2423.21. If a prehearing conference is held, all
parties must participate and be prepared to discuss, narrow, and
resolve the issues set forth in the complaint and answer. The
Administrative Law Judge may either prepare and file for the record a
written summary of actions taken at the conference or direct a party to
do so. Summaries of the conference shall be served on all parties in
accordance with Sec. 2429.12 of this Subchapter.The following matters
may also be considered at the prehearing conference:
(1) Settlement of the case, either by the Judge conducting the
prehearing conference or pursuant to Sec. 2423.25;
(2) Admissions of fact, disclosure of contents and authenticity of
documents, and stipulations of fact;
(3) Objections to the introduction of evidence at the hearing,
including oral or written testimony, documents, papers, exhibits, or
other submissions proposed by a party;
(4) Subpoena requests;
(5) Any matters subject to official notice;
(6) Outstanding motions; or
(7) Any other matter that may expedite the hearing or aid in the
disposition of the case.
(e) Sanctions. The Administrative Law Judge may impose sanctions
upon the parties as necessary and appropriate under the circumstances.
Such authority includes, but is not limited to, the power to:
(1) Prohibit a party who fails to comply with any requirement of
Subpart B or C of this part from, as appropriate, introducing evidence,
calling witnesses, or raising objections to the introduction of
evidence or testimony of witnesses at the hearing.
(2) Refuse to consider any submission that is not filed in
compliance with Subparts B or C of this part.
Sec. 2423.25 Post Complaint, Prehearing Settlements.
(a) Informal and formal settlements. Post complaint settlements may
be either informal or formal.
(1) Informal settlement agreements provide for withdrawal of the
complaint by the Regional Director and are not subject to approval by
or an order of the Authority. If the Respondent fails to perform its
obligations under the informal settlement agreement, the Regional
Director may re-institute formal proceedings consistent with this
Subpart.
(2) Formal settlement agreements are subject to approval by the
Authority, and include the parties' agreement to waive their right to a
hearing and acknowledgment that the Authority may issue an order
requiring the Respondent to take action appropriate to the terms of the
settlement. The formal settlement agreement shall also contain the
Respondent's consent to the Authority's application for the entry of a
decree by an appropriate federal court enforcing the Authority's order.
(b) Informal settlement procedure. If the Charging Party and the
Respondent enter into an informal settlement agreement that is accepted
by the Regional Director, the Regional Director shall withdraw the
complaint and approve the informal settlement agreement. If the
Charging Party fails or refuses to become a party to an informal
settlement agreement offered by the Respondent, and the Regional
Director concludes that the offered settlement will effectuate the
policies of the Federal Service Labor-Management Relations Statute, the
Regional Director shall enter into the agreement with the Respondent
and shall withdraw the complaint. The Charging Party then may obtain a
review of the Regional Director's action by filing an appeal with the
General Counsel as provided in subpart A of this part.
(c) Formal settlement procedure. If the Charging Party and the
Respondent enter into a formal settlement agreement that is accepted by
the Regional Director, the Regional Director shall withdraw the
complaint upon approval of the formal settlement agreement by the
Authority. If the Charging Party fails or refuses to become a party to
a formal settlement agreement offered by the Respondent, and the
Regional Director concludes that the offered settlement will effectuate
the policies of the Federal Service Labor-Management Relations Statute,
the agreement shall be between the Respondent and the Regional
Director. The formal settlement agreement together with the Charging
Party's objections, if any, shall be submitted to the Authority for
approval. The Authority may approve a formal settlement agreement upon
a sufficient showing that it will effectuate the policies of the
Federal Service Labor-Management Relations Statute.
(d) Settlement judge program. The Administrative Law Judge, on his
or her own motion, or upon the request of any party, may assign a judge
or other appropriate official, who shall be other than the hearing
judge unless otherwise mutually agreed to by the parties, to conduct
negotiations for informal settlements.
(1) The settlement official shall convene and preside over
settlement conferences by telephone or in person.
(2) The settlement official may require that the representative for
each party be present at settlement conferences and that the parties or
agents with full settlement authority be present or available by
telephone.
(3) All discussions between the parties and the settlement official
shall be confidential. The settlement official shall not discuss any
aspect of the case with the hearing judge, and no evidence regarding
statements, conduct, offers of settlement, and concessions of the
parties made in proceedings before the settlement official shall be
admissible in any proceeding before the Administrative Law Judge or
Authority, except by stipulation of the parties.
Sec. 2423.26 Stipulations of fact submissions.
(a) General. In any unfair labor practice case under this
Subchapter, upon agreement of all parties that no material issue of
fact exists, the parties may jointly submit a motion to the
Administrative Law Judge or Authority requesting consideration of the
matter based upon stipulations of fact.
(b) Stipulations to the Administrative Law Judge. Where the
stipulation adequately addresses the appropriate material facts, the
Administrative Law Judge may grant the motion and decide the case
through stipulation.
(c) Stipulations to the Authority. Where the stipulation adequately
addresses the appropriate material facts and a decision by the
Administrative Law Judge would not assist in the resolution of the
case, the Authority may grant the motion and decide the case through
stipulation.
Sec. 2423.27 Summary judgment motions.
(a) Any party may move, no later than 15 days prior to the
scheduled hearing, for a summary judgment in its favor upon any of the
issues pleaded. The motion shall demonstrate that there is no genuine
issue of material fact and that the moving party is entitled to a
[[Page 28386]]
judgment as a matter of law. Such motions shall be supported by
documents, affidavits, applicable precedent, or other appropriate
materials.
(b) Responses must be filed within 10 days after the date of
service of the motion. Responses may not rest upon mere allegations or
denials but must show, by documents, affidavits, applicable precedent,
or other appropriate materials, that there is a genuine issue to be
determined at the hearing.
(c) If all issues are decided by summary judgment, no hearing will
be held and the Administrative Law Judge shall prepare a decision in
accordance with Sec. 2423.34. If summary judgment is denied, or if
partial summary judgment is granted, the Administrative Law Judge shall
issue an opinion and order, subject to interlocutory appeal as provided
in Sec. 2429.11 of this subchapter, and the hearing shall proceed as
necessary.
Secs. 2423.28-2423.29 [Reserved]
Subpart C--Hearing Procedures
Sec. 2423.30 General rules.
(a) Open hearing. The hearing shall be open to the public unless
otherwise ordered by the Administrative Law Judge.
(b) Administrative Procedure Act. The hearing shall, to the extent
practicable, be conducted in accordance with the Administrative
Procedure Act, 5 U.S.C. 554-557.
(c) Rights of parties. A party shall have the right to appear at
any hearing in person, by counsel, or by other representative; to
examine and cross-examine witnesses; to introduce into the record
documentary or other relevant evidence; and to submit rebuttal
evidence, except that the participation of any party shall be limited
to the extent prescribed by the Administrative Law Judge.
(d) Objections. Objections are oral or written complaints
concerning the conduct of a hearing. Any objection not raised to the
Administrative Law Judge shall be deemed waived.
(e) Oral argument. Any party shall be entitled, upon request, to a
reasonable period prior to the close of the hearing for oral argument,
which shall be included in the official transcript of the hearing.
(f) Official transcript. An official reporter shall make the only
official transcript of such proceedings. Copies of the transcript may
be examined in the appropriate Regional Office during normal working
hours. Parties desiring a copy of the transcript shall make
arrangements for a copy with the official hearing reporter.
Sec. 2423.31 Powers and duties of the Administrative Law Judge at the
hearing.
(a) Conduct of hearing. The Administrative Law Judge shall conduct
the hearing in a fair, impartial, and judicial manner, taking action as
needed to avoid unnecessary delay and maintain order during the
proceedings. The Administrative Law Judge may take any action necessary
to schedule, conduct, continue, control, and regulate the hearing,
including ruling on motions and taking official notice of material
facts when appropriate. No provision of these regulations shall be
construed to limit the powers of the Administrative Law Judge provided
by the Administrative Procedure Act, 5 U.S.C. 556, 557.
(b) Evidence. The Administrative Law Judge shall receive evidence
and inquire fully into the relevant and material facts concerning the
matters that are the subject of the hearing. The Administrative Law
Judge may exclude any evidence which is immaterial, irrelevant, unduly
repetitious, or customarily privileged. Rules of evidence shall not be
strictly followed.
(c) Bench decisions. The Administrative Law Judge may, upon mutual
agreement of and motion by the parties, issue a decision orally at the
close of the hearing when the nature of the case and the public
interest warrant. If the motion is granted, the parties waive their
right to file posthearing briefs and exceptions to the Authority. If
the decision is announced orally, a copy thereof, excerpted from the
transcript or recording, shall be furnished to the parties in
accordance with Sec. 2429.12 of this subchapter. Irrespective of the
date such copy is served, the issuance date of the decision shall be
the date the certified record, as corrected, and any Order, is served.
(d) Settlements after the opening of the hearing. As set forth in
Sec. 2423.25(a), settlements may be either informal or formal.
(1) Informal settlement procedure: Judge's approval of withdrawal.
If the Charging Party and the Respondent enter into an informal
settlement agreement that is accepted by the Regional Director, the
Regional Director may request the Administrative Law Judge for
permission to withdraw the complaint and, having been granted such
permission, shall withdraw the complaint and approve the informal
settlement between the Charging Party and Respondent. If the Charging
Party fails or refuses to become a party to an informal settlement
agreement offered by the Respondent, and the Regional Director
concludes that the offered settlement will effectuate the policies of
the Federal Service Labor-Management Relations Statute, the Regional
Director shall enter into the agreement with the Respondent and shall,
if granted permission by the Administrative Law Judge, withdraw the
complaint. The Charging Party then may obtain a review of the Regional
Director's decision as provided in subpart A of this part.
(2) Formal settlement procedure: Judge's approval of settlement. If
the Charging Party and the Respondent enter into a formal settlement
agreement that is accepted by the Regional Director, the Regional
Director may request the Administrative Law Judge to approve such
formal settlement agreement, and upon such approval, to transmit the
agreement to the Authority for approval. If the Charging Party fails or
refuses to become a party to a formal settlement agreement offered by
the Respondent, and the Regional Director concludes that the offered
settlement will effectuate the policies of the Federal Service Labor-
Management Relations Statute, the agreement shall be between the
Respondent and the Regional Director. After the Charging Party is given
an opportunity to state on the record or in writing the reasons for
opposing the formal settlement, the Regional Director may request the
Administrative Law Judge to approve such formal settlement agreement,
and upon such approval, to transmit the agreement to the Authority for
approval.
Sec. 2423.32 Burden of proof before the Administrative Law Judge.
The General Counsel shall present the evidence in support of the
complaint and have the burden of proving the allegations of the
complaint by a preponderance of the evidence. The Respondent shall have
the burden of establishing any specific defenses that it raises to the
charges in the complaint.
Sec. 2423.33 Posthearing briefs.
Posthearing briefs may be filed with the Administrative Law Judge
within a time period set by the Judge, not to exceed 30 days from the
close of the hearing, unless otherwise directed by the judge, and shall
satisfy the filing and service requirements of part 2429 of this
subchapter. Reply briefs shall not be filed absent permission of the
Judge. Motions to extend the filing deadline or for permission to file
a reply brief shall be filed in accordance with Sec. 2423.21.
[[Page 28387]]
Sec. 2423.34 Decision and record.
(a) Except when bench decisions are issued pursuant to
Sec. 2423.31(c), the Administrative Law Judge shall prepare a written
decision expeditiously in every case. All written decisions shall be
served in accordance with Sec. 2429.12 of this subchapter. The decision
shall set forth:
(1) A statement of the issues;
(2) Relevant findings of fact;
(3) Conclusions of law and reasons therefor;
(4) Credibility determinations as necessary; and
(5) A recommended disposition or order.
(b) The Judge shall transmit the decision and record to the
Authority. The record shall include the charge, complaint, service
sheet, answer, motions, rulings, orders, stipulations, objections,
depositions, interrogatories, exhibits, documentary evidence, official
transcript of the hearing, briefs, and any other filings or submissions
made by the parties.
Secs. 2423.35-2423.39 [Reserved]
Subpart D--Post-transmission and Exceptions to Authority Procedures
Sec. 2423.40 Exceptions; oppositions and cross-exceptions; waiver.
(a) Exceptions. Exceptions may be filed with the Authority within
25 days after the date of service of the Judge's decision. Exceptions
and supporting briefs shall satisfy the filing and service requirements
of part 2429 of this subchapter.
(1) Exceptions shall state: the specific findings, conclusions,
determinations, rulings, or recommendations being challenged; the
grounds relied upon; and the relief sought.
(2) Exceptions shall include a supporting brief. The brief shall
set forth in this order: all relevant facts; the issues to be
addressed; and a separate argument for each issue. Statements of fact
shall include specific citations to the record, and arguments shall be
supported by specific citations to legal authority. Attachments to
briefs shall be separately paginated and indexed as necessary. Briefs
containing 20 or more pages shall include a table of contents and a
table of legal authorities cited.
(b) Oppositions and cross-exceptions. Unless otherwise directed or
approved by the Authority, oppositions to exceptions and/or cross-
exceptions may be filed with the Authority within 20 days after the
date of service of the exceptions. Oppositions shall state the specific
exceptions being opposed. Oppositions and cross-exceptions shall be
subject to the same requirements as exceptions set out in paragraph (a)
of this section.
(c) Waiver. Any exception not specifically urged shall be deemed to
have been waived.
Sec. 2423.41 Action by the Authority; compliance with Authority
decisions and orders.
(a) In the absence of the filing of exceptions within the time
limits established in Sec. 2423.40, the findings, conclusions, and
recommendations in the decision of the Administrative Law Judge shall,
without precedential significance, become the findings, conclusions,
decision and order of the Authority, and all objections and exceptions
to the rulings and decision of the Administrative Law Judge shall be
deemed waived for all purposes. Failure to comply with any filing
requirement established in Sec. 2423.40 may result in the information
furnished being disregarded.
(b) Whenever exceptions are filed in accordance with Sec. 2423.40,
the Authority shall issue a decision affirming or reversing, in whole
or in part, the decision of the Administrative Law Judge or disposing
of the matter as is otherwise deemed appropriate.
(c) Upon finding a violation, the Authority shall, in accordance
with 5 U.S.C. 7118(a)(7), issue an order directing the violator, as
appropriate, to cease and desist from any unfair labor practice, or to
take any other action to effectuate the purposes of the Federal Service
Labor-Management Relations Statute.
(d) Upon finding no violation, the Authority shall dismiss the
complaint.
(e) After the Authority issues an order, the Respondent shall,
within the time specified in the order, provide to the appropriate
Regional Director a report regarding what compliance actions have been
taken. Upon determining that the Respondent has not complied with the
Authority's order, the Regional Director shall refer the case to the
Authority for enforcement or take other appropriate action.
Sec. 2423.42 Backpay proceedings.
After the entry of an Authority order directing payment of backpay,
or the entry of a court decree enforcing such order, if it appears to
the Regional Director that a controversy exists between the Authority
and a Respondent regarding backpay that cannot be resolved without a
formal proceeding, the Regional Director may issue and serve on all
parties a notice of hearing before an Administrative Law Judge to
determine the backpay amount. The notice of hearing shall set forth the
specific backpay issues to be resolved. The Respondent shall, within 20
days after the service of a notice of hearing, file an answer in
accordance with Sec. 2423.20. After the issuance of a notice of
hearing, the procedures provided in subparts B, C, and D of this part
shall be followed as applicable.
Secs. 2423.43-2423.49 [Reserved]
PART 2429--MISCELLANEOUS AND GENERAL REQUIREMENTS
2. The authority citation for Part 2429 continues to read as
follows:
Authority: 5 U.S.C. 7134.
3. Section 2429.1 is removed and reserved, and reads as follows:
Sec. 2429.1 [Removed and reserved]
4. Section 2429.7 is amended by revising the heading, removing the
word ``subpena'' and substituting ``subpoena'' throughout the section
and by revising paragraphs (c) through (f) to read as follows:
Sec. 2429.7 Subpoenas.
* * * * *
(c) A request for a subpoena by any person, as defined in 5 U.S.C.
7103(a)(1), shall be in writing and filed with the Regional Director,
in proceedings arising under part 2422 of this Subchapter, with the
Office of Administrative Law Judges in proceedings arising under
subparts B and C of part 2423 of this subchapter, or with the
Authority, in proceedings arising under parts 2424 and 2425 of this
subchapter, not less than 15 days prior to the opening of a hearing, or
with the appropriate presiding official(s) during the hearing.
(d) All requests shall name and identify the witnesses or documents
sought and state the reasons therefor. The Authority, General Counsel,
Office of Administrative Law Judges, Regional Director, Hearing
Officer, or any other employee of the Authority designated by the
Authority, as appropriate, shall grant timely requests upon the
determination that the testimony or documents appear to be material and
relevant to the matters under investigation and the request describes
with sufficient particularity the documents sought. Requests for
subpoenas made less than 15 days prior to the opening of the hearing
shall be granted on sufficient explanation of why the request was not
timely filed. Service of an approved subpoena is the responsibility of
the party on whose behalf the subpoena was issued. The
[[Page 28388]]
subpoena shall show on its face the name and address of the party on
whose behalf the subpoena was issued.
(e)(1) Any person served with a subpoena who does not intend to
comply, shall, within 5 days after the date of service of the subpoena
upon such person, petition in writing to revoke the subpoena. A copy of
any petition to revoke a subpoena shall be served on the party on whose
behalf the subpoena was issued. Such petition to revoke, if made prior
to the hearing, and a written statement of service, shall be filed with
the Regional Director in proceedings arising under part 2422 of this
subchapter, with the Administrative Law Judge in proceedings arising
under part 2423 of this subchapter, and with the Authority, in
proceedings arising under parts 2424 and 2425 of this subchapter for
ruling. A petition to revoke a subpoena filed during the hearing, and a
written statement of service, shall be filed with the appropriate
presiding official(s).
(2) The Authority, General Counsel, Administrative Law Judge,
Regional Director, Hearing Officer, or any other employee of the
Authority designated by the Authority, as appropriate, shall revoke the
subpoena if, on further review, the person or evidence, the production
of which is required, is not material and relevant to the matters under
investigation or in question in the proceedings, or the subpoena does
not describe with sufficient particularity the evidence the production
of which is required, or if for any other reason sufficient in law the
subpoena is invalid. The Authority, General Counsel, Administrative Law
Judge, Regional Director, Hearing Officer, or any other employee of the
Authority designated by the Authority, as appropriate, shall state the
procedural or other ground for the ruling on the petition to revoke.
The petition to revoke, any answer thereto, and any ruling thereon
shall not become part of the official record except upon the request of
the party aggrieved by the ruling.
(f) Upon the failure of any person to comply with a subpoena issued
and upon the request of the party on whose behalf the subpoena was
issued, the Solicitor of the Authority shall institute proceedings on
behalf of such party in the appropriate district court for the
enforcement thereof, unless to do so would be inconsistent with law and
the Federal Service Labor-Management Relations Statute.
5. Section 2429.11 is revised to read as follows:
Sec. 2429.11 Interlocutory Appeals.
(a) Except as set forth in paragraphs (b), (c), and (d), of this
section, the Authority and the General Counsel ordinarily will not
consider interlocutory appeals.
(b) In an unfair labor practice proceeding under Part 2423 of this
Subchapter, motions for an interlocutory appeal shall be filed in
writing with the Administrative Law Judge within 5 days after the date
of the contested ruling. The motion shall state why interlocutory
review is appropriate, and why the Authority should modify or reverse
the contested ruling.
(c) The Judge shall grant the motion and certify the contested
ruling to the Authority if:
(1) The ruling involves an important question of law or policy
about which there is substantial ground for difference of opinion; and
(2) Immediate review will materially advance completion of the
proceeding, or the denial of immediate review will cause undue harm to
a party or the public.
(d) If the motion is granted, the Judge or Authority may stay the
hearing during the pendency of the appeal. If the motion is denied,
exceptions to the contested ruling may be filed in accordance with
Sec. 2423.40 of this Subchapter after the Judge issues a decision and
recommended order in the case.
6. Section 2429.12 is amended by revising paragraphs (a) and (c) to
read as follows:
Sec. 2429.12 Service of process and papers by the Authority.
(a) Methods of service. Notices of hearings, decisions and orders
of Regional Directors, decisions and recommended orders of
Administrative Law Judges, decisions of the Authority, complaints,
written rulings on motions, and all other papers required by this
Subchapter to be issued by the Authority, the General Counsel, Regional
Directors, Hearing Officers, and Administrative Law Judges, shall be
served personally, by first-class mail, or by certified mail. Provided,
however: Where facsimile equipment is available, rulings on motions;
information pertaining to prehearing disclosure, conferences, orders,
or hearing dates, times, and locations; information pertaining to
Sec. 2429.7; and other similar matters may be served by facsimile
transmission.
* * * * *
(c) Proof of service. Proof of service shall be verified by
certificate of the individual serving the papers describing the manner
of such service. When service is by mail, the date of service shall be
the day when the matter served is deposited in the United States mail.
When service is by facsimile, the date of service shall be the date the
facsimile transmission is transmitted and, when necessary, verified by
a dated facsimile record of transmission.
7. Section 2429.13 is revised to read as follows:
Sec. 2429.13 Official time for witnesses.
If the participation of any employee in any phase of any proceeding
before the Authority, including the investigation of unfair labor
practice charges and representation petitions and the participation in
hearings and representation elections, is deemed necessary by the
Authority, the General Counsel, any Administrative Law Judge, Regional
Director, Hearing Officer, or other agent of the Authority designated
by the Authority, the employee shall be granted official time for such
participation, including necessary travel time, as occurs during the
employee's regular work hours and when the employee would otherwise be
in a work or paid leave status.
8. Section 2429.14 is revised to read as follows:
Sec. 2429.14 Witness fees.
(a) Witnesses, whether appearing voluntarily or pursuant to a
subpoena, shall be paid the fee and mileage allowances which are paid
subpoenaed witnesses in the courts of the United States. However, any
witness who is employed by the Federal Government shall not be entitled
to receive witness fees.
(b) Witness fees, as appropriate, as well as transportation and per
diem expenses for a witness shall be paid by the party that calls the
witness to testify.
9. Section 2429.21 is amended by revising paragraph (b) to read as
follows:
Sec. 2429.21 Computation of time for filing papers.
* * * * *
(b) Except when filing an unfair labor practice charge pursuant to
part 2423 of this subchapter, a representation petition pursuant to
part 2422 of this subchapter, and a request for an extension of time
pursuant to Sec. 2429.23(a) of this part, when this Subchapter requires
the filing of any paper with the Authority, the General Counsel, a
Regional Director, or an Administrative Law Judge, the date of filing
shall be determined by the date of mailing indicated by the postmark
date or the date a facsimile is transmitted. If no postmark date is
evident on the mailing, it shall be presumed to have
[[Page 28389]]
been mailed 5 days prior to receipt. If the date of facsimile
transmission is unclear, the date of transmission shall be the date the
facsimile transmission is received. If the filing is by personal or
commercial delivery, it shall be considered filed on the date it is
received by the Authority or the officer or agent designated to receive
such materials.
* * * * *
10. Section 2429.22 is revised to read as follows:
Sec. 2429.22 Additional time after service by mail or facsimile.
Except as to the filing of an application for review of a Regional
Director's Decision and Order under Sec. 2422.31 of this subchapter,
whenever a party has the right or is required to do some act pursuant
to this Subchapter within a prescribed period after service of a notice
or other paper upon such party, and the notice or paper is served on
such party by mail or by facsimile transmission, 5 days shall be added
to the prescribed period: Provided, however, that 5 days shall not be
added in any instance where an extension of time has been granted.
11. Section 2429.24 is amended by revising paragraph (e) to read as
follows:
Sec. 2429.24 Place and method of filing; acknowledgment.
* * * * *
(e) All documents filed pursuant to this section shall be filed in
person, by commercial delivery, by first-class mail, or by certified
mail. Provided, however, that where facsimile equipment is available,
motions; information pertaining to prehearing disclosure, conferences,
orders, or hearing dates, times, and locations; information pertaining
to Sec. 2429.7; and other similar matters may be filed by facsimile
transmission, provided that the document filed does not exceed 5 pages
in total length.
* * * * *
12. Section 2429.25 is revised to read as follows:
Sec. 2429.25 Number of copies and paper size.
Unless otherwise provided by the Authority or the General Counsel,
or their designated representatives, as appropriate, or under this
Subchapter, and with the exception of any prescribed forms, any
document or paper filed with the Authority, General Counsel,
Administrative Law Judge, Regional Director, or Hearing Officer, as
appropriate, under this Subchapter, together with any enclosure filed
therewith, shall be submitted on 8\1/2\ x 11 inch size paper in an
original and four (4) legible copies. Where facsimile filing is
permitted pursuant to Sec. 2924.24(e), one (1) legible copy, capable of
reproduction, shall be sufficient. A clean copy capable of being used
as an original for purposes such as further reproduction may be
substituted for the original.
13. Section 2429.27 is amended by revising paragraphs (b) and (d)
to read as follows:
Sec. 2429.27 Service; statement of service.
* * * * *
(b) Service of any document or paper under this Subchapter, by any
party, including documents and papers served by one party on another,
shall be accomplished by certified mail, first-class mail, or in
person. Where facsimile equipment is available, service by facsimile of
documents described in Sec. 2429.24(e) is permissible.
* * * * *
(d) The date of service or date served shall be the day when the
matter served is deposited in the U.S. mail, delivered in person, or,
in the case of facsimile transmissions, the date of transmission.
Dated: May 20, 1997.
Solly Thomas,
Executive Director, Federal Labor Relations Authority.
[FR Doc. 97-13661 Filed 5-22-97; 8:45 am]
BILLING CODE 6727-01-P
Complete official Federal Register PDF
FR Doc. 97-13649 Proposed Approval and Promulgation of Air Quality Implementation Plans; State of Utah; Salt Lake and Davis Counties Ozone Redesignation to Attainment, Designation of Areas for Air Quality Planning Purposes, Proposed Approval of Related Elements, Proposed Approval of Partial NOINFX/INF RACT Exemption, and Proposed Approval of Weber County I/ M Program
[Federal Register Volume 62, Number 100 (Friday, May 23, 1997)]
[Proposed Rules]
[Pages 28396-28407]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-13649]
=======================================================================
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 52 and 81
[UT15-1-6775, UT12-2-6728, UT16-1-6776; FRL-5829-6]
Proposed Approval and Promulgation of Air Quality Implementation
Plans; State of Utah; Salt Lake and Davis Counties Ozone Redesignation
to Attainment, Designation of Areas for Air Quality Planning Purposes,
Proposed Approval of Related Elements, Proposed Approval of Partial
NOX RACT Exemption, and Proposed Approval of Weber County I/
M Program
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: On February 19, 1997, the Governor of Utah submitted revisions
to the Utah State Implementation Plan (SIP) that included a maintenance
plan. He also submitted a request to redesignate the Salt Lake and
Davis Counties (SLDC) moderate nonattainment area to attainment for the
current 0.12 parts per million (ppm) ozone National Ambient Air Quality
Standard (NAAQS). Included with this submittal were improved motor
vehicle inspection and maintenance provisions for Salt Lake and Davis
Counties. This February 19, 1997, submittal provided revised and
updated emission inventory figures, revised contingency measure
triggering mechanisms, updated air quality monitoring data, and other
minor revisions to the maintenance plan. In this action, EPA is
proposing to approve the SLDC redesignation request, maintenance plan,
and other related SIP elements including the 1990 base year emissions
inventory, Reasonably Available Control Technology (RACT) for Volatile
Organic Compounds (VOC), NOX RACT for Kennecott's Utah Power
Plant and for the Pacificorp Gadsby Power Plant, and the Basic
Inspection and Maintenance (I/M) and Improved I/M provisions for Salt
Lake and Davis Counties. EPA is also proposing to approve a partial
Nitrogen Oxides (NOX) RACT exemption request and to give
limited approval to the State's generic VOC RACT and generic
NOX RACT rules. Finally, EPA is proposing to approve the I/M
provisions for Weber County, which are unrelated to the redesignation
request for Salt Lake and Davis Counties.
DATES: To be considered, comments must be received by June 23, 1997.
ADDRESSES: Written comments on this action should be addressed to:
Richard R. Long, Director, Air Program (8P2-A), United States
Environmental Protection Agency, Region 8, 999 18th Street, Suite 500,
Denver, Colorado 80202-2466.
Copies of the documents relevant to this action are available for
public inspection between 8:00 a.m. and 4:00 p.m., Monday through
Friday at the following office: United States Environmental Protection
Agency, Region 8, Air Program, 999 18th Street, Suite 500, Denver,
Colorado 80202-2466.
FOR FURTHER INFORMATION CONTACT: Tim Russ, Air Program (8P2-A), United
States Environmental Protection Agency, Region 8, 999 18th Street,
Suite 500, Denver, Colorado 80202-2466
Telephone number: (303) 312-6479
SUPPLEMENTARY INFORMATION:
Background
On November 15, 1990, the Clean Air Act Amendments of 1990 were
enacted (Pub. L. 101-549, 104 Stat. 2399, codified at 42 U.S.C. 7401-
7671q). Under section 107(d)(1)(C) of the CAA, EPA designated the SLDC
area as nonattainment for ozone because the area had been designated as
nonattainment before November 15, 1990. The SLDC area was classified as
a moderate nonattainment area (see section 181 of the CAA for further
information regarding classifications and attainment dates for ozone
nonattainment areas).
Under the Clean Air Act (CAA), designations can be changed if
sufficient data are available to warrant such changes and if certain
other requirements are met. See CAA section 107(d)(3)(D). Section
107(d)(3)(E) of the CAA provides that the Administrator may not
promulgate a redesignation of
[[Page 28397]]
a nonattainment area to attainment unless:
(i) the Administrator determines that the area has attained the
national ambient air quality standard;
(ii) the Administrator has fully approved the applicable
implementation plan for the area under CAA section 110(k);
(iii) the Administrator determines that the improvement in air
quality is due to permanent and enforceable reductions in emissions
resulting from implementation of the applicable implementation plan and
applicable Federal air pollutant control regulations and other
permanent and enforceable reductions;
(iv) the Administrator has fully approved a maintenance plan for
the area as meeting the requirements of CAA section 175A; and,
(v) the State containing such area has met all requirements
applicable to the area under section 110 and part D of the CAA.
Thus, before EPA can approve the redesignation request, EPA must
find, among other things, that all applicable SIP elements have been
fully approved. Approval of the applicable SIP elements may occur prior
to final approval of the redesignation request or simultaneously with
final approval of the redesignation request. EPA is proposing to
approve several SIP elements, that are necessary to the redesignation,
at the same time it approves the redesignation.
EPA has reviewed the State's redesignation request, maintenance
plan, and related SIP elements and believes that approval of the
request is warranted, consistent with the requirements of CAA section
107(d)(3)(E). Descriptions of how the section 107(d)(3)(E) requirements
are being addressed are provided below in the supplementary information
section of this action.
Section 1. Brief Administrative History of the SLDC Ozone Redesignation
Request, Maintenance Plan, and Related Submittals
On November 12, 1993, the Governor of Utah submitted a
redesignation request and maintenance plan for the SLDC area along with
revisions to the SIP for offset ratios for VOCs and NOx,
RACT for VOCs and NOx, New Source Review (NSR),
Emission Statements, and Basic I/M. Following several intervening
steps, including litigation by the State, EPA issued a letter dated
July 29, 1994, that deemed the redesignation request, maintenance plan,
and ozone SIP elements complete as of November 12, 1993.
The State submitted a number of updates and revisions to the
maintenance plan and ozone SIP elements after November 12, 1993, in an
effort to address several substantive concerns identified by EPA. The
latest revisions to the maintenance plan were submitted on February 19,
1997, along with improved motor vehicle inspection and maintenance
provisions for Salt Lake and Davis Counties. The maintenance plan
references the various SIP elements that are pertinent to the
redesignation. On May 2, 1997, the State submitted a request for a
partial NOx RACT exemption. With this partial NOx
RACT exemption request, the State has now addressed all of EPA's
concerns.
Section 2. Redesignation Criterion: The Area Must Have Attained the
Ozone NAAQS
Section 107(d)(3)(E)(i) of the CAA states that for an area to be
redesignated to attainment, the Administrator must determine that the
area has attained the applicable NAAQS. As described in 40 CFR
Sec. 50.9, ``The standard is attained when the expected number of days
per calendar year with maximum hourly average concentrations above 0.12
part per million (235u/m3) is equal to or less than 1, as
determined by appendix H.'' Attainment of the ozone standard is not a
momentary phenomenon based on short-term data. Rather, for an area to
be considered attainment, each of the ozone ambient air quality
monitors in the area are allowed to record three or fewer exceedances
of the ozone standard over a continuous three-year period. 40 CFR
Sec. 50.9 and 40 CFR Part 50, Appendix H. If a single monitor in the
ozone monitoring network records more than three expected exceedances
of the standard over a three-year period as based on the expected
exceedance calculation method in Appendix H, or as actual measured
values, then the area is in violation of the ozone NAAQS. In addition,
EPA's interpretation of the CAA and EPA national policy has been that
an area seeking redesignation to attainment must not only show
attainment of the ozone NAAQS for a continuous three-year period, but
at least through the date that EPA promulgates the redesignation to
attainment in the Federal Register.
Utah's ozone redesignation request is based on an analysis of
quality assured ambient air quality monitoring data that are relevant
to the redesignation request. Most recent ambient air quality
monitoring data for consecutive calendar years 1992 through 1996 show
an expected exceedance rate of less than 1.0 per year, per monitor, of
the ozone NAAQS in the SLDC nonattainment area. These data were
collected and analyzed as required by EPA (see 40 CFR Sec. 50.9 and 40
CFR Part 50, Appendix H) and have been archived by the State in EPA's
Aerometric Information and Retrieval System (AIRS) national database.
Further information on ozone monitoring is presented in section
IX.D.2.c of the State's maintenance plan and in the State's TSD. Since
1992, exceedances of the 0.12 ppm ozone standard were measured at three
separate monitors in 1995, and one exceedance was measured in 1996. EPA
notes, however, that the SLDC area has not violated the ozone standard
and continues to demonstrate attainment.
Because the SLDC nonattainment area has complete quality-assured
data showing no violations of the ozone NAAQS over the most recent
consecutive three-calendar-year period, the SLDC area has met the first
component for redesignation; demonstration of attainment of the ozone
NAAQS. EPA notes that the State of Utah has also committed in the
maintenance plan to the necessary continued operation of the ozone
monitoring network in compliance with 40 CFR part 58.
Section 3. Redesignation Criterion: The Area Must Have Met All
Applicable Requirements Under Section 110 and Part D of the CAA
Section 107(d)(3)(E)(v) requires that, to be redesignated to
attainment, an area must meet all applicable requirements under section
110 and part D of the CAA. EPA interprets section 107(d)(3)(E)(v) to
mean that for a redesignation to be approved, the State must meet all
requirements that applied to the subject area prior to or at the time
of the submission of a complete redesignation request. Requirements of
the CAA due after the submission of a complete redesignation request
need not be considered in evaluating the request.
A. CAA Section 110 Requirements
On August 15, 1984, EPA approved revisions to Utah's SIP as meeting
the requirements of section 110(a)(2) of the CAA (45 FR 32575).
Although section 110 of the CAA was amended in 1990, most of the
changes were not substantial. Thus, EPA has determined that the SIP
revisions approved in 1984 continue to satisfy the requirements of
section 110(a)(2). For further detail, please see 45 FR 32575. In
addition, EPA has analyzed the SIP elements that it is proposing to
approve as part of this action and has determined they comply with the
relevant requirements of section 110(a)(2) of the CAA.
[[Page 28398]]
B. Part D Requirements
Before the SLDC moderate ozone nonattainment area may be
redesignated to attainment, the State must have fulfilled the
applicable requirements of part D. Under part D, an area's
classification indicates the requirements to which it will be subject.
Subpart 1 of part D sets forth the basic nonattainment requirements
applicable to all nonattainment areas, whether classified or
nonclassifiable. Subpart 2 of part D establishes additional
requirements for ozone nonattainment areas classified under table 1 of
section 181(a).
The relevant Subpart 1 requirements are contained in sections
172(c) and 176. However, under section 172(b), the section 172(c)
requirements are applicable as determined by the Administrator, but no
later than three years after an area has been designated as
nonattainment under the amended CAA. EPA has not determined that the
section 172(c) requirements were due on or before November 12, 1993,
the date the SLDC redesignation request was deemed complete. And, the
three-year period under section 172(b) would have ended November 15,
1993 for the SLDC nonattainment area. Thus, the State was not required
to meet the section 172(c) requirements for redesignation purposes.
Nonetheless, it is worth noting that the provisions of sections
172(c)(1)(RACT), 172(c)(3) (emissions inventory), and 172(c)(5) (new
source review permitting program) are subsumed or superseded by
provisions in sections 182 (a) and (b) of the CAA. Also, EPA has
interpreted the requirements of sections 172(c)(2) (reasonable further
progress), 172(c)(6) (other measures), and 172(c)(9) (contingency
measures) as being irrelevant to a redesignation request because they
only have meaning for an area that is not attaining the standard. See
EPA's September 4, 1992, John Calcagni memorandum entitled,
``Procedures for Processing Requests to Redesignate Areas to
Attainment'; General Preamble, 57 FR at 13564, April 16, 1992. Finally,
the State has not sought to exercise the options that would trigger
sections 172(c)(4) (identification of certain emissions increases) and
172(c)(8) (equivalent techniques). Thus, these provisions are also not
relevant to this redesignation request.
Requirements under section 176, relating to conformity, were not
due until November 25, 1994 (transportation conformity) and November
30, 1994 (general conformity). See 40 CFR sections 51.396 and 51.851.
Because these requirements were not yet due when a complete
redesignation request was submitted (November 12, 1993), they are not
necessary SIP elements for the area to be redesignated.
The SLDC nonattainment area was classified as moderate for ozone.
Therefore, to be redesignated to attainment, the area must meet the
applicable requirements of subpart 2 of part D which include sections
182(a), 182(b), and 182(f). These requirements are discussed below.
(1.) Section 182(a)(1)--Emissions inventory. Section 182(a)(1) of
the CAA requires a comprehensive, accurate, current inventory of all
actual emissions from all sources in the SLDC nonattainment area, as
described in section 172(c)(3). This was due by November 15, 1992. EPA
has interpreted ``current'' to mean calendar year 1990 (See 57 FR
13502, April 16, 1992). On November 12, 1993, the State submitted a
1990 base year inventory. This initial submittal of the 1990 base year
inventory was intended to fulfill two purposes: to meet the section
182(a)(1) emissions inventory requirement and to serve as the
attainment year emissions inventory for the SLDC ozone redesignation
maintenance plan. The State subsequently decided to use 1994 as the
attainment year. The maintenance plan that the Governor submitted on
February 19, 1997, incorporates a revised 1990 base year inventory as
background material in order to fulfill the requirements of section
182(a)(1) and includes a separate 1994 attainment year inventory. The
revised 1990 base year inventory meets the requirements of section
182(a)(1) and EPA is proposing to approve it.
Summaries of the 1990 VOC, NOX, and CO daily seasonal
emissions are provided in the tables below. Salt Lake and Davis
Counties Summary of Ozone Seasonal Emissions:
Summary of 1990 VOC Emissions
[Tons per day]
----------------------------------------------------------------------------------------------------------------
Point sources Area sources On-road mobile Non-road mobile Biogenic Total
----------------------------------------------------------------------------------------------------------------
18.22............ 46.56 32.00 30.39 38.94 166.12
----------------------------------------------------------------------------------------------------------------
Summary of 1990 NOX Emissions
[Tons per day]
------------------------------------------------------------------------
On-road Non-road
Point sources Area sources mobile mobile Total
------------------------------------------------------------------------
26.01........ 5.41 26.98 44.69 103.10
------------------------------------------------------------------------
Summary of 1990 CO Emissions
[Tons per day]
------------------------------------------------------------------------
On-road Non-road
Point sources Area sources mobile mobile Total
------------------------------------------------------------------------
12.91........ 45.60 271.64 265.53 595.68
------------------------------------------------------------------------
All supporting calculations and documentation for this 1990 ozone
base year inventory are contained in the State's Technical Support
Document (TSD) which supports this action.
(2.) Section 182(a)(2)(A) and 182(b)(2)--Reasonably Available
Control Technology (RACT) for VOCs. Section 182(a)(2)(A) of the CAA
requires that ozone nonattainment areas correct their deficient RACT
rules for VOCs
[[Page 28399]]
(known as the ``RACT fix-up'' requirement). Areas designated
nonattainment before the 1990 amendments to the CAA, which retained
that designation after the 1990 amendments and were classified as
marginal or above as of November 15, 1990, were required to meet the
RACT fix-up requirement. The SLDC ozone nonattainment area falls within
this category. Under section 182(a)(2)(A), those areas were required,
by May 15, 1991, to correct RACT regulations to comply with pre-
amendment guidance.1 To address this requirement, the
Governor submitted VOC RACT rule revisions to the SIP dated May 4,
1990, and July 25, 1991. EPA approved these VOC RACT fix-up revisions
on June 26, 1992 (57 FR 28621).
---------------------------------------------------------------------------
\1\ Among other things, the pre-amendment guidance consists of
the VOC RACT portions of the Post-87 policy (52 FR 45044, November
24, 1987); the ``Blue Book'' (``Issues Relating to VOC Regulation
Cutpoints, Deficiencies, and Deviations; Clarification to Appendix D
of the November 24, 1987 Federal Register Notice'' of which notice
of availability was published in the Federal Register on May 25,
1998); and the existing Control Technology Guidelines (CTG).
---------------------------------------------------------------------------
Section 182(b)(2) of the CAA contains the VOC RACT ``catch-up''
requirements. For ozone nonattainment areas designated moderate and
above, section 182(b)(2) requires SIP revisions to address three source
categories.
Section 182(b)(2)(A) requires RACT for each category of VOC sources
in the nonattainment area covered by a CTG document issued between the
enactment of the 1990 CAA amendments and the date of attainment.
Section 182(b)(2)(B) requires RACT for all VOC sources in the
nonattainment area covered by a CTG that was issued before the date of
enactment of the 1990 CAA amendments. Section 182(b)(2)(C) requires
RACT for all other major stationary sources of VOCs that are located in
the nonattainment area. SIP revisions described in section 182(b)(2)(A)
are due by the date specified in the CTG document. Revisions described
in section 182(b)(2)(B) and (C) were due November 15, 1992.
For the section 182(b)(2)(A) requirement, EPA issued a CTG document
which appeared as Appendix E in the ``Supplement to the General
Preamble for the Implementation of Title I of the Clean Air Act
Amendments of 1990'' (57 FR 18070, April 28, 1992). This CTG document
listed the eleven CTGs that EPA anticipated publishing in accordance
with section 183(a) and established timetables for the submittal of
RACT rules for sources that were not ultimately covered by a CTG issued
by November 15, 1993. Appendix E stated that for any of the eleven
source categories for which EPA did not issue CTGs by November 15,
1993, the States were required to develop RACT rules and submit them to
EPA by November 15, 1994. It should be noted that section 183(b) of the
CAA also required EPA to issue CTGs for two additional source
categories by November 15, 1993.
Due to budgetary constraints, EPA only issued one CTG, which
covered two source categories, prior to November 15, 1993. This CTG was
entitled ``Control of Volatile Organic Compound Emissions from Reactor
Processes and Distillation Operations Processed in the Synthetic
Organic Chemical Manufacturing Industry'' (SOCMI) (reference EPA-450/4-
91-031, August, 1993). In section IX.D.2.b(3)(a) of the SLDC
maintenance plan, the State indicates there are no SOCMI sources in the
SLDC nonattainment area. Therefore, no SIP revision was needed to
address SOCMI sources.
For the remaining nine source categories, the State was either
required to make a negative declaration or submit a RACT rule for major
sources by November 15, 1994, that required implementation of RACT by
May 15, 1995. In the SLDC maintenance plan, the State provides negative
declarations for seven of the nine source categories. The State also
makes a negative declaration for one of the two section 183(b) source
categories. For the two remaining section 183(a) source categories and
the one remaining section 183(b) source category, the State submitted
VOC RACT provisions for all major sources in the nonattainment area.
These sources are the Amoco, Chevron, Crysen, Flying J, and Phillips
refineries, Olympia Sales, and Hill Air Force Base. EPA has evaluated
the VOC limits and requirements for these sources and has determined
that they satisfy the requirements for VOC RACT. Based on the negative
declarations and the adoption of VOC RACT for identified sources, EPA
has determined that the State has met the requirements of section
182(b)(2)(A) of the CAA.
In addition, in section IX.D.2.b(3)(a) of the SLDC maintenance plan
the State makes the following commitment to adopt CTGs issued in the
future by EPA: ``As each CTG is issued, the State will review the
sources in the nonattainment area, and either issue a negative
declaration for that particular source category, meaning there are no
sources for which the CTG is applicable or revise its rules in a manner
consistent with a SIP revision to incorporate RACT (in the context of
Section 182(b)(1)(A) of the Act)) for the following categories: (1)
those source categories of VOC for which EPA issues a CTG document
during the time between the submittal of the redesignation request, and
the time when the area is officially redesignated to attainment in the
Federal Register; and (2) at any time thereafter as CTGs are published
by the EPA.''
For the section 182(b)(2)(B) requirement, EPA has determined that
the Governor's submittals of May 4, 1990, and July 25, 1991, that were
approved by EPA on June 26, 1992 (57 FR 28621), addressed RACT for all
VOC sources in the SLDC nonattainment area covered by a CTG that was
issued before the date of enactment of the 1990 CAA amendments.
Regarding the section 182(b)(2)(C) requirement for VOC RACT for
major non-CTG sources, the SLDC maintenance plan addresses the same
seven sources that it addresses for the 182(b)(2)(A) requirements. As
noted above, EPA is satisfied that the limits and requirements for
these sources represent VOC RACT. Although Utah submitted a ``generic''
RACT rule (contained in R307-14-1., UACR) for any other unidentified
major sources of VOCs in the nonattainment area, EPA is satisfied that
the State has identified all major sources of VOCs in the area. In
reaching this conclusion, EPA is relying on the negative declarations
by the State as well as EPA's review of sources in the national
Aerometic Information and Retrieval System (AIRS) and of the 1994
attainment year emission inventory for the SLDC maintenance plan. Thus,
Utah's generic VOC RACT rule is not needed to fulfill the requirements
of section 182(b)(2)(C) of the CAA.
Also, R307-14-1. contains provisions that prevent EPA from fully
approving it as meeting EPA's requirements for a generic RACT rule. In
particular, R307-14-1. defines RACT in several places by reference to
40 CFR 51.100(o). This federal definition is limited by its own terms
to circumstances that do not apply to a RACT determination under
section 182(b) of the Act. In fact, this definition is at odds with
EPA's longstanding definition of RACT as the lowest emission limitation
that a particular source is capable of meeting by the application of
control technology that is reasonably available considering
technological and economic feasibility (44 FR 53762, September 17,
1979). Although R307-14-1. does require any unidentified sources to
meet RACT requirements and thus strengthens the SIP, it does not meet
the CAA's requirements for VOC RACT. In addition, R307-14-1.F. could be
construed to allow the executive secretary of Utah's Department of
[[Page 28400]]
Environmental Quality to approve alternative test methods without EPA
approval. This type of director's discretion provision is not
consistent with EPA's requirements. Accordingly, EPA is only proposing
limited approval of R307-14-1. for its strengthening effect on the SIP,
but not as meeting the CAA's requirements for VOC RACT.
EPA also notes that in Section IX, Part D.2, pages 10--12 of the
maintenance plan the State includes references to 40 CFR 51.100(o) and
lists factors considered in determining RACT for sources that suggest
that VOC RACT may vary depending on whether or not the area is
attaining the standard. It is EPA's position that VOC RACT is not
dependent on whether or not the area is attaining the standard. Thus,
although the language in the maintenance plan did not result in
inappropriate RACT determinations, EPA wants to make clear that use of
the RACT definition in 40 CFR 51.100(o) and factors that suggest that
RACT is dependent on whether or not an area is attaining the standard
is inappropriate for VOC RACT determinations under section 182(b)(2) of
the CAA. EPA would expect the State to use the proper RACT definition
in making any future RACT determinations.
(3.) Section 182(a)(2)(C) New Source Review (NSR). The CAA requires
all classified ozone nonattainment areas to meet several requirements
regarding NSR including provisions to ensure that increased emissions
of VOC compounds will not result from any new or modified stationary
major sources and a general offset rule. The State of Utah has a fully-
approved NSR program (60 FR 22277, May 5, 1995) that meets the
requirements of section 182(a)(2)(C). This NSR program also meets the
requirements of section 172(c)(5).
(4.) Section 182(a)(3)(B)--Emissions Statements. Section
182(a)(3)(B) of the CAA required a revision to the SIP, by November 15,
1992, to require sources of NOX and VOCs to provide the
State with a statement detailing actual emissions each calendar year.
The Governor of Utah submitted a revision to the SIP on November 12,
1993, for the purpose of implementing an emission statement program for
stationary sources within the Salt Lake/Davis County nonattainment
area. EPA determined that this submittal adequately addressed the
requirements of section 182(a)(3)(B) and fully approved this SIP
revision on May 6, 1996 (61 FR 20142).
(5.) Section 182(b)(1)--15% Reasonable further progress plan, and
attainment demonstration. The SIP elements required by CAA section
182(b)(1) of the CAA--a 15% VOC reduction plan and an attainment
demonstration--were not due until November 15, 1993, after the
redesignation request was deemed complete. Therefore, these SIP
elements are not necessary for the area to be redesignated to
attainment. In addition, EPA has interpreted section 182(b)(1) to not
require these SIP elements for areas that are attaining the ozone
standard. See May 10, 1995, memorandum from John S. Seitz, entitled
``Reasonable Further Progress, Attainment Demonstration, and Related
Requirements for Ozone Nonattainment Areas Meeting the Ozone National
Ambient Air Quality Standard.'' The Sierra Club Legal Defense Fund
challenged the application of this interpretation to the SLDC
nonattainment area, and the Tenth Circuit Court of Appeals upheld EPA's
interpretation.
(6.) Section 182(b)(3)--Stage II. For ozone nonattainment areas
classified as moderate and above, section 182(b)(3) required States to
submit SIP revisions by November 15, 1992, to require the installation
and operation of gasoline refueling vapor recovery systems (``Stage
II''). However, pursuant to CAA section 202(a)(6), this requirement was
superseded for moderate ozone nonattainment areas when EPA promulgated
onboard vapor recovery regulations (59 FR 16262, April 6, 1994). Thus,
the SLDC nonattainment area is not required to meet the requirements of
section 182(b)(3).
(7.) Section 182(b)(4)--Motor Vehicle Inspection and Maintenance
(I/M). Section 182(b)(4) of the CAA requires a SIP revision for all
moderate ozone nonattainment areas that provides for the implementation
of a basic vehicle inspection and maintenance program. In addition,
Congress directed EPA in section 182(a)(2)(B) to publish updated
guidance for state I/M programs, taking into consideration findings of
the Administrator's audits and investigations of these programs. The
states were to incorporate this guidance into the SIP for all areas
required by the CAA to have an I/M program.
On November 5, 1992, the EPA published a final regulation
establishing the I/M requirements, pursuant to sections 182 and 187 of
the CAA (57 FR 52950). The I/M regulation was codified at 40 CFR Part
51, subpart S, and required states to submit an I/M SIP revision which
includes all necessary legal authority and the items specified in 40
CFR 51.372 (a)(1) through (a)(8) by November 15, 1993.
The State of Utah submitted a SIP revision in November 1993 which
upgraded the then existing County-run I/M programs to meet the CAA
requirements for basic I/M programs in the Salt Lake (Davis and Salt
Lake Counties), Ogden (Weber County), and Provo-Orem (Utah County)
metropolitan statistical areas (MSA) beginning on July 1, 1994. On
February 19, 1997, the State submitted a SIP revision that provides for
improved basic I/M programs in Salt Lake and Davis Counties to be
implemented beginning January 1, 1998. The improved basic I/M programs
in Salt Lake and Davis Counties provide additional VOC and
NOX reductions necessary for the ozone maintenance
demonstration.
The Weber County basic I/M program is required by the CAA as a SIP
element unrelated to the SLDC ozone nonattainment area requirements.
Therefore, EPA is proposing approval of the Weber County program in
this notice as an action separate from the SLDC ozone redesignation
request and maintenance plan. The Utah County I/M program is not being
proposed for approval in this notice, but instead will be addressed in
a future notice.
Utah is currently implementing annual test-and-repair I/M programs
(Davis, Salt Lake, and Weber Counties) which meet the requirements of
EPA's performance standard and other requirements contained in the
Federal I/M rule. Testing is being performed by independent inspection
stations with State/County oversight. Other aspects of Utah's I/M
programs include: testing of all 1968 and newer vehicles, a test fee to
ensure the State/Counties have adequate resources to implement the
program, enforcement by registration denial, a repair effectiveness
program, a commitment to testing convenience, quality assurance, data
collection, a specified waiver rate, reporting, test equipment and test
procedure specifications, a commitment to ongoing public information
and consumer protection programs, inspector training and certification,
and penalties for inspector incompetence. EPA has reviewed the
submittals against the CAA statutory requirements and for consistency
with Federal I/M regulations as codified in 40 CFR Sec. 51.350 through
Sec. 51.373. EPA summarizes the Federal requirements and how the State/
Counties have satisfied the requirements below.
(7.)a. 40 CFR 51.350--Applicability. The SIP needs to describe the
applicable areas in detail and must also include the legal authority or
rules necessary to establish program boundaries. Utah's County-run I/M
programs, as authorized by Sections 41-6-163.6 thru 41-6-163.7 of the
Utah Code Unannotated, are to be implemented county-wide in Davis, Salt
[[Page 28401]]
Lake, and Weber Counties, as described in the Utah SIP, Section X,
Basic Automotive Inspection and Maintenance (I/M).
(7.)b. 40 CFR 51.352--Basic I/M performance standard. The I/M
programs provided for in the SIP are required to meet a performance
standard for basic I/M for the pollutants that caused the affected area
to come under I/M requirements. The performance standard sets an
emission reduction target that must be met by a program in order for
the SIP to be approvable. The SIP must also provide that the program
will meet the performance standard in actual operation, with provisions
for appropriate adjustments if the standard is not met.
The State/Counties have submitted a modeling demonstration using
the EPA's emissions factor model showing that the basic performance
standard is met in all of the affected Counties. Additional modeling
was submitted for the improved basic programs which will be implemented
in Salt Lake and Davis Counties beginning January 1, 1998. The State/
Counties used EPA's MOBILE5a emission factor model to conservatively
estimate future reductions for these improved basic programs. EPA
believes the conservative methodology employed by the State/Counties
provides the VOC and NOx reductions necessary to demonstrate
maintenance of the ozone NAAQs without further demonstration/program
evaluation.
The State/Counties may choose to perform future program evaluations
to quantify emissions reductions beyond those claimed using the
conservative approach employed for this submittal.
(7.)c. 40 CFR 51.353--Network type. The SIP includes a description
of the network to be employed, and the required legal authority. Salt
Lake and Weber Counties have chosen to implement decentralized, I/M
programs, which are comprised of independently operated facilities.
Davis County provides for a decentralized network of independently
operated facilities through January 1, 1998, at which time the County
will operate centralized testing facilities performing the IM240 test
procedure in addition to independently operated facilities performing
two-speed idle testing.
The Utah I/M programs, in each of the affected Counties, allow
fleet self-testing programs with oversight by County Health Department
employees. Legal authority contained in Sections 41-6-163.6 thru 41-6-
163.7, Utah Code Unannotated, authorizes the Counties to implement
these programs.
(7.)d. 40 CFR 51.354--Adequate tools and resources. The SIP needs
to include a description of the resources that will be used for program
operation, which include: (1) A detailed budget plan which describes
the source of funds for personnel, program administration, program
enforcement, purchase of necessary equipment, and any other
requirements discussed throughout, for the period prior to the next
biennial self-evaluation required in Federal I/M rule; and (2) a
description of personnel resources, the number of personnel dedicated
to overt and covert auditing, data analysis, program administration,
enforcement, and other necessary functions and the training attendant
to each function.
The SIP narrative and County Ordinances contained in the SIP
submittal detail that adequate budget resources, staffing support, and
equipment and resources are dedicated to the program. Thus, the
submittal meets the requirements of the Federal Rule.
(7.)e. 40 CFR 51.355--Test frequency and convenience. The SIP needs
to include the test schedule in detail, including the test year
selection scheme if testing is other than annual.
The County I/M Ordinances require annual inspections for all
subject motor vehicles in the basic I/M programs. For new vehicles the
first test is required for re-registration two years after initial
registration.
The improved basic program in Salt Lake County requires annual
testing of all 1968 and newer vehicles, with an option to perform
biennial testing if legislative authority is changed to allow biennial
testing. If the County seeks to switch to biennial testing, EPA would
require the State/Salt Lake County to demonstrate that the necessary
emission reductions can still be provided to demonstrate maintenance of
the ozone standard.
The Davis County improved basic I/M program ordinance requires all
3, 6, and 9 year-old vehicles to be inspected at the County-run
centralized facilities. All other vehicles are required to obtain
annual inspections in independent testing facilities.
All motor vehicles registered as government-owned vehicles or
gasoline-powered heavy-duty trucks are required to be certified
annually in both the basic and improved basic programs.
(7.)f. 40 CFR 51.356--Vehicle coverage. The SIP includes a detailed
description of the number and types of vehicles covered by the County-
run programs, and a plan for how those vehicles are to be identified.
The County-run programs' vehicle coverage includes all 1968 and
newer model year light-duty cars and trucks and heavy-duty gasoline-
powered trucks, registered or required to be registered within the MSA,
and fleets primarily operated within the I/M program areas, including
government-owned and operated vehicles. Vehicles are identified through
the State of Utah's Tax Commission Division of Motor Vehicles (DMV)
database.
Vehicles exempted from the program include: motorcycles, farm
trucks and diesel vehicles. Diesel vehicles are required to be
inspected in County-run diesel I/M lanes. The exempted vehicles are
accounted for in the modeling submitted by the State/Counties and
documented in the SIP narrative as required.
(7.)g. 40 CFR 51.357--Test procedures and standards. The SIP
includes a description of each test procedure used, and a rule,
ordinance, or law describing and establishing the test procedures.
Davis and Weber Counties' I/M programs incorporate by reference
EPA's preconditioned two-speed idle test as specified in EPA-AA-TSA-I/
M-90-3 March 1990, Technical Report, ``Recommended I/M Short Test
Procedures for the 1990's: Six Alternatives.'' Additionally, Davis
County incorporates by reference the IM240 test procedure specified in
EPA-AA-RSPD-IM-96-1 to be administered on 3, 6, and 9 year-old vehicles
beginning January 1, 1998.
Salt Lake County's I/M program currently uses EPA's Preconditioned
two-speed idle test as specified in EPA-AA-TSA-I/M-90-3 March 1990,
Technical Report. Beginning January 1, 1998, the County will implement
the 2-mode Acceleration Simulation Mode (ASM2) test in accordance with
E0PA-AA-RSPD-IM-96-2.
The calibration specifications and emissions test procedures meet
the minimum standard established in Appendix A of 40 CFR Part 51,
Subpart S. Test procedures are established in each of the County Rules,
which are incorporated into the SIP.
(7.)h. 40 CFR 51.358--Test equipment. The SIP needs to include
written technical specifications for all test equipment used in the
program and shall address each of the requirements in 40 CFR 51.358.
The specifications need to describe the emission analysis process, the
necessary test equipment, the required features, and written acceptance
testing criteria and procedures.
The Utah I/M SIP provides that the program equipment will meet the
California BAR 90/BAR97 accuracy standards at a minimum for the two-
speed idle and ASM2 testing equipment. Also, Utah's SIP for Davis
[[Page 28402]]
County provides that the program equipment will meet the IM240
equipment specifications contained in EPA-AA-RSPD-IM-96-1.
The Utah SIP narrative addresses the requirements in 40 CFR 51.358
and includes descriptions of performance features and functional
characteristics of the computerized test systems. The necessary test
equipment, required features, and acceptance testing criteria are also
contained in the SIP.
(7.)i. 40 CFR 51.359--Quality control. The SIP needs to include a
description of quality control and recordkeeping procedures. The SIP
also needs to include the procedures manual, rule, and ordinance or law
describing and establishing the quality control procedures and
requirements.
The Utah I/M SIP narrative contains descriptions and requirements
establishing the quality control procedures in accordance with the
Federal I/M rule. These requirements will help ensure that equipment
calibrations are properly performed and recorded, and that compliance
certificates are properly maintained and secured. Additional quality
control procedures are documented in individual County Ordinances.
(7.)j. 40 CFR 51.360--Waivers and Compliance Via Diagnostic
Inspection
The SIP needs to include a maximum waiver rate expressed as a
percentage of initially failed vehicles. This waiver rate needs to be
used for estimating emission reduction benefits in the modeling
analysis. Also, the State needs to take corrective action if the waiver
rate exceeds that estimated in the SIP or revise the SIP and the
emission reductions claimed accordingly. In addition, the SIP needs to
describe the waiver criteria and procedures, including cost limits,
quality assurance methods and measures, and administration. Lastly, the
SIP shall include the necessary legal authority, ordinance, or rules to
issue waivers, set and adjust cost limits as required, and carry out
any other functions necessary to administer the waiver system,
including enforcement of the waiver provisions.
The Salt Lake and Davis County I/M programs commit to a waiver rate
of 1 percent or less. The Weber County I/M program commits to a waiver
rate of 5 percent or less. Waiver procedures are detailed in individual
County ordinances, which are incorporated into the SIP. Legal authority
for waivers is delegated to the Counties in section 41-6-163, Utah Code
Unannotated.
(7.)k. 40 CFR 51.361--Motorist compliance enforcement. The SIP
needs to provide information concerning the enforcement process,
including: (1) A description of the existing compliance mechanism if it
is to be used in the future and the demonstration that it is as
effective or more effective than registration-denial enforcement; (2)
an identification of the agencies responsible for performing each of
the applicable activities in this section; (3) a description of and
accounting for all classes of exempt vehicles; and (4) a description of
the plan for testing fleet vehicles, rental car fleets, leased
vehicles, and any other special classes of subject vehicles, e.g. those
operated in (but not necessarily registered in) the program area. Also,
the SIP needs to include a determination of the current compliance rate
based on a study of the system that includes an estimate of compliance
losses due to loopholes, counterfeiting, and unregistered vehicles.
Estimates of the effect of closing such loopholes and otherwise
improving the enforcement mechanism need to be supported with detailed
analyses. In addition, the SIP needs to include the legal authority to
implement and enforce the program. Lastly, the SIP needs to include a
commitment to an enforcement level to be used for modeling purposes and
to be maintained, at a minimum, in practice.
The motorist compliance enforcement program provisions are
contained in the SIP narrative and in the individual County Ordinances.
The motorist compliance enforcement program will be implemented, in
part, by the Utah Tax Commission Division of Motor Vehicles (DMV),
which will take the lead in ensuring that owners of all subject
vehicles are denied registration unless they provide valid proof of
having received a certificate indicating they passed an emissions test
or were granted a compliance waiver. State and local police agencies
have the authority to cite motorists with expired registration tags.
Authority for these provisions is contained in Section 41-6-163 of the
Utah Code Unannotated.
Current compliance rates are estimated at greater than 95 percent
in each of the County areas. The SIP commits to a level of motorist
enforcement necessary to ensure a compliance rate of no less than 96
percent among subject vehicles.
(7.)l. 40 CFR 51.362--Motorist Compliance Enforcement Program
oversight. The SIP narrative includes a description of the enforcement
program oversight and information management activities. The State/
Counties will periodically review the compliance rates of area I/M
programs to ensure the 96 percent commitment is being met. The DMV,
Utah Division of Air Quality, Utah highway patrol, and County I/M
program staff meet twice a month to ensure on-going high quality
oversight of a joint motorist compliance program.
(7.)m. 40 CFR 51.363--Quality assurance. The SIP needs to include a
description of the quality assurance program, and written procedures
manuals covering both overt and covert performance audits, record
audits, and equipment audits. This requirement does not include
materials or discussion of details of enforcement strategies that would
ultimately hamper the enforcement process.
The Utah I/M SIP narrative and appendices to the County I/M
ordinances include descriptions of the quality assurance programs and
procedures. The quality assurance programs include operation progress
reports, and overt and covert audits of all emission inspectors and
emission inspections. Overt and covert audits are conducted by the
County I/M staff. In addition, remote inspector audits are performed by
the County I/M personnel. Procedures and techniques for overt and
covert performance, recordkeeping, and equipment audits are given to
auditors and updated as needed.
(7.)n. 40 CFR 51.364--Enforcement Against Contractors, Stations and
Inspectors
The SIP needs to include the penalty schedule and the legal
authority for establishing and imposing penalties, civil fines, license
suspension, and revocations. Also, the SIP needs to describe the
administrative and judicial procedures and responsibilities relevant to
the enforcement process, including which agencies, courts, and
jurisdictions are involved; who will prosecute and adjudicate cases;
and other aspects of the enforcement of the program requirements, the
resources to be allocated to this function, and the source of those
funds.
The individual Counties are responsible for enforcement actions
against incompetent or dishonest stations and inspectors. Each County
I/M ordinance or regulation includes a penalty schedule. For repeat or
serious offenses, auditors are authorized to immediately suspend the
station or inspector by locking out the analyzer(s). A station permit
may be suspended or revoked even if the owner/operator had no direct
knowledge of the violation. In the case of incompetence, re-training is
required before a permit is restored.
(7.)o. 40 CFR 51.366--Data analysis and reporting. The Utah I/M SIP
narrative provides that the State/County programs will report summary
data based upon program activities taking place in the previous year.
The report
[[Page 28403]]
will provide statistics for the testing program, the quality control
program, the quality assurance program, and the enforcement program. At
a minimum, Utah commits to address all of the data elements listed in
section 51.366 of the Federal I/M rule.
(7.)p. 40 CFR 51.367--Inspector training and licensing or
certification. The SIP needs to include a description of the training
program, the written and hands-on tests, and the licensing or
certification process.
The Utah I/M SIP provides for the implementation of training,
certification, and refresher programs for emission inspectors. Training
includes all elements required by 40 CFR 51.367(a). All inspectors are
required to pass a written test in order to become certified to inspect
vehicles in the Utah I/M program.
(7.)q. 40 CFR 51.369--Improving repair effectiveness. The SIP needs
to include a description of the technical assistance program to be
implemented, and a description of the repair technician training
resources available in the community.
The Utah I/M SIP commits the program technical and supervisory
staff to continue to work with both motor vehicle owners and the
automotive service industry regarding their vehicles failing to meet
the exhaust emission levels. These direct contacts are normally either
by telephone or person-to-person. Customers with vehicles that present
unusual testing problems or situations are referred to a County-run
Technical Center for further testing and diagnostics.
The Utah Air Quality Board (UAQB) formally adopted the above-
described I/M programs for Salt Lake County and Davis County on
February 5, 1997. The Weber County I/M program was re-numbered and also
re-adopted by the UAQB on February 5, 1997. Based on the above analysis
of each of the three County programs, EPA is proposing approval of the
I/M programs for Salt Lake, Davis, and Weber Counties as a revision to
Utah's SIP.
(8.) Section 182(f)--Oxides of Nitrogen (NOX)
requirements. Section 182(f) of the CAA requires States with ozone
nonattainment areas to impose the same control requirements for major
stationary sources of NOX as apply to major stationary
sources of VOCs. These NOX requirements, NOX RACT
and NOX NSR, were to be submitted to EPA in a SIP revision
by November 15, 1992. Section 182(f) also specifies circumstances under
which these NOX requirements would be limited or would not
apply.
(8.)a. NSR for NOX. For the NOX NSR
requirement, the State of Utah has a fully-approved NSR program (60 FR
22277, May 5, 1995) that meets the requirements of section 182(a)(2)(C)
and applies to sources of NOX. This program also meets the
requirements of section 172(c)(5).
(8.)b. Section 182(f)--.NOX RACT For the purposes of
addressing the NOX RACT requirement of section 182(f),
sources within the SLDC ozone nonattainment area with NOX
emissions of greater than or equal to 100 tons per year are required to
employ RACT. The NOX RACT requirements are defined by
reference to section 182(b)(2) of the CAA. As EPA has not issued any
CTGs for NOX sources, the provisions of sections
182(b)(2)(A) and (B) are not applicable. Section 182(b)(2)(C), as
applied to NOX, required the submittal of RACT rules for
major stationary sources of NOX by November 15, 1992.
The State has established NOX RACT for the Gadsby Power
Plant, owned by PacifiCorp, and the Utah Power Plant, owned by
Kennecott Utah Copper (KUC). As part of the Utah PM10 SIP
revision that EPA approved on July 8, 1994 (59 FR 35036), the Gadsby
Power Plant was required to switch from coal to natural gas on a year-
round basis and to meet NOX limits based on the use of low-
NOX burners. These NOX limits are contained in
section IX, Part H of the Utah SIP.
For the Utah Power Plant, the State established NOX
limits for boilers numbered 1 through 4. For boiler number 4, a
tangentially fired coal-burning boiler, the State established a
NOX limit of 384 ppm and 377 lbs. per hour (equivalent to
0.45 lbs. of NOX per million Btu.) This is consistent with
EPA's presumptive NOX RACT limit for tangentially fired
coal-burning boilers (see 57 FR 55620, November 25, 1992).
Boilers numbered 1 through 3 are older, coal-burning wet bottom
units. Through testing, Kennecott determined that these boilers could
be retrofitted with low-NOX burners. Based on the use of
low-NOX burners, the State set NOX limits for
boilers numbered 1 through 3 at 216 lbs. of NOX per hour and
426.5 ppmdv (parts per million dry by volume) measured at 3% oxygen.
These emission limits are specified in an approval order for the Utah
Power Plant and in the maintenance plan.
EPA has evaluated the NOX limits for the Gadsby and Utah
Power Plants and has determined they satisfy the NOX RACT
requirement for these sources.
(8.)c. Partial NOX RACT Exemption request. Although the
State required some NOX reductions at other major stationary
sources of NOX as part of the PM10 SIP for Salt
Lake County and southern Davis County, the State did not perform a
NOX RACT evaluation or require NOX RACT for these
other sources. However, the State has submitted a request pursuant to
CAA section 182(f)(2) for a NOX RACT exemption for major
stationary sources of NOX in the SLDC nonattainment area
other than the Gadsby and Utah Power Plants.
Under section 182(f)(2)(A), the Administrator may limit the
application of the NOX RACT requirement to the extent
necessary to avoid excess reductions of NOX. Section
182(f)(2)(B)(i) defines excess NOX reductions as reductions
the Administrator determines would not contribute to attainment of the
ozone NAAQS in the area. EPA has indicated that in cases where a
nonattainment area is demonstrating attainment with 3 consecutive years
of air quality monitoring data, without having implemented all or a
portion of the section 182(f) NOX provisions, it is clear
that this test is met since ``additional reductions of [NOX]
would not contribute to attainment'' of the NAAQS in that area. EPA
issued guidance memorandums addressing this NOX exemption
issue; of particular importance to the Utah situation are a May 27,
1994, John S. Seitz memorandum entitled ``Section 182(f) Nitrogen
Oxides (NOX) Exemptions--Revised Process and Criteria'' and
a January 12, 1995, G. T. Helms memorandum entitled ``Scope of Nitrogen
Oxides (NOX) Exemptions.''
The State met this NOX exemption threshold in 1992 as
ambient air quality monitoring data from 1990, 1991, and 1992 showed
that the SLDC area had attained the ozone NAAQS. In addition,
monitoring data show that the SLDC area has continued to maintain the
ozone NAAQS.
The ambient air quality monitoring data for the years 1990, 1991,
and 1992, as provided with the State's May 2, 1997, letter, have been
quality assured and archived in EPA's Aerometric Information and
Retrieval System (AIRS) by the State in accordance with 40 CFR Part 58.
These data were then evaluated by EPA according to the procedures in 40
CFR Part 50, Appendix H. The results of this analysis indicate that the
SLDC area attained the current ozone NAAQS as of 1992. Additional
quality assured data were provided with the State's May 2, 1997,
letter, and are also included in the maintenance plan and the State's
TSD for the redesignation request. These data were also archived in
AIRS by the State, in accordance with 40 CFR part 58, and
[[Page 28404]]
include the years 1993, 1994, 1995, and 1996. Based on EPA's review of
all the air monitoring data from 1990 through 1996, EPA has determined
that the SLDC area attained the ozone NAAQS in 1992 and has continued
to demonstrate attainment of the ozone NAAQS through 1996. Therefore,
EPA has determined that the State's May 2, 1997, partial NOX
RACT exemption request for the SLDC area meets the applicable
requirements of section 182(f)(2) of the CAA and is consistent with EPA
guidance.
It is important to note that EPA is only proposing to approve an
exemption from the NOX RACT requirements for those major
stationary sources of NOX in the SLDC nonattainment area
other than the Gadsby Power Plant and the Utah Power Plant. EPA is not
proposing an exemption from the NOX NSR requirements,
NOX conformity requirements, or the motor vehicle I/M
requirements related to NOX. Furthermore, EPA notes that
NOX limits for some or all of the major stationary sources
of NOX other than the Gadsby and Utah Power Plants are
necessary for the SLDC nonattainment area to demonstrate maintenance of
the ozone NAAQS through 2007 (2020 for conformity purposes).
(8.)d. R307-14-1 Generic NOX RACT. The State also has a
generic NOX RACT rule, contained in R307-14-1, UACR, which
requires RACT for existing major sources of NOX for which no
specific emission limits or other control requirements have been
established in R307-14. EPA is proposing limited approval of the
generic NOX RACT provisions for their strengthening effect
on the SIP. EPA is not making a finding that these provisions meet the
requirements to be considered RACT. As noted above with respect to the
State's generic VOC RACT provisions, which are also contained in R307-
14-1 and which overlap to a significant degree, the State's reference
to 40 CFR 51.100(o) to define RACT is inappropriate. In addition, R307-
14-1.D.(2) suggests that prior applications of RACT under other Federal
or State requirements might be deemed adequate to satisfy the
NOX RACT requirements of CAA section 182(f) even if they do
not meet presumptive NOX RACT levels. EPA believes the State
may be referring to limits set for the PM10 SIP. It is EPA's
position that the State's suggested approach is not allowed under
section 182(f) of the CAA. NOX RACT for section 182(f)
purposes must be evaluated independently of NOX limits set
for purposes of a PM10 SIP or other State or Federal
requirement. Finally, EPA notes that R307-14-1.F applies to
NOX as well as VOCs and leaves discretion in the Executive
Secretary of the Utah Department of Environmental Quality to change
test methods without EPA approval. As discussed above with respect to
VOC RACT, this type of provision is not consistent with EPA's
requirements.
For these reasons, EPA cannot fully approve Utah's generic
NOX RACT rule as meeting section 182(f) and other SIP
requirements. However, EPA believes this generic NOX RACT
rule strengthens the SIP and is proposing limited approval of the rule
provisions for their strengthening effect only. The State's generic
NOX RACT rule is not necessary to the redesignation request
because the State has adopted NOX RACT for the Gadsby and
Utah Power Plants and the SLDC area qualifies for a NOX RACT
exemption for any other major stationary sources of NOX.
Section 4. Redesignation Criterion: The Area Must Have A Fully Approved
SIP Under Section 110(k) of the CAA
Section 107(d)(3)(E)(ii) of the CAA states that for an area to be
redesignated to attainment, it must be determined that the
Administrator has fully approved the applicable implementation plan for
the area under section 110(k).
Based on the approval into the SIP of provisions under the pre-1990
CAA and EPA's prior approval of SIP revisions required under the 1990
amendments to the CAA, EPA has determined that Utah will have a fully
approved ozone SIP under section 110(k) for the SLDC ozone
nonattainment area if EPA takes final action to approve the 1990 base
year emissions inventory, the State's VOC and NOX RACT
requirements (with the exceptions noted above), the State's partial
NOX RACT exemption request, the Basic I/M program, and the
Salt Lake and Davis Counties Improved I/M rules as described above. EPA
intends to take final action approving the above SIP elements at the
same time that EPA takes final action to approve the SLDC ozone
redesignation request.
Section 5. Redesignation Criterion: The Area Must Show That The
Improvement in Air Quality is Due to Permanent and Enforceable
Emissions Reductions
Section 107(d)(3)(E)(iii) of the CAA provides that for an area to
be redesignated to attainment, the Administrator must determine that
the improvement in air quality is due to permanent and enforceable
reductions in emissions resulting from implementation of the applicable
implementation plan, implementation of applicable Federal air pollutant
control regulations, and other permanent and enforceable reductions.
In addition to the reduction of emissions from the revisions to the
SIP described above (VOC RACT, NOX RACT for the Utah Power
Plant and Gadsby Power Plant, the PM10 SIP revision, VOC/
NOX NSR) and in section IX.D.2.b of the SLDC maintenance
plan, other Federal emission control measures have come into place
since the SLDC area last violated the current ozone standard. These
control measures include the reduction in summertime fuel volatility to
7.8 psi (beginning in 1992), as measured by Reid Vapor Pressure (RVP),
and fleet turnover due to the Federal Motor Vehicle Control Program
(FMVCP). Both of these control measures provided significant VOC
emission reductions.
EPA has evaluated the various State and Federal control measures,
the 1990 base year emission inventory, the 1994 attainment year
emission inventory, and the projected emissions described below, and
has concluded that the improvement in air quality in the SLDC
nonattainment area has resulted from emission reductions that are
permanent and enforceable.
Section 6. Redesignation Criterion: The Area Must Have A Fully Approved
Maintenance Plan Under Section 175A
Section 107(d)(3)(E)(iv) of the CAA provides that for an area to be
redesignated to attainment, the Administrator must have fully approved
a maintenance plan for the area meeting the requirements of section
175A of the CAA.
Section 175A of the CAA sets forth the elements of a maintenance
plan for areas seeking redesignation from nonattainment to attainment.
The maintenance plan must demonstrate continued attainment of the
applicable NAAQS for at least ten years after the Administrator
approves a redesignation to attainment. Eight years after the
promulgation of the redesignation, the State must submit a revised
maintenance plan that demonstrates continued attainment for the
subsequent ten-year period following the initial ten-year maintenance
period. To address the possibility of future NAAQS violations, the
maintenance plan must contain contingency measures, with a schedule for
adoption and implementation, that are adequate to assure prompt
correction of a violation. In addition, EPA issued further maintenance
plan interpretations in the ``General Preamble for the Implementation
of Title I of the Clean Air Act Amendments of 1990'' (57 FR 13498,
April 16, 1992), ``General Preamble for the Implementation of
[[Page 28405]]
Title I of the Clean Air Act Amendments of 1990; Supplemental'' (57 FR
18070, April 28, 1992), and the EPA guidance memorandum entitled
``Procedures for Processing Requests to Redesignate Areas to
Attainment'' from John Calcagni, Director, Air Quality Management
Division, Office of Air Quality and Planning Standards, to Regional Air
Division Directors, dated September 4, 1992. In this Federal Register
action, EPA is proposing approval of the State of Utah's maintenance
plan for the SLDC nonattainment area because EPA has determined, as
detailed below, that the State's maintenance plan submittal meets the
requirements of section 175A and is consistent with the documents
referenced above. EPA's analysis of the pertinent maintenance plan
requirements, with reference to the Governor's February 19, 1997,
submittal, is provided as follows:
A. Emissions Inventories--Attainment Year and Projections
EPA's interpretations of the CAA section 175A maintenance plan
requirements are generally provided in the General Preamble and
September 4, 1992, policy memorandum referenced above. Under EPA's
interpretations, areas seeking to redesignate to attainment for ozone
may demonstrate future maintenance of the NAAQS either by showing that
future ozone precursor emissions will be equal to or less than the
attainment year emissions or by providing a modeling demonstration. For
the SLDC area, the State selected the emissions inventory approach for
demonstrating maintenance of the ozone NAAQS.
The maintenance plan that the Governor submitted on February 19,
1997, included comprehensive inventories of the VOC, NOX,
and CO emissions from the SLDC area. These inventories include
emissions from stationary point sources, area sources, non-road mobile
sources, on-road mobile sources, and biogenics. The State selected 1994
as the year from which to develop the attainment year inventory and
included year-by-year projections out to 2007. More detailed
descriptions of the 1994 attainment year inventory and the projected
inventories are documented in the maintenance plan, sections IX.D.2.e
and IX.D.2.f, and in the State's TSD. The State's submittal contains
detailed emission inventory information that was prepared in accordance
with EPA guidance. Summary emission figures from the 1994 attainment
year and a sampling of the projected years are provided in the tables
below.
----------------------------------------------------------------------------------------------------------------
1994 1997 2000 2003 2007
----------------------------------------------------------------------------------------------------------------
Summary of VOC Emissions in Tons Per Day
----------------------------------------------------------------------------------------------------------------
Point Sources.................................. 11.81 12.79 13.42 14.13 15.04
Area Sources................................... 40.81 45.24 48.50 51.81 56.59
Non-Road Mobile Sources........................ 33.16 32.12 30.91 28.35 22.81
On-Road Mobile Sources......................... 75.40 70.66 62.96 60.46 58.47
Biogenics...................................... 38.94 38.94 38.94 38.94 38.94
----------------------------------------------------------------
Total.................................... 200.13 199.75 194.73 193.69 191.84
----------------------------------------------------------------------------------------------------------------
Summary of NOX Emissions in Tons Per Day
----------------------------------------------------------------------------------------------------------------
Point Sources.................................. 27.74 24.97 26.15 27.57 29.47
Area Sources................................... 7.32 7.95 8.38 8.85 9.57
Non-Road Mobile Sources........................ 50.17 51.04 49.34 48.44 48.06
On-Road Mobile Sources......................... 73.66 73.11 65.87 65.24 67.31
----------------------------------------------------------------
Total.................................... 158.89 157.08 149.74 150.10 154.39
----------------------------------------------------------------------------------------------------------------
Summary of CO Emissions in Tons Per Day
----------------------------------------------------------------------------------------------------------------
Point Sources.................................. 3.83 3.99 4.18 4.40 4.67
Area Sources................................... 4.88 10.19 10.45 10.72 11.15
Non-Road Mobile Sources........................ 292.86 308.05 322.65 339.76 366.63
On-Road Mobile Sources......................... 634.95 557.84 451.89 413.22 393.23
----------------------------------------------------------------
Total.................................... 936.51 880.07 789.17 768.10 775.68
----------------------------------------------------------------------------------------------------------------
B. Demonstration of Maintenance--Projected Inventories
Total ozone precursor emissions of VOCs and NOX were
projected by the State year-by-year from 1995 through 2007.2
These projected inventories were prepared in accordance with EPA
guidance (further information is provided in section IX.D.2.f of the
maintenance plan). The projected inventories show that VOC and
NOX emissions are not expected to exceed the 1994 attainment
level during this time period and, therefore, the SLDC area has
satisfactorily demonstrated maintenance.
---------------------------------------------------------------------------
\2\ EPA notes that in developing the 1990 base year inventory,
the State provided CO emission data as required by EPA for 1990 base
year emission inventories. As the initial November 12, 1993,
maintenance plan submittal used 1990 as the attainment year
inventory, these CO emissions were projected by the State along with
VOC and NOX emissions. The State continued to carry CO
emission data through each subsequent revision to the maintenance
plan up through, and including, the February 19, 1997 version. EPA
is acknowledging and archiving these CO emission projections with
this Federal Register action. However, these CO emission projections
are not necessary for the SLDC redesignation to attainment and will
not be discussed further.
---------------------------------------------------------------------------
C. Monitoring Network and Verification of Continued Attainment
Continued attainment of the ozone NAAQS in the SLDC area depends,
in part, on the State's efforts to track indicators throughout the
maintenance period. This requirement is met in two sections of the SLDC
maintenance plan. In section IX.D.2.c.(4) and section IX.D.2.j.(2) the
State commits to continue the operation of the ozone monitors in the
SLDC area and to annually review this monitoring
[[Page 28406]]
network and make changes as appropriate. Also, in section
IX.D.2.j.(1)(a) the State commits to prepare a comprehensive emission
inventory of VOC, NOX, and CO emissions every three years
beginning with 1996. These inventories will be based on the most
current Vehicle Miles Traveled (VMT) data, actual point source
emissions, and area source emissions based on the most current
population and industry growth information. The above commitments by
the State, which will be enforceable by EPA following the final
approval of the SLDC maintenance plan SIP revision, are deemed adequate
by EPA.
D. Contingency Plan
Section 175A(d) of the CAA requires that a maintenance plan include
contingency provisions. To meet this requirement, the State has
identified appropriate contingency measures along with a schedule for
the development and implementation of such measures. As stated in
Section IX.D.2.h of the maintenance plan, the contingency measures for
the SLDC area will be triggered by a violation of the ozone standard.
The contingency measures identified are: (1) increase the VOC and
NOX offset levels from 1.15 to 1 to 1.20 to 1, (2) decrease
the threshold level for requiring offsets from 100 tons per year to 50
tons per year, (3) implement Stage II vapor recovery, and (4) require
more stringent low-NOX burner controls. A more complete
description of the triggering mechanism and these contingency measures
can be found in section IX.D.2.h of the maintenance plan SIP submittal.
EPA finds that the contingency measures provided in the State's
maintenance plan meet the requirements of section 175A(d) of the CAA.
E. Subsequent Maintenance Plan Revisions
In accordance with section 175A(b) of the CAA, the State of Utah
has committed to submit a revised maintenance plan SIP revision eight
years after redesignation. This provision and other State-triggered
mechanisms (such as in response to revisions to the ozone NAAQS or to
take advantage of improved or more expeditious methods of maintaining
the ozone standard) for revising the maintenance plan are contained in
section IX.D.2.h.(3) of the SLDC maintenance plan.
F. Transportation Conformity
One key provision of the conformity regulations requires a
demonstration that emissions from the transportation plan and
Transportation Improvement Program are consistent with the emissions
budgets in the SIP (40 CFR sections 93.118 and 93.119). The emissions
budget is defined as the level of mobile source emissions relied upon
in the attainment or maintenance demonstration to maintain compliance
with the NAAQS in the nonattainment area. The rule's requirements and
EPA's policy on emissions budgets are found in the Preamble to the
transportation conformity rule (58 FR 62193-96) and in the sections of
the rule referenced above.
The maintenance plan defines emissions budgets for each year
between 1994 and 2007, and for 2015 and 2020. (See Table 8 of the
maintenance plan). The 1994-2007 emissions budgets are based on the
maintenance plan's emission inventory projections, while the 2015 and
2020 budgets are based on EKMA modeling. The maintenance plan lists
budgets for Salt Lake County and Davis County separately, and for the
entire nonattainment area (both Counties combined). The plan provides
that the metropolitan planning organization (Wasatch Front Regional
Council) may demonstrate conformity with the budgets for each County
individually or for the entire nonattainment area at its option. The
plan also identifies a safety margin (called the ``emissions credit'')
for each year, which is the difference between total emissions from all
sources in the attainment year and in each future year. The plan
provides that this safety margin may be used for conformity purposes if
authorized by the Utah Air Quality Board.
Proposed Action
In this action, EPA is proposing to approve the SLDC redesignation
request, maintenance plan, and other related SIP elements, including
the 1990 base year emissions inventory, Reasonably Available Control
Technology (RACT) for Volatile Organic Compounds (VOC), NOX
RACT for Kennecott's Utah Power Plant and for the Gadsby Power Plant,
and the Basic Inspection and Maintenance (I/M) and Improved I/M
provisions for Salt Lake and Davis Counties. EPA is also proposing to
approve a partial Nitrogen Oxides (NOX) RACT exemption
request. EPA will not proceed with approval of the redesignation
request unless EPA also proceeds with the final full approval of the
maintenance plan, all applicable SIP elements, and the partial
NOX RACT exemption.
In this action, EPA is also proposing to give limited approval to
the State's generic VOC RACT and generic NOX RACT rules, and
to fully approve the I/M provisions for Weber County. These SIP
elements are either not necessary or not relevant to the SLDC
redesignation request.
EPA is requesting comments on all aspects of this proposal. As
indicated elsewhere in this document, to be considered, comments must
be received by June 23, 1997.
Nothing in this action should be construed as permitting or
allowing or establishing a precedent for any future request for
revision to any State Implementation Plan. Each request for revision to
any State Implementation Plan shall be considered separately in light
of specific technical, economic, and environmental factors and in
relation to relevant statutory and regulatory requirements.
Administrative Requirements
A. Executive Order 12866
This action has been classified as a Table 3 action for signature
by the Regional Administrator under the procedures published in the
Federal Register on January 19, 1989 (54 FR 2214-2225), as revised by a
July 10, 1995 memorandum from Mary Nichols, Assistant Administrator for
Air and Radiation. The Office of Management and Budget (OMB) has
exempted this regulatory action from E.O. 12866 review.
B. Regulatory Flexibility Act
Under the Regulatory Flexibility Act, 5 U.S.C. 600 et. seq., EPA
must prepare a regulatory flexibility analysis assessing the impact of
any proposed or final rule on small entities. 5 U.S.C. 603 and 604.
Alternatively, EPA may certify that the rule will not have a
significant impact on a substantial number of small entities. Small
entities include small businesses, small not-for-profit enterprises,
and government entities with jurisdiction over populations of less than
50,000.
Redesignation of an area to attainment under sections 107(d)(3) (D)
and (E) of the CAA does not impose any new requirements on small
entities. Redesignation to attainment is an action that affects the
status of a geographical area and does not impose any regulatory
requirements on sources. Therefore, I certify that the approval of the
redesignation request will not affect a substantial number of small
entities.
SIP approvals under section 110 and subchapter I, part D of the
Clean Air Act do not create any new requirements but simply approve
requirements that the State is already imposing. Therefore, because the
Federal SIP approval does not impose any new requirements, I
[[Page 28407]]
certify that it does not have a significant impact on any small
entities affected. Moreover, due to the nature of the Federal-State
relationship under the CAA, preparation of a flexibility analysis would
constitute Federal inquiry into the economic reasonableness of State
action. The Clean Air Act forbids EPA to base its actions concerning
SIPs on such grounds. Union Electric Co. v. U.S. EPA, 427 U.S. 246,
255-66 (1976); 42 U.S.C. 7410(a)(2).
Approvals of NOX exemption requests under section 182(f)
of the CAA do not create any new requirements. Therefore, I certify
that approval of the State's partial NOX RACT exemption
request will not have a significant impact on any small entities
affected.
C. Unfunded Mandates
Under Section 202 of the Unfunded Mandates Reform Act of 1995
(``Unfunded Mandates Act''), signed into law on March 22, 1995, EPA
must prepare a budgetary impact statement to accompany any proposed or
final rule that includes a Federal mandate that may result in estimated
costs to State, local, or tribal governments in the aggregate, or to
the private sector, of $100 million or more. Under Section 205, EPA
must select the most cost-effective and least burdensome alternative
that achieves the objectives of the rule and is consistent with
statutory requirements. Section 203 requires EPA to establish a plan
for informing and advising any small governments that may be
significantly or uniquely impacted by the rule.
EPA has determined that the proposed action does not include a
Federal mandate that may result in estimated costs of $100 million or
more to either State, local, or tribal governments in the aggregate or
to the private sector. This Federal action will approve a redesignation
to attainment, pre-existing requirements under State or local law, and
an exemption from requirements otherwise imposed under the CAA; this
action will impose no new requirements. Accordingly, no additional
costs to State, local, or tribal governments, or to the private sector,
will result from this action.
List of Subjects
40 CFR Part 52
Environmental protection, Air pollution control, Carbon monoxide,
Hydrocarbons, Incorporation by reference, Intergovernmental relations,
Nitrogen dioxide, Ozone, Reporting and recordkeeping requirements,
Volatile organic compounds.
40 CFR Part 81
Air pollution control, National parks, Wilderness areas.
Authority: 42 U.S.C. 7401-7671q.
Dated: May 14, 1997.
Jack W. McGraw,
Acting Regional Administrator.
[FR Doc. 97-13649 Filed 5-22-97; 8:45 am]
BILLING CODE 6560-50-P
Complete official Federal Register PDF
FR Doc. 97-13631 Rail General Exemption AuthorityNonferrous Recyclables
[Federal Register Volume 62, Number 100 (Friday, May 23, 1997)]
[Proposed Rules]
[Page 28413]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-13631]
=======================================================================
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DEPARTMENT OF TRANSPORTATION
Surface Transportation Board
49 CFR Part 1039
[STB Ex Parte No. 561]
Rail General Exemption Authority--Nonferrous Recyclables
AGENCY: Surface Transportation Board, DOT.
ACTION: Proposed rule; extension of comment due date.
-----------------------------------------------------------------------
SUMMARY: By decision served May 5, 1997, the Surface Transportation
Board issued a notice of proposed rulemaking (NPR) proposing, inter
alia, a total exemption from regulation for 29 nonferrous recyclable
commodities. The NPR was not published in the Federal Register until
May 16, 1997 (62 FR 27003) although parties in an earlier proceeding
(Ex Parte No. 346 (Sub-No. 36)) were served with a copy of the May 5,
1997 NPR. The May 16 Federal Register publication provided for the
filing of a notice of intent to participate on May 26, 1997, with
comments due June 30, 1997, and reply comments due July 15, 1997. The
Association of American Railroads (AAR), in a request dated May 8,
1997, and supplemented on May 14, 1997, has requested an extension of
time to July 15, 1997, to file comments and to August 5, 1997, to file
reply comments. AAR requests the extension to allow it and its members
sufficient time to compile current information and to consult and
coordinate a response among themselves and shippers of nonferrous
recyclable commodities. AAR contacted three parties who had filed
opposition comments in the earlier proceeding and reports that two of
those parties do not object to the extension, and the third took no
position. The extension request will be granted. Moreover, because the
due date of May 26, 1997 for notice of intent is a federal holiday,
that due date will be extended to May 27, 1997.
DATES: Persons interested in participating in this proceeding as a
party of record by filing and receiving written comments must file a
notice of intent to participate by May 27, 1997. Comments must be
submitted by July 15, 1997, and reply comments are due August 5, 1997.
ADDRESSES: Send an original plus 10 copies of notices of intent to
participate and pleadings referring to STB Ex Parte No. 561 to: Surface
Transportation Board, Office of the Secretary, Case Control Unit, 1925
K Street, N.W., Washington, DC 20423-0001.
FOR FURTHER INFORMATION CONTACT: Beryl Gordon, (202) 565-1600. (TDD for
the hearing impaired: (202) 565-1695.)
Decided: May 19, 1997.
By the Board, Vernon A. Williams, Secretary.
Vernon A. Williams,
Secretary.
[FR Doc. 97-13631 Filed 5-22-97; 8:45 am]
BILLING CODE 4915-00-P
Complete official Federal Register PDF
FR Doc. 97-13614 Procedures for Suspension and Removal of Panel Trustees and Standing Trustees
[Federal Register Volume 62, Number 100 (Friday, May 23, 1997)]
[Proposed Rules]
[Pages 28391-28393]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-13614]
=======================================================================
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DEPARTMENT OF JUSTICE
28 CFR Part 58
RIN 1105-AA54
Procedures for Suspension and Removal of Panel Trustees and
Standing Trustees
AGENCY: Department of Justice.
ACTION: Proposed rule.
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SUMMARY: The United States Trustee Program (``Program'') is formalizing
procedures by which a chapter 7 panel trustee and a standing chapter 12
or chapter 13 trustee can seek review within the agency of a decision
by the United States Trustee to suspend or terminate the assignment of
cases to the trustee. The procedures are a mandatory prerequisite for
the trustee to seek judicial review. The proposed rule specifies the
manner in which the United States Trustee shall notify a trustee of the
decision to suspend or terminate the assignment of cases. It also
establishes the procedure by which a trustee may request further review
and decision by the Director.
DATES: Written comments must be submitted on or before July 22, 1997.
ADDRESSES: Please submit written comments to the Office of the General
Counsel, Executive Office for United States Trustees, 901 E Street,
N.W., Room 740, Washington, D.C. 20530.
FOR FURTHER INFORMATION CONTACT: Martha L. Davis, General Counsel, or
P. Matthew Sutko, Attorney, (202) 307-1399. This is not a toll-free
number.
SUPPLEMENTARY INFORMATION: The United States Trustee Program was first
enacted on a pilot basis by the Bankruptcy Reform Act of 1978, Pub. L.
No. 95-598, 92 Stat. 2549 (1978), which instituted massive reform in
the Federal bankruptcy system. The United States Trustee Program is a
component of the Department of Justice charged with the responsibility
of supervising the administration of bankruptcy cases and trustees. The
success of the pilot program led Congress to expand the Program
nationwide in 1986 as a permanent program in the Department of Justice.
Bankruptcy Judges, United States Trustees, and Family Farmers Act of
1986, Pub. L. No. 99-554, 100 Stat. 3088 (1986).
The Program consists of an Executive Office for United States
Trustees, which is headed by the Director, and 21 United States
Trustees. Among the administrative functions assumed by the Program is
the responsibility to appoint and supervise trustees who administer
cases under chapters 7, 12, and 13 of the Bankruptcy Code. 28 U.S.C.
Secs. 509, 510 and 586. The United States Trustee Program has enacted
standards that set minimum qualifications for appointment. 28 CFR part
58.
A trustee's performance is monitored by the United States Trustee
Program on an ongoing basis. When appropriate, the United States
Trustee will stop assigning cases to a trustee. In some instances, this
is temporary, as in the case of a suspension; in others it is
permanent. This occurs most often when a trustee engages in improper
conduct or fails to perform adequately. It also occurs when the
caseload within a district declines or when the United States Trustee
determines that cases could be more efficiently administered by other
trustees or by fewer trustees. Trustees are rarely, if ever, surprised
by such a decision. Trustees receive regular reviews and are in regular
contact with Program employees regarding problems or other issues
arising out of their administration of cases. In addition, the Program
has long had a policy of allowing trustees an opportunity to ask the
Director of the Executive Office of United States Trustees to determine
the propriety of a suspension or termination.
This rule will formalize those procedures. Under the rule, a
trustee will receive written notice from a United States Trustee when a
suspension or termination occurs; it shall set forth reasons why that
action is occurring and will refer to or be accompanied by copies of
relevant documentation. The United States Trustee's decision will be
final and unreviewable unless the trustee asks the Director to review
the suspension or termination. If the trustee seeks such a review, the
trustee will be able to provide written submissions to a reviewing
official within the organization, who will be a person who was not
involved in the United States Trustee's decision. After the reviewing
official makes a report and recommendation, the Director will determine
whether the United States Trustee's decision is supported by the record
and the action is an appropriate exercise of the United States
Trustee's discretion. The Director's decision will constitute final
agency action. If a trustee is dissatisfied with the final agency
action, the trustee may then seek judicial review under the relevant
provisions of the Administrative Procedure Act in a United States
district court. Judicial review may be sought only after the trustee
exhausts these remedies.
When published in final form, this rule will facilitate the
Program's fulfillment of its statutory duty to appoint trustees and
supervise their administration of bankruptcy cases. Although trustees
have no constitutional or statutory right to continue receiving
bankruptcy cases in the future, see Joelson v. United States, 86 F.3d
1413 (6th Cir. 1996) (holding that trustees have no statutory or
constitutionally protected interest in their positions as trustees);
Richman v. Straley, 48 F.3d 1139, 1143 (10th Cir. 1995) (trustees have
no constitutional right to continue acting as trustees); Shaltry v.
United States, 182 B.R. 836, 842 (D. Ariz.) (same), aff'd, 1995 WL
866862 (9th Cir. 1995), the proposed rule will ensure that trustees are
apprised of the bases for suspension or termination of case assignments
and will provide trustees with a mechanism to obtain further agency
review of the appropriateness of the suspension or termination.
[[Page 28392]]
Executive Order 12866
This proposed rule has been drafted and reviewed in accordance with
Executive Order 12866, section 1(b), The Principles of Regulation. The
Director has determined that this rule is not a ``significant
regulatory action'' under section 3(f) of Executive Order 12866,
Regulatory Planning and Review, and accordingly the rule has not been
reviewed by the Office of Management and Budget.
Regulatory Flexibility Act
The Director, in accordance with the Regulatory Flexibility Act (5
U.S.C. 605(b)), has reviewed this proposed rule and by approving it
certifies that this rule will not have a significant impact on a
substantial number of small entities. This rule only affects
individuals who serve as panel and standing trustees, which is fewer
than 1,500 individuals.
Paperwork Reduction Act
This proposed rule contains no new information collection or
recordkeeping requirements under the Paperwork Reduction Act (44 U.S.C.
Secs. 3501, et seq.).
Unfunded Mandates Reform Act of 1995
This proposed rule will not result in the expenditure by State,
local and tribal governments, in the aggregate, or by the private
sector, of $100,000,000 or more in any one year, and it will not
significantly or uniquely affect small governments. Therefore, no
actions were deemed necessary under the provisions of the Unfunded
Mandates Reform Act of 1995.
Small Business Regulatory Enforcement Fairness Act of 1996
This rule is not a major rule defined by Sec. 804 of the Small
Business Regulatory Enforcement Act of 1996. This rule will not result
in an annual effect on the economy of $100,000,000 or more; a major
increase in costs or prices; or significant adverse effects on
competition, employment, investment, productivity, innovation, or on
the ability of United States-based companies to compete with foreign-
based companies in domestic and export markets.
List of Subjects in 28 CFR Part 58
Bankruptcy, Trusts and trustees.
For the reasons set forth in the preamble, the Department of
Justice proposed to amend 28 CFR part 58 as follows:
PART 58--REGULATONS RELATING TO THE BANKRUPTCY REFORM ACTS OF 1978
AND 1994
1. The authority citation for Part 58 is revised to read as
follows:
Authority: 28 U.S.C. Secs. 509, 510, 586, 5 U.S.C. Sec. 301.
2. New section 58.6 is added to read as follows:
Sec. 58.6 Procedures for suspension and removal of Panel Trustees and
Standing Trustees.
(a) A United States Trustee shall notify a panel trustee or a
standing trustee in writing of any decision to suspend or terminate the
assignment of cases to the trustee including, where applicable, any
decision not to renew the trustee's term appointment. The notice shall
state the reason(s) for the decision and should refer to, or be
accompanied by copies of, pertinent materials upon which the United
States Trustee has relied and any prior communications in which the
United States Trustee has advised the trustee of the potential action.
The reasons may include, but are in no way limited to:
(1) Failure to safeguard or to account for estate funds and assets;
(2) Failure to perform duties in a timely and consistently
satisfactory manner;
(3) Failure to comply with the provisions of the Code, the
Bankruptcy Rules, and local rules of court;
(4) Failure to cooperate and to comply with instructions and
policies of the court, the bankruptcy clerk or the United States
Trustee;
(5) Substandard performance of general duties and case management
in comparison to other members of the chapter 7 panel or other standing
trustees;
(6) Failure to display proper temperament in dealing with judges,
clerks, attorneys, creditors, debtors, the United States Trustee and
the general public;
(7) Failure to adequately supervise professionals or employees;
(8) Failure to file timely, accurate reports, including interim
reports, final reports, and final accounts;
(9) Failure to meet the eligibility requirements of 11 U.S.C. 321
or the qualifications set forth in 28 CFR 58.3 and 58.4 and in 11
U.S.C. Sec. 322;
(10) Failure to attend in person or appropriately conduct the 11
U.S.C. Sec. 341(a) meeting of creditors;
(11) Action by or pending before a court or state licensing agency
which calls the trustee's competence, financial responsibility or
trustworthiness into question;
(12) Inability to accept assigned cases due to conflicts of
interest or to the trustee's unwillingness or incapacity to serve;
(13) Change in the composition of the chapter 7 panel pursuant to a
system established by the United States Trustee under 28 CFR 58.1;
(14) A determination by the United States Trustee that the
interests of effective case administration warrant a reduction in the
number of panel trustees or standing trustees. The notice shall advise
the trustee that the decision is final and unreviewable unless the
trustee files a timely, written request for administrative review with
the Director, Executive Office for United States Trustees, no later
than 20 calendar days from the date of the United States Trustee's
notice.
(b) The United States Trustee's decision shall be effective on the
date specified by the United States Trustee. If the trustee files a
request for administrative review, the trustee may seek a stay of the
decision from the United States Trustee. If the United States Trustee
declines to stay the decision, the trustee may seek a stay from the
Director.
(c) The trustee's written request for administrative review
(``request for review'') by the Director shall describe fully why the
trustee disagrees with the United States Trustee's decision, and shall
be accompanied by all material that the trustee wants the Director to
consider in reviewing the decision.
(d) Upon receiving a timely request for review, the Director shall
appoint a reviewing official. The reviewing official shall be a person
in the United States Trustees Program who was not involved in the
United States Trustee's decision nor located within the region of the
United States Trustee who has made the decision.
(e) The reviewing official shall transmit a copy of the trustee's
request for review and the accompanying materials to the appropriate
United States Trustee. The United States Trustee shall have 20 calendar
days from the date of the transmittal to respond to the matters raised
in the trustee's request for review and to provide any additional
materials that the United States Trustee wants the reviewing official
to consider, with a copy transmitted to the trustee. The trustee shall
have 10 calendar days from the date of the United States Trustee's
response to reply, with a copy to the United States Trustee. The
reviewing official has discretion to extend the United States Trustee's
or the trustee's time for response to a date certain.
[[Page 28393]]
(f) The reviewing official may seek additional information from any
party in the manner and to the extent the reviewing official deems
appropriate.
(g) The reviewing official shall review the record and issue a
written report and recommendation to the Director within 30 calendar
days of the last date fixed under paragraph (e) for submission of
materials.
(h) The Director thereafter shall determine whether the United
States Trustee's decision is supported by the record and the action is
an appropriate exercise of the United States Trustee's discretion, and
shall issue a written decision adopting, modifying or rejecting the
reviewing official's recommendation within 20 calendar days of the date
of the reviewing official's report and recommendation. The Director's
decision shall constitute final agency action.
(i) This section does not apply to any decision to increase the
size of the chapter 7 panel or to appoint additional standing trustees
in the district or region.
(j) A trustee who files a request for review shall bear his or her
own costs and expenses, including counsel fees.
Dated: May 20, 1997.
Joseph Patchan,
Director, Executive Office for United States Trustees.
[FR Doc. 97-13614 Filed 5-22-97; 8:45 am]
BILLING CODE 4410-40-M
Complete official Federal Register PDF
FR Doc. 97-13586 Proposed Amendment to Class E Airspace: Lewisburg, WV
[Federal Register Volume 62, Number 100 (Friday, May 23, 1997)]
[Proposed Rules]
[Pages 28389-28390]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-13586]
-----------------------------------------------------------------------
DEPARTMENT OF TRANSPORTATION
Federal Aviation Administration
14 CFR Part 71
[Airspace Docket No. 97-AEA-24]
Proposed Amendment to Class E Airspace: Lewisburg, WV
AGENCY: Federal Aviation Administration (FAA), DOT.
ACTION: Notice of proposed rulemaking.
-----------------------------------------------------------------------
SUMMARY: This notice proposes to amend the Class E airspace area at
Lewisburg, WV. The development of new Standard instrument Approach
Procedures (SIAP) at the Greenbrier Valley Airport based on the Global
Positioning System (GPS) and VHF Omnidirectional Radio Range (VOR) has
made this proposal necessary. Additional controlled airspace extending
upward from 700 feet above the surface (AGL) is needed to accommodate
these SIAPs and for instrument flight rules (IFR) operations at the
airport.
[[Page 28390]]
DATES: Comments must be received on or before June 5, 1997.
ADDRESSES: Send comments on the proposal in triplicate to: Manager,
Operations Branch, AEA-530, Docket No. 97-AEA-24, F.A.A. Eastern
Region, Federal Building #111, John F. Kennedy Int'l Airport, Jamaica,
NY 11430.
The official docket may be examined in the Office of the Assistant
Chief Counsel, AEA-7, F.A.A. Eastern Region, Federal Building #111,
John F. Kennedy International Airport, Jamaica, NY 11430.
An informal docket may also be examined during normal business
hours in the Operations Branch, AEA-530, F.A.A. Eastern Region, Federal
Building #111, John F. Kennedy International Airport, Jamaica, NY
11430.
FOR FURTHER INFORMATION CONTACT:
Mr. Francis T. Jordan, Jr., Airspace Specialist, Operations Branch,
AEA-530 F.A.A. Eastern Region, Federal Building #111, John F. Kennedy
International Airport, Jamaica, NY 11430; telephone: (718)553-4521.
SUPPLEMENTARY INFORMATION:
Comments Invited
Interested parties are invited to participate in this proposed
rulemaking by submitting such written data, views, or arguments as they
may desire. Comments that provide the factual basis supporting the
views and suggestions presented are particularly helpful in developing
reasoned regulatory decisions on the proposal. Comments are
specifically invited on the overall regulatory, economic,
environmental, and energy related aspects of the proposal.
Communications should identify the airspace docket number and be
submitted in triplicate to the address listed above. Commenters wishing
the FAA to acknowledge receipt of their comments on this notice must
submit with those comments a self-addressed, stamped postcard on which
the following statement is made: ``Comments to Airspace Docket No. 97-
AEA-24,'' The postcard will be date/time stamped and returned to the
commenter. All communications received on or before the closing date
for comments will be considered before taking action on the proposed
rule. The proposal contained in this notice may be changed in light of
comments received. All comments submitted will be available for
examination in the Rules Docket both before and after the closing date
for comments. A report summarizing each substantive public contact with
the FAA personnel concerned with this rulemaking will be filed in the
docket.
Availability of NPRMs
Any person may obtain a copy of this Notice of Proposed Rulemaking
(NPRM) by submitting a request to the Office of the Assistant Chief
Counsel, AEA-7, F.A.A. Eastern Region, Federal Building #111, John F.
Kennedy International Airport, Jamaica, NY 11430. Communications must
identify the notice number of this NPRM. Persons interested in being
placed on a mailing list for future NPRMs should also request a copy of
Advisory Circular No. 11-2A, which describes the application procedure.
The Proposal
The FAA is considering an amendment to Part 71 of the Federal
Aviation Regulations (14 CFR Part 71) to amend the Class E airspace
area at Lewisburg, WV. A GPS RWY 22 SIAP, and a VOR RWY 22 SIAP for the
Greenbrier Valley Airport have been developed. Additional controlled
airspace extending upward from 700 feet above the surface (AGL) is
needed to accommodate these SIAP and for IFR operations at the airport.
Class E airspace designations for airspace areas extending upward from
700 feet or more above the surface are published in Paragraph 6006 of
FAA Order 7400.9D, dated September 4, 1996, and effective September 16,
1996, which is incorporated by reference in 14 CFR 71.1. The Class E
airspace designation listed in this document would be published
subsequently in the order.
The FAA has determined that this proposed regulation only involves
an established body of technical regulations for which frequent and
routine amendments are necessary to keep them operationally current.
Therefore, this proposed regulation--(1) is not a ``significant
regulatory action'' under Executive Order 12866; (2) is not a
``significant rule'' under DOT Regulatory Policies and Procedures (44
FR 11034; February 26, 1979); and (3) does not warrant preparation of a
regulatory evaluation as the anticipated impact is so minimal. Since
this is a routine matter that would only affect air traffic procedures
and air navigation, it is certified that this proposed rule would not
have significant economic impact on a substantial number of small
entities under the criteria of the Regulatory Flexibility Act.
List of Subjects in 14 CFR Part 71
Airspace, Incorporation by reference, Navigation (air).
The Proposed Amendment
In consideration of the foregoing, the Federal Aviation
Administration proposes to amend 14 CFR Part 71 as follows:
PART 71--[AMENDED]
1. The authority citation for Part 71 continues to read as follows:
Authority: 49 U.S.C. 106(g), 40103, 40113, 40120; E.O. 10854; 24
FR 9565, 3 CFR, 1959-1963 Comp., p. 389; 14 CFR 11.69.
2. The incorporation by reference in 14 CFR 71.1 of the Federal
Aviation Administration Order 7400.9D, dated September 4, 1996, and
effective September 16, 1996, is proposed to be amended as follows:
Paragraph 6005 Class E airspace areas extending upward from 700
feet or more above the surface of the earth.
* * * * *
AEA WV E5 Lewisburg, WV [Revised]
Greenbrier Valley Airport, Lewisburg, WV
(Lat. 37 deg.51'30'' N., long 80 deg.23'58'' W.)
That airspace extending upward from 700 feet above the surface
within a 9-mile radius of Greenbrier Valley Airport and within 4.4
miles each side of the 215 deg. bearing from the Greenbrier Valley
Airport extending from the 9-mile radius to 17 miles southwest of
the airport and within 4.4 miles each side of the 020 deg. bearing
from the Greenbrier Valley Airport extending from the 9-mile radius
to 12 miles northeast of the airport.
* * * * *
Issued in Jamaica, New York, on May 7, 1997.
John S. Walker,
Manager, Air Traffic Division, Eastern Region.
[FR Doc. 97-13586 Filed 5-22-97; 8:45 am]
BILLING CODE 4910-13-M
Complete official Federal Register PDF
FR Doc. 97-13573 Commercial Space Transportation Licensing Regulations; Correction
[Federal Register Volume 62, Number 100 (Friday, May 23, 1997)]
[Proposed Rules]
[Pages 28390-28391]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-13573]
-----------------------------------------------------------------------
DEPARTMENT OF TRANSPORTATION
Federal Aviation Administration
14 CFR Parts 401, 411, 413, 415 and 417
[Docket No. 28851; Notice 97-2]
RIN 2120-AF99
Commercial Space Transportation Licensing Regulations; Correction
AGENCY: Federal Aviation Administration (FAA), DOT.
ACTION: Notice of proposed rulemaking (NPRM); correction.
-----------------------------------------------------------------------
SUMMARY: This document corrects the preamble to a proposed rule
published in the Federal Register on March 19, 1997 (62 FR 13216) which
proposes to amend licensing regulations for launching commercial launch
vehicles from Federal launch ranges. The proposed regulations are
intended to provide applicants and licensees greater
[[Page 28391]]
specificity and clarity regarding the scope of a license, and regarding
licensing requirements and criteria.
FOR FURTHER INFORMATION CONTACT:
J. Randall Repcheck, Commercial Space Transportation, AST-200, (202)
366-2258 or Laura Montgomery, Office of the Chief Counsel, AGC-200,
(202) 366-9305.
Correction
In proposed FR Doc. 97-6607, on page 13234 in the Federal Register
issue of March 19, 1997, make the following corrections:
1. On page 13234 in the third column, under the heading: E.
Paperwork Reduction Act, in the first paragraph, line 7, change the
word ``approval'' to ``review.'' and remove the words ``under OMB No.
2105-0515, Title: Commercial Space Transportation Licensing
Regulations.''.
2. On the same page, in the same column, under the same heading, in
the second paragraph, in lines 29 and 30, concurrently ``518 hours''
should read ``518 hours x 4=2,072 hours'' and ``421 hours'' should read
``421 hours x 2=842 hours for a total of 2,914 hours''.
3. On the same page, in the same column, under the same heading, in
the third paragraph, line 12, the docket number ``49815'' should be
changed to ``28851''.
Issued in Washington, DC on May 15, 1997.
Donald P. Byrne,
Assistant Chief Counsel, Regulations Division.
[FR Doc. 97-13573 Filed 5-22-97; 8:45 am]
BILLING CODE 4910-13-M
Complete official Federal Register PDF
FR Doc. 97-13567 Proposed Revision of Class E Airspace; Carlisle, AR
[Federal Register Volume 62, Number 100 (Friday, May 23, 1997)]
[Proposed Rules]
[Page 28389]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-13567]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF TRANSPORTATION
Federal Aviation Administration
14 CFR Part 71
[Docket No. 96-ASW-08]
Proposed Revision of Class E Airspace; Carlisle, AR
AGENCY: Federal Aviation Administration (FAA), DOT.
ACTION: Proposed rule; withdrawal.
-----------------------------------------------------------------------
SUMMARY: This action withdraws a Notice of Proposed Rulemaking (NPRM)
that proposed to revise the Class E airspace at Carlisle, AR. The
proposal was to revise the controlled airspace extending upward from
700 feet above the ground (AGL) needed to contain aircraft executing a
Global Positioning System (GPS) standard instrument approach procedure
(SIAP) to Runway (RWY) 09 at Carlisle Municipal Airport. The NPRM was
published with errors in the description of the airspace required to
provide adequate controlled airspace for aircraft executing this
approach. Therefore, the proposal is withdrawn.
FOR FURTHER INFORMATION CONTACT:
Donald J. Day, Airspace Branch, Federal Aviation Administration,
Southwest Region, Fort Worth, TX 76193-0530; telephone: (817) 222-5593.
SUPPLEMENTARY INFORMATION: On June 18, 1996, an NPRM was published in
the Federal Register (61 FR 30842) to revise the Class E airspace at
Carlisle, AR. The intended effect of the proposal was to provide
adequate Class E airspace to contain aircraft executing the GPS SIAP to
RWY 09 at Carlisle Municipal Airport, Carlisle, AR. After publication
of the NPRM, errors were found in the description of the proposed
airspace. Accordingly, the proposed rule is withdrawn.
List of Subjects in 14 CFR Part 71
Airspace, Navigation (air).
Withdrawal of Proposed Rule
Accordingly, pursuant to the authority delegated to me, Airspace
Docket No. 96-ASW-08, as published in the Federal Register on June 18,
1996 (61 FR 30842), is withdrawn.
Authority: 49 U.S.C. 40103, 40113, 40120; E.O. 10854; 24 FR
9565, 3 CFR, 1959-1963 Comp., p. 389; 49 U.S.C. 106(g); 14 CFR
11.69.
Issued in Fort Worth, TX on May 12, 1997.
Albert L. Viselli,
Manager, Air Traffic Division, Southwest Region.
[FR Doc. 97-13567 Filed 5-22-97; 8:45 am]
BILLING CODE 4910-13-M
Complete official Federal Register PDF
FR Doc. 97-13551 Taking of Marine Mammals Incidental to Commercial Fishing Operations; Atlantic Large Whale Take Reduction Plan Regulations
[Federal Register Volume 62, Number 100 (Friday, May 23, 1997)]
[Proposed Rules]
[Page 28415]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-13551]
-----------------------------------------------------------------------
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 229
[Docket No. 970129015-7072-02; I.D. 031997B]
RIN 0684-AI84
Taking of Marine Mammals Incidental to Commercial Fishing
Operations; Atlantic Large Whale Take Reduction Plan Regulations
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Proposed rule; reopening of comment period.
-----------------------------------------------------------------------
SUMMARY: On April 7, 1997, NMFS issued a proposed plan and implementing
regulations that would reduce serious injury and mortality of four
large whale stocks that occur incidental to certain fisheries. During
the comment period NMFS received many comments expressing concern that
the existing comment period is inadequate to allow for development of
appropriate comments. Therefore, NMFS is reopening the public comment
period in order to ensure that these important comments can be
received.
DATES: Comments on the proposed plan and proposed rule to implement the
plan must be received by June 13, 1997.
ADDRESSES: Send comments to Chief, Marine Mammal Division, Office of
Protected Resources, National Marine Fisheries Service, 1315 East-West
Highway, Silver Spring, MD 20910-33226.
FOR FURTHER INFORMATION CONTACT: Kim Thounhurst, NMFS, Northeast
Region, 508/281-9368; Bridget Mansfield, NMFS, Southeast Region, 813/
570-5312; or Michael Payne, NMFS, Office of Protected Resources, 301/
713-2322.
SUPPLEMENTARY INFORMATION: On April 7, 1997 (62 FR 16519), NMFS issued
a proposed plan and implementing regulations that would reduce the
bycatch and serious injury and mortality of several large whale stocks
that occur incidental to fishing for multiple species, including
monkfish and dogfish, in U.S. New England sink gillnet fisheries; for
multiple species in the U.S. mid-Atlantic coastal gillnet fisheries;
for lobster in the Gulf of Maine and U.S. mid-Atlantic lobster trap/pot
fisheries; and for sharks in the Southeastern U.S. Atlantic shark net
fishery, pursuant to the Marine Mammal Protection Act (MMPA). The whale
stocks considered under this plan consist of the North Atlantic right
whale (Eubalaena glacialis), Western North Atlantic stock, humpback
whale (Megaptera novaeangliae), Western North Atlantic stock, fin whale
(Balaenoptera physalus), Western North Atlantic stock, and minke whale
(Balaenoptera acutorostrata), Canadian East Coast stock. The comment
period on the proposed rule and regulations implementing the rule ended
on May 15, 1997. During the comment period NMFS received many comments
at eleven public hearings expressing concern that the existing comment
period is inadequate to allow for development of appropriate comments.
Further, NMFS has been informed that several groups have been convened
to review the proposed measures in detail in order to provide the
agency with constructive comments on the proposed rule. Therefore, we
are reopening the public comment period until June 13, 1997, in order
to ensure that these important comments can be received.
Dated: May 19, 1997.
Rolland A. Schmitten,
Assistant Administrator for Fisheries, National Marine Fisheries
Services.
[FR Doc. 97-13551 Filed 5-22-97; 8:45 am]
BILLING CODE 3510-22-F
Complete official Federal Register PDF
FR Doc. 97-13542 Radiation Exposure Compensation Act: Evidentiary Requirements; Definitions and Number of Claims Filed
[Federal Register Volume 62, Number 100 (Friday, May 23, 1997)]
[Proposed Rules]
[Pages 28393-28396]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-13542]
-----------------------------------------------------------------------
DEPARTMENT OF JUSTICE
Civil Division
28 CFR Part 79
RIN 1105-AA49
[A.G. Order No. 2084-97]
Radiation Exposure Compensation Act: Evidentiary Requirements;
Definitions and Number of Claims Filed
AGENCY: Civil Division, Department of Justice.
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: The Department of Justice (``the Department'') proposes to
amend its existing regulations implementing the Radiation Exposure
Compensation Act (``RECA'' or ``Act''). The proposed rule would: Allow
claimants to submit affidavits or declarations in support of a claim
under certain circumstances; allow the use of high resolution computed
tomography reports and pathology reports of tissue biopsies as
additional means by which claimants can present evidence of a
compensable non-malignant respiratory disease; amend the definitions of
``smoker'' and ``non-smoker;'' include in situ lung cancers under the
definition of primary cancers of the lung; and allow claimants who have
filed claims prior to the implementation of these proposed regulations
and have been denied compensation to file another three times.
DATES: Written comments must be submitted on or before July 22, 1997.
ADDRESSES: Please submit written comments to Gerard W. Fischer,
Assistant Director, U.S. Department of Justice, Civil Division, P.O.
Box 146, Ben Franklin Station, Washington, D.C. 20044-0146.
FOR FURTHER INFORMATION CONTACT: Gerard W. Fischer (Assistant
Director), (202) 616-4090 and Lori Beg (Attorney), (202) 616-4377.
SUPPLEMENTARY INFORMATION: At the recommendation of the President's
Advisory Committee on Human Radiation Experiments, the Administration
empaneled the Radiation Exposure Compensation Act Committee (the
``Radiation Committee'') to re-evaluate the provisions in the Radiation
Exposure Compensation Act, 42 U.S.C. Sec. 2210 note (1994), and the
Department's implementing regulations relating to uranium miners. In
July 1996, after extensive investigation, the Radiation Committee
submitted a Final Report detailing its findings and recommendations. In
addition to recommending changes to the eligibility criteria in the
Act, the Radiation Committee recommended that the Department modify
some of the regulations governing proof of medical, smoking, and
exposure criteria. Based upon this report and the Department's own
evaluation of the regulations, this rule is proposed.
This proposed rule would expand the set of circumstances in which
claimants are allowed to submit affidavits or declarations in support
of a claim. Sworn statements are presently permitted to establish
identity of family members, prior receipt of other compensation, coffee
consumption and employment information. As modified by this rule,
claimants will now be allowed to submit sworn statements to establish
smoking and alcohol consumption histories where no other records exist.
This action is needed because relevant records are not available to
some claimants due to the passage of time. Therefore, this modification
represents only a minor expansion of an existing regulation.
The rule would also allow the use of high resolution computed
tomography (``HRCT'') reports and pathology reports of tissue biopsies
as additional means by which claimants can present evidence of a
compensable non-malignant respiratory disease. HRCT is increasingly
being used by physicians to diagnose pneumoconioses because it is often
a more sensitive diagnostic tool than standard chest x-rays. Accepting
HRCT findings will assist many claimants who cannot prove they have
developed a compensable non-malignant respiratory disease through
standard chest x-rays. Additionally, pathology reports of tissue
biopsies are considered a highly reliable basis for diagnosis of
disease by the medical community.
The rule would also allow the use of high resolution computed
tomography (``HRCT'') reports and pathology reports of tissue biopsies
as additional means by which claimants can present evidence of a
compensable non-malignant respiratory disease. HRCT is increasingly
being used by physicians to diagnose pneumoconioses because it is often
a more sensitive diagnostic tool than standard chest x-rays. Accepting
HRCT findings will assist many claimants who cannot prove they have
developed a compensable non-malignant respiratory disease through
standard chest x-rays. Additionally, pathology reports of tissue
biopsies are considered a highly reliably basis for diagnosis of
disease by the medical community.
The rule would amend the definitions of ``heavy smoker'' and
``smoker'' to exclude, and the definition of ``non-smoker'' to include,
claimants who stopped smoking for at least fifteen years prior to the
date of diagnoses of specific diseases. It is now accepted by experts
in the medical community that smoking cessation leads to a significant
reduction in relative risk of developing certain cancers. Another
proposed change would include in situ long cancers under the definition
of primary cancers of the lung, based upon expert opinion from the
National Cancer Institute.
Finally, the rule would allow claimants who have filed claims prior
to the implementation of these proposed regulations and have been
denied compensation to file another three times. This action would
allow denied claimants to take advantage of changes in the regulations
that liberalize documentation requirements. The Department anticipates
that much of the information in refiled claims will have been
previously verified. Accordingly, the internal administrative
processing costs of refiled cases will be minimal. Presently, the
regulations permit three attempts at establishing eligibility, so
[[Page 28394]]
this proposal simply continues that process.
Although the practical effect of the proposed rule will likely be
to increase the number of claimants eligible for compensation, the
extent of that increase is not entirely clear. Presently, RECA has been
appropriated $30 million for FY 1997. In addition, because the proposed
rule expands the type of evidence that will be considered, it is not
anticipated that the proposed rule will generate any significant
controversy.
In accordance with 5 U.S.C. 605(b), the Attorney General has
reviewed this regulation and certifies that this rule affects only
individuals filing claims under RECA. Therefore, this rule does not
have a significant economic impact on a substantial number of small
entities. This rule, however, is a significant regulatory action under
Executive Order 12866 and, accordingly, has been reviewed by the Office
of Management and Budget. The rule is not a major rule as defined by 5
U.S.C. 804(2) nor is it a rule having federalism implications
warranting assessment in accordance with section 6 of Executive Order
12612. In addition, this rule is in full compliance with the Paperwork
Reduction Act.
List of Subjects in 28 CFR Part 79
Administrative practice and procedure, Authority delegations
(Government agencies), Cancer, Claims, Radiation Exposure Compensation
Act, Radioactive materials, Reporting and recordkeeping requirements,
Underground mining, Uranium.
Accordingly, part 79 of chapter I of title 28 of the Code of
Federal Regulations is proposed to be amended as follows:
PART 79--CLAIMS UNDER THE RADIATION EXPOSURE COMPENSATION ACT
1. The authority citation for part 79 continues to read as follows:
Authority: Secs. 6 (b) and (j), Pub. L. 101-426, 104 Stat. 920
(42 U.S.C. 2210 note).
2. Section 79.4(c) is amended by redesignating paragraphs (c)(3)
and (c)(4) as paragraphs (c)(4) and (c)(5), adding a new paragraph
(c)(3) and revising paragraphs (c)(1) and (c)(2) and new paragraphs
(c)(4) and (c)(5) as follows:
Sec. 79.4 Burden of proof, production of documents, presumptions, and
affidavits.
* * * * *
(c) * * *
(1) Eligibility of family members as set forth in Sec. 79.51 (e),
(f), (g), (h) or (i);
(2) Other compensation received as set forth in Sec. 79.55 (c) or
(d);
(3) Smoking and/or drinking history and/or age at diagnosis as set
forth in Sec. 79.27(d) and Sec. 79.37(d);
(4) The amount of coffee consumed as set forth in Sec. 79.27(d); or
(5) Mining information as set forth in Sec. 79.33(b)(2).
3. Section 79.5 is amended by adding paragraph (c) to read as
follows:
Sec. 79.5 Requirements for written medical documentation,
contemporaneous records, and other records or documents.
* * * * *
(c) To establish eligibility the claimant or eligible surviving
beneficiary may be required to provide, where appropriate, additional
contemporaneous records to the extent they exist or an authorization to
release additional contemporaneous records or a statement by the
custodian(s) of the records certifying that the requested record(s) no
longer exist. Nothing in these regulations shall be construed to limit
the Assistant Director's ability to require additional documentation.
4. In Sec. 79.21, paragraph (d) is amended by adding one new
sentence after the second sentence to read as follows:
Sec. 79.21 Definitions.
* * * * *
(d) * * * The term excludes an individual who smoked more than 20
pack years, but who can establish in accordance with Sec. 79.27 that he
or she stopped smoking at least fifteen (15) years prior to the
diagnosis of primary cancer of the esophagus, pharynx, or pancreas, and
did not resume smoking at any time thereafter.
* * * * *
5. Section 79.27 is amended by revising the heading, redesignating
paragraph (c) as new paragraph (e), adding new paragraphs (c) and (d),
and revising paragraphs (a) and (b), to read as follows:
Sec. 79.27 Proof of no heavy smoking, no heavy drinking, no heavy
coffee drinking and no indication of the presence of hepatitis B and
cirrhosis.
(a)(1) If the claimant or eligible surviving beneficiary is
claiming eligibility under this Subpart for primary cancer of the
esophagus, pharynx, pancreas or liver, the claimant or eligible
surviving beneficiary must submit, in addition to proof of the disease,
all medical records listed below from any hospital, medical facility,
or health care provider that were created within the period six (6)
months before and six (6) months after the date of diagnosis of primary
cancer of the esophagus, pharynx, pancreas or liver:
(i) All history and physical examination reports;
(ii) All operative and consultation reports;
(iii) All pathology reports; and
(iv) All physician, hospital and health care facility admission and
discharge summaries.
(2) In the event that any of the above records no longer exist, the
claimant or eligible surviving beneficiary must submit a certified
statement by the custodian(s) of those records to that effect.
(b) If the medical records listed in paragraph (a) of this section,
or information possessed by the state cancer or tumor registries
reflects that the claimant was a heavy smoker or a heavy drinker or
indicates the presence of hepatitis B and/or cirrhosis, the Radiation
Exposure Compensation Unit will notify the claimant or eligible
surviving beneficiary and afford that individual the opportunity to
submit other written medical documentation or contemporaneous records
in accordance with Sec. 79.52(b) to establish that the claimant was not
a heavy smoker or heavy drinker or that there was no indication of
hepatitis B and/or cirrhosis.
(c) The Unit may also require that the claimant or eligible
surviving beneficiary provide additional medical records or other
contemporaneous records and/or an authorization to release such
additional medical and contemporaneous records as may be needed to make
a determination regarding the indication of the presence of hepatitis B
and/or cirrhosis and the claimant's history of smoking and alcohol-
consumption.
(d) If the custodian(s) of the records listed in paragraph (a) of
this section and records requested in accordance with paragraph (c) of
this section certifies that a claimant's records no longer exist, and
if the state cancer or tumor registries do not contain information
concerning the claimant's history of smoking or alcohol-consumption,
the Assistant Director may require that the claimant or eligible
surviving beneficiary submit an affidavit (or declaration) made under
penalty of perjury detailing the histories or lack thereof and the
basis for such knowledge (if the eligible surviving beneficiary). This
affidavit (or declaration) will be considered by the Assistant Director
in making a determination concerning the claimant's history of smoking
and alcohol-consumption.
* * * * *
[[Page 28395]]
6. Section 79.31 is amended by revising paragraphs (e) and (f) and
the second sentence of paragraph (h), and adding paragraphs (s) and (t)
to read as follows:
Sec. 79.31 Definitions
* * * * *
(e) Non-smoker means an individual who never smoked tobacco
cigarette products or smoked less than the amount defined in paragraph
(f) of this section and includes an individual who smoked at least one
(1) pack year but whose acceptable documentation as set forth in
Sec. 79.37 establishes that he or she stopped smoking at least fifteen
(15) years prior to the diagnosis of primary cancer of the lung and did
not resume smoking at any time thereafter.
(f) Smoker means an individual who has smoked at least one (1) pack
year of cigarette products, and who is not deemed a non-smoker by
virtue of paragraph (e) of this section.
* * * * *
(h) * * * The term includes cancers in situ.
* * * * *
(s) High resolution computed tomography (HRCT) means a computed
tomograph (CT) of the chest that utilizes thin collimation, image
reconstruction with a high-spatial frequency algorithm, increased kVp
or mA technique, and the use of a large matrix size.
(t) HRCT Reader means a physician who is board-certified in
radiology and who devotes at least thirty (30) percent of his or her
practice to thoracic radiology or is a member of the Society of
Thoracic Radiology. An affidavit (or declaration) made under penalty of
perjury must be submitted by the HRCT reader to establish the above
qualifications.
8. Section 79.36, is amended by revising the first sentence of
paragraph (a), revising paragraph (d)(1)(ii), and adding new paragraph
(e) to read as follows:
Sec. 79.36 Proof of non-malignant respiratory disease.
(a) Written medical documentation is required in all cases to prove
that the claimant developed a non-malignant respiratory disease. * * *
* * * * *
(d) * * *
(1) * * *
(i) * * *
(ii) If the claimant is alive, (A) One of the following:
(1) Chest x-rays and two ``B'' reader interpretations. A chest x-
ray administered in accordance with standard techniques on full size
film at quality 1 or 2, and interpretative reports of the x-ray by two
certified ``B'' readers classifying the existence of fibrosis of
category 1/0 or higher according to the ILO 1980, or subsequent
revisions;
(2) High resolution computed tomography scans and interpretation.
An HRCT scan administered in accordance with Tables 5a and 5b in
Appendix D of this part, and an interpretative reading by one HRCT
reader showing:
(i) Honeycombing, bilaterally at two or more levels; or
(ii) Any two of the findings listed below, visible bilaterally at
two or more HRCT levels in a non-dependent lung:
(A) Intralobular interstitial thickening;
(B) Irregular interlobular septal thickening;
(C) Parenchymal bands unassociated with pleural thickening;
(D) Subpleural lines or subpleural nodules (1 to 5 mm in diameter);
(E) Architectural distortion;
(F) Pulmonary nodules (1 to 10 mm. in diameter); or
(G) Cicatricial emphysema; or
(3) Pathology reports of tissue biopsies. A pathology report of a
tissue biopsy, but only if performed for medically-justified reasons;
and
(B) One or more of the following:
(1) Pulmonary function tests. Pulmonary function tests consisting
of three tracings recording the results of the forced expiratory volume
in one second (FEV1) and the forced vital capacity (FVC) administered
and reported in accordance with the Standardization of Spirometry--1987
Update by the American Thoracic Society, and reflecting values for FEV1
or FVC that are equal to or less than 80% of the predicted value for an
individual of the claimant's age, sex, and height, as set forth in the
Tables in Appendix A; or
(2) Arterial blood-gas studies. An arterial blood-gas study
administered at rest in a sitting position, or an exercise arterial
blood-gas test, reflecting values equal to or less than the values set
forth in the Tables in Appendix B.
* * * * *
(e) The Radiation Exposure Compensation Unit may seek qualified
medical review of HRCT, ``B'' reader interpretations, and pathology
reports of tissue biopsies submitted by a claimant or eligible
surviving beneficiary or obtain additional HRCT and ``B'' reader
interpretations or pathology reports of tissue biopsies at any time to
ensure that appropriate weight is given to this evidence and to
guarantee uniformity and reliability. This review may include obtaining
additional HRCT and chest x-ray interpretations and additional
pathology reports of tissue biopsies.
9. Section 79.37 is amended by revising the section heading,
revising paragraphs (a) and (b), and adding new paragraphs (c) and (d)
to read as follows:
Sec. 79.37 Proof of non-smoker and diagnosis prior to age 45.
(a) (1) In order to prove a history of non-smoking for purposes of
Sec. 79.32(c)(1), and/or diagnosis of a compensable disease prior to
age 45 for purposes of Sec. 79.32(c)(2)(i), the claimant or eligible
surviving beneficiary must submit all medical records listed below from
any hospital, medical facility, or health care provider that were
created within the period six (6) months before and six (6) months
after the date of diagnosis of primary lung cancer or a compensable
nonmalignant respiratory disease:
(i) All history and physical examination reports;
(ii) All operative and consultation reports;
(iii) All pathology reports;
(iv) All physician, hospital and health care facility admission and
discharge summaries.
(2) In the event that any of the above records no longer exist, the
claims or eligible surviving beneficiary must submit a certified
statement by the custodian(s) of those records to that effect.
(b) If, after a review of the records listed in paragraph (a)
above, and/or the information possessed by the PHS, NIOSH, state cancer
or tumor registries, state authorities, or the custodian of a federally
supported health-related study, the Assistant Director finds that the
claimant was a smoker, and/or that the claimant was diagnosed with a
compensable disease after age 45, the Unit will notify the claimant or
eligible surviving beneficiary and afford that individual the
opportunity to submit other written medical documentation in accordance
with Sec. 79.52(b) to establish that the claimant was a non-smoker and/
or was diagnosed with a compensable disease prior to age 45.
(c) The Unit may also require that the claimant or eligible
surviving beneficiary provide additional medical records or other
contemporaneous records and/or an authorization to release such
additional medical and contemporaneous records as may be needed to make
a determination regarding the claimant's smoking history and/or age at
diagnosis with a compensable disease.
(d) If the custodian(s) of the records listed in paragraph (a) of
this section and the records requested in accordance with paragraph (c)
of this section certifies that a claimant's records no
[[Page 28396]]
longer exist, and information possessed by the PHS, NIOSH, state
cancer or tumor registries, state authorities, or the custodian of a
federally supported health-related study do not contain information
pertaining to the claimant's smoking history, the Assistant Director
may require that the claimant or eligible surviving beneficiary submit
an affidavit (or declaration) made under penalty of perjury detailing
the claimant's smoking history or lack thereof and, if the affiant is
the eligible surviving beneficiary, the basis for such knowledge. This
affidavit (or declaration) will be considered by the Assistant Director
in making a determination concerning the claimant's history of smoking.
10. In Sec. 79.51, paragraph (j) is amended by revising paragraphs
(j)(3) and (j)(4), adding paragraph (j)(5) and adding a sentence at the
end of the concluding text to read as follows:
Sec. 79.51 Filing of claims.
* * * * *
(j) * * *
(3) Onsite participation in a nuclear test,
(4) Exposure to a defined minimum level or radiation in a uranium
mine or mines during a designated time period, or
(5) The identity of the claimant and/or surviving beneficiary.
* * * Claims filed prior to the date of implementation of these
amending regulations will not be included in determining the number of
claims filed.
11. In Sec. 79.55, paragraphs (d)(1)(i) and (d)(1)(ii) are revised
to read as follows:
Sec. 79.55 Procedures for payment of claims.
* * * * *
(d) * * *
(1) * * *
(i) Any disability payments or compensation benefits paid to the
claimant and his/her dependents while the claimant is alive; and
(ii) Any Dependency and Indemnity Compensation payments made to
survivors due to death related to the illness for which the claim under
the Act is submitted.
* * * * *
11. Appendix D to Part 79 is added to read as follows:
Appendix D to Part 79--HRCT Technique
Table A: Summary of HRCT Technique; Essential Scanner Settings
1. Collimation: Thinnest available collimation (1-1.5 mm).
2. Reconstruction algorithm: High-spatial frequency or ``sharp''
algorithm
3. Scan time: 1-2 seconds
4. kVp; mA; mAs: Routine settings for chest CT
5. Matrix size: Largest available (512 x 512).
6. Window level: -600 to -700 HU Window width: 1000 HU to 1500 HU
7. Photography: 12 on 1.
8. Field of view: As small as possible to incorporate both lungs
(30-40 cm.)
Table B: Scanning Protocol and Procedure; HRCT Technique: Scan Protocol
for Suspected Silicosis or Fibrotic Lung disease
Chest radiograph normal or minimally abnormal:
Full inspiration with prone and supine scans using 2-cm spacing from
lung apices to bases.
Dated: May 16, 1997.
Janet Reno,
Attorney General.
[FR Doc. 97-13542 Filed 5-22-97; 8:45 am]
BILLING CODE 4410-12-M
Complete official Federal Register PDF
FR Doc. 97-13481 National Oil and Hazardous Substances Pollution Contingency Plan National Priorities List
[Federal Register Volume 62, Number 100 (Friday, May 23, 1997)]
[Proposed Rules]
[Pages 28407-28410]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-13481]
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 300
[FRL-5828-5]
National Oil and Hazardous Substances Pollution Contingency Plan
National Priorities List
AGENCY: Environmental Protection Agency.
ACTION: Notice of intent to delete the Middletown Air Field Site,
located in Middletown, Pennsylvania, from the National Priorities List
and request for comments.
-----------------------------------------------------------------------
SUMMARY: The Environmental Protection Agency (EPA) Region III announces
its intent to delete the Middletown Air Field Site (Site) from the
National Priorities List (NPL) and requests public comment on this
action. The NPL constitutes Appendix B of the National Oil and
Hazardous Substances Pollution Contingency Plan (NCP), 40 CFR part 300,
which EPA promulgated pursuant to Section 105 of the Comprehensive
Environmental Response, Compensation, and Liability Act (CERCLA), as
amended. EPA and the Pennsylvania Department of Environmental
Protection (PADEP) have determined that all appropriate CERCLA response
actions have been implemented and that no further cleanup is
appropriate. Moreover, EPA and the State have determined that remedial
activities conducted at the Site to date have been protective of public
health, welfare, and the environment.
DATES: Comments concerning the proposed deletion of this Site from the
NPL may be submitted on or before June 23, 1997.
ADDRESSES: Comments may be submitted to Nicholas J. DiNardo, (3HW50),
Project Manager, U.S. Environmental Protection Agency, 841 Chestnut
Building, Philadelphia, Pennsylvania 19107, (215) 566-3365.
Comprehensive information on this Site is available for viewing at
the Site information repositories at the following locations:
U.S. EPA, Region III, Hazardous Waste Technical Information Center, 841
Chestnut Building, Philadelphia, PA 19107, (215) 566-5363.
Middletown Public Library, 20 North Catherine Street, Middletown, PA
17057, (717) 944-6412.
FOR FURTHER INFORMATION CONTACT: Nicholas J. DiNardo (3HW50), U.S.
Environmental Protection Agency, Region III, 841 Chestnut Building,
Philadelphia, PA 19107, (215) 566-3365.
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Introduction
II. NPL Deletion Criteria
III. Deletion Procedures
IV. Basis for Intended Site Deletion
I. Introduction
The Environmental Protection Agency (EPA) Region III announces its
intent to delete the Middletown Air Field Site, Dauphin County,
Pennsylvania, from the National Priorities List (NPL), Appendix B of
the National Oil and Hazardous Substances Pollution Contingency Plan
(NCP), and requests comments on this deletion. The EPA identifies sites
that appear to present a significant risk to public health, welfare, or
the environment and maintains the NPL as the list of those sites. Sites
on the NPL may be the subject of remedial actions financed by the
Hazardous Substance Superfund Response Trust Fund (Fund). Pursuant to
Sec. 300.425(e) of the NCP, any site deleted from the NPL remains
eligible for Fund-financed remedial actions if conditions at the site
warrant such action.
EPA will accept comments on the proposal to delete this Site from
the NPL for thirty calendar days after publication of this notice in
the Federal Register.
Section II of this notice explains the criteria for deleting sites
from the NPL. Section III discusses procedures that EPA is using for
this action. Section IV discusses how the site meets the deletion
criteria.
II. NPL Deletion Criteria
The NCP establishes the criteria that the Agency uses to delete
sites from the NPL. In accordance with 40 CFR 300.425(e), sites may be
deleted from the NPL where no further response is appropriate. In
making this determination, EPA will consider, in consultation with the
State, whether any of the following criteria have been met:
(i) Responsible or other parties have implemented all appropriate
response actions required; or
[[Page 28408]]
(ii) All appropriate Fund-financed responses under CERCLA have been
implemented and no further cleanup is appropriate; or
(iii) As set forth in the investigative findings for the Site, the
release poses no significant threat to public health or the environment
and, therefore, taking of remedial measures is not appropriate.
In addition to the above, for all remedial actions which result in
hazardous substances, pollutants, or contaminants remaining at the site
above levels that allow for unlimited use and unrestricted exposure,
section 121(c) of CERCLA, 42 U.S.C. 9621(c), the NCP at 40 CFR
300.430(f)(4)(ii) and EPA's policy, OSWER Directive 9320.2-09, dated
August 1995, provide that a subsequent review of the site will be
conducted at least every five years after the initiation of the first
remedial action at the Site to ensure that conditions at the Site
remain protective of public health and the environment. In the case of
this Site, EPA conducted a ``five year review'' in August of 1996.
Based on the inspection, EPA determined that conditions at the Site
remain protective of public health and the environment. As explained/
discussed below, the Site meets the NCP's deletion criteria listed
above. Five-year reviews will continue to be conducted at the Site
until no hazardous substances, pollutants, or contaminants remain above
levels that allow for unlimited use and unrestricted exposure.
Releases shall not be deleted from the NPL until the state in which
the release was located has concurred on the proposed deletion. 40 CFR
300.425(e)(2).
All releases deleted from the NPL are eligible for further Fund-
financed remedial actions should future conditions warrant such action.
Whenever there is a significant release from a site deleted from the
NPL, the site can be restored to the NPL without application of the
Hazard Ranking System. 40 CFR 300.425(e)(3).
III. Deletion Procedures
Section 300.425(e)(4) of the NCP sets forth requirements for site
deletions to assure public involvement in the decision. During the
proposal to delete a site from the NPL, EPA is required to conduct the
following activities:
(i) Publish a notice of intent to delete in the Federal Register
and solicit comment through a public comment period of a minimum of 30
calendar days;
(ii) Publish a notice of availability of the notice of intent to
delete in a major local newspaper of general circulation at or near the
site that is proposed for deletion;
(iii) Place copies of information supporting the proposed deletion
in the information repository at or near the site proposed for
deletion; and,
(iv) Respond to each significant comment and any significant new
data submitted during the comment period in a Responsiveness Summary.
If appropriate, after consideration of comments received during the
public comment period, EPA then publishes a notice of deletion in the
Federal Register and places the final deletion package, including the
Responsiveness Summary, in the Site repositories.
Deletion of a site from the NPL does not itself create, alter, or
revoke any individual's rights or obligations. As stated in Section II
of this Notice, Sec. 300.425(e)(3) of the NCP provides that the
deletion of a site from the NPL does not preclude eligibility for
future response actions.
IV. Basis for Intended Site Deletion
The following site summary provide's EPA's rationale for the
proposal to delete the Middletown Air Field Site from the NPL.
The Site is located in Dauphin County, Pennsylvania, about 8 miles
southeast of Harrisburg. It is situated between the boroughs of
Highspire and Middletown along Pennsylvania Route 230, and bordered by
the Susquehanna River to the south. The site property was initially
established as Camp George Gordon Meade by the Army in July 1898 and
then was operated as a pickle farm by the H.J. Heinz company until May
15, 1917, when ground was broken for an Army Signal Corps storage depot
(the Aviation General Depot, later known as the Middletown Air
Intermediate Depot). Flight activities began on the site in 1918 and
the airfield was named Olmstead Field in 1923. In 1947 it became known
as Olmstead Air Force base. In 1967 Olmstead Air Force Base was
transferred to the Commonwealth of Pennsylvania and the facility was
renamed Olmstead State Airport. It was renamed Harrisburg International
Airport in 1971.
The former Air Force field and most of the former Air Force
industrial buildings (approximately 625 acres) are currently owned by
the Commonwealth of Pennsylvania. The Pennsylvania Department of
Transportation (PennDOT) maintains and manages the Harrisburg
International Airport (HIA) portion. The 193rd Special Operations group
of the Pennsylvania Air National Guard operates a small portion of the
Site, just east of the airport complex. Approximately 218 acres of
former administrative and housing facilities north of Route 230 are
owned by the Harrisburg campus of Pennsylvania State University. An
additional 93 acres of former Air Force warehouse facilities north of
the Pennsylvania Turnpike (I-76) were originally leased to Fruehauf
Industries (Fruehauf) in May 1966 by a local industrial development
authority. Fruehauf manufactured truck trailers and its Site activities
including welding, punching, fastening, foaming and painting. By May
23, 1986, Fruehauf had acquired ownership of the 93 acres. In June
1995, the property, excluding the North Base Landfill, was sold to
First Industrial Realty Trust, Inc. by Fruehauf. Fruehauf still retains
ownership the North Base Landfill property.
Activities throughout the history of the Site included:
Warehousing and supply of parts, equipment, general
supplies, petroleum, oil and lubricants (POL) for the Department of the
Army's Northeast Procurement District;
Complete aircraft overhaul including stripping,
repainting, engine overhaul, reassembly, and equipment replacement;
Engine and aircraft testing; and
General base support maintenance and operation.
HIA currently conducts general airport operations and maintenance,
and leases buildings to fixed base operators and industrial tenants.
Tenants have performed a number of activities at this Site, including:
Aircraft maintenance operations, aircraft paint stripping
and repainting, and parts cleaning;
Aircraft instrument overhaul and repair;
Fabric dying;
Machine shop operations; and
Typewriter ribbon inking and cartridge assembly.
Various studies have been conducted by both EPA and the
Pennsylvania Department of Environmental Protection (PADEP, formerly
the Pennsylvania Department of Environmental Resources), at the
facility since 1983 to investigate and monitor areas that were affected
by operations at the Site. In March 1983, PADEP discovered the volatile
organic compound (VOC) trichloroethylene (TCE) in six of ten HIA
production wells. This discovery triggered subsequent environmental
investigations and studies, and the installation of a water treatment
system that is currently still in use at the facility.
In 1984, EPA conducted ground penetrating radar and magnetometer
surveys at the Runway, Industrial, and
[[Page 28409]]
North Base Landfill areas at the Site. EPA removed nine partially
exposed 55-gallon drums from a fill area located along a stream bank
northeast of the Meade Heights housing complex. The drums were empty
except for water and coatings of a hard, black tarry substance. EPA
sampled the drum contents and found that they did not exhibit the
characteristic of EP toxicity (as described in 40 CFR 261.24) at the
time of the sampling.
EPA evaluated the Site under the Hazard Ranking System and was
proposed for inclusion on the National Priorities List (NPL) on October
1, 1984. EPA added the Site to the NPL on June 1, 1986. 51 FR 21054
(June 6, 1996). EPA's initial response after the NPL listing focused on
the presence of VOCs found in the groundwater beneath the Site. EPA
selected an interim remedy in the December 30, 1987, Record of Decision
(1987 ROD) that addressed HIA's contaminated drinking water supply. The
selected response consisted of the installation of an air stripping
system for the removal of VOCs to meet the drinking water standards.
The existing treatment system consists of two air strippers, an ion
exchange unit for the removal of hardness, and disinfection prior to
distribution.
A train spill occurred northwest of the runway area on June 4,
1988, approximately 500 feet west of Production Well HIA-12. Diethylene
glycol and mineral oil were released to the soil as a result of the
spill. PADEP remediated the site of the spill through pumping ground
water into settling tanks, skimming the mineral oil, biotreatment of
the diethylene glycol, and reinjection of the treated water. PADEP
completed the remediation in 1989.
In order to fully characterize the remainder of the Site and
identify potential public health and environmental concerns, EPA issued
a contract for an extensive study of the Site in 1988. The study was
performed in two phases--the Remedial Investigation (RI) and the
Feasibility Study (FS). See 40 CFR 300.430 (d) and (e).
Based upon the 1988 RI/FS for the Site, the Operable Unit 2 Record
of Decision (1990 ROD), signed on December 17, 1990, directed continued
operation of existing drinking water supply treatment and the current
distribution system, the institution of groundwater use restrictions,
and additional monitoring of the water supply wells. The remedy
contained in the 1990 ROD also directed the use of institutional
controls to address direct contact and other threats from potentially
contaminated soils that may be exposed at the Site during construction,
demolition, excavation or other activities that disturb Site soils and
involve the potential for worker and public exposure to presently
contaminated soils. The 1990 ROD also selected final remedial actions
at study areas (SAs) 1, 2, 3, and 4 and an interim action at SA-5,
since the field investigation results at SA-5 were inconclusive in
determining contaminant sources and their potential environmental
impact.
Under the 1990 ROD, the remedy selection for SA-1 involved the
continued operation of the ground water treatment system currently in
place at the Site, the institution of restrictions for all ground water
use throughout the Site (which extends from the North Base Landfill to
the Susquehanna River), and the addition of monitoring for the water
supply wells.
The remedy for SA-2 and SA-3 included land use and access
restrictions, and the development of public and worker health and
safety requirements for activities involving construction, demolition,
and excavation or other activities that would disturb the Site soil.
The remedy for SA-4, which provided for the installation of
``sentinel wells'' designed to assure protection of well MID-04 from
contaminants found on the Site, was coupled with the remedy for SA-1 to
efficiently and effectively address ground water contamination at the
Site.
The interim action required for SA-5 included a study evaluating
the water quality of, and organisms living in, the stream near Meade
Heights.
After reviewing the 1990 ROD, PADEP asserted that the ROD did not
fully investigate the relationship between soil and ground water
contamination, nor did it consider active soil cleanup technologies. In
1992, an Explanation of Significant Differences (ESD) was issued to
address PADEP's concerns by expanding the scope of the Supplemental
Studies Investigation (SSI) required by the 1990 ROD. The ESD explained
that the ground water remedy selected in the 1990 ROD was an interim
action and that the final decision would follow in the third ROD. The
ESD also rescinded the requirement in the 1990 ROD, that the existing
water supply system must continue to operate even if airport operations
cease would be eliminated and reevaluated at a later date.
The SSI concluded that no contaminants of concern were identified
in the surface water or sediment at the Site above the Biological
Technical Assistance Group (BTAG) screening levels. Furthermore, based
on the Baseline Risk Assessment (BRA) that was performed as part of the
SSI, EPA concluded in the third ROD, issued on September 17 1996, that:
No additional action, other than that already required by
earlier RODs, is necessary to address soils at the Site. Therefore all
remedial designs and remedial actions are complete, and no cleanup
standards are set for any operable unit.
Institutional restrictions on ground water use will be
continued at the Site.
Monitoring of surface water and sediment in the
Susquehanna River as required by the 1990 ROD should continue. In
addition, two locations involving the J-5 storm drain, situated next to
building 208, should also be sampled quarterly and evaluated as part of
the five year review for the Site. These locations are the J-5 storm
drain and the outfall of the J-5 storm line at Post Run. The sampling
frequency may be modified by PADEP after one year. No other sampling
for surface water and sediment is deemed necessary at this time.
Monitoring of the sentinel wells in the North Base
Landfill Area, as required by the 1990 ROD for the protection of the
MID-04 well, should continue. No other actions for this area are deemed
necessary at this time.
No action is required for surface water or sediment in
Meade Heights.
In the event that the HIA should cease or reduce the
pumping of the production wells, PADEP will assess the potential for
currently contained hazardous substances to migrate towards the
Susquehanna River and PADEP, as provided for in the April 16, 1997,
Memorandum of Understanding (MOU) between PADEP and PennDOT, may impose
a sampling and review period (not to initially exceed 5 years) to
assess whether any impact is occurring regarding the Susquehanna River.
After the initial review, PADEP will again review the Site's status and
determine if additional action is warranted.
As required by the 1990 ROD, ground water use will be
restricted in the event any new wells are to be installed or
modification of usage to existing wells is to be implemented at the
Site. The extracted ground water must be tested and the results
reported to PADEP. Ground water use at the Site will require a permit
or approval by PADEP prior to use.
The 1996 ROD concluded that no additional action, other than that
already required by the 1987 ROD and the 1990 ROD, as modified by the
1992
[[Page 28410]]
ESD, is required at the Site. Further, EPA has concluded that the 1996
ROD's ``No Further Action'' alternative's use of engineering and
institutional controls at the Site will not interfere with the
redevelopment and expansion objectives set forth in the October 1990
Master Plan Harrisburg International Airport commissioned by PennDOT's
Bureau of Aviation's State-owned Airports Division.
On August 21, 1996, EPA and PADEP conducted a final inspection of
the sentinel well construction. No deficiencies were noted nor were
additional activities deemed necessary as a result of the inspection.
All remedial actions for this Site are complete. Collection of
monitoring well data from the HIA production wells and the North Base
Landfill sentinel wells, initially on a quarterly basis (unless and
until modified by PADEP), is the only O&M requirement necessary.
PADEP has assumed the responsibility for assuring compliance with
the institutional controls identified in the RODs for this Site, and
the review of data generated as part of the 5-year review process. On
April 16, 1997, PADEP and PennDOT entered into a Memorandum of
Understanding (MOU). The MOU expresses the intent of PADEP and PennDOT
that PennDOT will, inter alia, perform the sampling of the wells, water
and sediment and implement institutional controls, as required by
remedy selected in the 1996 ROD.
The statutorily required five-year review of the ground water
treatment remedy selected in the 1987 ROD was completed on September
1996. Further five year reviews will be conducted pursuant to OSWER
Directive 9355.7-02. ``Structure and Components of Five-Year Reviews,''
and/or other applicable guidance. The next scheduled five year review
is set for September, 1998. Subsequent five year reviews will be
conducted pursuant to the directive.
The remedies selected for this Site have been implemented in
accordance with the three Records of Decision as modified and expanded
in the EPA-approved Remedial Designs for the Operable Units and the
1992 ESD. Human health threats and potential environmental impacts have
been reduced to acceptable levels. EPA and the PADEP find that the
remedies implemented continue to provide adequate protection of human
health and the environment.
EPA, with the concurrence of PADEP, believes that the criteria for
deletion of this Site have been met. Therefore, EPA is proposing
deletion of this Site from the NPL.
Dated: May 15, 1997.
W. Michael McCabe,
Regional Administrator, USEPA Region III.
[FR Doc. 97-13481 Filed 5-22-97; 8:45 am]
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