issue-1996-02-26•Federal Register final rules — 1996-02-26
Federal Register final rules — 1996-02-26
issue-1996-02-26Federal Register final rules — 1996-02-26Regulation
Published Federal Register documents, not public-inspection drafts. The GPO XML/text rendition is a research aid; the linked complete official PDF retains the printed layout and all graphics. Graphics are retained in that PDF and are not independently reproduced in this text rendition. Publication does not establish that every provision remains legally in force.
FR Doc. 96-4277 Safety Zones, Security Zones, and Special Local Regulations
[Federal Register Volume 61, Number 38 (Monday, February 26, 1996)]
[Rules and Regulations]
[Pages 7071-7073]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-4277]
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DEPARTMENT OF TRANSPORTATION
Coast Guard
33 CFR Parts 100 and 165
[CGD 96-005]
Safety Zones, Security Zones, and Special Local Regulations
AGENCY: Coast Guard, DOT.
ACTION: Notice of temporary rules issued.
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SUMMARY: This document provides required notice of substantive rules
adopted by the Coast Guard and temporarily effective between October 1,
1995 and December 31, 1995, which were not published in the Federal
Register. This quarterly notice lists temporary local regulations,
security zones, and safety zones, which were of limited duration and
for which timely publication in the Federal Register was not possible.
DATES: This notice lists temporary Coast Guard regulations that became
effective and were terminated between October 1, 1995 and December 31,
1995, as well as several regulations which were not included in the
previous quarterly list.
ADDRESSES: The complete text of these temporary regulations may be
examined at, and is available on request, from Executive Secretary,
Marine Safety Council (G-LRA), U.S. Coast Guard Headquarters, 2100
Second Street, SW., Washington, DC 20593-0001.
FOR FURTHER INFORMATION CONTACT:
Commander Stephen J. Darmody, Executive Secretary, Marine Safety
Council at (202) 267-1477 between the hours of 8 a.m. and 3 p.m.,
Monday through Friday.
SUPPLEMENTARY INFORMATION: District Commanders and Captains of the Port
(COTP) must be immediately responsive to the safety needs of the waters
within their jurisdiction; therefore, District Commanders and COTPs
have been delegated the authority to issue certain local regulations.
Safety zones may be established for safety or environmental purposes. A
safety zone may be stationary and described by fixed limits or it may
be described as a zone around a vessel in motion. Security zones limit
access to vessels, ports, or waterfront facilities to prevent injury or
damage. Special local regulations are issued to enhance the safety of
participants and spectators at regattas and other marine events. Timely
publication of these regulations in the Federal Register is often
precluded when a regulation responds to an emergency, or when an event
occurs without sufficient advance notice. However, the affected public
is informed of these regulations through Local Notices to Mariners,
press releases, and other means. Moreover, actual notification is
provided by Coast Guard patrol vessels enforcing the restrictions
imposed by the regulation.
Because mariners are notified by Coast Guard officials on-scene
prior to enforcement action, Federal Register notice is not required to
place the special local regulation, security zone, or safety zone in
effect. However, the Coast Guard, by law, must publish in the Federal
Register notice of substantive rules adopted. To discharge this legal
obligation without imposing undue expense on the public, the Coast
Guard periodically publishes a list of these temporary special local
regulations, security zones, and safety zones. Permanent regulations
are not included in this list because they are published in their
entirety in the Federal Register. Temporary regulations may also be
published in their entirety if sufficient time is available to do so
before they are placed in effect or terminated. These safety zones,
special local regulations and security zones have been exempted from
review under E.O. 12866 because of their emergency
[[Page 7072]]
nature, or limited scope and temporary effectiveness.
The following regulations were placed in effect temporarily during
the period October 1, 1995 and December 31, 1995, unless otherwise
indicated.
Stephen J. Darmody,
Commander, U.S. Coast Guard, Executive Secretary, Marine Safety
Council.
Quarterly Report
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Effective
Docket No. Location Type date
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Charleston 95-072.................. Charleston, SC............ Safety Zone....................... 12/2/95
Corpus Christi 95-004.............. Corpus Christi, TX........ Safety Zone....................... 8/31/95
Corpus Christi 95-005.............. Corpus Christi, TX........ Safety Zone....................... 9/15/95
Hampton Roads 95-071............... Hampton Roads, VA......... Safety Zone....................... 10/3/95
Hampton Roads 95-072............... Hampton Roads, VA......... Safety Zone....................... 10/24/95
Hampton Roads 95-075............... Hampton Roads, VA......... Safety Zone....................... 10/16/95
Honolulu 95-005.................... Mamala Bay, Oahu, HI...... Safety Zone....................... 12/20/95
Honolulu 95-006.................... Oahu, HI.................. Safety Zone....................... 12/31/95
Houston 95-007..................... Houston, TX............... Safety Zone....................... 8/23/95
Houston 95-008..................... Houston, TX............... Safety Zone....................... 8/27/95
Huntington 95-003.................. Kanawha River, M. 31.1 to Safety Zone....................... 12/5/95
M. 67.7.
LA/Long Beach 95-009............... San Pedro Bay, CA......... Safety Zone....................... 10/27/95
LA/Long Beach 95-010............... San Pedro Bay, CA......... Safety Zone....................... 11/18/95
LA/Long Beach 95-011............... San Pedro Bay, CA......... Safety Zone....................... 12/7/95
LA/Long Beach 95-012............... San Pedro Bay, CA......... Safety Zone....................... 12/25/95
Miami 95-063....................... Fort Lauderdale, FL....... Safety Zone....................... 10/9/95
Miami 95-067....................... Fort Lauderdale, FL....... Safety Zone....................... 11/6/95
Miami 95-074....................... Miami, FL................. Security Zone..................... 12/8/95
New Orleans 95-029................. Mississippi River, M. 92.5 Safety Zone....................... 10/10/95
to M. 93.5.
New Orleans 95-024................. New Orleans, LA........... Security Zone..................... 8/1/95
New Orleans 95-027................. Florida Avenue Bridge, New Safety Zone....................... 10/18/95
Orleans, LA.
New Orleans 95-028................. Mississippi River, M. Safety Zone....................... 10/20/95
332.5 to M. 334.5.
New Orleans 95-036................. Mississippi River, M. Safety Zone....................... 12/16/95
228.5 to M. 230.6.
Philadelphia 95-076................ Marcus Hook, PA........... Safety Zone....................... 10/24/95
Philadelphia 95-082................ Delaware Bay, Salem River, Safety Zone....................... 12/12/95
NJ.
Philadelphia 95-088................ Marcus Hook, PA........... Safety Zone....................... 12/16/95
San Francisco Bay 95-006........... San Francisco, CA......... Safety Zone....................... 10/5/95
San Francisco Bay 95-007........... San Francisco, CA......... Safety Zone....................... 10/7/95
San Francisco Bay 95-008........... San Francisco, CA......... Safety Zone....................... 10/10/95
San Francisco Bay 95-009........... San Francisco, CA......... Safety Zone....................... 10/7/95
01-95-150.......................... East River, NY............ Security Zone..................... 10/4/95
01-95-154.......................... Hudson River, NY.......... Safety Zone....................... 10/26/95
01-95-155.......................... Hudson River, NY and NJ... Security Zone..................... 10/21/95
01-95-157.......................... East River, NY............ Security Zone..................... 10/21/95
01-95-158.......................... Greenwich Harbor, CT; Safety Zone....................... 10/8/95
Oyster Bay, NY.
01-95-158.......................... Boston, MA................ Safety Zone....................... 12/31/95
01-95-159.......................... Martha's Vineyard, MA..... Safety Zone....................... 10/6/95
01-95-160.......................... Martha's Vineyard, MA..... Safety Zone....................... 10/6/95
01-95-162.......................... Bayville, NY.............. Safety Zone....................... 11/18/95
01-95-166.......................... Boston, MA................ Security Zone..................... 10/28/95
01-95-172.......................... Port of New York and New Security Zone..................... 11/29/95
Jersey.
01-95-175.......................... New Bedford, MA........... Safety Zone....................... 12/31/95
01-95-184.......................... Queens, NY................ Security Zone..................... 10/20/95
01-95-187.......................... Morgan, NJ................ Safety Zone....................... 11/3/95
02-95-019.......................... Allegheny, Monongahela, M. Special Local..................... 10/7/95
.3; Ohio, M. .5.
05-95-068.......................... Camp Lejeune, NC.......... Safety Zone....................... 10/31/95
05-95-077.......................... Marcus Hook Range Channel, Anchorage Area.................... 10/31/95
Philadelphia, PA.
05-95-078.......................... Norfolk, VA............... Special Local..................... 11/25/95
05-95-083.......................... Gibbstown, NJ............. Safety Zone....................... 12/5/95
07-95-063.......................... San Juan, PR.............. Special Local..................... 10/8/95
07-95-066.......................... San Juan, PR.............. Special Local..................... 10/22/95
07-95-070.......................... Pompano Beach, FL......... Special Local..................... 12/10/95
07-95-071.......................... Charleston, SC............ Safety Zone....................... 12/2/95
07-95-075.......................... Rada Fajardo, PR.......... Special Local..................... 12/16/95
08-95-025.......................... Clear Lake, TX............ Special Local..................... 12/9/95
13-95-046.......................... Benton, WA................ Safety Zone....................... 10/4/95
13-95-047.......................... Benton, WA................ Safety Zone....................... 10/12/95
13-95-048.......................... Queets, WA................ Safety Zone....................... 10/3/95
13-95-049.......................... Queets, WA................ Safety Zone....................... 10/11/95
13-95-052.......................... Benton, WA................ Safety Zone....................... 10/18/95
13-95-053.......................... Benton, WA................ Safety Zone....................... 10/26/95
13-95-054.......................... Queets, WA................ Safety Zone....................... 10/17/95
13-95-056.......................... Queets, WA................ Safety Zone....................... 10/24/95
13-95-057.......................... Seattle, WA............... Safety Zone....................... 12/20/95
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[[Page 7073]]
[FR Doc. 96-4277 Filed 2-23-96; 8:45 am]
BILLING CODE 4910-14-M
Complete official Federal Register PDF
FR Doc. 96-4263 Extended Overwater Operations With a Single Long-Range Communication System (LRCS) and a Single Long-Range Navigation System (LRNS)
[Federal Register Volume 61, Number 38 (Monday, February 26, 1996)]
[Rules and Regulations]
[Pages 7186-7191]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-4263]
[[Page 7185]]
_______________________________________________________________________
Part V
Department of Transportation
_______________________________________________________________________
Federal Aviation Administration
_______________________________________________________________________
14 CFR Part 1 et al.
Extending Overwater Operations With a Single Long-Range Communication
System and a Single Long-Range Navigation System; Final Rule
Federal Register / Vol. 61, No. 61 / Monday, February 26, 1996 /
Rules and Regulations
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[[Page 7186]]
DEPARTMENT OF TRANSPORTATION
Federal Aviation Administration
14 CFR Parts 1, 91, 121, 125, and 135
RIN 2120-AF12
[Docket No. 27474; Amendment No. 1-44, 91-249, 121-254, 125-25 and 135-
61]
Extended Overwater Operations With a Single Long-Range
Communication System (LRCS) and a Single Long-Range Navigation System
(LRNS)
AGENCY: Federal Aviation Administration (FAA), DOT.
ACTION: Final rule.
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SUMMARY: This action revises the Federal Aviation Regulations for
certain overwater operations for air carriers, commercial operators,
and general aviation operators of large and of turbine-powered
multiengine airplanes. It defines and clarifies requirements for using
long-range navigation systems (LRNS) and long-range communication
systems (LRCS) and sets forth criteria for navigation and communication
equipment for certain overwater operations. Under this rule, air
carriers and commercial operators are authorized to use a single LRCS
and a single LRNS for extended overwater routes detailed in their
operations specifications. Affected general aviation operators, who
already are authorized to use a single LRCS when they have two very
high frequency (VHF) communication systems, are authorized to use a
single LRNS in overwater operations in the Gulf of Mexico, the
Caribbean Sea, and part of the western Atlantic Ocean. This rule gives
the FAA greater flexibility in responding to advances in aviation
technology and changes in the operational environment and allows
operators to conduct extended overwater operations without carrying
unnecessary communication and navigation equipment.
EFFECTIVE DATE: February 26, 1996.
FOR FURTHER INFORMATION CONTACT:
Daniel V. Meier, Jr., Project Development Branch, AFS-240, Air
Transportation Division, Office of Flight Standards, Federal Aviation
Administration, 800 Independence Avenue, SW., Washington, DC 20591,
telephone (202) 267-3749.
SUPPLEMENTARY INFORMATION:
Background
Air traffic in the Gulf of Mexico, the Caribbean Sea, and part of
the western Atlantic Ocean (subsequently referred to in this document
as the geographic area) has increased substantially during the last 20
years. With this increase has come corresponding technological advances
inherent with more modern aircraft and improved navigation and
communications systems.
Advances in aircraft technology have increased the overall speed
and functional reliability of modern airplanes. These high-speed
airplanes can cover routes in the geographic area much more quickly
than their predecessors. Because of their higher speeds, they also can
cover greater distances during the time between hourly fixes. Thus, the
number of routes in the geographic area where time between reliable
fixes was 1 hour or more has been reduced for these airplanes.
Similarly, the airplane's exposure to the loss of its LRNS before the
next reliable fix can be obtained is reduced. Since such aircraft also
routinely operate at higher altitudes en route, they can conduct very
high frequency (VHF) communications at greater ranges from their
corresponding ground facilities than their predecessors.
Advances in avionics have resulted in increasingly accurate and
dependable navigation systems, using inputs from Loran C, Omega/very
low frequency (VLF), inertial navigation, or reference systems (INS),
and, most recently, the global positioning satellite navigation system
(GPS). Each navigation system typically gives instantaneous readouts of
position, ground speed, wind, and waypoint progress. Radio
communication systems have enjoyed similar advances. Bulky vacuum tube
units have given way to miniaturized units with transistors, precise
frequency selection, and high reliability, which produce the same or
greater transmitting power than older models. In addition, the
proliferation of VHF communication facilities within the geographic
area ensures that many routes now can be flown with a VHF
communications gap of no more than 30 minutes.
The increased reliability of modern LRNS reduces navigation errors.
Sophisticated flight management systems (FMS) integrate control and
navigation systems of an airplane and combine several navigation inputs
to provide greater position reliability. The multiple navigation inputs
into an FMS increase the accuracy of the system, and its reliability
when compared to earlier navigation systems which only received a
single source input. If the LRNS fails on an airplane using such
sophisticated equipment, navigation errors inherent in dead-reckoning
procedures from the moment of the failure until the next reporting
point or fix should be well within the navigational performance
capability required for the route to be flown.
Just as navigation systems have experienced several enhancements,
ongoing developments in data link and satellite technology also have
resulted in enhanced communications. The airborne equipment that
aircraft use has improved due to advances in avionics reliability and
miniaturization. These smaller units mean less weight on board the
airplane.
The FAA believes that the probability that an airplane would
experience a failure of both its single long-range communications
system (LRCS) and its single LRNS when suitable navigation aids cannot
be received is minimal. Advanced technology notwithstanding, however, a
single LRCS could fail during a flight segment in which the airplane is
operated beyond the range of VHF radio communication equipment. Even if
such a failure did occur, the increased density of other air traffic in
the vicinity could provide the affected airplane with some backup VHF
communications with ATC. Moreover, regardless of the number of other
aircraft in the area, if the flightcrew adheres to proper operational
procedures, failure of the LRNS should not lead to an increased
potential for conflict between aircraft before the airplane could come
into range of suitable navigation aids (e.g. non-directional beacon,
very high frequency omnirange (VOR), etc.).
Because of the increased speeds and higher altitudes at which
airplanes now operate, improved equipment, improved reliability, and
greater accuracy of LRNS systems, the FAA has concluded that, where
exposure time for a critical equipment failure is 1 hour or less, the
following is true:
The probability of a failure is less than the probability
of a failure with less modern equipment;
With the accuracy of the present equipment, operators have
better knowledge of their position if a failure does occur.
All of the factors discussed above have brought about the need to
update the regulations to conform current technology to the types of
operations that are currently being authorized. Namely, the FAA has
found that operations in the geographic area can be conducted without
the burden of additional navigation and communication systems carried
in the aircraft. Therefore, on a case-by-case basis, and with certain
conditions and limitations, the FAA has allowed a number of operators
to conduct operations in the geographic area with a single LRCS and a
single LRNS. To
[[Page 7187]]
date, such operations have had no adverse effect on safety.
General Discussion of Current Requirements for Extended Overwater
Operations
General Aviation Operations
With one exception, set forth in Sec. 91.511(d), 14 Code of Federal
Regulations part 91, subpart F, the FAA currently requires large and
turbine-powered multiengine airplanes engaged in overwater operations
to be equipped with two independent communication and two independent
navigation systems. Communication equipment must be appropriate to the
facilities to be4 used and able to transmit to and receive from at
least one surface facility at any place on the route. Navigation
equipment must be able to provide the pilot with the information
necessary to navigate the airplane within the airspace assigned by ATC.
Under the exception in Sec. 91.511(d), if a route requires the use of
both VHF and LRCS communication equipment, and the airplane has two VHF
transmitters and two VHF receivers, then only one LRCS transmitter and
one LRCS receiver is required for communications.
Air Carrier and Commercial Operations
Parts 121, 125, and 135 also require airplanes engaged in extended
overwater operations to be equipped with two independent communication
and two independent navigation systems. Like part 91, parts 125 and 135
require that the communication equipment be appropriate to the
facilities to be used and capable of transmitting to and receiving from
at least one ground facility at any place on the route. Although the
regulatory language differs somewhat, part 121 contains essentially the
same requirements for communication equipment. Specifically, part 121
requires two independent communication systems able to communicate,
under normal operating conditions, with (1) at least one appropriate
ground station from any point on the route and with (2) appropriate
traffic control facilities from any point in the airspace within which
the flights are intended. These communication systems also must be able
to receive meteorological information from any point en route. Unlike
part 91, however, parts 121, 125, and 135 do not allow the use of a
single LRCS where the airplane is also equipped with two VHF radios or
systems. Thus, if a route requires use of both VHF and LRCS, airplanes
operating under parts 121, 125, and 135 must have two VHF radios and
two LRCS.
Section 121.349(b) allows for the use of a single automatic
direction finder (ADF) when two VOR navigation units are installed and
VOR navigation aids are so located and the airplane is so fueled that,
in the case of a failure of the ADF, the flight may proceed safely to a
suitable airport by means of VOR aids. In all other cases, when use of
ADF, VOR navigation equipment, or both, is needed for primary
navigation, the current rules for parts 121, 125, and 135 require the
airplane to be equipped with two ADF and two VOR navigation units, as
appropriate.
General Discussion of the Rule
The FAA is expanding, under certain conditions, the authority for
air carriers and commercial operators to amend their operations
specifications to use a single LRCS and a single LRNS. The FAA has
determined that, for the time being, the authority will be limited to
the geographic area. This limitation is based primarily on the ready
availability of navigation and communication facilities within the
geographic area, which provide a crucial buffer in the event of a
communication or navigation failure. In appropriate circumstances, the
FAA may expand the areas in which operations with a single LRCS and a
single LRNS will be permitted for part 121, 125, and 135 operators.
Aside from the current authority set forth in Secs. 91.511(d) and
121.349(b), this rule does not change the general requirements under
parts 91, 121, 125, and 135 for two VHF communication systems and two
each of any appropriate navigation systems required for the route to be
flown except in the geographic area. The FAA has concluded that, by
maintaining these requirements, air transportation safety is not
compromised.
The FAA is amending part 91 and creating operation specification
authority for operators under parts 121, 125, and 135 based on the
factors mentioned above and on the operator's ability to maintain two-
way communications with ATC and, where appropriate, the certificate
holder's dispatch office. Without such factors, ATC's ability to
control airplanes in the geographic area would be adversely impacted,
increasing the potential for air traffic conflicts. The flightcrew must
be able to notify ATC of an LRNS failure and must be able to tell ATC
whether the flightcrew can reliably fix the airplane's position using
other means.
Part 91
As a result of changes in technology, the operational environment
described, and experience gained with exemptions allowing a single
LRNS, the FAA has concluded that part 91 operators of large and of
turbojet multiengine airplanes should be able to operate safely with a
single LRCS and a single LRNS in the geographic area. In conducting
operations in the geographic area, these general aviation operators
should consider how long they may be without two-way VHF
communications. For flight planning purposes, the FAA recommends that
this gap should not exceed 30 minutes. The operator also should
consider whether the position of the airplane can be reliably fixed at
least once each hour if the LRNS fails.
Parts 121, 125, and 135
The FAA believes that the only appropriate method for authorizing
single LRCS/single LRNS operations for part 121, 125, and 135
certificate holders is through FAA-approved authorizations, which will
be set forth in the certificate holder's operations specifications.
This method of approval is necessary because it will provide both the
FAA and the certificate holder greater flexibility in dealing with
varied equipment configurations, possible reclassification of airspace
operating areas, changes in navigational requirements, and changes in
air traffic separation standards.
The FAA has authorized these operations in the past and has
determined that controlling a VHF communication gap through operations
specifications will provide an equivalent level of safety. Loss of the
single LRNS still requires each operator to reliably fix the airplane's
position at least once each hour if the flight is continued and to
navigate within the required degree of accuracy over any authorized
route.
Definition of LRNS and LRCS
In the proposal, the FAA defined an LRNS as an electronic
navigation unit that is approved for use under instrument flight rules
(IFR) as a primary means of navigation and has at least one source of
navigational input, such as INS, Omega/very low frequency, and Loran C.
In this definition, the FAA did not limit the scope of acceptable LRNS
to radio-based or ground-based systems. Such nonradio, nonground-based
systems as INS are included within the scope of acceptable alternatives
as long as the system chosen has been approved for use under IFR. If
approved, GPS or similar
[[Page 7188]]
navigation systems also could fall within this definition. Where ADF or
VOR radio navigation is impractical or unusable, the FAA interprets the
current regulations to require the airplane to be equipped with two
LRNS for extended overwater operations. This final rule changes this
dual LRNS requirement. For parts 121, 125, and 135, authorization for a
single LRNS and a single LRCS will be approved in the certificate
holder's operations specifications. Since affected part 91 operators do
not use operations specifications, they would be authorized to use a
single LRNS, but only in the geographic area.
Although not defined in the proposal, the FAA has determined that,
for clarity, LRCS, like LRNS, should be defined in the final rule. The
FAA defines an LRCS as a long-range communication system that uses
satellite relay, data link, high frequency, or other approved
communication system which extends beyond line of sight. The FAA also
has determined that the definitions for LRNS and LRCS would be better
placed in part 1, Definitions and Abbreviations, for easy reference of
all affected operators and to avoid the redundancy of repeating the
definitions in all affected parts. Therefore, the definitions for LRCS
and LRNS will be added to Sec. 1.1, General definitions. These
definitions will be added to this section, in appropriate alphabetical
order, following the currently listed definition of ``load factor.''
Conditions and Limitations for All Operators
Because part 91 operators are not required to have operations
specifications, this rule limits general aviation single LRNS
operations to the geographic area. The areas of operation covered in
this rule for affected general aviation operators include the Gulf of
Mexico, the Caribbean Sea, and the Atlantic Ocean west of a line which
extends from 44 deg.47'00'' N / 67 deg.00'00'' W to 39 deg.00'00'N /
67 deg.00'00''W to 38 deg.30'00''N /60 deg.00'00'' W south along the
60 deg.00'00'' W longitude line to the point where the line intersects
with the northern coast of South America. This geographic area does not
include the North Atlantic Minimum Navigational Performance
Specifications (NAT/MNPS) airspace, where operations are governed by
Sec. 91.705 and appendix C to part 91.
Limitations for air carrier and commercial operations will be set
forth in the certificate holders' operations specifications. As in the
case of general aviation operations, the area of operation for air
carrier and commercial operators will not include NAT/MNPS airspace. At
a minimum, these operators must always comply with International Civil
Aviation Organization (ICAO) requirements for the area of operations.
Discussion of Comments
On October 5, 1993, the FAA published a notice proposing to allow
extended overwater operations with single LRCS and single LRNS (58 FR
51938). The FAA received six comments on the proposal. The National
Business Aircraft Association, Inc. (NBAA), the Aircraft Owners and
Pilots Association (AOPA), and the Air Transport Association (ATA)
expressed support with recommendations. Northwest Airlines expressed
neither support nor opposition but did provide a recommendation. The
Boeing Commercial Airplane Group acknowledged the proposal but had ``no
comment'' and an aviation consulting firm was opposed to the proposal.
These comments are discussed as follows:
NBAA
The NBAA indicated that it ``strongly supports'' the proposed
changes to allow single LRNS and LRCS. It recommended, however, that
proposed Sec. 121.99 be incorporated into parts 91, 125, and 135 since
these parts also require the latitude to access new technology
communication links without being tied solely to HF.
FAA response: This rule is intended to affect use of LRNS and LRCS
for extended overwater operations. The FAA recognizes that additional
updates to the rules are needed in view of advances in technology, such
as GPS. Such changes will be addressed in future rulemaking
initiatives.
AOPA
AOPA supported the proposal and recommended that the requirement
for an LRCS be eliminated entirely for certain aircraft in flight
conditions where no more than a 30-minute gap in two-way communications
exists. AOPA supported its recommendation by stating that LRCS
equipment is cumbersome and expensive. According to the commentor, LRCS
equipment is often adversely affected by precipitation and other
weather conditions. Further, in overwater areas, pilots relay
transmissions to ATC through other aircraft and do not depend on their
LRCS.
FAA response: The FAA acknowledges that an LRCS has some
disadvantages; however, these disadvantages are offset by the necessity
for communications when an airplane is operating in extended overwater
beyond the range of VHF ground-based communications. While airplanes
operating in accordance with Sec. 91.511 are not involved in the
carriage of persons or cargo for compensation or hire, these airplanes
nevertheless share airspace in the geographic area with air carriers
which are engaged in transporting passengers and cargo. Therefore, the
FAA considers it necessary for safety that all aircraft operating in
the geographic area be able to communicate with ATC at all times.
ATA
The ATA supported the proposal indicating that it would provide
administrative and economic relief from an unnecessary regulatory
burden. Apparently in reference to the 15-day comment period however,
the commentor noted that, in future proposals, the FAA must abide by
the requirements of the Administrative Procedures Act (APA). Northwest
echoed this comment regarding the APA.
FAA response: In allotting the 15-day comment period, the FAA was
responding to the large number of requests for relief from the aviation
industry. The FAA considered it to be in the best interest of safety
and the public to expedite the regulation by every means possible. The
FAA did not violate any requirements of the APA, which does not require
specific comment periods for rulemaking.
Northwest Airlines
Northwest Airlines suggested that the proposed rule be amended to
allow operations in NAT/MNPS airspace for flights to and from SLATIN
along or west of A632. According to the commentor, the area of NAT/MNPS
airspace traversed by A632 is within VHF coverage except for an area of
non-coverage located on either side of the mid point of A632 between
Bermuda and the mainland of the U.S. The commentor asserted that this
non-coverage area can be traversed within 6 minutes. Northwest further
indicated that extending the boundary of the area below 27 deg.00'00''
N from longitude 60 deg.00'00'' W, would include the island of Barbados
and thereby preclude any confusion regarding coverage of the total
Caribbean island chain. Lastly, Northwest indicated that the
coordinates describing operations under part 91 do not have the same
boundaries as defined by part 91, appendix C. According to the
commentor, this presents confusion to ATC with respect to the different
requirements for air carrier and general aviation operations.
[[Page 7189]]
FAA response: The route from SLATIN along A632 to approximate
38 deg.30'00'' N and 67 deg.30'00'' W is NAT/MNPS airspace and, as
such, is governed by ICAO agreements which require redundant navigation
and communication systems. It is not within the scope (authority) of
this rule to alter those agreements. This airspace represents an
extremely small part of the total geographic area considered in this
rule and can be crossed in 6 minutes by a turbine-powered air transport
category airplane. Airlines may operate through this airspace with one
LRNS and one LRCS provided they obtain a letter of agreement with ATC.
These operations have been successful in the past and the FAA does not
consider it to be in the public interest for the U.S. government to
file a difference with ICAO.
The boundaries defined in the rule represent a general oceanic
area, outside NAT/MNPS airspace, in which a single LRNS and single LRCS
may be used when an airplane is unable to navigate by reference to
standard ICAO navigational aids such as VOR or ADF. The location of the
island of Barbados outside the western boundary of the geographic area
does not exclude it from operations conducted under this regulation
since VOR coverage extends well into the geographic area.
The commentor's concern regarding possible conflict between the
requirements of part 91, appendix C and the boundaries of the
geographic area of the rule is unfounded. Part 91, appendix C refers to
operations within NAT/MNPS airspace whereas the regulation limits
operation to airspace outside NAT/MNPS airspace.
Aviation Consulting Firm
George Rabe & Associates, the aviation consulting firm opposed to
the proposal indicated that some of the more modern communication and
navigation systems are an improvement; however, some are not.
Nonetheless, according to the commentor, since smaller airlines cannot
afford to purchase the more expensive communication and navigation
systems, they do not have the luxury of operating with enhanced
accuracy and reliability provided by the more sophisticated systems.
This commentor stated that the economic arguments of the proposal are
not justified given that GPS is expected to bring down costs and that
some operators will still conduct operations requiring the use of dual
LRNS and LRCS. Moreover, according to this commentor, increased air
traffic and reduced separation standards should bring forth a
requirement for improved navigation safety not a reduction in safety
standards. Indicating that errors are not mechanical but human, this
commentor recommended maintaining the requirement for dual LRNS and
LRCS and also improving training requirements.
FAA response: The FAA realizes that cost differences exist among
LRNS and LRCS equipment and that there may be some differences in
accuracy; however, all equipment used for operations under this rule
must meet certain standards of approval established by the FAA. These
standards serve to assure that an acceptable level of safety is
maintained regardless of the cost and availability of the equipment.
The safe operation of LRNS and LRCS is a part of the operators'
approved training program and is assured by FAA inspection and
surveillance. Knowing that mistakes in navigation occasionally will be
made, the FAA established certain operational factors in the rule to
minimize any potential threat to safety which may result from potential
errors.
One of the major factors considered in this rule is the question of
economic burden to the air transportation industry. The FAA believes
that this rule will relieve the airlines of a significant cost burden.
If GPS LRNS units, and subsequently approved operations, present a cost
savings above other, more prevalent, systems in use today, the FAA
would certainly favor such a potential.
Economic Summary
This final rule reduces costs to operators by eliminating the
requirements for two LRCS and two LRNS in the Gulf of Mexico, part of
the western Atlantic Ocean, and the Caribbean Sea (the geographic
area). Savings will come from reduced avionics costs, reduced fuel
consumption from less aircraft weight, and reduced risk of flight
cancellations due to inoperative equipment.
The FAA estimates the fleet size operating in the geographic area
will be approximately 158 airplanes in 1995. The FAA assumes that the
size of the fleet serving the geographic area will grow by 5.5 percent
annually over the 10-year period, 1995-2004. Although the fleet
composition varies from jumbo jets to smaller twin-engine turboprop
planes, commercial operators most often use Boeing 727's in the
geographic area. In addition to the scheduled commercial fleet, general
aviation and non-commercial operators operating in the geographic area
will gain some relief from this rule as well. The FAA, however, does
not have an accurate measure of the size of the fleet operating in the
geographic area.
Each commercial operator will save approximately $17,000 per
airplane in equipment costs and will reduce aircraft weight 20 pounds
per airplane by eliminating one LRCS; each commercial operator will
save about $36,000 per airplane in equipment costs and will reduce
aircraft weight 20 pounds per airplane by eliminating one LRNS. For
existing airplanes with equipment made redundant by this rule, the
resulting avionics cost savings will total about $53,000 per converted
airplane. The FAA also estimates that each additional pound on an
airplane costs an operator an additional 15 gallons of fuel annually.
Assuming a converted airplane removes two 20-pound pieces of equipment,
the reduction in weight will save 600 gallons of fuel each year. Using
a 1993 average jet fuel price of $.675 per gallon, the reduction in
weight of 600 gallons of fuel per year will result in annual savings
totaling over $400 per converted airplane.
Additional savings from the rule will also come from reduced flight
cancellations as operators experience fewer equipment failures as a
result of the reduced equipment requirements. Cost reduction resulting
from the prevention of a cancellation depends on passenger time,
passenger handling costs, lost revenue, and operating costs. The
approximate cost of a Boeing 727 cancellation is estimated to equal
just over $28,000. The FAA, however, does not have an accurate estimate
for the number of flight cancellations attributable to non-functioning
LRCS or LRNS for airplanes operating in the geographic area from which
to estimate the total cost savings resulting from reduced
cancellations.
The FAA assumes that 50 percent of the commercial fleet serving the
geographic area will reduce the equipment in its airplanes to only one
LRCS and one LRNS, and that this conversion will occur during the first
2 years after implementation of the rule. Thereafter, the FAA assumes
that one-half the airplanes added to the commercial fleet will be
placed in service with only one LRCS and one LRNS. The FAA further
assumes that the savings resulting from reduced fuel expenditure
applies to the equipment conversion of 50 percent of the fleet
converting to a single LRCS and a single LRNS.
In each of the first 2 years after the rule becomes effective, the
industry will reduce avionics costs by over $2 million. Over the decade
1995-2004, the total savings in 1993 dollars for reduced avionics
requirements will exceed $6.7
[[Page 7190]]
million. The fuel savings resulting from airplane weight reduction will
add another $389,000 in reduced costs, bringing the total cost savings
in 1993 dollars for this final rule to more than $7.1 million. The net
discounted savings for the decade 1995-2004, will total just over $5.7
million.
The FAA has determined that no safety problem exists with the
reduction in requirements for dual LRCS and dual LRNS for certain
overwater operations. In the past two decades, the FAA has granted
limited exemption from the requirements for dual LRCS and LRNS to
certain qualified operators operating in the geographic area. No
airplane operating under exemption has had an accident which can be
attributed to having only one LRCS or one LRNS. During that time, the
accuracy and reliability of navigation equipment has continuously
improved. Thus, the FAA believes that this rule presents no degradation
in aviation safety in the geographic area.
International Trade Impact Analysis
Domestic air carriers will receive a negligible cost reduction, but
there will be no impact on foreign operators. Hence, this rule will
have no effect on the sale of foreign aviation products or services in
the U.S. or on the sale of U.S. products or services in foreign
countries.
Regulatory Flexibility Determination
The Regulatory Flexibility Act of 1980 (RFA) ensures that
government regulations do not needlessly and disproportionately burden
small businesses. The RFA requires the FAA to review each rule that may
have ``a significant economic impact on a substantial number of small
entities.''
FAA criteria define ``a substantial number'' as not less than
eleven nor more than one-third of the small entities subject to the
rule. Among air carriers, a small entity is defined as one which owns,
but does not necessarily operate, nine or fewer aircraft. The criteria
define ``a significant impact'' as follows: $102,000 for scheduled air
carriers with 60 or more seats; $57,000 for scheduled air carriers with
fewer than 60 seats.
This amendment is wholly cost relieving. By eliminating the need
for two LRCS and LRNS in the geographic area, the estimated cost
savings to an operator is $53,000. This savings is less than the
threshold amount for small, scheduled operators.
Federalism Implications
The regulations adopted herein will not have substantial direct
effects on the States, on the relationship between the national
government and the States, or on the distribution of power and
responsibilities among the various levels of government. Therefore, in
accordance with Executive Order 12612, it is determined that this rule
would not have federalism implications requiring the preparation of a
Federalism Assessment.
International Civil Aviation Organization and Joint Aviation
Regulations
In keeping with U.S. obligations under the Convention on
International Civil Aviation, it is FAA policy to comply with ICAO
Standards and Recommended Practices (SARP) to the maximum extent
practicable. For this amendment, the FAA has reviewed the SARP of Annex
6, Parts I and II, applicable to international commercial air
transportation operations and international general aviation operations
respectively. The FAA has determined that this rule would not present
any differences.
Paperwork Reduction Act
This rule contains no information collection requests requiring
approval of the Office of Management and Budget pursuant to the
Paperwork Reduction Act (44 U.S.C. 3507 et seq.).
Conclusion
For the reasons discussed in the preamble, and based on the
findings in the Regulatory Flexibility Determination and the
International Trade Impact Statement, the FAA has determined that this
regulation is not significant under Executive Order 12866. In addition,
it is certified that this rule will not have a significant economic
impact, positive or negative, on a substantial number of small entities
under the criteria of the Regulatory Flexibility Act. This rule is not
significant under DOT Regulatory Policies and Procedures (44 FR 11034;
February 26, 1979).
List of Subjects
14 CFR Part 1
Air Transportation.
14 CFR Part 91
Aircraft, Airmen, Airports, Air traffic control, Aviation safety.
14 CFR Part 121
Air Carriers, Aircraft, Airmen.
14 CFR Part 125
Aircraft, Airmen, Aviation safety.
14 CFR Part 135
Air taxis, Aircraft, Airmen, Aviation safety.
The Amendment
In consideration of the foregoing, the Federal Aviation
Administration amends 14 CFR parts 1, 91, 121, 125, and 135 as follows:
PART 1--DEFINITIONS AND ABBREVIATIONS
1. The authority citation for part 1 is revised to read as follows:
Authority: 49 U.S.C. 106(g), 40113, 44701.
2. Section 1.1 is amended by adding the following definitions:
Sec. 1.1 General definitions.
* * * * *
Long-range communication system (LRCS). A system that uses
satellite relay, data link, high frequency, or another approved
communication system which extends beyond line of sight.
Long-range navigation system (LRNS). An electronic navigation unit
that is approved for use under instrument flight rules as a primary
means of navigation, and has at least one source of navigational input,
such as inertial navigation system, global positioning system, Omega/
very low frequency, or Loran C.
* * * * *
PART 91--AIR TRAFFIC AND GENERAL OPERATING RULES
3. The authority citation for part 91 is revised to read as
follows:
Authority: 49 U.S.C. 106(g), 1155, 40103, 40113, 40120, 44101,
44111, 44701, 44709, 44711, 44712, 44715, 44716, 44717, 44722,
46306, 46315, 46316, 46504, 46506-46507, 47122, 47508, 47528-47531,
articles 12 and 29 of the Convention on International Civil Aviation
(61 stat. 1180).
4. In Sec. 91.11, paragraph (a) introductory text is amended by
removing ``paragraphs (c) and (d)'' and by adding ``paragraphs (c),
(d), and (f)'', in its place and new paragraph (f) is added to read as
follows:
Sec. 91.511 Radio equipment for overwater operations.
* * * * *
(f) Notwithstanding the requirements in paragraph (a)(2) of this
section, a person may operate in the Gulf of Mexico, the Caribbean Sea,
and the Atlantic Ocean west of a line which extends from 44 deg.47'00''
N / 67 deg.00'00'' W to 39 deg.00'00'' N / 67 deg.00'00'' W to
38 deg.30'00'' N / 60 deg.00'00'' W south along the 60 deg.00'00'' W
longitude line to the point where the line intersects with the northern
coast of South America, when:
[[Page 7191]]
(1) A single long-range navigation system is installed,
operational, and appropriate for the route; and
(2) Flight conditions and the aircraft's capabilities are such that
no more than a 30-minute gap in two-way radio very high frequency
communications is expected to exist.
PART 121--CERTIFICATION AND OPERATIONS: DOMESTIC, FLAG, AND
SUPPLEMENTAL AIR CARRIERS AND COMMERCIAL OPERATORS OF LARGE
AIRCRAFT
5. The authority citation for part 121 continues to read as
follows:
Authority: 49 U.S.C. 106(g), 40101, 40105, 40113, 44701-44702,
and 44704-44705.
6. The first sentence of Sec. 121.99 is revised to read as follows:
Sec. 121.99 Communication facilities.
Each domestic and flag air carrier must show that a two-way radio
communication system is available at points that will ensure reliable
and rapid communications, under normal operating conditions over the
entire route (either direct or via approved point-to-point circuits)
between each airplane and the appropriate dispatch office, and between
each airplane and the appropriate air traffic control unit except as
specified in Sec. 121.351(c). * * *
7. Section 121.351 is amended by revising paragraph (a) and adding
new paragraph (c) to read as follows:
Sec. 121.351 Radio and navigation equipment for extended overwater
operations and for certain other operations.
(a) Except as provided in paragraph (c) of this section, no person
may conduct an extended overwater operation unless the airplane is
equipped with the radio communication equipment necessary to comply
with Sec. 121.349, an independent system that complies with
Sec. 121.347 (a)(1), and two long-range navigation systems when VOR or
ADF radio navigation equipment is unusable along a portion of the
route.
(b) * * *
(c) Notwithstanding the requirements of paragraph (a) of this
section, installation and use of a single LRNS and a single LRCS may be
authorized by the Administrator and approved in the certificate
holder's operations specifications for operations and routes in certain
geographic areas. The following are among the operational factors the
Administrator may consider in granting an authorization:
(1) The ability of the flightcrew to reliably fix the position of
the airplane within the degree of accuracy required by ATC,
(2) The length of the route being flown, and
(3) The duration of the very high frequency communications gap.
PART 125--CERTIFICATION AND OPERATIONS: AIRPLANES HAVING A SEATING
CAPACITY OF 20 OR MORE PASSENGERS OR A MAXIMUM PAYLOAD CAPACITY OF
6,000 POUNDS OR MORE
8. The authority citation for part 125 continues to read as
follows:
Authority: 49 U.S.C. 106(g), 1153, 40104, 40105, 44113, 44701-
44705, 44707-44714, 44716-44717, 44722.
9. Section 125.203 is amended by adding the phrase ``Except as
provided in paragraph (e) of this section,'' at the beginning of the
first sentence of paragraph (c) introductory text and adding a new
paragraph (e) to read as follows:
Sec. 125.203 Radio and navigation equipment.
* * * * *
(e) Notwithstanding the requirements of paragraph (c) of this
section, installation and use of a single long-range navigation system
and a single long-range communication system for extended overwater
operations in certain geographic areas may be authorized by the
Administrator and approved in the certificate holder's operations
specifications. The following are among the operational factors the
Administrator may consider in granting an authorization:
(1) The ability of the flightcrew to reliably fix the position of
the airplane within the degree of accuracy required by ATC,
(2) The length of the route being flown, and
(3) The duration of the very high frequency communications gap.
PART 135--AIR TAXI OPERATORS AND COMMERCIAL OPERATORS
10. The authority citation for part 135 continues to read as
follows:
Authority: 49 U.S.C. 106(g), 1153, 40101, 40105, 44113, 44701-
44705, 44707-44717, 44722, and 45303.
11. Section 135.165 is amended by adding a new paragraph (d) to
read as follows:
Sec. 135.165 Radio and navigation equipment: Extended overwater or IFR
operations.
* * * * *
(d) Notwithstanding the requirements of paragraphs (a) and (b) of
this section, installation and use of a single long-range navigation
system and a single long-range communication system, for extended
overwater operations, may be authorized by the Administrator and
approved in the certificate holder's operations specifications. The
following are among the operational factors the Administrator may
consider in granting an authorization:
(1) The ability of the flightcrew to reliably fix the position of
the airplane within the degree of accuracy required by ATC,
(2) The length of the route being flown, and
(3) The duration of the very high frequency communications gap.
Issued in Washington, D.C., on February 20, 1996.
David R. Hinson,
Administrator.
[FR Doc. 96-4263 Filed 2-23-96; 8:45 am]
BILLING CODE 4910-13-M
Complete official Federal Register PDF
FR Doc. 96-4255 Clean Air Act Final Full Approval of Operating Permits Program: The Commonwealth of Puerto Rico
[Federal Register Volume 61, Number 38 (Monday, February 26, 1996)]
[Rules and Regulations]
[Pages 7073-7076]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-4255]
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 70
[PR001; FRL-5428-8]
Clean Air Act Final Full Approval of Operating Permits Program:
The Commonwealth of Puerto Rico
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final full approval.
-----------------------------------------------------------------------
SUMMARY: The EPA is promulgating full approval of the operating permits
program submitted by the Commonwealth of Puerto Rico for the purpose of
complying with Federal requirements which mandate that States develop,
and submit to EPA, programs for issuing operating permits to all major
stationary sources, and to certain other sources.
EFFECTIVE DATE: This action is effective March 27, 1996.
ADDRESSES: Copies of the State's submittal and other supporting
information used in developing the final full approval as well as the
Technical Support Document are available for inspection during normal
business hours at the following locations:
EPA Region II, 290 Broadway, 21st Floor, New York, New York 10007-1866,
Attention: Steven C. Riva.
EPA Region II, Caribbean Field Office, Centro Europa Building, Suite
417, 1492 Ponce de Leon Avenue, Stop 22, San Juan, Puerto Rico 00907-
4127, Attention: Jose Ivan Guzman.
Puerto Rico Environmental Quality Board, Air Programs Area, Eurobank
Building, 431 Ponce de Leon Avenue, Hato Rey, PR 00910, Attention:
Francisco Claudio.
FOR FURTHER INFORMATION CONTACT: Christine Fazio, Permitting and Toxics
Support Section, at the above EPA office in New York or at telephone
number (212) 637-4015. Jose Ivan Guzman of the Caribbean Field Office
can be reached at (809) 729-6951, extension 223.
SUPPLEMENTARY INFORMATION:
I. Background and Purpose
Title V of the Clean Air Act (``the Act''), and implementing
regulations at 40 Code of Federal Regulations (CFR) part 70 require
that States develop and submit operating permits programs to the EPA by
November 15, 1993, and that the EPA act to approve or disapprove each
program within one year after receiving the submittal. The EPA's
program review occurs pursuant to section 502 of the Act and the part
70 regulations, which together outline criteria for approval or
disapproval. If a state does not have an approved program by two years
after the November 15, 1993 date, EPA must establish and implement a
Federal program.
On November 14, 1995, the EPA proposed full approval of the
Operating Permits Program submitted for Puerto Rico. (See 60 FR 57204).
Two comment letters were received on the Proposed Approval Notice. None
of the comments regarded EPA's proposed approval of Puerto Rico's Title
V program; in fact, both commenters supported EPA's proposed full
approval. The comments,
[[Page 7074]]
however, deal with implementation of the program and EPA's responses
are below. In this notice, the EPA is taking final action to promulgate
full approval of the Operating Permits Program for Puerto Rico.
II. Final Action and Implications
A. Analysis of State Submission
On November 14, 1995, the EPA proposed full approval of PREQB's
Title V Operating Permits Program. The program elements discussed in
the proposed notice are unchanged from the analysis in the Full
Approval Notice and continue to fully meet the requirements of 40 CFR
part 70.
B. Response to Public Comments
1. Comment by Eli Lilly and Company
Eli Lilly and Company (Lilly) asked EPA to clarify that the terms
``modifications under any provision of Title I of the Act'' and ``case
by case determination'' as they appear in Puerto Rico's Title V
regulation (Part VI of the Regulation for the Control of Atmospheric
Pollution (RCAP)) do not include minor new source review requirements.
As stated by Lilly, in both a June 20, 1995 letter from Mary Nichols,
Assistant Administrator for Air and Radiation, to members of Congress
and a November 7, 1995 letter from Lydia Wegman, Deputy Director of the
Office of Air Quality Planning and Standards, to William Becker of
STAPPA/ALAPCO, the EPA has clarified that EPA's current interpretation
of Title I modification does not include modifications subject to minor
new source review. While the Puerto Rico Environmental Quality Board
(PREQB) did not define Title I modification in its regulation, by
letter dated January 24, 1996, PREQB confirmed that it plans to follow
EPA's current interpretation of Title I modification. PREQB, therefore,
does not consider modifications subject to its minor new source review
program to be Title I modifications. Accordingly, under Puerto Rico's
Title V program, changes subject to minor new source review can be
processed following minor modification procedures (See RCAP Rule
606(b)(2)) and are eligible for the operational flexibility provisions
of RCAP Rule 607 provided the changes meet the other eligibility
criteria of RCAP Rules 606(b)(2) and 607.
2. Comment by the Puerto Rico Manufacturer's Association
The Puerto Rico Manufacturer's Association (PRMA) raised several
questions regarding implementation of the Title V program.
a. The PRMA requested that PREQB adopt EPA's July 10, 1995 ``White
Paper for Streamlined Development of Part 70 Permit Applications''
(``White Paper'') as part of the Title V approval process in order to
provide sources a clear and duly notified directive and to avoid random
application of the White Paper. PRMA requested that EPA Region II
assist PREQB in the implementation of Puerto Rico's Title V program
consistent with the White Paper guidelines.
Although EPA encourages states to implement the White Paper, EPA
does not require a state to adopt the White Paper as part of EPA's
program approval. The White Paper was drafted as guidance and,
therefore, cannot be relied upon to create any rights enforceable by
any party. Nevertheless, PREQB has ``adopted'' the White Paper. In
other words, PREQB has included the White Paper as part of its Title V
docket and has committed, at least during the early phases of program
implementation, to follow all the guidelines of the White Paper. The
EPA does agree with the commenter that EPA should work with Puerto Rico
on the implementation of the Program consistent with the White Paper
and EPA will work closely with PREQB (as well as the PRMA) on this
streamlined implementation.
b. The PRMA proposed that the current state operating permits which
Title V applicants are complying with (issued under RCAP Rule 204) be
presumptively defined to incorporate new source review (NSR) permit
terms and conditions. Because PREQB often revises the operating permit
without first reviewing the terms of the corresponding preconstruction
permit, this practice has resulted in operating permits with terms and
conditions which supersede and render obsolete the original
preconstruction permits. In addition, searching for the old NSR permits
would be extremely burdensome to both PREQB and the applicant.
The EPA agrees that for minor NSR requirements, applicants and
PREQB can use the existing state operating permits in lieu of minor NSR
permits in defining the applicable requirements under minor New Source
Review. PREQB's practice is that the minor NSR permit expires after one
year and all conditions roll into the operating permit, and then only
the operating permit conditions are revised as a result of plant
modifications. Therefore, it would be impractical to require applicants
to use only minor NSR permits, instead of the operating permits, as the
basis for determining their applicable requirements. EPA supports
PRMA's suggestion and has stated on page 15 of the White Paper: ``Where
a permitting authority has already converted the NSR permit into an
existing State operating permit before incorporation into the part 70
permit, the terms of the current permit to operate will presumptively
define how NSR permit terms should be incorporated into part 70
permits.'' However, this flexibility does not necessarily apply to
Major NSR and PSD or to minor NSR permits which were used in a final
PSD non-applicability determination. First, if there are
inconsistencies between the source's operating permit and a Major NSR
or PSD permit, the conditions in the NSR or PSD permit take precedence
and must be included as an applicable requirement in the source's Title
V application. Second, the flexibility to use the state operating
permit in lieu of the minor NSR permit to define the applicable
requirement when the minor NSR permit was used in a final PSD non-
applicability determination will be decided on a case by case basis.
c. The PRMA suggested that current operating permit terms that are
environmentally insignificant and irrelevant and are not required under
federal laws or regulations or under federally enforceable conditions
of the RCAP (``the SIP'') should be considered as appropriate
exclusions from part 70 permits (or could remain on the state-only side
of part 70 permits). PRMA also suggested that current operating permit
conditions that do not implement federal regulatory requirements and
objectives, or that may have been provided in good faith by sources in
permit applications, are also good candidates for exclusion from part
70 permits.
As correctly cited by PRMA, the White Paper states that NSR permit
terms (or operating permit terms if being used in lieu of a minor NSR
permit) that are obsolete, extraneous, environmentally insignificant or
otherwise not required by the SIP or a federally enforceable NSR
program need not be incorporated into part 70 permits. The White Paper
also explains and provides examples of the above types of permit
conditions. For instance, NSR terms regulating construction activity
during the building or modification of a source, where the construction
is long completed and the statute of limitations on construction-phase
activities has run out, may no longer be necessary for inclusion in a
part 70 permit. Another example of information that may not need to be
incorporated into a part 70 permit is information incorporated by
reference from an application for a
[[Page 7075]]
preconstruction permit, as long as this information is not needed to
enforce NSR permit terms. The White Paper states that sources as part
of their Title V application could propose which conditions of the
minor NSR permit (or operating permit if being used in lieu of minor
NSR permit) should be considered for revision, deletion or state-only
status. PREQB could then agree or disagree with the suggestions while
reviewing and drafting the permit (note: this process could be delayed
until the first renewal if necessary). PREQB as part of its issuance of
the part 70 permit (including the public participation process) could
then simultaneously revise the minor NSR (or operating) permit. As a
note, EPA does not believe that most of Puerto Rico's operating permits
include irrelevant or extraneous terms. EPA believes there should only
be a few cases where the procedure discussed in the White Paper will
take place. Because most decisions will need to be made on a case by
case basis, EPA will work closely with PREQB on the issuance of these
permits. It should be noted that PSD permits are not minor NSR permits.
If any applicant believes their PSD permit contains extraneous
conditions, the applicant must request a revision of the PSD permit
from EPA (the permitting authority for PSD in Puerto Rico) before
excluding the condition from its Title V application.
d. The PRMA requested that certain rules of the RCAP which are
currently included as part of Puerto Rico's approved SIP be considered
state enforceable only as those rules are not necessary for Puerto
Rico's strategy to achieve and maintain compliance with the National
Ambient Air Quality Standards. The rules suggested for deletion include
Rule 404--Fugitive Emissions, Rule 411--Hydrogen Sulfide, Rule 418--
Waste Gas Disposal, Rule 419--Volatile Organic Compounds, Rule 420--
Objectionable Odors, Rule 421--Increment Of Progress, and Rule 424--
Roof Surface Coating.
With Puerto Rico's submittal of the revised RCAP for approval into
the SIP, Puerto Rico requested that the above rules be deleted from the
SIP. The EPA agrees that all the above rules except Rule 404 should be
state enforceable only. Rule 404 is required for compliance with Puerto
Rico's PM-10 SIP (See 60 FR 28333, May 31, 1995). EPA plans to delete
Rules 411, 418, 419, 420, and 421 from the SIP when EPA makes its final
SIP determination on the revised RCAP. Rule 424 on Roof Surface Coating
was never approved into the SIP and is currently state enforceable
only. In the meantime, while EPA processes Puerto Rico's regulation for
SIP approval, applicants can, for purpose of application completeness,
propose to address requirements of Rules 411, 418, 419, 420, and 421 as
state enforceable only. If requesting that the conditions of these 5
rules be state enforceable only, applicants should provide a notation
in their application which states ``pending deletion from the SIP''.
However, PREQB may not issue Title V permits with state enforceable
only conditions for these five rules until after EPA has approved
Puerto Rico's SIP revision. EPA will expedite the processing of this
SIP in order not to adversely impact Puerto Rico's schedule for issuing
permits.
C. Options for Approval/Disapproval
The EPA is promulgating full approval of the Operating Permits
Program submitted to the EPA by the PREQB on November 15, 1993 with
supplemental packages on March 22, 1994 and April 11, 1994 and a
revised regulation on September 29, 1995. Among other things, the PREQB
has demonstrated that the program will be adequate to meet the minimum
elements of a State operating permits program as specified in 40 CFR
part 70.
Requirements for approval, specified in 40 CFR Sec. 70.4(b),
encompass section 112(l)(5) requirements for approval of a program for
delegation of section 112 standards as promulgated by the EPA as they
apply to part 70 sources. Section 112(l)(5) requires that the State's
program contain adequate authorities, adequate resources for
implementation, an expeditious compliance schedule, and adequate
enforcement ability, which are also requirements under part 70. In a
letter dated December 29, 1994, PREQB requested delegation through
112(l) of all existing 112 standards and all future 112 standards for
both part 70 and non-part 70 sources and infrastructure programs. In
the letter, PREQB demonstrated that they have sufficient legal
authorities, adequate resources, the capability for automatic
delegation of future standards, and adequate enforcement ability for
implementation of section 112 of the Act for both part 70 sources and
non-part 70 sources. Therefore, the EPA is also promulgating full
approval under section 112(l)(5) and 40 CFR part 63.91 to Puerto Rico
for its program mechanism for receiving delegation of all existing and
future section 112(d) standards for both part 70 and non-part 70
sources, and section 112 infrastructure programs that are unchanged
from Federal rules as promulgated.
III. Administrative Requirements
A. Docket
Copies of the State's submittal and other information relied upon
for the final full approval, including the public comments received and
reviewed by EPA on the proposal, are contained in the docket maintained
at the EPA Regional Offices in New York and Puerto Rico and at PREQB.
The docket is an organized and complete file of all the information
submitted to, or otherwise considered by, EPA in the development of
this final full approval. The docket is available for public inspection
at the location listed under the ADDRESSES section of this document.
B. Executive Order 12866
The Office of Management and Budget has exempted this action from
Executive Order 12866 review.
C. Regulatory Flexibility Act
The EPA's actions under section 502 of the Act do not create any
new requirements, but simply address operating permits programs
submitted to satisfy the requirements of 40 CFR part 70. Because this
action does not impose any new requirements, it does not have a
significant impact on a substantial number of small entities.
D. Unfunded Mandates
Under Section 202 of the Unfunded Mandates Reform Act of 1995
(``Unfunded Mandates Act''), signed into law on March 22, 1995, the 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, the 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 of the Unfunded Mandates Act
requires the EPA to establish a plan for informing and advising any
small governments that may be significantly or uniquely impacted by the
rule.
The EPA has determined that the approval action promulgated today
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
approves pre-existing requirements under State or local law, and
imposes no new Federal requirements. Accordingly, no additional costs
to
[[Page 7076]]
State, local, or tribal governments, or to the private sector, result
from this action.
List of Subjects in 40 CFR Part 70
Environmental protection, Administrative practice and procedure,
Air pollution control, Intergovernmental relations, Operating permits,
Reporting and recordkeeping requirements.
Dated: February 6, 1996.
Jeanne M. Fox,
Regional Administrator.
40 CFR part 70 is amended as follows:
PART 70--[AMENDED]
1. The authority citation for part 70 continues to read as follows:
Authority: 42 U.S.C. 7401, et seq.
2. Appendix A to part 70 is amended by adding the entry for Puerto
Rico in alphabetical order to read as follows:
Appendix A to Part 70--Approval Status of State and Local Operating
Permits Programs
* * * * *
Puerto Rico
(a) The Puerto Rico Environmental Quality Board submitted an
operating permits program on November 15, 1993 with supplements on
March 22, 1994 and April 11, 1994 and revised on September 29, 1995;
full approval effective on March 27, 1996.
(b) [Reserved]
* * * * *
[FR Doc. 96-4255 Filed 2-23-96; 8:45 am]
BILLING CODE 6560-50-P
Complete official Federal Register PDF
FR Doc. 96-4251 Revocation of Anthraquinone Recordkeeping and Reporting Requirements
[Federal Register Volume 61, Number 38 (Monday, February 26, 1996)]
[Rules and Regulations]
[Pages 7076-7077]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-4251]
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 704
[OPPTS-82047; FRL-4982-7]
Revocation of Anthraquinone Recordkeeping and Reporting
Requirements
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: This document announces the revocation of the Toxic Substances
Control Act (TSCA) section 8(a) information gathering rule on
anthraquinone (CAS number 84-65-1), issued in the Federal Register of
June 4, 1987. Data, as developed under the first tier of testing of an
associated TSCA section 4 test rule (40 CFR 799.500), did not meet the
hazard triggers for the second tier of testing under that rule. Thus,
the section 8(a) reporting requirement, which has served as a mechanism
to gather production/import level information that provided the basis
for a production/import level trigger for the second tier of testing,
is no longer needed.
EFFECTIVE DATE: This final rule takes effect on February 26, 1996.
FOR FURTHER INFORMATION CONTACT: Susan B. Hazen, Director,
Environmental Assistance Division (7408), Office of Pollution
Prevention and Toxics, Environmental Protection Agency, 401 M St., SW.,
Washington, DC 20460, Telephone: (202) 554-1404, TDD: (202) 554-0551,
e-mail: TSCA-H[email protected].
SUPPLEMENTARY INFORMATION:
I. Regulatory History
On November 29, 1984 (49 FR 46931), the Interagency Testing
Committee (ITC) designated anthraquinone for priority testing
consideration and recommended chemical fate and ecological effects
testing. In response, EPA proposed a TSCA section 4 test rule and a
TSCA section 8(a) reporting and recordkeeping rule for anthraquinone
(50 FR 46090, November 6, 1985). These rules were finalized on June 4,
1987 (52 FR 21018), and codified at 40 CFR 799.500 and 704.30,
respectively.
Under section 4(a)(1)(B) of TSCA, EPA required tiered testing. The
first tier included: Water solubility; acute toxicity to chinook salmon
or coho salmon, bluegill, and rainbow trout; acute toxicity to the
invertebrates Daphnia magna or D. pulex and oyster; marine sediment
toxicity to the amphipod Rhepoxynius abronius; and oyster
bioconcentration. A second tier of testing would have been triggered if
the Tier I test results met certain criteria and if the information
reported under the section 8(a) rule indicated production/import volume
in excess of 3 million lbs/yr. The second tier of tests included:
Chronic toxicity in fish, chronic toxicity in Daphnia, biodegradability
in sludge systems, and biodegradation rate. In the section 8(a) rule,
EPA required that manufacturers (including importers) of anthraquinone
submit an annual report to EPA stating the volume of anthraquinone
manufactured or imported during their latest corporate fiscal year.
The last Tier I testing was submitted to EPA on August 21, 1989.
Results of the Tier 1 tests, as conducted, did not meet the hazard
triggers for Tier 2 testing, and Tier 2 testing was not triggered. The
anthraquinone test rule had a sunset date of August 21, 1994, and was
removed from the Code of Federal Regulations (CFR) by a final rule
issued on June 19, 1995 (60 FR 21917). Because requirements under the
test rule ended on August 21, 1994, there is no need for the continued
annual reporting of production and import volumes of anthraquinone
under 40 CFR 704.30.
II. Revocation of Anthraquinone Recordkeeping and Reporting
Requirements
EPA is revoking the section 8(a) recordkeeping and reporting
requirements at 40 CFR 704.30.
III. Analyses Under E.O. 12866, the Unfunded Mandates Act of 1995,
the Regulatory Flexibility Act, and the Paperwork Reduction Act
Because this action eliminates certain requirements, this action is
not significant within the meaning of Executive Order 12866 (58 FR
51735, October 4, 1993), and does not impose any Federal mandate on any
State, local, or tribal governments or the private sector within the
meaning of the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4).
For the same reasons, pursuant to the Regulatory Flexibility Act (5
U.S.C. 605(b)), it has been determined that this action will not have a
significant impact on a substantial number of small entities.
Additionally, because this rule eliminates reporting requirements, this
action does not affect requirements under the Paperwork Reduction Act,
44 U.S.C. 3501.
IV. Public Docket
A record has been established for this rulemaking under docket
number ``OPPTS-82047.'' A public version of this record, which does not
include any information claimed as confidential business information
(CBI), is available for inspection from 12 noon to 4 p.m., Monday
through Friday, excluding legal holidays. The public record is located
in the TSCA Nonconfidential Information Center, Rm. NE-B607, 401 M St.,
SW., Washington, DC.
List of Subjects in 40 CFR Part 704
Environmental protection, Chemicals, Hazardous substances,
Reporting and recordkeeping requirements.
Dated: January 31, 1996.
Lynn R. Goldman,
Assistant Administrator for Prevention, Pesticides and Toxic
Substances.
Therefore, 40 CFR chapter I is amended to read as follows:
PART 704--[AMENDED]
1. The authority citation for part 704 continues to read as
follows:
Authority: 15 U.S.C. 2607(a).
[[Page 7077]]
Sec. 704.30 [Removed]
2. Section 704.30 is removed.
[FR Doc. 96-4251 Filed 2-23-96; 8:45 am]
BILLING CODE 6560-50-F
Complete official Federal Register PDF
FR Doc. 96-4235 Coordination and Reporting of International Agreements: Determination Not To Publish Certain Agreements
[Federal Register Volume 61, Number 38 (Monday, February 26, 1996)]
[Rules and Regulations]
[Pages 7070-7071]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-4235]
-----------------------------------------------------------------------
DEPARTMENT OF STATE
Office of the Legal Adviser
22 CFR Part 181
[Public Notice 2344]
Coordination and Reporting of International Agreements:
Determination Not To Publish Certain Agreements
AGENCY: Department of State.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Department of State is issuing final regulations providing
that certain international agreements other than treaties will not be
published in United States Treaties and Other International Agreements
or in the Treaties and Other International Acts Series.
EFFECTIVE DATE: February 26, 1996.
ADDRESSES: Inquiries should be sent to the Assistant Legal Adviser for
Treaty Affairs, Office of the Legal Adviser, Department of State,
Washington, DC 20520.
FOR FURTHER INFORMATION CONTACT:
Karen Ghaffarkhan or Wynne Teel, Office of the Legal Adviser, (202)
647-2044.
SUPPLEMENTARY INFORMATION:
Background
In the Federal Register of October 23, 1995, the Department of
State proposed regulations to amend 22 CFR Part 181 to list categories
of international agreements that will not be published in
[[Page 7071]]
the United States Treaties and Other Agreements. No comments were
received on the proposed regulations. Accordingly, the Department
adopts the proposed regulations, effective immediately. Technical
corrections have been made in two areas of the regulations. The
authorities cited have been revised to reflect the replacement of 22
U.S.C. 2658 by 22 U.S.C. 2251a, as well as the codification of Public
Law 103-236. An incorrect reference in the authority for the
regulations as previously issued (22 U.S.C. 3312) has also been
deleted. In addition, the regulations' reference in Section 181.8(a)(9)
to Executive Order No. 12356 has been changed to Executive Order No.
12958, which currently governs classification of documents for national
security purposes. Further background on these regulations may be found
in the Department's notice of proposed regulations.
List of Subjects in 22 CFR Part 181
Treaties.
For the reasons set forth above, Part 181 is amended as follows:
1. The authority citation for Part 181 is revised to read:
Authority: 1 U.S.C. 112a, 112b; and 22 U.S.C. 2651a.
2. The heading of Part 181 is revised to read:
PART 181--COORDINATION, REPORTING AND PUBLICATION OF INTERNATIONAL
AGREEMENTS
3. The first sentence of Sec. 181.1(a) is revised to read:
Sec. 181.1 Purpose and application.
(a) The purpose of this part is to implement the provisions of 1
U.S.C. 112a and 112b, popularly known as the Case-Zablocki Act
(hereinafter ``the Act''), on the reporting to Congress, coordination
with the Secretary of State and publication of international
agreements. * * *
* * * * *
4. A new Sec. 181.8 is added to read:
Sec. 181.8 Publication.
(a) The following categories of international agreements will not
be published in United States Treaties and Other International
Agreements:
(1) Bilateral agreements for the rescheduling of intergovernmental
debt payments;
(2) Bilateral textile agreements concerning the importation of
products containing specified textile fibers done under the
Agricultural Act of 1956, as amended;
(3) Bilateral agreements between postal administrations governing
technical arrangements;
(4) Bilateral agreements that apply to specified military
exercises;
(5) Bilateral military personnel exchange agreements;
(6) Bilateral judicial assistance agreements that apply only to
specified civil or criminal investigations or prosecutions;
(7) Bilateral mapping agreements;
(8) Tariff and other schedules under the General Agreement on
Tariffs and Trade and under the Agreement of the World Trade
Organization;
(9) Agreements that have been given a national security
classification pursuant to Executive Order No. 12958 or its successors;
and
(b) Agreements on the subjects listed in paragraphs (a) (1) through
(9) of this section that had not been published as of February 26,
1996.
(c) Any international agreements in the possession of the
Department of State, other than those in paragraph (a)(9) of this
section, but not published will be made available upon request by the
Department of State.
Dated: February 16, 1996.
Robert E. Dalton,
Assistant Legal Adviser for Treaty Affairs.
[FR Doc. 96-4235 Filed 2-23-96; 8:45 am]
BILLING CODE 4710-08-M
Complete official Federal Register PDF
FR Doc. 96-4216 Coastal Migratory Pelagic Resources of the Gulf of Mexico and South Atlantic; Closure of a Commercial Fishery
[Federal Register Volume 61, Number 38 (Monday, February 26, 1996)]
[Rules and Regulations]
[Page 7078]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-4216]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 642
[Docket No. 950725189-5260-02; I.D. 022096C]
Coastal Migratory Pelagic Resources of the Gulf of Mexico and
South Atlantic; Closure of a Commercial Fishery
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Closure of a commercial fishery for king mackerel.
-----------------------------------------------------------------------
SUMMARY: NMFS closes the commercial hook-and-line fishery for king
mackerel in the exclusive economic zone (EEZ) in the Florida west coast
sub-zone. This closure is necessary to protect the overfished Gulf king
mackerel resource.
EFFECTIVE DATE: February 21, 1996, through June 30, 1996.
FOR FURTHER INFORMATION CONTACT: Mark F. Godcharles, 813-570-5305.
SUPPLEMENTARY INFORMATION: The fishery for coastal migratory pelagic
fish (king mackerel, Spanish mackerel, cero, cobia, little tunny,
dolphin, and, in the Gulf of Mexico only, bluefish) is managed under
the Fishery Management Plan for the Coastal Migratory Pelagic Resources
of the Gulf of Mexico and South Atlantic (FMP). The FMP was prepared by
the Gulf of Mexico and South Atlantic Fishery Management Councils
(Councils) and is implemented by regulations at 50 CFR part 642 under
the authority of the Magnuson Fishery Conservation and Management Act.
Catch limits recommended by the Councils and implemented by NMFS
for the Gulf of Mexico migratory group of king mackerel set the
commercial quota of king mackerel in the Florida west coast sub-zone at
865,000 pounds (392,357 kg). That quota was further divided into two
equal quotas of 432,500 pounds (196,179 kg) for vessels in each of two
groups by gear types--vessels fishing with run-around gillnets and
those using hook-and-line gear.
Under 50 CFR 642.26(a), NMFS is required to close any segment of
the king mackerel commercial fishery when its allocation or quota is
reached, or is projected to be reached, by publishing notification in
the Federal Register. NMFS has determined that the commercial quota of
432,500 pounds (196,179 kg) for Gulf group king mackerel for vessels
using hook-and-line gear in the Florida west coast sub-zone was reached
on February 20, 1996. The trip limit was previously reduced to 50 fish
on January 24, 1996, when 75 percent of the quota was taken (January
29, 1996; 61 FR 2728). Hence, the commercial fishery for king mackerel
for such vessels in the Florida west coast sub-zone is closed effective
12:01 a.m., local time, February 21, 1996, through June 30, 1996, the
end of the fishing year.
The Florida west coast sub-zone extends from the Alabama/Florida
boundary (87 deg.31'06'' W. long.) to: (1) the Dade/Monroe County,
Florida boundary (25 deg.20.4' N. lat.) from November 1 through March
31; and (2) the Monroe/Collier County, Florida boundary (25 deg.48' N.
lat.) from April 1 through October 31.
NMFS previously determined that the commercial quota of king
mackerel from the western zone of the Gulf of Mexico was reached and
closed that segment of the fishery on September 5, 1995 (60 FR 47100,
September 11, 1995). Subsequently, NMFS determined that the commercial
quota of king mackerel for vessels using run-around gillnet gear in the
Florida west coast sub-zone of the eastern zone of the Gulf of Mexico
was reached and closed that segment of the fishery at noon on February
12, 1996. Thus, with this closure, all commercial fisheries for king
mackerel in the EEZ are closed from the U.S./Mexico border through the
Florida west coast sub-zone through June 30, 1996.
Except for a person aboard a charter vessel, during the closure, no
person on board a vessel permitted to fish under a commercial
allocation may fish for, retain, or have in possession in the EEZ Gulf
group king mackerel from the closed zones. A person on board a charter
vessel may continue to fish for king mackerel in the closed zones under
the bag limit set forth in Sec. 642.24(a)(1)(i), provided the vessel is
under charter and the vessel has an annual charter vessel permit, as
specified in Sec. 642.4(a)(2). A charter vessel with a permit to fish
on a commercial allocation is under charter when it carries a passenger
who fishes for a fee or when there are more than three persons aboard,
including operator and crew.
During the closure, king mackerel from the closed zones taken in
the EEZ, including those harvested under the bag limit, may not be
purchased, bartered, traded, or sold. This prohibition does not apply
to trade in king mackerel from the closed zones that were harvested,
landed, and bartered, traded, or sold prior to the closure and held in
cold storage by a dealer or processor.
Classification
This action is taken under 50 CFR 642.26(a) and is exempt from
review under E.O. 12866.
Authority: 16 U.S.C. 1801 et seq.
Dated: February 20, 1996.
Richard H. Schaefer,
Director, Office of Fisheries Conservation and Management, National
Marine Fisheries Service.
[FR Doc. 96-4216 Filed 2-21-96; 9:31 am]
BILLING CODE 3510-22-F
Complete official Federal Register PDF
FR Doc. 96-4203 Hazardous Materials Pilot Ticketing Program
[Federal Register Volume 61, Number 38 (Monday, February 26, 1996)]
[Rules and Regulations]
[Pages 7178-7184]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-4203]
[[Page 7177]]
_______________________________________________________________________
Part IV
Department of Transportation
_______________________________________________________________________
Research and Special Programs Administration
_______________________________________________________________________
49 CFR Part 107
Hazardous Materials Pilot Ticketing Program; Final Rule
Federal Register / Vol. 61, No. 38 / Monday, February 26, 1996 /
Rules and Regulations
[[Page 7178]]
DEPARTMENT OF TRANSPORTATION
Research and Special Programs Administration
49 CFR Part 107
[Docket No. HM-207E, Amdt No. 107-36]
RIN 2137-AC70
Hazardous Materials Pilot Ticketing Program
AGENCY: Research and Special Programs Administration (RSPA), DOT.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: To streamline administrative procedures, cut costs, and reduce
regulatory burdens on persons subject to Federal hazardous materials
transportation law, RSPA is implementing a pilot program for ticketing
of certain hazardous materials transportation violations. RSPA will
issue tickets for violations that have little or no direct impacts on
safety. Persons receiving a ticket may pay the ticket, respond
informally to RSPA or request a formal hearing before a Department of
Transportation Administrative Law Judge (ALJ). Penalties will be
substantially reduced for persons who elect to pay the amounts assessed
in the tickets.
This final rule is consistent with the recommendation in the
National Performance Review (DOT02.01) to streamline the enforcement
process by implementing pilot programs to offer greater flexibility in
enforcement methods. RSPA's pilot ticketing program will cut costs,
simplify the processing of certain Hazardous Materials Regulations
(HMR) violations, and achieve compliance through more efficient and
effective processes. The pilot ticketing program allows recipients to
more easily respond to allegations of HMR violations.
EFFECTIVE DATE: May 15, 1996.
FOR FURTHER INFORMATION CONTACT: John J. O'Connell, Jr., Director,
Office of Hazardous Materials Enforcement, (202) 366-4700; or Nancy E.
Machado, Office of the Chief Counsel, (202) 366-4400, Research and
Special Programs Administration, U.S. Department of Transportation, 400
Seventh Street SW, Washington DC 20590-0001.
SUPPLEMENTARY INFORMATION:
I. Background
The Research and Special Programs Administration (RSPA) is the
administration within the Department of Transportation (DOT) primarily
responsible for implementing the Federal hazardous material
transportation law (Federal hazmat law), 49 U.S.C. 5101-5127. RSPA does
this by issuing and enforcing the Hazardous Materials Regulations
(HMR), 49 CFR Parts 171-180. Under delegations from the Secretary of
Transportation [49 CFR Part 1], the authority for enforcement under
Federal hazardous materials transportation law (Federal hazmat law), 49
U.S.C. 5101-5127, is shared by RSPA and each of the four modal
administrations: the Federal Highway Administration, the Federal
Railroad Administration, the Federal Aviation Administration, and the
United States Coast Guard. RSPA has primary jurisdiction over packaging
manufacturers, reconditioners, and retesters (except with respect to
bulk packagings, which are the responsibility of the applicable modal
administration) and a shared authority over shippers of hazardous
materials. RSPA does not enforce regulations applicable exclusively to
motor carriers, rail carriers, air carriers or vessel carriers.
RSPA's Office of the Chief Counsel (OCC) may initiate
administrative proceedings for violations of the HMR, and these
proceedings may result in a civil penalty, an order directing
compliance actions, or both. 49 CFR 107.307. Administrative proceedings
are initiated by mailing a notice of probable violation (NOPV) to a
person believed to have violated the HMR. 49 CFR 107.311. The notice
specifies the alleged violation(s) of the HMR, states the proposed
penalty, and includes a copy of the inspection/investigation report.
Within 30 days of receiving the notice, the recipient of the notice may
admit the allegations by paying the proposed penalty, make an informal
response, or request a formal hearing. 49 CFR 107.313, 107.315.
The recipient who chooses to respond informally submits a written
response to the OCC to contest the alleged violations or the proposed
penalty. The OCC considers the inspection report, the response, and any
additional evidence obtained to determine whether the recipient
committed the alleged violations and, if so, the appropriate penalty in
accordance with the statutory criteria for penalty determination, 49
U.S.C. 5123(c). See also RSPA's civil penalty guidelines at 60 FR 12139
[March 6, 1995]. If the recipient requests an informal conference, an
opportunity is provided to supplement the written response in person or
by telephone with the OCC attorney and the inspector. Information
obtained by the OCC during the informal conference becomes part of the
case file. The Chief Counsel then issues an order finding a violation
or violations and, for each violation found, assesses a civil penalty.
The order may be appealed to the RSPA Administrator. See generally 49
CFR 107.317, 107.325(b).
Alternatively, the recipient may request a formal administrative
hearing on the record before an ALJ from DOT's Office of Hearings. At
the conclusion of the hearing, the ALJ determines whether the alleged
violations have been committed and, if so, imposes a penalty in
accordance with the statutory assessment criteria. Either party may
appeal a decision of the ALJ to the RSPA Administrator. See generally
49 CFR 107.319, 107.325(a).
At any time during an informal or a formal proceeding, RSPA and the
recipient of the notice may agree upon an appropriate resolution of the
case. 49 CFR 107.327.
II. Proposed Rule
On August 21, 1995, RSPA published a notice of proposed rulemaking
(NPRM) under Docket HM-207E [60 FR 43430] seeking public comment on a
proposal to implement a pilot program for ticketing certain violations
of the HMR. On October 17, 1995, RSPA extended the comment period for
an additional 30 days. See 60 FR 53729.
Under the proposed rule, the Associate Administrator for Hazardous
Materials Safety would be authorized to issue tickets for certain HMR
violations that are currently handled through the civil penalty
process. Violations eligible for inclusion in the pilot ticketing
program would be those that do not have a substantial impact on safety.
Because this program is designed to ease administrative and regulatory
burdens on persons subject to enforcement proceedings under the HMR,
violations currently eligible, under 49 CFR 107.309, for letters of
warning generally would not be included in the pilot ticketing program.
The NPRM contained a proposal for a two-year pilot program. At the
end of two years, RSPA would evaluate the program in terms of cost
savings, time savings, and impact on the effectiveness of its
compliance program. The proposed rule also suggested a number of
violations for inclusion in the pilot ticketing program, including,
among others, operating under an expired exemption, failing to
register, failing to maintain training records, and failing to file
incident reports. RSPA indicated that, based on comments received and
experience gained through administration of the pilot ticketing
program, additional types of violations might be added to the program.
These violations would not be processed under the pilot ticketing
program if
[[Page 7179]]
more serious violations also are alleged. Furthermore, a previous
ticketing violation will be considered a ``prior'' violation in the
event of a future violation of the HMR by the same party.
In the proposed rule, RSPA indicated an expectation that the
Associate Administrator for Hazardous Materials Safety would delegate
ticketing authority to the Director, Office of Hazardous Materials
Enforcement (OHME), who may redelegate that authority. RSPA field
inspectors would conduct inspections as at present. Supervisory
inspectors then would evaluate field inspector reports and issue
tickets to parties when appropriate. Consequently, tickets would not be
issued on the spot by inspectors following an inspection but would be
issued shortly thereafter. The ticketing process would be limited to
those cases involving violations identified as meeting safety risk
criteria for ticketing established by the Associate Administrator.
A ticket would include a statement of the facts supporting the
alleged violation. In addition, the ticket would set forth the maximum
penalty provided by statute, the proposed penalty determined according
to the RSPA civil penalty guidelines, see 60 FR 12139 [March 6, 1995],
and the ticket penalty amount. The ticket would state that the
recipient must pay the penalty or request a hearing within 30 days of
receipt of the ticket.
RSPA proposed that the civil penalty contained in the ticket would
be substantially less than the penalty that would be proposed under
current procedures or that could be imposed by an ALJ at a hearing.
RSPA also stated that if the recipient pays the ticket amount and
states that action to correct the violation has been taken, the matter
would be closed and there would be no further agency action. If the
recipient elects not to pay the ticket and requests a hearing, RSPA
would forward the case file to a Coast Guard Hearing Officer who would
review the case in accordance with Coast Guard procedures set forth at
33 CFR 1.07. The Hearing Officer would not be bound by the reduced
penalty amount in the ticket and could impose a civil penalty as high
as the proposed penalty determined under RSPA's civil penalty
guidelines. The Hearing Officer's factual findings and legal
conclusions in a particular case would apply solely to that case. A
person could appeal the decision of the Hearing Officer to the
Commandant, United States Coast Guard.
RSPA also stated in the proposed rule that a recipient would waive
a right to a hearing by failing to respond to the ticket within 30
days. Moveover, failure to respond would be deemed an admission of the
violation, and the reduced penalty would be owed to RSPA. An unpaid
penalty or a penalty imposed by the Coast Guard Hearing Officer or the
Commandant on appeal would constitute a debt owed to the United States
Government.
III. Discussion of Comments
RSPA received 31 written comments on the NPRM. The comments were
submitted by chemical manufacturing companies, trade associations,
transporters and private individuals. Commenters uniformly supported
RSPA's efforts to streamline administrative procedures, cut costs and
reduce regulatory burdens.
Approximately half of the commenters supported RSPA's proposal but
with various recommended changes. The remainder opposed the proposal,
and some suggested alternative means of improving current enforcement
procedures.
The commenters predominantly addressed the following issues: (1)
Violations under the pilot ticketing program; (2) authority to issue
tickets; (3) the time-frame for issuing a ticket; (4) the time-frame
for responding to a ticket; (5) the option to respond informally; (6)
processing by Coast Guard Hearing Officers; (7) civil penalty amounts;
and (8) reduced cost/burden.
A detailed discussion of the comments, and RSPA's response to them,
is provided in the following summary.
A. Violations Under the Pilot Ticketing Program
1. Impact on Safety
RSPA received numerous comments concerning RSPA's statement in the
NPRM that, under the pilot ticketing program, it would issue tickets
for violations that do not have ``substantial impacts'' on safety. RSPA
stated that these violations might include, among others, operating
under an expired exemption, failing to register, failing to maintain
training records, and failing to file incident reports.
The commenters generally questioned why the agency would expend
limited resources on enforcing regulations that do not have substantial
impacts on safety. Several suggested that the regulations in question
either be eliminated or that enforcement efforts with respect to
violations of those regulations be limited to the issuance of warning
letters.
RSPA disagrees that these regulations should be deleted from the
HMR or that enforcement actions should be limited to warning letters.
The registration, exemption renewal and training record requirements
are mandated by Federal hazmat law, which also mandates that a civil
penalty be imposed for violations of any provisions of that law or the
HMR. In addition, although violations of these regulations, in and of
themselves, may not have a substantial or direct impact on safety,
their enforcement has important, indirect effects on safety.
An exemption is an official authorization to do something, for a
two-year period, that is not authorized under the HMR. 49 U.S.C.
5117(a)(2). See also 49 CFR 107.119(a). Renewal is necessary to keep
the exemption in effect and to allow RSPA to ascertain that practices
authorized under the exemption still provide an equal or greater level
of safety than the HMR. As part of the renewal process, an application
must contain all relevant shipping and accident experience related to
activities under an exemption. 49 U.S.C. 5117(b). See also 49 CFR
107.105(a)(5).
The failure of hazardous materials offerors or transporters to
register with RSPA, when required, affects RSPA's ability to identify
and monitor those who are subject to the registration requirements. It
also affects RSPA's ability to collect fees that are distributed for
public sector planning and training for States, Indian tribes and local
communities, to deal with hazardous materials emergencies, particularly
those involving transportation. See 49 U.S.C. 5108(g); 49 CFR Part 110.
These State and local programs affect safety. Failure to register
directly affects these programs.
Failing to maintain training records, similarly, does not directly
impact safety. Nevertheless, training records are the means of
verifying that hazmat employees have been trained to recognize and
identify hazardous materials, have knowledge of specific requirements
of the HMR applicable to functions they perform, and have knowledge of
emergency response information, self-protection measures and accident
prevention methods and procedures. Federal hazmat law states:
After completing the training, each hazmat employer shall
certify, with documentation the Secretary of Transportation may
require by regulation, that the hazmat employees of the employer
have received training and have been tested on appropriate
transportation areas of responsibility * * *
49 U.S.C. 5107(c). See also 49 CFR 172.704(d). Unquestionably, the
training required under the HMR directly impacts safety, and the
training records
[[Page 7180]]
requirement enables verification that the training is being conducted.
Generally, failing to file incident reports also does not directly
impact safety. Nonetheless, RSPA requires that incident reports be
filed as a means for it to evaluate the effectiveness of its regulatory
program and to determine the need for regulatory changes to address new
or emerging hazardous materials transportation safety problems. The
requirement to file incident reports directly supports RSPA's safety
initiatives and is one of the only means for RSPA to obtain detailed
information concerning hazardous materials incidents.
As supported by the above discussion, RSPA does not agree that
regulations that do not have a direct or substantial impact on safety,
in and of themselves, necessarily should be deleted from the HMR or
enforced only through the issuance of warning letters.
2. Definitive List of Violations Subject to Ticketing
Five commenters asked that RSPA establish a definitive list of
violations subject to the pilot ticketing program. RSPA believes that
there is a legitimate need for flexibility during the initial two years
of this program. Consequently, RSPA will not establish a definitive
list of violations, but will begin the program by addressing the
violations discussed above. Based on experience gained through
administration of the pilot ticketing program, additional types of
violations may be added or certain types of violations deleted from the
program. At the end of the two-year pilot program, RSPA will evaluate
the program in terms of cost savings, time savings, and effectiveness.
Finally, at the request of one commenter, RSPA wishes to clarify
that tickets will not be issued for violations it believes to be
willful.
B. Authority To Issue Tickets
One commenter asked that RSPA clarify who would issue tickets under
the pilot program. Another commenter expressed concern that RSPA might
delegate ticketing authority to ``others,'' including States. The NPRM
indicated that the Associate Administrator for Hazardous Materials
Safety would issue tickets. It is common practice to provide authority
in regulations to the highest level agency official responsible for a
particular program. It is then that official's choice whether to retain
that authority or to delegate it. Presently, it is contemplated that
the Associate Administrator will delegate this authority to the
Director, OHME, who will delegate this authority to OHME supervisory
inspectors. RSPA does not intend to delegate ticket-writing authority
to any entity outside the agency. Although States, local governments
and Indian tribes often incorporate the HMR by reference into their own
regulations, they usually do not incorporate RSPA's procedural
regulations but instead use their own existing procedures for handling
violations of State and local and Indian tribe regulations.
Three commenters also expressed concern that the proposed pilot
ticketing program would lead to a ticket-writing frenzy by RSPA
inspectors, who would find it easy to write tickets in order to provide
a tangible record of the inspectors' enforcement activities. One of the
three commenters stated that the program may encourage inspectors to
focus on ``perceived non-threatening technical violations that have in
the past often been cooperatively and summarily addressed.''
RSPA does not require its inspectors to initiate a certain number
of enforcement actions, and job performance is not measured by the
number of enforcement actions that result from their inspections. Also,
at the inspector level, discovery of ticketing or other types of
violations results in the same amount of work for that inspector.
Consequently, there is no incentive for an inspector to focus on
ticketing violations to the exclusion of other, more serious
violations.
C. Time-Frame for Issuing a Ticket
Several commenters were concerned that the NPRM did not specify a
time-frame within which tickets would be issued after the agency's
discovery of an apparent violation. One commenter suggested that RSPA
issue tickets within 60 days of discovery of an apparent violation.
RSPA agrees that establishing a goal for the timely issuance of tickets
would be useful to both the agency and the regulated community.
Consequently, RSPA will endeavor to issue tickets as expeditiously as
possible, generally within 60 days after an apparent violation has been
discovered.
D. Time-Frame for Responding to a Ticket
In the NPRM, RSPA proposed to require a response to a ticket within
30 days of the date the ticket was received. Several commenters
remarked that the 30-day time period was too short and asked that it be
extended to either 45 or 60 days in order to allow sufficient time for
the ticket recipient to investigate the violations alleged in the
ticket. One commenter remarked that 30 days would not be sufficient
time for a ticket to ``find its way through [an] organization to the
right place to be either appealed or paid.'' Others cited mail delays,
holidays and business travel as reasons why the response time should be
longer than 30 days. RSPA agrees that a 30-day response time may be too
short in some instances and, therefore, agrees that 45 days is a more
suitable time-frame for responding to a ticket.
E. Option to Respond Informally; Processing by Coast Guard Hearing
Officers
Numerous commenters objected to the two limited options for
responding to a ticket, as proposed in the NPRM. RSPA proposed to allow
persons to either pay the ticket or to request a hearing before a Coast
Guard Hearing Officer who would review the case in accordance with
Coast Guard procedures. One commenter strongly recommended that DOT
consider an intermediate option for resolving tickets prior to
burdensome, costly, last-resort court proceedings. Another stated that
the two-year pilot program is worthwhile, but that the proposed rule
should be modified to ensure that due process rights are preserved
where there is a reasonable basis to dispute alleged violations. This
commenter asked that RSPA's pilot ticketing program include procedures
for filing an informal response or request for hearing under RSPA's
current informal response and hearing procedures at 49 CFR 107.317 and
49 CFR 107.319, respectively. The commenter added that the informal
response option eliminates the need to engage an attorney and to go
through the costly hearing process.
Many of these same commenters, in addition to others, also objected
to RSPA's proposal to forward cases to Coast Guard Hearing Officers for
processing under Coast Guard procedures where a person elects not to
pay a ticket and requests a hearing. These objections were based on the
fact RSPA's proposal would require the industry to familiarize itself
with a new set of procedures, thereby increasing the regulatory burden
on the industry. Also, many commenters questioned the Coast Guard's
familiarity with the HMR to the extent it applies to transportation
other than by water. One commenter stated that RSPA's proposal should
be modified to include the right to appeal to the RSPA Administrator,
rather than to the Commandant of the Coast Guard, in order to have some
uniformity in penalty amounts for similar violations. Another commenter
stated that the OCC and DOT's ALJs are well qualified to evaluate the
substance of HMR
[[Page 7181]]
violations and to assess appropriate penalty levels and should be
involved in the pilot ticketing program rather than the Coast Guard.
RSPA does not agree with those commenters who question Coast Guard
Hearing Officers' ability to efficiently process RSPA ticketing cases.
The HMR requirements with respect to exemption renewal, registration,
incident reporting and training records apply to, among others,
carriers by vessel. Nevertheless, after reviewing all the comments,
RSPA has decided that it would be more efficient and cost-effective,
and in the interest of the industry and the agency, to keep the pilot
ticketing program within RSPA and to use essentially the same current
procedures outlined above, if a person elects to contest a ticket.
Specifically, if a person elects to contest a ticket, that person may
do so, within 45 days of receiving the ticket, by making an informal
response under 49 CFR 107.317 or requesting a formal hearing under 49
CFR 107.319.
The ticket will be the functional equivalent of an NOPV, and
contested matters will be handled by the OCC as at present. The OCC
will not be bound by the reduced penalty amount shown on the ticket and
could impose a penalty as high as the proposed penalty determined under
RSPA's civil penalty guidelines, which is also shown on the ticket. In
no case will the OCC seek a penalty greater than the highest penalty
amount shown on the ticket.
Anyone choosing to contest a ticket will have the case processed by
the OCC as at present. In this way, RSPA provides a streamlined process
for those who do not wish to contest an alleged violation and leaves
the present system intact for those who wish to contest an alleged
violation and avail themselves of the current, familiar procedures.
F. Civil Penalty Amounts
1. Amount of Penalty Reductions
RSPA stated in the NPRM that penalties under the pilot ticketing
program would be ``substantially less than the penalty that would be
proposed under current procedures or that could be imposed by an ALJ at
a hearing.'' Several commenters noted that RSPA did not quantify the
percentage or dollar amount of the reduced penalties. Two commenters
stated that the key to a successful pilot ticketing program is
substantially reduced penalties that serve as an inducement for
companies to accept civil penalty responsibility in return for
eliminating costs associated with contesting the violation. Commenters
suggested that penalties assessed under the pilot ticketing program be
at least 50 percent less than the penalties that would be assessed
under current procedures.
RSPA agrees that penalties under the pilot ticketing program should
be sufficiently low to provide an incentive to pay. Therefore, RSPA
will continue to calculate a penalty as it does under its current
procedures and guidelines, but it will reduce that penalty by 50
percent where the violation at issue is processed under this program.
Nevertheless, the ticketing program is a pilot program and RSPA later
may decide to reduce ticketing penalties by more or by less than 50
percent of the penalty calculated under current procedures and
guidelines, based on experience with the program. In no case will a
penalty be less than $250.
One commenter suggested that RSPA waive or reduce penalties even
further when ticket recipients demonstrate compliance, within a
specific time period, with the HMR. Federal hazmat law requires that a
penalty be assessed where a violation of the regulations occurs.
Specifically, Section 5123 of Federal hazmat law states:
A person that knowingly violates this chapter or a regulation
prescribed or order issued under this chapter is liable to the
United States Government for a civil penalty of at least $250 but
not more than $25,000 for each violation.
49 U.S.C. 5123.
2. Incentives to Pay or Not Pay Tickets
Several commenters voiced concern regarding RSPA's proposal to
assess penalties under the pilot ticketing program that are
substantially less than the penalties that would be proposed under
current procedures or that could be imposed by an ALJ at a hearing.
They stated that the disparity in civil penalty amounts, plus the
threat of having the penalty increase if a person contests a ticket,
serves to create an economic incentive to simply pay the ticket despite
the violation history that doing so would create. Several other
commenters reached the opposite conclusion and stated that the
disparity would not create an economic incentive to pay the ticket
because paying the penalty would affect one's violation history and
could result in higher penalties for future violations. Instead, these
commenters predicted a rise in the numbers of hearings and suggested
that, to avoid this result, RSPA not count ticketing violations as
prior violations. Some commenters also voiced concern that lower
penalties would provide an economic incentive for companies not to
comply with the HMR; in other words, it would cost less to pay the
penalty than to comply with the HMR.
RSPA does not agree that reduced penalties for ticketing violations
will be an economic incentive to pay tickets at the expense of one's
violation history. The pilot ticketing program, with its reduced
penalties, provides a streamlined procedure for those who might not
dispute that a violation has occurred--for example, failure to register
or to renew an exemption--but who would dispute the proposed penalty,
under current procedures, as too high. Under the pilot ticketing
program, these people have the option of admitting the violation and
paying a substantially lower civil penalty. Because RSPA has decided,
in response to numerous comments, to authorize an informal response and
to leave the pilot ticketing program within RSPA, those who dispute a
ticket can choose to make an informal response or they may request a
formal hearing and the case will be handled under current OCC
procedures. Consequently, lower ticket penalties provide an opportunity
for those who do not contest the violation but who would contest the
amount of the penalty under current procedures to pay lower ticket
penalties and avoid OCC involvement. Nevertheless, any person who
receives a ticket may choose to have the case processed under existing
OCC procedures.
Likewise, RSPA does not agree that counting ticketing violations as
prior violations in future cases will result in an increased number of
requests for formal hearings, or even in an increase in the number of
informal responses. Under current OCC procedures, the violations that
have been identified for processing under the pilot ticketing program
already count as prior violations. Indeed, Federal hazmat law requires
RSPA to consider violation histories when assessing civil penalties. 49
U.S.C. 5123.
In the NPRM, RSPA proposed to continue counting ticketing
violations as prior violations, and RSPA reaffirms that position here.
Nevertheless, RSPA agrees that ticketing violations should be given
less weight, in the event of future violations, than more serious non-
ticketing violations. Therefore, RSPA intends initially to give prior
ticketing violations only one-half the weight of prior non-ticketing
violations. In the future, RSPA may decide to give more or less weight
to ticketing violations as it gains experience with this pilot program.
Finally, RSPA does not agree that lower ticket penalties will
provide an economic incentive for people not to comply with the HMR.
The amount of the penalty, the violation history that will result from
non-compliance, and
[[Page 7182]]
the processing of repeat violations by the OCC should be incentive
enough to comply with the HMR.
3. Penalty Guidelines
Two commenters questioned whether using RSPA's March 6, 1995 civil
penalty guidelines as proposed in the NPRM is contrary to RSPA's own
pronouncements regarding the meaning and use of its guidelines. One
commenter noted that RSPA proposed to have the ticket include ``the
proposed penalty determined according to the RSPA civil penalty
guidelines'' but that RSPA stated in the preamble to the guidelines
that they were ``merely informational, [and] not finally determinative
of any issues or rights, and do not have the force of law.'' 60 FR
12139. The commenter questioned whether utilizing the penalty
guidelines to discourage ticket recipients from contesting alleged
violations converts those guidelines into determinative rules under
United States Telephone Association v. FCC, 28 F.3d 1232 (D.C.Cir.
1994) and Used Equipment Sales, Inc. v. Department of Transportation,
54 F.3d 862 (D.C. Cir 1995).
RSPA did not intend to imply in the NPRM that the penalty
guidelines would be used in any way that differs from current
procedure. As noted in the preamble to the penalty guidelines:
These guidelines are a preliminary assessment tool used by RSPA
personnel, and they create no rights in any party. They contain
baseline amounts or ranges for violations that frequently have been
cited in RSPA hazmat NOPVs. When a violation not described in the
guidelines is encountered, it sometimes is possible to determine a
baseline penalty by analogy to a similar violation in the
guidelines.
Even when the guidelines are applicable to a violation, the use
of the guidelines is only a starting point. They promote consistency
and generally are used to provide some standard for imposing similar
penalties in similar cases. However, no two cases are identical, and
ritualistic use of the guidelines would produce arbitrary results
and, most significantly, would ignore the statutory mandate to
consider several specific assessment criteria. Therefore, regardless
of whether the guidelines are used to determine a baseline amount
for a violation, RSPA enforcement and legal personnel must apply the
statutory assessment criteria to all relevant information in the
record concerning any alleged violation and the apparent violator.
These criteria are in 49 U.S.C. 5123 and 49 CFR 107.331.
* * * the guidelines are not binding on RSPA or Department of
Transportation personnel. Enforcement personnel and staff attorneys
generally use the guidelines as a starting point for penalty
assessment. However, they, the Chief Counsel, administrative law
judges (ALJs) and the RSPA Administrator may deviate from the
guidelines where appropriate, and are legally bound only by the
statutory assessment criteria.
60 FR 12139. At the time the penalty guidelines final rule and the NPRM
in this matter were published, RSPA was aware of the D.C. Circuit Court
opinion in United States Telephone Ass'n v. FCC, cited above. RSPA
reviewed the FCC case and discussed, in the preamble to the penalty
guidelines final rule, why the penalty guidelines are a policy
statement and, therefore, not subject to the notice and comment
requirements of the Administrative Procedure Act, 5 U.S.C. 551 et seq.
See 60 FR 12139.
In fact, RSPA published its guidelines as an informational appendix
to its rules and not as a regulation. Also, RSPA does not use its
guidelines in a rote fashion to automatically determine a proposed
penalty but instead applies the statutory criteria and the guidelines
to all of the particular evidence in each case to arrive at a proposed
penalty. Consequently, use of RSPA's penalty guidelines as a starting
point when assessing civil penalties either under current procedures or
under the pilot ticketing program does not turn the guidelines into
rules that would require notice and comment. RSPA's actions are
consistent with both of the cited cases.
G. Reduced Cost/Burden
A significant number of commenters stated that the pilot ticketing
program, as proposed, would not accomplish RSPA's stated goals of
streamlining administrative procedures, cutting costs and reducing
regulatory burdens on persons subject to the HMR. These commenters said
that the pilot ticketing program, as proposed, could be
counterproductive and would ultimately create another layer of
administrative procedures, add costs and increase regulatory burdens on
the industry. Many commenters thought that the pilot ticketing program,
as proposed, would unnecessarily complicate the enforcement process for
ticketing violations. Many commenters stated that they did not see any
real savings to either the Federal Government or the regulated industry
under the proposal.
As discussed above, RSPA agrees that the pilot ticketing program,
as proposed, would have added another layer of procedures and might not
have resulted in the cost savings RSPA originally anticipated.
Consequently, RSPA has modified the proposal as outlined above, i.e.,
RSPA will keep the pilot ticketing program within the agency and will
continue to have the OCC process contested cases under current
procedures. RSPA believes that this streamlined procedure will result
in the cost savings and reduced regulatory burden that RSPA originally
anticipated when it published its proposal.
Specifically, anyone who opts to pay a ticket will realize
immediate cost savings in that the proposed penalty will be half of
what it would have been under current procedures. Also, the ticket
recipient avoids the need to make a detailed written response to the
agency (other than a statement of corrective action) and avoids the
subsequent written and oral communications that arise during OCC
processing of cases. The formal hearing process is bypassed, and legal
fees are avoided. Furthermore, there is no OCC or post-ticket OHME
involvement in the enforcement action where a ticket recipient opts to
pay a ticket. The OCC avoids having to issue an NOPV, hold an informal
conference, respond to compromise offers, issue an order, participate
in ALJ proceedings, draft a decision on appeal, and issue a close-out
letter. OHME avoids involvement in the informal conference and formal
hearings, and will not have to interact with the OCC on factual and
technical issues.
Where a ticket is contested, current procedures would apply.
Nevertheless, there will be some savings to the OCC who will not be
required to issue an NOPV but can rely on the ticket to have provided
notice of the alleged violations to the ticket recipient. Furthermore,
when the OCC receives a case from OHME, the package will not only
contain the ticket but a response to the ticket which may set forth
corrective action and may contain a compromise offer. This information
will allow the OCC to begin processing the case at a more advanced
stage than otherwise would be the case and will reduce overall
processing time.
H. Miscellaneous
In discussing the pilot ticketing program, one commenter made two
statements that require a response. First, the commenter stated that
the NPRM is silent on the consequences of paying a civil penalty
without ``the requested admission of guilt.'' RSPA does not require an
admission of guilt either under the pilot ticketing program or under
current procedures. In either case, when a person pays a civil penalty,
the case is closed and counts as a prior violation in the event of a
future violation of the HMR. No admission of guilt is required.
The same commenter questioned whether the agency will require
evidence of corrective action under the
[[Page 7183]]
pilot ticketing program. RSPA currently requests and encourages persons
who have violated the HMR to submit evidence of corrective action to
the agency. RSPA will continue this practice under the pilot ticketing
program. The exit briefing form that RSPA inspectors leave with a
person at the end of an inspection contains language encouraging the
submission of documented corrective action to the agency as soon as
possible. The ticket, like an NOPV, will also contain similar language.
In the event that a ticket is paid but no evidence of corrective action
has been submitted, the agency will send a letter to the ticket
recipient again encouraging the submission of documented corrective
action--just as it does in non-ticketing cases where payment is made in
response to an NOPV. Under current procedures, RSPA receives some
documented corrective action in virtually all of its enforcement cases.
Several commenters also questioned the relationship between RSPA's
pilot ticketing program and tickets issued for violations of State and
Federal motor carrier safety regulations. As stated above, the
authority for enforcement under Federal hazmat law, 49 U.S.C. 5101-
5127, is shared by RSPA and each of the four modal administrations.
RSPA has primary jurisdiction over packaging manufacturers,
reconditioners and retesters (except with respect to single-mode bulk
packagings, which are primarily the responsibility of the applicable
modal administration) and a shared authority over shippers of hazardous
materials. RSPA does not enforce Federal or State motor carrier safety
regulations. To the extent that motor carriers are affected by RSPA's
pilot ticketing program, it generally will be because of: (1) Their
shipper activities; (2) their failure to comply with the HMR's carrier
incident reporting requirements; or (3) their failure to comply with
the HMR's registration requirements.
IV. Rulemaking Analyses and Notices
Executive Order 12866 and DOT Regulatory Policies and Procedures
This final rule is not considered a significant regulatory action
under section 3(f) of Executive Order 12866 and therefore is not
subject to review by the Office of Management and Budget. The rule is
not significant according to the Regulatory Policies and Procedures of
the Department of Transportation (44 FR 11034).
The changes adopted in this rule do not result in any additional
costs to persons subject to the HMR, but result in modest cost savings
to a small number of them and to the agency. Because of the minimal
economic impact of this rule, preparation of a regulatory impact
analysis or a regulatory evaluation is not warranted.
Executive Order 12612
This final rule has been analyzed in accordance with the principles
and criteria in Executive Order 12612 (``Federalism'') and does not
have sufficient Federalism impacts to warrant the preparation of a
federalism assessment.
Regulatory Flexibility Act
I certify that this final rule will not have a significant economic
impact on a substantial number of small entities. This rule does not
impose any new requirements on persons subject to the HMR; thus, there
are no direct or indirect adverse economic impacts for small units of
government, businesses or other organizations.
Paperwork Reduction Act
There are no new information collection requirements in this final
rule.
Regulation Identifier Number
A regulation identifier number (RIN) is assigned to each regulatory
action listed in the Unified Agenda of Federal Regulations. The
Regulatory Information Service Center publishes the Unified Agenda in
April and October of each year. The RIN number contained in the heading
of this document can be used to cross-reference this action with the
Unified Agenda.
List of Subjects in 49 CFR Part 107
Administrative practice and procedure, Hazardous materials
transportation, Packaging and containers, Penalties, Reporting and
recordkeeping requirements.
In consideration of the foregoing, 49 CFR Part 107 is amended as
follows:
PART 107--HAZARDOUS MATERIALS PROGRAM PROCEDURES
1. The authority citation for Part 107 continues to read as
follows:
Authority: 49 U.S.C. 5101-5127, 44701; 49 CFR 1.45, 1.53.
2. In Sec. 107.307, paragraph (a) is revised to read as follows:
Sec. 107.307 General.
(a) When the Associate Administrator for Hazardous Materials Safety
and the Office of the Chief Counsel have reason to believe that a
person is knowingly engaging or has knowingly engaged in conduct which
is a violation of the Federal hazardous material transportation law or
any provision of this subchapter or subchapter C of this chapter, or
any exemption, or order issued thereunder, for which the Associate
Administrator for Hazardous Materials Safety or the Office of the Chief
Counsel exercise enforcement authority, they may--
(1) Issue a warning letter, as provided in Sec. 107.309;
(2) Initiate proceedings to assess a civil penalty, as provided in
either Secs. 107.310 or 107.311;
(3) Issue an order directing compliance, regardless of whether a
warning letter has been issued or a civil penalty assessed; and
(4) Seek any other remedy available under the Federal hazardous
material transportation law.
* * * * *
Sec. 107.307 [Amended]
3. In addition, in Sec. 107.307, in paragraph (b), the wording
``Office of Chief Counsel'' is revised to read ``the Associate
Administrator for Hazardous Materials Safety and the Office of the
Chief Counsel''.
Sec. 107.309 [Amended]
4. In Sec. 107.309, at the beginning of paragraph (a), the wording
``In addition to the initiation of proceedings under Sec. 107.307 for
the imposition of sanctions or other remedies, the'' is revised to read
``The''.
5. Section 107.310 is added to read as follows:
Sec. 107.310 Ticketing.
(a) For an alleged violation that does not have a direct or
substantial impact on safety, the Associate Administrator for Hazardous
Materials Safety may issue a ticket.
(b) The Associate Administrator for Hazardous Materials Safety
issues a ticket by mailing it by certified or registered mail to the
person alleged to have committed the violation. The ticket includes:
(1) A statement of the facts on which the Associate Administrator
bases the conclusion that the person has committed the alleged
violation;
(2) The maximum penalty provided for by statute, the proposed full
penalty determined according to RSPA's civil penalty guidelines and the
statutory criteria for penalty assessment, and the ticket penalty
amount; and
(3) A statement that within 45 days of receipt of the ticket, the
person must pay the penalty in accordance with paragraph (d) of this
section, make an informal response under Sec. 107.317, or
[[Page 7184]]
request a formal administrative hearing under Sec. 107.319.
(c) If the person makes an informal response or requests a formal
administrative hearing, the Associate Administrator for Hazardous
Materials Safety forwards the inspection report, ticket and response to
the Office of the Chief Counsel for processing under Secs. 107.307-
107.339, except that the Office of the Chief Counsel will not issue a
Notice of Probable Violation under Sec. 107.311. The Office of the
Chief Counsel may impose a civil penalty that does not exceed the
proposed full penalty set forth in the ticket.
(d) Payment of the ticket penalty amount must be made in accordance
with the instructions on the ticket.
(e) If within 45 days of receiving the ticket the person does not
pay the ticket amount, make an informal response, or request a formal
administrative hearing, the person has waived the right to make an
informal response or request a hearing, has admitted the violation and
owes the ticket penalty amount to RSPA.
6. In Sec. 107.311, paragraph (a) is revised to read as follows:
Sec. 107.311 Notice of probable violation.
(a) The Office of Chief Counsel may serve a notice of probable
violation on a person alleging the violation of one or more provisions
of the Federal hazardous material transportation law or any provision
of this subchapter or subchapter C of this chapter, or any exemption,
or order issued thereunder.
* * * * *
Issued in Washington, DC on February 12, 1996 under authority
delegated in 49 CFR part 1.
Kelley S. Coyner,
Acting Deputy Administrator, Research and Special Programs
Administration.
[FR Doc. 96-4203 Filed 2-23-96; 8:45 am]
BILLING CODE 4910-60-P
Complete official Federal Register PDF
FR Doc. 96-4197 Defense Federal Acquisition Regulation Supplement; Allowability of Costs
[Federal Register Volume 61, Number 38 (Monday, February 26, 1996)]
[Rules and Regulations]
[Pages 7077-7078]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-4197]
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DEPARTMENT OF DEFENSE
48 CFR Part 231
[DFARS Case 95-D309]
Defense Federal Acquisition Regulation Supplement; Allowability
of Costs
AGENCY: Department of Defense (DOD).
ACTION: Interim rule with request for comments.
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SUMMARY: The Director of Defense Procurement has issued an interim rule
amending the Defense Federal Acquisition Regulation Supplement (DFARS)
to prohibit use of fiscal year 1996 funds to reimburse a contractor for
costs paid by the contractor to an employee for a bonus or other
payment in excess of the normal salary paid to the employee, when such
payment is part of restructuring costs associated with a business
combination.
DATES: Effective date: February 26, 1996.
Comment date: Comments on the interim rule should be submitted in
writing to the address shown below on or before April 26, 1996, to be
considered in the formulation of the final rule.
ADDRESSES: Interested parties should submit written comments to:
Defense Acquisition Regulation Council, Attn: Ms. Sandra G. Haberlin,
PDUSD(A&T)DP(DAR), IMD 3D139, 3062 Defense Pentagon, Washington, DC
20301-3062. Telefax number (703) 602-0350. Please cite DFARS Case 95-
D309 in all correspondence related to this issue.
FOR FURTHER INFORMATION CONTACT: Ms. Sandra G. Haberlin (703) 602-0131.
SUPPLEMENTARY INFORMATION:
A. Background
This interim rule adds paragraph (f)(1) to DFARS Section 231.205-6
to implement Section 8122 of the Fiscal Year 1996 Defense
Appropriations Act (Pub. L. 104-61). Section 8122 prohibits DOD from
using fiscal year 1996 funds to reimburse a contractor for costs paid
by the contractor to an employee for a bonus or other payment in excess
of the normal salary paid by the contractor to the employee, when such
payment is part of restructuring costs associated with a business
combination. The interim rule clarifies that the prohibition does not
apply to severance and early retirement incentive payments.
B. Determination To Issue an Interim Rule
A determination has been made under the authority of the Secretary
of Defense to issue this rule as an interim rule. Compelling reasons
exist to promulgate this rule without prior opportunity for public
comment. This rule implements Section 8122 of the Defense
Appropriations Act for Fiscal Year 1996 (Pub. L. 104-61), which was
effective upon enactment on December 1, 1995. However, comments
received in response to the publication of this rule will be considered
in formulating the final rule.
C. Regulatory Flexibility Act
The interim rule is not expected to have a significant economic
impact on a substantial number of small entities within the meaning of
the Regulatory Flexibility Act, 5 U.S.C. 601 et seq., because most
contracts awarded to small entities are awarded on a competitive fixed-
price basis and cost principles, therefore, do not apply.
D. Paperwork Reduction Act
The Paperwork Reduction Act does not apply because the interim rule
does not impose any new reporting or recordkeeping requirements which
require Office of Management and Budget approval under 44 U.S.C. 3501,
et seq.
List of Subjects in 48 CFR Part 231
Government procurement.
Michele P. Peterson,
Executive Editor, Defense Acquisition Regulations Council.
Therefore, 48 CFR part 231 is amended as follows:
1. The authority citation for 48 CFR part 231 continues to read as
follows:
Authority: 41 U.S.C. 421 and 48 CFR Chapter 1.
PART 231--CONTRACT COST PRINCIPLES AND PROCEDURES
2. Section 231.205-6 is amended by adding paragraph (f)(1) to read
as follows:
231.205-6 Compensation for personal services.
* * * * *
(f)(1) Costs for bonuses or other payments, that are in excess of
the normal salary paid by the contractor to the employee and that are
part of
[[Page 7078]]
restructuring costs associated with a business combination, are
unallowable under DOD contracts funded by fiscal year 1996
appropriations (Pub. L. 104-61). This limitation does not apply to
severance payments or early retirement incentive payments. (See
231.205-70(b) for the definitions of ``business combination'' and
``restructuring costs.'')
[FR Doc. 96-4197 Filed 2-23-96; 8:45 am]
BILLING CODE 5000-04-M
Complete official Federal Register PDF
FR Doc. 96-4193 Closure and Restriction Orders
[Federal Register Volume 61, Number 38 (Monday, February 26, 1996)]
[Rules and Regulations]
[Page 7077]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-4193]
=======================================================================
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DEPARTMENT OF THE INTERIOR
Bureau of Land Management
43 CFR Part 8364
[CA-059-1220-00]
Closure and Restriction Orders
AGENCY: Bureau of Land Management (BLM), Interior.
ACTION: Emergency closure of certain public lands to motorized vehicle
use in Shasta County, California.
-----------------------------------------------------------------------
SUMMARY: The BLM is prohibiting persons for an indefinite period from
operating motorized vehicles on approximately 882 acres of public land
that has been acquired from a private landowner through an exchange.
This closure on motorized vehicle use will protect the natural
environment of the public lands until BLM has conducted site specific
inventories on the property and designated suitable roads for motorized
vehicles to travel.
DATES: This emergency motorized vehicle closure will take effect
February 26, 1996.
FOR FURTHER INFORMATION CONTACT:
Charles M. Schultz, Area Manager, Bureau of Land Management, 355
Hemsted Drive, Redding, CA 96002.
SUPPLEMENTARY INFORMATION: The BLM acquired 882 acres of private land
within sections 26, 27, 34 and 36 of T. 31 N., R. 6 W., of the M.D.M on
January 31, 1996 from Sierra Pacific Industries, Inc. Appropriate uses
of this property will be determined, in part, through the preparation
of a management plan for the region. Until this management plan is
completed and appropriate roads and trails are delineated, the four
parcels are closed from entry and use by motorized vehicles. Exceptions
to this closure include: emergency vehicles, fire suppression and
rescue vehicles, BLM operation and maintenance vehicles, law
enforcement vehicles, and other motorized vehicles specifically
approved by an authorized officer of the Bureau of Land Management.
The authority for this closure and rule making is 43 CFR 8364.1.
Any person who fails to comply with a closure order or rule making is
subject to arrest and fines of up to $100.000 and/or imprisonment not
to exceed 12 months.
Charles M. Schultz,
Redding Area Manager.
[FR Doc. 96-4193 Filed 2-23-96; 8:45 am]
BILLING CODE 4310-40-M
Complete official Federal Register PDF
FR Doc. 96-4192 International Child Abduction
[Federal Register Volume 61, Number 38 (Monday, February 26, 1996)]
[Rules and Regulations]
[Pages 7069-7070]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-4192]
=======================================================================
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DEPARTMENT OF STATE
Bureau of Consular Affairs, Overseas Citizens Services
[Public Notice 2337]
22 CFR Part 94
International Child Abduction
AGENCY: Department of State.
ACTION: Final rule.
-----------------------------------------------------------------------
[[Page 7070]]
SUMMARY: This rule amends regulations regarding incoming parental
abduction cases pursuant to the Hague Convention on the Civil Aspects
of International Child Abduction. Incoming cases will be processed by a
non-governmental organization with oversight by the Department of
State.
EFFECTIVE DATE: December 21, 1995.
FOR FURTHER INFORMATION CONTACT:
Leslie Rowe, Director of the Office of Children's Issues, Room 4811,
U.S. Department of State, Washington, D.C. 20520. Tele: 202-647-2688.
SUPPLEMENTARY INFORMATION: Since 1988, the Bureau of Consular Affairs
has served as the U.S. Central Authority under the Hague Convention on
the Civil Aspects of International Child Abduction. As U.S. Central
Authority, the Office of Children's Issues is responsible for
processing all Hague Convention applications seeking the return of
children wrongfully removed or retained in the United States or any
other Hague Convention contracting state. In addition, the U.S. Central
Authority is responsible for facilitating access rights under the
Convention. The Office of Children's Issues processes approximately 700
Hague Convention applications annually; roughly 300 of these cases are
incoming cases, i.e., applications for the return of a child wrongfully
removed to or retained in the United States.
The processing of incoming Hague applications requires case
officers to communicate with foreign Central Authorities about incoming
cases, to determine the whereabouts of children wrongfully taken to the
United States, to attempt to promote voluntary return of abducted
children, and to facilitate the initiation of judicial proceedings with
a view toward securing the return of abducted children. Many of the
case officer functions involve extensive contact with local law
enforcement officials, social service agencies, legal aid organizations
and local bar associations.
The Office of Children's Issues has recently entered into an
agreement with the Department of Justice's Office of Juvenile Justice
and Delinquency Prevention, and the National Center for Missing and
Exploited Children (National Center). Under this agreement, the
National Center will assist the U.S. Central Authority in fulfilling
its responsibilities under the Hague Convention.
The National Center, a non-governmental organization, is a national
resource center and clearinghouse that provides technical assistance to
parents seeking to locate and recover children missing in the United
States. For more than ten years, the National Center has been
performing case management and analysis functions for domestic
abductions; it handles more than 1,200 parental child abduction cases
annually. By agreement with the Department of Justice, the National
Center provides legal technical assistance, maintains a toll-free
hotline as well as an online information network, and operates a photo
distribution service.
Transferring specified case officer functions to the National
Center with respect to incoming Hague Convention cases will result in
the provision of better service to parents seeking the return of
children under the Convention. Parents will benefit from the National
Center's expertise in finding missing children and liaising with
contacts in the local law enforcement and social services communities.
This transfer of case officer functions to the National Center will
not in any way alter the role of the State Department as U.S. Central
Authority under the Hague Convention. The Office of Children's Issues
will continue as the U.S. Central Authority under the Convention and
will retain ultimate responsibility for all incoming cases. Under the
agreement, all inherently governmental functions, including matters of
Hague Convention interpretation and policy direction are to be carried
out by the Department of State. Congressional and White House
correspondence as well as media relations will continue to be handled
by the Office of Children's Issues.
This rule was published as an interim rule in the Federal Register
on December 21, 1995. Comments were requested, and none were received.
It is being adopted without change. This rule was published as an
interim rule rather than a proposed rule because the Department of
State determined that publication of a proposed rule was unnecessary,
as the transfer of responsibility over incoming Hague Convention cases
to the National Center would primarily affect workload distribution and
management of U.S. Central Authority functions. The Department of
State's Office of Children's Issues will continue to perform all
inherently governmental functions of the U.S. Central Authority.
This rule is exempt from E.O. 12866, but nonetheless has been
reviewed and found to be consistent with the objectives and policies
thereof. This rule is not expected to have a significant impact on a
substantial number of small entities under the criteria of the
Regulatory Flexibility Act, 5. U.S.C. 605(b). In addition, this rule
will not impose information collection requirements under the
provisions of the Paperwork Reduction Act of 1995, 44 U.S.C. Chapter
35, as amended. Nor does this rule have federalism implications
warranting the preparation of a Federalism Assessment in accordance
with E.O. 12612. This rule has been reviewed as required by E.O. 12778
and certified to be in compliance therewith.
List of Subjects in 22 CFR Part 94
Infants and children.
For the reasons set forth in the preamble, the interim rule
amending 22 CFR part 94 published on December 21, 1995 (60 FR 66073),
is adopted as a final rule without change.
Dated: February 13, 1996.
Mary A. Ryan,
Assistant Secretary of State for Consular Affairs.
[FR Doc. 96-4192 Filed 2-23-96; 8:45 am]
BILLING CODE 4710-06-M
Complete official Federal Register PDF
FR Doc. 96-4180 Raisins Produced From Grapes Grown in California; Final Free and Reserve Percentages for the 1995-96 Crop Year for Natural (Sun-Dried) Seedless, Zante Currant, and Other Seedless Raisins
[Federal Register Volume 61, Number 38 (Monday, February 26, 1996)]
[Rules and Regulations]
[Pages 7067-7069]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-4180]
=======================================================================
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DEPARTMENT OF AGRICULTURE
Agricultural Marketing Service
7 CFR Part 989
[FV96-989-1IFR]
Raisins Produced From Grapes Grown in California; Final Free and
Reserve Percentages for the 1995-96 Crop Year for Natural (Sun-Dried)
Seedless, Zante Currant, and Other Seedless Raisins
AGENCY: Agricultural Marketing Service, USDA.
ACTION: Interim final rule with request for comments.
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SUMMARY: This interim final rule establishes final free and reserve
percentages for 1995-96 crop Natural (sun-dried) Seedless (NS), Zante
Currant (ZC), and Other Seedless (OS) raisins. The percentages are 79
percent free and 21 percent reserve, 70 percent free and 30 percent
reserve, and 51 percent free and 49 percent reserve for NS, ZC, and OS
raisins, respectively. These percentages are intended to stabilize
supplies and prices and to help counter the destabilizing effects of
the burdensome oversupply situation facing the raisin industry. This
rule was unanimously recommended by the Raisin Administrative Committee
(Committee), the body which locally administers the marketing order.
DATES: This interim final rule becomes effective February 26, 1996, and
applies to all NS, ZC, and OS raisins acquired from the beginning of
the 1995-96 crop year. Comments which are received by March 27, 1996
will be considered prior to any finalization of this interim final
rule.
ADDRESSES: Interested persons are invited to submit written comments
concerning this action. Comments must be sent in triplicate to the
Docket Clerk, Fruit and Vegetable Division, AMS, USDA, room 2525-S,
P.O. Box 96456, Washington, DC 20090-6456, or faxed to 202-720-5698.
Comments should reference the docket number and the date and page
number of this issue of the Federal Register and will be made available
for public inspection in the Office of the Docket Clerk during regular
business hours.
[[Page 7068]]
FOR FURTHER INFORMATION CONTACT: Richard P. Van Diest, Marketing
Specialist, California Marketing Field Office, Fruit and Vegetable
Division, AMS, USDA, 2202 Monterey Street, suite 102B, Fresno,
California 93721; telephone: 209-487-5901 or Mark A. Slupek, Marketing
Specialist, Marketing Order Administration Branch, Fruit and Vegetable
Division, AMS, USDA, room 2523-S, P.O. Box 96456, Washington, DC 20090-
6456; telephone: 202-205-2830.
SUPPLEMENTARY INFORMATION: This interim final rule is issued under
marketing agreement and Order No. 989 (7 CFR part 989), both as
amended, regulating the handling of raisins produced from grapes grown
in California, hereinafter referred to as the ``order.'' The order is
effective under the Agricultural Marketing Agreement Act of 1937, as
amended (7 U.S.C. 601-674), hereinafter referred to as the ``Act.''
The Department of Agriculture (Department) is issuing this rule in
conformance with Executive Order 12866.
This interim final rule has been reviewed under Executive Order
12778, Civil Justice Reform. Under the marketing order provisions now
in effect, final free and reserve percentages may be established for
raisins acquired by handlers during the crop year. This rule
establishes final free and reserve percentages for NS, ZC, and OS
raisins for the 1995-96 crop year, beginning August 1, 1995, through
July 31, 1996. This interim final rule will not preempt any State or
local laws, regulations, or policies, unless they present an
irreconcilable conflict with this rule.
The Act provides that administrative proceedings must be exhausted
before parties may file suit in court. Under section 608c(15)(A) of the
Act, any handler subject to an order may file with the Secretary a
petition stating that the order, any provision of the order, or any
obligation imposed in connection with the order is not in accordance
with law and requesting a modification of the order or to be exempt
therefrom. Such handler is afforded the opportunity for a hearing on
the petition. After the hearing, the Secretary would rule on the
petition. The Act provides that the district court of the United States
in any district in which the handler is an inhabitant, or has his/her
principal place of business, has jurisdiction in equity to review the
Secretary's ruling on the petition, provided a bill in equity is filed
not later than 20 days after the date of the entry of the ruling.
Pursuant to requirements set forth in the Regulatory Flexibility
Act (RFA), the Administrator of the Agricultural Marketing Service
(AMS) has considered the economic impact of this action on small
entities.
The purpose of the RFA is to fit regulatory actions to the scale of
business subject to such actions in order that small businesses will
not be unduly or disproportionately burdened. Marketing orders issued
pursuant to the Act, and rules issued thereunder, are unique in that
they are brought about through group action of essentially small
entities acting on their own behalf. Thus, both statutes have small
entity orientation and compatibility.
There are approximately 20 handlers of California raisins who are
subject to regulation under the raisin marketing order, and
approximately 4,500 producers in the production area. Small
agricultural service firms have been defined by the Small Business
Administration (13 CFR 121.601) as those whose annual receipts (from
all sources) are less than $5,000,000, and small agricultural producers
are defined as those having annual receipts of less than $500,000. No
more than eight handlers, and a majority of producers, of California
raisins may be classified as small entities. Twelve of the 20 handlers
subject to regulation have annual sales estimated to be at least
$5,000,000, and the remaining eight handlers have sales less than
$5,000,000, excluding receipts from any other sources.
The order prescribes procedures for computing trade demands and
preliminary and final percentages that establish the amount of raisins
that can be marketed throughout the season. The regulations apply to
all handlers of California raisins. Raisins in the free percentage
category may be shipped immediately to any market, while reserve
raisins must be held by handlers in a reserve pool for the account of
the Committee. Under the order, reserve raisins may be: Sold at a later
date by the Committee to handlers for free use; used in diversion
programs; exported to authorized countries; carried over as a hedge
against a short crop the following year; or disposed of in other
outlets noncompetitive with those for free tonnage raisins.
While this rule may restrict the amount of NS, ZC, and OS raisins
that enter domestic markets, final free and reserve percentages are
intended to lessen the impact of the oversupply situation facing the
industry and promote stronger marketing conditions, thus stabilizing
prices and supplies and improving grower returns. In addition to the
quantity of raisins released under the preliminary percentages and the
final percentages, the order specifies methods to make available
additional raisins to handlers by requiring sales of reserve pool
raisins for use as free tonnage raisins under ``10 plus 10'' offers,
and authorizing sales of reserve raisins under certain conditions.
The Department's ``Guidelines for Fruit, Vegetable, and Specialty
Crop Marketing Orders'' specifies that 110 percent of recent years'
sales should be made available to primary markets each season before
recommendations for volume regulation are approved. This goal is met by
the establishment of a final percentage which releases 100 percent of
the computed trade demand and the additional release of reserve raisins
to handlers under ``10 plus 10'' offers. The ``10 plus 10'' offers are
two simultaneous offers of reserve pool raisins which are made
available to handlers each season. For each such offer, a quantity of
raisins equal to 10 percent of the prior year's shipments is made
available for free use.
Pursuant to section 989.54(a) of the order, the Committee, which is
responsible for local administration of the order, met on August 15,
1995, to review shipment and inventory data, and other matters relating
to the supplies of raisins of all varietal types. The Committee
computed a trade demand for each varietal type for which a free tonnage
percentage might be recommended. The trade demand is 90 percent of the
prior year's shipments of free tonnage and reserve tonnage raisins sold
for free use for each varietal type into all market outlets, adjusted
by subtracting the carryin of each varietal type on August 1 of the
current crop year and by adding to the trade demand the desirable
carryout for each varietal type at the end of that crop year. As
specified in section 989.154, the desirable carryout for each varietal
type shall be equal to the shipments of free tonnage raisins of the
prior crop year during the months of August, September, and one fourth
of October. If the prior year's shipments are limited because of crop
conditions, the total shipments during that period of time during one
of the three years preceding the prior crop year may be used. In
accordance with these provisions, the Committee computed and announced
1995-96 trade demands of 257,314 tons, 2,208 tons, and 1,047 tons for
NS, ZC, and OS raisins, respectively.
As required under section 989.54(b) of the order, the Committee met
on October 3, 1995, and computed and announced preliminary crop
estimates and preliminary free and reserve percentages for NS and ZC
raisins which released 65 percent of the trade demand since the field
prices had not
[[Page 7069]]
been established, and 85 percent of the trade demand for OS raisins
because the field price had been established. The preliminary crop
estimates and preliminary free and reserve percentages were as follows:
335,118 tons, 50 percent free, and 50 percent reserve for NS raisins;
3,696 tons, 39 percent free, and 61 percent reserve for ZC raisins; and
2,197 tons, 40 percent free, and 60 percent reserve for OS raisins. The
Committee authorized the Committee staff to modify the preliminary
percentages to release 85 percent of the trade demand when the field
prices were established for NS and ZC raisins. The preliminary
percentages for NS and ZC raisins were adjusted soon thereafter to 65
percent free, 35 percent reserve, and 51 percent free and 49 percent
reserve, respectively.
Also at that meeting, the Committee computed and announced
preliminary crop estimates and preliminary free and reserve percentages
for Dipped Seedless, Oleate and Related Seedless, Golden Seedless,
Sultana, Muscat, and Monukka raisins. It determined that the supplies
of these varietal types would be less than or close enough to the
computed trade demands for each variety, and that volume control
percentages would not be necessary to maintain market stability for
these varietal types.
On January 12, 1996, the Committee recommended final percentages of
79 percent free, 21 percent reserve for NS raisins; 70 percent free, 30
percent reserve for ZC raisins; and 51 percent free, 49 percent reserve
for OS raisins.
Pursuant to section 989.54(c), the Committee may adopt interim free
and reserve percentages. Interim percentages may release less than the
computed trade demand for each varietal type. The Committee also
computed interim free and reserve percentages at the January 12, 1996,
meeting.
Interim percentages were announced as 78.75 percent free, 21.25
percent reserve for NS raisins; 69.75 percent free, 30.25 percent
reserve for ZC raisins; and 50.75 percent free, 49.25 percent reserve
for OS raisins. That action released most, but not all, of the computed
trade demand for NS, ZC, and OS raisins.
Under section 989.54(d) of the order, the Committee is required to
recommend to the Secretary, no later than February 15 of each crop
year, final free and reserve percentages which, when applied to the
final production estimate of a varietal type, will tend to release the
full trade demand for any varietal type.
The Committee's final estimate of 1995-96 production of NS raisins
is 325,808 tons. Dividing the computed trade demand of 257,314 tons by
the final estimate of production results in a final free percentage of
79 percent and a final reserve percentage of 21 percent for NS raisins.
The Committee's final estimate of 1995-96 production of ZC raisins
is 3,158 tons. Dividing the computed trade demand of 2,208 tons by the
final estimate of production results in a final free percentage of 70
percent and a final reserve percentage of 30 percent for ZC raisins.
The Committee's final estimate of 1995-96 production of OS raisins
is 2,048 tons. Dividing the computed trade demand of 1,047 tons by the
final estimate of production results in a final free percentage of 51
percent and a final reserve percentage of 49 percent for OS raisins.
The free and reserve percentages established by this interim final
rule will apply uniformly to all handlers in the industry, whether
small or large, and there are no known additional costs incurred by
small handlers. Although raisin markets are limited, they are available
to all handlers, regardless of size. The stabilizing effects of the
percentages impact both small and large handlers positively by helping
them maintain and expand markets.
Based on available information, the Administrator of the AMS has
determined that the issuance of this interim final rule will not have a
significant economic impact on a substantial number of small entities.
After consideration of all relevant information presented,
including the Committee's recommendations and other information, it is
found that this regulation, as hereinafter set forth, will tend to
effectuate the declared policy of the Act.
Pursuant to 5 U.S.C. 553, it is also found and determined that upon
good cause it is impracticable, unnecessary, and contrary to the public
interest to give preliminary notice prior to putting this rule into
effect, and that good cause exists for not postponing the effective
date of this rule until 30 days after publication in the Federal
Register because: (1) The relevant provisions of this part require that
the percentages designated herein for the 1995-96 crop year apply to
all NS, ZC, and OS raisins acquired from the beginning of that crop
year; (2) handlers are currently marketing 1995-96 crop raisins of
these varietal types and this action should be taken promptly to
achieve the intended purpose of making the full trade demand quantities
computed by the Committee available to handlers; (3) handlers are aware
of this action, which was unanimously recommended by the Committee at
an open meeting, and need no additional time to comply with these
percentages; and (4) this interim final rule provides a 30-day period
for written comments and all comments received will be considered prior
to finalization of this interim final rule.
List of Subjects in 7 CFR Part 989
Grapes, Marketing agreements, Raisins, Reporting and recordkeeping
requirements.
For the reasons set forth in the preamble, 7 CFR part 989 is
amended to read as follows:
PART 989--RAISINS PRODUCED FROM GRAPES GROWN IN CALIFORNIA
1. The authority citation for 7 CFR part 989 continues to read as
follows:
Authority: 7 U.S.C. 601-674.
2. Section 989.249 is added to Subpart--Supplementary Regulations
to read as follows:
Note: This section will not appear in the annual Code of Federal
Regulations.
Sec. 989.249 Final free and reserve percentages for the 1995-96 crop
year.
The final percentages for standard Natural (sun-dried) Seedless,
Zante Currant, and Other Seedless raisins acquired by handlers during
the crop year beginning on August 1, 1995, which shall be free tonnage
and reserve tonnage, respectively, are designated as follows:
------------------------------------------------------------------------
Free Reserve
Varietal type percentage percentage
------------------------------------------------------------------------
Natural (sun-dried) Seedless.................... 79 21
Zante Currant................................... 70 30
Other Seedless.................................. 51 49
------------------------------------------------------------------------
Dated: February 20, 1996.
Sharon Bomer Lauritsen,
Deputy Director, Fruit and Vegetable Division.
[FR Doc. 96-4180 Filed 2-23-96; 8:45 am]
BILLING CODE 3410-02-P
Complete official Federal Register PDF
FR Doc. 96-4144 Financial Assistance Rules; Regulatory Reduction
[Federal Register Volume 61, Number 38 (Monday, February 26, 1996)]
[Rules and Regulations]
[Pages 7164-7175]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-4144]
[[Page 7163]]
_______________________________________________________________________
Part III
Department of Energy
_______________________________________________________________________
10 CFR Part 600
Financial Assistance Rules; Regulatory Reduction; Final Rule
Federal Register / Vol. 61, No. 38 / Monday, February 26, 1996 /
Rules and Regulations
[[Page 7164]]
DEPARTMENT OF ENERGY
10 CFR Part 600
RIN 1991-AB23
Financial Assistance Rules; Regulatory Reduction
AGENCY: Department of Energy.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Department of Energy (DOE) today issues a final rule to
amend its Financial Assistance Rules (Rules) to streamline, simplify,
and improve the DOE financial assistance process. The rules have been
rewritten to eliminate coverage that is unnecessary and to retain only
that coverage that is considered suitable for a regulation.
EFFECTIVE DATE: This final rule will be effective March 27, 1996.
FOR FURTHER INFORMATION CONTACT: Cherlyn D. Seckinger, Office of Policy
(HR-51) Office of Procurement and Assistance Management, Department of
Energy, 1000 Independence Avenue SE., Washington, D.C. 20585 (202) 586-
8246.
SUPPLEMENTARY INFORMATION:
I. Background
II. Discussion of Changes to the Proposed Rule
III. Review Under Executive Order 12612
IV. Regulatory Review
V. Review Under the Regulatory Flexibility Act
VI. Review Under the Paperwork Reduction Act
VII. Review Under the National Environmental Policy Act
VIII. Review Under Executive Order 12778
I. Background
In the August 8, 1995 issue of the Federal Register (60 FR 40323),
DOE published a proposed rule to amend its financial assistance rules
by revising Subpart A to simplify and streamline the financial
assistance process in keeping with Departmental and Government-wide
initiatives to improve the way the Department does business. The
changes that are published today with minor modifications primarily
affect DOE internal procedures contained in Subpart A pertaining to the
solicitation, evaluation, and award processes, and have little or no
impact on requirements applicable to applicants and recipients of DOE
financial assistance. In most instances, the amended rule omits
detailed internal procedures for DOE officials, and instead establishes
standards or basic requirements that are of primary interest to members
of the public. Also, the patent, data and copyright provisions in
Subparts A and B have been updated to reflect the recent changes in the
Department of Energy Acquisition Regulations and to clarify how the
Intangible Property provisions in Section 600.136 of Subpart B apply to
commercial organizations.
This rulemaking is part of DOE's ongoing efforts to streamline its
regulatory systems and re-engineer its business processes. In June
1995, the Secretary of Energy Advisory Board's Task Force on Strategic
Energy Research and Development issued a report on the Department's
energy research and development programs. Consistent with the
recommendations provided in this report, the Department currently is
examining the activities, processes, and burdens associated with
awarding and administering all nonlaboratory research and development
contracts and financial assistance awards. As recommendations for
conducting these activities more efficiently and effectively are
developed, it is possible the Department will propose further revisions
to its Financial Assistance Rules.
II. Discussion of Changes to the Proposed Rule
No public comments were received in response to the Notice of
Proposed Rulemaking. However, DOE has made non-substantive
modifications to the proposed rule. Those modifications deserving
explanation are described below. The rule has also been amended to make
some minor technical changes to correct and update citations and cross-
references.
First, the definition of ``project'' will be retained in Section
600.3, Definitions. The reason for retaining it is that the term
``project'' is a basic financial assistance term of art.
Second, it appears that the unsolicited proposal criteria contained
in the existing rule at 600.14(e) were not included in the new Section
600.6, Eligibility, contrary to what was stated in the preamble of the
proposed rule. While not specifically identified as unsolicited
proposal criteria, one of the criteria for justifying noncompetitive
financial assistance under Section 600.6(c)(7) provides the basis for
acceptance of an unsolicited proposal. The criterion states that a
proposed project must be a unique or innovative idea, method, or
approach which would not be eligible for financial assistance under a
recent, current, or planned solicitation, and must be inappropriate for
a competitive solicitation. For purposes of clarification, we have
added the term ``unsolicited proposals'' in Section 600.6(c)(7) in this
criterion.
Third, the address for obtaining the guide on preparation and
submission of unsolicited applications has been included in the rule
under Section 600.10, Form and content of applications. Since DOE is
moving toward the electronic submission of applications, the
requirement in section 600.10(d) for a ``signed application'' has been
revised. The first complete sentence in Section 600.10(d) now reads
``DOE may return an application which is not signed, either in writing
or electronically, by an official authorized to bind the applicant.''
Section 600.16, Legal authority and effect of an award, has been
revised similarly in order to permit the use of an electronic process.
The requirement to send a written review summary to an applicant, upon
request, in Section 600.13(c), Merit review, has been deleted because
it duplicates the requirement in Section 600.19, Notification to
unsuccessful applicants. Section 600.19 requires DOE to provide an
applicant who is not selected for award a written notice which briefly
explains why the application was not selected and offers the applicant
the opportunity for a more detailed explanation upon request. Because
the requirement in Section 600.19 systematically provides information
to an unsuccessful applicant, we have retained that coverage, but
deleted the notification requirement under merit review. Section
600.29(b)(1) has been rewritten to clarify that each fixed obligation
award may neither exceed $100,000 nor exceed one year in length. As
proposed, it could be interpreted to be either/or.
The existing DOE financial assistance rules applied cost sharing
requirements only to cooperative agreements based on the Federal
Nonnuclear Energy Research and Development Act. Since then the Energy
Policy Act of 1992 was enacted which also requires cost sharing for
research, development and demonstration projects carried out under this
Act. The proposed rule extended cost sharing requirements to grants as
a way of leveraging Federal funds in times of declining budgets. While
today's final rule retains this cost sharing policy, it allows for
exceptions to meet specific programmatic needs or requirements on a
single-case or class basis with the approval of the cognizant program
Assistant Secretary or designee.
III. Review Under Executive Order 12612
Executive Order 12612 requires that regulations, rules,
legislation, and any other policy actions be reviewed for any
substantial effects on States, on the relationship between the Federal
Government and the States, or in the distribution of power and
[[Page 7165]]
responsibilities among various levels of Government.
If there are sufficient substantial direct effects, then the
Executive Order requires preparation of a federalism assessment to be
used in all decisions involved in promulgating and implementing a
policy action. Today's rule revises certain policy and procedural
requirements. However, DOE has determined that this rulemaking will not
have a substantial direct effect on the institutional interests or
traditional functions of States.
IV. Regulatory Review
Today's regulatory action has been determined not to be a
``significant regulatory action'' under Executive Order 12866,
``Regulatory Planning and Review,'' (58 FR 51735, October 4, 1993).
Accordingly, today's action was not subject to review under the
Executive Order by the Office of Information and Regulatory Affairs.
V. Review Under the Regulatory Flexibility Act
This rule was reviewed under the Regulatory Flexibility Act of
1980, Public Law 96-354, 94 Stat. 1164, which requires preparation of a
regulatory flexibility analysis for any regulation that will have a
significant economic impact on a substantial number of small entities,
i.e., small businesses, small organizations, and small governmental
jurisdictions. DOE has concluded that the rule only affects small
entities as they apply for and receive financial assistance, and does
not create additional economic impact on small entities as a whole. DOE
certifies that this rule would not have a significant economic impact
on a substantial number of small entities and, therefore, no regulatory
flexibility analysis has been prepared.
VI. Review Under the Paperwork Reduction Act
No information collection or recordkeeping requirements are imposed
upon the public by this rulemaking. Accordingly, no OMB clearance is
required under the Paperwork Reduction Act of 1980, 44 U.S.C. 3501, et
seq., or OMB implementing regulations at 5 CFR Part 1320.
VII. Review Under the National Environmental Policy Act
DOE has concluded that this rule falls into a class of actions
(categorical exclusions A5) that are categorically excluded from
National Environmental Policy Act (NEPA) review because they would not
individually or cumulatively have significant impact on the human
environment, as determined by the Department's regulations (10 CFR Part
1021, Subpart D) implementing the National Environmental Policy Act of
1969 (42 U.S.C. 4321, 4331-4335, 4341-4347 (1976)). Therefore, this
rule does not require an environmental impact statement or an
environmental assessment pursuant to NEPA.
VIII. Review Under Executive Order 12778
Section 2 of Executive Order 12778 instructs each agency to adhere
to certain requirements in promulgating new regulations and reviewing
existing regulations. These requirements, set forth in sections 2 (a)
and (b)(2), include eliminating drafting errors and needless ambiguity,
drafting the regulations to minimize litigation, providing clear and
certain legal standards for affected conduct, and promoting
simplification and burden reduction. Agencies are also instructed to
make every reasonable effort to ensure that the regulation specifies
clearly any preemptive effect, effect on existing Federal law or
regulation, and retroactive effect; describes any administrative
proceedings to be available prior to judicial review and any revisions
for the exhaustion of such administrative proceedings, and defines the
terms. DOE certifies that today's rule meets the requirements of
sections 2 (a) and (b) of Executive Order 12778.
List of Subjects in 10 CFR Part 600
Accounting; Administrative practice and procedure; Government
contracts; Grant programs, Indians, Intergovernmental relations; Loan
programs, Lobbying; Penalties; Reporting and recordkeeping
requirements.
Richard H. Hopf,
Deputy Assistant Secretary for Procurement and Assistance Management.
For the reasons set out in the preamble, Part 600 of Chapter II,
Title 10 of the Code of Federal Regulations is amended as set forth
below:
PART 600--FINANCIAL ASSISTANCE RULES
1. The authority citation for Part 600 continues to read as
follows:
Authority: Secs. 644 and 646, Pub. L. 95-91, 91 Stat. 599 (42
U.S.C. 7254 and 7256); Pub. L. 97-258, 96 Stat. 1003-1005 (31 U.S.C.
6301-6308), unless otherwise noted.
Subpart D--[Removed and Reserved]
2. The existing Subpart D Cooperative Agreements (Secs. 600.300
through 600.307) is removed and reserved.
Part 600 is further amended as set forth below:
Sec. 600.112 [Amended]
3. Section 600.112(c) is amended by revising the parenthetical
phrase ``(see Sec. 600.31 (b) and (c))'' to read ``(see Sec. 600.26 (b)
and (c)).''
4. Section 600.136 is revised to read as follows:
Sec. 600.136 Intangible property.
(a) Recipients that are institutions of higher education,
hospitals, and other non-profit organizations are subject to the
following:
(1) The recipient may copyright any work that is subject to
copyright and was developed, or for which ownership was purchased,
under an award. DOE reserves a royalty-free, nonexclusive and
irrevocable right to reproduce, publish or otherwise use the work for
Federal purposes, and to authorize others to do so.
(2) Recipients are subject to applicable regulations governing
patents and inventions. (See 10 CFR 600.27)
(3) DOE has the right to:
(i) Obtain, reproduce, publish or otherwise use the data first
produced under an award.
(ii) Authorize others to receive, reproduce, publish, or otherwise
use such data for Federal purposes.
(4) Title to intangible property and debt instruments acquired
under an award or subaward vests upon acquisition in the recipient. The
recipient shall use that property for the originally-authorized
purpose, and the recipient shall not encumber the property without
approval of DOE. When no longer needed for the originally authorized
purpose, disposition of the intangible property shall occur in
accordance with the provisions of Sec. 600.134(g).
(b) Recipients that are commercial entities shall follow the
provisions set forth at 10 CFR 600.27.
Sec. 600.204 [Amended]
5. In Sec. 600.204 revise ``Sec. 600.405'' to read
``Sec. 600.205''.
Sec. 600.221 [Amended]
6. In Sec. 600.221(g)(2) revise ``Sec. 600.443(c)'' to read
``Sec. 600.243(c)''.
Sec. 600.224 [Amended]
7. In Sec. 600.224(b)(4) revise ``Sec. 600.425(g) to read
``Sec. 600.225(g)''.
8. In Sec. 600.224(e)(2)(ii) revise ``Sec. 600.422'' to read
``Sec. 600.222''.
Sec. 600.225 [Amended]
9. In paragraph (e) of Sec. 600.225, revise ``Sec. 600.434'' to
read ``Sec. 600.234''.
[[Page 7166]]
10. In paragraph (f) of Sec. 600.225, revise ``Secs. 600.431 and
600.432'' to read ``Secs. 600.231 and 600.232''.
Sec. 600.226 [Amended]
11. In paragraph (c) of Sec. 600.226 revise ``Sec. 600.436'' to
read ``Sec. 600.236''.
Sec. 600.230 [Amended]
12. In paragraph (b) of Sec. 600.230 revise the parenthetical
expression ``(see Sec. 600.422)'' to read ``(see Sec. 600.222)''.
13. In Sec. 600.230(d)(4) revise ``Sec. 600.436'' to read
``Sec. 600.236''.
14. In Sec. 600.230(f)(2) revise ``Sec. 600.422'' to read
``Sec. 600.222''.
Sec. 600.232 [Amended]
15. In Sec. 600.232(c)(3) revise ``Sec. 600.425(a)'' to read
``Sec. 600.225(a)''.
16. In Sec. 600.232((g)(2) revise ``Sec. 600.432(e)'' to read
``Sec. 600.232(e)''.
Sec. 600.236 [Amended]
17. In paragraph (c) introductory text of Sec. 600.236, revise
``Sec. 600.436'' to read ``Sec. 600.236''.
18. In Sec. 600.236(d)(2) revise ``Sec. 600.436(d)(2)(i)'' to read
``Sec. 600.236(d)(2)(i)''.
Sec. 600.237 [Amended]
19. In Sec. 600.237(a)(3) revise ``Sec. 600.442'' to read
``Sec. 600.242''.
20. In Sec. 600.237(c) revise ``Sec. 600.410'', ``Sec. 600.411'',
``Sec. 600.421'', and ``Sec. 600.450'' to read ``Sec. 600.210'',
``Sec. 600.211'', ``Sec. 600.221'', and ``Sec. 600.250'' respectively.
Sec. 600.241 [Amended]
21. In paragraph (b) of Sec. 600.241 revise
``Sec. 600.441(e)(2)(iii)'' to read ``Sec. 600.241(e)(2)(iii)''.
22. In Sec. 600.241(e)(1)(i) revise ``Sec. 600.441(d)'' to read
``Sec. 600.241(d)''.
23. In Sec. 600.241(e)(1)(ii) revise ``Sec. 600.441(b)(3)'' to read
``Sec. 600.241(b)(3)''.
24. In Sec. 600.241(e)(2)(ii) revise ``Sec. 600.41(d)'' to read
``Sec. 600.241(d)''.
25. In Sec. 600.241(e)(2)(iii) revise ``Sec. 600.441(b)'' to read
``Sec. 600.241(b)''.
26. In Sec. 600.241(e)(3) revise ``Sec. 600.441(b)(2)'' to read
``Sec. 600.241(b)(2)''.
Sec. 600.243 [Amended]
27. In paragraph (d) of Sec. 600.243, revise the parenthetical
expression ``(see Sec. 600.435)'' to read ``(see Sec. 600.235)''.
Sec. 600.244 [Amended]
28. In paragraph (b) of Sec. 600.244, revise ``Sec. 600.443'' to
read ``Sec. 600.243''.
Sec. 600.250 [Amended]
29. In Sec. 600.250(b)(5) revise ``Sec. 600.432(f)'' to read
``Sec. 600.232(f)''.
Sec. 600.251 [Amended]
30. In Sec. 600.251 (c) revise ``Sec. 600.442'' to
``Sec. 600.242''.
31. In paragraph (d) of Sec. 600.251 revise ``Secs. 600.431 and
600.432'' to read ``Secs. 600.231 and 600.232''.
32. In paragraph (e) of Sec. 600.251 revise ``Sec. 600.426'' to
read ``Sec. 600.226''.
Sec. 600.402 [Amended]
33. Sec. 600.402 is amended in paragraph (d) by revising
``Secs. 600.25, 600.153, 600.242, and 600.305'' to read ``Secs. 600.21,
600.153, and 600.242''.
Sec. 600.403 [Amended]
34. In paragraph (c), of Sec. 600.403 revise ``Secs. 600.126,
600.226, and 600.305'' to read ``Secs. 600.126 and 600.226''.
Sec. 600.405 [Amended]
35. In Sec. 600.405(b)(2)(ii)(C), revise ``Sec. 600.424 of subpart
E'' to read ``Sec. 600.224 of subpart C''.
Sec. 600.415 [Amended]
36. Section 600.415 is amended, in the first sentence, by revising
``Sec. 600.436 of subpart E'' to read ``Sec. 600.236 of subpart C''.
Part 600 is further amended as set forth below:
37. Subpart A is revised to read as follows:
Subpart A--General
Sec.
600.1 Purpose.
600.2 Applicability.
600.3 Definitions.
600.4 Deviations.
600.5 Selection of award instrument.
600.6 Eligibility.
600.7 Small and disadvantaged and women-owned business
participation.
600.8 Solicitation.
600.9 Notice of program interest.
600.10 Form and content of applications.
600.11 Intergovernmental review.
600.12 Generally applicable requirements.
600.13 Objective merit review.
600.14 Conflict of interest.
600.15 Authorized uses of information.
600.16 Legal authority and effect of an award.
600.17 Contents of award.
600.18 Recipient acknowledgement of award.
600.19 Notification to unsuccessful applicants.
600.20 Maximum DOE obligation.
600.21 Access to records.
600.22 Disputes and appeals.
600.23 Debarment and suspension.
600.24 Noncompliance.
600.25 Suspension and termination.
600.26 Funding.
600.27 Patent and data provisions.
600.28 Restrictions on lobbying.
600.29 Fixed obligation awards.
600.30 Cost sharing.
Subpart A--General
Sec. 600.1 Purpose.
This part implements the Federal Grant and Cooperative Agreement
Act, Pub. L. 95-224, as amended by Pub. L. 97-258 (31 U.S.C. 6301-
6308), and establishes uniform policies and procedures for the award
and administration of DOE grants and cooperative agreements. This
subpart (Subpart A) sets forth the policies and procedures applicable
to the award and administration of grants and cooperative agreements.
Sec. 600.2 Applicability.
(a) Except as otherwise provided by Federal statute or program
rule, this part applies to applications, solicitations, and new,
continuation, and renewal awards (and any subsequent subawards).
(b) Any new, continuation, or renewal award (and any subsequent
subaward) shall comply with any applicable Federal statute, Federal
rule, Office of Management and Budget (OMB) Circular and Governmentwide
guidance in effect as of the date of such award.
(c) Financial assistance to foreign entities is governed, to the
extent appropriate, by this part and by the administrative requirements
and cost principles applicable to their respective recipient type, e.g,
governmental, non-profit, commercial.
Sec. 600.3 Definitions.
Amendment means the written document executed by a DOE contracting
officer that changes one or more terms or conditions of an existing
financial assistance award.
Award means the written document executed by a DOE Contracting
Officer, after an application is approved, which contains the terms and
conditions for providing financial assistance to the recipient.
Budget period means the interval of time, specified in the award,
into which a project is divided for budgeting and funding purposes.
Continuation award means an award for a succeeding or subsequent
budget period after the initial budget period of either an approved
project period or renewal thereof.
Contract means a written procurement contract executed by a
recipient or subrecipient for the acquisition of property or services
under a financial assistance award.
Contracting Officer means the DOE official authorized to execute
awards on behalf of DOE and who is responsible for the business
management and non-program aspects of the financial assistance process.
[[Page 7167]]
DOE Patent Counsel means the Department of Energy Patent Counsel
assisting the Contracting Officer in the review and coordination of
patents and data related items.
Financial Assistance means the transfer of money or property to a
recipient or subrecipient to accomplish a public purpose of support or
stimulation authorized by Federal statute. For purposes of this part,
financial assistance instruments are grants and cooperative agreements
and subawards.
Head of Contracting Activity or HCA means a DOE official with
senior management authority for the award and administration of
financial assistance instruments within one or more DOE organizational
elements.
Nonprofit organization means any corporation, trust, foundation, or
institution which is entitled to exemption under section 501(c)(3) of
the Internal Revenue Code, or which is not organized for profit and no
part of the net earnings of which inure to the benefit of any private
shareholder or individual (except that the definition of ``nonprofit
organization'' at 48 CFR 27.301 shall apply to the use of the patent
clause at Section 600.27).
Objective merit review means a thorough, consistent and independent
examination of applications based on pre-established criteria by
persons knowledgeable in the field of endeavor for which support is
requested.
Program rule means a rule issued by a DOE program office for the
award and administration of financial assistance which may describe the
program's purpose or objectives, eligibility requirements for
applicants, types of program activities or areas to be supported,
evaluation and selection process, cost sharing requirements, etc. These
rules usually supplement the generic policies and procedures for
financial assistance contained in this part.
Project means the set of activities described in an application,
State plan, or other document that is approved by DOE for financial
assistance (whether such financial assistance represents all or only a
portion of the support necessary to carry out those activities.)
Project period means the total period of time indicated in an award
during which DOE expects to provide financial assistance. A project
period may consist of one or more budget periods and may be extended by
DOE.
Recipient means the organization, individual, or other entity that
receives an award from DOE and is financially accountable for the use
of any DOE funds or property provided for the performance of the
project, and is legally responsible for carrying out the terms and
conditions of the award.
Renewal award means an award which adds one or more additional
budget periods to an existing project period.
Research and development means all research activities, both basic
and applied, and all development activities that are supported at
universities, colleges, and other non-profit institutions and
commercial organizations. ``Research'' is defined as a systematic study
directed toward fuller scientific knowledge or understanding of the
subject studied. The term research also includes activities involving
the training of individuals in research techniques where such
activities utilize the same facilities as other research and
development activities and where such activities are not included in
the instruction function. ``Development'' is the systematic use of
knowledge and understanding gained from research directed toward the
production of useful materials, devices, systems, or methods, including
design and development of prototypes and processes.
Sec. 600.4 Deviations.
(a) General. (1) A deviation is the use of any policy, procedure,
form, standard, term, or condition which varies from a requirement of
this part, or the waiver of any such requirement, unless such use or
waiver is authorized or precluded by Federal statute. The use of
optional or discretionary provisions of this part, including special
restrictive conditions used in accordance with Secs. 600.114 and
600.212, are not deviations. Awards to foreign entities and the waiver
of the cost sharing requirements in Sec. 600.30 or the patent
requirements of Sec. 600.27 are not subject to this section.
(2) A single-case deviation is a deviation which applies to one
financial assistance transaction and one applicant, recipient, or
subrecipient only.
(3) A class deviation is a deviation which applies to more than one
financial assistance transaction, applicant, recipient, or
subrecipient.
(b) The DOE officials specified in paragraph (c) of this section
may authorize a deviation only upon a written determination that the
deviation is--
(1) Necessary to achieve program objectives;
(2) Necessary to conserve public funds;
(3) Otherwise essential to the public interest; or
(4) Necessary to achieve equity.
(c) Approval procedures. (1) A deviation request must be in writing
and must be submitted to the responsible DOE Contracting Officer. An
applicant for a subaward or a subrecipient shall submit any such
request through the recipient.
(2) Except as provided in paragraph (c)(3) of this section--
(i) A single-case deviation may be authorized by the responsible
HCA. Any proposed single-case deviation from the requirements of
Sec. 600.27 concerning patents or data shall be referred to the DOE
Patent Counsel for review and concurrence prior to submission to the
HCA.
(ii) A class deviation may be authorized by the Deputy Assistant
Secretary for Procurement and Assistance Management or designee. Any
proposed class deviation from the requirements of Sec. 600.27
concerning patents or data shall be forwarded through the Assistant
General Counsel for Technology Transfer and Intellectual Property or
designee.
(3) Whenever the approval of OMB, other Federal agency, or other
DOE office is required to authorize a deviation, the proposed deviation
must be submitted to the Deputy Assistant Secretary for Procurement and
Assistance Management or designee for concurrence prior to submission
to the authorizing official.
(d) Notice. Whenever a request for a class deviation is approved,
DOE shall publish a notice in the Federal Register at least 15 days
before the class deviation becomes effective. Whenever a class
deviation is contained in a proposed program rule, the preamble to the
proposed rule shall describe the purpose and scope of the deviation.
(e) Subawards. A recipient may use a deviation in a subaward only
with the prior written approval of a DOE Contracting Officer.
Sec. 600.5 Selection of award instrument.
(a) If DOE has administrative discretion in the selection of the
award instrument, the DOE decision as to whether the relationship is
principally one of procurement or financial assistance shall be made
pursuant to the Federal Grant and Cooperative Agreement Act as codified
at 31 U.S.C. 6301-6306. A grant or cooperative agreement shall be the
appropriate instrument, in accordance with this part, when the
principal purpose of the relationship is the transfer of money or
property to accomplish a public purpose of support or stimulation
authorized by Federal statute. In selecting the type of financial
assistance instrument, DOE
[[Page 7168]]
shall limit involvement between itself and the recipient in the
performance of a project to the minimum necessary to achieve DOE
program objectives.
(b) When it is anticipated that substantial involvement will be
necessary between DOE and the recipient during performance of the
contemplated activity, the award instrument shall be a cooperative
agreement rather than a grant. Every cooperative agreement shall
explicitly state the substantial involvement anticipated between DOE
and the recipient during the performance of the project. Substantial
involvement exists if:
(1) Responsibility for the management, control, or direction of the
project is shared by DOE and the recipient; or
(2) Responsibility for the performance of the project is shared by
DOE and the recipient.
(c) Providing technical assistance or guidance of a programmatic
nature to a recipient does not constitute substantial involvement if:
(1) the recipient is not required to follow such guidance;
(2) the technical assistance or guidance is not expected to result
in continuing DOE involvement in the performance of the project; or
(3) The technical assistance or guidance pertains solely to the
administrative requirements of the award.
(d) In cooperative agreements, DOE has the right to intervene in
the conduct or performance of project activities for programmatic
reasons. Intervention includes the interruption or modification of the
conduct or performance of project activities. Suspension or termination
of the cooperative agreement under Secs. 600.162 and 600.243 does not
constitute intervention in the conduct or performance of project
activities.
Sec. 600.6 Eligibility.
(a) General. DOE shall solicit applications for financial
assistance in a manner which provides for the maximum amount of
competition feasible.
(b) Restricted eligibility. If DOE restricts eligibility, an
explanation of why the restriction of eligibility is considered
necessary shall be included in the solicitation, program rule, or
published notice. Except when authorized by statute or program rule, if
the aggregate amount of DOE funds available for award under a
solicitation or published notice is $1,000,000 or more, such
restriction of eligibility shall be supported by a written
determination initiated by the program office and approved by an
official no less than two levels above the initiating program official
and concurred in by the Contracting Officer and legal counsel. Where
the amount of DOE funds is less than $1,000,000, the cognizant HCA and
the Contracting Officer may approve the determination.
(c) Noncompetitive financial assistance. DOE may award a grant or
cooperative agreement on a noncompetitive basis only if the application
satisfies one or more of the following selection criteria:
(1) The activity to be funded is necessary to the satisfactory
completion of, or is a continuation or renewal of, an activity
presently being funded by DOE or another Federal agency, and for which
competition for support would have a significant adverse effect on
continuity or completion of the activity.
(2) The activity is being or would be conducted by the applicant
using its own resources or those donated or provided by third parties;
however, DOE support of that activity would enhance the public benefits
to be derived and DOE knows of no other entity which is conducting or
is planning to conduct such an activity.
(3) The applicant is a unit of government and the activity to be
supported is related to performance of a governmental function within
the subject jurisdiction, thereby precluding DOE provision of support
to another entity.
(4) The applicant has exclusive domestic capability to perform the
activity successfully, based upon unique equipment, proprietary data,
technical expertise, or other such unique qualifications.
(5) The award implements an agreement between the United States
Government and a foreign government to fund a foreign applicant.
(6) Time constraints associated with a public health, safety,
welfare or national security requirement preclude competition.
(7) The proposed project was submitted as an unsolicited proposal
and represents a unique or innovative idea, method, or approach which
would not be eligible for financial assistance under a recent, current,
or planned solicitation, and if, as determined by DOE, a competitive
solicitation would not be appropriate.
(8) The responsible program Assistant Secretary (or official of
equivalent authority), with the approval of the Deputy Assistant
Secretary for Procurement and Assistance Management, determines that a
noncompetitive award is in the public interest. This authority may not
be delegated.
(d) Approval requirements. Determinations of noncompetitive awards
shall be approved, prior to award, by the initiating program official,
by the responsible program Assistant Secretary (or official of
equivalent authority) or designee, who shall be not less than two
organizational levels above that of the project officer, by the
Contracting Officer and shall be concurred in by local legal counsel.
Where the amount of DOE funds is less than $1,000,000 for a
noncompetitive financial assistance award, the determination shall be
approved by the cognizant HCA and the Contracting Officer. Concurrence
for a particular award or class of awards of $1,000,000 or less may be
waived by local legal counsel.
(e) Documentation requirements. A determination of noncompetitive
financial assistance (normally prepared by the responsible program
official) explaining the basis for the proposed noncompetitive award
shall be placed in the award file.
Sec. 600.7 Small and disadvantaged and women-owned business
participation.
(a) DOE encourages the participation in financial assistance awards
of small businesses, including those owned by socially and economically
disadvantaged individuals and women, of historically black colleges,
and of colleges and universities with substantial minority enrollments.
(b) For definitions of the terms in paragraph (a) of this section,
see the Higher Education Act of 1965, and 15 U.S.C. 644, as amended by
the Federal Acquisition Streamlining Act (FASA), and implementing
regulations under FASA issued by the Office of Federal Procurement
Policy.
(c) When entering into contracts under financial assistance awards,
recipients and subrecipients shall comply with the requirements of
Section 600.144 or Section 600.236, as applicable.
Sec. 600.8 Solicitation.
(a) General. A solicitation for financial assistance applications
shall be in the form of a program rule or other publicly available
document which invites the submission of applications by a common due
date or within a prescribed period of time.
(1) A Program Assistant Secretary (or official of equivalent
authority) may annually issue a program notice describing research
areas in which financial assistance is being made available. Such
notice shall also state
[[Page 7169]]
whether the research areas covered by the notice are to be added to
those listed in a previously issued program rule. If they are to be
included, then applications received as a result of the notice may be
treated as having been in response to that previously published program
rule. If they are not to be included, then applications received in
response to the notice are to be treated as unsolicited applications.
Solicitations may be issued by a DOE Contracting Officer or program
office with prior concurrence of the contracting office.
(2) DOE shall publish either a copy or a notice of the availability
of a financial assistance solicitation in the Federal Register. DOE
shall publish solicitations or notices in the Commerce Business Daily
when potential applicants include for-profit organizations or when
there is the potential for significant contracting opportunities under
the resulting financial assistance awards.
(b) Subawards. In accordance with the provisions of the applicable
statute and program rules, if a DOE financial assistance program
involves the award of financial assistance by a recipient to a
subrecipient, the recipient shall provide sufficient advance notice so
that potential subrecipients may prepare timely applications and secure
prerequisite reviews and approvals.
(c) Contents of solicitation. Each solicitation shall provide
information as may be necessary to allow potential applicants to decide
whether to submit an application, to understand how applications will
be evaluated, and to know what the obligations of a recipient would be.
At a minimum, each solicitation must include:
(1) A control number assigned by the issuing DOE office;
(2) The amount of money available for award and, if appropriate,
the expected size of individual awards broken down by areas of priority
or emphasis, and the expected number of awards;
(3) The type of award instrument or instruments to be used;
(4) The Catalog of Federal Domestic Assistance number for the
program;
(5) Who is eligible to apply;
(6) The expected duration of DOE support or the period of
performance;
(7) An application form or the format to be used, location for
application submission, and number of copies required;
(8) The name of the responsible DOE Contracting Officer (or, for
program notices or solicitations issued by the program office, the
program office contact) to contact for additional information, and, as
appropriate, an address where application forms may be obtained;
(9) Whether loans are available under the DOE Minority Economic
Impact (MEI) loan program, 10 CFR part 800, to finance the cost of
preparing a financial assistance application, and, if MEI loans are
available, a general description of the eligibility requirements for
such a loan, a reference to Catalog of Federal Domestic Assistance
Number 81.063, and the name and address of the DOE office from which
additional information and loan application forms can be obtained;
(10) Appropriate periods or due dates for submission of
applications and a statement describing the consequences of late
submission. If programs have established a series of due dates to allow
for the comparison of applications against each other, these dates
shall be indicated in the solicitation;
(11) The types of projects or activities eligible for support;
(12) Evaluation criteria and the weight or relative importance of
each, which may include one or more of the following or other criteria,
as appropriate:
(i) Qualifications of the applicant's personnel who will be working
on the project;
(ii) Adequacy of the applicant's facilities and resources;
(iii) Cost-effectiveness of the project;
(iv) Adequacy of the project plan or methodology;
(v) Management capability of the applicant;
(vi) Sources of financing available to the project. Any requirement
concerning cost sharing shall be clearly stated (See also Sec. 600.30,
Cost Sharing). Cost sharing is generally encouraged. However, unless
cost sharing is required by the solicitation, it shall not be
considered in the evaluation process and shall be considered only at
the time the award is negotiated.
(vii) Relationship of the proposed project to the objectives of the
solicitation;
(13) A listing of program policy factors, if any, indicating the
relative importance of each, if appropriate. Examples of program policy
factors are:
(i) Geographic distribution;
(ii) Diverse types and sizes of applicant entities;
(iii) A diversity of methods, approaches, or kinds of work; and
(iv) Projects which are complementary to other DOE programs or
projects;
(14) References to or copies of:
(i) Statutory authority for the program;
(ii) Applicable rules, including the appropriate subparts of this
part;
(iii) Other terms and conditions applicable to awards to be made
under the solicitation, including allowable and unallowable costs and
reporting requirements;
(iv) Policies and procedures for patents, data, copyrights,
audiovisual productions and exhibits;
(v) Any required assurances not included in the application form;
(15) The deadline for submission of required or optional
preapplications;
(16) Date, time, and location of any briefing for applicants;
(17) Required presubmission reviews and clearances, including a
statement as to whether review under E.O. 12372, ``Intergovernmental
Review of Federal Programs'', is required.
(18) Dates by which selections and awards are expected to be made
and whether unsuccessful applications will be returned to the applicant
or be retained by DOE and for what period of time;
(19) A statement that DOE is under no obligation to pay for any
costs associated with preparation or submission of applications if an
award is not made. If an award is made, such costs may be allowable as
provided in the applicable cost principles (See Secs. 600.127 and
600.222);
(20) A statement that DOE reserves the right to fund, in whole or
in part, any, all, or none of the applications submitted in response to
the solicitation; and
(21) Any other relevant information, including explanatory
information or factual basis for justifications required by this part.
Sec. 600.9 Notice of program interest.
(a) General. (1) DOE may publish periodic Notices of Program
Interest in the Federal Register and other media, as appropriate, which
describes broad, general, technical problems and areas of investigation
for which DOE may award grants or cooperative agreements.
(2) DOE shall evaluate any application submitted under a Notice of
Program Interest as an unsolicited application.
(b) Contents. The notice shall include:
(1) A brief description of the areas of interest for which DOE may
provide financial assistance;
(2) A statement about how resulting applications will be evaluated
and the criteria for selection and funding;
(3) An expiration date with an explanation that such a date does
not represent a common deadline for applications but rather that
applications may be submitted at any time before the notice expires;
and
(4) The location for application submission.
[[Page 7170]]
Sec. 600.10 Form and content of applications.
(a) General. Applications shall be required for all financial
assistance projects or programs.
(b) Forms. Applications shall be on the form or in the format and
in the number of copies specified in a program rule, in the
solicitation, or in these regulations. (See also Secs. 600.112 and
600.210.) For unsolicited applications, a guide for preparation and
submission is available from Field/Headquarters Support Division,
Office of Procurement and Assistance Management, Department of Energy,
1000 Independence Avenue SW., Washington, DC 20585.
(c) Contents of an application. In general, a financial assistance
application shall include:
(1) A facesheet containing basic identifying information. The
facesheet shall be the Standard Form (SF)424 or other approved DOE
application form;
(2) A detailed narrative description of the proposed project,
including the objectives of the project and the applicant's plan for
carrying it out;
(3) A budget with supporting justification; and
(4) Any required preaward assurances.
(d) Incomplete applications. DOE may return an application that:
(1) Is not signed, either in writing or electronically, by an
official authorized to bind the applicant; or
(2) Omits any information or documentation required by statute,
program rule, or the solicitation, if the nature of the omission
precludes review of the application.
(e) Supplemental information. During the review of a complete
application, DOE may request the submission of additional information
only if the information is essential to evaluate the application.
Sec. 600.11 Intergovernmental review.
Intergovernmental review of DOE financial assistance shall be
conducted in accordance with 10 CFR part 1005.
Sec. 600.12 Generally applicable requirements.
(a) Except as expressly exempted by Federal statute or program
rule, recipients and subrecipients of DOE financial assistance shall
comply with all generally applicable requirements to which they are
subject. Generally applicable requirements include, but are not limited
to, the requirements of this part, Federal statutes, the OMB Circulars
and other Governmentwide guidance implemented by this part, Executive
Orders, and the requirements identified in appendix A of this part.
(b) Provisions shall be made to design and construct all buildings,
in which DOE funds are used, to meet appropriate seismic design and
construction standards. Seismic codes and standards meeting or
exceeding the provisions of each of the model codes listed in this
paragraph are considered to be appropriate for purposes of this part.
These codes provide a level of seismic safety that is substantially
equivalent to the National Earthquake Hazards Reduction Program (NEHRP)
Recommended Provisions for the Development of Seismic Regulations for
New Buildings, 1988 Edition (Federal Emergency Management
Administration 222 and 223). Revisions of these model codes that are
substantially equivalent to or exceed the then current or immediately
preceding edition of the NEHRP Recommended Provisions (which are
updated triennially) shall be considered to be appropriate standards.
The model codes are as follows:
(1) 1991 Uniform Building Code, of the International Council of
Building Officials,
(2) 1992 Supplement to the National Building Code, of the Building
Official and Code Administrators International.
(3) 1992 Amendments to the Standard Building Code, of the Southern
Building Code Congress International.
Sec. 600.13 Objective merit review.
(a) General. (1) It is the policy of DOE that any financial
assistance be awarded through a merit-based selection process.
Objective merit review means a thorough, consistent and independent
examination of applications based on pre-established criteria by
persons knowledgeable in the field of endeavor for which support is
requested.
(2) Each program office must establish an objective merit review
system covering the financial assistance programs it administers.
Objective merit review of financial assistance applications is intended
to be advisory and is not intended to replace the authority of the
project/program official with responsibility for deciding whether an
award will be made. It is expected that the cognizant project/program
officer(s) who will select or be in the direct chain of supervision
recommending selection or rejection of applications will not be a part
of the objective review group. The objective merit review system must
set forth the relationship between the reviewing individuals, or the
review committees or groups, program/project management involved with
directly advising the selection official with respect to program/
project policy considerations and the selection official who has the
final decision-making authority. In defining this relationship, the
system must set out, as a minimum, the decision-making and
documentation processes to be followed by the selection official in
accepting or rejecting objective merit review recommendations.
(b) Each formal review system must contain the following elements:
(1) Basic review standards. Applications should undergo an initial
review for conformance with technical and administrative requirements
stated in the notice or solicitation and for funding availability. For
applications which pass the initial review, the DOE evaluation shall be
in accordance with stated evaluation criteria set forth in the
applicable program rule or notice, solicitation, or, where appropriate,
the unsolicited proposal criteria in Sec. 600.6(c)(7).
(2) Applications which have successfully completed an initial
review are normally subjected to an objective merit review by a group
comprised of three or more professionally and technically qualified
persons. This advisory review is limited to technical and/or cost
matters and should be separate from any programmatic review of program/
policy factors involved in making a selection/rejection decision.
(3) The reviewers of any particular application may be any mixture
of federal or non-federal experts, including individuals from within
the cognizant program office, except those involved in approving/
disapproving the application. The DOE shall select external (non-DOE
Federal or non-federal) reviewers on the basis of their professional
qualifications and expertise.
(c) Reviewers with interest in application being reviewed.
Reviewers must comply with the requirements for the avoidance of
conflict of interest established in Sec. 600.14.
(d) Outside reviewers. An outside reviewer shall be required to
sign, either in writing or electronically, a written statement agreeing
to use the application information only for review and to treat it in
confidence except to the extent that the information is available to
the general public without restriction as to its use from any source,
including the applicant. Further, the reviewer shall be required to
agree to comply with any notice or restriction placed on the
application. Upon completion of the review, the reviewer shall return
all copies of the application (or abstracts, if any) to DOE; and unless
authorized by DOE, the reviewer shall not contact the applicant
concerning any aspect of the application.
[[Page 7171]]
Sec. 600.14 Conflict of interest.
Any person who participates in the review of applications for DOE
financial assistance or in the administration of DOE financial
assistance shall comply with 1010.101(a) and 1010.302(a)(1) of the DOE
rules on the conduct of employees and special employees (consultants)
at 10 CFR part 1010. Current and former DOE employees who participate
in any aspect of the financial assistance process shall comply with all
applicable requirements of 10 CFR part 1010.
Sec. 600.15 Authorized uses of information.
(a) General. Information contained in applications shall be used
only for evaluation purposes unless such information is generally
available to the public or is already the property of the Government.
The Trade Secrets Act, 18 U.S.C. 1905, prohibits the unauthorized
disclosure by Federal employees of trade secret and confidential
business information.
(b) Treatment of application information. (1) An application may
include technical data and other data, including trade secrets and/or
privileged or confidential commercial or financial information, which
the applicant does not want disclosed to the public or used by the
Government for any purpose other than application evaluation. To
protect such data, the applicant should specifically identify each page
including each line or paragraph thereof containing the data to be
protected and mark the cover sheet of the application with the
following Notice as well as referring to the Notice on each page to
which the Notice applies:
Notice of Restriction on Disclosure and Use of Data
The data contained in pages ______ of this application have been
submitted in confidence and contain trade secrets or proprietary
information, and such data shall be used or disclosed only for
evaluation purposes, provided that if this applicant receives an
award as a result of or in connection with the submission of this
application, DOE shall have the right to use or disclose the data
herein to the extent provided in the award. This restriction does
not limit the Government's right to use or disclose data obtained
without restriction from any source, including the applicant.
(2) Unless a solicitation specifies otherwise, DOE shall not refuse
to consider an application solely on the basis that the application is
restrictively marked.
(3) Data (or abstracts of data) marked with the Notice under
paragraph (b)(1) of this section shall be retained in confidence and
used by DOE or its designated representatives as specified in
Sec. 600.13 solely for the purpose of evaluating the proposal. The data
so marked shall not be disclosed or used for any other purpose except
to the extent provided in any resulting award, or to the extent
required by law, including the Freedom of Information Act (5 U.S.C.
552) (10 CFR part 1004). The Government shall not be liable for
disclosure or use of unmarked data and may use or disclose such data
for any purpose.
(4) The Government shall obtain unlimited rights in the technical
data contained in any application which results in an award except
those portions of the technical data which the applicant asserts and
properly marks as proprietary data, or which are not directly related
to or will not be utilized in the project and are deleted from the
application with the concurrence of DOE.
(5) The clause at 48 CFR 52.227-23, which applies only to technical
data and not to other data such as privileged or confidential
commercial or financial information shall apply to every award.
Sec. 600.16 Legal authority and effect of an award.
(a) A DOE financial assistance award is valid only if it is in
writing and is signed, either in writing or electronically, by a DOE
Contracting Officer.
(b) DOE funds awarded under a grant or cooperative agreement shall
be obligated as of the date the DOE Contracting Officer signs the
award; however, the recipient is not authorized to incur costs under an
award prior to the beginning date of the budget period shown in the
award except as may be authorized in accordance with Secs. 600.125(e)
or 600.230 of this part. The duration of the DOE financial obligation
shall not extend beyond the expiration date of the budget period shown
in the award unless authorized by a DOE Contracting Officer by means of
a continuation or renewal award or other extension of the budget
period.
Sec. 600.17 Contents of award.
Each financial assistance award shall be made on a Notice of
Financial Assistance Award (DOE F 4600.1) which contains basic
identifying and funding information together with attachments including
a budget, any special terms and conditions, and any other provisions
necessary to establish the respective right, duties, obligation, and
responsibilities of DOE and the recipient, consistent with the
requirements of this part.
Sec. 600.18 Recipient acknowledgement of award.
(a) After signature by the DOE Contracting Officer, the award shall
be sent to the recipient. The recipient shall acknowledge acceptance by
returning a copy signed either in writing or electronically. No DOE
funds shall be disbursed until the award document signed by the
recipient is received by DOE.
(b) In the event a recipient declines an award, DOE shall
deobligate the funds obligated by the award after providing the
applicant with at least two weeks written notice of DOE's intention to
deobligate.
(c) After the recipient acknowledges the award, the terms and
conditions of the award may be amended only upon the written request or
with the written concurrence of the recipient unless the amendment is
one which DOE may make unilaterally in accordance with a program rule
or this part.
Sec. 600.19 Notification to unsuccessful applicants.
DOE shall promptly notify in writing each applicant whose
application has not been selected for award or whose application cannot
be funded because of the unavailability of appropriated funds. If the
application was not selected, the written notice shall briefly explain
why the application was not selected and, if for grounds other than
unavailability of funds, shall offer the unsuccessful applicant the
opportunity for a more detailed explanation upon request.
Sec. 600.20 Maximum DOE obligation.
(a) The maximum DOE obligation to the recipient is--
(1) For monetary awards, the amount shown in the award as the
amount of DOE funds obligated, and
(2) Any designated property.
(b) DOE shall not be obligated to make any additional,
supplemental, continuation, renewal, or other award for the same or any
other purpose.
Sec. 600.21 Access to records.
(a) In addition to recipient and subrecipient responsibilities
relative to access to records specified in Secs. 600.153 and 600.242,
for any negotiated contract or subcontract in excess of $10,000 under a
grant or cooperative agreement, DOE, the Comptroller General of the
United States, the recipient and the subrecipient (if the contract was
awarded under a financial assistance subaward), or any of their
authorized representatives shall have the right of access to any books,
documents, papers, or other records of the contractor or subcontractor
which are pertinent to
[[Page 7172]]
that contract or subcontract, in order to make audit, examination,
excerpts, and copies.
(b) The right of access may be exercised for as long as the
applicable records are retained by the recipient, subrecipient,
contractor, or subcontractor.
Sec. 600.22 Disputes and appeals.
(a) Informal dispute resolution. Whenever practicable, DOE shall
attempt to resolve informally any dispute over the award or
administration of financial assistance. Informal resolution, including
resolution through an alternative dispute resolution mechanism, shall
be preferred over formal procedures available in 10 CFR Part 1024, to
the extent practicable.
(b) Alternative dispute resolution (ADR). Before issuing a final
determination in any dispute in which informal resolution has not been
achieved, the Contracting Officer shall suggest that the other party
consider the use of voluntary consensual methods of dispute resolution,
such as mediation. The DOE dispute resolution specialist is available
to provide assistance for such disputes, as are trained mediators of
other federal agencies. ADR may be used at any stage of a dispute.
(c) Final determination. Whenever a dispute is not resolved
informally or through an alternative dispute resolution process, DOE
shall mail (by certified mail) a brief written determination signed by
a Contracting Officer, setting forth DOE's final disposition of such
dispute. Such determination shall contain the following information:
(1) A summary of the dispute, including a statement of the issues
and of the positions taken by the Department and the party or parties
to the dispute; and
(2) The factual, legal and, if appropriate, policy reasons for
DOE's disposition of the dispute.
(d) Right of appeal. (1) Except as provided in paragraph (f)(1) of
this section, the final determination under paragraph (c) of this
section may be appealed to the Financial Assistance Appeals Board (the
Board) in accordance with the procedures set forth in 10 CFR part 1024.
(2) If the final determination under paragraph (c) of this section
involves a dispute over which the Board has jurisdiction as provided in
paragraph (f)(2) of this section, the Contracting Officer's
determination shall state that, with respect to such dispute, the
determination shall be the final decision of the Department unless,
within 60 days, a written notice of appeal is filed.
(3) If the final determination under paragraph (c) of this section
involves a dispute over which the Board has no jurisdiction as provided
in paragraph (f)(1) of this section, the Contracting Officer's
determination shall state that, effective immediately or on a later
date specified therein, the determination shall, with respect to such
dispute, be the final decision of the Department.
(e) Effect of appeal. The filing of an appeal with the Board shall
not stay any determination or action taken by DOE which is the subject
of the appeal. Consistent with its obligation to protect the interests
of the Federal Government, DOE may take such authorized actions as may
be necessary to preserve the status quo pending decision by the Board,
or to preserve its ability to provide relief in the event the Board
decides in favor of the appellant.
(f) Review on appeal. (1) The Board shall have no jurisdiction to
review:
(i) Any preaward dispute (except as provided in paragraph
(f)(2)(ii) of this section), including use of any special restrictive
condition pursuant to Secs. 600.114 or 600.212;
(ii) DOE denial of a request for a deviation under Secs. 600.4,
600.103, or 600.205 of this part;
(iii) DOE denial of a request for a budget revision or other change
in the approved project under Secs. 600.125, 600.127, 600.222, or
600.230 of this part or under another term or condition of the award;
(iv) Any DOE action authorized under Secs. 600.162(a) (1), (2), (3)
or (5); or Secs. 600.243 (a)(1), (a)(3) for suspensions only; or
Sec. 600.162(a)(4) or Sec. 600.243(a)(4) for actions disapproving
renewal applications or other requests for extension of time or
additional funding for the same project when related to recipient
noncompliance, or such actions authorized by program rule;
(v) Any DOE decision about an action requiring prior DOE approval
under Sec. 600.144, or Sec. 600.236 of this part or under another term
or condition of the award;
(vi) A DOE decision not to make a continuation award, which
decision is based on the insufficiency of available appropriations;
(vii) Any matter which is under the jurisdiction of the Patent
Compensation Board (10 CFR 780.3);
(viii) Any matter which may be heard by the Invention Licensing
Appeals Board (10 CFR 781.65 and 781.66); and
(ix) Any other dispute not described in paragraph (f)(2) of this
section.
(2) In addition to any right of appeal established by program rule,
or by the terms and conditions (not inconsistent with paragraph (f)(1)
of this section) of an award, the Board shall have jurisdiction to
review:
(i) A DOE determination that the recipient has failed to comply
with the applicable requirements of this part, the program statute or
rules, or other terms and conditions of the award;
(ii) A DOE decision not to make a continuation award based on any
of the determinations described in paragraph (f)(2)(i) of this section;
(iii) Termination of an award for cause, in whole or in part, by
DOE;
(iv) A DOE determination that an award is void or invalid;
(v) The application by DOE of an indirect cost rate; and
(vi) DOE disallowance of costs.
(3) In reviewing disputes authorized under paragraph (f)(2) of this
section, the Board shall be bound by the applicable law, statutes, and
rules, including the requirements of this part, and by the terms and
conditions of the award.
(4) The decision of the Board shall be the final decision of the
Department.
Sec. 600.23 Debarment and suspension.
Applicants, recipients, subrecipients, and contractors under
financial assistance awards may be debarred and suspended for the
causes and in accordance with the procedures set forth in 10 CFR part
1036.
Sec. 600.24 Noncompliance.
(a) Except for noncompliance with nondiscrimination requirements
under 10 CFR part 1040, whenever DOE determines that a recipient has
not complied with the applicable requirements of this part, with the
requirements of any applicable program statute or rule, or with any
other term or condition of the award, a DOE Contracting Officer shall
provide to the recipient (by certified mail, return receipt requested)
a written notice setting forth:
(1) The factual and legal bases for the determination of
noncompliance;
(2) The corrective actions and the date (not less than 30 days
after the date of the notice) by which they must be taken.
(3) Which of the actions authorized under Secs. 600.122(n),
600.162(a) or Sec. 600.243(a) of this part DOE may take if the
recipient does not achieve compliance within the time specified in the
notice, or does not provide satisfactory assurances that actions have
been initiated which will achieve compliance in a timely manner.
(b) DOE may take any of the actions set forth in Sec. 600.121(n,),
Sec. 600.162(a),
[[Page 7173]]
or Sec. 600.243(a) of this part concurrent with the written notice
required under paragraph (a) of this section or with less than 30 days
written notice to the recipient whenever:
(1) There is evidence the award was obtained by fraud;
(2) The recipient ceases to exist or becomes legally incapable of
performing its responsibilities under the financial assistance award;
or
(3) There is a serious mismanagement or misuse of financial
assistance award funds necessitating immediate action.
Sec. 600.25 Suspension and termination.
(a) Suspension and termination for cause. DOE may suspend or
terminate an award for cause on the basis of:
(1) a noncompliance determination under Secs. 600.24, 600.122(n),
600.162(a), or Sec. 600.243(a); or
(2) an suspension or debarment of the awardee under Sec. 600.23.
(b) Notification requirements. Except as provided in Sec. 600.24,
600.162(a), or Sec. 600.243(a) before suspending or terminating a award
for cause, DOE shall mail to the awardee (by certified mail, return
receipt requested) a separate written notice in addition to that
required by Secs. 600.24(a), 600.162(a), or Sec. 600.243(a) at least
ten days prior to the effective date of the suspension or termination.
Such notice shall include, as appropriate:
(1) The factual and legal bases for the suspension or termination;
(2) The effective date or dates of the DOE action;
(3) If the action does not apply to the entire award, a description
of the activities affected by the action;
(4) Instructions concerning which costs shall be allowable during
the period of suspension, or instructions concerning allowable
termination costs, including in either case, instructions concerning
any subgrants or contracts;
(5) Instructions concerning required final reports and other
closeout actions for terminated awards (see Secs. 600.170 through
600.173 and Secs. 600.250 through 600.252);
(6) A statement of the awardee's right to appeal a termination for
cause pursuant to Sec. 600.22; and
(7) The dated signature of a DOE Contracting Officer.
(c) Suspension. (1) Unless DOE and the awardee agree otherwise, no
period of suspension shall exceed 90 days.
(2) DOE may cancel the suspension at any time, up to and including
the date of expiration of the period of suspension, if the awardee
takes satisfactory corrective action before the expiration date of the
suspension or gives DOE satisfactory evidence that such corrective
action will be taken.
(3) If the suspension has not been cancelled by the expiration date
of the period of suspension, the awardee shall resume the suspended
activities or project unless, prior to the expiration date, DOE
notifies the awardee in writing that the period of suspension shall be
extended consistent with paragraph (c)(1) of this section or that the
award shall be terminated.
(4) As of the effective date of the suspension, DOE shall withhold
further payments and shall allow new obligations incurred by the
awardee during the period of suspension only if such costs were
authorized in the notice of suspension or in a subsequent letter.
(5) If the suspension is cancelled or expires and the award is not
terminated, DOE shall reimburse the awardee for any authorized
allowable costs incurred during the suspension and, if necessary, may
amend the award to extend the period of performance.
(d) Termination by mutual agreement. In addition to any situation
where a termination for cause pursuant to Secs. 600.24, 600.160 through
600.162 or Secs. 600.243 through 600.244 is appropriate, either DOE or
the awardee may initiate a termination of an award (or portion thereof)
as described in this paragraph. If the awardee initiates a termination,
the awardee must notify DOE in writing and specify the awardee's
reasons for requesting the termination, the proposed effective date of
the termination, and, in the case of a partial termination, a
description of the activities to be terminated, and an appropriate
budget revision. DOE shall terminate an award or portion thereof under
this paragraph only if both parties agree to the termination and the
conditions under which it shall occur. If DOE determines that the
remaining activities under a partially terminated award would not
accomplish the purpose for which the award was originally awarded, DOE
may terminate the entire award.
(e) Effect of termination. The awardee shall incur no new
obligations after the effective date of the termination of an award (or
portion thereof), and shall cancel as many outstanding obligations as
possible. DOE shall allow full credit to the awardee for the DOE share
of noncancellable obligations properly incurred by the awardee prior to
the effective date of the termination.
(f) Subgrants. Awardees shall follow the policies and procedures in
this section and in Secs. 600.24, 600.160 through 600.162 or
Secs. 600.243 through 600.244 for suspending and terminating subgrants.
Sec. 600.26 Funding.
(a) General. The project period during which DOE expects to provide
award support for an approved project shall be specified on the Notice
of Financial Assistance Award (DOE Form 4600.1).
(b) Budget period and continuation awards. If the project period is
12 months or less, the budget period and the project period shall be
coextensive. Multiyear awards, including formula awards, shall
generally be funded annually within the approved project period.
Funding for each budget period within the project period shall be
contingent on DOE approval of a continuation application submitted in
accordance with a schedule specified by DOE. A continuation application
shall include:
(1) A statement of technical progress or status of the project to
date;
(2) A detailed description of the awardee's plans for the conduct
of the project during the coming year; and
(3) A detailed budget for the upcoming budget period, including an
estimate of unobligated balances. A detailed budget need not be
submitted if the new or renewal application contained future-year
budgets sufficiently detailed to allow DOE to review and approve the
categories and elements of cost. Should the award have a change in
scope or significant change in the budget, DOE may request a detailed
budget.
(4) DOE shall review a continuation application for the adequacy of
the awardee's progress and planned conduct of the project in the
subsequent budget period. DOE shall not require a continuation
application to compete against any other application. The amount and
award of continuation funding is subject to the availability of
appropriations.
(c) Renewal awards. Discretionary renewal awards may be made either
on the basis of a solicitation or on a noncompetitive basis. If DOE
proposes to restrict eligibility for a discretionary renewal award to
the incumbent grantee, the noncompetitive award must be justified in
accordance with Sec. 600.6(b)(2). Renewal applications must be
submitted no later than 6 months prior to the scheduled expiration of
the project period unless a program rule or other published instruction
establishes a different application deadline.
(d) Extensions. Unless otherwise specified in the award terms and
conditions, recipients of financial assistance awards, except
recipients of SBIR awards (See Sec. 600.181), may extend the expiration
date of the final budget period of the project (thereby extending the
project period) if
[[Page 7174]]
additional time beyond the established expiration date is needed to
assure adequate completion of the original scope of work within the
funds already made available. A single extension, which shall not
exceed twelve (12) months, may be made for this purpose, and must be
made prior to the originally established expiration date. The recipient
must notify the cognizant DOE Contracting Officer in the awarding
office in writing within ten (10) days of making the extension.
Sec. 600.27 Patent and data provisions.
(a) General. Financial assistance shall be awarded and administered
by DOE in compliance with the patent and data provisions of this
section (See also Secs. 600.136 and 600.234.) To the extent not
otherwise provided in this part, the policies, procedures and clauses
referenced for contracts in 48 CFR part 927 and 41 CFR part 9-9 shall
normally be applicable to the award and administration of Departmental
grants and cooperative agreements. Copies of 41 CFR part 9-9 are
available by contacting the DOE Patent Counsel.
(b) Required clauses. In all solicitations and awards both for the
support of research, development, and demonstration and for other
efforts, the DOE Contracting Officer shall consult the DOE Patent
Counsel for applicable patent and data clauses from those listed below
and/or for modifications thereto. In reading each 48 CFR part 27 and 48
CFR part 952 patent and data clause selected for inclusion in a
solicitation or award, the term ``contract'' when referring to a prime
contract shall be read as ``award.'' The term ``contractor'' shall be
read as referring to the ``awardee.'' The term ``subcontract'' shall be
read as ``subaward or a procurement contract under an award or subaward
and/or a procurement subcontract under an awardee's or subawardee's
contract.'' The term ``Acquisition'' with respect to the Long Form
Patent Rights Clause shall be read as ``Retention.'' The terms
``offerors'' and ``quoters'' shall be read as ``applicants,'' and
``proposal'' and ``quotation'' shall be read as ``application.''
(1) Patent clauses. (i) (Short Form Patent Clause). Incorporate the
clause at 48 CFR 952.227-11 for awards to a domestic small business
firm or nonprofit organization as defined at 48 CFR 27.301. In
accordance with 35 U.S.C. 202(a)(ii), the DOE may issue an exceptional
circumstances determination. To implement any exceptional circumstances
determination, DOE will modify 48 CFR 952.227-11 to retain greater
rights in subject inventions. Such modifications will be only to the
extent necessary to implement the exceptional circumstances
determination.
(ii) (Long Form Patent Clause). For awards to a large business firm
or other organization, other than a domestic small business firm or
nonprofit organization as set forth in 48 CFR 27.301, incorporate the
clause at 48 CFR 952.227-13.
(iii) The notice of Right to Request Patent Waiver at 48 CFR
952.227-84 shall also be inserted in all solicitations to advise
applicants of their rights to request in advance of, or within 30 days
after the award is signed, a waiver of all or any part of the rights of
the United States with respect to subject inventions. For unsolicited
applications, DOE shall provide this notice to the applicant prior to
award.
(2) Data Clauses (includes copyright provisions) (i) Rights in
Data--General. (A) Incorporate 48 CFR 52.227-14 with Alternates I and
V. Solicitations shall also include the Representation of Limited
Rights Data and Restricted Computer Software clause at 48 CFR 52.227-
15.
(B) In awards for grants and cooperative agreements with
institutions of higher education, hospitals, and other non-profit
organizations, the following paragraph (c) will be used in lieu of the
provisions in 48 CFR 52.227-14(c):
(c) Copyright. (1) Data first produced in the performance of the
award. Except as otherwise specifically provided in this award, the
recipient may establish claim to copyright subsisting in any data
first produced in the performance of this award. When claim to
copyright is made, the Recipient shall affix the applicable
copyright notice of 17 U.S.C. 401 or 402 and acknowledgement of
Government sponsorship (including award number) to the data when
such data are delivered to the Government, as well as when the data
are published or deposited for registration as a published work in
the U.S. Copyright Office. The recipient grants to the Government a
royalty-free, nonexclusive and irrevocable right to reproduce,
publish, or otherwise use the work for Federal purposes, and to
authorize others to do so. The right to publish includes the right
to publicly distribute. The right to use the work for Federal
purposes includes the right to prepare derivative works.
(C) For grants and cooperative agreements with commercial
organizations, foreign governments, organizations under the
jurisdiction of foreign governments, and international organizations,
the provisions of the following paragraph (d)(3) shall be used in
addition to the provisions in 48 CFR 52.227-14:
(d)(3) The Recipient agrees not to establish claim to copyright
in computer software first produced in the performance of this award
without prior written permission of the Contracting Officer. When
such permission is granted, the Contracting Officer shall specify
appropriate terms to assure dissemination of the software. The
recipient shall promptly deliver to the Contracting Officer or to
the DOE Patent Counsel designated by the Contracting Officer a duly
executed and approved instrument fully confirmatory of all rights to
which the Government is entitled, and other terms pertaining to the
computer software to which claim to copyright is made.
(D) If programmatic needs on a particular award require the
delivery to the Government of limited rights data or restricted
computer software, Alternates II or III of 48 CFR 52.227-14 shall also
be added.
(ii) Restriction on Disclosure and Use of Data. Insert the Notice
at Sec. 600.15(b)(1) in all solicitations.
(iii) Rights to Application Data. As discussed at
Sec. 600.15(b)(5), incorporate 48 CFR 52.227-23.
(iv) Additional data requirements. Incorporate 48 CFR 52.227-16. In
the event all technical data requirements are known in advance of and
are set forth in the agreement or, the award is for the performance of
basic or applied research and is to be performed solely by a university
or college as discussed in 48 CFR 27.406(b), 48 CFR 52.227-16 does not
need to be incorporated.
(3) Authorization and consent. Incorporate 48 CFR 52.227-1 or
Alternates I or II, as appropriate, in accordance with the guidance in
48 CFR 927.201-1 and 48 CFR 27.201.
(4) Patent indemnity. Incorporate the clause set forth in 48 CFR
52.227-3, as appropriate, in accordance with the guidance in 48 CFR
27.203-1 and 48 CFR 27.203-3.
(5) Filing of Patent Applications-Classified Subject Matter.
Incorporate the following paragraphs in any solicitation or award which
covers, or is likely to cover, classified subject matter:
Classified Inventions
(a) The recipient shall not file or cause to be filed on any
invention or discovery conceived or first actually reduced to
practice in the course of or under this award in any country other
than the United States, an application or registration for a patent
without first obtaining written approval of the Contracting Officer.
(b) When filing a patent application in the United States on any
invention or discovery conceived of or first actually reduced to
practice in the course of or under this award, the subject matter of
which is classified for reasons of security, the awardee shall
observe all applicable security regulations covering the
transmission of classified subject matter. When transmitting the
patent application to the United States Patent and Trademark
[[Page 7175]]
Office, the awardee shall, by separate letter, identify by agency and
agreement number the award(s) which require security classification
markings to be placed on the application.
(6) Notice and Assistance Regarding Patent and Copyright
Infringement. Incorporate the clause at 48 CFR 52.227-2, in accordance
with the guidance in 48 CFR 27.202, in all awards in excess of $100,000
for construction, research, development, and demonstration work which
is to be performed within the United States, its possessions, or Puerto
Rico.
(7) Royalty Information. Incorporate 48 CFR 52.227-6.
(8) Refund of Royalties. As discussed in 48 CFR 927.206,
incorporate the clause at 48 CFR 952.227-9 in solicitations and awards
where the Contracting Officer believes royalties will have to be paid
by the awardees or subawardee or contractor at any tier.
(9) Subawards and contracts under award. The recipient shall
include the applicable clauses of this section in any subaward or
contract awarded under the award and assure that the applicable clauses
are also included by subrecipients in contracts.
Sec. 600.28 Restrictions on lobbying.
Procedures regarding restrictions on lobbying activities of
applicants and recipients are contained in 10 CFR 601.110.
Sec. 600.29 Fixed obligation awards.
(a) General. This section contains provisions applicable to the
award of financial assistance instruments on a fixed amount basis.
Under a fixed obligation award, funds are issued in support of a
project without a requirement for Federal monitoring of actual costs
subsequently incurred.
(b) Provisions applicable to fixed obligation awards. Financial
assistance awards may be made on a fixed obligation basis subject to
the following requirements:
(1) Each fixed obligation award may neither exceed $100,000 nor
exceed one year in length.
(2) Programs which require mandatory cost sharing are not eligible.
(3) Proposed costs must be analyzed in detail to ensure consistency
with applicable cost principles.
(4) Budget categories are not stipulated in making an award.
However, budgets are submitted by an applicant and reviewed for
purposes of establishing the amount to be awarded.
(5) Payments must be made in the same manner as other financial
assistance awards, except that when determined appropriate by the
cognizant program official and contracting officer a lump sum payment
may be made.
(6) Recipients must certify in writing to the contracting officer
at the end of the project that the activity was completed or the level
of effort was expended, however should the activity or effort not be
carried out, the recipient would be expected to make appropriate
reimbursements.
(7) Periodic reports may be established for each award so long as
they are not more frequently than quarterly.
(8) Changes in principal investigator or project leader, scope of
effort, or institution, must receive the prior approval of the
Department.
Sec. 600.30 Cost sharing.
In addition to the requirements of Sec. 600.123 or Sec. 600.224,
the following requirements apply to research, development, and
demonstration projects:
(a) When DOE awards financial assistance for research, development,
and demonstration projects where the primary purpose of the project is
the ultimate commercialization and utilization of technology by the
private sector and when there are reasonable expectations that the
recipient will receive significant present or future economic benefits
beyond the instant award as a result of the performance of the project,
cost sharing shall be required. Unless the cost sharing is required by
statute, a waiver of the requirement on a single-case or class basis
may be approved by the cognizant Program Assistant Secretary or
designee.
(b) Except as provided in section 3002 of the Energy Policy Act of
1992, 42 U.S.C. 13542, or program rule, DOE will decide, on a case-by-
case basis, the amount of cost sharing required for a particular
project.
(c) Factors in addition to those specified in Sec. 600.123 or
Sec. 600.224, which may be considered when negotiating cost sharing for
research, development, and demonstration projects include the potential
benefits to a recipient resulting from the project and the length of
time before a project is likely to be commercially successful.
[FR Doc. 96-4144 Filed 2-23-96; 8:45 am]
BILLING CODE 6450-01-P
Complete official Federal Register PDF
FR Doc. 96-4115 Supplemental Standards of Ethical Conduct for Employees of the Equal Employment Opportunity Commission
[Federal Register Volume 61, Number 38 (Monday, February 26, 1996)]
[Rules and Regulations]
[Pages 7065-7067]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-4115]
========================================================================
Rules and Regulations
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains regulatory documents
having general applicability and legal effect, most of which are keyed
to and codified in the Code of Federal Regulations, which is published
under 50 titles pursuant to 44 U.S.C. 1510.
The Code of Federal Regulations is sold by the Superintendent of Documents.
Prices of new books are listed in the first FEDERAL REGISTER issue of each
week.
========================================================================
Federal Register / Vol. 61, No. 38 / Monday, February 26, 1996 /
Rules and Regulations
[[Page 7065]]
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
5 CFR Chapter LXII
29 CFR Parts 1600 and 1650
RIN 3209-AA15
Supplemental Standards of Ethical Conduct for Employees of the
Equal Employment Opportunity Commission
AGENCY: Equal Employment Opportunity Commission (EEOC or Commission).
ACTION: Interim rule with request for comments.
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SUMMARY: The Equal Employment Opportunity Commission, with the
concurrence of the Office of Government Ethics (OGE), is issuing a
regulation for employees of EEOC that supplements the Standards of
Ethical Conduct for Employees of the Executive Branch issued by OGE.
The EEOC is also repealing its existing agency standards of conduct
regulations that have been superseded by OGE's Standards of Ethical
Conduct, OGE's financial disclosure regulation and this interim rule.
DATES: This rule is effective on February 26, 1996. Written comments on
the interim rule must be received on or before April 26, 1996.
ADDRESSES: Comments should be submitted to the Office of the Executive
Secretariat, Equal Employment Opportunity Commission, 1801 L Street,
NW., Washington, DC 20507. Copies of comments submitted by the public
will be available for review at the Commission's Library, room 6502,
1801 L Street, NW., Washington, DC between the hours of 9:30 a.m. and
5:00 p.m.
FOR FURTHER INFORMATION CONTACT:
Nicholas M. Inzeo, Associate Legal Counsel, Thomas J. Schlageter,
Assistant Legal Counsel, or Kathleen Oram, Senior Attorney, at (202)
663-4669 or TDD (202) 663-7026. This notice is also available in the
following formats: large print, braille, audio tape and electronic file
on computer disk. Requests for this notice in an alternative format
should be made to EEOC's Publications Center at 1-800-669-3362.
SUPPLEMENTARY INFORMATION:
I. Background
On August 7, 1992, the Office of Government Ethics published the
Standards of Ethical Conduct for Employees of the Executive Branch
(Standards) for codification at 5 CFR part 2635. See 57 FR 35006-35067,
as corrected at 57 FR 48557 and 57 FR 52583 with an additional grace
period extension at 59 FR 4779-4780. The Standards, effective February
3, 1993, set uniform ethical conduct standards applicable to all
executive branch personnel.
Section 2635.105 of the uniform Standards authorizes agencies, with
the concurrence of OGE, to publish agency-specific supplemental
regulations that are necessary to properly implement their respective
ethics programs. The Commission, with OGE's concurrence, has determined
that the following interim supplemental rule is necessary for
successful implementation of its ethics program.
II. Analysis of the Regulations
Section 7201.101 General
Section 7201.101 explains that the regulations apply to all
employees of the EEOC, including members of the Commission and the
General Counsel, and that they supplement the OGE Standards.
Section 7201.102 Prohibited Outside Employment
5 CFR 2635.802 provides that an employee shall not engage in
outside employment if it is prohibited by agency supplemental
regulation. The Commission is issuing Sec. 7201.102 as a supplemental
regulation. This section details three categories of prohibited outside
employment for EEOC employees. First, the section prohibits EEOC
employees from engaging in any outside employment with persons
currently and substantially affected by the employee's performance of
his or her official duties because the person is a party or
representative of a party to a particular matter involving specific
parties. This provision prohibits employees from working for a charging
party, respondent, or attorney representing either. Second, the section
prohibits EEOC employees from receiving any compensation for
representational services or the rendering of advice or analysis
regarding any equal employment law or its application. Finally, the
section prohibits EEOC employees from engaging in outside employment
involving any particular matter pending at EEOC or any equal employment
opportunity case in which EEOC or the Federal government is a party.
This final prohibition is not intended to prevent EEOC employees from
providing behind-the-scenes assistance (e.g., conducting legal
research, drafting documents, giving advice or other non-advocacy work)
to immediate family members in matters pending at EEOC or any equal
employment opportunity case in which EEOC or the Federal government is
a party. The Commission has determined that these three prohibitions,
which are similar to prohibitions that have applied to EEOC employees
under superseded 29 CFR 1600.735-204, will help to ensure that
reasonable persons will not questions the impartiality and objectivity
of EEOC's employees.
While the second and third prohibitions of this section do no apply
to special Government employees, the prior approval section discussed
below does apply to them. This acknowledges the transitory or part-time
nature of the service special Government employees provide EEOC, but
also enables EEOC to carefully review all outside employment interests
of special Government employees on a case-by-case basis to ensure that
violations of applicable statutes and regulations do not occur.
Section 7201.103 Prior Approval for Outside Employment
Under 5 CFR 2635.803, agencies may, by supplemental regulation,
require employees to obtain prior approval before engaging in outside
employment or activities. Under superseded 29 CFR 1600.735-204, the
Commission has had a requirement for prior approval of compensated and
other outside employment activities. Because this requirement has
helped to ensure that employees' outside activities conform to
[[Page 7066]]
applicable statutes and regulations, the Commission will continue to
require prior approval. Section 7201.103 provides that an EEOC
employee, including a special Government employee, must obtain advance
written approval from his or her Deputy Ethics Counselor or designee
before engaging in any outside employment. In addition to that
approval, employees must also obtain prior written approval from the
Designated Agency Ethics Official or designee to engage in compensated
outside employment, the uncompensated practice of law or uncompensated
outside employment that involves representational services or the
rendering of advice or analysis regarding any equal employment law, or
to serve as an officer or director of an organization whose activities
are devoted substantially to equal employment opportunity matters.
``Employment'' is broadly defined in Sec. 7201.103(d) to cover any
form of non-Federal employment or business relationship involving the
provision of personal services, including writing when done under an
arrangement with another person for production or publication of the
written product. It does not, however, include participation in the
activities of nonprofit charitable, religious, professional, social,
fraternal, educational, recreational, public service or civic
organizations, unless such activities involve the provision of
professional services or advice, are for compensation other than
reimbursement of expenses, or the organization's activities are devoted
substantially to matters relating to equal employment law and the
employee will serve as officer or director of the organization.
Section 7201.103(c) provides that approval will not be granted if
the outside employment is expected to involve conduct inconsistent with
or prohibited by any statute or federal regulation, including 5 CFR
part 2635 and these supplemental regulations.
III. Repeal and Redesignation of Portions of the EEOC Conduct
Regulations and Related Modifications
The Commission is replacing its existing standards of conduct
regulations at 29 CFR part 1600 and replacing them with a cross-
reference to 5 CFR parts 2634 and 2635 and to the supplemental
regulations at 5 CFR part 7201 adopted by this interim rule. With the
exception of subpart E and the material that was preserved pending the
issuance of this interim rule by the notes following 5 CFR 2635.403(a)
and 2635.803, part 1600 was superseded by OGE's two executive branch-
wide regulations, the Standards of Ethical Conduct for Employees of the
Executive Branch, 5 CFR part 2635, and Financial Disclosure, Qualified
Trusts, and Certificates of Divestiture For Executive Branch Employees,
5 CFR part 2634. See 57 FR 11800-1130, as amended at 57 FR 21854-21855
and 57 FR 62605. EEOC is redesignating subpart E of part 1600,
Procedures for the Collection of Debts by Salary Offset, as subpart A
of 29 CFR part 1650.
IV. Matters of Regulatory Procedure
The Commission has determined that these rules relate solely to
agency organization, procedure and practice. In addition, similar rules
have been applicable to Commission employees under EEOC's superseded
standards of conduct contained at 29 CFR part 1600. Therefore, the
requirements of the Administrative Procedure Act are not applicable.
EEOC is publishing its supplemental ethics regulation as an interim
rule to effect a smooth transition from its standards of conduct to
OGE's Government-wide standards of conduct regulation.
In promulgating this interim rule, the Commission has adhered to
the regulatory philosophy and the applicable principles of regulation
set forth in section 1 of Executive Order 12866, Regulatory Planning
and Review. This regulation has not been reviewed by the Office of
Management and Budget under that Executive order as it deals with
agency organization, management, and personnel matters and is not, in
any event, deemed ``significant'' thereunder. As required by the
Regulatory Flexibility Act (5 U.S.C. chapter 6), it is hereby certified
that this interim rule will not have a significant impact on small
business entities. In addition, the Commission has determined that this
interim rule does not impose any information collection requirements as
defined by the Paperwork Reduction Act, 44 U.S.C. 3501 et seq.
List of Subjects
5 CFR Part 7201
Conflict of interests, Government employees.
29 CFR Part 1600
Conflict of interests, Government employees.
29 CFR Part 1650
Debt collection.
Dated at Washington, DC, this 8th day of February 1996.
For the Equal Employment Opportunity Commission.
Gilbert F. Casellas,
Chairman.
Approved: February 16, 1996.
Stephen D. Potts,
Director, Office of Government Ethics.
For the reasons set forth in the preamble, the Equal Employment
Opportunity Commission, with the concurrence of the Office of
Government Ethics, is amending title 5 of the Code of Federal
Regulations and title 29, chapter XIV, of the Code of Federal
Regulations as follows:
TITLE 5--[AMENDED]
1. A new chapter LXII, consisting of part 7201, is added to Title 5
of the Code of Federal Regulations to read as follows:
5 CFR Chapter LXII--Equal Employment Opportunity Commission
PART 7201--SUPPLEMENTAL STANDARDS OF ETHICAL CONDUCT FOR EMPLOYEES
OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Sec.
7201.101 General.
7201.102 Prohibited outside employment.
7201.103 Prior approval for outside employment.
Authority: 5 U.S.C. 7301; 5 U.S.C. App. (Ethics in Government
Act of 1978); E.O. 12674, 54 FR 15159, 3 CFR, 1989 Comp., p. 215, as
modified by E.O. 12731, 55 FR 42547, 3 CFR, 1990 Comp., p. 306; 5
CFR 2635.105, 2635.403(a), 2635.802 and 2635.803.
Sec. 7201.101 General.
In accordance with 5 CFR 2635.105, the regulations in this part
apply to all employees of the Equal Employment Opportunity Commission
(EEOC), including members of the Commission and the General Counsel,
and supplement the Standards of Ethical Conduct for Employees of the
Executive Branch contained in 5 CFR part 2635.
Sec. 7201.102 Prohibited outside employment.
(a) No employee of the Equal Employment Opportunity Commission may
engage in outside employment with a person who is currently and
substantially affected by the employee's performance of his or her
official duties because the person is a party or representative of a
party to a particular matter involving specific parties.
(b) No employee of the Equal Employment Opportunity Commission,
other than a special Government employee, may receive compensation for
representational services, or the rendering of advice or analysis,
[[Page 7067]]
regarding any equal employment law or its application.
(c) No employee of the Equal Employment Opportunity Commission,
other than a special Government employee, may engage in outside
employment involving a particular matter pending at EEOC or an equal
employment opportunity matter in which EEOC or the Federal Government
is a party. An employee may, however, provide behind-the-scenes
assistance to immediate family members in matters pending at EEOC or
equal employment opportunity matters in which EEOC or the Federal
government is a party.
Sec. 7201.103 Prior approval for outside employment.
(a) Before engaging in any outside employment, with or without
compensation, an employee of the Equal Employment Opportunity
Commission must obtain written approval from his or her Deputy Ethics
Counselor or designee.
(b) In addition to approval under paragraph (a) of this section, an
employee must obtain prior written approval from the Designated Agency
Ethics Official or designee to engage in:
(1) Compensated outside employment;
(2) The uncompensated practice of law; or
(3) Uncompensated outside employment that involves representation
or the rendering of advice or analysis regarding any equal employment
law, or serving as an officer or director of an organization whose
activities are devoted substantially to equal employment opportunity
matters.
(c) Approval will not be granted if the outside employment is
expected to involve conduct inconsistent with or prohibited by a
statute or Federal regulation, including 5 CFR part 2635 and this part.
(d) For purposes of this section, ``employment'' means any form of
non-Federal employment or business relationship involving the provision
of personal services by the employee. It includes, but is not limited
to personal services as an officer, director, employee, agent,
attorney, consultant, contractor, general partner, trustee, teacher or
speaker. It includes writing when done under an arrangement with
another person for production or publication of the written product. It
does not, however, include participation in the activities of a
nonprofit charitable, religious, professional, social, fraternal,
educational, recreational, public service or civic organization unless:
(1) The employee's participation involves the provision of
professional services or advice;
(2) The employee will receive compensation other than reimbursement
of expenses; or
(3) The organization's activities are devoted substantially to
matters relating to equal employment law and the employee will serve as
officer or director of the organization.
29 CFR CHAPTER XIV--EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
PART 1600--[AMENDED]
2. The authority citation for part 1600 is revised to read as
follows:
Authority: 5 U.S.C. 7301.
3. Subparts A through D, consisting of Secs. 1600.735-101 through
1600.735-106, 1600.735-201 through 1600.735-206, 1600.735-301, and
1600.735-401 through 1600.735-406, respectively, and appendix A to part
1600 are removed.
4. A new Sec. 1600.101 is added to read as follows:
Sec. 1600.101 Cross-reference to employee ethical conduct standards
and financial disclosure regulations.
Employees of the Equal Employment Opportunity Commission (EEOC) are
subject to the executive branch-wide Standards of Ethical Conduct at 5
CFR part 2635, the EEOC regulation at 5 CFR part 7201, which
supplements the executive branch-wide standards, and the executive
branch-wide financial disclosure regulations at 5 CFR part 2634.
PART 1650--[AMENDED]
1. The authority citation for part 1650 is revised to read as
follows:
Authority: 5 U.S.C. 5514; 31 U.S.C. 3720A; 5 CFR 550.1101.
2. Subpart E of part 1600 is redesignated as new subpart A in part
1650 as indicated in the table below:
------------------------------------------------------------------------
Old section New section
------------------------------------------------------------------------
1600.735-501............................................... 1650.101
1600.735-502............................................... 1650.102
1600.735-503............................................... 1650.103
1600.735-504............................................... 1650.104
1600.735-505............................................... 1650.105
1600.735-506............................................... 1650.106
1600.735-507............................................... 1650.107
1600.735-508............................................... 1650.108
1600.735-509............................................... 1650.109
1600.735-510............................................... 1650.110
1600.735-511............................................... 1650.111
1600.735-512............................................... 1650.112
1600.735-513............................................... 1650.113
1600.735-514............................................... 1650.114
1600.735-515............................................... 1650.115
1600.735-516............................................... 1650.116
1600.735-517............................................... 1650.117
1600.735-518............................................... 1650.118
1600.735-519............................................... 1650.119
------------------------------------------------------------------------
[FR Doc. 96-4115 Filed 2-23-96; 8:45 am]
BILLING CODE 6750-06-M
Complete official Federal Register PDF
FR Doc. 96-3859 Clean Air Act (CAA) Operating Permit Program Revision for the State of Nebraska, City of Omaha, and Lincoln-Lancaster County Health Department (LLCHD)
[Federal Register Volume 61, Number 38 (Monday, February 26, 1996)]
[Rules and Regulations]
[Page 7073]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-3859]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 70
[AD-FRL-5425-4]
Clean Air Act (CAA) Operating Permit Program Revision for the
State of Nebraska, City of Omaha, and Lincoln-Lancaster County Health
Department (LLCHD)
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule; correction.
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SUMMARY: Final full approval of Nebraska's Title V program was
published on October 18, 1995. The document contains three
administrative errors and omits two items, all in Appendix A of 40 CFR
part 70, ``Approval Status of State and Local Operating Permit
Programs.'' This document corrects those deficiencies.
EFFECTIVE DATE: This rule will become effective on March 27, 1996.
ADDRESSES: Copies of the documents relevant to this action are
available for public inspection during normal business hours at the:
Environmental Protection Agency, Air Planning and Development Branch,
726 Minnesota Avenue, Kansas City, Kansas 66101; and EPA Air &
Radiation Docket and Information Center, 401 M Street SW., Washington,
DC 20460.
FOR FURTHER INFORMATION CONTACT: Christopher D. Hess at (913) 551-7213.
SUPPLEMENTARY INFORMATION: At 60 FR 53875, published October 18, 1995,
items (a), (b), and (c) in Appendix A contain the following errors or
omissions:
(a) Concerning the Nebraska Department of Environmental Quality,
this section should have cited the state's amended Title V rules
submitted June 14, 1995 (referenced in section III.A and III.C.1 of the
notice). Also, in III.A.C.1.a, the regulations included should read
``41'' instead of ``40-44'';
(b) Concerning the city of Omaha, this section lists a submission
dated April 19, 1995. Instead, the correct date is April 19, 1994.
Additionally, a finalized delegation contract between the state and the
city of Omaha effective June 26, 1995, should have been cited; and
(c) LLCHD submitted its Title V program on November 12, 1993,
instead of the notice's date of November 15, 1993. Finally, the cited
supplemental correspondence is dated June 23, 1994, not June 27, 1994.
List of Subjects in 40 CFR Part 70
Environmental protection, Administrative practice and procedure,
Air pollution control, Intergovernmental relations, Operating permits,
and Reporting and recordkeeping requirements.
Dated: February 6, 1996.
Dennis Grams,
Regional Administrator.
Correction of Publication
Accordingly, the regulations (FR Doc. 95-25844) published at 60 FR
53872-53875 on October 18, 1995, are corrected as follows:
Appendix A to Part 70--[Corrected]
On page 53875, in the second column, in appendix A to part 70, the
entry for the state of Nebraska, the city of Omaha, and Lincoln-
Lancaster County Health Department is corrected to read as follows:
* * * * *
State of Nebraska; City of Omaha; Lincoln-Lancaster County Health
Department
(a) The Nebraska Department of Environmental Quality submitted on
November 15, 1993, supplemented by correspondence dated November 2,
1994, and August 29, 1995, and amended Title V rules submitted June 14,
1995.
(b) Omaha Public Works Department submitted on November 15, 1993,
supplemented by correspondence dated April 18, 1994; April 19, 1994;
May 13, 1994; August 12, 1994; and April 13, 1995. A delegation
contract between the state and the city of Omaha became effective on
June 6, 1995.
(c) Lincoln-Lancaster County Health Department submitted on
November 12, 1993, supplemented by correspondence dated June 23, 1994.
Full approval effective on November 17, 1995.
* * * * *
[FR Doc. 96-3859 Filed 2-23-96; 8:45 am]
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