issue-1996-01-26•Federal Register final rules — 1996-01-26
Federal Register final rules — 1996-01-26
issue-1996-01-26Federal Register final rules — 1996-01-26Regulation
Published Federal Register documents, not public-inspection drafts. The GPO XML/text rendition is a research aid; the linked complete official PDF retains the printed layout and all graphics. Graphics are retained in that PDF and are not independently reproduced in this text rendition. Publication does not establish that every provision remains legally in force.
FR Doc. 96-947 Operating Requirements: Domestic, Flag, Supplemental, Commuter, and On-Demand Operations: Editorial and Terminology Changes
[Federal Register Volume 61, Number 18 (Friday, January 26, 1996)]
[Rules and Regulations]
[Pages 2608-2623]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-947]
[[Page 2607]]
_______________________________________________________________________
Part III
Department of Transportation
_______________________________________________________________________
Federal Aviation Administration
_______________________________________________________________________
14 Parts 119, 121, and 135
Operating Requirements: Domestic, Flag, Supplemental, Commuter, and On-
Demand Operations; Editorial and Terminology Changes; Final Rule
Federal Register / Vol. 61, No. 18 / Friday, January 26, 1996 / Rules
and Regulations
[[Page 2608]]
DEPARTMENT OF TRANSPORTATION
Federal Aviation Administration
14 CFR Parts 119, 121, and 135
[Docket No. 28154; Amendment Nos. 119-1, 121-253, and 135-60]
RIN 2120-AG03
Operating Requirements: Domestic, Flag, Supplemental, Commuter,
and On-Demand Operations: Editorial and Terminology Changes
AGENCY: Federal Aviation Administration (FAA), DOT.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: This amendment adopts changes to certain references and
language in the regulations governing the operations of certificate
holders under parts 121 and 135. Many of these changes are made
necessary as a result of the issuance of new part 119, which has made
numerous references in parts 121 and 135 incorrect or obsolete. The
changes to parts 121 and 135 in this amendment will not impose any
additional restrictions on persons affected by these regulations.
EFFECTIVE DATE: February 26, 1996.
FOR FURTHER INFORMATION CONTACT:
Linda Williams, Office of Rulemaking (ARM- ); Federal Aviation
Administration, 800 Independence Avenue SW., Washington, DC 20591;
telephone (202) 267-9685.
SUPPLEMENTARY INFORMATION:
Background
On December 20, 1995, new part 119, Certification: Air Carriers and
Commercial Operators, was published in the Federal Register (60 FR
65913; December 20, 1995). Part 119 reorganizes, into one part,
certification and operations specifications requirements that formerly
existed in SFAR 38-2 and in parts 121 and 135. The final rule for new
part 119 also deleted or changed certain sections in part 121, Subparts
A--D, and part 135, Subpart A, because most of the requirements in
those subparts appear in part 119. This amendment makes editorial and
terminology changes in the remaining subparts of parts 121 and 135 to
conform those parts to the language of part 119 and to make certain
other changes.
Part 119 was issued as part of a large rulemaking effort to upgrade
the requirements that apply to scheduled operations conducted in
airplanes that seat 10 to 30 passengers. These operations will in the
future be conducted under the requirements of part 121, in accordance
with the final rule published on December 20, 1995. The changes in this
final rule are necessary as a result of the issuance of part 119, and
as ``house-keeping'' items for commuter operations affected by the
final rule published on December 20, 1995. These changes are consistent
with the commuter rule.
Editorial Changes
The new part 119 and revisions to parts 121 and 135 require certain
editorial changes. These changes are being made for clarity and
consistency and to facilitate combining the certification requirements
of parts 121 and 135 into new part 119. None of these changes impose
any additional requirements on persons affected by the regulations.
The following are examples of changes being made in this final rule
to the sections remaining in part 121 and part 135 in order to make
these sections consistent with each other and with new part 119 and to
reflect current FAA administrative procedures:
(1) References to ``domestic, flag, or supplemental air carriers''
have been changed to ``domestic, flag, or supplemental operations,'' or
``certificate holder conducting domestic, flag, or supplemental
operations,'' as appropriate. Likewise, the term ``commercial
operator'' has been changed to refer to the type of operation, such as
``domestic operation,'' or to ``certificate holder.''
(2) References to an ``ATCO Operating Certificate'' have been
changed to ``Air Carrier Operating Certificate or Operating
Certificate.''
(3) References to ``Flight Standards District Office'' and
``District Office'' have been changed to ``certificate-holding district
office.''
(4) Language changes have been made for consistency and to
facilitate computer searches for certain terms; for example,
``principal operations base'' is changed to ``principal base of
operations.''
(5) Obsolete compliance dates have been removed. These dates were
originally included in the regulations as a convenience to give
certificate holders the schedule for complying with certain
regulations. Now that these dates are past, they are being removed.
(6) References to the operation of rotorcraft have been removed
from part 121 because, as a result of SFAR 38-2 and new part 119, all
rotorcraft operations are now conducted under part 135.
(7) Additionally, a correction is being made to Sec. 135.227(f)
concerning operations in icing conditions. When the agency inserted a
new paragraph (b) in Sec. 135.227 as part of the ground deicing final
rule, and agency neglected to update certain references in what is now
paragraph (f). This amendment corrects that oversight.
(8) The definition of ``scheduled operation'' is corrected to the
verbiage that appeared in the NPRM to eliminate a redundancy in the
language.
(9) Although the preamble states that section 119.58 is removed,
the final rule language contained that section. Therefore, section
119.58 is removed. Likewise, section 121.6 is removed for the same
reason.
(10) In the preamble to the final rule, the FAA states that section
119.71, requirements for the Director of Maintenance, requires 3 years
of experience within any amount of time; however the rule language for
that section reads ``3 years of experience within 3 years . . .'' in
both (e)(1) and (2). The FAA corrects the rule language to indicate
this.
Age 60 Rule
In the final rule published at 60 FR 65832, the delayed pilot age
limitation contained an error as to which pilots it applies. Section
121.2(i)(1) provides for delayed implementation of the Age 60 Rule
(Sec. 121.383(c)) for certain pilots. Section 121.2(i)(2) defined those
pilots as those employed by covered certificate holders ``on or before
March 20, 1997.'' The intent, however, was to include only those pilots
employed on March 20, 1997. See, for instance, the discussion in the
preamble at 60 FR 65843. Accordingly, the words ``or before'' are being
deleted from the rule.
In addition, the FAA has received questions about the applicability
of Sec. 121.2(i) to pilots employed by certificate holders with ``split
certificates.'' An air carrier with a ``split certificate'' in this
instance means an air carrier with authority to engage in both
operations that have in the past been under part 121 (and will continue
to be under part 121), and operations described in Sec. 121.2(a)(1)
(which have been under part 135 but will be under part 121 under the
new rule). Some people have asked whether a pilot who is employed by a
certificate holder with a ``split certificate'' on March 20, 1997, is
under the delayed compliance described in Sec. 121.2(i). The answer
depends on the type of operations in which the pilot is employed on
March 20, 1997. If the pilot is employed in operations described in
Sec. 121.2(a)(1) on that date, the pilot may serve as a pilot in such
operations until December 20, 1999. If the pilot is not employed in
such operations on March 20, 1997, the
[[Page 2609]]
pilot may not serve in Sec. 121.2(a)(1) operations after March 20,
1997. To clarify this, Sec. 121.2(i)(2) is being amended to provide
that the delayed compliance for the Age 60 Rule depends on the
operations in which the pilot is employed on March 20, 1997. In
addition, Sec. 121.2(i)(1) is being amended to provide that a pilot who
has reached the age of 60 may only be used in operations covered in
Sec. 121.2(a)(1).
There has been some confusion regarding the overall impact of the
delayed compliance date for the Age 60 Rule. The following discussion
should assist in understanding the rule.
The delayed compliance described in Sec. 121.2(i) applies only to
those operations described in Sec. 121.2(a)(1), which identifies those
commuter operations that were under part 135 and will transition to
part 121 rules (that is, the ``covered operations''). The application
of the Age 60 Rule to certificate holders who have in the past been
under part 121 is not affected.
On and before March 20, 1997, certificate holders may hire and use
pilots in covered operations regardless of age.
Starting on March 21, 1997, and through December 19, 1999, a
certificate holder may hire and use in covered operations only the
following pilots:
--persons who have not reached age 60;
--persons who, on March 20, 1997, were employed by that certificate
holder as pilots in covered operations, regardless of current age; and
--persons who, on March 20, 1997, were employed by another certificate
holder as pilots in covered operations, regardless of current age.
Starting on December 20, 1999, no pilots who have reached their
60th birthdays will be permitted in covered operations. As of that
date, all operations under part 121 will be fully in compliance with
the Age 60 Rule.
In addition, in the appendix to this amendment, the FAA republishes
four charts, Tables 1 through 4, contained in the final rule to correct
minor errors made during the publication process.
Federalism Implications
The regulations do not have substantial direct effects on the
states, on the relationship between the national government and the
states, or on the distribution of power and responsibilities among
various levels of government. Thus, in accordance with Executive Order
12612, it is determined that such a regulation does not have federalism
implications warranting the preparation of a Federalism Assessment.
Paperwork Reduction Act
The information collection requirements associated with this rule
have already been approved. There will be no increase or decrease in
paperwork requirements as a result of these amendments, since the
changes are completely editorial in nature.
Good Cause Justification for Immediate Adoption
This amendment is needed to conform parts 121 and 135 to the
terminology of new part 119. In view of the need to expedite these
changes, and because the amendment is editorial in nature and would
impose no additional burden on the public, I find that notice and
opportunity for public comment before adopting this amendment is
unnecessary.
Conclusion
The FAA has determined that this regulation imposes no additional
burden on any person. Accordingly, it has been determined that the
action: (1) is not a significant rule under Executive Order 12866; and
(2) is not a significant rule under Department of Transportation
Regulatory Policies and Procedures (44 FR 11034; February 26, 1979);
Also, because this regulation is of editorial nature, no impact is
expected to result and a full regulatory evaluation is not required. In
addition, the FAA certifies that the rule will not have a significant
economic impact, positive or negative, on a substantial number of small
entities under the criteria of the Regulatory Flexibility Act.
List of Subjects
14 CFR Part 119
Administrative practice and procedures, Air carriers, Air taxis,
Aircraft, Aviation safety, Charter flights, Commuter operations,
Reporting and recordkeeping requirements.
14 CFR part 121
Air carriers, Aircraft, Airmen, Aviation safety, Charter flights,
Reporting and recordkeeping requirements.
14 CFR part 135
Aircraft, Airplane, Airworthiness, Air transportation.
The Amendments
In consideration of the foregoing, the Federal Aviation
Administration amends the Federal Aviation Regulations (14 CFR parts
119, 121 and 135) as follows:
PART 119--CERTIFICATION: AIR CARRIERS AND COMMERCIAL OPERATORS
1. The authority citation for part 119 continues to read as
follows:
Authority: 49 U.S.C. 106(g), 1153, 40101, 40102, 40103, 44105,
44106, 44111, 44701-44717, 44722, 44901, 44903, 44904, 44906, 44912,
44914, 44936, 44938, 46103, 46105.
2. In section 119.3, the definition of ``scheduled operation'' is
revised to read as follows:
Sec. 119.3 Definitions.
* * * * *
Scheduled operation means any common carriage passenger-carrying
operation for compensation or hire conducted by an air carrier or
commercial operator for which the certificate holder or its
representative offers in advance the departure location, departure
time, and arrival location. It does not include any operation that is
charter operation.
* * * * *
3. Sec. 119.58 [Removed]
Section 119.58 is removed.
PART 121--OPERATING REQUIREMENTS: DOMESTIC, FLAG, AND SUPPLEMENTAL
OPERATIONS
4. The authority citation for part 121 continues to read as
follows:
Authority: 49 U.S.C. 106(g), 40113, 40119, 44101, 44701-44702,
44705, 44709-44711, 44713, 44716-44717, 44722, 44901, 44903-44904,
44912, 46105.
5. Section 121.2 is amended by revising paragraphs (d)(1)(i)
introductory text, (d)(2)(i) introductory text and (e)(1)(ii), and
paragraph (i) to read as follows:
Sec. 121.2 Compliance schedule for operators that transition to part
121; certain new entrant operators.
* * * * *
(d) * * *
(1) * * *
(i) December 20, 1997:
* * * * *
(2) * * *
(i) December 20, 1997:
* * * * *
(e) * * *
(1) * * *
(ii) Manufactured on or after December 20, 1997; Section
121.317(a), Fasten seat belt light.
* * * * *
(i) Delayed pilot age limitation. (1) Notwithstanding
Sec. 121.383(c), and except as provided in paragraph (i)(2) of this
section, a certificate holder may use the services of a person as a
pilot in
[[Page 2610]]
operations covered by paragraph (a)(1) of this section after that
person has reached his or her 60th birthday, until December 20, 1999.
Notwithstanding Sec. 121.383(c), and except as provided in paragraph
(i)(2) of this section, a person may serve as a pilot in operations
covered by paragraph (a)(1) of this section after that person has
reached his or her 60th birthday, until December 20, 1999.
(2) This paragraph applies only to persons who were employed as
pilots by a certificate holder in operations covered by paragraph
(a)(1) of this section on March 20, 1997.
6. Sec. 121.6 [Removed]
Section 121.6 is removed.
Subpart E--Approval of Routes: Domestic and Flag Operations
6. The heading for subpart E is revised to read as set forth above.
7. Section 121.91 is revised to read as follows:
Sec. 121.91 Applicability.
This subpart prescribes rules for obtaining approval of routes by
certificate holders conducting domestic or flag operations.
Sec. 121.93 [Amended]
8. Section 121.93 is amended in paragraph (a) by removing the words
``domestic or flag air carrier'' and adding, in their place, the words
``certificate holder conducting domestic or flag operations'' and in
paragraph (b) by removing the words ``air carrier'' and adding, in
their place, the words ``certificate holder.''
Sec. 121.95 [Amended]
9. Section 121.95 is amended in paragraph (a) by removing the words
``flag air carriers'' and adding, in their place, the words
``certificate holders conducting flag operations'' and in paragraph (b)
by removing the words ``air carrier's'' and adding, in their place, the
words ``certificate holder's.''
Sec. 121.97 [Amended]
10. Section 121.97 is amended in paragraphs (a) and (b) by removing
the words ``domestic and flag air carrier'' and adding, in their place,
the words ``certificate holder conducting domestic or flag operations''
and in paragraph (c) by removing the words ``Flight Standards District
Office'' and adding, in their place, the words ``certificate-holding
district office.'' This section is further amended in paragraph (b) by
removing from the beginning of the paragraph the words ``After
September 9, 1981,'' and capitalizing the following word.
11. Section 121.99 is revised to read as follows:
Sec. 121.99 Communications facilities.
Each certificate holder conducting domestic or flag operations must
show that a two-way air/ground radio communication system is available
at points that will ensure reliable and rapid communications, under
normal operating conditions, over the entire route (either direct or
via approved point-to-point circuits) between each airplane and the
appropriate dispatch office, and between each airplane and the
appropriate air traffic control unit. For all operations by certificate
holders conducting domestic operations and for certificate holders
conducting flag operations in the 48 contiguous States and the District
of Columbia, the communications systems between each airplane and the
dispatch office must be independent of any system operated by the
United States.
Sec. 121.101 [Amended]
12. Section 121.101 is amended in paragraphs (a) and (d) by
removing the words ``domestic and flag air carrier'' and adding, in
their place, the words ``certificate holder conducting domestic or flag
operations'' and in paragraphs (b), (c), and (e) by removing the words
``domestic or flag air carrier'' and adding, in their place, the words
``certificate holder conducting domestic or flag operations.'' This
section is further amended by removing the words ``by December 31,
1977,'' from the beginning of paragraph (d) and capitalizing the
following word, and by removing paragraph (e).
Sec. 121.103 [Amended]
13. Section 121.103 is amended in paragraph (a) by removing the
words ``domestic and flag air carrier'' and adding, in their place, the
words ``certificate holder conducting domestic or flag operations'' and
by removing the words ``air carrier's'' and adding, in their place, the
words ``certificate holder's.'' This section is further amended in
paragraph (b) by removing the words ``air carrier'' and adding, in
their place, the words ``certificate holder.''
14. Section 121.105 is revised to read as follows:
Sec. 121.105 Servicing and maintenance facilities.
Each certificate holder conducting domestic or flag operations must
show that competent personnel and adequate facilities and equipment
(including spare parts, supplies, and materials) are available at such
points along the certificate holder's route as are necessary for the
proper servicing, maintenance, and preventive maintenance of airplanes
and auxiliary equipment.
15. Section 121.107 is revised to read as follows:
Sec. 121.107 Dispatch centers.
Each certificate holder conducting domestic or flag operations must
show that it has enough dispatch centers, adequate for the operations
to be conducted, that are located at points necessary to ensure proper
operational control of each flight.
Subpart F--Approval of Areas and Routes for Supplemental Operations
16. The heading for subpart F is revised to read as set forth
above.
17. Section 121.111 is revised to read as follows:
Sec. 121.111 Applicability.
This subpart prescribes rules for obtaining approval of areas and
routes by certificate holders conducting supplemental operations.
Sec. 121.113 [Amended]
18. Section 121.113 is amended in paragraphs (a) and (b) by
removing the words ``supplemental air carrier or commercial operator''
and adding, in their place, ``certificate holder conducting
supplemental operations.'' This section is further amended in paragraph
(b) by removing the words ``air carrier or commercial operator'' and
adding, in their place the words ``certificate holder'' and by removing
the words ``air carrier's or commercial operator's'' and adding, in
their place, the words ``certificate holder's.''
Sec. 121.115 [Amended]
19. Section 121.115 is amended in paragraph (b) by removing the
words ``air carrier's or commercial operator's'' and adding, in their
place, the words ``certificate holder's.''
Sec. 121.117 [Amended]
20. Section 121.117 is amended in paragraph (a) by removing the
words ``supplemental air carrier or commercial operator'' and adding,
in their place, the words ``certificate holder conducting supplemental
operations;'' in paragraph (b) by removing the words ``supplemental air
carrier and commercial operator'' and adding, in their place, the words
``certificate holder conducting supplemental operations;'' and in
paragraph (c) by removing the words ``Flight Standards District
Office'' wherever they appear and adding, in their place, the words
``certificate-holding district office.'' This section is
[[Page 2611]]
further amended in paragraph (b) by removing ``After September 9,
1981,'' from the beginning of the paragraph and by capitalizing the
following word.
Sec. 121.119 [Amended]
21. Section 121.119 is amended in paragraphs (a) and (b) by
removing the words ``supplemental air carrier or commercial operator''
and adding, in their place, the words ``certificate holder conducting
supplemental operations'' and in paragraph (a) by removing the words
``air carrier or commercial operator'' and adding, in their place, the
words ``certificate holder.''
Sec. 121.121 [Amended]
22. Section 121.121 is amended in paragraph (a) by removing the
words ``supplemental air carrier or commercial operator'' and adding,
in their place, the words ``certificate holder conducting supplemental
operations'' and in paragraph (c) by removing the words ``air carrier's
or commercial operator's'' and adding, in their place, the words
``certificate holders.''
23. Section 121.123 is revised to read as follows:
Sec. 121.123 Servicing maintenance facilities.
Each certificate holder conducting supplemental operations must
show that competent personnel and adequate facilities and equipment
(including spare parts, supplies, and materials) are available for the
proper servicing, maintenance, and preventive maintenance of aircraft
and auxliary equipment.
Sec. 121.125 [Amended]
24. Section 121.125 is amended in paragraphs (a) and (b) by
removing the words ``supplemental air carrier or commercial operator''
and adding, in their place, the words ``certificate holder conducting
supplemental operations'' and in paragraph (d) by removing the words
``supplemental air carrier's or commercial operator's'' and adding, in
their place, the words ``certificate holder's.'' This section is
further amended in paragraph (b) by removing the words ``air carrier or
commercial operator'' and adding, in their place, the words
``certificate holder.''
Sec. 121.127 [Amended]
25. Section 121.127 is amended in paragraphs (a) and (b) by
removing the words ``supplemental air carrier or commercial operator''
and adding, in their place, the words ``certificate holder conducting
supplemental operations'' and in paragraph (a)(1)(ii) by removing the
words ``air carrier or commercial operator'' and adding, in their
place, the words ``certificate holder.''
Sec. 121.139 [Amended]
26. Section 121.139 is amended in the section heading by removing
the words ``supplemental air carriers and commercial operators'' and
adding, in their place, the words ``supplemental operations;'' in
paragraph (a) by removing the words ``supplemental air carrier and
commercial operator'' and adding, in their place, the words
``certificate holder conducting supplemental operations;'' and in
paragraph (b) by removing the words ``supplemental air carrier or
commercial operator'' and adding, in their place, the words
``certificate holder conducting supplemental operations.'' This section
is further amended in paragraph (a) by adding the words ``of
operations'' after the words ``principal base.''
27. Section 121.207 is revised to read as follows:
Sec. 121.207 Provisionally certificated airplanes: Operating
limitations.
In addition to the limitations in Sec. 91.317 of this chapter, the
following limitations apply to the operation of provisionally
certificated airplanes by certificate holders:
(a) In addition to crewmembers, each certificate holder may carry
on such an airplane only those persons who are listed in
Sec. 121.547(c) or who are specifically authorized by both the
certificate holder and the Administrator.
(b) Each certificate holder shall keep a log of each flight
conducted under this section and shall keep accurate and complete
records of each inspection made and all maintenance performed on the
airplane. The certificate holder shall make the log and records made
under this section available to the manufacturer and the Administrator.
28. Section 121.303 is amended by revising paragraph (d)(2) and
removing paragraph (d)(3) as follows:
Sec. 121.303 Airplane instruments and equipment.
* * * * *
(d) * * *
(2) Instruments and equipment specified in Secs. 121.305 through
121.321, 121.359, and 121.360 for all operations, and the instruments
and equipment specified in Secs. 121.323 through 121.351 for the kind
of operation indicated, wherever these items are not already required
by paragraph (d)(1) of this section.
Sec. 121.314 [Amended]
29. Section 121.314 is amended by removing the words ``After March
20, 1991,'' from the beginning of paragraph (a) and by capitalizing the
following word.
Sec. 121.319 [Amended]
30. Section 121.319 is amended by removing the words ``After
September 8, 1975'' from the beginning of paragraph (a) and by removing
the words ``After December 1, 1980,'' from the beginning of paragraph
(b)(1) and by capitalizing the following word.
Sec. 121.351 [Amended]
31. Section 121.351 is amended in paragraph (b) by removing the
words ``flag or supplemental air carrier or commercial operator'' and
adding, in their place, the words ``certificate holder conducting a
flag or supplemental operation or a domestic operation within the State
of Alaska.''
Sec. 121.373 [Amended]
32. Section 121.373 is amended in paragraph (c) by removing the
words ``Flight Standards District Office'' and adding, in their place,
the words ``certificate-holding district office.''
33. Section 121.385(c) is revised to read as follows:
Sec. 121.385 Composiiton of flight crew.
* * * * *
(c) The following minimum pilot crews apply:
(1) Domestic operations. If a certificate holder conducting
domestic operations is authorized to operate under IFR, or if it
operates large aircraft, the minimum pilot crew is two pilots and the
certificate holder shall designate one pilot as pilot in command and
the other second in command.
(2) Flag operations. If a certificate holder conducting flag
operations is authorized to operate under IFR, or if it operates large
aircraft, the minimum pilot crew is two pilots.
(3) Supplemental operations. If a certificate holder conducting
supplemental operations operates large aircraft, the minimum pilot crew
is two pilots and the certificate holder shall designate one pilot as
pilot in command and the other second in command.
* * * * *
34. Section 121.395 is revised to read as follows:
Sec. 121.395 Aircraft dispatcher: Domestic and flag operations.
Each certificate holder conducting domestic or flag operations
shall provide enough qualified aircraft dispatchers at each dispatch
center to ensure proper operational control of each flight.
Sec. 121.404 [Removed]
35. Section 121.404 is removed. (This removal supersedes the
revision published at 60 FR 65948 December 20, 1995.)
[[Page 2612]]
Sec. 121.405 [Amended]
36. Section 121.405 is amended in paragraph (e) by removing the
words ``FAA Flight Standards District Office charged with the overall
inspection of the certificate holder's operations'' and adding, in
their place, the words ``certificate-holding district office.''
Sec. 121.437 [Amended]
37. Section 121.437 is amended in paragraph (a) by removing the
words ``air carrier or commercial operator'' and in paragraph (c) by
removing the words ``After July 1, 1980,'' from the beginning,
capitalizing the following word, and removing the second sentence of
paragraph (c).
Sec. 121.440 [Amended]
38. Section 121.440 is amended in paragraph (b) by removing the
words ``air carrier pilots'' and adding, in their place, the word
``operations;'' in paragraph (b)(2) by removing the words ``air
carrier's'' and adding, in their place, the words ``certificate
holder's;'' and in paragraph (c) by removing the words ``air carrier
and commercial operators'' and adding, in their place, the word
``operations.''
Subpart P--Aircraft Dispatcher Qualifications and Duty Time
Limitations: Domestic and Flag Operations; Flight Attendant Duty Period
Limitations and Rest Requirements: Domestic, Flag, and Supplemental
Operations
39. The heading for subpart P is revised to read as set forth
above.
40. Section 121.461 is revised to read as follows:
Sec. 121.461 Applicability.
This subpart prescribes--
(a) Qualifications and duty time limitations for aircraft
dispatchers for certificate holders conducting domestic flag
operations; and
(b) Duty period limitations and rest requirements for flight
attendants used by certificate holders conducting domestic, flag, or
supplemental operations.
41. Section 121.465 is revised to read as follows:
Sec. 121.465 Aircraft dispatcher duty time limitations: Domestic and
flag operations.
(a) Each certificate holder conducting domestic or flag operations
shall establish the daily duty period for a dispatcher so that it
begins at a time that allows him or her to become thoroughly familiar
with existing and anticipated weather conditions along the route before
he or she dispatches any airplane. He or she shall remain on duty until
each airplane dispatched by him or her has completed its flight, or has
gone beyond his or her jurisdiction, or until he or she is relieved by
another qualified dispatcher.
(b) Except in cases where circumstances or emergency conditions
beyond the control of the certificate holder require otherwise--
(1) No certificate holder conducting domestic or flag operations
may schedule a dispatcher for more than 10 consecutive hours of duty;
(2) If a dispatcher is scheduled for more than 10 hours of duty in
24 consecutive hours, the certificate holder shall provide him or her a
rest period of at least eight hours at or before the end of 10 hours of
duty.
(3) Each dispatcher must be relieved of all duty with the
certificate holder for at least 24 consecutive hours during any seven
consecutive days or the equivalent thereof within any calendar month.
(c) Notwithstanding paragraphs (a) and (b) of this section, a
certificate holder conducting flag operations may, if authorized by the
Administrator, schedule an aircraft dispatcher at a duty station
outside of the 48 contiguous States and the District of Columbia, for
more than 10 consecutive hours of duty in a 24-hour period if that
aircraft dispatcher is relieved of all duty with the certificate holder
for at least eight hours during each 24-hour period.
Sec. 121.467 [Amended]
42. Section 121.467 is amended as follows:
a. In the section heading by removing the words ``air carriers and
commercial operators'' and adding, in their place, the word
``operations.''
b. In paragraphs (a), (b), and (c) by removing the words
``domestic, flag, or supplemental air carrier or commercial operator''
wherever they appear and adding, in their place, the words
``certificate holder conducting domestic, flag, or supplemental
operations.''
c. In paragraph (b) by removing the words ``air carrier or
commercial operator'' wherever they appear and adding, in their place,
the words ``certificate holder.''
d. In paragraph (b) by removing the words ``air carrier's or the
commercial operator's'' wherever they appear and adding, in their
place, the words ``certificate holder's.''
e. In paragraph (b)(11) by removing the words ``air carrier or
operator'' and adding, in their place, the words ``certificate
holder.''
f. In paragraph (b)(13) by removing the words ``domestic, flag, or
supplemental air carrier'' and adding, in their place, the words
``certificate holder conducting domestic, flag, or supplemental
operations.''
g. In paragraph (c)(2) by removing the words ``FAA Flight Standards
District Office that is charged with the overall inspection of the
certificate holder's operations'' and adding, in their place, the words
``certificate-holding district office.''
Subpart Q--Flight Time Limitations and Rest Requirements: Domestic
Operations
43. The heading for subpart Q is revised to read as set forth
above.
Sec. 121.471 [Amended]
44. Section 121.471 is amended in paragraphs (a), (b), (d), and (e)
by removing the words ``domestic air carrier'' and adding, in their
place, the words ``certificate holder conducting domestic operations''
and in paragraphs (c), (f) and (g) by removing the words ``air
carrier'' and adding, in their place, the words ``certificate holder.''
Subpart R--Flight Time Limitations: Flag Operations
45. The heading for subpart R is revised to read as set forth
above.
Sec. 121.481 [Amended]
46. Section 121.481 is amended in paragraphs (a) and (b) by
removing the words ``flag air carrier'' and adding, in their place, the
words ``certificate holder conducting flag operations'' and in
paragraphs (b) and (c) by removing the words ``air carrier'' and
adding, in their place, the words ``certificate holder.''
Sec. 121.483 [Amended]
47. Section 121.483 is amended in paragraph (a) by removing the
words ``flag air carrier'' and adding, in their place, the words
``certificate holder conducting flag operations.''
Sec. 121.485 [Amended]
48. Section 121.485 is amended in paragraphs (a) and (b) by
removing the words ``flag air carrier'' and adding, in their place, the
words ``certificate holder conducting flag operations.''
49. Section 121.489 is revised to read as follows:
Sec. 121.489 Flight time limitations: Other commercial flying.
No pilot that is employed as a pilot by a certificate holder
conducting flag operations may do any other commercial flying if that
commercial flying plus his flying in air transportation will exceed any
flight time limitation in this part.
[[Page 2613]]
Subpart S--Flight Time Limitations: Supplemental Operations
50. The heading for subpart S is revised to read as set forth
above.
Sec. 121.501 [Removed]
51. Section 121.501 is removed.
Sec. 121.503 [Amended]
52. Section 121.503 is amended in paragraph (a) by removing the
words ``supplemental air carrier or commercial operator'' and adding,
in their place, the words ``certificate holder conducting supplemental
operations;'' in paragraph (b) by removing the words ``air carrier or
commercial operator'' and adding, in their place, the words
``certificate holder;'' in paragraph (c) by removing the words
``supplemental air carrier and commercial operator'' and adding, in
their place, the words ``certificate holder conducting supplemental
operations;'' in paragraphs (d) and (e) by removing the words ``air
carrier service'' and adding, in their place, the words ``air
transportation;'' in paragraph (f) by removing the words ``an air
carrier'' and adding, in their place, the words ``the certificate
holder;'' and in paragraph (f)(3) by removing the words ``air carrier''
and adding, in their place, the words ``certificate holder.''
Sec. 121.505 [Amended]
53. Section 121.505 is amended in paragraph (a) by removing the
words ``supplemental air carrier or commercial operator'' wherever they
appear and adding, in their place, the words ``certificate holder
conducting supplemental operations.''
Sec. 121.507 [Amended]
54. Section 121.507 is amended in paragraph (a) by removing the
words ``supplemental air carrier or commercial operator'' and adding,
in their place, the words ``certificate holder conducting supplemental
operations.''
Sec. 121.509 [Amended]
55. Section 121.509 is amended in paragraph(a) by removing the
words ``supplemental air carrier or commercial operator'' and adding,
in their place, the words ``certificate holder conducting supplemental
operations.''
Sec. 121.513 [Amended]
56. Section 121.513 is amended in the introductory paragraph by
removing the words ``supplemental air carrier or commercial operator''
and adding, in their place, the words ``certificate holder conducting
supplemental operations.''
57. Section 121.517 is revised to read as follows:
Sec. 121.517 Flight time limitations: Other commercial flying:
airplanes.
No airman who is employed by a certificate holder conducting
supplemental operations may do any other commercial flying, if that
commercial flying plus his flying in operations under this part will
exceed any flight time limitation in this part.
Sec. 121.521 [Amended]
58. Section 121.521 is amended in paragraph (a) by removing the
words ``supplemental air carrier or commerical operator'' and adding,
in their place, the words ``certificate holder conducting supplemental
operations'' and in paragraph (b) by removing the words ``air carrier
or commercial operator'' and adding, in their place, the words
``certificate holder.''
Sec. 121.523 [Amended]
59. Section 121.523 is amended in paragraphs (a) and (c) by
removing the words ``supplemental air carrier or commercial operator''
and adding, in their place, the words ``certificate holder conducting
supplemental operations;'' and in paragraphs (b) and (e) by removing
the words ``supplemental air carrier and commercial operator'' and
adding, in their place, the words ``certificate holder conducting
supplemental operations.''
Sec. 121.533 [Amended]
60. Section 121.531 is amended in the section heading by removing
the words ``domestic air carriers'' and adding, in their place, the
words ``domestic operations'' and in paragraph (a) by removing the
words ``domestic air carrier'' and adding, in their place, the words
``certificate holder conducting domestic operations.''
Sec. 121.535 [Amended]
61. Section 121.535 is amended in the section heading by removing
the words ``flag air carriers'' and adding, in their place, the words
``flag operations'' and in paragraph (a) by removing the words ``flag
air carrier'' and adding, in their place, the words ``certificate
holder conducting flag operations.''
Sec. 121.537 [Amended]
62. Section 121.537 is amended in the section heading by removing
the words ``supplemental air carriers and commercial operators'' and
adding, in their place, the words ``supplemental operations'' and in
paragraph (a) by removing the words ``supplemental air carrier and
commercial operators'' and adding, in their place, the words
``certificate holder conducting supplemental operations.''
63. Section 121.541 is revised to read as follows:
Sec. 121.541 Operations schedules: Domestic and flag operations.
In establishing flight operations schedules, each certificate
holder conducting domestic or flag operations shall allow enough time
for the proper servicing of aircraft at intermediate stops, and shall
consider the prevailing winds en route and the cruising speed of the
type of aircraft used. This cruising speed may not be more than that
resulting from the specified cruising output of the engines.
Sec. 121.547 [Amended]
64. Section 121.547(c)(4) is amended by removing the word
``carrier'' and adding, in its place, the words ``certificate holder.''
65. Section 121.548 is revised to read as follows:
Sec. 121.548 Aviation safety inspector's credentials: Admission to
pilot's compartment.
Whenever, in performing the duties of conducting an inspection, an
inspector of the Federal Aviation Administration presents form FAA
110A, ``Aviation Safety Inspector's Credential,'' to the pilot in
command of an aircraft operated by a certificate holder, the inspector
must be given free and uninterrupted access to the pilot's compartment
of that aircraft.
Sec. 121.550 [Amended]
66. Section 121.550 is amended by removing the words ``an air
carrier or commercial operator'' and adding, in their place, the words
``a certificate holder.''
67. Section 121.551 is revised to read as follows:
Sec. 121.551 Restriction or suspension of operation: Domestic and flag
operations.
When a certificate holder conducting domestic or flag operations
knows of conditions, including airport and runway conditions, that are
a hazard to safe operations, it shall restrict or suspend operations
until those conditions are corrected.
68. Section 121.553 is revised to read as follows:
Sec. 121.553 Restriction or suspension of operation: Supplemental
operations.
When a certificate holder conducting supplemental operations or
pilot in command knows of conditions, including airport and runway
conditions, that are a hazard to safe operations, the certificate
holder or pilot in command, as the case may be, shall restrict or
suspend operations until those conditions are corrected.
[[Page 2614]]
Sec. 121.555 [Amended]
69. Section 121.555 is amended in the section heading by removing
the words ``air carriers'' and adding, in their place, the word
``operations'' and in paragraph (a) by removing the words ``domestic or
flag air carrier's'' and adding, in their place, the words
``certificate holder's.''
Sec. 121.557 [Amended]
70. Section 121.557 is amended in the section heading by removing
the words ``air carriers'' and adding, in their place, the word
``operations;'' and in paragraph (c) by removing the words ``air
carrier's'' and adding, in their place, the words ``certificate
holder's.''
Sec. 121.559 [Amended]
71. Section 121,559 is amended in the section heading by removing
the words ``air carriers and commercial operators'' and adding, in
their place, the word ``operations;'' and in paragraph (c) by removing
the words ``air carrier's or commercial operator's'' and adding, in
their place, the words ``certificate holder's.''
72. Section 121.565 is amended by revising paragraph (d) to read as
follows:
Sec. 121.565 Engine inoperative: Landing; reporting.
* * * * *
(d) If the pilot in command lands at an airport other than the
nearest suitable airport, in point of time, he or she shall (upon
completing the trip) send a written report, in duplicate, to his or her
director of operations stating the reasons for determining that the
selection of an airport, other than the nearest airport, was as safe a
course of action as landing at the nearest suitable airport. The
director of operations shall, within 10 days after the pilot returns to
his or her home base, send a copy of this report with the director of
operation's comments to the certificate-holding district office.
Sec. 121.569 [Amended]
73. Section 121.569 is amended in the section heading by removing
the words ``air carriers'' and adding, in their place, the word
``operations;'' in paragraph (a) and (b) by removing the words
``domestic and flag air carrier'' and adding, in their place, the words
``certificate holder conducting domestic or flag operations;'' and in
paragraph (a)(5) by removing the words ``air carrier'' wherever they
appear and adding, in their place, the words ``certificate holder.''
Sec. 121.583 [Amended]
74. Section 121.583(d) is amended by removing the words ``air
carrier's or commercial operator's'' and adding, in their place, the
words ``certificate holder's.''
75. Section 121.585 is amended by revising paragraph (n)(2) to read
as follows:
Sec. 121.585 Exit seating.
* * * * *
(n) * * *
(2) Submit their procedures for preliminary review and approval to
the principal operations inspectors assigned to them at the
certificate-holding district office.
* * * * *
76. Section 121.586 is amended in paragraphs (b) and (c) by
removing the words ``FAA Flight Standards District Office charged with
the overall inspection of its operations'' and adding, in their place,
the words ``certificate-holding district office.''
77. Section 121.591 is revised to read as follows:
Sec. 121.591 Applicability.
This subpart prescribes dispatching rules for domestic and flag
operations and flight release rules for supplemental operations.
Sec. 121.593 [Amended]
78. Section 121.593 is amended in the section heading by removing
the words ``air carriers'' and adding, in their place, the word
``operations.''
Sec. 121.595 [Amended]
79. Section 121.595 is amended in the section heading by removing
the words ``air carriers'' and adding, in their place, the word
``operations.''
Sec. 121.597 [Amended]
80. Section 121.597 is amended in the section heading by removing
the words ``air carriers and commercial operators'' and adding, in
their place, the word ``operations.''
Sec. 121.599 [Amended]
81. Section 121.599 is amended in paragraph (a) by removing the
words ``air carriers'' and adding, in their place, the word
``operations'' and in paragraph (b) by removing the words ``air
carriers and commercial operators'' and adding, in their place, the
word ``operations.''
Sec. 121.601 [Amended]
82. Section 121.601 is amended in the section heading by removing
the words ``air carriers'' and adding, in their place, the word
``operations'' and in paragraphs (b) and (c) by removing the words ``by
December 31, 1977.''
Sec. 121.603 [Amended]
83. Section 121.603 is amended in the section heading by removing
the words ``air carriers and commercial operators'' and adding, in
their place, the word ``operations.''
Sec. 121.607 [Amended]
84. Section 121.607 is amended in the section heading by removing
the words ``air carriers'' and adding, in their place, the word
``operations;'' in paragraph (a) by removing the words ``flag air
carriers'' and adding, in their place, the words ``a certificate holder
conducting flag operations;'' in paragraph (b) by removing the words
``flag air carrier'' and adding, in their place, the words
``certificate holder conducting flag operations;'' and in paragraph (b)
by removing the words ``the air carrier'' and adding, in their place,
the words ``the certificate holder.''
Sec. 121.609 [Amended]
85. Section 121.609 is amended in the section heading by removing
the words ``air carriers and commercial operators'' and adding, in
their place, the word ``operations.''
Sec. 121.615 [Amended]
86. Section 121.615 is amended in the section heading by removing
the words ``air carriers and commercial operators'' and adding, in
their place, the word ``operations'' and in paragraphs (b) and (c) by
removing the words ``flag and supplemental air carrier and commercial
operator'' and adding, in their place, the words ``certificate holder
conducting a flag or supplemental operation or a domestic operation
within the State of Alaska.'' This section is further amended in
paragraph (d) by removing the words ``air carrier's or commercial
operator's'' and adding, in their place, the words ``certificate
holder's.''
Sec. 121.619 [Amended]
87. Section 121.619 is amended in the section heading by removing
the words ``air carriers'' and adding, in their place, the word
``operations.''
Sec. 121.621 [Amended]
88. Section 121.621 is amended in the section heading by removing
the words ``air carriers'' and adding, in their place, the word
``operations'' and in paragraph (b) by removing the words ``air
carrier's'' and adding, in their place, the words ``certificate
holder's.''
Sec. 121.623 [Amended]
89. Section 121.623 is amended in the section heading by removing
the words ``air carriers and commercial operators'' and adding, in
their place, the word ``operations'' and in paragraph (c) by removing
the words ``air carrier's or commercial operator's'' and adding, in
[[Page 2615]]
their place, the words ``certificate holder's.''
Sec. 121.627 [Amended]
90. Section 121.627(a) is amended by removing the words ``air
carriers'' and adding, in their place, the word ``operations.''
Sec. 121.628 [Amended]
91. Section 121.628 is amended in paragraph (a)(2) by removing the
words ``Flight Standards District Office having certification
responsibility'' and adding, in their place, the words ``certificate-
holding district office.''
Sec. 121.629 [Amended]
92. Section 121.629 is amended in paragraph (a) by removing the
words ``air carriers'' and adding, in their place, the word
``operations.''
Sec. 121.635 [Amended]
93. Section 121.635 is amended in the section heading by removing
the words ``air carriers'' and adding, in their place, the word
``operations.''
Sec. 121.637 [Amended]
94. Section 121.637 is amended in the section heading by removing
the words ``air carriers'' and adding, in their place, the word
``operations'' and in paragraph (b) by removing the words ``air
carrier's'' and adding, in their place, the words ``certificate
holder's.''
Sec. 121.641 [Amended]
95. Section 121.641 is amended in the section heading by removing
the words ``air carriers'' and adding, in their place, the word
``operations.''
Sec. 121.643 [Amended]
96. Section 121.643 is amended in the section heading by removing
the words ``air carriers and commercial operators'' and adding, in
their place, the word ``operations.''
Sec. 121.645 [Amended]
97. Section 121.645 is amended in the section heading by removing
the words ``air carriers and commercial operators'' and adding, in
their place, the word ``operations;'' in paragraph (a) by removing the
words ``air carrier;'' in paragraph (b) by removing the words ``flag
air carrier, supplemental air carrier, or commercial operator
operation'' and adding, in their place, the words ``certificate holder
conducting flag or supplemental operations.'' This section is further
amended in paragraph (d) by removing the words ``flag or supplemental
air carrier or commercial operator'' and adding, in their place, the
words ``certificate holder conducting flag or supplemental
operations;'' and in paragraph (e) by removing the words ``air carrier
or commercial operator.''
Sec. 121.649 [Amended]
98. Section 121.649 is amended in the section heading by removing
the words ``air carriers'' and adding, in their place, the word
``operations.''
Sec. 121.652 [Amended']
99. Section 121.652(a) is amended by removing the words ``an air
taxi operator certificated under Sec. 135.2 of this chapter,'' and
adding, in their place, the words ``a certificate holder conducting
operations in large aircraft under part 135 of this chapter.''
Sec. 121.657 [Amended]
100. Section 121.657 is amended in paragraph (a) by removing the
words ``air carrier or commercial operator's'' and adding, in their
place, the words ``certificate holder's'' and in paragraph (b) by
removing the words ``domestic air carrier'' and adding, in their place,
the words ``certificate holder conducting domestic operations.'' This
section is further amended in paragraph (b) by removing the words
``flag or supplemental air carrier or commercial operator'' and adding,
in their place, the words ``certificate holder conducting flag or
supplemental operations.''
Sec. 121.659 [Amended]
101. Section 121.659 is amended in the section heading by removing
the words ``air carriers and commercial operators'' and adding, in
their place, the word ``operations.''
Sec. 121.661 [Amended]
102. Section 121.661 is amended in the section heading by removing
the words ``air carriers'' and adding, in their place, the word
``operations.''
103. Section 121.663 is revised to read as follows:
Sec. 121.663 Responsibility for dispatch release: Domestic and flag
operations.
Each certificate holder conducting domestic or flag operations
shall prepare a dispatch release for each flight between specified
points, based on information furnished by an authorized aircraft
dispatcher. The pilot in command and an authorized aircraft dispatcher
shall sign the release only if they both believe that the flight can be
made with safety. The aircraft dispatcher may delegate authority to
sign a release for a particular flight, but he may not delegate his
authority to dispatch.
Sec. 121.667 [Amended]
104. Section 121.667 is amended in the section heading by removing
the words ``air carriers and commercial operators'' and adding, in
their place, the word ``operations.''
105. Section 121.683 is amended in paragraph (a)(1) and (a)(2) by
removing the words ``air carriers'' and adding, in their place, the
word ``operations'' and by revising paragraph (b) to read as follows:
Sec. 121.683 Crewmember and dispatcher record.
* * * * *
(b) Each certificate holder conducting supplemental operations
shall maintain the records required by paragraph (a) of this section at
its principal base of operations, or at another location used by it and
approved by the Administrator.
* * * * *
106. Section 121.685 is revised to read as follows:
Sec. 121.685 Aircraft record: Domestic and flag operations.
Each certificate holder conducting domestic or flag operations
shall maintain a current list of each aircraft that it operates in
scheduled air transportation and shall send a copy of the record and
each change to the certificate-holding district office. Airplanes of
another certificate holder operated under an interchange agreement may
be incorporated by reference.
Sec. 121.687 [Amended]
107. Section 121.687 is amended in the section heading by removing
the words ``air carriers'' and adding, in their place, the word
``operations''.
108. Section 121.689 is amended by revising the section heading and
by revising paragraph (c) to read as follows:
Sec. 121.689 Flight release form: Supplemental operations.
* * * * *
(c) Each certificate holder conducting domestic or flag operations
under the rules of this part applicable to supplemental operations
shall comply with the dispatch or flight release forms required for
scheduled operations under this subpart.
Sec. 121.693 [Amended]
109. Section 121.693 is amended in the section heading by removing
the words ``air carriers and commercial operators'' and adding, in
their place, the words ``All certificate holders'' and in paragraph (e)
by removing the words ``air carrier or commercial operator'' and
adding, in their place, the words ``certificate holder.''
[[Page 2616]]
Sec. 121.695 [Amended]
110. Section 121.695 is amended in the section heading by removing
the words ``air carriers'' and adding, in their place, the word
``operations'' and in paragraph (b) by removing the words ``air
carrier'' and adding, in their place, the words ``certificate holder.''
111. Section 121.697 is amended by revising the section heading and
by revising paragraphs (b), (c), (d), and (e) to read as follows:
Sec. 121.697 Disposition of load manifest, flight release, and flight
plans: Supplemental operations.
* * * * *
(b) If a flight originates at the certificate holder's principal
base of operations, it shall retain at that base a signed copy of each
document listed in paragraph (a) of this section.
(c) Except as provided in paragraph (d) of this section, if a
flight originates at a place other than the certificate holder's
principal base of operations, the pilot in command (or another person
not aboard the airplane who is authorized by the certificate holder)
shall, before or immediately after departure of the flight, mail signed
copies of the documents listed in paragraph (a) of this section, to the
principal base of operations.
(d) If a flight originates at a place other than the certificate
holder's principal base of operations, and there is at that place a
person to manage the flight departure for the certificate holder who
does not himself or herself depart on the airplane, signed copies of
the documents listed in paragraph (a) of this section may be retained
at that place for not more than 30 days before being sent to the
certificate holder's principal base of operations. However, the
documents for a particular flight need not be further retained at that
place or be sent to the principal base of operations, if the originals
or other copies of them have been previously returned to the principal
base of operations.
(e) The certificate holder conducting supplemental operations
shall:
(1) Identify in its operations manual the person having custody of
the copies of documents retained in accordance with paragraph (d) of
this section; and
(2) Retain at its principal base of operations either an original
or a copy of the records required by this section for at least three
months.
112. Section 121.711 is revised to read as follows:
Sec. 121.711 Communication records: Domestic and flag operations.
Each certificate holder conducting domestic or flag operations
shall record each en route radio contact between the certificate holder
and its pilots and shall keep that record for at least 30 days.
Sec. 121.721 Applicability.
113. Section 121.721 is amended by removing the words ``air
carriers or commercial operators'' and adding, in their place, the
words ``certificate holders.''
Sec. 121.723 [Amended]
114. Section 121.723 is amended in paragraph (b) by removing the
words ``air carrier or commercial operator'' and adding, in their
place, the words ``certificate holder'' and by removing the words
``carrier or operator'' and adding, in their place, the words
``certificate holder.''
PART 135--OPERATING REQUIREMENTS: COMMUTER AND ON-DEMAND OPERATIONS
115. The authority citation for part 135 is revised to read as
follows:
Authority: 49 U.S.C. 106(g), 44113, 44701, 44702, 44705, 44709,
44711-44713, 44715-44717, 44722.
135.10 [Removed]
116. Section 135.10 is removed.
Sec. 135.91 [Amended]
116a. Section 135.91 is amended in paragraph (e) by removing the
words ``FAA Flight Standards District Office charged with the overall
inspection of the certificate holder'' and adding, in their place, the
words ``certificate-holding district office.''
Sec. 135.127 [Amended]
117. Section 135.127 is amended in paragraph (d) by removing from
the beginning of the paragraph the words ``After December 31, 1988,''
and capitalizing the following word.
118. Section 135.129 is amended by revising paragraph (n)(2) to
read as follows:
Sec. 135.129 Exit seating.
* * * * *
(n) * * *
(2) Submit their procedures for preliminary review and approval to
the principal operations inspectors assigned to them at the
certificate-holding district office.
* * * * *
Sec. 135.151 [Amended]
119. Section 135.151 is amended in paragraph (a) and (b) by
removing from the beginning of each paragraph the words ``After October
11, 1991,'' and capitalizing the following word.
Sec. 135.153 [Amended]
120. Section 135.153 is amended in paragraph (a) by removing the
words ``after April 20, 1994,''.
Sec. 135.173 [Amended]
121. Section 135.173 is amended in paragraph (b) by removing from
the beginning of the paragraph the words ``After January 6, 1988,'' and
capitalizing the following words.
Sec. 135.179 [Amended]
122. Section 135.179 is amended in paragraph (a)(2) by removing the
words ``Flight Standards District Office having certification
responsibility'' and adding, in their place, the words ``certificate-
holding district office.''
Sec. 135.213 [Amended]
123. Section 135.213 is amended in paragraph (b) by removing the
words ``FAA Flight Standards District Office charged with the overall
inspection of the certificate holder'' and adding, in their place, the
words ``certificate-holding district office'' and by removing the words
``ATCO operating certificate'' and adding, in their place, the words
``air carrier operating certificate or operating certificate.''
124. Section 135.227 is amended by revising paragraph (f) to read
as follows:
Sec. 135.227 Icing conditions: Operating limitations.
* * * * *
(f) If current weather reports and briefing information relied upon
by the pilot in command indicate that the forecast icing condition that
would otherwise prohibit the flight will not be encountered during the
flight because of changed weather conditions since the forecast, the
restrictions in paragraphs (c), (d), and (e) of this section based on
forecast conditions do not apply.
Sec. 135.267 [Amended]
125. Section 135.267 is amended by removing paragraph (g).
Sec. 135.273 [Amended]
126. Section 135.273 is amended in paragraph (c)(2) by removing the
words ``FAA Flight Standards District Office that is charged with the
overall inspection of the certificate holder's operations'' and adding,
in their place, the words ``certificate-holding district office.''
Sec. 135.417 [Amended]
127. Section 135.417 is amended in the introductory paragraph by
removing the words ``FAA Flight Standards District Office charged with
the overall inspection of the certificate holder'' and
[[Page 2617]]
adding, in their place, the words ``certificate-holding district
office.''
Sec. 135.431 [Amended]
128. Section 135.431 is amended in paragraph (c) by removing the
words ``FAA Flight Standards District Office charged with the overall
inspection of the certificate holder'' and adding, in their place, the
words ``certificate-holding district office.''
Issued in Washington, D.C., on January 17, 1996.
Donald P. Byrne,
Assistant Chief Counsel for Regulations, Office of the Chief Counsel.
Appendix--Tables 1-4
Note: This appendix will not appear in the Code of Federal
Regulations. This appendix corrects and republishes tables 1 through
4, which were published December 20, 1995, 60 FR 65849, 65851,
65888, and 65892.
Table 1.--Summary of New Equipment and Performance Modifications for Affected Commuters
--------------------------------------------------------------------------------------------------------------------------------------------------------
Upgrade will apply to all airplanes including
Effective date of required upgrade is as stated, measured from the rule newly manufactured airplanes Upgrade will apply to all
publication date: Issue/Requirement ------------------------------------------------- newly manufactured
Within 15 months Within years (#) airplanes: after years (#)
--------------------------------------------------------------------------------------------------------------------------------------------------------
1. Passenger Seat Cushion Flammability, 10-19 Pax
Secs. 121.2, 121.312(c) ............................ 15 ...........................
2. Lavatory Fire Protection, 10-30 Pax
Secs. 121.2, 121.308 ............................ 2 ...........................
3. Exterior Emergency Exit Markings, 10-19 Pax
Sec. 121.310(g) YES......................... ................. ...........................
4. Pitot Heat Indication System, 10-19 Pax
Secs. 121.2, 121.342 ............................ 4 ...........................
5. Landing Gear Aural Warning, 10-19 Pax
Secs. 121.2, 121.289 ............................ 2 ...........................
6. Takeoff Warning System, 10-19 Pax
Secs. 121.2, 121.293 ............................ ................. 4.
7. Emergency Exit Handle Illumination, 10-19 Pax
Secs. 121.2, 121.310(e)(2) ............................ 2 ...........................
8. First Aid Kits, 10-19 Pax
Sec. 121.309(d)(1)(i) YES......................... ................. ...........................
9. Emergency Medical Kits, 20-30 Pax
Sec. 121.309(d)(1)(ii) YES......................... ................. ...........................
10. Wing Ice Light, 10-19 Pax
Sec. 121.341(b) YES......................... ................. ...........................
11. Fasten Seat Belt Light and Placards, 10-19 Pax
Secs. 121.2, 121.317 YES \1\..................... ................. 2\1\.
12. Third Attitude Indicator, 10-30 Pax:
Turbojet YES \2\..................... ................. ...........................
Turboprop ............................ \2\15 15 months \2\.
Secs. 121.2, 121.305(j) ............................ .................
13. Airborne Weather Radar, 10-19 Pax
Sec. 121.357 YES......................... ................. ...........................
14. Protective Breathing Equipment, 10-30 Pax
Sec. 121.2
Sec. 121.337(b)(8)--Smoke and fume protection
Sec. 121.337(b)(9)--Fire fighting (20-30 only) ............................ 2 ...........................
15. Safety Belts and Shoulder Harnesses, Single point inertial harness, 10-
19 Pax
Secs. 121.2, 121.311(f) ............................ ................. 15 months.
16. Cabin Ozone Concentration, 10-30 Pax
Sec. 121.578 YES......................... ................. ...........................
17. Retention of Galley Equipment, 10-30 Pax
Secs. 121.576, 121.577 YES......................... ................. ...........................
18. Ditching approval, 10-30 Pax
Secs. 121.2, 121.161(b) YES \3\..................... \3\15 ...........................
19. Flotation means, 10-30 Pax
Secs. 121.2, 121.340 ............................ 2 ...........................
20. Door Key and Locking Door, 20-30 Pax
Sec. 121.313(f) & (g) YES......................... ................. ...........................
21. Portable O2, 20-30 Pax
Secs. 121.327-121.335 YES......................... ................. ...........................
22. Additional life rafts, 10-30 Pax
Sec. 121.339 YES......................... ................. ...........................
23. First Aid Oxygen, 20-30 Pax
Sec. 121.333(e)(3) YES......................... ................. ...........................
24. Enroute radio communications, 10-30 Pax
Sec. 121.99 YES......................... ................. ...........................
25. Latex gloves, 10-30 Pax
Sec. 121.309(d)(2) YES......................... ................. ...........................
26. Passenger information cards, 20-30 Pax
Sec. 121.571(b) YES......................... ................. ...........................
[[Page 2618]]
27. Flashlights--additional for flight attendant and pilot, 10-30 Pax
Sec. 121.549(b) YES......................... ................. ...........................
28. Flashlight holder for flight attendant, 20-30 Pax
Sec. 121.310(l) YES......................... ................. ...........................
29. DME, 10-30 Pax
Sec. 121.349(c) YES......................... ................. ...........................
30. Single engine cruise performance data, 10-30 Pax (required for
determining alternates)
Sec. 121.617 YES......................... ................. ...........................
31. Performance, obstruction clearance, and accelerate-stop requirements,
10-19 Pax
Secs. 121.2, 121.157, 121.173(b), 121.189(c) YES\4\...................... \4\15 ...........................
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ In-service airplanes
FR Doc. 96-947 Operating Requirements: Domestic, Flag, Supplemental, Commuter, and On-Demand Operations: Editorial and Terminology Changes
must comply within 15 months. They may use lights or placards. Newly manufactured airplanes must comply with seat belt sign
requirements of Sec. 121.317(a) within 2 years.
\2\ Turbojet airplanes must comply within 15 months. Newly manufactured turboprop airplanes must comply within 15 months. In-service 10-30 pax turboprop
airplanes must comply within 15 years.
\3\ Transport category must comply within 15 months. Nontransport category can operate for 15 years without ditching approval.
\4\ Commuter category airplanes must comply within 15 months. SFAR 41 and predecessor category airplanes must comply within 15 years.
Table 2.--Comparable Sections in Parts 121 and 135
[This table shows the comparable sections in parts 121 and 135 by issue. Affected commuters, however, must comply with all sections in part 121 that are
applicable to their operations, not just the ones listed in this table or discussed in this preamble.]
--------------------------------------------------------------------------------------------------------------------------------------------------------
Subject 135 Section 121 Section
--------------------------------------------------------------------------------------------------------------------------------------------------------
Subparts E and F--Approval of Routes: Domestic, 135.213.......................................... 121.97
Flag, and Supplemental Operations. 121.99
121.101
121.107
Subpart G--Manual Requirements:
Contents and personnel........................ 135.21, .23...................................... 121.133, .135, 121.137
Airplane flight manual........................ ................................................. 121.141
Subpart I--Airplane Performance Operating 135.365-.387..................................... 121.175-.197
Limitations.
Subpart J--Special Airworthiness Requirements..... ................................................. 121.217
--Internal doors.............................. 135.87........................................... 121.285
--Cargo carried in the passenger compartment.. 135 APP A........................................ 121.289
--Landing gear aural warning device........... ................................................. 121.291
--Emergency evacuation and ditching ................................................. .................................................
demonstration.
--New special airworthiness requirements ................................................. 121.293(a) (new)
(retrofit) and requirements applicable to
future manufactured airplanes.
--Ditching emergency exits.................... ................................................. 121.293(b) (new)
--Takeoff warning system...................... ................................................. .................................................
Subpart K--Instrument and Equipment Requirements:
--Third attitude indictor..................... ................................................. .................................................
--Lavatory fire protection.................... 135.149, 135.163 (a), (h)........................ 121.305(j)
--Emergency equipment inspection.............. ................................................. 121.308
--Hand-held fire extinguishers................ 135.177(b)....................................... 121.309(b)
--First aid kits and medical kits............. 135.155.......................................... 121.309(c)
--Crash ax.................................... 135.177(a)(1).................................... 121.309(d)
--Emergency evacuation lighting and marking 135.177(a)(2).................................... 121.309(e)
requirements. 135.178(c)-(h)................................... 121.310(c)-(h)
--Seatbacks................................... ................................................. .................................................
--Seatbelt and shoulder harnesses on the 135.117.......................................... 121.311(e)
flight deck. 121.311(f)
--Interior materials and passenger seat 135.169(a)....................................... 121.312(b)
cushion flammability.
--Miscellaneous equipment..................... ................................................. 121.313 (c), (f), (g)
--Cockpit and door keys....................... ................................................. 121.313(f), 121.587
--Cargo and baggage compartments.............. ................................................. .................................................
--Fuel tank access covers..................... ................................................. 121.314, .221
--Passenger information....................... ................................................. 121.316
--Instruments and equipment for operations at 135.127.......................................... 121.317
night. 121.323
--Oxygen requirements......................... ................................................. .................................................
--Portable oxygen for flight attendants....... 135.157.......................................... 121.327-.335
121.333(d)
--Protective breathing equipment (PBE)........ ................................................. 121.337
--Additional life rafts for extended 135.167.......................................... 121.339
underwater operations.
--Flotation devices........................... ................................................. .................................................
[[Page 2619]]
--Pitot heat indication system................ ................................................. 121.340
--Radio equipment............................. 135.158.......................................... 121.342
--Emergency equipment for operations over 135.161.......................................... 121.345-.351
uninhabited terrain. 135.177, .178.................................... 121.353
--TCAS........................................ ................................................. .................................................
--Flight data recorders....................... 135.180.......................................... 121.356
--Airborne weather radar...................... 135.152(a), (b).................................. 121.343
--Cockpit voice recorders..................... 135.173, .175.................................... 121.357
--Low-altitude windshear systems.............. 135.151.......................................... 121.359
--Ground proximity warning system (GPWS)...... 135.153.......................................... 121.358
Subpart L--Maintenance, Preventive Maintenance,
and Alterations:
--Applicability............................... 135.411(a)(2).................................... 121.361
--Responsibility for Airworthiness............ 135.413.......................................... 121.363
--Maintenance, preventive maintenance, and 135.423, .425.................................... 121.365, .367
alteration organization.
--Manual requirements......................... 135.427.......................................... 121.369
--Required inspection personnel............... 135.429.......................................... 121.371
--Continuing analysis and surveillance........ 135.431.......................................... 121.373
--Maintenance and preventative maintenance 135.433.......................................... 121.375
training programs.
--Maintenance and preventive maintenance ................................................. 121.377
personnel duty time limitations.
--Certificate requirements.................... 135.435.......................................... 121.378
--Authority to perform and approve 135.437.......................................... 121.379
maintenance, preventive maintenance, and
alterations.
--Maintenance recording requirements.......... 135.439(a)(2).................................... 121.380(a)(2)
--Transfer of maintenance records............. 135.441.......................................... 121.380a
Subpart M--Airman and Crewmember Requirements:
--Flight attendant complement................. 135.107.......................................... 121.391
--Flight attendants being seated during 135.128(a)....................................... 121.391(d)
movement on the surface.
--Flight attendants or other qualified ................................................. 121.391(e), 121.417, 121.393 (new)
personnel at the gate.
Subparts N and O--Training Program and Crewmember ................................................. 121.400-121.459
Requirements.
Subpart P--Aircraft Dispatcher Qualifications and ................................................. 121.461-121.467
Duty Time Limitations: Domestic and Flag Air
Carriers.
Subparts Q, R, and S--Flight Time Limitations and 135.261-135.273.................................. 121.470-121.525
Rest Requirements: Domestic, Flag, and
Supplemental Operations.
Subpart T--Flight Operations:
--Operational control......................... 135.77, .79...................................... 121.533, .535, 121.537
--Admission to the flight deck................ 135.75........................................... 121.547
--Emergency procedures........................ 135.69, .19...................................... 121.551, .553, 121.557, .559 121.565 (new)
--Passenger information....................... 135.117, .127.................................... 121.571(a), 121.533, .573, 121.585
--Oxygen for medical use by passengers........ 135.91(d)........................................ 121.574
--Alcoholic beverages......................... 135.121.......................................... 121.575
--Retention of items of mass.................. 135.87, .122..................................... 121.577
--Cabin ozone concentration................... ................................................. 121.578(b)
--Minimum altitudes for use of autopilot...... 135.93........................................... 121.579
--Forward observer's seat..................... 135.75........................................... 121.581
--Authority to refuse transportation.......... 135.23(q)........................................ 121.586
--Carry-on baggage............................ 135.87........................................... 121.589
--Airports.................................... 135.229, .217.................................... 121.590, 121.617(a)
Subpart U--Dispatching and Flight Release Rules:
--Flight release authority.................... ................................................. 121.597
--Dispatch or flight release under VFR........ 135.211.......................................... 121.611
--Operations in icing conditions.............. 135.227, .341, 135.345........................... 121.629
--Fuel reserves............................... 135.209, .223.................................... 121.639, .641, 121.643, .645
Subpart V--Records and Reports:
--Maintenance log: Airplane................... 135.65(c), 135.415(a)............................ 121.701(a), 121.703(a), (e)
--Mechanical interruption summary report...... 135.417.......................................... 121.705(b)
--Alteration and repair reports............... 135.439(a)(2).................................... 121.707
--Airworthiness release or airplane log entry. 135.443.......................................... 121.709
--Other recordkeeping requirements............ ................................................. 121.711, .713, 121.715
--------------------------------------------------------------------------------------------------------------------------------------------------------
Table 3.--Derivation Table for Part 119
------------------------------------------------------------------------
New Section Based on
------------------------------------------------------------------------
Subpart A:
119.1(a)................ New language.
[[Page 2620]]
119.1(b)................ SFAR 38-2, Section 1(a).
119.1(c)................ New language.
119.1(d)................ New language.
119.1(e)................ New language.
119.2................... New language.
119.3................... SFAR 38-2, Section 6 and new language.
119.5(a)................ SFAR 38-2, Section 2(a).
119.5(b)................ SFAR 38-2, Section 2(b).
119.5(c)................ New language.
119.5(d)................ SFAR 38-2, Section 1(a)(3).
119.5(e)................ SFAR 38-2, Section 1(a)(3).
119.5(f)................ SFAR 38-2, Section 1(b).
119.5(g)................ SFAR 38-2, Section 1(c), 121.4, 135.7.
119.5(h)................ SFAR 38-2, Flush paragraph following
Section 1(a)(3) and new language.
119.5(i)................ 121.27(a)(1), 121.51(a)(1), 135.13(a)(3).
119.5(j)................ 135.33.
119.7(a)................ SFAR 38-2, Section 3.
119.7(b)................ 121.23, 121.43.
119.9(a)................ 135.29.
119.9(b)................ New language.
Subpart B:
119.21(a)............... SFAR 38-2, Section 4(a), 121.3.
119.21(b)............... SFAR 38-2, Section 4(b).
119.21(c)............... New language.
119.23(a)............... SFAR 38-2, Section 5(a).
119.23(b)............... SFAR 38-2, Section 5(b).
119.25(a)............... SFAR 38-2, Section 4(c), 5 (c), and (d)
and new language.
119.25(b)............... SFAR 38-2, Section 4(c), 5 (c), and (d)
and new language.
Subpart C:
119.31.................. SFAR 38-2, Section 1(c), 2 (a) and (b),
121.3, and 135.5.
119.33(a)............... SFAR 38-2, Section 1(c), 2 (a) and (b), 3,
121.3, 135.5, 135.13(a).
119.33(b)............... SFAR 38-2, Section 1(c), 2 (a) and (b), 3,
121.3, 135.5, 135.13(a).
119.33(c)............... SFAR 38-2, Section 1(c), 2 (a) and (b), 3,
121.3, 135.5, 135.13(a).
119.35(a)............... 121.26, 121.47(a), 135.11(a).
119.35(b)............... 121.26, 121.47(a), 135.11(a).
119.35(c)............... 121.47(a).
119.35(d)............... 121.47(b).
119.35(e)............... 121.47(c).
119.35(f)............... 121.47(d).
119.35(g)............... 121.48.
119.35(h)............... 121.49.
119.37(a)............... 121.25(a), 121.45(a), 135.11(b)(1) and new
language.
119.37(b)............... 121.25(a), 121.45(a), 135.11(b)(1) and new
language.
119.37(c)............... 121.25(a), 121.45(a), 135.11(b)(1) and new
language.
119.37(d)............... 121.25(a), 121.45(a), 135.11(b)(1) and new
language.
119.37(e)............... 121.25(a), 121.45(a), 135.11(b)(1) and new
language.
119.39(a)............... 121.27(a)(2), 121.51(a)(3), 135.11(b)(1).
119.39(b)............... 121.27(a)(2), 121.51, 135.13 (a)(2) and
(b).
119.41(a)............... 121.77(a), 135.15(a).
119.41(b)............... New language.
119.41(c)............... 121.77(b), 135.15(b).
119.41(d)............... 121.77(c), 135.15(d).
119.43(a)............... 121.75(b), 135.63(a)(2).
119.43(b)............... 121.75(b), 135.63(a)(2).
119.47(a)............... 135.27(a).
119.47(b)............... 121.83, 135.27(b).
119.49(a)............... 121.5, 121.25(b), 121.45(b), 135.11(b),
and new language.
119.49(b)............... 121.45(b), 135.11(b)(1) and new language.
119.49(c)............... 135.11(b)(1) and new language.
119.49(d)............... 121.75, 135.81.
119.51(a)............... 121.79(a), 135.17(a).
119.51(b)............... 121.79(b), 135.17(d).
119.51(c)............... 121.79(c), 135.17(b), and new language.
119.51(d)............... 121.79(d), 135.17 (c) and (d).
119.51(e)............... 121.79(b), 135.17 (c) and (d).
119.53(a)............... 121.6(a).
119.53(b)............... New language.
119.53(c)............... 121.6(b).
119.53(d)............... 121.6(c).
119.53(e)............... New language.
119.53(f)............... New language.
119.55(a)............... 121.57 (a) and (b).
[[Page 2621]]
119.55(b)............... 121.57 (a) and (b).
119.55(c)............... 121.57 (a) and (b).
119.55(d)............... 121.57 (a) and (b).
119.55(e)............... 121.57 (a) and (b).
119.57(a)............... 121.57(c).
119.57(b)............... New language.
119.58(a)............... 135.19(b).
119.58(b)............... 135.19(a).
119.58(c)............... 135.19(c).
119.59(a)............... 121.81(a), 135.73, and new language.
119.59(b)............... 121.73, 121.81(a), 135.63(a), 135.73, and
new language.
119.59(c)............... 121.81(a).
119.59(d)............... New language.
119.59(e)............... New language.
119.59(f)............... New language.
119.61(a)............... 121.29(a), 121.53 (a), (c), and (d),
135.9(a).
119.61(b)............... 121.29(a), 121.53(c), and new language.
119.61(c)............... 135.35.
119.63(a)............... New language.
119.63(b)............... New language.
119.65(a)............... 121.59(a).
119.65(b)............... 121.59(b).
119.65(c)............... 121.59(b).
119.65(d)............... 121.61 and new language.
119.65(e)............... 121.59(c).
119.67(a)............... 121.61(a) and new language.
119.67(b)............... 121.61(b) and new language.
119.67(c)............... 121.61(c), 135.39(c) and new language.
119.67(d)............... 121.61(d) and new language.
119.67(e)............... 121.61(b), 135.39(d).
119.69(a)............... 135.37(a).
119.69(b)............... 121.59(b), 135.37(b).
119.69(c)............... 121.59(b)
119.69(d)............... 135.39 and new language.
119.69(e)............... 121.59, 135.37(c).
119.71(a)............... 135.39(a)(1) and new language.
119.71(b)............... 135.39(a)(2) and new language.
119.71(c)............... 135.39(b)(1) and new language.
119.71(d)............... 135.39(b)(2) and new language.
119.71(e)............... 135.39(c) and new language.
119.71(f)............... 135.39(d) and new language.
------------------------------------------------------------------------
Table 4.--Distribution Table for Part 121, Part 135, and SFAR 38-2
Sections Being Replaced by Part 119
------------------------------------------------------------------------
------------------------------------------------------------------------
Part 121: Replaced by:
121.3................... 119.21(a); 119.31; 119.33.
121.4................... 119.5(g).
121.5................... 119.49(a).
121.6(a)................ 119.53(a).
121.6(b)................ 119.53(c).
121.6(c)................ 119.53(d).
121.7................... 119.21.
121.9................... deleted.
121.13.................. 119.25.
121.21.................. 119.1.
121.23.................. 119.7(b).
121.25(a)............... 119.37 (a), (b), (c), (d), (e), (f), and
(g).
121.25(b)............... 119.49(a).
121.26.................. 119.35 (a) and (b).
121.27(a)(1)............ 119.5(i).
121.27(a)(2)............ 119.39 (a) and (b).
121.29(a)............... 119.61 (a) and (b).
121.41.................. 119.1.
121.43.................. 119.7(b).
121.45(a)............... 119.37 (a), (b), (c), (d), (e), (f), and
(g).
121.45(b)............... 119.49 (a) and (b).
121.47(a)............... 119.35 (a), (b), and (c).
121.47(b)............... 119.35(d).
121.47(c)............... 119.35(e).
121.47(d)............... 119.35(f).
121.48.................. 119.35(g).
[[Page 2622]]
121.49.................. 119.35(h).
121.51.................. 119.39(b).
121.51(a)(1)............ 119.5(i).
121.51(a)(3)............ 119.39(a).
121.53(a)............... 119.61(a).
121.53(c)............... 119.61 (a) and (b).
121.53(d)............... 119.61(a).
121.55.................. deleted.
121.57(a)............... 119.55 (a), (b), (c), (d), and (e).
121.57(b)............... 119.55 (a), (b), (c), (d), and (e).
121.57(c)............... 119.57(a).
121.59.................. 119.69(e).
121.59(a)............... 119.65(a).
121.59(b)............... 119.65 (b) and (c); 119.69 (b) and (c).
121.59(c)............... 119.65(e).
121.61.................. 119.65(d).
121.61(a)............... 119.67(a).
121.61(b)............... 119.67 (b) and (e).
121.61(c)............... 119.67(c).
121.61(d)............... 119.67(d).
121.71.................. 119.1.
121.73.................. 119.59(b).
121.75.................. 119.49(d).
121.75(b)............... 119.43 (a) and (b).
121.77(a)............... 119.41(a).
121.77(b)............... 119.41(c).
121.77(c)............... 119.41(d).
121.79(a)............... 119.51(a).
121.79(b)............... 119.51 (b) and (e).
121.79(c)............... 119.51(c).
121.79(d)............... 119.51(d).
121.81(a)............... 119.59 (a), (b), and (c).
121.83.................. 119.47(b).
Part 135: Replaced by:
135.5................... 119.31; 119.33 (a), (b), and (c).
135.7................... 119.5(g).
135.9(a)................ 119.61(a).
135.11(a)............... 119.35 (a) and (b).
135.11(b)............... 119.49(a).
135.11(b)(1)............ 119.37 (a), (b), (c), (d), (e), (f), and
(g); 119.39(a); 119.49 (b) and (c).
135.13(a)............... 119.33 (a), (b), and (c).
135.13(a)(2)............ 119.39(b).
135.13(a)(3)............ 119.5(i).
135.13(b)............... 119.39(b).
135.15(a)............... 119.41(a).
135.15(b)............... 119.41(b).
135.15(d)............... 119.41(d).
135.17(a)............... 119.51(a).
135.17(b)............... 119.51(c).
135.17(c)............... 119.51 (d) and (e).
135.17(d)............... 119.51 (b), (d), and (e).
135.19.................. 119.58.
135.27(a)............... 119.47(a).
135.27(b)............... 119.47(b).
135.29.................. 119.9(a).
135.31.................. 119.5.
135.33.................. 119.5(j).
135.35.................. 119.61(c).
135.37(a)............... 119.69(a).
135.37(b)............... 119.69(b).
135.37(c)............... 119.69(e).
135.39.................. 119.69(d).
135.39(a)(1)............ 119.71(a).
135.39(a)(2)............ 119.71(b).
135.39(b)(1)............ 119.71(c).
135.39(b)(2)............ 119.71(d).
135.39(c)............... 119.67(c); 199.71(e).
135.39(d)............... 119.67(e); 119.71(f).
135.63(a)............... 119.59(b).
135.63(a)(2)............ 119.43 (a) and (b).
135.73.................. 119.59(a) and (b).
135.81.................. 119.49(d).
SFAR 38-2: Replaced by:
[[Page 2623]]
Section 1(a)............ 119.1(b).
Section 1(a)(3)......... 119.5 (d) and (e); 119.5(h).
Section 1(b)............ 119.5(f).
Section 1(c)............ 119.5(g); 119.31; 119.33 (a), (b), and
(c).
Section 2(a)............ 119.5(a); 119.31; 119.33 (a), (b), and
(c).
Section 2(b)............ 119.5(b); 119.31; 119.33 (a), (b), and
(c).
Section 2(c)............ 129.1.
Section 3............... 119.7(a); 119.33 (a), (b), and (c).
Section 4(a)............ 119.21(a).
Section 4(b)............ 119.21(b).
Section 4(c)............ 119.25 (a) and (b).
Section 4(d)............ 119.25 (a) and (b).
Section 5(a)............ 119.23(a).
Section 5(b)............ 119.23(b).
Section 5(c)............ 119.25 (a) and (b).
Section 5(d)............ 119.25 (a) and (b).
Section 6............... 119.3.
------------------------------------------------------------------------
[FR Doc. 96-947 Filed 1-22-96; 4:48 pm]
BILLING CODE 4910-13-M
Complete official Federal Register PDF
FR Doc. 96-572 Airworthiness Directives; Airbus Model A330 and A340 Series Airplanes
[Federal Register Volume 61, Number 18 (Friday, January 26, 1996)]
[Rules and Regulations]
[Pages 2409-2410]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-572]
-----------------------------------------------------------------------
DEPARTMENT OF TRANSPORTATION
14 CFR Part 39
[Docket No. 95-NM-250-AD; Amendment 39-9487; AD 96-02-02]
Airworthiness Directives; Airbus Model A330 and A340 Series
Airplanes
AGENCY: Federal Aviation Administration, DOT.
ACTION: Final rule; request for comments.
-----------------------------------------------------------------------
SUMMARY: This amendment adopts a new airworthiness directive (AD),
applicable to certain Airbus Model A330 and A340 series airplanes. This
action requires installation of locking plates at the guide bushings in
the area of the spigot bolt for certain aft flap track attachments.
This amendment is prompted by reports of these guide bushings migrating
out of position and resulting in a partial transfer of loads from the
main attachment spigot bolt to two fail-safe bolts. Since the fail-safe
bolts can withstand such loads for only a limited time, they can
eventually fail and allow the wing flap to separate from the airplane.
The actions specified in this AD are intended to prevent separation of
the wing flap, which can lead to reduced controllability of the
airplane and injury to persons or damage to property on the ground.
DATES: Effective February 12, 1996.
The incorporation by reference of certain publications listed in
the regulations is approved by the Director of the Federal Register as
of February 12, 1996.
Comments for inclusion in the Rules Docket must be received on or
before March 26, 1996.
ADDRESSES: Submit comments in triplicate to the Federal Aviation
Administration (FAA), Transport Airplane Directorate, ANM-103,
Attention: Rules Docket No. 95-NM-250-AD, 1601 Lind Avenue SW., Renton,
Washington 98055-4056.
The service information referenced in this AD may be obtained from
Airbus Industrie, 1 Rond Point Maurice Bellonte, 31707 Blagnac Cedex,
France. This information may be examined at the FAA, Transport Airplane
Directorate, 1601 Lind Avenue, SW., Renton, Washington; or at the
Office of the Federal Register, 800 North Capitol Street NW., suite
700, Washington, DC.
FOR FURTHER INFORMATION CONTACT: Charles Huber, Aerospace Engineer,
Standardization Branch, ANM-113, FAA, Transport Airplane Directorate,
1601 Lind Avenue SW., Renton, Washington 98055-4056; telephone (206)
227-2589; fax (206) 227-1149.
SUPPLEMENTARY INFORMATION: The Direction Generale de l'Aviation Civile
(DGAC), which is the airworthiness authority for France, recently
notified the FAA that an unsafe condition may exist on certain Airbus
Model A330 and A340 series airplanes. The DGAC advises that operators
have reported finding guide bushings in the area of the spigot bolt for
the aft wing flap attachment at tracks 2 through 5 that have migrated
out of position. Such bushing migration was found on one flight test
airplane and on two in-service airplanes. When migration of the guide
bushing takes place, it can result in a partial transfer of loads from
the main attachment spigot bolt to two fail-safe bolts. Although the
flaps are still operable in this condition, the fail-safe bolts are
able to withstand the loads only for a limited period of time. If the
bolts were to fail, the flap then could separate from the airplane.
This condition, if not corrected, could result in reduced
controllability of the airplane, and possible injury to persons or
damage to property on the ground.
Airbus has issued Service Bulletins A330-57-3028 (for Model A330
series airplanes), and A340-57-4032 (for Model A340 series airplanes),
both dated June 6, 1995. These service bulletins describe procedures
for installing locking plates at the bushings in the area of the spigot
bolt for the flap track attachment at flap tracks 2 through 5, left-
hand and right-hand. Installation of these locking plates will preclude
the possibility of migration of the bushings, and ensure the correct
function of the aft track attachment. The DGAC classified this service
bulletin as mandatory and issued French airworthiness directive (CN)
95-124-012(B) (applicable to Model A330 series airplanes), and CN 95-
125-023(B) (applicable to Model A340 series airplanes), both dated June
21, 1995, in order to assure the continued airworthiness of these
airplanes in France.
This airplane model is manufactured in France and is type
certificated for operation in the United States under the provisions of
section 21.29 of the Federal Aviation Regulations (14 CFR 21.19) and
the applicable bilateral airworthiness agreement. Pursuant to this
bilateral airworthiness agreement, the DGAC has kept the FAA informed
of the situation described above. The FAA has examined the findings of
the DGAC, reviewed all available information, and determined that AD
action is necessary for products of this type design that are
certificated for operation in the United States.
Since an unsafe condition has been identified that is likely to
exist or develop on other airplanes of the same type design registered
in the United States, this AD is being issued to prevent migration of
the guide bushings at the aft wing flap attachments. This AD requires
the installation of locking plates at the flap track attachments on
flap tracks 2 through 5, left-hand and right-hand. The actions are
required to be accomplished in accordance with the service bulletins
described previously.
None of the Model A330 or A340 series airplanes affected by this
action are on the U.S. Register. All airplanes included in the
applicability of this rule currently are operated by non-U.S. operators
under foreign registry; therefore, they are not directly affected by
this AD action. However, the FAA considers that this rule is necessary
to ensure that the unsafe condition is addressed in the event that any
of these subject airplanes are imported and placed on the U.S. Register
in the future.
Should an affected airplane be imported and placed on the U.S.
Register in the future, it would require approximately 40 work hours to
accomplish the required actions, at an average labor charge of $60 per
work hour. Required parts would be furnished by the manufacturer at no
cost
[[Page 2410]]
to operators. Based on these figures, the cost impact of this AD would
be $2,400 per airplane.
Since this AD action does not affect any airplane that is currently
on the U.S. register, it has no adverse economic impact and imposes no
additional burden on any person. Therefore, notice and public
procedures hereon are unnecessary and the amendment may be made
effective in less than 30 days after publication in the Federal
Register.
Comments Invited
Although this action is in the form of a final rule and was not
preceded by notice and opportunity for public comment, comments are
invited on this rule. Interested persons are invited to comment on this
rule by submitting such written data, views, or arguments as they may
desire. Communications shall identify the Rules Docket number and be
submitted in triplicate to the address specified under the caption
ADDRESSES. All communications received on or before the closing date
for comments will be considered, and this rule may be amended in light
of the comments received. Factual information that supports the
commenter's ideas and suggestions is extremely helpful in evaluating
the effectiveness of the AD action and determining whether additional
rulemaking action would be needed.
Comments are specifically invited on the overall regulatory,
economic, environmental, and energy aspects of the rule that might
suggest a need to modify the rule. All comments submitted will be
available, both before and after the closing date for comments, in the
Rules Docket for examination by interested persons. A report that
summarizes each FAA-public contact concerned with the substance of this
AD will be filed in the Rules Docket.
Commenters wishing the FAA to acknowledge receipt of their comments
submitted in response to this rule must submit a self-addressed,
stamped postcard on which the following statement is made: ``Comments
to Docket Number 95-NM-250-AD.'' The postcard will be date stamped and
returned to the commenter.
The regulations adopted herein will not have substantial direct
effects on the States, on the relationship between the national
government and the States, or on the distribution of power and
responsibilities among the various levels of government. Therefore, in
accordance with Executive Order 12612, it is determined that this final
rule does not have sufficient federalism implications to warrant the
preparation of a Federalism Assessment.
For the reasons discussed above, I certify that this action (1) is
not a ``significant regulatory action'' under Executive Order 12866;
(2) is not a ``significant rule'' under DOT Regulatory Policies and
Procedures (44 FR 11034, February 26, 1979); and (3) will not have a
significant economic impact, positive or negative, on a substantial
number of small entities under the criteria of the Regulatory
Flexibility Act. A final evaluation has been prepared for this action
and it is contained in the Rules Docket. A copy of it may be obtained
from the Rules Docket at the location provided under the caption
ADDRESSES.
List of Subjects in 14 CFR Part 39
Air transportation, Aircraft, Aviation safety, Incorporation by
reference, Safety.
Adoption of the Amendment
Accordingly, pursuant to the authority delegated to me by the
Administrator, the Federal Aviation Administration amends part 39 of
the Federal Aviation Regulations (14 CFR part 39) as follows:
PART 39--AIRWORTHINESS DIRECTIVES
1. The authority citation for part 39 continues to read as follows:
Authority: 49 USC 106(g), 40113, 44701.
Sec. 39.13 [Amended]
2. Section 39.13 is amended by adding the following new
airworthiness directive:
96-02-02 Airbus: Amendment 39-9487. Docket 95-NM-250-AD.
Applicability: Model A330-301, 0321, -322, -341, and -342 series
airplanes; and Model A340-211, -212, -311, and -312 series
airplanes; on which Airbus Modification 43328 or 43479 has not been
accomplished; certificated in any category.
Note 1: This AD applies to each airplane identified in the
preceding applicability provision, regardless of whether it has been
otherwise modified, altered, or repaired in the area subject to the
requirements of this AD. For airplanes that have been modified,
altered, or repaired so that the performance of the requirements of
this AD is affected, the owner/operator must use the authority
provided in paragraph (b) of this AD to request approval from the
FAA. This approval may address either no action, if the current
configuration eliminates the unsafe condition; or different actions
necessary to address the unsafe condition described in this AD. Such
a request should include an assessment of the effect of the changed
configuration on the unsafe condition addressed by this AD. In no
case does the presence of any modification, alteration, or repair
remove any airplane from the applicability of this AD.
Compliance: Required as indicated, unless accomplished
previously.
To prevent migration of the guide bushings in the area of the
spigot bolt for the aft flap track attachments, accomplish the
following:
(a) Prior to the accumulation of 3,500 total flight cycles,
install locking plates at the guide bushings at flap track
attachments 2 through 5, left-hand and right-hand, in accordance
with Airbus Service Bulletin A330-57-3028 (for Model A330 series
airplanes) or A340-57-4032 (for Model A340 series airplanes), both
dated June 6, 1995, as applicable.
(b) An alternative method of compliance or adjustment of the
compliance time that provides an acceptable level of safety may be
used if approved by the Manager, Standardization Branch, ANM-113,
FAA, Transport Airplane Directorate. Operators shall submit their
requests through an appropriate FAA Principal Maintenance Inspector,
who may add comments and then send it to the Manager,
Standardization Branch, ANM-113.
Note 2: Information concerning the existence of approved
alternative methods of compliance with this AD, if any, may be
obtained from the Standardization Branch, ANM-113.
(c) Special flight permits may be issued in accordance with
sections 21.197 and 21.199 of the Federal Aviation Regulations (14
CFR 21.197 and 21.199) to operate the airplane to a location where
the requirements of this AD can be accomplished.
(d) The installation shall be done in accordance with Airbus
Service Bulletin A330-57-3028 (for Model A330 series airplanes),
dated June 6, 1995; or Airbus Service Bulletin A340-57-4032 (for
Model A340 series airplanes), dated June 6, 1995; as applicable.
This incorporation by reference was approved by the Director of the
Federal Register in accordance with 5 U.S.C. 552(a) and 1 CFR part
51. Copies may be obtained from Airbus Industrie, 1 Rond Point
Maurice Bellonte, 31707 Blagnac Cedex, France. Copies may be
inspected at the FAA, Transport Airplane Directorate, 1601 Lind
Avenue, SW., Renton, Washington; or at the Office of the Federal
Register, 800 North Capitol Street NW., suite 700, Washington, DC.
(e) This amendment becomes effective on February 12, 1996.
Issued in Renton, Washington, on January 11, 1996.
Darrell M. Pederson,
Acting Manager, Transport Airplane Directorate, Aircraft Certification
Service.
[FR Doc. 96-572 Filed 1-25-96; 8:45 am]
BILLING CODE 4910-13-P
Complete official Federal Register PDF
FR Doc. 96-571 Airworthiness Directives; Airbus Model A310 Series Airplanes
[Federal Register Volume 61, Number 18 (Friday, January 26, 1996)]
[Rules and Regulations]
[Pages 2410-2412]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-571]
-----------------------------------------------------------------------
DEPARTMENT OF TRANSPORTATION
14 CFR Part 39
[Docket No. 95-NM-66-AD; Amendment 39-9488; AD 96-02-03]
Airworthiness Directives; Airbus Model A310 Series Airplanes
AGENCY: Federal Aviation Administration, DOT.
[[Page 2411]]
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: This amendment supersedes an existing airworthiness directive
(AD), applicable to all Airbus Model A310 series airplanes, that
currently requires inspections to detect cracks in the area of the
shock absorber attachment at the top of the barrel at the main landing
gear (MLG), a measurement of the gap between the barrel and the shock
absorber attachment; and corrective action, if necessary. That AD was
prompted by a report of the rupture of the aft hinge arm of the left
MLG barrel. This amendment requires a measurement of the gap between
the washer and barrel of the MLG, eddy current inspections to detect
cracking of the MLG barrel, correction of any discrepancy, and
accomplishment of certain other follow-on actions. Terminating actions
are also provided by this AD. The actions specified by this AD are
intended to prevent collapse of the MLG.
DATES: Effective February 26, 1996.
The incorporation by reference of certain publications listed in
the regulations is approved by the Director of the Federal Register as
of February 26, 1996.
ADDRESSES: The service information referenced in this AD may be
obtained from Messier Services, 45635 Willow Pond Plaza, Sterling,
Virginia 20164. This information may be examined at the Federal
Aviation Administration (FAA), Transport Airplane Directorate, Rules
Docket, 1601 Lind Avenue, SW., Renton, Washington; or at the Office of
the Federal Register, 800 North Capitol Street NW., suite 700,
Washington, DC.
FOR FURTHER INFORMATION CONTACT: Phil Forde, Aerospace Engineer,
Standardization Branch, ANM-113, FAA, Transport Airplane Directorate,
1601 Lind Avenue SW., Renton, Washington 98055-4056; telephone (206)
227-2146; fax (206) 227-1149.
SUPPLEMENTARY INFORMATION: A proposal to amend part 39 of the Federal
Aviation Regulations (14 CFR part 39) by superseding AD 91-22-52,
amendment 39-8119 (57 FR 5372, February 14, 1992), which is applicable
to all Airbus Model A310 series airplanes, was published in the Federal
Register on November 8, 1995 (60 FR 56271). That action proposed to
require a measurement of the gap between the washer and barrel of the
main landing gear (MLG), eddy current inspections to detect cracking of
the MLG barrel, correction of any discrepancy, and accomplishment of
certain other follow-on actions.
Interested persons have been afforded an opportunity to participate
in the making of this amendment. Due consideration has been given to
the single comment received.
The commenter supports the proposed rule.
After careful review of the available data, including the comment
noted above, the FAA has determined that air safety and the public
interest require the adoption of the rule as proposed.
The FAA estimates that 18 airplanes of U.S. registry will be
affected by this proposed AD.
To accomplish the gap measurements, visual inspections, and other
follow-on actions will require approximately 5 work hours per airplane,
at an average labor rate of $60 per work hour. Based on these figures,
the cost impact of these required actions on U.S. operators is
estimated to be $5,400, or $300 per airplane, per cycle.
To accomplish the eddy current inspections will require
approximately 8 work hours per airplane, at an average labor rate of
$60 per work hour. Based on these figures, the cost impact of these
required inspections on U.S. operators is estimated to be $8,640, or
$480 per airplane, per inspection cycle.
Based on the figures discussed above, the cost impact of this AD on
U.S. operators is estimated to be $14,040, or $780 per airplane. The
cost impact figures are based on assumptions that no operator has yet
accomplished any of the requirements of this AD action, and that no
operator would accomplish those actions in the future if this AD were
not adopted.
The regulations adopted herein will not have substantial direct
effects on the States, on the relationship between the national
government and the States, or on the distribution of power and
responsibilities among the various levels of government. Therefore, in
accordance with Executive Order 12612, it is determined that this final
rule does not have sufficient federalism implications to warrant the
preparation of a Federalism Assessment.
For the reasons discussed above, I certify that this action (1) is
not a ``significant regulatory action'' under Executive Order 12866;
(2) is not a ``significant rule'' under DOT Regulatory Policies and
Procedures (44 FR 11034, February 26, 1979); and (3) will not have a
significant economic impact, positive or negative, on a substantial
number of small entities under the criteria of the Regulatory
Flexibility Act. A final evaluation has been prepared for this action
and it is contained in the Rules Docket. A copy of it may be obtained
from the Rules Docket at the location provided under the caption
ADDRESSES.
List of Subjects in 14 CFR Part 39
Air transportation, Aircraft, Aviation safety, Incorporation by
reference, Safety.
Adoption of the Amendment
Accordingly, pursuant to the authority delegated to me by the
Administrator, the Federal Aviation Administration amends part 39 of
the Federal Aviation Regulations (14 CFR part 39) as follows:
PART 39--AIRWORTHINESS DIRECTIVES
1. The authority citation for part 39 continues to read as follows:
Authority: 49 USC 106(g), 40113, 44701.
Sec. 39.13 [Amended]
2. Section 39.13 is amended by removing amendment 39-8119 (57 FR
5372, February 14, 1992), and by adding a new airworthiness directive
(AD), amendment 39-9488, to read as follows:
96-02-03 Airbus Industrie: Amendment 39-9488. Docket 95-NM-66-AD.
Supersedes AD 91-22-52, Amendment 39-8119.
Applicability: Model A310 series airplanes on which Airbus
Modification 1033 (reference Airbus Service Bulletin A310-32-2066,
Revision 1, dated January 30, 1992) has not been installed;
certificated in any category.
Note 1: This AD applies to each airplane identified in the
preceding applicability provision, regardless of whether it has been
otherwise modified, altered, or repaired in the area subject to the
requirements of this AD. For airplanes that have been modified,
altered, or repaired so that the performance of the requirements of
this AD is affected, the owner/operator must use the authority
provided in paragraph (e) of this AD to request approval from the
FAA. This approval may address either no action, if the current
configuration eliminates the unsafe condition; or different actions
necessary to address the unsafe condition described in this AD. Such
a request should include an assessment of the effect of the changed
configuration on the unsafe condition addressed by this AD. In no
case does the presence of any modification, alteration, or repair
remove any airplane from the applicability of this AD.
Compliance: Required as indicated, unless accomplished
previously. To prevent collapse of the main landing gear (MLG),
accomplish the following:
(a) Perform a measurement of the gap between the washer and
barrel at the times specified in paragraph (a)(1) or (a)(2) of this
AD, as applicable, in accordance with Messier Bugatti Airbus A310
Service Bulletin 470-32-726, Revision 2, dated February 8, 1994.
(1) For airplanes equipped with MLG barrels applicable to Table
No. 1 of the
[[Page 2412]]
service bulletin: Perform the measurement within 8 days after the
effective date of this AD.
(2) For airplanes equipped with MLG barrels applicable to Table
No. 2 of the service bulletin: Perform the measurement within 3
months after the effective date of this AD.
(b) If the gap measurement is less than 1 mm (0.04 in.):
Accomplish either paragraph (b)(1) or (b)(2) of this AD, as
applicable.
(1) For airplanes equipped with MLG barrels applicable to Table
No. 1 of the service bulletin: No further action is required by this
paragraph for those airplanes.
(2) For airplanes equipped with MLG barrels applicable to Table
No. 2 of the service bulletin: Prior to further flight, coat the MLG
barrel and shock absorber connecting rod nut with a rubber sealant
in accordance with Messier Bugatti Airbus A310 Service Bulletin 470-
32-726, Revision 2, dated February 8, 1994.
(c) If the gap is equal to or greater than 1 mm (0.04 in.):
Accomplish paragraphs (c)(1), (c)(2), and (c)(3) of this AD, as
applicable, in accordance with Messier Bugatti Airbus A310 Service
Bulletin 470-32-726, Revision 2, dated February 8, 1994.
(1) For all airplanes: Within 15 days after accomplishing the
measurement required by paragraph (a) of this AD, perform a gap
recovery procedure in accordance with paragraph 2.B.(5) of the
Accomplishment Instructions of the service bulletin.
(2) For airplanes equipped with MLG barrels applicable to Table
No. 2 of the service bulletin: Prior to further flight after
accomplishing the gap recovery procedure required by paragraph
(c)(1) of this AD, coat the MLG barrel and connecting rod nut with a
rubber sealant in accordance with the service bulletin.
(3) For all airplanes: Within 15 days after accomplishing the
measurement required by paragraph (a) of this AD, perform a visual
inspection to detect cracks of the MLG barrel, in accordance with
paragraph 2.B.1 of the Accomplishment Instructions of the service
bulletin.
(i) If no crack is detected: Repeat the visual inspection
thereafter at intervals not to exceed 7 days until the eddy current
inspection required by paragraph (d) of this AD is accomplished.
(ii) If any crack is detected: Prior to further flight, replace
the MLG barrel with a barrel that has been modified in accordance
with Messier Bugatti Service Bulletin 470-32-640, dated July 11,
1988, and Messier Bugatti Service Bulletin 470-32-763, dated
February 28, 1994. Accomplishment of this replacement shall be done
in accordance with Messier Bugatti Airbus A310 Service Bulletin 470-
32-726, Revision 2, dated February 8, 1994. After accomplishment of
this replacement, no further action is required by this AD.
(d) Except as provided by paragraph (c)(3)(ii) of this AD (MLG
barrel replacement): Following accomplishment of either paragraph
(b) or (c) of this AD, and at the applicable times specified in
Table No. 1 and Table No. 2 of Messier Bugatti Airbus A310 Service
Bulletin 470-32-726, Revision 2, dated February 8, 1994, remove the
rubber sealant and perform an eddy current inspection to detect
cracks of the MLG barrel in accordance with Table No. 3 of that
service bulletin.
(1) If no crack is detected: At the times specified in Table No.
3 of the service bulletin, perform the various follow-on actions in
accordance with the service bulletin. (The follow-on actions include
repetitive gap measurements, repetitive eddy current and visual
inspections, installation of a new bushing, and replacement of the
bronze washer with a stainless steel washer.)
(i) However, in lieu of installing a new bushing on crack-free
barrels having no oxidation of the cadmium plating at the next
overhaul, as specified in the service bulletin, operators must
either repeat the gap measurement and eddy current inspection at
intervals not to exceed 2 years, or install a new bushing and
replace the bronze washer at the upper part of the MLG barrel with a
stainless steel washer, in accordance with the service bulletin.
(ii) After accomplishment of the installation of a new bushing
(reference Messier Bugatti Service Bulletin 470-32-640) and the
replacement of the bronze washer (reference Messier Bugatti Service
Bulletin 470-32-763), no further action is required by this AD.
(2) If any crack is detected: Prior to further flight, replace
the barrel with a barrel that has been modified in accordance with
Messier Bugatti Service Bulletin 470-32-640, dated July 11, 1988,
and Messier Bugatti Service Bulletin 470-32-763, dated February 28,
1994. Accomplishment of this replacement shall be done in accordance
with the Messier Bugatti Airbus A310 Service Bulletin 470-32-726,
Revision 2, dated February 8, 1994. After accomplishment of this
replacement, no further action is required by this AD.
(e) An alternative method of compliance or adjustment of the
compliance time that provides an acceptable level of safety may be
used if approved by the Manager, Standardization Branch, ANM-113,
FAA, Transport Airplane Directorate. Operators shall submit their
requests through an appropriate FAA Principal Maintenance Inspector,
who may add comments and then send it to the Manager,
Standardization Branch, ANM-113.
Note 2: Information concerning the existence of approved
alternative methods of compliance with this AD, if any, may be
obtained from the Standardization Branch, ANM-113.
(f) Special flight permits may be issued in accordance with
sections 21.197 and 21.199 of the Federal Aviation Regulations (14
CFR 21.197 and 21.199) to operate the airplane to a location where
the requirements of this AD can be accomplished.
(g) The actions shall be done in accordance with Messier Bugatti
Airbus A310 Service Bulletin 470-32-726, Revision 2, dated February
8, 1994. This incorporation by reference was approved by the
Director of the Federal Register in accordance with 5 U.S.C. 552(a)
and 1 CFR part 51. Copies may be obtained from Messier Services,
45635 Willow Pond Plaza, Sterling, Virginia 20164. Copies may be
inspected at the FAA, Transport Airplane Directorate, 1601 Lind
Avenue, SW., Renton, Washington; or at the Office of the Federal
Register, 800 North Capitol Street, NW., suite 700, Washington, DC.
(h) This amendment becomes effective on February 26, 1996.
Issued in Renton, Washington, on January 11, 1996.
Darrell M. Pederson,
Acting Manager, Transport Airplane Directorate, Aircraft Certification
Service.
[FR Doc. 96-571 Filed 1-25-96; 8:45 am]
BILLING CODE 4910-13-P
Complete official Federal Register PDF
FR Doc. 96-475 Airworthiness Directives; McDonnell Douglas Model DC-9-80 Series Airplanes and Model MD-88 Airplanes
[Federal Register Volume 61, Number 18 (Friday, January 26, 1996)]
[Rules and Regulations]
[Pages 2407-2409]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-475]
-----------------------------------------------------------------------
DEPARTMENT OF TRANSPORTATION
14 CFR Part 39
[Docket No. 95-NM-91-AD; Amendment 39-9485; AD 96-01-09]
Airworthiness Directives; McDonnell Douglas Model DC-9-80 Series
Airplanes and Model MD-88 Airplanes
AGENCY: Federal Aviation Administration, DOT.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: This amendment adopts a new airworthiness directive (AD),
applicable to certain McDonnell Douglas Model DC-9-80 series airplanes
and Model MD-88 airplanes, that requires installation of hydraulic line
restrictors in the main landing gear (MLG), and modification of the
hydraulic damper assembly of the MLG. This amendment is prompted by
reports of vibration occurring in the MLG during landing; in some
cases, such vibration has led to the collapse of the MLG. The actions
specified by this AD are intended to prevent incidents of vibration in
the MLG, which can adversely affect the integrity of the MLG.
DATES: Effective February 26, 1996.
The incorporation by reference of certain publications listed in
the regulations is approved by the Director of the Federal Register as
of February 26, 1996.
ADDRESSES: The service information referenced in this AD may be
obtained from McDonnell Douglas Corporation, 3855 Lakewood Boulevard,
Long Beach, California 90846, Attention: Technical Publications
Business Administration, Department C1-L51 (2-60). This information may
be examined at the Federal Aviation Administration (FAA), Transport
Airplane Directorate, Rules Docket, 1601 Lind Avenue, SW., Renton,
Washington; or at the FAA, Los Angeles Aircraft Certification Office,
Transport Airplane Directorate, 3960 Paramount Boulevard, Lakewood,
California; or at the Office of the Federal Register, 800 North Capitol
Street NW., suite 700, Washington, DC.
FOR FURTHER INFORMATION CONTACT: Walter Eierman, Aerospace Engineer,
Systems and Equipment Branch, ANM-130L, FAA, Los Angeles Aircraft
Certification Office, 3960 Paramount Boulevard, Lakewood, California
90712; telephone (310) 627-5336; fax (310) 627-5210.
SUPPLEMENTARY INFORMATION: A proposal to amend part 39 of the Federal
Aviation Regulations (14 CFR part 39) to include an airworthiness
directive (AD) that is applicable to certain McDonnell Douglas Model
DC-9-80 series airplanes and Model MD-88 airplanes was published in the
Federal Register on September 26, 1995 (60 FR 49523). That action
proposed to require installation of hydraulic line restrictors in the
main landing gear (MLG), and modification of the hydraulic damper
assembly of the MLG.
Interested persons have been afforded an opportunity to participate
in the making of this amendment. Due consideration has been given to
the comments received.
Four commenters support the proposal.
One commenter requests that the FAA revise the proposal to include
references to later revisions of the pertinent service bulletins, which
were recently released. The FAA concurs. Subsequent to the issuance of
the proposal, the FAA reviewed and approved Revision 1 of McDonnell
Douglas MD-80 Service Bulletin MD80-32-276, dated October 17, 1995; and
Revision 1 of McDonnell Douglas MD-80 Service Bulletin MD80-32-278,
dated September 6, 1995. These revisions are essentially identical to
the original issues of the service bulletins (which were referenced in
the proposal), but contain additional clarifying information.
Additionally, the FAA has reviewed and approved McDonnell Douglas MD-80
Alert Service Bulletin MD80-A32-286, dated September 11, 1995, which
contains, among other things, instructions for installing filtered
restrictors in the MLG hydraulic brake system. The FAA has revised the
final rule to include these newly released service bulletins as
additional sources of appropriate service instructions.
One commenter requests that paragraph (a) of the proposal be
revised to extend the compliance time for installation of the brake
line restrictors. This commenter is concerned that an ample number of
required parts will not be available to modify its large fleet within
the proposed compliance time of 9 months. The FAA does not concur that
an extension of the compliance time is necessary. In McDonnell Douglas
MD-80 Service Bulletin MD80-32-276, the manufacturer recommended that
the installation of the restrictors be accomplished on the affected
fleet within 12 months. Since the latest revision of that service
bulletin was issued on October 17, 1995, the FAA considers it to be
substantiation that the manufacturer can support parts production and
delivery for the affected fleet through October 17, 1996. Since
compliance with this AD is required by approximately that same date,
the FAA does not foresee that the availability of required parts will
be a problem for operators. However, under the provisions of paragraph
(c) of the final rule, the FAA may approve requests for adjustments to
the compliance time if data are submitted to substantiate that such an
adjustment would provide an acceptable level of safety.
One commenter requests that the FAA defer action on the proposed
requirements of paragraph (b), which would require operators to modify
the hydraulic damper assembly. This commenter contends that further
research and testing of the structural integrity of the reservoir
should be accomplished first to substantiate that the installation of
the hydraulic brake line restrictors [that would be required by
paragraph (a) of the proposal] will successfully curb the vibration
problems. This commenter claims that, if the most vulnerable part of
the damper design is the reservoir, then no amount of ``efficiency
improvements'' to the basic damper assembly will help.
[[Page 2408]]
The FAA does not concur with the commenter's request. The FAA finds
that the previous evaluations of this problem confirm that the
reservoir failures are the result of the landing gear vibration, and
are not a preceding failure that contributes to the vibration. Based on
these evaluations and other data obtained to date, the FAA maintains
that the modification required by paragraph (b) is both warranted and
appropriate.
After careful review of the available data, including the comments
noted above, the FAA has determined that air safety and the public
interest require the adoption of the rule with the changes previously
described. The FAA has determined that these changes will neither
increase the economic burden on any operator nor increase the scope of
the AD.
There are approximately 1,100 Model DC-9-80 series airplanes and
Model MD-88 airplanes of the affected design in the worldwide fleet.
The FAA estimates that 600 airplanes of U.S. registry will be affected
by this proposed AD.
Accomplishment of the installation of the brake line restrictor, as
described in McDonnell Douglas MD-80 Service Bulletin MD80-32-276, will
take approximately 4 work hours per airplane to accomplish, at an
average labor rate of $60 per work hour. Required parts will cost
approximately $928 per airplane. Based on these figures, the cost
impact of this installation on U.S. operators is estimated to be
$700,800, or $1,168 per airplane.
Accomplishment of the modification of the hydraulic damper
assembly, as described in McDonnell Douglas MD-80 Service Bulletin
MD80-32-278, will take approximately 6 work hours per airplane to
accomplish, at an average labor rate of $60 per work hour. Required
parts will cost approximately $4,000 per airplane. Based on these
figures, the cost impact of this modification on U.S. operators is
estimated to be $2,616,000, or $4,360 per airplane.
Based on the figures discussed above, the FAA estimates that the
cost impact of this AD on U.S. operators would be approximately
$3,316,800, or $5,528 per airplane. This cost impact figure is based on
assumptions that no operator has yet accomplished any of the
requirements of this AD action, and that no operator would accomplish
those actions in the future if this AD were not adopted.
The regulations adopted herein will not have substantial direct
effects on the States, on the relationship between the national
government and the States, or on the distribution of power and
responsibilities among the various levels of government. Therefore, in
accordance with Executive Order 12612, it is determined that this final
rule does not have sufficient federalism implications to warrant the
preparation of a Federalism Assessment.
For the reasons discussed above, I certify that this action (1) is
not a ``significant regulatory action'' under Executive Order 12866;
(2) is not a ``significant rule'' under DOT Regulatory Policies and
Procedures (44 FR 11034, February 26, 1979); and (3) will not have a
significant economic impact, positive or negative, on a substantial
number of small entities under the criteria of the Regulatory
Flexibility Act. A final evaluation has been prepared for this action
and it is contained in the Rules Docket. A copy of it may be obtained
from the Rules Docket at the location provided under the caption
ADDRESSES.
List of Subjects in 14 CFR Part 39
Air transportation, Aircraft, Aviation safety, Incorporation by
reference, Safety.
Adoption of the Amendment
Accordingly, pursuant to the authority delegated to me by the
Administrator, the Federal Aviation Administration amends part 39 of
the Federal Aviation Regulations (14 CFR part 39) as follows:
PART 39--AIRWORTHINESS DIRECTIVES
1. The authority citation for part 39 continues to read as follows:
Authority: 49 USC 106(g), 40101, 40113, 44701.
Sec. 39.13 [Amended]
2. Section 39.13 is amended by adding the following new
airworthiness directive:
96-01-09 McDonnell Douglas: Amendment 39-9485. Docket 95-NM-91-AD.
Applicability: Model DC-9-81 (MD-81), -82 (MD-82), -83 (MD-83),
and -87 (MD-87) series airplanes, and Model MD-88 airplanes;
certificated in any category; and listed in the following McDonnell
Douglas Service Bulletins:
McDonnell Douglas MD-80 Service Bulletin MD80-32-276,
dated March 31, 1995; and
McDonnell Douglas MD-80 Service Bulletin MD80-32-278,
dated March 31, 1995.
Note 1: This AD applies to each airplane identified in the
preceding applicability provision, regardless of whether it has been
modified, altered, or repaired in the area subject to the
requirements of this AD. For airplanes that have been modified,
altered, or repaired so that the performance of the requirements of
this AD is affected, the owner/operator must use the authority
provided in paragraph (c) of this AD to request approval from the
FAA. This approval may address either no action, if the current
configuration eliminates the unsafe condition; or different actions
necessary to address the unsafe condition described in this AD. Such
a request should include an assessment of the effect of the changed
configuration on the unsafe condition addressed by this AD. In no
case does the presence of any modification, alteration, or repair
remove any airplane from the applicability of this AD.
Compliance: Required as indicated, unless accomplished
previously.
To reduce the possibility of vibration in the main landing gear
(MLG) that can adversely affect its integrity, accomplish the
following:
(a) For airplanes listed in McDonnell Douglas MD-80 Service
Bulletin MD80-32-276, dated March 31, 1995, that have not been
previously modified (installation of brake line restrictors) in
accordance with McDonnell Douglas MD-80 Service Bulletin 32-246:
Within 9 months after the effective date of this AD, install
filtered brake line restrictors in the MLG hydraulic brake system in
accordance with McDonnell Douglas MD-80 Service Bulletin MD80-32-
276, dated March 31, 1995, or Revision 1, dated October 17, 1995.
Note 2: Installation of the filtered restrictors in accordance
with the instructions contained in McDonnell Douglas MD-80 Alert
Service Bulletin MD80-A32-286, dated September 11, 1995, is
considered acceptable for compliance with paragraph (a) of this AD.
(b) For airplanes listed in McDonnell Douglas MD-80 Service
Bulletin MD80-32-278, dated March 31, 1995: Within 36 months after
the effective date of this AD, modify the hydraulic damper assembly
(by removing shims, increasing bolt torque, and incorporating
changes to increase the volume of fluid passing between the two
damper chambers) in accordance with McDonnell Douglas MD-80 Service
Bulletin MD80-32-278, dated March 31, 1995, or Revision 1, dated
September 6, 1995.
(c) An alternative method of compliance or adjustment of the
compliance time that provides an acceptable level of safety may be
used if approved by the Manager, Los Angeles Aircraft Certification
Office (ACO), FAA, Transport Airplane Directorate. Operators shall
submit their requests through an appropriate FAA Principal
Maintenance Inspector, who may add comments and then send it to the
Manager, Los Angeles ACO.
Note 3: Information concerning the existence of approved
alternative methods of compliance with this AD, if any, may be
obtained from the Los Angeles ACO.
(d) Special flight permits may be issued in accordance with
sections 21.197 and 21.199 of the Federal Aviation Regulations (14
CFR 21.197 and 21.199) to operate the airplane to a location where
the requirements of this AD can be accomplished.
[[Page 2409]]
(e) The installation shall be done in accordance with McDonnell
Douglas MD-80 Service Bulletin MD80-32-276, dated March 31, 1995; or
McDonnell Douglas MD-80 Service Bulletin MD80-32-276, Revision 1,
dated October 17, 1995. The modification shall be done in accordance
with McDonnell Douglas MD-80 Service Bulletin MD80-32-278, dated
March 31, 1995; or McDonnell Douglas MD-80 Service Bulletin MD80-32-
278, Revision 1, dated September 6, 1995. This incorporation by
reference was approved by the Director of the Federal Register in
accordance with 5 U.S.C. 552(a) and 1 CFR part 51. Copies may be
obtained from McDonnell Douglas Corporation, 3855 Lakewood
Boulevard, Long Beach, California 90846, Attention: Technical
Publications Business Administration, Department C1-L51 (2-60).
Copies may be inspected at the FAA, Transport Airplane Directorate,
1601 Lind Avenue, SW., Renton, Washington; or at the FAA, Los
Angeles Aircraft Certification Office, Transport Airplane
Directorate, 3960 Paramount Boulevard, Lakewood, California; or at
the Office of the Federal Register, 800 North Capitol Street, NW.,
suite 700, Washington, DC.
(f) This amendment becomes effective on February 26, 1996.
Issued in Renton, Washington, on January 5, 1996.
Darrell M. Pederson,
Acting Manager, Transport Airplane Directorate, Aircraft Certification
Service.
[FR Doc. 96-475 Filed 1-25-96; 8:45 am]
BILLING CODE 4910-13-P
Complete official Federal Register PDF
FR Doc. 96-187 Airworthiness Directives; McDonnell Douglas Model DC-9-10, -20, - 30, -40, and -50 Series Airplanes and C-9 (Military) Series Airplanes
[Federal Register Volume 61, Number 18 (Friday, January 26, 1996)]
[Rules and Regulations]
[Pages 2403-2407]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-187]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF TRANSPORTATION
Federal Aviation Administration
14 CFR Part 39
[Docket No. 95-NM-16-AD; Amendment 39-9481; AD 96-01-05]
Airworthiness Directives; McDonnell Douglas Model DC-9-10, -20, -
30, -40, and -50 Series Airplanes and C-9 (Military) Series Airplanes
AGENCY: Federal Aviation Administration, DOT.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: This amendment adopts a new airworthiness directive (AD),
applicable to all McDonnell Douglas Model DC-9 and C-9 (military)
series airplanes, that requires replacement, inspection, and
modification of the attach fittings of the main landing gear (MLG).
This amendment is prompted by reports of severe structural damage and
rupture of the integral fuel tank due to overload of the MLG caused by
adverse landing conditions. The actions specified by this AD are
intended to minimize the possibility of primary structural damage and
rupture of the
[[Page 2404]]
integral fuel tank due to overload of the MLG; these conditions could
lead to fuel spillage and a resultant fire.
DATES: Effective February 26, 1996.
The incorporation by reference of certain publications listed in
the regulations is approved by the Director of the Federal Register as
of February 26, 1996.
ADDRESSES: The service information referenced in this AD may be
obtained from McDonnell Douglas Corporation, 3855 Lakewood Boulevard,
Long Beach, California 90846, Attention: Technical Publications
Business Administration, Department C1-L51 (2-60). This information may
be examined at the Federal Aviation Administration (FAA), Transport
Airplane Directorate, Rules Docket, 1601 Lind Avenue, SW., Renton,
Washington; or at the FAA, Los Angeles Aircraft Certification Office,
Transport Airplane Directorate, 3960 Paramount Boulevard, Lakewood,
California; or at the Office of the Federal Register, 800 North Capitol
Street NW., suite 700, Washington, DC.
FOR FURTHER INFORMATION CONTACT: David Y. J. Hsu, Aerospace Engineer,
Airframe Branch, ANM-120L, FAA, Transport Airplane Directorate, Los
Angeles Aircraft Certification Office, 3960 Paramount Boulevard,
Lakewood, California 90712; telephone (310) 627-5323; fax (310) 627-
5210.
SUPPLEMENTARY INFORMATION: A proposal to amend part 39 of the Federal
Aviation Regulations (14 CFR part 39) to include an airworthiness
directive (AD) that is applicable to all McDonnell Douglas Model DC-9
and C-9 (military) series airplanes was published in the Federal
Register on May 24, 1995 (60 FR 27449). That action proposed to require
replacement, inspection, and modification of the attach fittings of the
main landing gear (MLG).
Interested persons have been afforded an opportunity to participate
in the making of this amendment. Due consideration has been given to
the comments received.
Several commenters support the proposed rule.
Requests for Extension of the Compliance Time
Several commenters request that the proposed compliance time of 12
months be extended by as much as 12 additional months. Two commenters
indicate that a parts availability problem was encountered when
accomplishing one of the service bulletins cited in the proposed rule,
McDonnell Douglas DC-9 Service Bulletin 57-148. One of these commenters
indicates that the manufacturer requires a lead time in excess of 6
months to provide required parts. Another commenter states that, in
light of the proposed time frame for compliance with the proposal, the
number of work hours specified in the AD is too low because operators
would need to schedule special maintenance visits to modify their
aircraft. Similarly, other commenters request an extended compliance
time that would align with regularly scheduled maintenance visits,
thereby reducing lost revenue service. One commenter contends that
inspection of MLG attach fittings in accordance with Revision 5 of
McDonnell Douglas DC-9 Service Bulletin 57-148 will provide an adequate
level of safety until modification of those fittings is accomplished.
In light of these considerations, the FAA concurs with the
commenters' requests to extend the compliance time. The FAA finds that
extending the compliance time by 12 additional months will not
adversely affect safety significantly, and will allow operators to
accomplish the requirements of this AD at a base during regularly
scheduled maintenance where special equipment and trained maintenance
personnel will be available if necessary. Accordingly, paragraphs (a)
and (b) of the final rule have been revised to specify a compliance
time of 24 months.
Request To Clarify the Applicability of the AD
One commenter requests that the applicability of the proposal be
revised to reference the specific series of Model DC-9 airplanes
affected, rather than simply specifying that the proposed AD applies to
``All Model DC-9 and C-9 (military) series airplanes.'' The commenter
justifies its request by stating that McDonnell Douglas considers Model
MD-80 airplanes to be ``Series 80 DC-9'' airplanes. Therefore, since
the service bulletins cited in the proposed AD only apply to Model DC-9
series 10 through 50 and C-9 (military) series airplanes, the commenter
suggests that those airplanes specifically be identified in the
applicability of the AD to avoid any confusion and misinterpretation on
the part of operators. The FAA concurs with the commenter's request,
and has revised the applicability of the final rule accordingly.
Request To Include Actions Already Required by Other AD's
One commenter requests that the actions currently required by three
existing AD's be included in the proposed rule. Those AD's are:
AD 80-06-04 R1, amendment 39-4909 (49 FR 35617, September
11, 1984);
AD 84-26-01, amendment 39-4971 (50 FR 448, January 4,
1985); and
AD 90-18-03, amendment 39-6701 (55 FR 34704, August 24,
1990).
The commenter provides the following justification for this
request:
1. The three existing AD's address the same subject as that
specified in the proposed AD.
2. One of the existing AD's, AD 90-18-03, specifies a compliance
time for accomplishment of McDonnell Douglas DC-9 Service Bulletin 57-
125 that is different from the compliance time specified in the
proposal for accomplishment of the same action.
3. McDonnell Douglas DC-9 Service Bulletin 57-148, which is cited
in paragraph (b) of the proposed rule, also is listed in Table 2.3 of
Report No. MDC K1572, ``DC-9/MD80 Aging Aircraft Service Action
Requirements Document (SARD),'' Revision B, dated January 15, 1993
(hereinafter referred to as the ``SARD''). The compliance time
specified in Table 2.3 of the SARD for accomplishment of McDonnell
Douglas DC-9 Service Bulletin 57-148 differs from that specified in
paragraph (b) of this proposed rule for accomplishment of the same
action. Therefore, if a new AD is issued to mandate accomplishment of
Table 2.3 of the SARD, the compliance time specified in this proposed
AD may conflict with the compliance time specified in the new AD that
addresses the SARD.
The FAA acknowledges that certain actions specified in earlier
versions of the service bulletins addressed in this AD (McDonnell
Douglas DC-9 Service Bulletins 57-125 and 57-148) are mandated
currently in the three existing AD's cited by the commenter and that
the compliance times between certain documents vary. However, the FAA
does not concur with the commenter's request to include the
requirements of those AD's in this final rule for several reasons:
On November 4, 1994, the FAA issued a notice of proposed rulemaking
(NPRM), Docket 94-NM-92-AD (59 FR 56011, November 11, 1994), which
proposes to supersede AD 90-18-03. That NPRM proposes to require, in
part, the accomplishment of certain inspections and structural
modifications specified in Table 2.3 of the SARD. The FAA acknowledges
that the SARD references the two service bulletins cited in this final
rule (McDonnell Douglas DC-9 Service Bulletins 57-125 and 57-148).
However, in the final rule for Docket 94-NM-92-AD, the FAA intends to
exclude the actions specified
[[Page 2405]]
in the two service bulletins from the requirements of that AD.
Therefore, the actions described in those service bulletins would be
required by this AD only at the times specified herein.
Further, the FAA finds that the accomplishment of the requirements
of this final rule will terminate the requirements of AD 80-06-04 R1
and AD 84-26-01. The FAA has added a new paragraph (c) in the final
rule to specify this information.
Requests To Limit the Applicability of the AD
One commenter requests that only airplanes equipped with certain
gear fitting installations be applicable to the proposed AD. The
commenter indicates that replacement of the attach fittings, as
described in McDonnell Douglas DC-9 Service Bulletin 57-125, is
addressed in AD 90-18-03, and that there are various configurations of
fitting installations for which installation of smaller (\7/8\-inch
diameter) lower tension bolts is not required. The commenter also
indicates that, since the intent of the proposed AD is to improve the
breakaway feature of the MLG (which is affected by the diameter of the
lower tension bolts), only airplanes equipped with certain gear
fittings would be affected by the proposed AD.
The same commenter states that airplanes equipped with fittings
having large counterbore radii (7075-T73 fittings) that were installed
with clearance fit NAS bolts should be excluded from the applicability
of the proposal. The commenter indicates that it operates such
airplanes and, at one time, this type of installation was permissible.
The commenter explains that, although the complete intent of McDonnell
Douglas DC-9 Service Bulletin 57-148 has not been accomplished, the
portion of the service bulletin that has not been accomplished does not
affect the breakaway function of the fitting.
Additionally, one commenter states that the proposed AD should
require only the installation of a reduced diameter lower tension bolt
(7/8-inch) and bushing portion of McDonnell Douglas DC-9 Service
Bulletin 57-148 at an accelerated rate. The commenter adds that
operators of large fleets should be allowed to accomplish the remainder
of the actions specified in the service bulletin (including the
enlargement of the counterbore, the replacement of the lower flange
attachments with interference fit fasteners, and glass bead shotpeening
of the fitting) on schedule in accordance with the SARD, which is being
addressed in the final rule for Docket 94-NM-92-AD. The commenter
contends that the actions required by the proposed AD would impose a
severe hardship on operators. The commenter adds that only the
reduction in size of the lower tension bolt improves the breakaway
function of the gear fitting, which is the immediate concern addressed
in the proposed AD.
The FAA does not concur with these commenters' requests. The FAA
acknowledges that the key to breakaway capability of the MLG is the
installation of smaller (7/8-inch) diameter tension bolts that attach
the MLG fittings to the airframe. However, the FAA finds that
accomplishment of the corrective actions necessary to address stress
corrosion cracking of these fittings is equally as critical as
incorporation of the breakaway feature. Therefore, the FAA has
determined that the two objectives must be accomplished concurrently to
address these safety issues in a timely manner. The FAA finds that
accomplishment of the actions specified in both service bulletins cited
in this AD (McDonnell Douglas DC-9 Service Bulletins 57-125 and 57-148)
within 24 months after the effective date of this AD will adequately
address these safety concerns.
Request To Clarify Shotpeening Requirements
One commenter questions the effectiveness of on-wing, glass bead
shotpeening of the MLG fittings, as described in McDonnell Douglas DC-9
Service Bulletins 57-125 and 57-148. The commenter states that, in
order to be effective, shotpeening must be controlled precisely to
attain the required Almen Intensity. The commenter remarks that on-wing
shotpeening of the gear fittings cannot be controlled to obtain the
required Almen Intensity and fatigue life improvement. The commenter
specifies that the use of glass particles in the landing gear area,
which includes many moveable components, raises a serious issue of
system contamination and premature failure of components (i.e.,
bearings, due to glass particle contamination). The commenter makes no
specific request for a change to the final rule, and provides no
engineering data to substantiate that the fatigue life improvement is
reduced or that premature failure of components occurs due to system
contamination from glass particles.
The FAA finds that some clarification is necessary. Although the
shotpeening process described in the service bulletins has been used in
service for a substantial period of time, neither the FAA nor the
airplane manufacturer have received any reports concerning system
contamination or premature failure of components. Therefore, the FAA
finds that no change to the final rule is necessary in this regard.
However, the FAA would consider a request for approval of an
alternative method of compliance, in accordance with the provisions of
paragraph (d) of this AD, provided that adequate justification is
presented to support such a request.
Request To Clarify Number of Necessary Work Hours
One commenter states that the actual work hours and elapsed times
required to accomplish the actions specified in McDonnell Douglas DC-9
Service Bulletin 57-148 differ substantially from the figures reflected
in the service bulletin. The commenter remarks that the actual work
hours are approximately 400 more than the number specified in the
service bulletin, and that the actual elapsed time is 100 hours more.
The FAA infers from these remarks that the commenter requests that
the FAA revise the economic impact information, below, to increase the
number of work hours required for accomplishment of the actions
specified in this AD. The FAA concurs with the commenter's request. The
FAA has revised the number of work hours estimated for accomplishment
of the inspection and modification specified as Phase 2 in McDonnell
Douglas DC-9 Service Bulletin 57-148 from 36 to 436 work hours.
Estimated hours for elapsed time are not reflected specifically in AD
actions.
After careful review of the available data, including the comments
noted above, the FAA has determined that air safety and the public
interest require the adoption of the rule with the changes previously
described. The FAA has determined that these changes will neither
significantly increase the economic burden on any operator nor increase
the scope of the AD.
Economic Impact
There are approximately 906 Model DC-9 and C-9 (military) series
airplanes of the affected design in the worldwide fleet. The FAA
estimates that 549 airplanes of U.S. registry will be affected by this
AD.
The FAA estimates that the replacement specified as Option 1 in
McDonnell Douglas DC-9 Service Bulletin 57-125 has been accomplished on
all 549 airplanes of U.S. registry that will be affected by this AD.
(As discussed previously, accomplishment of Option 1 was required by AD
90-18-03.) Accordingly, the FAA finds that the replacement required by
this AD will
[[Page 2406]]
impose no additional economic burden on any U.S. operator.
However, should an affected airplane be imported and placed on the
U.S. Register in the future, it will require approximately 425 work
hours to accomplish Option 1, at an average labor rate of $60 per work
hour. The cost of required parts will be $58,853 per airplane. Based on
these figures, the cost impact for accomplishing Option 1 will be
$84,353 per airplane.
The FAA estimates that all 549 airplanes of U.S. registry will be
required to accomplish the inspection and modification specified as
Phase 2 in McDonnell Douglas DC-9 Service Bulletin 57-148. It will take
approximately 436 work hours per airplane to accomplish Phase 2, at an
average labor rate of $60 per work hour. Required parts will cost
approximately $4,338 per airplane. Based on these figures, the cost
impact on U.S. operators for accomplishing Phase 2 is estimated to be
$16,743,402, or $30,498 per airplane.
The cost impact figure discussed above is based on assumptions that
no operator has yet accomplished the requirement (Phase 2) of this AD
action, and that no operator would accomplish that action in the future
if this AD were not adopted.
Regulatory Impact
The regulations adopted herein will not have substantial direct
effects on the States, on the relationship between the national
government and the States, or on the distribution of power and
responsibilities among the various levels of government. Therefore, in
accordance with Executive Order 12612, it is determined that this final
rule does not have sufficient federalism implications to warrant the
preparation of a Federalism Assessment.
For the reasons discussed above, I certify that this action (1) is
not a ``significant regulatory action'' under Executive Order 12866;
(2) is not a ``significant rule'' under DOT Regulatory Policies and
Procedures (44 FR 11034, February 26, 1979); and (3) will not have a
significant economic impact, positive or negative, on a substantial
number of small entities under the criteria of the Regulatory
Flexibility Act. A final evaluation has been prepared for this action
and it is contained in the Rules Docket. A copy of it may be obtained
from the Rules Docket at the location provided under the caption
ADDRESSES.
List of Subjects in 14 CFR Part 39
Air transportation, Aircraft, Aviation safety, Incorporation by
reference, Safety.
Adoption of the Amendment
Accordingly, pursuant to the authority delegated to me by the
Administrator, the Federal Aviation Administration amends part 39 of
the Federal Aviation Regulations (14 CFR part 39) as follows:
PART 39--AIRWORTHINESS DIRECTIVES
1. The authority citation for part 39 continues to read as follows:
Authority: 49 USC 106(g), 40101, 40113, 44701.
Sec. 39.13 [Amended]
2. Section 39.13 is amended by adding the following new
airworthiness directive:
96-01-05 McDonnell Douglas: Amendment 39-9481. Docket 95-NM-16-AD.
Applicability: All Model DC-9-10, -20, -30, -40, and -50 series
airplanes, and C-9 (military) series airplanes; certificated in any
category.
Note 1: This AD applies to each airplane identified in the
preceding applicability provision, regardless of whether it has been
otherwise modified, altered, or repaired in the area subject to the
requirements of this AD. For airplanes that have been modified,
altered, or repaired so that the performance of the requirements of
this AD is affected, the owner/operator must use the authority
provided in paragraph (d) of this AD to request approval from the
FAA. This approval may address either no action, if the current
configuration eliminates the unsafe condition; or different actions
necessary to address the unsafe condition described in this AD. Such
a request should include an assessment of the effect of the changed
configuration on the unsafe condition addressed by this AD. In no
case does the presence of any modification, alteration, or repair
remove any airplane from the applicability of this AD.
Compliance: Required as indicated, unless accomplished
previously.
To minimize the possibility of primary structural damage and
rupture of the integral fuel tank due to overload of the main
landing gear (MLG) caused by adverse landing conditions, and
subsequent fuel spillage and a resultant fire, accomplish the
following:
(a) For airplanes on which Option 1 (or production equivalent)
has not been accomplished as specified in McDonnell Douglas DC-9
Service Bulletin 57-125 (original issue through Revision 5): Within
24 months after the effective date of this AD, replace the attach
fittings of both the right and left MLG's in accordance with Option
1 of the Accomplishment Instructions of McDonnell Douglas DC-9
Service Bulletin 57-125, Revision 5, dated November 5, 1990.
Note 2: Airplanes on which Option 1 has been accomplished as
specified in any of the following revisions of McDonnell Douglas DC-
9 Service Bulletin 57-125, are considered to be in compliance with
this AD and no further action is required by this AD:
------------------------------------------------------------------------
Service
bulletin Revision level Date
No.
------------------------------------------------------------------------
57-125.. Revision 3.................... October 28, 1982; or
Revision 4.................... June 21, 1983; or
Revision 5.................... November 5, 1990.
------------------------------------------------------------------------
(b) For airplanes on which Option 1 has been accomplished as
specified in McDonnell Douglas DC-9 Service Bulletin 57-125
(original version through Revision 2); but on which Phase 2 has not
been accomplished as specified in McDonnell Douglas DC-9 Service
Bulletin 57-148 (original version through Revision 5): Within 24
months after the effective date of this AD, inspect and modify the
attach fittings of both the right and left MLG's in accordance with
Phase 2 of McDonnell Douglas DC-9 Service Bulletin 57-148, Revision
5, dated November 23, 1992.
Note 3: Airplanes on which both Option 1 (or a production
equivalent) has been accomplished as specified in any of the
following revisions of McDonnell Douglas DC-9 Service Bulletin 57-
125; and Phase 2 (or a production equivalent) has been accomplished
as specified in any of the following revisions of McDonnell Douglas
DC-9 Service Bulletin 57-148; are considered to be in compliance
with this AD and no further action is required by this AD:
------------------------------------------------------------------------
Service
bulletin Revision level Date
No.
------------------------------------------------------------------------
57-125 (Original)................... January 26, 1979; or
Revision 1.................... February 16, 1979; or
Revision 2.................... August 24, 1979; and
57-148 (Original).................... October 1, 1982; or
Revision 1.................... June 8, 1983; or
Revision 2.................... August 9, 1989; or
Revision 3.................... September 11, 1990; or
Revision 4.................... February 25, 1991; or
Revision 5.................... November 23, 1992.
------------------------------------------------------------------------
(c) Accomplishment of the actions required by this AD
constitutes terminating action for the requirements of AD 80-06-04
R1, amendment 39-4909, and AD 84-26-01, amendment 39-4971.
(d) An alternative method of compliance or adjustment of the
compliance time that provides an acceptable level of safety may be
used if approved by the Manager, Los Angeles Aircraft Certification
Office (ACO),
[[Page 2407]]
FAA, Transport Airplane Directorate. Operators shall submit their
requests through an appropriate FAA Principal Maintenance Inspector,
who may add comments and then send it to the Manager, Los Angeles
ACO.
Note 4: Information concerning the existence of approved
alternative methods of compliance with this AD, if any, may be
obtained from the Los Angeles ACO.
(e) Special flight permits may be issued in accordance with
sections 21.197 and 21.199 of the Federal Aviation Regulations (14
CFR 21.197 and 21.199) to operate the airplane to a location where
the requirements of this AD can be accomplished.
(f) The actions shall be done in accordance with McDonnell
Douglas DC-9 Service Bulletin 57-125, Revision 5, dated November 5,
1990; and McDonnell Douglas DC-9 Service Bulletin 57-148, Revision
5, dated November 23, 1992. This incorporation by reference was
approved by the Director of the Federal Register in accordance with
5 U.S.C. 552(a) and 1 CFR part 51. Copies may be obtained from
McDonnell Douglas Corporation, 3855 Lakewood Boulevard, Long Beach,
California 90846, Attention: Technical Publications Business
Administration, Department C1-L51 (2-60). Copies may be inspected at
the FAA, Transport Airplane Directorate, 1601 Lind Avenue, SW.,
Renton, Washington; or at the FAA, Los Angeles Aircraft
Certification Office, Transport Airplane Directorate, 3960 Paramount
Boulevard, Lakewood, California; or at the Office of the Federal
Register, 800 North Capitol Street, NW., suite 700, Washington, DC.
(g) This amendment becomes effective on February 26, 1996.
Issued in Renton, Washington, on January 2, 1996.
Darrell M. Pederson,
Acting Manager, Transport Airplane Directorate, Aircraft Certification
Service.
[FR Doc. 96-187 Filed 1-25-96; 8:45 am]
BILLING CODE 4910-13-P
Complete official Federal Register PDF
FR Doc. 96-1425 National Oceanic and Atmospheric Administration
[Federal Register Volume 61, Number 18 (Friday, January 26, 1996)]
[Rules and Regulations]
[Pages 2457-2458]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-1425]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 672
[Docket No. 951120272-5272-01; I.D. 012296A]
Groundfish of the Gulf of Alaska; Pollock in Statistical Area 63
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Closure.
-----------------------------------------------------------------------
SUMMARY: NMFS is prohibiting directed fishing for pollock in
Statistical Area 63 in the Gulf of Alaska (GOA). This action is
necessary to prevent exceeding the interim specification for pollock in
this area.
EFFECTIVE DATE: 12 noon, Alaska local time (A.l.t.), January 23, 1996,
until superseded by the final 1996 specifications in the Federal
Register.
FOR FURTHER INFORMATION CONTACT: Mary Furuness, 907-586-7228.
SUPPLEMENTARY INFORMATION: The groundfish fishery in the GOA exclusive
economic zone is managed by NMFS according to the Fishery Management
Plan for Groundfish of the Gulf of Alaska (FMP) prepared by the North
Pacific Fishery Management Council under authority of the Magnuson
Fishery Conservation and Management Act. Fishing by U.S. vessels is
governed by regulations implementing the FMP at 50 CFR parts 620 and
672.
The interim specification of pollock total allowable catch in
Statistical Area 63 was established by Interim 1996 Harvest
Specifications (60 FR 61492, November 30, 1995) as 3,250 metric tons
(mt), determined in accordance with Sec. 672.20(c)(1)(ii)(A).
The Director, Alaska Region, NMFS (Regional Director), has
determined, in accordance with Sec. 672.20(c)(2)(ii), that the 1996
interim specification of pollock in Statistical Area 63 soon will be
reached. The Regional Director established a directed fishing allowance
of 3,050 mt, and has set aside the remaining 200 mt as bycatch to
support other anticipated groundfish fisheries. Consequently, NMFS is
prohibiting directed fishing for pollock in Statistical Area 63, until
superseded by the Final 1996 Harvest Specifications of Groundfish in
the Federal Register.
Maximum retainable bycatch amounts for applicable gear types may be
found in the regulations at Sec. 672.20(g) and is exempt from review
under E.O. 12866.
Classification
This action is taken under 50 CFR 672.20 and is exempt from review
under E.O. 12866.
Authority: 16 U.S.C. 1801 et seq.
[[Page 2458]]
Dated: January 22, 1996.
Richard W. Surdi,
Acting Director, Office of Fisheries Conservation and Management,
National Marine Fisheries Service.
[FR Doc. 96-1425 Filed 1-23-96; 4:40 pm]
BILLING CODE 3510-22-P
Complete official Federal Register PDF
FR Doc. 96-1424 Radio Broadcasting Services; Corpus Christi, Three Rivers, TX
[Federal Register Volume 61, Number 18 (Friday, January 26, 1996)]
[Rules and Regulations]
[Page 2454]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-1424]
-----------------------------------------------------------------------
FEDERAL COMMUNICATIONS COMMISSION
47 CFR Part 73
[MM Docket No. 91-193, RM-7717, RM-7822]
Radio Broadcasting Services; Corpus Christi, Three Rivers, TX
AGENCY: Federal Communications Commission.
ACTION: Final rule; petition for reconsideration.
-----------------------------------------------------------------------
SUMMARY: This document denies the petition for reconsideration filed by
Reina Broadcasting, Inc., of the Report and Order, 58 FR 15423 (March
11, 1993), in which the Commission allotted Channel 233C2 at Three
Rivers, Texas, denied Reina's proposal to substitute Channel 234C2 for
234A at Corpus Christi, Texas, and dismissed Reina's alternate
proposal, filed after expiration of the comment period, to substitute
alternate Channel 228C2 at Three Rivers, Texas, and to either
substitute Channel 264A for Channel 228A at Carrizo Springs, Texas, or
delete the channel. With this action, this proceeding is terminated.
EFFECTIVE DATE: January 26, 1996.
FOR FURTHER INFORMATION CONTACT: Victoria M. McCauley, Mass Media
Bureau, (202) 776-1653.
SUPPLEMENTARY INFORMATION: This is a synopsis of the Commission's
Memorandum Opinion and Order, MM Docket No 91-193 adopted December 7,
1995 and released January 19, 1996. The full text of this Commission
decision is available for inspection and copying during normal business
hours in the FCC Reference Center (Room 239), 1919 M Street, NW.,
Washington DC. The complete text of this decision may also be purchased
from the Commission's copy contractors, International Transcription
Service, Inc., (202) 857-3800, 2100 M Street, NW., Suite 140,
Washington, DC 20037.
List of Subjects in 47 CFR Part 73
Radio broadcasting.
Federal Communications Commission.
Douglas W. Webbink,
Chief, Policy and Rules Division, Mass Media Bureau.
[FR Doc. 96-1424 Filed 1-25-96; 8:45 am]
BILLING CODE 6712-01-F
Complete official Federal Register PDF
FR Doc. 96-1422 Radio Broadcasting Services; Grand Junction, CO
[Federal Register Volume 61, Number 18 (Friday, January 26, 1996)]
[Rules and Regulations]
[Pages 2453-2454]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-1422]
-----------------------------------------------------------------------
FEDERAL COMMUNICATIONS COMMISSION
47 CFR Part 73
[MM Docket No. 95-43; RM-8580]
Radio Broadcasting Services; Grand Junction, CO
AGENCY: Federal Communications Commission.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: This document allots Channel 264C1 to Grand Junction,
Colorado, as that community's fifth local FM transmission service, in
response to a petition for rule making filed on behalf of Grand Valley
Public Radio Company, Inc. See 60 FR 19560, April 19, 1995. Coordinates
used for Channel 264C1 at Grand Junction are 30-04-06 and 108-33-00.
With this action, the proceeding is terminated.
DATES: Effective March 4, 1996. The window period for filing
applications will open on March 4, 1996, and close on March 19, 1996.
FOR FURTHER INFORMATION CONTACT: Nancy Joyner, Mass Media Bureau, (202)
418-2180. Questions related to the window application filing process
for Channel 264C1 at Grand Junction, Colorado, should be addressed to
the Audio Services Division, FM Branch, (202) 418-2700.
SUPPLEMENTARY INFORMATION: This is a synopsis of the Commission's
Report and Order, MM Docket No. 95-43, adopted December 11, 1995, and
released January 19, 1996. The full text of this Commission decision is
available for inspection and copying during normal business hours in
the FCC's Reference Center (Room 239), 1919 M Street, NW., Washington,
DC. The complete text of this decision may also be purchased from the
Commission's copy contractors, International Transcription Service,
Inc., (202) 857-3800, located at 1919 M Street, NW., Room 246, or 2100
M Street, NW., Suite 140, Washington, DC 20037.
List of Subjects in 47 CFR Part 73
Radio broadcasting.
Part 73 of title 47 of the Code of Federal Regulations is amended
as follows:
PART 73--[AMENDED]
1. The authority citation for part 73 continues to read as follows:
[[Page 2454]]
Authority: Secs. 303, 48 Stat., as amended, 1082; 47 U.S.C. 154,
as amended.
Sec. 73.202 [Amended]
2. Section 73.202(b), the Table of FM Allotments under Colorado is
amended by adding Channel 264C1 at Grand Junction.
Federal Communications Commission.
John A. Karousos,
Chief, Allocations Branch, Policy and Rules Division, Mass Media
Bureau.
[FR Doc. 96-1422 Filed 1-25-96; 8:45 am]
BILLING CODE 6712-01-F
Complete official Federal Register PDF
FR Doc. 96-1420 Radio Broadcasting Services; Copeland, KS
[Federal Register Volume 61, Number 18 (Friday, January 26, 1996)]
[Rules and Regulations]
[Page 2453]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-1420]
-----------------------------------------------------------------------
FEDERAL COMMUNICATIONS COMMISSION
47 CFR Part 73
[MM Docket No. 95-85; RM-8518]
Radio Broadcasting Services; Copeland, KS
AGENCY: Federal Communications Commission.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Commission, at the request of Greater Plains Christian
Radio, Inc., allots Channel *280C1 to Copeland, Kansas, as a reserved
channel for noncommercial use, to provide the community with an
additional FM service. See 60 FR 32935, June 26, 1995. Channel *280C1
can be allotted to Copeland, Kansas, in compliance with the
Commission's minimum distance separation requirements without the
imposition of a site restriction. The coordinates for Channel *280C1 at
Copeland are 37-32-31 and 100-37-45. With this action, this proceeding
is terminated.
DATES: Effective March 4, 1996. The window period for filing
applications will open on March 4, 1996, and close on March 19, 1996.
FOR FURTHER INFORMATION CONTACT: Pam Blumenthal, Mass Media Bureau,
(202) 418-2180.
SUPPLEMENTARY INFORMATION: This is a synopsis of the Commission's
Report and Order, MM Docket No. 95-85, adopted December 7, 1995, and
released January 19, 1996. The full text of this Commission decision is
available for inspection and copying during normal business hours in
the FCC Reference Center (Room 239), 1919 M Street, NW., Washington,
DC. The complete text of this decision may also be purchased from the
Commission's copy contractor, ITS, Inc., (202) 857-3800, 2100 M Street,
NW., Suite 140, Washington, DC 20037.
List of Subjects in 47 CFR Part 73
Radio broadcasting.
Part 73 of title 47 of the Code of Federal Regulations is amended
as follows:
PART 73--[AMENDED]
1. The authority citation for part 73 continues to read as follows:
Authority: Secs. 303, 48 Stat., as amended, 1082; 47 U.S.C. 154,
as amended.
Sec. 73.202 [Amended]
2. Section 73.202(b), the Table of FM Allotments under Kansas, is
amended by adding Channel *280C1 at Copeland.
Federal Communications Commission.
John A. Karousos,
Chief, Allocations Branch, Policy and Rules Division, Mass Media
Bureau.
[FR Doc. 96-1420 Filed 1-25-96; 8:45 am]
BILLING CODE 6712-01-F
Complete official Federal Register PDF
FR Doc. 96-1414 Mexican Fruit Fly Regulations; Addition of Regulated Areas
[Federal Register Volume 61, Number 18 (Friday, January 26, 1996)]
[Rules and Regulations]
[Pages 2391-2393]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-1414]
========================================================================
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. 18 / Friday, January 26, 1996 / Rules
and Regulations
[[Page 2391]]
DEPARTMENT OF AGRICULTURE
Animal and Plant Health Inspection Service
7 CFR Part 301
[Docket No. 95-089-1]
Mexican Fruit Fly Regulations; Addition of Regulated Areas
AGENCY: Animal and Plant Health Inspection Service, USDA.
ACTION: Interim rule and request for comments.
-----------------------------------------------------------------------
SUMMARY: We are amending the Mexican fruit fly regulations by adding
California to the list of quarantined States and by designating
portions of Los Angeles County and San Diego County, CA, as regulated
areas. This action is necessary on an emergency basis to prevent the
spread of the Mexican fruit fly to noninfested areas of the United
States. This action restricts the interstate movement of regulated
articles from the regulated areas in California.
DATES: Interim rule effective January 22, 1996. Consideration will be
given only to comments received on or before March 26, 1996.
ADDRESSES: Please send an original and three copies of your comments to
Docket No. 95-089-1, 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. 95-089-1. 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.
SUPPLEMENTARY INFORMATION:
Background
The Mexican fruit fly, Anastrepha ludens (Loew), is a destructive
pest of citrus and many other types of fruits. 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 and referred to below as the regulations) were
established to prevent the spread of the Mexican fruit fly to
noninfested areas of the United States. The regulations impose
restrictions on the interstate movement of regulated articles from the
regulated areas. Prior to the effective date of this rule, Texas was
the only State quarantined for the Mexican fruit fly.
Section 301.64-3 provides that the Deputy Administrator of the
Animal and Plant Health Inspection Service (APHIS) for Plant Protection
and Quarantine (PPQ) shall list as a regulated area each quarantined
State, or each portion of a quarantined State, in which the Mexican
fruit fly has been found by an inspector, in which the Deputy
Administrator has reason to believe the Mexican fruit fly is present,
or that the Deputy Administrator considers necessary to regulate
because of its proximity to the Mexican fruit fly or its inseparability
for quarantine enforcement purposes from localities in which the
Mexican fruit fly occurs. Less than an entire quarantined State is
designated as a regulated area only if the Deputy Administrator
determines that:
(1) The State has adopted and is enforcing a quarantine and
regulations that impose restrictions on the intrastate movement of the
regulated articles that are substantially the same as those with
respect to the interstate movement of the articles; and
(2) The designation of less than the entire State as a regulated
area will otherwise be adequate to prevent the artificial interstate
spread of the Mexican fruit fly.
Recent trapping surveys by inspectors of California State and
county agencies and by inspectors of PPQ reveal that portions of Los
Angeles County and San Diego County, CA, are infested with the Mexican
fruit fly. Specifically, on October 26, 1995, inspectors found one male
Mexican fruit fly in a trap in a residential area of Los Angeles
County; and, on November 14, 1995, inspectors discovered four Mexican
fruit flies in traps set at three separate locations between \1/2\ to 1
mile from the site of the October 26th detection. Two of these flies
were mated females, indicating that an infestation exists. In San Diego
County, inspectors found six Mexican fruit flies between November 29,
1995, and December 4, 1995. The Mexican fruit fly is not known to occur
anywhere else in the continental United States, except parts of Texas.
Accordingly, to prevent the spread of the Mexican fruit fly to
other States, we are amending the regulations in Sec. 301.64(a) by
designating California as a quarantined State and in Sec. 301.64-39(c)
by designating as regulated areas portions of Los Angeles County and
San Diego County, CA. The regulated areas are described in the rule
portion of this document.
There does not appear to be any reason to designate any other
portions of the quarantined State of California as a regulated area.
Officials of State agencies of California have begun an intensive
Mexican fruit fly eradication program in the regulated areas in
California. Also, California has adopted and is enforcing regulations
imposing restrictions on the intrastate movement of certain articles
from the regulated areas that are substantially the same as those with
respect to the interstate movement of regulated articles.
Emergency Action
The Administrator of the Animal and Plant Health Inspection Service
has determined that an emergency exists that warrants publication of
this interim rule without prior opportunity for public comment.
Immediate action is necessary to prevent the Mexican fruit fly from
spreading to noninfested areas of the United States.
Because prior notice and other public procedures with respect to
this action are impracticable and 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
[[Page 2392]]
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 restricts the interstate movement of regulated articles
from portions of Los Angeles County and San Diego County, CA. Within
the regulated areas there are approximately 931 small entities that may
be affected by this rule. These include 579 fruit sellers, 259
distributors, 51 nurseries, 30 swap meets, 5 growers, 4 food banks, 2
community gardens, and 1 processor. These 931 entities comprise less
than 1 percent of the total number of similar entities operating in the
State of California. Additionally, these small entities sell regulated
articles primarily for local intrastate, not interstate movement, so
the effect, if any, of this regulation on these entities appears to be
minimal.
The effect on those few entities that do move regulated articles
interstate will be minimized by the availability of various treatments,
that, in most cases, will allow these small entities to move regulated
articles interstate with very little additional cost.
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 12778
This rule has been reviewed under Executive Order 12778, 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.
National Environmental Policy Act
An environmental assessment and finding of no significant impact
have been prepared for the Mexican fruit fly program. The assessment
provides a basis for the conclusion that the methods employed to
eradicate the Mexican fruit fly will not present a risk of introducing
or disseminating plant pests and will not have a significant impact on
the quality of the human environment. Based on the finding of no
significant impact, the Administrator of the Animal and Plant Health
Inspection Service has determined that an environmental impact
statement need not be prepared.
The environmental assessment and finding of no significant impact
were prepared in accordance with : (1) The National Environmental
Policy Act of 1969 (NEPA) (42 U.S.C. 4321 et seq.), (2) Regulations of
the Council on Environmental Quality for implementing the procedural
provisions of NEPA (40 CFR parts 1500-1508), (3) USDA regulations
implementing NEPA (7 CFR part 1b), and (4) APHIS' NEPA Implementing
Procedures (7 CFR part 372).
Copies of the environmental assessment and finding of no
significant impact are available for public inspection 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 copies are requested to
call ahead on (202) 690-2817 to facilitate entry into the reading room.
In addition, copies may be obtained by writing to the individual listed
under FOR FURTHER INFORMATION CONTACT.
Paperwork Reduction Act
This rule contains no 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 [Amended]
2. In Sec. 301.64, paragraph (a) is amended by removing the phrase
``the State of Texas'' and adding ``the States of California and
Texas'' in its place.
3. In Sec. 301.64-3, paragraph (c) is amended by adding an entry
for ``California'' and the description of the regulated areas for Los
Angeles County and San Diego County, CA, to read as follows:
Sec. 301.64-3 Regulated areas.
* * * * *
(c) * * *
California
Los Angeles County. That portion of Los Angeles County in the City
Terrace area bounded by a line drawn as follows: Beginning at the
intersection of U.S. Highway 101 and State Highway 110; then northeast
along State Highway 110 to Via Marisol; then east along Via Marisol to
Monterey Road; then south along Monterey Road to Huntington Drive; then
east along Huntington Drive to Poplar Boulevard; then east along Poplar
Boulevard to Fremont Avenue; then south along Fremont Avenue to Mission
Road; then northeast along Mission Road to Atlantic Boulevard; then
south along Atlantic Boulevard to Interstate Highway 10; then east
along Interstate Highway 10 to Alhambra Avenue; then south along
Alhambra Avenue to Graves Avenue; then east along Graves Avenue to Del
Mar Avenue; then south along Del Mar Avenue to Hill Drive; then
southeast along Hill Drive to Paramount Boulevard; then southwest along
Paramount Boulevard to Montebello Boulevard; then southwest along
Montebello Boulevard to Montebello Way; then west along Montebello Way
to Greenwood Avenue; then southwest along Greenwood Avenue to Gage
Avenue; then west along Gage Avenue to Garfield Avenue; then southwest
along Garfield Avenue to Florence Avenue; then west along Florence
Avenue to Alameda Street; then north along Alameda Street to Vernon
Avenue; then west along Vernon Avenue to Central Avenue; then north
along Central Avenue to Interstate Highway 10; then northwest along
Interstate Highway 10 to Broadway; then northeast along Broadway to
U.S. Highway 101; then northwest along U.S. Highway 101 to the point of
beginning.
San Diego County. That portion of San Diego County in the National
City area bounded by a line drawn as follows: Beginning at the
intersection of State Highway 15 and State Highway 94; then northeast
along State Highway 94 to Federal Boulevard; then northeast
[[Page 2393]]
along Federal Boulevard to San Miguel Avenue; then east along San
Miguel Avenue to Massachusetts Avenue; then south along Massachusetts
Avenue to Canton Drive; then southeast along Canton Drive to Skyline
Drive; then south along Skyline Drive to Jamacha Road; then east along
Jamacha Road to County Highway S17; then south and southwest along
County Highway S17 to Otay Lakes Road; then southeast along Otay Lakes
Road to H Street; then southwest along H Street to Paseo Del Rey; then
south along Paseo Del Rey to Telegraph Canyon Road; then northwest
along Telegraph Canyon Road to Oleander Avenue; then south along
Oleander Avenue to East Naples Street; then west along East Naples
Street to Naples Street; then west along Naples Street to Industrial
Boulevard; then north along Industrial Boulevard to L Street; then west
along L Street to Interstate Highway 5; then north along Interstate
Highway 5 to Harbor Drive; then northwest along Harbor Drive to 32nd
Street; then north along 32nd Street to Wabash Boulevard; then
northeast along Wabash Boulevard to State Highway 15; then north along
State Highway 15 to the point of beginning.
* * * * *
Done in Washington, DC, this 22nd day of January 1996.
Terry L. Medley,
Administrator, Animal and Plant Health Inspection Service.
[FR Doc. 96-1414 Filed 1-25-96; 8:45 am]
BILLING CODE 3410-34-P
Complete official Federal Register PDF
FR Doc. 96-1413 Approval of a Section 182(f) Exemption; Illinois, Indiana, Michigan, and Wisconsin
[Federal Register Volume 61, Number 18 (Friday, January 26, 1996)]
[Rules and Regulations]
[Pages 2428-2438]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-1413]
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[IL99-2-7003, IN46-2-7004, MI33-2-7005, WI47-2-7006; FRL-5402-8]
Approval of a Section 182(f) Exemption; Illinois, Indiana,
Michigan, and Wisconsin
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: As requested by the States of Illinois, Indiana, Michigan, and
Wisconsin in a July 13, 1994 submittal pursuant to section 182(f)(3) of
the Clean Air Act (CAA or the Act), the EPA is granting exemptions from
the Reasonably Available Control Technology (RACT) and New Source
Review (NSR) requirements for major stationary sources of Oxides of
Nitrogen (NOX) and from vehicle Inspection/Maintenance (I/M) and
general conformity requirements for NOX for ozone nonattainment
areas within the Lake Michigan Ozone Study (LMOS) modeling domain,
which includes portions of the States of Illinois, Indiana, Michigan,
and Wisconsin. The EPA is also granting exemptions from transportation
conformity requirements for NOX for ozone nonattainment areas
classified as marginal or transitional within the LMOS modeling domain.
The EPA is approving the exemptions based on a demonstration that
additional NOX reductions would not contribute to attainment of
the National Ambient Air Quality Standard (NAAQS) for ozone within the
LMOS modeling domain. The EPA is not taking final action at this time
on the granting of exemptions from the transportation conformity
requirements of the CAA for ozone nonattainment areas classified as
moderate or above in the LMOS modeling domain. The continued approval
of these exemptions is contingent on the results of the final ozone
attainment demonstrations and plans. These plans are expected to be
submitted by mid-1997 and to incorporate the results of the Ozone
Transport Assessment Group process. The attainment plans will supersede
the initial modeling information which is the basis for the waiver EPA
is granting in this document. To the extent the attainment plans
include NOX controls on certain major stationary sources in the
LMOS ozone nonattainment areas, EPA will remove the NOX waiver for
those sources. To the extent the final plans achieve attainment of the
ozone standard without additional NOX reductions from certain
sources, the NOX emissions control exemption would continue for
those sources. EPA's rulemaking action to reconsider the initial
NOX waiver may occur simultaneously with rulemaking action on the
attainment plans.
DATES: This final rule will be effective February 26, 1996.
ADDRESSES: Copies of the exemption request, public comments and EPA's
responses are available for inspection at the following address: United
States Environmental Protection Agency, Region 5, Air and Radiation
Division, 77 West Jackson Boulevard, Chicago, Illinois 60604.
FOR FURTHER INFORMATION CONTACT: Edward Doty, Regulation Development
Section (AR-18J), Regulation Development Branch, Air and Radiation
Division, United States Environmental Protection Agency, Region 5, 77
West Jackson Boulevard, Chicago, Illinois 60604, Telephone Number (312)
886-6057.
SUPPLEMENTARY INFORMATION:
I. Background Information
On July 13, 1994, the States of Illinois, Indiana, Michigan, and
Wisconsin submitted a petition to the EPA requesting that the ozone
nonattainment areas within the LMOS modeling domain be exempted from
requirements to implement NOX controls pursuant to section 182(f)
of the Act. The exemption request is based on modeling demonstrating
that additional NOX emission controls within the nonattainment
areas will not contribute
[[Page 2429]]
to attainment of the ozone NAAQS within the LMOS modeling domain.
On March 6, 1995, EPA published a rulemaking proposing approval of
the NOX exemption petition and specifically identifying the
Counties or areas covered by the exemption. During the 30 day public
comment period, EPA received a number of comments favoring or objecting
to the proposed approval. In addition to these comments, the EPA also
received adverse comments objecting to any NOX control waiver
within the United States, with the commenters requesting that these
comments be addressed in all EPA rulemakings dealing with such emission
control waivers.
II. Public Comments
The following discussion summarizes the comments received regarding
the States' petition and/or EPA's proposed rulemaking and presents
EPA's responses to these comments.
Comment: A number of comments supporting the proposed rulemaking
were received from organizations representing various industrial
groups, local planning organizations, and the States themselves. One
commenter, who generally supported the proposed rulemaking, noted that
the EPA proposed to reverse its decision on the petition if subsequent
modeling results supported such a reversal. The commenter raised a
concern that the EPA should only reverse its decision to approve the
petition if well documented modeling results are available clearly
indicating the need for such a reversal.
Response: The favorable comments support the logic used in the
proposed rulemaking.
With regard to the concern over the quality of the modeling results
needed to reverse this decision, it should be noted that such modeling
results will be well documented and are expected to be based on
validated modeling. The States involved in the LMOS are conducting a
number of additional modeling analyses (subsequent to the preparation
of the NOX waiver request) to assess the impacts of emission
controls on peak ozone concentrations and on ozone concentrations
transported out of the modeling domain (long range ozone transport has
become a significant issue in the development of ozone demonstrations
of attainment in the eastern United States). Additional modeling
analyses are required to support the States' demonstrations of
attainment, which have not been completed. These modeling analyses are
well documented and are now based on a modeling system which has been
accepted by the EPA as being validated for the LMOS modeling domain.
Any conclusion showing the need for NOX controls will be well
supported by the modeling.
It should be noted that the modeling used to support the NOX
waiver petition was not based initially on validated modeling. The
modeling system and its base year inputs were modified to a validated
form subsequent to the submittal of the petition. Nonetheless, the
``signals'' of the modeling results regarding Volatile Organic Compound
(VOC) controls versus NOX controls have not changed with the
validation of the modeling system. The modeling results continue to
show that NOX emission controls in the ozone nonattainment areas
will not contribute to reduction of peak ozone levels within the LMOS
modeling domain, and may actually increase peak ozone levels near the
major urban areas.
Comment: A commenter, who supports the proposed NOX exemption,
considers the exemption, through section 182(f), to also increase the
major source threshold relating to federal operating permit programs
from 25 tons/year (tpy) to 100 tpy (this comment is assumed to apply to
the ozone nonattainment areas classified as severe).
Response: The commenter is correct. Based on guidance contained in
40 CFR Part 70.2 (subparagraph (3)(1) under the ``major source''
definition), the major source threshold for federal operating programs
would be revised to 100 tpy, potential to emit, in the areas covered by
the NOX waiver. In addition, for new source considerations, it
should be noted that the waived areas should be considered to be
covered by Prevention of Significant Deterioration requirements, with a
control source size threshold of 250 tpy, potential to emit, for
NOX rather than by nonattainment area new source requirements.
Comment: A commenter notes that, in addition to modeling data
supporting approval of the petition, monitoring data were collected
during the 1991 LMOS field study which also support the approval of the
NOX waiver. The combination of modeling data and monitoring data
meet the requirements for a section 182(f) exemption specified in EPA's
guidance documents titled: ``State Implementation Plan; Nitrogen Oxides
Implementation of Title I of the Clean Air Act Amendments of 1990'' (57
FR 55628, November 25, 1992); and the ``Guideline for Determining
Applicability of Nitrogen Oxide Requirement under Section 182(f)''
(December 1993).
Response: Although the commenter did not specifically reference the
data from which this conclusion was drawn, EPA acknowledges that data,
such as concentrations of non-methane hydrocarbons and NOX and
derived/monitored ozone production potentials of air parcels, collected
for the urban source areas during the 1991 field study support the
approval of the NOX waiver. It is noted, however, that the primary
basis for the approval of the N0x waiver is the modeling results
submitted in support of the waiver. The 1991 field data by themselves
may not be an adequate support for the waiver since these data are
limited in nature and do not present a complete picture of the impacts
of NOX controls on LMOS modeling domain peak ozone concentrations.
Comment: Commenters argue that NOX exemptions are provided for
in two separate parts of the Act, in sections 182(b)(1) and 182(f).
Because the NOX exemption tests in sections 182(b)(1) and
182(f)(1) include language indicating that action on such requests
should take place ``when [EPA] approves a plan or plan revision,''
these commenters conclude that all NOX exemption determinations by
the EPA, including exemption actions taken under the petition process
established by section 182(f)(3), must occur during consideration of an
approvable attainment or maintenance plan, unless the area has been
redesignated as attainment. The commenters also argue that even if the
petition procedures of section 182(f)(3) may be used to relieve areas
of certain NOX requirements, exemptions from the NOX
conformity requirements must follow the process provided in section
182(b)(1), since this is the only provision explicitly referenced by
section 176(c), the Act's conformity provisions.
Response: Section 182(f) contains very few details regarding the
administrative procedures for acting on NOX exemption requests.
The absence of specific guidelines by Congress leaves the EPA with
discretion to establish reasonable procedures consistent with the
requirements of the Administrative Procedure Act (APA).
The EPA disagrees with the commenters regarding the process for
considering NOX exemption requests under section 182(f), and
instead believes that sections 182(f)(1) and 182(f)(3) provide
independent procedures by which the EPA may act on NOX exemption
requests. The language in section 182(f)(1), which indicates that the
EPA should act on NOX exemptions in conjunction with action on a
plan or a plan revision, does not appear in section 182(f)(3). While
section 182(f)(3) references section
[[Page 2430]]
182(f)(1), the EPA believes that this reference encompasses only the
substantive tests in paragraph (1) [and by extension, paragraph (2)],
not the procedural requirement that the EPA act on exemptions only when
acting on State Implementation Plans (SIPs). Additionally, section
182(f)(3) provides that ``person[s]'' [which section 302(e) of the Act
defines to include States] may petition for NOX exemptions ``at
any time,'' and requires the EPA to make its determination within six
months of the petition's submission. These key differences lead EPA to
believe that Congress intended the exemption petition process of
paragraph (3) to be distinct and more expeditious than the longer plan
revision process intended under paragraph (1).
With respect to major stationary sources, section 182(f) requires
States to adopt NOX RACT and NSR rules, unless exempted. These
rules were generally due to be submitted to the EPA by November 15,
1992. Thus, in order to avoid the CAA sanctions, areas seeking a
NOX exemption would have needed to submit this exemption request
for EPA review and rulemaking action several months before November 15,
1992. In contrast, the CAA specifies that the attainment demonstrations
were not due until November 1993 or 1994 (and EPA may take 12 to 18
months to approve or disapprove the demonstrations). For marginal ozone
nonattainment areas (subject to NOX NSR), no attainment
demonstrations are called for in the CAA. For areas seeking
redesignation to attainment of the ozone NAAQS, the CAA does not
specify a deadline for submittal of maintenance demonstrations (in
reality, EPA would generally consider redesignation requests without
accompanying maintenance plans to be unacceptable). Clearly, the CAA
envisions the submittal of and EPA action on NOX exemption
requests, in some cases, prior to submittal of attainment or
maintenance demonstrations.
With respect to the comment that section 182(b)(1) is the
appropriate authority for granting interim-period transportation
conformity NOX exemptions, EPA agrees with the commenters and has
published an interim final rule that changes the transportation
conformity rule's reference to section 182(b)(1) as the correct
authority under the Act for waiving the NOX build/no-build and
less-than-1990 emissions tests for certain areas. See 60 FR 44762 (A
related proposed rule, 60 FR 44790, published on the same day, invited
public comment on how the Agency plans to implement section 182(b)(1)
transportation conformity NOX exemptions. That proposal has been
subsequently finalized. See 60 FR 57179). However, EPA also notes that
section 182(b)(1), by its terms, only applies to moderate and above
ozone nonattainment areas. Consequently, EPA believes that the interim-
reductions requirements of section 176(c)(3)(A)(iii), and hence the
authority provided in section 182(b)(1) to grant relief from those
interim-reduction requirements, apply only with respect to those areas
that are subject to section 182(b)(1). EPA intends to continue to apply
the transportation conformity rule's build/no-build and less-than-1990
emissions tests for purposes of implementing the requirements of
section 176(c)(1), and EPA intends to continue to provide relief from
those requirements under section 182(f). In addition, because general
federal actions are not subject to section 176(c)(3)(A)(iii), which
explicitly references section 182(b)(1), EPA will also continue to
offer relief under section 182(f)(3) from the applicable NOX
requirements of the general conformity rule.
In order to demonstrate conformity, transportation-related federal
actions that are taken in ozone nonattainment areas not subject to
section 182(b)(1) and, hence, not subject to section 176(c)(3)(A)(iii)
must still be consistent with the criteria specified under section
176(c)(1). Specifically, these actions must not, with respect to any
standard, cause or contribute to new violations, increase the frequency
or severity of existing violations, or delay attainment. In addition,
such actions must comply with the relevant requirements and milestones
contained in the applicable state implementation plan, such as
reasonable further progress schedules, assumptions specified in the
attainment or maintenance demonstrations, numerical emission limits, or
prohibitions. EPA believes that the build/no-build and less-than-1990
emissions tests provide an appropriate basis for such areas to
demonstrate compliance with the above criteria.
As noted earlier, EPA intends to continue to offer relief under
section 182(f) from the interim NOX requirements of the conformity
rules that would apply under section 176(c)(1) for the areas not
subject to section 182(b)(1) in the manner described above. EPA
believes this approach is consistent both with the way NOX
requirements in ozone nonattainment areas are treated under the Act
generally, and under section 182(f) in particular. The basic approach
of the Act is that NOX reductions should apply when beneficial to
an area's attainment goals, and should not apply when unhelpful or
counterproductive. Section 182(f) reflects this approach but also
includes specific substantive tests which provide a basis for EPA to
determine when NOX requirements should not apply. There is no
substantive difference between the technical analysis required to make
an assessment of NOX impacts on attainment in a particular area
whether undertaken with respect to mobile source or stationary source
NOX emissions. Moreover, where EPA has determined that NOX
reductions will not benefit attainment or would be counterproductive in
an area, the EPA believes it would be unreasonable to insist on
NOX reductions for purposes of meeting reasonable further progress
or other milestone requirements. Thus, even as to the conformity
requirements of section 176(c)(1), EPA believes it is reasonable and
appropriate, first, to offer relief from the applicable NOX
requirements of the general and transportation conformity rules in
areas where such reductions would not be beneficial and, second, to
rely in doing so based on the exemption tests provided in section
182(f).
For moderate and above ozone nonattainment areas which are relying
on modeling data in petitioning for a transportation conformity
NOX exemption, the proposed change affects the process for
applying for such waivers. Unlike section 182(f)(3), section 182(b)(1)
requires that EPA approve a NOX waiver (i.e., determine that
additional reductions of NOX would not contribute to attainment)
as part of a SIP revision. Thus, under section 182(b)(1), petitions for
transportation conformity NOX waivers for areas subject to that
section must be submitted as formal SIP revisions by the Governor (or
designee) following a public hearing. As explained previously, EPA will
continue to process and approve, under section 182(f)(3), conformity
NOX waivers for areas not subject to section 182(b)(1) without
public hearings or submission by the Governor. Finally, as noted
earlier, the NOX provisions of the general conformity rule would
not be affected by this proposal. A NOX waiver under section
182(f) removes the NOX general conformity requirements entirely
and would continue to do so. The Clean Air Act's provision for
transportation conformity NOX waivers stems from section
176(c)(3)(A)(iii), which addresses only transportation conformity, and
not general conformity. Therefore, the statutory authority for general
conformity NOX waivers is not
[[Page 2431]]
required to be section 182(b) for any areas and may continue to be
section 182(f) for all areas.
It should be noted that EPA is taking no final action on a NOX
exemption for transportation conformity for ozone nonattainment areas
classified as moderate and above in the petition covered by this
rulemaking. The States of Illinois, Indiana, Michigan, and Wisconsin
may seek a transportation conformity NOX exemption for such areas
through formal SIP revisions pursuant to section 182(b)(1) of the Act
(Illinois and Wisconsin have submitted such SIP revisions, which are
currently being reviewed by the EPA).
Comment: Commenters argue that waiver of NOX control
requirements is unlawful if such a waiver would impede attainment and
maintenance of the ozone standard in downwind areas.
Response: As a result of these comments, the EPA reevaluated its
position on this issue and has revised the previously issued guidance.
See Memorandum, ``Section 182(f) Nitrogen Oxides (NOX)
Exemptions--Revised Process and Criteria'' dated February 8, 1995, for
John Seitz's signature. As described in this memorandum, EPA intends to
use its authority under section 110(a)(2)(D) to require a State to
reduce NOX emissions from stationary and/or mobile sources where
there is evidence, such as photochemical grid modeling, showing that
the NOX emissions could contribute significantly to nonattainment
in, or interfere with maintenance by, any other State or in another
nonattainment area within the same State. This action would be
independent of any action taken by EPA on a NOX exemption request
under section 182(f). That is, EPA action to grant or deny a NOX
exemption request under section 182(f) for any area would not shield
that area from EPA action to require NOX emission reductions, if
necessary, under section 110(a)(2)(D).
Significant new modeling analyses are being conducted by the Lake
Michigan Air Directors Consortium (LADCO) (the technical and functional
directors of the Lake Michigan Ozone Study and the Lake Michigan Ozone
Control Program, including representatives of the four LMOS States and
the EPA), EPA and other agencies as part of the Ozone Transport
Assessment Group (OTAG) process. The OTAG process is a consultative
process among the eastern States and EPA. The OTAG process, which ends
at the close of 1996, assesses national and regional emission control
strategies using improved modeling techniques. The goal of the OTAG
process is for EPA and the affected States to reach consensus on the
additional regional and national emission reductions that are needed
for attainment of the ozone standard. Based on the results of the OTAG
process, States are expected to submit by mid-1997 attainment plans
which show attainment of the ozone standard through local, regional,
and national controls.
The OTAG plans to complete additional modeling between now and
September 1996 using emissions data and strategies currently being
developed among OTAG workgroups. These new analyses will improve the
information available on NOX and VOC impacts on ozone
concentrations both in the LMOS area and over the eastern half of the
United States. These analyses will for example, provide more accurate
boundary conditions for the LMOS area analyses; this provides greater
accuracy in both the attainment plan and in the decision regarding
NOX reductions contribution to attainment.
In light of the modeling completed thus far and considering the
importance of the OTAG process and attainment plan modeling efforts,
EPA is granting this waiver on a contingent basis. As the OTAG modeling
results and control recommendations are completed in 1996, this
information will be incorporated into the attainment plans being
developed by the LADCO States. When these attainment plans are
submitted to EPA in mid-1997, these new modeling analyses will be
reviewed to determine if the NOX waiver should be continued,
altered, or removed.
The attainment plans will supersede the initial modelling results
which are the basis for the waiver which EPA is granting in this rule.
To the extent the attainment plans include NOX controls on certain
major stationary sources in the LMOS ozone nonattainment areas, EPA
will remove the NOX waiver for those sources. To the extent the
plans achieve attainment without additional NOX reductions from
certain sources, the NOX reductions would be considered excess
reductions and, thus, the exemption would continue for those sources.
EPA's rulemaking action to reconsider the initial NOX waiver may
occur simultaneously with rulemaking action on the attainment plans.
Comment: Comments were received regarding the scope of exemption of
areas from the NOX requirements of the conformity rules. The
commenters argue that such exemptions waive only the requirements of
section 182(b)(1) to contribute to specific annual reductions; not the
requirement that conformity SIPs contain information showing the
maximum amount of motor vehicle NOX emissions allowed under the
transportation conformity rules and, similarly, the maximum allowable
amounts of any such NOX emissions under the general conformity
rules. The commenters admit that, in prior guidance, EPA has
acknowledged the need to amend a drafting error in the existing
transportation conformity rules to ensure consistency with motor
vehicle emissions budgets for NOX, but want EPA, in actions on
NOX exemptions, to explicitly affirm this obligation and to also
avoid granting waivers until a budget controlling future NOX
increases is in place.
Response: As explained previously, EPA's transportation conformity
rule originally provided for a NOX waiver if an area received a
section 182(f) exemption. The EPA published amendments to the
transportation conformity rule in a final rule on November 14, 1995 (60
FR 57179) which addresses the issue of conformity to NOX budgets
in SIPs when a NOX waiver for transportation conformity has been
approved. The final rule is based on an August 29, 1995 (60 FR 44790)
proposed rule and comments which were received regarding that proposal.
The final rule requires consistency with NOX motor vehicle
emissions budgets in control strategy SIPs regardless of whether a
NOX waiver has been granted. The NOX build/no-build tests and
less-than-1990 tests, however, no longer apply to ozone nonattainment
areas receiving a NOX waiver. Furthermore, some flexibility is
possible for areas that have been issued a NOX waiver based on air
quality modeling data. This flexibility is described in the notice of
final rulemaking (60 FR 57183). The NOX emission budget provisions
of the revised rules will be effective 90 days after the date of the
final rule (November 14, 1995).
Comment: Commenters argue that the Act does not authorize any
waiver of the NOX reduction requirements until conclusive evidence
exists that such reductions are counterproductive.
Response: EPA does not agree with this comment since it ignores the
Congressional intent as evidenced by the plain language of section
182(f), the structure of the Title I ozone subpart as a whole, and
relevant legislative history. By contrast, in developing and
implementing its NOX exemption policies, EPA has sought an
approach that reasonably accords with that intent. Section 182(f), in
addition to imposing control requirements on major stationary sources
of NOX similar to those that apply for sources of VOC, also
provides for an exemption (or limitation) from application of these
requirements if, under one of several
[[Page 2432]]
tests, EPA determines that in certain areas NOX reductions would
generally not be beneficial towards attainment of the ozone standard.
In section 182(f)(1), Congress explicitly conditioned action on
NOX exemptions on the results of an ozone precursor study required
under section 185B of the Act. Because of the possibility that reducing
NOX in an area may either not contribute to ozone attainment or
may cause the ozone problem to worsen, Congress included attenuating
language, not just in section 182(f), but throughout Title I of the
Act, to avoid requiring NOX reductions where such would not be
beneficial or would be counterproductive. In describing these various
ozone provisions, including section 182(f), the House Conference
Committee Report states in the pertinent part: ``[T]he Committee
included a separate NOX/VOC study provision in section [185B] to
serve as the basis for the various findings contemplated in the
NOX provisions. The Committee does not intend NOX reduction
for reduction's sake, but rather as a measure scaled to the value of
NOX reductions for achieving attainment in the particular ozone
nonattainment area.'' H.R. Rep. No. 490, 101st Cong., 2d Sess. 257-258
(1990).
As noted in response to an earlier comment, the command in section
182(f)(1) that EPA ``shall consider'' the 185B report taken together
with the timeframe the Act provides for completion of the report and
for acting on NOX exemption petitions clearly demonstrate that
Congress believed the information in the completed section 185B report
would provide a sufficient basis for EPA to act on NOX exemption
requests, even absent the additional information that would be included
in affected areas' attainment or maintenance demonstrations.
While there is no specific requirement in the Act that EPA actions
granting NOX exemption requests must await ``conclusive
evidence,'' as the commenters argue, there is also nothing in the Act
to prevent EPA from revisiting an approved NOX exemption if
warranted by additional, current information.
In addition, the EPA believes, as described in EPA's December 1993
guidance, that section 182(f)(1) of the Act provides that the new
NOX requirements shall not apply (or may be limited to the extent
necessary to avoid excess reductions) if the Administrator determines
that any one of the following tests is met:
(1) in any area, the net air quality benefits are greater in the
absence of NOX reductions from the sources concerned;
(2) in nonattainment areas not within an ozone transport region,
additional NOX reductions would not contribute to ozone attainment
in the area; or
(3) in nonattainment areas within an ozone transport region,
additional NOX reductions would not produce net ozone air quality
benefits in the transport region. Based on the plain language of
section 182(f), EPA believes that each test provides an independent
basis for a full or limited NOX exemption.
Only the first test listed above is based on a showing that
NOX reductions are ``counter productive.'' If one of the tests is
met (even if another test is failed or not applied), the section 182(f)
NOX requirements would not apply or, under the excess reductions
provision, a portion of these requirements would not apply.
Comment: Commenters argue that, while NOX controls may be less
beneficial than VOC-only controls in reducing ozone concentrations in
some areas of the Lake Michigan region on some days, the States have
not demonstrated that VOC-only controls will sufficiently reduce ozone
concentrations for the majority of episodes, particularly in areas
farther downwind.
Response: Several modeling and data analyses were performed by the
States and LADCO to examine the relative benefits of VOC versus
NOX emission controls. The modeling analyses included emissions
sensitivity tests for several different basecase scenarios, including:
(1) an original base period emissions inventory; (2) increased VOC
emissions in the base period inventory (higher VOC/NOX ratios);
(3) increased base period VOC/NOX ratios through either increased
VOC emissions or decreased NOX emissions; and (4) differences in
photochemistry photolysis rates as applied in the Urban Airshed Model--
Version IV (UAM-IV) (the photochemical dispersion model generally
accepted and supported by the EPA) and in UAM-V (the photochemical
dispersion model approved by the EPA for use in the LMOS).
Despite differences in the absolute and relative amounts of VOC and
NOX emissions in the sensitivity analyses, the analyses found that
the modeled domain-wide peak ozone concentration, the areal coverage of
modeled ozone concentrations exceeding 120 parts per billion (ppb), and
the number of hours with modeled ozone concentrations exceeding 120 ppb
decreased in response to VOC emission reductions and increased in
response to NOX emission reductions (up to more than 60 percent
controls for some episode analysis days) for all modeled episodes.
VOC and NOX emission reductions were found to produce
different impacts spatially. In and downwind of major urban areas,
within the ozone nonattainment areas, VOC reductions were effective in
lowering peak ozone concentrations, while NOX emission reductions
resulted in increased peak ozone concentrations. Farther downwind,
within attainment areas, VOC emissions reductions became less effective
for reducing ozone concentrations, while NOX emission reductions
were effective in lowering ozone concentrations. It must be noted,
however, that the magnitude of ozone decreases farther downwind due to
NOX emission reductions was less than the magnitude of ozone
increases in the ozone nonattainment areas as a result of the same
NOX emission reductions.
Analyses of ambient data by LMOS contractors provided results which
corroborated the modeling results. These analyses identified areas of
VOC- and NOX-limited conditions (VOC-limited conditions would
imply a greater sensitivity of ozone concentrations to changes in VOC
emissions. The reverse would be true for NOX-limited conditions.)
and tracked the ozone and ozone precursor concentrations in the urban
plumes as they moved downwind. The analyses indicated VOC-limited
conditions in the Chicago/Northwest Indiana and Milwaukee areas and
NOX-limited conditions further downwind. These results imply that
VOC controls in the Chicago/Northwest Indiana and Milwaukee areas would
be more effective at reducing peak ozone concentrations within the
severe ozone nonattainment areas.
The consistency between the modeling results and the ambient data
analysis results for all episodes with joint data supports the view
that the UAM-V modeling system developed in the LMOS may be used to
investigate the relative merits of VOC versus NOX emission
controls. The UAM-V results for all modeled episodes point to the
benefits of VOC controls versus NOX controls in reducing the
modeled domain peak ozone concentrations.
Comment: Commenters argue that the UAM-V modeling system is
experimental and untested and has not yet undergone extensive peer
review by independent experts, unlike the Regional Oxidant Model (ROM)
supported by the EPA. The EPA should review the ROM results for the
episodes modeled in the LMOS to show
[[Page 2433]]
consistency between the ROM results and those for UAM-V.
Response: Even though the UAM-V modeling system is relatively new,
it has undergone external review. LADCO supported an external review of
the computer code used in the modeling system and an external
evaluation of model performance in the Lake Michigan region. Modeling
results show that the system, as it is currently being used for control
strategy analyses, produces ozone concentrations which meet EPA-
established criteria for adequate model performance.
Direct comparisons of ROM and UAM-V results must be conducted with
caution and may produce conflicting results even though both modeling
systems are performing adequately. The UAM-V modeling system is
theoretically more complete and incorporates improved scientific
principles and more area-specific input data. ROM, on the other hand,
is a simpler modeling system with lower spatial resolution, more
uncertain emission estimates, and no special treatment of
meteorological phenomena, such as lake-breeze effects (critical factors
in the Lake Michigan area), and individual source plumes for large
sources. These differences in model formulation and data input
resolution as well as differences in output resolution may preclude
direct comparisons of the two models. It should be noted, that such a
comparison may be attempted in the near future because UAM-V may be
applied to a larger domain to assess the impacts of long range
transport of ozone and ozone precursors.
Comment: Commenters state that the EPA must rely on the recent
National Academy of Sciences (NAS) report in its review of NOX
waivers. The commenters pointed out that the NAS report found that to
reduce transported ozone, NOX reductions are needed.
Response: The NAS report and EPA's companion report both support
the conclusion that, as a general matter for ozone nonattainment areas
across the country, NOX reductions in addition to VOC reductions
will be needed to achieve attainment. This general conclusion, however,
must be assessed in the context of the more detailed analysis provided
in those same reports. For example, the NAS report notes that NOX
reductions can have either a beneficial or detrimental effect on ozone
concentrations, depending on the locations and emission rates of VOC
and NOX sources in a region. The effect of NOX reductions
depends on the local VOC/NOX ratio and a variety of other factors.
In its report issued pursuant to section 185B of the Act, EPA stated
that ``[a]pplication of gridded photochemical models on a case by case
basis is required to determine the efficacy of NOX controls,
because the ozone response to precursor reductions is area specific.''
The analyses performed in the Lake Michigan region demonstrate a
local disbenefit from NOX control in the urban nonattainment
areas. Those same analyses suggest there would be ozone benefits
experienced farther downwind from NOX control in the urban
nonattainment areas. LADCO acknowledges that NOX controls in the
LMOS modeling domain may be needed ultimately to reduce ozone transport
in the eastern United States. Nonetheless, the modeling results show
that, due to the ozone reduction disbenefits associated with NOX
reductions for the ozone nonattainment areas in the LMOS domain, these
areas meet the test under section 182(f)(1)(A) of the Act required to
support a waiver from the NOX requirements of section 182(f).
Comment: Commenters believe that NOX emission reductions will
not only reduce transported ozone, but will also improve visibility,
especially in downwind Class I areas.
Response: The NOX control waiver request was submitted in
conjunction with the preparation of a four-State ozone control plan. To
this end, the focus is on the local ozone problem in the Lake Michigan
region. Other air pollution problems will be dealt with as part of
separate regulatory activities.
Comment: Commenters argue that the burden of proof is on the States
and LADCO to demonstrate that NOX reductions will not be
beneficial over the entire Lake Michigan region. It was the explicit
intent of Congress that NOX reductions are to be presumed to be
beneficial unless demonstrated otherwise.
Response: Modeling and data analyses addressed in the States'
NOX waiver request demonstrate the positive benefits of VOC
control in the major urban areas and downwind in the areas of highest
ozone concentrations. These analyses also show the negative effects of
NOX control in these same ozone nonattainment areas, and suggest
positive benefits from NOX control farther downwind in attainment
areas. In other words, the benefits resulting from NOX control are
modelled to occur in areas that experience, based on modeling and
monitoring data, ozone concentrations well below the ozone standard
even prior to the implementation of emission controls. Consequently, as
required under section 182(f), the States have demonstrated the
disbenefits of implementing NOX emission controls in terms of
greater domain-wide peak ozone concentrations throughout the LMOS
modeling domain. Since these States are relying on the section
182(f)(1)(4) ``contribute to attainment'' test, they do not also need
to demonstrate NOX reduction benefits over the entire Lake
Michigan region as the commenters claim.
As noted above, the EPA believes, as described in EPA's December
1993 guidance, that section 182(f)(1) of the Act provides that the new
NOX requirements shall not apply if the Administrator determines
that any one of the following tests is met:
(1) in any area, the net air quality benefits are greater in the
absence of NOX reductions from the sources concerned;
(2) in nonattainment areas not within an ozone transport region,
additional NOX reductions would not contribute to ozone attainment
in the area; or
(3) in nonattainment areas within an ozone transport region,
additional NOX reductions would not produce net ozone air quality
benefits in the transport region. Based on the plain language of
section 182(f) and the modeling results supplied with the LMOS States'
NOX waiver request, the EPA believes these States have met the
requirements of test (2) above since the States have demonstrated that
across-the-board NOX controls in the LMOS ozone nonattainment
areas will interfere with the attainment of the ozone standard in these
nonattainment areas. Based on the scheme provided by Congress under the
Act, it is not necessary for the States to also demonstrate the lack of
ozone benefits from NOX controls everywhere within the entire Lake
Michigan region.
As a separate matter and as noted above, the States, LADCO, and the
EPA are conducting additional studies on the impact of ozone precursor
(including NOX) emission reductions in areas outside of the LMOS
ozone nonattainment areas on downwind ozone concentrations. These
studies, in part, will consider the LMOS nonattainment areas as
downwind areas to assess the impact of upwind emissions controls on
ozone and ozone precursor transport into these areas.
Comment: Commenters argue that LADCO's statistical comparisons
provide an incomplete evaluation of model performance and do not assess
the model's ability to accurately predict the impact of VOC versus
NOX control.
Response: LADCO, through a September 1994 model evaluation report,
has documented a thorough evaluation of the modeling system
performance. The model evaluation, which is based on an ideal model
[[Page 2434]]
evaluation process proposed by a number of technical experts 1,
includes the following elements:
\1\ ``A Conceptual Framework for Evaluating the Performance of
Grid-Based Photochemical Air Quality Simulation Models'', Roth,
Reynolds, Tesche, and Dennis (1991).
---------------------------------------------------------------------------
(1) Evaluations of the scientific formulation of the model;
(2) Assessment of the fidelity of the computer codes to scientific
formulation, governing equations, and numerical solution procedures;
(3) evaluation of the predictive performance of the individual
process modules and preprocessor modules;
(4) evaluation of the full model's predictive performance;
(5) application of sensitivity tests to assure conformance of the
model with known or expected behavior;
(6) application of comparative modeling; and
(7) implementation of quality control/quality assurance activities.
The September 1994 model evaluation report addressed all of these
elements for the modeling system used in the LMOS. In addition, the
report also discussed several analyses which were performed
specifically to assess the reliability of the model's response to VOC
and NOX emission reductions (see response to comment above
concerning the response of the model to VOC-only controls).
The model evaluation conducted for the LMOS modeling system
examined performance over as wide a range of emission densities as
possible (both spatial and temporal ranges were considered), considered
topographic and land use uncertainties, and evaluated the impacts of
variations in meteorology. Demonstration of acceptable model
performance over this range of conditions reflects correct
representation of the governing chemical and physical processes. It is,
therefore, reasonable to assume that the model will respond
realistically irrespective of emission strengths of VOC versus
NOX.
Comment: Commenters argue that LADCO has failed to conduct
additional analyses of model performance which provide a better test of
VOC-NOX sensitivity [e.g., analyses of afternoon concentrations of
total reactive nitrogen (NOy)]. An examination of ambient NOX
concentrations over Lake Michigan clearly show NOX-limited
conditions (i.e., NOX control should be beneficial for reducing
ozone concentrations) and, further, that the modeled NOX
concentrations are overestimated, which would cause the model to
incorrectly identify VOC control as being preferential to NOX
control. NOX concentrations, as predicted by the model to occur
over Lake Michigan (i.e., 90 parts per billion), are unlikely to occur
anywhere other than in urban centers.
Response: The September 1994 model evaluation report submitted by
LADCO does include the type of analysis suggested by the commenters.
This analysis of predicted and measured NO2 concentrations
(NOy concentrations were not measured making evaluation of modeled
results for NOy impossible. NOX is assumed to be primarily
NO2 at the peak ozone times and locations.) at the time and
location of maximum ozone concentration for each day shows no
discernible bias in the model predictions.
The September 1994 model evaluation report also includes a general
assessment of model performance for NO2. Rather than focusing on
just one or two days, as was done by the commenters, the evaluation
considered all of the modeled high ozone days. The results for all high
ozone days demonstrate that model performance overall for NO2 is
good.
The magnitude of the predicted NOX concentrations over Lake
Michigan, as cited by the commenters, is not correct. The model
predicted NO2 concentrations over Lake Michigan on the order of 50
parts per billion or less. NOX measurements by the LMOS aircraft
over Lake Michigan were on the order of 30--50 parts per billion, in
good agreement with the model's predicted concentrations (NOX over
Lake Michigan is primarily NO2).
Comment: Commenters argue that VOC emissions are likely
underestimated in the emission inventory used for the LMOS modeling,
which would cause a bias in the model towards favoring VOC control.
Also, LADCO's finding that its VOC inventory may be low by only 30
percent conflicts with studies elsewhere which suggest a high degree of
underestimation.
Response: Several methods were used by LADCO to evaluate the LMOS
emissions inventory, including comparisons of ambient to emissions-
based nonmethane organic compound to NOX (NMOC:NOX) ratios;
comparisons of ambient to emissions-based carbon monoxide to NOX
ratios; receptor modeling; and comparisons of ambient to model-based
NMOC:NOX ratios. These analyses for an initial emissions inventory
suggested a significant underestimation of VOC emissions,
overestimation of NOX emissions, or some combination of these two.
Consequently, LADCO conducted an extensive re-evaluation of the
emissions inventory and made several modifications. The resulting,
final emissions inventory was found to compare more closely to the
ambient NMOC:NOX ratios (the ambient NMOC:NOX ratios are only
about 1.0--1.5 times greater than the emissions inventory-based
NMOC:NOX ratios).
To assess the effect of the emissions uncertainty on the model's
response to VOC and NOX reductions, sensitivity tests were
performed with a higher VOC:NOX ratio. The results of this
modeling were qualitatively the same (NOX disbenefits were
demonstrated for attainment of the ozone standard) as those found for
the unadjusted emissions inventory. Consequently, any possible
underestimation of VOC emissions does not affect the conclusions drawn
concerning VOC versus NOX controls.
With regard to the results of other emissions studies, it should
first be noted that a certain degree of variability of emissions ratios
(NMOC:NOX) exists depending of the locations of the studies and
the sources sampled. Application of the results of these studies to the
LMOS source areas is not straight forward and must be viewed to have a
high degree of uncertainty. The LMOS results leading to the adjustment
of emissions and the favorable comparison of modeled and monitored
results lends some credibility to the emissions used in the LMOS.
Secondly, the LMOS States and LADCO, based on the studies of mobile
source emissions conducted previously in other areas, recognized the
potential for the underestimation of mobile source VOC emissions. This
recognition was part of the basis for the comparison of monitored and
modeled emissions and the modeling sensitivity studies considering
alternate NMOC:NOX ratios. As indicated above, increased
NMOC:NOX ratios lead to the same conclusions regarding the impacts
of VOC versus NOX emissions controls.
Comment: A commenter notes that the problems with the LMOS modeling
are not ``routine'' model errors. The LMOS model results, as presented
in a February 1994 report by Alpine Geophysics, showed large errors in
comparison with measurements for certain pollutant species and these
errors suggest a bias in favor of VOC control and against NOX
control. The finding that the model systematically overestimates
NOy also suggests that the model is biased in favor of VOC
control.
Response: The commenter has chosen to rely on outdated results from
a preliminary February 1994 model evaluation report. Since then, as
documented, for example, in the
[[Page 2435]]
September 1994 model evaluation report submitted to the EPA by LADCO,
significant improvements have been made in the modeling system and in
its inputs. (See also the discussions in response to other comments
regarding the model's performance.) The improved modeling system and
its results make moot the concerns of the commenter.
Comment: A commenter is concerned about the quality of the multi-
species evaluation contained in the September 1994 model evaluation
report. The commenter notes that an interim report indicated that the
model performed poorly in modeling the concentrations of paraffins,
frequently erring by a factor of two or more. Such an error implies
that the model may be biased in favor of VOC controls. The commenter
further notes that the September 1994 model evaluation report fails to
include a significant discussion of multi-species evaluations,
particularly a discussion of modeled versus measured paraffin
concentrations.
Response: The September 1994 report does discuss the fact that
multi-species analyses were performed for the updated modeling system
and updated input data. As noted above, the updated model performed
acceptably for the prediction of species such as ozone, NO2,
NOX, and VOC:NOX. The report did fail to discuss most other
species addressed in the model. LADCO has acknowledged this failure,
and has offered to supply any data requested by the EPA. LADCO,
however, has indicated, in its own responses to the comments on the
proposed approval of the NOX waiver, that the multi-species
performance of the model has significantly improved from past versions
of the modeling system and input data. It is not clear how the
performance of the model regarding prediction of paraffin
concentrations has changed.
Comment: A commenter notes that the emissions inventory used in the
modeling underestimates emissions of both anthropogenic and biogenic
VOC emissions. A particular deficiency is the lack of any biogenic
isoprene emissions in the Chicago area. In addition, the failure to
evaluate model performance for isoprene is especially important. Models
that recommend VOC-based control strategies should be required to
demonstrate that they have not underestimated ambient concentrations of
isoprene.
Response: As noted in a response to a comment above, the current
version of the emissions inventory used in the modeling reasonably
agrees with the ambient data. Although the current LMOS emissions
inventory does not contain biogenic isoprene emissions, calculations
made by LADCO, as discussed in LADCO's response to this comment,
indicate that this does not result in a significant change in the VOC
inventory (addition of biogenic isoprene emissions would only increase
the regional VOC inventory by 1 percent or less). Ambient VOC
measurements also reflect negligible isoprene concentrations in the
Chicago, Gary, and Milwaukee urban areas. The lack of an evaluation of
isoprene concentrations should not detract from the overall assessment
of model performance.
LADCO has noted that the EPA-recommended emission factors for
biogenic isoprene are under review nationally. LADCO has committed to
revise the emissions inventory if these emission factors are changed
significantly, particularly if they are significantly increased.
LADCO has noted that the UAM-V modeling system has been thoroughly
evaluated. In fact this evaluation significantly exceeds the
requirements of the EPA and exceeds the evaluations employed for UAM in
most other ozone nonattainment areas in the United States.
Comment: A commenter notes that the September 1994 model evaluation
report fails to include modeled versus measured NO2 concentrations
from locations that represent maximum measured ozone concentrations. It
is also noted that two-thirds of the modeled-measured data pairs that
were documented in the model evaluation report lie outside of the
factor-of-two range implying poor agreement between modeled and
measured concentrations.
Response: LADCO notes that the modeled versus measured NO2
data were included in the final model evaluation report (October 1994).
These data show that there is no discernible bias in the model
predictions. Furthermore, only a few data pairs reflect an
overprediction by more than a factor of two. Most of the data pairs lie
either within the factor-of-two range, or reflect underprediction by
more than a factor-of-two (underprediction of NO2 would favor
NOX control over VOC control in reducing ozone concentrations).
Despite the possible underprediction of some NO2 concentrations,
the model continues to show that NOX control provides disbenefits
for attainment of the ozone standard in the LMOS domain.
Comment: It is noted that Table 7 in the September 1994 model
evaluation report contains NOX data which differ from those in a
February 1994 model evaluation report. It is also noted that the
September 1994 model evaluation report also fails to include data for a
critical site (the Mid-Lake Boat) on July 18, 1991.
Response: The NOX values contained in the February 1994 report
did not reflect the final quality-assured data for the boat-based
monitors used in the 1991 LMOS field study. The final data were
addressed in the September 1994 model evaluation report. Nevertheless,
no firm conclusions should be based on the NOX data from the boats
because these data were found to be suspect.
Table 7 in the September 1994 report did not include the Mid-Lake
Boat data for July 18, 1991 because the Boat stopped collecting data on
this day after 1600 Central Daylight Time (CDT). The modeling domain-
wide peak observed and modeled concentrations, as noted in Table 7,
occurred after 1600 CDT. In any case, the peak ozone concentration at
the Mid-Lake Boat on this day was 158 parts per billion (1400 CDT). The
magnitude of the NOX concentration for this hour was still fairly
high (13 parts per billion), indicating that the air mass may still
have been VOC-limited, which favors VOC control of upwind sources over
NOX control for the reduction of ozone levels.
Comment: The February 1994 model evaluation report contains
evidence that the mixing algorithm in UAM-V has serious problems. In
particular, the model is overestimating ambient NOX concentrations
by a factor of three or more during the mid-July 1991 episode.
Response: The September 1994 model evaluation report shows that the
model performance statistics for NO2 (as noted above, NOX
over Lake Michigan is primarily NO2 with little NO) during the
mid-July episode are reasonable. The spatial concentration plots for
NO2 show that the predicted values are highest in the Chicago
downtown area and decrease downwind over Lake Michigan. The latest
baseline model input data set (Basecase C) produces significantly lower
peak NO2 concentrations than did the earlier baseline model input
data set considered by the commenter. The new input data lead to
results similar to concentrations measured in aircraft over Lake
Michigan during the 1991 field study.
Comment: A commenter claims that the September 1994 model
evaluation report erroneously claims that 1991 field study NOy
measurements were not available and that most local afternoon NOy
is expected to be NO2.
Response: Contrary to the commenter's claims, NOy data were
not collected during the 1991 field program. The only nitrogen species
for which
[[Page 2436]]
ambient data were collected were NO, NO2, NOX, and
peroxyacetlnitrate (PAN) (collected at only a few sites). LADCO
responds and EPA agrees that, while NOy reflects many nitrogen
compounds, NO2 is a reasonable surrogate for these analyses.
Comment: Commenters note that LADCO has requested and received EPA
approval to assume a future modeling domain boundary peak ozone
concentration of 60 parts per billion. An analysis of this assumption
leads the commenters to conclude that NOX transported into the
modeling domain would have to be reduced by approximately 66 percent
from current emission levels. Given the policy established in the
approval of the NOX exemption petition, the commenters question
the feasibility of this boundary condition assumption.
Response: It is true that the EPA has approved the assumption of a
future modeling domain boundary ozone concentration not exceeding 60
parts per billion. It should be noted, however, that this is a
temporary assumption to be used only in the initial phase of ozone
modeling needed to develop the areas' final ozone demonstrations of
attainment. Regional modeling over a larger domain will be conducted to
better assess the level of ozone transport in the Eastern United
States. This regional modeling will also assess the impacts of possible
national emission control efforts to generally lower ozone precursor
emissions throughout this area. The final phase of local ozone modeling
will use ozone boundary conditions based on the regional modeling.
It should also be noted that the EPA, under section 110(a)(2)(D) of
the Act, may require additional NOX emission controls in the areas
exempted from specific NOX control requirements under section
182(f) of the Act. The NOX emission reduction requirements under
section 110(a)(2)(D) may exceed those under section 182(f) if the
regional modeling supports the need for such emission reductions. The
boundary ozone concentration that will ultimately be used in the final
demonstrations of attainment will be backed by adequate ozone precursor
emission reductions.
Comment: Commenters argue that the NOX exemption petition
ignores the LMOS States' contribution to their own boundary conditions.
Insufficient analyses have been presented that consider the benefits in
lowered boundary ozone levels that could be achieved during episodes
when locally generated ozone and ozone precursors are transported out
of and back into the modeling domain. Exceedances observed on June 18,
1994 are of note in this regard. On this day, it appears that the
Chicago/Gary ``plume'' actually moved north-northeast only to later
reimpose itself on the metropolitan area. The benefits for NOX
control are not presented for this meteorological phenomenon.
Response: Modeling for LMOS considered all high ozone episodes in
1991. Modeling for these episodes will form the basis for the ultimate
ozone demonstrations of attainment to be completed in 1997 under
current EPA policy. The NOX exemption petition is based on
modeling for all of these high ozone episodes, and, as such, meets the
modeling requirements in the December 1993 EPA guidance. It should be
noted that the episodes considered cover a significant range of
meteorological phenomena, including ozone transport and recirculation
within the LMOS domain. A more complete picture of ozone transport out
of and back into the modeling domain will not be available until after
the completion of the regional modeling discussed in the response to
the previous comment.
Comment: A commenter argues that incorporating the Michigan
Counties of Saginaw, Bay, Genessee, Shiawasse, Midland, Ingham,
Jackson, Lenawee, and Calhoun is an attempt to factitiously expand the
domain of LADCO's NOX disbenefit analysis. It is also noted that
the EPA has included the fictional Michigan County of Hillside. The
commenter argues that, if EPA had intended to exempt Hillsdale County
rather than ``Hillside County,'' the EPA should publish a correction
notice amending the proposed rulemaking notice.
Response: When LADCO conducted the modeling analysis of NOX
control impacts, NOX controls were modeled using the LMOS
intermediate modeling domain (Grid B). The Counties noted by the
commenter are located outside of Grid B. Therefore, LADCO did not
determine as part of this modeling effort the potential ozone impacts
of NOX emission reductions for these Counties. It can be noted,
however, that the EPA has received and reviewed base period modeling
for the larger domain (Grid A) which did include the Counties in
question. Base period (1991) modeling of high ozone episodes in the
LMOS domain has been determined by the EPA to be validated based on
comparison of monitored and modeled ozone concentrations. Modeling
results in Grid A in the Counties in question and in their downwind
environs shows that the ozone standard is not violated in these areas.
This is confirmed by monitoring data collected in 1991 during the LMOS
field study. Based on this observation, it can be concluded that
additional NOX emission controls in these Counties would not
contribute to attainment of the ozone standard. Therefore, under the
``contribute to attainment'' test of section 182(f), the NOX
waiver should be approved for these Counties. It should also be noted
that emission reductions in the ``additional'' Counties are not likely
to significantly impact peak ozone concentrations in the LMOS modeling
domain. (Emission reductions in these Counties, however, may be shown
in future regional modeling to lower ozone transport into other ozone
nonattainment areas. If such is the case, the State of Michigan may
wish to or be requested to consider additional emission controls for
these Counties.) A definitive conclusion can not be made here since the
ozone and precursors generated by the these Counties are transported
out of the modeling domain for most modeled episodes.
The EPA did err in the proposed rulemaking in listing ``Hillside
County'' instead of Hillsdale County. This error is corrected here.
This error is not sufficient, in the view of the EPA, to warrant a
revised proposed rulemaking. The listing of the covered Counties and
the location of Hillsdale County should have led a reviewer (as indeed
it did the commenter) of the proposed rulemaking to conclude that the
listing of ``Hillside County'' was a typographical error and that the
EPA had intended to list Hillsdale County.
III. Final Action
The comments received were generally found to warrant no changes
from the proposed action on this NOX exemption request with the
following exceptions: (1) EPA is not taking final action to approve the
NOX exemption for transportation conformity requirements of the
Act for the ozone nonattainment areas in the LMOS domain classified as
moderate and above; (2) EPA is correcting the listing of ``Hillside
County'', Michigan to Hillsdale County, Michigan; and (3) in light of
the modeling completed thus far and considering the importance of the
OTAG process and attainment plan modeling efforts, EPA grants this
NOX waiver on a contingent basis. As the OTAG modeling results and
control recommendations are completed in 1996, this information will be
incorporated into attainment plans being developed by the LADCO States.
When these attainment plans are submitted to EPA in mid-1997, these new
modeling analyses will be reviewed
[[Page 2437]]
to determine if the NOX waiver should be continued, altered, or
removed.
The final attainment plans will supersede the initial modeling
results which are the basis of the NOX waiver that EPA is granting
in this notice. To the extent the attainment plans include NOX
controls on certain major stationary sources in the LMOS ozone
nonattainment areas, EPA will remove the NOX waiver for those
sources. To the extent the plans achieve attainment without additional
NOX reductions from certain sources, the NOX exemption would
continue for those sources. EPA's rulemaking action to reconsider the
initial NOX waiver may occur simultaneously with rulemaking action
on the attainment plans. EPA reserves the right to require NOX
emission controls in general or on a source-specific basis under
section 110(a)(2)(D) of the Act if future ozone modeling demonstrates
that such controls are needed to achieve the ozone standard in downwind
areas.
This action will become effective on February 26, 1996.
IV. Miscellaneous
A. Applicability to Future SIP Decisions
Nothing in this action should be construed as permitting, allowing
or establishing a precedent for any future request for revision to any
state implementation plan. The EPA shall consider each request for
revision to the state implementation plan in light of specific
technical, economic, and environmental factors and in relation to
relevant statutory and regulatory requirements.
B. Executive Order 12866
This action has been classified as a Table 3 action by the Regional
Administrator under the procedures published in the Federal Register on
January 19, 1989 (54 FR 2214-2225), as revised by an October 4, 1993
memorandum from Michael Shapiro, Acting Assistant Administrator for Air
and Radiation. The Office of Management and Budget has exempted this
regulatory action from Executive Order 12866 review.
C. Regulatory Flexibility
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.
This approval does not create any new requirements. Therefore, I
certify that this action does not have a significant impact on any
small entities affected. Moreover, due to the nature of the Federal-
State relationship under the Act, preparation of the regulatory
flexibility analysis would constitute Federal inquiry into the economic
reasonableness of the State action. The Act forbids EPA to base its
actions concerning state implementation plans on such grounds. Union
Electric Co. v. U.S.E.P.A., 427 U.S. 246, 256-66 (1976).
D. Unfunded Mandates
Under Sections 202, 203, and 205 of the Unfunded Mandates Reform
Act of 1995 (Unfunded Mandates Act), signed into law on March 22, 1995,
EPA must assess whether various actions undertaken in association with
proposed or final regulations 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.
EPA's final action will relieve requirements otherwise imposed
under the Clean Air Act and, hence does not impose any federal
intergovernmental mandate, as defined in section 101 of the Unfunded
Mandates Act. This action also will not impose a 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.
E. Petitions for Judicial Review
Under section 307(b)(1) of the Act, petitions for judicial review
of this action must be filed in the United States Court of Appeals for
the appropriate circuit by March 26, 1996. Filing a petition for
reconsideration by the Administrator of this final rule does not affect
the finality of this rule for the purpose of judicial rule, nor does it
extend the time within which a petition for judicial review may be
filed and shall not postpone the effectiveness of such rule or action.
This action may not be challenged later in proceedings to enforce its
requirements (see section 307(b)(2) of the Act.
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Oxides of
nitrogen, Incorporation by reference, Intergovernmental relations,
Ozone.
Dated: January 18, 1996.
Carol M. Browner,
Administrator.
Part 52, chapter I, title 40 of the Code of Federal Regulations is
amended as follows:
PART 52--[AMENDED]
1. The authority citation for part 52 continues to read as follows:
Authority: 42 U.S.C. 7401-7671(q).
Subpart O--Illinois
2. Section 52.726 is amended by adding paragraph (k) to read as
follows:
Sec. 52.726 Control Strategy: Ozone
* * * * *
(k) Approval--EPA is approving the section 182(f) oxides of
nitrogen (NOX) reasonably available control technology (RACT), new
source review (NSR), vehicle inspection/maintenance (I/M), and general
conformity exemptions for the Illinois portion of the Chicago-Gary-Lake
County severe ozone nonattainment area as requested by the States of
Illinois, Indiana, Michigan, and Wisconsin in a July 13, 1994
submittal. This approval does not cover the exemption of NOX
transportation conformity requirements of section 176(c) for this area.
Approval of these exemptions is contingent on the results of the final
ozone attainment demonstration expected to be submitted in mid-1997.
The approval will be modified if the final attainment demonstration
demonstrates that NOX emission controls are needed in the
nonattainment area to attain the ozone standard in the Lake Michigan
Ozone Study modeling domain.
Subpart P--Indiana
2. Section 52.777 is amended by adding paragraph (i) to read as
follows:
Sec. 52.777 Control Strategy: Photochemical oxidants (hydrocarbons).
* * * * *
(i) Approval--EPA is approving the section 182(f) oxides of
nitrogen (NOX) reasonably available control technology (RACT), new
source review (NSR), vehicle inspection/maintenance (I/M), and general
conformity exemptions for the Indiana portion of the Chicago-Gary-Lake
County severe ozone nonattainment area as requested by the States of
Illinois, Indiana, Michigan, and Wisconsin in a July 13, 1994
submittal. This approval does not cover the exemption of NOX
transportation conformity requirements of section 176(c) for this area.
Approval of these exemptions is contingent on the results
[[Page 2438]]
of the final ozone attainment demonstration expected to be submitted in
mid-1997. The approval will be modified if the final attainment
demonstration demonstrates that NOX emission controls are needed
in the nonattainment area to attain the ozone standard in the Lake
Michigan Ozone Study modeling domain.
* * * * *
Subpart X--Michigan
2. Section 52.1174 is amended by adding paragraph (l) to read as
follows:
Sec. 52.1174 Control Strategy: Ozone
* * * * *
(l) Approval--EPA is approving the section 182(f) oxides of
nitrogen (NOX) reasonably available control technology (RACT), new
source review (NSR), vehicle inspection/maintenance (I/M), and general
conformity exemptions for the Grand Rapids (Kent and Ottawa Counties)
and Muskegon (Muskegon County) moderate nonattainment areas as
requested by the States of Illinois, Indiana, Michigan, and Wisconsin
in a July 13, 1994 submittal. This approval also covers the exemption
of NOX transportation and general conformity requirements of
section 176(c) for the Counties of Allegan, Barry, Bay, Berrien,
Branch, Calhoun, Cass, Clinton, Eaton, Gratiot, Genesee, Hillsdale,
Ingham, Ionia, Jackson, Kalamazoo, Lenawee, Midland, Montcalm, St.
Joseph, Saginaw, Shiawasse, and Van Buren.
Subpart YY--Wisconsin
2. Section 52.2585 is amended by adding paragraph (i) to read as
follows:
Sec. 52.2585 Control Strategy: Ozone.
* * * * *
(i) Approval--EPA is approving the section 182(f) oxides of
nitrogen (NOX) reasonably available control technology (RACT), new
source review (NSR), vehicle inspection/maintenance (I/M), and general
conformity exemptions for the moderate and above ozone nonattainment
areas within Wisconsin as requested by the States of Illinois, Indiana,
Michigan, and Wisconsin in a July 13, 1994 submittal. This approval
also covers the exemption of transportation and general conformity
requirements of section 176(c) for the Door and Walworth marginal ozone
nonattainment areas. Approval of these exemptions is contingent on the
results of the final ozone attainment demonstration expected to be
submitted in mid-1997. The approval will be modified if the final
attainment demonstration demonstrates that NOX emission controls
are needed in any of the nonattainment areas to attain the ozone
standard in the Lake Michigan Ozone Study modeling domain.
[FR Doc. 96-1413 Filed 1-25-96; 8:45 am]
BILLING CODE 6560-50-P
Complete official Federal Register PDF
FR Doc. 96-1402 Trifluralin; Revocation of Food Additive Regulation
[Federal Register Volume 61, Number 18 (Friday, January 26, 1996)]
[Rules and Regulations]
[Pages 2446-2449]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-1402]
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 185
[OPP-300394A; FRL-4983-6]
RIN 2070-AB78
Trifluralin; Revocation of Food Additive Regulation
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: EPA is revoking the food additive regulation (FAR) for
residues of the herbicide trifluralin in peppermint oil and spearmint
oil. EPA is taking this action because peppermint oil and spearmint oil
are not ready-to-eat commodities, and residues of trifluralin are not
likely to concentrate in ready-to-eat foods containing peppermint and
spearmint oil. Therefore, this FAR is not required.
EFFECTIVE DATE: This final rule becomes effective January 26, 1996.
ADDRESSES: Written objections, requests for a hearing, and/or requests
of stays identified by the document control number, OPP-300394A, must
be submitted by February 26, 1996, and comments on all of the above
must be submitted by March 11, 1996 to the OPP docket: Public Response
and Program Resources Branch, Field Operations Division (7506C), Office
of Pesticide Programs, Environmental Protection Agency, 401 M St., SW.,
Washington, DC 20460. Hand deliver to: Rm. 1132, CM #2, 1921 Jefferson
Davis Hwy., Arlington, VA.
Information submitted as a filing concerning this document may be
claimed confidential by marking any part or all of that information as
``Confidential Business Information'' (CBI). Information so marked will
not be disclosed except in accordance with procedures set forth in 40
CFR part 2. A copy of the filings that does not contain CBI must be
submitted for inclusion in the public record. Information not marked
confidential may be disclosed publicly by EPA without prior notice. All
written (non-CBI) filings will be available for public inspection in
Rm. 1132 at the address given above, from 8 a.m. to 4:30 p.m., Monday
through Friday, excluding legal holidays.
A copy of objections and hearing requests filed with the Hearing
Clerk may also be submitted electronically by sending electronic mail
(e-mail) to: [email protected]. Copies of objections and
hearing requests must be submitted as an ASCII file avoiding the use of
special characters and any form of encryption. Copies of objections and
hearing requests will also be accepted on disks in WordPerfect in 5.1
file format or ASCII file format. All copies of objections and hearing
requests in electronic form must be identified by the docket number
[OPP-300394A]. No Confidential Business Information (CBI) should be
submitted through e-mail. Electronic copies of objections and hearing
requests on this rule may be filed online at many Federal Depository
Libraries. Additional information on electronic submissions can be
found below in this document.
FOR FURTHER INFORMATION CONTACT: By mail: Niloufar Nazmi, Special
Review Branch (7508W), Environmental Protection Agency, 401 M St., SW.,
Washington, DC 20460. Office location and telephone number: Crystal
Mall #2, Rm. 1113, 1921 Jefferson Davis Hwy., Arlington, VA, (703)-308-
8028; e-mail: [email protected].
SUPPLEMENTARY INFORMATION:
I. Introduction
EPA is revoking the FAR for residues of the herbicide trifluralin
in peppermint oil and spearmint oil (40 CFR 185.5900).
A. Statutory Background
The Federal Food, Drug, and Cosmetic Act (FFDCA), 21 U.S.C. 301 et
seq., authorizes the establishment by regulation of maximum permissible
levels of pesticides in foods. Such regulations are commonly referred
to as ``tolerances.'' Without such a tolerance or an exemption from the
requirement of a tolerance, a food containing a pesticide residue is
``adulterated'' under section 402 of the Federal Food, Drug, and
Cosmetic Act (FFDCA) and may not be legally moved in interstate
commerce. 21 U.S.C. 331, 342. EPA was authorized to establish pesticide
tolerances under Reorganization Plan No. 3 of 1970. 5 U.S.C. App. at
1343 (1988). Monitoring and enforcement of pesticide tolerances are
carried out by the U.S. Food and Drug Administration (FDA) and the U.S.
Department of Agriculture (USDA). EPA can establish a tolerance in
response to a petition (FFDCA sections 408(d)(1) and 409(b)(1)) or on
its own initiative (FFDCA sections 408(e) and 409(d)).
The FFDCA has separate provisions for tolerances for pesticide
residues on raw agricultural commodities (RACs) and tolerances on
processed food. For pesticide residues in or on RACs, EPA establishes
tolerances, or exemptions from tolerances when appropriate, under
section 408 of the act (21 U.S.C. 346a.) EPA regulates pesticide
residues in processed foods under section 409 of
[[Page 2447]]
the act, which pertains to ``food additives'' (21 U.S.C. 348). Maximum
residue regulations established under section 409 of the act are
commonly referred to as food additive regulations (hereafter referred
to as ``FARs''). Section 409 FARs are needed, however, only for certain
pesticide residues in processed food. Under section 402(a)(2) of the
FFDCA, a pesticide residue in processed food generally will not render
the food adulterated if the residue results from application of the
pesticide to a RAC and the residue in the processed food when ready to
eat is below the RAC tolerance. This exemption in section 402(a)(2) is
commonly referred to as the ``flow-through'' provision because it
allows the section 408 raw food tolerance to flow through to the
processed food forms. Thus, a section 409 food additive regulation is
only necessary to prevent foods from being deemed adulterated when the
level of the pesticide residue in a processed food when ready to eat is
greater than the tolerance prescribed for the RAC, or if the processed
food itself is treated or comes in contact with a pesticide.
B. Regulatory Background
In the Federal Register of July 14, 1993 (58 FR 37862) EPA issued a
final order, hereafter referred to as ``1993 Order'', that was subject
to objections and requests for a hearing and that revoked the
trifluralin FAR for peppermint oil and spearmint oil. The 1993 Order
was issued in response to the decision by the U.S. Court of Appeals,
Ninth Circuit, in the case of Les v. Reilly, 968 F.2d 985 (9th Cir.
1992), cert. denied, 113 S.Ct. 1361 (1993). DowElanco, the manufacturer
of trifluralin, filed objections to the revised Order, as well as
requests for a hearing on, and a stay of, the revocation Order. In the
Federal Register of June 30, 1994 (59 FR 33684), EPA issued a final
order (hereafter referred to as ``1994 Order'') denying DowElanco's
objections and requests for a hearing and a stay of the revocation. On
July 14, 1994, DowElanco filed an action in the U.S. Court of Appeals,
D.C. Circuit, for review of EPA's 1993 Order, and moved for summary
reversal or, in the alternative, an emergency stay of the revocation.
E.I. DuPont DeNemours and Co., et al. v. EPA, Civ. Action No. 94-1504
(D.C. Cir.). On August 24, 1994, the Court denied DowElanco's motion
for summary reversal, but issued an emergency stay of the revocation.
In the Federal Register of September 12, 1994 (59 FR 46768), EPA
reinstated the FAR for trifluralin (as well as for benomyl), and they
are currently in effect.
On September 11, 1992, the National Food Processors Association
(NFPA) and other organizations filed a petition with EPA challenging,
among other things, EPA's interpretation of the phrase ``ready to eat''
in the Delaney Clause. (Petition to the Environmental Protection
Agency, Office of Pesticide Programs, Concerning EPA's Pesticide
Concentration Policy (1992)) (hereinafter cited as ``NFPA petition'').
The petition requested that EPA apply the term ``ready to eat'' in the
flow-through provision according to what NFPA asserts is its plain
meaning. EPA sought public comment on the petition (58 FR 7470, Feb. 5,
1993). In the Federal Register of June 14, 1995 (60 FR 31300), EPA
issued a partial response to the NFPA petition, addressing the ``ready
to eat'' policy. In that response, EPA agreed that the term ``ready to
eat'' food has a common-sense meaning of food which is consumed without
further preparation, and stated its intention to apply that
interpretation in future actions.
In the Federal Register of July 28, 1995 (60 FR 38781), EPA issued
a proposed rule to revoke the FAR for trifluralin on peppermint and
spearmint oils. In the same proposed rule, EPA proposed to withdraw its
Order dated July 14, 1993 (58 FR 37862), to the extent that it revoked
the FAR for trifluralin in peppermint oil and spearmint oil. Today's
document contains a final rule revoking the trifluralin FAR and
responds to comments on the July 28, 1995 proposal
II. Revocation of the Food Additive Regulations for Trifluralin in
Peppermint Oil and Spearmint Oil
EPA has determined that no section 409 FAR is necessary for mint
oils because they are not ``ready to eat'' processed foods, and because
``ready to eat'' foods containing mint oils are unlikely to have
trifluralin residues greater than the RAC tolerances for peppermint hay
and spearmint hay. The proposed rule for this action was published in
the Federal Register of July 28, 1995 (60 FR 38781). The Federal
Register document and all the supporting documents are in the OPP
docket number 300394.
As noted above, under FFDCA section 402(a)(2), processed foods
containing pesticide residues are not deemed adulterated if the level
of pesticide residues in the processed food ``when ready to eat is not
greater than the tolerance prescribed for the raw agricultural
commodity.'' EPA believes that the common sense meaning of the term
``ready to eat'' food is food ready for consumption without further
preparation. Mint oils are not consumed ``as is'' but are used as a
flavoring in other foods. As such, peppermint oil and spearmint oil are
not ``ready to eat.''
Mint oils are used as flavoring agents in foods such as beverages,
ice cream, candy, and chewing gum. Chewing gum is a ready-to-eat food
with the highest concentration of peppermint and spearmint oils. The
information available to EPA shows that trifluralin residues are
diluted during manufacturing so that there is no concentration over the
RAC tolerance in the ready-to-eat chewing gum. Thus, no section 409 FAR
is needed for peppermint oil and spearmint oil, and EPA is revoking the
existing FAR. (60 FR 38781)
III. Response to Comments
EPA received comments on the proposed revocation of the trifluralin
FAR. All the commenters support the basis for the revocation of the
referenced FAR. In addition, many of the commenters raise other issues
that EPA believes are not relevant to EPA's conclusion that mint oils
are not ready-to-eat commodities and that as a result, the section 409
FAR covering residues of trifluralin in mint oils are not necessary.
However, the following are brief responses to these comments.
Comment
The National Food Processor's Association (NFPA), the American Crop
Protection Association (ACPA), DowElanco, and Gowan Co. submitted
comments in support of the revocation of the proposed FAR and the
withdrawal of the July 14, 1993 Order. However, NFPA, ACPA, and
DowElanco contend that there are other controlling legal reasons why
the 1993 and 1994 Orders must be withdrawn.
The commenters contend that once it has been determined that
trifluralin residues in mint oil are subject to the section 402 flow-
through provision, the 1993 and 1994 Orders must be withdrawn because
those Orders purported to revoke the FAR on the grounds that the
pesticide ``induces cancer'' within the meaning of the Delaney clause.
The commenters contend that, as a matter of law, EPA is precluded from
revoking a section 409 FAR under the safety standard in section 409(c)
if EPA has determined, as it has here, that the FAR is not needed to
prevent the adulteration of processed food.
According to the commenters, the flow-through provision prohibits
EPA from determining that an agricultural pesticide in a processed food
is ``unsafe,'' notwithstanding the
[[Page 2448]]
provisions of section 409, if the pesticide residue has been removed to
the extent possible in good manufacturing practice and the level of the
residue in the processed food when ready to eat is not greater than the
applicable section 408 tolerance. Thus, the commenters reason that
since EPA has decided that trifluralin residues in mint oil are likely
to fall within the protection of the flow-through provision, EPA is
barred from revoking the trifluralin FAR on grounds that the pesticide
``induces cancer'' within the meaning of the Delaney clause in section
409 of the FFDCA. On June 10, 1995, NFPA separately filed a petition
with EPA raising this same issue.
EPA's Response
As will be explained in more detail in EPA's response to the June
10, 1995 NFPA petition, the commenters' argument is without any legal
basis. The commenters misunderstand the relationship between a section
409 FAR and the flow-through provision. As a result of the flow-through
provision, a FAR only has legal effect as to residues of the pesticide
in processed food that exceed the residue levels qualifying under the
flow-through provision. Thus, a finding that a pesticide does not meet
the safety standard under section 409 and a revocation of a FAR based
on such a finding has no effect on residues of the pesticide that are
in compliance with the flow-through provision. Such a lack of safety
finding under section 409(c) does not render pesticide residues in
compliance with the flow-through provision unsafe. If a section 409 FAR
is revoked, residues still retain the same legal safe harbor they
always had under the flow-through provision. Accordingly, the flow-
through provision contains no bar to the revocation of a section 409
FAR on safety grounds.
Comment
DowElanco further requests that the Agency explicitly acknowledge
that DowElanco and other adversely affected parties will not be
precluded from challenging any ``induce cancer'' finding for
trifluralin in any future FFDCA tolerance revocation actions. DowElanco
insists that without such an acknowledgement, today's Notice will not
resolve the underlying controversy in the Dupont and DowElanco v.
Browner litigation. In addition, DowElanco urges that the EPA should
use today's Notice to clarify its position on chemicals classified as
Group C carcinogens with quantification by the Reference Dose approach
(or found not to be quantifiable). DowElanco further argues that by
using the Reference Dose approach for quantifying risk, EPA is
recognizing that the carcinogenic risk is so uncertain that it is
disregarded for evaluating risk.
EPA's Response
EPA believes that there are no additional trifluralin tolerances or
FARs that are likely to be revoked on grounds that trifluralin
``induces cancer.'' The trifluralin Reregistration Eligibility
Document, which will soon be issued by EPA, indicates that there are no
section 409 FARs needed for this chemical. Therefore, EPA does not
foresee a situation that would result in any hearings under the FFDCA
on whether trifluralin ``induces cancer.'' However, as explained below,
EPA will consider future hearing requests raising any evidence relevant
and material to a finding that trifluralin ``induces cancer'' within
the meaning of the Delaney clause when that finding serves as the basis
for an order issued by EPA under the authority of sections 408 and 409
of the FFDCA.
EPA believes that precluding review of issues that could have and
should have been raised in prior proceedings is an appropriate and
essential policy and legal position for the Agency to take in FFDCA
proceedings because it ensures that such Agency decisions are accorded
finality. In the interest of administrative efficiency and economy,
final determinations in such administrative proceedings deserve to be
treated with the same finality as final determinations in judicial
proceedings. Further, under section 409 of the FFDCA, the only way to
prevent EPA from according finality to a section 409(f) order, and the
legal and factual basis for that order, is to file objections within
the time period specified, Nader v. EPA, 859 F.2d 747 (9th Cir. 1988),
cert. denied, 490 U.S. 1931 (1989; and CNI v. Young, 773 F2.d 1356
(1985).
EPA found, in its 1990 and 1991 Orders, that trifluralin ``induces
cancer'' but that because the trifluralin cancer risks were de minimis,
EPA would retain the trifluralin FAR that was the subject of NRDC's
petition. However, because EPA retained the FAR, and because this was
the first proceeding of this nature under section 409 of the FFDCA,
proponents of the FAR and chemicals, including DowElanco, may not have
understood that their failure to raise objections to the cancer finding
at that time could result in that finding being accorded finality by
EPA. Given that such circumstances are not likely to be repeated, EPA
believes it is appropriate to assure DowElanco that EPA will not assert
in future FFDCA proceedings that the issue of whether trifluralin
``induces cancer'' must or will be accorded finality based on EPA's
1990 and 1991 Orders.
Because EPA is providing the assurances requested by commenters,
EPA believes there should be no objections to an EPA final order
withdrawing the 1993 and 1994 Orders.
IV. Procedural Matters
A. Filing of Objections and Requests for Hearings
Any person adversely affected by this final rule may file written
objections to the final rule, and may include with any such objection a
written request for an evidentiary hearing on the objection. Such
objections must be submitted to the Hearing Clerk on or before February
26, 1996. A copy of the objections and hearing requests filed with the
Hearing Clerk shall be submitted to the Office of Pesticide Programs
Docket Room. Regulations applicable to objections and requests for
hearings are set out at 40 CFR parts 178 and 179. Those regulations
require, among other things, that objections specify with particularity
the provisions of the final rule objected to, the basis for the
objections, and the relief sought. Additional requirements as to the
form and manner of the submission of objections are set out at 40 CFR
178.25. The Administrator will respond as set forth in 40 CFR 178.30,
178.35, and/or 178.37 to objections that are not accompanied by a
request for evidentiary hearing.
A person may include with any objection a written request for an
evidentiary hearing on the objection. A hearing request must include a
statement of the factual issues on which a hearing is requested, the
requestor's contentions on each such issue, and a summary of any
evidence relied upon by the requestor. Additional requirements as to
the form and manner of submission of requests for an evidentiary
hearing are set out at 40 CFR 178.27. Under 40 CFR 178.32(c), the
Administrator, where appropriate, will make rulings on any issues
raised by an objection if such issues must be resolved prior to
determining whether a request for an evidentiary hearing should be
granted. The Administrator will respond to requests for evidentiary
hearings as set forth in 40 CFR 178.30, 178.32, 178.35, 178.37, and/or
179.20. Under 40 CFR 178.32(b), a request for an evidentiary hearing on
an objection will be granted if the objection and request have been
properly submitted and if the Administrator determines that the
material submitted show: (1) There is a genuine and substantial issue
of fact for resolution at a hearing; (2) There is a
[[Page 2449]]
reasonable possibility that available evidence identified by the
requestor would, if established, resolve one or more of such issues in
favor of the requestor; and (3) Resolution of one or more of the
factual issues in the manner sought by the person requesting the
hearing would be adequate to justify the action requested.
Any person wishing to comment on any objections or requests for a
hearing may submit such comments to the Hearing Clerk on or before
March 11, 1996.
A record has been established for this rulemaking under docket
number [OPP-300394A] (including objections and hearing requests
submitted electronically as described below). A public version of this
record, including printed, paper versions of electronic comments, which
does not include any information claimed as CBI, is available for
inspection from 8 a.m. to 4:30 p.m., Monday through Friday, excluding
legal holidays. The public record is located in Room 1132 of the Public
Response and Program Resources Branch, Field Operations Division
(7506C), Office of Pesticide Programs, Environmental Protection Agency,
Crystal Mall #2, 1921 Jefferson Davis Highway, Arlington, VA.
Written objections and hearing requests, identified by the document
control number [OPP-300394A], may be submitted to the Hearing Clerk
(1900), Environmental Protection Agency, Rm. 3708, 401 M St., SW.,
Washington, DC 20460.
A copy of electronic objections and hearing requests filed with the
Hearing Clerk can be sent directly to EPA at:
opp-D[email protected]
A copy of electronic objections and hearing requests filed with the
Hearing Clerk must be submitted as an ASCII file avoiding the use of
special characters and any form of encryption.
The official record for this rulemaking, as well as the public
version, as described above will be kept in paper form. Accordingly,
EPA will transfer any objections and hearing requests received
electronically into printed, paper form as they are received and will
place the paper copies in the official rulemaking record which will
also include all objections and hearing requests submitted directly in
writing. The official rulemaking record is the paper record maintained
at the address in ``ADDRESSES'' at the beginning of this document.
B. Effective Date
EPA is making this final rule effective January 26, 1996 given the
lack of adverse comments on EPA's proposed action. In addition, if EPA
does not receive objections to this Order, this Order and the factual
and legal basis for this Order become final and are not judicially
reviewable. See section 409(g)(1), 21 U.S.C. 348(g)(1), and Nader v.
EPA: 859 F.2d 747 (9th Cir. 1988), cert. denied, 490 U.S. 1931 (1989).
C. Request for Stays of Effective Date
A person filing objections to this final rule may submit with the
objections a petition to stay the effective date of this final rule.
Such stay petitions must be submitted to the Hearing Clerk on or before
February 26, 1996. A copy of the stay request filed with the Hearing
Clerk shall be submitted to the Office of Pesticide Programs Docket
Room. A stay may be requested for a specific time period or for an
indefinite time period. The stay petition must include a citation to
this final rule, the length of time for which the stay is requested,
and a full statement of the factual and legal grounds upon which the
petitioner relies for the stay. In determining whether to grant a stay,
EPA will consider the criteria set out in the Food and Drug
Administration's regulations regarding stays of administrative
proceedings at 21 CFR 10.35. Under those rules, a stay will be granted
if it is determined that: (1) The petitioner will otherwise suffer
irreparable injury; (2) The petitioner's case is not frivolous and is
being pursued in good faith; (3) The petitioner has demonstrated sound
public policy grounds supporting the stay; and (4) The delay resulting
from the stay is not outweighed by public health or other public
interests.
Under FDA's criteria, EPA may also grant a stay if EPA finds such
action is in the public interest and in the interest of justice.
Any person wishing to comment on any stay request may submit such
comments and objections to a stay request, to the Hearing Clerk, on or
before March 11, 1996. Any subsequent decisions to stay the effect of
this Order, based on a stay request filed, will be published in the
Federal Register, along with EPA's response to comments on the stay
request.
V. Regulatory Requirements
A. Executive Order 12866
Under Executive Order 12866, the Agency must determine whether the
regulatory action is ``significant'' and therefore subject to review by
the Office of Management and Budget (OMB) and the requirements of the
Executive Order. Under the order, a ``significant regulatory action''
is an action that is likely to result in a rule (1) having an annual
effect on the economy of $100 million or more, or adversely and
materially affecting a sector of the economy, productivity,
competition, jobs, and the environment, public health or safety, of
State, local, or tribal governments or communities''; (2) creating
serious inconsistency or otherwise interfering with an action taken or
planned by another agency; (3) materially altering the budgetary
impacts of entitlement, grants, user fees, or loan programs or the
rights and obligations of recipients thereof; or (4) raising novel
legal or policy issues arising out of legal mandates, the President's
priorities, or the principles set forth in the Executive Order. EPA has
determined that this final rule is not a ``significant'' action under
E.O. 12866. EPA is taking this action because it has determined that
the food additive regulation for trifluralin is not needed. Therefore,
the Agency expects that no economic impact will result.
B. Regulatory Flexibility Act
The regulatory action has been reviewed under the Regulatory
Flexibility Act of 1980, and, as stated above, EPA expects that it will
not have any economic impacts, including impacts on small entities.
C. Paperwork Reduction Act
This Order does not contain any information collection requirements
subject to review by the Office of Management and Budget under the
Paperwork Reduction Act of 1980, 44 U.S.C. 3501 et seq.
List of Subjects in 40 CFR Part 185
Environmental protection, Administrative practice and procedures,
Agricultural commodities, Food additives, Pesticides and pests,
Reporting and recordkeeping.
Dated: January 19, 1996.
Lynn R. Goldman,
Assistant Administrator for Prevention, Pesticides and Toxic
Substances.
Therefore, 40 CFR part 185 is amended as follows:
PART 185--[AMENDED]
1. The authority citation for part 185 continues to read as
follows:
Authority: 21 U.S.C. 346a and 348.
Sec. 185.5900 [Removed]
2. By removing Sec. 185.5900 Trifluralin.
[FR Doc. 96-1402 Filed 1-25-96; 8:45 am]
BILLING CODE 6560-50-F
Complete official Federal Register PDF
FR Doc. 96-1398 National Oil and Hazardous Substances Contingency Plan; National Priorities List Update
[Federal Register Volume 61, Number 18 (Friday, January 26, 1996)]
[Rules and Regulations]
[Pages 2451-2452]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-1398]
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 300
[FRL-5403-5]
National Oil and Hazardous Substances Contingency Plan; National
Priorities List Update
AGENCY: Environmental Protection Agency (EPA).
ACTION: Notice of Deletion of the Anderson Development Company
Superfund Site from the National Priorities List (NPL).
-----------------------------------------------------------------------
SUMMARY: The Environmental Protection Agency (EPA) announces the
deletion of the Anderson Development Company site in Michigan from the
National Priorities List (NPL). The NPL is Appendix B of the National
Oil and Hazardous Substances Contingency Plan (NCP), which EPA
promulgated pursuant to Section 105 of the Comprehensive Environmental
Response, Compensation, and Liability Act of 1980 (CERCLA), as amended.
EPA and the State of Michigan have determined that all appropriate
Fund-financed responses under CERCLA have been implemented and that no
further response by responsible parties is appropriate. Moreover, EPA
and the State of Michigan have determined that remedial actions
conducted at the site to date remain protective of public health,
welfare, and the environment.
EFFECTIVE DATE: January 26, 1996.
FOR FURTHER INFORMATION CONTACT: Rita Garner-Davis at (312) 886-2440,
Associate Remedial Project Manager, Office of Superfund, U.S. EPA--
Region V, 77 West Jackson Blvd., Chicago, IL 60604. Information on the
site is available at the local information repository located at:
Adrian Public Library, 143 East Maumee, Adrian Michigan 49221, Contact:
Jule Foebender, Phone No. (517) 263-2265; and Adrian City Hall, 100
East Church Street, Adrian, MI. Requests for comprehensive copies of
documents should be directed formally to the Regional Docket Office.
The point of contact for the Regional Docket Office is Jan Pfundheller
(H-7J), U.S. EPA, Region V, 77 W. Jackson Blvd., Chicago, IL 60604,
(312) 353-5821.
SUPPLEMENTARY INFORMATION: The site to be deleted from the NPL is the
Anderson Development Company Site located in Adrian, Michigan. A Notice
of Intent to Delete was published August 30, 1995 (60 FR 13944) for
this site. The closing date for comments on the Notice of Intent to
Delete was September 29, 1995. EPA received no comments and therefore a
Responsiveness Summary was not prepared.
The EPA identifies sites which appear to present a significant risk
to public health, welfare, or the environment and it maintains the NPL
as the list of those sites. Sites on the NPL may be the subject of
Hazardous Substance Response Trust Fund (Fund-) financed remedial
actions. Any site deleted from the NPL remains eligible for Fund-
financed remedial actions in the unlikely event that conditions at the
site warrant such action. Section 300.425(e)(3) of the NCP states that
Fund-financed actions may be taken at sites deleted from the NPL in the
[[Page 2452]]
unlikely event that conditions at the site warrant such action.
Deletion of a site from the NPL does not affect responsible party
liability or impede Agency efforts to recover costs associated with
response efforts.
List of Subjects in 40 CFR Part 300
Air pollution control, Chemicals, Hazardous substances, Hazardous
Waste, Intergovernmental relations, Penalties, Reporting and
recordkeeping requirements, Superfund, Water pollution control, Water
supply.
PART 300--[AMENDED]
1. The authority citation for Part 300 continues to read as
follows:
Authority: 42 U.S.C. 9601-9657; 33 U.S.C. 1321(c)(2); E.O.
12777, 56 FR 54757, 3 CFR, 1991 Comp.; p.351; E.O. 12580, 52 FR
2923, 3 CFR, 1987 Comp.; p. 193.
Appendix B--[Amended]
2. Table 1 of appendix B to part 300 is amended by removing the
entry for ``Anderson Development Co.'' at Adrian, Michigan.''
Dated: October 18, 1996.
Michelle Jordan,
Acting Regional Administrator, U.S. EPA, Region V.
[FR Doc. 96-1398 Filed 1-25-96; 8:45 am]
BILLING CODE 6560-50-P
Complete official Federal Register PDF
FR Doc. 96-1389 Safety Zone Regulations: Delaware Bay, Delaware River, Marcus Hook, PA
[Federal Register Volume 61, Number 18 (Friday, January 26, 1996)]
[Rules and Regulations]
[Pages 2418-2419]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-1389]
-----------------------------------------------------------------------
DEPARTMENT OF TRANSPORTATION
33 CFR Part 165
[COTP Philadelphia, PA 96-004]
RIN 2115-AA97
Safety Zone Regulations: Delaware Bay, Delaware River, Marcus
Hook, PA
AGENCY: Coast Guard, DOT.
ACTION: Temporary rule.
-----------------------------------------------------------------------
SUMMARY: The Coast Guard is establishing a temporary safety zone on the
Delaware River and Delaware Bay from Marcus Hook, Pennsylvania, to the
Delaware Breakwater. This safety zone is needed to protect vessels, the
port community and the environment from potential safety and
environmental hazards associated with the transit of the T/V HAVPRINS.
EFFECTIVE DATES: This rule is effective from 11:59 p.m., on January 19,
1996 and terminates at 11:59 a.m., on January 29, 1996. The Captain of
the Port, Philadelphia, may, at an earlier date, advise mariners by
Broadcast Notice to Mariners that the safety zone will not be enforced.
FOR FURTHER INFORMATION CONTACT:
LTJG S.J. Kelly, Project Officer c/o U.S. Coast Guard Captain of the
Port, 1 Washington Ave., Philadelphia, PA. 19147-4395, Phone: (215)
271-4909.
SUPPLEMENTARY INFORMATION: In accordance with 5 U.S.C. 553, a Notice of
Proposed Rule Making (NPRM) was not published for this regulation and
good cause exists for making it effective in less than 30 days after
Federal Register publication. The Coast Guard was informed by the
owner/operator of the T/V HAVPRINS on January 11, 1996 of the intended
transit of the T/V HAVPRINS along the Delaware River. Publishing a NPRM
and delaying its effective date would be contrary to the public
interest, since immediate action is needed to protect the environment
and mariners against potential hazards associated with the transit of
the T/V HAVPRINS while carrying liquefied petroleum gas.
Drafting Information: The drafters of this regulation are LTJG
S.J. Kelly, project officer for the Captain of the Port,
Philadelphia, and CDR T.R. Cahill, Project Attorney, Fifth Coast
Guard District Legal Staff.
Discussion of the Regulation
This safety zone is a specified area around the LPG vessel while
underway, at anchor and during cargo operations. It will be in effect
during the T/V HAVPRINS's inbound transit of the Delaware River and
Delaware Bay and during cargo operations. The circumstances requiring
this regulation are the potential hazards associated with the
transportation of liquefied petroleum gas by a large tankship in
heavily trafficked areas of the Delaware River and Delaware Bay as well
as in the Ports of Philadelphia. This transit consists of T/V
HAVPRINS's inbound transit to Marcus Hook, Pennsylvania, and cargo
operations at the Sun Refining and Marketing Refinery terminal on the
Delaware River, at Marcus Hook, Pennsylvania. Coast Guard Captain of
the Port Philadelphia may impose transit restrictions on vessels
operating within the safety zone while the T/V HAVPRINS is loaded with
LPG that exceeds 2% of the vessel's cargo carrying capacity.
Regulatory Evaluation
This regulation is not a significant regulatory action under
section 3(f) of Executive Order 12866 and does not require an
assessment of potential costs and benefits under section 6(a)(3) of
that order. It has been exempted from review by the Office of
Management and Budget under that order. It is not significant under the
regulatory policies and procedures of the Department of Transportation
(DOT) (44 FR 11040; February 26, 1979). The Coast Guard expects the
economic impact of this proposal to be so minimal that a full
Regulatory Evaluation under paragraph 10e of the regulatory policies
and procedures of DOT is unnecessary.
Environment
The Coast Guard considered the environmental impact of this
proposal and concluded that under section 2.B.2.e. (34) of Commandant
Instruction M16475.1B (as amended by 59 FR 38654; 29 July 1994), this
rule is categorically excluded from further environmental
documentation.
Collection of Information
This rule contains no collection of information requirements under
the Paperwork Reduction Act (44 U.S.C. 3501 et seq.).
Federalism Assessment
This action has been analyzed in accordance with the principles and
criteria contained in Executive Order 12612, and it has been determined
that it does not have sufficient federalism implications to warrant the
preparation of a Federalism Assessment.
List of Subjects in 33 CFR Part 165
Harbors, Marine safety, Navigation (water), Security measures,
Vessels, waterways.
Temporary Regulation
In consideration of the foregoing, Subpart F of Part 165 of Title
33, Code of Federal Regulations, is amended as follows:
1. The authority citation for part 165 continues to read as
follows:
Authority: 33 U.S.C. 1231; 50 U.S.C. 191; 33 CFR 1.05-1(g),
6.04-1, 6.04-6, and 160.5; 49 CFR 1.46.
2. A new Sec. 165.T05-004 is added to read as follows:
Sec. 165.T05-004 Safety Zone: Marcus Hook, PA and the Delaware
Breakwater.
(a) Location: A safety zone is established for:
(1) All waters within an area which extends 500 yards on either
side and 1,000 yards ahead and astern of the T/V HAVPRINS while the T/V
HAVPRINS is underway on the Delaware River in a loaded condition in the
area bounded by the Delaware Breakwater and the Sun Refining and
Marketing Refinery terminal at Marcus Hook, Pennsylvania.
(2) All waters within a 200 yard radius of the T/V HAVPRINS while
it is moored at the Sun Refining and
[[Page 2419]]
Marketing Refinery terminal in a loaded condition.
(b) Effective Date: This section is effective from 11:59 p.m.,
January 19, 1996 to 11:59 a.m., January 29, 1996. If the conditions
requiring a safety zone terminate at an earlier date, the Captain of
the Port, Philadelphia, may advise mariners by Broadcast Notice to
Mariners that the safety zone will not be enforced.
(c) Regulations: (1) No person or vessel may enter the safety zone
unless its operator obtains permission of the Captain of the Port or
his designated representative.
(d) As a condition of entry, the COTP or his designated
representative may order that each vessel:
(1) Maintain a continuous radio guard on channel 16 and channel 13
VHF-FM while underway;
(2) Proceed as directed by the designated representative of the
Captain of the Port, Philadelphia;
(3) Not overtake the T/V HAVPRINS unless the overtaking is to be
completed before any bends in the channel, and the pilots, masters and
operators of both vessels clearly agree on all actions including vessel
speeds, time and location of overtaking; and
(4) When above the C&D Canal, not meet the T/V HAVPRINS at a
relative speed greater than twenty (20) knots, or greater than
prevailing weather conditions make prudent. The COTP will not permit
meeting situations on river bends absent exigent circumstances related
to safe navigation of either vessel.
(e) Definitions: The following definitions shall apply within the
safety zone.
(1) The designated representative of the Captain of the Port is any
Coast Guard commissioned, warrant, or petty officer who has been
authorized by the Captain of the Port, Philadelphia, Pennsylvania to
act on his behalf. The designated representative enforcing the safety
zone may be contacted on VHF channels 13 and 16. The Captain of the
Port of Philadelphia and the Command Duty Officer at the Marine Safety
Office, Philadelphia, may be contacted at telephone number (215) 271-
4940.
(2) Loaded condition is LPG on board exceeding 2% of cargo tank
capacity of the vessel.
Dated: January 19, 1996.
John E. Veentjer,
Captain, U.S. Coast Guard, Captain of the Port, Philadelphia, PA.
[FR Doc. 96-1389 Filed 1-25-96; 8:45 am]
BILLING CODE 4910-14-M
Complete official Federal Register PDF
FR Doc. 96-1387 Safety Zone; Ohio River, Cincinnati, OH
[Federal Register Volume 61, Number 18 (Friday, January 26, 1996)]
[Rules and Regulations]
[Pages 2417-2418]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-1387]
-----------------------------------------------------------------------
DEPARTMENT OF TRANSPORTATION
33 CFR Part 165
[COTP Louisville 96-001]
RIN 2115-AA97
Safety Zone; Ohio River, Cincinnati, OH
AGENCY: Coast Guard, DOT.
ACTION: Temporary rule.
-----------------------------------------------------------------------
SUMMARY: The Coast Guard is establishing a temporary safety zone on the
Ohio River. The regulation is needed to control commercial vessel
traffic in the regulated area while transiting downbound at night
during high water conditions. The regulation will restrict commercial
navigation in the regulated area for the safety of vessel traffic and
the protection of life and property along the river.
EFFECTIVE DATES: This regulation is effective on January 19, 1996, at 2
p.m. est. It will terminate at 8 a.m. est. on February 1, 1996, unless
sooner terminated by the Captain of the Port Louisville, Kentucky.
FOR FURTHER INFORMATION CONTACT:
LT Paul D. Thorne, Supervisor, Coast Guard Marine Safety Detachment,
Cincinnati, Ohio at (513) 922-3820.
SUPPLEMENTARY INFORMATION:
Background and Purpose
The situation requiring this regulation is high water in the Ohio
River in the vicinity of Cincinnati, Ohio. The Ohio River in the
Cincinnati area is hazardous to transit under the best conditions. To
transit the area, mariners must navigate through several sweeping turns
and seven bridges. When the water level in the Ohio River reaches 45
feet, on the Cincinnati gage, river currents increase and become very
unpredictable, making it difficult for downbound vessels to maintain
steerageway. During hours of darkness the background lights of the city
of Cincinnati hamper mariners' ability to maintain sight of the front
of their tow. The regulation is intended to protect the public and the
environment, at night during periods of high water, from a potential
hazard of large downbound tows carrying hazardous material through the
regulated area.
In accordance with 5 U.S.C. 553, a notice of proposed rulemaking
has not been published for this regulation and good cause exists for
making it effective in less than 30 days from the date of publication.
Following normal rulemaking procedures would have been impracticable.
Specifically, the high water periods in the Cincinnati, Ohio, area are
natural events which cannot be predicted with any reasonable accuracy.
The Coast Guard deems it to be in the public's best interest to issue a
regulation now, as the situation presents an immediate hazard to
navigation, life, and property.
Regulatory Evaluation
This rule is not a significant regulatory action under section 3(f)
of Executive Order 12866 and does not require an assessment of
potential costs and benefits under section 6(a)(3) of that order. It
has been exempted from review by the Office of Management and Budget
under that order. It is not under the regulatory policies and
procedures of the Department of Transportation (DOT) (44 FR 11040;
February 26, 1979). Because the duration of this emergency situation is
anticipated to be short, the Coast Guard expects the economic impact of
this regulation to be so minimal that a full Regulatory Evaluation
under paragraph 10e of the regulatory policies and procedures of DOT is
unnecessary.
To avoid any unnecessary adverse economic impact on businesses
which use the river for commercial purposes, Captain of the Port
Louisville, Kentucky, will monitor river conditions and will authorize
entry of restricted vessels into the regulated area as conditions
permit. Changes will be announced by Marine Safety Information Radio
broadcast (Broadcast Notice to Mariners) on VHF marine band radio,
channel 22 (157.1 MHZ). Mariners may also call LT Paul D. Thorne,
Supervisor, Coast Guard Marine Safety Detachment, Cincinnati, Ohio at
(513) 922-3820 for current information.
Collection of Information
This rule contains no collection of information requirements under
the Paperwork Reduction Act (44 U.S.C. 3501 et seq).
Federalism Assessment
The Coast Guard has analyzed this regulation under the principles
and criteria contained in Executive Order 12612 and has determined that
it does not raise sufficient federalism implications to warrant the
preparation of a Federalism Assessment.
Environment
The Coast Guard considered the environmental impact of this
regulation and concluded that, under section 2.B.2. of Commandant
Instruction M16475.1B, this rule is categorically excluded from further
environmental documentation.
Lists of Subjects in 33 CFR Part 165
Harbors, Marine safety, Navigation (water), Reporting and
recordkeeping requirements, Security measures, Waterways.
For the reasons set out in the preamble, the Coast Guard amends 33
CFR Part 165 as follows:
1. The authority citation for Part 165 continues to read as
follows:
[[Page 2418]]
Authority: 33 U.S.C. 1231; 50 U.S.C. 191; 33 CFR 1.05-1(g),
6.04-1, 6.04-6, and 160.5; 49 CFR 1.46.
2. A new temporary Sec. 165.T02-071 is added, to read as follows:
Sec. 165.T02-071 Safety Zone: Ohio River, Cincinnati, OH.
(a) Location. The following area is a safety zone: The Ohio River
between miles 468.5 and 473.0.
(b) Effective Dates. This regulation becomes effective on January
19, 1996, at 2 p.m. est. It will terminate at 8 a.m. est on February 1,
1996, unless sooner terminated by the Captain of the Port Louisville,
Kentucky.
(c) Regulations. In accordance with the general regulations of
Sec. 165.23 of this part, entry into this zone by all downbound vessels
towing cargoes regulated by Title 46, Code of Federal Regulations,
Subchapters D and O with a tow length exceeding 600 feet, excluding the
tow boat, is prohibited from one-half hour before sunset to one-half
hour after sunrise. The Captain of the Port will notify the maritime
community of river conditions affecting the area covered by this safety
zone by Marine Safety Information Radio Broadcast on VHF Marine Band
Radio, Channel 22 (157.1 MHZ).
Dated: January 19, 1996.
B.D. Branham,
Commander, U.S. Coast Guard, Captain of the Port, Louisville, Kentucky.
[FR Doc. 96-1387 Filed 1-25-96; 8:45 am]
BILLING CODE 4910-14-M
Complete official Federal Register PDF
FR Doc. 96-1386 Regulated Navigation Area; Ohio River Mile 466.0 to Mile 473.0
[Federal Register Volume 61, Number 18 (Friday, January 26, 1996)]
[Rules and Regulations]
[Pages 2415-2417]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-1386]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF TRANSPORTATION
Coast Guard
33 CFR Part 165
[CGD02-95-003]
RIN 2115-AE84
Regulated Navigation Area; Ohio River Mile 466.0 to Mile 473.0
AGENCY: Coast Guard, DOT.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Coast Guard is establishing a regulated navigation area on
the Ohio River in the Cincinnati, OH area. The rule is needed to
control vessel traffic while transiting downbound at night during high
water conditions in the regulated area. The rule will restrict
commercial navigation in the regulated area for the safety of vessel
traffic and the protection of life and property along the river.
EFFECTIVE DATE: This rule is effective February 26, 1996.
ADDRESSES: The Commanding Officer, U.S. Coast Guard Marine Safety
Office, Louisville, KY, maintains the public docket for this rule. The
documents and
[[Page 2416]]
other materials referenced in this notice will be available for
inspection at the U.S. Coast Guard Marine Safety Office, 600 Martin
Luther King Place, Room 360, Louisville, KY 40202-2230. Normal office
hours are between 7:30 a.m. and 4 p.m., Monday through Friday, except
holidays.
FOR FURTHER INFORMATION CONTACT:
Lieutenant Gregory A. Howard, Project Officer, U.S. Coast Guard Marine
Safety Office, Louisville, Kentucky at (502) 582-5194.
SUPPLEMENTARY INFORMATION:
Drafting Information: The principal persons involved in drafting
this document are Lieutenant Gregory A. Howard, Project Officer for
the Captain of the Port, Louisville, Kentucky (502) 582-5196 and
Lieutenant S. Moody, Project Attorney, Second Coast Guard District
Legal Office, St. Louis, MO (314) 539-3900.
Background and Purpose
On May 16, 1995 the Notice of Proposed Rule Making was published in
the Federal Register at 60 FR 26012. No comments were received from the
date of publication of the proposed rule until the end of the comment
period on July 17, 1995. Therefore the Coast Guard is establishing this
regulated navigation area by this final rule with only a minor change
to the proposed rule.
The situation requiring this regulation is periodic high water
conditions on the Ohio River in the vicinity of Cincinnati, Ohio. The
Ohio River in the Cincinnati area is hazardous to transit under the
best conditions. To transit the area, mariners must navigate through
several sweeping turns and seven bridges. When the water level in the
Ohio River reaches 45 feet on the Cincinnati gauge, river currents
increase and become very unpredictable, making it difficult for
downbound vessels to maintain steerageway. During the period of 1983-
1993 there were 13 marine casualties involving towboats from mile 468.5
to mile 473.0 on the Ohio River. A review of the case documentation
showed that seven of the thirteen cases mentioned high water
specifically or used terms such as ``swift current'' or ``heavy
current'' as contributing factors to the casualties. Nine of these
cases involved tows greater than 600 feet in length; six of the cases
involved downbound tows; and five cases occurred at night. During hours
of darkness the background lights of the city of Cincinnati hamper
mariners' ability to maintain sight of the front of their tow. This
rule is intended to protect the public and the environment, at night
during periods of high water, from a potential hazard of large
downbound tows carrying hazardous material through the regulated area.
In the past, the Captain of the Port, Louisville, Kentucky has
responded to this hazard by issuing a Temporary Final Rule to establish
a Safety Zone in the area when warranted by high water conditions. This
rule is intended to establish a permanent Regulated Navigation Area in
which restrictions are activated and deactivated as a function of river
level. The number of days that traffic will be affected by this rule
will vary from several days to several weeks depending on the river
levels. A permanent Regulated Navigation Area will permit vessels and
commerce using the Ohio River to plan and schedule their tow traffic
accordingly.
Discussion of Regulations
This rule would establish a Regulated Navigation Area on the Ohio
River in the Cincinnati, Ohio area. The restrictions for the Regulated
Navigation Area will only be in effect from one-half hour before sunset
to one-half hour after sunrise whenever the river level is at or above
45 on the Cincinnati gauge. The rule prohibits transit by downbound
tows containing cargoes regulated by title 46 Code of Federal
Regulations Subchapter D and O which have a tow length exceeding 600
feet in length not including the tow boat; requires all commercial
vessels in the regulated navigation area to monitor VHF-FM
radiotelephone Channel 13; requires all downbound commercial vessels to
attempt to contact other vessels in the regulated navigation area
shortly before entering the area (this is a change from the Notice of
Proposed Rule Making which required contact shortly after entering the
area); and prohibits vessels from loitering in the navigation channel.
Since the water level of the Ohio River is seasonal and not
predictable, establishing fixed calendar dates for the regulation is
not practical. The rule is structured to permit the Captain of the
Port, Louisville, Kentucky to activate or deactivate the regulated
navigable area by issuing the proper notices. Broadcast Notice to
Mariners will be issued in anticipation of high water, then again when
the river reaches 45 feet, and then a termination broadcast will be
issued when the river falls below 45 feet.
These regulations are needed due to the hazardous conditions that
exist for all vessels transiting the Cincinnati area when the Ohio
River is at high water during hours of darkness.
Regulatory Evaluation
This rule is not a significant regulatory action under section 3(f)
of Executive Order 12866 and does not require an assessment of
potential costs and benefits under section 6(a)(3) of that order. It
has been exempted from review by the Office of Management and Budget
under that order. It is not significant under the regulatory policies
and procedures of the Department of Transportation (DOT) (44 FR 11040;
February 26, 1979). The Coast Guard expects the economic impact of this
rule to be so minimal that a full Regulatory Evaluation under paragraph
10e of the regulatory policies and procedures of DOT is unnecessary.
Small Entities
Under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.), the
Coast Guard must consider whether this rule will have a significant
economic impact on a substantial number of small entities. ``Small
entities'' include independently owned and operated small businesses
that are not dominant in their field and that otherwise qualify as
``small business concerns'' under section 3 of the Small Business Act
(15 U.S.C. 632).
Because it expects the impact of this rule to be minimal, the Coast
Guard certifies under 5 U.S.C. 605(b) that this rule will not have a
significant economic impact on a substantial number of small entities.
Collection of Information
This rule contains no collection of information requirements under
the Paperwork Reduction Act (44 U.S.C. 3501 et seq.).
Federalism Assessment
The Coast Guard has analyzed this rule in accordance with the
principles and criteria of Executive Order 12612, and has determined
that this rule does not have sufficient federalism implications to
warrant the preparation of a Federalism Assessment.
Environmental Assessment
The Coast Guard considered the environmental impact of this rule
and concluded that, under section 2.B.2 of Commandant Instruction
M16475.1B, as revised by 59 FR 38654; July 29, 1994, this rule is
categorically excluded from further environmental documentation as an
action required to protect the public and the environment.
List of Subjects in 33 CFR Part 165
Harbors, Marine safety, Navigation (Water), Reporting and
recordkeeping requirements, Security measures, Waterways.
For the reasons set out in the preamble, The Coast Guard amends
[[Page 2417]]
Subpart F of Part 165 of Title 33, Code of Federal Regulations, as
follows:
PART 165--[AMENDED]
1. The authority citation for Part 165 continues to read as
follows:
Authority: 33 U.S.C. 1231; 50 U.S.C. 191; 33 CFR 1.05-1(g),
6.04-1, 6.04-6, and 160.5; 49 CFR 1.46.
2. A new Sec. 165.205 is added to read as follows;
Sec. 165.205 Ohio River at Cincinnati, OH; regulated navigation area.
(a) Location. The following is a regulated navigation area (RNA)--
The waters of the Ohio River between mile 466.0 and mile 473.0.
(b) Activation. The restrictions in paragraphs (c) (i) through (iv)
are in effect from one-half hour before sunset to one-half hour after
sunrise when the Cincinnati, Ohio, Ohio River Gauge is at or above the
45 foot level. The Captain of the Port, Louisville, Kentucky will
publish a notice in the Local Notice to Mariners and will make
announcements by Coast Guard Marine Information Broadcasts whenever the
river level measured at the gauge activates or terminates the
navigation restrictions in this section.
(c) Regulations.
(i) Transit through the RNA by all downbound vessels towing cargoes
regulated by Title 46 Code of Federal Regulations Subchapters D and O
with a tow length exceeding 600 feet excluding the tow boat is
prohibited.
(ii) No vessel shall loiter, anchor, stop, remain or drift without
power at any time within the navigation channel of the RNA.
(iii) All commercial vessels shall continually monitor VHF-FM
channel 13 on their radiotelephone while in or approaching the RNA.
(iv) Between Ohio River miles 464.0 and 466.0, downbound vessels
shall make a broadcast in the blind, on VHF-FM channel 13 announcing
their estimated time of entering the RNA.
Dated: January 9, 1996.
Paul M. Blayney,
Rear Admiral, U.S. Coast Guard, Commander, Second Coast Guard District,
St. Louis, MO.
[FR Doc. 96-1386 Filed 1-25-96; 8:45 am]
BILLING CODE 4910-14-M
Complete official Federal Register PDF
FR Doc. 96-1338 Export of River Otters Taken in Tennessee in the 1995-96 and Subsequent Seasons
[Federal Register Volume 61, Number 18 (Friday, January 26, 1996)]
[Rules and Regulations]
[Pages 2454-2457]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-1338]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 23
RIN 1018-AC70
Export of River Otters Taken in Tennessee in the 1995-96 and
Subsequent Seasons
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Convention on International Trade in Endangered Species of
Wild Fauna and Flora (CITES) regulates international trade in certain
animal and plant species. Exports of animals and plants listed on
Appendix II of CITES require an export permit from the country of
origin. As a general rule, export permits are only issued after two
conditions are met. First, the exporting country's CITES Scientific
Authority must advise the permit-issuing CITES Management Authority
that such exports will not be detrimental to the survival of the
species. Then the Management Authority must make a determination that
the animals or plants were not obtained in violation of laws for their
protection. If live specimens are being exported, the Management
Authority must also determine that the specimens are being shipped in a
humane manner with minimal risk of injury or damage to health.
This document announces final findings by the Scientific and
Management Authorities of the United States that approve the addition
of Tennessee to the list of States and Indian Nations for which the
export of river otters is approved. The Service intends to apply these
findings to harvests in Tennessee during the 1995-96 season and
subsequent seasons, subject to the same conditions applying to States
previously approved.
EFFECTIVE DATE: January 26, 1996.
FOR FURTHER INFORMATION CONTACT: Scientific Authority Finding--Dr.
Marshall A. Howe, Office of Scientific Authority; phone 703-358-1708;
fax 703-358-2276.
Management Authority Finding/State Export Programs/Export Permits--
Ms. Carol Carson, Office of Management Authority; phone 703-358-2095;
fax 703-358-2280.
SUPPLEMENTARY INFORMATION: CITES regulates import, export, re-export,
and introduction from the sea of certain animal and plant species.
Species for which the trade is controlled are
[[Page 2455]]
included in three appendices. Appendix I includes species threatened
with extinction that are or may be affected by trade. Appendix II
includes species that, although not necessarily now threatened with
extinction, may become so unless trade in them is strictly controlled.
It also lists other species that must be subject to regulation in order
that trade in currently or potentially threatened species may be
brought under effective control (e.g., species difficult to distinguish
from currently or potentially threatened species). Appendix III
includes species that any Party identifies as being subject to
regulation within its jurisdiction for purposes of preventing or
restricting exploitation, and for which it needs the cooperation of
other Parties to control trade.
In the January 5, 1984, Federal Register (49 FR 590), the Service
announced the decision made at the Fourth Conference of the CITES
Parties that certain species of furbearing mammals, including the river
otter, should be regarded as being listed in Appendix II of CITES
because of similarity in appearance to other listed species or
geographically separate populations. The January 5, 1984, notice also
contained a rule approving the export of specimens of one or more such
furbearing species taken in specified States and Indian Nations and
Tribes during the 1983-84 and subsequent harvest seasons. Subsequently,
export of specimens taken in several additional States and Indian
Nations, Tribes, or Reservations was similarly approved through the
rulemaking process.
The January 5, 1984, document described how the Service, as
Scientific Authority, planned to monitor annually the population and
trade status of each of these species and to institute restrictive
export controls if prevailing export levels appeared to be contributing
to a long-term population decline. The document also described how the
Service, as Management Authority, would require States to assure that
specimens entering trade are marked with approved, serially unique tags
as evidence that they had been legally acquired.
This is the second Federal Register document concerning the
Service's findings on export of river otters, Lontra (formerly Lutra)
canadensis taken in Tennessee. The first document (60 FR 39347; August
2, 1995) announced the Service's proposed findings on the export of
river otters taken in Tennessee in the 1995-96 season and subsequent
seasons and solicited public comments.
The purpose of this rule is to add Tennessee to the list of States
and Indian Nations for which the export of river otters is approved (50
CFR Sec. 23.53). The Service will apply these findings to harvests in
Tennessee during the 1995-96 season and subsequent seasons, subject to
the same conditions applying to other approved entities.
Comments and Information Received
No comments or information were received concerning the August 2,
1995, Federal Register (60 FR 39347) notice proposing export of river
otters taken in the State of Tennessee.
Scientific Authority Findings
Article IV of CITES requires that, before a permit to export a
specimen of a species included in Appendix II can be granted by the
Management Authority of an exporting country, the Scientific Authority
must advise ``that such export will not be detrimental to the survival
of that species.'' The Scientific Authority for the United States must
develop such advice, known as a no-detriment finding, for the export of
Appendix II animals in accordance with Section 8A(c)(2) of the
Endangered Species Act of 1973, as amended (the Act). The Act states
that the Secretary of the Interior is required to base export
determinations and advice ``upon the best available biological
information derived from professionally accepted wildlife management
practices; but is not required to make, or require any State to make,
estimates of population size in making such determinations or giving
such advice.''
Because the river otter is listed on Appendix II of CITES primarily
because of similarity of appearance to other listed species in need of
rigorous trade controls, an important component of the no-detriment
finding by the Scientific Authority is consideration of the impact of
river otter trade on the status of these other species. The Scientific
Authority has determined that the dual practice of (1) issuing export
permits naming the species being traded and (2) marking pelts with tags
bearing the name of the species, country and State of origin, year of
harvest, and a unique serial number, is sufficient to eliminate
potential problems of confusion with other listed species (see
Management Authority Findings for tag specifications).
Primary responsibility for managing river otters lies with wildlife
agencies of individual States or Indian Nations. Each export-approved
State or Indian Nation in which this animal is harvested (50 CFR
Sec. 23.53) collects and reports various kinds of information as part
of their harvest management programs. In addition to considering the
effect of river otter trade on other CITES-listed species, the Service
regularly examines information from these State or Indian Nation
harvest management programs. This ongoing monitoring and assessment is
in accordance with the January 5, 1984, Federal Register (49 FR 590).
Whenever available information indicates a possible problem in a
particular State, the Scientific Authority will conduct a comprehensive
review of accumulated information to determine whether conclusions
about the treatment of these species as listed for similarity of
appearance need to be adjusted in the State. Approved entities are
requested annually to certify that the best available biological
information derived from professionally accepted wildlife management
practices indicates that harvest of river otters during the forthcoming
season will not be detrimental to the survival of the species.
Natural repopulation of river otters has been occurring in western
Tennessee since the 1950's. This increase is consistent with a
widespread pattern in the United States and is believed, in part, to
reflect colonization of suitable habitat created recently by a rapidly
expanding beaver population. The Tennessee Wildlife Resources Agency
has supported a study of the demography, food habits, and habitat use
of river otters in the State. The results of these studies show that
age and sex ratios of river otters in western Tennessee are similar to
those of healthy river otter populations elsewhere, including
populations experiencing harvest.
The Tennessee Wildlife Resources Agency conducted experimental
river otter trapping seasons annually from the 1989-90 season through
the 1994-95 season in the western part of the State. Total annual
harvest has ranged from 71 (1990-91) to 230 (1994-95). In the central
and eastern parts of Tennessee, this species is still classified under
State law as threatened and is not legally harvested at this time. The
available biological and harvest information leads the Service to
conclude that export of river otters legally harvested in Tennessee
will not be detrimental to the survival of the species.
All otters taken by trappers are required to be marked with special
tags approved by the Tennessee Wildlife Resources Agency. The State
also conducts a questionnaire survey of licensed trappers annually.
These surveys identify the size and geographic derivation of the river
otter harvest and will provide insight into State river otter
population trends over time. Analysis of these data should detect
population declines symptomatic of either an
[[Page 2456]]
unhealthy population or overharvest in time to take corrective action
through regulatory adjustments or other means.
Based upon (a) the information presented by the Tennessee Wildlife
Resources Agency, including river otter harvest regulations, and (b)
the determination that permitting and tagging requirements will
eliminate the possibility that other similar-appearing, CITES-listed
species in trade will be misrepresented as river otters, the Scientific
Authority finds that export of river otters harvested in 1995-96 and
subsequent seasons from Tennessee will not be detrimental to the
survival of the species or to the survival of other species the river
otter is listed to protect.
Management Authority Findings
Exports of Appendix II species are allowed under CITES only if the
Management Authority is satisfied that the specimens were not obtained
in contravention of laws for the protection of the involved species.
The Service, therefore, must be satisfied that the river otter pelts,
hides, or products being exported were not obtained in violation of
State, Indian Nation, Tribal, Reservation, or Federal law in order to
allow export. A system based on tagging requirements, to determine
whether specimens have been lawfully acquired, was stipulated in the
January 5, 1984, Federal Register (49 FR 590). The Service has
continued to monitor the implementation of these regulations and
considers that these programs provide reasonable assurance that river
otter specimens being exported were not obtained in violation of laws
established for their protection. The Management Authority finds that
the State of Tennessee has demonstrated the capability to manage a
tagging program according to these requirements.
Export Approval
This document represents the final administrative step in
procedures established to authorize export of river otters and other
designated furbearing mammals from Service-approved States and Indian
Nations and Tribes in accordance with CITES. Accordingly, the export of
Tennessee river otters harvested during the 1995-96 and subsequent
harvest seasons is now approved, on the grounds that both Scientific
Authority and Management Authority criteria have been satisfied.
The Department has determined, within the meaning of 5 U.S.C.
553(d) (1) and (3) of the Administrative Procedure Act, that there is
good cause to make these findings and rule effective immediately. It is
the Department's opinion that a delay in the effective date of the
regulations after this rule is published could affect the export of
pelts taken in the harvest season that is about to begin in Tennessee.
Such delays could have adverse economic impacts on individual trappers
and dealers that are directly affected by the finding. Because
Scientific and Management Authority criteria have been satisfied, it
follows that making this rule effective immediately will not adversely
affect the species involved. This approval is subject to revision prior
to any subsequent taking season in any State, Indian Nation, or Indian
Tribe, if a review of information reveals that Management Authority or
Scientific Authority findings in favor of export should be changed.
Effects of the Rule and Required Determinations
The Department has previously determined (48 FR 37494, August 18,
1983) that the export of river otters of various States and Indian
Tribes or Nations, taken in the 1983-84 and subsequent harvest seasons,
is not a major Federal action that would significantly affect the
quality of the human environment under the National Environmental
Policy Act (42 U.S.C. 4321-4347). This action is covered under an
existing Departmental categorical exclusion for amendments to approved
actions when such changes have no potential for causing substantial
environmental impact.
This rule was not subject to Office of Management and Budget review
under Executive Order 12866 and will not have significant economic
effects on a substantial number of small entities as outlined under the
Regulatory Flexibility Act (5 U.S.C. 601 et seq.). Because the existing
rule treats exports on a State-by-State and Indian Nation-by-Indian
Nation basis and proposes to approve export in accordance with a State
or Indian Nation, Tribe, or Reservation management program, the rule
will have little effect on small entities in and of itself. The rule
will allow continued international trade in river otters from the
United States in accordance with CITES, and it does not contain any
Federalism impacts as described in Executive Order 12612.
This rule has been examined under the Paperwork Reduction Act of
1995 and has been found to contain no information collection
requirements.
This rule is issued under authority of the Endangered Species Act
of 1973 as amended (16 U.S.C. 1531 et seq.). The authors are Marshall
A. Howe, Office of Scientific Authority, and Carol Carson, Office of
Management Authority.
List of Subjects in 50 CFR Part 23
Endangered and threatened species, Exports, Imports, Treaties.
Regulation Promulgation
For reasons set forth in the preamble of this document, Part 23 of
Title 50, Code of Federal Regulations, is amended as follows:
PART 23--ENDANGERED SPECIES CONVENTION
1. The authority citation for Part 23 is revised to read as
follows:
Authority: Convention on International Trade in Endangered
Species of Wild Fauna and Flora, 27 U.S.T. 1087; and Endangered
Species Act of 1973, as amended, 16 U.S.C. 1531 et seq.
2. In Subpart F--Export of Certain Species, revise Sec. 23.53 to
read as follows:
Sec. 23.53 River otter (Lontra canadensis).
States for which the export of the indicated season's harvest may
be permitted under Sec. 23.15 of this part:
(a) States and Harvest Seasons Approved for Export of River Otter
From the United States.
--------------------------------------------------------------------------------------------------------------------------------------------------------
1983-84 and 1995-96 and
1977-78 \1\ 1978-79 \2\ 1979-80 \3\ 1980-81 1981-82 1982-83 subse- quent subse- quent
--------------------------------------------------------------------------------------------------------------------------------------------------------
Alabama................................. Q + + + + + + +
Alaska.................................. + + + + + + + +
Arkansas................................ Q + + + + + + +
Connecticut............................. Q + + + + + + +
Delaware................................ Q + + + + + + +
Florida................................. Q + + + + + + +
Georgia................................. Q + + + + + + +
Louisiana............................... Q + + + + + + +
[[Page 2457]]
Maine................................... Q + + + + + + +
Maryland................................ Q + + + + + + +
Massachusetts........................... Q + + + + + + +
Michigan................................ Q + + + + + + +
Minnesota............................... Q + + + + + + +
Mississippi............................. Q + + + + + + +
Montana................................. Q + + + + + + +
New Hampshire........................... Q + + + + + + +
New Jersey.............................. - - - - - + + +
New York................................ Q + + + + + + +
North Carolina.......................... Q + + + + + + +
Oregon.................................. Q + + + + + + +
Penobscot Nation........................ - - - - - - + +
Rhode Island............................ Q + - - - - - -
South Carolina.......................... Q + + + + + + +
Tennessee............................... - - - - - - - +*
Vermont................................. Q + + + + + + +
Virginia................................ Q + + + + + + +
Washington.............................. Q + + + + + + +
Wisconsin............................... Q + + + + + + +
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ For further information see 42 FR 43729, Aug. 30, 1977; 43 FR 11081, Mar. 16, 1978; and 43 FR 29469, July 7, 1978.
\2\ For further information see 43 FR 11096, Mar. 16, 1978; 43 FR 13913, Apr. 3, 1978; 43 FR 15097, Apr. 10, 1978; 43 FR 29469, July 7, 1978; 43 FR
35013, Aug. 7, 1978; 43 FR 36293, Aug. 16, 1978; and 43 FR 39305, Sept. 1, 1978.
\3\ For further information see 44 FR 25383, Apr. 30, 1979; 44 FR 31583, May 31, 1979; 44 FR 40842, July 12, 1979; 44 FR 52289, Sept. 7, 1979; and 44 FR
55540, Sept. 26, 1979.
Q --Export approved with quota.
+ --Export approved.
- --Export not approved.
* --Export for 1994-95 approved administratively.
(b) Condition on export: Each pelt must be clearly identified as to
species, State of origin and season of taking by a permanently
attached, serially numbered tag of a type approved by the Service and
attached under conditions established by the Service. Exception to
tagging requirement: finished furs and fully manufactured fur products
may be exported from the United States when the State export tags,
removed from the pelts used to manufacture the product being exported,
are surrendered to the Service before export. Such tags must be removed
by cutting the tag straps on the female side next to the locking socket
of the tag, so that the locking socket and locking tip remain joined.
Dated: November 28, 1995.
George T. Frampton, Jr.,
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 96-1338 Filed 1-25-96; 8:45 am]
BILLING CODE 4310-55-P
Complete official Federal Register PDF
FR Doc. 96-1327 Preliminary Vessel Entry and Permits to Lade and Unlade
[Federal Register Volume 61, Number 18 (Friday, January 26, 1996)]
[Rules and Regulations]
[Pages 2412-2414]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-1327]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF THE TREASURY
Customs Service
19 CFR PART 4
[T.D. 96-11]
RIN 1515-AB37
Preliminary Vessel Entry and Permits to Lade and Unlade
AGENCY: U.S. Customs Service, Department of the Treasury.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: This document amends the Customs Regulations regarding the
preliminary entry of vessels arriving in ports of the United States and
the granting of permits for the lading and unlading of merchandise from
those vessels. The Customs Regulations regarding this subject are being
amended to accurately reflect recent changes to the underlying
statutory authority, enacted as part of the Customs Modernization Act.
EFFECTIVE DATE: February 26, 1996.
FOR FURTHER INFORMATION CONTACT: William Scopa, Office of Field
Operations, 202-927-3112 (operational matters), or Larry L. Burton,
202-482-6940 (legal matters).
SUPPLEMENTARY INFORMATION:
Background
On December 8, 1993, amendments to certain Customs and navigation
laws became effective as the result of the President signing Pub. L.
103-182, Title VI of which is popularly known as 2 the Customs
Modernization Act (the Act). Sections 653 and 656 of the Act
significantly amended the statutes governing the entry and the lading
and unlading of vessels in the United States. These operations are
governed, respectively, by sections 434 and 448 of the Tariff Act of
1930, as amended (19 U.S.C. 1434 and 1448).
Prior to these amendments, the entry of vessels of the United
States and vessels of foreign countries had been
[[Page 2413]]
governed by separate statutes (19 U.S.C. 1434 and 1435), neither of
which included elements concerning preliminary vessel entry or the
boarding of vessels. The Act repealed section 1435 and amended section
1434 to provide for the entry of American and foreign-documented
vessels under the same statute. Additionally, the amended section 1434
now provides authority for the promulgation of regulations regarding
preliminary vessel entry, and while neither mandating boarding for all
vessels nor specifying that optional boarding must be accomplished at
any particular stage of the vessel entry process, the amended law does
require that a sufficient number of vessels be boarded to ensure
compliance with the laws enforced by the Customs Service.
Section 1448 had previously linked the granting of preliminary
vessel entry to a mandatory boarding requirement and the physical
presentation of manifest documents to the Customs boarding officer. The
amended section 1448 no longer contains provisions regarding
preliminary vessel entry, vessel boarding, or manifest presentation,
matters which are now provided for in other statutes. Section 1448 now
states that Customs may electronically issue permits to lade or unlade
merchandise, pursuant to an authorized data interchange system.
The regulations which implement the statutory authority for the
granting of preliminary vessel entry and the issuance of permits to
lade and unlade merchandise are contained in sections 4.8 and 4.30 of
the Customs Regulations (19 CFR 4.8 and 4.30). These provisions still
contain mandatory boarding and physical document presentation
requirements, and of course do not include any reference to an
electronic permit issuance option.
On March 18, 1994, a document was published in the Federal Register
(59 FR 12878) soliciting comments regarding a proposal to amend
sections 4.8 and 4.30 of the Customs Regulations (19 CFR 4.8 and 4.30),
in order to properly implement the amended statutory authority. This
document considers the comments received and amends the cited sections
of the Customs Regulations.
Discussion of Comments
Thirty comments were received in response to the proposal. There
were thirteen comments received from vessel operators, nine from vessel
agents, six from vessel and import trade groups, one from a customs
broker, and one from a labor union. Of the thirty comments received,
twenty-eight of them expressed enthusiastic and unqualified support for
the published proposal. A discussion of the remaining comments follows.
Comment: One commenter stated that while the inclusion of elements
concerning the electronic transmission of information was both welcome
and necessary, our proposal was ``vague'' in this regard. It is stated
that if the authorized electronic system contemplated by Customs is one
which will be used with the Automated Commercial System (ACS), that
fact should have been made clear and guidelines should have been
published. The question of compliance by Customs with 19 U.S.C. 1412,
as enacted by section 631 of the Customs Modernization Act, was also
raised. The newly enacted section provides, in its entirety, that with
regard to the National Customs Automation Program (the Program):
The goals of the Program are to ensure that all regulations and
rulings that are administered or enforced by the Customs Service are
administered and enforced in a manner that--
(1) is uniform and consistent;
(2) is as minimally intrusive upon the normal flow of business
activity as practicable; and
(3) improves compliance.
The commenter goes on to urge that if Customs is contemplating
revised requirements for the submission of information electronically,
that existing legal considerations concerning electronic commercial
document transactions be taken into account.
Response: The quoted statutory language merely recites the goals of
the automation program when that program is eventually devised and
published. The amendments presented in this document do not implement
an automation program; they are simply intended to authorize the
voluntary utilization of such a system, once implemented, in
transacting operations under sections 4.8 and 4.30 of the regulations.
Further, Customs will implement regulations concerning how
electronic transmission of documents and information may be
accomplished only after a thorough investigation and with a full
appreciation of all legal and practical considerations. The process
will, as always, invite public participation.
Comment: One commenter correctly states that section 434, Tariff
Act of 1930 (as amended by section 653 of the Customs Modernization
Act) 19 U.S.C. 1434, places an affirmative obligation upon Customs to
board a sufficient number of vessels during the preliminary entry
process to ensure compliance with various provisions of law. The
commenter then goes on to rely upon language in the legislative history
relating to section 653 in an effort to fix the number of vessels to be
boarded. It is urged that the number of vessels boarded be published in
the Federal Register, and that the regulations themselves state that
the number of vessel boardings may not be decreased.
Response: The commenter does not suggest that the amended statute
is in any way ambiguous, and neither does Customs believe it to be.
With statutory authority clear on its face, there is no need to seek
clarification in the history of the law. The statute, in setting forth
that Customs shall board a sufficient number of vessels to ensure
compliance with the laws it administers, merely reinforces the
underlying current prevalent throughout the Customs Modernization Act.
That common theme is the vesting in Customs of broad discretion to
promulgate regulations and install procedures. There is no question
that Customs will continue to board vessels for the purpose of
enforcing the laws of the United States. Effectively ensuring
enforcement of U.S. laws can best be realized by boarding vessels when
circumstances suggest that a Customs presence is warranted, to include
random boardings. Boarding quotas will not further the ends of the
statute as reflected in its plain words.
Conclusion
After careful consideration of all comments received as well as
further review of the matter, it has been determined that the
amendments should be adopted as proposed.
Regulatory Flexibility Act
Pursuant to the provisions of the Regulatory Flexibility Act (5
U.S.C. 601 et seq.), it is certified that the amendments will not have
a significant economic impact on a substantial number of small
entities. Accordingly, they are not subject to the regulatory analysis
or other requirements of 5 U.S.C. 603 and 604.
Executive Order 12866
This document does not meet the criteria for a ``significant
regulatory action'' as specified in E.O. 12866.
Drafting Information
The principal author of this document was Larry L. Burton, Carrier
Rulings Branch, U.S. Customs Service. However, personnel from other
Customs offices participated in its development.
[[Page 2414]]
List of Subjects in 19 CFR Part 4
Customs duties and inspection, Reporting and recordkeeping
requirements, Vessels.
Amendments to the Regulations
Part 4, Customs Regulations (19 CFR Part 4), is amended as set
forth below.
PART 4--VESSELS IN FOREIGN AND DOMESTIC TRADES
1. The general authority citation for Part 4, Customs Regulations
(19 CFR Part 4) and specific authority citation for section 4.8
continue, and the specific authority citation for section 4.30 is
revised, to read as follows:
Authority: 5 U.S.C. 301; 19 U.S.C. 66, 1431, 1433, 1434, 1624;
46 U.S.C. App. 3, 91;
* * * * *
Section 4.8 also issued under 19 U.S.C. 1448, 1486;
* * * * *
Section 4.30 also issued under 19 U.S.C. 288, 1446, 1448, 1450-
1454, 1490;
* * * * *
2. Section 4.8 is revised to read as follows:
Sec. 4.8 Preliminary entry.
Preliminary entry allows a U.S. or foreign vessel arriving under
circumstances which require it to formally enter, to discharge cargo,
passengers, or baggage prior to making formal entry. The granting of
preliminary entry may be accomplished electronically pursuant to an
authorized electronic data interchange system, or by other means of
communication approved by the Customs Service. Preliminary entry must
be made in compliance with Sec. 4.30 of this part. The granting of
preliminary vessel entry by the Customs Service may be conditioned upon
the presentation of a completed Customs Form 1300 (Master's Certificate
on Preliminary Entry) to Customs during discretionary vessel boarding,
or upon the filing with Customs of a Customs Form 1300 or its
equivalent by electronic or other means in instances where vessels are
not boarded.
3. Section 4.30 (a) is amended by removing the period at the end
and adding the words ``or electronically pursuant to an authorized
electronic data interchange system or other means of communication
approved by the Customs Service.''
4. Section 4.30(b) is amended by adding after the phrase ``Customs
Form 3171,'' the words `` or electronically pursuant to an authorized
electronic data interchange system or other means of communication
approved by the Customs Service,''.
George J. Weise,
Commissioner of Customs.
Approved: November 24, 1995.
John P. Simpson,
Deputy Assistant Secretary of the Treasury.
[FR Doc. 96-1327 Filed 1-25-96; 8:45 am]
BILLING CODE 4820-02-P
Complete official Federal Register PDF
FR Doc. 96-1323 New Animal Drugs For Use In Animal Feeds; Chlortetracycline, Sulfathiazole, Penicillin
[Federal Register Volume 61, Number 18 (Friday, January 26, 1996)]
[Rules and Regulations]
[Pages 2414-2415]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-1323]
-----------------------------------------------------------------------
DEPARTMENT OF HEALTH AND HUMAN SERVICES
21 CFR Part 558
New Animal Drugs For Use In Animal Feeds; Chlortetracycline,
Sulfathiazole, Penicillin
AGENCY: Food and Drug Administration, HHS.
ACTION: Final rule.
-----------------------------------------------------------------------
[[Page 2415]]
SUMMARY: The Food and Drug Administration (FDA) is amending the animal
drug regulations to reflect approval of a supplemental new animal drug
application (NADA) filed by Fermenta Animal Health Co. The supplement
provides for use of fixed combination Type A medicated articles
containing chlortetracycline, sulfathiazole, and penicillin in making
Type B and C medicated swine feeds for swine from 10 pounds to 6 weeks
post-weaning.
EFFECTIVE DATE: January 26, 1996.
FOR FURTHER INFORMATION CONTACT: James F. McCormack, Center for
Veterinary Medicine (HFV-128), Food and Drug Administration, 7500
Standish Pl., Rockville, MD 20855, 301-594-1607.
SUPPLEMENTARY INFORMATION: Fermenta Animal Health Co., 10150 North
Executive Hills Blvd., Kansas City, MO 64153, filed a supplement to
NADA 39-077 CSPTM 250 (20 grams (g) of chlortetracycline (as the
hydrochloride), 20 g of sulfathiazole, and 10 g of penicillin (as
penicillin procaine), per pound) and CSPTM 500 (40 g of
chlortetracycline (as the hydrochloride), 40 g of sulfathiazole, and 20
g of penicillin (as penicillin procaine), per pound). The NADA provides
for use of fixed combination Type A medicated articles to make Type B
and C medicated swine feeds for prestarter, starter, grower, and
finisher rations. The supplement provides for prestarter and starter
rations to be given to swine from 10 pounds of body weight to 6 weeks
postweaning for reduction of incidence of cervical abscesses, treatment
of bacterial enteritis (salmonellosis or necrotic enteritis caused by
Salmonella choleraesuis and vibrionic dysentery), maintenance of weight
gains in the presence of atropic rhinitis, increased rate of weight
gain and improved feed efficiency. The supplement is approved as of
January 26, 1996, and the regulations are amended in Sec. 558.155 (21
CFR 558.155) to reflect the approval. The basis of approval is
discussed in the freedom of information summary.
In addition, the agency is revising the section heading for
Sec. 558.155 to reflect the active ingredients as on the label, i.e.,
that the product is known as chlortetracycline with sulfathiazole and
penicillin, not as chlortetracycline hydrochloride with procaine
penicillin and sulfathiazole. The approvals paragraph does specify the
salts and esters approved for use.
In Sec. 558.155(d) the feed consumption table is removed. The
performance or therapeutic claims of the product are based on ad
libitum consumption and not the minimum desired daily feed intake
consumption values reported in the table. This, together with changes
in weaning weights, renders the table obsolete. Also, the indications
for use are editorially revised to clarify the indications for each
feeding group.
The product, chlortetracycline, sulfathiazole, and penicillin, in
combination in a Type A medicated article, is a new animal drug used to
make Type B and Type C medicated feeds. As provided in Sec. 558.4(b),
the combination drug product is a Category II drug because it requires
a withdrawal period at its lowest continuous use level. Therefore, it
requires an approved Form FDA 1900 for making Type B or Type C
medicated feeds as in approved NADA 39-077 and in Sec. 558.155.
In accordance with the freedom of information provisions of part 20
(21 CFR part 20) and Sec. 514.11(e)(2)(ii) (21 CFR 514.11(e)(2)(ii)), a
summary of safety and effectiveness data and information submitted to
support approval of this application may be seen in the Dockets
Management Branch (HFA-305), Food and Drug Administration, rm. 1-23,
12420 Parklawn Dr., Rockville, MD 20857, between 9 a.m. and 4 p.m.,
Monday through Friday.
Under section 512(c)(2)(F)(iii) of the Federal Food, Drug, and
Cosmetic Act (21 U.S.C. 360b(c)(2)(F)(iii)), this supplemental approval
does not qualify for marketing exclusivity because the supplement does
not contain reports of new clinical or field investigations (other than
bioequivalence or residue studies) or human food safety studies (other
than bioequivalence or residue studies) essential to the approval and
conducted or sponsored by the applicant.
The agency has determined under 21 CFR 25.24(d)(1)(i) that this
action is of a type that does not individually or cumulatively have a
significant effect on the human environment. Therefore, neither an
environmental assessment nor an environmental impact statement is
required.
List of Subjects in 21 CFR Part 558
Animal drugs, Animal feeds.
Therefore, under the Federal Food, Drug, and Cosmetic Act and under
authority delegated to the Commissioner of Food and Drugs and
redelegated to the Center for Veterinary Medicine, 21 CFR part 558 is
amended as follows:
PART 558--NEW ANIMAL DRUGS FOR USE IN ANIMAL FEEDS
1. The authority citation for 21 CFR part 558 continues to read as
follows:
Authority: Sec. 512, 701 of the Federal Food, Drug, and Cosmetic
Act (21 U.S.C. 360b, 371).
2. Section 558.155 is amended by revising the section heading and
paragraphs (d)(2) and (d)(3) to read as follows:
Sec. 558.155 Chlortetracycline, sulfathiazole, penicillin.
-* * * * *
(d) * * *
(2) Indications for use. For reduction of incidence of cervical
abscesses. Treatment of bacterial enteritis (salmonellosis or necrotic
enteritis caused by Salmonella choleraesuis and vibrionic dysentery).
Maintenance of weight gains in the presence of atrophic rhinitis. Swine
10 pounds of body weight to 6 weeks post-weaning: Increased rate of
weight gain and improved feed efficiency. Swine 6 to 16 weeks post-
weaning: Increased rate of weight gain.
(3) Limitations. For swine raised in confinement (dry-lot) or on
limited pasture. Feed as sole ration. Withdraw 7 days prior to
slaughter.
Dated: January 3, 1996.
Robert C. Livingston,
Director, Office of New Animal Drug Evaluation, Center for Veterinary
Medicine.
[FR Doc. 96-1323 Filed 1-25-96; 8:45 am]
BILLING CODE 4160-01-F
Complete official Federal Register PDF
FR Doc. 96-1322 Delegations of Authority and Organization; Office of the Commissioner
[Federal Register Volume 61, Number 18 (Friday, January 26, 1996)]
[Rules and Regulations]
[Page 2414]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-1322]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF HEALTH AND HUMAN SERVICES
Food and Drug Administration
21 CFR Part 5
Delegations of Authority and Organization; Office of the
Commissioner
AGENCY: Food and Drug Administration, HHS.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Food and Drug Administration (FDA) is amending the
regulations for redelegations of authority from the Commissioner of
Food and Drugs to other officers of FDA in order to give the Associate
Commissioner for Policy Coordination, Office of Policy, authority to
issue Federal Register notices and proposed and final regulations for
FDA. This action is being taken in order to hasten the process of
issuing such notices and proposed and final regulations. This authority
may not be further redelegated at this time.
EFFECTIVE DATE: January 26, 1996.
FOR FURTHER INFORMATION CONTACT: Ellen Rawlings, Division of
Management, Systems and Policy (HFA-340), Food and Drug Administration,
5600 Fishers Lane, Rockville, MD 20857, 301-443-4976.
SUPPLEMENTARY INFORMATION: FDA is amending the regulations in Sec. 5.20
General redelegations of authority from the Commissioner to other
officers of the Food and Drug Administration (21 CFR 5.20) in order to
add the title of Associate Commissioner for Policy Coordination to
those authorized to issue Federal Register notices and proposed and
final regulations for FDA. This action is being taken in order to
hasten the process of issuing such notices and proposed and final
regulations.
Further redelegation of these authorities is not authorized at this
time. Authority delegated to a position by title may be exercised by a
person officially designated to serve in such position in an acting
capacity or on a temporary basis.
List of Subjects in 21 CFR Part 5
Authority delegations (Government agencies), Imports, Organization
and functions (Government agencies).
Therefore, under the Federal Food, Drug, and Cosmetic Act and under
authority delegated to the Commissioner of Food and Drugs, 21 CFR part
5 is amended as follows:
PART 5--DELEGATIONS OF AUTHORITY AND ORGANIZATION
1. The authority citation for 21 CFR part 5 continues to read as
follows:
Authority: 5 U.S.C. 504, 552, App. 2; 7 U.S.C. 138a, 2271; 15
U.S.C. 638, 1261-1282, 3701-3711a; secs. 2-12 of the Fair Packaging
and Labeling Act (15 U.S.C. 1451-1461); 21 U.S.C. 41-50, 61-63, 141-
149, 467f, 679(b), 801-886, 1031-1309; secs. 201-903 of the Federal
Food, Drug, and Cosmetic Act (21 U.S.C. 321-394); 35 U.S.C. 156;
secs. 301, 302, 303, 307, 310, 311, 351, 352, 354, 361, 362, 1701-
1706; 2101, 2125, 2127, 2128 of the Public Health Service Act (42
U.S.C. 241, 242, 242a, 242l, 242n, 243, 262, 263, 263b, 264, 265,
300u-300u-5, 300aa-1, 300aa-25, 300aa-27, 300aa-28); 42 U.S.C.
1395y, 3246b, 4332, 4831(a), 10007-10008; E.O. 11490, 11921, and
12591; secs. 312, 313, 314 of the National Childhood Vaccine Injury
Act of 1986, Pub. L. 99-660 (42 U.S.C. 300aa-1 note).
2. Section 5.20 is amended by revising paragraph (f)(1) to read as
follows:
Sec. 5.20 General redelegations of authority from the Commissioner to
other officers of the Food and Drug Administration.
* * * * *
(f)(1) The Deputy Commissioner for Policy and the Associate
Commissioner for Policy Coordination are authorized to perform any of
the functions of the Commissioner of Food and Drugs with respect to the
issuance of Federal Register notices and proposed and final regulations
of the Food and Drug Administration.
* * * * *
Dated: January 19, 1996.
William B. Schultz,
Deputy Commissioner for Policy.
[FR Doc. 96-1322 Filed 1-25-96; 8:45 am]
BILLING CODE 4160-01-F
Complete official Federal Register PDF
FR Doc. 96-1304 Streamlining Mortgagee Requirements
[Federal Register Volume 61, Number 18 (Friday, January 26, 1996)]
[Rules and Regulations]
[Pages 2650-2651]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-1304]
[[Page 2649]]
_______________________________________________________________________
Part VI
Department of Housing and Urban Development
_______________________________________________________________________
Office of the Assistant Secretary for Housing--Federal Housing
Commissioner
_______________________________________________________________________
24 CFR Parts 202 and 203
Streamlining Mortgagee Requirements; Interim Rule
Federal Register / Vol. 61, No. 18 / Friday, January 26, 1996 / Rules
and Regulations
[[Page 2650]]
DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT
Office of the Assistant Secretary for Housing--Federal Housing
Commissioner
24 CFR Parts 202 and 203
[Docket No. FR-3957-I-01]
RIN 2502-AG57
Streamlining Mortgagee Requirements
AGENCY: Office of the Assistant Secretary for Housing--Federal Housing
Commissioner, HUD.
ACTION: Interim rule.
-----------------------------------------------------------------------
SUMMARY: This rule revises FHA's mortgagee requirements to streamline
and make the FHA process more flexible for mortgagees and FHA's
customers and clients.
DATES: Effective date: February 26, 1996.
Comment due date: March 26, 1996.
ADDRESSES: Interested persons are invited to submit comments regarding
this rule to the Rules Docket Clerk, Office of General Counsel, Room
10276, Department of Housing and Urban Development, 451 Seventh Street,
SW, Washington, DC 20410-0500. Communications should refer to the above
docket number and title. Facsimile (FAX) comments are not acceptable. A
copy of each communication submitted will be available for public
inspection and copying between 7:30 a.m. and 5:30 p.m. weekdays at the
above address.
FOR FURTHER INFORMATION CONTACT: William M. Heyman, Director, Office of
Lender Activities and Land Sales Registration, Room 9156, Department of
Housing and Urban Development, 451 Seventh Street, SW, Washington, DC
20410, telephone (voice) (202) 708-1515, (TDD) (202) 708-4594. (These
are not toll-free numbers.)
SUPPLEMENTARY INFORMATION:
Background
Earlier this year an FHA Single Family Business Practices Working
Group was established to develop recommendations to streamline the FHA
process, reduce or eliminate unnecessary requirements, promote greater
opportunities for first-time homebuyers and minorities, and maintain a
responsible risk management program. The Working Group was comprised of
representatives of mortgage lenders, State and local governments, trade
associations, realtors, government-sponsored enterprises, and other
interested parties.
The revisions made by this rule result from the efforts and
recommendations made by the Working Group. They will make the FHA
process more flexible for mortgagees, and for State and local
governments and nonprofit associations, and also expand homeownership
opportunities. They will also assist in making the FHA a more effective
organization to serve the needs of our customers and clients. The
revisions should also minimize the differences between FHA and
conventional loan processing and place greater reliance and
accountability on mortgagees.
A number of recommended changes did not require rulemaking and,
therefore, were made effective immediately with the issuance of
Mortgagee Letter 95-36, dated August 2, 1995. However, some of the
recommended changes require either rulemaking or modification of
existing data systems. This rule sets forth the changes that require
rulemaking for implementation. Changes effected as a result of
modifications of existing data systems will be announced later.
This Interim Rule
This interim rule makes the following changes:
--Section 202.11(a)(5) is revised to establish uniform requirements on
the use of authorized agents by supervised and nonsupervised
mortgagees. For conforming reasons, Secs. 202.13(e) and 202.17(d) are
removed.
--Section 202.12(m) is revised to eliminate the requirement that a
branch office of a mortgagee must be approved by FHA to originate FHA
mortgages. A branch registry process is permitted. However, a
nonsupervised loan correspondent will be required to provide evidence
that it complies with the net worth requirements for itself and all of
its branches, as set forth in Sec. 202.12(n)(3).
--Section 202.15(c)(1) is revised to eliminate the requirement that
loans must be closed in the name of the Loan Correspondent, and to
permit such mortgages to be closed in either the name of the Loan
Correspondent or its Sponsor(s).
--Section 202.15(c)(5) is revised to eliminate the compliance report
and the report on internal control from Loan Correspondents' annual
audited financial statements.
--Section 203.3(b)(2) is revised to eliminate the requirement that FHA
individually approve mortgagees' Direct Endorsement underwriters and to
establish a registry process for the underwriter. Also, The requirement
that the technical staff utilized by the mortgagee be approved by the
Secretary is removed. For conforming reasons, Secs. 203.3(b)(3) and (c)
are eliminated.
Other Matters
Justification for Interim Rule
In general, the Department publishes a rule for public comment
before issuing a rule for effect, in accordance with its own
regulations on rulemaking, 24 CFR part 10. However, part 10 does
provide for exceptions from that general rule where the Department
finds good cause to omit advance notice and public participation. The
good cause requirement is satisfied when prior public procedure is
``impracticable, unnecessary, or contrary to the public interest.'' (24
CFR 10.1) The Department finds that good cause exists to publish this
rule for effect without first soliciting public comment, in that public
procedure is contrary to the public interest and unnecessary.
No mortgagees or potential mortgagors will be adversely affected by
the revisions made by this rule without prior public comment. To the
contrary, the revisions will streamline and make the FHA processes more
flexible for mortgagees and FHA's customers and clients.
For these reasons, HUD has concluded that the public interest would
not be served by the delay that issuance of a proposed rule would
involve.
Environmental Finding
A Finding of No Significant Impact with respect to the environment
has been made in accordance with HUD regulations at 24 CFR Part 50,
which implement section 102(2)(C) of the National Environmental Policy
Act of 1969. The Finding of No Significant Impact is available for
public inspection between 7:30 a.m. and 5:30 p.m. weekdays in the
Office of the Rules Docket Clerk, Office of the General Counsel,
Department of Housing and Urban Development, Room 10276, 451 Seventh
Street, SW., Washington, DC 20410.
Executive Order 12612, Federalism
The General Counsel, as the Designated Official under section 6(a)
of Executive Order 12612, Federalism, has determined that the policies
contained in this rule will not have substantial direct effects on
States or their political subdivisions, or the relationship between the
Federal government and the States, or on the distribution of power and
responsibilities among the
[[Page 2651]]
various levels of government. As a result, the rule is not subject to
review under the Order. Specifically, the requirements of this rule are
directed to insuring mortgages and do not impinge upon the relationship
between the Federal government and State and local governments.
Executive Order 12606, The Family
The General Counsel, as the Designated Official under Executive
Order 12606, The Family, has determined that this rule does not have
potential for significant impact on family formation, maintenance, and
general well-being, and, thus, is not subject to review under the Order
because it revises mortgagee requirements.
The Regulatory Flexibility Act
In accordance with 5 U.S.C. 605(b) (the Regulatory Flexibility
Act), the Secretary by his approval of this rule hereby certifies that
this rule does not have a significant economic impact on a substantial
number of small entities because the changes made by this rule are
primarily procedural and will not have a significant economic impact.
List of Subjects in Part 202
Administrative practice and procedure, Home improvement,
Manufactured homes, Mortgage insurance, Reporting and recordkeeping
requirements.
List of Subjects in Part 203
Hawaiian Natives, Home improvement, Indians--lands, Loan programs--
housing and community development, Mortgage insurance, Reporting and
recordkeeping requirements, Solar energy.
Accordingly, Subchapter B of Chapter II of title 24 of the Code of
Federal Regulations is amended as follows:
CHAPTER II--OFFICE OF THE ASSISTANT SECRETARY FOR HOUSING--FEDERAL
HOUSING COMMISSIONER, DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT
Subchapter B--Mortgage and Loan Insurance Programs Under National
Housing Act and Other Authorities
PART 202--APPROVAL OF LENDING INSTITUTIONS AND MORTGAGEES
1. The authority for part 202 continues to read as follows:
Authority: 12 U.S.C. 1703, 1709, and 1715b; 42 U.S.C. 3535(d).
2. Part 202 is amended by revising--
a. In Sec. 202.11, paragraph (a)(5) to read as follows:
Sec. 202.11 Approval, recertification, withdrawal of approval and
termination of approval agreement.
(a) * * *
(5) A mortgagee approved under Secs. 202.13, 202.14, or 202.17 may,
with the approval of the Secretary, designate another mortgagee
approved under Secs. 202.13 or 202.14 as authorized agent for the
purpose of submitting applications for mortgage insurance in its name
and on its behalf.
* * * * *
b. In Sec. 202.12, paragraph (m) to read as follows:
Sec. 202.12 General approval requirements.
* * * * *
(m) Branch offices. A mortgagee approved under Secs. 202.13 or
202.14, or a mortgagee that meets the definition of a supervised
mortgagee under Sec. 202.13 and applies for approval as a loan
correspondent under Sec. 202.15, may maintain branch offices for the
submission of applications for mortgage insurance, provided that
registration of such branches is maintained with the Secretary. A
nonsupervised loan correspondent approved under Sec. 202.15 will be
required to provide evidence that it complies with net worth
requirements for itself and all of its branches, as set forth in
Sec. 202.12(n)(3). The mortgagee shall remain fully responsible to the
Secretary for the actions of its branch offices.
* * * * *
Sec. 202.13 [Removed]
c. In Sec. 202.13, paragraph (e) is removed.
d. In Sec. 202.15, the first sentence of paragraph (c)(1) and
paragraph (c)(5) are revised, to read as follows:
Sec. 202.15 Loan correspondents.
* * * * *
(c) * * *
(1) A loan correspondent shall close all mortgages in its own name
or the name of its sponsor(s). * * *
* * * * *
(5) It shall file an audit report with the Secretary within 90 days
of the close of its fiscal year (or within an extended time if, at the
discretion of the Secretary, an extension is granted), and at such
other times as may be requested, unless it meets the definition of a
supervised mortgagee in Sec. 202.13(a). Audit reports shall be based on
audits performed by a Certified Public Accountant, or by an Independent
Public Accountant licensed by a regulatory authority of a State or
other political subdivision of the United States on or before December
31, 1970. The audit report shall include:
(i) A financial statement in a form acceptable to the Secretary,
including a balance sheet and a statement of operations and retained
earnings and analysis of the loan correspondent's net worth adjusted to
reflect only assets acceptable to the Secretary, and an analysis of
escrow funds; and
(ii) Such other financial information as the Secretary may require.
* * * * *
e. In Sec. 202.17, paragraph (d) is removed.
PART 203--SINGLE FAMILY MORTGAGE INSURANCE
3. The authority for part 203 continues to read as follows:
Authority: 12 U.S.C. 1709, 1715b; 42 U.S.C. 3535(d). Subpart C
also, is issued under 12 U.S.C. 1715u.
4. In Sec. 203.3, paragraph (b)(2) is revised, and paragraphs
(b)(3) and (c) are removed and reserved, to read as follows:
Sec. 203.3 Approval of mortgagees for Direct Endorsement.
* * * * *
(b) * * *
(2) The mortgagee has on its permanent staff an underwriter that is
authorized by the mortgagee to bind the mortgagee on matters involving
the origination of mortgages through the Direct Endorsement procedure
and that is registered with the Secretary and such registration is
maintained with the Secretary. The technical staff may be employees of
the mortgagee or may be hired on a fee basis from a roster maintained
by the Secretary. The mortgagee shall use appraisers permitted by
Sec. 203.5(e).
(3) [Reserved].
* * * * *
(c) [Reserved].
* * * * *
Dated: November 29, 1995.
Nicolas P. Retsinas,
Assistant Secretary for Housing--Federal Housing Commissioner.
[FR Doc. 96-1304 Filed 1-25-96; 8:45 am]
BILLING CODE 4210-27-P
Complete official Federal Register PDF
FR Doc. 96-1299 Approval and Promulgation of Air Quality Implementation Plans; Delaware: Regulation 24``Control of Volatile Organic Compound Emissions''
[Federal Register Volume 61, Number 18 (Friday, January 26, 1996)]
[Rules and Regulations]
[Pages 2419-2423]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-1299]
=======================================================================
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[DE26-1-6940a; FRL-5320-1]
Approval and Promulgation of Air Quality Implementation Plans;
Delaware: Regulation 24--``Control of Volatile Organic Compound
Emissions''
AGENCY: Environmental Protection Agency (EPA).
ACTION: Direct final rule.
-----------------------------------------------------------------------
SUMMARY: EPA is approving a State Implementation Plan (SIP) revision
submitted by the State of Delaware on December 19, 1994 pertaining to
Delaware Regulation 24--``Control of Volatile Organic Compound
Emissions'', sections 10, 11, 12, 44, 45, 47, 48, and 49, and
Appendices I, K, L, and M, effective November 29, 1994. These sections
of Regulation 24 establish additional emission standards that represent
the application of reasonably available control technology (RACT) to
categories of stationary sources of volatile organic compounds (VOCs),
and establish associated testing, monitoring, recordkeeping, compliance
certification, and permit requirements. This revision was submitted to
comply with the RACT ``Catch-up'' provisions of the Clean Air Act
Amendments of 1990 (CAAA). This action is being taken under section 110
of the Clean Air Act (CAA).
EFFECTIVE DATE: This action will become effective March 26, 1996 unless
notice is received on or before February 26, 1996 that adverse or
critical comments will be submitted. If the effective date is delayed,
timely notice will be published in the Federal Register.
ADDRESSES: Comments may be mailed to Marcia L. Spink, Associate
Director, Air Programs, Mailcode 3AT00, U.S. Environmental Protection
Agency, Region III, 841 Chestnut Building, Philadelphia, Pennsylvania
19107. 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
Delaware Department of Natural Resources & Environmental Control, 89
Kings Highway, P.O. Box 1401, Dover, Delaware 19903.
FOR FURTHER INFORMATION CONTACT: Rose Quinto, (215) 597-3164, at the
EPA Region III address above.
SUPPLEMENTARY INFORMATION: On December 19, 1994, the Delaware
Department of Natural Resources & Environmental Control (DNREC)
submitted a revision to its SIP. This revision was submitted to comply
with the RACT ``Catch-up'' provisions of the CAA. The revision pertains
to Regulation 24, ``Control of Volatile Organic Compound Emissions'',
by establishing statewide emissions standards for eight (8) additional
VOC source categories, effective November 29, 1994. The 8 additional
VOC source categories are as follows: (1) Section 10--Aerospace
Coatings, (2) Section 11--Motor Vehicle Refinishing, (3) Section 12--
Surface Coating of Plastic Parts, (4) Section 44--Batch Processing
Operations, (5) Section 45--Industrial Cleaning Solvents, (6) Section
47--Offset Lithographic Printing, (7) Section 48--Reactor Processes and
Distillation Operations in the Synthetic Organic Chemical Manufacturing
Industry (SOCMI), and (8) Section 49--Control of Volatile Organic
Compound Emissions from Volatile Organic Liquid Storage Vessels. In
addition, new appendices were added as follows: Appendix I--Method to
Determine Length of Rolling Period for Liquid/Liquid Material Balance,
Appendix K--Emission Estimation Methodologies, Appendix L--Method to
Determine Total Organic Carbon for Offset Lithographic Solutions, and
Appendix M--Test Methods for Determining the Performance of Alternative
Cleaning Fluids. A revision to Regulation 24, section 2--Definitions--
additions, and an Errata sheet to correct typographical errors,
reference notations, etc. were also submitted on December 19, 1994 and
effective November 29, 1994.
I. EPA Evaluation and Action
VOCs contribute to the production of ground level ozone and smog.
These rules were adopted as part of an effort to achieve the National
Ambient Air Quality Standard (NAAQS) for ozone. [The other source
categories was published in the Federal Register on May 3, 1995 (60 FR
21708).]. The following is EPA's evaluation of and action on sections
10, 11, 12, 44, 45, 47, 48, and 49, and appendices I, K, L, and M of
Regulation 24, for the State of Delaware. Detailed descriptions of the
amendments addressed in this document, and EPA's evaluation of the
amendments, are contained in the technical support document (TSD)
prepared for these rulemaking actions
[[Page 2420]]
by EPA. Copies of the TSD are available from the EPA Regional office
listed in the ADDRESSES section of this document.
For the purpose of assisting States and local agencies in
developing RACT rules, EPA prepared a series of control technique
guidance (CTG), and alternative control technology (ACT). The CTGs and
ACTs applicable to the sections mentioned above are: Aerospace Coatings
(CTG & MACT)--59 FR 29216, June 6, 1994; Automobile Refinishing (ACT)--
EPA-453/R-94-031, April 1994; Surface Coating of Automotive/
Transportation and Business Machine Parts (ACT)--EPA-453/R-94-017,
February 1994; Control of VOC Emissions from Batch Processes (ACT)--
EPA-453/R-93-017, February 1994; Industrial Cleaning Solvents (ACT)--
EPA-453/R-94-015, February 1994; Offset Lithographic Printing (ACT)--
EPA-453/R-94-054, June 1994; Control of VOC Emissions from Reactor
Processes and Distillation Operations in SOCMI (CTG)--EPA-450/4-91-031,
August 1993; and Volatile Organic Liquid Storage in Floating and Fixed
Roof Tanks (ACT)--EPA-453/R-94-001, January 1994.
State Submittal: Sections 10, 11, 12, 44, 45, 47, 48, and 49 of
Regulation 24 cover the following VOC source categories, respectively:
Aerospace Coatings, Motor Vehicle Refinishing, Surface Coating of
Plastic Parts, Batch Processing Operations, Industrial Cleaning
Solvents, Offset Lithographic Printing, Reactor Processes and
Distillation Operations in the Synthetic Organic Chemical Manufacturing
Industry, and Control of Volatile Organic Compound Emissions from
Volatile Organic Liquid Storage Vessels. Appendices I, K, L, & M cover
respectively: Method to Determine Length of Rolling Period for Liquid/
Liquid Material Balance, Emission Estimation Methodologies, Method to
Determine Total Organic Carbon for Offset Lithographic Solutions, and
Test Method Determining the Performance of Alternative Cleaning Fluids.
A. Section 10--Aerospace Coatings
Section 10 applies to the following operations in each aerospace
manufacturing or rework facility: (1) general cleaning operations, (2)
all hand-wipe cleaning operations, (3) spray-gun cleaning operations,
(4) all flush cleaning operations, (5) primer and topcoat application
operation, (6) depainting operation, which applies to the depainting of
the outer surface of aerospace vehicles with the exception of parts or
units normally removed during depainting, (7) chemical milling maskant
application operation, and (8) waste storage and handling operation.
Section 10 does not apply to the following operations: Chemical
milling, metal finishing, electrodeposition, composite processing,
adhesives, adhesive bonding primers, sealants, and specialty coatings.
Section 10 does not apply to the aerospace manufacturing and rework
facilities whose plant-wide, actual emissions from the operations
without control devices are less than 15 pounds of volatile organic
compounds (VOCs) per day.
EPA's Evaluation: The regulations listed above are approvable as
SIP revisions because they conform to EPA guidance and comply with the
requirements of the CAA.
B. Section 11--Motor Vehicle Refinishing
Section 11 applies to any source that applies coatings to motor
vehicle refinishing operation.
Section 11 does not apply to sources applying coatings to motor
vehicle parts if the parts are not a component of a vehicle or mobile
equipment being coated at a motor vehicle refinishing operation, and to
any coating operation at a motor vehicle assembly plant.
EPA's Evaluation: The regulations listed above are approvable as
SIP revisions because they conform to EPA guidance and comply with the
requirements of the CAA.
C. Section 12--Surface Coating of Plastic Parts
Section 12 applies to any facility that coats plastic components
for the following uses:
(1) Automotive or other transportation equipment including interior
and/or exterior parts for automobiles, trucks (light-, medium-, or
heavy-duty), large and small farm machinery, motorcycles, construction
equipment, vans, buses, lawnmowers, and other mobile, motorized
mobilized equipment.
(2) Housing and exterior parts for business and commercial machines
including, but not limited to, computers, copy machines, typewriters,
medical equipment, and entertainment equipment.
Section 12 does not apply to the following operations:
(1) Coating of interior and exterior parts of aircraft.
(2) Coating of exterior of completely assembled marine vessels.
(3) Refinishing of aftermarket automobiles, trucks, and other
transportation equipment.
(4) Coating of internal electrical components of business and
commercial machines.
(5) Coating of a metal component in a spray booth or on a process
line.
Section 12 does not apply to plastic parts coating facilities whose
plant wide actual emissions, without control devices, from all plastic
parts coating operations, are less than 15 pounds of VOCs per day.
EPA's Evaluation: The regulations listed above are approvable as
SIP revisions because they conform to EPA guidance and comply with the
requirements of the CAA.
D. Section 44--Batch Processing Operations
Section 44 applies to process vents associated with batch
processing operations in the following affected manufacturing
facilities with the corresponding Standard Industrial Classification
(SIC) Codes:
(1) Plastic Materials & Resins (SIC 2821).
(2) Medical Chemicals & Botanical Products (SIC 2833).
(3) Gum & Wood Chemicals (SIC 2861).
(4) Cyclic Crudes & Intermediates (SIC 2869).
(5) Industrial Organic Chemicals (SIC 2869).
(6) Agricultural Chemicals (SIC 2879).
Section 44 does not apply to the following operations:
(1) Combined process vents from each batch process train with an
annual mass emission total of 10,000 lbs of VOCs or less; or
(2) Single unit operations which have annual mass emission of 227
kg (500 lb) VOCs or less.
EPA's Evaluation: The regulation listed above is approvable as a
SIP revision because it conforms to EPA guidance and complies with the
requirements of the CAA.
E. Section 45--Industrial Cleaning Solvents
Section 45 applies to all sources that use organic solvents for the
purpose of cleaning. Section 45 does not apply to: any non-
manufacturing area cleaning operation, any non-routine maintenance of
manufacturing facilities and equipment, and any source that uses less
than 4,540 kilograms (5 tons) of cleaning solvent per year.
EPA's Evaluation: The regulations listed above are approvable as
SIP revisions because they conform to EPA guidance and comply with the
requirements of the CAA.
F. Section 47--Offset Lithographic Printing
Section 47 applies to any offset lithographic printing facility,
including
[[Page 2421]]
heatset web, non-heatset web (non-newspaper), non-heatset sheet-fed,
and newspaper (non-heatset web) facilities.
Section 47 does not apply to any offset lithographic printing
facility whose total actual VOC emissions from all lithographic
printing operations (including emissions from cleaning solutions used
on lithographic printing presses) are less than 15 lbs VOCs per day
before the application of capture systems and control devices.
Section 47 does not apply to other types of printing operations,
such as flexography, rotogravure, or letterpress.
EPA's Evaluation: The regulations listed above are approvable as
SIP revisions because they conform to EPA guidance and comply with the
requirements of the CAA.
G. Section 48--Reactor Processes and Distillation Operations in the
Synthetic Organic Chemical Manufacturing Industry
Section 48 applies to any vent stream that originates from a
process unit in which a reactor or distillation operation is located at
a facility within the synthetic organic chemical manufacturing industry
(SOCMI).
Section 48 does not apply to the following operations:
(1) Any reactor process or distillation operation that is designed
and operated in a batch mode.
(2) Any reactor process or distillation operation that is part of a
polymer manufacturing operation.
(3) Any reactor process or distillation operation that operates in
a process unit with a total design capacity of less than 1,100 tons per
year for all chemicals produced within that unit except for the
reporting/recording requirements.
(4) Any vent stream for a reactor process or distillation operation
with a flow rate less than 0.0085 standard cubic meters per minute
(scmm) or a total VOC concentration of less than 500 parts per million
by volume (ppmv) except for the performance testing requirement and the
reporting/recording requirements.
EPA's Evaluation: The regulation listed above is approvable as a
SIP revision because it conforms to EPA guidance and complies with the
requirements of the CAA.
H. Section 49--Control of Volatile Organic Compound Emissions From
Volatile Organic Liquid Storage Vessels
Section 49 applies to each storage vessel with a capacity equal to
or greater than 40,000 gallons that is used to store volatile organic
liquids (VOLs).
Section 49 does not apply to:
(1) Storage vessels with a capacity less than 5,000 gal.
(2) Storage vessels with a capacity equal to or greater than 5,000
gal and less than 40,000 gal provided that records are maintained.
(3) Storage vessels with a capacity equal to or greater than 40,000
gal storing a liquid with a maximum true vapor pressure less than 1.0
psia provided that records are maintained.
(4) Storage vessels with a capacity equal to or greater than 40,000
gal storing a liquid with a maximum true vapor pressure equal to or
greater than 1.0 psia but less then 1.5 psia provided that records are
maintained.
(5) Storage vessels at coke oven by-product plants.
(6) Pressure vessels which operate without emissions to the
atmosphere.
(7) Storage vessels permanently attached to mobile vehicles such as
trucks, railcars, barges, or ships.
(8) Storage vessels used to store beverage alcohol.
EPA's Evaluation: The regulation listed above is approvable as a
SIP revision because it conforms to EPA guidance and complies with the
requirements of the CAA.
I. Appendix I--Method To Determine Length of Rolling Period for Liquid/
Liquid Material Balance
Appendix I determines the length of the rolling material balance
period used in the liquid-liquid material balance test method to
measure the overall performance of volatile organic compound (VOC)
emission control; systems employing carbon adsorbers for solvent
recovery as the control device.
Physical properties and usage are determined for the solvents used
in the process, and configuration and operating parameters are
identified for the emission source and its emission control system.
This information is used to calculate the concentration of VOC in the
outlet air of the capture unit, amount of VOC adsorbed on the carbon,
maximum VOC loading on the carbon, unmeasured solvent holding capacity
of the solvent recovery system, and unmeasured solvent holding capacity
of the process unit. These values are then used to calculate the
rolling material balance period.
EPA's Evaluation: The methods listed above are approvable as SIP
revisions because they conform to EPA guidance and comply with the
requirements of the CAA.
J. Appendix K--Emission Estimation Methodologies
The methodologies presented in Appendix K are based on the Ideal
Gas Law and on fundamental vapor/liquid equilibrium relationships such
as Henry's and Raoult's Law. The equations are for estimating and
characterizing uncontrolled emission streams from batch processes.
EPA's Evaluation: The methods listed above are approvable as SIP
revisions because they conform to EPA guidance and comply with the
requirements of the CAA.
K. Appendix L--Method To Determine Total Organic Carbon for Offset
Lithographic Solutions
Appendix L is a method applicable for the determination of organic
carbon in diluted offset lithographic solutions. Organic carbon in a
sample is converted to carbon dioxide (CO2) by catalytic
combustion or wet chemical oxidation. The CO2 formed can be
measured directly by an infrared detector or converted to methane
(CH4) and measured by a flame ionization detector. The amount of
CO2 or CH4 is directly proportional to the concentration of
carbonaceous material in the sample.
EPA's Evaluation: The methods listed above are approvable as SIP
revisions because they conform to EPA guidance and comply with the
requirements of the CAA.
L. Appendix M--Test Method for Determining the Performance of
Alternative Cleaning Fluids
Appendix M presents a test method for evaluating the performance of
alternative cleaning fluids. Any fluids may be tested, but the primary
intent is that it will be used to evaluate the performance of
alternatives relative to a VOC solvent. It is a screening technique
designed to determine whether the alternatives cleans at least as well
as currently used VOC solvent in a simple, standardized wiping
application.
EPA's Evaluation: The methods listed above are approvable as SIP
revisions because they conform to EPA guidance and comply with the
requirements of the CAA.
As required by 40 CFR 51.102, the State of Delaware has certified
that public hearings with regard to these revisions were held in
Delaware on September 22, 1994.
EPA is approving this SIP revision without prior proposal because
the Agency views this as a noncontroversial amendment and anticipates
no adverse comments. However, in a separate document in this Federal
Register publication, EPA is proposing to approve the SIP revision
should adverse or critical comments be filed. This action will become
effective March 26, 1996 unless, within 30 days of publication, adverse
or critical comments are received.
[[Page 2422]]
If EPA receives such comments, this action will be withdrawn before
the effective date by publishing a subsequent notice that will withdraw
the final action. All public comments received will then be addressed
in a subsequent final rule based on this action serving as a proposed
rule. 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 on March 26, 1996.
Final Action
EPA is approving sections 10, 11, 12, 44, 45, 47, 48, and 49, and
Appendices I, K, L, and M of Delaware Regulation 24 as a revision to
the Delaware SIP. The State of Delaware submitted these amendments to
EPA as a SIP revision on December 19, 1994.
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 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 CAA
do not create any new requirements but simply approve requirements that
the State is already imposing. Therefore, because the Federal SIP
approval does not impose any new requirements, the 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 CAA forbids EPA to base its actions concerning SIP's on
such grounds. Union Electric Co. v. U.S. EPA, 427 U.S. 246, 255-66
(1976); 42 U.S.C. 7410(a)(2).
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 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 proposed/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 action
approves pre-existing requirements under State or local law, and
imposes no new Federal requirements. Accordingly, no additional costs
to State, local, or tribal governments, or to the private sector,
result from this action.
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 CAA, petitions for judicial review
of this action approving the 8 additional VOC source categories for
Delaware must be filed in the United States Court of Appeals for the
appropriate circuit by March 26, 1996. Filing a petition for
reconsideration by the Administrator of this final rule does not affect
the finality of this rule for the purposes of judicial review nor does
it extend the time within which a petition for judicial review may be
filed, and shall not postpone the effectiveness of such rule or action.
This action may not be challenged later in proceedings to enforce its
requirements. (See section 307(b)(2).)
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Hydrocarbons,
Incorporation by reference, Ozone, Reporting and recordkeeping
requirements.
Dated: October 18, 1995.
W. Michael McCabe,
Regional Administrator, Region III.
40 CFR part 52, subpart I of chapter I, title 40 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 I--Delaware
2. Section 52.420 is amended by adding paragraphs (c)(54) to read
as follows:
Sec. 52.420 Identification of plan.
* * * * *
(c) * * *
(54) Revisions to the Delaware State Implementation Plan submitted
on December 19, 1994 by the Delaware Department of Natural Resources &
Environmental Control:
(i) Incorporation by reference.
(A) Letter of December 19, 1994 from the Delaware Department of
Natural Resources & Environmental Control transmitting Regulation 24--
``Control of Volatile Organic Compound Emissions'', effective November
29, 1994.
(B) Regulation 24--``Control of Volatile Organic Compound
Emissions'', Sections 10, 11, 12, 44, 45, 47, 48, and 49 and appendices
I, K, L, and M, effective November 29, 1994.
(C) Administrative changes to Regulation 24, Section 2--
Definitions: Addition of sections 2(c) Basecoat; 2(j) Clearcoat; 2(x)
Gloss flattener; 2(bb) Internal Floating Roof; 2(gg) Liquid-mounted
seal; 2(ss) Petroleum; 2(tt) Petroleum Liquid; 2(xx) Primer; 2(jjj)
Storage Vessel; 2(mmm) Transfer efficiency; 2(ppp) Vapor-mounted seal;
and 2(ttt) Volatile Organic Liquid (VOL); and section 2(zz) by changing
ASTM D323-89 to ASTM D323-82, effective November 29, 1994.
(D) An Errata sheet of Regulation 24 with administrative changes to
Section 4--4(b) by renumbering section 13 to 10 and section 22 to 23,
4(b)(1)(iii) by renumbering section 13 to 10 and section 22 to 23, 4(c)
by renumbering section 22 to 23, 4(d) by renumbering section 22 to 23,
4(e) by renumbering section 13 to 10 and section 22 to 23, 4(e)(2)(iv)
by adding the following lines: section 10(e)(1)(iii), section 11(d),
section 12(e)(1)(iii), and section 23(e)(1)(iii), 4(e)(x) correcting 50
degrees F to 82 degrees F; Section 8--8(a)(2) by renumbering section 13
to 10; Section 21--21(a)(5) correcting the number 4 to
[[Page 2423]]
5; Section 25--25(c)(4)(vi) by changing calibrated to calculated;
Section 29--29(i)(3)(i)(A) by correcting 0.09 to 0.044 in Hg,
29(i)(3)(i)(B) by correcting 0.09 to 0.044 in Hg; Section 30--30(b) by
deleting definitions of liquid mounted seal and vapor mounted seal that
were added in Section 2--Definitions; Section 31--31(b) by deleting
definition of internal floating roof that was added to Section 2--
Definitions, 31(e)(ii) by correcting letter i to ii; Section 33--
33(f)(3) by correcting (c)(3)(i)(B) to (c)(3)(ii)(B), Section 35--
35(c)(2)(i) by adding weight, 35(c)(3)(i) by adding by weight; Section
37--37(a)(1) by deleting of press ready ink; Section 43--43(a)(1) by
renumbering section 13 to 10 and section 42 to 49; Appendix A--(a) by
renumbering section 13(c)(1) or section 14 through 43 to section 19
through 50; Appendix D--(a)(2)(iii)(4) by deleting to be published,
effective November 29, 1994.
(ii) Additional Material.
(A) Remainder of December 19, 1994 State submittal pertaining to
Regulation 24 referenced in paragraphs (c)(54)(i).
[FR Doc. 96-1299 Filed 1-25-96; 8:45 am]
BILLING CODE 6560-50-P
Complete official Federal Register PDF
FR Doc. 96-1297 Approval and Promulgation of Implementation Plans; Illinois
[Federal Register Volume 61, Number 18 (Friday, January 26, 1996)]
[Rules and Regulations]
[Pages 2423-2428]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-1297]
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[IL18-6-6516a; FRL-5334-2]
Approval and Promulgation of Implementation Plans; Illinois
AGENCY: United States Environmental Protection Agency (USEPA).
ACTION: Direct final rule.
-----------------------------------------------------------------------
SUMMARY: On October 21, 1993, and March 4, 1994, the Illinois
Environmental Protection Agency (IEPA) submitted to the USEPA volatile
organic compound (VOC) rules that were intended to satisfy part of the
requirements of section 182(b)(2) of the Clean Air Act (Act) amendments
of 1990. Specifically, these rules provide control requirements for
certain major sources not covered by a Control Technique Guideline
(CTG) document. These non-CTG VOC rules apply to sources in the Chicago
ozone nonattainment area which have the potential to emit 25 tons of
VOC per year. These rules provide an environmental benefit due to the
imposition of these additional control requirements. IEPA estimates
that these rules will result in VOC emission reductions, from 119
industrial plants, of 2.78 tons per day. The rationale for the approval
is set forth in this final rule; additional information is available at
the address indicated below. Elsewhere in this Federal Register USEPA
is proposing approval and soliciting public comment on this requested
revision to the Illinois State implementation plan (SIP). If adverse
comments are received on this direct final rule, USEPA will withdraw
the final rule and address the comments received in a new final rule.
Unless this final rule is withdrawn, no further rulemaking will occur
on this requested SIP revision.
DATES: This final rule is effective March 26, 1996 unless adverse
comments are received by February 26, 1996. If the effective date is
delayed, timely notice will be published in the Federal Register.
ADDRESSES: Written comments can be mailed to: J. Elmer Bortzer, Chief,
Regulation Development Section, Regulation Development Branch (AR-18J),
Air and Radiation Division, U.S. Environmental Protection Agency, 77
West Jackson Boulevard, Chicago, Illinois 60604.
Copies of the SIP revision request are available for inspection at
the following address: (It is recommended that you telephone Steven
Rosenthal at (312) 886-6052, before visiting the Region 5 office.) U.S.
Environmental Protection Agency, Region 5, Air and Radiation Division,
77 West Jackson Boulevard, Chicago, Illinois 60604.
FOR FURTHER INFORMATION CONTACT: Steven Rosenthal, Regulation
Development Branch (AR-18J), (312) 886-6052.
SUPPLEMENTARY INFORMATION:
Background
On June 29, 1990, USEPA promulgated a Federal implementation plan
(FIP) for the six counties in the Chicago metropolitan area: Cook, Du
Page, Kane, Lake, McHenry, and Will. 55 FR 26818, codified at 40 CFR
52.741. This FIP required that certain VOC sources comply with
reasonably available control technology (RACT) requirements.
Under the Act as amended in 1977, ozone nonattainment areas were
required to adopt reasonably available control technology (RACT) for
sources of VOC emissions. USEPA issued three sets of control technique
guidelines (CTGs) documents, establishing a ``presumptive norm'' for
RACT for various categories of VOC sources. The three sets of CTGs were
(1) Group I--issued before January 1978 (15 CTGs); (2) Group II--issued
in 1978 (9 CTGs); and (3) Group III--issued in the early 1980's (5
CTGs). Those sources not covered by a CTG were called non-CTG sources.
USEPA determined that the area's SIP-approved attainment date
established which RACT rules the area needed to adopt and implement.
Those areas (including the Chicago area) that sought an extension of
the attainment date under section 172(a)(2) to as late as December 31,
1987, were required to adopt RACT for all CTG sources and for all major
(100 tons per year or more of VOC emissions under the pre-amended Act)
non-CTG sources.
Section 182(b)(2) of the Act as amended in 1990 (amended Act)
requires States to adopt reasonably available control technology (RACT)
rules for all areas designated nonattainment for ozone and classified
as moderate or above. There are three parts to the section 182(b)(2)
RACT requirement: (1) RACT for sources covered by an existing CTG--
i.e., a CTG issued prior to the enactment of the amended Act of 1990;
(2) RACT for sources covered by a post-enactment CTG; and (3) all major
sources not covered by a CTG. These section 182(b)(2) RACT requirements
are referred to as the RACT ``catch-up'' requirements.
The amended Act requires USEPA to issue CTGs for 13 source
categories by November 15, 1993. A CTG was published by this date for
two source categories--Synthetic Organic Chemical Manufacturing
Industry (SOCMI) Reactors and Distillation; however, the CTGs for the
remaining source categories have not been completed. The amended Act
requires States to submit rules for sources covered by a post-enactment
CTG in accordance with a schedule specified in a CTG document.
Accordingly, States must submit a RACT rule for SOCMI reactor processes
and distillation operations before March 23, 1994.
The USEPA created a CTG document as Appendix E to the General
Preamble for the Implementation of Title I of the Clean Air Act
Amendments of 1990. (57 FR 18070, 18077, April 28, 1992). In Appendix
E, USEPA interpreted the Act to allow a State to submit a non-CTG rule
by November 15, 1992, or to defer submittal of a RACT rule for sources
that the State anticipated would be covered by a post-enactment CTG,
based on the list of CTGs USEPA expected to issue to meet the
requirement in section 183. Appendix E states that if USEPA fails to
issue a CTG by November 15, 1993 (which it did for 11 source
categories), the responsibility shifts to the State to submit a non-CTG
RACT rule for those sources by November 15, 1994. In accordance with
section 182(b)(2), implementation of that RACT rule should occur by May
31, 1995.
[[Page 2424]]
On October 21, 1993, and March 4, 1994, IEPA submitted VOC rules
for the Chicago ozone severe nonattainment area.1 The rules
submitted on March 4, 1994, include both new rules and revisions to the
rules that were submitted on October 21, 1993. Those sections contained
in the March 4, 1994, submittal supersede the same sections in the
October 21, 1993, submittal. These rules were intended to satisfy, in
part, the major non-CTG control requirements of section 182(b)(2).
These ``catch-up'' rules lower the applicability cutoff for major non-
CTG sources from 100 tons VOC per year to 25 tons VOC per year. This
cutoff was lowered because section 182(d) of the amended Act defines a
major source in a severe ozone nonattainment area as a source that
emits 25 tons or more of VOC per year. However, this March 4, 1994,
submittal does not include major non-CTG regulations for the 11 source
categories for which USEPA expected to issue CTGs to satisfy section
183, but did not. As stated previously, Illinois is required to adopt
and submit RACT regulations by November 1994 for these 11 source
categories.
\1\ The Chicago severe ozone nonattainment area consists of
Cook, Du Page, Kane, Lake, McHenry, and Will Counties and Aux Sable
Township and Goose Lake Township in Grundy County and Oswego
Township in Kendall County.
---------------------------------------------------------------------------
Evaluation of Rules
Subpart B: Definitions
Illinois has added 18 definitions to Subpart B. All but one of
these definitions apply to new rules for ``Polyester Resin Product
Manufacturing Process,'' ``Aerosol Can Filling,'' and ``Leather
Coating.'' These definitions accurately describe the specified terms
and are necessary for implementation of these three rules. These
definitions are therefore approvable.
Illinois has also added a definition of ``potential to emit''
(PTE). This term is used to establish the applicability cutoff for the
major non-CTG ``catch-up'' rules described in the following part of
this notice. PTE is defined as ``the maximum capacity of a stationary
source to emit any air pollutant under its physical and operational
design. Any physical or operational limitation on the capacity of a
source to emit an air pollutant, including air pollution control
equipment and restriction on hours of operation or on the type or
amount of material combusted, stored, or processed, shall be treated as
part of its design if the limitation is federally enforceable.'' This
definition is acceptable for establishing applicability and for
establishing federally enforceable restrictions for the purpose of
allowing a source to avoid applicability. This definition is therefore
approvable.
Subpart A: General Provisions
Section 218.106 Compliance Dates--A new subsection 218.106(c) is
added which provides a compliance date of March 15, 1995, for newly
subject 25 ton per year VOC sources. This subsection is approvable
because this date is prior to May 31, 1995, the implementation date
that is specified in section 182(b)(2) for major non-CTG sources.
Section 218.108 Exemptions, Variations, and Alternative Means of
Control or Compliance Determinations--Subsection 218.108(b) allows
equivalent alternative control plans and test methods to be established
in a federally enforceable permit. This provision allows Illinois to
revise its control requirements and test methods through a federally
enforceable state operating permit (FESOP) or Title V (of the Act)
operating permit. The application of this section is discussed in
subsequent parts of these rules.
Section 218.113 Compliance with Permit Conditions--This section
requires sources to comply with their permit requirements and is
therefore approvable.
Section 218.402 Applicability--This section contains a 25 tons per
year PTE cutoff (in addition to a 100 ton maximum theoretical emissions
2 (MTE) cutoff) for flexographic and rotogravure printing sources
as required by the new major source definition applicable in severe
ozone nonattainment areas. In addition, this section allows sources to
avoid the applicability of specified printing rules, provided a source
has a federally enforceable permit that limits emissions to below the
applicable cutoff through capacity or production limitations. This use
of federally enforceable permits is approvable because USEPA can deem a
permit to be ``not federally enforceable'' in a letter to IEPA. Upon
issuance of such a letter, the source is no longer protected by this
permit. The source would then be subject to the SIP requirements if its
emissions exceed the applicable cutoffs. This is consistent with
USEPA's December 17, 1992, approval of Illinois' operating permit
program which states: ``In approving the State operating program USEPA
is determining that Illinois' program allows USEPA to deem an operating
permit not `federally enforceable' for purposes of limiting potential
to emit and offset credibility.'' (57 FR 59928, 59930). IEPA has agreed
to this approach and specified the applicable procedures in a March 26,
1993, letter to USEPA. This section is therefore approvable because it
adds a cutoff consistent with the requirements of the amended Act and
because USEPA can invalidate the protection provided by an operating
permit by deeming such operating permit to be ``not federally
enforceable `` in a letter to IEPA.
\2\ ``Maximum theoretical emissions'' means the quantity of
volatile organic material that theoretically could be emitted by a
stationary source before add-on controls based on the design
capacity or maximum production capacity of the source and 8760 hours
per year. The design capacity or maximum production capacity
includes use of coating(s) or ink(s) with the highest volatile
organic material content actually used in practice by the source,
provided, however, the Agency shall, when appropriate, and upon
request by the permit applicant, limit the ``maximum theoretical
emissions'' of a source by the imposition of conditions in a
federally enforceable operating permit for such source. Such
conditions shall not be inconsistent with requirements of the Clean
Air Act, as amended, or any applicable requirements established by
the Board. Such conditions shall be established in place of design
capacity or maximum production capacity in calculating the ``maximum
theoretical emissions'' for such source and may include, among other
things, the establishment of production limitations, capacity
limitations, or limitations on the volatile organic material content
of coatings or inks, or the hours of operation of any emission unit,
or a combination of any such limitations. Production or capacity
limitations shall be established on a basis of no longer than one
month except in those cases where a limit spanning a longer period
of time is appropriate. In such cases, a limit or limitation must
not exceeed an annual limit rolled on a basis of at most a month:
that is, for example, a monthly production or a capacity level must
be determined for each parameter subject to a production or capacity
limitation and added to the eleven prior monthly levels for monthly
comparison with the annual limit. Any production or capacity
limitations shall be verified through appropriate recordkeeping.
---------------------------------------------------------------------------
Section 218.611 Applicability for Petroleum Solvent Dry Cleaners--
The above discussion in section 218.402, for flexographic and
rotogravure printing sources, applies to this section for petroleum
solvent dry cleaners.
Section 218.620 Applicability--This section contains a 25 tons per
year PTE cutoff (in addition to a 100 ton MTE cutoff) for paint and ink
manufacturing sources as required by the new major source definition
applicable in severe ozone nonattainment areas and is therefore
approvable.
Subpart CC: Polyester Resin Product Manufacturing Process--This new
rule applies to a source's polyester resin products manufacturing
process emission units and the associated handling of materials,
cleanup activity, and formulation activity at sources with MTE of less
than 100 tons. The control requirements consist of any of the
following: (1) The use of polyester resin material with specified
monomer contents; (2) the use of a closed-mold or
[[Page 2425]]
pultrusion system which will result in less than 4% weight loss of
polyester resin materials; (3) the use of vapor suppressed polyester
resin approved by IEPA in the source's permit such that weight loss
from VOC emissions does not exceed 60 grams per square meter of exposed
surface area during molding; or (4) the use of any materials or
processes demonstrated to the satisfaction of IEPA to achieve VOC
emission levels equivalent to any of the above control techniques. This
alternative must be approved by IEPA and USEPA in a federally
enforceable permit or as a SIP revision. An analysis of alternative
equivalent control plans is contained below within the discussion of
Subparts PP, QQ, RR, and TT. This rule also includes work practices
(such as use of closed containers) and regulates the use of cleaning
materials. Section 218.668(a)(3)(C), 218.668(a)(4)(D) and
218.668(a)(5)(C), allow for the determination of specified control
requirements ``By site-specific sampling and analysis methods approved
by the Agency and USEPA in a federally enforceable permit.'' The
procedures for USEPA's review and approval of these alternative test
methods are specified in a September 13, 1995, letter from the Illinois
Environmental Protection Agency to Region 5 of the USEPA. The emission
limits contained in this rule are very similar to the emission limits
contained in Rule 1162 for Polyester Resin Operations that was revised,
in May 1994, by the South Coast Air Quality Management District--which
covers the Los Angeles area. Rule 1162 was approved by USEPA on August
25, 1994 (59 FR 43571). Illinois' Polyester Resin Product Manufacturing
Process rule is therefore approvable.
Subpart DD: Aerosol Can Filling--This new rule applies to a
source's aerosol can filling lines if the source's MTE is less than 100
tons and it has a PTE equal or greater than 25 tons VOC per year.
Aerosol can filling lines can comply by one of the following options:
(1) Use of add-on control which achieves an overall reduction of 81%;
or (2) (A) Use of through-the-valve (TTV) fill or enhanced under-the-
cup (UTC) fill to minimize loss of VOC propellent; or use of another
system approved in a federally enforceable permit which achieves at
least 75% reduction of the emissions of UTC fill; (B) Fill on a monthly
basis at least 90% of cans filled on such aerosol can filling lines
that are capable of being filled by the TTV method with TTV fill. TTV
filling causes only 15% to 25% of the emissions from UTC (the standard
method of filling cans) and is considered to be RACT. Based on
discussions with IEPA, the two aerosol can filling sources that have
been identified as emitting over 25 tons VOC per year either are or
will be controlled as follows: CCL Custom Manufacturing will be
installing an incinerator and will therefore comply with the 81%
overall control requirement and Chase Products Company is filling 90%
of its cans with TTV. Therefore this rule satisfies the requirement for
RACT on aerosol filling operations.
Section 218.926(b)(2) consists of a new set of control requirements
which apply to a source's leather coating operations if the source's
MTE is less than 100 tons and it has a PTE of 25 tons VOC per year or
greater. These control requirements are: (A) For the application of
stain coating to leather, other than specialty leather, the VOC
contained in the subject coatings shall not exceed 10 tons in any
consecutive 12-month period or the application of such coatings shall
comply with (C) below; (B) For the application of coatings to specialty
leather, the total VOC content of all coatings, including stains, as
applied to a category of specialty leather, shall not exceed 38 lbs per
1000 square feet of such specialty leather produced, determined on a
monthly basis;or (C) The daily-weighted average VOC content shall not
exceed 3.5 lbs VOC/gallon of coating as applied. A daily-weighted
average of 3.5 lbs VOC per gallon has previously been established as
RACT by USEPA for major non-CTG coating sources and a 38 lbs VOC per
1000 square feet limit is contained in Wisconsin's leather coating
rules which has been approved as RACT by USEPA. IEPA justified its 10
ton exemption for stains by explaining that use of high VOC content
stain is needed for some natural leathers. Even when a stain with dye
can be thinned with water the VOC content can still be very high
because of the VOC required to actually dissolve the small amount of
dye present. Stain is applied at varying rates on different pieces of
leather and at varying rates on a single piece of leather, as it is
used to achieve uniform shade on animal hides with naturally varying
coloration. IEPA added that at the same time and in light of the above,
total VOC emissions from a source attributable to stain are small.
Illinois' leathercoating rule is therefore consistent with RACT. The
compliance certification and recordkeeping requirements for
leathercoating operations are contained in Sections 218.991(d)(1) and
218.991(d)(2), respectively. The recordkeeping requirements in Section
218.991(d)(2) establish monthly records of (1) the pounds VOC per
gallon of coating (VOC content) and volume of each stain coating used
for other than specialty leather, (2) the VOC content and volume of
each coating used for specialty shoe leather, (3) the VOC content and
volume of each coating used for specialty football leather, (4) the
square feet of specialty shoe leather produced, and (5) and the square
feet of specialty football leather produced. These recordkeeping
requirements are therefore sufficient to establish compliance with the
leathercoating emission limits.
Subparts PP, QQ, RR, and TT consist of ``generic'' major non-CTG
rules for sources not specifically covered by another rule. Sections
926, 946, 966, and 986 specify the control requirements for the rules.
Subsection (a) of each of these Sections requires an overall 81 percent
reduction from each emission unit. A Board Note has been added to each
subsection to clarify what is intended by the term ``emission unit.'' A
further clarification of the Board Note has been provided in a June 16,
1993, letter from Dennis Lawler, IEPA.
Subpart UU contains the recordkeeping and reporting requirements
for the non-CTG requirements in Subparts PP, QQ, RR, and TT and Section
218.990 contains the recordkeeping and reporting requirements for
exempt sources. Although these sections refer to emission units which
are exempt, it should be noted that the owner or operator of such an
exempt emission unit would need to submit records for the entire source
to demonstrate that maximum theoretical emissions from all non-CTG and
unregulated CTG operations are below the applicable cutoff. In those
cases where one or more (but not all) emission units are exempt (as in
218.920(d), 218.940(d), 218.960(d), and 218.980(d)), records must also
be submitted documenting that each such emission unit is exempt.
Illinois' major non-CTG VOC rules in Subparts PP, QQ, RR, and TT
allow compliance via (1) Emission capture and control techniques which
achieve an overall reduction in uncontrolled VOC emissions of at least
81 percent from each emission unit, or (2) For coating lines, the
daily-weighted average VOC content shall not exceed 3.5 pounds (lbs)
VOC per gallon (gal) of coating, or (3) an equivalent alternative
control plan which has been approved by the Agency and the USEPA in a
federally enforceable permit or as a SIP revision.
On December 17, 1992, (57 FR 59928) USEPA approved Illinois'
existing Operating Permit program as satisfying
[[Page 2426]]
USEPA's June 28, 1989, (54 FR 27274) five criteria regarding Federal
enforceability. One of the criteria is that permits may not be issued
that make less stringent any SIP limitation or requirement. USEPA's
December 17, 1992, notice states that operating permits issued by
Illinois in conformance with the five criteria (including the
prohibition against States issuing operating permit limits less
stringent than the regulations in the SIP) discussed in this notice
will be considered federally enforceable. This notice also states
Illinois' operating permit program allows USEPA to deem an operating
permit not ``federally enforceable.''
On July 21, 1992, USEPA promulgated a new part 70 of chapter 1 of
title 40 of the Code of Federal Regulations. See 57 FR 32250. This new
part 70 contains regulations, required by Title V of the Act, that
require and specify the minimum elements of State operating permit
programs. Part 70 is therefore an appropriate basis for evaluating the
acceptability of Illinois' use of federally enforceable State operating
permits (FESOP) and Title V permits in its VOC rules.
Section 70.6(a)(1)(iii) states:
If an applicable implementation plan allows a determination of an
alternative emission limit at a part 70 source, equivalent to that
contained in the plan, to be made in the permit issuance, renewal, or
significant modification process, and the State elects to use such
process, any permit containing such equivalency determination shall
contain provisions to ensure that any resulting emissions limit has
been demonstrated to be quantifiable, accountable, enforceable, and
based on replicable procedures.
USEPA has therefore determined that the alternative control
requirement, submitted on March 4, 1994, in subsections 218.926(c),
218.946(b), 218.966(b) and 218.986(c), is approvable because it
requires that any alternative must be equivalent to the underlying SIP
requirements (consistent with part 70) and USEPA can deem a permit
containing an alternative control plan to be not ``federally
enforceable'' if it determines that a permit is not quantifiable or
practically enforceable or a permit relaxes the SIP. The underlying
SIP, to which any equivalent alternative control plan must be compared,
has federally enforceable control requirements, test methods, and
recordkeeping and reporting requirements. In addition, IEPA's September
13, 1995, letter contains the specific procedures for USEPA review and
approval.
Subsections 218.620(a)(1)(B), 218.920(a)(1)(B), 218.940(a)(1)(B),
218.960(a)(1)(B), 218.980(a)(1)(B), along with the following
subsections in conjunction with Section 211.4970 (the definition of
``Potential to emit''): Subsections 218.620(b)(1), 218.920(b)(1),
218.940(b)(1), 219.960(b)(1) and 218.980(b)(1), allow sources to avoid
the applicability of specified major non-CTG rules, provided a source
has a federally enforceable permit that limits emissions to below the
applicable cutoff through capacity or production limitations. These
subsections are approvable because USEPA can deem a permit to be ``not
federally enforceable'' in a letter to IEPA. Upon issuance of such a
letter, the source is no longer protected by the permit referenced in
the subject subsections. The source would then be subject to the SIP
requirements if its emissions exceed the applicable cutoff. This is
consistent with USEPA's December 17, 1992, approval of Illinois'
operating permit program which states: ``In approving the State
operating program USEPA is determining that Illinois' program allows
USEPA to deem an operating permit not `federally enforceable' for
purposes of limiting potential to emit and to offset creditability.''
(57 FR 59928, 59930). IEPA has agreed to this approach and specified
the applicable procedures in a March 26, 1993, letter to USEPA. In
summary, these subsections are approvable because USEPA can invalidate
the protection provided by an operating permit by deeming such
operating permit to be ``not federally enforceable'' in a letter to
IEPA.
USEPA's ``generic major (based on potential emissions of 25 tons of
VOC) non-CTG rules'' in subparts PP, QQ, RR and TT, do not apply to
synthetic organic chemical industry (SOCMI) distillation, SOCMI
reactors, wood furniture, plastic parts coating (business machines),
plastic parts coating (other), offset lithography, industrial
wastewater, autobody refinishing, SOCMI batch processing, volatile
organic liquid storage tanks and clean-up solvent operations. In
addition, bakeries (for which an Alternative Control Technology
document was issued in December, 1992) are exempt from the control
requirements in the generic rules. Out of these categories, Illinois
has submitted adopted rules for USEPA approval for all except
industrial wastewater, clean-up solvent operations, autobody
refinishing, and bakeries. Autobody refinishing rules are not required
to satisfy RACT requirements because there are no major autobody
refinishing sources. Illinois' adopted major non-CTG rules are
undergoing USEPA review and will be the subject of separate rulemaking
actions.
Final Rulemaking Action
For the reasons discussed above, USEPA approves the major non-CTG
VOC RACT rules in Part 218 (for the Chicago ozone nonattainment area)
that were submitted on October 21, 1993, and March 4, 1994. More
specifically, this includes all sections of part 218 that were
submitted on March 4, 1994, and Section 218.990 from the October 21,
1993, submittal.
On September 9, 1994, (FR 59 46562) USEPA approved a number of
Illinois' VOC regulations which replaced a large part of the Chicago
FIP, which was promulgated June 29, 1990 (55 FR 26814) and codified at
40 CFR 52.741. This rule completes approval of Illinois' VOC
regulations which, in combination with the rules approved on September
9, 1994, replace the Chicago FIP, as the federally enforceable VOC
rule, except as indicated below:
(1) In accordance with Section 101(b), all FIP requirements remain
in effect (and are enforceable after the effective date of this SIP
revision) for the period prior to the effective date of this SIP
revision.
(2) Any source that received a stay, as indicated in Section
218.103(a)(2), remains subject to the stay if still in effect, or (if
the stay is no longer in effect) the federally promulgated rule
applicable to such source.
As of the effective date of this final action, these rules are the
sole federally enforceable control strategy for sources of VOC located
in the Chicago area.
Because USEPA considers this action noncontroversial and routine,
we are approving it without prior proposal. The action will become
effective on March 26, 1996. However, if we receive adverse comments by
February 26, 1996, then USEPA will publish a notice that withdraws this
final action. If no request for a public hearing has been received,
USEPA will address the public comments received in a new final rule on
the requested SIP revision based on the proposed rule located in the
proposed rules section of this Federal Register. If a public hearing is
requested, USEPA will publish a notice announcing a public hearing and
reopening the public comment period until 30 days after the public
hearing. At the conclusion of this additional public comment period,
USEPA will publish a final rule responding to the public comments
received and announcing final action.
[[Page 2427]]
This action has been classified as a Table 3 action by the Regional
Administrator under the procedures published in the Federal Register on
January 19, 1989 (54 FR 2214-2225), as revised by an October 4, 1993,
memorandum from Michael H. Shapiro, former Acting Assistant
Administrator for the Office of Air and Radiation. A July 10, 1995,
memorandum from Mary D. Nichols, Assistant Administrator for the Office
of Air and Radiation explains that the authority to approve/disapprove
SIPs has been delegated to the Regional Administrators for Table 3
actions. The Office of Management and Budget has exempted this
regulatory action from Executive Order 12866 review.
Nothing in this action should be construed as permitting, allowing
or establishing a precedent for any future request for revision to any
SIP. USEPA shall consider each request for revision to the SIP in light
of specific technical, economic, and environmental factors and in
relation to relevant statutory and regulatory requirements.
Section 202 of the Unfunded Mandates Reform Act of 1995 (``Unfunded
Mandates Act'') (signed into law on March 22, 1995) requires that the
USEPA prepare a budgetary impact statement before promulgating a rule
that includes a Federal mandate that may result in expenditure by
State, local, and tribal governments, in aggregate, or by the private
sector, of $100 million or more in any one year. Section 203 requires
the USEPA to establish a plan for obtaining input from and informing,
educating, and advising any small governments that may be significantly
or uniquely affected by the rule.
Under section 205 of the Unfunded Mandates Act, the USEPA must
identify and consider a reasonable number of regulatory alternatives
before promulgating a rule for which a budgetary impact statement must
be prepared. The USEPA must select from those alternatives the least
costly, most cost-effective, or least burdensome alternative that
achieves the objectives of the rule, unless the USEPA explains why this
alternative is not selected or the selection of this alternative is
inconsistent with law.
Because this final rule is estimated to result in the expenditure
by State, local, and tribal governments or the private sector of less
then $100 million in any one year, the USEPA has not prepared a
budgetary impact statement or specifically addressed the selection of
the least costly, most cost-effective, or least burdensome alternative.
Because small governments will not be significantly or uniquely
affected by this rule, the USEPA is not required to develop a plan with
regard to small governments. This rule only approves the incorporation
of existing state rules into the SIP. It imposes no additional
requirements.
Under the Regulatory Flexibility Act, 5 U.S.C. 600 et seq., USEPA
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, USEPA 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, 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 Act, preparation of a regulatory flexibility analysis would
constitute Federal inquiry into the economic reasonableness of the
State action. The Clean Air Act forbids USEPA to base its actions
concerning SIPs on such grounds. Union Electric Co. v. USEPA., 427 U.S.
246, 256-66 (S.Ct. 1976); 42 U.S.C. 7410(a)(2).
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 March 26, 1996. Filing a
petition for reconsideration by the Administrator of this final rule
does not affect the finality of this rule for the purposes of judicial
review nor does it extend the time within which a petition for judicial
review may be filed, and shall not postpone the effectiveness of such
rule or action. This action may not be challenged later in proceedings
to enforce its requirements. (See Section 307(b)(2)).
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Hydrocarbons,
Incorporation by reference, Intergovernmental relations, Ozone,
Reporting and recordkeeping requirements.
Authority: 42 U.S.C. 7401-7671q.
Dated: November 1, 1995.
Valdas V. Adamkus,
Regional Administrator.
For the reasons stated in the preamble, part 52, chapter I, title
40 of the Code of Federal Regulations is amended as follows:
PART 52--[AMENDED]
1. The authority citation for part 52 continues to read as follows:
Authority: 42 U.S.C. 7401-7671q.
Subpart O--Illinois
2. Section 52.720 is amended by adding paragraph (c)(102) to read
as follows:
Sec. 52.720 Identification of plan.
* * * * *
(c) * * *
(102) On October 21, 1993 and March 4, 1994, the State submitted
volatile organic compound control regulations for incorporation in the
Illinois State Implementation Plan for ozone.
(i) Incorporation by reference.
(A) Title 35: Environmental Protection, Subtitle B: Air Pollution,
Chapter I: Pollution Control Board, chapter c: Emission Standards and
Limitations for Stationary Sources, Part 211: Definitions and General
Provisions, Subpart B: Definitions, Sections 211.270, 211.1070,
211.2030, 211.2610, 211.3950, 211.4050, 211.4830, 211.4850, 211.4970,
211.5390, 211.5530, 211.6110, 211.6170, 211.6250, 211.6630, 211.6650,
211.6710, 211.6830, 211.7050. These sections were adopted on January 6,
1994, Amended at 18 Ill. Reg. 1253, and effective January 18, 1994.
(B) Illinois Administrative Code Title 35: Environmental
Protection, Subtitle B: Air Pollution, Chapter I: Pollution Control
Board, Subchapter c: Emissions Standards and Limitations for Stationary
Sources, Part 218: Organic Material Emissions Standards and Limitations
for the Chicago Area, Subpart PP: 218.927, 218.928; Subpart QQ:
218.947, 218.948; Subpart RR: 218.967, 218.968; Subpart TT: 218.987,
218.988; Subpart UU: 218.990. These sections were adopted on September
9, 1993, Amended at 17 Ill. Reg. 16636, effective September 27, 1993.
(C) Illinois Administrative Code Title 35: Environmental
Protection, Subtitle B: Air Pollution, Chapter I: Pollution Control
Board, Subchapter c: Emissions Standards and Limitations for Stationary
Sources, Part 218: Organic Material Emissions Standards and Limitations
for the Chicago Area, Subpart A: 218.106, 218.108, 218.112, 218.113;
Subpart H: 218.402; Subpart Z:
[[Page 2428]]
218.602, 218.611; Subpart AA: 218.620, 218.623 (repealed); Subpart CC;
Subpart DD; Subpart PP: 218.920, 218.926; Subpart QQ: 218.940, 218.946;
Subpart RR: 218.960, 218.966; Subpart TT: 218.980, 218.986; Subpart UU:
218.991. These sections were adopted on January 6, 1994, Amended at 18
Ill. Reg. 1945, effective January 24, 1994.
* * * * *
3. Section 52.741 is amended by revising paragraph (a)(2) to read
as follows:
Sec. 52.741 Control Strategy: Ozone control measures for Cook, DuPage,
Kane, Lake, McHenry or Will County.
(a) * * *
(2) Applicability.
(i) Effective October 11, 1994, Illinois Administrative Code Title
35: Environmental Protection, Subtitle B: Air pollution, Chapter I:
Pollution Control Board, Subchapter c: Emissions Standards and
Limitations for Stationary Sources, Part 218: Organic Material Emission
Standards and Limitations for the Chicago Area replaces the
requirements of 40 CFR 52.741 Control strategy: Ozone control measures
for Cook, DuPage, Kane, Lake, McHenry and Will County as the federally
enforceable control measures in these counties except as noted in
paragraphs (a)(2)(i) (A) through (C) of this section.
(A) Until March 26, 1996, Illinois' major non-CTG sources in the
Chicago area, subject to paragraph u, v, w, or x because of the
applicability criteria in these paragraphs, continue to be subject to
paragraphs u, v, w, x, and in addition they remain subject to the
recordkeeping requirements in paragraph y and any related parts of
section 52.741 necessary to implement these paragraphs, e.g., those
paragraphs containing test methods, definitions, etc.
(B) In accordance with Section 218.101(b), all FIP requirements
remain in effect and are enforceable after October 11, 1994, for the
period prior to October 11, 1994 (and the major non-CTG FIP
requirements specified in paragraph (a)(2)(i)(A) remain in effect and
are enforceable after March 26, 1996 for the period prior to March 26,
1996.
(C) Any source that received a stay, as indicated in Section
218.103(a)(2), remains subject to the stay if still in effect, or (if
the stay is no longer in effect) the federally promulgated rule
applicable to such source.
(ii) Effective March 26, 1996, Illinois Administrative Code Title
35: Environmental Protection, Subtitle B: Air pollution, Chapter I:
Pollution Control Board, Subchapter c: Emissions Standards and
Limitations for Stationary Sources, Part 218: Organic Material Emission
Standards and Limitations for the Chicago Area replaces the
requirements of 40 CFR 52.741 Control strategy: Ozone control measures
for Cook, DuPage, Kane, Lake, McHenry and Will County as the federally
enforceable control measures in these counties except as noted in
paragraphs (a)(2)(ii) (A) and (B) of this section.
(A) In accordance with Section 218.101(b), all major non-CTG FIP
requirements specified in paragraph (a)(2)(i)(A) remain in effect and
are enforceable after March 26, 1996 for the period prior to March 26,
1996.
(B) Any source that received a stay, as indicated in Section
218.103(a)(2), remains subject to the stay if still in effect, or (if
the stay is no longer in effect) the federally promulgated rule
applicable to such source.
* * * * *
[FR Doc. 96-1297 Filed 1-25-96; 8:45 am]
BILLING CODE 6560-50-P
Complete official Federal Register PDF
FR Doc. 96-1296 Specialty Crops; Import RegulationsExemption of Brine Dried Prunes From Import Requirements
[Federal Register Volume 61, Number 18 (Friday, January 26, 1996)]
[Rules and Regulations]
[Pages 2393-2394]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-1296]
-----------------------------------------------------------------------
DEPARTMENT OF AGRICULTURE
Agricultural Marketing Service
7 CFR Part 999
[FV95-999-1FIR]
Specialty Crops; Import Regulations--Exemption of Brine Dried
Prunes From Import Requirements
AGENCY: Agricultural Marketing Service, USDA.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Department of Agriculture (Department) is adopting as a
final rule, without change, the provisions of an interim final rule
which exempted brine dried prunes from import requirements by
specifying that brine dried prunes do not fall within the definition of
prunes in the import regulation. This rule is implemented in accordance
with section 8e of the Agricultural Marketing Agreement Act of 1937.
Section 8e requires imports of prunes to meet the same or comparable
requirements as those implemented under Federal Marketing Order No.
993, regulating the handling of dried prunes produced in California.
The Department has determined that brine dried prunes are different
from those normally handled by California prune handlers and that such
prunes shall not be subjected to Section 8e import requirements.
EFFECTIVE DATE: February 26, 1996.
FOR FURTHER INFORMATION CONTACT: Valerie L. Emmer, Marketing
Specialist, Marketing Order Administration Branch, Fruit and Vegetable
Division, AMS, USDA, room 2523-S, P.O. Box 96456, Washington, DC 20090-
6456; telephone: 202-205-2829.
SUPPLEMENTARY INFORMATION: This rule is issued under section 8e of the
Agricultural Marketing Agreement Act of 1937, as amended (7 U.S.C. 601-
674) (Act). Section 8e provides that whenever certain specified
commodities, including prunes, are regulated under a Federal marketing
order, imports of those commodities must meet the same or comparable
grade, size, quality, and maturity requirements as those in effect for
the domestically produced commodities.
The Department is issuing this rule in conformance with Executive
Order 12866.
This rule has been reviewed under Executive Order 12778, Civil
Justice Reform. This rule is not intended to have retroactive effect.
This rule will not preempt any State or local laws, regulations, or
policies, unless they present an irreconcilable conflict with this
rule.
There are no administrative procedures which must be exhausted
prior to any judicial challenge to the provisions of import regulations
issued under section 8e of the Act.
Pursuant to the requirements set forth in the Regulatory
Flexibility Act (RFA), the Administrator of 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 rules issued thereunder, are unique in that
they are brought about through group action of essentially small
entities acting on their own behalf.
Import regulations issued under section 8e of the Act are based on
regulations established under Federal marketing orders for fresh
fruits, vegetables, and specialty crops, like prunes. Thus, import
regulations also have small entity orientation and impact both small
and large business entities in a manner comparable to rules issued
under such marketing orders.
There are approximately 10 importers who may be affected by this
final rule. Small agricultural service firms, which include importers
of dried prunes, have been defined by the Small Business Administration
(13 CFR 121.601) as those whose annual receipts are less than
$5,000,000. A majority of the importers may be classified as small
entities.
Prior to publication of the interim final rule in the Federal
Register on November 24, 1995 (60 FR 57910), sulfur-bleached prunes,
commonly known as silver prunes, and high moisture plums were exempt
from import requirements. The interim final rule added brine dried
prunes as an additional exemption under the import regulation. This
rule finalizes that interim final rule.
Brine dried prunes are different in form and character from those
prunes regulated under the order, and were never intended to be subject
to section 8e import requirements. Therefore, it is appropriate that
they be exempt from the dried prune import regulation specified in
Sec. 999.200. Brine dried prunes are imported under International
Harmonized Tariff Schedule No. 0813.20.1000. All prunes now regulated
under the order are imported under Harmonized Tariff Schedule No.
0813.20.2000.
To exempt brine dried prunes from import regulation requirements,
the definition of ``prunes'' in paragraph (a)(1) of Sec. 999.200, was
amended to add brine dried prunes as an exclusion from that definition.
Brine dried prunes are defined as prunes that have been impregnated
with brine or salt during the dehydration process to the extent that
they have lost their form and character as prunes and cannot be
reconstituted to permit economic use of the individual fruits as
prunes.
The change to the import regulation was published in the Federal
Register as an interim final rule on November 24, 1995 (60 FR 57910).
That rule provided that interested persons could file comments through
December 26, 1995. No comments were received.
In accordance with section 8e of the Act, the United States Trade
Representative (USTR) has concurred with the issuance of this rule.
Based on available information, the Administrator of the AMS has
determined that the issuance of this rule will not have a significant
economic
[[Page 2394]]
impact on a substantial number of small entities.
The information collection requirements contained in the referenced
section have been previously approved by the Office of Management and
Budget (OMB) under the provisions of 44 U.S.C. Chapter 35 and have been
assigned OMB number 0581-0099.
After consideration of all relevant matters presented, it is hereby
found that the issuance of this rule will tend to effectuate the
declared policy of the Act.
List of Subjects in 7 CFR Part 999
Dates, Filberts, Food grades and standards, Imports, Nuts, Prunes,
Raisins, Reporting and recordkeeping requirements, Walnuts.
For the reasons set forth in the preamble, 7 CFR part 999 is
amended to read as follows:
PART 999--SPECIALTY CROPS; IMPORT REGULATIONS
Accordingly, the interim final rule amending 7 CFR Part 999 which
was published at 60 FR 57910 on November 24, 1995, is adopted as a
final rule without change.
Dated: January 22, 1996.
Sharon Bomer Lauritsen,
Deputy Director, Fruit and Vegetable Division.
[FR Doc. 96-1296 Filed 1-25-96; 8:45 am]
BILLING CODE 3410-02-P
Complete official Federal Register PDF
FR Doc. 96-1288 Approval and Promulgation of Section 182(f) Exemption to the Nitrogen Oxides (NOINFX) Control Requirements for the Baton Rouge Ozone Nonattainment Area; Louisiana
[Federal Register Volume 61, Number 18 (Friday, January 26, 1996)]
[Rules and Regulations]
[Pages 2438-2446]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-1288]
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[LA-22-1-7184; FRL-5402-7]
Approval and Promulgation of Section 182(f) Exemption to the
Nitrogen Oxides (NOX) Control Requirements for the Baton Rouge
Ozone Nonattainment Area; Louisiana
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: As requested by the State of Louisiana in a petition submitted
to the EPA pursuant to section 182(f)(3) of the Clean Air Act (CAA),
the EPA is granting an exemption from the Reasonably Available Control
Technology (RACT) and New Source Review (NSR) requirements for major
stationary sources of Oxides of Nitrogen (NOX), from the vehicle
Inspection/Maintenance (I/M) NOX requirements, and general
conformity NOX requirements for the Baton Rouge, Louisiana serious
ozone nonattainment area. The EPA is approving the exemption based on a
demonstration that additional NOX reductions would not contribute
to attainment of the National Ambient Air Quality Standard (NAAQS) for
ozone in the nonattainment area. The EPA is not taking final action at
this time on the granting of an exemption from the transportation
conformity requirements of the CAA for the Baton Rouge area. The EPA is
reserving the right to reverse the approval of the exemption if
subsequent modeling data demonstrate an ozone attainment benefit from
NOX emission controls.
EFFECTIVE DATE: This action is effective as of January 18, 1996.
ADDRESSES: Copies of the exemption request, public comments and EPA's
responses are available for inspection at the following address:
United States Environmental Protection Agency, Region 6, Multimedia
Planning and Permitting Division, 1445 Ross Avenue, Suite 700, Dallas,
Texas 75202-2733.
Louisiana Department of Environmental Quality, H.B. Garlock Building,
7290 Bluebonnet, Baton Rouge, Louisiana 70810.
FOR FURTHER INFORMATION CONTACT:
Ms. Jeanne McDaniels or Mr. Quang Nguyen, Air Planning Section (6PD-L),
Multimedia Planning and Permitting Division, U.S. EPA Region 6, 1445
Ross Avenue, Dallas, Texas 75202-2733, telephone (214) 665-7214.
SUPPLEMENTAL INFORMATION:
I. Background
On November 17, 1994, the State of Louisiana submitted a petition
to the EPA requesting that the Baton Rouge serious ozone nonattainment
area be exempted from requirements to implement NOX controls
pursuant to section 182(f) of the CAA. The exemption request is based
on modeling that demonstrates additional NOX emission controls
within the nonattainment area will not contribute to attainment of the
ozone NAAQS within the area. The Baton Rouge ozone nonattainment area
consists of the following parishes: East Baton Rouge, West Baton Rouge,
Pointe Coupee, Livingston, Iberville, and Ascension. The State also
provided supplemental technical reports pertaining to the modeling as
part of the Baton Rouge post-1996 rate-of-progress plan submitted to
the EPA on November 15, 1994. In addition, the State submitted several
follow-up letters to the petition to: (1) revise a number of tables in
the November 17, 1994, petition, and (2) broaden the scope of the
original request to also include exemptions under section 182(f) for
NOX NSR, general conformity, and I/M NOX requirements.
On August 18, 1995, the EPA published a rulemaking proposing
approval of the NOX exemption petition for the six-parish ozone
nonattainment area (60 FR 43100). During the 30-day public comment
period, the EPA received two letters commenting on the proposal. Both
expressed opposition to the exemption. In addition to these comments,
in August 1994 three environmental groups submitted joint adverse
comments on the proposed approvals of NOX exemptions for the Ohio
and Michigan ozone nonattainment areas. The comments addressed the
EPA's general policy regarding NOX exemptions. The commenters
requested that these comments be addressed in all EPA rulemakings
dealing with section 182(f) exemptions.
II. Public Comments
The following discussion summarizes the comments received regarding
the State's petition and/or the EPA's proposed rulemaking and presents
the EPA's responses to these comments.
Comment: Commenters argued that NOX exemptions are provided
for in two separate parts of the CAA, in sections
[[Page 2439]]
182(b)(1) and 182(f). Because the NOX exemption tests in sections
182(b)(1) and 182(f)(1) include language indicating that action on such
requests should take place ``when (the EPA) approves a plan or plan
revision,'' these commenters conclude that all NOX exemption
determinations by the EPA, including exemption actions taken under the
petition process established by section 182(f)(3), must occur during
consideration of an approvable attainment or maintenance plan, unless
the area has been redesignated as attainment. The commenters also
argued that, even if the petition procedures of section 182(f)(3) may
be used to relieve areas of certain NOX requirements, exemptions
from the NOX conformity requirements must follow the process
provided in section 182(b)(1), since section 182(b)(1) is the only
provision explicitly referenced by section 176(c) (the CAA's conformity
provisions).
Response: Section 182(f) contains very few details regarding the
administrative procedures for acting on NOX exemption requests.
The absence of specific guidelines by Congress leaves the EPA with
discretion to establish reasonable procedures consistent with the
requirements of the Administrative Procedure Act (APA).
The EPA disagrees with the commenters regarding the process for
considering NOX exemption requests under section 182(f) and
instead, believes that sections 182(f)(1) and 182(f)(3) provide
independent procedures by which the EPA may act on NOX exemption
requests. The language in section 182(f)(1), which indicates that the
EPA should act on NOX exemptions in conjunction with action on a
plan or a plan revision, does not appear in section 182(f)(3). While
section 182(f)(3) references section 182(f)(1), the EPA believes that
this reference encompasses only the substantive tests in paragraph (1)
(and by extension, paragraph (2)), not the procedural requirement that
the EPA act on exemptions only when acting on State Implementation
Plans (SIPs).
Additionally, section 182(f)(3) provides that ``a person'' (which
section 302(e) of the CAA defines to include a State) may petition for
NOX exemptions ``at any time,'' and requires the EPA to make its
determination within six months of the petition's submission. These key
differences lead the EPA to believe that Congress intended the
exemption petition process of paragraph (3) to be distinct and more
expeditious than the longer plan revision process intended under
paragraph (1).
With respect to major stationary sources, section 182(f) requires
States to adopt NOX RACT and NSR rules, unless exempted. These
rules were generally due to be submitted to the EPA by November 15,
1992. Thus, in order to avoid the CAA sanctions, areas seeking a
NOX exemption would have needed to submit this exemption request
for EPA review and rulemaking action several months before November 15,
1992. In contrast, the CAA specifies that the attainment demonstrations
were not due until November 1993 or 1994 (and the EPA may take up to 12
months to approve or disapprove the demonstrations). For marginal ozone
nonattainment areas (subject to NOX NSR), no attainment
demonstrations are called for in the CAA. For areas seeking
redesignation to attainment of the ozone NAAQS, the CAA does not
specify a deadline for submittal of maintenance demonstrations (in
reality, the EPA would generally consider redesignation requests
without accompanying maintenance plans to be unacceptable). Clearly,
the CAA envisions the submittal of and EPA action on NOX exemption
requests, in some cases, prior to submittal of attainment or
maintenance demonstrations.
With respect to the comment that section 182(b)(1) is the
appropriate authority for granting interim period transportation
conformity NOX exemptions, the EPA agreed with the commenters and
published an interim final rule that changed the transportation
conformity rule's reference to section 182(b)(1) as the correct
authority under the CAA for waiving the NOX ``build/no-build'' and
``less-than-1990 emissions'' tests for certain areas. See 60 FR 44762,
dated August 29, 1995. A related proposed rule (60 FR 44790), published
on the same day, invited public comment on how the Agency plans to
implement section 182(b)(1) transportation conformity NOX
exemptions. That proposal has since been finalized. See 60 FR 57179
(November 14, 1995). However, the EPA also notes that section
182(b)(1), by its terms, only applies to moderate and above ozone
nonattainment areas. Consequently, the EPA believes that the interim
reductions requirements of section 176(c)(3)(A)(iii), and hence the
authority provided in section 182(b)(1) to grant relief from those
interim reduction requirements, apply only with respect to those areas
that are subject to section 182(b)(1). The EPA intends to continue to
apply the transportation conformity rule's ``build/no-build'' and
``less-than-1990 emissions'' tests for purposes of implementing the
requirements of section 176(c)(1). In addition, because general Federal
actions are not subject to section 176(c)(3)(A)(iii), which explicitly
references section 182(b)(1), the EPA will also continue to offer
relief under section 182(f)(3) from the applicable NOX
requirements of the general conformity rule.
In order to demonstrate conformity, transportation related federal
actions that are taken in ozone nonattainment areas not subject to
section 182(b)(1) and, hence, not subject to section 176(c)(3)(A)(iii)
must still be consistent with the criteria specified under section
176(c)(1). Specifically, these actions must not, with respect to any
standard, cause or contribute to new violations, increase the frequency
or severity of existing violations, or delay attainment. In addition,
such actions must comply with the relevant requirements and milestones
contained in the applicable state implementation plan, such as
reasonable further progress schedules, assumptions specified in the
attainment or maintenance demonstrations, numerical emission limits, or
prohibitions. The EPA believes that the ``build/no-build'' and ``less-
than-1990 emissions'' tests provide an appropriate basis for such areas
to demonstrate compliance with the above criteria.
As noted earlier, the EPA intends to continue to offer relief under
section 182(f)(3) from the interim NOX requirements of the
conformity rules that would apply under section 176(c)(1) for the areas
not subject to section 182(b)(1) in the manner described above. The EPA
believes this approach is consistent both with the way NOX
requirements in ozone nonattainment areas are treated under the CAA
generally, and under section 182(f) in particular. The basic approach
of the CAA is that NOX reductions should apply when beneficial to
an area's attainment goals, and should not apply when unhelpful or
counterproductive. Section 182(f) reflects this approach but also
includes specific substantive tests which provide a basis for the EPA
to determine when NOX requirements should not apply. There is no
substantive difference between the technical analysis required to make
an assessment of NOX impacts on attainment in a particular area
whether undertaken with respect to mobile source or stationary source
NOX emissions. Moreover, where the EPA has determined that
NOX reductions will not benefit attainment or would be
counterproductive in an area, the EPA believes it would be unreasonable
to insist on NOX reductions for purposes of meeting reasonable
further progress or other milestone requirements. Thus, even concerning
the conformity
[[Page 2440]]
requirements of section 176(c)(1), the EPA believes it is reasonable
and appropriate to (1) offer relief from the applicable NOX
requirements of the general and transportation conformity rules in
areas where such reductions would not be beneficial, and (2) rely in
doing so on the exemption tests provided in section 182(f).
For moderate and above ozone nonattainment areas which are relying
on modeling data in petitioning for a transportation conformity
NOX exemption, the final rule (60 FR 57179) affects the process
for applying for such waivers. Unlike section 182(f)(3), section
182(b)(1) requires that the EPA approve a NOX waiver (i.e.,
determine that additional reductions of NOX would not contribute
to attainment) as part of a SIP revision. Thus, under section
182(b)(1), petitions for transportation conformity NOX waivers for
areas subject to that section must be submitted as formal SIP revisions
by the Governor (or designee) following a public hearing. As explained
previously, the EPA will continue to process and approve, under section
182(f)(3), conformity NOX waivers for areas not subject to section
182(b)(1) without public hearings or submission by the Governor. The
Baton Rouge serious ozone nonattainment area is subject to the
requirements of section 182(b)(1). Hence, a transportation conformity
NOX waiver would have to be submitted as a revision to the SIP. As
mentioned previously, in this rulemaking, the EPA is not taking a final
action on a NOX exemption for transportation conformity for the
Baton Rouge area. The State of Louisiana has requested a transportation
conformity NOX exemption for the Baton Rouge area through a formal
SIP revision pursuant to section 182(b)(1) of the CAA. The EPA proposed
approval of the revision on October 6, 1995 (60 FR 52348). A final
action on the SIP submittal will be taken in a subsequent rulemaking by
the EPA.
Finally, as noted earlier, the NOX provisions of the general
conformity rule would not be affected by this proposal. A NOX
waiver under section 182(f) removes the NOX general conformity
requirements entirely and would continue to do so. The CAA's provision
for transportation conformity NOX waivers stems from section
176(c)(3)(A)(iii), which addresses only transportation conformity, and
not general conformity. Therefore, the statutory authority for general
conformity NOX waivers is not required to be section 182(b) for
any areas and may continue to be section 182(f) for all areas.
Comment: Commenters argued that waiver of NOX control
requirements is unlawful if such a waiver would impede attainment and
maintenance of the ozone standard in downwind areas.
Response: As a result of these comments, the EPA reevaluated its
position on this issue and has revised previously issued guidance. See
Memorandum, ``Section 182(f) Nitrogen Oxides (NOX) Exemptions--
Revised Process and Criteria,'' dated February 8, 1995, from John
Seitz. As described in this memorandum, the EPA intends to use its
authority under section 110(a)(2)(D) to require a State to reduce
NOX emissions from stationary and/or mobile sources where there is
evidence, such as photochemical grid modeling, showing that the
NOX emissions would contribute significantly to nonattainment in,
or interfere with maintenance by, any other State or in another
nonattainment area within the same State. This action would be
independent of any action taken by the EPA on a NOX exemption
request under section 182(f). That is, the EPA's action to grant or
deny a NOX exemption request under section 182(f) for any area
would not shield that area from the EPA's action to require NOX
emission reductions, if necessary, under section 110(a)(2)(D).
Modeling analyses are underway or will soon be conducted in many
areas for the attainment demonstration SIP revisions required pursuant
to section 182(c)(2)(A). Recent modeling data suggest that certain
ozone nonattainment areas may benefit from reductions in NOX
emissions upwind of the nonattainment areas. For example, the Northeast
Corridor States and the Lake Michigan Ozone Study are considering
attainment strategies which may rely, in part, on NOX emission
reductions hundreds of kilometers upwind. The EPA is working with the
States and other organizations to design and complete studies which
consider upwind sources and quantify their impacts. As the studies
progress, the EPA will continue to work with the States and other
organizations to develop mutually acceptable attainment strategies.
At the same time as the large scale modeling analyses are being
conducted, States have requested exemptions from NOX requirements
under section 182(f) for certain nonattainment areas in the modeling
domains. Some of these nonattainment areas may impact downwind
nonattainment areas. The EPA intends to address the transport issue
under section 110(a)(2)(D), based on a regional modeling analysis.
Under section 182(f) of the CAA, an exemption from NOX
requirements may be granted for nonattainment areas outside of an ozone
transport region if the EPA determines that ``additional reductions of
(NOX) would not contribute to attainment of the national ambient
air quality standard for ozone in the area.'' 1 As described in
section 4.3 of the December 13, 1993, EPA guidance document,
``Guideline for Determining the Applicability of Nitrogen Oxides
Requirements Under Section 182(f),'' the EPA encourages, but does not
require, States/petitioners to consider the impacts on the entire
modeling domain since the effects of an attainment strategy may extend
beyond a designated nonattainment area. Specifically, the guidance
encourages States to consider imposition of the NOX requirements
if needed to avoid adverse impacts in downwind areas, either intra- or
interstate. States need to consider such impacts since they are
ultimately responsible for achieving attainment in all portions of
their State and for ensuring that emissions originating in their State
do not contribute significantly to nonattainment in, or interfere with
maintenance by, any other State. See section 110(a)(2)(D)(i)(I) of the
CAA.
\1\ There are three NOX exemption tests specified in
section 182(f). Of these, two are applicable for areas outside of an
ozone transport region: the ``contribute to attainment'' test
described above, and the ``net air quality benefits'' test. EPA must
determine, under the latter test, that the net benefits to air
quality in an area ``are greater in the absence of NOX
reductions'' from relevant sources. Based on the plain language of
section 182(f), EPA believes that each test provides an independent
basis for receiving a full or limited NOX exemption.
Consequently, as stated in section 1.4 of the December 16, 1993, EPA
guidance, ``[w]here any one of the tests is met (even if another
test is failed), the section 182(f) NOX requirements would not
apply or, under the excess reductions provision, a portion of these
requirements would not apply.''
---------------------------------------------------------------------------
In contrast, section 4.4 of the December 16, 1993, guidance states
that the section 182(f) demonstration would not be approved if there is
evidence, such as photochemical grid modeling, showing that the
NOX exemption would interfere with attainment or maintenance in
downwind areas. The guidance further explains that section 110(a)(2)(D)
(not section 182(f)) prohibits such impacts. Consistent with section
4.3 of the guidance, the EPA believes that the section 110(a)(2)(D) and
182(f) provisions must be considered independently, and hence, has
revised section 4.4 of the December 16, 1993, guidance document. Thus,
if there is evidence that NOX emissions in an upwind area would
interfere with attainment or maintenance in a downwind area, that
problem should be
[[Page 2441]]
separately addressed by the State(s) or, if necessary, by the EPA in a
section 110(a)(2)(D) action. In addition, a section 182(f) exemption
request should be independently considered by the EPA. In some cases,
therefore, the EPA may grant an exemption from across-the-board
NOX RACT controls under section 182(f) and, in a separate action,
require NOX controls from stationary and/or mobile sources under
section 110(a)(2)(D). It should be noted that the controls required
under section 110(a)(2)(D) may be more or less stringent than RACT,
depending on the circumstances.
The State of Louisiana is being included in one of the new modeling
analyses referred to above that is being conducted by the EPA, States,
and other agencies as part of the Ozone Transport Assessment Group
(OTAG). The OTAG process is a consultative process among the eastern
States and the EPA which was initiated by the EPA in a March 2, 1995,
policy memorandum.2 The OTAG assessment process, which is
scheduled to end at the close of 1996, will evaluate regional and
national emission control strategies using improved regional modeling
analyses. The goal of the OTAG process is to reach consensus on
additional regional and national emission reductions that are needed to
support efforts to attain the ozone standard in the eastern United
States. Based on the results of the OTAG process, States have committed
to submit plans (SIP revisions) by mid-1997 which show attainment of
the ozone standard through local, regional, and national emission
controls.
\2\ Memorandum, ``Ozone Attainment Demonstrations,'' dated March
2, 1995, from Mary Nichols, Assistant Administrator for Air and
Radiation, U.S. Environmental Protection Agency.
---------------------------------------------------------------------------
The OTAG plans to complete additional modeling between now and
September 1996 using emissions data and emission control strategies
currently being developed among OTAG workgroups.
As noted in a prior EPA rulemaking dated November 28, 1994 (59 FR
60709), NOX waivers are approved on a contingent basis; the waiver
applies only so long as air quality analyses, such as from additional
ozone modeling, in an exempted area continue to show an attainment
disbenefit or lack of benefit from NOX emission reductions.
Additionally, in the notice of proposed rulemaking on the Baton Rouge
exemption request, 60 FR 43100 (August 18, 1995), the EPA indicated
that the NOX exemption would remain effective for only as long as
modeling continued to show that NOX control activities would not
contribute to attainment in the Baton Rouge area.
The State of Louisiana has conducted a number of additional
modeling analyses (subsequent to the preparation of the NOX waiver
request) to assess the impact of specific emission controls on peak
ozone concentrations. These additional modeling analyses have been
performed to support the State's demonstration of attainment, which is
under development. These modeling analyses are well documented and are
based on a modeling system which has been accepted by the EPA as being
validated for the Baton Rouge modeling domain. EPA continues to believe
that the modeling completed thus far supports granting a NOX
waiver.
As discussed above, the State of Louisiana has been included in the
superregional photochemical modeling of the eastern United States
(U.S.) by the OTAG. The EPA expects the OTAG to complete their work as
scheduled. The EPA will then evaluate the modeling results and their
implications concerning NOX versus volitle organic compound (VOC)
emission controls. The results of this modeling may supersede the urban
airshed model (UAM) demonstration that the EPA is using as the basis
for granting this waiver. To continue the waiver for all NOX
source categories, the modeling must continue to show attainment of the
ozone standard without the use of additional NOX emission
controls. The final modeling may demonstrate attainment of the ozone
standard using a subset of the possible NOX emission controls. In
this situation, the EPA may continue the waiver for the remaining
``non-controlled'' NOX sources under section 182(f)(2) of the CAA.
Comment: Comments were received regarding the scope of exemption of
areas from the NOX requirements of the conformity rules. The
commenters argued that such exemptions waive only the requirements of
section 182(b)(1) to contribute to specific annual reductions, not the
requirement that conformity SIPs contain information showing the
maximum amount of motor vehicle NOX emissions allowed under the
transportation conformity rules, and similarly, the maximum allowable
amounts of any such NOX emissions under the general conformity
rules. The commenters admitted that, in prior guidance, the EPA has
acknowledged the need to amend a drafting error in the existing
transportation conformity rules to ensure consistency with motor
vehicle emissions budgets for NOX, but want the EPA, in actions on
NOX exemptions, to explicitly affirm this obligation and to also
avoid granting waivers until a budget controlling future NOX
increases is in place.
Response: The EPA's transportation conformity rule 3
originally provided a NOX transportation conformity waiver if an
area received a section 182(f) exemption. As indicated in a previous
response, the EPA has changed the reference from section 182(f) to
section 182(b)(1) in the transportation conformity rule since that
section is specifically referenced by the transportation conformity
provisions of the CAA. See 60 FR 44762. The EPA has also consistently
held the view that, in order to conform, nonattainment and maintenance
areas must demonstrate that the transportation plan and the
Transportation Improvement Program (TIP) are consistent with the motor
vehicle emissions budget for NOX even where a conformity NOX
waiver has been granted. Due to a drafting error, that view was not
reflected in the transportation conformity rule. The EPA has amended
the rule to correct this error. See 60 FR 57179. However, the
exemptions that are the subject of this final action do not include
transportation conformity NOX requirements and are being processed
under section 182(f)(3), which requires the EPA to act within 6 months
on the submitted petition. The EPA believes it is appropriate to act on
received petitions as close to the prescribed 6 month time frame as
practicable. Therefore, the EPA intends to process this exemption
request without further delay.
\3\ ``Criteria and Procedures for Determining Conformity to
State or Federal Implementation Plans of Transportation Plans,
Programs, and Projects Funded or Approved under Title 23 U.S.C. of
the Federal Transit Act,'' November 24, 1993 (58 FR 62188).
---------------------------------------------------------------------------
Comment: Commenters argued that the CAA does not authorize any
waiver of the NOX reduction requirements until conclusive evidence
exists that such reductions are counterproductive.
Response: The EPA does not agree with this comment since it ignores
the Congressional intent as evidenced by the plain language of section
182(f), the structure of the Title I ozone subpart as a whole, and
relevant legislative history. By contrast, in developing and
implementing its NOX exemption policies, the EPA has sought an
approach that reasonably accords with that intent. In addition to
imposing control requirements on major stationary sources of NOX
similar to those that apply for sources of VOC, section 182(f), also
provides for an exemption (or limitation) from application of these
requirements if, under one of several tests, the EPA
[[Page 2442]]
determines that, in certain areas, NOX reductions would generally
not be beneficial towards attainment of the ozone standard. In section
182(f)(1), Congress explicitly conditioned action on NOX
exemptions on the results of an ozone precursor study required under
section 185B of the CAA. Because of the possibility that reducing
NOX in an area may either not contribute to ozone attainment or
may cause the ozone problem to worsen, Congress included attenuating
language, not just in section 182(f), but throughout Title I of the
CAA, to avoid requiring NOX reductions where such would not be
beneficial or would be counterproductive. In describing these various
ozone provisions, including section 182(f), the House Conference
Committee Report states in the pertinent part: ``[T]he Committee
included a separate NOX/VOC study provision in section (185B) to
serve as the basis for the various findings contemplated in the
NOX provisions. The Committee does not intend NOX reduction
for reduction's sake, but rather as a measure scaled to the value of
NOX reductions for achieving attainment in the particular ozone
nonattainment area.'' H.R. Rep. No. 490, 101st Cong., 2d Sess. 257-258
(1990).
As noted in the response to an earlier comment, the command in
section 182(f)(1) that the EPA ``shall consider'' the section 185B
report taken together with the timeframe the CAA provides for
completion of the report and for acting on NOX exemption petitions
clearly demonstrate that Congress believed the information in the
completed section 185B report would provide a sufficient basis for the
EPA to act on NOX exemption requests, even in the absence of the
additional information that would be included in affected areas'
attainment or maintenance demonstrations. While there is no specific
requirement in the CAA that EPA actions granting NOX exemption
requests must await ``conclusive evidence,'' as the commenters argue,
there is also nothing in the CAA to prevent the EPA from revisiting an
approved NOX exemption if warranted by additional, current
information.
In addition, the EPA believes, as described in the EPA's December
1993 guidance, that section 182(f)(1) of the CAA provides that the new
NOX requirements shall not apply (or may be limited to the extent
necessary to avoid excess reductions) if the Administrator determines
that any one of the following tests is met:
(1) In any area, the net air quality benefits are greater in the
absence of NOX reductions from the sources concerned;
(2) In nonattainment areas not within an ozone transport region,
additional NOX reductions would not contribute to ozone attainment
in the area; or
(3) In nonattainment areas within an ozone transport region,
additional NOX reductions would not produce net ozone air quality
benefits in the transport region. Based on the plain language of
section 182(f), the EPA believes that each test provides an independent
basis for a full or limited NOX exemption.
Only the first test listed above is based on a showing that
NOX reductions are ``counterproductive.'' If one of the tests is
met (even if another test is failed or not applied), the section 182(f)
NOX requirements would not apply or, under the excess reductions
provision, a portion of these requirements would not apply.
Comment: Commenters provided a generic comment on all section
182(f) actions that three years of ``clean'' data fail to demonstrate
that NOX reductions would not contribute to attainment.
Response: The EPA does not believe that this comment is applicable
to the Baton Rouge action because the area has not based its section
182(f) petition on ``clean'' air monitoring data.
Comment: Commenters stated that the modeling required by the EPA is
insufficient to establish that NOX reductions would not contribute
to attainment since only one level of control, ``substantial''
reductions, is required to be analyzed. As such, the waiver does not
provide a complete picture of the effect larger amounts of NOX
reductions will have on ozone levels. They further explained that an
area must submit an approvable attainment plan before the EPA can know
whether NOX reductions will aid or undermine attainment.
Response: As described in the EPA's December 1993 NOX
exemption guidance, photochemical grid modeling is generally needed to
document cases where NOX reductions are counterproductive to net
air quality, do not contribute to attainment, do not show a net ozone
benefit, or include excess reductions. The UAM or, in a transport
region, the Regional Oxidant Model are acceptable models for these
purposes.
The EPA guidance also states that application of UAM should be
consistent with techniques specified in the EPA ``Guideline on Air
Quality Models (Revised)'' (December 1993). Further, application of UAM
should also be consistent with procedures contained in the EPA
``Guideline for Regulatory Application of the Urban Airshed Model''
(July 1991). Thus, episode selection for the section 182(f)
demonstration should be consistent with the UAM guidance for SIP
attainment demonstrations.
The section 182(f) ``contribute to attainment'' and ``net ozone
benefit'' demonstrations concern an unspecified ``additional
reductions'' of NOX. The EPA's December 1993 guidance specifies
that the analysis should reflect three scenarios of ``substantial''
NOX and VOC emission reductions. The guidance states that, in
scenario (1), the demonstration should use the VOC reductions needed to
attain, as demonstrated by Empirical Kinetic Modeling Approach or UAM
analyses. Alternatively, if the attainment demonstration has not been
completed, the demonstration may use some other substantial VOC
reduction. In any case, the VOC reductions should be substantial and
documented as reasonable to expect for the area, due to the CAA
requirements. In scenario (2), NOX reductions should be modeled
without any VOC reductions above the attainment year baseline. The
level of NOX reductions should reflect the same percent reduction
of anthropogenic VOC emissions in scenario (1) above. In scenario (3),
a similar level of NOX reductions would be modeled along with the
level of VOC reductions chosen. That is, if a 40 percent VOC reduction
is chosen in scenario (1), then the model for scenario (3) would
simulate a 40 percent VOC reduction and approximately a 40 percent
NOX reduction. It would be inappropriate to select a high level of
VOC reductions and a low level of NOX reductions since this could
artificially favor a finding that NOX reductions are not
beneficial; thus, the scenarios are constrained to avoid an
inappropriate analysis.
The EPA believes these analyses are appropriate to determine, in a
directional manner, whether or not NOX reductions are expected to
be beneficial to the air quality in the area/region. These analyses
described in the EPA's December 1993 guidance may be less precise than
an attainment demonstration required under section 182(c). With respect
to the excess reductions provision in section 182(f)(2), however, the
EPA believes that more than a directional analysis is needed (for
reasons described in the December 1993 guidance) and, therefore,
requires an analysis based on the attainment demonstration.
The State's modeling demonstration reflected substantial NOX
reductions in addition to substantial VOC reductions in order to more
accurately characterize near-term VOC and NOX control
[[Page 2443]]
scenarios. In fact, for the NOX waiver, the State modeled a 100
percent reduction in the point source NOX inventory (which
represented a 57 percent reduction in total projected NOX
emissions), along with a 100 percent reduction in point source VOC
emissions (which represented a 46 percent reduction in the total
projected anthropogenic VOC emissions). The analyses showed that the
modeled domain-wide peak ozone concentrations exceeding 120 parts per
billion decreased in response to substantial VOC emission reductions
and increased in response to substantial NOX emission reductions
for all episodes.
Comment: Commenters argued that the CAA does not authorize delaying
implementation of NOX controls if attainment modeling is not
complete.
Response: The EPA believes the modeling analyses submitted are
appropriate to determine, in a directional manner, whether or not
NOX reductions are expected to be beneficial with respect to the
air quality in the area/region.
Comment: One commenter argued that, while NOX controls may be
less beneficial than VOC-only controls in reducing ozone concentrations
in some areas of the Baton Rouge region on some days, the State has not
demonstrated that VOC-only controls will sufficiently reduce ozone
concentrations for the majority of episodes, particularly in areas
farther downwind.
Response: The modeling analyses performed examined the relative
benefits of VOC versus NOX emissions reductions primarily in the
ozone nonattainment and surrounding areas as required by the EPA's
NOX exemption guidance. An assessment of the impact of VOC versus
NOX emission reductions in areas farther downwind (beyond the
modeling domain) was not required by the EPA and, thus, was not
considered in the State analyses submitted in support of the NOX
exemption. The modeling domain selected, however, was large enough to
ensure that it provided resolution of ozone and precursor advection
upwind and downwind of the area of interest. The Baton Rouge modeling
domain, which includes all or part of 20 parishes in Louisiana, covers
both attainment as well as nonattainment parishes. As mentioned
earlier, the analyses showed that the modeled domain-wide peak ozone
concentrations exceeding 120 parts per billion decreased in response to
VOC emission reductions and increased in response to NOX emission
reductions for all episodes.
As noted in the response to an earlier comment, the State of
Louisiana has been included in the OTAG regional modeling domain to
address the impact that transport may have on downwind areas in the
eastern U.S. Based on the outcome of the modeling analyses, the EPA may
require, pursuant to section 110(a)(2)(D), NOX reductions in
upwind areas to address the transport issue.
Comment: One commenter stated that the EPA must rely on the recent
National Academy of Sciences (NAS) report in its review of NOX
waivers. The commenter pointed out that the NAS report found that to
reduce transported ozone NOX reductions are needed.
Response: The NAS report and the EPA's companion report both
support the conclusion that, as a general matter for ozone
nonattainment areas across the country, NOX reductions in addition
to VOC reductions will be needed to achieve attainment. This general
conclusion, however, must be assessed in the context of the more
detailed analysis provided in those same reports. For example, the NAS
report notes that NOX reductions can have either a beneficial or
detrimental effect on ozone concentrations, depending on the locations
and emission rates of VOC and NOX sources in a region. The effect
of NOX reductions depends on the local VOC/NOX ratio and a
variety of other factors. In its report issued pursuant to section 185B
of the CAA, the EPA stated that ``[a]pplication of gridded
photochemical models on a case by case basis is required to determine
the efficacy of NOX controls, because the ozone response to
precursor reductions is area specific.''
The analyses performed in the Baton Rouge area demonstrate a local
disbenefit from NOX control in the modeling domain. Based on these
modeling results, the area meets the test under section 182(f)(1)(A) of
the CAA required to support a waiver from the NOX requirements of
section 182(f). The effect that NOX controls in the Baton Rouge
area may have on ozone levels in the eastern U.S. will be addressed in
the OTAG process.
Comment: NOX emission reductions will not only reduce
transported ozone, but will also improve visibility, especially in
downwind Class I areas.
Response: The NOX control waiver request was submitted based
on sensitivity analyses performed on the episodes selected for the
attainment demonstration required for moderate and above ozone
nonattainment areas. To this end, the focus is on the local ozone
problem in the Baton Rouge area. Other air pollution problems will be
dealt with as part of separate regulatory activities. Moreover, the
NOX exemption test Louisiana is relying on (pursuant to section
182(f)(1)(A)) requires an assessment of only the contribution of
NOX emissions reductions toward ozone attainment.
Comment: One commenter argued that the EPA Administrator has an
obligation, under section 110(a)(2)(D), to prohibit any activity in a
State which will contribute significantly to nonattainment in, or
interfere with maintenance by, any other State. To this end, a
``superregional'' NOX strategy should be adopted before the
Administrator grants any section 182(f) NOX exemption or, at the
very least, NOX exemptions should be restricted to expire if the
OTAG and the EPA are unsuccessful in completing the requirements
outlined in the EPA's March 2, 1995, attainment guidance document.
Response: As discussed earlier in the response concerning transport
to downwind areas, the EPA intends to use its authority under section
110(a)(2)(D) to require a State to reduce NOX emissions from
stationary and/or mobile sources where there is evidence, such as
photochemical grid modeling, showing that the NOX emissions would
contribute significantly to nonattainment in, or interfere with
maintenance by, any other State or in another nonattainment area within
the same State. This action would be independent of any action taken by
EPA on a NOX exemption request under section 182(f).
Comment: One commenter stated that the current ozone standard, 120
parts per billion, may not be adequately protective of public health
and even greater reductions in ozone levels could be required.
Response: The adequacy of the current ozone standard is not the
subject of this rulemaking. The EPA will reserve discussions regarding
the adequacy of the ozone standard for future rulemaking actions on
that subject.
Comment: One commenter argued that biogenic VOC emissions are
underestimated, which would cause a bias in the model towards favoring
VOC control. The commenter further stated that, in the petition, no
mention is made of what an upward revision in the biogenic VOC
emissions inventory would mean for the effectiveness of a VOC-based
control strategy. The commenter argued that mobile source VOC emissions
are significantly underestimated, which would compound with the
possible underestimation of biogenic VOC emissions to make VOC controls
even less effective in reality than they appear in modeling studies.
Also, the commenter asserted that a significant
[[Page 2444]]
underestimation of the mobile source VOC inventory has large
implications because it comprises the largest portion of the
anthropogenic inventory.
Response: Depending on the locality, the mobile source inventory
could comprise a major portion of the anthropogenic inventory. However,
in the case of the Baton Rouge area, the mobile source inventory
accounts for only 18 percent of the total VOC inventory, whereas the
biogenic emissions inventory, which is the major source of VOC
emissions in the Baton Rouge area, accounts for 57 percent of the total
VOC emissions inventory.
In calculating the mobile source emissions inventory for the Baton
Rouge area, the State used the EPA recommended method (i.e., MOBILE5a
for mobile source emission factors and area-specific data for vehicle
miles traveled).
Biogenic hydrocarbon emissions have been determined to play an
important role in the chemistry of urban ozone formation, especially in
warm southern cities. In light of this, the State developed the
biogenic emission inventory for the Baton Rouge area based on area-
specific data. For instance, the area-specific land use database used
in the biogenic emission development was derived from four different
sources: the Louisiana Department of Transportation and Development, a
study of Baton Rouge's biogenic hydrocarbon emissions by Carlos
Cardolino and William Chameides 4 at the Georgia Institute of
Technology using Landsat imagery, the U.S. Geological Survey's Geo-
ecology database, and the U.S. Forest Service's 1991 Forest Statistics
for the Southeast Louisiana Parishes and Forest Statistics of South
Delta Louisiana Parishes. Meanwhile, the emission factors used in
estimating biogenic emissions in the Baton Rouge area were obtained
from the Rasmussen and Khalil 5 and Zimmermann 6 studies of
biogenic sources. (The emission factors from the Rasmussen and Khalil
and Zimmermann studies were derived from direct measurements of various
types of vegetation in the Baton Rouge and Tampa Bay, Florida areas,
respectively.)
\4\ Cardelino, C.A., and W.L. Chameides. ``A Gridded Inventory
of Biogenic Hydrocarbon Emissions for the Baton Rouge Non-attainment
Area.'' October 1989.
\5\ Rasmussen, R.A., and M.A.K. Khalil. ``Forest Hydrocarbon
Emissions: Relationships Between Fluxes and Ambient
Concentrations.'' Journal of the Air and Waste Management
Association. Volume 42, No. 6 (June 1992), p. 5.
\6\ Zimmermann, P.R. ``Testing for Hydrocarbon Emissions from
Vegetation Leaf Litter and Aquatic Surfaces, and Development of a
Methodology for Compiling Biogenic Emission Inventories.'' EPA-450,
4-4-79-004 (1979).
---------------------------------------------------------------------------
The EPA believes that the mobile and biogenic VOC inventories are
sufficiently accurate to produce acceptable modeling results. In
accordance with the EPA's UAM guidance, the State used the 1990
emissions inventory for developing its modeling demonstration. (The EPA
evaluated the State's 1990 base year emissions inventory for Baton
Rouge and published a final approval in the Federal Register on March
15, 1995. See 60 FR 13908.)
Comment: One commenter stated that uncertainties in meteorology can
act as a source of compensating errors for erroneously low VOC
inventories. In the Baton Rouge area, the regions of high anthropogenic
NOX emissions are generally well-separated from the regions of
highest biogenic VOC emissions. This creates uncertainty in accurately
modeling the transport of a high-NOX plume into high biogenic VOC
areas under stagnant wind conditions.
Response: The EPA believes that the conditions described above
(i.e., regions of high-NOX emissions generally well-separated from
high biogenic VOC emissions under stagnant wind conditions) are not
characteristic of the Baton Rouge area, where many major NOX point
sources are either collocated or located within the regions of highest
biogenic VOC emissions. Many of the major NOX point sources, which
are located within the Baton Rouge modeling domain, were taken into
account in the simulations. The model performed well for the episodes
selected, providing a good representation of the spatial and temporal
characteristics of the episode, and generally simulating the observed
peaks well. Also, consistent with EPA guidance, the State performed
diagnostic and sensitivity simulations to determine whether
compensating errors occurred as a result of meteorology and other
inputs and found that no such errors occurred.
Comment: One commenter stated that the EPA should place the burden
of proof on Louisiana to provide affirmative evidence that no negative
impact will occur in downwind areas if NOX reductions are not
imposed in the Baton Rouge area.
Response: Modeling and data analyses addressed in the State's
NOX waiver request demonstrate the positive benefits of VOC
control in the modeling domain. And, as required under section 182(f),
the State has demonstrated that implementing NOX emission controls
will result in greater domain-wide peak ozone concentrations throughout
the Baton Rouge modeling domain. Since the State is relying on the
section 182(f)(1)(A) ``contribute to attainment'' test, it does not
also need to demonstrate that no negative impact will occur in downwind
areas if NOX reductions are not imposed in the Baton Rouge area.
(Also, see the EPA's previous response to comment on transport issues.)
Comment: One commenter stated that NOX reductions have other
air quality benefits in addition to their effect on ozone, and that
granting a NOX waiver will undermine the EPA's efforts to improve
a broad range of air and water quality values in several regional
efforts to address regional environmental problems (i.e., acid rain and
nitrogen deposition into estuaries).
Response: The EPA agrees that NOX emissions can contribute to
air pollution problems independent of their role in ozone formation;
however, the EPA disagrees that the NOX controls required under
section 182(f) of the CAA should be implemented in the Baton Rouge area
regardless of their impact on ozone. As noted in the response to an
earlier comment, section 182(f)(1)(A) specifically provides for an
exemption in cases where NOX emission reductions would not
contribute to attainment of the NAAQS for ozone in the area. The LDEQ
has demonstrated in its petition and in the EPA's proposed action that
the NOX reductions required by section 182(f) would not contribute
to attaining the ozone NAAQS in the Baton Rouge area and, thus, the
area qualifies for an exemption from the CAA's NOX requirements.
At this time, ambient concentrations of nitrogen dioxide (NO2)
in the Baton Rouge area are significantly below the federal NAAQS for
NO2. Therefore, based on the current federal standards, the EPA
does not believe the NO2 levels in Baton Rouge are unsafe. The EPA
is mandated to periodically reevaluate the NAAQS for each criteria
pollutant based on the best information available. The EPA is currently
reviewing the NO2 standard and will evaluate any potential
concerns over the standard through a separate rulemaking process.
Additionally, for the purposes of reducing acid rain deposition,
certain NOX sources will still be required to reduce NOX
emissions under Title IV of the CAA. Other air pollution problems
(i.e., nitrogen deposition into estuaries) will be dealt with as part
of separate regulatory activities.
For these reasons, the EPA does not believe that the NOX
controls required under section 182(f) of the CAA should
[[Page 2445]]
be implemented in the Baton Rouge area regardless of the impact on
ozone.
Comment: One commenter argued that, since the OTAG's assessment of
the influence of NOX on regional transport will not be completed
until late-1996, in the interim, the EPA should, at a minimum, cap
NOX emissions at current levels in the Baton Rouge area, and
require offsets for new emission sources to prevent NOX emissions
increases.
Response: The EPA disagrees with this comment as it pertains to
this action. The CAA authorizes the EPA to grant NOX exemptions
for areas, like Baton Rouge, that qualify under section 182(f) and
requires that the EPA make such determinations within 6 months of
submission of a petition. Also, the EPA anticipates that the State will
submit a modeled attainment demonstration for the six-parish Baton
Rouge nonattainment area well ahead of the schedule outlined in the
EPA's March 2, 1995, attainment guidance. (The State has developed an
attainment demonstration submittal for the Baton Rouge area, which was
put forth for public comment in the October 20, 1995, edition of the
Louisiana Register.) The attainment demonstration establishes a target
level for both VOC and NOX emissions in the area. Additionally, if
a NOX waiver is approved, major point sources of NOX
emissions are still subject to Prevention of Significant Deterioration
requirements. Moreover, in the section 182(f) modeling demonstration,
the State has projected negative growth in point source NOX
emissions from the base year (1990) out to the attainment year (1999).
As noted previously, the EPA's action to grant or deny a NOX
exemption under section 182(f) would not shield the area from EPA
action, under section 110(a)(2)(D), to require even further NOX
emission reductions (beyond those modeled in the attainment
demonstration) if, through the OTAG process or other subsequent
modeling, such reductions are determined to be necessary to address
transport to downwind areas.
III. Effective Date
This rulemaking is effective as of January 18, 1996. The
Administrative Procedure Act (APA), 5 U.S.C. 553(d)(1), permits the
effective date of a substantive rule to be less than thirty days after
publication if the rule ``relieves a restriction.'' Since the approval
of the section 182(f) exemption for the Baton Rouge ozone nonattainment
area is a substantive rule that relieves the restrictions associated
with the CAA Title I requirements to control NOX emissions, the
NOX exemption approval may be made effective upon signature by the
EPA Administrator.
IV. Final Action
The comments received were found to warrant no significant changes
from proposed to final action on this NOX exemption request. The
primary difference between the proposed and final rulemaking is the
addition of the statement that the EPA may require NOX emission
controls in general or on a source-specific basis under section
110(a)(2)(D) of the CAA if future ozone modeling (for example, the OTAG
modeling expected to be completed in late-1996) demonstrates that such
controls are needed to achieve the ozone standard in downwind areas.
Based on subsequent modeling results, the EPA may rescind all or
part(s) of the NOX waiver. Approval of the exemption waives the
Federal requirements for NOX RACT, NOX NSR, vehicle I/M
NOX requirements, and NOX general conformity applicable to
the Baton Rouge ozone nonattainment area. To maintain the waiver,
future modeling must demonstrate attainment of the ozone standard
without the use of additional NOX emission controls. (The modeling
may demonstrate the need for some NOX emission controls,
necessitating the need for a reduction in the source coverage of the
NOX waiver under section 182(f)(2) of the CAA.) Should the EPA
rescind the exemption, the State would be required to begin
implementing applicable NOX RACT, NOX NSR, vehicle I/M
NOX requirements, and NOX general conformity. (To allow point
sources time to purchase NOX control equipment, install it, etc.,
NOX RACT compliance would be required as expeditiously as
practicable, but no later two years following the rescission.)
This action stops the mandatory sanctions clock started on July 1,
1994, as a result of the EPA's finding of failure to submit the
NOX RACT SIP pursuant to section 179(a) of the CAA.
V. Miscellaneous
A. Applicability to Future SIP Decisions
Nothing in this action should be construed as permitting, allowing
or establishing a precedent for any future request for revision to any
state implementation plan. The EPA shall consider each request for
revision to the state implementation plan in light of specific
technical, economic, and environmental factors and in relation to
relevant statutory and regulatory requirements.
B. Executive Order 12866
The Office of Management and Budget has exempted this regulatory
action from review under Executive Order 12866.
C. Regulatory Flexibility
Under the Regulatory Flexibility Act, 5 U.S.C. 600 et seq., the 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, the 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.
This approval does not create any new requirements. Therefore, I
certify that this action 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 the regulatory
flexibility analysis would constitute Federal inquiry into the economic
reasonableness of the State action. The CAA forbids the EPA to base its
actions concerning state implementation plans 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)).
D. Unfunded Mandates
Under sections 202, 203, and 205 of the Unfunded Mandates Reform
Act of 1995 (Unfunded Mandates Act), signed into law on March 22, 1995,
the EPA must assess whether various actions undertaken in association
with proposed or final regulations 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.
The EPA's final action will relieve requirements otherwise imposed
under the CAA and, hence, does not impose any federal intergovernmental
mandate, as defined in section 101 of the Unfunded Mandates Act. This
action also will not impose a 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.
E. Petitions for Judicial Review
Under section 307(b)(1) of the CAA, petitions for judicial review
of this action must be filed in the United States Court of Appeals for
the appropriate circuit by March 26, 1996. Filing a petition for
reconsideration by the Administrator of this final rule does not affect
the finality of this rule for the
[[Page 2446]]
purpose of judicial rule, nor does it extend the time within which a
petition for judicial review may be filed and shall not postpone the
effectiveness of such rule or action. This action may not be challenged
later in proceedings to enforce its requirements. See section 307(b)(2)
of the CAA.
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Oxides of
nitrogen, Incorporation by reference, Intergovernmental relations,
Ozone.
Dated: January 18, 1996.
Carol M. Browner,
Administrator.
40 CFR part 52 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 T--Louisiana
2. Section 52.992 is amended by adding paragraph (b) to read as
follows:
Sec. 52.992 Area-wide nitrogen oxides (NOX) exemptions.
* * * * *
(b) The LDEQ submitted to the EPA on November 17, 1994, a petition
requesting that the Baton Rouge serious ozone nonattainment area be
exempted from the NOX control requirements of the CAA. In
addition, supplemental information was submitted to the EPA by the LDEQ
on January 26, 1995, June 6, 1995, and June 16, 1995. The Baton Rouge
nonattainment area consists of East Baton Rouge, West Baton Rouge,
Pointe Coupee, Livingston, Iberville, and Ascension Parishes. The
exemption request was based on photochemical grid modeling which shows
that reductions in NOX would not contribute to attainment in the
nonattainment area. On January 18, 1996, the EPA approved the State's
request for an areawide exemption from the following requirements:
NOX new source review, NOX reasonably available control
technology, NOX general conformity, and NOX inspection and
maintenance requirements.
[FR Doc. 96-1288 Filed 1-25-96; 8:45 am]
BILLING CODE 6560-50-P
Complete official Federal Register PDF
FR Doc. 96-1246 Fixed Point-to-Point Microwave Service
[Federal Register Volume 61, Number 18 (Friday, January 26, 1996)]
[Rules and Regulations]
[Pages 2452-2453]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-1246]
=======================================================================
-----------------------------------------------------------------------
FEDERAL COMMUNICATIONS COMMISSION
47 CFR Parts 21 and 94
[FCC 95-500]
Fixed Point-to-Point Microwave Service
AGENCY: Federal Communications Commission.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: By this Order portion of the Notice of Proposed Rule Making
and Order, the Commission generally holds in abeyance and will not
process pending applications for frequency assignments in the 38.6-40.0
GHz (39 GHz) band that are mutually exclusive with other applications
or that were still within the 60-day period for filing mutually
exclusive applications as of November 13, 1995. Further, the Commission
holds in abeyance and will not process modification applications for 39
GHz licenses filed on or after November 13, 1995, unless the
application meets certain requirements as discussed in the summary
below. The Commission takes this action to stop processing mutually
exclusive or potentially mutually exclusive applications under outdated
licensing rules in anticipation of the adoption of new licensing rules.
EFFECTIVE DATE: December 15, 1995.
FOR FURTHER INFORMATION CONTACT: Tom Mooring, Office of Engineering and
Technology, (202) 418-2450.
SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Order,
adopted and released December 15, 1995. The complete Notice of Proposed
Rule Making 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 duplication contractor, International Transcription
Service, (202) 857-3800, 2100 M Street, N.W., Suite 140, Washington
D.C. 20037.
Summary of Order
1. In the companion Notice of Proposed Rule Making (``Notice'') in
this proceeding, the Commission proposed to amend the licensing and
technical rules for fixed point-to-point microwave operations in the 39
GHz band. On November 13, 1995, pursuant to delegated authority, the
Wireless Telecommunications Bureau (Bureau) ordered that no additional
applications for 39 GHz frequency assignments would be accepted for
filing as of the date of the Bureau's order pending the outcome of this
proceeding.1 The Bureau observed that over 2,100 applications for
39 GHz licenses had been filed since January 1995, and noted that the
increasing number of applications filed pursuant to the existing rules
was a burden on Commission resources and could inhibit the Commission's
ability to update the regulatory structure of this service in light of
today's marketplace conditions. The Bureau also stated that the freeze
does not apply to applications for assignment or transfer of control of
license. Likewise, the Commission stresses that the interim policy
described below will not apply to assignment or transfer of control
applications, which will continue to be processed under existing
procedures.
\1\ Order, RM-8553, DA 95-2341, released November 13, 1995.
---------------------------------------------------------------------------
2. With respect to previously filed 39 GHz applications now pending
before the Commission, the Commission took the following action.
Pending applications will be processed if (1) they were not mutually
exclusive with other applications at the time of the Bureau's Order,
and (2) the 60-day period for filing mutually exclusive applications
expired prior to November 13, 1995. The Commission concluded that
processing pending applications against which no competing application
has been timely filed will not impede the goals of this proceeding and
can be accomplished without significant burden on Commission resources.
The Commission also proposed to apply to all licenses granted under
this procedure the same revised construction threshold and
grandfathering requirements that it proposed to apply to incumbent 39
GHz licensees who received license grants prior to this Notice.
3. With respect to all other pending applications (i.e., those that
were subject to mutual exclusivity or still within the 60-day period as
of November 13), the Commission concluded that processing and
disposition should be held in abeyance during the pendency of this
proceeding.2 First, resolving mutually exclusive applications
requires greater expenditure of Commission resources than processing
uncontested applications. Second, the Commission is concerned that
attempting to award licenses in mutually exclusive situations under its
current rules could lead to results that are inconsistent with the
objectives of this proceeding. Therefore, the Commission will not
process these applications (or any amendments thereto filed on or after
November 13, 1995) at this time, but intends to determine whether to
process or return them, as appropriate, at the conclusion of this
proceeding. The Commission solicits comment on how these applications
that will be held in abeyance should later be treated if new licensing
and service rules are ultimately adopted in this proceeding.
\2\ Whenever the 60-day ``cut-off'' date for an application
occurs on or after the processing ``freeze'' date of November 13,
1995, we will hold the application in abeyance. This will assure
fairness to potential applicants who were precluded by the freeze
from filing competing applications in time to be entitled to
comparative consideration. Accordingly, all 39 GHz applications
placed on public notice on or after September 14, 1995, will be
treated for purposes of interim processing as if they were mutually
exclusive. See 47 C.F.R. Secs. 21.27, 21.31(b).
---------------------------------------------------------------------------
4. Also in regard to pending applications for 39 GHz licenses,
amendments received on or after November 13, 1995 will be held in
abeyance during the pendency of this proceeding. The Commission will
similarly hold in abeyance those applications for modification of
existing 39 GHz licenses filed on or after November 13, 1995, or
modification
[[Page 2453]]
application amendments filed on or after that date, and will not accept
for filing any additional such modification applications and
amendments, but for the following limited exception which will afford
existing licensees alternative means of meeting the threshold
construction requirement. To be acceptable for filing, modification
applications or amendments to them must meet both of the following
criteria:
Do not involve any enlargement in any portion of the
proposed area of operation; and
Do not change frequency blocks, other than to delete a
frequency block(s).
5. Accordingly, it is ordered, That pending applications for new 39
GHz frequency assignments or for modification to 39 GHz licenses shall
be held in abeyance and not processed until further notice, except as
otherwise indicated in paragraphs 1 through 4 above. It is further
ordered, That applications for modification of 39 GHz licenses or
amendments to pending 39 GHz applications shall not be accepted for
filing until further notice, except as indicated in paragraphs 1
through 4 above. The imposition of these changes in application
processing is procedural in nature and, therefore, is not subject to
the notice and comment and effective date requirements of the
Administrative Procedure Act.3 In any event, good cause exists for
imposing immediately the processing changes without following these
requirements because the changes are necessary to avoid impeding the
purpose of any new rules adopted in this proceeding.
\3\ See Neighborhood TV Co., Inc. v. FCC, 742 F.2d 629 (D.C.
Cir. 1984); Buckeye Cablevision, Inc. v. United States, 438 F.2d 948
(6th Cir. 1971); Kessler v. FCC, 326 F.2d 673 (D.C. Cir. 1963).
---------------------------------------------------------------------------
List of Subjects
47 CFR Part 21
Communications common carriers, Radio.
47 CFR Part 94
Communications equipment, Radio.
Federal Communications Commission.
William F. Caton,
Acting Secretary.
[FR Doc. 96-1246 Filed 1-25-96; 8:45 am]
BILLING CODE 6712-01-P
Complete official Federal Register PDF
FR Doc. 96-1208 New Mexico: Final Authorization of State Hazardous Waste Management Program Revisions
[Federal Register Volume 61, Number 18 (Friday, January 26, 1996)]
[Rules and Regulations]
[Pages 2449-2451]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-1208]
-----------------------------------------------------------------------
[[Page 2450]]
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 271
[FRL-5402-4]
New Mexico: Final Authorization of State Hazardous Waste
Management Program Revisions
AGENCY: Environmental Protection Agency (EPA).
ACTION: Review of Immediate Final Rule; Response to Public Comments.
-----------------------------------------------------------------------
SUMMARY: This notice responds to comments received on the immediate
final rule published on October 17, 1995 (60 FR 53708), and affirms the
agency's decision to authorize the State of New Mexico's revised
program pursuant to 40 CFR 271.21(b)(3).
DATES: Final authorization for New Mexico's program revisions shall be
effective January 2, 1996.
FOR FURTHER INFORMATION CONTACT: Alima Patterson, Region 6
Authorization Coordinator, Grants and Authorization Section, (6PD-G),
U.S. EPA Region 6, First Interstate Bank Tower at Fountain Place, 1445
Ross Avenue, Dallas, Texas 75202, phone (214) 665-8533.
SUPPLEMENTARY INFORMATION: On October 17, 1995, EPA published an
immediate final rule pursuant to 40 CFR 271.21(b)(3) which announced
the agency's decision to authorize New Mexico's revisions to it's
hazardous waste program. Comments were received during the public
comment period from one responder. After considering the comments
received, the Regional Administrator has decided to affirm her decision
to authorize the State of New Mexico for the program revisions. The
significant issues raised by the commentor and EPA's responses are
summarized below. The comments have been summarized, to the extent
possible, according to common areas for ease of response. All comments
have been carefully considered in reaching the decision to approve the
State's program revision.
Comment: The EPA has not provided detailed or specific information
regarding how the Regional Administrator arrived at her determination
that New Mexico's hazardous waste program is (1) equivalent to the
Federal program (2) is consistent with the Federal program, and (3)
provides for adequate enforcement of compliance with the requirements
of RCRA.
Response: The EPA appreciates these comments and certainly has
taken these factors into consideration in reaching a decision. The
primary standard against which EPA measures the New Mexico Program
revision are those set out in Section 3006(b) of RCRA; namely (1) the
State program is equivalent to the federal program, (2) the State
program is consistent with the Federal or state programs applicable in
other states, and (3) the State provides adequate enforcement of
compliance with program requirements.
1. Equivalent Program
The State demonstrated equivalency through it's legal authorities
in their statutes and regulations. The EPA also reviewed the State's
Attorney General Statement, Memorandum of Agreement, Program
Description and other documents included in the State's application.
The State's regulatory authority for the Hazardous and Solid Waste
amendments of 1984 (HSWA) is identical to the federal authority. The
State adopts EPA hazardous waste regulations by reference. Therefore,
the State will enforce equivalent standards for HSWA provisions within
the State.
2. Consistent Program
The EPA implemented the requirement to be consistent with the
federal program at 40 CFR 271.4. This regulation defines an
inconsistent State program as: (1) Any aspect of the State program
which unreasonably restricts, impedes, or operates as a ban on the free
movement across the State border of hazardous waste from or to other
States for treatment, storage, or disposal at facilities authorized to
operate under the Federal or an approved State program shall be deemed
inconsistent. (2) Any aspect of State law or of the State program which
has no basis in human health or environmental protection and which acts
as a prohibition on the treatment, storage or disposal or hazardous
waste in the State may be deemed inconsistent. (3) If the State
manifest system does not meet the requirements of this part, the State
program shall be deemed inconsistent. After review of the State's
program revision application and 40 CFR part 271.4, EPA determined that
the State complies with the consistency requirement.
3. Adequate Enforcement
The EPA has thoroughly and carefully evaluated the State's
hazardous waste management program and is confident that the State
does, in fact, have the resources to administer the HSWA program. The
State maintains a competent permitting staff who are already actively
involved in HSWA permitting.
The EPA and the State are committed to carrying out a quality
Resource Conservation and Recovery Act (RCRA) program in New Mexico.
EPA does not require a State to have a specific amount of resources in
order to be authorized. A State, though, must have sufficient resources
to carry out it's responsibilities. EPA is concerned that New Mexico,
and all States, have the resources and capabilities to implement the
program.
Based on a review of the State's application for program revisions
of its hazardous waste program, EPA determined that the State operates
a RCRA enforcement program which satisfactorily meets the requirements
for compliance evaluation and enforcement authority of 40 CFR 271.15
and 271.16.
The State's compliance and monitoring enforcement strategy contains
enforcement timeframes which are at least equivalent to EPA's
enforcement timeframes. EPA has evaluated the State's performance with
respect to meeting those enforcement timeframes and has found that the
State performance has been satisfactory. The EPA, through oversight
responsibility, must monitor the State's enforcement program. The
Memorandum of Agreement (MOA), Program Description (PD), and the RCRA
section 3011 Multiyear grant entered into by the State and EPA,
establish the procedures for oversight and the terms of the State's
accountability for compliance monitoring and enforcement. These
agreements enable EPA to track the State's enforcement process and
determine if the State is meeting specific commitments which it agreed
to accomplish.
The RCRA section 3011 Multiyear grant awarded to the State will
function like a contract between the State and EPA. The EPA agrees to
pay the State if the State performs certain program activities. If,
through EPA's oversight and grant review, it determines that the State
is not meeting its commitments, limited funding and authorization may
be withdrawn. Although, the State has primary enforcement
responsibility, 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.
The EPA believes that the State has demonstrated in its application
that it will have adequate funds and staffing. It is EPA's
responsibility in the exercise of its oversight role, to insure after
the State is authorized, that it maintains adequate funding and staff
to operate the program according to the commitments set out in the
application. The EPA has conducted extensive training for the staff of
the State on the corrective action program.
[[Page 2451]]
Also, the commentor expressed a concern regarding the Federal
Register notice not listing detailed or specific information on how the
Administrator reached a decision. There is no requirement to provide in
the public notice detailed or specific information regarding how the
Regional Administrator reached her decision. As required by 40 CFR Part
271.21(b), the Federal Register notice did include a summary of New
Mexico's program revisions and indicated that EPA intended to approve
the State's program revision (See 60 FR 53708 and 53709). The notice
also provided that ``Copies of the New Mexico program revision
application and the materials which EPA used in evaluating the revision
are available for inspection and copying from 8:30 a.m. to 4 p.m.,
Monday through Friday at the New Mexico Environment Department and
EPA'' (See 60 FR 53709).
Comment: The Work Share Agreement between EPA and the State
materially impacts the State's ability to meet the statutory
requirements necessary to qualify for authorization.
Response: In the spirit of authorization, the State and EPA have
agreed to a Work Share Plan to enhance the State's hazardous waste
program to ensure that it will be consistent with, equivalent to, and
as stringent as the federal requirements. The EPA headquarters
encourages the use of Work Share Plan to assist the States. The Work
Share Plan is a agreement between EPA Region 6 and the State providing
for EPA to give technical assistance to the New Mexico Environment
Department's (NMED) hazardous waste management program revision in the
review of certain corrective action documents. The Work Share Plan
specifically acknowledges that the State is the regulatory authority
for the correction action program and EPA will not be making final
determinations, thus there is no sharing of regulatory responsibilities
in the authorized program. There should be no ambiguity in how EPA and
the State function as regulators because the State will make all
regulator determinations for those areas that they are authorized for.
The continued involvement of EPA at selected facilities should ensure
consistency between the State and EPA programs.
Decision
The EPA has reevaluated its decision to approve this final
authorization for the State's hazardous waste program and all
documentation, including the authorization application and several EPA
mid-year and end of year evaluation reports on New Mexico.
Additionally, EPA also considered the New Mexico HSWA capability
assessment. The EPA hereby affirms its decision to approve this final
authorization.
Compliance With Executive Order 12866
The Office of Management and Budget has exempted this rule from the
requirements of Section 3 of Executive Order 12866.
Certification Under the Regulatory Flexibility Act
Pursuant to the provisions of 4 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
suspends the applicability of certain Federal regulations in favor of
New Mexico's program, thereby eliminating duplicative requirements for
handlers of hazardous waste in the State. This authorization does not
impose any new burdens on small entities. This rule, therefore, does
not require a regulatory flexibility analysis.
List of Subjects in 40 CFR Part 271
Administrative practice and procedure, Confidential business
information, Hazardous materials transportation, Hazardous waste,
Indian lands, Intergovernmental relations, Penalties, Reporting and
recordkeeping requirements, Water pollution control, Water supply.
Authority: This Final Determination is issued under the
authority of sections 2002(a), 3006 and 7004(b) of the Solid Waste
Disposal Act amended 42 U.S.C. 6912(a), 6926, 6974(b).
Dated: December 14, 1995.
Linda Carroll,
Acting Regional Administrator.
[FR Doc. 96-1208 Filed 1-25-96; 8:45 am]
BILLING CODE 6560-50-P
Complete official Federal Register PDF
FR Doc. 96-1163 Administration, Index to Approved SBA Reporting and Recordkeeping Requirements, and Intergovernmental Review of Small Business Administration Programs and Activities
[Federal Register Volume 61, Number 18 (Friday, January 26, 1996)]
[Rules and Regulations]
[Pages 2394-2398]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-1163]
=======================================================================
-----------------------------------------------------------------------
SMALL BUSINESS ADMINISTRATION
13 CFR Parts 101, 133, and 135
Administration, Index to Approved SBA Reporting and Recordkeeping
Requirements, and Intergovernmental Review of Small Business
Administration Programs and Activities
AGENCY: Small Business Administration.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: In response to President Clinton's government-wide regulatory
reform directive, the Small Business Administration completed a page-
by-page and line-by-line review of all of its existing regulations. As
a result, SBA now clarifies and streamlines its regulations, revising
or eliminating any duplicative, outdated, inconsistent or confusing
provisions. This rule reorganizes all of present Parts 101, 133, and
135 and consolidates them into one new rule. As part of this
streamlining process large portions of present Part 101 have been
removed from the regulations and will be published in the Federal
Register. Present Parts 133 and 135 are revised, updated and
consolidated with Part 101. Finally, the remaining sections are
rewritten into a straightforward ``plain English'' style of writing.
EFFECTIVE DATE: This rule is effective February 26, 1996.
FOR FURTHER INFORMATION CONTACT: Cheri C. Wolff, Chief Counsel for
General Litigation; Office of General Counsel, at (202) 205-6643.
SUPPLEMENTARY INFORMATION: On March 4, 1995, President Clinton issued a
Memorandum to Federal agencies directing them to simplify their
regulations and eliminate those that are unnecessary. In response to
this directive SBA completed a page-by-page, line-by-line review of all
of its existing regulations to determine which should be revised or
eliminated. This rule revises, amends, reorganizes, and consolidates
all of present 13 CFR Parts 101, 133, and 135. This new consolidated
rule reorganizes Part 101 into four subparts and renumbers all
remaining sections to reflect this new configuration.
Proposed changes to Parts 101, 133, and 135 were published in the
Federal Register on November 24, 1995 (60 FR 57965). The public was
invited to comment during a thirty day comment period. SBA received no
comments concerning this part during that time period. Therefore, the
following final rule contains no changes to the proposed rule, except
minor typographical ones.
For a detailed description of the changes to each subpart and the
new organization of Part 101, please refer to SBA's proposed rules,
published at 60 FR 57965 (November 24, 1995).
Compliance With Executive Orders 12612, 12778, and 12866, the
Regulatory Flexibility Act (5 U.S.C. 601, et seq.), and the Paperwork
Reduction Act (44 U.S.C. 35)
SBA certifies that this rule will not have a significant economic
impact on a substantial number of small entities within the meaning of
Executive Order 12866 or the Regulatory Flexibility Act, 5 U.S.C. 601,
et seq. This rule consolidates three Parts of SBA's current
regulations, moves substantial amounts of general organizational
information from SBA's regulations to other sources, and rewrites the
remaining provisions into plain English. Contracting opportunities and
financial assistance for small business will not be affected by this
rule. Therefore, it is not likely to have an annual economic effect of
$100 million or more, result in a major increase in costs or prices, or
have a significant adverse effect on competition or the United States
economy.
For purposes of the Paperwork Reduction Act, 44 U.S.C. 35, SBA
certifies that this final rule contains no new reporting or record
keeping requirements. For purposes of Executive Order 12612, SBA
certifies that this rule will not have any federalism implications
warranting the preparation of a Federalism Assessment. For purposes of
Executive Order 12778, SBA certifies that this rule is drafted, to the
extent practicable, in accordance with the standards set forth in
Section 2 of that Order.
List of Subjects
13 CFR Part 101
Administrative practice and procedure; Authority delegations
(Government agencies); Investigations; Organization and functions
(Government agencies); Reporting and recordkeeping requirements.
13 CFR Part 133
Reporting and recordkeeping requirements.
13 CFR Part 135
Intergovernmental relations.
For the reasons set forth above, and under the authority of 15
U.S.C. 634(b)(6), SBA hereby amends 13 CFR Chapter I as follows:
1. Part 101 is revised to read as follows:
PART 101--ADMINISTRATION
Subpart A--Overview
101.100 What is the purpose of SBA?
101.101 Who manages SBA?
101.102 Where is SBA's Headquarters located?
101.103 Where are SBA's field offices located?
101.104 What are the functions of SBA's field offices?
101.105 Who may use SBA's official seal and for what purposes?
101.106 Does Federal law apply to SBA programs and activities?
101.107 What SBA forms are authorized for public use?
101.108 Has SBA waived any of the public participation exemptions
of the Administrative Procedure Act?
101.109 Do SBA regulations include the section headings?
Subpart B--Employment of Private Counsel
101.200 When does SBA hire private counsel?
101.201 What are the minimum terms of private counsel's employment?
[[Page 2395]]
Subpart C--Inspector General
101.300 What is the Inspector General's authority to conduct
audits, investigations, and inspections?
101.301 Who should receive information or allegations of waste,
fraud, and abuse?
101.302 What is the scope of the Inspector General's authority?
101.303 How are Inspector General subpoenas served?
Subpart D--Intergovernmental Partnership
101.400 What is the purpose of this subpart?
101.401 What programs and activities of SBA are subject to this
subpart?
101.402 What procedures apply to the selection of SBA programs and
activities?
101.403 What are the notice and comment procedures?
101.404 How does the Administrator receive comments?
101.405 How does the Administrator respond to comments?
101.406 What are the Administrator's responsibilities in interstate
situations?
101.407 May the Administrator waive these regulations?
Authority: 5 U.S.C. 552 and App. 3, secs. 2, 4(a), 6(a), and
9(a)(1)(T); 15 U.S.C. 633, 634, 687; 31 U.S.C. 6506; 44 U.S.C. 3512;
E.O. 12372 (July 14, 1982), 47 FR 30959, 3 CFR, 1982 Comp., p. 197,
as amended by E.O. 12416 (April 8, 1983), 48 FR 15887, 3 CFR, 1983
Comp., p. 186.
Subpart A--Overview
Sec. 101.100 What is the purpose of SBA?
The U.S. Small Business Administration (SBA) aids, counsels,
assists, and protects the interests of small business concerns, and
advocates on their behalf within the Government. It also helps victims
of disasters. It provides financial assistance, contractual assistance,
and business development assistance. For a more detailed description of
the functions of SBA see The United States Government Manual, a special
publication of the Federal Register, which is available from
Superintendent of Documents, P.O. Box 371954, Pittsburgh, PA 15250-
7954.
Sec. 101.101 Who manages SBA?
(a) An Administrator, appointed by the President with the advice
and consent of the Senate, manages SBA. The Administrator--
(1) Is responsible to the President and Congress for exercising
direction, authority, and control over SBA.
(2) Determines and approves all policies covering SBA's programs to
aid, counsel, assist, and protect the interests of the nation's small
businesses.
(3) Employs or appoints employees necessary to implement the Small
Business Act, as amended, the Small Business Investment Act, as
amended, and other laws and directives.
(4) Delegates certain activities, by issuing regulations or
otherwise, to Headquarters and field positions.
(b) A Deputy Administrator, appointed by the President with the
advice and consent of the Senate, serves as Acting Administrator during
the absence or disability of the Administrator or in the event of a
vacancy in the Office of the Administrator.
Sec. 101.102 Where is SBA's Headquarters located?
The Headquarters of SBA is at 409 3rd Street, S.W., Washington,
D.C. 20416.
Sec. 101.103 Where are SBA field offices located?
A list of SBA's field offices with addresses, phone numbers and
jurisdictions served is periodically published in the Federal Register.
You can also obtain the address and phone number of an SBA office to
serve you by calling 1-800-8-ASK-SBA or 1-800-827-5722.
Sec. 101.104 What are the functions of SBA field offices?
(a) Regional offices. Regional offices are managed by a Regional
Administrator who is responsible to the Administrator and to the
Associate Administrator for Field Operations. They are located in major
cities and have geographical boundaries which cover multi-state areas.
Regional offices exercise limited authority over field activities
within their region.
(b) District offices. District offices are managed by a District
Director and are located in cities within a region. District offices
are responsible to Headquarters, the Associate Administrator for Field
Operations, and to a regional office. Within their delegated authority,
district offices have authority for--
(1) Conducting all program delivery activities within the district
boundaries;
(2) Supervising all branch offices located within the district
boundaries; and
(3) Providing subordinate branch offices with the technical
capability necessary to execute assigned programs.
(c) Branch offices. Branch offices are managed by a Branch Manager
and are located in cities within a district. Branch offices are
responsible to the district office within whose boundaries it is
located. Branch offices execute one or more elements of the business or
disaster loan programs and have limited authority for program
execution.
(d) Disaster area offices. Disaster area offices are managed by
Area Directors and are located in cities within defined geographical
areas. Disaster area offices are responsible to Headquarters and
provide loan services to victims of declared disasters. Temporary
disaster offices are often established in areas where disasters have
occurred.
(e) Responsibilities. Each field office has responsibilities within
a defined geographical area as periodically set forth in the Federal
Register.
Sec. 101.105 Who may use SBA's official seal and for what purposes?
(a) The SBA's seal shall be in a manner and form set forth as
follows:
BILLING CODE 8025-01-P
[GRAPHIC] [TIFF OMMITTED] TR26JA96.001
BILLING CODE 8025-01-C
(b) The Administrator, Deputy Administrator, General Counsel,
Assistant Administrator for Administration, Assistant Administrator for
Hearings and Appeals, Associate Administrator for Minority Enterprise
Development, Regional Administrators, District Directors, Branch
Managers, the Inspector General, and Disaster Area Directors are
authorized to--
(1) Certify and authenticate originals and copies of any books,
records, papers, or other documents on file within SBA, or extracts
taken from them.
(2) Certify the nonexistence of records.
(3) Affix the Seal of SBA to all such certifications for those
purposes authorized by 28 U.S.C. 1733.
Sec. 101.106 Does Federal law apply to SBA programs and activities?
(a) SBA makes loans and provides other services that are authorized
and executed under Federal programs to achieve national purposes.
(b) The following are construed and enforced in accordance with
Federal law--
(1) Instruments evidencing loans;
(2) Security interests in real or personal property payable to or
held by SBA or the Administrator such as
[[Page 2396]]
promissory notes, bonds, guarantee agreements, mortgages, and deeds of
trust;
(3) Other evidences of debt or security;
(4) Contracts or agreements to which SBA is a party, unless
expressly provided otherwise.
(c) To the extent feasible, SBA uses local or state procedures,
especially for recordation and notification purposes, in implementing
and facilitating SBA's loan programs. This use of local or state
procedures is not a waiver by SBA of any Federal immunity from any
local or state control, penalty, tax, or liability.
(d) No person, corporation, or organization that applies for and
receives any benefit or assistance from SBA, or that offers any
assurance or security upon which SBA relies for the granting of such
benefit or assistance, is entitled to claim or assert any local or
state law to defeat the obligation incurred in obtaining or assuring
such Federal benefit or assistance.
Sec. 101.107 What SBA forms are approved for public use?
(a) SBA uses forms approved by the Office of Management and Budget
(OMB) under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et
seq.), as amended. You may obtain approved forms for use by the public
when applying for or obtaining SBA assistance, or when providing
services for SBA, from any field office (see Sec. 101.103). You may
also use forms which you have prepared yourself, or have obtained from
another source, if those forms are identical in every respect to the
forms approved by OMB for the same purpose.
(b) Any member of the public who has reason to believe any SBA
office or agent is in violation of the Public Protection Clause of the
Paperwork Reduction Act (44 U.S.C. 3512 and see 5 CFR 1320.6) should
notify SBA. Direct such comments to the Assistant Administrator for
Administration at 409 3rd Street, S.W., Washington, DC 20416.
Sec. 101.108 Has SBA waived any of the public participation exemptions
of the Administrative Procedure Act?
Yes. Despite these exemptions, SBA will follow the public
participation requirements of the Administrative Procedure Act, 5
U.S.C. 553, in rulemakings relating to public property, loans, grants,
benefits, or contracts.
Sec. 101.109 Do SBA regulations include the section headings?
Yes. All SBA regulations must be interpreted as including the
section headings.
Subpart B--Employment of Private Counsel
Sec. 101.200 When does SBA hire private counsel?
(a) Business loans. SBA may hire private counsel to represent it in
regard to business loans when the volume of activity in an area is not
sufficient to require a full-time SBA employee, or the area is too
remote for economical use of a full-time SBA employee.
(b) Disaster loans. SBA may hire private counsel in regard to
disaster loans when the disaster presents an emergency and a volume of
activity that cannot be promptly and economically serviced by available
SBA employees.
Sec. 101.201 What are the minimum terms of private counsel's
employment?
(a) Private counsel must perform all requested work in compliance
with SBA's regulations, policies, and instructions, and take such
action as is legally required under the Small Business Act, the Small
Business Investment Act, and other laws applicable to SBA.
(b) Private counsel must adhere to the highest standards of
professional conduct and maintain confidentiality appropriate to the
attorney-client relationship.
(c) Private counsel acts under the supervision of the SBA General
Counsel (and designees).
(d) Private counsel usually is compensated at an hourly rate as
approved by SBA. Contingency fee agreements may be used if approved by
the General Counsel.
(e) Either party may terminate the employment upon written notice.
Subpart C--Inspector General
Sec. 101.300 What is the Inspector General's authority to conduct
audits, investigations, and inspections?
The Inspector General Act of 1978, as amended (5 U.S.C. App. 3)
authorizes SBA's Inspector General to provide policy direction for, and
to conduct, supervise, and coordinate such audits, investigations, and
inspections relating to the programs and operations of SBA as appears
necessary or desirable.
Sec. 101.301 Who should receive information or allegations of waste,
fraud and abuse?
The Office of Inspector General should receive all information or
allegations of waste, fraud, or abuse regarding SBA programs and
operations.
Sec. 101.302 What is the scope of the Inspector General's authority?
To obtain the necessary information and evidence, the Inspector
General (and designees) have the right to:
(a) Have access to all records, reports, audits, reviews,
documents, papers, recommendations, and other materials available to
SBA and relating to SBA's programs and operations;
(b) Require by subpoena the production of all information,
documents, reports, answers, records, accounts, papers, and other data
and documentary evidence;
(c) Administer oaths and affirmations or take affidavits; and
(d) Request information or assistance from any Federal, state, or
local government agency or unit.
Sec. 101.303 How are Inspector General subpoenas served?
(a) Service of subpoenas may be effected by any of the following
means--
(1) If by mail, a copy of the subpoena must be addressed to the
person, partnership, corporation, or unincorporated association to be
served at a residence or usual dwelling place, or a principal office or
place of business, and mailed first class by registered or certified
mail (postage prepaid, return receipt requested), or by a commercial or
U.S. Postal Service overnight or express delivery service.
(2) If by personal delivery, a copy of the subpoena must be
delivered to the person to be served, or to a member of the partnership
to be served, or to an executive officer or a director of the
corporation or unincorporated association to be served, or to a person
authorized by appointment or by law to receive process for the person
or entity named in the subpoena.
(3) If by delivery to an address, a copy of the subpoena must be
left at the principal office or place of business of the person,
partnership, corporation, or unincorporated association to be served,
or at the residence or usual dwelling place of the person, member of
the partnership, or officer or director of the corporation or
unincorporated association to be served, with someone of suitable age
and discretion.
(b) Proof of service--
(1) When service is by registered, certified, overnight, or express
mail, it is complete upon delivery of the document by the Postal
Service or commercial service.
(2) The return Postal Service receipt for a document that was
registered or certified and mailed, the signed receipt for a document
delivered by an overnight or express delivery service, or the Return of
Service completed by the individual serving the subpoena by personal
delivery shall be proof of service.
[[Page 2397]]
Subpart D--Intergovernmental Partnership
Sec. 101.400 What is the purpose of this subpart?
(a) This subpart implements section 401 of the Intergovernmental
Cooperation Act (31 U.S.C. 6506 et seq.) which promotes
intergovernmental partnership and strengthens Federalism by relying on
state processes and state, area-wide, regional, and local coordination
for the review of proposed Federal financial assistance and direct
Federal development.
(b) While guiding SBA's management, this subpart does not create
any right or benefit enforceable at law.
Sec. 101.401 What programs and activities of SBA are subject to this
subpart?
SBA publishes in the Federal Register a list of programs and
activities subject to this subpart.
Sec. 101.402 What procedures apply to the selection of SBA programs
and activities?
(a) A state may--
(1) Select any program or activity published in the Federal
Register under Sec. 101.401 for intergovernmental review (providing it
consults with local elected officials before doing so) and then notify
the Administrator of the programs and activities selected; and
(2) Notify the Administrator of changes in its selections at any
time. For each change, the state submits to the Administrator an
assurance that it consulted with local elected officials regarding the
change.
(b) SBA may establish deadlines by which states must inform the
Administrator of changes in their program selections.
(c) After receiving notice of a state's selections, the
Administrator uses a state's process as soon as feasible depending on
individual programs and activities.
(d) ``State'' means any of the 50 States, the District of Columbia,
the Commonwealth of Puerto Rico, the Commonwealth of the Northern
Mariana Islands, Guam, American Samoa, the U.S. Virgin Islands, or the
Trust Territory of the Pacific Islands.
Sec. 101.403 What are the notice and comment procedures?
(a) The Administrator provides notice to directly affected state,
area-wide, regional, and local entities in a state of proposed SBA
financial assistance or direct SBA development if--
(1) The state has not adopted a process under Executive Order 12372
(3 CFR, 1982 Comp., p. 197), as amended by Executive Order 12416 (3
CFR, 1983 Comp., p. 186); or
(2) The assistance or development involves a program or activity
not selected for the state process.
(b) Notice may be made by publication in the Federal Register or
other means as SBA deems appropriate.
(c) Except in unusual circumstances the Administrator gives state
processes or directly affected state, area-wide, regional, and local
officials and entities at least 60 days to comment on proposed SBA
financial assistance or direct SBA development.
(d) In cases where SBA delegates the review, coordination, and
communication authority under this subpart, this section also applies.
Sec. 101.404 How does the Administrator receive comments?
(a) The Administrator follows the procedures of Sec. 101.405 if--
(1) A state office or official is designated to act as a single
point of contact between a state process and all Federal agencies; and
(2) That office or official transmits a state process
recommendation for a program selected under Sec. 101.402(a).
(b)(1) The single point of contact is not obligated to transmit
comments from state, area-wide, regional, or local officials and
entities where there is no state process recommendation.
(2) If a state process recommendation is transmitted by a single
point of contact, all comments from state, area-wide, regional, and
local officials and entities that differ from it must also be
transmitted.
(c) If a state has not established a process, or is unable to
submit a state process recommendation, state, area-wide, regional, and
local officials and entities may submit comments to SBA.
(d) If a program or activity is not selected for a state process,
state, area-wide, regional, and local officials and entities may submit
comments to SBA. In addition, if a state process recommendation for a
non-selected program or activity is transmitted to SBA by the single
point of contact, the Administrator follows the procedures of
Sec. 101.405.
(e) The Administrator considers comments which do not constitute a
state process recommendation submitted under this subpart and for which
the Administrator is not required to apply the procedures of
Sec. 101.405 when such comments are provided by a single point of
contact directly to SBA by a commenting party.
Sec. 101.405 How does the Administrator respond to comments?
(a) If a state process provides a recommendation to SBA through its
single point of contact, the Administrator:
(1) Accepts the recommendation; or
(2) Reaches a mutually agreeable solution with the state process;
or
(3) Provides the single point of contact with a written explanation
of the decision in a form the Administrator deems appropriate. The
Administrator may also supplement the written explanation by telephone
or other means.
(b) In any explanation under paragraph (a)(3) of this section, the
Administrator informs the single point of contact that--
(1) SBA will not implement its decision for at least 10 days after
the single point of contact receives the explanation; or
(2) Because of unusual circumstances the waiting period of at least
10 days is not feasible.
(c) For purposes of computing the waiting period under paragraph
(b)(1) of this section, a single point of contact is presumed to have
received written notification 5 days after the date of mailing.
Sec. 101.406 What are the Administrator's responsibilities in
interstate situations?
The Administrator is responsible for--
(a) Identifying proposed SBA financial assistance and direct SBA
development that have an impact on interstate areas;
(b) Notifying appropriate officials and entities in states which
have adopted a process and selected an SBA program or activity;
(c) Making efforts to identify and notify the affected state, area-
wide, regional, and local officials and entities in states that have
not adopted a process or selected an SBA program or activity;
(d) Using the procedures of Sec. 101.405 if a recommendation of a
designated area-wide agency is transmitted by a single point of contact
in cases in which the review, coordination, and communication with SBA
has been delegated; and
(e) Using the procedures of Sec. 101.405 if a state process
provides a state recommendation to SBA through a single point of
contact.
Sec. 101.407 May the Administrator waive these regulations?
The Administrator may waive any provision of Secs. 101.400 through
and including 101.406 in an emergency.
PARTS 133 AND 135--[REMOVED]
2. Parts 133 and 135 are removed.
[[Page 2398]]
Dated: January 19, 1996.
Philip Lader,
Administrator.
[FR Doc. 96-1163 Filed 1-25-96; 8:45 am]
BILLING CODE 8025-01-P
Complete official Federal Register PDF
FR Doc. 96-1161 Standards of Conduct and Other Employee Responsibilities
[Federal Register Volume 61, Number 18 (Friday, January 26, 1996)]
[Rules and Regulations]
[Pages 2398-2401]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-1161]
-----------------------------------------------------------------------
SMALL BUSINESS ADMINISTRATION
13 CFR Part 105
Standards of Conduct and Other Employee Responsibilities
AGENCY: Small Business Administration.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Small Business Administration (SBA) amends its regulations
governing employee standards of conduct. This amendment repeals
provisions that are superseded by the Office of Government Ethics (OGE)
Uniform Standards of Conduct for Employees of the Executive Branch (5
CFR Part 2635); amends one provision by adding the Associate General
Counsel for General Law as an Assistant Standards of Conduct Counselor;
and renumbers the remaining provisions with several minor technical
amendments.
EFFECTIVE DATE: This rule is effective February 26, 1996.
FOR FURTHER INFORMATION CONTACT: Robinson S. Nunn, Chief Counsel for
Ethics, Office of the General Counsel, U.S. Small Business
Administration, 409 Third Street SW., Washington, D.C. 20416, (202)
205-6867, or Martin D. Teckler, Deputy General Counsel (202) 205-6642.
SUPPLEMENTARY INFORMATION: The Small Business Administration repeals
numerous provisions of its existing standards of conduct regulations at
13 CFR Part 105 as either superseded by the Office of Government
Ethics' (OGE) Uniform Standards of Ethical Conduct for Employees of the
Executive Branch (5 CFR Part 2635), eliminated by other regulatory
authority, or determined to be inappropriate for continued inclusion in
this part. SBA repeals the following sections of 13 CFR Part 105:
105.101 through 105.301; 105.401; 105.402; 105.405; 105.406 through
105.408; 105.501 through 105.505; 105.506 except paragraph (g)(1);
105.507 through 105.515; 105.518 through 105.521 and 105.901. The
remaining provisions of 13 CFR Part 105 are renumbered and renamed
``Standards of Conduct and Employee Restrictions and
Responsibilities.''
In place of SBA's former standards at 13 CFR Part 105, SBA issues a
residual cross reference provision at new 13 CFR section 105.101 to
refer to the uniform Standards of Conduct and financial disclosure
regulations for Executive Branch employees and SBA's Supplemental
Standards of Conduct regulation. Additionally, SBA reissues, in the new
13 CFR Part 105, several provisions regarding other employee
responsibilities.
Proposed changes to Part 105 were published in the Federal Register
on November 27, 1995 (60 FR 58260). The public was invited to comment
during a thirty day comment period. SBA received seven comments (all of
which concerned post-employment restrictions) during that time period.
SBA discusses the comments and SBA's response here.
Section 105.201, ``Definitions'': This section provides definitions
unique to SBA which are applicable throughout Part 105. The definition
of ``SBA Assistance'' (Sec. 105.201(e)) was proposed to be amended to
include all participating lenders, including banks, as recipients of
SBA Assistance. This proposal generated several comments, which noted
that SBA employees with specialized knowledge losing jobs due to
downsizing would now be precluded from employment with participating
lenders, and that such employment is often the only means available to
such employees to maintain a customary standard of living and make use
of education and skills. SBA employees commented that the SBA would be
unable to attract private sector employees to the SBA if they believe
that they will be unmarketable when they leave the government. In
addition, participants in SBA's financial programs commented that the
interpretation would deny them a qualified universe of potential
employees to the detriment of the delivery of SBA's programs.
As a result of these comments, and those relative to the other
sections contained in the proposal (discussed below), SBA has
determined that revision of the definition will be deferred. This final
rule therefore merely restates the existing definition of SBA
Assistance, and does not adopt the proposed change, pending further
review.
SBA also received three comments concerning Section 105.202,
``Employment of Former Employee by Person Previously the Recipient of
SBA Assistance''. This section, the first of two sections providing
restrictions relating to former SBA employees, was not changed by the
proposed rule, although the preamble to this section did not make that
fact completely clear. All of the comments were directed at the effect
on Sec. 105.202 of the addition of participating lenders as recipients
of SBA Assistance to the definition section of section 105.201(e).
All three commenters were concerned that agency employees losing
their employment as a result of an involuntary separation or those
otherwise seeking post-SBA employment would be unfairly denied
employment best suited for their specialized knowledge and education
and would be unable the maintain their lifestyles and support their
families by virtue of section 105.202. One of the commenters also
argued that 105.202 should not apply to Certified Development Companies
(CDC's), because they are not business enterprises receiving loans from
the agency and should therefore be exempt from this rule.
As set forth above, the proposed rule made no change to section
105.202 which is based upon section 13 of the Small Business Act. To
the extent all of these comments were directed at the addition of
participating lenders to the Sec. 105.201 definition of SBA Assistance,
that issue is addressed by the withdrawal of the proposal.
The same issue arises in connection with section 105.203 ``SBA
Assistance to Person Employing Former SBA Employee.'' This section is
based on the same provision of the Small Business Act as section
105.202. It prohibits SBA from providing assistance to any Person who
has as an employee, owner, partner, attorney, agent, owner of stock,
officer, director, creditor, or debtor, any individual who, within one
year prior to the request for such assistance, was an SBA employee,
without the prior approval of the SBA Standards of Conduct Counselor.
Additionally, this section sets forth the criteria to be used in
reviewing such applications for SBA Assistance.
SBA received one comment on this section to the effect that this
provision unfairly penalizes a business which hires a qualified former
SBA employee.
As discussed above, to the extent that the impact of this section
was proposed to be altered by adding Participating lenders as
recipients of Assistance, the provision is unaffected by this rule.
However, it is SBA's intent to revisit both sections 105.202 and
105.203 at a later point keeping in mind the comments received in this
rulemaking.
SBA received no other comments on this rule. For a detailed
description of the other changes made to this rule, please refer to
SBA's proposed rules, published at 60 FR 58260 (November 27, 1995).
[[Page 2399]]
Compliance With Executive Orders 12612, 12778 and 12866; the Regulatory
Flexibility Act, 5 U.S.C. 601 et seq.; and the Paperwork Reduction Act,
44 U.S.C. ch. 35
SBA certifies that this rule will not be considered a significant
rule within the meaning of Executive Order 12866 and does not have a
significant economic impact on a substantial number of small entities
within the meaning of the Regulatory Flexibility Act, 5 U.S.C. 601, et
seq.
For purposes of Executive Order 12612, SBA certifies that this rule
does not have federalism implications. For purposes of Executive Order
12778, SBA certifies that this rule is drafted, to the extent
practicable, in accordance with the standards set forth in section 2 of
that Order.
For purposes of the Paperwork Reduction Act, SBA certifies that
this rule, if promulgated in final, will impose no new reporting or
recordkeeping requirements.
List of Subjects in 13 CFR Part 105
Conflict of interests.
For the reasons set forth above, part 105 of title 13, Code of
Federal Regulations, is revised to read as follows:
PART 105--STANDARDS OF CONDUCT AND EMPLOYEE RESTRICTIONS AND
RESPONSIBILITIES
Standards of Conduct
Sec.
105.101 Cross reference to employee ethical conduct standards and
financial disclosure regulations.
Restrictions and Responsibilities Related to SBA Employees and Former
Employees
105.201 Definitions.
105.202 Employment of former employee by person previously the
recipient of SBA Assistance.
105.203 SBA Assistance to person employing former SBA employee.
105.204 Assistance to SBA employees or members of their household.
105.205 Duty to report irregularities.
105.206 Applicable rules and directions.
105.207 Politically motivated activities with respect to the
Minority Small Business Program.
105.208 Penalties.
Restrictions on SBA Assistance to Other Individuals
105.301 Assistance to officers or employees of other Government
organizations.
105.302 Assistance to employees or members of quasi-Government
organizations.
Administrative Provisions
105.401 Standards of Conduct Committee.
105.402 Standards of Conduct Counselors.
105.403 Designated Agency Ethics Officials.
Authority: 5 U.S.C. 7301; 15 U.S.C. 634, 637(a)(18) and (a)(19),
642, and 645(a).
Standards of Conduct
Sec. 105.101 Cross-reference to employee ethical conduct standards
and financial disclosure regulations.
In addition to this Part, Small Business Administration (SBA)
employees should refer to the Uniform Standards of Ethical Conduct for
Executive Branch employees at 5 CFR Part 2635, the SBA Supplemental
Standards of Ethical Conduct at 5 CFR Chapter XLIV, and the Uniform
Financial Disclosure regulation for Executive Branch employees at 5 CFR
Part 2634.
Restrictions and Responsibilities Related to SBA Employees and Former
Employees
Sec. 105.201 Definitions.
(a) Employee means an officer or employee of the SBA regardless of
grade, status or place of employment, including employees on leave with
pay or on leave without pay other than those on extended military
leave. Unless stated otherwise. Employee shall include those within the
category of Special Government Employee.
(b) Special Government Employee means an officer or employee of
SBA, who is retained, appointed or employed to perform temporary duties
on a full-time or intermittent basis, with or without compensation, for
not to exceed 130 days during any period of 365 consecutive days.
(c) Person means an individual, a corporation, a company, an
association, a firm, a partnership, a society, a joint stock company,
or any other organization or institution.
(d) Household member means spouse and minor children of an
employee, all blood relations of the employee and any spouse who
resides in the same place of abode with the employee.
(e) SBA Assistance means financial, contractual, grant, managerial
or other aid, including size determinations, section 8(a)
participation, licensing, certification, and other eligibility
determinations made by SBA. The term also includes an express decision
to compromise or defer possible litigation or other adverse action.
Sec. 105.202 Employment of former employee by person previously the
recipient of SBA Assistance.
(a) No former employee, who occupied a position involving
discretion over, or who exercised discretion with respect to, the
granting or administration of SBA Assistance may occupy a position as
employee, partner, agent, attorney or other representative of a concern
which has received this SBA Assistance for a period of two years
following the date of granting or administering such SBA Assistance
if--
(1) The date of granting or administering such SBA Assistance was
within the period of the employee's term of employment; or
(2) The date of granting or administering such SBA Assistance was
within one year following the termination of such employment.
(b) Failure of a recipient of SBA Assistance to comply with these
provisions may result, in the discretion of SBA, in the requirement for
immediate repayment of SBA financial Assistance, the immediate
termination of other SBA Assistance involved or other appropriate
action.
Sec. 105.203 SBA Assistance to person employing former SBA employee.
(a) SBA will not provide SBA Assistance to any person who has, as
an employee, owner, partner, attorney, agent, owner of stock, officer,
director, creditor or debtor, any individual who, within one year prior
to the request for such SBA Assistance was an SBA employee, without the
prior approval of the SBA Standards of Conduct Counselor. The Standards
of Conduct Counselor will refer matters of a controversial nature to
the Standards of Conduct Committee for final decision; otherwise, his
or her decision is final.
(b) In reviewing requests for approval, the Standards of Conduct
Counselor will consider:
(1) The relationship of the former employee with the applicant
concern;
(2) The nature of the SBA Assistance requested;
(3) The position held by the former employee with SBA and its
relationship to the SBA Assistance requested; and
(4) Whether an apparent conflict of interest might exist if the SBA
Assistance were granted.
Sec. 105.204 Assistance to SBA employees or members of their
household.
Without the prior written approval of the Standards of Conduct
Committee, no SBA Assistance, other than Disaster loans under
subparagraphs (1) and (2) of section 7(b) of the Small Business Act,
shall be furnished to a person when the sole proprietor, partner,
officer, director or significant stockholder of the person is an SBA
employee or a household member.
Sec. 105.205 Duty to report irregularities.
Every employee shall immediately report to the SBA Inspector
General any
[[Page 2400]]
acts of malfeasance or misfeasance or other irregularities, either
actual or suspected, arising in connection with the performance by SBA
of any of its official functions.
Sec. 105.206 Applicable rules and directions.
Every employee shall follow all agency rules, regulations,
operating procedures, instructions and other proper directions in the
performance of his official functions.
Sec. 105.207 Politically motivated activities with respect to the
Minority Small Business Program.
(a) Any employee who has authority to take, direct others to take,
recommend, or approve any action with respect to any program or
activity conducted pursuant to section 8(a) or section 7(j) of the
Small Business Act, shall not, with respect to any such action,
exercise or threaten to exercise such authority on the basis of the
political activity or affiliation of any party. Employees shall
expeditiously report to the SBA Inspector General any such action for
which such employee's participation has been solicited or directed.
(b) Any employee who willfully and knowingly violates this section
shall be subject to disciplinary action, which may consist of
separation from service, reduction in grade, suspension, or reprimand.
(c) This section shall not apply to any action taken as a penalty
or other enforcement of a violation of any law, rule, or regulation
prohibiting or restricting political activity.
(d) The prohibitions in and remedial measures provided for under
this section with regard to such prohibitions, shall be in addition to,
and not in lieu of, any other prohibitions, measures or liabilities
that may arise under any other provision of law.
Sec. 105.208 Penalties.
Any employee guilty of violating any of the provisions in this Part
may be disciplined, including removal or suspension from SBA
employment.
Restrictions on SBA Assistance to Other Individuals
Sec. 105.301 Assistance to officers or employees of other Government
organizations.
(a) SBA must receive a written statement of no objection by the
pertinent Department or military service before it gives any SBA
Assistance, other than Disaster loans under subparagraphs (1) and (2)
of section 7(b) of the Small Business Act, to a person when its sole
proprietor, partner, officer, director or stockholder with a 10 percent
or more interest, or a household member, is an employee of another
Government Department or Agency having a grade of at least GS-13 or its
equivalent.
(b) The Standards of Conduct Committee must approve an SBA contract
with an entity if a sole proprietor, general partner, officer,
director, or stockholder with a 10 or more percent interest (or a
household member of such individuals) is an employee of a Government
Department or Agency. See also 48 CFR part 35, subpart 3.6.
(c) The Standards of Conduct Committee must approve SBA Assistance,
other than disaster loans under subparagraphs (1) and (2) of section
7(b) of the Small Business Act, to a person if its sole proprietor,
general partner, officer, director or stockholder with a 10 percent or
more interest (or a household member of such individual) is a member of
Congress or an appointed official or employee of the legislative or
judicial branch of the Government.
Sec. 105.302 Assistance to employees or members of quasi-Government
organizations.
(a) The Standards of Conduct Committee must approve SBA Assistance,
other than Disaster loans under subparagraphs (1) and (2) of section
7(b) of the Small Business Act, to a person if its sole proprietor,
general partner, officer, director or stockholder with a 10 percent or
more interest (or a household member) is a member or employee of a
Small Business Advisory Council or is a SCORE volunteer.
(b) In reviewing requests for approval, factors the Standards of
Conduct Committee may consider include whether the granting of the SBA
Assistance might result in or create the appearance of giving
preferential treatment, the loss of complete independence or
impartiality, or adversely affect the confidence of the public in the
integrity of the Government.
Administrative Provisions
Sec. 105.401 Standards of Conduct Committee.
(a) The Standards of Conduct Committee will:
(1) Advise and give direction to SBA management officials
concerning the administration of this Part and any other rules,
regulations or directives dealing with conflicts of interest and
ethical standards of SBA employees; and
(2) Make decisions on specific requests when its approval is
required.
(b) The Standards of Conduct Committee will consist of:
(1) The General Counsel or, in his or her absence, the Deputy
General Counsel or, in his or her absence, the Acting General Counsel
who shall act as Chairman of the Committee;
(2) The Associate Deputy Administrator for Management and
Administration, or in his or her absence, the Assistant Administrator
for Administration; and
(3) The Director of Human Resources, or in his or her absence, the
Deputy Director of Human Resources.
Sec. 105.402 Standards of Conduct Counselors.
(a) The SBA Standards of Conduct Counselor is the Deputy General
Counsel. The Associate General Counsel for General Law (AGC) is an
Assistant Standards of Conduct Counselor, and other Assistants may be
designated by the Standards of Conduct Counselor.
(b) The Standards of Conduct Counselors and Assistants:
(1) Provide general advice, assistance and guidance to employees
concerning this Part and the regulations referred to in Sec. 105.101;
(2) Monitor the Standards of Conduct Program within their assigned
areas and provide required reports thereon;
(3) Review Confidential Financial Disclosure Reports as required
under 5 CFR part 2634, subpart I, and provide an annual report on
compliance with filing requirements to the SBA Standards of Conduct
Counselor as of February 1 of each year; and
(4) Provide Outside Employment decisions pursuant to 5 CFR
5401.104.
(c) Each employee will be periodically informed of the name,
address and telephone number of the Assistant Standards of Conduct
Counselor to contact for advice and assistance.
(d) Employee requests for advice or rulings should be directed to
the appropriate Standards of Conduct Counselor for appropriate action.
Sec. 105.403 Designated Agency Ethics Officials.
(a) The Designated Agency Ethics Official, pursuant to the Ethics
in Government Act of 1978 (5 U.S.C. App.), is the Deputy General
Counsel. He or she may, in turn, appoint one or more Alternate
Designated Agency Ethics Officials. The Alternates will assist the
Designated Agency Ethics Official and act for him or her whenever
absent.
(b) The Designated Agency Ethics Official and Alternates administer
the program for Financial Disclosure Statements under 5 CFR 2634.201,
[[Page 2401]]
receive and evaluate these statements, and provide advice and counsel
regarding matters relating to the Ethics in Government Act of 1978 and
its implementing regulations. The duties and responsibilities of the
Designated Agency Ethics Official and Alternates are set forth in more
detail in 5 CFR 2638.203, which is promulgated and amended by the
Office of Government Ethics.
Dated: January 19, 1996.
Philip Lader,
Administrator.
[FR Doc. 96-1161 Filed 1-25-96; 8:45 am]
BILLING CODE 8025-01-P
Complete official Federal Register PDF
FR Doc. 96-1160 Policies of General Application
[Federal Register Volume 61, Number 18 (Friday, January 26, 1996)]
[Rules and Regulations]
[Pages 2401-2403]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-1160]
-----------------------------------------------------------------------
SMALL BUSINESS ADMINISTRATION
13 CFR Part 114
Policies of General Application
AGENCY: Small Business Administration.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: In response to President Clinton's regulatory review
directive, the Small Business Administration has completed a page-by-
page and line-by-line review of its regulations. As a result, SBA is
clarifying and streamlining its regulations, revising or eliminating
any duplicative, outdated, inconsistent or confusing provisions. This
final rule reorganizes the entire Part 114 covering administrative
claims under the Federal Tort Claims Act to make it clearer and easier
to use. It also amends the Part to streamline the review and adjustment
of claims and provide for the use of nonbinding alternative dispute
resolution in appropriate cases.
EFFECTIVE DATE: This rule is effective February 26, 1996.
FOR FURTHER INFORMATION CONTACT: Jeff Lane, Office of General Counsel,
at (202) 205-6879.
SUPPLEMENTARY INFORMATION: Part 114 of chapter I, 13 CFR contains
policies governing the presentment, review and handling of
administrative claims brought against the Federal Government for money
damages for injuries or death arising from the negligent or wrongful
act or omission of any employee of the Small Business Administration.
The rule reorganizes the entire Part 114 to make it clearer and easier
to use and amends it to create a more efficient administrative process.
It eliminates from the process the various boards of survey that now
investigate and review claims, and gives District Counsel authority to
review and deny claims of $5,000 or less and use nonbinding alternative
dispute resolution in appropriate cases. (Boards of Survey would retain
all other existing responsibilities.)
The proposed rule was published on November 3, 1995, at 60 FR
55808. The SBA received four comments on the proposed rule during the
thirty-day comment period. Two comments questioned generally the need
for revisions in the existing rule. As indicated, SBA has revised and
reorganized the rule to streamline its operation and make it more
understandable to employees and others who may be affected by it. One
of those two comments supported the proposal to eliminate the boards of
survey from the review process, but stated that employees should not
enjoy the benefits of the attorney-client privilege. With regard to
this latter point, this final rule makes no substantive change in the
longstanding SBA policy applying the attorney-client privilege in cases
where Government legal representation is authorized for employees.
Finally, two commenters suggested changes in section 114.105 that are
adopted in the final rule. Section 114.105(b) now makes clear that any
alternative dispute resolution mechanisms must be nonbinding, and
Sec. 114.105(c) is clarified to state that District Counsel have
authority to deny claims under $5,000, but may only recommend their
approval. In addition to this clarification in proposed section
114.105(c) in response to comments, SBA includes in the final rule an
administrative change: the recommendation for approval will be made by
District Counsel to the General Counsel or designee, not to the Senior
Area Counsel.
Compliance With Executive Orders 12612, 12778, and 12866, the
Regulatory Flexibility Act (5 U.S.C. 601, et seq.), and the Paperwork
Reduction Act (44 U.S.C. Ch. 35)
SBA certifies that this rule involves internal administrative
procedures and is not a significant rule within the meaning of
Executive Order 12866 and will not have a significant economic impact
on a substantial number of small entities within the meaning of the
Regulatory Flexibility Act, 5 U.S.C. 601, et seq. It is not likely to
have an annual economic effect of $100 million or more, result in a
major increase in costs or prices, or have a significant adverse effect
on competition or the United States economy.
For purposes of the Paperwork Reduction Act, 44 U.S.C. Ch. 35, SBA
certifies that this rule contains no new reporting or recordkeeping
requirements.
For purposes of Executive Order 12612, SBA certifies that this rule
does not have any federalism implications warranting the preparation of
a Federalism Assessment.
For purposes of Executive Order 12778, SBA certifies that this rule
is drafted, to the extent practicable, in accordance with the standards
set forth in Section 2 of that Order.
List of Subjects in 13 CFR Part 114
Claims.
Accordingly, pursuant to the authority set forth in sections
5(b)(1) and (b)(6) of the Small Business Act, 15 U.S.C. 634(b)(1) and
(b)(6), 28 U.S.C. 2672, and 28 CFR 14.11 (31 FR 16616), SBA revises
part 114 of Title 13, Code of Federal Regulations (CFR), to read as
follows:
PART 114--ADMINISTRATIVE CLAIMS UNDER THE FEDERAL TORT CLAIMS ACT
AND REPRESENTATION AND INDEMNIFICATION OF SBA EMPLOYEES
Subpart A--Administrative Tort Claims
Sec.
114.100 Definitions.
114.101 What do these regulations cover?
114.102 When and where do I present a claim?
114.103 Who may file a claim?
114.104 What evidence and information may SBA require relating to
my claim?
114.105 Who investigates and considers my claim?
114.106 What if my claim exceeds $5,000?
114.107 What if my claim exceeds $25,000 or has other special
features?
114.108 What if my claim is approved?
114.109 What if my claim is denied?
Subpart B--Representation and Indemnification of SBA Employees
114.110 What is SBA's policy with respect to indemnifying and
providing legal representation to SBA employees?
114.111 Does the attorney-client privilege apply when SBA employees
are represented by the Government?
Authority: 15 U.S.C. 634 (b)(1), (b)(6); 28 U.S.C. 2672; 28 CFR
14.11.
Subpart A--Administrative Tort Claims
Sec. 114.100 Definitions.
As used throughout this Part 114, date of accrual means the date
you know or reasonably should have known of your injury. The date of
accrual will depend on the facts of each case. Site means the
geographic location where the incident giving rise to your claim
occurred.
Sec. 114.101 What do these regulations cover?
This part applies only to monetary claims you assert under the
Federal Tort Claims Act, 28 U.S.C. 2671 et seq., for
[[Page 2402]]
injury to or loss of property, personal injury, or death arising from
the negligent or wrongful act or omission of any SBA employee acting
within the scope of his or her employment.
Sec. 114.102 When and where do I present a claim?
You must present your claim within two years of the date of accrual
at the SBA District Office nearest to the site and within the same
state as the site. You must use an official form obtained from SBA or
give other written notice of your claim, stating the specific amount of
your alleged damages and providing enough information to enable SBA to
investigate your claim. Your claim will be considered presented when
SBA receives this information.
Sec. 114.103 Who may file a claim?
(a) If a claim is based on factors listed in the first column, then
it may be presented by persons listed in the second column.
------------------------------------------------------------------------
Claim factors Claim presenters
------------------------------------------------------------------------
Injury to or loss of property............. The owner of the property,
his or her duly authorized
agent, or legal
representative.
Personal injury........................... The injured person, his or
her duly authorized agent,
or legal representative.
Death..................................... The executor, administrator,
or legal representative of
the decedent's estate, or
any other person entitled
to assert the claim under
applicable state law.
Loss wholly compensated by an insurer with The parties individually, as
rights as a subrogee. their interests appear, or
jointly.
------------------------------------------------------------------------
(b) An agent or legal representative may present your claim in your
name, but must sign the claim, state his or her title or legal
capacity, and include documentation of authority to present the claim
on your behalf.
Sec. 114.104 What evidence and information may SBA require relating to
my claim?
(a) For a claim based on injury to or loss of property:
(1) Proof you own the property.
(2) A specific statement of the damage you claim with respect to
each item of property.
(3) Itemized receipts for payment for necessary repairs or itemized
written estimates of the cost of such repairs.
(4) A statement listing date of purchase, purchase price and
salvage value, where repair is not economical.
(5) Full information about potential insurance coverage and any
insurance claims or payments relating to your claim.
(6) Any other information that may be relevant to the government's
alleged liability or the damages you claim.
(b) For a claim based on personal injury, including pain and
suffering:
(1) A written report from your health care provider stating the
nature and extent of your injury and treatment, the degree of your
temporary or permanent disability, your prognosis, period of
hospitalization, and any diminished earning capacity.
(2) A written report following a physical, dental or mental
examination of you by a physician employed by SBA or another Federal
Agency. If you want a copy of this report, you must request it in
writing, furnish SBA with the written report of your health care
provider, if SBA requests it, and make or agree to make available to
SBA any other medical reports relevant to your claim.
(3) Itemized bills for medical, dental and hospital expenses you
have incurred, or itemized receipts of payment for these expenses.
(4) Your health care provider's written statement of the expected
expenses related to any necessary future treatment.
(5) A statement from your employer showing actual time lost from
employment, whether you are a full or part-time employee, and the wages
or salary you actually lost.
(6) Documentary evidence showing the amount of earnings you
actually lost if you are self-employed.
(7) Information about the existence of insurance coverage and any
insurance claims or payments relating to the claim in question.
(8) Any other information that may be relevant to the government's
alleged liability or the damages you claim.
(c) For a claim based on death:
(1) An authenticated death certificate or other competent evidence
showing cause of death, date of death, and age of the decedent.
(2) Evidence of decedent's employment or occupation at the time of
death, including monthly or yearly salary or earnings, and the duration
of such employment or occupation.
(3) Full names, addresses, birth dates, kinship, and marital status
of the decedent's survivors, including identification of those
survivors who were dependent upon the decedent for support at the time
of his or her death.
(4) Evidence of the support provided by the decedent to each
dependent survivor at the time of his or her death.
(5) A summary of the decedent's general physical and mental
condition before death.
(6) Itemized bills or receipts for payments for medical and burial
expenses.
(7) For pain and suffering damage claims, a physician's detailed
statement specifying the injuries suffered, the duration of pain and
suffering, any drugs administered for pain, and the decedent's physical
condition in the interval between injury and death.
(8) Any other information that may be relevant to the government's
alleged liability or the damages claimed.
Sec. 114.105 Who investigates and considers my claim?
(a) SBA may investigate, or ask another Federal agency to
investigate, your claim. SBA also may request any Federal agency to
conduct a physical examination of you and provide a report to SBA. SBA
will reimburse the Federal agency for the costs of that examination
when authorized or required by statute or regulation.
(b) In those cases in which SBA investigates your claim, the SBA
District Counsel with jurisdiction over the site will conduct an
investigation and make recommendations or a determination with respect
to your claim. The District Counsel may negotiate with you and is
authorized to use alternative dispute resolution mechanisms (nonbinding
on SBA) when they may promote the prompt, fair and efficient resolution
of your claim.
(c) If your claim is for $5,000 or less, the District Counsel may
deny the claim, or may recommend approval, compromise, or settlement of
the claim to the General Counsel or designee, who may take final
action. The District Counsel first must refer the claim to SBA's
General Counsel or designee for review if SBA should consult with the
Department of Justice before approving the claim, as required under
Sec. 114.107.
Sec. 114.106 What if my claim exceeds $5,000?
The District Counsel must review and investigate your claim and
forward it with a report and recommendation to the General Counsel or
designee, who may approve or deny an award, compromise, or settlement
of claims in excess of $5,000, but not exceeding $25,000. The General
Counsel or designee will handle claims in excess of $25,000 as required
by Sec. 114.107.
[[Page 2403]]
Sec. 114.107 What if my claim exceeds $25,000 or has other special
features?
(a) The U.S. Attorney General or designee must approve in writing
any award, compromise, or settlement of a claim in excess of $25,000.
For this purpose, a principal claim and any derivative or subrogated
claim are considered a single claim.
(b) SBA must consult with the Department of Justice before
adjusting, determining, compromising, or settling a claim whenever the
General Counsel or designee determines:
(1) The claim involves a new precedent or a new point of law; or
(2) The claim involves or may involve a question of policy; or
(3) The United States is or may be entitled to indemnity or
contribution from a third party and SBA is unable to adjust the third
party claim; or
(4) Approval of a claim, as a practical matter, will or may control
the disposition of a related claim in which the amount to be paid may
exceed $25,000.
(c) SBA must consult with the Department of Justice before
adjusting, determining, compromising, or settling a claim whenever SBA
learns that the United States, or any of its employees, agents, or
cost-plus contractors, is involved in litigation based on a claim
arising out of the same incident or transaction.
(d) SBA, acting through its General Counsel or designee, must make
any referrals to the Department of Justice for approval or consultation
by transmitting them in writing to the Assistant Attorney General,
Civil Division.
(1) The referral must contain a short and concise statement of the
facts and the reason for the request or referral, copies of the
relevant portions of the claim file, and SBA's views and
recommendations.
(2) SBA may make this referral at any time after a claim is
presented.
Sec. 114.108 What if my claim is approved?
SBA will notify you in writing if it approves your claim. The
District Counsel will forward to you or your agent or legal
representative the forms necessary to indicate satisfaction of your
claim and your acceptance of the payment. Acceptance by you, your agent
or your legal representative, of any award, compromise or settlement of
your claim is final and conclusive under the Federal Tort Claims Act.
It binds you, your agent or your legal representative, and any other
person on whose behalf or for whose benefit the claim was presented. It
also constitutes a complete release of your claim against the United
States and its employees. If you are represented by counsel, SBA will
designate you and your counsel as joint payees and will deliver the
check to your counsel. Payment is contingent upon the waiver of your
claim and is subject to the availability of appropriated funds.
Sec. 114.109 What if my claim is denied?
SBA will notify you or your agent or legal representative in
writing by certified or registered mail if it denies your claim. You
have a right to file suit in an appropriate U.S. District Court not
later than six months after the date the notification was mailed.
Subpart B--Representation and Indemnification of SBA Employees
Sec. 114.110 What is SBA's policy with respect to indemnifying and
providing legal representation to SBA employees?
(a) If an SBA employee engages in conduct, within the scope of his
or her employment, which gives rise to a claim, and the SBA
Administrator or designee determines that any of the following actions
relating to the claim are in SBA's interest, SBA may:
(1) Indemnify the employee after a verdict, judgment, or other
monetary award is rendered personally against the employee in any civil
suit in state or federal court or any arbitration proceeding;
(2) Settle or compromise the claim; and/or
(3) Pay for, or request that the Department of Justice provide,
legal representation to the employee once personally named in such a
suit.
(b) If you are an SBA employee, you may ask SBA to settle or
compromise your claim, provide you with legal representation, or
provide you with indemnification for a verdict, judgment or award
entered against you in a suit. To do so, you must submit a timely,
written request to the General Counsel, with appropriate documentation,
including copies of any pleadings, verdict, judgment, award, or
settlement proposal. The General Counsel will decide all requests for
representation or settlement, and will forward to the Administrator,
with the accompanying documentation and a recommendation, any requests
for indemnification.
(c) Any payments by SBA under this section will be contingent upon
the availability of appropriated funds.
Sec. 114.111 Does the attorney-client privilege apply when SBA
employees are represented by the Government?
When attorneys employed by SBA participate in any process in which
SBA seeks to determine whether SBA should request the Department of
Justice to provide representation to an SBA employee sued, subpoenaed,
or charged in his or her individual capacity, or whether attorneys
employed by SBA should provide representational assistance for such an
employee, those attorneys undertake a full and traditional attorney-
client relationship with the employee with respect to the attorney-
client privilege. If representation is authorized, SBA attorneys who
assist in the representation of an SBA employee also undertake a full
and traditional attorney-client relationship with the employee with
respect to the attorney-client privilege. Unless authorized by the
employee, the attorney must not disclose to anyone other than attorneys
also responsible for the employee's representation information
communicated to the attorney by the client-employee during the course
of the attorney-client relationship. The attorney-client privilege will
continue with respect to that information whether or not representation
is provided, and even if the employee's representation is denied or
discontinued.
Dated: January 19, 1996.
Philip Lader,
Administrator.
[FR Doc. 96-1160 Filed 1-25-96; 8:45 am]
BILLING CODE 8025-01-P
Complete official Federal Register PDF
FR Doc. 96-1139 Federal Acquisition Regulation; Correction
[Federal Register Volume 61, Number 18 (Friday, January 26, 1996)]
[Rules and Regulations]
[Page 2454]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-1139]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF DEFENSE
GENERAL SERVICES ADMINISTRATION
NATIONAL AERONAUTICS AND SPACE ADMINISTRATION
48 CFR Parts 22 and 52
[Federal Acquisition Circular 90-36 Correction]
Federal Acquisition Regulation; Correction
AGENCIES: Department of Defense (DOD), General Services Administration
(GSA), and National Aeronautics and Space Administration (NASA).
ACTION: Correction.
-----------------------------------------------------------------------
SUMMARY: The Civilian Agency Acquisition Council and the Defense
Acquisition Regulations Council are issuing a correction to Federal
Acquisition Circular 90-36, FAR Case 95-304, ``Uruguay Round'',
published at 60 FR 67514, December 29, 1995.
EFFECTIVE DATE: January 1, 1996.
FOR FURTHER INFORMATION CONTACT:
Ms. Beverly Fayson at (202) 501-4755, General Services Administration,
FAR Secretariat, Washington, DC 20405. Please cite correction to FAC
90-36.
Correction
PART 52--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
52.225-15 [Corrected]
1. On page 67518, in the center column, third line from the top
following the word ``Trade'', the word ``Agreement'' should be
inserted.
Dated: January 19, 1996.
Jeremy F. Olson,
Acting Director, Office of Federal Acquisition Policy Division.
[FR Doc. 96-1139 Filed 1-25-96; 8:45 am]
BILLING CODE 6820-EP-M
Complete official Federal Register PDF
FR Doc. 96-1029 Federal Acquisition Regulation; Contractors' Purchasing Systems Reviews and Subcontractor Consent
[Federal Register Volume 61, Number 18 (Friday, January 26, 1996)]
[Rules and Regulations]
[Pages 2641-2642]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-1029]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF DEFENSE
DEPARTMENT OF DEFENSE
GENERAL SERVICES ADMINISTRATION
NATIONAL AERONAUTICS AND SPACE ADMINISTRATION
48 CFR Parts 44 and 52
[FAC 90-37; FAR Case 92-040; Item XV]
RIN 9000-AF82
Federal Acquisition Regulation; Contractors' Purchasing Systems
Reviews and Subcontractor Consent
AGENCIES: Department of Defense (DOD), General Services Administration
(GSA), and National Aeronautics and Space Administration (NASA).
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Civilian Agency Acquisition Council and the Defense
Acquisition Regulations Council have agreed on a final rule to amend
the Federal Acquisition Regulation (FAR) to increase the dollar
thresholds for the performance of Contractors' Purchasing Systems
Reviews (CPSR's) and the thresholds for subcontract consent. This
regulatory action was not subject to Office of Management and Budget
review under Executive Order 12866, dated September 30, 1993.
EFFECTIVE DATE: March 26, 1996.
FOR FURTHER INFORMATION CONTACT: Ms. Linda Klein at (202) 501-3775 in
reference to this FAR case. For general information, contact the FAR
Secretariat, Room 4037, GS Building, Washington, DC 20405 (202) 501-
4755. Please cite FAC 90-37, FAR case 92-040.
SUPPLEMENTARY INFORMATION:
A. Background
A proposed rule was published in the Federal Register at 59 FR
16393, April 6, 1994. The rule proposed to raise (1) the threshold for
performing CPSR's from $10 million to $25 million, and (2) in the
clause, Subcontracts (Cost-Reimbursement and Letter Contracts), (i) the
$10,000 threshold for notification to the contracting officer to
$25,000, and (ii) the $10,000 threshold requiring additional
information on certain subcontracts to $25,000. After evaluation of
public comments, the Councils agreed to a final rule without
[[Page 2642]]
change. As a result of internal review, it was determined that FAR
44.201-2(a)(1) should also be revised to reflect the higher threshold.
B. Regulatory Flexibility Act
The Department of Defense, the General Services Administration, and
the National Aeronautics and Space Administration certify that this
final 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., because the threshold increase will reduce the number of
contractors meeting the criteria for CPSR's and the number of small
businesses requesting consent to subcontract as a result of the
increased threshold will be minimal.
C. Paperwork Reduction Act
The Paperwork Reduction Act (Public Law 96-511) is deemed to apply
because the final rule contains information collection requirements.
Accordingly, a request for approval of a new information collection
requirement concerning 9000-0132 has been approved by the Office of
Management and Budget under 44 U.S.C. 3501, et seq., through June 30,
1997.
List of Subjects in 48 CFR Parts 44 and 52
Government procurement.
Dated: January 11, 1996.
Edward C. Loeb,
Acting Director, Office of Federal Acquisition Policy.
Therefore, 48 CFR parts 44 and 52 are amended as set forth below:
1. The authority citation for 48 CFR Parts 44 and 52 continues to
read as follows:
Authority: 40 U.S.C. 486(c); 10 U.S.C. chapter 137; and 42
U.S.C. 2473(c).
PART 44--SUBCONTRACTING POLICIES AND PROCEDURES
44.201-2 [Amended]
2. Section 44.201-2 is amended in paragraph (a)(1) by removing
``$10,000'' and inserting ``$25,000'' in its place.
44.302 [Amended]
3. Section 44.302 is amended in paragraph (a) by removing ``$10
million'' each time (twice) it appears and inserting ``$25 million''.
PART 52--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
52.244-2 [Amended]
4. Section 52.244-2 is amended by revising the date of the clause
heading to read ``(MAR 1996)''; and by removing from paragraphs (a)(4)
and (b)(1)(i) ``$10,000'' and inserting ``$25,000''.
[FR Doc. 96-1029 Filed 1-25-96; 8:45 am]
BILLING CODE 6820-EP-M
Complete official Federal Register PDF
FR Doc. 96-1028 Federal Acquisition Regulation; Nonallowability of Excise Taxes on Nondeductible Contributions to Deferred Compensation Plans
[Federal Register Volume 61, Number 18 (Friday, January 26, 1996)]
[Rules and Regulations]
[Pages 2640-2641]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-1028]
=======================================================================
-----------------------------------------------------------------------
[[Page 2641]]
DEPARTMENT OF DEFENSE
DEPARTMENT OF DEFENSE
GENERAL SERVICES ADMINISTRATION
NATIONAL AERONAUTICS AND SPACE ADMINISTRATION
48 CFR Part 31
[FAC 90-37; FAR Case 92-604; Item XIV]
RIN 9000-AF85
Federal Acquisition Regulation; Nonallowability of Excise Taxes
on Nondeductible Contributions to Deferred Compensation Plans
AGENCIES: Department of Defense (DOD), General Services Administration
(GSA), and National Aeronautics and Space Administration (NASA).
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Civilian Agency Acquisition Council and the Defense
Acquisition Regulations Council have agreed on a final rule to amend
the Federal Acquisition Regulation (FAR) by revising the cost principle
concerning taxes. This regulatory action was not subject to Office of
Management and Budget review under Executive Order 12866, dated
September 30, 1993.
EFFECTIVE DATE: March 26, 1996.
FOR FURTHER INFORMATION CONTACT:
Mr. Jeremy F. Olson at (202) 501-3221 in reference to this FAR case.
For general information, contact the FAR Secretariat, Room 4037, GS
Building, Washington, DC 20405 (202) 501-4755. Please cite FAC 90-37,
FAR case 92-604.
SUPPLEMENTARY INFORMATION:
A. Background
Under the current FAR 31.205-41(b)(6), excise taxes on accumulated
funding deficiencies or prohibited transactions involving employee
deferred compensation plans pursuant to sections 4971 and 4975 of the
Internal Revenue Code of 1954, as amended, are unallowable. This
reflects a long-standing Government policy that punitive-type excise
taxes are not reimbursable costs on Government contracts. Over the
years, subsequent legislation has added several new excise taxes to
subtitle D, chapter 43 of the Internal Revenue Service Code such that
the Code currently lists 13 such taxes. The Councils have agreed that
it is appropriate to revise FAR 31.205-41(b)(6) to insert a general
prohibition on all excise taxes found at subtitle D, chapter 43 of the
Internal Revenue Service Code. Such a general prohibition will ensure
that future legislative changes to subtitle D, chapter 43 of the
Internal Revenue Code will be automatically reflected in the cost
principle.
A proposed rule was published in the Federal Register at 59 FR
16393, April 6, 1994, with a request for comments. Three responses were
received. The Councils' analysis of those comments did not result in
any revisions to the proposed rule.
B. Regulatory Flexibility Act
The Department of Defense, the General Services Administration, and
the National Aeronautics and Space Administration certify that this
final 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., because most contracts awarded to small entities are
awarded on a competitive, fixed-price basis and the cost principles do
not apply.
C. Paperwork Reduction Act
The Paperwork Reduction Act does not apply because the changes to
the FAR do not impose recordkeeping or information collection
requirements, or collections of information from offerors, contractors,
or members of the public which require the approval of the Office of
Management and Budget under 55 U.S.C. 3501, et seq.
List of Subjects in 48 CFR Part 31
Government procurement.
Dated: January 11, 1996.
Edward C. Loeb,
Acting Director, Office of Federal Acquisition Policy.
Therefore, 48 CFR Part 31 is amended as set forth below:
PART 31--CONTRACT COST PRINCIPLES AND PROCEDURES
1. The authority citation for 48 CFR Part 31 continues to read as
follows:
Authority: 40 U.S.C. 486(c); 10 U.S.C. chapter 137; and 42
U.S.C. 2473(c).
2. Section 31.205-41 is amended by revising paragraph (b)(6) to
read as follows:
31.205-41 Taxes.
* * * * *
(b) * * *
(6) Any excise tax in subtitle D, chapter 43 of the Internal
Revenue Code of 1986, as amended. That chapter includes excise taxes
imposed in connection with qualified pension plans, welfare plans,
deferred compensation plans, or other similar types of plans.
* * * * *
[FR Doc. 96-1028 Filed 1-25-96; 8:45 am]
BILLING CODE 6820-EP-M
Complete official Federal Register PDF
FR Doc. 96-1027 Federal Acquisition Regulation; Availability of Accounting Guide
[Federal Register Volume 61, Number 18 (Friday, January 26, 1996)]
[Rules and Regulations]
[Page 2640]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-1027]
-----------------------------------------------------------------------
DEPARTMENT OF DEFENSE
GENERAL SERVICES ADMINISTRATION
NATIONAL AERONAUTICS AND SPACE ADMINISTRATION
48 CFR Part 31
[FAC 90-37; FAR Case 94-002; Item XIII]
RIN 9000-AG79
Federal Acquisition Regulation; Availability of Accounting Guide
AGENCIES: Department of Defense (DOD), General Services Administration
(GSA), and National Aeronautics and Space Administration (NASA).
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Civilian Agency Acquisition Council and the Defense
Acquisition Regulations Council have agreed on a final rule amending
the Federal Acquisition Regulation (FAR) to advise contractors on how
to obtain an informational accounting guide entitled ``Guidance for New
Contractors.'' This regulatory action was not subject to Office of
Management and Budget review under Executive Order 12866, dated
September 30, 1993.
EFFECTIVE DATE: March 26, 1996.
FOR FURTHER INFORMATION CONTACT:
Mr. Jeremy Olson at (202) 501-3221 in reference to this FAR case. For
general information, contact the FAR Secretariat, Room 4037, GS
Building, Washington, DC 20405 (202) 501-4755. Please cite FAC 90-37,
FAR case 94-002.
SUPPLEMENTARY INFORMATION:
A. Background
The final rule is the result of a recommendation by the Office of
Federal Procurement Policy SWAT Team that the FAR be revised to include
information on how contractors may obtain an accounting guide,
published by the Defense Contract Audit Agency, to assist in developing
contractors' accounting systems.
B. Regulatory Flexibility Act
The final rule does not constitute a significant FAR revision
within the meaning of FAR 1.501 and Public Law 98-577, and publication
for public comments is not required. Therefore, the Regulatory
Flexibility Act does not apply. However, comments from small entities
concerning the affected subpart will be considered in accordance with 5
U.S.C. 610. Such comments must be submitted separately and cite 5
U.S.C. 601, et seq. (FAC 90-37, FAR case 94-002), in correspondence.
C. Paperwork Reduction Act
The Paperwork Reduction Act does not apply because the changes to
the FAR do not impose recordkeeping or information collection
requirements, or collections of information from offerors, contractors,
or members of the public which require the approval of the Office of
Management and Budget under 44 U.S.C. 3501, et seq.
List of Subjects in 48 CFR Part 31
Government procurement.
Dated: January 11, 1996.
Edward C. Loeb,
Acting Director, Office of Federal Acquisition Policy.
Therefore, 48 CFR Part 31 is amended as set forth below:
PART 31--CONTRACT COST PRINCIPLES AND PROCEDURES
1. The authority citation for 48 CFR Part 31 continues to read as
follows:
Authority: 40 U.S.C. 486(c); 10 U.S.C. chapter 137; and 42
U.S.C. 2473(c).
2. Section 31.002 is added to read as follows:
31.002 Availability of accounting guide.
Contractors needing assistance in developing or improving their
accounting systems and procedures may request a copy of the guide
entitled ``Guidance for New Contractors'' (DCAAP 7641.90). The guide is
available from: Headquarters, Defense Contract Audit Agency, Operating
Administrative Office, 8725 John J. Kingman Road, Suite 2135, Fort
Belvoir, Virginia 22060-6219; Telephone No. (703) 767-1066; Telefax No.
(703) 767-1061.
[FR Doc. 96-1027 Filed 1-25-96; 8:45 am]
BILLING CODE 6820-EP-M
Complete official Federal Register PDF
FR Doc. 96-1026 Federal Acquisition Regulation; InsuranceLiability to Third Persons
[Federal Register Volume 61, Number 18 (Friday, January 26, 1996)]
[Rules and Regulations]
[Pages 2639-2640]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-1026]
DEPARTMENT OF DEFENSE
GENERAL SERVICES ADMINISTRATION
NATIONAL AERONAUTICS AND SPACE ADMINISTRATION
48 CFR Parts 28 and 52
[FAC 90-37; FAR Case 92-014; Item XII]
RIN 9000-AF78
Federal Acquisition Regulation; Insurance--Liability to Third
Persons
AGENCY: Department of Defense (DOD), General Services Administration
(GSA), and National Aeronautics and Space Administration (NASA).
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Civilian Agency Acquisition Council and the Defense
Acquisition Regulations Council have agreed on a final rule to amend
the Federal Acquisition Regulation (FAR) to delete a solicitation
provision and prescriptive language pertaining to liability insurance
under cost-reimbursement contracts. This regulatory action was not
subject to Office of Management and Budget review under Executive Order
12866, dated September 30, 1993.
EFFECTIVE DATE: March 26, 1996.
FOR FURTHER INFORMATION CONTACT:
Mr. Peter O'Such at (202) 501-1759 in reference to this FAR case. For
general information, contact the FAR Secretariat, Room 4037, GS
Building, Washington, DC 20405 (202) 501-4755. Please cite FAC 90-37,
FAR case 92-014.
SUPPLEMENTARY INFORMATION:
A. Background
The deleted FAR language applied only to cost-reimbursement
contracts for research and development awarded to state agencies or
charitable institutions that claim partial or total immunity from tort
liability. For these entities, Alternates I and II of 52.228-7,
Insurance--Liability to Third Persons, limit the contract's insurance
requirements and the Government's obligation to indemnify for third
party liability. A proposed rule was published in the Federal Register
at 59 FR 16392, April 6, 1994. No substantive comments were received in
response to the proposed rule.
B. Regulatory Flexibility Act
The Department of Defense, the General Services Administration, and
the National Aeronautics and Space Administration certify that this
final 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., because the FAR language being deleted applies only to
cost-reimbursement contracts for research and development that are
awarded to entities which, by virtue of their status as either an
agency of the state or as a charitable institution, claim partial or
total immunity from tort liability under such contracts. These entities
are believed to be few in number.
C. Paperwork Reduction Act
The Paperwork Reduction Act does not apply because the changes to
the FAR do not impose recordkeeping or information collection
requirements, or collections of information from offerors, contractors,
or members of the public which require the approval of the Office of
Management and Budget under 44 U.S.C. 3501, et seq.
List of Subjects in 48 CFR Parts 28 and 52
Government procurement.
Dated: January 11, 1996.
Edward C. Loeb,
Acting Director, Office of Federal Acquisition Policy.
Therefore, 48 CFR Parts 28 and 52 are amended as set forth below:
1. The authority citation for 48 CFR Parts 28 and 52 continues to
read as follows:
Authority: 40 U.S.C. 486(c); 10 U.S.C. chapter 137; and 42
U.S.C. 2473(c).
PART 28--BONDS AND INSURANCE
28.311-1 [Removed]
28.311-2 and 28.311-3 [28.311-2, 28.311-3 Redesignated as 28.311-1,
28.311-2]
2. Section 28.311-1 is removed and sections 28.311-2 and 28.311-3
are redesignated as 28.311-1 and 28.311-2, respectively.
28.311-1 [Amended]
3. The newly designated 28.311-1 is amended by removing the last
two sentences.
PART 52--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
52.228-6 [Removed and reserved]
4. Section 52.228-6 is removed and reserved.
5. Section 52.228-7 is amended in the introductory paragraph by
removing the citation ``28.311-2'' and inserting ``28.311-1''; by
revising the date of the clause heading; by revising paragraphs
[[Page 2640]]
(a)(1) and (c) introductory text; and by removing Alternates I and II.
The revised text reads as follows:
52.228-7 Insurance--Liability to Third Persons.
* * * * *
Insurance--Liability to Third Persons (Marcg 1996)
(a)(1) Except as provided in subparagraph (a)(2) of this clause,
the Contractor shall provide and maintain workers' compensation,
employer's liability, comprehensive general liability (bodily
injury), comprehensive automobile liability (bodily injury and
property damage) insurance, and such other insurance as the
Contracting Officer may require under this contract.
* * * * *
(c) The Contractor shall be reimbursed--
* * * * *
6. Section 52.245-7 is amended by revising the date of the clause
and the first sentence of paragraph (j) to read as follows:
52.245-7 Government Property (Consolidated Facilities).
* * * * *
Government Property (Consolidated Facilities March 1996)
* * * * *
(j) Indemnification of the Government. The Contractor shall
indemnify the Government and hold it harmless against claims for
injury to persons or damage to property of the Contractor or others
arising from the Contractor's possession or use of the facilities,
except as specified in the clause at FAR 52.228-7, Insurance--
Liability to Third Persons.* * *
* * * * *
7. Section 52.245-10 is amended by revising the date of the clause
and the first sentence of paragraph (f) to read as follows:
52.245-10 Government Property (Facilities Acquisition).
* * * * *
Government Property (Facilities Acquisition March 1996)
* * * * *
(f) Indemnification of the Government. The Contractor shall
indemnify the Government and hold it harmless against claims for
injury to persons or damage to property of the Contractor or others
arising from the Contractor's possession or use of the facilities,
except as specified in the clause at FAR 52.228-7, Insurance--
Liability to Third Persons.* * *
* * * * *
[FR Doc. 96-1026 Filed 1-25-96; 8:45 am]
BILLING CODE 6820-EP-M
Complete official Federal Register PDF
FR Doc. 96-1025 Federal Acquisition Regulation; Subcontracting Plans
[Federal Register Volume 61, Number 18 (Friday, January 26, 1996)]
[Rules and Regulations]
[Pages 2638-2639]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-1025]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF DEFENSE
DEPARTMENT OF DEFENSE
GENERAL SERVICES ADMINISTRATION
NATIONAL AERONAUTICS AND SPACE ADMINISTRATION
48 CFR Parts 19 and 52
[FAC 90-37; FAR Case 92-019; Item XI]
RIN 9000-AF45
Federal Acquisition Regulation; Subcontracting Plans
AGENCies: Department of Defense (DOD), General Services Administration
(GSA), and National Aeronautics and Space Administration (NASA).
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Civilian Agency Acquisition Council and the Defense
Acquisition Regulations Council have agreed to amend the Federal
Acquisition Regulation (FAR) to expand the circumstances when
subcontracting plans may be required from and negotiated with more than
the apparently successful offeror and to add a clause alternate for use
when subcontracting plans are required with initial proposals. This
regulatory action was not subject to Office of Management and Budget
review under Executive Order 12866, dated September 30, 1993.
EFFECTIVE DATE: March 26, 1996.
FOR FURTHER INFORMATION CONTACT:
Ms. Linda Klein at (202) 501-3775 in reference to this FAR case. For
general information, contact the FAR Secretariat, Room 4037, GS
Building, Washington, DC 20405 (202) 501-4755. Please cite FAC 90-37,
FAR case 92-019.
SUPPLEMENTARY INFORMATION:
A. Background
An amendment to FAR 19.705-2, 19.708, and 52.219-9 was published in
the Federal Register at 59 FR 16390, April 6, 1994, as a proposed rule
with a request for comments. Two responses were received. The Councils'
analysis of those comments did not result in any revisions to the
proposed rule.
B. Regulatory Flexibility Act
The Department of Defense, the General Services Administration, and
the National Aeronautics and Space Administration certify that this
final 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., because subcontracting plans are not required from small
business concerns.
C. Paperwork Reduction Act
The Paperwork Reduction Act (Public Law 96-511) is deemed to apply
because the final rule contains information collection requirements.
Accordingly, a request for approval of a revised information collection
requirement concerning 9000-0006 was submitted to the Office of
Management and Budget under 44 U.S.C. 3501, et seq., and approved
through March 31, 1998.
List of Subjects in 48 CFR Parts 19 and 52
Government procurement.
Dated: January 11, 1996.
Edward C. Loeb,
Acting Director, Office of Federal Acquisition Policy.
Therefore, 48 CFR Parts 19 and 52 are amended as set forth below:
1. The authority citation for 48 CFR Parts 19 and 52 continues to
read as follows:
Authority: 40 U.S.C. 486(c); 10 U.S.C. chapter 137; and 42
U.S.C. 2473(c).
PART 19--SMALL BUSINESS PROGRAMS
2. Section 19.705-2 is amended by revising paragraph (d) to read as
follows:
19.705-2 Determining the need for a subcontracting plan.
* * * * *
(d) In solicitations for negotiated acquisitions, the contracting
officer may require the submission of subcontracting plans with initial
offers, or at any other time prior to award. In determining when
subcontracting plans should be required, as well as when and
[[Page 2639]]
with whom plans should be negotiated, the contracting officer shall
consider the integrity of the competitive process, the goal of
affording maximum practicable opportunity for small, small
disadvantaged and women-owned small business concerns to participate,
and the burden placed on offerors.
3. Section 19.708 is amended in paragraph (b)(1)(iii) by revising
``has been'' to read ``is'' and by adding a sentence at the end of the
paragraph to read as follows:
19.708 Solicitation provisions and contract clauses.
* * * * *
(b)(1) * * *
(iii) * * * When contracting by negotiation, and subcontracting
plans are required with initial proposals as provided for in 19.705-
2(d), the contracting officer shall use the clause with its Alternate
II.
* * * * *
PART 52--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
4. Section 52.219-9 is amended by adding Alternate II at the end of
the section to read as follows:
52.219-9 Small, Small Disadvantaged, and Women-Owned Small Business
Subcontracting Plan.
* * * * *
Alternate II (MAR 1996). As prescribed in 19.708(b)(1),
substitute the following paragraph (c) for paragraph (c) of the
basic clause:
(c) Proposals submitted in response to this solicitation shall
include a subcontracting plan, which separately addresses
subcontracting with small business concerns, small disadvantaged
business concerns and women-owned small business concerns. If the
offeror is submitting an individual contract plan, the plan must
separately address subcontracting with small business concerns,
small disadvantaged business concerns and women-owned small business
concerns with a separate part for the basic contract and separate
parts for each option (if any). The plan shall be included in and
made a part of the resultant contract. The subcontracting plan shall
be negotiated within the time specified by the Contracting Officer.
Failure to submit and negotiate a subcontracting plan shall make the
offeror ineligible for award of a contract.
[FR Doc. 96-1025 Filed 1-25-96; 8:45 am]
BILLING CODE 6820-EP-M
Complete official Federal Register PDF
FR Doc. 96-1024 Federal Acquisition Regulation; Mentor Protege Program
[Federal Register Volume 61, Number 18 (Friday, January 26, 1996)]
[Rules and Regulations]
[Pages 2637-2638]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-1024]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF DEFENSE
GENERAL SERVICES ADMINISTRATION
NATIONAL AERONAUTICS AND SPACE ADMINISTRATION
48 CFR Parts 19 and 52
[FAC 90-37; FAR Case 93-308; Item X]
RIN 9000-AG70
Federal Acquisition Regulation; Mentor Protege Program
AGENCIES: Department of Defense (DOD), General Services Administration
(GSA), and National Aeronautics and Space Administration (NASA).
ACTION: Interim rule.
-----------------------------------------------------------------------
SUMMARY: The Civilian Agency Acquisition Council and the Defense
Acquisition Regulations Council have agreed to an interim rule to allow
mentor firms under the Department of Defense Pilot Mentor-Protege
Program to be granted credit toward subcontracting goals under small
business subcontracting plans entered into with any executive agency.
The rule also will permit mentor firms to award subcontracts on a
noncompetitive basis to protege firms under Department of Defense or
other contracts. This regulatory action was not subject to Office of
Management and Budget review under Executive Order 12866, dated
September 30, 1993.
DATES: Effective Date: January 26, 1996.
Comment Due Date: To be considered in the formulation of a final
rule, comments should be submitted to the address given below on or
before March 26, 1996.
ADDRESSES: Comments should be submitted to: General Services
Administration, FAR Secretariat, 18th & F Streets NW., Room 4037,
Washington, DC 20405.
FOR FURTHER INFORMATION CONTACT:
Ms. Linda Klein at (202) 501-3775 in reference to this FAR case. For
general information, contact the FAR Secretariat, Room 4037, GS
Building, Washington, DC 20405 (202) 501-4755. Please cite FAC 37, FAR
case 93-308.
SUPPLEMENTARY INFORMATION:
A. Background
This rule implements Section 814(c) of Public Law 102-190, which
amended the Small Business Act at 15 U.S.C. 637(d)(11) to authorize
certain costs incurred by a mentor firm under the Department of Defense
Mentor-Protege Program to be credited toward subcontracting goals for
awards to small disadvantaged businesses. This rule also further
implements Section 831(f)(2) of Public Law 101-510 which permits mentor
firms to award subcontracts on a noncompetitive basis to its proteges
under Department of Defense or other contracts.
B. Regulatory Flexibility Act
The interim rule is not expected to have significant economic
impact on a substantial number of small entities within the meaning of
the Regulatory Flexibility Act, 5 U.S.C. 601, et seq., because the
revisions apply to mentor firms under the DOD Pilot Mentor-Protege
Program, and these firms generally are not small entities. An Initial
Regulatory Flexibility Analysis has, therefore, not been performed.
Comments are invited from small businesses and other interested
parties. Comments from small entities concerning the affected FAR parts
will also be considered in accordance with 5 U.S.C. 610. Such comments
must be submitted separately and cite 5 U.S.C. 601, et seq. (FAC 90-
37, FAR case 93-308) in correspondence.
C. Paperwork Reduction Act
The Paperwork Reduction Act does not apply because the rule does
not impose any reporting or recordkeeping requirements which require
the approval of the Office of Management and Budget under 44 U.S.C.
3501, et seq.
D. Determination to Issue an Interim Rule
A determination has been made under authority of the Secretary of
Defense (DOD), the Administrator of General Services (GSA); and the
Administrator of the National Aeronautics and Space Administration
(NASA) that, pursuant to 41 U.S.C. 418b, urgent and compelling reasons
exist to publish an interim rule prior to affording the public an
opportunity to comment. However, public comments received in response
[[Page 2638]]
to this interim rule will be considered in formulating the final rule.
The rule is necessary to further implement Section 814(c) of Public Law
102-190, which amended the Small Business Act at 15 U.S.C. 637(d)(11)
to authorize certain costs incurred by a Department of Defense Mentor-
Protege Program firm to be credited toward subcontracting goals for
awards to small disadvantaged businesses, and Section 831(f)(2) of
Public Law 101-510 which permits mentor firms to award subcontracts on
a noncompetitive basis to its proteges under Department of Defense or
other contracts.
List of Subjects in 48 CFR Parts 19 and 52
Government procurement.
Dated: January 11, 1996.
Edward C. Loeb,
Acting Director, Office of Federal Acquisition Policy.
Therefore, 48 CFR Parts 19 and 52 are amended as set forth below:
1. The authority citation for 48 CFR Parts 19 and 52 continues to
read as follows:
Authority: 40 U.S.C. 486(c); 10 U.S.C. chapter 137; and 42
U.S.C. 2473(c).
PART 19--SMALL BUSINESS PROGRAMS
2. Section 19.702 is amended by adding paragraph (d) to read as
follows:
19.702 Statutory requirements.
* * * * *
(d) As authorized by 15 U.S.C. 637(d)(11), certain costs incurred
by a mentor firm in providing developmental assistance to a Protege
firm under the Department of Defense Pilot Mentor-Protege Program, may
be credited as subcontract awards to a small disadvantaged business for
the purpose of determining whether the mentor firm attains a small
disadvantaged business goal under any subcontracting plan entered into
with any executive agency. However, the mentor firms must have been
approved by the Office of Small and Disadvantaged Business Utilization,
Office of the Under Secretary of Defense for Acquisition and
Technology, OUSD (A&T)SADBU, Room 2A340, The Pentagon, Washington, DC
20301-3061, (703) 697-1688, before developmental assistance costs may
be credited against subcontract goals.
PART 52--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
3. 52.244-5 is amended by revising the clause to read as follows:
52.244-5 Competition in Subcontracting.
* * * * *
Competition in Subcontracting (Jan 1996)
(a) The Contractor shall select subcontractors (including
suppliers) on a competitive basis to the maximum practical extent
consistent with the objectives and requirements of the contract.
(b) If the Contractor is an approved mentor under the Department
of Defense Pilot Mentor-Protege Program (Pub. L. 101-510, section
831 as amended), the Contractor may award subcontracts under this
contract on a noncompetitive basis to its proteges.
(End of clause)
[FR Doc. 96-1024 Filed 1-25-96; 8:45 am]
BILLING CODE 6820-EP-M
Complete official Federal Register PDF
FR Doc. 96-1023 Federal Acquisition Regulation; SBA Responsibility, Certificate of Competency Requests
[Federal Register Volume 61, Number 18 (Friday, January 26, 1996)]
[Rules and Regulations]
[Pages 2636-2637]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-1023]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF DEFENSE
DEPARTMENT OF DEFENSE
GENERAL SERVICES ADMINISTRATION
NATIONAL AERONAUTICS AND SPACE ADMINISTRATION
48 CFR Part 19
[FAC 90-37; FAR Case 92-606; Item IX]
RIN 9000-AG78
Federal Acquisition Regulation; SBA Responsibility, Certificate
of Competency Requests
AGENCY: Department of Defense (DOD), General Services Administration
(GSA), and National Aeronautics and Space Administration (NASA).
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Civilian Agency Acquisition Council and the Defense
Acquisition Regulations Council have agreed on a final rule to amend
the Federal Acquisition Regulation (FAR) to reflect approval authority
of the Small Business Administration (SBA) regional offices to issue
Certificate of Competency (COC) Determinations as provided in 13 CFR
Part 125. This regulatory action was not subject to Office of
Management and Budget review under Executive Order 12866, dated
September 30, 1993.
[[Page 2637]]
EFFECTIVE DATE: March 26, 1996.
FOR FURTHER INFORMATION CONTACT:
Ms. Linda Klein at (202) 501-3775 in reference to this FAR case. For
general information, contact the FAR Secretariat, Room 4037, GS
Building, Washington, DC 20405, (202) 501-4755. Please cite FAC 90-37,
FAR case 92-606.
SUPPLEMENTARY INFORMATION:
A. Background
FAR 19.602-2(b)(3) currently requires that all COC requests over
$500,000 be forwarded to the SBA Central Office for a decision on
issuance. The issuance of COC's by the SBA is governed by 13 CFR Part
125, which authorizes regional SBA offices to issue COC's within their
delegated authority. This rule merely reflects existing internal SBA
procedures.
B. Regulatory Flexibility Act
This final rule does not constitute a significant FAR revision
within the meaning of FAR 1.501 and Public Law 98-577, and publication
for public comments is not required. Therefore, the Regulatory
Flexibility Act does not apply. However, comments from small entities
concerning the affected subpart will be considered in accordance with
Section 610 of the Act. Such comments must be submitted separately and
cite FAC 90-37, FAR case 92-606, in correspondence.
C. Paperwork Reduction Act
The Paperwork Reduction Act does not apply because the changes to
the FAR do not impose recordkeeping or information collection
requirements, or collections of information from offerors, contractors,
or members of the public which require the approval of OMB under 44
U.S.C. 3501, et seq.
List of Subjects in 48 CFR Part 19
Government procurement.
Dated: January 11, 1996.
Edward C. Loeb,
Acting Director, Office of Federal Acquisition Policy.
Therefore, 48 CFR Part 19 is amended as set forth below:
PART 19--SMALL BUSINESS PROGRAMS
1. The authority citation for 48 CFR Part 19 continues to read as
follows:
Authority: 40 U.S.C. 486(c); 10 U.S.C. chapter 137; and 42
U.S.C. 2473(c).
2. Section 19.602-2 is amended as follows:
(a) The paragraph designation ``(a)'' is removed;
(b) Paragraph (b) is removed;
(c) Paragraph (c) is redesignated as (d) and revised; and
(d) Paragraphs (a)(1) through (a)(3) are redesignated as (a), (b),
and (c), respectively.
19.602-2 Issuing or denying a certificate of competency (COC).
* * * * *
(d) Notify the concern and the contracting officer that the COC is
denied or is being issued.
[FR Doc. 96-1023 Filed 1-25-96; 8:45 am]
BILLING CODE 6820-EP-M
Complete official Federal Register PDF
FR Doc. 96-1022 Federal Acquisition Regulation; Overhead Should-Cost Reviews
[Federal Register Volume 61, Number 18 (Friday, January 26, 1996)]
[Rules and Regulations]
[Pages 2635-2636]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-1022]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF DEFENSE
GENERAL SERVICES ADMINISTRATION
NATIONAL AERONAUTICS AND SPACE ADMINISTRATION
48 CFR Part 15
[FAC 90-37; FAR Case 92-017; Item VIII]
RIN 9000-AF79
Federal Acquisition Regulation; Overhead Should-Cost Reviews
AGENCIES: Department of Defense (DOD), General Services Administration
(GSA), and National Aeronautics and Space Administration (NASA).
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Civilian Agency Acquisition Council and the Defense
Acquisition Regulations Council have agreed to amend the Federal
Acquisition Regulation (FAR) to add guidance on overhead should-cost
reviews. This regulatory action was not subject to Office of Management
and Budget review under Executive Order 12866, dated September 30,
1993.
EFFECTIVE DATE: March 26, 1996.
FOR FURTHER INFORMATION CONTACT:
Mr. Jeremy Olson at (202) 501-3221 in reference to this FAR case. For
general information, contact the FAR Secretariat, Room 4037, GS
Building, Washington, DC 20405, (202) 501-4755. Please cite FAC 90-37,
FAR case 92-017.
SUPPLEMENTARY INFORMATION:
A. Background
An amendment to FAR 15.810 was published in the Federal Register at
59 FR 16388, April 6, 1994, as a proposed rule with a request for
comments. Six responses were received. The Councils' analysis of those
comments did not result in any revisions to the proposed rule
previously published.
B. Regulatory Flexibility Act
The Department of Defense, the General Services Administration, and
the National Aeronautics and Space Administration certify that this
final 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., because contracts awarded to small entities rarely are
subject to program or overhead should-cost reviews.
C. Paperwork Reduction Act
The Paperwork Reduction Act does not apply because the changes to
the FAR do not impose recordkeeping or information collection
requirements, or collections of information from offerors, contractors,
or members of the public which require the approval of the Office of
Management and Budget under 44 U.S.C. 3501, et seq.
List of Subjects in 48 CFR Part 15
Government procurement.
Dated: January 11, 1996.
Edward C. Loeb,
Acting Director, Office of Federal Acquisition Policy.
Therefore, 48 CFR Part 15 is amended as set forth below:
PART 15--CONTRACTING BY NEGOTIATION
1. The authority citation for 48 CFR Part 15 continues to read as
follows:
Authority: 40 U.S.C. 486(c); 10 U.S.C. chapter 137; and 42
U.S.C. 2473(c).
2. Section 15.810 is revised to read as follows:
15.810 Should-cost review.
15.810-1 General.
(a) Should-cost reviews are a specialized form of cost analysis.
Should-cost reviews differ from traditional evaluation methods. During
traditional reviews, local contract audit
[[Page 2636]]
and contract administration personnel primarily base their evaluation
of forecasted costs on an analysis of historical costs and trends. In
contrast, should-cost reviews do not assume that a contractor's
historical costs reflect efficient and economical operation. Instead,
these reviews evaluate the economy and efficiency of the contractor's
existing work force, methods, materials, facilities, operating systems,
and management. These reviews are accomplished by a multi-functional
team of Government contracting, contract administration, pricing,
audit, and engineering representatives. The objective of should-cost
reviews is to promote both short and long-range improvements in the
contractor's economy and efficiency in order to reduce the cost of
performance of Government contracts. In addition, by providing
rationale for any recommendations and quantifying their impact on cost,
the Government will be better able to develop realistic objectives for
negotiation.
(b) There are two types of should-cost reviews--program should-cost
review (see 15.810-2) and overhead should-cost review (see 15.810-3).
These should-cost reviews may be performed together or independently.
The scope of a should-cost review can range from a large-scale review
examining the contractor's entire operation (including plant-wide
overhead and selected major subcontractors) to a small-scale tailored
review examining specific portions of a contractor's operation.
15.810-2 Program should-cost review.
(a) Program should-cost review is used to evaluate significant
elements of direct costs, such as material and labor, and associated
indirect costs, usually incurred in the production of major systems.
When a program should-cost review is conducted relative to a contractor
proposal, a separate audit report on the proposal is required.
(b) A program should-cost review should be considered, particularly
in the case of a major system acquisition (see part 34), when--
(1) Some initial production has already taken place;
(2) The contract will be awarded on a sole-source basis;
(3) There are future year production requirements for substantial
quantities of like items;
(4) The items being acquired have a history of increasing costs;
(5) The work is sufficiently defined to permit an effective
analysis and major changes are unlikely;
(6) Sufficient time is available to plan and conduct the should-
cost review adequately; and
(7) Personnel with the required skills are available or can be
assigned for the duration of the should-cost review.
(c) The contracting officer should decide which elements of the
contractor's operation have the greatest potential for cost savings and
assign the available personnel resources accordingly. While the
particular elements to be analyzed are a function of the contract work
task, elements such as manufacturing, pricing and accounting,
management and organization, and subcontract and vendor management are
normally reviewed in a should-cost review.
(d) In acquisitions for which a program should-cost review is
conducted, a separate program should-cost review team report, prepared
in accordance with agency procedures, is required. Field pricing
reports are required only to the extent that they contribute to the
combined team position. The contracting officer shall consider the
findings and recommendations contained in the program should-cost
review team report when negotiating the contract price. After
completing the negotiation, the contracting officer shall provide the
administrative contracting officer (ACO) a report of any identified
uneconomical or inefficient practices, together with a report of
correction or disposition agreements reached with the contractor. The
contracting officer shall establish a follow-up plan to monitor the
correction of the uneconomical or inefficient practices.
(e) When a program should-cost review is planned, the contracting
officer should state this fact in the acquisition plan (see subpart
7.1) and in the solicitation.
15.810-3 Overhead should-cost review.
(a) An overhead should-cost review is used to evaluate indirect
costs, such as fringe benefits, shipping and receiving, facilities and
equipment, depreciation, plant maintenance and security, taxes, and
general and administrative activities. It is normally used to evaluate
and negotiate a forward pricing rate agreement (FPRA) with the
contractor. When an overhead should-cost review is conducted, a
separate audit report is required.
(b) The following factors should be considered when selecting
contractor sites for overhead should-cost reviews:
(1) Dollar amount of Government business.
(2) Level of Government participation.
(3) Level of noncompetitive Government contracts.
(4) Volume of proposal activity.
(5) Major system or program.
(6) Mergers, acquisitions, takeovers.
(7) Other conditions, e.g., changes in accounting systems,
management, or business activity.
(c) The objective of the overhead should-cost review is to evaluate
significant indirect cost elements in-depth, identify inefficient and
uneconomical practices, and recommend corrective action. If it is
conducted in conjunction with a program should-cost review, a separate
overhead should-cost review report is not required. However, the
findings and recommendations of the overhead should-cost team, or any
separate overhead should-cost review report, shall be provided to the
ACO. The ACO should use this information to form the basis for the
Government position in negotiating a FPRA with the contractor. The ACO
shall establish a follow-up plan to monitor the correction of the
uneconomical or inefficient practices.
[FR Doc. 96-1022 Filed 1-25-96; 8:45 am]
BILLING CODE 6820-EP-M
Complete official Federal Register PDF
FR Doc. 96-1021 Federal Acquisition Regulation; Subcontract Proposal Audits
[Federal Register Volume 61, Number 18 (Friday, January 26, 1996)]
[Rules and Regulations]
[Pages 2634-2635]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-1021]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF DEFENSE
DEPARTMENT OF DEFENSE
GENERAL SERVICES ADMINISTRATION
NATIONAL AERONAUTICS AND SPACE ADMINISTRATION
48 CFR Part 15
[FAC 90-37; FAR Case 92-002; Item VII]
RIN 9000-AF74
Federal Acquisition Regulation; Subcontract Proposal Audits
AGENCIES: Department of Defense (DOD), General Services Administration
(GSA), and National Aeronautics and Space Administration (NASA).
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Civilian Agency Acquisition Council and the Defense
[[Page 2635]]
Acquisition Regulations Council have agreed on a final rule to amend
the Federal Acquisition Regulation (FAR) to add two additional examples
of when field pricing support audits of subcontract proposals may be
appropriate. This regulatory action was not subject to Office of
Management and Budget review under Executive Order 12866, dated
September 30, 1993.
EFFECTIVE DATE: March 26, 1996.
FOR FURTHER INFORMATION CONTACT:
Mr. Jeremy Olson, at (202) 501-3221 in reference to this FAR case. For
general information, contact the FAR Secretariat, Room 4037, GS
Building, Washington, DC 20405 (202) 501-4755. Please cite FAC 90-37,
FAR case 92-002.
SUPPLEMENTARY INFORMATION:
A. Background
An amendment to the FAR was published in the Federal Register at 59
FR 14457, March 28, 1994, as a proposed rule with a request for
comments. Three responses were received. Each supported the proposed
rule.
B. Regulatory Flexibility Act
The Department of Defense, the General Services Administration, and
the National Aeronautics and Space Administration certify that this
final 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., because most contracts awarded to small entities are
awarded on a competitive, fixed-price basis and certified cost or
pricing data and field pricing support are not required.
C. Paperwork Reduction Act
The Paperwork Reduction Act does not apply because the changes to
the FAR do not impose recordkeeping or information collection
requirements, or collections of information from offerors, contractors,
or members of the public which require the approval of the Office of
Management and Budget under 44 U.S.C. 3501, et seq.
List of Subjects in 48 CFR Part 15
Government procurement.
Dated: January 11, 1996.
Edward C. Loeb,
Acting Director, Office of Federal Acquisition Policy.
Therefore, 48 CFR Part 15 is amended as set forth below:
PART 15--CONTRACTING BY NEGOTIATION
1. The authority citation for 48 CFR Part 15 continues to read as
follows:
Authority; 40 U.S.C. 486(c); 10 U.S.C. chapter 137; and 42
U.S.C. 2473(c).
2. Section 15.806-3 is amended in paragraph (a)(3) by removing
``or''; in paragraph (a)(4) by removing the period and inserting a
semicolon; and by adding paragraphs (a) (5) and (6) to read as follows:
15.806-3 Field pricing reports.
(a) * * *
(5) The contractor or higher tier subcontractor has been cited for
having significant estimating system deficiencies in the area of
subcontract pricing, especially the failure to perform adequate cost
analyses of proposed subcontract costs or to perform subcontract
analyses prior to negotiation of the prime contract with the
Government; or
(6) A lower tier subcontractor has been cited as having significant
estimating system deficiencies.
* * * * *
[FR Doc. 96-1021 Filed 1-25-96; 8:45 am]
BILLING CODE 6820-EP-M
Complete official Federal Register PDF
FR Doc. 96-1020 Federal Acquisition Regulation; Field Pricing Support Request
[Federal Register Volume 61, Number 18 (Friday, January 26, 1996)]
[Rules and Regulations]
[Page 2634]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-1020]
DEPARTMENT OF DEFENSE
GENERAL SERVICES ADMINISTRATION
NATIONAL AERONAUTICS AND SPACE ADMINISTRATION
48 CFR Part 15
[FAC 90-37; FAR Case 95-006; Item VI]
RIN 9000-AG69
Federal Acquisition Regulation; Field Pricing Support Request
AGENCIES: Department of Defense (DOD), General Services Administration
(GSA), and National Aeronautics and Space Administration (NASA).
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Civilian Agency Acquisition Council and the Defense
Acquisition Regulations Council have agreed on a final rule to amend
the Federal Acquisition Regulation (FAR) to clarify internal Government
procedures for requesting field pricing support. This regulatory action
was not subject to Office of Management and Budget review under
Executive Order 12866, dated September 30, 1993.
EFFECTIVE DATE: March 26, 1996.
FOR FURTHER INFORMATION CONTACT:
Mr. Jeremy Olson at (202) 501-3221 in reference to this FAR case. For
general information, contact the FAR Secretariat, Room 4037, GS
Building, Washington, DC 20405 (202) 501-4755. Please cite FAC 90-37,
FAR case 95-006.
SUPPLEMENTARY INFORMATION:
A. Background
This final rule implements a recommendation of the Department of
Defense Procurement Process Reform Process Action Team. The rule
clarifies that contracting officers may send audit requests directly to
the cognizant audit office, if no other type of field pricing support
is required.
B. Regulatory Flexibility Act
The final rule does not constitute a significant FAR revision
within the meaning of FAR 1.501 and Public Law 98-577, and publication
for public comments is not required. Therefore, the Regulatory
Flexibility Act does not apply. However, comments from small entities
concerning the affected subpart will be considered in accordance with 5
U.S.C. 610. Such comments must be submitted separately and cite 5
U.S.C. 601, et seq. (FAC 90-37, FAR case 95-006), in correspondence.
C. Paperwork Reduction Act
The Paperwork Reduction Act does not apply because the changes to
the FAR do not impose recordkeeping or information collection
requirements, or collections of information from offerors, contractors,
or members of the public which require the approval of the Office of
Management and Budget under 44 U.S.C. 3501, et seq.
List of Subjects in 48 CFR Part 15
Government procurement.
Dated: January 11, 1996.
Edward C. Loeb,
Acting Director, Office of Federal Acquisition Policy.
Therefore, 48 CFR Part 15 is amended as set forth below:
PART 15--CONTRACTING BY NEGOTIATION
1. The authority citation for 48 CFR Part 15 continues to read as
follows:
Authority: 40 U.S.C. 486(c); 10 U.S.C. chapter 137; and 42
U.S.C. 2473(c).
2. Section 15.805-5 is amended in paragraph (c)(1) by revising the
second sentence to read as follows:
15.805-5 Field pricing support.
* * * * *
(c) * * *
(1) * * * If an audit is all that is needed, the contracting
officer may initiate an audit by sending the request directly to the
cognizant audit office. * * *
* * * * *
[FR Doc. 96-1020 Filed 1-25-96; 8:45 am]
BILLING CODE 6820-EP-M
Complete official Federal Register PDF
FR Doc. 96-1019 Federal Acquisition Regulation; Nonprofit Institutions Clause Prescription
[Federal Register Volume 61, Number 18 (Friday, January 26, 1996)]
[Rules and Regulations]
[Pages 2633-2634]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-1019]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF DEFENSE
GENERAL SERVICES ADMINISTRATION
NATIONAL AERONAUTICS AND SPACE ADMINISTRATION
48 CFR Parts 15 and 52
[FAC 90-37; FAR Case 92-010; Item V]
RIN 9000-AF77
Federal Acquisition Regulation; Nonprofit Institutions Clause
Prescription
AGENCIES: Department of Defense (DOD), General Services Administration
(GSA), and National Aeronautics and Space Administration (NASA).
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Civilian Agency Acquisition Council and the Defense
Acquisition Regulations Council have agreed on a final rule to amend
the Federal Acquisition Regulation (FAR). These changes revise the
prescriptions for use of the clauses, Termination of Defined Benefit
Pension Plans and Reversion or Adjustment of Plans for Postretirment
Benefits Other Than Pensions (PRB), and also clarifies the language of
the clauses. This regulatory action was not subject to Office of
Management and Budget review under Executive Order 12866, dated
September 30, 1993.
EFFECTIVE DATE: March 26, 1996.
FOR FURTHER INFORMATION CONTACT:
Mr. Jeremy Olson at (202) 501-3221 in reference to this FAR case. For
general information, contact the FAR Secretariat, Room 4037, GS
Building, Washington, DC 20405 (202) 501-4755. Please cite FAC 90-37,
FAR case 92-010.
SUPPLEMENTARY INFORMATION:
A. Background
The wording of the prescriptions at 15.804-8(e) and (f) currently
implies that the clauses at 52.215-27, Termination of Defined Benefit
Pension Plans, and 52.215-39, Reversion or Adjustment of Plans for
Postretirement Benefits Other Than Pensions, should also be used in
solicitions and contracts with noncommercial organizations. The clauses
refer to the cost principles applicable to commercial organizations in
FAR subpart 31.2, whereas OMB Circulars A-21, A-87 and A-122 contain
the cost principles governing contracts with noncommercial
organizations. In addition, the prescriptions currently contain
dissimilar criteria concerning the use of the clauses in preaward or
postaward cost situations. The revisions to the prescriptions at
15.804-8(e) and (f) correct these inconsistencies and clarify when the
clauses at 52.215-27 and 52.215-39 should be used. Additional revisions
to the clauses clarify the requirements specified in them. A proposed
rule was published in the Federal Register at 59 FR 16389, April 6,
1994. Three public comments were received. No changes were made as a
result of those comments.
B. Regulatory Flexibility Act
The Department of Defense, the General Services Administration, and
the National Aeronautics and Space Administration certify that this
final 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., because most contracts awarded to small businesses are
awarded on a competitive, fixed-price basis and the cost principles do
not apply. It is estimated that the number of contract actions awarded
to small businesses which require the submission of cost or pricing
data average less than 1 percent of the total number of small business
actions.
C. Paperwork Reduction Act
The Paperwork Reduction Act does not apply because the changes to
the FAR do not impose recordkeeping or information collection
requirements, or collections of information from offerors, contractors,
or members of the public which require the approval of the Office of
Management and Budget under 44 U.S.C. 3501, et seq.
List of Subjects in 48 CFR Parts 15 and 52
Government procurement.
Dated: January 11, 1996.
Edward C. Loeb,
Acting Director, Office of Federal Acquisition Policy.
Therefore, 48 CFR Parts 15 and 52 are amended as set forth below:
1. The authority citation for 48 CFR Parts 15 and 52 continue to
read as follows:
Authority: 40 U.S.C. 486(c); 10 U.S.C. chapter 137; and 42
U.S.C. 2473(c).
PART 15--CONTRACTING BY NEGOTIATION
2. Section 15.804-8 is amended by revising paragraphs (e) and (f);
and in paragraph (g) by removing the word ``certified''. The revised
text reads as follows:
15.804-8 Contract clauses and solicitation provisions.
* * * * *
(e) Termination of defined benefit pension plans. The contracting
officer shall insert the clause at 52.215-27, Termination of Defined
Benefit Pension Plans, in solicitations and contracts for which it is
anticipated that cost or pricing data will be required or for which any
preaward or postaward cost determinations will be subject to part 31.
(f) Postretirement benefit funds. The contracting officer shall
insert the clause at 52.215-39, Reversion or Adjustment of Plans for
Postretirement Benefits Other Than Pensions (PRB), in solicitations and
contracts for which it is anticipated that cost or pricing data will be
required or for which any preaward or postaward cost determination will
be subject to part 31.
* * * * *
[[Page 2634]]
PART 52--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
3. Section 52.215-27 is amended by revising the clause to read as
follows:
52.215-27 Termination of Defined Benefit Pension Plans.
* * * * *
Termination of Defined Benefit Pension Plans (Mar 1996)
The Contractor shall promptly notify the Contracting Officer in
writing when it determines that it will terminate a defined benefit
pension plan or otherwise recapture such pension fund assets. If
pension fund assets revert to the Contractor or are constructively
received by it under a termination or otherwise, the Contractor
shall make a refund or gift a credit to the Government for its
equitable share of the gross amount withdrawn. The Government's
equitable share shall reflect the Government's participation in
pension costs through those contracts for which cost or pricing data
(see 15.804 of the Federal Acquisition Regulation (FAR)) were
submitted or which are subject to FAR Part 31. The Contractor shall
include the substance of this clause in all subcontracts under this
contract which meets the applicability requirements of FAR 15.804-
8(e).
(End of clause)
4. Section 52.215-39 is amended by revising the clause to read as
follows:
52.215-39 Reversion or Adjustment of Plans for Postretirement Benefits
Other Than Pensions (PRB).
* * * * *
Reversion or Adjustment of Plans for Postretirement Benefits Other Than
Pensions (PRB) (Mar 1996)
The Contractor shall promptly notify the Contracting Officer in
writing when it determines that it will terminate or reduce a PRB
plan. If PRB fund assets revert, or inure, to the Contractor or are
constructively received by it under a plan termination, reduction,
or otherwise, the Contractor shall make a refund or give a credit to
the Government for its equitable share of any amount of previously
funded PRB costs which revert or inure to the Contractor. Such
equitable share shall reflect the Government's previous
participation in PRB costs through those contracts for which cost or
pricing data (see 15.804 of the Federal Acquisition Regulation
(FAR)) were submitted or which are subject to FAR Part 31. The
Contractor shall include the substance of this clause in all
subcontracts under this contract which meet the applicability
requirements of FAR 15.804-8(f).
(End of clause)
[FR Doc. 96-1019 Filed 1-25-96; 8:45 am]
BILLING CODE 6820-EP-M
Complete official Federal Register PDF
FR Doc. 96-1018 Federal Acquisition Regulation; Debarment and Suspension Certificate
[Federal Register Volume 61, Number 18 (Friday, January 26, 1996)]
[Rules and Regulations]
[Pages 2632-2633]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-1018]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF DEFENSE
DEPARTMENT OF DEFENSE
GENERAL SERVICES ADMINISTRATION
NATIONAL AERONAUTICS AND SPACE ADMINISTRATION
48 CFR Parts 9 and 52
[FAC 90-37; FAR Case 92-615; Item IV]
RIN 9000-AF57
Federal Acquisition Regulation; Debarment and Suspension
Certificate
AGENCIES: Department of Defense (DOD), General Services Administration
(GSA), and National Aeronautics and Space Administration (NASA).
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Civilian Agency Acquisition Council and the Defense
Acquisition Regulations Council have agreed on a final rule to amend
the Federal Acquisition Regulation (FAR) to add tax evasion as a cause
for consideration for suspension or debarment. This regulatory action
was not subject to Office of Management and Budget review under
Executive Order 12866, dated September 30, 1993.
EFFECTIVE DATE: March 26, 1996.
FOR FURTHER INFORMATION CONTACT:
Mr. Ralph De Stefano at (202) 501-1758 in reference to this FAR case.
For general information, contact the FAR Secretariat, Room 4037, GS
Building, Washington, DC 20405, (202) 501-4755. Please cite FAC 90-37,
FAR case 92-615.
SUPPLEMENTARY INFORMATION:
A. Background
The Twentieth Report by the Committee on Government Operations
entitled ``Coins, Contracting, and Chicanery: Treasury and Justice
Departments Fail to Coordinate'' dated May 27, 1992, among other
things, stated that there was a very real possibility that the U.S.
Government did business with a man indicted as being one of the biggest
tax evaders in history. In order to prevent this from happening in the
future, a revision to the FAR was proposed to address tax evasion.
A proposed rule was published in the Federal Register at 58 FR
63494 on December 1, 1993. Four sources submitted public comments. No
changes were made as a result of those comments.
B. Regulatory Flexibility Act
The Department of Defense, the General Services Administration, and
the National Aeronautics and Space Administration certify that this
final 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., because offerors already must certify whether they have
been convicted of or had a civil judgment rendered against them for a
list of offenses. This rule will add ``tax evasion'' to the existing
certification, as well as to the list of offenses for which contractors
may be suspended or debarred from Federal contracts.
C. Paperwork Reduction Act
The Paperwork Reduction Act does not apply because the changes to
the FAR do not impose recordkeeping or information collection
requirements, or collections of information from offerors, contractors,
or members of the public which require the approval of OMB under 44
U.S.C. 3501, et seq.
List of Subjects in 48 CFR Parts 9 and 52
Government procurement.
[[Page 2633]]
Dated: January 11, 1996.
Edward C. Loeb,
Acting Director, Office of Federal Acquisition Policy.
Therefore, 48 CFR Parts 9 and 52 are amended as set forth below:
1. The authority citation for 48 CFR Parts 9 and 52 continues to
read as follows:
Authority: 40 U.S.C. 486(c); 10 U.S.C. chapter 137; and 42
U.S.C. 2473(c).
PART 9--CONTRACTOR QUALIFICATIONS
9.406-2 [Amended]
2. Section 9.406-2 is amended in paragraph (a)(3) by inserting
``tax evasion,'' after ``false statements,''.
9.407-2 [Amended]
3. Section 9.407-2 is amended in paragraph (a)(3) by inserting
``tax evasion,'' after ``false statements,''.
PART 52--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
52.209-5 [Amended]
4. Section 52.209-5 is amended by revising the clause date to read
``(MAR 1996)''; and in paragraph (a)(1)(i)(B) by inserting ``tax
evasion,'' after ``false statements''.
52.212-3 [Amended]
5. Section 52.212-3 is amended by revising the date of the
provision to read ``(MAR 1996)''; and in paragraph (h)(2) by adding
``tax evasion,'' after ``false statements,''.
[FR Doc. 96-1018 Filed 1-25-96; 8:45 am]
BILLING CODE 6820-EP-M
Complete official Federal Register PDF
FR Doc. 96-1017 Federal Acquisition Regulation; Made in America Labels/Unfair Trade Practices
[Federal Register Volume 61, Number 18 (Friday, January 26, 1996)]
[Rules and Regulations]
[Pages 2631-2632]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-1017]
-----------------------------------------------------------------------
DEPARTMENT OF DEFENSE
GENERAL SERVICES ADMINISTRATION
NATIONAL AERONAUTICS AND SPACE ADMINISTRATION
48 CFR Part 9
[FAC 90-37; FAR Cases 93-301 and 93-306; Item III]
RIN 9000-AF40
Federal Acquisition Regulation; Made in America Labels/Unfair
Trade Practices
AGENCY: Department of Defense (DOD), General Services Administration
(GSA), and National Aeronautics and Space Administration (NASA).
ACTION: Interim rule adopted as final.
-----------------------------------------------------------------------
SUMMARY: The Civilian Agency Acquisition Council and the Defense
Acquisition Regulations Council have agreed on a final rule to amend
the Federal Acquisition Regulation (FAR) to implement sections 201 and
202 of the Defense Production Act. Section 201 directs that the FAR be
amended to address the responsibility of contractors who engage in
unfair trade practices as defined in section 201. Section 202 directs
that the FAR be amended to address the responsibility of persons that
intentionally affix a label bearing a fraudulent ``Made in America''
inscription to a product sold in or shipped to the United States. This
regulatory action was not subject to Office of Management and Budget
review under Executive Order 12866, dated September 30, 1993.
EFFECTIVE DATE: January 26, 1996.
FOR FURTHER INFORMATION CONTACT: Mr. Ralph De Stefano (202) 501-1758 in
reference to these combined FAR cases. For general information, contact
the FAR Secretariat, Room 4037, GS Building, Washington, DC 20405 (202)
501-4755. Please cite FAC 90-37, FAR cases 93-301 and 93-306.
SUPPLEMENTARY INFORMATION:
A. Background
This final rule implements the requirements of sections 201 and 202
of the Defense Production Act. Section 201 of the Defense Production
Act (Public Law 102-558) provides that any contractor who has engaged
in unfair trade practices may be found to lack such business integrity
to affect the contractor's responsibility to perform a Government
contract or subcontract. Section 201 defines ``unfair trade
[[Page 2632]]
practices'' as the commission by a contractor of any of the following
acts: (1) A violation of Section 337 of the Tariff Act of 1930 (19
U.S.C. 1337), as determined by the International Trade Commission (2) A
violation, as determined by the Secretary of Commerce, of any agreement
of the group known as the ``Coordination Committee'' for purposes of
the Export Administration Act of 1979 (50 U.S.C. App. 2401, et seq.) or
any similar bilateral or multilateral export control agreement, or (3)
A knowingly false statement regarding a material element of a
certification concerning the foreign content of an item of supply, as
determined by the Secretary of the Department or the head of the agency
to which such certificate was furnished. Section 201 mandates that this
statement of public contract law policy be implemented by amending FAR
subpart 9.4, not later than 270 days after the date of enactment of the
Defense Production Act (October 28, 1992).
Section 202 of the Defense Production Act (Public Law 102-558)
provides that any person determined to have intentionally affixed a
label bearing a ``Made in America'' inscription (or any inscription
having the same meaning) to a product sold in or shipped to the United
States, when such product was not made in the United States, may be
found to lack business integrity or business honesty to such a degree
as to affect their responsibility to perform a Federal contract or
subcontract. Section 202 mandates that this statement of policy be
implemented by amending FAR Subpart 9.4 (Debarment, Suspension, and
Ineligibility) not later than 270 days (July 28, 1993) after the date
of enactment of the Defense Production Act (October 28, 1992).
A combined interim rule was published in the Federal Register at 59
FR 11368 on March 10, 1994. Two sources submitted public comments. No
changes were made as a result of those comments.
B. Regulatory Flexibility Act
The Department of Defense, the General Services Administration, and
the National Aeronautics and Space Administration certify that this
final 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., because the rule only applies to entities who engage in
unfair trade practices or who intentionally affix fraudulent ``Made in
America'' labels to products sold in or shipped to the United States.
C. Paperwork Reduction Act
The Paperwork Reduction Act does not apply because the changes to
the FAR do not impose recordkeeping or information collection
requirements, or collections of information from offerors, contractors,
or members of the public which require the approval of the Office of
Management and Budget under 44 U.S.C. 3501, et seq.
List of Subjects in 48 CFR Part 9
Government procurement.
Dated: January 11, 1996.
Edward C. Loeb,
Acting Director, Office of Federal Acquisition Policy.
Interim Rule Adopted as Final Without Change
Accordingly, the interim rule amending 48 CFR part 9, which was
published at 59 FR 11371, March 10, 1994, (FAC 90-20, Item II) is
adopted as a final rule without change.
The authority citation for 48 CFR part 9 continues to read as
follows:
Authority: 40 U.S.C. 486(c); 10 U.S.C. chapter 137; and 42
U.S.C. 2473(c).
[FR Doc. 96-1017 Filed 1-25-96; 8:45 am]
BILLING CODE 6820-EP-M
Complete official Federal Register PDF
FR Doc. 96-1016 Federal Acquisition Regulation; Javits-Wagner-O'Day Program (JWOD)
[Federal Register Volume 61, Number 18 (Friday, January 26, 1996)]
[Rules and Regulations]
[Pages 2630-2631]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-1016]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF DEFENSE
DEPARTMENT OF DEFENSE
GENERAL SERVICES ADMINISTRATION
NATIONAL AERONAUTICS AND SPACE ADMINISTRATION
48 CFR Parts 8, 51, and 52
[FAC 90-37; FAR Case 91-108; Item II]
RIN 9000-AF71
Federal Acquisition Regulation; Javits-Wagner-O'Day Program
(JWOD)
AGENCIES: Department of Defense (DOD), General Services Administration
(GSA), and National Aeronautics and Space Administration (NASA).
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Civilian Agency Acquisition Council and the Defense
Acquisition Regulations Council have agreed on a final rule amending
the Federal Acquisition Regulation (FAR) to clarify that the
Government's obligation to purchase items from statutorily mandated
sources of supply also applies when contractors purchase items for
Government use. This regulatory action was not subject to Office of
Management and Budget review under Executive Order 12866, dated
September 30, 1993.
EFFECTIVE DATE: March 26, 1996.
FOR FURTHER INFORMATION CONTACT:
Ms. Linda Klein at (202) 501-3775 in reference to this FAR case. For
general information, contact the FAR Secretariat, Room 4037, GS
Building, Washington, DC 20405 (202) 501-4755. Please cite FAC 90-37,
FAR case 91-108.Q02
SUPPLEMENTARY INFORMATION:
A. Background
A proposed rule was published in the Federal Register at 59 FR
14454, March 28, 1994. The rule amended FAR Parts 8, 51, and 52 to
clarify that the statutory obligation for Government agencies to
purchase certain items from the Committee for Purchase from People Who
are Blind or Severely Disabled also applies when contractors purchase
items for Government use.
Five substantive comments from three sources were received during
the public comment period. Clarifying revisions have been made to
Secs. 51.101(c) and 52.208-9 of the rule as a result of the public
comments.
B. Regulatory Flexibility Act
The Department of Defense, the General Services Administration, and
the National Aeronautics and Space Administration certify that this
final 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., because it merely clarifies that contractors must
purchase certain items from the same statutorily mandated sources that
Government agencies are required to use, when a contractor is
performing an agency's supply function.
C. Paperwork Reduction Act
The Paperwork Reduction Act does not apply because the changes to
the FAR do not impose recordkeeping or information collection
requirements, or collections of information from offerors, contractors,
or members of the public which require the approval of OMB under 44
U.S.C. 3501, et seq.
List of Subjects in 48 CFR Parts 8, 51, and 52
Government procurement.
Dated: January 11, 1996.
Edward C. Loeb,
Acting Director, Office of Federal Acquisition Policy.
Therefore, 48 CFR parts 8, 51, and 52 are amended as set forth
below:
1. The authority citation for 48 CFR parts 8, 51, and 52 continues
to read as follows:
Authority: 40 U.S.C. 486(c); 10 U.S.C. chapter 137; and 42
U.S.C. 2473(c).
PART 8--REQUIRED SOURCES OF SUPPLIES AND SERVICES
2. Section 8.001 is amended by revising paragraphs (a)(2) (ii) and
(iii) and adding paragraph (c) to read as follows:
8.001 Priorities for use of Government supply sources.
(a) * * *
(2) * * *
(ii) Mandatory Federal Supply Schedules (see subpart 8.4);
(iii) Optional use Federal Supply Schedules (see subpart 8.4); and
* * * * *
(c) The statutory obligation for Government agencies to satisfy
their
[[Page 2631]]
requirements for supplies available from the Committee for Purchase
From People Who Are Blind or Severely Disabled also applies when
contractors purchase the supply items for Government use.
3. Section 8.003 is added to read as follows:
8.003 Contract clause.
The contracting officer shall insert the clause at 52.208-9,
Contractor Use of Mandatory Sources of Supply, in solicitations and
contracts which require a contractor to purchase supply items for
Government use that are available from the Committee for Purchase from
People Who Are Blind or Severely Disabled. The contracting officer
shall identify in the contract schedule the items which must be
purchased from a mandatory source and the specific source.
PART 51--USE OF GOVERNMENT SOURCES BY CONTRACTORS
4. Section 51.101 is amended by adding paragraph (c) to read as
follows:
51.101 Policy.
* * * * *
(c) Contracting officers shall authorize contractors purchasing
supply items for Government use that are available from the Committee
for Purchase from People Who Are Blind or Severely Disabled (see
subpart 8.7) to purchase such items from the Defense Logistics Agency
(DLA), the General Services Administration (GSA), and the Department of
Veterans Affairs (VA) if they are available from these agencies through
their distribution facilities. Mandatory supplies that are not
available from DLA/GSA/VA shall be ordered through the appropriate
central nonprofit agency (see 52.208-9(c)).
5. Section 51.102 is amended in the first sentence of the
introductory text of paragraph (a) by inserting after the word
``sources'' the phrase ``in accordance with 51.101 (a) or (b),'';
adding a new second sentence; and revising paragraph (c)(3) to read as
follows:
51.102 Authorization to use Government supply sources.
(a) * * * A written finding is not required when authorizing use of
the Government supply sources in accordance with 51.101(c). * * *
* * * * *
(c) * * *
(3) Approval for the contractor to use Department of Veterans
Affairs (VA) supply sources from the Deputy Assistant Secretary for
Acquisition and Materiel Management (Code 90), Office of Acquisition
and Materiel Management, Department of Veterans Affairs, 810 Vermont
Avenue, NW., Washington, DC 20420;
* * * * *
PART 52--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
6. Section 52.208-9 is added to read as follows:
52.208-9 Contractor Use of Mandatory Sources of Supply.
As prescribed in 8.003, insert the following clause:
Contractor Use Of Mandatory Sources Of Supply (Mar 1996)
(a) Certain supplies to be provided under this contract for use
by the Government are required by law to be obtained from the
Committee for Purchase from People Who Are Blind or Severely
Disabled (Javits-Wagner-O' Day Act (JWOD) (41 U.S.C. 48)).
Additionally, certain of these supplies are available from the
Defense Logistics Agency (DLA), the General Services Administration
(GSA), or the Department of Veterans Affairs (VA). The Contractor
shall obtain mandatory supplies to be provided for Government use
under this contract from the specific sources indicated in the
contract schedule.
(b) The Contractor shall immediately notify the Contracting
Officer if a mandatory source is unable to provide the supplies by
the time required, or if the quality of supplies provided by the
mandatory source is unsatisfactory. The Contractor shall not
purchase the supplies from other sources until the Contracting
Officer has notified the Contractor that the mandatory source has
authorized purchase from other sources.
(c) Price and delivery information for the mandatory supplies is
available from the Contracting Officer for the supplies obtained
through the DLA/GSA/VA distribution facilities. For mandatory
supplies that are not available from DLA/GSA/VA, price and delivery
information is available from the appropriate central nonprofit
agency. Payments shall be made directly to the source making
delivery. Points of contract for JWOD central nonprofit agencies
are:
(1) National Industries for the Blind (NIB) 1901 North Beauregard
Street, Suite 200 Alexandria, VA 22311-1705 (703) 998-0770
(2) NISH, 2235 Cedar Lane, Vienna, VA 22182-5200 (703) 560-6800
(End of clause)
[FR Doc. 96-1016 Filed 1-25-96; 8:45 am]
BILLING CODE 6820-EP-M
Complete official Federal Register PDF
FR Doc. 96-1015 Federal Acquisition Regulation; Inherently Governmental Functions
[Federal Register Volume 61, Number 18 (Friday, January 26, 1996)]
[Rules and Regulations]
[Pages 2627-2630]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-1015]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF DEFENSE
GENERAL SERVICES ADMINISTRATION
NATIONAL AERONAUTICS AND SPACE ADMINISTRATION
48 CFR Parts 7, 11, and 37
[FAC 90-37; FAR Case 92-051 Item I]
RIN 9000-AF56
Federal Acquisition Regulation; Inherently Governmental Functions
AGENCIES: Department of Defense (DOD), General Services Administration
(GSA), and National Aeronautics and Space Administration (NASA).
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Civilian Agency Acquisition Council and the Defense
Acquisition Regulations Council have agreed to revise the Federal
Acquisition Regulation (FAR) to implement Office of Federal Procurement
Policy (OFPP) Policy Letter 92-1, Inherently Governmental Functions.
This rule provides a definition of, and internal Government
responsibilities and procedures relating to, inherently governmental
functions. This regulatory action was not subject to Office of
Management and Budget review under Executive Order 12866, dated
September 30, 1993.
EFFECTIVE DATE: March 26, 1996.
FOR FURTHER INFORMATION CONTACT:
Mr. Peter O'Such (202) 501-1759 in reference to this FAR case. For
general information, contact the FAR Secretariat, Room 4037, GS
Building, Washington, DC 20405 (202) 501-4755. Please cite FAC 90-37,
FAR case 92-051.
SUPPLEMENTARY INFORMATION:
A. Background
This final rule implements the requirements of the Office of
Federal Procurement Policy (OFPP) Policy Letter 92-1, Inherently
Governmental Functions. The OFPP published its proposed policy letter
for public comment in the Federal Register at 56 FR 65279, December 16,
1991. OFPP evaluated public comments and published the final policy
letter in the Federal Register at 57 FR 45096, September 30, 1992.
A FAR proposed rule to implement the policy letter was published in
the Federal Register at 59 FAR 29696, June 8, 1994. Thirteen sources
submitted public comments. Minor revisions were made to the rule as a
result of those comments.
B. Regulatory Flexibility Act
The Department of Defense, the General Services Administration, and
the National Aeronautics and Space Administration certify that this
final 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., because the rule pertains to internal Government
responsibilities and procedures relating to inherently governmental
functions.
C. Paperwork Reduction Act
The Paperwork Reduction Act does not apply because the changes to
the FAR do not impose recordkeeping or information collection
requirements, or collections of information from offerors,
[[Page 2628]]
contractors, or members of the public which require the approval of the
Office of Management and Budget under 44 U.S.C. 3501, et seq.
List of Subjects in 48 CFR Part 7, 11, and 37
Government procurement.
Dated: January 11, 1996.
Edward C. Loeb,
Acting Director, Office of Federal Acquisition Policy.
Therefore, 49 CFR parts 7, 11, and 37 are amended as set forth
below:
The authority citation for 48 CFR parts 7, 11, and 37 continues to
read as follows:
Authority: 40 U.S.C. 486(c); 10 U.S.C. chapter 137; and 42
U.S.C. 2473(c).
PART 7--ACQUISITION PLANNING
2. Section 7.000 is amended in paragraph (b) by removing the word
``and''; in paragraph (c) by removing the period at the end of the
sentence and inserting in its place ``; and''; and by adding paragraph
(d) to read as follows:
Sec. 7.000 Scope of part.
* * * * *
(d) Determining whether functions are inherently governmental.
3. Section 7.103 is amended by adding paragraph (p) to read as
follows:
7.103 Agency-head responsibilities.
* * * * *
(p) Ensuring that no purchase request is initiated or contract
entered into that would result in the performance of an inherently
governmental function by a contractor and that all contracts are
adequately managed so as to ensure effective official control over
contract performance.
4. Section 7.105 is amended by redesignating paragraphs (b)(9)
through (b)(19) as (b)(10) through (b)(20) and adding a new (b)(9) to
read as follows:
7.105 Contents of written acquisition plans.
* * * * *
(b) * * *
(9) Inherently governmental functions. Address the consideration
given to OFPP Policy Letter 92-1 (see subpart 7.5).
5. Subpart 7.5 is added to read as follows:
Subpart 7.5--Inherently Governmental Functions
Sec.
7.500 Scope of subpart.
7.501 Definition.
7.502 Applicability.
7.503 Policy.
Subpart 7.5--Inherently Governmental Functions
7.500 Scope of subpart.
The purpose of this subpart is to prescribe policies and procedures
to ensure that inherently governmental functions are not performed by
contractors. It implements the policies of Office of Federal
Procurement Policy (OFPP) Policy Letter 92-1, Inherently Governmental
Functions.
7.501 Definition.
Inherently governmental function means, as a matter of policy, a
function that is so intimately related to the public interest as to
mandate performance by Government employees. This definition is a
policy determination, not a legal determination. An inherently
governmental function includes activities that require either the
exercise of discretion in applying Government authority, or the making
of value judgments in making decisions for the Government. Governmental
functions normally fall into two categories: the act of governing,
i.e., the discretionary exercise of Government authority, and monetary
transactions and entitlements.
(a) An inherently governmental function involves, among other
things, the interpretation and execution of the laws of the United
States so as to--
(1) Bind the United States to take or not to take some action by
contract, policy, regulation, authorization, order, or otherwise;
(2) Determine, protect, and advance United States economic,
political, territorial, property, or other interests by military or
diplomatic action, civil or criminal judicial proceedings, contract
management, or otherwise;
(3) Significantly affect the life, liberty, or property of private
persons;
(4) Commission, appoint, direct, or control officers or employees
of the United States; or
(5) Exert ultimate control over the acquisition, use, or
disposition of the property, real or personal, tangible or intangible,
of the United States, including the collection, control, or
disbursement of Federal funds.
(b) Inherently governmental functions do not normally include
gathering information for or providing advice, opinions,
recommendations, or ideas to Government officials. They also do not
include functions that are primarily ministerial and internal in
nature, such as building security, mail operations, operation of
cafeterias, housekeeping, facilities operations and maintenance,
warehouse operations, motor vehicle fleet management operations, or
other routine electrical or mechanical services. The list of commercial
activities included in the attachment to Office of Management and
Budget (OMB) Circular No. A-76 is an authoritative, nonexclusive list
of functions which are not inherently governmental functions.
7.502 Applicability.
The requirements of this subpart apply to all contracts for
services. This subpart does not apply to services obtained through
either personnel appointments, advisory committees, or personal
services contracts issued under statutory authority.
7.503 Policy.
(a) Contracts shall not be used for the performance of inherently
governmental functions.
(b) Agency decisions which determine whether a function is or is
not an inherently governmental function may be reviewed and modified by
appropriate Office of Management and Budget officials.
(c) The following is a list of examples of functions considered to
be inherently governmental functions or which shall be treated as such.
This list is not all inclusive:
(1) The direct conduct of criminal investigations.
(2) The control of prosecutions and performance of adjudicatory
functions other than those relating to arbitration or other methods of
alternative dispute resolution.
(3) The command of military forces, especially the leadership of
military personnel who are members of the combat, combat support, or
combat service support role.
(4) The conduct of foreign relations and the determination of
foreign policy.
(5) The determination of agency policy, such as determining the
content and application of regulations, among other things.
(6) The determination of Federal program priorities for budget
requests.
(7) The direction and control of Federal employees.
(8) The direction and control of intelligence and counter-
intelligence operations.
(9) The selection or non-selection of individuals for Federal
Government employment, including the interviewing of individuals for
employment.
(10) The approval of position descriptions and performance
standards for Federal employees.
(11) The determination of what Government property is to be
disposed of and on what terms (although an agency may give contractors
authority to dispose of property at prices within
[[Page 2629]]
specified ranges and subject to other reasonable conditions deemed
appropriate by the agency).
(12) In Federal procurement activities with respect to prime
contracts--
(i) Determining what supplies or services are to be acquired by the
Government (although an agency may give contractors authority to
acquire supplies at prices within specified ranges and subject to other
reasonable conditions deemed appropriate by the agency);
(ii) Participating as a voting member on any source selection
boards;
(iii) Approving any contractual documents, to include documents
defining requirements, incentive plans, and evaluation criteria;
(iv) Awarding contracts;
(v) Administering contracts (including ordering changes in contract
performance or contract quantities, taking action based on evaluations
of contractor performance, and accepting or rejecting contractor
products or services);
(vi) Terminating contracts;
(vii) Determining whether contract costs are reasonable, allocable,
and allowable; and
(viii) Participating as a voting member on performance evaluation
boards.
(13) The approval of agency responses to Freedom of Information Act
requests (other than routine responses that, because of statute,
regulation, or agency policy, do not require the exercise of judgment
in determining whether documents are to be released or withheld), and
the approval of agency responses to the administrative appeals of
denials of Freedom of Information Act requests.
(14) The conduct of Administrative hearings to determine the
eligibility of any person for a security clearance, or involving
actions that affect matters of personal reputation or eligibility to
participate in Government programs.
(15) The approval of Federal licensing actions and inspections.
(16) The determination of budget policy, guidance, and strategy.
(17) The collection, control, and disbursement of fees, royalties,
duties, fines, taxes, and other public funds, unless authorized by
statute, such as 31 U.S.C. 952 (relating to private collection
contractors) and 31 U.S.C. 3718 (relating to private attorney
collection services), but not including--
(i) Collection of fees, fines, penalties, costs, or other charges
from visitors to or patrons of mess halls, post or base exchange
concessions, national parks, and similar entities or activities, or
from other persons, where the amount to be collected is easily
calculated or predetermined and the funds collected can be easily
controlled using standard case management techniques; and
(ii) Routine voucher and invoice examination.
(18) The control of the treasury accounts.
(19) The administration of public trusts.
(20) The drafting of Congressional testimony, responses to
Congressional correspondence, or agency responses to audit reports from
the Inspector General, the General Accounting Office, or other Federal
audit entity.
(d) The following is a list of examples of functions generally not
considered to be inherently governmental functions. However, certain
services and actions that are not considered to be inherently
governmental functions may approach being in that category because of
the nature of the function, the manner in which the contractor performs
the contract, or the manner in which the Government administers
contractor performance. This list is not all inclusive:
(1) Services that involve or relate to budget preparation,
including workload modeling, fact finding, efficiency studies, and
should-cost analyses, etc.
(2) Services that involve or relate to reorganization and planning
activities.
(3) Services that involve or relate to analysis, feasibility
studies, and strategy options to be used by agency personnel in
developing policy.
(4) Services that involve or relate to the development of
regulations.
(5) Services that involve or relate to the evaluation of another
contractor's performance.
(6) Services in support of acquisition planning.
(7) Contractors providing assistance in contract management (such
as where the contractor might influence official evaluations of other
contractors).
(8) Contractors providing technical evaluation of contract
proposals.
(9) Contractors providing assistance in the development of
statements of work.
(10) Contractors providing support in preparing responses to
Freedom of Information Act requests.
(11) Contractors working in any situation that permits or might
permit them to gain access to confidential business information and/or
any other sensitive information (other than situations covered by the
Defense Industrial Security Program described in 4.402(b)).
(12) Contractors providing information regarding agency policies or
regulations, such as attending conferences on behalf of an agency,
conducting community relations campaigns, or conducting agency training
courses.
(13) Contractors participating in any situation where it might be
assumed that they are agency employees or representatives.
(14) Contractors participating as technical advisors to a source
selection board or participating as voting or nonvoting members of a
source evaluation board.
(15) Contractors serving as arbitrators or providing alternative
methods of dispute resolution.
(16) Contractors constructing buildings or structures intended to
be secure from electronic eavesdropping or other penetration by foreign
governments.
(17) Contractors providing inspection services.
(18) Contractors providing legal advice and interpretations of
regulations and statutes to Government officials.
(19) Contractors providing special non-law enforcement, security
activities that do not directly involve criminal investigations, such
as prisoner detention or transport and non-military national security
details.
(e) Agency implementation shall include procedures requiring the
agency head or designated requirements official to provide the
contracting officer, concurrent with transmittal of the statement of
work (or any modification thereof), a written determination that none
of the functions to be performed are inherently governmental. This
assessment should place emphasis on the degree to which conditions and
facts restrict the discretionary authority, decision-making
responsibility, or accountability of Government officials using
contractor services or work products. Disagreements regarding the
determination will be resolved in accordance with agency procedures
before issuance of a solicitation.
PART 11--DESCRIBING AGENCY NEEDS
6. Section 11.105 is added to read as follows:
11.105 Purchase descriptions for service contracts.
In drafting purchase descriptions for service contracts, agency
requiring activities shall ensure that inherently governmental
functions (see subpart 7.5) are not assigned to a contractor. These
purchase descriptions shall
(a) Reserve final determination for Government officials;
(b) Require proper identification of contractor personnel who
attend meetings, answer Government telephones, or work in situations
where
[[Page 2630]]
their actions could be construed as acts of Government officials
unless, in the judgment of the agency, no harm can come from failing to
identify themselves; and
(c) Require suitable marking of all documents or reports produced
by contractors.
PART 37--SERVICE CONTRACTING
7. Section 37.102 is revised to read as follows:
37.102 Policy.
(a) Agencies shall generally rely on the private sector for
commercial services (see OMB Circular No. A-76, Performance of
Commercial Activities and subpart 7.3).
(b) Agencies shall not award a contract for the performance of an
inherently governmental function (see subpart 7.5).
(c) Non-personal service contracts are proper under general
contracting authority.
8. Section 37.114 is added to read as follows:
37.114 Special acquisition requirements.
Contracts for services which require the contractor to provide
advice, opinions, recommendations, ideas, reports, analyses, or other
work products have the potential for influencing the authority,
accountability, and responsibilities of Government officials. These
contracts require special management attention to ensure that they do
not result in performance of inherently governmental functions by the
contractor and that Government officials properly exercise their
authority. Agencies must ensure that--
(a) A sufficient number of qualified Government employees are
assigned to oversee contractor activities, especially those that
involve support of government policy or decision making. During
performance of service contracts, the functions being performed shall
not be changed or expanded to become inherently governmental.
(b) A greater scrutiny and an appropriate enhanced degree of
management oversight is exercised when contracting for functions that
are not inherently governmental but closely support the performance of
inherently governmental functions (see 7.503(c)).
(c) All contractor personnel attending meetings, answering
Government telephones, and working in other situations where their
contractor status is not obvious to third parties are required to
identify themselves as such to avoid creating an impression in the
minds of members of the public or Congress that they are Government
officials, unless, in the judgment of the agency, no harm can come from
failing to identify themselves. They must also ensure that all
documents or reports produced by contractors are suitably marked as
contractor products or that contractor participation is appropriately
disclosed.
[FR Doc. 96-1015 Filed 1-25-96; 8:45 am]
BILLING CODE 6820-EP-M
Complete official Federal Register PDF
FR Doc. 96-1014 Federal Acquisition Circular 90-37 Introduction
[Federal Register Volume 61, Number 18 (Friday, January 26, 1996)]
[Rules and Regulations]
[Pages 2626-2627]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-1014]
[[Page 2625]]
_______________________________________________________________________
Part IV
Department of Defense
General Services Administration
National Aeronautics and Space Administration
_______________________________________________________________________
48 CFR Ch. I, et al.
Federal Acquisition Regulations; Final and Interim Rules
Federal Register / Vol. 61, No. 18 / Friday, January 26, 1996 / Rules
and Regulations
[[Page 2626]]
DEPARTMENT OF DEFENSE
GENERAL SERVICES ADMINISTRATION
NATIONAL AERONAUTICS AND SPACE ADMINISTRATION
48 CFR Chapter 1
Federal Acquisition Circular 90-37 Introduction
AGENCY: Department of Defense (DOD), General Services Administration
(GSA), and National Aeronautics and Space Administration (NASA).
ACTION: Summary presentation of final and interim rules with request
for comment.
-----------------------------------------------------------------------
SUMMARY: This document summarizes the Federal Acquisition Regulation
(FAR) rules which follow it in the order listed below. The Civilian
Agency Acquisition Council and the Defense Acquisition Regulations
Council are issuing Federal Acquisition Circular (FAC) 90-37 to amend
the FAR.
DATES: For effective dates and comment dates, see separate documents
which follow. Please cite FAC 90-37 and the appropriate FAR case
number(s) in all correspondence related to the following documents.
FOR FURTHER INFORMATION CONTACT:
The analyst whose name appears (in the table below) in relation to each
FAR case or subject area. For general information, contact the FAR
Secretariat, Room 4037, GS Building, Washington, DC 20405, (202) 501-
4755. Please cite FAC 90-37 and specific FAR case number(s).
SUPPLEMENTARY INFORMATION: Federal Acquisition Circular 90-37 amends
the Federal Acquisition Regulation (FAR) as specified below:
----------------------------------------------------------------------------------------------------------------
Item Subject FAR case Analyst
----------------------------------------------------------------------------------------------------------------
I...................... Inherently Governmental Functions.......... 92-051 O'Such.
II..................... Javits-Wagner-O'Day Program................ 91-108 Klein.
III.................... Made in America Labels/Unfair Trade 93-301/ De Stefano.
Practices. 93-306
IV..................... Debarment and Suspension Certificate....... 92-615 De Stefano.
V...................... Nonprofit Institutions Clause Prescription. 92-010 Olson.
VI..................... Field Pricing Support Request.............. 95-006 Olson.
VII.................... Subcontract Proposal Audits................ 92-002 Olson.
VIII................... Overhead Should--Cost Reviews.............. 92-017 Olson.
IX..................... SBA Responsibility, Certificate of 92-606 Klein.
Competency Requests.
X...................... Mentor Protege Program (Interim)........... 93-308 Klein.
XI..................... Subcontracting Plans....................... 92-019 Klein.
XII.................... Insurance--Liability to Third Persons 92-014 O'Such.
(under Cost Reimbursement Contracts).
XIII................... Availability of Accounting Guide........... 94-002 Olson.
XIV.................... Nonallowability of Excise Taxes on 92-604 Olson.
Nondeductible Contributions to Deferred
Compensation Plans.
XV..................... Contractors' Purchasing Systems Reviews and 92-040 Klein.
Subcontractor Consent.
----------------------------------------------------------------------------------------------------------------
Item I--Inherently Governmental Functions (FAR Case 92-051)
This final rule amends FAR Parts 7, 11, and 37 to provide policy
and procedures relating to inherently governmental functions. Subpart
7.5 is added to provide a definition of ``inherently governmental
functions'' and to provide a list of examples of functions considered
to be inherently governmental, or which shall be treated as such, and a
list of certain services and actions that are not considered to be
inherently governmental functions.
Item II--Javits-Wagner-O'Day Program (JWOD) (FAR Case 91-108)
This final rule amends FAR Parts 8, 51, and 52 to clarify that the
Government's statutory obligation to purchase certain items from the
Committee for Purchase from People Who Are Blind or Severely Disabled
also applies when contractors purchase items for Government use.
Item III--Made in America Labels/Unfair Trade Practices (FAR Cases 93-
301 and 93-306)
This final rule amends FAR 9.403, 9.406, and 9.407 to add language
concerning suspension or debarment of contractors who engage in unfair
trade practices and/or intentionally affix a label bearing a ``Made in
America'' inscription (or any inscription having the same meaning) to a
product sold in or shipped to the United States.
Item IV--Debarment and Suspension Certificate (FAR Case 92-615)
This final rule amends FAR 9.406-2, 9.407-2, and 52.209-5 to add
``tax evasion'' as a cause for debarment or suspension.
Item V--Nonprofit Institutions Clause Prescription (FAR Case 92-010)
This final rule amends the prescriptions for use of the clauses at
52.215-27, Termination of Defined Benefit Pension Plans, and 52.215-39,
Reversion or Adjustment of Plans for Postretirement Benefits Other Than
Pensions (PRB), and also clarifies the language of the clauses.
Item VI--Field Pricing Support Request (FAR Case 95-006)
This final rule revises FAR 15.805-5(c)(1) to clarify that
contracting officers may send audit requests directly to the cognizant
audit office, if no other type of field pricing support is required.
Item VII--Subcontract Proposal Audits (FAR Case 92-002)
This final rule amends FAR 15.806-3, Field pricing reports, to add
two additional examples of when field pricing support audits of
subcontract proposals may be appropriate. The first example is when the
contractor or higher tier subcontractor has been cited for having
significant estimating system deficiencies in the area of subcontract
pricing. The second example is when a lower tier subcontractor has been
cited as having significant estimating system deficiencies.
Item VIII--Overhead Should-Cost Reviews (FAR Case 92-017)
This final rule amends FAR 15.810 to add guidance on overhead
should-cost reviews.
Item IX--SBA Responsibility, Certificate of Competency Requests (FAR
Case 92-606)
This final rule amends FAR 19.602-2 to reflect the approval of
Small Business Administration regional offices to issue Certificate of
Competency (COC) Determinations as provided in 13 CFR Part 125.
[[Page 2627]]
Item X--Mentor Protege Program (FAR Case 93-308)
This interim rule amends FAR 19.702, Statutory requirements, to
allow mentor firms participating in the Department of Defense (DOD)
Mentor-Protege Program to be granted credit toward subcontracting goals
under small business subcontracting plans entered into with any
executive agency. FAR 52.244-5, Competition in Subcontracting, is
amended to permit DOD mentor firms to award subcontracts on a
noncompetitive basis to protege firms under DOD and other contracts.
Item XI--Subcontracting Plans (FAR Case 92-019)
This final rule amends FAR 19.705-2(d) to expand the circumstances
when subcontracting plans may be required from and negotiated with more
than the apparently successful offeror. The clause prescription at
19.708(b)(1) and Alternate II for the clause at 52.219-9 are added for
use when subcontracting plans are required with initial proposals.
Item XII--Insurance--Liability to Third Persons (under Cost
Reimbursement Contracting) (FAR Case 92-014)
This final rule deletes the provision at FAR 52.228-6 and makes
related changes at 28.311, 52.228-7, 52.245-7, and 52.245-10 to remove
obsolete language pertaining to liability insurance under cost-
reimbursement contracts.
Item XIII--Availability of Accounting Guide (FAR Case 94-002)
This final rule amends FAR Part 31 to add a new section 31.001
advising contractors on how to obtain a copy of an informational guide
entitled ``Guidance for New Contractors.''
Item XIV--Nonallowability of Excise Taxes on Nondeductible
Contributions to Deferred Compensation Plans (FAR Case 92-604)
This final rule amends FAR 31.205-41 to designate excise taxes at
subtitle D, chapter 43 of the Internal Revenue Code, as unallowable
costs.
Item XV--Contractors' Purchasing Systems Reviews and Subcontractor
Consent (FAR Case 92-40)
This final rule amends FAR Parts 44 and 52 to increase the
thresholds for Contractors' Purchasing Systems Reviews (CPSR's) and
subcontract consent. The threshold at 44.302(a) for performing CPSR's
is raised from $10 million to $25 million. The threshold at 52.244-2(a)
for consent to subcontract under cost-reimbursement and letter prime
contracts for fabrication, purchase, rental, installation, or other
acquisition for special test equipment is raised from $10,000 to
$25,000. The threshold at 52.244-2(b)(1) requiring additional
information on certain subcontracts is raised from $10,000 to $25,000.
Dated: January 11, 1996.
Edward C. Loeb,
Acting Director, Office of Federal Acquisition Policy.
Federal Acquisition Circular
Number 90-37
Federal Acquisition Circular (FAC) 90-37 is issued under the
authority of the Secretary of Defense, the Administrator of General
Services, and the Administrator for the National Aeronautics and Space
Administration.
Unless otherwise specified, all Federal Acquisition Regulation
(FAR) and other directive material contained in FAC 90-37 is effective
March 26, 1996, except for Item X which is effective January 26, 1996.
Dated: January 4, 1996.
Eleanor R. Spector,
Director, Defense Procurement.
Dated: January 17, 1996.
Ada M. Ustad,
Deputy Associate Administrator, Office of Acquisition Policy, General
Services Administration.
Dated: January 12, 1996.
Deidre A. Lee,
Associate Administrator for Procurement, National Aeronautics and Space
Administration.
[FR Doc. 96-1014 Filed 1-25-96; 8:45 am]
BILLING CODE 6820-EP-M
Continue your research in ChatGPT or Claude
Connect Omnilex to search the legal corpus from your AI assistant.