issue-1996-04-30•Federal Register final rules — 1996-04-30
Federal Register final rules — 1996-04-30
issue-1996-04-30Federal Register final rules — 1996-04-30Regulation
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. 96-10701 Temporary Establishment of Class D Airspace; Anchorage International Airport, Alaska (AK)
[Federal Register Volume 61, Number 84 (Tuesday, April 30, 1996)]
[Rules and Regulations]
[Pages 19152-19153]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-10701]
[[Page 19151]]
_______________________________________________________________________
Part IV
Department of Transportation
_______________________________________________________________________
Federal Aviation Administration
_______________________________________________________________________
14 CFR Part 71
Temporary Establishment of Class D Airspace; Anchorage International
Airport, Alaska; Final Rule
Federal Register / Vol. 61, No. 84 / Tuesday, April 30, 1996 / Rules
and Regulations
[[Page 19152]]
DEPARTMENT OF TRANSPORTATION
Federal Aviation Administration
14 CFR Part 71
[Airspace Docket No. 96-AAL-1]
Temporary Establishment of Class D Airspace; Anchorage
International Airport, Alaska (AK)
AGENCY: Federal Aviation Administration (FAA), DOT.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: This action establishes a temporary Class D airspace area east
of the Anchorage International Airport, AK, while Runway 14/32 is
closed for construction. During this closure, heavy or large commercial
aircraft will be departing to the east from Runway 06L/06R or arriving
from the east to land on Runway 24L/24R. The intended effect of this
action is to enhance safety by reducing the possibility of small
general aviation aircraft encountering wake turbulence from, or
conflicting with, heavy or large aircraft departing or arriving
Anchorage International Airport.
DATES: Effective date: 0901 UTC, May 1, 1996. Expiration Date: 0901
UTC, July 16, 1996.
FOR FURTHER INFORMATION CONTACT:
Robert C. Durand, System Management Branch, AAL-530, Air Traffic
Division, Federal Aviation Administration, 222 West 7th Avenue #14,
Anchorage, AK 99513-7587; telephone number: (907) 271-5898.
SUPPLEMENTARY INFORMATION:
Background
Normally, heavy or large aircraft depart on Runway 32 to the north
and arrive on Runway 06 from the west at Anchorage International
Airport. The Anchorage International Airport Manager has informed the
Federal Aviation Administration (FAA) that starting in May 1996, Runway
14/32 will be closed for construction through the middle of July 1996.
This closure will necessitate that heavy or large aircraft operating to
or from Anchorage International Airport arrive from or depart to the
east. Part of this airspace is a transition area used by small general
aviation aircraft operating under visual flight rules (VFR) to or from
Lake Hood, Merrill Field, and Anchorage International airports. The FAA
has received letters from the National Transportation Safety Board, Air
Transport Association of America, Federal Express, and Northwest
Airlines, expressing concerns, specifically, about heavy jet departures
off Runway 06 conflicting with VFR traffic east of Anchorage
International Airport.
The Rule
This amendment to part 71 of the Federal Aviation Regulations
establishes a Temporary Class D airspace area from the surface to 4,100
feet mean sea level (MSL) east of Anchorage International Airport, AK
(see appendix). Pilots operating in this airspace will be required to
be in radio contact with Anchorage Radar Approach Control air traffic
controllers. These aircraft will be provided safety alerts and wake
turbulence advisories. Additionally, controllers will provide
separation services between special VFR operations and aircraft
executing instrument approach procedures to the Anchorage International
Airport. This action is intended to enhance safety by reducing the
possibility of small general aviation aircraft encountering wake
turbulence from, or conflicting with, heavy or large aircraft departing
or arriving Anchorage International Airport.
Because the circumstances described in this final rule warrant
immediate action by the FAA to maintain the safety of flight, the FAA
concludes that notice and public procedure under 5 U.S.C. section
553(b) are impracticable and good cause, pursuant to 5 U.S.C. section
553(d), exists for making this amendment effective in less than 30
days.
The coordinates for this airspace docket are based on North
American Datum 83. Class D airspace area designations are published in
paragraph 5000 of FAA Order 7400.9C dated August 17, 1995, and
effective September 16, 1995, which is incorporated by reference in 14
CFR 71.1. This Class D airspace area listed in this document will be
published subsequently in the Order.
The FAA has determined that this regulation only involves an
established body of technical regulations for which frequent and
routine amendments are necessary to keep them operationally current.
Therefore, this regulation--(1) is not a ``significant regulatory
action'' under Executive Order 12866; (2) is not a ``significant rule''
under DOT Regulatory Policies and Procedures (44 FR 11034; February 26,
1979); and (3) does not warrant preparation of a Regulatory Evaluation
as the anticipated impact is minimal. Since this is a routine matter
that will only affect air traffic procedures and air navigation, it is
certified that this rule will not have a significant economic impact on
a substantial number of small entities under the criteria of the
Regulatory Flexibility Act.
List of Subjects in 14 CFR Part 71
Airspace, Incorporation by reference, Navigation (Air).
Adoption of the Amendment
In consideration of the foregoing, the Federal Aviation
Administration amends 14 CFR part 71 as follows:
PART 71--[AMENDED]
1. The authority citation for part 71 continues to read as follows:
Authority: 49 U.S.C. 106(g), 40103, 40113, 40120; E.O. 10854, 24
FR 9565, 3 CFR 1959-1963 Comp., p. 389; 14 CFR 11.69.
Sec. 71.1 [Amended]
2. The incorporation by reference in 14 CFR 71.1 of the Federal
Aviation Administration Order 7400.9C, Airspace Designations and
Reporting Points, dated August 17, 1995, and effective September 16,
1995, is amended as follows:
Paragraph 5000--Class D Airspace
* * * * *
AAL AK D Temporary Anchorage, AK [New]
That airspace extending upward from the surface to and including
4,100 feet MSL within a line beginning at the intersection of the
New Seward Highway and O'Malley Road, at lat. 61 deg.07'23'' N;
long. 149 deg.51'23'' W; thence east to the intersection of O'Malley
Road and Lake Otis Park Way at lat. 61 deg.07'23'' N; long
149 deg.50'03'' W; thence north to the intersection of Lake Otis
Park Way and Abbott Road at lat. 61 deg.08'14'' N; long.
149 deg.50'03'' W; thence east to the intersection of Abbott Road
and Abbott Loop Road at lat. 61 deg.08'14'' N; long. 149 deg.48'16''
W; thence due north to Tudor Road at lat. 61'10'51'' N; long.
149 deg.48'16'' W; thence west to the intersection of Tudor Road and
New Seward Highway at lat. 61 deg.10'51'' N; long. 149 deg.51'38''
W; thence south along the New Seward Highway to the point of
beginning.
* * * * *
Issued in Washington, D.C. April 24, 1996.
Harold W. Becker,
Acting Program Director for Air Traffic Airspace Management.
Note: This appendix will not appear in the Code of Federal
Regulations.
Appendix--Temporary Establishment of Class D Airspace; Anchorage
International Airport, Alaska (AK)
BILLING CODE 4910-13-M
[[Page 19153]]
[GRAPHIC] [TIFF OMITTED] TR30AP96.001
[FR Doc. 96-10701 Filed 4-25-96; 4:29 pm]
BILLING CODE 4910-13-C
Complete official Federal Register PDF
FR Doc. 96-10677 Standard Instrument Approach Procedures; Miscellaneous Amendments
[Federal Register Volume 61, Number 84 (Tuesday, April 30, 1996)]
[Rules and Regulations]
[Pages 18942-18944]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-10677]
-----------------------------------------------------------------------
DEPARTMENT OF TRANSPORTATION
14 CFR Part 97
[Docket No. 28548; Amdt. No. 1724]
Standard Instrument Approach Procedures; Miscellaneous Amendments
AGENCY: Federal Aviation Administration (FAA), DOT.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: This amendment establishes, amends, suspends, or revokes
Standard Instrument Approach Procedures (SIAPs) for operations at
certain airports. These regulatory actions are needed because of the
adoption of new or revised criteria, or because of changes occurring in
the National Airspace System, such as the commissioning of new
navigational facilities, addition of new obstacles, or changes in air
traffic requirements. These changes are designed to provide safe and
efficient use of the navigable airspace and to promote safe flight
operations under instrument flight rules at the affected airports.
DATES: An effective date for each SIAP is specified in the amendatory
provisions.
Incorporation by reference-approved by the Director of the Federal
Register on December 31, 1980, and reapproved as of January 1, 1982.
ADDRESSES: Availability of matters incorporated by reference in the
amendment is as follows:
For Examination--1. FAA Rules Docket, FAA Headquarters Building,
800 Independence Avenue, SW., Washington, DC 20591;
2. The FAA Regional Office of the region in which the affected
airport is located; or
3. The Flight Inspection Area Office which originated the SIAP.
For Purchase--Individual SIAP copies may be obtained from:
1. FAA Public Inquiry Center (APA-200), FAA Headquarters Building,
800 Independence Avenue, SW., Washington, DC 20591; or
[[Page 18943]]
2. The FAA Regional Office of the region in which the affected
airport is located.
By Subscription--Copies of all SIAPs, mailed once every 2 weeks,
are for sale by the Superintendent of Documents, U.S. Government
Printing Office, Washington, DC 20402.
FOR FURTHER INFORMATION CONTACT: Paul J. Best, Flight Procedures
Standards Branch (AFS-420), Technical Programs Division, Flight
Standards Service, Federal Aviation Administration, 800 Independence
Avenue, SW., Washington, DC 20591; telephone (202) 267-8277.
SUPPLEMENTARY INFORMATION: This amendment to part 97 of the Federal
Aviation Regulations (14 CFR part 97) establishes, amends, suspends, or
revokes Standard Instrument Approach Procedures (SIAPs). The complete
regulatory description of each SIAP is contained in official FAA form
documents which are incorporated by reference in this amendment under 5
U.S.C. 552(a), 1 CFR part 51, and Sec. 97.20 of the Federal Aviation
Regulations (FAR). The applicable FAA Forms are identified as AA Forms
8260-3, 8260-4, and 8260-5. Materials incorporated by reference are
available for examination or purchase as stated above.
The large number of SIAPs, their complex nature, and the need for a
special format make their verbatim publication in the Federal Register
expensive and impractical. Further, airmen do not use the regulatory
text of the SIAPs, but refer to their graphic depiction on charts
printed by publishers of aeronautical materials. Thus, the advantages
of incorporation by reference are realized and publication of the
complete description of each SIAP contained in FAA form documents is
unnecessary. The provisions of this amendment state the affected CFR
(and FAR) sections, with the types and effective dates of the SIAPs.
This amendment also identifies the airport, its location, the procedure
identification and the amendment number.
The Rule
This amendment to part 97 is effective upon publication of each
separate SIAP as contained in the transmittal. Some SIAP amendments may
have been previously issued by the FAA in a National Flight Data Center
(FDC) Notice to Airmen (NOTAM) as an emergency action of immediate
flight safety relating directly to published aeronautical charts. The
circumstances which created the need for some SIAP amendments may
require making them effective in less than 30 days. For the remaining
SIAPs, an effective date at least 30 days after publication is
provided.
Further, the SIAPs contained in this amendment are based on the
criteria contained in the U.S. Standard for Terminal Instrument
Approach Procedures (TERPS). In developing these SIAPs, the TERPS
criteria were applied to the conditions existing or anticipated at the
affected airports. Because of the close and immediate relationship
between these SIAPs and safety in air commerce, I find that notice and
public procedure before adopting these SIAPs are impracticable and
contrary to the public interest and, where applicable, that good cause
exists for making some SIAPs effective in less than 30 days.
The FAA has determined that this regulation only involves an
established body of technical regulations for which frequent and
routine amendments are necessary to keep them operationally current.
It, therefore--(1) is not a ``significant regulatory action'' under
Executive Order 12866; (2) is not a ``significant rule'' under DOT
Regulatory Policies and Procedures (44 FR 11034; February 26, 1979);
and (3) does not warrant preparation of a regulatory evaluation as the
anticipated impact is so minimal. For the same reason, the FAA
certifies that this amendment will not have a significant economic
impact on a substantial number of small entities under the criteria of
the Regulatory Flexibility Act.
List of Subjects in 14 CFR Part 97
Air Traffic Control, Airports, Navigation (Air).
Issued in Washington, DC on April 19, 1996.
Thomas C. Accardi,
Director, Flight Standards Service.
Adoption of the Amendment
Accordingly, pursuant to the authority delegated to me, part 97 of
the Federal Aviation Regulations (14 CFR part 97) is amended by
establishing, amending, suspending, or revoking Standard Instrument
Approach Procedures, effective at 0901 UTC on the dates specified, as
follows:
PART 97--STANDARD INSTRUMENT APPROACH PROCEDURES
1. The authority citation for part 97 is revised to read as
follows:
Authority: 49 U.S.C. 106(g), 40103, 40113, 40120, 44701; and 14
CFR 11.49(b)(2).
2. Part 97 is amended to read as follows:
Secs. 97.23, 97.25, 97.27, 97.29, 97.31, 97.33 and 97.35 [Amended]
By amending: Sec. 97.23 VOR, VOR/DME, VOR or TACAN, and VOR/DME or
TACAN; Sec. 97.25 LOC, LOC/DME, LDA, LDA/DME, SDF, SDF/DME; Sec. 97.27
NDB, NDB/DME; Sec. 97.29 ILS, ILS/DME, ISMLS, MLS, MLS/DME, MLS/RNAV;
Sec. 97.31 RADAR SIAPs; Sec. 97.33 RNAV SIAPs; and Sec. 97.35 COPTER
SIAPs, identified as follows:
* * * Effective May 23, 1996
Manchester, NH, Manchester, LOC RWY 17, Orig Liberty, TX Liberty
Muni, GPS RWY 16, Orig
* * * Effective June 20, 1996
Selma, AL, Craig Field, VOR RWY 15, Orig
Selma, AL, Craig Field, VOR RWY 33, Orig
Selma, AL, Craig Field, VOR RWY 32, Amdt 3, CANCELLED
Koyuk, AK, Koyuk, NDB/DME RWY 36, Orig
St Paul Island, AK, St Paul Island, NDB/DME or GPS RWY 18, Amdt 2
St Paul Island, AK, St Paul Island, NDB-A, Orig
St Paul Island, AK, St Paul Island, NDB-3 or GPS RWY 36, Amdt 1,
CANCELLED
Tucson, AZ, Tucson Intl, ILS RWY 11L, Amdt 12
Lompoc, CA, Lompoc, NDB or GPS-B, Orig, CANCELLED
Rio Vista, CA, Rio Vista Muni, GPS RWY 25, Orig
Santa Monica, CA, Santa Monica Muni, LDA/DME RWY 21, Amdt 1,
CANCELLED
Bridgeport, CT, Igor I. Sikorsky Memorial, GSP RWY 29, Amdt 1
Jekyll Island, GA, Jekyll Island, GPS RWY 36, Orig
Great Barrington, MA, Great Barrington, NDB or GPS-A, Amdt 5
Great Barrington, MA, Great Barrington, GPS RWY 11, Orig
Aitkin, MN, Aitkin Muni, NDB or GPS RWY 16, Amdt 4
Brainerd, MN, Brainerd-Crow Wing Co Regional, VOR/DME RWY 12, Amdt 9
Brainerd, MN, Brainerd-Crow Wing Co Regional, VOR or GPA RWY 30,
Amdt 13
Brainerd, MN, Brainerd-Crow Wing Co Regional, NDB or GPS RWY 23,
Amdt 5
Brainerd, MN, Brainerd-Crow Wing Co Regional, ILS RWY 23, Amdt 5
Little Falls, MN, Little Falls-Morrison County, NDB or GPS RWY 30,
Amdt 5
Mora, MN, Mora Muni, NDB or GPS RWY 35, Amdt 3
Corinth, MS, Roscoe Turner, GPS RWY 17, Orig
Reno, NV, Reno/Tahoe Intl, LOC-2 RWY 16R, Amdt 6
Southport, NC, Brunswick County, NDB or GPS-A, AMDT 3B, CANCELLED
Fargo, ND, Hector International, RADAR-1, Amdt 10
Gage, OK, Gage, VOR or GPS-A, Amdt 9A, CANCELLED
Miami, OK, Miami Muni, NDB or GPS RWY 17, Amdt 1, CANCELLED
Abilene, TX, Abilene Regional, RADAR-1, Amdt 8
Angleton/Lake Jackson, TX, Brazoria County, GPS RWY 35, Orig
[[Page 18944]]
Ballinger, TX, Bruce Field, GPS RWY 35, Orig
Conroe, TX, Montgomery County, GPS RWY 32, Orig
Fort Stockton, TX, Fort Stockton-Pecos County, GPS RWY 30, Orig
Hereford, TX, Hereford Muni, GPS RWY 21, Orig
Houston, TX, Houston Gulf, GPS RWY 31, Orig
Livingston, TX, Livingston Muni, GPS RWY 30, Orig
Monahans, TX, Roy Hurd Memorial, GPS RWY 12, Orig
Monahans, TX, Roy Hurd Memorial, GPS RWY 30, Orig
Ozona, TX, Ozona Muni, GPS RWY 16, Orig
Palestime, TX, Palestine Muni, GPS RWY 35, Orig
Hayward, WI, Hayward Muni, VOR RWY 20, Amdt 6
Hayward, WI, Hayward Muni, VOR/DME or GPS RWY 2, Amdt 1
Hayward, WI, Hayward Muni, NDB or GPS RWY 20, Amdt 12
The FAA published an amendment in Docket No. 28475, Amdt. No. 1712
to Part 97 of the Federal Aviation Regulations, Vol 61, FR No. Page
7698, dated February 29, 1996, Section 97.23 effective April 25, 1996,
which is amended as follows:
Kokomo, IN, Kokomo Muni, VOR/DME or GPS RWY 23, Amdt 19 is amended
to read:
Kokomo, IN, Kokomo Muni, VOR or GPS RWY 23, Amdt 19
[FR Doc. 96-10677 Filed 4-29-96; 8:45 am]
BILLING CODE 4910-13-M
Complete official Federal Register PDF
FR Doc. 96-10676 Standard Instrument Approach Procedures; Miscellaneous Amendments
[Federal Register Volume 61, Number 84 (Tuesday, April 30, 1996)]
[Rules and Regulations]
[Pages 18941-18942]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-10676]
-----------------------------------------------------------------------
DEPARTMENT OF TRANSPORTATION
14 CFR Part 97
[Docket No. 28549; Amdt. No. 1725]
Standard Instrument Approach Procedures; Miscellaneous Amendments
AGENCY: Federal Aviation Administration (FAA), DOT.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: This amendment establishes, amends, suspends, or revokes
Standard Instrument Approach Procedures (SIAPs) for operations at
certain airports. These regulatory actions are needed because of
changes occurring in the National Airspace System, such as the
commissioning of new navigational facilities, addition of new
obstacles, or changes in air traffic requirements. These changes are
designed to provide safe and efficient use of the navigable airspace
and to promote safe flight operations under instrument flight rules at
the affected airports.
DATES: An effective date for each SIAP is specified in the amendatory
provisions.
Incorporation by reference-approved by the Director of the Federal
Register on December 31, 1980, and reapproved as of January 1, 1982.
ADDRESSES: Availability of matter incorporated by reference in the
amendment is as follows:
For Examination--1. FAA Rules Docket, FAA Headquarters Building,
800 Independence Avenue, SW., Washington, DC 20591;
2. The FAA Regional Office of the region in which affected airport
is located; or
3. The Flight Inspection Area Office which originated the SIAP.
For Purchase--Individual SIAP copies may be obtained from:
1. FAA Public Inquiry Center (APA-200), FAA Headquarters Building,
800 Independence Avenue, SW., Washington, DC 20591; or
2. The FAA Regional Office of the region in which the affected
airport is located.
By Subscription--Copies of all SIAPs, mailed once every 2 weeks,
are for sale by the Superintendent of Documents, US Government Printing
Office, Washington, DC 20402.
FOR FURTHER INFORMATION CONTACT:
Paul J. Best, Flight Procedures Standards Branch (AFS-420), Technical
Programs Division, Flight Standards Service, Federal Aviation
Administration, 800 Independence Avenue, SW., Washington, DC 20591;
telephone (202) 267-8277.
SUPPLEMENTARY INFORMATION: This amendment to part 97 of the Federal
Aviation Regulations (14 CFR part 97) establishes, amends, suspends, or
revokes Standard Instrument Approach Procedures (SIAPs). The complete
regulatory description on each SIAP is contained in the appropriate FAA
Form 8260 and the National Flight Data Center (FDC)/Permanent (P)
Notices to Airmen (NOTAM) which are incorporated by reference in the
amendment under 5 U.S.C. 552(a), 1 CFR part 51, and Sec. 97.20 of the
Federal Aviation Regulations (FAR). Materials incorporated by reference
are available for examination or purchase as stated above.
The large number of SIAPs, their complex nature, and the need for a
special format make their verbatim publication in the Federal Register
expensive and impractical. Further, airmen do not use the regulatory
text of the SIAPs, but refer to their graphic depiction of charts
printed by publishers of aeronautical materials. Thus, the advantages
of incorporation by reference are realized and publication of the
complete description of each SIAP contained in FAA form documents is
unnecessary. The provisions of this amendment state the affected CFR
(and FAR) sections, with the types and effective dates of the SIAPs.
This amendment also identifies the airport, its location, the procedure
identification and the amendment number.
The Rule
This amendment to part 97 of the Federal Aviation Regulations (14
CFR part 97) establishes, amends, suspends, or revokes SIAPs. For
safety and timeliness of change considerations, this amendment
incorporates only specific changes contained in the content of the
following FDC/P NOTAM for each SIAP. The SIAP information in some
previously designated FDC/Temporary (FDC/T) NOTAMs is of such duration
as to be permanent.With conversion to FDC/P NOTAMs, the respective FDC/
T NOTAMs have been cancelled.
The FDC/P NOTAMs for the SIAPs contained in this amendment are
based on the criteria contained in the U.S. Standard for Terminal
Instrument Approach Procedures (TERPS). In developing these chart
changes to SIAPs by FDC/P NOTAMs, the TERPS criteria were applied to
only these specific conditions existing at the affecting airports. All
SIAP amendments in this rule have been previously issued by the FAA in
a National Flight Data Center (FDC) Notice to Airmen (NOTAM) as an
emergency action of immediate flight safety relating directly to
published aeronautical charts. The circumstances which created the need
for all these SIAP amendments requires making them effective in less
than 30 days.
Further, the SIAPs contained in this amendment are based on the
criteria contained in the TERPS. Because of the close and immediate
relationship between these SIAPs and safety in air commerce, I find
that notice and public procedure before adopting these SIAPs are
impracticable and contrary to the public interest and, where
applicable, that good cause exists for making these SIAPs effective in
less than 30 days.
Conclusion
The FAA has determined that this regulation only involves an
established body of technical regulations for which frequent and
routine amendments are necessary to keep them operationally current.
It, therefore--(1) is not a ``significant regulatory action'' under
Executive Order 12866; (2) is not a ``significant rule'' under DOT
Regulatory Policies and Procedures (44 FR 11034; February 26, 1979);
and (3) does not warrant preparation of a regulatory evaluation as the
anticipated impact is so minimal. For the same reason, the FAA
certifies that this amendment will not have a significant economic
impact on a substantial number of small entities under the criteria of
the Regulatory Flexibility Act.
List of Subjects in 14 CFR Part 97
Air Traffic Control, Airports, Navigation (Air).
Issued in Washington, DC on April 19, 1996.
Thomas C. Accardi,
Director, Flight Standards Service.
Adoption of the Amendment
Accordingly, pursuant to the authority delegated to me, part 97 of
the Federal Aviation Regulations (14 (CFR part 97) is amended by
establishing, amending, suspending, or revoking Standard Instrument
Approach Procedures, effective at 0901 UTC on the dates specified, as
follows:
PART 97--STANDARD INSTRUMENT APPROACH PROCEDURES
1. The authority citation for part 97 is revised to read as
follows:
[[Page 18942]]
Authority: 49 U.S.C. 40103, 40113, 40120, 44701; 49 U.S.C.
106(g); and 14 CFR 11.49(b)(2).
2. Part 97 is amended to read as follows:
Sec. Sec. 97.23, 97.25, 97.27, 97.29, 97.31, 97.33, 97.35 [Amended]
By amending Sec. 97.23 VOR, VOR/DME, VOR or TACAN, and VOR/DME or
TACAN; Sec. 97.25 LOC, LOC/DME, LDA, LDA/DME, SDF, SDF/DME; Sec. 97.27
NDB, NDB/DME; Sec. 97.29 ILS, ILS/DME, ISMLS, MLS, MLS/DME, MLS/RNAV;
Sec. 97.31 RADAR SIAPs; Sec. 97.33 RNAV SIAPs; and Sec. 97.35 COPTER
SIAPs, Identified as follows:
Effective upon Publication
--------------------------------------------------------------------------------------------------------------------------------------------------------
FDC Date State City Airport FDC Number SIAP
--------------------------------------------------------------------------------------------------------------------------------------------------------
04/03/96............ OK Pauls Valley.......... Pauls Valley Muni.... FDC 6/2009 GPS Rwy 35 Orig...
04/04/96............ LA Alexandria............ Alexandria Intl...... FDC 6/2028 VOR or GPS Rwy 32, Orig...
04/04/96............ OK Pauls Valley.......... Pauls Valley Muni.... FDC 6/2026 NDB Rwy 35, Amdt 3...
04/04/96............ TN Tullahoma............. Tullahoma Regional/WM FDC 6/2043 VOR/DME or GPS-B, Amdt 3A...
Northern Field.
04/04/96............ TN Tullahoma............. Tullahoma Regional/WM FDC 6/2045 SDF Rwy 18, Amdt 3...
Northern Field.
04/05/96............ AR Texarkana............. Texarkana Regional- FDC 6/2075 VOR or GPS Rwy 13, Amdt 14...
Webb Field.
04/05/96............ AR Texarkana............. Texarkana Regional- FDC 6/2078 ILS Rwy 22, Amdt 14...
Webb Field.
04/05/96............ AR Texarkana............. Texarkana Regional- FDC 6/2082 NDB or GPS Rwy 22, Amdt 11...
Webb Field.
04/05/96............ AR Texarkana............. Texarkana Regional- FDC 6/2084 LOC BC Rwy 4, Amdt 11...
Webb Field.
04/08/96............ KS Wichita............... Wichita Mid-Continent FDC 6/2116 ILS Rwy 1R, Amdt 16...
Airport.
04/09/96............ VA Petersburg............ Petersburg Muni...... FDC 6/2128 LOC Rwy 5 Orig...
04/09/96............ VA Petersburg............ Petersburg Muni...... FDC 6/2130 NDB or GPS Rwy 5 Amdt 4...
04/09/96............ VA Petersburg............ Petersburg Muni...... FDC 6/2132 VOR or GPS Rwy 23 Amdt 3...
04/15/96............ NE Alliance.............. Alliance Muni........ FDC 6/2236 VOR or GPS Rwy 12, Amdt 2...
04/15/96............ TX College Station....... Easterwood Field..... FDC 6/2223 DEP PROC/TKOF MNMS, Orig...
04/15/96............ TX College Station....... Easterwood Field..... FDC 6/2224 ILS Rwy 34, Amdt 10...
04/15/96............ TX College Station....... Easterwood Field..... FDC 6/2225 LOC BC Rwy 16, Amdt 4...
04/15/96............ TX College Station....... Easterwood Field..... FDC 6/2226 NDB or GPS Rwy 34, Amdt 11...
04/15/96............ TX College Station....... Easterwood Field..... FDC 6/2227 VOR/DME or GPS Rwy 28, Amdt
12...
04/15/96............ TX College Station....... Easterwood Field..... FDC 6/2228 VOR or TACAN or GPS Rwy 10, Amdt
18...
--------------------------------------------------------------------------------------------------------------------------------------------------------
[FR Doc. 96-10676 Filed 4-29-96; 8:45 am]
BILLING CODE 4910-13-M
Complete official Federal Register PDF
FR Doc. 96-10673 Special Conditions; Cessna Model 425 Airplanes
[Federal Register Volume 61, Number 84 (Tuesday, April 30, 1996)]
[Rules and Regulations]
[Pages 18939-18941]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-10673]
========================================================================
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
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The Code of Federal Regulations is sold by the Superintendent of Documents.
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week.
========================================================================
Federal Register / Vol. 61, No. 84 / Tuesday, April 30, 1996 / Rules
and Regulations
[[Page 18939]]
DEPARTMENT OF TRANSPORTATION
Federal Aviation Administration
14 CFR Part 23
[Docket No. 131CE, Special Condition 23-ACE-86]
Special Conditions; Cessna Model 425 Airplanes
AGENCY: Federal Aviation Administration (FAA), DOT.
ACTION: Final special conditions; request for comments.
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SUMMARY: These special conditions are issued for the Cessna Model 425
airplanes modified by Modern Avionics, Inc., Eden Prairie, Minnesota.
These airplanes will have novel and unusual design features when
compared to the state of technology envisaged in the applicable
airworthiness standards. These novel and unusual design features
include the installation of electronic displays for which the
applicable regulations do not contain adequate or appropriate
airworthiness standards for the protection of these systems from the
effects of high intensity radiated fields (HIRF). These special
conditions contain the additional safety standards that the
Administrator considers necessary to establish a level of safety
equivalent to the airworthiness standards applicable to these
airplanes.
EFFECTIVE DATE: The effective date of these special conditions is on
publication in the Federal Register. Comments must be received on or
before May 30, 1996.
ADDRESSES: Comments may be mailed in duplicate to: Federal Aviation
Administration, Office of the Assistant Chief Counsel, ACE-7,
Attention: Rules Docket Clerk, Docket No. 131CE, Room 1558, 601 East
12th Street, Kansas City, Missouri 64106. All comments must be marked:
Docket No. 131CE. Comments may be inspected in the Rules Docket
weekdays, except Federal holidays, between 7:30 a.m. and 4:00 p.m.
FOR FURTHER INFORMATION CONTACT:
Ervin Dvorak, Aerospace Engineer, Standards Office (ACE-110), Small
Airplane Directorate, Aircraft Certification Service, Federal Aviation
Administration, 601 East 12th Street, Kansas City, Missouri 64106;
telephone (816) 426-6941.
SUPPLEMENTARY INFORMATION:
Comments Invited
Although this action is in the form of a final rule that involves
requirements affecting flight safety, and, thus, was not preceded by
notice and an opportunity for public comment, comments are invited on
these special conditions.
Interested persons are invited to submit such written data, views,
or arguments as they may desire. Communications should identify the
regulatory docket and special conditions number and be submitted in
duplicate to the address specified above. All communications received
on or before the closing date for comments will be considered by the
Administrator. These special conditions may be changed in light of the
comments received. All comments submitted will be available in the
rules docket for examination by interested parties, both before and
after the closing date for comments. A report summarizing each
substantive public contact with FAA personnel concerning this
rulemaking will be filed in the docket. Persons wishing the FAA to
acknowledge receipt of their comments, submitted in response to this
request, must include a self-addressed and stamped postcard on which
the following statement is made: ``Comments to Docket No. 131CE.'' The
postcard will be date stamped and returned to the commenter.
Background
On March 8, 1996, Modern Avionics, Inc., 10000 Flying Cloud Drive,
Eden Prairie, Minnesota 55347, made an application to the FAA for a
supplemental type certificate (STC) for the Cessna Model 425 airplanes.
The proposed modification incorporates a novel or unusual design
feature, such as digital avionics consisting of an electronic flight
instrument system (EFIS), that is vulnerable to HIRF external to the
airplane.
Type Certification Basis
The type certification basis for the Cessna Model 425 Airplanes is
given in Type Certification Data Sheet No. A7CE plus the following:
Sec. 23.1301 of Amendment 23-20; Secs. 23.1309, 23.1311, and
23.1321 of Amendment 23-41; and Sec. 23.1322 of Amendment 23-43;
exemptions, if any; and the special conditions adopted by this
rulemaking action.
Discussion
The FAA may issue and amend special conditions, as necessary, as
part of the type certification basis if the Administrator finds that
the airworthiness standards, designed according to Sec. 21.101(b), do
not contain adequate or appropriate safety standards because of novel
or unusual design features of an airplane. Special conditions are
prescribed under the provisions of Sec. 21.16 to establish a level of
safety equivalent to that established in the regulations. Special
conditions are normally issued according to Sec. 11.49, effective
October 25, 1989, after public notice, as required by Secs. 11.28 and
11.29(b), and become a part of the type certification basis in
accordance with Sec. 21.101(b)(2).
Modern Avionics, Inc., plans to incorporate certain novel and
unusual design features into an airplane for which the airworthiness
standards do not contain adequate or appropriate safety standards for
protection from the effects of HIRF. These features include electronic
systems, which are susceptible to the HIRF environment, that were not
envisaged by the existing regulations for this type of airplane.
Protection of Systems from High Intensity Radiated Fields (HIRF):
Recent advances in technology have given rise to the application in
aircraft designs of advanced electrical and electronic systems that
perform functions required for continued safe flight and landing. Due
to the use of sensitive solid state advanced components in analog and
digital electronics circuits, these advanced systems are readily
responsive to the transient effects of induced electrical current and
voltage caused by the HIRF. The HIRF can degrade electronic systems
performance by damaging components or upsetting system functions.
Furthermore, the HIRF environment has undergone a transformation
that was
[[Page 18940]]
not foreseen when the current requirements were developed. Higher
energy levels are radiated from transmitters that are used for radar,
radio, and television. Also, the number of transmitters has increased
significantly. There is also uncertainty concerning the effectiveness
of airframe shielding for HIRF. Furthermore, coupling to cockpit-
installed equipment through the cockpit window apertures is undefined.
The combined effect of the technological advances in airplane
design and the changing environment has resulted in an increased level
of vulnerability of electrical and electronic systems required for the
continued safe flight and landing of the airplane. Effective measures
against the effects of exposure to HIRF must be provided by the design
and installation of these systems. The accepted maximum energy levels
in which civilian airplane system installations must be capable of
operating safely are based on surveys and analysis of existing radio
frequency emitters. These special conditions require that the airplane
be evaluated under these energy levels for the protection of the
electronic system and its associated wiring harness. These external
threat levels, which are lower than previous required values, are
believed to represent the worst case to which an airplane would be
exposed in the operating environment.
These special conditions require qualification of systems that
perform critical functions, as installed in aircraft, to the defined
HIRF environment in paragraph 1 or, as an option to a fixed value using
laboratory tests, in paragraph 2, as follows:
(1) The applicant may demonstrate that the operation and
operational capability of the installed electrical and electronic
systems that perform critical functions are not adversely affected when
the aircraft is exposed to the HIRF environment defined below:
Field Strength Volts/Meter
------------------------------------------------------------------------
Frequency Peak Average
------------------------------------------------------------------------
10-100 KHz............................................ 50 50
100-500............................................... 60 60
500-2000.............................................. 70 70
2-30 MHz.............................................. 200 200
30-70................................................. 30 30
70-100................................................ 30 30
100-200............................................... 150 33
200-400............................................... 70 70
400-700............................................... 4020 935
700-1000.............................................. 1700 170
1-2 GHz............................................... 5000 990
2-4................................................... 6680 840
4-6................................................... 6850 310
6-8................................................... 3600 670
8-12.................................................. 3500 1270
12-18................................................. 3500 360
18-40................................................. 2100 750
------------------------------------------------------------------------
or,
(2) The applicant may demonstrate by a system test and analysis
that the electrical electronic systems that perform critical functions
can withstand a minimum threat of 100 volts per meter, peak electrical
field strength, from 10 KHz to 18 GHz. When using this test to show
compliance with the HIRF requirements, no credit is given for signal
attenuation due to installation.
A preliminary hazard analysis must be performed by the applicant,
for approval by the FAA, to identify electrical and/or electronic
systems that perform critical functions. The term ``critical'' means
those functions whose failure would contribute to, or cause, a failure
condition that would prevent the continued safe flight and landing of
the airplane. The systems identified by the hazard analysis that
perform critical functions are candidates for the application of HIRF
requirements. A system may perform both critical and non-critical
functions. Primary electronic flight display systems, and their
associated components, perform critical functions such as attitude,
altitude, and airspeed indication. The HIRF requirements apply only to
critical functions.
Compliance with HIRF requirements may be demonstrated by tests,
analysis, models, similarity with existing systems, or any combination
of these. Service experience alone is not acceptable since normal
flight operations may not include an exposure to the HIRF environment.
Reliance on a system with similar design features for redundancy as a
means of protection against the effects of external HIRF is generally
insufficient since all elements of a redundant system are likely to be
exposed to the fields concurrently.
Conclusion
In view of the design features discussed for the Cessna Model 425
Airplanes, the following special conditions are issued. This action is
not a rule of general applicability and affects only those applicants
who apply to the FAA for approval of these features on these airplanes.
The substance of these special conditions has been subject to the
notice and public comment procedure in several prior rulemaking
actions. For example, the Dornier 228-200 (53 FR 14782, April 26,
1988), the Cessna Model 525 (56 FR 49396, September 30, 1991), and the
Beech Models 200, A200, and B200 airplanes (57 FR 1220, January 13,
1992). It is unlikely that additional public comment would result in
any significant change from those special conditions already issued and
commented on. For these reasons, and because a delay would
significantly affect the applicant's installation of the system and
certification of the airplane, which is imminent, the FAA has
determined that prior public notice and comment are unnecessary and
impracticable, and good cause exists for adopting these special
conditions without notice. Therefore, these special conditions are
being made effective upon publication in the Federal Register. However,
as previously indicated, interested persons are invited to comment on
these special conditions if they so desire
List of Subjects in 14 CFR Part 23
Aircraft, Aviation safety, Signs and symbols.
Citation
The authority citation for these special conditions is as follows:
Authority: 49 U.S.C. 106(g); 40113, 44701, 44702, and 44704; 14
CFR 21.16 and 21.101; and 14 CFR 11.28 and 11.49.
Adoption of Special Conditions
Accordingly, pursuant to the authority delegated to me by the
Administrator, the following special conditions are issued as part of
the type certification basis for the modified Cessna Model 425
Airplanes:
1. Protection of Electrical and Electronic Systems from High
Intensity Radiated Fields (HIRF). Each system that performs critical
functions must be designed and installed to ensure that the operations,
and operational capabilities of these systems to perform critical
functions, are not adversely affected when the airplane is exposed to
high intensity radiated electromagnetic fields external to the
airplane.
2. For the purpose of these special conditions, the following
definition applies: Critical Functions: Functions whose failure would
contribute to, or cause, a failure condition that would prevent the
continued safe flight and landing of the airplane.
[[Page 18941]]
Issued in Kansas City, Missouri on April 15, 1996.
Henry A. Armstrong,
Acting Manager, Small Airplane Directorate, Aircraft Certification
Service.
[FR Doc. 96-10673 Filed 4-29-96; 8:45 am]
BILLING CODE 4910-13-M
Complete official Federal Register PDF
FR Doc. 96-10663 Foreign Fishing; Pacific Coast Groundfish Fishery; Annual Specifications; and Correction
[Federal Register Volume 61, Number 84 (Tuesday, April 30, 1996)]
[Rules and Regulations]
[Pages 18988-18994]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-10663]
=======================================================================
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Parts 611 and 663
[Docket No. 951227306-6117-02; I.D. 121295C]
Foreign Fishing; Pacific Coast Groundfish Fishery; Annual
Specifications; and Correction
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Final 1996 groundfish fishery specifications for Pacific
whiting and correction.
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SUMMARY: NMFS announces the 1996 fishery specifications for Pacific
whiting in the U.S. exclusive economic zone (EEZ) and state waters off
the coasts of Washington, Oregon, and California as authorized by the
Pacific Coast Groundfish Fishery Management Plan (FMP). The
specifications include the level of the acceptable biological catch
(ABC) and harvest guideline, including the distribution between
domestic and foreign fishing operations. The intended effect of this
action is to establish allowable harvest levels of Pacific whiting
based on the best available scientific information. Corrections are
also made to Table 1 in the annual specifications and management
measures for the Pacific coast groundfish fishery.
EFFECTIVE DATE: May 15, 1996, until the effective date of the 1997
annual specifications and management measures, which will be published
in the Federal Register.
FOR FURTHER INFORMATION CONTACT: William L. Robinson (Northwest Region,
NMFS) 206-526-6140; or Rodney R. McInnis (Southwest Region, NMFS) 310-
980-4040.
SUPPLEMENTARY INFORMATION: The FMP requires that fishery specifications
for groundfish be evaluated each calendar year, that harvest guidelines
or quotas be specified for species or species groups in need of
additional protection, and that management measures designed to achieve
the harvest guidelines or quotas be published in the Federal Register
and made effective by January 1, the beginning of the fishing year.
This was done for the 1996 groundfish fishery (61 FR 279, January 4,
1996), with one exception, Pacific whiting (whiting). Final
specifications for whiting were not announced because the Pacific
Fishery Management Council (Council), which makes management
recommendations to NMFS, decided to delay its consideration until 1995
hydroacoustic survey information could be included in the assessment on
whiting and the new results reviewed. Consequently, preliminary
specifications for whiting were announced concurrent with the final
specifications for other groundfish species. As in the past, the
specifications include fish caught in state ocean waters (0-3 nautical
miles (nm) offshore) as well as fish caught in the EEZ (3-200 nm
offshore).
In 1994, the ABC for whiting was substantially higher than in
previous years, primarily because it was based on data from the 1992
hydroacoustic survey that utilized new, more sensitive equipment, and
extended farther offshore and farther north to encompass the species'
range. To provide for cautious exploitation until the 1992 survey
results could be confirmed, a conservative harvest rate policy was
adopted in 1994 and 1995 to minimize the risk to the resource if the
ABC is later found to be too high. Because initial results of the
recent 1995 survey were favorable, the Council initially supported
resumption of the moderate exploitation rate in 1996. When applied to
the previous year's stock assessment, this resulted in a preliminary
ABC recommendation of 123,000 metric tons (mt) for the U.S. and Canada
combined. The Council also recommended that the preliminary U.S.
harvest guideline continue at 80 percent (98,400 mt) of the ABC. When
the preliminary specifications were announced, NMFS indicated that the
final specifications could be higher or lower, depending on the
information resulting from the new survey and stock assessment on
whiting.
At its March 1996 meeting in Portland, OR, the Council reviewed the
new stock assessment, which indicated that the biomass of 3-year-old
whiting was 60 percent greater than expected, and that a moderate
abundance of 2-year-old fish will be recruited to the fishery in 1996.
However, the Council recommended delaying the return to the moderate
exploitation rate until resolution of new questions concerning the
correct hydroacoustic target strength used in estimating biomass. The
target strength calibrates the hydroacoustic survey data into absolute
biomass of whiting. Even so, by applying the conservative exploitation
rate to the new stock assessment, the Council's final ABC
recommendation (U.S. and Canadian combined) of 265,000 mt is 42,000 mt
higher than the 1995 ABC of 223,000 mt and more than double the
preliminary ABC of 123,000 mt. (Under the new stock assessment, a
moderate exploitation rate would have led to a 1996 ABC of 369,000 mt.)
The Council also confirmed its preliminary recommendation to set
the U.S. harvest guideline at 80 percent of the U.S.-Canadian ABC.
Therefore, the final U.S. harvest guideline is 212,000 mt for 1996. If
Canada adopts the same ABC and calculates its share as 30 percent of
the total catch, as in the recent past, the U.S.-Canadian ABC will be
exceeded by about 14 percent. These overages have not caused a
biological problem, particularly given the large increase in the ABC in
1994 and use of the conservative exploitation rate in 1994-96. The
total harvest will not reach the overfishing level. Bilateral
discussions with Canada are expected to continue.
The whiting harvest guideline in 1996 is designated entirely for
domestic harvesting and processing, and there is no surplus for joint
venture or foreign fishing operations.
Public comments on the preliminary whiting specifications were
requested through February 5, 1996, but none were received. Whiting
caught in 1996
[[Page 18989]]
before the effective date of this action will be counted toward the new
harvest guideline.
Other Changes to the Whiting Fishery
The start of the regular whiting season north of 42 deg. N. lat. is
changed from April 15 to May 15 (61 FR 16402, April 15, 1996). In
addition, NMFS has proposed a framework regulation for implementing the
treaty rights of certain Washington State coastal treaty Indian tribes
and presented options for an allocation to the Makah tribe in 1996 (61
FR 10303, March 13, 1996). This proposal also appears in a separate
Federal Register document, and is not yet approved. Other
specifications and management measures announced at (61 FR 279, January
4, 1996) or at 50 CFR part 663 are not changed by this action except as
corrected.
Correction of Publication
In the publication of the annual specifications and management
measures on January 4, 1996 (I.D. 121295C), in the table on page 280,
under ``roundfish,'' the entry for pacific whiting, under ``rockfish,''
the entries thornyheads, yellowtail, and the text of footnotes d and n
at the end of the table are corrected as set forth. For the convenience
of the user, the table is revised to include these changes to read as
follows:
BILLING CODE 3510-22-W
[[Page 18990]]
[GRAPHIC] [TIFF OMITTED] TR30AP96.002
[[Page 18991]]
[GRAPHIC] [TIFF OMITTED] TR30AP96.003
[[Page 18992]]
[GRAPHIC] [TIFF OMITTED] TR30AP96.004
[[Page 18993]]
[GRAPHIC] [TIFF OMITTED] TR30AP96.005
BILLING CODE 3510-22-C
[[Page 18994]]
Classification
The final specifications and management measures for 1996 are
issued under the authority of the Magnuson Fishery Conservation and
Management Act and are in accordance with 50 CFR parts 611 and 663, the
regulations implementing the FMP.
NMFS finds good cause, pursuant to 5 U.S.C. 553(d)(3), to waive a
portion of the 30-day delay in effectiveness, so that this rule may
become effective before the fishery begins on May 15, 1996. The initial
whiting specifications were announced January 4, 1996 (61 FR 27), and
explained clearly to the public that the harvest guideline might be
adjusted later by notice in the Federal Register. This final rule is
that notice. Since this action has been publicized widely through the
Council process, the industry is aware of the increase and would be
hurt if the final specifications were not effective on May 15. Since
the at-sea processing sector is capable of taking its share of the
harvest guideline within less than a month, delaying full releases of
the harvest guideline may cause an unnecessary disruption in fishing.
Therefore, it would be contrary to the public interest to delay the
effectiveness of the rule beyond the start of the fishery.
Dated: April 23, 1996.
Gary Matlock,
Program Management Officer, National Marine Fisheries Service.
[FR Doc. 96-10663 Filed 4-29-96; 8:45 am]
BILLING CODE 3510-22-W
Complete official Federal Register PDF
FR Doc. 96-10658 Drawbridge Operation Regulations; Manchester Harbor, MA
[Federal Register Volume 61, Number 84 (Tuesday, April 30, 1996)]
[Rules and Regulations]
[Pages 18946-18948]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-10658]
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DEPARTMENT OF TRANSPORTATION
33 CFR Part 117
[CGD01-96-035]
RIN 2115-AE47
Drawbridge Operation Regulations; Manchester Harbor, MA
AGENCY: Coast Guard, DOT.
ACTION: Temporary final rule with request for comments.
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SUMMARY: The Coast Guard is temporarily changing the operating rules
that govern the Massachusetts Bay Transportation Authority (MBTA)
Bridge at mile 1.0, in Manchester, Massachusetts. This change will
require the bridge to be crewed for eight additional hours each day
during the 1996 boating season and will modify the advance notice
requirement for the 11 p.m. to 7 a.m. time period. This temporary final
rule is based upon comments received as a result of a temporary
deviation implemented by the Coast Guard during the 1994 boating season
and a final temporary rule implemented for the 1995 boating season. The
comments received from the mariners indicated their navigational needs
require the bridge to be crewed from 7 a.m. to 11 p.m. during the
boating season.
EFFECTIVE DATE: This temporary final rule is effective from May 27,
1996, through September 30, 1996. Comments must be received on or
before October 31, 1996.
ADDRESSES: Comments should be mailed to Commander (obr), First Coast
Guard District, Captain John Foster Williams Federal Building, 408
Atlantic Ave., Boston, Massachusetts 02110-3350. Comments also may be
hand-delivered to room 628 at the same address between 6:30 a.m. and 3
p.m., Monday through Friday, except federal holidays. The telephone
number is (617) 223-8364. Comments will become part of this docket and
will be available for inspection or copying at the above address.
FOR FURTHER INFORMATION CONTACT:
John W. McDonald, Project Officer, Bridge Branch, (617) 223-8364.
SUPPLEMENTARY INFORMATION:
Request for Comments
Interested persons are invited to participate in this rulemaking by
submitting written views, comments, data, or arguments. Persons
submitting comments should include their names and addresses, identify
this rulemaking (CGD01-95-052), the specific section of this rule to
which each comment applies, and give reasons for each comment. The
Coast Guard requests that all comments and attachments be submitted in
an 8\1/2\'' x 11'' unbound format suitable for copying and electronic
filing. If that is not practical, a second copy of any bound material
is requested. Persons desiring acknowledgment that their comments have
been received should enclose a stamped, self-addressed post card or
envelope.
The Coast Guard will consider all comments received during the
comment period, and may change this proposal in light of comments
received. The Coast Guard plans no public hearing. Persons may request
a public hearing by writing to Commander (obr), First Coast Guard
District at the address listed under ADDRESSES. The request should
include reasons why a hearing would be beneficial. If it determines
that the opportunity for oral presentations will aid this rulemaking,
the Coast Guard will hold a public hearing at a time and place
announced by a later notice in the Federal Register.
In accordance with 5 U.S.C. 553(6) good cause exists for publishing
a temporary final rule without a prior comment period. It is in the
public interest to have a rule increasing the hours the bridge is
operated in effect before the Memorial Day weekend, the beginning of
the 1996 boating season. Delaying this rule to provide for a notice and
comment period would be impracticable, unnecessary and contrary to the
public interest. Due to the manner in which openings are conducted, a
greater number of openings does not cause delays to the commuter trains
using the bridge. The MBTA has been advised of the extra hours that the
bridge will be required to be crewed during the 1996 boating season and
the need for comprehensive record keeping. This test period will allow
the Coast Guard to fully evaluate marine traffic patterns and costs to
the MBTA. After this test period, the Coast Guard will evaluate the
comments received and prepare a notice of proposed rulemaking to
permanently change the operating schedule if appropriate.
Regulatory History
On June 14, 1994, a temporary deviation effective during the 1994
boating season from the operating regulations for the MBTA Bridge was
published in the Federal Register (59 FR 30524; June 14, 1994). The
Coast Guard received three letters and seven petitions. A public
hearing was not requested and one was not held.
On July 17, 1995, the Coast Guard implemented a temporary final
rule (60 FR 36357; July 17, 1995) which was effective for the 1995
boating season. The Coast Guard received 22 letters and three
petitions. A public hearing was not requested and one was not held.
Background and Purpose
The MBTA Bridge over Manchester Harbor has a vertical clearance of
6' above mean high water (MHW) and 15' above mean low water (MLW). The
existing operating regulations at 33 CFR 117.603 require that the
bridge open on signal from 1 April through 1 November from 9 a.m. to 6
p.m., with a one hour lunch closure between 1 p.m. and 2 p.m. daily.
The Coast Guard received a request in May, 1994, from the
Manchester Harbormaster/Chief of Police and several mariners located
upstream of the bridge to extend the hours that the Manchester MBTA
Bridge be required to open on signal during the peak boating season. On
June 14, 1994, the Coast Guard published a temporary (90 day) deviation
(59 FR 30524; June 14, 1994) from the operating regulations to evaluate
changes to the operating rules during the 1994 boating season. The
temporary deviation extend the hours that the bridge was crewed by an
additional five hours a day, from June 3 through August 31, 1994. It
required the bridge to be crewed from 8 a.m. to 9 p.m. daily and
eliminated the one hour lunch hour closure from 1 p.m. to 2 p.m. each
day.
The Coast Guard received only one letter during the comment period
that closed October 31, 1994. The MBTA, the bridge owner, opposed the
proposal to extend the operating hours of the bridge. Their objection
was based upon the
[[Page 18947]]
additional cost of $16,000 for crewing the bridge during the 1994 test
period. The Coast Guard requested additional bridge log data from the
MBTA to evaluate the impact of the deviation. The MBTA did not provide
the requested data.
The Coast Guard did not proceed with a permanent change to the
regulations immediately after the temporary deviation expired since
only one comment letter was received within the comment period. The
mariners who originally requested the changes to the operating rules
did not provide comments until March 15, 1995, well after the comment
period for the temporary deviation ended. These comments included seven
petition letters, one letter representing forty-five boat owners
located upstream of the bridge at the Manchester Harbor Marina and one
letter from the Manchester Harbormaster/Chief of Police. All these
letters were in favor of increasing the operating hours for the bridge.
During the summer of 1995, the Coast Guard implemented a temporary
final rule (60 FR 36357; July 17, 1995) which tested an operating
schedule from July 17, 1995, through September 30, 1995, which
increased the period that the bridge opened on signal by three hours
from 6 p.m. to 9 p.m. After the test period ended, the Coast Guard
received 20 letters from mariners. Three petitions with a total of 40
signatures, a letter from Manchester Harbor Marina, and a letter from
the Manchester Harbor Boat Club with 200 members were received
requesting that the operating rules be changed to require the bridge to
open on signal from 7 a.m. to 11 p.m. each day, Memorial Day through
the end of September. The mariners requested the extended bridge
operating hours so that they could get underway at a reasonable time in
the morning and also be able to return to their moorings in the evening
after their evening racing or sailing. One letter requesting that the
hours remain unchanged was received from the bridge owner, the MBTA.
The MBTA objected to the extra operating hours based upon a $27,000
additional cost to crew the bridge during the 1995 test period. As in
1994, copies of the bridge logs were not submitted by the bridge owner
as requested by the Coast Guard.
The Coast Guard believes that there is good cause to test the hours
of 7 a.m. to 11 p.m. based on the mariners comments and the fact that
these hours have not been tested previously. Also, records of openings
provided by the bridge owner regarding previous test periods have been
incomplete and are therefore inconclusive. Complete records of openings
during the scheduled test period will be considered by the Coast Guard
for future rulemaking.
This temporary final rule extends the operating hours requiring the
bridge to open on signal from May 27, 1996, to September 30, 1996, from
7 a.m. to 11 p.m. each day. Additionally, the advance notice
requirement for openings from 11 p.m. to 7 a.m. is being changed from
the existing two and five hour advance notice to a four hours advance
notice from Memorial Day to the end of September. The existing
requirement to provide two hours notice from 6:45 a.m. to 3:45 p.m. and
at least five hours notice from 3:45 p.m. to 6:45 a.m. is confusing and
difficult for mariners to recall while at sea or when they do not have
access to a copy of the requirements. The Coast Guard will evaluate the
effect of the four hour advance notice requirement during the 1996
boating season and may propose a modification of the requirement as a
result of comments received.
Discussion of Proposed Amendments
This temporary final rule requires the bridge to open on signal
from 7 a.m. to 11 p.m. from May 27, 1996, (Memorial Day) through
September 30, 1996, an additional eight hours a day. In addition, a
four hour advance notice for openings will be required from 11 p.m. to
7 a.m. during this same test period.
At present, mariners are forced either to return early after
sailing or tie up at locations outside of the bridge (and the inner
harbor where their moorings are located) if they return after 6 p.m.
The harbormaster indicated that the increased operating hours would
provide a safety advantage in the event of an emergency situation.
Planned and emergency patrols would be able to transit through the
bridge to the inner harbor on a more frequent basis in the event of a
vessel in distress or a vessel on fire.
Regulatory Evaluation
This rule is not a significant regulatory action under section 3(f)
of Executive Order 12866, and does not require an assessment of
potential costs and benefits under section 6(a)(3) of that order. It
has not been reviewed by the Office of Management and Budget under that
order. It is not significant under the regulatory policies and
procedures of the Department of Transportation (DOT) (44 FR 11040;
February 26, 1979). The Coast Guard expects the economic impact of this
rule to be so minimal that a full Regulatory Evaluation, under
paragraph 10e of the regulatory policies and procedures of DOT, is
unnecessary.
Small Entities
Under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.), the
Coast Guard must consider whether this action will have a significant
economic impact on a substantial number of small entities. ``Small
entities'' include independently owned and operated small businesses
that are not dominant in their field and that otherwise qualify as
``small business concerns'' under section 3 of the Small Business Act
(15 U.S.C. 632). Because of the reasons discussed in the Regulatory
Evaluation above, the Coast Guard certifies under 5 U.S.C. 605(b) that
this action, if adopted, will not have a significant economic impact on
a substantial number of small entities. If, however, you think that
your business or organization qualifies as a small entity and that this
rule will have a significant economic impact on your business or
organization, please submit a comment (see ADDRESSES) explaining why
you think it qualifies and in what way and to what degree this rule
will economically affect it.
Collection of Information
This rule contains no collection of information requirements under
the Paperwork Reduction Act (44 U.S.C. 3501 et seq.).
Federalism
The Coast Guard has analyzed this rule in accordance with the
principles and criteria contained in Executive Order 12612, and it has
determined that this regulation does not have sufficient federalism
implications to warrant preparation of a Federalism Assessment.
Environment
The Coast Guard considered the environmental impact of this rule
and concluded that, under section 2.B.2.e.(32)(e) of Commandant
Instruction M16475.1B, this proposal is categorically excluded from
further environmental documentation.
List of Subjects in 33 CFR Part 117
Bridges.
Temporary Regulations
For the reasons set out in the preamble, the Coast Guard amends 33
CFR part 117 as follows:
PART 117--DRAWBRIDGE OPERATION REGULATIONS
1. The authority citation for part 117 continues to read as
follows:
Authority: 33 U.S.C. 499; 49 CFR 1.46; 33 CFR 1.05-1(g); section
117.255 also issued under the authority of Pub. L. 102-587, 106
Stat. 5039.
[[Page 18948]]
2. Section 117.603 is suspended and a new 117.604 is added to read
as follows:
Sec. 117.604 Manchester Harbor.
The Massachusetts Bay Transportation Authority Bridge at mile 1.0,
in Manchester, shall operate as follows:
(a) The draw shall open on signal from 7 a.m. to 11 p.m. each day.
(b) At all other times, at least four hours advance notice for
openings is required by calling the number posted at the bridge.
Dated: April 22, 1996.
J.L. Linnon,
Rear Admiral, U.S. Coast Guard, Commander, First Coast Guard District.
[FR Doc. 96-10658 Filed 4-29-96; 8:45 am]
BILLING CODE 4910-14-M
Complete official Federal Register PDF
FR Doc. 96-10657 Clean Air Act Final Full Approval of Operating Permits Program; Knox County Department of Air Pollution Control, Knox County, Tennessee
[Federal Register Volume 61, Number 84 (Tuesday, April 30, 1996)]
[Rules and Regulations]
[Pages 18966-18968]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-10657]
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 70
[TN-KNOX-95-01; FRL-5464-1]
Clean Air Act Final Full Approval of Operating Permits Program;
Knox County Department of Air Pollution Control, Knox County, Tennessee
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final full approval.
-----------------------------------------------------------------------
SUMMARY: The EPA is promulgating full approval of the title V operating
permits program submitted by the State of Tennessee on behalf of the
Department of Air Pollution Control (``Knox County'' or ``the
County''), located in the geographic area of Knox County. The County's
program was submitted for the purpose of complying with Federal
requirements which mandate that states or local authorities develop,
and submit to EPA, programs for issuing operating permits to all major
stationary sources, and to certain other sources.
EFFECTIVE DATE: May 30, 1996.
ADDRESSES: Copies of the Knox County submittal and other supporting
information used in developing the final full approval are available
for inspection during normal business hours at the following location:
U.S. Environmental Protection Agency, Region 4, 345 Courtland Street
NE, Atlanta, Georgia 30365, on the 3rd floor of the Tower Building.
Interested persons wanting to examine these documents, contained in EPA
docket number TN-KNOX-95-01, should make an appointment at least 24
hours before the visiting day.
FOR FURTHER INFORMATION CONTACT: Gracy R. Danois, Title V Program
Development Team, Air Programs Branch, Air, Pesticides & Toxics
Management Division, U.S. Environmental Protection Agency, Region 4,
345 Courtland Street, NE, Atlanta, Georgia 30365, (404) 347-3555, Ext.
4150.
SUPPLEMENTARY INFORMATION:
I. Background and Purpose
A. Introduction
Title V of the 1990 Clean Air Act Amendments (sections 501-507 of
the
[[Page 18967]]
Clean Air Act (``the Act'')), and implementing regulations at 40 Code
of Federal Regulations (CFR) part 70 require that states or authorized
local agencies develop and submit operating permits programs to EPA by
November 15, 1993, and that EPA act to approve or disapprove each
program within one year after receiving the submittal. 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. Where a program substantially, but not fully, meets the
requirements of part 70, EPA may grant the program interim approval for
a period of up to two years. If EPA has not fully approved a program by
November 15, 1995, or by the end of an interim program, it must
establish and implement a Federal program.
On November 8, 1995, EPA proposed full approval, or in the
alternative, interim approval of the operating permits program for Knox
County. See 60 FR 56281. The November 8, 1995, Federal Register
document also proposed approval of the County's interim mechanism for
implementing section 112(g) and for delegation of section 112 standards
as promulgated. EPA did not receive any comments on the proposal. On
March 6, 1996, the State of Tennessee submitted on behalf of Knox
County a package containing revisions to the operating permits program,
which addressed the deficiencies discussed in the full/interim approval
document. As required in the November 8, 1995, Federal Register
document, the County made the following revisions to the Knox County
Air Pollution Control (K.C.A.P.C.) regulations:
1. K.C.A.P.C. section 25.70.7.e.2.i.B was amended to include the
following language: ``Notwithstanding paragraphs e.2.i.A and e.3.i. of
this section, minor permit modification procedures may be used for
permit modifications involving the use of economic incentives,
marketable permits, emissions trading, and other similar approaches, to
the extent that such minor permit modification procedures are
explicitly provided for in an applicable implementation plan or in
applicable requirements promulgated by EPA. The Department may
establish additional requirements for such permit conditions.''
2. K.C.A.P.C. section 30.1.D was amended to include the following
statement: ``These penalties shall be recoverable in a maximum amount
of $25,000 per day per violation as provided by state law.''
3. K.C.A.P.C. section 30.1.G was amended to include the following
language: ``The Director has the authority to restrain or enjoin
immediately and effectively any person, by order or by suit in court,
from engaging in any activity in violation of a permit or the Knox
County Air Pollution Control Regulations that is presenting an imminent
and substantial endangerment to the public health or welfare, or the
environment.''
4. K.C.A.P.C. section 30.1.F was amended to include the following
statement at the end of the section: ``Such actions may be taken by the
Director without the necessity of a prior revocation of any permit.''
These changes and other minor revisions to the County's title V
program became locally effective on January 10, 1996.
In this action, EPA is promulgating full approval of the Knox
County title V operating permits program, and approving the section
112(g) and section 112(l) mechanisms noted above.
II. Final Action and Implications
A. Title V Operating Permits Program
The EPA is promulgating full approval of the title V operating
permits program submitted by the State of Tennessee, on behalf of Knox
County, on November 12, 1993, and supplemented on August 24, 1994;
January 6 and 19, 1995; February 6, 1995; May 23, 1995; September 18
and 25, 1995; and March 6, 1996. The November 8, 1995, Federal Register
notice established that Knox County would receive full approval of its
program if the changes to the County's regulations described in the
previous section were adopted prior to final promulgation. Knox County
has demonstrated that the program is adequate to meet the minimum
elements of a state or local operating permits program as specified in
40 CFR part 70.
The scope of the County's part 70 program approved in this document
applies to all part 70 sources (as defined in the approved program)
within Knox County, except any sources of air pollution over which an
Indian Tribe has jurisdiction. See, e.g., 59 FR 55813, 55815-18 (Nov.
9, 1994). The term ``Indian Tribe'' is defined under the Act as ``any
Indian tribe, band, nation, or other organized group or community,
including any Alaska Native village, which is Federally recognized as
eligible for the special programs and services provided by the United
States to Indians because of their status as Indians.'' See section
302(r) of the CAA; see also 59 FR 43956, 43962 (Aug. 25, 1994); 58 FR
54364 (Oct. 21, 1993).
B. Preconstruction Permit Program Implementing Section 112(g)
EPA is approving the use of Knox County's preconstruction review
program found in K.C.A.P.C. section 25.1 as a mechanism to implement
section 112(g) during the transition period between promulgation of
EPA's section 112(g) rule and the County's adoption of rules
specifically designed to implement section 112(g). This approval is
limited to the implementation of the 112(g) rule and is effective only
during any transition time between the effective date of the 112(g)
rule and the adoption of specific rules by Knox County to implement
section 112(g). The duration of this approval is limited to 18 months
following promulgation by EPA of section 112(g) regulations, to provide
the County with adequate time to adopt regulations consistent with
Federal requirements.
C. Program for Delegation of Section 112 Standards as Promulgated
Requirements for approval, specified in 40 CFR 70.4(b), encompass
section 112(l)(5) requirements for approval of a program for delegation
of section 112 standards as promulgated by EPA as they apply to part 70
sources. Section 112(l)(5) requires that the County's program contain
adequate authorities, adequate resources for implementation, and an
expeditious compliance schedule, which are also requirements under part
70. Therefore, the EPA is also promulgating approval under section
112(l)(5) and 40 CFR 63.91 of Knox County's program for receiving
delegation of section 112 standards and programs that are unchanged
from Federal rules as promulgated. In addition, EPA is approving the
delegation of all existing standards and programs under 40 CFR parts 61
and 63. This program for delegation applies to both part 70 sources and
non-part 70 sources.
III. Administrative Requirements
A. Docket
Copies of the Knox County submittal and other information relied
upon for the final full approval are contained in docket number TN-
KNOX-95-01 maintained at the EPA Regional Office. 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.
[[Page 18968]]
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.
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: April 19, 1996.
A. Stanley Meiburg,
Acting Regional Administrator.
Part 70, title 40 of the Code of Federal Regulations 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 paragraph (c) to the
entry for Tennessee to read as follows:
Appendix A to Part 70--Approval Status of State and Local Operating
Permits Programs
* * * * *
Tennessee
* * * * *
(c) The Knox County Department of Air Pollution Control; submitted
on November 12, 1993, and supplemented on August 24, 1994; January 6
and 19, 1995; February 6, 1995; May 23, 1995; September 18 and 25,
1995; and March 6, 1996; full approval effective on May 30, 1996, in
the Federal Register.
* * * * *
[FR Doc. 96-10657 Filed 4-29-96; 8:45 am]
BILLING CODE 6560-50-P
Complete official Federal Register PDF
FR Doc. 96-10600 Office of the Assistant Secretary for Housing-Federal Housing Commissioner; Revision of FHA Multifamily Processing and Fees; Technical Correction
[Federal Register Volume 61, Number 84 (Tuesday, April 30, 1996)]
[Rules and Regulations]
[Page 18944]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-10600]
=======================================================================
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DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT
24 CFR Parts 200, 232, and 241
[Docket No. FR-3349-C-04]
RIN 2502-AF74
Office of the Assistant Secretary for Housing-Federal Housing
Commissioner; Revision of FHA Multifamily Processing and Fees;
Technical Correction
AGENCY: Office of the Assistant Secretary for Housing-Federal Housing
Commissioner, HUD.
ACTION: Final rule; technical correction.
-----------------------------------------------------------------------
SUMMARY: This document contains a correction to the final rule which
was published on Monday, April 1, 1996, (61 FR 14410). That final rule
concerned FHA multifamily mortgage insurance.
EFFECTIVE DATE: May 1, 1996.
FOR FURTHER INFORMATION CONTACT: Jane Luton, Director, New Products
Division, Office of Multifamily Housing Development, Room 6138,
Department of Housing and Urban Development, 451 Seventh Street, SW,
Washington, DC 20410-8000, telephone (202) 708-2556. (This is not a
toll-free telephone number.) Hearing- or speech-impaired may access
this number via TTY by calling the Federal Information Relay Service at
1-800-877-8339.
SUPPLEMENTARY INFORMATION:
Background
The final rule that is the subject of these corrections revised 24
CFR 200.40 and 200.45 of the FHA multifamily mortgage insurance
regulations to increase processing/commitment fees and to make certain
changes in the stages of processing.
Need for Correction
As published, the preamble to final regulations omitted a word
which may prove to be misleading.
Accordingly, FR Doc. 96-7640, a final rule published in the Federal
Register on April 1, 1996 (61 FR 14410), is corrected as follows:
On page 14411, in the preamble, in the first column, in the first
paragraph under the heading ``4. Elimination of Conditional Commitment
Stage,'' the third line is corrected by adding the word ``except''
after the word ``stage''.
Dated: April 18, 1996.
Stephanie A. Smith,
Acting General Deputy, Assistant Secretary for Housing-Federal Housing
Commissioner.
[FR Doc. 96-10600 Filed 4-29-96; 8:45 am]
BILLING CODE 4210-27-P
Complete official Federal Register PDF
FR Doc. 96-10568 Approval and Promulgation of Implementation Plans and Delegation of 112(l); State of Iowa
[Federal Register Volume 61, Number 84 (Tuesday, April 30, 1996)]
[Rules and Regulations]
[Pages 18958-18959]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-10568]
=======================================================================
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[IA 003-1003; FRL-5455-4]
Approval and Promulgation of Implementation Plans and Delegation
of 112(l); State of Iowa
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: On August 4, 1995, the EPA published a proposed rulemaking to
approve Iowa's voluntary operating permit program to serve as an
alternative for sources otherwise subject to Title V of the Clean Air
Act (the Act). No adverse comments were received on the proposed
rulemaking. The EPA is now taking final action to approve this program.
EFFECTIVE DATE: This rule will become effective on May 30, 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 39907, dated August 4, 1995, the
EPA published a proposed rulemaking to approve Iowa's voluntary
operating permit program as part of the State Implementation Plan (SIP)
and pursuant to section 112(l) of the Act. This program serves as an
alternative for sources which might otherwise be subject to Title V. In
Section V of the August 4, 1995, Federal Register document proposing
approval of Iowa's program, the EPA cited four regulatory deficiencies
for the state to correct in order for EPA to proceed with final
rulemaking. These four deficiencies concerned the definition of 12-
month rolling period; fugitive emissions; eligibility for a voluntary
permit; and a requirement that permit limitations, controls, and
requirements be enforceable as a practical matter. The state adopted
these changes and submitted them to the EPA under the signature of
Larry Wilson, Director, Iowa Department of Natural Resources, on
February 16, 1996. For further information on these items, the reader
should consult the proposed rulemaking and the technical support
document.
[[Page 18959]]
In a subsequent matter not contemplated in the proposed rulemaking,
the state has made one regulatory change concerning when a source shall
apply for a voluntary operating permit. In the original rule, the date
of March 1, 1995, was specified. However, due to the delay in receiving
approval of the program, the state revised its rule at 22.203(1)a(1) to
read that applications are due 90 days after approval of the state's
Title V program (October 1, 1995).
This change became effective on February 24, 1995, and was
submitted to the EPA under the Director's signature on February 27,
1996. This change is approvable by the EPA because it is
noncontroversial and it precludes sources from the tenuous position of
applying for a program not yet approved (which the original rule did
not anticipate).
EPA Action
The EPA is taking final action to approve revisions submitted on
December 8, 1994; February 16, 1996; and February 27, 1996, for the
state of Iowa. This action makes the state's program a federally
enforceable part of the SIP, and also makes such permits federally
enforceable for hazardous air pollutants by means of EPA's approval
under section 112(l).
Nothing in this action should be construed as permitting or
allowing or establishing a precedent for any future request for
revision to any SIP. Each request for revision to the SIP shall be
considered separately in light of specific technical, economic, and
environmental factors, and in relation to relevant statutory and
regulatory requirements.
SIP approvals under section 110 and subchapter I, Part D of the
Clean Air Act (CAA) do not create any new requirements, but simply
approve requirements that the state is already imposing. Therefore,
because the federal SIP approval does not impose any new requirements,
the EPA certifies that it does not have a significant impact on any
small entities affected. Moreover, due to the nature of the federal-
state relationship under the CAA, preparation of a regulatory
flexibility analysis would constitute federal inquiry into the economic
reasonableness of state action. The CAA forbids the EPA to base its
actions concerning SIPs on such grounds (Union Electric Co. v. U.S.
E.P.A., 427 U.S. 246, 256-66 (S.Ct. 1976); 42 U.S.C. 7410(a)(2)).
This action has been classified as a Table 3 action for signature
by the Regional Administrator under the procedures published in the
Federal Register on January 19, 1989 (54 2214-2225), as revised by a
July 10, 1995, memorandum from Mary Nichols, Assistant Administrator
for Air and Radiation. The Office of Management and Budget has exempted
this regulatory action from E.O. 12866 review.
Unfunded Mandates
Under sections 202, 203, and 205 of the Unfunded Mandates Reform
Act of 1995 (``Unfunded Mandates Act''), signed into law on March 22,
1995, the EPA must undertake various actions in association with
proposed or final rules that include a federal mandate that may result
in estimated costs of $100 million or more to the private sector, or to
state, local, or tribal governments in the aggregate.
Through submission of this SIP, the state has elected to adopt the
program provided for under section 110 of the CAA. These rules may bind
state and local governments to perform certain actions and also require
the private sector to perform certain duties. To the extent that the
rules being finalized for approval by this action will impose new
requirements, sources are already subject to these regulations under
state law. Accordingly, no additional costs to state or local
governments, or to the private sector, result from this final action.
The EPA has also determined that this final action does not include a
mandate that may result in estimated costs of $100 million or more to
state or local governments in the aggregate or to the private sector.
The EPA has determined that these rules result in no additional costs
to tribal government.
Under section 307(b)(1) of the CAA, petitions for judicial review
of this action must be filed in the United States Court of Appeals for
the appropriate circuit by July 1, 1996. Filing a petition for
reconsideration by the Administrator of this final rule does not affect
the finality of this rule for the purposes of judicial review, nor does
it extend the time within which a petition for judicial review may be
filed, and shall not postpone the effectiveness of such rule or action.
This action may not be challenged later in proceedings to enforce its
requirements. (See section 307(b)(2).)
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Carbon monoxide,
Hydrocarbons, Incorporation by reference, Intergovernmental relations,
Lead, Nitrogen dioxide, Ozone, Particulate matter, Reporting and
recordkeeping requirements, Sulfur oxides, Volatile organic compounds.
Dated: March 25, 1996.
William Rice,
Acting Regional Administrator.
Part 52, chapter I, title 40 of the Code of Federal Regulations is
amended as follows:
PART 52--[AMENDED]
1. The authority citation for part 52 continues to read as follows:
Authority: 42 U.S.C. 7401-7671q.
Subpart Q--Iowa
2. Section 52.820 is amended by adding paragraph (c)(63) to read as
follows:
Sec. 52.820 Identification of plan.
* * * * *
(c) * * *
(63) On December 8, 1994; February 16, 1996; and February 27, 1996,
the Director of the Iowa Department of Natural Resources submitted
revisions to the State Implemenation Plan (SIP) to create a voluntary
operating permit program as an alternative to Title V. These revisions
strengthen maintenance of established air quality standards.
(i) Incorporation by reference.
(A) ``Iowa Administrative Code,'' sections 567-22.200-22.208,
effective December 14, 1994. These rules create the voluntary operating
permit program.
(B) ``Iowa Administrative Code,'' sections 567-22.201(1)``a'' and
22.206(1)``h'', effective January 11, 1995.
(C) ``Iowa Administrative Code,'' section 567-22.203(1)``a''(1),
effective February 24, 1995.
(D) ``Iowa Administrative Code,'' sections 567-20.2; 22.200;
22.201(1)``a'' and ``b''; 22.201(2)``a''; and 22.206(2)``c'', effective
October 18, 1995.
(ii) Additional material.
(A) Letter from Allan E. Stokes, Iowa Department of Natural
Resources, to William A. Spratlin, U.S. EPA, dated February 16, 1995.
This letter outlines various commitments by the state to meet
requirements outlined by the EPA.
[FR Doc. 96-10568 Filed 4-29-96; 8:45 am]
BILLING CODE 6560-50-P
Complete official Federal Register PDF
FR Doc. 96-10566 Approval and Promulgation of Implementation Plans; California State Implementation Plan Revision; Ventura County Air Pollution Control District; Sacramento Metropolitan Air Quality Management Division; Placer County Air Pollution Control District
[Federal Register Volume 61, Number 84 (Tuesday, April 30, 1996)]
[Rules and Regulations]
[Pages 18959-18962]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-10566]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[CA153-2-7274a FRL-5459-3]
Approval and Promulgation of Implementation Plans; California
State Implementation Plan Revision; Ventura County Air Pollution
Control District; Sacramento Metropolitan Air Quality Management
Division; Placer County Air Pollution Control District
AGENCY: Environmental Protection Agency (EPA).
[[Page 18960]]
ACTION: Direct final rule.
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SUMMARY: EPA is taking direct final action on revisions to the
California State Implementation Plan. The revisions concern rules from
the Ventura County Air Pollution Control District (VCAPCD), the
Sacramento Metropolitan Air Quality Management Division (SMAQMD), and
the Placer County Air Pollution Control District (PCAPCD). This
approval action will incorporate three rules into the federally
approved SIP. The intended effect of approving these rules is to
regulate emissions of oxides of nitrogen (NOX) in accordance with
the requirements of the Clean Air Act, as amended in 1990 (CAA or the
Act). The rules control NOX emissions from natural gas-fired
central furnaces, stationary internal combustion engines, and biomass
boilers.
DATES: This action is effective on July 1, 1996, unless adverse or
critical comments are received by May 30, 1996. If the effective date
is delayed, a timely notice will be published in the Federal Register.
ADDRESSES: Copies of the rules and EPA's evaluation report for each
rule are available for public inspection at EPA's Region IX office
during normal business hours. Copies of the submitted rules are
available for inspection at the following locations:
Rulemaking Section (A-5-3), Air and Toxics Division, U.S. Environmental
Protection Agency, Region IX, 75 Hawthorne Street, San Francisco, CA
94105.
Environmental Protection Agency, Air Docket (6102), 401 ``M'' Street,
S.W., Washington, D.C. 20460.
California Air Resources Board, Stationary Source Division, Rule
Evaluation Section, 2020 ``L'' Street, Sacramento, CA 95814.
Ventura County Air Pollution Control District, Rule Development
Section, 669 County Square Drive, Ventura, CA 93003.
Sacramento Metropolitan Air Quality Management District, Rule
Development Section, 8411 Jackson Road, Sacramento, CA 95826.
Placer County Air Quality Management District, Rule Development, 11464
B. Avenue, Auburn, CA 95603.
FOR FURTHER INFORMATION CONTACT: Wendy Colombo, Rulemaking Section (A-
5-3), Air and Toxics Division, U.S. Environmental Protection Agency,
Region IX, 75 Hawthorne Street, San Francisco, CA 94105, Telephone:
(415) 744-1202.
Applicability
This notice addresses EPA's direct final action for the following
rules:
VCAPCD, Rule 74.22, Natural Gas-Fired, Central Fan- Type
Furnaces;
SMAQMD, Rule 412, Stationary Internal Combustion Engines
Located at Major Stationary Sources; and
PCAPCD, Rule 233, Biomass Boilers.
The rules were adopted by the districts, submitted by the State of
California, and found complete pursuant to EPA's completeness criteria
set forth in 40 CFR Part 51 Appendix V \1\ on the following dates:
---------------------------------------------------------------------------
\1\ EPA adopted the completeness criteria on February 16, 1990
(55 FR 5830) and, pursuant to section 110(k)(1)(A) of the CAA,
revised the criteria on August 26, 1991 (56 FR 42216).
---------------------------------------------------------------------------
Rule 74.22--November 9, 1993; February 11, 1994; April 11,
1994.
Rule 412--June 1, 1995; June 23, 1995; June 30, 1995.
Rule 233--October 6, 1994; October 19, 1994; October 21,
1995.
Background:
On November 15, 1990, the Clean Air Act Amendments of 1990 (CAA)
were enacted. Pub. L. 101-549, 104 Stat. 2399, codified at 42 U.S.C.
7401-7671q. The air quality planning requirements for the reduction of
NOX emissions through reasonably available control technology
(RACT) are set out in section 182(f) of the CAA. On November 25, 1992,
EPA published a notice of proposed rulemaking entitled ``State
Implementation Plans; Nitrogen Oxides Supplement to the General
Preamble; Clean Air Act Amendments of 1990 Implementation of Title I;
Proposed Rule,'' (the NOX Supplement) which describes the
requirements of section 182(f). The NOX Supplement should be
referred to for further information on the NOX requirements and is
incorporated into this document by reference. Section 182(f) of the
Clean Air Act requires States to apply the same requirements to major
stationary sources of NOX (``major'' as defined in section 302 and
section 182 (c), (d), and (e)) as are applied to major stationary
sources of volatile organic compounds (VOCs), in moderate or above
ozone nonattainment areas. The Sacramento Metropolitan Area (including
part of Placer County) and the Ventura County Area are classified as a
severe nonattainment areas for ozone.\2\. Both areas are subject to the
RACT requirements of section 182(b)(2), cited above.
---------------------------------------------------------------------------
\2\ The Sacramento Metropolitan (including Placer) and Ventura
areas were designated nonattainment and classified by operation of
law pursuant to sections 107(d) and 181(a) upon the date of
enactment of the CAA. See 55 FR 56694 (November 6, 1991). The
Sacramento Metropolitan Area was reclassified from serious to severe
on June 1, 1995. See 60 FR 20237 (April 25, 1995).
---------------------------------------------------------------------------
Section 182(b)(2) requires submittal of RACT rules for major
stationary sources of VOC emissions (not covered by a pre-enactment
control technique guidelines (CTG) document or a post-enactment CTG
document) by November 15, 1992. There were no NOX CTGs issued
before enactment and EPA has not issued a CTG document for any NOX
category since enactment of the CAA. The RACT rules covering NOX
sources and submitted as SIP revisions are expected to require final
installation of the actual NOX controls by May 31, 1995 for those
sources where installation by that date is practicable.
NOX emissions contribute to the production of ground level
ozone and smog. The three rules control emissions of NOX from
various industries used in a wide variety of applications. The rules
were adopted as part of the VCAPCD's, SMAQMD's, and PCAPCD's efforts to
achieve and maintain the National Ambient Air Quality Standards (NAAQS)
for ozone. All three rules are required to satisfy the mandates of the
Clean Air Act requirements, and were submitted pursuant to the CAA
requirements cited above.
EPA Evaluation and Action
In determining the approvability of a NOX rule, EPA must
evaluate the rule for consistency with the requirements of the CAA and
EPA regulations, as found in section 110 and part D of the CAA and 40
CFR part 51 (Requirements for Preparation, Adoption and Submittal of
Implementation Plans). The EPA interpretations of these requirements,
which form the basis for this action, appear in the NOX Supplement
and various other EPA policy guidance documents.3 Among these
provisions is the requirement that a NOX rule must, at a minimum,
provide for the implementation of RACT for stationary sources of
NOX emissions.
---------------------------------------------------------------------------
\3\ Among other things, the pre-amendment guidance consists of
those portions of the proposed post-1987 ozone and carbon monoxide
policy that concern RACT, 52 FR 45044 (November 24, 1987); ``Issues
Relating to VOC Regulation Cutpoints, Deficiencies, and Deviations,
Clarification to Appendix D of November 24, 1987 Federal Register
Notice'' (Blue Book) (notice of availability was published in the
Federal Register on May 25, 1988).
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For the purposes of assisting state and local agencies in
developing NOX RACT rules, EPA prepared the NOX Supplement to
the General Preamble, cited above (57 FR 55620). In the NOX
Supplement, EPA provides guidance on how RACT should be determined for
major stationary sources of NOX emissions. The document sets RACT
emission levels specifically for electric utility boilers. For all
other source
[[Page 18961]]
categories, EPA expects States/Districts to establish RACT levels
comparable to those levels for utility boilers taking into account
cost, cost-effectiveness, and emission reductions.
While most of the guidance issued by EPA (previous to the NOX
Supplement) on what constitutes RACT for stationary sources has been
directed towards application for VOC sources, much of the guidance is
also applicable to RACT for stationary sources of NOX (see section
4.5 of the NOX Supplement). In addition, pursuant to section
183(c), EPA has issued alternative control techniques documents (ACTs),
that identify alternative controls for most categories of stationary
sources of NOX. The ACT documents provide information on control
technology for stationary sources that emit or have the potential to
emit 25 tons per year or more of NOX. While providing guidance and
information for States to use in making RACT determinations, the ACTs
do not establish a presumptive norm for what is considered RACT for
stationary sources of NOX. In general, the guidance documents
cited above, as well as other relevant and applicable guidance
documents, have been issued by EPA to ensure that submitted NOX
RACT rules are fully enforceable and strengthen or maintain the SIP.
Placer Rule 233 sets NOX limits at 115 parts per million (ppm)
corrected to 12% carbon dioxide (0.2096 pounds per million British
Thermal Units (lb/MMBTU)). This limit corresponds to 162 ppm corrected
to 3% oxygen. The district believes this limit meets RACT because it is
similar to the RACT limits that EPA has set for electric utility
boilers (0.20-0.50 lb/MMBTU). The district set the limits based on
current emission limitations at existing facilities in Placer county,
and is not expecting to achieve any further emissions reductions as a
result of adopting this rule. Additionally, there will be no additional
costs incurred by the sources subject to this rule as a result of its
adoption.
The California Air Resources Board RACT/BARCT Guidance 4
document for institutional, commercial, and industrial boilers suggests
a RACT limit of 70 ppm corrected to 3% O2 for such units fired
with gaseous fuel and 115-150 ppm for units fired with fuels other than
gas. EPA established RACT levels for electric utility boilers and
recommended for other source categories that States/Districts make RACT
determinations comparable to those EPA established for electric utility
boilers. This comparability should be based on several factors
including cost, cost-effectiveness, and emission reductions. Because of
the variability in application, equipment, and input and output
characteristics of different NOX source categories, comparability
cannot easily be done solely by comparing the emissions rates. That is
why EPA suggests that RACT levels should be made in comparison to the
limits set for electric utility boilers using the factors cited above.
---------------------------------------------------------------------------
\4\ Determination of Reasonably Available Control Technology and
Best Available Retrofit Control Technology for Industrial,
Institutional, and Commercial Boilers, Steam Generators, and Process
Heaters (RACT/BARCT guidance for ICI boilers), California Air
Resources Board, July 18, 1991.
---------------------------------------------------------------------------
EPA does not necessarily agree that the limits in Rule 233
represent what would generally be considered RACT for this source
category, even though the emissions rates are similar to those set for
utility boilers. However, EPA recognizes that the two sources covered
by this rule are already applying NOX reduction technology
according to their permits (district and federal). One source is
permitted at 54 ppm at 12% CO2 and the other at 115 ppm at 12%
CO2. Because these sources are currently utilizing NOX
controls, EPA believes the cost of achieving additional small
reductions of NOX to meet the general RACT limits would be cost
prohibitive. In addition, PCAPCD is not claiming any emissions
reductions in their Federal ozone attainment plan for Rule 233 and has
submitted the rule for incorporation into the SIP to prevent any
NOX emissions increases from this source category. Therefore, EPA
agrees that in this circumstance the limits set in Rule 233 for these
sources satisfies the RACT requirements of the CAA.
Ventura Rule 74.22 sets NOX emission levels at 40 nanograms
per joule of heat output (ng/J). This limit represents a 75% average
reduction from typical natural-gas fired furnaces and will be achieved
from new units being purchased and installed. The limit was chosen so
as not to require homeowners or businesses to modify furnace enclosures
when replacing existing furnaces in order to keep the costs
appropriate. The VCAPCD estimates the cost of compliance at
approximately $2.24 per pound of NOX reduced, and expects the rule
to achieve reductions of 1.5 tons per day. Final compliance is required
by May 31, 1994.
Sacramento Rule 412 sets limits for RACT and BARCT in the rule. The
RACT levels are set at 50/125/700 ppm for rich burn, lean burn, and
diesel engines, respectively. The BARCT limits are set at 25/65/80 ppm
for rich, lean, and diesel engines, respectively. The rule is
structured to allow exemptions from compliance with the emissions
limits for some units which operate at annual levels that the control
of which would not be cost-effective. The rule is expected to achieve
reductions of 2.2 tons per year. RACT is required to be implemented by
July 1, 1995.
EPA is incorporating these rules into the SIP because they
strengthen the SIP through the addition of enforceable measures such as
NOX emission limits, recordkeeping, test methods, definitions, and
compliance tests. EPA believes all three rules for these source
categories in each district satisfy the RACT requirements of the CAA. A
more detailed discussion of the sources controlled, the controls
required, and the analysis of how these controls meet RACT can be found
in the Technical Support Document (TSD) and its attachments, dated
November 1995.
EPA has evaluated the submitted rules and has determined that they
are consistent with the CAA, EPA regulations and EPA policy. All three
rules are new rules establishing RACT for their particular category,
and contain implementation dates consistent with the CAA and EPA's
policy. Therefore, all three are being approved under section 110(k)(3)
of the CAA as meeting the requirements of section 110(a) and Part D.
Nothing in this action should be construed as permitting or
allowing or establishing a precedent for any future implementation
plan. Each request for revision to the state implementation plan shall
be considered separately in light of specific technical, economic, and
environmental factors and in relation to relevant statutory and
regulatory requirements.
EPA is publishing this document without prior proposal because the
Agency views this as a noncontroversial amendment and anticipates no
adverse comments. However, in a separate document in this Federal
Register publication, the EPA is proposing to approve the SIP revision
should adverse or critical comments be filed. This action will be
effective July 1, 1996, unless, by May 30, 1996, adverse or critical
comments are received.
If the EPA receives such comments, this action will be withdrawn
before the effective date by publishing a subsequent document that will
withdraw the final action. All public comments received will then be
addressed in a subsequent final rule based on this action serving as a
proposed rule. The EPA will not institute a second comment period on
this action. Any parties interested in commenting on this action should
do so at this time. If no such comments are
[[Page 18962]]
received, the public is advised that this action will be effective July
1, 1996.
Regulatory Process
Under the Regulatory Flexibility Act, 5 U.S.C. 600 et. seq., EPA
must prepare a regulatory flexibility analysis assessing the impact of
any proposed or final rule on small entities. 5 U.S.C. 603 and 604.
Alternatively, EPA may certify that the rule will not have a
significant impact on a substantial number of small entities. Small
entities include small businesses, small not-for-profit enterprises and
government entities with jurisdiction over population of less than
50,000.
SIP approvals under sections 110 and 301(a) and subchapter I, Part
D of the CAA do not create any new requirements, but simply approve
requirements that the State is already imposing. Therefore, because the
Federal SIP-approval does not impose any new requirements, I certify
that it does not have a significant impact on any small entities
affected. Moreover, due to the nature of the Federal-state relationship
under the CAA, preparation of a regulatory flexibility analysis would
constitute Federal inquiry into the economic reasonableness of state
action. The CAA forbids EPA to base its actions concerning SIPs on such
grounds. Union Electric Co. v. U.S. E.P.A., 427 U.S. 246, 256-66 (S.
Ct. 1976); 42 U.S.C. 7410(a)(2).
Unfunded Mandates
Under Sections 202, 203, and 205 of the Unfunded Mandates Reform
Act of 1995 (``Unfunded Mandates Act''), signed into law on March 22,
1995, EPA must undertake various actions in association with proposed
or final rules that include a Federal mandate that may result in
estimated costs of $100 million or more to the private sector or to
State, local, or tribal governments in the aggregate.
Through submission of this state implementation plan or plan
revision, the State and any affected local or tribal governments have
elected to adopt the program provided for under Part D of the Clean Air
Act. These rules may bind State, local, and tribal governments to
perform certain actions and also require the private sector to perform
certain duties. The rules being approved by this action will impose no
new requirements because affected sources are already subject to these
regulations under State law. Therefore, no additional costs to State,
local, or tribal governments or to the private sector result from this
action. EPA has also determined that this final action does not include
a mandate that may result in estimated costs of $100 million or more to
State, local, or tribal governments in the aggregate or to the private
sector.
This action has been classified as a Table 3 action for signature
by the Regional Administrator under the procedures published in the
Federal Register on January 19, 1989 (54 FR 2214-2225), as revised by a
July 10, 1995 memorandum from Mary Nichols, Assistant Administrator for
Air and Radiation. The Office of Management and Budget (OMB) has
exempted this regulatory action from Executive Order 12866 review.
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Hydrocarbons,
Incorporation by reference, Intergovernmental relations, Oxides of
nitrogen, Ozone, Reporting and recordkeeping requirements, Volatile
organic compounds.
Note: Incorporation by reference of the State Implementation
Plan for the State of California was approved by the Director of the
Federal Register on July 1, 1982.
Dated: April 1, 1996.
Felicia Marcus,
Regional Administrator.
Subpart F of Part 52, Chapter I, Title 40 of the Code of Federal
Regulations is amended as follows:
PART 52--[AMENDED]
1. The authority citation for part 52 continues to read as follows:
Authority: 42 U.S.C. 7401-7671q.
Subpart F--California
2. Section 52.220 is amended by adding paragraphs (c)(195)(i)(B),
(202)(E)(i)(2), and (222)(i)(C)(3) to read as follows:
Sec. 52.220 Identification of plan.
* * * * *
(c) * * *
(195) * * *
(i) * * *
(B) Ventura County Air Pollution Control District.
(1) Rule 74.22, adopted on November 9, 1993.
* * * * *
(202) * * *
(i) * * *
(E) * * *
(2) Rule 233, adopted on October 6, 1994.
* * * * *
(222) * * *
(i) * * *
(C) * * *
(3) Rule 412, adopted on June 1, 1995.
* * * * *
[FR Doc. 96-10566 Filed 4-29-96; 8:45 am]
BILLING CODE 6560-50-W
Complete official Federal Register PDF
FR Doc. 96-10563 Approval and Promulgation of Implementation Plans; California State Implementation Plan Revision, Placer County Air Pollution Control District, El Dorado County Air Pollution Control District, Ventura County Air Pollution Control District, Yolo-Solano Air Quality Management District, and Mojave Desert Air Quality Management District
[Federal Register Volume 61, Number 84 (Tuesday, April 30, 1996)]
[Rules and Regulations]
[Pages 18962-18966]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-10563]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[CA 095-0006a; FRL-5454-9]
Approval and Promulgation of Implementation Plans; California
State Implementation Plan Revision, Placer County Air Pollution Control
District, El Dorado County Air Pollution Control District, Ventura
County Air Pollution Control District, Yolo-Solano Air Quality
Management District, and Mojave Desert Air Quality Management District
AGENCY: Environmental Protection Agency (EPA).
ACTION: Direct final rule.
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SUMMARY: EPA is taking direct final action on revisions to the
California State Implementation Plan (SIP). The revisions concern rules
from the following districts: Placer County Air Pollution Control
District (PLCAPCD), El Dorado County Air Pollution Control District
(EDCAPCD), Ventura County Air Pollution Control District (VTCAPCD),
Yolo-Solano Air Quality Management District (YSAQMD), and Mojave Desert
Air Quality Management District (MDAQMD). This approval action will
incorporate these rules into the federally approved SIP. The intended
effect of approving these rules is to regulate emissions of volatile
organic compounds (VOCs) in accordance with the requirements of the
Clean Air Act, as amended in 1990 (CAA or the Act). The revised rules
control VOC emissions from automotive refinishing, solvent cleaning and
degreasing, wood coating and graphic arts operations. Thus, EPA is
finalizing the approval of these revisions into the California SIP
under provisions of the CAA regarding EPA action on SIP submittal, SIPs
for national primary and secondary ambient air quality standards and
plan requirements for nonattainment areas.
DATES: This action is effective on July 1, 1996, unless adverse or
critical comments are received by May 30, 1996. If the effective date
is delayed, a timely notice will be published in the Federal Register.
ADDRESSES: Copies of the rule revisions and EPA's evaluation report for
each rule are available for public inspection at EPA's Region IX office
during normal business hours. Copies of the submitted
[[Page 18963]]
rule revisions are available for inspection at the following locations:
Rulemaking Section (A-5-3), Air and Toxics Division, U.S.
Environmental Protection Agency, Region IX, 75 Hawthorne Street, San
Francisco, CA 94105
Environmental Protection Agency, Air Docket (6102), 401 ``M''
Street, S.W., Washington, D.C. 20460
California Air Resources Board, Stationary Source Division, Rule
Evaluation Section, 2020 ``L'' Street, Sacramento, CA 95812-2815
Placer County Air Pollution Control District, 11464 B Avenue,
Auburn, CA 95603
El Dorado County Air Pollution Control District, 2850 Fairlane
Court, Placerville, CA 95667
Ventura County Air Pollution Control District, 669 County Square
Drive, Ventura, CA 93003
Yolo Solano Air Quality Management District, 1947 Galileo Court,
Suite 103, Davis, CA 95616
Mojave Desert Air Quality Management District, 15428 Civic Drive,
Suite 200, Victorville, CA 92392-2383
FOR FURTHER INFORMATION CONTACT: Daniel A. Meer, Chief Rulemaking
Section (A-5-3), Air and Toxics Division, U.S. Environmental Protection
Agency, Region 9, 75 Hawthorne Street, San Francisco, CA 94105-3901,
Telephone: (415) 744-1185
SUPPLEMENTARY INFORMATION:
Applicability
The rules being approved into the California SIP include: PLCAPCD's
Rule 216, Organic Solvent Cleaning and Degreasing Operations, and Rule
236, Wood Products Coating Operations; EDCAPCD's Rule 225, Organic
Solvent Cleaning and Degreasing Operations, Rule 230, Motor Vehicle and
Mobile Equipment Coating Operations and Rule 235, Surface Preparation
and Cleanup; VTCAPCD's Rule 74.18 Motor Vehicle and Mobile Equipment
Coating Operations and Rule 74.30, Wood Products Coatings; YSAQMD's
Rule 2.13, Organic Solvents and Rule 2.26, Motor Vehicle and Mobile
Equipment Coating Operations; MDAQMD's Rule 1104, Organic Solvent
Degreasing Operations, Rule 1114, Wood Products Coating Operations and
Rule 1117, Graphic Arts. These rules were submitted by the California
Air Resources Board (CARB) to EPA on July 13, 1994 (Rules 74.30 and
1117), November 30, 1994 (Rules 225, 230, 1104, and 2.13), February 24,
1995 (Rule 74.18 and 2.26), March 31, 1995 (Rule 1114), May 24, 1995
(Rule 236) and October 13, 1995 (Rules 216 and 235).
Background
On March 3, 1978, EPA promulgated a list of ozone nonattainment
areas under the provisions of the Clean Air Act, as amended in 1977
(1977 Act or pre-amended Act), that included Ventura County, part of
the Southeast Desert Air Basin, and the Sacramento Metro area, which
includes portions of Placer, Yolo, and El Dorado County. See 43 FR
8964, 40 CFR 81.305. On May 26, 1988, EPA notified the Governor of
California, pursuant to section 110(a)(2)(H) of the 1977 Act, that the
PLCAPCD, EDCAPCD, VTCAPCD, YSAQMD and the MDAQMD portions of the
California SIP were inadequate to attain and maintain the ozone
standard and requested that deficiencies in the existing SIP be
corrected (EPA's SIP-Call). On November 15, 1990, the Clean Air Act
Amendments of 1990 were enacted. Public Law 101-549, 104 Stat. 2399,
codified at 42 U.S.C. 7401-7671q. In amended section 182 of the CAA,
Congress statutorily adopted the requirements that nonattainment areas
both fix their deficient reasonably available control technology (RACT)
rules for ozone and submit RACT rules for other stationary sources of
VOCs (the RACT fix-up and catch-up requirements). Congress established
a deadline of May 15, 1991 for States to submit corrections to
deficient rules and a deadline of November 15, 1992 for States to
submit rules for other VOC source categories.
Section 182 applies to areas designated as nonattainment prior to
enactment of the amendments and classified as marginal or above as of
the date of enactment. It requires such areas to adopt and correct RACT
rules pursuant to pre-amended section 172 (b) as interpreted in pre-
amendment guidance.1 EPA's SIP-Call used that guidance to indicate
the necessary corrections for specific nonattainment areas. Ventura
County, a portion of the Southeast Desert Air Basin, the Sacramento
Metro area, which includes portions of Placer, Yolo and El Dorado
County are classified as severe;2 therefore, these areas were
subject to the RACT fix-up and catch-up requirements and the deadlines
cited above.3
---------------------------------------------------------------------------
\1\ Among other things, the pre-amendment guidance consists of
those portions of the proposed post-1987 ozone and carbon monoxide
policy that concern RACT, 52 FR 45044 (November 24, 1987); ``Issues
Relating to VOC Regulation Cutpoints, Deficiencies, and Deviations,
Clarification to Appendix D of November 24, 1987 Federal Register
Notice'' (Blue Book) (notice of availability was published in the
Federal Register on May 25, 1988); and the existing control
technique guidelines (CTGs).
\2\ Ventura County and a portion of the Southeast Desert Air
Basin retained their designation of nonattainment and were
classified by operation of law pursuant to sections 107(d) and
181(a) upon the date of enactment of the CAA. See 55 FR 56694
(November 6, 1991). The Sacramento Metro Area was reclassified from
serious to severe on June 1, 1995. See 60 FR 20237 (April 25, 1995)
\3\ California did not make the required SIP submittal for
Mojave Desert AQMD's Rule 1104, Graphic Arts, by November 15, 1992.
On January 15, 1993, the EPA made a finding of failure to make a
submittal pursuant to section 179(a)(1), which started an 18 month
sanction clock. The rule being acted on in this direct final rule
was submitted in response to the EPA finding of failure to submit.
---------------------------------------------------------------------------
The State of California submitted many revised RACT rules for
incorporation into its SIP on July 13, 1994, November 30, 1994,
February 24, 1995, March 31, 1995, May 24, 1995, and October 13, 1995,
including the rules being acted on in this document. This document
addresses EPA's direct-final action for PLCAPCD's Rule 216, Organic
Solvent Cleaning and Degreasing Operations, and 236, Wood Products
Coating Operations; EDCAPCD's Rules 225, Organic Solvent Cleaning and
Degreasing Operations, 230, Motor Vehicle and Mobile Equipment Coating
Operations, and 235, Surface Preparation and Cleanup; VTCAPCD's Rules
74.18 Motor Vehicle and Mobile Equipment Coating Operations, and 74.30,
Wood Products Coatings; YSAQMD's Rules 2.13, Organic Solvents, and
2.26, Motor Vehicle and Mobile Equipment Coating Operations; MDAQMD's
Rules 1104, Organic Solvent Degreasing Operations, 1114, Wood Products
Coating Operations and 1117, Graphic Arts. These submitted rules were
found to be complete on July 22, 1994 (1117), September 12, 1994
(74.30), January 3, 1995 (1104), January 30, 1995 (2.13, 225, and 230),
March 10, 1995 (74.18, 2.26,), May 2, 1995 (1114), July 24, 1995 (236),
and November 28, 1995 (216, 235) pursuant to EPA's completeness
criteria that are set forth in 40 CFR part 51 Appendix V 4 and are
being finalized for approval into the SIP.
---------------------------------------------------------------------------
\4\ EPA adopted the completeness criteria on February 16, 1990
(55 FR 5830) and, pursuant to section 110(k)(1)(A) of the CAA,
revised the criteria on August 26, 1991 (56 FR 42216).
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VTCAPCD's Rule 74.18, EDCAPCD's Rule 230, and YSAQMD's Rule 2.26
control emissions of VOCs from refinishing of motor vehicles and mobile
equipment, YSAQMD's Rule 2.13 controls emissions of VOCs from the usage
of organic solvents, EDCAPCD's Rule 235 controls emissions of VOCs from
surface preparation and cleanup using organic solvents, EDAPCD's Rule
225, PLCAPCD's Rule 216 and MDAQMD's Rule 1104 control emissions of
VOCs from organic solvent degreasing operations, PLCAPCD's Rule 236,
MDAQMD's Rule 1114 and VTCAPCD's Rule 74.30 control emissions of VOCs
from coating of wood products and MDAQMD's Rule 1117
[[Page 18964]]
controls emissions of VOCs from graphic arts operations. VOCs
contribute to the production of ground level ozone and smog. These
rules were originally adopted by the respective districts as part of
their effort to achieve the National Ambient Air Quality Standard
(NAAQS) for ozone and in response to EPA's SIP-Call and the section
182(a)(2)(A) CAA requirement. The following is EPA's evaluation and
final action for these rules.
EPA Evaluation and Action
In determining the approvability of a VOC rule, EPA must evaluate
the rule for consistency with the requirements of the CAA and EPA
regulations, as found in section 110 and part D of the CAA and 40 CFR
part 51 (Requirements for Preparation, Adoption, and Submittal of
Implementation Plans). The EPA interpretation of these requirements,
which forms the basis for today's action, appears in the various EPA
policy guidance documents listed in footnote 1. Among those provisions
is the requirement that a VOC rule must, at a minimum, provide for the
implementation of RACT for stationary sources of VOC emissions. This
requirement was carried forth from the pre-amended Act.
For the purpose of assisting state and local agencies in developing
RACT rules, EPA prepared a series of Control Technique Guideline (CTG)
documents. The CTGs are based on the underlying requirements of the Act
and specify the presumptive norms for what is RACT for specific source
categories. Under the CAA, Congress ratified EPA's use of these
documents, as well as other Agency policy, for requiring States to
``fix-up'' their RACT rules. See section 182(a)(2)(A). The CTG
applicable to EDCAPCD's Rule 225, PLCAPCD's Rule 216 and MDAQMD's Rule
1104 is entitled, Control of Volatile Organic Emissions From Solvent
Metal Cleaning. EPA-450/2-77-022, U.S. Environmental Protection Agency,
Office of Air Quality Planning and Standards, November 1977, and the
CTG applicable to MDAQMD's Rule 1117 is entitled, Control of Volatile
Organic Emissions from Stationary Sources--Volume VIII: Graphic Arts--
Rotogravure and Flexography, U.S. Environmental Protection Agency,
Office of Air Quality And Standards, December 1978, EPA-450/2-78-033.
MDAQMD's Rule 1114 and VTCAPCD's Rule 74.30 limit emissions from a
source category for which EPA has published a draft CTG entitled,
Control Techniques Guideline Document; Wood Furniture Finishing and
Cleaning Operation, see 60 FR 46595, September 7, 1995, which was used
as guidance in the evaluation. VTCAPCD's Rule 74.18, EDCAPCD's Rules
230 and 235, and YSAQMD's Rule 2.26, and 2.13 are applicable to source
categories for which EPA has not published a CTG. Accordingly, these
rules were evaluated against the interpretation of EPA policy found in
the Blue Book, referred to in Footnote 1 and against other EPA policy
including the EPA Region 9/CARB document entitled: Guidance Document
for correcting VOC rule deficiencies, (April 1991). In general, these
guidance documents have been set forth to ensure that VOC rules are
fully enforceable and strengthen or maintain the SIP.
PLCAPCD's submitted Rule 216, Organic Solvent Cleaning and
Degreasing Operations, includes the following significant changes from
the current SIP:
Updated format of rule to be consistent with other
district rules, and to enhance clarity,
Expanded section 200, to include definitions of exempt
compounds, VOCs, leaks, wipe cleaning, stationary source and lip
exhaust,
Regrouped requirements and standards to enhance clarity
and enforceability of the rule,
Revised section 500, to cite test methods that have been
approved by the EPA.
PLCAPCD's submitted Rule 236, Wood Products Coating Operations, is
a new rule containing the following significant provisions:
Limits VOC emissions from coating and surface preparation
of wood products including furniture, cabinets and custom replica
furniture, but exempts application of coatings to wooden musical
instruments, and exempts facilities using less than 20 gallons of
coatings per year,
The rule applies only to facilities located in the
Sacramento Valley Air Basin portion of Placer County.
EDCAPCD'S submitted Rule 225, Organic Solvent Cleaning and
Degreasing Operations, includes the following significant changes from
the current SIP:
Corrected the deficiencies noted in EPA's SIP call of
September 7, 1988 (53 FR 34500)
Incorporates the provisions of the RACT/BARCT
determination developed by the California Air Resources Board (CARB).
EDCAPCD's submitted Rule 230, Automotive Refinishing Operations, is
a new rule containing the following significant provisions:
Limits the VOC contents of numerous coatings and solvents
utilized in the automotive refinishing industry,
Implements the provisions of RACT/BARCT developed by the
California Air Resources Board,
Requires the use of high efficiency transfer equipment for
the application of all coatings, such as High Volume Low Pressure
(HVLP), electrostatic or other coating application methods having a
transfer efficiency of 65% or greater,
Requires add-on abatement equipment when non-compliant
coatings are being used,
Specifies testmethods for analysis of samples,
determination of emissions, transfer efficiency, capture efficiency,
metallic particle content in metallic coatings and acid concentration
in pretreatment wash primer,
Defines recordkeeping requirements.
EDCAPCD's submitted Rule 235, Surface Preparation and Cleanup is a
new rule containing the following significant provisions:
Limits the emissions of VOCs from solvent cleaning
operations in production, repair, maintenance or servicing of parts,
products, tools, machinery, equipment, or general work areas,
Exempts facilities using less than 10 gallons of solvents
in any one calendar year, provided that the daily use does not exceed
one liter,
Defines cleaning devices and methods to be used when
performing solvent cleaning,
Defines recordkeeping requirements and test methods.
VTCAPCD's Rule 74.18, Motor Vehicles and Mobile Equipment Coatings
Operations, includes the following significant changes from the current
SIP:
Sets the standard for pretreatment wash primer at 780
grams of VOC per liter, and limits the use of this coating to 10% of
all undercoats used, averaged over one month,
Deletes the category of precoat,
Changes the implementation date of the primer sealer VOC
standard to January 1, 1997,
Changes the implementation date of the multistage topcoat
VOC limit to January 1, 1996,
Limits the use of specialty coatings to no more than 5% of
total coating usage.
VTCAPCD's Rule 74.30, Wood Products Coatings, is a new rule
containing the following significant provisions:
Limits the VOC content of coatings applied to wood
products,
Establishes two categories of wood coating operations: new
wood products and refinishing wood products,
[[Page 18965]]
Allows add-on control equipment as an alternative to using
low VOC coatings,
Requires operators of wood coating facilities to use
coating application methods yielding at least 65% transfer efficiency,
Defines the test methods to be used and specifies
recordkeeping provisions.
YSAQMD's Rule 2.13, Organic Solvents, includes the following
changes from the current SIP:
Reformatting of the entire rule,
Added section 101, Purpose
Added section 102, Applicability
Deleted the sections concerning asphalt paving and graphic
arts. These sources are now covered in Rule 2.28 and 2.29 respectively,
Added section 502, test methods.
YSAQMD's Rule 2.26, Motor Vehicle and Mobile Equipment Coating
Operations, is a new rule containing the following significant
provisions:
Limits the VOC content of coatings applied to group I and
group II vehicles,
Specifies the application method to be used to achieve a
transfer efficiency of 65% or greater,
Limits the VOC contents of surface preparation and clean-
up solvents,
Limits use of specialty coatings to no more than 5% of all
coatings applied, on a monthly basis,
Limits use of precoat to no more than 25%, by volume, of
the amount of primer surfacer used,
Includes a prohibition of specification and sale clause,
Defines test methods to be used and specifies records to
be kept.
MDAQMD's Rule 1104, Organic Solvent Degreasing Operations, is a new
rule containing the following significant provisions:
Limits emissions of VOCs from wipe cleaning and degreasing
operations using organic solvents,
Applies to any facility engaged in wipe cleaning, cold
solvent cleaning (degreasing) operations for metal/non metal parts/
products or electronic circuit boards, which utilize organic solvents,
Defines equipment requirements for remote reservoir
cleaners, cold solvent degreasers, conveyorized cold solvent
degreasers, batch loaded vapor degreasers, and conveyorized vapor
degreasers,
Defines operating requirements for all degreasers in
general, and batch loaded, conveyorized degreasers, and remote
reservoir degreasers specifically,
Provides recordkeeping requirements and specifies test
methods.
MDAQMD's Rule 1114, Wood Products Coating Operations, is a new rule
containing the following significant provisions:
Limits emissions of VOCs from the coating operations of
wood products,
Provides limits of VOC content for topcoats, fillers
stains, inks, mold-seal, multi-colored and pigmented coatings, sealers,
strippers and adhesives.
Defines application methods to be used when applying
coatings to achieve a transfer efficiency of 65% or more,
Defines the VOC limits of clean-up and equipment cleaning
solvents,
Allows the use of add-on control devices to comply with
the rule,
Exempts facilities using less than one gallon of coating
material in any one day, or have maximum actual emissions of 3 lbs of
VOCs per day and not more than 200 lbs of VOCs per calendar year,
Specifies test methods to be used and records to be kept.
MDAQMD's Rule 1117, Graphic Arts, is a new rule containing the
following significant provisions:
Applies to rotogravure and flexographic printing sources,
but exempts facilities that emit less than 2500 pounds of VOC per
month,
Requires sources to maintain daily records of coatings,
inks, and adhesives used by the facility. If an emission control system
is used, the facility must continuously monitor its operating
parameters,
Limits VOC content of inks, coatings, and adhesives to 300
grams per liter of coating as applied,
Defines capture and control efficiency requirements of 75%
by weight for publication rotogravure, of 65% by weight for packaging
rotogravure, and of 60% by weight for flexographic printing,
Defines test methods to be used and records to be kept.
EPA has evaluated the submitted rules and has determined that they
are consistent with the CAA, EPA regulations, and EPA policy.
Therefore, PLCAPCD's Rules 216, Organic Solvent Cleaning and Degreasing
Operations, and 236, Wood Products Coating Operations, EDCAPCD's Rules
225, Organic Solvent Cleaning and Degreasing Operations, 230, Motor
Vehicle and Mobile Equipment Coating Operations, and 235, Surface
Preparation and Cleanup, VTCAPCD's Rules 74.18, Motor Vehicle and
Mobile Equipment Coating Operations, and 74.30, Wood Products Coating,
YSAQMD's Rules 2.13, Organic Solvents, and 2.26, Motor Vehicles and
Mobile Equipment Coating Operations, and MDAQMD's Rules 1104, Organic
Solvent Degreasing Operations, 1114, Wood Products Coating, and 1114,
Graphic Arts, are being approved under section 110(k)(3) of the CAA as
meeting the requirements of section 110(a) and part D.
Nothing in this action should be construed as permitting or
allowing or establishing a precedent for any future implementation
plan. Each request for revision to the state implementation plan shall
be considered separately in light of specific technical, economic, and
environmental factors and in relation to relevant statutory and
regulatory requirements.
EPA is publishing this document without prior proposal because the
Agency views this as a noncontroversial amendment and anticipates no
adverse comments. However, in a separate document in this Federal
Register publication, the EPA is proposing to approve the SIP revision
should adverse or critical comments be filed. This action will be
effective July 1, 1996, unless, by May 30, 1996, adverse or critical
comments are received.
If the EPA receives such comments, this action will be withdrawn
before the effective date by publishing a subsequent document that will
withdraw the final action. All public comments received will then be
addressed in a subsequent final rule based on this action serving as a
proposed rule. The EPA will not institute a second comment period on
this action. Any parties interested in commenting on this action should
do so at this time. If no such comments are received, the public is
advised that this action will be effective July 1, 1996.
Regulatory Process
Under the Regulatory Flexibility Act, 5 U.S.C. 600 et seq., EPA
must prepare a regulatory flexibility analysis assessing the impact of
any proposed or final rule on small entities. 5 U.S.C. 603 and 604.
Alternatively, EPA may certify that the rule will not have a
significant impact on a substantial number of small entities. Small
entities include small businesses, small not-for-profit enterprises and
government entities with jurisdiction over population of less than
50,000.
SIP approvals under sections 110 and 301(a) and subchapter I, Part
D of the CAA do not create any new requirements, but simply approve
requirements that the State is already imposing. Therefore, because the
Federal SIP-approval does not impose any new requirements, I certify
that it does not have a significant impact on any small entities
affected. Moreover, due to the nature of the Federal-state relationship
under the CAA, preparation of a regulatory flexibility analysis would
[[Page 18966]]
constitute Federal inquiry into the economic reasonableness of state
action. The CAA forbids EPA to base its actions concerning SIPs on such
grounds. Union Electric Co. v. U.S. E.P.A., 427 U.S. 246, 256-66 (S.
Ct. 1976); 42 U.S.C. 7410 (a)(2).
Unfunded Mandates
Under Sections 202, 203, and 205 of the Unfunded Mandates Reform
Act of 1995 (``Unfunded Mandates Act''), signed into law on March 22,
1995, EPA must undertake various actions in association with proposed
or final rules that include a Federal mandate that may result in
estimated costs of $100 million or more to the private sector or to
State, local, or tribal governments in the aggregate.
Through submission of this state implementation plan or plan
revision, the State and any affected local or tribal governments have
elected to adopt the program provided for under Part D of the Clean Air
Act. These rules may bind State, local, and tribal governments to
perform certain actions and also require the private sector to perform
certain duties. The rules being [proposed for approval/approved] by
this action will impose no new requirements because affected sources
are already subject to these regulations under State law. Therefore, no
additional costs to State, local, or tribal governments or to the
private sector result from this action. EPA has also determined that
this [proposed or final] action does not include a mandate that may
result in estimated costs of $100 million or more to State, local, or
tribal governments in the aggregate or to the private sector.
This action has been classified as a Table 3 action for signature
by the Regional Administrator under the procedures published in the
Federal Register on January 19, 1989 (54 FR 2214-2225), as revised by a
July 10, 1995 memorandum from Mary Nichols, Assistant Administrator for
Air and Radiation. The Office of Management and Budget (OMB) has
exempted this regulatory action from Executive Order 12866 review.
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Hydrocarbons,
Incorporation by reference, Intergovernmental relations, Ozone,
Reporting and recordkeeping requirements, Volatile organic compounds.
Note: Incorporation by reference of the State Implementation
Plan for the State of California was approved by the Director of the
Federal Register on July 1, 1982.
Dated: March 26, 1996.
Felicia Marcus,
Regional Administrator.
Subpart F of part 52, chapter I, title 40 of the Code of Federal
Regulations is amended as follows:
PART 52--[AMENDED]
1. The authority citation for part 52 continues to read as follows:
Authority: 42 U.S.C. 7401-7671q.
Subpart F--California
2. Section 52.220 is amended by adding paragraphs (c)(198)(i)(E)(2)
and (i)(J)(2), (207)(i)(B)(4), (i)(C)(4) and (i)(D)(2),(215)(i)(B)(3)
and (i)(D)(1), (216)(i)(A)(4), (220)(i)(B)(2) and (225)(i)(B)(5) and
(i)(C)(2) to read as follows:
Sec. 52.220 Identification of plan.
* * * * *
(c) * * *
(198) * * *
(i) * * *
(E) * * *
(2) Rule 1117 adopted June 22, 1994.
* * * * *
(J) * * *
(2) Rule 74.30 adopted May 17, 1994.
* * * * *
(207) * * *
(i) * * *
(B) * * *
(4) Rules 225 and 230 adopted September 27, 1994.
(C) * * *
(4) Rule 2.13 adopted May 25, 1994.
(D) * * *
(2) Rule 1104 adopted September 28, 1994.
* * * * *
(215) * * *
(i) * * *
(B) * * *
(3) Rule 74.18 adopted December 13, 1994.
* * * * *
(D) * * *
(1) Rule 2.26 adopted November 9, 1994.
* * * * *
(216) * * *
(i) * * *
(A) * * *
(4) Rule 1114 adopted February 22, 1995.
* * * * *
(220) * * *
(i) * * *
(B) * * *
(2) Rule 236 adopted on February 9, 1995.
* * * * *
(225) * * *
(i) * * *
(B) * * *
(5) Rule 216 adopted on June 8, 1995.
(C) * * *
(2) Rule 235 adopted on June 27, 1995.
* * * * *
[FR Doc. 96-10563 Filed 4-29-96; 8:45 am]
BILLING CODE 6560-50-W
Complete official Federal Register PDF
FR Doc. 96-10559 Safety Zone Regulations; Fort Vancouver Fourth of July Fireworks Display, Columbia River, Vancouver, WA
[Federal Register Volume 61, Number 84 (Tuesday, April 30, 1996)]
[Rules and Regulations]
[Pages 18948-18949]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-10559]
-----------------------------------------------------------------------
DEPARTMENT OF TRANSPORTATION
33 CFR Part 165
[CGD13-95-055]
RIN 2115-AA97
Safety Zone Regulations; Fort Vancouver Fourth of July Fireworks
Display, Columbia River, Vancouver, WA
AGENCY: Coast Guard, DOT.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Coast Guard is adopting permanent safety zone regulations
for the annual Fort Vancouver Fourth of July Fireworks Display in
Vancouver, Washington. This event is held each year on the Fourth of
July on the waters of the Columbia River. In the past, the Coast Guard
has established a temporary safety zone each year to protect the safety
of life on the navigable waters during this event. However, because the
event occurs annually, the Coast Guard is adopting a permanent
description of the event and permanent regulations to better inform the
boating public.
EFFECTIVE DATE: This rule is effective on May 30, 1996.
ADDRESSES: Unless otherwise indicated, the documents referred to in
this preamble are available for inspection or copying in the St. Helens
Building, Waterways Management Section at the U.S. Coast Guard Group
Portland, 6767 N. Basin Ave., Portland, OR 97217-3992. Normal office
hours are between 7 a.m. and 4 p.m., Monday through Friday, except
Federal holidays.
FOR FURTHER INFORMATION CONTACT:
Lieutenant (Junior Grade) C. A. Roskam, c/o Commander, U.S. Coast Guard
Group Portland, 6767 N. Basin Ave., Portland, OR 97217-3992.
(Telephone: (503) 240-9327).
SUPPLEMENTARY INFORMATION:
Regulatory History
On February 9, 1996 the Coast Guard published a notice of proposed
rulemaking entitled Safety Zone Regulations; Fort Vancouver Fourth of
July Fireworks Display, Columbia River, Vancouver, WA, in the Federal
Register (61 FR 4945). The Coast Guard received no letters commenting
on the proposal. No public hearing was requested, and none was held. No
changes were made to the regulation, and it is being adopted as
initially proposed.
Background and Purpose
The Coast Guard is adopting permanent safety zone regulations for
the annual Fort Vancouver Fourth of July Fireworks Display in
Vancouver, Washington. This event is held on the waters of Columbia
River each year on July fourth from 10 p.m. to 10:30 p.m. (PDT). In the
past, the Coast Guard has established a temporary safety zone each year
to protect the safety of life on the navigable waters during the event.
However, because the event occurs annually, the Coast Guard is adopting
a permanent description of the event and permanent regulations in the
Code of Federal Regulations (CFR) to better inform the boating public.
The Coast Guard, through this action, intends to promote the safety of
spectators and participants in this event. The Fort Vancouver Fourth of
July Fireworks Display is being held as part of the celebration for the
Fourth of July Independence Day in Vancouver, Washington. This event is
sponsored by the Fort Vancouver Fourth of July Committee. The fireworks
display is conducted from a barge located just offshore on the Columbia
River.
This one day event attracts a large number of spectators gathered
on the waters near the fireworks display. Spectators who approach the
fireworks barge at close range during the event may be struck by
falling debris from the overhead fireworks display.
Discussion of Proposed Regulation
To promote the safety of both the spectators and the participants
of this event, this regulation establishes a permanent safety zone
which would become effective each year during the event. Entry into
this safety zone and the area surrounding the event will be prohibited.
This safety zone will be enforced by representatives of the Captain of
the Port, Portland, Oregon. The Captain of the Port may be assisted by
other federal agencies.
Regulatory Evaluation
This regulation is not a significant action under section 3(f) of
Executive Order 12866 and does not require an assessment of potential
costs and benefits under section 6(a)(3) of that order. It has been
exempted from review by the Office of Management and Budget under that
order. It is not significant under the regulatory policies and
procedures of the Department of Transportation (DOT) (44 FR 11040;
February 26, 1979).
The Coast Guard expects the economic impact of this regulation to
be so minimal that a full regulatory evaluation under paragraph 10e of
the regulatory policies and procedures of DOT is unnecessary. The
safety zone established by this regulation encompasses only one mile of
the Columbia River adjacent to Vancouver, Washington. Entry into the
safety zone will be restricted each year for only three hours on the
day of the event. These restrictions would have little effect on
maritime commerce in the area.
Small Entities
Under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.), the
Coast Guard must consider whether this regulation will have a
significant economic impact on a substantial number of small entities.
``Small entities'' may include (1) small businesses and not-for-profit
organizations that are independently owned and operated and are not
dominant in their fields and (2) governmental jurisdictions with
populations of less than 50,000. Because it expects the impact of this
regulation to be minimal, the Coast Guard certifies under 5 U.S.C.
605(b) that this regulation will not have a significant economic impact
on a substantial number of small entities.
Collection of Information
This regulation contains no collection of information requirements
under the Paperwork Reduction Act (44 U.S.C. 3501 et seq.).
Federalism
The Coast Guard has analyzed this action in accordance with the
principles and criteria contained in Executive Order 12612 and has
determined that this regulation does not have sufficient federalism
implications to warrant the preparation of a Federalism Assessment.
Environment
The Coast Guard considered the environmental impact of this
regulation and concluded that, under paragraph 2.B.2 of Commandant
Instruction
[[Page 18949]]
M16475.1B (as revised by 59 FR 38654; July 29, 1994), the regulation is
categorically excluded from further environmental documentation.
Appropriate environmental analysis of the Fort Vancouver Fourth of July
Fireworks Display will be conducted in conjunction with the marine
event permitting process each year. Any environmental documentation
required under the National Environmental Policy Act will be completed
prior to the issuance of a marine event permit for this event should
such a permit be required.
List of Subjects in 33 CFR Part 165
Harbors, Marine safety, Navigation (water), Reports and
recordkeeping requirements, Security measures, Waterways.
Final Regulation
For the reasons set out in the preamble, the Coast Guard amends
Part 165 of Title 33, Code of Federal Regulations, as follows:
PART 165--[AMENDED]
1. The authority citation for Part 165 continues to read as
follows:
Authority: 33 U.S.C. 1231; 50 U.S.C. 191; CFR 1.05-1(g), 6.04-1,
6.04-6 and 160.5; 49 CFR 1.46.
2. A new section 165.1308 is added to read as follows:
Sec. 165.1308 Columbia River, Vancouver, WA.
(a) Location. The following area is a safety zone: All waters of
the Columbia River at Vancouver, Washington, bounded by a line
commencing at the northern base of the Interstate 5 highway bridge at
latitude 45 deg.37'17'' N, longitude 122 deg.40'22'' W; thence south
along the Interstate 5 highway bridge to latitude 45 deg.37'03'' N,
longitude 122 deg.40'32'' W; thence to latitude 45 deg.36'28'' N,
longitude 122 deg.38'35'' W; thence to Ryan's Point at latitude
45 deg.36'42'' N, longitude 122 deg.38'35'' W; thence along the
Washington shoreline to the point of origin. [Datum: NAD 83].
(b) Effective dates. This section is effective annually on July
fourth from 9 p.m. to 11 p.m. (PDT) unless otherwise specified by
Federal Register notice.
(c) Regulation. In accordance with the general regulations in
Sec. 165.23 of this part, entry into this safety zone is prohibited
unless authorized by the Captain of the Port, Portland, Oregon.
Dated: April 18, 1996.
C.E. Bills,
Captain, U.S. Coast Guard Captain of the Port.
[FR Doc. 96-10559 Filed 4-29-96; 8:45 am]
BILLING CODE 4910-14-M
Complete official Federal Register PDF
FR Doc. 96-10557 Special Anchorage Areas; Herb River, Thunderbolt, GA; Bull River, Savannah, GA; South Channel Savannah River East, Savannah, GA; South Channel Savannah River West, Savannah, GA; Calibogue Sound, Hilton Head, SC; May River, Hilton Head, SC
[Federal Register Volume 61, Number 84 (Tuesday, April 30, 1996)]
[Rules and Regulations]
[Pages 18944-18946]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-10557]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF TRANSPORTATION
Coast Guard
33 CFR Part 110
[CGD07-95-033]
RIN 2115-AA98
Special Anchorage Areas; Herb River, Thunderbolt, GA; Bull River,
Savannah, GA; South Channel Savannah River East, Savannah, GA; South
Channel Savannah River West, Savannah, GA; Calibogue Sound, Hilton
Head, SC; May River, Hilton Head, SC
AGENCY: Coast Guard, DOT.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Coast Guard is establishing six temporary special
anchorage areas during the 1996 Centennial Olympic Games. These special
anchorage areas become effective on July 4, 1996, at 7 a.m. EDT
(Eastern Daylight Time), and terminate on August 5, 1996, at 11 p.m.
EDT. The Coast Guard expects a significant number of spectator vessels
to participate in the festivities surrounding the 1996 Olympic Games.
By designating special anchorage areas the Coast Guard expects to
minimize the problems associated with a large congestion of boaters in
the area.
EFFECTIVE DATES: This rule is effective at 7 a.m. EDT, on July 4, 1996,
and terminates at 11 p.m. EDT, on August 5, 1996.
ADDRESSES: Copies of documents referenced in this document are
available for inspection or copying from Marine Safety Office,
Savannah, 222 W. Ogelthorpe Avenue, Suite 402, Savannah, Georgia
between 9 a.m. and 3 p.m. EDT, Monday through Friday, except Federal
holidays. A copy of the environmental assessment is available from CEU
Miami, 909 S.E. 1st Ave., Miami, Florida 33131.
FOR FURTHER INFORMATION CONTACT:
LT J. Simmerman, project officer for the Captain of the Port, or BMC P.
Webber, Marine Safety Office Savannah at Tel: (912) 652-4353, between
the hours of 7:30 a.m. and 4 p.m. EDT, Monday through Friday, except
holidays.
SUPPLEMENTARY INFORMATION:
Regulatory History
On October 13, 1995, the Coast Guard published a Notice of Proposed
Rulemaking (NPRM) in the Federal Register (60 FR 53317) entitled
``Special Anchorage Areas; Herb River, Thunderbolt, GA; Bull River,
Savannah, GA; South Channel Savannah River East, Savannah, GA; South
Channel Savannah River West, Savannah, GA; Calibogue Sound, Hilton
Head, SC; May River, Hilton Head, SC'' (CGD07-95-033). Three comments
were received in response to the NPRM.
Discussion of Comments and Changes
All of the comments received addressed the proposed May River
special anchorage area, proposed Sec. 110.T72e(f). These comments
addressed concerns that establishment of the May River anchorage as
proposed would not allow for safe navigation of recreational and
commercial vessels by residents who live along the May River west of
the proposed anchorage area. Based on these comments, proposed
Sec. 110.T72e(f) has been modified in this final rule to decrease the
anchorage area, restricting the anchorage area to the southern half of
the May River. This change in area will allow for safe passage of
commercial and recreational vessels in the northern side of the
channel. The description of the May River anchorage area now appears in
Sec. 110.72e(a)(6). Additionally, an
[[Page 18945]]
effective date paragraph has been added to the section to make it clear
that these special anchorage areas will only be in effect from July 4,
1996 until August 5, 1996.
Discussion of Regulations
Approximately 1,000 to 2,000 spectator vessels are expected to
arrive and participate in the festivities of the 1996 Olympic sailing
competition. The Coast Guard is establishing six special anchorage
areas to alleviate the problems of a large congestion of recreational
boats in a small area. By designating these special anchorages, the
Coast Guard anticipates minimizing the associated problems with
security and pollution, as well as the commercial congestion that a
large influx of boaters might cause in the area. Vessels no more than
sixty-five feet in length when anchored at any special anchorage area
are not required to carry or exhibit the white anchor lights normally
required by the Navigation Rules. These special anchorage regulations
will be effective from July 4, 1996, at 7 a.m. EDT, until August 5,
1996, 11 p.m. edt.
Six special anchorage areas are being established in the following
locations: (1) Herb River; from the mouth of the Herb River to just
before Country Club Creek. (2) Bull River; south from the Bull River
Bridge to the mouth of Lazaretto Creek. (3) The South Channel of the
Savannah River west; extending from Elba Island Cut southeast to the
Fort Pulaski Bridge. (4) The South Channel of the Savannah River east;
extending from Fort Pulaski Bridge east to the entrance of Lazaretto
Creek. (5) Calibogue Sound; south of the entrance of Harbourtown to
Braddock Point. (6) May River; west of buoy 4 in the vicinity of Bass
Creek to buoy 5 prior to the mouth of Bull Creek.
Regulatory Evaluation
This rule is not a significant regulatory action under section 3(f)
of Executive Order 12866 and does not require an assessment of
potential costs and benefits under section 6(a)(3) of that order. It
has been exempted from review by the Office of Management and Budget
under that order. It is not significant under the regulatory policies
and procedures of the Department of Transportation (DOT) (44 FR 11040;
February 26, 1979). The Coast Guard expects the economic impact of this
rule to be so minimal that a full Regulatory Evaluation under paragraph
10e of the regulatory policies and procedures of DOT is unnecessary.
Small Entities
Under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.), the
Coast Guard considered whether this rule will have a significant effect
on a substantial number of small entities. ``Small entities'' may
include (1) small businesses and not for profit organizations that are
independently owned and operated and are not dominant in their fields
and (2) governmental jurisdictions with populations of less than
50,000.
Over 1100 athletes and coaches representing over 80 countries, over
300 competition vessesls, as well as approximately 1,000 to 2,000
support and spectator vessels are expected to arrive and participate in
the festivities of the 1996 Olympic yatching competition. The special
anchorage areas described in this rule will be established for a
limited time period to help accommodate this large volume of spectator
vessels in the port of Savannah. The boundaries of the anchorage areas
have been tailored to reduce congestion while still allowing for safe
navigation of the waterways by commercial and recreational vessels.
For the reasons discussed above, the Coast Guard certifies under
section 605(b) of the Regulatory Flexibility Act (5 U.S.C. et seq.)
that this rule will not have a significant economic impact on a
substantial number of small entities.
Collection of Information
This rule contains no collection-of-information requirements under
the Paperwork Reduction Act (44 U.S.C. 3501 et seq.).
Federalism
This action has been analyzed in accordance with the principles and
criteria contained in Executive Order 12612, and it has been determined
that the rulemaking does not have sufficient federalism implications to
warrant the preparation of a Federalism Assessment.
Environmental Assessment
The Coast Guard has considered the environmental impact of this
action and has determined pursuant to Section 2.B.2. of Commandant
Instruction M16475.1B, that this action is categorically excluded from
further environmental documentation.
A Categorical Exclusion Determination and Categorical Exclusion
Checklist are available in the docket for inspection or copying at the
location listed in ADDRESSES. In addition the environmental analysis
above, an Environmental Assessment (EA) and Finding of No Significant
Impact (FONSI) has been issued for the area during the 1996 Olympic
Yachting Competition. A copy of the EA and FONSI is available for
copying and inspection at the location listed in ADDRESSES.
List of Subjects in 33 CFR Part 110
Anchorage grounds.
Final Regulations
In consideration of the foregoing, Part 110 of Title 33, Code of
Federal Regulations, is amended as follows:
PART 110--[AMENDED]
1. The authority citation for Part 110 continues to read as
follows:
Authority: 33 U.S.C. 471, 2030, 2035, and 2071; 49 CFR 1.46 and
33 CFR 1.05-1(g). Section 110.1a and each section listed in 110.1a
are also issued under 33 U.S.C. 1223 and 1231.
2. A new temporary Sec. 110.72e is added to read as follows:
Sec. 110.72e Savannah Olympic Anchorage Areas, GA.
(a) Anchorage Areas. The following locations are special anchorage
areas (All coordinates referenced used Datum: NAD 1983):
(1) Herb River Anchorage. The waters in Herb River within the area
bounded at latitude 32 deg.01'.2'' N, extending south to a line at
latitude 32 deg.00'.0'' N.
(2) Bull River Anchorage. The waters of Bull River within the area
bounded at latitude 32 deg.02'.2'' N, east to a line at latitude
31 deg.59'.7'' N across Bull River.
(3) South Channel of the Savannah River West Anchorage. The waters
of the South Channel of the Savannah River lying between latitude
32 deg.04'.1'' N, extending east to a line of longitude 080 deg.54'.9''
W in the vicinity of the Fort Pulaski Bridge.
(4) South Channel of the Savannah River East Anchorage. The waters
of the South Channel of the Savannah River lying east of the Fort
Pulaski Bridge, beginning at longitude 080 deg.54'.9'' W, extending
east to longitude 080 deg.53'.9'' W across South Channel.
(5) Calibogue Sound Anchorage. The waters of Calibogue Sound lying
within the following coordinates, the area west of the west shore of
Hilton Head Island; starting at
32 deg.08'12.0'' N, 080 deg.48'55.0'' W; thence to,
32 deg.08'12.0'' N, 080 deg.49'13.0'' W; thence to,
32 deg.06'50.0'' N, 080 deg.49'55.0'' W; thence to,
32 deg.06'50.0'' N, 080 deg.49'43.0'' W; back north on the west shore
of Hilton Head Island to the point of beginning.
(6) May River Anchorage. The waters of May River within the
following
[[Page 18946]]
coordinates, the area north of the north shore of Bull Island;
beginning at
32 deg.11'45.0'' N, 080 deg.48'03.0'' W; thence to,
32 deg.11'52.0'' N, 080 deg.48'02.0'' W; thence to,
32 deg.12'00.0'' N, 080 deg.48'17.0'' W; thence to,
32 deg.12'19.0'' N, 080 deg.49'35.0'' W; thence to,
32 deg.12'09.0'' N, 080 deg.49'43.0'' W; back east along the north
shore of Bull Island to the point of beginning.
(b) Effective dates. This section is effective on July 4, 1996, at
7 a.m. EDT, and terminates on August 5, 1996, at 11 p.m. EDT.
Dated: April 23, 1996.
Roger T. Rufe, Jr.,
Rear Admiral, U.S. Coast Guard Commander, Seventh Coast Guard District.
[FR Doc. 96-10557 Filed 4-29-96; 8:45 am]
BILLING CODE 4910-14-M
Complete official Federal Register PDF
FR Doc. 96-10556 Safety/Security Zone Regulations; Savannah, GA
[Federal Register Volume 61, Number 84 (Tuesday, April 30, 1996)]
[Rules and Regulations]
[Pages 18949-18958]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-10556]
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DEPARTMENT OF TRANSPORTATION
33 CFR Part 165
[CGD07-95-062]
RIN 2115-AA97
Safety/Security Zone Regulations; Savannah, GA
AGENCY: Coast Guard, DOT.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Coast Guard is establishing safety and security zones to
protect life, property, and the environment during the 1996 Olympic
Yachting Competition. The anticipated concentration of spectator and
participant vessels associated with these races pose safety and
security concerns. These regulations are intended to provide security
for the Olympic participants and to insure safe navigation on the
waters surrounding the Olympic Village located on the Savannah River,
the two Olympic Marinas, the racing venues offshore, and the ferrying
of athletes and officials between Olympic Marina locations.
EFFECTIVE DATES: This rule is effective from July 4, 1996 until August
4, 1996.
ADDRESSES: Copies of documents referenced in this document are
available for inspection or copying from Marine Safety Office,
Savannah, 222 W. Ogelthorpe Avenue, Suite 402, Savannah, Georgia
between 9 a.m. and 3 p.m. EDT (Eastern Daylight Time), Monday through
Friday, except Federal holidays. A copy of the environmental assessment
is available from CEU Miami, 909 S.E. 1st Ave., Miami, Florida 33131.
FOR FURTHER INFORMATION CONTACT:
BMC P.M. Webber or LT L.L. Fagan, Project Officer for Captain of the
Port, Marine Safety Officer, Savannah at (912) 652-4353, between the
hours of 7:30 a.m. and 4 p.m. EDT, Monday through Friday, except
holidays.
SUPPLEMENTARY INFORMATION: Over 1100 athletes and coaches representing
over 80 countries, over 300 competition vessels, as well as
approximately 1,000 to 2,000 support and spectator vessels are expected
to arrive and participate in the festivities of the 1996 Olympic
yachting competition. To ensure the security of the athletes and to
ensure the safety of the large volume of recreational vessels expected
in the area, the Coast Guard is establishing these safety/security
zones to provide for the safety and security of the Olympic
participants and spectators.
Regulatory History
On January 3, 1996, the Coast Guard published a Notice of Proposed
Rulemaking (NPRM) entitled ``Safety/Security Zone Regulations;
Savannah, GA'' (CGD 07-95-062) in the Federal Register (61 FR 136). Due
to requests, a public meeting, announced in the February 16, 1996
Federal Register (61 FR 6178), was held in Savannah by the Captain of
the Port Savannah on February 29, 1996 to gather comments on the
rulemaking. The meeting was attended by over 100 individuals. Twenty-
six people made comments during the meeting and 17 written comments
were submitted prior to closure of the comment period on March 4, 1996.
Copies of the comments and an audio tape of the meeting are available
for inspection or copying where indicated under ADDRESSES. The Coast
Guard published a related Notice of Proposed Rulemaking on October 10,
1995 (60 FR 53317), which proposed anchorage areas in the same general
area as the safety/security zones during the Olympic Yachting Event.
The final rule on the anchorage areas is published elsewhere in today's
Federal Register.
Discussion of Comments and Changes
The Coast Guard received forty-three separate comments on the NPRM
during the comment period. The commentors fit into the following
general categories: concerns from businesses on Bull River, Turner
Creek, or Half Moon River; concerns from citizens living on these
waterways or with vessels moored in effected areas; and concerns
registered by or on behalf of the Atlanta Committee for the Olympic
Games (ACOG). The Coast Guard received two comments from private
citizens who fully supported the safety/security zones as proposed,
stating that the Coast Guard had achieved a good balance between
navigational interests and interest in security for the Olympic
athletes. The comments which addressed specific proposed safety/
security zones are discussed below by zone. General comments which
pertain to all of the area are grouped by subject and are discussed
following the discussion by specific zones.
The environmentally based constraints that were proposed as part of
the NPRM have been incorporated as conditions in the permit issued by
the Coast Guard to the ACOG for the water events. As a result,
therefore, these restrictions have been eliminated from
[[Page 18950]]
the final rule. The Coast Guard has completed an Environmental
Assessment, with a finding of no significant impact, for all Olympic
activities in the area as discussed in the ``Environmental Assessment''
section below.
Savannah River; Olympic Torch Moving Safety Zone (Proposed Section
165.T07-077)
No Comments specifically addressed the Olympic Torch proposed
moving safety zone. The effective date of the moving safety zone has
been changed from July 10 to July 9, 1996. The duration of the
effective time of the zone has been reduced from the NPRM, which had
proposed an effective zone that lasted from 8 a.m. to 10 p.m. EDT. The
moving safety zone will instead be effective from 6 p.m. to 10 p.m.
EDT. The exact route of the torch is uncertain at this time. The zone
will commence either, on the Savannah River in the vicinity of Coast
Guard Station Tybee and continue west up river to the Highway 17A
bridge (Talmadge bridge), or at the mouth of the Wilmington River and
proceed to the Savannah River via the Intracoastal Waterway (ICW) and
thence to the Highway 17A bridge. The Captain of the Port Savannah will
announce the exact route for the vessel and its moving safety zone via
Broadcast Notice to Mariners prior to the establishment of the zone.
Savannah River: Fireworks Safety Zone (Proposed Section 165.T07-078)
No comments were received on the proposed safety zone for the
fireworks display. The effective time of the zone on July 4, 1996 has
been moved up from the proposed starting time of 10 p.m. to 9:15 p.m.
EDT. The zone will still terminate at 11 p.m. EDT.
Marriot Hotel/Olympic Village (Proposed Section 165.T07-062(1))
No comments specifically addressed the Olympic Village proposed
zone and therefore it is being adopted in this final rule as proposed
with a minor change in coordinates required to accurately delineate the
zone.
Olympic Marina; Wilmington River and Turner Creek (Proposed Section
165.T07-062(2))
The NPRM proposed a zone that included a portion of Turner Creek
and extended out to the center of the Wilmington River, surrounding the
Olympic Marina and its docks. Olympic athletes will board vessels at
the Olympic Marina and be shuttled to the Day Marina in Wassaw Sound.
The Day Marina is the staging area for all the yachting events and is
the area where the vessels used in competition will be moored. As
proposed, entry into the Olympic Marina zone, including portions of
Turner Creek and the Wilmington River, would be prohibited unless
permission was granted by the Captain of the Port. The Coast Guard had
planned to grant permission for entry to groups of vessels and provide
Coast Guard escorts for their transit through the zone, thereby
allowing controlled access to the Wilmington River through Turner
Creek.
The Olympic Marina zone, as proposed, extended south of the Olympic
Marina in the Wilmington River to encompass a number of private docks.
To address the access problem this would have caused for the dock
owners, the Coast Guard has modified the boundaries of the Olympic
Marina zone so that the zone ends just north of the first private dock,
thereby allowing free access from these docks to the Wilmington River.
The Coast Guard received a number of comments concerning the
anticipated effects of closing Turner Creek and parts of the Wilmington
River and concerning the expected delays which would result from the
plan to escort groups of vessels through the area. Commentors included
two private individuals who live in homes with private docks on the
Wilmington River that were encompassed within the proposed Olympic
Marina zone and business owners along Turner Creek who were concerned
with the impact the delays and lack of access would have on their
business.
In their comments, several business owners along Turner Creek
expressed concerns with the Coast Guard's proposed plan to escort
vessels in groups through Turner Creek to the Wilmington River. The
commentors noted that this area experiences a heavy volume of vessel
traffic and large delays were anticipated as a result of the
restrictions. Based on these comments, and after consultation with the
ACOG about the security concerns, the Coast Guard has decided not to
escort vessels in groups through this zone. Instead, if vessels desire
to transit through the Olympic Marina zone, a vessel may check in with
the Coast Guard to receive permission to enter. The Captain of the Port
(COTP) may grant permission for vessels to enter the Olympic Marina
zone whenever circumstances allow. COTP permission will be granted with
the condition that the vessels transit the zone without stopping within
the zone.
Two comments at the public meeting and one written comment
concerned the designation of this area as a ``no wake zone.'' The
declaration of an area as a ``no wake zone'' is done by the State of
Georgia and not the Coast Guard. Therefore, those comments have been
passed to the responsible state officials for their consideration.
Wilmington River and Wassaw Sound (Moving Security Zone) (Proposed
Section 165.T07-062(3))
No comments specifically addressed this proposed zone. The
description of this zone has been modified to clarify the route that
the vessels ferrying the athletes between the Olympic Marina and the
Day Marina will take. These vessels will transit from the Olympic
Marina in the Wilmington River to Tybee Cut, through Tybee Cut to Half
Moon River and into Wassaw Sound were the Day Marina is located. The
same route is planned for the return trip.
Bull River (Proposed Section 165.T07-062(4))
This was the most commented on of the proposed zones. The zone, as
proposed, would close the southern entrance to Bull River at Pa Cooper
Creek and would close Tybee Cut in the event of adverse weather. The
proposed zone encompassed the Day Marina and provided for a less
crowded route for the ferries shuttling the athletes between the
Olympic Marina and the Day Marina.
The Coast Guard received eleven comments from business owners along
the Bull River objecting to this proposed zone. These businesses fall
into two primary categories; those that operate commercial vessels from
dock facilities and those with fixed shore-based operations, such as
restaurants or marinas. Most of the comments expressed concern that the
Coast Guard was being overly restrictive with regard to access to
Wassaw Sound and Bull River. The comments expressed a shared opinion
that business in this area would be significantly affected by the
proposed closing of the entrance to Bull River during the day. Fixed
shore based operations expressed concerns that customers would not be
able to reach the businesses and operators of commercial vessels moored
at docks in the area expressed concern that they would have to leave
the zone early in the day and not return until the evening. The
comments pointed out that though there is an alternate route between
this portion of the Bull River and Wassaw Sound via the Wilmington
River, there are fixed span bridges over the Bull River which limits
the size of vessels able to use this route. Hence, the only outlet for
vessels with height
[[Page 18951]]
restrictions is out the mouth of the Bull River.
Conversely, the ACOG also expressed concerns about the proposed
Bull River zone, stating that the zone as proposed was not restrictive
enough. The ACOG requested that the Coast Guard also close the Half
Moon River northwest of Tybee Cut, thereby including all of Tybee Cut
within the zone during all times that the zone was in effect, not just
during adverse weather as proposed. In its comments, the ACOG noted
that Tybee Cut was chosen for transiting athletes for a number of
reasons. Tybee Cut provides a route which is more protected from
adverse weather as well as providing a shorter transit that does not
interfere with racing in the Alpha race course (located in Wassaw
Sound). The ACOG also pointed out that the only alternate route
available for ferrying athletes between the Olympic Marina and the Day
Marina was down the Wilmington River and then through Wassaw Sound.
This route is considered unacceptable by the ACOG. Not only is the
route longer and more prone to adverse weather, but more importantly it
dramatically increases the athletes' exposure to the large number of
commercial and recreational vessels expected to be transiting through,
and congregating at, the mouth of the Wilmington River. The comment
from the ACOG also noted that the Coast Guard had proposed July 6, 1996
as the starting date for the safety/security zones, but that in the
ACOG's opinion, the zones would not be needed until July 8. The ACOG
suggested that the Coast Guard delay the effective date for the Bull
River zone to July 8, 1996.
The Coast Guard has reviewed the concerns expressed by the
businesses and individuals regarding access to Wassaw Sound and Bull
River, but must balance their need for access with the need for Olympic
athletes' security. The Bull River area will be heavily used by Olympic
athlete shuttles and affiliated Olympic vessels. The security zone
boundaries and effective dates have been carefully tailored to ensure
the need for athlete security is met. The Coast Guard agrees with the
ACOG's concerns for security in this area. The Day Marina, which is the
center of activity for the Olympic yachting events, consists of a group
of barges moored in the water and is exposed on all sides. The vessels
participating in the Olympic yachting races will be moored at the
marina and will be transiting between the Day Marina and the race
courses throughout the day. Large concentrations of athletes will be
present at the marina throughout the day as well. Additionally, as the
ACOG commented, because of the high concentration of spectator and
commercial vessels expected in the Wilmington River near Wassaw Sound,
ferrying athletes out the Wilmington River and into Wassaw Sound from
the south will expose the athletes to a higher security risk. The Coast
Guard is also concerned with navigational safety in this area. Wassaw
Sound consists primarily of shoal waters, which create extremely
hazardous conditions if the area becomes congested with vessels. For
these reasons it would be extremely difficult to allow unimpeded vessel
traffic in this area while still ensuring the safety of the Olympic
athletes and of boaters.
In response to these comments, in the final rule the Coast Guard
has modified the boundaries and the effective times of the Bull River
zone to improve accessibility while still ensuring the need for athlete
security is met. Based on the ACOG's concerns for athlete security, a
security/safety zone will close all of Tybee Cut and a portion of the
Half Moon River to unaffiliated vessels from July 6 until August 2,
1996 from 8 a.m. to 7 p.m. EDT daily. Unaffilated vessels are defined
as all vessels that are not registered with the ACOG or designated as
an Official Vessel by the Coast Guard Captain of the Port. However,
after internal discussions within the Coast Guard and in consultation
with the ACOG, the Coast Guard has decided that from July 6 through 18,
1996, Tybee Cut and parts of the Half Moon River is the only part of
the proposed Bull River zone which will be in effect (Tybee Cut/Half
Moon River zone). From July 19 through August 2, 1996, the safety/
security zone in this area will encompass all of the Tybee Cut/Half
Moon River zone plus a portion of the Bull River. However, the boundary
proposed in the NPRM across the Bull River has been shifted south in
the final rule. The boundary of the proposed Bull River zone ran from
Pa Cooper Creek due east to the marsh adjacent to the entrance to Bull
River. The new boundary line spans the Bull River farther south, and
provides a one hour window, for passage thru Tybee Cut from 1 p.m. to 2
p.m. From July 19 to August 2, Wassaw Sound will be inaccessible from
Bull River from 8 a.m. to 7 p.m. EDT daily. Tybee Cut will be used by
the Athlete Shuttles and affiliated vessels from 8 a.m. to 1 p.m. EDT
and from 2 p.m. to 7 p.m. EDT daily. Unaffiliated vessels will be
allowed access to Tybee Cut, the Half Moon River, and the Bull River
from 1 p.m. to 2 p.m. EDT daily. However, unaffiliated vessels will not
be allowed to proceed south of the line described in section 165.T07-
062(a)(5). This one hour access window may slide to a later time if
race delays occur. Additionally, from 7 p.m. to 8 a.m. EDT daily,
unrestricted access to Tybee Cut, the Half Moon River and the Bull
River will be allowed.
The Olympic yachting events do not begin until July 19, though
athletes will be in the area beginning July 6, 1996. The Coast Guard
has decided that despite the ACOG's opinion that this zone need not be
effective until July 8, it is necessary that a zone encompassing Tybee
Cut be effective July 6. Beginning July 6, 1996, all of the waterside
venues will be considered as being under the ``Olympic umbrella'' and
athletes will have full access to all venues. Therefore, as athletes
will be ferried through Tybee Cut beginning July 6, 1996, that date
will remain as the effective date for the Tybee Cut/Half Moon River
zone.
Between July 6 and 19, 1996, the eastern boundary of the safety/
security zone closing Tybee Cut, the Tybee Cut/Half Moon River zone,
will be the eastern entrance of the Half Moon River on the Wassaw
Sound. This modification will allow vessels to navigate between the
Bull River and Wassaw Sound west of Wassaw Breaker throughout that time
period. Access between Bull River and Wassaw Sound, east of Wassaw
Breaker, is restricted by the 200 yard fixed safety/security zone
around the Day Marina. However, the Coast Guard notes that due to tidal
changes in this area, the access between Bull River and Wassaw Sound
west of Wassaw Breaker will be a viable alternative for vessel transit
only at certain tides. As with the proposed Bull River zone, the Tybee
Cut/Half Moon River zone will only be in effect from 8 a.m. to 7 p.m.
EDT, thereby allowing free transit of vessels throughout almost all of
this area during the evening. This zone is described in Sec. 165.T07-
062(a)(4).
In light of the modifications to the proposed Bull River zone
discussed above, and to address security concerns in the immediate
vicinity of the Day Marina, this final rule contains a new safety/
security zone in Wassaw Sound, described in Sec. 165.T07-062(6), which
extends in a radius of 200 yards around the Day Marina. This zone will
be in effect twenty-four hours a day from 8 a.m. EDT July 6, 1996
through 7 p.m. EDT August 2, 1996. The COTP anticipates granting
permission for vessels to transit through this zone from 7 p.m. to 8
a.m. EDT daily, under the condition that vessels remain at a
[[Page 18952]]
distance of at least 50 yards from the Day Marina.
The Coast Guard received one comment seeking a dedicated small
vessel viewing area within the Bull River zone to allow spectator
vessels to view the races. In response to this comment as discussed
above, the proposed security zone boundary across the Bull River has
been shifted south in the final rule. This modification is in addition
to the fact that, as discussed above, access to and from the Bull River
west of Wassaw Breaker will not be effected until July 19. The new
boundary line spans the Bull River farther south, though the resulting
zone (termed the Tybee Cut/Bull River/Half Moon River zone) effectively
closes the eastern and western entrance to Half Moon River in addition
to closing off access to Tybee Cut. This zone is now described in
Sec. 165.T07-062(a)(5). This southern shift in the zone boundary will
allow small vessels to get closer to the racing areas without
compromising safety or security. The Tybee Cut/Bull River/Half Moon
River zone does not prevent small vessels from viewing the event from
outside the security zone perimeter. Also as discussed above, Wassaw
Sound will be inaccessible from Bull River from July 19 to August 2,
1996, but unaffiliated vessels will be allowed access to Tybee Cut, the
Half Moon River, and the Bull River from 1 p.m. to 2 p.m. EDT daily
provided unaffiliated vessels do not proceed south of an alternate line
described in section 165.T07-062(a)(5). This one hour access window may
slide to a later time if race delays occur. The ACOG has agreed not to
run ferries through Tybee Cut during this time to allow unimpeded
access. This window should allow adequate time for vessels to transit
without jeopardizing security. After the Olympic events are completed
for the day, from 7 p.m. to 8 a.m. EDT daily, the zone will not be
effective and therefore access to Tybee Cut, the Half Moon River and
the Bull River will be allowed.
A number of comments expressed concern about the closing of Tybee
Cut and the effect on boating safety that may have in regard to vessels
seeking to return to port in the case of adverse weather. The Coast
Guard is concerned with ensuring vessel safety, but notes that access
to Tybee Cut is not required to ensure vessels can reach a safe harbor
in case of adverse weather. Although the Coast Guard recognizes that
Wassaw Sound can get choppy in adverse weather, once a vessel reaches
the vicinity of Cabbage Island, an area outside all of the safety/
security zones, calmer water can be found. There are also marinas
available and accessible along the southern end of the Wilmington River
at which vessels may moor. Therefore, it is the Coast Guard's opinion
that due to available alternatives, Tybee Cut need not remain open to
ensure the safety of vessels in the area.
The Coast Guard received one comment from the owner of commercial
towing business located on Half Moon River. This individual had
purchased property on this waterway due to its proximity to the Olympic
venues and was concerned that he would be unable to leave his property.
The comment stated that the location was selected partially based on
conversations with Coast Guard officials last year who had expressed a
need for commercial towing assistance during the Olympics. The Coast
Guard notes that the boundaries of the zones in this area, both the
Tybee Cut/Half Moon River and Tybee Cut/Bull River/Half Moon River, are
carefully tailored to meet the need for security for Olympic athletes
and officials. The property which is the subject of the comment is a
private residence which provides a convenient area for mooring a tow
vessel. Although the Coast Guard realizes that mooring this vessel at
another location may be inconvenient, there are a number of available
marinas and other areas which may be used by this business as a staging
area to provide commercial towing assistance. Access to half Moon River
and Tybee Cut is not needed to tow any vessel for safety or repairs. As
discussed above, and in part to provide this business with some
flexibility while at the same time providing for navigational safety
and security, the zones in the Half Moon River area, Sec. 165.T07-
062(a)(4), have been revised to open a one hour window of opportunity
for accessibility via Tybee Cut and Half Moon River in addition to the
7 p.m. to 8 a.m. EDT accessibility. Businesses with mobile assets such
as this, or vessels with draft restrictions, are advised to seek other
staging or embarkation points if additional flexibility is needed.
The Coast Guard received several comments at the public meeting and
seven written comments which addressed the perceived hardships the
proposed zones would have on the charter boat industry and marinas
which operate in and around the Bull River. These comments represented
the interests of vessel owners whose primary business is fishing
charters, vessels that have been chartered to carry spectators, and two
marinas on the Bull River that cater to charter vessels and sailboats.
The change in effective dates of the zone, specifically, the opening of
access between the Bull River and Wassaw Sound between July 6 through
July 18, 1996 should help alleviate many of these businesses concerns.
For the period of time when access to the Bull River is closed off or
tidal conditions make access between the Bull River and Wassaw Sound
difficult for draft restricted vessels, as discussed above, there are
several alternate routes vessels may take to transit between the Bull
River and Wassaw Sound. The most direct route is directly out the mouth
of the Bull River into the Sound, west of Wassaw Breaker. Subject to
tidal state, this route will be available from July 6 through 18 as a
result of the modifications in this final rule. Under both the proposed
and final rule, this route is also available every evening from 7 p.m.
to 8 a.m. EDT. A second route is up the Bull River to Turner Creek and
then into the Wilmington River. The second option requires a vessel to
clear the upstream fixed span Route 80 bridge, which has a vertical
clearance of 20 feet spanning the Bull River, en route to the
Wilmington River. Three comments noted that any non-direct route
between the Bull River and Wassaw Sound would add significant time to
each trip, with estimates ranging from one to three hours additional
transit time in each direction for vessels transiting between the Bull
River and Wassaw Island, a traditional fishing ground. Most of the
vessels affected by this rule are either too tall to clear the bridge
or can do so only during certain tidal conditions. Additionally, one
comment noted that even for vessels that can clear the bridge, the
added time would make the normal fishing charter trip, which travels to
the southeast of Wassaw Island, unmanageable in a typical eleven hour
fishing day. The problem is aggravated by the fact that July and
August, the times when the Bull River zone will be effective, is the
charter industry's peak season. The marinas also commented that they
expected to lose revenues as a result of the loss of charter boat
business, loss in fuel sales and loss in dockage fees from sailboats.
Restaurants and marina operators also commented that they expect to
lose business because of the restrictions imposed by the proposed Bull
River zone. Additionally, the marinas anticipated that the loss in
dockage fees would continue in the future, citing a perceived trend
that once someone changed to a new marina, they seldom return the
following year.
The Coast Guard notes that portions of the Bull River, up river
from the Tybee Cut/Bull River/Half Moon River
[[Page 18953]]
security/safety zone are being designated as a special anchorage area
in a separate final rule. As a result, a large increase in smaller
vessels and their passengers can be anticipated in the river. Many of
these vessels will not be constrained by the limited clearance of the
fixed span bridge and will be able to transit between the Bull River
and Wilmington River during all times of the day. These vessels will be
able to utilize any dock space vacated by the larger vessels.
Additionally, the large number of people and vessels expected to use
the anchorage area and the Bull River in general during the Olympics
should help alleviate some of the lost revenue for businesses along
Bull River. Any anticipated future losses are merely speculative. The
Coast Guard estimates that overall in the Savannah area there will be
an increase of 1000-2000 vessels during the time period when this rule
is in effect. The ACOG estimates that each day its vessels and
officials alone will use between 7,000 and 10,000 gallons of gasoline,
two tons of ice, and eat over 1600 lunches. Those estimates are in
addition to the need for similar items for the over 1500 volunteers who
will be assisting with the events and for the support boats for the
racing teams which will be used through July 19. It is inevitable that
with all of the expected vessels, there will also be a large demand for
vessel repairs.
In regard to the larger vessels, the Coast Guard is aware of the
inconveniences that the operation of the zone will cause, but notes
that there are other locations where these vessels can dock or anchor
that are not affected by any of the zones. The boundaries of the Tybee
Cut/Bull River/Half Moon River zone, as well as all the safety/security
zones being adopted by this final rule, have been narrowly tailored to
provide adequate security while still providing for the interests of
navigation. The Coast Guard notes that access from the Bull River to
Wassaw Sound will only be restricted during the days and times that the
majority of athletes and officials will be present. This will allow
access between the Bull River and Wassaw Sound during the evening and
from July 6 to July 18, 1996. Additionally, as discussed above, the
Captain of the Port anticipates granting general permission for all
vessels to transit between the Bull River and Half Moon River and
through Tybee Cut for an hour each afternoon, usually from 1 to 2 p.m.
EDT, to allow greater accessibility between Bull River and Wassaw
Sound.
Atlantic Ocean and Wassaw Sound Zone (Proposed Section 165.T07-062(5))
The Coast Guard received three comments concerning the Atlantic
Ocean/Wassaw Sound zone. The first of these comments suggested that
vessels and operators be allowed access to the Atlantic Ocean/Wassaw
Sound zone after successfully undergoing a security screen. A second
related comment sought access to the northern side of Wassaw Sound for
a commercial charter business. The combination of security and safety
concerns in the Atlantic Ocean/Wassaw Sound zone area combine to
prohibit the entrance of any unaffiliated vessels into this zone. The
implementation of a security screen by the Coast Guard would pose
significant security and traffic management problems that would far
outweigh any benefits that may result. Therefore, the Coast Guard is
not adopting that suggestion and is not allowing access into this zone.
Due to the over 280 competition vessels and 200 powered support vessels
operating and racing in the area, this and the other safety/security
zones are expected to experience a high degree of congestion during the
Olympic races. The Coast Guard believes that to additionally allow the
heavy concentration of recreational and commercial vessels expected as
spectators into these zones would create an inherently unsafe
condition. Therefore, even if all security concerns could be
eliminated, which in and of itself would be a time consuming and
intrusive task, the safety concerns are too great to allow this type of
controlled access. The Atlantic Ocean/Wassaw Sound zone is located near
both the Day Marina, where vessels ferrying Olympic athletes will be
moored and race venue ``A'', where athletes and numerous vessels will
be present. In addition, athlete shuttles will regularly transit the
area. As proposed by the ACOG and as discussed below, the only
spectator vessels allowed within the zones will be a controlled number
of vessels carrying passengers with official Olympic tickets to view
the yachting events (ticketed spectator vessels). Those vessels and the
passengers on board will undergo extensive security screens prior to
entry into the zone and their movement within the zone will be strictly
controlled so as not to create a hazard to navigation.
The Coast Guard also received one comment from the operator of a
sea kayak business. The business launches kayaks from the south end of
Tybee Island and the kayaks then proceed to Myrtle Island. Under the
proposed Atlantic Ocean/Wassaw Sound zone, Myrtle Island and
surrounding water would be inaccessible as the area would be
encompassed within the zone. The commentor was concerned the impact of
the zone would have on his business and asked that the zone be modified
so that the zone ended fifty yards offshore off the beach of Myrtle
Island. In response to this comment, the Atlantic Ocean/Wassaw sound
zone has been slightly modified from the proposal to allow access to
the marsh area within 50 yards of Myrtle Island, thereby providing a
large area suitable for kayaking without compromising safety or
security. Additionally, due to the modifications to the proposed zones,
the Atlantic Ocean/Wassaw Sound zone has been renumbered in the final
rule and now is described in Sec. 165.T07-062(7).
Ticketed Vessels
The Coast Guard received one comment that suggested the
``ticketed'' vessels that will operate inside the safety/security zones
appear to represent a privileged fleet, particularly given the high
price of tickets. The Coast Guard notes that these vessels, as well as
their passengers, will be subject to the same security measures that
spectators attending shoreside events will undergo. These vessels are
merely mobile ``bleachers'' that will operate within the security
envelope subject to strict instructions from the ACOG and the Captain
of the Port. Tickets are being sold to all other Olympic events; the
yachting events are no different. The cost of these tickets is
comparable to the price of tickets for other Olympic events. As noted
above, limiting spectator vessel access is necessary to ensure
navigational safety and the security of the Olympic athletes and
associated vessels.
Impacts on Commercial Fishermen
Several comments from commercial fisherman, commercial crab
trappers and bait draggers in the area expressed concerns that they
would be unduly impacted by the regulations due to the combination of
the limited areas and times authorized for fishing by the safety and
security zones and the limitations imposed by their state issued
fishing licenses. Crab trappers commented on the inordinate number of
buoys lost in the Wilmington River during last summer's regatta and
were concerned that the high volume of traffic during the Olympics
would result in the loss of large numbers of traps. A representative
for commercial fishermen and shrimpers at the public meeting pointed
out that there are usually 150-200 traps out during any given time and
[[Page 18954]]
that during a regatta last summer each boat lost nearly 50 traps.
Concern was also expressed by a crab trapper on the effect of delays in
entering Turner Creek and Wilmington River in combination with the
summer heat, which could lead to loss of many crabs after harvesting.
The Coast Guard has reviewed the problems raised by the commercial
fishermen which will result from the combination of heavy vessel
traffic and restrictions on access due to the safety/security zones.
The Coast Guard must balance these concerns against concerns, discussed
in detail above, for security and navigational safety. In trying to
strike a balance, the Coast Guard has had discussions with the State of
Georgia Marine Fisheries Branch of Georgia Department of Natural
Resources (DNR) which has been made aware of the concerns of the
fishermen. The DNR is giving consideration to changing the authorized
locations and/or hours of operation during the period covered by the
Olympics. These changes would help alleviate some of the problems
mentioned by commercial fishermen by reducing the overlap in times when
access to certain areas will be restricted by the safety/security zones
and access is permitted by state fishing licenses.
The ACOG has agreed to add a warning to its volunteer training
program and to boating information given to the participants
highlighting the need to be respectful of crabbers' traps. The Coast
Guard also notes, though, that some disturbance of traps is unavoidable
and that the representative at the public meeting noted that the
impacts expected on trap loss during the Olympics is about the same as
that expected on any busy weekend.
Additionally, the Coast Guard notes that the changes in planned
operation of the zone in the Turner Creek/Wilmington River area
(Sec. 165.T07-062(2)) to allow direct transit through the zone, as
opposed to making vessels wait and escorting those vessels in groups
through the zone, should reduce the concerns about loss of crabs due to
prolonged exposure to heat. Vessels will be denied immediate transit
through this area only in cases of immediate safety or security
concerns.
Discussion of Regulations
These regulations are intended to promote secure and safe
navigation on the waters surrounding the Olympic Village, Olympic
ceremonies, Olympic Marinas, racing venue areas, and athlete waterborne
transits, by controlling the traffic entering, exiting and traveling
within these waters.
Coast Guard and State Law Enforcement patrol vessels with a Coast
Guard representative on board will be on scene to enforce the zones and
direct traffic. No persons or vessels will be allowed to enter or
operate within the zones while they are in effect, except as may be
authorized by the Captain of the Port. These regulations are issued
pursuant to 33 U.S.C. 1231 and 50 U.S.C. 191, as set out in the
authority citation of all of Part 165.
The effective dates of the individual safety/security zones vary,
but overall the zones are in effect from July 6 to August 4, 1996.
Six fixed and one moving safety/security zone are being established
in the following areas: (1) Savannah River (Olympic Village area), all
the waters around the Marriott Hotel-Olympic Village; (2) Wilmington
River/Turner Creek (Olympic Marina area); (3) Wilmington River/Tybee
Cut, moving safety/security zones will be placed around all Olympic
Athlete Shuttle vessels with athletes on board while transiting between
the Olympic Marina and the Day Marina; (4) Tybee Cut/Half Moon River,
the western entrance to Tybee Cut and the western and eastern approach
to Half Moon River (July 6-18); (5) Tybee Cut/Bull River/Half Moon
River, the western entrance to Tybee Cut, the western approach to Half
Moon River and southern entrance to the Bull River (July 19-August 2);
(6) Wassaw Sound, a fixed security zone will be placed around the Day
Marina; and (7) the Atlantic Ocean and Wassaw Sound offshore racing
areas, which includes the area from Myrtle Island until the Wilmington
River and the area from Wilmington Island until the junction of the
Half Moon and Bull Rivers. The following is a detailed description of
each zone and its effective times.
Olympic Village: This zone will be in effect 24 hours a day from 8
a.m. EDT July 6 to 12 p.m. EDT August 4, 1996 and will affect the
entire width of the Savannah River for a distance of 1,000 yards
centered on the Marriott Hotel. Vessels representing the Captain of the
Port will be available to escort unaffiliated vessels desiring to
transit the area. Unaffiliated vessels are defined as all vessels that
are not registered with the ACOG or designated as an Official Vessel by
the Coast Guard Captain of the Port. Vessels will be asked to transit
along the Northern side of the channel. During periods of heavy
recreational traffic, delays should be expected. Priority will be given
to commercial traffic. On July 20th, July 29th and August 2nd the zone
will be extended 500 yards to the west from 7:30 p.m. to 10:30 p.m. EDT
for the opening, medal, and closing ceremonies. No vessels will be
allowed to transit the zone during these times.
Olympic Marina: This zone will be in effect 24 hours a day from 8
a.m. EDT July 6 to 7 p.m. EDT August 2, 1996 and will extend across the
mouth of Turner Creek, just east of Sail Harbor. The zone will extend
200 yards west into the Wilmington River from Turner Rock and run south
to a point due west of the first private dock, and then easterly to the
shore. Vessels will need permission from a Coast Guard official acting
for the COTP in the vicinity prior to transiting into or out of Turner
Creek. Once permission is granted to transit the zone, unaffiliated
vessels will not be allowed to stop or loiter in the vicinity of Sail
Harbor or the Sheraton Complex. The COTP anticipates routinely granting
permission to transit the zone, but should the number of vessels
seeking to transit this area reach a number that compromises athlete
security the Coast Guard may escort groups of vessels through the area,
require one-way transits, or deny access for short time periods. Delays
should be minimal.
Wilmington River/Tybee Cut: A 75 yard moving safety/security zone
will be enforced around Athlete Shuttles from 8 a.m. to 7 p.m. EDT
daily from July 6 to August 2, 1996 as they transit from the Olympic
Marina (Sheraton) to the Day Marina at Beach Hammock. Vessel operators
will need to be alert for the approach of these vessels and stand
clear. Athlete shuttle vessels will be in continuous operation from 8
a.m. to 7 p.m. EDT and will proceed down the eastern side of the
Wilmington River, through Tybee Cut, into Half Moon River and then to
the Day Marina located in Wassaw Sound. The same route will be used for
return trips.
Tybee Cut/Half Moon River: This safety/security zone closes Tybee
Cut to all unaffiliated vessels from 8 a.m. to 7 p.m. EDT daily from
July 6 to July 18, 1996. From July 19 through August 2, 1996 the area
encompassed by this becomes part of the Tybee Cut/Bull River/Half Moon
River zone. As part of this zone, the entrance to the Half Moon River
just west of the intersection with Tybee Cut will also be closed. The
eastern boundary of this zone will be the eastern entrance of the Half
Moon River on Wassaw Sound. Wassaw Sound, west of Wassaw Breaker will
be open to vessel traffic during this time. Tybee Cut will be used by
the Athlete Shuttles and affiliated vessels from 8 a.m. to 1 p.m. EDT
and from 2 p.m. to 7 p.m. EDT. The Captain of the Port, via Broadcast
Notice to Mariners, will grant general permission for all vessels to
transit between the Bull River and Half
[[Page 18955]]
Moon River and between Tybee Cut and Wilmington River. This one hour
access window may slide to a later time if race delays occur.
Additionally from 7 p.m. to 8 a.m. EDT daily, unrestricted access to
Tybee Cut, the Half Moon River and the Bull River will be allowed.
Tybee Cut/Bull River/Half Moon River: This zone is effective from
July 19 to August 2. The zone will encompass the entire area of the
Tybee Cut/Half Moon River zone described above, including closing Tybee
Cut, but the eastern boundary will shift to be across the Bull River at
the Northern end of Wassaw Sound. As a result, from July 19 to August
2, Wassaw Sound will be inaccessible from Bull River from 8 a.m. to 7
p.m. EDT daily. Tybee Cut will continue to be used by the Athlete
Shuttles and affiliated vessels from 8 a.m. to 1 p.m. EDT and from 2
p.m. to 7 p.m. EDT. Unaffiliated vessels will be allowed access to
Tybee Cut, the Half Moon River, and the Bull River from 1 p.m. to 2
p.m. EDT daily. However, unaffiliated vessels will not be allowed to
proceed south of an alternate line described in section 165.T07-
062(a)(5). This one hour access window may slide to a later time if
race delays occur. Additionally from 7 p.m. to 8 a.m. EDT daily,
unrestricted access to Tybee Cut, the Half Moon River and the Bull
River will be allowed.
Wassaw Sound: A 200 yard safety/security zone will be in effect 24
hours a day form 8 a.m. EDT July 6 to 7 p.m. EDT August 2, 1996 around
the Day Marina. No unaffiliated vessels will be allowed access to the
zone from 8 a.m. to 7 p.m. EDT. Note that beginning July 19 when the
Tybee Cut/Bull River/Half Moon River and Wassaw Sound/Atlantic Ocean
safety/security zones are in effect this zone around the Day Marina, is
fully encompassed by those zones. From 7 p.m. to 8 a.m. EDT all vessels
will be granted permission to transit this zone between Wassaw Sound
and the Bull River, under the condition that the vessels may not
proceed closer than 50 yards to the Day Marina, and must obtain prior
authorization from Coast Guard Vessels patrolling the zone.
Wassaw Sound/Atlantic Ocean: The approximately 14 mile long safety/
security zone offshore will be established from July 19 to August 3,
1996 and will be in effect 24 hours a day. From 8 a.m. to 7 p.m. EDT no
unaffiliated vessels will be granted permission to enter this zone.
Vessels desiring to transit the area from 7 p.m. to 8 a.m. EDT will
need to check in with Coast Guard vessels in the vicinity for
permission. The Coast Guard expects to grant such permission, provided
there are no immediate safety or security concerns.
The regulations for the offshore racing areas included within this
zone will be enforced for the race venues which are located within the
navigable waters of the United States. These regulations are necessary
to minimize navigational dangers and to ensure the safety and security
of Olympic athletes and affiliated vessels operating within the Olympic
venue. Nonobligatory guidelines are included in the regulatory language
for that portion of the racing venue which falls outside the navigable
waters of the United States. Entry into this safety/security zone by
other than affiliated vessels will be prohibited without permission of
the Captain of the Port or the Olympic Patrol Commander.
Olympic Torch: The Coast Guard is establishing a moving safety zone
for the vessel which will carry the Olympic torch to the Savannah
waterfront, prior to the commencement of the 1996 Olympic Games. The
exact route of the torch is uncertain at this time. The zone will
commence either, on the Savannah River in the vicinity of Coast Guard
Station Tybee and continue west up river to the Highway 17A bridge
(Talmadge bridge), or at the mouth of the Wilmington River and proceed
to the Savannah River via the ICW and thence westerly to the Highway
17A bridge. The safety zone is needed for the protection of the vessel
carrying the Olympic torch. The Captain of the Port will provide escort
vessels and restrict approaching vessel operations in support of the
moving safety zone.
Olympic Fireworks: Finally, the Coast Guard is establishing a
safety zone for a fireworks display in connection with Olympic
festivities, on the Savannah River in the vicinity of Rousakis Plaza.
The safety zone is needed to protect vessels, facilities, and personnel
from safety hazards associated with the storage, preparation, and
launching of fireworks. The Captain of the Port is restricting vessel
operations in the safety zone.
Regulatory Evaluation
These regulations are not a significant regulatory action under
section 3(f) of Executive Order 12866 and do not require an assessment
of potential costs and benefits under section 6(a)(3) of that order. It
has been exempted from review by the Office of Management and Budget
under that order. It is not significant under the regulatory policies
and procedures of the Department of Transportation (DOT) (44 FR 11040;
February 26, 1979). The Coast Guard expects the economic impact of this
rule to be so minimal that a full Regulatory Evaluation under paragraph
10e of the regulatory policies and procedures of DOT is unnecessary. As
discussed in the preamble, the boundaries, effective dates and times of
all of the safety/security zones in this rule have been carefully
tailored to meet the needs of security for the Olympic athletes while
still providing for navigational safety. The 1,000 to 2,000 extra
vessels expected to be in the Savannah area for the Olympics will bring
a large amount of extra business into the area for many of the
businesses affected by this rule.
Small Entities
Under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.), the
Coast Guard considered whether this rule will have a significant effect
on a substantial number of small entities. ``Small entities'' may
include (1) small businesses and not for profit organizations that are
independently owned and operated and are not dominant in their fields
and (2) governmental jurisdictions with populations of less than
50,000.
Over 1,100 athletes and coaches representing over 80 countries,
over 300 competition vessels, as well as approximately 1,000 to 2,000
support and spectator vessels are expected to arrive and participate in
the festivities of the 1996 Olympic yachting competition. To ensure the
security of the Olympic athletes and support personnel and to ensure
the safety of the large volume of recreational and spectator vessels
expected in the area, the Coast Guard is establishing these safety/
security zones. The Coast Guard realizes that this rule will have some
effect on some small entities, but the rule has been narrowly tailored
to provide for security of the athletes and navigational safety on the
waterways. The effective dates and times as well as the boundaries of
the zones have been examined to ensure that they restrict movement only
to the extent necessary to ensure security and navigational safety.
Many of the zones are only in effect from 8 a.m. to 7 p.m. EDT when
athletes are most likely to be in the areas, providing unlimited access
to many areas each evening. As discussed in the preamble, alternate
routes to those routes affected by this rule exist for many of the
zones. If a vessel needs to transit through a zone, the COTP may grant
permission for vessel transit even when the zone is in effect. To help
vessels plan transits, the Coast Guard has provided details in this
rule as to times and places when the COTP anticipates granting such
permission and how vessels may request such
[[Page 18956]]
permission. As discussed in the preamble, the Olympic yachting events
will bring large numbers of people and vessels into the area. Although
the effect of this rule on small business is difficult to quantify, the
Coast Guard expects that losses incurred by small entities as a result
of this rule may be offset by a large increase in potential customers,
albeit temporary.
For the reasons discussed above, including the determination that
this rule is not economically significant, the Coast Guard certifies
under section 605(b) of the Regulatory Flexibility Act (5 U.S.C. et
seq.) that this rule will not have a significant economic impact on a
substantial number of small entities.
Collection of Information
This rule contains no collection-of-information requirements under
the Paperwork Reduction Act (44 U.S.C. 3501 et seq.).
Federalism
This action has been analyzed in accordance with the principles and
criteria contained in Executive Order 12612, and it has been determined
that the rule does not have sufficient federalism implications to
warrant the preparation of a Federalism Assessment.
Environmental Assessment
The Coast Guard has considered the environmental impact of this
rule consistent with Section 2.B.2. of Commandant Instruction
M16475.1B. In accordance with that section, this action has been
environmentally assessed (EA completed), and the Coast Guard has
concluded that it will not significantly affect the quality of the
human environment. An environmental assessment and finding of no
significant impact has been prepared and is available for copying and
inspection where indicated under the ADDRESSES section above.
List of Subjects in 33 CFR Part 165
Harbors, Marine safety, Navigation (water), Reporting and
recordkeeping requirements, Security measures, Waterways.
Final Regulations
In consideration of the foregoing, Part 165 of Title 33, Code of
Federal Regulations, the Coast Guard amends as follows:
PART 165--[AMENDED]
1. The authority citation for Part 165 continues to read as
follows:
Authority: 33 U.S.C. 1231; 50 U.S.C. 191; 33 CFR 1.05-1(g),
6.04-1, 6.04-6, and 160.5; 49 CFR 1.46.
2. A new Sec. 165.T07-062 is added to read as follows:
Sec. 165.T07-062 Safety/Security Zones: Savannah River, Wilmington
River and Turner Creek, Bull River and Wassaw Sound, GA.
(a) Safety/Security zones. The following areas are safety/security
zones (all coordinates referenced use Datum: NAD 1983):
(1) Marriott Hotel/Olympic Village. The safety/security zone is in
the following area: from the Marriott Hotel Olympic Village on the
Savannah River in position:
32 deg. 04' 48'' N, 81 deg. 04' 54'' W; thence east to
32 deg. 04' 45'' N, 81 deg. 04' 44'' W; thence west to
32 deg. 04' 49'' N, 81 deg. 05' 05'' W.
This zone includes all waters within the above noted area in the
Savannah River from shore to shore. This zone is extended an additional
500 yards to the west for opening (July 20, 1996) and closing
ceremonies (August 2, 1996) as well as the award ceremonies (July 29,
1996).
(2) Olympic Marina; Wilmington River and Turner Creek. The safety/
security zone is in the following area for the Olympic Village: On the
Wilmington River Commencing at position:
32 deg. 00' 41'' N, 81 deg. 00' 16'' W; thence west 200 yards to
32 deg. 00' 34'' N, 81 deg. 00' 22'' W; then southerly to
32 deg. 00' 13'' N, 81 deg. 00' 12'' W; then east to the shore of
Wilmington Island. Shoreside to the entrance of Turner Creek.
The eastern boundary of this zone is established in the following
position:
32 deg. 00' 32'' N, 80 deg. 59' 55'' W; thence north to
32 deg. 00' 37'' N, 80 deg. 59' 53'' W.
(3) Wilmington River and Tybee Cut. A moving safety/security zone
is in the following areas:
All waters within a 75 yard radius around all Olympic athlete
shuttle vessels with Olympic athletes and officials onboard. These
vessels will be transiting the Wilmington River in the area between the
Olympic Marina at position:
32 deg. 00' 34'' N, 80 deg. 59' 55'' W; thence southeast via the
Wilmington River and Tybee Cut to,
31 deg. 56' 40'' N, 80 deg. 55' 46'' W; the Olympic Day Marina.
(4) Tybee Cut/Half Moon River. This safety/security zone closes
Tybee Cut and the eastern approach to the Half Moon River to all
unaffiliated vessels, at the following positions:
(i) Tybee Cut from shore to shore across the entrance at position:
31 deg. 57' 06'' N, 80 deg. 59' 09'' W.
(ii) Half Moon River (west) extending from shore to shore from
position:
31 deg. 58' 15'' N, 80 deg. 57' 46'' W; northeast to
31 deg. 58' 16'' N, 80 deg. 57' 36'' W.
(iii) Half Moon River (east) extending from shore to shore from
position:
31 deg. 57' 42'' N, 80 deg. 57' 05'' W; thence northerly to
31 deg. 57' 53'' N, 80 deg. 57' 00'' W.
This zone includes all of Tybee Cut.
(5) Tybee Cut/Bull River/Half Moon River. This safety/security zone
closes Tybee Cut, the southern entrance to the Bull River, and the
eastern approach to the Half Moon River to all unaffiliated vessels, at
the following positions:
(i) Tybee Cut from shore to shore across the entrance at position:
31 deg. 57' 06'' N, 80 deg. 59' 09'' W.
(ii) Half Moon River extending from shore to shore from position:
31 deg. 58' 15'' N, 80 deg. 57' 46'' W; northeast to
31 deg. 58' 16'' N, 80 deg. 57' 36'' W.
(iii) Primary Bull River the southern most tip of Wilmington Island
at position:
31 deg. 57' 50'' N, 80 deg. 56' 55'' W; east to Little Tybee Island
31 deg. 57' 35'' N, 80 deg. 55' 55'' W.
Alternate Bull River from the northeastern most point of Cabbage
Island at position:
31 deg. 57' 35'' N, 80 deg. 56' 55'' W; east to Little Tybee Island
31 deg. 57' 35'' N, 80 deg. 55' 55'' W.
This zone includes all of Tybee Cut and establishes the
northwestern boundary of the Atlantic safety/security zone described in
paragraph (a)(6).
(6) Day Marina/Wassaw Sound. This safety/security zone extends in a
radius of 200 yards around the Olympic Day Marina located in
approximate position 32 deg. 56' 40'' N, 81 deg. 55' 52'' W.
(7) Atlantic Ocean and Wassaw Sound. The following areas are a
safety/security zone:
(i) from a position in Wassaw Sound at:
31 deg. 57' 32'' N, 80 deg. 56' 31'' W; thence east to Little Tybee
Island, at 31 deg. 57' 30'' N, 80 deg. 51' 45'' W following the
southern shoreline of Little Tybee Island to 31 deg. 58' 16'' N,
80 deg. 51' 45'' W thence southeast.
31 deg. 58' 00'' N, 80 deg. 50' 48'' W; thence southeast
31 deg. 57 ' 45'' N, 80 deg. 50' 08'' W; thence southeast
31 deg. 57' 27'' N, 80 deg. 49' 21'' W; thence south
31 deg. 56' 21'' N, 80 deg. 48' 48'' W; thence southwest to
31 deg. 55' 34'' N, 80 deg. 49' 11'' W; thence southwest to
31 deg. 54' 45'' N, 80 deg. 49' 34'' W; thence
[[Page 18957]]
southwest to
31 deg. 53' 58'' N, 80 deg. 49' 55'' W; thence southwest to
31 deg. 53' 09'' N, 80 deg. 50' 19'' W; thence west to
31 deg. 52' 45'' N, 80 deg. 52' 00'' W; thence northwest to
31 deg. 53' 06'' N, 80 deg. 52' 30'' W; thence northwest to
31 deg. 53' 36'' N, 80 deg. 53' 15'' W; thence northwest to
31 deg. 54' 32'' N, 80 deg. 54' 27'' W; thence northwest to
31 deg. 54' 48'' N, 80 deg. 54' 55'' W; thence west to
31 deg. 55' 02'' N, 80 deg. 56' 20'' W; thence to a curved line
following the outer edge of Race Course Circle A northwest to 31 deg.
56' 11'' N, 80 deg. 58' 14'' W; east northeast to Cabbage Patch Island
at position 31 deg. 56' 18'' N, 80 deg. 58' 04'' W following the
southern shoreline of Cabbage Patch Island to 31 deg. 57' 30'' N,
80 deg. 56' 57'' W thence east to 31 deg. 57' 32'' N, 80 deg. 56' 31''
W. (ii) In Wassaw Sound from the southern tip of Wilmington Island at
the junction of the Half Moon and Bull Rivers at position:
31 deg. 57' 47'' N, 80 deg. 56' 25'' W; thence southeast to
31 deg. 57' 33'' N, 80 deg. 55' 55'' W; thence south including all
the waters of Wassaw Sound.
(b) Definitions.
(1) Unaffiliated vessels. All vessels that are not registered with
the Atlanta Committee on the Olympic Games (ACOG) or designated as an
Official Vessel by the Coast Guard Captain of the Port are unaffiliated
vessels.
(2) The ACOG vessels. All vessels that are registered with the
ACOG.
(3) Olympic athlete shuttle vessels. The ACOG vessels ferrying
Olympic athletes between the Olympic Marina and the Day Marina.
(4) Participant. Any competition vessel or vessel directly
supporting competition that is registered with the ACOG while in
performance of its official function relative to a given race.
(5) Competition Vessels. Any vessel approved and designated by the
ACOG for participation in sanctioned racing.
(6) Official Vessels. Official Vessels are all U.S. Coast Guard,
U.S. Coast Guard Auxiliary, state and local law enforcement, and
civilian vessels designated by the Coast Guard Captain of the Port.
(7) Captain of the Port. A Captain of the Port has been designated
by the Commander, Seventh Coast Guard District. The Captain of the Port
has the authority to control the movement of all vessels operating in
the regulated areas and may suspend the races at any time it is deemed
necessary for the protection of life and property.
Note: The Captain of the Port may be contacted during the
regulatory periods on VHF/FM Channel 16 (156.8 MHZ) or Channel 22
(157.1 MHZ) by calling ``Coast Guard Captain of the Port'' or
``Coast Guard Marine Safety Office Savannah''.
(8) Coast Guard Vessels. Any Coast Guard vessel or other vessel
with a Coast Guard representative onboard.
(c) Effective dates.
(1) Marriott Hotel/Olympic Village. The safety/security zone is
effective from 8 a.m. EDT July 6, 1996, and terminates at 12 p.m. EDT
August 4, 1996. From 7:30 p.m. until 10:30 p.m. EDT on July 20, July
29, and August 2, 1996 the zone is extended 500 yards west for the
opening, medals, and closing ceremonies.
(2) Olympic Marina; Wilmington River and Turner Creek. This safety/
security zone is effective from 8 a.m. EDT July 6, 1996, and terminates
at 7 p.m. EDT August 2, 1996.
(3) Wilmington River/Tybee Cut. This moving safety/security zone is
effective from 8 a.m. to 7 p.m. EDT daily from July 6, 1996 until
August 2, 1996.
(4) Tybee Cut/Half Moon River. This safety/security zone is
effective between 8 a.m. and 7 p.m. EDT daily from July 6, 1996 until
July 18, 1996. The Captain of the Port may authorize access to Tybee
Cut and Half Moon River between approximately 1 p.m. and 2 p.m. EDT
daily.
(5) Tybee Cut/Bull River/High Moon River. This safety/security zone
is effective between 8 a.m. and 7 p.m. EDT daily from July 19, 1996
until August 2, 1996. The alternate Bull River position granting access
to Tybee Cut and Half Moon River is effective between approximately 1
p.m. and 2 p.m. EDT daily, unless otherwise published by the Captain of
the Port in the Local Notice to Mariners.
(6) Day Marina/Wassaw Sound. This safety/security zone is effective
from 8 a.m. EDT July 6, 1996 to 7 p.m. EDT August 2, 1996.
(7) Atlantic Ocean and Wassaw Sound. This safety/security zone is
effective between the hours of 10 a.m. and 7 p.m. EDT daily, commencing
July 19, 1996 to August 2, 1996 on each race date.
The Captain of the Port may elect not to implement the regulations
on those race dates when the races are postponed or canceled;
announcement to that effect will be made by Broadcast Notice to
Mariners.
(d) Regulations.
(1) In accordance with the general regulations in Sec. 165.23 and
Sec. 165.33 of this part, entry into the zones established by this
regulation is prohibited unless authorized by the Captain of the Port
or a Coast Guard commissioned, warrant, or petty officer designated by
him. Section 165.33 also contains other general requirements.
(2) For the Atlantic Ocean/Wassaw Sound security/safety zone,
described in (a)(7), on those waters within the Olympic offshore race
venue which fall within the navigable waters of the United States,
i.e., those waters within three nautical miles of the baseline from
which the territorial sea is measured, the following regulations apply:
(i) Unaffiliated vessels shall remain outside the course perimeter,
as marked by the ACOG vessels and Official Vessels.
(ii) All vessels shall follow the instructions of any Coast Guard,
Coast Guard Auxiliary or state law enforcement vessels.
Note: The regulations specified in paragraph (d)(2) apply only
within the navigable waters of the United States. In all waters
within the Olympic offshore race venue which fall outside the
navigable waters of the United States, during the specified dates
and times, the following nonobligatory guidelines apply:
(A) All unaffiliated vessels should remain clear of the race venue
and avoid interfering with any participant, the ACOG or Official
Vessel. Interference with race activities may constitute a safety
hazard warranting cancellation or termination of all or part of the
race activities by the Captain of the Port.
(B) Any unauthorized entry within the race course perimeter, as
marked by the ACOG and Official Vessels, by unaffiliated vessels
constitutes a risk to the safety of marine traffic. Such entry will
constitute a factor to be considered in determining whether a person
has operated a vessel in a negligent manner in violation of 46 U.S.C.
2302.
3. A new temporary Sec. 165.T07-077 is added to read as follows:
Sec. 165.T07-077 Safety Zone: Savannah River, Savannah, GA.
(a) Location. The following area is a moving safety zone: All
waters within a 75 yard radius around the vessel that carries the
Olympic torch to the Savannah waterfront. The exact route of the vessel
carrying the torch will be announced via Broadcast Notice to Mariners
before the zone is in effect. The zone commences either, on the
Savannah River in the vicinity of Coast Guard Station Tybee
(approximate position of 32 deg. 02' 10'' N, 80 deg. 54' 16'' W) and
continue west up river to the Highway 17A bridge (Talmadge bridge)
(approximate position 32 deg. 05' 13'' N, 81 deg.
[[Page 18958]]
05' 47'' W), or at the mouth of the Wilmington River and proceed to the
Savannah River via the Intracoastal Waterway (ICW) and thence westerly
to the Highway 17A bridge. All coordinates referenced use Datum: NAD
1983.
(b) Effective date. This section is effective at 6 p.m. and expires
at 10 p.m. EDT on July 9, 1996, unless terminated sooner by the Captain
of the Port, Savannah, GA.
(c) Regulations. In accordance with the general regulations in
Section 165.23 of this part, entry into the zone is subject to the
following requirements:
(1) This safety zone is closed to all marine traffic, except as may
be permitted by the Captain of the Port or his representative.
(2) The ``representative of the Captain of the Port'' is any Coast
Guard commissioned, warrant or petty officer who has been designated by
the Captain of the Port, Savannah, GA, to act on his behalf regardless
of the support platform.
(3) Vessel operators desiring to enter or operate within the safety
zone shall contact the Captain of the Port or his representative to
obtain permission to do so. Vessel operators given permission to enter
or operate in the safety zone shall comply with all directions given
them by the Captain of the Port or his Representative.
(4) The Captain of the Port may be contacted by telephone via the
Command Duty Officer at (912) 652-4353. Vessels assisting in the
enforcement of the safety zone may be contacted on VHF-FM channels 16
or 81, or vessel operators may determine the restrictions in effect for
the safety zone by coming alongside a vessel patrolling the perimeter
of the safety zone.
(5) The Captain of the Port will issue a Marine Safety Information
Broadcast Notice to Mariners to notify the maritime community of the
safety zone and restrictions imposed. Coast Guard vessels enforcing the
zones will have informational handouts. Information will also be
available at local marinas.
4. A new temporary Sec. 165.T07-078 is added to read as follows:
Sec. 165.T07-078 Safety Zone: Savannah River, Savannah, GA.
(a) Location. The following area is a safety zone: All waters
within a 50 yards radius around a fireworks barge in the vicinity of
Rousakis Plaza, Savannah River, Savannah, GA at an approximate position
of 32 deg.04'.55 N, 81 deg.05'.27 W. All coordinates referenced use
Datum: NAD 1983. The Savannah River will be closed to all vessel
transits, during the actual fireworks display.
(b) Effective date. This section is effective at 9:15 p.m. and
expires at 11 p.m. EDT on July 4, 1996, unless terminated sooner by the
Captain of the Port, Savannah, GA.
(c) Regulations. In accordance with the general regulations in
Section 165.23 of this part, entry into the zone is subject to the
following requirements:
(1) This safety zone is closed to all marine traffic, except as may
be permitted by the Captain of the Port or his representative.
(2) The ``representative of the Captain of the Port'' is any Coast
Guard commissioned, warrant or petty officer who has been designated by
the Captain of the Port, Savannah, GA, to act on his behalf regardless
of the support platform.
(3) Vessel operators desiring to enter or operate within the safety
zone shall contact the Captain of the Port or his representative to
obtain permission to do so. Vessel operators given permission to enter
or operate in the safety zone shall comply with all directions given
them by the Captain of the Port or his representative.
(4) The Captain of the Port may be contacted by telephone via the
Command Duty Officer at (912) 652-4353. Vessels assisting in the
enforcement of the safety zone may be contacted on VHF-FM channels 16
or 81, or vessel operators may determine the restrictions in effect for
the safety zone by coming alongside a vessel patrolling the perimeter
of the safety zone.
(5) The Captain of the Port will issue a Marine Safety Information
Broadcast Notice to Mariners to notify the maritime community of the
safety zone and restrictions imposed. Coast Guard vessels enforcing the
zones will have informational handouts. Information will also be
available at local marinas.
Dated: April 23, 1996.
Roger T. Rufe, Jr.,
Rear Admiral, U.S. Coast Guard, Commander, Seventh Coast Guard
District.
[FR Doc. 96-10556 Filed 4-29-96; 8:45 am]
BILLING CODE 4910-14-M
Complete official Federal Register PDF
FR Doc. 96-10542 Defense Federal Acquisition Regulation Supplement; Pricing for Sales of Defense Articles
[Federal Register Volume 61, Number 84 (Tuesday, April 30, 1996)]
[Rules and Regulations]
[Pages 18987-18988]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-10542]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF DEFENSE
48 CFR Part 225
[DFARS Case 96-D309]
Defense Federal Acquisition Regulation Supplement; Pricing for
Sales of Defense Articles
AGENCY: Department of Defense (DoD).
ACTION: Interim rule with request for comment.
-----------------------------------------------------------------------
SUMMARY: The Director of Defense Procurement is amending the Defense
Federal Acquisition Regulation Supplement (DFARS) to implement
statutory provisions which require that foreign military sales wholly
paid for from funds made available on a nonrepayable basis shall be
priced on the same costing basis as is applicable to acquisitions of
like items purchased by DoD for its own use.
DATES: Effective date: April 30, 1996.
Comment date: Comments on the interim rule should be submitted in
writing to the address shown below on or before July 1, 1996, to be
considered in the formulation of the final rule.
ADDRESSES: Interested parties should submit written comments to:
Defense Acquisition Regulations Council, Attn: Ms. Amy Williams, PDUSD
(A&T) DP (DAR), IMD 3D139, 3062 Defense Pentagon, Washington, DC 20301-
3062. Telefax (703) 602-0350. Please cite DFARS Case 96-D309 in all
correspondence related to this issue.
FOR FURTHER INFORMATION CONTACT:
Ms. Amy Williams, (703) 602-0131.
SUPPLEMENTARY INFORMATION:
A. Background
This interim rule amends DFARS Subpart 225.73 to implement Section
531A of the Fiscal Year 1996 Foreign Operations, Export Financing, and
Related Programs Appropriations Act (Pub. L. 104-107), which amends
Section 22 of the Arms Export Control Act (22 U.S.C. 2762) to require
that foreign military sales of defense articles and defense services
wholly paid for from funds made available on a nonrepayable basis shall
be priced on the same costing basis as is applicable to like items
purchased by DoD for its own use.
B. Regulatory Flexibility Act
This 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 DFARS Subpart
225.73 already requires pricing of foreign military sales contracts
using the same general principles as are used in pricing other defense
contracts. The only significant change in this rule relates to the
allowability of independent research and development and bid and
proposal costs in accordance with the cost principle at FAR 31.205-18.
This change is not expected to significantly impact small entities, as
most contracts awarded to small entities are awarded on a competitive,
fixed-price basis and do not require application of the FAR cost
principles. An initial regulatory flexibility analysis has therefore
not been performed. Comments are invited from small businesses and
other interested parties. Comments from small entities concerning the
affected DFARS subpart will be considered in accordance with 5 U.S.C.
610. Such comments must be submitted separately and cite DFARS Case 96-
D309 in correspondence.
C. Paperwork Reduction Act
This rule does not impose any new information collection
requirements which require the approval of the Office of Management and
Budget under 44 U.S.C. 3501, et seq.
D. Determination to Issue an Interim Rule
A determination has been made under the authority of the Secretary
of Defense that compelling reasons exist to promulgate this interim
rule without prior opportunity for public comment. This action is
necessary to implement Section 531A of the Fiscal Year 1996 Foreign
Operations, Export Financing, and Related Programs Appropriations Act
(Pub. L. 104-107), which became effective on April 12, 1996. Comments
received in response to the publication of this interim rule will be
considered in formulating the final rule.
List of Subjects in 48 CFR Part 225
Government procurement.
Michele P. Peterson,
Executive Editor, Defense Acquisition Regulations Council.
Therefore, 48 CFR Part 225 is amended as follows:
PART 225--FOREIGN ACQUISITION
1. The authority citation for 48 CFR Part 225 continues to read as
follows:
Authority: 41 U.S.C. 421 and 48 CFR Chapter 1.
2. Section 225.7303 is amended by revising the title to read as
follows:
225.7303 Pricing acquisitions for foreign military sales (FMS).
3. Section 225.7303-2 is amended by revising the introductory text
of paragraphs (a) and (c) to read as follows:
225.7303-2 Cost of doing business with a foreign government or an
international organization.
(a) In pricing FMS contracts where non-U.S. Government prices as
described in 225.7303-1 do not exist, except as provided in 225.7303-5,
recognize the reasonable and allocable costs of doing business with a
foreign government or international organization, even though such
costs might not be recognized in the same amounts in pricing other
defense contracts. Examples of such costs include, but are not limited
to--
* * * * *
(c) The provisions of 10 U.S.C. 2372 do not apply to contracts for
foreign military sales. Therefore, the cost limitations on independent
research and development and bid and proposal (IR&D/B&P) costs in FAR
31.205-18 do not apply to such contracts, except as provided in
225.7303-5. The allowability of IR&D/B&P costs on contracts for foreign
military sales not wholly paid for from funds made available on a
nonrepayable basis shall
[[Page 18988]]
be limited to the contract's allocable share of the contractor's total
IR&D/B&P expenditures. In pricing contracts for such foreign military
sales--
* * * * *
4. Section 225.7303-5 is added to read as follows:
225.7303-5 Aquisitions wholly paid for from nonrepayable funds.
(a) In accordance with 22 U.S.C. 2762(d), foreign military sales
wholly paid for from funds made available on a nonrepayable basis shall
be priced on the same costing basis with regard to profit, overhead,
IR&D/B&P, and other costing elements, as is applicable to acquisitions
of like items purchased by DoD for its own use.
(b) Direct costs associated with meeting a foreign customer's
additional or unique requirements will be allowable under such
contracts. Indirect burden rates applicable to such direct costs shall
be permitted at the same rates applicable to acquisitions of like items
purchased by DoD for its own use.
(c) A U.S. defense contractor may not recover costs incurred to
implement its offset agreement with a foreign government or
international organization if the organization if the foreign military
sale Letter of Offer and Acceptance is financed with funds made
available on a nonrepayable basis.
[FR Doc. 96-10542 Filed 4-29-96; 8:45 am]
BILLING CODE 5000-04-M
Complete official Federal Register PDF
FR Doc. 96-10498 Automatic Vehicle Monitoring
[Federal Register Volume 61, Number 84 (Tuesday, April 30, 1996)]
[Rules and Regulations]
[Pages 18981-18987]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-10498]
-----------------------------------------------------------------------
FEDERAL COMMUNICATIONS COMMISSION
47 CFR Part 90
[PR Docket No. 93-61, FCC 96-115]
Automatic Vehicle Monitoring
AGENCY: Federal Communications Commission.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: This Order on Reconsideration resolves issues raised by
petitions for reconsideration of the Commission's Report and Order in
PR Docket No. 93-61, which established rules governing the licensing of
the Location and Monitoring Service (LMS) in the 902-928 MHz band.
Specifically, the Order on Reconsideration resolves issues regarding
existing LMS licensees that are being afforded grandfathered status.
These issues involve interference testing, accommodation of secondary
uses in the 902-928 MHz band, emission masks, frequency tolerance, type
acceptance and site relocation, as well as extension of the
construction deadline for grandfathered licensees to September 1, 1996.
The actions taken in the Order on Reconsideration are needed to provide
such grandfathered licensees with certainty as they construct their
systems.
EFFECTIVE DATES: This final rule is effective May 30, 1996, except that
Secs. 90.203(b)(7) and 90.363(d) became effective March 18, 1996.
FOR FURTHER INFORMATION CONTACT: Jane Hinckley Halprin, Wireless
Telecommunications Bureau, Commercial Wireless Division, (202) 418-
0620.
SUPPLEMENTARY INFORMATION: This is a synopsis of the Commission's Order
on Reconsideration in PR Docket No. 93-61, adopted March 18, 1996, and
released March 21, 1996. The complete text of this Order on
Reconsideration is available for inspection and copying during normal
business hours in the FCC Dockets Branch (Room 230), 1919 M Street,
N.W., Washington, D.C., and also may be purchased from the Commission's
copy contractor, ITS, Inc., 2100 M Street, N.W., Suite 140, Washington,
D.C., (202) 857-3800.
Synopsis of Order on Reconsideration
I. Introduction and Background
1. LMS encompasses both the Automatic Vehicle Monitoring (AVM)
service established in 1974 and future advanced transportation-related
services. Existing AVM systems were authorized in the 903-912 and 918-
927 MHz bands, as well as in several bands below 512 MHz. Existing LMS
systems in these bands generally fall into one of two broad
technological categories: multilateration systems and non-
multilateration systems. Multilateration systems use spread-spectrum
technology to locate vehicles (and other moving objects) with great
accuracy throughout a wide geographic area. Non-multilateration systems
typically use narrowband technology to transmit data to and from
vehicles passing through a particular location.
2. LMS systems, both multilateration and non-multilateration, and
Part 15 devices will play an important role in providing many valuable
services to the public in the future. In Report and Order, PR Docket
No. 93-61, 10 FCC Rcd 4695 (1995), 60 FR 15248 (March 23, 1995) (LMS
Report and Order), the Commission developed a spectrum plan that is
designed to accommodate these service providers' requirements to the
extent possible. Aspects of the spectrum plan include: (1) continuing
to permit secondary operations by unlicensed Part 15 devices across the
entire band; (2) providing a ``safe harbor'' in which Part 15 devices
may operate, along with a testing requirement to determine questions of
interference from multilateration systems; (3) authorizing additional
spectrum in the 902-928 MHz band in order to enable non-multilateration
LMS systems to operate on spectrum separate from multilateration
systems; and (4) permitting only one new multilateration provider in
each sub-band of spectrum allocated for multilateration operations.
3. In the LMS Report and Order, the Commission decided to stop
accepting applications for the operation of multilateration LMS systems
in the 904-912 and 918-926 MHz bands under our current rules as of
February 3, 1995. In addition, the Commission adopted certain
grandfathering provisions that allowed existing, operating
multilateration LMS systems until April 1, 1998, to complete the
transition to the rules adopted in the LMS Report and Order. These
grandfathering provisions were adopted to prevent any undue hardship on
existing, operating multilateration LMS systems. The Commission also
conferred grandfathered status on multilateration LMS licensees who had
not constructed their systems so that such licensees may construct and
operate their licensed stations under the rules adopted in the LMS
Report and Order. The Commission concluded, however, that such systems
must be constructed and
[[Page 18982]]
operational by April 1, 1996, and must comply with the rules adopted in
the LMS Report and Order by that date. The LMS Report and Order
directed existing licensees to file applications to modify their
licenses to reflect operations consistent with the new band plan for
multilateration systems.
4. In addition to adopting a new spectrum plan and grandfathering
provisions, the Commission resolved other technical issues in the LMS
Report and Order. The Commission established conditions under which
Part 15 operations would not be considered to cause interference to
multilateration licensees. It allowed multilateration licensees to
commence operations only after demonstrating efforts to minimize
interference with Part 15 operations.
5. In the Order on Reconsideration, the Commission clarifies its
decision in the LMS Report and Order regarding the treatment of
grandfathered LMS systems with respect to Part 15 interference testing.
In addition, it clarifies that the rule regarding non-interference by
Part 15 devices set out in Sec. 90.361 applies to grandfathered LMS
licensees that did not construct as of February 3, 1995, as well as
future LMS licensees. It also considers modification of various
technical rules, including emission mask specification, frequency
tolerance, and site relocation, and we clarify our rules regarding type
acceptance of LMS equipment. Any remaining issues raised in the
petitions for reconsideration will be addressed in a later Memorandum
Opinion and Order.
6. The Order on Reconsideration also extends the build-out deadline
for grandfathered LMS licensees by five months, to September 1, 1996.
It also notes that because the 902-928 MHz frequency band is shared
with federal government users, LMS operators are required to coordinate
with the Interdepartmental Radio Advisory Committee (IRAC) concerning
any proposed modifications to their systems. The Commission expresses
concern that if existing licensees must await the completion of such
frequency coordination process before commencing modifications to their
systems, licensees may not have sufficient time to complete their
system modifications by the build-out deadline. As a result, the
Commission concludes that these licensees should be permitted to begin
modifications to their systems provided they have initiated the
frequency coordination process with IRAC and on the condition that the
Commission's final approval of such modifications will be contingent
upon the successful completion of such frequency coordination.
7. In addition, On May 22, 1995, Southwestern Bell Mobile Systems
(SBMS) filed a request for waiver of Section 90.363 of the Commission's
Rules to grandfather SBMS applications that were pending as of the date
the LMS Report and Order was adopted. The Commission concludes that
pending LMS applications should not be eligible for grandfathering. The
Commission notes that its stated purpose in adopting grandfathering
provisions was ``[t]o ensure that our new licensing scheme does not
impose undue hardship on existing, operating multilateration [LMS]
systems,'' and to allow already-licensed systems the opportunity to
construct and operate pursuant to the LMS rules adopted in the LMS
Report and Order. LMS Report and Order, 10 FCC Rcd at 4728. The
Commission concludes that if some licensees are warehousing spectrum,
as alleged by SBMS, then they will likely not construct in the time
allotted so as to attain grandfathered status. That spectrum will then
be available for competitive bidding by all prospective licensees,
including SBMS if they so choose.
8. Further, the Commission notes the argument of SBMS that in the
SMR context, the Commission adopted a grandfathering provision awarding
certain secondary sites in the 900 MHz SMR service primary status so as
to entitle them to full interference protection and decided to
grandfather pending applications for these secondary sites, concluding
that this would promote service to the public, that the additional
amount of protected spectrum would be de minimis and that such action
would be equitable in light of processing delays. The Commission
distinguishes the SMR situation from the case of pending LMS
applications in that the 900 MHz SMR secondary sites were extensions of
primary sites that were already licensed and constructed, while the LMS
facilities at issue are unbuilt. Thus, it is questionable how service
to the public would be facilitated by extending grandfathered status to
sites that have not even been licensed, much less constructed.
Moreover, grant of the pending applications could materially alter the
LMS landscape by adding a number of additional sites and would thus not
be a de minimis change. Accordingly, the Commission declines SBMS's
request and clarifies that LMS applications filed prior to February 3,
1995, will not be eligible for grandfathering. SBMS also asks for an
extension of the construction deadline for its pending applications.
Because the Commission is not affording SBMS grandfathered status with
respect to these applications, this issue is moot. In addition, SBMS
seeks a waiver to permit relocation of grandfathered sites by more than
two kilometers and to add sites within a 75-mile radius. This same
suggestion was made by petitioners for reconsideration and, for the
reasons discussed infra, the Commission denies SBMS's request.
II. Discussion
A. Multilateration System Operations (Part 15 Testing)
9. In the LMS Report and Order, the Commission adopted a spectrum
band plan and established technical criteria for the operators of the
various systems designed to minimize the potential for interference and
provide a more conducive environment for sharing of the band by
disparate services. In an effort to ensure that the coexistence of the
various services in the band would be as successful as possible, the
Commission decided to condition the grant of each MTA multilateration
license on the licensee's ability to demonstrate through actual field
tests that their systems do not cause unacceptable levels of
interference to Part 15 devices.
10. On reconsideration, Part 15 users requested that grandfathered
multilateration LMS systems be required to demonstrate through testing
that their systems will not cause unacceptable interference to Part 15
devices. Further, some Part 15 petitioners suggested that the
Commission establish uniform guidelines for the testing of LMS systems
and the demonstration of non-interference to Part 15 devices. Some LMS
providers, on the other hand, argues that testing of LMS systems is not
necessary. Further, some parties contended that the testing requirement
violated the Administrative Procedure Act (APA) because testing
procedures were not contemplated in the Notice of Proposed Rule Making
in this proceeding, Notice of Proposed Rule Making, PR Docket No. 93-
61, 8 FCC Rcd 2502 (1993), 58 FR 21276 (April 20, 1993), and/or because
testing requirements materially alter the Part 15 rules, which was not
previously proposed.
11. In the Order on Reconsideration, the Commission clarifies that
as a condition of grandfathering, it will require all multilateration
LMS operators who did not construct stations prior to February 3, 1995,
to demonstrate through testing that their LMS systems will not cause
unacceptable interference to Part 15
[[Page 18983]]
devices. The Commission reiterates that multilateration licensees may
employ any one of a number of technical refinements, i.e., limiting
duty cycle, pulse duration power, etc., to facilitate band sharing and
minimize interference to Part 15 operations. Further, the Commission
seeks to ensure not only that Part 15 operators refrain from causing
harmful interference to LMS systems, but also that LMS systems are not
operated in such a manner as to degrade, obstruct or interrupt Part 15
devices to such an extent that Part 15 operations will be negatively
affected.
12. The Order on Reconsideration declines to establish specific
guidelines for Part 15 testing at this time. The Commission states that
it recognizes that LMS systems employ different methods to provide
location and monitoring that are constantly changing to keep up with
consumer demand. Moreover, the Part 15 industry has an even greater
array of technologies that fluctuate in response to the needs of the
public. It thus concludes that it would be inappropriate to apply
uniform testing parameters to those varied technologies, as no one
testing method would adequately address the needs of either LMS or Part
15 operations. Instead, the Commission believes that the more prudent
course of action would be for LMS and Part 15 operators to work closely
together to reach consensus on testing guidelines that satisfy their
respective requirements.
13. Further, the Commission does not agree that its adoption of the
testing requirement violated the APA. The Commission believes that the
testing requirement was a logical outgrowth of the Notice of Proposed
Rule Making in this proceeding, which sought comment on ways to
accommodate the various users of the 902-928 MHz band. Moreover, it
concludes that the rules adopted in the LMS Report and Order do not
modify our Part 15 rules by elevating the status of Part 15 providers,
as alleged by some petitioners. Part 15 operation remain secondary; the
testing requirement is merely an attempt to achieve the most efficient
coexistence possible among the various users of the band.
B. Accommodation of Secondary Users in the 902-928 MHz Band
14. The LMS Report and Order affirmed that unlicensed Part 15
devices in the 902-928 MHz band are secondary and, as in other bands,
may not cause harmful interference to and must accept interference from
all other operations in the band. To accommodate the concerns of Part
15 users about their secondary status in light of multilateration LMS
and our authorizing LMS to use the additional 8 MHz of the band (902-
903, 912-918 and 927-928 MHz), however, the Commission in the LMS
Report and Order adopted rules that describe a ``safe harbor'' within
which a Part 15 operation would be deemed not to cause interference to
a multilateration LMS system.
15. On reconsideration, many petitioners agreed that a safe harbor
provision is necessary to provide Part 15 technologies protection
against claims of interference from existing LMS licensees. On the
other hand, most LMS petitioners argued that they should be able to
rebut any presumption of non-interference by Part 15 operators. If not,
they argued, a large class of Part 15 devices will be immune from
complaints of interference to multilateration licensees. They also
contended that such a result would be contrary to the secondary status
of Part 15 devices.
16. In the Order on Reconsideration, the Commission clarifies that
if Part 15 devices operate within the ``safe harbor'' provision they
will be deemed not to cause harmful interference to LMS operators. In
addition, this provision applies to all LMS licensees, including
existing and grandfathered licensees. The Commission notes that in the
LMS Report and Order, it stated that a definition of what shall
constitute harmful interference from amateur operations or unlicensed
Part 15 devices to multilateration LMS systems would promote the
cooperative use of the 902-928 MHz band. It also noted that this ``safe
harbor'' approach would promote effective use of the 902-928 MHz band
by the various services through establishing the parameters under which
such devices may operate without risk of receiving complaints of
interference from service providers with a higher allocation status.
Based on the technical diversity of the numerous existing LMS systems
and the multiplicity of Part 15 devices that eventually will be placed
in operation, the Commission concluded in the LMS Report and Order that
some interference problems would remain unresolved. As a result, the
Commission determined that by providing multilateration LMS system
operators a means of recourse by way of complaint to the Commission
only when a Part 15 device is not operating in the ``safe harbor,'' the
vast majority of equipment and services would be able to operate
successfully in this band. The Commission concludes in the Order on
Reconsideration that although the multilateration LMS system operators
will not be able to file a complaint with the Commission where the Part
15 user has satisfied the ``safe harbor'' provisions, the Commission
encourages LMS operators to resolve the interference by modifying their
systems or by obtaining the voluntary cooperation of the Part 15 user.
The Commission disagrees that such a result is inconsistent with the
secondary status of Part 15 devices under our Rules and believes that
its approach will assure the efficient and equitable use of the 902-928
MHz band.
C. Technical Issues
1. Emission Mask Specification
In the LMS Report and Order, the Commission required that
licensees' emissions be attenuated by at least 55 + 10 log(P) dB at the
edges of the specified LMS subbands. The band edges for multilateration
systems where emissions must be attenuated are 904, 909.75, 919.75,
921.75, 927.50, 927.75 and 928 MHz. If the 919.75-921.75 and 921.75-
927.25 MHz subbands were aggregated by a single licensee, the emission
mask limitations at the band edges at 921.75 and 927.50 MHz may be
ignored. The band edges for non-multilateration systems where emissions
must be attenuated are 902, 904, 909.75 and 921.75 MHz.
18. On reconsideration, a group of LMS providers contended that the
emission mask adopted in the LMS Report and Order is flawed. They
propose a modification of the emission mask specification that they
believe should not inhibit the operation of non-multilateration
systems, and the emission levels outside of the multilateration LMS
sub-bands would be below the field strength levels permitted under Part
15 of the Commission's Rules for operation within the 902-928 MHz band.
The proposed emission mask specification is as follows:
For LMS wideband emissions, operating in the 902-928 MHz band,
in any 100 kHz band, the center frequency of which is removed from
the center of authorized sub-band(s) by more than 50 percent up to
and including 250 percent of the authorized bandwidth: The mean
power of emissions shall be attenuated below the maximum permitted
output power, as specified by the following equation but in no case
less than 31dB:
A=16+0.4 (P-50)+10logB (attenuation greater than 66dB is not
required)
Where:
A=attenuation (in decibels) below the maximum permitted output power
level
P=percent removed from the center of the authorized sub-band(s)
B=authorized bandwidth in megahertz
19. On the other hand, CellNet, a Part 15 operator, objected to the
relaxation of the emission mask specification,
[[Page 18984]]
contending that the potential for interference to Part 15 devices will
be increased if the emission mask requirements are relaxed. Hughes
contended that the attenuation used in the formula proposed by the LMS
Providers would be insufficient to protect adequately against
interference in the portion of the spectrum band set aside for non-
multilateration systems. Thus, Hughes proposed a variation of the LMS
multilateration parties' formula that requires greater attenuation. The
Part 15 Coalition contended that there is no justification for relaxing
the emission mask standard. TIA opposed the justification used by the
LMS Providers to modify the emission mask specification. TIA pointed
out that the LMS Providers' proposal is very similar to Sections
21.106(a)(2) and 94.71(c)(2) of our rules, which specify emission
limits for the Domestic Public Fixed Radio Services and Private
Operational Fixed Microwave Service, respectively. Further, TIA
contended that in fixed services, the emission is but one of several
ways to prevent interference, while in mobile services emission masks
and power limits are the primary forms of interference control. It
contended that while it may be appropriate to base the limits of LMS
wideband emissions on the limits that apply to high-speed digital
microwave transmissions, it is not reasonable that the LMS
specification should be less strict than the fixed microwave
specification.
20. In the Order on Reconsideration, the Commission finds that the
LMS providers have shown that the single emission mask adopted in the
LMS Report and Order to cover all LMS operations in the 902-928 MHz
band is not appropriate for multilateration LMS systems. It notes that
the LMS providers stated that none of their various multilateration
systems, either existing or proposed, can comply with the existing mask
and still achieve a commercially marketable level of locating accuracy.
Additionally, the Commission states that it is persuaded by the LMS
providers that an emission mask similar to the one applicable to
narrowband PCS channels is more appropriate for narrowband forward link
equipment operating in the spectrum between 927.250 MHz and 928 MHz.
21. Therefore, the Commission states that it will not apply the
existing mask to equipment used for wideband multilateration links,
either forward or reverse, in the three subbands 904-909.75 MHz,
921.75-927.25 MHz and 919.75-921.75 MHz, or to equipment used for
narrowband forward links in the spectrum between 927.25 and 928 MHz.
Instead, it will adopt two additional emission masks, both essentially
the same as proposed by the LMS providers, that will apply to this
equipment. All other equipment to operate in the LMS will remain
subject to the emission mask adopted in the Report and Order.
22. Although these new emission masks are less stringent than the
one adopted in the Report and Order, they do require a greater
attenuation of out-of-band emissions than was considered to be required
for multilateration systems operating under the interim rules. The
Commission states its belief that these masks are adequate to prevent
interference to non-multilateration systems. The Commission indicates
that while TIA is correct that these new masks are less stringent than
those for fixed microwave links, it does not agree with TIA that the
masks for LMS multilateration systems must necessarily be more strict
than for fixed microwave links. These two services are very different
and the expectations of potential interference must also be
considerably different--one is a highly coordinated fixed microwave
service in exclusively allocated spectrum and the other is a mobile
multilateration system operating in spectrum shared with a multitude of
other users. Also, the Commission states that it is not persuaded that
the refinement suggested by Hughes (increasing the slope of the
wideband mask) is necessary to prevent interference, and that adopting
it might unnecessarily preclude the use of some technologies or favor
one type of system over another.
2. Frequency Tolerance
23. In the LMS Report and Order, the Commission adopted a frequency
tolerance of 0.00025 percent (2.5 parts per million (ppm)) for both
multilateration and non-multilateration systems. It noted that tighter
frequency tolerances were justified to help reduce the potential for
interference to systems operating on adjacent frequencies.
24. On reconsideration, Hughes, TI/MFS, and AMTECH requested that
the Commission relax the frequency tolerance. Hughes argued that the
0.00025 percent frequency tolerance is overly restrictive for non-
multilateration systems. It contended that a frequency tolerance of 2.5
ppm does not add significantly to existing means of avoiding
interference between non-multilateration systems within designated
subbands. Hughes submitted that since non-multilateration systems
operate over relatively short ranges, the instances of coverage overlap
between facilities on adjacent channels will be rare.
25. Hughes further alleged that the present frequency tolerance
level would necessitate a significant and expensive design modification
for their Vehicle to Roadside Communications (VRC) system readers. In
addition, they contended that equipment changes required to conform
their VRC mobile transponders to the present frequency tolerance level
would be economically prohibitive. If the Commission decides to
maintain the present frequency tolerance level for non-multilateration
systems, Hughes requested that the Commission apply the frequency
tolerance level only to the reader transmitters and not to the mobile
transponders, which are designed to transmit with extremely low power
and only while passing in close proximity to a reader.
26. According to TI/MFS there are no current LMS non-
multilateration systems in operation that conform to the 2.5 ppm
frequency tolerance. They noted that most of the non-multilateration
technology operates at frequency tolerance levels no greater than 50
ppm. TI/MFS stated its belief that the imposition of the present
frequency tolerance level will have the negative effect of decreasing
both available technology and potential players in the market.
27. In response to the concerns raised by the non-multilateration
system operators, the Commission in the Order on Reconsideration
imposes the present frequency tolerance level of 2.5 ppm on high power
fixed reader transmitters operating near the band edges, but not on
mobile transponders or hand-held portable readers. The Commission is
persuaded that the significant cost of tightening the frequency
tolerance for mobile transponders and hand-held readers could severely
raise the cost of the devices beyond the realm of economic feasibility.
The Commission is not changing the tolerance requirement for other non-
multilateration LMS systems or for multilateration LMS systems.
3. Type Acceptance
28. In the LMS Report and Order, the Commission determined that the
mobile nature of most LMS transmitters and the new advanced technology
that will be employed by this equipment justified strict regulatory
oversight of having equipment type accepted rather than continuing to
use the notification procedure. Therefore, it decided that all LMS
equipment imported or marketed after April 1, 1996, including the
``transmitting tags'' used in certain non-
[[Page 18985]]
multilateration systems, must be type accepted for use under Part 90.
If, however, these units met the requirements under Part 15, they may
have been authorized under that part and do not need to be type
accepted.
29. On reconsideration, the LMS providers requested that for
systems constructed after February 3, 1995, that the type acceptance
requirement for multilateration LMS be extended from the current date
of April 1, 1996, until 12 months after any rule on reconsideration
concerning the emission mask (the ``1996 Effective Date''). They also
requested that all LMS transmitters imported or manufactured
domestically prior to the 1996 Effective Date be exempt from type
acceptance regardless of whether they are used before or after the 1996
Effective Date. In addition, they asked the Commission to clarify that
LMS providers may indefinitely continue to use equipment deployed prior
to the 1996 Effective Date provided that it is not marketed after that
date (whether the deadline is April 1, 1996 or a later date), unless
the equipment is first type accepted.
30. The LMS providers further requested that for systems
constructed before February 3, 1995, the installation of non-type
accepted multilateration LMS transmitters imported or manufactured
domestically on or before the 1996 Effective Date should be permitted
through April 1, 1998. They urged that such equipment need not be type-
accepted at any time unless such a step is necessary in order to
resolve interference problems that cannot otherwise be accommodated,
but that such equipment must comply with the emission mask requirements
by April 1, 1998. In addition, for systems constructed and placed into
operation before February 3, 1995, the LMS providers would mandate that
transmitters imported or manufactured after the 1996 Effective Date
must be type accepted. Similarly, AMTECH requests that the Commission
delay the type-acceptance date at least until 12 months after final
technical requirements have been adopted.
31. In the Order on Reconsideration, the Commission states its
belief that the type acceptance requirements it adopted in the LMS
Report and Order are necessary to ensure efficient deployment of LMS to
the public without causing significant interference. The Commission
provides that it recognizes the concern of multilateration LMS
operators that they may experience difficulty in meeting the
construction deadline if they must comply with type acceptance
requirements. To alleviate this concern, the Commission's Office of
Engineering and Technology has committed to process type acceptance
applications within 40 days of receipt. Further, the Commission notes
that it has extended the construction deadline. The Commission
therefore concludes that compliance with these type acceptance
requirements should not impede a licensee's efforts to meet the build-
out deadline. It also notes that constructed multilateration LMS
systems must also meet type acceptance requirements after September 1,
1996.
32. The Commission further notes that non-multilateration systems
contain a substantial amount of embedded equipment with numerous users,
particularly state and local governments. Thus, non-multilateration
system operators will be able to continue operation of current
equipment until replacement is needed. However, if non-multilateration
system operators decide either to build new systems or replace existing
equipment on or after September 1, 1996, the Commission states, the new
equipment must comply with type acceptance by April 1, 1998.
4. Site Relocation
33. In the LMS Report and Order, the Commission allowed LMS
licensees to modify their applications to comply with the new band
plan, and stated that an alternate site must be within two kilometers
(km) of the site specified in the original license. On reconsideration,
the LMS providers contended that the two kilometer restriction is
unworkable due to the upcoming April 1, 1996, deadline for preserving
grandfathered status. They argued that competition for wireless
facilities has caused many sites to become unavailable or unsuitable
for LMS use. They also noted that site surveys and negotiations are
time-consuming and in many cases replacements within the 2 km radius
either do not exist or are unavailable. Thus, the LMS providers
proposed that the Commission instead allow replacement sites within a
ten-mile radius.
34. The Commission declines to modify the site relocation
restriction in the Order on Reconsideration. It notes that the Third
Report and Order in GN Docket No. 93-252 utilized two kilometers as the
benchmark for determining whether an application for a site change of a
CMRS facility is to be treated as a modification application or an
``initial'' application for the purpose of determining eligibility for
competitive bidding procedures. Implementation of Sections 3(n) and 332
of the Communications Act--Regulatory Treatment of Mobile Services,
Third Report and Order, GN Docket No. 93-252, 9 FCC Rcd 7988, 59 FR
59945 (Nov. 21, 1994) (CMRS Third Report and Order). The Commission
concludes that the LMS providers have failed to demonstrate adequately
that a different benchmark should apply in the LMS context and that it
will continue to place a 2 km restriction on replacement sites for LMS
systems.
III. Procedural Matters and Ordering Clauses
35. The Final Regulatory Flexibility Analysis, as required by
Section 604 of the Regulatory Flexibility Act of 1980, 5 U.S.C.
Sec. 604 is as follows:
36. Need and Purpose of this Action: The rules adopted herein will
enhance use of the 902-928 MHz band for location and monitoring
systems. The new rules create a more stable environment for LMS system
licensees and provides much needed flexibility for operators of such
systems.
37. Issues Raised in Response to the Initial Regulatory Flexibility
Analysis: There were no comments submitted in response to the Initial
Regulatory Flexibility Analysis.
38. Significant Alternatives Considered and Rejected: All
significant alternatives regarding grandfathering issues are discussed
in this Order on Reconsideration. Other issues raised on
reconsideration will be addressed in a forthcoming Memorandum Opinion
and Order.
39. It is ordered that, pursuant to the authority of Sections 4(i),
302, 303(r), and 332(a)(2) of the Communications Act of 1934, as
amended, 47 U.S.C. Secs. 154(i), 302, 303(r), and 332(a), the rule
changes specified below are adopted.
40. It is further ordered that the rule changes set forth below
will become effective May 30, 1996, except for Secs. 90.203(b)(7) and
90.363(d). Sections 90.203(b)(7) and 90.363(d) were effective March 18,
1996.1
---------------------------------------------------------------------------
\1\ Sections 90.203(b)(7) and 90.363(d) extend the type
acceptance and construction deadlines, respectively, from April 1,
1996, to September 1, 1996. As such, these rules relieve a
restriction and are not subject to the 30 days' notice requirement
of the Administrative Procedure Act (APA). See 5 U.S.C. 553(d)(1).
Moreover, the Commission finds good cause to make these rules
effective on less than 30 days' notice to prevent the former type
acceptance and construction deadline of April 1, 1996, from taking
effect. See 5 U.S.C. 553(d)(3).
---------------------------------------------------------------------------
41. It is further ordered that the petitions for reconsideration
filed by the parties listed in the attachment below are granted to the
extent discussed herein, and denied to the extent discussed herein.
Those issues not resolved by this Order on
[[Page 18986]]
Reconsideration will addressed in a future Memorandum Opinion and
Order.
List of Subjects in 47 CFR Part 90
Radio.
Federal Communications Commission.
William F. Caton,
Acting Secretary.
Rule Changes
Part 90 of Chapter I of Title 47 of the Code of Federal Regulations
is amended as follows:
PART 90--PRIVATE LAND MOBILE RADIO SERVICES
1. The authority citation for Part 90 continues to read as follows:
Authority: Secs. 4, 303, 48 Stat. 1066, 1082, as amended; 47
U.S.C. 154, 303, and 332, unless otherwise noted.
2. Section 90.203 is amended by revising paragraph (b)(7) to read
as follows:
Sec. 90.203 Type acceptance required.
* * * * *
(b) * * *
(7) Transmitters imported and marketed prior to September 1, 1996
for use by LMS systems.
* * * * *
3. Section 90.210 is amended by revising paragraph (k) to read as
follows:
Sec. 90.210 Emission masks.
* * * * *
(k) Emission Mask K. (1) Wideband multilateration transmitters. For
transmitters authorized under Subpart M to provide forward or reverse
links in a multilateration system in the subbands 904-909.75 MHz,
921.75-927.25 MHz and 919.75-921.75 MHz, and which transmit an emission
occupying more than 50 kHz bandwidth: in any 100 kHz band, the center
frequency of which is removed from the center of authorized sub-band(s)
by more than 50 percent of the authorized bandwidth, the power of
emissions shall be attenuated below the transmitter output power, as
specified by the following equation, but in no case less than 31 dB:
A=16+0.4 (D-50)+10 log B (attenuation greater than 66 dB is not
required)
Where:
A=attenuation (in decibels) below the maximum permitted output power
level
D=displacement of the center frequency of the measurement bandwidth
from the center frequency of the authorized sub-band, expressed as a
percentage of the authorized bandwidth B
B=authorized bandwidth in megahertz.
(2) Narrowband forward link transmitters. For LMS multilateration
narrowband forward link transmitters operating in the 927.25-928 MHz
frequency band the power of any emission shall be attenuated below the
transmitter output power (P) in accordance with following schedule:
On any frequency outside the authorized sub-band and removed from
the edge of the authorized sub-band by a displacement frequency
(fd in kHz): at least 116 log ((fd+10)/6.1) dB or 50 + 10 log
(P) dB or 70 dB, whichever is the lesser attenuation.
(3) Other transmitters. For all other transmitters authorized under
Subpart M, the peak power of any emission shall be attenuated below the
power of the highest emission contained within the authorized channel
bandwidth in accordance with the following schedule:
(i) On any frequency within the authorized bandwidth: Zero dB;
(ii) On any frequency outside of the authorized bandwidth:
55+10log(P) dB where (P) is the highest emission (watts) of the
transmitter inside the authorized bandwidth.
(4) The resolution bandwidth of the instrumentation used to measure
the emission power shall be 100 kHz, except that, in regard to
paragraph (2) of this section, a minimum spectrum analyzer resolution
bandwidth of 300 Hz shall be used for measurement center frequencies
within 1 MHz of the edge of the authorized subband. If a video filter
is used, its bandwidth shall not be less than the resolution bandwidth.
(5) Emission power shall be measured in peak values.
4. Section 90.213 is amended by revising the entry for the 902-928
MHz band and adding footnote 13 to the table in paragraph (a) to read
as follows:
Sec. 90.213 Frequency stability.
(a) * * *
Minimum Frequency Stability
[Parts per million (ppm)]
------------------------------------------------------------------------
Mobile stations
Fixed and -------------------------
Frequency range (MHz) base Over 2W 2W or less
stations output output
power power
------------------------------------------------------------------------
* * * * *
* *
902-928 \13\..................... 2.5 2.5 2.5
* * * * *
* *
------------------------------------------------------------------------
\13\ Fixed non-multilateration transmitters operating within 40 kHz from
the band edge, intermittently operated hand-held readers, and mobile
transponders are not subject to frequency tolerance restrictions.
* * * * *
5. Section 90.363 is amended by revising paragraph (d) to read as
follows:
Sec. 90.363 Grandfathering provisions for existing AVM Licensees.
* * * * *
(d) Multilateration AVM licensees for stations that were not
constructed and placed in operation on or before February 3, 1995 must
construct their LMS systems and place them in operation on the spectrum
identified in their LMS system license on or before September 1, 1996,
or their licenses will cancel automatically (see Section 90.155 (e)).
Also, these licenses will cancel automatically on July 1, 1996 unless
timely modification applications are filed on or before this date (see
paragraph (a) of this section).
* * * * *
Attachment--Petitions for Reconsideration
Note: This attachment will not be published in the Code of
Federal Regulations.
1. Ad Hoc Gas Distribution Utilities Coalition (Ad Hoc Gas)
2. AirTouch Teletrac (Teletrac)
[[Page 18987]]
3. The American Radio Relay League, Inc. (ARRL)
4. AMTECH Corporation (AMTECH)
5. CellNet Data Systems, Inc. (CellNet)
6. Connectivity for Learning Coalition
7. Hughes Transportation Management Systems (Hughes)
8. Intelligent Transportation Society of America (ITSA)
9. Metricom, Inc. and Southern California Edison Company (Metricom/
SCE)
10. MobileVision, L.P. (MobileVision)
11. The New Jersey Highway Authority, the New Jersey Turnpike
Authority, the New York State Thruway Authority, the Pennsylvania
Turnpike Commission, the Metropolitan Transportation Authority
Bridges and Tunnels, the Port Authority of New York and New Jersey,
the South Jersey Transportation Authority and the Delaware River
Port Authority (``the Interagency Group'').
12. The Part 15 Coalition (Part 15 Coalition)
13. Pinpoint Communications (Pinpoint)
14. Rand McNally & Company (Rand McNally)
15. Safetran Systems Corporation (Safetran)
16. Southwestern Bell Mobile Systems, Inc. (SBMS)
17. Texas Instruments, Inc. and MFS Network Technologies, Inc. (TI/
MFS)
18. Uniplex Corporation (Uniplex)
19. UTC
20. Wireless Transactions Corporation (Wireless Transactions)
[FR Doc. 96-10498 Filed 4-29-96; 8:45 am]
BILLING CODE 6712-01-P
Complete official Federal Register PDF
FR Doc. 96-10467 Office of the Secretary; Environmental Review Procedures for Entities Assuming HUD Environmental Responsibilities
[Federal Register Volume 61, Number 84 (Tuesday, April 30, 1996)]
[Rules and Regulations]
[Pages 19120-19132]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-10467]
[[Page 19119]]
_______________________________________________________________________
Part II
Department of Housing and Urban Development
_______________________________________________________________________
24 CFR Part 58
Office of the Secretary; Environmental Review Procedures for Entities
Assuming HUD Environmental Responsibilities; Final Rule
Federal Register / Vol. 61, No. 84 / Tuesday, April 30, 1996 / Rules
and Regulations
[[Page 19120]]
DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT
24 CFR Part 58
[Docket No. FR-3514-F-04]
RIN 2501-AB67
Office of the Secretary; Environmental Review Procedures for
Entities Assuming HUD Environmental Responsibilities
AGENCY: Office of the Secretary, HUD.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: This rule makes final two rules, one interim and one proposed,
which amended the existing environmental regulations in 24 CFR part 58,
governing entities that assume HUD responsibilities, by making the
environmental review procedures consistent under the various programs
to which these regulations apply. This final rule takes into
consideration the public comments received on both rules, and also
makes streamlining and editorial changes to the existing environmental
regulations governing entities that assume HUD responsibilities.
EFFECTIVE DATE: This rule becomes effective May 30, 1996, except for
Sec. 58.1(b)(6)(i) and Sec. 58.2(a)(5)(v)(A), which pertain to public
housing development and modernization programs. These sections will
become effective on October 14, 1996, unless the Department publishes a
document in the Federal Register that specifies a different effective
date.
FOR FURTHER INFORMATION CONTACT: Richard H. Broun, Director, Office of
Environment and Energy, Room 7240, Department of Housing and Urban
Development, 451 Seventh Street, S.W., Washington, DC 20410, telephone
(202) 708-2894. For telephone communication, contact Fred Regetz,
Environmental Review Division at (202) 708-1201. Hearing or speech-
impaired individuals may call the Federal Information Relay Service
number at 1-800-877-TTY (1-800-877-8339) and refer to (202) 708-1201.
SUPPLEMENTARY INFORMATION:
I. Background
This final rule revises and restates the procedures for recipients
of HUD assistance and other responsible entities in applicable HUD
programs to carry out environmental reviews in accordance with the
National Environmental Policy Act of 1969 (42 U.S.C. 4321-4347)
(``NEPA''), the NEPA implementing regulations of the Council on
Environmental Quality (CEQ), and other NEPA related federal laws. This
rule makes final two rules, one interim rule and one proposed rule,
which amended 24 CFR part 58. The interim rule was published on March
13, 1995 (60 FR 13518), and the proposed rule was published on
September 25, 1995 (60 FR 49466). This final rule takes into
consideration the public comments received on both rules.
Applicable HUD programs under 24 CFR part 58 include any program in
which specific statutory authority allows the environmental review
responsibilities to be assumed by responsible entities. Currently,
applicable HUD programs, and therefore those covered by part 58, only
include: (1) Title I Community Development Block Grant Programs, (2)
the Rental Rehabilitation Program and the Housing Development Grant
Program, (3) the HOME programs under the Cranston-Gonzalez National
Affordable Housing Act (NAHA), (4) the homeless programs authorized by
Title IV of the Stewart B. McKinney Homeless Assistance Act, (5) Grants
to States and units of general local government for reduction and
abatement of lead-based paint, (6) Indian Housing and most Section 8
programs under Title I of the United States Housing Act of 1937, (7)
Special projects appropriated under an appropriation Act of HUD, (8)
the FHA Multifamily Housing Finance Agency Pilot Program under section
542(c) of the Housing and Community Development Act of 1992, and (9)
the Self-Help Homeownership Opportunity Program under section 11 of the
Housing Opportunity Program Extension Act of 1996.
The interim and proposed rules did not refer to the last program
cited above, the Self-Help Homeownership Opportunity Program, because
the Housing Opportunity Program Extension Act was approved on March 28,
1996, after those rules were published. However, section 11(m) of that
Act provides that a grant under that program shall be considered to be
funds for a special project for purposes of section 305(c) of the
Multifamily Housing Property Disposition Reform Act of 1994, which
authorized the provisions in the current interim rule providing for
States and units of general local government to assume environmental
responsibilities for special projects under item (7) above.
Accordingly, grants under the new Self-Help Homeownership Opportunity
Program are already subject to the part 58 procedures, by being
considered special project funds. The final rule adds specific
references to the new program in order to provide a complete list of
programs currently subject to part 58.
II. Discussion of Public Comments on the March 13, 1995 Interim Rule
The Department received two comments on the March 13, 1995 interim
rule--one from a State housing development authority and one from a
national organization of State housing agencies.
Both commenters requested, with respect to the FHA Multifamily
Housing Finance Agency Pilot Program in particular, that the rule
clarify that State housing finance agencies (HFAs) may assume
environmental responsibilities. The Department has not changed the
final rule in response to these comments. Section 542(c)(9) of the
Housing and Community Development Act of 1992, as amended, provides
that the Secretary of HUD may provide for agreements to endorse
mortgages for insurance ``upon the request of qualified housing finance
agencies * * *, if the State or unit of general local government, as
designated by the Secretary in accordance with regulations, assumes''
environmental responsibilities.
However, the Department agrees that a State HFA may assume the
responsibility for environmental reviews on behalf of the State if the
HFA is an agency of the State government and is given authority to do
so by the State. If an official of the State HFA will act as the
Certifying Officer for the State, section 542 (c) requires that the
official must have the authority to certify, among other things, that
he or she ``is authorized and consents on behalf of the State * * * and
himself or herself'' to accept Federal court jurisdiction for
enforcement of the environmental responsibilities (emphasis added). The
Certifying Officer's responsibilities are set out in Sec. 58.13 of the
rule, which indicates that he or she must represent the responsible
entity, e.g., the State, rather than merely the State HFA.
Even where the State's Certifying Officer is outside the HFA, the
HFA may contribute information or prepare a draft environmental
assessment for the State, but the Certifying Officer must evaluate this
work and take responsibility for the review in accordance with 40 CFR
1506.5 of the regulations of the Council on Environmental Quality.
One of the commenters, citing statements in Secs. 58.4(b) and 58.10
of the interim rule that responsible entities ``shall'' or ``must''
assume environmental review responsibilities, requested that the final
rule clarify that
[[Page 19121]]
the assumption of environmental responsibilities is voluntary. The
Department agrees that assumption of environmental responsibilities by
non-recipient recipient responsible entities is voluntary. However, the
Department has concluded that no change in the rule is necessary on
this point. The cited language (which is similar in the final rule)
must be read in conjunction with Sec. 58.11(d) of the interim and final
rules. Section 58.11(d) indicates that if a responsible entity, other
than a recipient, objects to performing an environmental review, or if
HUD may designate another responsible entity to perform the review or
may perform the review itself.
III. Discussion of Public Comments on the September 25, 1995 Proposed
Rule
The Department received 11 comments on the September 25, 1995
proposed rule. The Department received four from local governments,
three from county governments, two from State housing agencies, and two
from special interest groups. As a result of these, the Department has
made certain changes to the proposed rule which are incorporated into
today's final rule. The following discussion summarizes and provides
HUD responses to those comments. Every comment was reviewed and
considered, although all comments may not be specifically addressed in
this preamble.
One city urged HUD to conduct a detailed federalism analysis in
accordance with Executive Order 12612 on Federalism before taking any
further action on this proposed rule. The charge is made that the
proposed rule would constitute an unfunded mandate on local governments
by transferring to States and local governments various environmental
functions previously performed by HUD. This final rule does not change
any requirements that were not in effect or put in effect by the
interim rule, published in the Federal Register on March 13, 1995 (60
FR 13518) that became effective on April 12, 1995.
The second issue raised by this city was that the tenant-based
Section 8 Existing Housing Program should be exempt from all
environmental review requirements. Section 58.35(b)(1) makes all
tenant-based rental assistance essentially exempt, except for
extraordinary circumstances in which a categorically excluded activity
may have a significant environmental effect.
A second city requested that Sec. 58.34(a)(2) be more declarative
with respect to environmental review requirements for payment of
principal and/or interest to the Federal government. A change in
Sec. 58.34(a) was made to preserve and make more generic the exemption
for payments of principal and interest that is in the interim rule.
A third city suggested that the final rule should make changes that
would allow local communities more latitude in applying section 106 of
the National Historic Preservation Act and applicable regulations in 36
CFR part 800. The Department does not have the authority to effect
changes in the procedures of the State Historic Preservation Officer
(SHPO) or to allow local communities more autonomy in determining which
resources are historically significant.
A fourth city made a number of suggestions to be more specific and/
or carry over some specific language in the interim rule into this
final rule. Some clarifications have been made in Sec. 58.35 of the
final rule.
One county housing agency wanted more clarification about what
would be considered ``adequate local news media'' when disseminating
information to the public. Adequate local news media would be
considered to be at least a newspaper of general circulation in the
affected community. A change has also been made in Sec. 58.21 to
clarify that when there is no publication of Notices, the time periods
start when there is a mailing and posting of a Finding of No
Significant Impact (FONSI) or the Notice of Intent to Request Release
of Funds (NOI/RROF). In addition, this county wanted a definition of
``an individual action'' in reference to the categorical exclusion of
one- to four-family dwellings. Some clarifications have been made to
Sec. 58.35 to reflect current practices with respect to categorical
exclusions.
A second county agency felt there was a contradiction in the
requirement for the responsible entity to address in the Environmental
Review Record (ERR) its compliance with Sec. 58.6 while Sec. 58.34 of
the proposed rule stated that the responsible entity does not have to
comply with the environmental requirements of this part in the case of
exempt activities. The requirements of Sec. 58.6 must be complied with
and the responsible entity is required to address these requirements
where applicable. These requirements apply to exempt activities, when
there is no requirement for an environmental certification by the
certifying officer that indicates that all environmental requirements
have been met. A change has been made in Sec. 58.34 to remove this
contradiction.
A third county agency suggested that the Housing Opportunities for
Persons With AIDS (HOPWA) program should be reviewed under part 58
because HOPWA projects are often funded jointly with CDBG. HUD has no
authority to assign this responsibility to local governments. However,
part 50 and part 58 reviews should not be done in such a manner that
there is duplication. If a review has already been made of a jointly
funded proposal, the prior review can be referenced in subsequent
reviews. The county agency suggested additions to Sec. 58.2 that would
define in more detail ``financial services'' and when a decrease in
unit density would require an environmental review.
The Department feels that these terms are adequately defined in
Secs. 58.34(a)(2) and 58.35(a) and that further detail would not be
appropriate. The county agency also raised a question about the
proposed deletion of the reference to Section 108 loans from
Sec. 58.34(a) of the interim rule. The intent of this rule is to make
requirements more generic and not be program specific. In response to
comments, there is no change in the exempt classification of the
repayment of Section 108 loans to the Federal government and the
comment is addressed generically in Sec. 58.34(a)(11). This county
suggested that changes be made in Sec. 58.47 to address a concern about
when there is a need to re-evaluate an environmental finding. Changes
have been made in Sec. 58.47 to expand the context when a change in
conditions or a change in funding would require a re-evaluation.
One State housing agency requested that Sec. 58.35(b)(5) be
expanded to include homeownership assistance for new housing that is
planned but may or may not yet be built. In response to this comment,
the final rule expands this exclusion to cover assistance to homebuyers
for units under construction as well as existing housing. However,
housing that is not yet under construction cannot be covered by this
exclusion because Sec. 58.53(b) does not require compliance with the
environmental laws and authorities listed in Sec. 58.5. Assistance to
purchase housing yet to be constructed, on a limited scale, as
identified in Sec. 58.35(a)(4), can be determined to be categorically
excluded, but it cannot be exempt from the requirements of Sec. 58.5.
A second State agency suggested that environmental reviews
conducted by other entities on co-funded projects should be used
whenever possible. This final rule encourages combining reviews
conducted by other entities for jointly funded projects.
A national county association wanted to know what was meant by
``broader review'' in Sec. 58.15 on Tiering. The tiering concept is
explained very well in
[[Page 19122]]
the NEPA regulations of the Council on Environmental Quality but
focuses on tiering in EIS situations. This final rule encourages the
use of the tiering concept in non-EIS situations. Tiering, for HUD
purposes, allows responsible entities that have assumed Federal
environmental responsibilities to complete an environmental review and
obtain a release of funds from HUD before the specific properties to be
treated have been identified. Once the properties have been identified,
the responsible entity must comply with environmental laws and
authorities that could not be satisfied until the properties were
identified. The responsible entity may use any available environmental
information. Compliance with section 106 of the National Historic
Preservation Act would normally occur when the properties to be treated
have been identified.
Another commenter requested that the proposed change to Sec. 58.22
prohibiting recipients from committing local (non-HUD) funds before the
approval of RROF be dropped in favor of the language in the present
interim rule. This suggestion has not been adopted, since the language
of proposed Sec. 58.22 better reflects the intent of the Council on
Environmental Quality regulation.
The Department also received a comment on the Home Investment
Partnership Program interim rule published on July 12, 1995 (60 FR
36020) that is relevant to this rule. The comment objected to the
requirement contained in the Home environmental guidelines, and also
contained in proposed Sec. 58.22, that options on property entered into
before completion of the environmental review be refundable, since
refundability is not generally a provision for refundable options in
favor of options being limited to a nominal portion of the purchase
price.
IV. Other Matters
Environmental Impact
A Finding of No Significant Impact (FONSI) with respect to the
environment was made in connection with development of the September
25, 1995 proposed rule in accordance with HUD regulations in 24 CFR
Part 50 which implement Section 102(2)(C) of the National Environmental
Policy Act (NEPA). Since the changes made to the proposed rule in this
final rule do not change the impact on the environment, the original
Finding is still valid. The original Finding is available for public
inspection during regular business hours in the Office of the General
Counsel, Rules Docket Clerk, at the above address.
Executive Order 12612, Federalism
The General Counsel, as the Designated Official under section 6(a)
of Executive order 12612, Federalism, has determined that the policies
contained in this rule will not have substantial direct effects on
States or their political subdivisions, or the relationship between the
Federal government and the States, or on the distribution of power and
responsibilities among the various levels of government. As a result,
the rule is not subject to review under the order. Specifically, this
final rule modifies environmental requirements for recipients of HUD
assistance and other entities that assume environmental review
responsibilities for activities and projects where specific statutory
authority exists to assign the environmental review responsibilities to
the recipients or to allow States and local governments to assume those
responsibilities on behalf of certain recipients.
Executive Order 12606, The Family
The General Counsel, as the Designated Official under Executive
Order, The Family, has determined that this final rule will not have
potential for significant impact on family formation, maintenance, and
general well-being, and, thus, is not subject to review under the
order. No significant change in existing HUD policies or programs will
result from promulgation of this final rule, as those policies and
programs relate to family concerns.
Regulatory Flexibility Act. The Secretary, in accordance with the
Regulatory Flexibility Act (5 U.S.C. 605(b)) has reviewed and approved
this rule, and in so doing certifies that this final rule will not have
a significant economic impact on a substantial number of small
entities. This final rule streamlines part 58 and carries out the
statutory mandate of providing for the assumption of environmental
review responsibilities by certain recipients of HUD assistance or
other entities in accordance with section 104(g) of the Housing and
Community Development Act of 1974 and similar statutory provisions.
List of Subjects in 24 CFR Part 58
Environmental protection, Community Development Block Grants,
Environmental impact statements, Grant programs--housing and community
development, Reporting and recordkeeping requirements.
Accordingly, 24 CFR part 58 is revised as follows:
PART 58--ENVIRONMENTAL REVIEW PROCEDURES FOR ENTITIES ASSUMING HUD
ENVIRONMENTAL RESPONSIBILITIES
Subpart A--Purpose, Legal Authority, Federal Laws and Authorities
Sec.
58.1 Purpose, scope and applicability.
58.2 Terms, abbreviations and definitions.
58.4 Assumption authority.
58.5 Related Federal laws and authorities.
58.6 Other requirements.
Subpart B--General Policy: Responsibilities of Responsible Entities
58.10 Basic environmental responsibility.
58.11 Legal capacity and performance.
58.12 Technical and administrative capacity.
58.13 Responsibilities of the certifying officer.
58.14 Interaction with State, Federal and non-Federal entities.
58.15 Tiering.
58.17 Historic Preservation requirements for prior section 17
grants.
58.18 Responsibilities of States Assuming HUD Responsibilities.
Subpart C--General Policy: Environmental Review Procedures
58.21 Time periods.
58.22 Limitations on activities pending clearance.
58.23 Financial assistance for environmental review.
Subpart D--Environmental Review Process: Documentation, Range of
Activities, Project Aggregation and Classification
58.30 Environmental Review Process.
58.32 Project aggregation.
58.33 Emergencies.
58.34 Exempt activities.
58.35 Categorical exclusions.
58.36 Environmental assessments.
58.37 Environmental impact statement determinations.
58.38 Environmental review record.
Subpart E--Environmental Review Process: Environmental Assessments
(EA's)
58.40 Preparing the environmental assessment.
58.43 Dissemination and/or publication of the findings of no
significant impact.
58.45 Public comment periods.
58.46 Time delays for exceptional circumstances.
58.47 Re-evaluation of environmental assessments and other
environmental findings.
Subpart F--Environmental Review Process: Environmental Impact Statement
Determinations
58.52 Adoption of other agencies' EISs.
58.53 Use of prior environmental impact statements.
Subpart G--Environmental Review Process: Procedures for Draft, Final
and Supplemental Environmental Impact Statements
58.55 Notice of intent to prepare an EIS.
58.56 Scoping process.
[[Page 19123]]
58.57 Lead agency designation.
58.59 Public hearings and meetings.
58.60 Preparation and filing of environmental impact statements.
Subpart H--Release of Funds for Particular Projects
58.70 Notice of intent to request release of funds.
58.71 Request for release of funds and certification.
58.72 HUD or State actions on RROFs and certifications.
58.73 Objections to release of funds.
58.74 Time for objecting.
58.75 Permissible bases for objections.
58.76 Procedure for objections.
58.77 Effect of approval of certification.
Authority: 12 U.S.C. 1707 note; 42 U.S.C. 1437o(i)(1) and (2),
1437x, 3535(d), 3547, 4332, 4852, 5304(g), 11402, and 12838; E.O.
11514, 3 CFR, 1966-1970, Comp., p. 902, as amended by E.O. 11991, 3
CFR, 1977 Comp., p.123.
Subpart A--Purpose, Legal Authority, Federal Laws and Authorities
Sec. 58.1 Purpose, scope and applicability.
(a) Purpose. This part provides instructions and guidance to
recipients of HUD assistance and other responsible entities for
conducting an environmental review for a particular project or activity
and for obtaining approval of a Request for Release of Funds.
(b) Applicability. This part applies to activities and projects
where specific statutory authority exists for recipients or other
responsible entities to assume environmental responsibilities. Programs
and activities subject to this part include:
(1) Community Development Block Grant programs authorized by Title
I of the Housing and Community Development Act of 1974, in accordance
with section 104(g) (42 U.S.C. 5304(g));
(2) The Rental Rehabilitation program and Housing Development Grant
program authorized by section 17 of the United States Housing Act of
1937, in accordance with sections 17(i)(1) and 17(i)(2) with respect to
projects and programs for which binding commitments have been entered
into prior to October 1, 1991, since section 17 was repealed by the
Cranston-Gonzalez National Affordable Housing Act enacted November 28,
1990 (42 U.S.C. 1437o(i)(1) and (2));
(3) Grants to States and units of general local government under
the Emergency Shelter Grant Program, Supportive Housing program (and
its predecessors, the Supportive Housing Demonstration program (both
Transitional Housing and Permanent Housing for Homeless Persons with
Disabilities) and Supplemental Assistance for Facilities to Assist the
Homeless), Shelter Plus Care program, Safe Havens for Homeless
Individuals Demonstration Program, and Rural Homeless Housing
Assistance, authorized by Title IV of the Stewart B. McKinney Homeless
Assistance Act, in accordance with section 443 (42 U.S.C. 11402);
(4) The HOME Investment Partnerships Program authorized by Title II
of the Cranston-Gonzalez National Affordable Housing Act (NAHA), in
accordance with section 288 (42 U.S.C. 12838);
(5) Grants to States and units of general local government for
abatement of lead-based paint and lead dust hazards pursuant to Title
II of the Departments of Veterans Affairs and Housing and Urban
Development and Independent Agencies Appropriations Act, 1992, and
grants for lead-based paint hazard reduction under section 1011 of the
Housing and Community Development Act of 1992, in accordance with
section 1011(o) (42 U.S.C. 4852(o));
(6)(i) Public Housing Programs under Title I of the United States
Housing Act of 1937, in accordance with section 26 (42 U.S.C. 1437x);
(ii) Indian Housing Programs under Title I of the United States
Housing Act of 1937, including the Mutual Help Program, in accordance
with section 26 (42 U.S.C. 1437x); and
(iii) Assistance administered by a public housing agency or Indian
housing authority under section 8 of the United States Housing Act of
1937, except for assistance provided under 24 CFR part 886, in
accordance with section 26 (42 U.S.C. 1437x);
(7) Special Projects appropriated under an appropriation act for
HUD, such as special projects under the heading ``Annual Contributions
for Assisted Housing'' in Title II of various Departments of Veterans
Affairs and Housing and Urban Development, and Independent Agencies
Appropriations Acts, in accordance with section 305(c) of the
Multifamily Housing Property Disposition Reform Act of 1994 (42 U.S.C.
3547);
(8) The FHA Multifamily Housing Finance Agency Pilot Program under
section 542(c) of the Housing and Community Development Act of 1992, in
accordance with section 542(c)(9)(12 U.S.C. 1707 note); and
(9) The Self-Help Homeownership Opportunity Program under section
11 of the Housing Opportunity Program Extension Act of 1996 (Pub. L.
104-120, 110 Stat. 834), in accordance with section 11(m)).
Sec. 58.2 Terms, abbreviations and definitions.
(a) For the purposes of this part, the following definitions
supplement the uniform terminology provided in 40 CFR part 1508:
(1) Activity means an action that a grantee or recipient puts forth
as part of an assisted project, regardless of whether its cost is to be
borne by the HUD assistance or is an eligible expense under the HUD
assistance program.
(2) Certifying Officer means the official who is authorized to
execute the Request for Release of Funds and Certification and has the
legal capacity to carry out the responsibilities of Sec. 58.13.
(3) Extraordinary Circumstances means a situation in which an
environmental assessment (EA) or environmental impact statement (EIS)
is not normally required, but due to unusual conditions, an EA or EIS
is appropriate. Indicators of unusual conditions are:
(i) Actions that are unique or without precedent;
(ii) Actions that are substantially similar to those that normally
require an EIS;
(iii) Actions that are likely to alter existing HUD policy or HUD
mandates; or
(iv) Actions that, due to unusual physical conditions on the site
or in the vicinity, have the potential for a significant impact on the
environment or in which the environment could have a significant impact
on users of the facility.
(4) Project means an activity, or a group of integrally related
activities, designed by the recipient to accomplish, in whole or in
part, a specific objective.
(5) Recipient means any of the following entities, when they are
eligible recipients or grantees under a program listed in Sec. 58.1(b):
(i) A State that does not distribute HUD assistance under the
program to a unit of general local government;
(ii) Guam, the Northern Mariana Islands, the Virgin Islands,
American Samoa, and Palau;
(iii) A unit of general local government;
(iv) An Indian tribe;
(v) (A) With respect to Public Housing Programs under
Sec. 58.1(b)(6)(i), a public housing agency;
(B) With respect to Indian Housing Programs under
Sec. 58.1(b)(6)(ii), an Indian housing authority;
(C) With respect to section 8 assistance under
Sec. 58.1(b)(6)(iii), a public housing agency or Indian housing
authority;
(vi) Any direct grantee of HUD for a special project under
Sec. 58.1(b)(7);
[[Page 19124]]
(vii) With respect to the FHA Multifamily Housing Finance Agency
Pilot Program under Sec. 58.1(b)(8), a qualified housing finance
agency; and
(viii) With respect to the Self-Help Homeownership Opportunity
Program under Sec. 58.1(b)(9), any direct grantee of HUD.
(6) Release of funds. In the case of the FHA Multifamily Housing
Finance Agency Pilot Program under Sec. 58.1(b)(8), Release of Funds,
as used in this part, refers to HUD issuance of a firm approval letter,
and Request for Release of Funds refers to a recipient's request for a
firm approval letter.
(7) Responsible Entity means:
(i) With respect to environmental responsibilities under programs
listed in Sec. 58.1(b)(1) through (5), a recipient under the program.
(ii) With respect to environmental responsibilities under the
programs listed in Sec. 58.1(b)(6) through (9), a State, unit of
general local government, Indian tribe or Alaska native village, when
it is the recipient under the program. Non-recipient responsible
entities are designated as follows:
(A) For qualified housing finance agencies, the State or a unit of
general local government, Indian tribe or Alaska native village whose
jurisdiction contains the project site;
(B) For public housing agencies, the unit of general local
government within which the project is located that exercises land use
responsibility, or if HUD determines this infeasible, the county, or if
HUD determines this infeasible, the State;
(C) For non-profit organizations and other entities, the unit of
general local government, Indian tribe or Alaska native village within
which the project is located that exercises land use responsibility, or
if HUD determines this infeasible, the county, or if HUD determines
this infeasible, the State;
(D) For Indian housing authorities (outside of Alaska), the Indian
tribe in whose jurisdiction the project is located, or if the project
is located outside of a reservation, the Indian tribe that established
the authority; and
(E) For Indian housing authorities in Alaska, the Alaska native
village in whose community the project is located, or if HUD determines
this infeasible, a unit of general local government or the State, as
designated by HUD.
(8) Unit Density refers to a change in the number of dwelling
units. Where a threshold is identified as a percentage change in
density that triggers review requirements, no distinction is made
between an increase or a decrease in density.
(9) Tiering means the evaluation of an action or an activity at
various points in the development process as a proposal or event
becomes ripe for an Environment Assessment or Review.
(10) Vacant Building means a habitable structure that has been
vacant for more than one year.
(b) The following abbreviations are used throughout this part:
(1) CDBG--Community Development Block Grant;
(2) CEQ--Council on Environmental Quality;
(3) EA--Environmental Assessment;
(4) EIS--Environmental Impact Statement;
(5) EPA--Environmental Protection Agency;
(6) ERR--Environmental Review Record;
(7) FONSI--Finding of No Significant Impact;
(8) HUD--Department of Housing and Urban Development;
(9) NAHA--Cranston-Gonzalez National Affordable Housing Act of 1990;
(10) NEPA--National Environmental Policy Act of 1969, as amended;
(11) NOI/EIS--Notice of Intent to Prepare an EIS;
(12) NOI/RROF--Notice of Intent to Request Release of Funds;
(13) ROD--Record of Decision;
(14) ROF--Release of Funds; and
(15) RROF--Request for Release of Funds.
Sec. 58.4 Assumption authority.
(a) Assumption authority for responsible entities: General.
Responsible entities shall assume the responsibility for environmental
review, decision-making, and action that would otherwise apply to HUD
under NEPA and other provisions of law that further the purposes of
NEPA, as specified in Sec. 58.5. Responsible entities that receive
assistance directly from HUD assume these responsibilities by execution
of a grant agreement with HUD and/or a legally binding document such as
the certification contained on HUD Form 7015.15, certifying to the
assumption of environmental responsibilities. When a State distributes
funds to a responsible entity, the State must provide for appropriate
procedures by which these responsible entities will evidence their
assumption of environmental responsibilities.
(b) Particular responsibilities of the States. (1) States are
recipients for purposes of directly undertaking a State project and
must assume the environmental review responsibilities for the State's
activities and those of any non-governmental entity that may
participate in the project. In this case, the State must submit the
certification and RROF to HUD for approval.
(2) States must exercise HUD's responsibilities in accordance with
Sec. 58.18, with respect to approval of a unit of local government's
environmental certification and RROF for a HUD assisted project funded
through the State, except for projects assisted by Section 17 Rental
Rehabilitation assistance and Housing Development Grants. Approval by
the State of a unit of local government's certification and RROF
satisfies the Secretary's responsibilities under NEPA and the related
laws cited in Sec. 58.5.
(3) For section 17 Rental Rehabilitation projects and Housing
Development Grants, the State agency shall meet the responsibilities
set forth in Sec. 58.18. However, for section 17 projects, the State
lacks authority to approve RROFs and therefore must forward to the
responsible HUD Field Office the local recipient's certification and
RROF, any objections to the release of funds submitted by another
party, and the State's recommendation as to whether HUD should approve
the certification and the RROF.
Sec. 58.5 Related Federal laws and authorities.
In accordance with the provisions of law cited in Sec. 58.1(b), the
responsible entity must assume responsibilities for environmental
review, decision-making and action that would apply to HUD under the
following specified laws and authorities. The responsible entity must
certify that it has complied with the requirements that would apply to
HUD under these laws and authorities and must consider the criteria,
standards, policies and regulations of these laws and authorities.
(a) Historic properties. (1) The National Historic Preservation Act
of 1966 as amended (16 U.S.C. 470 et seq.), particularly sections 106
and 110 (16 U.S.C. 470 and 470h-2), except as provided in Sec. 58.17
for Section 17 projects.
(2) Executive Order 11593, Protection and Enhancement of the
Cultural Environment, May 13, 1971 (36 FR 8921), 3 CFR 1971-1975 Comp.,
p. 559, particularly section 2(c).
(3) Federal historic preservation regulations as follows:
(i) 36 CFR part 800 with respect to HUD programs other than Urban
Development Action Grants (UDAG); and
(ii) 36 CFR part 801 with respect to UDAG.
(4) The Reservoir Salvage Act of 1960 as amended by the
Archeological and Historic Preservation Act of 1974 (16
[[Page 19125]]
U.S.C. 469 et seq.), particularly section 3 (16 U.S.C. 469a-1).
(b) Floodplain management and wetland protection. (1) Executive
Order 11988, Floodplain Management, May 24, 1977 (42 FR 26951), 3 CFR,
1977 Comp., p. 117, as interpreted in HUD regulations at 24 CFR part
55, particularly section 2(a) of the order (For an explanation of the
relationship between the decision-making process in 24 CFR part 55 and
this part, see Sec. 55.10 of this subtitle A.)
(2) Executive Order 11990, Protection of Wetlands, May 24, 1977 (42
FR 26961), 3 CFR, 1977 Comp., p. 121, particularly sections 2 and 5.
(c) Coastal Zone Management. The Coastal Zone Management Act of
1972 (16 U.S.C. 1451 et seq.), as amended, particularly section 307(c)
and (d) (16 U.S.C. 1456(c) and (d)).
(d) Sole source aquifers. (1) The Safe Drinking Water Act of 1974
(42 U.S.C. 201, 300(f) et seq., and 21 U.S.C. 349) as amended;
particularly section 1424(e)(42 U.S.C. 300h-3(e)).
(2) Sole Source Aquifers (Environmental Protection Agency--40 CFR
part 149).
(e) Endangered species. The Endangered Species Act of 1973 (16
U.S.C. 1531 et seq.) as amended, particularly section 7 (16 U.S.C.
1536).
(f) Wild and scenic rivers. The Wild and Scenic Rivers Act of 1968
(16 U.S.C. 1271 et seq.) as amended, particularly section 7(b) and (c)
(16 U.S.C. 1278(b) and (c)).
(g) Air quality. (1) The Clean Air Act (42 U.S.C. 7401 et. seq.) as
amended; particularly section 176(c) and (d) (42 U.S.C. 7506(c) and
(d)).
(2) Determining Conformity of Federal Actions to State or Federal
Implementation Plans (Environmental Protection Agency-- 40 CFR parts 6,
51, and 93).
(h) Farmlands protection. (1) Farmland Protection Policy Act of
1981 (7 U.S.C. 4201 et seq.) particularly sections 1540(b) and 1541 (7
U.S.C. 4201(b) and 4202).
(2) Farmland Protection Policy (Department of Agriculture--7 CFR
part 658).
(i) HUD environmental standards. Applicable criteria and standards
specified in HUD environmental regulations (24 CFR part 51) (other than
the runway clear zone and clear zone notification requirement in 24 CFR
51.303 (a)(3)) and HUD Notice 79-33, Policy Guidance to Address the
Problems Posed by Toxic Chemicals and Radioactive Materials, September
10, 1979).
(j) Environmental justice. Executive Order 12898--Federal Actions
to Address Environmental Justice in Minority Populations and Low-Income
Populations, February 11, 1994 (59 FR 7629), 3 CFR, 1994 Comp. p. 859.
Sec. 58.6 Other requirements.
In addition to the duties under the laws and authorities specified
in Sec. 58.5 for assumption by the responsible entity under the laws
cited in Sec. 58.1(b), the responsible entity must comply with the
following requirements. Applicability of the following requirements
does not trigger the certification and release of funds procedure under
this part or preclude exemption of an activity under Sec. 58.34(a)(11)
and/or the applicability of Sec. 58.35(b). However, the responsible
entity remains responsible for addressing the following requirements in
its ERR and meeting these requirements, where applicable, regardless of
whether the activity is exempt under Sec. 58.34 or categorically
excluded under Sec. 58.35(a) or (b).
(a)(1) Under the Flood Disaster Protection Act of 1973, as amended
(42 U.S.C. 4001-4128), Federal financial assistance for acquisition and
construction purposes (including rehabilitation) may not be used in an
area identified by the Federal Emergency Management Agency (FEMA) as
having special flood hazards, unless:
(i) The community in which the area is situated is participating in
the National Flood Insurance Program (see 44 CFR parts 59 through 79),
or less than one year has passed since the FEMA notification regarding
such hazards; and
(ii) Flood insurance protection is to be obtained as a condition of
the approval of financial assistance to the property owner.
(2) Where a recipient provides financial assistance for acquisition
or construction purposes (including rehabilitation) for property
located in an area identified by FEMA as having special flood hazards,
the responsible entity is responsible for assuring that flood insurance
under the National Flood Insurance Program is obtained and maintained.
(3) Paragraph (a) of this section does not apply to Federal formula
grants made to a State.
(b) Pursuant to the Coastal Barrier Resources Act, as amended by
the Coastal Barrier Improvement Act of 1990 (16 U.S.C. 3501), HUD
assistance may not be used for most activities proposed in the Coastal
Barrier Resources System.
(c) In all cases involving HUD assistance, subsidy, or insurance
for the purchase or sale of an existing property in a Runway Clear Zone
or Clear Zone, as defined in 24 CFR part 51, the responsible entity
shall advise the buyer that the property is in a runway clear zone or
clear zone, what the implications of such a location are, and that
there is a possibility that the property may, at a later date, be
acquired by the airport operator. The buyer must sign a statement
acknowledging receipt of this information.
Subpart B--General Policy: Responsibilities of Responsible Entities
Sec. 58.10 Basic environmental responsibility.
In accordance with the provisions of law cited in Sec. 58.1(b), the
responsible entity must assume the environmental responsibilities for
projects under programs cited in Sec. 58.1(b), and in doing so must
comply with the provisions of NEPA and the CEQ regulations contained in
40 CFR parts 1500 through 1508, including the requirements set forth in
this part. This includes responsibility for compliance with the
applicable provisions and requirements of the Federal laws and
authorities specified in Sec. 58.5. The provisions of the CEQ
regulations in 40 CFR parts 1500 through 1508 are applicable to this
part.
Sec. 58.11 Legal capacity and performance.
(a) A responsible entity which believes that it does not have the
legal capacity to carry out the environmental responsibilities required
by this part must contact the appropriate local HUD Office or the State
for further instructions. Determinations of legal capacity will be made
on a case-by-case basis.
(b) If a public housing, Indian housing, special project or self-
help homeownership opportunity recipient objects to the non-recipient
responsible entity conducting the environmental review on the basis of
performance, timing, or compatibility of objectives, HUD will review
the facts to determine who will perform the environmental review.
(c) At any time, HUD may reject the use of a responsible entity to
conduct the environmental review in a particular case on the basis of
performance, timing or compatibility of objectives, or in accordance
with Sec. 58.77(d)(1).
(d) If a responsible entity, other than a recipient, objects to
performing an environmental review, or if HUD determines that the
responsible entity should not perform the environmental review, HUD may
designate another responsible entity to conduct the review
[[Page 19126]]
in accordance with this part or may itself conduct the environmental
review in accordance with the provisions of 24 CFR part 50.
Sec. 58.12 Technical and administrative capacity.
The responsible entity must develop the technical and
administrative capability necessary to comply with 40 CFR parts 1500
through 1508 and the requirements of this part.
Sec. 58.13 Responsibilities of the certifying officer.
Under the terms of the certification required by Sec. 58.71, a
responsible entity's certifying officer is the ``responsible Federal
official'' as that term is used in section 102 of NEPA and in statutory
provisions cited in Sec. 58.1(b). The Certifying Officer is therefore
responsible for all the requirements of section 102 of NEPA and the
related provisions in 40 CFR parts 1500 through 1508, and 24 CFR part
58, including the related Federal authorities listed in Sec. 58.5. The
Certifying Officer must also:
(a) Represent the responsible entity and be subject to the
jurisdiction of the Federal courts. The Certifying Officer will not be
represented by the Department of Justice in court; and
(b) Ensure that the responsible entity reviews and comments on all
EISs prepared for Federal projects that may have an impact on the
recipient's program.
Sec. 58.14 Interaction with State, Federal and non-Federal entities.
A responsible entity shall consult, as appropriate, environmental
agencies, State, Federal and non-Federal entities and the public in the
preparation of an EIS, EA or other environmental reviews undertaken
under the related laws and authorities cited in Sec. 58.5 and
Sec. 58.6. The responsible entity must also cooperate with other
agencies to reduce duplication between NEPA and comparable
environmental review requirements of the State (see 40 CFR 1506.2(b)
and (c)). The responsible entity must prepare its EAs and EISs so that
they comply with the environmental review requirements of both Federal
and State laws unless otherwise specified or provided by law. State,
Federal and local agencies may participate or act in a joint lead or
cooperating agency capacity in the preparation of joint EISs (see 40
CFR 1501.5(b) and 1501.6). A single EIS may be prepared and adopted by
multiple users to the extent that the review addresses the relevant
environmental issues and there is a written agreement between the
cooperating agencies which sets forth the coordinated and overall
responsibilities.
Sec. 58.15 Tiering.
Responsible entities may tier their environmental reviews and
assessments to eliminate repetitive discussions of the same issues at
subsequent levels of review. Tiering is appropriate when there is a
requirement to evaluate a policy or proposal in the early stages of
development or when site-specific analysis or mitigation is not
currently feasible and a more narrow or focused analysis is better done
at a later date. The site specific review need only reference or
summarize the issues addressed in the broader review. The broader
review should identify and evaluate those issues ripe for decision and
exclude those issues not relevant to the policy, program or project
under consideration. The broader review should also establish the
policy, standard or process to be followed in the site specific review.
The Finding of No Significant Impact (FONSI) with respect to the
broader assessment shall include a summary of the assessment and
identify the significant issues to be considered in site specific
reviews. Subsequent site-specific reviews will not require notices or a
Request for Release of Funds unless the Certifying Officer determines
that there are unanticipated impacts or impacts not adequately
addressed in the prior review. A tiering approach can be used for
meeting environmental review requirements in areas designated for
special focus in local Consolidated Plans. Local and State Governments
are encouraged to use the Consolidated Plan process to facilitate
environmental reviews.
Sec. 58.17 Historic Preservation requirements for prior section 17
grants.
A recipient of a section 17 grant shall comply with the historic
preservation requirements of this part and existing grant agreements.
Sec. 58.18 Responsibilities of States Assuming HUD Responsibilities.
(a) States that elect to administer a HUD program shall ensure that
the program complies with the provisions of this part. The State must:
(1) Designate the State agency or agencies which will be
responsible for carrying out the requirements and administrative
responsibilities set forth in subpart H of this part and which will:
(i) Develop a monitoring and enforcement program for post-review
actions on environmental reviews and monitor compliance with any
environmental conditions included in the award.
(ii) Receive public notices, RROFs and certifications from
recipients pursuant to Secs. 58.70 and 58.71; accept objections from
the public and from other agencies (Sec. 58.73); and perform other
related responsibilities regarding releases of funds.
(2) Fulfill the State role in subpart H relative to the time period
set for the receipt and disposition of comments, objections and appeals
(if any) on particular projects.
(b) States administering section 17 Programs shall assume the
responsibilities set forth in this section for overseeing the State
recipient's performance and compliance with NEPA and related Federal
authorities as set forth in this part, including receiving RROFs and
environmental certifications for particular projects from State
recipients and objections from government agencies and the public in
accordance with the procedures contained in subpart H of this part. The
State shall forward to the responsible HUD Field Office the
environmental certification, the RROF and any objections received, and
shall recommend whether to approve or disapprove the certification and
RROF.
Subpart C--General Policy: Environmental Review Procedures
Sec. 58.21 Time periods.
All time periods in this part shall be counted in calendar days.
The first day of a time period begins at 12:01 a.m. local time on the
day following the publication or the mailing and posting date of the
notice which initiates the time period.
Sec. 58.22 Limitations on activities pending clearance.
(a) A recipient may not commit HUD assistance funds under a program
listed in Sec. 58.1(b) on an activity or project until HUD or the State
has approved the recipient's RROF and the related certification of the
responsible entity. In addition, until the RROF and related
certification has been approved, the recipient may not commit non-HUD
funds on an activity or project under a program listed in Sec. 58.1(b)
if the activity or project would have an adverse environmental impact
or limit the choice of reasonable alternatives. If an activity is
exempt under Sec. 58.34, or not subject to Sec. 58.5 under
Sec. 58.35(b), no RROF is required and a recipient may undertake the
activity immediately after the award of the assistance.
(b) An option agreement on a proposed site or property is allowable
prior to the completion of the environmental review if the option
[[Page 19127]]
agreement is subject to a determination by the recipient on the
desirability of the property for the project as a result of the
completion of the environmental review in accordance with this part and
the cost of the option is a nominal portion of the purchase price.
There is no constraint on the purchase of an option by third parties
that have not been selected for HUD funding, have no responsibility for
the environmental review and have no say in the approval or disapproval
of the project.
(c) Relocation. Funds may be committed for relocation assistance
before the approval of the RROF and related certification for the
project provided that the relocation assistance is required by 24 CFR
part 42.
Sec. 58.23 Financial assistance for environmental review.
The costs of environmental reviews, including costs incurred in
complying with any of the related laws and authorities cited in
Sec. 58.5 and Sec. 58.6, are eligible costs to the extent allowable
under the HUD assistance program regulations.
Subpart D--Environmental Review Process: Documentation, Range of
Activities, Project Aggregation and Classification
Sec. 58.30 Environmental Review Process.
(a) The environmental review process consists of all the actions
that a responsible entity must take to determine compliance with this
part. The environmental review process includes all the compliance
actions needed for other activities and projects that are not assisted
by HUD but are aggregated by the responsible entity in accordance with
Sec. 58.32.
(b) The environmental review process should begin as soon as a
recipient determines the projected use of HUD assistance.
Sec. 58.32 Project aggregation.
(a) A responsible entity must group together and evaluate as a
single project all individual activities which are related either on a
geographical or functional basis, or are logical parts of a composite
of contemplated actions.
(b) In deciding the most appropriate basis for aggregation when
evaluating activities under more than one program, the responsible
entity may choose: functional aggregation when a specific type of
activity (e.g., water improvements) is to take place in several
separate locales or jurisdictions; geographic aggregation when a mix of
dissimilar but related activities is to be concentrated in a fairly
specific project area (e.g., a combination of water, sewer and street
improvements and economic development activities); or a combination of
aggregation approaches, which, for various project locations, considers
the impacts arising from each functional activity and its
interrelationship with other activities.
(c) The purpose of project aggregation is to group together related
activities so that the responsible entity can:
(1) Address adequately and analyze, in a single environmental
review, the separate and combined impacts of activities that are
similar, connected and closely related, or that are dependent upon
other activities and actions. (See 40 CFR 1508.25(a)).
(2) Consider reasonable alternative courses of action.
(3) Schedule the activities to resolve conflicts or mitigate the
individual, combined and/or cumulative effects.
(4) Prescribe mitigation measures and safeguards including project
alternatives and modifications to individual activities.
(d) Multi-year project aggregation. (1) Release of funds. When a
recipient's planning and program development provide for activities to
be implemented over two or more years, the responsible entity's
environmental review should consider the relationship among all
component activities of the multi-year project regardless of the source
of funds and address and evaluate their cumulative environmental
effects. The estimated range of the aggregated activities and the
estimated cost of the total project must be listed and described by the
responsible entity in the environmental review and included in the
RROF. The release of funds will cover the entire project period.
(2) When one or more of the conditions described in Sec. 58.47
exists, the recipient or other responsible entity must re-evaluate the
environmental review.
Sec. 58.33 Emergencies.
(a) In the cases of emergency, disaster or imminent threat to
health and safety which warrant the taking of an action with
significant environmental impact, the provisions of 40 CFR 1506.11
shall apply.
(b) If funds are needed on an emergency basis and when adherence to
separate comment periods would prevent the giving of assistance, the
combined Notice of FONSI and the Notice of the Intent to Request
Release of Funds may be disseminated and/or published simultaneously
with the submission of the Request for Release of Funds (RROF). The
combined Notice of FONSI and NOI/ROF shall state that the funds are
needed on an immediate emergency basis due to a Presidentially declared
disaster and that the comment periods have been combined. The Notice
shall also invite commenters to submit their comments to both HUD and
the responsible entity issuing the notice to assure that these comments
will receive full consideration.
Sec. 58.34 Exempt activities.
(a) Except for the applicable requirements of Sec. 58.6, the
responsible entity does not have to comply with the requirements of
this part or undertake any environmental review, consultation or other
action under NEPA and the other provisions of law or authorities cited
in Sec. 58.5 for the activities exempt by this section or projects
consisting solely of the following exempt activities:
(1) Environmental and other studies, resource identification and
the development of plans and strategies;
(2) Information and financial services;
(3) Administrative and management activities;
(4) Public services that will not have a physical impact or result
in any physical changes, including but not limited to services
concerned with employment, crime prevention, child care, health, drug
abuse, education, counseling, energy conservation and welfare or
recreational needs;
(5) Inspections and testing of properties for hazards or defects;
(6) Purchase of insurance;
(7) Purchase of tools;
(8) Engineering or design costs;
(9) Technical assistance and training;
(10) Assistance for temporary or permanent improvements that do not
alter environmental conditions and are limited to protection, repair or
restoration activities necessary only to control or arrest the effects
from disasters, imminent threats or physical deterioration;
(11) Payment of principal and interest on loans made or obligations
guaranteed by HUD;
(12) Any of the categorical exclusions listed in Sec. 58.35(a)
provided that there are no circumstances which require compliance with
any other Federal laws and authorities cited in Sec. 58.5.
(b) A recipient does not have to submit an RROF and certification,
and no further approval from HUD or the State will be needed by the
recipient for the drawdown of funds to carry out exempt activities and
projects. However, the responsible entity must document in writing its
determination that each activity or project is exempt and meets the
conditions specified for such exemption under this section.
[[Page 19128]]
Sec. 58.35 Categorical exclusions.
Categorical exclusion refers to a category of activities for which
no environmental impact statement or environmental assessment and
finding of no significant impact under NEPA is required, except in
extraordinary circumstances (see Sec. 58.2(a)(3)) in which a normally
excluded activity may have a significant impact. Compliance with the
other applicable Federal environmental laws and authorities listed in
Sec. 58.5 is required for any categorical exclusion listed in paragraph
(a) of this section.
(a) Categorical exclusions subject to Sec. 58.5. The following
activities are categorically excluded under NEPA, but may be subject to
review under authorities listed in Sec. 58.5:
(1) Acquisition, repair, improvement, reconstruction, or
rehabilitation of public facilities and improvements (other than
buildings) when the facilities and improvements are in place and will
be retained in the same use without change in size or capacity of more
than 20 percent (e.g., replacement of water or sewer lines,
reconstruction of curbs and sidewalks, repaving of streets).
(2) Special projects directed to the removal of material and
architectural barriers that restrict the mobility of and accessibility
to elderly and handicapped persons.
(3) Rehabilitation of buildings and improvements when the following
conditions are met:
(i) In the case of multifamily residential buildings:
(A) Unit density is not changed more than 20 percent;
(B) The project does not involve changes in land use from
residential to non-residential; and
(C) The estimated cost of rehabilitation is less than 75 percent of
the total estimated cost of replacement after rehabilitation.
(ii) In the case of non-residential structures, including
commercial, industrial, and public buildings:
(A) The facilities and improvements are in place and will not be
changed in size or capacity by more than 20 percent; and
(B) The activity does not involve a change in land use, such as
from non-residential to residential, commercial to industrial, or from
one industrial use to another.
(4) An individual action on a one- to four-family dwelling or an
individual action on a project of five or more units developed on
scattered sites when the sites are more than 2,000 feet apart and there
are not more than four units on any one site.
(5) Acquisition or disposition of an existing structure or
acquisition of vacant land provided that the structure or land acquired
or disposed of will be retained for the same use.
(6) Combinations of the above activities.
(b) Categorical exclusions not subject to Sec. 58.5. The Department
has determined that the following categorically excluded activities
would not alter any conditions that would require a review or
compliance determination under the Federal laws and authorities cited
in Sec. 58.5. When the following kinds of activities are undertaken,
the responsible entity does not have to publish a NOI/RROF or execute a
certification and the recipient does not have to submit a RROF to HUD
(or the State) except in the circumstances described in paragraph (c)
of this section. Following the award of the assistance, no further
approval from HUD or the State will be needed with respect to
environmental requirements, except where paragraph (c) of this section
applies. The recipient remains responsible for carrying out any
applicable requirements under Sec. 58.6.
(1) Tenant-based rental assistance;
(2) Supportive services including, but not limited to, health care,
housing services, permanent housing placement, day care, nutritional
services, short-term payments for rent/mortgage/utility costs, and
assistance in gaining access to local, State, and Federal government
benefits and services;
(3) Operating costs including maintenance, security, operation,
utilities, furnishings, equipment, supplies, staff training and
recruitment and other incidental costs;
(4) Economic development activities, including but not limited to,
equipment purchase, inventory financing, interest subsidy, operating
expenses and similar costs not associated with construction or
expansion of existing operations;
(5) Activities to assist homeownership of existing ``or new
dwelling units not assisted with Federal funds'' including closing
costs and down payment assistance to home buyers, interest buydowns and
similar activities that result in the transfer of title to a property;
(6) Affordable housing pre-development costs including legal,
consulting, developer and other costs related to obtaining site
options, project financing, administrative costs and fees for loan
commitments, zoning approvals, and other related activities which do
not have a physical impact.
(c) Circumstances requiring NEPA review. If a responsible entity
determines that an activity or project identified in paragraph (a) or
(b) of this section, because of extraordinary circumstances and
conditions at or affecting the location of the activity or project, may
have a significant environmental effect, it shall comply with all the
requirements of this part.
(d) The Environmental Review Record (ERR) must contain a well
organized written record of the process and determinations made under
this section.
Sec. 58.36 Environmental assessments.
If a project is not exempt or categorically excluded under
Secs. 58.34 and 58.35, the responsible entity must prepare an EA in
accordance with subpart E of this part. If it is evident without
preparing an EA that an EIS is required under Sec. 58.37, the
responsible entity should proceed directly to an EIS.
Sec. 58.37 Environmental impact statement determinations.
(a) An EIS is required when the project is determined to have a
potentially significant impact on the human environment.
(b) An EIS is required under any of the following circumstances,
except as provided in paragraph (c) of this section:
(1) The project would provide a site or sites for, or result in the
construction of, hospitals or nursing homes containing a total of 2,500
or more beds.
(2) The project would remove, demolish, convert or substantially
rehabilitate 2,500 or more existing housing units (but not including
rehabilitation projects categorically excluded under Sec. 58.35), or
would result in the construction or installation of 2,500 or more
housing units, or would provide sites for 2,500 or more housing units.
(3) The project would provide enough additional water and sewer
capacity to support 2,500 or more additional housing units. The project
does not have to be specifically intended for residential use nor does
it have to be totally new construction. If the project is designed to
provide upgraded service to existing development as well as to serve
new development, only that portion of the increased capacity which is
intended to serve new development should be counted.
(c) If, on the basis of an EA, a responsible entity determines that
the thresholds in paragraph (b) of this section are the sole reason for
the EIS, the responsible entity may prepare a FONSI pursuant to 40 CFR
1501.4. In such cases, the FONSI must be made available for public
review for at least 30 days before the responsible entity
[[Page 19129]]
makes the final determination whether to prepare an EIS.
(d) Notwithstanding paragraphs (a) through (c) of this section, an
EIS is not required where Sec. 58.53 is applicable.
(e) Recommended EIS Format. The responsible entity must use the EIS
format recommended by the CEQ regulations (40 CFR 1502.10) unless a
determination is made on a particular project that there is a
compelling reason to do otherwise. In such a case, the EIS format must
meet the minimum requirements prescribed in 40 CFR 1502.10.
Sec. 58.38 Environmental review record.
The responsible entity must maintain a written record of the
environmental review undertaken under this part for each project. This
document will be designated the ``Environmental Review Record'' (ERR),
and shall be available for public review. The responsible entity must
use the current HUD-recommended formats or develop equivalent formats.
(a) ERR Documents. The ERR shall contain all the environmental
review documents, public notices and written determinations or
environmental findings required by this part as evidence of review,
decisionmaking and actions pertaining to a particular project of a
recipient. The document shall:
(1) Describe the project and the activities that the recipient has
determined to be part of the project;
(2) Evaluate the effects of the project or the activities on the
human environment;
(3) Document compliance with applicable statutes and authorities,
in particular those cited in Sec. 58.5 and 58.6; and
(4) Record the written determinations and other review findings
required by this part (e.g., exempt and categorically excluded projects
determinations, findings of no significant impact).
(b) Other documents and information. The ERR shall also contain
verifiable source documents and relevant base data used or cited in
EAs, EISs or other project review documents. These documents may be
incorporated by reference into the ERR provided that each source
document is identified and available for inspection by interested
parties. Proprietary material and special studies prepared for the
recipient that are not otherwise generally available for public review
shall not be incorporated by reference but shall be included in the
ERR.
Subpart E--Environmental Review Process: Environmental Assessments
(EA's)
Sec. 58.40 Preparing the environmental assessment.
The responsible entity may prepare the EA using the HUD recommended
format. In preparing an EA for a particular project, the responsible
entity must:
(a) Determine existing conditions and describe the character,
features and resources of the project area and its surroundings;
identify the trends that are likely to continue in the absence of the
project.
(b) Identify all potential environmental impacts, whether
beneficial or adverse, and the conditions that would change as a result
of the project.
(c) Identify, analyze and evaluate all impacts to determine the
significance of their effects on the human environment and whether the
project will require further compliance under related laws and
authorities cited in Sec. 58.5 and Sec. 58.6.
(d) Examine and recommend feasible ways in which the project or
external factors relating to the project could be modified in order to
eliminate or minimize adverse environmental impacts.
(e) Examine alternatives to the project itself, if appropriate,
including the alternative of no action.
(f) Complete all environmental review requirements necessary for
the project's compliance with applicable authorities cited in
Secs. 58.5 and 58.6.
(g) Based on steps set forth in paragraph (a) through (f) of this
section, make one of the following findings:
(1) A Finding of No Significant Impact (FONSI), in which the
responsible entity determines that the project is not an action that
will result in a significant impact on the quality of the human
environment. The responsible entity may then proceed to Sec. 58.43.
(2) A finding of significant impact, in which the project is deemed
to be an action which may significantly affect the quality of the human
environment. The responsible entity must then proceed with its
environmental review under subpart F or G of this part.
Sec. 58.43 Dissemination and/or publication of the findings of no
significant impact.
(a) If the responsible entity makes a finding of no significant
impact, it must prepare a FONSI notice, using the current HUD-
recommended format or an equivalent format. As a minimum, the
responsible entity must send the FONSI notice to individuals and groups
known to be interested in the activities, to the local news media, to
the appropriate tribal, local, State and Federal agencies; to the
Regional Offices of the Environmental Protection Agency having
jurisdiction and to the HUD Field Office (or the State where
applicable). The responsible entity may also publish the FONSI notice
in a newspaper of general circulation in the affected community. If the
notice is not published, it must also be prominently displayed in
public buildings, such as the local Post Office and within the project
area or in accordance with procedures established as part of the
citizen participation process.
(b) The responsible entity may disseminate or publish a FONSI
notice at the same time it disseminates or publishes the NOI/RROF
required by Sec. 58.70. If the notices are released as a combined
notice, the combined notice shall:
(1) Clearly indicate that it is intended to meet two separate
procedural requirements; and
(2) Advise the public to specify in their comments which ``notice''
their comments address.
(c) The responsible entity must consider the comments and make
modifications, if appropriate, in response to the comments, before it
completes its environmental certification and before the recipient
submits its RROF. If funds will be used in Presidentially declared
disaster areas, modifications resulting from public comment, if
appropriate, must be made before proceeding with the expenditure of
funds.
Sec. 58.45 Public comment periods.
(a) Notice of finding of no significant impact: 15 days from date
of publication or if no publication, 18 days from the date of mailing
and posting.
(b) Notice of intent to request release of funds: 7 days from date
of publication or if no publication, 10 days from date of mailing and
posting.
(c) Concurrent or combined notices: Same as FONSI notice.
Sec. 58.46 Time delays for exceptional circumstances.
The responsible entity must make the FONSI available for public
comments for 30 days before the recipient files the RROF when:
(a) There is a considerable interest or controversy concerning the
project;
(b) The proposed project is similar to other projects that normally
require the preparation of an EIS; or
(c) The project is unique and without precedent.
[[Page 19130]]
Sec. 58.47 Re-evaluation of environmental assessments and other
environmental findings.
(a) A responsible entity must re-evaluate its environmental
findings when:
(1) The recipient proposes substantial changes in the nature,
magnitude or extent of the project, including adding new activities not
anticipated in the original scope of the project;
(2) There are new circumstances and environmental conditions which
may affect the project or have a bearing on its impact, such as
concealed or unexpected conditions discovered during the implementation
of the project or activity which is proposed to be continued; or
(3) The recipient proposes the selection of an alternative not in
the original finding.
(b) The purpose of the responsible entity's re-evaluation is to
determine if the original findings are still valid. If the original
findings are still valid but the data or conditions upon which they
were based have changed, the responsible entity must amend the original
findings and update its ERR by including this re-evaluation and its
determination based on its findings. If the responsible entity
determines that the original findings are no longer valid, it must
prepare an EA or an EIS if its evaluation indicates potentially
significant impacts. Where the recipient is not the responsible entity,
the recipient must inform the responsible entity promptly of any
proposed substantial changes under paragraph (a)(1) of this section,
new circumstances or environmental conditions under paragraph (a)(2) of
this section, or any proposals to select a different alternative under
paragraph (a)(3) of this section, and must then permit the responsible
entity to re-evaluate the findings before proceeding.
Subpart F--Environmental Review Process: Environmental Impact
Statement Determinations
Sec. 58.52 Adoption of other agencies' EISs.
The responsible entity may adopt a draft or final EIS prepared by
another agency provided that the EIS was prepared in accordance with 40
CFR parts 1500 through 1508. If the responsible entity adopts an EIS
prepared by another
FR Doc. 96-10467 Office of the Secretary; Environmental Review Procedures for Entities Assuming HUD Environmental Responsibilities
agency, the procedure in 40 CFR 1506.3 shall be
followed. An adopted EIS may have to be revised and modified to adapt
it to the particular environmental conditions and circumstances of the
project if these are different from the project reviewed in the EIS. In
such cases the responsible entity must prepare, circulate, and file a
supplemental draft EIS in the manner prescribed in Sec. 58.60(d) and
otherwise comply with the clearance and time requirements of the EIS
process, except that scoping requirements under 40 CFR 1501.7 shall not
apply. The agency that prepared the original EIS should be informed
that the responsible entity intends to amend and adopt the EIS. The
responsible entity may adopt an EIS when it acts as a cooperating
agency in its preparation under 40 CFR 1506.3. The responsible entity
is not required to re-circulate or file the EIS, but must complete the
clearance process for the RROF. The decision to adopt an EIS shall be
made a part of the project ERR.
Sec. 58.53 Use of prior environmental impact statements.
Where any final EIS has been listed in the Federal Register for a
project pursuant to this part, or where an areawide or similar broad
scale final EIS has been issued and the EIS anticipated a subsequent
project requiring an environmental clearance, then no new EIS is
required for the subsequent project if all the following conditions are
met:
(a) The ERR contains a decision based on a finding pursuant to
Sec. 58.40 that the proposed project is not a new major Federal action
significantly affecting the quality of the human environment. The
decision shall include:
(1) References to the prior EIS and its evaluation of the
environmental factors affecting the proposed subsequent action subject
to NEPA;
(2) An evaluation of any environmental factors which may not have
been previously assessed, or which may have significantly changed;
(3) An analysis showing that the proposed project is consistent
with the location, use, and density assumptions for the site and with
the timing and capacity of the circulation, utility, and other
supporting infrastructure assumptions in the prior EIS;
(4) Documentation showing that where the previous EIS called for
mitigating measures or other corrective action, these are completed to
the extent reasonable given the current state of development.
(b) The prior final EIS has been filed within five (5) years, and
updated as follows:
(1) The EIS has been updated to reflect any significant revisions
made to the assumptions under which the original EIS was prepared;
(2) The EIS has been updated to reflect new environmental issues
and data or legislation and implementing regulations which may have
significant environmental impact on the project area covered by the
prior EIS.
(c) There is no litigation pending in connection with the prior
EIS, and no final judicial finding of inadequacy of the prior EIS has
been made.
Subpart G--Environmental Review Process: Procedures for Draft,
Final and Supplemental Environmental Impact Statements
Sec. 58.55 Notice of intent to prepare an EIS.
As soon as practicable after the responsible entity decides to
prepare an EIS, it must publish a NOI/EIS, using the HUD recommended
format and disseminate it in the same manner as required by 40 CFR
parts 1500 through 1508.
Sec. 58.56 Scoping process.
The determination on whether or not to hold a scoping meeting will
depend on the same circumstances and factors as for the holding of
public hearings under Sec. 58.59. The responsible entity must wait at
least 15 days after disseminating or publishing the NOI/EIS before
holding a scoping meeting.
Sec. 58.57 Lead agency designation.
If there are several agencies ready to assume the lead role, the
responsible entity must make its decision based on the criteria in 40
CFR 1501.5(c). If the responsible entity and a Federal agency are
unable to reach agreement, then the responsible entity must notify HUD
(or the State, where applicable). HUD (or the State) will assist in
obtaining a determination based on the procedure set forth in 40 CFR
1501.5(e).
Sec. 58.59 Public hearings and meetings.
(a) Factors to consider. In determining whether or not to hold
public hearings in accordance with 40 CFR 1506.6, the responsible
entity must consider the following factors:
(1) The magnitude of the project in terms of economic costs, the
geographic area involved, and the uniqueness or size of commitment of
resources involved.
(2) The degree of interest in or controversy concerning the
project.
(3) The complexity of the issues and the likelihood that
information will be presented at the hearing which will be of
assistance to the responsible entity.
(4) The extent to which public involvement has been achieved
through other means.
(b) Procedure. All public hearings must be preceded by a notice of
public hearing, which must be published in the local news media 15 days
before the hearing date. The Notice must:
[[Page 19131]]
(1) State the date, time, place, and purpose of the hearing or
meeting.
(2) Describe the project, its estimated costs, and the project
area.
(3) State that persons desiring to be heard on environmental issues
will be afforded the opportunity to be heard.
(4) State the responsible entity's name and address and the name
and address of its Certifying Officer.
(5) State what documents are available, where they can be obtained,
and any charges that may apply.
Sec. 58.60 Preparation and filing of environmental impact statements.
(a) The responsible entity must prepare the draft environmental
impact statement (DEIS) and the final environmental impact statements
(FEIS) using the current HUD recommended format or its equivalent.
(b) The responsible entity must file and distribute the (DEIS) and
the (FEIS) in the following manner:
(1) Five copies to EPA Headquarters;
(2) Five copies to EPA Regional Office;
(3) Copies made available in the responsible entity's and the
recipient's office;
(4) Copies or summaries made available to persons who request them;
and
(5) FEIS only--one copy to State, HUD Field Office, and HUD
Headquarters library.
(c) The responsible entity may request waivers from the time
requirements specified for the draft and final EIS as prescribed in 40
CFR 1506.6.
(d) When substantial changes are proposed in a project or when
significant new circumstances or information becomes available during
an environmental review, the recipient may prepare a supplemental EIS
as prescribed in 40 CFR 1502.9.
(e) The responsible entity must prepare a Record of Decision (ROD)
as prescribed in 40 CFR 1502.2.
Subpart H--Release of Funds for Particular Projects
Sec. 58.70 Notice of intent to request release of funds.
The NOI/RROF must be disseminated and/or published in the manner
prescribed by Sec. 58.43 and Sec. 58.45 before the certification is
signed by the responsible entity.
Sec. 58.71 Request for release of funds and certification.
(a) The RROF and certification shall be sent to the appropriate HUD
Field Office (or the State, if applicable), except as provided in
paragraph (b) of this section. This request shall be executed by the
Certifying Officer. The request shall describe the specific project and
activities covered by the request and contain the certification
required under the applicable statute cited in Sec. 58.1(b). The RROF
and certification must be in a form specified by HUD.
(b) When the responsible entity is conducting an environmental
review on behalf of a recipient, as provided for in Sec. 58.10, the
recipient must provide the responsible entity with all available
project and environmental information and refrain from undertaking any
physical activities or choice limiting actions until HUD (or the State,
if applicable) has approved its request for release of funds. The
certification form executed by the responsible entity's certifying
officer shall be sent to the recipient that is to receive the
assistance along with a description of any special environmental
conditions that must be adhered to in carrying out the project. The
recipient is to submit the RROF and the certification of the
responsible entity to HUD (or the State, if applicable) requesting the
release of funds. The recipient must agree to abide by the special
conditions, procedures and requirements of the environmental review,
and to advise the responsible entity of any proposed change in the
scope of the project or any change in environmental conditions.
(c) If the responsible entity determines that some of the
activities are exempt under applicable provisions of this part, the
responsible entity shall advise the recipient that it may commit funds
for these activities as soon as programmatic authorization is received.
This finding shall be documented in the ERR maintained by the
responsible entity and in the recipient's project files.
Sec. 58.72 HUD or State Actions on RROFs and certifications.
The actions which HUD (or a State) may take with respect to a
recipient's environmental certification and RROF are as follows:
(a) In the absence of any receipt of objection to the contrary,
except as provided in paragraph (b) of this section, HUD (or the State)
will assume the validity of the certification and RROF and will approve
these documents after expiration of the 15-day period prescribed by
statute.
(b) HUD (or the State) may disapprove a certification and RROF if
it has knowledge that the responsible entity has not complied with the
items in Sec. 58.75, or that the RROF and certification are inaccurate.
(c) In cases in which HUD has approved a certification and RROF but
subsequently learns (e.g., through monitoring) that the recipient
violated Sec. 58.22 or the recipient or responsible entity otherwise
failed to comply with a clearly applicable environmental authority, HUD
shall impose appropriate remedies and sanctions in accord with the law
and regulations for the program under which the violation was found.
Sec. 58.73 Objections to release of funds.
HUD (or the State) will not approve the ROF for any project before
15 calendar days have elapsed from the time of receipt of the RROF and
the certification or from the time specified in the notice published
pursuant to Sec. 58.70, whichever is later. Any person or agency may
object to a recipient's RROF and the related certification. However,
the objections must meet the conditions and procedures set forth in
subpart H of this part. HUD (or the State) can refuse the RROF and
certification on any grounds set forth in Sec. 58.75. All decisions by
HUD (or the State) regarding the RROF and the certification shall be
final.
Sec. 58.74 Time for objecting.
All objections must be received by HUD (or the State) within 15
days from the time HUD (or the State) receives the recipient's RROF and
the related certification, or within the time period specified in the
notice, whichever is later.
Sec. 58.75 Permissible bases for objections.
HUD (or the State), will consider objections claiming a responsible
entity's noncompliance with this part based only on any of the
following grounds:
(a) The certification was not in fact executed by the responsible
entity's Certifying Officer.
(b) The responsible entity has failed to make one of the two
findings pursuant to Sec. 58.40 or to make the written determination
required by Secs. 58.35, 58.47 or 58.53 for the project, as applicable.
(c) The responsible entity has omitted one or more of the steps set
forth at subpart E of this part for the preparation, publication and
completion of an EA.
(d) The responsible entity has omitted one or more of the steps set
forth at subparts F and G of this part for the conduct, preparation,
publication and completion of an EIS.
(e) The recipient has committed funds or incurred costs not
authorized by this part before release of funds and approval of the
environmental certification by HUD or the State.
[[Page 19132]]
(f) Another Federal agency acting pursuant to 40 CFR part 1504 has
submitted a written finding that the project is unsatisfactory from the
standpoint of environmental quality.
Sec. 58.76 Procedure for objections.
A person or agency objecting to a responsible entity's RROF and
certification shall submit objections in writing to HUD (or the State).
The objections shall:
(a) Include the name, address and telephone number of the person or
agency submitting the objection, and be signed by the person or
authorized official of an agency.
(b) Be dated when signed.
(c) Describe the basis for objection and the facts or legal
authority supporting the objection.
(d) State when a copy of the objection was mailed or delivered to
the responsible entity's Certifying Officer.
Sec. 58.77 Effect of approval of certification.
(a) Responsibilities of HUD and States. HUD's (or, where
applicable, the State's) approval of the certification shall be deemed
to satisfy the responsibilities of the Secretary under NEPA and related
provisions of law cited at Sec. 58.5 insofar as those responsibilities
relate to the release of funds as authorized by the applicable
provisions of law cited in Sec. 58.1(b).
(b) Public and agency redress. Persons and agencies seeking redress
in relation to environmental reviews covered by an approved
certification shall deal with the responsible entity and not with HUD.
It is HUD's policy to refer all inquiries and complaints to the
responsible entity and its Certifying Officer. Similarly, the State
(where applicable) may direct persons and agencies seeking redress in
relation to environmental reviews covered by an approved certification
to deal with the responsible entity, and not the State, and may refer
inquiries and complaints to the responsible entity and its Certifying
Officer. Remedies for noncompliance are set forth in program
regulations.
(c) Implementation of environmental review decisions. Projects of a
recipient will require post-review monitoring and other inspection and
enforcement actions by the recipient and the State or HUD (using
procedures provided for in program regulations) to assure that
decisions adopted through the environmental review process are carried
out during project development and implementation.
(d) Responsibility for monitoring and training. (1) At least once
every three years, HUD intends to conduct in-depth monitoring and
exercise quality control (through training and consultation) over the
environmental activities performed by responsible entities under this
part. Limited monitoring of these environmental activities will be
conducted during each program monitoring site visit. If through limited
or in-depth monitoring of these environmental activities or by other
means, HUD becomes aware of any environmental deficiencies, HUD may
take one or more of the following actions:
(i) In the case of problems found during limited monitoring, HUD
may schedule in-depth monitoring at an earlier date or may schedule in-
depth monitoring more frequently;
(ii) HUD may require attendance by staff of the responsible entity
at HUD-sponsored or approved training, which will be provided
periodically at various locations around the country;
(iii) HUD may refuse to accept the certifications of environmental
compliance on subsequent grants;
(iv) HUD may suspend or terminate the responsible entity's
assumption of the environmental review responsibility;
(v) HUD may initiate sanctions, corrective actions, or other
remedies specified in program regulations or agreements or contracts
with the recipient.
(2) HUD's responsibilities and action under paragraph (d)(1) of
this section shall not be construed to limit or reduce any
responsibility assumed by a responsible entity with respect to any
particular release of funds under this part. Whether or not HUD takes
action under paragraph (d)(1) of this section, the Certifying Officer
remains the responsible Federal official under Sec. 58.13 with respect
to projects and activities for which the Certifying Officer has
submitted a certification under this part.
Dated: March 27, 1996.
Henry G. Cisneros,
Secretary.
[FR Doc. 96-10467 Filed 4-29-96; 8:45 am]
BILLING CODE 4210-29-P
Complete official Federal Register PDF
FR Doc. 96-10173 Telecommunications Act of 1996
[Federal Register Volume 61, Number 84 (Tuesday, April 30, 1996)]
[Rules and Regulations]
[Pages 18968-18981]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-10173]
=======================================================================
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FEDERAL COMMUNICATIONS COMMISSION
47 CFR Part 76
[CS Docket No. 96-85, FCC 96-154]
Telecommunications Act of 1996
AGENCY: Federal Communications Commission.
ACTION: Interim and final rules.
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SUMMARY: This Order implements sections of the Telecommunications Act
of 1996 (``1996 Act''). The Order establishes rules conforming the
Commission's rules to statutory mandates that became effective upon
enactment of the 1996 Act. Although all rules promulgated pursuant to
this Order are ``final,'' the Commission recognizes that some rules,
apart from those implementing the explicit language of the 1996 Act,
should be viewed as ``interim'' rules subject to revision in the near
future based on comments and information received in an associated
Notice of Proposed Rulemaking (``NPRM'') that has been released
concurrently with this Order and published in this issue of the Federal
Register. This Order implements rules related to the 1996 Act's cable
reform provisions, including the definition of effective competition,
the cable rate complaint process, the sunset of cable programming
service tier regulation, small cable operators, uniform rate
requirements, subscriber notice of service and rate changes, technical
standards, cable system buy out restrictions, program access, the
definitions of cable system and cable
[[Page 18969]]
service, operator refusals to carry indecent programming, and prior
year losses. The intended effect of this action is to implement
provisions of the 1996 Act that revised the Cable Television Consumer
Protection and Competition Act of 1992.
DATES: The statutory requirements reflected in the final rules adopted
in this Order were effective February 8, 1996, the date of enactment of
the Telecommunications Act of 1996. The effective date for the final
rule changes (47 C.F.R. 76.5 (a) and (ff), 76.309(c)(3)(i)(B), 76.505,
76.605 Note 6, 76.701, 76.702, 76.905(b)(4), 76.933 (e) and (g)(5),
76.950, 76.951, 76.953(a), 76.956(a), 76.964, 76.984(c) as established
herein is April 30, 1996. The effective date of the interim rules (47
C.F.R. 76.1400-76.1404) is April 30, 1996. Procedures for submitting
comments can be found in the companion NPRM issued with this Order. The
companion NPRM can be found elsewhere in this issue of the Federal
Register.
FOR FURTHER INFORMATION CONTACT:
Tom Power, Paul Glenchur, Nancy Stevenson, Cable Services Bureau, (202)
416-0800.
SUPPLEMENTARY INFORMATION: This is a synopsis of a Commission Order in
CS Docket No. 96-85, FCC 96-154, adopted April 5, 1996 and released
April 9, 1996. The complete text of this document is available for
inspection and copying during normal business hours in the FCC
Reference Center, 1919 M St., N.W., Washington, D.C., and also may be
purchased from the Commission's copy contractor, International
Transcription Services, Inc. at (202) 857-3800, 2100 M Street, N.W.,
Suite 140, Washington, D.C. 20017.
Synopsis of Order
Table of Contents
Paragraph
I. Introduction............................................ 1
II. Order.................................................. 5
A. Effective Competition................................. 5
B. CPST Rate Complaints.................................. 16
C. Small Cable Operators................................. 20
D. Uniform Rate Requirement.............................. 30
E. Subscriber Notice..................................... 34
F. Technical Standards................................... 37
G. Buy Out Prohibitions.................................. 40
H. Program Access........................................ 43
I. Sunset of Upper Tier Rate Regulation.................. 46
J. Definition of ``Cable System''........................ 48
K. Definition of ``Cable Service''....................... 55
L. Cable Operator Refusal To Carry Certain Programming... 58
III. Regulatory Flexibility Analyses....................... 71
IV. Initial Paperwork Reduction Act of 1995 Analysis....... 75
V. Effective Date.......................................... 76
VI. Ordering Clauses....................................... 77
I. Introduction
1. In this item we amend the Commission's rules relating to cable
television to conform them to changes in the Communications Act
enacted, on February 8, 1996, in the Telecommunications Act of 1996
(the ``1996 Act''). In addition, in an associated Notice of Proposed
Rulemaking (``NPRM''), we propose further rules to the extent necessary
to implement various provisions of the 1996 Act. Finally, because many
of these statutory provisions were effective upon enactment, we
establish interim rules to govern implementation of the 1996 Act
pending adoption of final rules.
2. Our intent in this item is to conform our rules promptly to
statutory requirements that are already in effect, to bring certainty
to cable operators and local regulators, and to achieve as quickly as
possible the deregulation intended by Congress. Further, we seek to
streamline our procedural regulations and, of course, to continue to
protect consumers, consistent with congressional intent.
3. Much of the 1996 Act consists of clear, self-effectuating
revisions to prior federal statutory provisions. The Order portion of
this item conforms our rules to meet these new statutory requirements.
We are revising these rules without providing prior public notice and
an opportunity for comment because the rule modifications are mandated
by the applicable provisions of the 1996 Act. We find that notice and
comment procedures are unnecessary, and that therefore this action
falls within the ``good cause'' exception of the Administrative
Procedure Act. 5 U.S.C. Sec. 553(b)(B). The final rules adopted in this
Order do not involve discretionary action on the part of the
Commission. Rather, they simply implement provisions of the 1996 Act
according to the specific terms set forth in the legislation.
4. Other provisions of the 1996 Act are already effective, but
require further rulemaking in order to be fully and clearly
implemented. The companion NPRM addresses these issues. We find it in
the public interest to adopt interim rules immediately and find good
cause to establish them without the benefit of the traditional notice
and comment process. Of course, our final rules will be crafted to take
into account public comment to the same extent as would be the case in
a rulemaking that was not preceded by the adoption of interim policies.
However, we intend the interim rules to create a safe harbor, i.e.,
operators can be assured that if they comply with these interim rules,
their behavior will not later be subject to challenge based upon the
ultimate outcome of the rulemaking.
II. Order
A. Effective Competition
1. Final Rule Change
5. Since passage of the Cable Television Consumer Protection and
Competition Act of 1992 (the ``1992 Cable Act''), regulation of cable
television has been guided by Congress' intent to ``rely on the
marketplace, to the maximum extent feasible . . . .'' The 1992 Cable
Act required the Commission to prescribe rate regulations that protect
subscribers from having to pay unreasonable rates by ensuring that
rates for regulated services do not exceed rates that would be charged
in the presence of effective competition. Thus, regulations governing
the rates charged for cable services do not apply to cable systems that
actually face effective competition. For a system that is not subject
to effective competition, the Commission is obligated to ensure the
reasonableness of rates charged for the basic service tier (``BST'')
and for the cable programming service tier (``CPST''). The BST, which a
subscriber must purchase in order to have access to any other tier of
service, must include all of the local broadcast television stations
that the operator offers over its system, plus any public, educational,
or government access channels that the operator is required to provide
to subscribers under the terms of its franchise. A CPST is any tier of
programming, other than the basic service tier, that a cable operator
offers. Where effective competition is present, certain other
regulatory requirements also become inapplicable, including the uniform
rate requirement, the ``tier buy through'' requirement, and certain of
the ownership rules.
6. Section 76.905(b) of our rules incorporates the statutory
definition of ``effective competition'' as set forth in the 1992 Cable
Act. Pursuant to that rule, a system is subject to effective
competition in the area covered by its local franchise if any one of
the following three tests are met:
[[Page 18970]]
(1) Fewer than 30 percent of the households in its franchise
area subscribe to the cable service of a cable system.
(2) The franchise area is:
(i) Served by at least two unaffiliated multichannel video
programming distributors each of which offers comparable programming
to at least 50 percent of the households in the franchise area; and
(ii) the number of households subscribing to programming
services offered by multichannel video programming distributors
other than the largest multichannel video programming distributor
exceeds 15% of the households in the franchise area.
(3) A multichannel video programming distributor, operated by
the franchising authority for that franchise area, offers video
programming to at least 50 percent of the households in the
franchise area.
7. The three effective competition test categories described above
are not altered by the 1996 Act. However, Section 301(b)(3) of the 1996
Act creates a fourth test, finding that effective competition exists
when video programming is offered by, or over the facilities of, a
local exchange carrier (``LEC'') or its affiliate. Thus, effective
competition now exists if a:
Local exchange carrier or its affiliate (or any multichannel
video programming distributor using the facilities of such carrier
or its affiliate) offers video programming services directly to
subscribers by any means (other than direct-to-home satellite
services) in the franchise area of an unaffiliated cable operator
which is providing cable service in that franchise area, but only if
the video programming services so offered in that area are
comparable to the video programming services provided by the
unaffiliated cable operator in that area.
This provision was effective upon enactment. Therefore, we amend our
rules to incorporate this additional prong of the definition of
effective competition. Consistent with Section 623 of the statute, we
seek to adopt interim and permanent rules that will allow the
Commission to determine when the level of competition provided by a LEC
or its affiliate is sufficient to have a restraining effect on cable
rates.
2. Definitions of ``offer'' and ``in the franchise area''
8.-9. The Commission's pre-existing definition of ``offer'' will
apply under the new test for effective competition:
Service of a multichannel video programming distributor will be
deemed offered: (1) When the multichannel video programming
distributor is physically able to deliver service to potential
subscribers, with the addition of no or only minimal additional
investment by the distributor, in order for an individual subscriber
to receive service; and (2) When no regulatory, technical or other
impediments to households taking service exist, and potential
subscribers in the franchise area are reasonably aware that they may
purchase the services of the multichannel video programming
distributor.
10. The legislative history to the 1996 Act indicates congressional
intent to apply this definition of ``offer'' for purposes of the new
test for effective competition.
11. An operator should focus on each element of the ``offer''
definition, in the context of the new test for effective competition,
when attempting to prove that the service offered by the LEC-affiliated
multichannel video programming distributor (``MVPD'') is effective in
restraining cable rates. For example, a cable operator seeking to prove
effective competition will have to show that the competitor is
``physically able'' to offer service to subscribers ``in the franchise
area.'' Where the competitor's service area does not follow the borders
of the local cable franchise areas, a cable operator should describe
the extent of the overlap between its franchise area and the actual or
planned service area of the competitor. With respect to multichannel
multipoint distribution service (``MMDS''), for example, we previously
have determined that the potential subscribers include only those who
reside in ``areas to which the MMDS operator is capable of providing
video programming.'' We note that the zone in which our rules protect a
MMDS licensee from harmful electrical interference is a circle with a
radius of 35 miles centered on the MMDS transmitter site. Thus, in
seeking to establish effective competition from a LEC-affiliated MMDS
operator, a cable operator should provide the location of the MMDS
transmitter and the 35-mile protected zone. The cable operator also
should provide any other reasonably available technical and geographic
information, as well as information about the geographic scope of the
competitor's marketing efforts, to help establish that service is being
offered to subscribers in the franchise area. Such data, whether with
respect to a MMDS operator or some other LEC-affiliated MVPD, will also
be relevant to a showing that there are no technical or other
impediments to households taking service from the MVPD. Where
appropriate, we will request additional relevant information from the
competing MVPD.
12. In addition, the cable operator must establish that ``potential
subscribers in the franchise area are reasonably aware'' that they may
purchase the competitor's service. The marketing efforts of the LEC or
its affiliate often will be directly related to this issue. As we
previously have observed, ``potential subscribers may be made
reasonably aware of the availability of a competing service, for
example, through advertising in regional or local media, direct mail,
or any other marketing outlet.'' (Rate Order), 58 FR 29736 (May 21,
1993). Thus, cable operators may rely on marketing information to the
extent necessary to show consumer perceptions of the availability and
comparability of the competing service. Again, the Commission may seek
information directly from the competitor in appropriate circumstances.
3. Definition of ``comparable programming''
13. The legislative history reveals Congress's intent that video
programming be deemed ``comparable'' for purposes of this test if the
competing service ``includes access to at least 12 channels of
programming, at least some of which are television broadcasting
signals.'' On an interim basis we will require the broadcast
programming to include the signals of local broadcasters. Broadcast
programming delivered by satellite (e.g., ``superstations'') shall not
be deemed broadcast programming for purposes of the interim application
of the new effective competition test.
4. MMDS Provision of Local Broadcast Channels
14. The definitions of ``offer'' and ``comparable programming''
require us to address a further question that arises specifically in
the context of MMDS. An MMDS operator has two ways of ensuring that its
subscribers receive local broadcast programming. The operator can pull
in the broadcast signals itself via its own centrally located broadcast
antenna and then retransmit the entire package of broadcast and non-
broadcast signals to the microwave antenna located at the subscriber's
residence, or the operator can install a separate broadcast antenna to
complement the microwave antenna at each subscriber location. We must
determine whether the wireless cable operator should be deemed to be
``offering'' broadcast programming in the latter situation, i.e., when
the operator does not transmit the broadcast signals to the subscriber
via microwave. In that situation, the operator must join the broadcast
signals to the microwave signals at some point. One approach is to join
those signals in a single cable that runs to the back of the customer's
television set or to a settop converter box. Another approach is to run
separate cable lines from each antenna to an A/B switch from which a
single line is connected to the television set.
[[Page 18971]]
The subscriber pushes the switch back and forth between the A position
and the B position, depending upon whether the subscriber wants to see
the broadcast channels or the microwave channels.
15. On an interim basis, we will resolve this issue as follows. If
the broadcast channels are available to the subscriber without an A/B
switch or similar device, the MMDS operator will be deemed to be
offering them within the meaning of Section 301(b)(3) of the 1996 Act.
If an A/B switch or similar device is required, we will still deem the
broadcast stations offered if the MMDS operator is responsible for the
installation. However, if the customer must install his or her own A/B
switch to receive the broadcast channels, the MMDS operator will not be
deemed to be offering those channels. Inclusion of broadcast channels
on the MMDS operator's rate card, advertising, or other marketing
materials may be evidence that the MMDS operator offers the broadcast
channels in accordance with our definition of ``offer.'' We note the
significance of marketing materials because it is arguable that an MMDS
operator that markets itself as a provider of local broadcast channels
will take the steps necessary to ensure that subscribers receive those
channels. In those circumstances, the broadcast channels would seem to
be a part of the programming package that the MMDS operator is offering
and providing, regardless of the technical means employed.
5. Definition of ``affiliate''
16. Under our interim rules implementing this statute, an entity
will be considered affiliated with a LEC if it meets the definition of
``affiliate'' set forth in Section 3 of the 1996 Act:
The term ``affiliate'' means a person that (directly or
indirectly) owns or controls, is owned or controlled by, or is under
common ownership or control with another person. For purposes of
this paragraph, the term ``own'' means to own an equity interest (or
the equivalent thereof) of more than 10 percent.
17. We note that this definition of ``affiliate,'' which has been
incorporated in Title I of the Communications Act, does not strictly
apply to matters under Title VI, since Title VI contains a separate
definition of that term that does not set a percentage threshold as to
what constitutes ownership. We believe this gives us discretion to
establish an ownership threshold other than 10% for purposes of Title
VI. However, because a determination of the precise threshold must
await the rulemaking we initiate in the accompanying NPRM, on an
interim basis we find it reasonable to use the Title I ownership
threshold that Congress has prescribed for purposes of most other
provisions of the Communications Act. Therefore, effective competition
under the new test may be established when a LEC owns an active or
passive equity interest, or the equivalent thereof, of more than 10% in
the competing MVPD. We will determine what constitutes the
``equivalent'' of an equity interest on a case-by-case basis.
Affiliation also can be shown through de facto control, regardless of
the actual ownership interest. The ownership threshold we adopt in the
interim does not in any way preclude the establishment of a permanent
rule that incorporates a different threshold.
6. Procedures
18. A cable system that meets all of the relevant criteria in the
new effective competition test is exempt from rate regulation as of
February 8, 1996, the date the 1996 Act was enacted. Such an operator
may file a petition for a determination of effective competition with
the Commission. The petition should demonstrate that all the relevant
criteria are satisfied. We note that, by necessity, we have adopted the
substantive requirements discussed above on an interim basis without
the usual notice and comment proceeding. Accordingly, petitioners
seeking a declaration of effective competition under the new test are
free to provide additional information, consistent with the statute,
that the operator believes proves the existence of effective
competition that must exist in order to exempt an operator from rate
regulation.
19. This petition may be filed with the Commission at any time,
including in response to a notice from the local franchising authority
(``LFA'') that it intends to file a CPST rate complaint. (A LFA
certified to regulate rates can simply withdraw its certification at
any time if it believes the cable operator is subject to effective
competition, or for any other reason.) The operator shall provide a
copy of the petition to the LFA. The Commission will provide public
notice of the petition's filing to enable interested parties to file
responses to the petition. Thereafter, we will determine whether
effective competition exists and may issue an order granting the
petition. As we have noted, the Commission may issue an order directing
one or more persons to produce information relevant to the operator's
petition. For example, the order may be directed to a LEC that is
asserted to hold an interest in an MVPD sufficient to reach affiliation
levels that would trigger a finding of effective competition. The
Commission will act promptly on these petitions. A Commission
determination regarding effective competition will be applicable to
both the BST and CPST.
B. CPST Rate Complaints
20. Under existing regulations, adopted pursuant to Section
623(c)(1)(B) of the Communications Act as it existed prior to the 1996
Act, subscribers were allowed to file complaints concerning CPST rates
directly with the Commission. Section 301(b)(1)(C) of the 1996 Act
alters the manner in which the Commission reviews complaints concerning
rates charged for a CPST. In particular, that Section provides:
The Commission shall review any complaint submitted by a
franchising authority after the date of enactment of the
Telecommunications Act of 1996 concerning an increase in rates for
cable programming services and issue a final order within 90 days
after it receives such a complaint, unless the parties agree to
extend the period for such review. A franchising authority may not
file a complaint under this paragraph unless, within 90 days after
such increase becomes effective, it receives subscriber complaints.
21. Accordingly, we amend our rule to incorporate the self-
effectuating language of Section 301(b)(1)(C). In addition, we have
eliminated the requirement in Section 76.964 of our rules that
operators notify subscribers of their right to file complaints with the
Commission. Also in Section 76.964, we eliminate the requirement that
operators notify subscribers of the Commission's address and phone
number for purposes of filing rate complaints. Subscriber complaints
received by the Commission after February 8, 1996 are being returned to
the subscriber with a notice of this change.
22. We also establish interim rules governing the filing of rate
complaints by LFAs. Section 301(b)(a)(C) authorizes an LFA to file a
rate complaint with the Commission if the LFA receives subscriber
complaints within 90 days after an operator's rate increase becomes
effective. Although the statute allows only LFAs to file rate
complaints directly with the Commission, subscribers now have twice as
long to complain about a rate increase as they did under our previous
rules. We provide in this interim rule that an LFA may file rate
complaints with the Commission when the LFA receives more than one
subscriber complaint concerning an operator's rate increase.
Modifications to the Commission cable rate complaint form, Form 329,
will be made accordingly. The records
[[Page 18972]]
maintained by an LFA in accordance with its regular business practice
should be sufficient to establish that the LFA received the subscriber
complaints within 90 days of a rate increase.
23. If the LFA receives more than one subscriber complaint within
the 90-day period and decides to file its own complaint with the
Commission, it must do so no more than 180 days after the rate increase
became effective. Before filing a complaint with the Commission, the
LFA shall first give the cable operator written notice of its intent to
do so and give the operator a minimum of 30 days to file with the LFA
the relevant FCC Forms used to justify a rate increase. The LFA shall
then forward its complaint and the operator's response to the
Commission within the 180 day deadline specified above. If the operator
fails to respond, the LFA should file its complaint and specify that
the operator has not filed a response. We will then decide the case
based upon the information before us. This procedure shall not apply to
LFA complaints filed on or before the 15th day following the release
date of this item. We will address those complaints filed prior to such
date on an individual basis.
C. Small Cable Operators
1. Final Rule Change
24. The 1996 Act exempts certain smaller cable systems from certain
provisions of Section 623 of the Communications Act that authorize the
Commission and LFAs to regulate cable rates. Specifically, Section
301(c) of the 1996 Act amends Section 623 of the Communications Act by
adding the following subsection:
(m) Special Rules For Small Companies.
(1) In General. Subsections (a), (b), and (c) do not apply to a
small cable operator with respect to--
(A) cable programming services, or
(B) a basic service tier that was the only service tier subject to
regulation as of December 31, 1994,
in any franchise area in which that operator services 50,000 or fewer
subscribers.
(2) Definition of Small Cable Operator. For purposes of this
subsection, the term ``small cable operator'' means a cable operator
that, directly or through an affiliate, serves in the aggregate fewer
than 1 percent of all subscribers in the United States and is not
affiliated with any entity or entities whose gross annual revenues in
the aggregate exceed $250,000,000.
25. We amend our rules, to reflect the exceptions to rate
regulation created by section 301(c) of the 1996 Act.
26. Because Section 301(c) was effective upon enactment of the
statute, we will establish in this Order interim rules to apply pending
adoption of final rules.
2. Definition of ``small cable operator''
27. With respect to the definition of a small cable operator, and
for interim purposes only, we find that there are 61,700,000 cable
subscribers in the United States. Therefore, an operator serving fewer
than 617,000 subscribers shall be deemed a small operator if its annual
revenues, when combined with the total annual revenues of all of its
affiliates, do not exceed $250 million in the aggregate. Further, to
implement the small operator provisions pending adoption of final
rules, we will use the definition of ``affiliate'' that we adopted last
year for purposes of our small system cost-of-service rules. Therefore,
an entity shall be deemed affiliated with a small cable operator if
that entity has a 20% or greater equity interest in the operator
(active or passive) or holds de jure or de facto control over the
operator. In the present context, we believe it is reasonable to apply
our definition of affiliation as it exists under our small system
rules, given that those rules and the small cable operator provisions
of the 1996 Act all have the same intent of minimizing regulation and
ensuring access to needed capital for smaller cable entities.
3. Scope of Deregulation
28. Assuming an operator is eligible for deregulation under the
statutory subscriber and revenue criteria, the scope of deregulation
will depend, at least on an interim basis, upon the number of tiers of
service that were subject to rate regulation as of December 31, 1994.
We believe it to be Congress's intent that any qualifying system that
had only a single tier of cable service subject to regulation as of
December 31, 1994 shall be exempt from rate regulation as to all of its
programming services, regardless of the number of tiers it now offers.
By contrast, a qualifying system that had more than one tier subject to
regulation as of December 31, 1994 shall remain regulated on the BST.
4. Procedures
29. A cable operator that satisfies all of the relevant criteria is
exempt from rate regulation as to the extent provided above effective
February 8, 1996, the date the 1996 Act was enacted. If such an
operator had only a single tier as of December 31, 1994, and the LFA
for the franchise area in which that operator offers service is
certified to regulate cable rates under the 1992 Cable Act, the
operator should certify in writing to such LFA that the operator meets
all of the criteria for deregulation of the BST. It may make this
certification at any time. Upon request of the LFA, the operator shall
identify in writing all of its affiliates that provide cable service,
the total cable subscriber base of itself and each affiliate, and the
aggregate gross revenues of all its cable and non-cable affiliates.
Within 90 days of the original certification, the LFA shall determine
whether the operator qualifies for deregulation and shall notify the
operator in writing of its decision, although this 90-day period shall
be tolled for so long as it takes the operator to respond to a proper
request for information by the LFA. If the LFA finds that the operator
does not qualify for deregulation, its notice shall state the grounds
for that decision. The operator may challenge that decision by filing
an appeal with the Commission within 30 days.
30. Once the operator has certified its eligibility for
deregulation on the BST, the LFA shall not prohibit the operator from
taking a rate increase and shall not order the operator to make any
refunds, unless and until the LFA has rejected the certification in a
final order that is no longer subject to appeal or that the Commission
has affirmed. Thus, the operator may take rate increases while its
certification is pending. However, the operator shall be liable for
refunds for the revenues it gains (beyond those revenues that it could
have gained under regulation) as a result of any rate increase taken
during the period in which it claimed to be deregulated, plus interest,
in the event it is later found not to be deregulated. In addition, the
running of the standard one-year limitation on refund liability will be
tolled during that period to ensure that the filing of an invalid small
operator certification does not reduce any refund liability that the
operator otherwise would incur.
31. A system that qualifies under the new small operator subscriber
and revenue requirements and that had more than one tier as of December
31, 1994 is deregulated on all its CPSTs as of February 8, 1996. Within
30 days of being served with a LFA's notice that it intends to file a
CPST rate complaint, such an operator shall certify to the LFA that it
meets the relevant small operator criteria, in accordance with the new
CPST rate complaint procedure described above. This certification shall
be in lieu of the rate justification that an operator otherwise would
submit. The LFA may either resolve the issue itself in accordance with
the procedures set
[[Page 18973]]
forth immediately above, or it may forward its notice and the
operator's response for Commission review in accordance with the new
procedures for CPST rate complaints. No certification is necessary if
the operator does not receive notice that the LFA intends to file a
CPST rate complaint. If a pending CPST rate complaint was filed with
the Commission before the effective date of these interim rules, the
operator should file its certification of small operator status
directly with the Commission within 15 days of that effective date.
32. We adopt these interim rules solely for the purpose of
implementing Section 301(c) of the 1996 Act pending our adoption of
final rules. These interim rules in no way alter or amend our small
system cost-of-service rules or any other rules applicable to small
systems or small cable companies, except to the extent such rules no
longer apply to systems deregulated under Section 301(c) of the 1996
Act.
4. Relationship With Preexisting Small System Rules
33. In the interests of eliminating confusion and uncertainty, we
will summarize the separate treatment available to small systems as
defined by our preexisting rules. Last year, the Commission adopted
rules streamlining cost-of-service rate regulation for any system
serving fewer than 15,000 subscribers (a ``small system''), as long as
the system is owned by an operator that serves no more than 400,000
subscribers over all of its systems (a ``small cable company''). Once a
system qualifies under these criteria, it remains subject to the
relaxed rules for so long as the system serves fewer than 15,000
subscribers, even if the company later exceeds 400,000 subscribers or
if the small system is acquired by an operator with more than 400,000
subscribers. When the system exceeds 15,000 subscribers, it may
maintain its current rates but cannot seek an increase until such an
increase is permitted under our standard rate rules applicable to
systems generally. Our small system rules are unaffected by the 1996
Act or this rulemaking.
D. Uniform Rate Requirement
34. Prior to enactment of the 1996 Act, Section 623(d) of the
Communications Act provided in full: ``A cable operator shall have a
rate structure, for the provision of cable service, that is uniform
throughout the geographic area in which cable service is provided over
its cable system.'' Section 76.984 of the Commission's rules was
adopted to implement this requirement. The Commission interpreted the
rules (and the statutory requirement) as applying to systems not facing
effective competition as well as to those facing effective competition.
Upon review, the court in Time Warner Entertainment Co. v. FCC found
this interpretation to be incorrect, holding that ``[a]pplication of
the uniform rate provision to competitive systems violates 47 U.S.C.
Sec. 543(a)(2). . . .''
35. Section 301(b)(2) of the 1996 Act addresses the uniform rate
structure through a statutory amendment which, in relevant part, is
consistent with the action of the court. It amends the uniform rate
provision by adding the following at the end of Section 623(d):
This subsection does not apply to (1) a cable operator with
respect to the provision of cable service over its cable system in
any geographic area in which the video programming services offered
by the operator in that area are subject to effective competition,
or (2) any video programming offered on a per channel or per program
basis. Bulk discounts to multiple dwelling units shall not be
subject to this subsection, except that a cable operator of a cable
system that is not subject to effective competition may not charge
predatory prices to a multiple dwelling unit. Upon a prima facie
showing by a complainant that there are reasonable grounds to
believe that the discounted price is predatory, the cable system
shall have the burden of showing that its discounted price is not
predatory.
36. Accordingly, we amend Section 76.984 of our rules to conform to
the new statutory language.
37. Until final rules are adopted, the complaint process
established by Section 301(b)(2) of the 1996 Act shall be governed by
the provisions of Section 76.7 of our rules applicable to petitions for
special relief generally.
E. Subscriber Notice
38. Section 301(g) of the 1996 Act adds a new subsection to Section
632 of the Communications Act. The new subsection reads as follows:
Subscriber Notice. A cable operator may provide notice of
service and rate changes to subscribers using any reasonable written
means at its sole discretion. Notwithstanding section 623(b)(6) or
any other provision of this Act, a cable operator shall not be
required to provide prior notice of any rate change that is the
result of a regulatory fee, franchise fee, or any other fee, tax
assessment, or charge of any kind imposed by any Federal agency,
State, or franchising authority on the transaction between the
operator and the subscriber.
39. Accordingly, we modify our rules pursuant to Section 301(g) of
the 1996 Act to provide that a cable operator may provide notice of
service and rate changes to subscribers using any reasonable written
means at its sole discretion, and that a cable operator shall not be
required to provide prior notice of any rate change that is the result
of a regulatory fee, franchise fee, or any other fee, tax assessment,
or charge of any kind imposed by any Federal agency, State, or
franchising authority on the transaction between the operator and the
subscriber.
40. We note that previously the Commission distinguished written
notice sent to subscribers from written announcements on the cable
system or in the newspaper. We made these distinctions in an effort to
ensure that notice was adequate depending upon the circumstances. We
now note the legislative history of the House amendment, which was
ultimately adopted by the Conference Committee, states that ``[n]otice
need not be inserted in the subscriber's bill.'' Given the cited
statutory provision and its legislative history, a change in our
current rules is justified so that notice provided through written
announcements on the cable system or in the newspaper will be presumed
sufficient. We believe this furthers Congressional intent regarding the
adequacy of any required notice. We will address any disputes that may
arise in this area on a case-by-case basis.
F. Technical Standards
41. Pursuant to Section 624(e) of the Communications Act, the
Commission has adopted technical standards that govern the picture
quality performance of cable television systems. Prior to enactment of
the 1996 Act, Section 624(e) provided, in part:
A franchising authority may require as part of a franchise
(including a modification, renewal, or transfer thereof) provisions
for the enforcement of the standards prescribed under this
subsection. A franchising authority may apply to the Commission for
a waiver to impose standards that are more stringent than the
standards prescribed by the Commission under this subsection.
42. Section 301(e) of the 1996 Act strikes the above two sentences
and adds the following:
No State or franchising authority may prohibit, condition, or
restrict a cable system's use of any type of subscriber equipment or
any transmission technology.
43. Thus, we eliminate the language in Note Six to Section 76.605
of our rules which permitted a franchising authority to apply to the
Commission for a waiver to impose cable technical standards that are
more stringent than the standards prescribed by the Commission. We
insert the new language from Section 301(e) in Note Six.
[[Page 18974]]
G. Buy Out Prohibitions
44. Section 302(a) of the 1996 Act creates a new Section 652 of the
Communications Act that provides as follows:
(a) Acquisitions By Carriers. No local exchange carrier or any
affiliate of such carrier owned by, operated by, controlled by, or
under common control with such carrier may purchase or otherwise
acquire directly or indirectly more than a 10 percent financial
interest, or any management interest, in any cable operator
providing cable service within the local exchange carrier's
telephone service area.
(b) Acquisitions By Cable Operators. No cable operator or
affiliate of a cable operator that is owned by, operated by,
controlled by, or under common ownership with such cable operator
may purchase or otherwise acquire, directly or indirectly, more than
a 10 percent financial interest, or any management interest, in any
local exchange carrier providing telephone exchange service within
such cable operator's franchise area.
(c) Joint Ventures. A local exchange carrier and a cable
operator whose telephone service area and cable franchise area,
respectively, are in the same market may not enter into any joint
venture or partnership to provide video programming directly to
subscribers or to provide telecommunications services within such
market.
(d) Exceptions.
(1) Rural Systems. Notwithstanding subsections (a), (b), and (c)
of this section, a local exchange carrier (with respect to a cable
system located in its telephone service area) and a cable operator
(with respect to the facilities of a local exchange carrier used to
provide telephone exchange service in its cable franchise area) may
obtain a controlling interest in, management interest in, or enter
into a joint venture or partnership with the operator of such system
or facilities for the use of such system or facilities to the extent
that--
(A) such system or facilities only serve incorporated or
unincorporated--
(i) places or territories that have fewer than 35,000
inhabitants; and
(ii) are outside an urbanized area, as defined by the Bureau of
the Census; and
(B) in the case of a local exchange carrier, such system, in the
aggregate with any other system in which such carrier has an
interest, serves less than 10 percent of the households in the
telephone service area of such carrier.
(2) Joint Use. Notwithstanding subsection (c), a local exchange
carrier may obtain, with the concurrence of the cable operator on
the rates, terms, and conditions, the use of that part of the
transmission facilities of a cable system extending from the last
multi-user terminal to the premises of the end user, if such use is
reasonably limited in scope and duration, as determined by the
Commission.
(3) Acquisitions in Competitive Markets. Notwithstanding
subsections (a) and (c), a local exchange carrier may obtain a
controlling interest in, or form a joint venture or other
partnership with, or provide financing to, a cable system
(hereinafter in this paragraph referred to as ``the subject cable
system'') if--
(A) the subject cable system operates in a television market
that is not in the top 25 markets, and such market has more than 1
cable system operator, and the subject cable system is not the cable
system with the most subscribers in such television market;
(B) the subject cable system and the cable system with the most
subscribers in such television market held on May 1, 1995, cable
television franchises from the largest municipality in the
television market and the boundaries of such franchises were
identical on such date;
(C) the subject cable system is not owned by or under common
ownership or control of any one of the 50 cable system operators
with the most subscribers as such operators existed on May 1, 1995;
and
(D) the system with the most subscribers in the television
market is owned by or under common ownership or control of any one
of the 10 largest cable system operators as such operators existed
on May 1, 1995.
(4) Exempt Cable Systems. Subsection (a) does not apply to any
cable system if--
(A) the cable system serves no more than 17,000 cable
subscribers, of which no less than 8,000 live within an urban area,
and no less than 6,000 live within a nonurbanized area as of June 1,
1995;
(B) the cable system is not owned by, or under common ownership
or control with, any of the 50 largest cable system operators in
existence on June 1, 1995; and
(C) the cable system operates in a television market that was
not in the top 100 television markets as of June 1, 1995.
(5) Small Cable Systems In Nonurban Areas. Notwithstanding
subsections (a) and (c), a local exchange carrier with less than
$100,000,000 in annual operating revenues (or any affiliate of such
carrier owned by, operated by, controlled by, or under common
control with such carrier) may purchase or otherwise acquire more
than a 10 percent financial interest in, or any management interest
in, or enter into a joint venture or partnership with, any cable
system within the local exchange carrier's telephone service area
that serves no more than 20,000 cable subscribers, if no more than
12,000 of those subscribers live within an urbanized area, as
defined by the Bureau of the Census.
(6) Waivers. The Commission may waive the restrictions of
subsections (a), (b), or (c) only if:
(A) the Commission determines that, because of the nature of the
market served by the affected cable system or facilities used to
provide telephone exchange service--
(i) the affected cable operator or local exchange carrier would
be subjected to undue economic distress by the enforcement of such
provisions;
(ii) the system or facilities would not be economically viable
if such provisions were enforced; or
(iii) the anticompetitive effects of the proposed transaction
are clearly outweighed in the public interest by the probable effect
of the transaction in meeting the convenience and needs of the
community to be served; and
(B) the local franchising authority approves of such waiver.
(e) Definition Of Telephone Service Area. For purposes of this
section, the term ``telephone service area'' when used in connection
with a common carrier subject in whole or in part to title II of
this Act means the area within which such carrier provided telephone
exchange service as of January 1, 1993, but if any common carrier
after such date transfers its telephone exchange service facilities
to another common carrier, the area to which such facilities provide
telephone exchange service shall be treated as part of the telephone
service area of the acquiring common carrier and not of the selling
common carrier.
45. Accordingly, we add a new section to our rules regarding the
ownership of cable systems to incorporate the provisions of Section
302(a) of the 1996 Act described above.
46. With respect to the joint use provisions of Section 302(a), the
Commission will make such determinations on a case-by-case basis using
the following procedures in accordance with Section 76.7 of our rules.
Within ten days of final execution of a contract permitting a local
exchange carrier to use that part of the transmission facilities of a
cable system extending from the last multi-user terminal to the
premises of the end user, the parties shall submit a copy of such
contract, along with an explanation of how such contract is reasonably
limited in scope and duration, to the Commission for review. The
parties shall serve a copy of this submission on the LFA, along with a
notice of the deadline by which the LFA must file comments, if any,
with the Commission. Based upon the record before it, the Commission
shall then determine whether the local exchange carrier's use of that
part of the transmission facilities of a cable system extending from
the last multi-user terminal to the premises of the end user is
reasonably limited in scope and duration. In determining whether such
use is reasonably limited in scope and duration, the Commission will
look to the underlying policy goals of the legislation: To promote
competition in both services and facilities, and to encourage long-term
investment in the infrastructure.
H. Program Access
47. Section 628 of the Communications Act governs access to
programming. These program access provisions are intended to eliminate
unfair competitive practices and facilitate competition by providing
competitive access to certain defined categories of programming.
Generally speaking, the restrictions in Section 628 are applicable to
cable operators, satellite cable programming vendors in which a cable
operator has an attributable interest, and satellite broadcast
programming vendors. The
[[Page 18975]]
Commission rules implementing Section 628 appear at Section 76.1000 et
seq.
48. Section 301(j) of the 1996 Act amends section 628 by adding
the following: (j) Common Carriers.--Any provision that applies to a
cable operator under this section shall apply to a common carrier or
its affiliate that provides video programming by any means directly
to subscribers. Any such provision that applies to a satellite cable
programming vendor in which a cable operator has an attributable
interest shall apply to any satellite cable programming vendor in
which such common carrier has an attributable interest. For the
purposes of this subsection, two or fewer common officers or
directors shall not by itself establish an attributable interest by
a common carrier in a satellite cable programming vendor (or its
parent company).
49. Accordingly, we add a new section to the program access rules
to broaden their scope as described above. We also note that the
meaning of the term ``attributable interest'' as defined in our program
access rules shall also apply to common carriers, subject to the last
sentence of Section 301(j) of the 1996 Act, for purposes of program
access.
I. Sunset of Upper Tier Rate Regulation
50. Consistent with the 1992 Cable Act, the Commission established
rules to ensure that rates for cable programming services are not
unreasonable. The 1996 Act adds a provision to the Communications Act
that provides a sunset date for regulation of CPST rates. Specifically,
rate regulation ``shall not apply to cable programming services
provided after March 31, 1999.''
51. Accordingly, to implement this mandate, we are amending our
rules to include the statutory sunset provision.
J. Definition of ``Cable System''
52. Prior to enactment of the 1996 Act, and subject to four
specific exceptions, Section 602(7) of the Communications Act defined
the term ``cable system'' to include:
A set of closed transmission paths and associated signal
generation, reception, and control equipment that is designed to
provide cable service which includes video programming and which is
provided to multiple subscribers within a community. . . .
53. The four exceptions to this definition included
. . . (B) a facility that serves only subscribers in 1 or more
multiple unit dwellings under common ownership, control, or
management, unless such facility or facilities uses any public right
of way; [and] (C) a facility of a common carrier which is subject,
in whole or in part, to the provisions of Title II of this Act,
except that such facility shall be considered a cable system (other
than for purposes of section 621(c)) to the extent such facility is
used in the transmission of video programming directly to
subscribers. . . .
54. This statutory definition and the four exceptions were
incorporated into Section 76.5(a) of the Commission's rules.
55. The 1996 Act revises the definition of a cable system by
amending the two exceptions cited above and by adding a third
exception. Section 301 of the 1996 Act amends the first exception cited
above, subsection (B), by striking the quoted language and inserting
the following: ``(B) a facility that serves subscribers without using
any public right-of-way.'' Section 302 of the 1996 Act amends the
second exception quoted above, subsection (C), by adding the following
clause at the end of that subsection: ``, unless the extent of such use
is solely to provide interactive on-demand services.'' In addition,
Section 302 creates a new exception to the cable systems definition as
follows: ``(D) an open video system that complies with section 653 of
this title.'' Finally, Section 302 of the 1996 Act moves what had been
the fourth exception, subsection (D), to new subsection (E) of section
602(7) of the Communications Act.
56. In order to conform Section 76.5(a) to the new statutory
definition, we amend our rules accordingly.
57. Section 302 of the 1996 Act also adds the following definition
corresponding to one of the exceptions to the cable system definition:
The term ``interactive on-demand services'' means a service
providing video programming to subscribers over switched networks on
an on-demand, point-to-point basis, but does not include services
providing video programming prescheduled by the programming
provider;
58. Section 76.5 of our rules is amended to add this definition.
K. Definition of ``Cable Service''
59. Section 602(6) of the Communications Act defines the term
``cable service.'' Cable service is also defined in Section 76.5(ff) of
the rules. The 1996 Act amends that statutory definition by adding the
bracketed words:
(ff) Cable service. The one-way transmission to subscribers of
video programming, or other programming service; and, subscriber
interaction, if any, which is required for the selection [or use] of
such video programming or other programming service. For the
purposes of this definition, ``video programming'' is programming
provided by, or generally considered comparable to programming
provided by, a television broadcast station; and, ``other
programming service'' is information that a cable operator makes
available to all subscribers generally.
60. According to the legislative history of this provision, it
reflects the evolution of cable to include interactive services such as
game channels, information services made available to subscribers by
the cable operator, and enhanced services. This amendment is not
intended to affect Federal or State regulations of telecommunications
service offered through cable system facilities, or to cause dial-up
access to information services over telephone lines to be classified as
a cable service.
61. Accordingly, we amend our rules to conform Section 76.5(ff) to
the new statutory definition.
L. Cable Operator Refusal To Carry Certain Programming
62. Sec. 506(a) of the 1996 Act amends Sec. 611(e) of the
Communications Act, which governs public, educational, and governmental
access channels, by providing that ``a cable operator may refuse to
transmit any public access program or portion of a public access
program which contains obscenity, indecency, or nudity.''
63. Therefore, we amend the first sentence of Section 76.702 of the
Commission's rules by adding the bracketed language:
Any cable operator may prohibit the use on its system of any
channel capacity of any public, educational, or governmental access
facility for any programming which contains obscene material,
indecent material as defined in Sec. 76.701(g), [nudity], or
material soliciting or promoting unlawful conduct.
64. The 1996 Act contains a similar provision concerning
programming provided over leased access channels. Specifically, Section
506(b) of the 1996 Act amends Section 612(c)(2) of the Communications
Act, which restricts a cable operator's exercise of editorial control
over leased access programming, to provide that ``a cable operator may
refuse to transmit any leased access program or portion of a leased
access program which contains obscenity, indecency, or nudity . . . .''
65. However, the 1996 Act does not alter Section 612(h) of the
Communications Act which permits a cable operator
to enforce prospectively a written and published policy of
prohibiting programming that the cable operator reasonably believes
describes or depicts sexual or excretory activities of organs in a
patently offensive manner as measured by contemporary community
standards.
[[Page 18976]]
66. Section 76.701(a) of the Commission's rules parallels Section
612(h) of the 1996 Act. The remaining subsections of Section 76.701
contain related provisions. Under sections 76.701(b) and (c), an
operator that chooses to carry leased access programming falling within
the description contained in Section 76.701(a) must place all such
programming on channels made available only to subscribers who have
made a written request for the program and have certified to being at
least 18 years old. Subsections (d) and (e) require a person providing
leased access programming to identify, upon request of the cable
operator, any indecent programming or to certify that the programming
is not indecent or obscene. Subsection (f) permits the cable operator
to withhold access from a program provider that does not comply with an
operator request made under this rule. Subsection (g) defines
``indecent programming'' and subsection (h) requires operators to
maintain records verifying their compliance with these rules.
67. Reading the amended version of Section 612(c)(2) of the
Communications Act together with the pre-existing provisions of Section
612(h), we amend Section 76.701 such that its various subsections now
apply to ``any leased access program or portion of a leased access
program which the cable operator reasonably believes contains
obscenity, indecency, or nudity.''
68. The underlying Commission rules being amended here (Sections
76.701 and 76.702, 47 CFR Secs. 76.701 and 76.702) were adopted to
implement Section 10 of the 1992 Cable Act. These provisions are the
subject of the litigation in Alliance for Community Media v. FCC. In
that case, a panel of the D.C. Circuit Court of Appeals reversed and
remanded the rules to the Commission on the grounds that Section 10 of
the 1992 Act violated the First Amendment or raised serious
constitutional questions that warranted Commission reconsideration. The
full court vacated the panel's judgment and found the requirements
constitutional. The rules were stayed after the initial decision
finding them unconstitutional and that stay has been continued in force
pending Supreme Court review. Oral argument before the Supreme Court
took place on February 24, 1996. Nothing herein is intended to affect
the status of that stay. Accordingly, these amendments are stayed for
as long as the Alliance stay remains effective.
III. Regulatory Flexibility Analysis
69. Pursuant to the Regulatory Flexibility Act of 1980, 5 U.S.C.
Secs. 601-612, the Commission's Flexibility Analysis with respect to
the Report and Order is as follows:
70. Need and purpose of this action: The Commission issues this
Report and Order to enact or revise rules in response to the 1996 Act.
71. Significant Alternatives considered: Not applicable because
action is taken pursuant to statutory directive.
72. Federal rules that overlap, duplicate or conflict with these
rules: None.
IV. Inital Paperwork Reduction Act of 1995 Analysis
73. This Order contains modified information collection
requirements. As part of our continuing effort to reduce paperwork
burdens, we invite the general public and the Office of Management and
Budget (``OMB'') to take this opportunity to comment on the information
collections contained in this Order, as required by the Paperwork
Reduction Act of 1995, Pub. L. No. 104-13. Public and agency comments
are due at the same time as other comments on the NPRM; OMB comments
are due 60 days from the date of publication of this Order in the
Federal Register. Comments should address: (a) Whether the collection
of information is necessary for the proper performance of the functions
of the Commission, including whether the information shall have
practical utility; (b) the accuracy of the Commission's burden
estimates; (c) ways to enhance the quality, utility, and clarity of the
information collected; and (d) ways to minimize the burden of the
collection of information on the respondents, including the use of
automated collection techniques or other forms of information
technology.
V. Effective Date
74. The statutory requirements reflected in the final rules adopted
in the Order were effective February 8, 1996, the date of enactment of
the 1996 Act. The interim rules adopted in the Order are effective upon
publication of the Order in the Federal Register. We find good cause
for making these rule changes effective upon publication in the Federal
Register because the rules merely either implement statutory language
from the 1996 Act, or establish interim procedures (pending the
adoption of final rules) in response to immediately effective statutory
provisions in the 1996 Act. We also find notice and comment is not
necessary or in the public interest in this limited context.
Accordingly, the Commission will forego notice and comment pursuant to
the ``good cause'' exception of the Administrative Procedure Act. See 5
U.S.C. Sec. 553(d).
VI. Ordering Clauses
79. It is Ordered that pursuant to sections 4(i), 4(j) of the
Communications Act of 1934, as amended, 47 U.S.C. Secs. 154(i), 154(j),
303(r), and Telecommunications Act of 1996, Sec. 301, the Commission's
Rules are amended as set forth below, effective April 30, 1996.
80. It is further ordered that we are revising these rules without
providing prior public notice and an opportunity for comment because
the rule modifications are mandated by the applicable provisions of the
1996 Act. We find that notice and comment procedures are unnecessary,
and that therefore this action falls within the ``good cause''
exception of the Administrative Procedure Act. 5 U.S.C. Sec. 553(b)(B).
The final rules adopted in this Order do not involve discretionary
action on the part of the Commission. Rather, they simply implement
provisions of the 1996 Act according to the specific terms set forth in
the legislation, or establish interim procedures (pending the adoption
of final rules) in response to immediately effective statutory
provisions in the 1996 Act. For the same reasons, we find good cause to
make the rules effective April 30, 1996.
81. It is further ordered that the Secretary shall send a copy of
this Order, including the IRFA, to the Chief Counsel for Advocacy of
the Small Business Administration in accordance with paragraph 603(a)
of the Regulatory Flexibility Act, Pub. L. No. 96-354, 94 Stat. 1164, 5
U.S.C. Secs. 601, et seq. (1981).
82. For additional information regarding this proceeding, contact
Tom Power, Paul Glenchur, or Nancy Stevenson, Policy and Rules
Division, Cable Services Bureau (202) 416-0800.
List of Subjects in 47 CFR Part 76
Cable television.
Federal Communications Commission.
William F. Caton,
Acting Secretary.
Rule Changes
Part 76 of Title 47 of the Code of Federal Regulations is amended
as follows:
[[Page 18977]]
PART 76--CABLE TELEVISION SERVICE
1. The authority citation for Part 76 continues to read as follows:
Authority: Secs. 2, 3, 4, 301, 303, 307, 308, 309, 48 Stat., as
amended, 1064, 1065, 1066, 1081, 1082, 1083, 1084, 1085, 1101; 47
U.S.C. Sec. 152, 153, 154, 301, 303, 307, 308, 309; Secs. 612, 614-
615, 623, 632 as amended, 106 Stat. 1460, 47 U.S.C. 532; Sec. 623,
as amended, 106 Stat. 1460; 47 U.S.C. 532, 533, 535, 543, 552.
2. Section 76.5 is amended by revising paragraphs (a) and (ff) to
read as follows:
Sec. 76.5 Definitions.
(a) Cable system or cable television system. A facility consisting
of a set of closed transmission paths and associated signal generation,
reception, and control equipment that is designed to provide cable
service which includes video programming and which is provided to
multiple subscribers within a community, but such term does not
include:
(1) A facility that services only to retransmit the television
signals of one or more television broadcast stations;
(2) A facility that serves subscribers without using any public
right-of-way;
(3) A facility of a common carrier which is subject, in whole or in
part, to the provisions of Title II of the Communications Act of 1934,
as amended, except that such facility shall be considered a cable
system to the extent such facility is used in the transmission of video
programming directly to subscribers, unless the extent of such use is
solely to provide interactive on-demand services;
(4) An open video system that complies with Section 653 of the
Communications Act; or
(5) Any facilities of any electric utility used solely for
operating its electric utility systems.
Note to paragraph (a): The provisions of Subparts D and F of this
part shall also apply to all facilities defined previously as cable
systems on or before April 28, 1985, except those that serve
subscribers without using any public right-of-way.
* * * * *
(ff) Cable service. The one-way transmission to subscribers of
video programming, or other programming service; and, subscriber
interaction, if any, which is required for the selection or use of such
video programming or other programming service. For the purposes of
this definition, ``video programming'' is programming provided by, or
generally considered comparable to programming provided by, a
television broadcast station; and, ``other programming service'' is
information that a cable operator makes available to all subscribers
generally.
* * * * *
3. Section 76.309 is amended by revising paragraph (c)(3)(i)(B) to
read as follows:
Sec. 76.309 Customer service obligations.
* * * * *
(c) * * *
(3) * * *
(i) * * *
(B) Customers will be notified of any changes in rates, programming
services or channel positions as soon as possible in writing. Notice
must be given to subscribers a minimum of thirty (30) days in advance
of such changes if the change is within the control of the cable
operator. In addition, the cable operator shall notify subscribers
thirty (30) days in advance of any significant changes in the other
information required by paragraph (c)(3)(i)(A) of this section.
Notwithstanding any other provision of Part 76, a cable operator shall
not be required to provide prior notice of any rate change that is the
result of a regulatory fee, franchise fee, or any other fee, tax,
assessment, or charge of any kind imposed by any Federal agency, State,
or franchising authority on the transaction between the operator and
the subscriber.
* * * * *
4.-5. A new Sec. 76.505 is added to read as follows:
Sec. 76.505 Prohibition on buy outs.
(a) No local exchange carrier or any affiliate of such carrier
owned by, operated by, controlled by, or under common control with such
carrier may purchase or otherwise acquire directly or indirectly more
than a 10 percent financial interest, or any management interest, in
any cable operator providing cable service within the local exchange
carrier's telephone service area.
(b) No cable operator or affiliate of a cable operator that is
owned by, operated by, controlled by, or under common ownership with
such cable operator may purchase or otherwise acquire, directly or
indirectly, more than a 10 percent financial interest, or any
management interest, in any local exchange carrier providing telephone
exchange service within such cable operator's franchise area.
(c) A local exchange carrier and a cable operator whose telephone
service area and cable franchise area, respectively, are in the same
market may not enter into any joint venture or partnership to provide
video programming directly to subscribers or to provide
telecommunications services within such market.
(d) Exceptions:
(1) Notwithstanding paragraphs (a), (b), and (c) of this section, a
local exchange carrier (with respect to a cable system located in its
telephone service area) and a cable operator (with respect to the
facilities of a local exchange carrier used to provide telephone
exchange service in its cable franchise area) may obtain a controlling
interest in, management interest in, or enter into a joint venture or
partnership with the operator of such system or facilities for the use
of such system or facilities to the extent that:
(i) Such system or facilities only serve incorporated or
unincorporated :
(A) Places or territories that have fewer than 35,000 inhabitants;
and
(B) Are outside an urbanized area, as defined by the Bureau of the
Census; and
(ii) In the case of a local exchange carrier, such system, in the
aggregate with any other system in which such carrier has an interest,
serves less than 10 percent of the households in the telephone service
area of such carrier.
(2) Notwithstanding paragraph (c) of this section, a local exchange
carrier may obtain, with the concurrence of the cable operator on the
rates, terms, and conditions, the use of that part of the transmission
facilities of a cable system extending from the last multi-user
terminal to the premises of the end user, if such use is reasonably
limited in scope and duration, as determined by the Commission.
(3) Notwithstanding paragraphs (a) and (c) of this section, a local
exchange carrier may obtain a controlling interest in, or form a joint
venture or other partnership with, or provide financing to, a cable
system (hereinafter in this paragraph referred to as ``the subject
cable system'') if:
(i) The subject cable system operates in a television market that
is not in the top 25 markets, and such market has more than 1 cable
system operator, and the subject cable system is not the cable system
with the most subscribers in such television market;
(ii) The subject cable system and the cable system with the most
subscribers in such television market held on May 1, 1995, cable
television franchises from the largest municipality in the television
market and the boundaries of such franchises were identical on such
date;
(iii) The subject cable system is not owned by or under common
ownership or control of any one of the 50 cable system operators with
the most subscribers as such operators existed on May 1, 1995; and
[[Page 18978]]
(iv) The system with the most subscribers in the television market
is owned by or under common ownership or control of any one of the 10
largest cable system operators as such operators existed on May 1,
1995.
(4) Paragraph (a) of this section does not apply to any cable
system if:
(i) The cable system serves no more than 17,000 cable subscribers,
of which no less than 8,000 live within an urban area, and no less than
6,000 live within a nonurbanized area as of June 1, 1995;
(ii) The cable system is not owned by, or under common ownership or
control with, any of the 50 largest cable system operators in existence
on June 1, 1995; and
(iii) The cable system operates in a television market that was not
in the top 100 television markets as of June 1, 1995.
(5) Notwithstanding paragraphs (a) and (c) of this section, a local
exchange carrier with less than $100,000,000 in annual operating
revenues (or any affiliate of such carrier owned by, operated by,
controlled by, or under common control with such carrier) may purchase
or otherwise acquire more than a 10 percent financial interest in, or
any management interest in, or enter into a joint venture or
partnership with, any cable system within the local exchange carrier's
telephone service area that serves no more than 20,000 cable
subscribers, if no more than 12,000 of those subscribers live within an
urbanized area, as defined by the Bureau of the Census.
(6) The Commission may waive the restrictions of paragraphs (a),
(b), or (c) of this section only if:
(i) The Commission determines that, because of the nature of the
market served by the affected cable system or facilities used to
provide telephone exchange service:
(A) The affected cable operator or local exchange carrier would be
subjected to undue economic distress by the enforcement of such
provisions;
(B) The system or facilities would not be economically viable if
such provisions were enforced; or
(C) The anticompetitive effects of the proposed transaction are
clearly outweighed in the public interest by the probable effect of the
transaction in meeting the convenience and needs of the community to be
served; and
(ii) The local franchising authority approves of such waiver.
(e) For purposes of this section, the term ``telephone service
area'' when used in connection with a common carrier subject in whole
or in part to title II of the Communications Act means the area within
which such carrier provided telephone exchange service as of January 1,
1993, but if any common carrier after such date transfers its telephone
exchange service facilities to another common carrier, the area to
which such facilities provide telephone exchange service shall be
treated as part of the telephone service area of the acquiring common
carrier and not of the selling common carrier.
6. Section 76.605 is amended by revising paragraph (b) Note 6 to
read as follows:
Sec. 76.605 Technical standards.
* * * * *
Note 6: No State or franchising authority may prohibit, condition,
or restrict a cable system's use of any type of subscriber equipment or
any transmission technology.
7. Section 76.701 is amended by adding new paragraph (i) to read as
set forth below. Effective April 30, 1996, paragraph (i) is stayed.
Sec. 76.701 Leased access channels.
* * * * *
(i) Paragraphs (a) through (h) of this section apply to any
FR Doc. 96-10173 Telecommunications Act of 1996
leased
access program or portion of a leased access program which the cable
operator reasonably believes contains obscenity, indecency, or nudity.
8. Section 76.702 is revised to read as set forth below. Effective
April 30, 1996, Sec. 76.702 is stayed.
Sec. 76.702 Public, educational and governmental access.
Any cable operator may prohibit the use on its system of any
channel capacity of any public, educational, or governmental access
facility for any programming which contains nudity, obscene material or
indecent material as defined in Sec. 76.701(g), or material soliciting
or promoting unlawful conduct. For purposes of this section, ``material
soliciting or promoting unlawful conduct'' shall mean material that is
otherwise proscribed by law. A cable operator may require any access
user, or access manager or administrator agreeing to assume the
responsibility of certifying, to certify that its programming does not
contain any of the materials described in this section and that
reasonable efforts will be used to ensure that live programming does
not contain such material.
9. Section 76.905 is amended by adding new paragraph (b)(4) to read
as follows:
Sec. 76.905 Standards for identification of cable systems subject to
effective competition.
* * * * *
(b) * * *
(4) A local exchange carrier or its affiliate (or any multichannel
video programming distributor using the facilities of such carrier or
its affiliate) offers video programming services directly to
subscribers by any means (other than direct-to-home satellite services)
in the franchise area of an unaffiliated cable operator which is
providing cable service in that franchise area, but only if the video
programming services so offered in that area are comparable to the
video programming services provided by the unaffiliated cable operator
in that area.
* * * * *
10. Section 76.933 is amended by revising paragraphs (e) and (g)(5)
to read as follows:
Sec. 76.933 Franchising authority review of basic cable rates and
equipment costs.
* * * * *
(e) Notwithstanding paragraphs (a) through (d) of this section,
when the franchising authority is regulating basic service tier rates,
a cable operator that sets its rates pursuant to the quarterly rate
adjustment system pursuant to Sec. 76.922(d) may increase its rates for
basic service to reflect the imposition of, or increase in, franchise
fees or Commission cable television system regulatory fees imposed
pursuant to 47 U.S.C. 159. For the purposes of paragraphs (a) through
(c) of this section, the increased rate attributable to Commission
regulatory fees or franchise fees shall be treated as an ``existing
rate'', subject to subsequent review and refund if the franchising
authority determines that the increase in basic tier rates exceeds the
increase in regulatory fees or in franchise fees allocable to the basic
tier. This determination shall be appealable to the Commission pursuant
to Sec. 76.944. When the Commission is regulating basic service tier
rates pursuant to Sec. 76.945 or cable programming service rates
pursuant to Sec. 76.960, an increase in those rates resulting from
franchise fees or Commission regulatory fees shall be reviewed by the
Commission pursuant to the mechanisms set forth in Sec. 76.945. A cable
operator must adjust its rates to reflect decreases in franchise fees
or Commission regulatory fees within the periods set forth in
Sec. 76.922(d)(3)(i),(iii).
* * * * *
(g) * * *
(5) Notwithstanding paragraphs (a) through (f) of this section,
when the franchising authority is regulating basic service tier rates,
a cable operator may increase its rates for basic service to reflect
the imposition of, or increase in, franchise fees. The increased rate
attributable to Commission regulatory
[[Page 18979]]
fees or franchise fees shall be subject to subsequent review and refund
if the franchising authority determines that the increase in basic tier
rates exceeds the increase in regulatory fees or in franchise fees
allocable to the basic tier. This determination shall be appealable to
the Commission pursuant to Sec. 76.944. When the Commission is
regulating basic service tier rates pursuant to Sec. 76.945 or cable
programming service rates pursuant to Sec. 76.960, an increase in those
rates resulting from franchise fees or Commission regulatory fees shall
be reviewed by the Commission pursuant to the mechanisms set forth in
Sec. 76.945.
* * * * *
11. Section 76.950 is revised to read as follows:
Sec. 76.950 Complaints regarding cable programming service rates.
(a) A franchising authority may file with the Commission a
complaint challenging the reasonableness of its cable operator's rate
for cable programming service, or the reasonableness of the cable
operator's charges for installation or rental of equipment used for the
receipt of cable programming service. The franchise authority may file
a complaint with the Commission only upon receipt of more than one
subscriber complaint made to the franchise authority within 90 days
after the effective date of the challenged rate increase.
(b) The Commission shall not review any complaint with respect to
cable programming services filed after March 31, 1999.
12. Section 76.951 is revised to read as follows:
Sec. 76.951 Standard complaint form; other filing requirements.
(a) Any complaint regarding a cable operator's rate for cable
programming service or associated equipment must be filed using
standard complaint form, FCC 329.
(b) The following information must be provided on the standard
complaint form:
(1) The name, mailing address and phone number of the franchising
authority that is filing the complaint;
(2) The name, mailing address, and FCC community unit identifier of
the relevant cable operator;
(3) A description of the cable programming service or associated
equipment involved and, if applicable, how the service or associated
equipment has changed;
(4) The current rate for the cable programming service or
associated equipment at issue and, if the complainant is challenging
the reasonableness of a rate increase, the most recent rate for the
service or associated equipment immediately prior to the rate increase;
(5) If the complainant is filing a corrected complaint, an
indication of the date the complainant filed the prior complaint and
the date the complainant received notification from the Commission that
the prior complaint was defective;
(6) A certification that a copy of the complaint, including all
attachments, is being served contemporaneously via certified mail on
the cable operator;
(7) An indication that the complainant franchising authority
received more than one subscriber complaint within 90 days of the
operator's imposition of the rate in question; and
(8) A certification that, to the best of the complainant's
knowledge, the information provided on the form is true and correct.
13. Section 76.953 is amended by revising paragraph (a) to read as
follows:
Sec. 76.953 Limitation on filing a complaint.
(a) Complaint regarding a rate change. A complaint alleging an
unreasonable rate for cable programming service or associated equipment
may be filed against a cable operator only in the event of a rate
change, including an increase or decrease in rates, or a change in
rates that results from a change in a system's service tiers. A rate
change may involve an implicit rate increase (such as deleting channels
from a tier without a corresponding lowering of the rate for that
tier). A complaint regarding a rate change for cable programming
service or associated equipment may be filed against a cable operator
only in the event of a rate change.
* * * * *
14. Section 76.956 is amended by revising paragraph (a) to read as
follows:
Sec. 76.956 Cable operator response.
(a) Unless the Commission notifies a cable operator to the
contrary, the cable operator must file with the Commission a response
to the complaint filed on the applicable form, within 30 days of the
date of service of the complaint. The response shall indicate when
service occurred. Service by mail is complete upon mailing. See
Sec. 1.47(f) of this chapter. The response shall include the
information required by the appropriate FCC Form, including rate cards,
channel line-ups, and an explanation of any discrepancy in the figures
provided in these documents and the rate filing. The cable operator
must serve its response on the complainant via first class mail.
* * * * *
15. Section 76.964 is revised to read as follows:
Sec. 76.964 Written notification of changes in rates and services.
(a) In addition to the requirement of Sec. 76.309(c)(3)(i)(B)
regarding advance notification to customers of any changes in rates,
programming services or channel positions, cable systems shall give 30
days written notice to both subscribers and local franchising
authorities before implementing any rate or service change. Such notice
shall state the precise amount of any rate change and briefly explain
in readily understandable fashion the cause of the rate change (e.g.,
inflation, changes in external costs or the addition/deletion of
channels). When the change involves the addition or deletion of
channels, each channel added or deleted must be separately identified.
Notices to subscribers shall inform them of their right to file
complaints about changes in cable programming service tier rates and
services, shall state that the subscriber may file the complaint within
90 days of the effective date of the rate change, and shall provide the
address and phone number of the local franchising authority.
(b) To the extent the operator is required to provide notice of
service and rate changes to subscribers, the operator may provide such
notice using any reasonable means at its sole discretion.
(c) Notwithstanding any other provision of Part 76, a cable
operator shall not be required to provide prior notice of any rate
change that is the result of a regulatory fee, franchise fee, or any
other fee, tax, assessment, or charge of any kind imposed by any
Federal agency, State, or franchising authority on the transaction
between the operator and the subscriber.
16. Section 76.984 is amended by revising paragraph (c) to read as
follows:
Sec. 76.984 Geographically uniform rate structure.
* * * * *
(c) This section does not apply to:
(1) A cable operator with respect to the provision of cable service
over its cable system in any geographic area in which the video
programming services offered by the operator in that area are subject
to effective competition, or
(2) Any video programming offered on a per channel or per program
basis. Bulk discounts to multiple dwelling units shall not be subject
to this section, except that a cable operator of a cable system that is
not subject to effective
[[Page 18980]]
competition may not charge predatory prices to a multiple dwelling
unit. Upon a prima facie showing by a complainant that there are
reasonable grounds to believe that the discounted price is predatory,
the cable system shall have the burden of showing that its discounted
price is not predatory.
17. A new Sec. 76.1004 is added to subpart O to read as follows:
Sec. 76.1004 Applicability of program access rules to common carriers
and affiliates.
Any provision that applies to a cable operator under Secs. 76.1000
through 76.1003 shall also apply to a common carrier or its affiliate
that provides video programming by any means directly to subscribers.
Any such provision that applies to a satellite cable programming vendor
in which a cable operator has an attributable interest shall apply to
any satellite cable programming vendor in which such common carrier has
an attributable interest. For the purposes of this section, two or
fewer common officers or directors shall not by itself establish an
attributable interest by a common carrier in a satellite cable
programming vendor (or its parent company).
18. A new subpart R is added to read as follows:
Subpart R--Telecommunications Act implementation
Sec. 76.1400 Purpose.
Sec. 76.1401 Effective competition and local exchange carriers.
Sec. 76.1402 CPST rate complaints.
Sec. 76.1403 Small cable operators.
Sec. 76.1404 Use of cable facilities by local exchange carriers.
Subpart R--Telecommunications Act implementation
Sec. 76.1400 Purpose.
The rules and regulations set forth in this subpart provide
procedures for administering certain aspects of cable regulation. These
rules and regulations provide guidance for operators, subscribers and
franchise authorities with respect to matters that are subject to
immediate implementation under governing statutes but require specific
regulatory procedures or definitions.
Sec. 76.1401 Effective competition and local exchange carriers.
(a) As used in Sec. 76.905(b)(4), the term ``comparable''
programming means access to at least 12 channels of programming, at
least some of which are local television broadcasting signals.
(b) As used in Sec. 76.905(b)(4), the term ``affiliate'' means a
person that (directly or indirectly) owns or controls, is owned or
controlled by, or is under common ownership or control with another
person. For purposes of the section, the term ``own'' means to own an
equity interest (or the equivalent thereof) of more than 10 percent.
(c) An operator meeting the relevant criteria under
Sec. 76.905(b)(4), may, at any time, file a petition for a
determination of effective competition with the Commission. The
petition should set forth information supporting a determination that
effective competition exists as defined in Sec. 76.905(d)(4).
(d) Upon filing of a petition described in paragraph (c) of this
section with the Commission, the operator filing the petition shall
provide a copy of the petition to the local franchise authority. The
Commission will issue a public notice of the petition's filing to allow
interested parties to respond. The Commission may then issue an order
granting or denying the petition. The Commission may issue an order
directing one or more persons to produce information relevant to the
petition's disposition.
Sec. 76.1402 CPST rate complaints.
(a) A local franchise authority may file rate complaints with the
Commission within 180 days of the effective date of a rate increase on
the cable operator's cable programming services tier if within 90 days
of that increase the local franchise authority receives more than one
subscriber complaint concerning the increase.
(b) Before filing a rate complaint with the Commission, the local
franchise authority must first give the cable operator written notice,
including a draft FCC Form 329, of the local franchise authority's
intent to file the complaint. The local franchise authority must give
an operator a minimum of 30 days to file with the local franchise
authority the relevant FCC forms that must be filed to justify a rate
increase or, where appropriate, certification that the operator is not
subject to rate regulation. The operator must file a complete response
with the local franchise authority within the time period specified by
the local franchise authority. The local franchise authority shall file
with the Commission the complaint and the operator's response to the
Complaint. If the operator's response to the complaint asserts that the
operator is exempt from rate regulation, the operator's response can be
filed with the local franchise authority without filing specific FCC
Forms.
Sec. 76.1403 Small cable operators.
(a) Effective February 8, 1996, a small cable operator is exempt
from rate regulation on its cable programming services tier, or on its
basic service tier if that tier was the only service tier subject to
rate regulation as of December 31, 1994, in any franchise area in which
that operator services 50,000 or fewer subscribers.
(b) A small cable operator is an operator who, directly or through
an affiliate, serves in the aggregate fewer than 617,000 subscribers in
the United States and whose annual revenues, when combined with the
total annual revenues of all of its affiliates, do not exceed $250
million in the aggregate.
(c) As used in this section, an operator shall be deemed affiliated
with another entity if that entity holds a 20 percent or greater equity
interest, passive or active, in the operator or exercises de jure or de
facto control over the operator.
(d) Procedures. (1) If a small cable operator has only a single
tier that is subject to regulation, the operator, at any time, may
certify in writing to its local franchise authority that it meets all
criteria necessary to qualify as a small operator. Upon request of the
local franchising authority, the operator shall identify in writing all
of its affiliates that provide cable service, the total subscriber base
of itself and each affiliate, and the aggregate gross revenues of its
cable and non-cable affiliates. Within 90 days of receiving the
original certification, the local franchising authority shall determine
whether the operator qualifies for deregulation and shall notify the
operator in writing of its decision, although this 90-day period shall
be tolled for so long as it takes the operator to respond to a proper
request for information by the local franchising authority. If the
local franchising authority finds that the operator does not qualify
for deregulation, its notice shall state the grounds for that decision.
The operator may appeal the local franchising authority's decision to
the Commission within 30 days.
(2) Once the operator has certified its eligibility for
deregulation on the basic service tier, the local franchising authority
shall not prohibit the operator from taking a rate increase and shall
not order the operator to make any refunds unless and until the local
franchising authority has rejected the certification in a final order
that is no longer subject to appeal or that the Commission has
affirmed. The operator shall be liable for refunds for revenues gained
(beyond revenues that could be gained under regulation) as a result of
any rate increase taken during the period in which it claimed to be
deregulated, plus interest, in the event the operator is later
[[Page 18981]]
found not to be deregulated. The one-year limitation on refund
liability will not be applicable during that period to ensure that the
filing of an invalid small operator certification does not reduce any
refund liability that the operator would otherwise incur.
(3) Within 30 days of being served with a local franchising
authority's notice that the local franchising authority intends to file
a cable programming services tier rate complaint, an operator may
certify to the local franchising authority that it meets the criteria
for qualification as a small cable operator. This certification shall
be filed in accordance with the cable programming services rate
complaint procedure set forth in Sec. 76.1402. Absent a cable
programming services rate complaint, the operator need not file for
small cable operator certification in order to treat its cable
programming services tier as deregulated.
(4) If a pending CPST rate complaint was filed with the Commission
before April 30, 1996 the operator should file its certification of
small cable operator status directly with the Commission within 15 days
of that date.
Sec. 76.1404 Use of cable facilities by local exchange carriers.
For purposes of Sec. 76.505(d)(2), the Commission will determine
whether use of a cable operator's facilities by a local exchange
carrier is reasonably limited in scope and duration according to the
following procedures:
(a) Within 10 days of final execution of a contract permitting a
local exchange carrier to use that part of the transmission facilities
of a cable system extending from the last multi-user terminal to the
premises of the end use, the parties shall submit a copy of such
contract, along with an explanation of how such contract is reasonably
limited in scope and duration, to the Commission for review. The
parties shall serve a copy of this submission on the local franchising
authority, along with a notice of the local franchising authority's
right to file comments with the Commission consistent with Sec. 76.7.
(b) Based on the record before it, the Commission shall determine
whether the local exchange carrier's use of that part of the
transmission facilities of a cable system extending from the last
multi-use terminal to the premises of the end user is reasonably
limited in scope and duration. In making this determination, the
Commission will evaluate whether the proposed joint use of cable
facilities promotes competition in both services and facilities, and
encourages long-term investment in telecommunications infrastructure.
[FR Doc. 96-10173 Filed 4-26-96; 8:45 am]
BILLING CODE 6712-01-P
Complete official Federal Register PDF
FR Doc. 96-10104 National Oil and Hazardous Substances Pollution Contingency Plan National Priorities List
[Federal Register Volume 61, Number 84 (Tuesday, April 30, 1996)]
[Rules and Regulations]
[Page 18968]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-10104]
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[FRL-5461-3]
National Oil and Hazardous Substances Pollution Contingency Plan
National Priorities List
AGENCY: Environmental Protection Agency (EPA).
ACTION: Notice of Deletion Amnicola Dump Superfund Site Chattanooga,
Tennessee from the National Priorities List.
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SUMMARY: The Environmental Protection Agency (EPA) Region 4 announces
the deletion of the Amnicola Dump Superfund Site from the National
Priorities List (NPL), Appendix B of 40 CFR Part 300 which is the
National Oil and Hazardous Substances Pollution Contingency Plan (NCP).
EPA and the State have determined that all appropriate Fund-financed
responses under the Comprehensive Environmental Response, Compensation,
and Liability Act (CERCLA), as amended, have been implemented and that
no further cleanup is appropriate. Moveover, EPA and the State have
determined that remedial actions conducted at the site to date have
been protective of public health, welfare and the environment. This
deletion does not preclude future action under Superfund.
EFFECTIVE DATE: May 15, 1996.
FOR FURTHER INFORMATION CONTACT: Robert West, Remedial Project Manager,
U.S. Environmental Protection Agency, Region 4, North Superfund
Remedial Branch, 345 Courtland Street, N.E., Atlanta, Georgia 30365,
(404) 347-7791, extension 2033.
SUPPLEMENTARY INFORMATION: The Site to be deleted from the NPL is:
Amnicola Dump Superfund Site in Chattanooga, Tennessee.
A Notice of Intent to Delete for this site was published on
February 22, 1996, (FR-5436-5). The closing date for comments on the
Notice of Intent to Delete was March 22, 1996. EPA received no
comments.
EPA identifies sites that appear to present a significant risk to
the public health, welfare and the environment and it maintains the NPL
as the list of those sites. Any site deleted from the NPL remains
eligible for Fund-financed remedial actions in the future. Section
300.425(e)(3) of the NCP states that Fund-financed actions may be taken
at sites deleted from the NPL. Deletion of a site from the NPL does not
affect responsible party liability or impede agency efforts to recover
costs associated with response efforts.
List of Subjects in 40 CFR Part 300
Environmental protection, Air pollution control, Chemicals,
Hazardous Waste, Hazardous substances, Intergovernmental relations,
Penalties, Reporting and recordkeeping requirements, Superfund, Water
pollution control, and Water supply.
Dated: April 4, 1996
Phyllis P. Harris,
Acting Deputy Regional Administrator, U.S. EPA Region 4.
For reasons set out in the preamble, 40 CFR Part 300 is amended as
follows:
PART 300--[AMENDED]
The authority citation for Part 300 continues to read as follows:
Authority: 33 U.S.C. 1321(c)(2); 42 U.S.C. 9601-9657; E.O.
12777, 56 FR 54757, 3 CFR 1991 Comp., p 351; E.O. 12580, 52 FR 2923;
3 CFR, 1987 Comp., p. 193.
Appendix B--[Amended]
2. Table 1 of Appendix B to Part 300 is amended by removing the
Amnicola Dump Superfund Site, Chattanooga, Tennessee.
[FR Doc. 96-10104 Filed 4-29-96; 8:45 am]
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