issue-1996-02-09•Federal Register final rules — 1996-02-09
Federal Register final rules — 1996-02-09
issue-1996-02-09Federal Register final rules — 1996-02-09Regulation
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. 96-2923 National Emission Standards for Hazardous Air Pollutants for Source Categories: Aerospace Manufacturing and Rework Facilities
[Federal Register Volume 61, Number 28 (Friday, February 9, 1996)]
[Rules and Regulations]
[Pages 4902-4903]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-2923]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 63
[AD-FRL-5419-7]
National Emission Standards for Hazardous Air Pollutants for
Source Categories: Aerospace Manufacturing and Rework Facilities
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule; correction.
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SUMMARY: This document corrects an error in the regulatory text of the
final rule for national emissions standards for hazardous air
pollutants for aerospace manufacturing and rework facilities that was
promulgated in the Federal Register on September 1, 1995 (60 FR 45948).
EFFECTIVE DATE: This regulation is effective February 9, 1996.
FOR FURTHER INFORMATION CONTACT:
For general or technical information concerning the standards, contact
Mr. James Szykman, Emission Standards Division (MD-13), U.S.
Environmental
[[Page 4903]]
Protection Agency, Research Triangle Park, North Carolina 27711;
telephone (919) 541-2452.
SUPPLEMENTARY INFORMATION: Section 112 of the Act requires EPA to
promulgate national emission standards for sources of hazardous air
pollutants (HAP). On September 1, 1995 (60 FR 45947), the Agency
promulgated final standards for the aerospace manufacturing and rework
industry. Among other provisions, the rule established a deadline for
existing sources to submit an initial notification to the
Administrator.
The submittal of an initial notification by owners or operators of
existing sources affected by relevant standards is required under
Sec. 63.9(b)(2) of the General Provisions to 40 CFR part 63. Section
63.9(b)(2) requires that this initial notification be submitted to the
Administrator within 120 days of the effective date of a promulgated
NESHAP. In the case of the final Aerospace NESHAP, affected existing
facilities would be required to submit an initial notification by
December 30, 1995.
However, in paragraph V.H.(2)(a) of the preamble to the proposed
aerospace manufacturing and rework NESHAP published in the Federal
Register on June 6, 1994 (59 FR 29216), the Agency stated its intent to
override the submittal date specified in the General Provisions and to
require owners or operators of affected aerospace manufacturing and
rework facilities to submit this initial notification ``* * * no later
than 12 months before the final compliance date [i.e., by September 1,
1997] * * *.'' One comment was received concerning the submittal of the
initial notification (see Docket Number A-92-20, Entry Number IV-D-31).
This commenter requested that the initial notification be submitted
within the 120 days specified in the General Provisions. While the
Agency generally favors early interaction amongst the regulated
community, permitting agencies, and the public, especially in instances
where the final compliance date is less than three years from
promulgation; the Agency was not compelled to alter its position from
that found in the preamble to the proposed rule because of the three
years allowed for existing sources to comply. Therefore, the final rule
should have indicated requirements for the submittal of an initial
notification within 2 years of the effective date of the final
standard. However, language specifying the September 1, 1997 date for
submittal of the initial notification was mistakenly omitted from the
final rule published in the Federal Register. In today's document, the
Agency has corrected this omission and has included the applicable
language.
Dated: February 1, 1996.
Richard D. Wilson,
Acting Assistant Administrator for Air and Radiation.
The following corrections are being made in the regulatory text
for: National Emission Standards for Hazardous Air Pollutants for
Aerospace Manufacturing and Rework Facilities published in the Federal
Register on September 1, 1995 (60 FR 45948):
Sec. 63.753 [Corrected]
1. Paragraph (a)(1) of Sec. 65.753 on page 45979, column 1, should
read as follows:
* * * * *
(a)(1) Except as provided in paragraphs (a)(2) and (a)(3) of this
section, each owner or operator subject to this subpart shall fulfill
the requirements contained in Sec. 63.9 (a) through (e) and (h) through
(j), Notification requirements, and Sec. 63.10 (a), (b), (d) and (f),
Recordkeeping and reporting requirements, of the General Provisions, 40
CFR part 63, subpart A, except that the initial notification
requirements for new or reconstructed affected sources in Sec. 63.9(b)
(3) though (5) shall not apply. In addition to the requirements of
Sec. 63.9(h), the notification of compliance status shall include:
(i) Information detailing whether the source has operated within
the specified ranges of its designated operating parameters.
(ii) For each coating line, where averaging will be used along with
the types of quantities of coatings the facility expects to use in the
first year of operation. Averaging scheme shall be approved by the
Administrator or delegated State authority and shall be included as
part of the facility's title V or part 70 permit.
(2) The initial notification for existing sources, required in
Sec. 63.9(b)(2) shall be submitted no later than September 1, 1997. For
the purpose of this subpart, a title V or part 70 permit application
may be used in lieu of the initial notification required under
Sec. 63.9(b)(2), provided the same information is contained in the
permit application as required by Sec. 63.9(b)(2), and the State to
which the permit application has been submitted has an approved
operating permit program under part 70 of this chapter and has received
delegation of authority from the EPA. Permit applications shall be
submitted by the same due dates as those specified for the initial
notifications.
* * * * *
[FR Doc. 96-2923 Filed 2-8-96; 8:45 am]
BILLING CODE 6560-50-M
Complete official Federal Register PDF
FR Doc. 96-2903 Interpretive Rulings
[Federal Register Volume 61, Number 28 (Friday, February 9, 1996)]
[Rules and Regulations]
[Pages 4849-4870]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-2903]
=======================================================================
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DEPARTMENT OF THE TREASURY
Office of the Comptroller of the Currency
12 CFR Parts 7 and 31
[Docket No. 96-03]
RIN 1557-AB38
Interpretive Rulings
AGENCY: Office of the Comptroller of the Currency, Treasury.
ACTION: Final rule.
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SUMMARY: The Office of the Comptroller of the Currency (OCC) is
revising its interpretive rulings. This final rule is another component
of the OCC's Regulation Review Program to update and streamline OCC
regulations, focus regulations on key safety and soundness concerns and
agency objectives, and eliminate requirements that impose inefficient
and costly regulatory burdens on national banks. The final rule
[[Page 4850]]
clarifies, revises, and reorganizes existing interpretive rulings,
eliminates rulings that are obsolete, adds interpretive rulings to
address new issues, and relocates some interpretive rulings to another
part of title 12.
EFFECTIVE DATE: April 1, 1996.
FOR FURTHER INFORMATION CONTACT: Stuart E. Feldstein, Senior Attorney,
Legislative and Regulatory Activities, (202) 874-5090; Jacqueline
Lussier, Senior Attorney, Legislative and Regulatory Activities, (202)
874-5090; Daniel Cooke, Attorney, Legislative and Regulatory
Activities, (202) 874-5090; or Saumya R. Bhavsar, Attorney, Legislative
and Regulatory Activities, (202) 874-5090. Office of the Comptroller of
Currency, 250 E Street SW., Washington, DC 20219.
SUPPLEMENTARY INFORMATION:
Background
On March 3, 1995, the OCC published a notice of proposed rulemaking
(60 FR 11924, March 3, 1995) (proposal) to revise 12 CFR part 7--the
OCC's interpretive rulings. Part 7 serves as a repository of
interpretive rulings applicable to national banks that generally are
not related to the subject matter contained in other parts of chapter I
of title 12.
The proposal sought to implement the goals of the Regulation Review
Program by updating and streamlining the regulation and eliminating
requirements that imposed inefficient and costly regulatory burdens on
national banks. The proposal also eliminated obsolete rulings, added
interpretive rulings to address new issues, and transferred some
interpretive rulings to 12 CFR part 31.
Comments Received and Changes Made
The final rule implements most of the initiatives contained in the
proposal. However, the OCC has made a number of changes in response to
the comments received and to further reduce unnecessary regulatory
burden.
The OCC received 112 comment letters on the proposal. The vast
majority of these commenters supported the proposed changes to part 7.
The comment letters included 36 from banks and bank holding companies,
24 from trade associations, 19 from governmental representatives, 16
from law firms, eight from private businesses, four from community
groups, three from congressmen, one from an unaffiliated individual,
and one from a clearinghouse.
Commenters strongly favored reducing unnecessary regulatory burden
and updating and clarifying the interpretive rulings. Overall, most
commenters commended the OCC's efforts, and some commenters offered
variations on certain of the proposed changes.
Many commenters recommended changes that focused on specific
sections of the proposal. The OCC carefully considered each of the
comment letters, and the section-by-section discussion later in this
preamble identifies and discusses comments received and changes made to
certain sections of the proposal.
Overview of the Final Rule
The final rule adopts the proposal's structural format and
reorganizes part 7 into four topic areas: Subpart A--Bank Powers,
Subpart B--Corporate Practices, Subpart C--Bank Operations, and Subpart
D--Preemption. Distribution and derivation tables summarizing sections
of former part 7 changed by the final rule are included at the end of
this preamble. The OCC anticipates adding rulings in the future to part
7 or other parts in title 12 as necessary to address changing industry
practices and developing issues.
The OCC received comments on a number of sections for which it did
not propose substantive changes. The OCC has reviewed the comments and
is not making any changes to certain of these sections at this time. A
list of these unchanged sections is included at the end of the section-
by-section summary.
Finally, the final rule removes a number of sections, moves certain
sections to another part of title 12, and retains certain sections
pending the issuance of final rules for 12 CFR parts 1 and 5. A
description of these sections is contained at the end of the preamble.
Section-by-Section Discussion
National Bank Ownership of Property (Section 7.1000)
The proposal simplified and consolidated into a single section,
Sec. 7.1000, several interpretive rulings relating to permissible
ownership of real property by national banks. Proposed Sec. 7.1000: (1)
described real estate that a bank may own pursuant to 12 U.S.C. 29 and
permissible means of holding that real estate; (2) stated that a bank
may own fixed assets; (3) identified certain limitations on investment
in bank premises and on exercising options to purchase bank premises;
(4) stated the circumstances under which a national bank may purchase a
transferred employee's residence; (5) provided that a bank may engage
in lease financing transactions of public facilities; and (6) provided
that a bank may organize a bank premises subsidiary as a corporation, a
partnership, or similar entity.
Most of the comments generally supported the proposal. One
commenter urged the OCC to state in Sec. 7.1000, as it had in the
preamble to the proposal, that a bank may organize a bank premises
subsidiary as a limited liability company. In response to this
suggestion, the final ruling states that the term ``similar entity''
includes limited liability companies.
The OCC also requested comment on whether to expand the proposal
permitting a national bank to own real estate for leasing to
municipalities or other public authorities to include other types of
lease financing transactions. Several commenters urged the OCC to
expand the proposal to permit ownership where the lessee is a non-
public sector entity. The OCC has decided, however, that it will not
address this issue at this time.
The final rule also simplifies and clarifies Sec. 7.1000's
description of the types of real estate that may be held pursuant to
the authority granted by 12 U.S.C. 29 (First). In addition, the final
rule makes a minor organizational change by moving proposed
Sec. 7.1000(c), which describes the permissible means of holding real
estate necessary for the transaction of business, into proposed
Sec. 7.1000(a), which discusses that real estate.
The final rule also eliminates cross references to 12 CFR part 5,
because the approval provisions referenced in the proposal have not yet
been promulgated in part 5. The OCC will reinsert appropriate cross
references when revisions to part 5 are promulgated.
National Bank Acting as Finder (Section 7.1002)
The proposal clarified that a national bank may act as a finder of
certain goods and services in addition to acting as a finder for
insurance. The proposal also stated that acting as a finder does not
include activities that would characterize the bank as a broker under
applicable Federal law. Three commenters recommended that the OCC
remove this limitation.
Two commenters recommending removal of this limitation expressed
concern that the statement is unnecessary and may create some
uncertainty concerning a national bank's legal authority to engage in
brokerage activities. The OCC does not intend for this provision to
limit a national bank's authority to act as a broker where permitted
under applicable Federal law. It merely clarifies that the authority to
act as a
[[Page 4851]]
finder is different from the authority to act as a broker and that a
bank may not rely on the ``finder'' authority to engage in
``brokerage'' activities that are otherwise not authorized by Federal
law. The proposal also stated that, ``Unless otherwise prohibited,'' a
national bank may advertise and accept a fee for acting as a finder.
Two commenters suggested that the OCC delete the phrase ``Unless
otherwise prohibited'' to permit a national bank to act as a finder
without restriction. However, this language recognizes that some
limitations may apply to national bank finders fees. For example, state
laws may prohibit brokers from splitting commissions with nonbrokers.
In addition, the Real Estate Settlement Procedures Act (RESPA) and its
implementing regulations prohibit the acceptance of a fee for a
referral to a settlement service if the referral involves a federally-
related mortgage loan. See 12 U.S.C. 2601 through 2617, and 24 CFR
3500.14(b). Therefore, the final ruling retains this phrase.
One commenter also suggested that the OCC reference RESPA in the
final ruling to ensure that banks do not mistakenly believe that this
ruling preempts RESPA. However, the OCC believes that adding this
reference is unnecessary and, therefore, adopts Sec. 7.1002 as
proposed.
Money Lent at Banking Offices or at Other Than Banking Offices (Section
7.1003); Loans Originating at Other Than Banking Offices (Section
7.1004); Credit Decisions at Other Than Banking Offices (Section
7.1005)
Proposed Secs. 7.1003, 7.1004, and 7.1005 addressed the
circumstances under which the OCC would apply the branching limitations
and procedures set forth in 12 U.S.C. 36 and 12 CFR 5.30 to lending
activities by national banks.
Proposed Sec. 7.1003 incorporated case law relating to where
``money'' is ``lent'' for purposes of branching. Under the proposal,
money is lent where the customer, in person, receives loan funds from
the bank. Thus, if a customer receives funds from a bank employee or at
bank premises, the bank would be subject to branching limitations and
require OCC branch approval. However, if the customer receives funds
from an independent third party, including a messenger service
described in Sec. 7.1012, at a nonbank facility, the bank would not be
subject to branching limitations and would not require OCC branch
approval. Proposed Sec. 7.1003 also would codify OCC interpretations
that branching requirements do not encompass certain accepted industry
practices on loan disbursal such as when an attorney or escrow agent
disburses funds at a real estate closing.
Proposed Sec. 7.1004 retained the language in Sec. 7.7380, a
judicially recognized safe harbor explaining the circumstances under
which national banks may originate loans at nonbranch sites, known as
loan production offices (LPOs), without those sites being considered
branches.
Proposed Sec. 7.1005 incorporated OCC interpretations explaining
that offices at which loan approvals occur are not, solely by virtue of
that activity, considered branches. This interpretation also recognized
that a bank may approve loans originated at an LPO at locations other
than the bank's main office or branches without causing the LPO to be
considered a branch, even though this process does not fit squarely
within the safe harbor set forth in Sec. 7.1004. Of course, this LPO or
loan approval office would constitute a branch if it undertakes to lend
money as defined in Sec. 7.1003 or otherwise is defined as a branch
under the McFadden Act (12 U.S.C. 36(j)) and 12 CFR 5.30.
Fifteen commenters addressed one or more aspects of these rulings.
Most supported the proposals generally or had specific comments seeking
clarification of certain aspects of the proposed language. Several
asked the OCC to state that the Sec. 7.1003 language regarding where a
loan is made pertains only to the lending of money for branching
purposes and does not control where a loan is made for purposes of
applying applicable state laws.
In proposing these rulings, the OCC considered only the language
and history of 12 U.S.C. 36(j) concerning what constitutes a ``branch''
for purposes of the McFadden Act. Thus, for clarification purposes, the
final ruling uses the term ``money lent'' contained in the McFadden Act
instead of the phrase ``loan is made'' and explicitly states that the
definition of ``money lent'' applies only to that term as used in 12
U.S.C. 36(j) and 12 CFR 5.30. The OCC does not intend to apply this
definition to the determination of where a bank is ``located'' for
purposes of applying usury limits set forth in 12 U.S.C. 85 or to
control the applicability of various state laws pertaining to lending.
Several commenters thought that the branching definition set forth
in proposed Sec. 7.1003 was incomplete because it did not take into
account whether the bank had established the lending facility or
whether the public had access to the facility. However, the OCC has
proposed to include a general definition of what constitutes a branch,
including the ``public access'' and ``establishment'' tests, in its
proposed revisions to 12 CFR part 5.1
1 See 59 FR 61034 (proposed November 29, 1994). In this regard,
the OCC also notes that what constitutes ``establishment'' of a
branch would more appropriately be determined pursuant to an
analysis of the McFadden Act, case law, and 12 CFR part 5. Thus, the
OCC has changed references in proposed Sec. 7.1003 to a facility
that is ``owned or rented'' by a bank to a facility that is
``established'' by a bank.
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Several commenters asked the OCC to clarify where money would be
considered to be lent for branching purposes. One commenter expressed
concern that because many loans do not involve in-person disbursement,
a bank could make a loan without branch involvement, thus creating a
``gap'' that causes the test to fail. The OCC recognizes that
technology and market developments may, in many instances, result in a
bank making a loan without branch involvement. This has long been the
case on the deposit side where a customer can make deposits and
withdrawals by mail or through shared ATMs or other electronic means
without branch involvement. As on the deposit side, this ``gap'' does
not cause the test to fail--it just recognizes modern realities that
banks can undertake traditional banking activities in ways that
Congress did not contemplate in the McFadden Act as adopted in 1927. In
the final ruling the OCC specifically includes in Sec. 7.1003(a) the
phrase ``if any'' to indicate that the OCC does not believe that the
making of a loan necessarily causes any particular location to be a
``branch'' within the meaning of 12 U.S.C. 36.
Several commenters also questioned the interplay of Sec. 7.1004
with Secs. 7.1003 and 7.1005. The OCC has retained Sec. 7.1004, former
Sec. 7.7380, because it is a judicially recognized safe harbor
permitting national banks to undertake certain lending related
activities without the constraints of the McFadden Act. The OCC notes,
however, that this is a safe harbor; merely because a lending related
activity falls outside the scope of Sec. 7.1004, as with Sec. 7.1005
regarding the making of credit decisions, does not mean that the OCC
views the bank as violating the McFadden Act.
One commenter also stated that Sec. 7.1003(b) was not broad enough.
The OCC emphasizes that any person or entity qualifying under the
messenger service ruling (Sec. 7.1012), could deliver loan proceeds
without implicating the branching rules and that Sec. 7.1012 is itself
a safe harbor.
[[Page 4852]]
Thus, the OCC has adopted Secs. 7.1003, 7.1004, and 7.1005
substantially as proposed. The final ruling clarifies that the
definition of the phrase ``money lent'' applies solely to that phrase
as used in the McFadden Act and 12 CFR 5.30. In addition, the OCC has
changed the references in the proposal to the ``disbursal of funds by
the bank to a customer'' to the ``receipt of loan proceeds directly
from bank funds.'' This change clarifies that the key portion of a loan
transaction for branching purposes is in-person receipt by the borrower
from the bank or on bank premises of loan proceeds directly from bank
funds--not disbursement by the bank through any mechanism, nor
disbursement of funds that at the time of receipt by the borrower are
not bank funds, nor disbursement of funds that do not at the time of
disbursement constitute loan proceeds. In addition, in the final ruling
the OCC changes references to a ``subsidiary corporation'' to
``operating subsidiary.''
Loan Agreement Providing for a Share in Profits, Income or Earnings or
for Stock Warrants (Section 7.1006)
The proposal did not change this section, which permits a national
bank to take as consideration for a loan a share in the profit, income,
or earnings from a business enterprise of a borrower. One commenter
suggested that the OCC state that a national bank may accept stock
warrants as consideration for a loan.
The OCC has previously approved the acceptance of stock warrants
taken in addition to, or in lieu of, interest on a loan, provided that
a national bank does not exercise the acquired stock warrants. See OCC
Interpretive Letter No. 517 (August 16, 1990), reprinted in [1990-1991
Transfer Binder] Fed. Banking L. Rep. (CCH) para. 83,228. The OCC has
incorporated this interpretation into the final ruling.
Postal Service by National Bank (Section 7.1010)
The proposal made no substantive changes to this section. One
commenter noted that, by stating that the services performed by a
postal substation may include meter stamping of letters and packages,
and the sale of related insurance, the ruling could imply that a
national bank may offer only the listed services. The OCC does not
intend for this to be an exclusive list of services and has, by
interpretive letters, found that a national bank may engage in other
activities, including selling stamps, accepting letters and packages
for mailing, and maintaining post office boxes. Because a national bank
operating a postal substation must do so in accordance with the
regulations of the United States Postal Service, the OCC has changed
the ruling to reference those regulations.
National Bank Acting as Payroll Issuer (Section 7.1011)
The proposal made no substantive changes to former Sec. 7.7485,
which recognized that a national bank may disburse to employees of a
bank customer payroll funds deposited with the bank by that customer.
One commenter observed that the proposed ruling could be read narrowly
to bar disbursement of payroll funds if made indirectly to the employee
by crediting the employee's account with a financial institution other
than the disbursing bank. The OCC has recognized that a national bank
may forward funds to other banks in which a customer's employees
maintain accounts. See Letter from F.H. Ellis, Chief National Bank
Examiner (July 19, 1971) (unpublished).2 The OCC has modified the
proposal and former ruling to reflect that precedent and to incorporate
certain technical changes.
2 All unpublished OCC staff interpretive letters are
available (in redacted form) upon request from the Communications
Division, 250 E Street, SW, Washington, DC 20219 (202) 874-4700.
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Debt Cancellation Contracts (Section 7.1013)
The former interpretive ruling permitted national banks to offer
customers debt cancellation contracts (DCCs) that cancel debt upon the
death of the borrower. The proposal added disability and unemployment
as types of DCCs that are expressly permitted by the interpretive
ruling.
The OCC received several comments on this section. The majority of
those commenters supported the proposal. Some urged the OCC to expand
the final ruling to state that national banks may offer additional
types of DCCs that the OCC did not include in the proposal. Some
commenters, however, cautioned that DCCs present certain risks, and,
therefore, did not support expansion of the former interpretive ruling.
The final ruling expands the former ruling to provide that a
national bank may offer DCCs for the death or disability of a borrower.
The OCC recognizes that it also may be appropriate for a national bank
to offer a DCC that is triggered by other events. However, risk
considerations that may be particular to other types of DCCs, or to
specific banks, require the OCC to consider these other types of DCCs
on a case-by-case basis.
In addition, national banks offering DCCs, whether for death or
disability, or for other triggering events, must do so in a safe and
sound manner. If a bank is unable to demonstrate an ability by itself
to estimate and reserve adequately for the risks attendant to DCCs, the
bank may obtain third party coverage or take other measures to cover
the risks presented by the DCC.
Independent Undertakings To Pay Against Documents (Section 7.1016)
The proposal updated former Sec. 7.7016 to reflect modern market
standards and industry usage and replaced the term ``letters of
credit'' with ``independent undertakings.'' The term ``independent
undertakings'' is used by the United Nations Commission on
International Trade Law (UNCITRAL) to cover a broader array of
transactions in this area.
The proposal extended the same safety and soundness principles in
the former ruling to this broader class of independent undertakings.
The proposal explained that non- documentary conditions on the bank's
undertaking are not relevant to the bank's obligation to honor its
commitment. Furthermore, the proposal provided a clearer statement of
regulatory standards directed to the segment of the banking industry
that engages in these activities. The proposal also provided a non-
exclusive list of sample laws and rules of practice under which a
national bank may issue independent undertakings.
The OCC received 13 comments with the majority supporting the
proposal. Several commenters recommended that when referencing
applicable laws or rules of practice, the ruling should use generic
citation references or citations to their most recent versions. The OCC
has updated the non-exclusive list of sample laws and rules of practice
to refer to Revised Article 5 of the Uniform Commercial Code (UCC)
(1995) (current model code) as well as Article 5 of the UCC (1990)
(former model code), and to the 1993 version of the Uniform Customs and
Practice for Documentary Credits (ICC Publication No. 500) (effective
January 1, 1994) instead of the 1983 version. The sample listing is
intended to provide non-exclusive examples of laws or rules of
practice, as the cited examples may not necessarily apply in a
particular case or may be revised in the future, or other applicable
laws or rules of practice subsequently may come into effect. The OCC
has added the phrase ``as any of the foregoing may be amended from time
to tim'' to the end of the non-exclusive listing of sample laws and
rules of
[[Page 4853]]
practice to recognize that they may be revised from time to time.
Four commenters recommended clarifying that ``evergreen'' clauses
are permissible, despite the proposal's requirement in
Sec. 7.1016(b)(1)(iii) that the undertaking be ``limited in duration.''
Long-standing OCC precedent permits national banks to use ``evergreen''
or ``automatic extension'' clauses in their letters of credit provided
that the bank retains the right not to renew the letter of credit.
Therefore, the final ruling adds clarifying language expressly
permitting a national bank to issue an undertaking without an express
expiration date, provided that the bank has the right to cancel the
undertaking upon notice to the parties.
Several commenters objected to the word ``must'' in proposed
Sec. 7.1016(b), as ``must'' seemed to impose mandatory safety and
soundness conditions on the issuance of independent undertakings. The
final ruling changes references in Sec. 7.1016(b) from ``must'' to
``should,'' consistent with former Sec. 7.7016, to provide banks with
added flexibility in structuring and entering into financing
arrangements. Nonetheless, the OCC strongly urges national banks to
evaluate these safety and soundness factors when issuing independent
undertakings.
Some commenters asked whether the proposal's reference to a bank
issuing an undertaking for its own account meant that the OCC permits
national banks to issue two-party letters of credit. As intended in the
proposal, the OCC's position is that a national bank may issue a two-
party letter of credit provided that it is permissible under applicable
law and satisfies the requirements of Sec. 7.1016(b)(2)(iii), regarding
a bank's undertaking for its own account. Since a two-party letter of
credit is issued for the bank's own account, the two-party letter of
credit satisfies the requirements of Sec. 7.1016(b)(1)(iv), regarding a
bank's right of reimbursement.
National Bank as Guarantor or Surety on Indemnity Bond (Section 7.1017)
The proposal removed a well-settled provision stating that foreign
branches may exercise additional powers pursuant to 12 U.S.C. 604a. The
proposal made no other substantive changes.
The proposal generally provided that a national bank may act as
guarantor or surety to indemnify another if the bank has a substantial
interest in the performance of the transaction or a segregated deposit
sufficient in amount to cover the bank's total potential liability. One
commenter suggested that the OCC should expand the ruling to permit a
national bank to guarantee or indemnify a party to a transaction if the
guarantee or indemnification is secured by any of the types of
collateral acceptable under section 23A of the Federal Reserve Act
(FRA) (12 U.S.C. 371c) for a ``covered transaction.''
The OCC finds that the types of collateral listed at section
23A(c)(1) (A) and (B) of the FRA (12 U.S.C. 371c(c)(1) (A) and (B)),
the 100 and 110 percent collateral categories, respectively, are
acceptable for a national bank to use as security without undue risk
when acting as a guarantor or surety to indemnify another. Therefore,
the final ruling permits a national bank to lend its credit, bind
itself as surety to indemnify another, or otherwise become a guarantor
to a transaction if the bank has a security interest in either of these
two categories of collateral.
The 100 percent collateral category includes obligations of the
United States or its agencies, obligations fully guaranteed by the
United States or its agencies as to principal and interest, and notes,
drafts, bills of exchange, and bankers' acceptances that are eligible
for rediscount or purchase by a Federal Reserve Bank. The 110 percent
collateral category includes obligations of a state or political
subdivision of a state.
To ensure that the bank is not exposed to a risk of loss, the bank
must perfect its security interest in the collateral. For example, if
the collateral is a printed security, the bank must have obtained
physical control of the security, and, if the collateral is a book
entry security, the bank must have properly recorded its security
interest.
Because the value of these types of collateral can fluctuate, the
final ruling requires that the collateral have a market value, at the
close of each business day, equal to the bank's total potential
liability if the collateral is composed of obligations of the United
States or its agencies, obligations fully guaranteed by the United
States or its agencies as to principal and interest, or notes, drafts,
bills of exchange, or bankers' acceptances that are eligible for
rediscount or purchase by a Federal Reserve Bank. If the collateral is
composed of obligations of a state or political subdivision of a state,
it must have a market value, at the close of each business day, equal
to 110 percent of the bank's total potential liability.
Furnishing of Products and Services by Electronic Means and Facilities
(Section 7.1019)
The proposal permitted a national bank to use data processing
equipment to perform for itself and others ``all services expressly or
incidentally authorized under the statutes applicable to national
banks.'' The proposal also incorporated the OCC's interpretive position
that a national bank using data processing equipment or technology to
perform authorized services may market and sell ``any legitimate excess
capacity'' in that equipment or technology. See, e.g., OCC Interpretive
Letter No. 677 (June 28, 1995), reprinted in [1994-1995 Transfer
Binder] Fed. Banking L. Rep. (CCH) para. 83,625.
The OCC requested comment on whether the proposed language is
necessary. The OCC also requested comment on whether the OCC should
more specifically describe permissible sales of excess capacity and the
services that a national bank may provide using data processing
equipment or technology.
All 12 of the commenters generally supported the proposal. A
majority of the commenters stated that greater specificity in
describing authorized services would not be useful because more
detailed language would quickly become outdated by the rapid
development of technology. In addition, a majority of the commenters
urged the OCC to adopt a broader standard than the proposal used to
define the scope of permissible sales of data processing equipment and
technology. Three commenters urged the OCC to delete the term
``legitimate'' from the phrase ``legitimate excess capacity.'' One
commenter suggested that the OCC state that a bank may market and sell
any excess capacity in data processing equipment or technology that the
bank acquired or developed for banking purposes based on a good faith
determination of its own current and future needs.
The OCC considered a number of alternatives for changing the
proposal to modernize the treatment of permissible data processing
activities. The OCC recognizes that national banks are engaging, and
will engage, in an increasing range of activities through electronic
means and facilities beyond simply ``data processing.'' For this
reason, the OCC has modified this ruling to refer to activities,
functions, products, and services provided via electronic means and
facilities, rather than ``data processing'' and changes the title of
Sec. 7.1019 from ``Use of data processing equipment and furnishing of
data processing services'' to ``Furnishing of products and services by
electronic means and facilities.''
The OCC also finds the commenter's suggestion of a ``good faith''
standard to be more appropriate than ``legitimate
[[Page 4854]]
excess capacity'' to define the scope of a national bank's permissible
sales of excess electronic capacities. The good faith requirement is an
important safeguard against abusing this authority. Therefore, the OCC
adopts the commenter's suggestion. Moreover, the final ruling, which
expressly states that these sales are appropriate for a bank to
optimize the use of the bank's resources, more closely parallels the
standard the OCC applies when national banks utilize their excess
physical space for non-bank uses. See, e.g., Letter from Peter
Liebesman, Assistant Director, Legal Advisory Services Division (July
24, 1987) (unpublished) and cases cited therein, Wingert v. First Nat'l
Bank of Hagerstown, Md., 175 F. 739 (4th Cir. 1909), aff'd, 223 U.S.
670 (1912); Brown v. Schleier, 118 F. 981 (8th Cir. 1902), aff'd, 194
U.S. 18 (1904).
Purchase of Open Accounts (Section 7.1020)
The proposal contemplated moving former Sec. 7.1105 to 12 CFR part
32. However, the section relates to a national bank's ability to engage
in factoring, and the OCC has concluded that it more appropriately
belongs in part 7. Therefore, the final ruling adopts the language
contained in the former ruling, except for the language that ``accounts
need not in every case represent an evidence of debt.'' This language
is removed because it is well settled under OCC precedents that
factoring is an extension of credit for lending limit purposes.
Corporate Governance Procedures (Section 7.2000)
The proposal provided that a national bank undertaking a corporate
governance procedure must comply with applicable statutes and
regulations, and safe and sound banking practices. The proposal also
established a safe harbor for a national bank that undertakes a
corporate governance procedure, if the bank complied with certain OCC-
designated sections of the Model Business Corporation Act (MBCA), where
the Federal banking statutes and regulations are otherwise silent on
the matter. The OCC invited comment on whether the MBCA is the
appropriate form of guidance to provide national banks with additional
flexibility in structuring their corporate practices or whether the
Delaware General Corporation Law or other sources are preferable.
The OCC received ten comments on the proposal. A number of
commenters recommended that the final ruling permit a national bank to
rely on the corporate governance procedures of the state where the bank
is located or the state where the bank's holding company, if any, is
incorporated. Two commenters recommended expanding the list of
permissible MBCA sections so that a national bank could rely on any
section of the MBCA to the extent it is not inconsistent with Federal
banking statutes or regulations. One commenter suggested permitting the
bank to rely on an opinion of counsel that the procedure is permissible
for a national bank.
Four commenters also discussed Delaware General Corporation Law as
a source of guidance. Two of these commenters stated that Delaware law
would be an acceptable source of guidance. One commenter supported
permitting the use of Delaware law as an alternative to the MBCA. One
commenter opposed the use of Delaware law unless other states' laws are
similarly permitted as a source of guidance for national bank corporate
governance procedures.
After careful consideration of the comments received, the OCC has
adopted a revised two-step approach that provides national banks with
maximum flexibility to structure their corporate governance procedures
while providing shareholders and others with adequate notice as to the
body of corporate standards on which the bank will rely. Under the
final ruling, a corporate governance procedure used by a national bank
must comply with applicable Federal banking statutes and regulations,
and safe and sound banking practices. In addition, to the extent not
inconsistent with those Federal banking statutes and regulations, or
safe and sound banking practices, a national bank may elect to follow
the corporate governance procedures of the state in which the main
office of the bank is located, the state where the bank's holding
company is incorporated, the Delaware General Corporation Law, Del.
Code Ann. tit. 8 (1991, as amended 1994, and as amended thereafter), or
the MBCA (1984, as amended 1994, and as amended thereafter). This
approach provides national banks with a wide range of choices to
structure their corporate governance procedures consistent with the
particular needs of the bank.
The OCC is mindful, however, of providing shareholders and other
interested parties with adequate notice of the bank's corporate
governance procedures. Therefore, the final ruling requires the bank to
designate in its bylaws the body of law that will govern its corporate
procedures. The final ruling also retains a process for a bank to seek
informal staff guidance regarding permissible corporate governance
procedures.
Notice of Shareholders' Meetings (Section 7.2001)
The proposal simplified the language in former Sec. 7.4000 and
clarified that a national bank must mail notice of the time, place, and
purpose of all shareholders' meetings at least ten days before the
proposed meeting.
Two commenters recommended revising this section to permit the sole
shareholder of a national bank to waive notice of the shareholders'
meeting. The OCC agrees that permitting the sole shareholder to waive
shareholder notice will not detrimentally affect bank safety and
soundness and will eliminate unnecessary regulatory burden. Thus, the
final ruling adds a new sentence that the sole shareholder of a
national bank may waive the notice requirements of this section.
Two commenters also recommended modifying this section to state
that shareholders generally may waive their right to written notice of
shareholder meetings. As a general matter, the OCC does not accept
written waivers of the general requirement for notice of regular annual
meetings of national banks or meetings involving certain types of
fundamental corporate changes. The corporate affairs of a bank may not
as closely involve shareholders as directors, and thus regular annual
meetings provide an important forum for expression of shareholder
views. In addition, the absence of notice and full disclosure for
meetings, particularly those involving fundamental corporate changes,
could jeopardize the ability of shareholders to protect their rights.
Another commenter recommended expanding the section to require a
national bank to mail ``or otherwise deliver'' shareholders' notice.
However, requiring a national bank to mail shareholders' notice of all
shareholders' meetings at least ten days prior to the meeting by first
class mail provides the OCC with confirmation of a bank's adherence to
the ``ten day'' shareholder notice requirement. Therefore, the final
ruling does not incorporate the phrase ``otherwise deliver.''
Honorary Directors or Advisory Boards (Section 7.2004)
The proposal permitted a national bank to appoint honorary or
advisory members of the board of directors to act in advisory
capacities without voting power or power of final decision in matters
concerning the bank's business. The proposal made no substantive
changes to this section. One commenter suggested clarifying that one or
more
[[Page 4855]]
separate advisory boards are permitted. The final ruling changes the
title and language of this section to clarify that more than one
advisory board is permissible.
Ownership of Stock Necessary To Qualify as Director (Section 7.2005)
The proposal removed repetitive information requirements relating
to directors' qualifying shares under 12 U.S.C. 72. It also
incorporated OCC precedent to provide that a director's ownership of
preferred stock in a national bank may satisfy statutory requirements.
The proposal also clarified that a director may borrow from the bank or
its affiliates the funds to purchase the required minimum equity
interest.
The OCC received two comment letters on this section. The
commenters each requested the OCC to state that a national bank
director can hold qualifying shares in individual retirement accounts,
retirement plans, 401(k) plans or other similar arrangements.
Twelve U.S.C. 72 requires a national bank director to own the
qualifying shares in ``his or her own right.'' The purpose of the
qualifying shares requirement is to ensure that a director has a
sufficient individual financial interest in the bank to induce him or
her to be vigilant in protecting the bank's interests. Cupo v.
Community National Bank & Trust Co. of New York, 324 F. Supp. 1390,
1393 (E.D.N.Y. 1971). The OCC agrees that various retirement plans and
similar arrangements may provide directors with the requisite financial
interest to satisfy the qualifying shares requirement of 12 U.S.C. 72.
Therefore, the final ruling provides that a director's qualifying
interest also may be held through profit sharing plans, individual
retirement accounts, retirement plans, and similar arrangements,
provided the director retains beneficial ownership and legal control
over the shares. For examples of arrangements the OCC has previously
approved, see Letter from Peter Liebesman, Assistant Director, Legal
Advisory Services Division (July 7, 1981) (unpublished); Letter from
Larry J. Stein, Senior Attorney, Legal Advisory Services Division (May
28, 1986) (unpublished); Letter from Christopher C. Manthey, Senior
Attorney, Legal Advisory Services Division (September 5, 1989)
(unpublished); and Letter from James A. Wright, Attorney, Securities
and Corporate Practices Division (November 6, 1989) (unpublished).
The OCC has also changed the ruling to reflect OCC precedent that
eliminates some of the distinctions between the required amount of
ownership a director must hold in national bank stock as opposed to
holding company stock. See OCC Interpretive Letter No. 503 (April 4,
1989), reprinted in [1990-1991 Transfer Binder] Fed. Banking L. Rep.
(CCH) para. 83,201. Under the final ruling, a director may hold common
or preferred stock of the bank or a company that controls the bank if
that stock has not less than an aggregate par value of $1,000, an
aggregate shareholders' equity of $1,000, or an aggregate fair market
value of $1,000.
Filling Vacancies and Increasing Board of Directors Other Than by
Shareholder Action (Section 7.2007)
The proposal modified former Sec. 7.4305 to clarify that ``the
majority of shareholders or a majority of directors'' may increase the
number of directors and that this increase is limited to two directors
(when the number of directors is 15 or fewer) or four (when the number
of directors is 16 or more). The proposal also eliminated language that
repeated the statute and clarified the procedures for filling vacancies
on the board of directors.
The OCC received three comments on the proposal. One commenter
noted that the language could be read to preclude shareholders from
increasing the board of directors by more than two (when the number of
directors is 15 or fewer) or four (when the number of directors is 16
or more). This is not the OCC's intent. Nothing in the final ruling is
intended to limit whatever lawful authority shareholders, as distinct
from the directors themselves, may have to increase the board of
directors. Therefore, the final ruling has been changed to focus solely
on increases made by action of the board of directors. Under the final
ruling, if authorized by the bank's articles of association, a majority
of the board of directors may increase the number of the bank's
directors within the limits specified in 12 U.S.C. 71a. When the board
of directors increases the number of directors, that increase is
limited to two when the number of directors last elected by
shareholders was 15 or fewer, and to four when the number of directors
last elected by shareholders was 16 or more.
The final ruling also clarifies that the shareholders, a majority
of the board of directors remaining in office, or, if the directors
remaining in office constitute fewer than a quorum, an affirmative vote
of the directors remaining in office, may fill a vacancy on the board
of directors.
Oath of Directors (Section 7.2008)
The proposal removed the last paragraph of former Sec. 7.4415,
which restated the statute and separated the section into
``administration'' and ``execution'' of the oath. One commenter
recommended clarifying that the oath must be maintained in writing for
a specified period of time. The OCC removed the requirement in the
former ruling that the director subscribe to the oath and immediately
transmit it to the OCC to be filed and preserved for ten years because
that requirement merely restates 12 U.S.C. 73. Therefore, the final
ruling makes no changes and, as in the proposal, removes the last
paragraph of the former ruling.
Directors' Responsibilities (Section 7.2010)
The proposal modified current Sec. 7.4425 to state that while
directors may delegate the day-to-day operations of the bank to
management, the directors maintain responsibility for supervising
management to ensure that the bank is operated in accordance with
policies and procedures established by the board as well as with
applicable law, regulations, and safe and sound banking practices.
Two commenters supported the proposal. Two commenters asserted that
the word ``ensure'' implies that directors are guarantors of the bank's
legal and regulatory compliance. One commenter suggested substituting
the word ``determine'' for ``ensure.'' Another commenter criticized the
proposal as contrary to statutory and case law in stating that the
board may delegate only the bank's day-to-day operations but not the
oversight function and for not stating that directors are entitled to
rely reasonably on management, officers and inside and outside
professionals for nearly all board functions. This commenter
recommended issuing a separate interpretive ruling or Banking Circular
on duties of national bank directors, or removing the ruling from part
7.
The proposal sought to provide directors with a more informed
statement of the OCC's expectations regarding the responsibilities of a
national bank's board of directors. However, the OCC acknowledges the
limitations inherent in crafting a regulation in this complex area that
is not overly detailed yet provides directors with clear and useful
guidance as to their responsibilities. Sources already available, such
as the OCC's Director's Book and the ``Comptroller's Handbook for
National Bank
[[Page 4856]]
Examiners,'' 3 provide an informal and more extensive description
of these responsibilities.
3 These sources are available upon request from the OCC
Communications Division, 250 E Street, SW, Washington, DC 20219
(202) 874-4700.
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Thus, the final ruling has been changed to provide a general
statement that the business and affairs of the bank shall be managed by
or under the direction of the board of directors. However, in order to
notify directors of their basic responsibilities and available sources
of additional guidance, the final ruling also states that a director
should refer to other OCC published guidance for additional information
regarding the OCC's views on the responsibilities of national bank
directors.
Compensation Plans (Section 7.2011)
The proposal combined and condensed current Secs. 7.5000, 7.5010,
and 7.5015, regarding bonus and profit sharing plans, pension plans,
and employee stock option and stock purchase plans, respectively, into
one section on compensation plans.
One commenter suggested that the list of compensation plans should
be illustrative rather than exclusive as there are alternative types of
compensation programs that may be appropriate for national banks but do
not fall within one of these three types. The OCC agrees with the
commenter and clarifies the final ruling to allow national banks
flexibility to adopt compensation plans other than those specified in
this section. The OCC has also changed the ruling to refer to the
compensation provisions contained in 12 CFR part 30, Standards for
Safety and Soundness.
Indemnification of Institution-affiliated Parties (Section 7.2014)
The proposal revised former Sec. 7.5217 to state that a national
bank may indemnify certain individuals and advance legal fees and
expenses, subject to certain limitations. Under the proposal, a
national bank could not, however, indemnify an individual where an
administrative proceeding resulted in a final order that assessed a
civil money penalty or required restitution, or a final removal or
prohibition order under 12 U.S.C. 1818 (e) or (g).
The proposal also imposed certain procedural requirements for
advancing expenses and legal fees in connection with administrative
enforcement actions. Under the proposal, a national bank could advance
expenses and legal fees if the disinterested members of the board of
directors determined, in good faith, that there is a reasonable basis
for the individual to prevail on the merits; that the individual has
the financial capacity to reimburse the bank if he or she did not
prevail; and that the payment of the expenses by the bank is not unsafe
or unsound. The indemnified individual would have been required to
repay advances to the bank, however, if the action or proceeding
resulted in a final order assessing a civil money penalty or requiring
restitution, or a final removal or prohibition order under 12 U.S.C.
1818 (e) or (g). The proposal also required an individual to execute a
formal and binding agreement to reimburse the bank for expenses and
fees in the event he or she did not prevail. The OCC invited comment on
whether these standards were workable or too restrictive, and whether
other standards were more appropriate.
On March 29, 1995, the Federal Deposit Insurance Corporation (FDIC)
issued its second proposal relating to bank indemnification of
institution-affiliated parties. The FDIC proposal would implement the
so-called ``golden parachute'' and indemnification provisions of
section 18(k) of the Federal Deposit Insurance Act (12 U.S.C. 1828(k))
and would apply to all depository institutions, including national
banks. Several commenters responding to the OCC proposal recommended
that the OCC adopt the FDIC proposal in its entirety or specific
provisions of the FDIC proposal that were ``less restrictive'' than the
OCC proposal. These commenters advocated a single indemnification
standard applicable to national banks to avoid conflicting standards.
The OCC agrees that a single set of rules governing permissible
indemnification in connection with administrative proceedings or civil
actions brought by Federal banking agencies should apply to national
banks. One set of rules prevents confusion, reduces compliance and
legal costs, and minimizes unnecessary regulatory burden. Because 12
U.S.C. 1828(k) subjects national banks to the requirements of any FDIC
regulation on indemnification, FDIC standards would supersede less
restrictive separate OCC standards. Therefore, the OCC has changed the
part 7 ruling on indemnification to clarify that a national bank may
make or agree to make indemnification payments to an institution-
affiliated party with respect to an administrative proceeding or civil
action initiated by any Federal banking agency, that are reasonable and
consistent with the requirements of 12 U.S.C. 1828(k) and any
implementing regulations thereunder.
The FDIC proposal does not address indemnification in circumstances
involving an administrative proceeding or civil action not initiated by
a Federal banking agency. The former ruling, Sec. 7.5217, provided
generally that indemnification articles that substantially reflect
general standards of law of the state in which the bank is
headquartered, the law of the state in which the bank's holding company
is incorporated, or the relevant provisions of the MBCA, were presumed
by the OCC to be within the corporate powers of a national bank. The
OCC has changed the proposal to provide further flexibility and to
maintain consistency with the revised corporate governance procedures
in Sec. 7.2000. Under the final ruling, with respect to an
administrative proceeding or civil action not initiated by a Federal
banking agency, a national bank may indemnify an institution-affiliated
party for damages and expenses, including the advancement of expenses
and legal fees, in accordance with the law of the state in which the
main office of the bank is located, the law of the state in which the
bank's holding company is incorporated, or the relevant provisions of
the MBCA or Delaware General Corporate Law. In all cases,
indemnification payments should be consistent with the safety and
soundness of the bank involved. The final ruling also requires the bank
to designate in its bylaws the body of law it has selected to govern
its indemnification procedures. The final ruling no longer requires
banks to include the indemnification provisions in its articles of
association.
Cashier (Section 7.2015)
The proposal changed former Sec. 7.5245 to clarify that the
cashier's duties may be delegated to the president, chief executive
officer, or other officer. One commenter recommended that the OCC
change references to the board of directors to a ``duly designated
officer.'' The OCC agrees with this recommendation and, consistent with
the OCC's continuing effort to reduce unnecessary regulatory burden,
changes the final ruling to permit a duly designated officer to assign
duties previously performed by the bank's cashier.
Facsimile Signatures on Bank Stock Certificates (Section 7.2017)
The proposal revised former Sec. 7.6010 to clarify that facsimile
signatures include electronic means of signature. One commenter
recommended further relief from administrative burden by deleting all
references to ``seals'' and ``corporate seals'' in the corporate
[[Page 4857]]
governance section, including the reference proposed in Sec. 7.2017.
Although the OCC recognizes the need to reduce administrative burden,
12 U.S.C. 52 requires every national bank stock certificate to be
sealed with the seal of the association. Therefore, the OCC adopts this
section as proposed.
Acquisition and Holding of Shares as Treasury Stock (Section 7.2020)
The proposal added a new section to address a national bank's
acquisition and holding of shares as treasury stock. The proposal
explained that pursuant to the authority and procedures of 12 U.S.C.
59, a national bank may acquire its outstanding shares and hold them
for a reasonable period as treasury stock, as long as the acquisition
and retention of the shares is for a legitimate corporate purpose.
Because 12 U.S.C. 59 requires OCC approval and a two-thirds vote of
shareholders for a reduction in capital, there is less risk of improper
use of treasury stock. The OCC notes, however, that it would not be
permissible for a national bank to acquire and hold treasury stock for
speculation or as a means of bypassing some requirement or obligation
under the Federal banking laws. Accordingly, the final ruling adds
language providing that it would not be permissible for a national bank
to acquire or hold treasury stock for speculation.
One commenter expressed concern that the term ``reasonable period''
is too ambiguous. The commenter contended that as long as the bank
complies with 12 U.S.C. 59 regarding the repurchase of outstanding
shares, there is no reason that a national bank may not hold treasury
stock for as long as the bank sees fit. The OCC agrees with the
commenter's suggestion. As long as the acquisition and retention of the
shares fulfills a legitimate corporate need, the bank may continue to
hold the shares. Therefore, the final ruling does not include the term
``reasonable period'' but clarifies that the retention of the shares
must continue, on an ongoing basis, to be for a legitimate corporate
purpose.
Bank Hours and Closings (Section 7.3000)
The proposal revised current Sec. 7.7434 to provide more
comprehensive guidance regarding bank hours and closings. Proposed
Sec. 7.3000(a) maintained the general requirement that a national
bank's board of directors is responsible for establishing a schedule of
business hours independently of other banks.
Proposed Sec. 7.3000(b) informed national banks that the
Comptroller of the Currency (Comptroller), a state or a legally
authorized state official may declare a day to be a legal holiday for
emergency reasons. Proposed Sec. 7.3000(b) also set forth examples to
clarify circumstances under which a national bank may remain closed.
Proposed Sec. 7.3000(c) also provided that a state or a legally
authorized state official may declare a day a legal holiday for
ceremonial reasons, and that a national bank may choose to remain open
or closed on these holidays.
Finally, proposed Sec. 7.3000(d) reminded national banks to look to
applicable law to determine if they may incur liability for closing.
Several commenters requested the OCC to broaden the authority to
close a bank or its branch offices. For example, one commenter
suggested including provisions allowing a bank office to close if a
snow emergency is declared by local authorities. Another commenter
suggested following provisions in New York law that permit bank
officers to independently protect their institutions by closing offices
under certain conditions, provided at least one office remains open.
Twelve U.S.C. 95 clearly authorizes only the Comptroller, a state,
or a state official to designate a day as a legal holiday for emergency
reasons. Nonetheless, the OCC recognizes the practical concerns raised
by the commenters. The ruling attempts to delineate certain emergency
conditions under which the Comptroller will act to authorize the
closing of bank offices. The OCC does not intend for 12 U.S.C. 95 or
the ruling to preclude a bank from asserting defenses, such as
impossibility of performance, if compelled to close due to
circumstances beyond the bank's control.
Sharing Space and Employees (Section 7.3001)
The proposal revised former Sec. 7.7516 to incorporate current OCC
positions on sharing space and employees. Among other things, the
proposal clarified that banks may lease excess space in bank premises
or share space with businesses other than banks and other financial
institutions. The proposal also clarified the OCC's position on a
national bank sharing employees with businesses with which it shares
space. Finally, the proposal summarized the supervisory conditions that
a bank should address in these arrangements, and proposed
Sec. 7.3001(d) identified legal issues a bank should consider when
entering into these arrangements. The proposal requested commenters to
address whether the listed items are appropriate and if the OCC should
identify other considerations in lieu of, or in addition to, those
described in the proposal.
The OCC received 13 comments addressing this section. Several
commenters requested the OCC to clarify whether there are any
limitations on the type of business with which the bank may lease or
share space. The proposal and the final ruling make clear that a bank
may lease excess space in bank premises to one or more businesses.
Similarly, a bank may share space jointly held with one or more other
businesses. Each of these arrangements is subject to supervisory
conditions and legal requirements. However, the ruling does not impose
limitations on the type of activity that the other business engages in
other than that it cannot adversely affect the safety and soundness of
the bank.
One commenter disagreed with the supervisory conditions in proposed
Sec. 7.3001(c) (6) and (7) that require the national bank to ensure
that (1) the activities of the other business do not affect the safety
and soundness of the bank, and (2) the activities of shared employees
are consistent with applicable laws and regulations that pertain to
agents or employees of such other businesses. This commenter asserted
that this would impose inconsistent and duplicative requirements on
brokerage firms and, in the case of the latter requirement, impose new
obligations on national banks to monitor compliance with securities
laws and other regulations by broker-dealers and dual employees of
broker-dealers.
The OCC continues to believe that the importance of maintaining a
safe and sound national bank system requires banks to ensure that the
activities of businesses with which they share premises will not
adversely affect bank safety and soundness. Therefore, the OCC retains
the requirement contained in proposed Sec. 7.3001(c)(6). However, the
OCC did not intend for national banks to monitor compliance on an
ongoing basis with all applicable laws affecting broker-dealers or
other entities with which the bank shares space or employees.
Therefore, the OCC has changed proposed Sec. 7.3001(c)(7) to clarify
that a national bank should take steps to ensure that shared employees,
or the entity for which they perform services, are duly licensed or
meet applicable qualification requirements for the activities in
question.
One commenter sought clarification as to whether these supervisory
conditions are consistent with, or in addition to, the Interagency
Statement on Retail Sales of Nondeposit Investment Products (February
15, 1994)
[[Page 4858]]
(Statement).4 A number of the supervisory conditions incorporate
principal elements of the Statement. However, banks should consult any
applicable component of the Statement as a source of guidance in
structuring these arrangements.
\4\ Available upon request from the OCC Communications Division,
250 E Street, SW, Washington, DC 20219, (202) 874-4700.
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Books and Records of National Banks (Section 7.4000)
The proposal addressed the exclusive examination authority of the
OCC. The ruling clarified that under 12 U.S.C. 484, state authority to
review the books and records of a national bank is limited to those
circumstances in which there is reasonable cause to believe that the
bank has failed to comply with applicable state unclaimed property and
escheat laws. The comments generally supported the proposal, with two
commenters recommending that the OCC clarify the second sentence of
Sec. 7.4000(b) by adding the ``filing of reports with state
regulators'' to the list of prohibited state-imposed requirements. The
OCC has determined that rather than adopting the specific suggested
revision, the OCC will continue to consider this issue on a case-by-
case basis. Therefore, the OCC adopts the final ruling substantially as
proposed with minor revisions to the first sentence of Sec. 7.4000(a).
Charging Interest at Rates Permitted Competing Institutions; Charging
Interest to Corporate Borrowers (Section 7.4001)
Under 12 U.S.C. 85, a national bank may charge interest at the
highest rate allowed to competing lenders by the state where the bank
is located without regard to the location of the borrower. Thus, the
statute permits a national bank to ``export'' to customers in other
states the rate of ``interest'' allowed by the state in which the bank
is located. The proposal defined the term ``interest'' in 12 U.S.C. 85
to reflect current case law. The proposed definition also reflected OCC
interpretive opinions on the types of fees and charges that are
included and not included in the meaning of the term. The proposal
provided non-exclusive lists of specific fees that are ``interest''
(for example, numerical periodic rates, late fees, not sufficient funds
(NSF) fees, overlimit fees, annual fees, cash advance fees, and
membership fees) and that ordinarily are not ``interest'' (for example,
appraisal fees, premiums and commissions on insurance guaranteeing
repayment, finders' fees, fees for document preparation or
notarization, or fees incurred to obtain credit reports).
Whether a particular fee or charge is properly characterized as
``interest'' subject to exportation has been the subject of litigation
in a number of jurisdictions,5 and the OCC received many comments
from parties on both sides of the issue. On one hand, certain consumer
groups and attorneys representing class action suits opposed the
proposal. These groups asserted that the proposed definition is
contrary to the accepted meaning of the term ``interest,'' and is
contrary to consumers' interests. On the other hand, many national
banks supported the proposal because it incorporates clear guidance on
the OCC's position on the issue of what constitutes ``interest'' under
12 U.S.C. 85. The OCC believes that the Federal definition of
``interest'' and the components of interest in the proposal are both
consistent with law and beneficial to national banks and their
customers with respect to interstate lending operations.
\5\ See, e.g., Smiley v. Citibank (South Dakota), N.A., 900 P.2d
690 (Cal. 1995), cert. granted, 64 U.S.L.W. 3500 (U.S. Jan. 19,
1996) (No. 95-860) (holding that the term ``interest'' as used in 12
U.S.C. 85 encompasses late payment fees if such fees are allowed by
a national bank's home state); see also Greenwood Trust Co. v.
Massachusetts, 971 F.2d 818 (1st Cir. 1992), cert. denied, 113 S.
Ct. 974 (1993) (holding that the term ``interest'' as used in
section 521 of the Depository Institutions Deregulation and Monetary
Control Act of 1980 (12 U.S.C. 1831d(a)), a statute modeled on 12
U.S.C. 85, includes late payment fees; in construing the term
``interest'' in 12 U.S.C. 1831d(a), the court concluded that these
parallel sections should be read in pari materia). Contra Sherman v.
Citibank (South Dakota), N.A., No. A-102-94, 1005 WL 710414 (N.J.
Nov. 28, 1995), pet. for cert. filed, 64 U.S.L.W. 3439 (U.S. Dec.
21, 1995) (No. 95-991) (holding that the term ``interest'' as used
in 12 U.S.C. 85 does not include late payment fees).
---------------------------------------------------------------------------
The OCC also received comments from Arkansas trade associations and
the Arkansas congressional delegation expressing concern that the
proposed Federal definition of ``interest'' might be misinterpreted to
require the inclusion of certain charges that are ``interest'' under
the Federal definition, but not so under Arkansas law, when calculating
the maximum effective yield permitted by Arkansas law. The commenters
noted that, if the OCC adopts this interpretation, some loans now
acceptable under Arkansas usury law could be found to be usurious. The
OCC agrees that the language of the proposal is potentially confusing
and might be interpreted mistakenly to affect the definition of
``interest'' in the Arkansas usury law (which, for example, permits
banks to charge late fees, but does not include those fees as
``interest'' in calculating the maximum effective yield).
The definition of interest in Sec. 7.4001 is intended to define
``interest'' for purposes of determining if a particular charge is
subject to 12 U.S.C. 85. Charges that fall within the Federal
definition of ``interest'' are subject to 12 U.S.C. 85 and its ``most
favored lender'' and exportation rules. The fact that a charge is not
labeled ``interest'' under a particular state law does not necessarily
mean that it is impermissible, however.
Section 7.4001(b) clarifies that, under the ruling (and 12 U.S.C.
85), one looks to state law to determine what lending charges are
permitted for the most favored lender, and thus, also for national
banks under 12 U.S.C. 85. However, the Federal definition of
``interest'' generally does not affect state law definitions of
``interest'' or the manner in which state law calculates the amount of
interest being charged. For example, if late fees are not interest
under state law where the national bank is located but state law allows
late fees, then a national bank located in that state may charge late
fees to its intrastate customers. The national bank could also charge
the fees to its interstate customers because the fees are ``interest''
under the Federal definition and an allowable charge under state law
where the national bank is located. However, the late fees would not be
treated as interest for purposes of evaluating compliance with state
usury limitations because state law excludes late fees when calculating
the maximum interest that lending institutions may charge under those
limitations.
The final ruling addresses the concern raised by the Arkansas
commenters regarding the effect of the Federal definition of interest
on state law. The OCC has added to Sec. 7.4001 a new paragraph (c) that
includes a clarifying sentence confirming that the Federal definition
of the term interest does not change a state's definition of interest
(nor how the state definition of interest is used) solely for purposes
of state law. Paragraph (c) of Sec. 7.4001 also provides the example
described in the immediately preceding paragraph of this preamble to
illustrate this concept. The final ruling is substantially identical to
the proposal, with the addition discussed above. In addition, the
reference to ``Morris Plan banks'' that appeared in the last sentence
of proposed Sec. 7.4001(b) has been removed as obsolete. Finally,
paragraph (c), ``Usury,'' in the proposal has been redesignated as
paragraph (d) in the final ruling.
Most courts interpreting 12 U.S.C. 85 have concluded that various
forms of non-percentage-based charges (including such items as late
payment,
[[Page 4859]]
overlimit, and annual fees) for the use of borrowed money fall within
the scope of 12 U.S.C. 85. The final ruling is consistent with OCC
interpretive letters in this area (see, e.g., OCC Interpretive Letter
No. 670 (Feb. 17, 1995), reprinted in [1994-1995 Transfer Binder] Fed.
Banking L. Rep. (CCH) para. 83,618, and the letters cited therein) and
reflects the position the OCC has taken in amicus curiae briefs in
litigation pending in many state and Federal courts (see, e.g., OCC
brief filed in the Supreme Court of Pennsylvania in Bank One, Columbus,
N.A. v. Mazaika, Nos. 1995-31 and 1995-33 (July 17, 1995) (urging
reversal of Mazaika v. Bank One, Columbus, N.A., 653 A.2d 648 (Pa.
Super. Ct. 1994) (en banc), appeal granted, 659 A.2d 557 (Pa. 1995)).
Recently, the California Supreme Court upheld the ability of a
national bank to charge certain fees as a component of ``interest'' and
cited the OCC's recent interpretive opinions, as well as proposed
Sec. 7.4001, as consistent with the court's reasoning. Smiley v.
Citibank (South Dakota), N.A., 900 P.2d 690 (Cal. 1995), cert. granted,
64 U.S.L.W. 3500 (U.S. Jan. 19, 1996) (No. 95-860) (holding that the
term ``interest'' as used in 12 U.S.C. 85 encompasses late payment
fees, if such fees are allowed by a national bank's home state). See
also Copeland v. MBNA America Bank, N.A., 907 P.2d 87 (Colo. 1995) (en
banc), pet. for cert. filed, 64 U.S.L.W. 3469 (U.S. Dec. 28, 1995) (No.
95-1056); Richardson v. Citibank (South Dakota), N.A., No. 94SC670,
1995 Colo. LEXIS 767 (Colo. Dec. 18, 1995) (en banc); Spellman v.
Meridian Bank (Delaware), Nos. 94-3203-3204, 94-3215-3218, 1995 U.S.
App. LEXIS 37149 (3d Cir. Dec. 29, 1995).
However, the Supreme Court of New Jersey also issued a recent
decision concluding that ``interest'' as used in 12 U.S.C. 85 does not
include late payment fees. Sherman v. Citibank (South Dakota), N.A.,
No. A-102-94, 1005 WL 710414 (N.J. Nov. 28, 1995), pet. for cert.
filed, 64 U.S.L.W. 3439 (U.S. Dec. 21, 1995) (No. 95-991). The decision
of the New Jersey Supreme Court in Sherman conflicts with the decisions
of the California Supreme Court in Smiley, the Colorado Supreme Court
in Copeland and Richardson, and the U.S. Court of Appeals for the Third
Circuit in Spellman, and the earlier decision of the First Circuit in
Greenwood Trust. The U.S. Supreme Court recently granted certiorari in
Smiley to resolve the conflict on an expedited basis.
As noted in the proposal, the ruling is not intended to be a
comprehensive treatment of the issue, and other fees or charges may
also be found to be components of interest.
National Bank Charges (Section 7.4002)
The proposal responded to concerns raised by Congress regarding the
scope of Federal preemption reflected in the former version of this
ruling. The conference report to the Riegle-Neal Interstate Banking and
Branching Efficiency Act of 1994, H.R. Conf. Rep. No. 651, 103rd Cong.,
2d Sess. 54 (1994), urged the OCC to review former Sec. 7.8000 to
determine if it should be withdrawn or revised. The conferees expressed
the view that the OCC had applied preemption principles in an overly
broad manner with respect to state laws that prohibit, limit, or
restrict deposit account service charges imposed by a national bank. In
addition, the conference report cited Perdue v. Crocker Nat'l Bank, 702
P.2d 503 (Cal. 1985), cert. dismissed, 475 U.S. 1100 (1986), which held
that Sec. 7.8000 is not a valid finding of Federal preemption, in part,
because Congress had not established a comprehensive Federal statutory
scheme governing the taking of deposits.
The proposal revised the ruling to state that the OCC will consider
on a case-by-case basis whether a national bank may establish a
particular charge or fee that is in conflict with a state law, and
that, in issuing an opinion on whether a particular state law is
preempted, the OCC will employ the preemption principles derived from
the Supremacy Clause of the United States Constitution and judicial
precedent.
The OCC received 26 comments on proposed Sec. 7.4002. Ten
commenters expressed dissatisfaction with the OCC's proposal to
evaluate state laws on a case-by-case basis. Seven of these commenters,
mostly large banks, specifically urged the OCC to either retain
Sec. 7.8000 or otherwise generally preempt state law limitations or
prohibitions on fees and charges. These commenters stated that the
conference report, alone, without clear legislative action, does not
invalidate Sec. 7.8000's general preemption. After careful review of
the comments, the OCC has determined to adopt Sec. 7.4002 substantially
in the form proposed, with certain revisions discussed below.
Ten commenters also expressed concern over the OCC's statement in
the proposal that a national bank may charge customers ``reasonable''
charges and fees on dormant accounts, for credit reports or
investigations (Sec. 7.4002(a)), and for deposit account service
charges and loan-related fees generally (Sec. 7.4002(b)). These
commenters asserted that inclusion of the term ``reasonable'' in
connection with those areas adds uncertainty to their meaning and will
provide a basis for litigation over whether charges and fees are
``unreasonable'' and, therefore, impermi
FR Doc. 96-2903 Interpretive Rulings
ssible under Sec. 7.4002.
The OCC notes that previous interpretive rulings on service charges
on dormant accounts and fees for credit reports or investigations
contained a ``reasonable'' standard. Therefore, for those fees and
charges, the final ruling continues this standard. However, the OCC
also recognizes the commenters' concerns. The final ruling clarifies,
in Sec. 7.4002(b), the intent of the proposal that banks have
discretion in setting the amount of charges and fees, and that any
charge or fee is ``reasonably'' established if the bank considered the
factors enumerated in the final ruling.
Some commenters also asserted that, if the references to ``loan-
related fees'' are included in the final ruling, the OCC should clarify
that these fees do not include fees that are components of ``interest''
under Sec. 7.4001. The OCC agrees with this comment. Therefore, the
final ruling omits the phrase ``loan-related fees'' wherever it appears
and instead refers to ``non-interest charges and fees'' and includes
deposit account service charges within non-interest charges and fees.
For additional clarity, the final ruling adds a new paragraph (c),
``Interest,'' that provides that charges and fees that are ``interest''
within the meaning of 12 U.S.C. 85 are governed by Sec. 7.4001 and not
by Sec. 7.4002. Proposed Sec. 7.4002(c) and (d), ``State law'' and
``National bank as fiduciary,'' respectively, have been redesignated as
paragraphs (d) and (e), respectively, in the final ruling.
The OCC also notes that the proposal's listing of the standards for
consideration in setting charges and fees inadvertently omitted the
factor appearing in former Sec. 7.8000(b)(2) on the deterrence of
misuse by customers of banking services. The final ruling incorporates
this factor.
State Licensing of National Banks
The proposal invited public comment on whether the OCC should
propose a specific ruling addressing the applicability of state
licensing requirements to national banks. The proposal did not contain
any specific language for an interpretive ruling but noted in the
preamble the OCC's longstanding position that the authority of a
national bank to exercise powers authorized for national banks under
Federal law cannot be negated by state licensing requirements. The
proposal also restated the principal elements of
[[Page 4860]]
Federal preemption analysis as articulated by the courts.
The OCC received 41 comments addressing this issue. Approximately
half of the commenters opposed issuing a ruling that they assumed would
attempt to preempt state licensing practices. These commenters cited
the OCC's lack of authority to issue a ruling, current litigation and
legislation on this matter, and arguments that states are better placed
to protect consumer interests. Commenters supporting a ruling noted
that it would promote competition by removing disparate treatment of
national banks located in different states. Due to the variety of state
laws that could be implicated and the complexity of the issues
presented, the OCC has decided not to address this area generically at
this time.
Other Sections Adopted in the Final Rule
The proposal contained a number of rulings that were not
substantively changed from the former rule. The OCC received some
comments addressing various aspects of these rulings. The OCC has
reviewed these comments and has decided not to make any changes to most
of these sections.
In addition, there are a number of rulings for which the OCC
proposed changes but did not receive any substantive comments. These
rulings also are adopted in the final rule as proposed or with
nonsubstantive stylistic edits.
The following is a list of these rulings:
Section 7.1001--National bank acting as general insurance agent;
Section 7.1007--Acceptances;
Section 7.1008--Preparing income tax returns for customers or
public;
Section 7.1009--National bank holding collateral stock as
nominee;
Section 7.1012--Messenger service;
Section 7.1014--Sale of money orders at nonbanking outlets;
Section 7.1015--Receipt of stock from a small business
investment company;
Section 7.1018--Automatic payment plan account;
Section 7.2002--Director or attorney as proxy;
Section 7.2003--Annual meeting for election of directors;
Section 7.2006--Cumulative voting in election of directors;
Section 7.2009--Quorum of the board of directors; proxies not
permissible;
Section 7.2012--President as director; chief executive officer;
Section 7.2013--Fidelity bonds covering officers and employees;
Section 7.2016--Restricting transfer of stock and record dates;
Section 7.2018--Lost stock certificates;
Section 7.2019--Loans secured by a bank's own shares;
Section 7.2021--Preemptive rights; and
Section 7.2022--Voting trusts.
Sections Removed From Part 7
The OCC also proposed to remove the following former rulings as
generally unnecessary, outdated or repetitive: Secs. 7.3000, 7.4005,
7.4015, 7.4100, 7.4200, 7.4205, 7.4400, 7.4410, 7.7000, 7.7015, 7.7400,
7.7405, 7.7410, 7.7415, 7.7505, 7.7519, and 7.7590. The OCC received no
comment on these sections, and the final rule removes them. The OCC has
also removed Sec. 7.7355 (regarding debts of affiliates) as it is no
longer necessary.
The following sections are also removed from part 7 or transferred
to 12 CFR part 31 for the reasons stated. This list and the list in the
immediately preceding paragraph do not describe sections that were
incorporated into other sections in part 7.
Section 7.1100--Capital and surplus. This section is no longer
needed.
Section 7.4010--Quorum for shareholders' meeting. This section
merely indicates that the statutes are silent with respect to the
number of shareholders required for a quorum. Therefore, this section
is superseded by the new Sec. 7.2000.
Section 7.5210--Same person holding offices of president and
cashier. There is no legal impediment to one person serving as both
president and cashier. Further, Sec. 7.2015, discusses the assignment
of the cashier's duties and clarifies that the duties of cashier may be
delegated to the president, chief executive officer, or other officer.
Section 7.5220--Contracts of employment. Any employment contract
that is excessive or unreasonable is unsafe and unsound. Therefore, the
current ``reasonable'' standard is necessarily in effect, so it is
unnecessary to reiterate the standard in this interpretive ruling.
Moreover, section 132 of the Federal Deposit Insurance Corporation
Improvement Act of 1991 (FDICIA) (12 U.S.C. 1831p-1), (regarding safety
and soundness standards), and regulations issued by the OCC and other
agencies under section 132 deal with excessive or unreasonable
contracts. See 12 U.S.C. 1831p-1 (c) and (d); 12 CFR part 30.
Section 7.7012--Foreign operations. This section has been removed
and is expected to be incorporated into pending revisions to part 28.
The removal of this section is not intended to imply any change in a
national bank's authority in this area.
Section 7.7115--Insuring lives of bank officers. OCC Banking
Circular 249 covers the relevant issues in more detail and is currently
undergoing review and revision. Therefore, Sec. 7.7115 is removed as
unnecessary.
Sections 7.7360--Loans secured by stock or obligation of an
affiliate, 7.7365--Federal funds transactions between affiliates, and
7.7370--Deposits between affiliated banks. These sections have been
transferred with some stylistic changes to 12 CFR 31.100, 31.101, and
31.102.
Sections 7.7378--Issuance of credit cards, 7.7379--Servicing of
mortgage and other loans as agent. The ability of national banks to
engage in these activities is well established and a specific
interpretive ruling is not needed.
Section 7.7530--Issuance of promissory notes. This section is
removed because it merely restates 12 U.S.C. 24 (Seventh).
Section 7.7540--Reports of condition: Waiver of affiliate reports.
Section 308 of the Riegle Community Development and Regulatory
Improvement Act of 1994, Pub. L. 103-325, 108 Stat. 2160 (Sept. 23,
1994), eliminated the requirement that national banks and their
affiliates periodically publish the reports of condition in a
newspaper. See 12 U.S.C. 161.
The removal or transfer of these sections does not imply any
alteration of the underlying authority for national bank activity. The
interpretive rulings the OCC proposes to remove or transfer are
grounded in statutory authority that remains unchanged.
Other Sections
Finally, the OCC had proposed to move a number of sections to other
parts of title 12. These sections included Sec. 7.6040--Fractional
shares, 7.7570--Separate investment security limitations, and 7.6120--
Dividends payable in property other than cash. These sections have been
retained, with some minor stylistic changes, pending the issuance of
final rules for 12 CFR parts 1 and 5.
Distribution Table
The distribution table indicates where, if applicable, each section
of the former part 7 will appear in the final part 7 or elsewhere.
------------------------------------------------------------------------
Original provision Revised provision Comment
------------------------------------------------------------------------
Sec. 7.1100....... .................... Removed.
Sec. 7.1105....... Sec. 7.1020........ Modified.
Sec. 7.3000....... Sec. 7.1000........ Unchanged.
Sec. 7.3005....... Sec. 7.1000........ Significant change.
Sec. 7.3010....... Sec. 7.1000........ Significant change.
Sec. 7.3100....... Sec. 7.1000........ Significant change.
Sec. 7.3300....... Sec. 7.1000........ Significant change.
Sec. 7.3500....... Sec. 7.1019........ Significant change.
Sec. 7.4000....... Sec. 7.2001........ Significant change.
[[Page 4861]]
Sec. 7.4005....... .................... Removed.
Sec. 7.4010....... .................... Removed.
Sec. 7.4015....... .................... Removed.
Sec. 7.4020....... Sec. 7.2002........ Modified.
Sec. 7.4100....... .................... Removed.
Sec. 7.4105....... Sec. 7.2003........ Significant change.
Sec. 7.4110....... Sec. 7.2004........ Modified.
Sec. 7.4200....... .................... Removed.
Sec. 7.4205....... .................... Removed.
Sec. 7.4210....... Sec. 7.2005........ Significant change.
Sec. 7.4300....... Sec. 7.2006........ Significant change.
Sec. 7.4305....... Sec. 7.2007........ Significant change.
Sec. 7.4400....... .................... Removed.
Sec. 7.4410....... .................... Removed.
Sec. 7.4415....... Sec. 7.2008........ Modified.
Sec. 7.4420....... Sec. 7.2009........ Unchanged.
Sec. 7.4425....... Sec. 7.2010........ Significant change.
Sec. 7.5000....... Sec. 7.2011........ Significant change.
Sec. 7.5010....... Sec. 7.2011........ Significant change.
Sec. 7.5015....... Sec. 7.2011........ Significant change.
Sec. 7.5200....... Sec. 7.2012........ Modified.
Sec. 7.5210....... .................... Removed.
Sec. 7.5215....... Sec. 7.2013........ Unchanged.
Sec. 7.5217....... Sec. 7.2014........ Significant change.
Sec. 7.5220....... .................... Removed.
Sec. 7.5230....... Sec. 7.1000........ Significant change.
Sec. 7.5245....... Sec. 7.2015........ Significant change.
Sec. 7.6005....... Sec. 7.2016........ Modified.
Sec. 7.6010....... Sec. 7.2017........ Significant change.
Sec. 7.6015....... Sec. 7.2018........ Unchanged.
Sec. 7.6025....... Sec. 7.4000........ Significant change.
Sec. 7.6030....... Sec. 7.2019........ Modified.
Sec. 7.6040....... Sec. 7.2023........ Modified.
Sec. 7.6050....... Sec. 7.2021........ Modified.
Sec. 7.6060....... Sec. 7.2022........ Significant change.
Sec. 7.6120....... Sec. 7.2024........ Modified.
Sec. 7.7000....... .................... Removed.
Sec. 7.7010....... Sec. 7.1017........ Significant change.
Sec. 7.7012....... .................... Removed.
Sec. 7.7015....... .................... Removed.
Sec. 7.7016....... Sec. 7.1016........ Significant change.
Sec. 7.7100....... Sec. 7.1001........ Unchanged.
Sec. 7.7115....... .................... Removed.
Sec. 7.7200....... Sec. 7.1002........ Significant change.
Sec. 7.7310....... Sec. 7.4001........ Significant change.
Sec. 7.7312....... Sec. 7.1006........ Significant change.
Sec. 7.7315....... Sec. 7.4002........ Significant change.
Sec. 7.7355....... .................... Removed.
Sec. 7.7360....... .................... Moved (part 31).
Sec. 7.7365....... .................... Moved (part 31).
Sec. 7.7370....... .................... Moved (part 31).
Sec. 7.7378....... .................... Removed.
Sec. 7.7379....... .................... Removed.
Sec. 7.7380....... Sec. 7.1004........ Unchanged.
Sec. 7.7400....... .................... Removed.
Sec. 7.7405....... .................... Removed.
Sec. 7.7410....... .................... Removed.
Sec. 7.7415....... .................... Removed.
Sec. 7.7420....... Sec. 7.1007........ Unchanged.
Sec. 7.7430....... Sec. 7.1008........ Unchanged.
Sec. 7.7434....... Sec. 7.3000........ Significant change.
Sec. 7.7455....... Sec. 7.1009........ Unchanged.
Sec. 7.7482....... Sec. 7.1010........ Modified.
Sec. 7.7485....... Sec. 7.1011........ Modified.
Sec. 7.7490....... Sec. 7.1012........ Modified.
Sec. 7.7495....... Sec. 7.1013........ Significant change.
Sec. 7.7500....... Sec. 7.1014........ Modified.
Sec. 7.7505....... .................... Removed.
Sec. 7.7515....... Sec. 7.4002........ Significant change.
Sec. 7.7516....... Sec. 7.3001........ Significant change.
Sec. 7.7519....... .................... Removed.
Sec. 7.7530....... .................... Removed.
Sec. 7.7535....... Sec. 7.1015........ Unchanged.
Sec. 7.7540....... .................... Removed.
Sec. 7.7560....... Sec. 7.1018........ Modified.
Sec. 7.7570....... Sec. 7.1021........ Unchanged.
Sec. 7.7590....... .................... Removed.
Sec. 7.8000....... Sec. 7.4002........ Significant change.
------------------------------------------------------------------------
Derivation Table
This derivation table illustrates which former sections of part 7
the final sections are based upon.
------------------------------------------------------------------------
Revised provision Original provision Comment
------------------------------------------------------------------------
Sec. 7.1100........ Removed.
Sec. 7.1000...... Secs. 7.3000, Significant change.
7.3005, 7.3010,
7.3100, 7.3300,
7.5230.
Sec. 7.1001...... Sec. 7.7100........ Unchanged.
Sec. 7.1002...... Sec. 7.7200........ Significant change.
Sec. 7.1003...... .................... Added.
Sec. 7.1004...... Sec. 7.7380........ Unchanged.
Sec. 7.1005...... .................... Added.
Sec. 7.1006...... Sec. 7.7312........ Significant change.
Sec. 7.7405........ Removed.
Sec. 7.7410........ Removed.
Sec. 7.7415........ Removed.
Sec. 7.1007...... Sec. 7.7420........ Unchanged.
Sec. 7.1008...... Sec. 7.7430........ Unchanged.
Sec. 7.1009...... Sec. 7.7455........ Unchanged.
Sec. 7.1010...... Sec. 7.7482........ Modified.
Sec. 7.1011...... Sec. 7.7485........ Modified.
Sec. 7.1012...... Sec. 7.7490........ Modified.
Sec. 7.1013...... Sec. 7.7495........ Significant change.
Sec. 7.1014...... Sec. 7.7500........ Modified.
Sec. 7.7530........ Removed.
Sec. 7.1015...... Sec. 7.7535........ Unchanged.
Sec. 7.1016...... Sec. 7.7016........ Significant change.
Sec. 7.1017...... Sec. 7.7010........ Significant change.
Sec. 7.1018...... Sec. 7.7560........ Unchanged.
Sec. 7.1019...... Sec. 7.3500........ Significant change.
Sec. 7.1020...... Sec. 7.1105........ Modified.
Sec. 7.1021...... Sec. 7.7570........ Unchanged.
Sec. 7.2000...... .................... Added.
Sec. 7.2001...... Sec. 7.4000........ Significant change.
Sec. 7.4005........ Removed.
Sec. 7.4010........ Removed.
Sec. 7.4015........ Removed.
Sec. 7.2002...... Sec. 7.4020........ Modified.
Sec. 7.4100........ Removed.
Sec. 7.2003...... Sec. 7.4105........ Significant change.
Sec. 7.2004...... Sec. 7.4110........ Modified.
Sec. 7.4200........ Removed.
Sec. 7.4205........ Removed.
Sec. 7.2005...... Sec. 7.4210........ Significant change.
Sec. 7.2006...... Sec. 7.4300........ Significant change.
Sec. 7.2007...... Sec. 7.4305........ Significant change.
Sec. 7.4400........ Removed.
Sec. 7.4410........ Removed.
Sec. 7.2008...... Sec. 7.4415........ Modified.
Sec. 7.2009...... Sec. 7.4420........ Unchanged.
Sec. 7.2010...... Sec. 7.4425........ Significant change.
Sec. 7.2011...... Secs. 7.5000, Significant change.
7.5010, 7.5015.
Sec. 7.2012...... Sec. 7.5200........ Modified.
Sec. 7.5210........ Removed.
Sec. 7.2013...... Sec. 7.5215........ Unchanged.
Sec. 7.2014...... Sec. 7.5217........ Significant change.
Sec. 7.5220........ Removed.
Sec. 7.2015...... Sec. 7.5245........ Significant change.
Sec. 7.2016...... Sec. 7.6005........ Modified.
Sec. 7.2017...... Sec. 7.6010........ Significant change.
Sec. 7.2018...... Sec. 7.6015........ Unchanged.
Sec. 7.2019...... Sec. 7.6030........ Modified.
Sec. 7.2020...... .................... Added.
Sec. 7.2021...... Sec. 7.6050........ Modified.
Sec. 7.2022...... Sec. 7.6060........ Significant change.
Sec. 7.2023...... Sec. 7.6040........ Modified.
Sec. 7.2024...... Sec. 7.6120........ Unchanged.
Sec. 7.7000........ Removed.
Sec. 7.7012........ Removed.
Sec. 7.7015........ Removed.
Sec. 7.7115........ Removed.
Sec. 7.7355........ Removed.
Sec. 7.7360........ Moved (part 31).
Sec. 7.7365........ Moved (part 31).
Sec. 7.7370........ Moved (part 31).
Sec. 7.7378........ Removed.
Sec. 7.7379........ Removed.
Sec. 7.7400........ Removed.
Sec. 7.3000...... Sec. 7.7434........ Significant change.
Sec. 7.7505........ Removed.
Sec. 7.3001...... Sec. 7.7516........ Significant change.
Sec. 7.7519........ Removed.
Sec. 7.7540........ Removed.
Sec. 7.7590........ Removed.
Sec. 7.4000...... Sec. 7.6025........ Significant change.
Sec. 7.4001...... Sec. 7.7310........ Significant change.
Sec. 7.4002...... Secs. 7.7315, Significant change.
7.7515, 7.8000.
------------------------------------------------------------------------
Regulatory Flexibility Act
It is hereby certified that this regulation will not have a
significant economic impact on a substantial number of small entities.
Accordingly, a regulatory flexibility analysis is not required. This
regulation will reduce the regulatory burden on national banks,
regardless of size, by simplifying and clarifying existing regulatory
requirements.
Executive Order 12866
The OCC has determined that the final rule is not a significant
regulatory action under Executive Order 12866.
Unfunded Mandates Reform Act of 1995
Section 202 of the Unfunded Mandates Reform Act of 1995, Pub. L.
104-4, 109 Stat. 48 (March 22, 1995) (Unfunded Mandates Act), requires
that an agency prepare a budgetary impact statement before promulgating
a rule that includes a Federal mandate that may result in the
expenditure by state, local, and tribal governments, in the aggregate,
or by the private sector, of $100 million or more in any one year. If a
budgetary impact statement is required, section 205 of the Unfunded
Mandates Act also requires an agency to identify and consider a
reasonable number of regulatory alternatives before
[[Page 4862]]
promulgating a rule. Because the OCC has determined that the final rule
will not result in expenditures by state, local, and tribal
governments, or by the private sector, of more than $100 million in any
one year, the OCC has not prepared a budgetary impact statement or
specifically addressed the regulatory alternatives considered.
Nevertheless, as discussed in the preamble, the final rule has the
effect of reducing burden.
Paperwork Reduction Act of 1995
The collection of information requirements contained in this final
rule have received approval from the Office of Management and Budget in
accordance with the Paperwork Reduction Act of 1995 (44 U.S.C.
3507(d)), under OMB control number (1557-0204). Comments on the
collection of information should be sent to the Office of Management
and Budget, Paperwork Reduction Project 1557-0204, Washington, DC
20503, with copies to the Legislative and Regulatory Activities
Division 1557-0204, Office of the Comptroller of the Currency, 250 E
Street, SW., Washington, DC 20219. The OCC will submit the collection
of information requirements contained in this final rule for renewal of
OMB approval following publication of this final rule.
The collection of information requirements in this rule are found
in 12 CFR 7.1000(d)(1), 7.1014, 7.2000(b), 7.2004, and 7.2014(b). The
collections of information are necessary for regulatory and examination
purposes, for national banks to ensure their compliance with Federal
law and regulations, and to evidence bank compliance with various
regulatory requirements. National banks use the information to ensure
their compliance with applicable Federal banking law and regulations.
This information assists bank management in its safe and sound
operation of the bank. The OCC uses the information in the scheduling
and conduct of bank examinations and as an audit tool to verify bank
compliance with law and regulations.
Respondents are not required to respond to the foregoing collection
of information unless it displays a currently valid OMB control number.
The likely respondents are national banks.
Estimated average annual burden hours per recordkeeper: 1.7.
Estimated number of recordkeepers: 2,430.
Estimated total annual recordkeeping burden: 4,156.
Start-up costs to respondents: None.
List of Subjects
12 CFR Part 7
Credit, Insurance, Investments, National banks, Reporting and
recordkeeping requirements, Securities, Surety bonds.
12 CFR Part 31
Credit, National banks, Reporting and recordkeeping requirements.
Authority and Issuance
For the reasons set out in the preamble, chapter I of title 12 of
the Code of Federal Regulations, is amended as follows:
1. Part 7 is revised to read as follows:
PART 7--INTERPRETIVE RULINGS
Subpart A--Bank Powers
Sec.
7.1000 National bank ownership of property.
7.1001 National bank acting as general insurance agent.
7.1002 National bank acting as finder.
7.1003 Money lent at banking offices or at other than banking
offices.
7.1004 Loans originating at other than banking offices.
7.1005 Credit decisions at other than banking offices.
7.1006 Loan agreement providing for a share in profits, income, or
earnings or for stock warrants.
7.1007 Acceptances.
7.1008 Preparing income tax returns for customers or public.
7.1009 National bank holding collateral stock as nominee.
7.1010 Postal service by national bank.
7.1011 National bank acting as payroll issuer.
7.1012 Messenger service.
7.1013 Debt cancellation contracts.
7.1014 Sale of money orders at nonbanking outlets.
7.1015 Receipt of stock from a small business investment company.
7.1016 Independent undertakings to pay against documents.
7.1017 National bank as guarantor or surety on indemnity bond.
7.1018 Automatic payment plan account.
7.1019 Furnishing of products and services by electronic means and
facilities.
7.1020 Purchase of open accounts.
7.1021 Separate investment security limitations.
Subpart B--Corporate Practices
7.2000 Corporate governance procedures.
7.2001 Notice of shareholders' meetings.
7.2002 Director or attorney as proxy.
7.2003 Annual meeting for election of directors.
7.2004 Honorary directors or advisory boards.
7.2005 Ownership of stock necessary to qualify as director.
7.2006 Cumulative voting in election of directors.
7.2007 Filling vacancies and increasing board of directors other
than by shareholder action.
7.2008 Oath of directors.
7.2009 Quorum of the board of directors; proxies not permissible.
7.2010 Directors' responsibilities.
7.2011 Compensation plans.
7.2012 President as director; chief executive officer.
7.2013 Fidelity bonds covering officers and employees.
7.2014 Indemnification of institution-affiliated parties.
7.2015 Cashier.
7.2016 Restricting transfer of stock and record dates.
7.2017 Facsimile signatures on bank stock certificates.
7.2018 Lost stock certificates.
7.2019 Loans secured by a bank's own shares.
7.2020 Acquisition and holding of shares as treasury stock.
7.2021 Preemptive rights.
7.2022 Voting trusts.
7.7023 Fractional shares.
7.2024 Dividends payable in property other than cash.
Subpart C--Bank Operations
7.3000 Bank hours and closings.
7.3001 Sharing space and employees.
Subpart D--Preemption
7.4000 Books and records of national banks.
7.4001 Charging interest at rates permitted competing institutions;
charging interest to corporate borrowers.
7.4002 National bank charges.
Authority: 12 U.S.C. 1 et seq. and 93a.
Subpart A--Bank Powers
Sec. 7.1000 National bank ownership of property.
(a) Investment in real estate necessary for the transaction of
business--(1) General. Under 12 U.S.C. 29(First), a national bank may
invest in real estate that is necessary for the transaction of its
business.
(2) Type of real estate. For purposes of 12 U.S.C. 29(First), this
real estate includes:
(i) Premises that are owned or occupied (or to be occupied, if
under construction) by the bank, its branches, or its consolidated
subsidiaries;
(ii) Real estate acquired and intended, in good faith, for use in
future expansion;
(iii) Parking facilities that are used by customers or employees of
the bank, its branches, and its consolidated subsidiaries;
(iv) Residential property for the use of bank officers or employees
who are:
(A) Located in remote areas where suitable housing at a reasonable
price is not readily available; or
(B) Temporarily assigned to a foreign country, including foreign
nationals
[[Page 4863]]
temporarily assigned to the United States; and
(v) Property for the use of bank officers, employees, or customers,
or for the temporary lodging of such persons in areas where suitable
commercial lodging is not readily available, provided that the purchase
and operation of the property qualifies as a deductible business
expense for Federal tax purposes.
(3) Permissible means of holding. A national bank may acquire and
hold real estate under this paragraph (a) by any reasonable and prudent
means, including ownership in fee, a leasehold estate, or in an
interest in a cooperative. The bank may hold this real estate directly
or through one or more subsidiaries. The bank may organize a bank
premises subsidiary as a corporation, partnership, or similar entity
(e.g., a limited liability company).
(b) Fixed assets. A national bank may own fixed assets necessary
for the transaction of its business, such as fixtures, furniture, and
data processing equipment.
(c) Investment in bank premises--(1) Investment limitation;
approval. 12 U.S.C. 371d governs when OCC approval is required for
national bank investment in bank premises.
(2) Option to purchase. An unexercised option to purchase bank
premises or stock in a corporation holding bank premises is not an
investment in bank premises. A national bank must receive OCC approval
to exercise the option if the price of the option and the bank's other
investments in bank premises exceed the amount of the bank's capital
stock.
(d) Other real property--(1) Lease financing of public facilities.
A national bank may purchase or construct a municipal building, school
building, or other similar public facility and, as holder of legal
title, lease the facility to a municipality or other public authority
having resources sufficient to make all rental payments as they become
due. The lease agreement must provide that the lessee will become the
owner of the building or facility upon the expiration of the lease.
(2) Purchase of employee's residence. To facilitate the efficient
use of bank personnel, a national bank may purchase the residence of an
employee who has been transferred to another area in order to spare the
employee a loss in the prevailing real estate market. The bank must
arrange for early divestment of title to such property.
Sec. 7.1001 National bank acting as general insurance agent.
Pursuant to 12 U.S.C. 92, a national bank may act as an agent for
any fire, life, or other insurance company in any place the population
of which does not exceed 5,000 inhabitants. This provision is
applicable to any office of a national bank when the office is located
in a community having a population of less than 5,000, even though the
principal office of such bank is located in a community whose
population exceeds 5,000.
Sec. 7.1002 National bank acting as finder.
(a) General. A national bank may act as a finder in bringing
together a buyer and seller.
(b) Qualification. Acting as a finder includes, without limitation,
identifying potential parties, making inquiries as to interest,
introducing or arranging meetings of interested parties, and otherwise
bringing parties together for a transaction that the parties themselves
negotiate and consummate. Acting as a finder does not include
activities that would characterize the bank as a broker under
applicable Federal law.
(c) Advertisement and fee. Unless otherwise prohibited, a national
bank may advertise the availability of, and accept a fee for, the
services provided pursuant to this section.
Sec. 7.1003 Money lent at banking offices or at other than banking
offices.
(a) General. For purposes of what constitutes a branch within the
meaning of 12 U.S.C. 36(j) and 12 CFR 5.30, ``money'' is deemed to be
``lent'' only at the place, if any, where the borrower in-person
receives loan proceeds directly from bank funds:
(1) From the lending bank or its operating subsidiary; or
(2) At a facility that is established by the lending bank or its
operating subsidiary.
(b) Receipt of bank funds representing loan proceeds. Loan proceeds
directly from bank funds may be received by a borrower in person at a
place that is not the bank's main office and is not licensed as a
branch without violating 12 U.S.C. 36, 12 U.S.C. 81 and 12 CFR 5.30,
provided that a third party is used to deliver the funds and the place
is not established by the lending bank or its operating subsidiary. A
third party includes a person who satisfies the requirements of
Sec. 7.1012(c)(2), or one who customarily delivers loan proceeds
directly from bank funds under accepted industry practice, such as an
attorney or escrow agent at a real estate closing.
Sec. 7.1004 Loans originating at other than banking offices.
(a) General. A national bank may use the services of, and
compensate persons not employed by, the bank for originating loans.
(b) Approval. An employee or agent of a national bank or of its
operating subsidiary may originate a loan at a site other than the main
office or a branch office of the bank. This action does not violate 12
U.S.C. 36 and 12 U.S.C. 81 if the loan is approved and made at the main
office or a branch office of the bank or at an office of the operating
subsidiary located on the premises of, or contiguous to, the main
office or branch office of the bank.
Sec. 7.1005 Credit decisions at other than banking offices.
A national bank and its operating subsidiary may make a credit
decision regarding a loan application at a site other than the main
office or a branch office of the bank without violating 12 U.S.C. 36
and 12 U.S.C. 81, provided that ``money'' is not deemed to be ``lent'
at those other sites within the meaning of Sec. 7.1003.
Sec. 7.1006 Loan agreement providing for a share in profits, income,
or earnings or for stock warrants.
A national bank may take as consideration for a loan a share in the
profit, income, or earnings from a business enterprise of a borrower. A
national bank also may take as consideration for a loan a stock warrant
issued by a business enterprise of a borrower, provided that the bank
does not exercise the warrant. The share or stock warrant may be taken
in addition to, or in lieu of, interest. The borrower's obligation to
repay principal, however, may not be conditioned upon the value of the
profit, income, or earnings of the business enterprise or upon the
value of the warrant received.
Sec. 7.1007 Acceptances.
A national bank is not limited in the character of acceptances it
may make in financing credit transactions. Bankers' acceptances may be
used for such purpose, since the making of acceptances is an essential
part of banking authorized by 12 U.S.C. 24.
Sec. 7.1008 Preparing income tax returns for customers or public.
A national bank may not serve as an expert tax consultant. However,
a national bank may assist its customers in preparing their tax
returns, either gratuitously or for a reasonable fee.
[[Page 4864]]
Sec. 7.1009 National bank holding collateral stock as nominee.
A national bank that accepts stock as collateral for a loan may
have such stock transferred to the bank's name as nominee.
Sec. 7.1010 Postal service by national bank.
(a) General. A national bank may maintain and operate a postal
substation on banking premises and receive income from it. The services
performed by the substation are those permitted under applicable rules
of the United States Postal Service and may include meter stamping of
letters and packages, and the sale of related insurance. The bank may
advertise, develop, and extend the services of the substation for the
purpose of attracting customers to the bank.
(b) Postal regulations. A national bank operating a postal
substation shall do so in accordance with the rules and regulations of
the United States Postal Service. The national bank shall keep the
books and records of the substation separate from those of other
banking operations. Under 39 U.S.C. 404 and any regulations issued
pursuant thereto, the United States Postal Service may inspect the
books and records of the substation.
Sec. 7.1011 National bank acting as payroll issuer.
A national bank may disburse to an employee of a customer payroll
funds deposited with the bank by that customer. The bank may disburse
those funds by direct payment to the employee, by crediting an account
in the employee's name at the disbursing bank, or by forwarding funds
to another institution in which an employee maintains an account.
Sec. 7.1012 Messenger service.
(a) Definition. For purposes of this section, a ``messenger
service'' means any service, such as a courier service or armored car
service, used by a national bank and its customers to pick up from, and
deliver to, specific customers at locations such as their homes or
offices, items relating to transactions between the bank and those
customers.
(b) Pick-up and delivery of items constituting nonbranching
activities. Pursuant to 12 U.S.C. 24 (Seventh), a national bank may
establish and operate a messenger service, or use, with its customers,
a third party messenger service. The bank may use the messenger service
to transport items relevant to the bank's transactions with its
customers without regard to the branching limitations set forth in 12
U.S.C. 36, provided the service does not engage in branching functions
within the meaning of 12 U.S.C. 36(j). In establishing or using such a
facility, the national bank may establish terms, conditions, and
limitations consistent with this section and appropriate to assure
compliance with safe and sound banking practices.
(c) Pick-up and delivery of items constituting branching functions
by a messenger service established by a third party. (1) Pursuant to 12
U.S.C. 24 (Seventh), a national bank and its customers may use a
messenger service to pick up from, and deliver to, customers items that
relate to branching functions within the meaning of 12 U.S.C. 36(j)
without regard to the branching limitations set forth in 12 U.S.C. 36,
provided the messenger service is established and operated by a third
party. In using such a facility, a national bank may establish terms,
conditions, and limitations, consistent with this section and
appropriate to assure compliance with safe and sound banking practices.
(2) The OCC reviews whether a messenger service is established by a
third party on a case-by-case basis, considering all of the
circumstances. However, a messenger service is clearly established by a
third party if:
(i) A party other than the national bank owns the service and its
facilities (or rents them from a party other than the bank) and employs
the person engaged in the provision of the service; and
(ii) The messenger service:
(A) Makes its services available to the public, including other
depository institutions;
(B) Retains ultimate discretion to determine which customers and
geographical areas it will serve;
(C) Maintains ultimate responsibility for scheduling, movement, and
routing;
(D) Does not operate under the name of the bank, and the bank and
the messenger service do not advertise, or otherwise represent, that
the bank itself is providing the service, although the bank may
advertise that its customers may use one or more third party messenger
services to transact business with the bank;
(E) Assumes responsibility for the items during transit and for
maintaining adequate insurance covering thefts, employee fidelity, and
other in-transit losses; and
(F) Acts as the agent for the customer when the items are in
transit. The bank does not deem items intended for deposit to be
deposited until credited to the customer's account at an established
bank office or other permissible nonbranch facility. The bank deems
items representing withdrawals to be paid when the items are given to
the messenger service.
(3) A national bank may defray all or part of the costs incurred by
a customer in transporting items through a messenger service. Payment
of those costs may only cover expenses associated with each transaction
involving the customer and the messenger service. The national bank may
impose terms, conditions, and limitations that it deems appropriate
with respect to the payment of such costs.
(d) Pickup and delivery of items pertaining to branching activities
where the messenger service is established by the national bank. A
national bank may establish and operate a messenger service to
transport items relevant to the bank's transactions with its customers
if such transactions constitute one or more branching functions within
the meaning of 12 U.S.C. 36(j), provided the bank receives approval to
establish a branch pursuant to 12 CFR 5.30.
Sec. 7.1013 Debt cancellation contracts.
A national bank may enter into a contract to provide for loss
arising from cancellation of an outstanding loan upon the death or
disability of a borrower. The imposition of an additional charge and
the establishment of necessary reserves in order to enable the bank to
enter into such debt cancellation contracts are a lawful exercise of
the powers of a national bank.
Sec. 7.1014 Sale of money orders at nonbanking outlets.
A national bank may designate bonded agents to sell the bank's
money orders at nonbanking outlets. The responsibility of both the bank
and its agent should be defined in a written agreement setting forth
the duties of both parties and providing for remuneration of the agent.
The bank's agents need not report on sales and transmit funds from the
nonbanking outlets more frequently than at the end of the third
business day following receipt of the funds.
Sec. 7.1015 Receipt of stock from a small business investment company.
A national bank may purchase the stock of a small business
investment company (SBIC) (see 15 U.S.C. 682(b)), and may receive the
benefits of such stock ownership (e.g., stock dividends). The receipt
and retention of a dividend by a national bank from an SBIC in the form
of stock of a corporate borrower of the SBIC is not a purchase of stock
within the meaning of 12 U.S.C. 24 (Seventh).
[[Page 4865]]
Sec. 7.1016 Independent undertakings to pay against documents.
(a) General authority. A national bank may issue and commit to
issue letters of credit and other independent undertakings within the
scope of the applicable laws or rules of practice recognized by
law.1 Under such letters of credit and other independent
undertakings, the bank's obligation to honor depends upon the
presentation of specified documents and not upon nondocumentary
conditions or resolution of questions of fact or law at issue between
the account party and the beneficiary. A national bank may also confirm
or otherwise undertake to honor or purchase specified documents upon
their presentation under another person's independent undertaking
within the scope of such laws or rules.
\1\ Samples of such laws or rules of practice include, but are
not limited to: the applicable version of Article 5 of the Uniform
Commercial Code (UCC) (1962, as amended 1990) or revised Article 5
of the UCC (as amended 1995) (available from West Publishing Co., 1/
800/340-9378); the Uniform Customs and Practice for Documentary
Credits (International Chamber of Commerce (ICC) Publication No.
500) (available from ICC Publishing, Inc., 212/206-1150); the United
Nations Commission on International Trade Law (UNCITRAL) Convention
on Independent Guarantees and Standby Letters of Credit (adopted by
UNCITRAL 1995) (available from UNCITRAL, 212/963-5353); and the
Uniform Rules for Bank-to-Bank Reimbursements Under Documentary
Credits (ICC Publication No. 525) (available from ICC Publishing,
Inc., 212/206-1150); as any of the foregoing may be amended from
time to time.
---------------------------------------------------------------------------
(b) Safety and soundness considerations--(1) Terms. As a matter of
safe and sound banking practice, banks that issue independent
undertakings should not be exposed to undue risk. At a minimum, banks
should consider the following:
(i) The independent character of the undertaking should be apparent
from its terms (such as terms that subject it to laws or rules
providing for its independent character);
(ii) The undertaking should be limited in amount;
(iii) The undertaking should:
(A) Be limited in duration; or
(B) Permit the bank to terminate the undertaking either on a
periodic basis (consistent with the bank's ability to make any
necessary credit assessments) or at will upon either notice or payment
to the beneficiary; or
(C) Entitle the bank to cash collateral from the account party on
demand (with a right to accelerate the customer's obligations, as
appropriate); and
(iv) The bank either should be fully collateralized or have a post-
honor right of reimbursement from its customer or from another issuer
of an independent undertaking. Alternatively, if the bank's undertaking
is to purchase documents of title, securities, or other valuable
documents, the bank should obtain a first priority right to realize on
the documents if the bank is not otherwise to be reimbursed.
(2) Additional considerations in special circumstances. Certain
undertakings require particular protections against credit,
operational, and market risk:
(i) In the event that the undertaking is to honor by delivery of an
item of value other than money, the bank should ensure that market
fluctuations that affect the value of the item will not cause the bank
to assume undue market risk;
(ii) In the event that an undertaking provides for renewal, the
terms for renewal should be consistent with the bank's ability to make
any necessary credit assessments prior to renewal; and
(iii) In the event that a bank issues an undertaking for its own
account, the underlying transaction for which it is issued must be
within the bank's authority and comply with any safety and soundness
requirements applicable to that transaction.
(3) Operational expertise. The bank should possess operational
expertise that is commensurate with the sophistication of its
independent undertaking activities.
(4) Documentation. The bank must accurately reflect the bank's
undertakings in its records, including any acceptance or deferred
payment or other absolute obligation arising out of its contingent
undertaking.
(c) Coverage. An independent undertaking within the meaning of this
section is not subject to the provisions of Sec. 7.1017.
Sec. 7.1017 National bank as guarantor or surety on indemnity bond.
A national bank may lend its credit, bind itself as a surety to
indemnify another, or otherwise become a guarantor, if:
(a) The bank has a substantial interest in the performance of the
transaction involved (for example, a bank, as fiduciary, has a
sufficient interest in the faithful performance by a cofiduciary of its
duties to act as surety on the bond of such cofiduciary); or
(b) The transaction is for the benefit of a customer and the bank
obtains from the customer a segregated deposit that is sufficient in
amount to cover the bank's total potential liability. A segregated
deposit under this section includes collateral:
(1) In which the bank has perfected its security interest (for
example, if the collateral is a printed security, the bank must have
obtained physical control of the security, and, if the collateral is a
book entry security, the bank must have properly recorded its security
interest); and
(2) That has a market value, at the close of each business day,
equal to the bank's total potential liability and is composed of:
(i) Cash;
(ii) Obligations of the United States or its agencies;
(iii) Obligations fully guaranteed by the United States or its
agencies as to principal and interest; or
(iv) Notes, drafts, or bills of exchange or bankers' acceptances
that are eligible for rediscount or purchase by a Federal Reserve Bank;
or
(3) That has a market value, at the close of each business day,
equal to 110 percent of the bank's total potential liability and is
composed of obligations of a State or political subdivision of a State.
Sec. 7.1018 Automatic payment plan account.
A national bank may, for the benefit and convenience of its savings
depositors, adopt an automatic payment plan under which a savings
account will earn dividends at the current rate paid on regular savings
accounts. The depositor, upon reaching a previously designated age,
receives his or her accumulated savings and earned interest in
installments of equal amounts over a specified period.
Sec. 7.1019 Furnishing of products and services by electronic means
and facilities.
A national bank may perform, provide, or deliver through electronic
means and facilities any activity, function, product, or service that
it is otherwise authorized to perform, provide, or deliver. A national
bank may also, in order to optimize the use of the bank's resources,
market and sell to third parties electronic capacities acquired or
developed by the bank in good faith for banking purposes.
Sec. 7.1020 Purchase of open accounts.
(a) General. The purchase of open accounts is a part of the
business of banking and within the power of a national bank.
(b) Export transactions. A national bank may purchase open accounts
in connection with export transactions; the accounts should be
protected by insurance such as that provided by the Foreign Credit
Insurance Association and the Export-Import Bank.
Sec. 7.1021 Separate investment security limitations.
The 10 percent investment limitation of 12 U.S.C. 24 (Seventh) may
be
[[Page 4866]]
applied separately to each security issue of a single issuer of such
securities, if the proceeds of each issue are to be used to acquire and
lease real estate and related facilities to economically and legally
separate industrial tenants and each issue is payable solely from, and
secured by a first lien on, the revenues to be derived from rentals
paid by such lessee under net noncancellable leases.
Subpart B--Corporate Practices
Sec. 7.2000 Corporate governance procedures.
(a) General. A national bank proposing to engage in a corporate
governance procedure shall comply with applicable Federal banking
statutes and regulations, and safe and sound banking practices.
(b) Other sources of guidance. To the extent not inconsistent with
applicable Federal banking statutes or regulations, or bank safety and
soundness, a national bank may elect to follow the corporate governance
procedures of the law of the state in which the main office of the bank
is located, the law of the state in which the holding company of the
bank is incorporated, the Delaware General Corporation Law, Del. Code
Ann. tit. 8 (1991, as amended 1994, and as amended thereafter), or the
Model Business Corporation Act (1984, as amended 1994, and as amended
thereafter). A national bank shall designate in its bylaws the body of
law selected for its corporate governance procedures.
(c) No-objection procedures. The OCC also considers requests for
its staff's position on the ability of a national bank to engage in a
particular corporate governance procedure in accordance with the no-
objection procedures set forth in Banking Circular 205 or any
subsequently published agency procedures.2 Requests should
demonstrate how the proposed practice is not inconsistent with
applicable Federal statutes or regulations, and is consistent with safe
and sound banking practices.
\2\ Available upon request from the OCC Communications Division,
250 E Street, SW., Washington, DC 20219, (202) 874-4700.
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Sec. 7.2001 Notice of shareholders' meetings.
A national bank must mail shareholders notice of the time, place,
and purpose of all shareholders' meetings at least 10 days prior to the
meeting by first class mail, unless the OCC determines that an
emergency circumstance exists. Where a national bank is a wholly-owned
subsidiary, the sole shareholder is permitted to waive notice of the
shareholder's meeting. The articles of association, bylaws, or law
applicable to a national bank may require a longer period of notice.
Sec. 7.2002 Director or attorney as proxy.
Any person or group of persons, except the bank's officers, clerks,
tellers, or bookkeepers, may be designated to act as proxy. The bank's
directors or attorneys may act as proxy if they are not also employed
as an officer, clerk, teller or bookkeeper of the bank.
Sec. 7.2003 Annual meeting for election of directors.
When the day fixed for the regular annual meeting of the
shareholders falls on a legal holiday in the state in which the bank is
located, the shareholders' meeting shall be held, and the directors
elected, on the next following banking day.
Sec. 7.2004 Honorary directors or advisory boards.
A national bank may appoint honorary or advisory members of a board
of directors to act in advisory capacities without voting power or
power of final decision in matters concerning the business of the bank.
Any listing of honorary or advisory directors must distinguish between
them and the bank's board of directors or indicate their advisory
status.
Sec. 7.2005 Ownership of stock necessary to qualify as director.
(a) General. A national bank director must own a qualifying equity
interest in a national bank or a company that has control of a national
bank. The director must own the qualifying equity interest in his or
her own right and meet a certain minimum threshold ownership.
(b) Qualifying equity interest--(1) Minimum required equity
interest. For purposes of this section, a qualifying equity interest
includes common or preferred stock of the bank or of a company that
controls the bank that has not less than an aggregate par value of
$1,000, an aggregate shareholders' equity of $1,000, or an aggregate
fair market value of $1,000.
(i) The value of the common or preferred stock held by a national
bank director is valued as of the date purchased or the date on which
the individual became a director, whichever value is greater.
(ii) In the case of a company that owns more than one national
bank, a director may use his or her equity interest in the controlling
company to satisfy, in whole or in part, the equity interest
requirement for any or all of the controlled national banks.
(iii) Upon request, the OCC may consider whether other interests in
a company controlling a national bank constitute an interest equivalent
to $1,000 par value of national bank stock.
(2) Joint ownership and tenancy in common. Shares held jointly or
as a tenant in common are qualifying shares held by a director in his
or her own right only to the extent of the aggregate value of the
shares which the director would be entitled to receive on dissolution
of the joint tenancy or tenancy in common.
(3) Shares in a living trust. Shares deposited by a person in a
living trust (inter vivos trust) as to which the person is a trustee
and retains an absolute power of revocation are shares owned by the
person in his or her own right.
(4) Other arrangements. A director may also hold his or her
qualifying interest through profit sharing plans, individual retirement
accounts, retirement plans, and similar arrangements, provided the
director retains beneficial ownership and legal control over the
shares.
(c) Non-qualifying ownership. The following are not shares held by
a director in his or her own right:
(1) Shares pledged by the holder to secure a loan. However, all or
part of the funds used to purchase the required qualifying equity
interest may be borrowed from any party, including the bank or its
affiliates;
(2) Shares purchased subject to an absolute option vested in the
seller to repurchase the shares within a specified period; and
(3) Shares deposited in a voting trust where the depositor
surrenders:
(i) Legal ownership (depositor ceases to be registered owner of the
stock);
(ii) Power to vote the stock or to direct how it shall be voted; or
(iii) Power to transfer legal title to the stock.
Sec. 7.2006 Cumulative voting in election of directors.
When electing directors, a shareholder shall have as many votes as
the number of directors to be elected multiplied by the number of the
shareholder's shares. The shareholder may cast all these votes for one
candidate, or distribute the votes among as many candidates as the
shareholder chooses. If, after the first ballot, subsequent ballots are
necessary to elect directors, a shareholder may not vote shares that he
or she has already fully cumulated and voted in favor of a successful
candidate.
Sec. 7.2007 Filling vacancies and increasing board of directors other
than by shareholder action.
(a) Increasing board of directors. If authorized by the bank's
articles of
[[Page 4867]]
association, between shareholder meetings a majority of the board of
directors may increase the number of the bank's directors within the
limits specified in 12 U.S.C. 71a. The board of directors may increase
the number of directors only by up to two directors, when the number of
directors last elected by shareholders was 15 or fewer, and by up to
four directors, when the number of directors last elected by
shareholders was 16 or more.
(b) Vacancies. If a vacancy occurs on the board of directors,
including a vacancy resulting from an increase in the number of
directors, the vacancy may be filled by the shareholders, a majority of
the board of directors remaining in office, or, if the directors
remaining in office constitute fewer than a quorum, by an affirmative
vote of a majority of all the directors remaining in office.
Sec. 7.2008 Oath of directors.
(a) Administration of the oath. A notary public, including one who
is a director but not an officer of the national bank, may administer
the oath of directors. Any person, other than an officer of the bank,
having an official seal and authorized by the state to administer
oaths, may also administer the oath.
(b) Execution of the oath. Each director attending the organization
meeting shall execute either the joint or individual oath. A director
not attending the organization meeting (the first meeting after the
election of the directors) shall execute the individual oath. A
director shall take another oath upon re-election, notwithstanding
uninterrupted service. Appropriate sample oaths are located in the
``Comptroller's Manual for Corporate Activities.''
Sec. 7.2009 Quorum of the board of directors; proxies not permissible.
A national bank shall provide in its articles of association or
bylaws that for the transaction of business, a quorum of the board of
directors is at least a majority of the entire board then in office. A
national bank director may not vote by proxy.
Sec. 7.2010 Directors' responsibilities.
The business and affairs of the bank shall be managed by or under
the direction of the board of directors. The board of directors should
refer to OCC published guidance for additional information regarding
responsibilities of directors.
Sec. 7.2011 Compensation plans.
Consistent with safe and sound banking practices and the
compensation provisions of 12 CFR part 30, a national bank may adopt
compensation plans, including, among others, the following:
(a) Bonus and profit-sharing plans. A national bank may adopt a
bonus or profit-sharing plan designed to ensure adequate remuneration
of bank officers and employees.
(b) Pension plans. A national bank may provide employee pension
plans and make reasonable contributions to the cost of the pension
plan.
(c) Employee stock option and stock purchase plans. A national bank
may provide employee stock option and stock purchase plans.
Sec. 7.2012 President as director; chief executive officer.
Pursuant to 12 U.S.C. 76, the president of a national bank must be
a member of the board of directors, but a director other than the
president may be elected chairman of the board. A person other than the
president may serve as chief executive officer, and this person is not
required to be a director of the bank.
Sec. 7.2013 Fidelity bonds covering officers and employees.
(a) Adequate coverage. All officers and employees of a national
bank must have adequate fidelity coverage. The failure of directors to
require bonds with adequate sureties and in sufficient amount may make
the directors liable for any losses that the bank sustains because of
the absence of such bonds. Directors should not serve as sureties on
such bonds.
(b) Factors. The board of directors should determine the amount of
such coverage, premised upon a consideration of factors, including:
(1) Internal auditing safeguards employed;
(2) Number of employees;
(3) Amount of deposit liabilities; and
(4) Amount of cash and securities normally held by the bank.
Sec. 7.2014 Indemnification of institution-affiliated parties.
(a) Administrative proceedings or civil actions initiated by
Federal banking agencies. A national bank may only make or agree to
make indemnification payments to an institution-affiliated party with
respect to an administrative proceeding or civil action initiated by
any Federal banking agency, that are reasonable and consistent with the
requirements of 12 U.S.C. 1828(k) and the implementing regulations
thereunder. The term ``institution-affiliated party'' has the same
meaning as set forth at 12 U.S.C. 1813(u).
(b) Administrative proceeding or civil actions not initiated by a
Federal banking agency--(1) General. In cases involving an
administrative proceeding or civil action not initiated by a Federal
banking agency, a national bank may indemnify an institution-affiliated
party for damages and expenses, including the advancement of expenses
and legal fees, in accordance with the law of the state in which the
main office of the bank is located, the law of the state in which the
bank's holding company is incorporated, or the relevant provisions of
the Model Business Corporation Act (1984, as amended 1994, and as
amended thereafter), or Delaware General Corporation Law, Del. Code
Ann. tit. 8 (1991, as amended 1994, and as amended thereafter),
provided such payments are consistent with safe and sound banking
practices. A national bank shall designate in its bylaws the body of
law selected for making indemnification payments under this paragraph.
(2) Insurance premiums. A national bank may provide for the payment
of reasonable premiums for insurance covering the expenses, legal fees,
and liability of institution-affiliated parties to the extent that the
expenses, fees, or liability could be indemnified under paragraph
(b)(1) of this section.
Sec. 7.2015 Cashier.
A national bank's bylaws, board of directors, or a duly designated
officer may assign some or all of the duties previously performed by
the bank's cashier to its president, chief executive officer, or any
other officer.
Sec. 7.2016 Restricting transfer of stock and record dates.
(a) Conditions for stock transfer. Under 12 U.S.C. 52, a national
bank may impose conditions upon the transfer of its stock reasonably
calculated to simplify the work of the bank with respect to stock
transfers, voting at shareholders' meetings, and related matters and to
protect it against fraudulent transfers.
(b) Record dates. A national bank may close its stock records for a
reasonable period to ascertain shareholders for voting purposes. The
board of directors may fix a record date for determining the
shareholders entitled to notice of, and to vote at, any meeting of
shareholders. The record date should be in reasonable proximity to the
date that notice is given to the shareholders of the meeting.
Sec. 7.2017 Facsimile signatures on bank stock certificates.
The president and cashier, or other officers authorized by the
bank's
[[Page 4868]]
bylaws, shall sign each national bank stock certificate. The signatures
may be manual or facsimile, including electronic means of signature.
Each certificate must be sealed with the seal of the association.
Sec. 7.2018 Lost stock certificates.
If a national bank does not provide for replacing lost, stolen, or
destroyed stock certificates in its articles of association or bylaws,
the bank may adopt procedures in accordance with Sec. 7.2000.
Sec. 7.2019 Loans secured by a bank's own shares.
(a) Permitted agreements, relating to bank shares. A national bank
may require a borrower holding shares of the bank to execute
agreements:
(1) Not to pledge, give away, transfer, or otherwise assign such
shares;
(2) To pledge such shares at the request of the bank when necessary
to prevent loss; and
(3) To leave such shares in the bank's custody.
(b) Use of capital notes and debentures. A national bank may not
make loans secured by a pledge of the bank's own capital notes and
debentures. Such notes and debentures must be subordinated to the
claims of depositors and other creditors of the issuing bank, and are,
therefore, capital instruments within the purview of 12 U.S.C. 83.
Sec. 7.2020 Acquisition and holding of shares as treasury stock.
Pursuant to the authority and procedures of 12 U.S.C. 59, a
national bank may acquire its outstanding shares and hold them as
treasury stock, provided that the acquisition and retention of the
shares is, and continues to be, for a legitimate corporate purpose. It
would not be permissible for a national bank to acquire or hold
treasury stock for speculation.
Sec. 7.2021 Preemptive rights.
A national bank in its articles of association must grant or deny
preemptive rights to the bank's shareholders. Any amendment to a
national bank's articles of association which modifies such preemptive
rights must be approved by a vote of the holders of two-thirds of the
bank's outstanding voting shares.
Sec. 7.2022 Voting trusts.
The shareholders of a national bank may establish a voting trust
under the applicable law of a state selected by the participants and
designated in the trust agreement, provided the implementation of the
trust is consistent with safe and sound banking practices.
Sec. 7.2023 Fractional shares.
To avoid complicated recordkeeping in connection with fractional
shares, a national bank issuing additional stock by stock dividend,
upon consolidation or merger, or otherwise, may adopt arrangements such
as the following to preclude the issuance of fractional shares. The
bank may:
(a) Issue scripts or warrants for trading in fractions;
(b) Make reasonable arrangements to provide those to whom
fractional shares would otherwise be issued an opportunity to realize
at a fair price upon the fraction not being issued through its sale, or
the purchase of the additional fraction required for a full share, if
there is an established and active market in the national bank's stock;
(c) Remit the cash equivalent of the fraction not being issued to
those to whom fractional shares would otherwise be issued. The cash
equivalent is based on the market value of the stock, if there is an
established and active market in the national bank's stock. In the
absence of such a market, the cash equivalent is based on a reliable
and disinterested determination as to the fair market value of the
stock if such stock is available; or
(d) Sell full shares representing all the fractions at public
auction, or to the highest bidder after having solicited and received
sealed bids from at least three licensed stock brokers. The national
bank shall distribute the proceeds of the sale pro rata to shareholders
who otherwise would be entitled to the fractional shares.
Sec. 7.2024 Dividends payable in property other than cash.
In addition to cash dividends, directors of a national bank may
declare dividends payable in property, with the approval of the OCC.
Even though the property distributed has been previously charged down
or written off entirely, the dividend is equivalent to a cash dividend
in an amount equal to the actual current value of the property. Before
the dividend is declared, the bank should show the excess of the actual
value over book value on the books of the national bank as a recovery,
and the dividend should then be declared in the amount of the full book
value (equivalent to the actual current value) of the property being
distributed.
Subpart C--Bank Operations
Sec. 7.3000 Bank hours and closings.
(a) Bank hours. A national bank's board of directors should review
its banking hours, and, independently of any other bank, take
appropriate action to establish a schedule of banking hours.
(b) Emergency closings. Pursuant to 12 U.S.C. 95(b)(1), the
Comptroller of the Currency (Comptroller), a state, or a legally
authorized state official may declare a day a legal holiday if
emergency conditions exist. That day is a legal holiday for national
banks or their offices in the affected geographic area (i.e.,
throughout the country, in a state, or in part of a state). Emergency
conditions include natural disasters and civil and municipal
emergencies (e.g., severe flooding, or a power emergency declared by a
local power company or government requesting that businesses in the
affected area close). The Comptroller issues a proclamation authorizing
the emergency closing in accordance with 12 U.S.C. 95 at the time of
the emergency condition, or soon thereafter. When the Comptroller, a
state, or a legally authorized state official declares a day to be a
legal holiday due to emergency conditions, a national bank may choose
to remain open or to close any of its banking offices in the affected
geographic area.
(c) Ceremonial closings. A state or a legally authorized state
official may declare a day a legal holiday for ceremonial reasons. When
a state or a legally authorized state official declares a day to be a
legal holiday for ceremonial reasons, a national bank may choose to
remain open or to close.
(d) Liability. A national bank should assure that all liabilities
or other obligations under the applicable law due to the bank's closing
are satisfied.
Sec. 7.3001 Sharing space and employees.
(a) Sharing space. A national bank may:
(1) Lease excess space on bank premises to one or more other
businesses (including other banks and financial institutions);
(2) Share space jointly held with one or more other businesses; or
(3) Offer its services in space owned or leased to other
businesses.
(b) Sharing employees. When sharing space with other businesses as
described in paragraph (a) of this section, a national bank may
provide, under one or more written agreements among the bank, the other
businesses, and their employees, that:
(1) A bank employee may act as agent for the other business; or
(2) An employee of the other business may act as agent for the
bank.
(c) Supervisory conditions. When a national bank engages in
arrangements of the types listed in paragraphs (a) and (b) of this
section, the bank shall ensure that:
[[Page 4869]]
(1) The other business is conspicuously, accurately, and separately
identified;
(2) Shared employees clearly and fully disclose the nature of their
agency relationship to customers of the bank and of the other
businesses so that customers will know the identity of the bank or
business that is providing the product or service;
(3) The arrangement does not constitute a joint venture or
partnership with the other business under applicable state law;
(4) All aspects of the relationship between the bank and the other
business are conducted at arm's length, unless a special arrangement is
warranted because the other business is a subsidiary of the bank;
(5) Security issues arising from the activities of the other
business on the premises are addressed;
(6) The activities of the other business do not adversely affect
the safety and soundness of the bank;
(7) The shared employees or the entity for which they perform
services are duly licensed or meet qualification requirements of
applicable statutes and regulations pertaining to agents or employees
of such other business; and
(8) The assets and records of the parties are segregated.
(d) Other legal requirements. When entering into arrangements, of
the types described in paragraphs (a) and (b) of this section, and in
conducting operations pursuant to those arrangements the bank must
ensure that each arrangement complies with 12 U.S.C. 29 and 36 and with
any other applicable laws and regulations. If the arrangement involves
an affiliate or a shareholder, director, officer or employee of the
bank:
(1) The bank must ensure compliance with all applicable statutory
and regulatory provisions governing bank transactions with these
persons or entities;
(2) The parties must comply with all applicable fiduciary duties;
and
(3) The parties, if they are in competition with each other, must
consider limitations, if any, imposed by applicable antitrust laws.
Subpart D--Preemption
Sec. 7.4000 Books and records of national banks.
(a) Inspection. Except as otherwise expressly provided by Federal
law, including 12 U.S.C. 62, relating to the right of shareholders,
creditors, and certain tax officials to inspect the list of
shareholders of a bank, only the Comptroller of the Currency or the
Comptroller's authorized representatives are authorized to inspect
books or records of a national bank. Production of records may,
however, be required under normal judicial procedures.
(b) Visitorial powers. Except as otherwise expressly provided by
Federal law, the exercise of visitorial powers over national banks is
vested solely in the OCC, 12 U.S.C. 484. State officials have no
authority to conduct examinations or to inspect or require the
production of books or records of national banks, except for the
limited purpose of ensuring compliance with applicable state unclaimed
property and escheat laws. State authority to review the books and
records of a national bank is limited to those circumstances in which
there is reasonable cause to believe that the bank has failed to comply
with those laws. Federal law provides special procedures for verifying
payroll records for unemployment compensation purposes, 26 U.S.C.
3305(c), for enforcing the Fair Labor Standards Act, 29 U.S.C. 211, and
for ascertaining the correctness of Federal tax returns, 26 U.S.C.
7602.
(c) Report of examination. The report of examination made by an OCC
examiner is designated solely for use in the supervision of the bank.
The bank's copy of the report is the property of the OCC and is loaned
to the bank and any holding company thereof solely for its confidential
use. The bank's directors, in keeping with their responsibilities both
to depositors and to shareholders, should thoroughly review the report.
The report may be made available to other persons only in accordance
with the rules on disclosure in 12 CFR part 4.
Sec. 7.4001 Charging interest at rates permitted competing
institutions; charging interest to corporate borrowers.
(a) Definition. The term ``interest'' as used in 12 U.S.C. 85
includes any payment compensating a creditor or prospective creditor
for an extension of credit, making available of a line of credit, or
any default or breach by a borrower of a condition upon which credit
was extended. It includes, among other things, the following fees
connected with credit extension or availability: numerical periodic
rates, late fees, not sufficient funds (NSF) fees, overlimit fees,
annual fees, cash advance fees, and membership fees. It does not
ordinarily include appraisal fees, premiums and commissions
attributable to insurance guaranteeing repayment of any extension of
credit, finders' fees, fees for document preparation or notarization,
or fees incurred to obtain credit reports.
(b) Authority. A national bank located in a state may charge
interest at the maximum rate permitted to any state-chartered or
licensed lending institution by the law of that state. If state law
permits different interest charges on specified classes of loans, a
national bank making such loans is subject only to the provisions of
state law relating to that class of loans that are material to the
determination of the permitted interest. For example, a national bank
may lawfully charge the highest rate permitted to be charged by a
state-licensed small loan company, without being so licensed, but
subject to state law limitations on the size of loans made by small
loan companies.
(c) Effect on state definitions of interest. The Federal definition
of the term ``interest'' in paragraph (a) of this section does not
change how interest is defined by the individual states (nor how the
state definition of interest is used) solely for purposes of state law.
For example, if late fees are not ``interest'' under state law where a
national bank is located but state law permits its most favored lender
to charge late fees, then a national bank located in that state may
charge late fees to its intrastate customers. The national bank may
also charge late fees to its interstate customers because the fees are
interest under the Federal definition of interest and an allowable
charge under state law where the national bank is located. However, the
late fees would not be treated as interest for purposes of evaluating
compliance with state usury limitations because state law excludes late
fees when calculating the maximum interest that lending institutions
may charge under those limitations.
(d) Usury. A national bank located in a state the law of which
denies the defense of usury to a corporate borrower may charge a
corporate borrower any rate of interest agreed upon by a corporate
borrower.
Sec. 7.4002 National bank charges.
(a) Customer charges and fees. A national bank may charge its
customers non-interest charges and fees, including deposit account
service charges. For example, a national bank may impose deposit
account service charges that its board of directors determines to be
reasonable on dormant accounts. A national bank may also charge a
borrower reasonable fees for credit reports or investigations with
respect to a borrower's credit. All charges and fees should be arrived
at by each bank on a competitive basis and not on the basis of any
agreement, arrangement,
[[Page 4870]]
undertaking, understanding, or discussion with other banks or their
officers.
(b) Considerations. The establishment of non-interest charges and
fees, and the amounts thereof, is a business decision to be made by
each bank, in its discretion, according to sound banking judgment and
safe and sound banking principles. A bank reasonably establishes non-
interest charges and fees if the bank considers the following factors,
among others:
(1) The cost incurred by the bank, plus a profit margin, in
providing the service;
(2) The deterrence of misuse by customers of banking services;
(3) The enhancement of the competitive position of the bank in
accordance with the bank's marketing strategy; and
(4) The maintenance of the safety and soundness of the institution.
(c) Interest. Charges and fees that are ``interest'' within the
meaning of 12 U.S.C. 85 are governed by Sec. 7.4001 and not by this
section.
(d) State law. The OCC evaluates on a case-by-case basis whether a
national bank may establish non-interest charges or fees pursuant to
paragraphs (a) and (b) of this section notwithstanding a contrary state
law that purports to limit or prohibit such charges or fees. In issuing
an opinion on whether such state laws are preempted, the OCC applies
preemption principles derived from the Supremacy Clause of the United
States Constitution and applicable judicial precedent.
(e) National bank as fiduciary. This section does not apply to
charges imposed by a national bank in its capacity as a fiduciary,
which are governed by 12 CFR part 9.
PART 31--EXTENSIONS OF CREDIT TO NATIONAL BANK INSIDERS
2. The authority citation for part 31 is revised to read as
follows:
Authority: 12 U.S.C. 375a(4), 375b(3), 1817(k), and
1972(2)(G)(ii).
3. Part 31 is amended by adding, at the end of the part, the
undesignated center heading ``Interpretations'' and new Secs. 31.100 to
31.102 to read as follows:
Interpretations
Sec. 31.100 Loans secured by stock or obligations of an affiliate.
A bank that makes a loan to an unaffiliated third party may take a
security interest in securities of an affiliate as collateral for the
loan without the loan being deemed a ``covered transaction'' under
section 23A of the Federal Reserve Act (12 U.S.C. 371c) if:
(a) The borrower provides additional collateral that meets or
exceeds the collateral requirements specified in section 23A(c) (12
U.S.C. 371c(c)); and
(b) The loan proceeds are not used to purchase the bank affiliate's
securities that serve as collateral.
Sec. 31.101 Federal funds transactions between affiliates.
The limitations contained in 12 U.S.C. 371c apply to the sale of
Federal funds by a national bank to an affiliate of the bank.
Sec. 31.102 Deposits between affiliated banks.
(a) General rule. The OCC considers a deposit made by a bank in an
affiliated bank to be a loan or extension of credit to the affiliate
under 12 U.S.C. 371c. These deposits must be secured in accordance with
12 U.S.C. 371c(c). However, a national bank may not pledge assets to
secure private deposits unless otherwise permitted by law (see, e.g.,
12 U.S.C. 90 (permitting collateralization of deposits of public
funds); 12 U.S.C. 92a (trust funds); and 25 U.S.C. 156 and 162a (Native
American funds)). Thus, unless one of the exceptions to 12 U.S.C. 371c
noted in paragraph (b) of this section applies or unless another
exception applies that enables a bank to meet the collateral
requirements of 12 U.S.C. 371c(c), a national bank may not:
(1) Make a deposit in an affiliated national bank;
(2) Make a deposit in an affiliated state-chartered bank unless the
affiliated state-chartered bank can legally offer collateral for the
deposit in conformance with applicable state law and 12 U.S.C. 371c; or
(3) Receive deposits from an affiliated bank.
(b) Exceptions. The restrictions of 12 U.S.C. 371c (other than 12
U.S.C. 371c(a)(4), which requires affiliate transactions to be
consistent with safe and sound banking practices) do not apply to
deposits:
(1) Made in the ordinary course of correspondent business; or
(2) Made in an affiliate that qualifies as a ``sister bank'' under
12 U.S.C. 371c(d)(1).
Dated: February 5, 1996.
Eugene A. Ludwig,
Comptroller of the Currency.
[FR Doc. 96-2903 Filed 2-8-96; 8:45 am]
BILLING CODE 4810-33-P
Complete official Federal Register PDF
FR Doc. 96-2856 Elimination of Requirements Governing the Lobbying of HUD Personnel; Removal of 24 CFR Part 86
[Federal Register Volume 61, Number 28 (Friday, February 9, 1996)]
[Rules and Regulations]
[Pages 4875-4876]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-2856]
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DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT
Office of the Secretary
24 CFR Part 86
[Docket No. FR-4009-F-01]
Elimination of Requirements Governing the Lobbying of HUD
Personnel; Removal of 24 CFR Part 86
AGENCY: Office of the Secretary, HUD.
ACTION: Final rule.
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SUMMARY: This final rule removes part 86 from title 24 of the Code of
Federal Regulations. Part 86, which was promulgated to comply with
section 13 of the Department of Housing and Urban Development Act (42
U.S.C. 3537b), established recordkeeping, reporting, and registration
requirements governing attempts to influence HUD programs. It also
placed limitations on the fees paid to consultants who are engaged to
influence the award or allocation of the Department's financial
assistance. Effective January 1, 1996, the Lobbying Disclosure Act of
1995 (Pub. L. 104-65, approved December 19, 1995) repealed the
authority for part 86--section 13 of the Department of Housing and
Urban Development Act. This rule conforms the Code of Federal
Regulations to this repeal.
EFFECTIVE DATE: March 11, 1996.
FOR FURTHER INFORMATION CONTACT: Aaron Santa Anna, Assistant General
Counsel, Ethics Law Division; Office of General Counsel; Room 2158;
U.S. Department of Housing and Urban Development; 451 Seventh Street,
SW., Washington, DC 20410-0500; telephone (202) 708-0836. Hearing or
speech-impaired individuals may call HUD's TDD number (202) 708-0113,
or 1-800-877-8399 (Federal Information Relay Service TDD). (Other than
the ``800'' number, these are not toll-free numbers.)
SUPPLEMENTARY INFORMATION: Section 112 of the Department of Housing and
Urban Development Reform Act of 1989 (Pub. L. 101-235, approved
December 15, 1989) added a new section 13 to the Department of Housing
and Urban Development Act, 42 U.S.C. 3531, et seq. Section 13 contained
two principal features. The first established the standards under
which:
--Persons that make expenditures to influence a HUD officer or employee
in the award of financial assistance or the taking of a management
action by the Department must keep records, and report to HUD, on the
expenditures; and
[[Page 4876]]
--Persons that are engaged to influence a HUD officer or employee in
the award of financial assistance or the taking of a management action
by the Department must register with HUD, and report to HUD on their
lobbying activities.
The second feature imposed limitations on the fees that may be paid
to consultants who are engaged to influence the award or allocation of
the Department's financial assistance.
The requirements of Section 13 are codified at 24 CFR part 86.
The Lobbying Disclosure Act of 1995 (Pub. L. 104-65, approved
December 19, 1995) established government-wide lobbying procedures and
requirements. Sections 11(b)(1) and 24(a) of the new law repealed
section 13, effective January 1, 1996.
The purpose of this rule is to remove part 86 to conform the Code
of Federal Regulations to the new statutory authority.
Justification for Final Rule
In accordance with 24 CFR part 10, it is the practice of the
Department to offer interested parties the opportunity to comment on
proposed regulations. However, this regulation relates to
administrative procedures only and conforms the Code of Federal
Regulations to existing law. The purpose of this rule is to remove part
86 to conform the Code of Federal Regulations to the new statutory
authority. Therefore, the Department has determined that public comment
is unnecessary and contrary to the public interest.
Other Matters
A. Environmental Impact
This final rule is categorically excluded from the NEPA
requirements of HUD regulations at 24 CFR Sec. 50.20(k), which
implement section 102(2)(C) of the National Environmental Policy Act of
1969. The rule involves internal administrative procedures whose
content does not constitute a developmental decision nor affect the
physical condition of project areas or building sites.
B. Regulatory Flexibility Act
The Secretary, in approving this rule for publication, certifies in
accordance with 5 U.S.C. 605(b) (the Regulatory Flexibility Act) that
this rule would not have a significant impact on a substantial number
of small entities. This is a procedural rule only, conforming the Code
of Federal Regulations to existing law.
C. Executive Order 12606, the Family
The General Counsel, as the Designated Official under Executive
Order 12606, The Family, has determined that this final rule is
procedural only, and 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.
D. Executive Order 12612, Federalism
The General Counsel, as the Designated Official under section 6(a)
of Executive Order 12612, Federalism, has determined that this final
rule is procedural only, and does not have substantial, direct effects
on States, on their political subdivisions, or on their relationship
with the Federal government, or on the distribution of power and
responsibilities among the various levels of government.
List of Subjects in 24 CFR Part 86
Administrative practice and procedure, Lobbying (Government
agencies), Reporting and recordkeeping requirements.
Accordingly, under the authority of 42 U.S.C. 3535(d), part 86 is
removed from title 24 of the Code of Federal Regulations.
Dated: February 2, 1996.
Henry G. Cisneros,
Secretary.
[FR Doc. 96-2856 Filed 2-8-96; 8:45 am]
BILLING CODE 4210-32-P
Complete official Federal Register PDF
FR Doc. 96-2846 New Animal Drugs; Change of Sponsor
[Federal Register Volume 61, Number 28 (Friday, February 9, 1996)]
[Rules and Regulations]
[Pages 4874-4875]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-2846]
-----------------------------------------------------------------------
DEPARTMENT OF HEALTH AND HUMAN SERVICES
21 CFR Parts 520, 522, and 558
New Animal Drugs; Change of Sponsor
AGENCY: Food and Drug Administration, HHS.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Food and Drug Administration (FDA) is amending the animal
drug regulations to reflect a change of sponsor name for SmithKline
Animal Health Products, Division of SmithKline Beckman Corp. to
SmithKline Beecham Animal Health due to a merger with Beecham
Laboratories, Division of Beecham, Inc., and to reflect a change of
sponsor for approved new drug applications (NADA's) previously held by
SmithKline Beecham Animal Health to Pfizer, Inc.
EFFECTIVE DATE: February 9, 1996.
FOR FURTHER INFORMATION CONTACT: Judith M. O'Haro, Center for
Veterinary Medicine (HFV-238), Food and Drug Administration, 7500
Standish Pl., Rockville, MD 20855, 301-594-1737.
SUPPLEMENTARY INFORMATION: In the Federal Register of October 8, 1991
(56 FR 50652), the animal drug regulations were amended to reflect the
change of sponsor name for SmithKline Animal Health Products, Division
of SmithKline Beckman Corp. to SmithKline Beecham Animal Health due to
a merger with Beecham Laboratories, Division of Beecham, Inc. The
regulations were amended to reflect the change of sponsor for 28 new
animal drug applications (NADA's) from Beecham Laboratories, Division
of Beecham Inc., to SmithKline Beecham Animal Health, and the change of
sponsor for 22 NADA's from Norden Laboratories, Inc., to SmithKline
Beecham Animal Health also due to the merger. The new company was
assigned a new sponsor labeler code. The amended regulations did not
reflect SmithKline Beecham Animal Health as the new sponsor in
Secs. 558.58, 558.311, 558.355, and 558.625. The sponsor currently
listed for these products is Pfizer, Inc. Accordingly, the agency is
amending these sections to reflect the change of sponsor.
In the Federal Register of November 2, 1995 (60 FR 55657), FDA
published a document that amended the animal drug regulations to
reflect a change of sponsor for 62 NADA's from SmithKline Beecham
Animal Health to Pfizer, Inc. FDA inadvertently amended the regulations
in 21 CFR 520.2260a, 520.2260b, and 520.2260c to reflect Pfizer, Inc.
as the sponsor. However, Solvay Animal Health remains the sponsor of
these sulfamethazine containing applications. The codified sections
that should have been amended are 520.2220a, 520.2220b, 520.2220c,
520.2220d, and 522.2220. In addition, the agency omitted an amendment
to 21 CFR 520.45a(a)(2). Accordingly, the agency is amending these
sections to reflect this change of sponsor.
List of Subjects
21 CFR Parts 520 and 522
Animal drugs.
21 CFR Part 558
Animal drugs, Animal feeds.
[[Page 4875]]
PART 520--ORAL DOSAGE FORM NEW ANIMAL DRUGS
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 parts 520,
522, and 558 are amended as follows:
1. The authority citation for 21 CFR part 520 continues to read as
follows:
Authority: Sec. 512 of the Federal Food, Drug, and Cosmetic Act
(21 U.S.C. 360b).
Sec. 520.45a [Amended]
-2. Section 520.45a Albendazole suspension is amended in paragraph
(a)(2) by removing ``053571'' and adding in its place ``000069''.
Sec. 520.2220a [Amended]
-3. Section 520.2220a Sulfadimethoxine oral solution and soluble
powder is amended in paragraph (b) by removing ``053571'' and adding in
its place ``000069''.
Sec. 520.2220b [Amended]
-4. Section 520.2220b Sulfadimethoxine tablets and boluses is
amended in paragraph (b)(1) by removing ``053571'' and adding in its
place ``000069''.
Sec. 520.2220c [Amended]
-5. Section 520.2220c Sulfadimethoxine oral suspension is amended
in paragraph (c) by removing ``053571'' and adding in its place
``000069''.
Sec. 520.2220d [Amended]
-6. Section 520.2220d Sulfadimethoxine-ormetoprim tablets is
amended in paragraph (b) by removing ``053571'' and adding in its place
``000069''.
Sec. 520.2260a [Amended]
-7. Section 520.2260a Sulfamethazine oblets and boluses is amended
in paragraph (b)(1) by removing ``000069'' and adding in its place
``053501''.
Sec. 520.2260b [Amended]
-8. Section 520.2260b Sulfamethazine sustained-release boluses is
amended in paragraph (b)(1) by removing ``000069'' and adding in its
place ``053501''.
Sec. 520.2260c [Amended]
-9. Section 520.2260c Sulfamethazine sustained-release tablets is
amended in paragraph (a) by removing ``000069'' and adding in its place
``053501''.
PART 522--IMPLANTATION OR INJECTABLE DOSAGE FORM NEW ANIMAL DRUGS
-10. The authority citation for 21 CFR part 522 continues to read
as follows:
Authority: Secs. 512 of the Federal Food, Drug, and Cosmetic Act
(21 U.S.C. 360b).
Sec. 522.2220 [Amended]
-11. Section 522.2220 Sulfadimethoxine injection is amended in
paragraph (a)(2)(i) by removing ``053571'' and adding in its place
``000069''.
PART 558--NEW ANIMAL DRUGS FOR USE IN ANIMAL FEEDS
-12. The authority citation for 21 CFR part 558 continues to read
as follows:
Authority: Secs. 512,701 of the Federal Food, Drug, and Cosmetic
Act (21 U.S.C. 360b, 371).
Sec. 558.58 [Amended]
-13. Section 558.58 Amprolium and ethopabate is amended in the
table in paragraph (d)(1), in item (iii), in the entry for
virginamycin,15, under the ``Limitations'' and the ``Sponsor'' columns
by removing ``000007'' and adding in its place ``000069''.
Sec. 558.311 [Amended]
-14. Section 558.311 Lasalocid is amended in paragraph (b)(2) by
removing ``000007'' and adding in its place ``000069''.
Sec. 558.355 [Amended]
-15. Section 558.355 Monensin is amended in paragraph (b)(5) by
removing ``000007'' and adding in its place ``000069''.
Sec. 558.625 [Amended]
-16. Section 558.625 Tylosin is amended in paragraph (b)(25) by
removing ``000007'' and adding in its place ``000069''.
Dated: February 1, 1996.
Robert C. Livingston
Director, Office of New Animal Drug Evaluation, Center for Veterinary
Medicine.
[FR Doc. 96-2846 Filed 2-8-96; 8:45 am]
BILLING CODE 4160-01-F
Complete official Federal Register PDF
FR Doc. 96-2843 Review of the Pioneer's Preference Rules
[Federal Register Volume 61, Number 28 (Friday, February 9, 1996)]
[Rules and Regulations]
[Pages 4916-4918]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-2843]
=======================================================================
-----------------------------------------------------------------------
FEDERAL COMMUNICATIONS COMMISSION
47 CFR Parts 0 and 1
[ET Docket No. 93-266; FCC 95-493]
Review of the Pioneer's Preference Rules
AGENCY: Federal Communications Commission.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: By this Memorandum Opinion and Order (MO&O), the Commission
denies the petition for reconsideration filed by Qualcomm Incorporated
(Qualcomm) to the Second Report and Order (Second R&O) in this
proceeding, and grants the petition for reconsideration filed by Celsat
America, Inc. (Celsat) to the Third Report and Order (Third R&O). The
Commission finds that there is no need to reconsider its determination
of what constitutes innovative technology, as requested by Qualcomm;
and finds that it is desirable to reconsider its decision to apply
certain new pioneer's preference regulations to pioneer's preference
requests accepted for filing on or before September 1, 1994, as
requested by Celsat. This action is intended to affirm the Commission's
pioneer's preference policies, consistent with Congressional
directives.
EFFECTIVE DATE: March 11, 1996.
FOR FURTHER INFORMATION CONTACT: Rodney Small, (202) 418-2452, Office
of Engineering and Technology, Federal Communications Commission,
Washington, DC 20554.
SUPPLEMENTARY INFORMATION: This is a summary of the Commission's MO&O
adopted December 8, 1995, and released January 30, 1996. This action
will not add to or decrease the public reporting burden. The full text
of the Commission decision is available for inspection and copying
during regular business hours in the FCC Reference Center (Room 239),
1919 M Street, NW, Washington, DC. The complete text of this decision
also may be purchased from the Commission's duplication contractor,
International Transcription Service, Inc., (202) 857-3800, 2100 M
Street, NW, Suite 140, Washington, DC 20037.
Summary of MO&O
1. The pioneer's preference program provides preferential treatment
in the Commission's licensing processes for parties that make
significant contributions to the development of a new service or to the
development of a new technology that substantially enhances an existing
service. The program was established to foster new communications
services and technologies and to encourage parties to submit innovative
proposals in a timely manner. Under the pioneer's preference rules, a
necessary condition for the award of a preference is that an applicant
demonstrate that it has developed the capabilities or possibilities of
a new technology or service, or has brought the technology or service
to a more advanced or effective state. The applicant must also
demonstrate that the new service or technology is technically feasible
by submitting either the summarized results of an experiment or a
technical showing. Finally, a preference is granted only if the service
rules adopted are a reasonable outgrowth of the applicant's proposal
and lend themselves to grant of a preference. A pioneer's preference
recipient's license application is not subject to mutually exclusive
applications.
2. The Second R&O, 60 FR 13636 (March 14, 1995), addressed
proposals set forth in the Notice of Proposed Rule Making, 58 FR 57578
(October 26, 1993), in this proceeding and modified certain rules
regarding the Commission's pioneer's preference program. Specifically,
the Second R&O provided pioneers with a discount on license charges in
services in which licenses are awarded by competitive bidding, and it
also modified several administrative rules. In addition, the Second R&O
also held that, where an ``innovative technology'' has developed or
enhanced more than one service, the grant of a pioneer's preference in
only one such service is sufficient incentive to encourage pioneering
proposals to be submitted.
3. Qualcomm states that the Commission should reconsider its
determination of what constitutes ``innovative technology.'' Qualcomm
contends that four aspects of the Second R&O are not clearly defined.
First, Qualcomm maintains that a technology should not be considered
ineligible for a pioneer's preference merely because that technology
could be used in an existing service; second, it requests that the
Commission clarify that an innovative technology that can be applied to
more than one new service should be eligible for a preference in all
services that are not existing services; third, it requests that an
innovator who develops a new technology that both significantly
improves an existing service and that may also be used to provide a new
service in a different band be eligible for a preference in the new
service; and fourth, it requests that the Commission clarify what it
means by a ``new service'' operating in a higher band. Qualcomm states
that there may be some confusion on this point with respect to
broadband Personal Communications Services (PCS). No party filed
comments on Qualcomm's petition.
4. Legislation implementing domestically the General Agreement on
Tariffs and Trade (GATT) was enacted on December 8, 1994, and contained
an amendment to the Communications Act relating to the pioneer's
preference program. Included in this amendment was Section
309(j)(13)(D), which specified new requirements regarding criteria,
peer review, and unjust enrichment for pioneer's preference requests
that were accepted for filing after September 1, 1994. In the Third
R&O, 60 FR 32116 (June 20, 1995), the Commission implemented the new
requirements specified in Section 309(j)(13)(D) and extended them to
pioneer's preference requests filed on or before September 1, 1994 in
proceedings that have not reached the tentative decision stage. The
Commission stated that such action would further its
[[Page 4917]]
pioneer's preference policy in an auction environment. Also, the
Commission imposed the requirement that pending pioneer's preference
requests must be amended so as to conform to the new requirements--
including an additional requirement adopted in the Third R&O and a
requirement adopted in the Second R&O--no later than 30 days from the
effective date of the rules established by the Third R&O (i.e., by
September 20, 1995).
5. In its petition, Celsat requests that the Commission reconsider
its decision to apply the new requirements regarding criteria, peer
review, and unjust enrichment to pioneer's preference requests that
were accepted for filing on or before September 1, 1994. Celsat also
requests that the Commission defer the deadline for filing amendments
to pioneer's preference requests until 30 days after the effective date
of the Order that responds to its petition. No party filed comments on
Celsat's petition or its request for deferral.
6. The Commission emphasizes that the pioneer's preference program
was established ``to foster a host of valuable new technologies and
services to the public'' and ``to induce innovators to present their
proposals to the Commission in a timely manner.'' To the extent that
new technologies are being developed and presented to the Commission in
a timely manner for use in existing services independently of the
pioneer's preference program, the Commission sees no need to award
preferences based upon the additional use of those technologies in new
services. Therefore, it finds unpersuasive Qualcomm's argument that a
technology that is first used in an existing service independently of
the pioneer's preference program should be eligible for a preference in
the new service. With respect to Qualcomm's argument regarding the
eligibility of an innovative technology to multiple new services, it
does not intend to reward the same technology with a preference in more
than one service. Further, the Commission believes that such a
technology should be eligible for a pioneer's preference only in the
first new service that is proposed (provided that the technology has
not previously been implemented in an existing service). To permit an
applicant to use the same technology as the basis for a pioneer's
preference in more than one new service would be administratively
burdensome, because there may be numerous new services in which an
innovative technology can be used and a party could repeatedly apply
for a preference using that technology. Finally, with respect to new
services operating in higher bands, Qualcomm does not present a valid
reason to believe that there is confusion as to what constitutes a new
service. Accordingly, the Commission finds no need to clarify its rules
regarding new services.
7. With regard to Celsat's petition, the Commission finds that
applying the new pioneer's preference requirements regarding criteria,
peer review, and unjust enrichment to pioneer's preference requests
that were accepted for filing on or before September 1, 1994 is
unnecessary to evaluate these requests and would be administratively
burdensome on the Commission and on the applicants. The Commission
believes that it has sufficient information on each of these requests
to determine whether they are entitled to a pioneer's preference.
Accordingly, it will not apply the new requirements regarding criteria,
peer review, and unjust enrichment to these requests.
8. The Commission notes, however, that all pending pioneer's
preference applicants except Celsat in proceedings that have not
reached the tentative decision stage were required by the Third R&O to
submit by September 20, 1995 amended filings pertaining to these and
other new pioneer's preference requirements adopted in the Second R&O
and Third R&O. Even though a number of pending applicants supplemented
their preference requests by that date, the Office of Management and
Budget (OMB) has not yet approved a new information collection for
pioneer's preference requests pursuant to the Paperwork Reduction Act.
Accordingly, pursuant to that statute, the Commission is ordering that
subsequent to approval by OMB of the new collection, the Chief, Office
of Engineering and Technology announce a new date for the submission of
amended pioneer's preference requests and publish that date in the
Federal Register. Therefore, Celsat and other parties who may wish to
amend their pioneer's preference requests will not be required to do so
prior to the new filing date. On that date, a party that has not
previously filed an amended pioneer's preference request will be
required to do so by submitting a filing pertaining to the new
requirements adopted in the Second R&O and Third R&O. Specifically, a
party that filed a pioneer's preference request on or before September
1, 1994, must submit a statement that a new allocation of spectrum is
necessary for its innovation to be implemented. Further, if the
applicant relied on experimental results to demonstrate the technical
feasibility of its innovation, it must submit a summary of those
experimental results. Additionally, for pioneer's preference requests
filed after September 1, 1994, an applicant must submit a showing
demonstrating that the Commission's public rulemaking process inhibits
it from capturing the economic rewards of its innovation unless it is
granted a pioneer's preference license; i.e., the applicant must show
that it may lose its intellectual property protection because of the
Commission's public process; that the damage to its intellectual
property is likely to be more significant than in other contexts, such
as the patent process; and that the guarantee of a license is a
significant factor in its ability to capture the rewards from its
innovation. Failure by any party to amend in a timely manner will
result in the dismissal of its request.
9. Accordingly, it is ordered that Parts 0 and 1 of the
Commission's Rules are amended as specified below, effective March 11,
1996. It is further ordered that the petition for reconsideration filed
by Qualcomm Incorporated is denied. It is further ordered that the
petition for reconsideration filed by Celsat America, Inc. is granted.
It is further ordered that the request for deferral filed by Celsat
America, Inc. is dismissed as moot. It is further ordered that the
Chief, Office of Engineering and Technology announce a new date for the
submission of amended pioneer's preference requests and publish that
date in the Federal Register, subsequent to approval from the Office of
Management and Budget of the new information collection for pioneer's
preference requests. This action is taken pursuant to Sections 4(i),
7(a), 303(g), and 303(r), of the Communications Act of 1934, as
amended, 47 U.S.C. Sections 154(i), 157(a), 303(g), and 303(r).
List of Subjects
47 CFR Part 0
Organization and functions (Government agencies).
47 CFR Part 1
Pioneer's preference, Radio.
Federal Communications Commission
William F. Caton,
Acting Secretary.
Amendatory Text
Parts 0 and 1 of Chapter I of Title 47 of the Code of Federal
Regulations are amended as follows:
PART 0--COMMISSION ORGANIZATION
1. The authority citation for Part 0 continues to read as follows:
[[Page 4918]]
Authority: Sec. 5, 48 Stat. 1068, as amended; 47 U.S.C. 155,
225, unless otherwise noted.
2. Section 0.241 is amended by revising paragraph (f) to read as
follows:
Sec. 0.241 Authority delegated.
* * * * *
(f) For pioneer's preference requests accepted for filing after
September 1, 1994, the Chief, Office of Engineering and Technology
(OET) is authorized to select, in appropriate cases on his/her own
initiative or upon request by a pioneer's preference applicant or other
interested person, a panel of experts consisting of persons who are
knowledgeable about the specific technology set forth in a pioneer's
preference request and who are neither employed by the Commission nor
by any applicant seeking a pioneer's preference in the same or similar
communications service. In consultation with the General Counsel, the
Chief, OET, shall also impose other conflict-of-interest requirements
that are necessary in the interest of attaining impartial, expert
advice regarding the particular pioneer's preference request or
requests.
PART 1--PRACTICE AND PROCEDURE
1. The authority citation for Part 1 continues to read as follows:
Authority: Secs. 4, 303, 48 Stat. 1066, 1082, as amended; 47
U.S.C. 154, 303; Implement, 5 U.S.C. 552 and 21 U.S.C. 853a, unless
otherwise noted.
2. Section 1.402 is amended by revising paragraphs (h) and (i) to
read as follows:
Sec. 1.402 Pioneer's preference.
* * * * *
(h) For pioneer's preference requests accepted for filing after
September 1, 1994, an opportunity for review and verification of the
requests by experts who are not Commission employees will be provided
by the Commission. The Chief, Office of Engineering and Technology
(OET) may select a panel of experts consisting of persons who are
knowledgeable about the specific technology set forth in a pioneer's
preference request and who are neither employed by the Commission nor
by any applicant seeking a pioneer's preference in the same or similar
communications service. The panel of experts will generally be granted
a period of up to 90 days, but no more than 180 days, to present their
findings to the Commission. The Commission will generally establish,
conduct, and seek the consensus of the panel pursuant to the Federal
Advisory Committee Act, and will evaluate its recommendations in light
of all the submissions and comments in the record. Panelists will have
the authority to seek further information pertaining to preference
requests and to perform field evaluations, as deemed appropriate by the
Chief, OET.
(i) For pioneer's preference requests accepted for filing after
September 1, 1994, in order to qualify for a pioneer's preference in
services in which licenses are awarded by competitive bidding, an
applicant must demonstrate that the Commission's public rulemaking
process inhibits it from capturing the economic rewards of its
innovation unless it is granted a pioneer's preference license. The
applicant must show that it may lose its intellectual property
protection because of the Commission's public process; that the damage
to its intellectual property is likely to be more significant than in
other contexts, such as the patent process; and that the guarantee of a
license is a significant factor in its ability to capture the rewards
from its innovation. This demonstration will be required even if the
Commission has not determined at the time a pioneer's preference
request is filed whether assignments in the proposed service will be
made by competitive bidding.
* * * * *
[FR Doc. 96-2843 Filed 2-8-96; 8:45 am]
BILLING CODE 6712-01-P
Complete official Federal Register PDF
FR Doc. 96-2840 Market Entry and Regulation of Foreign-affiliated Entities
[Federal Register Volume 61, Number 28 (Friday, February 9, 1996)]
[Rules and Regulations]
[Page 4937]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-2840]
-----------------------------------------------------------------------
FEDERAL COMMUNICATIONS COMMISSION
47 CFR Part 63
[IB Docket No. 95-22, FCC 95-475]
Market Entry and Regulation of Foreign-affiliated Entities
AGENCY: Federal Communications Commission.
ACTION: Correction to final regulations.
-----------------------------------------------------------------------
SUMMARY: This document contains a correction to the final regulations
(FCC 95-475), which were published Friday, December 29, 1995 (60 FR
67332). The regulations relate to the market entry of foreign-
affiliated carriers into the United States for the provision of
international telecommunications services.
EFFECTIVE DATE: January 29, 1996.
FOR FURTHER INFORMATION CONTACT: Ken Schagrin (202) 418-1407.
SUPPLEMENTARY INFORMATION:
Need for Correction
As published, the final regulations contains an error which needs
to be corrected.
Correction of Publication
Accordingly, the publication on December 29, 1995 of the final
regulations (FCC 95-475) which were the subject of FR Doc. 95-31099 is
corrected as follows:
Sec. 63.17 [Corrected]
Paragraph 1. On page 67339, in the first column, in Sec. 63.17,
paragraph (b), the phrase ``Except as provided in paragraph (b)(5) * *
*'' is corrected to read ``Except as provided in paragraph (b)(4) * *
*''.
Federal Communications Commission.
William F. Caton,
Acting Secretary.
[FR Doc. 96-2840 Filed 2-8-96; 8:45 am]
BILLING CODE 6712-01-P
Complete official Federal Register PDF
FR Doc. 96-2832 Approval and Promulgation of Implementation Plans; Indiana
[Federal Register Volume 61, Number 28 (Friday, February 9, 1996)]
[Rules and Regulations]
[Pages 4897-4899]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-2832]
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[IN62-1-7234a; FRL-5342-7]
Approval and Promulgation of Implementation Plans; Indiana
AGENCY: Environmental Protection Agency.
ACTION: Direct final rule.
-----------------------------------------------------------------------
SUMMARY: The United States Environmental Protection Agency (USEPA) is
approving an August 25, 1995, State request for a site-specific
revision to the Indiana sulfur dioxide (SO2) State Implementation
Plan (SIP). This revision amends the SO2 emission limitations
applicable to the Joseph E. Seagram and Sons, Inc. (Seagram), facility
in Lawrenceburg, Indiana, so that two boilers may not operate
simultaneously on coal or fuel oil. The Seagram facility has
essentially operated under these restrictions for several years,
thereby emitting less SO2 than the previous rules had allowed. The
incorporation of this restriction into the Indiana SO2 SIP was
deemed to be necessary after dispersion modeling in support of an
SO2 SIP revision for Cincinnati, Ohio predicted violations of the
National Ambient Air Quality Standards (NAAQS) for SO2 in Dearborn
County, Indiana, if Seagram were to operate at the previously allowed
SO2 emission rates. The restrictions contained in Indiana's August
25, 1995, submittal will eliminate the predicted violations in Dearborn
County, and their approval by USEPA will enable final Federal approval
of the Cincinnati, Ohio SO2 SIP revision.
DATES: This action is effective on April 9, 1996 unless an adverse
comment is received by March 11, 1996. If the effective date is
delayed, timely notice will be published in the Federal Register.
ADDRESSES: Written comments should be addressed to: J. Elmer Bortzer,
Chief, Regulation Development Section, Regulation Development Branch
(AR-18J), United States Environmental Protection Agency, Region 5, 77
West Jackson Boulevard, Chicago, Illinois 60604.
Copies of the State's submittal and USEPA's analysis (Technical
Support Document) are available for inspection at the following
location: United States Environmental Protection Agency, Region 5, Air
and Radiation Division, 77 West Jackson Boulevard, Chicago, Illinois
60604. (It is recommended that you telephone Mary Onischak at (312)
353-5954 before visiting the Region 5 Office.)
FOR FURTHER INFORMATION CONTACT: Mary Onischak at (312) 353-5954.
SUPPLEMENTARY INFORMATION:
I. Introduction
Indiana has revised the SO2 emission limits for the Joseph E.
Seagram and Sons, Inc., distillery in Lawrenceburg, Indiana, as
codified by the State at 326 Indiana Administrative Code (326 IAC) 7-4-
13 (3) (Dearborn County Sulfur Dioxide Emission Limitations), and
submitted this rule on August 25, 1995, to USEPA as a site-specific
SO2 SIP revision. The SIP revision limits the use of sulfur-
bearing fuels at the Seagram distillery in Lawrenceburg, Indiana, and
is intended to address potential
[[Page 4898]]
violations of the SO2 NAAQS in Dearborn County, Indiana. The SIP
revision was found complete in a letter dated October 20, 1995.
II. Emission Limitation
In the previously approved SO2 SIP for Dearborn County,
Indiana's rule 326 IAC 7-4-13 limited the emissions at each of
Seagram's Boilers 5 and 6 to 1.92 pounds sulfur dioxide per million
British Thermal Units (lb/MMBTU). In addition, if Boiler Number 6 was
operating on any fuel other than natural gas, the previous rule only
allowed Boiler Number 5 to emit 1.07 lb/MMBTU. In response to a January
5, 1994, request by USEPA, Indiana amended 326 IAC 7-4-13(3) to state
that when both Boilers 5 and 6 are in operation, only one boiler may
use coal or fuel oil. The rule also requires Seagram to keep records of
its fuel usage and report this information to the State of Indiana.
III. Relationship to the Hamilton County, Ohio SIP
The need for revisions to Indiana's Dearborn County SO2 SIP
became apparent during USEPA's review of an Ohio SO2 SIP revision,
which had been requested by USEPA on December 22, 1988. On October 18,
1991, the State of Ohio submitted to USEPA the revised SO2 SIP for
Hamilton County, Ohio. Hamilton County, Ohio, is adjacent to Dearborn
County, Indiana. In the course of Ohio's SIP development, dispersion
modeling was used to evaluate the emissions from significant SO2
sources in and around Hamilton County, including some sources in
Indiana. One of the Indiana sources considered in the Ohio modeling
study was the Seagram facility. Ohio's modeling predicted violations of
the 3-hour and 24-hour SO2 standard at receptor points in Dearborn
County, Indiana, when Seagram was modeled at its highest allowable
SO2 emission rate in accordance with USEPA guidance; in addition,
the Seagram facility was shown to be the main contributor to the
modeled violations in Dearborn County.
Seagram's highest allowable emission rate assumed that Boiler
Number 5 operated continuously on fuel oil. However, in a letter dated
September 1, 1992, Seagram informed Ohio and Indiana that Boiler Number
5, Seagram's standby boiler, had not operated on fuel oil in the
previous six years.1 On January 5, 1994, USEPA requested that
Indiana incorporate this restriction into its SO2 SIP as an
enforceable limitation on Seagram's operation.
\1\ The company also stated in the letter that it did not intend
to operate Boiler Number 5 on fuel oil while Boiler Number 6 was
operating on coal or fuel oil, without first notifying and obtaining
permission from Ohio and Indiana. USEPA notes that the rule being
approved today does not contain any such notification/permission
mechanism.
---------------------------------------------------------------------------
Because some Hamilton County, Ohio, SO2 sources also
contributed to the modeled violations in Dearborn County, Indiana,
USEPA could not approve the Hamilton County, Ohio SO2 SIP before
the modeled violations were fully addressed. Instead, USEPA
conditionally approved the Hamilton County, Ohio, SO2 SIP on
August 23, 1994, under the condition that approvable revisions to the
Dearborn County, Indiana SO2 SIP would be submitted to USEPA by
September 23, 1995. Indiana met this condition, submitting the Seagram
rule revision to USEPA on August 25, 1995. With enforceable boiler use
restrictions in the Indiana SIP, the Seagram facility's SO2
emissions may be included in the Hamilton County SO2 dispersion
modeling study at a lower level than had been assumed previously. Ohio
has already modeled the Seagram facility at the lower emissions allowed
under the boiler restrictions, and found that the predicted SO2
NAAQS violations in Dearborn County were eliminated. USEPA has reviewed
this modeling and determined that it is acceptable. Federal approval of
Indiana's August 25, 1995, SIP revision will therefore enable USEPA to
finalize the Hamilton County, Ohio, SO2 SIP approval.
IV. Final Rulemaking Action
For the reasons discussed above, USEPA is approving 326 IAC 7-4-13
(3). Indiana's revised Dearborn County SO2 rule creates an
enforceable restriction on the operations of fossil fuel-fired boilers
at the Seagram facility. This rule addresses the potential SO2
NAAQS violations predicted by an Ohio modeling study, and will provide
for attainment of the SO2 NAAQS in Dearborn County, Indiana.
The USEPA is publishing this action without prior proposal because
USEPA views this action as a noncontroversial revision and anticipates
no adverse comments. However, USEPA is publishing a separate document
in this Federal Register publication, which constitutes a ``proposed
approval'' of the requested SIP revision and clarifies that the
rulemaking will not be deemed final if timely adverse or critical
comments are filed. The ``direct final'' approval shall be effective on
April 9, 1996, unless USEPA receives adverse or critical comments by
March 11, 1996.
If the USEPA receives comments adverse to or critical of the
approval discussed above, USEPA will withdraw this approval before its
effective date by publishing a subsequent Federal Register document
which withdraws this final action. All public comments received will
then be addressed in a subsequent rulemaking document. Please be aware
that the USEPA will institute a second comment period on this action
only if warranted by significant revisions to the rulemaking based on
comments received in response to this action. Any parties interested in
commenting on this action should do so at this time. If no such
comments are received, USEPA hereby advises the public that this action
will be effective on April 9, 1996.
Nothing in this action should be construed as permitting, allowing
or establishing a precedent for any future request for revision to any
SIP. The 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.
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 D. Nichols, Assistant Administrator
for Air and Radiation. The Office of Management and Budget (OMB) has
exempted this regulatory action from Executive Order 12866 review.
Under sections 202, 203, and 205 of the Unfunded Mandates Reform
Act of 1995 (``Unfunded Mandates Act''), signed into law on March 22,
1995, USEPA must undertake various actions in association with proposed
or final rules that include a Federal mandate that may result in
estimated costs of $100 million or more to the private sector, or to a
State, local, and/or tribal government, in the aggregate. The USEPA
must also develop a plan with regard to small governments that would be
significantly or uniquely affected by the rule.
This rule approves the incorporation into the SIP of an existing
State rule which applies only to a single private sector source located
in Dearborn County, Indiana. It imposes no additional requirements. To
the extent that the rules being approved by this action will impose any
mandate upon this source, such a mandate will not result in estimated
annual costs of $100 million or more to the source. The rule does not
impact any governments.
[[Page 4899]]
Therefore, no action is required under the Unfunded Mandates Act.
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 Clean Air 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 April 9, 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
Air pollution control, Incorporation by reference, Sulfur oxides.
Note: Incorporation by reference of the State Implementation
Plan for the State of Indiana was approved by the Director of the
Federal Register on July 1, 1982.
Dated: November 21, 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 P--Indiana
2. Section 52.770 is amended by adding paragraph (c)(103) to read
as follows:
Sec. 52.770 Identification of plan.
* * * * *
(c) * * *
(103) On August 25, 1995, the State submitted regulations adopted
by the Indiana Air Pollution Control Board as part of title 326 of the
Indiana Administrative Code for incorporation into the Indiana sulfur
dioxide State Implementation Plan.
(i) Incorporation by reference.
(A) 326 Indiana Administrative Code 7-4-13(3); Dearborn County
sulfur dioxide emission limitations; effective May 18, 1995. Published
in the Indiana Register, Volume 18, Number 9, June 1, 1995.
[FR Doc. 96-2832 Filed 2-8-96; 8:45 am]
BILLING CODE 6560-50-P
Complete official Federal Register PDF
FR Doc. 96-2830 Approval and Promulgation of Implementation Plans; State of Nebraska
[Federal Register Volume 61, Number 28 (Friday, February 9, 1996)]
[Rules and Regulations]
[Pages 4899-4901]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-2830]
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[NE-8-1-7206a; FRL-5344-2]
Approval and Promulgation of Implementation Plans; State of
Nebraska
AGENCY: Environmental Protection Agency (EPA).
ACTION: Direct final rule.
-----------------------------------------------------------------------
SUMMARY: The state of Nebraska operates a Federally approved State
Implementation Plan (SIP) that includes a Class II operating permit
program for minor sources (those not subject to Title V). This revision
will clarify and strengthen the Class II operating permit program and
other miscellaneous rule changes.
DATES: This action is effective April 9, 1996 unless by March 11, 1996
adverse or critical comments are received.
ADDRESSES: Copies of the documents relevant to this action are
available for public inspection during normal business hours at the:
Environmental Protection Agency, Air Branch, 726 Minnesota Avenue,
Kansas City, Kansas 66101; and EPA Air & Radiation Docket and
Information Center, 401 M Street SW., Washington, DC 20460.
FOR FURTHER INFORMATION CONTACT: Christopher D. Hess at (913) 551-7213.
SUPPLEMENTARY INFORMATION: In February 1994, the state of Nebraska
submitted an SIP revision to create a Class II operating permit program
for minor sources (those not subject to Title V). This revision became
effective on March 6, 1995 (see 60 FR 372-375).
During the period after the initial state submission, the state
proposed several miscellaneous revisions to clarify and strengthen the
Class II operating permit program. These revisions were adopted by the
Environmental Quality Council on December 2, 1994, and signed by the
Governor on May 29, 1995. The state subsequently requested a revision
to the SIP on June 14, 1995, under the signature of Randolph Wood,
designee of the Governor. This rulemaking addresses those revisions.
Additionally, in a rulemaking published on January 4, 1995 (60 FR
372), one chapter of the state's regulations was inadvertently not
submitted with the incorporation by reference material. Thus, this
rulemaking now incorporates Chapter 25, ``Nitrogen Oxides (Calculated
as Nitrogen Dioxide); Emissions Standards for Existing Stationary
Sources'' of Title 129.
Significant Features of the SIP Revision
A. Modifications for Class II and Construction Permits
1. Consistent with Federal regulations, the state now exempts
sources subject only to 112(r) of the Act from the responsibility to
obtain a Class II operating permit (5:002.02C). (Section 112(r)
requires prevention of accidental release plans.) Sources subject to
112(r) are still required to comply with that section's provisions but
will not be required to also obtain a state permit. This relieves
approximately 500 sources, otherwise not regulated under the Act, from
obtaining Class II permits.
2. The state has revised Title 129 to provide that Class II sources
have the same exemptions and mechanisms for meeting the requirement to
obtain an operating permit available to them as do Class I (Title V)
sources in 5:003:01 and 02. These changes are necessary because those
provisions in the previous rule language did not specify Class II
sources, and the change makes the rule consistent for both classes of
sources.
3. Pursuant to Title V, the state has developed a list and criteria
for insignificant activities for Class I permits as referenced in
7:006.03. The state has revised its rules in 7:007.07 to also allow
exclusion of insignificant activities from Class II permit
applications.
Without the development of a list that can be used for Class II
sources, emissions information would be
[[Page 4900]]
required for every emission point or unit at a facility, regardless of
how small. This revision offers the same relief for Class II sources
from unnecessary reporting as for Class I sources, and reduces the
amount of information required for specified emission units or
activities. However, Class II applications must still provide
information necessary to determine whether an activity is subject to an
applicable requirement.
4. The state has added language that states the provisions of an
operating permit issued under Title 129 supersede the provisions of any
previously issued operating or construction permit (8:007.06). The
addition of this language prevents any misunderstanding over which
provisions are applicable to a source. However, this provision does not
authorize changes to prior permits which make its requirements less
stringent, because rule 8:015.01 requires that permit requirements must
be at least as stringent as any applicable requirement including
conditions of any prior permit.
5. Concerning expired permits, the state has reworded rule 12:003
to provide that the conditions of an expired permit shall continue
until a new permit is issued or until the application for a new permit
is denied.
6. With respect to construction permits in rule 17:001.01, the
state has consolidated the applicability provisions previously
contained in separate rules into the construction permit rule. This is
consistent with EPA requirements for programs to review the air quality
impact of proposed new sources and modifications as specified in
section 110(a)(2)(C) of the Act.
B. Provisions Regulating Incinerators and Class II Permits
1. The state has tightened its requirement that refuse incinerators
obtain operating permits in rule 5:001.02B. The revision provide that
residential incinerators are exempt if they are used to dispose of
wastes generated on site.
2. The state has added a requirement that nonresidential refuse
incinerators obtain a construction permit in rule 17:001.02. An
exemption is provided for residential incinerators on property with
five or less dwellings which dispose of wastes generated on site.
3. The incinerator emission standards in Chapter 22 are amended to
apply to both new and existing refuse incinerators. The former rule
applied only to existing incinerators.
The EPA believes these revisions are approvable because they
strengthen the existing SIP and are consistent with the relevant
requirements of section 110(a)(2) of the Act.
C. Updating and Adopting Federal Regulations
1. The state has revised rule 19:01 to update its incorporation of
Prevention of Significant Deterioration regulations as found in 40 CFR
part 52.21 as amended through June 3, 1994.
2. Nebraska has incorporated by reference the Federal regulation on
General Conformity. This regulation applies to Federal projects in
nonattainment areas and requires such projects to conform to the state
SIP. At this time, the regulation would only apply to the lead
nonattainment area in Omaha.
The EPA is not acting on the Nebraska General Conformity rule in
Chapter 40 as part of this rulemaking, but will act on it in a separate
rulemaking.
D. Administrative Restructuring of Title 129
In the previously approved version of Title 129, Chapters 40
through 44 addressed various administrative matters such as appeal
procedures and the responsibility to comply with Title 129. The state
now consolidates these requirements into one chapter (41). No actual
change in the content has been made from the previously approved SIP.
EPA Action
EPA is taking final action to approve revisions submitted June 14,
1995, for the state of Nebraska. All revisions discussed in this notice
are considered approvable by the EPA. The reader should note in the
rulemaking portion of this document EPA's provision clarifying that any
nonconforming permit requirements may be deemed not Federally
enforceable.
For a complete understanding of the state's submission and EPA's
analysis, the reader may request the ``Technical Support Document (TSD)
for a Revision to the Nebraska State Implementation Plan (SIP)
concerning the Class II Operating Permit Program'' dated August 30,
1995.
The EPA is publishing this action without prior proposal because
the Agency views this as a noncontroversial amendment and anticipates
no adverse comments. However, in a separate document in the Federal
Register publication, the EPA is proposing to approve the SIP revision
should adverse or critical comments be filed.
If the 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. The EPA will not institute a second comment period on
this action. Any parties interested in commenting on this action should
do so at this time.
Nothing in this action should be construed as permitting or
allowing or establishing a precedent for any future request for
revision to any SIP. Each request for revision to the SIP shall be
considered separately in light of specific technical, economic, and
environmental factors, and in relation to relevant statutory and
regulatory requirements.
Under the Regulatory Flexibility Act, 5 U.S.C. 600 et. seq., EPA
must prepare a regulatory flexibility analysis assessing the impact of
any proposed or final rule on small entities (5 U.S.C. 603 and 604).
Alternatively, EPA may certify that the rule will not have a
significant impact on a substantial number of small entities. Small
entities include small businesses, small not-for-profit enterprises,
and government entities with jurisdiction over populations of less than
50,000.
SIP approvals under section 110 and subchapter I, Part D of the
Clean Air Act (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,
EPA certifies that it does not have a significant impact on any small
entities affected. Moreover, due to the nature of the Federal-state
relationship under the CAA, preparation of a regulatory flexibility
analysis would constitute Federal inquiry into the economic
reasonableness of state action. The CAA forbids EPA to base its actions
concerning SIPs on such grounds (Union Electric Co. v. U.S. E.P.A., 427
U.S. 246, 256-66 (S.Ct. 1976); 42 U.S.C. 7410(a)(2)).
This action has been classified as a Table 3 action for signature
by the Regional Administrator under the procedures published in the
Federal Register on January 19, 1989 (54 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.
Unfunded Mandates
Under sections 202, 203, and 205 of the Unfunded Mandates Reform
Act of 1995 (``Unfunded Mandates Act''), signed into law on March 22,
1995, EPA must undertake various actions in association with proposed
or final rules that include a Federal mandate that may
[[Page 4901]]
result in estimated costs of $100 million or more to the private
sector, or to state, local, or tribal governments in the aggregate.
Through submission of this SIP revision, the state has elected to
adopt the program provided for under section 110 of the CAA. These
rules may bind state and local governments to perform certain actions
and also require the private sector to perform certain duties. To the
extent that the rules being finalized for approval by this action will
impose new requirements, sources are already subject to these
regulations under state law. Accordingly, no additional costs to state
or local governments, or to the private sector, result from this final
action. EPA has also determined that this final action does not include
a mandate that may result in estimated costs of $100 million or more to
tribal, state, or local governments in the aggregate or to the private
sector.
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 April 9, 1996. Filing a petition for
reconsideration by the Administrator of this final rule does not affect
the finality of this rule for the purposes of judicial review, nor does
it extend the time within which a petition for judicial review may be
filed, and shall not postpone the effectiveness of such rule or action.
This action may not be challenged later in proceedings to enforce its
requirements. (See section 307(b)(2).)
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Carbon monoxide,
Hydrocarbons, Incorporation by reference, Intergovernmental relations,
Lead, Nitrogen dioxide, Ozone, Particulate matter, Reporting and
recordkeeping requirements, Sulfur oxides, Volatile organic compounds.
Dated: November 22, 1995.
Dennis Grams,
Regional Administrator.
Part 52, chapter I, title 40 of the Code of Federal Regulations is
amended as follows:
PART 52--[AMENDED]
1. The authority citation for part 52 continues to read as follows:
Authority: 42 U.S.C. 7401-7671q.
Subpart CC--Nebraska
2. Section 52.1420 is amended by adding paragraph (c)(43) to read
as follows:
Sec. 52.1420 Identification of plan.
* * * * *
(c) * * *
(43) On June 14, 1995, the Director of the Nebraska Department of
Environmental Quality submitted revisions to the State Implementation
Plan (SIP) to modify the Class II operating permit program.
(i) Incorporation by reference.
(A) Revised rules ``Title 129--Nebraska Air Quality Regulations,''
effective May 29, 1995. This revision applies to chapters 5, 7, 12, 17,
19, 25, 41 and deletes chapters 42, 43 and 44.
(ii) Additional material.
(A) None.
3. Section 52.1424 is added to read as follows:
Sec. 52.1424 Operating permits.
Emission limitations and related provisions which are established
in Nebraska operating permits as Federally enforceable conditions shall
be enforceable by EPA. The EPA reserves the right to deem permit
conditions not Federally enforceable. Such a determination will be made
according to appropriate procedures and be based upon the permit,
permit approval procedures, or permit requirement which do not conform
with the operating permit program requirements or the requirements of
EPA underlying regulations.
[FR Doc. 96-2830 Filed 2-8-96; 8:45 am]
BILLING CODE 6560-50-P
Complete official Federal Register PDF
FR Doc. 96-2828 Clean Air Act Approval and Promulgation of Title V, Section 507, Small Business Stationary Source Technical and Environmental Compliance Assistance Program for Nevada
[Federal Register Volume 61, Number 28 (Friday, February 9, 1996)]
[Rules and Regulations]
[Pages 4901-4902]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-2828]
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[NV23-1-7219a; FRL-5338-8]
Clean Air Act Approval and Promulgation of Title V, Section 507,
Small Business Stationary Source Technical and Environmental Compliance
Assistance Program for Nevada
AGENCY: Environmental Protection Agency (EPA).
ACTION: Direct final rule.
-----------------------------------------------------------------------
SUMMARY: EPA is taking direct final action on revisions to the Nevada
State Implementation Plan. On May 3, 1995 EPA published the Notice of
Proposed Rulemaking to partially approve and partially disapprove the
State Implementation Plan (SIP) revision submitted by the State of
Nevada for the purpose of establishing a Small Business Stationary
Source Technical and Environmental Compliance Assistance Program
(PROGRAM). The cause of the proposed disapproval has since been
corrected by the State. Thus, EPA is finalizing approval of these
revisions into the Nevada SIP under provisions of the CAA regarding EPA
action on SIP submittals and plan requirements for establishing a
PROGRAM.
DATES: This action is effective on April 9, 1996 unless adverse or
critical comments are received by March 11, 1996. If the effective date
is delayed, a timely notice will be published in the Federal Register.
ADDRESSES: Copies of the documents relevant to this action are
available for public inspection during normal business hours at the
following locations: U.S. Environmental Protection Agency, 75 Hawthorne
Street, San Francisco, CA 94105.
U.S. Environmental Protection Agency, Air Docket 6102, 401 ``M'' Street
SW., Washington, DC 20460.
Nevada Division of Environmental Protection, Bureau of Air Quality, 123
West Nye Lane, Room 123, Carson City, NV 89710.
FOR FURTHER INFORMATION CONTACT: R. Michael Stenburg, A-1, U.S.
Environmental Protection Agency, 75 Hawthorne Street, San Francisco, CA
94105, (415) 744-1182.
SUPPLEMENTARY INFORMATION:
1. Background
Implementation of the provisions of the Clean Air Act (CAA), as
amended in 1990, will require regulation of many small businesses so
that areas may attain and maintain the national ambient air quality
standards (NAAQS) and reduce the emission of air toxics. Small
businesses frequently lack the technical expertise and financial
resources necessary to evaluate such regulations and to determine the
appropriate mechanisms for compliance. In anticipation of the impact of
these requirements on small businesses, the CAA requires that States
adopt a Small Business Stationary Source Technical and Environmental
Compliance Assistance Program (PROGRAM), and submit this PROGRAM as a
revision to the Federally approved SIP. In addition, the CAA directs
the Environmental Protection Agency (EPA) to oversee these small
business assistance programs and report to Congress on their
implementation. The requirements for establishing a PROGRAM are set out
in Section 507 of Title V of the CAA. In February 1992, EPA issued
Guidelines for the Implementation of Section 507 of the 1990 Clean Air
Act Amendments, in order to delineate the Federal and State roles in
meeting the new statutory provisions and as a tool to provide
[[Page 4902]]
further guidance to the States on submitting acceptable SIP revisions.
On June 28, 1994, the State of Nevada submitted a SIP revision to
EPA in order to satisfy the requirements of Section 507. In order to
gain full approval, the State submittal must provide for each of the
following PROGRAM elements: (1) the establishment of a Small Business
Assistance Program (SBAP) to provide technical and compliance
assistance to small businesses; (2) the establishment of a State Small
Business Ombudsman to represent the interests of small businesses in
the regulatory process; and (3) the creation of a Compliance Advisory
Panel (CAP) to determine and report on the overall effectiveness of the
SBAP. A detailed discussion of the background for each of the above
PROGRAM elements is provided in the May 3, 1995 Federal Register Notice
of Proposed Rulemaking (NPR) 60 FR 21781. EPA proposed to partially
disapprove the June 28, 1994 submittal for not satisfying the
Compliance Advisory Panel requirements for indicating an implementation
schedule of milestones showing when the officials will be appointed and
when the program will be operational and for not indicating that the
Compliance Advisory Panel will review and assure that information for
small business stationary sources is easily understandable. On June 20,
1995 the State held a public hearing which adopted an implementation
schedule and the aforementioned procedure for insuring information is
understandable by the layperson. On July 5, 1995 the State submitted
the corresponding SIP revision which became effective on July 5, 1995.
EPA has evaluated all of the above PROGRAM elements for consistency
with the requirements of the CAA and the EPA policy guidance document.
EPA has found that all the PROGRAM elements now meet the applicable EPA
requirements. A detailed discussion of the background for each of the
above PROGRAM elements is provided both in this Federal Register and in
the May 3, 1995 Federal Register Notice of Proposed Rulemaking (NPR).
II. Response to Public Comments
A 30-day public comment period was provided in the May 3, 1995
Federal Register NPR. EPA received no public comments.
III. Final Action
EPA is approving the SIP revisions submitted by the State of
Nevada. The revisions were made to satisfy the requirements of Section
507 of the CAA.
EPA is publishing this document without prior proposal because the
Agency views this as a noncontroversial amendment and anticipates no
adverse comments. However, in a separate document in this Federal
Register publication, the EPA is proposing to approve the SIP revision
should adverse or critical comments be filed. This action will be
effective April 9, 1996, unless, by March 11, 1996, adverse or critical
comments are received.
If the EPA receives such comments, this action will be withdrawn
before the effective date by publishing a subsequent document that will
withdraw the final action. All public comments received will then be
addressed in a subsequent final rule based on this action serving as a
proposed rule. The EPA will not institute a second comment period on
this action. Any parties interested in commenting on this action should
do so at this time. If no such comments are received, the public is
advised that this action will be effective April 9, 1996.
The OMB has exempted this action from review under Executive Order
12866.
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.
By this action, EPA is approving a State program created for the
purpose of assisting small businesses in complying with existing
statutory and regulatory requirements. The program being approved today
does not impose any new regulatory burden on small businesses; it is a
program under which small businesses may elect to take advantage of
assistance provided by the state. Therefore, because the EPA's approval
of this program does not impose any new regulatory requirements on
small businesses, I certify that it does not have a significant
economic impact on any small entities affected.
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Incorporation by
reference, Intergovernmental relations.
Note: Incorporation by reference of the State Implementation
Plan for the State of Nevada was approved by the Director of the
Federal Register on July 1, 1982.
Dated: November 20, 1995.
Felicia Marcus,
Regional Administrator.
Part 52, chapter I, title 40 of the Code of Federal Regulations is
amended as follows:
PART 52--[AMENDED]
1. The authority citation for Part 52 continues to read as follows:
Authority: 42 U.S.C. 7401-7671q.
Subpart DD--Nevada
2. Section 52.1470 is amended by adding paragraphs (c) (34) and
(35) to read as follows:
Sec. 52.1470 Identification of plan.
* * * * *
(c) * * *
(34) Program elements were submitted on June 28, 1994 by the
Governor's designee.
(i) Incorporation by reference.
(A) Small Business Stationary Source Technical and Environmental
Compliance Assistance Program, adopted on June 28, 1994.
(35) Program elements were submitted on July 5, 1995 by the
Governor's designee.
(i) Incorporation by reference.
(A) Small Business Stationary Source Technical and Environmental
Compliance Assistance Program, adopted on July 5, 1995.
[FR Doc. 96-2828 Filed 2-8-96; 8:45 am]
BILLING CODE 6560-50-P
Complete official Federal Register PDF
FR Doc. 96-2826 Approval and Promulgation of Implementation Plans; Revision to the Indiana State Implementation Plan for Ozone
[Federal Register Volume 61, Number 28 (Friday, February 9, 1996)]
[Rules and Regulations]
[Pages 4895-4897]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-2826]
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[IN58-1-7216a; FRL-5342-9]
Approval and Promulgation of Implementation Plans; Revision to
the Indiana State Implementation Plan for Ozone
AGENCY: Environmental Protection Agency (USEPA).
ACTION: Direct final rule.
-----------------------------------------------------------------------
SUMMARY: The USEPA approves the State Implementation Plan (SIP)
revision request submitted by the State of Indiana on August 25, 1995,
establishing a summertime gasoline Reid Vapor Pressure (RVP) limit of
7.8 pounds per square inch (psi) for gasoline distributed in Clark and
Floyd Counties, as part of the State's plan to attain 15 percent (%)
Reasonable Further Progress (RFP) reductions of Volatile Organic
Compounds (VOC) emissions in these two Counties by 1996. Emissions of
VOC react with other pollutants, such as oxides of nitrogen, on hot
summer days to form ground-level ozone, commonly known as smog. Ozone
pollution is of particular concern because of its harmful effects upon
lung tissue and breathing passages. RFP plans are intended to bring
areas which have been exceeding the public health-based Federal ozone
air quality standard closer toward the goal of attaining and
maintaining this standard. Indiana expects that the summertime RVP
gasoline limit will reduce VOC emissions by 2.29 tons per day in the
Clark and Floyd Counties ozone nonattainment area. A final approval
action is being taken because the submittal meets all pertinent Federal
requirements.
DATES: The ``direct final'' is effective on April 9, 1996, unless USEPA
receives adverse or critical comments by March 11, 1996. If the
effective date is delayed, timely notice will be published in the
Federal Register.
ADDRESSES: Copies of the revision request is available for inspection
at the following address: U.S. Environmental Protection Agency, Region
5, Air and Radiation Division, 77 West Jackson Boulevard, Chicago,
Illinois 60604. (It is recommended that you telephone Mark J. Palermo
at (312) 886-6082 before visiting the Region 5 Office.)
Written comments should be sent to: J. Elmer Bortzer, Chief,
Regulation Development Section, Regulation Development Branch (AR-18J),
U.S. Environmental Protection Agency, 77 West Jackson Boulevard,
Chicago, Illinois 60604.
FOR FURTHER INFORMATION CONTACT: Mark J. Palermo at (312) 886-6082.
SUPPLEMENTARY INFORMATION:
I. Background
RVP is a measure of a fuel's volatility and thereby affects the
rate at which gasoline evaporates and emits VOC; the lower the RVP, the
lower the rate of evaporation. The RVP of gasoline can be lowered by
reducing the amount of its volatile components, such as butane.
Lowering RVP in the summer months can offset the effect of summer
temperature upon the volatility of gasoline, which in turn lowers
emissions of VOC. Because VOC is a necessary component in the
production of ground level ozone in hot summer months, reduction of RVP
will assist the State of Indiana to attain the National Ambient Air
Quality Standard (NAAQS) for ozone, which all States must promulgate
SIPs to achieve under section 110(a) of the Act.
The USEPA first proposed to regulate gasoline RVP in 1987 (52 FR
31274). USEPA's gasoline RVP proposal resulted in a two-phased final
regulation which was incorporated into the 1990 Amendments to the Clean
Air Act (Act) in section 211(h). Phase I of the regulation took effect
in 1990 (54 FR 11868) for the years 1990 and 1991. Phase II of the
regulation became effective in 1992 (55 FR 23658). The rule divides the
continental United States into two control regions, Class B and Class
C. Generally speaking, the Class B states are the warmer southern and
western states, and Class C states are the cooler northern states. The
Phase II regulation limits the volatility of gasoline sold during the
high ozone season to 9.0 psi RVP for Class C areas and 7.8 psi RVP for
Class B ozone nonattainment areas. Indiana is a Class C State, and
therefore, required under the Federal rule to meet the 9.0 psi RVP
standard.
State governments are generally preempted under section
211(c)(4)(A) of the Act from requiring any or all areas in a state to
meet a more stringent volatility standard.1 However, a state can
require a more stringent standard in its SIP if the state can show
under section 211(c)(4)(C) that the more stringent standard is
necessary to achieve the National Ambient Air Quality Standard (NAAQS)
for ozone in a particular nonattainment area. The state can make this
showing by providing evidence that no other measures exist that would
bring about timely attainment, or that such measures exist and are
technically possible to implement, but are unreasonable or impractical.
If a state makes this showing, it can lower the RVP of gasoline to
whatever level has been shown to be necessary in the nonattainment
area(s).
\1\ USEPA's federal standards were promulgated under both
section 211(c) and section 211(h). States are generally preempted
under section 211(c)(4)(A) from requiring fuel standards promulgated
under section 211(c).
---------------------------------------------------------------------------
II. State Submittal
Section 182 of the Act requires all moderate, serious, severe, and
extreme ozone nonattainment areas to submit an RFP plan to achieve a
15% reduction of 1990 emissions of VOC by 1996. In Indiana, Clark and
Floyd Counties are classified as moderate nonattainment for ozone, and
as such, subject to the 15% RFP requirement. See 40 CFR 81.315.
The Indiana Department of Environmental Management (IDEM) developed
and submitted a plan to USEPA on July 12, 1995, outlining the VOC
emission control measures which will be implemented in order to satisfy
the 15% RFP requirement for Clark and Floyd Counties. USEPA is
currently reviewing the plan. One of the measures identified in the
Clark and Floyd Counties plan is a summertime gasoline RVP limit of 7.8
psi. On August 3, 1994, the Indiana Air Pollution Control Board (IAPCB)
held a preliminary adoption hearing on a proposed rule to limit
summertime gasoline RVP to 7.8 psi, and on January 11, 1995, the IAPCB
adopted the rule. The rule became effective on August 5, 1995, and was
published in the Indiana State Register on August 1, 1995. IDEM
formally submitted the RVP rule to USEPA on August 25, 1995, as a
revision to the Indiana ozone SIP. USEPA made a finding of completeness
of this SIP revision in a letter dated October 2, 1995.
In the 15% RFP plan for Clark and Floyd Counties, Indiana reviewed
all reasonable control measures and calculated the total reductions
that it could achieve through these measures. The plan's modeling
demonstrates that limiting the RVP of gasoline to 7.8 reduces emissions
in Clark and Floyd Counties by approximately 2.29 tons per day.
``Opt-in'' into the Federal reformulated gasoline program, pursuant
to section 211(k)(6) of the Act, could also achieve this amount of
[[Page 4896]]
emission reduction, but could not be implemented in time to qualify as
a control measure which could help Clark and Floyd Counties meet 15%
RFP reductions by 1996. Other reasonable control measures which could
possibly achieve this degree of emission reduction, such as Stage II
vapor recovery, enhanced vehicle Inspection/Maintenance, or new
Reasonably Available Control Technology requirements for stationary
sources, are already part of the RFP plan for Clark and Floyd Counties.
Indiana has therefore selected the RVP control because it is the
only other reasonable and practicable emission control option available
to the Clark and Floyd County area 15% RFP plan, and gasoline RVP
control is necessary to ensure timely attainment with the NAAQS for
ozone. On this basis, USEPA has found that Indiana has sufficiently
justified establishing a 7.8 psi summertime gasoline RVP limit under
section 211(c)(4)(C) of the Act.
III. Analysis of Rule
The Indiana RVP rule specifies that the gasoline distributed in
Clark and Floyd Counties by all refineries, importers, carriers, or
terminals between May 1 and September 15, and all retail stations and
other end users who sell or dispense gasoline between June 1 and
September 15, must meet a RVP standard of 7.8 psi or less per gallon.
The rule provides a 1.0 psi volatility waiver for ethanol blended fuels
and establishes reformulated gasoline (RFG) as a compliant fuel in
order to allow gasoline distributors who sell only RFG to maintain a
presence in Clark and Floyd Counties. In addition, the Indiana RVP rule
requires all parties involved with the marketing of gasoline to
maintain records indicating that the volatility of each gasoline
shipment meets the 7.8 psi limit. The control period, ethanol blend
waiver, and recordkeeping requirements, are all consistent with the Act
and USEPA's final RVP rule (55 FR 23658). Reformulated gasoline is
suitable as a compliant fuel because it achieves slightly higher
emission reductions than gasoline with 7.8 psi RVP.
IDEM will oversee compliance with this rule. Gasoline sampling and
testing to assure compliance with the regulation began in the summer of
1995. Sampling will be performed in accordance with the procedures
described by USEPA in its gasoline volatility regulations in 40 CFR
part 80, Appendix D. Gasoline volatility and ethanol content tests will
be performed following procedures described by USEPA in 40 CFR part 80,
Appendices E and F, respectively. The Indiana Code (IC) 13-7-13-1,
states that any person who violates any provision of IC 13-1-1, IC 13-
1-3, or IC 13-1-11, or any regulation or standard adopted by one (1) of
the boards (i.e., IAPCB), or who violates any determination, permit, or
order made or issued by the commissioner (of IDEM) pursuant to IC 13-1-
1, or IC 13-1-3, is liable for a civil penalty not to exceed twenty-
five thousand dollars per day of any violation. Because this submittal
is a regulation adopted by the IAPCB, a violation of which subjects the
violator to penalties under IC 13-7-13-1, and because a violation of
the ozone SIP would also subject a violator to enforcement under
section 113 of the Act by USEPA, USEPA finds that the submittal
contains sufficient enforcement penalties for approval. In addition,
IDEM has submitted a civil penalty policy document which accounts for
various factors in the assessment of an appropriate civil penalty for
noncompliance with IAPCB rules, among them, the severity of the
violation, intent of the violator, and frequency of violations. USEPA
finds these criteria sufficient to deter non-compliance.
IV. Final Rulemaking Action
The USEPA approves the SIP revision submitted by the State of
Indiana. The State of Indiana has submitted a SIP revision which
includes enforceable state regulations consistent with Federal
requirements. Indiana has already conducted inspections at about one-
third of the regulated facilities during the first season of
compliance. Substantial penalties which will provide an adequate
incentive for the regulated industry to comply and are no less than the
expected cost of compliance are included in current Pollution Control
Board Regulation. USEPA is, therefore, approving this submittal.
Procedural Background
The USEPA is publishing this action without prior proposal because
USEPA views this action as a noncontroversial revision and anticipates
no adverse comments. However, USEPA is publishing a separate document
in this Federal Register publication, which constitutes a ``proposed
approval'' of the requested SIP revision and clarifies that the
rulemaking will not be deemed final if timely adverse or critical
comments are filed. The ``direct final'' approval shall be effective on
April 9, 1996, unless USEPA receives adverse or critical comments by
March 11, 1996. If USEPA receives comments adverse to or critical of
the approval discussed above, USEPA will withdraw this approval before
its effective date by publishing a subsequent Federal Register document
which withdraws this final action. All public comments received will
then be addressed in a subsequent rulemaking document. Please be aware
that USEPA will institute another comment period on this action only if
warranted by significant revisions to the rulemaking based on any
comments received in response to today's action. Any parties interested
in commenting on this action should do so at this time. If no such
comments are received, USEPA hereby advises the public that this action
will be effective on April 9, 1996.
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 D. Nichols, Assistant Administrator
for Air and Radiation. The Office of Management and Budget (OMB) 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
[[Page 4897]]
the selection of this alternative is inconsistent with law.
This final rule only approves the incorporation of existing state
rules into the SIP and imposes no additional requirements. This 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. USEPA, therefore, has not prepared a budgetary impact statement
or specifically addressed the selection of the least costly, most cost-
effective, or least burdensome alternative. Furthermore, 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.
Under the Regulatory Flexibility Act, 5 U.S.C. section 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.
sections 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 a State has already imposed. 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. section 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 April 9, 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, Hydrocarbon,
Incorporation by reference, Ozone.
Dated: November 21, 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 P--Indiana
2. Section 52.770 is amended by adding paragraph (c)(101) to read
as follows:
Sec. 52.770 Identification of plan.
* * * * *
(c) * * *
(101) On August 25, 1995, Indiana submitted a regulation which
reduced the maximum allowable volatility for gasoline sold in Clark and
Floyd Counties to 7.8 psi during the summer control period. The summer
control period is June 1, to September 15, for retail outlets and
wholesale customers, and May 1, to September 15, for all others.
(i) Incorporation by reference. 326 Indiana Administrative Code 13-
3 Control of Gasoline Reid Vapor Pressure. Sections 1 through 7.
Finally adopted by the Indiana Air Pollution Control Board January 11,
1995. Signed by the Secretary of State July 6, 1995. Effective August
5, 1995. Published at Indiana Register, Volume 18, Number 11, August 1,
1995.
[FR Doc. 96-2826 Filed 2-8-96; 8:45 am]
BILLING CODE 6560-50-P
Complete official Federal Register PDF
FR Doc. 96-2824 Approval and Promulgation of Implementation Plans; California State Implementation Plan Revision; Sacramento Metropolitan Air Quality Management District, San Diego County Air Pollution Control District, San Joaquin Valley Unified Air Pollution Control District, and Ventura County Air Pollution Control District
[Federal Register Volume 61, Number 28 (Friday, February 9, 1996)]
[Rules and Regulations]
[Pages 4887-4890]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-2824]
=======================================================================
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[CA 102-13-7212a; FRL-5398-6]
Approval and Promulgation of Implementation Plans; California
State Implementation Plan Revision; Sacramento Metropolitan Air Quality
Management District, San Diego County Air Pollution Control District,
San Joaquin Valley Unified Air Pollution Control District, and Ventura
County Air Pollution Control District
AGENCY: Environmental Protection Agency (EPA).
ACTION: Direct final rule.
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SUMMARY: EPA is taking direct final action on revisions to the
California State Implementation Plan (SIP) for ozone which concern the
control of oxides of nitrogen (NOX) emissions from boilers, steam
generators, and process heaters. The intended effect of approving these
rules is to regulate emissions of NOX in accordance with the
requirements of the Clean Air Act, as amended in 1990 (CAA or the Act).
Thus, EPA is finalizing the approval of these revisions into the
California SIP under provisions of the CAA regarding EPA action on SIP
submittals, SIPs for national primary and secondary ambient air quality
standards and plan requirements for nonattainment areas.
DATES: This action is effective on April 9, 1996 unless adverse or
critical comments are received by March 11, 1996. If the effective date
is delayed, a timely notice will be published in the Federal Register.
ADDRESSES: Copies of the rules and EPA's evaluation report of each rule
are available for public inspection at EPA's Region 9 office during
normal business hours. Copies of the submitted rules are also available
for inspection at the following locations:
Rulemaking Section (A-5-3), Air and Toxics Division, U.S. Environmental
Protection Agency, Region IX, 75 Hawthorne Street, San Francisco, CA
94105-3901.
Environmental Protection Agency, Air Docket (6102), 401 ``M'' Street
SW., Washington, DC 20460.
California Air Resources Board, Stationary Source Division, Rule
Evaluation Section, 2020 ``L'' Street, Sacramento, CA 95814.
Sacramento Metropolitan Air Quality Management District, 8411 Jackson
Road, Sacramento, CA 95826.
San Diego County Air Pollution Control District, 9150 Chesapeake Drive,
San Diego, CA 92123-1096.
San Joaquin Valley Unified Air Pollution Control District, 1999
Tuolumne Street, Suite 200, Fresno, CA 93721.
Ventura County Air Pollution Control District, Rule Development
Section, 669 County Square Drive, Ventura, CA 93003.
FOR FURTHER INFORMATION CONTACT: Duane F. James, Rulemaking Section (A-
5-3), Air and Toxics Division, U.S. Environmental Protection Agency,
Region IX, 75 Hawthorne Street, San Francisco, CA 94105-3901,
Telephone: (415) 744-1191, e-mail: [email protected].
[[Page 4888]]
SUPPLEMENTARY INFORMATION:
Applicability
The rules being approved into the California SIP include: the
Sacramento Metropolitan Air Quality Management District's (SMAQMD) Rule
411, ``Boiler NOX,'' the San Diego County Air Pollution Control
District's (SDCAPCD) Rule 69.2, ``Industrial and Commercial Boilers,
Process Heaters and Steam Generators,'' the San Joaquin Valley Unified
Air Pollution Control District's (SJVUAPCD) Rule 4352, ``Solid Fuel
Fired Boilers, Steam Generators and Process Heaters,'' and the Ventura
County Air Pollution Control District's (VCAPCD) Rule 74.15, ``Boilers,
Steam Generators and Process Heaters.'' These rules were submitted by
the California Air Resources Board (ARB) to EPA on September 28, 1994
(Rule 4352), October 19, 1994 (Rule 69.2), January 24, 1995 (Rule
74.15), and June 16, 1995 (Rule 411).
Background
On November 15, 1990, the Clean Air Act Amendments of 1990 (CAA)
were enacted. Public Law 101-549, 104 Stat. 2399, codified at 42 U.S.C.
7401-7671q. The air quality planning requirements for the reduction of
NOX emissions through reasonably available control technology
(RACT) are set out in section 182(f) of the CAA. On November 25, 1992,
EPA published a Notice of Proposed Rulemaking (NPRM) entitled, ``State
Implementation Plans; Nitrogen Oxides Supplement to the General
Preamble; Clean Air Act Amendments of 1990 Implementation of Title I;
Proposed Rule,'' (the NOX Supplement) which describes the
requirements of section 182(f). The NOX Supplement should be
referred to for further information on the NOX requirements and is
incorporated into this document by reference.
Section 182(f) of the Clean Air Act requires States to apply the
same requirements to major stationary sources of NOX (``major'' as
defined in section 302 and section 182(c), (d), and (e)) as are applied
to major stationary sources of volatile organic compounds (VOCs), in
moderate or above ozone nonattainment areas. The Sacramento County
portion of the Sacramento Metro Area is classified as severe, the San
Diego County Area and the San Joaquin Valley Area are classified as
serious, and the Ventura County Area is classified as severe; 1
therefore these areas were subject to section 182(f), the RACT
requirements of section 182(b)(2), cited below, and the November 15,
1992 deadline.
\1\ The San Joaquin Valley and Ventura County Areas retained
their designations of nonattainment and were classified by operation
of law pursuant to sections 107(d) and 181(a) upon the date of
enactment of the CAA. See 55 FR 56694 (November 6, 1991). The
Sacramento Metro Area was reclassified from serious to severe on
June 1, 1995. See 60 FR 20237 (April 25, 1995). The San Diego Area
was reclassified from severe to serious on February 21, 1995. See 60
FR 3771 (January 19, 1995).
---------------------------------------------------------------------------
Section 182(b)(2) requires submittal of RACT rules for major
stationary sources of VOC emissions (not covered by a pre-enactment
control technologies guidelines (CTG) document or a post-enactment CTG
document) by November 15, 1992. There were no NOX CTGs issued
before enactment and EPA has not issued a CTG document for any NOX
sources since enactment of the CAA. The RACT rules covering NOX
sources and submitted as SIP revisions are expected to require final
installation of the actual NOX controls by May 31, 1995, for those
sources where installation by that date is practicable.
The SMAQMD adopted Rule 411 on February 2, 1995; the SDCAPCD
adopted Rule 69.2 on September 27, 1994; the SJVUAPCD adopted Rule 4352
on September 14, 1994; and the VCAPCD adopted Rule 74.15 on November 8,
1994. These submitted rules were found to be complete on October 21,
1994 (Rules 69.2, and 4352), February 24, 1995 (Rule 74.15), and June
30, 1995 (Rule 411) pursuant of EPA's completeness criteria that are
set forth in 40 CFR part 51, Appendix V 2 and are being proposed
for approval into the SIP.
\2\ EPA adopted the completeness criteria on February 16, 1990
(55 FR 5830) and, pursuant to section 110(k)(1)(A) of the CAA,
revised the criteria on August 26, 1991 (56 FR 42216).
---------------------------------------------------------------------------
NOX emissions contribute to the production of ground level
ozone and smog. SMAQMD's Rule 411, SDCAPCD's Rule 69.2, and VCAPCD's
Rule 74.15 control NOX emissions from boilers, steam generators,
and process heaters that are fired on gaseous and liquid fuels;
SJVUAPCD's Rule 4352 applies to solid-fuel fired boilers, steam
generators, and process heaters. The rules were adopted as part of the
districts' efforts to achieve the National Ambient Air Quality
Standards (NAAQS) for ozone and in response to the CAA requirements
cited above. The following is EPA's evaluation and final action for
these rules.
EPA Evaluation and Proposed Action
In determining the approvability of a NOX rule, EPA must
evaluate the rule for consistency with the requirements of the CAA and
EPA regulations, as found in section 110, and Part D of the CAA and 40
CFR part 51 (Requirements for Preparation, Adoption and Submittal of
Implementation Plans). The EPA interpretation of these requirements,
which forms the basis for this action, appears in various EPA policy
guidance documents.3 Among these provisions is the requirement
that a NOX rule must, at a minimum, provide for the implementation
of RACT for stationary sources of NOX emissions.
\3\ Among other things, the pre-amendment guidance consists of
those portions of the proposed Post-1987 ozone and carbon monoxide
policy that concern RACT, 52 FR 45044 (November 24, 1987); ``Issues
Relating to VOC Regulation Cutpoints, Deficiencies, and Deviations,
Clarification to Appendix D of November 24, 1987 Federal Register
Notice'' (Blue Book) (notice of availability was published in the
Federal Register on May 25, 1988).
---------------------------------------------------------------------------
For the purposes of assisting state and local agencies in
developing NOX RACT rules, EPA prepared the NOX supplement to
the General Preamble, cited above (57 FR 55620). In the NOX
supplement, EPA provides guidance on how RACT will be determined for
stationary sources of NOX emissions. While most of the guidance
issued by EPA on what constitutes RACT for stationary sources has been
directed towards application for VOC sources, much of the guidance is
also applicable to RACT for stationary sources of NOX (see section
4.5 of the NOX Supplement). In addition, pursuant to section
183(c), EPA is issuing alternative control technique documents (ACTs),
that identify alternative controls for all categories of stationary
sources of NOX. The ACT documents will provide information on
control technology for stationary sources that emit or have the
potential to emit 25 tons per year or more of NOX. However, the
ACTs will not establish a presumptive norm for what is considered RACT
for stationary sources of NOX. In general, the guidance documents
cited above, as well as other relevant and applicable guidance
documents, have been set forth to ensure that submitted NOX RACT
rules are fully enforceable and strengthen or maintain the SIP.
The California ARB has published a RACT/BARCT guidance document for
boilers, steam generators, and process heaters entitled,
``Determination of Reasonably Available Control Technology and Best
Available Retrofit Control Technology for Industrial, Institutional,
and Commercial Boilers, Steam Generators, and Process Heaters'' (July
18, 1991). The guidance document defines RACT as an emission limit of
70 parts per million volume (ppmv) at 3% O2 when firing on gaseous
fuels and 115 ppmv at 3% O2 when firing on liquid fuels. BARCT is
defined as an emission limit of 30 ppmv at 3% O2 when firing
[[Page 4889]]
on gaseous fuels and 40 ppmv at 3% O2 when firing on liquid fuels.
The SMAQMD's Rule 411 and the SDCAPCD's Rule 69.2 required RACT control
by May 31, 1995, and require BARCT by May 31, 1997. The SJVUAPCD's Rule
4352 applies to units firing on solid fuel, which the RACT/BARCT
document does not address. However, the rule's emission limit of 0.20
lb/MMBtu (with exceptions) appears to be reasonable because it is the
same as the RACT/BARCT document's limit for firing on liquid fuels
other than fuel oil #1 and #2. Final compliance with the rule was
required by May 31, 1995. The VCAPCD's Rule 74.15 has an emission limit
of 40 ppmv at 3% O2 for firing on gaseous fuels, and final
compliance was required by March 1, 1992; firing on liquid fuels is
prohibited except only in emergencies. All the rules contain adequate
recordkeeping requirements, and the appropriate test methods for
compliance determinations are referenced. The exemptions provided in
the rules are consistent with EPA guidelines. A more detailed
discussion of the sources controlled, the controls required, and the
justification for why these controls represent RACT can be found in the
Technical Support Documents (TSDs) for these rules, dated September 18,
1995.
EPA has evaluated the submitted rules and has determined that they
are consistent with the CAA, EPA regulations and EPA policy. Therefore,
SMAQMD Rule 411, ``Boiler NOX,'' SDCAPCD Rule 69.2, ``Industrial
and Commercial Boilers, Process Heaters and Steam Generators,''
SJVUAPCD Rule 4352, ``Solid Fuel Fired Boilers, Steam Generators and
Process Heaters,'' and VCAPCD Rule 74.15, ``Boilers, Steam Generators
and Process Heaters,'' are being approved under section 110(k)(3) of
the CAA as meeting the requirements of section 110(a), section
182(b)(2), section 182(f) and the NOX Supplement to the General
Preamble.
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.\4\
\4\ The SJVUAPCD's Rule 4352 references the district's Rules
2201 and 1020 in sections 3.7 and 3.12 respectively; the VCAPCD's
Rule 74.15 references the district's Rule 32 in section (C)(3).
Rules 2201, 1020, and 32 have not been approved by EPA for inclusion
into the SIP. Therefore, this direct final rule does not constitute
action on or approval of these rules into the SIP.
---------------------------------------------------------------------------
EPA is publishing this notice without prior proposal because the
Agency views this as a noncontroversial amendment and anticipates no
adverse comments. However, in a separate document in this Federal
Register publication, the EPA is proposing to approve the SIP revisions
should adverse or critical comments be filed. This action will be
effective April 9, 1996, unless, by March 11, 1996, adverse or critical
comments are received.
If the EPA receives such comments, this action will be withdrawn
before the effective date by publishing a subsequent document that will
withdraw the final action. All public comments received will then be
addressed in a subsequent final rule based on this action serving as a
proposed rule. The EPA will not institute a second comment period on
this action. Any parties interested in commenting on this action should
do so at this time. If no such comments are received, the public is
advised that this action will be effective April 9, 1996.
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 economic impact on a substantial number of small entities.
Small entities include small businesses, small not-for-profit
enterprises, and government entities with jurisdiction over populations
of less than 50,000.
SIP approvals under section 110 and subchapter I, Part D of the CAA
do not create any new requirements, but simply approve requirements
that the State is already imposing. Therefore, because the Federal SIP-
approval does not impose any new requirements, I certify that it does
not have a significant impact on affected small entities. Moreover, due
to the nature of the Federal-state relationship under the CAA,
preparation of a regulatory flexibility analysis would constitute
Federal inquiry into the economic reasonableness of state action. The
CAA forbids EPA to base its actions concerning SIPs on such grounds.
Union Electric Co. v. U.S. E.P.A., 427 U.S. 246, 256-66 (S.Ct. 1976);
42 U.S.C. section 7410 (a)(2).
Unfunded Mandates
Under Sections 202, 203, and 205 of the Unfunded Mandates Reform
Act of 1995 (``Unfunded Mandates Act''), signed into law on March 22,
1995, EPA must undertake various actions in association with proposed
or final rules that include a Federal mandate that may result in
estimated costs of $100 million or more to the private sector or to
State, local, or tribal governments in the aggregate.
Through submission of this state implementation plan or plan
revision, the State and any affected local or tribal governments have
elected to adopt the program provided for under Part D of the Clean Air
Act. These rules may bind State, local, and tribal governments to
perform certain actions and also require the private sector to perform
certain duties. The rules being approved by this action will impose no
new requirements because affected sources are already subject to these
regulations under State law. Therefore, no additional costs to State,
local, or tribal governments or to the private sector result from this
action. EPA has also determined that this final action does not include
a mandate that may result in estimated costs of $100 million or more to
State, local, or tribal governments in the aggregate or to the private
sector.
This action has been classified as a Table 3 action for signature
by the Regional Administrator under the procedures published in the
Federal Register on January 19, 1989 (54 FR 2214-2225), as revised by a
July 10, 1995 memorandum from Mary Nichols, Assistant Administrator for
Air and Radiation. The Office of Management and Budget (OMB) has
exempted this regulatory action from Executive Order 12866 review.
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Hydrocarbons,
Incorporation by reference, Intergovernmental relations, Ozone,
Reporting and recordkeeping requirements, Volatile organic compound.
Dated: November 21, 1995.
Felicia Marcus,
Regional Administrator.
Subpart F of part 52, chapter I, Title 40 of the Code of Federal
Regulations is amended as follows:
[[Page 4890]]
PART 52--[AMENDED]
1. The authority citation for part 52 continues to read as follows:
Authority: 42 U.S.C. 7401-7671q.
Subpart F--California
2. Section 52.220 is amended by adding paragraphs (c)(199) (i)(D),
(202)(i)(C)(3), (214)(i)(D), and (222)(i)(C) to read as follows:
Sec. 52.220 Identification of plan.
* * * * *
(199) * * *
(i) * * *
(D) San Joaquin Valley Unified Air Pollution Control District.
(1) Rule 4352, adopted on September 14, 1994.
* * * * *
(202) * * *
(i) * * *
(C) * * *
(3) Rule 69.2, adopted on September 27, 1994.
* * * * *
(214) * * *
(i) * * *
(D) Ventura County Air Pollution Control District.
(1) Rule 74.15, adopted on November 8, 1994.
* * * * *
(222) * * *
(i) * * *
(C) Sacramento Metropolitan Air Quality Management District.
(1) Rule 411, adopted on February 2, 1995.
* * * * *
[FR Doc. 96-2824 Filed 2-8-96; 8:45 am]
BILLING CODE 6560-50-P
Complete official Federal Register PDF
FR Doc. 96-2822 Approval and Promulgation of Implementation Plans; California State Implementation Plan Revision, Monterey Bay Unified Air Pollution Control District, San Diego County Air Pollution Control District, and Santa Barbara County Air Pollution Control District
[Federal Register Volume 61, Number 28 (Friday, February 9, 1996)]
[Rules and Regulations]
[Pages 4892-4895]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-2822]
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[CA 79-4-7252a; FRL-5398-8]
Approval and Promulgation of Implementation Plans; California
State Implementation Plan Revision, Monterey Bay Unified Air Pollution
Control District, San Diego County Air Pollution Control District, and
Santa Barbara County Air Pollution Control District
AGENCY: Environmental Protection Agency (EPA).
ACTION: Direct final rule.
-----------------------------------------------------------------------
SUMMARY: EPA is taking direct final action on revisions to the
California State Implementation Plan. The revisions concern rules from
the following districts: Monterey Bay Unified Air Pollution Control
District (MBUAPCD), San Diego County Air Pollution Control District
(SDCAPCD), and Santa Barbara County Air Pollution Control District
(SBCAPCD). This approval action will incorporate these rules into the
federally approved SIP. The intended effect of approving these rules is
to regulate emissions of volatile organic compounds (VOCs) in
accordance with the requirements of the Clean Air Act, as amended in
1990 (CAA or the Act). The revised rules control VOC emissions from
gasoline storage and transfer and bakery ovens. Thus, EPA is finalizing
the approval of these revisions into the California SIP under
provisions of the CAA regarding EPA action on SIP submittals, SIPs for
national primary and secondary ambient air quality standards and plan
requirements for nonattainment areas.
DATES: This action is effective on April 9, 1996 unless adverse or
critical comments are received by March 11, 1996. If the effective date
is delayed, a timely notice will be published in the Federal Register.
ADDRESSES: Copies of the rule revisions and EPA's evaluation report for
each rule are available for public inspection at EPA's Region IX office
during normal business hours. Copies of the submitted rule revisions
are available for inspection at the following locations:
Rulemaking Section (A-5-3), Air and Toxics Division, U.S. Environmental
Protection Agency, Region IX, 75 Hawthorne Street, San Francisco, CA
94105.
Environmental Protection Agency, Air Docket (6102), 401 ``M'' Street,
SW., Washington, DC 20460.
California Air Resources Board, Stationary Source Division, Rule
Evaluation Section, 2020 ``L'' Street, Sacramento, CA 92123-1095.
Monterey Bay Unified Air Pollution Control District, 24580 Silver Cloud
Court, Monterey, CA 93940.
Santa Barbara County Air Pollution Control District, 26 Castilian
Drive, B-23, Goleta, CA 93117.
San Diego County Air Pollution Control District, 9150 Chesapeake Drive,
CA 92123.
FOR FURTHER INFORMATION CONTACT: Christine Vineyard, Rulemaking Section
(A-5-3), Air and Toxics Division, U.S. Environmental Protection Agency,
Region IX, 75 Hawthorne Street, San Francisco, CA 94105, Telephone:
(415) 744-1197.
SUPPLEMENTARY INFORMATION:
Applicability
The rules being approved into the California SIP include: Monterey
Bay Unified Air Pollution Control District (MBUAPCD) Rule 1002,
Transfer of Gasoline into Vehicle Fuel Tanks; San Diego County Air
Pollution Control District (SDCAPCD) Rule 67.24, Bakery Ovens; and
Santa Barbara County Air Pollution Control District (SBCAPCD) Rule 316,
Storage and Transfer of Gasoline. These rules were submitted by the
California Air Resources Board to EPA on December 22, 1994, June 16,
1995 and March 29, 1994, respectively.
Background
On March 3, 1978, EPA promulgated a list of ozone nonattainment
areas under the provisions of the Clean Air Act, as amended in 1977
(1977 Act or pre-amended Act), that included the Monterey Bay, San
Diego County, and
[[Page 4893]]
Santa Barbara County areas. 43 FR 8964, 40 CFR 81.305. On May 26, 1988,
EPA notified the Governor of California, pursuant to section
110(a)(2)(H) of the 1977 Act, that the above districts' portions of the
California SIP were inadequate to attain and maintain the ozone
standard and requested that deficiencies in the existing SIP be
corrected (EPA's SIP-Call). On November 15, 1990, the Clean Air Act
Amendments of 1990 were enacted. Public Law 101-549, 104 Stat. 2399,
codified at 42 U.S.C. 7401-7671q. In amended section 182(a)(2)(A) of
the CAA, Congress statutorily adopted the requirement that
nonattainment areas fix their deficient reasonably available control
technology (RACT) rules for ozone and established a deadline of May 15,
1991 for states to submit corrections of those deficiencies. In amended
section 182(b)(2)(C) of the CAA, Congress statutorily required
nonattainment areas to submit RACT rules for all major sources of VOCs
by November 15, 1992 (the RACT ``catch-up'' requirement).
Section 182(a)(2) applies to areas designated as nonattainment
prior to enactment of the amendments and classified as marginal or
above as of the date of enactment. It requires such areas to adopt and
correct RACT rules pursuant to pre-amended section 172(b) as
interpreted in pre-amendment guidance.1 EPA's SIP-Call used that
guidance to indicate the necessary corrections for specific
nonattainment areas. The Monterey Bay and Santa Barbara County areas
are classified as moderate and the San Diego County area is classified
as serious.2 The Monterey Bay and Santa Barbara County areas were
subject to the RACT fix-up requirement and the May 15, 1991 deadline.
The San Diego County Area was subject to the RACT catch-up requirements
and the November 15, 1992 deadline.
\1\ Among other things, the pre-amendment guidance consists of
those portions of the proposed Post-1987 ozone and carbon monoxide
policy that concern RACT, 52 FR 45044 (November 24, 1987); ``Issues
Relating to VOC Regulation Cutpoints, Deficiencies, and Deviations,
Clarification to Appendix D of November 24, 1987 Federal Register
Notice'' (Blue Book) (notice of availability was published in the
Federal Register on May 25, 1988); and the existing control
technique guidelines (CTGs).
\2\ Monterey Bay and Santa Barbara County areas have retained
their designation of nonattainment and were classified by operation
of law pursuant to sections 107(d) and 181(a) upon the date of
enactment of the CAA. See 55 FR 56694 (November 6, 1991). The San
Diego area was reclassified from severe to serious on February 21,
1995. See 60 FR 3771 (January 19, 1995)
---------------------------------------------------------------------------
The State of California submitted many revised RACT rules for
incorporation into its SIP on March 29, 1994, December 22, 1994, and
June 16, 1995, including the rules being acted on in this document.
This document addresses EPA's direct-final action for MBUAPCD Rule
1002, Transfer of Gasoline into Vehicle Fuel Tanks; SDCAPCD Rule 67.24,
Bakery Ovens, and SBCAPCD Rule 316, Storage and Transfer of Gasoline.
MBUAPCD adopted Rule 1002 on November 23, 1994; SDCAPCD adopted Rule
67.24 on March 7, 1995; and SBCAPCD adopted Rule 316 on December 14,
1994. These submitted rules were found to be complete on January 3,
1995, June 23, 1995, and June 3, 1994, respectively, pursuant to EPA's
completeness criteria that are set forth in 40 CFR part 51, appendix V
3 and is being finalized for approval into the SIP.
\3\ EPA adopted the completeness criteria on February 16, 1990
(55 FR 5830) and, pursuant to section 110(k)(1)(A) of the CAA,
revised the criteria on August 26, 1991 (56 FR 42216).
---------------------------------------------------------------------------
MBUAPCD Rule 1002 controls emissions from gasoline dispensing
facilities; SDCAPCD Rule 67.24 controls emissions from bakery ovens;
and SBCAPCD Rule 316 controls emissions from the storage and transfer
of gasoline. VOCs contribute to the production of ground level ozone
and smog. This rule was originally adopted as part of MBUAPCD, SDCAPCD,
and SBCAPCD's efforts to achieve the National Ambient Air Quality
Standard (NAAQS) for ozone and in response to EPA's SIP-Call and the
section 182(a)(2)(A) CAA requirement. The following is EPA's evaluation
and final action for this rule.
EPA Evaluation and Action
In determining the approvability of a VOC rule, EPA must evaluate
the rule for consistency with the requirements of the CAA and EPA
regulations, as found in section 110 and Part D of the CAA and 40 CFR
part 51 (Requirements for Preparation, Adoption, and Submittal of
Implementation Plans). The EPA interpretation of these requirements,
which forms the basis for today's action, appears in the various EPA
policy guidance documents listed in footnote 1. Among those provisions
is the requirement that a VOC rule must, at a minimum, provide for the
implementation of RACT for stationary sources of VOC emissions. This
requirement was carried forth from the pre-amended Act.
For the purpose of assisting state and local agencies in developing
RACT rules, EPA prepared a series of Control Technique Guideline (CTG)
documents. The CTGs are based on the underlying requirements of the Act
and specify the presumptive norms for what is RACT for specific source
categories. Under the CAA, Congress ratified EPA's use of these
documents, as well as other Agency policy, for requiring States to
``fix-up'' and ``catch-up'' their RACT rules. See section 182(a)(2)(A)
and section (b)(2)(C). For some categories such as bakery ovens or
storage, transfer and dispensing of gasoline, EPA did not publish a
CTG. In such cases, the District may determine what controls are
required by reviewing the operation of facilities subject to the
regulation and evaluating regulations for similar sources in other
areas. Additional guidance for SDCAPCD Rule 67.25, Bakery Ovens, is
found in the document entitled, ``Alternative Control Technology
Documents for Bakery Oven Emissions,'' EPA 453/R-92-017. Further
interpretations of EPA policy are found in the Blue Book, referred to
in footnote 1. In general, these guidance documents have been set forth
to ensure that VOC rules are fully enforceable and strengthen or
maintain the SIP.
MBUAPCD submitted Rule 1002, Transfer of Gasoline into Vehicle Fuel
Tanks, is a new rule to be included in the SIP, although it has been
enforced in the District since 1989. Rule 1002 includes the following
general requirements:
All gas stations are required to install Phase II vapor
recovery equipment.
Gas stations with throughputs 120,000 gal./yr.
are required to install Phase II vapor recovery equipment by 1991.
The remaining gas stations with throughputs
120,000 gal./yr. are required to install Phase II vapor recovery
equipment by December 22, 1998.
For a detailed evaluation of MBUAPCD Rule 1002, please refer to the
technical support document (TSD) prepared on October 20, 1995.
On December 8, 1994, EPA proposed approval of SDCAPCD Rule 67.24,
Bakery Ovens, (59 FR 92388). After that proposal, the San Diego County
Area was reclassified from a severe to serious ozone non-attainment
area. The SDCAPCD asked EPA to delay final action on Rule 67.24 until
the following administrative revisions were made to reflect this
reclassification:
The standards and compliance schedule sections of the rule
do not apply to sources where the uncontrolled emissions of VOCs from
all bakery ovens combined is less than 50 tons per calendar year.
The emissions testing requirement and the compliance
schedule have been deleted because the District's
[[Page 4894]]
calculations indicate that the two largest bakeries in the county emit
less than 50 tons of VOCs per year.
For a detailed evaluation of SDCAPCD Rule 67.24, please refer to
the TSD dated October 20, 1995, and the notice of proposed rulemaking
dated December 8, 1994.
SBCAPCD Rule 316, Storage and Transfer of Gasoline, includes the
following significant change from the current SIP:
Cross references rule 326 (Storage of Reactive Organic
Compound Liquids) in the section that specifies the controls required
for above-ground tanks larger than 40,000.
For a detailed evaluation of SBCAPCD Rule 316, please refer the TSD
dated October 23, 1995.
EPA has evaluated the submitted rules and has determined that they
are consistent with the CAA, EPA regulations, and EPA policy.
Therefore, MBUAPCD, Rule 1002, Transfer of Gasoline into Vehicle Fuel
Tanks; SDCAPCD Rule 67.24, Bakery Ovens; and SBCAPCD Rule 316, Storage
and Transfer of Gasoline are being approved under section 110(k)(3) of
the CAA as meeting the requirements of section 110(a) and Part D.
Nothing in this action should be construed as permitting or
allowing or establishing a precedent for any future implementation
plan. Each request for revision to the state implementation plan shall
be considered separately in light of specific technical, economic, and
environmental factors and in relation to relevant statutory and
regulatory requirements.
EPA is publishing this document without prior proposal because the
Agency views this as a noncontroversial amendment and anticipates no
adverse comments. However, in a separate document in this Federal
Register publication, the EPA is proposing to approve the SIP revision
should adverse or critical comments be filed. This action will be
effective April 9, 1996, unless, by March 11, 1996, adverse or critical
comments are received.
If the EPA receives such comments, this action will be withdrawn
before the effective date by publishing a subsequent document that will
withdraw the final action. All public comments received will then be
addressed in a subsequent final rule based on this action serving as a
proposed rule. The EPA will not institute a second comment period on
this action. Any parties interested in commenting on this action should
do so at this time. If no such comments are received, the public is
advised that this action will be effective April 9, 1996.
Regulatory Process
Under the Regulatory Flexibility Act, 5 U.S.C. 600 et. seq., EPA
must prepare a regulatory flexibility analysis assessing the impact of
any proposed or final rule on small entities. 5 U.S.C. 603 and 604.
Alternatively, EPA may certify that the rule will not have a
significant impact on a substantial number of small entities. Small
entities include small businesses, small not-for-profit enterprises and
government entities with jurisdiction over populations of less than
50,000.
SIP approvals under sections 110 and 301(a) and subchapter I, Part
D of the CAA do not create any new requirements, but simply approve
requirements that the State is already imposing. Therefore, because the
Federal SIP-approval does not impose any new requirements, I certify
that it does not have a significant impact on any small entities
affected. Moreover, due to the nature of the Federal-state relationship
under the CAA, preparation of a regulatory flexibility analysis would
constitute Federal inquiry into the economic reasonableness of state
action. The CAA forbids EPA to base its actions concerning SIPs on such
grounds. Union Electric Co. v. U.S. E.P.A., 427 U.S. 246, 256-66 (S.
Ct. 1976); 42 U.S.C. 7410 (a)(2).
Unfunded Mandates
Under Sections 202, 203, and 205 of the Unfunded Mandates Reform
Act of 1995 (``Unfunded Mandates Act''), signed into law on March 22,
1995, EPA must undertake various actions in association with proposed
or final rules that include a Federal mandate that may result in
estimated costs of $100 million or more to the private sector or to
State, local, or tribal governments in the aggregate.
Through submission of this state implementation plan or plan
revision, the State and any affected local or tribal governments have
elected to adopt the program provided for under Part D of the Clean Air
Act. These rules may bind State, local, and tribal governments to
perform certain actions and also require the private sector to perform
certain duties. The rules being approved by this action will impose no
new requirements because affected sources are already subject to these
regulations under State law. Therefore, no additional costs to State,
local, or tribal governments or to the private sector result from this
action. EPA has also determined that this final action does not include
a mandate that may result in estimated costs of $100 million or more to
State, local, or tribal governments in the aggregate or to the private
sector.
This action has been classified as a Table 3 action for signature
by the Regional Administrator under the procedures published in the
Federal Register on January 19, 1989 (54 FR 2214-2225), as revised by a
July 10, 1995 memorandum from Mary Nichols, Assistant Administrator for
Air and Radiation. The Office of Management and Budget (OMB) has
exempted this regulatory action from Executive Order 12866 review.
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Hydrocarbons,
Incorporation by reference, Intergovernmental relations, Ozone,
Reporting and recordkeeping requirements, Volatile organic compounds.
Note: Incorporation by reference of the State Implementation
Plan for the State of California was approved by the Director of the
Federal Register on July 1, 1982.
Dated: December 10, 1995.
Felicia Marcus,
Regional Administrator.
Subpart F of part 52, chapter I, title 40 of the Code of Federal
Regulations is amended as follows:
PART 52--[AMENDED]
1. The authority citation for part 52 continues to read as follows:
Authority: 42 U.S.C. 7401-7671q.
Subpart F--California
2. Section 52.220 is amended by adding paragraphs (c)(196)(i)(C),
(210)(i)(D), and (222)(i)(D) to read as follows:
Sec. 52.220 Identification of plan.
* * * * *
(c) * * *
(196)* * *
(i) * * *
(C) Santa Barbara County Air Pollution Control District.
(1) Rule 316, adopted on December 14, 1993.
* * * * *
(210)* * *
(i) * * *
(D) Monterey Bay Unified Air Pollution Control District.
(1) Rule 1002, adopted on November 23, 1994.
* * * * *
(222)* * *
(i) * * *
(D) San Diego County Air Pollution Control District.
[[Page 4895]]
(1) Rule 67.24, adopted on March 7, 1995.
* * * * *
[FR Doc. 96-2822 Filed 2-8-96; 8:45 am]
BILLING CODE 6560-50-W
Complete official Federal Register PDF
FR Doc. 96-2820 Approval and Promulgation of Implementation Plans; California State Implementation Plan Revision, Monterey Bay Unified Air Pollution Control District
[Federal Register Volume 61, Number 28 (Friday, February 9, 1996)]
[Rules and Regulations]
[Pages 4890-4892]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-2820]
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[CA 71-9-7222a; FRL-5399-1]
Approval and Promulgation of Implementation Plans; California
State Implementation Plan Revision, Monterey Bay Unified Air Pollution
Control District
AGENCY: Environmental Protection Agency (EPA).
ACTION: Direct final rule.
-----------------------------------------------------------------------
SUMMARY: EPA is taking direct final action on revisions to the
California State Implementation Plan (SIP). The revisions concern rules
from the Monterey Bay Unified Air Pollution Control District (MBUAPCD).
This approval action will incorporate two rules into the federally
approved SIP and remove one rule from the SIP. The revised rules
control VOC emissions from oil water separators, and the use of
architectural coatings. The rule to be removed controls emissions from
rubber tire manufacturing.
The intended effect of approving these rules is to regulate
emissions of volatile organic compounds (VOCs) in accordance with the
requirements of the Clean Air Act, as amended in 1990 (CAA or the Act).
In addition, the final action on this rule serves as a final
determination that the finding of nonsubmittal for these two rules has
been corrected and that on the effective date of this action, any
Federal Implementation Plan (FIP) clock is stopped. Thus, EPA is
finalizing the approval of these revisions into the California SIP
under provisions of the CAA regarding EPA action on SIP submittals,
SIPs for national primary and secondary ambient air quality standards
and plan requirements for nonattainment areas.
DATES: This action is effective on April 9, 1996 unless adverse or
critical comments are received by March 11, 1996. If the effective date
is delayed, a timely notice will be published in the Federal Register.
ADDRESSES: Copies of the rules and EPA's evaluation report for each
rule are available for public inspection at EPA's Region IX office
during normal business hours. Copies of the submitted rules are
available for inspection at the following locations:
Rulemaking Section (A-5-3), Air and Toxics Division, U.S. Environmental
Protection Agency, Region IX, 75 Hawthorne Street, San Francisco, CA
94105.
Environmental Protection Agency, Air Docket (6102), 401 ``M'' Street
SW., Washington, DC 20460.
California Air Resources Board, Stationary Source Division, Rule
Evaluation Section, 2020 ``L'' Street, Sacramento, CA 92123-1095.
Monterey Bay Unified Air Pollution Control District, 24580 Silver Cloud
Court, Monterey, CA 93940.
FOR FURTHER INFORMATION CONTACT: Christine Vineyard, Rulemaking Section
(A-5-3), Air and Toxics Division, U.S. Environmental Protection Agency,
Region IX, 75 Hawthorne Street, San Francisco, CA 94105, Telephone:
(415) 744-1197.
SUPPLEMENTARY INFORMATION:
Applicability
The rules being approved into the California SIP include: MBUAPCD
420, Effluent Oil Water Separators; and MBUAPCD 426, Architectural
Coatings. The rule being removed from the SIP is MBUAPCD Rule 428,
Manufacture of Rubber Tires. These rules were submitted by the
California Air Resources Board to EPA on November 18, 1993.
Background
On March 3, 1978, EPA promulgated a list of ozone nonattainment
areas under the provisions of the Clean Air Act, as amended in l977
(1977 Act or pre-amended Act), that included the Monterey Bay Area. 43
FR 8964, 40 CFR 81.305. On May 26, 1988, EPA notified the Governor of
California, pursuant to section 110(a)(2)(H) of the 1977 Act, that the
above district's portion of the California SIP was inadequate to attain
and maintain the ozone standard and requested that deficiencies in the
existing SIP be corrected (EPA's SIP-Call). On November 15, 1990, the
Clean Air Act Amendments of 1990 were enacted. Public Law 101-549, 104
Stat. 2399, codified at 42 U.S.C. 7401-7671q. In amended section
182(b)(2) of the CAA, Congress statutorily required nonattainment areas
to submit reasonably available control technology (RACT) rules for
specific VOC sources by November 15, 1992 (the RACT ``catchup''
requirement).
At the time of enactment of the CAA amendments, the Monterey Bay
Area was classified as moderate 1; therefore, this area was
subject to the RACT catch-up requirement and the November 15, 1992
deadline.2
\1\ Monterey Bay Area retained its designation of nonattainment
and was classified by operation of law pursuant to sections 107(d)
and 181(a) upon the date of enactment of the CAA. See 55 FR 56694
(November 6, 1991).
\2\ California did not make the required SIP submittal by
November 15, 1992. On June 8, 1993, the EPA made a finding of
failure to make a submittal pursuant to section 179(a)(1) which
started an 18-month sanction clock. Two of the rules being acted on
in this direct final rule were submitted in response to the EPA
finding of failure to submit.
---------------------------------------------------------------------------
The State of California submitted many revised RACT rules for
incorporation into its SIP on November 18, 1993, including two of the
rules being acted on in this notice. This notice addresses EPA's
direct-final action for MBUAPCD Rule 420, Effluent Oil Water
Separators; and Rule 426, Architectural Coatings. These submitted rules
were found to be complete on December 27, 1993 pursuant to EPA's
completeness criteria that are set forth in 40 CFR part 51 appendix V
3 and are being finalized for approval into the SIP. This notice
also addresses the State of California's request that Rule 428,
[[Page 4891]]
Manufacture of Rubber Tires, be removed from the SIP.
\3\ EPA adopted the completeness criteria on February 16, 1990
(55 FR 5830) and, pursuant to section 110(k)(1)(A) of the CAA,
revised the criteria on August 26, 1991 (56 FR 42216).
---------------------------------------------------------------------------
Rule 420 controls emissions from oil water separators at oil fields
and petroleum refineries; Rule 426 limits the emissions of VOCs
resulting from the use of architectural coatings; and rescinded Rule
428 controls emissions from the manufacture of rubber tires. VOCs
contribute to the production of ground level ozone and smog. These
rules were originally adopted as part of MBUAPCD's effort to achieve
the National Ambient Air Quality Standard (NAAQS) for ozone and in
response to section 182(b)(a). The following is EPA's evaluation and
final action for these rules.
EPA Evaluation and Action
In determining the approvability of a VOC rule, EPA must evaluate
the rule for consistency with the requirements of the CAA and EPA
regulations, as found in section 110 and part D of the CAA and 40 CFR
part 51 (Requirements for Preparation, Adoption, and Submittal of
Implementation Plans). The EPA interpretation of these requirements,
which forms the basis for today's action, appears in the various EPA
policy guidance documents.4 Among those provisions is the
requirement that a VOC rule must, at a minimum, provide for the
implementation of RACT for stationary sources of VOC emissions. This
requirement was carried forth from the pre-amended Act.
\4\ Among other things, the pre-amendment guidance consists of
those portions of the proposed Post-1987 ozone and carbon monoxide
policy that concern RACT, 52 FR 45044 (November 24, 1987); ``Issues
Relating to VOC Regulation Cutpoints, Deficiencies, and Deviations,
Clarification to Appendix D of November 24, 1987 Federal Register
Notice'' (Blue Book) (notice of availability was published in the
Federal Register on May 25, 1988); and the existing control
technique guidelines (CTGs).
---------------------------------------------------------------------------
For the purpose of assisting state and local agencies in developing
RACT rules, EPA prepared a series of Control Technique Guideline (CTG)
documents. The CTGs are based on the underlying requirements of the Act
and specify the presumptive norms for what is RACT for specific source
categories. Under the CAA, Congress ratified EPA's use of these
documents, as well as other Agency policy, for requiring States to
``catch-up'' their RACT rules. See section 182(b)(2). The CTG
applicable to Rule 420 is entitled, ``Control of Refinery Vacuum
Producing Systems, Wastewater Separators, and Process Unit
Turnarounds,'' EPA-450/2-77-025. Rule 426 has no applicable CTG, but
was evaluated for consistency with the State of California's
``Suggested Control Measure for Architectural Coatings,'' July 1989.
Further interpretations of EPA policy are found in the Blue Book,
referred to in footnote 4. In general, these guidance documents have
been set forth to ensure that VOC rules are fully enforceable and
strengthen or maintain the SIP.
MBUAPCD's submitted Rule 420, Effluent Oil Water Separators,
includes the following significant changes from the current SIP:
Test methods were added to determine compliance;
Recordkeeping requirements were added; and
Air Pollution Control Officer discretion for alternative
control measures was deleted from the rule.
MBUAPCD' submitted Rule 426, Architectural Coatings, includes the
following significant changes from the current SIP:
Clearly defines the purpose and applicability of the rule;
Expresses VOC content limitations in ``grams of VOC per
liter of coating, excluding any water, exempt organic compounds, and
colorant added to tint bases'';
Reduces the VOC content limit for non-flat coatings;
Removes small business exemption;
Adds, updates, and clarifies definitions; and
Specifies test methods to be used for determining
compliance.
MBUAPCD's Rule 428, Manufacture of Rubber Tires, was submitted to
be removed from the SIP. This was a source-specific rule since no other
such facilities existed at the time the rule was adopted. This facility
has since shut down. No emission reductions are achieved or claimed
from the control of rubber tire manufacturing within MBUAPCD's ozone
attainment plan. The removal of Rule 428 meets the requirements of
EPA's policy and removes an extraneous rule that serves no purpose.
EPA has evaluated the submitted rules and has determined that they
are consistent with the CAA, EPA regulations, and EPA policy.
Therefore, MBUAPCD Rule 420, Effluent Oil Water Separators and MBUAPCD
Rule 426, Architectural Coatings, are being approved under section
110(k)(3) of the CAA as meeting the requirements of section 110(a) and
part D. Furthermore, EPA is removing applicable Rule 428 consistent
with the requirements of sections 110(l) and 193.
Nothing in this action should be construed as permitting or
allowing or establishing a precedent for any future implementation
plan. Each request for revision to the state implementation plan shall
be considered separately in light of specific technical, economic, and
environmental factors and in relation to relevant statutory and
regulatory requirements.
EPA is publishing this document without prior proposal because the
Agency views this as a noncontroversial amendment and anticipates no
adverse comments. However, in a separate document in this Federal
Register publication, the EPA is proposing to approve the SIP revision
should adverse or critical comments be filed. This action will be
effective April 9, 1996, unless, by March 11, 1996, adverse or critical
comments are received.
If the EPA receives such comments, this action will be withdrawn
before the effective date by publishing a subsequent document that will
withdraw the final action. All public comments received will then be
addressed in a subsequent final rule based on this action serving as a
proposed rule. The EPA will not institute a second comment period on
this action. Any parties interested in commenting on this action should
do so at this time. If no such comments are received, the public is
advised that this action will be effective April 9, 1996.
Regulatory Process
Under the Regulatory Flexibility Act, 5 U.S.C. 600 et seq., EPA
must prepare a regulatory flexibility analysis assessing the impact of
any proposed or final rule on small entities. 5 U.S.C. 603 and 604.
Alternatively, EPA may certify that the rule will not have a
significant impact on a substantial number of small entities. Small
entities include small businesses, small not-for-profit enterprises and
government entities with jurisdiction over populations of less than
50,000.
SIP approvals under sections 110 and 301(a) and subchapter I, Part
D of the CAA do not create any new requirements, but simply approve
requirements that the State is already imposing. Therefore, because the
Federal SIP-approval does not impose any new requirements, I certify
that it does not have a significant impact on any small entities
affected. Moreover, due to the nature of the Federal-state relationship
under the CAA, preparation of a regulatory flexibility analysis would
constitute Federal inquiry into the economic reasonableness of state
action. The CAA forbids EPA to base its actions concerning SIPs on such
grounds. Union Electric Co. v. U.S. E.P.A., 427 U.S. 246, 256-66 (S.
Ct. 1976); 42 U.S.C. 7410 (a)(2).
[[Page 4892]]
Unfunded Mandates
Under Sections 202, 203, and 205 of the Unfunded Mandates Reform
Act of 1995 (``Unfunded Mandates Act''), signed into law on March 22,
1995, EPA must undertake various actions in association with proposed
or final rules that include a Federal mandate that may result in
estimated costs of $100 million or more to the private sector or to
State, local, or tribal governments in the aggregate.
Through submission of this state implementation plan or plan
revision, the State and any affected local or tribal governments have
elected to adopt the program provided for under Part D of the Clean Air
Act. These rules may bind State, local, and tribal governments to
perform certain actions and also require the private sector to perform
certain duties. The rules being approved by this action will impose no
new requirements because affected sources are already subject to these
regulations under State law. Therefore, no additional costs to State,
local, or tribal governments or to the private sector result from this
action. EPA has also determined that this direct final action does not
include a mandate that may result in estimated costs of $100 million or
more to State, local, or tribal governments in the aggregate or to the
private sector.
This action has been classified as a Table 3 action for signature
by the Regional Administrator under the procedures published in the
Federal Register on January 19, 1989 (54 FR 2214-2225), as revised by a
July 10, 1995 memorandum from Mary Nichols, Assistant Administrator for
Air and Radiation. The Office of Management and Budget (OMB) has
exempted this action from review under Executive Order 12866.
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Hydrocarbons,
Incorporation by reference, Intergovernmental relations, Ozone,
Reporting and recordkeeping requirements, Volatile organic compounds.
Note: Incorporation by reference of the State Implementation
Plan for the State of California was approved by the Director of the
Federal Register on July 1, 1982.
Dated: December 10, 1995.
Felicia Marcus,
Regional Administrator.
Subpart F of part 52, chapter I, title 40 of the Code of Federal
Regulations is amended as follows:
PART 52--[AMENDED]
Subpart F--California
1. The authority citation for Part 52 continues to read as follows:
Authority: 42 U.S.C. 7401-7671q.
2. Section 52.220 is amended by adding paragraphs (c)(194)(i)(F)
(3) and (4) to read as follows:
Sec. 52.220 Identification of plan.
* * * * *
(c) * * *
(194) * * *
(i) * * *
(F) * * *
(3) Rule 420 and Rule 426, adopted on August 25, 1993.
(4) Previously submitted to EPA on February 6, 1975 and approved in
the Federal Register on July 13, 1987 and now removed without
replacement, Rule 428.
[FR Doc. 96-2820 Filed 2-8-96; 8:45 am]
BILLING CODE 6560-50-P
Complete official Federal Register PDF
FR Doc. 96-2763 Special Local Regulations: Newport to Ensenada Race
[Federal Register Volume 61, Number 28 (Friday, February 9, 1996)]
[Rules and Regulations]
[Pages 4885-4886]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-2763]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF TRANSPORTATION
Coast Guard
33 CFR Part 100
[CGD11-96-001]
RIN 2115-AE46
Special Local Regulations: Newport to Ensenada Race
AGENCY: Coast Guard, DOT.
ACTION: Notice of implementation.
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SUMMARY: This notice implements 33 CFR 100.1101, ``Southern California
marine events,'' for the Newport to Ensenada Race. This event consists
of a sailboat race with 400-500 participants. These regulations will be
effective in the portion of the Pacific Ocean off Newport, California.
Implementation of section 33 CFR 100.1101 is necessary to control
vessel traffic in the regulated area for the start of the race only to
ensure the safety of participants and spectators.
EFFECTIVE DATE: 33 CFR 100.1101 is effective from 12 noon on 26 April
1996, and terminates at 3 PM 26 April 1996, unless cancelled earlier by
the Patrol Commander.
FOR FURTHER INFORMATION CONTACT: QMC D.K. Larson, U.S. Coast Guard
Marine Safety Office/Group Los Angeles/Long Beach, California; Tel:
(310) 980-4442.
SUPPLEMENTARY INFORMATION:
Drafting Information
The drafters of this notice are QMC D.K. Larson, Coast Guard Marine
Safety Office/Group Los Angeles/Long Beach, Project Officer, and LT
A.K. Abbott, Eleventh Coast Guard District Legal Office, Project
Attorney.
Discussion of Notice
The Newport to Ensenada Race is scheduled to occur on 26 April
1996. These Special Local Regulations permit Coast Guard control of
vessel traffic in
[[Page 4886]]
order to ensure the safety of spectators and participant vessels. In
accordance with the regulations in 33 CFR 100.1101, persons and vessels
shall not anchor in or loiter in the regulated area, or impede the
transit of participant or official patrol vessels, unless authorized by
the Coast Guard Patrol Commander.
Dated: February 5, 1996.
R.A. Appelbaum,
Rear Admiral, U.S. Coast Guard, Commander, Eleventh Coast Guard
District.
[FR Doc. 96-2763 Filed 2-8-96; 8:45 a.m.]
BILLING CODE 4910-14-M
Complete official Federal Register PDF
FR Doc. 96-2762 Drawbridge Operation Regulation; Sabine River, LA
[Federal Register Volume 61, Number 28 (Friday, February 9, 1996)]
[Rules and Regulations]
[Pages 4886-4887]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-2762]
-----------------------------------------------------------------------
DEPARTMENT OF TRANSPORTATION
33 CFR Part 117
[CGD08-95-017]
RIN 2115-AE47
Drawbridge Operation Regulation; Sabine River, LA
AGENCY: Coast Guard, DOT.
ACTION: Final rule.
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SUMMARY: At the request of the Kansas City Southern Railroad Company
(KCSRR), the Coast Guard is changing the regulation governing the
operation of the swing span bridge across the Sabine River, mile 36.2,
near Ruliff, Texas, by permitting the draw to remain closed to
navigation at all times.
EFFECTIVE DATE: This rule is effective on March 11, 1996.
ADDRESSES: Unless otherwise indicated, documents referred to in this
preamble are available for inspection or copying at the Eighth Coast
Guard District Office, 501 Magazine Street, Room 1313, New Orleans,
Louisiana 70130-3396, between 8 a.m. and 3:30 p.m., Monday through
Friday, except Federal holidays. The telephone number is (504) 589-
2965.
FOR FURTHER INFORMATION CONTACT:
Mr. John Wachter, Bridge Administration Branch, Eighth Coast Guard
District, telephone (504) 589-2965.
SUPPLEMENTARY INFORMATION:
Drafting Information
The principal persons involved in drafting this document are Mr.
John Wachter, Project Manager, Bridge Administration Branch, and LCDR
Thomas D. Beistle Project Attorney.
Regulatory History
On September 5, 1995, the Coast Guard published a notice of
proposed rulemaking entitled Drawbridge Operation Regulations; Sabine
River, LA in the Federal Register (60 FR 46069). The Coast Guard
received two letters of no objection to the proposal. No public hearing
was requested, and none was held.
Background and Purpose
KCSRR requested that the draw remain permanently closed. Navigation
requiring openings is non-existent and
[[Page 4887]]
the bridge has not been opened for twenty years. There is no commercial
navigation on the waterway in the vicinity of the bridge crossing.
Vertical clearance of the bridge in the closed position is 4 feet above
mean high water and 18 feet above mean low water. The occasional small
recreational boat which uses the waterway can transit the bridge
without requiring an opening. Permitting the permanent closure of the
draw will result in a significant savings in maintenance costs with no
adverse effect on navigational traffic.
Discussion of Comments
The National Marine Fisheries Service and Louisiana Department of
Natural Resources offered no objection to the proposed rule change.
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 cost 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).
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 proposal 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
This action has been analyzed in accordance with the principles and
criteria contained in Executive Order 12612, and it has been determined
that the final rulemaking does not have sufficient federalism
implications to warrant the preparation of a Federalism Assessment.
Environment
The Coast Guard considered the environmental impact of this rule
and concluded that, under section 2.B.2 of Commandant Instruction
M16475.1 (series), this rule is categorically excluded from further
environmental documentation. A ``Categorical Exclusion Determination''
is available in the docket for inspection or copying where indicated
under ADDRESSES.
List of Subjects in 33 CFR Part 117
Bridges.
Regulations
For the reasons set out in the preamble, the Coast Guard amends 33
CFR 117 as follows:
PART 117--DRAWBRIDGE OPERATION REGULATIONS
1. The authority citation for Part 117 continues to read as
follows:
Authority: 33 U.S.C. 499; 49 CFR 1.46; 33 CFR 1.05-1(g); section
117.255 also issued under the authority of Pub. L. 102-587, 106
Stat. 5039.
2. Sec. 117.493 is revised to read as follows:
Sec. 117.493 Sabine river.
(a) The draw of the Southern Pacific railroad bridge, mile 19.3
near Echo shall open on signal if at least 24 hours notice is given.
(b) The Kansas City Southern railroad bridge, mile 36.2 near Ruliff
and the draw of the S12 bridge, mile 40.8 at Starks, need not be opened
for passage of vessels.
Dated: January 25, 1996.
R.C. North,
Rear Admiral, U.S. Coast Guard, Commander, Eighth Coast Guard District.
[FR Doc. 96-2762 Filed 2-8-96; 8:45 am]
BILLING CODE 4910-14-M
Complete official Federal Register PDF
FR Doc. 96-2761 Drawbridge Operation Regulations; Red River, LA
[Federal Register Volume 61, Number 28 (Friday, February 9, 1996)]
[Rules and Regulations]
[Page 4886]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-2761]
-----------------------------------------------------------------------
DEPARTMENT OF TRANSPORTATION
33 CFR Part 117
[CGD08-95-024]
RIN 2115-AE47
Drawbridge Operation Regulations; Red River, LA
AGENCY: Coast Guard, DOT.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: This rule revokes the regulation for the Fulton St. Bridge
across the Red River, mile 88.1 at Alexandria, Rapides Parish,
Louisiana because the vertical lift span has been removed.
EFFECTIVE DATE: This regulation becomes effective on March 11, 1996.
FOR FURTHER INFORMATION CONTACT:
Mr. David M. Frank, Bridge Administration Branch, (504) 589-2965.
SUPPLEMENTARY INFORMATION:
Drafting Information
The principal persons involved in drafting this document are Mr.
David Frank, Project Officer and Lieutenant Commander C.D. Michel,
Project Attorney.
Background and Purpose
The Fulton St. Bridge was removed from service and demolished on
September 18, 1995. Since there is no longer a drawbridge at this
location, there is no longer a need for the drawbridge operation
regulation. Notice and public procedure have been omitted from this
action because the vertical lift bridge is no longer in existence.
Regulatory Evaluation
This rule is not major under Executive Order 12291 and not
significant under the ``Department of Transportation Regulatory
Policies and Procedures'' (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 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). This rule will have little impact on either vehicular
or navigational traffic. Because it expects the impact of this final
rule to be minimal, the Coast Guard certifies under 5 U.S.C. 605(b)
that it 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
The Coast Guard has analyzed this rule under the principles and
criteria contained in Executive Order 12612 and has determined that
this rule does not have sufficient federalism implications to warrant
the preparation of a Federalism Assessment.
Environment
The Coast Guard considered the environmental impact of this rule
and concluded that, under section 2.B.2 of Commandant Instruction
M16475.1 (series), this rule is categorically excluded from further
environmental documentation.
List of Subjects in 33 CFR Part 117
Bridges.
Regulations
In consideration of the foregoing, Part 117 of Title 33, Code of
Federal Regulations, is amended as follows:
PART 117--DRAWBRIDGE OPERATION REGULATIONS
1. The authority citation for Part 117 continues to read as
follows:
Authority: 33 U.S.C. 499; 49 CFR 1.46; 33 CFR 1.05-1(g); section
117.255 also issued under the authority of Pub. L. 102-587, 106
Stat. 5039.
Sec. 117.491 [Amended]
2. In Sec. 117.491, paragraph (a)(2) is removed and (a)(3) and
(a)(4) are redesignated (a)(2) and (a)(3), respectively.
Dated: January 8, 1996.
R.C. North,
Rear Admiral, U.S. Coast Guard Commander, Eighth Coast Guard District.
[FR Doc. 96-2761 Filed 2-8-96; 8:45 am]
BILLING CODE 4910-14-M
Complete official Federal Register PDF
FR Doc. 96-2758 Public Financing of Presidential Primary and General Election Campaigns
[Federal Register Volume 61, Number 28 (Friday, February 9, 1996)]
[Rules and Regulations]
[Page 4849]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-2758]
=======================================================================
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FEDERAL ELECTION COMMISSION
11 CFR Parts 9034 and 9038
[Notice 1996-5]
Public Financing of Presidential Primary and General Election
Campaigns
AGENCY: Federal Election Commission.
ACTION: Final rule; correcting amendments; announcement of effective
date.
-----------------------------------------------------------------------
SUMMARY: On November 16, 1995, the Commission published final rules
correcting promulgation errors made in final rules published June 16,
1995 (60 FR 31854) regarding public financing of presidential primary
and general election candidates. The Commission announces that these
rules are effective as of February 9, 1996.
EFFECTIVE DATE: February 9, 1996.
FOR FURTHER INFORMATION CONTACT:
Ms. Susan E. Propper, Assistant General Counsel, or Ms. Rita Reimer,
Attorney, 999 E Street, N.W., Washington, D.C. 20463, (202) 219-3690 or
toll free (800) 424-9530.
SUPPLEMENTARY INFORMATION: On June 16, 1995, the Commission published
final rules revising its regulations governing public financing of
presidential primary and general election candidates. 60 FR 31854.
These rules became effective on August 16, 1995. 60 FR 42429.
On November 16, 1995, the Commission published corrections to these
final rules to restore language inserted in 1991 that had inadvertently
been dropped from the rules. 60 FR 57538. The June 16 document deleted
language in 11 CFR 9034.4(a)(3)(ii) relating to candidates who continue
to campaign after their dates of ineligibility. It also deleted
language in 11 CFR 9038.2(b)(2)(iii) that shortened the time period
during which an ineligible candidate's non-qualified campaign expenses
would generate a repayment obligation, thereby reducing the amount of
the candidate's repayment. The correcting amendments restored the
deleted language.
Section 9039(c) of Title 26, United States Code, requires that any
rules or regulations prescribed by the Commission to implement Chapter
96 of Title 26 of the United States Code, the Presidential Primary
Matching Payment Account Act, be transmitted to the Speaker of the
House of Representatives and the President of the Senate thirty
legislative days prior to final promulgation. The revisions to 11 CFR
9034.4(a)(3)(ii) and 9038.2(b)(2)(iii) were transmitted to Congress on
November 9, 1995. Thirty legislative days expired in the Senate and the
House of Representatives on January 5, 1996.
Announcement of Effective Date
11 CFR sections 9034.4(a)(3)(ii) and 9038.2(b)(2)(iii), as
published at 60 FR 57538, are effective as of February 9, 1996.
Dated: February 5, 1996.
Lee Ann Elliott,
Chairman, Federal Election Commission.
[FR Doc. 96-2758 Filed 2-8-96; 8:45 am]
BILLING CODE 6715--01-M
Complete official Federal Register PDF
FR Doc. 96-2756 Defense Contract Audit Agency (DCAA), Freedom of Information Act Program
[Federal Register Volume 61, Number 28 (Friday, February 9, 1996)]
[Rules and Regulations]
[Page 4885]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-2756]
=======================================================================
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DEPARTMENT OF DEFENSE
Office of the Secretary
32 CFR Part 290
[DCAA Regulation 5410.8]
Defense Contract Audit Agency (DCAA), Freedom of Information Act
Program
AGENCY: Office of the Secretary, DoD.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: This amendment changes the area code listed for the DCAA
Eastern Regional Office from (404) to (770) due to area code changes
made by AT&T for the Smyrna, Georgia area.
EFFECTIVE DATE: February 9, 1996.
FOR FURTHER INFORMATION CONTACT:
Mr. Dave Henshall, DCAA Information and Privacy Advisor, ATTN: CMR,
Defense Contract Audit Agency, 8725 John J. Kingman Road, Suite 2135,
Fort Belvoir, VA 22060-6219, Telephone: (703) 767-1244.
List of Subjects in 32 CFR Part 290
Freedom of Information.
Accordingly 32 CFR Part 290 is amended as follows:
PART 290--[AMENDED]
1. The authority citation for Part 290 continues to read as
follows:
Authority: 5 U.S.C. 552.
Appendix B to Part 290--[Amended]
2. In Appendix B to Part 290, under the heading for Georgia, DCAA
Eastern Regional Office, remove, ``(404)'' and add ``(770).''
Dated: February 1, 1996.
L.M. Bynum,
Alternate OSD Federal Register Liaison Officer, Department of Defense.
[FR Doc. 96-2756 Filed 2-8-96; 8:45 am]
BILLING CODE 5000-04-M
Complete official Federal Register PDF
FR Doc. 96-2749 Use of the Fast Antimicrobial Screen Test for Bob Veal Calves
[Federal Register Volume 61, Number 28 (Friday, February 9, 1996)]
[Rules and Regulations]
[Page 4849]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-2749]
========================================================================
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. 28 / Friday, February 9, 1996 / Rules
and Regulations
[[Page 4849]]
DEPARTMENT OF AGRICULTURE
Food Safety and Inspection Service
9 CFR Part 310
[Docket No. 95-048DF]
RIN 0583-AC03
Use of the Fast Antimicrobial Screen Test for Bob Veal Calves
AGENCY: Food Safety and Inspection Service, USDA.
ACTION: Affirmation of effective date.
-----------------------------------------------------------------------
SUMMARY: On December 22, 1995, the Food Safety and Inspection Service
(FSIS) published a direct final rule titled ``Use of the Fast
Antimicrobial Screen Test for Bob Veal Calves.'' The direct final rule
permits the use of the Fast Antimicrobial Screen Test to be used in
lieu of the Calf Antibiotic and Sulfonamide Test under FSIS' bob veal
calf residue testing program. No adverse comments or written notice of
intent to submit adverse comments were received in response to the
direct final rule. Therefore, this rule is effective on February 20,
1996.
EFFECTIVE DATE: February 20, 1996.
FOR FURTHER INFORMATION CONTACT: Dr. Paula M. Cohen, Director,
Regulations Development, Policy, Evaluation and Planning Staff, Food
Safety and Inspection Service, U.S. Department of Agriculture,
Washington, DC 20250-3700; (202) 720-7164.
SUPPLEMENTARY INFORMATION: This notice affirms the effective date of
the direct final rule titled ``Use of the Fast Antimicrobial Screen
Test for Bob Veal Calves,'' that was published on December 22, 1995, at
60 FR 66482. The direct final rule permits the use of the Fast
Antimicrobial Screen Test to be used in lieu of the Calf Antibiotic and
Sulfonamide Test under FSIS' bob veal calf residue testing program.
FSIS did not receive any written adverse comments or written notice of
intent to submit adverse comments in response to this rule. Therefore,
the effective date of the rule is February 20, 1996.
Done at Washington, DC: February 2, 1996.
Michael R. Taylor,
Acting Under Secretary for Food Safety.
[FR Doc. 96-2749 Filed 2-8-96; 8:45 am]
BILLING CODE 3410-DM-P
Complete official Federal Register PDF
FR Doc. 96-2747 Secondary Direct Food Additives Permitted in Food for Human Consumption; Periodic Acid and Polyethylenimine
[Federal Register Volume 61, Number 28 (Friday, February 9, 1996)]
[Rules and Regulations]
[Pages 4871-4874]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-2747]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF HEALTH AND HUMAN SERVICES
Food and Drug Administration
21 CFR Part 173
[Docket No. 92F-0447]
Secondary Direct Food Additives Permitted in Food for Human
Consumption; Periodic Acid and Polyethylenimine
AGENCY: Food and Drug Administration, HHS.
ACTION: Final rule.
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SUMMARY: The Food and Drug Administration (FDA) is amending the food
additive regulations to provide for the safe use of periodic acid (PA)
and polyethylenimine (PEI) as fixing agents for the immobilization of
glucoamylase enzyme preparations from Aspergillus niger for use in the
manufacture of beer. This action is in response to a petition filed by
Enzyme Bio-Systems, Ltd.
DATES: Effective February 9, 1996; written objections and requests for
a hearing by March 11, 1996.
ADDRESSES: Submit written objections to the Dockets Management Branch
(HFA-305), Food and Drug Administration, rm. 1-23, 12420 Parklawn Dr.,
Rockville, MD 20857.-
FOR FURTHER INFORMATION CONTACT: Andrew D. Laumbach,- Center for Food
Safety and Applied Nutrition (HFS-217), Food and Drug Administration,
200 C St. SW., Washington, DC 20204, 202-418-3071.
SUPPLEMENTARY INFORMATION: In a notice published in the Federal
Register of December 1, 1993 (58 FR 63381), FDA announced that a food
additive petition (FAP 1A4288) had been filed by Enzyme Bio-Systems,
Ltd., 2600 Kennedy Dr., Beloit, WI 53511, proposing that the food
additive regulations be amended to provide for the safe use of periodic
acid and polyethyleneimine as fixing agents for immobilizing those
enzymes that are generally recognized as safe (GRAS) or approved as
food additives.
In a letter of February 2, 1994 (Ref. 1), the petition was amended
by the petitioner to provide for the use of PA and PEI as fixing agents
for the immobilization of glucoamylase enzyme preparations from A.
niger for use in the manufacture of light beer. The Bureau of Alcohol,
Tobacco, and Firearms, the Federal agency responsible for the
regulation of alcoholic beverages such as beer, has informed FDA that
the term ``light,'' with respect to the description of beer, is not
defined by regulation or any other regulatory standards (Ref. 2).
Accordingly, FDA has omitted the term ``light'' in the regulation
responding to this petition because there are no applicable Federal
standards defining ``light beer.''
Although the filing notice refers to polyethyleneimine as one of
the two petitioned additives under agency evaluation, it became
apparent during the review of the petition that the name of the
additive should be changed to be consistent with the name of the
substance that is currently listed in Sec. 173.357(a)(2) (21 CFR
173.357(a)(2)), ``polyethylenimine reaction product with 1,2-
dichloroethane.'' While the name of the additives differ, the additives
share the same Chemical Abstract Service (CAS) Registry Number (CAS
Reg. No. 68130-97-2) and are thus considered chemically identical by
the agency. The petitioner has agreed to the name change. Therefore,
the petitioned additive is identified as a PEI reaction product with
1,2-dichloroethane (DCE) in the regulation set forth below. However,
for purposes of discussion, this preamble will use the term
``polyethylenimine'' to refer to the additive, PEI reaction product
with 1,2-dichloroethane.
Glucoamylase enzyme preparation from A. niger is the substance
that is to be immobilized with the fixing agents set forth in the
regulation below; the regulatory status of that enzyme preparation is
not addressed by this action. The agency is, however, concurrently
evaluating this particular enzyme preparation, along with a variety of
other enzymes from other sources, in its review of petition GRASP
3G0016 (Docket No. 84G-0257) for the affirmation of the GRAS status of
certain enzymes. (Eight enzyme preparations included in GRASP 3G0016
were recently affirmed as GRAS (60 FR 32904, June 26, 1995).) The
petition GRASP 3G0016 contains published data and information to
support the view that the enzyme preparation glucoamylase from A. niger
has had a long history of use prior to 1958 in the preparation of food
as well as fermentable materials that are used in the production of
alcoholic beverages (Refs. 3 and 4). Further, FDA is not aware of any
data or information showing that glucoamylase from A. niger poses a
safety concern. Finally
[[Page 4872]]
FDA acknowledges that under the Federal Food, Drug, and Cosmetic Act
(the act), a food manufacturer may market a substance for use in food
on the basis of the manufacturer's independent determination that the
substance is GRAS and thus exempt from the definition of food additive
in section 201(s) of the act (21 U.S.C. 321(s)).
In this scientific and legal context, FDA believes that it is
appropriate to proceed with a final rule approving the use of PEI and
PA as fixing agents for immobilizing glucoamylase from A. niger for
use in the manufacture of beer even though the agency has not completed
the GRAS affirmation process for all of the enzymes that are the
subject of GRASP 3G0016, including glucoamylase enzyme preparation.
In its evaluation of PA and PEI for the proposed use, FDA reviewed
the safety of the additives and the chemical impurities that may be
present in the additives resulting from the manufacturing processes.
Although neither PA nor PEI has been shown to cause cancer, PEI may
contain minute amounts of unreacted ethylenimine (EI) and 1,2-
dichloroethane because these reactants are used in the manufacture of
the additive. EI and 1,2-dichloroethane have been shown to be
carcinogens in bioassays with mice and rats (Refs. 5, 6, and 7). The
presence of such impurities is not unique to this additive. Residual
amounts of reactants and manufacturing aids are commonly found as
contaminants in chemical products, including food additives.
I. Determination of Safety
Under section 409(c)(3)(A) of the act (21 U.S.C. 348(c)(3)(A)), the
so-called ``general safety clause,'' a food additive cannot be approved
for a particular use unless a fair evaluation of the data and
information available to FDA establishes that the additive is safe for
that use. FDA's food additive regulations (21 CFR 170.3(i)) define safe
as ``a reasonable certainty in the minds of competent scientists that
the substance is not harmful under the intended conditions of use.''
The anticancer or Delaney clause (section 409(c)(3)(A)) of the act)
further provides that no food additive shall be deemed to be safe if it
is found to induce cancer when ingested by man or animal. Importantly,
however, the Delaney clause applies to the additive itself and not to
the constituents of the additive. That is, where an additive has not
been shown to cause cancer, but contains a carcinogenic impurity, the
additive is properly evaluated under the general safety clause using
risk assessment procedures to determine whether there is a reasonable
certainty that no harm will result from the proposed use of the
additive. (See Scott v. FDA, 728 F.2d 322 (6th Cir. 1984).)
II. Evaluation of Safety of Petitioned Use of the Additives
FDA estimates that the petitioned use of the additives PA and PEI
to fix glucoamylase enzyme preparations would result in mean exposures
to these additives of 0.7 micrograms per person per day (g/
person/day) for iodate, which is formed from the decomposition of PA
(Ref. 8), and no greater than 330 g/person/day for PEI (Ref.
9).
FDA does not ordinarily consider chronic toxicological testing to
be necessary to determine the safety of additives whose use will result
in such low exposure levels (Ref. 10), and the agency has not required
such testing here. The agency has reviewed the available toxicological
data from acute toxicity studies on the additives. No adverse effects
were reported in these studies (Ref. 11).
FDA has evaluated the safety of PEI under the general safety
clause, considering all available data and using risk assessment
procedures to estimate the upper-bound limit of risk presented by EI
and DCE that may be present as impurities in the additive. This risk
evaluation of EI and DCE has two aspects: (1) Assessment of the
exposure to the impurities from the proposed use of the additive, and
(2) extrapolation of the risk observed in animal bioassays to the
conditions of probable exposure to humans.
A. Ethylenimine (EI)
Using estimates of the average intake of beer, FDA estimates the
potential exposure to EI from the petitioned use of PEI as an
immobilizing agent for glucoamylase enzyme preparations from A. niger
used in the production of beer to be 0.33 nanograms (ng)/person/day
(Ref. 9). To estimate the risk from EI (Ref. 5), the agency used data
from a carcinogen bioassay with the B6C3F1 strain of mice using the
oral route of exposure. EI treatment caused an increased incidence of
both lung and liver tumors that were neoplastic (Ref. 5).
Based on a potential exposure of 0.33 ng/person/day, FDA estimates
that the upper-bound limit of individual lifetime risk from the
potential exposure to EI from the use of PEI is 1.2 x 10-7 , or
less than 1.2 in 10 million (Refs. 12 and 13). Because of the numerous
conservative assumptions used in calculating the exposure estimate,
actual lifetime averaged individual exposure to EI is expected to be
substantially less than the worst-case exposure, and therefore, the
calculated upper-bound limit of risk would be less. Thus, the agency
concludes that there is a reasonable certainty that no harm will result
from the proposed use of the additive as a result of exposure to EI.
B. 1,2-Dichloroethane (DCE)
Again, using estimates of average intake of beer, FDA estimates the
potential exposure to DCE to be 0.33 ng/person/day (Ref. 9). The agency
used data from two bioassays sponsored by the National Cancer Institute
to estimate risk; the bioassays showed that DCE is carcinogenic to mice
and rats at multiple tissue sites (Ref. 6). Based on the potential
exposure of 0.33 ng/person/day, FDA estimates that the upper-bound
limit of individual lifetime risk from the potential exposure to DCE
from the use of PEI is 6.4 x 10-11, or less than 6.4 in 100
billion (Refs. 12 and 13). Because of the numerous conservative
assumptions used in calculating this exposure estimate, actual lifetime
averaged individual exposure to DCE is expected to be substantially
less than the worst-case exposure, and therefore, the calculated upper-
bound limit of risk would be less. Thus, the agency concludes that
there is a reasonable certainty that no harm will result from the
proposed use of PEI as a result of exposure to DCE.
C. Need for Specifications
The agency has also considered whether specifications are necessary
to control the amount of EI and DCE impurities in PEI. The agency finds
that specifications for PEI are necessary, and that the specifications
in Sec. 173.357(a)(2) should be retained. The PA does not require
specifications for its use (Ref. 14) because it does not contain
impurities that need to be controlled.
III. Conclusions
FDA has evaluated data in the petition and other relevant material
and concludes that the proposed use of PA and PEI as fixing agents for
the immobilization of glucoamylase enzyme preparations from A. niger
used in the manufacture of beer is safe (Ref. 15). Based on this
information, the agency has also concluded that the additives will
function as intended. Therefore, Sec. 173.357(a)(2) should be amended
as set forth below.
FDA is also amending Sec. 173.357(a)(2) to revise the division name
and address listed in the regulation as a source of methods
incorporated by reference. The change results from a reorganization of
[[Page 4873]]
the Center for Food Safety and Applied Nutrition announced in a final
rule published in the Federal Register of April 1, 1993 (58 FR 17091).
In accordance with Sec. 171.1(h) (21 CFR 171.1(h)), the petition
and the documents that FDA considered and relied upon in reaching its
decision to approve the petition are available for inspection at the
Center for Food Safety and Applied Nutrition by appointment with the
information contact person listed above. As provided in Sec. 171.1(h),
the agency will delete from the documents any materials that are not
available for public disclosure before making the documents available
for inspection.
IV. Environmental Impact
In the notice of filing for this petition that published in the
Federal Register of December 1, 1993, FDA gave interested parties an
opportunity to submit comments on the petitioner's environmental
assessment by January 3, 1994, to the Dockets Management Branch
(address above). FDA received no comments in response to that notice.
The agency has carefully considered the potential environmental
effects of this action. FDA has concluded that the action will not have
a significant impact on the human environment, and that an
environmental impact statement is not required. The agency's finding of
no significant impact and the evidence supporting that finding,
contained in an environmental assessment, may be seen in the Dockets
Management Branch (address above) between 9 a.m. and 4 p.m., Monday
through Friday.
V. Objections
Any person who will be adversely affected by this regulation may at
any time on or before March 11, 1996, file with the Dockets Management
Branch (address above) written objections thereto. Each objection shall
be separately numbered, and each numbered objection shall specify with
particularity the provisions of the regulation to which objection is
made and the grounds for the objection. Each numbered objection on
which a hearing is requested shall specifically so state. Failure to
request a hearing for any particular objection shall constitute a
waiver of the right to a hearing on that objection. Each numbered
objection for which a hearing is requested shall include a detailed
description and analysis of the specific factual information intended
to be presented in support of the objection in the event that a hearing
is held. Failure to include such a description and analysis for any
particular objection shall constitute a waiver of the right to a
hearing on the objection. Three copies of all documents shall be
submitted and shall be identified with the docket number found in
brackets in the heading of this document. Any objections received in
response to the regulation may be seen in the Dockets Management Branch
between 9 a.m. and 4 p.m., Monday through Friday.
VI. References
The following references have been placed on display in the Dockets
Management Branch (address above) and may be seen by interested persons
between 9 a.m. and 4 p.m., Monday through Friday.
1. Letter from McKenna & Cuneo to the Direct Additives Branch
(HFS-217), amending the filing of Food Additive Petition No. 1A4288,
February 2, 1994.
2. Memorandum from Wine and Beer Branch, Bureau of Alcohol,
Tobacco, and Firearms to the Direct Additives Branch (HFS-217),
regarding regulations for ``light'' beer, October 6, 1994.
3. Underkofler, L. A., R. R. Barton, and S. S. Rennert,
``Microbiological Process Report--Production of Microbial Enzymes
and their Applications,'' Applied Microbiology, 6:212-221, 1958.
4. Beckhorn, E. J., M. D. Labbee, and L. A. Underkofler,
``Production and Use of Microbial Enzymes for Food Processing,''
Journal of Agricultural Food Chemistry, 13:30-34, 1965.
5. Memorandum from the Quantitative Risk Assessment Committee to
the Office of Toxicological Sciences (HFS-100), concerning risk
estimate for ethyleneimine, August 22, 1985.
6. Memorandum from the Cancer Assessment Committee, Color and
Cosmetics Evaluation Branch (HFF-158) to Division of Food and Color
Additives (HFF-330), Preliminary Risk Assessment on 1,2-
Dichloroethane (DCE) Migrating from Food and Beverage Contact Paper,
June 23, 1982.
7. Memorandum from Quantitative Risk Assessment Committee to the
Office of Toxicological Sciences (HFF-100), Epichlorohydrin, 1,2-
Dichloroethane, and 2,4-Toluenediamine in Reverse Osmosis Membranes
(FAP 6B3955), February 2, 1988.
8. Memorandum from the Chemistry Review Branch (HFS-247) to the
Direct Additives Branch (HFS-217), concerning letter dated October
20, 1993, and submission dated October 27, 1993, from McKenna &
Cuneo, January 11, 1994.
9. Memorandum from the Chemistry Review Branch (HFS-247) to the
Direct Additives Branch (HFS-217), Enzyme Bio-Systems Ltd.,
Submission of September 12, 1991; February 17, 1993.
10. Kokoski, C. J., ``Regulatory Food Additive Toxicology'', in
Chemical Safety Regulation and Compliance, edited by Homburger, F.
and J. K. Marquis, S. Karger, New York, NY, pp. 24-33, 1985.
11. Memorandum from the Additive Evaluation Branch (HFF-158) to
the Direct Additives Branch (HFF-217), concerning evaluation of Food
Additive Petition No. 1A4288, February 25, 1992.
12. Memorandum from the Chemistry Review Branch (HFS-247) to the
Direct Additives Branch (HFS-217), Exposure estimate for QRAC
evaluation, February 8, 1994.
13. Memorandum from the Direct Additives Branch (HFS-217) to the
Quantitative Risk Assessment Committee (HFS-308), Estimation of the
upper-bound lifetime risk for ethyleneimine (EI) and 1,2-
dichlorethane (DCE) for uses requested in FAP 1A4288 (Enzyme Bio-
Systems Ltd.), April 15, 1994.
14. Memorandum from the Chemistry Review Branch (HFS-247) to the
Direct Additives Branch (HFS-217) concerning Food Additive Petition
No. 1A4288, April 5, 1994.-
15. Memorandum from the Additives Evaluation Branch No. 1 (HFS-
226) to the Direct Additives Branch (HFS-217), final evaluation
memorandum, May 31, 1994.
List of Subjects in 21 CFR Part 173
Food additives.
Therefore, under the Federal Food, Drug, and Cosmetic Act and under
authority delegated to the Commissioner of Food and Drugs, 21 CFR part
173 is amended as follows:
PART 173--SECONDARY DIRECT FOOD ADDITIVES PERMITTED IN FOOD FOR
HUMAN CONSUMPTION
1. The authority citation for 21 CFR part 173 continues to read as
follows:
-Authority: Secs. 201, 402, 409 of the Federal Food, Drug, and
Cosmetic Act (21 U.S.C. 321, 342, 348).
2. Section 173.357 is amended in the table in paragraph (a)(2)
under the headings ``Substances'' and ``Limitations'' by alphabetically
adding a new entry for ``periodic acid'' and by revising the entry for
``polyethylenimine reaction product with 1,2-dichloroethane'' to read
as follows:
Sec. 173.357 Materials used as fixing agents in the immobilization of
enzyme preparations.
* * * * *
(a) * * *
(2) * * *
[[Page 4874]]
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Substances Limitations
----------------------------------------------------------------------------------------------------------------
* * * * * *
*
Periodic acid (CAS Reg. No. 10450-60-9).
Polyethylenimine reaction product with 1,2-dichloroethane May be used as a fixing material in the
(CAS Reg.No. 68130-97-2) is the reaction product of immobilization of glucoamylase enzyme preparations
homopolymerization of ethylenimine in aqueous from Aspergillus niger for use in the manufacture
hydrochloric acid at 100 deg.C and of cross-linking with of beer.
1,2-dichloroethane. The finished polymer has an average May be used as a fixing material in the
molecular weight of 50,000 to 70,000 as determined by gel immobilization of:
permeation chromatography. The analytical method is 1. Glucose isomerase enzyme preparations for use in
entitled ``Methodology for Molecular Weight Detection of the manufacture of high fructose corn syrup, in
Polyethylenimine,'' which is incorporated by reference in accordance with Sec. 184.1372 of this chapter.
accordance with 5 U.S.C. 552(a) and 1 CFR part 51. Copies 2. Glucoamylase enzyme preparations from
may be obtained from the Division of Petition Control, Aspergillus niger for use in the manufacture of
Center for Food Safety and Applied Nutrition (HFS-215), beer. Residual ethylenimine in the finished
200 C St. SW., Washington, DC 20204, and may be examined polyethylenimine polymer will be less than 1 part
at the Center for Food Safety and Applied Nutrition's per million as determined by gas chromatography-
Library, 200 C St. SW., rm. 3321, Washington, DC, or at mass spectrometry. The residual ethylenimine is
the Office of the Federal Register, 800 North Capitol St. determined by an analytical method entitled
NW., suite 700, Washington, DC. ``Methodology for Ethylenimine Detection in
Polyethylenimine,'' which is incorporated by
reference in accordance with 5 U.S.C. 552(a) and 1
CFR part 51. Residual 1,2-dichloroethane in the
finished polyethylenimine polymer will be less than
1 part per million as determined by gas
chromatography. The residual 1,2-dichloroethane is
determined by an analytical method entitled,
``Methodology for Ethylenedichloride Detection in
Polyethylenimine,'' which is incorporated by
reference in accordance with 5 U.S.C. 552(a) and 1
CFR part 51. Copies may be obtained from the
Division of Petition Control, Center for Food
Safety and Applied Nutrition (HFS-215), 200 C St.
SW., Washington, DC 20204, or may be examined at
the Center for Food Safety and Applied Nutrition's
Library, 200 C St. SW., rm. 3321, Washington, DC,
or the Office of the Federal Register, 800 North
Capitol St. NW., suite 700, Washington, DC.
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-* * * * *
Dated: January 17, 1996.
William K. Hubbard,
Associate Commissioner for Policy Coordination.
[FR Doc. 96-2747 Filed 2-8-96; 8:45 am]
BILLING CODE 4160-01-F
Complete official Federal Register PDF
FR Doc. 96-2741 Federal Motor Vehicle Safety Standards; Child Restraint Systems
[Federal Register Volume 61, Number 28 (Friday, February 9, 1996)]
[Rules and Regulations]
[Pages 4938-4939]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-2741]
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DEPARTMENT OF TRANSPORTATION
National Highway Traffic Safety Administration
49 CFR Part 571
[Docket No. 74-09; Notice 44]
RIN 2127-AF02
Federal Motor Vehicle Safety Standards; Child Restraint Systems
AGENCY: National Highway Traffic Safety Administration (NHTSA),
Department of Transportation.
ACTION: Clarification of compliance date.
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SUMMARY: The subject of this document is a final rule that amended
Federal Motor Vehicle Safety Standard (FMVSS) No. 213, ``Child
Restraint Systems,'' (49 CFR Sec. 571.213) to add a greater array of
sizes and weights of test dummies for use in compliance tests. The
compliance date for the rule (i.e., the date on which manufacturers
must begin complying with the amendments) is September 1, 1996.
NHTSA typically includes language in its regulations, when
appropriate, to permit manufacturers the option of complying with new
requirements before the compliance date of those requirements. However,
the agency inadvertently omitted such language from the above-mentioned
rulemaking documents. This document corrects this oversight and
announces the date on which it became permissible for manufacturers to
begin voluntarily producing child restraint systems that comply with
the new requirements.
DATES: The effective date (i.e., the date on which the text of the CFR
is changed) of the final rule published July 6, 1995 (60 FR 35126) and
corrected September 29, 1995 (60 FR 50477), remains January 3, 1996.
Beginning January 3, 1996, it was permissible for manufacturers to
begin complying with these amendments voluntarily.
The mandatory compliance date for the amendments made by those
documents (i.e., the date on which manufacturers must begin complying
with the amendments) is September 1, 1996.
FOR FURTHER INFORMATION CONTACT:
For nonlegal issues: Dr. George Mouchahoir, Office of Vehicle
Safety Standards (telephone 202-366-4919).
For legal issues: Ms. Deirdre Fujita, Office of the Chief Counsel
(202-366-2992). Both can be reached at the National Highway Traffic
Safety Administration, 400 Seventh St., S.W., Washington, D.C., 20590.
SUPPLEMENTARY INFORMATION: On July 6, 1995 (60 FR 35126), NHTSA
published a final rule (later corrected September 29, 1995 (60 FR
50477)) amending Standard 213, ``Child Restraint Systems,'' to add a
greater array of sizes and weights of test dummies for use in
compliance tests and to revise labeling requirements. (This amendment
is hereinafter referred to as ``the upgraded requirements.'') The
compliance date for the rule for manufacturers of add-on (portable)
child restraints was January 3, 1996. In response to requests in
petitions for reconsideration from two manufacturers of add-on
restraints, NHTSA extended this compliance date to September 1, 1996,
to provide more leadtime to manufacturers of add-on restraints to meet
the requirements and to make the compliance date the same as that for
manufacturers of built-in restraints. 60 FR 63651, December 12, 1995.
Ms. Kathleen Weber of the Child Passenger Protection Research
Program of the University of Michigan Medical School (UM-CPP) asked the
agency whether manufacturers of add-on systems could begin meeting the
upgraded requirements before September 1, 1996, the compliance date for
those requirements. She stated that while some manufacturers may need
until September 1996 to comply, other manufacturers might already have
the capability to meet the upgraded requirements and might wish to meet
them before that date.
In its rules amending FMVSSs to add new requirements, NHTSA usually
discusses the issue of whether vehicles or equipment manufactured
before the compliance date for the new requirements may comply with
those new requirements in lieu of complying with the existing
requirements. However, in the rules establishing the upgraded
requirements for Standard 213 and extending the compliance date of the
requirements for add-on restraints to September 1996, the agency
inadvertently omitted any discussion of early voluntary compliance. To
correct that oversight, this document makes it clear that add-on and
built-in child restraint systems may comply with the upgraded
requirements in advance of the September 1, 1996 mandatory compliance
date without violating any other provisions in Standard 213 or 49
U.S.C. 30101 et seq. (formerly the National Traffic and Motor Vehicle
Safety Act).
NHTSA notes, however, that the upgraded requirements are subject to
change. There are still a number of pending petitions for
reconsideration of the July 1995 rule. While NHTSA responded to the
requests in the petitions for reconsideration of the
[[Page 4939]]
effective (compliance) date for the rule, the agency has yet to respond
to requests concerning several substantive provisions of the rule.
Those provisions include the ones specifying which child test dummy is
used to test a particular restraint system, and the ones specifying new
labeling requirements. The agency's decision on these requests will be
announced in the Federal Register in the near future. If the agency
makes changes in the upgraded requirements of July 1995 in response to
those requests, those changes could affect those manufacturers which
voluntarily comply with the July 1995 requirements before the mandatory
compliance date of September 1, 1996, as well as all child restraint
manufacturers after that date. Thus, while manufacturers which
voluntarily comply with the upgraded requirements as currently written
will be in compliance with Standard 213, they would be responsible for
complying with any revised requirements (made in response to petitions
for reconsideration) once the mandatory compliance date for those
revisions takes effect. If the agency makes any changes, it would
provide whatever leadtime, if any, is necessary to meet them.
This document does not impose any additional responsibilities on
any child restraint or vehicle manufacturer. Instead, it corrects an
oversight in the rules of July 6, 1995, as corrected, and of December
12, 1995. This document merely clarifies that manufacturers which wish
to produce restraints that comply with the upgraded requirements of
Standard 213 before September 1, 1996, may do so.
Authority: 49 U.S.C. 322, 30111, 30115, 30117 and 30166;
delegation of authority at 49 CFR 1.50.
Issued on: February 5, 1996.
Barry Felrice,
Associate Administrator for Safety Performance Standards.
[FR Doc. 96-2741 Filed 2-8-96; 8:45 am]
BILLING CODE 4910-59-P
Complete official Federal Register PDF
FR Doc. 96-2721 Criteria for the Certification and Re-Certification of the Waste Isolation Pilot Plant's Compliance With the 40 CFR Part 191 Disposal Regulations
[Federal Register Volume 61, Number 28 (Friday, February 9, 1996)]
[Rules and Regulations]
[Pages 5224-5245]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-2721]
[[Page 5223]]
_______________________________________________________________________
Part VI
Environmental Protection Agency
_______________________________________________________________________
40 CFR Part 194
Criteria for the Certification and Re-Certification of the Waste
Isolation Pilot Plant's Compliance With the 40 CFR Part 191 Disposal
Regulations; Final Rule
Federal Register / Vol. 61, No. 28 / Friday, February 9, 1996 / Rules
and Regulations
[[Page 5224]]
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 194
[FRL-5418-5]
RIN 2060-AE30
Criteria for the Certification and Re-Certification of the Waste
Isolation Pilot Plant's Compliance With the 40 CFR Part 191 Disposal
Regulations
AGENCY: Environmental Protection Agency.
ACTION: Final rule.
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SUMMARY: The Environmental Protection Agency (EPA) is promulgating
criteria for determining if the Waste Isolation Pilot Plant (WIPP) will
comply with EPA's environmental radiation protection standards for the
disposal of radioactive waste. If the Administrator of EPA determines
that the WIPP will comply with the standards for disposal, then the
Administrator will issue to the Secretary of Energy a certification of
compliance which will allow the emplacement of transuranic waste in the
WIPP to begin, provided that all other statutory requirements have been
met. If a certification is issued, EPA will also use this final rule to
determine if the WIPP has remained in compliance with EPA's
environmental radiation protection standards, once every five years
after the initial receipt of waste for disposal at the WIPP. This
rulemaking was mandated by the WIPP Land Withdrawal Act of 1992.
EFFECTIVE DATE: These regulations are effective April 9, 1996. The
incorporation of certain publications listed in the regulations is
approved by the Director of the Office of the Federal Register as of
April 9, 1996. A petition for judicial review of this final action must
be filed no later than April 9, 1996 pursuant to section 18 of the WIPP
Land Withdrawal Act of 1992 (Pub. L. 102-579).
FOR FURTHER INFORMATION CONTACT: Betsy Forinash, Mary Kruger or Martin
Offutt; telephone number (202)-233-9310; address: Radiation Protection
Division, Mail Code 6602J, U.S. Environmental Protection Agency,
Washington, DC 20460. Copies of the Background Information Document and
Economic Impact Analysis which accompany today's action may be obtained
at this address. The Agency has also published a document, accompanying
today's action, which responds in detail to significant public comments
that were received on the proposed rule. This document, entitled
``Response to Comments'' may be obtained by contacting Betsy Forinash.
SUPPLEMENTARY INFORMATION:
Introduction
Purpose of Today's Action
Today's action implements the Environmental Protection Agency's
(EPA) environmental radiation protection standards, 40 CFR part 191, by
applying them to the proposed disposal of transuranic radioactive waste
in the Waste Isolation Pilot Plant (WIPP). The EPA previously
promulgated 40 CFR part 191, ``Environmental Radiation Protection
Standards for Management and Disposal of Spent Nuclear Fuel, High-Level
and Transuranic Radioactive Wastes,'' to provide standards that will
apply to all sites (except Yucca Mountain) for the deep geologic
disposal of highly radioactive waste. Complete descriptions of 40 CFR
part 191 were published in the Federal Register in 1985 (50 FR 38066-
38089, Sep. 19, 1985) and 1993 (58 Fed. Reg. 66398-66416, Dec. 20,
1993). The WIPP is subject to 40 CFR part 191, and is being constructed
by the Department of Energy (DOE) near Carlsbad, New Mexico, as a
potential repository for the safe disposal of transuranic radioactive
waste. The EPA is required by the WIPP Land Withdrawal Act of 1992
(Pub. L. 102-579) to evaluate whether the WIPP will comply with
subparts B and C of 40 CFR Part 191--known as the ``disposal
regulations''--and to issue or deny a certification of compliance. The
Department of Energy is required to submit an application to EPA that
will be the basis of EPA's evaluation of whether a certification of the
WIPP's compliance with the disposal regulations should be issued. The
Department of Energy may not begin to emplace transuranic waste
underground for disposal at the WIPP until such time as a certification
of compliance has been issued and all other requirements of section
7(b) of the WIPP Land Withdrawal Act have been satisfied. With today's
rulemaking, the Agency establishes criteria by which to judge whether
the WIPP is in compliance with the ``disposal regulations'' and sets
forth procedural requirements for this determination.
Today's action, 40 CFR part 194, also applies to the periodic re-
certification of the WIPP's compliance with the disposal regulations.
The process of periodic re-certification, established by section 8(f)
of the WIPP Land Withdrawal Act, calls for EPA to determine whether the
WIPP continues to be in compliance with the disposal regulations,
assuming that an initial certification of compliance has been issued.
The Secretary of Energy must submit to the Administrator of EPA
documentation of the WIPP's continued compliance with the disposal
regulations, every five years after the initial receipt of transuranic
waste for disposal at the WIPP, until the end of the decommissioning
phase. The Agency will use the criteria set forth in today's rulemaking
in determining whether or not the WIPP will have continued to be in
compliance.
The WIPP was authorized in 1980, under section 213 of the
Department of Energy National Security and Military Applications of the
Nuclear Energy Authorization Act of 1980 (Pub. L. 96-164, 93 Stat.
1259, 1265), ``for the express purpose of providing a research and
development facility to demonstrate the safe disposal of radioactive
wastes resulting from the defense activities and programs of the United
States.'' The waste proposed for disposal in the WIPP, transuranic
radioactive waste (TRU waste), is waste consisting of materials such as
rags, equipment, tools, protective gear and sludges which have become
contaminated during atomic energy defense activities. The WIPP Land
Withdrawal Act defines transuranic waste to be waste containing more
than 100 nano-curies per gram of alpha-emitting radio-isotopes, with
half-lives greater than twenty years and atomic number greater than 92,
per gram of waste. The Act further stipulates that radioactive waste
shall not be transuranic waste if such waste also meets the definition
of high-level radioactive waste, has been specifically exempted from
the disposal regulations with the concurrence of the Administrator, or
has been approved for an alternate method of disposal by the Nuclear
Regulatory Commission. The radioactive component of transuranic waste
consists of man-made elements created during the process of nuclear
fission, chiefly isotopes of plutonium.
Statutory and Regulatory Basis
Today's action, 40 CFR part 194, was mandated by Congress in
section 8(c) of the WIPP Land Withdrawal Act. The criteria promulgated
in this action implement only those subparts of 40 CFR part 191 that
apply to the disposal of transuranic radioactive waste. As stated in
the Code of Federal Regulations, Appendix C of 40 CFR part 191 is
guidance for the implementation of the regulations contained in 40 CFR
part 191 that is not binding on the implementing agency, which is EPA
with respect to the WIPP. Appendix C was designed to apply to all
geologic
[[Page 5225]]
repositories for the disposal of highly radioactive wastes, not
necessarily to the specific site characteristics of the WIPP and not
only to transuranic waste. As a result, the Agency found in developing
today's action that only some of the guidance contained in Appendix C
had specific relevance to the WIPP. Today's action has been guided by
only those aspects of Appendix C that the Agency has determined, based
on technical and policy considerations, to be applicable to the WIPP.
Today's action, 40 CFR part 194, does not amend 40 CFR part 191.
With the Energy Policy Act of 1992, Congress mandated the development
of regulations to replace 40 CFR part 191 for the Yucca Mountain site
only, but the entire standard, 40 CFR part 191, remains applicable to
the WIPP. See 106 Stat. 2921, section 801(a)(1). Subpart A of 40 CFR
part 191 applies to the management of spent nuclear fuel, high-level
and transuranic radioactive wastes at sites designated for the disposal
of these wastes. Section 9(a) of the WIPP Land Withdrawal Act
stipulates that the Secretary of Energy shall comply with respect to
the WIPP with Subpart a of 40 CFR part 191. The Agency has not
implemented these requirements in today's action, 40 CFR part 194, but
intends to issue guidance for their application to the WIPP at a future
date.
Compliance With Other Environmental Laws and Regulations
The WIPP is regulated under the Resource Conservation and Recovery
Act (RCRA) and is subject to both the Part B licensing requirements and
the land disposal restrictions of that statute. The WIPP must comply
with other environmental laws, including, among other statutes, the
Clean Air Act (40 U.S.C. 7401 et seq.), the Toxic Substances Control
Act (15 U.S.C. 2601 et seq.) and the Comprehensive Environmental
Response, Compensation, and Liability Act of 1980 (42 U.S.C. 9601 et
seq.). This action does not affect the need for DOE to comply with
these and all other applicable environmental laws with respect to the
WIPP.
Public Involvement in Today's Rulemaking
The Agency has taken significant steps to involve the public in the
rulemaking for today's action. The EPA published an Advanced Notice of
Proposed Rulemaking (ANPR) in February, 1993 (58 FR 8029) which
solicited public comment on eight issues central to the development of
this final rule. The EPA again solicited public comment on a
preliminary draft of the proposed rule, in January, 1994. The Agency
published a notice of proposed rule on January 30, 1995, which
announced the start of a public comment period of 90 days (60 FR 5766).
The Agency convened a technical workshop in February, 1995, for the
express purpose of soliciting the views of both scientific experts and
the public on issues germane to the rulemaking. In March, 1995, the
Agency held public hearings in three cities in New Mexico to solicit
public input on the notice of proposed rule. On August 1, 1995, the
Agency re-opened the comment period on the notice of proposed rule for
an additional 45 days (60 FR 39131). During the entire comment period
on the proposed rule, the Agency received over 100 written public
comments. The Agency has responded to significant comments received on
the notice of proposed rule from both written submissions and from
testimony at the public hearings, including late written comments
received soon after the close of the second part of the comment period,
in a document published concurrently with today's action. In September,
1995, EPA conducted a public meeting of the WIPP Review Committee of
the National Advisory Council for Environmental Policy and Technology
(NACEPT) on three issues relevant to today's action. During this
meeting, members of the public provided formal presentations and oral
comments to the committee. See 60 FR 43470-43471 (Aug. 21, 1995).
Summary of the Final Rule
The supporting rationale for today's action, found in the following
summary and discussion of principal changes, is further explained in
the Background Information Document and the Response to Comments which
accompany today's action, copies of which may be obtained as described
in the start of this notice. Those sections of the final rule which
have remained unchanged since the rule's proposal are also further
explained in the notice of proposed rule (60 FR 5766-5791).
Subpart A: General Provisions
Subpart A of the final rule establishes provisions related to the
structure of the final rule itself, including: Purpose, scope and
applicability; definitions; substitution of alternative provisions for
those promulgated in today's final rule; and procedures which shall be
followed in communications and written reports submitted by the
Secretary of Energy to the Administrator. Further provisions are set
forth which incorporate by reference several publications. Publications
so incorporated shall have the same legal force and effect as the other
requirements of the final rule.
Section 194.4 of subpart A permits the Agency to specify conditions
on the issuance of a certification and to issue a modification,
suspension or revocation of a certification. The Agency would, for
example, specify conditions in the event that the necessary confidence
in the WIPP's compliance could be achieved by the implementation of
additional measures, or if EPA determines that the WIPP will comply
with the disposal regulations if certain terms of the application were
to be changed.
The Agency would consider issuing a modification, suspension or
revocation whenever the disposal activities or disposal system change
such that significant information contained in the most recent
compliance application were no longer to remain true. Such a situation
may occur if (1) DOE plans to make a significant change to the disposal
system or disposal activities, or (2) DOE discovers that a significant
change has occurred in the disposal system or disposal activities; in
either case DOE must inform the Administrator in writing. If DOE finds
the latter condition to be true, then DOE must determine if a release
of waste from the disposal system has occurred or is expected to occur
that would cause the numerical requirements of the disposal regulations
to be exceeded. Releases which might occur during management
operations, covered under subpart A of 40 CFR part 191, which do not
relate to compliance with the disposal regulations would not
necessitate this investigation. However, if DOE conducts this
investigation and determines that such a release has occurred or is
likely to occur, then DOE shall notify the Administrator of this fact
and immediately cease emplacing waste in the WIPP. In such situations,
the Administrator will determine which of three actions--modification,
suspension or revocation--will be appropriate. Any modifications and
revocations issued by EPA would affect the certification issued
pursuant to section 8(d)(1) of the WIPP Land Withdrawal Act and must be
conducted by rulemaking under section 553 of the Administrative
Procedure Act. See 5 U.S.C. 553. A suspension may be issued at any time
at the Administrator's discretion so as to promptly address any
potential threat to public health. A suspension shall remain in place
until such time as DOE shall have effected remediations as necessary to
re-establish the WIPP's compliance with the disposal regulations or
until EPA will
[[Page 5226]]
have modified or revoked the certification. DOE shall not restart
emplacing waste in the WIPP until the Administrator notifies DOE in
writing that the suspension has been lifted.
Subpart B: Compliance Certification and Re-certification Applications
Subpart B of the final rule sets forth requirements for the format
and content of compliance applications. Section 194.11 of the final
rule stipulates that DOE must submit a complete compliance application
before the one-year, statutory review period shall commence. See Pub.
L. 102-579, section 8(d)(1). Should DOE's initial submission be
incomplete, the Administrator will explain the nature of the deficiency
and will request DOE to submit further information until the
Administrator has notified the Secretary that all materials necessary
for a complete application have been received. This process will ensure
that the Agency's one-year period will be devoted exclusively to a
substantive, meaningful review. This provision applies as well to the
compliance applications periodically submitted by DOE for re-
certification of compliance. Once the Administrator has notified the
Secretary of Energy that a complete compliance application for re-
certification has been received, the Agency will commence the six month
review period as provided for in section 8(f) of the WIPP Land
Withdrawal Act. Section 194.12 requires that 30 copies of the
compliance applications and any accompanying materials shall be
submitted to the Administrator. Section 194.13 requires that compliance
applications be accompanied by any referenced materials, unless such
materials are generally available.
Section 194.14 of the final rule lists those elements which the
Agency requires to be in a complete compliance application. In general,
compliance applications must include information relevant to
demonstrating compliance with each of the individual sections of the
final rule. The Agency intends to publish the final version of the
Compliance Application Guidance (CAG) at a later date to provide
detailed guidance on the submission of a complete compliance
application.
Section 194.15 of the final rule specifies that DOE must submit any
additional information that will have been gathered during the elapsed
five-year period and that is relevant to compliance with the disposal
regulations. To facilitate the Agency's review of compliance
applications for re-certification, today's final rule stipulates that
DOE will not have to re-submit information that will have been included
in previous compliance applications, provided that the information will
have remained true and accurate. The current compliance application
should clearly reference such information so that the Agency's review
of the section in question can be accomplished expeditiously.
Subpart C: Compliance Certification and Re-certification
Subpart C establishes the requirements that apply to the
performance assessments and compliance assessments that will be used to
demonstrate compliance with the numerical requirements of the disposal
regulations. In addition, subpart C implements the six assurance
requirements of the disposal regulations and also establishes seven
general requirements in Secs. 194.21 through 194.27 which must be met
by all portions of and all activities associated with compliance
applications.
Section 194.21, inspections, provides EPA with right of inspection
of all activities at the WIPP and all activities located off-site which
provide information included in compliance applications. The Agency
will conduct periodic inspections, both announced and unannounced, to
verify the adequacy of information included in the compliance
applications. The Agency may conduct its own laboratory tests, in
parallel with those conducted by DOE, so as to confirm the adequacy of
the techniques employed at those facilities. The Agency may also
inspect any relevant records kept by DOE, including those records
required to be generated pursuant to today's action.
Section 194.22, quality assurance (QA), sets requirements that
apply to data and information collected as part of the WIPP program.
The Agency requires quality assurance programs to be implemented, as
soon as practicable after April 9, 1996, that meet the requirements of
the American Society of Mechanical Engineers (ASME) ``Quality Assurance
Program Requirements for Nuclear Facilities'' (NQA-1-1989), ASME's
``Quality Assurance Requirements of Computer Software for Nuclear
Facility Applications'' (part 2.7 of NQA-2a-1990 addendum to ASME NQA-
2-1989), and ASME's ``Quality Assurance Requirements for the Collection
of Scientific and Technical Information on Site Characterization of
High-Level Nuclear Waste Repositories,'' (NQA-3-1989 edition),
excluding sections 2.1(b), 2.1(c) and 17.1. Section 194.5 of the final
rule incorporates these three publications by reference. The Agency
believes that ASME's standards offer the most comprehensive and
specific set of requirements for nuclear facilities and has therefore
used these standards in place of establishing new requirements.
Paragraph (a)(2) of Sec. 194.22 requires that DOE must implement a
quality assurance program that meets the above three sets of ASME's
requirements for seven specific program elements of the WIPP and for
any other system, structure, component, or activity important to the
containment of waste in the disposal system.
Data that were collected prior to the implementation of the above
programs must also satisfy quality assurance requirements. Any
compliance application must demonstrate, subject to the approval of the
Administrator or the Administrator's authorized representative, that
such data were qualified using one or more of the following four
methodologies: (1) Use of a methodology that is substantially
equivalent in effect to the three sets of ASME's requirements; (2) peer
review that is compatible with NUREG-1297; (3) corroborating data; or
(4) confirmatory testing. The Agency believes that each of these latter
three methods provides a means of inferring the quality of the existing
data by subjecting some aspect of that data to additional scrutiny.
Peer review involves a critical evaluation by an independent review
group of the adequacy with which the experiments used to acquire this
data were planned and conducted. The use of corroborating data
evaluates the degree to which the existing data agree with data
generated from similar work that has already been published in
scientific journals, along with an appraisal of the latter's quality.
Confirmatory testing involves repeating a small portion of the
experiments, using quality assurance methods that meet the requirements
of ASME's standards, and comparing the resulting data to the data in
question. In the last two alternate methodologies, the level of
agreement between the existing data and the corroborating or
confirmatory data provides an objective measure to assess the quality
of the existing data, if only in part. All quality assurance programs,
both for existing data and data that has yet to be collected, must
assess the accuracy, precision, representativeness, completeness and
comparability of data. To verify that the quality assurance programs
satisfy the requirements of this section, the Administrator will
conduct inspections which may include surveillance, audits and
management systems reviews.
Section 194.23, models and computer codes, sets requirements for
the models and computer codes used in
[[Page 5227]]
performance assessments and compliance assessments. Compliance
applications must demonstrate that performance assessments and
compliance assessments make a logical progression from conceptual
models to mathematical models to numerical models and finally to
computer models and codes. Compliance applications must provide
information on and descriptions of models and computer codes which will
permit the Agency to conduct a review of the modeling approach,
theoretical bases, and the methodology employed in developing the list
of processes and events used to support the compliance application.
Compliance applications must include evidence that all computer codes
comply with the requirements of part 2.7 of ASME's NQA-2a-1990
addendum.
The Agency intends to conduct detailed reviews of the computer
codes used in performance and compliance assessments, since it is the
results of computer codes themselves that will be compared to the
numerical requirements found at section 13 of 40 CFR part 191.
Compliance applications must provide: Descriptions of the theoretical
backgrounds for each model and the method of analysis or assessment; a
line-by-line listing of codes, which may be submitted in electronic
format; a discussion of the treatment of correlation between
parameters; and other information necessary to permit the Agency to
conduct its review. Upon request, DOE must provide the Agency with the
means to conduct its own simulations. The final rule requires that any
computer files and hardware that will be necessary for performing
simulations shall be made available within 30 days of a request from
the Administrator or the Administrator's authorized representative.
Section 194.24, waste characterization, has been revised in the
final rule. A discussion of the rationale for the changes is contained
below in the section of the supplementary information, ``Principal
changes in the final rule.'' The final rule requires DOE to identify
and describe quantitative information on those physical, chemical and
radiologic characteristics of the waste that can influence disposal
system performance. The Agency does not expect or require that every
drum of transuranic waste be opened in an effort to provide an
exhaustive characterization of the contents. Rather, the Agency expects
that DOE will sample drums of waste to the extent necessary and will
combine the results with other information such as process knowledge to
determine the waste characteristics. The level of accuracy needed in
waste characterization is determined by the degree of accuracy assumed
in the compliance application. A waste characteristic, as defined in
the final rule, is a physical or chemical parameter that serves as a
quantitative input to performance assessments or compliance
assessments, examples of which are solubility and compactibility. DOE
must conduct an analysis to identify and assess the impact on long-term
performance of those waste characteristics which influence the
containment of waste in the disposal system. This section of the final
rule lists specific characteristics which must, at a minimum, be
included in the analysis.
The final rule requires DOE to establish limits on the quantities
of different ``waste components,'' such as cellulosics, metals or
activity in curies, that may be proposed for disposal and emplaced in
the WIPP. A waste component is distinguished from a waste
characteristic in that the former is an amount of a type of waste
present in the total inventory-- expressed as a volume, mass or weight
(or curies, in the case of activity)--whereas the latter is any
parameter that describes the physical, chemical or radiologic
properties and behavior of some or all of the containers of waste. For
example, a container of waste might contain a given quantity of
chelating agents, which are a waste component. An example of a
corresponding waste characteristic is the solubility in brine of the
radionuclides in a container. The final rule requires that DOE
establish upper or lower limits, as appropriate, on the total amount of
each waste component that may be emplaced for disposal in the WIPP. A
lower limit might be specified for gas-gettering waste components, and
an upper limit might be specified for cellulosics. The final rule
requires that these upper and lower limits be established based on the
total inventory proposed for disposal such that the results of a
performance assessment will comply with the containment requirements of
40 CFR 191.13 when these values are used.
Performance assessments and compliance assessments must use the
values for each waste characteristic as each would exist in the
disposal system assuming that an amount of each waste component, equal
to that component's upper or lower limit, as appropriate, were emplaced
in the WIPP. As waste is emplaced in the WIPP, a running total must be
kept of each waste component. The final rule requires that the quantity
of each waste component that has been emplaced in the repository shall
not cause the upper limits to be exceeded or, as appropriate, shall not
preclude the total emplaced quantity of any waste component from
eventually reaching its lower limit. Compliance with the lower limits
shall be demonstrated by DOE using information on the waste loading
scheme, the total amount of that waste component that has been emplaced
in the disposal system to date, the total amount of that waste
component listed in the total waste inventory described in the current
compliance application, and the amount of that waste component that
still has yet to be generated. DOE must establish a system of controls
to verify that this requirement will be met and shall submit
documentation demonstrating this with any compliance application.
Section 194.24 also requires that performance assessments and
compliance assessments shall be conducted in accordance with the waste
loading procedures and schemes that will be employed. If a waste
loading scheme is not included in the compliance application, the
performance assessments and compliance assessments must assume that the
containers of waste are randomly emplaced in the WIPP. Thus, for
example, DOE shall not assume that the waste components and
characteristics are evenly distributed throughout the repository unless
a proposed loading scheme that would cause this to occur has been
included in the current compliance application.
The final rule extends the requirements of Sec. 194.22, on quality
assurance, to process knowledge acquired and used during waste
characterization activities. The final rule specifies that the total
inventory of waste proposed for disposal in the WIPP must comply with
the limitations on transuranic waste found in the WIPP Land Withdrawal
Act. The final rule enables the Administrator to use audits and
inspections to verify compliance with the waste characterization
section.
Section 194.25 of the final rule specifies requirements on future
state assumptions. The Agency recognizes the inherently conjectural
nature of specifications on future states and wishes to minimize such
speculation in compliance applications. The Agency has found no
acceptable methodology that could make reliable predictions of the
future state of society, science, languages or other characteristics of
future mankind. The Agency does believe that established scientific
methods could make plausible predictions regarding the future state of
three classes of natural processes,
[[Page 5228]]
namely geologic, hydrogeologic and climatic conditions. Hence, the
final rule requires that performance assessments and compliance
assessments shall include dynamic analyses of geologic, hydrogeologic
and climatic processes and events that will evolve over the 10,000-year
regulatory time frame. DOE shall assume that all other present day
conditions will exist in their present state for the entire 10,000-year
regulatory time frame.
Section 194.26 sets requirements that apply to expert judgment.
Typically, expert judgment is used to elicit two types of information:
(1) Numerical values for parameters (variables) which are measurable
only by experiments that cannot be conducted due to limitations of
time, money and physical situation; and (2) essentially unknowable
information, such as which features should be incorporated into passive
institutional controls that will deter human intrusion into the
repository. Quality assurance must be applied to expert judgment to
verify that the procedures for conducting and documenting the expert
elicitation have been followed. The final rule prohibits expert
judgment from being used in place of experimental data unless DOE can
provide a justification explaining why the necessary experiments could
not be conducted. Expert judgment may substitute for experimental data
in those instances where limitations of time, resources or physical
setting would have precluded the successful and timely collection of
data.
The compliance application must provide documentation which
demonstrates that the experts have the necessary qualifications for
addressing the questions and issues put before them. Compliance
applications must explain the connection between the question posed to
the expert panel and the manner in which the final report of the panel
is used in the compliance application. These requirements have been
included to prevent any misuse of expert judgment as might result from
the use of the results of one elicitation process in answer to a new
and separate question that was not posed to the experts and for which,
if asked, the experts might have provided a different answer.
The final rule places requirements on the composition of the expert
panel, including the fraction of panel members who are not employed by
DOE. At least two-thirds of the experts sitting on an expert panel
shall not be employed directly by DOE or its contractors. University
professors with grants from DOE for research not related to the WIPP
will not be considered employees or contractors of DOE, nor will the
New Mexico Environmental Evaluation Group and the National Academy of
Sciences' Board on Radioactive Waste Management and WIPP Panel. In
exceptional instances, DOE may use as few as one-third non-DOE
employees if a sufficient number of non-DOE employees cannot be found.
DOE must submit documentation which demonstrates that a sufficient
number of non-DOE experts were not available. In the proposed rule, the
Agency had set this minimum at one-half of the expert panel's
membership. However, because of the pervasive effort of DOE in the
fields of highly radioactive waste disposal and actinide chemistry, the
Agency has lessened this requirement in the final rule in striving to
balance the importance of technical expertise with the need for the
advice to be impartial.
The section on expert judgment requires that the public be given
the opportunity to present information to the expert panel to allow the
public's views to be incorporated in the expert judgment process. This
requirement will help prevent an inappropriately narrow spectrum of
background information from being presented to the experts which might
have slanted the outcome of the elicitation process. This section also
requires that the elicitation process be well documented so as to
demonstrate a logical progression from the first statement of the issue
given to the panel members to the combination and presentation in the
final report of the elicited results.
Section 194.27, peer review, has been revised in the final rule.
The rationale for these changes is discussed in the section of the
supplementary information, ``Principal changes in the final rule.''
Given that decisions in the field of highly radioactive waste disposal
are inherently first-of-a-kind, the Agency is requiring peer review so
that others working in the field can confirm the adequacy of these
decisions and interpretations. The final rule requires DOE to conduct
peer review of three specific elements of the WIPP program. In
specific, the Agency has required peer review of the conceptual models
that DOE selects and develops, waste characterization assessments and
the study of engineered barriers. The requirement for peer review of
conceptual models will enrich DOE's process of selecting and developing
conceptual models with a broad spectrum of scientific viewpoints. Waste
characterization is a field in which many new and precedent-setting
techniques will be employed in areas in which no standardized practice
exists. Peer review of waste characterization is indicated due to the
importance of a knowledge of the physical, chemical and radiological
state of the waste in predictions of the long term performance of the
disposal system. This section, Sec. 194.27, requires peer review to be
conducted of the study of engineered barriers so as to ensure that the
best possible information is provided to DOE on the selection of
engineered barriers. Additionally, this section requires compliance
applications to include documentation of any peer review activities
that DOE may have conducted apart from those required by this rule,
including those activities which are similar to peer review, such as
the reviews conducted by the WIPP Panel of the National Academy of
Sciences.
The Agency is requiring that peer review which occurs subsequent to
the promulgation of today's action must be conducted according to the
guidelines of NUREG-1297. The final rule incorporates this publication
by reference, as specified in Sec. 194.5. The specific requirements in
NUREG-1297 that discuss for which activities peer review should be
conducted do not apply, nor do they supersede the requirements of the
final rule. Peer review which has been conducted prior to today's
action must be documented in compliance applications. Such past peer
review activities must conform to either NUREG-1297 or to an alternate
set of criterion which are substantially equivalent in effect to NUREG-
1297 and which have been approved by the Administrator.
Sections 194.31 through 194.34 of the final rule implement the
numerical containment requirements of 40 CFR 191.13. Section 194.31,
which provides instructions for setting the release limits of appendix
A of 40 CFR part 191, has been revised from the proposed rule. The
rationale for this change is explained in the section, ``Principal
changes in the final rule.'' Section 194.31 now specifies that the
release limits are to be determined based on the total activity, in
curies, of transuranic waste present at the time of disposal (as
defined in 40 CFR 191.2). If the activity of a waste container is
assayed prior to this time, then the known rates of decay for the
radionuclides in the container should be used to calculate the activity
of the waste as it will exist at the anticipated time of disposal.
Section 194.32 stipulates that performance assessments shall
include both natural and man-made processes and events which can have
an effect on the disposal system. Performance assessments need not
include those processes and events which have a
[[Page 5229]]
probability of less than 1 in 10,000 of occurring during the 10,000-
year regulatory time frame. For the purposes of this screening
requirement, processes and events must be analyzed in the most general
formulation possible; for example, the probability of dissolution must
be set equal to the probability of all types of dissolution occurring
anywhere in the Delaware Basin during the regulatory time frame.
Performance assessments should, however, conduct separate analyses of
the different dissolution fronts which occur in the Delaware Basin so
as to account for the different hydrogeologic characteristics of each.
With respect to man-made processes and events, performance
assessments must include the effects of drilling events and excavation
mining. Some natural resources in the vicinity of the WIPP can be
extracted by mining. These natural resources lie within the geologic
formations found at shallower depths than the tunnels and shafts of the
repository and do not lie vertically above the repository. Were mining
of these resources to occur, this could alter the hydrologic properties
of overlying formations--including the most transmissive layer in the
disposal system, the Culebra dolomite--so as to either increase or
decrease ground-water travel times to the accessible environment. For
the purposes of modeling these hydrologic properties, this change can
be well represented by making corresponding changes in the values for
the hydraulic conductivity. The Agency has conducted a review of the
data and scientific literature discussing the effects mining can induce
in the hydrologic properties of a formation. Based on its review of
available information, the Agency expects that mining can, in some
instances, increase the hydraulic conductivity of overlying formations
by as much as a factor of 1,000, although smaller or even negligible
changes can also be expected to occur. Thus, the final rule requires
DOE to consider the effects of mining in performance assessments. In
order to consider the effects of mining in performance assessments, DOE
may use the location-specific values of hydraulic conductivity,
established for the different spatial locations within the Culebra
dolomite, and treat them as sampled parameters with each having a range
of values varying between unchanged and increased 1,000-fold relative
to the value that would exist in the absence of mining.
The Agency recognizes that other numerical changes to the hydraulic
conductivity values may be more appropriate for use in representing the
effects of mining. Compliance applications must include a discussion of
the rationale and experimental data which support the hydraulic
conductivity values chosen and the effects of mining on the range of
these values. The Agency further recognizes that some parameter other
than hydraulic conductivity might be demonstrated to incorporate,
equally or perhaps better, the potential effects of mining in
performance assessments. DOE may elect to use another parameter,
provided that DOE can demonstrate that the use of this other parameter
is equally or more appropriate than hydraulic conductivity in
reflecting the potential effects of mining on the disposal system.
Pursuant to Sec. 194.34 of the final rule, performance assessments must
randomly sample across the full range of values that have been
established for all uncertain variables, including the hydraulic
conductivity of the Culebra dolomite established as discussed above.
The final rule specifies those assumptions and methods that shall
be used in performance assessments to account for the effects of
mining. As with drilling, the historical record of the past 100 years'
mining activity in the Delaware Basin provides a reasonable basis for
predicting the nature of future mining activity. Accordingly, the
Agency examined the records of past mining of mineral resources in the
Delaware Basin, using data supplied by the U.S. Bureau of Land
Management. The Agency found that the areal extent of mining in the
immediate vicinity of WIPP over the past 100 years covered roughly one
percent of the land area of the entire Delaware Basin and used this
information to predict the likelihood that a mining event would occur
in succeeding centuries. Accordingly, the final rule requires
performance assessments to assume that, in each century after closure
of the repository, there will be a 1 in 100 chance that a single mining
event will occur within the controlled area. As explained later in this
section, the assumed mining event would remove all of the existing
mineral deposits lying within the controlled area that are of similar
quality and type to those minerals currently extracted in the Delaware
Basin. For each century during the regulatory time frame, performance
assessments should determine whether this mining event will occur,
based on the 1 in 100 probability, proceeding one century at a time
from the start of the 10,000-year period. If a positive determination
is made, then performance assessments must assume that the single
mining event occurs at the start of that century and further assume
that no mining will occur thereafter. The Department may elect to use
an alternate method for calculating the point in time at which mining
will occur, provided that such method would not, on average, predict
that mining will occur at times later than those calculated using the
method in the final rule.
The final rule specifies that mining should be assumed to occur
within the controlled area, with the size and shape of the mine
conforming to existing mineral deposits that are similar in type and
quality to those extracted in the Delaware Basin. The Agency based this
requirement on a consideration of the physical nature of mining
activities. First, the Agency assumed that the size and shape of a mine
will be dictated by the size and shape of the mineral deposits that are
to be extracted with no two mines being alike. The mineral deposits
that will be mined in the future may consist of minerals of current
economic interest, or of materials not useful or valuable in present-
day terms. Without knowledge of what these future resources might be,
any attempt to predict the size and shape of the associated mineral
deposits would be speculative, as would any attempt to determine the
size and shape of the mines used to extract them. The Agency further
recognized that individual mines are of highly irregular shape and
there is every reason to believe that deposits of minerals that are
mined in the future will also vary in size and be highly irregular in
shape. The Agency believes that no logical mathematical scheme exists
that could be used to predict the potentially wide variety of sizes and
highly irregular shapes. In light of the speculativeness and
mathematical difficulty, the Agency has chosen to use existing mineral
deposits as ``stand-ins'' to be used to determine the size and shape of
the unknown mineral deposits that might be mined in the future. Thus,
the final rule requires performance assessments to assume that all the
presently known mineral resources lying within the controlled area will
be extracted at the single point in time determined by the method in
the final rule, discussed above. No further mining will be assumed to
occur, since the available mineral deposits will have been depleted.
The type of minerals that shall be assumed to be extracted are those
mineral deposits that are similar in quality and type to those that are
currently extracted in the Delaware Basin.
[[Page 5230]]
Performance assessments may assume that the likelihood of mining
may be decreased by PICs and active institutional controls, to the
extent that can be justified in the compliance application and to a
degree identical to that assumed for drilling. The requirements of
sections 41 and 43 of the final rule therefore will apply to the
consideration of mining in performance assessments.
Section 194.33, consideration of drilling events, has been revised
since the proposed rule. The rationale for the new provisions is
explained in the section below, entitled ``Principle changes in the
final rule.'' Section 194.2 includes two definitions relevant to the
consideration of drilling events. ``Deep drilling'' denotes those
drilling events that reach or exceed a depth 2150 feet below the
surface where such drilling occurred. ``Shallow drilling'' denotes
those drilling events that do not reach to a depth 2150 feet below the
surface where such drilling occurred. Sections 194.32 and 194.33 of the
final rule require that performance assessments include the effects of
both deep drilling and shallow drilling, whether such drilling has
occurred prior to the time at which the compliance application is
prepared, can be reasonably expected to occur in the near future based
on existing leases, or can be expected to occur in the future during
the 10,000-year regulatory time frame.
The future rates of both deep drilling and shallow drilling shall
each be set equal to the rate at which deep drilling and shallow
drilling, respectively, have occurred in the Delaware Basin during the
100-year period immediately prior to the time the current compliance
application is prepared. The Delaware Basin is defined, in Sec. 194.2,
to be the surface and subsurface features which lie inside the
innermost edge of the Capitan Reef and, where the Capitan Reef is
absent to the south, the features which lie to the north of a straight
line connecting the southeastern point of the Davis Mountains and the
southwestern point of the Glass Mountains.
Performance assessments must add together all releases of
radionuclides which are predicted to occur during the 10,000-year
regulatory time frame to arrive at the cumulative releases from the
disposal systems; the containment requirements of 40 CFR 191.13 apply
to cumulative releases of waste and not the individual events which
cause the releases. Further, boreholes drilled after closure of the
repository shall be assumed to affect the properties of the disposal
system for the remainder of the 10,000-year regulatory time frame. When
analyzing the effects of all later boreholes, performance assessments
must account for the effect that these existing boreholes will have had
on the hydrogeologic properties of the disposal system and on the
creation of new pathways for releases. In today's final rule, the
Agency requires that performance assessments and compliance assessments
must include--among other processes and events--the effects on the
disposal system of drilling and all types of resource extraction
activities, including inter alia solution mining and fluid injection,
that will have occurred prior to the time at which the compliance
application is prepared or that may be expected to occur soon afterward
based on existing plans and leases for drilling.
In the case of shallow drilling only, DOE may, if justified, derive
the drilling rate from the historical rates of shallow drilling for
only those resources in the Delaware Basin which are of similar quality
and type to those found in the controlled area. For example, if only
non-potable water can be found within the controlled area, then the
rate of drilling for water may be set equal to the historical rate of
drilling for non-potable water in the Delaware Basin over the past 100
years.
Section 194.33 requires performance assessments to make several
specific assumptions about future deep drilling and shallow drilling.
These assumptions include that drilling will occur randomly in space
and time and may occur at different rates for each resource, and that
drilling practices will remain as those of today and may vary depending
on the resource. Performance assessments should assume that the
permeability of sealed boreholes will be affected by natural processes,
and should assume that the fraction of boreholes that will be sealed by
man equals the fraction of boreholes which are currently sealed in the
Delaware Basin.
The Agency recognizes that drill operators currently employ
different techniques in the exploration and development of each
resource. Hence, performance assessments shall conduct a separate
analysis of the effects that future drilling for each different
resource--the act creating a borehole--will have on the disposal
system. Each separate analysis should set the future rate of drilling
for the particular resource equal to the historical rate at which that
resource has been drilled for in the Delaware Basin during the past 100
years. The analyses of the consequences of each type of drilling might
remain conceptually similar, but vary with regard to assumptions made
on size and depth of boreholes, quantity of drilling fluid used, or any
other characteristic specific to that type of resource. Analyses of the
consequences of future drilling events may be confined only to the
drilling activity and the subsequent effect of the borehole's presence
and need not include an analysis of extraction and recovery activities
which would occur subsequently.
In determining the drilling rate or the amount of waste released
from such drilling, performance assessments should not assume that
drill operators would detect the waste and then cease the current
drilling operations or otherwise mitigate the consequences of their
actions. Similarly, drill operators should not be assumed to cease
further exploration and development of resources as a result of the
driller's detecting the waste.
Section 194.34 requires that the results of performance assessments
be expressed as complementary, cumulative distributions functions
(CCDFs). The CCDFs shall be generated using random sampling techniques
which draw upon the full range of values established for each uncertain
parameter, which may include physical and chemical waste
characteristics. Parameters of lesser sensitivity in performance
assessments may be held constant, provided that such constant values
can be justified as sufficiently conservative. The quantitative
requirements of this section state that there must be a 0.95
probability that, at values of cumulative release of 1 and 10, the
maximum CCDF generated exceeds the 99th percentile of the population of
CCDFs. The values of cumulative release are calculated according to
Note 6 of Table 1, Appendix A of 40 CFR part 191. Additionally, the
mean of the population of CCDFs must meet the requirements of section
13 of 40 CFR part 191 with at least a 95 percent level of statistical
confidence. In demonstrating compliance with these standards, the
infinite number of CCDFs denoted by the term, population of CCDFs, need
not be generated. By generating only a finite number of CCDFs and
applying statistical theory, the relationships between the finite group
of computer-generated CCDFs, the population of CCDFs and the numerical
requirements of this section can be established.
Subpart C of today's action also implements the six assurance
requirements of section 14 of 40 CFR part 191. The assurance
requirements were included in the disposal regulations to provide the
confidence needed for long-term compliance with
[[Page 5231]]
the containment requirements of section 13 of 40 CFR part 191.
Section 194.41 of today's final rule requires a description of the
active institutional controls that will be implemented at the WIPP.
This description shall be sufficient to support any assumptions made on
their effectiveness in performance assessments and compliance
assessments. However, in no case shall active institutional controls be
assumed to be in effect for more than 100 years after the time of
disposal.
Section 194.42 of the final rule, monitoring, has been revised from
the proposed rule. The rationale for these changes is provided below,
in ``Principal changes in the final rule.'' Any unpredicted detection
of movement of radionuclides toward the accessible environment would be
cause for concern that a release of waste in excess of what is
permitted under the disposal regulations is likely to occur. This
section specifies requirements for monitoring in both the pre-closure
and post-closure periods, as necessary to verify that the WIPP complies
with the disposal regulations. In the event that an initial
certification has been granted, the results of monitoring during the
pre-closure period will be used by the Agency to verify that the
information contained in the initial compliance application has
remained true and accurate; this information would be used by the
Agency during both the initial five-year period after the start of
emplacement of waste and during the reviews made for the periodic re-
certifications of compliance. The final rule has included a provision
which requires DOE to conduct an analysis of parameters that will be
used in the development of pre-closure and post-closure monitoring
plans. The analysis should consider the importance of the parameter
with respect to both the containment of waste in the disposal system
and the practicability of performing such monitoring, including its
technical feasibility and the cost.
Section 194.43 implements the assurance requirements on passive
institutional controls (PICs). The final rule specifies that DOE must
include a detailed description of the PICs that will be employed and
lists the information that the PICs are required, at a minimum, to
convey. Additionally, the final rule allows the Department to reduce
the likelihood of future human intrusion that is used in performance
assessments by a proposed amount corresponding to the predicted effect
of PICs. See generally 47 FR 58196, 58201 (Dec. 29, 1982); 50 FR 38066,
38080 (Sept. 19, 1985). Thus, DOE may propose in its compliance
application to reduce the rate of human intrusion by a fractional
amount, extending over a technically supportable period of time, and
must justify this using the plans for the implementation for PICs and
associated evidence of their effectiveness. This credit may take the
form of a constant reduction in the rate of human intrusion lasting
several hundred years or may be a reduction in the rate which tapers
off in size over several hundred years. Such credit cannot be assumed
to eliminate completely the possibility of human intrusion, even for a
short period of time after the active institutional controls at the
WIPP are assumed to be ineffective. During the rulemaking on
certification, the Agency could determine that the description of the
PICs does not adequately justify the degree of proposed credit assumed
by DOE and therefore disallow some or all of the credit proposed by DOE
in the compliance application.
Having considered the public comments regarding PICs, the Agency
believes that such credit could be no more than approximately 700 years
past the time of disposal. Thus, the final rule limits to several
hundred years the amount of credit that EPA may grant for PICs. Any
determination that a specific numerical credit would be appropriate for
a much longer period of time would be unduly speculative and therefore
inappropriate.
Today's action should not be construed to approve or award any
amount of credit for PICs, as such a determination cannot be made in
advance of the rulemaking on certification of compliance. The Agency is
deferring any decisions on credit for PICs planned for the WIPP until
such time as the compliance application has been received and a
rulemaking for certification has been completed. This restates the
Agency's prior assertion, made in the promulgation of the final
disposal regulations in 1985:
Specific judgments about the chances and consequences of
intrusion should be made by the implementing agencies (EPA for the
WIPP) when more information about particular disposal sites and
passive control systems is available. See 50 FR 38080.
In developing this section of the final rule, 40 CFR 194.43, the
Agency considered the treatment of PICs in the disposal regulations,
the input received in public forums and the public comments received on
the proposed rule. The disposal regulations established the foundation
of today's action on the role of passive institutional controls.
Section 191.14(c) of the disposal regulations require that disposal
sites be designated by the most permanent markers, records, and other
passive institutional controls practicable to indicate the dangers of
the wastes and their location. In adopting these provisions of the
disposal regulations, the Agency expressly assumed that passive
institutional controls ``should reduce the chance of inadvertent
intrusion compared to the likelihood if no markers and records were in
place.'' See 50 FR 38080. With respect to performance assessments, the
Agency examined whether PICs should be taken into account to some
degree when estimating the likelihood of inadvertent human intrusion
and concluded that ``a limited role for passive institutional controls
would be appropriate when projecting the long-term performance of mined
geologic repositories to judge compliance with (the containment
requirements of 40 CFR part 191).'' At the same time, the Agency
explicitly determined that PICs should not be assumed to completely
prevent the possibility of inadvertent human intrusion. See 50 FR
38080.
In the proposed rule, 40 CFR part 194, the Agency specifically
requested comment on the requirements on PICs. The Agency conducted a
public discussion of PICs in a technical workshop in Washington, DC, in
February, 1995. In September, 1995, EPA consulted the WIPP Review
Committee of the National Advisory Council for Environmental Policy and
Technology (NACEPT) on three issues, including PICs, in a public
meeting in New Mexico. See 60 FR 43470-43471 (Aug. 21, 1995). The
Committee agreed that PICs would be likely to decrease the likelihood
of inadvertent intrusion into the WIPP but expressed concern about the
availability of a rigorous method by which to determine the appropriate
reduction due to PICs in the future likelihood of inadvertent
intrusion. Some members of the Committee stated that, if credit were to
be approved, the size of the credit should not reflect that PICs would
be effective for more than a small fraction of the 10,000 year
regulatory time frame.
Many public comments received on the proposed rule expressed
skepticism about whether PICs would be effective for the entire 10,000
year regulatory time frame or for even a fraction thereof. Other
comments stated the belief that civilizations living 1,000 to 10,000
years from now would, in fact, be capable of understanding the records
and markers that were left behind at the WIPP. Still other comments
asserted that, in allowing for the possibility of credit, the Agency
had revised the intent of the
[[Page 5232]]
assurance requirements, one of which being the requirement for the
implementation of PICs. Specifically, comments stated that the
assurance requirements were not intended to be considered when
determining compliance with the numerical containment requirements
found at 40 CFR 191.13.
The provisions of the final rule entertaining possible credit for
PICs are within EPA's authority. In adopting the assurance requirements
in 40 CFR part 191, EPA expressly limited the credit for active
institutional controls. EPA prohibited performance assessments from
considering any contributions from active institutional controls for
more than 100 years after disposal. See 40 CFR 191.14(a). EPA declined
to similarly limit the effect of PICs in reducing the likelihood of
human intrusion. 50 FR 38080. By contrast, EPA contemplated that PICs
may discourage the likelihood of human intrusion for some period of
time longer than active institutional controls. However, EPA indicated
that it generally believed it was inappropriate to rely on PICs for
extended periods of time. See 50 FR 38080. Based on the public comments
and consistent with EPA's general view that it is inappropriate to rely
on PICs for very long periods of time, EPA is constraining in the final
rule the length of time that EPA could consider granting credit for
PICs to several hundred years. EPA's decision about the actual efficacy
of PICs proposed for the WIPP will be based on DOE's compliance
application but may not exceed this limit.
Further, the degree to which PICs might reduce the future drilling
rate can be reliably determined only through informed judgment. The
Agency agrees with the NACEPT Committee that no rigorous and non-
speculative method is available to determine the appropriate amount of
credit for PICs. Thus, DOE's proposed reduction in the likelihood of
human intrusion due to PICs would probably be conducted through an
expert judgment process that considers the specific PICs to be
implemented at the WIPP by DOE. The expert judgment performed
specifically to determine the effect of PICs must satisfy the
requirements of section 26 of today's action, on expert judgment. For
example, this section requires that the range of professions
represented on the expert panel must cover the complete spectrum of
knowledge that will be necessary to address the question given to the
experts. In the case of PICs, the Agency would expect that experts
would be selected not only from professions such as archeology, but
from professions which are concerned with the exploration and
development of natural resources such as oil and natural gas.
Section 194.44 of the final rule implements the assurance
requirement on engineered barriers. This section requires that DOE
conduct a study of available options for engineered barriers at the
WIPP and submit this study and evidence of its use with the compliance
application. Consistent with the requirement, found at 40 CFR 191.13,
that DOE analyze the performance of the complete disposal system, any
engineered barriers that are ultimately implemented at the WIPP must be
considered by the Department and, ultimately, EPA when evaluating
compliance with both the containment requirements of 40 CFR 191.13 and
the assurance requirement of 40 CFR 191.14(d).
Section 194.45 implements the assurance requirement that the
disposal system be sited such that the benefits of the natural barriers
of the disposal system compensate for the increased probability of
disruptions of the disposal system resulting from exploration and
development of nearby natural resources. This assurance requirement
will be met if performance assessments comply with the numerical
containment requirements of section 13 of 40 CFR part 191, provided
that the potential effects of human intrusion at the WIPP will have
been appropriately considered.
Section 194.46 implements the assurance requirement that the
removal of waste remain possible for a reasonable period of time after
disposal. The final rule has eliminated the requirement for the
development of a plan for the removal of waste which had been contained
in the proposed rule. In place of the requirement for a removal plan,
EPA is including in the final rule a requirement that DOE perform an
evaluation to demonstrate that the removal of waste will remain
feasible for a reasonable period of time after disposal.
Sections 194.51 through 194.55 provide the criteria that must be
met in order to demonstrate that the WIPP will comply with the ground-
water requirements of subpart C of 40 CFR part 191 and the individual
protection requirements of section 15 of 40 CFR part 191. Section
194.51 and 194.52 specify the assumptions that must be incorporated
into compliance assessments in the analyses of annual committed
effective dose equivalent received by individuals, used in determining
compliance with the individual protection requirements. Compliance
assessments should separately analyze the doses received by individuals
from each pathway. Compliance assessments should assume that the
protected individual resides at the single geographic point where the
maximum dose would be received, calculated by the sum of all pathways.
Section 194.53 lists the assumptions that compliance assessments
must include when analyzing the doses received through underground
sources of drinking water (USDWs), used in determining compliance with
subpart C of 40 CFR part 191. Doses can be received from any USDW
outside of the controlled area, provided that a connective pathway
could be expected to be established via ground-water travel between the
disposal system and that USDW. The Agency expects that USDWs which lie
closer to the disposal system will have a greater chance of being
affected by releases of waste. The Agency therefore does not intend for
DOE to expend resources analyzing doses received from USDWs located
large distances from the disposal system. The calculations of doses
received from USDWs should assume that drinking water is withdrawn
directly from the contaminated USDW and consumed at a rate of two
liters per day.
Section 194.54 defines the scope of compliance assessments.
Compliance assessments should be conducted of the undisturbed
performance of the disposal system, which, by the definition in section
12 of 40 CFR part 191, denotes that the disposal system is not
disrupted by human intrusion or the occurrence of unlikely natural
events. Section 194.55 requires that compliance assessments include
calculations or ``estimates'' of three quantities: (1) The annual
committed effective dose received from all pathways, an analysis which
corresponds to the requirements of section 15 of 40 CFR part 191; (2)
dose equivalents received from USDWs; and (3) concentrations of
radionuclides present in USDWs, the latter two of which correspond to
subpart C of 40 CFR part 191. To generate a ``range'' of estimates,
compliance assessments must make repeated calculations, with each
iteration employing a different set of randomly selected values for
each uncertain parameter. Parameters of lesser sensitivity in
compliance assessments may be held constant, provided that these values
can be justified as being sufficiently conservative. The final rule
requires that there be a 0.95 probability that the maximum estimate of
each set so generated exceeds the 99th percentile of
[[Page 5233]]
the population of estimates. The mean and the median of the population
of each set of estimates must meet the requirements of section 15 and
subpart C of 40 CFR part 191, as applicable, with at least a 95 percent
level of statistical confidence.
Subpart D: Public Participation
Subpart D of today's action establishes procedures that EPA will
use to involve the public in the decisions on certification and re-
certification and requires EPA to publish notices of its actions in the
Federal Register. Subpart D includes new provisions which require the
Agency to involve the public in decisions to modify or revoke a
certification. Section 194.65 requires that EPA publish a notice in the
Federal Register announcing the Agency's proposed decision on the
modification or revocation of the certification. The notice of proposed
rulemaking must solicit comment on the proposed decision. Section
194.66 requires the Administrator to publish a notice of final
rulemaking in the Federal Register, announcing whether the Agency has
revoked, modified or taken no action to change the certification.
Section 194.67 requires that EPA maintain a public docket with all
information used in making the decisions on certification, re-
certification, and modification and revocation of the certification.
Principal Changes in the Final Rule
In addition to the principal changes described below, today's
action contains other minor modifications to the proposed rule. Further
discussion of the rationale and information supporting significant
changes found in today's action is contained in the Background
Information Document and the Response to Comments, which may obtained
as explained in the start of this notice.
Scope of Performance Assessments and Consideration of Drilling Events
In Secs. 194.32 and 194.33 of the final rule, the Agency has
provided further clarification on which activities fall within the
scope of human intrusion. (Section 194.33 had been titled
``Consideration of human initiated processes and events'' in the
proposed rule.) The final rule requires that the effects of deep
drilling, shallow drilling and excavation mining must be included in
performance assessments. In the proposed rule, the Agency had excluded
excavation mining from consideration (60 FR 5774; January 30, 1995).
The Agency received several public comments recommending that
performance assessments should be required to include the effects of
future mining during the regulatory time frame in order to account for
the presence of potash in the vicinity of the repository. The Agency
has re-evaluated the proposed exclusion of mining, in light of these
public comments. The Agency believes that, while there is uncertainty
surrounding the potential effects of mining, mining could nonetheless
alter the hydrogeologic properties of certain formations that lie at
shallower depths than the mined portion of the repository. Thus, the
final rule requires performance assessments to consider the possible
effects of excavation mining on the disposal system. As discussed
previously, DOE may address this requirement by considering the changes
that mining would induce in the hydraulic conductivity of the disposal
system. Additionally, the requirements of the final rule specify the
method for determining the size and shape, location and point in time
at which mining occurs. The Agency specified these items to provide
clarification on how mining should be considered and to avoid unbounded
speculation that would result from the high uncertainty regarding
whether, where and how mining would occur in the Land Withdrawal area.
EPA's decision was based on a desire to include mining in performance
assessment in a realistic fashion without recourse to such
unconstrained speculation. To this end, the final rule has specified
that mining will continue at the same rate as it has over the past 100
years, that the area to be mined is the area that contains mineral
deposits of similar type and quality to those that are currently
extracted in the Delaware Basin, and that only the major impacts on the
disposal system of mining need be considered. EPA believes this is
consistent with the future states assumptions of section 25 as they
apply to the future activities of man.
The Agency has added definitions of deep drilling and shallow
drilling in Sec. 194.2. Both types of drilling shall include
exploratory and developmental wells. The addition of these definitions
was prompted by commenters who noted that the definitions of human
intrusion and ``human activity'' that were in the proposed rule had
caused confusion by distinguishing their meanings on the basis of the
depth at which drilling occurs. In the final rule, the Agency has
removed these definitions from the final rule and instead makes use of
the defined terms, deep drilling and shallow drilling in order to
provide greater clarity.
Commenters also requested that the final rule require analysis of
disposal of brine that accumulates during the extraction of oil and of
secondary recovery of oil performed using water-flood injection. The
Agency considered this comment in the larger context of the nature of
potential human intrusions during the next 10,000 years and what
assumptions might hold true during that time. The Agency believes that
no one resource will last for the entire 10,000 years and therefore has
concluded that the techniques for extraction of any one resource--such
as water-flood injection for oil recovery--are unlikely to be in use
during much of the 10,000-year regulatory time frame. With respect to
drilling rates, the Agency reasoned that while the resources drilled
for today may not be the same as those drilled for in the future, the
present rates at which these boreholes are drilled can nonetheless
provide an estimate of the future
FR Doc. 96-2721 Criteria for the Certification and Re-Certification of the Waste Isolation Pilot Plant's Compliance With the 40 CFR Part 191 Disposal Regulations
rate at which boreholes will be
drilled. The Agency does expect that drilling will never completely
cease; while some resources may become depleted over time and, while
the rate of extraction of those resources may decrease, the increased
rate of drilling for newly discovered resources will compensate for
this decline. In effect, when used for the purpose of determining the
future drilling rate, today's drilling activities act as surrogates for
the unknown resources that will be drilled for in the future. With
respect to the consequence and releases due to future drilling,
present-day drilling activities provide the only available basis for
making assumptions in performance assessments. Future extraction of any
resource will likely necessitate drilling a hole for its recovery.
However, because there is doubt as to whether the resources associated
with today's specialized extraction techniques and fluid injection will
remain available for 10,000 years, the final rule does not require that
performance assessments assume that such extraction activities will
occur during the entire regulatory time frame, but does require that
the effects of the drilling events themselves be analyzed. The
techniques include, for example, water-flood injection for secondary
recovery of oil, solution mining and the disposal by injection of brine
accumulated during recovery of oil.
The Agency recognizes, however, that resource extraction and fluid
injection activities which are currently performed in the Delaware
Basin can alter the hydrogeologic properties of the initial state of
the disposal system. The final
[[Page 5234]]
rule requires that performance assessments and compliance assessments
analyze the effects of all types of fluid-injection and all boreholes
which can have an effect on the disposal system and which have been or
will have been drilled prior to or soon after disposal. These boreholes
shall be assumed to affect the properties of the disposal system for
the entire 10,000-year regulatory time frame. Predictions about such
future activities shall be strictly limited to the expected use of
existing leases.
Today's final rule eliminates the proposed cap on the rate of deep
drilling into the disposal system of 62.5 boreholes per square
kilometer per 10,000 years as well as the proposed lower limit of 25
boreholes per square kilometer per 10,000 years. The Agency received
numerous public comments objecting to the use of upper and lower limits
on the rate of deep drilling. The Agency has concluded that the rate of
drilling into the disposal system used in performance assessments
covering the 10,000-year regulatory time frame should be derived solely
from the historical record of drilling in the region surrounding the
WIPP. In the proposed rule, the Agency had specified that the past 50
years of records on drilling shall be used to establish the rates for
shallow drilling and deep drilling, the latter being subject to upper
and lower caps. While developing the final rule, the Agency recognized
that drilling activity has been at a maximum during the past 50 years,
whereas during the past 100 years, a broader spectrum of high and low
drilling rates can be found. In the long-term future, it can be
expected that the drilling rate will consist of periods of high and low
drilling activity, which makes the past 100 years a more appropriate
period for calculating the drilling rate. In addition, more detailed
examination of the available records in Texas and New Mexico since the
time of the proposed rule has shown that accurate data on drilling
activity dates back 100 years, rather than 50 years as was believed
initially. The final rule therefore specifies that the rates of both
shallow drilling and deep drilling are to be set based on data from the
100 year period ending at the time DOE prepares the compliance
application.
Today's final rule includes a definition of the term ``Delaware
Basin,'' used in the regulation to be that area over which the past
drilling rate is to be averaged in order to establish the rate of
drilling used in performance assessments. In the proposed rule, the
Agency had solicited comment on how to define the Delaware Basin. Many
comments were received, with the bulk of the discussion focusing on
whether the Capitan Reef should be included in the definition. In
arriving at the definition in the final rule, the Agency considered the
geologic and hydrogeologic characteristics of the formations which
contain the WIPP versus those of the Capitan Reef. The Capitan Reef is
more permeable to the flow of water and was formed from organic
material which differs from the salt formations which immediately
surround the WIPP. The Agency had stated its intention to define the
Delaware Basin to be the largest contiguous area that has similar
geologic properties. Because of the differences, noted above, between
the Capitan Reef and the interior formations, the Agency has chosen to
define the Delaware Basin to be those surface and subsurface formations
which lie inside the inner-most edge of the Capitan Reef. Where the
Capitan Reef is absent to the south, the Delaware Basin includes those
features which lie to the north of a straight line connecting the
southeastern point of the Davis Mountains and the southwestern point of
the Glass Mountains.
Waste Characterization
Numerous public comments were received on the proposed Sec. 194.24,
waste characterization. Commenters stated that this section required
greater clarity in order to be implemented effectively at the WIPP. The
final rule retains the use of ``waste characteristics'' to provide a
description of the waste. The term, waste categories, has been
eliminated in the final rule. The final rule uses the term, ``waste
components,'' to denote an amount of a type of waste--expressed as a
volume, mass or weight (or curies, in the case of activity)--such as
chelating agents and cellulosics. The waste categories in the proposed
rule were to be established based on the assumption that wastes with
similar waste characteristics would behave similarly in the disposal
system. The Agency believes that using instead the term ``waste
components'' provides a less abstract scheme for classifying waste
which could be more easily implemented. In particular, the Agency
believes that, for a given container of waste, DOE could more readily
identify how much of each waste component is present rather than how
much of each waste category is present. The final rule requires that
these limits be established such that the results of performance
assessments and compliance assessments will comply with the numerical
requirements of 40 CFR Part 191 when the maximum or minimum values for
each waste component are used, as appropriate.
To assist in establishing the waste characteristics and waste
components and quantitative values of each, the final rule requires
that compliance applications include an analysis to identify and assess
the impact on long-term performance of those waste characteristics
which influence the containment of waste in the disposal system. An
analysis must also be conducted of waste components to determine which
of these will influence the waste characteristics identified as having
an influence on containment. This section of the final rule specifies
those waste characteristics and waste components which, at a minimum,
the respective analyses must investigate.
Peer Review
Section 194.26, peer review, has been narrowed in scope in the
final rule. The Agency received many public comments stating that the
requirements on peer review were stated too broadly such that an
inordinate and unmanageable number of peer reviews would be required.
Additionally, commenters noted that many of the activities that the
proposed rule had required to be peer reviewed were subject to specific
quality assurance requirements under Sec. 194.22. Public comments noted
that, in this instance, the proposed peer review requirements would be
redundant with the quality assurance requirements. Such activities
would include the computer codes and the data used to support all
models--conceptual, mathematical and numerical--and computer codes.
The Agency consulted the WIPP Review Committee of NACEPT at the
September, 1995 meeting and sought its advice on how to address peer
review. The Committee suggested that peer review of quality assurance
programs would be unnecessary, since, by requiring DOE to adhere to a
program that meets the requirements of three sets of ASME's standards,
today's action would already be sufficient to control the quality
assurance process. The Agency agrees with both the Committee and with
similar public comment and has eliminated the requirement for peer
review of quality assurance programs and plans. The Committee also
stated that peer review could be used both to insure that analyses use
the correct model of repository behavior and to evaluate the subjective
uncertainty in whether the appropriate conceptual model was selected.
In the case of WIPP, unanimous agreement does not exist on the nature
of the conceptual models of natural processes such as dissolution
[[Page 5235]]
which can have an effect on the disposal system. To subject these
issues to wider scrutiny, the final rule specifies that peer review
must be conducted of the conceptual models selected and developed by
DOE.
Application of Release Limits
Section 194.31 of the final rule specifies that the release limits
of Appendix A of 40 CFR part 191 shall be determined based on the total
activity, in curies, of transuranic waste present at the time of
disposal. Public comment was divided between those who recommended
setting release limits at 100 years, as in the proposed rule, and those
who recommended the time of disposal. The Agency solicited the views of
the WIPP Review Committee of NACEPT on the subject of release limits in
the meeting held in September, 1995. Some committee members noted that
radionuclides such as plutonium 238 would quickly decay to less than
half their original number in under 100 years and thus would not pose a
threat for more than a small fraction of the 10,000-year regulatory
time frame. Hence, some members of the committee recommended the option
of setting the release limits at later times so that the release limits
would be based on longer-lived radionuclides. Doing so would more
accurately reflect the long-term hazards presented by the waste.
Some committee members also recommended that the Agency should base
its decision on the original intent of the disposal regulations. The
Agency believes that the disposal regulations were designed to avoid
the undue influence of short-lived radionuclides on the size of the
release limits. The disposal regulations accomplished this purpose in
Appendix A by eliminating the contribution of radionuclides having
half-lives of less than twenty years. The Agency has therefore chosen
in the final rule to determine release limits based on the total
activity, in curies, of transuranic waste present at the time of
disposal.
Monitoring
The monitoring requirements have been modified to provide clearer
direction for the development of a post-closure monitoring plan.
Several commenters suggested that, by requiring that post-closure
monitoring be conducted in a manner ``compatible'' with RCRA, DOE might
be forced to implement two over-lapping monitoring programs in order to
comply with both RCRA hazardous waste regulations and 40 CFR part 194.
Other commenters noted that, in the event that RCRA monitoring at the
WIPP were to be modified or eliminated, the requirement in 40 CFR Part
194 as proposed would be correspondingly reduced. To provide clearer
direction on the performance of post-closure monitoring, the Agency has
made two changes in the final rule. First, to eliminate potential
overlap, the Agency is requiring that post-closure monitoring be
required to be ``complementary'' with RCRA, so that information yielded
by the one monitoring program would not be duplicated by the other. The
Agency is requiring in the final rule that post-closure monitoring be
conducted, to the extent practicable when considering technical
feasibility and cost, of those parameters which are important to the
containment of waste in the disposal system. Such parameters shall be
identified in a required analysis that will assess which parameters are
important to the containment of waste and which therefore should be
included in post-closure (and pre-closure) monitoring.
Rulemaking Analyses
Executive Order 12866
Under Executive Order 12866, (58 FR 51,735 October 4, 1993), the
Agency must determine whether the regulatory action is ``significant''
and therefore subject to OMB review and the requirements of the
Executive Order. The Order defines ``significant regulatory action'' as
one that is likely to result in a rule that may:
(1) Have an annual effect on the economy of $100 million or more or
adversely affect in a material way the economy, a sector of the
economy, productivity, competition, jobs, the environment, public
health or safety, or State, local, or tribal governments or
communities;
(2) Create a serious inconsistency or otherwise interfere with an
action taken or planned by another agency;
(3) Materially alter the budgetary impact of entitlements, grants,
user fees, or loan programs or the rights and obligations of recipients
thereof; or
(4) Raise novel legal or policy issues arising out of legal
mandates, the President's priorities, or the principles set forth in
the Executive Order.
Pursuant to the terms of Executive Order 12866, it has been
determined that this rule is a ``significant regulatory action''
because it raises novel policy issues which arise from legal mandates.
As such, this action was submitted to OMB for review. Changes made in
response to OMB suggestions or recommendations will be documented in
the public record.
Regulatory Flexibility Act
Pursuant to section 605(b) of the Regulatory Flexibility Act, 5
U.S.C. 605(b), the Administrator certifies that this rule will not have
a significant economic impact on a substantial number of small
entities. Today's final rule sets forth requirements which apply only
to Federal agencies and the Administrator therefore certifies that no
small entities will be affected.
Paperwork Reduction Act
The EPA has determined that this proposed rule contains no
information collection requirements as defined by the Paperwork
Reduction Act (44 U.S.C. 3501 et seq).
Unfunded Mandates Reform Act
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Pub.
L. 104-4, establishes requirements for Federal agencies to assess the
effects of their regulatory actions on State, local and tribal
governments and the private sector. Today's rule contains no Federal
mandates (under the regulatory provisions of Title II of the UMRA) for
State, local or tribal governments or the private sector. The rule
implements requirements specifically set forth by the Congress in the
Waste Isolation Pilot Plant Land Withdrawal Act (Pub. L. 102-579).
List of Subjects in 40 CFR Part 194
Administrative practice and procedure, Environmental protection,
Incorporation by reference Nuclear materials, Radionuclides, Plutonium,
Radiation protection, Uranium, Transuranics, Waste treatment and
disposal.
Dated: February 1, 1996.
Carol M. Browner,
Administrator.
For the reasons set out in the preamble, 40 CFR part 194 is added
as set forth below.
PART 194--CRITERIA FOR THE CERTIFICATION AND RE-CERTIFICATION OF
THE WASTE ISOLATION PILOT PLANT'S COMPLIANCE WITH THE 40 CFR PART
191 DISPOSAL REGULATIONS
Subpart A--General Provisions
Sec.
194.1 Purpose, scope, and applicability.
194.2 Definitions.
194.3 Communications.
194.4 Conditions of compliance certification.
194.5 Publications incorporated by reference.
[[Page 5236]]
194.6 Alternative provisions.
194.7 Effective date.
Subpart B--Compliance Certification and Re-certification Applications
194.11 Completeness and accuracy of compliance applications.
194.12 Submission of compliance applications.
194.13 Submission of reference materials.
194.14 Content of compliance certification application.
194.15 Content of compliance re-certification application(s).
Subpart C--Compliance Certification and Re-certification General
Requirements
General Requirements
194.21 Inspections.
194.22 Quality assurance.
194.23 Models and computer codes.
194.24 Waste characterization.
194.25 Future state assumptions.
194.26 Expert judgment.
194.27 Peer review.
Containment Requirements
194.31 Application of release limits.
194.32 Scope of performance assessments.
194.33 Consideration of drilling events in performance assessments.
194.34 Results of performance assessments.
Assurance Requirements
194.41 Active institutional controls.
194.42 Monitoring.
194.43 Passive institutional controls.
194.44 Engineered barriers.
194.45 Consideration of the presence of resources.
194.46 Removal of waste.
Individual and Ground-water Protection Requirements
194.51 Consideration of protected individual.
194.52 Consideration of exposure pathways.
194.53 Consideration of underground sources of drinking water.
194.54 Scope of compliance assessments.
194.55 Results of compliance assessments.
Subpart D--Public Participation
194.61 Advance notice of proposed rulemaking for certification.
194.62 Notice of proposed rulemaking for certification.
194.63 Final rule for certification.
194.64 Documentation of continued compliance.
194.65 Notice of proposed rulemaking for modification or
revocation.
194.66 Final rule for modification or revocation.
194.67 Dockets.
Authority: The Waste Isolation Pilot Plant Land Withdrawal Act
of 1992, Pub.L. 102-579, 106 Stat. 4777; Atomic Energy Act of 1954,
as amended, 42 U.S.C. 2011-2296; Reorganization Plan No. 3 of 1970,
5 U.S.C. app.1; Nuclear Waste Policy Act of 1982, as amended, 42
U.S.C. 10101-10270.
Subpart A--General Provisions
Sec. 194.1 Purpose, scope and applicability.
This part specifies criteria for the certification or any re-
certification, or subsequent actions relating to the terms or
conditions of certification of the Department of Energy's Waste
Isolation Pilot Plant's compliance with the disposal regulations found
at part 191 of this chapter and pursuant to section 8(d)(1) and section
8(f), respectively, of the WIPP LWA. The compliance certification
application submitted pursuant to section 8(d)(1) of the WIPP LWA and
any compliance re-certification application submitted pursuant to
section 8(f) of the WIPP LWA shall comply with the requirements of this
part.
Sec. 194.2 Definitions.
Unless otherwise indicated in this part, all terms have the same
meaning as in part 191 of this chapter.
Certification means any action taken by the Administrator pursuant
to section 8(d)(1) of the WIPP LWA.
Compliance application(s) means the compliance certification
application submitted to the Administrator pursuant to section 8(d)(1)
of the WIPP LWA or any compliance re-certification applications
submitted to the Administrator pursuant to section 8(f) of the WIPP
LWA.
Compliance assessment(s) means the analysis conducted to determine
compliance with Sec. 191.15, and part 191, subpart C of this chapter.
Delaware Basin means those surface and subsurface features which
lie inside the boundary formed to the north, east and west of the
disposal system by the innermost edge of the Capitan Reef, and formed,
to the south, by a straight line drawn from the southeastern point of
the Davis Mountains to the most southwestern point of the Glass
Mountains.
Deep drilling means those drilling events in the Delaware Basin
that reach or exceed a depth of 2,150 feet below the surface relative
to where such drilling occurred.
Department means the United States Department of Energy.
Disposal regulations means part 191, subparts B and C of this
chapter.
Management systems review means the qualitative assessment of a
data collection operation or organization(s) to establish whether the
prevailing quality management structure, policies, practices, and
procedures are adequate to ensure that the type and quality of data
needed are obtained.
Modification means action(s) taken by the Administrator that alters
the terms or conditions of certification pursuant to section 8(d)(1) of
the WIPP LWA. Modification of any certification shall comply with this
part and part 191 of this chapter.
Population of CCDFs means all possible complementary, cumulative
distribution functions (CCDFs) that can be generated from all disposal
system parameter values used in performance assessments.
Population of estimates means all possible estimates of radiation
doses and radionuclide concentrations that can be generated from all
disposal system parameter values used in compliance assessments.
Quality assurance means those planned and systematic actions
necessary to provide adequate confidence that the disposal system will
comply with the disposal regulations set forth in part 191 of this
chapter. Quality assurance includes quality control, which comprises
those actions related to the physical characteristics of a material,
structure, component, or system that provide a means to control the
quality of the material, structure, component, or system to
predetermined requirements.
Re-certification means any action taken by the Administrator
pursuant to section 8(f) of the WIPP LWA.
Regulatory time frame means the time period beginning at disposal
and ending 10,000 years after disposal.
Revocation means any action taken by the Administrator to terminate
the certification pursuant to section 8(d)(1) of the WIPP LWA.
Secretary means the Secretary of Energy.
Shallow drilling means those drilling events in the Delaware Basin
that do not reach a depth of 2,150 feet below the surface relative to
where such drilling occurred.
Suspension means any action taken by the Administrator to withdraw,
for a limited period of time, the certification pursuant to section
8(d)(1) of the WIPP LWA.
Waste means the radioactive waste, radioactive material and
coincidental material subject to the requirements of part 191 of this
chapter.
Waste characteristic means a property of the waste that has an
impact on the containment of waste in the disposal system.
Waste component means an ingredient of the total inventory of the
waste that influences a waste characteristic.
WIPP means the Waste Isolation Pilot Plant, as authorized pursuant
to section 213 of the Department of Energy National Security and
Military
[[Page 5237]]
Applications of Nuclear Energy Authorization Act of 1980 (Pub.L. 96-
164; 93 Stat. 1259, 1265).
WIPP LWA means the Waste Isolation Pilot Plant Land Withdrawal Act
of 1992 (Pub.L. 102-579, 106 Stat. 4777).
Sec. 194.3 Communications.
(a) Compliance application(s) shall be:
(1) Addressed to the Administrator; and
(2) Signed by the Secretary.
(b) Communications and reports concerning the criteria in this part
shall be:
(1) Addressed to the Administrator or the Administrator's
authorized representative; and
(2) Signed by the Secretary or the Secretary's authorized
representative.
Sec. 194.4 Conditions of compliance certification.
(a) Any certification of compliance issued pursuant to section
8(d)(1) of the WIPP LWA may include such conditions as the
Administrator finds necessary to support such certification.
(b) Whether stated therein or not, the following conditions shall
apply in any such certification:
(1) The certification shall be subject to modification, suspension
or revocation by the Administrator. Any suspension of the certification
shall be done at the discretion of the Administrator. Any modification
or revocation of the certification shall be done by rule pursuant to 5
U.S.C. 553. If the Administrator revokes the certification, the
Department shall retrieve, as soon as practicable and to the extent
practicable, any waste emplaced in the disposal system.
(2) Any time after the Administrator issues a certification, the
Administrator or the Administrator's authorized representative may
submit a written request to the Department for information to enable
the Administrator to determine whether the certification should be
modified, suspended or revoked. Unless otherwise specified by the
Administrator or the Administrator's authorized representative, the
Department shall submit such information to the Administrator or the
Administrator's authorized representative within 30 calendar days of
receipt of the request.
(3) Any time after the Administrator issues a certification, the
Department shall report any planned or unplanned changes in activities
or conditions pertaining to the disposal system that differ
significantly from the most recent compliance application.
(i) The Department shall inform the Administrator, in writing,
prior to making such a planned change in activity or disposal system
condition.
(ii) In the event of an unplanned change in activity or condition,
the Department shall immediately cease emplacement of waste in the
disposal system if the Department determines that one or more of the
following conditions is true:
(A) The containment requirements established pursuant to
Sec. 191.13 of this chapter have been or are expected to be exceeded;
(B) Releases from already-emplaced waste lead to committed
effective doses that are or are expected to be in excess of those
established pursuant to Sec. 191.15 of this chapter. For purposes of
this paragraph (b)(3)(ii)(B), emissions from operations covered
pursuant to part 191, subpart A of this chapter are not included; or
(C) Releases have caused or are expected to cause concentrations of
radionuclides or estimated doses due to radionuclides in underground
sources of drinking water in the accessible environment to exceed the
limits established pursuant to part 191, subpart C of this chapter.
(iii) If the Department determines that a condition described in
paragraph (b)(3)(ii) of this section has occurred or is expected to
occur, the Department shall notify the Administrator, in writing,
within 24 hours of the determination. Such notification shall, to the
extent practicable, include the following information:
(A) Identification of the location and environmental media of the
release or the expected release;
(B) Identification of the type and quantity of waste (in activity
in curies of each radionuclide) released or expected to be released;
(C) Time and date of the release or the estimated time of the
expected release;
(D) Assessment of the hazard posed by the release or the expected
release; and
(E) Additional information requested by the Administrator or the
Administrator's authorized representative.
(iv) The Department may resume emplacement of waste in the disposal
system upon written notification that the suspension has been lifted by
the Administrator.
(v) If the Department discovers a condition or activity that
differs significantly from what is indicated in the most recent
compliance application, but does not involve conditions or activities
listed in paragraph (b)(3)(ii) of this section, then the difference
shall be reported, in writing, to the Administrator within 10 calendar
days of its discovery.
(vi) Following receipt of notification, the Administrator will
notify the Secretary in writing whether any condition or activity
reported pursuant to paragraph (b)(3) this section:
(A) Does not comply with the terms of the certification; and, if it
does not comply,
(B) Whether the compliance certification must be modified,
suspended or revoked. The Administrator or the Administrator's
authorized representative may request additional information before
determining whether modification, suspension or revocation of the
compliance certification is required.
(4) Not later than six months after the Administrator issues a
certification, and at least annually thereafter, the Department shall
report to the Administrator, in writing, any changes in conditions or
activities pertaining to the disposal system that were not required to
be reported by paragraph (b)(3) of this section and that differ from
information contained in the most recent compliance application.
Sec. 194.5 Publications incorporated by reference.
(a) The following publications are incorporated into this part by
reference:
(1) U.S. Nuclear Regulatory Commission, NUREG-1297 ``Peer Review
for High-Level Nuclear Waste Repositories,'' published February 1988;
incorporation by reference (IBR) approved for Secs. 194.22, 194.23 and
194.27.
(2) American Society of Mechanical Engineers (ASME) Nuclear Quality
Assurance (NQA) Standard, NQA-1-1989 edition, ``Quality Assurance
Program Requirements for Nuclear Facilities;'' IBR approved for
Sec. 194.22.
(3) ASME NQA-2a-1990 addenda, part 2.7, to ASME NQA-2-1989 edition
``Quality Assurance Requirements for Nuclear Facility Applications;''
IBR approved for Sec. 194.22 and Sec. 194.23.
(4) ASME NQA-3-1989 edition, ``Quality Assurance Program
Requirements for the Collection of Scientific and Technical Information
for Site Characterization of High-Level Nuclear Waste Repositories''
(excluding section 2.1 (b) and (c)); IBR approved for Sec. 194.22.
(b) The publications listed in paragraph (a) of this section were
approved for incorporation by reference by the Director of the Federal
Register in accordance with 5 U.S.C. 552(a) and 1 CFR part 51. Copies
may be inspected or obtained from the Air Docket, Docket No. A-92-56,
room M1500 (LE131),
[[Page 5238]]
U.S. Environmental Protection Agency, 401 M Street, SW, Washington, DC
20460, or copies may be inspected at the Office of the Federal
Register, 800 N. Capitol Street NW, 7th floor, Suite 700, Washington,
DC, or copies may be obtained from the following addresses:
(1) For ASME standards, contact American Society of Mechanical
Engineers, 22 Law Drive, P.O. Box 2900, Fairfield, NJ 07007-2900, phone
1-800-843-2763.
(2) For Nuclear Regulatory Commission documents, contact Division
of Information Support Services, Distribution Service, U.S. Nuclear
Regulatory Commission, Washington, DC 20555, or contact National
Technical Information Service, 5285 Port Royal Road, Springfield, VA
22161, phone 703-487-4650.
Sec. 194.6 Alternative provisions.
The Administrator may, by rule pursuant to 5 U.S.C. 553, substitute
for any of the provisions of this part alternative provisions chosen
after:
(a) The alternative provisions have been proposed for public
comment in the Federal Register together with information describing
how the alternative provisions comport with the disposal regulations,
the reasons why the existing provisions of this part appear
inappropriate, and the costs, risks and benefits of compliance in
accordance with the alternative provisions;
(b) A public comment period of at least 120 days has been completed
and public hearings have been held in New Mexico;
(c) The public comments received have been fully considered; and
(d) A notice of final rulemaking is published in the Federal
Register.
Sec. 194.7 Effective date.
The criteria in this part shall be effective on April 9, 1996. The
incorporation by reference of certain publications listed in the
criteria is approved by the Director of the Federal Register as of
April 9, 1996.
Subpart B--Compliance Certification and Re-certification
Applications
Sec. 194.11 Completeness and accuracy of compliance applications.
Information provided to the Administrator in support of any
compliance application shall be complete and accurate. The
Administrator's evaluation for certification pursuant to section
8(d)(1)(B) of the WIPP LWA and evaluation for recertification pursuant
to section 8(f)(2) of the WIPP LWA shall not begin until the
Administrator has notified the Secretary, in writing, that a complete
application in accordance with this part has been received.
Sec. 194.12 Submission of compliance applications.
Unless otherwise specified by the Administrator or the
Administrator's authorized representative, 30 copies of any compliance
application, any accompanying materials, and any amendments thereto
shall be submitted in a printed form to the Administrator.
Sec. 194.13 Submission of reference materials.
Information may be included by reference into compliance
application(s), provided that the references are clear and specific and
that, unless otherwise specified by the Administrator or the
Administrator's authorized representative, 10 copies of the referenced
information are submitted to the Administrator. Referenced materials
which are widely available in standard textbooks or reference books
need not be submitted.
Sec. 194.14 Content of compliance certification application.
Any compliance application shall include:
(a) A current description of the natural and engineered features
that may affect the performance of the disposal system. The description
of the disposal system shall include, at a minimum, the following
information:
(1) The location of the disposal system and the controlled area;
(2) A description of the geology, geophysics, hydrogeology,
hydrology, and geochemistry of the disposal system and its vicinity and
how these conditions are expected to change and interact over the
regulatory time frame. Such description shall include, at a minimum:
(i) Existing fluids and fluid hydraulic potential, including brine
pockets, in and near the disposal system; and
(ii) Existing higher permeability anhydrite interbeds located at or
near the horizon of the waste.
(3) The presence and characteristics of potential pathways for
transport of waste from the disposal system to the accessible
environment including, but not limited to: Existing boreholes, solution
features, breccia pipes, and other potentially permeable features, such
as interbeds.
(4) The projected geophysical, hydrogeologic and geochemical
conditions of the disposal system due to the presence of waste
including, but not limited to, the effects of production of heat or
gases from the waste.
(b) A description of the design of the disposal system including:
(1) Information on materials of construction including, but not
limited to: Geologic media, structural materials, engineered barriers,
general arrangement, and approximate dimensions; and
(2) Computer codes and standards that have been applied to the
design and construction of the disposal system.
(c) Results of assessments conducted pursuant to this part.
(d) A description of input parameters associated with assessments
conducted pursuant to this part and the basis for selecting those input
parameters.
(e) Documentation of measures taken to meet the assurance
requirements of this part.
(f) A description of waste acceptance criteria and actions taken to
assure adherence to such criteria.
(g) A description of background radiation in air, soil and water in
the vicinity of the disposal system and the procedures employed to
determine such radiation.
(h) One or more topographic map(s) of the vicinity of the disposal
system. The contour interval shall be sufficient to show clearly the
pattern of surface water flow in the vicinity of the disposal system.
The map(s) shall include standard map notations and symbols, and, in
addition, shall show boundaries of the controlled area and the location
of any active, inactive, and abandoned injection and withdrawal wells
in the controlled area and in the vicinity of the disposal system.
(i) A description of past and current climatologic and meteorologic
conditions in the vicinity of the disposal system and how these
conditions are expected to change over the regulatory time frame.
(j) The information required elsewhere in this part or any
additional information, analyses, tests, or records determined by the
Administrator or the Administrator's authorized representative to be
necessary for determining compliance with this part.
Sec. 194.15 Content of compliance re-certification application(s).
(a) In submitting documentation of continued compliance pursuant to
section 8(f) of the WIPP LWA, the previous compliance application shall
be updated to provide sufficient information for the Administrator to
determine whether or not the WIPP continues to be in compliance with
the disposal regulations. Updated documentation shall include:
(1) All additional geologic, geophysical, geochemical, hydrologic,
and meteorologic information;
[[Page 5239]]
(2) All additional monitoring data, analyses and results;
(3) All additional analyses and results of laboratory experiments
conducted by the Department or its contractors as part of the WIPP
program;
(4) An identification of any activities or assumptions that deviate
from the most recent compliance application;
(5) A description of all waste emplaced in the disposal system
since the most recent compliance certification or re-certification
application. Such description shall consist of a description of the
waste characteristics and waste components identified in
Secs. 194.24(b)(1) and 194.24(b)(2);
(6) Any significant information not previously included in a
compliance certification or re-certification application related to
whether the disposal system continues to be in compliance with the
disposal regulations; and
(7) Any additional information requested by the Administrator or
the Administrator's authorized representative.
(b) To the extent that information required for a re-certification
of compliance remains valid and has been submitted in previous
certification or re-certification application(s), such information need
not be duplicated in subsequent applications; such information may be
summarized and referenced.
Subpart C--Compliance Certification and Re-certification
General Requirements
Sec. 194.21 Inspections.
(a) The Administrator or the Administrator's authorized
representative(s) shall, at any time:
(1) Be afforded unfettered and unannounced access to inspect any
area of the WIPP, and any locations performing activities that provide
information relevant to compliance application(s), to which the
Department has rights of access. Such access shall be equivalent to
access afforded Department employees upon presentation of credentials
and other required documents.
(2) Be allowed to obtain samples, including split samples, and to
monitor and measure aspects of the disposal system and the waste
proposed for disposal in the disposal system.
(b) Records (including data and other information in any form) kept
by the Department pertaining to the WIPP shall be made available to the
Administrator or the Administrator's authorized representative upon
request. If requested records are not immediately available, they shall
be delivered within 30 calendar days of the request.
(c) The Department shall, upon request by the Administrator or the
Administrator's authorized representative, provide permanent, private
office space that is accessible to the disposal system. The office
space shall be for the exclusive use of the Administrator or the
Administrator's authorized representative(s).
(d) The Administrator or the Administrator's authorized
representative(s) shall comply with applicable access control measures
for security, radiological protection, and personal safety when
conducting activities pursuant to this section.
Sec. 194.22 Quality assurance.
(a)(1) As soon as practicable after April 9, 1996, the Department
shall adhere to a quality assurance program that implements the
requirements of ASME NQA-1-1989 edition, ASME NQA-2a-1990 addenda, part
2.7, to ASME NQA-2-1989 edition, and ASME NQA-3-1989 edition (excluding
Section 2.1 (b) and (c), and Section 17.1). (Incorporation by reference
as specified in Sec. 194.5.)
(2) Any compliance application shall include information which
demonstrates that the quality assurance program required pursuant to
paragraph (a)(1) of this section has been established and executed for:
(i) Waste characterization activities and assumptions;
(ii) Environmental monitoring, monitoring of the performance of the
disposal system, and sampling and analysis activities;
(iii) Field measurements of geologic factors, ground water,
meteorologic, and topographic characteristics;
(iv) Computations, computer codes, models and methods used to
demonstrate compliance with the disposal regulations in accordance with
the provisions of this part;
(v) Procedures for implementation of expert judgment elicitation
used to support applications for certification or re-certification of
compliance;
(vi) Design of the disposal system and actions taken to ensure
compliance with design specifications;
(vii) The collection of data and information used to support
compliance application(s); and
(viii) Other systems, structures, components, and activities
important to the containment of waste in the disposal system.
(b) Any compliance application shall include information which
demonstrates that data and information collected prior to the
implementation of the quality assurance program required pursuant to
paragraph (a)(1) of this section have been qualified in accordance with
an alternate methodology, approved by the Administrator or the
Administrator's authorized representative, that employs one or more of
the following methods: Peer review, conducted in a manner that is
compatible with NUREG-1297, ``Peer Review for High-Level Nuclear Waste
Repositories,'' published February 1988 (incorporation by reference as
specified in Sec. 194.5); corroborating data; confirmatory testing; or
a quality assurance program that is equivalent in effect to ASME NQA-1-
1989 edition, ASME NQA-2a-1990 addenda, part 2.7, to ASME NQA-2-1989
edition, and ASME NQA-3-1989 edition (excluding Section 2.1 (b) and (c)
and Section 17.1). (Incorporation by reference as specified in
Sec. 194.5.)
(c) Any compliance application shall provide, to the extent
practicable, information which describes how all data used to support
the compliance application have been assessed for their quality
characteristics, including:
(1) Data accuracy, i.e., the degree to which data agree with an
accepted reference or true value;
(2) Data precision, i.e., a measure of the mutual agreement between
comparable data gathered or developed under similar conditions
expressed in terms of a standard deviation;
(3) Data representativeness, i.e., the degree to which data
accurately and precisely represent a characteristic of a population, a
parameter, variations at a sampling point, or environmental conditions;
(4) Data completeness, i.e., a measure of the amount of valid data
obtained compared to the amount that was expected; and
(5) Data comparability, i.e., a measure of the confidence with
which one data set can be compared to another.
(d) Any compliance application shall provide information which
demonstrates how all data are qualified for use in the demonstration of
compliance.
(e) The Administrator will verify appropriate execution of quality
assurance programs through inspections, record reviews and record
keeping requirements, which may include, but may not be limited to,
surveillance, audits and management systems reviews.
Sec. 194.23 Models and computer codes.
(a) Any compliance application shall include:
[[Page 5240]]
(1) A description of the conceptual models and scenario
construction used to support any compliance application.
(2) A description of plausible, alternative conceptual model(s)
seriously considered but not used to support such application, and an
explanation of the reason(s) why such model(s) was not deemed to
accurately portray performance of the disposal system.
(3) Documentation that:
(i) Conceptual models and scenarios reasonably represent possible
future states of the disposal system;
(ii) Mathematical models incorporate equations and boundary
conditions which reasonably represent the mathematical formulation of
the conceptual models;
(iii) Numerical models provide numerical schemes which enable the
mathematical models to obtain stable solutions;
(iv) Computer models accurately implement the numerical models;
i.e., computer codes are free of coding errors and produce stable
solutions;
(v) Conceptual models have undergone peer review according to
Sec. 194.27.
(b) Computer codes used to support any compliance application shall
be documented in a manner that complies with the requirements of ASME
NQA-2a-1990 addenda, part 2.7, to ASME NQA-2-1989 edition.
(Incorporation by reference as specified in Sec. 194.5.)
(c) Documentation of all models and computer codes included as part
of any compliance application performance assessment calculation shall
be provided. Such documentation shall include, but shall not be limited
to:
(1) Descriptions of the theoretical backgrounds of each model and
the method of analysis or assessment;
(2) General descriptions of the models; discussions of the limits
of applicability of each model; detailed instructions for executing the
computer codes, including hardware and software requirements, input and
output formats with explanations of each input and output variable and
parameter (e.g., parameter name and units); listings of input and
output files from a sample computer run; and reports on code
verification, benchmarking, validation, and quality assurance
procedures;
(3) Detailed descriptions of the structure of computer codes and
complete listings of the source codes;
(4) Detailed descriptions of data collection procedures, sources of
data, data reduction and analysis, and code input parameter
development;
(5) Any necessary licenses; and
(6) An explanation of the manner in which models and computer codes
incorporate the effects of parameter correlation.
(d) The Administrator or the Administrator's authorized
representative may verify the results of computer simulations used to
support any compliance application by performing independent
simulations. Data files, source codes, executable versions of computer
software for each model, other material or information needed to permit
the Administrator or the Administrator's authorized representative to
perform independent simulations, and access to necessary hardware to
perform such simulations, shall be provided within 30 calendar days of
a request by the Administrator or the Administrator's authorized
representative.
Sec. 194.24 Waste characterization.
(a) Any compliance application shall describe the chemical,
radiological and physical composition of all existing waste proposed
for disposal in the disposal system. To the extent practicable, any
compliance application shall also describe the chemical, radiological
and physical composition of to-be-generated waste proposed for disposal
in the disposal system. These descriptions shall include a list of
waste components and their approximate quantities in the waste. This
list may be derived from process knowledge, current non-destructive
examination/assay, or other information and methods.
(b) The Department shall submit in the compliance certification
application the results of an analysis which substantiates:
(1) That all waste characteristics influencing containment of waste
in the disposal system have been identified and assessed for their
impact on disposal system performance. The characteristics to be
analyzed shall include, but shall not be limited to: Solubility;
formation of colloidal suspensions containing radionuclides; production
of gas from the waste; shear strength; compactability; and other waste-
related inputs into the computer models that are used in the
performance assessment.
(2) That all waste components influencing the waste characteristics
identified in paragraph (b)(1) of this section have been identified and
assessed for their impact on disposal system performance. The
components to be analyzed shall include, but shall not be limited to:
metals; cellulosics; chelating agents; water and other liquids; and
activity in curies of each isotope of the radionuclides present.
(3) Any decision to exclude consideration of any waste
characteristic or waste component because such characteristic or
component is not expected to significantly influence the containment of
the waste in the disposal system.
(c) For each waste component identified and assessed pursuant to
paragraph (b) of this section, the Department shall specify the
limiting value (expressed as an upper or lower limit of mass, volume,
curies, concentration, etc.), and the associated uncertainty (i.e.,
margin of error) for each limiting value, of the total inventory of
such waste proposed for disposal in the disposal system. Any compliance
application shall:
(1) Demonstrate that, for the total inventory of waste proposed for
disposal in the disposal system, WIPP complies with the numeric
requirements of Sec. 194.34 and Sec. 194.55 for the upper or lower
limits (including the associated uncertainties), as appropriate, for
each waste component identified in paragraph (b)(2) of this section,
and for the plausible combinations of upper and lower limits of such
waste components that would result in the greatest estimated release.
(2) Identify and describe the method(s) used to quantify the limits
of waste components identified in paragraph (b)(2) of this section.
(3) Provide information which demonstrates that the use of process
knowledge to quantify components in waste for disposal conforms with
the quality assurance requirements found in Sec. 194.22.
(4) Provide information which demonstrates that a system of
controls has been and will continue to be implemented to confirm that
the total amount of each waste component that will be emplaced in the
disposal system will not exceed the upper limiting value or fall below
the lower limiting value described in the introductory text of
paragraph (c) of this section. The system of controls shall include,
but shall not be limited to: Measurement; sampling; chain of custody
records; record keeping systems; waste loading schemes used; and other
documentation.
(5) Identify and describe such controls delineated in paragraph
(c)(4) of this section and confirm that they are applied in accordance
with the quality assurance requirements found in Sec. 194.22.
(d) The Department shall include a waste loading scheme in any
compliance application, or else performance assessments conducted
[[Page 5241]]
pursuant to Sec. 194.32 and compliance assessments conducted pursuant
to Sec. 194.54 shall assume random placement of waste in the disposal
system.
(e) Waste may be emplaced in the disposal system only if the
emplaced components of such waste will not cause:
(1) The total quantity of waste in the disposal system to exceed
the upper limiting value, including the associated uncertainty,
described in the introductory text to paragraph (c) of this section; or
(2) The total quantity of waste that will have been emplaced in the
disposal system, prior to closure, to fall below the lower limiting
value, including the associated uncertainty, described in the
introductory text to paragraph (c) of this section.
(f) Waste emplacement shall conform to the assumed waste loading
conditions, if any, used in performance assessments conducted pursuant
to Sec. 194.32 and compliance assessments conducted pursuant to
Sec. 194.54.
(g) The Department shall demonstrate in any compliance application
that the total inventory of waste emplaced in the disposal system
complies with the limitations on transuranic waste disposal described
in the WIPP LWA.
(h) The Administrator will use inspections and records reviews,
such as audits, to verify compliance with this section.
Sec. 194.25 Future state assumptions.
(a) Unless otherwise specified in this part or in the disposal
regulations, performance assessments and compliance assessments
conducted pursuant the provisions of this part to demonstrate
compliance with Sec. 191.13, Sec. 191.15 and part 191, subpart C shall
assume that characteristics of the future remain what they are at the
time the compliance application is prepared, provided that such
characteristics are not related to hydrogeologic, geologic or climatic
conditions.
(b) In considering future states pursuant to this section, the
Department shall document in any compliance application, to the extent
practicable, effects of potential future hydrogeologic, geologic and
climatic conditions on the disposal system over the regulatory time
frame. Such documentation shall be part of the activities undertaken
pursuant to Sec. 194.14, Content of compliance certification
application; Sec. 194.32, Scope of performance assessments; and
Sec. 194.54, Scope of compliance assessments.
(1) In considering the effects of hydrogeologic conditions on the
disposal system, the Department shall document in any compliance
application, to the extent practicable, the effects of potential
changes to hydrogeologic conditions.
(2) In considering the effects of geologic conditions on the
disposal system, the Department shall document in any compliance
application, to the extent practicable, the effects of potential
changes to geologic conditions, including, but not limited to:
Dissolution; near surface geomorphic features and processes; and
related subsidence in the geologic units of the disposal system.
(3) In considering the effects of climatic conditions on the
disposal system, the Department shall document in any compliance
application, to the extent practicable, the effects of potential
changes to future climate cycles of increased precipitation (as
compared to present conditions).
Sec. 194.26 Expert judgment.
(a) Expert judgment, by an individual expert or panel of experts,
may be used to support any compliance application, provided that expert
judgment does not substitute for information that could reasonably be
obtained through data collection or experimentation.
(b) Any compliance application shall:
(1) Identify any expert judgments used to support the application
and shall identify experts (by name and employer) involved in any
expert judgment elicitation processes used to support the application.
(2) Describe the process of eliciting expert judgment, and document
the results of expert judgment elicitation processes and the reasoning
behind those results. Documentation of interviews used to elicit
judgments from experts, the questions or issues presented for
elicitation of expert judgment, background information provided to
experts, and deliberations and formal interactions among experts shall
be provided. The opinions of all experts involved in each elicitation
process shall be provided whether the opinions are used to support
compliance applications or not.
(3) Provide documentation that the following restrictions and
guidelines have been applied to any selection of individuals used to
elicit expert judgments:
(i) Individuals who are members of the team of investigators
requesting the judgment or the team of investigators who will use the
judgment were not selected; and
(ii) Individuals who maintain, at any organizational level, a
supervisory role or who are supervised by those who will utilize the
judgment were not selected.
(4) Provide information which demonstrates that:
(i) The expertise of any individual involved in expert judgment
elicitation comports with the level of knowledge required by the
questions or issues presented to that individual; and
(ii) The expertise of any expert panel, as a whole, involved in
expert judgment elicitation comports with the level and variety of
knowledge required by the questions or issues presented to that panel.
(5) Explain the relationship among the information and issues
presented to experts prior to the elicitation process, the elicited
judgment of any expert panel or individual, and the purpose for which
the expert judgment is being used in compliance applications(s).
(6) Provide documentation that the initial purpose for which expert
judgment was intended, as presented to the expert panel, is consistent
with the purpose for which this judgment was used in compliance
application(s).
(7) Provide documentation that the following restrictions and
guidelines have been applied in eliciting expert judgment:
(i) At least five individuals shall be used in any expert
elicitation process, unless there is a lack or unavailability of
experts and a documented rationale is provided that explains why fewer
than five individuals were selected.
(ii) At least two-thirds of the experts involved in an elicitation
shall consist of individuals who are not employed directly by the
Department or by the Department's contractors, unless the Department
can demonstrate and document that there is a lack or unavailability of
qualified independent experts. If so demonstrated, at least one-third
of the experts involved in an elicitation shall consist of individuals
who are not employed directly by the Department or by the Department's
contractors.
(c) The public shall be afforded a reasonable opportunity to
present its scientific and technical views to expert panels as input to
any expert elicitation process.
Sec. 194.27 Peer review.
(a) Any compliance application shall include documentation of peer
review that has been conducted, in a manner required by this section,
for:
(1) Conceptual models selected and developed by the Department;
(2) Waste characterization analyses as required in Sec. 194.24(b);
and
(3) Engineered barrier evaluation as required in Sec. 194.44.
[[Page 5242]]
(b) Peer review processes required in paragraph (a) of this
section, and conducted subsequent to the promulgation of this part,
shall be conducted in a manner that is compatible with NUREG-1297,
``Peer Review for High-Level Nuclear Waste Repositories,'' published
February 1988. (Incorporation by reference as specified in Sec. 194.5.)
(c) Any compliance application shall:
(1) Include information that demonstrates that peer review
processes required in paragraph (a) of this section, and conducted
prior to the implementation of the promulgation of this part, were
conducted in accordance with an alternate process substantially
equivalent in effect to NUREG-1297 and approved by the Administrator or
the Administrator's authorized representative; and
(2) Document any peer review processes conducted in addition to
those required pursuant to paragraph (a) of this section. Such
documentation shall include formal requests, from the Department to
outside review groups or individuals, to review or comment on any
information used to support compliance applications, and the responses
from such groups or individuals.
Containment Requirements
Sec. 194.31 Application of release limits.
The release limits shall be calculated according to part 191,
appendix A of this chapter, using the total activity, in curies, that
will exist in the disposal system at the time of disposal.
Sec. 194.32 Scope of performance assessments.
(a) Performance assessments shall consider natural processes and
events, mining, deep drilling, and shallow drilling that may affect the
disposal system during the regulatory time frame.
(b) Assessments of mining effects may be limited to changes in the
hydraulic conductivity of the hydrogeologic units of the disposal
system from excavation mining for natural resources. Mining shall be
assumed to occur with a one in 100 probability in each century of the
regulatory time frame. Performance assessments shall assume that
mineral deposits of those resources, similar in quality and type to
those resources currently extracted from the Delaware Basin, will be
completely removed from the controlled area during the century in which
such mining is randomly calculated to occur. Complete removal of such
mineral resources shall be assumed to occur only once during the
regulatory time frame.
(c) Performance assessments shall include an analysis of the
effects on the disposal system of any activities that occur in the
vicinity of the disposal system prior to disposal and are expected to
occur in the vicinity of the disposal system soon after disposal. Such
activities shall include, but shall not be limited to, existing
boreholes and the development of any existing leases that can be
reasonably expected to be developed in the near future, including
boreholes and leases that may be used for fluid injection activities.
(d) Performance assessments need not consider processes and events
that have less than one chance in 10,000 of occurring over 10,000
years.
(e) Any compliance application(s) shall include information which:
(1) Identifies all potential processes, events or sequences and
combinations of processes and events that may occur during the
regulatory time frame and may affect the disposal system;
(2) Identifies the processes, events or sequences and combinations
of processes and events included in performance assessments; and
(3) Documents why any processes, events or sequences and
combinations of processes and events identified pursuant to paragraph
(e)(1) of this section were not included in performance assessment
results provided in any compliance application.
Sec. 194.33 Consideration of drilling events in performance
assessments.
(a) Performance assessments shall examine deep drilling and shallow
drilling that may potentially affect the disposal system during the
regulatory time frame.
(b) The following assumptions and process shall be used in
assessing the likelihood and consequences of drilling events, and the
results of such process shall be documented in any compliance
application:
(1) Inadvertent and intermittent intrusion by drilling for
resources (other than those resources provided by the waste in the
disposal system or engineered barriers designed to isolate such waste)
is the most severe human intrusion scenario.
(2) In performance assessments, drilling events shall be assumed to
occur in the Delaware Basin at random intervals in time and space
during the regulatory time frame.
(3) The frequency of deep drilling shall be calculated in the
following manner:
(i) Identify deep drilling that has occurred for each resource in
the Delaware Basin over the past 100 years prior to the time at which a
compliance application is prepared.
(ii) The total rate of deep drilling shall be the sum of the rates
of deep drilling for each resource.
(4) The frequency of shallow drilling shall be calculated in the
following manner:
(i) Identify shallow drilling that has occurred for each resource
in the Delaware Basin over the past 100 years prior to the time at
which a compliance application is prepared.
(ii) The total rate of shallow drilling shall be the sum of the
rates of shallow drilling for each resource.
(iii) In considering the historical rate of all shallow drilling,
the Department may, if justified, consider only the historical rate of
shallow drilling for resources of similar type and quality to those in
the controlled area.
(c) Performance assessments shall document that in analyzing the
consequences of drilling events, the Department assumed that:
(1) Future drilling practices and technology will remain consistent
with practices in the Delaware Basin at the time a compliance
application is prepared. Such future drilling practices shall include,
but shall not be limited to: The types and amounts of drilling fluids;
borehole depths, diameters, and seals; and the fraction of such
boreholes that are sealed by humans; and
(2) Natural processes will degrade or otherwise affect the
capability of boreholes to transmit fluids over the regulatory time
frame.
(d) With respect to future drilling events, performance assessments
need not analyze the effects of techniques used for resource recovery
subsequent to the drilling of the borehole.
Sec. 194.34 Results of performance assessments.
(a) The results of performance assessments shall be assembled into
``complementary, cumulative distribution functions'' (CCDFs) that
represent the probability of exceeding various levels of cumulative
release caused by all significant processes and events.
(b) Probability distributions for uncertain disposal system
parameter values used in performance assessments shall be developed and
documented in any compliance application.
(c) Computational techniques, which draw random samples from across
the entire range of the probability distributions developed pursuant to
paragraph (b) of this section, shall be used in generating CCDFs and
shall be documented in any compliance application.
[[Page 5243]]
(d) The number of CCDFs generated shall be large enough such that,
at cumulative releases of 1 and 10, the maximum CCDF generated exceeds
the 99th percentile of the population of CCDFs with at least a 0.95
probability. Values of cumulative release shall be calculated according
to Note 6 of Table 1, Appendix A of Part 191 of this chapter.
(e) Any compliance application shall display the full range of
CCDFs generated.
(f) Any compliance application shall provide information which
demonstrates that there is at least a 95 percent level of statistical
confidence that the mean of the population of CCDFs meets the
containment requirements of Sec. 191.13 of this chapter.
Assurance Requirements
Sec. 194.41 Active institutional controls.
(a) Any compliance application shall include detailed descriptions
of proposed active institutional controls, the controls' location, and
the period of time the controls are proposed to remain active.
Assumptions pertaining to active institutional controls and their
effectiveness in terms of preventing or reducing radionuclide releases
shall be supported by such descriptions.
(b) Performance assessments shall not consider any contributions
from active institutional controls for more than 100 years after
disposal.
Sec. 194.42 Monitoring.
(a) The Department shall conduct an analysis of the effects of
disposal system parameters on the containment of waste in the disposal
system and shall include the results of such analysis in any compliance
application. The results of the analysis shall be used in developing
plans for pre-closure and post-closure monitoring required pursuant to
paragraphs (c) and (d) of this section. The disposal system parameters
analyzed shall include, at a minimum:
(1) Properties of backfilled material, including porosity,
permeability, and degree of compaction and reconsolidation;
(2) Stresses and extent of deformation of the surrounding roof,
walls, and floor of the waste disposal room;
(3) Initiation or displacement of major brittle deformation
features in the roof or surrounding rock;
(4) Ground water flow and other effects of human intrusion in the
vicinity of the disposal system;
(5) Brine quantity, flux, composition, and spatial distribution;
(6) Gas quantity and composition; and
(7) Temperature distribution.
(b) For all disposal system parameters analyzed pursuant to
paragraph (a) of this section, any compliance application shall
document and substantiate the decision not to monitor a particular
disposal system parameter because that parameter is considered to be
insignificant to the containment of waste in the disposal system or to
the verification of predictions about the future performance of the
disposal system.
(c) Pre-closure monitoring. To the extent practicable, pre-closure
monitoring shall be conducted of significant disposal system
parameter(s) as identified by the analysis conducted pursuant to
paragraph (a) of this section. A disposal system parameter shall be
considered significant if it affects the system's ability to contain
waste or the ability to verify predictions about the future performance
of the disposal system. Such monitoring shall begin as soon as
practicable; however, in no case shall waste be emplaced in the
disposal system prior to the implementation of pre-closure monitoring.
Pre-closure monitoring shall end at the time at which the shafts of the
disposal system are backfilled and sealed.
(d) Post-closure monitoring. The disposal system shall, to the
extent practicable, be monitored as soon as practicable after the
shafts of the disposal system are backfilled and sealed to detect
substantial and detrimental deviations from expected performance and
shall end when the Department can demonstrate to the satisfaction of
the Administrator that there are no significant concerns to be
addressed by further monitoring. Post-closure monitoring shall be
complementary to monitoring required pursuant to applicable federal
hazardous waste regulations at parts 264, 265, 268, and 270 of this
chapter and shall be conducted with techniques that do not jeopardize
the containment of waste in the disposal system.
(e) Any compliance application shall include detailed pre-closure
and post-closure monitoring plans for monitoring the performance of the
disposal system. At a minimum, such plans shall:
(1) Identify the parameters that will be monitored and how baseline
values will be determined;
(2) Indicate how each parameter will be used to evaluate any
deviations from the expected performance of the disposal system; and
(3) Discuss the length of time over which each parameter will be
monitored to detect deviations from expected performance.
Sec. 194.43 Passive institutional controls.
(a) Any compliance application shall include detailed descriptions
of the measures that will be employed to preserve knowledge about the
location, design, and contents of the disposal system. Such measures
shall include:
(1) Identification of the controlled area by markers that have been
designed and will be fabricated and emplaced to be as permanent as
practicable;
(2) Placement of records in the archives and land record systems of
local, State, and Federal governments, and international archives, that
would likely be consulted by individuals in search of unexploited
resources. Such records shall identify:
(i) The location of the controlled area and the disposal system;
(ii) The design of the disposal system;
(iii) The nature and hazard of the waste;
(iv) Geologic, geochemical, hydrologic, and other site data
pertinent to the containment of waste in the disposal system, or the
location of such information; and
(v) The results of tests, experiments, and other analyses relating
to backfill of excavated areas, shaft sealing, waste interaction with
the disposal system, and other tests, experiments, or analyses
pertinent to the containment of waste in the disposal system, or the
location of such information.
(3) Other passive institutional controls practicable to indicate
the dangers of the waste and its location.
(b) Any compliance application shall include the period of time
passive institutional controls are expected to endure and be
understood.
(c) The Administrator may allow the Department to assume passive
institutional control credit, in the form of reduced likelihood of
human intrusion, if the Department demonstrates in the compliance
application that such credit is justified because the passive
institutional controls are expected to endure and be understood by
potential intruders for the time period approved by the Administrator.
Such credit, or a smaller credit as determined by the Administrator,
cannot be used for more than several hundred years and may decrease
over time. In no case, however, shall passive institutional controls be
assumed to eliminate the likelihood of human intrusion entirely.
Sec. 194.44 Engineered barriers.
(a) Disposal systems shall incorporate engineered barrier(s)
designed to prevent or substantially delay the movement of water or
radionuclides toward the accessible environment.
[[Page 5244]]
(b) In selecting any engineered barrier(s) for the disposal system,
the Department shall evaluate the benefit and detriment of engineered
barrier alternatives, including but not limited to: Cementation,
shredding, supercompaction, incineration, vitrification, improved waste
canisters, grout and bentonite backfill, melting of metals, alternative
configurations of waste placements in the disposal system, and
alternative disposal system dimensions. The results of this evaluation
shall be included in any compliance application and shall be used to
justify the selection and rejection of each engineered barrier
evaluated.
(c)(1) In conducting the evaluation of engineered barrier
alternatives, the following shall be considered, to the extent
practicable:
(i) The ability of the engineered barrier to prevent or
substantially delay the movement of water or waste toward the
accessible environment;
(ii) The impact on worker exposure to radiation both during and
after incorporation of engineered barriers;
(iii) The increased ease or difficulty of removing the waste from
the disposal system;
(iv) The increased or reduced risk of transporting the waste to the
disposal system;
(v) The increased or reduced uncertainty in compliance assessment;
(vi) Public comments requesting specific engineered barriers;
(vii) The increased or reduced total system costs;
(viii) The impact, if any, on other waste disposal programs from
the incorporation of engineered barriers (e.g., the extent to which the
incorporation of engineered barriers affects the volume of waste);
(ix) The effects on mitigating the consequences of human intrusion.
(2) If, after consideration of one or more of the factors in
paragraph (c)(1) of this section, the Department concludes that an
engineered barrier considered within the scope of the evaluation should
be rejected without evaluating the remaining factors in paragraph
(c)(1) of this section, then any compliance application shall provide a
justification for this rejection explaining why the evaluation of the
remaining factors would not alter the conclusion.
(d) In considering the ability of engineered barriers to prevent or
substantially delay the movement of water or radionuclides toward the
accessible environment, the benefit and detriment of engineered
barriers for existing waste already packaged, existing waste not yet
packaged, existing waste in need of re-packaging, and to-be-generated
waste shall be considered separately and described.
(e) The evaluation described in paragraphs (b), (c) and (d) of this
section shall consider engineered barriers alone and in combination.
Sec. 194.45 Consideration of the presence of resources.
Any compliance application shall include information that
demonstrates that the favorable characteristics of the disposal system
compensate for the presence of resources in the vicinity of the
disposal system and the likelihood of the disposal system being
disturbed as a result of the presence of those resources. If
performance assessments predict that the disposal system meets the
containment requirements of Sec. 191.13 of this chapter, then the
Agency will assume that the requirements of this section and
Sec. 191.14(e) of this chapter have been fulfilled.
Sec. 194.46 Removal of waste.
Any compliance application shall include documentation which
demonstrates that removal of waste from the disposal system is feasible
for a reasonable period of time after disposal. Such documentation
shall include an analysis of the technological feasibility of mining
the sealed disposal system, given technology levels at the time a
compliance application is prepared.
Individual and Ground-water Protection Requirements
Sec. 194.51 Consideration of protected individual.
Compliance assessments that analyze compliance with Sec. 191.15 of
this chapter shall assume that an individual resides at the single
geographic point on the surface of the accessible environment where
that individual would be expected to receive the highest dose from
radionuclide releases from the disposal system.
Sec. 194.52 Consideration of exposure pathways.
In compliance assessments that analyze compliance with Sec. 191.15
of this chapter, all potential exposure pathways from the disposal
system to individuals shall be considered. Compliance assessments with
part 191, subpart C and Sec. 191.15 of this chapter shall assume that
individuals consume 2 liters per day of drinking water from any
underground source of drinking water in the accessible environment.
Sec. 194.53 Consideration of underground sources of drinking water.
In compliance assessments that analyze compliance with part 191,
subpart C of this chapter, all underground sources of drinking water in
the accessible environment that are expected to be affected by the
disposal system over the regulatory time frame shall be considered. In
determining whether underground sources of drinking water are expected
to be affected by the disposal system, underground interconnections
among bodies of surface water, ground water, and underground sources of
drinking water shall be considered.
Sec. 194.54 Scope of compliance assessments.
(a) Any compliance application shall contain compliance assessments
required pursuant to this part. Compliance assessments shall include
information which:
(1) Identifies potential processes, events, or sequences of
processes and events that may occur over the regulatory time frame;
(2) Identifies the processes, events, or sequences of processes and
events included in compliance assessment results provided in any
compliance application; and
(3) Documents why any processes, events, or sequences of processes
and events identified pursuant to paragraph (a)(1) of this section were
not included in compliance assessment results provided in any
compliance application.
(b) Compliance assessments of undisturbed performance shall include
the effects on the disposal system of:
(1) Existing boreholes in the vicinity of the disposal system, with
attention to the pathways they provide for migration of radionuclides
from the site; and
(2) Any activities that occur in the vicinity of the disposal
system prior to or soon after disposal. Such activities shall include,
but shall not be limited to: Existing boreholes and the development of
any existing leases that can be reasonably expected to be developed in
the near future, including boreholes and leases that may be used for
fluid injection activities.
Sec. 194.55 Results of compliance assessments.
(a) Compliance assessments shall consider and document uncertainty
in the performance of the disposal system.
(b) Probability distributions for uncertain disposal system
parameter values used in compliance assessments shall be developed and
documented in any compliance application.
[[Page 5245]]
(c) Computational techniques which draw random samples from across
the entire range of values of each probability distribution developed
pursuant to paragraph (b) of this section shall be used to generate a
range of:
(1) Estimated committed effective doses received from all pathways
pursuant to Sec. 194.51 and Sec. 194.52;
(2) Estimated radionuclide concentrations in USDWs pursuant to
Sec. 194.53; and
(3) Estimated dose equivalent received from USDWs pursuant to
Sec. 194.52 and Sec. 194.53.
(d) The number of estimates generated pursuant to paragraph (c) of
this section shall be large enough such that the maximum estimates of
doses and concentrations generated exceed the 99th percentile of the
population of estimates with at least a 0.95 probability.
(e) Any compliance application shall display:
(1) The full range of estimated radiation doses; and
(2) The full range of estimated radionuclide concentrations.
(f) Any compliance application shall document that there is at
least a 95 percent level of statistical confidence that the mean and
the median of the range of estimated radiation doses and the range of
estimated radionuclide concentrations meet the requirements of
Sec. 191.15 and part 191, subpart C of this chapter, respectively.
Subpart D--Public Participation
Sec. 194.61 Advance notice of proposed rulemaking for certification.
(a) Upon receipt of a compliance application submitted pursuant to
section 8(d)(1) of the WIPP LWA and Sec. 194.11, the Agency will
publish in the Federal Register an Advance Notice of Proposed
Rulemaking announcing that a compliance application has been received,
soliciting comment on such application, and announcing the Agency's
intent to conduct a rulemaking to certify whether the WIPP facility
will comply with the disposal regulations.
(b) A copy of the compliance application will be made available for
inspection in Agency dockets established pursuant to Sec. 194.67.
(c) The notice will provide a public comment period of 120 days.
(d) A public hearing concerning the notice will be held if a
written request is received by the Administrator or the Administrator's
authorized representative within 30 calendar days of the date of
publication pursuant to paragraph (a) of this section.
(e) Any comments received on the notice will be made available for
inspection in the dockets established pursuant to Sec. 194.67.
(f) Any comments received on the notice will be provided to the
Department and the Department may submit to the Agency written
responses to the comments.
Sec. 194.62 Notice of proposed rulemaking for certification.
(a) The Administrator will publish a Notice of Proposed Rulemaking
in the Federal Register announcing the Administrator's proposed
decision, pursuant to section 8(d)(1) of the WIPP LWA, whether to issue
a certification that the WIPP facility will comply with the disposal
regulations and soliciting comment on the proposal.
(b) The notice will provide a public comment period of at least 120
days.
(c) The notice will announce public hearings in New Mexico.
(d) Any comments received on the notice will be made available for
inspection in the dockets established pursuant to Sec. 194.67.
Sec. 194.63 Final rule for certification.
(a) The Administrator will publish a Final Rule in the Federal
Register announcing the Administrator's decision, pursuant to section
8(d)(1) of the WIPP LWA, whether to issue a certification that the WIPP
facility will comply with the disposal regulations.
(b) A document summarizing significant comments and issues arising
from comments received on the Notice of Proposed Rulemaking, as well as
the Administrator's response to such significant comments and issues,
will be prepared and will be made available for inspection in the
dockets established pursuant to Sec. 194.67.
Sec. 194.64 Documentation of continued compliance.
(a) Upon receipt of documentation of continued compliance with the
disposal regulations pursuant to section 8(f) of the WIPP LWA and
Sec. 194.11, the Administrator will publish a notice in the Federal
Register announcing that such documentation has been received,
soliciting comment on such documentation, and announcing the
Administrator's intent to determine whether or not the WIPP facility
continues to be in compliance with the disposal regulations.
(b) Copies of documentation of continued compliance received by the
Administrator will be made available for inspection in the dockets
established pursuant to Sec. 194.67.
(c) The notice will provide a public comment period of at least 30
days after publication pursuant to paragraph (a) of this section.
(d) Any comments received on such notice will be made available for
public inspection in the dockets established pursuant to Sec. 194.67.
(e) Upon completion of review of the documentation of continued
compliance with the disposal regulations, the Administrator will
publish a notice in the Federal Register announcing the Administrator's
decision whether or not to re-certify the WIPP facility.
Sec. 194.65 Notice of proposed rulemaking for modification or
revocation.
(a) If the Administrator determines that any changes in activities
or conditions pertaining to the disposal system depart significantly
from the most recent compliance application, the Agency will publish a
Notice of Proposed Rulemaking in the Federal Register announcing the
Administrator's proposed decision on modification or revocation, and
soliciting comment on the proposal.
(b) Any comments received on the notice will be made available for
inspection in the dockets established pursuant to Sec. 194.67.
Sec. 194.66 Final rule for modification or revocation.
(a) The Administrator will publish a Final Rule in the Federal
Register announcing the Administrator's decision on modification or
revocation.
(b) A document summarizing significant comments and issues arising
from comments received on the Notice of Proposed Rulemaking as well as
the Administrator's response to such significant comments and issues
will be prepared and will be made available for inspection in the
dockets established pursuant to Sec. 194.67.
Sec. 194.67 Dockets.
The Agency will establish and maintain dockets in the State of New
Mexico and Washington, DC. The dockets will consist of all relevant,
significant information received from outside parties and all
significant information considered by the Administrator in certifying
whether the WIPP facility will comply with the disposal regulations, in
certifying whether or not the WIPP facility continues to be in
compliance with the disposal regulations, and in determining whether
compliance certification should be modified, suspended or revoked.
[FR Doc. 96-2721 Filed 2-8-96; 8:45 am]
BILLING CODE 6560-50-P
Complete official Federal Register PDF
FR Doc. 96-2715 Removal of Federal Railroad Regulations Pursuant to Regulatory Reform
[Federal Register Volume 61, Number 28 (Friday, February 9, 1996)]
[Rules and Regulations]
[Pages 4937-4938]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-2715]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF TRANSPORTATION
Federal Railroad Administration
49 CFR Parts 251 and 258
[FRA Docket No. RRR-1, Notice No. 1]
RIN 2130-AB03
Removal of Federal Railroad Regulations Pursuant to Regulatory
Reform
AGENCY: Federal Railroad Administration (FRA), Department of
Transportation (DOT).
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: In connection with the President's Regulatory Reform
Initiative, the FRA has reviewed all of its exiting regulations. This
review identified regulations in 49 CFR Chapter II that are being
removed because they are obsolete or the authorization for them does
not currently exist. The FRA expects that this final rule will reduce
the administrative burden to government and industry, reduce government
printing costs, and provide a more concise and useful Title 49, Code of
Federal Regulations.
EFFECTIVE DATE: The rule becomes effective on March 11, 1996.
FOR FURTHER INFORMATION CONTACT: Elizabeth Sorrells, Attorney Advisor,
Office of Chief Counsel, FRA, 400 Seventh Street SW., Washington, DC
20590, (telephone: (202) 366-4782)).
SUPPLEMENTARY INFORMATION: On March 4, 1995, the President issued a
memorandum directing the heads of federal departments and agencies to
conduct a page-by-page review of all agency regulations now in force
and eliminate or revise those that are outdated or otherwise in need of
reform. FRA has conducted a page-by-page review of all of its
regulations and identified obsolete regulations for removal, as
follows:
49 CFR Part 251--Loans and Guarantees of Loans Under Rail Service
Passenger Act of 1970
This part is being removed because the authorities for it, 45
U.S.C. 602 (section 602 of the Rail Passenger Service Act of 1970) and
45 U.S.C. 621 (section 701 of the Rail Service Passenger Service Act of
1970) were initially repealed, respectively, on October 27, 1992 by
Pub. L. No. 102-533, sec. 7(c), 106 Stat. 3519 and on April 7, 1986, by
Pub. L. No. 99-272, sec. 4007(c), 100 Stat. 108, and again on July 5,
1995 by Pub. L. No. 103-272, the Codification of Certain U.S.
Department of Transportation Laws as Title 49, United States Code.
49 CFR Part 258--Regulations Governing Section 505 of the Railroad
Revitalization and Regulatory Reform Act of 1976, As Amended
This part is being removed because authorization for it has expired
and no reauthorization is anticipated.
Regulatory Impact
Executive Order 12866 and DOT Regulatory Policies
This final rule has been evaluated in accordance with existing
regulatory policies. The regulatory document is considered to be a
nonsignificant regulatory action under section 3(f) of Executive Order
12866 and does not require an assessment of costs and benefits under
section 6(a)(3) of that Order. It has not been reviewed by the Office
of Management and Budget under that Order. This rulemaking has been
reviewed under DOT Regulatory Policies and Procedures (44 FR 11034,
February 26, 1979) and found to be a nonsignificant rule.
In its regulatory analysis, FRA has determined that this rulemaking
presents no substantive issue which it could reasonably expect would
produce meaningful public comment since it is merely removing, pursuant
to Presidential directive, obsolete regulations, retention of which
could serve no useful purpose. Accordingly, pursuant to 5 U.S.C. 553
(c) and (d), the
[[Page 4938]]
Administrative Procedure Act, FRA finds good cause exists to publish
this as a final rule without opportunity for public comment, and to
make it effective on the date of publication.
Federalism
FRA has analyzed this rulemaking in accordance with the principles
and criteria contained in Executive Order 12612 and has determined that
this rule does not have sufficient implications for federalism to
warrant the preparation of a Federalism Assessment.
Regulatory Flexibility Act
The Regulatory Flexibility Act of 1980 (5 U.S.C. 601 et seq.)
requires a review of rules to assess their impact on small entities. In
reviewing the economic impact of the rule, FRA concluded that it will
not have any measureable impact on small entities. There are no direct
or indirect economic impacts for small units of government, businesses,
or other organizations. Therefore, it is certified that this rule will
not have a significant economic impact on a substantial number of small
entities under the provisions of the Regulatory Flexibility Act.
Paperwork Reduction Act
This rulemaking contains no reporting requirements that are subject
to OMB approval under 5 CFR part 1320, pursuant to the Paperwork
Reduction Act of 1980 (44 U.S.C. 3501 et seq.)
Environmental Assessment
This final rule meets the criteria that establish this as a non-
major action for environmental purposes.
List of Subjects
49 CFR Part 251
Loan programs--transportation, Railroads.
49 CFR Part 258
Grant programs--transportation, Railroads.
Accordingly, for the reasons set forth in the Preamble, under the
authority of 45 U.S.C. 602, 45 U.S.C. 621 and 49 U.S.C. 1651 FRA is
amending 49 CFR Ch. II by removing parts 251 and 258.
PARTS 251 AND 258--[REMOVED]
Issued in Washington, DC, on January 31, 1996.
Jolene M. Molitoris,
Administrator, Federal Railroad Administration.
[FR Doc. 96-2715 Filed 2-8-96; 8:45 am]
BILLING CODE 4910-06-M
Complete official Federal Register PDF
FR Doc. 96-2702 General HUD Program Requirements: Cross-Cutting Requirements
[Federal Register Volume 61, Number 28 (Friday, February 9, 1996)]
[Rules and Regulations]
[Pages 5198-5216]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-2702]
[[Page 5197]]
_______________________________________________________________________
Part IV
Department of Housing and Urban Development
_______________________________________________________________________
Office of the Secretary
_______________________________________________________________________
24 CFR Part 0, et al.
General HUD Program Requirements; Cross-Cutting Requirements; Final
Rule
Federal Register / Vol. 61, No. 28, Friday, February 9, 1996 / Rules
and Regulations
[[Page 5198]]
DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT
Office of the Secretary
24 CFR Parts 0, 4, 5, 8, 12, 15, 16, 17, 27, 28, 30, 35, 40, 51,
52, 91, 92, 100, 103, 104, 107, 109, 110, 111, 125, 135, 146, 200,
201, 203, 206, 213, 215, 219, 220, 221, 231, 232, 234, 235, 236,
237, 248, 260, 261, 265, 280, 290, 291, 511, 570, 572, 574, 576,
582, 583, 585, 590, 594, 597, 700, 750, 760, 791, 792, 799, 811,
813, 850, 880, 881, 882, 883, 884, 885, 886, 887, 889, 890, 899,
901, 904, 913, 941, 942, 945, 960, 961, 962, 963, 964, 965, 968,
999, 3280, 3282, and Chapters XI and XV
[Docket No. FR-3940-F-01]
RIN 2501-AC02
General HUD Program Requirements: Cross-Cutting Requirements
AGENCY: Office of the Secretary, HUD.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: To eliminate redundancy in several HUD program regulations
which repeat requirements that are applicable to two or more HUD
programs, this final rule establishes a new part 5 that will contain:
Definitions that are commonly found in many HUD program regulations;
the list of other Federal requirements that are generally applicable to
most HUD programs; and waiver authority (i.e., authority to waive
regulatory provisions). The consolidation of the above-noted provisions
in a single part will present uniformity, and assist program
participants in identifying those requirements that cut across several
of the HUD programs.
Furthermore, this final rule amends 24 CFR part 40 to conform to
HUD's recently published rule eliminating obsolete or unnecessary parts
and subparts from title 24 of the Code of Federal Regulations.
EFFECTIVE DATE: March 11, 1996.
FOR FURTHER INFORMATION CONTACT: Camille E. Acevedo, Assistant General
Counsel for Regulations, Office of General Counsel, Room 10276,
Department of Housing and Urban Development, 451 Seventh Street, SW,
Washington, DC 20410, telephone (202) 708-3055. Hearing- or speech-
impaired individuals may call HUD's TDD number (202) 708-9300 or 1-800-
877-8399 (Federal Information Relay Service TDD). (Other than the
``800'' number, these are not toll-free numbers.)
SUPPLEMENTARY INFORMATION:
I. Background.
A. Consolidation of HUD Program Requirements
President Clinton's March 4, 1995 memorandum, Regulatory
Reinvention, directed the heads of the Federal departments and agencies
to review all existing regulations and to eliminate those requirements
found to be obsolete or unnecessary. The department and agency chiefs
were further directed to revise other regulations to increase
flexibility and reduce regulatory burden.
HUD's page-by-page review evidenced that there are several
requirements that are applicable to several HUD funded programs. To
eliminate redundancy in the program regulations that repeat
requirements, and to assist program participants in identifying
requirements and procedures that are uniform in many HUD programs, this
final rule creates a new part 5 containing: (1) Definitions that are
used generally in HUD programs; (2) the list of other Federal
requirements; and (3) waiver authority (i.e., authority to waive
regulatory provisions). This final rule also amends HUD's program
regulations that contain these common definitions or Federal
requirements to remove these definitions and Federal requirements from
these individual regulations and provide a cross-reference to part 5.
Definitions or Federal requirements used only in a particular program,
or common definitions defined differently for a particular program,
will remain in the program regulations. The Department believes that
placing common definitions and those Federal requirements generally
applicable to several HUD programs in a new part 5 simplifies the
structure of HUD's regulations by removing duplicative regulations, and
also allows the user to determine which definitions are common to many
HUD programs and which Federal requirements are considered cross-
cutting requirements.
The general waiver provision established by this final rule permits
the Secretary of HUD, upon a finding of good cause, to waive any non-
statutory requirement in title 24. Currently, several program
regulations authorize waivers only if the Secretary determines that
application of the regulatory requirements will result in ``undue
hardship'' to program participants and have an ``adverse effect'' on
the purposes of the program. Although the waiver provision of part 5
uses a ``good cause'' standard, this final rule does not represent a
change in policy. ``Undue hardship'' and ``adverse effect'' are merely
subcategories of ``good cause.'' Accordingly, this final rule will not
alter the criteria the Secretary currently uses to make waiver
determinations.
B. Conforming Amendment to Part 40
On September 11, 1995 (60 FR 47260), HUD published a final rule
eliminating obsolete parts and codified guidance from title 24 of the
Code of Federal Regulations. Among the guidance eliminated by the
September 11, 1995 rule was appendix A to part 40, which codified the
Accessibility Standards for Publicly Owned Residential Structures.
Since the guidelines are easily obtainable elsewhere, codification in
title 24 was unnecessary. This final rule creates a new Sec. 40.7 which
informs readers where they may obtain a copy of the accessibility
guidelines.
C. Additional Consolidations To Be Included in Part 5
HUD intends future rulemakings that will amend part 5 to include
other program requirements that are found in several programs
regulations and that would benefit by having the requirements
consolidated and set forth in part 5.
II. Justification for Final Rulemaking
It is HUD's policy to publish rules for public comment before their
issuance for effect, in accordance with its own regulations on
rulemaking found at 24 CFR part 10. However, part 10 provides that
prior public procedure will be omitted if HUD determines that it is
``impracticable, unnecessary, or contrary to the public interest'' (24
CFR 10.1). HUD finds that in this case prior public comment is
unnecessary because the consolidation of frequently repeated
definitions and program requirements does not affect or establish
policy. This final rule does not establish or eliminate program
requirements. Rather, in order to eliminate redundancy, this rule
relocates these generally applicable requirements to a new part in
title 24 of the CFR.
III. Other Matters
A. Environmental Impact
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 implements 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 General Counsel, Department
of Housing and Urban
[[Page 5199]]
Development, Room 10276, 451 Seventh Street, SW, Washington, DC 20410.
B. 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 final rule will not have substantial direct effects
on States or their political subdivisions, or the relationship between
the Federal government and the States, or on the distribution of power
and responsibilities among the various levels of government.
Specifically, this rule merely consolidates requirements applicable to
all or most HUD programs in a single part. It effects no changes in the
current relationships between the Federal government, the States and
their political subdivisions in connection with these programs.
C. 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.
No significant change in existing HUD policies or programs will result
from promulgation of this rule, as those policies and programs relate
to family concerns.
D. Regulatory Flexibility Act
The Secretary, in accordance with the Regulatory Flexibility Act (5
U.S.C. 605(b)) has reviewed and approved this rule, and in so doing
certifies that this rule will not have a significant economic impact on
a substantial number of small entities. This final rule merely
establishes a new part for frequently repeated program requirements,
and will not have any meaningful economic impact on any entity.
List of Subjects
24 CFR Part 0
Administrative practice and procedure, Conflict of interests.
24 CFR Part 4
Administrative practice and procedure, Government employees, Grant
programs--housing and community development, Investigations, Loan
programs--housing and community development, Penalties, Reporting and
recordkeeping requirements.
24 CFR Part 5
Administrative practice and procedure.
24 CFR Part 8
Administrative practice and procedure, Civil rights, Equal
employment opportunity, Grant programs--housing and community
development, Individuals with disabilities, Loan programs--housing and
community development, Reporting and recordkeeping requirements.
24 CFR Part 12
Administrative practice and procedure, Grant programs--housing and
community development, Loan programs--housing and community
development, Reporting and recordkeeping requirements.
24 CFR Part 15
Classified information, Courts, Freedom of information, Government
employees, Reporting and recordkeeping requirements.
24 CFR Part 16
Privacy.
24 CFR Part 17
Administrative practice and procedure, Claims, Government
employees, Income taxes, Wages.
24 CFR Part 27
Administrative practice and procedure, Loan programs--housing and
community development.
24 CFR Part 28
Administrative practice and procedure, Claims, Fraud, Penalties.
24 CFR Part 30
Administrative practice and procedure, Grant programs--housing and
community development, Loan programs--housing and community
development, Mortgages, Penalties.
24 CFR Part 35
Grant programs--housing and community development, Lead poisoning,
Mortgage insurance, Rent subsidies, Reporting and recordkeeping
requirements.
24 CFR Part 40
Individuals with disabilities, Public housing, Reporting and
recordkeeping requirements.
24 CFR Part 51
Environmental protection, Airports, Hazardous substances, Housing
standards, Noise control.
24 CFR Part 52
Intergovernmental relations.
24 CFR Part 91
Aged, Grant programs--housing and community development, Homeless,
Individuals with disabilities, Low and moderate income housing,
Reporting and recordkeeping requirements.
24 CFR Part 92
Administrative practice and procedure, Grant programs--housing and
community development, Grant programs--Indians, Indians, Low and
moderate income housing, Manufactured homes, Rent subsidies, Reporting
and recordkeeping requirements.
24 CFR Part 100
Aged, Fair housing, Individuals with disabilities, Mortgages,
Reporting and recordkeeping requirements.
24 CFR Part 103
Administrative practice and procedure, Aged, Fair housing,
Individuals with disabilities, Intergovernmental relations,
Investigations, Mortgages, Penalties, Reporting and recordkeeping
requirements.
24 CFR Part 104
Administrative practice and procedure, Aged, Fair housing,
Individuals with disabilities, Mortgages, Penalties.
24 CFR Part 107
Administrative practice and procedure, Fair housing, Grant
programs--housing and community development, Loan programs--housing and
community development, Religious discrimination, Reporting and
recordkeeping requirements, Sex discrimination.
24 CFR Part 109
Administrative practice and procedure, Equal employment
opportunity, Government contracts, Housing, Reporting and recordkeeping
requirements.
24 CFR Part 110
Aged, Fair housing, Individuals with disabilities, Mortgages, Signs
and symbols.
24 CFR Part 111
Fair housing, Grant programs--housing and community development,
Reporting and recordkeeping requirements.
[[Page 5200]]
24 CFR Part 125
Fair housing, Grant programs--housing and community development,
Reporting and recordkeeping requirements.
24 CFR Part 135
Administrative practice and procedure, Community development, Equal
employment opportunity, Government contracts, Grant programs--housing
and community development, Housing, Loan programs--housing and
community development, Reporting and recordkeeping requirements, Small
businesses.
24 CFR Part 146
Administrative practice and procedure, Aged, Civil rights, Grant
programs--housing and community development, Loan programs--housing and
community development, Reporting and recordkeeping requirements.
24 CFR Part 200
Administrative practice and procedure, Claims, Equal employment
opportunity, Fair housing, Home improvement, Housing standards,
Incorporation by reference, Lead poisoning, Loan programs--housing and
community development, Minimum property standards, Mortgage insurance,
Organization and functions (Government agencies), Penalties, Reporting
and recordkeeping requirements, Social Security, Unemployment
compensation, Wages.
24 CFR Part 201
Health facilities, Historic preservation, Home improvement, Loan
programs--housing and community development, Manufactured homes,
Mortgage insurance, Reporting and recordkeeping requirements.
24 CFR Part 203
Hawaiian Natives, Home improvement, Indians--lands, Loan programs--
housing and community development, Mortgage insurance, Reporting and
recordkeeping requirements, Solar energy.
24 CFR Part 206
Aged, Condominiums, Loan programs--housing and community
development, Mortgage insurance, Reporting and recordkeeping
requirements.
24 CFR Part 213
Cooperatives, Mortgage insurance, Reporting and recordkeeping
requirements.
24 CFR Part 215
Grant programs--housing and community development, Rent subsidies,
Reporting and recordkeeping requirements.
24 CFR Part 219
Loan programs--housing and community development, Low and moderate
income housing, Reporting and recordkeeping requirements.
24 CFR Part 220
Home improvement, Loan programs--housing and community development,
Mortgage insurance, Reporting and recordkeeping requirements, Urban
renewal.
24 CFR Part 221
Low and moderate income housing, Mortgage insurance, Reporting and
recordkeeping requirements.
24 CFR Part 231
Aged, Mortgage insurance, Reporting and recordkeeping requirements.
24 CFR Part 232
Fire prevention, Health facilities, Loan programs--health, Loan
programs--housing and community development, Mortgage insurance,
Nursing homes, Reporting and recordkeeping requirements.
24 CFR Part 234
Condominiums, Mortgage insurance, Reporting and recordkeeping
requirements.
24 CFR Part 235
Condominiums, Cooperatives, Grant programs--housing and community
development, Low and moderate income housing, Mortgage insurance,
Reporting and recordkeeping requirements.
24 CFR Part 236
Grant programs--housing and community development, Low and moderate
income housing, Mortgage insurance, Rent subsidies, Reporting and
recordkeeping requirements.
24 CFR Part 237
Grant programs--housing and community development, Low and moderate
income housing, Mortgage insurance.
24 CFR Part 248
Intergovernmental relations, Loan programs--housing and community
development, Low and moderate income housing, Mortgage insurance,
Reporting and recordkeeping requirements.
24 CFR Part 260
Grant programs--housing and community development, Low and moderate
income housing.
24 CFR Part 261
Drug abuse, Drug traffic control, Grant programs--housing and
community development, Grant programs--low and moderate income housing,
Reporting and recordkeeping requirements.
24 CFR Part 265
Mortgage insurance.
24 CFR Part 280
Community development, Grant programs--housing and community
development, Loan programs--housing and community development, Low and
moderate income housing, Nonprofit organizations, Reporting and
recordkeeping requirements.
24 CFR Part 290
Low and moderate income housing, Mortgage insurance.
24 CFR Part 291
Community facilities, Conflict of interests, Homeless, Lead
poisoning, Low and moderate income housing, Mortgages, Reporting and
recordkeeping requirements, Surplus government property.
24 CFR Part 511
Administrative practice and procedure, Grant programs--housing and
community development, Lead poisoning, Low and moderate income housing,
Reporting and recordkeeping requirements, Technical assistance.
24 CFR Part 570
Administrative practice and procedure, American Samoa, Community
development block grants, Grant programs--education, Grant programs--
housing and community development, Guam, Indians, Lead poisoning, Loan
programs--housing and community development, Low and moderate income
housing, New communities, Northern Mariana Islands, Pacific Islands
Trust Territory, Pockets of poverty, Puerto Rico, Reporting and
recordkeeping requirements, Small cities, Student aid, Virgin Islands.
24 CFR Part 572
Condominiums, Cooperatives, Fair housing, Government property,
Grant programs--housing and community development, Low and moderate
income housing, Nonprofit organizations, Reporting and recordkeeping
requirements.
[[Page 5201]]
24 CFR Part 574
AIDS, Community facilities, Disabled, Emergency shelter, Grant
programs--health programs, Grant programs--housing and community
development, Grant programs--social programs, Homeless, Housing, Low
and moderate income housing, Nonprofit organizations, Rent subsidies,
Reporting and recordkeeping requirements, Technical assistance.
24 CFR Part 576
Community facilities, Emergency shelter grants, Grant programs--
housing and community development, Grant programs--social programs,
Homeless, Reporting and recordkeeping requirements.
24 CFR Part 582
Homeless, Rent subsidies, Reporting and recordkeeping requirements,
Supportive housing programs--housing and community development,
Supportive services.
24 CFR Part 583
Homeless, Rent subsidies, Reporting and recordkeeping requirements,
Supportive housing programs--housing and community development,
Supportive services.
24 CFR Part 585
Grant programs--housing and community development, Homeless, Low
and very low-income families, Reporting and recordkeeping requirements.
24 CFR Part 590
Government property, Housing, Intergovernmental relations, Low and
moderate income housing, Reporting and recordkeeping requirements,
Urban renewal.
24 CFR Part 594
Community development, Grant programs--housing and community
development, Reporting and recordkeeping requirements, Urban renewal.
24 CFR Part 597
Community development, Empowerment zones, Enterprise communities,
Economic development, Housing, Indians, Intergovernmental relations,
Reporting and recordkeeping requirements, Urban renewal.
24 CFR Part 700
Aged, Grant programs--housing and community development,
Individuals with disabilities, Low and moderate income housing,
Nutrition, Public housing, Rent subsidies, Reporting and recordkeeping
requirements, Supportive services.
24 CFR Part 750
Grant programs--housing and community development, Indians,
Intergovernmental relations, Loan programs--housing and community
development, Public housing, Rent subsidies, Reporting and
recordkeeping requirements, Social Security.
24 CFR Part 760
Grant programs--housing and community development, Income
verification procedures, Indians, Intergovernmental relations, Loan
programs--housing and community development, Penalties, Public housing,
Rent subsidies, Reporting and recordkeeping requirements, Wages.
24 CFR Part 791
Grant programs--housing and community development, Indians,
Intergovernmental relations, Public housing, Rent subsidies.
24 CFR Part 792
Fraud, Grant programs--housing and community development, Rent
subsidies, Reporting and recordkeeping requirements.
24 CFR Part 799
Grant programs--housing and community development, Indians,
Intergovernmental relations, Public housing, Rent subsidies.
24 CFR Part 811
Public housing, Securities, Taxes.
24 CFR Part 813
Grant programs--housing and community development, Rent subsidies,
Reporting and recordkeeping requirements, Utilities.
24 CFR Part 850
Grant programs--housing and community development, Low and moderate
income housing, Reporting and recordkeeping requirements.
24 CFR Part 880
Grant programs--housing and community development, Rent subsidies,
Reporting and recordkeeping requirements.
24 CFR Part 881
Grant programs--housing and community development, Rent subsidies,
Reporting and recordkeeping requirements.
24 CFR Part 882
Grant programs--housing and community development, Homeless, Lead
poisoning, Manufactured homes, Rent subsidies, Reporting and
recordkeeping requirements.
24 CFR Part 883
Grant programs--housing and community development, Rent subsidies,
Reporting and recordkeeping requirements.
24 CFR Part 884
Grant programs--housing and community development, Rent subsidies,
Reporting and recordkeeping requirements, Rural areas.
24 CFR Part 885
Aged, Individuals with disabilities, Loan programs--housing and
community development, Low and moderate income housing, Reporting and
recordkeeping requirements.
24 CFR Part 886
Grant programs--housing and community development, Lead poisoning,
Rent subsidies, Reporting and recordkeeping requirements.
24 CFR Part 887
Grant programs--housing and community development, Rent subsidies,
Reporting and recordkeeping requirements.
24 CFR Part 889
Aged, Capital advance programs, Grant programs--housing and
community development, Loan programs--housing and community
development, Low and moderate income housing, Rent subsidies, Reporting
and recordkeeping requirements.
24 CFR Part 890
Civil rights, Grant programs--housing and community development,
Individuals with disabilities, Loan programs--housing and community
development, Low and moderate income housing, Mental health programs,
Reporting and recordkeeping requirements.
24 CFR Part 899
Grant programs--housing and community development, Low and moderate
income housing, Rent subsidies.
24 CFR Parts 901
Administrative practice and procedure, Public housing, Reporting
and recordkeeping requirements.
24 CFR Part 904
Grant programs--housing and community development, Loan
[[Page 5202]]
programs--housing and community development, Public housing.
24 CFR Part 913
Grant programs--housing and community development, Public housing,
Reporting and recordkeeping requirements.
24 CFR Part 941
Grant programs--housing and community development, Loan programs--
housing and community development, Public housing.
24 CFR Part 942
Aged, Grant programs--housing and community development,
Individuals with disabilities, Pets, Public housing, Reporting and
recordkeeping requirements.
24 CFR Part 945
Aged, Grant programs--housing and community development,
Individuals with disabilities, Public housing, Reporting and
recordkeeping requirements.
24 CFR Part 960
Aged, Grant programs--housing and community development,
Individuals with disabilities, Public housing.
24 CFR Part 961
Drug abuse, Drug traffic control, Grant programs--housing and
community development, Grant programs--Indians, Grant programs--low and
moderate income housing, Indians, Public housing, Reporting and
recordkeeping requirements.
24 CFR Part 962
Grant programs--housing and community development, Public housing,
Reporting and recordkeeping requirements.
24 CFR Part 963
Grant programs--housing and community development, Public housing,
Reporting and recordkeeping requirements.
24 CFR Part 964
Grant programs--housing and community development, Public housing,
Reporting and recordkeeping requirements.
24 CFR Part 965
Energy conservation, Government procurement, Grant programs--
housing and community development, Lead poisoning, Loan programs--
housing and community development, Public housing, Reporting and
recordkeeping requirements, Utilities.
24 CFR Part 968
Grant programs--housing and community development, Indians, Loan
programs--housing and community development, Public housing, Reporting
and recordkeeping requirements.
24 CFR Part 999
Grant programs--housing and community development, Indians, Public
housing.
24 CFR Part 3280
Fire prevention, Housing standards, Manufactured homes.
24 CFR Part 3282
Administrative practice and procedure, Consumer protection,
Intergovernmental relations, Investigations, Manufactured homes,
Reporting and recordkeeping requirements.
Accordingly, under the authority 42 U.S.C. 3535(d), in title 24 of
the Code of Federal Regulations, subtitle B, chapters I, II, V, VII,
VIII, IX, and XX are amended, and chapters XI and XV are removed, as
follows:
PART 0--STANDARDS OF CONDUCT
1. The authority citation for part 0 is revised to read as follows:
Authority: 5 U.S.C. 301; 18 U.S.C. 201-212; E.O. 11222, E.O.
12674, 3 CFR, 1964-1965 Comp., p. 306; 5 CFR 735.101-412.
Subpart A--General Provisions
Sec. 0.735-102 [Amended]
2. Section 0.735-102 is amended by removing the definition of
``Department.''
Sec. 0.735-106 [Removed]
3. Section 0.735-106 is removed.
PART 4--PROHIBITION OF ADVANCE DISCLOSURE OF FUNDING DECISIONS
4. The authority citation for part 4 continues to read as follows:
Authority: 42 U.S.C. 3535(d) and 3537a.
Subpart A--General Provisions
5. Section 4.5 is amended by removing the definitions of
``Department or HUD'', ``NOFA'', and ``Secretary'', and adding
introductory text to read as follows:
Sec. 4.5 Definitions.
The terms Department, HUD, NOFA, and Secretary are defined in 24
CFR part 5.
* * * * *
6. A new part 5 is added to read as follows:
PART 5--GENERAL HUD PROGRAM REQUIREMENTS; WAIVERS
Subpart A--Generally Applicable Definitions and Federal Requirements;
Waivers
Sec.
5.100 Definitions.
5.105 Other Federal requirements.
5.110 Waivers.
Authority: 42 U.S.C. 3535(d).
Subpart A--Generally Applicable Definitions and Federal
Requirements; Waivers
Sec. 5.100 Definitions.
The following definitions apply as noted in the respective program
regulations:
1937 Act means the United States Housing Act of 1937 (42 U.S.C.
1437 et seq.)
ADA means the Americans with Disabilities Act of 1990 (42 U.S.C.
12101 et seq.).
ALJ means an administrative law judge appointed to HUD pursuant to
5 U.S.C. 3105 or detailed to HUD pursuant to 5 U.S.C. 3344.
Department means the Department of Housing and Urban Development.
Elderly Person means an individual who is at least 62 years of age.
Fair Housing Act means title VIII of the Civil Rights Act of 1968,
as amended by the Fair Housing Amendments Act of 1988 (42 U.S.C. 3601
et seq.).
Fair Market Rent (FMR) means the rent that would be required to be
paid in the particular housing market area in order to obtain privately
owned, decent, safe and sanitary rental housing of modest (non-luxury)
nature with suitable amenities. This Fair Market Rent includes
utilities (except telephone). Separate Fair Market Rents will be
established by HUD for dwelling units of varying sizes (number of
bedrooms) and will be published in the Federal Register in accordance
with part 888 of this title.
General Counsel means the General Counsel of HUD.
Grantee means the person or legal entity to which a grant is
awarded and that is accountable for the use of the funds provided.
HUD means the same as Department.
Indian means a person who is recognized as being an Indian or
Alaska Native by an Indian Tribe, the Federal government, or any State.
Indian Housing Authority (IHA) means an entity that:
(1) Is authorized to engage or assist in the development or
operation of low-income housing for Indians under the 1937 Act; and
[[Page 5203]]
(2) Is established:
(i) By exercise of the power of self-government of an Indian Tribe
independent of State law; or
(ii) By operation of State law providing specifically for housing
authorities for Indians, including regional housing authorities in the
State of Alaska.
NAHA means the Cranston-Gonzalez National Affordable Housing Act
(42 U.S.C. 12701 et seq.).
NEPA means the National Environmental Policy Act of 1969 (42 U.S.C.
4321).
NOFA means Notice of Funding Availability.
OMB means the Office of Management and Budget.
Organizational Unit means the jurisdictional area of each Assistant
Secretary, and each office head or field administrator reporting
directly to the Secretary.
Public Housing Agency (PHA) means any State, county, municipality,
or other governmental entity or public body, or agency or
instrumentality of these entities, that is authorized to engage or
assist in the development or operation of low-income housing under the
1937 Act.
Section 8 means section 8 of the United States Housing Act of 1937
(42 U.S.C. 1437f).
Secretary means the Secretary of Housing and Urban Development.
URA means the Uniform Relocation Assistance and Real Property
Acquisition Policies Act of 1970 (42 U.S.C. 4201-4655).
Sec. 5.105 Other Federal requirements.
The following Federal requirements apply as noted in the respective
program regulations:
(a) Nondiscrimination and equal opportunity. The Fair Housing Act
(42 U.S.C. 3601-19) and implementing regulations at 24 CFR part 100 et
seq.; Executive Order 11063, as amended by Executive Order 12259 (3
CFR, 1959-1963 Comp., p. 652 and 3 CFR, 1980 Comp., p. 307) (Equal
Opportunity in Housing Programs) and implementing regulations at 24 CFR
part 107; title VI of the Civil Rights Act of 1964 (42 U.S.C. 2000d-
2000d-4) (Nondiscrimination in Federally Assisted Programs) and
implementing regulations at 24 CFR part 1; the Age Discrimination Act
of 1975 (42 U.S.C. 6101-6107) and implementing regulations at 24 CFR
part 146; section 504 of the Rehabilitation Act of 1973 (29 U.S.C. 794)
and implementing regulations at 24 CFR part 8; section 3 of the Housing
and Urban Development Act of 1968 (12 U.S.C. 1701u) and implementing
regulations at 24 CFR part 135; Executive Order 11246, as amended by
Executive Orders 11375, 11478, 12086, and 12107 (3 CFR, 1964-1965
Comp., p. 339; 3 CFR, 1966-1970 Comp., p. 684; 3 CFR, 1966-1970 Comp.,
p. 803; 3 CFR, 1978 Comp., p.' 230; and 3 CFR, 1978 Comp., p. 264,
respectively) (Equal Employment Opportunity Programs) and implementing
regulations at 41 CFR chapter 60; Executive Order 11625, as amended by
Executive Order 12007 (3 CFR, 1971-1975 Comp., p. 616 and 3 CFR, 1977
Comp., p. 139) (Minority Business Enterprises); Executive Order 12432
(3 CFR, 1983 Comp., p. 198) (Minority Business Enterprise Development);
and Executive Order 12138, as amended by Executive Order 12608 (3 CFR,
1977 Comp., p. 393 and 3 CFR, 1987 Comp., p. 245) (Women's Business
Enterprise).
(b) Disclosure requirements. The disclosure requirements and
prohibitions of 31 U.S.C. 1352 and implementing regulations at 24 CFR
part 87; and the requirements for funding competitions established by
the Department of Housing and Urban Development Reform Act of 1989 (42
U.S.C. 3531 et seq.).
(c) Debarred, suspended or ineligible contractors. The prohibitions
at 24 CFR part 24 on the use of debarred, suspended or ineligible
contractors.
(d) Drug-Free Workplace. The Drug-Free Workplace Act of 1988 (41
U.S.C. 701 et seq.) and HUD's implementing regulations at 24 CFR part
24.
Sec. 5.110 Waivers.
Upon determination of good cause, the Secretary may, subject to
statutory limitations, waive any provision of this title and delegate
this authority in accordance with section 106 of the Department of
Housing and Urban Development Reform Act of 1989 (42 U.S.C. 3535(q)).
PART 8--NONDISCRIMINATION BASED ON HANDICAP IN FEDERALLY ASSISTED
PROGRAMS AND ACTIVITIES OF THE DEPARTMENT OF HOUSING AND URBAN
DEVELOPMENT
7. The authority citation for part 8 is revised to read as follows:
Authority: 29 U.S.C. 794; 42 U.S.C. 3535(d) and 5309.
Subpart C--Program Accessibility
8. Section 8.32 is amended by revising paragraph (a) to read as
follows:
Sec. 8.32 Accessibility standards.
(a) Effective as of July 11, 1988, design, construction, or
alteration of buildings in conformance with sections 3-8 of the Uniform
Federal Accessibility Standards (UFAS) shall be deemed to comply with
the requirements of Secs. 8.21, 8.22, 8.23, and 8.25 with respect to
those buildings. Departures from particular technical and scoping
requirements of the UFAS by the use of other methods are permitted
where substantially equivalent or greater access to and usability of
the building is provided. The alteration of housing facilities shall
also be in conformance with additional scoping requirements contained
in this part. Persons interested in obtaining a copy of the UFAS are
directed to Sec. 40.7 of this title.
* * * * *
PART 12--ACCOUNTABILITY IN THE PROVISION OF HUD ASSISTANCE
9. The authority citation for part 12 is revised to read as
follows:
Authority: 42 U.S.C. 3535(d) and 3545.
Subpart A--General
10. Section 12.3 is amended by removing the definitions of
``Indian'', ``Indian Housing Authority'', ``HUD or Department'', and
``Public housing agency'', and adding introductory text to read as
follows:
Sec. 12.3 Definitions.
The terms Department, HUD, Indian, Indian Housing Authority (IHA),
and Public Housing Agency (PHA) are defined in 24 CFR part 5.
* * * * *
PART 15--TESTIMONY, PRODUCTION AND DISCLOSURE OF MATERIAL OR
INFORMATION BY HUD EMPLOYEES
11. The authority citation for part 15 is revised to read as
follows:
Authority: 5 U.S.C. 552; 42 U.S.C. 3535(d).
Subpart A--Purpose and Policy
12. Section 15.1 is amended by removing the definitions of
``Department'', ``Secretary'', and ``Organizational unit'', and adding
introductory text to read as follows:
Sec. 15.1 Definitions.
The terms Department, Secretary, and Organizational unit are
defined in 24 CFR part 5.
* * * * *
[[Page 5204]]
Subpart I--Testimony of Employees of the Department in Legal
Proceedings
Sec. 15.86 [Removed]
13. Section 15.86 is removed.
PART 16--IMPLEMENTATION OF THE PRIVACY ACT OF 1974
14. The authority citation for part 16 continues to read as
follows:
Authority: 5 U.S.C. 552(a); 42 U.S.C. 3535(d).
Sec. 16.2 [Amended]
15. Section 16.2 is amended by removing paragraph (b)(4) and
redesignating paragraphs (b)(5) through (b)(8) as paragraphs (b)(4)
through (b)(7).
PART 17--ADMINISTRATIVE CLAIMS
16. The authority citation for subpart A of part 17 is revised to
read as follows:
Authority: 5 U.S.C. 5514; 28 U.S.C. 2672; 31 U.S.C. 3711, 3716-
3718, 3721; 42 U.S.C. 3535(d).
Subpart A--Claims Against Government Under Federal Tort Claims Act
17. Section 17.1 is amended by revising paragraph (c) to read as
follows:
Sec. 17.1 Scope; definitions.
* * * * *
(c) The terms Department and Organizational unit are defined in 24
CFR part 5.
PART 27--NONJUDICIAL FORECLOSURE OF MULTIFAMILY MORTGAGES
18. The authority citation for part 27 is revised to read as
follows:
Authority: 12 U.S.C. 3711(5), 3717; 42 U.S.C. 3535(d).
Subpart A--General
19. Section 27.3 is amended by removing the definitions of
``General Counsel'' and ``Secretary'', and revising the introductory
text to read as follows:
Sec. 27.3 Definitions.
The terms General Counsel and Secretary are defined in 24 CFR part
5.
* * * * *
PART 28--IMPLEMENTATION OF THE PROGRAM FRAUD CIVIL REMEDIES ACT OF
1986
20. The authority citation for part 28 is revised to read as
follows:
Authority: 31 U.S.C. 3801; 42 U.S.C. 3535(d).
21. Section 28.3 is amended by removing the definitions of ``ALJ''
and ``HUD'', and adding introductory text to read as follows:
Sec. 28.3 Definitions.
The terms ALJ and HUD are defined in 24 CFR part 5.
* * * * *
PART 30--CIVIL MONEY PENALTIES: CERTAIN PROHIBITED CONDUCT
22. The authority citation for part 30 is revised to read as
follows:
Authority: 12 U.S.C. 1701q-1, 1703, 1723i, 1735f-14, 1735f-15;
15 U.S.C. 1717a; 42 U.S.C. 3535(d).
Subpart A--General Provisions
23. Section 30.10 is amended by removing the definitions of
``ALJ'', ``Department or HUD'', and ``Secretary'', and revising the
introductory text to read as follows:
Sec. 30.10 Definitions.
Because this part is primarily procedural, terms not defined in
this section shall have the meanings given them in relevant program
regulations. In the case of new responsibilities and new terminology
established by the Reform Act, comprehensive definitions will be found
in 24 CFR part 4 (Prohibition of Advance Disclosure of Funding
Decisions) and 24 CFR part 12 (Accountability in the Provision of HUD
Assistance). The terms ALJ, Department, HUD, and Secretary are defined
in 24 CFR part 5.
* * * * *
PART 35--LEAD-BASED PAINT POISONING PREVENTION IN CERTAIN
RESIDENTIAL STRUCTURES
24. The authority for part 35 is revised to read as follows:
Authority: 42 U.S.C. 3535(d), 4821-4846).
Subpart A--Notification to Purchasers and Tenants of HUD-Associated
Housing Constructed Prior to 1978 of the Hazards of Lead-Based
Paint Poisoning
Sec. 35.3 [Amended]
25. Section 35.3 is amended by removing the definition of
``Department of HUD.''
Subpart G--[Removed]
26. Subpart G, consisting of Sec. 35.70, is removed.
PART 40--ACCESSIBILITY STANDARDS FOR DESIGN, CONSTRUCTION, AND
ALTERATION OF PUBLICLY OWNED RESIDENTIAL STRUCTURES
27. The authority citation for part 40 is revised to read as
follows:
Authority: 42 U.S.C. 3535(d), 4153.
Sec. 40.5 [Removed]
28. Section 40.5 is removed and reserved.
29. A new Sec. 40.7 is added to read as follows:
Sec. 40.7 Availability of Accessibility Standards.
Copies of the Uniform Federal Accessibility Standards are available
from the Office of Fair Housing and Equal Opportunity, U.S. Department
of Housing and Urban Development, Room 5230, 451 Seventh Street, SW.,
Washington, DC 20410, telephone (202) 755-5404 (this is not a toll-free
number). Hearing or speech-impaired individuals may call HUD's TDD
number (202) 708-0113 or 1-800-877-8399 (Federal Information Relay
Service TDD). (Other than the ``800'' number, these are not toll-free
numbers.)
PART 51--ENVIRONMENTAL CRITERIA AND STANDARDS
30. The authority citation for subpart C of part 51 is revised to
read as follows:
Authority: 42 U.S.C. 3535(d).
Subpart C--Siting of HUD-Assisted Projects Near Hazardous
Operations Handling Conventional Fuels or Chemicals of an Explosive
or Flammable Nature
31. Section 51.201 is amended by removing the definitions of
``Department'' and ``Secretary'', and adding introductory text to read
as follows:
Sec. 51.201 Definitions.
The terms Department and Secretary are defined in 24 CFR part 5.
* * * * *
PART 52--INTERGOVERNMENTAL REVIEW OF DEPARTMENT OF HOUSING AND
URBAN DEVELOPMENT PROGRAMS AND ACTIVITIES
32. The authority citation for part 52 is revised to read as
follows:
Authority: 31 U.S.C. 6506; 42 U.S.C. 3334, 3535(d).
[[Page 5205]]
Sec. 52.2 [Amended]
33. Section 52.2 is amended by removing the definition of
``Department.''
Sec. 52.13 [Removed]
34. Section 52.13 is removed.
PART 91--CONSOLIDATED SUBMISSION FOR COMMUNITY PLANNING AND
DEVELOPMENT PROGRAMS
35. The authority citation for part 91 continues to read as
follows:
Authority: 42 U.S.C. 3535(d), 3601-3619, 5301-5315, 11331-11388,
12701-12711, 12741-12756, and 12901-12912.
Subpart A--General
36. Section 91.5 is amended by removing the definitions of
``Elderly person'' and ``HUD'', and adding introductory text to read as
follows:
Sec. 91.5 Definitions.
The terms Elderly person and HUD are defined in 24 CFR part 5.
* * * * *
PART 92--HOME INVESTMENT PARTNERSHIPS PROGRAM
37. The authority citation for part 92 is revised to read as
follows:
Authority: 42 U.S.C. 3535(d), 12701-12839.
Subpart A--General
38. Section 92.2 is amended by removing the definitions of ``HUD'',
``Indian Housing Authority'', ``Public housing agency (PHA)'', and
``Secretary'', and adding introductory text to read as follows:
Sec. 92.2 Definitions.
The terms HUD, Indian Housing Authority (IHA), Public Housing
Agency (PHA), and Secretary are defined in 24 CFR part 5.
* * * * *
Sec. 92.3 [Removed]
39. Section 92.3 is removed and reserved.
Subpart H--Other Federal Requirements
40. Section 92.350 is amended by revising paragraph (a) to read as
follows:
Sec. 92.350 Equal opportunity and fair housing.
(a) The Federal requirements set forth in 24 CFR part 5 apply to
participants in the HOME program.
* * * * *
Sec. 92.357 [Removed]
41. Section 92.357 is removed and reserved.
PART 100--DISCRIMINATORY CONDUCT UNDER THE FAIR HOUSING ACT
42. The authority citation for part 100 is revised to read as
follows:
Authority: 42 U.S.C. 3535(d), 3600-3620.
Subpart A--General
43. Section 100.20 is amended by removing the definitions of
``Department'', ``Fair Housing Act'', and ``Secretary'', and revising
the introductory text to read as follows:
Sec. 100.20 Definitions.
The terms Department, Fair Housing Act, and Secretary are defined
in 24 CFR part 5.
* * * * *
PART 103--FAIR HOUSING--COMPLAINT PROCESSING
44. The authority citation for part 103 is revised to read as
follows:
Authority: 42 U.S.C. 3535(d), 3601-3619.
Subpart A--Purpose and Definitions
45. Section 103.9 is amended by removing the definitions of ``Fair
Housing Act'', ``General Counsel'', and ``HUD'', and revising the
introductory text to read as follows:
Sec. 103.9 Definitions.
The terms Fair Housing Act, General Counsel, and HUD are defined in
24 CFR part 5.
* * * * *
PART 104--ADMINISTRATIVE PROCEEDINGS UNDER SECTION 812 OF THE FAIR
HOUSING ACT
46. The authority citation for part 104 is revised to read as
follows:
Authority: 42 U.S.C. 3535(d), 3600-3620.
Subpart A--General Information
47. Section 104.20 is amended by removing the definitions of ``Fair
Housing Act'', ``General Counsel'', and ``HUD'', and adding
introductory text to read as follows:
Sec. 104.20 Definitions.
The terms Fair Housing Act, General Counsel, and HUD are defined in
24 CFR part 5.
* * * * *
PART 107--NONDISCRIMINATION AND EQUAL OPPORTUNITY IN HOUSING UNDER
EXECUTIVE ORDER 11063
48-50. The authority citation for part 107 is revised to read as
follows:
Authority: 42 U.S.C. 3535(d); E.O. 11063, 27 FR 11527, 3 CFR,
1958-1963 Comp., p. 652; E.O. 12892, 59 FR 2939, 3 CFR, 1994 Comp.,
p. 849.
51. Section 107.15 is amended by:
a. Revising paragraph (a);
b. Removing paragraph (b); and
c. Redesignating paragraphs (c) through (g) as paragraphs (b)
through (f) to read as follows:
Sec. 107.15 Definitions.
(a) Department and Secretary are defined in 24 CFR part 5.
* * * * *
PART 109--FAIR HOUSING ADVERTISING
52. The authority citation for part 109 is revised to read as
follows:
Authority: 42 U.S.C. 3535(d), 3600-3620.
53. Section 109.15 is amended by revising paragraph (b) to read as
follows:
Sec. 109.15 Definitions.
* * * * *
(b) General Counsel is defined in 24 CFR part 5.
* * * * *
PART 110--FAIR HOUSING POSTER
54. The authority citation for part 110 is revised to read as
follows:
Authority: 42 U.S.C. 3535(d), 3600-3620.
Subpart A--Purpose and Definitions
55. Section 110.5 is amended by:
a. Revising paragraph (a);
b. Removing paragraph (f); and
c. Redesignating paragraphs (g) through (i) as paragraphs (f)
through (h) to read as follows:
Sec. 110.5 Definitions.
(a) The terms Department and Secretary are defined in 24 CFR part
5.
* * * * *
PART 111--FAIR HOUSING ASSISTANCE PROGRAM
56. The authority citation for part 111 is revised to read as
follows:
Authority: 42 U.S.C. 3535(d), 3600-3620.
57. Section 111.101 is amended by removing the definitions of
``HUD'' and ``NOFA'', and revising the introductory text to read as
follows:
[[Page 5206]]
Sec. 111.101 Definitions.
The terms HUD and NOFA are defined in 24 CFR part 5.
* * * * *
PART 125--FAIR HOUSING INITIATIVES PROGRAM
58. The authority citation for part 125 is revised to read as
follows:
Authority: 42 U.S.C. 3535(d), 3616 note.
Sec. 125.103 [Amended]
59. Section 125.103 is amended by removing the definition of
``Department.''
PART 135--ECONOMIC OPPORTUNITIES FOR LOW- AND VERY LOW-INCOME
PERSONS
60-62. The authority citation for part 135 is revised to read as
follows:
Authority: 12 U.S.C. 1701u; 42 U.S.C. 3535(d).
Subpart A--General Provisions
63. Section 135.5 is amended by removing the definitions of
``Department or HUD'', ``Indian housing authority (IHA)'', ``Public
housing agency (PHA)'', and ``Secretary'', and revising the
introductory text to read as follows:
Sec. 135.5 Definitions.
The terms Department, HUD, Indian housing authority (IHA), Public
housing agency (PHA), and Secretary are defined in 24 CFR part 5.
* * * * *
PART 146--NONDISCRIMINATION ON THE BASIS OF AGE IN HUD PROGRAMS OR
ACTIVITIES RECEIVING FEDERAL FINANCIAL ASSISTANCE
64. The authority citation for part 146 is revised to read as
follows:
Authority: 42 U.S.C. 3535(d) and 6103.
Subpart A--General
65. Section 146.7 is amended by removing the definitions of ``HUD''
and ``Secretary'', and revising the introductory text to read as
follows:
Sec. 146.7 Definitions.
The terms HUD and Secretary are defined in 24 CFR part 5.
* * * * *
PART 200--INTRODUCTION
66. The authority citation for part 200 continues to read as
follows:
Authority: 12 U.S.C. 1701-1715z-18; 42 U.S.C. 1436a and 3535(d).
Subpart I--Nondiscrimination and Fair Housing
67. Section 200.300 is revised to read as follows:
Sec. 200.300 Nondiscrimination and fair housing policy.
The regulations in this subpart are prescribed pursuant to:
(a) The nondiscrimination and fair housing requirements set forth
in 24 CFR part 5; and
(b) The affirmative fair housing marketing requirements in 24 CFR
part 200, subpart M and part 108.
Subpart T--Disclosure and Verification of Social Security Numbers
and Employer Identification Numbers by Applicants and Participants
in Assisted Mortgage and Loan Insurance and Related Programs
68. Section 200.1005 is amended by removing the definitions of
``HUD or Department'' and ``PHA'', and revising the introductory text
to read as follows:
Sec. 200.1005 Definitions.
The terms Department, HUD, and Public Housing Agency (PHA) are
defined in 24 CFR part 5. For purposes of this subpart, the term Public
Housing Agency (PHA) includes an Indian Housing Authority.
* * * * *
Subpart V--Procedures for Obtaining Wage and Claim Information
About Applicants and Participants in HUD's Assisted Mortgage and
Loan Insurance and Related Programs From State Wage Information
Collection Agencies (SWICAs)
Sec. 200.1205 [Amended]
69. Section 200.1205 is amended by removing the definition of
``HUD.''
PART 201--TITLE I PROPERTY IMPROVEMENT AND MANUFACTURED HOME LOANS
70. The authority citation for part 201 is revised to read as
follows:
Authority: 12 U.S.C. 1703; 42 U.S.C. 1436a and 3535(d).
Subpart A--General
Sec. 201.2 [Amended]
71. Section 201.2 is amended by removing paragraph (ff) and
redesignating paragraphs (gg) through (mm) as paragraphs (ff) through
(ll).
Sec. 201.5 [Amended]
72. Section 201.5 is amended by removing paragraph (a) and removing
the designation of paragraph (b).
PART 203--SINGLE FAMILY MORTGAGE INSURANCE
73. The authority citation for part 203 continues to read as
follows:
Authority: 12 U.S.C. 1709, 1710, 1715b, and 1715u; 42 U.S.C.
3535(d).
In addition, subpart C is also issued under 12 U.S.C. 1715u.
Subpart A--Eligibility Requirements and Underwriting Procedures
Sec. 203.248 [Removed]
74. Section 203.248 and the undesignated center heading preceding
it are removed.
PART 206--HOME EQUITY CONVERSION MORTGAGE INSURANCE
75. The authority citation for part 206 is revised to read as
follows:
Authority: 12 U.S.C. 1715b, 1715z-1720; 42 U.S.C. 3535(d).
Subpart A--General
Sec. 206.5 [Removed]
76. Section 206.5 is removed.
PART 213--COOPERATIVE HOUSING MORTGAGE INSURANCE
77. The authority citation for part 213 continues to read as
follows:
Authority: 12 U.S.C. 1715b, 1715e; 42 U.S.C. 3535(d).
Subpart C--Eligibility Requirements--Individual Properties Released
From Project Mortgage
Sec. 213.748 [Removed]
78. Section 213.748 is removed.
PART 215--RENT SUPPLEMENT PAYMENTS
79. The authority citation for part 215 continues to read as
follows:
Authority: 12 U.S.C. 1701s; 42 U.S.C. 3535(d).
80. Section 215.1 is amended by revising the definition of
``Elderly person'' to read as follows:
Sec. 215.1 Definitions.
* * * * *
Elderly person is defined in 24 CFR part 5.
* * * * *
PART 219--FLEXIBLE SUBSIDY PROGRAM FOR TROUBLED PROJECTS
81. The authority citation for part 219 continues to read as
follows:
[[Page 5207]]
Authority: 12 U.S.C. 1715z-1a; 42 U.S.C. 3535(d).
Subpart A--General Provisions
Sec. 219.130 [Removed]
82. Section 219.130 is removed.
PART 220--MORTGAGE INSURANCE AND INSURED IMPROVEMENT LOANS FOR
URBAN RENEWAL AND CONCENTRATED DEVELOPMENT AREAS
83. The authority citation for part 220 continues to read as
follows:
Authority: 12 U.S.C. 1713, 1715b, and 1715k; 42 U.S.C. 3535(d).
Subpart A--Eligibility Requirements--Homes
Sec. 220.248 [Removed]
84. Section 220.248 and the undesignated center heading preceding
it are removed.
PART 221--LOW COST AND MODERATE INCOME MORTGAGE INSURANCE
85. The authority citation for part 221 is revised to read as
follows:
Authority: 12 U.S.C. 1707(a), 1715b and 1751l; 42 U.S.C.
3535(b).
Subpart A--Eligibility Requirements--Low Cost Homes
Sec. 221.248 [Removed]
86. Section 221.248 and the undesignated center heading preceding
it are removed.
PART 231--HOUSING MORTGAGE INSURANCE FOR THE ELDERLY
87. The authority citation for part 231 continues to read as
follows:
Authority: 12 U.S.C. 1715b and 1715v; 42 U.S.C. 3535(d).
Subpart A--Eligibility Requirements
88. Section 231.2 is amended by revising paragraph (c) to read as
follows:
Sec. 231.2 Definitions.
* * * * *
(c) Elderly person is defined in 24 CFR part 5.
* * * * *
PART 232--MORTGAGE INSURANCE FOR NURSING HOMES, INTERMEDIATE CARE
FACILITIES, BOARD AND CARE HOMES, AND ASSISTED LIVING FACILITIES
89. The authority citation for part 232 continues to read as
follows:
Authority: 12 U.S.C. 1715b, 1715w, and 1715z(9); 42 U.S.C.
3535(d).
Subpart A--Eligibility Requirements
90. Section 232.1 is amended by revising paragraph (n) to read as
follows:
Sec. 232.1 Definitions.
* * * * *
(n) Elderly person is defined in 24 CFR part 5.
* * * * *
PART 234--CONDOMINIUM OWNERSHIP MORTGAGE INSURANCE
91. The authority citation for part 234 is revised to read as
follows:
Authority: 12 U.S.C. 1715b and 1715y; 42 U.S.C. 3535(d). Section
234.520(a)(2)(ii) is also issued under 12 U.S.C. 1707(a).
Subpart A--Eligibility Requirements--Individually Owned Units
Sec. 234.248 [Removed]
92. Section 234.248 is removed.
PART 235--MORTGAGE INSURANCE AND ASSISTANCE PAYMENTS FOR HOME
OWNERSHIP AND PROJECT REHABILITATION
93. The authority citation for part 235 is revised to read as
follows:
Authority: 12 U.S.C. 1715b and 1715z; 42 U.S.C. 3535(d).
Subpart A--Eligibility Requirements--Homes for Lower Income
Families
Sec. 235.1204 [Removed]
94. Section 235.1204 is removed.
PART 236--MORTGAGE INSURANCE AND INTEREST REDUCTION PAYMENT FOR
RENTAL PROJECTS
95. The authority citation for part 236 continues to read as
follows:
Authority: 12 U.S.C. 1715b and 1715z-1; 42 U.S.C. 3535(d).
Subpart A--Eligibility Requirements for Mortgage Insurance
96. Section 236.2 is amended by revising the definition of
``Elderly person'' to read as follows:
Sec. 236.2 Definitions.
* * * * *
Elderly person is defined in 24 CFR part 5.
* * * * *
PART 237--SPECIAL MORTGAGE INSURANCE FOR LOW AND MODERATE INCOME
FAMILIES
97. The authority citation for part 237 continues to read as
follows:
Authority: 12 U.S.C. 1709, 1715b, and 1715z-2; 42 U.S.C.
3535(d).
Subpart A--Eligibility Requirements
Sec. 237.248 [Removed]
98. Section 237.248 and the undesignated center heading preceding
it are removed.
PART 248--PREPAYMENT OF LOW INCOME HOUSING MORTGAGES
99. The authority citation for part 248 continues to read as
follows:
Authority: 12 U.S.C. 1715l note, 4101 note, and 4101-4124; 42
U.S.C. 3535(d).
Subpart C--Prepayment and Plans of Action Under the Emergency Low
Income Preservation Act of 1987
100. Section 248.201 is amended by removing the definitions of
``Fair Market Rent'' and ``Section 8'', and adding introductory text to
read as follows:
Sec. 248.201 Definitions.
The terms Fair Market Rent (FMR) and Section 8 are defined in 24
CFR part 5.
* * * * *
PART 260--INTEREST SUBSIDY GRANTS
101. The authority citation for part 260 is revised to read as
follows:
Authority: 42 U.S.C. 1440(c)(2) and 3535(d).
Sec. 260.2 [Amended]
102. Section 260.2 is amended by removing and reserving paragraph
(d).
PART 261--ASSISTED HOUSING DRUG ELIMINATION PROGRAM
103. The authority citation for part 261 continues to read as
follows:
Authority: 42 U.S.C. 3535(d) and 11901 et seq.
Subpart A--General
104. Section 261.5 is amended by removing the definition of ``HUD
or Department'', and adding introductory text to read as follows:
Sec. 261.5 Definitions.
The terms Department and HUD are defined in 24 CFR part 5.
* * * * *
[[Page 5208]]
PART 265--TRANSFER FROM NON-PROFIT TO PROFIT-MOTIVATED OWNERSHIP
FOR MULTIFAMILY HOUSING PROJECTS WITH HUD-INSURED OR HUD-HELD
MORTGAGES
105. The authority citation for part 265 is revised to read as
follows:
Authority: 42 U.S.C. 3535(d).
Sec. 265.4 [Removed]
106. Section 265.4 is removed and reserved.
PART 280--NEHEMIAH HOUSING OPPORTUNITY GRANTS PROGRAM
107. The authority citation for part 285 continues to read as
follows:
Authority: 12 U.S.C. 1715l note; 42 U.S.C. 3535(d).
Subpart A--General
Sec. 280.5 [Amended]
108. Section 280.5 is amended by removing the definition of
``HUD.''
Sec. 280.10 [Removed]
109. Section 280.10 is removed.
Subpart D--Application and Selection Procedures
110. Section 280.207 is amended by:
a. Revising the introductory text and paragraph (a);
b. Removing paragraphs (g) and (k); and
c. Redesignating paragraphs (h) through (j) as paragraphs (g)
through (i), to read as follows:
Sec. 280.207 Other Federal requirements.
In addition to the requirements set forth in 24 CFR part 5, the
following additional Federal requirements apply to this program:
(a) Nondiscrimination and equal opportunity. (1) The affirmative
fair housing marketing requirements at 24 CFR part 200, subpart M, and
the implementing regulations at 24 CFR part 108.
(2) Racial and ethnic data collection requirements. Recipients must
maintain current data on the race and ethnicity of program
beneficiaries.
* * * * *
PART 290--DISPOSITION OF MULTIFAMILY PROJECTS AND SALE OF HUD-HELD
MULTIFAMILY MORTGAGES
111. The authority citation for part 290 continues to read as
follows:
Authority: 12 U.S.C. 1701z-11, 1701z-12, 1713, 1715b, 1715z-1b;
42 U.S.C. 3535(d).
Subpart A--General Provisions
112. Section 290.5 is amended by removing the definitions of
``Department'' and ``URA'', and revising the introductory text to read
as follows:
Sec. 290.5 What definitions apply in this regulation?
The terms Department and URA are defined in 24 CFR part 5.
* * * * *
Sec. 290.7 [Removed]
113. Section 290.7 is removed.
PART 291--DISPOSITION OF HUD-ACQUIRED SINGLE FAMILY PROPERTY
114. The authority citation for part 291 continues to read as
follows:
Authority: 12 U.S.C. 1709 and 1715b; 42 U.S.C. 1441, 1441a,
1551a, and 3535(d).
Subpart A--General Provisions
115. Section 291.5 is amended by removing the definitions of
``HUD'' and ``Secretary'', and revising the introductory text to read
as follows:
Sec. 291.5 Definitions.
The terms HUD and Secretary are defined in 24 CFR part 5.
* * * * *
Subpart E--Lease and Sale of HUD-Acquired Single Family Properties
for the Homeless
Sec. 291.405 [Amended]
116. Section 291.405 is amended by removing the definition of
``HUD.''
117. Section 291.435 is amended by:
a. Revising the introductory text and paragraph (a)(1);
b. Removing paragraphs (c) and (e); and
c. Redesignating paragraph (d) as paragraph (c) to read as follows:
Sec. 291.435 Applicability of other Federal requirements.
In addition to the requirements set forth in 24 CFR part 5, the
following Federal requirements apply to lessees and purchasers under
this subpart:
(a) Nondiscrimination and equal opportunity. (1) The
nondiscrimination and equal opportunity requirements set forth in 24
CFR part 5 are modified as follows:
(i) Where applicable, lessees and purchasers must also comply with
the Americans with Disabilities Act (42 U.S.C. 12131) and implementing
regulations at 28 CFR parts 35 and 36.
(ii) The requirements of section 3 of the Housing and Urban
Development Act of 1968 (12 U.S.C. 1701u), and Executive Order 11246
(30 FR 12319, 12935, 3 CFR, 1946-1965 Comp., p. 339; Executive Order
11625 (36 FR 19967, 3 CFR, 1971-1975 Comp., p. 616); Executive Order
12432 (48 FR 32551, 3 CFR, 1983 Comp., p. 198; and Executive Order
12138 (44 FR 29637, 3 CFR, 1979 Comp., p. 393) do not apply to this
subpart.
* * * * *
Subpart F--[Removed]
118. Subpart F, consisting of Sec. 291.500, is removed.
PART 511--RENTAL REHABILITATION GRANT PROGRAM
119. The authority citation for part 511 continues to read as
follows:
Authority: 2 U.S.C. 1437o and 3535(d).
Subpart A--General
120. Section 511.2 is amended by removing the definitions of
``HUD'' and ``Public Housing Agency (PHA)'', and adding introductory
text to read as follows:
Sec. 511.2 Definitions.
The terms HUD and Public Housing Agency (PHA) are defined in 24 CFR
part 5.
* * * * *
Sec. 511.5 [Removed]
121. Section 511.5 is removed.
Subpart B--Program Requirements
122. Section 511.13 is amended by:
a. Revising the heading and the introductory text;
b. Removing paragraphs (a) and (c);
c. Redesignating paragraph (b) as paragraph (a); and
d. Adding paragraph (b) and reserving it, to read as follows:
Sec. 511.13 Nondiscrimination, equal opportunity, and affirmative
marketing requirements.
In addition to the nondiscrimination and equal opportunity
requirements set forth in 24 CFR part 5, the following requirements
apply:
* * * * *
123. Section 511.16 is amended by:
a. Revising the introductory text;
b. Removing paragraphs (c), (d), and (f);
b. Redesignating paragraphs (e) and (g) as paragraphs (c) and (d),
respectively, to read as follows:
Sec. 511.16 Other Federal requirements.
In addition to the Federal requirements set forth in 24 CFR part 5,
Grantees and, where applicable, State
[[Page 5209]]
recipients shall comply with the following requirements:
* * * * *
PART 570--COMMUNITY DEVELOPMENT BLOCK GRANTS
124. The authority citation for part 570 is revised to read as
follows:
Authority: 42 U.S.C. 3535(d) and 5300-5320.
Subpart A--General Provisions
125. Section 570.3 is amended by removing the definitions of
``HUD'' and ``Secretary'', and adding introductory text to read as
follows:
Sec. 570.3 Definitions.
The terms HUD and Secretary are defined in 24 CFR part 5.
* * * * *
Sec. 570.5 [Removed]
126. Section 570.5 is removed.
Subpart I--State Community Development Block Grant Program
Sec. 570.481 [Amended]
127. Section 570.481 is amended by removing paragraph (a)(3).
Subpart K--Other Program Requirements
128. Sections 570.607 is revised to read as follows:
Sec. 570.607 Employment and contracting opportunities.
Grantees shall comply with:
(a) Executive Order 11246, as amended by Executive Orders 11375,
11478, 12086, and 12107 (3 CFR, 1964-1965 Comp., p.339; 3 CFR, 1966-
1970 Comp., p. 684; 3 CFR, 1966-1970 Comp., p. 803; 3 CFR, 1978 Comp.,
p. 230; and 3 CFR, 1978 Comp., p. 264) (Equal Employment Opportunity)
and the implementing regulations at 41 CFR chapter 60; and
(b) Section 3 of the Housing and Urban Development Act of 1968 (12
U.S.C. 1701u) and implementing regulations at 24 CFR part 135.
129. Section 570.609 is revised to read as follows:
Sec. 570.609 Use of debarred, suspended or ineligible contractors or
subrecipients.
The requirements set forth in 24 CFR part 5 apply to this program.
PART 572--HOPE FOR HOMEOWNERSHIP OF SINGLE FAMILY HOMES PROGRAM
(HOPE 3)
130. The authority citation for part 572 continues to read as
follows:
Authority: 42 U.S.C. 3535(d) and 12891.
Subpart A--General
131. Section 572.5 is amended by removing the definitions of
``HUD'', ``IHA'', ``NAHA'', ``1937 Act'', ``NOFA'', and ``PHA'', and
revising the introductory text to read as follows:
Sec. 572.5 Definitions.
The terms HUD, Indian Housing Authority (IHA), NAHA, 1937 Act,
NOFA, and Public Housing Agency (PHA) are defined in 24 CFR part 5.
* * * * *
Sec. 572.15 [Removed]
132. Section 572.15 is removed.
Subpart E--Other Federal Requirements
133. Section 572.405 is amended by:
a. Revising the introductory text and paragraph (a);
b. Removing paragraphs (b), (c) and (d);
c. Redesignating paragraphs (e) through (g) as paragraphs (b)
through (d); and
d. Revising newly designated paragraph (b) to read as follows:
Sec. 572.405 Nondiscrimination and equal opportunity requirements.
In addition to the nondiscrimination and equal opportunity
requirements set forth in 24 CFR part 5, the following requirements
apply to homeownership programs under this part:
(a) Modification of fair housing and nondiscrimination requirements
for Indian tribes and IHAs. (1) The Indian Civil Rights Act (25 U.S.C.
1301 et seq.) applies to tribes when they exercise their powers of
self-government. Thus, it is applicable in all cases when an IHA has
been established by exercise of such powers. In the case of the IHA
established pursuant to State law, the applicability of the Indian
Civil Rights Act shall be determined on a case-by-case basis.
Development subject to the Indian Civil Rights Act must be developed
and operated in compliance with its provisions and all implementing HUD
requirements, instead of title VI and the Fair Housing Act and their
implementing regulations.
(2) In the case of Indian tribes and IHAs, compliance with the
requirements of this section shall be to the maximum extent consistent,
but not in derogation of, the Indian Self-Determination and Education
Assistance Act (25 U.S.C. 450e(b)).
(b) Affirmative fair housing marketing. The recipient must adopt a
strategy for informing and soliciting applications from people who are
least likely to apply, because of race, color, religion, sex,
disability, familial status, or national origin, for the program
without special outreach, consistent with the affirmative fair housing
marketing requirements. (See 24 CFR 92.351 for an example of an
affirmative strategy.) Paragraph (b) of this section does not apply to
Indian tribes and IHAs, as described in paragraph (a)(1) of this
section.
* * * * *
PART 574--HOUSING OPPORTUNITIES FOR PERSONS WITH AIDS
134. The authority citation for part 574 continues to read as
follows:
Authority: 42 U.S.C. 3535(d) and 12901-12912.
Subpart A--General
135. Section 574.3 is amended by removing the definitions of
``Grantee'' and ``Secretary'', and adding introductory text to read as
follows:
Sec. 574.3 Definitions.
The terms Grantee and Secretary are defined in 24 CFR part 5.
* * * * *
Subpart G--Other Federal Requirements
Sec. 574.600 [Redesignated as Sec. 574.603]
136. Section 574.600 is redesignated as Sec. 574.603 and a new
Sec. 574.600 is added to read as follows:
Sec. 574.600 Cross-reference.
The Federal requirements set forth in 24 CFR part 5 apply to this
program as specified in this subpart.
137. Section 574.603 is amended by:
a. Revising the introductory text and paragraph (a);
b. Removing paragraphs (b), (c), (d) and (f); and
c. Redesignating paragraph (e) as paragraph (b) to read as follows:
Sec. 574.603 Nondiscrimination and equal opportunity.
In addition to the nondiscrimination and equal opportunity
requirements set forth in 24 CFR part 5, the following requirements
apply:
(a) Fair housing requirements. (1) Grantees and project sponsors
shall comply with the applicable provisions of the Americans with
Disabilities Act (42 U.S.C. 12101-12213) and implementing regulations
at 28 CFR part 35 (States and local government grantees) and part 36
(public accommodations and requirements for
[[Page 5210]]
certain types of short-term housing assistance).
(2) Executive Order 11246, as amended by Executive Orders 11375,
11478, 12086, and 12107 (3 CFR, 1964-1965 Comp., p. 339; 3 CFR, 1966-
1970 Comp., p. 684; 3 CFR, 1966-1970 Comp., p. 803; 3 CFR 1978 Comp.,
p. 230; and 3 CFR, 1978 Comp., p. 264) (Equal Employment Opportunity)
does not apply to this program.
* * * * *
Secs. 574.610, 574.615, and 574.620 [Removed]
138. Sections 574.610, 574.615, and 574.620 are removed.
PART 576--EMERGENCY SHELTER GRANTS PROGRAM: STEWART B. McKINNEY
HOMELESS ASSISTANCE ACT
139. The authority citation for part 576 continues to read as
follows:
Authority: 42 U.S.C. 3535(d) and 11376.
Subpart A--General
140. Section 576.3 is amended by removing the definitions of
``Grantee'' and ``HUD'', and adding introductory text to read as
follows:
Sec. 576.3 Definitions.
The terms Grantee and HUD are defined in 24 CFR part 5.
* * * * *
Secs. 576.5 [Removed]
141. Section 576.5 is removed.
Subpart G--Program Requirements
142. Section 576.79 is amended by:
a. Revising the introductory text and paragraph (a);
b. Removing paragraphs (e) and (h);
c. Redesignating paragraphs (f) and (g) as paragraphs (e) and (f),
respectively;
d. Redesignating paragraphs (i) and (j) as paragraphs (g) and (h),
respectively, to read as follows:
Sec. 576.79 Other Federal requirements.
In addition to the Federal requirements set forth in 24 CFR part 5,
use of emergency shelter grant amounts must comply with the following
requirements:
(a) Nondiscrimination and equal opportunity. The nondiscrimination
and equal opportunity requirements at 24 CFR part 5 are modified as
follows:
(1) Rehabilitation Act requirements. HUD's regulations at 24 CFR
part 8 implement section 504 of the Rehabilitation Act of 1973 (29
U.S.C. 794). For purposes of the emergency shelter grants program, the
term ``dwelling units'' in 24 CFR part 8 shall include sleeping
accommodations.
(2) Use of emergency shelter grant amounts must also comply with
the requirement that the grantee or the State recipient make known that
use of the facilities and services is available to all on a
nondiscriminatory basis. If the procedures that the grantee or
recipient intends to use to make known the availability of the
facilities and services are unlikely to reach persons of any particular
race, color, religion, sex, age, national origin, familial status, or
disability who may qualify for such facilities and services, the
grantee or recipient must establish additional procedures that will
ensure that such persons are made aware of the facilities and services.
Grantees and recipients must also adopt procedures which will make
available to interested persons information concerning the location of
services and facilities that are accessible to persons with
disabilities.
* * * * *
PART 582--SHELTER PLUS CARE
143. The authority citation for part 582 is revised to read as
follows:
Authority: 42 U.S.C. 3535(d), 11403 note.
Subpart A--General
144. Section 582.5 is amended by removing the definitions of ``Fair
Market rent or FMR'', ``HUD'', ``Public housing agency or PHA'', and
Secretary'', and revising the introductory text to read as follows:
Sec. 582.5 Definitions.
The terms Fair Market Rent (FMR), HUD, Public Housing Agency (PHA),
and Secretary are defined in 24 CFR part 5.
* * * * *
Sec. 582.10 [Removed]
145. Section 582.10 is removed.
Subpart D--Program Requirements
146. Section 582.330 is amended by revising paragraph (b) to read
as follows:
Sec. 582.330 Nondiscrimination and equal opportunity requirements.
* * * * *
(b) Compliance with requirements. (1) In addition to the
nondiscrimination and equal opportunity requirements set forth in 24
CFR part 5, recipients serving a designated population of homeless
persons must, within the designated population, comply with the
prohibitions against discrimination against handicapped individuals
under section 503 of the Rehabilitation Act of 1973 (29 U.S.C. 794) and
implementing regulations at 41 CFR chapter 60-741.
(2) The nondiscrimination and equal opportunity requirements set
forth at part 5 of this title are modified as follows:
(i) The Indian Civil Rights Act (25 U.S.C. 1301 et seq.) applies to
tribes when they exercise their powers of self-government, and to IHAs
when established by the exercise of such powers. When an IHA is
established under State law, the applicability of the Indian Civil
Rights Act will be determined on a case-by-case basis. Projects subject
to the Indian Civil Rights Act must be developed and operated in
compliance with its provisions and all implementing HUD requirements,
instead of title VI and the Fair Housing Act and their implementing
regulations.
(ii) [Reserved]
* * * * *
147. Section 582.340 is amended by:
a. Adding an introductory text;
b. Removing paragraphs (b), (c), and (d); and
c. Redesignating paragraph (e) as paragraph (b) to read as follows:
Sec. 582.340 Other Federal requirements.
In addition to the Federal requirements set forth in 24 CFR part 5,
the following requirements apply to this program:
* * * * *
PART 583--SUPPORTIVE HOUSING PROGRAM
148. The authority citation for part 583 continues to read as
follows:
Authority: 42 U.S.C. 3535(d) and 11389.
Subpart A--General
149. Section 583.5 is amended by removing the definition of
``HUD.''
Sec. 583.10 [Removed]
150. Section 583.10 is removed.
Subpart D--Program Requirements
151. Section 583.325 is amended by revising paragraph (b)
introductory text and (b)(1) to read as follows:
Sec. 583.325 Nondiscrimination and equal opportunity requirements.
* * * * *
(b) Nondiscrimination and equal opportunity requirements. The
nondiscrimination and equal opportunity requirements set forth at part
5 of this title apply to this program.
(1) The Indian Civil Rights Act (25 U.S.C. 1301 et seq.) applies to
tribes when they exercise their powers of self-
[[Page 5211]]
government, and to IHAs when established by the exercise of such
powers. When an IHA is established under State law, the applicability
of the Indian Civil Rights Act will be determined on a case-by-case
basis. Projects subject to the Indian Civil Rights Act must be
developed and operated in compliance with its provisions and all
implementing HUD requirements, instead of title VI and the Fair Housing
Act and their implementing regulations.
* * * * *
152. Section 583.330 is amended by:
a. Revising the introductory text;
b. Removing paragraph (f) and (i); and
c. Redesignating paragraphs (g) and (h) as paragraphs (f) and (g),
respectively to read as follows:
Sec. 583.330 Applicability of other Federal requirements.
In addition to the requirements set forth in 24 CFR part 5, use of
assistance provided under this part must comply with the following
Federal requirements:
* * * * *
PART 585--YOUTHBUILD PROGRAM
153. The authority citation for part 585 continues to read as
follows:
Authority: 42 U.S.C. 3535(d) and 8011.
Subpart A--General
154. Section 585.4 is amended by removing the definitions of ``1937
Act'' and ``Secretary'', and revising the introductory text to read as
follows:
Sec. 585.4 Definitions.
The terms Secretary and 1937 Act are defined in 24 CFR part 5.
* * * * *
PART 590--URBAN HOMESTEADING
155. The authority citation for part 590 is revised to read as
follows:
Authority: 12 U.S.C. 1706e; 42 U.S.C. 3535(d).
Sec. 590.3 [Removed]
156. Section 590.3 is removed.
Sec. 590.5 [Removed]
157
FR Doc. 96-2702 General HUD Program Requirements: Cross-Cutting Requirements
. Section 590.5 is amended by removing the definition of
``HUD.''
PART 594--JOHN HEINZ NEIGHBORHOOD DEVELOPMENT PROGRAM
158. The authority citation for part 594 continues to read as
follows:
Authority: 42 U.S.C. 3535(d) and 1518a.
Subpart A--General
159. Section 594.3 is amended by removing the definition of
``HUD.''
Subpart D--Award and Use of Grant Amounts
160. Section 594.30 is amended by:
a. Revising the introductory text and paragraph (a);
b. Removing paragraphs (b), (c), and (d); and
c. Redesignating paragraphs (e) through (h) as paragraphs (b)
through (e) to read as follows:
Sec. 594.30 Equal opportunity and other Federal requirements.
Each participating neighborhood development organization must
certify that it will carry out activities assisted under the program in
compliance with the nondiscrimination and equal opportunity
requirements set forth in 24 CFR part 5 and:
(a) The requirements at 24 CFR part 200, subpart M;
* * * * *
PART 597--URBAN EMPOWERMENT ZONES AND ENTERPRISE COMMUNITIES
161. The authority citation for part 597 continues to read as
follows:
Authority: 26 U.S.C. 1391; 42 U.S.C. 3535(d).
Subpart A--General Provisions
162. Section 597.3 is amended by removing the definitions of
``HUD'' and ``Secretary'', and adding introductory text to read as
follows:
Sec. 597.3 Definitions.
The terms HUD and Secretary are defined in 24 CFR part 5.
* * * * *
Sec. 597.5 [Removed]
163. Section 597.5 is removed.
PART 700--CONGREGATE HOUSING SERVICES PROGRAM
164. The authority citation for part 700 is revised to read as
follows:
Authority: 42 U.S.C. 3535(d) and 8011.
165. Section 700.105 is amended by removing the definitions of
``Elderly person'' and ``HUD'', and revising the introductory text to
read as follows:
Sec. 700.105 Definitions.
The terms Elderly person and HUD are defined in 24 CFR part 5.
* * * * *
PART 750--DISCLOSURE AND VERIFICATION OF SOCIAL SECURITY NUMBERS
AND EMPLOYER IDENTIFICATION NUMBERS BY APPLICANTS AND PARTICIPANTS
IN CERTAIN HOUSING ASSISTANCE PROGRAMS
166. The authority citation for part 750 is revised to read as
follows:
Authority: 12 U.S.C. 1701q; 42 U.S.C. 3535(d), 3543, 1437a,
1437d, 1437f, 1437o, 1437ee, and 8013.
Subpart A--General
167. Section 750.5 is amended by removing the definitions of ``HUD
or Department'' and ``Public housing agency (PHA)'', and revising the
introductory text to read as follows:
Sec. 750.5 Definitions.
The terms HUD, Department and Public housing agency (PHA) are
defined in 24 CFR part 5.
* * * * *
PART 760--PROCEDURES FOR OBTAINING WAGE AND CLAIM INFORMATION ABOUT
APPLICANTS AND PARTICIPANTS IN HUD'S SECTION 8 AND PUBLIC HOUSING
PROGRAMS FROM STATE WAGE INFORMATION COLLECTION AGENCIES (SWICAs)
168. The authority citation for part 760 continues to read as
follows:
Authority: 12 U.S.C. 1701q; 42 U.S.C. 1437a, 1437d, 1437ee,
1437f, 3535(d), and 3544.
Subpart A--General
169. Section 760.5 is amended by removing the definitions of
``HUD'' and ``Public Housing Agency (PHA)'', and revising the
introductory text to read as follows:
Sec. 760.5 Definitions.
The terms HUD and Public Housing Agency (PHA) are defined in 24 CFR
part 5.
* * * * *
PART 791--REVIEW OF APPLICATIONS FOR HOUSING ASSISTANCE AND
ALLOCATIONS OF HOUSING ASSISTANCE FUNDS
170. The authority citation for part 791 is revised to read as
follows:
Authority: 42 U.S.C. 1439 and 3535(d).
Subpart A--General Provisions
171. Section 791.102 is amended by removing the definitions of
``HUD'' and ``Public housing agency'', and adding an introductory text
to read as follows:
[[Page 5212]]
Sec. 791.102 Definitions.
The terms HUD, and Public housing agency (PHA) are defined in 24
CFR part 5.
* * * * *
PART 792--HOUSING AGENCY SECTION 8 FRAUD RECOVERIES
172. The authority citation for part 792 is revised to read as
follows:
Authority: 42 U.S.C. 1437f note and 3535(d).
Subpart A--General Provisions
173. Section 792.103 is amended by revising the definition of ``HA
(Housing Agency)'' to read as follows:
Sec. 792.103 Definitions.
* * * * *
HA (Housing Agency) is the collective term for Public Housing
Agencies and Indian Housing Authorities. The terms Public Housing
Agency (PHA) and Indian Housing Authority (IHA) are defined in 24 CFR
part 5.
* * * * *
PART 799--[Removed]
174. Part 799, consisting of Sec. 799.101, is removed.
PART 811--TAX EXEMPTION OF OBLIGATIONS OF PUBLIC HOUSING AGENCIES
AND RELATED AMENDMENTS
175. The authority citation for part 811 continues to read as
follows:
Authority: 42 U.S.C. 1437, 1437a, 1437c, 1437f, and 3535(d).
Subpart A--Tax Exemption, Under Section 11(b) of the Act, of
Obligations Issued by Public Housing Agencies To Finance Section 8
Projects
176. Section 811.102 is amended by:
a. Adding an introductory text;
b. Removing paragraphs (l) and (q);
c. Redesignating paragraphs (m) through (p) as paragraphs (l)
through (o); and
d. Redesignating paragraphs (r) through (u) as paragraphs (q)
through (t) to read as follows:
Sec. 811.102 Definitions.
The terms HUD and Public Housing Agency (PHA) are defined in 24 CFR
part 5.
* * * * *
PART 813--DEFINITION OF INCOME, INCOME LIMITS, RENT AND
REEXAMINATIONS OF FAMILY INCOME FOR THE SECTION 8 HOUSING
ASSISTANCE PAYMENTS PROGRAMS AND RELATED PROGRAMS
177. The authority citation for part 813 continues to read as
follows:
Authority: 42 U.S.C. 1437a, 1437c, 1437f, 1437n and 3535(d).
178. Section 813.102 is amended by removing the definitions of
``Elderly person'', ``Indian'', ``Indian Housing Authority'', and
``Public Housing Agency'', and adding introductory text to read as
follows:
Sec. 813.102 Definitions.
The terms Elderly person, Indian, Indian Housing Authority (IHA),
and Public Housing Agency (PHA) are defined in 24 CFR part 5.
* * * * *
PART 850--HOUSING DEVELOPMENT GRANTS
179. The authority citation for part 850 continues to read as
follows:
Authority: 42 U.S.C. 1437o and 3535(d).
Subpart A--General Provisions
180. Section 850.3 is amended by removing the definitions of
``Grantee'' and ``HUD'', and adding introductory text to read as
follows:
Sec. 850.3 Definitions.
The terms Grantee and HUD are defined in 24 CFR part 5.
* * * * *
Subpart C--Application Procedures and Program Requirements
181. Section 850.35 is amended by:
a. Revising the introductory text;
b. Removing paragraphs (a), (b), (d), and (l); and
c. Redesignating paragraphs (c) and (e) through (k) as paragraphs
(a) through (h), respectively; and
d. Redesignating paragraph (m) as paragraph (i), to read as
follows:
Sec. 850.35 Other program requirements.
In addition to the requirements set forth in 24 CFR part 5, the
applicant (or grantee) shall assure that the following program
requirements are met:
* * * * *
PART 880--SECTION 8 HOUSING ASSISTANCE PAYMENTS PROGRAM FOR NEW
CONSTRUCTION
182. The authority citation for part 880 is revised to read as
follows:
Authority: 42 U.S.C. 1437a, 1437c, 1437f, 3535(d), 12701, and
13611-13619.
Subpart B--Definitions, Project Eligibility and Other Requirements
183. Section 880.201 is amended by removing the definitions of
``Fair Market Rent'', ``HUD'', ``NOFA'', and ``PHA'', and adding
introductory text to read as follows:
Sec. 880.201 Definitions.
The terms Fair Market Rent (FMR), HUD, NOFA, and Public Housing
Agency (PHA) are defined in 24 CFR part 5.
* * * * *
PART 881--SECTION 8 HOUSING ASSISTANCE PAYMENTS PROGRAM FOR
SUBSTANTIAL REHABILITATION
184. The authority citation for part 881 continues to read as
follows:
Authority: 42 U.S.C. 1437a, 1437c, 1437f, 3535(d), 12701, and
13611-13619.
Subpart B--Definitions, Project Eligibility and Other Requirements
185. Section 881.201 is amended by removing the definitions of
``Fair Market Rent'', ``HUD'', ``NOFA'', and ``PHA'', and adding
introductory text to read as follows:
Sec. 881.201 Definitions.
The terms Fair Market Rent (FMR), ``HUD, NOFA, and Public Housing
Agency (PHA) are defined in 24 CFR part 5.
* * * * *
PART 882--SECTION 8 CERTIFICATE AND MODERATE REHABILITATION
PROGRAMS
186. The authority citation for part 882 continues to read as
follows:
Authority: 42 U.S.C. 1437f and 3535(d).
Subpart A--Applicability, Scope and Basic Policies
187. Section 882.102 is amended by removing the definitions of
``Fair Market Rent'', ``HUD'', ``Public Housing Agency (``PHA'')'', and
``Secretary'', and adding introductory text to read as follows:
Sec. 882.102 Definitions.
The terms Fair Market Rent (FMR), HUD, Public Housing Agency (PHA),
and Secretary are defined in 24 CFR part 5.
* * * * *
[[Page 5213]]
PART 883--SECTION 8 HOUSING ASSISTANCE PAYMENTS PROGRAM--STATE
HOUSING AGENCIES
188. The authority citation for part 883 continues to read as
follows:
Authority: 42 U.S.C. 1437a, 1437c, 1437f, 3535(d), and 13611-
13619.
Subpart C--Definitions, Project Eligibility and Requirements
189. Section 883.302 is amended by removing the definitions of
``Fair Market Rent (FMR)'', ``HUD'', and ``PHA (Public Housing
Agency)'', and adding introductory text to read as follows:
Sec. 883.302 Definitions.
The terms Fair Market Rent (FMR), HUD, and Public Housing Agency
(PHA) are defined in 24 CFR part 5.
* * * * *
PART 884--SECTION 8 HOUSING ASSISTANCE PAYMENTS PROGRAM, NEW
CONSTRUCTION SET-ASIDE FOR SECTION 515 RURAL RENTAL HOUSING
PROJECTS
190. The authority citation for part 884 continues to read as
follows:
Authority: 42 U.S.C. 1437a, 1437c, 1437f, 3535(d), and 13611-
13619.
Subpart A--Applicability, Scope and Basic Policies
191. Section 884.102 is amended by removing the definitions of
``Fair Market Rent'', ``HUD'', ``Public Housing Agency (PHA)'', and
``Secretary'', and adding introductory text to read as follows:
Sec. 884.102 Definitions.
The terms Fair Market Rent (FMR), HUD, Public housing agency (PHA),
and Secretary are defined in 24 CFR part 5.
* * * * *
PART 885--LOANS FOR HOUSING FOR THE ELDERLY OR HANDICAPPED
192. The authority citation for part 885 continues to read as
follows:
Authority: 12 U.S.C. 1701q; 42 U.S.C. 1437f and 3535(d).
Subpart C--Section 202 Projects for Nonelderly Handicapped Families
and Individuals--Section 162 Assistance
193. Section 885.740 is amended by adding introductory text and
revising paragraph (a) to read as follows:
Sec. 885.740 Other Federal requirements.
In addition to the Federal requirements set forth in 24 CFR part 5,
the following requirements apply to this program:
(a) Affirmative fair housing marketing. (1) The affirmative fair
housing marketing requirements of 24 CFR part 200, subpart M, and the
implementing regulations at 24 CFR part 108; and
(2) The fair housing advertising and poster guidelines at 24 CFR
parts 109 and 110.
* * * * *
PART 886--SECTION 8 HOUSING ASSISTANCE PAYMENTS PROGRAM--SPECIAL
ALLOCATIONS
194. The authority citation for part 886 continues to read as
follows:
Authority: 42 U.S.C. 1437a, 1437c, 1437f, 3535(d), and 13611-
13619.
Subpart A--Additional Assistance Program for Projects With HUD-
Insured and HUD-Held Mortgages
195. Section 886.102 is amended by removing the definitions of
``Fair Market Rent'', ``HUD'', ``Public Housing Agency (PHA)'', and
``Secretary'', and adding introductory text to read as follows:
Sec. 886.102 Definitions.
The terms Fair Market Rent (FMR), HUD, Public Housing Agency (PHA),
and Secretary are defined in 24 CFR part 5.
* * * * *
196. Section 886.132 is amended by revising paragraph (f)(1) to
read as follows:
Sec. 886.132 Selection preferences.
* * * * *
(f) Nondiscrimination. Any selection preferences that are used by
an owner must be established and administered in accordance with:
(1) The nondiscrimination and equal opportunity requirements set
forth in 24 CFR part 5, except for:
(i) Section 3 of the Housing and Urban Development Act of 1968 (12
U.S.C. 1701u) and the implementing regulations at 24 CFR part 135; and
(ii) Executive Order 11246, as amended by Executive Orders 11375,
11478, 12086, and 12107 (3 CFR, 1964-1965 Comp., p. 339; 3 CFR, 1966-
1970 Comp., p. 684; 3 CFR, 1966-1970 Comp., p. 803; 3 CFR, 1978 Comp.,
p. 230; and 3 CFR, 1978 Comp., p. 264, respectively); Executive Order
11625, as amended by Executive Order 12007 (3 CFR, 1971-1975 Comp., p.
616 and 3 CFR, 1977 Comp., p. 139); Executive Order 12432 (3 CFR, 1983
Comp., p. 198); and Executive Order 12138, as amended by Executive
Order 12608 (3 CFR, 1977 Comp., p. 393 and 3 CFR, 1987 Comp., p. 245).
(2) The Americans with Disabilities Act (42 U.S.C. 12101-12213), to
the extent applicable; and
(3) HUD's affirmative fair housing objectives and (where
applicable) the owner's HUD-approved affirmative fair housing marketing
plan.
* * * * *
Subpart C--Section 8 Housing Assistance Program for the Disposition
of HUD-Owned Projects
197. Section 886.302 is amended by removing the definitions of
``Fair Market Rent'', ``HUD'', and ``Public Housing Agency (PHA)'', and
adding introductory text to read as follows:
Sec. 886.302 Definitions.
The terms Fair Market Rent (FMR), HUD, and Public Housing Agency
(PHA) are defined in 24 CFR part 5.
* * * * *
PART 887--HOUSING VOUCHERS
198. The authority citation for part 887 continues to read as
follows:
Authority: 42 U.S.C. 1437f(o) and 3535(d).
Subpart A--General Information
199. Section 887.7 is amended by removing the definitions of ``1937
Act'', ``Elderly person'', ``Fair market rent (FMR)'', ``HUD'', and
``Public Housing Agency (PHA)'', and adding introductory text to read
as follows:
Sec. 887.7 Definitions.
The terms 1937 Act, Elderly person, Fair Market Rent (FMR), HUD,
and Public Housing Agency (PHA) are defined in 24 CFR part 5.
* * * * *
PART 889--SUPPORTIVE HOUSING FOR THE ELDERLY
Sec. 889.105 [Removed]
200. The authority citation for part 889 continues to read as
follows:
Authority: 12 U.S.C. 1701q; 42 U.S.C. 3535(d).
Subpart A--General
Sec. 889.105 [Amended]
201. Section 889.105 is amended by removing the definition of
``Secretary.''
Subpart B--Application Procedures and Program Requirements
202. Section 889.265 is amended by adding introductory text and
revising paragraph (a) to read as follows:
Sec. 889.265 Other Federal requirements.
In addition to the requirements set forth in 24 CFR part 5, the
following
[[Page 5214]]
Federal requirements apply to this program:
(a) Affirmative fair housing marketing. (1) The affirmative fair
housing marketing requirements of 24 CFR part 200, subpart M and the
implementing regulations at 24 CFR part 108; and
(2) The fair housing and poster guidelines at 24 CFR parts 109 and
110.
* * * * *
PART 890--SUPPORTIVE HOUSING FOR PERSONS WITH DISABILITIES
203. The authority citation for part 890 continues to read as
follows:
Authority: 42 U.S.C. 3535(d) and 8013.
Subpart A--General
204. Section 890.105 is amended by removing the definition of
``Secretary.''
Subpart B--Application Procedures and Program Requirements
205. Section 890.260 is amended by adding introductory text and
revising paragraph (a) to read as follows:
Sec. 890.260 Other Federal requirements.
In addition to the requirements set forth in 24 CFR part 5, the
following Federal requirements apply to this program:
(a) Affirmative fair housing marketing. (1) The affirmative fair
housing marketing requirements of 24 CFR part 200, subpart M and the
implementing regulations at 24 CFR part 108; and
(2) The fair housing advertising and poster guidelines at 24 CFR
parts 109 and 110.
* * * * *
PART 899--[REMOVED]
206. Part 899, consisting of Sec. 899.101, is removed.
PART 901--PUBLIC HOUSING MANAGEMENT ASSESSMENT PROGRAM
207. The authority citation for part 901 is revised to read as
follows:
Authority: 42 U.S.C. 1437d(j) and 3535(d).
Subpart A--General Provisions
208. Section 901.05 is amended by:
a. Adding introductory text;
b. Removing paragraphs (m) and (t);
c. Redesignating paragraphs (n) through (s) as paragraphs (m)
through (r); and
d. Redesignating paragraphs (u) through (y) as paragraphs (s)
through (w) to read as follows:
Sec. 901.05 Definitions.
The terms Department, HUD, and Public Housing Agency (PHA) are
defined in 24 CFR part 5.
* * * * *
PART 904--LOW RENT HOUSING HOMEOWNERSHIP OPPORTUNITIES
209. The authority citation for part 904 continues to read as
follows:
Authority: 42 U.S.C. 1437-1437ee and 3535(d).
Subpart B--Turnkey III Program Description
Sec. 904.102 [Amended]
210. Section 904.102 is amended by removing paragraph (h) and
redesignating paragraphs (i) through (k) as paragraphs (h) through (j).
PART 913--DEFINITION OF INCOME, INCOME LIMITS, RENT AND
REEXAMINATION OF FAMILY INCOME FOR THE PUBLIC HOUSING PROGRAM
211. The authority citation for part 913 continues to read as
follows:
Authority: 42 U.S.C. 1437a, 1437d, 1437n, and 3535(d).
212. Section 913.102 is amended by removing the definitions of
``Elderly person'', ``Indian'', ``Indian Housing Authority'', and
``Public Housing Agency (PHA)'', and adding introductory text to read
as follows:
Sec. 913.102 Definitions.
The terms Elderly person, Indian, Indian Housing Authority (IHA),
and Public Housing Agency (PHA) are defined in 24 CFR part 5.
* * * * *
PART 941--PUBLIC HOUSING DEVELOPMENT
213. The authority citation for part 941 continues to read as
follows:
Authority: 42 U.S.C. 1437b, 1437c, 1437g, and 3535(d).
Subpart A--General
214. Section 941.103 is amended by removing the definitions of
``HUD'', and ``Public Housing Agency (PHA)'', and adding introductory
text to read as follows:
Sec. 941.103 Definitions.
The terms HUD and Public Housing Agency (PHA) are defined in 24 CFR
part 5.
* * * * *
Subpart B--PHA Eligibility and Program Requirements
215. Section 941.208 is amended by:
a. Adding introductory text;
b. Removing paragraphs (a), (e), and (f);
c. Redesignating paragraphs (b), (c), (d), (g), (h), and (i) as
paragraphs (a) through (f), respectively; and
d. Revising newly designated paragraph (b) to read as follows:
Sec. 941.208 Other Federal requirements.
In addition to the requirements set forth in 24 CFR part 5, the
following Federal Requirements apply to this program:
* * * * *
(b) Accessibility requirements. Participation in this program
requires compliance with the Architectural Barriers Act of 1968 (42
U.S.C. 4151-4157) and Executive Order 12250, 45 FR 72995, 3 CFR, 1980
Comp., p. 298.
* * * * *
PART 942--PET OWNERSHIP IN PUBLIC HOUSING FOR THE ELDERLY OR
HANDICAPPED
216. The authority citation for part 942 is revised to read as
follows:
Authority: 12 U.S.C. 1701n-1; 42 U.S.C. 3535(d).
Subpart A--General
217. Section 942.3 is amended by revising paragraph (c) read as
follows:
Sec. 942.3 Definitions.
* * * * *
(c) Public Housing Agency (PHA) is defined in 24 CFR part 5.
* * * * *
PART 945--DESIGNATED HOUSING--PUBLIC HOUSING DESIGNATED FOR
OCCUPANCY BY DISABLED, ELDERLY, OR DISABLED AND ELDERLY FAMILIES
218. The authority citation for part 945 is revised to read as
follows:
Authority: 42 U.S.C. 1473e and 3535(d).
Subpart A--General
219. Section 945.105 is amended by removing the definitions of
``Elderly person'', ``HUD or Department'', ``NAHA'', ``Public housing
agency or PHA'', and ``Secretary'', and revising the introductory text
to read as follows:
Sec. 945.105 Definitions.
The terms Department, Elderly person, HUD, NAHA, Public Housing
[[Page 5215]]
Agency (PHA), and Secretary are defined in 24 CFR part 5.
* * * * *
PART 960--ADMISSION TO, AND OCCUPANCY OF, PUBLIC HOUSING
220. The authority citation for part 960 continues to read as
follows:
Authority: 42 U.S.C. 1437a, 1437c, 1437d, 1437n, and 3535(d).
Subpart B--Admission, Rent and Reexamination
221. Section 960.203 is revised to read as follows:
Sec. 960.203 Nondiscrimination requirements.
The tenant selection criteria and requirements used by a PHA must
comply with:
(a) The nondiscrimination and equal opportunity requirements set
forth in 24 CFR part 5, with the exception of:
(1) Section 3 of the Housing and Urban Development Act of 1968 (12
U.S.C. 1701u) and the implementing regulations at 24 CFR part 135; and
(2) Executive Order 11246, as amended by Executive Orders 11375,
11478, 12086, and 12107 (3 CFR, 1964-1965 Comp., p. 339; 3 CFR, 1966-
1970 Comp., p. 684; 3 CFR, 1966-1970 Comp., p. 803; 3 CFR, 1978 Comp.,
p. 230; and 3 CFR, 1978 Comp., p. 264, respectively) (Equal Employment
Opportunity Programs) and implementing regulations at 41 CFR chapter
60; Executive Order 11625, as amended by Executive Order 12007 (3 CFR,
1971-1975 Comp., p. 616 and 3 CFR, 1977 Comp., p. 139) (Minority
Business Enterprises); Executive Order 12432 (3 CFR, 1983 Comp., p.
198) (Minority Business Enterprise Development); and 12138, as amended
by Executive Order 12608 (3 CFR, 1977 Comp., p. 393 and 3 CFR, 1987
Comp., p. 245) (Women's Business Enterprise).
(b) The Americans with Disabilities Act (42 U.S.C. 12101-12213), to
the extent applicable.
(c) Any tenant selection policies also must be consistent with
HUD's affirmative fair housing objectives.
Subpart E--Exemption From Eligibility Requirements for Police
Officers and Other Security Personnel
Sec. 960.503 [Amended]
222. Section 960.503 is amended by removing the definition of
``Department.''
PART 961--PUBLIC HOUSING DRUG ELIMINATION PROGRAM
223. The authority citation for part 961 continues to read as
follows:
Authority: 42 U.S.C. 3535(d) and 11901 et seq.
Subpart A--General
224. Section 961.5 is amended by removing the definitions of ``HUD
or Department'', ``Indian'', ``Indian Housing Authority (IHA)'', and
``Public housing agency (PHA)'', and adding introductory text to read
as follows:
Sec. 961.5 Definitions.
The terms Department, HUD, Indian Housing Authority (IHA), and
Public Housing Agency (PHA) are defined in 24 CFR part 5.
* * * * *
Subpart D--Grant Administration
225. Section 961.29 is amended by:
a. Revising the introductory text;
b. Removing paragraphs (b), (c), (g), and (h);
c. Redesignating paragraphs (d), (e), and (f) as paragraphs (b),
(c), and (d); and
d. Redesignating paragraphs (i), (j), and (k) as paragraphs (e),
(f), and (g); and
e. Revising newly designated paragraphs (e) and (f) to read as
follows:
Sec. 961.29 Other Federal Requirements.
In addition to the requirements set forth in 24 CFR part 5, use of
grant funds requires compliance with the following Federal
requirements:
* * * * *
(e) For IHAs, Sec. 950.115 of this chapter, ``Applicability of
civil rights requirements'', and Sec. 950.120 of this chapter,
``Compliance with other Federal requirements'', of this title apply and
control to the extent they may differ from other requirements of this
section;
(f) Indian preference. Applicants are subject to the Indian Civil
Rights Act (24 U.S.C . 1301), the provisions of section 7(b) of the
Indian Self-Determination and Education Assistance Act (25 U.S.C.
450e(b)), and the Indian preference rules in the IHA procurement
regulations at 24 CFR part 950, subpart B. These provisions require, to
the greatest extent feasible, that preference and opportunities for
training and employment be given to Indians and that preference in the
award of subcontracts and subgrants be given to Indian Organizations
and Indian Owned Economic Enterprises.
PART 962--PUBLIC HOUSING FAMILY SELF-SUFFICIENCY PROGRAM
226. The authority citation for part 962 is revised to read as
follows:
Authority: 42 U.S.C. 1437f, 1437u, and 3535(d).
Subpart A--General
227. Section 962.103 is amended by removing the definitions of
``HUD or Department'', ``Public housing agency or PHA'', and
``Secretary'', and revising the introductory text to read as follows:
Sec. 962.103 Definitions.
The terms Department, HUD, Public housing agency (PHA), and
Secretary are defined in 24 CFR part 5.
* * * * *
PART 963--PUBLIC HOUSING--CONTRACTING WITH RESIDENT-OWNED
BUSINESSES
228. The authority citation for part 963 is revised to read as
follows:
Authority: 42 U.S.C. 1437 and 3535(d).
Subpart A--General
229. Section 963.5 is amended by removing the definitions of
``HUD'' and ``Public housing agency (PHA)'', and adding introductory
text to read as follows:
Sec. 963.5 Definitions.
The terms HUD and Public housing agency (PHA) are defined in 24 CFR
part 5.
* * * * *
PART 964--TENANT PARTICIPATION AND TENANT OPPORTUNITIES IN PUBLIC
HOUSING
230. The Authority citation for part 964 continues to read as
follows:
Authority: 42 U.S.C. 1437d, 1437g, 1437l, 1437r, 1437t, and
3535(d).
Subpart A--General Provisions
231. Section 964.7 is amended by adding a definition of ``HA'' and
revising the definition of ``Public Housing Agency (HA)'' to read as
follows:
Sec. 964.7 Definitions.
* * * * *
HA means the same as Public Housing Agency (PHA).
* * * * *
Public Housing Agency (PHA) is defined in 24 CFR part 5.
* * * * *
232. Section 964.30 is revised to read as follows:
[[Page 5216]]
Sec. 964.30 Other Program requirements.
In addition to the requirements set forth in 24 CFR part 5, the
following Federal requirements apply to this program:
(a) Affirmative Outreach. (1) The Affirmative Fair Housing
Marketing Program requirements of 24 CFR part 200, subpart M and the
implementing regulations at 24 CFR part 108; and
(2) The fair housing advertising and poster guidelines at 24 CFR
parts 109 and 110.
(b) Title II of the Americans with Disabilities Act of 1990 (42
U.S.C. 12131) and implementing regulations at 28 CFR part 35.
PART 965--PHA-OWNED OR LEASED PROJECTS--MAINTENANCE AND OPERATION
233. The Authority citation for part 965 is revised to read as
follows:
Authority: 42 U.S.C. 1437, 1437a, 1437d, 1437g, and 3535(d).
Subpart H is also issued under 42 U.S.C. 4821-4846.
Subpart E--Tenant Allowances for Utilities
234. Section 965.472 is amended by revising the definition of
``Public Housing Agency [PHA]'' to read as follows:
Sec. 965.472 Definitions.
* * * * *
Public Housing Agency (PHA) is defined in 24 CFR part 5.
* * * * *
PART 968--PUBLIC HOUSING MODERNIZATION
235. The authority citation for part 968 is revised to read as
follows:
Authority: 42 U.S.C. 1437d, 1437l, and 3535(d).
Subpart A--General
236. Section 968.105 is amended by removing the definitions of
``HUD'' and ``PHA'', and revising the introductory text to read as
follows:
Sec. 968.105 Definitions.
The terms HUD and Public Housing Agency (PHA) are defined in 24 CFR
part 5.
* * * * *
237. Section 968.110 is amended by:
a. The introductory text and paragraph (a) are revised;
b. Paragraphs (b) and (h) are removed and reserved. The revisions
read as follows:
Sec. 968.110 Other program requirements.
In addition to the Federal requirements set forth in 24 CFR part 5,
the PHA shall comply with the following program requirements:
(a) Nondiscrimination and equal opportunity. The PHA shall comply
with Title II of the Americans with Disabilities Act and 28 CFR part
35; section 503 of the Rehabilitation Act of 1973 and 41 CFR chapter
60-471; and the Architectural Barriers Act of 1968 (42 U.S.C. 4151-
4157) and 24 CFR part 40.
* * * * *
Subpart D--Vacancy Reduction Program
238. Section 968.405 is amended by removing the definitions of
``NOFA'' and ``PHA'', and revising the introductory text to read as
follows:
Sec. 968.405 Definitions.
In addition to the definitions applicable under Sec. 968.105, the
following definitions apply to this subpart. The terms NOFA and Public
Housing Agency (PHA) are defined in 24 CFR part 5.
* * * * *
PART 999--[REMOVED]
239. Part 999, consisting of Sec. 999.101, is removed.
CHAPTER XI--[REMOVED]
239a. ``CHAPTER XI--SOLAR ENERGY AND ENERGY CONSERVATION BANK,
DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT'', is removed.
CHAPTER XV--[REMOVED]
239b. ``CHAPTER XV--MORTGAGE INSURANCE AND LOAN PROGRAMS UNDER THE
EMERGENCY HOMEOWNERS' RELIEF ACT, DEPARTMENT OF HOUSING AND URBAN
DEVELOPMENT'', is removed.
PART 3280--MANUFACTURED HOME CONSTRUCTION AND SAFETY STANDARDS
240. The authority citation for part 3280 is revised to read as
follows:
Authority: 42 U.S.C. 3535(d), 5403, and 5424.
Subpart A--General
Sec. 3280.2 [Amended]
241. Section 3280.2 is amended by removing the definition of
``Department.''
PART 3282--MANUFACTURED HOME PROCEDURAL AND ENFORCEMENT REGULATIONS
242. The authority citation for part 3282 is revised to read as
follows:
Authority: 42 U.S.C. 3535(d) and 5424.
Subpart A--General
243. Section 3282.7 is amended by:
a. Revising the introductory text;
b. Removing paragraphs (k), (p), and (ee);
c. Redesignating paragraphs (l) through (o) as paragraphs (k)
through (n);
d. Redesignating paragraphs (q) through (dd) as paragraphs (p)
through (cc); and
e. Redesignating paragraphs (ff) through (oo) as paragraphs (ee)
through (nn) to read as follows:
Sec. 3282.7 Definitions.
The terms Department, HUD, and Secretary are defined in 24 CFR part
5.
* * * * *
Dated: January 18, 1996.
Henry G. Cisneros,
Secretary.
[FR Doc. 96-2702 Filed 2-8-96; 8:45 am]
BILLING CODE 4210-32-P
Complete official Federal Register PDF
FR Doc. 96-2633 Revised Discrete Gust Load Design Requirements
[Federal Register Volume 61, Number 28 (Friday, February 9, 1996)]
[Rules and Regulations]
[Pages 5218-5222]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-2633]
[[Page 5217]]
_______________________________________________________________________
Part V
Department of Transportation
_______________________________________________________________________
Federal Aviation Administration
_______________________________________________________________________
14 CFR Part 25
Revised Discrete Gust Load Design Requirements; Final Rule
Federal Register / Vol. 61, No. 28 / Friday, February 9, 1996 / Rules
and Regulations
[[Page 5218]]
DEPARTMENT OF TRANSPORTATION
Federal Aviation Administration
14 CFR Part 25
[Docket No. 27902; Amdt. No. 25-86]
RIN 2120-AF27
Revised Discrete Gust Load Design Requirements
AGENCY: Federal Aviation Administration (FAA), DOT.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: This amendment revises the gust load design requirements for
transport category airplanes. This amendment replaces the current
discrete gust requirement with a new requirement for a discrete tuned
gust; modifies the method of establishing the design airspeed for
maximum gust intensity; and provides for an operational rough air
speed. These changes are made in order to provide a more rational basis
of accounting for the aerodynamic and structural dynamic
characteristics of the airplane. These changes also provide for
harmonization of the discrete gust requirements with the Joint Aviation
Requirements (JAR) of Europe as recently amended.
EFFECTIVE DATE: March 11, 1996.
FOR FURTHER INFORMATION CONTACT:
James Haynes, Airframe and Propulsion Branch, ANM-112, Transport
Airplane Directorate, Aircraft Certification Service, FAA, 1601 Lind
Avenue SW., Renton, WA 98055-4056; telephone (206) 227-2131.
SUPPLEMENTARY INFORMATION:
Background
The National Advisory Committee for Aeronautics (NACA), the
predecessor of the National Aeronautics and Space Administration
(NASA), began an inflight gust measurement program in 1933 to assist in
the refinement of gust load design criteria. Using unsophisticated
analog equipment, that program resulted in the development of the
improved design requirements for gust loads that were issued in part 04
of the Civil Aeronautics Regulations (CAR) in the 1940's. The
corresponding Civil Aeronautics Manual (CAM) 04 provided a simplified
formula from which to derive the design gust loads from the specified
design gust velocities. These criteria were based on an analytical
encounter of the airplane with a discrete ramp-shaped gust with a
gradient distance (the distance necessary for the gust to build to a
peak) of 10 times the mean chord length of the airplane wing. An
alleviation factor, calculated from wing loading, was provided in order
to account for the relieving effects of rigid body motion of the
airplane as it penetrated the gust. With the development of the VGH
(velocity, load factor, height) recorder in 1946, NASA began collecting
a large quantity of gust load data on many types of aircraft in airline
service. Although that program was terminated for transport airline
operations in 1971, the data provided additional insight into the
nature of gusts in the atmosphere, and resulted in significant changes
to the gust load design requirements. The evolution of the discrete
gust design criteria from part 04 through part 4b of the CAR to current
part 25 of Title 14 of the Code of Federal Regulations (CFR) (which
contains the design requirements for transport category airplanes)
resulted in the establishment of a prescribed gust shape with a
specific gust gradient distance and increased peak gust design
velocities. The prescribed shape was a ``one-minus-cosine'' gust shape
with a specified gust gradient distance of 12.5 times the mean chord
length of the airplane wing. The gust gradient distance, for that
particular shape, was equal to one-half the total gust length. A
simplified analytical method similar to the methodology of CAM 04 was
provided along with an improved alleviation factor that accounted for
unsteady aerodynamic forces, gust shape, and the airplane rigid body
vertical response.
The increasing speed, size, and structural flexibility of transport
airplanes resulted in the need to consider not only the rigid body
response of the airplane, but also structural dynamic response and the
effects of structural deformation on the aerodynamic parameters. Early
attempts to account for structural flexibility led to a ``tuned'' gust
approach in which the analysis assumed a flexible airplane encountering
gusts with various gradient distances in order to find the most
critical gust gradient distance for use in design for each major
component. A tuned discrete gust approach became a requirement for
compliance with the British Civil Airworthiness Requirements.
Another method of accounting for the structural dynamic effects of
the airplane involved the power spectral density (PSD) analysis
technique which accounted for the statistical distribution of gusts in
continuous turbulence in conjunction with the aeroelastic and
structural dynamic characteristics of the airplane. In the 1960's, the
Federal Aviation Administration (FAA) awarded study contracts to Boeing
and Lockheed for the purpose of assisting the FAA in developing the PSD
gust methodology into continuous gust design criteria with analytical
procedures. The final PSD continuous turbulence criteria were based on
those studies and were codified in Appendix G to part 25 in 1980.
Recognizing that the nature of gusts was not completely defined,
and that individual discrete gusts might exist outside the normal
statistical distribution of gusts in continuous turbulence, the FAA
retained the existing criteria for discrete gusts in addition to the
new requirement for continuous turbulence. The current discrete gust
criteria in Subpart C of part 25 require the loads to be analytically
developed assuming the airplane encounters a gust with a fixed gradient
distance of 12.5 mean chord lengths. For application of the current
criteria, it is generally assumed that the airplane is rigid in
determining the dynamic response to the gust while the effects of wing
elastic deflection on wing static lift parameters are normally taken
into account. The minimum value of the airplane design speed for
maximum gust intensity, VB, is also established from the discrete
gust criteria.
Recent flight measurement efforts by FAA and NASA have been aimed
at utilizing measurements from the digital flight data recorders (DFDR)
to derive gust load design information for airline transport airplanes.
The Civil Aviation Authority (CAA) of the United Kingdom has also been
conducting a comprehensive DFDR gust measurement program for transport
airplanes in airline service. The program, called CAADRP (Civil
Aircraft Airworthiness Data Recording Program), uses data sampling
rates that allow the measurement of a wide range of gust gradient
distances. The CAADRP program is still continuing and has resulted in
an extensive collection of reliable gust data.
In 1988, the FAA, in cooperation with the JAA and organizations
representing the American and European aerospace industries, began a
process to harmonize the airworthiness requirements of the United
States and the airworthiness requirements of Europe in regard to gust
requirements. The objective was to achieve common requirements for the
certification of transport airplanes without a substantive change in
the level of safety provided by the regulations. Other airworthiness
authorities such as Transport Canada have also participated in this
process.
In 1992, the harmonization effort was undertaken by the Aviation
Regulatory Advisory Committee (ARAC). A working group of industry and
[[Page 5219]]
government structural loads specialists of Europe, the United States,
and Canada was chartered by notice in the Federal Register (58 FR
13819, March 15, 1993) to harmonize certain specific sections of part
25, including the requirements related to discrete gusts. The
harmonization task concerning discrete gusts was completed by the
working group and recommendations were submitted to FAA by letter dated
October 15, 1993. The FAA concurred with the recommendations and
proposed them in Notice of Proposed Rulemaking (NPRM) No. 94-29 which
was published in the Federal Register on September 16, 1994, (59 FR
47756).
Discussion of Comments
Comments were received from domestic and foreign aviation
manufacturers and foreign airworthiness authorities. The majority of
the commenters agreed with the proposal and recommended its adoption.
However, some commenters disagreed substantially with the proposal
while providing alternative proposals that appeared to merit further
consideration by the Aviation Rulemaking Advisory Committee. Therefore
the FAA tasked the ARAC Loads and Dynamics Working Group by notice in
the Federal Register (60 FR 18874, April 13, 1995) to consider the
comments and provide recommendations for the disposition of the
comments along with any recommendations for changes to the proposal.
The disposition of comments that follows is based on the recommendation
submitted to the FAA by ARAC on July 14, 1995.
One commenter suggests that the new method for calculating the
minimum VB results in lower values at altitude than the current
method provided in the Joint Aviation Requirements (JAR) and could
provide unrealistic margins above the stalling speed. The FAA
disagrees. The commenter provides no data or other information that
shows the new VB calculations to be unrealistic. The new method
for calculating the minimum VB is approximately the same as in the
current FAR and JAR; the main difference being that revised gust speeds
are used in the calculation. These gust speeds are based on actual
measurements in aircraft operation and are considered to result in a
realistic and conservative VB speed, even if it is somewhat lower
than the current requirements at some altitudes. In addition, a new
operational rough air speed, VRA, is provided in order to ensure
adequate stall margins while operating in rough air. As part of the
effort to harmonize the airworthiness requirements, the JAA is also
considering adopting this method of calculating the minimum VB
speeds. This commenter, along with several other, also points out an
error in the formula for the design speed for maximum gust intensity,
VB, in Sec. 25.335(d) and this error has been corrected.
One commenter suggests that the proposed tuned gust criteria do not
fully account for the dynamic response of the airplane and therefore
could produce unconservative results and seriously underpredict the
gust design loads. The commenter suggests that the proposal be replaced
by an entirely new method of accounting for discrete gusts. This method
is known in the industry as the statistical discrete gust method (SDG).
In response to the task defined in the Federal Register, the ARAC Loads
and Dynamics Working Group considered the commenters comments and the
alternate proposal in considerable detail. It is recognized by the
working group that the current proposed tuned gust criteria have some
limitations and that the suggested SDG method may have some promising
applications for predicting gust loads. However, the SDG method is in a
developmental stage, and there is currently no established industry
process for using this method in predicting gust design loads. The FAA
will retain the commenters proposal for possible consideration in
future rulemaking actions. In response to the commenters specific
concerns, neither ARAC nor the FAA agree that the tuned gust method
will result in unconservative design loads. In addition, for the
extreme gust gradient distances where the commenter questions the
adequacy of the tuned gust method to fully account for dynamic
response, the FAA considers that the additional continuous gust
criteria of Sec. 25.341(b) will compensate for any possible
deficiencies. The commenter provides some comparisons of loads produced
by the SDG method with the results of the proposed tuned gust method.
These results show no significant differences in overall load levels
when all factors are considered, and in some cases the SDG method
actually provided lower design loads. Therefore, except for an
editorial correction to the mathematical equation noted above, the
amendment is adopted as proposed.
Regulatory Evaluation Summary
Regulatory Evaluation, Regulatory Flexibility Determination, and Trade
Impact Assessment
Changes to federal regulations must undergo several economic
analyses. First, Executive Order 12866 directs Federal agencies to
promulgate new regulations or modify existing regulations only if the
potential benefits to society justify its costs. Second, the Regulatory
Flexibility Act of 1980 requires agencies to analyze the economic
impact of regulatory changes on small entities. Finally, the Office of
Management and Budget directs agencies to assess the effects of
regulatory changes on international trade. In conducting these
assessments, the FAA has determined that this rule: (1) will generate
benefits exceeding its costs and is not ``significant'' as defined in
Executive Order 12866; (2) is not ``significant'' as defined in DOT's
Policies and Procedures; (3) will not have a significant impact on a
substantial number of small entities; and (4) will not constitute a
barrier to international trade. These analyses, available in the
docket, are summarized below.
Costs and Benefits
The changes will have economic consequences. The costs will be the
incremental costs of meeting the tuned discrete gust requirements
rather than the current static discrete gust requirements. The benefits
will be the cost savings from not meeting two different sets of
discrete gust requirements, i.e., the requirements in the current FAR
and the requirements in the JAR. In order to sell their transport
category airplanes in a global marketplace, manufacturers usually
certify their products under both sets of regulations.
Industry sources provided information on the additional costs and
cost savings that would result from the rule. Based on this
information, a range of representative certification costs and savings
are shown below. The costs and savings per certification are those
related to meeting discrete gust load requirements, including related
provisions of the final rule.
Per Certification Costs and Savings Associated With Revised Discrete
Gust Load Requirements
[in thousands of dollars]
Current FAA certification requirement costs............. $29-$115
Current JAA certification requirement costs............. $70-$145
Current joint certification requirement costs........... $100-$150
Revised FAA certification requirement costs............. $70-$145
[[Page 5220]]
Revised joint certification requirement costs........... $70-$145
Savings (current joint certification costs minus revised
joint certification costs)............................. $5-$30
The costs and cost savings of specific certifications may vary from
these estimates. In all cases where a manufacturer seeks both FAA and
JAA certification, however, the cost savings realized through
harmonized requirements will outweigh the expected incremental costs of
the rule. The FAA did not receive comments concerning this
quantification of costs during the comment period; therefore, the FAA
holds that these are representative costs and savings.
Regulatory Flexibility Determination
The Regulatory Flexibility Act of 1980 (RFA) was enacted by
Congress to ensure that small entities are not unnecessarily and
disproportionately burdened by Federal regulations. The RFA requires
agencies to review rules which may have ``a significant economic impact
on a substantial number of small entities.'' FAA Order 2100.14A
outlines FAA's procedures and criteria for implementing the RFA.
An aircraft manufacturer must employ 75 or fewer employees to be
designated as a ``small'' entity. A substantial number of small
entities is defined as a number that is 11 or more and which is more
than one-third of the small entities subject to a proposed or final
rule. None of the manufacturers of transport category airplanes qualify
as small entities under this definition. Therefore, the final rule will
not have a significant economic impact on a substantial number of small
entities.
International Trade Impact Assessment
The rule will not constitute a barrier to international trade,
including the export of American goods and services to foreign
countries and the import of foreign goods and services into the United
States. The discrete gust load requirements in this rule will harmonize
with those of the JAA and will, in fact, lessen the restraints on
trade.
Federalism Implications
The regulations proposed herein would 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 level of government. Thus, in
accordance with Executive Order 12612, it is determined that this
proposal does not have sufficient federalism implications to warrant
the preparation of a Federalism Assessment.
Conclusion
Because the proposed changes to the gust design criteria are not
expected to result in a substantial economic cost, the FAA has
determined that this proposed regulation would not be significant under
Executive Order 12866. Because this is an issue that has not promoted a
great deal of public concern, the FAA has determined that this action
is not significant under DOT Regulatory Policies and Procedures (44 FR
11034; February 25, 1979). In addition, since there are no small
entities affected by this rulemaking, the FAA certifies that the rule
would not have a significant economic impact, positive or negative, on
a substantial number of small entities under the criteria of the
Regulatory Flexibility Act, since none would be affected. A copy of the
regulatory evaluation prepared for this project may be examined in the
Rules Docket or obtained fro the person identified under the caption
FOR FURTHER INFORMATION CONTACT.
List of Subjects in 14 CFR Part 25
Air transportation, Aircraft, Aviation safety, Safety, Gusts.
The Amendments
In consideration of the foregoing, the Federal Aviation
Administration (FAA) amends 14 CFR Part 25 of the Federal Aviation
Regulations (FAR) as follows:
PART 25--AIRWORTHINESS STANDARDS: TRANSPORT CATEGORY AIRPLANES
1. The authority citation for part 25 is revised to read as
follows:
Authority: 49 U.S.C. 106(g), 40113, 44701, 44702 and 44704.
Sec. 25.305 [Amended]
2. By amending Sec. 25.305 by removing and reserving paragraph (d).
3. By amending Sec. 25.321 by adding new paragraphs (c) and (d) to
read as follows:
Sec. 25.321 General.
* * * * *
(c) Enough points on and within the boundaries of the design
envelope must be investigated to ensure that the maximum load for each
part of the airplane structure is obtained.
(d) The significant forces acting on the airplane must be placed in
equilibrium in a rational or conservative manner. The linear inertia
forces must be considered in equilibrium with the thrust and all
aerodynamic loads, while the angular (pitching) inertia forces must be
considered in equilibrium with thrust and all aerodynamic moments,
including moments due to loads on components such as tail surfaces and
nacelles. Critical thrust values in the range from zero to maximum
continuous thrust must be considered.
4. By amending Sec. 25.331 by revising the title and paragraph (a)
introductory text, by removing paragraphs (a) (1) and (2) and
redesignating paragraphs (a) (3) and (4) as (a) (1) and (2)
respectively and revising them to read as set forth below, and by
removing paragraph (d).
Sec. 25.331 Symmetric maneuvering conditions.
(a) Procedure. For the analysis of the maneuvering flight
conditions specified in paragraphs (b) and (c) of this section, the
following provisions apply:
(1) Where sudden displacement of a control is specified, the
assumed rate of control surface displacement may not be less than the
rate that could be applied by the pilot through the control system.
(2) In determining elevator angles and chordwise load distribution
in the maneuvering conditions of paragraphs (b) and (c) of this
section, the effect of corresponding pitching velocities must be taken
into account. The in-trim and out-of-trim flight conditions specified
in Sec. 25.255 must be considered.
* * * * *
5. By amending Sec. 25.333 by revising the title and paragraph (a)
to read as follows, and by removing paragraph (c).
Sec. 25.333 Flight maneuvering envelope.
(a) General. The strength requirements must be met at each
combination of airspeed and load factor on and within the boundaries of
the representative maneuvering envelope (V-n diagram) of paragraph (b)
of this section. This envelope must also be used in determining the
airplane structural operating limitations as specified in Sec. 25.1501.
* * * * *
6. By amending Sec. 25.335 by revising paragraph (d) to read as
follows:
Sec. 25.335 Design airspeeds.
* * * * *
(d) Design speed for maximum gust intensity, VB.
(1) VB may not be less than
[[Page 5221]]
[GRAPHIC] [TIFF OMMITTED] TR09FE96.016
where--
VS1=the 1-g stalling speed based on CNAmax with the flaps
retracted at the particular weight under consideration;
Vc=design cruise speed (knots equivalent airspeed);
Uref=the reference gust velocity (feet per second equivalent
airspeed) from Sec. 25.341(a)(5)(i);
w=average wing loading (pounds per square foot) at the particular
weight under consideration.
[GRAPHIC] [TIFF OMMITTED] TR09FE96.017
=density of air (slugs/ft3);
c=mean geometric chord of the wing (feet);
g=acceleration due to gravity (ft/sec2);
a=slope of the airplane normal force coefficient curve, CNA per
radian;
(2) At altitudes where VC is limited by Mach number--
(i) VB may be chosen to provide an optimum margin between low
and high speed buffet boundaries; and,
(ii) VB need not be greater than VC.
* * * * *
7. By revising Sec. 25.341 to read as follows:
Sec. 25.341 Gust and turbulence loads.
(a) Discrete Gust Design Criteria. The airplane is assumed to be
subjected to symmetrical vertical and lateral gusts in level flight.
Limit gust loads must be determined in accordance with the provisions:
(1) Loads on each part of the structure must be determined by
dynamic analysis. The analysis must take into account unsteady
aerodynamic characteristics and all significant structural degrees of
freedom including rigid body motions.
(2) The shape of the gust must be:
[GRAPHIC] [TIFF OMMITTED] TR09FE96.018
for 0 s 2H
where--
s=distance penetrated into the gust (feet);
Uds=the design gust velocity in equivalent airspeed specified in
paragraph (a)(4) of this section; and
H=the gust gradient which is the distance (feet) parallel to the
airplane's flight path for the gust to reach its peak velocity.
(3) A sufficient number of gust gradient distances in the range 30
feet to 350 feet must be investigated to find the critical response for
each load quantity.
(4) The design gust velocity must be:
[GRAPHIC] [TIFF OMMITTED] TR09FE96.019
where--
Uref=the reference gust velocity in equivalent airspeed defined in
paragraph (a)(5) of this section.
Fg=the flight profile alleviation factor defined in paragraph
(a)(6) of this section.
(5) The following reference gust velocities apply:
(i) At the airplane design speed VC: Positive and negative
gusts with reference gust velocities of 56.0 ft/sec EAS must be
considered at sea level. The reference gust velocity may be reduced
linearly from 56.0 ft/sec EAS at sea level to 44.0 ft/sec EAS at 15000
feet. The reference gust velocity may be further reduced linearly from
44.0 ft/sec EAS at 15000 feet to 26.0 ft/sec EAS at 50000 feet.
(ii) At the airplane design speed VD: The reference gust
velocity must be 0.5 times the value obtained under
Sec. 25.341(a)(5)(i).
(6) The flight profile alleviation factor, Fg, must be
increased linearly from the sea level value to a value of 1.0 at the
maximum operating altitude defined in Sec. 25.1527. At sea level, the
flight profile alleviation factor is determined by the following
equation:
[GRAPHIC] [TIFF OMMITTED] TR09FE96.020
Zmo=Maximum operating altitude defined in Sec. 25.1527.
(7) When a stability augmentation system is included in the
analysis, the effect of any significant system nonlinearities should be
accounted for when deriving limit loads from limit gust conditions.
(b) Continuous Gust Design Criteria. The dynamic response of the
airplane to vertical and lateral continuous turbulence must be taken
into account. The continuous gust design criteria of Appendix G of this
part must be used to establish the dynamic response unless more
rational criteria are shown.
8. By amending Sec. 25.343 by revising paragraph (b)(1)(ii) to read
as follows:
Sec. 25.343 Design fuel and oil loads.
(a) * * *
(b) * * *
(1) * * *
(ii) The gust conditions of Sec. 25.341(a) but assuming 85% of the
design velocities prescribed in Sec. 25.341(a)(4).
* * * * *
9. By amending Sec. 25.345 by revising paragraphs (a) and (c) to
read as follows:
Sec. 25.345 High lift devices.
(a) If wing flaps are to be used during takeoff, approach, or
landing, at the design flap speeds established for these stages of
flight under Sec. 25.335(e) and with the wing flaps in the
corresponding positions, the airplane is assumed to be subjected to
symmetrical maneuvers and gusts. The resulting limit loads must
correspond to the conditions determined as follows:
(1) Maneuvering to a positive limit load factor of 2.0; and
(2) Positive and negative gusts of 25 ft/sec EAS acting normal to
the flight path in level flight. Gust loads resulting on each part of
the structure must be determined by rational analysis. The analysis
must take into account the unsteady aerodynamic characteristics and
rigid body motions of the aircraft. The shape of the gust must be as
described in Sec. 25.341(a)(2) except that--
Uds=25 ft/sec EAS;
H=12.5 c; and
c=mean geometric chord of the wing (feet).
(b) * * *
(c) If flaps or other high lift devices are to be used in en route
conditions, and with flaps in the appropriate position at speeds up to
the flap design speed chosen for these conditions, the airplane is
assumed to be subjected to symmetrical maneuvers and gusts within the
range determined by--
(1) Maneuvering to a positive limit load factor as prescribed in
Sec. 25.337(b); and
(2) The discrete vertical gust criteria in Sec. 25.341(a).
* * * * *
10. By amending Sec. 25.349 by revising the introductory text and
paragraph (b) to read as follows:
[[Page 5222]]
Sec. 25.349 Rolling conditions.
The airplane must be designed for loads resulting from the rolling
conditions specified in paragraphs (a) and (b) of this section.
Unbalanced aerodynamic moments about the center of gravity must be
reacted in a rational or conservative manner, considering the principal
masses furnishing the reaching inertia fores.
(a) * * *
(b) Unsymmetrical gusts. The airplane is assumed to be subjected to
unsymmetrical vertical gusts in level flight. The resulting limit loads
must be determined from either the wing maximum airload derived
directly from Sec. 25.341(a), or the wing maximum airload derived
indirectly from the vertical load factor calculated from
Sec. 25.341(a). It must be assumed that 100 percent of the wing air
load acts on one side of the airplane and 80 percent of the wing air
load acts on the other side.
11. By amending Sec. 25.351 by revising the introductory text and
by removing and reserving paragraph (b).
Sec. 25.351 Yawing conditions.
The airplane must be designed for loads resulting from the
conditions specified in paragraph (a) of this section. Unbalanced
aerodynamic moments about the center of gravity must be reacted in a
rational or conservative manner considering the principal masses
furnishing the reacting inertia forces:
* * * * *
12. By revising Sec. 25.371 to read as follows:
Sec. 25.371 Gyroscopic loads.
The structure supporting the engines and the auxiliary power units
must be designed for the gyroscopic loads associated with the
conditions specified in Secs. 25.331, 25.341(a), 25.349 and 25.351 with
the engine or auxiliary power units at maximum continuous rpm.
13. By amending Sec. 25.373 by revising paragraph (a) to read as
follows:
Sec. 25.373 Speed control devices.
* * * * *
(a) The airplane must be designed for the symmetrical maneuvers
prescribed in Sec. 25.333 and Sec. 25.337, the yawing maneuvers
prescribed in Sec. 25.351, and the vertical and later gust conditions
prescribed in Sec. 25.341(a), at each setting and the maximum speed
associated with that setting; and
* * * * *
14. By amending Sec. 25.391 by revising the introductory text and
paragraph (e) to read as follows:
Sec. 25.391 Control surface loads: general.
The control surfaces must be designed for the limit loads resulting
from the flight conditions in Secs. 25.331, 25.341(a), 25.349 and
25.351 and the ground gust conditions in Sec. 25.415, considering the
requirements for--
* * * * *
(e) Auxiliary aerodynamic surfaces, in Sec. 25.445.
15. By revising Sec. 25.427 to read as follows:
Sec. 25.427 Unsymmetrical loads.
(a) In designing the airplane for lateral gust, yaw maneuver and
roll maneuver conditions, account must be taken of unsymmetrical loads
on the empennage arising from effects such as slipstream and
aerodynamic interference with the wing, vertical fin and other
aerodynamic surfaces.
(b) The horizontal tail must be assumed to be subjected to
unsymmetrical loading conditions determined as follows:
(1) 100 percent of the maximum loading from the symmetrical
maneuver conditions of Sec. 25.331 and the vertical gust conditions of
Sec. 25.341(a) acting separately on the surface on one side of the
plane of symmetry; and
(2) 80 percent of these loadings acting on the other side.
(c) For empennage arrangements where the horizontal tail surfaces
have dihedral angles greater than plus or minus 10 degrees, or are
supported by the vertical tail surfaces, the surfaces and the
supporting structure must be designed for gust velocities specified in
Sec. 25.341(a) acting in any orientation at right angles to the flight
path.
(d) Unsymmetrical loading on the empennage arising from buffet
conditions of Sec. 25.305(e) must be taken into account.
16. By amending Sec. 25.445 by revising the title and revising
paragraph (a) to read as follows:
Sec. 25.445 Auxiliary aerodynamic surfaces.
(a) When significant, the aerodynamic influence between auxiliary
aerodynamic surfaces, such as outboard fins and winglets, and their
supporting aerodynamic surfaces, must be taken into account for all
loading conditions including pitch, roll, and yaw maneuvers, and gusts
as specified in Sec. 25.341(a) acting at any orientation at right
angles to the flight path.
* * * * *
17. By amending Sec. 25.571 by revising paragraphs (b)(2) and
(b)(3) to read as follows:
Sec. 25.571 Damage-tolerance and fatigue evaluation of structure.
* * * * *
(b) * * *
(2) The limit gust conditions specified in Sec. 25.341 at the
specified speeds up to VC and in Sec. 25.345.
(3) The limit rolling conditions specified in Sec. 25.349 and the
limit unsymmetrical conditions specified in Secs. 25.367 and 25.427 (a)
through (c), at speeds up to VC.
* * * * *
18. By adding a new Sec. 25.1517 to read as follows:
Sec. 25.1517 Rough air speed, VRA.
A rough air speed, VRA, for use as the recommended turbulence
penetration airspeed in Sec. 25.1585(a)(8), must be established,
which--
(1) Is not greater than the design airspeed for maximum gust
intensity, selected for VB; and
(2) Is not less than the minimum value of VB specified in
Sec. 25.335(d); and
(3) Is sufficiently less than VMO to ensure that likely speed
variation during rough air encounters will not cause the overspeed
warning to operate too frequently. In the absence of a rational
investigation substantiating the use of other values, VRA must be
less than VMO--35 knots (TAS).
Issued in Washington, DC, on February 2, 1996.
David R. Hinson,
Administrator.
[FR Doc. 96-2633 Filed 2-8-96; 8:45 am]
BILLING CODE 4910-13-M
Complete official Federal Register PDF
FR Doc. 96-2615 Reporting Requirements for International Traffic Data
[Federal Register Volume 61, Number 28 (Friday, February 9, 1996)]
[Rules and Regulations]
[Pages 4918-4937]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-2615]
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FEDERAL COMMUNICATIONS COMMISSION
47 CFR Part 43
[DA 95-1248 ]
Reporting Requirements for International Traffic Data
AGENCY: Federal Communications Commission.
ACTION: Revised manual.
-----------------------------------------------------------------------
SUMMARY: The Common Carrier Bureau adopted a revised filing manual for
international traffic data. The new manual has a separate section that
consolidates the filing requirements for pure resale carriers. While
the new manual did not change these requirements, the consolidated
section will make it easier for small businesses which primarily
provide pure resale service to report. The new manual did change the
reporting requirements for facilities based traffic, which is primarily
provided by large businesses. In order to protect U.S. carriers'
interests, the new manual allows carriers to report some information on
a proprietary basis. Both facilities-based and pure resale carriers
must use this manual to report message counts, minute counts, gross
revenues, international settlements amounts, and retained revenues for
international communications services. The manual was adopted June 6,
1995 and approved by OMB.
DATES: Traffic data for the prior calendar year must be filed by July
31.
ADDRESSES: The original transmittal letter only must be filed with the
Secretary, Federal Communications Commission, Washington, DC 20554.
Traffic data must be filed with the FCC Common Carrier Bureau, Industry
Analysis Division, Mail Stop 1600 F, 1919 M Street NW., Washington,
D.C. 20554 and with the FCC's Contract Copier (Currently International
Transcription Services, Inc.), Room 246, 1919 M Street NW., Washington
D.C. 20554.
FOR FURTHER INFORMATION CONTACT: Linda Blake or Jim Lande, Common
Carrier Bureau, Industry Analysis Division, (202) 418-0940.
SUPPLEMENTARY INFORMATION:
FCC Report 43.61
Approved by OMB 3060-0106.
Expires 08/31/98.
Estimated Average Burden Hours Per Response: 24 Hours.
Manual for Filing Section 43.61 Data in Accordance With the FCC's Rules
and Regulations
June 1995.
Notice to Individuals
Section 43.61 of the Commission's Rules requires all carriers
providing international service to provide traffic and revenue data.
The collection of Section 43.61 traffic data stems from the
Commission's authority under the Communications Act of 1934, Sections
4, 48, 48 Stat. 1066, as amended, 47 U.S.C. 154 unless otherwise noted.
Interpret or apply sections 211, 219, 48 Stat. 1073, 1077, as amended;
47 U.S.C. 211, 219, 220.
The foregoing Notice is required by the Privacy Act of 1974, Pub.L.
93.579, December 31, 1974, 5 U.S.C. 552(a)(e)(3), and the Paperwork
Reduction Act of 1980. Pub.L. 96-511, section 3504(c)(3).
Public reporting burden for this collection of information is
estimated to average 24 hours per response including the time for
reviewing instructions, searching existing data sources, gathering and
maintaining the data needed, and completing and reviewing the
collection of information. Send comments regarding this burden estimate
or any other aspect of this collection of information, including
[[Page 4919]]
suggestions for reducing the reporting burden to the Federal
Communications Commission, Office of Managing Director, Washington, DC
20554.
Contents
Introduction
Section 1--Definitions and General Information
A. Carriers that must file International Telecommunications Service
Data
B. International Points used for Reporting Purposes
C. Service Categories Used for Reporting Data
1. International Message Telephone Service
2. International Message Telegraph Service
3. International Telex Service
4. International Private Line Service
5. Miscellaneous or Other International Service
D. Filing Country-by-Country data for Each U.S. Point Served
1. Filing by U.S. Point
2. Filing data on a Country-by Country Basis
E. Billing Codes
1. Definition of Facilities-Based, Facilities Resale, and Pure
Resale Service
2. Switched and Miscellaneous or Other Services
3. Private Line Service
4. Table of Billing Codes
F. Measurement of Traffic and Revenues
1. Message Services
a. Message Service Traffic Measures
b. Message Service Revenue and Settlement Information
2. Private Line Services
a. Number of Leased Circuits and Number of Equivalent Voice
Grade Circuits
b. Leased Circuit Revenue
3. Miscellaneous or Other International Services
4. Data Requirements Summarized by Service
G. Filing Procedures
Section 2--Diskette Format and Coding Instructions
A. Media and File Name for Traffic Data filed on Diskette
B. Record Formats
C. Filing Carrier Name Field
D. Year of Data Field
E. U.S. Point Served Field
F. International Point or Region Field
G. Service Code Field
H. Footnote Code Field and Comment Records
I. Description Field
J. Billing Code Field
K. Data elements #1 through #5 (Traffic, circuits, revenue and
settlements information)
L. Example of a 43.61 report for a facilities-based carrier
Section 3--Simplified Instructions for Pure Resale Carriers
A. Definitions and Data to be Filed
B. Filing Procedures
C. Example of a 43.61 Report for Pure Resale Carrier
D. Example Check Sheet for International Points Served
Introduction
This manual is organized in three sections. Section 1 defines
international telecommunications service, explains the service
categories, defines the data requirements, and contains filing
instructions. Section 2 defines a computerized format, and explains
specialized codes that facilities-based and facilities resale carriers
must use for reporting data. Section 3 summarizes reporting
requirements for pure resale switched services. Most pure resale
carriers should be able to use Section 3 without reference to other
parts of the manual.
Section 43.61(a) of the FCC's Rules requires that each common
carrier providing international telecommunications service between any
U.S. point and any non U.S. point must file traffic and revenue
data.1 This includes foreign carriers that serve a U.S. point as
well as private carriers and carriers that provide non-tariffed
international communications services. Section 43.61(b) mandates that
carriers provide traffic and revenue data for each and every
international service. Section 43.61(d) specifies that the traffic and
revenue data must be furnished in accordance with this manual.
\1\ 47 CFR 43.61.
---------------------------------------------------------------------------
The 43.61 international traffic reports contain traffic and revenue
information for service between the United States and international
points. The data are summarized in FCC statistical reports, are used to
monitor the development and competitiveness of international
telecommunications markets, and are used in the facilities planning
process. In addition, the FCC uses this information to develop and
support United States positions in discussions with foreign governments
and international standards organizations, such as the International
Telecommunications Union.
The manual contains reporting requirements for facilities-based,
facilities resale and pure resale services.2 Facilities-based
services are provided by a carrier utilizing international circuits in
which it has an ownership interest. Facilities Resale services are
provided by a carrier utilizing non-switched international circuits
leased from other reporting international carriers. Carriers must
provide detailed data for both the facilities-based and facilities
resale services that they provide. Pure resale services are switched
services that are provided by reselling the international switched
services of other carriers. Pure resale carriers may own domestic
switches and circuits, but rely on other carriers to carry switched
traffic between the United States and foreign points. Carriers must
separately report facilities-based, facilities resale, and pure resale
service. Section 3 contains simplified reporting requirements for pure
resale carriers. Only pure resale switched service is accorded
simplified reporting requirements.
\2\ The definitions herein of facilities-based and facilities
resale service are solely intended to govern reporting of
international traffic data, and are not intended for any other
purpose.
---------------------------------------------------------------------------
The public reporting burden for the revised manual is estimated to
average 24 hours including the time for reviewing instructions,
searching existing data sources, gathering and maintaining the data
needed, preparing the report, and reviewing the collection of
information. The 24 hours is a weighted average response time based on
80 hours for 30 facilities-based carriers and 10 hours for 120 pure
resellers. These figures represent the incremental reporting burden and
do not include the time that carriers spend maintaining data for other
purposes. Send comments regarding this burden estimate or any other
aspect of this collection of information, including suggestions for
reducing the reporting burden to the Federal Communications Commission,
Office of Managing Director, Washington, DC 20554.
Section 1--Definitions and General Information
A. Carriers That Must File International Telecommunications Service
Data
Section 43.61(a) of the FCC's Rules requires that each common
carrier providing international telecommunications service between any
U.S. point and any non U.S. point must file traffic and revenue data.
This includes foreign carriers that serve a U.S. point as well as
private carriers and carriers that provide non-tariffed international
communications services. Section 43.61(b) mandates that carriers
provide traffic and revenue data for each and every international
service. Section 43.61(d) specifies that the traffic and revenue data
must be furnished in accordance with this manual.
International traffic and revenue data must be reported in
accordance with Section 43.61 of the Rules. Section 43.61(a) states
that ``[e]ach common carrier engaged in providing international
telecommunications service between the area comprising the continental
United States, Alaska, Hawaii, and off-shore U.S. points and any
country or point outside that area must file a report with the
Commission not later than July 31 of each year for
[[Page 4920]]
service actually provided in the preceding calendar year.''
Telecommunications services allow the public to communicate by means of
electronic signals transmitted by wire, radio, visual or other
electromagnetic systems and can entail the carriage of traffic or the
provision of dedicated communications channels. A service channel or
circuit is a path for electronic transmission of information between
two or more points. All common carriers must file international traffic
data, regardless of whether service is offered pursuant to tariff.
Enhanced services as defined by section 64.702 of the Commission's
rules are exempt from the section 43.61 filing requirements. Enhanced
services incorporate code and protocol conversion, information
provision or information processing as a fundamental part of the
service purchased by the customer. Simple packet switching, for
example, is not considered to be an enhanced service despite the fact
that the network temporarily stores packets. A packet switching service
that included code and protocol conversion, however, would be
considered to be enhanced unless packet switching was priced separately
from code and protocol conversion.
For the purpose of reporting international traffic data, an
international carrier is any entity that offers international
telecommunications service to non-affiliated entities for compensation.
For example, a cellular carrier that resells the international switched
service of another carrier must file Section 43.61 traffic data.
However, a cellular carrier that merely bills international service for
another carrier whose name is shown on the bill would not be considered
an international carrier even if the cellular carrier also billed for
itself the standard air time charges for the international call. The
carrier actually providing the international service would be required
to report.
B. International Points Used for Reporting Purposes
This manual defines three categories of geographic points. Domestic
U.S. points are the 50 states, the District of Columbia, and Puerto
Rico. Off-shore U.S. points include U.S. possessions such as American
Samoa, Guam, Baker Island, Howland Island, Jarvis Island, Johnston
Atoll, Kingman Reef, Midway Atoll, Navassa Island, the Northern Mariana
Islands, Palmyra Atoll, the U.S. Virgin Islands, and Wake Island. The
Domestic U.S. and Off-shore U.S. points are collectively referred to
herein as the United States or as U.S. points. All other points of the
world, including ships operating in international waters, are Foreign
points. Canada, Saint Pierre and Miquelon, and Mexico, which were not
encompassed by the older term ``overseas points'', are foreign points.
United States and foreign points are identified in the Common
Carrier Bureau Industry Analysis Division report titled International
Points used for FCC Reporting Purposes (International Points).
International Points lists world points that originate or receive
international telecommunications traffic. The report contains the
country and region codes that must be used to file section 43.61 data.
The report is published periodically and shows various classification
schemes for world points. Revisions to International Points will
reflect changes in political boundaries and the extent and operation of
international telecommunications networks. Contact the Industry
Analysis Division (202)418-0940 regarding points not listed in the
tables.
The geographic categories Domestic U.S., Off-shore U.S. and Foreign
shall be used to determine which data must be reported. Service that
both originates and terminates in Domestic U.S. points is considered to
be domestic, and should not be reported under section 43.61 of the
Rules. All other traffic for a United States point must be reported.
The following table illustrates the classification of traffic for
various pairs of points:
------------------------------------------------------------------------
Service originating and
terminating points Categorized Reporting status
------------------------------------------------------------------------
Alaska to Hawaii................ Domestic U.S. to Domestic Traffic:
Domestic U.S. not reported.
Alaska to Puerto Rico........... Domestic U.S. to Domestic Traffic:
Domestic U.S. not reported.
U.S. Virgin Islands to Puerto Off-shore U.S. to U.S. International
Rico. Domestic U.S. Traffic:
Reported.
Alaska to Guam.................. Domestic U.S. to U.S. International
Off-shore U.S. Traffic:
Reported.
Alaska to Japan................. Domestic U.S. to U.S. International
Foreign. Traffic:
Reported.
Guam to Japan................... Off-shore U.S. to U.S. International
Foreign. Traffic:
Reported.
Guam to Wake Island............. Off-shore U.S. to U.S. International
Off-shore U.S. Traffic:
Reported.
Japan to Italy via Hawaii....... Foreign to Foreign U.S. International
transiting the Traffic:
U.S. Reported.
Japan to Italy via Guam......... Foreign to Foreign U.S. International
transiting the Traffic:
U.S. Reported.
Japan to Italy via ``country Foreign to U.S. to U.S. International
beyond'' service of a U.S. Foreign. Traffic: Each leg
carrier. of call reported
as U.S. Billed.
Japan to Italy via pure resale Foreign to U.S. to U.S. International
U.S. Call-back service in Foreign. Traffic: Each leg
Hawaii. of call reported
as U.S. Billed.
Japan to Italy direct........... Foreign to Foreign Foreign Traffic:
not reported.
------------------------------------------------------------------------
The distinction between domestic and international traffic may
prove burdensome in some instances. For example, there may be instances
where customers obtain international service while using a domestic
telecommunications service. A domestic cellular service might be usable
just outside U.S. territorial waters. The cellular carrier may have no
way of knowing if its service is being used to complete an
international call. If the carrier bills such a customer at domestic
rates, the traffic should be considered incidental to domestic service,
and need not be included in Section 43.61 reports. The opposite
situation might occur where a customer uses an international maritime
service while in U.S. territorial waters. Such a call to a domestic
point would be a domestic call. It could be difficult for the carrier
to identify and remove such traffic from its international data
reports. Such traffic is incidental to international service, and may
be included in Section 43.61 reports as international traffic. Carriers
should footnote entries that might contain a significant amount of such
traffic.
C. Service Categories Used for Reporting Data
Section 43.61(b) of the FCC's Rules requires carriers to provide
traffic and revenue information for each and every international common
carrier service that they provide to the public. Enhanced services as
defined by Section 64.702 of the Rules are not common carrier services.
International services may be provided over terrestrial cable,
[[Page 4921]]
submarine cable, microwave facilities, satellite circuits, etc.
Distinctions are made based on the service provided to the customer
rather than the technology employed to provide the service. The
following service categories and definitions are provided solely to
govern the reporting of traffic and do not bear on the legality or
treatment of international services for any other purpose:
1. International Message Telephone Service
International message telephone service involves the transmission
and reception of speech over the public switched network for which a
charge is collected on a minimum charge per call or measured time
basis. Per call prices are typically calculated based on the number of
minutes or fractions of minutes. Service features, such as operator
assistance or credit card billing, may be offered as part of the
service and may give rise to additional charges. Through use of modems
and other specialized equipment, the customer can use ordinary
telephone calls for the transmission of data, video and facsimile
3 messages.
\3\ Most people associate the word facsimile with the use of
terminal equipment that sends and receives images of a page. The
electronic image is transmitted over the public switched network.
Carriers should not separate this type of traffic from other types
of international message telephone traffic. Our rules previously
required detailed data reporting for several services that are
obsolete, including one then called facsimile service. The older
facsimile service was a private line service. The facsimile lines
accommodated analog equipment that transmitted images at a rate of 3
to 6 pages per hour. Digital equipment was introduced in the late
1960's. Customers stopped using dedicated facsimile lines in the
1970's following the development of facsimile equipment that could
utilize the public switched telephone network. Any remaining
dedicated facsimile lines should be reported as private lines using
the appropriate private line category.
---------------------------------------------------------------------------
International message telephone services are generally tariffed on
a ``through'' basis from the United States to a particular foreign
point. This means that a call is charged a tariffed rate for a
particular point of destination, regardless of whether the call goes
directly to that country, or transits through some third point.
Traditionally, service is provided jointly by a U.S. international
message telephone service carrier and one or more foreign correspondent
carriers under a ``joint operating agreement''. Such agreements
typically specify the rights, duties, and legal obligations of each
correspondent; arrangements such as ``proportionate return'' which
govern the routing of traffic; and provide the accounting rate per unit
of international message telephone service traffic. The accounting rate
provides the basis for ``settling'' traffic balances, i.e. compensating
one carrier for handling the traffic of the other. However,
international message telephone service can also be provided by
facilities resale arrangements which may not entail accounting rate
agreements.
Carriers offer many types of switched network services with
different access and billing arrangements. International message
telephone service includes services with dedicated access if the calls
are routed through the public switched network. Accordingly, for
international reporting purposes, the international message telephone
service category includes traditional international message telephone
service, WATS, 800 and 900 type services, custom network services,
conference services, `country beyond' service, and similar services.
The international message telephone service category can also include
switched digital services that utilize ISDN interfaces and switched
global defined network services. International message telephone
service is reported with service code 1.
2. International Message Telegraph Service
International message telegraph service involves the transmission
and reception of record or textual matter which is not sent directly by
the sender, and for which a charge is collected on a per word basis.
International message telegraph service is reported with service code
2.
At one time carriers were required to provide separate data for
message telegraph services offered to the public, to governments, and
to press entities. Carriers should report 43.61 data that represents
totals for all types of customers.
3. International Telex Service
Telex service involves the transmission and reception of record
matter, including messages, facsimile and data, charged for on a per
minute or timed basis, for which the transmission is directly
controlled by the user over an exchange network dedicated to the
transmission of such records. Messages may be transmitted via carrier
facilities on either a direct dial or on a store and forward basis. The
telex network provides for the transmission of communications
alternately in either direction, but not in both directions
simultaneously. Such services are also referred to as teleprinter
exchange services. International telex service is reported with service
code 3.
Telegraph and Telex services are occasionally referred to as record
services.
4. International Private Line Service
Private line service is the leasing of a dedicated channel of
communications (leased circuit) for specified periods of time for the
customer's use. Leased private line circuits are typically priced by
distance, bandwidth or capacity, and other features such as line
conditioning. International private line service does not include
private circuits within the United States unless such circuits are
dedicated to the provision of international service and are provided
pursuant to international tariffs.
The international portion of the service typically begins at a
point within the United States and terminates at a connection point
halfway between the United States and the destination country. The
remaining half of the international private line from the theoretical
midpoint to the foreign destination is provided by the U.S. carrier's
foreign correspondent carrier. Each carrier bills the customer
separately for its half of the service. In actuality, although the
service is priced on the basis of a theoretical midpoint, the
international circuitry is usually provided by the U.S. and foreign
carriers jointly, with each carrier owning an undivided half-interest
in the circuits.
Carriers should not report as international private line service
data for circuits that both originate and terminate within the domestic
United States, unless those circuits are dedicated for international
service and are provided pursuant to international tariffs. In
addition, carriers should not report facilities provided under contract
to foreign carriers except to the extent that the foreign carrier is
paying for facilities from the United States to the theoretical
midpoint.
There are six categories of private line service for reporting
purposes:
------------------------------------------------------------------------
Service
code Description
------------------------------------------------------------------------
4....... Voice Circuits--provided as individual circuits.
5....... Up to 1200 bits per second (bps).
6....... 1201 bps to 9600 bps.
7....... 9601 bps to 30 Million bps (Mbps) or .01 Megahertz to 18
Megahertz, except for voice circuits.
8....... Greater than 30 Mbps to 120 Mbps or greater than 18 Megahertz
to 72 Megahertz.
9....... Greater than 120 Mbps or greater than 72 Megahertz.
------------------------------------------------------------------------
The voice grade category should only contain individual circuits
that are
[[Page 4922]]
offered to accommodate a single voice circuit. This category does not
include ISDN circuits or large capacity circuits provided as multiple
voice grade equivalent channels.
Switched and virtual private line services should not be included
in the above categories and instead should be reported separately as
Miscellaneous or Other International Services. These services are
considered to be private lines services for some purposes. However, the
reporting of revenues and circuits for switched and virtual private
line services cannot easily conform to the format specified for the
private line categories contained herein.
5. Miscellaneous or Other International Service
The final service category includes all services that are not
listed above. The category includes cablephoto service, radiophoto
service, photo transmission service and addressed press service. The
category also includes packet switched transmission service, occasional
use television, switched video, switched and virtual private line
services and some other forms of switched digital service. The category
also includes any new service that differs from services listed above.
Miscellaneous or Other international services are reported with service
code 99.
D. Filing Country-by-Country Data for Each U.S. Point Served
1. Filing by U.S. Point
Carriers must file separate data for each United States point from
which they originate and bill facilities-based or facilities resale
service. Carriers may not consolidate facilities-based or facilities
resale data for two United States points without obtaining a waiver
from the FCC. Carriers may consolidate pure resale traffic for domestic
U.S. points (the Conterminous United States, Alaska, Hawaii, and Puerto
Rico). However, carriers may not consolidate pure resale data for an
off-shore U.S. point and a domestic U.S. point, or for two off-shore
U.S. points, without obtaining a waiver from the FCC. See 47 CFR
Section 1.3.
Carriers should not include in their report U.S. points that they
do not serve.
2. Filing data on a Country-by-Country Basis
For each large U.S. point, facilities-based and facilities resale
carriers must provide country-by-country data on diskette for each
service that they provide. However, region-by-region data may be
substituted for miscellaneous services. For small U.S. points, each
carrier must report world total traffic data on diskette for each
service that they provide. All carriers, including pure resale
carriers, must file world total traffic data for each pure resale
service that they provide. Pure resale traffic need not be provided on
diskette.
Reporting Requirements for Facilities-Based and Facilities Resale
Service
------------------------------------------------------------------------
Small U.S. points: File
Large U.S. points: File country-by-country world total data \1\ on
data on diskette diskette
------------------------------------------------------------------------
Alaska.................................... American Samoa.
Conterminous U.S.......................... Baker Island.
Guam...................................... Howland Island.
Hawaii.................................... Jarvis Island.
Puerto Rico............................... Johnston Atoll.
U.S. Virgin Islands....................... Kingman Reef.
Midway Atoll.
Navassa Island.
Northern Mariana Islands.
Palmyra Atoll.
Wake Island .
------------------------------------------------------------------------
\1\ Many points on this list are not served by U.S. carriers at this
time. Carriers need not file data for points that they do not serve.
Where country-by-country reporting is required, carriers must file
separate data for each of the primary international points listed in
International Points. However:
(a) Carriers should omit points that would represent domestic
traffic. For example, a report for Alaska should not show traffic to
Hawaii. However, traffic between domestic and off-shore U.S. points
must be reported. For example, a report for Alaska should include
traffic to Guam.
(b) Carriers may consolidate traffic as indicated by the summary
codes shown in International Points. For example, Scotland has
country code 280, but also summary code 326. That summary code is
the country code for the United Kingdom. Traffic between a U.S.
point and Scotland may be reported as Scotland traffic using country
code 280 or may be included with other United Kingdom traffic and
reported using country code 326.
(c) Carriers should omit countries for which they have no
traffic.
There are no miscellaneous country codes. All traffic must be
reported to a country code associated with one of the points listed in
International Points. Contact the Industry Analysis Division of the
Common Carrier Bureau if traffic exists for an international point that
is not currently listed. The Industry Analysis Division will assign a
code for that point.
Where country-by-country reporting is required, carriers should
also file region and world totals. International Points groups all
international points into 10 regions. These regions and the reporting
codes are listed in Section 2-F below. Carriers may omit country-by-
country data for miscellaneous services, but must provide region and
world totals on diskette.
E. Billing Codes
Within a service, traffic is categorized according to the ownership
of facilities used to provide the service, and how the traffic was
billed. Carriers must use billing codes to associate traffic statistics
with a particular service type.
1. Definition of Facilities-Based, Facilities Resale, and Pure Resale
Service
In reporting data to the FCC, carriers must separate traffic on the
basis of the ownership of facilities used to provide service. Carriers
must separately report data for the three ownership categories shown
below: facilities-based, facilities resale, and pure resale. The
following definitions of facilities-based, facilities resale, and pure
resale traffic are intended solely for reporting international traffic
data, and may not be appropriate for other purposes.
Facilities-based services are those services provided using
international transmission facilities owned in whole or in part by the
carrier providing service. Facilities-based carriers use one or more
international channels of communications to provide international
telecommunications service. An international channel is a wire or radio
link that facilitates electronic communications between a United States
point and another world point. A facilities-based carrier either owns
international channels, has an ownership interest in the channel such
as an indefeasible right of use (IRU), or leases the channel from an
entity that does not report traffic, such as Comsat. Carriers must
provide detailed data for the facilities-based services that they
provide.
Facilities Resale services are provided by a carrier utilizing non-
switched international circuits leased from other reporting
international carriers. A facilities resale service is provided over
international channels which are subject to Section 43.61 reporting by
the underlying carrier. Carriers must provide detailed data for the
facilities resale services that they provide.
Pure resale services are switched services that are provided by
reselling the international switched services of other carriers. Pure
resale services are not provided to the public over the reseller's
international channels of communications. Pure resale carriers may own
domestic switches and circuits, but rely on other carriers to
[[Page 4923]]
carry switched traffic between the United States and foreign points.
2. Switched and Miscellaneous or Other Services
Carriers are required to categorize and report international
switched traffic using billing information. The primary categories are:
U.S. Billed--traffic billed by U.S. carriers which originates or
terminates in the United States, or which originates from `country
beyond' type services; Foreign Billed--traffic which originates or
terminates in the United States and is billed by a foreign or
correspondent carrier; and, Transiting--traffic that originates outside
of the United States, transits the United States, and terminates
outside of the United States, and is billed by a foreign carrier.
Within the U.S. Billed category, carriers must categorize traffic
according to whether the call was billed under a `country beyond'
arrangement, or under some other arrangement. `Country beyond' services
are provided by U.S. carriers to customers located in foreign points.
The customer initiates the call to the U.S. carrier and then provides
the destination number. The U.S. carrier then completes the call. Such
calls are typically billed using calling cards. Carriers must use
billing codes to separate `country beyond' traffic from other U.S.
billed calls. Other U.S. billed calls include international calls that
are placed in the United States and are billed to the calling number,
billed to another number in the United States, billed to a calling card
or billed by some other arrangement. Other U.S. billed calls also
include calls initiated overseas and billed to an 800 number in the
United States or billed collect to the called party. Public data may be
filed combining these call categories. The carriers proprietary filing
must use billing codes to distinguish `country beyond' traffic data
from other U.S. billed traffic data.
Note that data are not reported with sufficient granularity to
separate traffic solely on the basis of whether it originates or
terminates in the United States. The same billing code is used for
calls that are dialed directly from the United States, and for calls
that originate in a foreign point but are billed collect in the United
States by the U.S. carrier.
Not all carriers will provide all possible categories of traffic.
Carriers should file data only for billing types that they actually
provided during the year.
A carrier may aggregate all pure resale international traffic,
including traffic from call-back service. Call-back service is
described on page 38, of the manual. Carriers may not aggregate pure
resale traffic with either facilities-based or facilities resale
traffic.
Traffic between some U.S. points will be reported as U.S. billed
for the point where it is billed, and as foreign billed for the other
end of the call. For example, a sent paid call from the U.S. Virgin
Islands to Puerto Rico will be reported as a U.S. billed call by the
carrier serving the U.S. Virgin Islands, and will also be reported as a
foreign billed call by the carrier serving Puerto Rico. This would be
the case even if the same carrier served both points. In fact, the same
call would be reported three times if it originated in an off-shore
U.S. point, transited a domestic U.S. point, and terminated in another
off-shore U.S. point.
U.S. billed and foreign billed switched traffic is reported by the
foreign point in which the call originates or terminates, irrespective
of foreign points through which the call may transit. Transiting
traffic is reported for the country in which the call originates.
3. Private Line Service
International private line service typically links a location
within the United States with a location in a foreign point. The
service is provided jointly by the U.S. carrier and the foreign
correspondent carrier, and is usually accounted as if the U.S. carrier
provides service to the theoretical mid-point of the service. Thus, the
U.S. carrier tariffs a half circuit for its portion of the service, and
the foreign correspondent carrier likewise tariffs a half circuit. With
private line service, the customer billing address may be located in a
foreign country and the bill may be rendered by the foreign carrier
that provides the other half of the circuit. Even so, this service is
classified as U.S. billed because the customer has a United States
presence and the choice of billing location is arbitrary. The fact that
a foreign carrier may act as a billing agent is irrelevant. In sum,
U.S. carriers must report the portion of the service that they tariff.
Private lines are categorized by the foreign point in which the
line terminates. Facilities-based private line service should be
reported using billing code 1. Private line service provided over
resold facilities should be reported using billing code 11.
4. Table of Billing Codes
The following table provides the billing codes for switched and
private line services. Note that carriers must report separately
facilities-based, facilities resale, and pure resale traffic.
Table of Billing Codes
----------------------------------------------------------------------------------------------------------------
Type of service provision
------------------------------------------------------
Facilities based Facilities resale Pure
---------------------------------------------- resale
--------
Confidential Public Confidential Public Public
filing filing filing filing filing
----------------------------------------------------------------------------------------------------------------
SWITCHED AND MISCELLANEOUS SERVICE
U.S. Billed (Traffic Billed by reporting U.S. carriers):
Call originate in U.S. point served:
Billed to the calling number account............. 1 1 11 11 21
Billed to a calling card or other billing
arrangement..................................... 1 1 11 11 21
Calls Originate outside U.S. point served:
Billed collect to a U.S. customer................ 1 1 11 11 n.a.
Billed to a U.S. 800 service number.............. 1 1 11 11 n.a.
Billed to a calling card or other billing
arrangement..................................... 4 1 14 11 21
Foreign Billed (Traffic billed by foreign or
corresponding carrier):
Calls originate in U.S. point served:
Billed collect to a foreign customer............. 2 2 12 12 n.a.
Billed to a foreign 800 service number........... 2 2 12 12 n.a.
[[Page 4924]]
Billed to a foreign carrier calling card or other
arrangement..................................... 2 2 12 12 n.a.
Calls originate outside U.S. point served and
terminate in the U.S. point:
Billed to the calling number account............. 2 2 12 12 n.a.
Billed to a foreign carrier calling card or other
arrangement..................................... 2 2 12 12 n.a.
Transiting (Traffic that originates and terminates
outside the U.S point served):
Traffic billed by foreign or corresponding carrier:.. 3 3 13 13 n.a.
Private Line Service
All Circuits............................................. 1 1 11 11 n.a.
----------------------------------------------------------------------------------------------------------------
F. Measurement of Traffic and Revenues
This section provides guidance for measuring traffic and revenues.
Each service has unique characteristics that create special concerns.
For example, a customer who places a telephone call to a foreign
country may not be aware that the call originates in a Local Access
Transport Area (LATA), crosses a Point of Presence (POP) to the
interexchange network of an interLATA carrier, is switched through
international facilities to a foreign carrier, and is then terminated
in a foreign local exchange. The customer need not consider the various
arrangements under which several carriers share the revenue from the
call. The private line customer, on the other hand, leases a specific
amount of capacity between two specified points. The customer may use a
variety of arrangements to get traffic to and from the leased circuit
and may use the circuit for several types of communications. The
private line customer is concerned with the charges for each specific
link in its network.
These and other differences between message and private line
services lead to differences in the ways that carriers should measure
traffic and revenues. The following sections cover message and private
line services. The guidelines should be used for miscellaneous
international services as appropriate.
1. Message Services
For each message service (telephone, telegraph, and telex) carriers
must report data for each billing type--principally U.S. billed,
foreign billed, and transiting. The data shall consist of a message
count, the duration of the messages, the billed revenue for the
messages (when U.S. billed), settlements associated with the messages,
and the net revenue for the messages.
Carriers must report traffic data on a calendar year basis. Thus,
the carrier should report the actual traffic carried during the year.
Revenues and settlement amounts should be measured on an accrual basis,
rather than on an actual receipts or actual settlement basis unless
rates have been adjusted retroactively. The amounts reported should not
reflect prior year adjustments or corrections. Accordingly, carriers
cannot legitimately report negative amounts in the message, minute,
revenue, or settlement data fields.
Even though there is a significant lag between the end of the
reporting year and the final data filing in October of the following
year, carriers may not have complete settlement data for some
countries. In such instances, carriers should make a good faith effort
to estimate settlement receipts, and note the fact in the filing.
Section 2 describes the preparation of footnote records. Carriers
should not adjust subsequent year reports when out of period data
becomes available. Instead, these amounts, if significant, should be
noted in the subsequent year filing.
a. Message Service Traffic Measures
Carriers must report the number of billed messages for
international message telephone, international message telegraph and
international telex services, except that messages may be omitted for
transiting traffic. Data should be reported for all billed traffic,
regardless of whether the customer is an end user or another carrier.
All billed traffic should be reported, even calls that have been billed
but written off as uncollectible. Unbillable traffic, however, should
not be reported.4
\4\ For example, call-back customers place calls to their U.S.
carriers, but hang up after one ring. The U.S. carrier does not
answer the call, but rather detects that a call was made, and then
calls back. Since the initial call was not answered and is not
billable, it should not be reported by either the underlying
facilities based carrier or by the call-back carrier. The call back
to the customer, however, should be reported.
---------------------------------------------------------------------------
Carriers must report the number of minutes for international
message telephone and telex services. For facilities-based and
facilities resale service, carriers should report the number of minutes
upon which correspondent carriers will be compensated. For facilities-
based service, compensation generally is governed by the settlement
process. Settlement compensation is based on conversation minutes.
Settlement minutes averaged 5% to 6% less than billed minutes for
traffic billed in the United States for 1988 through 1990. If the
correspondent carrier is not compensated for traffic based on call
length, then the number of minutes should be based on conversation
minutes.
U.S. carriers should classify as transiting traffic all foreign
billed calls that both originate and terminate in foreign points. U.S.
carriers should classify as U.S. billed ``country beyond'' calls which
originate in foreign points, are placed through the carrier, and are
billed by the carrier. The U.S. carrier may owe settlements for two
legs of a ``country beyond'' call--one settlement amount for the
country where the call originates, and another for the country where
the call terminates. In this case, the number of minutes used for
settlement purposes will equal roughly twice the number of conversation
minutes.
Since carriers do not make settlement payments for their pure
resale traffic, carriers should report the number of minutes billed to
customers, which can be based on billing information received from the
underlying carrier.
Word counts must be reported for international message telegraph
service.
[[Page 4925]]
Carriers should report the number of words used for settlement
purposes.
All message data must be reported on a message or end-to-end basis.
This means that calls should be reported based on the billing location
and the ultimate points of origin or terminus.5 Transiting minutes
should be reported by the country in which the call is initiated.
\5\ At one time carriers were required to report traffic on two
schedules. The circuit traffic (CT) schedule showed all U.S. traffic
that went to or from a particular country, including traffic that
transited through that country to a third country. The message
traffic (MT) schedule showed all traffic that originated or
terminated in a particular country, including traffic that had
transited through a third country. The current requirements are more
similar to the MT schedule.
---------------------------------------------------------------------------
b. Message Service Revenue and Settlement Information
For each service that it provides, each carrier must report
separately billed revenues, settlement receipts due (on services billed
by correspondent carriers), settlement payments owed (on services
billed by the carrier), and the revenues they retain net of all
settlements. In the proprietary filing, carriers must use the specified
billing codes to separate traffic that it carriers over its own
facilities from traffic it carriers over facilities leased from other
reporting carriers.
Billed revenues are equal to the amounts that carriers billed to
customers for service at tariffed rates. Billed revenues should reflect
all discounts given to customers. Reported revenues should reflect
amounts actually billed to customers, including discounts that are
calculated after individual calls are rated. For example, discounts
which are calculated based on the total bill amount should be allocated
proportionally to international calls on a country-by-country basis.
However, if a discount is only calculated based on domestic billings,
then discounts should not be allocated to international service.
The cost of promotional items such as telephone sets, frequent
flyer miles, or merchandize credits, are marketing expenses and should
not be treated as revenue reductions. Credits or coupons for the
purchase of future communications services should be treated, when
earned or issued, the same as direct discounts credited to the
customer, with no allowance for the percentage of coupons which will
not be used, and no adjustments for costs of administering the
promotion.
Billed revenues should not be reduced to reflect uncollectibles or
transit fee expenses. Transit fees are owed when a call transits a
foreign carrier's facilities in one international point before
terminating in a second international point. Settlement amounts and
transit fees owed to the transiting carrier should be included with
settlements owed.
Billed revenues should not include tax amounts that are itemized on
the customer bill and remitted directly to taxing authorities, and
should only include amounts that are recorded as revenues in the
company books of account.
U.S. carriers have contractual relationships with foreign carriers
so that telephone calls can be made between local exchanges in the
United States and local exchanges in foreign countries. The foreign
carrier in the relationship is usually called the foreign
correspondent. Accounting rate agreements specify the amounts that
carriers pay to their foreign correspondents on a per minute or similar
basis for facilities based service. When the U.S. carrier bills an
international call, it owes a settlement amount to the foreign
correspondent. When the foreign correspondent bills an international
call, the U.S. carrier is owed a settlement amount. The carriers
usually balance the amounts due and make net payments. The amounts due
to U.S. carriers, including separate transit fees, if any, are referred
to herein as settlement receipts. The amounts owed by U.S. carriers to
foreign corespondents, including separate transit fees, if any, are
referred to herein as settlement payments. Settlement payments do not
include the amounts that pure-resale carriers pay to underlying U.S.
carriers. Settlement payments do not include the access charge amounts
that U.S. carriers pay to U.S. local exchange carriers for originating
or terminating calls. The U.S. carrier retained revenue is equal to
billed revenue plus settlement receipts minus settlement payments.
There are instances where carriers in two international points do
not charge each other settlements. This might be the case where the
carriers are affiliates, or where facilities resale service is being
provided. In such cases, carriers should report as settlements owed any
amounts owed to foreign carriers that would be analogous to settlement
amounts, including charges for originating or terminating traffic in
the foreign carrier's toll network or local exchange. However, carriers
should not include as settlements any costs of the underlying
facilities being used to provide service. Also, payments to U.S.
carriers for originating or terminating calls in U.S. toll networks or
local exchanges should not be reported. Where zero amounts are entered
as settlement payments for U.S. billed service, carriers should
footnote the reason. See Section 2 for instructions on including
footnotes in the data files.
In a report for a U.S. point, U.S. carriers should not have billed
revenue for foreign billed traffic. Similarly, U.S. carriers should not
have settlement receipts for U.S. billed traffic.
Accounting agreements may be denominated in dollars, foreign
currency units, or other monetary measures. All revenue and settlement
payment information must be stated in U.S. dollars regardless of the
terms of the accounting agreements or industry practices. Carriers
should apply the currency conversion rates that prevailed at the time
actual settlements were made.
Some international calls are initiated in foreign points by
customers using ``country beyond'' services of a U.S. carrier. These
calls may terminate in the United States or in other foreign points.
Billed revenue for such a call should be reported for the country in
which the call originated. Reported settlements should include amounts
owed to carriers in both the originating country, and the terminating
country, in the case of calls that terminate in foreign points.
2. Private Line Services
This section provides guidance for reporting private line circuit
counts and revenues on a country-by-country basis. Carriers must report
separately circuits that they own from circuits that they provide on a
resale basis. As detailed in section 1-E-1 above, international
circuits should be reported as resold only if they have been leased
from a carrier subject to Section 43.61 reporting requirements and only
if the circuits are leased to customers or other carriers in the form
of private line service. If the carrier has combined some owned and
some leased international circuits in order to provide a through
circuit, then the circuit should be reported as facilities based.
a. Number of Leased Circuits and Number of Equivalent Voice Grade
Circuits
A leased circuit is a single leased channel of communications that
links two specific points. Leased circuits should be categorized
according to the six private line categories shown on page 12 of the
manual. Circuits are not categorized according to how the customer
actually uses them. Counts of leased circuits should be provided as of
December 31 of the year for which data are being reported. Carriers
should not attempt to convert part day leases into equivalent full day
circuits, but a circuit
[[Page 4926]]
leased by different customers for different hours on December 31 should
be reported as a single circuit.
Companies should not report non-tariff circuits provided to
affiliates. Those circuits should be treated as the affiliate's
circuits if they are used to provide a reportable international
service. If the company had an ownership interest in the international
circuits, then the affiliated carrier would be providing facilities-
based service. If the company had obtained the international circuits
by lease, then the affiliated carrier could be providing facilities
resale service.
Carriers are also required to provide the number of voice
equivalent circuits for the leased circuits provided as of December 31
of the year for which data are being reported. Voice equivalent
circuits should be estimated by converting the total bandwidth of
circuits leased to an international point. The standard conversion is
based on 64 kilo bits per second for one voice equivalent channel. The
figure should be rounded to the nearest whole number. An 18 megahertz
video channel should be reported as 240 voice equivalent channels, a 24
megahertz video channel should be reported as 288 voice equivalent
channels, and a 36 megahertz video channel should be reported as 630
voice equivalent channels. The number of voice equivalent circuits
should be consistent with the data used to calculate regulatory fees as
well as amounts filed in FCC circuit reports.
b. Leased Circuit Revenue
Private line and leased circuit service revenues should include
only revenue from service provided under international tariffs. Private
line and leased circuit service revenue should not include revenue for
circuits that originate and terminate within the United States unless
those circuits are provided under an international tariff. Private line
revenues should include any service set up, installation, and
termination charges. Private line revenues do not include billings made
on behalf of domestic or foreign carriers for service provided by those
carriers. Private line revenues should include revenue billed by a
foreign carrier on behalf of the U.S. carrier for service provided by
the U.S. carrier, even if the revenue has not yet been remitted to the
U.S. carrier. Carriers must report the total private line revenues due
for the calendar year, regardless of whether a lease was in effect at
year end. Where lease or bill periods overlap the calendar year, billed
amounts should be apportioned between years based on the number of days
of service in each year. Private line revenues should not include taxes
included on the customer bill.
Billed revenues should reflect all discounts given to customers.
Reported revenues should reflect amounts actually billed to customers,
including discounts that are calculated based on total charges for all
services. Discounts which are calculated based on the total bill amount
should be allocated proportionally to international circuits. The cost
of promotional items such as telephone sets, frequent flyer miles, or
merchandize credits, are marketing expenses and should not be treated
as revenue reductions. Credits or coupons for the purchase of future
communications services should be treated the same as direct discounts,
with no allowance for the percentage of coupons which will not be used,
and no adjustments for costs of administering the promotion.
3. Miscellaneous or Other International Services
The category miscellaneous or other international services
potentially includes a wide variety of services. For the most part,
carriers must select and report the most relevant traffic measures.
However, providers of packet switched services should report the number
of kilo segments transmitted during the year; providers of occasional
use television service should report the number of hours of service
provided; and switched video service providers should report the number
of sessions and the number of minutes of service. See the chart on page
34 of the manual.
4. Data Requirements Summarized by Service
The following table summarizes the Section 43.61 data filing
requirements by service category:
------------------------------------------------------------------------
Facilities-based and
facilities resale Pure resale service
service *
------------------------------------------------------------------------
International message By country and Countries served.
telephone service. billing type: World totals by
messages, minutes, billing type:
carrier revenues, messages, minutes,
settlement and carrier
payments, retained revenues.
revenue.
International message By country and World totals by
telegraph service. billing type: billing type:
messages, words, messages, words,
carrier revenues, and carrier
settlement revenues.
payments, retained
revenue.
International telex service. By country and World total by
billing type: billing type:
messages, words, messages, words,
carrier revenues, and carrier
settlement revenues.
payments, retained
revenue.
Private line................ By country and * *
service category:
leased circuits,
voice equivalent
circuits, revenues.
Other international services Region totals by World total by
billing type: billing type:
messages, minutes, messages, minutes,
words, leased words, kilo
circuits, voice segments, sessions,
equivalent contracts, and
circuits, kilo carrier revenues as
segments, sessions, appropriate.
contracts, carrier
revenues,
settlement
payments, retained
revenue as
appropriate.
------------------------------------------------------------------------
* Pure resale carriers normally will not have settlement payments.
Payments to underlying U.S. carriers should not be reported as
settlements.
** Resale of private lines (either as private line service or as
switched service) is classified as facilities resale service, not pure
resale service.
G. Filing Procedures
Section 43.61(a) directs carriers to file reports by July 31,
reporting service actually provided in the preceding calendar year.
Section 43.61(c) provides that carriers shall submit a revised report
by October 31 identifying and correcting errors in the July 31 filing.
Carriers do not need to file revised data where figures change due to
corrections that normally occur in the billing and settlement cycles if
the corrected figures are within five percent of the figures filed in
the July 31 filing. Carriers must refile a corrected version of each
data record on which one or more data elements was found to be in error
by more than five percent. The five percent guideline covers
fluctuations in traffic or revenue totals due to corrections and true-
ups that occur during the billing
[[Page 4927]]
and settlement process. Carriers must file corrections for all
instances where they have filed erroneous data due to procedural
mistakes made while compiling or reporting data.
The following schedule details the number of copies required and
the location to which those copies should be delivered. This schedule
applies to the July 31 and October 31 filings. Carriers that provide
only pure resale international services are not required to file data
on diskette.
----------------------------------------------------------------------------------------------------------------
Certification and
Mailing address Transmittal letter paper copy of report Data on diskette*
----------------------------------------------------------------------------------------------------------------
FCC Secretary, Mail Stop 1170, 1919 Original.................... ...................... ....................
M Street, N.W., Washington, D.C.
20554.
FCC Common Carrier Bureau Industry 2 copies.................... Original and 1 copy of 1 set.
Analysis Division, Mail Stop 1600 both public and
F, 1919 M Street, N.W., Washington, confidential versions.
D.C. 20554.
The FCC's Contract Copier **, Room 1 copy...................... 1 copy public version 1 set.
246, 1919 M Street, N.W., only.
Washington, D.C. 20037.
----------------------------------------------------------------------------------------------------------------
* Pure resale traffic, and summary data for smaller U.S. points need not be filed on diskette. See page 14 of
the manual.
** Currently International Transcription Services, Inc.
Paper copies must contain data that are identical to the data filed
on diskette. Page headings must clearly indicate the filing entity, the
United States point covered, and the service being reported. Column
headings must describe the data contained in each column.
The carrier must include footnote text to explain the specific
circumstances of any data for the current period which differs
materially from that for the previous period if the difference is not
self-explanatory but was caused by unusual circumstances not explained
in a previous report. The paper copies of the 43.61 data must include
the text of any footnotes. A data field is provided in the diskette
record format to indicate that a footnote has been included in a
separate data file record as well as in the paper copies. The paper
copies and comment records in the data files should also contain any
additional data or information that the carrier deems relevant or
necessary to understanding the data it is required to file.
The transmittal letter should identify the name of the carrier, the
date of the filing, and should state that Section 43.61 data has been
filed with the Common Carrier Bureau's Industry Analysis Division and
the Commission's current contract copier. The original of the
transmittal letter should be filed with the Secretary of the FCC.
Copies of the transmittal letter should be filed with the Industry
Analysis Division and the Commission's current contract copier.
Carriers must certify the accuracy of the data submitted in FCC
Report 43.61 by including a signed certification statement as the last
page of the paper report. The statement must be signed by an officer of
the reporting carrier. An officer is a person who occupies a position
specified in the articles of incorporation (or partnership agreement),
and would typically be president, vice president for operations, vice-
president for finance, comptroller, treasurer or a comparable position.
If the carrier is a sole proprietorship the owner must sign the
certification. The original and one copy of the certification statement
should be filed with the Industry Analysis Division. One copy of the
certification should be filed with the Commission's current contract
copier.
For additional information, comments or suggestions, contact the
Common Carrier Bureau's, Industry Analysis Division (202) 418-0940.
The text of the certification statement is included below:
Certification
I certify that I am an officer of ____________________; that I
have examined the foregoing report and that to the best of my
knowledge, information and belief, all statements of fact contained
in this report are true and that said report is an accurate
statement of the affairs of the above named respondent in respect to
the data set forth herein for the period from __________ to
__________.
Printed Name-----------------------------------------------------------
Position---------------------------------------------------------------
Signature--------------------------------------------------------------
Date-------------------------------------------------------------------
Section 2 Diskette Format and Coding Instructions
A. Media and File Name for Traffic Data Filed on Diskette
Data should be provided on 3\1/2\'' floppy diskettes formatted for
IBM or IBM compatible personal computers. Carriers serving more than
one United States point should provide one file for each point served.
All files may be included on the same diskette. The record files should
be named according to the following convention:
aaaaaaYY.436
where:
aaaaaa are 3 to 6 alpha characters that identify the filing entity
and U.S. point.
YY is the last two digits of the calendar year for which data are
being filed.
.436 is the file extension, (short for 43.61).
For example:
ATTVI91.436 might signify AT&T's Virgin Islands data for 1991
GRPHNT91.436 might signify Graphnet's complete filing for 1991
Carriers may file data in more than one file. All files may be
placed on the same diskette. Carriers filing multiple files should give
each file a unique name.
B. Record Formats
The data files may contain comment records and data records. A
comment record has a blank space (ASCII character 32 or `` '') in the
first position in the line, contains less than 132 characters, and ends
with a carriage return. Comment records can be used to provide
headings, formatting, and footnotes in the data file. A
FR Doc. 96-2615 Reporting Requirements for International Traffic Data
listing of the
data file can be used as the paper copy of the data for filing
purposes.
All data records must be provided using the record format set forth
herein. Each record shall consist of a string of ASCII characters.
Fields with ``character'' content should be left justified within the
stated field boundary and may contain the ASCII characters ``A''
through ``Z'', ``a'' through ``z'', ``,'', ``.'', ``-'', ``+'', ``/'',
``&'', ``#'', ``*'', ``!'', ``:'', ``;'', ``0'' through ``9'', and
blank spaces (ASCII character 32). Fields with ``number'' content
should be right justified within the field boundary, and may contain
the ASCII characters
``-'', ``0'' through ``9'' and leading blank spaces, but no commas,
decimal points, or other characters. The character ``-'' signifies a
negative value and should appear in the field to the left of the value.
Negative values are only possible for retained revenue, where the
settlement payout owed exceeded the billed revenue for a switched
service.
Each data record should contain the following fields:
[[Page 4928]]
----------------------------------------------------------------------------------------------------------------
Justification within Field Record
Field Field contents field size positions
----------------------------------------------------------------------------------------------------------------
1. Filing Carrier Name............. characters left 15 1-15
2. Year of data.................... numbers right 2 16-17
3. U.S. Point served............... numbers right 5 18-22
4. International Point or region... numbers right 5 23-27
5. Service code.................... numbers right 3 28-30
6. Footnote indicator.............. characters right 3 31-33
7. Description..................... characters left 36 34-69
8. Billing Code.................... numbers right 2 70-71
9. Data field #1................... numbers right 12 72-83
10. Data field #2................... numbers right 12 84-95
11. Data field #3................... numbers right 12 96-107
12. Data field #4................... numbers right 12 108-119
13. Data field #5................... numbers right 12 120-131
----------------------------------------------------------------------------------------------------------------
The data fields are further described in Section 2-K below.
Data files can be created using standard editors, word processors
spreadsheet programs, data base programs and custom programs. For
example, to create a data file using a spreadsheet:
--Set the column widths to equal the field size shown above. Thus, the
first column would be 15 characters wide.
--Enter fields as using a ``label'' format, rather than using a
``numeric value'' format. Be careful not to include extra spaces at the
end of the line.
--Specify a generic or character oriented printer (the lotus 3.1
sequence would be rint rinter ptions dvanced evice
ame)
Note: the print file will be useless if you specify a graphics
printer or if you try to print in WYSIWYG mode.
--Set the left, top, and bottom margins to 0, set the right margin to
132. Set the page length to 1000 lines.
--Set the print range.
--Print to a ile, rather than to the actual hardware device, and
then o. Rename the resulting file using the naming conventions shown
above.
C. Filing Carrier Name Field
The filing carrier name should be between 3 and 15 characters. The
name field should appear on all data records filed by the carrier, and
should be identical for all records filed by the carrier.
D. Year of Data Field
This field should contain the last two digits of the year for which
data are being filed. For example, the July 31, 1992 filing will
contain data for 1991. Therefore, the year of data field would be
``91''. This would appear on every data record in the file.
E. U.S. Point Served Field
The U.S. Point served country code is used to indicate which United
States point is covered by the data record. The codes for United States
points are in the range 1001 to 1999, and are the country codes shown
in International Points. Contact the Industry Analysis Division if an
Off-shore U.S. point is not listed in the report. The Industry Analysis
Division will assign a country code for such points. All records in a
file must have the same U.S. point code.
F. International Point or Region Field
Where records contain data for traffic between a U.S. point and a
specific international point, the code for that international point
should be taken from International Points and entered in the
International Point field. For example, the code 1 in the international
point field would indicate that the record reports traffic between a
United States point and Abu Dhabi.
There is no miscellaneous or ``all other'' country code. All
traffic must be reported to a specific point. Country-by-country
traffic and revenue data for points in a region should total to the
amount reported for that region using region codes. Settlement and
traffic adjustments which cannot be tied to specific points should be
allocated to all appropriate points.
Data records will be rejected if the U.S point and international
point are both domestic points.
The international point code for region subtotal and world total
summary records should be as follows:
------------------------------------------------------------------------
For services 1 through 9,
International point code (record description field (record field
field #4) #7)
------------------------------------------------------------------------
9001................................ Western Europe.
9002................................ Africa.
9003................................ Middle East.
9004................................ Caribbean.
9005................................ North and Central America.
9006................................ South America.
9007................................ Asia.
9008................................ Oceania.
9009................................ Eastern Europe.
9010................................ Other Regions.
9999................................ World Total.
------------------------------------------------------------------------
Note: Code 9010--Other Regions, covers Antarctica and Maritime
traffic.
Section 1-D of this manual explains which data must be filed on a
country-by-country basis, and which data need only be filed on a
summary basis. Facilities-based carriers must file regional and world
total traffic and revenue subtotals for each service that they provide.
However, country-by-country and region totals are not required for
smaller international points. See page 13 of the manual. In addition,
carriers must file separate world total traffic and revenue by U.S.
point for the pure resale traffic that they provide for the domestic
United States (Alaska, Hawaii, the conterminous U.S. and Puerto Rico)
and for each other U.S. point that they serve.
The international point code 9999 should be used if the record
contains world total data for a service. International point code 9999
is not a miscellaneous or ``all other'' code. This code represents a
total for all international traffic between a United States point and
the rest of the world. Where country-by-country data are filed, records
with international point code 9999 contain the totals of records with
the same U.S. region, service, and billing codes, and with
international point codes between 1 and 1999.
G. Service Code Field
The following service codes should be used:
1 International message telephone service
2 International message telegraph service
3 Telex Service
4 Private Line--Voice
[[Page 4929]]
5 Private Line--up to 1200 bits per second (bps)
6 Private Line--1201 bps to 9600 bps
7 Private Line--9601 bps to 30 Million bps (Mbps) or .01 Megahertz
to 18 Megahertz
8 Private Line--greater than 30 Mbps to 120 Mbps or greater than 18
Megahertz to 72 Megahertz
9 Private Line--greater than 120 Mbps or greater than 72 megahertz
99 New, Miscellaneous and Other Services
H. Footnote Code Field and Comment Records
The footnote code field should be used to indicate that the paper
copies of the 43.61 data, as well as comment records contained in the
data file, contain a footnote concerning the data record. The carrier
must include footnote text to explain the specific circumstances if any
data for the current period differs materially from that filed for the
previous period and the difference is not self-explanatory but was
caused by unusual circumstances not explained in a previous report. The
paper copies of the 43.61 data must include the text of the footnote.
These footnotes should be labeled sequentially from 1 to 999, and the
footnote should be included in the footnote code field in the data
record. Alpha numeric codes may be used only if the carrier needs to
provide more than 999 footnotes in the report.
Footnotes and other comments should be included in the data file as
comment records. Any record with a blank space (`` ``) in the first
position will be treated as a comment record. Please note that some
word processors and spreadsheet programs will insert leading spaces
when files are printed to diskette. If this occurs, you will need to
use an editor to manually delete the spaces.
I. Description Field
For service codes 1 through 9, this field should contain the name
of the international point or world region. The name should be
identical to the international point name published in International
Points. Region names are shown in section 2-F above.
For service code 99, this field should be used to identify the
service provided. This field is critical because the carrier may use
service code 99 for several different types of service. Records with
service code 99 will not be accepted unless there are at least 10
characters other than blank spaces in the service description field.
The service should be fully described in the paper copy of the section
43.61 filing and in comment fields.
All records pertaining to the same Other International Service
should have identical service descriptions in this field. The following
standardized names should be employed to report other international
services.
----------------------------------------------------------------------------------------------------------------
Service Service name (include in field #7) Traffic measures
----------------------------------------------------------------------------------------------------------------
Packet switching service...... Packet Switching.................................... (1) Kilo segments.
Occasional use television-- Occasional Television............................... (1) Hours.
short term arrangements to
facilitate transmission of
television signals.
Switched Video................ Switched Video...................................... (1) Sessions.
(2) Minutes.
----------------------------------------------------------------------------------------------------------------
J. Billing Code Field
The billing code indicates whether the record contains facilities-
based, facilities resale, or pure resale data. Facilities based codes
are from 1 to 4, facilities resale codes are from 11 to 14, and the
pure resale code is 21. The billing code indicates whether the traffic
and revenue information are for U.S billed, foreign billed, or
transiting service. Billing codes are shown on page 18 of the manual.
Facilities-based private line service will be reported with bill code
1. Facilities resale private line service will be reported with billing
code 11.
K. Data elements #1 Through #5
There are five data element fields, each of which is 12 characters
wide. These fields should contain right justified integer values with
no commas, periods, or other punctuation marks. Revenue should be
rounded to the nearest dollar. The contents of the data field will vary
depending on the type of service. Section 1-F describes the precise
types of information that must be provided. The following figure
summarizes the requirements:
----------------------------------------------------------------------------------------------------------------
Service code Data field #1 Data field #2 Data field #3 Data field #4 Data field #5
----------------------------------------------------------------------------------------------------------------
1............ Messages*......... Minutes........... Billed & Settlement Retained Revenue.
Settlement Payments.
Revenue**.
2............ Messages*......... Words............. Billed & Settlement Retained Revenue.
Settlement Payments.
Revenue**.
3............ Messages*......... Minutes........... Billed & Settlement Retained Revenue.
Settlement Payments.
Revenue**.
4-9.......... Leased Circuits... Voice Equivalent Revenue........... (no data)......... (no data).
Circuits.
10........... Messages*......... Minutes........... Billed Revenue.... Settlement Retained Revenue.
Payments.
99........... Volume Measure***. Volume Measure***. Billed & Settlement Retained Revenue.
Settlement Payments if
Revenue**. appropriate.
----------------------------------------------------------------------------------------------------------------
* Messages can be omitted for transiting traffic. Minutes can be omitted for transiting traffic in the public
filing.
** Records for U.S. Billed traffic will contain billed revenue. Records for Foreign Billed traffic will contain
settlement amounts due from foreign corespondents. Transiting records may combine both billed revenue and
settlement amounts due.
*** Volume measures have been specified for some Other International Services. See section 1-C-5 and the table
on page 34 of the manual. For other services reported with Service Code 99, use the volume and revenue
measures that are most appropriate. See Section 1-F-3. Comment records in the file must indicate the volume
and revenue measures provided.
BILLING CODE 6712-01-U
[[Page 4930]]
[GRAPHIC] [TIFF OMMITTED] TR09FE96.011
[[Page 4931]]
[GRAPHIC] [TIFF OMMITTED] TR09FE96.012
[[Page 4932]]
[GRAPHIC] [TIFF OMMITTED] TR09FE96.013
[[Page 4933]]
[GRAPHIC] [TIFF OMMITTED] TR09FE96.014
BILLING CODE 6712-01-C
[[Page 4934]]
Section 3 Simplified Instructions for Pure Resale Carriers
This section details the filing requirements for pure resale
traffic and is intended to be a stand alone manual for pure resellers
of switched services. Pure resale services are not provided to the
public over the reseller's international channels of communications,
but instead are provided by reselling switched communications service
of other international carriers. Pure resellers may own switching
equipment as well as domestic circuits.
A. Definitions and Data To Be Filed
Each pure reseller must file world total traffic and revenue data
for each service that it provides. Pure resellers may consolidate pure
resale traffic for domestic U.S. points (the Conterminous United
States, Alaska, Hawaii, and Puerto Rico). Pure resellers must file
separate data for each additional U.S. point served, i.e. American
Samoa, Baker Island, Guam, Howland Island, Jarvis Island, Johnston
Atoll, Kingman Reef, Midway Atoll, Navassa Island, Northern Mariana
Islands, Palmyra Atoll, Wake Island and the U.S. Virgin Islands.
International Message Telephone, International Message Telegraph,
Telex, and Miscellaneous or Other services can be offered on a pure
resale basis. International Message Telephone Service includes call-
back service, hot line service, and other resale services where the
point of origin for the call differs from the billing location.
``Call-back'' refers to an arrangement in which a customer in a
foreign country uses foreign facilities to dial a preassigned telephone
number in the United States. The call is not completed, but the
presence of signaling information triggers a call back to the customer,
who receives a dial tone from the U.S. carrier's switch. The customer
can then place a call via outbound switched service of the U.S.
carrier. Three separate calls have been placed: an unanswered call
placed by the customer; a call back to the customer placed by the
carrier; and a call to number then requested by the customer. The final
call either terminates at a U.S. telephone or physically transits the
United States. The customer that initiates the call-back is billed by
the U.S. carrier. Typically, the call-back carrier provides the service
by reselling the international services of other U.S. carriers. The
underlying carrier will bill the call-back carrier for the call that
goes from the call-back carrier switch to the customer, and for the
call that goes from the call-back carrier to the ultimate call
destination. The Commission has granted a 214 application to provide
this service. VIA USA, Ltd et al. 9 FCC Rcd 2288 (1994).
In offering a ``hot line'' arrangement, the U.S. carrier
continuously places calls to the telephone of a subscriber located
outside the United States. The called party's telephone has a
disconnected ringer. When the called party wants to access a U.S. dial
tone to place an international call, he or she simply picks up the
receiver and ``answers'' one of several thousand continuous calls made
to that particular phone during the day and receives a dial tone at the
U.S. carrier's location. The U.S. carrier completes and bills the call.
Traffic and revenue totals should not include traffic between
domestic U.S. points. Traffic and revenue totals should be based on
amounts billed to customers with no allowance for uncollectibles.
However, unbillable traffic should not be included. Revenue amounts
should reflect all discounts attributable to international service.
Traffic and revenue totals should be based on service actually provided
during the reporting year, regardless of when the traffic was actually
billed. Revenue should not include taxes shown on customer bills.
Pure resellers providing message telephone service must also
provide a list of the countries where calls terminated during the
reporting year. Table 5 of International Points used for FCC Reporting
Purposes is a check list that can be used for this purpose. Carriers
serving a domestic U.S. point should not check off other domestic U.S.
points, since the traffic totals should exclude traffic between
domestic U.S. points. The report should also contain any additional
data or information that the carrier deems relevant or necessary to
understanding the data it is required to file. In addition to providing
the points served, pure resale carriers must file the following data
for each service that they provide.
------------------------------------------------------------------------
Service Traffic data
------------------------------------------------------------------------
International message telephone service... World totals by billing
type: messages, minutes,
and carrier revenues.
International message telegraph service... World totals by billing
type: messages, words, and
carrier revenues.
International telex service............... World total by billing type:
messages, words, and
carrier revenues.
Each other international services......... World total by billing type:
messages, minutes, words,
kilo segments, sessions,
contracts, and carrier
revenues as appropriate.
------------------------------------------------------------------------
B. Filing Procedures
Section 43.61(a) directs carriers to file reports by July 31,
reporting service actually provided in the preceding calendar year.
Section 43.61(c) provides that carriers shall submit a revised report
by October 31 identifying and correcting errors in the July 31 filing.
Carriers do not need to file revised data where corrected figures are
within five percent of the figures filed in the July 31 filing. The
five percent guideline covers fluctuations in traffic or revenue totals
due to corrections and true-ups that occur during the billing and
settlement process. This exception is not intended to cover instances
where carriers discover that they have filed erroneous data due to
procedural mistakes made while preparing section 43.61 reports.
The following schedule details the number of copies required and
the location to which those copies should be delivered. This schedule
applies to the July 31 and October 31 filings.
------------------------------------------------------------------------
Certification and
Mailing address Transmittal letter report*
------------------------------------------------------------------------
FCC Secretary, Mail Stop 1170, Original.......... .................
1919 M Street, NW., Washington,
DC 20554.
FCC Common Carrier Bureau 2 copies.......... Original and 1
Industry Analysis Division, Mail copy.
Stop 1600 F, 1919 M Street, NW.,
Washington, DC 20554.
The FCC's Contract Copier**, Room 1 copy............ 1 copy.
246, 1919 M Street, NW.,
Washington, DC 20037.
------------------------------------------------------------------------
*Pure resale traffic need not be filed on diskette.
**Currently International Transcription Services, Inc.
The transmittal letter should identify the name of the carrier, the
date of the filing, and should state that Section 43.61 data has been
filed with the Common Carrier Bureau Industry Analysis Division and the
Commission's
[[Page 4935]]
current contract copier. The original of the transmittal letter should
be filed with the Secretary of the FCC. Copies of the transmittal
letter should be filed with the Industry Analysis Division and the
Commission's current contract copier.
Carriers must certify the accuracy of the data submitted in FCC
Report 43.61 by including a signed certification statement as the last
page of the paper report. The statement must be signed by an officer of
the reporting carrier. An officer is a person who occupies a position
specified in the articles of incorporation (or partnership agreement),
and would typically be president, vice president for operations, vice-
president for finance, comptroller, treasurer or a comparable position.
If the carrier is a sole proprietorship the owner must sign the
certification. The original and one copy of the certification statement
should be filed with the Industry Analysis Division. One copy of the
certification should be filed with the Commission's current contract
copier.
For additional information, comments or suggestions, contact the
Common Carrier Bureau's, Industry Analysis Division (202) 418-0940.
The certification statement is included below:
Certification
I certify that I am an officer of ____________________; that I
have examined the foregoing report and that to the best of my
knowledge, information and belief, all statements of fact contained
in this report are true and that said report is an accurate
statement of the affairs of the above named respondent in respect to
the data set forth herein for the period from __________ to
__________.
Printed Name-----------------------------------------------------------
Position---------------------------------------------------------------
Signature--------------------------------------------------------------
Date-------------------------------------------------------------------
C. Sample 43.61 Report for a Pure Resale Company
IAD International
International Traffic and Revenue Report for 1994 Filed Pursuant to
Section 43.61 of the Commission's Rules
International Message Telephone Service provided on a pure resale
basis, including Call-back type service.
I. Traffic originated from U.S. Domestic Points [does not include
traffic between U.S. domestic points].
A. Served: Alaska, Hawaii, Puerto Rico and the Conterminous United
States.
B. International points served are attached.
C. Traffic Data consolidated for Domestic U.S. points: Messages,
21,000,258; Minutes, 28,208,890; and Billed Revenue, $16,003,920.
II. Traffic originated from U.S. Virgin Islands.
A. International points served are attached.
B. Traffic Data: Messages, 258; Minutes, 890; and Billed Revenue,
$920.
D. Example Check Sheet for International Points Served
This Check Sheet was taken from Table 5 of ``International Points
Used for FCC Reporting (Check Alaska, Conterminous U.S., Hawaii, or
Puerto Rico ONLY if you are reporting service for non-domestic U.S.
points.)
3... Afghanistan 384 Czech Republic 158 Kiribati
1005. Alaska 81 Denmark 159 Korea, North
6.... Albania 82 Djibouti 160 Korea, South
8... Algeria 83 Dominica 161 Kuwait
1009. American Samoa 84 Dominican Republic 162 Kyrgyzstan
10... Andorra 87 Ecuador 163 Laos
12... Angola 88 Egypt 164 Latvia
13... Anguilla 89 El Salvador 165 Lebanon
14... Antarctica 91 Equatorial Guinea 166 Lesotho
15... Antigua and Barbuda 93 Estonia 167 Liberia
16... Argentina 94 Ethiopia 168 Libya
17... Armenia 98 Fiji 169 Liechtenstein
8.... Aruba 99 Finland 171 Lithuania
20... Australia 101 France 173 Luxembourg
21... Austria 103 French Guiana 174 Macau
22... Azerbaijan 102 French Overseas Departm 176 Madagascar
24... Bahamas, The 104 French Polynesia 179 Malawi
25... Bahrain 354 French Southern and Ant 180 Malaysia
1026. Baker Island 106 Gabon 181 Maldives
28... Bangladesh 108 Gambia, The 182 Mali
29... Barbados 111 Georgia 183 Malta
50... Belarus 112 Germany 185 Maritime--Atlantic
31... Belgium 114 Ghana 186 Maritime-other oceans
32... Belize 115 Gibraltar 187 Maritime--Pacific
33... Benin 118 Greece 188 Marshall Islands
35... Bermuda 120 Greenland 190 Mauritania
36... Bhutan 121 Grenada 191 Mauritius
37... Bolivia 123 Guadeloupe 194 Mexico
40... Bosnia and Herzegovina 1124 Guam 195 Micronesia
41... Botswana 127 Guatemala 1196 Midway Atoll
43... Brazil 129 Guinea 197 Moldova
44... Brunei 130 Guinea-Bissau 199 Mongolia
46... Bulgaria 131 Guyana 202 Montserrat
47... Burkina 132 Haiti 203 Morocco
48... Burma 1133 Hawaii 205 Mozambique
49... Burundi 136 Honduras 207 Namibia
[[Page 4936]]
52... Cambodia 137 Hong Kong 208 Nauru
53... Cameroon 1138 Howland Island 1374 Navassa Island
54... Canada 139 Hungary 209 Nepal
55... Canary Island 140 Iceland 210 Netherlands
56... Cape Verde 141 India 211 Netherlands Antilles
58... Cayman Islands 142 Indonesia 213 Caledonia
59... Central African Republi 143 Iran 217 New Zealand
61... Chad 144 Iraq 219 Nicaragua
350.. Chagos Archipelago 145 Ireland 220 Niger
63... Chile 148 Israel 221 Nigeria
64... China 149 Italy 222 Niue
68... Colombia 150 Jamaica 223 Norfolk Island
69... Comoros 151 Japan 1363 Northern Mariana Island
70... Congo 1369 Jarvis Island 226 Norway
71... Cook Islands 1153 Johnston Atoll 230 Oman
74... Costa Rica 154 Jordan 231 Pacific Islands (Palau)
75... Cote d'Ivoire 52 Kampuchea 232 Pakistan
76... Croatia 156 Kazakhstan 1234 Palmyra Atoll
77... Cuba 157 Kenya 235 Panama
79... Cyprus 1371 Kingman Reef 237 Papua New Guinea
238.. Paraguay 332 Vanuatu
239.. Peru 334 Venezuela
241.. Philippines 335 Vietnam
244.. Poland 337 Virgin Islands, British
245.. Portugal 1338 Wake Island
1247. Puerto Rico 340 Wallis and Futuna
248.. Qatar 343 Western Sahara
253.. Reunion 344 Western Samoa
254.. Romania 345 Yemen
257.. Russia 347 Zaire
258.. Rwanda 348 Zambia
264.. Saint Helena 349 Zimbabwe
265.. Saint Kitts and Nevis
266.. Saint Lucia
269.. Saint Pierre and Miquel
270.. Saint Vincent and the G
277.. Sao Tome and Principe
279.. Saudi Arabia
281.. Senegal
282.. Serbia
283.. Seychelles
286.. Sierra Leone
287.. Singapore
385.. Slovakia
289.. Slovenia
290.. Solomon Islands
291.. Somalia
292.. South Africa
293.. Spain
294.. Sri Lanka
295.. Sudan
296.. Suriname
298.. Swaziland
299.. Sweden
300.. Switzerland
301.. Syria
303.. Taiwan
304.. Tajikistan
305.. Tanzania
307.. Thailand
310.. Togo
312.. Tonga
315.. Trinidad and Tobago
316.. Tunisia
317.. Turkey
318.. Turkmenistan
319.. Turks and Caicos Island
320.. Tuvalu
321.. Uganda
322.. Ukraine
325.. United Arab Emirates
326.. United Kingdom
1327. United States (contermi)
[[Page 4937]]
328.. Uruguay
330.. Uzbekistan
1331. U.S. Virgin Islands
Federal Communications Commission.
William F. Caton,
Acting Secretary.
[FR Doc. 96-2615 Filed 2-8-96; 8:45 am]
BILLING CODE 6712-01-U
Complete official Federal Register PDF
FR Doc. 96-2510 Amendment to Class D Airspace, Millington, TN
[Federal Register Volume 61, Number 28 (Friday, February 9, 1996)]
[Rules and Regulations]
[Pages 4870-4871]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-2510]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF TRANSPORTATION
Federal Aviation Administration
14 CFR Part 71
[Airspace Docket No. 96-ASO-6]
Amendment to Class D Airspace, Millington, TN
AGENCY: Federal Aviation Administration (FAA), DOT.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: This amendment changes the name of Memphis NAS to Memphis MAS/
Millington Municipal Airport and changes the title of the airspace
designation for the Memphis NAS/Millington Municipal Airport located at
Millington, TN, from Memphis NAS, TN, to Millington, TN.
EFFECTIVE DATE: 0901 UTC, April 25, 1996.
FOR FURTHER INFORMATION CONTACT: Benny L. McGlamery, System Management
Branch, Air Traffic Division, Federal Aviation Administration, P.O. Box
20636, Atlanta, Georgia 30320; telephone (404) 305-5570.
SUPPLEMENTARY INFORMATION:
History
The Memphis Naval Air Station (NAS) is now a joint use airport. As
a result, the name of the airport located at Millington, TN, changed
from Memphis NAS to Memphis NAS/Millington Municipal Airport. This
amendment is necessary to reflect that change. The dimensions,
configuration and operating requirements of the affected airspace do
not change. This rule will become effective on the date specified in
the EFFECTIVE DATE section. Since this action does not change the
dimensions, configuration or operating requirements of the Class D
surface area airspace for the airport, and as a result, has no impact
on users of the airspace in the vicinity of the Memphis NAS/Millington
Municipal Airport, notice and public procedure under 5 U.S.C. 553(b)
are unnecessary. Class D airspace designations are published in
Paragraph 5000 of FAA Order 7400.9C dated August 17, 1995, and
effective September 16, 1995. The Class D airspace designation listed
in this document will be published subsequently in the Order.
The Rule
This amendment to part 71 of the Federal Aviation Regulatory (14
CFR part 71) changes the name of Memphis NAS to Memphis NAS/Millington
[[Page 4871]]
Municipal Airport and changes the title of the airspace designation for
the Memphis NAS/Millington Municipal Airport located at Millington, TN,
from Memphis NAS, TN, to Millington, TN.
The FAA has determined that this regulation only involves an
established body of technical regulations for which frequent and
routine amendments are necessary to keep them operationally current.
It, therefore, (1) is not a ``significant regulatory action'' under
Executive Order 12866; (2) is not a ``significant rule'' under DOT
Regulatory Policies and Procedures (44 FR 11034; February 26, 1979);
and (3) does not warrant preparation of a regulatory evaluation as the
anticipated impact is so minimal. Since this is a routine matter that
will only affect air traffic procedures and air navigation, it is
certified that this rule will not have a significant economic impact on
a substantial number of small entities under the criteria of the
Regulatory Flexibility Act.
List of Subjects in 14 CFR Part 71
Airspace, Incorporation by reference, Navigation (air).
Adoption of the Amendment
In consideration of the foregoing, the Federal Aviation
Administration amends 14 CFR Part 71 as follows:
PART 71--[AMENDED]
1. The authority citation for 14 CFR Part 71 continues to read as
follows:
Authority: 49 U.S.C. 106(g); 40103, 40113, 40120; EO 10854, 24
FR 9565, 3 CFR, 1959-1963 Comp., p. 389; 14 CFR 11.69.
Sec. 71.1 [Amended]
2. The incorporation by reference in 14 CFR 71.1 of Federal
Aviation Administration Order 7400.9C, Airspace Designations and
Reporting Points, dated August 17, 1995, and effective September 16,
1995, is amended as follows:
Paragraph 5000 Class D Airspace.
* * * * *
ASO TN D Millington, TN [Revised]
Memphis NAS/Millington Municipal Airport, TN
(lat. 35 deg.21'20'' N, long. 89 deg.52'10'' W)
That airspace extending upward from the surface to and including
2800 feet MSL within a 5-mile radius of Memphis NAS/Millington
Municipal Airport. This Class D airspace area is effective during
the specific days and times established in advance by a Notice to
Airmen. The effective days and times will thereafter be continuously
published in the Airport/Facility Directory.
* * * * *
Issued in College Park, Georgia, on January 24, 1996.
Wade T. Carpenter,
Acting Manager, Air Traffic Division, Southern Region.
[FR Doc. 96-2510 Filed 2-8-96; 8:45 am]
BILLING CODE 4910-13-m
Complete official Federal Register PDF
FR Doc. 96-2171 Section 6662Imposition of the Accuracy-Related Penalty
[Federal Register Volume 61, Number 28 (Friday, February 9, 1996)]
[Rules and Regulations]
[Pages 4876-4885]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-2171]
=======================================================================
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DEPARTMENT OF THE TREASURY
Internal Revenue Service
26 CFR Parts 1 and 602
[TD 8656]
RIN 1545-AS24
Section 6662--Imposition of the Accuracy-Related Penalty
AGENCY: Internal Revenue Service (IRS), Treasury.
ACTION: Final and temporary regulations.
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SUMMARY: These regulations provide guidance on the imposition of the
accuracy related penalty under Internal Revenue Code section 6662(e)
for net section 482 transfer price adjustments. This action implements
changes to the applicable tax laws made by the Omnibus Budget
Reconciliation Act of 1993.
DATES: These regulations are effective February 9, 1996.
Applicability: At the election of the taxpayer, these regulations
may be applied to all open taxable years beginning after December 31,
1993.
FOR FURTHER INFORMATION CONTACT: Carolyn D. Fanaroff of the Office of
Associate Chief Counsel (International), IRS (202) 622-3880 (not a
toll-free number).
SUPPLEMENTARY INFORMATION:
Paperwork Reduction Act
The collections of information contained in these final regulations
have been reviewed and approved by the Office of Management and Budget
in accordance with the Paperwork Reduction Act (44 U.S.C. 3507) under
control number 1545-1426. Responses to this collection of information
are required by section 6662(e) of the Internal Revenue Code in order
to administer the transfer pricing penalty under that section.
An agency may not conduct or sponsor, and a person is not required
to respond to, a collection of information unless the collection of
information displays a valid control number.
The estimated average annual burden per recordkeeper varies from 5
to 15 hours, depending on individual circumstances, with an estimated
average of 10 hours per recordkeeper.
Comments concerning the accuracy of this burden estimate and
suggestions for reducing this burden should be sent to the Internal
Revenue Service, Attn: IRS Reports Clearance Officer, T:FP, Washington,
DC 20224, and to the Office of Management and Budget, Attn: Desk
Officer for the Department of the Treasury, Office of Information and
Regulatory Affairs, Washington, DC 20503.
Books and records relating to this collection of information must
be retained as long as their contents may become material in the
administration of any internal revenue law. Generally, tax returns and
tax return information are confidential, as required by 26 U.S.C. 6103.
Background
Sections 6662(e) and (h) of the Internal Revenue Code reflect
amendments made by Section 13236 of the Omnibus Budget Reconciliation
Act of 1993 (OBRA `93, Public Law 103-66, 107 Stat. 312). On February
2, 1994, the IRS and Treasury published temporary regulations (59 FR
4791) and a notice of proposed rulemaking (58 FR 5263) setting forth
rules for imposing a substantial valuation misstatement penalty in
connection with transactions between persons described in section
[[Page 4877]]
482 (the transactional penalty) and net section 482 transfer price
adjustments (the net adjustment penalty) and withdrawing previously
proposed regulations issued on January 21, 1993 (58 FR 5304). On July
8, 1994, the IRS and Treasury issued new temporary regulations (59 FR
35030) under section 6662(e) conforming the previously- issued
regulations to the final 482 regulations published on the same day. A
cross-referenced notice of proposed rulemaking accompanied the
temporary regulations (59 FR 35066).
The IRS and Treasury received numerous comments on the proposed and
temporary regulations from taxpayers, practitioners, tax treaty
partners, industry representatives, and professional associations. In
general, most commenters recognized the government's interest in
encouraging timely compliance with the arm's length standard at the
time that a tax return is filed. These commenters primarily addressed
particular aspects of the specified method rule in Sec. 1.6662-
6(d)(2)(ii) of the temporary regulations that they believed imposed an
unnecessary burden.
In response to these comments, the IRS and Treasury have attempted
to simplify the requirements set forth in the proposed and temporary
regulations without departing from the basic objective of section
6662(e): to improve compliance with the arm's length standard by
encouraging taxpayers to make reasonable efforts to determine and
document arm's length prices for their intercompany transactions. The
regulations are adopted as revised by this Treasury decision, and the
corresponding proposed and temporary regulations are removed. Set forth
below is a discussion of the most significant comments and the changes
made in response to them.
Discussion of Major Comments and Changes to the Regulations
The Reasonableness Standard
Commenters expressed concern that the standard for assertion of the
transactional penalty and the net adjustment penalty (together, the
penalty) under the proposed and temporary regulations effectively makes
the penalty a ``no fault'' penalty to be imposed in any case in which
the statutory thresholds for imposition are met. Commenters suggested
that, in all cases, a taxpayer could not have used the most reliable
measure of an arm's length result if it subsequently is determined that
the taxpayer's analysis was incorrect. Some of these commenters urged
the IRS to impose the penalty only where a taxpayer deliberately
attempts to shift income.
The IRS and Treasury have determined that it is not necessary to
revise the proposed and temporary regulations in response to these
comments. The proposed and temporary regulations do not adopt a ``no-
fault'' approach. Like other penalty statutes, the provisions of
section 6662(e) incorporate standards of reasonable cause and good
faith. See section 6662(e)(3)(D) and section 6664(c). Accordingly,
under both the temporary and final regulations, the penalty is excused
if the taxpayer, based upon the data that was reasonably available to
it, reasonably concluded that its analysis was the most reliable and
satisfied the documentation requirement of the regulations. In such a
case, the taxpayer may be subject to an adjustment if the IRS later
employs a different analysis or uses different data leading to a
different result, but an adjustment does not necessarily trigger the
imposition of the penalty. The regulations provide guidance on the
interpretation of the reasonableness standard. See Sec. 1.6662-6(d).
Reported Results
In response to comments, the final regulations clarify the method
of determining reported results, and what will be considered amended
returns for taxpayers electing Accelerated Issue Resolution or similar
procedures.
Evaluation of Methods Other Than the Method Actually Applied
Under Sec. 1.6662-6T(d)(2)(ii) of the temporary regulations,
taxpayers may satisfy the specified method requirement by selecting and
applying a specified method in a reasonable manner. In order to meet
this requirement, taxpayers must make a reasonable effort to evaluate
the potential applicability of the other specified methods in a manner
consistent with the principles of the best method rule of Sec. 1.482-
1(c). Some commenters argued that this requirement would be overly
burdensome because it could mean that the taxpayer effectively must
disprove all other methods in order to avoid imposition of the penalty.
Others asserted that the requirement in Sec. 1.6662-6T(d)(2)(ii) that
taxpayers make a reasonable effort to evaluate other methods in a
manner consistent with the principles of the best method rule was
inconsistent with language contained in Sec. 1.482-1(c)(1).
The notion of a comparison of methods is inherent in the best
method rule of Sec. 1.482-1(c)(1). In order to be judged the ``best''
method, the method to some extent must be compared to other methods.
The examples set forth under Sec. 1.482-8 illustrate an appropriate
application of a comparative analysis. In introducing these examples,
Sec. 1.482-8 states that ``a method may be applied in a particular case
only if the comparability, quality of data, and reliability of
assumptions under that method make it more reliable than any other
available measure of the arm's length result.''
The comparison to be done under the best method rule will not
necessarily entail a thorough analysis under every potentially
applicable method. The nature of the available data will often indicate
either that a particular method should be the most reliable or that
certain other specified methods would be clearly unreliable. Indeed, in
some cases, it might be reasonable to conclude that a particular method
is likely to be the most reliable with virtually no consideration of
other potentially applicable methods. For example, if the comparable
uncontrolled price method can be applied based upon a closely
comparable uncontrolled transaction, it normally would be unnecessary
to give any serious consideration to the other methods. Whether more
extensive consideration could be needed in other cases will depend on
the facts and circumstances.
Accordingly, the final regulations retain the notion that
comparisons to other specified methods may have to be made and the
extent of such comparisons may vary depending upon the data available
and other factors.
Most Current Data Requirement
One of the factors taken into account in determining whether a
taxpayer reasonably selected and applied a specified method is whether
the taxpayer made a reasonable search for data. The proposed and
temporary regulations provided that this factor would not be met unless
the taxpayer used the most current data that was available prior to
filing the tax return. Section 1.6662-6T(d)(2)(iii)(B).
Commenters expressed concern that this requirement would be unduly
burdensome because it would require a taxpayer to continually update
its transfer pricing analysis until the filing of its tax return.
Commenters also argued that this rule could lead to an increased
incidence of double taxation if particular foreign jurisdictions did
not permit alterations to transactional prices either after the
transaction or after the close of a taxable year.
In response to these comments, the requirement to consider the most
[[Page 4878]]
current available data has been modified. Under the final regulations,
taxpayers are expected to use only data available before the end of the
taxable year and consequently have no obligation to continue to search
for data after the close of the taxable year to avoid the penalty.
However, when a taxpayer obtains additional relevant data between the
close of the year and the date on which the tax return is filed (for
example, in connection with transfer pricing analyses conducted with
respect to the subsequent taxable year), the final regulations require
the taxpayer to include such data in its principal documents as
provided in Sec. 1.6662-6(d)(2)(iii)(B)(9). These documents must be
provided to the IRS upon request. These changes are intended to relieve
much of the burden on taxpayers and at the same time to ensure that,
upon examination, the taxpayer provides the IRS with all relevant
information in its possession.
Reasonably Thorough Search for Data
Commenters requested additional guidance regarding the scope of the
term reasonably thorough search for data under Sec. 1.6662-
6(d)(2)(ii)(B). The proposed and temporary regulations provide that, in
determining whether a search for data was reasonably thorough, the
expense of acquiring additional data may be weighed against the dollar
amount of the transactions.
The IRS and Treasury have determined that more specific guidelines
that would be applicable to all situations cannot be provided because
the determination of whether a taxpayer engaged in a reasonable search
for data depends on the facts and circumstances of each case.
Therefore, the final regulations adhere to the general approach of the
proposed and temporary regulations.
However, the final regulations provide a more precise statement of
the rule that governs the determination of whether the taxpayer made a
reasonable search for data. Section 1.6662- 6(d)(2)(ii)(B) of the final
regulations provides that taxpayers may weigh the expense a search for
data against (i) the likelihood that they will find additional data
that will improve the reliability of the results and (ii) the amount by
which any new data would change the taxpayer's taxable income. Thus, a
taxpayer that has located reliable data leading to an analysis that is
unlikely to become more reliable if additional data were located would
not need to continue a search. In addition, as the amount of taxable
income potentially at stake declines (either because of low dollar
amounts of the controlled transactions or because of low variability in
results that are expected under the facts and circumstances), the need
to continue to search for data also decreases.
Experience and Knowledge
Section 1.6662-6(d)(2)(ii)(A) provides that one of the factors
taken into account in determining whether a taxpayer reasonably applied
a specified method is the experience and knowledge of the taxpayer,
including all members of the taxpayer's controlled group. Commenters
objected to this factor because it is not limited to consideration of
the experience and knowledge of the taxpayer. The purpose of this
factor is to consider the experience and knowledge of all the parties
that are likely to be involved in the pricing of the controlled
transactions. If the scope of this factor were limited to the taxpayer
participating in the controlled transaction, the experience and
knowledge of related persons who may have had a role in determining
intercompany prices of the taxpayer might not be taken into account.
Accordingly, this factor has not been changed in the final regulations.
Thresholds for Application
The net adjustment penalty under section 6662(e)(1)(B)(ii)
potentially applies if the net section 482 adjustment exceeds the
lesser of $5 million or 10 percent of the taxpayer's gross receipts.
Some commenters objected to the statutory $5 million threshold,
pointing out that a relatively insignificant error could easily lead to
a $5 million adjustment with respect to very large intercompany
transactions. As a result, taxpayers that made reasonable efforts to
determine an arm's length result might nonetheless be subject to
penalty.
The $5 million threshold for imposition of the penalty is fixed by
statute. However, Sec. 1.6662-6(d)(2)(ii)(G) of the final regulations
has been added to provide that the size of an adjustment in relation to
the size of the controlled transaction is relevant to determining
whether a taxpayer made a reasonable effort to apply a specified or
unspecified method. Accordingly, the fact that a proposed adjustment is
small in relation to the dollar amount of the controlled transaction to
which it relates is relevant in determining if a taxpayer made a
reasonable effort to apply a specified or unspecified method.
Reliance on Prior Analyses
Citing the preamble to the temporary regulations and the 1993
legislative history, some commenters requested that a pricing
methodology that was approved by the IRS on audit or in connection with
an Advanced Pricing Agreement (APA) be considered to satisfy the
specified method requirement of the regulations. In response to this
comment, Sec. 1.6662-6(d)(2)(ii)(F) of the final regulations has been
added to provide that whether a taxpayer relied on a methodology
developed in connection with an APA or approved by the IRS pursuant to
an audit is relevant to determining whether the taxpayer made a
reasonable effort to apply a specified or unspecified method, as long
as the taxpayer applied the agreed method reasonably and consistently
with its prior application, and adjustments have been made for any
material changes in the facts and circumstances since the original
application of that method. Pursuant to Sec. 1.6662-6(d)(3)(ii) (B) and
(C), this factor is also relevant if the taxpayer employed an
unspecified method.
Principal Documents
Section 1.6662-6(d)(2)(iii)(B) of the final regulations provides a
list of principal documents that must be provided to the IRS within 30
days of a request. The proposed and temporary regulations set forth a
contemporaneous documentation requirement pursuant to which all of
these documents must have been in existence at the time that the
taxpayer filed its tax return. In response to comments, several changes
have been made to these provisions.
Under the final regulations, the contemporaneous documentation
requirement does not apply to the summary of data acquired after the
close of the taxable year or the general index of principal and
background documents. Thus, these documents do not have to be prepared
at the time the return is filed.
Several commenters argued that the requirement that the principal
documents generally be provided within 30 days of a request is too
short, but this requirement has not been changed in the final
regulations because the statute mandates this 30-day disclosure period.
Moreover, except for the two principal documents excluded from the
contemporaneous documentation requirement, as described above, all
principal documents are required to be prepared by the time the tax
return is filed. The IRS and Treasury believe that 30 days should be
adequate to provide documents that already exist and that were prepared
with the intention of being provided to the IRS.
Other commenters suggested that the list of documents in
Sec. 1.6662-6(d)(2)(iii)(B) is too specific and that, in
[[Page 4879]]
some cases, it should not be necessary to provide all of the documents
listed. Some of these commenters suggested that the list of documents
be replaced with a more flexible approach under which the documents
required would depend on the facts and circumstances.
The final regulations have not been changed in response to this
comment. The list of principal documents is intended to provide the IRS
with the documents necessary to conduct a complete examination of a
taxpayer's transfer pricing. It is anticipated that all of the
principal documents listed would be needed in connection with all
transfer pricing audits. In addition, the suggested flexible approach
would deprive taxpayers and the IRS of much-needed certainty. In the
absence of the specific guidance provided by the regulations, most
taxpayers would face uncertainty as to the appropriate scope of the
documentation requirement.
Disclosure of Profit Split, Lump Sum, and Unspecified Methods
The proposed and temporary regulations require that the taxpayer
disclose on its tax return if the taxpayer used a profit split method,
an unspecified method, or transferred an intangible in exchange for a
lump sum payment. Commenters expressed concern about this requirement,
particularly with respect to the profit split method. They asserted
that it is inappropriate to impose a penalty on a taxpayer that used a
profit split method, solely because it failed to comply with disclosure
requirements, if the taxpayer otherwise fully complied with the
regulations under section 6662(e). In response to this comment, the
final regulations eliminate the disclosure requirement with respect to
the profit split method, lump sum payments, and unspecified methods.
The IRS and Treasury believe that these matters are more appropriately
addressed under section 6038 and section 6038A of the Internal Revenue
Code governing, in part, information returns on Forms 5471 and 5472.
The IRS intends to review these forms to determine whether they should
be revised.
Effective Date
These regulations are effective February 9, 1996. However,
taxpayers may elect to apply these regulations to all open taxable
years beginning after December 31, 1993.
Special Analyses
It has been determined that this Treasury decision is not a
significant regulatory action as defined in EO 12866. Therefore, a
regulatory assessment is not required. It has also been determined that
section 553(b) of the Administrative Procedure Act (5 U.S.C. chapter 5)
and the Regulatory Flexibility Act (5 U.S.C. chapter 6) do not apply to
the regulations and, therefore, a Regulatory Flexibility Analysis is
not required. Pursuant to section 7805(f) of the Internal Revenue Code,
the notice of proposed rulemaking and temporary regulations preceding
these regulations were sent to the Small Business Administration for
comment on their impact on small business.
Drafting Information
The principal author of these regulations is Carolyn D. Fanaroff of
the Office of the Associate Chief Counsel (International), IRS.
However, other personnel from the IRS and Treasury Department
participated in their development.
List of Subjects
26 CFR Part 1
Income taxes, Reporting and recordkeeping requirements.
26 CFR Part 602
Reporting and recordkeeping requirements.
Adoption of Amendments to the Regulations
Accordingly, 26 CFR parts 1 and 602 are amended as follows:
PART 1--INCOME TAXES
Paragraph 1. The authority for part 1 is amended by removing the
entry ``Sections 1.6662-0 and 1.6662-6T'' and adding an entry in
numerical order to read as follows:
Authority: 26 U.S.C. 7805. * * *
Section 1.6662-6 also issued under 26 U.S.C. 6662. * * *
Par. 2. Section 1.6662-0 is amended by:
1. Revising the entry for Sec. 1.6662-5T.
2. Adding an entry for Sec. 1.6662-6.
3. Removing the entry for Sec. 1.6662-6T.
The revisions and additions read as follows:
Sec. 1.6662-0 Table of contents.
* * * * *
Sec. 1.6662-5T Substantial and gross valuation misstatements under
chapter 1 (Temporary).
(a) through (e)(3) [Reserved].
(e)(4) Tests related to section 481.
(i) Substantial valuation statement.
(ii) Gross valuation misstatement.
(iii) Property.
(f) through (i) [Reserved].
(j) Transactions between persons described in section 482 and
net section 482 transfer price adjustments.
Sec. 1.6662-6 Transactions between persons described in section 482
and net section 482 transfer price adjustments.
(a) In general.
(1) Purpose and scope.
(2) Reported results.
(3) Identical terms used in the section 482 regulations.
(b) The transactional penalty.
(1) Substantial valuation misstatement.
(2) Gross valuation misstatement.
(3) Reasonable cause and good faith.
(c) Net adjustment penalty.
(1) Net section 482 adjustment.
(2) Substantial valuation misstatement.
(3) Gross valuation misstatement.
(4) Setoff allocation rule.
(5) Gross receipts.
(6) Coordination with reasonable cause exception under section
6664(c).
(7) Examples.
(d) Amounts excluded from net section 482 adjustments.
(1) In general.
(2) Application of a specified section 482 method.
(i) In general.
(ii) Specified method requirement.
(iii) Documentation requirement.
(A) In general.
(B) Principal documents.
(C) Background documents.
(3) Application of an unspecified method.
(i) In general.
(ii) Unspecified method requirement.
(A) In general.
(B) Specified method potentially applicable.
(C) No specified method applicable.
(iii) Documentation requirement.
(A) In general.
(B) Principal and background documents.
(4) Certain foreign to foreign transactions.
(5) Special rule.
(6) Examples.
(e) Special rules in the case of carrybacks and carryovers.
(f) Rules for coordinating between the transactional penalty and
the net adjustment penalty.
(1) Coordination of a net section 482 adjustment subject to the
net adjustment penalty and a gross valuation misstatement subject to
the transactional penalty.
(2) Coordination of net section 482 adjustment subject to the
net adjustment penalty and substantial valuation misstatements
subject to the transactional penalty.
(3) Examples.
(g) Effective date.
* * * * *
Par. 3. Section 1.6662-5T is revised to read as follows:
Sec. 1.6662-5T Substantial and gross valuation misstatements under
chapter 1 (Temporary).
(a) through (e)(3) [Reserved]. For further information, see
Sec. 1.6662-5(a) through (e)(3).
(e)(4) Tests related to section 482--(i) Substantial valuation
misstatement. There is a substantial valuation
[[Page 4880]]
misstatement if there is a misstatement described in Sec. 1.6662-6
(b)(1) or (c)(1) (concerning substantial valuation misstatements
pertaining to transactions between related persons).
(ii) Gross valuation misstatement. There is a gross valuation
misstatement if there is a misstatement described in Sec. 1.6662-6
(b)(2) or (c)(2) (concerning gross valuation misstatements pertaining
to transactions between related persons).
(iii) Property. For purposes of this section, the term property
refers to both tangible and intangible property. Tangible property
includes property such as land, buildings, fixtures and inventory.
Intangible property includes property such as goodwill. Covenants not
to compete, leaseholds, patents, contract rights, debts and choses in
action, and any other item of intangible property described in
Sec. 1.482-4(b).
(f) through (h) [Reserved] For further information, see
Sec. 1.6662-5 (f) through (h).
(i) [Reserved].
(j) Transactions between persons described in section 482 and net
section 482 transfer price adjustments. For rules relating to the
penalty imposed with respect to a substantial or gross valuation
misstatement arising from a section 482 allocation, see Sec. 1.6662-6.
Par. 4. Section 1.6662-6 is added to read as follows:
Sec. 1.6662-6 Transactions between persons described in section 482
and net section 482 transfer price adjustments.
(a) In general--(1) Purpose and scope. Pursuant to section 6662(e)
a penalty is imposed on any underpayment attributable to a substantial
valuation misstatement pertaining to either a transaction between
persons described in section 482 (the transactional penalty) or a net
section 482 transfer price adjustment (the net adjustment penalty). The
penalty is equal to 20 percent of the underpayment of tax attributable
to that substantial valuation misstatement. Pursuant to section 6662(h)
the penalty is increased to 40 percent of the underpayment in the case
of a gross valuation misstatement with respect to either penalty.
Paragraph (b) of this section provides specific rules related to the
transactional penalty. Paragraph (c) of this section provides specific
rules related to the net adjustment penalty, and paragraph (d) of this
section describes amounts that will be excluded for purposes of
calculating the net adjustment penalty. Paragraph (e) of this section
sets forth special rules in the case of carrybacks and carryovers.
Paragraph (f) of this section provides coordination rules between
penalties. Paragraph (g) of this section provides the effective date of
this section.
(2) Reported results. Whether an underpayment is attributable to a
substantial or gross valuation misstatement must be determined from the
results of controlled transactions that are reported on an income tax
return, regardless of whether the amount reported differs from the
transaction price initially reflected in the taxpayer's books and
records. The results of controlled transactions that are reported on an
amended return will be used only if the amended return is filed before
the Internal Revenue Service has contacted the taxpayer regarding the
corresponding original return. A written statement furnished by a
taxpayer subject to the Coordinated Examination Program or a written
statement furnished by the taxpayer when electing Accelerated Issue
Resolution or similar procedures will be considered an amended return
for purposes of this section if it satisfies either the requirements of
a qualified amended return for purposes of Sec. 1.6664-2(c)(3) or such
requirements as the Commissioner may prescribe by revenue procedure. In
the case of a taxpayer that is a member of a consolidated group, the
rules of this paragraph (a)(2) apply to the consolidated income tax
return of the group.
(3) Identical terms used in the section 482 regulations. For
purposes of this section, the terms used in this section shall have the
same meaning as identical terms used in regulations under section 482.
(b) The transactional penalty--(1) Substantial valuation
misstatement. In the case of any transaction between related persons,
there is a substantial valuation misstatement if the price for any
property or services (or for the use of property) claimed on any return
is 200 percent or more (or 50 percent or less) of the amount determined
under section 482 to be the correct price.
(2) Gross valuation misstatement. In the case of any transaction
between related persons, there is a gross valuation misstatement if the
price for any property or services (or for the use of property) claimed
on any return is 400 percent or more (or 25 percent or less) of the
amount determined under section 482 to be the correct price.
(3) Reasonable cause and good faith. Pursuant to section 6664(c),
the transactional penalty will not be imposed on any portion of an
underpayment with respect to which the requirements of Sec. 1.6664-4
are met. In applying the provisions of Sec. 1.6664-4 in a case in which
the taxpayer has relied on professional analysis in determining its
transfer pricing, whether the professional is an employee of, or
related to, the taxpayer is not determinative in evaluating whether the
taxpayer reasonably relied in good faith on advice. A taxpayer that
meets the requirements of paragraph (d) of this section with respect to
an allocation under section 482 will be treated as having established
that there was reasonable cause and good faith with respect to that
item for purposes of Sec. 1.6664-4. If a substantial or gross valuation
misstatement under the transactional penalty also constitutes (or is
part of) a substantial or gross valuation misstatement under the net
adjustment penalty, then the rules of paragraph (d) of this section
(and not the rules of Sec. 1.6664-4) will be applied to determine
whether the adjustment is excluded from calculation of the net section
482 adjustment.
(c) Net adjustment penalty--(1) Net section 482 adjustment. For
purposes of this section, the term net section 482 adjustment means the
sum of all increases in the taxable income of a taxpayer for a taxable
year resulting from allocations under section 482 (determined without
regard to any amount carried to such taxable year from another taxable
year) less any decreases in taxable income attributable to collateral
adjustments as described in Sec. 1.482-1(g). For purposes of this
section, amounts that meet the requirements of paragraph (d) of this
section will be excluded from the calculation of the net section 482
adjustment. Substantial and gross valuation misstatements that are
subject to the transactional penalty under paragraph (b) (1) or (2) of
this section are included in determining the amount of the net section
482 adjustment. See paragraph (f) of this section for coordination
rules between penalties.
(2) Substantial valuation misstatement. There is a substantial
valuation misstatement if a net section 482 adjustment is greater than
the lesser of 5 million dollars or ten percent of gross receipts.
(3) Gross valuation misstatement. There is a gross valuation
misstatement if a net section 482 adjustment is greater than the lesser
of 20 million dollars or twenty percent of gross receipts.
(4) Setoff allocation rule. If a taxpayer meets the requirements of
paragraph (d) of this section with respect to some, but not all of the
allocations made under section 482, then for purposes of determining
the net section 482 adjustment, setoffs, as taken into account under
Sec. 1.482-1(g)(4), must be
[[Page 4881]]
applied ratably against all such allocations. The following example
illustrates the principle of this paragraph (c)(4):
Example. (i) The Internal Revenue Service makes the following
section 482 adjustments for the taxable year:
(1) Attributable to an increase in gross income because of an
increase in royalty payments........................................ $
9
,
0
0
0
,
0
0
0
(2) Attributable to an increase in sales proceeds due to a decrease
in the profit margin of a related buyer............................. 6
,
0
0
0
,
0
0
0
(3) Because of a setoff under Sec. 1.482-1(g)(4).................... (
5
,
0
0
0
,
0
0
0
)
--
Total section 482 adjustments.................................... 1
0
,
0
0
0
,
0
0
0
(ii) The taxpayer meets the requirements of paragraph (d) with
respect to adjustment number one, but not with respect to adjustment
number two. The five million dollar setoff will be allocated ratably
against the nine million dollar adjustment ($9,000,000/
$15,000,000 x $5,000,000=$3,000,000) and the six million dollar
adjustment ($6,000,000/$15,000,000 x $5,000,000=$2,000,000).
Accordingly, in determining the net section 482 adjustment, the nine
million dollar adjustment is reduced to six million dollars
($9,000,000-$3,000,000) and the six million dollar adjustment is
reduced to four million dollars ($6,000,000-$2,000,000). Therefore,
the net section 482 adjustment equals four million dollars.
(5) Gross receipts. For purposes of this section, gross receipts
must be computed pursuant to the rules contained in Sec. 1.448-
1T(f)(2)(iv), as adjusted to reflect allocations under section 482.
(6) Coordination with reasonable cause exception under section
6664(c). Pursuant to section 6662(e)(3)(D), a taxpayer will be treated
as having reasonable cause under section 6664(c) for any portion of an
underpayment attributable to a net section 482 adjustment only if the
taxpayer meets the requirements of paragraph (d) of this section with
respect to that portion.
(7) Examples. The principles of this paragraph (c) are illustrated
by the following examples:
Example 1. (i) The Internal Revenue Service makes the following
section 482 adjustments for the taxable year:
(1) Attributable to an increase in gross income because of
an increase in royalty payments........................... $2,000,000
(2) Attributable to an increase in sales proceeds due to a
decrease in the profit margin of a related buyer.......... 2,500,000
(3) Attributable to a decrease in the cost of goods sold
because of a decrease in the cost plus mark-up of a
related seller............................................ 2,000,000
------------
Total section 482 adjustments.......................... 6,500,000
(ii) None of the adjustments are excluded under paragraph (d) of
this section. The net section 482 adjustment ($6.5 million) is
greater than five million dollars. Therefore, there is a substantial
valuation misstatement.
Example 2. (i) The Internal Revenue Service makes the following
section 482 adjustments for the taxable year:
(1) Attributable to an increase in gross income because of an
increase in royalty payments........................................ $
1
1
,
0
0
0
,
0
0
0
(2) Attributable to an increase in sales proceeds due to a decrease
in the profit margin of a related buyer............................. 2
,
0
0
0
,
0
0
0
(3) Because of a setoff under Sec. 1.482-1(g)(4).................... (
9
,
0
0
0
,
0
0
0
)
--
Total section 482 adjustments.................................... 4
,
0
0
0
,
0
0
0
(ii) The taxpayer has gross receipts of sixty million dollars
after taking into account all section 482 adjustments. None of the
adjustments are excluded under paragraph (d) of this section. The
net section 482 adjustment ($4 million) is less than the lesser of
five million dollars or ten percent of gross receipts ($60
million x 10%=$6 million). Therefore, there is no substantial
valuation misstatement.
Example 3. (i) The Internal Revenue Service makes the following
section 482 adjustments to the income of an affiliated group that
files a consolidated return for the taxable year:
(1) Attributable to Member A............................... $1,500,000
(2) Attributable to Member B............................... 1,000,000
(3) Attributable to Member C............................... 2,000,000
------------
Total section 482 adjustments.......................... 4,500,000
(ii) Members A, B, and C have gross receipts of 20 million
dollars, 12 million dollars, and 11 million dollars, respectively.
Thus, the total gross receipts are 43 million dollars. None of the
adjustments are excluded under paragraph (d) of this section. The
net section 482 adjustment ($4.5 million) is greater than the lesser
of five million dollars or ten percent of gross receipts ($43
million x 10% = $4.3 million). Therefore, there is a substantial
valuation misstatement.
Example 4. (i) The Internal Revenue Service makes the following
section 482 adjustments to the income of an affiliated group that
files a consolidated return for the taxable year:
(1) Attributable to Member A............................... $1,500,000
(2) Attributable to Member B............................... 3,000,000
(3) Attributable to Member C............................... 2,500,000
------------
Total section 482 adjustments.......................... 7,000,000
(ii) Members A, B, and C have gross receipts of 20 million
dollars, 35 million dollars, and 40 million dollars, respectively.
Thus, the total gross receipts are 95 million dollars. None of the
adjustments are excluded under paragraph (d) of this section. The
net section 482 adjustment (7 million dollars) is greater than the
lesser of five million dollars or ten percent of gross receipts ($95
million x 10% = $9.5 million). Therefore, there is a substantial
valuation misstatement.
Example 5. (i) The Internal Revenue Service makes the following
section 482 adjustments to the income of an affiliated group that
files a consolidated return for the taxable year:
(1) Attributable to Member A............................... $2,000,000
(2) Attributable to Member B............................... 1,000,000
(3) Attributable to Member C............................... 1,500,000
------------
Total section 482 adjustments.......................... 4,500,000
(ii) Members A, B, and C have gross receipts of 10 million
dollars, 35 million dollars, and 40 million dollars, respectively.
Thus, the total gross receipts are 85 million dollars. None of the
adjustments are excluded under paragraph (d) of this section. The
net section 482 adjustment ($4.5 million) is less than the lesser of
five million dollars or ten percent of gross receipts ($85 million
x 10%=$8.5 million). Therefore, there is no substantial valuation
misstatement even though individual member A's adjustment ($2
million) is greater than ten percent of its individual gross
receipts ($10 million x 10%=$1 million).
(d) Amounts excluded from net section 482 adjustments--(1) In
general. An amount is excluded from the calculation of a net section
482 adjustment if the requirements of paragraph (d) (2), (3), or (4) of
this section are met with respect to that amount.
(2) Application of a specified section 482 method--(i) In general.
An amount is excluded from the calculation of a net section 482
adjustment if the taxpayer establishes that both the specified method
and documentation requirements of this paragraph (d)(2) are met with
respect to that amount. For purposes of this paragraph (d), a method
will be considered a specified method if it is described in the
regulations under section 482 and the method applies to transactions of
the type under review. A qualified cost sharing arrangement is
considered a specified method. See Sec. 1.482-7. An unspecified method
is not considered a specified method. See Secs. 1.482-3(e) and 1.482-
4(d).
(ii) Specified method requirement. The specified method requirement
is met if the taxpayer selects and applies
[[Page 4882]]
a specified method in a reasonable manner. The taxpayer's selection and
application of a specified method is reasonable only if, given the
available data and the applicable pricing methods, the taxpayer
reasonably concluded that the method (and its application of that
method) provided the most reliable measure of an arm's length result
under the principles of the best method rule of Sec. 1.482-1(c). A
taxpayer can reasonably conclude that a specified method provided the
most reliable measure of an arm's length result only if it has made a
reasonable effort to evaluate the potential applicability of the other
specified methods in a manner consistent with the principles of the
best method rule. The extent of this evaluation generally will depend
on the nature of the available data, and it may vary from case to case
and from method to method. This evaluation may not entail an exhaustive
analysis or detailed application of each method. Rather, after a
reasonably thorough search for relevant data, the taxpayer should
consider which method would provide the most reliable measure of an
arm's length result given that data. The nature of the available data
may enable the taxpayer to conclude reasonably that a particular
specified method provides a more reliable measure of an arm's length
result than one or more of the other specified methods, and accordingly
no further consideration of such other specified methods is needed.
Further, it is not necessary for a taxpayer to conclude that the
selected specified method provides a more reliable measure of an arm's
length result than any unspecified method. For examples illustrating
the selection of a specified method consistent with this paragraph
(d)(2)(ii), see Sec. 1.482-8. Whether the taxpayer's conclusion was
reasonable must be determined from all the facts and circumstances. The
factors relevant to this determination include the following:
(A) The experience and knowledge of the taxpayer, including all
members of the taxpayer's controlled group.
(B) The extent to which reliable data was available and the data
was analyzed in a reasonable manner. A taxpayer must engage in a
reasonably thorough search for the data necessary to determine which
method should be selected and how it should be applied. In determining
the scope of a reasonably thorough search for data, the expense of
additional efforts to locate new data may be weighed against the
likelihood of finding additional data that would improve the
reliability of the results and the amount by which any new data would
change the taxpayer's taxable income. Furthermore, a taxpayer must use
the most current reliable data that is available before the end of the
taxable year in question. Although the taxpayer is not required to
search for relevant data after the end of the taxable year, the
taxpayer must maintain as a principal document described in paragraph
(d)(2)(iii)(B)(9) of this section any relevant data it obtains after
the end of the taxable year but before the return is filed, if that
data would help determine whether the taxpayer has reported its true
taxable income.
(C) The extent to which the taxpayer followed the relevant
requirements set forth in regulations under section 482 with respect to
the application of the method.
(D) The extent to which the taxpayer reasonably relied on a study
or other analysis performed by a professional qualified to conduct such
a study or analysis, including an attorney, accountant, or economist.
Whether the professional is an employee of, or related to, the taxpayer
is not determinative in evaluating the reliability of that study or
analysis, as long as the study or analysis is objective, thorough, and
well reasoned. Such reliance is reasonable only if the taxpayer
disclosed to the professional all relevant information regarding the
controlled transactions at issue. A study or analysis that was
reasonably relied upon in a prior year may reasonably be relied upon in
the current year if the relevant facts and circumstances have not
changed or if the study or analysis has been appropriately modified to
reflect any change in facts and circumstances.
(E) If the taxpayer attempted to determine an arm's length result
by using more than one uncontrolled comparable, whether the taxpayer
arbitrarily selected a result that corresponds to an extreme point in
the range of results derived from the uncontrolled comparables. Such a
result generally would not likely be closest to an arm's length result.
If the uncontrolled comparables that the taxpayer uses to determine an
arm's length result are described in Sec. 1.482-1(e)(2)(ii)(B), one
reasonable method of selecting a point in the range would be that
provided in Sec. 1.482-1(e)(3).
(F) The extent to which the taxpayer relied on a transfer pricing
methodology developed and applied pursuant to an Advance Pricing
Agreement for a prior taxable year, or specifically approved by the
Internal Revenue Service pursuant to a transfer pricing audit of the
transactions at issue for a prior taxable year, provided that the
taxpayer applied the approved method reasonably and consistently with
its prior application, and the facts and circumstances surrounding the
use of the method have not materially changed since the time of the
IRS's action, or if the facts and circumstances have changed in a way
that materially affects the reliability of the results, the taxpayer
makes appropriate adjustments to reflect such changes.
(G) The size of a net transfer pricing adjustment in relation to
the size of the controlled transaction out of which the adjustment
arose.
(iii) Documentation requirement--(A) In general. The documentation
requirement of this paragraph (d)(2)(iii) is met if the taxpayer
maintains sufficient documentation to establish that the taxpayer
reasonably concluded that, given the available data and the applicable
pricing methods, the method (and its application of that method)
provided the most accurate measure of an arm's length result under the
principles of the best method rule in Sec. 1.482-1(c), and provides
that documentation to the Internal Revenue Service within 30 days of a
request for it in connection with an examination of the taxable year to
which the documentation relates. With the exception of the
documentation described in paragraphs (d)(2)(iii)(B) (9) and (10) of
this section, that documentation must be in existence when the return
is filed. The district director may, in his discretion, excuse a minor
or inadvertent failure to provide required documents, but only if the
taxpayer has made a good faith effort to comply, and the taxpayer
promptly remedies the failure when it becomes known. The required
documentation is divided into two categories, principal documents and
background documents as described in paragraphs (d)(2)(iii) (B) and (C)
of this section.
(B) Principal documents. The principal documents should accurately
and completely describe the basic transfer pricing analysis conducted
by the taxpayer. The documentation must include the following--
(1) An overview of the taxpayer's business, including an analysis
of the economic and legal factors that affect the pricing of its
property or services;
(2) A description of the taxpayer's organizational structure
(including an organization chart) covering all related parties engaged
in transactions potentially relevant under section 482, including
foreign affiliates whose transactions directly or indirectly affect the
pricing of property or services in the United States;
[[Page 4883]]
(3) Any documentation explicitly required by the regulations under
section 482;
(4) A description of the method selected and an explanation of why
that method was selected;
(5) A description of the alternative methods that were considered
and an explanation of why they were not selected;
(6) A description of the controlled transactions (including the
terms of sale) and any internal data used to analyze those
transactions. For example, if a profit split method is applied, the
documentation must include a schedule providing the total income,
costs, and assets (with adjustments for different accounting practices
and currencies) for each controlled taxpayer participating in the
relevant business activity and detailing the allocations of such items
to that activity;
(7) A description of the comparables that were used, how
comparability was evaluated, and what (if any) adjustments were made;
(8) An explanation of the economic analysis and projections relied
upon in developing the method. For example, if a profit split method is
applied, the taxpayer must provide an explanation of the analysis
undertaken to determine how the profits would be split;
(9) A description or summary of any relevant data that the taxpayer
obtains after the end of the tax year and before filing a tax return,
which would help determine if a taxpayer selected and applied a
specified method in a reasonable manner; and
(10) A general index of the principal and background documents and
a description of the recordkeeping system used for cataloging and
accessing those documents.
(C) Background documents. The assumptions, conclusions, and
positions contained in principal documents ordinarily will be based on,
and supported by, additional background documents. Documents that
support the principal documentation may include the documents listed in
Sec. 1.6038A-3(c) that are not otherwise described in paragraph
(d)(2)(iii)(B) of this section. Every document listed in those
regulations may not be relevant to pricing determinations under the
taxpayer's specific facts and circumstances and, therefore, each of
those documents need not be maintained in all circumstances. Moreover,
other documents not listed in those regulations may be necessary to
establish that the taxpayer's method was selected and applied in the
way that provided the most accurate measure of an arm's length result
under the principles of the best method rule in Sec. 1.482-1(c).
Background documents need not be provided to the Internal Revenue
Service in response to a request for principal documents. If the
Internal Revenue Service subsequently requests background documents, a
taxpayer must provide that documentation to the Internal Revenue
Service within 30 days of the request. However, the district director
may, in his discretion, extend the period for producing the background
documentation.
(3) Application of an unspecified method--(i) In general. An
adjustment is excluded from the calculation of a net section 482
adjustment if the taxpayer establishes that both the unspecified method
and documentation requirements of this paragraph (d)(3) are met with
respect to that amount.
(ii) Unspecified method requirement--(A) In general. If a method
other than a specified method was applied, the unspecified method
requirement is met if the requirements of paragraph (d)(3)(ii) (B) or
(C) of this section, as appropriate, are met.
(B) Specified method potentially applicable. If the transaction is
of a type for which methods are specified in the regulations under
section 482, then a taxpayer will be considered to have met the
unspecified method requirement if the taxpayer reasonably concludes,
given the available data, that none of the specified methods was likely
to provide a reliable measure of an arm's length result, and that it
selected and applied an unspecified method in a way that would likely
provide a reliable measure of an arm's length result. A taxpayer can
reasonably conclude that no specified method was likely to provide a
reliable measure of an arm's length result only if it has made a
reasonable effort to evaluate the potential applicability of the
specified methods in a manner consistent with the principles of the
best method rule. However, it is not necessary for a taxpayer to
conclude that the selected method provides a more reliable measure of
an arm's length result than any other unspecified method. Whether the
taxpayer's conclusion was reasonable must be determined from all the
facts and circumstances. The factors relevant to this conclusion
include those set forth in paragraph (d)(2)(ii) of this section.
(C) No specified method applicable. If the transaction is of a type
for which no methods are specified in the regulations under section
482, then a taxpayer will be considered to have met the unspecified
method requirement if it selected and applied an unspecified method in
a reasonable manner. For purposes of this paragraph (d)(3)(ii)(C), a
taxpayer's selection and application is reasonable if the taxpayer
reasonably concludes that the method (and its application of that
method) provided the most reliable measure of an arm's length result
under the principles of the best method rule in Sec. 1.482-1(c).
However, it is not necessary for a taxpayer to conclude that the
selected method provides a more reliable measure of an arm's length
result than any other unspecified method. Whether the taxpayer's
conclusion was reasonable must be determined from all the facts and
circumstances. The factors relevant to this conclusion include those
set forth in paragraph (d)(2)(ii) of this section.
(iii) Documentation requirement--(A) In general. The documentation
requirement of this paragraph (d)(3) is met if the taxpayer maintains
sufficient documentation to establish that the unspecified method
requirement of paragraph (d)(3)(ii) of this section is met and provides
that documentation to the Internal Revenue Service within 30 days of a
request for it. That documentation must be in existence when the return
is filed. The district director may, in his discretion, excuse a minor
or inadvertent failure to provide required documents, but only if the
taxpayer has made a good faith effort to comply, and the taxpayer
promptly remedies the failure when it becomes known.
(B) Principal and background documents. See paragraphs (d)(2)(iii)
(B) and (C) of this section for rules regarding these two categories of
required documentation.
(4) Certain foreign to foreign transactions. For purposes of
calculating a net section 482 adjustment, any increase in taxable
income resulting from an allocation under section 482 that is
attributable to any controlled transaction solely between foreign
corporations will be excluded unless the treatment of that transaction
affects the determination of either corporation's income from sources
within the United States or taxable income effectively connected with
the conduct of a trade or business within the United States.
(5) Special rule. If the regular tax (as defined in section 55(c))
imposed on the taxpayer is determined by reference to an amount other
than taxable income, that amount shall be treated as the taxable income
of the taxpayer for purposes of section 6662(e)(3). Accordingly, for
taxpayers whose regular tax is determined by reference to an amount
other than taxable income, the increase in that amount resulting
[[Page 4884]]
from section 482 allocations is the taxpayer's net section 482
adjustment.
(6) Examples. The principles of this paragraph (d) are illustrated
by the following examples:
Example 1. (i) The Internal Revenue Service makes the following
section 482 adjustments for the taxable year:
(1) Attributable to an increase in gross income because of
an increase in royalty payments........................... $9,000,000
(2) Not a 200 percent or 400 percent adjustment............ 2,000,000
(3) Attributable to a decrease in the cost of goods sold
because of a decrease in the cost plus mark-up of a
related seller............................................ 9,000,000
------------
Total section 482 adjustments.......................... 20,000,000
(ii) The taxpayer has gross receipts of 75 million dollars after
all section 482 adjustments. The taxpayer establishes that for
adjustments number one and three, it applied a transfer pricing
method specified in section 482, the selection and application of
the method was reasonable, it documented the pricing analysis, and
turned that documentation over to the IRS within 30 days of a
request. Accordingly, eighteen million dollars is excluded from the
calculation of the net section 482 adjustment. Because the net
section 482 adjustment is two million dollars, there is no
substantial valuation misstatement.
Example 2. (i) The Internal Revenue Service makes the following
section 482 adjustments for the taxable year:
(1) Attributable to an increase in gross income because of
an increase in royalty payments........................... $9,000,000
(2) Attributable to an adjustment that is 200 percent or
more of the correct section 482 price..................... 2,000,000
(3) Attributable to a decrease in the cost of goods sold
because of a decrease in the cost plus mark-up of a
related seller............................................ 9,000,000
------------
Total section 482 adjustments.......................... 20,000,000
(ii) The taxpayer has gross receipts of 75 million dollars after
all section 482 adjustments. The taxpayer establishes that for
adjustments number one and three, it applied a transfer pricing
method specified in section 482, the selection and application of
the method was reasonable, it documented that analysis, and turned
the documentation over to the IRS within 30 days. Accordingly,
eighteen million dollars is excluded from the calculation of the
section 482 transfer pricing adjustments for purposes of applying
the five million dollar or 10% of gross receipts test. Because the
net section 482 adjustment is only two million dollars, the taxpayer
is not subject to the net adjustment penalty. However, the taxpayer
may be subject to the transactional penalty on the underpayment of
tax attributable to the two million dollar adjustment.
Example 3. CFC1 and CFC2 are controlled foreign corporations
within the meaning of section 957. Applying section 482, the IRS
disallows a deduction for 25 million dollars of the interest that
CFC1 paid to CFC2, which results in CFC1's U.S. shareholder having a
subpart F inclusion in excess of five million dollars. No other
adjustments under section 482 are made with respect to the
controlled taxpayers. However, the increase has no effect upon the
determination of CFC1's or CFC2's income from sources within the
United States or taxable income effectively connected with the
conduct of a trade or business within the United States.
Accordingly, there is no substantial valuation misstatement.
(e) Special rules in the case of carrybacks and carryovers. If
there is a substantial or gross valuation misstatement for a taxable
year that gives rise to a loss, deduction or credit that is carried to
another taxable year, the transactional penalty and the net adjustment
penalty will be imposed on any resulting underpayment of tax in that
other taxable year. In determining whether there is a substantial or
gross valuation misstatement for a taxable year, no amount carried from
another taxable year shall be included. The following example
illustrates the principle of this paragraph (e):
Example. The Internal Revenue Service makes a section 482
adjustment of six million dollars in taxable year 1, no portion of
which is excluded under paragraph (d) of this section. The
taxpayer's income tax return for year 1 reported a loss of three
million dollars, which was carried to taxpayer's year 2 year income
tax return and used to reduce income taxes otherwise due with
respect to year 2. A determination is made that the six million
dollar allocation constitutes a substantial valuation misstatement,
and a penalty is imposed on the underpayment of tax in year 1
attributable to the substantial valuation misstatement and on the
underpayment of tax in year 2 attributable to the disallowance of
the net operating loss in year 2. For purposes of determining
whether there is a substantial or gross valuation misstatement for
year 2, the three million dollar reduction of the net operating loss
will not be added to any section 482 adjustments made with respect
to year 2.
(f) Rules for coordinating between the transactional penalty and
the net adjustment penalty--(1) Coordination of a net section 482
adjustment subject to the net adjustment penalty and a gross valuation
misstatement subject to the transactional penalty. In determining
whether a net section 482 adjustment exceeds five million dollars or 10
percent of gross receipts, an adjustment attributable to a substantial
or gross valuation misstatement that is subject to the transactional
penalty will be taken into account. If the net section 482 adjustment
exceeds five million dollars or ten percent of gross receipts, any
portion of such amount that is attributable to a gross valuation
misstatement will be subject to the transactional penalty at the forty
percent rate, but will not also be subject to net adjustment penalty at
a twenty percent rate. The remaining amount is subject to the net
adjustment penalty at the twenty percent rate, even if such amount is
less than the lesser of five million dollars or ten percent of gross
receipts.
(2) Coordination of net section 482 adjustment subject to the net
adjustment penalty and substantial valuation misstatements subject to
the transactional penalty. If the net section 482 adjustment exceeds
twenty million dollars or 20 percent of gross receipts, the entire
amount of the adjustment is subject to the net adjustment penalty at a
forty percent rate. No portion of the adjustment is subject to the
transactional penalty at a twenty percent rate.
(3) Examples. The following examples illustrate the principles of
this paragraph (f):
Example 1. (i) Applying section 482, the Internal Revenue
Service makes the following adjustments for the taxable year:
(1) Attributable to an adjustment that is 400 percent or
more of the correct section 482 arm's length result....... $2,000,000
(2) Not a 200 or 400 percent adjustment.................... 2,500,000
------------
Total.................................................. 4,500,000
(ii) The taxpayer has gross receipts of 75 million dollars after
all section 482 adjustments. None of the adjustments is excluded
under paragraph (d) (Amounts excluded from net section 482
adjustments) of this section, in determining the five million dollar
or 10% of gross receipts test under section 6662(e)(1)(B)(ii). The
net section 482 adjustment (4.5 million dollars) is less than the
lesser of five million dollars or ten percent of gross receipts ($75
million x 10% = $7.5 million). Thus, there is no substantial
valuation misstatement. However, the two million dollar adjustment
is attributable to a gross valuation misstatement. Accordingly, the
taxpayer may be subject to a penalty, under section 6662(h), equal
to 40 percent of the underpayment of tax attributable to the gross
valuation misstatement of two million dollars. The 2.5 million
dollar adjustment is not subject to a penalty under section
6662(b)(3).
Example 2. The facts are the same as in Example 1, except the
taxpayer has gross receipts of 40 million dollars. The net section
482 adjustment ($4.5 million) is greater than the lesser of five
million dollars or ten percent of gross receipts ($40 million x
10%
[[Page 4885]]
= $4 million). Thus, the five million dollar or 10% of gross receipts
test has been met. The two million dollar adjustment is attributable
to a gross valuation misstatement. Accordingly, the taxpayer is
subject to a penalty, under section 6662(h), equal to 40 percent of
the underpayment of tax attributable to the gross valuation
misstatement of two million dollars. The 2.5 million dollar
adjustment is subject to a penalty under sections 6662(a) and
6662(b)(3), equal to 20 percent of the underpayment of tax
attributable to the substantial valuation misstatement.
Example 3. (i) Applying section 482, the Internal Revenue
Service makes the following transfer pricing adjustments for the
taxable year:
(1) Attributable to an adjustment that is 400 percent or
more of the correct section 482 arm's length result....... $6,000,000
(2) Not a 200 or 400 percent adjustment.................... 15,000,000
------------
Total.................................................. 21,000,000
(ii) None of the adjustments are excluded under paragraph (d)
(Amounts excluded from net section 482 adjustments) in determining
the twenty million dollar or 20% of gross receipts test under
section 6662(h). The net section 482 adjustment (21 million dollars)
is greater than twenty million dollars and thus constitutes a gross
valuation misstatement. Accordingly, the total adjustment is subject
to the net adjustment penalty equal to 40 percent of the
underpayment of tax attributable to the 21 million dollar gross
valuation misstatement. The six million dollar adjustment will not
be separately included for purposes of any additional penalty under
section 6662.
(g) Effective date. This section is effective February 9, 1996.
However, taxpayers may elect to apply this section to all open taxable
years beginning after December 31, 1993.
Sec. 1.6662-6T [Removed]
Par. 5. Section 1.6662-6T is removed.
Par. 6a. In Sec. 1.6664-0, the introductory text is amended by
removing the reference ``1.6664-4'' and adding ``1.6664-4T'' in its
place.
Par. 6b. Section 1.6664-4T is revised to read as follows:
Sec. 1.6664-4T Reasonable cause and good faith exception to section
6662 penalties.
(a) through (e) [Reserved].
(f) Transactions between persons described in section 482 and net
section 482 transfer price adjustments. For purposes of applying the
reasonable cause and good faith exception of section 6664(c) to net
section 482 adjustments, the rules of Sec. 1.6662-6(d) apply. A
taxpayer that does not satisfy the rules of Sec. 1.6662-6(d) for a net
section 482 adjustment cannot satisfy the reasonable cause and good
faith exception under section 6664(c). The rules of this section apply
to underpayments subject to the transactional penalty in Sec. 1.6662-
6(b). If the standards of the net section 482 penalty exclusion
provisions under Sec. 1.6662-6(d) are met with respect to such
underpayments, then the taxpayer will be considered to have acted with
reasonable cause and good faith for purposes of this section.
PART 602--OMB CONTROL NUMBERS UNDER THE PAPERWORK REDUCTION ACT
Par. 7. The authority citation for part 602 continues to read as
follows:
Authority: 26 U.S.C. 7805.
Par. 8. In Sec. 602.101, paragraph (c) is amended by removing the
entry for Sec. 1.6662-6T from the table and adding an entry in
numerical order to the table to read ``1.6662-6....1545-1426''.
Margaret Milner Richardson,
Commissioner of Internal Revenue.
Approved: January 19, 1996.
Leslie Samuels,
Assistant Secretary of the Treasury.
[FR Doc. 96-2171 Filed 2-8-96; 8:45 am]
BILLING CODE 4830-01-U
Complete official Federal Register PDF
FR Doc. 96-2084 Airworthiness Standards; Powerplant Rules Based on European Joint Aviation Requirements
[Federal Register Volume 61, Number 28 (Friday, February 9, 1996)]
[Rules and Regulations]
[Pages 5130-5138]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-2084]
[[Page 5129]]
_______________________________________________________________________
Part III
Department of Transportation
_______________________________________________________________________
Federal Aviation Administration
_______________________________________________________________________
14 CFR Part 23, et al.
Airworthiness Standards; Final Rules
Federal Register / Vol. 61, No. 28 / Friday, February 9, 1996 / Rules
and Regulations
[[Page 5130]]
DEPARTMENT OF TRANSPORTATION
Federal Aviation Administration
14 CFR Part 23
[Docket No. 27804; Amendment No. 23-51]
RIN 2120-AE60
Airworthiness Standards; Powerplant Rules Based on European Joint
Aviation Requirements
AGENCY: Federal Aviation Administration, DOT.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: This final rule amends the powerplant airworthiness standards
for normal, utility, acrobatic, and commuter category airplanes. This
amendment completes a portion of the Federal Aviation Administration
(FAA) and the European Joint Aviation Authorities (JAA) effort to
harmonize the Federal Aviation Regulations and the Joint Aviation
Requirements (JAR) for airplanes certificated in these categories. This
amendment will provide nearly uniform powerplant airworthiness
standards for airplanes certificated in the United States under 14 CFR
part 23 and in the JAA countries under Joint Aviation Requirements 23,
simplifying international airworthiness approval.
EFFECTIVE DATE: March 11, 1996.
FOR FURTHER INFORMATION CONTACT:
Norman Vetter, ACE-111, Small Airplane Directorate, Aircraft
Certification Service, Federal Aviation Administration, 601 East 12th
Street, Kansas City, Missouri 64106; telephone (816) 426-5688.
SUPPLEMENTARY INFORMATION:
Background
This amendment is based on Notice of Proposed Rulemaking (NPRM) No.
94-19 (59 FR 33822). All comments received in response to Notice 94-19
have been considered in adopting this amendment.
This amendment completes part of an effort to harmonize the
requirements of part 23 and JAR 23. The revisions to part 23 in this
amendment pertain to powerplants. Three other final rules are being
issued in this Federal Register that pertain to airworthiness standards
for systems and equipment flight, and airframe. These related
rulemakings are also part of the harmonization effort. Interested
persons should review all four final rules to ensure that all revisions
to part 23 are recognized.
The harmonization effort was initiated at a meeting in June 1990 of
the JAA Council (consisting of JAA members from European countries) and
the FAA, during which the FAA Administrator committed the FAA to
support the harmonization of the U.S. regulations with the JAR that
were being developed. In response to the commitment, the FAA Small
Airplane Directorate established an FAA Harmonization Task Force to
work with the JAR 23 Study Group to harmonize part 23 with the proposed
JAR 23. The General Aviation Manufacturers Association (GAMA) also
established a JAR 23 and part 23 committee to provide technical
assistance.
The FAA, JAA, GAMA, and the Association Europeene des Constructeurs
de Material Aerospatial (AECMA), an organization of European airframe
manufacturers, met on several occasions in a continuing harmonization
effort.
Near the end of the effort to harmonize the normal, utility, and
acrobatic category airplane airworthiness standards, the JAA requested
and received recommendations from its member countries on proposed
airworthiness standards for commuter category airplanes. Subsequent JAA
and FAA meetings on this issue resulted in proposals that were
reflected in Notice 94-19 to revise portions of the part 23 commuter
category airworthiness standards. Accordingly, this final rule adopts
the powerplant airworthiness standards for all part 23 airplanes.
In January 1991, the FAA established the Aviation Rulemaking
Advisory Committee (ARAC) (56 FR 2190, January 22, 1991). At an FAA/JAA
Harmonization Conference in Canada in June 1992, the FAA announced that
it would consolidate the harmonization effort within the ARAC
structure. The FAA assigned to ARAC the rulemakings related to JAR and
part 23 harmonization, which ARAC assigned to the JAR 23/FAR 23
Harmonization Working Group. The proposals for powerplant airworthiness
standards contained in Notice No. 94-19 were a result of both the
working group's efforts and the efforts at harmonization that occurred
before the formation of the working group.
The JAA submitted comments to the FAA on January 20, 1994, in
response to the four draft proposals for harmonization of the part 23
airworthiness standards. The JAA submitted comments again during the
comment period of the NPRM. At the April 26, 1995, ARAC JAR/FAR 23
Harmonization Working Group meeting, the JAA noted that many of the
comments in the January 20 letter had been satisfied or were no longer
relevant. The few remaining items concern issues that are considered
beyond the scope of this rulemaking, and, therefore, will be dealt with
at future FAA/JAA Harmonization meetings.
Discussion of Comments
General
Interested persons were invited to participate in the development
of these final rules by submitting written data, views, or arguments to
the regulatory docket on or before October 28, 1994. Four commenters
responded to Notice 94-19. Two commenters (Transport Canada and the Air
Line Pilots Association) expressed overall support for the proposed
changes. The JAA stated its overall support while commenting on
specific proposed changes. The fourth commenter (Beechcraft) commented
on several specific sections. The specific comments of JAA and
Beechcraft are discussed in detail in this document and include an FAA
response and a description of any changes to the final rule language.
Other minor technical and editorial changes have been made to the
proposed rules based on relevant comments received, consultation with
the ARAC, and further review by the FAA.
Discussion of Amendments
Section 23.777 Cockpit Controls
The FAA proposed to revise Sec. 23.777(c)(2) so that for single-
engine airplanes designed for a single cockpit occupant, the powerplant
controls would be located in the same position as they are for
airplanes with tandem seats.
No comments were received on the proposal, and it is adopted as
proposed.
Section 23.779 Motion and Effect of Cockpit Controls
The FAA proposed to revise Sec. 23.779(b)(1) by adding a new item,
``fuel,'' to the ``motion and effect'' table to require that any fuel
shutoff control other than mixture must move forward to open.
No comments were received on the proposal, and it is adopted as
proposed.
Section 23.901 Installation
The FAA proposed to revise Sec. 23.901(d)(1), which concerns
turbine engine installation and vibration characteristics that do not
exceed those established during the type certification of the engine.
The FAA proposed to add the word ``carcass'' before vibration in this
paragraph in order to restrict analyses to those vibrations that are
caused by external excitation to the
[[Page 5131]]
main engine frame or ``carcass.'' While the word ``carcass'' has not
traditionally been used in this context in the United States, it is
used in Europe and was proposed in the interest of harmonization.
The FAA proposed to revise Sec. 23.901(d)(2) by deleting the last
sentence, which reads: ``The engine must accelerate and decelerate
safely following stabilized operations under these rain conditions.''
This requirement is already provided for in the first sentence of
paragraph (d)(2), which states that the turbine engine must be
constructed and arranged to provide ``continued safe operation.''
The FAA proposed to revise paragraph (e) of this section by adding
the word ``powerplant'' in front of ``installation'' to make clear that
it pertains to all powerplant installations. The FAA proposed to revise
paragraph (e)(1) by adding the word ``installation'' in front of
``instruction'' to make clear which instructions are applicable.
The FAA proposed that new paragraph (e)(1)(i) contain the
requirement for an engine type certificate currently set forth in
paragraph (e)(1). The FAA proposed that paragraph (e)(1)(ii) continue
the current requirement for a propeller type certificate, and to allow
an equivalency finding for certain propellers not type certificated in
the United States. This revision was proposed to be consistent with the
proposed revisions to Sec. 23.905, Propellers.
No comments were received on the proposals. However, as discussed
below, the FAA has determined that the proposed amendment to
Sec. 23.905(a) concerning propellers should be withdrawn. Consequently,
proposed revisions to Sec. 23.901(e) are no longer appropriate and are
being withdrawn.
The proposal is adopted with the above change.
Section 23.903 Engines
The FAA proposed to revise Sec. 23.903 (c) and (g) by adding the
headings ``Engine isolation'' and ``Restart capability,'' respectively,
in order to identify the subjects of these paragraphs as is done for
the other paragraphs in this section. The FAA also proposed to change
the heading of paragraph (f) from ``Restart capability'' to ``Restart
envelope'' since the paragraph addresses the altitude and airspeed
envelope for restarting the engines in flight.
No comments were received on the proposals, and they are adopted as
proposed.
Section 23.905 Propellers
The FAA proposed to revise Sec. 23.905(a) to permit approval, on
part 23 airplanes, of propellers by a means other than the currently
required type certificate.
Comment: Beechcraft objects to what it characterizes as ``an
unknown method of compliance.'' Beechcraft states that it appears that
the economic burden of certification would be placed on the end user of
the propeller without any guidance as to the means of compliance.
Beechcraft asserts that experience indicates that equivalent level of
safety findings are very subjective, that propellers would be
certificated to various standards, and that this creates a liability
for the aircraft manufacturer. Beechcraft believes that uniform
airworthiness standards should be maintained and that ``an aircraft
manufacturer could not, for economic and liability reasons, afford to
purchase a propeller without a type certificate, U.S. or foreign.''
FAA Response: The FAA re-evaluated the proposal and determined that
public interest would be best served if the proposal were withdrawn.
Therefore, the FAA is withdrawing the proposal and will consider it for
future rulemaking action.
Section 23.907 Propeller Vibration
The FAA proposed to revise Sec. 23.907(a) to require that
propellers ``other than a conventional fixed-pitch wooden propeller''
be evaluated for vibration. Fixed-pitch wooden propellers are not
highly stressed, as are all metal and most composite propeller blades.
No comments were received on this proposal and it is adopted as
proposed.
Section 23.925 Propeller Clearance
The FAA proposed to revise Sec. 23.925 to require that propeller
clearance must be evaluated with the airplane at the most adverse
combination of weight and center of gravity, and with the propeller in
the most adverse pitch position. This revision would make the
requirement consistent with current certification practice.
Comment: The JAA pointed out that, under the JAR, the clearances
provided in this section are intended to represent minimum values and
that it had previously rejected the introductory text language that
states ``Unless smaller clearances are substantiated * * *.''
FAA Response: The language quoted by the JAA is in present
Sec. 23.925 and would not be affected by the proposed change. The FAA
acknowledges that the introductory language cited by the JAA has been
previously identified as an area of known disharmony between the two
sets of regulations that would not be affected by the proposed
revisions.
No comments other than the JAA acknowledgment of disharmony were
received on the changes proposed for this section in Notice 94-19, and
the proposal is adopted as proposed.
Section 23.929 Engine Installation Ice Protection
The FAA proposed to replace the word ``power'' in Sec. 23.929 in
the phrase ``without appreciable loss of power'' with the word
``thrust'' because ``thrust'' is more descriptive of the loss
experienced when ice forms on a propeller.
No comments were received on the proposal, and it is adopted as
proposed.
Section 23.933 Reversing Systems
The FAA proposed to revise Sec. 23.933(a)(1) so that these
provisions correspond to the turbojet and turbofan reversing system
airworthiness standards of part 25.
The FAA also proposed to delete as unnecessary the word ``forward''
from paragraph (a)(3).
No comments were received on the proposals, and they are adopted as
proposed.
Section 23.955 Fuel Flow
The FAA proposed to revise Sec. 23.955(a) by deleting the word
``and'' where it occurs between the subparagraphs. Each of the four
paragraphs is independent and all of them apply under paragraph (a).
The FAA also proposed to revise Sec. 23.955(a)(3) by adding the
word ``probable'' so that the requirement would read as follows: ``If
there is a flow meter without a bypass, it must not have any probable
failure mode * * *.'' The addition of the word ``probable'' would
clarify the intent of the requirement that only probable failures need
be analyzed.
No comments were received on the proposals, and they are adopted as
proposed.
Section 23.959 Unusable Fuel Supply
The FAA proposed that the text of Sec. 23.959 be redesignated as
paragraph (a), and proposed the addition of a new paragraph (b) to
require that the effect of any fuel pump failure on the unusable fuel
supply be established. This change would not require any change in the
fuel quantity indicator marking required by Sec. 23.1553.
No comments were received on the proposals, and they are adopted as
proposed.
[[Page 5132]]
Section 23.963 Fuel Tanks: General
The FAA proposed to clarify Sec. 23.963(b), which concerns fuel
tank liners, by replacing the phrase ``must be of an acceptable kind''
with the phrase ``must be shown to be suitable for the particular
application.'' Also, the FAA proposed to revise the cross reference in
this section to coincide with the proposed revision of Sec. 23.959
discussed above.
No comments were received on the proposals, and they are adopted as
proposed.
Section 23.965 Fuel Tank Tests
The FAA proposed to revise Sec. 23.965(b)(3)(i) by changing the
phrase ``the test frequency of vibration cycles per minute is obtained
by * * *'' to ``the test frequency of vibration is the number of cycles
per minute obtained by * * *'' to clarify that it is the number of
cycles per minute that is to be used during testing of a fuel tank.
No comments were received on the proposal. After further review of
the proposal, however, the FAA determined that the second portion of
paragraph (b)(3)(i), which includes the test frequency vibration
cycles, should be redesignated as paragraphs (b)(3)(i) (A) and (B), and
that the phrase ``except that'' should be removed and the word ``and''
added in its place. This would not be a substantive revision.
The proposal is adopted with the above change.
Section 23.973 Fuel Tank Filler Connection
The FAA proposed to revise Sec. 23.973(f) by removing the language
that limits its applicability so that the regulation would apply to all
airplanes with turbine engines, including turbine engines that are
equipped with pressure fueling systems.
No comments were received on the proposal, and it is adopted as
proposed.
Section 23.975 Fuel Tank Vents and Carburetor Vents
The FAA proposed to revise the first sentence of Sec. 23.975(a)(5)
to clarify that there may be no point in any vent line where moisture
can accumulate unless drainage is provided. The FAA explained that the
intent of this requirement is to allow low spots in the fuel tank vent
system if a drain is provided for each low spot.
Comment: No comments were received concerning the proposed revision
of the first sentence of Sec. 23.975(a)(5). However, the JAA submitted
a comment on the second sentence, for which no change was proposed.
That sentence currently reads, ``Any drain valve installed in the vent
lines must discharge clear of the airplane and be accessible for
drainage.'' The JAA's comment is threefold. First, JAA states that, in
smaller, less complex part 23 airplanes, whether a vent will remain
clear in all phases of operation cannot be guaranteed. Second, JAA
states that, on more complex part 23 airplanes, ``considerations of
inaccessibility during operation of an aircraft when the need for a
drain valve has been considered essential, has very often resulted in
the acceptance of automatic valves that drain back into the fuel
tank.'' Finally, JAA states that drainage/discharge clear of the
airplane is not in accord with environmental concerns.
FAA Response: The FAA has concluded after reviewing the JAA comment
and after discussions within the ARAC working group that further
clarification of this drainage requirement is appropriate, since the
rule language was never intended to limit discharge to an external
drain valve. Therefore, the last sentence of Sec. 23.975(a)(5), as
adopted, reads ``Any drain valve installed must be accessible for
drainage.''
Section 23.979 Pressure Fueling Systems
The FAA proposed to revise Sec. 23.979(b) to require, for commuter
category airplanes, an indication at each fueling station of failure of
the automatic shutoff means. This revision would make the commuter
category automatic shutoff means requirements similar to the
requirements for transport category airplanes in Sec. 25.979.
No comments were received on the proposal, and it is adopted as
proposed.
Section 23.1001 Fuel Jettisoning System
The FAA proposed to revise Sec. 23.1001(b)(2) to redefine the speed
at which the fuel jettisoning system tests should be conducted by
referencing Sec. 23.69(b). The JAA states that a comparable change will
be made to JAR 23.
No other comments were received, and this proposal is adopted as
proposed.
Section 23.1013 Oil Tanks
The FAA proposed to delete the word ``crankcase'' in
Sec. 23.1013(d)(1) to make this paragraph applicable to all engine
installations.
No comments were received on the proposal, and it is adopted as
proposed.
Section 23.1041 General
The FAA proposed to revise Sec. 23.1041, under the ``Cooling''
heading, to require, for all airplanes regardless of engine type, a
demonstration of adequate cooling at one maximum ambient atmosphere
temperature for which approval is requested.
No comments were received on the proposal, and it is adopted as
proposed.
Section 23.1043 Cooling Tests
The FAA stated in the preamble to Notice 94-19 that it proposed to
revise Sec. 23.1043(a)(3) to show that the minimum grade fuel
requirement applies to both turbine and reciprocating engines and that
the lean mixture requirement applies to reciprocating engines only.
The FAA proposed to simplify the introductory text of paragraph (a)
by deleting the requirement that compliance must be shown ``under
critical ground, water, and flight operating conditions to the maximum
altitude for which approval is requested'' since this requirement is
already contained in Sec. 23.1041.
The FAA proposed to improve the organization of the section by
moving to paragraph (a)(4) the requirement in the introductory text of
paragraph (a) that for turbocharged engines, each turbocharger must be
operated through the part of the climb profile for which turbocharger
operation is requested.
The FAA proposed a non-substantive change to paragraph (a)(1) to
make it consistent with proposed changes to Sec. 23.1041.
The FAA proposed to reword paragraph (a)(2) without substantive
change to make this language identical to the JAR.
The FAA proposed to revise paragraph (a)(3) to clarify that the
requirement for mixture settings applies to reciprocating engines and
that the mixture settings must be the leanest recommended for the
climb. The FAA pointed out that the ``leanest recommended for climb''
mixture setting is considered a normal operating condition.
The FAA proposed to remove paragraph (a)(5) because water taxi
tests are already required by Sec. 23.1041 as amended by Amendment 23-
43 (58 FR 18958, April 9, 1993).
The FAA proposed to revise paragraphs (c) and (d) by adding the
requirement that cooling correction factors be determined for the
appropriate altitude. This proposed change was intended to codify
current certification practice and increase safety by ensuring that the
proper correction factor is determined.
[[Page 5133]]
Comment: Beechcraft comments that the minimum fuel requirement of
present paragraph (a)(3) should be deleted for turbine engines since
there are not real measurable differences for turbine engine fuel as
there are for reciprocating engine fuel.
FAA Response: The proposed rule did not contain any change to the
minimum fuel grade requirements and the preamble statement may be
unclear. The FAA agrees with the Beechcraft statement that today,
turbine engine fuels are not graded. Since no change was proposed in
this wording in the NPRM and since the present wording has not effect
on the use of turbine engine fuels, no change is made for this final
rule. However, after discussion within the ARAC Working Group, the FAA
has determined that paragraph (a)(3) can be clarified by moving the
second part of the sentence concerning mixture settings for
reciprocating engines to a new paragraph (a)(5). This is not considered
a substantive change to the proposed language, but a clarification of a
current requirement.
The only comment received on the changes proposed for Sec. 23.1043
concerned paragraph (a)(3), and that paragraph is adopted as explained
above. The remaining changes are adopted as proposed.
Section 23.1045 Cooling Test Procedures for Turbine Engine Powered
Airplanes
The FAA proposed to clarify Sec. 23.1045(a) by stating more
generally that (1) compliance with Sec. 23.1041 must be shown for all
phases of operations, not only the four listed phases: takeoff, climb,
enroute, and landing; and that (2) the airplane must be flown in the
configuration, at the speeds, and following the procedures recommended
in the Airplane Flight Manual for the relative stage of flight that
corresponds to the applicable performance requirements critical to
cooling.
No comments were received on the proposals, and they are adopted as
proposed.
Section 23.1047 Cooling Test Procedures for Reciprocating Engine
Powered Airplanes
The FAA proposed to revise the cooling test procedures in
Sec. 23.1047 for reciprocating engine powered airplanes by deleting the
specific procedures because experience has shown that some of the
listed detailed procedures are not directly applicable to certain
engine configurations and certain operating conditions.
No comments were received on the proposal, and it is adopted as
proposed.
Section 23.1091 Air Induction System
The FAA proposed to revise Sec. 23.1091(c)(2) to require that air
induction system design protect against foreign matter, from whatever
source, ``during takeoff, landing, and taxiing'' rather than be
limited, as is the present rule, to foreign material located on the
runway, taxiway, or other airport operating surfaces.
Comment: Beechcraft comments that increasing the scope of the
foreign material environment poses very difficult technical questions
and potentially costly solutions. Beechcraft states that it is
extremely difficult to compensate for and protect against airborne
debris and also states its concern that the proposed rule language
gives no guidance as to the levels of protection that are necessary.
FAA Response: As stated in the NPRM preamble, the proposed language
is consistent with current certification practice and, therefore, would
not be a significant new burden on aircraft manufacturers. However, it
was not the FAA's intent to create an opportunity for an extreme
interpretation of this rule, as suggested by Beechcraft. To clarify the
intent, and after discussion within the ARAC Working Group, the FAA has
added the words ``hazard of'' to the second sentence of
Sec. 23.1091(c)(2) to make it clear that the intent of the rule is to
minimize the hazard of ingestion of foreign matter rather than to
require zero ingestion.
This proposal is adopted with the change explained above.
Section 23.1093 Induction System Icing Protection
The FAA proposed to revise Sec. 23.1093(c) by adding the heading
``Reciprocating engines with superchargers'' so that this paragraph
would be consistent with paragraphs (a) and (b) of this section, which
have headings.
No comments were received on the proposal, and it is adopted as
proposed.
Section 23.1105 Induction System Screens
The FAA proposed to revise Sec. 23.1105 to include fuel injection
systems, since some reciprocating engines incorporate a fuel injection
system and the same provisions required for a carburetor are necessary
for a fuel injection system.
No comments were received on the proposal, and it is adopted as
proposed.
Section 23.1107 Induction System Filters
The FAA proposed to revise the introductory text of Sec. 23.1107 by
deleting the reference to reciprocating engine installations to make
the section applicable to airplanes with either reciprocating or
turbine engines.
No comments were received on the proposal, and it is adopted as
proposed.
Section 23.1121 General
The FAA proposed to revise Sec. 23.1121(g) by adding standards for
APU exhaust systems because these standards were overlooked when APU
standards were introduced into part 23 by Amendment 23-43 (58 FR 18958,
April 9, 1993).
No comments were received on the proposal, and it is adopted as
proposed.
Section 23.1141 Powerplant Controls: General
The FAA proposed to clarify Sec. 23.1141(b), which concerns
flexible controls, by replacing the phrase ``must be of an acceptable
kind'' with the phrase ``must be shown to be suitable for the
particular application.''
No comments were received on the proposal, and it is adopted as
proposed.
Section 23.1143 Engine Controls
The FAA proposed to revise Sec. 23.1143(f) to add a requirement
that a fuel control (other than a mixture control) must have a means to
prevent the inadvertent movement of the control into the shutoff
position.
No comments were received on the proposal, and it is adopted as
proposed.
Section 23.1153 Propeller Feathering Controls
The FAA proposed to revise Sec. 23.1153 to require that it be
possible to feather each propeller separately, in order to prevent
inadvertent operation.
After further review of the proposal, the FAA decided to remove the
phrase ``whether or not they are separate from the propeller speed and
pitch controls'' and add the word ``installed'' in its place. The
meaning is maintained without the deleted phrase, which would be
redundant.
No comments were received on the proposal, and it is adopted as
proposed.
Section 23.1181 Designated Fire Zones; Regions Included
The FAA proposed new Sec. 23.1181(b)(3) to add as a designated fire
zone for turbine engines ``any complete powerplant compartment in which
there is no isolation between compressor, accessory, combustor, turbine
and tailpipe sections.''
No comments were received on the proposal, and it is adopted as
proposed.
[[Page 5134]]
Section 23.1183 Lines, Fittings, and Components
The FAA proposed to clarify the intent of Sec. 23.1183(a), which
concerns the approval of flexible hose assemblies, by replacing the
word ``approved'' with the words ``shown to be suitable for the
particular application.''
No comments were received on the proposal, and it is adopted as
proposed.
Section 23.1191 Firewalls
The FAA proposed to amend Sec. 23.1191(b) to require that each
``firewall or shroud must be constructed so that no hazardous quantity
of liquid, gas, or flame can pass from the compartment created by the
firewall or shroud to other parts of the airplane.'' The intent of the
proposed change was to clarify that the requirement applies to any
compartment created by a firewall or shroud.
Comment: The JAA states that the additional wording proposed to be
added to paragraph (b) is superfluous and will not be proposed for JAR
23.
FAA Response: The FAA has determined that the proposed change to
Sec. 23.1191(b) is needed to retain the intent of the rule and that it
will not create a technical disharmony between the two bodies of
regulation.
This proposal is adopted as proposed.
Section 23.1203 Fire Detector System
The FAA proposed to revise Sec. 23.1203(e), which concerns the
wiring and other components of each fire detector system in an engine
compartment, by replacing the words ``fire zone'' with ``designated
fire zone'' to make the wording consistent with Sec. 23.1181.
No comments were received on the proposal, and it is adopted as
proposed.
Section 23.1305 Powerplant Instruments
The FAA proposed to revise Sec. 23.1305(b)(3), concerning cylinder
head temperature indicators, by deleting paragraph (b)(3)(ii), which
refers to compliance with Sec. 23.1041 at a speed higher than VY,
to be consistent with a general deletion of the requirements for a
determination of the VY speed.
No comments were received on the proposal. However, after further
review, the FAA has determined that it would be simpler to remove the
text of paragraph (b)(3)(ii) and to reserve paragraph (b)(3)(ii) for
future use in order to avoid confusion that could come from
redesignation of paragraph (b)(3)(iii).
The proposal is adopted as explained above.
Section 23.1337 Powerplant Instruments
The FAA proposed to change the reference in Sec. 23.1337(b) to
``Sec. 23.959'' to ``Sec. 23.959(a)'' to conform the reference to a
revision of Sec. 23.959 made elsewhere in this document.
No comments were received on the proposal, and it is adopted as
proposed.
Regulatory Evaluation, Regulatory Flexibility Determination, and Trade
Impact Assessment
Changes to federal regulations must undergo several economic
analyses. First, Executive Order 12866 directs Federal agencies to
promulgate new regulations or modify existing regulations only if the
potential benefits to society justify its costs. Second, the Regulatory
Flexibility Act of 1980 requires agencies to analyze the economic
impact of regulatory changes on small entities. Finally, the Office of
Management and Budget directs agencies to assess the effects of
regulatory changes on international trade. In conducting these
assessments, the FAA has determined that this rule: (1) Will generate
benefits exceeding its costs and is ``significant'' as defined in
Executive Order 12866; (2) is ``significant'' as defined in DOT's
Policies and Procedures; (3) will not have a significant impact on a
substantial number of small entities; and (4) will not constitute a
barrier to international trade. These analyses, available in the
docket, are summarized below.
Comments Related to the Economics of the Proposed Rule
Two comments were received regarding the economic impact of the
proposals; one concerning an existing regulation (Sec. 23.1043 Cooling
tests) and one concerning a new proposal (Sec. 23.1091 Air induction
systems). Both of these comments, as well as the FAA's responses, are
included above in the section ``Discussion of Amendments.''
Regulatory Evaluation Summary
The FAA has determined that the benefits of the final rule, though
not directly quantifiable, will exceed the expected costs. Minor costs,
ranging from $240 to $6,000 per certification, are projected for four
of the provisions. No costs are attributed to the other provisions. The
benefits of the final rule are considered below in four categories: (1)
Harmonization, (2) safety, (3) reduced need for special conditions, and
(4) clarification.
Harmonization
These changes, in concert with other rulemaking and policy actions,
will provide nearly uniform powerplant airworthiness standards for
airplanes certificated in the United States and the JAA member
countries. The resulting greater uniformity of standards simplifies
airworthiness approval for import and export purposes.
Safety
In addition to the harmonization benefits, five provisions of the
rule provide additional safety benefits. First, the final rule revises
Sec. 23.933(a)(1) to more closely agree with the corresponding turbojet
and turbofan reversing system airworthiness standards of part 25. The
FAA estimates that this provision will necessitate an additional 100
hours of failure mode and effects analysis at an assumed cost rate of
$60 per hour, including labor and overhead. The estimated $6,000 cost
applies to each certification. The FAA projects that no additional
production or operating costs will result from this provision.
The primary potential benefit of the provision is the additional
safety that could result from analyzing the feasible range of reverser
system failures, the effects of those failures, and the corresponding
capabilities necessary to correct the failure or circumvent its
effects. Such an analysis could reduce the possibility that an
unanticipated condition with catastrophic potential would remain in the
system. In addition to the safety benefit, it is expected that
operating benefits and manufacturing economies will result from the
uniformity of standards between parts 23 and 25. The FAA is not able to
quantify the potential benefits of this provision but has determined
that the benefits will exceed the expected minor costs.
Second, the final rule adds a new paragraph (b) to Sec. 23.959
requiring that the effect of any fuel pump failure on the unusable fuel
supply be determined. Though not previously required, it has been
industry practice to include this information in the Airplane Flight
Manual. The FAA estimates that the nominal cost of making this
determination will be $240 per certification (4 hours at $60 per hour).
In addition, an insignificant cost ($1) will be incurred in adding a
table entry to the manual for each airplane that is produced. The fact
that this requirement is already standard practice supports the FAA's
position that the potential benefit of the provision exceed the minor
costs. The safety benefits of this provision
[[Page 5135]]
derive from the assurance that this vital information will continue to
be provided for future airplane models.
Third, under Sec. 23.979, the final rule adds the requirement for
commuter category airplanes that an indication be provided at each
fueling station in the event of a failure of the shutoff means to stop
fuel flow at the maximum level. The FAA estimates that the required
device will necessitate an incremental design and development cost of
$3,000 per certification (50 hours at $60 per hour) and an additional
nominal manufacturing cost of $10 per airplane. The benefit of the
provision is the avoidance of a potentially catastrophic condition
whereby excess fuel could unknowingly be forced out of the contained
fuel system by the pressure fueling system. The FAA has determined that
these potential benefits will exceed the minor associated costs.
Fourth, Sec. 23.1041 establishes the requirement that the
powerplant cooling system must be able to maintain the temperature of
the powerplant components and fluids. The ambient temperature for
testing reciprocating engine airplanes is currently required to be
corrected to show the capacity of the cooling system at 100 deg.F.
Under the amendment, this temperature standard is revised to the
``maximum ambient temperature conditions for which approval is
requested.''
No costs are attributed to this provision. Reciprocating engine
airplane manufacturers will continue to have the option to request
approval for operations at the existing 100 deg.F temperature. A
decision to request approval for a higher temperature would necessitate
demonstration of the capability of the cooling system at that
temperature. That choice, however, will be made at the manufacturer's
discretion and will be based on its decision that any associated
incremental cooling system costs would be recovered in the marketplace
or offset by other considerations. The potential benefit of this
provision is the reduced likelihood that an inadequate cooling system
would be relied on during high temperature operations.
Finally, paragraph (a) of Sec. 23.1045 is revised to state more
generally that compliance with the cooling margin requirements of
Sec. 23.1041 must be shown for all phases of operation, as compared to
the four phases of flight currently listed. In effect, the amendment
adds the taxi phase.
The FAA estimates that the specific addition of the taxi phase will
necessitate an incremental 5 hours of engineering analysis valued at
$60 per hour, for a total of $300 per certification. The potential
benefit of this provision is the enhanced safety that could result from
evaluating the efficacy of the cooling system during the taxi phase of
operation. In the taxi phase of operation, engine power settings and
heat production may be generally lower than that experienced during
flight, but available air circulation might also be lower. The heat
mechanics of the two conditions are distinct and warrant separate
evaluation. The FAA has determined that the potential benefits of this
provision will exceed the nominal associated costs.
Reduced Need for Special Conditions
The final rule includes five provisions that will replace the need
for ``special conditions'' processing of certain parts or materials
that were previously considered as novel or unusual design features.
The subjects of these provisions include composite propellers, fuel
injection systems for reciprocating engines, induction filters on
turbine engines, fuel shutoff controls other than mixture controls, and
auxiliary power units. No additional costs are attributed to these
provisions. Formalization of the equivalent safety standards and
requirements for these subjects obviates the need for special
conditions actions and simplifies the certification process for
manufacturers.
Clarification
Several unclear provisions of part 23 were revealed during the
harmonization review. In response to this finding, the final rule
includes a number of no-cost, editorial revisions that clarify the
existing requirements. These changes benefit manufacturers by removing
potential confusion about the specific standards and requirements
necessary for certification.
In summary, the FAA has determined that each of the amendments, as
well as the final rule as a whole, will be cost beneficial.
Regulatory Flexibility Determination
The Regulatory Flexibility Act of 1980 (RFA) was enacted by
Congress to ensure that small entities are not unnecessarily or
disproportionately burdened by Government regulations. The RFA requires
a Regulatory Flexibility Analysis if a rule would have a significant
economic impact, either detrimental or beneficial, on a substantial
number of small entities. Based on implementing FAA Order 2100.14A,
Regulatory Flexibility Criteria and Guidance, the FAA has determined
that this rule will not have a significant economic impact on a
substantial number of small entities.
Trade Impact Assessment
The final rule will not constitute a barrier to international
trade, including the export of American airplanes to foreign countries
and the import of foreign airplanes into the United States. Instead,
the amended powerplant airworthiness standards have been harmonized
with foreign aviation authorities and will reduce restraints on trade.
Federalism Implications
The regulations herein will not have substantial direct effects on
the States, on the relationship between the national government and the
States, or on the distribution of power and responsibilities among the
various levels of government. Therefore, in accordance with Executive
Order 12612, it is determined that this rule does not have sufficient
federalism implications to warrant the preparation of a Federalism
Assessment.
Conclusion
The FAA is revising the airworthiness standards to provide
propulsion standards for normal, utility, acrobatic, and commuter
category airplanes to harmonize them with the standards that have been
adopted for the same category airplanes by the Joint Aviation
Authorities in Europe. The revisions will reduce the regulatory burden
on the United States and European airplane manufacturers by relieving
them of the need to show compliance with different standards each time
they seek certification approval of an airplane in the United States or
in a country that is a member of the JAA.
For the reasons discussed in the preamble, and based on the
findings in the Regulatory Evaluation, the FAA has determined that this
rule is significant under Executive Order 12866. In addition, the FAA
certifies that this rule will not have a significant economic impact,
positive or negative, on a substantial number of small entities under
the criteria of the Regulatory Flexibility Act. This rule is considered
significant under DOT Regulatory Policies and Procedures (44 FR 11034,
February 26, 1979). A regulatory evaluation of the rule has been placed
in the docket. A copy may be obtained by contacting the person
identified under FOR FURTHER INFORMATION CONTACT.
List of Subjects in 14 CFR Part 23
Aircraft, Aviation safety, Signs and symbols.
[[Page 5136]]
The Amendments
In consideration of the foregoing, the Federal Aviation
Administration amends 14 CFR part 23 as follows:
PART 23--AIRWORTHINESS STANDARDS: NORMAL, UTILITY, ACROBATIC, AND
COMMUTER CATEGORY AIRPLANES
1. The authority citation for part 23 continues to read as follows:
Authority: 49 U.S.C. 106(g), 40113, 44701, 44702, 44704.
Sec. 23.777 [Amended]
2. Section 23.777(c)(2) is amended by adding the words ``single
and'' between the words ``for'' and ``tandem''.
3. The table in Sec. 23.779(b)(1) is amended by adding a new item
between the items ``mixture'' and ``carburetor air heat or alternate
air'' to read as follows:
Sec. 23.779 Motion and effect of cockpit controls.
* * * * *
(b) * * *
Motion and effect
(1) Powerplant controls:
* * * * *
Fuel.............................. Forward for open.
* * * * *
4. Section 23.901 is amended by revising paragraphs (d)(1) and
(d)(2) to read as follows:
Sec. 23.901 Installation.
* * * * *
(d) * * *
(1) Result in carcass vibration characteristics that do not exceed
those established during the type certification of the engine.
(2) Provide continued safe operation without a hazardous loss of
power or thrust while being operated in rain for at least three minutes
with the rate of water ingestion being not less than four percent, by
weight, of the engine induction airflow rate at the maximum installed
power or thrust approved for takeoff and at flight idle.
* * * * *
5. Section 23.903 is amended by adding headings to paragraphs (c)
and (g), and by revising the heading of paragraph (f) to read as
follows:
Sec. 23.903 Engines.
* * * * *
(c) Engine isolation. * * *
* * * * *
(f) Restart envelope. * * *
(g) Restart capability. * * *
Sec. 23.907 [Amended]
6. Section 23.907(a) introductory text is amended by removing the
phrase ``with metal blades or highly stressed metal components'' and
adding the phrase ``other than a conventional fixed-pitch wooden
propeller'' in its place.
7. Section 23.925 introductory text is revised to read as follows:
Sec. 23.925 Propeller clearance.
Unless smaller clearances are substantiated, propeller clearances,
with the airplane at the most adverse combination of weight and center
of gravity, and with the propeller in the most adverse pitch position,
may not be less than the following:
* * * * *
Sec. 23.929 [Amended]
8. Section 23.929 is amended by removing the word ``power'' and
adding, in its place, the word ``thrust''.
9. Section 23.933 is amended by removing the word ``forward'' in
the two instances in which it is used in paragraph (a)(3); by removing
the reference in paragraph (b)(2) that reads ``(a)(1)'' and adding the
reference ``(b)(1)'' in its place; and by revising paragraph (a)(1) to
read as follows:
Sec. 23.933 Reversing systems.
(a) * * *
(1) Each system intended for ground operation only must be designed
so that, during any reversal in flight, the engine will produce no more
than flight idle thrust. In addition, it must be shown by analysis or
test, or both, that--
(i) Each operable reverser can be restored to the forward thrust
position; or
(ii) The airplane is capable of continued safe flight and landing
under any possible position of the thrust reverser.
* * * * *
10. Section 23.955 is amended by revising paragraphs (a)(1) through
(a)(4) to read as follows:
Sec. 23.955 Fuel flow.
(a) * * *
(1) The quantity of fuel in the tank may not exceed the amount
established as the unusable fuel supply for that tank under
Sec. 23.959(a) plus that quantity necessary to show compliance with
this section.
(2) If there is a fuel flowmeter, it must be blocked during the
flow test and the fuel must flow through the meter or its bypass.
(3) If there is a flowmeter without a bypass, it must not have any
probable failure mode that would restrict fuel flow below the level
required for this fuel demonstration.
(4) The fuel flow must include that flow necessary for vapor return
flow, jet pump drive flow, and for all other purposes for which fuel is
used.
* * * * *
11. Section 23.959 is amended by designating the current text of
the section as paragraph (a) and by adding a new paragraph (b) to read
as follows:
Sec. 23.959 Unusable fuel supply.
* * * * *
(b) The effect on the usable fuel quantity as a result of a failure
of any pump shall be determined.
12. Section 23.963 is amended by removing the reference in
paragraph (e) that reads ``Sec. 23.959'' and adding the reference
``Sec. 23.959(a)'' in its place, and by revising paragraph (b) to read
as follows:
Sec. 23.963 Fuel tanks: general.
* * * * *
(b) Each flexible fuel tank liner must be shown to be suitable for
the particular application.
* * * * *
13. Section 23.965 is amended by revising paragraph (b)(3)(i) to
read as follows:
Sec. 23.965 Fuel tank tests.
* * * * *
(b) * * *
(3) * * *
(i) If no frequency of vibration resulting from any rpm within the
normal operating range of engine or propeller speeds is critical, the
test frequency of vibration is:
(A) The number of cycles per minute obtained by multiplying the
maximum continuous propeller speed in rpm by 0.9 for propeller-driven
airplanes, and
(B) For non-propeller driven airplanes the test frequency of
vibration is 2,000 cycles per minute.
* * * * *
14. Section 23.973(f) is revised to read as follows:
Sec. 23.973 Fuel tank filler connection.
* * * * *
(f) For airplanes with turbine engines, the inside diameter of the
fuel filler opening must be no smaller than 2.95 inches.
15. Section 23.975(a)(5) is revised to read as follows:
Sec. 23.975 Fuel tank vents and carburetor vapor vents.
(a) * * *
(5) There may be no point in any vent line where moisture can
accumulate with the airplane in either the ground or level flight
attitudes, unless drainage is
[[Page 5137]]
provided. Any drain valve installed must be accessible for drainage;
* * * * *
16. Section 23.979(b) is revised to read as follows:
Sec. 23.979 Pressure fueling systems.
* * * * *
(b) An automatic shutoff means must be provided to prevent the
quantity of fuel in each tank from exceeding the maximum quantity
approved for that tank. This means must--
(1) Allow checking for proper shutoff operation before each fueling
of the tank; and
(2) For commuter category airplanes, indicate at each fueling
station, a failure of the shutoff means to stop the fuel flow at the
maximum quantity approved for that tank.
* * * * *
17. Section 23.1001(b)(2) is revised to read as follows:
Sec. 23.1001 Fuel jettisoning system.
* * * * *
(b) * * *
(2) A climb, at the speed at which the one-engine-inoperative
enroute climb data have been established in accordance with
Sec. 23.69(b), with the critical engine inoperative and the remaining
engines at maximum continuous power; and
* * * * *
Sec. 23.1013 [Amended]
18. Section 13.1013(d)(1) is amended by removing the word
``crankcase''.
Sec. 23.1041 [Amended]
19. Section 23.1041 is amended by adding the phrase ``and maximum
ambient atmospheric temperature conditions'' between the phrases
``maximum altitude'' and ``for which approval''.
20. Section 23.1043 is amended by revising paragraphs (a), (c), and
(d) to read as follows:
Sec. 23.1043 Cooling tests.
(a) General. Compliance with Sec. 23.1041 must be shown on the
basis of tests, for which the following apply:
(1) If the tests are conducted under ambient atmospheric
temperature conditions deviating from the maximum for which approval is
requested, the recorded powerplant temperatures must be corrected under
paragraphs (c) and (d) of this section, unless a more rational
correction method is applicable.
(2) No corrected temperature determined under paragraph (a)(1) of
this section may exceed established limits.
(3) The fuel used during the cooling tests must be of the minimum
grade approved for the engine.
(4) For turbocharged engines, each turbocharger must be operated
through that part of the climb profile for which operation with the
turbocharger is requested.
(5) For a reciprocating engine, the mixture settings must be the
leanest recommended for climb.
* * * * *
(c) Correction factor (except cylinder barrels). Temperatures of
engine fluids and powerplant components (except cylinder barrels) for
which temperature limits are established, must be corrected by adding
to them the difference between the maximum ambient atmospheric
temperature for the relevant altitude for which approval has been
requested and the temperature of the ambient air at the time of the
first occurrence of the maximum fluid or component temperature recorded
during the cooling test.
(d) Correction factor for cylinder barrel temperatures. Cylinder
barrel temperatures must be corrected by adding to them 0.7 times the
difference between the maximum ambient atmospheric temperature for the
relevant altitude for which approval has been requested and the
temperature of the ambient air at the time of the first occurrence of
the maximum cylinder barrel temperature recorded during the cooling
test.
21. Section 23.1045(a) is revised to read as follows:
Sec. 23.1045 Cooling test procedures for turbine engine powered
airplanes.
(a) Compliance with Sec. 23.1041 must be shown for all phases of
operation. The airplane must be flown in the configurations, at the
speeds, and following the procedures recommended in the Airplane Flight
Manual for the relevant stage of flight, that correspond to the
applicable performance requirements that are critical to cooling.
* * * * *
22. Section 23.1047 is revised to read as follows:
Sec. 23.1047 Cooling test procedures for reciprocating engine powered
airplanes.
Compliance with Sec. 23.1041 must be shown for the climb (or, for
multiengine airplanes with negative one-engine-inoperative rates of
climb, the descent) stage of flight. The airplane must be flown in the
configurations, at the speeds and following the procedures recommended
in the Airplane Flight Manual, that correspond to the applicable
performance requirements that are critical to cooling.
23. Section 23.1091(c)(2) is revised to read as follows:
Sec. 23.1091 Air induction system.
* * * * *
(c) * * *
(2) The airplane must be designed to prevent water or slush on the
runway, taxiway, or other airport operating surfaces from being
directed into the engine or auxiliary power unit air intake ducts in
hazardous quantities. The air intake ducts must be located or protected
so as to minimize the hazard of ingestion of foreign matter during
takeoff, landing, and taxiing.
Sec. 23.1093 [Amended]
24. Section 23.1093 is amended by adding the heading
``Reciprocating engines with Superchargers'' to paragraph (c).
25. Section 23.1105(a) is revised to read as follows:
Sec. 23.1105 Induction system screens.
* * * * *
(a) Each screen must be upstream of the carburetor or fuel
injection system.
* * * * *
26. Section 23.1107 introductory text is revised to read as
follows:
Sec. 23.1107 Induction system filters.
If an air filter is used to protect the engine against foreign
material particles in the induction air supply--
* * * * *
27. Section 23.1121(g) is revised to read as follows:
Sec. 23.1121 General.
* * * * *
(g) If significant traps exist, each turbine engine and auxiliary
power unit exhaust system must have drains discharging clear of the
airplane, in any normal ground and flight attitude, to prevent fuel
accumulation after the failure of an attempted engine or auxiliary
power unit start.
* * * * *
28. Section 23.1141(b) is revised to read as follows:
Sec. 23.1141 Powerplant controls: general.
* * * * *
(b) Each flexible control must be shown to be suitable for the
particular application.
* * * * *
29. Section 23.1143(f) is amended by revising the introductory text
to read as follows:
Sec. 23.1143 Engine controls.
* * * * *
(f) If a power, thrust, or a fuel control (other than a mixture
control)
[[Page 5138]]
incorporates a fuel shutoff feature, the control must have a means to
prevent the inadvertent movement of the control into the off position.
The means must--
* * * * *
30. Section 23.1153 is revised to read as follows:
Sec. 23.1153 Propeller feathering controls.
If there are propeller feathering controls installed, it must be
possible to feather each propeller separately. Each control must have a
means to prevent inadvertent operation.
31. Section 23.1181 is amended by adding a new paragraph (b)(3) to
read as follows:
Sec. 23.1181 Designated fire zones; regions included.
* * * * *
(b) * * *
(3) Any complete powerplant compartment in which there is no
isolation between compressor, accessory, combustor, turbine, and
tailpipe sections.
* * * * *
Sec. 23.1183 [Amended]
32. Section 23.1183(a) is amended by removing the word ``approved''
in the next to the last sentence, and adding the phrase ``shown to be
suitable for the particular application'' in its place.
33. Section 23.1191(b) is revised to read as follows:
Sec. 23.1191 Firewalls.
* * * * *
(b) Each firewall or shroud must be constructed so that no
hazardous quantity of liquid, gas, or flame can pass from the
compartment created by the firewall or shroud to other parts of the
airplane.
* * * * *
34. Section 23.1203(e) is revised to read as follows:
Sec. 23.1203 Fire detector system.
* * * * *
(e) Wiring and other components of each fire detector system in a
designated fire zone must be at least fire resistant.
* * * * *
Sec. 23.1305 [Amended]
35. Section 23.1305(b)(3)(ii) is removed and reserved.
Sec. 23.1337 [Amended]
36. Section 23.1337(b)(1) is amended by removing the reference
``Sec. 23.959'' and adding the reference ``Sec. 23.959(a)'' in its
place.
Issued in Washington, DC, on January 29, 1996.
David R. Hinson,
Administrator.
[FR Doc. 96-2084 Filed 2-8-96; 8:45 am]
BILLING CODE 4910-13-M
Complete official Federal Register PDF
FR Doc. 96-2083 Airworthiness Standards; Systems and Equipment Rules Based on European Joint Aviation Requirements
[Federal Register Volume 61, Number 28 (Friday, February 9, 1996)]
[Rules and Regulations]
[Pages 5151-5171]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-2083]
-----------------------------------------------------------------------
DEPARTMENT OF TRANSPORTATION
14 CFR Parts 23 and 91
[Docket No. 27806; Amendment No. 23-49, 91-247]
RIN 2120-AE59
Airworthiness Standards; Systems and Equipment Rules Based on
European Joint Aviation Requirements
AGENCY: Federal Aviation Administration, DOT.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: This final rule amends the systems and equipment airworthiness
standards for normal, utility, acrobatic, and commuter category
airplanes. This amendment completes a portion of the Federal Aviation
Administration (FAA) and the European Joint Aviation Authorities (JAA)
effort to harmonize the Federal Aviation Regulations and the Joint
Aviation Requirements (JAR) for airplanes certified in these
categories. This amendment will provide nearly uniform systems and
equipment standards for airplanes certificated in the United States
under 14 CFR part 23 and in JAA countries under Joint Aviation
Requirements 23, simplifying international airworthiness approval.
EFFECTIVE DATE: March 11, 1996.
FOR FURTHER INFORMATION CONTACT:
Earsa Tankesley, Aerospace Engineer, Standards Office (ACE-100), Small
Airplane Directorate, Federal Aviation Administration, 601 East 12th
Street, Kansas City, Missouri 64106, telephone (816) 426-6932.
SUPPLEMENTARY INFORMATION:
Background
This amendment is based on Notice of Proposed Rulemaking (NPRM) No.
94-21 (59 FR 37620, July 22, 1994). All comments received in response
to Notice 94-21 have been considered in adopting this amendment.
This amendment completes part of an effort to harmonize the
requirements of part 23 and JAR 23. The revisions to part 23 in this
amendment pertain to systems and equipment airworthiness standards.
Three other final rules are being issued in this Federal Register that
pertain to airworthiness standards for flight, powerplant, and
airframe. These related rulemakings are also part of the harmonization
effort. Interested persons should review all four final rules to ensure
that all revisions to part 23 are recognized.
The harmonization effort was initiated at a meeting in June 1990 of
the JAA Council (consisting of JAA members from European countries) and
the FAA, during which the FAA Administrator committed the FAA to
support the harmonization of the U.S. regulations with the JAR that
were being developed. In response to the commitment, the FAA Small
Airplane Directorate established an FAA Harmonization Task Force to
work with the JAR 23 Study Group to harmonize part 23 with the proposed
JAR 23. The General Aviation Manufacturers Association (GAMA) also
established a JAR 23/part 23 committee to provide technical assistance.
The FAA, JAA, GAMA, and the Association Europeenne des
Constructeurs de Material Aerospatial (AECMA), an organization of
European airframe manufacturers, met on several occasions in a
continuing harmonization effort.
Near the end of the effort to harmonize the normal, utility, and
acrobatic category airplane airworthiness standards, the JAA requested
and received recommendations from its member countries on proposed
airworthiness standards for commuter category airplanes. Subsequent JAA
and FAA meetings on this issue resulted in proposals that were
reflected in Notice 94-21 to revise portions of the part 23
[[Page 5152]]
commuter category airworthiness standards. Accordingly, this final rule
adopts the systems and equipment airworthiness standards for all part
23 airplanes.
In January 1991, the FAA established the Aviation Rulemaking
Advisory Committee (ARAC) (56 FR 2190, January 22, 1991). At an FAA/JAA
Harmonization Conference in Canada in June 1992, the FAA announced that
it would consolidate the harmonization effort within the ARAC
structure. The FAA assigned to ARAC the rulemakings related to JAR/part
23 harmonization, which ARAC assigned to the JAR/FAR 23 Harmonization
Working Group. The proposals for systems and equipment airworthiness
standards contained in Notice 94-21 were a result of both the working
group's efforts and the efforts at harmonization that occurred before
the formation of the working group.
The JAA submitted comments to the FAA on January 20, 1994, in
response to the four draft proposals for harmonization of the part 23
airworthiness standards. The JAA submitted comments again during the
comment period of the NPRM. At the April 26, 1995, ARAC JAR/FAR 23
Harmonization Working Group meeting, the JAA noted that many of the
comments in the January 20 letter had been satisfied or were no longer
relevant. The few remaining items concern issues that are considered
beyond the scope of this rulemaking and, therefore, will be dealt with
at future FAA/JAA Harmonization meetings.
Discussion of Comments
General
Interested persons were invited to participate in the development
of these final rules by submitting written data, views, or arguments to
the regulatory docket on or before November 21, 1994. Six commenters
responded to Notice 94-21. Two of these commenters, the Civil Aviation
Authority (CAA) and the Joint Aviation Authorities (JAA), submitted
comments that were identical; therefore, the responses to both
commenters are the same. Minor technical and editorial changes have
been made to the proposed rules based on relevant comments received and
after further review by the FAA.
One general comment was received from Transport Canada. It
expressed concurrence with the notice. The comment also noted that the
proposals (the comment did not identify the specific sections) are
applicable to JAR Very Light Aircraft (VLA) standards for night
operations and that it will consider adding these proposals to the
Canadian standards for VLA approved for night and Instrument Flight
Rule (IFR) operations. It suggests that the FAA may wish to consider
this as well.
Discussion of Comments to Specific Sections of Parts 23 and 91
Section 23.677 Trim Systems
Proposed Sec. 23.677(a) would clarify the need to mark the lateral
and directional trim indicators with the neutral trim position. Since
trim indicators on most airplanes are currently marked with the neutral
position of the trimming device, this proposal would standardize the
cockpit markings for all airplanes.
Revised paragraph (a) would also add a requirement for the pitch
trim indicator to be marked with the proper pitch trim range for the
takeoff of the airplane. Some takeoff accidents, including some
involving fatalities, have occurred because the pitch trim was not set
to the proper range needed for the airplane takeoff.
No comments were received on the proposals for this section. On
reviewing the published notice, the FAA discovered the phrase ``center
or gravity'' should have read ``center of gravity.''
The proposals are adopted with the above correction.
Section 23.691 Artificial Stall Barrier System
The requirements of Sec. 23.201(c) provide criteria for the in-
flight demonstration of wings level stall. The requirements also
specify the means of identifying when a stall has occurred. Amendment
No. 23-45 (58 FR 42136, August 6, 1993) revised Sec. 23.201(c) by
adding the activation of an artificial stall barrier as an acceptable
means of identifying when a stall has occurred. Proposed new
Sec. 23.691 would provide standards for artificial stall barrier
systems if such a system is used to show compliance with
Sec. 23.201(c).
Two comments were received on this proposal in which the JAA and
the CAA note that the proposal has not been fully discussed by JAA
specialists and recommend that the proposal be withdrawn. The JAA also
provides a list of 12 issues to be considered if the FAA proceeds with
the adoption of the proposal.
The FAA has reviewed the handling of this proposal from the time
that it was identified in the original 1990 FAA comments on an early
draft of JAR 23. This item was first presented to the JAA specialists
for review in 1991 and since that time it has been thoroughly
coordinated with the JAA. The JAA's current JAR 23 Notice of Proposed
Amendment list contains an item for the inclusion of 23.691 in JAR 23,
based on the text in a draft of this final rule. The FAA understands
that the JAA expects to adopt the item following the finalization of
this rule. Under these circumstances, the FAA does not find it
necessary to defer adoption for further consideration.
Moreover, the FAA has reviewed each of the 12 issues that the JAA
provided for FAA's consideration, and prepared a response which has
been included in the Rules Docket. Since the issues are beyond the
scope of the proposal, the FAA has not included them in this final rule
publication.
In the course of the FAA's review, however, the FAA noted that the
word ``necessary'' in the introductory paragraph of Sec. 23.691 should
be changed to ``used,'' to make it clear that the equipment
requirements of this section are applicable if a stick pusher system is
used in the airplane to show compliance with Sec. 23.201(c).
Section 23.691 is adopted with the above change.
Section 23.697 Wing Flap Controls
Proposed new Sec. 23.697(c) would provide safety standards for the
wing flap control levers installed in airplanes that use wing flap
settings other than fully retracted when showing compliance with
Sec. 23.145.
No comments were received on the proposal for this section, and it
is adopted as proposed.
Section 23.701 Flap Interconnection
Section 23.701 (a)(1) and (a)(2) would be revised to clarify the
requirements for flap systems installed on part 23 airplanes.
No comments were received on the proposals for this section, and
they are adopted as proposed.
Section 23.703 Takeoff Warning System
This proposed new section would require a takeoff warning system on
some commuter category airplanes. The requirement would be applicable
if the certification flight evaluation showed that an unsafe takeoff
condition would result if lift devices or longitudinal trim devices are
set to any position outside the approved takeoff range. If the
evaluation shows that no unsafe condition would result at any setting
of these devices, a takeoff warning system would not be required. For
those airplanes on which a warning system must be installed, the
proposal would provide requirements for the installation of the system.
[[Page 5153]]
No comments were received on the proposal for this section, and it
is adopted as proposed.
Section 23.723 Shock Absorption Tests
To correct a grammatical error in the rules, paragraph (b) of this
section would be revised by changing the word ``reserved'' in the
phrase ``reserved energy absorption capacity'' to ``reserve.''
No comments were received on the proposal for this section, and it
is adopted as proposed.
Section 23.729 Landing Gear Extension and Retraction System
This proposal would revise Sec. 23.729(e) to clarify that a landing
gear indicator is required for each gear. This proposal would also add
a new Sec. 23.729(g) requiring that if the landing gear bay is used as
the location for equipment other than landing gear, that equipment must
be designed to minimize damage from items such as a tire burst, or
rocks, water, and slush that may enter the landing gear bay.
One comment was received on this section, which suggested that the
current requirements do not properly include a standard for amphibious
operation. The comment specifically identified the warning horn or
similar aural device as confusing and a source of pilot error during
operations of an amphibian airplane. The commenter provided a
suggestion for a landing gear position indicator on an amphibian
airplane that would assist in clarifying this confusion.
Although this comment has merit, the proposed rule did not consider
such a requirement, and no action has been taken to include the
suggested landing gear position indicator for amphibian airplanes in
this final rule. This comment will be retained and the suggestion for
an amphibian landing gear indicator will be presented at a future
harmonization meeting for specialist consideration and possible future
inclusion in part 23/JAR 23.
Although not proposed in the notice, the text of paragraph (g) has
been revised to identify sources of equipment damage that should be
considered in the application of this requirement.
Section 23.729 is adopted with the above changes.
Section 23.735 Brakes
Section 23.735(a) would be revised to state clearly that wheel
brakes must be provided. A proposed new Sec. 23.735(c) would require
the brake system to be designed so that the brake manufacturer's
specified brake pressures are not exceeded during the landing distance
determined in accordance with Sec. 23.75. Proposed new Sec. 23.735(e),
applicable to commuter category airplanes, would require establishing
the minimum rejected takeoff brake kinetic energy capacity rating of
each main wheel brake assembly.
One comment was received on the proposal for Sec. 23.735(e), which
noted that the factor, ``0.0443'' is not defined for the kinetic energy
formula. The commenter recommends that V be stated in units such as,
feet-per-second (or mph, or knots, as required). The commenter notes
that the recommended clarification should reduce possible future
misunderstanding and confusion, as well as improper brake capacity
calculations.
The FAA agrees. The units for ``V'' in the definition of the
kinetic energy formula were inadvertently omitted from the proposal for
this section. To correct this omission, the definition is being revised
to read: ``V=Ground speed, in knots, associated with the maximum value
of V1 selected in accordance with Sec. 23.51(c)(1).''
The proposal is adopted with the above change.
Section 23.745 Nose/Tail Wheel Steering
Proposed new Sec. 23.745 would provide requirements that apply if
nose/tail wheel steering is installed.
No comments were received on the proposal for this section, and it
is adopted as proposed.
Section 23.775 Windshields and Windows
Section 23.775(a) would be revised to allow internal glass panels
of windshields and windows to be constructed of nonsplintering
material, as well as nonsplintering glass. Section 23.775(c) would be
revised to clarify that the requirement of this section applies to
pressurized airplanes if certification for operation up to and
including 25,000 feet is requested.
Section 23.775(h), introductory text, and paragraph (h)(1) would be
added to require windshield panes of commuter category airplanes that
are directly in front of the pilots to withstand the impact of a two-
pound bird strike. This requirement is based on a Joint Aviation
Authority recommendation to add windshield bird strike protection for
commuter category airplanes.
No comments were received on the proposals for this section, and
they are adopted as proposed.
Section 23.783 Doors
Proposed paragraph (b) would add a requirement that passenger doors
must not be located near any propeller disk or any other potential
hazard that could endanger persons using the door. The propeller disk
remains the prominent hazard but other items, such as hot deicer
surfaces or sharp objects on the airplane structure, are also hazards.
Proposed new paragraph (g) would require lavatory doors, if
installed, that would not trap occupants inside a closed and locked
lavatory compartment.
No comments were received on the changes proposed for this section,
and they are adopted as proposed.
Section 23.785 Seats, Berths, Litters, Safety Belts, and Shoulder
Harnesses
Seat requirements of part 23 would be clarified by moving the seat
provisions from current Sec. 23.1307(a), which requires a seat or berth
for each occupant, to the introductory text of Sec. 23.785. The notice
proposed to reference the requirements of Sec. 23.1413, for a metal-to-
metal latching device for seat belts and shoulder harnesses, in
Sec. 23.785(b). These proposed changes were intended to combine related
seat requirements in one section. The JAA and CAA comments note that
the phrase ``with metal-to-metal latching device'' is also reflected in
Sec. 23.1413, but with different applicability.
The FAA agrees. The proposed changes to this section were made to
clarify the seat requirements by including, or referencing, all of the
seat requirements in one section. The notice proposal to add the phrase
``with metal-to-metal latching devices as required by Sec. 23.1413'' to
paragraph (b) would provide this clarification for normal, utility, or
acrobatic category airplanes. However, because this paragraph is not
applicable to all categories of airplanes, this change, along with the
retention of Sec. 23.1413 could be confusing.
To accomplish the originally intended clarification of the seat
requirements, and to correct the applicability differences noted by the
commenters, Sec. 23.1413 is being removed and the phrase, ``with metal-
to-metal latching device'' is being added to Secs. 23.785(b) and
23.785(c). Also, to make Sec. 23.785(c) clearer, it has been divided
into two sentences.
Section 23.785 is amended by adopting the introductory text and the
revision of paragraphs (b) and (c) as identified above.
[[Page 5154]]
Section 23.787 Baggage and Cargo Compartments
Section 23.787 would be revised by extending the present
requirements for cargo compartments to baggage compartments. As
proposed, future baggage compartments on all airplane categories would
be required to: be placarded for their maximum weight capacity; have a
means to prevent the baggage from shifting; and have a means to protect
controls, wiring, lines, and equipment or accessories that are located
in the compartment and whose damage or failure would affect safe
operation of the airplane. This revision would result in the commuter
category requirements of Sec. 23.787(g) being redundant, and that
requirement is being removed.
Proposed revisions to this section would also move the requirements
of paragraphs (d) and (f) to a proposed new Sec. 23.855, which would
address cargo and baggage compartment fire protection. Proposed new
paragraph (c) of this section would require flight crew emergency exits
on airplanes that are used only for the carriage of cargo to meet the
requirements of Sec. 23.807.
No comments were received on the proposal for this section, and
they are adopted as proposed.
Section 23.791 Passenger Information Signs
This proposed new section would require at least one illuminated
sign to notify passengers when seat belts should be fastened on those
airplanes in whit the flightcrew members cannot observe the other
occupants' seats or where the flightcrew members' compartment is
separated from the passenger compartment. One comment was received on
this proposal, which noted the JAA's support of the proposal to require
all airplanes, where the flightcrew members cannot observe the
passenger seats, to be equipped with a ``fasten seat belt'' sign. The
JAA also identified its intent to take NPA action to propose the same
requirement.
Section 23.791 is adopted as proposed.
Section 23.807 Emergency Exits
Proposed new Sec. 23.807(a)(4) would provide the same protection
from any propeller disk and other potential hazard for a person who
uses emergency exits as that provided by proposed Sec. 23.783(b) for a
person who uses a passenger door.
The proposed revision of Sec. 23.807(b) would provide that the
inside handles of emergency exits that open outward must be designed so
that the emergency exit is protected against inadvertent operation.
The proposed revisions to Sec. 23.807(b)(5) and new
Sec. 23.807(b)(6) would apply to acrobatic and utility category
airplanes that are approved for maneuvers, such as spinning. The
proposed rule would require that emergency exits for these category
airplanes allow the occupants to abandon the airplane at certain speeds
related to such maneuvers.
No comments were received on the proposals for this section, and
they are adopted as proposed.
Section 23.841 Pressurized Cabins
The proposed revision to Sec. 23.841(a) would extend the cabin
pressure requirements of current paragraph (a), which now apply to
airplanes certificated for operation above 31,000 feet, to airplanes
certificated for operation over 25,000 feet.
No comments were received on this proposal, and it is adopted as
proposed.
Section 23.853 Passenger and Crew Compartment Interiors
This proposal would revise the section heading from ``Compartment
interiors'' to ``Passenger and crew compartment interiors'' to clarify
the content of the section.
No comments were received on the proposal for this section, and it
is adopted as proposed.
Section 23.855 Cargo and Baggage Compartment Fire Protection
This proposed new section would require the following:
Proposed paragraph (a) would require all sources of heat that are
capable of igniting the contents of each cargo and baggage compartment
to be shielded and insulated to prevent such ignition.
Proposed paragraph (b) would require cargo and baggage compartments
to be constructed of materials that meet the appropriate provisions of
Sec. 23.853(d)(3). Currently these requirements apply to commuter
category airplanes and to the materials used in the compartments of
these airplanes. The proposed new requirement would expand this
applicability to the cargo and baggage compartments of all part 23
airplanes. In effect, the proposed new requirement would require
materials that are self-extinguishing rather than flame resistant as
currently required under Sec. 23.787(d).
Proposed new paragraph (c) would add new fire protection
requirements for cargo and baggage compartments for commuter category
airplanes. The proposed rule would require one of the following
alternatives: (1) Either the compartment must be located where pilots
seated at their duty station would easily discover the fire or the
compartment must be equipped with a smoke or fire detector system to
provide a warning at the pilot's station. Access to the compartment
with a fire extinguisher must also be provided; (2) If the cargo or
baggage compartment is inaccessible to the flightcrew, it must be
equipped with a fire detector system that provides a warning at the
pilot's station, and the compartment must have ceiling and sidewall
floor panels constructed of materials that have been subjected to and
meet the vertical self-extinguishing tests of appendix F of part 23;
(3) The Compartment must be constructed and sealed to contain any fire.
Two comments were received on this proposal. The JAA and the CAA
comment that proposed paragraph (b) would extend the self-extinguishing
standards of Sec. 23.853(d)(3) to the baggage and cargo compartments of
all airplanes. JAR 23.855 requires this self-extinguishing standard for
commuter category only. The commenters noted that the proposed
applicability of this standard to all airplanes has not been agreed to
for JAR 23.
There were no objections to the proposal or suggestions for
changes, and Sec. 23.855 is adopted as proposed.
Section 23.867 Electrical Bonding and Protection Against Lightning and
Static Electricity
This proposed revision would change the heading that precedes
Sec. 23.867 from ``Lightning Evaluation'' to ``Electrical Bonding and
Lightning Protection.'' It would also revise the section heading from
``Lightning protection of structures'' to ``Electrical bonding and
protection against lightning and static electricity.'' The proposed
revisions more accurately clarify the content of the section.
No comments were received on this proposal, and it is adopted as
proposed.
Section 23.1303 Flight and Navigation Instruments
The introductory text of Sec. 23.1303 would be revised to clarify
that the section contains the minimum required instruments. Also,
Sec. 23.1303(d) would add a requirement for those airplanes whose
performance must be based on weight, altitude, and temperature to be
equipped with a free air temperature indicator. A new sentence added to
Sec. 23.1303(e)(2) would state that nuisance overspeed warnings should
not occur at lower speeds where pilots might ignore the warning. A new
paragraph (f) would propose requirements for attitude instruments
[[Page 5155]]
that include a means for flightcrew members to adjust the relative
position of the attitude reference symbol and the horizon line.
Finally, a new paragraph (g) would be added to identify certain
specific instruments required for a commuter category airplane.
Two comments were received, which note that the additional
instruments proposed for commuter category airplanes are not included
in JAR 23. The JAA and the CAA also note that consideration of this
proposal is being deferred by the JAA pending the publication of JAR-
OPS and a review of the proposal by JAA specialists. (JAR-OPS are the
JAR operations requirements issued by JAA.)
The requirement for Sec. 23.1303 is adopted as proposed.
Section 23.1307 Miscellaneous Equipment
This proposal would remove Sec. 23.1307(a); these requirements are
being added to Sec. 23.785. The discussion of Sec. 23.785 above
addresses this change.
Also, the provisions of Sec. 23.1307(b) are being removed from
Sec. 23.1307 as proposed. These requirements are stated in
Secs. 23.1361, 23.1351, and 23.1357, respectively, and are being
removed to prevent confusion. The designation of paragraph (c) would be
removed since it would no longer be necessary.
Two comments were received on this proposal. In these comments, the
JAA and the CAA note that paragraph (c), adopted by Amendment 24-43, is
pending a review by the JAA specialist for JAR 23.
The proposal is adopted as proposed.
Section 23.1309 Equipment, Systems, and Installation
Proposed new Sec. 23.1309(a)(4) would correct an omission that
occurred when the FAA issued Amendment No. 23-41 (55 FR 43306, October
26, 1990). To correct this oversight, and to continue the single fault
provision of this paragraph, Sec. 23.1309(a)(4) was proposed.
Two comments were received on this proposal. The JAA and the CAA
note that, although the proposal for Sec. 23.1309(a)(4) is not included
in JAR 23, they support it, and will be considered for adoption in JAR
23.
Section 23.1309(a)(4) is adopted as proposed.
Section 23.1311 Electronic Display Instrument Systems
This proposal would revise Sec. 23.1311 to remove redundant
requirements and to clarify which secondary instruments are required
and the visibility requirements for these instruments.
No comments were received on the proposal, and it is adopted as
proposed.
Section 23.1321 Arrangement and Visibility
The proposed revision to Sec. 23.1321(d) would remove the wording
that limits the instrument location to airplanes certificated for
flight under instrument flight rules or airplanes weighing more than
6,000 pounds. Instruments are for the pilot and should be located near
that pilot's vertical plane of vision without regard to what flight
rules are approved for the airplane's operation or the maximum weight
of the airplane.
No comments were received on the proposal, and it is adopted as
proposed.
Section 23.1323 Airspeed Indicating System
The proposed new Sec. 23.1323(c) would add a requirement that each
airspeed indicating system design and installation should provide
positive drainage of moisture from the system.
To better organize the requirements that are applicable to the
airspeed systems on all part 23 airplane categories and those that
would be additional requirements for the airspeed systems of commuter
category airplanes, the FAA proposed to redesignate existing paragraphs
(c) and (e), respectively, as paragraphs (e) and (d). By this
redesignation, paragraphs (a), (b), (c), and (d) would apply to all
airplanes, and paragraphs (e) and (f) would include additional
requirements applicable to commuter category airplanes.
The proposal for redesignated paragraph (e) would also remove the
words ``in flight and'' from the first sentence of that paragraph.
Proposed new Sec. 23.1323(f) would provide that, on those commuter
airplanes where duplicate airspeed indicators are required, the
airspeed pitot tubes must be located far enough apart so that both
tubes would not be damaged by a single bird strike.
No comments were received on the proposals for this section, and
they are adopted as proposed.
Section 23.1325 Static Pressure System
Current Sec. 23.1325(g) exempts from the requirements of
Sec. 23.1325(b)(3) airplanes that are prohibited from flight in
instrument meteorological conditions in accordance with
Sec. 23.1559(b). The notice proposed to revise Sec. 23.1325(g) by
adding airplanes that are prohibited from flight in icing conditions to
the airplanes that are currently exempted from the requirements of
Sec. 23.1325(b)(3).
No comments were received on the proposal for this section, and it
is adopted as proposed.
Section 23.1326 Pitot Heat Indication Systems
Proposed new Sec. 23.1326 would require the installation of a pitot
tube heat indicating system on those airplanes required to be equipped
with a heated pitot tube.
The comments received from the JAA and the CAA show that this
existing requirement in JAR 23 is applicable to commuter category
airplanes only. They state that the FAA proposal would be applicable to
all airplanes and would result in a continuous indication of pitot heat
non-selection in every case. The JAA and the CAA do not support the
applicability of this section to all airplanes.
The FAA does not agree that the proposal would be applicable to all
airplanes. The proposal would apply only to these airplanes that are
required, by Sec. 23.1323(d), to be equipped with a heated pitot tube.
By this applicability, airplanes that are approved for instrument
flight, or for flight in icing conditions, would be required to be
equipped with a heated pitot tube and a heated pitot tube indicator.
These are the flight conditions where the pilot needs to be alerted if
the pitot heat has not been turned on or if the heater fails. By this
applicability, an airplane owner who has installed a heated pitot tube
as optional equipment may continue to operate the airplane without a
heated pitot tube indicator.
The preamble of the NPRM discusses the safety benefits that would
be provided by this change.
The proposal is adopted as proposed.
Section 23.1329 Automatic Pilot System
Section 23.1329(b), as adopted by Amendment No. 23-24 (58 FR 18958,
April 9, 1993), does not state clearly that stick controlled airplanes
must be equipped with the same autopilot quick release controls that
are required for airplanes with control wheels. The proposed revision
of Sec. 23.1329(b) would make it clear that a quick release control
must be installed on each control stick of an airplane that can be
operated from either pilot seat.
No comments were received on the proposal for this section, and it
is adopted as proposed.
Section 23.1337 Powerplant Instruments Installation
This proposal would revise the heading of this section to
accurately reflect the powerplant instrument
[[Page 5156]]
installation requirements that it contains. The difference between this
section and Sec. 23.1305 is clarified by this change.
Section 23.1337(b) would be revised by removing the wording that
authorizes installation of only those fuel indicators marked in gallons
and pounds. Section 23.1337(b) would also be revised by adding the word
``usable'' to the first sentence of this section. Proposed new
Sec. 23.1337(b)(4) would require a ``means to indicate'' the amount of
usable fuel in each tank when the airplane is on the ground.
No comments were received on the proposals for this section, and
they are adopted as proposed.
Section 23.1351 General
The proposal would revise current Sec. 23.1351 by removing portions
of paragraphs (b)(2) and (b)(3) and by removing paragraph (b)(4). The
requirements proposed for removal are applicable to alternators that
depend upon the battery for initial excitation or for stabilization.
Revised Sec. 23.1351(c)(3) would require an automatic means for
reverse current protection.
Section 23.1351(f) would be revised by adding a provision that
would require the ground power receptacle to be located where its use
will not result in a hazard to the airplane or to people on the ground
using the receptacle.
No comments were received on the proposals. The proposals are
adopted as proposed, except that paragraph (c)(3) has been revised to
clarify that protection for any generator/alternator and the airplane
electrical system must be provided.
Section 23.1353 Storage Battery Design and Installation
Proposed new Sec. 23.1353(h) would require that, in the event of a
complete loss of the primary electrical power generating system,
airplane battery capacity must be sufficient to supply at least 30
minutes of electrical power to those loads essential to the continued
safe flight and landing of the airplane.
No comments were received on this proposal, and it is adopted as
proposed.
Section 23.1359 Electrical System Fire Protection
Proposed new Sec. 23.1359 would require smoke and fire protection
for electrical system installations. Proposed Sec. 23.1359(a) would
state that electrical systems must meet the applicable requirements of
Secs. 23.863 and 23.1182.
Proposed Sec. 23.1359(b) would require that the electrical systems
components installed in designated fire zones and used during emergency
procedures be fire resistant. This provision is needed to clarify the
requirements for electrical system components that may be installed in
the designated fire zones identified in Sec. 23.1181.
Finally, Sec. 23.1359(c) would provide burn criteria for electrical
wire and cables. A revision to appendix F of part 23 that would add
appropriate wire testing criteria was also included in this proposal.
No comments were received on the proposals, and they are adopted as
proposed.
Section 23.1361 Master Switch Arrangementt
To harmonize with the JAR this proposal would revise
Sec. 23.1361(c) by making an editorial change to remove the last two
words of the paragraph that read ``in flight.'' This change will not
alter the meaning of the requirement.
No comments were received on the proposal for this section, and it
is adopted as proposed.
Section 23.1365 Electrical Cables and Equipment
This proposal would revise Sec. 23.1365(b) and would add three new
paragraphs.
Section 23.1365(b) would be revised in relation to proposed new
Sec. 23.1359(c), which would require self-extinguishing insulated
electrical wires and cables. The proposed revisions to Sec. 23.1365(b)
would remove the reference to electrical cables from the flame
resistance requirement since the cables would be required to have self-
extinguishing insulation under Sec. 23.1359(c). The proposed revision
retains the requirement for electrical cables and associated equipment
to not emit dangerous quantities of toxic fumes when they overheat. The
phrase ``at least flame resistant'' in Sec. 23.1365(b) would also be
revised by removing the words ``at least.''
The three paragraphs that would be added by this proposal would
require: (1) The identification of electrical cables, terminals, and
connectors; (2) the protection of electrical cables from damage by
external sources; and (3) installation criteria for cables that cannot
be protected by a circuit protection device.
No comments were received on the proposals, and they are adopted as
proposed.
Section 23.1383 Taxi and Landing Lights
The landing light requirements of Sec. 23.1383 would be revised by
adding taxi lights to this section.
Current Sec. 23.1383(a), which requires the lights to be
acceptable, would be deleted because it is unnecessary to state this.
The paragraphs would be redesignated accordingly.
Current Sec. 23.1383(b)(3) requires that a landing light must be
installed to provide enough light for a night landing. Proposed
Sec. 23.1383(c) would revise ``night landing'' to ``night operation''
since the requirements would also cover taxiing and parking. Proposed
new paragraph (d) would require the lights to be installed so that they
do not cause a fire hazard.
No comments were received on the proposals for this section, and
they are adopted as proposed.
Section 23.1401 Anticollision Light System
This proposal would revise Sec. 23.1401 to require the installation
of an anticollision light system on all part 23 airplanes.
No comments were received on the proposal for this section, and it
is adopted as proposed.
Section 23.1413 Safety Belts and Harnesses
The proposals in the notice did not include a revision that would
remove this section. However, comments received on the notice proposal
for Sec. 23.785 showed that the proposed change, along with the
retention of this section could be confusing and, thereby, not
accomplish the FAA's intent to clarify the seat requirement.
Section 23.1413 is being removed, and the phrase ``with metal-to-
metal latching device'' is being added to Secs. 23.785(b) and 23.785(c)
to accomplish the intended clarification identified in this notice.
This change will not add a substantive requirement.
Section 23.1431 Electronic Equipment
This proposal would add three new paragraphs to Sec. 23.1431.
Proposed new paragraph (c) would provide that airplanes required to be
operated by more than one flightcrew member be evaluated to determine
if the flightcrew members can converse without difficulty when they are
seated at their duty stations. Proposed new paragraph (d) would require
installed communication equipment to use ``off-on'' transmitter
switching that will ensure that the transmitter is turned off when it
is not being used. Proposed new paragraph (e) would require that, if
provisions for communication headsets are provided, the applicant must
demonstrate that flightcrew members will receive all warnings when a
headset is being used. The
[[Page 5157]]
demonstration must be made under actual cockpit noise conditions.
The Air Line Pilots Association (ALPA) submitted the only comment
on this proposal. ALPA expressed concern over the cockpit noise
conditions that would be used in the determination of compliance with
proposed paragraphs (c) and (e).
This notice preamble identified an earlier harmonization
consideration to include text in JAR 23 and this proposal that would
have required compliance under actual cockpit noise conditions. The
preamble explained that this text was not included because it may be
misinterpreted and result in demonstrations being conducted under more
severe noise conditions than are needed. ALPA understood this
explanation to mean that the FAA had made a determination that
compliance demonstrations should not be conducted under the actual
cockpit noise conditions that exist when the airplane is being
operated. ALPA recommends that the FAA re-evaluate its position.
The FAA has reviewed the record of earlier harmonization
discussions where the concerns about noise conditions were first
considered. During these discussions, which included industry
representatives, it was decided that any requirement for testing under
noise conditions could be interpreted to require testing under
conditions that were more severe than needed. Accordingly, it was
decided that such text should not be included in either JAR or part 23.
The FAA agreed with the position reached in these discussions;
therefore, these proposals did not include any requirements for testing
under noise conditions, and the explanation was placed in the notice to
identify why such requirements were not included.
Earlier harmonization and this comment make it clear that the
proposals, with or without the requirements for testing under noise
conditions, may be misinterpreted. ALPA's interpretation that the FAA
had determined that the demonstrations of compliance with these
requirements should not be conducted under actual cockpit noise
conditions, is not correct. The test for compliance with the
requirements should be done under the actual noise conditions.
To clarify the conditions under which these evaluations should be
conducted, not withstanding earlier harmonization agreements, these two
paragraphs are being revised to include the phrase, ``under actual
cockpit noise conditions when the airplane is being operated.''
The proposals for Sec. 23.1431 are adopted with the above-
identified revision of paragraphs (c) and (e).
Section 23.1435 Hydraulic Systems
Since the adoption of Amendment No. 23-43 (58 FR 18958, April 9,
1993), the FAA has received questions about the installation of
hydraulic accumulators that are permitted by Sec. 23.1435(c). These
questions have shown that applicants find Sec. 23.1435(c) difficult to
understand. The notice proposed a revision of Sec. 23.1435(c) to
clarify the type and size of a hydraulic accumulator or reservoir that
may be installed on the engine side of any firewall.
No comments were received on the proposal for this section, and it
is adopted as proposed.
Section 23.1447 Equipment Standards for Oxygen Dispensing Units
If radio equipment is installed, proposed new Sec. 23.1447(a)(4)
would require that flightcrew oxygen dispensing units be designed to
allow the use of communication equipment when oxygen is being used.
Revisions to Sec. 23.1447(d) would require the flightcrew oxygen
dispensing units to either be the quick donning type or be
automatically presented before the cabin pressure altitude exceeds
15,000 feet, if the airplane is certificated for operation above 25,000
feet. The passenger oxygen requirements of former paragraph (e) and
(e)(1) have not been revised, but are now contained in new paragraph
(e). Proposed paragraph (d) would be revised to provide the flightcrew
and the airplane passengers the same level of safety as required by
other airworthiness standards (14 CFR part 25). This proposed revision
is also consistent with the proposed revision of Sec. 23.841.
No comments were received on the proposals for this section, and
they are adopted as proposed.
Section 23.1451 Fire Protection for Oxygen Equipment
This proposed new section would specify fire protection for oxygen
equipment installations. Section 23.1451(a) and (b) would,
respectively, prohibit the installation of oxygen equipment in
designated fire zones and require that oxygen system components be
protected from the heat from designated fire zones. Proposed
Sec. 23.1451(c) would require oxygen equipment and lines to be
installed so that escaping oxygen cannot come in contact with grease,
fluids, or vapors that may be present.
No comments were received on the proposal for this section, and it
is adopted as proposed.
Section 23.1453 Protection of Oxygen Equipment From Rupture
Proposed new Sec. 23.1453 would clarify the rupture protection
needed for oxygen system installation. Rupture protection for oxygen
systems is currently required by the application of the structure load
requirements of part 23. The addition of Sec. 23.1453(a) would clarify
the application of these load requirements and would identify the need
to consider maximum temperatures and pressures that may be present.
Section 23.1453(b) would identify the protection to be provided for
high pressure oxygen sources and the pressure lines that connect such
sources to the oxygen system shutoff valves.
The comments received on this proposal from the JAA and the CAA
noted that the word ``high'' in paragraph (b) could lead to confusion
and require interpretation. Accordingly, they suggested that the words
``High pressure oxygen sources'' be revised to read as follows:
``Oxygen pressure sources.'' This is the same text that is used in JAR
23.
The FAA agrees with the suggested wording change. When the proposal
was originally drafted, the FAA was considering the oxygen source side
of the oxygen regulator, the high pressure side, and the passenger
dispensing side of the regulator, the low pressure side; thus, the word
``high'' was used.
The suggested change will not alter the requirement's applicability
and will be more clearly understood. It is also noted that the
suggested text change will more closely align with the same requirement
in Sec. 25.1453. Section 23.1453 is changed by revising the first four
words of proposed paragraph (b) to read, ``Oxygen pressure sources.''
This section is adopted with the above change.
Section 23.1461 Equipment Containing High Energy Rotors
This proposal would revise paragraph (a) of this section to clarify
that the requirements apply to high energy rotors included in an
auxiliary power unit (APU).
One comment was received on this proposal. The JAA and the CAA
noted that the JAA does not agree that the requirements of this section
are applicable to APU's. They suggest that the proposed changes to
paragraph (a) not be adopted.
In the preamble of the notice, the FAA identified policy issued
after this
[[Page 5158]]
section was adopted. That policy indicated that the section was
applicable to ``equipment such as APU's and constant speed drives,''
but this policy was not widely distributed to all FAA offices. The
proposal in the notice does not alter the policy applicability, but it
does clarify the policy.
Removing the proposed change would not alter the situation. The FAA
defines ``Equipment containing high energy rotors'' to include APU's
and constant speed drives. In cases where rotor containment has been
demonstrated by complying with JAA-APU or FAA TSO C77a, this compliance
will be examined by the FAA office responsible for the airplane
certification. If it is found that this demonstration also meets the
requirements of Sec. 23.1461, it will be accepted for the airplane's
compliance.
The proposal for Sec. 23.1461 is adopted as proposed.
Appendix F to Part 23--Test Procedure
This proposal would revise appendix F to provide the procedures
needed to test electrical wire to ensure that the wire meets the burn
requirements of Sec. 23.1359. It would also add procedures for meeting
the 45 degree and 60 degree angle burn test requirement proposed in
Secs. 23.855(c)(2) and 23.1359(c), respectively. Paragraph (b) would
clarify the specimen configuration to be used in the proposed testing
procedures.
No comments were received on the proposals, and they are adopted as
proposed.
Section 91.205 Powered Civil Aircraft With Standard Category U.S.
Airworthiness Certificates: Instrument and Equipment Requirements
Proposed new Sec. 91.205(b)(11) would require that airplanes
certificated under Sec. 23.1401 be equipped with an anticollision light
system for day visual flight rule (VFR) operations. Day VFR operations
are discussed under Sec. 23.1401 of the notice.
No comments were received on the proposed addition to this section,
and that addition is adopted as proposed.
Section 91.209 Aircraft Lights
Proposed new Sec. 91.209(b) would require that airplanes equipped
with an anticollision light system be operated with the anticollision
light system lighted during all types of operations, except when the
pilot determines that, because of operating conditions, it would be in
the interest of safety to turn the lights off.
One commenter believes that the proposal is unacceptable to
aircraft operators. This commenter contends that the midair collision
statistics are purely conjectural and that any safety benefits are
merely guesswork. The commenter also notes that this change would
affect an aircraft's dispatch capability, and questions why an airplane
that is perfectly capable of being flown should be grounded from
daytime flight because something, such as a lamp, is defective.
The FAA agrees that there will be incidents where an airplane will
be temporarily grounded from daylight operations until a failure in the
light system can be repaired. However, the additional safety cue
provided to pilots by operating anticollision light systems will
outweigh the cost of maintaining the light system.
The proposed revision of Sec. 91.209 is adopted as proposed.
Regulatory Evaluation, Regulatory Flexibility Determination, and Trade
Impact Assessment
Changes to Federal regulations must undergo several economic
analyses. First, Executive Order 12866 directs that Federal agencies
promulgate new regulations or modify existing regulations only if the
potential benefits to society justify its costs. Second, the Regulatory
Flexibility Act of 1980 requires agencies to analyze the economic
effect of regulatory changes on small entities. Finally, the Office of
Management and Budget directs agencies to assess the effects of
regulatory changes on international trade. In conducting these
assessments, the FAA has determined that this rule: (1) Will generate
benefits exceeding its costs and is ``significant'' as defined in the
Executive Order 12866; (2) is ``significant'' as defined in DOT's
Policies and Procedures; (3) will not have a significant impact on a
substantial number of small entities; and (4) will not constitute a
barrier to international trade. These analyses, available in the
docket, are summarized below.
Regulatory Evaluation Summary
This section summarizes the costs and benefits of each provision of
the final rule. Many of the provisions in the final rule will impose
either no cost or a negligible cost. Such provisions are typically
administrative, editorial, clarifying, relieving, or conforming in
nature. In addition, the FAA holds that certain provisions have a
potential safety benefit that can be achieved with no incremental cost,
due primarily to the fact that this rule will apply to future
certificated airplanes and retrofitting will not be required. All
provisions of the final rule, including those with no or negligible
costs, are summarized below. Only those provisions with non-negligible
costs are further evaluated in the section that follows. It should be
noted that the various cost impacts are not additive since the
individual provisions often apply to different airplane types included
under part 23. The reader is directed to the full regulatory evaluation
in the docket for additional information.
------------------------------------------------------------------------
Section Incremental cost Benefit
------------------------------------------------------------------------
Section 23.677 Trim systems Negligible.......... Safety.
Section 23.691 Artificial None................ Administrative.
stall barrier system.
Section 23.697 Wing flap $480 per Nominal safety and
controls. certification and relief.
$100 per airplane
for affected
airplanes.
Section 23.701 Flap None................ Clarification.
interconnection.
Section 23.703 Takeoff $240 per Nominal safety and
warning system. certification for relief.
evaluation. Where
necessary, $5,120
per certification,
$1,000 per airplane
and $100 per year.
Section 23.723 Shock None................ Editorial.
absorption tests.
Section 23.729 Landing gear para. (e). None..... Clarification.
extension and retraction
system.
para. (g). Minor; general
Negligible, general practice.
practice.
Section 23.735 Brakes...... para. (a). None..... Editorial
clarification.
para. (c). None..... Administrative.
para. (e). $240 per Minor safety.
certification.
Section 23.745 Nose/Tail None................ Minor. Avoids
wheel steering. special conditions.
Section 23.775 Windshields para. (a). None..... Relieving.
and windows.
para. (c). None..... Clarification.
[[Page 5159]]
para. (h). Up to Safety.
$350,000 per
certification.
Section 23.783 Doors....... para. (b). None..... Minor safety.
para. (g). $25 per Safety.
airplane.
Section 23.785 Seats, None................ Editorial
births, litters, safety organization.
belts and shoulder
harnesses.
Section 23.787 Baggage and para. (a)$1 per Minor safety.
cargo compartments. airplane.
para. (b). $60 per Safety.
certification and
up to $100 per
airplane.
para. (c). None..... Clarification.
Section 23.791 Passenger $60 per Safety.
information signs. clarification, up
to $200 per
airplane, and a
negligible effect
on operating costs.
Section 23.807 Emergency para. (a)(4). Minor safety.
exists. Expected negligible.
para. (b) and Clarification and
(b)(5). None. editorial.
para. (b)(6). Where Safety.
chosen, $10,000 per
certification and
$500 per airplane.
Section 23.841 Pressurized $1,000 per Safety.
cabins. certification and
$2,000 per airplane.
Section 23.853 Passenger None................ Editorial.
and crew compartment
interiors.
Section 23.855 Cargo and para. (a). Less than Minor safety.
baggage compartment fire $40 per airplane.
protection.
para. (b). Less than Safety.
$200 per airplane.
para. (c). Safety.
Potentially as high
as $1,800 per
certification,
$4,550 per
airplane, and $100
per year.
Section 23.867 Electrical None................ Editorial.
bonding and protection
against lightning and
static electricity.
Section 23.1303 Flight and Introduction. None.. Clarification.
navigation instruments.
para. (d). Safety.
Negligible.
para. (e)(2). None.. Minor safety.
para. (f). None..... Minor safety.
para. (g)(1). Up to Safety.
$2,000 per airplane.
para. (g)(2). None.. Minor safety.
para. (g)(3). Up to Safety.
$3,600 per
certification and
$7,000 per airplane.
Section 23.1307 None................ Editorial and
Miscellaneous equipment. conforming.
Section 23.1309 Equipment, None................ Minor safety.
systems, and installations.
Section 23.1311 Electronic None................ Clarifying,
display instrument systems. editorial, and
relieving.
Section 23.1321 Arrangement None................ Minor safety.
and visibility.
Section 23.1323 Airspeed None................ Minor safety.
indicating system.
Section 23.1325 Static None................ Relieving.
pressure system.
Section 23.1326 Pitot heat $2,800 per Safety.
indication system. certification,
$1,600 per airplane.
Section 23.1329 Automatic None................ Clarifying.
pilot system.
Section 23.1337 Powerplant Heading and para. Clarifying,
instruments installation. (b). None. relieving.
para. (b)(4). Safety.
Negligible.
Section 23.1351 General.... para. (b). None..... Administrative.
para. (c)(3). None.. Clarifying.
para. (f). None..... Minor safety.
Section 23.1353 Storage Where necessary, up Safety.
battery design and to $30 per five
installation. years capital, up
to $10 per year
operating, and $600
per certification.
Section 23.1359 Electrical para. (a). None..... Clarifying emphasis.
system fire protection.
para. (b). Clarifying.
Negligible.
para. (c). $240 per Safety.
certification.
Section 23.1361 Master None................ Editorial.
switch arrangement.
Section 23.1365 Electrical para. (b). None..... Conforming
cables and equipment. editorial.
para. (d). $4,400 Safety.
per certification
and $100 per
airplane.
para. (e). None..... Minor safety.
para. (f). Minor safety.
Negligible.
Section 23.1383 Taxi and None................ Editorial update.
landing lights.
Section 23.1401 Where necessary, Safety.
Anticollision light system. $2,400 per
certification and
$1,600 per airplane.
Section 23.1431 Electronic para. (c). Where Safety.
equipment. necessary, up to
$1,200 per
certification and
$1,600 per airplane.
para. (d). Minor safety.
Negligible.
Included above.
para. (e). None or Safety.
negligible.
[[Page 5160]]
Section 23.1435 Hydraulic None................ Clarifying.
systems.
Section 23.1447 Equipment para. (a)(4). Up to Safety.
standards for oxygen $2,000 per airplane.
dispensing units.
para.'s (d) and (e). Minor safety.
None.
Section 23.1451 Fire None................ Safety.
protection for oxygen
equipment.
Section 23.1453 Protection $960 per Safety.
of oxygen equipment from certification.
rupture.
Section 23.1461 Equipment None................ Clarifying.
containing high energy
rotors.
Appendix F to Part 23--Test None. Considered Minor safety.
Procedure. above.
Section 91.205 Powered None................ Safety, considered
civil aircraft with above.
standard category U.S.
airworthiness certificates:
Instrument and equipment
requirements.
Section 91.209 Aircraft $25 per year per Safety, considered
lights. airplane. above.
------------------------------------------------------------------------
Evaluation of Provisions With Non-Negligible Projected Costs
This section describes and evaluates those provisions of the rule
that are expected to impose costs that are not negligible.
Section 23.697 Wing Flap Controls
New Sec. 23.697(c) provides safety standards for the wing flap
control lever installed in airplanes that use wing flap settings other
than fully retracted when showing compliance with Sec. 23.145. The FAA
estimates that an aerospace engineer could design the flap control
lever to meet the requirement in 8 hours at a burdened rate of $60 per
hour, totalling $480 per certification. The control lever itself would
impose an incremental cost, including installation, of approximately
$100 per airplane.
The nominal benefits of this provision will derive from the
increased safety afforded the pilot in positively selecting the proper
flap setting to maintain longitudinal control. In fact, if a flap
position other than fully retracted were needed to maintain
longitudinal control: (1) That position would be necessary to prevent
an unsafe condition, (2) the airplane would not be certificated under
that design, and (3) the airplane would have to be redesigned so that
intermediate flap positions would not be needed for control. Paragraph
(c) will allow the identification of an intermediate flap position and
the positive means of selecting that position. This alternative would
rectify the unsafe condition without requiring the manufacturer to
redesign the airplane.
Section 23.703 Takeoff Warning System
This new section requires that a takeoff warning system on some
commuter category airplanes. The requirement will apply if a flight
evaluation shows that an unsafe takeoff condition would result when
lift devices on longitudinal trim devices are set to any position
outside the approved takeoff range. If the evaluation shows that no
unsafe condition could result at any setting of these devices, a
takeoff warning system will not be required. For those airplanes on
which a warning system must be installed, the rule will provide
requirements for the installation of the system.
The FAA estimates that an evaluation to determine whether a takeoff
warning system is needed will cost $240 (4 hours of engineering at a
burdened rate of $60 per hour). Where needed, the integration design of
a warning system will cost $2,400 (40 hours at $60 per hour). In
addition, an incremental 4 hours of flight testing at a cost of $2,720
($500 per hour for two test pilots and $180 per hour for fuel) will be
needed to demonstrate the system's performance. The FAA estimates that
the system, including acquisition, wiring, micro switches, and labor,
will add approximately $1,000 to the cost of each airplane required to
have one. Maintenance of such a system will cost approximately $100 per
year.
The nominal benefit of this provision derive from the increased
safety provided by the takeoff warning system that would activate
whenever lift or longitudinal trim devices are not set within their
approved takeoff ranges. If an evaluation showed that positions of the
lift or longitudinal trim devices could create an unsafe condition on
takeoff, the manufacturer is required, under existing regulations, to
redesign the devices so that the unsafe positions could not be
obtained. The new section will provide relief by allowing the applicant
to install a warning system rather than redesigning the trim device(s).
Section 23.735 Brakes
New Sec. 23.735(e), applicable to commuter category airplanes,
requires establishing the minimum rejected takeoff brake kinetic energy
capacity rating of each main wheel brake assembly. Based on the
operating experience of airplanes used in passenger-carrying
operations, existing Sec. 23.45 requires the determination of the
accelerate-stop distance for commuter category airplanes. New
Sec. 23.735 is needed to ensure that the brakes will perform safely
under accelerate-stop conditions.
Under the final rule, manufacturers of commuter airplanes may
determine the kinetic energy absorption requirements either through a
conservation, rational analysis of the sequence of events expected
during a rejected takeoff, or by using the formula in new
Sec. 23.735(e)(2). The FAA estimates that the determination will cost
$240, based on four hours of engineering at a burdened rate of $60 per
hour. The potential benefits of the requirement derive from the added
safety that will be provided by establishing beforehand the minimum
necessity kinetic energy capacity rating of each main wheel brake
assembly under rejected takeoff conditions.
Section 23.775 Windshields and Windows
Introductory text and paragraph (h)(1) are added to require that
commuter category windshield panes that are directly in front of the
pilots be able to withstand the impact of a two pound bird at maximum
approach flap speed. By requiring full protection against the strike of
a two-pound bird at approach speed, additional protection will also be
provided if the airplane strikes a larger bird or strikes a bird at a
higher speed.
New Sec. 23.775(h)(2) further requires the panels of the windshield
to be so
[[Page 5161]]
arranged that, if one is damaged, other panels will remain to provide
visibility for continuous safe flight and landing.
The potential cost of Sec. 23.775(h) will vary depending on
circumstances of the affected manufacturer. Industry sources estimate
that the total nonrecurring cost per certification will range from
$250,000 to $350,000, consisting of: (1) Up to $200,000 for a bird
strike test article (``bird gun'') if the manufacturer does not have
one; and (2) up to $150,000 of time and materials cost for the actual
testing.
A manufacturer that has a bird strike test article will not incur
additional capital test costs. Most manufacturers will incur up to
$150,000 in time and materials costs for the actual testing, but even
these costs could be mitigated by the existing need of most
manufacturers to perform such tests for export sales to JAA member
countries.
Industry sources estimate that there will be no identifiable
increment in design or tooling costs since the windshield is an
integral part of the initial design. Similarly, little or no recurring
costs per airplane (incremental materials, installation, or weight) are
projected since it is reasonable to assume that the pressure load, as
compared to bird strike resistance, will be the controlling factor in
windshield design strength.
The benefit of the revision is the incremental protection against
bird strikes that would be afforded to commuter category airplanes. The
FAA has reviewed International Civil Aviation Organization (ICAO) data
on bird strikes that occurred on member country airplanes weighing
19,000 or fewer pounds from 1981 through 1989. These data shows that
approximately 550 strikes occurred and that one out of seven hits the
windshield. The data show that:
1. Almost 52 percent of the strikes occurred at altitudes of less
than 100 feet, and 26.7 percent occurred between 101 and 1000 feet.
2. Eighty-five percent of the strikes occurred at airspeeds of 150
knots or less.
3. Where bird types were reported, 27.6 percent of strikes involved
small birds and 58.6 involved medium size birds (2 pounds or less).
4. Incidents where the airplane was damaged showed that 16.9
percent resulted from small bird strikes and 64 percent resulted from
medium size bird strikes.
These data show that most bird strikes occur at takeoff and landing
airspeeds, and that birds weighing two pounds or less are struck most
often. The standards of the final rule are based on these statistics.
Few fatalities and injuries resulted from the bird strikes reported in
the ICAO data. Similarly, a review of NTSB accident records between
1982 and 1992 revealed no U.S. accidents resulting from bird strikes to
the windshields of commuter category airplanes. As a result, the FAA
cannot justify this provision solely on the basis of historical
accidents. Instead, the standards are based on the expert
recommendations of the ARAC. It is also noted that this standard will
be applied to JAA certifications and that U.S. manufacturers wishing to
export to JAA countries will be required to meet the standard.
Section 23.783 Doors
New paragraph (g) requires that the locks on lavatory doors, if
installed, be designed so that they will not trap occupants. Lavatory
door locks used in transport category airplanes (see Sec. 25.783) meet
the requirements of this rule. The FAA estimates that the incremental
cost of this provision would be no more than $25 per lock. The rule
will reduce the likelihood that occupants would be trapped in a locked
lavatory, both in emergency and non-emergency situations.
Section 23.787 Baggage and Cargo Compartments
The final rule extends to normal, utility, and acrobatic airplanes
the existing commuter requirement to prevent baggage from hazardous
shifting. The FAA es
FR Doc. 96-2083 Airworthiness Standards; Systems and Equipment Rules Based on European Joint Aviation Requirements
timates that an aerospace engineer can analyze the
subject loads that would need to be constrained in 1 hour, at a
burdened cost of $60 per hour. Tiedowns will cost approximately $50 per
baggage compartment, or no more than $100 per airplane. These
additional costs apply to normal, utility, and acrobatic airplanes
since commuter category airplanes are already subject to the
requirement under the existing rule.
The potential benefits of the provision include the reduced
likelihood: (1) That baggage compartments would be overloaded, (2) that
stowed baggage would shift dangerously, and (3) that essential co-
located equipment or wiring would be damaged.
Section 23.791 Passenger Information Signs
This new section requires at least one illuminated sign notifying
all passengers when seat belts should be fastened. The requirement will
apply only to airplanes where flightcrew members cannot observe
occupant seats or where the flightcrew compartment is separated from
the passenger compartment. The signs will have to be legible to all
seated passengers and to be operable from a crewmember station.
The FAA estimates that an aerospace engineer could design the
required sign in 1 hour, at a burdened rate of $60 per hour. The sign
would cost approximately $200 per airplane, including parts and
installation. Maintenance costs for bulb replacement will be
negligible. The weight penalty associated with the light system would
also be minor (no more than 2 pounds).
The safety benefits of the change will derive from the increased
likelihood that passengers will know when their seat belts should be
fastened.
Section 23.807 Emergency Exits
New Sec. 23.807(a)(4) provides the same hazard protection for a
person using an emergency exit as that provided by revised
Sec. 23.783(b) for a person who uses a passenger door. Emergency exits
will not be allowed to be located with respect to a propeller disk or
any other hazard in a manner that will endanger persons using that
exit.
The FAA holds that no incremental cost will be incurred to meet the
standards of the provision for newly certificated airplanes. No
comments to the NPRM were received on the potential costs and methods
of compliance that manufacturers would choose to comply with this
requirement.
Section 23.807(b)(5) revises the current egress requirements for
acrobatic airplanes. Section 23.807(b)(6) establishes similar egress
standards for utility category airplanes that are certificated for
spinning. Industry sources estimate that an aerobatic, quick-release
door will cost an incremental $10,000 in engineering design per
affected airplane model and an additional $500 per production airplane.
Little or no additional weight is expected. These costs will apply only
in cases where the manufacturer determines that the marketplace return
of a combination type certificate would outweigh the additional costs
of design and production.
Section 23.841 Pressurized Cabins
The revision to Sec. 23.841(a) extends the cabin pressure
requirements of current paragraph (a), which apply to airplanes
certificated for operation above 31,000 feet, to airplanes certificated
for operation above 25,000 feet. Current part 25, JAR 25, and proposed
JAR 23 include the same requirement. This revision is intended to
protect airplane occupants if a malfunction occurs at altitudes where
symptoms of hypoxia occur, usually above 25,000 feet.
[[Page 5162]]
For airplanes that will be certificated for maximum altitude
operation between 25,000 feet and 31,000 feet, the provision requires
two additional pressure altitude regulators and associated plumbing.
Industry sources estimate that the requirement will cost an incremental
$1,000 in engineering design per affected airplane model and $2,000 per
production airplane. Any additional weight will be negligible.
The benefits of the proposal derive from the incremental protection
against hypoxia afforded to occupants of airplanes certificated for
maximum altitudes between 25,000 and 31,000 feet. Due to the increasing
use of turbine engines, more part 23 airplanes are likely to be
approved for operation above 25,000 feet. In the absence of this rule,
an increasing number of occupants would be exposed to the potential for
harm in the event of a failure or malfunction of the pressure system on
these airplanes.
Section 23.855 Cargo and Baggage Compartment Fire Protection
Paragraph (a) requires all sources of heat within each cargo and
baggage compartment that are capable of igniting the compartment
contents to be shielded and insulated to prevent such ignition.
Existing Sec. 23.787(f) requires that cargo compartment lamps be
installed so as to prevent contact between the lamp bulb and cargo. The
final rule will clarify and extend this provision to include all
sources of heat for baggage as well as cargo compartments.
Lights and (rarely) heaters for pets are typically the only sources
of heat located in a baggage or cargo compartment. A wire cage, costing
no more than $20, around the heat source would meet these requirements.
The FAA estimates that the total cost of compliance per airplane will
be no more than $40 in those rare cases where such protection would not
have been provided anyway. The benefit of the proposed provision is a
reduction in the possibility of fire caused by the ignition of
compartment contents by lights or heaters.
Paragraph (b) requires cargo and baggage compartments to be
constructed of materials that meet the appropriate provisions of
Sec. 23.853(d)(3). Currently these requirements apply to commuter
category airplanes and to the materials used in the compartments of
these airplanes. The new requirement extends this applicability to the
cargo and baggage compartments of all part 23 airplanes. In effect, the
new requirement requires materials that are self-extinguishing, rather
than flame resistant, as currently required under Sec. 23.787(d).
Information provided by manufacturers shows that materials that
meet self-extinguishing flame requirements are available at a slightly
higher cost than materials that meet only flame resistant requirements.
The FAA conservatively estimates that the incremental costs of
complying with Sec. 23.855(b) will be less than $200 per airplane. The
safety benefits of this provision will be an increase in cargo and
baggage compartment fire protection.
New paragraph (c) adds new fire protection requirements for cargo
and baggage compartments for commuter category airplanes. The rule
requires one of the following three alternatives:
(1) The compartment must be located where pilots seated at their
duty station would easily discover the fire, or the compartment must be
equipped with a smoke or fire detector system to provide a warning at
the pilot's station. The compartment must also be accessible for fire
extinguisher application.
(2) The compartment may be inaccessible, but must be equipped with
a fire detector system that provides a warning at the pilot's station,
and the compartment must have ceiling and sidewall floor panels
constructed of materials that have been subjected to and meet the
vertical self-extinguishing tests of appendix F to part 23.
(3) The compartment must be constructed and sealed to contain any
fire.
The FAA cannot predict the designs of cargo and baggage
compartments for future airplanes. If manufacturers choose to use smoke
detectors, however, no more than 2 smoke detectors would be required
per airplane. An aerospace engineer can design the smoke detector
system in approximately 30 hours at a burdened rate of $60 per hour,
for a total cost of $1,800 per certification. Two detectors, including
wiring and installation, are estimated to cost about $4,550.
Maintenance costs for the smoke detectors will cost approximately $100
per year.
Materials that meet the vertical self-extinguishing tests of
appendix F (alternative 2 in the discussion above) will result in
incremental costs of less than $200 per airplane. For alternative 3,
the FAA estimates that it will cost $500 to construct a sealed
compartment, or a total of $1,000 for 2 compartments, if the
manufacturer chooses that method of complying with the proposed
requirement.
Irrespective of the individual compliance method, the benefits of
the provision will come from the increased likelihood that a cargo or
baggage compartment fire could either be extinguished or contained.
Section 23.1303 Flight and Navigation Instruments
Revised Sec. 23.1303(d) adds the requirement for a free air
temperature indicator for those airplanes whose performance must be
based on weight, altitude, and temperature. This requirement already
applies to turbine-powered airplanes. The final rule extends the
requirement to reciprocating engine-powered airplanes of more than
6,000 pounds. Manufacturers currently include free air temperature
indicators as standard equipment on all part 23 airplanes, and would
continue to do so in future designs in the absence of the requirement.
Since the provision formalizes current practice, any costs would be
negligible. Benefits will accrue from the requirement that the
information necessary to determine the performance envelope of the
airplane be available to the pilot.
New Sec. 23.1303(g) identifies specific instruments, and the limits
of those instruments, required for commuter category airplanes. New
Sec. 23.1303(g)(1) states that if airspeed limitations vary with
altitude, the airspeed indicators must show the variation of the
maximum operating limit speed (VMO) with altitude. Industry
sources indicate that an airspeed indicator with a VMO ``pointer''
would cost $1,000 more than one without. Since two airspeed indicators
are required on commuter airplanes, the incremental cost of this
requirement will be $2,000 per commuter category airplane produced. The
potential safety benefit of the requirement derives from the
requirement that the information necessary to determine the maximum
operating limit speed be available at all altitudes.
New Sec. 23.1303(g)(3) requires (for commuter category IFR-approved
airplanes with passenger seating configurations of 10 or more) a third,
independent, attitude indicator (AI). Industry sources estimate that an
aerospace engineer can design and document a third attitude instrument
system in 100 hours at a burdened rate of $60 per hour, totalling
$6,000 per certification. It is estimated that an AI will cost
approximately $8,000, including a standby battery, and that the
installation will cost $2,200 for 40 hours of a mechanic's time at a
burdened rate of $55 per hour. However, Sec. 23.1311(a)(5), discussed
below, deletes the requirement for a rate-of-turn indicator when an
independent attitude indicator is installed. The costs
[[Page 5163]]
associated with a rate-of-turn indicator include: 40 hours of design
and documentation costs, $1,000 per indicator, and 40 hours of
installation. Therefore, the incremental cost for an IFR-approved
airplane with a passenger seating capacity of 10 or more will be $3,600
per certification for 60 hours of engineering (100 hours for the AI,
minus 40 hours for the rate-of-turn indicator); and $7,000 per airplane
for the instrument ($8,000 for the AI, minus $1,000 for the rate-of-
turn indicator); and no additional cost for the installation (40 hours
for the AI, minus 40 hours for the rate-of-turn indicator).
The potential safety benefits of a third, independent attitude
indicator derive from the reduced potential for erroneous attitude
information. Currently, two attitude instruments are required for a ten
passenger, IFR-approved commuter category airplane. Service experience
has shown that a failure can occur whereby an attitude indicator can
appear to be working when it is actually providing incorrect
information. During such a failure, pilots may have difficulty
determining which instrument to follow, and hazardous flight attitudes
may result. A third attitude indicator will allow the crew to retain
reliable attitude information even in cases where one instrument is not
operating correctly.
Section 23.1326 Pitot Heat Indication System
New Sec. 23.1326 requires the installation of a pitot tube heat
indicating system on those airplanes required to be equipped with a
heated pitot tube. Heated pitot tubes ensure that moisture will not
freeze in the tube and block or partially block the airspeed system.
A pitot heat indicating system, including an in-line current
sensor, panel light, and associated wiring, costs approximately $500.
According to industry sources, an aerospace engineer can design and
document such a system in 20 hours at a burdened rate of $60 per hour,
totalling $1,200. A mechanic can install the system in 20 hours at a
burdened rate of $55 per hour, totalling $1,100. The estimated non-
recurring cost per certification, therefore, will total $2,800 ($1,200
for design, $500 for the certification airplane's indicator, and $1,100
for installation of that indicator). The estimated cost per production
airplane will be $1,600 ($500 for the system and $1,100 for
installation).
A pitot heat indicating system can advise the pilots of any
inoperative heating element in the pitot tube and that subsequent
inaccuracies could result. The provision will reduce the likelihood
that pilots would rely on inaccurate airspeed information resulting
from a blocked or partially blocked pitot tube.
Section 23.1353 Storage Battery Design and Installation
New Sec. 23.1353(h) requires that, in the event of a complete loss
of the primary electrical power generating system, airplane battery
capacity must be sufficient to supply at least 30 minutes of electrical
power to those loads essential to the continued safe flight and landing
of the airplane.
In some cases, manufacturers may need to install larger batteries
with greater capacities to comply with the requirements. The FAA
estimates that the size and capacity of a larger battery will add no
more than a few pounds (incremental operating costs of less than $10
per year) and $20 to $30 of additional cost for the battery.
On some airplanes, a ``load shedding'' procedure, where the pilot
would sequentially turn off certain equipment, could be required either
in place of or in addition to a larger battery. The procedure would be
provided in the pilot's operating handbook (POH). The FAA estimates
that an aerospace engineer can establish a load shedding procedure in
10 hours at a burdened rate of $60 per hour, for a total cost of $600
per affected certification.
Irrespective of the method of compliance, the provision will
increase the likelihood that sufficient electrical power will be
available to safely land the airplane in the event of an electrical
generating system failure.
Section 23.1359 Electrical System Fire Protection
Revised Sec. 23.1359(c) provides burn criteria for electrical wire
and cables. A revision to appendix F to part 23 adds appropriate wire
testing criteria. Demonstrating and documenting that electrical wires
and cables meet the requirements of this provision will take an
aerospace engineer approximately 4 hours at a burdened rate of $60 per
hour, for a total cost of $240 per certification. The requirement and
testing criteria increase the likelihood that necessary wires and
cables will continue to function in the event of a fire.
Section 23.1365 Electrical Cables and Equipment
Section 23.1365(d) adds a requirement for the identification of
electrical cables, terminals, and connectors. Different colored wires
and/or tags could be used in conjunction with a wiring diagram to
identify the cables, terminals, and connectors. The FAA estimates that
a draftsman can design and document this identification system in 80
hours at a burdened rate of $55 per hour, a total of $4,400 per
certification. Incremental installation costs will be approximately
$100 per airplane.
The increasing use of electrical systems in part 23 airplanes has
added to the difficulty of wiring installation. The requirement for
cable identification will increase the likelihood that cables are
correctly installed initially and will be correctly reinstalled as part
of later maintenance or modification.
Section 23.1401 Anticollision Light System
The final rule revises Sec. 13.1401 to require the installation of
an anticollision light system on all part 23 airplanes. Existing
Sec. 23.1401 requires an anticollision light system only if
certification for night operations is requested. Many manufacturers
currently install anticollision light systems on all airplanes they
produce.
Industry sources estimate that an aerospace engineer can design and
document an anticollision light system in 40 hours at a burdened rate
of $60 per hour, for a total of $2,400 per affected certification. The
system will cost $500 and will take a mechanic approximately 20 hours
to install at a burdened rate of $55 per hour, a total of $1,600 per
affected airplane ($500 + (20 hours x $55 per hour) = $1,600). The
weight penalty will be negligible. Only those future models that would
not otherwise have anticollision light systems will actually incur
incremental costs as a result of this provision.
The increasing speeds resulting from improved technology,
especially turbine engines, warrant the use of anticollision lights for
day operations as well as night. The reports of midair collisions for
1984 through 1990 document that 269 aircraft were involved in midair
collisions in which 108 fatalities occurred. After data were filtered
(to account for night operations, IFR conditions, and aircraft not
affected by this rule), 167 airplanes were involved in collisions that
occurred in daytime VFR conditions. The reports do not reveal whether
the airplanes were using anticollision lights at the time of the
accidents.
The FAA holds that requiring the installation of anticollision
lights on all newly certificated airplanes, and requiring their use
during day operations (revised Sec. 91.209), will reduce the number of
daylight midair accidents. Even if the requirement were
[[Page 5164]]
only 25 percent effective, the accident history indicates that
approximately 17 fatalities could be avoided during a similar 6-year
period.
Section 23.1431 Electronic Equipment
The final rule adds three new paragraphs to Sec. 23.1431. New
paragraph (c) states that airplanes required to be operated by more
than one flightcrew member must be evaluated to determine if the
flightcrew members, when they are seated at their duty stations, can
converse without difficulty under the actual cockpit noise conditions
when the airplane is being operated. If the required evaluation shows
that the noise level does not impair conversation, no further action
would be required. If the evaluation shows that conversation would be
difficult, however, an intercommunication system will be required.
The FAA estimates that an evaluation of cockpit noise could be
conducted in conjunction with other certification testing, therefore,
no incremental costs are associated with the evaluation. An aerospace
engineer could design an intercom system in 20 hours at a burdened rate
of $60 per hour, for a total of $1,200 per affected certification. The
FAA estimates that the addition of an intercom system will cost
approximately $500 per airplane. A mechanic could install the system in
approximately 20 hours at a burdened rate of $55 per hour. The total
incremental production cost for an affected airplane, therefore, will
be $1,600 ($500 + (20 hours x $55 per hour)).
New paragraph (d) requires that, if the communication equipment
that is installed includes any means of switching from the receive mode
to the transmit mode, the equipment must use ``off-on'' transmitter
switching that turns the transmitter off when it is not being used. The
cost of this feature is included in the $500 cost of the intercom,
described above.
NTSB investigations of at least two commuter accidents determined
that excessive cockpit noise levels probably adversely affected the
ability of the flight crews to communicate. (Bar Harbor Airlines,
Flight 1808, August 25, 1985, 8 fatalities; and Henson Airlines, Flight
1517, September 23, 1985, 14 fatalities.) As a result, the Board
recommended (Recommendation No. A-86-113) that the FAA require the
installation and use of crew interphone systems in the cockpit of
airplanes operating under part 135. The benefit of the new requirement
derives from the increased likelihood that flightcrew members will be
able to converse without difficulty and that the safety hazard of
miscommunication will be reduced.
Section 23.1447 Equipment Standards for Oxygen Dispensing Units
New Sec. 23.1447(a)(4) requires that if radio equipment is
installed in an airplane, flightcrew oxygen dispensing units must be
designed to allow use of the communication equipment when oxygen is
being used.
Industry sources estimate that an oxygen mask with an integral
microphone costs $1,000 more than an oxygen mask without a microphone.
The costs per affected airplane, therefore, will be $2,000 for two
masks. The benefit of the requirement is that it will allow flightcrew
communication under all operating conditions, including operations when
oxygen is required.
Section 23.1453 Protection of Oxygen Equipment From Rupture
This new section clarifies the rupture protection needed for oxygen
system installation. Rupture protection for oxygen systems is currently
required by the application of the structures load requirements of part
23. The addition of Sec. 23.1453(a) clarifies the application of these
load requirements and identifies the need to consider maximum
temperatures and pressures that may be present. Section 23.1453(b)
identifies the protection to be provided for oxygen pressure sources
and the lines that connect these sources to the oxygen system shutoff
valves.
Industry sources estimate that an aerospace engineer could analyze
and document the loads on each element of the oxygen system in 16 hours
at a burdened rate of $60 per hour, for a total cost of $960. The
routing of oxygen pressure sources and lines to protect them from
unsafe temperatures and crash landings would be part of an airplane's
basic design and will not impose incremental costs.
Section 91.209 Aircraft Lights
New Sec. 91.209(b) requires airplanes equipped with an
anticollision light system to operate those lights during all
operations, including daytime VFR.
The incremental cost of this provision consists of light bulb
replacement. The FAA estimates that a light bulb for an anticollision
light system costs approximately $50 and that this provision would
necessitate an incremental bulb replacement every two years.
Accordingly, the cost is projected to equal $25 per year, per affected
operating airplane. The FAA holds that any grounding of an airplane due
to a faulty bulb or light system will be rare and quickly corrected.
The cost of such grounding will be negligible, when compared with the
safety benefits of operating anticollision light systems.
In summary, the FAA holds that the benefits of the rule, though not
directly quantifiable, will exceed the expected costs. Each of the
provisions, as well as the entire final rule, will be cost beneficial.
Regulatory Flexibility Determination
The Regulatory Flexibility Act of 1980 (RFA) was enacted by
Congress to ensure that small entities are not unnecessarily or
disproportionately burdened by Government regulations. The RFA requires
a Regulatory Flexibility Analysis if a proposed or final rule would
have a significant economic impact, either detrimental or beneficial,
on a substantial number of small entities. FAA Order 2100.14A,
Regulatory Flexibility Criteria and Guidance, establishes threshold
cost values and small entity size standards for complying with RFA
review requirements in FAA rulemaking actions. The Order defines
``small entities'' in terms of thresholds, ``significant economic
impact'' in terms of annualized costs thresholds, and ``substantial
number'' as a number which is not less than eleven and which is more
than one-third of the small entities subject to the proposed or final
rule.
Order 2100.14A specifies a size threshold for classification as a
small manufacturer as 75 or fewer employees. There are approximately 8
small part 23 airplane manufacturers. The annualized cost threshold for
significant impact, expressed in 1995 dollars, is $18,700. No part 23
airplane manufacturer's annualized cost will exceed this cost
threshold.
Order 2100.14A specifies a size threshold for classification as a
small operator as 9 aircraft owned. The annualized cost threshold for
significant impact, expressed in 1995 dollars, are $67,000 for air
carriers whose fleet has a seating capacity of fewer than 60 and $4,700
for an unscheduled operator. No part 23 airplane operator's annualized
cost will exceed this cost threshold.
The amendments in the final rule, therefore, will not have a
significant economic impact on a substantial number of small entities.
Trade Impact Assessment
The rule will not constitute a barrier to international trade,
including the export of U.S. airplanes to foreign countries and the
import of foreign airplanes into the United States. Instead,
[[Page 5165]]
the systems airworthiness standards have been harmonized with those of
the Joint Aviation Authorities and will result in cost savings to
manufacturers in the United States and in JAA member countries.
Federalism Implications
The regulations adopted herein 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 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.
Conclusion
The FAA is revising the airworthiness standards to provide systems
and equipment standards for normal, utility, acrobatic, and commuter
category airplanes that are substantively the same as the standards
that will be proposed for the same category airplanes by the Joint
Aviation Authorities in Europe. The revision will reduce the regulatory
burden on the United States and European airplane manufacturers by
relieving them of the need to show compliance with different standards
each time they seek certification approval of an airplane in the United
States or in a country that is a member of the JAA.
For the reasons discussed in the preamble, and based on the
findings in the Regulatory Evaluation, the FAA has determined that this
regulation is significant under Executive Order 12866. In addition, the
FAA certifies that this regulation, will not have a significant
economic impact, positive or negative, on a substantial number of small
entities under the criteria of the Regulatory Flexibility Act. This
final rule is considered significant under DOT Regulatory Policies and
Procedures (44 FR 11034, February 26, 1979). A regulatory evaluation of
the rule has been placed in the docket. A copy may be obtained by
contacting the person identified under FOR FURTHER INFORMATION CONTACT.
List of Subjects
14 CFR Part 23
Aircraft, Aviation safety, Signs and symbols.
14 CFR Part 91
Aircraft, Aviation safety, Safety.
The Amendment
In consideration of the foregoing, the Federal Aviation
Administration amends 14 CFR parts 23 and 91 as follows:
PART 23--AIRWORTHINESS STANDARDS: NORMAL, UTILITY, ACROBATIC, AND
COMMUTER CATEGORY AIRPLANES.
1. The authority citation for part 23 continues to read as follows:
Authority: 49 U.S.C. 106(g), 40113, 44701, 44702, 44704.
2. Section 23.677(a) is revised to read as follows:
Sec. 23.677 Trim systems.
(a) Proper precautions must be taken to prevent inadvertent,
improper, or abrupt trim tab operation. There must be means near the
trim control to indicate to the pilot the direction of trim control
movement relative to airplane motion. In addition, there must be means
to indicate to the pilot the position of the trim device with respect
to both the range of adjustment and, in the case of lateral and
directional trim, the neutral position. This means must be visible to
the pilot and must be located and designed to prevent confusion. The
pitch trim indicator must be clearly marked with a position or range
within which it has been demonstrated that take-off is safe for all
center of gravity positions and each flap position approved for
takeoff.
* * * * *
3. A new Sec. 23.691 is added to read as follows:
Sec. 23.691 Artificial stall barrier system.
If the function of an artificial stall barrier, for example, stick
pusher, is used to show compliance with Sec. 23.201(c), the system must
comply with the following:
(a) With the system adjusted for operation, the plus and minus
airspeeds at which downward pitching control will be provided must be
established.
(b) Considering the plus and minus airspeed tolerances established
by paragraph (a) of this section, an airspeed must be selected for the
activation of the downward pitching control that provides a safe margin
above any airspeed at which any unsatisfactory stall characteristics
occur.
(c) In addition to the stall warning required Sec. 23.07, a warning
that is clearly distinguishable to the pilot under all expected flight
conditions without requiring the pilot's attention, must be provided
for faults that would prevent the system from providing the required
pitching motion.
(d) Each system must be designed so that the artificial stall
barrier can be quickly and positively disengaged by the pilots to
prevent unwanted downward pitching of the airplane by a quick release
(emergency) control that meets the requirements of Sec. 23.1329(b).
(e) A preflight check of the complete system must be established
and the procedure for this check made available in the Airplane Flight
Manual (AFM). Preflight checks that are critical to the safety of the
airplane must be included in the limitations section of the AFM.
(f) For those airplanes whose design includes an autopilot system:
(1) A quick release (emergency) control installed in accordance
with Sec. 23.1329(b) may be used to meet the requirements of paragraph
(d), of this section, and
(2) The pitch servo for that system may be used to provide the
stall downward pitching motion.
(g) In showing compliance with Sec. 23.1309, the system must be
evaluated to determine the effect that any announced or unannounced
failure may have on the continued safe flight and landing of the
airplane or the ability of the crew to cope with any adverse conditions
that may result from such failures. This evaluation must consider the
hazards that would result from the airplane's flight characteristics if
the system was not provided, and the hazard that may result from
unwanted downward pitching motion, which could result from a failure at
airspeeds above the selected stall speed.
4. Section 23.697(c) is added to read as follows:
Sec. 23.697 Wing flap controls
* * * * *
(c) If compliance with Sec. 23.145(b)(3) necessitates wing flap
retraction to positions that are not fully retracted, the wing flap
control lever settings corresponding to those positions must be
positively located such that a definite change of direction of movement
of the lever is necessary to select settings beyond those settings.
5. Section 23.701 is amended by revising paragraphs (a)(1) and
(a)(2) to read as follows:
Sec. 23.701 Flap interconnection.
(a) * * *
(1) Be synchronized by a mechanical interconnection between the
movable flap surfaces that is independent of the flap drive system; or
by an approved equivalent means; or
(2) Be designed so that the occurrence of any failure of the flap
system that would result in an unsafe flight
[[Page 5166]]
characteristic of the airplane is extremely improbable; or
* * * * *
6. A new Sec. 23.703 is added to read as follows:
Sec. 23.703 Takeoff warning system.
For commuter category airplanes, unless it can be shown that a lift
or longitudinal trim device that affects the takeoff performance of the
aircraft would not give an unsafe takeoff configuration when selection
out of an approved takeoff position, a takeoff warning system must be
installed and meet the following requirements:
(a) The system must provide to the pilots an aural warning that is
automatically activated during the initial portion of the takeoff role
if the airplane is in a configuration that would not allow a safe
takeoff. The warning must continue until--
(1) The configuration is changed to allow safe takeoff, or
(2) Action is taken by the pilot to abandon the takeoff roll.
(b) The means used to activate the system must function properly
for all authorized takeoff power settings and procedures and throughout
the ranges of takeoff weights, altitudes, and temperatures for which
certification is requested.
Sec. 23.723 [Amended]
7. Section 23.723(b) is amended by changing the word ``reserved''
to ``reserve''.
8. Section 23.729 is amended by revising paragraph (e) and by
adding a new paragraph (g) to read as follows:
Sec. 23.729 Landing gear extension and retraction system.
* * * * *
(e) Position indicator. If a retractable landing gear is used,
there must be a landing gear position indicator (as well as necessary
switches to actuate the indicator) or other means to inform the pilot
that each gear is secured in the extended (or retracted) position. If
switches are used, they must be located and coupled to the landing gear
mechanical system in a manner that prevents an erroneous indication of
either ``down and locked'' if each gear is not in the fully extended
position, or ``up and locked'' if each landing gear is not in the fully
retracted position.
* * * * *
(g) Equipment located in the landing gear bay. If the landing gear
bay is used as the location for equipment other than the landing gear,
that equipment must be designed and installed to minimize damage from
items such as a tire burst, or rocks, water, and slush that may enter
the landing gear bay.
9. Section 23.735 is amended by redesignating paragraph (c) as
paragraph (d), by revising the introductory text of paragraph (a), and
by adding new paragraphs (c) and (e) to read as follows:
Sec. 23.735 Brakes.
(a) Brakes must be provided. The landing brake kinetic energy
capacity rating of each main wheel brake assembly must not be less than
the kinetic energy absorption requirements determined under either of
the following methods:
* * * * *
(c) During the landing distance determination required by
Sec. 23.75, the pressure on the wheel braking system must not exceed
the pressure specified by the brake manufacturer.
* * * * *
(e) In addition, for commuter category airplanes, the rejected
takeoff brake kinetic energy capacity rating of each main wheel brake
assembly must not be less than the kinetic energy absorption
requirements determined under either of the following methods--
(1) The brake kinetic energy absorption requirements must be based
on a conservative rational analysis of the sequence of events expected
during a rejected takeoff at the design takeoff weight.
(2) Instead of a rational analysis, the kinetic energy absorption
requirements for each main wheel brake assembly may be derived from the
following formula--
KE=0.0443 WV\2\N
where,
KE=Kinetic energy per wheel (ft.-lbs.);
W=Design takeoff weight (lbs.);
V=Ground speed, in knots, associated with the maximum value of V1
selected in accordance with Sec. 23.51(c)(1);
N=Number of main wheels with brakes.
10. A new Sec. 23.745 is added to read as follows:
Sec. 23.745 Nose/tail wheel steering.
(a) If nose/tail wheel steering is installed, it must be
demonstrated that its use does not require exceptional pilot skill
during takeoff and landing, in crosswinds, or in the event of an engine
failure; or its use must be limited to low speed maneuvering.
(b) Movement of the pilot's steering control must not interfere
with the retraction or extension of the landing gear.
11. Section 23.775 is amended by revising paragraphs (a) and (c);
by redesignating paragraphs (d) and (e) as paragraphs (e) and (d); by
revising the newly designated paragraph (e); and by adding a new
paragraph (h) to read as follows:
Sec. 23.775 Windshields and windows.
(a) The internal panels of windshields and windows must be
constructed of a nonsplintering material, such as nonsplintering safety
glass.
* * * * *
(c) On pressurized airplanes, if certification for operation up to
and including 25,000 feet is requested, an enclosure canopy including a
representative part of the installation must be subjected to special
tests to account for the combined effects of continuous and cyclic
pressurization loadings and flight loads, or compliance with the fail-
safe requirements of paragraph (d) of this section must be shown.
* * * * *
(e) The windshield and side windows forward of the pilot's back
when the pilot is seated in the normal flight position must have a
luminous transmittance value of not less than 70 percent.
* * * * *
(h) In addition, for commuter category airplanes, the following
applies:
(1) Windshield panes directly in front of the pilots in the normal
conduct of their duties, and the supporting structures for these panes,
must withstand, without penetration, the impact of a two-pound bird
when the velocity of the airplane (relative to the bird along the
airplane's flight path) is equal to the airplane's maximum approach
flap speed.
(2) The windshield panels in front of the pilots must be arranged
so that, assuming the loss of vision through any one panel, one or more
panels remain available for use by a pilot seated at a pilot station to
permit continued safe flight and landing.
12. Section 23.783 is amended by revising paragraph (b) and by
adding a new paragraph (g) to read as follows:
Sec. 23.783 Doors.
* * * * *
(b) Passenger doors must not be located with respect to any
propeller disk or any other potential hazard so as to endanger persons
using the door.
* * * * *
(g) If lavatory doors are installed, they must be designed to
preclude an occupant from becoming trapped inside the lavatory. If a
locking mechanism is installed, it must be capable of being unlocked
from outside of the lavatory.
[[Page 5167]]
13. Section 23.785 is amended by adding introductory text and by
revising paragraphs (b) and (c) to read as follows:
Sec. 23.785 Seats, berths, litters, safety belts and shoulder
harnesses.
There must be a seat or berth for each occupant that meets the
following:
* * * * *
(b) Each forward-facing or aft-facing seat/restraint system in
normal, utility, or acrobatic category airplanes must consist of a
seat, a safety belt, and a shoulder harness, with a metal-to-metal
latching device, that are designed to provide the occupant protection
provisions required in Sec. 23.562. Other seat orientations must
provide the same level of occupant protection as a forward-facing or
aft-facing seat with a safety belt and a shoulder harness, and must
provide the protection provisions of Sec. 23.562.
(c) For commuter category airplanes, each seat and the supporting
structure must be designed for occupants weighing at least 170 pounds
when subjected to the inertia loads resulting from the ultimate static
load factors prescribed in Sec. 23.561(b)(2) of this part. Each
occupant must be protected from serious head injury when subjected to
the inertia loads resulting from these load factors by a safety belt
and shoulder harness, with a metal-to-metal latching device, for the
front seats and a safety belt, or a safety belt and shoulder harness,
with a metal-to-metal latching device, for each seat other than the
front seats.
* * * * *
14. Section 23.787 is revised to read as follows:
Sec. 23.787 Baggage and cargo compartments.
(a) Each baggage and cargo compartment must:
(1) Be designed for its placarded maximum weight of contents and
for the critical load distributions at the appropriate maximum load
factors corresponding to the flight and ground load conditions of this
part.
(2) Have means to prevent the contents of any compartment from
becoming a hazard by shifting, and to protect any controls, wiring,
lines, equipment or accessories whose damage or failure would affect
safe operations.
(3) Have a means to protect occupants from injury by the contents
of any compartment, located aft of the occupants and separated by
structure, when the ultimate forward inertial load factor is 9g and
assuming the maximum allowed baggage or cargo weight for the
compartment.
(b) Designs that provide for baggage or cargo to be carried in the
same compartment as passengers must have a means to protect the
occupants from injury when the baggage or cargo is subjected to the
inertial loads resulting from the ultimate static load factors of
Sec. 23.561(b)(3), assuming the maximum allowed baggage or cargo weight
for the compartment.
(c) For airplanes that are used only for the carriage of cargo, the
flightcrew emergency exits must meet the requirements of Sec. 23.807
under any cargo loading conditions.
15. A new Sec. 23.791 is added to read as follows:
Sec. 23.791 Passenger information signs.
For those airplanes in which the flightcrew members cannot observe
the other occupants' seats or where the flightcrew members' compartment
is separated from the passenger compartment, there must be at least one
illuminated sign (using either letters or symbols) notifying all
passengers when seat belts should be fastened. Signs that notify when
seat belts should be fastened must:
(a) When illuminated, be legible to each person seated in the
passenger compartment under all probable lighting conditions; and
(b) Be installed so that a flightcrew member can, when seated at
the flightcrew member's station, turn the illumination on and off.
16. Section 23.807 is amended by revising paragraphs (b)
introductory text and (b)(5) and by adding new paragraphs (a)(4) and
(b)(6) to read as follows:
Sec. 23.807 Emergency exits.
(a) * * *
(4) Emergency exits must not be located with respect to any
propeller disk or any other potential hazard so as to endanger persons
using that exit.
(b) Type and operation. Emergency exits must be movable windows,
panels, canopies, or external doors, openable from both inside and
outside the airplane, that provide a clear and unobstructed opening
large enough to admit a 19-by-26-inch ellipse. Auxiliary locking
devices used to secure the airplane must be designed to be overridden
by the normal internal opening means. The inside handles of emergency
exits that open outward must be adequately protected against
inadvertent operation. In addition, each emergency exit must--
* * * * *
(5) In the case of acrobatic category airplanes, allow each
occupant to abandon the airplane at any speed between VSO and
VD; and
(6) In the case of utility category airplanes certificated for
spinning, allow each occupant to abandon the airplane at the highest
speed likely to be achieved in the maneuver for which the airplane is
certificated.
* * * * *
Sec. 23.841 [Amended]
17. Section 23.841 is amended in paragraph (a) by removing the
number ``31,000'' and replacing it with ``25,000''.
18. Section 23.853 is amended by revising the section heading to
read as follows:
Sec. 23.853 Passenger and crew compartment interiors.
* * * * *
19. A new Sec. 23.855 is added to read as follows:
Sec. 23.855 Cargo and baggage compartment fire protection.
(a) Sources of heat within each cargo and baggage compartment that
are capable of igniting the compartment contents must be shielded and
insulated to prevent such ignition.
(b) Each cargo and baggage compartment must be constructed of
materials that meet the appropriate provisions of Sec. 23.853(d)(3).
(c) In addition, for commuter category airplanes, each cargo and
baggage compartment must:
(1) Be located where the presence of a fire would be easily
discovered by the pilots when seated at their duty station, or it must
be equipped with a smoke or fire detector system to give a warning at
the pilots' station, and provide sufficient access to enable a pilot to
effectively reach any part of the compartment with the contents of a
hand held fire extinguisher, or
(2) Be equipped with a smoke or fire detector system to give a
warning at the pilots' station and have ceiling and sidewall liners and
floor panels constructed of materials that have been subjected to and
meet the 45 degree angle test of Appendix F of this part. The flame may
not penetrate (pass through) the material during application of the
flame or subsequent to its removal. The average flame time after
removal of the flame source may not exceed 15 seconds, and the average
glow time may not exceed 10 seconds. The compartment must be
constructed to provide fire protection that is not less than that
required of its individual panels; or
(3) Be constructed and sealed to contain any fire within the
compartment.
[[Page 5168]]
20. Section 23.867 is amended by revising the heading that precedes
the section and the section heading to read as follows:
Electrical Bonding and Lighting Protection
Sec. 23.867 Electrical bonding and protection against lightning and
static electricity.
* * * * *
21. Section 23.1303 is amended by revising the introductory text;
by amending paragraph (d) by inserting the words ``reciprocating
engine-powered airplanes of more than 6,000 pounds maximum weight and''
between the words ``For'' and ``turbine''; by amending paragraph (e)
concluding text by adding a line to read, ``The lower limit of the
warning device must be set to minimize nuisance warning;'' at the end
of the paragraph and by adding new paragraphs (f) and (g) to read as
follows:
Sec. 23.1303 Flight and navigation instruments.
The following are the minimum required flight and navigation
instruments:
* * * * *
(f) When an attitude display is installed, the instrument design
must not provide any means, accessible to the flightcrew, of adjusting
the relative positions of the attitude reference symbol and the horizon
line beyond that necessary for parallax correction.
(g) In addition, for commuter category airplanes:
(1) If airspeed limitations vary with altitude, the airspeed
indicator must have a maximum allowable airspeed indicator showing the
variation of VMO with altitude.
(2) The altimeter must be a sensitive type.
(3) Having a passenger seating configuration of 10 or more,
excluding the pilot's seats and that are approved for IFR operations, a
third attitude instrument must be provided that:
(i) Is powered from a source independent of the electrical
generating system;
(ii) Continues reliable operation for a minimum of 30 minutes after
total failure of the electrical generating system;
(iii) Operates independently of any other attitude indicating
system;
(iv) Is operative without selection after total failure of the
electrical generating system;
(v) Is located on the instrument panel in a position acceptable to
the Administrator that will make it plainly visible to and usable by
any pilot at the pilot's station; and
(vi) Is appropriately lighted during all phases of operation.
Sec. 23.1307 [Amended]
22. Section 23.1307 is amended by removing paragraphs (a) and (b);
and by removing the designation from paragraph (c).
23. Section 23.1309(a)(4) is added to read as follows:
Sec. 23.1309 Equipment, systems, and installations.
(a) * * *
(4) In a commuter category airplane, must be designed to safeguard
against hazards to the airplane in the event of their malfunction or
failure.
* * * * *
24. Section 23.1311 is revised to read as follows:
Sec. 23.1311 Electronic display instrument systems.
(a) Electronic display indicators, including those with features
that make isolation and independence between powerplant instrument
systems impractical, must:
(1) Meet the arrangement and visibility requirements of
Sec. 23.1321.
(2) Be easily legible under all lighting conditions encountered in
the cockpit, including direct sunlight, considering the expected
electronic display brightness level at the end of an electronic display
indictor's useful life. Specific limitations on display system useful
life must be contained in the Instructions for Continued Airworthiness
required by Sec. 23.1529.
(3) Not inhibit the primary display of attitude, airspeed,
altitude, or powerplant parameters needed by any pilot to set power
within established limitations, in any normal mode of operation.
(4) Not inhibit the primary display of engine parameters needed by
any pilot to properly set or monitor powerplant limitations during the
engine starting mode of operation.
(5) Have an independent magnetic direction indicator and either an
independent secondary mechanical altimeter, airspeed indicator, and
attitude instrument or individual electronic display indicators for the
altitude, airspeed, and attitude that are independent from the
airplane's primary electrical power system. These secondary instruments
may be installed in panel positions that are displaced from the primary
positions specified by Sec. 23.1321(d), but must be located where they
meet the pilot's visibility requirements of Sec. 23.1321(a).
(6) Incorporate sensory cues for the pilot that are equivalent to
those in the instrument being replaced by the electronic display
indicators.
(7) Incorporate visual displays of instrument markings, required by
Secs. 23.1541 through 23.1553, or visual displays that alert the pilot
to abnormal operational values or approaches to established limitation
values, for each parameter required to be displayed by this part.
(b) The electronic display indicators, including their systems and
installations, and considering other airplane systems, must be designed
so that one display of information essential for continued safe flight
and landing will remain available to the crew, without need for
immediate action by any pilot for continued safe operation, after any
single failure or probable combination of failures.
(c) As used in this section, ``instrument'' includes devices that
are physically contained in one unit, and devices that are composed of
two or more physically separate units or components connected together
(such as a remote indicating gyroscopic direction indicator that
includes a magnetic sensing element, a gyroscopic unit, an amplifier,
and an indicator connected together). As used in this section,
``primary'' display refers to the display of a parameter that is
located in the instrument panel such that the pilot looks at it first
when wanting to view that parameter.
Sec. 23.1321 [Amended]
25. Section 23.1321 is amended by removing the words ``certificated
for flight under instrument flight rules or of more than 6,000 pounds
maximum weight'' from paragraph (d) introductory text.
26. Section 23.1323 is amended by removing paragraph (d);
redesignating paragraph (e) as (d) and paragraph (c) as (e); by
removing the words ``in flight and'' from the first sentence of
redesignated paragraph (e); and by adding new paragraphs (c) and (f) to
read as follows:
Sec. 23.1323 Airspeed indicating system.
* * * * *
(c) The design and installation of each airspeed indicating system
must provide positive drainage of moisture from the pitot static
plumbing.
* * * * *
(f) For commuter category airplanes, where duplicate airspeed
indicators are required, their respective pitot tubes must be far
enough apart to avoid damage to both tubes in a collision with a bird.
[[Page 5169]]
Sec. 23.1325 [Amended]
27. Section 23.1325 is amended by inserting the words ``or icing''
between the words ``meteorological'' and ``conditions'' in paragraph
(g).
28. A new Sec. 23.1326 is added to read as follows:
Sec. 23.1326 Pitot heat indication systems.
If a flight instrument pitot heating system is installed to meet
the requirements specified in Sec. 23.1323(d), an indication system
must be provided to indicate to the flight crew when that pitot heating
system is not operating. The indication system must comply with the
following requirements:
(a) The indication provided must incorporate an amber light that is
in clear view of a flightcrew member.
(b) The indication provided must be designed to alert the flight
crew if either of the following conditions exist:
(1) The pitot heating system is switched ``off.''
(2) The pitot heating system is switched ``on'' and any pitot tube
heating element is inoperative.
Sec. 23.1329 [Amended]
29. Section 23.1329(b) is amended by adding the parenthetical
phrase ``(both stick controls, if the airplane can be operated from
either pilot seat)'' between the words, ``or on the stick control,''
and the word ``such''.
30. Section 23.1337 is amended by revising the section heading, by
revising the introductory text of paragraph (b), by redesignating
paragraphs (b)(4) and (b)(5) as paragraph (b)(5) and (b)(6),
respectively, and by adding a new paragraph (b)(4) to read as follows:
Sec. 23.1337 Powerplant instruments installation.
* * * * *
(b) Fuel quantity indication. There must be a means to indicate to
the flightcrew members the quantity of usable fuel in each tank during
flight. An indicator calibrated in appropriate units and clearly marked
to indicate those units must be used. In addition:
* * * * *
(4) There must be a means to indicate the amount of usable fuel in
each tank when the airplane is on the ground (such as by a stick
gauge);
* * * * *
31. Section 23.1351 is amended by removing paragraph (b)(4), by
redesignating paragraph (b)(5) as (b)(4), by adding a sentence to the
end of paragraph (f) that reads, ``The external power connection must
be located so that its use will not result in a hazard to the airplane
or ground personnel'', and by revising paragraphs (b)(2), (b)(3), and
(c)(3) to read as follows:
Sec. 23.1351 General.
* * * * *
(b) * * *
(2) Electric power sources must function properly when connected in
combination or independently.
(3) No failure or malfunction of any electric power source may
impair the ability of any remaining source to supply load circuits
essential for safe operation.
* * * * *
(c) * * *
(3) Automatic means must be provided to prevent damage to any
generator/alternator and adverse effects on the airplane electrical
system due to reverse current. A means must also be provided to
disconnect each generator/alternator from the battery and other
generators/alternators.
* * * * *
32. Section 23.1353(h) is added to read as follows:
Sec. 23.1353 Storage battery design and installation.
* * * * *
(h) In the event of a complete loss of the primary electrical power
generating system, the battery must be capable of providing at least 30
minutes of electrical power to those loads that are essential to
continued safe flight and landing. The 30 minute time period includes
the time needed for the pilots to recognize the loss of generated power
and take appropriate load shedding action.
33. A new Sec. 23.1359 is added to read as follows:
Sec. 23.1359 Electrical system fire protection.
(a) Each component of the electrical system must meet the
applicable fire protection requirements of Secs. 23.863 and 23.1182.
(b) Electrical cables, terminals, and equipment in designated fire
zones that are used during emergency procedures must be fire-resistant.
(c) Insulation on electrical wire and electrical cable must be
self-extinguishing when tested at an angle of 60 degrees in accordance
with the applicable portions of Appendix F of this part, or other
approved equivalent methods. The average burn length must not exceed 3
inches (76 mm) and the average flame time after removal of the flame
source must not exceed 30 seconds. Drippings from the test specimen
must not continue to flame for more than an average of 3 seconds after
falling.
Sec. 23.1361 [Amended]
34. Section 23.1361(c) is amended by removing the last two words
``in flight''.
35. Section 23.1365 is amended by revising paragraph (b) and by
adding new paragraphs (d), (e), and (f) to read as follows:
Sec. 23.1365 Electrical cables and equipment.
* * * * *
(b) Any equipment that is associated with any electrical cable
installation and that would overheat in the event of circuit overload
or fault must be flame resistant. That equipment and the electrical
cables must not emit dangerous quantities of toxic fumes.
* * * * *
(d) Means of identification must be provided for electrical cables,
terminals, and connectors.
(e) Electrical cables must be installed such that the risk of
mechanical damage and/or damage cased by fluids vapors, or sources of
heat, is minimized.
(f) Where a cable cannot be protected by a circuit protection
device or other overload protection, it must not cause a fire hazard
under fault conditions.
36. Section 23.1383 is revised to read as follows:
Sec. 23.1383 Taxi and landing lights.
Each taxi and landing light must be designed and installed so that:
(a) No dangerous glare is visible to the pilots.
(b) The pilot is not seriously affected by halation.
(c) It provides enough light for night operations.
(d) It does not cause a fire hazard in any configuration.
37. Section 23.1401 is amended by revising the introductory text of
paragraph (a) to read as follows:
Sec. 23.1401 Anticollision light system.
(a) General. The airplane must have an anticollision light system
that:
* * * * *
Sec. 23.1413 [Amended]
38. Section 23.1413 is removed.
39. Section 23.1431 is amended by adding new paragraphs (c), (d),
and (e) to read as follows:
Sec. 23.1431 Electronic equipment.
* * * * *
(c) For those airplanes required to have more than one flightcrew
member, or whose operation will require more than one flightcrew
member, the cockpit must be evaluated to determine if the flightcrew
members, when seated at their duty station, can converse without
difficulty under the actual cockpit noise conditions when the airplane
is being
[[Page 5170]]
operated. If the airplane design includes provision for the use of
communication headsets, the evaluation must also consider conditions
where headsets are being used. If the evaluation shows conditions under
which it will be difficult to converse, an intercommunication system
must be provided.
(d) If installed communication equipment includes transmitter
``off-on'' switching, that switching means must be designed to return
from the ``transmit'' to the ``off'' position when it is released and
ensure that the transmitter will return to the off (non transmitting)
state.
(e) If provisions for the use of communication headsets are
provided, it must be demonstrated that the flightcrew members will
receive all aural warnings under the actual cockpit noise conditions
when the airplane is being operated when any headset is being used.
40. Section 23.1435(c) is revised to read as follows:
Sec. 23.1435 Hydraulic systems.
* * * * *
(c) Accumulators. A hydraulic accumulator or reservoir may be
installed on the engine side of any firewall if--
(1) It is an integral part of an engine or propeller system, or
(2) The reservoir is nonpressurized and the total capacity of all
such nonpressurized reservoirs is one quart or less.
41. Section 23.1447 is amended by revising paragraphs (d) and (e)
and by adding a new paragraph (a)(4) to read as follows:
Sec. 23.1447 Equipment standards for oxygen dispensing units.
* * * * *
(a) * * *
(4) If radio equipment is installed, the flightcrew oxygen
dispensing units must be designed to allow the use of that equipment
and to allow communication with any other required crew member while at
their assigned duty station.
* * * * *
(d) For a pressurized airplane designed to operate at flight
altitudes above 25,000 feet (MSL), the dispensing units must meet the
following:
(1) The dispensing units for passengers must be connected to an
oxygen supply terminal and be immediately available to each occupant
wherever seated.
(2) The dispensing units for crewmembers must be automatically
presented to each crewmember before the cabin pressure altitude exceeds
15,000 feet, or the units must be of the quick-donning type, connected
to an oxygen supply terminal that is immediately available to
crewmembers at their station.
(e) If certification for operation above 30,000 feet is requested,
the dispensing units for passengers must be automatically presented to
each occupant before the cabin pressure altitude exceeds 15,000 feet.
* * * * *
42. A new Sec. 23.1451 is added to read as follows:
Sec. 23.1451 Fire protection for oxygen equipment.
Oxygen equipment and lines must:
(a) Not be installed in any designed fire zones.
(b) Be protected from heat that may be generated in, or escape
from, any designated fire zone.
(c) Be installed so that escaping oxygen cannot come in contact
with and cause ignition of grease, fluid, or vapor accumulations that
are present in normal operation or that may result from the failure or
malfunction of any other system.
43. A new Sec. 23.1453 is added to read as follows:
Sec. 23.1453 Protection of oxygen equipment from rupture.
(a) Each element of the oxygen system must have sufficient strength
to withstand the maximum pressure and temperature, in combination with
any externally applied loads arising from consideration of limit
structural loads, that may be acting on that part of the system.
(b) Oxygen pressure sources and the lines between the source and
the shutoff means must be:
(1) Protected from unsafe temperatures; and
(2) Located where the probability and hazard of rupture in a crash
landing are minimized.
44. Section 23.1461(a) is revised to read as follows:
Sec. 23.1461 Equipment containing high energy rotors.
(a) Equipment, such as Auxiliary Power Units (APU) and constant
speed drive units, containing high energy rotors must meet paragraphs
(b), (c), or (d) of this section.
* * * * *
45. Appendix F to part 23 is amended by revising the introductory
paragraph, by amending paragraph (c) to change the reference from
paragraph (e) to paragraph (g), by amending paragraph (d) to change the
reference from paragraph (f) to paragraph (h), by redesignating current
paragraph (f) as paragraph (h), and by revising paragraph (b) and
adding new paragraphs (f) and (g) to read as follows:
Appendix F To Part 23 Test Procedure
Acceptable test procedure for self-extinguishing materials for
showing compliance with Secs. 23.853, 23.855 and 23.1359.
* * * * *
(b) Specimen configuration. Except as provided for materials
used in electrical wire and cable insulation and in small parts,
materials must be tested either as a section cut from a fabricated
part as installed in the airplane or as a specimen simulating a cut
section, such as: a specimen cut from a flat sheet of the material
or a model of the fabricated part. The specimen may be cut from any
location in a fabricated part; however, fabricated units, such as
sandwich panels, may not be separated for a test. The specimen
thickness must be no thicker than the minimum thickness to be
qualified for use in the airplane, except that: (1) Thick foam
parts, such as seat cushions, must be tested in \1/2\ inch
thickness; (2) when showing compliance with Sec. 23.853(d)(3)(v) for
materials used in small parts that must be tested, the materials
must be tested in no more than \1/8\ inch thickness; (3) when
showing compliance with Sec. 23.1359(c) for materials used in
electrical wire and cable insulation, the wire and cable specimens
must be the same size as used in the airplane. In the case of
fabrics, both the warp and fill direction of the weave must be
tested to determine the most critical flammability conditions. When
performing the tests prescribed in paragraphs (d) and (e) of this
appendix, the specimen must be mounted in a metal frame so that (1)
in the vertical tests of paragraph (d) of this appendix, the two
long edges and the upper edge are held securely; (2) in the
horizontal test of paragraph (e) of this appendix, the two long
edges and the edge away from the flame are held securely; (3) the
exposed area of the specimen is at least 2 inches wide and 12 inches
long, unless the actual size used in the airplane is smaller; and
(4) the edge to which the burner flame is applied must not consist
of the finished or protected edge of the specimen but must be
representative of the actual cross section of the material or part
installed in the airplane. When performing the test prescribed in
paragraph (f) of this appendix, the specimen must be mounted in
metal frame so that all four edges are held securely and the exposed
area of the specimen is at least 8 inches by 8 inches.
* * * * *
(f) Forty-five degree test. A minimum of three specimens must be
tested and the results averaged. The specimens must be supported at
an angle of 45 degrees to a horizontal surface. The exposed surface
when installed in the aircraft must be face down for the test. The
specimens must be exposed to a Bunsen or Tirrill burner with a
nominal \3/8\ inch I.D. tube adjusted to give a flame of 1\1/2\
inches in height. The minimum flame temperature measured by a
calibrated thermocouple pyrometer in the center of the
[[Page 5171]]
flame must be 1550 deg.F. Suitable precautions must be taken to avoid
drafts. The flame must be applied for 30 seconds with one-third
contacting the material at the center of the specimen and then
removed. Flame time, glow time, and whether the flame penetrates
(passes through) the specimen must be recorded.
(g) Sixty-degree test. A minimum of three specimens of each wire
specification (make and size) must be tested. The specimen of wire
or cable (including insulation) must be placed at an angle of 60
degrees with the horizontal in the cabinet specified in paragraph
(c) of this appendix, with the cabinet door open during the test or
placed within a chamber approximately 2 feet high x 1 foot x 1
foot, open at the top and at one vertical side (front), that allows
sufficient flow of air for complete combustion but is free from
drafts. The specimen must be parallel to and approximately 6 inches
from the front of the chamber. The lower end of the specimen must be
held rigidly clamped. The upper end of the specimen must pass over a
pulley or rod and must have an appropriate weight attached to it so
that the specimen is held tautly throughout the flammability test.
The test specimen span between lower clamp and upper pulley or rod
must be 24 inches and must be marked 8 inches from the lower end to
indicate the central point for flame application. A flame from a
Bunsen or Tirrill burner must be applied for 30 seconds at the test
mark. The burner must be mounted underneath the test mark on the
specimen, perpendicular to the specimen and at an angle of 30
degrees to the vertical plane of the specimen. The burner must have
a nominal bore of three-eighths inch, and must be adjusted to
provide a three-inch-high flame with an inner cone approximately
one-third of the flame height. The minimum temperature of the
hottest portion of the flame, as measured with a calibrated
thermocouple pyrometer, may not be less than 1,750 deg.F. The
burner must be positioned so that the hottest portion of the flame
is applied to the test mark on the wire. Flame time, burn length,
and flaming time drippings, if any, must be recorded. The burn
length determined in accordance with paragraph (h) of this appendix
must be measured to the nearest one-tenth inch. Breaking of the wire
specimen is not considered a failure.
* * * * *
PART 91--GENERAL OPERATING AND FLIGHT RULES
46. The authority citation for part 91 continues to read as
follows:
Authority: 49 U.S.C. 1301(7), 1303, 1344, 1348, 1352 through
1355, 1401, 1421 through 1431, 1471, 1472, 1502, 1510, 1522, and
2121 through 2125; Articles 12, 29, 21, and 32(a) of the Convention
on International Civil Aviation (61 Stat. 1180); 42 U.S.C. 4321 et
seq.; E.O. 11514; 49 U.S.C. 106(g).
47. Section 91.205 is amended by redesignating paragraphs (b)(11)
through (b)(16) as paragraphs (b)(12) through (b)(17), respectively,
and by adding a new paragraph (b)(11) to read as follows:
Sec. 91.205 Powered civil aircraft with standard category U.S.
airworthiness certificates: Instrument and equipment requirements.
* * * * *
(b) * * *
(11) For small civil airplanes certificated after March 11, 1996,
in accordance with part 23 of this chapter, an approved aviation red or
aviation white anticollision light system. In the event of failure of
any light of the anticollision light system, operation of the aircraft
may continue to a location where repairs or replacement can be made.
* * * * *
48. Section 91.209 is revised to read as follows:
Sec. 91.209 Aircraft lights.
No person may:
(a) During the period from sunset to sunrise (or, in Alaska, during
the period a prominent unlighted object cannot be seen from a distance
of 3 statute miles or the sun is more than 6 degrees below the
horizon)--
(1) Operate an aircraft unless it has lighted position lights;
(2) Park or move an aircraft in, or in dangerous proximity to, a
night flight operations area of an airport unless the aircraft--
(i) Is clearly illuminated;
(ii) Has lighted position lights; or
(iii) is in an area that is marked by obstruction lights;
(3) Anchor an aircraft unless the aircraft--
(i) Has lighted anchor lights; or
(ii) Is in an area where anchor lights are not required on vessels;
or
(b) Operate an aircraft that is equipped with an anticollision
light system, unless it has lighted anticollision lights. However, the
anticollision lights need not be lighted when the pilot-in-command
determines that, because of operating conditions, it would be in the
interest of safety to turn the lights off.
Issued in Washington DC, on January 29, 1996.
David R. Hinson,
Administrator.
[FR Doc. 96-2083 Filed 2-8-96; 8:45 am]
BILLING CODE 4910-13-M
Complete official Federal Register PDF
FR Doc. 96-2082 Airworthiness Standards; Flight Rules Based on European Joint Aviation Requirements
[Federal Register Volume 61, Number 28 (Friday, February 9, 1996)]
[Rules and Regulations]
[Pages 5171-5195]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-2082]
-----------------------------------------------------------------------
DEPARTMENT OF TRANSPORTATION
14 CFR Parts 1 and 23
[Docket No. 27807; Amendment Nos. 1-43, 23-50]
RIN 2120-AE61
Airworthiness Standards; Flight Rules Based on European Joint
Aviation Requirements
AGENCY: Federal Aviation Administration, DOT.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: This final rule amends the flight airworthiness standards for
normal, utility, acrobatic, and commuter category airplanes. This
amendment completes a portion of the Federal Aviation Administration
(FAA) and the European Joint Aviation Authorities (JAA) effort to
harmonize the Federal Aviation Regulations and the Joint Aviation
Requirements (JAR) for airplanes certification in these categories.
This amendment will provide nearly uniform flight airworthiness
standards for airplanes certificated in the United States under 14 CFR
part 23 and in the JAA countries under Joint Aviation Requirement 23,
simplifying international airworthiness approval.
EFFECTIVE DATE: March 11, 1996.
FOR FURTHER INFORMATION CONTACT:
Lowell Foster, ACE-111, Small Airplane Directorate, Aircraft
Certification Service, Federal Aviation Administration, 601 East 12th
Street, Kansas City, Missouri 64106; telephone (816) 426-5688.
SUPPLEMENTARY INFORMATION:
Background
This amendment is based on Notice of Proposed Rulemaking (NPRM) No.
94-22 (59 FR 37878, July 25, 1994). All comments received in response
to Notice 94-22 have been considered in adopting this amendment.
This amendment completes part of an effort to harmonize the
requirements of part 23 and JAR 23. The revisions to part 23 in this
amendment pertain to flight airworthiness standards. Three other final
rules are being issued in this Federal Register that pertain to
airworthiness standards for systems and equipment powerplant, and
airframe. These related rulemakings are also part of the harmonization
effort. Interested persons should receive all four final rules to
ensure that all revisions to part 23 are recognized.
The harmonization effort was initiated at a meeting in June 1990 of
the JAA Council (consisting of JAA members from European countries) and
[[Page 5172]]
the FAA, during which the FAA Administrator committed the FAA to
support the harmonization of the United States regulations with the JAR
that were being developed. In response to the commitment, the FAA Small
Airplane Directorate established an FAA Harmonization Task Force to
work with the JAR 23 Study Group to harmonize part 23 with the proposed
JAR 23. The General Aviation Manufacturers Association (GAMA) also
established a JAR 23/part 23 committee to provide technical assistance.
The FAA, JAA, GAMA, and the Association Europeanne des
Constructeurs de Material Aerospatial (AECMA), an organization of
European airframe manufacturers, met on several occasions in a
continuing harmonization effort.
Near the end of the effort to harmonize the normal, utility, and
aerobatic category airplane airworthiness standards, the JAA requested
and received recommendations from its member countries on proposed
airworthiness standards for commuter category airplanes. Subsequent JAA
and FAA meetings on this issue resulted in proposals that were
reflected in Notice No. 94-22 to revise portions of the part 23
commuter category airworthiness standards. Accordingly, this final rule
adopts the flight airworthiness standards for all part 23 airplanes.
In January 1991, the FAA established the Aviation Rulemaking
Advisory Committee (ARAC) (56 FR 2190, January 22, 1991). At an FAA/JAA
Harmonization Conference in Canada in June 1992, the FAA announced that
it would consolidate the harmonization effort within the ARAC
structure. The FAA assigned to ARAC the rulemakings related to JAR/part
23 harmonization, which ARAC assigned to the JAR/FAR 23 Harmonization
Working Group. The proposal for flight airworthiness standards
contained in Notice No. 94-22 were a result of both the working group's
efforts and the efforts at harmonization that occurred before the
formation of the working group.
The JAA submitted comments to the FAA on January 20, 1994, in
response to the four draft proposals for harmonization of the part 23
airworthiness standards. The JAA submitted comments again during the
comment period of the NPRM. At the April 26, 1995, ARAC JAR/FAR 23
Harmonization Working Group meeting, the JAA noted that many of the
comments in the January 20 letter had been satisfied or were no longer
relevant. The few remaining items concern issues that are considered
beyond the scope of this rulemaking and, therefore, will be dealt with
at future FAA/JAA Harmonization meetings.
Discussion of Comments
General
Interested persons were invited to participate in the development
of these final rules by submitting written data, views, or arguments to
the regulatory docket on or before November 21, 1994. Four commenters
responded to Notice No. 94-22. Minor technical and editorial changes
have been made to the proposed rules based on relevant comments
received, consultation with ARAC, and further review by the FAA.
Discussion of Amendments
Section 1.1 General Definitions
The FAA proposed to amend Sec. 1.1 to add a definition of ``maximum
speed for stability characteristics, VFC/MFC.'' This change
harmonizes part 1 and JAR 1. The definition is deleted from
Sec. 23.175(b)(2).
No comments were received on the proposal for this section, and it
is adopted as proposed.
Section 23.3 Airplane Categories
The FAA proposed to revise Sec. 23.3(b)(2) to add an outside limit
of 90 degrees in angle of bank for lazy eights, chandelles, and seep
turns.
The FAA proposed to revise Sec. 23.3(d) to remove chandelles and
lazy eights as approved operations in commuter category airplanes. The
FAA does not anticipate any operational need for such maneuvers.
The FAA proposed to revise Sec. 23.3(e) to prohibit type
certification of commuter category airplanes in any other category.
This rule change will not preclude the type certification of similar
airplanes with different model numbers, such as the present Cessna
models 500 and 501.
No comments were received on the proposals for this section, and
they are adopted as proposed.
Section 23.25 Weight Limits
The FAA proposed to revise Sec. 23.25(a) to clarify that the
maximum weight that must be selected is the least of the three choices
given in Sec. 23.25(a)(1). The FAA proposed to remove the commuter
category zero fuel weight requirement from current Sec. 23.25(a). The
requirement was proposed to be removed to Sec. 23.343 by the airframe
NPRM, Notice No. 94-20 (59 FR 35198, July 8, 1994). The FAA proposed to
remove the reference to standby power rocket engines in
Sec. 23.25(a)(1)(iii) and to remove appendix E because this is a rare
and obsolete design feature. If a manufacturer proposed to use this
approach, the FAA would issue special conditions to ensure adequate
airworthiness.
No comments were received on the proposals for this section, and
they are adopted as proposed.
Section 23.33 Propeller Speed and Pitch Limits
The FAA proposed to revise Sec. 23.33(b)(1) to remove the reference
to VY and to replace it with ``the all engine(s) operating climb
speed specified in Sec. 23.65,'' to be consistent with other changes in
performance requirements. The FAA proposed to revise Sec. 23.33(b)(2)
to use ``VNE'' in place of ``never exceed speed,'' since VNE
is defined in part 1, and to remove the word ``placarded,'' which is
unnecessary.
No comments were received on the proposals for this section, and
they are adopted as proposed.
Section 23.45 General
In Notice of Proposed Rulemaking, Small Airplane Airworthiness
Review Program Notice No. 4, Notice No. 90-18 (55 FR 26534, June 28,
1990), the FAA requested comments on the need for weight, altitude, and
temperature (WAT) criteria, as information or as a limitation on
piston-powered, twin-engine part 23 airplanes. The FAA also requested
comments about WAT criteria on turbine-powered twin-engine part 23
airplanes, specifically during takeoff and landing.
WAT criteria is used to determine the maximum weight an airplane
can have in relation to altitude and temperature for safe takeoff. This
criteria provides pilots with the information needed to determine if a
takeoff and climb can be successfully completed if one engine becomes
inoperative. WAT criteria has been required under part 23 for commuter
category airplanes, at all approved altitudes. A limited WAT criteria
has been required for turbine engine powered airplanes at 5,000 feet
and at standard temperature plus 40 deg.F, but not for higher altitudes
or temperatures. For multiengine powered airplanes, WAT data has been
provided by the manufacturer as information to pilots.
The FAA received three comments on mandating WAT criteria in part
23 and addressed these comments in detail in the preamble to Notice 94-
22.
Based on statistics and conclusions from an FAA 1991 study
(discussed in detail in Notice 94-22) and on comments, the FAA
determined that
[[Page 5173]]
WAT limits are necessary for safe operation of multiengine airplanes of
the type that will be involved in transporting passengers for hire.
The FAA proposed a complete revision of Sec. 23.45 to require
weight, altitude, and temperature (WAT) performance accountability for
normal, utility, and acrobatic airplanes with a maximum takeoff weight
over 6,000 pounds and all turbine-powered airplanes.
No comments were received on the proposal for this section, and it
is adopted as proposed.
Section 23.49 Stalling Speed
The FAA proposed to revise Sec. 23.49 by reorganizing and editing
it for clarification. The FAA's proposed clarification merges, in
paragraph (a), the VSO and VS1 requirements, which were
separated with parallel configuration items under paragraphs (a) and
(d).
Other proposed changes to paragraph (a) are as follows:
(1) Proposed paragraph (a)(4) is a requirement that the airplane be
in the condition existing in the test, in which VSO and VS1
are being used.
(2) Proposed paragraph (a)(5) is a revised version of current
paragraph (a)(6). The current requirement states that the center of
gravity must be in the most unfavorable position within the allowable
landing range. The proposed requirement would state that the center of
gravity must be in the position that results in the highest value of
VSO and VS1.
(3) Current paragraph (a)(5) is moved to Sec. 23.45(c).
These changes are clarifying and are not an increase in
requirements. The only comment received was from JAA, noting the
existing disharmony between the JAR and the FAR concerning a VSO
more than 61 knots for single-engine airplanes and multiengine
airplanes of 6,000 pounds maximum weight or less than do not meet the
required minimum rate of climb.
The proposal is adopted as proposed.
Section 23.51 Takeoff Speeds
The FAA proposed to change the paragraph heading from ``Takeoff''
to ``Takeoff speeds'' and to incorporate the takeoff speed requirements
currently contained in Sec. 23.53. This revision to the heading and the
reorganization of takeoff requirements is proposed for harmony with JAR
23.
The FAA proposed to move current Sec. 23.51(a) to Sec. 23.53(a).
Current paragraph (a) requires that the distance required to take off
and climb over a 50-foot obstacle must be determined with the engines
operating within approved operating limitations and with cowl flaps in
the normal takeoff position. These requirements for power and cowl
flaps are now covered in final Sec. 23.45, paragraphs (c) and (d), and
in Sec. 23.1587.
The FAA proposed to remove current Sec. 23.51(b) on measuring
seaplane and amphibian takeoff distances. It is a statement of an
acceptable method of compliance, and there is no need to address a
separate seaplane starting point.
The FAA proposed to remove current Sec. 23.51(c) concerning pilot
skills and conditions. It is covered under the general requirements in
proposed Sec. 23.45(f).
The FAA proposed to remove current Sec. 23.51(d). The requirements
are covered under Sec. 23.45 in commuter category performance and other
performance requirements, and the information requirements are covered
under Sec. 23.1587.
For multiengine normal, utility, and acrobatic category airplanes,
the FAA proposed to transfer the determination of VR from
Sec. 23.53(a) to Sec. 23.51(a) with minor changes in the specified
rotation speed. For multiengine airplanes in proposed paragraph (a)(1),
the margin between rotation speed and VMC or a margin of 1.10
VS1 is established between VR and stall.
The FAA proposed to define VR, in proposed paragraph (a), as
the speed at which the pilot makes a control input with the intention
of lifting the airplane out of contact with the runway or water
surface. This definition would apply to tail wheel and tricycle gear
airplanes, seaplanes, and single-engine airplanes.
The FAA also proposed to include rotation speeds for single-engine
airplanes, seaplanes, and amphibians in paragraph (a). This extends
VR applicability to all part 23 airplanes to establish a safe and
standardized procedure that can be used by pilots to achieve AFM
takeoff performance. This use of rotation speed is consistent with part
25.
In proposed paragraph (b), the speed at 50 feet is based on current
Sec. 23.53(b) with no change in requirements.
For commuter category airplanes, the FAA proposed to move the
takeoff speed requirements from Sec. 23.53(c) to proposed Sec. 23.51(c)
with editorial changes. The option is added, in proposed (c)(1)(i), for
an applicant to determine a VMCG and to establish a V1 based
on VMCG rather than a margin above VMCA.
The only comment on this section was a non-substantive one, in
which FAA concurred.
The proposal is adopted as proposed.
Section 23.53 Takeoff Performance
The FAA proposed a new heading for Sec. 23.53 and a content based
primarily on the general takeoff performance requirement of the current
Sec. 23.51.
The FAA proposed to remove the takeoff speed requirements from
current Sec. 23.53 and to place them in Sec. 23.51. (See discussion for
Sec. 23.51.) Section 23.53 provides general takeoff performance
requirements for normal, utility, acrobatic, and commuter category
airplanes. Proposed paragraph (a) is based on current Sec. 23.51(a).
Proposed paragraph (b) is a modification of current Sec. 23.1587(a)(5).
Proposed paragraph (c) is based on current Sec. 23.51(d).
No comments were received on the proposals for this section, and
they are adopted as proposed.
Section 23.55 Accelerate-Stop Distance
The FAA proposed to revise Sec. 23.55 to clarify the accelerate-
stop segments and to make editorial changes.
The proposed requirement divides the accelerate-stop maneuver into
three segments, rest to VEF (paragraph (a)(1)), VEF to
V1 (paragraph (a)(2)), and V1 to rest (paragraph (a)(3)). The
FAA proposed to remove the following four phrases: First, remove the
phrase ``in the case of engine failure,'' from current Sec. 23.55(a)(2)
because it is included in paragraph (a)(2). Second, remove the phrase
``assuming that * * * the pilot has decided to stop as indicated by
application of the first retarding means at the speed V1,'' from
Sec. 23.55(a)(2) because it is stated in Sec. 23.51(c)(1)(ii). Third,
remove the phrase ``exceptional skill'' from Sec. 23.55(b)(3) because
it remains in Sec. 23.45(h)(5)(i). Fourth, remove the phrase ``if that
means is available with the critical engine inoperative'' from
Sec. 23.55(b) because it is covered by the safe and reliable
requirements of Sec. 23.55(b)(1).
No comments were received on the proposals for this section, and
they are adopted as proposed.
Section 23.57 Takeoff Path
The FAA proposed to revise Sec. 23.57 to clarify and to specify the
takeoff path segments that must be determined in flight. Proposed
paragraph (a) clarifies that the transition to the enroute
configuration should be completed on or before reaching 1500 feet above
the takeoff surface. Section 23.57(c)(1) requires the slope of the
airborne part of the takeoff path to be ``positive at each point'';
proposed paragraph (c)(1) is revised to ``not negative at any point,''
to allow acceleration in level flight,
[[Page 5174]]
which is implied by current Sec. 23.61(c). Proposed Sec. 23.57(c)(3)
specifies that the climb gradient ``must not be less than * * *,'' as
opposed to ``may not be less than * * *.'' The option, in current
Sec. 23.57(d), to determine the takeoff path either by continuous
demonstration or by synthesis from segments, does not reflect current
practice. The best method to determine the takeoff path from rest to 35
feet above the takeoff surface is by a continuous demonstration. The
most practical method to determine the takeoff path from 35 feet to
1500 feet above the takeoff surface is by synthesis from segments.
Accordingly, Sec. 23.57, paragraphs (d) and (e), incorporates these
changes.
No comments were received on the proposals for this section, and
they are adopted as proposed.
Section 23.59 Takeoff Distance and Takeoff Run
The FAA proposed to clarify Sec. 23.59 with no substantial change
in requirements. A change to the opening text is proposed to clarify
that the determination of takeoff run is the applicant's option since
the applicant may choose not to present clearway data. In current
Sec. 23.59 (a)(2) and (b)(2), the reference to ``along the takeoff
path,'' in a takeoff with all engines operating, is proposed to be
removed since takeoff path is a one-engine-inoperative condition.
Additionally, the FAA proposed to replace the reference to VLOF
with the words ``liftoff point'' to clarify that the requirements
specify a point and related distance, not a speed.
No comments were received on the proposals for this section, and
they are adopted as proposed.
Section 23.63 Climbs: General
The FAA proposed a new Sec. 23.63 to assemble general climb
requirements from current Secs. 23.65 and 23.67 into a single section
and to differentiate between WAT limited airplanes and those airplanes
that are not WAT limited. (See discussion under Sec. 23.45.) As
proposed, new Sec. 23.63(a)(1) requires that compliance be shown out of
ground effect. This requirement is in current Sec. 23.67(e), which
applies to commuter category airplanes. New Sec. 23.63(a)(3) requires
that compliance must be shown, unless otherwise specified, with one
engine inoperative, at a bank angle not exceeding 5 degrees. This
requirement is in current Sec. 23.149 and has been applied generally to
part 23 airplanes except commuter category airplanes in certain
circumstances.
No comments were received on the proposals for this section, and
they are adopted as proposed.
Section 23.65 Climb: All Engines Operating
The FAA proposed to change the applicability of Sec. 23.65(a) from
``each airplane,'' as adopted in Amendment No. 23-45 (58 FR 42136,
August 6, 1993), to ``each normal, utility, and acrobatic category
reciprocating engine-powered airplane of 6,000 pounds or less maximum
weight.'' The FAA also proposed to change the phrase ``angle of climb''
to ``climb gradient'' and to establish the climb gradient at 8.3
percent for landplanes and 6.7 percent for seaplanes and amphibians
with certain specified performance conditions.
In paragraph (a)(4), the FAA proposed to establish a minimum climb
speed for multiengine airplanes of not less than the greater of 1.1
VMC and 1.2 VS1, which provides a margin above VMC.
The FAA proposed to move cowl flap requirements, in current
paragraph (a)(5), to proposed Sec. 23.45(c).
The FAA proposed to remove Sec. 23.65(b) since these requirements
should have been removed in Amendment No. 23-45 (58 FR 42136, August 6,
1993). Since the adoption of Amendment No. 23-45, there is no longer a
rate of climb requirement in Sec. 23.65(a).
The FAA proposed to add WAT limits to Sec. 23.65(b), for
reciprocating engine-powered airplanes of more than 6,000 pounds
maximum weight and turbine engine-powered airplanes. (See Sec. 23.45
discussion.)
The FAA proposed to move Sec. 23.65(c) to Sec. 23.65(b) and to
remove the temperature and altitude requirements since WAT limits are
required for turbine engine-powered airplanes and the four percent
gradient applies at any approved takeoff ambient condition. In
Sec. 23.65(b)(2), the FAA proposed to require the landing gear be down
for the test unless the gear can be retracted in not more than seven
seconds. This is more stringent than the present requirement, but the
same as the proposed one-engine-inoperative takeoff climb requirements,
and is considered appropriate to this weight and class of airplane with
WAT limits.
The FAA proposed to remove Sec. 23.65(d) since the requirements are
covered in amended Sec. 23.45(h)(2) and in current Sec. 23.21.
No comments were received on the proposals for this section, and
they are adopted as proposed.
Section 23.66 Takeoff Climb; One-Engine Inoperative
The FAA proposed a new Sec. 23.66 to require the determination of
the one-engine-inoperative climb capability of all WAT limited
reciprocating engine-powered and turbine engine-powered airplanes
immediately after takeoff. Since most reciprocating engine-powered
airplanes do not have autofeather, the condition immediately after
takeoff can be critical. There is not a minimum climb requirement in
this configuration, only the determination of the climb or decent
gradient. This information is provided to the pilot in the AFM (see
Sec. 23.1587) to allow the pilot to make informed judgments before
takeoff.
No comments were received on the proposal for this section, and it
is adopted as proposed.
Section 23.67 Climb: One Engine Inoperative
The FAA proposed to reorganize Sec. 23.67 for harmonization with
the JAR; to require WAT limits for some airplanes; to require wings
level climb up to 400 feet for commuter category airplanes; and to make
minor changes in airplane configuration requirements.
Revised Sec. 23.67(a) specifies the climb requirements for non-WAT
airplanes with no change in requirements for those airplanes.
Revised Sec. 23.67(b) specifies climb requirements for WAT
airplanes. WAT criteria are applied for both reciprocating engine-
powered airplanes of more than 6,000 pounds maximum weight and turbine
engine-powered airplanes. (See the discussion under Sec. 23.45.)
Turbine engine-powered airplanes have been subject to limited WAT
limitations under Sec. 23.67(c), which the FAA proposed to incorporate
into Sec. 23.67(b).
The FAA proposed to change the takeoff flap position for normal,
utility, and acrobatic category reciprocating engine-powered airplanes
of 6,000 pounds or less to ``wing flaps retracted'' from ``most
favorable position'' (Sec. 23.67(a)(4)). Wing flaps retracted is the
position most used in certification and in service for this size of
airplane (see new Sec. 23.67 (a)(1)(iv) and (a)(2)(iv)).
The FAA proposed to remove Sec. 23.67(d) since all climb speeds
(both all-engine and one engine inoperative) are scheduled and the
determination of VY is no longer required.
The FAA proposed to redesignate Sec. 23.67(e) for commuter category
airplanes as Sec. 23.67(c) with no change in requirements except that
the takeoff climb with landing gear extended must be conducted with the
landing gear doors open. This is a conservative approach offered by the
JAA to specify a definite gear door configuration and to remove the
requirement to determine
[[Page 5175]]
performance during the transient condition of gear doors opening and
closing. The FAA proposed to specify, in Sec. 23.67(c)(1), that the
first segment climb must be conducted with the wings level and to
further specify that the climb speed for the segment must be V2
instead of the requirement for a range of speeds from VLOF and
whatever the applicant selects at gear retraction. Also, the FAA
proposed, in Sec. 23.67(c)(2), to require conducting the second segment
climb with wings level, which is appropriate for operational scenarios.
The FAA proposed to revise Sec. 23.67 by removing paragraph (e)(1)
and by moving the requirements to Sec. 23.67(c) and Sec. 23.63 (a)(1)
and (d).
In proposed Sec. 23.67(c)(3), enroute climb, the FAA added a
minimum climb speed to ensure an adequate margin above stall speed.
The FAA proposed to redesignate Sec. 23.67(e)(3) as
Sec. 23.67(c)(4) and to remove the paragraph heading ``Approach'' and
add ``Discontinued approach'' in its place. The FAA proposed to
clarify, in new Sec. 23.67(c)(4), that the climb gradients must be met
at an altitude of 400 feet above the landing surface.
No comments were received on the proposals for this section, and
they are adopted as proposed.
Section 23.69 Enroute Climb/Descent
The FAA proposed a new Sec. 23.69 to require the determination of
all engine and one-engine-inoperative climb/descent rates and gradients
in the enroute configuration under all operational WAT conditions. This
information is necessary for enroute flight planning and dispatch.
Climb speeds are specified to provide a margin above VS1.
No comments were received on the proposal for this section, and it
is adopted as proposed.
Section 23.71 Glide: Single-Engine Airplanes
The FAA proposed a new Sec. 23.71 to require the determination of
glide distance and speed for single-engine airplanes. The information
is necessary for flight planning and to provide the pilot with
information from which to make informed decisions.
No comments were received on the proposal for this section, and it
is adopted as proposed.
Section 23.73 Reference Landing Approach Speed
The FAA proposed a new Sec. 23.73 to define the reference landing
approach speeds, VREF. Establishing a definition for these speeds
simplifies the use of VREF in other portions of the rule. The
VREF speeds for the various category airplanes are established as
not less than 1.3 VS0. Also, the established speeds consider the
appropriate relationship to VMC determined under Sec. 23.149.
No comments were received on the proposal for this section, and it
is adopted as proposed.
Section 23.75 Landing Distance
The FAA proposed to revise the heading, reorganize Sec. 23.75 for
harmonization with the JAR, add the landing reference speed, VREF,
and move the portion on brake pressure to Sec. 23.735, Brakes.
The FAA proposed to remove the reference to the AFM from the
introductory paragraph. Part 23, subpart B, is generally used to
specify flight test requirements, and part 23, subpart G, is generally
used to specify the AFM requirements. The FAA also proposed to revise
the introductory paragraph to require landing distances to be
determined at standard temperature for each weight and altitude.
Service experience has shown that landing distances are not sensitive
to temperatures. The use of standard temperature is consistent with WAT
requirements. The FAA proposed to remove from the introductory
paragraph the reference to ``approximately 3 knots'' for seaplanes and
amphibians because this information is considered advisory material on
acceptable methods of compliance.
The FAA proposed to revise Sec. 23.75(a) to add VREF and to
require its use. (See Sec. 23.73.)
The FAA proposed to remove Sec. 23.75(b) because Sec. 23.45
specifies these general requirements. New Sec. 23.75(b) clarifies that
a constant configuration must be maintained throughout the maneuver.
The FAA proposed to revise Sec. 23.75(d) by adding the requirement
to specify the weight that must be considered for the transition to the
balked landing conditions. This requirement reflects current industry
practice.
The FAA proposed new Sec. 23.75(e) as a general requirement to
ensure the reliability of the brakes and tires.
The FAA proposed to revise Sec. 23.75(f) to remove the first use of
the word ``means'' and to add the phrase ``retardation means'' in its
place, and to remove paragraph (f)(3). Paragraph (f)(3) required that
no more than average skill shall be required to control the airplane.
This topic is covered in Sec. 23.45(f).
The FAA proposed to remove Sec. 23.75(h) because the introductory
paragraph of Sec. 23.75 contains commuter category requirements and
Sec. 23.1587 requires landing distance correction factors.
No comments were received on the proposals for this section, and
they are adopted as proposed.
Section 23.77 Balked Landing
The FAA proposed to revise this section to include additional WAT
requirements and to make editorial changes.
The proposed revisions to Sec. 23.77 (a) and (b) differentiate
between WAT and non-WAT. (See Sec. 23.45.) Section 23.77(a)(4) adds a
new climb speed requirement to ensure that acceleration is not
necessary during the transition from landing to balked landing. The
climb gradient of Sec. 23.77(b) was selected to be slightly less than
the non-WAT airplane sea level requirement in exchange for a balked
landing climb capability at all altitudes and temperatures.
The commuter category climb gradient of 3.3 percent specified in
Sec. 23.77(c) changes to 3.2 percent for consistency with part 25.
Additional editorial changes and deletions are made in Sec. 23.77(c)
because the general requirements are covered in final Sec. 23.45.
No comments were received on the proposals for this section, and
they are adopted as proposed.
Section 23.143 General
The FAA proposed to revise Sec. 23.143(a) to add the phrase
``during all flight phases'' to the introductory paragraph and to add
``Go-around'' to the list of flight phases.
The JAA and FAA decided, during FAA/JAA Harmonization meetings,
that the term ``go-around'' included the all engine balked landings of
Sec. 23.77, various all engine and one-engine-inoperative aborted
landings specified in the AFM, and the commuter category discontinued
approach of Sec. 23.67(c)(4). Balked landing refers only to the all
engine balked landing of Sec. 23.77.
The FAA proposed to revise the two-hand roll force in the table of
paragraph (c) from 60 to 50 pounds, to be consistent with JAR 25. The
FAA also proposed to revise the table to show a one-hand on the rim
roll force of 25 pounds. This is an FAA/JAA harmonized value.
Comment: Raytheon Aircraft Company comments that the control force
limits table is specifically tied to the flight phases of paragraph (a)
and that this ``could be interpreted as providing an upper limit of
maneuvering force (stick force per g) such that all normal operational
[[Page 5176]]
maneuvers would have to be performed within a pitch force limit of 75
lbs (wheel, two hands), for unspecified normal acceleration limits.''
Raytheon states that this has not been previous policy and could
become a costly requirement for larger part 23 aircraft with large cg
ranges, ``if substantial normal acceleration excursions are considered
`normal' maneuvering.'' Raytheon recommends ``that either the normal
acceleration excursions be defined for normal, utility, acrobatic, and
commuter categories or the explicit tie to the flight phases in this
rule be deleted.''
FAA Response: Raytheon's concern is whether ``normal acceleration
excursions are considered `normal' maneuvering.'' They are not.
Section 23.143 has historically been titled ``General'' and has
always been considered broad enough to cover controllability and
maneuverability in general. The inclusion of ``all flight phases'' is
considered clarifying, and Raytheon's concern that the concept of
normal being expanded is unwarranted. Adopting this proposal would not
change current certification practice.
The proposals are adopted as proposed.
Section 23.145 Longitudinal Control
The FAA proposed to revise Sec. 23.145 to change the speed ranges
applicable to the takeoff, enroute, and landing configurations.
Editorial changes were also proposed for the introductory text of
paragraph (b) with no substantive change.
The FAA proposed in paragraph (b)(2) to change the requirement from
``attaining and maintaining, as a minimum, the speed used to show
compliance with Sec. 23.77'' to ``allow the airspeed to transition from
1.3 VS0 to 1.3 VS1.''
The FAA also proposed to redesignate paragraphs (b)(2) (i) and (ii)
as (b)(2) and (b)(3), respectively, and in paragraph (b)(3) to add more
specific requirements if gated flap positions are used.
The FAA proposed to change the speed reference from 1.4 VS0 to
VREF for landing configuration in paragraph (b)(5). The FAA also
proposed in paragraph (b)(5) to allow a two-handed control force since
use of two hands is considered appropriate for a power off condition
because the pilot does not need to change power settings.
Proposed paragraph (b)(6) is the same as former paragraph (b)(3).
In paragraph (c), the FAA proposed to change the speed range for
maneuvering capability from ``above VMO/MMO and up to
VD/MD'' to ``above VMO/MMO and up to the maximum
speed shown under Sec. 23.251.'' This change is considered necessary
because a range of speeds can be chosen as VD/MD, and
reference to Sec. 23.251 ensures a flight demonstrated speed instead of
a design speed.
The FAA proposed in paragraph (d) to change the speed that must be
maintained for power-off glide from 1.3 VS0 to VREF.
No comments were received on the proposals for this section, and
they are adopted as proposed.
Section 23.147 Directional and Lateral Control
The FAA proposed to make minor revisions to Sec. 23.147(a) and to
add two new requirements in proposed paragraphs (b) and (c). The flaps
retracted configuration for Sec. 23.147(a)(4) are consistent with
proposed Sec. 23.67.
In proposed Sec. 23.147(b), the FAA proposed to add requirements
for multiengine airplanes that, during an enroute climb, when an engine
fails the airplane maintains a minimum standard of controllability
after allowing for a pilot action delay of two seconds. This proposed
change tests for a likely operational scenario and is intended to
ensure satisfactory controllability.
In Sec. 23.147(c), the FAA proposed to test for the failure or
disconnection of the primary lateral control. This paragraph requires
that the airplane exhibit adequate dihedral effect throughout the
airplane's operational envelope to ensure continued safe flight and
landings if a lateral control disconnects. In addition, this
requirement complements the relaxed requirements of proposed
Sec. 23.177(b) (see proposal for Sec. 23.177).
Comment: Raytheon comments that there is no basis provided for the
new rules proposed in Sec. 23.147 (b) and (c). Raytheon states that the
``two second delay and the 45 degree bank appear to be arbitrary
choices'' and that there ``is no comparable FAR requirement.''
FAA Response: The values of 2 seconds and 45 degrees in proposed
paragraph (b) were determined from Sec. 23.367, ``Unsymmetrical loads
due to engine failure,'' which contains a 2 second delay for pilot
corrective action. Historically, the 2 second delay and the 45 degree
bank angle correlate to a similar requirement used for years by the
United Kingdom CAA.
Proposed paragraph (c), failure of the lateral control, is part of
a reduction in the overall lateral stability requirements. In Amendment
23-45, the FAA reduced the power requirements for Sec. 23.177(a) in the
landing configuration from 75 percent maximum continuous power to the
power required to maintain a three degree angle of descent. The
Sec. 23.177 requirement essentially demonstrated that the airplane had
the wing dihedral effect and rudder control power to raise a low
(banked) wing using rudder only. Prior to this amendment, many
manufacturers had to install an aileron/rudder interconnect to meet
this requirement because of the high power setting. An aileron/rudder
interconnect is a mechanism that ties the two controls together such
that when one control surface deflects, the other will also deflect. In
the case of Sec. 23.177, the pilot uses the rudder, which also deflects
the aileron and raises the wing to level. The underlying intent of this
rule is to demonstrate that the airplane is controllable after an
aileron control failure, similar to the elevator control failure
demonstration currently in the requirements. This change, in
conjunction with Amendment 23-45, will allow manufacturers to eliminate
the need for the aileron/rudder interconnect.
The proposals are adopted as proposed.
Section 23.149 Minimum Control Speed
The FAA proposed to clarify Sec. 23.149, to add a VMC in the
landing configuration, and to provide the procedure for determining a
ground VMC.
The FAA proposed to clarify Sec. 23.149(a), with no requirement
change. The FAA also proposed to clarify Sec. 23.149(b) and to remove
the reference to lesser weights in paragraph (b)(4) because the range
of weights is covered in Sec. 23.21.
The FAA proposed to revise Sec. 23.149(c) to specify the
requirements for a VMC in the landing configuration for all WAT
airplanes. This requirement is necessary for WAT airplanes to provide a
VREF margin above the VMC determined in the landing
configuration. (See proposal for Sec. 23.73.)
The FAA proposed a new Sec. 23.149(f) to contain requirements to
determine a VMCG for commuter category airplanes that could, at
the option of the applicant, be used to comply with Sec. 23.51. (See
Sec. 23.51.)
The only comment came from the JAA, which addressed a known
disharmony, VSSE, from a previous rule change.
The proposals are adopted as proposed.
Section 23.153 Control During Landings
The FAA proposed to revise Sec. 23.153 to reference landing speeds
to VREF and to reorganize the section.
[[Page 5177]]
No comments were received on the proposal for this section, and it
is adopted as proposed.
Section 23.155 Elevator Control Forces in Maneuvers
The FAA proposed to revise Sec. 23.155 to make changes to the power
requirements and gradient of the stick force curve.
The FAA proposed to revise Sec. 23.155(b) to specify the maximum
continuous power for the test required by this section instead of
allowing a power selected by the applicant as an operating limitation.
This revision eliminates an unnecessary power specification and
simplifies normal operations for the pilot.
The FAA proposed to revise Sec. 23.155(c) to address stick force
gradient to ensure that stick force lightening is not excessive. As
stated in the preamble to Notice 94-22, the FAA will issue advisory
material on acceptable methods of compliance.
Comment: Raytheon states that proposed paragraph (c) adds a new
requirement that there must not be an ``excessive decrease'' in the
gradient of the stick force per g with increasing load factor.
Raytheon's concern is that this is a very loosely defined requirement
and that the allowable decrease in maneuvering stability may be a
function of aircraft size and mission.
FAA Response: The FAA agrees that every airplane is different and
that, therefore, each must be considered separately. The FAA does not
agree that paragraph (c) is loosely defined. For many of the flight
requirements, including ``excessive decrease,'' the FAA must evaluate
the individual airplanes to determine if the handling qualities are
safe.
This proposal are adopted as proposed.
Section 23.157 Rate of Roll
The FAA proposed to revise Sec. 23.157(d) power and trim
requirements and to clarify the flap position. In Sec. 23.157(d)(1),
the FAA proposed to clarify that the flaps should be in the landing
position and Sec. 23.157(d)(3) makes the power consistent with the
approach configuration, which is the configuration being tested. The
FAA proposed in Sec. 23.157(d)(4) to relate the trim speed to
VREF. (See amendment for Sec. 23.73.)
No comments were received on the proposals for this section, and
they are adopted as proposed.
Section 23.161 Trim
The FAA proposed to revise Sec. 23.161 power, configurations, and
speeds.
The FAA proposed to revise Sec. 23.161(a) to state the safety
principles underlying the trim requirements and to provide a regulatory
requirement for considering conditions that might be encountered
outside the requirements addressed in paragraphs (b) through (d).
The FAA proposed to revise Sec. 23.161(b)(1) to add a requirement
to trim at MMO in addition to VMO to clarify that the
airplane must trim in the Mach limited speed range.
The FAA proposed to revise Sec. 23.161(b)(2) to require lateral and
directional trim over a range of 1.4 VS1 to VH or VMO/
MMO for commuter category airplanes instead of only the high speed
requirement in the present rules.
The FAA proposed, in the introductory paragraph of Sec. 23.161(c),
to remove the reference to VMO/MMO because it is covered in
the applicable individual sections. In Sec. 23.161(c)(1), the FAA
proposed to require trim at takeoff power, as this is a likely
operational scenario for most airplanes and the condition should be
tested. In addition, the change relates the maximum continuous power
climb speeds and configuration to Sec. 23.69, the enroute climb
requirement. The FAA proposed to redesignate Sec. 23.161(c)(2) as
Sec. 23.161(c)(4), to change the reference VREF for a landing
speed, and to add a requirement for the airplane to trim at the
steepest landing approach gradient the applicant chooses under
Sec. 23.75. The FAA proposed to redesignate Sec. 23.161(c)(3) as
Sec. 23.161(c)(2) with editorial changes and to redesignate
Sec. 23.161(c)(4) as Sec. 23.161(c)(3) with an increase in the trim
speed from 0.9 VNO or VMO to VNO or VMO/MMO.
The increase in trim speed is appropriate because descent is permitted
and is common at VMO.
In Sec. 23.161(d), the FAA proposed to make editorial changes in
the introductory paragraph, to reference the appropriate Sec. 23.67
requirements, and to remove commuter category speed ranges, which are
moved to the new Sec. 23.161(e). The FAA proposed to revise
Sec. 23.161(d)(4) to specify flaps retracted instead of referencing the
Sec. 23.67 configurations. Flaps retracted is the likely sustained
configuration where a pilot would need to trim. Also, the flaps
retracted configuration for Sec. 23.161(d)(4) is consistent with
Sec. 23.67.
The FAA proposed a new Sec. 23.161(e) to ensure that excessive
forces are not encountered in commuter category airplanes during
extended climbs at V2 in the takeoff configuration, when climb
above 400 feet is required.
No comments were received on the proposals for this section, and
they are adopted as proposed.
Section 23.175 Demonstration of Static Longitudinal Stability
The FAA proposed to revise Sec. 23.175(a)(1) to change the flap
position from the climb position to the flaps retracted position. This
is a clarifying change since virtually all part 23 airplanes use the
flaps retracted position for climb. Also, this change aligns the part
23 and part 25 climb static longitudinal stability requirements.
The FAA proposed, in Sec. 23.175(a)(3), to remove the option for
the applicant to select some power other than maximum continuous power
as an operating limitation. As noted in the discussion of Sec. 23.155,
this eliminates a power specification that is unnecessary and
simplifies normal operations for the pilot. In Sec. 23.175(a)(4), the
FAA proposed to make the trim speed consistent with the enroute all-
engine climb speed.
The FAA proposed in Sec. 23.175(b) to rearrange the paragraph with
no change in requirements. The definition of VFC/MMC
contained in Sec. 23.175(b)(2) is moved to part 1, to harmonize with
JAR 1. (See the change to Sec. 1.1.)
The FAA proposed to remove Sec. 23.175(c). The test for gear down
cruise static longitudinal stability required under paragraph (c) is
considered superfluous to the landing configuration static longitudinal
stability test and does not represent a likely operating scenario.
The FAA proposed to redesignate Sec. 23.175(d) as Sec. 23.175(c)
with a change to VREF as the trim speed.
No comments were received on the proposals for this section, and
they are adopted as proposed.
Section 23.177 Static Directional and Lateral Stability
The FAA proposed to revise Sec. 23.177 to remove the requirements
for two-control airplanes, to make minor clarifying changes, and to
specify an exclusion for acrobatic category airplanes.
The FAA proposed in Sec. 23.177 to remove the introductory phrase
concerning three-control airplanes, which is consistent with the
removal of the requirements for two-control airplanes in paragraph (b).
The two-control airplane regulations were introduced in 1945 but no
two-control airplanes have been certificated for several decades and no
need is foreseen for these regulations. If an applicant
[[Page 5178]]
proposes a two-control airplane, the FAA would issue special
conditions.
The FAA proposed that, after removing the introductory portion of
Sec. 23.177(a), paragraph (a)(1) would be redesignated as (a). In the
first sentence, ``skid'' is replaced with ``wings level sideslip'' to
clarify the intended maneuver. Also, this change increases the power
requirement for demonstration of directional stability in the landing
configuration. The requirement specifies power necessary to maintain a
three degree angle of descent. Maximum continuous power is considered
appropriate since directional stability should be maintained during a
balked landing, particularly since directional instability is an
undesirable characteristic at any point in the flight envelope. Also,
the FAA proposed to replace VA with VO to be consistent with
Sec. 23.1507.
The FAA proposed, in Sec. 23.177(b), to replace ``any'' with
``all'' in the first sentence to clarify that all landing gear and flap
positions must be addressed. Also, the FAA proposed that the paragraph
specify a minimum speed at which static lateral stability may not be
negative, as 1.3 VS, for all configurations except takeoff. This
is consistent with the other speeds specified in Sec. 23.177(b) and
relieves the requirement for other than takeoff speeds.
The FAA proposed new Sec. 23.177(c) to provide an exclusion for the
dihedral effect for acrobatic category airplanes approved for inverted
flight. This change recognizes that, in full acrobatic airplanes, the
dihedral effect is not a desired characteristic
The addition of Sec. 23.147(c), which ensures lateral control
capability without the use of the primary lateral control system,
compensates for the relieving nature of proposed Sec. 23.177(b) and the
exception from the requirements of Sec. 23.177(b) for acrobatic
category airplanes.
The FAA proposes to redesignate Sec. 23.177(a)(3) as Sec. 23.177(d)
and to remove the next to the last sentence of Sec. 23.177(d),
concerning bank angle and heading. The requirement is not a necessary
test condition and a constant heading during the sideslip may be
impossible in some airplanes.
Comment: Raytheon commented on the requirements for stability in
steady heading slips, which were changed in a previous amendment
(Amendment 23-21; 43 FR 2318; January 16, 1978), and recommended
clarifying language.
FAA Response: As Raytheon noted, the rule language they believe
needs clarification was not addressed in Notice 94-22, and, therefore,
is beyond the scope of this rulemaking.
The proposals are adopted as proposed.
Section 23.201 Wings Level Stall
The FAA proposed to remove the two-control airplane requirements,
altitude loss requirements, and to make clarifying changes in
Sec. 23.201.
The FAA proposed to revise Sec. 23.201(a) to remove the
applicability reference for an airplane with independently controlled
roll and directional controls and to replace the last word ``pitches''
with ``stalls'' since stalls may be defined by other than nose-down
pitching.
The FAA proposed to remove Sec. 23.201(b) since it applies to two-
control airplanes. (See Sec. 23.177 for discussion of two-control
airplane requirements.)
The FAA proposed to divide Sec. 23.201(c) into Sec. 23.201(b),
stall recognition, and Sec. 23.201(c), stall recovery. The FAA
proposed, in Sec. 23.201(b), to clarify that the test should start from
a speed at least 10 knots above the stall speed, with no change in
requirements. The FAA proposed to add Sec. 23.201(c) to specify how
long the control must be held against the stop. This change ensures
that the procedure for determining stall speed is the same procedure
used to test stall characteristics. The FAA proposed to remove the last
sentence of paragraph (c) on the increase of power because it only
applies to altitude loss.
The FAA proposed to remove Sec. 23.201(d), as suggested by the JAA,
since the determination of altitude loss, and its subsequent furnishing
in the AFM, is not considered information useful to the pilot for safe
operation of the airplane.
The FAA proposed new Sec. 23.201(d) based on present
Sec. 23.201(e), to clarify that the roll and yaw limits apply during
both entry and recovery.
The FAA proposed new Sec. 23.201(e) based on former paragraph (f)
with some revisions. During FAA/JAA harmonization meetings, the JAA
pointed out to the FAA that, in high power-to-weight ratio airplanes,
extreme nose-up attitudes were the principal criteria for use of
reduced power, not the presence of undesirable stall characteristics.
The FAA concurs, and, therefore, proposed to remove the phrase
concerning stall characteristics.
No comments were received on the proposals for this section, and
they are adopted as proposed.
Section 23.203 Turning Flight and Accelerated Turning Stalls
The FAA proposed to revise Sec. 23.203 to add the word ``turning''
before ``stalls'' and after ``accelerated'' in the heading, the
introductory text, and in paragraphs (a)(2) and (b)(5). This change
clarifies that accelerated stalls are performed in turning flight. This
clarification reflects current practice.
In Sec. 23.203 (a) and (b), the FAA proposed to reference the stall
definition in current Sec. 23.201(b), which is more specific than the
present general words ``when the stall has fully developed or the
elevator has reached its stop.''
For clarification, the FAA proposed that paragraph (b)(4) be
separated into paragraphs (b)(4) and (b)(5) without substantive change,
and that former paragraph (b)(5) be redesignated as paragraph (b)(6).
The FAA proposed in Sec. 23.203(c)(1) to clarify the wing flap
positions by changing ``each intermediate position'' to ``each
intermediate normal operating position,'' and in Sec. 23.203(c)(4) to
clarify the use of reduced power. (See the final change to
Sec. 23.201(f).)
The FAA proposed new paragraph (c)(6) to be consistent with new
Sec. 23.207(c)(6) configurations (Amendment No. 23-45).
No comments were received on the proposals for this section, and
they are adopted as proposed.
Section 23.205 Critical Engine-Inoperative Stalls
The FAA proposed to remove Sec. 23.205. The stall demonstration
conditions are not realistic because the engine operation and power
asymmetry do not represent conditions likely to accompany an
inadvertent stall in service. Service history shows, however, that
stalls with significant power asymmetry can result in a spin, even on
airplanes that are certificated to the present requirement. Based on
this service history, the FAA determined that the requirement for
demonstrating one-engine-inoperative stalls is not effective in
ensuring that inadvertent stalls with one engine inoperative will have
satisfactory characteristics and be recoverable. Sufficient protection
against the hazard of stalling with one engine inoperative is provided
by the one-engine-inoperative performance requirements and operating
speed margins, coupled with the requirements for determination of
VMC, and the addition of a directional and lateral control test
under Sec. 23.147(b).
No comments were received on the proposal for this section, and the
section is removed as proposed.
Section 23.207 Stall Warning
The FAA proposed, in Sec. 23.207(c), to reference the stall tests
required by
[[Page 5179]]
Sec. 23.201(b) and Sec. 23.203(a)(1) and to specify that during such
tests for one knot per second deceleration stalls, both wings level and
turning, the stall warning must begin at a speed exceeding the stalling
speed by a margin of not less than 5 knots. The FAA proposed to remove
the quantified upper limit in the rule of 10 knots or 15 percent of the
stalling speed. The upper limit has created problems for manufacturers
because of the complex design features required to show compliance. The
upper limit requirement is, in effect, replaced by the nuisance stall
warning provision in Sec. 23.207(d).
The FAA proposed to divide Sec. 23.207(d) into Sec. 23.207 (d) and
(e), with Sec. 23.207(d) on nuisance stall warnings having no change in
requirements. In Sec. 23.207(e), the FAA proposed to remove the bottom
limit of five knots for decelerations greater than one knot per second
and to specify that the stall warning must begin sufficiently before
the stall so that the pilot can take corrective action. This is
considered appropriate because, at the higher deceleration rates of
three to five knots per second, a specified five knots may not be
enough stall warning.
The FAA proposed new Sec. 23.207(f) to allow for a mutable stall
warning system in acrobatic category airplanes, with automatic arming
for takeoff and rearming for landing. This feature allows the pilot to
disengage the warning during acrobatics while retaining the safety
feature during takeoff and landing.
No comments were received on the proposals for this section, and
they are adopted as proposed.
Section 23.221 Spinning
The FAA proposed to change the point to start the one-turn-spin
recovery count, to delete the ``characteristically incapable of
spinning'' option, and to make minor changes in acrobatic category
spins in Sec. 23.221.
The FAA proposed, in Sec. 23.221(a), to replace the exception for
airplanes characteristically incapable of spinning with an exception
for airplanes that demonstrate compliance with the optional spin
resistant requirements of paragraph (a)(2) of this section. Criteria
for an airplane incapable of spinning are unnecessary since criteria
for spin resistant airplanes are provided. As proposed, Sec. 23.221(a)
changed the point at which the count for the one-turn-spin recovery
begins. The change provides a specific point to begin the count by
replacing the phrase ``after the controls have been applied'' with
``after initiation of the first control action for recovery.'' Under
the former rules, if an applicant proposed a multiple step recovery
procedure that starts with the rudder, then the airplane may be
effectively recovered before the start of the recovery count.
The FAA proposed, in Sec. 23.221(a)(1)(ii), to specify that no
control force or characteristic can adversely affect prompt recovery.
This would be an improvement over the present requirement because it
includes yaw and roll as well as pitch control.
The FAA proposed to recodify Sec. 23.221(a)(1) into Sec. 23.221
(a)(1)(i) through (a)(1)(iv) with no changes in the requirements, and
to restate Sec. 23.221(a)(2) on spin resistant airplanes with minor
editorial changes but with no change in requirements.
The FAA proposed to specify, in Sec. 23,221(b), the emergency
egress requirements of Sec. 23.807(b)(5) for those utility category
airplanes approved for spinning, thereby cross-referencing the
requirements of Sec. 23.807 to the flight requirements.
The FAA proposed, in the introductory paragraph of Sec. 23.221(c),
to require acrobatic category airplanes to meet the one-turn-spin
requirements of Sec. 23.221(a). This change is needed because acrobatic
category airplanes should have sufficient controllability to recover
from the developing one-turn-spin under the same conditions as normal
category airplanes. The introductory paragraph also cross-references
Sec. 23.807 for emergency egress requirements.
The FAA proposed, in Sec. 23.221(c)(1), pertaining to acrobatic
category airplanes, to add a requirement for spin recovery after six
turns or any greater number of turns for which certification is
requested. This rule requires recovery within 1.5 turns after
initiation of the first control action for recovery. This requirement
ensures recovery within 1.5 turns if the spin mode changes beyond six
turns. As an alternative, the applicant may stop at six turns and
provide a limitation of six turns.
The FAA proposed, in Sec. 23.221(c)(2), to remove the option to
retract flaps during recovery and to provide the applicant with a
choice of flaps up or flaps deployed for spin approval. The paragraph
continues to prohibit exceeding applicable airspeed limits and limit
maneuvering load factors.
The FAA proposed new Sec. 23.221(c)(4) to ensure that the acrobatic
spins do not cause pilot incapacitation.
The FAA proposed to remove Sec. 23.221(d), relating to airplanes
that are ``characteristically incapable of spinning,'' which has been
in the regulation since at least 1937. In 1942, the present weight,
center of gravity, and control mis-rig criteria were introduced into
Civil Air Regulation (CAR) 03. Since then, the National Aeronautics and
Space Administration (NASA) spin resistant requirements, which are
based on research, have been developed and incorporated in the
regulations by Amendment No. 23-42 (56 FR 344, January 3, 1991). If an
applicant proposes a non-spinable airplane, it would be appropriate to
apply the requirements of Sec. 23.221(a)(2) as proposed in Notice 90-
22.
The only comment on this section was a JAA statement recognizing
this as an existing disharmony.
The proposals are adopted as proposed.
Section 23.233 Directional Stability and Control
The FAA proposed to make minor word changes to Sec. 23.233(a) to
harmonize this section with the corresponding JAR section.
No comments were received on the proposal for this section, and it
is adopted as proposed.
Section 23.235 Operation on Unpaved Surfaces
The FAA proposed to revise the heading of Sec. 23.235 and to remove
water operating requirements, which are moved to new Sec. 23.237.
No comments were received on the proposals for this section, and it
is adopted as proposed.
Section 23.237 Operation on Water
New Sec. 23.237, for operation on water, is the same as the former
Sec. 23.235(b).
The only comment on this section is a JAA statement acknowledging
an existing disharmony.
The proposal is adopted as proposed.
Section 23.253 High Speed Characteristics
The FAA proposed to remove paragraph (b)(1), since the requirement
for piloting strength and skill is covered in Sec. 23.141.
No comments were received on the proposal for this section, and it
is adopted as proposed.
Section 23.562 Emergency Landing Dynamic Conditions
The FAA proposed to change the one engine inoperative climb to
remove the reference in Sec. 23.562(d) and to add it to
Sec. 23.67(a)(1).
The only comment on this section is a JAA statement acknowledging
existing disharmony.
The proposal is adopted as proposed.
[[Page 5180]]
Section 23.1325 Static Pressure System
The FAA proposed to revise Sec. 23.1325(e) to clarify that the
static pressure calibration must be conducted in flight, which is
standard practice, and to remove and reserve Sec. 23.1325(f).
No comments were received on the proposals for this section, and
they are adopted as proposed.
Section 23.1511 Flap Extended Speed
The FAA proposed to remove from Sec. 23.1511(a) references to
Sec. 23.457. Section 23.457 is proposed to be removed in a related
NPRM, Notice No. 94-20 (59 FR 35196, July 8, 1994), on the airframe.
No comments were received on the proposal for this section, and it
is adopted as proposed.
Section 23.1521 Powerplant Limitations
The FAA proposed to amend Sec. 23.1521 to require maximum
temperature be established for takeoff operation and to require an
ambient temperature limit for reciprocating engines in airplanes of
more than 6,000 pounds.
The FAA proposed in Sec. 23.1521(b)(5) to require the establishment
of maximum cylinder head, liquid coolant, and oil temperature limits
for takeoff operation without regard to the allowable time. Previously,
temperature limits were required only if the takeoff power operation is
permitted for more than two minutes. It is appropriate to require
operating temperature limitations because most takeoff operations will
exceed two minutes.
The FAA proposed in Sec. 23.1521(e) to require an ambient
temperature limit for turbine engine-powered airplanes and
reciprocating engine-powered airplanes over 6,000 pounds. These
airplanes are subject to WAT limits and the revision will ensure that
airplane engines will cool at the ambient temperature limit.
No comments were received on the proposals for this section, and
they are adopted as proposed.
Section 23.1543 Instrument Markings: General
The FAA proposed new Sec. 23.1543(c) to require that all related
instruments be calibrated in compatible units. This is considered
essential for safe operation.
No comments were received on the proposal for this section, and it
is adopted as proposed.
Section 23.1545 Airspeed Indicator
The FAA proposed in Sec. 23.1545(b)(5) to delete any one-engine-
inoperative best rate of climb speed marking requirements for WAT
limited airplanes. These airplanes already have scheduled speeds in
case of an engine failure. The FAA proposed that paragraph (b)(5) apply
only to non-WAT airplanes for which the one-engine-operative best rate
of climb speed marking has been simplified to reflect performance for
sea level at maximum weight. Since the blue arc rule was promulgated in
Amendment No. 23-23 (43 FR 50593, October 30, 1978), certification
experience has shown that the marking of an arc is unnecessarily
complicated. For many airplanes, the approved arc was so narrow that
the arc was a line; therefore, final paragraph (b)(5) requires a blue
radial line instead of an arc.
The FAA proposed to revise Sec. 23.1545(b)(6) to retain the
existing VMC requirement for non-WAT airplanes and to remove the
requirement for VMC markings for WAT airplanes since WAT airplanes
already have scheduled speeds in case of engine failure.
No comments were received on the proposals for this section, and
they are adopted as proposed.
Section 23.1553 Fuel Quantity Indicator
The FAA proposed to remove, from Sec. 23.1553, the use of an arc to
show a quantity of unusable fuel. The FAA proposed that the rule
reference the unusable fuel determination and require only a red radial
line, which provides a clearer indication of fuel quantity for pilots.
No comments were received on the proposal for this section, and it
is adopted as proposed.
Section 23.1555 Control Markings
The FAA proposed to add to Sec. 23.1555(e)(2) a requirement that no
controls except emergency controls be red.
Comment: Transport Canada states that certain cockpit controls
serve a dual purpose in that they serve normal aircraft operation
functions as well as emergency functions. Examples are fuel selector
valves and door handles. Transport Canada recommends rule language that
recognizes dual usage.
FAA Response: Transport Canada's statement about the existence of
dual usage controls is correct. The FAA originally intended to address
the dual usage issue in an AC. On further evaluation of the proposed
rule language, dual usage controls would be prohibited, if it were
adopted as proposed. Therefore, an AC could not be used to allow
controls such as the mixture (which is usually red) to continue to be
red without violating the rule. The FAA has incorporated the dual usage
language in the final rule to avoid confusion between the intent of the
rule and the current practice.
The proposal is adopted with the changes mentioned above.
Section 23.1559 Operating Limitations Placard
The FAA proposed to simplify Sec. 23.1559 and to remove duplicate
material while requiring essentially the same information. Most
airplanes currently operate with an AFM and the new rule places
emphasis on using the AFM to define required operating limitations.
No comments were received on the proposal for this section, and it
is adopted as proposed.
Section 23.1563 Airspeed Placards
The FAA proposed to add a new paragraph (c) to Sec. 23.1563. The
new paragraph is applicable to WAT limited airplanes and requires
providing the maximum VMC in the takeoff configuration determined
under Sec. 23.149(b). This is desirable since the VMC is not
marked on the airspeed indicator for these airplanes.
No comments were received on the proposal for this section, and it
is adopted as proposed.
Section 23.1567 Flight Maneuver Placard
The FAA proposed to add new Sec. 23.1567(d) to apply to acrobatic
and utility airplanes approved for intentional spinning, which requires
a placard listing control actions for recovery. New paragraph (d)
proposed to require a statement on the placard that the airplane be
recovered when spiral characteristics occur, or after six turns, or at
any greater number of turns for which certification tests have been
conducted. This paragraph replaces the similar placard requirement in
current Sec. 23.1583(e)(3) for acrobatic category airplanes.
No comments were received on the proposal for this section, and it
is adopted as proposed.
Section 23.1581 General
The FAA proposed to make editorial changes in Sec. 23.1581 that
recognize WAT limited and non-WAT limited airplanes.
In new Sec. 23.1581(a)(3), the FAA proposed to require information
necessary to comply with relevant operating rules. This is a FAR and
JAR harmonization item and is considered necessary because some
operational rules, such as Sec. 135.391, require flight
[[Page 5181]]
planning with one-engine-inoperative cruise speed and/or driftdown
data. For airplanes operated under part 135 in the United States, it
represents no change in requirements.
The FAA proposed Sec. 23.1581(b)(2) to require that only WAT
limited airplane AFM's provide data necessary for determining WAT
limits.
The FAA proposed new Sec. 23.1581(c) to require the AFM units to be
the same as on the instruments.
The FAA proposed new Sec. 23.1581(d) to remove the requirement for
a table of contents. This is considered a format requirement and is not
appropriate for this section, which specifies AFM content. Section
23.1581(d) is replaced by a requirement to present all operational
airspeeds as indicated airspeeds. This adopts current practice.
No comments were received on the proposals for this section, and
they are adopted as proposed.
Section 23.1583 Operating Limitations
The FAA proposed to revise Sec. 23.1583 operating limitations
information for the AFM. The FAA proposed to revise airspeed
limitations for commuter category airplanes, to require AFM limitations
for WAT limited airplanes, to furnish ambient temperature limitations
and smoking restriction information, and to specify types of runway
surfaces.
The FAA proposed, in Sec. 23.1583(a)(3), to make VMO/MMO
airspeed operating limitations applicable only to turbine powered
commuter category airplanes. This is consistent with current practice
since no reciprocating engine-powered commuter category airplanes have
been proposed.
In Sec. 23.1583(c)(3), the FAA proposed to add takeoff and landing
weight limitations for WAT limited airplanes. (See Sec. 23.45.)
The FAA proposed to revise Sec. 23.1583(c)(4) and (c)(5), to
renumber Sec. 23.1583(c)(3) and (c)(4), and to make editorial and
cross-reference changes. In paragraph (c)(4)(ii), the FAA proposed a
new requirement that the AFM include the maximum takeoff weight for
each airport altitude and ambient temperature within the range selected
by the applicant at which the accelerate-stop distance determined under
Sec. 23.55 is equal to the available runway length plus the length of
any stopway, if available. This is currently required for transport
category airplanes and is necessary for harmonization with JAR 23.
In Sec. 23.1583(c)(6), the FAA proposed to establish the zero wing
fuel weight of Sec. 23.343 as a limitation. This provides the pilot
with information necessary to prevent exceeding airplane structural
limits.
The FAA proposed editorial changes to Sec. 23.1583(d) and, in
paragraphs (e)(1) and (e)(2), to remove references to
``characteristically incapable of spinning.'' As discussed under
Sec. 23.221, requirements for ``characteristically incapable of
spinning'' are removed.
In Sec. 23.1583(e)(4), the FAA proposed to add a requirement to
specify limitations associated with spirals, six turn spins, or more
than six turn spins. The requirement for a placard is removed since the
requirement is covered in Sec. 23.1567.
The FAA proposed to revise Sec. 23.1583(e)(5) based on former
paragraph (e)(4) for commuter category airplanes. This restates the
maneuvers as those proposed for commuter category airplanes in
Sec. 23.3.
The FAA proposed to revise the heading of Sec. 23.1583(f) and to
add a limit negative load factor for acrobatic category airplanes.
The FAA proposed to revise Sec. 23.1583(g) to make editorial
changes with no change in requirements and to reference the flight
crews' requirements in Sec. 23.1523. As proposed, Sec. 23.1583(k), (l),
and (m) are redesignated as Sec. 23.1583(i), (j), and (k).
The FAA proposed new Sec. 23.1583(l) to require baggage and cargo
loading limits in the AFM.
The FAA proposed a new Sec. 23.1583(m) to require any special
limitations on systems and equipment in the AFM. This provides the
pilot with information necessary for safe operation of the airplane
systems and equipment.
The FAA proposed a new Sec. 23.1583(n) to require a statement on
ambient temperature limitations. Maximum cooling temperature limits
have been required for turbine powered airplanes by Sec. 23.1521(e);
however, the requirement for the limitation has never been specified in
Sec. 23.1583. Proposed Sec. 23.1583(n) requires both maximum and
minimum temperature limits if appropriate. A minimum temperature limit
provides the pilot with information necessary to avoid airplane damage
during low temperature operations.
The FAA proposed a new Sec. 23.1583(o) to state any occupant
smoking limitations on the airplane in the AFM.
The FAA proposed a new Sec. 23.1583(p) to require the applicant to
state what runway surfaces have been approved.
No comments were received on the proposals for this section, and it
is adopted as proposed.
Section 23.1585 Operating Procedures
The FAA proposed to rearrange the material in Sec. 23.1585(a).
Also, the FAA proposed to add, for all airplanes, a requirement to
paragraph (a) that information in the following areas be included:
Unusual flight or ground handling characteristics; maximum demonstrated
values of crosswinds; recommended speed for flight in rough air;
restarting an engine in flight; and making a normal approach and
landing in accordance with Secs. 23.73 and 23.75. All of these
requirements are in former Sec. 23.1585(a) except for restarting a
turbine engine in flight, which is in former paragraph (c)(5)
pertaining only to multiengine airplanes. The FAA decided that a
restart capability is not required for single reciprocating engine
airplanes for the reasons given in the preamble discussion of proposal
3 in Amendment No. 23-43 (58 FR 18958, April 9, 1993). The requirement
to provide restart information should apply to single turbine engines,
however, since turbine engine designs incorporate a restart capability
and inadvertent shutdowns may occur. The requirement for normal
approach and landing information, in accordance with the landing
requirement in Secs. 23.73 and 23.75, is new. This information is
necessary to enable pilots to achieve the published landing distances
and, if necessary, to safely transition to a balked landing.
The FAA proposed to revise Sec. 23.1585(b) by adding new
requirements, which cover gliding after an engine failure for single-
engine airplanes, to reference the new requirements proposed in
Sec. 23.71.
The FAA proposed to revise Sec. 23.1585(c) to require compliance
with paragraph (a) plus the following requirements from former
paragraph (c): Approach and landing with an engine inoperative; balked
landing with an engine inoperative; and VSSE as determined in
Sec. 23.149. The FAA also proposed to redesignate paragraph (c)
requirements, information on procedures for continuing a takeoff
following an engine failure and continuing a climb following an engine
failure, as proposed (e) for normal, utility, and acrobatic
multiengines.
The FAA proposed to revise Sec. 23.1585(d) to apply to normal,
utility, and acrobatic airplanes, which would have to comply with
paragraph (a) and either (b) or (c). These airplanes must also comply
with the normal takeoff, climb, and abandoning a takeoff procedures,
which were contained in paragraph (a).
[[Page 5182]]
The FAA proposed to revise Sec. 23.1585(c), for normal, utility and
acrobatic multiengine airplanes, to require compliance with proposed
(a), (c), and (d), plus requirements for continuing a takeoff or climb
with one engine inoperative that were in former paragraph (
FR Doc. 96-2082 Airworthiness Standards; Flight Rules Based on European Joint Aviation Requirements
c) (1) and
(2).
The FAA proposed to revise Sec. 23.1585(f) to amend normal takeoff
requirements in former paragraph (a)(2); to add accelerate-stop
requirements; and to continue takeoff after engine failure, which was
in former paragraph (c)(1).
The FAA proposed no substantial changes in Sec. 23.1585 (g) and
(h), which are based on paragraphs (d) and (e), respectively.
The FAA proposed to revise Sec. 23.1585(i) based on former
paragraph (g) on the total quantity of usable fuel and to add
information on the effect of pump failure on unusable fuel.
The FAA proposed a new Sec. 23.1585(j) to require procedures for
safe operation of the airplanes' systems and equipment that, although
not previously required, are current industry practice.
In the proposed revision of Sec. 23.1585(h), the commuter category
airplane procedures for restarting turbine engines in flight would no
longer be necessary because the requirement is covered under paragraph
(a)(4).
Comment: The JAA comments that the JAA does not agree with limiting
the inflight engine restart requirements of proposed paragraph (a)(4)
to turbine engines only.
FAA Response: The JAA comment addresses a known disharmony between
the regulations.
No substantive comment was received, and the proposals are adopted
as proposed.
Section 23.1587 Performance Information
The FAA proposed to revise Sec. 23.1587 to rearrange existing
material, to remove ski plane performance exceptions, to remove the
option of calculating approximate performance, to remove staff altitude
loss data, and to require overweight landing performance in
Sec. 23.1587. Stalling speed requirements of paragraph (c)(2) and (3)
are combined and moved to final paragraph (a)(1) and reference and
stalling speed requirement of Sec. 23.49. Information on the steady
rate and gradient of climb with all engines operating is required by
paragraph (a)(2). This is revised from paragraph (a)(2). The climb
section referenced in existing Sec. 23.1587(a)(2) is removed and
replaced with Sec. 23.69(a).
The FAA proposed to revise paragraph (a)(3) to add that landing
distance determined under Sec. 23.75 must be provided for each airport
altitude, standard temperature, and type of surface for which it is
valid. The FAA proposed to revise paragraph (a)(4) to require
information on the effect on landing distance when landing on other
than hard surface, as determined under Sec. 23.45(g). The FAA proposed
to revise paragraph (a)(5) to cover information on the effects on
landing distance of runway slope and wind. This provides the pilot with
data with which to account for these factors in his or her takeoff
calculations.
The FAA proposed to remove requirements on ski planes from
Sec. 23.1587(b) and to add a requirement for a steady angle of climb/
descent, as determined under Sec. 23.77(a), in its place. This
requirement applies to all non-WAT airplanes.
The FAA proposed to revise paragraph (c) to apply normal, utility,
and acrobatic category airplanes, rather than all airplanes. The FAA
proposed to remove the stall altitude loss requirements from paragraph
(c)(1). As mentioned, the FAA proposed to remove the stalling speed
requirements from paragraphs (c)(2) and (c)(3) and to place them in
paragraph (a)(1). The FAA also proposed to remove paragraph (c)(4) on
cooling climb speed data since most airplanes cool at scheduled speeds.
The FAA proposes to revise paragraph (c)(1) to pertain to the
takeoff distance determined under Sec. 23.53 and to the type of
surface. Proposed paragraphs (c)(2) and (c)(3) pertain to the effect on
takeoff distance of the runway surface, slope, and headwind and
tailwind component.
The FAA proposed to revise paragraph (c)(4) to add a new
requirement pertaining to the one-engine inoperative takeoff climb/
descent performance for WAT-limited airplanes. This pertains only to
reciprocating engine-powered airplanes. It provides the pilot with the
information determined under final Sec. 23.66.
The FAA proposed a new paragraph (c)(5), which pertains to enroute
rate and gradient and climb/descent determined under Sec. 23.69(b), for
multiengine airplanes.
The FAA proposed to revised Sec. 23.1587(d) to incorporate into
commuter category airplanes the present data and accelerate-stop data,
overweight landing performance, and the effect of operation on other
than smooth hard surfaces. In addition, in order to consolidate all of
the requirements for what must appear in the AFM in subpart G, the FAA
proposed that Sec. 23.1587(d)(10) contain the requirement, found in
former Sec. 23.1323(d), to show the relationship between IAS and CAS in
the AFM.
No comments were received on the proposals for this section, and
they are adopted as proposed.
Section 23.1589 Loading Information
The FAA proposed to make editorial changes in Sec. 23.1589(b) to
simplify the text, with no change in requirements.
No comments were received on the proposal for this section, and it
is adopted as proposed.
Appendix E
The FAA proposed to remove Appendix E and to reserve it for the
reasons given in the change to Sec. 23.25.
No comments were received on the proposal, and Appendix E is
removed and reserved as proposed.
Regulatory Evaluation, Regulatory Flexibility Determination, and Trade
Impact Assessment
Changes to Federal regulations must undergo several economic
analyses. First, Executive Order 12866 directs Federal agencies to
promulgate new regulations only if the potential benefits to society
justify its costs. Second, the Regulatory Flexibility Act of 1980
requires agencies to analyze the economic impact of regulatory changes
on small entities. Finally, the Office of Management and Budget directs
agencies to assess the effects of regulatory changes on international
trade. In conducting these assessments, the FAA has determined that
this rule: (1) Will generate benefits exceeding its costs and is
``significant'' as defined in the Executive Order; (2) is
``significant'' as defined in DOT's Policies and Procedures; (3) will
not have a significant impact on a substantial number of small
entities; and (4) will not constitute a barrier to international trade.
These analyses, available in the docket, are summarized below.
Comments Related to the Economics of the Proposed Rule
One comment was received regarding the economics, Sec. 23.143
Controllability and Maneuverability. This comment, as well as the FAA's
response, are included in the section ``Discussion of Amendments.''
Regulatory Evaluation Summary
The FAA has identified 15 sections that will result in additional
compliance costs to one or more airplane categories. Amendments to five
sections will result in cost savings. The greatest costs will be
incurred by manufacturers of WAT
[[Page 5183]]
limited airplanes (e.g., multiengine airplanes with maximum weights of
more than 6,000 pounds). When amortized over a production run, the
incremental costs will have a negligible impact on airplane prices,
less than $100 per airplane.
The primary benefit of the rule will be the cost efficiencies of
harmonization with the JAR for those manufacturers that choose to
market airplanes in JAA countries as well as to manufacturers in JAA
countries that market airplanes in the United States. Other benefits of
the rule will be decreased reliance on special conditions,
simplification of the certification process through clarification of
existing requirements, and increased flexibility through optional
designs.
Regulatory Flexibility Determination
The Regulatory Flexibility Act of 1980 (RFA) was enacted by
Congress to ensure that small entities are not unnecessarily and
disproportionately burdened by Federal regulations. The RFA requires a
Regulatory Flexibility Analysis if a rule will have a significant
economic impact, either detrimental or beneficial, on a substantial
number of small entities. Based on FAA Order 2100.14A, Regulatory
Flexibility Criteria and Guidance, the FAA has determined that the rule
will not have a significant economic impact on a substantial number of
small entities.
International Trade Impact Assessment
The rule will not constitute a barrier to international trade,
including the export of American airplanes to foreign countries and the
impact of foreign airplanes into the United States. Instead, the flight
certification procedures have been harmonized with those of the JAA and
will lessen restraints on trade.
Federalism Implications
The regulations herein will not have substantial direct effects on
the States, on the relationship between the national government and the
States, or on the distribution of power and responsibilities among the
various levels of government. Therefore, in accordance with Executive
Order 12612, it is determined that this rule does not have sufficient
federalism implications to warrant the preparation of a Federalism
Assessment.
Conclusion
The FAA is revising the flight airworthiness standards for normal,
utility, acrobatic, and commuter category airplanes to harmonize them
with the standards of the Joint Aviation Authorities in Europe for the
same category airplanes. The revisions will reduce the regulatory
burden on the United States and European airplane manufacturers by
relieving them of the need to show compliance with different standards
each time they seek certification approval of an airplane in the United
States or in a country that is a member of the JAA.
For the reasons discussed in the preamble, and based on the
findings in the Regulatory Evaluation, the FAA has determined that this
rule is significant under Executive Order 12866. In addition, the FAA
certifies that this rule will not have a significant economic impact,
positive or negative, on a substantial number of small entities under
the criteria of the Regulatory Flexibility Act. This rule is considered
significant under DOT Regulatory Policies and Procedures (44 FR 11034,
February 26, 1979). A regulatory evaluation of the rule has been placed
in the docket. A copy may be obtained by contracting the person
identified under FOR FURTHER INFORMATION CONTACT.
List of Subjects
14 CFR Part 1
Air transportation.
14 CFR Part 23
Aircraft, Aviation safety, Signs and symbols.
The Amendments
In consideration of the foregoing, the Federal Aviation
Administration amends 14 CFR parts 1 and 23 to read as follows:
PART 1--DEFINITIONS AND ABBREVIATIONS
1. The authority citation for part 1 continues to read as follows:
Authority: 49 U.S.C. 106(g), 40113, 44701, 44702, 44704.
2. A new definition is added in alphabetical order to Sec. 1.1 to
read as follows:
Sec. 1.1 General definitions.
* * * * * * *
Maximum speed for stability characteristics, VFC/MFC
means a speed that may not be less than a speed midway between maximum
operating limit speed (VMO/MMO) and demonstrated flight
diving speed (VDF/MDF), except that, for altitudes where the
Mach number is the limiting factor, MFC need not exceed the Mach
number at which effective speed warning occurs.
* * * * *
PART 23--AIRWORTHINESS STANDARDS: NORMAL, UTILITY, ACROBATIC, AND
COMMUTER CATEGORY AIRPLANES
3. The authority citation for part 23 continues to read as follows:
Authority: 49 U.S.C. 106(g), 40113, 44701, 44702, 44704.
4. Section 23.3 is amended by revising paragraphs (b)(2), (d), and
(e) to read as follows:
Sec. 23.3 Airplane categories.
* * * * *
(b) * * *
(2) Lazy eights, chandelles, and steep turns, or similar maneuvers,
in which the angle of bank is more than 60 degrees but not more than 90
degrees.
* * * * *
(d) The commuter category is limited to propeller-driven,
multiengine airplanes that have a seating configuration, excluding
pilot seats, of 19 or less, and a maximum certificated takeoff weight
of 19,000 pounds or less. The commuter category operation is limited to
any maneuver incident to normal flying, stalls (except whip stalls),
and steep turns, in which the angle of bank is not more than 60
degrees.
(e) Except for commuter category, airplanes may be type
certificated in more than one category if the requirements of each
requested category are met.
5. Section 23.25 is amended by revising paragraphs (a) introductory
text and (a)(1) introductory text, and paragraphs (a)(1)(i) and
(a)(1)(iii) to read as follows:
Sec. 23.25 Weight limits.
(a) Maximum weight. The maximum weight is the highest weight at
which compliance with each applicable requirement of this part (other
than those complied with at the design landing weight) is shown. The
maximum weight must be established so that it is--
(1) Not more than the least of--
(i) The highest weight selected by the applicant; or
* * * * *
(iii) The highest weight at which compliance with each applicable
flight requirement is shown, and
* * * * *
6. Section 23.33 is amended by revising paragraphs (b) (1) and (2)
to read as follows:
Sec. 23.33 Propeller speed and pitch limits.
(b) * * *
(1) During takeoff and initial climb at the all engine(s) operating
climb speed
[[Page 5184]]
specified in Sec. 23.65, the propeller must limit the engine r.p.m., at
full throttle or at maximum allowable takeoff manifold pressure, to a
speed not greater than the maximum allowable takeoff r.p.m.; and
(2) During a closed throttle glide, at VNE, the propeller may
not cause an engine speed above 110 percent of maximum continuous
speed.
* * * * *
7. Section 23.45 is revised to read as follows:
Sec. 23.45 General.
(a) Unless otherwise prescribed, the performance requirements of
this part must be met for--
(1) Still air and standard atmosphere; and
(2) Ambient atmospheric conditions, for commuter category
airplanes, for reciprocating engine-powered airplanes of more than
6,000 pounds maximum weight, and for turbine engine-powered airplanes.
(b) Performance data must be determined over not less than the
following ranges of conditions--
(1) Airport altitudes from sea level to 10,000 feet; and
(2) For reciprocating engine-powered airplanes of 6,000 pounds, or
less, maximum weight, temperature from standard to 30 deg.C above
standard; or
(3) For reciprocating engine-powered airplanes of more than 6,000
pounds maximum weight and turbine engine-powered airplanes, temperature
from standard to 30 deg.C above standard, or the maximum ambient
atmospheric temperature at which compliance with the cooling provisions
of Sec. 23.1041 to Sec. 23.1047 is shown, if lower.
(c) Performance data must be determined with the cowl flaps or
other means for controlling the engine cooling air supply in the
position used in the cooling tests required by Sec. 23.1041 to
Sec. 23.1047.
(d) The available propulsive thrust must correspond to engine
power, not exceeding the approved power, less--
(1) Installation losses; and
(2) The power absorbed by the accessories and services appropriate
to the particular ambient atmospheric conditions and the particular
flight condition.
(e) The performance, as affected by engine power or thrust, must be
based on a relative humidity:
(1) Of 80 percent at and below standard temperature; and
(2) From 80 percent, at the standard temperature, varying linearly
down to 34 percent at the standard temperature plus 50 deg.F.
(f) Unless otherwise prescribed, in determining the takeoff and
landing distances, changes in the airplane's configuration, speed, and
power must be made in accordance with procedures established by the
applicant for operation in service. These procedures must be able to be
executed consistently by pilots of average skill in atmospheric
conditions reasonably expected to be encountered in service.
(g) The following, as applicable, must be determined on a smooth,
dry, hard-surfaced runway--
(1) Takeoff distance of Sec. 23.53(b);
(2) Accelerate-stop distance of Sec. 23.55;
(3) Takeoff distance and takeoff run of Sec. 23.59; and
(4) Landing distance of Sec. 23.75.
Note: The effect on these distances of operation on other types
of surfaces (for example, grass, gravel) when dry, may be determined
or derived and these surfaces listed in the Airplane Flight Manual
in accordance with Sec. 23.1583(p).
(h) For commuter category airplanes, the following also apply:
(1) Unless otherwise prescribed, the applicant must select the
takeoff, enroute, approach, and landing configurations for the
airplane.
(2) The airplane configuration may vary with weight, altitude, and
temperature, to the extent that they are compatible with the operating
procedures required by paragraph (h)(3) of this section.
(3) Unless otherwise prescribed, in determining the critical-
engine-inoperative takeoff performance, takeoff flight path, and
accelerate-stop distance, changes in the airplane's configuration,
speed, and power must be made in accordance with procedures established
by the applicant for operation in service.
(4) Procedures for the execution of discontinued approaches and
balked landings associated with the conditions prescribed in
Sec. 23.67(c)(4) and Sec. 23.77(c) must be established.
(5) The procedures established under paragraphs (h)(3) and (h)(4)
of this section must--
(i) Be able to be consistently executed by a crew of average skill
in atmospheric conditions reasonably expected to be encountered in
service;
(ii) Use methods or devices that are safe and reliable; and
(iii) Include allowance for any reasonably expected time delays in
the execution of the procedures.
8. Section 23.49 is revised to read as follows:
Sec. 23.49 Stalling period.
(a) VSO and VS1 are the stalling speeds or the minimum
steady flight speeds, in knots (CAS), at which the airplane is
controllable with--
(1) For reciprocating engine-powered airplanes, the engine(s)
idling, the throttle(s) closed or at not more than the power necessary
for zero thrust at a speed not more than 110 percent of the stalling
speed;
(2) For turbine engine-powered airplanes, the propulsive thrust not
greater than zero at the stalling speed, or, if the resultant thrust
has no appreciable effect on the stalling speed, with engine(s) idling
and throttle(s) closed;
(3) The propeller(s) in the takeoff position;
(4) The airplane in the condition existing in the test, in which
VSO and VS1 are being used;
(5) The center of gravity in the position that results in the
highest value of VSO and VS1; and
(6) The weight used when VSO and VS1 are being used as a
factor to determine compliance with a required performance standard.
(b) VSO and VS1 must be determined by flight tests, using
the procedure and meeting the flight characteristics specified in
Sec. 23.201.
(c) Except as provided in paragraph (d) of this section, VSO
and VS1 at maximum weight must not exceed 61 knots for--
(1) Single-engine airplanes; and
(2) Multiengine airplanes of 6,000 pounds or less maximum weight
that cannot meet the minimum rate of climb specified in Sec. 23.67(a)
(1) with the critical engine inoperative.
(d) All single-engine airplanes, and those multiengine airplanes of
6,000 pounds or less maximum weight with a VSO of more than 61
knots that do not meet the requirements of Sec. 23.67(a)(1), must
comply with Sec. 23.562(d).
9. Section 23.51 is revised to read as follows:
Sec. 23.51 Takeoff speeds.
(a) For normal, utility, and acrobatic category airplanes, rotation
speed, VR, is the speed at which the pilot makes a control input,
with the intention of lifting the airplane out of contact with the
runway or water surface.
(1) For multiengine landplanes, VR, must not be less than the
greater of 1.05 VMC; or 1.10 VS1;
(2) For single-engine landplanes, VR, must not be less than
VS1; and
(3) For seaplanes and amphibians taking off from water, VR,
may be any speed that is shown to be safe under all reasonably expected
conditions, including turbulence and complete failure of the critical
engine.
(b) For normal, utility, and acrobatic category airplanes, the
speed at 50 feet above the takeoff surface level must not be less than:
(1) or multiengine airplanes, the highest of--
[[Page 5185]]
(i) A speed that is shown to be safe for continued flight (or
emergency landing, if applicable) under all reasonably expected
conditions, including turbulence and complete failure of the critical
engine;
(ii) 1.10 VMC; or
(iii) 1.20 VS1.
(2) For single-engine airplanes, the higher of--
(i) A speed that is shown to be safe under all reasonably expected
conditions, including turbulence and complete engine failure; or
(ii) 1.20 VS1.
(c) For commuter category airplanes, the following apply:
(l) V1 must be established in relation to VEF as follows:
(i) VEF is the calibrated airspeed at which the critical
engine is assumed to fail. VEF must be selected by the applicant
but must not be less than 1.05 VMC determined under Sec. 23.149(b)
or, at the option of the applicant, not less than VMCG determined
under Sec. 23.149(f).
(ii) The takeoff decision speed, V1, is the calibrated
airspeed on the ground at which, as a result of engine failure or other
reasons, the pilot is assumed to have made a decision to continue or
discontinue the takeoff. The takeoff decision speed, V1, must be
selected by the applicant but must not be less than VEF plus the
speed gained with the critical engine inoperative during the time
interval between the instant at which the critical engine is failed and
the instant at which the pilot recognizes and reacts to the engine
failure, as indicated by the pilot's application of the first retarding
means during the accelerate-stop determination of Sec. 23.55.
(2) The rotation speed, VR, in terms of calibrated airspeed,
must be selected by the applicant and must not be less than the
greatest of the following:
(i) V1;
(ii) 1.05 VMC determined under Sec. 23.149(b);
(iii) 1.10 VS1; or
(iv) The speed that allows attaining the initial climb-out speed,
V2, before reaching a height of 35 feet above the takeoff surface
in accordance with Sec. 23.57(c)(2).
(3) For any given set of conditions, such as weight, altitude,
temperature, and configuration, a single value of VR must be used
to show compliance with both the one-engine-inoperative takeoff and
all-engines-operating takeoff requirements.
(4) The takeoff safety speed, V2, in terms of calibrated
airspeed, must be selected by the applicant so as to allow the gradient
of climb required in Sec. 23.67 (c)(1) and (c)(2) but mut not be less
than 1.10 VMC or less than 1.20 VS1.
(5) The one-engine-inoperative takeoff distance, using a normal
rotation rate at a speed 5 knots less than VR, established in
accordance with paragraph (c)(2) of this section, must be shown not to
exceed the corresponding one-engine-inoperative takeoff distance,
determined in accordance with Sec. 23.57 and Sec. 23.59(a)(1), using
the established VR. The takeoff, otherwise performed in accordance
with Sec. 23.57, must be continued safely from the point at which the
airplane is 35 feet above the takeoff surface and at a speed not less
than the established V2 minus 5 knots.
(6) The applicant must show, with all engines operating, that
marked increases in the scheduled takeoff distances, determined in
accordance with Sec. 23.59(a)(2), do not result from over-rotation of
the airplane or out-of-trim conditions.
10. Section 23.53 is revised to read as follows:
Sec. 23.53 Takeoff performance.
(a) For normal, utility, and acrobatic category airplanes, the
takeoff distance must be determined in accordance with paragraph (b) of
this section, using speeds determined in accordance with Sec. 23.51 (a)
and (b).
(b) For normal, utility, and acrobatic category airplanes, the
distance required to takeoff and climb to a height of 50 feet above the
takeoff surface must be determined for each weight, altitude, and
temperature within the operational limits established for takeoff
with--
(1) Takeoff power on each engine;
(2) Wing flaps in the takeoff position(s); and
(3) Landing gear extended.
(c) For commuter category airplanes, takeoff performance, as
required by Secs. 23.55 through 23.59, must be determined with the
operating engine(s) within approved operating limitations.
11. Section 23.55 is amended by revising paragraph (a) and the
introductory text of paragraph (b) to read as follows:
Sec. 23.55 Accelerate-stop distance.
* * * * *
(a) The accelerate-stop distance is the sum of the distances
necessary to--
(1) Accelerate the airplane from a standing start to VEF with
all engines operating;
(2) Accelerate the airplane from VEF to V1, assuming the
critical engine fails at VEF; and
(3) Come to a full stop from the point at which V1 is reached.
(b) Means other than wheel brakes may be used to determine the
accelerate-stop distances if that means--
* * * * *
12. Section 23.57 is amended by revising paragraphs (a)
introductory text, (b), (c)(1), (c)(3) introductory text, (c)(4), and
(d); and by adding a new paragraph (e) to read as follows:
Sec. 23.57 Takeoff path.
* * * * *
(a) The takeoff path extends from a standing start to a point in
the takeoff at which the airplane is 1500 feet above the takeoff
surface at or below which height the transition from the takeoff to the
enroute configuration must be completed; and
* * * * *
(b) During the acceleration to speed V2, the nose gear may be
raised off the ground at a speed not less than VR. However,
landing gear retraction must not be initiated until the airplane is
airborne.
(c) * * *
(1) The slope of the airborne part of the takeoff path must not be
negative at any point;
* * * * *
(3) At each point along the takeoff path, starting at the point at
which the airplane reaches 400 feet above the takeoff surface, the
available gradient of climb must not be less than--
* * * * *
(4) Except for gear retraction and automatic propeller feathering,
the airplane configuration must not be changed, and no change in power
that requires action by the pilot may be made, until the airplane is
400 feet above the takeoff surface.
(d) The takeoff path to 35 feet above the takeoff surface must be
determined by a continuous demonstrated takeoff.
(e) The takeoff path to 35 feet above the takeoff surface must be
determined by synthesis from segments; and
(1) The segments must be clearly defined and must be related to
distinct changes in configuration, power, and speed;
(2) The weight of the airplane, the configuration, and the power
must be assumed constant throughout each segment and must correspond to
the most critical condition prevailing in the segment; and
(3) The takeoff flight path must be based on the airplane's
performance without utilizing ground effect.
13. Section 23.59 is amended by revising the introductory text,
paragraph (a)(2), and paragraph (b) to read as follows:
Sec. 23.59 Takeoff distance and takeoff run.
For each commuter category airplane, the takeoff distance and, at
the option of the applicant, the takeoff run, must be determined.
[[Page 5186]]
(a) * * *
(2) With all engines operating, 115 percent of the horizontal
distance from the start of the takeoff to the point at which the
airplane is 35 feet above the takeoff surface, determined by a
procedure consistent with Sec. 23.57.
(b) If the takeoff distance includes a clearway, the takeoff run is
the greater of--
(1) The horizontal distance along the takeoff path from the start
of the takeoff to a point equidistant between the liftoff point and the
point at which the airplane is 35 feet above the takeoff surface as
determined under Sec. 23.57; or
(2) With all engines operating, 115 percent of the horizontal
distance from the start of the takeoff to a point equidistant between
the liftoff point and the point at which the airplane is 35 feet above
the takeoff surface, determined by a procedure consistent with
Sec. 23.57.
14. A new Sec. 23.63 is added to read as follows:
Sec. 23.63 Climb: general.
(a) Compliance with the requirements of Secs. 23.65, 23.66, 23.67,
23.69, and 23.77 must be shown--
(1) Out of ground effect; and
(2) At speeds that are not less than those at which compliance with
the powerplant cooling requirements of Secs. 23.1041 to 23.1047 has
been demonstrated; and
(3) Unless otherwise specified, with one engine inoperative, at a
bank angle not exceeding 5 degrees.
(b) For normal, utility, and acrobatic category reciprocating
engine-powered airplanes of 6,000 pounds or less maximum weight,
compliance must be shown with Sec. 23.65(a), Sec. 23.67(a), where
appropriate, and Sec. 23.77(a) at maximum takeoff or landing weight, as
appropriate, in a standard atmosphere.
(c) For normal, utility, and acrobatic category reciprocating
engine-powered airplanes of more than 6,000 pounds maximum weight, and
turbine engine-powered airplanes in the normal, utility, and acrobatic
category, compliance must be shown at weights as a function of airport
altitude and ambient temperature, within the operational limits
established for takeoff and landing, respectively, with--
(1) Sections 23.65(b) and 23.67(b) (1) and (2), where appropriate,
for takeoff, and
(2) Section 23.67(b)(2), where appropriate, and Sec. 23.77(b), for
landing.
(d) For commuter category airplanes, compliance must be shown at
weights as a function of airport altitude and ambient temperature
within the operational limits established for takeoff and landing,
respectively, with--
(1) Sections 23.67(c)(1), 23.67(c)(2), and 23.67(c)(3) for takeoff;
and
(2) Sections 23.67(c)(3), 23.67(c)(4), and 23.77(c) for landing.
15. Section 23.65 is revised to read as follows:
Sec. 23.65 Climb: all engines operating.
(a) Each normal, utility, and acrobatic category reciprocating
engine-powered airplane of 6,000 pounds or less maximum weight must
have a steady climb gradient at sea level of at least 8.3 percent for
landplanes or 6.7 percet for seaplanes and amphibians with--
(1) Not more than maximum continuous power on each engine;
(2) The landing gear retracted;
(3) The wing flaps in the takeoff position(s); and
(4) A climb speed not less than the greater of 1.1 VMC and 1.2
VS1 for multiengine airplanes and not less than 1.2 VS1 for
single--engine airplanes.
(b) Each normal, utility, and acrobatic category reciprocating
engine-powered airplane of more than 6,000 pounds maximum weight and
turbine engine-powered airplanes in the normal, utility, and acrobatic
category must have a steady gradient of climb after takeoff of at least
4 percent with
(1) Take off power on each engine;
(2) The landing gear extended, except that if the landing gear can
be retracted in not more than sven seconds, the test may be conducted
with the gear retracted;
(3) The wing flaps in the takeoff position(s); and
(4) A climb speed as specified in Sec. 23.65(a)(4).
16. A new Sec. 23.66 is added to read as follows:
Sec. 23.66 Takeoff climb: One-engine inoperative.
For normal, utility, and acrobatic category reciprocating engine-
powered airplanes of more than 6,000 pounds maximum weight, and turbine
engine-powered airplanes in the normal, utility, and acrobatic
category, the steady gradient of climb or descent must be determined at
each weight, altitude, and ambient temperature within the operational
limits established by the applicant with--
(a) The critical engine inoperative and its propeller in the
position it rapidly and automatically assumes;
(b) The remaining engine(s) at takeoff power;
(c) The landing gear extended, except that if the landing gear can
be retracted in not more than seven seconds, the test may be conducted
with the gear retracted;
(d) The wing flaps in the takeoff position(s):
(e) The wings level; and
(f) A climb speed equal to that achieved at 50 feet in the
demonstration of Sec. 23.53.
17. Section 23.67 is revised to read as follows:
Sec. 23.67 Climb: One engine inoperative.
(a) For normal, utility, and acrobatic category reciprocating
engine-powered airplanes of 6,000 pounds or less maximum weight, the
following apply:
(1) Except for those airplanes that meet the requirements
prescribed in Sec. 23.562(d), each airplane with a VSO of more
than 61 knots must be able to maintain a steady climb gradient of at
least 1.5 percent at a pressure altitude of 5,000 feet with the--
(i) Critical engine inoperative and its propeller in the minimum
drag position;
(ii) Remaining engine(s) at not more than maximum continuous power;
(iii) Landing gear retracted;
(iv) Wing flaps retracted; and
(v) Climb speed not less than 1.2 VS1.
(2) For each airplane that meets the requirements prescribed in
Sec. 23.562(d), or that has a VSO of 61 knots or less, the steady
gradient of climb or descent at a pressure altitude of 5,000 feet must
be determined with the--
(i) Critical engine inoperative and its propeller in the minimum
drag position;
(ii) Remaining engine(s) at not more than maximum continuous power;
(iii) Landing gear retracted;
(iv) Wing flaps retracted; and
(v) Climb speed not less than 1.2VS1.
(b) For normal, utility, and acrobatic category reciprocating
engine-powered airplanes of more than 6,000 pounds maximum weight, and
turbine engine-powered airplanes in the normal, utility, and acrobatic
category--
(1) The steady gradient of climb at an altitude of 400 feet above
the takeoff must be measurably positive with the--
(i) Critical engine inoperative and its propeller in the minimum
drag position;
(ii) Remaining engine(s) at takeoff power;
(iii) Landing gear retracted;
(iv) Wing flaps in the takeoff position(s); and
(v) Climb speed equal to that achieved at 50 feet in the
demonstration of Sec. 23.53.
(2) The steady gradient of climb must not be less than 0.75 percent
at an altitude of 1,500 feet above the takeoff surface, or landing
surface, as appropriate, with the--
(i) Critical engine inoperative and its propeller in the minimum
drag position;
(ii) Remaining engine(s) at not more than maximum continuous power;
(iii) Landing gear retracted;
(iv) Wing flaps retracted; and
[[Page 5187]]
(v) Climb speed not less than 1.2 VS1.
(c) For commuter category airplanes, the following apply:
(1) Takeoff; landing gear extended. The steady gradient of climb at
the altitude of the takeoff surface must be measurably positive for
two-engine airplanes, not less than 0.3 percent for three-engine
airplanes, or 0.5 percent for four-engine airplanes with--
(i) The critical engine inoperative and its propeller in the
position it rapidly and automatically assumes;
(ii) The remaining engine(s) at takeoff power;
(iii) The landing gear extended, and all landing gear doors open;
(iv) The wing flaps in the takeoff position(s);
(v) The wings level; and
(vi) A climb speed equal to V2.
(2) Takeoff; landing gear retracted. The steady gradient of climb
at an altitude of 400 feet above the takeoff surface must be not less
than 2.0 percent of two-engine airplanes, 2.3 percent for three-engine
airplanes, and 2.6 percent for four-engine airplanes with--
(i) The critical engine inoperative and its propeller in the
position it rapidly and automatically assumes;
(ii) The remaining engine(s) at takeoff power;
(iii) The landing gear retracted;
(iv) The wing flaps in the takeoff position(s);
(v) A climb speed equal to V2.
(3) Enroute. The steady gradient of climb at an altitude of 1,500
feet above the takeoff or landing surface, as appropriate, must be not
less than 1.2 percent for two-engine airplanes, 1.5 percent for three-
engine airplanes, and 1.7 percent for four-engine airplanes with--
(i) The critical engine inoperative and its propeller in the
minimum drag position;
(ii) The remaining engine(s) at not more than maximum continuous
power;
(iii) The landing gear retracted;
(iv) The wing flaps retracted; and
(v) A climb speed not less than 1.2 VS1.
(4) Discontinued approach. The steady gradient of climb at an
altitude of 400 feet above the landing surface must be not less than
2.1 percent for two-engine airplanes, 2.4 percent for three-engine
airplanes, and 2.7 percent for four-engine airplanes, with--
(i) The critical engine inoperative and its propeller in the
minimum drag position;
(ii) The remaining engine(s) at takeoff power;
(iii) Landing gear retracted;
(iv) Wing flaps in the approach position(s) in which VS1 for
these position(s) does not exceed 110 percent of the VS1 for the
related all-engines-operated landing position(s); and
(v) A climb speed established in connection with normal landing
procedures but not exceeding 1.5 VS1.
18. A new Sec. 23.69 is added to read as follows:
Sec. 23.69 Enroute climb/descent.
(a) All engines operating. The steady gradient and rate of climb
must be determined at each weight, altitude, and ambient temperature
within the operational limits established by the applicant with--
(1) Not more than maximum continuous power on each engine;
(2) The landing gear retracted;
(3) The wing flaps retracted; and
(4) A climb speed not less than 1.3 VS1.
(b) One engine inoperative. The steady gradient and rate of climb/
descent must be determined at each weight, altitude, and ambient
temperature within the operational limits established by the applicant
with--
(1) The critical engine inoperative and its propeller in the
minimum drag position;
(2) The remaining engine(s) at not more than maximum continuous
power;
(3) The landing gear retracted;
(4) The wing flaps retracted; and
(5) A climb speed not less than 1.2 VS1.
19. A new Sec. 23.71 is added to read as follows:
Sec. 23.71 Glide: Single-engine airplanes.
The maximum horizontal distance traveled in still air, in nautical
miles, per 1,000 feet of altitude lost in a glide, and the speed
necessary to achieve this must be determined with the engine
inoperative, its propeller in the minimum drag position, and landing
gear and wing flaps in the most favorable available position.
20. A new Sec. 23.73 is added to read as follows:
Sec. 23.73 Reference landing approach speed.
(a) For normal, utility, and acrobatic category reciprocating
engine-powered airplanes of 6,000 pounds or less maximum weight, the
reference landing approach speed, VREF, must not be less than the
greater of VMC, determined in Sec. 23.149(b) with the wing flaps
in the most extended takeoff position, and 1.3 VSO.
(b) For normal, utility, and acrobatic category reciprocating
engine-powered airplanes of more than 6,000 pounds maximum weight, and
turbine engine-powered airplanes in the normal, utility, and acrobatic
category, the reference landing approach speed, VREF, must not be
less than the greater of VMC, determined in Sec. 23.149(c), and
1.3 VSO.
(c) For commuter category airplanes, the reference landing approach
speed, VREF, must not be less than the greater of 1.05 VMC,
determined in Sec. 23.149(c), and 1.3 VSO.
21. Section 23.75 is amended by revising the section heading,
introductory text, the introductory text of paragraph (a), and
paragraphs (b), (d), (e), and (f); and by removing paragraph (h), to
read as follows:
Sec. 23.75 Landing distance.
The horizontal distance necessary to land and come to a complete
stop from a point 50 feet above the landing surface must be determined,
for standard temperatures at each weight and altitude within the
operational limits established for landing, as follows:
(a) A steady approach at not less than VREF, determined in
accordance with Sec. 23.73 (a), (b), or (c), as appropriate, must be
maintained down to the 50 foot height and--
* * * * *
(b) A constant configuration must be maintained throughout the
maneuver.
* * * * *
(d) It must be shown that a safe transition to the balked landing
conditions of Sec. 23.77 can be made from the conditions that exist at
the 50 foot height, at maximum landing weight, or at the maximum
landing weight for altitude and temperature of Sec. 23.63 (c)(2) or
(d)(2), as appropriate.
(e) The brakes must be used so as to not cause excessive wear of
brakes or tires.
(f) Retardation means other than wheel brakes may be used if that
means--
(1) Is safe and reliable; and
(2) Is used so that consistent results can be expected in service.
* * * * *
22. Section 23.77 is revised to read as follows:
Sec. 23.77 Balked landing.
(a) Each normal, utility, and acrobatic category reciprocating
engine-powered airplane at 6,000 pounds or less maximum weight must be
able to maintain a steady gradient of climb at sea level of at least
3.3 percent with--
(1) Takeoff power on each engine;
(2) The landing gear extended;
(3) The wing flaps in the landing position, except that if the
flaps may safely be retracted in two seconds or less without loss of
altitude and without sudden changes of angle of attack, they may be
retracted; and
[[Page 5188]]
(4) A climb speed equal to VREF, as defined in Sec. 23.73(a).
(b) Each normal, utility, and acrobatic category reciprocating
engine-powered airplane of more than 6,000 pounds maximum weight and
each normal, utility, and acrobatic category turbine engine-powered
airplane must be able to maintain a steady gradient of climb of at
least 2.5 percent with--
(1) Not more than the power that is available on each engine eight
seconds after initiation of movement of the power controls from minimum
flight-idle position;
(2) The landing gear extended;
(3) The wing flaps in the landing position; and
(4) A climb speed equal to VREF, as defined in Sec. 23.73(b).
(c) Each commuter category airplane must be able to maintain a
steady gradient of climb of at least 3.2 percent with--
(1) Not more than the power that is available on each engine eight
seconds after initiation of movement of the power controls from the
minimum flight idle position;
(2) Landing gear extended;
(3) Wing flaps in the landing position; and
(4) A climb speed equal to VREF, as defined in Sec. 23.73(c).
23. Section 23.143 is amended by revising paragraphs (a) and (c) to
read as follows:
Sec. 23.143 General.
(a) The airplane must be safely controllable and maneuverable
during all flight phases including--
(1) Takeoff;
(2) Climb;
(3) Level flight;
(4) Descent;
(5) Go-around; and
(6) Landing (power on and power off) with the wing flaps extended
and retracted.
* * * * *
(c) If marginal conditions exist with regard to required pilot
strength, the control forces necessary must be determined by
quantitative tests. In no case may the control forces under the
conditions specified in paragraphs (a) and (b) of this section exceed
those prescribed in the following table:
------------------------------------------------------------------------
Values in pounds force applied to the
relevant control Pitch Roll Yaw
------------------------------------------------------------------------
(a) For temporary application:
Stick...................................... 60 30 .......
Wheel (Two hands on rim)................... 75 50 .......
Wheel (One hand on rim).................... 50 25 .......
Rudder Pedal............................... ....... ....... 150
(b) For prolonged application................ 10 5 20
------------------------------------------------------------------------
24. Section 23.145 is amended by revising paragraph (b)
introductory text, paragraphs (b)(2) through (b)(5); adding a new
paragraph (b)(6); and revising paragraphs (c) and (d) to read as
follows:
Sec. 23.145 Longitudinal control.
* * * * *
(b) Unless otherwise required, it must be possible to carry out the
following maneuvers without requiring the application of single-handed
control forces exceeding those specified in Sec. 23.143(c). The
trimming controls must not be adjusted during the maneuvers:
* * * * *
(2) With landing gear and flaps extended, power off, and the
airplane as nearly as possible in trim at 1.3 VSO, quickly apply
takeoff power and retract the flaps as rapidly as possible to the
recommended go around setting and allow the airspeed to transition from
1.3 VSO to 1.3 VS1. Retract the gear when a positive rate of
climb is established.
(3) With landing gear and flaps extended, in level flight, power
necessary to attain level flight at 1.1 VSO, and the airplane as
nearly as possible in trim, it must be possible to maintain
approximately level flight while retracting the flaps as rapidly as
possible with simultaneous application of not more than maximum
continuous power. If gated flat positions are provided, the flap
retraction may be demonstrated in stages with power and trim reset for
level flight at 1.1 VS1, in the initial configuration for each
stage--
(i) From the fully extended position to the most extended gated
position;
(ii) Between intermediate gated positions, if applicable; and
(iii) From the least extended gated position to the fully retracted
position.
(4) With power off, flaps and landing gear retracted and the
airplane as nearly as possible in trim at 1.4 VS1, apply takeoff
power rapidly while maintaining the same airspeed.
(5) With power off, landing gear and flaps extended, and the
airplane as nearly as possible in trim at VREF, obtain and
maintain airspeeds between 1.1 VSO, and either 1.7 VSO or
VFE, whichever is lower without requiring the application of two-
handed control forces exceeding those specified in Sec. 23.143(c).
(6) With maximum takeoff power, landing gear retracted, flaps in
the takeoff position, and the airplane as nearly as possible in trim at
VFE appropriate to the takeoff flap position, retract the flaps as
rapidly as possible while maintaining constant speed.
(c) At speeds above VMO/MMO, and up to the maximum speed
shown under Sec. 23.251, a maneuvering capability of 1.5 g must be
demonstrated to provide a margin to recover from upset or inadvertent
speed increase.
(d) It must be possible, with a pilot control force of not more
than 10 pounds, to maintain a speed of not more than VREF during a
power-off glide with landing gear and wing flaps extended, for any
weight of the airplane, up to and including the maximum weight.
* * * * *
25. Section 23.147 is revised to read as follows:
Sec. 23.147 Directional and lateral control.
(a) For each multiengine airplane, it must be possible, while
holding the wings level within five degrees, to make sudden changes in
heading safely in both directions. This ability must be shown at 1.4
VS1 with heading changes up to 15 degrees, except that the heading
change at which the rudder force corresponds to the limits specified in
Sec. 23.143 need not be exceeded, with the--
(1) Critical engine inoperative and its propeller in the minimum
drag position;
(2) Remaining engines at maximum continuous power;
(3) Landing gear--
(i) Retracted; and
(ii) Extended; and
(4) Flaps retracted.
(b) For each multiengine airplane, it must be possible to regain
full control of the airplane without exceeding a bank angle of 45
degrees, reaching a dangerous attitude or encountering dangerous
characteristics, in the event of a sudden and complete failure of the
critical engine, making allowance for a delay of two seconds in the
initiation of recovery action appropriate to the situation, with the
airplane initially in trim, in the following condition:
(1) Maximum continuous power on each engine;
(2) The wing flaps retracted;
(3) The landing gear retracted;
(4) A speed equal to that at which compliance with Sec. 23.69(a)
has been shown; and
[[Page 5189]]
(5) All propeller controls in the position at which compliance with
Sec. 23.69(a) has been shown.
(c) For all airplanes, it must be shown that the airplane is safely
controllable without the use of the primary lateral control system in
any all-engine configuration(s) and at any speed or altitude within the
approved operating envelope. It must also be shown that the airplane's
flight characteristics are not impaired below a level needed to permit
continued safe flight and the ability to maintain attitudes suitable
for a controlled landing without exceeding the operational and
structural limitations of the airplane. If a single failure of any one
connecting or transmitting link in the lateral control system would
also cause the loss of additional control system(s), compliance with
the above requirement must be shown with those additional systems also
assumed to be inoperative.
26. Section 23.149 is revised to read as follows:
Sec. 23.149 Minimum control speed.
(a) VMC is the calibrated airspeed at which, when the critical
engine is suddenly made inoperative, it is possible to maintain control
of the airplane with that engine still inoperative, and thereafter
maintain straight flight at the same speed with an angle of bank of not
more than 5 degrees. The method used to simulate critical engine
failure must represent the most critical mode of powerplant failure
expected in service with respect to controllability.
(b) VMC for takeoff must not exceed 1.2 VS1, where
VS1 is determined at the maximum takeoff weight. VMC must be
determined with the most unfavorable weight and center of gravity
position and with the airplane airborne and the ground effect
negligible, for the takeoff configuration(s) with--
(1) Maximum available takeoff power initially on each engine;
(2) The airplane trimmed for takeoff;
(3) Flaps in the takeoff position(s);
(4) Landing gear retracted; and
(5) All propeller controls in the recommended takeoff position
throughout.
(c) For all airplanes except reciprocating engine-powered airplanes
of 6,000 pounds or less maximum weight, the conditions of paragraph (a)
of this section must also be met for the landing configuration with--
(1) Maximum available takeoff power initially on each engine;
(2) The airplane trimmed for an approach, with all engines
operating, at VREF, at an approach gradient equal to the steepest
used in the landing distance demonstration of Sec. 23.75;
(3) Flaps in the landing position;
(4) Landing gear extended; and
(5) All propeller controls in the position recommended for approach
with all engines operating.
(d) A minimum speed to intentionally render the critical engine
inoperative must be established and designated as the safe,
intentional, one-engine-inoperative speed, VSSE.
(e) At VMC, the rudder pedal force required to maintain
control must not exceed 150 pounds and it must not be necessary to
reduce power of the operative engine(s). During the maneuver, the
airplane must not assume any dangerous attitude and it must be possible
to prevent a heading change of more than 20 degrees.
(f) At the option of the applicant, to comply with the requirements
of Sec. 23.51(c)(1), VMCG may be determined. VMCG is the
minimum control speed on the ground, and is the calibrated airspeed
during the takeoff run at which, when the critical engine is suddenly
made inoperative, it is possible to maintain control of the airplane
using the rudder control alone (without the use of nosewheel steering),
as limited by 150 pounds of force, and using the lateral control to the
extent of keeping the wings level to enable the takeoff to be safely
continued. In the determination of VMCG, assuming that the path of
the airplane accelerating with all engines operating is along the
centerline of the runway, its path from the point at which the critical
engine is made inoperative to the point at which recovery to a
direction parallel to the centerline is completed may not deviate more
than 30 feet laterally from the centerline at any point. VMCG must
be established with--
(1) The airplane in each takeoff configuration or, at the option of
the applicant, in the most critical takeoff configuration;
(2) Maximum available takeoff power on the operating engines;
(3) The most unfavorable center of gravity;
(4) The airplane trimmed for takeoff; and
(5) The most unfavorable weight in the range of takeoff weights.
27. Section 23.153 is revised to read as follows:
Sec. 23.153 Control during landings.
It must be possible, while in the landing configuration, to safely
complete a landing without exceeding the one-hand control force limits
specified in Sec. 23.143(c) following an approach to land--
(a) At a speed of VREF minus 5 knots;
(b) With the airplane in trim, or as nearly as possible in trim and
without the trimming control being moved throughout the maneuver;
(c) At an approach gradient equal to the steepest used in the
landing distance demonstration of Sec. 23.75; and
(d) With only those power changes, if any, that would be made when
landing normally from an approach at VREF.
28. Section 23.155 is amended by revising the introductory text of
paragraph (b) and paragraph (b)(1), and by adding a new paragraph (c)
to read as follows:
Sec. 23.155 Elevator control force in maneuvers.
* * * * *
(b) The requirement of paragraph (a) of this section must be met at
75 percent of maximum continuous power for reciprocating engines, or
the maximum continuous power for turbine engines, and with the wing
flaps and landing gear retracted--
(1) In a turn, with the trim setting used for wings level flight at
VO; and
* * * * *
(c) There must be no excessive decrease in the gradient of the
curve of stick force versus maneuvering load factor with increasing
load factor.
29. Section 23.157 is amended by revising paragraph (d) to read as
follows:
Sec. 23.157 Rate of roll.
* * * * *
(d) The requirement of paragraph (c) of this section must be met
when rolling the airplane in each direction in the following
conditions--
(1) Flaps in the landing position(s);
(2) Landing gear extended;
(3) All engines operating at the power for a 3 degree approach; and
(4) The airplane trimmed at VREF.
30. Section 23.161 is amended by revising paragraphs (a), (b)(1),
(b)(2), (c), the introductory text of paragraph (d), and (d)(4), and by
adding a new paragraph (e) to read as follows:
Sec. 23.161 Trim.
(a) General. Each airplane must meet the trim requirements of this
section after being trimmed and without further pressure upon, or
movement of, the primary controls or their corresponding trim controls
by the pilot or the automatic pilot. In addition, it must be possible,
in other conditions of loading, configuration, speed and power to
ensure that the pilot will not be unduly fatigued or distracted by the
need to apply residual control forces exceeding those for prolonged
application of
[[Page 5190]]
Sec. 23.143(c). This applies in normal operation of the airplane and,
if applicable, to those conditions associated with the failure of one
engine for which performance characteristics are established.
(b) * * *
(1) For normal, utility, and acrobatic category airplanes, at a
speed of 0.9 VH, VC, or VMO/MO, whichever is
lowest; and
(2) For commuter category airplanes, at all speeds from 1.4
VS1 to the lesser of VH or VMO/MMO.
(c) Longitudinal trim. The airplane must maintain longitudinal trim
under each of the following conditions:
(1) A climb with--
(i) Takeoff power, landing gear retracted, wing flaps in the
takeoff position(s), at the speeds used in determining the climb
performance required by Sec. 23.65; and
(ii) Maximum continuous power at the speeds and in the
configuration used in determining the climb performance required by
Sec. 23.69(a).
(2) Level flight at all speeds from the lesser of VH and
either VNO or VMO/MMO (as appropriate), to 1.4 VS1,
with the landing gear and flaps retracted.
(3) A descent at VNO or VMO/MMO, whichever is
applicable, with power off and with the landing gear and flaps
retracted.
(4) Approach with landing gear extended and with--
(i) A 3 degree angle of descent, with flaps retracted and at a
speed of 1.4 VS1;
(ii) A 3 degree angle of descent, flaps in the landing position(s)
at VREF; and
(iii) An approach gradient equal to the steepest used in the
landing distance demonstrations of Sec. 23.75, flaps in the landing
position(s) at VREF.
(d) In addition, each multiple airplane must maintain longitudinal
and directional trim, and the lateral control force must not exceed 5
pounds at the speed used in complying with Sec. 23.67(a), (b)(2), or
(c)(3), as appropriate, with--
* * * * *
(4) Wing flaps retracted; and
* * * * *
(e) In addition, each commuter category airplane for which, in the
determination of the takeoff path in accordance with Sec. 23.57, the
climb in the takeoff configuration at V2 extends beyond 400 feet
above the takeoff surface, it must be possible to reduce the
longitudinal and lateral control forces to 10 pounds and 5 pounds,
respectively, and the directional control force must not exceed 50
pounds at V2 with--
(1) The critical engine inoperative and its propeller in the
minimum drag position;
(2) The remaining engine(s) at takeoff power;
(3) Landing gear retracted;
(4) Wing flaps in the takeoff position(s); and
(5) An angle of bank not exceeding 5 degrees.
31. Section 23.175 is revised to read as follows:
Sec. 23.175 Demonstration of static longitudinal stability.
Static longitudinal stability must be shown as follows:
(a) Climb. The stick force curve must have a stable slope at speeds
between 85 and 115 percent of the trim speed, with--
(1) Flaps retracted;
(2) Landing gear retracted;
(3) Maximum continuous power; and
(4) The airplane trimmed at the speed used in determining the climb
performance required by Sec. 23.69(a).
(b) Cruise. With flaps and landing gear retracted and the airplane
in trim with power for level flight at representative cruising speeds
at high and low altitudes, including speeds up to VNO or VMO/
MMO, as appropriate, except that the speed need not exceed
VH--
(1) For normal, utility, and acrobatic category airplanes, the
stick force curve must have a stable slope at all speeds within a range
that is the greater of 15 percent of the trim speed plus the resulting
free return speed range, or 40 knots plus the resulting free return
speed range, above and below the trim speed, except that the slope need
not be stable--
(i) At speeds less than 1.3 VS1; or
(ii) For airplanes with VNE established under Sec. 23.1505(a),
at speeds greater than VNE; or
(iii) For airplanes with VMO/MMO established under
Sec. 23.1505(c), at speeds greater than VFC/MFC.
(2) For commuter category airplanes, the stick force curve must
have a stable slope at all speeds within a range of 50 knots plus the
resulting free return speed range, above and below the trim speed,
except that the slope need not be stable--
(i) At speeds less than 1.4 VS1; or
(ii) At speeds greater than VFC/MFC; or
(iii) At speeds that require a stick force greater than 50 pounds.
(c) Landing. The stick force curve must have a stable slope at
speeds between 1.1 VS1 and 1.8 VS1 with--
(1) Flaps in the landing position;
(2) Landing gear extended; and
(3) The airplane trimmed at--
(i) VREF, or the minimum trim speed if higher, with power off;
and
(ii) VREF with enough power to maintain a 3 degree angle of
descent.
32. Section 23.177 is revised to read as follows:
Sec. 23.177 Static directional and lateral stability.
(a) The static directional stability, as shown by the tendency to
recover from a wings level sideslip with the rudder free, must be
positive for any landing gear and flap position appropriate to the
takeoff, climb, cruise, approach, and landing configurations. This must
be shown with symmetrical power up to maximum continuous power, and at
speeds from 1.2 VS1 up to the maximum allowable speed for the
condition being investigated. The angel of sideslip for these tests
must be appropriate to the type of airplane. At larger angles of
sideslip, up to that at which full rudder is used or a control force
limit in Sec. 23.143 is reached, whichever occurs first, and at speeds
from 1.2 VS1 to VO, the rudder pedal force must not reverse.
(b) The static lateral stability, as shown by the tendency to raise
the low wing in a sideslip, must be positive for all landing gear and
flap positions. This must be shown with symmetrical power up to 75
percent of maximum continuous power at speeds above 1.2 VS1 in the
take off configuration(s) and at speeds above 1.3 VS1 in other
configurations, up to the maximum allowable speed for the configuration
being investigated, in the takeoff, climb, cruise, and approach
configurations. For the landing configuration, the power must be that
necessary to maintain a 3 degree angle of descent in coordinated
flight. The static lateral stability must not be negative at 1.2
VS1 in the takeoff configuration, or at 1.3 VS1 in other
configurations. The angle of sideslip for these tests must be
appropriate to the type of airplane, but in no case may the constant
heading sideslip angle be less than that obtainable with a 10 degree
bank, or if less, the maximum bank angle obtainable with full rudder
deflection or 150 pound rudder force.
(c) Paragraph (b) of this section does not apply to acrobatic
category airplanes certificated for inverted flight.
(d) In straight, steady slips at 1.2 VS1 for any landing gear
and flap positions, and for any symmetrical power conditions up to 50
percent of maximum continuous power, the aileron and rudder control
movements and forces must increase steadily, but not necessarily in
constant proportion, as the angle of sideslip is increased up to the
maximum appropriate to the type of airplane. At larger slip angles, up
to the angle at which full rudder or aileron control is used or a
control force limit
[[Page 5191]]
contained in Sec. 23.143 is reached, the aileron and rudder control
movements and forces must not reverse as the angle of sideslip is
increased. Rapid entry into, and recovery from, a maximum sideslip
considered appropriate for the airplane must not result in
uncontrollable flight characteristics.
33. Section 23.201 is revised to read as follows:
Sec. 23.201 Wings level stall.
(a) It must be possible to produce and to correct roll by
unreversed use of the rolling control and to produce and to correct yaw
by unreversed use of the directional control, up to the time the
airplane stalls.
(b) The wings level stall characteristics must be demonstrated in
flight as follows. Starting from a speed at least 10 knots above the
stall speed, the elevator control must be pulled back so that the rate
of speed reduction will not exceed one knot per second until a stall is
produced, as shown by either:
(1) An uncontrollable downward pitching motion of the airplane;
(2) A downward pitching motion of the airplane that results from
the activation of a stall avoidance device (for example, stick pusher);
or
(3) The control reaching the stop.
(c) Normal use of elevator control for recovery is allowed after
the downward pitching motion of paragraphs (b)(1) or (b)(2) of this
section has unmistakably been produced, or after the control has been
held against the stop for not less than the longer of two seconds or
the time employed in the minimum steady slight speed determination of
Sec. 23.49.
(d) During the entry into and the recovery from the maneuver, it
must be possible to prevent more than 15 degrees of roll or yaw by the
normal use of controls.
(e) Compliance with the requirements of this section must be shown
under the following conditions:
(1) Wing flaps. Retracted, fully extended, and each intermediate
normal operating position.
(2) Landing gear. Retracted and extended.
(3) Cowl flaps. Appropriate to configuration.
(4) Power:
(i) Power off; and
(ii) 75 percent of maximum continuous power. However, if the power-
to-weight ratio at 75 percent of maximum continuous power result in
extreme nose-up attitudes, the test may be carried out with the power
required for level flight in the landing configuration at maximum
landing weight and a speed of 1.4 VSO, except that the power may
not be less than 50 percent of maximum continuous power.
(5) Trim. The airplane trimmed at a speed as near 1.5 VS1 as
practicable.
(6) Propeller. Full increase r.p.m. position for the power off
condition.
34. Section 23.203 is amended by revising the section heading and
introductory text, paragraph (a), the introductory text of paragraph
(b), paragraphs (b)(4) and (b)(5), the introductory text of paragraph
(c), and paragraphs (c)(1) and (c)(4), and by adding new paragraphs
(b)(6) and (c)(6) to read as follows:
Sec. 23.203 Turning flight and accelerated turning stalls.
Turning flight and accelerated turning stalls must be demonstrated
in tests as follows:
(a) Establish and maintain a coordinated turn in a 30 degree bank.
Reduce speed by steadily and progressively tightening the turn with the
elevator until the airplane is stalled, as defined in Sec. 23.201(b).
The rate of speed reduction must be constant, and--
(1) For a turning flight stall, may not exceed one knot per second;
and
(2) For an accelerated turning stall, be 3 to 5 knots per second
with steadily increasing normal acceleration.
(b) After the airplane has stalled, as defined in Sec. 23.201(b),
it must be possible to regain wings level flight by normal use of the
flight controls, but without increasing power and without--
* * * * *
(4) Exceeding a bank angle of 60 degrees in the original direction
of the turn or 30 degrees in the opposite direction in the case of
turning flight stalls;
(5) Exceeding a bank angle of 90 degrees in the original direction
of the turn or 60 degrees in the opposite direction in the case of
accelerated turning stalls; and
(6) Exceeding the maximum permissible speed or allowable limit load
factor.
(c) Compliance with the requirements of this section must be shown
under the following conditions:
(1) Wing flaps: Retracted, fully extended, and each intermediate
normal operating position;
* * * * *
(4) Power:
(i) Power off; and
(ii) 75 percent of maximum continuous power. However, if the power-
to-weight ratio at 75 percent of maximum continuous power results in
extreme nose-up attitudes, the test may be carried out with the power
required for level flight in the landing configuration at maximum
landing weight and a speed of 1.4 VSO, except that the power may
not be less than 50 percent of maximum continuous power.
* * * * *
(6) Propeller. Full increase rpm position for the power off
condition.
Sec. 23.205 [Removed]
35. Section 23.205 is removed.
36. Section 23.207 is amended by revising paragraphs (c) and (d),
and by adding new paragraphs (e) and (f) to read as follows:
Sec. 23.207 Stall warning.
* * * * *
(c) During the stall tests required by Sec. 23.201(b) and
Sec. 23.203(a)(1), the stall warning must begin at a speed exceeding
the stalling speed by a margin of not less than 5 knots and must
continue until the stall occurs.
(d) When following procedures furnished in accordance with
Sec. 23.1585, the stall warning must not occur during a takeoff with
all engines operating, a takeoff continued with one engine inoperative,
or during an approach to landing.
(e) During the stall tests required by Sec. 23.203(a)(2), the stall
warning must begin sufficiently in advance of the stall for the stall
to be averted by pilot action taken after the stall warning first
occurs.
(f) For acrobatic category airplanes, an artificial stall warning
may be mutable, provided that it is armed automatically during takeoff
and rearmed automatically in the approach configuration.
37. Section 23.221 is revised to read as follows:
Sec. 23.221 Spinning.
(a) Normal category airplanes. A single-engine, normal category
airplane must be able to recover from a one-turn spin or a three-second
spin, whichever takes longer, in not more than one additional turn
after initiation of the first control action for recovery, or
demonstrate compliance with the optional spin resistant requirements of
this section.
(1) The following apply to one turn or three second spins:
(i) For both the flaps-retracted and flaps-extended conditions, the
applicable airspeed limit and positive limit maneuvering load factor
must not be exceeded;
(ii) No control forces or characteristic encountered during the
spin or recovery may adversely affect prompt recovery;
(iii) It must be impossible to obtain unrecoverable spins with any
use of the flight or engine power controls either at the entry into or
during the spin; and
(iv) For the flaps-extended condition, the flaps may be retracted
during the
[[Page 5192]]
recovery but not before rotation has ceased.
(2) At the applicant's option, the airplane may be demonstrated to
be spin resistant by the following:
(i) During the stall maneuver contained in Sec. 23.201, the pitch
control must be pulled back and held against the stop. Then, using
ailerons and rudders in the proper direction, it must be possible to
maintain wings-level flight within 15 degrees of bank and to roll the
airplane from a 30 degree bank in one direction to a 30 degree bank in
the other direction;
(ii) Reduce the airplane speed using pitch control at a rate of
approximately one knot per second until the pitch control reaches the
stop; then, with the pitch control pulled back and held against the
stop, apply full rudder control in a manner to promote spin entry for a
period of seven seconds or through a 360 degree heading change,
whichever occurs first. If the 360 degree heading change is reached
first, it must have taken no fewer than four seconds. This maneuver
must be performed first with the ailerons in the neutral position, and
then with the ailerons deflected opposite the direction of turn in the
most adverse manner. Power and airplane configuration must be set in
accordance with Sec. 23.201(e) without change during the maneuver. At
the end of seven seconds or a 360 degree heading change, the airplane
must respond immediately and normally to primary flight controls
applied to regain coordinated, unstalled flight without reversal of
control effect and without exceeding the temporary control forces
specified by Sec. 23.143(c); and
(iii) Compliance with Secs. 23.201 and 23.203 must be demonstrated
with the airplane in uncoordinated flight, corresponding to one ball
width displacement on a slip-skid indicator, unless one ball width
displacement cannot be obtained with full rudder, in which case the
demonstration must be with full rudder applied.
(b) Utility category airplanes. A utility category airplane must
meet the requirements of paragraph (a) of this section. In addition,
the requirements of paragraph (c) of this section and Sec. 23.807(b)(7)
must be met if approval for spinning is requested.
(c) Acrobatic category airplanes. An acrobatic category airplane
must meet the spin requirements of paragraph (a) of this section and
Sec. 23.807(b)(6). In addition, the following requirements must be met
in each configuration for which approval for spinning is requested:
(1) The airplane must recover from any point in a spin up to and
including six turns, or any greater number of turns for which
certification is requested, in not more than one and one-half
additional turns after initiation of the first control action for
recovery. However, beyond three turns, the spin may be discontinued if
spiral characteristics appear.
(2) The applicable airspeed limits and limit maneuvering load
factors must not be exceeded. For flaps-extended configurations for
which approval is requested, the flaps must not be retracted during the
recovery.
(3) It must be impossible to obtain unrecoverable spins with any
use of the flight or engine power controls either at the entry into or
during the spin.
(4) There must be no characteristics during the spin (such as
excessive rates of rotation or extreme oscillatory motion) that might
prevent a successful recovery due to disorientation or incapacitation
of the pilot.
38. Section 23.233(a) is revised to read as follows:
Sec. 23.233 Directional stability and control.
(a) A 90 degree cross-component of wind velocity, demonstrated to
be safe for taxiing, takeoff, and landing must be established and must
be not less than 0.2 VSO.
* * * * *
39. Section 23.235 is revised to read as follows:
Sec. 23.235 Operation on unpaved surfaces.
The airplane must be demonstrated to have satisfactory
characteristics and the shock-absorbing mechanism must not damage the
structure of the airplane when the airplane is taxied on the roughest
ground that may reasonably be expected in normal operation and when
takeoffs and landings are performed on unpaved runways having the
roughest surface that may reasonably be expected in normal operation.
40. A new Sec. 23.237 is added to read as follows:
Sec. 23.237 Operation on water.
A wave height, demonstrated to be safe for operation, and any
necessary water handling procedures for seaplanes and amphibians must
be established.
Sec. 23.253 [Amended]
41. Section 23.253 is amended by removing paragraph (b)(1) and by
redesignating paragraph
FR Doc. 96-2082 Airworthiness Standards; Flight Rules Based on European Joint Aviation Requirements
s (b)(2) and (b)(3) as paragraphs (b)(1) and
(b)(2), respectively.
42. Section 23.562(d) introductory text is revised to read as
follows:
Sec. 23.562 Emergency landing dynamic conditions.
* * * * *
(d) For all single-engine airplanes with a VSO of more than 61
knots at maximum weight, and those multiengine airplanes of 6,000
pounds or less maximum weight with a VSO of more than 61 knots at
maximum weight that do not comply with Sec. 23.67(a)(1);
* * * * *
43. Section 23.1325 is amended by revising paragraph (e), by
removing and reserving paragraph (f) to read as follows:
Sec. 23.1325 Static pressure system.
* * * * *
(e) Each static pressure system must be calibrated in flight to
determine the system error. The system error, in indicated pressure
altitude, at sea-level, with a standard atmosphere, excluding
instrument calibration error, may not exceed 30 feet per
100 knot speed for the appropriate configuration in the speed range
between 1.3 VS0 with flaps extended, and 1.8 VS1 with flaps
retracted. However, the error need not be less than 30 feet.
(f) [Reserved]
* * * * *
44. Section 23.1511 is amended by revising paragraphs (a)(1) and
(a)(2) to read as follows:
Sec. 23.1511 Flap extended speed.
(a) * * *
(1) Not less than the minimum value of VF allowed in
Sec. 23.345(b); and
(2) Not more than VF established under Sec. 23.345(a), (c),
and (d).
* * * * *
45. Section 23.1521 is amended by revising paragraphs (b)(5) and
(e) to read as follows:
Sec. 23.1521 Powerplant limitations.
* * * * *
(b) * * *
(5) The maximum allowable cylinder head (as applicable), liquid
coolant and oil temperatures.
* * * * *
(e) Ambient temperature. For all airplanes except reciprocating
engine-powered airplanes of 6,000 pounds or less maximum weight,
ambient temperature limitations (including limitations for
winterization installations if applicable) must be established as the
maximum ambient atmospheric temperature at which compliance with the
cooling provisions of Secs. 23.1041 through 23.1047 is shown.
46. Section 23.1543(c) is added to read as follows:
Sec. 23.1543 Instrument markings: General.
* * * * *
(c) All related instruments must be calibrated in compatible units.
[[Page 5193]]
47. Section 23.1545 is amended by revising paragraphs (b)(5) and
(b)(6) to read as follows:
Sec. 23.1545 Airspeed indicator.
* * * * *
(b) * * *
(5) For reciprocating multiengine-powered airplanes of 6,000 pounds
or less maximum weight, for the speed at which compliance has been
shown with Sec. 23.69(b) relating to rate of climb at maximum weight
and at sea level, a blue radial line.
(6) For reciprocating multiengine-powered airplanes of 6,000 pounds
or less maximum weight, for the maximum value of minimum control speed,
VMC, (one-engine-inoperative) determined under Sec. 23.149(b), a
red radial line.
* * * * *
48. Section 23.1553 is revised to read as follows:
Sec. 23.1553 Fuel quantity indicator.
A red radial line must be marked on each indicator at the
calibrated zero reading, as specified in Sec. 23.1337(b)(1).
49. Section 23.1555(e)(2) is revised to read as follows:
Sec. 23.1555 Control markings.
* * * * *
(e) * * *
(2) Each emergency control must be red and must be marked as to
method of operation. No control other than an emergency control, or a
control that serves an emergency function in addition to its other
functions, shall be this color.
50. Section 23.1559 is revised to read as follows:
Sec. 23.1559 Operating limitations placard.
(a) There must be a placard in clear view of the pilot stating--
(1) That the airplane must be operated in accordance with the
Airplane Flight Manual; and
(2) The certification category of the airplane to which the
placards apply.
(b) For airplanes certificated in more than one category, there
must be a placard in clear view of the pilot stating that other
limitations are contained in the Airplane Flight Manual.
(c) There must be a placard in clear view of the pilot that
specifies the kind of operations to which the operation of the airplane
is limited or from which it is prohibited under Sec. 23.1525.
51. Section 23.1563(c) is added to read as follows:
Sec. 23.1563 Airspeed placards.
* * * * *
(c) For reciprocating multiengine-powered airplanes of more than
6,000 pounds maximum weight, and turbine engine-powered airplanes, the
maximum value of the minimum control speed, VMC (one-engine-
inoperative) determined under Sec. 23.149(b).
52. Section 23.1567(d) is added to read as follows:
Sec. 23.1567 Flight maneuver placard.
* * * * *
(d) For acrobatic category airplanes and utility category airplanes
approved for spinning, there must be a placard in clear view of the
pilot--
(1) Listing the control actions for recovery from spinning
maneuvers; and
(2) Stating that recovery must be initiated when spiral
characteristics appear, or after not more than six turns or not more
than any greater number of turns for which the airplane has been
certificated.
53. Section 23.1581 is amended by adding new paragraphs (a)(3) and
(c), and by revising the introductory text of paragraph (b)(2) and
paragraph (d) to read as follows:
Sec. 23.1581 General.
(a) * * *
(3) Further information necessary to comply with the relevant
operating rules.
(b) * * *
(2) The requirements of paragraph (b)(1) of this section do not
apply to reciprocating engine-powered airplanes of 6,000 pounds or less
maximum weight, if the following is met:
* * * * *
(c) The units used in the Airplane Flight Manual must be the same
as those marked on the appropriate instruments and placards.
(d) All Airplane Flight Manual operational airspeeds, unless
otherwise specified, must be presented as indicated airspeeds.
* * * * *
54. Section 23.1583 is amended by revising the introductory text,
and paragraphs (a)(3) introductory text, (a)(3)(i), (c)(3), (c)(4),
(d), (e), (f), and (g); by redesignating paragraphs (k), (l), and (m)
as paragraphs (i), (j), and (k), respectively, and revising them; and
by adding new paragraphs (c)(5), (c)(6), (l), (m), (n), (o), and (p) to
read as follows:
Sec. 23.1583 Operating limitations.
The Airplane Flight Manual must contain operating limitations
determined under this part 23, including the following--
(a) * * *
(3) In addition, for turbine powered commuter category airplanes--
(i) The maximum operating limit speed, VMO/MMO and a
statement that this speed must not be deliberately exceeded in any
regime of flight (climb, cruise or descent) unless a higher speed is
authorized for flight test or pilot training;
* * * * *
(c) * * *
(3) For normal, utility, and acrobatic category reciprocating
engine-powered airplanes of more than 6,000 pounds maximum weight and
for turbine engine-powered airplanes in the normal, utility, and
acrobatic category, performance operating limitations as follows--
(i) The maximum takeoff weight for each airport altitude and
ambient temperature within the range selected by the applicant at which
the airplane complies with the climb requirements of Sec. 23.63(c)(1).
(ii) The maximum landing weight for each airport altitude and
ambient temperature within the range selected by the applicant at which
the airplane complies with the climb requirements of Sec. 23.63(c)(2).
(4) For commuter category airplanes, the maximum takeoff weight for
each airport altitude and ambient temperature within the range selected
by the applicant at which--
(i) The airplane complies with the climb requirements of
Sec. 23.63(d)(1); and
(ii) The accelerate-stop distance determined under Sec. 23.55 is
equal to the available runway length plus the length of any stopway, if
utilized; and either:
(iii) The takeoff distance determined under Sec. 23.59(a) is equal
to the available runway length; or
(iv) At the option of the applicant, the takeoff distance
determined under Sec. 23.59(a) is equal to the available runway length
plus the length of any clearway and the takeoff run determined under
Sec. 23.59(b) is equal to the available runway length.
(5) For commuter category airplanes, the maximum landing weight for
each airport altitude within the range selected by the applicant at
which--
(i) The airplane complies with the climb requirements of
Sec. 23.63(d)(2) for ambient temperatures within the range selected by
the applicant; and
(ii) The landing distance determined under Sec. 23.75 for standard
temperatures is equal to the available runway length.
(6) The maximum zero wing fuel weight, where relevant, as
established in accordance with Sec. 23.343.
(d) Center of gravity. The established center of gravity limits.
(e) Maneuvers. The following authorized maneuvers, appropriate
airspeed limitations, and unauthorized maneuvers, as prescribed in this
section.
[[Page 5194]]
(1) Normal category airplanes. No acrobatic maneuvers, including
spins, are authorized.
(2) Utility category airplanes. A list of authorized maneuvers
demonstrated in the type flight tests, together with recommended entry
speeds and any other associated limitations. No other maneuver is
authorized.
(3) Acrobatic category airplanes. A list of approved flight
maneuvers demonstrated in the type flight tests, together with
recommended entry speeds and any other associated limitations.
(4) Acrobatic category airplanes and utility category airplanes
approved for spinning. Spin recovery procedure established to show
compliance with Sec. 23.221(c).
(5) Commuter category airplanes. Maneuvers are limited to any
maneuver incident to normal flying, stalls, (except whip stalls) and
steep turns in which the angle of bank is not more than 60 degrees.
(f) Maneuver load factor. The positive limit load factors in g's,
and, in addition, the negative limit load factor for acrobatic category
airplanes.
(g) Minimum flight crew. The number and functions of the minimum
flight crew determined under Sec. 23.1523.
* * * * *
(i) Maximum operating altitude. The maximum altitude established
under Sec. 23.1527.
(j) Maximum passenger seating configuration. The maximum passenger
seating configuration.
(k) Allowable lateral fuel loading. The maximum allowable lateral
fuel loading differential, if less than the maximum possible.
(l) Baggage and cargo loading. The following information for each
baggage and cargo compartment or zone--
(1) The maximum allowable load; and
(2) The maximum intensity of loading.
(m) Systems. Any limitations on the use of airplane systems and
equipment.
(n) Ambient temperatures. Where appropriate, maximum and minimum
ambient air temperatures for operation.
(o) Smoking. Any restrictions on smoking in the airplane.
(p) Types of surface. A statement of the types of surface on which
operations may be conducted. (See Sec. 23.45(g) and Sec. 23.1587
(a)(4), (c)(2), and (d)(4)).
55. Section 23.1585 is revised to read as follows:
Sec. 23.1585 Operating procedures.
(a) For all airplanes, information concerning normal, abnormal (if
applicable), and emergency procedures and other pertinent information
necessary for safe operation and the achievement of the scheduled
performance must be furnished, including--
(1) An explanation of significant or unusual flight or ground
handling characteristics;
(2) The maximum demonstrated values of crosswind for takeoff and
landing, and procedures and information pertinent to operations in
crosswinds;
(3) A recommended speed for flight in rough air. This speed must be
chosen to protect against the occurrence, as a result of gusts, of
structural damage to the airplane and loss of control (for example,
stalling);
(4) Procedures for restarting any turbine engine in flight,
including the effects of altitude; and
(5) Procedures, speeds, and configuration(s) for making a normal
approach and landing, in accordance with Secs. 23.73 and 23.75, and a
transition to the balked landing condition.
(6) For seaplanes and amphibians, water handling procedures and the
demonstrated wave height.
(b) In addition to paragraph (a) of this section, for all single-
engine airplanes, the procedures, speeds, and configuration(s) for a
glide following engine failure, in accordance with Sec. 23.71 and the
subsequent forced landing, must be furnished.
(c) In addition to paragraph (a) of this section, for all
multiengine airplanes, the following information must be furnished:
(1) Procedures, speeds, and configuration(s) for making an approach
and landing with one engine inoperative;
(2) Procedures, speeds, and configuration(s) for making a balked
landing with one engine inoperative and the conditions under which a
balked landing can be performed safely, or a warning against attempting
a balked landing;
(3) The VSSE determined in Sec. 23.149; and
(4) Procedures for restarting any engine in flight including the
effects of altitude.
(d) In addition to paragraphs (a) and either (b) or (c) of this
section, as appropriate, for all normal, utility, and acrobatic
category airplanes, the following information must be furnished:
(1) Procedures, speeds, and configuration(s) for making a normal
takeoff, in accordance with Sec. 23.51 (a) and (b), and Sec. 23.53 (a)
and (b), and the subsequent climb, in accordance with Sec. 23.65 and
Sec. 23.69(a).
(2) Procedures for abandoning a takeoff due to engine failure or
other cause.
(e) In addition to paragraphs (a), (c), and (d) of this section,
for all normal, utility, and acrobatic category multiengine airplanes,
the information must include the following:
(1) Procedures and speeds for continuing a takeoff following engine
failure and the conditions under which takeoff can safely be continued,
or a warning against attempting to continue the takeoff.
(2) Procedures, speeds, and configurations for continuing a climb
following engine failure, after takeoff, in accordance with Sec. 23.67,
or enroute, in accordance with Sec. 23.69(b).
(f) In addition to paragraphs (a) and (c) of this section, for
commuter category airplanes, the information must include the
following:
(1) Procedures, speeds, and configuration(s) for making a normal
takeoff.
(2) Procedures and speeds for carrying out an accelerate-stop in
accordance with Sec. 23.55.
(3) Procedures and speeds for continuing a takeoff following engine
failure in accordance with Sec. 23.59(a)(1) and for following the
flight path determined under Sec. 23.57 and Sec. 23.61(a).
(g) For multiengine airplanes, information identifying each
operating condition in which the fuel system independence prescribed in
Sec. 23.953 is necessary for safety must be furnished, together with
instructions for placing the fuel system in a configuration used to
show compliance with that section.
(h) For each airplane showing compliance with Sec. 23.1353 (g)(2)
or (g)(3), the operating procedures for disconnecting the battery from
its charging source must be furnished.
(i) Information on the total quantity of usable fuel for each fuel
tank, and the effect on the usable fuel quantity, as a result of a
failure of any pump, must be furnished.
(j) Procedures for the safe operation of the airplane's systems and
equipment, both in normal use and in the event of malfunction, must be
furnished.
56. Section 23.1587 is revised to read as follows:
Sec. 23.1587 Performance information.
Unless otherwise prescribed, performance information must be
provided over the altitude and temperature ranges required by
Sec. 23.45(b).
(a) For all airplanes, the following information must be
furnished--
(1) The stalling speeds VSO and VS1 with the landing gear
and wing flaps
[[Page 5195]]
retracted, determined at maximum weight under Sec. 23.49, and the
effect on these stalling speeds of angles of bank up to 60 degrees;
(2) The steady rate and gradient of climb with all engines
operating, determined under Sec. 23.69(a);
(3) The landing distance, determined under Sec. 23.75 for each
airport altitude and standard temperature, and the type of surface for
which it is valid;
(4) The effect on landing distances of operation on other than
smooth hard surfaces, when dry, determined under Sec. 23.45(g); and
(5) The effect on landing distances of runway slope and 50 percent
of the headwind component and 150 percent of the tailwind component.
(b) In addition to paragraph (a) of this section, for all normal,
utility, and acrobatic category reciprocating engine-powered airplanes
of 6,000 pounds or less maximum weight, the steady angle of climb/
descent, determined under Sec. 23.77(a), must be furnished.
(c) In addition to paragraphs (a) and (b) of this section, if
appropriate, for normal, utility, and acrobatic category airplanes, the
following information must be furnished--
(1) The takeoff distance, determined under Sec. 23.53 and the type
of surface for which it is valid.
(2) The effect on takeoff distance of operation on other than
smooth hard surfaces, when dry, determined under Sec. 23.45(g);
(3) The effect on takeoff distance of runway slope and 50 percent
of the headwind component and 150 percent of the tailwind component;
(4) For multiengine reciprocating engine-powered airplanes of more
than 6,000 pounds maximum weight and multiengine turbine powered
airplanes, the one-engine-inoperative takeoff climb/descent gradient,
determined under Sec. 23.66;
(5) For multiengine airplanes, the enroute rate and gradient of
climb/descent with one engine inoperative, determined under
Sec. 23.69(b); and
(6) For single-engine airplanes, the glide performance determined
under Sec. 23.71.
(d) In addition to paragraph (a) of this section, for commuter
category airplanes, the following information must be furnished--
(1) The accelerate-stop distance determined under Sec. 23.55;
(2) The takeoff distance determined under Sec. 23.59(a);
(3) At the option of the applicant, the takeoff run determined
under Sec. 23.59(b);
(4) The effect on accelerate-stop distance, takeoff distance and,
if determined, takeoff run, of operation on other than smooth hard
surfaces, when dry, determined under Sec. 23.45(g);
(5) The effect on accelerate-stop distance, takeoff distance, and
if determined, takeoff run, of runway slope and 50 percent of the
headwind component and 150 percent of the tailwind component;
(6) The net takeoff flight path determined under Sec. 23.61(b);
(7) The enroute gradient of climb/descent with one engine
inoperative, determined under Sec. 23.69(b);
(8) The effect, on the net takeoff flight path and on the enroute
gradient of climb/descent with one engine inoperative, of 50 percent of
the headwind component and 150 percent of the tailwind component;
(9) Overweight landing performance information (determined by
extrapolation and computed for the range of weights between the maximum
landing and maximum takeoff weights) as follows--
(i) The maximum weight for each airport altitude and ambient
temperature at which the airplane complies with the climb requirements
of Sec. 23.63(d)(2); and
(ii) The landing distance determined under Sec. 23.75 for each
airport altitude and standard temperature.
(10) The relationship between IAS and CAS determined in accordance
with Sec. 23.1323 (b) and (c).
(11) The altimeter system calibration required by Sec. 23.1325(e).
57. Section 23.1589(b) is revised to read as follows:
Sec. 23.1589 Loading information.
* * * * *
(b) Appropriate loading instructions for each possible loading
condition between the maximum and minimum weights established under
Sec. 23.25, to facilitate the center of gravity remaining within the
limits established under Sec. 23.23.
Appendix E to Part 23 [Removed and Reserved]
58. Appendix E to Part 23 is removed and reserved.
Issued in Washington, DC, on January 29, 1996.
David R. Hinson,
Administrator.
[FR Doc. 96-2082 Filed 2-8-96; 8:45 am]
BILLING CODE 4910-13-M
Complete official Federal Register PDF
FR Doc. 96-2081 Airworthiness Standards; Airframe Rules Based on European Joint Aviation Requirements
[Federal Register Volume 61, Number 28 (Friday, February 9, 1996)]
[Rules and Regulations]
[Pages 5138-5151]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-2081]
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DEPARTMENT OF TRANSPORTATION
Federal Aviation Administration
14 CFR Part 23
[Docket No. 27805; Amendment No. 23-48]
RIN 2120-AE62
Airworthiness Standards; Airframe Rules Based on European Joint
Aviation Requirements
AGENCY: Federal Aviation Administration, DOT.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: This final rule amends the airframe airworthiness standards
for normal, utility, acrobatic, and commuter category airplanes. This
amendment completes a portion of the Federal Aviation Administration
(FAA) and the European Joint Aviation Authorities (JAA) effort to
harmonize the Federal Aviation Regulations and the Joint Aviation
Requirements (JAR) for airplanes certificated in these categories. This
amendment will provide nearly uniform airframe airworthiness standards
for airplanes certificated in the United States under 14 CFR part 23
and in the JAA countries under Joint Aviation Requirements 23,
simplifying international airworthiness approval.
EFFECTIVE DATE: March 11, 1996.
FOR FURTHER INFORMATION CONTACT:
Kenneth W. Payauys, ACE-111, Small Airplane Directorate, Aircraft
Certification Service, Federal Aviation Administration, 601 East 12th
Street, Kansas City, Missouri 64106; telephone (816) 426-5688.
SUPPLEMENTARY INFORMATION:
Background
This amendment is based on Notice of Proposed Rulemaking (NPRM) No.
94-20 (59 FR 35196, July 8, 1994). All comments received in response to
Notice 94-20 have been considered in adopting this amendment.
This amendment completes part of an effort to harmonize the
requirements of part 23 and JAR 23. The revisions to part 23 in this
amendment largely pertain to airframe airworthiness standards. Three
other final rules are being issued in this Federal Register that
pertain to airworthiness standards for systems and equipment, flight,
and powerplant. These related rulemakings are also part of the
harmonization effort. Interested persons should review all four final
rules to ensure that all revisions to part 23 are recognized.
The harmonization effort was initiated at a meeting in June 1990 of
the JAA Council (consisting of JAA members from European countries) and
the FAA, during which the FAA Administrator committed the FAA to
support the harmonization of the U.S. regulations with the JAR that
were being developed. In response to the commitment, the FAA Small
Airplane Directorate established an FAA Harmonization Task Force to
work with the JAR 23 Study Group to harmonize part 23 with the proposed
JAR 23. The General Aviation Manufacturers Association (GAMA) also
established a JAR 23/part 23 committee to provide technical assistance.
The FAA, JAA, GAMA, and the Association Europeenne des
Constructeurs de Material Aerospatial (AECMA), an organization of
European airframe manufacturers, met on several occasions in a
continuing harmonization effort.
Near the end of the effort to harmonize the normal, utility, and
acrobatic category airplane airworthiness standards, the JAA requested
and received recommendations from its member countries on proposed
airworthiness standards for commuter category airplanes. Subsequent JAA
and FAA meetings on this issue resulted in proposals that were
reflected in Notice 94-20 to revise portions of the part 23 commuter
category airworthiness standards. Accordingly, this final rule adopts
the airframe airworthiness standards for all part 23 airplanes.
In January 1991, the FAA established the Aviation Rulemaking
Advisory Committee (ARAC) (56 FR 2190, January 22, 1991). At an FAA/JAA
Harmonization Conference in Canada in June 1992, the FAA announced that
it would consolidate the harmonization effort within the ARAC
structure. The FAA assigned to ARAC the rulemakings related to JAR 23/
part 23 harmonization, which ARAC assigned to the JAR/FAR 23
Harmonization Working Group. The proposal for airframe airworthiness
standards contained in Notice No. 94-20 were a result of both the
working group's efforts and the efforts at harmonization that occurred
before the formation of the working group.
The JAA submitted comments to the FAA on January 20, 1994, in
response to the four draft proposals for harmonization of the part 23
airworthiness standards. The JAA submitted comments again during the
comment period of the NPRM. At the
[[Page 5139]]
April 26, 1995, ARAC JAR/FAR 23 Harmonization Working Group meeting,
the JAA noted that many of the comments in the January 20 letter had
been satisfied or were no longer relevant. The few remaining items
concern issues that are considered beyond the scope of this rulemaking
and, therefore, will be dealt with at future FAA/JAA Harmonization
meetings.
Discussion of Comments
General
Interested persons were invited to participate in the development
of these final rules by submitting written data, views, or arguments to
the regulatory docket on or before October 28, 1994. Five commenters
responded to Notice 94-20. Minor technical and editorial changes have
been made to the proposed rules based on relevant comments received,
consultation with the ARAC, and further review by the FAA
Discussion of Amendments
Section 23.301 Loads
The FAA proposed to amend Sec. 23.301(d) by limiting the
applicability of Appendix A to part 23 to ``single-engine, excluding
turbines'' airplanes, rather than the current single-engine limitation.
The effect of the proposed changes would be to eliminate alternative
Appendix A airplane design requirements for turbine engines because the
JAA determined, and the FAA agrees, that only single-engine airplanes,
excluding turbines, were envisioned when Appendix A was introduced.
Turbine airplane designs could continue to be FAA certificated by
substantiation to part 23.
No comments were received on the proposal for this section, and it
is adopted as proposed.
Section 23.335 Design Airspeeds
The FAA proposed to revise portions of Sec. 23.335 for
clarification and harmonization with JAR 23. The FAA proposed to revise
paragraph (a)(1) by adding the phrase ``wing loading at the design
maximum takeoff weight'' as a definition for W/S and by revising
paragraphs (a)(1)(i) and (ii) to correct the equations for design
cruise speed from ``33 W/S'' to ``33 (W/S)'' and from ``36
W/S'' to ``36 (W/S).''
The FAA proposed to revise Sec. 23.335(b)(4) by adding a new
paragraph (b)(4)(iii) that includes a new mach number speed margin,
0.07M, for commuter category airplanes. Because commuter category
airplanes are normally operated at higher altitudes than normal,
utility, and acrobatic category airplanes, they experience greater
atmospheric variations, such as horizontal gusts and the penetration of
jet streams or cold fronts; therefore, a higher minimum speed margin is
required. The JAR proposed adding this mach number speed margin. The
original mach number speed margin of 0.05M would be retained for
normal, utility, and acrobatic category airplanes.
An incorrect equation, ng Vs1, appears in
Sec. 23.335(d)(1). This equation for the design speed for maximum gust
intensity, VB, is corrected to Vs1 (ng).
No comments were received on the proposals for this section, and
they are adopted as proposed.
Section 23.337 Limit Maneuvering Load Factors
The FAA proposed to revise Sec. 23.337(a)(1) by clarifying the
equation and by adding a definition for ``W.'' This definition of
``W,'' ``design maximum takeoff weight,'' was requested by the JAA to
harmonize with JAR 23.
No comments were received on the proposal for this section, and it
is adopted as proposed.
Section 23.341 Gust Load Factors
The FAA proposed to reorganize Sec. 23.341 to provide a new
paragraph (a), that would clarify that each airplane must be designed
to withstand loads of each lifting surface that result from gusts
specified in Sec. 23.333(c). It also proposed to reorganize the section
as follows: (1) Redesignate existing paragraphs (a) and (b) as (b) and
(c), respectively; (2) revise the text of new paragraph (b) to delete
the phrase ``considering the criteria of Sec. 23.333(c), to develop the
gust loading on each lifting surface'' since this requirement would be
located in proposed paragraph (a); and, (3) revise new paragraph (c) to
delete the phrase ``for conventional configurations'' because it is no
longer accurate, and to revise the definition for wing loading (W/S).
No comments were received on the proposals for this section, and
they are adopted as proposed.
Section 23.343 Design Fuel Loads
The FAA proposed a new Sec. 23.343. The proposed requirement would
apply to all part 23 airplane categories, except paragraph (c), which
is limited to commuter category airplanes.
Comment: The JAA states that while the JAR 23 Study Group supports
the technical intent of paragraph (c), since the JAA has no JAR 91
operating rule corresponding to part 91. The JAA must wait for an
operating rule to be developed. The JAA has proposed a Notice of
Proposed Action (NPA) to adopt paragraph (c) in JAR 23 if and when an
operating rule for a 45-minute fuel reserve is created.
FAA Response: The FAA decided to continue with the final rule, as
proposed.
This proposal is adopted as proposed.
Section 23.345 High Lift Devices
To place all ``flap'' requirements in one location, and to
harmonize the requirements with JAR 23, the FAA proposed to revise
Sec. 23.345 as follows: (1) Make minor organizational, and non-
substantive, clarifying changes; (2) Change the term ``fully
deflected'' to ``fully extended'' because it more accurately describes
flap conditions and positions; (3) Remove the phrase ``resulting in
limit load factors'' because the requirement already exists in
Sec. 23.301(a); (4) Redesignate current paragraph (c) as paragraph (d)
and revise it to include the flap requirements of Sec. 23.457; (5)
Redesignate current paragraph (d) as paragraph (c); and (6) Incorporate
the flap requirements of Sec. 23.457 into Sec. 23.345(b) and
Sec. 23.345(d), as redesignated, and delete paragraph (e), which is
redundant.
No comments were received on the proposals for this section, and
they are adopted as proposed.
Section 23.347 Unsymmetrical Flight Conditions
The FAA proposed to revise Sec. 23.347 to redesignate the existing
text as paragraph (a) and to add a new paragraph (b) to include
requirements for a flick maneuver (snap roll), if requested for
acrobatic category airplanes.
No comments were received on the proposal for this section, and it
is adopted as proposed.
Section 23.349 Rolling Conditions
The FAA proposed to revised Sec. 23.349(a)(2) to simplify the
unsymmetric semispan load assumption for normal, utility, and commuter
category airplanes to 100 percent on one wing semispan and 75 percent
on the other wing semispan for all design weights up through 19,000
pounds. The preamble to the NPRM did not include the explanation that
the proposed 100 percent and 75 percent load distribution applied only
to normal, utility, and commuter category airplanes. The NPRM did not
include acrobatic category airplanes in this proposed requirement.
However, the proposed regulatory language for Sec. 23.349(c)(2)
correctly reflects the FAA's intent.
[[Page 5140]]
While preparing the NPRM, the FAA had suggested varying the latter
percentage linearly between 70 percent and 77.5 percent to include
aircraft weighing up to 19,000 pounds. After discussion with the JAA,
the FAA agreed that 75 percent is an appropriate assumption for all
part 23 airplanes except acrobatic category airplanes.
No comments were received on the proposal for this section, and it
is adopted as proposed.
Section 23.369 Rear Lift Truss
The FAA proposed to amend Sec. 23.369 by amending the equation and
by adding a definition for wing loading (W/S) to clarify the rule.
No comments were received on the proposal for this section, and it
is adopted as proposed.
Section 23.371 Gyroscopic and Aerodynamic Loads
The FAA proposed to revise and reorganize Sec. 23.371 by
designating the existing text as paragraph (a) and adding new
paragraphs (b) and (c).
The proposed revisions to the text of proposed paragraph (a) would
delete the limitation for turbine powered engines; add inertial loads;
and replace the word ``engines'' with ``engine(s) and propeller(s), if
applicable.'' The proposed changes clarify that these requirements
apply to all part 23 airplanes.
The FAA proposed a new paragraph (b) to clarify and distinguish the
requirements for airplanes approved for aerobatic maneuvers.
The FAA proposed new paragraph (c) to clarify that commuter
category airplanes must comply with the gust conditions in Sec. 23.341
in addition to the requirement of Sec. 23.371(a).
Comment: The JAA recommended that the words ``In addition,'' which
appear at the beginning of JAR 23.371(b) but not in Sec. 23.371(b),
could result in misreading the requirements for airplanes approved for
aerobatic maneuvers. The JAA's concern is that a reader might think
that the requirements of paragraph (b) for airplanes approved for
aerobatic maneuvers are in place of, rather than in addition to, the
requirements of paragraph (a).
FAA Response: The FAA is aware that the words ``in addition''
appear in the JAR and understands that the JAA believes the words are
necessary to prevent an interpretation that airplanes approved for
aerobatic maneuvers need only comply with the requirements of paragraph
(b).
Under standard rules of regulatory interpretation, it is not
necessary to add the words ``in addition'' since the applicability of
paragraph (a) should be based on its wording and not on the wording of
paragraph (b). However, the FAA concludes that JAA's concern can be
addressed by rewording paragraph (b) and new paragraph (c) to make it
clear that persons subject to those paragraphs must meet both
paragraphs (a) and certain additional requirements. As rewritten,
paragraph (b) states ``For airplanes approved for aerobatic maneuvers,
each engine mount and its supporting structure must meet the
requirements of paragraph (a) of this section and be designed to
withstand the load factors expected during combined maximum yaw and
pitch velocities.'' Paragraph (c) uses parallel language. Paragraph (c)
would apply to aircraft certificated in the commuter category, whereas,
as proposed, paragraph (b) would apply to aircraft ``approved for
aerobatic maneuvers,'' since this approval can be given for aircraft
not certificated in the acrobatic category.
This proposal is adopted with the above changes.
Section 23.391 Control Surface Loads
The FAA proposed to revise Sec. 23.391 by deleting paragraph (b).
Paragraph (b) references Appendix B, which was removed by Amendment No.
23-42 (56 FR 344, January 3, 1991).
No comments were received on the proposal for this section, and it
is adopted as proposed.
Section 23.393 Loads Parallel to Hinge Line
The FAA proposed a new Sec. 23.393. Proposed new Sec. 23.393 would
contain a modified version of the requirement of Sec. 23.657(c)
concerning loads parallel to the hinge line, which were proposed to be
deleted from Sec. 23.657.
No comments were received on the proposal for this section, and it
is adopted as proposed.
Section 23.399 Dual Control System
The FAA proposed to redesignate the text of Sec. 23.399 as
paragraph (a), and to add a new paragraph (b) that addresses the forces
exerted on a dual control system when both pilots act together. This
would clarify that it is the greater of the forces that apply.
No comments were received on the proposal for this section, and it
is adopted as proposed.
Section 23.415 Ground Gust Conditions
The FAA proposed to amend Sec. 23.415 by revising paragraph (a)(2)
to add a definition for wing loading (W/S). The FAA also proposed to
revise paragraph (c), which was added in Amendment No. 23-45 (58 FR
42136, August 6, 1993), to incorporate a more comprehensive tie-down
criteria.
No comments were received on the proposals for this section, and it
is adopted as proposed.
Section 23.441 Maneuvering Loads
The FAA proposed to revise Sec. 23.441(b) to include a new design
requirement for the vertical tail of a commuter category airplane.
Comment: The JAA comments that while the intent of the proposed
requirement is the same as the comparable requirement in JAR 23, the
wording is different. The JAA reported that the FAA proposed final rule
version will be considered for full harmonization by the JAA through
NPA action once the final rule is published.
FAA Response: The proposal is adopted as proposed.
Section 23.443 Gust Loads
The FAA proposed to revise Sec. 23.443(c) by changing the format of
the formula, revising the definition of weight (``W''), and correcting
the subscripts of the distance to the lift center, (``lvt''). The
current definition reads ``W=airplane weight (lbs.).'' The new
definition reads ``W=the applicable weight of the airplane in the
particular load case (lbs.).'' These changes are for clarity.
No comments were received on the proposal for this section, and it
is adopted as proposed.
Sections 23.455 Ailerons
The FAA proposed to amend the heading the precedes Sec. 23.455 by
deleting the term ``Wing Flaps'' so that the heading reads ``AILERONS
AND SPECIAL DEVICES.'' This change would reflect the deletion of the
wing flap requirements from Sec. 23.457 and their placement in
Sec. 23.345.
No comments were received on this proposal, and it is adopted as
proposed.
Section 23.457 Wing Flaps
The FAA proposed to delete this section. As discussed under
Sec. 23.345, above, the wing flap requirements have been revised and
consolidated in Sec. 23.345 to group these requirements together.
No comments were received on the proposal for this section, and it
is adopted as proposed.
Section 23.473 Ground Load Conditions and Assumptions
The FAA proposed to revise Sec. 23.473(c)(1) to change the
incorrect reference to ``Sec. 23.67 (a) or (b)(1)'' to ``Sec. 23.67
(b)(1) or (c).''
[[Page 5141]]
Because the FAA intended that turbine powered airplanes be included
in Sec. 23.473(c)(1), since these airplanes are required to be ``climb
positive'' with one engine inoperative, the FAA proposed that
Sec. 23.473(c)(1) also reference Sec. 23.67(c). The FAA also determined
that to achieve the intent described, Sec. 23.473(c)(1) should also
reference Sec. 23.67 (b)(1) or (c).
The FAA also proposed to revise paragraph (f), which addresses
energy absorption tests, to parallel the language of JAR 23.473(f). No
substantive change from current paragraph (f) was proposed.
No comments were received on the proposals for this section, and
they are adopted as proposed.
Section 23.497 Supplementary Conditions for Tail Wheels
The FAA proposed a new Sec. 23.497(c) to relocate tail wheel,
bumper, or energy absorption device design standards for airplanes with
aft-mounted propellers. These requirements currently exist in
Sec. 23.925(b). They are being moved because the FAA determined that
certain portions of the design standards for these devices more
properly belong in Subpart C--Structure.
No comments were received on the proposal for this section, and it
is adopted as proposed.
Section 23.499 Supplementary Conditions for Nose Wheels
The FAA proposed to add new paragraphs (d) and (e) to Sec. 23.499
to establish nose wheel conditions for airplanes with a steerable nose
wheel controlled by hydraulic or other power and for airplanes with a
steerable wheel that has a direct mechanical connection to the rudder
pedals.
Comment: The JAA comments that the phrase ``has a mechanical
connection to the rudder pedals'' in proposed paragraph (e), absent
appropriate advisory material, could be interpreted to require
different technical solutions than the comparable wording in JAR 23,
``directly connected mechanically to the rudder pedals.''
FAA Response: The FAA agrees that the proposed language in
paragraph (e) requires clarification; in the final rule, the word
``direct'' is inserted before the word ``mechanical''. Also, the last
phrase of paragraph (e) is revised to read ``the mechanism must be
designed to withstand the steering torque for the maximum pilot forces
specified in Sec. 23.397(b).''
This proposal is adopted with the above changes to paragraph (e).
Section 23.521 Water Load Conditions
The FAA proposed to amend Sec. 23.521 by deleting paragraph (c),
which deals with previously approved floats, because the FAA agreed
with the JAA that the requirements of paragraph (c) are covered by the
general requirements of paragraph (a).
No comments were received on the proposal for this section, and it
is adopted as proposed.
Section 23.561 General
The FAA proposed to amend Sec. 23.561 by revising paragraphs (b)
and (d), and adding a new paragraph (e). These changes simplify,
clarify, and ``add references * * * to ensure.'' The FAA proposed to
revise paragraph (b), concerning occupant protection, to make it
correspond to 14 CFR part 25 and JAR 25 that cover large airplanes. The
proposed revision of paragraph (d), concerning turnovers would simplify
and clarify the requirements without making substantive changes. The
FAA proposed a new paragraph (e) to ensure that items of mass that
could injure an occupant are retained by the supporting structure.
No comments were received on the proposals for this section, and
they are adopted as proposed.
Section 23.571 Metallic Pressurized Cabin Structures
The FAA proposed to revise Sec. 23.571 by changing the heading from
``Pressurized cabin'' to ``Metallic pressurized cabin structures''
because nonmetallic structure is addressed in Sec. 23.573(a). The FAA
proposed to revise the introductory text to limit the applicability to
normal, utility, and acrobatic categories because commuter category
airplanes are addressed separately. The FAA proposed to revise
paragraph (a) to require the fatigue strength investigation to show
that the structure can withstand repeated loads of variable magnitude
expected in service.
Comment: The JAA comments that the JAR will be revised to delete
commuter category airplanes from this section. Kal-Aero comments that a
literal interpretation of the proposed changes to Secs. 23.571 and
23.572 ``would require that every subsequent modification to an
aircraft have a fatigue program to substantiate each major repair or
alteration.'' Kal-Aero states that this change is both uneconomical
(Kal-Aero estimates a part 23 fatigue test could cost at least $20
million per certification) and is unnecessary.
FAA Response: The FAA does not agree that the proposed rule
language would require the result suggested by Kal-Aero. The intent is
to provide that there be some test evidence to verify the analysis
validity. The amount of test evidence needed would depend on the
complexity of the design. The FAA points out that this evidence would
be required only when fatigue analysis is used to satisfy the type
certification requirements.
The proposals for this section are adopted as proposed.
Section 23.572 Metallic Wing, Empennage, and Associated Structures
The FAA proposed to revise the section heading to add the word
``metallic,'' to revise paragraph (a) to limit the applicability to
normal, utility, and acrobatic category airplanes, and to make minor
editorial changes. Paragraph (a)(1) would be revised to harmonize with
JAR 23 by requiring tests, or analysis supported by test evidence, as
discussed under Sec. 23.571 of this preamble.
The only comment received on this section is from Kal-Aero, and
applies to this section and to Sec. 23.571. The comment was discussed
under Sec. 23.571.
The proposals are adopted as proposed.
Section 23.573 Damage Tolerance and Fatigue Evaluation of Structure
The FAA proposed to amend Sec. 23.573(a)(5) to make clear that the
limit load capacity of a bonded joint must be substantiated only if the
failure of the bonded joint would result in catastrophic loss of the
airplane.
The FAA proposed to delete Sec. 23.573(c) because its requirements
for inspections and other procedures were proposed to be moved to
Sec. 23.575.
No comments were received on the proposals for this section, and
they are adopted as proposed.
Section 23.574 Metallic Damage Tolerance and Fatigue Evaluation of
Commuter Category Airplanes
The FAA proposed to add a new Sec. 23.574 that addresses damage
tolerance and fatigue evaluation requirements for commuter category
airplanes. As discussed previously, Secs. 23.571 and 23.572 are being
revised to clarify that these sections apply only to normal, utility,
and acrobatic category airplanes. Newly type certificated commuter
category airplanes would have to meet proposed Sec. 23.574 instead of
Secs. 23.571 and 23.572.
The only comment received on this proposed new section is a JAA
statement that this change will be considered for JAR 23. The proposal
is adopted as proposed.
[[Page 5142]]
Section 23.575 Inspections and Other Procedures
The FAA proposed to add a new Sec. 23.575 to clarify that airplane
manufacturers are required to provide recommendations for inspections
frequencies, locations, and methods when a design is approved by the
FAA, and that these items must be included in the Limitations Section
of the Instructions for Continued Airworthiness required by
Sec. 23.1529.
The requirements of Sec. 23.573(c) would be moved to Sec. 23.575
and the requirements are made applicable to Secs. 23.571, 23.572,
23.573 and 23.574.
The only comment on this proposed new section is a JAA statement
that this change will be considered for JAR 23. The proposals are
adopted as proposed.
Section 23.607 Fasteners
The FAA proposed to amend Sec. 23.607 by changing the section
heading, by redesignating the existing text as paragraph (c), and by
adding new paragraphs (a) and (b), as outlined in the NPRM.
Comment: Transport Canada comments that it is possible the language
of proposed paragraph (a) could be interpreted to mean that compliance
is satisfied by the use of a self-locking nut alone in certain
situations, such as when a bolt is not subject to rotation. Transport
Canada suggests adopting the wording of Sec. 27.607, which requires
``two separate locking devices'' when the loss of a removable bolt,
screw, nut, pin or other fastener would jeopardize the safe operation
of the aircraft.
FAA Response: The FAA agrees that the proposed language of
paragraph (a) could be misinterpreted and that the intent of the
section would be clearer if language comparable to Sec. 27.607 is used.
Also, the FAA finds that the section is clearer if it addresses all
removable fasteners without specific mention of bolts, screws, nuts,
pins, etc. Accordingly, paragraph (a) has been revised to read ``Each
removable fastener must incorporate two retaining devices if the loss
of such fastener would preclude continued safe flight and landing'' in
the final rule.
This proposal is adopted with the noted change to paragraph (a).
Section 23.611 Accessibility Provisions
The FAA proposed to amend Sec. 23.611 to require that, for any part
requiring maintenance, such as an inspection or other servicing, there
must be a means of access incorporated into the aircraft design to
allow this servicing to be accomplished. The FAA pointed out in the
NPRM that whether the access provided is appropriate in a particular
case will depend on the nature of the item and the frequency and
complexity of the required inspection or maintenance actions.
The only comment received on this proposed change is a JAA
statement that this change will be considered for the JAR. The proposal
is adopted as proposed.
Section 23.629 Flutter
The FAA proposed to revise Sec. 23.629 to require either flight
flutter tests and rational analysis, or flight flutter tests and
compliance with the FAA's ``Simplified Flutter Prevention Criteria.''
Section 23.629 currently requires flutter substantiation by only one of
three methods: A rational analysis, flight flutter test, or compliance
with the ``Simplified Flutter Prevention Criteria.''
The FAA also proposed to revise paragraph (d)(3)(i) to change the
phrase ``T-tail or boom tail'' to ``T-tail or other unconventional tail
configurations'' to be more inclusive and to represent the standard
used in current certification. The FAA also proposed to harmonize with
JAR 23 by amending paragraphs 23.629 (g) and (h) to remove the ``or
test'' phrase to require that substantiation be done only by analysis.
The FAA proposed a new paragraph (i) that would allow freedom from
flutter to be shown by tests (under paragraph (a)) or by analysis alone
if that analysis is based on previously approved data for an airplane
that has undergone modification that could affect its flutter
characteristics.
No comments were received on the proposals for this section, and
they are adopted as proposed.
Section 23.657 Hinges
The FAA proposed to amend Sec. 23.657 by deleting paragraph (c)
that covers loads parallel to the hinge line because it would be
covered in proposed Sec. 23.393.
No comments were received on the proposal for this section, and it
is adopted as proposed.
Section 23.673 Primary Flight Controls
The FAA proposed to revise Sec. 23.673 to delete the requirements
for two-control airplanes consistent with actions being taken in the
proposed rule on flight requirements for part 23 airplanes (Docket No.
27807, Notice No. 94-22; (59 FR 37878, July 25, 1994)) that affect
Secs. 23.177 and 23.201. The two-control requirements are considered
obsolete. Additionally, harmonization with JAR 23 would be accomplished
by this action.
No comments were received on the proposal for this section, and it
is adopted as proposed.
Section 23.725 Limit Drop Tests
The FAA proposed to amend the effective weight equation in
Sec. 23.725(b) by adding mathematical brackets to the numerator and
parentheses to the denominator to clarify the equation.
No comments were received on the proposal for this section, and it
is adopted as proposed.
Section 23.755 Hulls
The FAA proposed to amend Sec. 23.755 by deleting paragraph (b),
which provides, that hulls of hull seaplanes or amphibians of less than
1,500 pounds need not be compartmented, because paragraph (b) is
redundant. The applicable requirements are contained in paragraph (a).
The FAA also proposed to redesignate paragraph (c) as new paragraph (b)
and to edit it for clarification.
No comments were received on the proposals for this section, and
they are adopted as proposed.
Section 23.865 Fire Protection of Flight Controls, Engine Mounts, and
Other Flight Structures
The FAA proposed to revise Sec. 23.865 by changing the words
``engine compartment'' to ``designated fire zones'' for consistency
with recent revisions to Secs. 23.1203 and 23.1181. The proposed
revision would also add the phrase ``adjacent areas that would be
subjected to the effects of fire in the designated fire zones.''
Comment: The JAA agrees that the technical intent of proposed
Sec. 23.865 is similar to the JAR 23 requirement. Changes to JAR 23 to
adopt the terms proposed in this part 23 section are being considered
by the JAA.
FAA Response: No substantive comment was received, and the
proposals are adopted as proposed.
Section 23.925 Propeller Clearance
The FAA proposed to amend Sec. 23.925(b), Aft mounted propellers,
by removing the requirements on tail wheels, bumpers, and energy
absorption devices and moving them to Sec. 23.497, Supplementary
conditions for tail wheels, as discussed as discussed above. The FAA
also proposed to delete the inspection and replacement criteria for
tail wheel, bumper, and energy absorption devices because the
inspection and replacement requirements are stated in Sec. 23.1529.
No comments were received on the proposals for this section, and
they are adopted as proposed.
[[Page 5143]]
Appendix A
The FAA proposed to revise three areas of Appendix A: (1) A23.1
General; (2) A23.11 Control surface loads, paragraph (c), Surface
loading conditions; and (3) Table 2--Average limit control surface
loading. The FAA proposed to add a new figure to Appendix A: Figure A7,
Chordwise load distribution for stabilizer and elevator, or fin and
rudder. The revisions specify the configurations for which the wing and
tail surface loads, required by A23.7, are valid. The FAA discovered a
need for a clarification change in paragraph A23.a(a)(1) during the
post comment review period. The words ``excluding turbine powerplants''
are clearer than the words ``excluding turbines.'' This revision is
included in the final rule to more clearly convey the intended meaning.
No comments were received on the proposals for Appendix A, and they
are adopted with the change explained above.
Final Regulatory Evaluation, Final Regulatory Flexibility
Determination, and Trade Impact Assessment
Changes to Federal regulations must undergo several economic
analyses. First, Executive Order 12866 directs Federal agencies to
promulgate new regulations only if the potential benefits to society
justify its costs. Second, the Regulatory Flexibility Act of 1980
requires agencies to analyze the economic impact of regulatory changes
on small entities. Finally, the Office of Management and Budget directs
agencies to assess the effects of regulatory changes on international
trade. In conducting these assessments, the FAA has determined that
this rule: (1) Will generate benefits exceeding its costs and is
``significant'' as defined in the Executive Order; (2) is
``significant'' as defined in DOT's Policies and Procedures; (3) will
not have a significant impact on a substantial number of small
entities; and (4) will not constitute a barrier to international trade.
These analyses, available in the docket, are summarized below.
Comments Related to the Economics of the Proposed Rule
Two comments were received regarding the economic impact of the
proposals; one concerning Sec. 23.571, Metallic pressurized cabin
structures, and one concerning Sec. 23.572, Metallic wing, empennage,
and associated structures. Both of these comments, as well as the FAA's
responses, are included in the section ``Discussion of Amendments.''
Regulatory Evaluation Summary
The FAA has identified 6 sections that will result in additional
compliance costs, totalling between $10,000 and $17,000 per
certification. When amortized over a production run, these costs will
have a negligible impact on airplane price, less than $100 per
airplane.
The primary benefit of the rule will be the cost efficiencies of
harmonization with the JAR for those manufacturers that market
airplanes in JAA countries as well as to manufacturers in JAA countries
that market airplanes in the United States. Other benefits of the rule
will be decreased reliance on special conditions, simplification of the
certification process through clarification of existing requirements,
and increased flexibility through optional designs.
Regulatory Flexibility Determination
The Regulatory Flexibility Act of 1980 (RFA) was enacted by
Congress to ensure that small entities are not unnecessarily and
disproportionately burdened by Federal regulations. The RFA requires a
Regulatory Flexibility Analysis if a rule will have a significant
economic impact, either detrimental or beneficial, on a substantial
number of small entities. Based on FAA Order 2100.14A, Regulatory
Flexibility Criteria and Guidance, the FAA has determined that the rule
will not have a significant economic impact on a substantial number of
small entities.
International Trade Impact Assessment
The rule will not constitute a barrier to international trade,
including the export of U.S. goods and services to foreign countries
and the import of foreign goods and services into the United States.
Instead, the airframe certification procedures have been harmonized
with those of the JAA and will lessen restraints on trade.
Federalism Implications
The regulations herein would not have substantial direct effects on
the States, on the relationship between the national government and the
States, or on the distribution of power and responsibilities among the
various levels of government. Therefore, in accordance with Executive
Order 12612, it is determined that this rule does not have sufficient
federalism implications to warrant the preparation of a Federalism
Assessment.
Conclusion
The FAA is revising the airframe airworthiness standards for
normal, utility, acrobatic, and commuter category airplanes to
harmonize them with the standards that were published for the same
categories of airplanes by the Joint Airworthiness Authorities in
Europe. The revisions reduce the regulatory burden on United States and
European airplane manufacturers by relieving them of the need to show
compliance with different standards each time they seek certification
approval of an airplane in the United States or in a country that is a
member of the JAA.
For the reasons discussed in the preamble, and based on the
findings in the Regulatory Evaluation, the FAA has determined that this
rule is not significant under Executive Order 12866. In addition, the
FAA certifies that this rule will not have a significant economic
impact on a substantial number of small entities under the criteria of
the Regulatory Flexibility Act. This rule is considered not significant
under DOT Regulatory Policies and Procedures (44 FR 11034, February 26,
1979). A regulatory evaluation of the rule has been placed in the
docket. A copy may be obtained by contacting the person identified
under FOR FURTHER INFORMATION CONTACT.
List of Subjects in 14 CFR Part 23
Aircraft, Aviation safety, Signs and symbols.
The Amendments
In consideration of the foregoing, the Federal Aviation
Administration amends 14 CFR part 23 as follows:
PART 23--AIRWORTHINESS STANDARDS: NORMAL, UTILITY, ACROBATIC, AND
COMMUTER CATEGORY AIRPLANES
1. The authority citation for part 23 continues to read as follows:
Authority: 49 U.S.C. 106(g), 40013, 44701, 44702, 44704.
2. Section 23.301(d) is revised to read as follows:
Sec. 23.301 Loads.
* * * * *
(d) Simplified structural design criteria may be used if they
result in design loads not less than those prescribed in Secs. 23.331
through 23.521. For airplane configurations described in appendix A,
Sec. 23.1, the design criteria of appendix A of this part are an
approved equivalent of Secs. 23.321 through 23.459. If appendix A of
this part is used, the entire appendix must be substituted for the
corresponding sections of this part.
3. Section 23.335 is amended by revising paragraph (a)(1); by
removing the period and adding ``; and either--''
[[Page 5144]]
to the end of paragraph (b)(4)(i); by revising paragraph (b)(4)(ii); by
adding a new paragraph (b)(4)(iii); and by revising the introductory
text of paragraph (d)(1) to read as follows:
Sec. 23.335 Design airspeeds.
* * * * *
(a) * * *
(1) Where W/S'=wing loading at the design maximum takeoff weight,
Vc (in knots) may not be less than--
(i) 33 (W/S) (for normal, utility, and commuter category
airplanes);
(ii) 36 (W/S) (for acrobatic category airplanes).
* * * * *
(b) * * *
(4) * * *
(ii) Mach 0.05 for normal, utility, and acrobatic category
airplanes (at altitudes where MD is established); or
(iii) Mach 0.07 for commuter category airplanes (at altitudes where
MD is established) unless a rational analysis, including the
effects of automatic systems, is used to determine a lower margin. If a
rational analysis is used, the minimum speed margin must be enough to
provide for atmospheric variations (such as horizontal gusts), and the
penetration of jet streams or cold fronts), instrument errors, airframe
production variations, and must not be less than Mach 0.05.
* * * * *
(d) * * *
(1) VB may not be less than the speed determined by the
intersection of the line representing the maximum positive lift,
CN MAX, and the line representing the rough air gust velocity on
the gust V-n diagram, or VS1 ng, whichever is less,
where:
* * * * *
4. Section 23.337(a)(1) is revised to read as follows:
Sec. 23.337 Limit maneuvering load factors.
(a) * * *
(1) 2.1+(24,000(W+10,000)) for normal and commuter category
airplanes, where W=design maximum takeoff weight, except that n need
not be more than 3.8;
* * * * *
5. Section 23.341 is amended by redesignating existing paragraphs
(a) and (b) as paragraphs (b) and (c), respectively; by adding a new
paragraph (a); by revising the redesignated paragraph (b); and by
revising the introductory text, the formula, and the definition of ``W/
S'' in the redesignated paragraph (c) to read as follows:
Sec. 23.341 Gust loads factors.
(a) Each airplane must be designed to withstand loads on each
lifting surface resulting from gusts specified in Sec. 23.333(c).
(b) The gust load for a canard or tandem wing configuration must be
computed using a rational analysis, or may be computed in accordance
with paragraph (c) of this section, provided that the resulting net
loads are shown to be conservative with respect to the gust criteria of
Sec. 23.333(c).
(c) In the absence of a more rational analysis, the gust load
factors must be computed as follows--
[GRAPHIC] [TIFF OMMITTED] TR09FE96.010
* * * * *
W/S=Wing loading (p.s.f.) due to the applicable weight of the airplane
in the particular load case.
* * * * *
6. A new Sec. 23.343 is added to read as follows:
Sec. 23.343 Design fuel loads.
(a) The disposable load combinations must include each fuel load in
the range from zero fuel to the selected maximum fuel load.
(b) If fuel is carried in the wings, the maximum allowable weight
of the airplane without any fuel in the wing tank(s) must be
established as ``maximum zero wing fuel weight,'' if it is less than
the maximum weight.
(c) For commuter category airplanes, a structural reserve fuel
condition, not exceeding fuel necessary for 45 minutes of operation at
maximum continuous power, may be selected. If a structural reserve fuel
condition is selected, it must be used as the minimum fuel weight
condition for showing compliance with the flight load requirements
prescribed in this part and--
(1) The structure must be designed to withstand a condition of zero
fuel in the wing at limit loads corresponding to:
(i) Ninety percent of the maneuvering load factors defined in
Sec. 23.337, and
(ii) Gust velocities equal to 85 percent of the values prescribed
in Sec. 23.333(c).
(2) The fatigue evaluation of the structure must account for any
increase in operating stresses resulting from the design condition of
paragraph (c)(1) of this section.
(3) The flutter, deformation, and vibration requirements must also
be met with zero fuel in the wings.
7. Section 23.345 is revised to read as follows:
Sec. 23.345 High lift devices.
(a) If flaps or similar high lift devices are to be used for
takeoff, approach or landing, the airplane, with the flaps fully
extended at VF, is assumed to be subjected to symmetrical
maneuvers and gusts within the range determined by--
(1) Maneuvering, to a positive limit load factor of 2.0; and
(2) Positive and negative gust of 25 feet per second acting normal
to the flight path in level flight.
(b) VF must be assumed to be not less than 1.4 VS or 1.8
VSF, whichever is greater, where--
(1) VS is the computed stalling speed with flaps retracted at
the design weight; and
(2) VSF is the computed stalling speed with flaps fully
extended at the design weight.
(3) If an automatic flap load limiting device is used, the airplane
may be designed for the critical combinations of airspeed and flap
position allowed by that device.
(c) In determining external loads on the airplane as a whole,
thrust, slipstream, and pitching acceleration may be assumed to be
zero.
(d) The flaps, their operating mechanism, and their supporting
structures, must be designed to withstand the conditions prescribed in
paragraph (a) of this section. In addition, with the flaps fully
extended at VF, the following conditions, taken separately, must
be accounted for:
(1) A head-on gust having a velocity of 25 feet per second (EAS),
combined with propeller slipstream corresponding to 75 percent of
maximum continuous power; and
(2) The effects of propeller slipstream corresponding to maximum
takeoff power.
8. Section 23.347 is amended by designating the existing text as
paragraph (a) and by adding a new paragraph (b) to read as follows:
Sec. 23.347 Unsymmetrical flight conditions.
* * * * *
(b) Acrobatic category airplanes certified for flick maneuvers
(snap roll) must be designed for additional asymmetric loads acting on
the wing and the horizontal tail.
9. Section 23.349(a)(2) is revised to read as follows:
Sec. 23.349 Rolling conditions.
* * * * *
(a) * * *
(2) For normal, utility, and commuter categories, in Condition A,
assume that 100 percent of the semispan wing airload acts on one side
of the airplane and 75 percent of this load acts on the other side.
* * * * *
10. Section 23.369(a) is revised to read as follows:
[[Page 5145]]
Sec. 23.369 Rear lift truss.
(a) If a rear lift truss is used, it must be designed to withstand
conditions of reversed airflow at a design speed of--
V = 8.7 (W/S) + 8.7 (knots), where W/S = wing loading at
design maximum takeoff weight.
* * * * *
11. Section 23.371 is revised to read as follows:
Sec. 23.371 Gyroscopic and aerodynamic loads.
(a) Each engine mount and its supporting structure must be designed
for the gyroscopic, inertial, and aerodynamic loads that result, with
the engine(s) and propeller(s), if applicable, at maximum continuous
r.p.m., under either:
(1) The conditions prescribed in Sec. 23.351 and Sec. 23.423; or
(2) All possible combinations of the following--
(i) A yaw velocity of 2.5 radians per second;
(ii) A pitch velocity of 1.0 radian per second;
(iii) A normal load factor of 2.5; and
(iv) Maximum continuous thrust.
(b) For airplanes approved for aerobatic maneuvers, each engine
mount and its supporting structure must meet the requirements of
paragraph (a) of this section and be designed to withstand the load
factors expected during combined maximum yaw and pitch velocities.
(c) For airplanes certificated in the commuter category, each
engine mount and its supporting structure must meet the requirements of
paragraph (a) of this section and the gust conditions specified in
Sec. 23.341 of this part.
Sec. 23.391 [Amended]
12. Section 23.391 is amended by removing paragraph (b) and
removing the designation of ``(a)'' from the remaining text.
13. A new Sec. 23.393 is added to read as follows:
Sec. 23.393 Loads parallel to hinge line.
(a) Control surfaces and supporting hinge brackets must be designed
to withstand inertial loads acting parallel to the hinge line.
(b) In the absence of more rational data, the inertial loads may be
assumed to be equal to KW, where--
(1) K = 24 for vertical surfaces;
(2) K = 12 for horizontal surfaces; and
(3) W = weight of the movable surfaces.
14. Section 23.399 is revised to read as follows:
Sec. 23.399 Dual control system.
(a) Each dual control system must be designed to withstand the
force of the pilots operating in opposition, using individual pilot
forces not less than the greater of--
(1) 0.75 times those obtained under Sec. 23.395; or
(2) The minimum forces specified in Sec. 23.397(b).
(b) Each dual control system must be designed to withstand the
force of the pilots applied together, in the same direction, using
individual pilot forces not less than 0.75 times those obtained under
Sec. 23.395.
15. Section 23.415 is amended by revising paragraphs (a)(2) and (c)
to read as follows:
Sec. 23.415 Ground gust conditions.
(a) * * *
(2) If pilot forces less than the minimums specified in
Sec. 23.397(b) are used for design, the effects of surface loads due to
ground gusts and taxiing downwind must be investigated for the entire
control system according to the formula:
H = K c S q
where--
H = limit hinge moment (ft.-lbs.);
c = mean chord of the control surface aft of the hinge line (ft.);
S = area of control surface aft of the hinge line (sq. ft.);
q = dynamic pressure (p.s.f.) based on a design speed not less than
14.6 (W/S) + 14.6 (f.p.s.) where W/S = wing loading at design
maximum weight, except that the design speed need not exceed 88
(f.p.s.);
K = limit hinge moment factor for ground gusts derived in paragraph (b)
of this section. (For ailerons and elevators, a positive value of K
indicates a moment tending to depress the surface and a negative value
of K indicates a moment tending to raise the surface).
* * * * *
(c) At all weights between the empty weight and the maximum weight
declared for tie-down stated in the appropriate manual, any declared
tie-down points and surrounding structure, control system, surfaces and
associated gust locks, must be designed to withstand the limit load
conditions that exist when the airplane is tied down and that result
from wind speeds of up to 65 knots horizontally from any direction.
16. Section 23.441 is amended by revising paragraph (a)(2) and
adding a new paragraph (b) to read as follows.
Sec. 23.441 Maneuvering loads.
(a) * * *
(2) With the rudder deflected as specified in paragraph (a)(1) of
this section, it is assumed that the airplane yaws to the overswing
sideslip angle. In lieu of a rational analysis, an overswing angle
equal to 1.5 times the static sideslip angle of paragraph (a)(3) of
this section may be assumed.
* * * * *
(b) For commuter category airplanes, the loads imposed by the
following additional maneuver must be substantiated at speeds from
VA to VD/MD. When computing the tail loads--
(1) The airplane must be yawed to the largest attainable steady
state sideslip angle, with the rudder at maximum deflection caused by
any one of the following:
(i) Control surface stops;
(ii) Maximum available booster effort;
(iii) Maximum pilot rudder force as shown below:
BILLING CODE 4910-13-M
[[Page 5146]]
[GRAPHIC] [TIFF OMMITTED] TR09FE96.006
BILLING CODE 4910-13-C
[[Page 5147]]
(2) The rudder must be suddenly displaced from the maximum
deflection to the neutral position.
* * * * *
17. Section 23.443(c) is revised to read as follows:
Sec. 23.443 Gust loads.
* * * * *
(c) In the absence of a more rational analysis, the gust load must
be computed as follows:
[GRAPHIC] [TIFF OMMITTED] TR09FE96.000
Where--
Lvt=Vertical surface loads (lbs.);
[GRAPHIC] [TIFF OMMITTED] TR09FE96.001
[GRAPHIC] [TIFF OMMITTED] TR09FE96.002
Ude=Derived gust velocity (f.p.s.);
=Air density (slugs/cu.ft.);
W=the applicable weight of the airplane in the particular load case
(lbs.);
Svt=Area of vertical surface (ft.2);
ct=Mean geometric chord of vertical surface (ft.);
avt=Lift curve slope of vertical surface (per radian);
K=Radius of gyration in yaw (ft.);
lvt=Distance from airplane c.g. to lift center of vertical surface
(ft.);
g=Acceleration due to gravity (ft./sec.2); and
V=Equivalent airspeed (knots).
18. The center heading ``AILERONS, WING FLAPS, AND SPECIAL
DEVICES'' that appears between Secs. 23.445 and 23.455 is revised to
read ``Ailerons and Special Devices''.
Sec. 23.457 [Removed]
19. Section 23.457 is removed.
20. Section 23.473 is amended by revising paragraphs (c)(1) and (f)
to read as follows:
Sec. 23.473 Ground load conditions and assumptions.
* * * * *
(c) * * *
(1) The airplane meets the one-engine-inoperative climb
requirements of Sec. 23.67(b)(1) or (c); and
* * * * *
(f) If energy absorption tests are made to determine the limit load
factor corresponding to the required limit descent velocities, these
tests must be made under Sec. 23.723(a).
* * * * *
21. Section 23.497 is amended by adding a new paragraph (c) to read
as follows:
Sec. 23.497 Supplementary conditions for tail wheels.
* * * * *
(c) If a tail wheel, bumper, or an energy absorption device is
provided to show compliance with Sec. 23.925(b), the following apply:
(1) Suitable design loads must be established for the tail wheel,
bumper, or energy absorption device; and
(2) The supporting structure of the tail wheel, bumper, or energy
absorption device must be designed to withstand the loads established
in paragraph (c)(1) of this section.
22. Section 23.499 is amended by adding new paragraphs (d) and (e)
to read as follows:
Sec. 23.499 Supplementary conditions for nose wheels.
* * * * *
(d) For airplanes with a steerable nose wheel that is controlled by
hydraulic or other power, at design takeoff weight with the nose wheel
in any steerable position, the application of 1.33 times the full
steering torque combined with a vertical reaction equal to 1.33 times
the maximum static reaction on the nose gear must be assumed. However,
if a torque limiting device is installed, the steering torque can be
reduced to the maximum value allowed by that device.
(e) For airplanes with a steerable nose wheel that has a direct
mechanical connection to the rudder pedals, the mechanism must be
designed to withstand the steering torque for the maximum pilot forces
specified in Sec. 23.397(b).
Sec. 23.521 [Amended]
23. Section 23.521 is amended by removing paragraph (c).
24. Section 23.561 is amended by revising paragraph (b)
introductory text; by revising paragraphs (d)(1); and by adding a new
paragraph (e) to read as follows:
Sec. 23.561 General.
* * * * *
(b) The structure must be designed to give each occupant every
reasonable chance of escaping serious injury when--
* * * * *
(d) * * *
(1) * * *
(i) The most adverse combination of weight and center of gravity
position;
(ii) Longitudinal load factor of 9.0g;
(iii) Vertical load factor of 1.0g; and
(iv) For airplanes with tricycle landing gear, the nose wheel strut
failed with the nose contacting the ground.
* * * * *
(e) Except as provided in Sec. 23.787(c), the supporting structure
must be designed to restrain, under loads up to those specified in
paragraph (b)(3) of this section, each item of mass that could injure
an occupant if it came loose in a minor crash landing.
25. Section 23.571 is amended by revising the heading, the
introductory text, and paragraph (a), to read as follows:
Sec. 23.571 Metallic pressurized cabin structures.
For normal, utility, and acrobatic category airplanes, the
strength, detail design, and fabrication of the metallic structure of
the pressure cabin must be evaluated under one of the following:
(a) A fatigue strength investigation in which the structure is
shown by tests, or by analysis supported by test evidence, to be able
to withstand the repeated loads of variable magnitude expected in
service; or
* * * * *
26. Section 23.572 is amended by revising the heading; by revising
paragraph (a) introductory text; and by revising paragraph (a)(1) to
read as follows:
Sec. 23.572 Metallic wing, empennage, and associated structures.
(a) For normal, utility, and acrobatic category airplanes, the
strength, detail design, and fabrication of those parts of the airframe
structure whose failure would be catastrophic must be evaluated under
one of the following unless it is shown that the structure, operating
stress level, materials and expected uses are comparable, from a
fatigue standpoint, to a similar design that has had extensive
satisfactory service experience:
(1) A fatigue strength investigation in which the structure is
shown by tests, or by analysis supported by test evidence, to be able
to withstand the repeated loads of variable magnitude expected in
service; or
* * * * *
27. Section 23.573 is amended by removing the reference in
paragraph (b) ``Sec. 23.571(c)'' and adding the reference
``Sec. 23.571(a)(3)'' in its place; by removing paragraph (c); and by
revising the introductory text of paragraph (a)(5) to read as follows:
Sec. 23.573 Damage tolerance and fatigue evaluation of structure.
(a) * * *
[[Page 5148]]
(5) For any bonded joint, the failure of which would result in
catastrophic loss of the airplane, the limit load capacity must be
substantiated by one of the following methods--
* * * * *
28. A new Sec. 23.574 is added to read as follows:
Sec. 23.574 Metallic damage tolerance and fatigue evaluation of
commuter category airplanes.
For commuter category airplanes--
(a) Metallic damage tolerance. An evaluation of the strength,
detail design, and fabrication must show that catastrophic failure due
to fatigue, corrosion, defects, or damage will be avoided throughout
the operational life of the airplane. This evaluation must be conducted
in accordance with the provisions of Sec. 23.573, except as specified
in paragraph (b) of this section, for each part of the structure that
could contribute to a catastrophic failure.
(b) Fatigue (safe-life) evaluation. Compliance with the damage
tolerance requirements of paragraph (a) of this section is not required
if the applicant establishes that the application of those requirements
is impractical for a particular structure. This structure must be
shown, by analysis supported by test evidence, to be able to withstand
the repeated loads of variable magnitude expected during its service
life without detectable cracks. Appropriate safe-life scatter factors
must be applied.
29. A new Sec. 23.575 is added to read as follows:
Sec. 23.575 Inspections and other procedures.
Each inspection or other procedure, based on an evaluation required
by Secs. 23.571, 23.572, 23.573 or 23.574, must be established to
prevent catastrophic failure and must be included in the Limitations
Section of the Instructions for Continued Airworthiness required by
Sec. 23.1529.
30. Section 23.607 is revised to read as follows:
Sec. 23.607 Fasteners.
(a) Each removable fastener must incorporate two retaining devices
if the loss of such fastener would preclude continued safe flight and
landing.
(b) Fasteners and their locking devices must not be adversely
affected by the environmental conditions associated with the particular
installation.
(c) No self-locking nut may be used on any bolt subject to rotation
in operation unless a non-friction locking device is used in addition
to the self-locking device.
31. Section 23.611 is revised to read as follows:
Sec. 23.611 Accessibility provisions.
For each part that requires maintenance, inspection, or other
servicing, appropriate means must be incorporated into the aircraft
design to allow such servicing to be accomplished.
32. Section 23.629 is amended by revising the introductory text of
paragraph (a); by redesignating existing paragraphs (b) and (c) as
paragraphs (c) and (b); by revising the introductory text of newly
redesignated (b); by revising newly redesignated paragraph (c); by
revising paragraph (d)(3)(i); by revising paragraphs (g) and (h); and
by adding a new paragraph (i) to read as follows:
Sec. 23.629 Flutter.
(a) It must be shown by the methods of paragraph (b) and either
paragraph (c) or (d) of this section, that the airplane is free from
flutter, control reversal, and divergence for any condition of
operation within the limit V-n envelope and at all speeds up to the
speed specified for the selected method. In addition--
* * * * *
(b) Flight flutter tests must be made to show that the airplane is
free from flutter, control reversal and divergence and to show that--
* * * * *
(c) Any rational analysis used to predict freedom from flutter,
control reversal and divergence must cover all speeds up to 1.2
VD.
(d) * * *
(3) * * *
(i) Does not have a T-tail or other unconventional tail
configurations;
* * * * *
(g) For airplanes showing compliance with the fail-safe criteria of
Secs. 23.571 and 23.572, the airplane must be shown by analysis to be
free from flutter up to VD/MD after fatigue failure, or
obvious partial failure, of a principal structural element.
(h) For airplanes showing compliance with the damage tolerance
criteria of Sec. 23.573, the airplane must be shown by analysis to be
free from flutter up to VD/MD with the extent of damage for
which residual strength is demonstrated.
(i) For modifications to the type design that could affect the
flutter characteristics, compliance with paragraph (a) of this section
must be shown, except that analysis based on previously approved data
may be used alone to show freedom from flutter, control reversal and
divergence, for all speeds up to the speed specified for the selected
method.
Sec. 23.657 [Amended]
33. Section 23.657 is amended by removing paragraph (c).
Sec. 23.673 [Amended]
34. Section 23.673 is amended by removing paragraph (b) and the
paragraph designation ``(a)'' for the remaining paragraph.
35. Section 23.725 is amended by revising the equation in paragraph
(b) to read as follows:
Sec. 23.725 Limit drop tests.
* * * * *
(b) * * *
[GRAPHIC] [TIFF OMMITTED] TR09FE96.003
* * * * *
36. Section 23.755 is amended by removing paragraph (b), and by
redesignating paragraph (c) as paragraph (b) and revising it to read as
follows:
Sec. 23.755 Hulls.
* * * * *
(b) Watertight doors in bulkheads may be used for communication
between compartments.
37. Section 23.865 is revised to read as follows:
Sec. 23.865 Fire protection of flight controls, engine mounts, and
other flight structure.
Flight controls, engine mounts, and other flight structure located
in designated fire zones, or in adjacent areas that would be subjected
to the effects of fire in the designated fire zones, must be
constructed of fireproof material or be shielded so that they are
capable of withstanding the effects of a fire. Engine vibration
isolators must incorporate suitable features to ensure that the engine
is retained if the non-fireproof portions of the isolators deteriorate
from the effects of a fire.
38. Section 23.925 is amended by revising paragraph (b) to read as
follows:
Sec. 23.925 Propeller clearance.
* * * * *
(b) Aft-mounted propellers. In addition to the clearances specified
in paragraph (a) of this section, an airplane with an aft mounted
propeller must be designed such that the propeller will not contact the
runway surface when the airplane is in the maximum pitch attitude
attainable during normal takeoffs and landings.
* * * * *
39. Appendix A is amended by revising the heading, section A23.1,
paragraphs A23.11 (c)(1) and (d), and Table 2; and by adding a new
Figure A7 to the end of the Appendix to read as follows:
[[Page 5149]]
Appendix A to Part 23 Simplified Design Load Criteria
A23.1 General.
(a) The design load criteria in this appendix are an approved
equivalent of those in Secs. 23.321 through 23.459 of this
subchapter for an airplane having a maximum weight of 6,000 pounds
or less and the following configuration:
(1) A single engine excluding turbine powerplants;
(2) A main wing located closer to the airplane's center of
gravity than to the aft, fuselage-mounted, empennage;
(3) A main wing that contains a quarter-chord sweep angle of not
more than 15 degrees fore or aft;
(4) A main wing that is equipped with trailing-edge controls
(ailerons or flaps, or both);
(5) A main wing aspect ratio not greater than 7;
(6) A horizontal tail aspect ratio not greater than 4;
(7) A horizontal tail volume coefficient not less than 0.34;
(8) A vertical tail aspect ratio not greater than 2;
(9) A vertical tail platform area not greater than 10 percent of
the wing platform area; and
(10) Symmetrical airfoils must be used in both the horizontal
and vertical tail designs.
(b) Appendix A criteria may not be used on any airplane
configuration that contains any of the following design features:
(1) Canard, tandem-wing, close-coupled, or tailless arrangements
of the lifting surfaces;
(2) Biplane or multiplane wing arrangements;
(3) T-tail, V-tail, or cruciform-tail (+) arrangements;
(4) Highly-swept wing platform (more than 15-degrees of sweep at
the quarter-chord), delta planforms, or slatted lifting surfaces; or
(5) Winglets or other wing tip devices, or outboard fins.
* * * * *
A23.11 Control surface loads.
* * * * *
(c) * * *
(1) Simplified limit surface loadings for the horizontal tail,
vertical tail, aileron, wing flaps, and trim tabs are specified in
figures 5 and 6 of this appendix.
(i) The distribution of load along the span of the surface,
irrespective of the chordwise load distribution, must be assumed
proportional to the total chord, except on horn balance surfaces.
(ii) The load on the stabilizer and elevator, and the load on
fin and rudder, must be distributed chordwise as shown in figure 7
of this appendix.
(iii) In order to ensure adequate torsional strength and to
account for maneuvers and gusts, the most severe loads must be
considered in association with every center of pressure position
between the leading edge and the half chord of the mean chord of the
surface (stabilizer and elevator, or fin and rudder).
(iv) To ensure adequate strength under high leading edge loads,
the most severe stabilizer and fin loads must be further considered
as being increased by 50 percent over the leading 10 percent of the
chord with the loads aft of this appropriately decreased to retain
the same total load.
(v) The most severe elevator and rudder loads should be further
considered as being distributed parabolically from three times the
mean loading of the surface (stabilizer and elevator, or fin and
rudder) at the leading edge of the elevator and rudder,
respectively, to zero at the trailing edge according to the
equation:
[GRAPHIC] [TIFF OMMITTED] TR09FE96.004
BILLING CODE 4910-13-M
[GRAPHIC] [TIFF OMMITTED] TR09FE96.007
BILLING CODE 4910-13-C
Where--
P(x)=local pressure at the chordwise stations x,
c=chord length of the tail surface,
cf=chord length of the elevator and rudder respectively, and
w=average surface loading as specified in Figure A5.
* * * * *
(vi) The chordwise loading distribution for ailerons, wing
flaps, and trim tabs are specified in Table 2 of this appendix.
(d) Outboard fins. Outboard fins must meet the requirements of
Sec. 23.445.
* * * * *
BILLING CODE 4910-13-M
[[Page 5150]]
[GRAPHIC] [TIFF OMMITTED] TR09FE96.008
BILLING CODE 4910-13-C
[[Page 5151]]
* * * * *
Figure A7.--Chordwise Load Distribution for Stabilizer and Elevator or
Fin and Rudder
[GRAPHIC] [TIFF OMMITTED] TR09FE96.009
BILLING CODE 4910-13-C
[GRAPHIC] [TIFF OMMITTED] TR09FE96.005
where:
w=average surface loading (as specified in figure A.5)
E=ratio of elevator (or rudder) chord to total stabilizer and
elevator (or fin and rudder) chord.
d'=ratio of distance of center of pressure of a unit spanwise length
of combined stabilizer and elevator (or fin and rudder) measured
from stabilizer (or fin) leading edge to the local chord. Sign
convention is positive when center of pressure is behind leading
edge.
c=local chord.
Note: Positive values of w, P1 and P2 are all measured
in the same direction.
Issued in Washington, DC, on January 29, 1996.
David R. Hinson,
Administrator.
[FR Doc. 96-2081 Filed 2-8-96; 8:45 am]
BILLING CODE 4910-13-M
Complete official Federal Register PDF
FR Doc. 96-1713 Hazardous Waste Treatment, Storage, and Disposal Facilities and Hazardous Waste Generators; Organic Air Emission Standards for Tanks, Surface Impoundments, and Containers
[Federal Register Volume 61, Number 28 (Friday, February 9, 1996)]
[Rules and Regulations]
[Pages 4903-4916]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-1713]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 262, 264, 265, and 270
[IL-64-2-5807; FRL-5407-2]
Hazardous Waste Treatment, Storage, and Disposal Facilities and
Hazardous Waste Generators; Organic Air Emission Standards for Tanks,
Surface Impoundments, and Containers
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule; technical amendment.
-----------------------------------------------------------------------
SUMMARY: Under the authority of the Resource Conservation and Recovery
Act (RCRA), as amended, the EPA has published air standards to reduce
organic emissions from hazardous waste management activities (59 FR
62896, December 6, 1994). The air standards apply to owners and
operators of hazardous waste treatment, storage, and disposal
facilities (TSDF) subject to RCRA subtitle C permitting requirements
and to certain hazardous waste generators accumulating waste in on-site
tanks and containers. This action makes clarifying amendments in the
regulatory text of the final standards, corrects typographical and
grammatical errors, and clarifies certain language in the preamble to
the final rule.
EFFECTIVE DATE: The rule provisions clarified by this action are
effective as of June 6, 1996, the effective date of the final rule.
ADDRESSES: This notice is available on the EPA's Clean-up Information
Bulletin Board (CLU-IN). To access CLU-IN with a modem of up to 28,800
baud, dial (301) 589-8366. First time users will be asked to input some
initial registration information. Next, select ``D'' (download) from
the main menu. Input the file name ``RCRACLAR.ZIP'' to download this
notice. Follow the on-line instructions to complete the download. More
information about the download procedure is located in Bulletin 104; to
read this type ``B 104'' from the main menu. For additional help with
these instructions, telephone the CLU-IN help line at (301) 589-8368.
Docket. The supporting information used for this rulemaking is
available for public inspection and copying in the RCRA docket. The
RCRA docket numbers pertaining to this rulemaking are F-91-CESP-FFFFF,
F-92-CESA-FFFFF, F-94-CESF-FFFFF, F-94-
[[Page 4904]]
CE2A-FFFFF, and F-95-CE3A-FFFFF. The RCRA docket is located at Crystal
Gateway, 1235 Jefferson Davis Highway, First Floor, Arlington,
Virginia. Hand delivery of items and review of docket materials are
made at the Virginia address. The public must have an appointment to
review docket materials. Appointments can be scheduled by calling the
Docket Office at (703) 603-9230. The mailing address for the RCRA
docket office is RCRA Information Center (5305W), U. S. Environmental
Protection Agency, 401 M Street SW, Washington, DC 20460.
FOR FURTHER INFORMATION CONTACT: The RCRA Hotline, toll-free at (800)
424-9346. For further information on the specific provisions to which
this clarification refers, contact Ms. Michele Aston, Emission
Standards Division (Mail Drop 13), Office of Air Quality Planning and
Standards, U.S. Environmental Protection Agency, Research Triangle
Park, North Carolina 27711, telephone number (919) 541-2363.
SUPPLEMENTARY INFORMATION:
Background
The EPA is today making clarifying amendments to the final subpart
CC standards. Since the publication of the final rule, the EPA has
published two Federal Register documents to delay the effective date of
the final rule. The first (60 FR 26828, May 19, 1995) revised the
effective date of the standards to be December 6, 1995. The second (60
FR 56952, November 13, 1995) subsequently revised the effective date of
the standards to be June 6, 1996. The EPA has also issued a stay of the
standards specific to units managing wastes produced by certain organic
peroxide manufacturing processes (60 FR 50426, September 29, 1995).
On August 14, 1995, the EPA published a Federal Register document
entitled, ``Proposed rule; data availability'' (60 FR 41870) and opened
RCRA docket F-95-CE3A-FFFFF to accept comments on revisions that the
EPA is considering for the final subpart CC standards. The EPA accepted
public comments on the appropriateness of these revisions through
October 13, 1995 and is now in the process of reviewing and evaluating
the comments that were received. The EPA expects to complete its review
of these public comments, and publish a Federal Register notice
explaining the EPA's decision if and how to amend the rule to reflect
the proposed revisions, in early 1996.
Today's action clarifies provisions of the final rule to better
convey the EPA's original intent. While today's clarifications may be
applicable to certain comments submitted to docket F-95-CE3A-FFFFF,
today's action is independent of those proposed revisions and the
Federal Register document that EPA intends to publish in early 1996
addressing its evaluation of the proposed revisions. The information
presented in this preamble is organized as follows:
1. Applicability.
2. Definitions.
3. Schedule for implementation of air emission standards.
4. Standards: General.
5. Waste determination procedures.
6. Standards: Tanks.
7. Standards: Surface impoundments.
8. Standards: Containers.
9. Closed-Vent Systems and Control Devices.
10. Inspection and Monitoring requirements.
11. Recordkeeping Requirements.
12. Reporting Requirements.
13. Alternative Control Requirements for Tanks.
14. Immediate Effective Date.
1. Applicability
The EPA deferred applicability of the final subpart CC standards to
units used solely for on-site treatment or storage of hazardous waste
generated in the course of certain remedial activities. Paragraph
(b)(5) of Sec. 264.1080 and Sec. 265.1080 specified that this deferral
applied to ``remedial activities required under the corrective action
authorities of RCRA sections 3004(u), 3004(v) or 3008(h), CERCLA
authorities, or similar Federal or State authorities.'' However, page
62897 of the preamble to the final subpart CC standards stated that
this deferral applied to ``remedial activities required under RCRA
corrective action or CERCLA response authorities (or similar State
remediation authorities).'' Consistent with the regulatory language,
the EPA intended that this deferral apply to remedial activities under
the authority of RCRA corrective action, CERCLA response, similar
Federal authorities, or similar State authorities. An example of a
similar Federal authority would be the EPA Compliance Monitoring
Program (CMP) pursuant to the Toxic Substances Control Act, and a waste
management unit that is used solely for on-site storage of hazardous
wastes generated from remedial activities required by the CMP thus
would qualify for deferral from the applicability of the final subpart
CC standards.
The EPA also deferred applicability of the subpart CC standards to
hazardous waste management units that are used ``solely'' to treat or
store radioactive mixed waste, in paragraph (b)(6) of Sec. 264.1080 and
Sec. 265.1080. EPA is clarifying here that the use of the word
``solely'' does not preclude addition of other materials to a unit
managing radioactive mixed waste if applicable regulations of the
Atomic Energy Act or the Nuclear Waste Policy Act require that material
other than radioactive mixed waste be added to the unit. Such additions
would not contravene the purpose of EPA's limitation of the scope of
the deferral: To prevent radioactive mixed wastes from being used to
exempt other hazardous waste from the rule through mixing and to limit
the volume of mixed waste that is managed, again by limiting options
for exempt mixing. Thus, if any materials other than radioactive mixed
waste are added after June 6, 1996 to units used to treat or store
mixed waste, the regulatory deferral of the unit would not apply unless
the addition is pursuant to a regulatory requirement imposed pursuant
to the Atomic Energy Act and/or the Nuclear Waste Policy Act.
2. Definitions
The EPA is revising the definition of ``cover'' and adding a
definition for the term ``enclosure'' to clarify the EPA's intended
distinction between the two technologies, and to clarify the specific
requirements for an enclosure. As used in the final subpart CC
standards, the EPA considers a cover to be a device that is placed on
or over a unit and forms a barrier between the entire waste surface and
the space external to the unit. Examples of covers include a fitted lid
on a drum and a roof on a tank. In contrast, the EPA considers an
enclosure to be a structure that is external to a unit which surrounds
the unit and some space external to the unit. An example of an
enclosure would be a shed or a building within which a unit is either
permanently or temporarily located. The definition for ``cover''
contained in the December 6, 1994 final standards listed an enclosure
surrounding a container as an example of a cover, which has led to
several inquiries from the public as to whether a tank located inside a
building equipped with a ventilation system routed to a control device
would meet the requirements for tank covers specified in
Sec. 264.1084(d) and Sec. 265.1085(d). It is not the EPA's intent to
allow an enclosure or building surrounding a tank to meet the control
requirements for the final subpart CC standards; see Hazardous Waste
TSDF Background Information for Promulgated Organic Air Emission
Standards for Tanks, Surface Impoundments, and Containers, EPA-
[[Page 4905]]
453/R-94-076b (``BID''), page 6-61. To make explicit what is already
implicit in the final rule, EPA is clarifying that an enclosure
surrounding a tank is not equivalent to a cover on a tank. Thus, the
EPA is removing the example of an enclosure from the definition of
``cover'' and is creating a separate definition for the term
``enclosure.''
The final subpart CC standards require enclosures surrounding open
fixation containers to meet airflow and pressure drop requirements, as
specified in paragraph (b)(2)(ii) of Sec. 264.1086 and Sec. 265.1087.
The EPA has received a number of requests from the public to more
clearly specify these requirements. In response, the EPA is
specifically defining the term ``enclosure'' such that an enclosure be
designed and operated in accordance with the requirements of
``Procedure T--Criteria for and Verification of a Permanent or
Temporary Total Enclosure'' contained in Sec. 52.741, appendix B. The
requirements of this procedure will provide facilities with a more
clear definition of the EPA's intent for the design and operation of
enclosures.
The EPA is also amending the term ``waste stabilization'' to
specifically exclude the process of adding non-reactive absorbent
material to the surface of a waste. The EPA recognizes that to meet
certain criteria under the Land Disposal Restrictions, or to prevent
the introduction of liquids into certain combustion devices, owners or
operators apply absorbent material to the surface of wastes just prior
to disposal. In such procedures, the container is opened, absorbent
material is placed on the surface of the waste to absorb a relatively
small amount of liquid, and the container is closed. No mixing or
agitation is involved in this process. The EPA's intended definition of
waste stabilization for the final subpart CC air rules does not include
processes that do not include mixing or agitation, and do not involve
curing (BID, p. 6-57). The EPA is amending the definition of ``waste
stabilization'' to clarify this intent.
3. Schedule for implementation of air emission standards
The December 6, 1994 published rule establishes additional air
standards for TSDF owners and operators subject to 40 CFR part 264 or
40 CFR part 265. All requirements enacted under this final action are
effective as of June 6, 1996. This includes the application of the
requirements of 40 CFR part 265 subparts AA, BB, and CC to 90-day
accumulation units at hazardous waste generators, and the application
of 40 CFR part 265 subparts AA, BB, and CC to facilities with final
RCRA permits.
The final rule provides that when the required air emission control
equipment cannot be operational at an existing hazardous waste
generator or TSDF by June 6, 1996, an implementation schedule for
installation of the equipment must be developed and placed in the
facility operating records no later than June 6, 1996. In such cases,
Sec. 265.1082(a)(2)(i) states that the facility owner or operator must
have all air emission controls required by the final rule in operation
no later than December 8, 1997.
The EPA also recognizes that certain affected facilities may
require time beyond June 6, 1996 to implement other provisions of the
final standards, such as developing a facility program to perform the
specified leak detection tests on tank covers. Also, generator and TSDF
facilities to which the requirements of subparts AA and BB are newly
applicable on the June 6, 1996 effective date may need additional time
to come into compliance with all provisions of those subparts. The EPA
expects such instances to be rare, but in the event a facility cannot
implement any technical requirement of subparts AA, BB, or CC, it is
the EPA's intent that the owner or operator document the necessity for
a delay in the facility operating record. To be in compliance with the
rule, the necessary documentation must be in place by the June 6, 1996
effective date. To be in compliance with the subpart CC standards,
affected facilities must have all required air emission controls
installed and operating no later than December 8, 1997. However,
facilities newly subject to subparts AA and BB must be in compliance
with all the requirements of those subparts no later than 30 months
after the effective date that the facility becomes subject to those
subparts. Paragraph (a)(2) in Sec. 264.1033 and Sec. 265.1033 is
amended to clarify this intent.
In addition, the EPA is clarifying that an affected unit which the
owner or operator intends to replace or remove may also be in
compliance through the use of an implementation plan. The EPA
recognizes that certain facilities may choose to comply with the
subpart CC air rules by replacing an existing hazardous waste
management unit, or by modifying their facility process such that a
given waste management unit is no longer necessary. The EPA also
realizes that facilities could require time beyond June 6, 1996 to
complete such modifications, during which time it may be necessary for
the facility to continue adding hazardous waste to the affected unit.
The EPA had therefore intended to allow the owner or operator to be in
compliance with the subpart CC standards provided that sufficient
documentation is entered into the facility operating record by the June
6, 1996 effective date. The facility operating record must contain
sufficient information to document the necessity to continue adding
hazardous waste to the unit after June 6, 1996, and document the owner
or operator's schedule and plan to cease adding hazardous waste to the
affected unit as soon as is feasible, but no later than December 8,
1997 (BID p. 9-6).
Paragraphs (b)(3) and (b)(4) in Sec. 264.1080 and Sec. 265.1080
specify that the subpart CC standards do not apply to tanks or surface
impoundments for which the owner or operator has begun implementing or
has completed closure pursuant to an approved closure plan, and into
which the owner or operator has stopped adding hazardous waste.
However, if a closure plan has not been approved for an affected unit,
the final subpart CC standards are applicable to that unit. In such a
case, the subpart CC standards require that on the June 6, 1996
effective date, if the affected unit is not equipped with the
appropriate air emission controls, no hazardous waste may be added to
that unit. In this situation, it is the EPA's intent that the owner or
operator would be in compliance with the subpart CC standards provided
that sufficient documentation is entered into the facility operating
record by the June 6, 1996 effective date. This is consistent with the
situation described in the previous paragraph where the removal of an
affected unit cannot be accomplished before the June 6, 1996 effective
date. As with the situation described above, the facility operating
record must contain sufficient information to document the inability of
the owner or operator to cease adding hazardous waste to the unit prior
to June 6, 1996. The facility operating record must also include the
owner or operator's schedule to obtain an approved closure plan, or to
cease adding hazardous waste to that unit, no later than December 8,
1997.
The December 6, 1994 published rule allowed an extended effective
date and compliance date for tanks in which stabilization operations
are performed, to allow interested parties time to submit data to the
EPA and to allow EPA time to review that data (59 FR at 62897). The
effective date for such tanks was originally December 6, 1995. Since
the publication of that final rule, the effective date of the final
standards for all rule provisions has been extended
[[Page 4906]]
until June 6, 1996 (60 FR 56952). Therefore, the EPA no longer
considers it necessary to provide a separate compliance schedule for
tanks in which stabilization operations are performed, and the
effective date for such tanks will be the June 6, 1996 effective date
of the final rule.
4. Standards: General
The owner or operator must install and operate the specified air
emission controls on every affected tank, surface impoundment, and
container used in the waste management sequence from the point of waste
origination through the point where the organics in the waste are
removed or destroyed by a process in accordance with the requirements
of the rule. The final rule provides seven options by which an owner or
operator may demonstrate that the required treatment or destruction of
organics has been accomplished, as specified in Sec. 265.1083(c)(2) (i)
through (vii). Depending on the nature of the affected hazardous waste,
the process through which the waste has been managed, or the treatment
applied to the waste, one or more of these seven demonstration options
may not be appropriate for a given waste stream. In recognition of
this, the EPA chose to allow seven different options to demonstrate
that effective treatment has been accomplished; the EPA recognizes that
not all of these seven options will be practical for demonstrations of
all waste treatment scenarios. However, the EPA believes that the
variety of waste treatment demonstrations allowed in the final subpart
CC rules does offer at least one demonstration alternative for most, if
not all, reasonable waste treatment scenarios.
Paragraph (c)(2)(iii) of Secs. 264.1082 and 265.1083 is one of the
seven options to demonstrate that waste has been treated to effectively
reduce the organics in accordance with the requirements of the final
subpart CC standards. In the December 6, 1994 published rule, this
option required that the ``actual organic mass removal rate (MR) for
the process is greater than the required organic mass removal rate
(RMR) for the process.'' The EPA had intended this provision to specify
that the MR for the process must be greater than or equal to the RMR.
The EPA is amending this provision to clarify that intent.
The seven options in Sec. 265.1083(c)(2) refer to a waste treatment
process that accomplishes specified organic destruction or removal. As
the term ``process'' is used in these requirements, the EPA refers to
either a single waste treatment unit, or a series of waste treatment
units. If a facility uses a series of waste treatment units, the
applicable exemption from controls applies to units downstream of the
point where the necessary removal or destruction occurs. Thus, points
downstream of the unit which accomplishes the 95th percentile reduction
would not be required to install and operate air emission controls.
Similarly, the requirement for covers on tanks and surface
impoundments do not apply to tanks or surface impoundments in which
biological degradation of the organics in the hazardous waste treated
in the unit is demonstrated to achieve specific performance levels.
Either of the following sets of conditions, as described in paragraph
(c)(2)(iv) of Sec. 264.1082 and Sec. 265.1083, must be demonstrated to
qualify for this exemption: (1) The organic reduction efficiency for
the process is equal to or greater than 95 percent, and the organic
biodegradation efficiency for the process is equal to or greater than
95 percent; or (2) the total actual organic mass biodegradation rate
for all hazardous waste treated by the process is equal to or greater
than the required organic mass removal rate (59 FR at 62915). A
biological treatment unit that is operated within a series of units
would not be required to be equipped with a cover provided that series
of units met one of the treatment demonstration options in
Sec. 265.1083(c)(2), and the biological treatment unit occurred in the
series at the point where the necessary treatment was achieved. In the
case of a treatment series that achieved a 95 percent reduction in
organics by weight as demonstrated by the requirements of
Sec. 265.1083(c)(2)(ii), the biological treatment unit could operate
without a cover provided that it was the unit achieving the 95th
percent control for the affected waste streams. However, if the
placement of the biological treatment unit in the treatment series was
prior to the achievement of the 95th percent organic reduction, the
biological treatment unit must operate with a cover and air emission
controls.
Paragraph (d) in Secs. 264.1082 and 265.1083 of the final rule
indicated that certain materials that are not hazardous wastes must be
controlled in accordance with the subpart CC standards. These final
standards are only applicable to RCRA hazardous waste. The EPA is
amending Secs. 264.1082(d) and 265.1083(d) to clarify that non-
hazardous wastes are not subject to the subpart CC standards. (This
means, incidentally, that wastes that become exempt from RCRA subtitle
C by virtue of an exemption such as the Bevill amendments (codified at
261.4(b)(7)) or the domestic sewage exclusion (codified at 261.4(a)(1))
would not be subject to the subpart CC rules.) In making this
clarification, the EPA also notes that it is not addressing here (or in
any way reopening) the issue of the types of treatment standards under
the Land Disposal Restriction program to which hazardous waste
treatment residues could be subject before land disposal. Such
treatment standards could apply to spent treatment residues that are
not themselves identified or listed as a hazardous waste. See 58 FR at
29866-868 and 29871-72 (May 24, 1993) and Chemical Waste Management v.
EPA, 976 F.2d 2, 16-18 (D.C. Cir. 1992), cert. denied 113 S. Ct. 1961
(1993). This same caveat applies with respect to the spent activated
carbon residue discussed at section 9 below.
5. Waste Determination Procedures
Under the final subpart CC standards, a TSDF owner or operator is
not required to determine the volatile organic concentration of the
waste if it is placed in a tank, surface impoundment, or container
using the required air emission controls. However, an owner or operator
must perform a determination of the average volatile organic (VO)
concentration for each hazardous waste placed in a waste management
unit exempted from using air emission controls based on the VO
concentration of the waste at its point of waste origination. The EPA
is amending paragraphs (a)(1) and (b)(1) of Sec. 264.1083 to clarify
this requirement.
The determination of the volatile organic concentration of
hazardous waste under the final subpart CC standards is based on the
organic composition of the waste at the ``point of waste origination.''
The ``point of waste origination'' is defined in Sec. 265.1081 of the
final rule with respect to the point where the TSDF owner or operator
first has possession of a hazardous waste. This definition specifies
that when the TSDF owner or operator is the generator of the hazardous
waste, the ``point of waste origination'' means the point where a solid
waste produced by a system, process, or waste management unit is
determined to be a hazardous waste as defined in 40 CFR part 261. In
such a case, the owner or operator may sample the hazardous waste at
its point of origination, or may sample the waste at a point downstream
from the point of origination, provided the downstream sampling point
provides an accurate representation of the waste volatile organic
concentration as it was at the point of waste origination. Simply put,
an owner or operator may sample
[[Page 4907]]
downstream of the point of origination provided the waste has not been
altered, mixed with other materials, or allowed to release any volatile
organic components prior to sampling. When neither the TSDF owner or
operator is the generator of the hazardous waste, the ``point of waste
origination'' means the point where the owner or operator accepts
delivery or takes possession of the hazardous waste. The EPA considers
this to be the point when and where the TSDF owner or operator accepts
the waste manifest document for the hazardous waste.
The preamble to the final subpart CC rule incorrectly stated that
to calculate the average of a waste stream using direct measurement,
``a sufficient number of samples, but no less than four, must be
collected to represent the complete range of organic compositions and
organic quantities that occur in the hazardous waste stream during the
entire averaging period'' (59 FR at 62916). The intended rule
requirement to take a minimum number of four waste samples is for the
performance of one single waste determination. The requirement for four
individual samples is intended to compensate for both variations in the
methodology and variations within a waste stream that may be due to
non-homogeneous waste mixtures. It is not acceptable to take four or
more individual samples of a waste stream, mix the samples, then
perform a method 25D analysis on the mixture. The requirements of
Sec. 265.1084(a)(5)(iv) specify the procedure by which the four or more
samples be analyzed by method 25D individually, and the results
mathematically averaged to produce one waste determination result. This
process accounts for test method variability as well as variability in
the waste stream and the waste samples.
The EPA recognizes that not all hazardous waste regulated by the
subpart CC standards is liquid or aqueous. Therefore, Sec. 4.1.4 of
method 25D (40 CFR part 60, appendix A) includes a sampling technique
for solid materials. For wastes that are solid or semi-solid, a
representative sample is obtained by placing a 10 gram sample of the
waste material into a vial containing the specified 30 mL of
polyethylene glycol. Once the sample is obtained, the method 25D
analysis is performed as it would be on any other waste sample.
To calculate an average volatile organic concentration for a waste
stream that has variations in the organic concentration, the owner or
operator must perform the number of waste determinations that are
necessary to adequately demonstrate that the waste stream volatile
organic concentration meets the applicable criteria. An owner or
operator may choose to perform a waste determination at a point where
they know the waste stream is at its maximum volatile organic
concentration for the averaging period. If the resulting average of the
four required Method 25D sample runs yields a volatile organic
concentration below 100 parts per million by weight (ppmw), the owner
or operator would not need to perform additional waste determinations
for that averaging period. However, if the owner or operator was not
able to perform a waste determination at the point of the waste
stream's maximum volatile organic concentration, they could be required
to perform additional waste determinations during the averaging period
to sufficiently calculate a mass-weighted average volatile organic
concentration. The final subpart CC standards specify that the facility
owner or operator enter into the facility record a test plan that
demonstrates how they will perform a representative volatile organic
concentration determination.
The final subpart CC rules require that a waste determination be
performed prior to the first time a hazardous waste is placed in an
affected unit on or after June 6, 1996. Section 265.1084(a)(2) (i) and
(ii) specify the process to determine the average VO concentration for
waste streams generated as part of a continuous process or generated as
part of a batch process that is performed repeatedly but not
necessarily continuously. The EPA is amending Sec. 265.1084(a)(2) to
clarify that for waste generated as part of a batch process that is not
performed repeatedly, the owner or operator shall perform a waste
determination of the VO concentration of the waste in the batch. The
EPA is amending Sec. 265.1084(b)(2) to clarify the similar waste
determination procedures for treated hazardous waste.
The procedures in paragraphs (a)(5), (a)(6) and (b)(4) of
Sec. 265.1084 for determining the average VO concentration of a
hazardous waste require that the owner or operator have sufficient
knowledge of any variations in the volatile organic concentration of
their affected waste streams throughout the averaging period. An owner
or operator who does not have sufficient knowledge of variations in the
VO concentration of their waste stream prior to June 6, 1996, may not
be eligible to determine compliance with the final rule using the
average VO concentration for their affected waste streams. The option
to use an average volatile organic waste concentration requires
sufficient knowledge of the waste stream, and if that knowledge is not
available, the option is not allowed. In such a case, the owner or
operator would be required to install and operate air emission controls
on each affected unit receiving hazardous waste on or after June 6,
1996 (as required by paragraph (b) of Sec. 264.1082 and Sec. 265.1083),
or to determine that at no time waste with a VO concentration greater
than or equal to 100 ppmw is placed in a unit not equipped with the
required air emission controls (as required by paragraph (c) of
Sec. 264.1082 and Sec. 265.1083). In essence, each and every portion of
the hazardous waste entering the unit would be considered to be a
discrete quantity that is not generated as part of a batch process;
therefore, the average VO concentration of each of these discrete
quantities of waste would be the same as its measured VO concentration
(as described in Sec. 265.1084(a)(2)(iii) and Sec. 265.1084(b)(2)(iii),
as amended by today's action).
In Sec. 265.1084(a)(5)(v)(C) the equation to determine the average
VO concentration of the hazardous waste at the point of waste
origination was printed with an incorrect symbol representing the
average VO concentration of the hazardous waste at the point of waste
origination. The EPA is revising that equation to specify the correct
symbol.
Section 265.1084(a)(6)(iii) of the final subpart CC standards
allows an owner or operator to determine the volatile organic
concentration of a hazardous waste using knowledge that is based on
information supplied by the generator of the waste. The generator-
prepared information can be included in manifests, shipping papers, or
waste certification notices accompanying the waste shipment, as agreed
upon between the waste generator and the TSDF owner or operator. The
subpart CC final rules do not impose requirements for a generator to
provide such documentation to a TSDF. Rather, where such information
does exist, the TSDF owner or operator has the option to use that
information to perform the volatile organic waste determination or the
volatile organic vapor pressure determination upon accepting delivery
or taking possession of the hazardous waste. The EPA is amending
paragraph (b)(8) of Sec. 264.13 and Sec. 265.13 to clarify this intent.
The validity of any information used to comply with these final
standards is the responsibility of the owner or operator who has
custody of the waste. Therefore, a TSDF owner or operator should rely
on waste information only if it is provided by a source in whose
accuracy they have confidence.
[[Page 4908]]
The December 6, 1994 published rule incorrectly referenced the
requirements by which waste streams entering a process must be
measured, at Sec. 265.1084(b)(6)(iii)(B) and in the nomenclature for
CBj at Sec. 265.1084(b)(6)(iv). The EPA is amending these
provisions to reference the requirements contained in paragraph
(a)(5)(iv). The EPA is also amending the nomenclature for QAj in
Sec. 265.1084(b)(6)(iv) to clarify that it represents the mass quantity
of waste exiting the process.
To determine the maximum organic vapor pressure of a hazardous
waste in a tank using Method 25E, an owner or operator shall collect a
minimum of three waste samples. It was the intent of the EPA to defer
to the Clean Air Act General Provisions contained in Sec. 60.8(f) to
specify the number of samples required for a Method 25E analysis.
However, the subpart CC standards are not subject to Sec. 60.8(f);
therefore, this information was not referenced for the final subpart CC
standards. The EPA is amending the requirements of paragraph
265.1084(c) to require that, unless otherwise specified in the method
being used, a minimum of three samples shall be taken when using any of
the methods listed in Sec. 265.1084(c)(3)(ii). To perform a Method 25E
analysis, each of these samples shall be analyzed separately, and the
result of the analysis mathematically averaged. The requirements of
Method 25E specify the procedure to analyze the samples and
mathematically average the analytical results.
6. Standards: Tanks
In the final subpart CC tank standards, paragraph (b)(4) of
Sec. 264.1084 and Sec. 265.1085 allows the use of a pressure tank to
manage affected hazardous waste. The EPA did not intend to specify
operating conditions or a minimum internal pressure that must be met to
comply with the option. For the purpose of complying with this
provision of the subpart CC standards, the EPA is clarifying that a
pressure tank must be designed and operated such that the internal
pressure is above atmospheric pressure and the tank operates as a
closed system, with no detectable emissions occurring during routine
operations including filling and emptying (BID p. 6-51). Therefore, the
tank must be designed and operated to withstand the pressure of having
the vapor space of the waste compressed until the tank is filled to
design capacity. The EPA is amending the tank standards to clarify this
requirement.
The EPA intended that the final subpart CC standards allow tanks to
operate with a fixed-roof type cover without any additional air
emission controls provided certain conditions were met (59 FR at
62917). As published in the December 6, 1994 final standards, paragraph
(c) of Sec. 264.1084 and Sec. 265.1085 did not correctly convey the
EPA's intent for this provision. The EPA is revising these paragraphs
of the tank standards to clarify that for the purposes of compliance
with the subpart CC standards, tanks meeting the specified waste
management requirements can operate fixed-roof type covers without
additional air emission controls.
One of the conditions that must be met for this provision is that
no turbulent agitation may occur on the surface of the waste, as
described in paragraph (c)(1) of Sec. 264.1084 and Sec. 265.1085. Such
turbulence on the surface of a waste increases emission of organics
from the waste to the air. This cover-only option was provided for
tanks that are used for waste storage, and in which no waste treatment
is occurring. The cover-only option of paragraph (c)(1) does not
provide effective emission control for waste that is managed such that
there is visible turbulent flow on the surface of the waste. The EPA
considers that the requirements of paragraph (c)(1) are consistent with
the provisions of the New Source Performance Standard for volatile
organic liquid storage vessels under 40 CFR part 60, subpart Kb, after
which the technical requirements for fixed-roof covers were modelled.
The EPA does not intend to specify a test to measure turbulent flow, or
to otherwise narrowly define the conditions that meet this paragraph.
The EPA does wish to clarify that for a tank through which the waste
surface is not viewable, an owner or operator may elect to use
engineering calculations and modelling to determine if the surface of
the hazardous waste managed in a tank has turbulent flow that would be
visible.
The EPA recognizes that, for certain hazardous wastes managed in
tanks, it may be necessary to continuously mix, stir or circulate the
waste inside the tank during normal storage operations. For instance,
the properties of the waste may be such that it is necessary to
continuously stir the waste to prevent phase separation or to prevent
the waste from solidifying. Paragraph (c)(1) of Sec. 264.1084 and
Sec. 265.1085 prohibits such activities if they result in splashing,
frothing, or visible turbulent flow on the surface of the waste.
However, an owner or operator may perform continuous or frequent mixing
operations in a cover-only tank, provided the operation does not cause
visible turbulent flow on the surface of the waste. To be allowed under
the requirements of paragraph (c)(1), such a mixing operation must be
designed and performed to operate without causing visible turbulent
flow on the waste surface. To design and operate a mixing system to
ensure that visible turbulent flow does not occur, the owner or
operator must consider all relevant factors, including mixing speed,
position of the mixing apparatus, and waste level in the tank. If the
mixing apparatus is positioned and designed such that visible turbulent
flow occurs when the waste is below a certain level in the tank, the
mixing operation must be ceased when the waste is not above that level
in the tank. During such a period, visible turbulent flow on the
surface of the waste would be allowed if it resulted from an
intermittent required operation, such as loading waste into the tank.
The EPA recognizes that owners or operators may need to mix, stir
or circulate the waste that is stored in tanks to occasionally perform
certain necessary operations, and these actions may result in
splashing, frothing, or visible turbulent flow. Examples of this
include mixing waste contents at sample times to facilitate obtaining a
representative waste sample, and causing visible turbulent flow on the
waste surface during transfer of hazardous waste into or from the tank.
In such a situation, there would be a mixing apparatus available to be
used in the tank, but this apparatus would not be in use during normal
waste storage operations. The EPA considers some degree of splashing,
frothing, or visible turbulent flow to be allowable, provided that the
activity causing this condition is waste sampling, waste transfer, or a
similar necessary operation that is performed infrequently. The
requirements of Sec. 264.1084(c)(1) and Sec. 265.1085(c)(1) specify
that the disallowed waste management activities must not be part of the
normal process operations for that tank. The EPA intends that provision
to prohibit continual or usual performance of such procedures, but
allow the procedure when necessary to perform intermittent operations,
such as waste sampling or waste transfer (BID p. 6-54). Therefore, a
tank for which the waste transfer operation is continuous or occurs
frequently and causes visible turbulent flow, should be equipped with
organic emission controls in accordance with paragraph (b) of
Sec. 264.1084 and Sec. 265.1085. Similarly, the EPA intends that this
clarification also apply to hazardous waste management in surface
impoundments complying with the
[[Page 4909]]
floating membrane cover provisions of Sec. 264.1085(c) and
Sec. 265.1086(c).
An additional condition that must be met for the fixed-roof cover
control option requires that the waste managed in the unit have a
volatile organic vapor pressure below certain limits based on the
capacity of the tank, as described in paragraph (c)(4) of Sec. 264.1084
and Sec. 265.1085. The waste managed in the tank must meet the
appropriate volatile organic vapor pressure limits at the highest vapor
pressure that will occur under normal operating conditions. Unlike the
waste volatile organic concentration determination which must represent
individual waste streams prior to mixing or dilution, the waste organic
vapor pressure determination must indicate the vapor pressure of the
actual mixture of waste that is managed in the tank. The waste organic
vapor pressure to be compared to the limits specified in
Sec. 264.1084(c)(4) and Sec. 265.1085(c)(4) of the final rule is the
highest pressure present among any temperatures at which the waste is
present in the tank.
The EPA had intended the final subpart CC standards to allow fixed-
roof covers on tanks to be equipped with one or more pressure relieving
devices that vent directly to the atmosphere to allow for the relief of
pressure or vacuum caused by normal operations (BID p. 6-47). For the
purposes of this provision the EPA requires that the pressure relieving
device be a normally closed device that opens only when a pressure or
vacuum is created in the unit. The EPA does not intend to specify
parameters for the operation or setting of such pressure relieving
device, but rather has established a performance standard that the
facility owner or operator design and operate the conservation vents so
that emissions to the atmosphere are minimized, yet tank integrity is
protected, in accordance with sound engineering design specifications
and practices appropriate for the affected tank. This provision is
clarified in the amendments to paragraph (c) of Sec. 264.1084 and
Sec. 265.1085. This allowance for pressure relieving devices differs
from the final rule allowance for safety devices described in paragraph
(g) of Sec. 264.1084 and Sec. 265.1085, which are only allowed to vent
to the atmosphere during unplanned events. Units not eligible to be
equipped with pressure relieving devices that open during normal
operations include pressure tanks, and tanks equipped with floating
roofs.
7. Standards: Surface Impoundments
In the December 6, 1994 published rule, paragraph (d) of
Sec. 264.1085 and Sec. 265.1086 incorrectly referenced paragraph
(b)(1), which does not exist. The EPA is amending paragraph (d) of
these sections to reference paragraph (b), as intended.
8. Standards: Containers
In Sec. 264.1086 and Sec. 265.1087, paragraph (b)(1) lists three
options to demonstrate compliance for containers used to manage
hazardous waste subject to subpart CC. The first option, in paragraph
(b)(1)(i), specifies that the container operates with no detectable
emissions as tested by Method 21 in 40 CFR part 60 appendix A. This
option is appropriate for any container subject to subpart CC,
including the types of containers specified in the second and third
options. The second option, in paragraph (b)(1)(ii), is a container
with a capacity of 0.46 cubic meters, which complies with all
Department of Transportation regulations for packaging hazardous waste
for transport under 40 CFR part 178. The third option, in paragraph
(b)(2)(iii), is a tank truck or rail car that has been demonstrated
within the previous 12 months to be organic vapor tight using the
pressure test specified in Method 27 of 40 CFR part 60 appendix A. The
EPA has received several questions regarding the applicability of
Method 27 for use on vehicular containers that are not equipped with a
vapor recovery system. This method is a pressure test procedure
originally developed by the EPA for determining the vapor-leak
tightness of a gasoline tank truck equipped with a vapor recovery
system. The EPA also considers Method 27 appropriate on tank trucks and
rail cars that are used to manage hazardous waste, regardless of
whether the tank truck or rail car is equipped with a vapor recovery
system. As described above, an owner or operator of a tank truck or
rail car has the option to comply with paragraph (b)(1)(i), and
demonstrate no detectable emissions by Method 21, as does the owner or
operator of any container equal to or less than 0.46 m\3\ in capacity.
Paragraph (b)(2)(ii) of Sec. 264.1086 and 265.1087 of the December
6, 1994 final standards describes the criteria for an enclosure in
which stabilization operations performed in open containers must be
located. In describing the requirements for the enclosure, the EPA had
intended to paraphrase the specifications of Procedure T in Appendix B
to Sec. 52.741, titled ``Criteria for and Verification of a Permanent
or Temporary Total Enclosure.'' To better clarify the intended
requirements for container enclosures, the EPA is revising the
enclosure requirements of paragraph (b)(2)(ii) to specifically
reference Procedure T in Sec. 52.741, Appendix B.
The waste transfer requirements specified in paragraph (b)(3) of
Sec. 264.1086 and Sec. 265.1087 of the final rule for containers are
intended to reduce exposure of hazardous waste to the atmosphere.
Paragraph (b)(3)(i) specifically describes submerged-fill techniques to
be used; however, the EPA does not intend that submerged-fill be
performed in situations where the process of submerged-fill increases
waste exposure to the atmosphere, or worker exposure to hazardous
wastes. Certain splash loading operations are performed through a
fitted opening in the top of a container, and the transfer line is
subsequently purged with nitrogen gas to clean the interior of the line
before it is removed from the container opening. This transfer practice
could result in less waste exposure than a submerged-fill practice
performed for the same waste and container. Another container loading
practice is vapor balancing, in which the vapors displaced by
transferring waste into a container are routed to the unit from which
the waste was transferred. Thus, the EPA is adding clarifying language
to the container transfer requirements of paragraph (b)(3) in
Sec. 264.1086 and Sec. 265.1087 to direct owners or operators to
transfer waste using the procedure that will minimize exposure of waste
to the atmosphere.
The submerged filling procedure described in the final subpart CC
standards is one procedure that may be appropriate for waste transfer
into containers, but the EPA is amending these provisions to direct
owners or operators to employ the container filling practice most
appropriate for their facility operation.
The EPA originally intended the subpart CC final rules to allow
containers to vent emissions directly to the atmosphere during filling
operations. The December 6, 1994 final rules only allowed for venting
through the opening through which waste was transferred. The EPA
intended to allow venting during waste transfer operations either
through the opening through which the waste is transferred, or through
a second opening that would serve as a vent. In addition to the
amendment to paragraph (b)(3) described above, the EPA is amending
paragraph (c) of Sec. 264.1086 and Sec. 265.1087 to clarify this
venting allowance.
9. Closed-Vent Systems and Control Devices
The final subpart CC standards added requirements for the
management of
[[Page 4910]]
spent carbon removed from a carbon adsorption system used to comply
with the subpart AA, BB, and CC standards. The EPA is clarifying that
the carbon management requirements are only applicable to carbon that
is hazardous waste. Spent carbon is hazardous if it exhibits a
characteristic of hazardous waste or if it is listed. Spent carbon
deriving from the treatment of listed hazardous waste is considered to
be a type of listed waste by virtue of the derived from rule found at
Sec. 261.3(c)(2). See also 56 FR at 7200 (February 21, 1991).
The EPA is amending the spent carbon management requirements of
Secs. 264.1033(m) and 265.1033(l), and paragraph (c)(3)(ii) of
Sec. 264.1087 and Sec. 265.1088 to clarify the intent described today.
The EPA is also revising Secs. 264.1033(m) and 265.1033(l) to allow
management of affected spent carbon to be conducted in certain interim
status units in addition to the permitted units specified in the
December 6, 1994 published rule.
10. Inspection and Monitoring Requirements
As published in the December 6, 1994 final rule,
Secs. 264.1033(k)(2) and 265.1033(j)(2) allowed that after the required
initial leak detection monitoring, an owner or operator is not required
to conduct annual monitoring on those closed-vent system components
which continuously operate in vacuum service. The EPA had intended that
this allowance apply to system components continuously operating under
negative pressure, because such systems would not release constituents
to the atmosphere even if there were a rupture or other loss of
integrity to the component (BID p. 6-100). However, the EPA specified
the term ``in vacuum service,'' which requires that a system operate at
an internal pressure at least 5 kPa below ambient pressure, under the
assumption that systems operating under negative pressure would meet
this requirement. The use of the term ``in vacuum service'' has
prompted several questions from the public asking EPA to clarify
whether systems operated under negative pressure, but not necessarily
in vacuum service, must be monitored annually after the initial leak
detection monitoring. The EPA had intended to not require annual
monitoring of closed-vent system components which operate under
pressure such that all emissions are routed to a control device even if
a leak or hole exists in the component. A component that continuously
operates under negative pressure would satisfy this intent, even if the
component does not necessarily operate in vacuum service. Therefore,
the EPA is amending Secs. 264.1033(k)(2) and 265.1033(j)(2) to specify
that, after the initial leak detection monitoring, an owner or operator
is not required to monitor system components which continuously operate
under negative pressure.
As published in the December 6, 1994 standards, the reference in
paragraph (d) of Sec. 264.1088 and Sec. 265.1089 incorrectly specified
that certain control devices used to comply with the subpart CC
standards must be inspected and monitored in accordance with the
procedures specified in Sec. 264.1033(f). The EPA had intended that
this reference should be to Sec. 264.1033(f)(2). The EPA is amending
paragraph (d) in Sec. 264.1088 and Sec. 265.1089 to correct this
reference and to clarify the frequency of monitoring and the
requirement for corrective measures.
11. Recordkeeping Requirements
The EPA is amending Sec. 264.1089(a)(1) and Sec. 265.1090(a)(1)
such that these paragraphs correctly reference paragraph 265.1091(a) of
the alternative tank control requirements. The EPA is also amending
Sec. 264.1089(e) and Sec. 265.1090(e) such that these paragraphs
correctly specify recordkeeping requirements for a hazardous waste
incinerator and boiler or industrial furnace used to comply with the
treatment demonstration options in Sec. 264.1082 and Sec. 265.1083.
These amendments clarify references that were incorrectly printed in
the December 6, 1994 published standards (59 FR 62896).
12. Reporting Requirements
The EPA is amending Sec. 264.1090 (c) and (d) to clarify what
noncompliance occurrences for control device operations a facility
owner or operator must report to their Regional Administrator.
13. Alternative Control Requirements for Tanks
Paragraph 265.1091(a)(1)(i) of the final subpart CC standards
specifies filling requirements for a tank equipped with an internal
floating roof. The requirement is that when the roof is resting on the
leg supports, the process of filling, emptying, or refilling shall be
continuous and shall be accomplished as rapidly as possible. The intent
of this requirement is to minimize the time during which a vapor space
exists between the floating roof and the stored waste. EPA recognizes
that facility owners or operators may not have full control over the
amount and handling of waste transferred into their tanks, and this may
lead to periods when the filling of a tank may not be continuous.
Therefore, the EPA is clarifying this requirement to state that the
process of filling shall be as continuous as possible, based on the
amount of waste and the nature of the waste handling operation.
14. Immediate Effective Date
The EPA has determined to make today's action effective
immediately. The EPA believes that the corrections being made in this
document are either interpretations of existing regulations which do
not require prior notice and opportunity for comment, or are technical
corrections of obvious errors in the published rule (for example
corrections of regulatory language that is inconsistent with the
preamble, BID, or with otherwise clearly indicated EPA intent) for
which comment is unnecessary (within the meaning of 5 USC
553(b)(3)(B)). In addition, the EPA notes that many of these
clarifications result from the public comment obtained at various
public meetings regarding the subpart CC standards that were held
during the summer of 1995. Thus, the EPA has provided for a measure of
opportunity to comment.
Docket. Five RCRA dockets contain information pertaining to today's
rulemaking: (1) RCRA docket number F-91-CESP-FFFFF, which contains
copies of all BID references and other information related to the
development of the rule up through proposal; (2) RCRA docket number F-
92-CESA-FFFFF, which contains copies of the supplemental data made
available for public comment prior to promulgation; (3) RCRA docket
number F-94-CESF-FFFFF, which contains copies of all BID references and
other information related to development of the final rule following
proposal; (4) RCRA docket number F-94-CE2A-FFFFF, which contains
information pertaining to waste stabilization operations performed in
tanks; and (5) RCRA docket number F-95-CE3A-FFFFF, which contains
information about potential final rule revisions made available for
public comment. The public may review all materials in these dockets at
the EPA RCRA Docket Office.
The EPA RCRA Docket Office is located at Crystal Gateway, 1235
Jefferson Davis Highway, First Floor, Arlington, Virginia. Hand
delivery of items and review of docket materials are made at the
Virginia address. The public must have an appointment to review docket
materials. Appointments can be scheduled by calling the Docket Office
at (703) 603-9230. The mailing address for the RCRA Docket Office is
RCRA
[[Page 4911]]
Information Center (5305W), 401 M Street SW., Washington, DC 20460. The
Docket Office is open from 9 a.m. to 4 p.m., Monday through Friday,
except for Federal holidays.
Legal Authority
These regulations are amended under the authority of sections 2002,
3001-3007, 3010, and 7004 of the Solid Waste Disposal Act of 1970, as
amended by RCRA, as amended (42 U.S.C. 6921-6927, 6930, and 6974).
List of Subjects
40 CFR Part 262
Environmental protection, Accumulation time, Air pollution control,
Container, Tank.
40 CFR Parts 264 and 265
Air pollution control, Container, Control device, Hazardous waste,
Incorporation by reference, Inspection, Miscellaneous unit, Monitoring,
Reporting and recordkeeping requirements, Standards, Surface
impoundment, Tank, TSDF, Waste determination.
40 CFR Part 270
Administrative practice and procedure, Air pollution control,
Confidential business information, Hazardous waste, Permit, Permit
modification, Reporting and recordkeeping requirements.
Dated: December 18, 1995.
Mary D. Nichols,
Assistant Administrator for Air and Radiation.
For the reasons set out in the preamble, title 40, chapter I, parts
262, 264, 265, 270, and 271 of the Code of Federal Regulations is
amended as follows:
PART 262--STANDARDS APPLICABLE TO GENERATORS OF HAZARDOUS WASTE
1. The authority citation for part 262 continues to read as
follows:
Authority: 42 U.S.C. 6906, 6912(a), 6922, 6923, 6924, 6925, 6937
and 6938, unless otherwise noted.
Sec. 262.34 [Amended]
2. Section 262.34(a)(1)(i) is amended by inserting a comma after
``subparts I'' to read ``subparts I, AA, BB and CC''.
PART 264--STANDARDS FOR OWNERS AND OPERATORS OF HAZARDOUS WASTE
TREATMENT, STORAGE, AND DISPOSAL FACILITIES
3. The authority citation for part 264 continues to read as
follows:
Authority: 42 U.S.C. 6905, 6912(a), 6924 and 6925.
Subpart B--General Facility Standards
4. Section 264.13 is amended by revising paragraphs (b)(8) (i) and
(ii) to read as follows:
Sec. 264.13 General waste analysis.
* * * * *
(b) * * *
(8) * * *
(i) If direct measurement is used for the waste determination, the
procedures and schedules for waste sampling and analysis, and the
results of the analysis of test data to verify the exemption.
(ii) If knowledge of the waste is used for the waste determination,
any information prepared by the facility owner or operator or by the
generator of the hazardous waste, if the waste is received from off-
site, that is used as the basis for knowledge of the waste.
Subpart AA--Air Emission Standards for Process Vents
5. In Sec. 264.1033 the second sentence of paragraph (a)(2) is
revised, paragraph (k)(2) is revised, and paragraph (m) is revised to
read as follows:
Sec. 264.1033 Standards: Closed-vent systems and control devices.
(a) * * *
(2) * * * The controls must be installed as soon as possible, but
the implementation schedule may allow up to 30 months after the
effective date that the facility becomes subject to this subpart for
installation and startup. * * *
* * * * *
(k) * * *
(2) Closed-vent systems shall be monitored to determine compliance
with this section during the initial leak detection monitoring, which
shall be conducted by the date that the facility becomes subject to the
provisions of this section, annually, and at other times as requested
by the Regional Administrator. For the annual leak detection monitoring
after the initial leak detection monitoring, the owner or operator is
not required to monitor those closed-vent system components which
continuously operate under negative pressure or those closed-vent
system joints, seams, or other connections that are permanently or
semi-permanently sealed (e.g., a welded joint between two sections of
metal pipe or a bolted and gasketed pipe flange).
* * * * *
(m) The owner or operator using a carbon adsorption system shall
document that all carbon removed that is a hazardous waste and that is
removed from a carbon adsorption system used to comply with
Sec. 264.1033(g) and Sec. 264.1033(h) is managed in one of the
following manners, regardless of the volatile organic concentration of
that carbon:
(1) Regenerated or reactivated in a thermal treatment unit for
which the owner or operator has been issued a final permit under 40 CFR
part 270, and designs and operates the unit in accordance with the
requirements of subpart X of this part;
(2) Incinerated in a hazardous waste incinerator for which the
owner or operator either:
(i) Has been issued a final permit under 40 CFR part 270, and
designs and operates the unit in accordance with the requirements of
subpart O of this part; or
(ii) Has certified compliance with the interim status requirements
of 40 CFR part 265, subpart O; or
(3) Burned in a boiler or industrial furnace for which the owner or
operator either:
(i) Has been issued a final permit under 40 CFR part 270, and
designs and operates the unit in accordance with the requirements of 40
CFR part 266, subpart H; or
(
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