issue-1996-07-24•Federal Register final rules — 1996-07-24
Federal Register final rules — 1996-07-24
issue-1996-07-24Federal Register final rules — 1996-07-24Regulation
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. X96-10724 Medicare Program; Qualified Health Maintenance Organizations
[Federal Register Volume 61, Number 143 (Wednesday, July 24, 1996)]
[Rules and Regulations]
[Page 38395]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: X96-10724]
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DEPARTMENT OF HEALTH AND HUMAN SERVICES
Health Care Financing Administration
42 CFR Part 417
[OMC-009-FC]
RIN 0938-AG92
Medicare Program; Qualified Health Maintenance Organizations
CFR Correction
In title 42 of the Code of Federal Regulations, parts 400 to 429,
revised as of October 1, 1995, on pages 587 through 599, Secs. 417.912
through 417.919, 417.921 through 417.926, 417.932, 417.933, 417.935,
and 417.936 were inadvertently published and should be removed.
BILLING CODE 1505-01-D
Complete official Federal Register PDF
FR Doc. 96-18790 Fisheries of the Northeastern United States; Summer Flounder Fishery; Commercial Quota Harvested for Delaware
[Federal Register Volume 61, Number 143 (Wednesday, July 24, 1996)]
[Rules and Regulations]
[Pages 38403-38404]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-18790]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 648
[Docket No. 951116270-5308-02; I.D. 071796A]
Fisheries of the Northeastern United States; Summer Flounder
Fishery; Commercial Quota Harvested for Delaware
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Commercial quota harvest.
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SUMMARY: NMFS issues this notification announcing that the summer
flounder commercial quota available to the State of Delaware has been
harvested. Vessels
[[Page 38404]]
issued a commercial Federal fisheries permit for the summer flounder
fishery may not land summer flounder in Delaware for the remainder of
calendar year 1996, unless additional quota becomes available through a
transfer. Regulations governing the summer flounder fishery require
publication of this notification to advise the State of Delaware that
the quota has been harvested and to advise vessel and dealer permit
holders that no commercial quota is available for landing summer
flounder in that state.
EFFECTIVE DATE: July 19, 1996, through December 31, 1996.
FOR FURTHER INFORMATION CONTACT: Regina Spallone, Fishery Policy
Analyst, 508-281-9221.
SUPPLEMENTARY INFORMATION: Regulations governing the summer flounder
fishery are found at 50 CFR part 648, Subparts A and G. The regulations
require annual specification of a commercial quota that is apportioned
among the states from North Carolina through Maine. The process to set
the annual commercial quota and the percent allocated to each state are
described in Sec. 648.100. Amendment 7 to the FMP (November 24, 1995,
60 FR 57955) revised the fishing mortality rate reduction schedule for
summer flounder, and the revised schedule was the basis for
establishing the 1996 quota. The total commercial quota for summer
flounder for the 1996 calendar year was adopted to ensure achievement
of the appropriate fishing mortality rate of 0.41 for 1996, and is set
equal to 11,111,298 pounds (5,040,000 kg) (January 4, 1996, 61 FR 291).
The percent allocated to vessels landing summer flounder in Delaware is
0.01779 percent or 1,977 pounds (897 kg).
Section 648.100(d)(2) provides that any overages of the commercial
quota landed in any state will be deducted from that state's annual
quota for the following year. In calendar year 1995, a total of 3,072
pounds (1,393 kg) were landed in Delaware. The amount allocated for
Delaware landings in 1995 was 2,614 pounds (1,186 kg), creating an
overage of 458 pounds (208 kg) that was deducted from the amount
allocated for landings in that state during 1996 (April 05, 1996, 61 FR
15199). The resulting quota for Delaware is 1,519 pounds (689 kg).
Section 648.101(b) requires the Regional Director, Northeast Region
(Regional Director) to monitor state commercial quotas and to determine
when a state commercial quota is harvested. The Regional Director is
further required to publish a notice in the Federal Register advising a
state and notifying Federal vessel and dealer permit holders that,
effective upon a specific date, the state's commercial quota has been
harvested and no commercial quota is available for landing summer
flounder in that state. Because the available information indicates
that Delaware has exceeded its quota for 1996, the Regional Director
has determined that the 1996 summer flounder quota allocations for
vessels landing in Delaware has been harvested.
The regulations at Sec. 648.4(b) provide that Federal permit
holders agree as a condition of the permit not to land summer flounder
in any state that the Regional Director has determined no longer has
commercial quota available. Therefore, effective 0001 hours July 19,
1996, further landings of summer flounder in Delaware by vessels
holding commercial Federal fisheries permits are prohibited for the
remainder of the 1996 calendar year, unless additional quota becomes
available through a transfer and is announced in the Federal Register.
Federally permitted dealers are also advised that they may not purchase
summer flounder from federally permitted vessels that land in Delaware
for the remainder of the calendar year, or until additional quota
becomes available, effective the date above.
Classification
This action is required by 50 CFR part 648 and is exempt from
review under E.O. 12866.
Authority: 16 U.S.C. 1801 et seq.
Dated: July 18, 1996.
Richard W. Surdi,
Acting Director, Office of Conservation and Management, National Marine
Fisheries Service.
[FR Doc. 96-18790 Filed 7-19-96; 12:26 pm]
BILLING CODE 3510-22-F
Complete official Federal Register PDF
FR Doc. 96-18789 Fisheries of the Northeastern United States; Framework Adjustment 8 Gear Restrictions
[Federal Register Volume 61, Number 143 (Wednesday, July 24, 1996)]
[Rules and Regulations]
[Pages 38404-38406]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-18789]
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DEPARTMENT OF COMMERCE
50 CFR Part 648
[Docket No. 950615156-6193-02; I.D. 070196C]
RIN 0648-AI02
Fisheries of the Northeastern United States; Framework Adjustment
8 Gear Restrictions
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Final rule.
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SUMMARY: NMFS issues this final rule to implement measures contained in
Framework Adjustment 8 to the Fishery Management Plan for the Atlantic
Sea Scallop Fishery (FMP). This rule expands the qualification criteria
for limited access vessels fishing under the scallop days-at-sea (DAS)
program to use trawl nets to include vessels with an engine of no
greater than 450 horsepower that have used a scallop dredge on no more
than 10 trips from January 1, 1988, through December 31, 1994.
Presently, only vessels that have not used a scallop dredge after
December 31, 1987, are qualified to use trawl nets to fish for
scallops. The intent of this action is to allow certain limited access
vessels that cannot practically use a dredge to fish for scallops to
use trawl nets.
EFFECTIVE DATE: July 19, 1996.
ADDRESSES: Copies of Amendment 4, its regulatory impact review, the
initial regulatory flexibility analysis, the final supplemental
environmental impact statement, and the supporting documents for
Framework Adjustments 5 and 8 are available from Douglas Marshall,
Executive Director, New England Fishery Management Council, Suntaug
Office Park, 5 Broadway (U.S. Route 1), Saugus, MA 01906-1097,
telephone 617-231-0422.
FOR FURTHER INFORMATION CONTACT: Paul H. Jones, Fishery Policy Analyst,
508-281-9273.
SUPPLEMENTARY INFORMATION:
Background
Amendment 4 to the FMP was implemented on March 1, 1994 (59 FR
2757, January 19, 1994). The amendment established controls on total
fishing effort through limited entry and a schedule of reductions in
allowable time at sea. Amendment 4 also included framework measures to
implement adjustments to the effort control and other additional
management measures considered necessary to meet the goals and
objectives of the FMP. Although the amendment was approved, NMFS raised
concerns about the level of protection of small sea scallops in its
approval letter to the New England Fishery Management Council
(Council).
Framework Adjustment 5 (60 FR 33757, June 29, 1995) prohibited
limited access scallop vessels from using trawl nets while fishing
under the scallop DAS program except for vessels that have not used a
scallop dredge after December 31, 1987. The intended effect of the
prohibition was to minimize the number of vessels that could fish for
scallops with trawl nets and to prevent scallop dredge vessels from
switching to trawl nets, a switch that would likely result in a
significant increase in the
[[Page 38405]]
harvest of small scallops in contravention of the FMP's objectives.
During the March 21, 1996, Scallop Oversight Committee meeting
several owners of vessels not meeting the qualification criteria asked
the Council to relax the criteria. The Committee reviewed NMFS' records
on scallop dredge/trawl trips and vessel horsepower and recommended
that the Council consider a framework adjustment to expand the
criteria.
Framework Adjustment 8 expands the number of vessels qualified to
fish for scallops with trawl nets by including limited access vessels
with an engine no greater than 450 horsepower that have fished for
scallops with a scallop dredge on no more than 10 trips from January 1,
1988, through December 31, 1994. The new criteria of no more than 10
trips and an engine horsepower of no greater than 450 are intended to
qualify only those vessels that may have towed or attempted to tow a
scallop dredge in the past, but could not practicably do so due to
their lack of sufficient engine horsepower and/or proper construction.
The number of such vessels is projected to be small, and, therefore,
allowing such vessels to fish for scallops with trawl nets is not
anticipated to have any significant impact on the stock.
All limited access scallop vessels not issued a letter of
authorization or a permit endorsed to fish for scallops with trawl nets
under the old criterion will be notified by NMFS of its determination,
based on information currently available to NMFS, as to whether the
vessel qualifies under the new criteria. If a vessel owner agrees with
NMFS' determination that the vessel is qualified and signs a
declaration, furnished by NMFS, to that effect, NMFS will issue the
vessel a letter of authorization to use trawl nets for the 1996-97
fishing year. If a vessel does not obtain a letter of authorization for
the 1996-97 fishing year, it loses its eligibility for subsequent
years. A permit endorsement will be the authorizing instrument in
future years.
Replacement vessels for vessels qualified under either the old
criterion or the additional criteria must themselves meet the
limitations on fishing for scallops with scallop dredges that the
vessel it is replacing met.
Supplemental rationale and analyses of expected biological effects,
economic impacts, impacts on employment, and safety concerns are
contained within the supporting documents for Framework Adjustments 5
and 8 (see ADDRESSES).
The Council requests publication of the management measures as a
final rule after considering the required factors stipulated in the
regulations governing the sea scallop fishery and providing supporting
analysis for each factor considered. The Director, Northeast Region,
NMFS, concurs with the Council's recommendation and has determined that
Framework Adjustment 8 should be published as a final rule.
NMFS is adjusting the scallop regulations following the procedure
for framework adjustments established by Amendment 4 and codified in 50
CFR part 648. The Council followed this procedure when making
adjustments to the FMP, by developing and analyzing the actions over
the span of a minimum of at least two Council meetings, on April 17,
1996, and June 6, 1996.
Comments and Responses
The April 17, 1996, Council meeting was the first of two meetings
that provided an opportunity for public comment on Framework Adjustment
8. A draft document containing the proposed management measures and
their rationale was available to the public on June 6, 1996, and mailed
to 260 people, including those serving as scallop industry advisors to
the Council. The final public hearing was held on June 6, 1996.
Testimony provided by industry members at the public hearing favored
the framework adjustment. Only one written comment was received by the
Council, which favored the framework adjustment.
Classification
This final rule has been determined to be not significant for
purposes of E.O. 12866.
This rule is implemented in compliance with all procedural
requirements established by the Administrative Procedure Act. The
Regional Director concurs with the Council's request for publication of
the management measures as a final rule after considering the required
factors stipulated under the procedure for framework adjustments in the
final rule for Amendment 4 and providing supporting analysis for each
factor considered. Public meetings held by the Council to discuss the
management measures implemented by this rule provided adequate
opportunity for public comment to be considered. Thus, the Assistant
Administrator for Fisheries, NOAA, finds there is good cause to waive
prior notice under 5 U.S.C. 553(b)(B). Under 5 U.S.C. 553(d)(1),
because this rule relieves a restriction by allowing some fishermen to
resume their traditional fishing method not available to them since
August 1, 1995, it is not subject to a 30-day delay in effective date.
List of Subjects in 50 CFR Part 648
Fisheries, Fishing, Reporting and recordkeeping requirements.
Dated: July 18, 1996.
Gary Matlock,
Program Management Officer, National Marine Fisheries Service.
For the reasons set out in the preamble, 50 CFR part 648 is amended
as follows:
PART 648--FISHERIES OF THE NORTHEASTERN UNITED STATES
1. The authority citation for part 648 continues to read as
follows:
Authority: 16 U.S.C. 1801 et seq.
2. In Sec. 648.51, paragraph (f) is revised to read as follows:
Sec. 648.51 Gear and crew restrictions.
* * * * *
(f) Restrictions on use of trawl nets--(1) Prohibition on use of
trawl nets. A vessel issued a limited access scallop permit fishing for
scallops under the scallop DAS allocation program may not fish with,
possess on board, or land scallops while in possession of, trawl nets
unless such vessel has on board a valid letter of authorization or
permit endorsed to fish for scallops with trawl nets.
(2) Eligibility to use trawl nets. (i) A vessel is eligible for a
letter of authorization or a permit endorsement to fish for scallops
with trawl nets if the vessel:
(A) Has not fished for scallops with a scallop dredge after
December 31, 1987, and, as of July 19, 1996, has a letter of
authorization or permit endorsed to fish for scallops with trawl nets;
(B) Has fished for scallops with a scallop dredge on no more than
10 trips from January 1, 1988, through December 31, 1994, has an engine
horsepower no greater than 450, and is eligible for or has been issued
a 1996 limited access scallop permit (if the vessel does not obtain a
letter of authorization or a permit endorsed to fish for scallops with
trawl nets for the 1996-97 scallop fishing year, the vessel shall not
be eligible under this provision for subsequent fishing years); or
(C) Is a replacement vessel for a vessel described in paragraph
(f)(2)(i)(A) or (B) of this section.
(ii) NMFS will contact the owners of all vessels with limited
access scallop permits that have not previously been issued a letter of
authorization or permit endorsed to fish for scallops with trawl nets
as to whether, based on information available to NMFS on July 19, 1996,
their vessels are eligible under paragraph (f)(2)(i)(B) of this section
for
[[Page 38406]]
a letter of authorization or permit endorsed to fish for scallops with
trawl nets. If a vessel owner agrees with NMFS' determination that the
vessel is eligible under paragraph (f)(2)(i)(B) of this section to fish
for scallops with trawl nets, the owner must, within 30 days of receipt
of the determination, sign and submit to NMFS a declaration, provided
by NMFS, stating that the vessel has fished for scallops with a scallop
dredge on no more than 10 trips from January 1, 1988, through December
31, 1994, and has an engine with no greater than 450 horsepower. The
signed declaration shall serve as a rebuttable presumption that the
vessel qualifies for a letter of authorization or permit endorsement to
fish for scallops with trawl nets. Any replacement vessel must meet the
limitations on fishing for scallops with scallop dredges that the
vessel it is replacing met. The letter of authorization or permit
endorsement must be requested by the vessel owner at the time the
vessel owner initially applies for a permit for the replacement vessel.
[FR Doc. 96-18789 Filed 7-19-96; 12:51 pm]
BILLING CODE 3510-22-F
Complete official Federal Register PDF
FR Doc. 96-18788 Fisheries of the Exclusive Economic Zone off Alaska; Salmon Donation Program
[Federal Register Volume 61, Number 143 (Wednesday, July 24, 1996)]
[Rules and Regulations]
[Pages 38357-38360]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-18788]
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[[Page 38358]]
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
15 CFR Part 902
50 CFR Part 679
[Docket No. 960503125-6191-02; I.D. 040996A]
RIN 0648-AH03
Fisheries of the Exclusive Economic Zone off Alaska; Salmon
Donation Program
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Final rule.
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SUMMARY: NMFS issues a final rule to implement Amendment 26 to the
Fishery Management Plan (FMP) for the Groundfish Fishery of the Bering
Sea and Aleutian Islands Area and Amendment 29 to the Fishery
Management Plan for Groundfish of the Gulf of Alaska. This rule
authorizes a voluntary Salmon Donation Program (SDP) for distribution
of Pacific salmon taken as bycatch in the groundfish trawl fisheries
off Alaska to economically disadvantaged individuals by tax-exempt
organizations through a NMFS-authorized distributor. This action is
necessary to support industry initiatives to reduce waste from discard
in the groundfish fisheries by processing salmon bycatch for human
consumption. This action is intended to promote the goals and
objectives of the FMPs that govern the commercial groundfish fisheries
off Alaska.
EFFECTIVE DATE: July 19, 1996.
ADDRESSES: Copies of Amendments 26 and 29 and the Environmental
Assessment/Regulatory Impact Review (EA/RIR) prepared for the
amendments may be obtained from the North Pacific Fishery Management
Council, Suite 306, 605 West 4th Ave., Anchorage, AK 99510-2252;
telephone: 907-271-2809. Send comments regarding burden estimates or
any other aspect of the data requirements, including suggestions for
reducing the burdens, to Susan J. Salveson, Fisheries Management
Division, Alaska Region, NMFS, P.O. Box 21668, Juneau, AK 99802.
FOR FURTHER INFORMATION CONTACT: Susan J. Salveson, 907-586-7228.
SUPPLEMENTARY INFORMATION: Fishing for groundfish by U.S. vessels in
the exclusive economic zone of the Gulf of Alaska (GOA) and Bering Sea
and Aleutian Islands management area (BSAI) is managed by NMFS
according to the respective FMPs for the groundfish fisheries of the
GOA and BSAI. The FMPs were prepared by the North Pacific Fishery
Management Council under the Magnuson Fishery Conservation and
Management Act (16 U.S.C. 1801, et seq.) (Magnuson Act) and are
implemented by regulations governing the U.S. groundfish fisheries at
50 CFR part 679.
This action implements regulations authorized under Amendments 26
and 29 to the FMPs. These amendments were approved by NMFS on July 10,
1996, and authorize the distribution of Pacific salmon taken
incidentally in the groundfish trawl fisheries off Alaska to
economically disadvantaged individuals by tax-exempt organizations
through a NMFS-authorized distributor. The SDP's objective is to reduce
waste from discards in the groundfish trawl fisheries.
Under this final rule, the Director, Alaska Region, NMFS (Regional
Director) will select one or more tax-exempt organizations to be
authorized distributors based on the information submitted by
applicants under Sec. 679.26. After review of qualified applicants,
NMFS will announce the selection of authorized distributor(s) in the
Federal Register. NMFS anticipates that the selection process of (an)
authorized distributor(s) will be completed prior to the beginning of
the 1996 BSAI pollock nonroe season. Any vessel or processor wishing to
retain and process salmon bycatch for delivery to an authorized
distributor selected by NMFS must be listed by the authorized
distributor as a participant. Any costs resulting from the handling,
processing, storing, and delivery of donated salmon to an authorized
distributor will be borne by participating vessels and processors.
Participation in the SDP is voluntary.
A full description of, and background information on, the SDP may
be found in the preamble to the proposed rule published in the Federal
Register on May 16, 1996 (61 FR 24750) and in the EA/RIR prepared for
this action. Public comment on the proposed rule was invited through
July 1, 1996. The U.S. Coast Guard commented that no enforcement or
safety concerns would result from the proposed SDP. No other written
comments were received during the comment period.
No changes to the proposed rule are made in the final rule except
to incorporate the regulatory format into the new consolidated
regulations governing the fisheries in Federal waters off Alaska (50
CFR part 679).
Classification
The Regional Director has determined that Amendments 26 and 29 are
necessary for the conservation and management of the groundfish
fisheries of the BSAI and the GOA and that they are consistent with the
Magnuson Act and other applicable laws.
This rule has been determined to be not significant for the
purposes of E.O. 12866.
The Assistant General Counsel for Legislation and Regulation of the
Department of Commerce certified to the Chief Counsel for Advocacy of
the Small Business Administration that this rule would not have a
significant economic impact on a substantial number of small entities.
The reasons were published in the notice of proposed rulemaking. As a
result, a regulatory flexibility analysis was not prepared.
Notwithstanding any other provision of law, no person is required
to respond to nor shall a person be subject to a penalty for failure to
comply with a collection of information subject to the requirements of
the Paperwork Reduction Act (PRA) unless that collection of information
displays a currently valid Office of Management and Budget (OMB)
control number.
This rule contains a collection-of-information requirements subject
to the PRA. The collection of this information has been approved by the
OMB, Control Number 0648-0316. The rule includes an application to
participate as an authorized distributor in the SDP, documentation
requirements for the authorized distributor(s) and processors
participating in the SDP, packaging requirements for vessels and
processors, and identification requirements. Public reporting burden
for these collections of information are estimated to average 40, 40,
0.1, and 0.25 hours respectively, per response, including the time for
reviewing instructions, searching existing data sources, gathering and
maintaining the data needed, and completing and reviewing the
collections of information. Send suggestions regarding burden estimates
or any other aspect of the data requirements, including suggestions for
reducing the burdens to Susan J. Salveson (see ADDRESSES) and to the
Office of Information and Regulatory Affairs, OMB, Washington, D.C.
20503, Attn: NOAA Desk Officer.
NMFS has determined that this final rule should be effective
immediately to provide adequate time for tax-exempt organizations to
apply to NMFS to become authorized distributors and for NMFS to review
applications, to issue
[[Page 38359]]
SDP permits to authorized distributors, and to notify the public in the
Federal Register of authorized distributors prior to the beginning of
the 1996 BSAI pollock nonroe season, currently scheduled for August 15.
An infrastructure has been developed over the past 2 years to provide
for the distribution of donated salmon taken incidentally in the BSAI
pollock fishery to needy individuals under authority of three
successive experimental fishing permits (EFPs). The last EFP expired at
the end of the 1996 pollock roe season. The infrastructure for the
distribution of donated salmon could be jeopardized if a hiatus occurs
in the authority to retain and donate salmon during the upcoming
pollock nonroe season. Therefore, the need to implement the final rule
in a timely manner to provide adequate time to select authorized
distributors prior to the 1996 pollock nonroe season and avoid a hiatus
and the fact that participation in the SDP is voluntary constitute good
cause under authority contained in 5 U.S.C. 553(d)(3) to make this rule
effective immediately.
List of Subjects
15 CFR Part 902
Reporting and recordkeeping requirements.
50 CFR Part 679
Fisheries, Reporting and recordkeeping requirements.
Dated: July 18, 1996.
Gary Matlock,
Program Management Officer, National Marine Fisheries Service.
For the reasons set out in the preamble, 15 CFR chapter IX and 50
CFR chapter VI are amended as follows:
15 CFR Chapter IX
PART 902--NOAA INFORMATION COLLECTION REQUIREMENTS UNDER THE
PAPERWORK REDUCTION ACT: OMB CONTROL NUMBERS
1. The authority citation for part 902 continues to read as
follows:
Authority: 44 U.S.C. 3501 et seq.
2. In Sec. 902.1, paragraph (b), the table is amended by adding, in
numerical order, the following entry to read as follows:
Sec. 902.1 OMB control numbers assigned pursuant to the Paperwork
Reduction Act.
* * * * *
(b) * * *
------------------------------------------------------------------------
Current OMB
control
CFR part or section where the information collection number (all
requirement is located numbers
begin with
0648-)
------------------------------------------------------------------------
* * * * *
50 CFR
* * * * *
679.26..................................................... 0316
* * * * *
------------------------------------------------------------------------
50 CFR Chapter VI
PART 679--FISHERIES OF THE EXCLUSIVE ECONOMIC ZONE OFF ALASKA
3. The authority citation for part 679 continues to read as
follows:
Authority: 16 U.S.C. 773 et seq., 1801 et seq.
4. In Sec. 679.2, the definitions of ``Authorized distributor'',
``Food bank distributor'', ``Food bank network'', ``Hunger relief
agency'', ``SDP'', ``SDP permit'', and ``Tax-exempt Organization'' are
added, in alphabetical order, to read as follows:
Sec. 679.2 Definitions.
* * * * *
Authorized distributor means a tax-exempt organization authorized
by NMFS to coordinate the processing, storage, transportation, and
distribution of salmon taken as bycatch in the groundfish trawl
fisheries to tax-exempt hunger relief agencies, food bank networks, and
food bank distributors.
* * * * *
Food bank distributor means a tax-exempt organization with the
primary purpose of distributing food resources to hunger relief
agencies.
Food bank network means a tax-exempt organization with the primary
purpose of coordinating receipt and delivery of food resources to its
member food bank distributors or hunger relief agencies.
* * * * *
Hunger relief agency means a tax-exempt organization with the
primary purpose of feeding economically disadvantaged individuals free
of charge.
* * * * *
SDP means the Salmon Donation Program established under this
section.
SDP permit means a permit issued by NMFS to an applicant who
qualifies as an authorized distributor for purposes of the SDP.
* * * * *
Tax-exempt organization means an organization that received a
determination letter from the Internal Revenue Service recognizing tax
exemption under 26 CFR part 1 (Secs. 1.501 to 1.640).
* * * * *
5. In Sec. 679.7, paragraph (a)(12) is added to read as follows:
Sec. 679.7 Prohibitions.
* * * * *
(a) * * *
(12) Salmon donation program. Retain or possess salmon, except as
permitted to do so under the Salmon Donation Program as provided by
Sec. 679.26, or as authorized by other applicable law.
* * * * *
6. In Sec. 679.21, paragraphs (b)(2)(ii) and (c)(1) are revised to
read as follows:
Sec. 679.21 Prohibited species bycatch management.
* * * * *
(b) * * *
(2) * * *
(ii) Sort its catch as soon as possible after retrieval of the gear
and, except as provided under paragraph (c) of this section or
Sec. 679.26, must return all prohibited species or parts thereof to the
sea immediately, with a minimum of injury, regardless of its condition,
after allowing for sampling by an observer if an observer is aboard.
* * * * *
(c) * * * (1) Salmon discard. Except as provided in paragraph
(c)(3) of this section, the operator of a vessel and the manager of a
shoreside processor must not discard any salmon or transfer or process
any salmon under the SDP at Sec. 679.26, if the salmon were taken
incidental to a directed fishery for BSAI groundfish by vessels using
trawl gear until the number of salmon has been determined by a NMFS-
certified observer and the collection of any scientific data or
biological samples from the salmon has been completed.
* * * * *
7. Section 679.26 is added to Subpart B to read as follows:
Sec. 679.26 Salmon Donation Program.
(a) Authorized distributors--(1) Application. An applicant seeking
to become an authorized distributor must provide the Regional Director
with the following information:
(i) Proof of the applicant's tax-exempt status.
(ii) A description of the arrangements for processing, shipping,
storing, and transporting donated salmon and an estimate of the
associated costs.
(iii) A statement describing the applicant's expertise in providing
for the distribution of food product from remote Alaskan locations to
hunger
[[Page 38360]]
relief agencies, food bank networks, or food bank distributors,
including arrangements for transportation, distribution costs, and
product quality control.
(iv) Documentation of support from cold storage and transportation
facilities.
(v) A proposed operating budget that is adequate to ensure that
salmon donated under this program will be distributed to hunger relief
agencies, food bank networks, or food bank distributors and that the
salmon will be maintained in a manner fit for human consumption.
(vi) Proof of the applicant's ability to obtain and maintain
adequate funding for the distribution of salmon under the SDP.
(vii) A copy of the applicant's articles of incorporation and
bylaws showing that the purpose of the applicant includes providing
food resources to hunger relief agencies, food bank networks, or food
bank distributors.
(viii) Proof of the applicant's ability to take full responsibility
for the documentation and disposition of salmon received under the SDP,
including sufficient liability insurance to cover public interests
relating to the quality of salmon distributed for human consumption.
(ix) Quality control criteria to be followed by vessels,
processors, hunger relief agencies, food bank networks, and food bank
distributors.
(x) The number of vessels and processors that the applicant is
capable of administering effectively.
(xi) A list of all vessels and processors, food bank networks and
food bank distributors participating in the SDP. The list of vessels
and processors must include:
(A) The vessel's or processor's Federal fisheries permit number or
Federal processor permit number.
(B) The name of the vessel owner or responsible operator or the
name of the owner or plant manager of the processor.
(C) The vessel's or processor's telephone number and fax number.
(D) The signature of the vessel owner or responsible operator or
the owner or plant manager of the processor.
(xii) A signed statement from the applicant and all persons listed
under paragraph (a)(1)(xi) of this section who would conduct activities
pursuant to the SDP permit waiving any and all claims against the
United States and its agents and employees for any liability for
personal injury, death, sickness, damage to property directly or
indirectly due to activities conducted under the SDP.
(xiii) A list of locations where salmon must be delivered by
participating vessels and processors.
(2) Selection. The Regional Director may select one or more tax-
exempt organizations to be authorized distributors under the SDP based
on the information submitted by applicants under paragraph (a)(1) of
this section. The number of authorized distributors selected by the
Regional Director will be based on the following criteria:
(i) The number and qualifications of applicants for SDP permits.
(ii) The number of harvesters and the quantity of salmon that
applicants can effectively administer.
(iii) The anticipated level of salmon bycatch based on the salmon
bycatch from previous years.
(iv) The potential number of vessels and processors participating
in the groundfish trawl fisheries.
(3) SDP Permit. (i) After review of qualified applicants, the
Regional Director will announce the selection of authorized
distributor(s) in the Federal Register and will issue SDP permit(s).
(ii) The Regional Director may impose additional terms and
conditions on an SDP permit consistent with the objectives of the SDP.
(iii) An SDP permit may be suspended, modified, or revoked under 15
CFR part 904 for noncompliance with terms and conditions specified in
the permit or for a violation of this section or other regulations in
this part.
(iv) An SDP permit remains in effect for a 3-year period after the
selection notice is published in the Federal Register unless suspended
or revoked. An SDP permit may not be transferred. An SDP permit issued
to an authorized distributor may be renewed following the application
procedures in this section.
(v) If the authorized distributor modifies any information on the
SDP permit application submitted under paragraph (a)(1)(xi) or
(a)(1)(xiii) of this section, the authorized distributor must submit a
modified list of participants or a modified list of delivery locations
to the Regional Director.
(b) Reporting and Recordkeeping Requirements. (1) A vessel or
processor retaining salmon under the SDP must comply with all
applicable recordkeeping and reporting requirements. A vessel or
processor participating in the SDP must comply with applicable
regulations at Secs. 679.7(c)(2), and 679.21(c) that allow for the
collection of data and biological sampling by an NMFS-certified
observer prior to processing any salmon under the SDP.
(2) Salmon retained under the SDP must be packaged, and all
packages must be labeled with the date of processing, the name of the
processing facility, the contents and the weight of the salmon
contained in the package and the words, ``NMFS SALMON DONATION
PROGRAM--NOT FOR SALE--PERISHABLE PRODUCT--KEEP FROZEN''.
(3) A processor retaining or receiving salmon under the SDP and an
authorized distributor must keep on file and make available for
inspection by an authorized officer all documentation including receipt
and cargo manifests setting forth the origin, weight, and destination
of all salmon. Such documentation must be retained until 1 year after
the effective period of the SDP permit.
(c) Processing, handling, and distribution. (1) Processing and
reprocessing of all salmon retained under the SDP must be carried out
under the direction of the authorized distributor. A processor
retaining or receiving salmon under the SDP, at a minimum, must head,
gut, and freeze the salmon in a manner that makes it fit for human
consumption.
(2) Salmon that are determined to be unfit for human consumption
prior to delivery to an authorized distributor must be discarded under
Sec. 679.21(b). Salmon that are determined to be unfit for human
consumption after delivery to the authorized distributor must be
destroyed in accordance with applicable sanitation laws and
regulations.
(3) Authorized distributors and persons conducting activities
supervised by authorized distributors may retain salmon only for the
purpose of processing and delivering the salmon to hunger relief
agencies, food networks or food distributors as provided by this
section. Such persons may not consume or retain salmon for personal use
and may not sell, trade or barter, or attempt to sell, trade or barter
any salmon that is retained under the SDP.
(4) No salmon bycatch may be retained by a vessel or processor, or
delivered to a delivery location under this section, unless the vessel
or processor and delivery location is included on the list provided to
the Regional Director under paragraph (a)(1)(xi), (a)(1)(xiii), or
(a)(3)(v) of this section.
[FR Doc. 96-18788 Filed 7-19-96; 2:23 pm]
BILLING CODE 3510-22-W
Complete official Federal Register PDF
FR Doc. 96-18754 Mexican Fruit Fly Regulations; Removal of Regulated Area
[Federal Register Volume 61, Number 143 (Wednesday, July 24, 1996)]
[Rules and Regulations]
[Pages 38353-38354]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-18754]
========================================================================
Rules and Regulations
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains regulatory documents
having general applicability and legal effect, most of which are keyed
to and codified in the Code of Federal Regulations, which is published
under 50 titles pursuant to 44 U.S.C. 1510.
The Code of Federal Regulations is sold by the Superintendent of Documents.
Prices of new books are listed in the first FEDERAL REGISTER issue of each
week.
========================================================================
Federal Register / Vol. 61, No. 143 / Wednesday, July 24, 1996 /
Rules and Regulations
[[Page 38353]]
DEPARTMENT OF AGRICULTURE
Animal and Plant Health Inspection Service
7 CFR Part 301
[Docket No. 96-053-1]
Mexican Fruit Fly Regulations; Removal of Regulated Area
AGENCY: Animal and Plant Health Inspection Service, USDA.
ACTION: Interim rule and request for comments.
-----------------------------------------------------------------------
SUMMARY: We are amending the regulations to remove the quarantined
portion of San Diego County, CA, from the list of areas regulated
because of the Mexican fruit fly. We have determined that the Mexican
fruit fly has been eradicated from San Diego County, CA, and that
restrictions on the interstate movement of regulated articles from San
Diego County, CA, are no longer necessary to prevent the spread of the
Mexican fruit fly into noninfested areas of the United States. This
action relieves unnecessary restrictions on the interstate movement of
regulated articles from the previously regulated area.
DATES: Interim rule effective July 19, 1996. Consideration will be
given only to comments received on or before September 23, 1996.
ADDRESSES: Please send an original and three copies of your comments to
Docket No. 96-053-1, Regulatory Analysis and Development, PPD, APHIS,
suite 3C03, 4700 River Road Unit 118, Riverdale, MD 20737-1238. Please
state that your comments refer to Docket No. 96-053-1. Comments
received may be inspected at USDA, room 1141, South Building, 14th
Street and Independence Avenue SW., Washington, DC, between 8 a.m. and
4:30 p.m., Monday through Friday, except holidays. Persons wishing to
inspect comments are requested to call ahead on (202) 690-2817 to
facilitate entry into the comment reading room.
FOR FURTHER INFORMATION CONTACT: Mr. Michael B. Stefan, Operations
Officer, Domestic and Emergency Operations, PPQ, APHIS, 4700 River Road
Unit 134, Riverdale, MD 20737-1236, (301) 734-8247; or e-mail:
[email protected].
SUPPLEMENTARY INFORMATION:
Background
The Mexican fruit fly, Anastrepha ludens (Loew), is a destructive
pest of citrus and other types of fruit. The short life cycle of the
Mexican fruit fly allows rapid development of serious outbreaks that
can cause severe economic losses in commercial citrus-producing areas.
The Mexican fruit fly regulations, contained in 7 CFR 301.64 through
301.64-10 (referred to below as the regulations), quarantine infested
States, designate regulated areas, and restrict the interstate movement
of specified fruits and other regulated articles from regulated areas
in order to prevent the spread of the Mexican fruit fly to noninfested
areas of the United States. Quarantined States are listed in
Sec. 301.64(a), and regulated areas are listed in Sec. 301.64-3(c).
In an interim rule effective January 22, 1996, and published in the
Federal Register on January 26, 1996 (61 FR 2391-2393, Docket No. 95-
089-1), we quarantined the State of California and designated portions
of Los Angeles County and San Diego County as regulated areas because
those areas had been found to be infested with the Mexican fruit fly.
Based on insect trapping surveys by inspectors of California State
and county agencies and by inspectors of the Animal and Plant Health
Inspection Service, we have determined that the Mexican fruit fly has
been eradicated from San Diego County, CA. The last finding of Mexican
fruit fly thought to be associated with the infestation in this area
was made on January 9, 1996.
Since then no evidence of Mexican fruit fly infestations has been
found in this area. Therefore, we are removing this area from the list
of areas in Sec. 301.64-3(c) regulated because of the Mexican fruit
fly.
Immediate Action
The Administrator of the Animal and Plant Health Inspection Service
has determined that there is good cause for publishing this interim
rule without prior opportunity for public comment. Immediate action is
warranted to remove unnecessary restrictions on the public. The area in
California affected by this document was regulated due to the
possibility that the Mexican fruit fly could be spread to noninfested
areas of the United States. Since this situation no longer exists, the
continued regulated status of this area would impose unnecessary
restrictions.
Because prior notice and other public procedures with respect to
this action are contrary to the public interest under these conditions,
we find good cause under 5 U.S.C. 553 to make it effective upon
signature. We will consider comments that are received within 60 days
of publication of this rule in the Federal Register. After the comment
period closes, we will publish another document in the Federal
Register. It will include a discussion of any comments we receive and
any amendments we are making to the rule as a result of the comments.
Executive Order 12866 and Regulatory Flexibility Act
This rule has been reviewed under Executive Order 12866. For this
action, the Office of Management and Budget has waived its review
process required by Executive Order 12866.
This rule removes restrictions on the interstate movement of
regulated articles from a portion of San Diego County, CA. Within this
regulated area, there are 101 small entities that may be affected by
this rule. These include 1 grower on two-tenths of an acre, 93 fruit
sellers, and 4 nurseries. These 101 entities comprise less than 1
percent of the total number of similar enterprises operating in the
State of California.
These small entities sell regulated articles primarily for local
intrastate, not interstate movement, and the distribution of these
articles was not affected by the regulatory provisions we are removing.
Many of these entities also handle other items in addition to the
previously regulated articles. The effect on those few entities that
move regulated articles interstate was minimized by the availability of
various treatments that, in most cases, allowed
[[Page 38354]]
these small entities to move regulated articles interstate with very
little additional cost. Therefore, the effect, if any, of this rule on
these entities appears to be minimal.
Under these circumstances, the Administrator of the Animal and
Plant Health Inspection Service has determined that this action will
not have a significant economic impact on a substantial number of small
entities.
Executive Order 12372
This program/activity is listed in the Catalog of Federal Domestic
Assistance under No. 10.025 and is subject to Executive Order 12372,
which requires intergovernmental consultation with State and local
officials. (See 7 CFR part 3015, subpart V.)
Executive Order 12988
This rule has been reviewed under Executive Order 12988, Civil
Justice Reform. This rule: (1) Preempts all State and local laws and
regulations that are inconsistent with this rule; (2) has no
retroactive effect; and (3) does not require administrative proceedings
before parties may file suit in court challenging this rule.
Paperwork Reduction Act
This document contains no new information collection or
recordkeeping requirements under the Paperwork Reduction Act of 1995
(44 U.S.C. 3501 et seq.).
List of Subjects in 7 CFR Part 301
Agricultural commodities, Plant diseases and pests, Quarantine,
Reporting and recordkeeping requirements, Transportation.
Accordingly, 7 CFR part 301 is amended as follows:
PART 301--DOMESTIC QUARANTINE NOTICES
1. The authority citation for part 301 continues to read as
follows:
Authority: 7 U.S.C. 150bb, 150dd, 150ee, 150ff, 161, 162, and
164-167; 7 CFR 2.22, 2.80, and 371.2(c).
Sec. 301.64-3 [Amended]
2. In Sec. 301.64-3, paragraph (c) is amended by removing the
description of the regulated area for San Diego County, CA.
Done in Washington, DC, this 19th day of July 1996.
Terry L. Medley,
Administrator, Animal and Plant Health Inspection Service.
[FR Doc. 96-18754 Filed 7-23-96; 8:45 am]
BILLING CODE 3410-34-P
Complete official Federal Register PDF
FR Doc. 96-18723 Automatic Vehicle Monitoring: Correction
[Federal Register Volume 61, Number 143 (Wednesday, July 24, 1996)]
[Rules and Regulations]
[Page 38403]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-18723]
-----------------------------------------------------------------------
FEDERAL COMMUNICATIONS COMMISSION
47 CFR Part 90
[PR Docket No. 93-61, DA 96-836]
Automatic Vehicle Monitoring: Correction
AGENCY: Federal Communications Commission.
ACTION: Correction to final rule.
-----------------------------------------------------------------------
SUMMARY: This Erratum contains corrections to one of the final rules
adopted in Amendment of Part 90 of the Commission's Rules to Adopt
Regulations for Automatic Vehicle Monitoring Systems, Order on
Reconsideration, which was published Tuesday, April 30, 1996 (61 FR
18981). The rule deals with frequency stability.
EFFECTIVE DATE: August 23, 1996.
FOR FURTHER INFORMATION CONTACT: Jane Hinckley Halprin, Wireless
Telecommunications Bureau, Commercial Wireless Division, (202) 418-
0620.
SUPPLEMENTARY INFORMATION:
Background
This erratum corrects Section 90.213 of the Commission's rules, 47
CFR Sec. 90.213, as modified in Amendment of Part 90 of the
Commission's Rules to Adopt Regulations for Automatic Vehicle
Monitoring Systems, Order on Reconsideration, PR Docket No. 93-61, FCC
96-115 (released March 21, 1996), 61 FR 18981 (April 30, 1996). This
rule, which deals with frequency stability, was published with a
clerical error.
Need for Correction
As published, this final rule contains an error that may prove to
be misleading and is in need of clarification.
Correction of Publication
Accordingly, the publication on April 30, 1996 of final rules in PR
Docket No. 93-61, which were the subject of FR Doc. 96-10498, is
corrected as follows:
Sec. 90.213 [Corrected]
On page 18986, in the first column of the table, in section 90.213,
in the text of note 13, the phrase ``operating within 40 kHz from the
band edge'' is corrected to read ``with an authorized bandwidth that is
more than 40 kHz from the band edge''.
Federal Communications Commission.
David L. Furth,
Chief, Commercial Wireless Division, Wireless Telecommunications
Bureau.
[FR Doc. 96-18723 Filed 7-23-96; 8:45 am]
BILLING CODE 6712-01-M-P
Complete official Federal Register PDF
FR Doc. 96-18694 Pipeline Safety Program Procedures; Update and Corrections; Correction
[Federal Register Volume 61, Number 143 (Wednesday, July 24, 1996)]
[Rules and Regulations]
[Page 38403]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-18694]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF TRANSPORTATION
Research and Special Programs Administration
49 CFR Parts 190, 192 and 198
[Docket No. PS 145; Amdt. Nos. 190-6; 191-10; 192-75; 193-10; 195-55;
198-2; 199-13]
RIN 2137-AC79
Pipeline Safety Program Procedures; Update and Corrections;
Correction
AGENCY: Research and Special Programs Administration (RSPA), DOT.
ACTION: Correction to final regulations.
-----------------------------------------------------------------------
SUMMARY: This document contains corrections to the final regulations
(PS-145) updating and correcting pipeline safety program procedures
which were published Friday, April 26, 1996, (61 FR 18512) in the
Federal Register.
EFFECTIVE DATE: July 24, 1996.
FOR FURTHER INFORMATION CONTACT: L.E. Herrick at 202-366-5523 or online
at [email protected].
SUPPLEMENTARY INFORMATION:
Background
The final regulations that are the subject of these corrections
updated and corrected pipeline safety program procedures by amending
nomenclature, addresses, typographical errors, and penalty amounts.
These editorial amendments imposed no new procedural requirements.
Need for Correction
The final regulations contained four errors. The amendment number
for Part 192, Amdt. 192-74, was previously assigned to the final rule
in Docket No. PS-135. The next number in the series of amendments to
Part 192 should be Amdt. 192-75. In Sec. 190.205, the word ``owner''
was omitted. The amount in Sec. 190.223(a) should be ``$25,000''. And,
in Sec. 198.35, the citation should be ``49 U.S.C. 60101 et seq.''
Correction of Publication
Accordingly, the publication on April 26, 1996, of the final
regulations (PS-145), which was the subject of FR Doc. 96-10282, is
corrected as follows:
1. On page 18512, in the first column, in the heading, the
amendment number ``192-74'' is corrected to read ``192-75''.
2. On page 18513, third column, Sec. 190.205 is corrected to read
as follows:
Sec. 190.205 Warning letters.
Upon determining that a probable violation of 49 U.S.C. 60101 et
seq. or any regulation or order issued thereunder has occurred, the
Associate Administrator, OPS, may issue a Warning Letter notifying the
owner or operator of the probable violation and advising the owner or
operator to correct it or be subject to enforcement action under
Secs. 190.207 through 190.235.
Sec. 190.223 [Corrected]
3. On page 18515, first column, in Sec. 190.223(a) the figure
``$10,000'' is corrected to read ``$25,000''.
4. On Page 18518, second column, Sec. 198.35 is corrected to read
as follows:
Sec. 198.35 Grants conditioned on adoption of one-call damage
prevention program.
In allocating grants to State agencies under the pipeline safety
laws, (49 U.S.C. 60101 et seq.), the Secretary considers whether a
State has adopted or is seeking to adopt a one-call damage prevention
program in accordance with Sec. 198.37. If a State has not adopted or
is not seeking to adopt such program, the State agency may not receive
the full reimbursement to which it would otherwise be entitled.
Issued in Washington, DC. on June 24, 1996.
Kelley S. Coyner,
Deputy Administrator, Research and Special Programs Administration.
[FR Doc. 96-18694 Filed 7-23-96; 8:45 am]
BILLING CODE 4910-60-P
Complete official Federal Register PDF
FR Doc. 96-18659 South Dakota: Final/Interim Authorization of State Hazardous Waste Management Program Revisions
[Federal Register Volume 61, Number 143 (Wednesday, July 24, 1996)]
[Rules and Regulations]
[Pages 38392-38395]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-18659]
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 271
[FRL-5534-2]
South Dakota: Final/Interim Authorization of State Hazardous
Waste Management Program Revisions
AGENCY: Environmental Protection Agency.
ACTION: Final rule on application of South Dakota for program revision.
-----------------------------------------------------------------------
SUMMARY: South Dakota has applied for final authorization of revisions
to its hazardous waste program under the Resource Conservation and
Recovery Act (RCRA). The Environmental Protection Agency (EPA) has
reviewed South Dakota's application and has reached a decision that
South Dakota's hazardous waste program revision satisfies all of the
requirements necessary to qualify for final authorization. Thus, EPA is
granting final authorization to South Dakota to operate its expanded
program, subject to the authority retained by EPA in accordance with
the Hazardous and Solid Waste Amendments of 1984.
EFFECTIVE DATE: Final authorization for South Dakota shall be effective
at 1:00 p.m. on September 23, 1996.
FOR FURTHER INFORMATION CONTACT: Ms. Kris Shurr (8P2-SA), State
Assistance Program, 999 18th Street, Ste 500, Denver, Colorado 80202-
2466, Phone: 303/312-6139.
SUPPLEMENTARY INFORMATION:
A. Background
States with final authorization under Section 3006(b) of the
Resource Conservation and Recovery Act (``RCRA''), 42 U.S.C. 6929(b),
have a continuing obligation to maintain a hazardous waste program that
is equivalent to, consistent with, and no less stringent than the
Federal hazardous waste program. In addition, as an interim measure,
the Hazardous and Solid Waste Amendments of 1984 (Pub. L. 98-616,
November 8, 1984, hereinafter ``HSWA'') allows States to revise their
programs to become substantially equivalent instead of equivalent to
RCRA requirements promulgated under HSWA authority. States exercising
the latter option receive ``interim authorization'' for the HSWA
requirements under Section 3006(g) of RCRA, 42 U.S.C. 6926(g), and
later apply for final authorization for the HSWA requirements.
Revisions to State hazardous waste programs are necessary when
Federal or State statutory or regulatory authority is modified or when
certain other changes
[[Page 38393]]
occur. Most commonly, State program revisions are necessitated by
changes to EPA's regulations in 40 CFR Parts 260-266 and 124 and 270.
B. South Dakota
South Dakota initially received final authorization on November 2,
1984. South Dakota received authorization for revisions to its program
on June 17, 1991, November 8, 1993, and March 11, 1994. On October 2,
1995, South Dakota submitted a final program revision application for
additional program approval.
EPA has reviewed South Dakota's application and has made a final
decision that South Dakota's hazardous waste program revisions, which
adopt Federal rules by reference, satisfy all of the requirements
necessary to qualify for final authorization. Consequently, EPA is
granting final authorization for the additional program modifications
listed in Table 1 to South Dakota.
Today, South Dakota is seeking approval of its program revision in
accordance with 40 CFR 271.21(b)(3). Specific provisions which are
included in the South Dakota program authorization revision sought
today are listed in Table 1 below.
Table 1
------------------------------------------------------------------------
HSWA or FR reference State equivalent \1\
------------------------------------------------------------------------
Land Disposal Restrictions (Solvents and 74:28:01:02, 74:28:22:01,
Dioxins), 51 FR 40572, 11/07/86; 52 FR 74:28:23:01, 74:28:24:01,
25760, 07/08/87; and 53 FR 31138, 08/17/ 74:28:25:01, 74:28:26:01,
88. 74:28:28:01, and
74:28:30:01.
California List Waste Restrictions, 51 FR 74:28:21:02, 74:28:23:01,
40572, 11/07/86; 52 FR 25760, 07/08/87; 74:28:25:01, 74:28:26:01,
and 53 FR 31138, 08/17/88. 74:28:28:01, and
74:28:30:01.
Land Disposal Restrictions for First Third 74:28:25:01, 74:28:27:01,
Scheduled Wastes, 51 FR 40572, 11/07/86; 74:28:28:01, and
52 FR 25760, 07/08/87; and 53 FR 31138, 74:28:30:01.
08/17/88.
Changes to Interim Status Facilities for 74:28:26:01, and Memorandum
Hazardous Waste Management Permits; of Agreement.
Modifications of Hazardous Waste
Management Permits; Procedures for Post-
Closure Permitting, 54 FR 9596, 03/07/89.
Land Disposal Restrictions Amendments to 74:28:30:01.
First Third Scheduled Wastes, 54 FR
18836, 05/02/89.
Delay of Closure Period for Hazardous 74:28:25:01, 74:28:26:01,
Waste Management Facilities, 54 FR 33376, and 74:28:28:01.
08/14/89.
Land Disposal Restrictions for Second 74:28:30:01.
Third Scheduled Wastes, 54 FR 26594, 6/23/
89.
Land Disposal Restrictions; Correction to 74:28:27:01, and
the First Third Scheduled Wastes, 54 FR 74:28:30:01.
36967, 09/06/89.
Land Disposal Restrictions for Third Third 74:28:22:01, 74:28:23:01,
Scheduled Wastes, 55 FR 22520, 6/01/90. 74:28:25:01, 74:28:26:01,
74:28:28:01, and
74:28:30:01.
Petroleum Refinery Primary and Secondary 74:28:22:01.
Oil/Water/Solids Separation Sludge
Listings (F037 & F038), 55 FR 46354, 11/
02/90 and 55 FR 51707, 12/17/90.
Land Disposal Restrictions for Third Third 74:28:22:01, 74:28:23:01,
Scheduled Wastes; Technical Amendment, 56 74:28:26:01, and
FR 3864, 01/31/91. 74:28:30:01.
Burning of Hazardous Waste in Boilers and 74:28:21:01, 74:28:22:01,
Industrial Furnaces, 56 FR 7134, 02/21/91. 74:28:25:01, 74:28:26:01,
74:28:27:01, and
74:28:28:01.
Removal of Strontium Sulfide from the List 74:28:22:01.
of Hazardous Waste; Technical Amendment,
56 FR 7567, 02/25/91.
Organic Air Emission Standards for Process 74:28:25:01, 74:28:26:01,
Vents & Equipment Leaks; Technical and 74:28:28:01.
Amendment, 56 FR 19290, 04/26/91.
Administrative Stay for K069 Listing, 56 74:28:22:01.
FR 19951, 05/01/91.
Revision to the Petroleum Refinery Primary 74:28:22:01.
and Secondary Oil/Water/Solids Separation
Sludge Listings (F037 and F038), 56 FR
21955, 05/13/91.
Mining Waste Exclusion III, 56 FR 27300, 74:28:22:01.
06/13/91.
Wood Preserving Listings, 56 FR 27332, 06/ 74:28:22:01, 74:28:25:01,
13/91. and 74:28:28:01.
Surface Impoundment Requirements--3005(j). 74:28:29:01.
------------------------------------------------------------------------
\1\ References are to the South Dakota Department of Environment and
Natural Resources Title 74, Article 74:28 Hazardous Waste.
During EPA review of South Dakota's program revision application,
EPA had two (2) concerns, which South Dakota has subsequently addressed
to EPA's satisfaction.
The first issue dealt with public access to information. In
previous program revision applications and in its Memorandum of
Agreement (MOA) with EPA, the state has agreed to make records
available to the fullest extent possible, subject to state law and
federal Freedom of Information Act exemptions. However, South Dakota
Codified Law 1-26-2 states: ``An agency shall hold confidential
materials derogatory to a person but such information shall be
available to the person to whom it relates.'' EPA's concern was that
there is no standard set forth in the statute explaining derogatory or
who is to make such a determination. South Dakota has made a change in
its MOA which states that South Dakota will notify EPA if SDCL 1-26-2
is used to deny access to information. Further, the Attorney General's
office has agreed to address this issue in its next program revision
application.
The second issue was contained in South Dakota's recently passed
self-audit immunity law. One of the statements contained in the law
states: ``If a state program is required in writing by a federal agency
to assess penalties for a violation in order to maintain primacy over a
federally-delegated program, or if violations caused damage to human
health or the environment, the * * * Act does not apply.'' South Dakota
confirmed on June 6, 1996, that the state considers Enforcement
Agreements with EPA as meeting the
[[Page 38394]]
definition of ``in writing by a federal agency''. The Attorney
General's Office has agreed to also address this issue in the next
program revision application submitted by South Dakota.
Indian Reservations
The program revision does not extend to ``Indian Country'' as
defined in 18 U.S.C. Section 1151, including lands within the exterior
boundaries of the following Indian reservations located within or
abutting the State of South Dakota:
1. Cheyenne River Indian Reservation.
2. Crow Creek Indian Reservation.
3. Flandreau Indian Reservation.
4. Lake Traverse Indian Reservation.
5. Lower Brule Indian Reservation.
6. Pine Ridge Indian Reservation.
7. Rosebud Indian Reservation.
8. Standing Rock Indian Reservation.
9. Yankton Indian Reservation.
In excluding Indian Country from the scope of this program
revision, EPA is not making a determination that the State either has
adequate jurisdiction or lacks jurisdiction over sources in Indian
Country. Should the State of South Dakota choose to seek program
authorization within Indian Country, it may do so without prejudice.
Before EPA would approve the State's program for any portion of Indian
Country, EPA would have to be satisfied that the State has authority,
either pursuant to explicit Congressional authorization or applicable
principles of Federal Indian law, to enforce its laws against existing
and potential pollution sources within any geographical area for which
it seeks program approval and that such approval would constitute sound
administrative practice.
There are no EPA-issued RCRA permits in Indian Country at this
time.
C. Decision
I conclude that South Dakota's application for program revision
meets all of the statutory and regulatory requirements established by
RCRA. Accordingly, South Dakota is granted final authorization to
operate its hazardous waste program as revised. South Dakota now has
responsibility for permitting treatment, storage, and disposal
facilities within its borders and carrying out other aspects of the
RCRA program described in its revised program application, subject to
the limitations of the HSWA. South Dakota also has primary enforcement
responsibilities, although EPA retains the right to conduct inspections
under Section 3007 of RCRA and to take enforcement actions under
Sections 3008, 3013 and 7003 of RCRA.
Compliance With Executive Order 12866
The Office of Management and Budget has exempted this rule from the
requirements of Section 6 of Executive Order 12866.
Certification Under the Regulatory Flexibility Act
EPA has determined that this authorization will not have a
significant economic impact on a substantial number of small entities.
EPA recognizes that small entities may own and/or operate TSDFs that
will become subject to the requirements of an approved state hazardous
waste program. However, since such small entities which own and/or
operate TSDFs are already subject to the requirements in 40 CFR Parts
264, 265 and 270, this authorization does not impose any additional
burdens on these small entities. This is because EPA's authorization
would result in an administrative change (i.e., whether EPA or the
state administers the RCRA Subtitle C program in that state), rather
than result in a change in the substantive requirements imposed on
small entities. Once EPA authorizes a state to administer its own
hazardous waste program and any revisions to that program, these same
small entities will be able to own and operate their TSDFs under the
approved state program, in lieu of the federal program. Moreover, this
authorization, in approving a state program to operate in lieu of the
federal program, eliminates duplicative requirements for owners and
operators of TSDFs in that particular state.
Therefore, EPA provides the following certification under the
Regulatory Flexibility Act, as amended by the Small Business Regulatory
Enforcement Fairness Act. Pursuant to the provision at 5 U.S.C. 605(b),
I hereby certify that this authorization will not have a significant
economic impact on a substantial number of small entities. This
authorization effectively approves the South Dakota program to operate
in lieu of the federal program, thereby eliminating duplicative
requirements for handlers of hazardous waste in the state. It does not
impose any new burdens on small entities. This rule, therefore, does
not require a regulatory flexibility analysis.
Submission to Congress and the General Accounting Office
Under section 801(a)(1)(A) of the Administrative Procedures Act
(APA) as amended by the Small Business Regulatory Enforcement Fairness
Act of 1996, EPA submitted a report containing this rule and other
required information to the U.S. Senate, the U.S. House of
Representatives and the Comptroller General of the General Accounting
Office prior to publication of the rule in today's Federal Register.
This rule is not a ``major rule'' as defined by section 804(2) of the
APA as amended.
Unfunded Mandates Reform Act
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), P.L.
104-4, establishes requirements for Federal agencies to assess the
effects of their regulatory actions on State, local, and tribal
governments and the private sector. Under section 202 of the UMRA, EPA
generally must prepare a written statement, including a cost-benefit
analysis, for proposed and final rules with ``Federal mandates'' that
may result in expenditures to State, local, and tribal governments, in
the aggregate, or to the private sector, of $100 million or more in any
one year. Before promulgating an EPA rule for which a written statement
is needed, section 205 of the UNRA generally requires EPA to identify
and consider a reasonable number of regulatory alternatives and adopt
the least costly, most cost-effective or least burdensome alternative
that achieves the objectives of the rule. The provisions of section 205
do not apply when they are inconsistent with applicable law. Moreover,
section 205 allows EPA to adopt an alternative other than the least
costly, most cost-effective or least burdensome alternative if the
Administrator publishes with the final rule an explanation why that
alternative was not adopted. Before EPA establishes any regulatory
requirements that may significantly or uniquely affect small
governments, including tribal governments, it must have developed under
section 203 of the UMRA a small government agency plan. The plan must
provide for notifying potentially affected small governments, enabling
officials of affected small governments to have meaningful and timely
input in the development of EPA regulatory proposals with significant
Federal intergovernmental mandates, and informing, educating, and
advising small governments on compliance with the regulatory
requirements.
Today's rule contains no Federal mandates for State, local or
tribal governments or the private sector. The Act excludes from the
definition of a ``Federal mandate'' duties that arise from
participation in a voluntary Federal program, except in certain cases
where a ``federal intergovernmental mandate'' affects an annual federal
entitlement program of $500 million or more that are not applicable
here. South
[[Page 38395]]
Dakota's request for approval of RCRA program revisions to its
authorized hazardous waste program is voluntary and imposes no Federal
mandate within the meaning of the Act. Rather, by having its hazardous
waste program revision approved, the State will gain the authority to
implement the program within its jurisdiction, in lieu of EPA thereby
eliminating duplicative State and Federal requirements. If a State
chooses not to seek authorization for administration of a hazardous
waste program under RCRA Subtitle C, RCRA regulation is left to EPA.
In any event, EPA has determined that this rule does not contain a
Federal mandate that may result in expenditures $100 million or more
for State, local, and tribal governments in the aggregate, or the
private sector in any one year. EPA does not anticipate that the
approval of South Dakota 's hazardous waste program revison referenced
in today's notice will result in annual costs of $100 million or more.
EPA's approval of state programs generally may reduce, not increase,
compliance costs for the private sector since the State, by virtue of
the approval, may now administer the program in lieu of EPA and
exercise primary enforcement. Hence, owners and operators of treatment,
storage, or disposal facilities (TSDFs) generally no longer face dual
Federal and State compliance requirements, thereby reducing overall
compliance costs. Thus, today's rule is not subject to the requirements
of sections 202 and 205 of the UMRA.
EPA has determined that this rule contains no regulatory
requirements that might significantly or uniquely affect small
governments. The Agency recognizes that small governments may own and/
or operate TSDFs or that will become subject to the requirements of an
approved State hazardous waste program revision. However, such small
governments which own and/or operate TSDFs are already subject to the
requirements in 40 CFR parts 264, 265, and 270 and are not subject to
any additional significant or unique requirements by virtue of this
program approval. Once EPA authorizes a State to administer its own
hazardous waste program and any revisions to that program, these same
small governments will be able to own and operate their TSDFs under the
approved State program, in lieu of the Federal program.
Authority: This notice is issued under the authority of Sections
2002(a), 3006 and 7004(b) of the Solid Waste Disposal Act as amended
42 U.S.C. 6912(a), 6926, 6974(b).
Dated: June 25, 1996.
Jack W. McGraw,
Acting Regional Administrator
[FR Doc. 96-18659 Filed 7-23-96; 8:45 am]
BILLING CODE 6560-50-P
Complete official Federal Register PDF
FR Doc. 96-18656 Rules Governing Public Observation of Meetings of the Corporation's Board of Directors
[Federal Register Volume 61, Number 143 (Wednesday, July 24, 1996)]
[Rules and Regulations]
[Pages 38356-38357]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-18656]
=======================================================================
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FEDERAL DEPOSIT INSURANCE CORPORATION
12 CFR Part 311
Rules Governing Public Observation of Meetings of the
Corporation's Board of Directors
AGENCY: Federal Deposit Insurance Corporation.
ACTION: Final rule; technical amendments.
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SUMMARY: The Federal Deposit Insurance Corporation (FDIC or
Corporation) is amending its regulations, which implement the
requirements of The Government in the Sunshine Act (Sunshine Act)
regarding public observation of meetings of its Board of Directors
(Public Observation Rules) to amend the definition of ``Board'' by
deleting references to specific standing committees which no longer
exist and eliminating otherwise superfluous language; make two minor
technical changes; update delegations of authority to conform to a
changed position structure in the Corporation's Legal Division; and
include a cross-reference to the Corporation's Freedom of Information
Act (FOIA) regulations to clarify that documents considered in
connection with Board meetings may be made available to the public
under FOIA.
EFFECTIVE DATE: July 24, 1996.
FOR FURTHER INFORMATION CONTACT: Leneta G. Gregorie, Counsel and
Special Assistant to the Executive Secretary, Office of the Executive
Secretary, (202) 898-3719.
SUPPLEMENTARY INFORMATION:
I. Background
Section 303 of the Riegle Community Development and Regulatory
Improvement Act of 1994, Pub. L. 103-325, 108 Stat. 2214, requires that
each Federal banking agency conduct a review of its written regulations
and policies for purposes of improving efficiency, reducing unnecessary
costs, eliminating unwarranted constraints on credit availability, and
removing inconsistencies and outmoded and duplicative requirements. The
FDIC, in compliance with that mandate, has reviewed part 311 of its
regulations and determined that, although it is statutorily mandated
and imposes no unnecessary costs or unwarranted constraints on credit
availability, several minor, technical amendments are necessary to
ensure internal consistency and consistency with current organizational
structure and the underlying statute, and to clarify the procedures
under which certain documents may be made available.
The definition of ``Board'' at Sec. 311.2(a) excludes any standing
or special committee (such as the Board of Review, the Board of Review
(Mergers), or the Committee on Liquidations, Loans and Purchases of
Assets) which has been or may be created by the Board of Directors but
whose membership consists primarily of Corporation employees, including
not more than one Board member. This exclusionary language was
originally included in the definition to make it clear that the
Corporation's then existing standing committees, because of their
functions and membership, did not constitute ``subdivisions'' of the
Board. However, it has since been well established that Congress did
not intend to bring agency employees within the meaning of the term
``subdivisions'', thereby rendering the exclusion unnecessary. In
addition, all but one of the named committees have been abolished, and
the Corporation's standing committee structure is always subject to
change at the discretion of the Board. Substituting the names of
currently existing committees would render the reference outdated each
time a change was made to the committee structure. Therefore, in order
to simplify the definition of ``Board'' and eliminate the need to make
constant revisions to the regulation, the entire exclusionary clause
has been deleted.
Under the Sunshine Act, a ``meeting'' is defined as the
deliberations of at least the number of individual agency members
required to take action on behalf of the agency where such
deliberations determine or result in the joint conduct or disposition
of official agency business. Although the Sunshine Act is silent on the
issue of notational voting, judicial interpretations of the
[[Page 38357]]
term ``meeting'' have consistently held that it does not apply to a
notational voting system in which agency members vote individually on
matters circulated to them sequentially in writing. See e.g., Railroad
Comm'n of Texas v. U.S., 765 F.2d 221 (D.C. Cir. 1985); Communications
Systems, Inc. v. FCC, 595 F.2d 797 (D.C. Cir. 1978). The Corporation,
at Sec. 311.2(b)(2) of its regulation, has attempted to include this
judicial interpretation in its regulatory definition of what
constitutes a ``meeting'' by excluding from the definition infrequent
decisionmaking by the circulation of written material to individual
Board members. However, the reference to ``[i]nfrequent'' use of
notational voting is inconsistent with judicial interpretations which
exclude notational voting from the definition of ``meeting'' without
regard to the frequency with which such a procedure is used to make
decisions. Therefore, the FDIC has removed the reference to
``[i]nfrequent'' at Sec. 311.2(b)(3) to make the exclusion consistent
with relevant court decisions. Despite this change, the FDIC
contemplates no change in the frequency with which it has used
notational voting procedures in the past.
The position structure of the Corporation's Legal Division has
changed slightly since part 311 was initially implemented. Thus, the
delegations of authority to certify that a meeting of the Board may be
closed to the public has been amended in a way that reflects the
changed structure and accommodates any future changes.
Although Sec. 311.8 is currently titled in such a way as to limit
its application to transcripts and minutes of ``closed'' Board
meetings, it does in fact address minutes of meetings of open Board
meetings as well. The heading has, therefore, been revised to read,
``Transcripts and minutes of meetings.''
Finally, at Sec. 311.8, a new paragraph (e), entitled ``Procedures
for obtaining documents identified in minutes'', has been added to
clarify that, in addition to the availability under the Sunshine Act of
transcripts and minutes of Board meetings, documents referred to in
minutes or considered in connection with any action taken at Board
meetings may be made available under the Corporation's FOIA
regulations, to the extent permitted by FOIA.
II. Public Comment Waiver
The amendments are not substantive. Rather, they remove obsolete
and superfluous provisions, make technical amendments, change a
delegation of authority to make it consistent with current
organizational structure; and clarify procedures for obtaining certain
documents. The Board finds that because Part 311 addressses internal
agency procedure and practice, public comment on these changes is
unnecessary and contrary to the public interest. Thus, the Board has
determined that there exists good cause for not following the
provisions of 5 U.S.C. 553(b) relating to notice and public
participation in connection with the adoption of these amendments.
III. Matters of Regulatory Procedure
Regulatory Flexibility Analysis
The requirements of Chapter 6 of Title 5 of the United States Code
relative to ``The Analysis of Regulatory Functions'' does not apply to
Part 311. Part 311 is not a ``rule'' for purposes of that statute (see
5 U.S.C. 601(2)) as it is not a rule for which the FDIC is required to
publish a general notice of proposed rulemaking under section 553(b) of
Title 5 of the United States Code. Part 311 is a rule of agency
procedure and/or practice and is thus exempt under the statute.
Paperwork Reduction Act
No collections of information pursuant to section 3504(h) of the
Paperwork Reduction Act (44 U.S.C. 3501 et seq.) are contained in this
notice. Consequently, no information has been submitted to the Office
of Management and Budget for review.
List of Subjects in 12 CFR Part 311
Sunshine Act.
For the reasons set forth above, 12 CFR part 311 is amended as set
forth below.
PART 311--RULES GOVERNING PUBLIC OBSERVATION OF MEETINGS OF THE
CORPORATION'S BOARD OF DIRECTORS
1. The authority citation for Part 311 continues to read as
follows:
Authority: 5 U.S.C. 552b and 12 U.S.C. 1819.
2. Section 311.2 is amended by revising paragraph (a) to read as
follows:
Sec. 311.2 Definitions.
* * * * *
(a) Board means Board of Directors of the Federal Deposit Insurance
Corporation and includes any subdivision of the Board authorized to act
on behalf of the Corporation.
* * * * *
Sec. 311.2 [Amended]
3. Section 311.2(b)(3) is amended by removing the words
``Infrequent decisionmaking'' and adding in their place, the words
``Decision-making''.
4. Section 311.7 is amended by revising the second and third
sentences to read as follows:
Sec. 311.7 General Counsel certification.
* * * In the absence of the General Counsel, the next ranking
official in the Legal Division may perform the certification. If the
General Counsel and such next ranking official in the Legal Division
are both absent, the official in the Legal Division who is then next in
rank may provide the required certification. * * *
5. Section 311.8 is amended by revising the heading; by revising
the first sentence of paragraph (d)(1); and by adding a new paragraph
(e) to read as follows:
Sec. 311.8 Transcripts and minutes of meetings.
* * * * *
(d) * * * (1) An individual may inspect materials made available
under paragraph (c) of this section at the Office of the Executive
Secretary, Federal Deposit Insurance Corporation, 550 17th Street,
N.W., Washington, D.C. 20429, during normal business hours. * * *
* * * * *
(e) Procedures for obtaining documents identified in minutes.
Copies of documents identified in minutes or considered by the Board in
connection with any action identified in the minutes may be made
available to the public upon request, to the extent permitted by the
Freedom of Information Act, under the provisions of 12 CFR part 309,
Disclosure of Information.
By order of the Board of Directors.
Dated at Washington, D.C. this 16th day of July, 1996.
Federal Deposit Insurance Corporation.
Robert E. Feldman,
Deputy Executive Secretary.
[FR Doc. 96-18656 Filed 7-23-96; 8:45 am]
BILLING CODE 6714-01-P
Complete official Federal Register PDF
FR Doc. 96-18646 Approval and Promulgation of Implementation Plans Tennessee: Approval of Source Specific Nitrogen Oxide Permits Into the Tennessee State Implementation Plan
[Federal Register Volume 61, Number 143 (Wednesday, July 24, 1996)]
[Rules and Regulations]
[Pages 38390-38392]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-18646]
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[[Page 38391]]
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[TN-173-9637a; FRL-5538-2]
Approval and Promulgation of Implementation Plans Tennessee:
Approval of Source Specific Nitrogen Oxide Permits Into the Tennessee
State Implementation Plan
AGENCY: Environmental Protection Agency (EPA).
ACTION: Direct final rule.
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SUMMARY: In this action, EPA is approving two source specific permits
into the Tennessee State Implementation Plan (SIP) submitted to EPA by
Tennessee, through the Tennessee Department of Air Pollution Control
(TDAPC) which limit nitrogen oxide (NOX) emissions for certain
engines at the Tenneco Energy Portland facility located in Sumner
County, Tennessee. These permits are necessary because NOX
reductions from the Tenneco Energy Portland facility were used in
calculating the NOX emissions projections in the maintenance plan
for the Middle Tennessee ozone nonattainment area. EPA is proposing
approval of the ozone redesignation request in a separate action.
DATES: This final rule is effective September 23, 1996 unless adverse
or critical comments are received by August 23, 1996. If the effective
date is delayed, timely notice will be published in the Federal
Register.
ADDRESSES: Written comments on this action should be addressed to
William Denman at the Environmental Protection Agency, Region 4 Air
Programs Branch, 345 Courtland Street, NE, Atlanta, Georgia 30365.
Copies of documents relative to this action are available for public
inspection during normal business hours at the following locations. The
interested persons wanting to examine these documents should make an
appointment with the appropriate office at least 24 hours before the
visiting day. Reference file TN173-01-9637. The Region 4 office may
have additional background documents not available at the other
locations.
Air and Radiation Docket and Information Center (Air Docket 6102), U.S.
Environmental Protection Agency, 401 M Street, SW., Washington, DC
20460.
Environmental Protection Agency, Region 4 Air Programs Branch, 345
Courtland Street, NE, Atlanta, Georgia 30365, William Denman, 404/347-
3555 extension 4208.
Tennessee Department of Environment and Conservation, Division of Air
Pollution Control, L & C Annex, 9th Floor, 401 Church Street,
Nashville, Tennessee 37243-1531, 615/532-0554.
FOR FURTHER INFORMATION CONTACT: William Denman 404/347-3555 extension
4208.
SUPPLEMENTARY INFORMATION: On May 31, 1996, Tennessee, through the
Tennessee Department of Air Pollution Control (TDAPC), submitted to EPA
for incorporation into the SIP, two permits which limit nitrogen oxide
(NOX) emissions for certain engines at the Tenneco Energy Portland
facility located in Sumner County, Tennessee. The permits contain
requirements and emission limits for reciprocating engines and
auxiliary generators which are used for the purpose of pumping natural
gas.
The first permit (#045022F) was issued to the Midwestern Gas
Transmission Company, Compressor Station 2101 which operates 3
Ingersoll Rand KVS-412 (2000 horsepower [hp]), 1 Ingersoll Rand KVT-512
(3000 hp), and 1 Cooper-Bessemer 8V-250 (2700 hp) reciprocating engines
at the Portland facility. This operating permit contains a provision
which requires clean-burn retrofit to be utilized on Ingersoll-Rand
KVS-412 engine 1A and Cooper-Bessemer 8V-250 engine 5A. Engine 1A is
required to have an emission rate not exceeding 18.01 grams per hp-hour
and engine 5A is required to have an emission rate not exceeding 8.55
grams per hp-hour.
The second permit (#045025F) was issued to Tennessee Gas Pipeline
which operates 33 Cooper-Bessemer two-cycle reciprocating engines with
a total of 49,700 hp and 7 Ingersoll Rand four-cycle auxiliary
generators with a total of 2,704 hp. This permit prohibits engine
number three (Cooper-Bessemer 16V-250 rated at 550 hp) from operating
without installing a clean-burn retrofit modification and limits the
emission rate to not exceed 3.6 grams per hp-hour. Also, this permit
requires that parametric controls be used on engines 1 and 2 (Cooper-
Bessemer GMWC-10 rated at 3400 hp each) and limits the emission rate of
these engines to 37.3 grams per hp-hour.
The NOX controls and limits in these two permits must be
approved into the Tennessee SIP prior to the approval of the Middle
Tennessee ozone redesignation request because NOX reductions from
the Tenneco Energy Portland facility were used in calculating the
NOX emissions projections in the maintenance plan for the Middle
Tennessee ozone nonattainment area.
These permits, which provide NOX emission controls, are not
being approved as meeting the NOX Reasonably Available Control
Technology (RACT) requirements of the Clean Air Act (CAA) because EPA
is granting a NOX RACT exemption for the Middle Tennessee ozone
nonattainment area under 182(f) of the CAA in a separate action. If the
Middle Tennessee ozone nonattainment area violates the ozone standard
prior to the final approval of the ozone redesignation request, the
NOX RACT exemption will become void and all major NOX sources
located in the nonattainment area will be subject to the federal
NOX RACT requirements of the CAA.
Final Action
The EPA is approving the aforementioned permits into the Tennessee
SIP because they are consistent with the CAA and EPA policy. This rule
making is being published without a prior proposal for approval 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 September 23, 1996 unless, by August 23, 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 the separate 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 September 23, 1996.
Under section 307(b)(1) of the Clean Air Act (CAA), 42 U.S.C.
7607(b)(1), petitions for judicial review of this action must be filed
in the United States Court of Appeals for the appropriate circuit by
September 23, 1996. Filing a petition for reconsideration by the
Administrator of this final rule does not affect the finality of this
rule for 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
[[Page 38392]]
307(b)(2) of the CAA, 42 U.S.C. 7607(b)(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 FR 2214-2225), as revised by
a July 10, 1995, memorandum from Mary Nichols, Assistant Administrator
for Air and Radiation. The Office of Management and Budget (OMB) has
exempted this regulatory action from E.O. 12866 review.
Nothing in this action shall be construed as permitting or allowing
or establishing a precedent for any future request for a revision to
any state 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.
Under the Regulatory Flexibility Act, 5 U.S.C. 601 et seq., EPA
must prepare a regulatory flexibility analysis assessing the impact of
any proposed or final rule on small entities. 5 U.S.C. 603 and 604.
Alternatively, EPA may certify that the rule will not have a
significant impact on a substantial number of small entities. Small
entities include small businesses, small not-for-profit enterprises,
and government entities with jurisdiction over populations of less than
50,000.
SIP approvals under section 110 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) and 7410(k)(3).
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 Section 182 of the CAA.
These rules may bind State, local and tribal governments to perform
certain actions and also require the private sector to perform certain
duties. EPA has examined whether the rules being approved by this
action will impose any new requirements. Since such sources are already
subject to these regulations under State law, no new requirements are
imposed by this approval. Accordingly, no additional costs to State,
local, or tribal governments, or to the private sector, result from
this action, and therefore there will be no significant impact on a
substantial number of small entities.
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Incorporation by
reference, Intergovernmental relations, Ozone, Reporting and
recordkeeping requirements.
Dated: July 2, 1996.
A. Stanley Meiburg,
Acting Regional Administrator.
Part 52 of chapter I, title 40, 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 RR--Tennessee
2. Section 52.2220 is amended by adding paragraph (c)(142) to read
as follows:
Sec. 52.2220 Identification of plan.
* * * * *
(c) * * *
(142) Addition of two source specific nitrogen oxide (NOx) permits
for certain engines at Tenneco Energy's Portland facility located in
Sumner County, Tennessee, submitted by the Tennessee Department of Air
Pollution Control (TDAPC) to EPA on May 31, 1996.
(i) Incorporation by reference.
(A) Operating Permit number 045022F, approved on May 31, 1996,
except conditions 2, 3, 6, and 7.
(B) Operating Permit number 045025F, approved on May 31, 1996,
except conditions 2, 4, and 5.
(ii) Other material. None.
[FR Doc. 96-18646 Filed 7-23-96; 8:45 am]
BILLING CODE 6560-50-P
Complete official Federal Register PDF
FR Doc. 96-18645 Approval and Promulgation of Air Quality Implementation Plans; Virginia; Approval of Revised Confidentiality Provisions; Approval and Disapproval of Minor New Source Permit Provisions
[Federal Register Volume 61, Number 143 (Wednesday, July 24, 1996)]
[Rules and Regulations]
[Pages 38388-38390]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-18645]
=======================================================================
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[VA032-5013, VA030-5014; FRL-5534-4]
Approval and Promulgation of Air Quality Implementation Plans;
Virginia; Approval of Revised Confidentiality Provisions; Approval and
Disapproval of Minor New Source Permit Provisions
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: EPA is approving in part and disapproving in part State
Implementation Plan (SIP) revisions submitted by the Commonwealth of
Virginia. This action proposes approval of changes submitted by
Virginia in March 1993 to the provisions governing confidentiality of
information. This action disapproves the public participation
requirements associated with the permitting of minor new sources, and
approves all other revisions to Virginia's revised new source permit
provisions. The intended effect of this action is to approve those
State provisions which meet the requirements of the Clean Air Act, and
disapprove those State provisions which do not. This action is being
taken under section 110 of the Clean Air Act.
EFFECTIVE DATE: This final rule is effective on August 23, 1996.
ADDRESSES: Copies of the documents relevant to this action are
available for public inspection during normal business hours at the
Air, Radiation, and Toxics Division, U.S. Environmental Protection
Agency, Region III, 841 Chestnut Building, Philadelphia, Pennsylvania
19107; the Air and Radiation Docket and Information Center, U.S.
Environmental Protection Agency, 401 M Street, SW., Washington, DC
20460; and the Virginia Department of Environmental Quality, 629 East
Main Street, Richmond, Virginia, 23219.
FOR FURTHER INFORMATION CONTACT: Harold A. Frankford, (215) 566-2108 or
FRANKFORD.HAROLD@ EPAMAIL.EPA.GOV.
SUPPLEMENTARY INFORMATION: On September 12, 1995 (60 FR 47320), EPA
published a notice of proposed rulemaking (NPR) for the Commonwealth of
Virginia. The NPR proposed approval of revised provisions of the
Virginia Regulations for the Control and Abatement of Air Pollution,
Sections 120-02-30 and 120-08-01 (except for Sections 120-08-01G.1 and
-01G.4.b), as well as the definition of ``confidential information.''
EPA also proposed approval of the revised exemption levels of Appendix
R, provided that Virginia supply additional documentation that the
exemptions provided for wood manufacturing operations and wood sawmills
are consistent with all applicable Agency criteria for minor new source
permit programs. At the same time, EPA proposed to disapprove the
public participation requirements set forth in Sections 120-08-01G.1
and -01G.4.b, and retain in its place the current Virginia SIP-approved
public participation provisions of Section 120-08-01C.4.a. The formal
SIP revisions were submitted by Virginia on March 18, 1993 and March
29, 1993.
Other specific requirements of Sections 120-01-02C, 120-02-30, 120-
08-01, and Appendix R submitted March 18, 1993 and March 29, 1993, and
the rationale for EPA's proposed action are explained in the NPR and
will not be restated here. In addition, the following provisions of
Section 120-08-01 govern sources that are not covered by the SIP, and
have neither been reviewed nor evaluated as part of this SIP revision
action:
Sections 120-08-01C.1.b, 120-08-01G.4.a, 120-08-01H.1, 120-08-
01I.2, and 120-08-01J.2.
Summary of Public Comments and EPA Response
During the public comment period, which ended on October 12, 1995,
EPA received two comments. One commenter supported EPA's proposed
action to disapprove the revised public participation requirements set
forth in Section 120-08-01G.1 and 01G.4. The other commenter raised two
issues regarding (1) The scope of the public participation provisions
that the SIP should require and (2) the issue of federal enforceability
in the definitions of ``allowable emissions'' and ``potential to
emit.''
The second commenter urged EPA to approve in its entirety the
revised provisions to Section 120-08-01. With regard to the public
participation issue, the commenter stated that the public participation
provisions in 40 CFR section 51.161 should only apply to federally
required new source review programs; they should not apply to the less
environmentally significant sources subject to new source review. The
commenter further stated its opinion that Virginia has provided
reasonable public participation provisions in its proposed revised SIP,
allowing public comment or hearing only for the most environmentally
significant sources or modifications or sources which have the
potential for public interest concerning air quality issues.
However, this commenter also raised the issue that the wording of
the definitions ``allowable emissions'' and ``potential to emit'' found
in Section 120-08-01B is inconsistent with a recent U. S. Court of
Appeals decision on the issue of federal enforceability [National
Mining Association v. United States Environmental Protection Agency, 59
F.3d 1351 (D.C. Cir. 1995)], and that EPA should address this issue.
The SIP language requires that control requirements be both state and
federally enforceable, while the Court decision holds that such control
requirements are acceptable as long as they are either state
enforceable or federally enforceable.
EPA provides the following response:
(1) With regard to the commenter's statement regarding EPA's
disapproval action, EPA has determined that the thresholds which
constitute environmentally significant modifications are specified in
the definition of ``significant'' found in both 40 CFR section
51.165(a)(1)(x) and Section 120-08-03C of Virginia's air pollution
control regulations. The term
[[Page 38389]]
``significant'' is found in the definition of ``major modification,''
which is spelled out in Section 120-08-03C and cross-referenced in
Section 120-08-01B. EPA had approved these definitions as a revision to
the Virginia SIP on May 4, 1982 (47 FR 19134), and codified them into
the SIP at Sec. 52.2420(c)(69). The effective date of this action was
June 3, 1982. The exemptions specified in the revised wording of
revised Sections 120-08-01G.1 and .01G.4.b exceed both EPA and
Virginia's stated thresholds of ``significant''. In this same action,
EPA had approved the current public participation provisions found in
SIP Section 120-08-01C.4. Since these SIP-approved public participation
provisions apply to the public participation requirements for all major
modifications, while the wording of revised Sections 120-08-01G.1 and
.01G.4.b do not, EPA's decision to disapprove the exemptions specified
in Section 120-08-01G and retain the provisions of SIP Section 120-08-
01C.4 is not inconsistent with the commenter's recommendations.
The wording of the definitions ``allowable emissions'' and
``potential to emit'' found in revised Section 120-08-01 is consistent
with the wording that has been part of the Virginia SIP since it was
codified into the Virginia SIP at Sec. 52.2420(c)(69) [see above].
Accordingly, the court decision referred to by the commenter does not
require EPA to revise these provisions in this action, since they
represent both current State law and currently Federally-enforceable
SIP wording.
Additional Information Provided by Virginia
Virginia has also supplied the additional documentation requested
by EPA pertaining to the impact of the exemptions provided for wood
manufacturing operations and wood sawmills on the applicable Agency
criteria for minor new source permit programs. In a March 18, 1996
letter, Virginia stated that the sawmills and wood manufacturing
operations being exempted from the permitting requirements will not
significantly contribute to ambient levels of PM10 standards.
Virginia reached this conclusion on the basis that (1) Most sawmill
operations are located in highly rural areas, and (2) such operations
would emit particulate matter whose size would exceed 10 microns, and
therefore would not contribute to ambient PM10 levels. Currently,
there are no PM10 nonattainment areas in Virginia.
EPA has reviewed the emissions inventory available from the
Aerometric Information Retrieval System (AIRS) database, and agrees
with these conclusions. The inventory reveals the presence of 68
sources that fall under SIC code 2491 [Sawmills and Planing Mills-
General]. However, fewer than 15 sources in the entire Commonwealth are
classified solely as wood sawmills. All of these sources are classified
as ``B'' or minor sources. Therefore, EPA is satisfied with Virginia's
explanation that the exemptions found in Appendix R will not affect
applicable ambient air quality levels or PSD increments.
Final Action
EPA is approving the revisions to Virginia Regulations 120-08-02C
(definition of ``confidential information'') and 120-02-30 submitted by
Virginia on March 18, 1993, as well as the revisions to Section 120-08-
01 (except as noted below) and Appendix R submitted by Virginia on
March 29, 1993 as revisions to the Virginia SIP. At the same time, EPA
is disapproving the revisions to Section 120-08-01G.1 and G.4.b
submitted by Virginia on March 29, 1993 as revisions of the Virginia
SIP.
Accordingly, EPA is revising 40 CFR 52.2420 (Identification of
plan) to reflect EPA's approval action. At the same time, EPA is
revising 40 CFR 52.2423 (Approval status) to (1) Make the public aware
that in addition to Virginia's criteria, EPA has its own criteria (40
CFR part 2) for determining what information submitted by a State in
support of a Federal action (such as a SIP revision request) can be
kept confidential; and (2) announce EPA's disapproval of revised
provisions to Section 120-08-01G.1 and .01G.4.b as revisions of the
Virginia SIP.
Nothing in this action should be construed as permitting or
allowing or establishing a precedent for any future request for
revision to any state implementation plan. Each request for revision to
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.
Under Section 202 of the Unfunded Mandates Reform Act of 1995
(``Unfunded Mandates Act''), signed into law on March 22, 1995, EPA
must prepare a budgetary impact statement to accompany any proposed or
final that includes a Federal mandate that may result in estimated
costs to State, local, or tribal governments in the aggregate; or to
the private sector, of $100 million or more. Under section 205, EPA
must select the most cost-effective and least burdensome alternative
that achieves the objectives of the rule and is consistent with
statutory requirements. Section 203 requires EPA to establish a plan
for informing and advising any small governments that may be
significantly or uniquely impacted by the rule.
EPA has determined that the approval action promulgated does not
include a Federal mandate that may result in estimated costs of $100
million or more to either State, local, or tribal governments in the
aggregate, or to the private sector. This Federal approval action
approves pre-existing requirements under State or local law, and
imposes no new Federal requirements. This Federal disapproval action
maintains pre-existing Federal requirements that have been in effect
since June 3, 1982. Accordingly, no additional costs to State, local,
or tribal governments, or to the private sector, result from this
action.
Under the Regulatory Flexibility Act, 5 U.S.C. 600 et seq., EPA
must prepare a regulatory flexibility analysis assessing the impact of
any proposed or final rule on small entities. 5 U.S.C. 603 and 604.
Alternatively, EPA may certify that the rule will not have a
significant impact on a substantial number of small entities. Small
entities include small businesses, small not-for-profit enterprises,
and government entities with jurisdiction over populations of less than
50,000.
SIP approvals under section 110 and subchapter I, part D of the
Clean Air Act do not create any new requirements but simply approve
requirements that the State is already imposing. Therefore, because the
Federal SIP approval does not impose any new requirements, the
Administrator 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 flexibility
analysis would constitute Federal inquiry into the economic
reasonableness of state action. The Clean Air Act forbids EPA to base
its actions concerning SIPs on such grounds. Union Electric Co. v. U.S.
EPA, 427 U.S. 246, 255-66 (1976); 42 U.S.C. 7410(a)(2).
Similarly, EPA's disapproval of portions of the State request under
Section 110 and subchapter I, part D of the CAA does not affect any
existing requirements applicable to small entities. Any pre-existing
federal requirements remain in place after this disapproval. Federal
disapproval of the state submittal does not affect its state-
enforceability. Moreover, EPA's disapproval of the submittal does not
impose any new Federal requirements. Therefore, EPA certifies that this
[[Page 38390]]
disapproval action does not have a significant impact on a substantial
number of small entities because it does not remove existing
requirements and impose any new Federal requirements.
Under section 801(a)(1)(A) of the Administrative Procedures Act
(APA) as amended by the Small Business Regulatory Enforcement Fairness
Act of 1996, EPA submitted a report containing this rule and other
required information to the U.S. Senate, the U.S. House of
Representatives and the Comptroller General of the General Accounting
Office prior to publication of the rule in today's Federal Register.
This rule is not a ``major rule'' as defined by section 804(2) of the
APA as amended.
This action has been classified as a Table 3 action for signature
by the Regional Administrator under the procedures published in the
Federal Register on January 19, 1989 (54 FR 2214-2225), as revised by a
July 10, 1995 memorandum from Mary Nichols, Assistant Administrator for
Air and Radiation. The Office of Management and Budget (OMB) has
exempted this regulatory action from E.O. 12866 review.
Under section 307(b)(1) of the Clean Air Act, petitions for
judicial review of this action must be filed in the United States Court
of Appeals for the appropriate circuit by September 23, 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 to approve Virginia's air quality
provisions governing confidentiality of information requirements, as
well as to partially approve and partially disapprove Virginia's air
quality provisions governing minor new source permitting, 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,
Nitrogen dioxide, Ozone, Particulate matter, Reporting and
recordkeeping requirements, Sulfur Oxides.
Dated: June 21, 1996.
Stanely L. Laskowski,
Acting Regional Administrator, Region III.
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 VV--Virginia
2. Section 52.2420 is amended by adding paragraphs (c)(108) and
(c)(109) to read as follows:
Sec. 52.2420 Identification of plan.
* * * * *
(c) * * *
(108) Revisions to the Virginia Regulations for the Control and
Abatement of Air Pollution submitted on March 18, 1993 by the Virginia
Department of Air Pollution Control:
(i) Incorporation by reference.
(A) Letter of March 18, 1993 from the Virginia Department of Air
Pollution Control transmitting revisions governing confidentiality of
information.
(B) Revisions to Virginia regulations sections 120-01-02C.
(definition of ``confidential information'') and 120-02-30 (revisions
to paragraphs 30A. and 30B.; addition of paragraphs 120-02-30C. through
30E.), adopted October 30, 1992 and effective February 1, 1993.
(ii) Additional material.
(A) Remainder of the March 18, 1993 State submittal pertaining to
both the definition of ``confidential information'' and the revised
provisions to Section 120-02-30.
(109) Revisions to the Virginia Regulations for the Control and
Abatement of Air Pollution submitted on March 29, 1993 by the Virginia
Department of Air Pollution Control:
(i) Incorporation by reference.
(A) Letter of March 29, 1993 from the Virginia Department of Air
Pollution Control transmitting revisions governing confidentiality of
information.
(B) The following provisions of the Virginia regulations, adopted
October 30, 1992 and effective January 1, 1993.
(1) Revisions to Sections 120-08-01A.; 120-08-01C.4; 120-08-01D.;
120-08-01F. [former SIP Section 120-08-01G.]; 120-08-01G. (except for
paragraphs .01G.1, .01G.4.a, and .01G.4.b); 120-08-01H. (except for
paragraph .01H.1) [former SIP Section 120-08-01F, except for paragraph
.01F.2]; 120-08-01I. (except for paragraph .01I.2) [former SIP Section
120-08-01L., except for paragraph .01L.2]; 120-08-01J. [former SIP
Section 120-08-01H.]; 120-08-01K.; 120-08-01L. [former SIP Section 120-
08-01J.]; 120-08-01M. [former SIP Section 120-08-01K.]; 120-08-01P.
[former SIP Section 120-08-01M.]; Addition of Sections 120-08-01N and
120-08-01O.
(2) Revisions to to following definitions in Section 120-08-01B.:
``allowable emissions,'' ``commence,'' ``federally enforceable,''
``modification,'' ``potential to emit,'' ``secondary emissions'' and
``stationary source.''
(3) Revisions to Appendix R, Sections I (title only), II.A, II.P,
II.Q (added), II.R (added), III.A, III.C, III.E, III.G, III.I, III.L,
III.T, III.U, IV., V., and VIII.
(ii) Additional material.
(A) Remainder of the March 29, 1993 State submittal pertaining to
the revisions to Section 120-08-01 (except for paragraphs .01G.1,
.01G.4.a, .01G.4.b, .01H.1, .01I.2, and .01J.2) and Appendix R listed
in paragraphs (c)(109)(i)(B) (1) through (3) of this section.
(B) Letter of March 18, 1996 from the Virginia Department of
Environmental Quality, Air Division, clarifying the effect of the
exemption of wood sawmills from the provisions of Section 120-08-01
(Appendix R, Section II.R).
* * * * *
3. Section 52.2423 is amended by adding paragraphs (o) and (p) to
read as follows:
Sec. 52.2423 Approval status.
* * * * *
(o) EPA approves the revised confidentiality of information
provisions of Sections 120-02-30, submitted by the Virginia Department
of Air Pollution Control on March 18, 1993, as revisions to the
Virginia SIP. However, should Virginia submit a SIP revision request on
behalf of a source, which contains information that has been judged
confidential under the provisions of Section 120-02-30, Virginia must
request EPA to consider confidentiality according to the provisions of
40 CFR part 2. EPA is obligated to keep such information confidential
only if the criteria of 40 CFR part 2 are met.
(p) EPA disapproves the revised public participation provisions of
Sections 120-08-01G.1 and 120-08-01G.4.b, submitted by the Virginia
Department of Air Pollution Control on March 29, 1993, as revisions to
the Virginia SIP. These revised provisions do not meet the requirements
of 40 CFR 51.160 and 51.161. In its place, EPA retains the SIP
provisions of Section 120-08-01C.1.a and 01C.4.b through d. as
originally approved at Secs. 52.2420(c)(69) [SIP section
2.33(a)(5)(ii)] and subsequently revised, due to format changes, at
Secs. 52.2420(c)(89)(i)(B)(7) [SIP section 120-08-01C.4.b].
[FR Doc. 96-18645 Filed 7-23-96; 8:45 am]
BILLING CODE 6560-50-P
Complete official Federal Register PDF
FR Doc. 96-18613 Missouri Regulatory Program
[Federal Register Volume 61, Number 143 (Wednesday, July 24, 1996)]
[Rules and Regulations]
[Pages 38374-38376]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-18613]
=======================================================================
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DEPARTMENT OF THE INTERIOR
Office of Surface Mining Reclamation and Enforcement
30 CFR Part 925
[SPATS No. MO-029-FOR]
Missouri Regulatory Program
AGENCY: Office of Surface Mining Reclamation and Enforcement (OSM),
Interior.
ACTION: Final rule; approval of amendment.
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SUMMARY: OSM is approving a proposed amendment to the Missouri
regulatory program (hereinafter referred to as the ``Missouri
program'') under the Surface Mining Reclamation Act of 1977 (SMCRA).
Missouri proposed revisions to its statutes pertaining to requirements
and procedures for adoption of new or amended rules. The amendment is
intended to revise the Missouri program to be consistent with SMCRA,
clarify ambiguities, and improve operational efficiency.
EFFECTIVE DATE: July 24, 1996.
FOR FURTHER INFORMATION CONTACT:
Michael Wolfrom, Regulatory Program Specialist, Mid-Continent Regional
Coordinating Center, Alton Federal Building, 501 Belle Street, Alton,
Illinois 62002. Telephone: (618) 463-6460.
SUPPLEMENTARY INFORMATION:
I. Background on the Missouri Program
II. Submission of the Proposed Amendment
III. Director's Findings
IV. Summary and Disposition of Comments
V. Director's Decision
VI. Procedural Determinations
I. Background on the Missouri Program
On November 21, 1980, the Secretary of the Interior conditionally
approved the Missouri program. General background information on the
Missouri program, including the Secretary's findings, the disposition
of comments, and the conditions of approval of the Missouri program can
be found in the November 21, 1980, Federal Register (45 FR 77017).
Subsequent actions concerning Missouri's program and program amendments
can be found at 30 CFR 925.12, 925.15, and 925.16.
II. Submission of the Proposed Amendment
By letter dated March 20, 1996 (Administrative Record No. MO-637),
Missouri submitted a proposed amendment to its program pursuant to
SMCRA. Missouri submitted the proposed amendment at its own initiative.
The proposed amendment concerns changes to the Missouri Surface Coal
Mining Law authorized by Senate Bill No. 3. Missouri proposed to amend
the Revised Statutes of Missouri (RSMo) at sections 444.800.5,
Procedures for suspension and reinstatement of rules; 444.810.2 through
444.810.8, Powers of the commission; and 444.950.2 through 444.950.8,
Requirements and procedures for adoption of new or amended rules.
OSM announced receipt of the proposed amendment in the April 2,
1996, Federal Register (61 FR 14517), and in the same document opened
the public comment period and provided an opportunity for a public
hearing on the adequacy of the proposed amendment. The public comment
period closed on May 2, 1996.
III. Director's Findings
Set forth below, pursuant to SMCRA and the Federal regulations at
30 CFR 732.15 and 732.17, are the Director's findings concerning the
proposed amendment.
1. RSMo 444.800.5 Procedures for Suspension and Reinstatement of Rules
Missouri proposed to remove the provision at section 444.800.5
concerning the authority of the joint committee on administrative rules
to suspend and reinstate a rule based upon specified circumstances.
This provision is duplicative of provisions contained in RSMo 536.024.
Chapter 536, RSMo, Administrative Procedure and Review, contains the
procedures State agencies must follow when adopting, amending, or
rescinding administrative rules or regulations in Missouri.
Since there is no direct Federal counterpart to the deleted
provision, the Director finds that the removal of section 444.800.5
will not render the Missouri program less stringent than SMCRA or less
effective than the Federal regulations.
2. RSMo 444.810.2 Through 444.810.8 Powers of the Commission
Missouri proposed to remove the existing provisions at sections
444.810.2 through 444.810.8 concerning requirements and procedures for
adoption of new or amended rules and to add the following new provision
at section 444.810.2.
No rule or portion of a rule promulgated under the authority of
sections 444.800 to 444.970 shall become effective unless it has
been promulgated pursuant to the provisions of section 536.024,
RSMo.
The existing provisions proposed for removal are duplicative of
provisions contained in RSMo 536.024. Missouri's proposed new provision
appropriately references section 536.024 since all Missouri agencies
that are authorized by constitution or statute to make rules must
comply with the provisions of Chapter 536, RSMo when adopting,
amending, or rescinding administrative rules or regulations.
While there is no direct Federal counterpart to the removed
provisions or to the new provision, SMCRA and the Federal regulation at
30 CFR 732.15(b)(10) require State programs to provide for public
participation in the development and revision of State regulations.
Chapter 536, RSMo provides for the publication in the Missouri Register
of proposed rulemaking and subsequent final orders of rulemaking and
provides for public participation in the rulemaking process.
Therefore, the Director finds that the deletion of the existing
provisions at sections 444.810.2 through 444.810.8 and the addition of
the new provision at section 444.810.2 do not render the Missouri
program less stringent than SMCRA or less effective than the Federal
regulations.
3. RSMo 444.950.2 Requirements and Procedures for Adoption of New or
Amended Rules
Missouri proposed to remove the existing provisions at sections
444.950.2 through 444.950.8 concerning requirements and procedures for
[[Page 38375]]
adoption of new or amended rules; to redesignate sections 444.950.9
through 444.950.11 as 444.950.3 through 444.950.5; and to add the
following new provision at section 444.950.2.
No rule or portion of a rule promulgated under the authority of
sections 444.800 to 444.970 shall become effective unless it has
been promulgated pursuant to the provisions of section 536.024,
RSMo.
The existing provisions proposed for removal are duplicative of
provisions contained in RSMo 536.024. Missouri's proposal new provision
appropriately references section 536.024 since all Missouri agencies
that are authorized by constitution or statute to make rules must
comply with the provisions of Chapter 536, RSMo when adopting,
amending, or rescinding administrative rules or regulations.
While there is no direct Federal counterpart to the removed
provisions or to the new provision, SMCRA and the Federal regulations
at 30 CFR 732.15(b)(10) require State programs to provide for public
participation in the development and revision of State regulations.
Chapter 536, RSMo provides for the publication in the Missouri Register
of proposed rulemaking and subsequent final orders of rulemaking and
provides for public participation in the rulemaking process. Therefore,
the Director finds that the deletion of the existing provisions at
sections 444.950.2 through 444.950.8, the redesignation of sections,
and the addition of the new provision at section 444.950.2 do not
render the Missouri program less stringent than SMCRA or less effective
than the Federal regulations.
IV. Summary and Disposition of Comments
Public Comments
The Director solicited public comments and provided an opportunity
for a public hearing on the proposed amendment. No public comments were
received; and because no one requested an opportunity to speak at a
public hearing, no hearing was held.
Federal Agency Comments
Pursuant to 30 CFR 732.17(h)(11)(i), the Director solicited
comments on the proposed amendment from various Federal agencies with
an actual or potential interest in the Missouri program. No comments
were received.
Environmental Protection Agency (EPA)
Pursuant to 30 CFR 732.17(h)(11)(ii), OSM is required to obtain the
written concurrence of the EPA with respect to those provisions of the
proposed program amendment that relate to air or water quality
standards promulgated under the authority of the Clean Water Act (33
U.S.C. 1251 et seq.) or the Clean Air Act (42 U.S.C. 7401 et seq.).
None of the revisions that Missouri proposed to make in this amendment
pertain to air or water quality standards. Therefore, OSM did not
request EPA's concurrence.
Pursuant to 732.17(h)(11)(i), OSM solicited comments on the
proposed amendment from EPA (Administrative Record No. MO-638). EPA did
not respond to OSM's request.
State Historical Preservative Officer (SHPO) and the Advisory Council
on Historic Preservation (ACHP)
Pursuant to 30 CFR 732.17(h)(4), OSM is required to solicit
comments on proposed amendments which may have an effect on historic
properties from the SHPO and ACHP. Since the proposed amendment would
not have any effect on historic properties, OSM did not solicit comment
from the SHPO or ACHP.
V. Director's Decision
Based on the above findings, the Director approves the proposed
amendment as submitted by Missouri on March 20, 1996.
The Federal regulations at 30 CFR Part 925, codifying decisions
concerning the Missouri program, are being amended to implement this
decision. This final rule is being made effective immediately to
expedite the State program amendment process and to encourage States to
bring their programs into conformity with the Federal standards without
undue delay. Consistency of State and Federal standards is required by
SMCRA.
VI. Procedural Determinations
Executive Order 12866
This rule is exempted from review by the Office of Management and
Budget (OMB) under Executive Order 12866 (Regulatory Planning and
Review).
Executive Order 12988
The Department of the Interior has conducted the reviews required
by section 3 of Executive Order 12988 (Civil Justice Reform) and has
determined that, to the extent allowed by law, this rule meets the
applicable standards of subsections (a) and (b) of that section.
However, these standards are not applicable to the actual language of
State regulatory programs and program amendments since each such
program is drafted and promulgated by a specific State, not by OSM.
Under sections 503 and 505 of SMCRA (30 U.S.C. 1253 and 1255) and 30
CFR 730.11, 732.15, and 732.17(h)(10), decisions on proposed State
regulatory programs and program amendments submitted by the States must
be based solely on a determination of whether the submittal is
consistent with SMCRA and its implementing Federal regulations and
whether the other requirements of 30 CFR Parts 730, 731, and 732 have
been met.
National Environmental Policy Act
No environmental impact statement is required for this rule since
section 702(d) of SMCRA (30 U.S.C. 1292(d)) provides that agency
decisions on proposed State regulatory program provisions do not
constitute major Federal actions within the meaning of section
102(2)(C) of the National Environmental Policy Act (42 U.S.C.
4332(2)(C)).
Paperwork Reduction Act
This rule does not contain information collection requirements that
require approval by OMB under the Paperwork Reduction Act (44 U.S.C.
3507 et seq.).
Regulatory Flexibility Act
The Department of the Interior has determined that this rule will
not have a significant economic impact on a substantial number of small
entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.).
The State submittal which is the subject of this rule is based upon
corresponding Federal regulations for which an economic analysis was
prepared and certification made that such regulations would not have a
significant economic effect upon a substantial number of small
entities. Accordingly, this rule will ensure that existing requirements
previously promulgated by OSM will be implemented by the State. In
making the determination as to whether this rule would have a
significant economic impact, the Department relied upon the data and
assumptions for the corresponding Federal regulations.
Unfunded Mandates
This rule will not impose a cost of $100 million or more in any
given year on any governmental entity or the private sector.
List of Subjects in 30 CFR Part 925
Intergovernmental relations, Surface mining, Underground mining.
[[Page 38376]]
Dated: July 3, 1996.
Brent Wahlquist,
Regional Director, Mid-Continent Regional Coordinating Center.
For the reasons set out in the preamble, 30 CFR Part 925 is amended
as set forth below:
PART 925--MISSOURI
1. The authority citation for Part 925 continues to read as
follows:
Authority: 30 U.S.C. 1201 et seq.
2. Section 925.15 is amended by adding paragraph (v) to read as
follows:
Sec. 925.15 Approval of regulatory program amendments.
* * * * *
(v) Revisions to the Revised Statutes of Missouri (RSMo) at
sections 444.800, 444.810, and 444.950 as submitted to OSM on March 20,
1996, are approved effective July 24, 1996.
[FR Doc. 96-18613 Filed 7-23-96; 8:45 am]
BILLING CODE 4310-05-M
Complete official Federal Register PDF
FR Doc. 96-18612 New Mexico Abandoned Mine Land Reclamation Plan
[Federal Register Volume 61, Number 143 (Wednesday, July 24, 1996)]
[Rules and Regulations]
[Pages 38376-38381]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-18612]
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DEPARTMENT OF THE INTERIOR
30 CFR Part 931
[NM-035-FOR]
New Mexico Abandoned Mine Land Reclamation Plan
AGENCY: Office of Surface Mining Reclamation and Enforcement, Interior.
ACTION: Final rule; approval of amendment.
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SUMMARY: Office of Surface Mining Reclamation and Enforcement (OSM) is
approving, with certain exceptions and additional requirements, a
proposed amendment to the New Mexico abandoned mine land reclamation
(AMLR) plan (hereinafter, the ``New Mexico plan'') under the Surface
Mining Control and Reclamation Act of 1977 (SMCRA). New Mexico proposed
to amend its plan by adding plan provisions pertaining to contractor
responsibilities, exclusion of certain sites from eligibility for
reclamation, and reports. In addition, New Mexico proposed revising the
State AMLR statute pertaining to its purpose, definition, creation of
the abandoned mine reclamation fund, objectives of the fund,
acquisition and reclamation of land adversely affected by past mining
practices, liens, and emergency powers. The amendment was intended to
revise the New Mexico plan to be consistent with SMCRA and meet the
requirements of the corresponding Federal regulations, and to improve
operational efficiency.
EFFECTIVE DATE: July 24, 1996.
FOR FURTHER INFORMATION CONTACT: Guy Padgett, Telephone: (505) 248-
5070, Internet address: [email protected].
SUPPLEMENTARY INFORMATION:
I. Background on the New Mexico Plan
On June 17, 1981, the Secretary of the Interior approved the New
Mexico. General background information on the New Mexico plan,
including the Secretary's findings and the disposition of comments, can
be found in the June 17, 1981, Federal Register (46 FR 31641).
Subsequent actions concerning New Mexico's plan and plan amendments can
be found at 30 CFR 931.25 and 931.26.
II. Proposed Amendment
By letter dated July 24, 1995, New Mexico submitted a proposed
amendment to its plan (administrative record No. NM-758) pursuant to
SMCRA (30 U.S.C. 1201 et seq.). New Mexico submitted the proposed
amendment in response to a September 26, 1994, letter (administrative
record No. NM-732) that OSM sent it in accordance with 30 CFR
884.15(d), and at its own initiative.
The provisions of the New Mexico plan that New Mexico proposed to
add were: section 874.16, contractor responsibility; 875.16, exclusion
of certain sites from eligibility for reclamation; 875.20, contractor
responsibility; and 886.23(c), reports. The provisions of the New
Mexico Abandoned Mine Reclamation Act that New Mexico proposed to
revise were: New Mexico Statute Annotated (NMSA) 69-25B-2, purpose of
the act; NMSA 69-25B-3, definitions; NMSA 69-25B-4, creation of the
abandoned mine reclamation fund; NMSA 69-25B-6, objective of the fund;
NMSA 69-25B-7, acquisition and reclamation of land adversely affected
by past mining practices; NMSA 69-25B-8, liens; and NMSA 69-25B-12,
emergency powers.
OSM announced receipt of the proposed amendment in the August 22,
1995, Federal Register (60 FR 43576), provided an opportunity for a
public hearing or meeting on its substantive adequacy, and invited
public comment on its adequacy (administrative record No. NM-760).
Because no one requested a public hearing or meeting, none was held.
The public comment period ended on September 21, 1995.
During its review of the amendment, OSM identified concerns
relating to the provisions of the New Mexico Abandoned Mine Reclamation
Act at NMSA 69-25B-2 and 69-25B-3.B, lands and water eligible for
reclamation; NMSA 69-25B-6.C, construction of public facilities; and
NMSA 69-25B-12, emergency powers. OSM notified New Mexico of these
concerns by letter dated September 27, 1995 (administrative record No.
NM-764).
New Mexico responded by telephone on April 10, 1995 (administrative
record No. NM-778), that it would not submit revisions to the amendment
and that OSM should proceed with the publication of this final rule
Federal Register document.
III. Director's Findings
As discussed below, the Director, in accordance with SMCRA and 30
CFR 884.14 and 884.15, finds, with certain exceptions and additional
requirements, that the proposed plan amendment submitted by New Mexico
on July 24, 1995, meets the requirements of the corresponding Federal
regulations and is consistent with SMCRA. Thus, the Director approves
the proposed amendment.
1. Nonsubstantive Revisions to New Mexico's Statutes
New Mexico proposed revisions to the following previously approved
statutes that are nonsubstantive in nature and consist of minor
editorial, recodification, and State agency name changes (corresponding
SMCRA provisions are listed in parentheses):
NMSA 69-25B-3.A and D (section 401(a) of SMCRA), definitions for
the terms ``director'' and ``fund,''
NMSA 69-25B-4 (section 401(a) of SMCRA), creation of abandoned
mine reclamation fund, and
NMSA 69-25B-6.B (section 409 (a) and (d) of SMCRA), filling
voids and sealing tunnels.
Because the proposed revisions to these previously-approved
statutes are nonsubstantive in nature, the Director finds that they are
consistent with the corresponding provisions of SMCRA. The Director
approved the proposed revisions to these statutes.
2. Substantive Revisions to New Mexico's Plan Provisions and Statutes
That Are Substantively Identical to the Corresponding Provisions of
SMCRA and the Federal Regulations
New Mexico proposed revisions to the following plan provisions and
statutes that are substantive in nature and contain language that is
substantively identical to the requirements of the corresponding
Federal regulations and SMCRA provisions (listed in parentheses):
Plan section 875.16 (30 CFR 875.16), exclusion of certain
noncoal reclamation sites,
[[Page 38377]]
Plan section 886.23(c) (30 CFR 886.23 (b)), reports,
NMSA 69-25B-3.C (30 CFR 870.5), definition of the term
``emergency,''
NMSA 69-25B-7 (sections 407 and 411 (g) of SMCRA), acquisition
and reclamation of land adversely affected by past mining practices,
and
NMSA 69-25B-8, (section 408 and 411(g) of SMCRA), liens.
Because these proposed New Mexico plan provisions and statutes are
substantively identical to the corresponding provisions of the Federal
regulations and SMCRA, the Director finds that they meet the
requirements of the Federal regulations and are consistent with SMCRA.
The Director approves the proposed revisions to these plan provisions
and statutes.
3. Plan Sections 874.16 and 875.20, Contractor Responsibility
New Mexico proposed plan sections 874.16 and 875.20 to provide
procedures that require the low bidders for abandoned mine land (AML)
coal and noncoal project contracts to clear OSM's Applicant/Violator
System (AVS) prior to the New Mexico AML office awarding project
contracts to any such bidders. AVS is a computer system used to track
the ownership and control relationships of parties involved in surface
coal mining and reclamation operations.
The counterpart Federal regulations at 30 CFR 874.16 for coal and
875.20 for noncoal, require that in order to receive AML funds, every
successful bidder for an AML contract must be eligible under 30 CFR
773.15(b)(1) at the time of contract award to receive a permit or
conditional permit to conduct surface coal mining operations, and that
bidder eligibility must be confirmed by OSM's automated AVS for each
contract to be awarded.
As proposed in sections 874.16 and 875.20 of the New Mexico plan,
successful bidders for AML contracts would have to clear AVS before
receiving a contract. A bidder could not clear AVS if, at the time of
contract award, the bidder could not qualify to receive a surface coal
mining and reclamation permit because the surface coal mining and
reclamation operation owned or controlled by either the bidder, or by
any person who owns or controls the bidder, was in violation of SMCRA,
any Federal rule or regulation promulgated pursuant thereto, a State
program, or any Federal or State law, rule, or regulation pertaining to
air or water environmental protection.
Unlike the Federal regulations at 30 CFR 874.16 and 875.20, New
Mexico's proposed plan provisions concerning contractor responsibility
contain details on how the AVS checks will be carried out. These
details include procedures that require New Mexico to provide OSM with
the information submitted by the apparent low bidder in order for OSM
to conduct the AVS check. This procedure is consistent with the
preamble for OSM's May 31, 1994, regulations, which states that ``[i]n
order to provide information that will allow the States to meet this
requirement, potential contractors may submit to OSM or the State
regulatory authority that ownership and control information enumerated
at 30 CFR 778.13 (c) and (d)'' (59 FR 28136, 28158). By the State
passing the bidder information to OSM for processing, the bidder is in
effect submitting the information to OSM for the AVS check. These
proposed procedural requirements meet the requirements of the Federal
regulations at 30 CFR 874.16 and 875.20.
In addition, New Mexico proposed at plan sections 874.16 and 875.20
that any subcontractor receiving 10 percent or more of the total
contract funding, and any contract inspector, would have to receive AVS
clearance before being allowed to work on an AML contract. No
counterpart requirements to these proposed provisions exist in the
Federal regulations, and the preamble for the Federal regulations at 30
CFR 874.16 and 875.20 does not address whether subcontractors and
contract inspectors must also clear AVS (May 31, 1994; 59 FR 28136,
28158 and 28164). Absent any specific requirements for subcontractors
and contract inspectors in the Federal regulations or the preamble
language for these regulations, New Mexico's proposed provisions
concerning subcontractors and contract inspectors are not inconsistent
with the Federal regulations at 30 CFR 874.16 and 875.20.
If, at any time in the future, OSM decides to promulgate
regulations or an interpretive rule to address subcontractors or
contract inspectors, it would notify New Mexico in accordance with 30
CFR Part 884.15(b) of any needed revisions to these plan sections.
For the above reasons, the Director finds that New Mexico's plan
provisions at sections 874.16 and 875.20 are consistent with the
Federal regulations at 30 CFR 874.16 and 875.20. The Director approves
these New Mexico plan provisions.
4. NMSA 69-25B-2 and NMSA 69-25B-3.B, Purpose of the New Mexico
Abandoned Mine Reclamation Act and Definition of ``Eligible Lands and
Water''.
New Mexico proposed at NMSA 69-25B-2 to delete the legal citation
for SMCRA and refer to it as ``SMCRA, as amended.'' This is a stylistic
revision that has no substantive effect on the New Mexico plan.
Therefore, the Director approves this proposed revision to the statute.
OSM addresses below substantive revisions to NMSA 69-25B-2 and NMSA
69-25B-3.B.
a. Deletion of ``prior to the enactment of that act and which'' and
deletion of ``prior to August 3, 1977''.--New Mexico also proposed at
NMSA 69-25B-2 to delete the phrase ``prior to the enactment of that act
and which'' from the provision which indicates that the purpose of New
Mexico's Abandoned Mine Reclamation Act (Act) is ``to promote the
reclamation of mined areas left without adequate reclamation prior to
the enactment of that act [SMCRA] and which continue, in their
unreclaimed condition, to substantially degrade the quality of the
environment.'' In addition, New Mexico proposed in its definition for
``eligible lands and water'' at NMSA 69-25B-3.B to delete the phrase
``prior to August 3, 1977.'' The effect of the proposed deletions from
NMSA 69-25B-2 and NMSA 69-25B-3.B makes coal lands and water affected
after August 3, 1977, eligible for reclamation under New Mexico's
statute.
Counterpart section 404 of SMCRA indicates that sites eligible for
reclamation are those left in an inadequate state ``prior to the date
[(August 3, 1977)] of enactment of this Act'' [(SMCRA)]. It provides,
as well, through its reference to section 402(g)(4) of SMCRA, for the
reclamation of certain sites affected by surface coal mining operations
between August 4, 1977, and December 31, 1980, and certain other sites
affected by surface coal mining operations between August 4, 1977, and
November 5, 1990. Through its reference to section 403(b)(1), it also
provides in a State that has not certified to the completion of all
known coal-related projects for the reclamation of the adverse effects
on water supplies that occurred both prior to and after August 3, 1977,
when such effects occurred predominantly prior to August 3, 1977, or
the dates and under the criteria set forth at section 402(g)(4)(B).
Therefore, under section 404 of SMCRA, only those post-August 3, 1977,
sites addressed by selections
[[Page 38378]]
402(g)(4) and 403(b) of SMCRA are allowed to be reclaimed under a State
plan. New Mexico has not proposed to revise its statute to add
counterparts to sections 402(g)(4) and 403(b) of SMCRA.
Because New Mexico at proposed NMSA 69-25B-2 and 69-25B-3.B has in
effect, through its deletion of the two phrases, revised its statute to
allow the reclamation of post-August 3, 1977, sites beyond those
allowed by sections 402(g)(4) and 403(b)(2) of SMCRA, these proposed
statutory provisions are not in compliance with section 404 of SMCRA.
Therefore, the Director does not approve these revisions, and requires
New Mexico to revise NMSA 69-25B-2 and NMSA 69-25B-3.B to preclude the
reclamation of post-SMCRA sites, with the only two possible exceptions
being that New Mexico may allow the reclamation of post-SMCRA sites if
it adopts counterparts to sections 402(g)(4) and/or 403(b) of SMCRA.
b. Deletion of the word ``coal''.--At NMSA 69-25B-3.B, New Mexico
proposed to delete the word ``coal'' from the phrases ``mined for
coal,'' ``coal processing,'' and ``other coal mining processes.'' The
effect of the deletion of the word ``coal'' (1) makes lands affected by
any type of mining operation, not just coal mining operations, eligible
for reclamation under the New Mexico plan and (2) allows New Mexico to
reclaim noncoal lands and water prior to reclaiming all coal lands and
water. These revisions also make the statute inconsistent with the
unrevised corresponding ``Ranking and Selection'' section of New
Mexico's plan, which continues to rank coal projects ahead of noncoal
projects.
Counterpart section 404 of SMCRA indicates that sites eligible for
reclamation are those affected by coal mining. It also provides,
through its reference to section 409 of SMCRA and the reference of
section 403(a)(1) in section 409(c)(1), for the reclamation of sites
affected by noncoal mining in States such as New Mexico that have not
certified completion of coal projects if the Governor makes a request
for reclamation of a noncoal site on the basis that the site poses an
extreme danger to public health, safety, general welfare, or property.
New Mexico's proposed deletion of the word ``coal'' from its
definition for ``eligible lands and water'' at NMSA 69-25B-3.B causes
the State's AML program not to be in compliance with section 404 of
SMCRA. The Director does not approve the deletion of the word ``coal''
at NMSA 69-25B-3.B and requires New Mexico to reinsert the word
``coal'' or otherwise revise its statute to preclude reclamation of
noncoal sites before coal sites, except in those limited circumstances
allowed by section 404 of SMCRA.
5. NMSA 69-25B-6, Objectives of the Fund
At NMSA 69-25B-6, New Mexico proposed to make stylistic changes
(use of ``the'' and ``those,'' instead of ``such'') and delete the
legal citation for the New Mexico Abandoned Mine Reclamation Act. None
of these revisions are substantive in nature. Therefore, the Director
approves these changes to this statute.
OSM addresses below substantive revisions to NMSA 69-25B-6.
a. NMSA 69-25B-6.A, Expenditure Priorities.--New Mexico proposed at
NMSA 69-25B-6.A (1) through (3), (5) and (6) to delete the word
``coal'' in several instances so that the objectives of the State
abandoned mine reclamation fund are to protect the public against the
adverse effects of ``mining practices'' and ``mining development''
respectively rather than ``coal mining practices'' and ``coal
development.'' Except for the proposed deletion of the word ``coal,''
these provisions are substantively identical to the provisions at
section Counterpart section 403(a) of SMCRA indicates that sites
eligible for reclamation are those affected by coal mining. New
Mexico's proposed deletion of the word ``coal'' at NMSA 69-25B-6.A
causes this provision to be not in compliance with section 403(a) of
SMCRA. (See finding No. 4.6.) Therefore, the Director does not approve
the deletion of the word ``coal'' at NMSA 69-25B-6.A, and requires New
Mexico to revise its provisions to reflect the priorities for
expenditures at counterpart 403(a) of the SMCRA.
In addition, New Mexico still retains, at NMSA 69-25B-6.A(4) and in
item No. I(d) of the ``Ranking and Selection'' section of its plan, as
its fourth priority, the expenditure of funds for ``research and
demonstration projects relating to the development of surface mining
reclamation and water quality control program methods and techniques.''
The counterpart provision at section 403(a)(4) of SMCRA was elected by
the Energy Policy Act of 1992, Pub. L. 102-486 (October 24, 1992), and
the subsequent paragraphs (5) and (6) were renumbered accordingly. To
be in compliance with section 403(a) of SMCRA, the Director requires
New Mexico to delete NMSA 69-25B-6.A(4) and item No. I(d) of the
``Ranking and Selection'' section of its plan. In the intervening
period until New Mexico revises its statute and plan to be consistent
with section 403(a) of SMCRA, OSM cannot approve any New Mexico grant
applications for research and demonstration projects relating to the
development of surface mining reclamation and water control program
methods and techniques.
The Director notes that New Mexico has not inserted into its
statute a counterpart to section 403(b) of SMCRA, which provides for
mitigation of adverse effects to water supplies caused by coal mining
practices. Lack of a counterpart provision in the New Mexico plan does
not make the plan inconsistent with SMCRA or the Federal regulations,
but if New Mexico wished to expend funds for a water project as defined
at 403(b)(1) of SMCRA, it would be prevented from utilizing up to 30
percent of the AML funds allocated to the State under 402(g)(1) and (5)
for this purpose, because it appears that the plan lacks the statutory
authority. If such projects have been identified in the State's ranking
and selection process, New Mexico may wish to amend its plan so that it
has the proper authority to proceed with such water projects.
b. NMSA 69-25B-6.C, Public Facilities.--New Mexico proposed at NMSA
69-25B-6.C to delete the word ``coal'' as used in ``communities
impacted by coal mining development,'' where money in the fund may be
expended for the purpose of constructing specific public facilities if
certain criteria are met. Prior to the Abandoned Mine Reclamation Act
(AMRA) of 1990, Pub. L. 101-508 (November 5, 1990), a counterpart
provision in SMCRA existed at section 402(g)(2). However, AMRA deleted
the provision there and created a new provision at section 411(e). This
newly-created section addresses the priority of reclamation projects
after the State has certified completion of coal projects and provides
that ``[r]eclamation projects involving * * * the construction of
public facilities in communities impacted by coal or other mineral
mining and processing practices, shall be deemed part of the objects
set forth, and undertaken as they relate to, the priorities stated in
subsection (c).''
Proposed NMSA 69-25B-6.C is deficient by allowing, through the
deletion of the word ``coal,'' for the undertaking of noncoal projects
prior to New Mexico's certification of completion of coal projects and,
through its reference to NMSA 69-25B-6.A, which includes NMSA 69-25B-
6.A(4), and as discussed above, no longer has a counterpart at section
403(a) of SMCRA. Therefore, the Director requires New Mexico to
reinsert the word ``coal'' at NMSA 69-25B-6.C. The Director also
reiterates that to the extent that the
[[Page 38379]]
provisions of NMSA 69-25B-6.A(4) apply by reference, New Mexico would
not receive OSM's approval to expend funds for research and
demonstration projects relating to the development of surface mining
reclamation and water control program methods and techniques. (See
finding No. 5.a.)
6. NMSA 69-25B-12, Emergency Powers
New Mexico proposed at NMSA 69-25B-12 to delete the word ``coal''
from its provisions setting forth emergency powers for the Director of
the Mining and Minerals Division.
Counterpart section 410 of SMCRA provides for an emergency program
to restore, reclaim, abate, control, or prevent the adverse effects of
coal mining practices on eligible lands. This emergency program extends
only to coal lands and water and is a Federal responsibility except in
those cases where a State has sought and been given such authority.
In 1985, New Mexico enacted into law NMSA 69-25B-12, which is the
State counterpart to section 410 of SMCRA for the assumption by New
Mexico of an emergency program. On May 9, 1986, New Mexico of an
emergency program. On May 9, 1986, New Mexico submitted a formal
amendment in which it requested approval of a State emergency program
(administrative record Nos. NM-AML-36 and 37). New Mexico subsequently
withdrew its request on August 22, 1988 (administrative record NO. NM-
AML-51).
The amendment currently under review by OSM still includes NMSA 69-
25B-12, but OSM understands that New Mexico's intent at this time is
not to assume an emergency program. Therefore, the Director reluctantly
cannot approve NMSA 69-25B-12. Even though OSM strongly supports and
encourages State assumption of emergency programs, NMSA 69-25B-12 will
have no effect in New Mexico's AML program until such time as New
Mexico requests, with supporting documentation, an emergency program
limited to coal reclamation only, and OSM approves it.
IV. Summary and Disposition of Comments
Following are summaries of all substantive written comments on the
proposed amendment that were received by OSM, and OSM's responses to
them.
1. Public Comments
OSM invited public comments on the proposed amendment, but none
were received.
2. Federal Agency Comments
Pursuant to 30 CFR 884.15(a) and 884.14(a)(2), OSM solicited
comments on the proposed amendment from various Federal agencies with
an actual or potential interest in the New Mexico plan (administrative
record No. NM-759).
U.S. Bureau of Mines.--The U.S. Bureau of Mines, in a telephone
conversation on September 7, 1955, responded that it had no comments on
the proposed amendment (administrative record No. NM-761).
U.S. Environmental Protection Agency (EPA).--EPA responded on
September 7, 1995 (administrative record No. NM-762), with comments on
the proposed amendments to the New Mexico plan and New Mexico Abandoned
Mine Reclamation Act.
EPA agreed with the deletion of specific references to ``coal''
mining throughout the amendments because the State's act should not be
restricted to coal mining, as the references to ``coal'' would suggest.
OSM agrees that in some instances deletion of the word ``coal'' is
appropriate, but as discussed at finding Nos. 4.a and 5.a and b above,
the proposed deletions cause certain statutes of New Mexico's act to be
deficient.
EPA commented that NMSA 69-25B-6.C should specify the types of
public facilities that may be built with money from the Abandoned Mine
Reclamation Fund. The counterpart provisions at sections 411 (e) and
(f) of SMCRA allow for the construction of public facilities in
communities impacted by coal or other mineral mining and processing
practices and for activities or construction of specific public
facilities related to the coal or minerals industry in States impacted
by coal or minerals development when a need is established and the
Secretary of the Interior concurs in the need. ``Public facilities''
are not specifically defined in SMCRA. The scope of public facilities
funded under section 411 of SMCRA is very broad and covers facilities
related in some way to the coal or minerals industry in a State. OSM is
not requiring New Mexico to revise NMSA 69-25B-6.C to list types of
public facilities addressed by the statute.
EPA commented that NMSA 69-25B-7.D, which provides in part that
``the price paid for land acquired under this section shall reflect the
market value of the land as adversely affected by past mining
practices,'' is inconsistent with the Federal land acquisition
regulations. EPA commented further that the price to be paid for land
acquired pursuant to the New Mexico Abandoned Mine Reclamation Act
should reflect the fair market value of land as ``unaffected by
contamination.'' This change could cause New Mexico to pay a higher
price for lands acquired under NMSA 69-25B-7, and would cause NMSA 69-
25B-7.D to be inconsistent with SMCRA. Counterpart sections 407(d) and
411(g) of SMCRA require that the price paid for acquired lands reflect
the market value of the lands as ``adversely affected by past mining
practices.'' Because the price to be paid for acquired lands at NMSA
69-25B-7.D is consistent with section 407(d) of SMCRA, OSM is not
requiring New Mexico to make any additional changes to this statute.
Lastly, EPA commented that NMSA 69-25B-8 should provide for the
disposition of monies collected through liens (i.e., deposit monies in
the Abandoned Mine Reclamation Fund or use them to reimburse the
Federal government). New Mexico, at unrevised plan section
884.13(c)(5), requires that ``monies derived from the satisfaction of
liens established under this part shall be deposited in the Abandoned
Mine Reclamation Fund.'' This provision already satisfies EPA's
concern.
Bureau of Land Management (BLM)--The BLM New Mexico State Office
suggested on August 24, 1995, two changes to the proposed amendment
(administrative record No. NM-765). BLM suggested that the ownership
and control information proposed at plan sections 874.16 and 875.20
could be changed by adding ``[i]f the Apparent Low Bidder is
unqualifiable, the AML office may process a subsequent Low Bidder
without reinitiating the bidding process.'' This suggestion was offered
as an option to allow for a streamlined bidding process and cost
savings in the event of an unqualifiable low bidder rejection.
OSM responds that the requirements proposed by New Mexico at plan
sections 874.16 and 875.20 are consistent with the requirements of the
Federal regulations concerning contractor responsibility at 30 CFR
874.16 and 875.20. (See finding No. 3.) OSM has passed BLM's comment on
to the New Mexico Mining and Minerals Division. It is left to the State
to determine whether it will adopt the suggestion.
BLM also suggested that the amendment does not assert that funds
available for reclamation through the abandoned mine act should address
coal reclamation before noncoal reclamation. BLM stated that including
wording that requires AML funds to be used for coal reclamation before
noncoal reclamation would assure that the amendment is
[[Page 38380]]
fully compatible with the Federal statute.
OSM agrees that New Mexico's statute does not require this (see
finding No. 4.b). New Mexico's plan section 884.13(c)(2), which is not
proposed for revisions in this amendment, does require that coal
reclamation be completed before noncoal reclamation, except, upon the
request of the Governor of New Mexico, reclamation can occur on noncoal
sites to protect the public from extreme hazards endangering life and
property resulting from the adverse effects of past noncoal mining
practices. This plan provision is consistent with sections 403 and 409
of SMCRA and the implementing Federal regulations at 30 CFR 874.13 and
875.12. Therefore, OSM is not requiring New Mexico to provide a
statement as suggested by BLM that requires AML funds to be used for
coal reclamation before noncoal reclamation, but as discussed in
finding No. 4.b. above, OSM is requiring New Mexico to reinsert the
word ``coal'' at NMSA 69-25B-3.B or otherwise revise its statute to
preclude reclamation of noncoal sites before coal sites, except in
those limited circumstances allowed by section 404 of SMCRA.
V. Director's Decision
Based on the above findings, the Director approves, with certain
exceptions and/or additional requirements, New Mexico's proposed plan
amendment as submitted on July 24, 1995.
With the requirement that New Mexico further revise its statutes,
the Director does not approve, as discussed in: finding Nos. 4.a and b,
NMSA 69-25B-2 and 3.B, concerning the purpose of the New Mexico
Abandoned Mine Land Reclamation Act and definition of the term
``eligible lands and water;'' finding No. 5.a, NMSA 69-25B-6.A,
concerning objectives of the fund; finding No. 5.b, NMSA 69-25B-6.C,
concerning public facilities; and finding No. 6, NMSA 69-25B-12,
concerning emergency powers.
The Director approves, as discussed in: finding No. 1, NMSA 69-25B-
3.A and D, concerning definitions of ``director'' and ``fund,'' NMSA
69-25B-4, concerning creation of abandoned mine reclamation fund, and
NMSA 69-25B-6.B, concerning filling voids and sealing tunnels; finding
No. 2, plan section 875.16, concerning exclusion of certain noncoal
reclamation sites, plan section 886.23(c), concerning reports, NMSA 69-
25B-3.C, concerning definition of ``emergency,'' NMSA 69-25B-7,
concerning acquisition and reclamation of land adversely affected by
past mining practices, and NMSA 69-25B-8, concerning liens; and finding
No. 3, plan sections 874.16 and 875.20, concerning contractor
responsibility.
The Director approves the plan provisions and statutes as proposed
by New Mexico with the provision that they be fully promulgated in
identical form to the plan provisions and statutes submitted to and
reviewed by OSM and the public.
The Federal regulations at 30 CFR Part 931, codifying decisions
concerning the New Mexico plan, are being amended to implement this
decision. This final rule is being made effective immediately to
expedite the State plan amendment process and to encourage States to
bring their plans into conformity with the Federal standards without
undue delay. Consistency of State and Federal standards is required by
SMCRA.
VI. Procedural Determinations
1. Executive Order 12866
This rule is exempted from review by the Office of Management and
Budget (OMB) under Executive Order 12866 (Regulatory Planning and
Review).
2. Executive Order 12988
The Department of the Interior has conducted the reviews required
by section 3 of Executive Order 12988 (Civil Justice Reform) and has
determined that this rule meets the applicable standards of subsections
(a) and (b) of that section. However, these standards are not
applicable to the actual language of Tribe or State AMLR plans and
revisions thereof since each such plan is drafted and promulgated by a
specific Tribe or State, not by OSM. Decisions on proposed Tribe or
State AMLR plans and revisions thereof submitted by a Tribe or State
are based on a determination of whether the submittal meets the
requirements of Title IV of SMCRA (30 U.S.C. 1231-1243) and the
applicable Federal regulations at 30 CFR Parts 884 and 888.
3. National Environmental Policy Act
No environmental impact statement is required for this rule since
agency decisions on proposed Tribe or State AMLR plans and revisions
thereof are categorically excluded from compliance with the National
Environmental Policy Act (42 U.S.C. 4332) by the Manual of the
Department of the Interior (516 DM 6, appendix 8, paragraph 8.4B(29)).
4. Paperwork Reduction Act
This rule does not contain information collection requirements that
require approval by OMB under the Paperwork Reduction Act (44 U.S.C.
3507 et seq.).
5. Regulatory Flexibility Act
The Department of the Interior has determined that this rule will
not have a significant economic impact on a substantial number of small
entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.).
The Tribe or State submittal which is the subject of this rule is based
upon Federal regulations for which an economic analysis was prepared
and certification made that such regulations would not have a
significant economic effect upon a substantial number of small
entities. Accordingly, this rule will ensure that existing requirements
established by SMCRA or previously promulgated by OSM will be
implemented by the Tribe or State. In making the determination as to
whether this rule would have a significant economic impact, the
Department relied upon the data and assumptions in the analyses for the
corresponding Federal regulations.
6. Unfunded Mandates Act
This rule will not impose a cost of $100 million or more in any
given year on any governmental entity or private sector.
List of Subjects in 30 CFR Part 931
Abandoned mine reclamation programs, Intergovernmental relations,
Surface mining, Underground mining.
Dated: June 26, 1996.
Peter A. Rutledge,
Acting Regional Director, Western Regional Coordinating Center.
For the reasons set out in the preamble, Title 30, Chapter VII,
Subchapter T of the Code of Federal Regulations is amended as set forth
below:
PART 931--NEW MEXICO
1. The authority citation for Part 931 continues to read as
follows:
Authority: 30 U.S.C. 1201 et seq.
2. Section 931.25 is added to read as follows:
Sec. 931.25 Approval of abandoned mine land reclamation plan
amendments.
(a) With the exception of New Mexico Statute Annotated (NMSA) 69-
25B-2, concerning the purpose of the New Mexico Abandoned Mine Land
Reclamation Act, NMSA 69-25B-3.B, concerning the definition of
``eligible lands and water,'' NMSA 69-25B-6.A, concerning objectives of
the fund, NMSA 69-25B-6.C, concerning public facilities, and NMSA 69-
25B-12,
[[Page 38381]]
concerning emergency powers, the addition of and revisions to the
following plan provisions and statutes, as submitted to OSM on July 24,
1995, are approved effective July 24, 1996:
Plan sections 874.16 and 875.20, contractor responsibility.
Plan section 875.16, exclusion of certain noncoal reclamation
sites.
Plan section 886.23(c), reports.
NMSA 69-25B-3.A, C, and D, definitions of ``director,''
``emergency'', and ``fund.''
NMSA 69-25B-4, creation of abandoned mine reclamation fund.
NMSA 69-25B-6.B, filling voids and sealing tunnels.
NMSA 69-25B-7, acquisition and reclamation of land adversely
affected by past mining practices.
NMSA 69-25B-8, liens.
(b) [Reserved]
3. Section 931.26 is added to read as follows:
Sec. 931.26 Required plan amendments.
Pursuant to 30 CFR 884.15, New Mexico is required to submit for
OSM's approval the following proposed plan amendments by the date
specified.
(a) By January 21, 1997, New Mexico shall revise NMSA 69-25B-2 and
3.B to provide references to August 3, 1977, the effective date of
SMCRA, or otherwise modify its plan, to ensure that the reclamation of
post-August 3, 1977, sites is specifically provided for with
counterpart provisions to sections 402(g)(4) and 403(b)(2).
(b) By January 21, 1997, New Mexico shall further revise NMSA 69-
25B-3.B to provide a definition for ``eligible lands and water'' that
is consistent with the term as defined at section 404 of SMCRA.
(c) By January 21, 1997, New Mexico shall revise NMSA 69-25B-6.A,
or otherwise modify its plan, to reflect the same expenditure
priorities as counterpart section 403(a) of SMCRA.
(d) By January 21, 1997 New Mexico shall revise NMSA 69-25B-6.A by
deleting NMSA 69-25B-6.A(4) and item No. I (d) of the ``Ranking and
Selection'' section of its plan.
(e) By January 21, 1997, New Mexico shall revise NMSA 69-25B-6.C by
reinserting the word ``coal.''
[FR Doc. 96-18612 Filed 7-23-96; 8:45 am]
BILLING CODE 4310-05-M
Complete official Federal Register PDF
FR Doc. 96-18611 Oklahoma Regulatory Program
[Federal Register Volume 61, Number 143 (Wednesday, July 24, 1996)]
[Rules and Regulations]
[Pages 38381-38382]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-18611]
-----------------------------------------------------------------------
DEPARTMENT OF THE INTERIOR
30 CFR Part 936
[SPATS No. OK-018-FOR]
Oklahoma Regulatory Program
AGENCY: Office of Surface Mining Reclamation and Enforcement (OSM),
Interior.
ACTION: Final rule; approval of amendment.
-----------------------------------------------------------------------
SUMMARY: OSM is approving a proposed amendment to the Oklahoma
regulatory program (hereinafter referred to as the ``Oklahoma
program'') under the Surface Mining Control and Reclamation Act of 1977
(SMCRA). Oklahoma proposed to recodify and reinstate regulations
pertaining to an exemption for coal extraction incidental to
government-financed or other construction. The amendment is intended to
revise the Oklahoma program to be consistent with the corresponding
Federal regulations.
EFFECTIVE DATE: July 24, 1996.
FOR FURTHER INFORMATION CONTACT:
Jack R. Carson, Acting Director, Tulsa Field Office, Office of Surface
Mining Reclamation and Enforcement, 5100 East Skelly Drive, Suite 470,
Tulsa, Oklahoma 74135-6548, Telephone: (918) 581-6430.
SUPPLEMENTARY INFORMATION:
I. Background on the Oklahoma Program
II. Submission of the Proposed Amendment
III. Director's Findings
IV. Summary and Disposition of Comments
V. Director's Decision
VI. Procedural Determinations
I. Background on the Oklahoma Program
On January 19, 1981, the Secretary of the Interior conditionally
approved the Oklahoma program. Background information on the Oklahoma
program, including the Secretary's findings, the disposition of
comments, and the conditions of approval can be found in the January
19, 1981, Federal Register (46 FR 4902). Subsequent actions concerning
the conditions of approval and program amendments can be found at 30
CFR 936.15 and 936.16.
II. Submission of the Proposed Amendment
By letter dated April 26, 1996 (Administrative Record No. OK-974),
Oklahoma submitted a proposed amendment to its program pursuant to
SMCRA. Oklahoma submitted the proposed amendment at its own initiative.
Oklahoma, in accordance with the standards set forth by the Oklahoma
State Legislature and the Oklahoma Office of Administrative Code,
proposed to recodify and reinstate regulations pertaining to an
exemption for coal extraction incidental to government-financed or
other construction at Oklahoma Administrative Code (OAC) 460, Chapter
20, Subchapter 6 as follows: OAC 460:20-6-1, Purpose; 460:20-6-2,
Responsibility; 460:20-6-3, Definitions; 460:20-6-4, Applicability; and
460:20-6-5, Information to be maintained on site. These regulations
were previously codified as Part 707, and they were inadvertently
omitted from the Oklahoma program during Oklahoma's promulgation of its
regulations after a previous rulemaking.
OSM announced receipt of the proposed amendment in the May 21,
1996, Federal Register (61 FR 25426), and in the same document opened
the public comment period and provided and opportunity for a public
hearing on the adequacy of the proposed amendment. The public comment
period closed on June 20, 1996.
III. Director's Findings
Set forth below, pursuant to SMCRA and the Federal regulations at
30 CFR 732.15 and 732.17, are the Director's findings concerning the
proposed amendment.
OAC 460:20-6-1 through 460:20-6-5 Exemption for Coal Extraction
Incidental to Government-Financed or Other Construction
The proposed regulations contain language that is substantively
identical to the provisions of the corresponding Federal regulations
shown in brackets. OAC 460:20-6-1 [30 CFR 707.1] specifies the purpose
of the regulations as establishing procedures for determining those
surface coal mining and reclamation operations that meet the exemption
criteria for coal extraction as an incidental part of government-
financed construction. OAC 460:20-6-2 [30 CFR 707.4] sets out the
State's responsibility for enforcing the requirements of the
regulations. It also provides that persons conducting coal extraction
as an incidental part of government-financed construction are
responsible for keeping specified documentation on the site of the
extraction operation. OAC 460:20-6-3 [30 CFR 707.5] contains
definitions for the terms ``Extraction of coal as an incidental part'';
``Government financing agency''; and ``Government-financed
construction.'' OAC 460:20-6-4 [30 CFR 707.11] specifies that a permit
must be obtained unless the coal extraction is an incidental part of
government-financed construction. OAC 460:20-6-5 [30 CFR 707.12]
specifies the information that must be maintained on the site of the
extraction operation.
Because the proposed regulations are identical in meaning to the
corresponding Federal regulations, the Director finds that they are no
less effective than the Federal regulations. Therefore, the Director is
approving the
[[Page 38382]]
proposed recodification and reinstatement of Oklahoma's regulations at
OAC 460:20-6-1 through 460:20-6-5.
IV. Summary and Disposition of Comments
Public Comments
The Director solicited public comments and provided an opportunity
for a public hearing on the proposed amendment. No public comments were
received, and because no one requested an opportunity to speak at a
public hearing, no hearing was held.
Federal Agency Comments
Pursuant to 30 CFR 732.17(h)(11)(i), the Director solicited
comments on the proposed amendment from various Federal agencies with
an actual or potential interest in the Oklahoma program. No comments
were received.
Environmental Protection Agency (EPA)
Pursuant to 30 CFR 732.17(h)(11)(ii), OSM is required to obtain the
written concurrence of the EPA with respect to those provisions of the
proposed program amendment that relate to air or water quality
standards promulgated under the authority of the Clean Water Act (33
U.S.C. 1251 et seq.) or the Clean Air Act (42 U.S.C. 7401 et seq.).
None of the revisions that Oklahoma proposed to make in this amendment
pertain to air or water quality standards. Therefore, OSM did not
request EPA's concurrence.
Pursuant to 732.17(h)(11)(i), OSM solicited comments on the
proposed amendment form EPA (Administrative Record No. OK-974.02). EPA
did not respond to OSM's request.
State Historical Preservation Officer (SHPO) and the Advisory Council
on Historic Preservation (ACHP)
Pursuant to 30 CFR 732.17(h)(4), OSM is required to solicit
comments on proposed amendments which may have an effect on historic
properties from the SHPO and ACHP. OSM solicited comments on the
proposed amendment from the SHPO and ACHP (Administrative Record No.
OK-974.02). Neither SHPO nor ACHP responded to OSM's request.
V. Director's Decision
Based on the above findings, the Director approves the proposed
amendment as submitted by Oklahoma on April 26, 1996.
The Federal regulations at 30 CFR Part 936, codifying decisions
concerning the Oklahoma program, are being amended to implement this
decision. This final rule is being made effective immediately to
expedite the State program amendment process and to encourage States to
bring their programs into conformity with the Federal standards without
undue delay. Consistency of State and Federal standards is required by
SMCRA.
VI. Procedural Determinations
Executive Order 12866
This rule is exempted from review by the Office of Management and
Budget (OMB) under Executive Order 12866 (Regulatory Planning and
Review).
Executive Order 12988
The Department of the Interior has conducted the reviews required
by section 3 of Executive Order 12988 (Civil Justice Reform) and has
determined that, to the extent allowed by law, this rule meets the
applicable standards of subsections (a) and (b) of that section.
However, these standards are not applicable to the actual language of
State regulatory programs and program amendments since each such
program is drafted and promulgated by a specific State, not by OSM.
Under sections 503 and 505 of SMCRA (30 U.S.C. 1253 and 1255) and 30
CFR 730.11, 732.15, and 732.17(h)(10), decisions on proposed State
regulatory programs and program amendments submitted by the States must
be based solely on a determination of whether the submittal is
consistent with SMCRA and its implementing Federal regulations and
whether the other requirements of 30 CFR Parts 730, 731, and 732 have
been met.
National Environmental Policy Act
No environmental impact statement is required for this rule since
section 702(d) of SMCRA (30 U.S.C. 1292(d)) provides that agency
decisions on proposed State regulatory program provisions do not
constitute major Federal actions within the meaning of section
102(2)(C) of the National Environmental Policy Act (42 U.S.C.
4332(2)(C)).
Paperwork Reduction Act
This rule does not contain information collection requirements that
require approval by OMB under the Paperwork Reduction Act (44 U.S.C.
3507 et seq.).
Regulatory Flexibility Act
The Department of the Interior has determined that this rule will
not have a significant economic impact on a substantial number of small
entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.).
The State submittal which is the subject of this rule is based upon
corresponding Federal regulations for which an economic analysis was
prepared and certification made that such regulations would not have a
significant economic effect upon a substantial number of small
entities. Accordingly, this rule will ensure that existing requirements
previously promulgated by OSM will be implemented by the State. In
making the determination as to whether this rule would have a
significant economic impact, the Department relied upon the data and
assumptions for the corresponding Federal regulations.
Unfunded Mandates
This rule will not impose a cost of $100 million or more in any
given year on any governmental entity or the private sector.
List of Subjects in 30 CFR Part 936
Intergovernmental relations, Surface mining, Underground mining.
Dated: July 3, 1996.
Brent Wahlquist,
Regional Director, Mid-Continent Regional Coordinating Center.
For the reasons set out in the preamble, 30 CFR Part 936 is amended
as set forth below:
PART 936--OKLAHOMA
1. The authority citation for Part 936 continues to read as
follows:
Authority: 30 U.S.C. 1201 et seq.
2. Section 936.15 is amended by adding paragraph (r) to read as
follows:
Sec. 936.15 Approval of regulatory program amendments.
* * * * *
(r) The additions of OAC 460:20-6-1 through 460:20-6-5 to the
Oklahoma Coal Rules and Regulations, concerning an exemption for coal
extraction incidental to government-financed or other construction as
submitted to OSM on April 26, 1996, are approved effective July 24,
1996.
[FR Doc. 96-18611 Filed 7-23-96; 8:45 am]
BILLING CODE 4310-05-M
Complete official Federal Register PDF
FR Doc. 96-18610 West Virginia Permanent Regulatory Program
[Federal Register Volume 61, Number 143 (Wednesday, July 24, 1996)]
[Rules and Regulations]
[Pages 38382-38388]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-18610]
-----------------------------------------------------------------------
DEPARTMENT OF THE INTERIOR
30 CFR Part 948
[WV-075-FOR]
West Virginia Permanent Regulatory Program
AGENCY: Office of Surface Mining Reclamation and Enforcement (OSM),
Interior.
ACTION: Final rule; approval of amendment.
-----------------------------------------------------------------------
SUMMARY: OSM is announcing the approval, with certain exceptions, of
[[Page 38383]]
amendments to the West Virginia permanent regulatory program
(hereinafter referred to as the West Virginia program) under the
Surface Mining Control and Reclamation Act of 1977 (SMCRA Act). The
amendments concern revisions to the West Virginia Surface Mining
Reclamation Regulations. The amendments are intended to improve the
clarity and effectiveness of the West Virginia program, and to revise
the State program to be consistent with the corresponding Federal
regulations.
EFFECTIVE DATE: July 24, 1996.
FOR FURTHER INFORMATION CONTACT:
Mr. James C. Blankenship, Jr., Director, Charleston Field Office,
Office of Surface Mining Reclamation and Enforcement, 1027 Virginia
Street, East, Charleston, West Virginia 25301. Telephone: (304) 347-
7158.
SUPPLEMENTARY INFORMATION:
I. Background on the West Virginia Program.
II. Submission of the Amendment.
III. Director's Findings.
IV. Summary and Disposition of Comments.
V. Director's Decision.
VI. Procedural Determinations.
I. Background on the West Virginia Program
On January 21, 1981, the Secretary of the Interior conditionally
approved the West Virginia program. Background information on the West
Virginia program, including the Secretary's findings, the disposition
of comments, and the conditions of the approval can be found in the
January 21, 1981, Federal Register (46 FR 5915-5956). Subsequent
actions concerning the West Virginia program and previous amendments
are codified at 30 CFR 948.10, 948.12, 948.13, 948.15, and 948.16.
II. Submission of the Amendment
By letter dated April 2, 1996 (Administrative Record Number WV-
1024), the West Virginia Division of Environmental Protection (WVDEP)
submitted an amendment to its approved permanent regulatory program
pursuant to 30 CFR 732.17. The amendment contains revisions to the West
Virginia Surface Mining Reclamation Regulations (CSR Sec. 38-2-1 et
seq.).
The proposed amendment was published in the April 23, 1996, Federal
Register (61 FR 17859), and in the same notice, OSM opened the public
comment period and provided opportunity for a public hearing on the
adequacy of the proposed amendment. The comment period closed on May
23, 1996.
The last time the State regulations were significantly revised was
on February 21, 1996. The Director partially approved the revisions in
the February 21, 1996, Federal Register (61 FR 6511-6537). See 30 CFR
948.15 for the provisions partially approved, and 30 CFR 948.16 for the
required amendments.
III. Director's Findings
Set forth below, pursuant to SMCRA and the Federal regulations at
30 CFR 732.15 and 732.17, are the Director's findings concerning the
proposed amendment to the West Virginia program.
1. Sec. 38-2-2.106 Definition of ``Safety factor.'' This definition
is revised to mean the ratio of the sum of the resisting forces to the
sum of the loading or driving forces as determined by acceptable
engineering practices. Prior to this change, the term was defined as
the ratio of the sum of the resisting forces to the sum of the loading
forces in a constructed valley fill, backfill, dam, or refuse pile. The
Director finds the term as revised to be substantively identical to and
no less effective than one of the two options contained in the
counterpart Federal definition at 30 CFR 701.5
2. Sec. 38-2-3.2(e) Readvertisement of permit applications. This
provision is amended by adding the phrase, ``that do not significantly
affect the health, safety or welfare of the public and,'' to the first
sentence. With this change, a limited number of minor changes may be
grouped and readvertised if the changes do not significantly affect the
health, safety or welfare of the public and do not significantly affect
the method of operation, the reclamation plan, and/or the original
advertisement. This notice is in addition to the original advertisement
requirement of one advertisement per week, for four successive weeks.
The Director finds the added language does not render the provision
less effective than the Federal regulations at 30 CFR 773.13 concerning
public participation in permit processing.
3. Sec. 38-2-3.6(h)(5) Certification of drainage/sediment control
structure designs. This provision is amended by changing a cited
reference concerning dams. ``Article 5D of Chapter 20'' is deleted and
replaced by ``Article 14 of Chapter 22.'' The Director finds that the
citation change does not render the provision less effective than the
Federal regulations at 30 CFR 780.25(a) concerning preparation and
certification of plans.
4. Sec. 38-2-3.8(c) Revision or reconstruction of existing
structures and support facilities. This provision is amended by adding
the following language: ``Provided, that those [existing] structures
and facilities, where it can be demonstrated that reconstruction or
revision would result in greater environmental harm and the performance
standards set forth in the Act and these regulations can otherwise be
met, may be exempt from revision or construction.'' This amendment, in
effect, provides an alternative to requiring revision or reconstruction
of structures or support facilities in cases where greater
environmental harm would result from the revisions or reconstruction.
The Federal regulations at 30 CFR 701.11(e)(1), provide for a
similar exemption. Such exemptions to design requirements for existing
structures can be granted as part of the permit application process
after obtaining the information required by the State counterparts to
30 CFR 780.12 or 784.12 and after making the findings required in the
State counterparts to 30 CFR 773.15. Proposed subsection 3.8(c) does
not refer to these State counterparts. However, since these
counterparts are, indeed, part of the State's program (see Sec. 38-2-
3.8(b), 3.32(d)(6)), cross-references to those provisions in subsection
3.8(c) are unnecessary.
The Federal regulations at 30 CFR 701.11(e)(2) provide that such
exemptions shall not apply to (a) the requirements for existing and new
coal mine waste disposal facilities; and (b) the requirements to
restore the approximate original contour of the land. The West Virginia
program, however, lacks a counterpart to these Federal limitations
concerning the applicability of the proposed exemption.
The Director is approving the amendments to CSR 38-2-3.8(c). In
addition, the Director is requiring that West Virginia further amend
the West Virginia program to be consistent with 30 CFR 701.11(e)(2) by
clarifying that the exemption at CSR 38-2-3.8(c) does not apply to 1)
the requirements for new and existing coal mine waste disposal
facilities; and 2) the requirements to restore the land to approximate
original contour.
5. Sec. 38-2-3.27 Permit renewals and extensions. The introductory
paragraph of this provision is amended by deleting the word ``may'' and
adding in its place the word ``shall.'' In addition, language has been
deleted that required all backfilling and grading be completed within
60 days prior to the expiration date of the permit, and that an
application for Phase I bond release be filed prior to the expiration
date of the
[[Page 38384]]
permit. As amended, the provision provides that the Director of the
WVDEP shall waive the requirements for renewal if the permittee
certifies in writing that all coal extraction is completed, that all
backfilling and regrading will be completed and reclamation activities
are ongoing. The Director finds that the proposed provision is
substantively identical to and no less effective than the Federal
regulations at 30 CFR 773.11, which provides that an operator does not
have to renew a permit to conduct reclamation activities.
6. Sec. 38-2-4.4 Infrequently used access roads. This provision is
revised by deleting and adding rule citations. As amended, infrequently
used access roads may not be exempt from the requirements of Secs. 38-
2-4.2, 4.7(a), 4.8, 4.9, and 5.3. The Director finds the changes to be
consistent with the Federal regulations at 30 CFR 816/817.150. In
addition, the amendments satisfy the required program amendments
codified at 30 CFR 948.16(rr). 30 CFR 948.16(rrr) required that West
Virginia revise Sec. 38-2-4.4 to require that all infrequently used
access roads comply with Sec. 38-2-4.9. Since this required amendment
has been satisfied, it is hereby removed.
7. Sec. 38-2-4.12 Certification of primary roads. This provision is
amended by deleting the requirement that changes documented in the as-
built plans be submitted to the Director of WVDEP as a permit revision.
In its place, the following language is added: ``If as-built plans are
submitted, the certification shall describe how and to what extent the
construction deviates from the proposed design, and shall explain how
and certify that the road will meet performance standards.'' In effect,
these amendments replaces a requirement that all changes documented as
as-built plans be submitted as a permit revision, with a requirement
that when such changes are submitted, the submittal shall include an
explanation of the changes, and a certification that the changes will
meet performance standards
The Director finds that the deletion of the requirement to submit
as-built plans to the Director of the WVDEP renders the amendment
provision less effective than the Federal regulations at 30 CFR
774.11(c) concerning regulatory review of permits. In effect, the
automatic acceptance of certified as-built plans removes the regulatory
authority from its responsibility under 30 CFR 774.11(c) which requires
a finding for even minor permit revisions. This finding by the
regulatory authority must address all program requirements, not just
performance standards.
Therefore, the Director is approving the proposed changes, except
to the extent that the Director of the WVDEP is removed from the
responsibility of reviewing permit revisions (such as as-built plans
changes) as is required under 30 CFR 774.11(c). In addition, the
Director is requiring that the State further amend CSR 38-2-4.12 to
reinstate the following deleted language: ``and submitted for approval
to the Director as a permit revision.''
8. Sec. 38-2-5.4(c) Safety standards for embankment type
structures. The first paragraph of this provision is amended by
deleting the phrase ``which may include slurry impoundments.'' With
this amendment, the provision's safety standards apply to all
embankment type sediment control or other water retention structures.
The Director finds that the removal of the reference to slurry
impoundments renders the States provision unclear as to its application
to slurry impoundments. If, the provision does not apply to slurry
impoundments (which appears to be the purpose of the deletion), the
provision is rendered less effective than the Federal regulations at 30
CFR 816/817.49 and cannot be approved. Therefore, the Director is
approving the provision except to the extent that the provision does
not apply to slurry impoundments. In addition, the Director is
requiring that the State further amend the West Virginia program by
clarifying that the requirements at CSR 38-2-5.4(c) also apply to
slurry impoundments. The Director notes that this can be accomplished
either by reinstating the deleted language or be replacing the term
``water retention structure'' with the term ``impoundment.''
9. Sec. 38-2-11.6(a) Review of permits for adequacy of bond. This
provision is amended to relocate the site-specific bonding requirements
applicable to all four categories of mining at the time of permit
renewal or mid-term review, whichever occurs first. These requirements
also do not allow a permit to be renewed until the appropriate amount
of bond has been posted. However, the Director finds the proposed
revision, which is merely for organizational purposes, is not
inconsistent with the Federal bonding requirements at 30 CFR 800.13 and
30 CFR 774.15(c).
10. Sec. 38-2-11.6(c)(6), (d)(6), (e)(5), (f)(5) Bond reduction
credits. These provisions are being amended to delete, in various
places, the phrase ``within five (5) years of the date of SMA
approval.'' In effect, activities for which a permittee may receive
bond reduction credits are no longer required to be performed within
five years from the date of SMA approval. The Director finds that,
although there are no direct Federal counterparts, the proposed
provisions would have no significant financial impacts and, therefore,
would not adversely affect the findings that formed the basis for the
Secretary's approval of the alternative bonding system pursuant to 30
CFR 800.11(e).
11. Sec. 38-2-12.2(e) Bond release--chemical treatment. The
existing language of this provision is deleted and replaced by the
following:
Notwithstanding any other provisions of this rule, no bond release
or reduction will be granted if, at the time, water discharged from or
affected by the operation requires chemical treatment in order to
comply with applicable effluent limitations or water quality standards;
Provided, that the Director may approve a request for Phase I but not
Phase II or III, release if the applicant demonstrates to the
satisfaction of the Director that either:
(A) The remaining bond is adequate to assure long term treatment of
the drainage; or
(B) The operator has irrevocably committed other financial
resources which are adequate to assure long term treatment of the
drainage; Provided, that the alternate financial resources must be in
acceptable form, and meet the standards set forth in Section 11 of the
Act and Section 11 of these regulations; provided, however, that the
alternate financial arrangements shall provide a mechanism whereby the
Director can assume management of the resources and treatment work in
the event that the operator defaults for any reason; and provided
further, that default on a treatment obligation under this paragraph
shall be considered equivalent to a bond forfeiture, and the operator
will be subject to penalties and sanctions, including permit blocking,
as if a bond forfeiture had occurred.
In order to make such demonstration as referenced above, the
applicant shall address, at a minimum, the current and projected
quantity and quality of drainage to be treated, the anticipated
duration of treatment, the estimated capital and operating cost of the
treatment facility, and the calculations which demonstrate the adequacy
of the remaining bond or of the alternate financial resources.
In effect, the added language would allow, under the specified
circumstances, Phase I bond release on operations which require
chemical treatment in order to comply with applicable effluent
limitations or water quality standards.
[[Page 38385]]
The Director notes that the State's definition of ``chemical
treatment'' at Sec. 38-2-2.20 has only been partially approved by OSM.
Specifically, the language of the definition that excludes passive
treatment systems from being considered ``chemical treatment'' was not
approved to the extent that such passive treatment systems would be
applied in the context of Sec. 38-2-12.2(e) to authorize bond release
for sites with discharges that require passive treatment to meet
discharge standards. For a complete explanation of the partial
disapproval of the State's definition of ``chemical treatment,'' see
Finding B-2, in the February 21, 1996, Federal Register (61 FR 6511) at
page 6517.
The proposed language concerning incremental bond release could be
implemented in a manner that is no less effective than the Federal
requirements at 30 CFR 800.40(c) concerning bond release. The proposed
language provides that the bond remaining after Phase I release, or the
other financial resources committed to the treatment, must be adequate
to assure long-term treatment of this discharge. In addition, the new
language provides that the other financial resources committed to long-
term treatment must be irrevocably committed, and the currently
approved bonding requirements continue to apply. Finally, while these
new provisions will provide bond monies for long-term treatment, they
in no way eliminate the currently approved provisions that provide for
adequate bond monies to assure completion of the approved reclamation
plan (for example, to assure revegetation).
Therefore, the Director is approving the proposed revisions at CSR
38-2-12.2(e) to the extent that passive treatment, where it is
implemented to achieve compliance with effluent limitations or water
quality standards, is chemical treatment under the West Virginia
program definition of chemical treatment at CFR 38-2-2.20.
12. Sec. 38-2-14.3(c) Topsoil substitutes. The Director is
deferring action on this proposed amendment because it was
inadvertently omitted from the proposed rule notice published on April
23, 1996 (61 FR 17859) that announced the changes submitted by the
State and requested public comment. The Director will provide
opportunity for public comment on this change in the near future by
notice in the Federal Register.
13. Sec. 38-2-14.14(e)(4) Valley fills--rock core chimney drains.
This provision is being amended by deleting the third sentence, which
concerns the control of surface water runoff, and replacing that
language with the following:
Surface water runoff from areas above and adjacent to the fill
shall be diverted into properly designed and constructed stabilized
diversion channels which have been designed using best current
technology to safely pass the peak runoff from a 100 year, 24-hour
precipitation event. The channel shall be designed and constructed to
ensure stability of the fill, control erosion, and minimize water
infiltration into the fill.
The Federal regulations prohibit uncontrolled flow onto excess
spoil fills and require that diversion channels be constructed off the
fills. OSM's technical committee agreed that such diversions could be
constructed on durable rock fills, but it never addressed their use on
valley fills. (See the August 16, 1995, Federal Register (60 FR 42437)
for a discussion of OSM's approval of West Virginia's recently revised
provisions concerning durable rock fills.) Given the differences in the
construction techniques of the two types of fills, OSM cannot say with
any confidence that the proposal, which would allow the construction of
diversions on valley fills, its environmentally sound. The State needs
to submit scientific evidence to OSM demonstrating that the proposed
method of construction will not harm the long-term integrity of valley
fills. A technical evaluation of this issue must occur before OSM can
find the proposed State requirements at subsection 14.14(e)(4) to be no
less effective than 30 CFR 816/817.72(a)(2). Therefore, the Director is
not approving the proposed amendments at this time. Since this
requirement is to take effect on July 1, 1996, OSM requests that its
implementation be delayed and the WVDEP continue to require that runoff
be diverted around valley fills until the study can be completed and a
final determination is rendered by OSM.
14. Sec. 38-2-14.15(m) Coal processing waste disposal. This
provision is being amended by deleting the prohibition at 14.15(m)(1)
that coal processing waste ``will not contain acid producing or toxic
forming material.'' A new provision at 14.15(m)(2) is added to provide
as follows:
(2) The coal processing waste will not be placed in the backfill
unless it has been demonstrated to the satisfaction of the Director
that: (A) the coal processing waste to be placed based upon
laboratory testing (sic) to be non-toxic and/or non-acid producing;
or (B) an adequate handling plan including alkaline additives has
been developed and the material after alkaline addition is non-toxic
and/or non-acid producing.
The Director finds, that in accordance with 30 CFR 816/817.102(e),
except for the requirements concerning disposal, foundation
investigations, and emergency procedures, the proposed language is
consistent with and no less effective than the Federal regulations at
30 CFR 816/817.81 concerning coal mine waste. The Director is approving
this amendment only to the extent that, with the disposal of coal
processing waste in the backfill, the backfill will not exceed the
approximate original contour (AOC). If AOC is exceeded, then the
disposal of coal processing waste in the backfill must comply with the
West Virginia program counterparts to 30 CFR 816/817.83 concerning coal
mine waste--refuse piles. In addition, the Director is requiring that
the State further amend the West Virginia program to require compliance
with 30 CFR 816/817.81 (b), (d), and (e) regarding coal refuse
disposal, foundation investigations and emergency procedures and to
clarify that where the coal processing waste proposed to be placed in
the backfill contains acid- or toxic-producing materials, such material
must not be buried or stored in proximity to any drainage course such
as springs and seeps, must be protected from groundwater by the
appropriate use of rock drains under the backfill and along the
highwall, and be protected from water infiltration into the backfill by
the use of appropriate methods such as diversion drains for surface
runoff or encapsulation with clay or other material of low
permeability. That is, such acid- or toxic-producing materials must be
hydraulically separated from any groundwater and from water
infiltration into the backfill.
IV. Summary and Disposition of Comments
Federal Agency Comments
Pursuant to section 503(b) of SMCRA and 30 CFR 732.17(h)(11)(i), on
May 1, 1996, comments were solicited from various interested Federal
agencies (Administrative Record Number WV-1030). The U.S. Army Corps of
Engineers responded that they found the amendments to be satisfactory.
The U.S. Department of Labor, Mine Safety and Health Administration
(MSHA) responded with several comments. However, non of the comments
MSHA submitted pertain to the provisions that are being amended by the
State. Therefore, those comments will not be discussed in this notice.
[[Page 38386]]
Public Comments
A public comment period and opportunity to request a public hearing
was announced in the April 23, 1996, Federal Register (61 FR 17859).
The comment period closed on May 23, 1996. No one requested an
opportunity to testify at the scheduled public hearing so no hearing
was held. The West Virginia Mining and Reclamation Association and the
West Virginia Coal Association responded and urged approval of the
amendments. No other public comments were received.
Environmental Protection Agency (EPA)
Under 30 CFR 732.17(h)(11)(ii), the Director is required to obtain
the written concurrence of the Administrator of the EPA with respect to
any provisions of a State program amendment that relate to air or water
quality standards promulgated under the authority of the Clean Water
Act (33 U.S.C. 1251 et seq.) or the Clear Air Act (42 U.S.C. 7401 et
seq.). On May 1, 1996, the Director requested EPA's concurrence and
comments (Administrative Record Numbers WV-1029, 1030).
EPA responded on June 27, 1996 (Administrative Record No. WV-1037)
and commented on two provisions. Concerning CSR 38-2-12.2(e), EPA
conditionally concurred, and stated that the proposed revision for
allowing bond release could result in a situation where less funds
would be available for long term treatment unless three critical areas
are addressed: (1)An accurate determination of the effectiveness,
duration, and long term costs of treatment must be made to avoid
underestimating abatement needs; (2) An assurance that the alternate
financial resources, which are described by the proposed revision, will
be irrevocably committed (such as in a trust fund, dedicated escrow
account, or other similar manner) to assure its availability for
treatment in case of bankruptcy; and (3) Assurance that the bond monies
set aside for long term water treatment are in addition to the bond
monies needed to assure the completion of the reclamation plan (such as
for revegetation).
In response, the Director acknowledges the EPA's concerns, but
believes that these results are not likely to occur. The proposed
language provides that the bond remaining after Phase I release, or the
other financial resources committed to the treatment, must be adequate
to assure long term treatment of the discharge. In addition, the new
language provides that the other financial resources committed to long
term treatment must be irrevocably committed, and the currently
approved bonding requirements continue to apply. Finally, while these
new provisions will provide bond monies for long term treatment, they
in no way eliminate the currently approved provisions that provide for
adequate bond monies to assure completion of the approved reclamation
plan (for example, to assure revegetation). Therefore, the Director is
approving the provisions.
The EPA commented that the revisions at CSR 38-2-14.15(m) could
result in acid seepage unless the approved handling plans include
diversion drains for surface runoff, refuse encapsulation with clay or
other material of low permeability, and rock drains under the backfill
and along the highwall, to intercept and convey groundwater away from
the refuse. As discussed above in Finding 14, the Director agrees and
is requiring that the State further amend the West Virginia program to
clarify that where the coal processing waste proposed to be placed in
the backfill contains acid- or toxic-producing materials, such material
must not be buried or stored in proximity to any drainage course such
as springs and seeps, must be protected from groundwater by the
appropriate use of rock drains under the backfill and along the
highwall, and be protected from water infiltration into the backfill by
the use of appropriate methods such as diversion drains for surface
runoff, encapsulation with clay or other material of low permeability.
That is, such acid- or toxic-producing materials must be hydraulically
separated from any groundwater and from water infiltration into the
backfill.
V. Director's Decision
Based on the findings above, the Director is approving the
amendment submitted by West Virginia on April 2, 1996, except as noted
below.
The Director is requiring that WVDEP further amend the West
Virginia program to be consistent with 30 CFR 701.11(e)(2) by
clarifying that the exemption at CSR 38-2-3.8(c) does not apply to (1)
the requirements for new and existing coal mine waste disposal
facilities; and (2) the requirements to restore the land to approximate
original contour.
The amendments at CSR 38-2-4.4 satisfy the required program
amendment codified at 30 CFR 948.16(rrr), which is hereby removed.
CSR 38-2-4.12 is approved except to the extent that the Director of
the WVDEP is removed from its responsibility (under 30 CFR 774.11(c))
of reviewing permit revisions (such as reviewing as-built plans
changes). In addition, the Director is requiring that the State further
amend CSR 38-2-4.12 to reinstate the following deleted language: ``and
submitted for approval to the Director as a permit revision.''
CSR 38-2-5.4(c) is approved except to the extent that the provision
does not apply to slurry impoundments. In addition, the Director is
requiring that the State further amend the West Virginia program by
clarifying that the requirements at CSR 38-2-5.4(c) also apply to
slurry impoundments.
CSR 38-2-12.2(e) is approved to the extent that passive treatment,
where it is implemented to achieve compliance with effluent limitations
or water quality standards is chemical treatment under the West
Virginia program definition of chemical treatment at CFR 38-2-2.20.
Sec. 38-2-14.3(c) Topsoil substitutes. The Director is deferring
action on this proposed amendment because it was inadvertently omitted
from the proposed rule notice published on April 23, 1996 (61 FR 17859)
that announced the changes submitted by the State.
CSR 38-2-14.14(e)(4) which would allow drainage to be diverted onto
valley fills is not approved and its implementation is to be delayed
pending the submission and approval of scientific evidence showing that
the proposed construction of diversions on valley fills will not
adversely affect their long-term stability.
CSR 38-2-14.15(m) is approved only to the extent that, with the
disposal of coal processing waste in the backfill, the backfill will
not exceed the approximate original contour (AOC). If AOC is exceeded,
then the disposal of coal processing waste in the backfill must comply
with the West Virginia program counterparts to 30 CFR 816.83 concerning
coal processing waste--refuse piles. In addition, the Director is
requiring that the State further amend the West Virginia program to
require compliance with the State counterparts to 30 CFR 816/817.81
(b), (d) and (e) regarding disposal, foundation investigations and
emergency procedures and to clarify that where the coal processing
waste proposed to be placed in the backfill contains acid-or toxic-
producing materials, such material must not be buried or stored in
proximity to any drainage course such as springs and seeps, must be
protected from groundwater by the appropriate use of rock drains under
the backfill and along the highwall, and be protected from water
infiltration into the backfill by the use of appropriate methods such
as diversion drains for surface runoff or encapsulation with clay or
other
[[Page 38387]]
material of low permeability. That is, such acid- or toxic-producing
materials must be hydraulically separated from any groundwater and from
water infiltration into the backfill.
The Federal regulations at 30 CFR Part 948 codifying decisions
concerning the West Virginia program are being amended to implement
this decision. This final rule is being made effective immediately to
expedite the State program amendment process and to encourage States to
bring their programs into conformity with the Federal standards without
undue delay. Consistency of State and Federal standards is required by
SMCRA.
Effect of Director's Decision
Section 503 of SMCRA provides that a State may not exercise
jurisdiction under SMCRA unless the State program is approved by the
Secretary. Similarly, 30 CFR 732.17(a) requires that any alteration of
an approved State program be submitted to OSM for review as a program
amendment. Thus, any changes to the State program are not enforceable
until approved by OSM. The Federal regulations at 30 CFR 732.17(g)
prohibit any unilateral changes to approved State programs. In his
oversight of the West Virginia program, the Director will recognize
only the statutes, regulations and other materials approved by him,
together with any consistent implementing policies, directives and
other materials, and will require the enforcement by West Virginia of
only such provisions.
VI. Procedural Determinations
Executive Order 12866
This rule is exempted from review by the Office of Management and
Budget (OMB) under Executive Order 12866 (Regulatory Planning and
Review).
Executive Order 12988
The Department of the Interior has conducted the reviews required
by section 3 of Executive Order 12988 (Civil Justice Reform) and has
determined that, to the extent allowed by law, this rule meets the
applicable standards of subsections (a) and (b) of that section.
However, these standards are not applicable to the actual language of
State regulatory programs and program amendments since each such
program is drafted and promulgated by a specific State, not by OSM.
Under sections 503 and 505 of SMCRA (30 U.S.C. 1253 and 1255) and 30
CFR 730.11, 732.15 and 732.17(h)(10), decisions on proposed State
regulatory programs and program amendments submitted by the States must
be based solely on a determination of whether the submittal is
consistent with SMCRA and its implementing Federal regulations and
whether the other requirements of 30 CFR Parts 730, 731, and 732 have
been met.
National Environmental Policy Act
No environmental impact statement is required for this rule section
702(d) of SMCRA [30 U.S.C. 1292(d)] provides that agency decisions on
proposed State regulatory program provisions do not constitute major
Federal actions within the meaning of section 102(2)(C) of the National
Environmental Policy Act (42 U.S.C. 4332(2)(C)).
Paperwork Reduction Act
This rule does not contain information collection requirements that
require approval by OMB under the Paperwork Reduction Act (44 U.S.C.
3507 et seq.).
Regulatory Flexibility Act
The Department of the Interior has determined that this rule will
not have a significant economic impact on a substantial number of small
entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.).
The State submittal which is the subject of this rule is based upon
counterpart Federal regulations for which an economic analysis was
prepared and certification made that such regulations would not have a
significant economic effect upon a substantial number of small
entities. Accordingly, this rule will ensure that existing requirements
previously promulgated by OSM will be implemented by the State. In
making the determination as to whether this rule would have a
significant economic impact, the Department relied upon the data and
assumptions for the counterpart Federal regulations.
Unfunded Mandates
This rule will not impose a cost of $100 million or more in any
given year on any governmental entity or the private sector.
List of Subjects in 30 CFR Part 948
Intergovernmental relations, Surface mining, Underground mining.
Dated: July 10, 1996.
Tim L. Dieringer,
Acting Regional Director, Appalachian Regional Coordinating Center.
For the reasons set out in the preamble, Title 30, Chapter VII,
Subchapter T of the Code of Federal Regulations is amended as set forth
below:
PART 948--WEST VIRGINIA
1. The authority citation for Part 948 continues to read as
follows:
Authority: 30 U.S.C. 1201 et seq.
2. In Section 948.15, paragraph (q) is added to read as follows:
Sec. 948.15 Approval of regulatory program amendments.
* * * * *
(q) The amendment to the West Virginia program concerning changes
to the West Virginia regulations as submitted to OSM on April 2, 1996,
is approved effective July 24, 1996 except as noted below:
CSR 38-2-4.12 is approved except to the extent that the Director
of the WVDEP is removed from the responsibility (as is required by
30 CFR 774.11(c)) of reviewing permit revisions (such as reviewing
as-built plans changes).
CSR 38-2-5.4(c) is approved except to the extent that the
provision does not apply to slurry impoundments.
CSR 38-2-12.2(e) is approved to the extent that passive
treatment, where it is implemented to achieve compliance with
effluent limitations or water quality standards is chemical
treatment under the West Virginia program definition of chemical
treatment at CFR 38-2-2.20.
Sec. 38-2-14.3(c) Topsoil substitutes. The Director is deferring
action on this proposed amendment because it was inadvertently
omitted from the proposed rule notice published on April 23, 1996
(61 FR 17859) that announced the changes submitted by the State.
CSR 38-2-14.14(e)(4) which would allow drainage to be diverted
onto valley fills is not approved.
CSR 38-2-14.15(m) is approved to the extent that, with the
disposal of coal processing waste in the backfill, the backfill will
not exceed the approximate original contour (AOC). If AOC is
exceeded, then the disposal of coal processing waste--refuse piles.
3. Section 948.16 is amended by removing and reserving paragraph
(rrr), and adding paragraph (vvv) to read as follows:
Sec. 948.16 Required regulatory program amendments.
* * * * *
(vvv) By January 15, 1997, West Virginia must submit either a
proposed amendment or a description of an amendment to be proposed,
together with a timetable for adoption, to revise the West Virginia
program as follows:
(1) Amend the West Virginia program to be consistent with 30 CFR
701.11(e)(2) by clarifying that the exemption at CSR 38-2-3.8(c) does
not apply to (1) the requirements for new and existing coal mine waste
disposal facilities; and (2) the requirements to
[[Page 38388]]
restore the land to approximate original contour.
(2) Amend CSR 38-2-4.12 to reinstate the following deleted
language: ``and submitted for approval to the Director as a permit
revision.''
(3) Amend the West Virginia program by clarifying that the
requirements at CSR 38-2-5.4(c) also apply to slurry impoundments.
(4) Amend CSR 38-2-14.15(m), or otherwise amend the West Virginia
program to require compliance with 30 CFR 816/817.81 (b), (d), and (e)
regarding coal refuse disposal, foundation investigations and emergency
procedures and to clarify that where the coal processing waste proposed
to be placed in the backfill contains acid- or toxic-producing
materials, such material must not be buried or stored in proximity to
any drainage course such as springs and seeps, must be protected from
groundwater by the appropriate use of rock drains under the backfill
and along the highwall, and be protected from water infiltration into
the backfill by the use of appropriate methods such as diversion drains
for surface runoff or encapsulation with clay or other material of low
permeability.
[FR Doc. 96-18610 Filed 7-23-96; 8:45 am]
BILLING CODE 4310-05-M
Complete official Federal Register PDF
FR Doc. 96-18603 Interconnection and Resale Obligations
[Federal Register Volume 61, Number 143 (Wednesday, July 24, 1996)]
[Rules and Regulations]
[Pages 38399-38403]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-18603]
=======================================================================
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FEDERAL COMMUNICATIONS COMMISSION
47 CFR Parts 20 and 22
[CC Docket No. 94-54; FCC 96-263]
Interconnection and Resale Obligations
AGENCY: Federal Communications Commission.
ACTION: Final rule.
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SUMMARY: The Commission, on an interim basis, extends to cellular,
broadband personal communications services (PCS) and certain
specialized mobile radio (SMR) providers its rule under which cellular
licensees are currently prohibited from restricting resale of their
service. The Commission also eliminates an exception to the current
rule under which cellular licensees are permitted to restrict resale by
competing fully operational cellular licensees in the same geographic
market. The action is needed to promote the development of competition
in these services.
[[Page 38400]]
EFFECTIVE DATE: September 23, 1996.
FOR FURTHER INFORMATION CONTACT: Jeffrey Steinberg, 202-418-1310.
SUPPLEMENTARY INFORMATION: This is a synopsis of the First Report and
Order in CC Docket No. 94-54, FCC 96-263, adopted June 12, 1996, and
released July 12, 1996. The complete text of this First Report and
Order is available for inspection and copying during normal business
hours in the FCC Reference Center (Room 239), 1919 M Street, N.W.,
Washington, D.C., and also may be purchased from the Commission's copy
contractor, International Transcription Service, at (202) 857-3800,
2100 M Street, N.W., Suite 140, Washington, D.C. 20037.
Synopsis of the First Report and Order
The Commission adopts a transitional rule concerning the
obligations of certain commercial mobile radio services (CMRS)
providers to permit the unrestricted resale of their services. The
Commission initiated this proceeding in a Notice of Proposed Rulemaking
and Notice of Inquiry (59 FR 35664, July 13, 1994) that addressed a
broad array of CMRS regulatory issues, including resale. The Commission
refined its proposal concerning resale in a Second Notice of Proposed
Rulemaking in this proceeding (60 FR 20949, April 28, 1995).
2. Based on the record established in this proceeding, the
Commission first concludes that, under current market conditions,
restrictions on resale by cellular, broadband PCS, and certain
specialized mobile radio (covered SMR) providers will inhibit the
development of competition in these services. Covered SMR providers are
800 MHz and 900 MHz SMR licensees that either hold geographic area
licenses or have obtained extended implementation authorizations, and
that offer real-time, two-way switched voice service that is
interconnected with the public switched network. Thus, the Commission
prohibits such providers from forbidding or unreasonably restricting
the resale of their services during a transitional period. The
Commission is not persuaded, however, that the resale rule should be
extended to include CMRS carriers other than cellular, broadband PCS
and covered SMR providers, although the Commission will consider on a
case-by-case basis complaints alleging that other CMRS carriers'
practices concerning interstate resale are unreasonable.
3. Furthermore, the Commission concludes that once broadband PCS
licensees have built out their networks and are competing with cellular
carriers, market forces will eliminate the need for explicit resale
regulation. Therefore, the Commission will sunset the resale rule
adopted in this decision, effective five years after the last group of
initial licenses for currently allotted broadband PCS spectrum is
awarded.
4. The Commission also eliminates an exception to its existing rule
that permits a cellular licensee to restrict resale by the other
cellular licensee in the same geographic area after expiration of the
other licensee's five year build-out period. The Commission concludes
that this exception is unnecessary to encourage build-out because most
cellular build-out periods ended several years ago, and that its
elimination will further promote the procompetitive goals of the First
Report and Order.
Procedural Matters; Ordering Clauses
Final Regulatory Flexibility Analysis
As required by Section 603 of the Regulatory Flexibility Act, 5
U.S.C. Sec. 603 (RFA), an Initial Regulatory Flexibility Analysis
(IRFA) was incorporated in the Second Notice of Proposed Rulemaking in
this proceeding (Second NPRM). The Commission sought written public
comments on the proposals in the Second NPRM, including on the IRFA.
The Commission's Final Regulatory Flexibility Analysis (FRFA) in this
Report and Order conforms to the RFA, as amended by the Contract With
America Advancement Act of 1996, Public Law No. 104-21, 110 Stat. 847
(1996).
I. Need for and Purpose of this Action
In this decision, the Commission, on an interim basis, extends its
rule under which cellular licensees are currently prohibited from
restricting resale of their service to broadband personal
communications services (PCS) and certain geographic area specialized
mobile radio (SMR) providers. The Commission also eliminates an
exception to the current rule under which cellular licensees are
permitted to restrict resale by competing fully operational cellular
licensees in the same geographic market. The purposes of this action
are to help bring the benefits of competition to the market for these
services while the market is in transition to a fully competitive
state, as well as to help jump start competition by allowing new
entrants to enter the marketplace quickly by reselling their
competitors' services while they build out their facilities.
II. Summary of Issues Raised by the Public Comments in Response to the
Initial Regulatory Flexibility Analysis
No comments were filed in direct response to the IRFA. In general
comments on the Second NPRM, however, some commenters raised issues
that might affect small entities. In particular, some commenters argued
that the obligation to permit unrestricted resale would make it
difficult for some providers, especially paging, narrowband PCS, public
coast service, and other small providers, to manage their capacity and
to earn a reasonable return on their investment. The Commission
determined that these objections were not well founded because the
resale rule does not prevent carriers from pricing their services so as
to earn a return on their investment or from including provisions in
their contracts to protect themselves against stranded capacity.
III. Changes Made to the Proposed Rules
In the Second NPRM, the Commission proposed to extend the resale
rule to all commercial mobile radio services (CMRS) providers. However,
the Commission here determines instead to apply the rule only to
cellular, broadband PCS and certain SMR providers because it has
concluded that application of the resale rule to other CMRS providers
will not promote the public interest at this time. The Commission also
determines to sunset application of the resale rule to affected
cellular, broadband PCS and SMR providers in approximately five years
because by that time the development of competition is expected to
render the rule unnecessary. In light of this sunset decision, the
Commission does not adopt its proposal to allow providers subject to
the rule to restrict resale by their fully operational facilities-based
competitors, and it further eliminates the existing exception between
competing cellular licensees in order to maintain regulatory parity and
because it has determined that the exception no longer serves a useful
purpose.
IV. Description and Estimate of the Small Entities Subject to the Rules
The rule adopted in this Report and Order will apply to providers
of cellular, broadband PCS, and geographic area 800 MHz and 900 MHz
specialized mobile radio services, including licensees who have
obtained extended implementation authorizations in the 800 MHz or 900
MHz SMR services, either by waiver or under Section 90.629 of the
Commission's Rules. However, the rule will apply to SMR
[[Page 38401]]
licensees only if they offer real-time, two-way voice service that is
interconnected with the public switched network.
A. Estimates for Cellular Licensees
The Commission has not developed a definition of small entities
applicable to cellular licensees. Therefore, the applicable definition
of small entity is the definition under the Small Business
Administration (SBA) rules applicable to radiotelephone companies. This
definition provides that a small entity is a radiotelephone company
employing fewer than 1,500 persons.\1\ Since the Regulatory Flexibility
Act amendments were not in effect until the record in this proceeding
was closed, the Commission was unable to request information regarding
the number of small cellular businesses and is unable at this time to
determine the precise number of cellular firms which are small
businesses.
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\1\ 13 CFR Sec. 121.201, Standard Industrial Classification
(SIC) Code 4812.
---------------------------------------------------------------------------
The size data provided by the SBA does not enable us to make a
meaningful esimate of the number of cellular providers which are small
entities because it combines all radiotelephone companies with 500 or
more employees.\2\ We therefore used the 1992 Census of Transportation,
Communications, and Utilities, conducted by the Bureau of the Census,
which is the most recent information available. This document shows
that only 12 radiotelephone firms out of a total of 1,178 such firms
which operated during 1992 had 1,000 or more employees.\3\ Therefore,
even if all 12 of these firms were cellular telephone companies, nearly
all cellular carriers were small businesses under the SBA's definition.
We assume, for purposes of our evaluations and conclusions in this
FRFA, that all of the current cellular licensees are small entities, as
that term is defined by the SBA. Although there are 1,758 cellular
licenses, we do not know the number of cellular licensees, since a
cellular licensee may own several licenses.
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\2\ U.S. Small Business Administration 1992 Economic Census
Employment Report, Bureau of the Census, U.S. Department of
Commerce, SIC Code 4812 (radiotelephone communications industry data
adopted by the SBA Office of Advocacy).
\3\ U.S. Bureau of the Census, U.S. Department of Commerce, 1992
Census of Transportation, Communications, and Utilities, UC92-S-1,
Subject Series, Establishment and Firm Size, Table 5, Employment
Size of Firms: 1992, SIC Code 4812 (issued May 1995).
---------------------------------------------------------------------------
B. Estimates for Broadband PCS Licensees
The broadband PCS spectrum is divided into six frequency blocks
designated A through F. Pursuant to 47 CFR 24.720(b), the Commission
has defined ``small entity'' in the auctions for Blocks C and F as a
firm that had average gross revenues of less than $40 million in the
three previous calendar years. This regulation defining ``small
entity'' in the context of broadband PCS auctions has been approved by
the SBA.4
---------------------------------------------------------------------------
\4\ See Implementation of Section 309(j) of the Communications
Act--Competitive Bidding, PP Docket No. 93-253, Fifth Report and
Order, 9 FCC Rcd 5532, 5581-84 (1994).
---------------------------------------------------------------------------
The Commission has auctioned broadband PCS licenses in Blocks A, B,
and C. We do not have sufficient data to determine how many small
businesses bid successfully for licenses in Blocks A and B. There were
89 winning bidders that qualified as small entities in the Block C
auction. Based on this information, we conclude that the number of
broadband PCS licensees affected by the rule adopted in this Report and
Order includes the 89 winning bidders that qualified as small entities
in the Block C broadband PCS auction.
At present, no licenses have been awarded for Blocks D, E, and F of
broadband PCS spectrum. Therefore, there are no small businesses
currently providing these services. However, a total of 1,479 licenses
will be awarded in the D, E, and F Block broadband PCS auctions, which
are scheduled to begin on August 26, 1996. Eligibility for the 493 F
Block licenses is limited to entrepreneurs with average gross revenues
of less than $125 million. However, we cannot estimate how many of
these licenses will be won by small entities, nor how many small
entities will win D or E Block licenses. Given the facts that nearly
all radiotelephone companies have fewer than 1,000 employees and that
no reliable estimate of the number of prospective D, E, and F Block
licensees can be made, we assume, for purposes of our evaluations and
conclusions in this FRFA, that all of the licenses will be awarded to
small entities, as that term is defined by the SBA.
C. Estimates for SMR Licensees
Pursuant to 47 CFR 90.814(b)(1), the Commission has defined ``small
entity'' in auctions for geographic area 800 MHz and 900 MHz SMR
licenses as a firm that had average gross revenues of less than $15
million in the three previous calendar years. This regulation defining
``small entity'' in the context of 800 MHz and 900 MHz SMR has been
approved by the SBA.5
---------------------------------------------------------------------------
\5\ See Amendment of Parts 2 and 90 of the Commission's Rules to
Provide for the Use of 200 Channels Outside the Designated Filing
Areas in the 896-901 MHz and the 935-940 MHz Bands Allotted to the
Specialized Mobile Radio Pool, PR Docket No. 89-583, Second Order on
Reconsideration and Seventh Report and Order, 11 FCC Rcd 2639, 2693-
702 (1995); Amendment of Part 90 of the Commission's Rules to
Facilitate Future Development of SMR Systems in the 800 MHz
Frequency Band, PR Docket No. 93-144, First Report and Order, Eighth
Report and Order, and Second Further Notice of Proposed Rulemaking,
11 FCC Rcd 1463 (1995).
---------------------------------------------------------------------------
The rule adopted in this Report and Order applies to SMR providers
in the 800 MHz and 900 MHz bands that either hold geographic area
licenses or have obtained extended implementation authorizations. We do
not know how many firms provide 800 MHz or 900 MHz geographic area SMR
service pursuant to extended implementation authorizations, nor how
many of these providers have annual revenues of less than $15 million.
Since the Regulatory Flexibility Act amendments were not in effect
until the record in this proceeding was closed, the Commission was
unable to request information regarding the number of small businesses
in this category. We do know that one of these firms has over $15
million in revenues. We assume, for purposes of our evaluations and
conclusions in this FRFA, that all of the remaining existing extended
implementation authorizations are held by small entities, as that term
is defined by the SBA.
The Commission recently held auctions for geographic area licenses
in the 900 MHz SMR band. There were 60 winning bidders who qualified as
small entities in the 900 MHz auction. Based on this information, we
conclude that the number of geographic area SMR licensees affected by
the rule adopted in this Report and Order includes these 60 small
entities.
No auctions have been held for 800 MHz geographic area SMR
licenses. Therefore, no small entities currently hold these licenses. A
total of 525 licenses will be awarded for the upper 200 channels in the
800 MHz geographic area SMR auction. However, the Commission has not
yet determined how many licenses will be awarded for the lower 230
channels in the 800 MHz geographic area SMR auction. There is no basis
to estimate, moreover, how many small entities within the SBA's
definition will win these licenses. Given the facts that nearly all
radiotelephone companies have fewer than 1,000 employees and that no
reliable estimate
[[Page 38402]]
of the number of prospective 800 MHz licensees can be made, we assume,
for purposes of our evaluations and conclusions in this FRFA, that all
of the licenses will be awarded to small entities, as that term is
defined by the SBA.
D. Estimates for Resellers
We were unable to obtain reliable data regarding the number of
entities that resell services covered by the rule adopted in this
Report and Order, or how many of these are small entities. Since the
Regulatory Flexibility Act amendments were not in effect until the
record in this proceeding was closed, the Commission was unable to
request information regarding the number of small businesses in this
category. We note, however, that resellers are included among the 1,178
radiotelephone firms described in the 1992 Census data discussed above,
12 of which had 1,000 or more employees. Given the facts that nearly
all radiotelephone companies have fewer than 1,000 employees and that
no reliable estimate of the number of resellers can be made, we assume,
for purposes of our evaluations and conclusions in this FRFA, that all
resellers are small entities, as that term is defined by the SBA.
V. Summary of Projected Reporting, Recordkeeping and Other Compliance
Requirements
The rule adopted in this Report and Order imposes no reporting or
recordkeeping requirements. The rule also requires no affirmative
compliance action by any entity to which it applies. Rather, the rule
operates as a negative prohibition forbidding restrictions on the
resale of service. Therefore, the only compliance costs likely to be
incurred are administrative costs to ensure that an entity's practices
are in compliance with the rule.
VI. Steps Taken to Minimize the Economic Impact on Small Entities
The Commission determines not to apply its resale rule to CMRS
providers other than those classified as cellular, broadband PCS and
certain SMR. Many of the providers that are thereby excluded from the
rule are small entities, including paging, narrowband PCS, air-ground,
public coast service, and non-covered SMR providers. In addition, the
Commission's decision to sunset the resale rule five years after it
awards the last group of initial licenses for currently allotted
broadband PCS spectrum will reduce the impact of the rule on small
entities by limiting the period of time for which such entities are
subject to that rule. By prohibiting restrictions on resale during a
transitional period, the Commission's decision benefits small entities
that are resellers or that will use resale while they are building out
their facilities.
VII. Significant Alternatives Considered and Rejected
The Commission considered and rejected several significant
alternatives. The Commission rejected the alternative of extending the
resale rule to all CMRS providers because it determined that such a
rule is unnecessary at this time to promote competition or the
availability of socially useful offerings in services other than
cellular, broadband PCS, and geographic area SMR. At the same time, the
Commission rejected the alternative of extending an interim resale rule
to a universe less than all cellular, broadband PCS, and covered SMR
providers because it concluded that a more limited rule would not
adequately promote its competitive and social ends and would be
inconsistent with the principle of regulatory parity. The Commission
rejected the alternative of continuing the resale rule indefinitely
because it determined that the rule would be unnecessary once broadband
PCS licensees are fully operational as facilities-based competitors to
cellular providers. Finally, the Commission rejected the alternative of
allowing providers to restrict resale by their facilities-based
competitors because in the short term such an exception would defeat
the purpose of allowing new entrants to use resale to help them enter
the market more quickly, and in the long term the sunset of the resale
rule as a whole would render the exception irrelevant.
VIII. Report to Congress
The Commission shall send a copy of this Final Regulatory
Flexibility Analysis, along with this Report and Order, in a report to
Congress pursuant to the Small Business Regulatory Enforcement Fairness
Act of 1996, 5 U.S.C. 801(a)(1)(A).
List of Subjects
47 CFR Part 20
Communications common carriers, Federal Communications Commission.
47 CFR Part 22
Communications common carriers, Federal Communications Commission.
Federal Communications Commission.
William F. Caton,
Acting Secretary.
Rule Changes
Parts 20 and 22 of Chapter I of Title 47 of the Code of Federal
Regulations are amended as follows:
PART 20--COMMERCIAL MOBILE RADIO SERVICES
1. The authority citation for Part 20 continues to read as follows:
Authority: Sections 4, 303 and 332, 48 Stat. 1066, 1092, as
amended; 47 USC 154, 303, and 332, unless otherwise noted.
2. Section 20.3 is amended by adding the following definition in
alphabetical order to read as follows:
Sec. 20.3 Definitions.
* * * * *
Incumbent Wide Area SMR Licensees. Licensees who have obtained
extended implementation authorizations in the 800 MHz or 900 MHz
service, either by waiver or under Section 90.629 of these rules, and
who offer real-time, two-way voice service that is interconnected with
the public switched network.
* * * * *
3. New Sec. 20.12 is added to read as follows:
Sec. 20.12 Resale.
(a) Scope of section. This section is applicable only to providers
of Broadband Personal Communications Services (Part 24, Subpart E of
this chapter), providers of Cellular Radio Telephone Service (Part 22,
Subpart H of this chapter), providers of Specialized Mobile Radio
Services in the 800 MHz and 900 MHz bands that hold geographic area
licenses (included in Part 90, Subpart S of this chapter) and offer
real-time, two-way voice service that is interconnected with the public
switched network, and Incumbent Wide Area SMR Licensees.
(b) Resale. Each carrier subject to this section must permit
unrestricted resale of its service. This paragraph shall cease to be
effective five years after the last group of initial licenses for
broadband PCS spectrum in the 1850-1910 and 1930-1990 MHz bands is
awarded.
PART 22--PUBLIC MOBILE SERVICES
1. The authority citation for Part 22 continues to read as follows:
Authority: Sections 4, 303, and 332, 48 Stat. 1066, 1082, as
amended; 47 USC 154, 303, and 332, unless otherwise noted.
[[Page 38403]]
Sec. 22.901 [Amended]
2. Section 22.901 is amended by removing paragraph (e).
[FR Doc. 96-18603 Filed 7-23-96; 8:45 am]
BILLING CODE 6712-01-P
Complete official Federal Register PDF
FR Doc. 96-18588 Student Support Services Program
[Federal Register Volume 61, Number 143 (Wednesday, July 24, 1996)]
[Rules and Regulations]
[Pages 38534-38541]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-18588]
[[Page 38533]]
_______________________________________________________________________
Part V
Department of Education
_______________________________________________________________________
34 CFR Part 646
Student Support Services Program; Final Rule
Federal Register / Vol. 61, No. 143 / Wednesday, July 24, 1996 /
Rules and Regulations
[[Page 38534]]
DEPARTMENT OF EDUCATION
34 CFR Part 646
RIN 1840-AC24
Student Support Services Program
AGENCY: Department of Education.
ACTION: Final regulations.
-----------------------------------------------------------------------
SUMMARY: The Secretary amends the regulations governing the Student
Support Services Program in order to further implement statutory
changes made to the Student Support Services Programs authorizing
statutes, Sections 402A and 402D of the Higher Education Act of 1965,
as amended (HEA), by the Higher Education Amendments of 1992, and to
clarify and simplify certain requirements governing the program. In
general, the selection criteria, prior experience criteria, and grantee
accountability provisions are affected by these changes.
EFFECTIVE DATE: These regulations take effect August 23, 1996.
FOR FURTHER INFORMATION CONTACT: Virginia A. Mason, Division of Student
Services, U.S. Department of Education, 600 Independence Avenue, S.W.,
The Portals Building, Suite 600D, Washington, D.C. 20202-5249.
Telephone: (202) 708-4804 or by Internet to [email protected]. Individuals
who use a telecommunications device for the deaf (TDD) may call the
Federal Information Relay Service (FIRS) at 1-800-877-8339 between 8
a.m. and 8 p.m., Eastern time, Monday through Friday.
SUPPLEMENTARY INFORMATION: The Student Support Services Program
provides grants to institutions of higher education for projects
offering support services to low-income, first generation, or disabled
college students. These support services should increase their
retention and graduation rates, facilitate their transfer from two-year
to four-year colleges, and foster an institutional climate supportive
of the success of low-income and first generation college students and
students with disabilities. On December 13, 1995, the Secretary
published a notice of proposed rulemaking (NPRM) for the Student
Support Services Program in the Federal Register (60 FR 64108-113).
Analysis of Comments and Changes
In response to the Secretary's invitation in the NPRM, 107 persons
submitted comments on the proposed regulations. The following is an
analysis of the comments and the changes in the regulations since
publication of the NPRM. Substantive issues are discussed under the
section of the regulations to which they pertain. Technical and other
minor changes made to the language of the regulations and suggested
changes the Secretary is not legally authorized to make generally are
not addressed.
What is the Student Support Services Program? (Sec. 646.1)
Comments: Many commenters objected to the stated purpose in
Sec. 646.1(a) of the proposed regulations because of the phrase
``facilitate their entrance into graduate and professional programs.''
Some commenters suggested that the phrase exceeds the scope of the
authorizing legislation. Other commenters stated that the language
would put the program at cross purposes with the Ronald E. McNair
Postbaccalaureate Achievement Program and create an overwhelming burden
on grantees to track students through graduate study. Several
commenters recommended deleting ``graduate and professional'' and
stating only the language from the statute.
Discussion: The Secretary has reviewed section 402D of the HEA,
which authorizes the Student Support Services Program, and agrees with
the commenters' suggestion that the section restate the statutory
purpose of the program.
Change: This section of the regulations has been revised to mirror
the statutory purpose of the program, namely to increase retention and
graduation rates, and as appropriate, increase the transfer rates of
eligible students from two-year to four-year institutions.
What Activities and Services May a Project Provide? (Sec. 646.4)
Comment: One commenter stated that the Secretary omitted test
administration, in particular as it relates to students with
disabilities, from the list of allowable activities and services.
Discussion: The only change made in the list of activities in the
current version of this provision, Sec. 646.10, is the inclusion of the
mentoring programs as contained in Sec. 402D of the HEA.
Change: None.
Comment: Several commenters suggested that Sec. 646.4(i) be amended
to permit the involvement of individuals other than faculty members and
upper class students in mentoring programs. Commenters suggested that
these other individuals include institutional and TRIO alumni,
institutional administrators, graduate students and undergraduate
upper-class students, individuals from the community, business and
industry, and other persons as appropriate.
Discussion: Sec. 646.4(i) reflects the statutory requirements
concerning individuals involved in mentoring programs. The Secretary
believes that neither the statute nor the regulations exclude other
qualified and appropriate individuals from serving as mentors in
Student Support Services projects. Furthermore, Sec. 646.4(k) allows
any other activity designed to meet the purposes of the Student Support
Services program.
Change: None.
How Long is a Project Period? (Sec. 646.5)
Comment: Several commenters requested clarification of the five-
year project period and the Department's administration of five-year
grant cycles.
Discussion: This provision reflects the statutory requirements
concerning the length of project periods. The Secretary believes that
it is inappropriate to discuss subsequent funding cycles in the
regulations. Information on how the Department will administer the four
and five-year grants will be provided to successful applicants when
awards are made.
Change: None.
What Definitions Apply? (Sec. 646.7(c))
Comments: Several commenters objected to the definition of cohort
rate, which would require projects to compare the performance of
project participants by cohort groups with other groups of students.
The commenters stated that this evaluation measure is inappropriate
since it would be difficult to find a valid comparison group with
similar academic needs as Student Support Service project participants.
Further, the process of maintaining data and tracking students in the
comparison group would place unwarranted burden on already limited
project resources and reduce resources for direct services to the
eligible population.
Discussion: The term cohort rate was defined in the NPRM to apply
to Sec. 646.21(a)(3) where comparison information was requested on
retention, graduation, grade point averages and transfer rates. The
term was intended to apply to Sec. 646.21(g)(2) and (3) where
evaluation requirements included comparisons with student cohorts not
served by the project. The Secretary believes the use of cohort groups
and the calculation of cohort rates as a means to establish the need
for the project and measure the benefits of the project are appropriate
and valid methods. Thus, tracking and reporting of participants by
cohorts standardizes the procedures for assessing progress across all
projects and lends greater validity to the data obtained.
[[Page 38535]]
Changes: The Secretary concurs that the proposed definition did not
clearly state the intention of introducing a standard approach for
reporting outcome data. In addition, the Secretary has revised the
evaluation criteria in section 646.21(g). Thus, the proposed definition
of cohort rate is no longer applicable to these regulations and thus
has been deleted. Nonetheless, the Secretary maintains that the cohort
methodology is important in order to standardize the reporting of
student performance outcomes. Therefore, the annual performance report
for the program was designed to track students' academic progress by
cohorts. The report will yield data that the Secretary can use, for
example, in conjunction with the baseline data on eligible students as
requested in section 646.21(a)(3). These data can provide comparative
assessments without the additional institutional burden of tracking
non-project participants.
Comment: Several commenters suggested that the definition of the
term participant does not allow grantees to include eligible
individuals who are not served on a continual basis or received
services for less than one grading period. One commenter also noted
that the definition was particularly restrictive for projects in open
enrollment institutions where the student body is very transient, often
seeking services after the beginning of the grading period, stopping
out for one or more grading periods, or transferring to another
institution after one grading period. Commenters believed that
expanding the definition to include all participants served would be
the only means for giving an accurate account of services rendered by
projects. Many commenters suggested the use of the terms active
participant and auxiliary participant to distinguish the level of
participation in the project.
Discussion: The Secretary agrees that the proposed definition of
the term participant may be too restrictive in establishing the minimum
length of participation. However, the Secretary does not agree with the
suggestion that there be two classifications of participants. Although
projects may occasionally serve eligible students on a short term
basis, these students should not be counted as project participants
since the intervention received would not be sufficient to impact the
student's chances for academic success at the grantee institution.
Thus, the Secretary believes it is necessary to establish a definition
for project participant that will support decisions regarding approved
student service levels for funded projects and that will provide
parameters for assessing the impact of the project on the postsecondary
success of its participants.
Change: The Secretary has revised the definition of participant to
allow each grantee to define in the application the extent of services
an individual must receive in order to be counted as a project
participant.
What Selection Criteria Does the Secretary Use to Evaluate an
Application? (Sec. 646.21)
Comment: Several commenters stated that the criterion in
Sec. 646.21(a)(3) inappropriately defines need for the project in terms
of the institution's need and not the need of the students. Further, by
prescribing the comparison group as the total enrollment at the
institution, commenters felt this favored institutions with smaller
percentages of eligible students. Commenters suggested that the
comparison group data used to state the need include national data on
eligible students and/or information on student success at comparable
institutions of higher education as a way to reduce bias for
institutions with smaller percentages of eligible students.
Several commenters also stated that the language on graduate and
professional school enrollment in Sec. 646.21(a)(3)(iii) exceeds the
legislative purpose of the Student Support Services program and
overlaps the purpose of the TRIO McNair program.
Discussion: The Secretary agrees that the criterion in
Sec. 646.21(a)(3) could be interpreted to refer to an institution's
needs and not the needs of the students. Therefore, this criterion has
been restated. While some commenters have suggested using national data
on eligible students and/or information from comparable institutions to
create the cohort-like group for comparative purposes with project
outcome data, the Secretary will not prescribe the type of comparison
data that institutions should use to establish the need for the
program. Instead, the Secretary encourages applicants to use meaningful
comparison data that is related to the purposes of the program and to
the proposed project outcomes. The Secretary further encourages
applicants to define in the application the characteristics of the
comparison group and identify baseline data on eligible students. These
baseline data along with performance measures obtained from the annual
performance report would serve as points of reference from which
institutions could gauge participants' progress.
Change: The language of this section has been revised to expand the
types of comparison data that may be used to establish need for the
project. However, the Secretary has not changed the indicators to be
used for comparisons.
Comment: Several commenters suggested that the term academic need
be deleted from Sec. 646.21(c)(2) because the provision highlights
project participants with academic need and ignores other eligible
project participants, i.e. low-income individuals, first generation
college students, and individuals with disabilities. Some commenters
suggested rewording this provision to correspond with a similar
provision concerning selection of project participants in the Upward
Bound Program regulations. Other commenters suggested that ``retain''
be deleted from Sec. 646.21(c)(2) because retention would be addressed
under Sec. 646.21(c)(4) in the plan to provide services that address
the goals and objectives of a project. One commenter believed that
Sec. 646.21(c)(2) may preclude projects from giving priority for
admission to students whose ethnicity has been historically
underrepresented at the project's host institution.
Discussion: The Secretary disagrees with the commenters because
under Sec. 402D(c)(4) of the HEA all project participants must have
academic need. The Secretary also disagrees that the provision under
Sec. 646.21(c)(2) duplicates the provision of Sec. 646.21(c)(4).
Moreover, the Secretary wishes to emphasize the importance of retention
in an applicant's plan of operation. The Secretary, however, has
deleted the words ``and ensure their participation without regard to
race, color, national origin or gender'' in Sec. 646.21(c)(2) because
grantees are otherwise required to follow these requirements. The
Secretary notes that section 427 of the General Education Provisions
Act (GEPA) requires all applicants in their applications to specify
strategies for overcoming barriers based on gender, race, color,
national origin, disability, and age, in order to ensure the full
participation of eligible individuals in the project.
Change: The words ``and ensure their participation without regard
to race, color, national origin, or gender'' have been deleted from
this criterion.
Comment: Many commenters stated that the language in
Sec. 646.21(d)(3) is biased against public institutions in states that
do not provide sufficient funding for need-based scholarships; thus,
most colleges and universities are packaging loans for students to help
meet need. Others contended that to comply with this criterion an
institution would have to develop special packaging for Student Support
Services
[[Page 38536]]
participants and this would be unfair to other low-income students at
the institution. Additionally, commenters stated that to commit
institutional resources to special groups would be contrary to many
state and federal statutes.
Discussion: The Secretary believes that given the assurance ``to
offer sufficient financial assistance to meet the student's full
financial need,'' all grantee institutions should be committed to
reducing the participants' dependence on loans. The Secretary believes
that this criterion will encourage applicants to develop a plan to
minimize loans to reduce the financial burden of participants after
completion of their postsecondary education. Moreover, the criterion
recognizes the limits on an institution's ability to provide grants to
project participants through the use of the phrase ``to the extent
possible.''
Change: None.
Comment: One commenter stated that to require an applicant to
assure the full cooperation and support of functional components as
stated in Sec. 646.21(d)(4) is unrealistic. The commenter suggested
that to identify ways to develop and maintain the cooperation of these
offices is a more reasonable expectation.
Discussion: The Secretary disagrees with the commenter because to
be a successful project requires the participation of these components
of the institution. Additionally, the Secretary has determined that
this provision should also include the components of the institution
that collect and analyze data.
Change: The language has been revised to include the component of
the institution that collects and analyzes data.
Comment: Many commenters suggested that in Sec. 646.21(g)(3) the
Secretary has underestimated the burden of collecting and maintaining
cohort data on students not participating in the program and has not
adequately considered the use of existing evaluation methods.
Additionally, commenters believed that the resources and time required
to establish a valid cohort group for non-project participants would
place more burden on already limited resources and dilute the quality
of services provided to students. Further, commenters stated that the
complexity and feasibility of collecting data for student cohorts not
served by the project would be difficult and would not necessarily
factor in the academic need and disability criteria for eligible
project participants. Several commenters encouraged the Secretary to
use the baseline data required in the Need section of the application
to determine the overall effectiveness of the Student Support Services
project.
Discussion: The Secretary believes that information on project
outcomes and therefore student performance is critical for indicating
where needs are, whether the project is moving in the right direction,
and what must be accomplished. By knowing how well students who receive
services perform, the Department can gauge the extent to which the
Student Support Services program is both reaching its intended
beneficiaries and having a positive impact. To accomplish this, the
NPRM required both the use of baseline data on each of the programmatic
outcomes and the comparison of subsequent results on student cohorts
not served by the project.
In a departure from the NPRM, the Secretary will not prescribe how
the project will assess the benefits of a Student Support Services
project on the target students and will not require projects to use a
comparison group to assess student outcomes. This, however, does not
preclude a project from proposing a comparison group or from using
baseline data provided in response to the Need criteria
(Sec. 646.21(a)) against which student progress can be assessed.
Projects can also satisfy evaluation requirements by stating how
student progress related to the purposes of the program (Sec. 646.1)
and the prior experience criteria (Sec. 646.22) will be addressed.
Additionally, the Secretary requests that each applicant demonstrate
how the evaluation results will be used to improve program operations
and activities.
Applicants will be awarded points for the proposed evaluation plan
(Sec. 646.21(g)) based on the quality and appropriateness of the plan
presented in the application. The Department of Education will also use
information from the annual performance report in conjunction with the
project objectives and evaluation strategies proposed in the
application to evaluate a grantee's progress and award prior experience
points.
Change: Section 646.21(g) has been revised to require an evaluation
plan that is appropriate to the project, measures project success
against appropriate baseline data, and uses the results to make
programmatic improvements.
How Does the Secretary Evaluate Prior Experience? (Sec. 646.22)
Comment: One commenter stated that the new criteria for prior
experience in Sec. 646.22 should not be used to award prior experience
points for the fiscal year 1997 competition because the current
criteria have been the basis for the project design and implementation.
Many commenters believed that the omission of process objectives
from the prior experience criteria allows grantees to disregard
administrative requirements when reporting on the prior experience
criteria and to focus on successful project results only. This, they
noted would limit the Secretary's control over the quality of services.
Other commenters noted that the part of Sec. 646.22(b)(4), that states,
``enrolled in graduate or professional schools,'' does not give credit
to project participants who successfully pursue careers without benefit
of a postbaccalaureate degree, and gives an unfair advantage to
grantees serving students enrolled in programs that may lead to
entrance into graduate or professional school. Further, some commenters
believed that the Secretary expanded the purpose of the program and is
at cross purposes with the McNair program by giving ``graduate or
professional school enrollment'' weight in the prior experience
criteria.
These commenters suggested that this criterion be deleted. Many
commenters suggested that the Secretary give equal consideration to all
measures of postsecondary achievement.
Discussion: The Secretary will not use the prior experience
criteria in these final regulations to assess grantees for performance
during the 1993-1997 funding cycle. The prior experience assessment for
the upcoming competition will be conducted using the prior experience
criteria listed in Sec. 642.22(c) of the current program regulations.
The Secretary believes that the process objectives and administrative
requirements of a grantee should be evaluated on a yearly basis using
interim reports and on-site monitoring to determine the extent to which
the grantees are making progress toward meeting the goals and
objectives of the program.
The Secretary also agrees that success at the postsecondary level
does not necessarily mean receiving a postbaccalaureate degree, and
thus agrees that graduate and professional school enrollment rates
should not be a criterion under prior experience.
Change: The Secretary has revised Sec. 646.22 to combine criteria
(3) and (4) into a single criterion that addresses the successful
completion of postsecondary education programs that result in
graduation and/or transfer from a two-year to a four-year institution.
Language is added to give prior experience points for meeting the
administrative requirements of the program. The
[[Page 38537]]
criterion that addressed graduate and professional school enrollment
has been deleted.
What are Allowable Costs? (Sec. 646.30)
Comment: One commenter stated that lodging and meals should be
included as an allowable cost when necessary for approved educational
and cultural activities sponsored by the project.
Discussion: The Secretary believes that the approved activities in
Sec. 646.30(d) will allow projects to pay the cost of lodging and meal
when appropriate.
Change: None.
Comment: Several commenters stated that the rate of four percent of
the total project salaries as described in Sec. 646.30(g) for
professional development travel for project staff is discriminatory to
programs located in remote areas. Further, they claimed this rate would
place a hardship on staff from newly awarded projects with minimal
budgets and the highest need for travel funds. A few commenters
suggested an increase to 6.5 percent.
Discussion: The Secretary believes that professional development
travel for staff may be required to properly implement a project. Most
projects in the past have spent less than four percent for travel.
However, the Secretary can permit a project to spend more than the four
percent for travel in unusual circumstances.
Change: None
What Other Requirements Must a Grantee Meet? (Sec. 646.32)
Comment: Several commenters stated that Sec. 646.32(a)(3) will
prohibit participants from legitimately receiving services needed from
more than one TRIO project and hinder the coordination of the programs.
One commenter suggested changing the language to state ``who is
receiving the same services,'' to allow participation when services are
not duplicated.
Discussion: The Secretary agrees with the commenters and accepts
the suggested language.
Change: This section has been revised to include the language of
the commenter which adds the phrase ``the same'' between the words
``receiving'' and ``services''. This revision will prohibit grantees
from providing the same services to participants served by more than
one TRIO project.
Further, the Secretary has decided to revise Sec. 646.32(b)(4) to
insert the words ``by cohort'' between the words ``participant'' and
``for the duration''. The change is needed to reflect the Secretary's
belief that the academic progress of project participants should be
tracked by cohort groups to provide valid measures of project
successes.
Other changes: Although no comments were received on the following,
the Secretary has reviewed the regulations since publication of the
NPRM and has made the following changes:
Changes: The Secretary has assigned weights to subcriteria under
need, objectives, and evaluation plan; revised Sec. 646.21(c)(3) to
include a plan to monitor participant's academic progress; and included
evaluation costs as an allowable cost in Sec. 646.30(h).
Paperwork Reduction Act of 1995
Under the Paperwork Reduction Act of 1995, no persons are required
to respond to a collection of information unless it displays a valid
OMB control number. The valid OMB control number assigned to the
collection of information in these final regulations is displayed at
the end of the affected section of the regulations.
Intergovernmental Review
This program is subject to the requirements of Executive Order
12372 and the regulations in 34 CFR Part 79. The objective of the
Executive order is to foster an intergovernmental partnership and a
strengthened federalism by relying on processes developed by State and
local governments for coordination and review of proposed Federal
financial assistance.
In accordance with the order, this document is intended to provide
early notification of the Department's specific plans and actions for
this program.
Assessment of Educational Impact
In the notice of proposed rulemaking, the Secretary requested
comments on whether the proposed regulations would require transmission
of information that is being gathered by or is available from any other
agency or authority of the United States.
Based on the response to the proposed rules and its own review, the
Department has determined that the regulations in this document do not
require transmission of information that is being gathered by or is
available from any other agency or authority of the United States.
List of Subjects in 34 CFR Part 646
Colleges and universities, Disadvantaged students, Educational
programs, Discretionary grants, Reporting and recordkeeping
requirements.
(Catalog of Federal Domestic Assistance Number 84.042 Student
Support Services Program.)
Dated: June 27, 1996.
David A. Longanecker,
Assistant Secretary for Postsecondary Education.
The Secretary amends chapter VI of title 34 of the Code of Federal
Regulations by revising Part 646 to read as follows:
PART 646--STUDENT SUPPORT SERVICES PROGRAM
Subpart A--General
Sec.
646.1 What is the Student Support Services Program?
646.2 Who is eligible to receive a grant?
646.3 Who is eligible to participate in a Student Support Services
project?
646.4 What activities and services may a project provide?
646.5 How long is a project period?
646.6 What regulations apply?
646.7 What definitions apply?
Subpart B--How Does One Apply for an Award?
646.10 How many applications for a Student Support Services award
may an eligible applicant submit?
646.11 What assurances must an applicant include in an application?
Subpart C--How Does the Secretary Make a Grant?
646.20 How does the Secretary decide which new grants to make?
646.21 What selection criteria does the Secretary use to evaluate
an application?
646.22 How does the Secretary evaluate prior experience?
646.23 How does the Secretary set the amount of a grant?
Subpart D--What Conditions Must Be Met by a Grantee?
646.30 What are allowable costs?
646.31 What are unallowable costs?
646.32 What other requirements must a grantee meet?
Authority: 20 U.S.C. 1070a-11 and 1070a-14, unless otherwise
noted.
Subpart A--General
Sec. 646.1 What is the Student Support Services Program?
The Student Support Services Program provides grants for projects
designed to--
(a) Increase the retention and graduation rates of eligible
students;
(b) Increase the transfer rate of eligible students from two-year
to four-year institutions; and
(c) Foster an institutional climate supportive of the success of
low-income and first generation college students and individuals with
disabilities through services such as those described in Sec. 646.4.
[[Page 38538]]
(Authority: 20 U.S.C. 1070a-11 and 1070a-14)
Sec. 646.2 Who is eligible to receive a grant?
An institution of higher education or a combination of institutions
of higher education is eligible to receive a grant to carry out a
Student Support Services project.
(Authority: 20 U.S.C. 1070a-14)
Sec. 646.3 Who is eligible to participate in a Student Support
Services project?
A student is eligible to participate in a Student Support Services
project if the student meets all of the following requirements:
(a) Is a citizen or national of the United States or meets the
residency requirements for Federal student financial assistance.
(b) Is enrolled at the grantee institution or accepted for
enrollment in the next academic term at that institution.
(c) Has a need for academic support, as determined by the grantee,
in order to pursue successfully a postsecondary educational program.
(d) Is--
(1) A low-income individual;
(2) A first generation college student; or
(3) An individual with disabilities.
(Authority: 20 U.S.C. 1070a-14)
Sec. 646.4 What activities and services may a project provide?
A Student Support Services project may provide services such as:
(a) Instruction in reading, writing, study skills, mathematics, and
other subjects necessary for success beyond secondary school.
(b) Personal counseling.
(c) Academic advice and assistance in course selection.
(d) Tutorial services and counseling and peer counseling.
(e) Exposure to cultural events and academic programs not usually
available to disadvantaged students.
(f) Activities designed to acquaint students participating in the
project with the range of career options available.
(g) Activities designed to secure admission and financial
assistance for enrollment in graduate and professional programs.
(h) Activities designed to assist students currently enrolled in
two-year institutions in securing admission and financial assistance
for enrollment in a four-year program of postsecondary education.
(i) Mentoring programs involving faculty or upper class students,
or any combination of faculty members and upper class students.
(j) Programs and activities as described in paragraphs (a) through
(i) of this section that are specifically designed for students of
limited English proficiency.
(k) Other activities designed to meet the purposes of the Student
Support Services Program stated in Sec. 646.1.
(Authority: 20 U.S.C. 1070a-14)
Sec. 646.5 How long is a project period?
(a) Except as provided in paragraph (b) of this section, a project
period under the Student Support Services Program is four years.
(b) The Secretary approves a project period of five years for
applicants that score in the highest ten percent of all applicants
approved for new grants under the criteria in Sec. 646.21.
(Authority: 20 U.S.C. 1070a-11)
Sec. 646.6 What regulations apply?
The following regulations apply to the Student Support Services
Program:
(a) The Education Department General Administrative Regulations
(EDGAR) in 34 CFR Parts 74, 75, 77, 79, 82, 85 and 86.
(b) The regulations in this part 646.
(Authority: 20 U.S.C. 1070a-11 and 1070a-14)
Sec. 646.7 What definitions apply?
(a) Definitions in the Act. The following terms used in this part
are defined in sections 402(A)(g), 481, or 1201(a) of the Higher
Education Act (HEA) of 1965, as amended:
First generation college student
Institution of higher education
Low-income individual
(b) Definitions in EDGAR. The following terms used in this part are
defined in 34 CFR 77.1:
Applicant
Application
Award
Budget
Budget Period
Department
EDGAR
Equipment
Facilities
Fiscal year
Grant
Grant Period
Grantee
Project
Project period
Public
Secretary
Supplies
(c) Other definitions. The following definitions also apply to this
part:
Academic need with reference to a student means a student whom the
grantee determines needs one or more of the services stated under
Sec. 646.4 to succeed in a postsecondary educational program.
Combination of institutions of higher education means two or more
institutions of higher education that have entered into a cooperative
agreement for the purpose of carrying out a common objective, or an
entity designated or created by a group of institutions of higher
education for the purpose of carrying out a common objective on their
behalf.
Different Campus means an institutional site that is geographically
apart from and independent of the main campus of the institution. The
Secretary considers a location of an institution to be independent of
the main campus if the location--
(1) Is permanent in nature;
(2) Offers courses in educational programs leading to a degree,
certificate, or other recognized educational credential;
(3) Has its own faculty and administrative or supervisory
organization; and
(4) Has its own budgetary and hiring authority.
Different population of participants means a group of--
(1) Low-income, first-generation college students; or
(2) Disabled students.
Individual with disabilities means a person who has a diagnosed
physical or mental impairment that substantially limits that person's
ability to participate in the educational experiences and opportunities
offered by the grantee institution.
Limited English proficiency with reference to an individual, means
a person whose native language is other than English and who has
sufficient difficulty speaking, reading, writing, or understanding the
English language to deny that individual the opportunity to learn
successfully in classrooms in which English is the language of
instruction.
Participant means an individual who--
(1) Is determined to be eligible to participate in the project
under Sec. 646.3; and
(2) Receives project services that the grantee has determined to be
sufficient to increase the individual's chances for success in a
postsecondary educational program.
Sufficient financial assistance means the amount of financial aid
offered a Student Support Services student, inclusive of Federal,
State, local, private, and institutional aid which, together with
parent or student contributions, is equal to the cost of
[[Page 38539]]
attendance as determined by a financial aid officer at the institution.
(Authority: 20 U.S.C. 1070a-11 and 1070a-14)
Subpart B--How Does One Apply for an Award?
Sec. 646.10 How many applications for a Student Support Services
award may an eligible applicant submit?
The Secretary accepts more than one application from an eligible
applicant so long as each additional application describes a project
that serves a different campus, or a different population of
participants who cannot readily be served by a single project.
(Authority: 20 U.S.C. 1070a-11 and 1070a-14)
Sec. 646.11 What assurances must an applicant include in an
application?
An applicant shall assure in its application that--
(a) At least two-thirds of the students it will serve in its
Student Support Services project will be--
(1) Low-income individuals who are first generation college
students; or
(2) Individuals with disabilities;
(b) The remaining students it will serve will be low-income
individuals, first generation college students, or individuals with
disabilities;
(c) Not less than one-third of the individuals with disabilities
will be low-- income individuals; and
(d) Each student participating in the project will be offered
sufficient financial assistance to meet that student's full financial
need.
(Approved by the Office of Management and Budget under control
number 1840-0017)
(Authority: 20 U.S.C. 1070a-14)
Subpart C--How Does the Secretary Make a Grant?
Sec. 646.20 How does the Secretary decide which new grants to make?
(a) The Secretary evaluates an application for a new grant as
follows:
(1)(i) The Secretary evaluates the application on the basis of the
selection criteria in Sec. 646.21.
(ii) The maximum score for all the criteria in Sec. 646.21 is 100
points. The maximum score for each criterion is indicated in
parentheses with the criterion.
(2)(i) If an application for a new grant proposes to continue to
serve substantially the same population or campus that the applicant is
serving under an expiring grant, the Secretary evaluates the
applicant's prior experience in delivering services under the expiring
grant on the basis of the criteria in Sec. 646.22.
(ii) The maximum score for all the criteria in Sec. 646.22 is 15
points. The maximum score for each criterion is indicated in
parentheses with the criterion.
(b) The Secretary makes new grants in rank order on the basis of
the applications' total scores under paragraphs (a)(1) and (a)(2) of
this section.
(c) If the total scores of two or more applications are the same
and there is insufficient money available to fully fund them both after
funding the higher-ranked applications, the Secretary chooses among the
tied applications so as to serve geographic areas that have been
underserved by the Student Support Services Program.
(d) The Secretary does not make grants to applicants that carried
out a Federal TRIO program project that involved the fraudulent use of
funds.
(Authority: 20 U.S.C. 1070a-11 and 1070a-14)
Sec. 646.21 What selection criteria does the Secretary use to
evaluate an application?
The Secretary uses the following criteria to evaluate an
application for a new grant:
(a) Need for the project (24 points). The Secretary evaluates the
need for a Student Support Services project proposed at the applicant
institution on the basis of the extent to which the application
contains clear evidence of--
(1) (8 points) A high number or percentage, or both, of students
enrolled or accepted for enrollment at the applicant institution who
meet the eligibility requirements of Sec. 646.3;
(2) (8 points) The academic and other problems that eligible
students encounter at the applicant institution; and
(3) (8 points) The differences between eligible Student Support
Services students compared to an appropriate group, based on the
following indicators:
(i) Retention and graduation rates.
(ii) Grade point averages.
(iii) Graduate and professional school enrollment rates (four-year
colleges only).
(iv) Transfer rates from two-year to four-year institutions (two-
year colleges only).
(b) Objectives (8 points). The Secretary evaluates the quality of
the applicant's proposed project objectives on the basis of the extent
to which they--
(1) (2 points) Include performance, process and outcome objectives
relating to each of the purposes of the Student Support Services
Program stated in Sec. 646.1;
(2) (2 points) Address the identified needs of the proposed
participants;
(3) (2 points) Are clearly described, specific, and measurable; and
(4) (2 points) Are ambitious but attainable within each budget
period and the project period given the project budget and other
resources.
(c) Plan of operation (30 points). The Secretary evaluates the
quality of the applicant's plan of operation on the basis of the
following:
(1) (3 points) The plan to inform the institutional community
(students, faculty, and staff) of the goals, objectives, and services
of the project and the eligibility requirements for participation in
the project.
(2) (3 points) The plan to identify, select, and retain project
participants with academic need.
(3) (4 points) The plan for assessing each individual participant's
need for specific services and monitoring his or her academic progress
at the institution to ensure satisfactory academic progress.
(4) (10 points) The plan to provide services that address the goals
and objectives of the project.
(5) (10 points) The applicant's plan to ensure proper and efficient
administration of the project, including the organizational placement
of the project; the time commitment of key project staff; the specific
plans for financial management, student records management, and
personnel management; and, where appropriate, its plan for coordination
with other programs for disadvantaged students.
(d) Institutional commitment (16 points). The Secretary evaluates
the institutional commitment to the proposed project on the basis of
the extent to which the applicant has--
(1) (6 points) Committed facilities, equipment, supplies,
personnel, and other resources to supplement the grant and enhance
project services;
(2) (6 points) Established administrative and academic policies
that enhance participants' retention at the institution and improve
their chances of graduating from the institution;
(3) (2 points) Demonstrated a commitment to minimize the dependence
on student loans in developing financial aid packages for project
participants by committing institutional resources to the extent
possible; and
(4) (2 points) Assured the full cooperation and support of the
Admissions, Student Aid, Registrar and data collection and analysis
components of the institution.
[[Page 38540]]
(e) Quality of personnel (9 points). To determine the quality of
personnel the applicant plans to use, the Secretary looks for
information that shows--
(1) (3 points) The qualifications required of the project director,
including formal education and training in fields related to the
objectives of the project, and experience in designing, managing, or
implementing Student Support Services or similar projects;
(2) (3 points) The qualifications required of other personnel to be
used in the project, including formal education, training, and work
experience in fields related to the objectives of the project; and
(3) (3 points) The quality of the applicant's plan for employing
personnel who have succeeded in overcoming barriers similar to those
confronting the project's target population.
(f) Budget (5 points). The Secretary evaluates the extent to which
the project budget is reasonable, cost-effective, and adequate to
support the project.
(g) Evaluation plan (8 points). The Secretary evaluates the quality
of the evaluation plan for the project on the basis of the extent to
which--
(1) The applicant's methods for evaluation--
(i) (2 points) Are appropriate to the project and include both
quantitative and qualitative evaluation measures; and
(ii) (2 points) Examine in specific and measurable ways, using
appropriate baseline data, the success of the project in improving
academic achievement, retention and graduation of project participants;
and
(2) (4 points) The applicant intends to use the results of an
evaluation to make programmatic changes based upon the results of
project evaluation.
(Approved by the Office of Management and Budget under control
number 1840-0017)
(Authority: 20 U.S.C. 1070a-14)
Sec. 646.22 How does the Secretary evaluate prior experience?
(a) In the case of an application described in
Sec. 646.20(a)(2)(i), the Secretary reviews information relating to an
applicant's performance under its expiring Student Support Services
project. This information may come from performance reports, site visit
reports, project evaluation reports, and any other verifiable
information submitted by the applicant.
(b) The Secretary evaluates the applicant's prior experience in
achieving the goals of the Student Support Services Program on the
basis of the following criteria:
(1) (4 points) The extent to which project participants persisted
toward completion of the academic programs in which they were enrolled.
(2) (4 points) The extent to which project participants met
academic performance levels required to stay in good academic standing
at the grantee institution.
(3) (4 points) (i) For four-year institutions, the extent to which
project participants graduated; and
(ii) For two-year institutions, the extent to which project
participants either graduated or transferred to four-year institutions.
(4) (3 points) The extent to which the applicant has met the
administrative requirements--including recordkeeping, reporting, and
financial accountability--under the terms of the previously funded
award.
(Approved by the Office of Management & Budget under control number
1840-0017)
(Authority: 20 U.S.C. 1070a-11 and 1070a-14)
Sec. 646.23 How does the Secretary set the amount of a grant?
(a) The Secretary sets the amount of a grant on the basis of--
(1) 34 CFR 75.232 and 75.233, for new grants; and
(2) 34 CFR 75.253, for the second and subsequent years of a project
period.
(b) If the circumstances described in section 402A(b)(3) of the HEA
exist, the Secretary uses the available funds to set the amount of the
grant at the lesser of--
(1) $170,000; or
(2) The amount requested by the applicant.
(Authority: 20 U.S.C. 1070a-11)
Subpart D-- What Conditions Must Be Met by a Grantee?
Sec. 646.30 What are allowable costs?
The cost principles that apply to the Student Support Services
Program are in 34 CFR part 74, subpart Q. Allowable costs include the
following if they are reasonably related to the objectives of the
project:
(a) Cost of remedial and special classes if--
(1) These classes are not otherwise available at the grantee
institution;
(2) Are limited to eligible project participants; and
(3) Project participants are not charged tuition for classes paid
for by the project.
(b) Courses in English language instruction for students of limited
English proficiency if these classes are limited to eligible project
participants and not otherwise available at the grantee institution.
(c) In-service training of project staff.
(d) Activities of an academic or cultural nature, such as field
trips, special lectures, and symposiums, that have as their purpose the
improvement of the participants' academic progress and personal
development.
(e) Transportation of participants and staff to and from approved
educational and cultural activities sponsored by the project.
(f) Purchase of computer hardware, computer software, or other
equipment to be used for student development, student records and
project administration if the applicant demonstrates to the Secretary's
satisfaction that the equipment is required to meet the objectives of
the project more economically or efficiently.
(g) Professional development travel for staff if directly related
to the project's overall purpose and activities, except that these
costs may not exceed four percent of total project salaries. The
Secretary may adjust this percentage if the applicant demonstrates to
the Secretary's satisfaction that a higher percentage is necessary and
reasonable.
(h) Project evaluation that is directly related to assessing the
project's impact on student achievement and improving the delivery of
services.
(Authority: 20 U.S.C. 1070a-14)
Sec. 646.31 What are unallowable costs?
Costs that may not be charged against a grant under the Student
Support Services Program include, but are not limited to, the
following:
(a) Costs involved in recruiting students for enrollment at the
institution.
(b) Tuition, fees, stipends, and other forms of direct financial
support for staff or participants.
(c) Research not directly related to the evaluation or improvement
of the project.
(d) Construction, renovation, or remodeling of any facilities.
(Authority: 20 U.S.C. 1070a-14)
Sec. 646.32 What other requirements must a grantee meet?
(a) Eligibility of participants. (1) A grantee shall determine the
eligibility of each participant in the project when the individual is
selected to participate. The grantee does not have to revalidate a
participant's eligibility after the participant's initial selection.
(2) A grantee shall determine the low-income status of an
individual on the basis of the documentation described in section
402A(e) of the Higher Education Act.
(3) A grantee may not serve any individual who is receiving the
same
[[Page 38541]]
services from another Federal TRIO program.
(b) Recordkeeping. A grantee shall maintain participant records
that show--
(1) The basis for the grantee's determination that each participant
is eligible to participate in the project under Sec. 646.3;
(2) The grantee's basis for determining the academic need for each
participant;
(3) The services that are provided to each participant; and
(4) The performance and progress of each participant by cohort for
the duration of the participant's attendance at the grantee
institution.
(c) Project director. (1) A grantee shall employ a full-time
project director unless paragraph (c)(3) of this section applies.
(2) The grantee shall give the project director sufficient
authority to administer the project effectively.
(3) The Secretary waives the requirement in paragraph (c)(1) of
this section if the applicant demonstrates that the requirement will
hinder coordination--
(i) Among the Federal TRIO programs; or
(ii) Between the programs funded under sections 404A through 410 of
the Higher Education Act and similar programs funded through other
sources.
(d) Project coordination. (1) The Secretary encourages grantees to
coordinate project services with other programs for disadvantaged
students operated by the grantee institution provided the Student
Support Services grant funds are not used to support activities
reasonably available to the general student population.
(2) To the extent practical, the grantee may share staff with
programs serving similar populations provided the grantee maintains
appropriate records of staff time and effort and does not commingle
grant funds.
(3) Costs for special classes and events that would benefit Student
Support Services students and participants in other programs for
disadvantaged students must be proportionately divided among the
benefiting projects.
(Approved by the Office of Management and Budget under control
number 1840-0017)
(Authority: 20 U.S.C. 1070a-11 and 1070a)
[FR Doc. 96-18588 Filed 7-23-96; 8:45 am]
BILLING CODE 4000-01-P
Complete official Federal Register PDF
FR Doc. 96-18537 Medicaid Program; Medicaid Eligibility Quality Control, Progressive Reductions in Federal Financial Participation for FYs 1982- 1984, Payment for Physician Billing for Clinical Laboratory Services, and Utilization Control of Skilled Nursing Facility Services: Removal of Obsolete Requirements
[Federal Register Volume 61, Number 143 (Wednesday, July 24, 1996)]
[Rules and Regulations]
[Pages 38395-38399]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-18537]
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DEPARTMENT OF HEALTH AND HUMAN SERVICES
42 CFR Parts 431, 433, 440, 441, 447, and 456
[MB-099-F]
RIN 0938-AH31
Medicaid Program; Medicaid Eligibility Quality Control,
Progressive Reductions in Federal Financial Participation for FYs 1982-
1984, Payment for Physician Billing for Clinical Laboratory Services,
and Utilization Control of Skilled Nursing Facility Services: Removal
of Obsolete Requirements
AGENCY: Health Care Financing Administration (HCFA), HHS.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: This final rule removes several obsolete sections of the
Medicaid regulations that specify rules and procedures for disallowing
Federal financial participation for erroneous medical assistance
payments due to eligibility and beneficiary liability errors as
detected through the Medicaid eligibility quality control program for
assessment periods from 1980 through June 1990. The Medicaid
regulations that contain the rules and procedures for the progressive
reductions in Federal financial participation in medical assistance
expenditures made to the States for fiscal years 1982 through 1984 are
removed to reflect the repeal of the statutory bases for the
reductions. The Medicaid regulations that provide for physician billing
for clinical laboratory services that a physician bills or pays for but
did not personally perform or supervise are removed to reflect the
statutory repeal of this provision. In addition, the rule removes
obsolete regulations that prescribe requirements concerning utilization
control of Medicaid services furnished in skilled nursing facilities.
This rule is part of the Department's initiative to reinvent health
care regulations and eliminate obsolete requirements.
EFFECTIVE DATE: These regulations are effective on August 23, 1996.
FOR FURTHER INFORMATION CONTACT:
Mary Linda Morgan (410) 786-2011, Medicaid Eligibility Quality Control
and Reductions in FFP for FYs 1982-1984 Issues
Linda Peltz (410) 786-3399, Utilization Control of Skilled Nursing
Facilities Issues
Robert Weaver (410) 786-5914, Laboratory Services Issues.
SUPPLEMENTARY INFORMATION:
I. Reinventing Regulations Effort
Last year, the Department began an initiative to assist in meeting
the Administration's commitment to reinventing government regulations.
As part of this effort, we began to examine the requirements contained
in regulations issued by HCFA governing the Medicare and Medicaid
programs to determine which requirements could be reduced or eliminated
while assuring that we continually improve the quality of services to
Medicaid and Medicare beneficiaries. This rule is a result of part of
our efforts in this regard to eliminate obsolete and burdensome
requirements.
II. Medicaid Eligibility Quality Control Program
Under the Medicaid program, States are required to operate a
Medicaid eligibility quality control (MEQC) program. The program is
designed to reduce erroneous expenditures in medical assistance
payments by monitoring eligibility determinations. Under the MEQC
program, States are required to select a sample of cases every month
and review them for eligibility errors. HCFA annually calculates each
States' error rate on the basis of State review findings. Federal
financial participation (FFP) in State medical assistance expenditures
is
[[Page 38396]]
disallowed to the extent that a State has a Medicaid eligibility
quality control payment error rate that is above a statutorily
specified target error rate or national standard. HCFA may waive all or
part of the disallowance under specific circumstances.
The current statutory authority for disallowances of payments in
erroneous State medical assistance expenditures and for consideration
of waiver requests is contained in section 1903(u) of the Social
Security Act (the Act). The authority for disallowance determinations
and the specified national target error rate have changed over the
years since the original legislation was enacted in 1978. The HCFA
regulations that contain the conditions under which disallowances are
taken for erroneous State medical assistance expenditures if errors
exceed the national error rate standards are contained in 42 CFR
431.861 through 431.865. Because the legislation governing the national
target error rates and how disallowances are taken has changed
frequently over the years, the existing regulations contain conditions
and requirements for specified periods, that is, the period prior to
September 1980 (Sec. 431.861); interim periods of October 1, 1980
through September 30, 1982 (Sec. 431.862), April 1 through December 31,
1983 (Sec. 431.863), and January 1, 1984 through June 30, 1990
(Sec. 431.864); and the period effective beginning July 1, 1990
(Sec. 431.865). We found it was necessary in the past to retain the
regulatory provisions for periods prior to July 1, 1990, because of
pending reconsiderations of proposed disallowances for State medical
assistance expenditures based on expenditure reports for these prior
periods and the processing of waiver requests related to these prior
periods. The pre-July 1, 1990 provisions are now obsolete and we are
therefore deleting them from the Code of Federal Regulations (CFR). We
are deleting Secs. 431.861 through 431.864.
III. Progressive Reductions in FFP for Fiscal Years 1982 Through 1984
Sections 1903 (s) and (t) of the Act (as enacted by sections
2161(a) and (b) of the Medicare and Medicaid Amendments of 1981 (Pub.
L. 97-35)) provided for progressive reductions in total Federal
payments to the States for medical assistance expenditures to which
they were entitled for fiscal years 1982 through 1984. The reductions
applied only to the 49 States with Medicaid programs in operation under
State plans approved by HCFA as of July 1, 1981, and to the District of
Columbia. The provisions in section 1903(s) of the Act were effective
August 13, 1981, and repealed by the same enacting legislation,
effective for calendar quarters beginning on or after October 1, 1984.
The provisions in section 1903(t) of the Act were effective August 13,
1981, and repealed by the same enacting legislation, effective after
payments for the first quarter of fiscal year 1985.
Sections 433.8 and subpart E of part 433 (Secs. 433.201 through
433.217) implemented sections 1903 (s) and (t) of the Act. We are
deleting these regulations to reflect the repeal of sections 1903 (s)
and (t) of the Act by section 2161(c) of the Medicare and Medicaid
Amendments of 1981.
IV. Payment for Physician Billing for Clinical Laboratory Services
Section 1902(a)(32) of the Act prohibits Medicaid payments to
anyone other than the provider of services, except in specified
circumstances. This restriction is commonly referred to as the direct
payment provision and is implemented in Sec. 447.10. From 1980 to 1984,
section 1902(a)(43) of the Act provided an exception for physician
billing of laboratory services which a physician did not personally
perform or supervise. Specifically, section 1902(a)(43) of the Act
provided that, if the State plan provides for payment to a physician
for laboratory services for which the physician (or any other physician
with whom he shares his practice) did not personally perform or
supervise, the plan must include a provision to ensure that payment for
such laboratory services does not exceed the payment authorized for
such services under Medicare. Section 2303(g)(1)(B) of the Deficit
Reduction Act of 1984 (DRA '84) (Pub. L. 98-369) deleted section
1902(a)(43) of the Act.
Sections 447.10(g)(1) and 447.342 implemented section 1902(a)(43)
of the Act. Section 447.10(g)(1) provides that payment may be made to a
physician who bills for outside laboratory services that the physician
orders and pays for, but that he or she did not personally perform or
supervise, or which were not performed or supervised by another
physician with whom he or she shares a practice. Section 447.342
specifies that if a State plan provides for payment to a physician who
bills for clinical laboratory services performed by an outside
laboratory, the State plan must provide that the agency will not pay
the physician more than the amount that would be authorized under
Medicare.
We are deleting Secs. 447.10(g)(1) and 447.342 to reflect the
deletion of section 1902(a)(43) of the Act by DRA '84.
V. Utilization Control: Skilled Nursing Facilities
Section 1902(a)(30) of the Act requires each State Medicaid agency
to have methods and procedures to safeguard against unnecessary
utilization of care and services. In addition to this general
provision, State Medicaid agencies are required to meet a number of
specific requirements for certain institutional providers. The
utilization control requirements are set forth in the regulations at 42
CFR part 456.
Prior to the implementation of the Omnibus Budget and
Reconciliation Act of 1987 (OBRA '87) (Pub. L. 100-203), the Medicaid
statute made a distinction between skilled nursing facility (SNF) and
intermediate care facility (ICF) services. The Medicaid statute
contained separate certification requirements for facilities providing
each type of long-term care. Section 1905(a)(4) of the Act authorized
coverage of inpatient services furnished in facilities that met the SNF
requirements. Section 1905(a)(15) of the Act provided for coverage of
inpatient services in facilities certified to provide ICF services.
OBRA '87 significantly revised the Medicaid requirements for long-
term care facility services. The legislation created a new Medicaid
benefit category called ``nursing facility (NF) services'' that,
effective October 1, 1990, replaced the Medicaid SNF and ICF benefits.
NFs participating in the Medicaid program must now meet certain
requirements specified in section 1919 of the Act. Among the reform
provisions was an entirely new process, called preadmission screening
and annual resident review (PASARR), which requires States to determine
the need for admitting or retaining individuals with mental illness or
mental retardation who are applicants to or residents of NFs, and to
determine whether these persons require specialized services. The NF
requirements are codified in the regulations at 42 CFR part 483,
subparts B and D, and part 488. The PASARR requirements are codified in
the regulations at 42 CFR part 483, subparts C and E.
The utilization control regulations relating to SNF services at 42
CFR part 456 are obsolete because they implement the utilization
control process that was in effect before the implementation of the
nursing home reform provisions in OBRA '87. Formerly, sections 1902(a)
(30), (31), and (44), 1903(g)(1), and 1903(i)(4) of the Act contained
requirements for monitoring and controlling utilization of SNF
services. Specifically, section
[[Page 38397]]
1902(a)(30)(A) of the Act required each State to have methods and
procedures relating to utilization of care and services and further
required State procedures to include facility-based utilization review
plans for SNF services as described in section 1903(i)(4) of the Act.
Furthermore, section 1902(a)(30)(B) of the Act required SNFs to screen
each admission and precluded certain medical and other professional
personnel from establishing criteria for utilization review in SNFs.
Section 1902(a)(31) (formerly in section 1902(a)(26)) of the Act
required States to establish medical review programs for SNF services.
State medical review programs had to (1) ensure that SNF services were
furnished in accordance with a written plan of care and be periodically
reviewed, and (2) provide for on-site inspections of the care being
provided to Medicaid patients in each SNF by State inspection teams who
would report their findings to the State Medicaid agency. Section
1902(a)(44) of the Act required the medical necessity of a Medicaid
patient's initial placement and continued stay to be certified by a
physician, a nurse practitioner, or clinical nurse specialist. Section
1903(g)(1) of the Act provided for a reduction in Federal matching
funds for extended inpatient stays unless the State Medicaid agency
could satisfactorily demonstrate that it had an effective program of
medical review for SNF services. Section 1903(i)(4) of the Act
precluded Federal matching payments for inpatient services provided by
a SNF unless its utilization review plan met the Medicare standards.
All of the utilization control provisions mentioned above that
applied to SNF services were stricken from the Medicaid statute by OBRA
'87. Specifically, OBRA '87 made the following deletions to the Act:
The utilization review requirements in sections
1902(a)(30)(B) and 1903(i)(4) of the Act were deleted by sections
4211(h)(3) and 4211(i) of OBRA '87, respectively.
The medical review requirements in section 1902(a)(31) of
the Act were deleted by section 4212(d)(2) of OBRA '87.
The certification and recertification of need requirements
in section 1902(a)(44) of the Act were deleted by section 4212(e)(1)(A)
of OBRA '87.
The reduction in Federal matching funds provision in
section 1903(g) of the Act was deleted by 4212(d)(1) of OBRA '87.
We are removing all of the regulations that contain utilization
control requirements for SNFs to reflect the elimination of those
provisions from the Medicaid statute made by OBRA '87.
VI. Other Technical Changes
In conjunction with the deletions discussed above in this preamble,
we are making the following technical changes:
We are deleting references to section 1902(a)(43) of the
Act and Secs. 447.10 and 447.342 associated with payment for physician
billing for clinical laboratory services in Secs. 440.1, 447.10(a), and
447.300.
We are deleting references associated with utilization
control of SNFs in parts 441 and 456 of the regulations.
VII. Waiver of Proposed Rulemaking
We ordinarily publish a notice of proposed rulemaking in the
Federal Register and invite prior public comment on proposed rules. The
notice of proposed rulemaking includes a reference to the legal
authority under which the rule is proposed, and describes the terms and
substances of the proposed rule and the subjects and issues involved.
This procedure can be waived, however, if an agency finds good cause
that notice-and-public-comment rulemaking is impracticable,
unnecessary, or contrary to the public interest and incorporates a
statement of the finding and its reasons in the rule issued.
This final rule merely removes regulations that contain obsolete
provisions and regulations implementing parts of the Social Security
Act that have been repealed. This final rule also makes related
technical corrections. Therefore, we find good cause to waive the
notice of proposed rulemaking procedures as impracticable and
unnecessary and to issue this rule in final form.
VIII. Collection of Information Requirements
This document does not impose information collection and
recordkeeping requirements. Consequently, it need not be reviewed by
the Office of Management and Budget under the authority of the
Paperwork Reduction Act of 1995.
IX. Regulatory Impact Statement
Consistent with the Regulatory Flexibility Act (RFA) (5 U.S.C. 601
through 612), we prepare a regulatory flexibility analysis unless we
certify that a rule will not have a significant economic impact on a
substantial number of small entities. For purposes of the RFA, all
health care providers and facilities are considered to be small
entities. Individuals and States are not included in the definition of
a small entity.
In addition, section 1102(b) of the Act requires us to prepare a
regulatory impact analysis if a rule may have a significant impact on
the operations of a substantial number of small rural hospitals. Such
an analysis must conform to the provisions of section 604 of the RFA.
For purposes of section 1102(b) of the Act, we define a small rural
hospital as a hospital that is located outside of a Metropolitan
Statistical Area and has fewer than 50 beds.
In keeping with the Administration's commitment to reinvent
government regulations, this final rule merely removes regulations that
contain obsolete provisions and makes related technical corrections.
For these reasons, we are not preparing analyses for either the RFA or
section 1102(b) of the Act because we have determined, and we certify,
that this final rule will not have a significant economic impact on a
substantial number of small entities or a significant impact on the
operations of a substantial number of small rural hospitals.
In accordance with the provisions of Executive Order 12866, this
regulation was not reviewed by the Office of Management and Budget.
Under the provisions of Pub. L. 104-121, we have determined that
this rule is not a major rule.
List of Subjects
42 CFR Part 431
Grant programs-health, Health facilities, Medicaid, Privacy,
Reporting and recordkeeping requirements.
42 CFR Part 433
Administrative practice and procedure, Child support, Claims, Grant
programs-health, Medicaid, Reporting and recordkeeping requirements.
42 CFR Part 440
Grant programs-health, Medicaid.
42 CFR Part 441
Family planning, Grant programs-health, Infants and children,
Medicaid, Penalties, Reporting and recordkeeping requirements.
42 CFR Part 447
Accounting, Administrative practice and procedure, Drugs, Grant
programs-health, Health facilities, Health professions, Medicaid,
Reporting and recordkeeping requirements, Rural areas.
[[Page 38398]]
42 CFR Part 456
Administrative practice and procedure, Grant programs-health,
Health facilities, Medicaid, Reporting and recordkeeping requirements.
42 CFR chapter IV is amended as set forth below:
A. Part 431 is amended as follows:
PART 431--STATE ORGANIZATION AND GENERAL ADMINISTRATION
1. The authority citation for part 431 continues to read as
follows:
Authority: Sec. 1102 of the Social Security Act (42 U.S.C.
1302).
Secs. 431.861, 431.862, 431.863, and 431.864 [Removed and reserved]
2. Sections 431.861, 431.862, 431.863, and 431.864 are removed and
reserved.
Sec. 431.865 [Amended]
3. In paragraph (d)(8) of Sec. 431.865, the parenthetical phrase
``(See Sec. 431.863(d)(8) for an example of a disallowance
computation)'' is removed.
B. Part 433 is amended as follows:
PART 433--STATE FISCAL ADMINISTRATION
1. The authority citation for part 433 continues to read as
follows:
Authority: Secs. 1102, 1137, 1902(a)(4), 1902(a)(18),
1902(a)(25), 1902(a)(45), 1902(t), 1903(a)(3), 1903(d)(2),
1903(d)(5), 1903(i), 1903(o), 1903(p), 1903(r), 1903(w), 1912, 1917,
and 1919(e) of the Social Security Act (42 U.S.C. 1302, 1320b-7,
1396a(a)(4), 1396a(a)(18), 1396a(a)(25), 1396a(a)(45), 1396a(t),
1396b(a)(3), 1396b(d)(2), 1396b(d)(5), 1396b(i), 1396b(o), 1396b(p),
1396b(r), 1396b(w), 1396k and 1396(p)).
Sec. 433.8 [Removed and reserved]
2. Section 433.8 is removed and reserved.
Secs. 433.201--433.217 (Subpart E) [Removed and reserved]
3. In part 433, subpart E consisting of Secs. 433.201 through
433.217 is removed and reserved.
C. Part 440 is amended as follows:
PART 440--SERVICES: GENERAL PROVISIONS
1. The authority citation for part 440 continues to read as
follows:
Authority: Sec. 1102 of the Social Security Act (42 U.S.C.
1302).
Sec. 440.1 [Amended]
2. In Sec. 440.1, the reference that reads ``1902(a)(43) Laboratory
services. (See also Secs. 447.10 and 447.342 for related provisions on
laboratory services.)'' is removed.
D. Part 441 is amended as follows:
PART 441--SERVICES: REQUIREMENTS AND LIMITS APPLICABLE TO SPECIFIC
SERVICES
1. The authority citation for part 441 continues to read as
follows:
Authority: Sec. 1102 of the Social Security Act (42 U.S.C.
1302).
Sec. 441.152 [Amended]
2. In Sec. 441.152(b), the reference ``456.260,'' is removed.
Sec. 441.155 [Amended]
3. Section 441.155 is amended as follows:
a. In paragraph (a), the phrase ``in accordance with Secs. 456.180-
456.181, and 456.280-456.281 of this subchapter,'' is revised to read
``in accordance with Secs. 456.180 and 456.181 of this chapter,''.
b. In paragraph (d), the references ``456.260(b),'' and
``456.280,'' are removed.
E. Part 447 is amended as follows:
PART 447--PAYMENTS FOR SERVICES
1. The authority citation for part 447 continues to read as
follows:
Authority: Sec. 1102 of the Social Security Act (42 U.S.C.
1302).
2. In Sec. 447.10, paragraph (a) is revised, paragraph (g)(1) is
removed, and paragraphs (g)(2) through (g)(4) are redesignated as
paragraphs (g)(1) through (g)(3). The revision reads as follows:
Sec. 447.10 Prohibition against reassignment of provider claims.
(a) Basis and purpose. This section implements section 1902(a)(32)
of the Act which prohibits State payments for Medicaid services to
anyone other than a provider or recipient, except in specified
circumstances.
* * * * *
Sec. 447.300 [Amended]
3. In Sec. 447.300, the second sentence that reads ``Section
447.342 of this subpart implements section 1902(a)(43) of the Act,
which permits the State plan to provide for payment to a physician for
laboratory services which the physician did not personally perform or
supervise.'' is removed.
Subpart F--[Amended]
4. In subpart F, the undesignated center heading that reads
``CLINICAL LABORATORY SERVICES'' is removed.
Sec. 447.342 [Removed and reserved]
5. Section 447.342 is removed and reserved.
F. Part 456 is amended as follows:
PART 456--UTILIZATION CONTROL
1. The authority citation for part 456 continues to read as
follows:
Authority: Sec. 1102 of the Social Security Act (42 U.S.C.
1302), unless otherwise noted.
Sec. 456.1 [Amended]
2. Section 456.1 is amended as follows:
a. In paragraph (b)(2), the phrase ``skilled nursing facilities
(SNF's),'' is removed.
b. In paragraph (b)(2)(iv), the phrase ``skilled nursing and'' is
removed.
c. In paragraph (b)(3), the phrases ``skilled nursing facilities
and'' and ``SNF or'' are removed.
d. In paragraph (b)(5), the word ``SNF's,'' is removed.
e. In paragraph (b)(6), the phrase ``hospital, mental hospital, or
SNF services'' is revised to read ``hospital or mental hospital
services''.
f. In Table 1, remove from the first and second columns the
following:
------------------------------------------------------------------------
------------------------------------------------------------------------
Subpart E--Utilization Control: Skilled
Nursing Facilities
Certification of need for care..... 1903(g)(1)(A)
Medical evaluation and admission 1902(a)(26)(A)
review. 1903(g)(1)(C)
Plan of care....................... 1902(a)(26)(A)
1903(g)(1)(B)
Utilization review plan................ 1902(a)(30)
1903(g)(1)(C) 1903(i)(4)
Discharge plan......................... 1902(a)(30).
------------------------------------------------------------------------
g. In Table 1, in column 1, subparts H and I are revised to read as
follows:
Table 1
[This table relates the regulations in this part to the sections of the
Act on which they are based.]
------------------------------------------------------------------------
------------------------------------------------------------------------
* * * * *
Subpart H--Utilization Review Plans: FFP, Waivers,
and Variances for Hospitals and Mental Hospitals. * * *
Subpart I--Inspections of Care in Intermediate Care
Facilities and Institutions for Mental Diseases. * * *
* * * * *
------------------------------------------------------------------------
Sec. 456.5 [Amended]
3. Section 456.5 is amended as follows:
[[Page 38399]]
a. The phrase ``hospitals, mental hospitals, and SNFs.'' is revised
to read ``hospitals and mental hospitals.''
b. The phrase ``Sec. 456.232 of subpart D; and Sec. 456.332 of
subpart E.'' is revised to read ``and Sec. 456.232 of subpart D.''
Secs. 456.250 through 456.348 (Subpart E) [Removed and reserved]
4. In part 456, subpart E consisting of Secs. 456.250 through
456.348 is removed and reserved.
Sec. 456.480 [Amended]
5. In Sec. 456.480, the phrase ``skilled nursing facilities,'' is
removed.
Secs. 456.481, 456.482, and 456.652 [Amended]
6. In part 456, remove the references ``456.260,'' ``456.270,'' and
``456.280,'' wherever they appear, in the following places:
a. Sections 456.481 (a) and (b);
b. Section 456.482; and
c. Sections 456.652 (a)(1), (a)(2), and (a)(4).
Subpart H--[Amended]
7. In the heading of subpart H, the phrase ``Hospitals, Mental
Hospitals, and Skilled Nursing Facilities'' is revised to read
``Hospitals and Mental Hospitals.''
Sec. 456.500 [Amended]
8. In Sec. 456.500, in the introductory text, the phrase
``hospitals, mental hospitals and SNFs,'' is revised to read
``hospitals and mental hospitals,''
Sec. 456.501 [Amended]
9. Section 456.501 is amended as follows:
a. In paragraph (a), the phrase ``hospital, mental hospital, or
SNF'' is revised to read ``hospital or mental hospital''
b. In paragraph (c), the phrase ``in subpart C, D, or E of this
part,'' is revised to read ``in subpart C or D of this part,''
Sec. 456.505 [Amended]
10. Section 456.505 is amended as follows:
a. In the introductory text, the phrase ``subpart C, D, or E of
this part,'' is revised to read ``subpart C or D of this part,''
b. In the introductory text, the phrase, ``Sec. 456.206 of subpart
D, and Sec. 456.306 of subpart E,'' is revised to read ``and
Sec. 456.206 of subpart D,''
c. In paragraph (b), the phrase ``under subpart C, D, or E.'' is
revised to read ``under subpart C or D of this part.''
Sec. 456.506 [Amended]
11. Section 456.506 is amended as follows:
a. In paragraph (b), the phrase ``hospital, mental hospital, or
SNF'' is revised to read ``hospital or mental hospital''
b. In paragraph (b), the phrase ``under subpart C, D, or E of this
part.'' is revised to read ``under subpart C or D of this part.''
Sec. 456.508 [Amended]
12. Section 456.508 is amended as follows:
a. In paragraph (a), the phrase ``under subpart C, D, or E.'' and,
in paragraph (b), the phrase ``under subpart C, D, or E of this part.''
are revised to read ``under subpart C or D of this part.''
b. In paragraph (b), the phrase ``hospital, mental hospital, or
SNF'' is revised to read ``hospital or mental hospital.''
Sec. 456.520 [Amended]
13. Section 456.520 is amended as follows:
a. In paragraph (b), the phrase ``Sec. 456.207 of subpart D; or
Sec. 456.307 of subpart E;'' is revised to read ``or Sec. 456.207 of
subpart D;''
b. In paragraph (c), in the definition of Remote facility, the
phrase ``under subpart C, D, or E of this part,'' is revised to read
``under subparts C or D of this part,''
c. In paragraph (c), in the definition of Variance, the phrase
``Sec. 456.238 of subpart D; and Secs. 456.333, 456.334, and 456.336 of
subpart E.'' is revised to read ``and Sec. 456.238 of subpart D.''
Sec. 456.522 [Amended]
14. Section 456.522 is amended as follows:
a. In paragraph (d), the word ``SNF,'' is removed.
b. In paragraph (i), the phrase ``subpart C, D, or E of this
part;'' and, in paragraph (j), the phrase ``subpart C, D, or E of this
part;'' are revised to read ``subpart C or D of this part;''
15. In the heading of subpart I, the phrase ``Skilled Nursing and''
is removed.
Sec. 456.600 [Amended]
16. In Sec. 456.600, the phrase ``in skilled nursing facilities
(SNF's),'' is removed.
Sec. 456.601 [Amended]
17. Section 456.601 is amended as follows:
a. In the definition of Facility, the phrase ``a skilled nursing
facility,'' is removed.
b. In the definition of Institution for mental diseases, the phrase
``skilled nursing or'' is removed.
Sec. 456.603 [Amended]
18. In Sec. 456.603, paragraph (a)(1) is removed and reserved.
Sec. 456.608 [Amended]
19. In Sec. 456.608(a) introductory text, remove the words ``SNFs
and.''
Sec. 456.610 [Amended]
20. In Sec. 456.610(b)(1), remove the word ``SNFs,''.
Sec. 456.651 [Amended]
21. In Sec. 456.651, in the definition of Level of care, the phrase
``skilled nursing facility,'' is removed.
Sec. 456.654 [Amended]
22. Section 456.654 is amended as follows:
a. In paragraph (a)(2), the phrase ``skilled nursing facilities,''
is removed.
b. In paragraph (a)(7), the phrase ``skilled nursing or'' is
removed.
c. In paragraph (a)(8), the phrase ``or skilled nursing facility''
is removed.
(Catalog of Federal Domestic Assistance Program No. 93.778, Medical
Assistance Program)
Dated: May 28, 1996.
Bruce C. Vladeck,
Administrator, Health Care Financing Administration.
Dated: July 11, 1996.
Donna E. Shalala,
Secretary.
[FR Doc. 96-18537 Filed 7-23-96; 8:45 am]
BILLING CODE 4120-01-P
Complete official Federal Register PDF
FR Doc. 96-18467 Oranges, Grapefruit, Tangerines, and Tangelos Grown in Florida; Assessment Rate
[Federal Register Volume 61, Number 143 (Wednesday, July 24, 1996)]
[Rules and Regulations]
[Pages 38354-38355]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-18467]
-----------------------------------------------------------------------
DEPARTMENT OF AGRICULTURE
Agricultural Marketing Service
7 CFR Part 905
[Docket No. FV96-905-1 IFR]
Oranges, Grapefruit, Tangerines, and Tangelos Grown in Florida;
Assessment Rate
AGENCY: Agricultural Marketing Service, USDA.
ACTION: Interim final rule with request for comments.
-----------------------------------------------------------------------
SUMMARY: This interim final rule establishes an assessment rate for the
Citrus Administrative Committee (Committee) under Marketing Order No.
905 for the 1996-97 fiscal period and continuing until amended. The
Committee is responsible for local administration of the marketing
order which regulates the handling of citrus grown in Florida.
Authorization to assess citrus handlers enables the Committee to incur
expenses that are reasonable and necessary to administer the program.
DATES: Effective on August 1, 1996. Comments received by August 23,
1996 will be considered prior to issuance of a final rule.
ADDRESSES: Interested persons are invited to submit written comments
concerning this rule. Comments must be sent in triplicate to the Docket
Clerk, Fruit and Vegetable Division, AMS, USDA, P.O. Box 96456, room
2523-S, Washington, DC 20090-6456, FAX (202) 720-5698. Comments should
reference the docket number and the date and page number of this issue
of the Federal Register and will be available for public inspection in
the Office of the Docket Clerk during regular business hours.
FOR FURTHER INFORMATION CONTACT:
Doris Jamieson, Southeast Marketing Field Office, Fruit and Vegetable
Division, AMS, USDA, P.O. Box 2276, Winter Haven, FL 33883-2276,
telephone (813) 299-4770, FAX (813) 299-5169, or Tershirra Yeager,
Marketing Order Administration Branch, Fruit and Vegetable Division,
AMS, USDA, P.O. Box 96456, room 2523-S, Washington, DC 20090-6456,
telephone (202) 720-8139, FAX (202) 720-5698. Small business may
request information on compliance with this regulation by contacting:
Jay Guerber, Marketing Order Administration Branch, Fruit and Vegetable
Division, AMS, USDA, P.O. Box 96456, Room 2523-S, Washington, D.C.
20090-6456; telephone: (202) 720-2491, Fax # (202) 720-5698.
SUPPLEMENTARY INFORMATION: This rule is issued under Marketing
Agreement No. 84 and Order No. 905, as amended (7 CFR part 905),
regulating the handling of Oranges, Grapefruit, Tangerines, and
Tangelos Grown in Florida, hereinafter referred to as the ``order.''
The marketing agreement and order are effective under the Agricultural
Marketing Agreement Act of 1937, as amended (7 U.S.C. 601-674),
hereinafter referred to as the ``Act.''
The Department of Agriculture (Department) is issuing this rule in
conformance with Executive Order 12866.
This rule has been reviewed under Executive Order 12778, Civil
Justice Reform. Under the marketing order now in effect, Florida citrus
handlers are subject to assessments. Funds to administer the order are
derived from such assessments. It is intended that the assessment rate
as issued herein will be applicable to all assessable citrus beginning
August 1, 1996, and continuing until amended suspended, or terminated.
This rule will not preempt any State or local laws, regulations, or
policies, unless they present an irreconcilable conflict with this
rule.
The Act provides that administrative proceedings must be exhausted
before parties may file suit in court. Under section 608c(15)(A) of the
Act, any handler subject to an order may file with the Secretary a
petition stating that the order, any provision of the order, or any
obligation imposed in connection with the order is not in accordance
with law and request a modification of the order or to be exempted
therefrom. Such handler is afforded the opportunity for a hearing on
the petition. After the hearing the Secretary would rule on the
petition. The Act provides that the district court of the United States
in any district in which the handler is an inhabitant, or has his or
her principal place of business, has jurisdiction to review the
Secretary's ruling on the petition, provided an action is filed not
later than 20 days after the date of the entry of the ruling.
Pursuant to requirements set forth in the Regulatory Flexibility
Act (RFA), the Agricultural Marketing Service (AMS) has considered the
economic impact of this rule on small entities.
The purpose of the RFA is to fit regulatory actions to the scale of
business subject to such actions in order that small businesses will
not be unduly or disproportionately burdened. Marketing orders issued
pursuant to the Act, and the rules issued thereunder, are unique in
that they are brought about through group action of essentially small
entities acting on their own
[[Page 38355]]
behalf. Thus, both statutes have small entity orientation and
compatibility.
There are approximately 11,000 producers of citrus in the
production area and approximately 100 handlers subject to regulation
under the marketing order. Small agricultural producers have been
defined by the Small Business Administration (13 CFR 121.601) as those
having annual receipts less than $500,000, and small agricultural
service firms are defined as those whose annual receipts are less than
$5,000,000. The majority of citrus producers and handlers may be
classified as small entities.
The Florida citrus marketing order provides authority for the
Committee, with the approval of the Department, to formulate an annual
budget of expenses and collect assessments from handlers to administer
the program. The members of the Committee are producers and handlers of
Oranges, Grapefruit, Tangerines, and Tangelos Grown in Florida. They
are familiar with the Committee's needs and with the costs for goods
and services in their local area and are thus in a position to
formulate an appropriate budget and assessment rate. The assessment
rate is formulated and discussed in a public meeting. Thus, all
directly affected persons have an opportunity to participate and
provide input.
The Committee met on May 24, 1996, and unanimously recommended
1996-97 expenditures of approximately $230,000 and an assessment rate
of $0.0035 per 4/5 bushel carton of citrus. In comparison, last year's
budgeted expenditures were $215,000. The assessment rate of $0.0035 is
$0.00025 higher than last year's assessment. Major expenditures
recommended by the Committee for the 1996-97 year include $102,760 for
salaries, $36,000 for the Manifest Department-FDACS, and $13,500 for
insurance and bonds. Budgeted expenses for these items in 1995-96 were
$101,740 for salaries, $36,000 for the Manifest Department-FDACS, and
$13,350 for insurance and bonds.
The assessment rate recommended by the Committee was derived by
dividing anticipated expenses by expected shipments of Florida citrus.
Citrus shipments for the year are estimated at 64,500,000 which should
provide $225,750 in assessment income. Income derived from handler
assessments, along with interest income and funds from the Committee's
authorized reserve, will be adequate to cover budgeted expenses. Any
excess of revenues or expenses will be placed in the reserve fund.
Funds in the reserve will be kept within the maximum permitted by the
order.
While this rule will impose some additional costs on handlers, the
costs are in the form of uniform assessments on all handlers. Some of
the additional costs may be passed on to producers. However, these
costs will be offset by the benefits derived by the operation of the
marketing order. Therefore, the AMS has determined that this rule will
not have a significant economic impact on a substantial number of small
entities. Interested persons are invited to submit information on the
regulatory and informational impacts of this action on small
businesses.
The assessment rate established in this rule will continue in
effect indefinitely unless modified, suspended, or terminated by the
Secretary upon recommendation and information submitted by the
Committee or other available information.
Although this assessment rate is effective for an indefinite
period, the Committee will continue to meet during each fiscal period
to consider recommendations for modification of the assessment rate.
The dates and times of Committee meetings are available from the
Committee or the Department. Committee meetings are open to the public
and interested persons may express their views at these meetings. The
Department will evaluate Committee recommendations and other available
information to determine whether modification of the assessment rate is
needed. Further rulemaking will be undertaken as necessary. The
Committee's 1996-97 budget and those for subsequent fiscal periods will
be reviewed and, as appropriate, approved by the Department.
After consideration of all relevant material presented, including
the information and recommendation submitted by the Committee and other
available information, it is hereby found that this rule, as
hereinafter set forth, will tend to effectuate the declared policy of
the Act.
Pursuant to 5 U.S.C. 553, it is also found and determined upon good
cause that it is impracticable, unnecessary, and contrary to the public
interest to give preliminary notice prior to putting this rule into
effect, and that good cause exists for not postponing the effective
date of this rule until 30 days after publication in the Federal
Register because: (1) The Committee needs to have sufficient funds to
pay its expenses which are incurred on a continuous basis: (2) the
1996-97 fiscal period begins on August 1, 1996, and the marketing order
requires that the rate of assessment for each fiscal period apply to
all assessable citrus handled during such fiscal period; (3) handlers
are aware of this action which was unanimously recommended by the
Committee at a public meeting and is similar to other assessment rate
actions issued in part years; and (4) this interim final rule provides
a 30-day comment period, and all comments timely received will be
considered prior to finalization of this rule.
List of Subjects in 7 CFR Part 905
Grapefruit, Marketing agreements, Oranges, Reporting and
recordkeeping requirements, Tangelos, Tangerines.
For the reasons set forth in the preamble, 7 CFR part 905 is
amended as follows:
PART 905--ORANGES, GRAPEFRUIT, TANGERINES, AND TANGELOS GROWN IN
FLORIDA
1.The authority citation for 7 CFR part 905 continues to read as
follows:
Authority: 7 U.S.C. 601-674.
2. A new subpart--Assessment Rates consisting of a new Sec. 905.235
and a new subpart heading--Grade and Size Requirements are added
immediately preceding Sec. 905.306 Orange, Grapefruit, Tangerine, and
Tangelo regulation to read as follows:
Note: This section will appear in the Code of Federal
Regulations.
Subpart--Assessment Rates
Sec. 905.235 Assessment rate.
On and after August 1, 1996, an assessment rate of $0.0035 per \4/
5\ bushel carton is established for assessable for Florida citrus
covered under the order.
Subpart--Grade and Size Requirements
Sec. 905.306 Orange, Grapefruit, Tangerine and Tangelo Regulation.
* * * * *
Dated: July 15, 1996.
Robert C. Keeney,
Director, Fruit and Vegetable Division.
[FR Doc. 96-18467 Filed 7-23-96; 8:45 am]
BILLING CODE 3410-02-M
Complete official Federal Register PDF
FR Doc. 96-18463 Honey Research, Promotion, and Consumer Information Order Amendment of the Rules and Regulations to Add HTS Code for Flavored Honey; Correction
[Federal Register Volume 61, Number 143 (Wednesday, July 24, 1996)]
[Rules and Regulations]
[Pages 38355-38356]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-18463]
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DEPARTMENT OF AGRICULTURE
7 CFR Part 1240
[AMS-FV-96-701.C]
Honey Research, Promotion, and Consumer Information Order--
Amendment of the Rules and Regulations to Add HTS Code for Flavored
Honey; Correction
AGENCY: Agricultural Marketing Service, USDA.
ACTION: Correction to final rule.
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[[Page 38356]]
SUMMARY: This document contains a correction to the final rule which
was published Tuesday, June 11, 1996 [61 FR 29461]. The final rule
added a Harmonized Tariff Schedule code number for imported flavored
honey to provide authority for the U.S. Customs Service to collect an
assessment on all imported flavored honey.
EFFECTIVE DATE: June 12, 1996.
FOR FURTHER INFORMATION CONTACT: Richard B. Schultz, Research and
Promotion Branch, Fruit and Vegetable Division, AMS, USDA, P.O. Box
96456, Room 2535-S, Washington, D.C. 29909-6456; telephone (202) 720-
9915.
SUPPLEMENTARY INFORMATION:
Background
The Honey Research, Promotion, and Consumer Information Order
(Order) provides that each producer and importer shall pay to the Honey
Board (Board) a one cent per pound assessment rate on honey and honey
products produced in or imported into the United States. Section 1240.5
of the Order defines honey products as products wherein honey is a
principal ingredient.
In order for the U.S. Customs Service (Customs) to collect the
assessments on imported honey and honey products, each product must be
identified by a Harmonized Tariff Schedule (HTS) code number. Since the
Boards inception, honey has been assessed by Customs under HTS code
number 0409.00.00. However, there were no HTS codes for honey products.
The Board identified flavored honey as a product containing
approximately 99 percent honey and estimated that 500,000 pounds of
flavored honey are imported into the United States annually without the
importer paying the required assessment. At the recommendation of the
Board, the Department of Agriculture (Department) requested the
Committee for Statistical Annotation of Tariff Schedules (Committee) of
the International Trade Commission to establish an HTS code for
flavored honey. The Committee notified the Department on February 13,
1996, that a code had been established for flavored honey. On June 11,
1996, the Department published a final rule at 61 FR 29461 that added
the new HTS code for flavored honey to the rules and regulations under
the Order to provide authority for Customs to collect the assessment on
all imported, flavored honey. However, the HTS code number published
was incorrect, and Customs will be unable to collect assessments on
imported, flavored honey until the correct number is published.
Need for Correction
In the final rule, the HTS code for flavored honey was incorrectly
listed as 21006.90.9988 rather than as 2106.90.9988.
Correction of Publication
Accordingly, in the June 11, 1996, publication, FR Doc. 96-14758,
page 29462, first column, 7 CFR Part 1240, Sec. 1240.115, paragraph (e)
is corrected by removing the figure ``21006.90.9988'' and adding in its
place ``2106.90.9988''.
Dated: July 15, 1996.
Robert C. Keeney,
Director, Fruit and Vegetable Division.
[FR Doc. 96-18463 Filed 7-23-96; 8:45 am]
BILLING CODE 3410-02-P
Complete official Federal Register PDF
FR Doc. 96-18358 Miscellaneous Coverage Provisions of the Social Security Independence and Program Improvements Act of 1994; Coverage Provisions of the Social Security Domestic Employment Reform Act of 1994
[Federal Register Volume 61, Number 143 (Wednesday, July 24, 1996)]
[Rules and Regulations]
[Pages 38363-38368]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-18358]
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SOCIAL SECURITY ADMINISTRATION
20 CFR Part 404
RIN 0960-AE00
Miscellaneous Coverage Provisions of the Social Security
Independence and Program Improvements Act of 1994; Coverage Provisions
of the Social Security Domestic Employment Reform Act of 1994
AGENCY: Social Security Administration (SSA).
ACTION: Final rules.
-----------------------------------------------------------------------
SUMMARY: These final regulations reflect sections 303, 305, 319 and 320
of the Social Security Independence and Program Improvements Act of
1994, which made several amendments to the Social Security Act (the
Act) concerning the Social Security coverage of State and local
government election officials and election workers effective beginning
January 1, 1995, police officers and firefighters effective with
respect to modifications filed under section 218 of the Act on and
after August 16, 1994, Federal employees transferred to international
organizations effective January 1, 1995, and nonresident aliens who
enter the United States under a cultural exchange program effective
October 1, 1994. These final regulations also reflect section
1001(d)(2)(E) of the Technical and Miscellaneous Revenue Act of 1988,
which excludes from coverage certain services performed by certain
nonresident aliens temporarily in the United States to pursue a
vocational or nonacademic technical education. In addition, these final
regulations also reflect section 2 of the Social Security Domestic
Employment Reform Act of 1994, which concerns the coverage of domestic
services performed in a private home of the employer.
EFFECTIVE DATE: These regulations are effective July 24, 1996.
FOR FURTHER INFORMATION CONTACT: Lois Berg, Legal Assistant, Division
of Regulations and Rulings, Social Security Administration, 3-B-1
Operations Building, 6401 Security Boulevard, Baltimore, MD 21235,
(410) 965-1713 for information about these rules. For information on
eligibility, claiming benefits, or coverage of earnings, call
[[Page 38364]]
our national toll-free number, 1-800-772-1213.
SUPPLEMENTARY INFORMATION: Public Law 103-296, which established SSA as
an independent agency, also made a number of miscellaneous program
improvements. These final rules reflect sections 303, 305, 319 and 320
of Public Law 103-296, which amended sections 210 and 218 of the Act
with respect to the Social Security coverage of certain workers.
Section 303 of Public Law 103-296 amended section 210(a)(7)(F)(iv)
of the Act to provide that services performed by State and local
government election officials and workers who earn less than $1000 in a
calendar year for those services are excluded from the mandatory Social
Security and Medicare coverage generally provided under section
210(a)(7)(F) for State and local government employees who are not
members of a State or local government retirement system. Similarly,
section 303 amended section 210(p)(2)(E) of the Act to provide that
services of election officials and workers who earn less than the
$1,000 annual amount also are excluded from the mandatory Medicare only
coverage generally provided under section 210(p)(2) for State and local
government employees hired after March 31, 1986. Section 303 also
amended section 218(c)(8) of the Act to provide that services of
election officials and workers who earn less than the $1,000 annual
amount may, at the option of the State, be excluded from a voluntary
section 218 coverage agreement entered into by a State. Finally,
section 303 provides that the $1,000 amount will be adjusted for all
three exclusions beginning in calendar year 2000 to reflect changes in
wages in the economy. Prior to these statutory amendments, these three
exclusions applied to election officials and workers who earned less
than $100 in a calendar year, rather than $1,000. This increase in the
threshold amount to $1000 for these exclusions is effective for
services performed on or after January 1, 1995. However, the higher
threshold for the optional exclusion from voluntary coverage under a
section 218 agreement will apply only if the State executes a
modification to its coverage agreement electing to take the exclusion
with the increased $1000 based limit. We are amending
Secs. 404.1018b(c)(1)(v), 404.1020(a)(3)(iv) and 404.1210(e) to reflect
the statutory changes made by section 303.
Section 305 of Public Law 103-296 amended section 218(l) of the Act
to give all States the option to extend Social Security coverage to
police officers and firefighters who are under the State or political
subdivision employer's retirement system. This amendment is effective
with respect to section 218 coverage modifications filed by States on
or after August 16, 1994. Prior to this amendment, section 218(l)
authorized only 23 named States to provide this coverage. We are
amending Secs. 404.1206 (a) and (f), 404.1211(d), and 404.1212 to
reflect this amendment and to update the terminology so that
``policeman'' or ``policemen'' are now referred to as ``police
officer(s)'', and ``fireman'' or ``firemen'' are now referred to as
``firefighter(s)''.
Section 319 of Public Law 103-296 amended section 210 of the Act by
adding a new subsection, subsection (r), to provide for the
continuation of Social Security coverage as employment of services
performed by Federal civilian employees temporarily transferred to an
international organization regardless of whether the international
organization is within or outside the United States. Prior to this
amendment, which is effective with respect to services performed on or
after January 1, 1995, coverage would not continue if the services were
performed outside the United States and it would continue as self-
employment if performed within the United States. Specifically, under
new subsection (r), work performed in the employ of an international
organization, pursuant to a temporary transfer from a Federal agency
under section 3582 of title 5 of the United States Code, is covered
employment if the individual worked in covered employment for a Federal
agency immediately prior to the transfer and would be entitled, upon
separation from the international organization and proper application,
to reemployment with the Federal agency under section 3582. We are
amending Secs. 404.1004, 404.1018, 404.1034 and 404.1068(d) to reflect
this statutory change.
Section 320 of Public Law 103-296 amended section 210(a)(19) of the
Act to exclude from Social Security coverage certain services performed
by nonresident aliens who enter the United States on a temporary basis
as part of a cultural exchange program under a visa issued under
section 101(A)(15)(Q) of the Immigration and Nationality Act. This
provision is effective October 1, 1994. We are revising Sec. 404.1036
to reflect this statutory change. We also are revising Sec. 404.1036 to
reflect section 1001(d)(2)(E) of Public Law 100-647, the Technical and
Miscellaneous Revenue Act of 1988, which, effective for remuneration
for services received after December 31, 1986, amended section
210(a)(19) of the Act to exclude from coverage certain services
performed by nonresident aliens temporarily in the United States as
nonimmigrants to pursue a vocational or nonacademic technical
education. These individuals are ``M'' visa holders under section
101(a)(15)(M) of the Immigration and Nationality Act. Finally, we are
revising Sec. 404.1036 to reflect section 9(a)(1) of Public Law 100-525
which in 1988 amended section 101(a)(15)(J) of the Immigration and
Nationality Act by substituting ``Director of United States Information
Agency'' for ``Secretary of State.''
Section 2 of Public Law 103-387, the Social Security Domestic
Employment Reform Act of 1994, made several changes with respect to the
coverage of domestic services which are also reflected in these final
rules. First, section 2 amended section 209(a)(6)(B) of the Act to
raise the threshold per employer for coverage of payments made to an
employee for domestic services in the employer's private home from $50
per calendar quarter to $1,000 per calendar year beginning in 1994.
However, under a special provision for calendar year 1994, if a
domestic employee was paid less than $1,000 by an employer, the
employer must report the earnings on form W-2 if the services would
have been covered under the law as it existed prior to the enactment of
Public Law 103-387. Although payment of Social Security taxes on such
1994 earnings is not required, the employee will receive Social
Security coverage credit for those 1994 earnings which must be
reported. In calendar years after 1995, the $1000 threshold will be
subject to adjustment in $100 increments based on the formula in
section 215(a)(1)(B)(i) of the Act to reflect changes in wages in the
economy. We are amending Secs. 404.1042(c)(2) and 404.1057(a) to
reflect the statutory increase in the coverage threshold for domestic
services.
Section 2 of Public Law 103-387 also amended section 209(a)(6)(B)
to provide that, effective with respect to remuneration paid after
1993, the coverage of earnings for domestic services in the private
home of an employer on a farm operated for profit is determined in the
same manner as earnings for any other domestic services and those
earnings are subject to the new threshold instead of the threshold
applicable to other agricultural labor. Prior to the statutory
amendment, which is subject to the special provision for 1994 discussed
above, the coverage threshold generally applicable to domestic services
did not apply to domestic services which also
[[Page 38365]]
constituted agricultural labor under section 210(f) of the Act. We are
amending Secs. 404.1055 and 404.1056(a)(6) to reflect this statutory
change. In addition, we are amending Sec. 404.1055(c)(1) to provide a
technical clarification consistent with the example currently provided
in that paragraph. We are also amending Sec. 404.1056(a)(6) to update
cross-references to Secs. 404.1058 and 404.1059 to reflect the fact
that those sections were redesignated as Secs. 404.1057 and 404.1058,
respectively, on March 1, 1990 (55 FR 7306, 7310).
Finally, section 2 of Public Law 103-387 added a new paragraph (21)
to section 210(a) of the Act to provide that domestic services
performed after December 31, 1994, in the private home of the employer
are excluded from Social Security coverage, regardless of the amount
earned, in any year in which the employee is under age 18 if the
domestic service is not the employee's principal occupation. We are
adding Sec. 404.1038 to reflect this provision and we are also amending
Secs. 404.1001(d)(2), 404.1003, 404.1004(a) and 404.1012 to provide
cross-references to new Sec. 404.1038.
Regulatory Procedures
Justification for Final Rules
Pursuant to section 702(a)(5) of the Act, SSA follows the
Administrative Procedure Act (APA) rulemaking procedures specified in 5
U.S.C. 553 in the development of its regulations. The APA provides
exceptions to its notice and public comment procedures when an agency
finds there is good cause for dispensing with such procedures on the
basis that they are impracticable, unnecessary, or contrary to the
public interest. We have determined that, under 5 U.S.C. 553(b)(B),
good cause exists for waiver of the notice and public comment
procedures for these regulations. Opportunity for prior public comment
is unnecessary because these regulations contain no discretionary
policy and only reflect provisions in Public Law 103-296, Public Law
103-387, and Public Law 100-647 and make nonsubstantive, technical
changes. Therefore, we are issuing these changes to our regulations as
final rules. Also, since these regulations reflect the statute, the 30-
day delay in effectuating regulations, as provided in 5 U.S.C. 553(d),
does not apply.
Regulatory Flexibility Act
We certify that these regulations will not have a significant
economic impact on a substantial number of small entities, including
small governmental jurisdictions. Any economic impact involved in the
regulations results directly from the statutory amendments, not from
the regulations. Therefore, a regulatory flexibility analysis as
provided in Public Law 96-354, the Regulatory Flexibility Act, is not
required.
Executive Order 12866
We have consulted with the Office of Management and Budget (OMB)
and determined that these rules do not meet the criteria for a
significant regulatory action under Executive Order 12866. Thus, they
were not subject to OMB review.
Paperwork Reduction Act
These regulations impose no reporting/recordkeeping requirements
necessitating clearance by OMB.
(Catalog of Federal Domestic Assistance Program No. 96.001
Social Security--Disability Insurance; 96.002 Social Security--
Retirement Insurance; and 96.004 Social Security--Survivors
Insurance)
List of Subjects in 20 CFR Part 404
Administrative practice and procedure, Blind benefits, Disability
benefits, Old-Age, Survivors and disability insurance, Reporting and
recordkeeping requirements, Social security.
Dated: July 8, 1996.
Approved:
Shirley S. Chater,
Commissioner of Social Security.
For the reasons set forth in the preamble, subparts K and M of part
404 of chapter III of title 20 of the Code of Federal Regulations are
amended as set forth below.
PART 404--FEDERAL OLD-AGE, SURVIVORS AND DISABILITY INSURANCE
(1950-)
Subpart K--[Amended]
1. The authority citation for subpart K of part 404 continues to
read as follows:
Authority: Secs. 202(v), 205(a), 209, 210, 211, 229(a), 230,
231, and 702(a)(5) of the Social Security Act (42 U.S.C. 402(v),
405(a), 409, 410, 411, 429(a), 430, 431, and 902(a)(5)).
2. Section 404.1001 is amended by revising paragraph (d)(2) to read
as follows:
Sec. 404.1001 Introduction.
* * * * *
(d) * * *
(2) In Secs. 404.1012 through 404.1038 we discuss various types of
work that are not covered as employment for social security purposes.
* * * * *
3. Section 404.1003 is amended by revising the fourth sentence to
read as follows:
Sec. 404.1003 Employment.
* * * Exceptions to the general rule are contained in
Secs. 404.1012 through 404.1038 which explain the kinds of work
excluded from employment. * * *
4. Section 404.1004 is amended by revising the introductory text of
paragraph (a) and by adding a new paragraph (a)(5) to read as follows:
Sec. 404.1004 What work is covered as employment.
(a) General requirements of employment. Unless otherwise excluded
from coverage under Secs. 404.1012 through 404.1038, the work you
perform as an employee for your employer is covered as employment under
social security if one of the following situations applies:
* * * * *
(5) Your work performed after December 31, 1994, is in the employ
of an international organization pursuant to a transfer from a Federal
agency under section 3582 of title 5 of the United States Code and both
the following are met:
(i) Immediately before the transfer, your work for the Federal
agency was covered employment; and
(ii) You would be entitled, upon separation from the international
organization and proper application, to reemployment with the Federal
agency under section 3582.
* * * * *
5. Section 404.1012 is amended by revising the second sentence to
read as follows:
Sec. 404.1012 Work excluded from employment.
* * * They are described in Secs. 404.1014 through 404.1038 and are
exceptions to the general rule in Sec. 404.1004 on the kinds of work
that are covered as employment. * * *
6. Section 404.1018 is amended by redesignating paragraph (g) as
paragraph (h) and by adding a new paragraph (g) to read as follows:
Sec. 404.1018 Work by civilians for the United States Government or
its instrumentalities--wages paid after 1983.
* * * * *
(g) Work for international organizations. Work performed for an
international organization by an employee who was transferred from a
Federal agency is generally covered as
[[Page 38366]]
employment if, immediately before the transfer, the employee's services
for the Federal agency were covered. (See Sec. 404.1004(a)(5) and
Sec. 404.1034(c).)
* * * * *
7. Section 404.1018b is amended by revising paragraph (c)(1)(v) to
read as follows:
Sec. 404.1018b Medicare qualified government employment.
* * * * *
(c) * * *
(1) * * *
(v) By an election official or election worker paid less than $100
in a calendar year for such service prior to 1995, or less than $1,000
for service performed in any calendar year after 1994 and before 2000,
or, for service performed in any calendar year after 1999, less than
the $1,000 base amount, as adjusted pursuant to section 218(c)(8)(B) of
the Social Security Act to reflect changes in wages in the economy. We
will publish this adjustment of the $1,000 base amount in the Federal
Register on or before November 1 preceding the year for which the
adjustment is made.
* * * * *
8. Section 404.1020 is amended by revising paragraph (a)(3)(iv) to
read as follows:
Sec. 404.1020 Work for States and their political subdivisions and
instrumentalities.
(a) * * *
(3) * * *
(iv) As an election official or election worker if the remuneration
paid in a calendar year for such service prior to 1995 is less than
$100, or less than $1000 for service performed in any calendar year
after 1994 and before 2000, or, for service performed in any calendar
year after 1999, less than the $1000 base amount, as adjusted pursuant
to section 218(c)(8)(B) of the Social Security Act to reflect changes
in wages in the economy. We will publish this adjustment of the $1000
base amount in the Federal Register on or before November 1 preceding
the year for which the adjustment is made.
9. Section 404.1034 is amended by revising the first sentence in
the introductory text of paragraph (a), by redesignating paragraph (c)
as paragraph (d) and revising it, and by adding a new paragraph (c) to
read as follows:
Sec. 404.1034 Work for an international organization.
(a) If you work as an employee of an international organization
entitled to enjoy privileges, exemptions, and immunities as an
international organization under the International Organizations
Immunities Act (59 Stat. 669), your work is excluded from employment
except as described in paragraphs (b) and (c) of this section. * * *
* * * * *
(c) Your work performed after December 31, 1994 will not be
excluded under this section if you perform service in the employ of an
international organization pursuant to a transfer from a Federal agency
under section 3582 of title 5 of the United States Code and
(i) Immediately before such transfer you performed service with a
Federal agency which was covered as employment; and
(ii) You would be entitled, upon separation from the international
organization and proper application, to reemployment with the Federal
agency under section 3582.
(d) If you are a citizen of the United States and work in the
United States as an employee of an international organization that
meets the conditions in paragraph (a) of this section and you are not
subject to coverage based on paragraph (c) of this section, you are
considered to be self-employed (Sec. 404.1068(d)).
10. Section 404.1036 is revised to read as follows:
Sec. 404.1036 Certain nonresident aliens.
(a) Foreign students. (1) Foreign students (nonimmigrant aliens)
may be temporarily in the United States under subparagraph (F) of
section 101(a)(15) of the Immigration and Nationality Act to attend a
school or other recognized place of study approved by the Attorney
General. On-campus work or work under permission granted by the
Immigration and Naturalization Service which is done by these students
is excluded from employment. Other work done by these foreign students
is not excluded from employment under this section.
(2) Foreign students (nonimmigrant aliens) may be temporarily in
the United States under subparagraph (M) of section 101(a)(15) of the
Immigration and Nationality Act to pursue a vocational or nonacademic
technical education approved by the Attorney General. Work done by
these students to carry out the purpose for which they were admitted is
excluded from employment. Other work done by these foreign students is
not excluded from employment under this section.
(b) Exchange visitors. (1) Exchange visitors (nonimmigrant aliens)
may be temporarily in the United States under subparagraph (J) of
section 101(a)(15) of the Immigration and Nationality Act to
participate in exchange visitor programs designated by the Director of
the United States Information Agency. Work done by these exchange
visitors to carry out the purpose for which they were admitted and for
which permission has been granted by the sponsor, is excluded from
employment. Other work done by these exchange visitors is not excluded
from employment under this section.
(2) Exchange visitors (nonimmigrant aliens) may be temporarily in
the United States under subparagraph (Q) of section 101(a)(15) of the
Immigration and Nationality Act to participate in an international
cultural exchange program approved by the Attorney General. Effective
October 1, 1994, work done by these exchange visitors to carry out the
purpose for which they were admitted is excluded from employment. Other
work done by these exchange visitors is not excluded from employment
under this section.
(c) Spouse and children. Work done by a foreign student's or
exchange visitor's alien spouse or minor child who is also temporarily
in the United States under subparagraph (F), (J), (M), or (Q) of
section 101(a)(15) of the Immigration and Nationality Act is not
excluded from employment under this section unless that spouse or child
and the work that is done meets the conditions of paragraph (a) or (b)
of this section.
11. Section 404.1038 is added under the undesignated center heading
``Work Excluded From Employment'' to read as follows:
Sec. 404.1038 Domestic employees under age 18.
Domestic services you perform in a private home of your employer
are excluded from employment, regardless of the amount earned, in any
year in which you are under age 18 if domestic service is not your
principal occupation. The exclusion applies to the entire year if you
are under age 18 in any part of the year. See Sec. 404.1057.
12. In Sec. 404.1042, paragraph (c)(2) is revised to read as
follows:
Sec. 404.1042 Wages when paid and received.
* * * * *
(c) * * *
(2) We also apply this rule to domestic work in a private home of
the employer, except see Sec. 404.1057(a)(1) for the applicable dollar
amount.
* * * * *
13. Section 404.1055 is amended by revising paragraph (a), the
heading for paragraph (b), paragraph (b)(1), and the second sentence of
paragraph (c)(1) to read as follows:
[[Page 38367]]
Sec. 404.1055 Payments for agricultural labor.
(a) When cash payments are not wages. We do not include as wages
your cash payments in a calendar year after 1987 from an employer for
agricultural labor (see Sec. 404.1056) if your employer's total
expenditures for agricultural labor are less than $2500 in that year
and your employer paid you less than $150 cash remuneration in that
year for your agricultural labor. If you perform domestic service in
the private home of an employer on a farm operated for profit, we do
not include as wages the cash payments for those services if they are
less than the applicable dollar threshold described in
Sec. 404.1057(a).
(b) Exclusions for noncash payments and payments for seasonal
agricultural labor. (1) Noncash payments for agricultural labor are not
wages.
* * * * *
(c) * * *
(1) * * * If the amounts paid are less than $150, we count only
those amounts paid for agricultural labor in determining if the $2500
expenditure test is met. * * *
* * * * *
14. Section 404.1056 is amended by revising paragraph (a)(6) to
read as follows:
Sec. 404.1056 Explanation of agricultural labor.
(a) * * *
(6) If you do nonbusiness work or domestic work in the private home
of your employer, it is agricultural labor if you do the work on a farm
operated for profit. However, if you do domestic work in the private
home of your employer on a farm operated for profit, coverage of your
earnings for the domestic services is determined in the same manner as
earnings for any other domestic employee. Whether those earnings are
covered will be determined based on the threshold described in
Sec. 404.1057(a) and the other coverage rules applicable to domestic
service instead of the threshold applicable to other agricultural
employees. A farm is not operated for profit if the employer primarily
uses it as a residence or for personal or family recreation or
pleasure. (See Sec. 404.1057 for an explanation of domestic work and
Sec. 404.1058(a) for an explanation of nonbusiness work.)
* * * * *
15. Section 404.1057 is amended by revising paragraphs (a) (1), (2)
and (3) and the last sentence in paragraph (a)(4) to read as follows:
Sec. 404.1057 Domestic service in the employer's home.
(a) * * *
(1) The applicable dollar threshold. We do not include as wages
cash payments that an employer makes to you in any calendar year for
domestic service in the employer's private home if the cash pay in that
calendar year is less than the applicable dollar threshold. The
threshold per employer is $1000 in calendar year 1995. In calendar
years after 1995, this amount will be subject to adjustment in $100
increments based on the formula in section 215(a)(1)(B)(i) of the Act
to reflect changes in wages in the economy. Non-cash payments for
domestic service are not counted as wages.
(2) How evaluation is made. We apply the applicable dollar
threshold described in paragraph (a)(1) of this section based on when
the payments are made to you rather than when the pay is earned. To
count toward the applicable dollar threshold, payment must be made to
you in cash (including checks or other forms of money). We apply the
applicable dollar threshold only to services performed as a domestic
employee. If an employer pays you for performing other work, the cash
pay for the nondomestic work does not count toward the applicable
dollar threshold domestic service pay required for the remuneration to
count as wages.
(3) More than one domestic employer. The applicable dollar
threshold as explained in paragraph (a)(1) of this section applies to
each employer when you perform domestic services for more than one
employer in a calendar year. The wages paid by more than one employer
for domestic services may not be combined to decide whether you have
been paid the applicable dollar threshold or more in a calendar year.
The standard applies to each employee when an employer has two or more
domestic employees during a calendar year.
(4) * * * If an employer uses this method to report a cash payment
to you for domestic services in his or her private home in a calendar
year, he or she must use the same method to report payments to other
employees in that year for similar services.
* * * * *
16. Section 404.1068 is amended by revising paragraph (d) to read
as follows:
Sec. 404.1068 Employees who are considered self-employed.
* * * * *
(d) Employees of a foreign government, an instrumentality wholly
owned by a foreign government, or an international organization. If you
are a United States citizen and perform the services that are described
in Sec. 404.1032, Sec. 404.1033(a), or Sec. 404.1034(a), you are
engaged in a trade or business if the services are performed in the
United States and are not covered as employment based upon
Sec. 404.1034(c).
* * * * *
Subpart M--[Amended]
17. The authority citation for subpart M of part 404 continues to
read as follows:
Authority: Secs. 205, 210, 218, and 702(a)(5) of the Social
Security Act (42 U.S.C. 405, 410, 418, and 902(a)(5)); sec. 12110,
Pub. L. 99-272, 100 Stat. 287 (42 U.S.C. 418 note); sec. 9002, Pub.
L. 99-509, 100 Stat. 1970.
18. Section 404.1206 is amended by revising the introductory text
of paragraph (a), paragraphs (a)(6) and (a)(7), by adding a new
paragraph (a)(8), and by revising the last sentence in paragraph (f)(2)
to read as follows:
Sec. 404.1206 Retirement system coverage groups.
(a) General. Section 218(d) of the Act authorizes coverage of
services of employees in positions under a retirement system. For
purposes of obtaining coverage, a system may be considered a separate
retirement system authorized by sections 218(d)(6) (A) or (B) or 218(l)
of the Act. Under these sections of the Act a State may designate the
positions of any one of the following groupings of employees as a
separate retirement system:
* * * * *
(6) The employees of each institution of higher learning, including
junior colleges and teachers colleges;
(7) The employees of a hospital which is an integral part of a
political subdivision; or
(8) The employees in police officers' positions or firefighters'
positions, or both.
* * * * *
(f) * * *
(2) * * * This rule also applies to the coverage of services in
police officers' and firefighters' positions in States and interstate
instrumentalities as discussed in Sec. 404.1212(c).
19. Section 404.1210 is amended by revising paragraph (e) to read
as follows:
Sec. 404.1210 Optionally excluded services.
* * * * *
(e) For modifications executed after 1994, services performed by
election officials or election workers if the payments for those
services in a calendar year are less than $1000 for calendar years
after 1994 and before 2000, or, for calendar years after 1999,
[[Page 38368]]
are less than the $1000 base amount as adjusted pursuant to section
218(c)(8)(B) of the Act to reflect changes in wages in the economy. We
will publish this adjustment of the $1000 base amount in the Federal
Register on or before November 1 preceding the year for which the
adjustment is made.
20. Section 404.1211 is amended by revising paragraph (d) to read
as follows:
Sec. 404.1211 Interstate instrumentalities.
* * * * *
(d) They may provide coverage for firefighters and police officers
in positions under a retirement system.
21. Section 404.1212 is revised to read as follows:
Sec. 404.1212 Police officers and firefighters.
(a) General. For Social Security coverage purposes under section
218 of the Act, a police officer's or firefighter's position is any
position so classified under State statutes or court decisions.
Generally, these positions are in the organized police and fire
departments of incorporated cities, towns, and villages. In most
States, a police officer is a member of the ``police'' which is an
organized civil force for maintaining order, preventing and detecting
crimes, and enforcing laws. The terms ``police officer'' and
``firefighter'' do not include services in positions which, although
connected with police and firefighting functions, are not police
officer or firefighter positions.
(b) Providing coverage. A State may provide coverage of:
(1) Police officers' and firefighters' positions not under a
retirement system as part of an absolute coverage group; or
(2) Police officers' of firefighters' positions, or both, as part
of a retirement system coverage group.
(c) Police officers and firefighters in positions under a
retirement system. All States and interstate instrumentalities may
provide coverage for employees in police officers' or firefighters'
positions, or both, which are under a retirement system by following
the majority vote referendum procedures in Sec. 404.1206(d). In
addition, all interstate instrumentalities and the States listed in
Sec. 404.1207 may use the desire for coverage procedures described in
Sec. 404.1207.
[FR Doc. 96-18358 Filed 7-23-96; 8:45 am]
BILLING CODE 4190-29-P
Complete official Federal Register PDF
FR Doc. 96-18357 When You Are a Full-Time Elementary or Secondary School Student
[Federal Register Volume 61, Number 143 (Wednesday, July 24, 1996)]
[Rules and Regulations]
[Pages 38360-38363]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-18357]
=======================================================================
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[[Page 38361]]
SOCIAL SECURITY ADMINISTRATION
20 CFR Part 404
[Regulation No. 4]
RIN 0960-AE21
When You Are a Full-Time Elementary or Secondary School Student
AGENCY: Social Security Administration.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: We are revising our rule on full-time elementary or secondary
school students to include students enrolled in home schooling or
independent study programs authorized by State or local law, e.g.,
political subdivision, tribal government, or the District of Columbia.
The current rule covers only students in traditional institutional
educational settings; however, many States (or other jurisdictions)
provide for home schooling and independent study programs considered
equivalent to traditional schools. We also are showing clearly that
nonpayment provisions apply to certain prisoners and certain other
inmates of publicly funded institutions who otherwise would meet
student benefit requirements. In addition, we are removing outdated
rules on student benefits relating to months before August 1982.
EFFECTIVE DATE: This final rule is effective July 24, 1996.
FOR FURTHER INFORMATION CONTACT: Daniel T. Bridgewater, Legal
Assistant, Division of Regulations and Rulings, Social Security
Administration, 6401 Security Boulevard, Baltimore, MD 21235, (410)
965-3298 for information about this rule. For information on
eligibility or claiming benefits, call our national toll-free number,
1-800-772-1213.
SUPPLEMENTARY INFORMATION
Background
The Social Security Amendments of 1965, Public Law 89-97, section
306, defined a full-time student as ``an individual who is in full-time
attendance as a student at an educational institution.'' An
``educational institution'' was defined as ``(i) a school or college or
university operated or directly supported by the United States, or by
any State or local government or political subdivision thereof, or (ii)
a school or college or university which has been approved by a State or
accredited by a State-recognized or nationally-recognized accrediting
agency or body, or (iii) a non-accredited school or college or
university whose credits are accepted, on transfer, by not less than
three institutions which are so accredited * * *.'' This definition of
an educational institution was chosen by Congress, as explained in the
Senate report, ``to establish that the institution the child attends is
a bona fide school.'' (See S. Rep. No. 404, 89th Cong., 1st Sess. 96-
97, reprinted in 1965 U.S. Code Cong. & Admin. News 1943, 2036-37.)
The Senate report also stated: ``The committee believes that a
child over age 18 who is attending school full time is dependent just
as a child under 18 or a disabled older child is dependent, and that it
is not realistic to stop such a child's benefit at age 18.'' Ibid. We
understand this to mean that the committee believed that full-time
students attending class are less likely to be able to support
themselves through employment than are part-time or correspondence
students.
The Omnibus Budget Reconciliation Act of 1981, Public Law 97-35,
section 2210, replaced the term ``educational institution'' and its
definition with the requirement that the student be in full-time
attendance at an ``elementary or secondary school,'' which is defined
as a ``school which provides elementary or secondary education,
respectively, as determined under the law of the State or other
jurisdiction in which it is located.'' (See section 202(d)(7)(C)(i) of
the Social Security Act (the Act) as amended.) The purpose of this
amendment was to eliminate child's insurance benefits in the case of
children age 18 or older who attend postsecondary schools. Section 2210
also eliminated child's insurance benefits for children in elementary
or secondary school after they attained age 19. (See S. Rep. No. 139,
97th Cong., 1st Sess. 427, reprinted in 1981 U.S. Code Cong. & Admin.
News 396, 693.)
Present Policy
Child's insurance benefits under sections 202(d)(6) and (7) of the
Act usually terminate when the child attains age 18. However, there is
an exception that allows for continuation of entitlement to child's
benefits for persons age 18 until attainment of age 19 who are full-
time elementary or secondary school students.
Section 202(d)(7)(A) of the Act defines a full-time elementary or
secondary school student as ``an individual who is in full-time
attendance as a student at an elementary or secondary school, as
determined by the Commissioner (in accordance with regulations
prescribed by him) in the light of the standards and practices of the
schools involved * * *.''
Section 404.367 of our current regulations states, in pertinent
part:
* * * You are a full-time elementary or secondary school student
if you meet all the following conditions:
(a) You attend a school which provides elementary or secondary
education, respectively, as determined under the law of the State or
other jurisdiction in which it is located;
(b) You are in full-time attendance in a day or evening
noncorrespondence course of at least 13 weeks duration and are
carrying a subject load which is considered full-time for day
students under the institution's standards and practices.
Additionally, your scheduled attendance must be at the rate of at
least 20 hours per week unless we find that:
(1) The school attended does not schedule at least 20 hours per
week and going to that particular school is your only reasonable
alternative; or
(2) Your medical condition prevents you from having scheduled
attendance of at least 20 hours per week. To prove that your medical
condition prevents you from scheduling 20 hours per week, we may
request that you provide appropriate medical evidence or a statement
from the school.
New Policy
Current regulations do not provide guidance on alternative
education programs covered under the laws of the State (or other
jurisdiction) in which a student resides. Before the development of
such programs, our policy had been in keeping with the traditional
definition of educational institutions. Such traditional institutional-
type schools include public, private, and religious schools. Except for
the two specific exceptions noted in the regulations, we also
consistently have required that the student be scheduled to attend
school for at least 20 hours per week to be considered a full-time
student.
Because most States (or other jurisdictions) have begun providing
for education based on alternative education methods, we evaluated
cases involving home schooling or independent study programs on an
individual basis. This evaluation has provided sufficient information
to formulate these proposed regulations.
Many States or other jurisdictions have laws recognizing home
schooling. Home schooling is an educational program in which the
student is generally taught within the home by a parent/teacher. The
State or other jurisdiction specifies the requirements that must be met
and the procedures that must be followed in these situations. There
must be a parent or other home school teacher participating in the home
school instruction. This participation may be in the form of
[[Page 38362]]
actual instruction, answering questions, administering tests, keeping
attendance records, etc. The student must be carrying a course load
that is considered full-time using the same standards and practices
used for full-time day students in the traditional setting, as
determined under the law of the State or other jurisdiction in which
the student resides.
The child's home schooling teacher must submit evidence that legal
requirements for home schooling are met. Depending on these
requirements, this evidence might include a copy of the certificate of
intent that is filed with the local school or school district,
documentation that State-mandated tests were taken, a list of the
courses being taught, and a copy of the attendance log or chart.
Also, some States or other jurisdictions authorize the governing
board of a school district or a county office of education to offer
independent study to meet the educational needs of pupils in accordance
with certain requirements. An independent study course could (but need
not) include instruction in the student's home or elsewhere outside the
classroom. The study program is conducted in accordance with written
policies and rules. It is coordinated, evaluated, and under the
supervision of an employee of the school district or county office of
education who has been certified to act as a home teacher. Independent
study programs which involve instruction and supervision by a teacher
employed by the school (or local school district) include written
agreements for each independent study student specifying, among other
things, the duration of the agreement and a statement of the number of
course credits to be earned by the pupil upon completion. The effect of
the written agreement is to extend the educational setting beyond the
traditional classroom. It is a situation similar to those students who
are in school-approved work-study programs that extend the educational
setting.
We therefore are revising Sec. 404.367 to include students enrolled
in home schooling or independent study programs authorized by State (or
other jurisdiction) laws. The student must be carrying a course load
considered to be full-time under the standards and practices used for
day students who are in full-time attendance at traditional educational
institutions. Students in these types of situations include a wide
range of individuals. For example, home schooling students may be in
that situation for religious reasons or because the parents do not
agree with the local school curriculum.
Students in independent study programs may include those
individuals who cannot take advantage of the traditional school
setting, such as hard-to-keep-in-school students (unable to adjust or
delinquents), single mothers, or expectant mothers. All students--those
in traditional programs and those in alternative programs--who work are
subject to the annual earnings test.
A home schooling program must meet the requirements set forth by
the State (or other jurisdiction). An independent study program
organized in accordance with the State (or other jurisdiction)
requirements must be coordinated, evaluated and supervised by an
employee of the school district or county office of education and must
comply with the policies of the school district or county office of
education. To be entitled to child's insurance benefits as a student,
an individual enrolled in either type of program must meet both the
Federal and the State (or other jurisdiction) full-time attendance
(FTA) requirements.
When determining FTA, the home schooling teacher will be the
certifying school official for FTA purposes. In independent study
situations, the school teacher/official supervising the performance of
the student under the written agreement between the school and the
student will be the certifying official for FTA.
When determining the number of hours spent in school attendance for
an approved independent study program, we will combine the number of
agreed upon hours spent in independent study with the number of hours
in actual school attendance. The course load must be equivalent to that
of a student in the school's full-time day program.
We will continue to exclude from eligibility those individuals who
are enrolled solely in correspondence courses. We do not believe that
such courses satisfy the definition of an elementary or secondary
school in the Act, and usually they would not meet State (or other
jurisdiction) requirements.
We also are revising Sec. 404.367 to clearly show that section
202(x) of the Act, regarding nonpayment of benefits to certain
prisoners and certain other inmates of publicly funded institutions,
applies to those individuals who otherwise meet student benefit
requirements. Section 202(x) is applicable to those who otherwise would
qualify for benefits under section 202(d)(7)(A) of the Act.
Further, we are removing Sec. 404.369 since it applies only to
child's benefits for full-time students for months before August 1982.
This section has not been applicable for over 10 years and there is no
longer a need to retain it. Sections that refer to Sec. 404.369 (i.e.,
Secs. 404.350-404.353) are revised to remove such references.
On December 7, 1995, we published this final rule as a proposed
rule in the Federal Register at 60 FR 62783, and on December 18, 1995,
a minor correction was published at 60 FR 65093. The proposed rule
provided for a 60-day comment period; however, there were no public
comments during this period. Therefore, we are publishing this final
rule essentially unchanged from the proposed rule.
In addition, SSA is not providing a 30-day delay in the effective
date of this final rule. The rule relieves a restriction on who may
qualify for student benefits and meets the exception under 5 U.S.C.
553(d)(1).
Regulatory Procedures
Executive Order 12866
We have consulted with the Office of Management and Budget and
determined that these rules do not meet the criteria for a significant
regulatory action under Executive Order 12866.
Regulatory Flexibility Act
We certify that this final rule will not have a significant
economic impact on a substantial number of small entities since it only
affects individuals. Therefore, a regulatory flexibility analysis as
provided in Public Law 96-354, the Regulatory Flexibility Act, is not
required.
Paperwork Reduction Act
This rule imposes no additional reporting or recordkeeping
requirements subject to Office of Management and Budget clearance.
(Catalog of Federal Domestic Assistance Program Nos. 96.001 Social
Security--Disability Insurance; 96.002 Social Security--Retirement
Insurance; 96.004 Social Security-- Survivors Insurance)
List of Subjects in 20 CFR Part 404
Administrative practice and procedure, Blind, Disability benefits,
Old-Age, Survivors, and Disability Insurance, Reporting and
recordkeeping requirements, Social Security.
Dated: July 8, 1996.
Shirley S. Chater,
Commissioner of Social Security.
For the reasons set out in the preamble, subpart D of part 404 of
Chapter III of Title 20 of the Code of Federal Regulations is amended
as follows:
[[Page 38363]]
PART 404--FEDERAL OLD-AGE, SURVIVORS AND DISABILITY INSURANCE
(1950- )
Subpart D--[Amended]
1. The authority citation for subpart D of part 404 continues to
read as follows:
Authority: Secs. 202, 203(a) and (b), 205(a), 216, 223, 225,
228(a)-(e), and 702(a)(5) of the Social Security Act (42 U.S.C. 402,
403(a) and (b), 405(a), 416, 423, 425, 428(a)-(e), and 902(a)(5)).
2. Section 404.350 is amended by revising paragraph (a)(5) to read
as follows:
Sec. 404.350 Who is entitled to child's benefits.
(a) * * *
(5) You are under age 18; you are 18 years old or older and have a
disability that began before you became 22 years old; or you are 18
years or older and qualify for benefits as a full-time student as
described in Sec. 404.367.
* * * * *
3. Section 404.351 is amended by revising paragraph (a) to read as
follows:
Sec. 404.351 Who may be reentitled to child's benefits.
* * * * *
(a) The first month in which you qualify as a full-time student.
(See Sec. 404.367.)
* * * * *
4. Section 404.352 is amended by revising the fourth sentence of
paragraph (b)(1) to read as follows:
Sec. 404.352 When child's benefits begin and end.
* * * * *
(b) * * *
(1) * * * If you become 18 years old and you qualify as a full-time
student who is not disabled, your entitlement ends with the last month
you are a full-time student or, if earlier, the month before the month
you become age 19. * * *
* * * * *
5. Section 404.353 is amended by revising the second sentence of
paragraph (a) to read as follows:
Sec. 404.353 Child's benefit amounts.
(a) * * * The amount of your monthly benefit may change as
explained in Sec. 404.304.
* * * * *
6. Section 404.367 is amended by revising the first sentence of the
introductory text; revising paragraphs (a) and (b); redesignating
paragraphs (c), (d), and (e) as paragraphs (d), (e), and (f),
respectively; adding paragraph (c); and, revising paragraph (f) to read
as follows:
Sec. 404.367 When you are a ``full-time elementary or secondary school
student''.
You may be eligible for child's benefits if you are a full-time
elementary or secondary school student. * * *
(a) You attend a school which provides elementary or secondary
education as determined under the law of the State or other
jurisdiction in which it is located. Participation in the following
programs also meets the requirements of this paragraph:
(1) You are instructed in elementary or secondary education at home
in accordance with a home school law of the State or other jurisdiction
in which you reside; or
(2) You are in an independent study elementary or secondary
education program in accordance with the law of the State or other
jurisdiction in which you reside which is administered by the local
school or school district/jurisdiction.
(b) You are in full-time attendance in a day or evening
noncorrespondence course of at least 13 weeks duration and you are
carrying a subject load which is considered full-time for day students
under the institution's standards and practices. If you are in a home
schooling program as described in paragraph (a)(1) of this section, you
must be carrying a subject load which is considered full-time for day
students under standards and practices set by the State or other
jurisdiction in which you reside;
(c) To be considered in full-time attendance, your scheduled
attendance must be at the rate of at least 20 hours per week unless one
of the exceptions in paragraphs (c)(1) and (2) of this section applies.
If you are in an independent study program as described in paragraph
(a)(2) of this section, your number of hours spent in school attendance
are determined by combining the number of hours of attendance at a
school facility with the agreed upon number of hours spent in
independent study. You may still be considered in full-time attendance
if your scheduled rate of attendance is below 20 hours per week if we
find that:
(1) The school attended does not schedule at least 20 hours per
week and going to that particular school is your only reasonable
alternative; or
(2) Your medical condition prevents you from having scheduled
attendance of at least 20 hours per week. To prove that your medical
condition prevents you from scheduling 20 hours per week, we may
request that you provide appropriate medical evidence or a statement
from the school.
* * * * *
(f) You are not subject to the provisions in Sec. 404.468 for
nonpayment of benefits to certain prisoners and certain other inmates
of publicly funded institutions.
Sec. 404.369 [Removed]
7. Section 404.369 is removed.
[FR Doc. 96-18357 Filed 7-23-96; 8:45 am]
BILLING CODE 4190-29-P
Complete official Federal Register PDF
FR Doc. 96-18029 Procedural Rules Governing Debt-Collection Procedures for Administrative Offset and Federal Income Tax Refund Offset
[Federal Register Volume 61, Number 143 (Wednesday, July 24, 1996)]
[Rules and Regulations]
[Pages 38368-38374]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-18029]
=======================================================================
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NATIONAL LABOR RELATIONS BOARD
29 CFR Part 102
Procedural Rules Governing Debt-Collection Procedures for
Administrative Offset and Federal Income Tax Refund Offset
AGENCY: National Labor Relations Board.
ACTION: Interim rules with request for comments.
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SUMMARY: The National Labor Relations Board (Board) is issuing interim
regulations to implement debt-collection procedures for administrative
offset and Federal income tax refund offset provided for under the Debt
Collection Act of 1982. The Debt Collection Act of 1982 (Pub. L. 97365)
amends the Federal Claims Collection Act of 1966 to authorize the
federal government to employ various debt collection techniques
commonly available to the private sector, including administrative
offset and Federal income tax refund offset. These interim regulations,
set forth as new Subparts U (administrative offset) and V (Federal
income tax refund offset) to Part 102 of the Board's Rules and
Regulations, Series 8, are required in order to enable the Board to
utilize these debt collection procedures that have proven to be cost
effective mechanisms for collection of delinquent debt.
The Debt Collection Act of 1982 (Pub. L. 97-365) authorizes the
federal government to collect debts owed it by means of administrative
offset from other payments due the debtor from the United States,
without the debtor's consent, provided that the debtor is properly
notified and given the opportunity to exercise certain administrative
rights. In Subpart V of the interim rules, the Board establishes Agency
procedures that will be followed to implement 31 U.S.C. 3716, so that
delinquent debts owed to the Board may be collected by means of
administrative offset.
In 1992, the Congress passed and the President signed into law the
Cash Management Improvement Act Amendments of 1992 which requires
federal agencies to participate in the Internal Revenue Service (IRS)
income tax refund offset program in which federal agencies refer
delinquent debt to the IRS for collection by offset from a federal
income tax refund that may be due the delinquent debtor. In Subpart W
of the interim rules, the Board establishes Agency procedures that will
be followed to implement 26 U.S.C. 6402(d) of the Internal Revenue Code
and 31 U.S.C. 3720A, so that delinquent debts owed to the Board may be
referred to the Internal Revenue Service (IRS) for collection by offset
against Federal income tax refunds.
DATES: Effective Date: These regulations are effective July 24, 1996.
Comments: Comments must be submitted on or before September 29,
1996.
ADDRESSES: Send or deliver written comments to John J. Toner, Executive
Secretary, National Labor Relations Board, 1099 14th Street, NW., Room
11602, Washington, DC 20570-0001.
FOR FURTHER INFORMATION CONTACT: John J. Toner, (202) 273-1940.
SUPPLEMENTARY INFORMATION: Effective debt collection by the Board is a
necessary tool for enforcement of the federal labor laws. Under the
Federal Claims Collection Standards (FCCS), 4 CFR 101.2(9), a debt
exists when an amount of money or property has been determined by an
appropriate Agency official to be owed to the United States. The
Board's General Counsel and Regional Office staffs are authorized to
assert and settle claims on behalf of the Board. 29 CFR 101.7-101.9.
As an agency of the United States Government, the Board is entitled
to utilize the offset provisions of Title 31, because debts owed
pursuant to Board orders are in fact debts owed to the United States.
This is because the Board is the public agent chosen by Congress to
enforce the National Labor Relations Act and its backpay orders seek
reparations designed to vindicate the public policy of the statute.
NLRB v. Nathanson, 344 U.S. 25, 27 (1952). In short, the Board acts
primarily in the public interest as the champion and enforcer of
federal labor laws and policies. NLRB v. Deena Artware, 361 U.S. 398,
412 (1960) (Frankfurter, J., concurring) (``[the Board's] primary
function . . . is to prevent the conduct defined as unfair labor
practices.''); National Licorice Co. v. NLRB, 309 U.S. 350, 362 (1940)
(``The Board acts in a public capacity to give effect to the declared
public policy of the [National labor Relations] Act.''). Thus,
judgments of the United States Circuit Courts of Appeals enforcing the
make-whole orders of the Board are rendered exclusively in favor of the
Board as the judgment creditor. Therefore, although the Board's debt
collection actions may ultimately benefit wronged employees, the debts
owed are in fact debts owed to the United States. NLRB v. E.D.P.
Medical Computer Systems, Inc., 6 F.3d 951, 954-55 (2d Cir. 1993).
Accord: General Accounting Office--Decision of
[[Page 38369]]
the General Counsel B-259532 (March 6, 1995) (holding that the Board is
entitled to use the judgment offset provisions of 31 U.S.C. 3728(a),
since the Board's backpay claims are debts owed to the Government and
the Board is the only creditor entitled to pursue collection).
The Agency recently has studied means by which to facilitate its
debt-collection programs. Section 10 of the Debt Collection Act of 1982
(Act) (Public Law 97365) makes several changes in the way Executive and
Legislative agencies collect debts owed the Government. The purpose of
the Act is to improve the ability of the Government to collect monies
owed it.
Under the Act, administrative offset may be initiated when the head
of an agency determines that an individual or entity is indebted to the
United States, or is notified by the head of another agency that a
person or entity is indebted to the United States and that the debtor
is owed monies by the United States. Under the Act, before the
Government may collect a debt by administrative offset, a debtor must
be provided with notice that a debt is owed, the opportunity to inspect
and copy Government records relating to the debt, the option to enter
into a written repayment agreement, and an opportunity for review of
the agency's determination concerning the existence or the amount of
the debt, or the repayment terms. The debtor must notify the agency of
his or her intent to exercise these rights within time periods
prescribed by agency regulations.
The Act permits the agency to initiate an administrative offset
prior to the completion of the due process requirements if failure to
do so would substantially jeopardize the agency's ability to collect
the debt and if the time remaining before payment is to be made does
not reasonably permit completion of the due process procedures. Such
prior offset must be followed by completion of the due process
procedures.
The Act requires agencies to issue regulations for administrative
offset. These interim rules establish the procedures the Board will
follow in making an administrative offset. They are consistent with the
Federal Claims Collection Standards on administrative offset issued
jointly by the Department of Justice and the General Accounting Office
as set forth in 4 CFR 102.3.
In 1992, the Congress passed and the President signed into law the
Cash Management Improvement Act Amendments of 1992, which requires
Federal agencies to participate in the IRS income tax refund offset
program. These interim rules are necessary for the Board's
participation in the IRS offset program. They specify the procedures
the Board will follow with regard to its referral of past-due legally
enforceable debts to IRS for collection by income tax refund offset.
The Board has determined that this document is interpretative
because it merely implements a definitive statutory scheme and the
requirements contained in regulations promulgated by the Department of
Justice, the General Accounting Office, the Internal Revenue Service,
and the Treasury Department. For this reason, and because these interim
rules relate to Agency procedure and practice, the Board has determined
that no notice of proposed rulemaking or a delayed effective date is
required under Sec. 553 of the Administrative Procedure Act (5 U.S.C.
553), and that the provisions of the Regulatory Flexibility Act (5
U.S.C. 601) and the Congressional review provisions of the Small
Business Regulatory Enforcement Fairness Act (5 U.S.C. 801) do not
apply.
The Board has also determined, pursuant to 5 U.S.C. 553(b)(B), that
good cause exists for waiving public comment prior to implementation of
these interim rules. This waiver is based upon the need to have the
regulations in place by December 31, 1996, in order for the Agency to
participate in the IRS income tax refund offset program for the 1997
offset year. The Board finds that the public interest will be served by
participation in the program, and accordingly, good cause exists for
waiving public comment. In addition, the Board finds that public
comment is unnecessary because, as noted above, these rules merely
implement a definite statutory scheme and its concomitant regulations,
and relate to Agency procedure and practice. The Board will, however,
consider any public comments before issuing any final rules.
In sum, to ensure that the Agency's debt collection procedures
provide for the use of reasonable and feasible methods of collection
available under law, and in order to ensure compliance with the
requirements of that law, as further described below, the Board
establishes the following interim regulations to facilitate collection
of delinquent debts by way of administrative offset and Federal income
tax refund offset.
The following is an outline of the contents of this notice.
I. Administrative Offset
A. Purpose
B. Legal Authority
II. Federal Income Tax Refund Offset
A. Purpose and Background
B. Legal Authority
III. Publication in Final
IV. Effective Date
V. Executive Order 12866
VI. Regulatory Flexibility Act
VII. Paperwork Reduction Act
VIII. Small Business Regulatory Enforcement Act
IX. List of Subjects in 29 CFR Part 102
I. Administrative Offset
A. Purpose
An administrative offset is a procedure that permits the
withholding of money payable by the United States to, or held by the
United States on behalf of, a person to satisfy a debt owed the United
States by that person.
B. Legal Authority
The Debt Collection Act of 1982 (P.L. 97-365), 31 U.S.C. 3711,
provides that the head of an executive or administrative agency shall
try to collect a claim of the United States Government for money or
property arising out of the activities of the agency. Section 31 U.S.C.
3716(a) provides that the head of the agency, after trying to collect a
claim under section 3711, may collect by administrative offset only
after affording the debtor notice and other procedural due process
protections. Specifically, the agency head must give the debtor:
(1) written notice of the type and amount of the claim, the
intention of the head of the agency to collect the claim by
administrative offset, and an explanation of the rights of the debtor
under this section;
(2) an opportunity to inspect and copy the records of the agency
related to the claim;
(3) an opportunity for a review within the agency of the decision
of the agency related to the claim; and
(4) an opportunity to make a written agreement with the head of the
agency to repay the amount of the claim.
Section 31 U.S.C. 3716(b) provides for the creation of regulations
to facilitate agency attempts to collect a claim by administrative
offset. This statutory provision further provides that the agency
regulations must be based on the best interests of the United States
Government, the likelihood of collecting a claim by administrative
offset, and, if the 6-year period for bringing a civil action on a
claim under 28 U.S.C. 2415 has expired, the cost effectiveness of
leaving the claim unresolved for more than 6 years. Pursuant to 31
U.S.C. 3716(c), no claim may be collected by administrative offset if
(1) It has been outstanding for more than 10 years after the agency's
right to collect the debt first accrued, or (2) when a statute
explicitly provides for or prohibits using
[[Page 38370]]
administrative offset to collect the claim or type of claim at issue.
II. Federal Income Tax Refund Offset
A. Purpose and Background
Tax refund offset is the means by which a Federal agency may recoup
a delinquent debt owed it by having the Internal Revenue Service (IRS)
withhold payment of a debtor's income tax refund, up to the amount of
the debt, and remit the amount offset to the agency. Authority for the
Federal Tax Refund Offset Program is granted under 26 U.S.C. 6402(d) of
the Internal Revenue Code, 31 U.S.C. 3720A, and section 301.6402-6 of
the Treasury Regulations on Procedure and Administration (26 CFR
301.604-6).
The Program was initially authorized for the collection of
delinquent state or court-ordered payments by absent parents for Aid to
Families with Dependent Children (AFDC), and, later, by the Omnibus
Budget Act of 1981 for non-AFDC child support. Money collected through
the offset of income tax refunds by the IRS is sent to the states by
the Office of Child Support Enforcement.
In 1984, the Deficit Reduction Act (P.L. 98-369) expanded the scope
of the program to include the use of offset to recover delinquent debts
owed by individuals to Federal agencies. The legislation granted the
Secretary of the Treasury authority to conduct a two year pilot
program, from January 1, 1986 through December 31, 1987, in order to
determine the program's feasibility.
The Omnibus Budget Reconciliation Act of 1987 (P.L. 100-203)
extended the Federal Tax Refund Offset Program for 6 months through
June 30, 1988. The Family Support Act of 1988 (P.L. 100-485), which
extended this period through January 10, 1994, provided the opportunity
to expand the program beyond the pilot stage, and authorized corporate
offset. The Emergency Unemployment Compensation Act of 1991 (P.L. 102-
164) gave the program permanent authority. The Cash Management
Improvement Act amendments of 1992 (P.L. 102-589) mandated that all
Federal agencies use tax refund offset to collect consumer debt by
January 1, 1994, and corporate debt by January 1, 1995.
Federal agency participation in the program is also mandated by the
Office of Management and Budget's (OMB) Circular A-129 (Revised),
``Policies for Federal Credit programs and Non-Tax Receivables,'' and
by the Financial Management Services' (FMS') Treasury Financial Manual
Supplement, ``Managing Government Credit.'' The IRS and FMS are jointly
responsible for the administration and operation of the program.
B. Legal Authority
Section 31 U.S.C. 3720A, and implementing regulations of the
Internal Revenue Service (IRS) set forth at 26 CFR 301.6402-6,
authorize the IRS to reduce a tax refund by the amount of a past-due
legally enforceable debt that is owed to the United States by
individuals and business entities.
Section 31 U.S.C. 3720A(a) provides that any Federal agency that is
owed a past-due legally enforceable debt by a named person (individual
or business entity) shall, in accordance with agency and Treasury
regulations, notify the Secretary of the Treasury at least once a year,
of the amount of all such debt. Section 31 U.S.C. 3120A(b) provides
that prior to taking such action, the Federal agency must: (1) notify
the debtor that the agency proposes to take such action; (2) give the
debtor at least 60 days to present evidence that all or part of such
debt is not pastdue or not legally enforceable; (3) consider any
evidence presented by the debtor and determine that an amount of such
debt is past due and legally enforceable; (4) satisfy such other
conditions as the Secretary of the Treasury may prescribe to ensure
that the agency's determination with respect to such debt is valid and
that the agency has made reasonable efforts (determined on a
government-wide basis) to obtain payment of such debt; and (5) certify
that reasonable efforts have been made by the agency (pursuant to
regulations) to obtain payment of such debt.
After receiving notice from a Federal agency that a named person
owes to such agency a past due, legally enforceable debt, the Secretary
of the Treasury determines whether any amounts, as refunds of Federal
taxes paid, are owed to such person. If so, the Secretary reduces such
refund by an amount equal to the amount of such debt, pays the amount
of such reduction to the Federal agency, and notifies such agency of
the person's home address. See 31 U.S.C. 3720A(c). The Secretary of the
Treasury issues regulations prescribing the time or times when agencies
must submit notices of past-due legally enforceable debts, the manner
in which such notices must be submitted, and the necessary information
that must be contained in or accompany such notices. These regulations
specify the minimum amount of the debt to which the foregoing offset
procedure is applicable and the fee that an agency must pay to
reimburse the Secretary of the Treasury for the full cost of applying
such procedure. See 31 U.S.C. 3720A(d).
Any Federal agency that receives notice from the Secretary that an
erroneous payment has been made to such agency shall promptly remit to
the Secretary, in accordance with regulations prescribed by the
Secretary, the amount of such erroneous payment. See 31 U.S.C.
3720A(e).
The statute applies to refunds of business associations only if
they are payable on or after January 1, 1995. The statute applies to
refunds of individuals who owe debts to Federal agencies that have not
participated in the Federal Tax Refund Offset Program prior to the
November 10, 1992, only if such refunds are payable on or after January
1, 1994. See 31 U.S.C. 3720A(g).
III. Publication In Final
As indicated above, the Board has determined, pursuant to 5 U.S.C.
553(b)(B), that good cause exists for waiving public comment prior to
implementation of these interim rules. This waiver is based, in part,
upon the need to have the regulations in place by December 31, 1996, in
order for the Board to participate in the IRS income tax refund offset
program for the 1997 offset year. The Board finds that the public
interest will be served by participation in the program, and
accordingly, good cause exists for waiving public comment. In addition,
the Board finds that public comment is unnecessary because these
interim rules merely implement a definite statutory scheme and the
requirements contained in the regulations promulgated by the Department
of Justice, the General Accounting Office, the Internal Revenue Service
and the Department of the Treasury, and relate to Agency procedure and
practice. As indicated above, however, the Board will consider any
public comments before issuing final rules.
IV. Effective Date
This document will become effective upon publication pursuant to 5
U.S.C. 553(d)(3). In order to participate in the IRS income tax refund
offset program for the 1997 offset year, the Board must promulgate
regulations that are effective by December 31, 1996. Therefore,
pursuant to 5 U.S.C. 553(d)(3), good cause is found for making these
interim rules effective immediately.
V. Executive Order 12866
These interim rules are not classified as ``significant rules''
under Executive Order 12866 on Federal regulations, because they will
not result in (1) an annual effect on the economy of $100
[[Page 38371]]
million or more; (2) a major increase in costs or prices for consumers,
individual industries, Federal, State, or local government agencies, or
geographic regions; or (3) significant adverse effects on competition,
employment, investment, productivity, innovation, or on the ability of
United States-based enterprises to compete with foreign-based
enterprises in domestic or foreign markets. Accordingly, no regulatory
impact assessment is required.
VI. Regulatory Flexibility Act
Because no notice of proposed rule-making is required for interim
rules, the requirements of the Regulatory Flexibility Act (5 U.S.C. 601
et seq.) pertaining to regulatory flexibility analysis do not apply to
these rules.
VII. Paperwork Reduction Act
These interim rules are not subject to Section 3504(h) of the
Paperwork Reduction Act (44 U.S.C. 3501) since they do not contain any
new information collection requirements.
VIII. Small Business Regulatory Enforcement Act
Because these interim rules relate to Agency procedure and practice
and merely implement a definitive statutory scheme and the requirements
contained in regulations promulgated by the Department of Justice, the
General Accounting Office, the Internal Revenue Service, and the
Treasury Department, the Board has determined that the Congressional
review provisions of the Small Business Regulatory Enforcement Fairness
Act (5 U.S.C. 801) do not apply.
IX. List of Subjects in 29 CFR Part 102
Administrative practice and procedure, labor management relations.
To enable the Agency to collect delinquent debts by way of
administrative offset and Federal income tax refund offset, the Board
amends 29 CFR Part 102 as follows:
PART 102--RULES AND REGULATIONS, SERIES 8
1. The authority citation for 29 CFR Part 102 continues to read as
follows:
Authority: Sec. 6, National Labor Relations Act, as amended (29
U.S.C. 151, 156). Section 102.117(c) also issued under Section
552(a)(4)(A) of the Freedom of Information Act, as amended (5 U.S.C.
552(a)(4)(A)). Sections 102.143 through 102.155 also issued under
Section 504(c)(1) of the Equal Access to Justice Act, as amended (5
U.S.C. 504(c)(1)).
2. Subpart U is added to Part 102 to read as follows:
Subpart U--Debt-Collection Procedures By Administrative Offset
Sec.
102.156 Administrative offset; purpose of scope.
102.157 Definitions.
102.158 Agency requests for administrative offsets and cooperation
with other Federal agencies.
102.159 Exclusions.
102.160 Agency responsibilities.
102.161 Notification.
102.162 Examination and copying of records related to the claim;
opportunity for full explanation of the claim.
102.163 Opportunity for repayment.
102.164 Review of the obligation.
102.165 Cost shifting.
102.166 Additional administrative collection action.
102.167 Prior provision of rights with respect to debt.
Sec. 102.156 Administrative offset; purpose and scope.
The regulations in this subpart specify the Agency procedures that
will be followed to implement the administrative offset procedures set
forth in the Debt Collection Act of 1982 (Public Law 97-365), 31 U.S.C.
3716.
Sec. 102.157 Definitions.
For purposes of this subpart--
(a) The term administrative offset means the withholding of money
payable by the United States to, or held by the United States on behalf
of, a person to satisfy a debt owed the United States by that person;
and
(b) The term debtor is any person against whom the Board has a
claim.
(c) The term person does not include any agency of the United
States, or any state or local government.
(d) The terms claim and debt are synonymous and interchangeable.
They refer to an amount of money or property which has been determined
by an appropriate Agency official to be owed to the United States from
any person, organization, or entity, except another federal agency.
(e) A debt is considered delinquent if it has not been paid by the
date specified in the Agency's initial demand letter (Sec. 102.161),
unless satisfactory payment arrangements have been made by that date,
or if, at any time thereafter, the debtor fails to satisfy his
obligations under a payment agreement with the Agency.
Sec. 102.158 Agency requests for administrative offsets and
cooperation with other Federal agencies.
Unless otherwise prohibited by law, the Agency may request that
monies due and payable to a debtor by another Federal agency be
administratively offset in order to collect debts owed the Agency by
the debtor. In requesting an administrative offset, the Agency will
provide the other Federal agency holding funds of the debtor with
written certification stating
(a) That the debtor owes the Board a debt (including the amount of
debt); and
(b) That the Agency has complied with the applicable Federal Claims
Collection Standards, including any hearing or review.
Sec. 102.159 Exclusions.
(a)(1) The Agency is not authorized by the Debt Collection Act of
1982 (31 U.S.C. 3716) to use administrative offset with respect to:
(i) Debts owed by any State or local government;
(ii) Debts arising under or payments made under the Social Security
Act, the Internal Revenue Code of 1954, or the tariff laws of the
United States; or
(iii) When a statute explicitly provides for or prohibits using
administrative offset to collect the claim or type of claim involved.
(2) No claim that has been outstanding for more than 10 years after
the Board's right to collect the debt first accrued may be collected by
means of administrative offset, unless facts material to the right to
collect the debt were not known and could not reasonably have been
known by the official of the Agency who was charged with the
responsibility to discover and collect such debts until within 10 years
of the initiation of the collection action. A determination of when the
debt first accrued should be made according to existing laws regarding
the accrual of debts, such as under 28 U.S.C. 2415. Unless otherwise
provided by contract or law, debts or payments owed the Board which are
not subject to administrative offset under 31 U.S.C. 3716 may be
collected by administrative offset under the common law or other
applicable statutory authority, pursuant to this paragraph or Board
regulations established pursuant to such other statutory authority.
(b) Collection by offset against a judgment obtained by a debtor
against the United States shall be accomplished in accordance with 31
U.S.C. 3728.
Sec. 102.160 Agency responsibilities.
(a) The Agency shall provide appropriate written or other guidance
to Agency officials in carrying out this subpart, including the
issuance of guidelines and instructions, which may be deemed
appropriate. The Agency shall also take such administrative steps as
may be appropriate to carry out the purposes and ensure the effective
implementation of this subpart.
[[Page 38372]]
(b) Before collecting a claim by means of administrative offset,
the Agency must ensure that administrative offset is feasible,
allowable and appropriate, and must notify the debtor of the Agency's
policies for collecting a claim by means of administrative offset.
(c) Whether collection by administrative offset is feasible is a
determination to be made by the Agency on a case-by-case basis, in the
exercise of sound discretion. The Agency shall consider not only
whether administrative offset can be accomplished, both practically and
legally, but also whether administrative offset will further and
protect the best interests of the United States Government. In
appropriate circumstances, the Agency may give due consideration to the
debtor's financial condition, and it is not expected that
administrative offset will be used in every available instance,
particularly where there is an available source of funds. The Agency
may also consider whether administrative offset would substantially
interfere with or defeat the purposes of the program authorizing the
payments against which offset is contemplated.
(d) Administrative offset shall be considered by the Agency only
after attempting to collect a claim under 31 U.S.C. 3711(a).
Sec. 102.161 Notification.
(a) The Agency shall send a written demand to the debtor in terms
which inform the debtor of the consequences of failure to cooperate. In
the demand letter, the Agency shall provide the name of an Agency
employee who can provide a full explanation of the claim. When the
Agency deems it appropriate to protect the Government's interests (for
example, to prevent the statute of limitations, 28 U.S.C. 2415, from
expiring), written demand may be preceded by other appropriate actions.
(b) In accordance with guidelines established by the Agency, the
Agency official responsible for collection of the debt shall send
written notice to the debtor, informing such debtor as appropriate:
(1) Of the nature and amount of the Board's claim;
(2) Of the date by which payment is to be made (which normally
should be not more than 30 days from the date that the initial
notification was mailed or hand delivered);
(3) Of the Agency's intention to collect by administrative offset
and of the debtor's rights in conjunction with such an offset;
(4) That the Agency intends to collect, as appropriate, interest,
penalties, administrative costs and attorneys fees;
(5) Of the rights of such debtor to a full explanation of the
claim, of the opportunity to inspect and copy Agency records with
respect to the claim and to dispute any information in the Agency's
records concerning the claim;
(6) Of the debtor's right to administrative appeal or review within
the Agency concerning the Agency's claim and how such review shall be
obtained;
(7) Of the debtor's opportunity to enter into a written agreement
with the Agency to repay the debt; and
(8) Of the date on which, or after which, an administrative offset
will begin.
Sec. 102.162 Examination and copying of records related to the claim;
opportunity for full explanation of the claim.
Following receipt of the demand letter specified in Sec. 102.161,
and in conformity with Agency guidelines governing such requests, the
debtor may request to examine and copy publicly available records
pertaining to the debt, and may request a full explanation of the
Agency's claim.
Sec. 102.163 Opportunity for repayment.
(a) The Agency shall afford the debtor the opportunity to repay the
debt or enter into a repayment plan which is agreeable to the Agency
and is in a written form signed by such debtor. The Agency may deem a
repayment plan to be abrogated if the debtor should, after the
repayment plan is signed, fail to comply with the terms of the plan.
(b) The Agency has discretion and should exercise sound judgment in
determining whether to accept a repayment agreement in lieu of
administrative offset.
Sec. 102.164 Review of the obligation.
(a) The debtor shall have the opportunity to obtain review by the
Agency of the determination concerning the existence or amount of the
debt as set forth in the notice. In cases where the amount of the debt
has been fully liquidated, the review is limited to ensuring that the
liquidated amount is correctly represented in the notice.
(b) The debtor seeking review shall make the request in writing to
the Agency, not more than 15 days from the date the demand letter was
received by the debtor. The request for review shall state the basis
for challenging the determination. If the debtor alleges that the
Agency's information relating to the debt is not accurate, timely,
relevant or complete, the debtor shall provide information or
documentation to support this allegation.
(c) The Agency may effect an administrative offset against a
payment to be made to a debtor prior to the completion of the due
process procedures required by this subpart, if failure to take the
offset would substantially prejudice the Agency's ability to collect
the debt; for example, if the time before the payment is to be made
would not reasonably permit the completion of due process procedures.
Administrative offset effected prior to completion of due process
procedures must be promptly followed by the completion of those
procedures. Amounts recovered by administrative offset, but later found
not owed to the Agency, will be promptly refunded.
(d) Upon completion of the review, the Agency's reviewing official
shall transmit to the debtor the Agency's decision. If appropriate,
this decision shall inform the debtor of the scheduled date on or after
which administrative offset will begin. The decision shall also, if
appropriate, indicate any changes in information to the extent such
information differs from that provided in the initial notification to
the debtor under Sec. 102.161.
(e) Nothing in this subpart shall preclude the Agency from sua
sponte reviewing the obligation of the debtor, including a
reconsideration of the Agency's determination concerning the debt, and
the accuracy, timeliness, relevance, and completeness of the
information on which the debt is based.
Sec. 102.165 Cost shifting.
Costs incurred by the Agency in connection with referral of debts
for administrative offset will be added to the debt and thus increase
the amount of the offset. Such costs may include administrative costs
and attorneys fees.
Sec. 102.166 Additional administrative collection action.
Nothing contained in this subpart is intended to preclude the
Agency from utilizing any other administrative or legal remedy which
may be available.
Sec. 102.167 Prior provision of rights with respect to debt.
To the extent that the rights of the debtor in relation to the same
debt have been previously provided for under some other statutory or
regulatory authority, the Agency is not required to duplicate those
efforts before effecting administrative offset.
[[Page 38373]]
Subpart V--Debt Collection Procedures By Federal Income Tax Refund
Offset
Sec.
102.168 Federal income tax refund offset; purpose and scope.
102.169 Definitions.
102.170 Agency referral to IRS for tax referral effect; Agency
responsibilities.
102.171 Cost shifting.
102.172 Minimum referral amount.
102.173 Relation to other collection efforts.
102.174 Debtor notification.
102.175 Agency review of the obligation.
102.176 Prior provision of rights with respect to debt.
Sec. 102.168 Federal income tax refund offset; purpose and scope.
The regulations in this subpart specify the Agency procedures that
will be followed in order to implement the federal income tax refund
offset procedures set forth in 26 U.S.C. 6402(d) of the Internal
Revenue Code (Code), 31 U.S.C. 3720A, and section 301.6402-6 of the
Treasury Regulations on Procedure and Administration (26 CFR 301.6402-
6). This statute and the implementing regulations of the Internal
Revenue Service (IRS) at 26 CFR 301.6402-6 authorize the IRS to reduce
a tax refund by the amount of a past-due legally enforceable debt owed
to the United States. The regulations apply to past-due legally
enforceable debts owed to the Agency by individuals and business
entities. The regulations are not intended to limit or restrict debtor
access to any judicial remedies to which he or she may otherwise be
entitled.
Sec. 102.169 Definitions.
For purposes of this subpart:
(a) Tax refund offset refers to the IRS income tax refund offset
program operated under authority of 31 U.S.C. 3720A.
(b) Past-due legally enforceable debt is a delinquent debt
administratively determined to be valid, whereon no more than 10 years
have lapsed since the date of delinquency (unless reduced to judgment),
and which is not discharged under a bankruptcy proceeding or subject to
an automatic stay under 11 U.S.C. 362.
(c) Individual refers to a taxpayer identified by a social security
number (SSN).
(d) Business entity refers to an entity identified by an employer
identification number (EIN).
(e) Taxpayer mailing address refers to the debtor's current mailing
address as obtained from IRS.
(f) Memorandum of understanding refers to the agreement between the
Agency and IRS outlining the duties and responsibilities of the
respective parties for participation in the tax refund offset program.
Sec. 102.170 Agency referral to IRS for tax referral effect; Agency
responsibilities.
(a) As authorized and required by law, the Agency may refer past-
due legally enforceable debts to the Internal Revenue Service (IRS) for
collection by offset from any overpayment of income tax that may
otherwise be due to be refunded to the taxpayer. By the date and in the
manner prescribed by the IRS, the Agency may refer for tax refund
offset past-due legally enforceable debts. Such referrals shall include
the following information:
(1) Whether the debtor is an individual or a business entity;
(2) The name and taxpayer identification number (SSN or EIN) of the
debtor who is responsible for the debt;
(3) The amount of the debt;
(4) A designation that the Agency is referring the debt and (as
appropriate) Agency account identifiers.
(b) The Agency will ensure the confidentiality of taxpayer
information as required by IRS in its Tax Information Security
Guidelines.
(c) As necessary, the Agency will submit updated information at the
times and in the manner prescribed by IRS to reflect changes in the
status of debts or debtors referred for tax refund offset.
(d) Amounts erroneously offset will be refunded by the Agency or
IRS in accordance with the Memorandum of Understanding.
Sec. 102.171 Cost shifting.
Costs incurred by the Agency in connection with referral of debts
for tax refund offset will be added to the debt and thus increase the
amount of the offset. Such costs may include administrative costs and
attorneys fees.
Sec. 102.172 Minimum referral amount.
The minimum amount of a debt otherwise eligible for Agency referral
to the IRS is $25 for individual debtors and $100 for business debtors.
The amount referred may include the principal portion of the debt, as
well as any accrued interest, penalties, administrative cost charges,
and attorney fees.
Sec. 102.173 Relation to other collection efforts.
(a) Tax refund offset is intended to be an administrative
collection remedy to be utilized consistent with IRS requirements for
participation in the program, and the costs and benefits of pursuing
alternative remedies when the tax refund offset program is readily
available. To the extent practical, the requirements of the program
will be met by merging IRS requirements into the Agency's overall
requirements for delinquent debt collection.
(b) As appropriate, debts of an individual debtor of $100 or more
will be reported to a consumer or commercial credit reporting agency
before referral for tax refund offset.
(c) Debts owed by individuals will be screened for administrative
offset potential using the most current information reasonably
available to the Agency, and will not be referred for tax refund offset
where administrative offset potential is found to exist.
Sec. 102.174 Debtor notification.
(a) The Agency shall send appropriate written demand to the debtor
in terms which inform the debtor of the consequences of failure to
repay debts or claims owed the Board.
(b) Before the Agency refers a debt to IRS for tax refund offset,
it will make a reasonable attempt to notify the debtor that:
(1) The debt is past-due;
(2) Unless the debt is repaid or a satisfactory repayment agreement
is established within 60 days thereafter, the debt will be referred to
IRS for offset from any overpayment of tax remaining after taxpayer
liabilities of greater priority have been satisfied; and
(3) The debtor will have a minimum of 60 days from the date of
notification to present evidence that all or part of the debt is not
past due or legally enforceable, and the Agency will consider this
evidence in a review of its determination that the debt is past due and
legally enforceable. The debtor will be advised where and to whom
evidence is to be submitted.
(c) The Agency will make a reasonable attempt to notify the debtor
by using the most recent address information available to the Agency or
obtained from the IRS, unless written notification to the Agency is
received from the debtor stating that notices from the Agency are to be
sent to a different address.
(d) The notification required by paragraph (b) of this section and
sent to the address specified in paragraph (c) of this section may, at
the option of the Agency, be incorporated into demand letters required
by paragraph (a) of this section.
Sec. 102.175 Agency review of the obligation.
(a) The Agency official responsible for collection of the debt will
consider any evidence submitted by the debtor as a result of the
notification required by Sec. 102.174 and notify the debtor of the
result. If appropriate, the debtor will also be advised where and to
whom to
[[Page 38374]]
request a review of any unresolved dispute.
(b) The debtor will be granted 30 days from the date of the
notification required by paragraph (a) of this section to request a
review of the determination of the Agency official responsible for
collection of the debt on any unresolved dispute. The debtor will be
advised of the result.
Sec. 102.176 Prior provision of rights with respect to debt.
To the extent that the rights of the debtor in relation to the same
debt have been previously provided under some other statutory or
regulatory authority, including administrative offset procedures set
forth in Subpart U, the Agency is not required to duplicate those
efforts before referring a debt for tax refund offset.
Dated, Washington, DC, July 9, 1996.
By Direction of the Board.
John J. Toner,
Executive Secretary, National Labor Relations Board.
[FR Doc. 96-18029 Filed 7-23-96; 8:45 am]
BILLING CODE 7545-01-P
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