issue-1996-02-21•Federal Register final rules — 1996-02-21
Federal Register final rules — 1996-02-21
issue-1996-02-21Federal Register final rules — 1996-02-21Regulation
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. 96-3875 Changes in Flood Elevation Determinations
[Federal Register Volume 61, Number 35 (Wednesday, February 21, 1996)]
[Rules and Regulations]
[Pages 6564-6565]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-3875]
-----------------------------------------------------------------------
FEDERAL EMERGENCY MANAGEMENT AGENCY
44 CFR Part 65
[Docket No. FEMA-7169]
Changes in Flood Elevation Determinations
AGENCY: Federal Emergency Management Agency, FEMA.
ACTION: Interim rule.
-----------------------------------------------------------------------
SUMMARY: This interim rule lists communities where modification of the
base (1% annual chance) flood elevations is appropriate because of new
scientific or technical data. New flood insurance premium rates will be
calculated from the modified base flood elevations for new buildings
and their contents.
DATES: These modified base flood elevations are currently in effect on
the dates listed in the table and revise the Flood Insurance Rate
Map(s) (FIRMs) in effect prior to this determination for each listed
community.
From the date of the second publication of these changes in a
newspaper of local circulation, any person has ninety (90) days in
which to request through the community that the Associate Director
reconsider the changes. The modified elevations may be changed during
the 90-day period.
ADDRESSES: The modified base flood elevations for each community are
available for inspection at the office of the Chief Executive Officer
of each community. The respective addresses are listed in the following
table.
FOR FURTHER INFORMATION CONTACT: Michael K. Buckley, P.E., Chief,
Hazard Identification Branch, Mitigation Directorate, 500 C Street,
SW., Washington, DC 20472, (202) 646-2756.
SUPPLEMENTARY INFORMATION: The modified base flood elevations are not
listed for each community in this interim rule. However, the address of
the Chief Executive Officer of the community where the modified base
flood elevation determinations are available for inspection is
provided.
Any request for reconsideration must be based upon knowledge of
changed conditions, or upon new scientific or technical data.
The modifications are made pursuant to section 201 of the Flood
Disaster Protection Act of 1973, 42 U.S.C. 4105, and are in accordance
with the National Flood Insurance Act of 1968, 42 U.S.C. 4001 et seq.,
and with 44 CFR part 65.
For rating purposes, the currently effective community number is
shown and must be used for all new policies and renewals.
The modified base flood elevations are the basis for the floodplain
management measures that the community is required to either adopt or
to show evidence of being already in effect in order to qualify or to
remain qualified for participation in the National Flood Insurance
Program.
These modified elevations, together with the floodplain management
criteria required by 44 CFR 60.3, are the minimum that are required.
They should not be construed to mean that the community must change any
existing ordinances that are more stringent in their floodplain
management requirements. The community may at any time enact stricter
requirements of its own, or pursuant to policies established by other
Federal, state or regional entities.
The changes in base flood elevations are in accordance with 44 CFR
65.4.
National Environmental Policy Act
This rule is categorically excluded from the requirements of 44 CFR
Part 10, Environmental Consideration. No environmental impact
assessment has been prepared.
Regulatory Flexibility Act
The Associate Director, Mitigation Directorate, certifies that this
rule is exempt from the requirements of the Regulatory Flexibility Act
because modified base flood elevations are required by the Flood
Disaster Protection Act of 1973, 42 U.S.C. 4105, and are required to
maintain community eligibility in the National Flood Insurance Program.
No regulatory flexibility analysis has been prepared.
Regulatory Classification
This interim rule is not a significant regulatory action under the
criteria of section 3(f) of Executive Order 12866 of September 30,
1993, Regulatory Planning and Review, 58 FR 51735.
Executive Order 12612, Federalism
This rule involves no policies that have federalism implications
under Executive Order 12612, Federalism, dated October 26, 1987.
Executive Order 12778, Civil Justice Reform
This rule meets the applicable standards of section 2(b)(2) of
Executive Order 12778.
List of Subjects in 44 CFR Part 65
Flood insurance, Floodplains, Reporting and recordkeeping
requirements.
Accordingly, 44 CFR part 65 is amended to read as follows:
PART 65--[AMENDED]
1. The authority citation for part 65 continues to read as follows:
Authority: 42 U.S.C. 4001 et seq.; Reorganization Plan No. 3 of
1978, 3 CFR, 1978 Comp., p. 329; E.O. 12127, 44 FR 19367, 3 CFR,
1979 Comp., p. 376.
[[Page 6565]]
Sec. 65.4 [Amended]
2. The tables published under the authority of Sec. 65.4 are
amended as follows:
--------------------------------------------------------------------------------------------------------------------------------------------------------
Chief executive
State and county Location Dates and name of newspaper officer of Effective date of Community
where notice was published community modification No.
--------------------------------------------------------------------------------------------------------------------------------------------------------
Georgia: Cobb............... City of Marietta............ Nov. 3, 1995, Nov. 10, 1995, The Honorable Oct. 23, 1995............... 130226 F
Marietta Daily Journal. Ansley
Meaders, Mayor
of the City of
Marietta, P.O.
Box 609,
Marietta,
Georgia 30061.
Indiana: Hamilton........... City of Carmel.............. Nov. 8, 1995, Nov. 15, 1995, The Honorable Oct. 31, 1995............... 180081 C
Carmel News Tribune. Ted Johnson,
Mayor of the
City of
Carmel, One
Civic Square,
Carmel,
Indiana 46032.
North Carolina: Henderson... City of Hendersonville...... Nov. 3, 1995, Nov. 10, 1995, The The Honorable May 6, 1996................. 370128 B
Times News. Fred Neihoff,
Mayor of the
City of
Hendersonville
, P.O. Box
1670,
Hendersonville
, North
Carolina 28793.
Ohio: Fairfield and Franklin City of Columbus............ Aug. 30, 1995, Sept. 6, 1995, The Honorable Aug. 23, 1995............... 390170 G
Counties. The Columbus Dispatch. Gregory
Lashutka,
Mayor of the
City of
Columbus,
Columbus City
Hall, 90 West
Broad Street,
Columbus, Ohio
43215.
Pennsylvania: Clinton....... Borough of Flemington....... Nov. 21, 1995, Nov. 28, 1995, Mr. Gerry Nov. 13, 1995............... 420326 B
The Lock Haven Express. Yanneralla,
President of
the Flemington
Borough
Council, 126
High Street,
Flemington,
Pennsylvania
17745.
Virginia: Roanoke........... Unincorporated areas........ Nov. 16, 1995, Nov. 23, 1995, Mr. Elmer Nov. 3, 1995................ 510190 D
Roanoke Times & World News. Hodge, Roanoke
County
Administrator,
P.O. Box
29800,
Roanoke,
Virginia 24018.
Wisconsin: Juneau........... Wonewoc (Village)........... June 8, 1995, June 15, 1995, The Mr. John P. May 25, 1995................ 550208 C
Wonewoc Reporter. Cler, Village
of Wonewoc
President,
P.O. Box 37,
Wonewoc,
Wisconsin
53968-0037.
--------------------------------------------------------------------------------------------------------------------------------------------------------
(Catalog of Federal Domestic Assistance No. 83.100, ``Flood
Insurance.'')
Dated: February 9, 1996.
Richard W. Krimm,
Acting Associate Director for Mitigation.
[FR Doc. 96-3875 Filed 2-20-96; 8:45 am]
BILLING CODE 6718-04-P
Complete official Federal Register PDF
FR Doc. 96-3874 Changes in Flood Elevation Determinations
[Federal Register Volume 61, Number 35 (Wednesday, February 21, 1996)]
[Rules and Regulations]
[Pages 6565-6567]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-3874]
-----------------------------------------------------------------------
FEDERAL EMERGENCY MANAGEMENT AGENCY
44 CFR Part 65
[Docket No. FEMA-7165]
Changes in Flood Elevation Determinations
AGENCY: Federal Emergency Management Agency, FEMA.
ACTION: Interim rule.
-----------------------------------------------------------------------
SUMMARY: This interim rule lists communities where modification of the
base (1% annual chance) flood elevations is appropriate because of new
scientific or technical data. New flood insurance premium rates will be
calculated from the modified base flood elevations for new buildings
and their contents.
DATES: These modified base flood elevations are currently in effect on
the dates listed in the table and revise the Flood Insurance Rate
Map(s) (FIRMs) in effect prior to this determination for each listed
community.
From the date of the second publication of these changes in a
newspaper of local circulation, any person has ninety (90) days in
which to request through the community that the Associate Director
reconsider the changes. The modified elevations may be changed during
the 90-day period.
ADDRESSES: The modified base flood elevations for each community are
available for inspection at the office of the Chief Executive Officer
of each community. The respective addresses are listed in the following
table.
FOR FURTHER INFORMATION CONTACT: Michael K. Buckley, P.E., Chief,
Hazard Identification Branch, Mitigation Directorate, 500 C Street,
SW., Washington, DC 20472, (202) 646-2756.
SUPPLEMENTARY INFORMATION: The modified base flood elevations are not
listed for each community in this interim rule. However, the address of
the Chief Executive Officer of the community where the modified base
flood elevation determinations are available for inspection is
provided.
Any request for reconsideration must be based upon knowledge of
changed
[[Page 6566]]
conditions, or upon new scientific or technical data.
The modifications are made pursuant to section 201 of the Flood
Disaster Protection Act of 1973, 42 U.S.C. 4105, and are in accordance
with the National Flood Insurance Act of 1968, 42 U.S.C. 4001 et seq.,
and with 44 CFR part 65.
For rating purposes, the currently effective community number is
shown and must be used for all new policies and renewals.
The modified base flood elevations are the basis for the floodplain
management measures that the community is required to either adopt or
to show evidence of being already in effect in order to qualify or to
remain qualified for participation in the National Flood Insurance
Program.
These modified elevations, together with the floodplain management
criteria required by 44 CFR 60.3, are the minimum that are required.
They should not be construed to mean that the community must change any
existing ordinances that are more stringent in their floodplain
management requirements. The community may at any time enact stricter
requirements of its own, or pursuant to policies established by other
Federal, state or regional entities.
The changes in base flood elevations are in accordance with 44 CFR
65.4.
National Environmental Policy Act
This rule is categorically excluded from the requirements of 44 CFR
Part 10, Environmental Consideration. No environmental impact
assessment has been prepared.
Regulatory Flexibility Act
The Associate Director, Mitigation Directorate, certifies that this
rule is exempt from the requirements of the Regulatory Flexibility Act
because modified base flood elevations are required by the Flood
Disaster Protection Act of 1973, 42 U.S.C. 4105, and are required to
maintain community eligibility in the National Flood Insurance Program.
No regulatory flexibility analysis has been prepared.
Regulatory Classification
This interim rule is not a significant regulatory action under the
criteria of section 3(f) of Executive Order 12866 of September 30,
1993, Regulatory Planning and Review, 58 FR 51735.
Executive Order 12612, Federalism
This rule involves no policies that have federalism implications
under Executive Order 12612, Federalism, dated October 26, 1987.
Executive Order 12778, Civil Justice Reform
This rule meets the applicable standards of section 2(b)(2) of
Executive Order 12778.
List of Subjects in 44 CFR Part 65
Flood insurance, Floodplains, Reporting and recordkeeping
requirements.
Accordingly, 44 CFR part 65 is amended to read as follows:
PART 65--[AMENDED]
1. The authority citation for part 65 continues to read as follows:
Authority: 42 U.S.C. 4001 et seq.; Reorganization Plan No. 3 of
1978, 3 CFR, 1978 Comp., p. 329; E.O. 12127, 44 FR 19367, 3 CFR,
1979 Comp., p. 376.
Sec. 65.4 [Amended]
2. The tables published under the authority of Sec. 65.4 are
amended as follows:
--------------------------------------------------------------------------------------------------------------------------------------------------------
Chief executive
State and county Location Dates and name of newspaper officer of Effective date of Community
where notice was published community modification No.
--------------------------------------------------------------------------------------------------------------------------------------------------------
Connecticut: Fairfield...... City of Stamford............ Oct. 13, 1995, Oct. 20, 1995, The Honorable Oct. 2, 1995................ 090015 C
The Advocate. Stanley
Esposito,
Mayor of the
City of
Stamford,
Stamford
Government
Center, 888
Washington
Boulevard,
Stanford,
Connecticut
06904-2152.
Illinois: Will.............. Village of New Lenox........ Oct. 11, 1995, Oct. 18, 1995, Mr. John Apr. 3, 1996................ 170706 E.
Herald-News. Nowakowski,
President of
the Village of
New Lenox, 701
West Haven
Avenue, New
Lenox,
Illinois 60451-
2137.
Indiana: Johnson............ Unincorporated Areas........ Oct. 18, 1995, Oct. 25, 1995, Mr. Joseph Jan. 23, 1996............... 180111 C
Daily Journal. Dettart,
Chairman of
the Johnson
County Board
of
Commissioners,
86 West Court
Street,
Courthouse
Annex,
Franklin,
Indiana 46131.
New Jersey: Bergen.......... Borough of Rockleigh........ Oct. 18, 1995, Oct. 25, 1995, The Honorable Oct. 13, 1995............... 340071 F
The Record. Roberta Adams,
Mayor of the
Borough of
Rockleigh, 26
Rockleigh
Road,
Rockleigh, New
Jersey 07647.
Wisconsin: Juneau........... Unincorporated Areas........ June 1, 1995, June 8, 1995, Mr. James May 25, 1995................ 550580 C
Juneau County Star Times. Barrett,
President of
the Juneau
County Board,
220 State
Street,
Juneau,
Wisconsin
53948.
--------------------------------------------------------------------------------------------------------------------------------------------------------
[[Page 6567]]
(Catalog of Federal Domestic Assistance No. 83.100, ``Flood
Insurance.'')
Dated: February 9, 1996.
Richard W. Krimm,
Acting Associate Director for Mitigation.
[FR Doc. 96-3874 Filed 2-21-96; 8:45 am]
BILLING CODE 6718-04-P
Complete official Federal Register PDF
FR Doc. 96-3858 Acrylate Polymers/copolymers; Exemptions From The Requirement of a Tolerance
[Federal Register Volume 61, Number 35 (Wednesday, February 21, 1996)]
[Rules and Regulations]
[Pages 6550-6551]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-3858]
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 180
[OPP-300411; FRL-4995-9]
RIN 2070-AC78
Acrylate Polymers/copolymers; Exemptions From The Requirement of
a Tolerance
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final Rule.
-----------------------------------------------------------------------
SUMMARY: This document establishes a generic exemption from the
requirement of a tolerance for acrylate polymers and copolymers when
used as inert ingredient in pesticide formulations applied on raw
agricultural commodities. This tolerance exemption covers the acrylate
polymers/copolymers which are intrinsically safe and already listed in
the TSCA inventory or will meet the polymer tolerance exemption from
requirements of premanufacturing notification. Polymers that are
exempted can be used as dispensers, resins, fibers, and beads, as long
as the fibers, beads and resins particle sizes are greater than 10
microns and insoluble in water. Polymers with high molecular weights
(3,000 to 100,000 daltons) are generally not readily absorbed through
the intact skin or intact gastrointestinal (GI) tract. Polymers with
particle size greater than 10 microns are generally not readily
absorbed by respiration. Chemicals not absorbed through the skin, GI
tract, and respiratory system are generally incapable of eliciting a
toxic response. This exemption pertains to the acrylate polymers/
copolymers used as inert ingredient for sprayable and dispenser
pesticide formulations that are used on food crops. Any acrylate
polymers/copolymers used for encapsulating material must be cleared as
an inert ingredient when used in pesticide formulations that are
applied on food crops.
EFFECTIVE DATE: This regulation becomes effective February 21, 1996.
ADDRESSES: Written objections and hearing requests, identified by the
document control number, [PP OPP-300411], may be submitted to: Hearing
Clerk (1900), Environmental Protection Agency, Rm. M3708, 401 M St.,
SW., Washington, DC 20460. A copy of any objections and hearing
requests filed with the Hearing Clerk should be identified by the
document control number and submitted to: Public Response and Program
Resources Branch, Field Operations Division (7506C), Office of
Pesticide Programs, Environmental Protection Agency, 401 M St., SW.,
Washington , DC 20460. In person, bring copy of objections and hearing
requests to Rm. 1132, CM #2, 1921 Jefferson Davis Hwy., Arlington, VA
22202. Fees accompanying objections shall be labeled ``Tolerance
Petition Fees'' and forwarded to: EPA Headquarters Accounting
Operations Branch, OPP (Tolerance Fees), P.O. Box 360277M, Pittsburgh,
PA 15251. An electronic copy of objections and hearing requests filed
with the Hearing Clerk may be submitted to OPP by sending electronic
mail (e-mail) to:[email protected].
Copies of electronic objections and hearing requests must be
submitted as an ASCII file avoiding the use of special characters and
any form of encryption. Copies of electronic objections and hearing
requests will also be accepted on disks in WordPerfect 5.1 file format
or ASCII file format. All copies of electronic objections and hearing
requests must be identified by the docket number [OPP-300411]. No
Confidential Business Information (CBI) should be submitted through e-
mail. Copies of electronic objections and hearing requests on this rule
may be filed online at many Federal Depository Libraries. Additional
information on electronic submissions can be found below in this
document.
FOR FURTHER INFORMATION CONTACT: By mail: Freshteh Toghrol,
Biopesticides and Pollution Prevention Division (7501W), Office of
Pesticide Programs, U.S. Environmental Protection Agency, 401 M St.,
SW., Washington, DC 20460. Office location and telephone number: 5th
Floor, Crystal Station 1, 2800 Crystal Drive, Arlington, VA 22202;
(703) 308-7014, e- mail:[email protected]
SUPPLEMENTARY INFORMATION: In the November 15, 1995 Federal Register
(PF-631; FRL-4971-5) EPA issued a notice of filing PP 5E4524 at the
request of Russel Cook Associates, REDA Bldg., Suit 217, 401 S.E.
Dewey, Bartlesville, OK 74005, on behalf of Biosys, by establishing an
generic exemption from the requirement of a food tolerance for acrylate
polymers and copolymers which fit the Toxic Substances Control Act
(TSCA) definition of polymers which are intrinsically safe. This
tolerance exemption covers the acrylate polymers/copolymers that are
already listed in the TSCA inventory or will meet the polymer tolerance
exemption under 40 CFR 723.250 as amended on March 29, 1995.
I. Background
Inert ingredients are substances, other than the active ingredient,
which are intentionally included in a pesticide product as defined in
40 CFR 153.125, and include, but are not limited to, the following
types of ingredients: solvents such as alcohols and hydrocarbons;
surfactants such as polyoxyethylene polymers, copolymers, and fatty
acids; carriers such as clay and diatomaceous earth; thickeners such as
carrageenan and modified cellulose; wetting, spreading, and dispersing
agents; propellants in aerosol dispensers; microencapsulating agents;
and emulsifiers. The term ``inert'' does not imply lack of toxicity;
the ingredient may or may not be chemically active.
For the purposes of this exemption, acrylate polymers/copolymers
used as inert ingredients in an end-use formulations must meet the
definition for a polymer as given in 40 CFR 723.250 (b), are not
automatically excluded by 40 CFR 723.250 (d), and meet the tolerance
exemption criteria 40 CFR 723.250 (e)(1), 40 CFR 723.250 (e)(2) or 40
CFR 723.250(e)(3). Therefore, acrylate polymers and copolymers that are
already listed in the TSCA inventory or will meet the polymer tolerance
exemption under 40 CFR 723.250 as amended on March 29, 1995 are covered
by this exemption.
The Agency believes that the acrylate polymers/copolymers meeting
the criteria noted above and outlined as follows will present minimal,
if any risk to human health when used as inert ingredients in pesticide
formulations applied to growing raw agricultural commodities.
1. The acrylate polymer/copolymers minimum molecular weight may
range from 3,000 to greater than 100,000 daltons as are established
under 40 CFR 180.1112 and 40 CFR 180.1001(c). Substances with high
molecular weights (greater than 3,000 daltons to 100,000 daltons) are
generally not readily absorbed through intact skin or intact
gastrointestinal (GI) tract, respectively. Chemicals not absorbed
through the skin or GI tract are generally incapable of eliciting a
toxic response.
2. These acrylate polymers/copolymers can be used as dispensers,
fiber, resin, and beads, as long as the fiber, bead and resin sizes are
well over 10 microns and are insoluble in water. Acrylate polymers/
copolymers of high molecular weight with well over 10
[[Page 6551]]
micron particle size are generally not absorbed by inhalation.
3. The acrylate polymers and copolymers that are exempted are not
cationic or are not anticipated to be converted (by degradation or
decomposition) to a cationic state.
4. Acrylate and methacrylate are listed as high-concern reactive
functional groups. Therefore, to meet the exemption criteria
Sec. 723.250 (e)(1)(ii)(C) the minimum permissible combined functional
group equivalent weight is 5,000 daltons, when a number-average
molecular weight (NAVG MW) of a polymer is greater than 1,000 and lower
than 10,000 daltons. Additionally, in this range of molecular weight
(greater than 1,000 and less than 10,000 daltons) the polymer must
contain less than 10 percent oligomer content of molecular weight below
500 daltons and less than 25 percent oligomer content of molecular
weight below 1,000 daltons.
5. The polymers with NAVG MW equal to or greater than 10,000
daltons (Sec. 723.250 (e)(2)), the polymer must contain less than 2
percent oligomer content of molecular weight below 500 daltons and must
not exceed 5 percent oligomer content of molecular weight below 1,000
daltons. Water soluble polymers in this molecular weight range are
excluded from exemption under Sec. 723.250(d), with no restriction
regarding the functional group.
6. For a polymer or polyester to meet the exemption criteria
Sec. 723.250 (e)(3), each feedstock, monomer or reactant in the
chemical identity of the polymers at greater than 2 percent composition
must be on the list. Excluded from this exemption would be
biodegradable polyesters and highly water-absorbing polyester with NAVG
MW greater than 10,000 daltons.
7. The acrylate polymers and copolymers must contain as an integral
part of their composition at least two of the atomic elements carbon,
hydrogen, nitrogen, oxygen, sulfur, or silicon (40 CFR
Sec. 723.250(d)(3)). A previous requirement in the 1984 rule stated
that an eligible polymer contain at least 32 percent carbon. This
requirement was deleted since cases reviewed to date contain less than
32 percent carbon, have either received low concern rating, or have
been excluded for other reasons.
8. Certain other elements are permitted in the acrylate polymers
and copolymers as an integral part of the polymers, except if present
as impurities. The allowed elements (40 CFR Sec. 723.250(d)(3)), in
addition to the atomic elements carbon, hydrogen, nitrogen, oxygen,
sulfur, silicon (C, H, N, O, S, Si) are: fluorine, chlorine, bromine,
and iodine (F, Cl, Br, and I) when covalently bonded to carbon, and
monoatomic counterions such as chlorine, bromide, and iodide (Cl-,Br-,
I-), sodium, magnesium, aluminum, potassium, and calcium (Na+, Mg+2,
Al+3, K+, and Ca+2). Less than 0.2 percent weight total (in any
combination) of the atomic elements lithium, boron, phosphorus,
titanium, manganese, iron, nickel, copper, zinc, tin, and zirconium
(Li, B, P, Ti, Mn, Fe, Ni, Cu, Zn, Sn, and Zr) are permitted. No other
elements are permitted except as impurities.
9. The acrylate polymers and copolymers are not biopolymers, they
are synthetic equivalents of a biopolymer, or derivatives or
modifications of a biopolymer that is substantially intact. These
polymers do not contain reactive functional groups that are anticipated
to be converted to a cationic state.
10. The acrylate polymers and copolymers are not designated or
reasonably anticipated to be substantially degraded, decomposed, or
depolymerized. Based upon the above information and review of its use,
EPA has found that when used in accordance with good agricultural
practice, these inert ingredients are useful and a tolerance is not
necessary to protect public health. Therefore, EPA proposes that the
exemptions from the requirement of tolerance be established for
acrylate polymers/copolymers used as inert ingredient for pesticide
formulations.
II. Filing of Objections
Any person adversely affected by this regulation may, within 30
days after publication of this document, file written objections and/or
request a hearing with the Hearing Clerk and a copy submitted to the
OPP docket for this rulemaking at the addresses given above.
III. Regulatory Assessment Requirement
A. Executive Order 12866
The Office of Management and Budget has exempted this notice from
the requirement of section 3 of Executive Order 12866.
B. Regulatory Flexibility Act
Pursuant to the requirements of the Regulatory Flexibility Act
(Pub. L. 96-354, 94 Stat. 1164, 5 U.S.C. 601-612), the Administrator
has determined that regulations establishing new tolerances or raising
tolerance levels or establishing exemptions from tolerance requirements
do not have a significant economic impact on a substantial number of
small entities. A certification statement to this effect was published
in the Federal Register of May 4, 1981 (46 FR 24950).
Dated: February 7, 1996.
Daniel M. Barolo,
Director, Office of Pesticide Programs.
Therefore, 40 CFR part 180 is amended as follows:
PART 180--[AMENDED]
1. The authority citation for part 180 continues to read as
follows:
Authority: 21 U.S.C. 346a and 371
2. By adding new Sec. 180.1162 to subpart D to read as follows:
Sec. 180.1162 Acrylate Polymers and Copolymers; exemption from the
requirement of a tolerance.
(a) Acrylate polymers and copolymers are exempt from the
requirement of a tolerance when used as inert ingredients in pesticidal
formulations applied to growing, raw agricultural commodities. This
tolerance exemption covers the acrylate polymers/copolymers that are
intrinsically safe and already listed in TSCA inventory or will meet
the polymer tolerance exemption from requirements of premanufacturing
notification under 40 CFR 723.250. Polymers exempted can be used as
dispensers, resins, fibers, and beads, as long as the fibers, beads and
resins particle sizes are greater than 10 microns and insoluble in
water. This exemption pertains to the acrylate polymers/copolymers used
as inert ingredients for sprayable and dispenser pesticide formulations
that are applied on food crops. Any acrylate polymers/copolymers used
for encapsulating material must be cleared as an inert ingredient when
used in pesticide formulation applied on food crops.
(b) For the purposes of this exemption, acrylate polymers/
copolymers used as inert ingredients in an end-use formulation must
meet the definition for a polymer as given in 40 CFR 723.250(b), are
not automatically excluded by 40 723.250(d), and meet the tolerance
exemption criteria in 40 CFR 723.250(e)(1), 40 CFR 723.250 (e)(2) or 40
CFR 723.250(e)(3). Therefore, acrylate polymers and copolymers that are
already listed in the TSCA inventory or will meet the polymer tolerance
exemption under 40 CFR 723.250 as amended on March 29, 1995 are covered
by this exemption.
[FR Doc. 96-3858 Filed 2-20-96; 8:45]
BILLING CODE 6560-50-F
Complete official Federal Register PDF
FR Doc. 96-3851 Changes in Flood Elevation Determinations
[Federal Register Volume 61, Number 35 (Wednesday, February 21, 1996)]
[Rules and Regulations]
[Pages 6561-6564]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-3851]
-----------------------------------------------------------------------
FEDERAL EMERGENCY MANAGEMENT AGENCY
44 CFR Part 65
[Docket No. FEMA-7167]
Changes in Flood Elevation Determinations
AGENCY: Federal Emergency Management Agency (FEMA).
ACTION: Interim rule.
-----------------------------------------------------------------------
SUMMARY: This interim rule lists communities where modification of the
base (1% annual chance) flood elevations is appropriate because of new
scientific or technical data. New flood insurance premium rates will be
calculated from the modified base flood elevations for new buildings
and their contents.
DATES: These modified base flood elevations are currently in effect on
the dates listed in the table below and revise the Flood Insurance Rate
Map(s) in effect prior to this determination for the listed
communities.
From the date of the second publication of these changes in a
newspaper of local circulation, any person has ninety (90) days in
which to request through the community that the Associate Director for
Mitigation reconsider the changes. The modified elevations may be
changed during the 90-day period.
ADDRESSES: The modified base flood elevations for each community are
available for inspection at the office of the Chief Executive Officer
of each community. The respective addresses are listed in the table
below.
FOR FURTHER INFORMATION CONTACT: Michael K. Buckley, P.E., Chief,
Hazard Identification Branch, Mitigation Directorate, 500 C Street,
SW., Washington, DC 20472, (202) 646-2756.
SUPPLEMENTARY INFORMATION: The modified base flood elevations are not
listed for each community in this interim rule. However, the address of
the Chief Executive Officer of the community where the modified base
flood elevation determinations are available for inspection is
provided.
Any request for reconsideration must be based on knowledge of
changed conditions or new scientific or technical data.
The modifications are made pursuant to Section 201 of the Flood
Disaster Protection Act of 1973, 42 U.S.C. 4105, and are in accordance
with the National Flood Insurance Act of 1968, 42 U.S.C. 4001 et seq.,
and with 44 CFR Part 65.
For rating purposes, the currently effective community number is
shown and must be used for all new policies and renewals.
The modified base flood elevations are the basis for the floodplain
management measures that the community is required to either adopt or
to show evidence of being already in effect in order to qualify or to
remain qualified for participation in the National Flood Insurance
Program (NFIP).
These modified elevations, together with the floodplain management
criteria required by 44 CFR 60.3, are the minimum that are required.
They
[[Page 6562]]
should not be construed to mean that the community must change any
existing ordinances that are more stringent in their floodplain
management requirements. The community may at any time enact stricter
requirements of its own, or pursuant to policies established by other
Federal, State, or regional entities.
The changes in base flood elevations are in accordance with 44 CFR
65.4.
National Environmental Policy Act
This rule is categorically excluded from the requirements of 44 CFR
Part 10, Environmental Consideration. No environmental impact
assessment has been prepared.
Regulatory Flexibility Act
The Associate Director for Mitigation certifies that this rule is
exempt from the requirements of the Regulatory Flexibility Act because
modified base flood elevations are required by the Flood Disaster
Protection Act of 1973, 42 U.S.C. 4105, and are required to maintain
community eligibility in the NFIP. No regulatory flexibility analysis
has been prepared.
Regulatory Classification
This interim rule is not a significant regulatory action under the
criteria of Section 3(f) of Executive Order 12866 of September 30,
1993, Regulatory Planning and Review, 58 FR 51735.
Executive Order 12612, Federalism
This rule involves no policies that have federalism implications
under Executive Order 12612, Federalism, dated October 26, 1987.
Executive Order 12778, Civil Justice Reform
This rule meets the applicable standards of Section 2(b)(2) of
Executive Order 12778.
List of Subjects in 44 CFR Part 65
Flood insurance, Floodplains, Reporting and recordkeeping
requirements.
Accordingly, 44 CFR Part 65 is amended to read as follows:
PART 65--[AMENDED]
1. The authority citation for Part 65 continues to read as follows:
Authority: 42 U.S.C. 4001 et seq.; Reorganization Plan No. 3 of
1978, 3 CFR, 1978 Comp., p. 329; E.O. 12127, 44 FR 19367, 3 CFR,
1979 Comp., p. 376.
Sec. 65.4 [Amended]
2. The tables published under the authority of Sec. 65.4 are
amended as follows:
--------------------------------------------------------------------------------------------------------------------------------------------------------
Chief executive
State and county Location Dates and name of newspaper officer of Effective date of Community
where notice was published community modification No.
--------------------------------------------------------------------------------------------------------------------------------------------------------
California: Santa Barbara... City of Santa Barbara....... Nov. 2, 1995, Nov. 9, 1995, The Honorable Oct. 11, 1995............... 060335
Santa Barbara News Press. Harriet
Miller, Mayor,
City of Santa
Barbara, City
Hall, P.O. Box
1990, Santa
Barbara,
California
93102-1990.
Colorado:
Boulder................. City of Boulder............. Nov. 23, 1995, Nov. 30, 1995, The Honorable Nov. 1, 1995................ 080024
Daily Camera. Leslie Durgin,
Mayor, City of
Boulder, P.O.
Box 791,
Boulder,
Colorado 80306.
Boulder................. Unincorporated Areas........ Nov. 23, 1995, Nov. 30, 1995, The Honorable Nov. 1, 1995................ 080023
Daily Camera. Ronald K.
Stewart,
Chairperson,
Boulder County
Board of
Supervisors,
P.O. Box 471,
Boulder,
Colorado 80306.
El Paso................. City of Colorado Springs.... Nov. 21, 1995, Nov. 28, 1995, The Honorable Oct. 25, 1995............... 080060
Gazette Telegraph. Robert M.
Isaac, Mayor,
City of
Colorado
Springs, P.O.
Box 1575,
Colorado
Springs,
Colorado 80901.
El Paso................. Unincorporated Areas........ Nov. 21, 1995, Nov. 28, 1995, The Honorable Oct. 25, 1995............... 080059
Gazette Telegraph. Loren
Whittemore,
Chairperson,
El Paso County
Board of
Commissioners,
27 East
Vermijo, Third
Floor,
Colorado
Springs,
Colorado 80903-
2225.
Idaho: Bannock.............. City of Pocatello........... Nov. 23, 1995, Nov. 30, 1995, The Honorable Oct. 12, 1995............... 160012
Idaho State Journal. Peter
Angstadt,
Mayor, City of
Pocatello,
P.O. Box 4169,
Pocatello,
Idaho 83205.
[[Page 6563]]
Missouri: Greene........... Unincorporated Areas........ Nov. 3, 1995, Nov. 10, 1995, The Honorable Oct. 18, 1995............... 290782
News-Leader. David L.
Coonrod,
Presiding
Commissioner,
Greene County
Commission,
940 Boonville
Avenue,
Springfield,
Missouri 65802.
Oklahoma:
Cleveland............... City of Norman.............. Oct. 24, 1995, Oct. 31, 1995, The Honorable Oct. 18, 1995............... 400046
Norman Transcript. William
Nations,
Mayor, City of
Norman, 201
West Gray,
Norman,
Oklahoma 73070.
Oklahoma................ City of Oklahoma City....... Nov. 22, 1995, Nov. 29, 1995, The Honorable Nov. 2, 1995................ 405378
Journal Record. Ronald J.
Norick, Mayor,
City of
Oklahoma City,
200 North
Walker Avenue,
Oklahoma City,
Oklahoma 73102.
Oklahoma................ City of Oklahoma City....... Nov. 23, 1995, Nov. 30, 1995, The Honorable Oct. 19, 1995............... 405378
Journal Record. Ronald J.
Norick, Mayor,
City of
Oklahoma City,
200 North
Walker Avenue,
Oklahoma City,
Oklahoma 73102.
Texas:
Tarrant................. City of Bedford............. Nov. 2, 1995, Nov. 9, 1995, Fort The Honorable Oct. 13, 1995............... 480585
Worth Star Telegram. Rick D. Hurt,
Mayor, City of
Bedford, P.O.
Box 157,
Bedford, Texas
76095-0157.
Dallas.................. City of Dallas.............. Nov. 23, 1995, Nov. 30, 1995, The Honorable Nov. 6, 1995................ 480171
Dallas Morning News. Ron Kirk,
Mayor, City of
Dallas, 1500
Marilla
Street, Room
5E North,
Dallas, Texas
75201.
Dallas.................. Unincorporated Areas........ Nov. 23, 1995, Nov. 30, 1995, The Honorable Nov. 6, 1995................ 480165
Daily Commercial Record. Lee F.
Jackson,
Dallas County
Judge, 411 Elm
Street,
Dallas, Texas
75202.
El Paso................. City of El Paso............. Nov. 7, 1995, Nov. 14, 1995, El The Honorable Oct. 18, 1995............... 480214
Paso Times. William S.
Tilney, Mayor,
City of El
Paso, Two
Civic Center
Plaza, El
Paso, Texas
79901.
Williamson.............. City of Georgetown.......... Nov. 22, 1995, Nov. 29, 1995, The Honorable Nov. 8, 1995................ 480668
Williamson County Sun. Leo Wood,
Mayor, City of
Georgetown,
P.O. Box 409,
Georgetown,
Texas 78627.
Dallas, Tarrant, and City of Grand Prairie....... Nov. 23, 1995, Nov. 30, 1995, The Honorable Nov. 6, 1995................ 485472
Ellis. The Mid-Cities News. Charles
England,
Mayor, City of
Grand Prairie,
317 College
Street, Grand
Prairie, Texas
75053.
[[Page 6564]]
Tarrant................. Town of Pantego............. Nov. 22, 1995, Nov. 29, 1995, The Honorable Oct. 31, 1995............... 481116
Fort Worth Commercial Reporter. Susan
Abercrombie,
Mayor, Town of
Pantego, 1614
South Bowen
Road, Pantego,
Texas 76013.
Williamson.............. Unincorporated Areas........ Nov. 22, 1995, Nov. 29, 1995, The Honorable Nov. 8, 1995................ 481079
Williamson County Sun. John Doerfler,
Williamson
County Judge,
County
Courthouse,
710 Main
Street,
Georgetown,
Texas 78626.
--------------------------------------------------------------------------------------------------------------------------------------------------------
(Catalog of Federal Domestic Assistance No. 83.100, ``Flood
Insurance.'')
Dated: February 9, 1996.
Richard W. Krimm,
Acting Associate Director for Mitigation.
[FR Doc. 96-3851 Filed 2-20-96; 8:45 am]
BILLING CODE 6718-04-P
Complete official Federal Register PDF
FR Doc. 96-3850 Final Flood Elevation Determinations
[Federal Register Volume 61, Number 35 (Wednesday, February 21, 1996)]
[Rules and Regulations]
[Pages 6572-6575]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-3850]
-----------------------------------------------------------------------
FEDERAL EMERGENCY MANAGEMENT AGENCY
44 CFR Part 67
Final Flood Elevation Determinations
AGENCY: Federal Emergency Management Agency (FEMA).
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: Base (1% annual chance) flood elevations and modified base
flood elevations are made final for the communities listed below. The
base flood elevations and modified base flood elevations are the basis
for the floodplain management measures that each community is required
either to adopt or to show evidence of being already in effect in order
to qualify or remain qualified for participation in the National Flood
Insurance Program (NFIP).
EFFECTIVE DATE: The date of issuance of the Flood Insurance Rate Map
(FIRM) showing base flood elevations and modified base flood elevations
for each community. This date may be obtained by contacting the office
where the maps are available for inspection as indicated on the table
below.
ADDRESSES: The final base flood elevations for each community are
available for inspection at the office of the Chief Executive Officer
of each community. The respective addresses are listed in the table
below.
FOR FURTHER INFORMATION CONTACT: Michael K. Buckley, P.E., Chief,
Hazard Identification Branch, Mitigation Directorate, 500 C Street,
SW., Washington, DC 20472, (202) 646-2756.
SUPPLEMENTARY INFORMATION: The Federal Emergency Management Agency
(FEMA or Agency) makes final determinations listed below of base flood
elevations and modified base flood elevations for each community
listed. The proposed base flood elevations and proposed modified base
flood elevations were published in newspapers of local circulation and
an opportunity for the community or individuals to appeal the proposed
determinations to or through the community was provided for a period of
ninety (90) days. The proposed base flood elevations and proposed
modified base flood elevations were also published in the Federal
Register.
This final rule is issued in accordance with section 110 of the
Flood Disaster Protection Act of 1973, 42 U.S.C. 4104, and 44 CFR part
67.
The Agency has developed criteria for floodplain management in
floodprone areas in accordance with 44 CFR part 60.
Interested lessees and owners of real property are encouraged to
review the proof Flood Insurance Study and Flood Insurance Rate Map
available at the address cited below for each community.
The base flood elevations and modified base flood elevations are
made final in the communities listed below. Elevations at selected
locations in each community are shown.
National Environmental Policy Act.
This rule is categorically excluded from the requirements of 44 CFR
Part 10, Environmental Consideration. No environmental impact
assessment has been prepared.
Regulatory Flexibility Act
The Associate Director, Mitigation Directorate, certifies that this
rule is exempt from the requirements of the Regulatory Flexibility Act
because final or modified base flood elevations are required by the
Flood Disaster Protection Act of 1973, 42 U.S.C. 4104, and are required
to establish and maintain community eligibility in the National Flood
Insurance Program. No regulatory flexibility analysis has been
prepared.
Regulatory Classification
This final rule is not a significant regulatory action under the
criteria of section 3(f) of Executive Order 12866 of September 30,
1993, Regulatory Planning and Review, 58 FR 51735.
Executive Order 12612, Federalism
This rule involves no policies that have federalism implications
under Executive Order 12612, Federalism, dated October 26, 1987.
Executive Order 12778, Civil Justice Reform
This rule meets the applicable standards of section 2(b)(2) of
Executive Order 12778.
List of Subjects in 44 CFR Part 67
Administrative practice and procedure, Flood insurance, Reporting
and recordkeeping requirements.
Accordingly, 44 CFR part 67 is amended as follows:
PART 67--[AMENDED]
1. The authority citation for part 67 continues to read as follows:
Authority: 42 U.S.C. 4001 et seq.; Reorganization Plan No. 3 of
1978, 3 CFR, 1978 Comp., p. 329; E.O. 12127, 44 FR 19367, 3 CFR,
1979 Comp., p. 376.
Sec. 67.11 [Amended]
2. The tables published under the authority of Sec. 67.11 are
amended as follows:
------------------------------------------------------------------------
#Depth in
feet above
ground.
Source of flooding and location *Elevation
in feet
(NGVD)
------------------------------------------------------------------------
DELAWARE
-------------------------------------------------------------
Arden (village), New Castle County (FEMA Docket No. 7138)
South Branch Naaman Creek:
Approximately 2,000 feet upstream of CSX Transportation... *188
Approximately 1,100 feet upstream of Marsh Road........... *270
Maps available for inspection at the Village Secretary's
Office, 2005 Harvey Road, Arden, Delaware.
------
Ardentown (village), New Castle County (FEMA Docket No.
7138)
South Branch Naaman Creek:
Approximately 100 feet upstream of CONRAIL................ *135
Approximately 2,000 feet upstream of CONRAIL.............. *189
[[Page 6573]]
Maps available for inspection at the Ardentown Chairman's
Office, 2308 Brae Road, Ardentown, Delaware.
------
Newark (city), New Castle County (FEMA Docket No. 7138)
West Branch Christina River:
At Swim Club Access Road.................................. *88
At State boundary......................................... *108
Christina River:
Approximately 570 feet upstream of Nottingham Road (Route
273)..................................................... *134
At downstream side of Wedgewood Road...................... *159
Persimmon Run:
At its confluence with West Branch Christina River........ *97
Approximately 100 feet upstream of Sandy Brae Road........ *109
Silver Brook:
At the confluence with Christina River.................... *70
Approximately 420 feet upstream of Park Lane.............. *78
Yorkshire Ditch:
Approximately 260 feet upstream of confluence with the
Christina River.......................................... *65
Approximately 710 feet upstream of Bellview Road.......... *70
Tributary to West Branch Christina River:
At the confluence with West Branch Christina River........ *108
Approximately 750 feet upstream of the confluence with
West Branch Christina River.............................. *109
Maps available for inspection at the City Hall, 220 Elkton
Road, Newark, Delaware.
------
New Castle County (unincorporated areas) (FEMA Docket No.
7138)
Shellpot Creek:
Approximately 1,275 feet downstream of Governor Printz
Boulevard................................................ *17
At Kennedy Road........................................... *376
Naaman Creek:
Approximately 350 feet upstream of confluence with
Delaware River........................................... *11
Approximately 0.35 mile upstream of State Route 92........ *44
South Branch Naaman Creek:
At confluence with Naaman Creek........................... *35
At upstream corporate limit............................... *359
Dragon Creek:
Upstream side of 5th Street............................... *10
Approximately 1.1 miles upstream of 5th Street............ *10
Persimmon Run:
At its confluence with West Branch of Christina River..... *97
Approximately 0.6 mile upstream of Sandy Brae Road........ *115
Yorkshire Ditch:
At the confluence with the Christina River................ *64
Approximately 260 feet upstream of its confluence with the
Christina River.......................................... *65
Tributary to West Branch Christina River:
Approximately 750 feet upstream of the confluence with
West Branch Christina River.............................. *109
Approximately 1,260 feet upstream of the confluence with
West Branch Christina River.............................. *110
West Branch Christina River:
Approximately 1,000 feet upstream of Swim Club Access Road *91
Approximately 740 feet upstream of Elkton Road............ *108
East Branch Christina River:
At the confluence with the Christina River................ *157
Approximately 0.9 mile upstream of Wedgewood Road......... *229
Christina River:
Approximately 570 feet upstream of Nottingham Road (State
Route 273)............................................... *134
Approximately 350 feet upstream of Wedgewood Road......... *162
Maps available for inspection at the Engineering Building,
2701 Capital Trail, Newark, Delaware.
------
Wilmington (city), New Castle County (FEMA Docket No. 7138)
Shellpot Creek:
Approximately 1,275 feet downstream of Governor Printz
Boulevard................................................ *17
Approximately 500 feet downstream of Governor Printz
Boulevard................................................ *17
Maps available for inspection at the Louis L. Redding City-
County Building, City Clerk's Office, 800 French Street,
Wilmington, Delaware.
-------------------------------------------------------------
MAINE
-------------------------------------------------------------
Norridgewock (town), Somerset County (FEMA Docket No. 7124)
Kennebec River:
Approximately 260 feet downstream of confluence of Ledge
Brook.................................................... *174
Approximately .4 mile upstream of confluence of Sandy
River.................................................... *193
Sandy River:
At confluence with Kennebec River......................... *193
At upstream corporate limits.............................. *202
Mill Stream:
At confluence with Kennebec River......................... *177
Downstream side of West Branch Station Dam................ *177
Maps available for inspection at the Town Office Vault,
Perkins Street, Norridgewock, Maine.
-------------------------------------------------------------
MICHIGAN
-------------------------------------------------------------
Allen Park (city), Wayne County (FEMA Docket No. 7155)
North Branch Ecorse Creek:
Approximately 0.36 mile downstream of Allen Road.......... *590
Approximately 250 feet upstream of Euclid Avenue.......... *598
Maps available for inspection at the Allen Park City Hall,
16850 Southfield Road, Allen Park, Michigan.
------
Dearborn (city), Wayne County (FEMA Docket No. 7083)
River Rouge:
Approximately 450 feet downstream of Evergreen Road (North
Bound)................................................... *587
Approximately 100 feet upstream of Ford Road (West Bound). *597
Lower River Rouge:
At the confluence with River Rouge........................ *589
At the Gulley Road........................................ *603
North Branch Ecorse Creek:
Approximately 520 feet downstream of Jackson Street....... *598
Approximately 1,400 feet upstream of Pardee Road.......... *612
Maps available for inspection at the Dearborn City Hall
West, Office of City Engineer, 6045 Fenton Street,
Dearborn, Michigan.
------
Dearborn Heights (city), Wayne County (FEMA Docket No. 7155)
North Branch Ecorse Creek:
At Southfield Freeway..................................... *598
Approximately 600 feet upstream of Madison Street......... *612
[[Page 6574]]
Maps available for inspection at the Dearborn Heights City
Hall, 6045 Fenton Street, Dearborn Heights, Michigan.
------
Taylor (city), Wayne County (FEMA Docket No. 7155)
North Branch Ecorse Creek:
At Pelham Road............................................ *602
Approximately 200 feet downstream of Pardee Road.......... *609
Maps available for inspection at the Taylor City Hall, 23555
Goddard Road, Taylor, Michigan.
-------------------------------------------------------------
MINNESOTA
-------------------------------------------------------------
North Branch (city), Chisago County (FEMA Docket No. 7164)
North Branch Sunrise River:
Approximately 1,575 feet upstream of State Route 95....... *870
Approximately 0.9 mile upstream of 8th Avenue............. *877
Maps available for inspection at the North Branch Planning
Office, 1356 Main Street, North Branch, Minnesota.
-------------------------------------------------------------
NEW YORK
-------------------------------------------------------------
Clarence (town), Erie County (FEMA Docket No. 7048)
Ransom Creek:
Downstream corporate limits at Transit Road............... *585
Downstream of Conner Road................................. *603
Tonawanda Creek:
Downstream corporate limits at State Route 78............. *584
Upstream corporate limits................................. *594
Black Creek:
Downstream corporate limits (State Route 78).............. *585
Approximately 1.7 miles upstream of Salt Road............. *591
Gott Creek:
At downstream corporate limits at Transit Road............ *592
Approximately 100 feet upstream of Roll Road.............. *608
Maps available for inspection at the Clarence Town Building
Department, 6185 Goodrich Road, Clarence Center, New York.
-------------------------------------------------------------
NORTH CAROLINA
-------------------------------------------------------------
Asheville (city), Buncombe County (FEMA Docket No. 7149)
Bull Creek:
At confluence with Swannanoa River........................ *2108
At Bull Creek Road........................................ *2289
Beaverdam Creek:
Approximately 500 feet downstream of Elkwood Avenue....... *2056
At Governors Drive........................................ *2259
Sweeten Creek:
At confluence with Swannanoa River........................ *1998
Approximately 900 feet upstream of Rock Hill Road......... *2192
Tributary No. 3 to Sweeten Creek:
At confluence with Sweeten Creek.......................... *2018
At Taft Street............................................ *2136
Ross Creek:
At confluence with Swannanoa River........................ *2002
At Howland Road........................................... *2345
Haw Creek:
Approximately 0.1 mile upstream of confluence with
Swannanoa River.......................................... *2008
At Mann Drive............................................. *2256
Smith Mill Creek:
Approximately 685 feet upstream of Southern Railway....... *1981
Approximately 0.2 mile downstream of Johnston School Road. *2162
Swannanoa River:
Approximately 1,425 feet downstream of U.S. 25 Viaduct.... *1992
At U.S. Highway 70........................................ *2060
Tributary No. 1 to Sweeten Creek:
At confluence with Sweeten Creek.......................... *2082
Approximately 105 feet upstream of the confluence with
Sweeten Creek............................................ *2082
Hominy Creek:
At 0.29 mile upstream of Sand Hill Road................... *2056
Approximately 0.75 mile upstream of Sand Hill Road........ *2058
Moore Creek:
Approximately 53 feet upstream of State Route 1241........ *2061
Approximately 550 feet upstream of Interstate 40.......... *2129
Maps available for inspection at the Planning Department, 70
Court Plaza, Asheville, North Carolina.
------
Buncombe County (unincorporated areas) (FEMA Docket No.
7149)
Tributary to Beaverdam Creek:
At Hillcrest Road......................................... *2098
Approximately 800 feet upstream of Hillcrest Road......... *2107
Hominy Creek:
At Interstate Route 40.................................... *2021
At Luther Road............................................ *2178
Smith Mill Creek:
At Johnston School Road................................... *2165
Approximately 0.44 mile upstream of Johnston School Road.. *2205
Newfound Creek:
Approximately 1.0 mile downstream of State Road 63
(Leicester Highway)...................................... *1968
At Morgan Branch Road (State Route 1220).................. *2155
Moore Creek:
Approximately 0.46 mile (2,428 feet) downstream of
Interstate 40............................................ *2084
At Monte Vista Road (State Route 1224).................... *2202
Swannanoa River:
At U.S. Highway 70........................................ *2060
Approximately 0.8 mile upstream of County Road............ *2519
Bull Creek:
Approximately 150 feet upstream of confluence with
Swannanoa River.......................................... *2108
At Bull Creek Road........................................ *2289
McKinnish Branch:
Upstream side of Cove Road................................ *2158
Approximately 370 feet upstream of Cove Road.............. *2165
Pole Creek:
At confluence with Hominy Creek........................... *2086
Approximately 330 feet downstream of U.S. Routes 19 and 23 *2086
Maps available for inspection at the Buncombe County
Engineer's Office, 30 Valley Street, Asheville, North
Carolina.
------
Woodfin (town), Buncombe County (FEMA Docket No. 7149)
Beaverdam Creek:
At confluence with French Broad River..................... *1941
Just downstream of U.S. Highway 19 and 23................. *2040
Tributary to Beaverdam Creek:
At confluence with Beaverdam Creek........................ *2049
At Hillcrest Road......................................... *2098
Maps available for inspection at the Town Administrator's
Office, 90 Elk Mountain Road, Woodfin, North Carolina.
-------------------------------------------------------------
OHIO
-------------------------------------------------------------
Fairfield County (unincorporated areas) (FEMA Docket No.
7149)
Raccoon Run:
At the upstream face of State Route 664................... *761
[[Page 6575]]
Approximately 400 feet upstream of Zion Road.............. *806
Maps available for inspection at the Regional Planning
Office, Fairfield County Courthouse, 210 East Main Street,
Lancaster, Ohio.
------
Kenton (city), Hardin County (FEMA Docket No. 7149)
Scioto River:
At County Road 175........................................ *959
At a point approximately 0.56 mile upstream of Leighton
Street................................................... *966
Maps available for inspection at the Kenton City Hall, 111
West Franklin Street, Kenton, Ohio.
-------------------------------------------------------------
PENNSYLVANIA
-------------------------------------------------------------
German (township), Fayette County (FEMA Docket No. 7149)
Monongahela River:
At confluence of Antram Run............................... *789
At upstream corporate limits.............................. *798
Maps available for inspection at the German Township
Building, R.D. #1, Box 287, McClellandtown, Pennsylvania.
------------------------------------------------------------------------
(Catalog of Federal Domestic Assistance No. 83.100, ``Flood
Insurance.'')
Dated: February 9, 1996.
Richard W. Krimm,
Acting Associate Director for Mitigation.
[FR Doc. 96-3850 Filed 2-20-96; 8:45 am]
BILLING CODE 6718-04-P
Complete official Federal Register PDF
FR Doc. 96-3849 Changes in Flood Elevation Determinations
[Federal Register Volume 61, Number 35 (Wednesday, February 21, 1996)]
[Rules and Regulations]
[Pages 6560-6561]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-3849]
-----------------------------------------------------------------------
FEDERAL EMERGENCY MANAGEMENT AGENCY
44 CFR Part 65
Changes in Flood Elevation Determinations
AGENCY: Federal Emergency Management Agency, FEMA.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: Modified base (1% annual chance) flood elevations are
finalized for the communities listed below. These modified elevations
will be used to calculate flood insurance premium rates for new
buildings and their contents.
EFFECTIVE DATES: The effective dates for these modified base flood
elevations are indicated on the following table and revise the Flood
Insurance Rate Map(s) (FIRMs) in effect for each listed community prior
to this date.
ADDRESSES: The modified base flood elevations for each community are
available for inspection at the office of the Chief Executive Officer
of each community. The respective addresses are listed in the following
table.
FOR FURTHER INFORMATION CONTACT: Michael K. Buckley, P.E., Chief,
Hazard Identification Branch, Mitigation Directorate, 500 C Street,
SW., Washington, DC 20472, (202) 646-2756.
SUPPLEMENTARY INFORMATION: The Federal Emergency Management Agency
makes the final determinations listed below of modified base flood
elevations for each community listed. These modified elevations have
been published in newspapers of local circulation and ninety (90) days
have elapsed since that publication. The Associate Director has
resolved any appeals resulting from this notification.
The modified base flood elevations are not listed for each
community in this notice. However, this rule includes the address of
the Chief Executive Officer of the community where the modified base
flood elevation determinations are available for inspection.
The modifications are made pursuant to section 206 of the Flood
Disaster Protection Act of 1973, 42 U.S.C. 4105, and are in accordance
with the National Flood Insurance Act of 1968, 42 U.S.C. 4001 et seq.,
and with 44 CFR part 65.
For rating purposes, the currently effective community number is
shown and must be used for all new policies and renewals.
The modified base flood elevations are the basis for the floodplain
management measures that the community is required to either adopt or
to show evidence of being already in effect in order to qualify or to
remain qualified for participation in the National Flood Insurance
Program.
These modified elevations, together with the floodplain management
criteria required by 44 CFR 60.3, are the minimum that are required.
They should not be construed to mean that the community must change any
existing ordinances that are more stringent in their floodplain
management requirements. The community may at any time enact stricter
requirements of its own, or pursuant to policies established by other
Federal, state or regional entities.
These modified elevations are used to meet the floodplain
management requirements of the NFIP and are also used to calculate the
appropriate flood insurance premium rates for new buildings built after
these elevations are made final, and for the contents in these
buildings.
The changes in base flood elevations are in accordance with 44 CFR
65.4.
National Environmental Policy Act
This rule is categorically excluded from the requirements of 44 CFR
Part 10, Environmental Consideration. No environmental impact
assessment has been prepared.
Regulatory Flexibility Act
The Associate Director, Mitigation Directorate, certifies that this
rule is exempt from the requirements of the Regulatory Flexibility Act
because modified base flood elevations are required by the Flood
Disaster Protection Act of 1973, 42 U.S.C. 4105, and are required to
maintain community eligibility in the National Flood Insurance Program.
No regulatory flexibility analysis has been prepared.
Regulatory Classification
This final rule is not a significant regulatory action under the
criteria of section 3(f) of Executive Order 12866 of September 30,
1993, Regulatory Planning and Review, 58 FR 51735.
Executive Order 12612, Federalism
This rule involves no policies that have federalism implications
under Executive Order 12612, Federalism, dated October 26, 1987.
Executive Order 12778, Civil Justice Reform
This rule meets the applicable standards of section 2(b)(2) of
Executive Order 12778.
List of Subjects in 44 CFR Part 65
Flood insurance, Floodplains, Reporting and recordkeeping
requirements.
Accordingly, 44 CFR part 65 is amended to read as follows:
PART 65--[AMENDED]
1. The authority citation for part 65 continues to read as follows:
Authority: 42 U.S.C. 4001 et seq.; Reorganization Plan No. 3 of
1978, 3 CFR, 1978 Comp., p. 329; E.O. 12127, 44 FR 19367, 3 CFR,
1979 Comp., p. 376.
Sec. 65.4 [Amended]
2. The tables published under the authority of Sec. 65.4 are
amended as follows:
[[Page 6561]]
--------------------------------------------------------------------------------------------------------------------------------------------------------
Chief executive
State and county Location Dates and name of newspaper officer of Effective date of Community
where notice was published community modification No.
--------------------------------------------------------------------------------------------------------------------------------------------------------
Connecticut: Tolland (FEMA Town of Somers.............. June 23, 1995, June 30, 1995, Mr. Robert June 16, 1995............... 090112
Docket No. 7150). Journal Enquirer. Percoski First
Selectman of
the Town of
Somers, Town
Hall, P.O. Box
308, Somers,
Connecticut
06071.
Florida: Orange (FEMA Docket Unincorporated Areas........ June 30, 1995, July 6, 1995, The Mr. Ajit May 22, 1995................ 120179
No. 7141). Orlando Sentinel. Lalchandani,
P.E., Acting
Director, 4200
South John
Young Parkway,
Orlando,
Florida 32839-
9205.
Minnesota: Hennepin (FEMA City of Hopkins............. June 28, 1995, July 5, 1995, Mr. Steve Dec. 19, 1995............... 270166
Docket No. 7148). Hopkins Sun Sailor. Mielke,
Manager of the
City of
Hopkins, 1010
1st Street
South,
Hopkins,
Minnesota
55343.
New Hampshire: Grafton (FEMA Town of Littleton........... June 14, 1995, June 21, 1995, Mr. Donald A. June 9, 1995................ 330064
Docket No. 7148). The Courier. Craigie,
Chairman of
the Board of
Selectmen, 1
Union Street,
Littleton, New
Hampshire
03561.
Ohio: Athens (FEMA Docket City of Athens.............. Aug. 9, 1995, Aug. 16, 1995, The The Honorable Feb. 2, 1996................ 390016
No. 7150). Athens Messenger. Sara
Hendricker,
Mayor of the
City of
Athens, 8 East
Washington
Street,
Athens, Ohio
45701.
Tennessee: Sevier (FEMA City of Sevierville......... May 25, 1995, June 1, 1995, The The Honorable May 18, 1995................ 475444
Docket No. 7141). Mountain Press. Bryan Atchley,
Mayor of the
City of
Sevierville,
P.O. Box 5500,
Sevierville,
Tennessee
37864-5500.
--------------------------------------------------------------------------------------------------------------------------------------------------------
(Catalog of Federal Domestic Assistance No. 83.100, ``Flood
Insurance.'')
Dated: February 9, 1996.
Richard W. Krimm,
Acting Associate Director for Mitigation.
[FR Doc. 96-3849 Filed 2-20-96; 8:45 am]
BILLING CODE 6718-04-P
Complete official Federal Register PDF
FR Doc. 96-3848 Final Flood Elevation Determinations
[Federal Register Volume 61, Number 35 (Wednesday, February 21, 1996)]
[Rules and Regulations]
[Pages 6569-6572]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-3848]
-----------------------------------------------------------------------
FEDERAL EMERGENCY MANAGEMENT AGENCY
44 CFR Part 67
Final Flood Elevation Determinations
AGENCY: Federal Emergency Management Agency (FEMA).
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: Base (1% annual chance) flood elevations and modified base
flood elevations are made final for the communities listed below. The
base flood elevations and modified base flood elevations are the basis
for the floodplain management measures that each community is required
either to adopt or to show evidence of being already in effect in order
to qualify or remain qualified for participation in the National Flood
Insurance Program (NFIP).
EFFECTIVE DATES: The date of issuance of the Flood Insurance Rate Map
(FIRM) showing base flood elevations and modified base flood elevations
for each community. This date may be obtained by contacting the office
where the maps are available for inspection as indicated on the table
below.
ADDRESSES: The final base flood elevations for each community are
available for inspection at the office of the Chief Executive Officer
of each community. The respective addresses are listed in the table
below.
FOR FURTHER INFORMATION CONTACT: Michael K. Buckley, P.E., Chief,
Hazard Identification Branch, Mitigation Directorate, 500 C Street,
SW., Washington, DC 20472, (202) 646-2756.
SUPPLEMENTARY INFORMATION: The Federal Emergency Management Agency
(FEMA or Agency) makes final determinations listed below of base flood
elevations and modified base flood elevations for each community
listed. The proposed base flood elevations and proposed modified base
flood elevations were published in newspapers of local circulation and
an opportunity for the community or individuals to appeal the proposed
determinations to or through the community was provided for a period of
ninety (90) days. The proposed base flood elevations and proposed
modified base flood elevations were also published in the Federal
Register.
This final rule is issued in accordance with section 110 of the
Flood Disaster Protection Act of 1973, 42 U.S.C. 4104, and 44 CFR part
67.
The Agency has developed criteria for floodplain management in
floodprone areas in accordance with 44 CFR part 60.
Interested lessees and owners of real property are encouraged to
review the proof Flood Insurance Study and Flood Insurance Rate Map
available at the address cited below for each community.
The base flood elevations and modified base flood elevations are
made final in the communities listed below. Elevations at selected
locations in each community are shown.
National Environmental Policy Act
This rule is categorically excluded from the requirements of 44 CFR
Part 10, Environmental Consideration. No environmental impact
assessment has been prepared.
[[Page 6570]]
Regulatory Flexibility Act
The Associate Director, Mitigation Directorate, certifies that this
rule is exempt from the requirements of the Regulatory Flexibility Act
because final or modified base flood elevations are required by the
Flood Disaster Protection Act of 1973, 42 U.S.C. 4104, and are required
to establish and maintain community eligibility in the National Flood
Insurance Program. No regulatory flexibility analysis has been
prepared.
Regulatory Classification
This final rule is not a significant regulatory action under the
criteria of section 3(f) of Executive Order 12866 of September 30,
1993, Regulatory Planning and Review, 58 FR 51735.
Executive Order 12612, Federalism
This rule involves no policies that have federalism implications
under Executive Order 12612, Federalism, dated October 26, 1987.
Executive Order 12778, Civil Justice Reform
This rule meets the applicable standards of section 2(b)(2) of
Executive Order 12778.
List of Subjects in 44 CFR Part 67
Administrative practice and procedure, Flood insurance, Reporting
and recordkeeping requirements.
Accordingly, 44 CFR part 67 is amended as follows:
PART 67--[AMENDED]
1. The authority citation for part 67 continues to read as follows:
Authority: 42 U.S.C. 4001 et seq.; Reorganization Plan No. 3 of
1978, 3 CFR, 1978 Comp., p. 329; E.O. 12127, 44 FR 19367, 3 CFR,
1979 Comp., p. 376.
Sec. 67.11 [Amended]
2. The tables published under the authority of Sec. 67.11 are
amended as follows:
------------------------------------------------------------------------
# Depth in
feet above
ground. *
Source of flooding and location Elevation
in feet
(NGVD)
------------------------------------------------------------------------
FLORIDA
-------------------------------------------------------------
Pinellas County (unincorporated areas) (FEMA Docket No.
7136)
Alligator Creek Channel A:
Approximately 800 feet downstream of McMullen Booth Road.. *10
Approximately 625 feet downstream of Sunset Point Road.... *54
Alligator Creek Channel B:
Approximately 1,250 feet upstream of CSX Transportation... *24
At 4th Avenue south....................................... *89
Alligator Creek Channel C:
At confluence with Channel A.............................. *38
Approximately 1,400 feet upstream of Sunset Point Road.... *66
Alligator Creek Channel E:
Approximately 250 feet downstream of CSX Transportation... *12
At downstream side of McMullen Booth Road................. *22
Alligator Creek Channel H:
At confluence with Channel A.............................. *26
Approximately 600 feet upstream of Sharkey Road........... *35
Maps available for inspection at the County Technical
Services Building, First Floor, 440 Court Street,
Clearwater, Florida.
-------------------------------------------------------------
ILLINOIS
-------------------------------------------------------------
Kane County (unincorporated areas) (FEMA Docket No. 7149)
Blackberry Creek:
At State Route 30......................................... *661
At downstream side of State Route 38...................... *846
Blackberry Creek Tributary A:
Approximately 2,450 feet downstream of Indian Trail Road.. *674
At East-West Tollway...................................... *679
Blackberry Creek Tributary B:
At confluence with Blackberry Creek....................... *679
Approximately 0.6 mile upstream of Seavey Road............ *698
Blackberry Creek Tributary C:
At confluence with Blackberry Creek....................... *707
Approximately 1.7 miles upstream of Seavey Road........... *723
Blackberry Creek Tributary D:
At confluence with Blackberry Creek....................... *740
At Keslinger Road......................................... *808
Blackberry Creek Tributary E:
At Hankes Road............................................ *680
Approximately 4,400 feet upstream of Winthrop Drive....... *688
Blackberry Creek Tributary F:
At confluence with Blackberry Creek Tributary B........... *698
Approximately 210 feet upstream of Main Street............ *735
Blackberry Creek Tributary G:
Approximately 150 feet downstream of State Route 30....... *657
Approximately 1,650 feet downstream of Jericho Road....... *666
Blackberry Creek Tributary H:
At confluence with Blackberry Creek....................... *666
Approximately 2,400 feet upstream of Burlington Northern
Railway.................................................. *670
Bowes Creek:
At the confluence with Stoney Creek....................... *793
Approximately 200 feet upstream of Dittman Road........... *918
Bowes Creek Tributary:
At the confluence with Bowes Creek........................ *909
Approximately 200 feet upstream of Dittman Road........... *914
Ferson Creek:
At Bolcum Road............................................ *753
Approximately 75 feet upstream of State Route 64 (North
Avenue).................................................. *873
Fitchie Creek:
At the confluence with Otter Creek........................ *782
Approximately 200 feet upstream of Russell Road........... *878
Hampshire Creek:
Approximately 1,225 feet downstream of confluence of
Hampshire Creek Tributary................................ *869
Approximately 1,225 feet upstream of 500 Line Railroad.... *966
Hampshire Creek Tributary:
Approximately 345 feet downstream of Field Bridge......... *873
Approximately 100 feet upstream of Field Bridge........... *873
Hampshire Creek Tributary 1:
At the confluence with Hampshire Creek.................... *898
Approximately 725 feet upstream of Keyes Drive............ *904
Hampshire Creek Tributary 2:
Approximately 100 feet upstream of the confluence with
Hampshire Creek.......................................... *907
Approximately 70 feet upstream of Prairie Farm Road....... *980
Hampshire Creek Tributary 3:
At the confluence with Hampshire Creek Tributary No. 2.... *963
Approximately 1,280 feet upstream of confluence with
Hampshire Creek Tributary No. 2.......................... *996
Hampshire Creek Tributary 4:
At the confluence with Hampshire Creek.................... *965
Approximately 640 feet upstream of confluence with
Hampshire Creek.......................................... *967
Mill Creek:
Approximately 0.5 mile downstream of Kaneville Road....... *704
Approximately 250 feet upstream of State Route 64 (Wasco
Road).................................................... *823
Mill Creek Tributary No. 2:
[[Page 6571]]
At the confluence with Mill Creek Diversion Channel....... *792
Approximately 0.4 mile upstream of confluence with Mill
Creek Diversion Channel.................................. *793
Mill Creek Diversion Channel:
At the confluence with Mill Creek......................... *784
Approximately 0.9 mile upstream of confluence with Mill
Creek.................................................... *796
Otter Creek:
At the confluence with Ferson Creek....................... *756
Just downstream of Randall Road........................... *797
Otter Creek Tributary:
At the confluence with Otter Creek........................ *760
Approximately 1.1 miles upstream of Falcons Trail......... *840
Stoney Creek:
At the confluence with Otter Creek........................ *773
Approximately 1.0 mile upstream of Crawford Road.......... *873
Maps available for inspection at the Government Center, 719
Batavia Avenue, Geneva, Illinois.
-------------------------------------------------------------
INDIANA
-------------------------------------------------------------
La Porte (city), La Porte County (FEMA Docket No. 7149)
-------------------------------------------------------------
Pine Lake:
Entire shoreline within community......................... *802
Stone Lake:
Entire shoreline within community......................... *802
Lily Lake:
Entire shoreline within community......................... *802
Clear Lake:
Entire shoreline within community......................... *802
Maps available for inspection at the City Engineer's Office,
La Porte City Hall, 801 Michigan Avenue, La Porte, Indiana.
------
La Porte County (unincorporated areas) (FEMA Docket No.
7149)
Pine Lake:
Entire shoreline within county............................ *802
Maps available for inspection at the La Porte County
Complex, 5th Floor, 822 East Lincoln Way, La Porte,
Indiana.
-------------------------------------------------------------
MAINE
-------------------------------------------------------------
Arundel (town), York County (FEMA Docket No. 7124)
Kennebunk River:
Approximately 200 feet downstream of confluence of Goff
Mill Brook............................................... *9
Approximately 0.5 mile upstream of U.S. Route 1........... *58
Maps available for inspection at the Town Hall, 468 Limerick
Road, Arundel, Maine.
------
Howland (town), Penobscot County (FEMA Docket No. 7124)
Piscataquis River:
Upstream side of Howland Dam.............................. *157
At the confluence of Maxy Brook........................... *172
Maps available for inspection at the Town Hall, Main Street,
Howland, Maine.
------
Milo (town), Piscataquis County (FEMA Docket No. 7124)
Piscataquis River:
Approximately 0.7 mile downstream of confluence of
Stinking Brook (downstream corporate limits)............. *283
At confluence of Meadow Brook (upstream corporate limits). *294
Pleasant River:
At downstream corporate limits............................ *283
At upstream corporate limits.............................. *330
Sebec River:
At confluence with Piscataquis River...................... *286
Approximately 700 feet upstream of upstream corporate
limits................................................... *293
Meadow Brook:
At confluence with Piscataquis River...................... *294
Approximately 50 feet upstream of River Road.............. *294
Maps available for inspection at the Town Hall, Pleasant
Street, Milo, Maine.
------
Poland (town), Androscoggin County (FEMA Docket No. 7124)
Little Androscoggin River:
Approximately 0.3 mile downstream of the confluence of
Davis Brook.............................................. *225
Approximately 2.7 miles upstream of State Route 12 and 11. *246
Tripp Pond:
Entire shoreline within community......................... *309
Thompson Lake:
Entire shoreline within community......................... *327
Winter Brook:
Approximately 1.7 miles downstream of Winter Brook Road... *309
Approximately 0.78 mile upstream from Winter Brook Road... *309
Davis Brook:
At confluence with Little Androscoggin River.............. *225
Approximately 50 feet upstream of Gravel Road............. *226
Worthley Brook:
At confluence with Little Androscoggin River.............. *232
Approximately 0.48 mile upstream of confluence with Little
Androscoggin River....................................... *235
Maps available for inspection at the Municipal Office
Building, Route 26, Poland, Maine.
------
Starks (town), Somerset County (FEMA Docket No. 7149)
Kennebec River:
At confluence of Sandy River.............................. *193
Approximately 1.7 miles upstream of the confluence of
Sandy River (upstream corporate limits).................. *201
Sandy River:
At confluence with Kennebec River......................... *193
Approximately 2.5 miles upstream of Sandy River Dam....... *202
Maps available for inspection at the Starks Town Hall, 950
Locke Hill Road, Starks, Maine.
-------------------------------------------------------------
NEW HAMPSHIRE
-------------------------------------------------------------
Bridgewater (town), Grafton County (FEMA Docket No. 7124)
Pemigewassett River:
Approximately 1.7 miles downstream of Woodman and Fog
Brooks................................................... *467
Approximately 0.6 mile upstream of U.S. Route 3........... *481
Maps available for inspection at the Selectmen's Office, 297
Mayhew Turnpike, Bridgewater, New Hampshire.
-------------------------------------------------------------
[[Page 6572]]
NORTH CAROLINA
-------------------------------------------------------------
Black Mountain (town), Buncombe County (FEMA Docket No.
7149)
Flat Creek:
At confluence with Swannanoa River........................ *2358
At downstream side of Cotton Avenue....................... *2403
Swannanoa River:
Approximately 200 feet upstream of confluence with North
Fork Swannanoa River..................................... *2233
Approximately 1,003 feet downstream of Old Toll Circle.... *2398
Maps available for inspection at the Building Inspector's
Office, 106 Montreat Road, Black Mountain, North Carolina.
------------------------------------------------------------------------
(Catalog of Federal Domestic Assistance No. 83.100, ``Flood
Insurance.'')
Dated: February 9, 1996.
Richard W. Krimm,
Acting Associate Director for Mitigation.
[FR Doc. 96-3848 Filed 2-20-96; 8:45 am]
BILLING CODE 6718-04-P
Complete official Federal Register PDF
FR Doc. 96-3847 Changes in Flood Elevation Determinations
[Federal Register Volume 61, Number 35 (Wednesday, February 21, 1996)]
[Rules and Regulations]
[Pages 6559-6560]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-3847]
=======================================================================
-----------------------------------------------------------------------
FEDERAL EMERGENCY MANAGEMENT AGENCY
44 CFR Part 65
Changes in Flood Elevation Determinations
AGENCY: Federal Emergency Management Agency, FEMA.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: Modified base (1% annual chance) flood elevations are
finalized for the communities listed below. These modified elevations
will be used to calculate flood insurance premium rates for new
buildings and their contents.
EFFECTIVE DATES: The effective dates for these modified base flood
elevations are indicated on the following table and revise the Flood
Insurance Rate Map(s) (FIRMs) in effect for each listed community prior
to this date.
ADDRESSES: The modified base flood elevations for each community are
available for inspection at the office of the Chief Executive Officer
of each community. The respective addresses are listed in the following
table.
FOR FURTHER INFORMATION CONTACT: Michael K. Buckley, P.E., Chief,
Hazard Identification Branch, Mitigation Directorate, 500 C Street SW.,
Washington, DC 20472, (202) 646-2756.
SUPPLEMENTARY INFORMATION: The Federal Emergency Management Agency
makes the final determinations listed below of modified base flood
elevations for each community listed. These modified elevations have
been published in newspapers of local circulation and ninety (90) days
have elapsed since that publication. The Associate Director has
resolved any appeals resulting from this notification.
The modified base flood elevations are not listed for each
community in this notice. However, this rule includes the address of
the Chief Executive Officer of the community where the modified base
flood elevation determinations are available for inspection.
The modifications are made pursuant to section 206 of the Flood
Disaster Protection Act of 1973, 42 U.S.C. 4105, and are in accordance
with the National Flood Insurance Act of 1968, 42 U.S.C. 4001 et seq.,
and with 44 CFR part 65.
For rating purposes, the currently effective community number is
shown and must be used for all new policies and renewals.
The modified base flood elevations are the basis for the floodplain
management measures that the community is required to either adopt or
to show evidence of being already in effect in order to qualify or to
remain qualified for participation in the National Flood Insurance
Program.
These modified elevations, together with the floodplain management
criteria required by 44 CFR 60.3, are the minimum that are required.
They should not be construed to mean that the community must change any
existing ordinances that are more stringent in their floodplain
management requirements. The community may at any time enact stricter
requirements of its own, or pursuant to policies established by other
Federal, state or regional entities.
These modified elevations are used to meet the floodplain
management requirements of the NFIP and are also used to calculate the
appropriate flood insurance premium rates for new buildings built after
these elevations are made final, and for the contents in these
buildings.
The changes in base flood elevations are in accordance with 44 CFR
65.4.
National Environmental Policy Act
This rule is categorically excluded from the requirements of 44 CFR
Part 10, Environmental Consideration. No environmental impact
assessment has been prepared.
Regulatory Flexibility Act
The Associate Director, Mitigation Directorate, certifies that this
rule is exempt from the requirements of the Regulatory Flexibility Act
because modified base flood elevations are required by the Flood
Disaster Protection Act of 1973, 42 U.S.C. 4105, and are required to
maintain community eligibility in the National Flood Insurance Program.
No regulatory flexibility analysis has been prepared.
Regulatory Classification
This final rule is not a significant regulatory action under the
criteria of section 3(f) of Executive Order 12866 of September 30,
1993, Regulatory Planning and Review, 58 FR 51735.
Executive Order 12612, Federalism
This rule involves no policies that have federalism implications
under Executive Order 12612, Federalism, dated October 26, 1987.
Executive Order 12778, Civil Justice Reform
This rule meets the applicable standards of section 2(b)(2) of
Executive Order 12778.
List of Subjects in 44 CFR Part 65
Flood insurance, Floodplains, Reporting and recordkeeping
requirements.
Accordingly, 44 CFR part 65 is amended to read as follows:
PART 65--[AMENDED]
1. The authority citation for part 65 continues to read as follows:
Authority: 42 U.S.C. 4001 et seq.; Reorganization Plan No. 3 of
1978, 3 CFR, 1978 Comp., p. 329; E.O. 12127, 44 FR 19367, 3 CFR,
1979 Comp., p. 376.
Sec. 65.4 [Amended]
2. The tables published under the authority of Sec. 65.4 are
amended as follows:
[[Page 6560]]
--------------------------------------------------------------------------------------------------------------------------------------------------------
Chief executive
State and county Location Dates and name of newspaper officer of Effective date of Community
where notice was published community modification No.
--------------------------------------------------------------------------------------------------------------------------------------------------------
North Carolina: Dare (FEMA Unincorporated areas........ June 6, 1995, June 13, 1995, The Mr. Robert V. May 30, 1995................ 375348 D
Docket No. 7141). Coastland Times. Owens,
Chairman of
the Dare
County Board
of
Commissioners,
P.O. Box 1000,
Manteo, North
Carolina 27954.
--------------------------------------------------------------------------------------------------------------------------------------------------------
(Catalog of Federal Domestic Assistance No. 83.100, ``Flood
Insurance'')
Dated: February 9, 1996.
Richard W. Krimm,
Acting Associate Director for Mitigation.
[FR Doc. 96-3847 Filed 2-20-96; 8:45 am]
BILLING CODE 6718-04-P
Complete official Federal Register PDF
FR Doc. 96-3846 Final Flood Elevation Determinations
[Federal Register Volume 61, Number 35 (Wednesday, February 21, 1996)]
[Rules and Regulations]
[Pages 6568-6569]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-3846]
-----------------------------------------------------------------------
FEDERAL EMERGENCY MANAGEMENT AGENCY
44 CFR Part 67
Final Flood Elevation Determinations
AGENCY: Federal Emergency Management Agency (FEMA).
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: Base (1% annual chance) flood elevations and modified base
flood elevations are made final for the communities listed below. The
base flood elevations and modified base flood elevations are the basis
for the floodplain management measures that each community is required
either to adopt or to show evidence of being already in effect in order
to qualify or remain qualified for participation in the National Flood
Insurance Program (NFIP).
EFFECTIVE DATE: The date of issuance of the Flood Insurance Rate Map
(FIRM) showing base flood elevations and modified base flood elevations
for each community. This date may be obtained by contacting the office
where the FIRM is available for inspection as indicated in the table
below.
ADDRESSES: The final base flood elevations for each community are
available for inspection at the office of the Chief Executive Officer
of each community. The respective addresses are listed in the table
below.
FOR FURTHER INFORMATION CONTACT: Michael K. Buckley, P.E., Chief,
Hazard Identification Branch, Mitigation Directorate, 500 C Street SW.,
Washington, DC 20472, (202) 646-2756.
SUPPLEMENTARY INFORMATION: The Federal Emergency Management Agency
makes final determinations listed below of base flood elevations and
modified base flood elevations for each community listed. The proposed
base flood elevations and proposed modified base flood elevations were
published in newspapers of local circulation and an opportunity for the
community or individuals to appeal the proposed determinations to or
through the community was provided for a period of ninety (90) days.
The proposed base flood elevations and proposed modified base flood
elevations were also published in the Federal Register.
This final rule is issued in accordance with Section 110 of the
Flood Disaster Protection Act of 1973, 42 U.S.C. 4104, and 44 CFR Part
67.
FEMA has developed criteria for floodplain management in floodprone
areas in accordance with 44 CFR Part 60.
Interested lessees and owners of real property are encouraged to
review the proof Flood Insurance Study and FIRM available at the
address cited below for each community.
The base flood elevations and modified base flood elevations are
made final in the communities listed below. Elevations at selected
locations in each community are shown.
National Environmental Policy Act
This rule is categorically excluded from the requirements of 44 CFR
Part 10, Environmental Consideration. No environmental impact
assessment has been prepared.
Regulatory Flexibility Act
The Associate Director for Mitigation certifies that this rule is
exempt from the requirements of the Regulatory Flexibility Act because
final or modified base flood elevations are required by the Flood
Disaster Protection Act of 1973, 42 U.S.C. 4104, and are required to
establish and maintain community eligibility in the NFIP. No regulatory
flexibility analysis has been prepared.
Regulatory Classification
This final rule is not a significant regulatory action under the
criteria of Section 3(f) of Executive Order 12866 of September 30,
1993, Regulatory Planning and Review, 58 FR 51735.
Executive Order 12612, Federalism
This rule involves no policies that have federalism implications
under Executive Order 12612, Federalism, dated October 26, 1987.
Executive Order 12778, Civil Justice Reform
This rule meets the applicable standards of Section 2(b)(2) of
Executive Order 12778.
List of Subjects in CFR Part 67
Administrative practice and procedure, Flood insurance, Reporting
and recordkeeping requirements.
Accordingly, 44 CFR Part 67 is amended to read as follows:
PART 67--[AMENDED]
1. The authority citation for Part 67 continues to read as follows:
Authority: 42 U.S.C. 4001 et seq.; Reorganization Plan No. 3 of
1978, 3 CFR, 1978 Comp., p. 329; E.O. 12127, 44 FR 19367, 3 CFR,
1979 Comp., p. 376.
Sec. 67.11 [Amended]
2. The tables published under the authority of Sec. 67.11 are
amended as follows:
[[Page 6569]]
------------------------------------------------------------------------
#Depth in
feet above
ground.
Source of flooding and location *Elevation
in feet
(NGVD)
------------------------------------------------------------------------
NEW MEXICO
-------------------------------------------------------------
Carlsbad (city), Eddy County (FEMA Docket No. 7122)
Dark Canyon Draw:
Approximately 100 feet downstream of the Atchison, Topeka,
and Santa Fe Railroad.................................... *3,103
Just upstream of the Southern Canal Siphon................ *3,132
Approximately 50 feet downstream of Dark Canyon Road...... *3,191
At the western corporate limit, adjacent to the Carlsbad
Army Air Field........................................... *3,265
Hackberry Draw:
Approximately 500 feet north of the intersection of Curry
Street and the corporate limits.......................... *3,138
At the intersection of Fifth Street and Ross.............. *3,140
Approximately 100 feet upstream of the intersection of
Eighth Street and Washington Street...................... *3,144
Approximately 500 feet upstream of Lea Street and
approximately 2,800 feet west and 2,200 feet south of the
intersection of Texas and Eleventh Street................ *3,161
At the intersection of Mesquite Street and Mermod Street.. #2
Pecos River:
Just upstream of Lower Tansill Dam........................ *3,103
At North Canal Street..................................... *3,114
At the intersection of George and Riverside Drive......... *3,120
Approximately 200 feet downstream of the Southern Canal
Crossing................................................. *3,123
At the intersection of Bonbright Street and Main Street... #1
At the intersection of Stevens Street and Main Street..... #2
Maps are available for inspection at City Hall, City of
Carlsbad, 101 South Halagueno, Carlsbad, New Mexico.
------
Eddy County (unincorporated areas) (FEMA Docket No. 7122)
Dark Canyon Draw:
Approximately 100 feet downstream of the Southern Pacific
Railroad................................................. *3,103
At the Southern Canal Siphon.............................. *3,132
Approximately 5.1 miles upstream of the Southern Canal
Siphon................................................... *3,269
Hackberry Draw:
At confluence with Dark Canyon Draw....................... *3,132
At Southern Canal......................................... *3,140
At Lea Street............................................. *3,158
Approximately 100 feet downstream of Marquess Street...... *3,184
Just downstream of the Hackberry Draw Dam................. *3,227
Approximately 500 feet east and 500 feet south of the
intersection of Curry Street and Quay Street............. #2
Pecos River:
Approximately 1,000 feet south of the Atchison, Topeka,
and Santa Fe Railroad.................................... *3,112
Maps are available for inspection at Eddy County's
Courthouse, 101 North Canal Street, Carlsbad, New Mexico.
-------------------------------------------------------------
SOUTH DAKOTA
-------------------------------------------------------------
Pennington County (unincorporated areas) (FEMA Docket No.
7134)
Rapid Creek:
Approximately 4,500 feet upstream of Jolly Lane (County
Road 274)................................................ *3,101
Approximately 1,250 feet downstream of Valley Drive....... *3,114
Approximately 2,350 feet upstream of Valley Drive......... *3,125
Approximately 4,300 feet upstream of Valley Drive......... *3,129
Approximately 5,500 feet downstream of East St. Patrick
Street................................................... *3,132
Maps are available for inspection at Pennington County
Planning Division, 300 Sixth Street, Rapid City, South
Dakota.
-------------------------------------------------------------
WASHINGTON
-------------------------------------------------------------
King County (unincorporated areas) (FEMA Docket No. 7146)
Raging River:
At confluence with the Snoqualmie River................... *96
Just upstream of Carmichael Road.......................... *204
Just upstream of 68th Street.............................. *259
Just upstream of South 86th Street........................ *394
At Interstate Highway 90.................................. *426
Approximately 1,800 feet upstream of Interstate Highway 90 *450
Approximately 3,050 feet upstream of Interstate Highway 90 *470
At confluence with Lake Creek............................. *542
At confluence with Deep Creek............................. *634
Approximately 0.3 mile upstream of the second Upper
Preston Road Bridge...................................... *673
Maps are available for inspection at the Building and Land
Development Division, 3600 136th Place, Bellevue,
Washington.
------------------------------------------------------------------------
(Catalog of Federal Domestic Assistance No. 83.100, ``Flood
Insurance'')
Dated: February 9, 1996.
Richard W. Krimm,
Acting Associate Director for Mitigation.
[FR Doc. 96-3846 Filed 2-20-96; 8:45 am]
BILLING CODE 6718-04-P
Complete official Federal Register PDF
FR Doc. 96-3845 Changes in Flood Elevation Determinations
[Federal Register Volume 61, Number 35 (Wednesday, February 21, 1996)]
[Rules and Regulations]
[Pages 6567-6568]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-3845]
-----------------------------------------------------------------------
FEDERAL EMERGENCY MANAGEMENT AGENCY
44 CFR Part 65
Changes in Flood Elevation Determinations
AGENCY: Federal Emergency Management Agency (FEMA).
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: Modified base (1% annual chance) flood elevations are
finalized for the communities listed below. These modified elevations
will be used to calculate flood insurance premium rates for new
buildings and their contents.
EFFECTIVE DATE: The effective dates for these modified base flood
elevations are indicated in the table below and revise the Flood
Insurance Rate Map(s) in effect for the listed communities prior to
this date.
ADDRESSES: The modified base flood elevations for each community are
available for inspection at the office of the Chief Executive Officer
of each community. The respective addresses are listed in the table
below.
FOR FURTHER INFORMATION CONTACT: Michael K. Buckley, P.E., Chief,
Hazard Identification Branch, Mitigation Directorate, 500 C Street,
SW., Washington, DC 20472, (202) 646-2756.
SUPPLEMENTARY INFORMATION: The Federal Emergency Management Agency
makes the final determinations listed below of the final determinations
of modified base flood elevations for each community listed. These
modified elevations have been published in newspapers of local
circulation and ninety (90) days have elapsed since that publication.
The Associate Director for Mitigation has resolved any appeals
resulting from this notification.
The modified base flood elevations are not listed for each
community in this notice. However, this rule includes the address of
the Chief Executive Officer of the community where the modified base
flood elevation determinations are available for inspection.
The modifications are made pursuant to Section 206 of the Flood
Disaster Protection Act of 1973, 42 U.S.C. 4105, and are in accordance
with the National Flood Insurance Act of 1968, 42 U.S.C. 4001 et seq.,
and with 44 CFR Part 65.
For rating purposes, the currently effective community number is
shown and must be used for all new policies and renewals.
The modified base flood elevations are the basis for the floodplain
management measures that the community is required to either adopt or
to show evidence of being already in effect in order to qualify or to
remain qualified for participation in the National Flood Insurance
Program (NFIP).
These modified elevations, together with the floodplain management
criteria required by 44 CFR 60.3, are the minimum that are required.
They should not be construed to mean that the community must change any
existing ordinances that are more stringent in their floodplain
management requirements. The community may at any time enact stricter
requirements of its own, or pursuant to policies established by other
Federal, State, or regional entities.
These modified elevations are used to meet the floodplain
management requirements of the NFIP and are also used to calculate the
appropriate flood insurance premium rates for new buildings built after
these elevations are made final, and for the contents in these
buildings.
The changes in base flood elevations are in accordance with 44 CFR
65.4.
National Environmental Policy Act
This rule is categorically excluded from the requirements of 44 CFR
Part 10, Environmental Consideration. No environmental impact
assessment has been prepared.
Regulatory Flexibility Act
The Associate Director, Mitigation Directorate, certifies that this
rule is exempt from the requirements of the Regulatory Flexibility Act
because modified base flood elevations are required by the Flood
Disaster Protection Act of 1973, 42 U.S.C. 4105, and are required to
maintain community eligibility in the NFIP. No regulatory flexibility
analysis has been prepared.
Regulatory Classification
This final rule is not a significant regulatory action under the
criteria of Section 3(f) of Executive Order 12866 of September 30,
1993, Regulatory Planning and Review, 58 FR 51735.
Executive Order 12612, Federalism
This rule involves no policies that have federalism implications
under Executive Order 12612, Federalism, dated October 26, 1987.
Executive Order 12778, Civil Justice Reform
This rule meets the applicable standards of Section 2(b)(2) of
Executive Order 12778.
List of Subjects in 44 CFR Part 65
Flood insurance, Floodplains, Reporting and recordkeeping
requirements.
Accordingly, 44 CFR Part 65 is amended to read as follows:
PART 65--[AMENDED]
1. The authority citation for Part 65 continues to read as follows:
Authority: 42 U.S.C. 4001 et seq.; Reorganization Plan No. 3 of
1978, 3 CFR, 1978 Comp., p. 329; E.O. 12127, 44 FR 19367, 3 CFR,
1979 Comp., p. 376.
Sec. 65.4 [Amended]
2. The tables published under the authority of Sec. 65.4 are
amended as follows:
--------------------------------------------------------------------------------------------------------------------------------------------------------
Chief executive
State and county Location Dates and name of newspaper officer of Effective date of Community
where notice was published community modification No.
--------------------------------------------------------------------------------------------------------------------------------------------------------
Louisiana: St. Mary Parish City of Morgan City......... July 19, 1995, July 26, 1995, The Honorable June 28, 1995............... 220196
(FEMA Docket No. 7152). Daily Review. Timothy I.
Matte, Mayor,
City of Morgan
City, P.O. Box
1218, Morgan
City,
Louisiana
70381.
[[Page 6568]]
Texas: Coryell (FEMA Docket City of Copperas Cove....... Aug. 18, 1995, Aug. 23, 1995, The Honorable July 18, 1995............... 480155
No. 7156). Killeen Daily Herald. J. A.
Darossett,
Mayor, City of
Copperas Cove,
P.O. Drawer
1449, Copperas
Cove, Texas
76522.
Texas: El Paso (FEMA Docket City of El Paso............. Aug. 23, 1995, Aug. 30, 1995, El The Honorable July 24, 1995............... 480214
No. 7156). Paso Times. Larry Francis,
Mayor, City of
El Paso, Two
Civic Center
Plaza, El
Paso, Texas
79901-1196.
Texas: Tarrant (FEMA Docket City of Keller.............. Aug. 22, 1995, Aug. 29, 1995, The Honorable July 25, 1995............... 480602
No. 7156). Keller Citizen. Ron Lee,
Mayor, City of
Keller, P.O.
Box 770,
Keller, Texas
76244.
--------------------------------------------------------------------------------------------------------------------------------------------------------
(Catalog of Federal Domestic Assistance No. 83.100, ``Flood
Insurance'')
Dated: February 9, 1996.
Richard W. Krimm,
Acting Associate Director for Mitigation.
[FR Doc. 96-3845 Filed 2-20-96; 8:45 am]
BILLING CODE 6718-04-P
Complete official Federal Register PDF
FR Doc. 96-3821 Emergency Medical Radio Service
[Federal Register Volume 61, Number 35 (Wednesday, February 21, 1996)]
[Rules and Regulations]
[Pages 6575-6577]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-3821]
=======================================================================
-----------------------------------------------------------------------
FEDERAL COMMUNICATIONS COMMISSION
47 CFR Part 90
[PR Docket No. 91-72; FCC 96-11]
Emergency Medical Radio Service
AGENCY: Federal Communications Commission.
ACTION: Final Rule.
-----------------------------------------------------------------------
SUMMARY: The Commission has reaffirmed its decision to establish the
Emergency Medical Radio Service (EMRS), as well as reaffirmed the
assignment of certain 453 MHz frequencies to the EMRS. Additionally,
the Commission granted ProNet, Inc.'s request that its medical paging
system operating on 453.125 MHz in the Chicago metropolitan area be
permanently grandfathered. Finally, the Commission permitted certain
licensees (medical services, rescue organizations, disaster relief
organizations and beach patrols) to use Channels 161-170 as they are
engaged in safety-of-life services. These actions were taken to improve
the communications capabilities of entities engaged in providing life
support activities. The rule changes and the grant of the waiver
request will ensure the reliability of emergency medical
communications.
EFFECTIVE DATE: March 22, 1996.
FOR FURTHER INFORMATION CONTACT: Freda Lippert Thyden, Wireless
Telecommunications Bureau, (202) 418-0680.
SUPPLEMENTARY INFORMATION: This is a summary of the Commission's
Memorandum Opinion and Order, PR Docket No. 91-72, FCC 96-11, adopted
January 18, 1996, and released February 8, 1996. The full text of this
Memorandum Opinion and Order is available for inspection and copying
during normal business hours in the FCC Dockets Branch, Room 230, 1919
M Street N.W., Washington, D.C. The complete text may be purchased from
the Commission's copy contractor, International Transcription Service,
Inc., 2100 M Street, N.W., Suite 140, Washington, D.C. 20037, telephone
(202) 857-3800.
This Memorandum Opinion and Order imposes no paperwork burden on
the public.
Summary of Memorandum Opinion and Order
1. In this Memorandum Opinion and Order, we affirm the action taken
in the Report and Order (58 Fed. Reg 12177 (March 3, 1993)),
establishing the Emergency Medical Radio Service (EMRS) as a new Public
Safety Radio Service under Subpart B of Part 90 of the Commission's
Rules. The record substantiates the need for this new radio service to
ensure the reliability of emergency medical communications. We also
affirm the reassignment of four 453 MHz frequencies (453.025/.075/.125/
.175 MHz) from the Special Emergency Radio Service (SERS) to the EMRS.
These frequencies, previously assigned for one-way paging operations,
were chosen as particularly appropriate for EMRS use because they
minimize disruption to the remaining non-EMRS SERS entities.
2. ProNet, Inc.(ProNet), a petitioner for reconsideration of the
Report and Order, mistakenly believes that it should be accorded a
hearing pursuant to Section 316 of the Communications Act of 1934, as
amended, before its radio license is modified. Under this statutory
provision, a license is not considered modified when the Commission--
acting by rule making--affects the rights of all licensees of a
particular class.
3. ProNet has substantiated its request for permanently waiving
mandatory reassignment of 453.125 MHz in the greater metropolitan
Chicago area to EMRS. It commissioned a study of spectrum usage in the
Chicago area as well as submitted relevant affidavits. Although only
required to meet one criterion, ProNet met all the established criteria
to justify grant of the waiver request. First, it appears that ProNet's
system is intensely utilized. Second, relocation of ProNet's medical
paging system would not serve the public interest because no reasonable
alternative for its paging system is available in the Chicago area.
Third, petitioner illustrates the continued availability of MED channel
capacity in metropolitan Chicago and, therefore, there appears to be
adequate spectrum for emergency medical service transmissions in the
Chicago area. ProNet has successfully demonstrated that unique
circumstances are involved in its case, thus warranting waiver.
4. ProNet's request for authority to be licensed to operate
transmitting facilities on 453.125 MHz anywhere is Wisconsin, Illinois
and Indiana--within a one hundred mile radius of its existing site--is
denied. This request involves future operations and was not
contemplated by the waiver provisions contained in the Report and
Order.
5. Finally, the Commission will permit licensees eligible to
operate radio facilities as medical services (47 CFR Sec. 90.35),
rescue organizations (47 CFR Sec. 90.37), disaster relief organizations
(47 CFR Sec. 90.41) and beach patrols (47 CFR Sec. 90.45) to use
narrowband Channels 161-170 to enable them--while conducting safety-of-
life communications--to communicate with one another. These four
service categories need frequencies for Mutual Aid purposes. Permitting
those licensed in these categories to use Channels 161-170 in the 220-
222 MHz band will serve the public interest by enhancing
interoperability between many types of emergency providers in safety-
of-life situations.
List of Subjects in 47 CFR Part 90
Emergency medical services, Radio.
[[Page 6576]]
Federal Communications Commission.
William F. Caton,
Acting Secretary.
Rule Changes
Part 90 of Chapter I of Title 47 of the Code of Federal Regulations
is amended as follows:
PART 90--[AMENDED]
Part 90 Private land mobile radio services:
1. The authority citation for Part 90 continues to read as follows:
Authority: Sections 4, 303, 332, 48 Stat. 1066, 1082, as
amended; 47 U.S.C. 154, 303, and 332, unless otherwise noted.
2. Section 90.17 is amended by revising paragraph (c)(11) to read
as follows:
Sec. 90.17 Local Government Radio Service.
* * * * *
(c) * * *
(11) This frequency is available for systems first licensed prior
to March 31, 1980, for radio call box communications related to safety
on highways in accordance with the provisions of Sec. 90.241(c). No new
systems will be authorized of this nature, but systems authorized prior
to March 31, 1980 may be modified, expanded, and renewed. Also,
effective April 2, 1993, this frequency is shared with EMRS systems in
accordance with Sec. 90.27.
* * * * *
3. Section 90.19 is amended by revising paragraph (e)(17) to read
as follows:
Sec. 90.19 Police Radio Service.
* * * * *
(e) * * *
(17) This frequency is shared with the Fire and Emergency Medical
Radio Services.
* * * * *
4. Section 90.21 is amended by revising paragraph (c)(8) to read as
follows:
Sec. 90.21 Fire Radio Service.
* * * * *
(c) * * *
(8) This frequency is shared with the Police and Emergency Medical
Radio Services.
* * * * *
5. Section 90.27 is amended by revising the second sentence of
paragraph (a), and by adding the words ``or mobile'' to the Class of
station(s) for Frequencies 453.025, 453.075, 453.125 and 453.175 MHz in
paragraph (b), to read as follows:
Sec. 90.27 Emergency Medical Radio Service.
(a) * * * Applications submitted by persons or organizations
(governmental or otherwise) other than the governmental body having
jurisdiction over the state's emergency medical service plans must be
accompanied by a statement prepared by the governmental body having
jurisdiction over the state's emergency medical services plan
indicating that the applicant is included in the state's emergency plan
or otherwise supporting the application.
* * * * *
6. Section 90.238 is amended by revising paragraph (h) to read as
follows:
Sec. 90.238 Telemetry operations.
* * * * *
(h) 458-468 MHz band (as available in the Emergency Medical Radio
Service for bio-medical telemetry operations).
* * * * *
7. Section 90.243 is amended by revising paragraphs (a)(1), (a)(2),
and (b)(1) to read as follows:
Sec. 90.243 Mobile relay stations.
(a) * * *
(1) On frequencies below 450 MHz, except for the 220-222 MHz band,
mobile relay stations may be authorized within the contiguous 48 states
to operate only in the Police, Fire, Local Government, Highway
Maintenance, Forestry-Conservation, Emergency Medical, Power,
Petroleum, Forest Products, Manufacturers, Telephone Maintenance, and
Railroad Radio Services.
(2) On frequencies below 450 MHz, except for the 220-222 MHz band,
mobile relay stations may be authorized outside the contiguous 48
states to operate only in the Police, Fire, Local Government, Highway
Maintenance, Forestry-Conservation, Emergency Medical, Power,
Petroleum, Forest Products, Manufacturers, Telephone Maintenance,
Railroad, Business, and Special Industrial Radio Services.
* * * * *
(b) * * *
(1) In the Emergency Medical and Special Emergency Radio Services,
medical services systems in the 150-160 MHz band are permitted to be
cross banded for mobile and control station operations with mobile
relay stations authorized to operate in the 450-470 MHz band.
* * * * *
8. Section 90.273 is amended by revising the first sentence of
paragraph (b) to read as follows:
Sec. 90.273 Availability and use of frequencies in the 421-430 MHz
band.
* * * * *
(b) Channels in the public safety pool are available for assignment
to eligibles in the Public Safety and Special Emergency Radio Services.
* * *
* * * * *
9. Section 90.421 is amended by redesignating paragraph (k) as
paragraph (l) and adding new paragraph (k) to read as follows:
Sec. 90.421 Operation of mobile units in vehicles not under the
control of the licensee.
* * * * *
(k) Mobile units licensed in the Emergency Medical Radio Service
may be installed in a vehicle or be hand-carried for use by any person
with whom cooperation or coordination is required for medical services
activities.
* * * * *
10. Section 90.477 is amended by revising the first sentence of
paragraph (d)(3) to read as follows:
Sec. 90.477 Interconnected systems.
* * * * *
(d) * * *
(3) In the Special Emergency, Business, Special Industrial,
Automobile, and Taxicab Radio Services, interconnection will be
permitted only where the base station site or sites of proposed
stations are located 120 km (75 mi) or more from the designated centers
of the urbanized areas listed below. * * *
* * * * *
11. Section 90.483 is amended by revising the third sentence of
paragraph (d) to read as follows:
Sec. 90.483 Permissible methods and requirements of interconnecting
private and public systems of communications.
* * * * *
(d) * * * This provision does not apply to systems licensed in the
Police, Fire, Local Government, Emergency Medical, Special Emergency,
Power, Petroleum and Railroad Radio Services, or above 800 MHz. * * *
12. Section 90.617 is amended by revising the first sentence of
paragraph (a) to read as follows:
Sec. 90.617 Frequencies in the 809.750-824/854.750-869 MHz and 896-
901/935-940 MHz bands available for trunked or conventional system use
in non-border areas.
(a) The channels listed in Table 1 and paragraph (a)(1) of this
section for the Public Safety Category are available to applicants
eligible in the Public Safety and Special Emergency Radio Services. * *
*
* * * * *
[[Page 6577]]
13. Section 90.619 is amended by revising the first sentence of
paragraph (a)(1) and the first sentence of paragraph (b)(7)(iii) to
read as follows:
Sec. 90.619 Frequencies available for use in the U.S./Mexico and U.S./
Canada border areas.
(a) * * *
(1) Table 1A lists the channels in the 806-821/851-866 MHz band
Public Safety Category that are available for assignment to applicants
eligible in the Public Safety and Special Emergency Radio Services. * *
*
* * * * *
(b) * * *
(7) * * *
(iii) The Public Safety Category consists of the Public Safety and
the Special Emergency Radio Services. * * *
14. Section 90.631 is amended by revising the second sentence of
paragraph (g) to read as follows:
Sec. 90.631 Trunked system loading, construction, and authorization
requirements.
* * * * *
(g) * * * Remote or satellite stations of wide area systems in the
Public Safety, Special Emergency, Telephone Maintenance, and Power
Radio Services may be authorized on a primary basis if such stations
are the first to be authorized in their area of operation on the
frequency or group of frequencies. * * *
* * * * *
15. Section 90.720 is revised to read as follows:
Sec. 90.720 Channels available for public safety/mutual aid.
(a) Part 90 licensees whose licenses reflect a two-letter radio
service code beginning with the letter ``P'' are authorized by this
rule to use mobile and/or portable units on Channels 161-170 throughout
the United States, its territories, and possessions to transmit:
(1) Communications relating to the immediate safety of life; or
(2) Communications to facilitate interoperability among public
safety entities, and public safety entities and Special Emergency Radio
Service eligibles in Secs. 90.35, 90.37, 90.41 and 90.45.
(b) Any entity eligible to obtain a license under subpart B of this
part or eligible to obtain a license under Secs. 90.35, 90.37, 90.41
and 90.45 of subpart C of this part is also eligible to obtain a
license for base/mobile operations on Channels 161-170. Base/mobile or
base/portable communications on these channels that do not relate to
the immediate safety of life or to communications interoperability
among public safety entities, and public safety and the above specified
special emergency entities may only be conducted on a secondary non-
interference basis to such communications.
[FR Doc. 96-3821 Filed 2-20-96; 8:45 am]
BILLING CODE 6712-01-P
Complete official Federal Register PDF
FR Doc. 96-3820 Wyoming Abandoned Mine Land Reclamation Plan
[Federal Register Volume 61, Number 35 (Wednesday, February 21, 1996)]
[Rules and Regulations]
[Pages 6537-6540]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-3820]
-----------------------------------------------------------------------
DEPARTMENT OF THE INTERIOR
30 CFR Part 950
[SPATS No. WY-024-FOR]
Wyoming Abandoned Mine Land Reclamation Plan
AGENCY: Office of Surface Mining Reclamation and Enforcement, Interior.
ACTION: Final rule; approval of amendment.
-----------------------------------------------------------------------
SUMMARY: The Office of Surface Mining Reclamation and Enforcement (OSM)
is approving, with certain exceptions and additional requirements, a
proposed amendment to the Wyoming Abandoned Mine Land Reclamation
(AMLR) plan (hereinafter referred to as the ``Wyoming plan'') under the
Surface Mining Control and Reclamation Act of 1977 (SMCRA). Wyoming is
revising and adding statutes pertaining to noncoal lien authority and
contractor eligibility. The amendment revises the Wyoming plan to be
consistent with SMCRA, to incorporate the additional flexibility
afforded by the revised Federal regulations, and to improve operational
efficiency.
EFFECTIVE DATE: February 21, 1996.
FOR FURTHER INFORMATION CONTACT: Guy Padgett, Casper Field Office,
Telephone: (307) 261-5776.
SUPPLEMENTARY INFORMATION:
I. Background on the Wyoming Plan
On February 14, 1983, the Secretary of the Interior approved the
Wyoming plan. General background information on the Wyoming plan,
including the Secretary's findings and the disposition of comments, can
be found in the February 14, 1983, Federal Register (48 FR 6536).
Subsequent actions concerning Wyoming's plan and plan amendments can be
found at 30 CFR 950.30, 950.35, and 950.36.
II. Proposed Amendment
By letter dated April 21, 1995, Wyoming submitted a proposed
amendment to its plan (administrative record No. WY-AML-18-8) pursuant
to SMCRA (30 U.S.C. 1201 et seq.). Wyoming submitted the proposed
amendment at its own initiative and in response to a September 26,
1994, letter (administrative record No. WY-AML-18-1) that OSM sent to
Wyoming in accordance with 30 CFR 884.15(b).
The provisions of Wyoming's statute that Wyoming proposed to revise
and add were: Wyoming Statute (W.S.) 35-11-1206(a) and (b), liens for
reclamation on private land, and W.S. 35-11-1209(a) and (b), contractor
eligibility.
OSM announced receipt of the proposed amendment in the May 18,
1995, Federal Register (60 FR 26704), provided an opportunity for a
public hearing or meeting on its substantive adequacy, and invited
public comment on its adequacy (administrative record No. WY-AML-18-9).
Because no one requested a public hearing or meeting, none was held.
The public comment period ended on June 19, 1995.
During its review of the amendment, OSM identified concerns
relating to the provisions of W.S. 35-11-1206 and the amount of the
lien placed on reclaimed private lands. OSM notified Wyoming of the
concerns by letter dated August 9, 1995 (administrative record No. WY-
AML-18-16). Wyoming responded in a letter dated August 29, 1995, by
submitting additional explanatory information for W.S. 35-11-1206
regarding the cost of reclamation in the lien computation
(administrative record No. WY-AML-18-17).
Based upon the additional explanatory information for the proposed
plan amendment submitted by Wyoming, OSM reopened the public comment
period in the September 20, 1995, Federal Register (60 FR 48678,
administrative record No. WY-AML-18-18). The public comment period
closed on October 5, 1995.
III. Director's Findings
As discussed below, the Director, in accordance with SMCRA and 30
CFR 884.14 and 884.15, finds, with certain exceptions and additional
requirements, that the proposed plan amendment submitted by Wyoming on
April 21, 1995, and as supplemented with additional explanatory
information on August 29, 1995, is in compliance with the Federal
regulations at 30 CFR Subchapter R and is consistent with SMCRA. Thus,
the Director approves, with certain exceptions and additional
requirements, the proposed amendment.
1. W.S. 35-11-1206(a) and (b), Liens for Reclamation on Private Lands
Wyoming proposed to add the following italicized language to its
provisions at W.S. 35-11-1206(a), concerning liens for reclamation on
private lands, by providing, in part, that
[w]ithin six (6) months after the completion of projects to restore,
reclaim, abate, control or prevent adverse effects of past coal or
mineral mining practices on privately owned land, the director [of
the Abandoned Mine Land Division] shall itemize the monies expended
and may file a lien against the property with the appropriate county
clerk. If the monies expended result in a significant increase in
property value, a notarized appraisal by an independent appraiser
shall be filed with the lien. The lien shall not exceed the cost of
reclamation work or the amount determined by the appraisal to be the
increase in the fair market value of the land as a result of the
restoration, reclamation, abatement, control or prevention of the
adverse effects of past coal or mineral mining practices, whichever
is less.
In addition, Wyoming proposed the addition of the italicized
language at W.S. 35-11-1206(b) to provide that
[t]he landowner may petition the district court for the district in
which the majority of the land is located within sixty (60) days of
the filing of the lien to determine the increase in the fair market
value of the land. The amount reported to be the increase in value
of the premises, but not exceeding the cost of the reclamation work,
shall constitute the amount of the lien and shall be recorded with
the lien.
As discussed below, the counterparts to these proposed State
provisions are at sections 408 and 411(g) of SMCRA and in the Federal
regulations at 30 CFR Part 882.
Section 408(a) of SMCRA requires that the lien shall not exceed the
amount determined by the appraisal to be the increase in the market
value of the land as a result of the restoration, reclamation,
abatement, control, or prevention of the adverse effects of past coal
mining practices. Section 408(b) of SMCRA provides that the landowner
may petition to determine the increase in the market value of the land
reclaimed and that the amount reported to be the increase in value of
the premises shall constitute the amount of the lien. Section 411(g) of
SMCRA allows the provisions of section 408 to be applied to noncoal
sites after a State's
[[Page 6538]]
certification of completion of coal projects. OSM announced in the May
25, 1984, Federal Register (49 FR 22139) that Wyoming had certified to
the completion of, or was in the process of completing, the reclamation
of all known coal-related impacts eligible for funding under the
State's AMLR program, and accordingly, Wyoming could use AMLR funds for
noncoal projects that do not directly relate to public health or
safety.
The Federal regulations at 30 CFR Part 882, which concern
reclamation on private coal or noncoal land, provide at 882.12(a) that
the appraisal shall state the estimated market value of the property in
its unreclaimed condition and of the same property as reclaimed, and at
882.13(a), that OSM, the State, or Indian tribe has the discretionary
authority to place or waive a lien against land reclaimed if the
reclamation results in a significant increase in the ``fair market
value.''
The Director finds that the language proposed by Wyoming at W.S.
35-11-1206(a) that allows the Abandoned Mine Land Division (Division)
to place liens on lands affected by past mineral mining practices after
the completion of projects to restore, reclaim, abate, control, or
prevent adverse impacts on such lands is consistent with sections 408
and 411(g) of SMCRA. Therefore, the Director approves the revision of
W.S. 35-11-1206(a) allowing liens to be placed on private lands
adversely effected by past mineral mining practices.
In addition, the Director finds that the language proposed by
Wyoming at W.S. 35-11-1206 (a) and (b) that limits the lien amount to
the cost of reclamation work or the increase in the fair market value
in inconsistent with SMCRA and the Federal regulations to the extent
that sections 408 (a) and (b) of SMCRA and the Federal regulations at
30 CFR Part 882 do not allow for a lien that is less than the increase
in the fair market value of the reclaimed land (i.e., they do not
provide for a lien that is equal to the cost of reclamation work if the
cost of reclamation work is less than the increase in the fair market
value). Therefore, although the Director approves the work ``fair'' in
proposed W.S. 35-11-1206(a) and (b), he does not approve the phrases
``cost of the reclamation work or the'' and ``whichever is less'' in
W.S. 35-11-1206(a) and the phrase ``but not exceeding the cost of the
reclamation work,'' in W.S. 35-11-1206(b). The Director requires
Wyoming to remove these phrases from W.S. 35-11-1206(a) and (b).
2. W.S. 35-11-1209, Contractor Eligibility
(a) W.S. 35-11-1209(a).--Wyoming proposed to create W.S. 35-11-
1209(a) to require that the Division will not issue a contract to any
construction contractor or professional services contractor if any
surface coal mining and reclamation operation owned or controlled by
the contractor, or by any person who owns or controls the contractor,
has any (1) delinquent abandoned mine reclamation fees, (2) Federal or
State failure-to-abate cessation orders, (3) unabated Federal or State
imminent harm cessation orders, (4) delinquent civil penalties issued
under SMCRA, (5) bond forfeitures where the violation upon which the
forfeiture was based has not been corrected, and (6) unabated
violations of Federal or State laws, rules, or regulations pertaining
to air or water environmental protection incurred in connection with
any surface coal mining operation.
There is no direct counterpart to these provisions in SMCRA.
However, the Federal regulations at 30 CFR 874.16 (for coal) and 875.20
(for noncoal) do correspond to the proposed State statutory provisions
and they provide that every successful bidder for an AMLR contract must
be eligible under 30 CFR 773.15(b)(1) at the time of contract award to
receive a permit or conditional permit to conduct surface coal mining
operations and that bidder eligibility will be confirmed by OSM's
automated Applicant/Violator System (AVS) for each contract to be
awarded.
Wyoming proposed at W.S. 35-11-1209(a) certain provisions
concerning issuance of an AMLR contract to any construction contractor
or professional services contractor that are substantively identical to
counterpart provisions provided at 30 CFR 773.15(b)(1), which is
referenced at 30 CFR 874.16 and 875.20. Specifically, Wyoming included
at paragraphs (i), (v), and (vi) delinquent abandoned mine reclamation
fees, bond forfeitures involving uncorrected violations, and unabated
violations of Federal and State laws, rules, and regulations pertaining
to air or water environmental protection incurred in connection with
any surface coal mining operation. The Director finds that the proposed
criteria provided at W.S. 35-11-1209(a)(i), (v), and (vi) are in
compliance with 30 CFR 874.16 and 875.20 and he approves these
provisions.
Wyoming proposed at W.,S. 35-11-1209(a)(ii) and (iii) other
requirements that are not in compliance with 30 CFR 874.16 and 875.20.
Wyoming's proposed list of criteria that prohibit the awarding of an
AMLR contract do not include all of the criteria of the referenced
Federal regulation at 30 CFR 773.15(b)(1). In drafting the language for
W.S. 35-11-1209(a), Wyoming used provisions substantively identical to
language that previously existed in 30 CFR 773.15(b)(1). However,
Wyoming was not aware of or did not take into account revisions to this
Federal regulation that OSM published in the October 28, 1994, Federal
Register (59 FR 54306).
The Federal regulations at 30 CFR 773.15(b)(1) now include, in
addition to the criteria included in Wyoming's proposed statute,
violations ``of the Act [(SMCRA)], any Federal rule or regulation
promulgated pursuant thereto, [and of] a State program.'' Although
Wyoming's proposed language includes Federal or State failure-to-abate
and imminent harm cessation orders in its criteria list used to
determine a contractor's eligibility to receive an AMLR contract, it
does not include Federal and State notices of violations and any other
``written notification from a governmental entity, whether by letter,
memorandum, judicial or administrative pleading, or other written
communication, of a violation of the Act; any Federal rule or
regulation promulgated pursuant thereto; [or a] State program,'' which
is set forth in the definition of ``violation notice'' at 30 CFR 773.5.
Therefore, in this respect, proposed W.S. 35-11-1209(a)(ii) and (iii)
are not in compliance with 30 CFR 874.16 and 875.20, which reference 30
CFR 773.15(b)(1). The Director requires Wyoming to revise W.S. 35-11-
1209(a), or otherwise amend its statute, rules, and/or plan, to include
as a criterion for awarding AMLR contracts, Federal and State notices
of violations and any other written notification from a governmental
entity, whether by letter, memorandum, judicial or administrative
pleading, or other written communication, of a violation of the Act;
any Federal rule or regulation promulgated pursuant thereto; or a State
program.
Additionally, Wyoming proposed in its list of criteria that
prohibit the awarding of an AMLR contract at W.S. 35-11-1209(a)(iv) the
criterion ``delinquent civil penalty issued under SMCRA.'' 30 CFR
874.16 and 875.20, which by reference to the provisions of 30 CFR
773.15(b)(1), implement the provisions of section 518 of SMCRA. This
section of SMCRA includes requirements for OSM civil penalty
assessments. The Director interprets Wyoming's use of the phrase
``delinquent civil penalty issued under SMCRA'' to mean delinquent
civil
[[Page 6539]]
penalties issued under any SMCRA State or Federal program. Using this
interpretation, the Director finds that W.S. 35-11-1209(a)(iv) is in
compliance with 30 CFR 874.16 and 875.20 and is consistent with section
518 of SMCRA. The Director approves this statute.
Finally, Wyoming did not indicate at proposed W.S. 35-11-1209 how
the Division will determine whether a construction contractor or
professional services contractor is ``eligible'' to receive an AMLR
contract. The Federal regulations at 30 CFR 874.16 and 875.20 indicate
that bidder eligibility must be confirmed by OSM's AVS for each
contract to be awarded.
Because proposed W.S. 35-11-1209 does not include provisions for
Wyoming to verify through AVS a contractor's eligibility, the Director
requires Wyoming to revise W.S. 35-11-1209, or otherwise revise its
statute, rules and/or plan to indicate that any construction contractor
or professional services contractor be confirmed through AVS as
eligible to receive an AMLR contract prior to receiving the award.
b. W.S. 35-11-1209(b).--Wyoming also proposed newly created W.S.
35-11-1209(b) to provide that ``ownership and controlling interest,''
as used in W.S. 35-11-1209, means the same as this term means as
defined at 30 CFR Part 773.5. 30 CFR 874.16 and 875.20, by referencing
30 CFR 773.15(b)(1), provide for a review of all reasonably available
information concerning ownership and control links. The Federal
regulations at 30 CFR 773.5 address ownership and control relationships
in the definition of the terms ``owned or controlled'' and ``owns or
controls;'' however, 30 CFR 773.5 does not define ``ownership and
controlling interest.'' The Director interprets W.S. 35-11-1209(b) to
mean that Wyoming's term ``ownership and controlling interest'' has the
same meaning as the Federal terms ``owned or controlled'' and ``owns or
controls'' at 30 CFR 773.5. The Director also interprets Wyoming's
proposed use of the terms ``owned and controlled'' or ``owns or
controls'' at W.S. 35-11-1209(a) to mean the same thing as the
definitions for these terms at 30 CFR 773.5. The Director finds W.S.
35-11-1209(b) to be in compliance with the ownership and control
relationship definitions included at 30 CFR 773.5. Therefore, the
Director approves this statutory provision.
(c) Policy Statement Concerning AVS Contractor Eligibility at W.S.
35-11-1209.--Wyoming provided a policy statement dated April 21, 1995,
that consists of a memorandum prepared by the State's AMLR attorney and
addressed to the administrator of the Division. The policy statement
specifically excludes subcontractors from the requirements at W.S. 35-
11-1209. Wyoming's policy states that any subcontractor would not have
to receive AVS clearance before being allowed to work on an AMLR
contract. There are no Federal counterpart requirements to Wyoming's
proposed policy. However, the preamble for the Federal regulations at
30 CFR 874.16 and 875.20 does not address whether subcontractors must
also clear AVS (May 31, 1994; 59 FR 28136, 28158 and 28164). In the
absence of any Federal requirements concerning subcontractors,
Wyoming's policy is not inconsistent with the Federal regulations at 30
CFR 874.16 and 875.20. If, at any time in the future, OSM decides to
promulgate regulations or an interpretive rule to address
subcontractors, it would notify Wyoming in accordance with 30 CFR Part
884.15(b) of any needed revisions to the Wyoming plan. For this reason,
the Director finds that Wyoming's proposed policy statement issued in
support of W.S. 35-11-1209 concerning subcontractors is in compliance
with the Federal regulations at 30 CFR 874.16 and 875.20. Therefore,
the Director approves the proposed policy statement.
V. Summary and Disposition of Comments
Following are summaries of all substantive written comments on the
proposed amendment that were received by OSM, and OSM's responses to
them.
1. Public Comments
OSM invited public comments on the proposed amendment, but none
were received.
2. Federal Agency Comments
Pursuant to 30 CFR 884.15(a) and 884.14(a)(2), OSM solicited
comments on the proposed amendment from various Federal agencies with
an actual or potential interest in the Wyoming plan (administrative
record Nos. WY-AML-18-10 and -11).
The Bureau of Land Management (BLM), Wyoming State Office,
responded on June 8, 1995, that the degree of involvement by the
subcontractor in the overall project should be considered
(administrative record No. WY-AML-18-12). BLM stated that if the
involvement of the subcontractor is major, the subcontractor should be
subject to the same rules as the contractor. BLM also questioned
whether W.S. 35-11-1209 and Wyoming's policy regarding its
implementation in Wyoming would set up a system whereby a contractor in
violation can have another party bid the project and then subcontract
to circumvent the system.
As discussed in finding No. 2(c) above, the Federal regulations at
30 CFR 874.16 and 875.20 are silent as to whether subcontractors are
required to pass the same AVS checks required for the successful bidder
on an AMLR contract. Because the Federal regulations do not
specifically require subcontractors to meet the eligibility
requirements applied to the successful bidder for an AMLR contract, OSM
cannot require Wyoming to make subcontractors comply with the
requirements of W.S. 35-11-1209. In response to BLM's expressed concern
that Wyoming's policy may allow a contractor who would not normally
pass the AVS check to circumvent the system by becoming a subcontractor
on a specific project, OSM acknowledges that the Federal regulations do
not prevent this type of occurrence, however, OSM expects that these
incidents would be infrequent. If OSM determines that the frequency of
such occurrences is greater than expected, it would, as provided in
finding No. 2(c) above, promulgate regulations or an interpretive rule
to address subcontractors.
The U.S. Army Corps of Engineers responded on June 13, 1995, that
it found the amendment to be satisfactory (administrative record No.
WY-AML-18-13).
By letter dated June 13, 1995, the Mine Safety and Health
Administration (MSHA) stated that the amendment has no apparent impact
upon miners' health and safety (administrative record No. WY-AML-18-
14). MSHA also indicated that its enabling legislation limits its
jurisdiction to specify mining and mining-related activities and does
not extend to state contractor reclamation of abandoned mine properties
nor to the recovering of costs of reclamation.
The U.S. Department of Agriculture, Natural Resources Conservation
Service, responded on June 16, 1995, that it had no comment on the
amendment (administrative record No. WY-AML-18-15).
VI. Director's Decision
Based on the above findings, the Director approves, with certain
exceptions and additional requirements, Wyoming's proposed plan
amendment as submitted on April 21, 1995, and as supplemented with
additional explanatory information on August 29, 1995.
The Director approves, as discussed in finding No. 1, certain
revisions to
[[Page 6540]]
W.S. 35-11-1206 (a) and (b), concerning the placement of liens on
private lands adversely affected by past coal and mineral mining
practices. With the requirement that Wyoming further revise its
statute, rules, and/or plan, the Director does not approve, as
discussed in Finding No. 1, other revisions to W.S. 35-11-1206 (a) and
(b), concerning the use of the cost of reclamation in determining the
amount of liens for reclamation on private land.
With the requirement that Wyoming further revise its statute,
rules, and/or plan, the Director approves, as discussed in finding No.
2(a), W.S. 35-11-1209(a), concerning contractor eligibility.
The Director approves, as discussed in finding No. (2)(b), W.S. 35-
11-1209(b), concerning ownership and control relationships, and finding
No. (2)(c), an April 21, 1995, policy statement for W.S. 35-11-1209,
concerning subcontractors.
In accordance with 30 CFR 884.15(e), the Director is also taking
this opportunity to clarify in the required amendment section at 30 CFR
950.36 that Wyoming must by the date indicated submit to OSM a
reasonable timetable, which is consistent with Wyoming's established
administrative or legislative procedures, for submitting an amendment
to the State reclamation plan.
The Federal regulations at 30 CFR Part 950, codifying decisions
concerning the Wyoming plan, are being amended to implement this
decision. This final rule is being made effective immediately to
expedite the State plan amendment process and to encourage States to
bring their plans into conformity with the Federal standards without
undue delay. Consistency of State and Federal standards is required by
SMCRA.
VII. Procedural Determinations
1. Executive Order 12866
This rule is exempted from review by the Office of Management and
Budget (OMB) under Executive Order 12866 (Regulatory Planning and
Review).
2. Executive Order 12778
The Department of the Interior has conducted the reviews required
by section 2 of Executive Order 12778 (Civil Justice Reform) and has
determined that this rule meets the applicable standards of subsections
(a) and (b) of that section. However, these standards are not
applicable to the actual language of State AMLR plans and revisions
thereof since each such plan is drafted and promulgated by a specific
State, not by OSM. Decisions on proposed State AMLR plans and revisions
thereof submitted by a State are based on a determination of whether
the submittal meets the requirements of Title IV of SMCRA (30 U.S.C.
1231-1243) and the applicable Federal regulations at 30 CFR Parts 884
and 888.
3. National Environmental Policy Act
No environmental impact statement is required for this rule since
agency decisions on proposed State AMLR plans and revisions thereof are
categorically excluded from compliance with the National Environmental
Policy Act (42 U.S.C. 4332) by the Manual of the Department of the
Interior (516 DM 6, appendix, 8, paragraph 8.4B(29)).
4. Paperwork Reduction Act
This rule does not contain information collection requirements that
require approval by OMB under the Paperwork Reduction Act (44 U.S.C.
3507 et seq.).
5. Regulatory Flexibility Act
The Department of the Interior has determined that this rule will
not have a significant economic impact on a substantial number of small
entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.).
The State submittal which is the subject of this rule is based upon
Federal regulations for which an economic analysis was prepared and
certification made that such regulations would not have a significant
economic effect upon a substantial number of small entities.
Accordingly, this rule will ensure that existing requirements
established by SMCRA or previously promulgated by OSM will be
implemented by the State. In making the determination as to whether
this rule would have a significant economic impact, the Department
relied upon the data and assumptions in the analyses for the
corresponding Federal regulations.
List of Subjects in 30 CFR Part 950
Abandoned mine reclamation programs, Intergovernmental relations,
Surface mining, Underground mining.
Dated: February 12, 1996.
Richard J. Seibel,
Regional Director, Western Regional Coordinating Center.
For the reasons set out in the preamble, part 950 of the Code of
Federal Regulations is amended as set forth below:
PART 950--WYOMING
1. The authority citation for part 950 continues to read as
follows:
Authority: 30 U.S.C. 1201 et seq.
2. Section 950.35 is amended by adding paragraph (c) to read as
follows:
Sec. 950.35 Approval of abandoned mine land reclamation plan
amendments.
* * * * *
(c) With the exceptions of Wyoming Statute (W.S.) 35-11-1206(a) to
the extent that it includes the phrases ``cost of reclamation work or
the'' and ``, whichever is less'' and W.S. 35-11-1206(b) to the extent
that it includes the phrase ``, but not exceeding the cost of the
reclamation work,'' the revisions to W.S. 35-11-1206 (a) and (b),
concerning lien authority on private lands, and the addition of newly
created W.S. 35-11-1209 (a) and (b), including the policy statement
dated April 21, 1995, concerning contractor eligibility, as submitted
to OSM on April 21, 1995, and as supplemented with additional
information on August 29, 1995, are approved effective February 21,
1996.
3. Section 950.36 is added to read as follows:
Sec. 950.36 Required abandoned mine land plan amendments.
Pursuant to 30 CFR 884.15, Wyoming is required to submit to OSM by
the date specified a reasonable timetable, which is consistent with
Wyoming's established administrative and legislative procedures, for
submitting an amendment to the State reclamation plan.
(a) By March 22, 1996, Wyoming shall submit a schedule for revising
W.S. 35-11-1206(a) to remove the phrases ``cost of reclamation or the''
and ``, whichever is less'' and revising W.S. 35-11-1206(b) to remove
the phrase ``, but not exceeding the cost of the reclamation work,''.
(b) By March 22, 1996, Wyoming shall submit a schedule for revising
W.S. 1209(a), or otherwise revise its statute, rules and/or plan, to
include:
(1) Notices of violation in the criteria for determining the
eligibility of construction contractors or professional services
contractors awarded an abandoned mine land reclamation contract; and
(2) A requirement that a contractor's eligibility shall be
confirmed using OSM's Applicant/Violator System.
[FR Doc. 96-3820 Filed 2-20-96; 8:45 am]
BILLING CODE 4310-05-M
Complete official Federal Register PDF
FR Doc. 96-3812 Acquisition of Japanese Products and Services
[Federal Register Volume 61, Number 35 (Wednesday, February 21, 1996)]
[Rules and Regulations]
[Page 6577]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-3812]
=======================================================================
-----------------------------------------------------------------------
NATIONAL AERONAUTICS AND SPACE ADMINISTRATION
48 CFR Part 1825
Acquisition of Japanese Products and Services
AGENCY: Office of Procurement, National Aeronautics and Space
Administration (NASA).
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: This rule changes requirements for acquisition by NASA when
Japanese products or services are offered. In negotiations with Japan,
the U.S. Trade Representative has removed NASA from the list of
agencies required to acquire Japanese products and services on a non-
discriminatory basis. This was in response to the inability to reach
agreement with Japanese negotiators on including the Japanese space
agency under a trade agreement.
EFFECTIVE DATE: February 21, 1996.
FOR FURTHER INFORMATION CONTACT:
Mr. Harold Jefferson, (202) 358-0409.
SUPPLEMENTARY INFORMATION:
Impact
NASA certifies that this regulation will not have a significant
economic impact on a substantial number of small entities under
Regulatory Flexibility Act (5 U.S.C. 601 et seq.). This rule does not
impose any reporting or record keeping requirements subject to the
Paperwork Reduction Act.
List of Subjects in 48 CFR Part 1825
Government procurement.
Tom Luedtke,
Deputy Associate Administrator for Procurement.
Accordingly, 48 CFR part 1825 is amended as follows.
PART 1825--[FOREIGN ACQUISITION]
1. The authority citation for 48 CFR part 1825 continues to read as
follows:
Authority: 42 U.S.C. 2473(c)(1).
2. Section 1825.401 is added to read as follows:
1825.401 Definitions.
For acquisition by NASA, the definition of ``designated country''
in FAR 25.401 excludes ``Japan.'' NASA is not obligated to provide non-
discriminatory treatment to Japanese products or services under the
World Trade Organizations Government Procurement Agreement (GPA)
effective January 1, 1996.
[FR Doc. 96-3812 Filed 2-20-96; 8:45 am]
BILLING CODE 7510-01-M
Complete official Federal Register PDF
FR Doc. 96-3790 Approval and Promulgation of Implementation Plans Florida: Title V, Section 507, Small Business Stationary Source Technical and Environmental Compliance Assistance Program
[Federal Register Volume 61, Number 35 (Wednesday, February 21, 1996)]
[Rules and Regulations]
[Pages 6543-6545]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-3790]
=======================================================================
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[FL-59-1-6928a; FRL-5400-7]
Approval and Promulgation of Implementation Plans Florida: Title
V, Section 507, Small Business Stationary Source Technical and
Environmental Compliance Assistance Program
AGENCY: Environmental Protection Agency (EPA).
ACTION: Direct final rule.
-----------------------------------------------------------------------
SUMMARY: EPA is approving revisions to the State Implementation Plan
(SIP) submitted by the State of Florida through the Florida Department
of Environmental Protection (FDEP) for the purpose of including the
Small Business Stationary Source Technical and Environmental Compliance
Assistance Program rules in the Florida Administrative Code, Chapters
17-202.100 through 17.202.400. This implementation plan was submitted
by the State on August 12, 1994.
DATES: This action is effective April 22, 1996 unless notice is
received March 22, 1996 that someone wishes to submit adverse or
critical comments. If the effective date is delayed, timely notice will
be published in the Federal Register.
ADDRESSES: Written comments should be addressed to: Ms. Kimberly
Bingham, Regulatory Planning and Development Section, Air Programs
Branch, Air, Pesticides & Toxics Management Division, Region 4
Environmental Protection Agency, 345 Courtland Street, NE, Atlanta,
Georgia 30365.
Copies of the material submitted by the State of Georgia may be
examined during normal business hours at the following locations:
Air and Radiation Docket and Information Center (Air Docket 6102), U.S.
Environmental Protection Agency, 401 M Street, SW., Washington, DC
20460.
Environmental Protection Agency, Region 4, Air Programs Branch, 345
Courtland Street, NE., Atlanta, Georgia 30365.
Florida Department of Environmental Protection, Twin Towers Office
Building, 2600 Blair Stone Road, Tallahassee, Florida 32399-2400.
FOR FURTHER INFORMATION CONTACT: Ms. Kimberly Bingham, Regulatory
Planning and Development Section, Air Programs Branch, Air, Pesticides
& Toxics Management Division, Region 4 Environmental Protection Agency,
345 Courtland Street, NE., Atlanta, Georgia
[[Page 6544]]
30365. The telephone number is 404/347-3555 x4195.
SUPPLEMENTARY INFORMATION: Implementation of the CAA will require small
businesses to comply with specific regulations in order for areas to
attain and maintain the national ambient air quality standards (NAAQS)
and reduce the emission of air toxics. 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 EPA to oversee the small business assistance program 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 and the EPA
guidance document Guidelines for the Implementation of Section 507 of
the 1990 Clean Air Act Amendments. 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. The plan
must also determine the eligibility of small business stationary
sources for assistance in the PROGRAM. The plan includes the duties,
funding and schedule of implementation for the three PROGRAM
components.
Section 507 (a) and (e) of the CAA set forth requirements the State
must meet to have an approvable PROGRAM. The State of Florida has
addressed these requirements and has established a PROGRAM which was
approved by EPA on February 14, 1995 (See 60 FR 6306). As a result of
the preceding requirements, the State of Florida through the FDEP on
August 12, 1994, submitted a revision to include rules for the PROGRAM
in the Florida Administrative Code, Chapters 17-202.100 through
17.202.400. The following is a brief description of what each chapter
addresses:
1. Chapter 17-202.100 establishes procedures for notifying small
businesses of their rights and assures an opportunity for public
comment on any petition filed by any air pollution source seeking
inclusion in the small business assistance program.
2. Chapter 17-202.200 identifies the definition of the words and
phrases used in Chapter 17.202.
3. Chapter 17-202.300 outlines the procedures for notifying small
businesses of the rights and obligations to federal and state
requirements.
4. Chapter 17-202.400 establishes the procedures that will be used
by the Department to provide public notice and comments on actions
taken by the state.
Final Action
In this action, EPA is approving the SIP revision to include the
Small Business Stationary Source Technical and Environmental Compliance
Assistance program in the Florida Administrative Code, Chapter 17-202,
that was submitted by the State of Florida through the Department of
Environmental Protection. 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 this Federal Register publication, EPA is proposing to
approve the SIP revision should adverse or critical comments be filed.
This action will be effective April 22, 1996 in the Federal Register,
unless notice is received by March 22, 1996 that adverse or critical
comments are received.
If EPA receives such comments, this action will be withdrawn before
the effective date by publishing a subsequent document that will
withdraw the final action. All public comments received will then be
addressed in a subsequent final rule based on the proposed rule
published with this action. 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 22, 1996.
Under section 307(b)(1) of the CAA, 42 U.S.C. 7607 (b)(1),
petitions for judicial review of this action must be filed in the
United States Court of Appeals for the appropriate circuit by April 22,
1996. Filing a petition for reconsideration by the Administrator of
this final rule does not affect the finality of this rule for purposes
of judicial review nor does it extend the time within which a petition
for judicial review may be filed, and shall not postpone the
effectiveness of such rule or action. This action may not be challenged
later in proceedings to enforce its requirements. (See section
307(b)(2) of the CAA, 42 U.S.C. 7607(b)(2).
This action has been classified as a Table 3 action for signature
by the Regional Administrator under the procedures published in the
Federal Register on January 19, 1989 (54 FR 2214-2225), as revised by a
July 10, 1995 memorandum from Mary Nichols, Assistant Administrator for
Air and Radiation. The Office of Management and Budget (OMB) has
exempted this regulatory action from E.O. 12866 review.
By today's action, the EPA is approving a State program created for
the purpose of assisting small business stationary sources in complying
with existing statutory and regulatory requirements. The program being
approved today does not impose any new regulatory burden on small
business stationary sources; it is a program under which small business
stationary sources 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.
SIP approvals under 110 and subchapter I, part D of the CAA do not
create any new requirements, but simply approve requirements that the
State is already imposing. Therefore, because the federal SIP-approval
does not impose any new requirements, I certify that it does not have a
significant impact on any small entities affected. Moreover, due to the
nature of the federal-state relationship under the CAA, preparation of
a regulatory flexibility analysis would constitute federal inquiry into
the economic reasonableness of state action. The CAA forbids EPA to
base its actions concerning SIPs on such grounds. Union Electric Co.
versus Environmental Protection Agency, 427 U.S. 246, 256-66 (S.Ct.
1976); 42 U.S.C. 7410(a)(2) and 7410(k).
Nothing in this action shall be construed as permitting or allowing
or establishing a precedent for any future request for a 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.
Title II of the Unfunded Mandates Reform Act of 1995 (``UMRA''),
P.L. 104-4, establishes requirements for the Federal agencies to assess
the effects of their regulatory actions on State, local, and tribal
governments and the private sector. Under section 202 of the UMRA, EPA
generally must prepare a written
[[Page 6545]]
statement, including a cost-benefit analysis, for proposed and final
rules with ``Federal mandates'' that may result in expenditures to
State, local and tribal governments, in the aggregate, or to the
private sector, of $100 million or more in any one year. When a written
statement is needed for an EPA rule, section 205 of the UMRA generally
requires EPA to identify and consider a reasonable number of regulatory
alternatives and adopt the least costly, most cost-effective or least
burdensome alternative that achieves the objectives of the rule. The
provisions of section 205 do not apply when they are inconsistent with
applicable law. Moreover, section 205 allows EPA to adopt an
alternative other than the least costly, most cost-effective or least
burdensome alternative if the Administrator publishes with the final
rule an explanation why that alternative was not adopted. Before EPA
establishes any regulatory requirements that may significantly or
uniquely affect small governments, including tribal governments, it
must have developed under section 203 of the UMRA a small government
agency plan. The plan must provide for notifying potentially affected
small governments, giving them meaningful and timely input in the
development of EPA regulatory proposals with significant federal
intergovernmental mandates, and informing, educating, and advising them
on compliance with the regulatory requirements.
Through submission of the SIP or plan revisions approved in this
action, the State and any affected local or tribal governments have
elected to adopt the program provided for under section 175A of the
Clean Air Act. The submission approved in this action may bind State,
local and tribal governments to perform certain actions and also may
ultimately lead to the private sector being required to perform certain
duties. To the extent that the submission being approved by this action
will impose or lead to the imposition of any mandate upon the State,
local or tribal governments either as the owner or operator of a source
or as a regulator, or would impose or lead to the imposition of any
mandate upon the private sector, EPA's action will impose no new
requirements; such sources are already subject to these requirements
under State law. Accordingly, no additional costs to State, local, or
tribal governments, or to the private sector, result from this action.
The EPA has determined that this rule does not contain a Federal
mandate that may result in expenditures of $100 million or more for
State, local, or tribal governments in the aggregate, or on the private
sector, in any one year. Thus, today's rule is not subject to the
requirements of sections 202 and 205 of the UMRA EPA has determined
that this rule contains no regulatory requirements that might
significantly or uniquely affect small governments.
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Incorporation by
reference, Intergovernmental relations.
Dated: December 11, 1995.
Patrick M. Tobin,
Acting Regional Administrator.
Chapter I, title 40, Code of Federal Regulations, is amended as
follows:
PART 52--[AMENDED]
1. The authority citation for part 52 continues to read as follows:
Authority: 42.U.S.C. 7401-7671q.
Subpart K--Florida
2. Section 52.520 is amended by adding paragraph (c)(92) to read as
follows:
Sec. 52.520 Identification of plan.
* * * * *
(c) * * *
(92) The Florida Department of Environmental Protection has
submitted revisions to the Florida State Implementation Plan on August
12, 1994. These revisions address including the Small Business
Stationary Source Technical and Environmental Program in the Florida
Administrative Code, Chapter 17-202.
(i) Incorporation by reference.
(A) Chapter 17-202, Small Business Stationary Source Technical and
Environmental Compliance Assistance Program adopted on June 30, 1994.
(ii) Additional material. None.
[FR Doc. 96-3790 Filed 2-20-96; 8:45 am]
BILLING CODE 6560-50-P
Complete official Federal Register PDF
FR Doc. 96-3789 Approval and Promulgation of Implementation Plans (Minnesota)
[Federal Register Volume 61, Number 35 (Wednesday, February 21, 1996)]
[Rules and Regulations]
[Pages 6547-6550]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-3789]
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[MN28-02-7253; FRL-5402-2]
Approval and Promulgation of Implementation Plans (Minnesota)
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The United States Environmental Protection Agency (USEPA) is
approving a year-round oxygenated fuels program as a revision to
Minnesota's State Implementation Plan (SIP) for carbon monoxide (CO).
The use of oxygenated fuels can reduce emissions of CO from vehicles,
thereby reducing the threat to human health posed by CO, which can
contribute to heart and lung disease and reduce the concentration of
oxygen in the blood stream. Minnesota already has an approved SIP which
requires the use of oxygenated fuels during the winter; the extension
of the oxygenated fuels program beyond the winter months will serve as
the contingency measure required for nonattainment plans under section
172(c)(9) of the Clean Air Act (the Act). USEPA's action is based upon
a SIP revision request which was submitted by the State to satisfy the
requirements of the Act.
DATES: This final rule is effective on March 22, 1996.
ADDRESSES: Copies of the SIP revision request, public comments on the
rulemaking, and other materials relating to this rulemaking are
available for inspection at the following address: (It is recommended
that you telephone Alexis Cain at (312) 886-7018 before visiting the
Region 5 Office.) United States Environmental Protection Agency, Region
5, Air and Radiation Division, 77 West Jackson Boulevard (AT-18J),
Chicago, Illinois 60604.
FOR FURTHER INFORMATION CONTACT: Alexis Cain, Air Toxics and Radiation
Branch, Regulation Development Section (AT-18J), United States
Environmental Protection Agency, Region 5, Chicago, Illinois 60604,
(312) 886-7018.
SUPPLEMENTARY INFORMATION:
I. Summary of State Submittal
On November 12, 1993, the Commissioner of the Minnesota Pollution
Control Agency submitted elements of a contingency measure for the
carbon monoxide nonattainment area in the Twin-Cities area of the
State. This area includes the following counties which comprise the CO
control area: Anoka, Carver, Chisago, Dakota, Hennepin, Isanti, Ramsey,
Scott, Washington, and Wright.1 The State's
[[Page 6548]]
CO contingency plan consists of an expansion of the State's existing
wintertime oxygenated gasoline program to a year-round program
beginning on October 31, 1995. The program requires gasoline sold in
the control area of the Twin Cities to contain no less than 2.0 percent
oxygen and average 2.7 percent oxygen during the control period. On
January 25, 1994, the USEPA issued a letter stating that the submittal
was complete except for two items: the public hearing process and a
report of the results of a study regarding the year-round use of
ethanol as the oxygenate and its effect on summer-time ozone
concentrations. The results of the public hearing process were received
in a letter from the Commissioner of the MPCA on January 26, 1994, and
contained the required information demonstrating that the public
process was carried out. The letter included a report prepared by an
environmental consultant regarding the year-round use of ethanol in the
State. USEPA requested this report because of the potential for
increased evaporative emissions of hydrocarbons resulting from splash
blending ethanol in gasoline. The emission of hydrocarbons during
summertime conditions results in the formation of tropospheric ambient
ozone.
\1\ St. Louis County (in the Duluth-Superior, Wisconsin MSA) was
redesignated to attainment for carbon monoxide on April 14, 1994.
The maintenance plan contains a ``park and ride'' measure to reduce
vehicle miles traveled in the event maintenance cannot be assured.
If the first choice measure (park and ride) does not succeed in
reducing the CO concentrations the State will consider the
implementation of an oxygenated gasoline program.
---------------------------------------------------------------------------
The State submittal was submitted to satisfy the provisions under
section 172(c)(9) of the Clean Air Act (Act), which requires
contingency measures in moderate CO nonattainment areas with design
values of 12.7 parts per million or less. These contingency measures
must be implemented in the event the area fails to attain the national
standard by December 31, 1995. Contingency measures, once triggered,
are to take effect automatically, without further rulemaking action by
the State or the Administrator. States must show that their contingency
measures can be implemented with minimal further action on their part
and with no additional rulemaking actions.
A proposed rulemaking was published in the June 1, 1995 Federal
Register (60 FR 28557), which proposed approval of the CO contingency
SIP, but raised invited public comment on three issues: potential
increases in ozone concentrations as a result of the use of oxygenated
fuels in the summer months; potential problems in enforcing the program
in the event that a possible future increase in the price of ethanol
(which is the oxygenate in use in Minnesota) gives fuel retailers and/
or blenders an incentive not to comply with the program, and the need
to define an endpoint for reporting purposes in the oxygenate program.
II. Public Comment/USEPA Response
USEPA received comments on the proposed rulemaking from KOCH
Refining and the Minnesota Department of Agriculture.
KOCH Refining Comments and USEPA Response
KOCH requested that the USEPA disapprove the proposed contingency
measure because:
(1) There is no need for summertime CO reductions, based on current
and historical summertime CO ambient monitoring;
(2) The lack of an end point for reporting purposes will lead to
unnecessary regulatory complications;
(3) There is great potential for increases in ambient ozone
concentrations due to use of year-round oxygenated fuel; and
(4) There is great potential for adverse impacts in price and
availability of gasoline in the event of reduction or curtailment of
federal or state subsidies for ethanol production and blending.
Comment 1: There is no need for summer time CO reductions, based on
current and historical summertime CO ambient monitoring.
While there has not been a violation of the CO air quality standard
since 1991, several of the exceedances which contributed to violations
between 1987 and 1991 were registered outside of the current four-month
program period. Moreover, the most recent exceedance of the standard
occurred during the summer of 1995. Therefore, the USEPA believes that
the extension of the program beyond the winter months, which seems to
have been effective in reducing ambient CO concentrations, will be
useful in providing a margin of protection against exceedances outside
of the current program period.
Comment 2: The lack of an end point for reporting purposes will
lead to unnecessary regulatory complications.
In the proposal action, USEPA noted that while the oxygenated
gasoline program requires reports to be submitted by registered
blenders of oxygenated fuels at the end of the control period, the end
of the control period has not been defined for the year-round program.
The State has been made aware of this minor technical problem, and is
exploring means to correct it. The USEPA believes that this problem can
be resolved without difficulty, and that it is not an adequate reason
to delay final rulemaking.
Comment 3: There is great potential for increases in ambient ozone
concentrations due to use of year-round oxygenated fuel.
The addition of ethanol to gasoline raises the vapor pressure of
the mixture to a level higher than that of either of the two
components. The USEPA allows a one pound per square inch (psi) waiver
for gasolines containing up to 10 volume percent ethanol. So, for
example, the vapor pressure of gasoline sold during summer months is
limited to nine psi. However, a gasoline blend of 10 volume percent
ethanol may have a vapor pressure of 10 psi. This increase in vapor
pressure may lead to higher evaporative emissions of volatile organic
compounds (VOCs), which are precursors of ozone, potentially increasing
the formation of ozone.
While the use of oxygenated fuels during the summer (the ozone
season) may lead to increases in ambient ozone concentrations, the
USEPA has no basis for disapproving the CO contingency SIP request
since there is no information available that indicates that it will
lead to violations of the ozone NAAQS. Section 110(l) of the Act
prohibits USEPA from approving a SIP if it would interfere with any
applicable requirement concerning attainment or reasonable further
progress, or any other applicable requirement of the Act. Since
Minnesota has no nonattainment areas for ozone, reasonable further
progress is not an issue; the only concern is whether use of oxygenated
fuels jeopardizes the attainment status of the Twin Cities.
KOCH argues that a possible tightening of the ozone NAAQS could
make it more difficult to avoid a violation. However, USEPA cannot base
its current rulemaking on speculation about future changes in the
standard. Koch also argues that the possibility of hotter summers in
the future, which would be more conducive to ozone formation, makes it
risky to implement the oxygenated fuels program during the summer.
However, USEPA concludes that there is no available evidence that use
of oxygenated fuels will lead to violation of the standard in the Twin
Cities. Air quality data show no exceedances or violations of the ozone
standard in the last four years, with the last exceedance recorded in
1990. Moreover, there is some dispute over the extent to which ethanol
will increase ozone formation. A study contracted by MPCA (discussed
below) found that ethanol might slightly reduce ozone formation; while
USEPA disputes this study's methodology and still believes that some
ozone increases are possible as a result of the oxygenated
[[Page 6549]]
fuels program, the magnitude of these increase in the Twin Cities
cannot be determined. Furthermore, ethanol blends are already in use
year-round in Minnesota, with 50 percent or greater market penetration
during the past 3 ozone seasons, without causing an exceedance of the
ozone standard. An increase from more than 50 percent use of ethanol
blends to nearly 100 percent is not likely to lead to a significant
increase in ozone.
The Minnesota Pollution Control Agency submitted a contractor's
report which suggested that the use of ethanol would not cause
violations of the ozone standard.2 The USEPA reviewed the report
and found that it was flawed in a number of areas including:
uncertainty on how to take into account VOC reactivity; incorrect
speciation profiles; inability to replicate exhaust VOC benefit of the
ethanol blends; lack of evidence to support the contention of an
enrichment benefit for ethanol, and the use of excessively high highway
speeds in the modelling. Despite USEPA's criticism of this study, no
new information was submitted by the consultant or the State. The
USEPA's comments on this report remain unchanged. However, KOCH did not
provide any additional studies which demonstrate that there will be
ozone violations as a result of summertime ethanol use.
\2\ Systems Applications International, Ozone Impact of Year-
Round Oxy-Fuel Program in Minnesota, San Rafael, CA, January 10,
1994.
---------------------------------------------------------------------------
Comment 4: There is great potential for adverse impacts in price
and availability of gasoline in the event of reduction or curtailment
of federal or state subsidies for ethanol production and blending.
Koch expressed concern that federal codification of this existing
program will reduce the State's ability to respond flexibly to price
increases and disruptions in availability. KOCH believes that a
hypothetical reduction or elimination of federal and State ethanol
subsidies, which amount to as high as 89 cents per gallon of pure
ethanol, will not lead to ``cheating'' as suggested in the USEPA
proposal. Instead, Koch is concerned that limited oxygenate
availability would lead to a tight supply of blended specification
gasoline and price increases. Koch expects the potential for shortages
to increase in 1997 when the oxygenated gasoline program area is
expected to be expanded to cover the entire State.
The State does not expect or anticipate a change in the subsidy
program associated with the use of ethanol. If there is a change in
State and/or Federal subsidies, the USEPA believes the state does have
the flexibility to discontinue the measure, assuming that no violation
of the CO NAAQS occur. The USEPA would retain the contingency measure
as a Section 172(c) requirement, however, which the State would need to
implement if the area fails to attain the CO standard by the attainment
date. If the area fails to attain and the State shuts the program off,
the USEPA has the authority to require the implementation or continued
operation of the program. If the area is in attainment (through a
redesignation process) and the State wishes to eliminate the program as
even a contingency measure, the State would need to identify a
substitute contingency program.
Minnesota Department of Agriculture Comments and USEPA Response
The Minnesota Department of Agriculture objected to statements in
the proposed rulemaking that the year-round use of ethanol could lead
to increased ozone pollution. The Department of Agriculture argues that
air quality studies have shown that increased ozone will not result.
As stated above, USEPA does not believe that this issue has been
resolved conclusively. While it is possible to make a case that
increased ozone concentrations may result from summertime use of
oxygenated gasoline, it cannot be shown that violations of the NAAQS
will result. Thus, USEPA is approving the program.
III. Rulemaking Action
The USEPA is approving the Minnesota year-round oxygenated fuels
program as the CO contingency measure required for nonattainment plans
under section 172(c)(9) of the Clean Air Act.
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.
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.
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.
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 22, 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).)
Note--Incorporation by reference of the State Implementation
Plan for the State of Minnesota was approved by the Director of the
Federal Register on July 1, 1982.
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Carbon monoxide,
Incorporation by reference, Intergovernmental relations, Ozone,
Volatile organic compounds.
Dated: November 6, 1995.
David A. Ullrich,
Acting Regional Administrator.
40 CFR part 52 is amended as follows:
PART 52--[AMENDED]
1. The authority citation for part 52 continues to read as follows:
Authority: 42 U.S.C. 7401--7671q.
Subpart Y--[Amended]
2. Section 52.1220 is amended by adding paragraph (c)(43) to read
as follows:
Sec. 52.1220 Identification of plan.
* * * * *
(c) * * *
(43) On November 12, 1993, the State of Minnesota submitted a
contingency plan to control the emissions of carbon monoxide from
mobile sources by use of oxygenated gasoline on a year-round basis. The
submittal of this program satisfies the provisions under section
172(c)(9) and 172(b) of the Clean Air Act as amended.
[[Page 6550]]
(i) Incorporation by reference.
(A) Laws of Minnesota for 1992, Chapter 575, section 29(b), enacted
by the legislature and signed into law on April 29, 1992.
[FR Doc. 96-3789 Filed 2-20-96; 8:45 am]
BILLING CODE 6560-50-P
Complete official Federal Register PDF
FR Doc. 96-3788 Approval and Promulgation of State Implementation Plan; Michigan; Site-Specific SIP Revision for the Enamalum Corporation
[Federal Register Volume 61, Number 35 (Wednesday, February 21, 1996)]
[Rules and Regulations]
[Pages 6545-6547]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-3788]
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[MI37-01-6713a; FRL-5422-5]
Approval and Promulgation of State Implementation Plan; Michigan;
Site-Specific SIP Revision for the Enamalum Corporation
AGENCY: Environmental Protection Agency (EPA).
ACTION: Direct final rule.
-----------------------------------------------------------------------
SUMMARY: The EPA approves a revision to the Michigan State
Implementation Plan (SIP) for ozone that was submitted on August 26,
1994 by the State of Michigan. This revision is a site-specific SIP
revision that determines the appropriate reasonably available control
technology (RACT) level for volatile organic compound (VOC) emissions
from the Enamalum Corporation Novi, Michigan facility. This approval of
the site-specific SIP revision allows for a limit higher than that
found in the control technology guidance (CTG) document for this source
category. Approval of this site-specific SIP revision is based upon the
argument that the Enamalum Corporation facility cannot afford the
controls normally required by the State's RACT rule. In the proposed
rules section of this Federal Register, the EPA is proposing approval
of, and soliciting comments on, this requested SIP revision. If adverse
comments are received on this action, the EPA will withdraw this final
rule and address the comments received in response to this action in a
final rule on the related proposed rule, which is being published in
the proposed rules section of this Federal Register. A second public
comment period will not be held. Parties interested in commenting on
this action should do so at this time. This approval makes federally
enforceable the State's consent order that has been incorporated by
reference.
DATES: This ``direct final'' is effective on April 22, 1996, unless EPA
receives adverse or critical comments by March 22, 1996. If the
effective date is delayed, timely notice will be published in the
Federal Register.
ADDRESSES: Written comments should be sent to: Carlton T. Nash, Chief,
Regulation Development Section, Air Programs Branch (AR-18J), U.S.
Environmental Protection Agency, 77 West Jackson Boulevard, Chicago,
Illinois 60604.
Copies of the proposed SIP revision and EPA's analysis are
available for inspection at the U.S. Environmental Protection Agency,
Region 5, Air and Radiation Division, 77 West Jackson Boulevard,
Chicago, Illinois 60604. (Please telephone Douglas Aburano at (312)
353-6960 before visiting the Region 5 Office.)
FOR FURTHER INFORMATION CONTACT: Douglas Aburano, Environmental
Engineer, Regulation Development Section, Air Programs Branch (AR-18J),
U.S. Environmental Protection Agency, Region 5, Chicago, Illinois
60604, (312) 353-6960.
SUPPLEMENTARY INFORMATION:
I. Background
The Enamalum Corporation owns a facility located in Novi, Michigan
that
[[Page 6546]]
performs metal coating operations. Because this facility is located in
what was the Detroit-Ann Arbor moderate ozone nonattainment area and
because its VOC emissions exceed the applicability cutpoint found in
Michigan's RACT rule for this source category (R 336.621 Emission of
volatile organic compounds from existing metallic surface coating lines
or ``Rule 621''), it is subject to the RACT requirements for this
source category. The State of Michigan has adopted the requirements
found in EPA's CTG for this source category (``Control of Volatile
Organic Emissions from Existing Stationary Sources Volume VI: Surface
coating of Miscellaneous Metal Parts and Products'') and the State's
Rule 621 has been approved into the federally enforceable Michigan SIP.
The EPA issued CTG requires the prescriptive coating limit of 3.5
pounds of VOC per gallon of coating, minus water, as applied.
Michigan's Rule 621 reflects this requirement.
The State of Michigan issued a consent order, Stipulation for Entry
of Final Order By Consent SIP No. 6-1994, to the Enamalum Corporation
that allows this facility to exceed the VOC emission limit established
in Michigan's Rule 621. Specifically, the consent order allows the
facility to use coatings with a 6.5 pounds of VOC per gallon of coating
(minus water) as applied, limit.
The State of Michigan, on behalf of the Enamalum Corporation, has
submitted to EPA a site-specific SIP revision requesting that the
State's consent order now be approved into the Michigan SIP.
II. Evaluation of State Submittal
Michigan submitted this site-specific SIP revision to the EPA on
August 26, 1994 under the signature of the Governor's designee, Roland
Harmes, Director of the former Michigan Department of Natural Resources
(now called the Michigan Department of Environmental Quality, but for
purposes of this document the abbreviation ``MDNR'' will be used). The
EPA found this rule to be complete in a letter to Roland Harmes dated
November 8, 1994. The MDNR followed the required legal procedures for
adopting this rule which are prerequisites for EPA to consider
including this rule in Michigan's federally enforceable ozone SIP. A
public comment period on this rule was open from March 25, 1994 through
April 26, 1994, and a public hearing for this rule was held on April
26, 1994.
The MDNR has submitted for approval into the federally enforceable
SIP the consent order that it has issued for the Enamalum Corporation's
Novi facility. The basis for arguing that this site-specific SIP
revision should be approved into the SIP, is that this facility cannot
reasonably afford the controls required by Michigan's Rule 621.
A number of controls have been considered by the Enamalum
Corporation and none have been found to be considered reasonable and
have been eliminated as potential RACT options.
A. Process Description
The Enamalum Corporation applies a high performance architectural
coating, Kynar 500, to aluminum extrusions used on commercial,
storefront, and high-rise buildings. The Kynar 500 coating emits, on
average, 6.1 pounds of VOC per gallon of coating when applied. This
coating is being used because it meets the American Architectural
Manufacturer's Association (AAMA) specification 605.2-1985 as a high
performance architectural coating. Few other coatings are able to meet
both this AAMA standard and the VOC RACT limit.
B. Control Scenario I--Powder Coatings
Powder coatings are currently available as substitutes for the
liquid Kynar 500 coating. These powder coatings are able to meet both
the AAMA standard and the Michigan VOC RACT limit but are not
considered reasonable in terms of cost for the Enamalum Corporation.
The Enamalum Corporation is currently using powder coatings on some
of its products but has not been able to use these coatings in a cost-
effective manner on their outdoor products that will be exposed to
extreme environmental conditions. The Enamalum Corporation has found
that the amount of powder coating needed to produce a desirable product
would increase the cost of the product to such a degree that their
customers would no longer purchase their product. The cost of coating
more than doubles when powder coatings are used in place of the liquid
Kynar 500 coating. Also, the company has provided information
indicating that the cost of powder coatings as means of a VOC control
is beyond what would normally be considered RACT on a dollars per ton
of VOC controlled basis. For these reasons, the use of powder coatings
has been eliminated as a RACT option on basis of economic
reasonability.
C. Add-On Incineration
The use of an add-on incinerator, like the use of powder coating,
is considered to be a technically feasible way to control the emissions
of VOCs from this source. However, because of economic considerations,
it has also been eliminated as a RACT option.
Add-on incineration generally is considered to be economically
reasonable on a dollars per ton of VOC reduced basis. However, MDNR was
found that the expense of an incinerator is not affordable for this
specific source.
The Enamalum Corporation has submitted information demonstrating
that the net present value of the company after purchasing and
operating an incinerator would be less than the net present value of
the company if the facility were to shut down. When a company is able
to make this demonstration for a control technique, this control
technique is considered to be unaffordable by that company.
III. Final Rulemaking Action
The EPA approves Michigan's site-specific SIP revision, thereby
making this consent order federally enforceable.
Because EPA considers this action noncontroversial and routine, we
are approving it without prior proposal. This action will become
effective on April 22, 1996. However, if we receive adverse comments by
March 22, 1996, EPA will publish a document that withdraws this action.
IV. Miscellaneous
A. Applicability to Future SIP Decisions
Nothing in this action should be construed as permitting, allowing
or establishing a precedent for any future request for revision to any
SIP. The EPA 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.
B. Executive Order 12866
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), as revised by a July
10, 1995 memorandum from Mary Nichols, Assistant Administrator for Air
and Radiation. The Office of Management and Budget has exempted this
regulatory action from E.O. 12866 review.
C. Regulatory Flexibility
Under the Regulatory Flexibility Act, 5 U.S.C. 600 et seq., EPA
must prepare a regulatory flexibility analysis assessing the impact of
any proposed or final rule on small entities (5 U.S.C. 603 and 604).
Alternatively, EPA may certify
[[Page 6547]]
that the rule will not have a significant impact on a substantial
number of small entities. Small entities include small businesses,
small not-for-profit enterprises, and government entities with
jurisdiction over populations of less than 50,000.
This approval does not create any new requirements. Therefore, I
certify that this action does not have a significant impact on any
small entities affected. Moreover, due to the nature of the Federal-
State relationship under the Act, preparation of the regulatory
flexibility analysis would constitute Federal inquiry into the economic
reasonableness of the State action. The Act forbids EPA to base its
actions concerning SIPs on such grounds. Union Electric Co. v. U.S.
EPA, 427 U.S. 246, 256-66 (1976).
D. Unfunded Mandates
Under section 202 of the Unfunded Mandates Reform Act of 1995
(``Unfunded Mandates Act''), signed into law on March 22, 1995, the EPA
must prepare a budgetary impact statement to accompany any proposed or
final rule that includes a Federal mandate that may result in estimated
costs to State, local, or tribal governments in the aggregate; or to
the private sector, of $100 million or more. Under Section 205, the EPA
must select the most cost-effective and least burdensome alternative
that achieves the objectives of the rule and is consistent with
statutory requirements. Section 203 requires the EPA to establish a
plan for informing and advising any small governments that may be
significantly or uniquely impacted by the rule.
The EPA has determined that the approval action promulgated today
does not include a Federal mandate that may result in estimated costs
of $100 million or more to either State, local, or tribal governments
in the aggregate, or to the private sector.
This Federal action approves pre-existing requirements under State
or local law, and imposes no new Federal requirements. Accordingly, no
additional costs to State, local, or tribal governments, or the private
sector, result from this action.
E. Petitions for Judicial Review
Under section 307(b)(1) of the Act, petitions for judicial review
of this action must be filed in the United States Court of Appeals for
the appropriate circuit by April 22, 1996. Filing a petition for
reconsideration by the Administrator of this final rule does not affect
the finality of this rule for the purposes of judicial review, nor does
it extend the time within which a petition for judicial review may be
filed and shall not postpone the effectiveness of such rule or action.
This action may not be challenged later in proceedings to enforce its
requirements (see Section 307(b)(2)).
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Hydrocarbons,
Incorporation by reference, Intergovernmental relations, Ozone,
Reporting and recordkeeping requirements.
Dated: February 2, 1996.
Michelle D. Jordan,
Acting 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 X--Michigan
2. Section 52.1170 is amended by adding paragraph (c)(103) to read
as follows:
Sec. 52.1170 Identification of Plan.
* * * * *
(c) * * *
(103) On August 26, 1994 Michigan submitted a site-specific SIP
revision in the form of a consent order for incorporation into the
federally enforceable ozone SIP. This consent order determines
Reasonably Available Control Technology (RACT) specifically for the
Enamalum Corporation Novi, Michigan facility for the emission of
volatile organic compounds (VOCs).
(i) Incorporation by reference. The following Michigan Stipulation
for Entry of Final Order By Consent.
(A) State of Michigan, Department of Natural Resources, Stipulation
for Entry of Final Order By Consent No. 6-1994 which was adopted by the
State on June 27, 1994.
[FR Doc. 96-3788 Filed 2-20-96; 8:45 am]
BILLING CODE 6560-50-P
Complete official Federal Register PDF
FR Doc. 96-3779 Western Pacific Crustacean Fisheries; 1996 Initial Quota
[Federal Register Volume 61, Number 35 (Wednesday, February 21, 1996)]
[Rules and Regulations]
[Pages 6577-6578]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-3779]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 681
[Docket No. 960212026-6026-01; I.D. 020296A]
RIN 0648-XX44
Western Pacific Crustacean Fisheries; 1996 Initial Quota
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Initial quota for crustaceans for 1996.
-----------------------------------------------------------------------
SUMMARY: NMFS announces a 1996 initial quota of 143,863 lobsters for
the Northwestern Hawaiian Islands (NWHI) crustacean fishery. The quota
was calculated according to the formula in Amendment 7 to the Fishery
Management Plan for the Crustacean Fisheries of the Western Pacific
Region (FMP). The final quota for the 1996 fishing year, which begins
July 1, 1996, will be announced after the first month of fishing.
EFFECTIVE DATE: Effective July 1, 1996.
ADDRESSES: Copies of Amendment 7 and the associated background material
for determining the quota may be obtained from Ms. Kitty Simonds,
Executive Director, Western Pacific Fishery Management Council
(Council), 1164 Bishop Street, Suite 1405, Honolulu, HI 96813.
FOR FURTHER INFORMATION CONTACT: Mr. Svein Fougner, 310-980-4034; Mr.
Alvin Z. Katekaru, 808-973-2985; or Ms. Kitty Simonds, 808-522-8220.
SUPPLEMENTARY INFORMATION: The crustacean fisheries of NWHI are managed
by the Secretary of Commerce (Secretary) according to the FMP, which
was prepared by the Council under the authority of the Magnuson Fishery
Conservation and Management Act. Regulations affecting the U.S. fishery
are at 50 CFR part 681.
[[Page 6578]]
The annual quota for the crustacean fishery is announced in two
steps. First, based on previous years' fishery data, sampling during
research cruises, and other available data, the Director, Southwest
Region, NMFS (Regional Director) determines an initial quota, which is
announced in the Federal Register by NMFS. A population model by which
the quota is determined is described in Amendment 7 to the FMP. The
final quota for the year is then determined based on the initial quota,
adjusted after consideration of actual commercial fisheries data
collected during the first month of fishing. These actual catch and
effort data, in conjunction with the previous information, provide an
additional indicator of the status of the lobster stocks in NWHI.
Amendment 7 provides that an annual quota be set at a level permitting
an average catch per unit of effort (CPUE) of 1.0 for the fleet. The
Regional Director has used the formula in Amendment 7 to set an initial
quota for 1996 of 143,863 lobsters (spiny and slipper lobster
combined). The final quota, to be announced in the Federal Register as
soon as practicable after August 15, 1996, may increase or decrease
substantially from the initial quota. The Southwest Region, NMFS, will
monitor landings against the quota and issue timely reports of summary
data. The Southwest Region also will promptly notify participants in
the fishery of any changes in the fishery; however, participants are
advised to contact the Southwest Region (see ADDRESSES) periodically to
stay abreast of any change in the quota and progress of the fishery
toward attaining the quota. Under the procedures in 50 CFR 681.31(c),
NMFS will announce the date upon which the quota will be reached or
exceeded and close the fishery.
A proposed Amendment 9 to the FMP has been prepared by the Council.
The amendment proposes changes in the quota-setting procedure that, if
approved by the Secretary and implemented, would affect the 1996
fishery. The amount, size, and condition of lobster that may be
harvested also would change if Amendment 9 is approved and implemented.
Amendment 9 would be implemented by notice-and-comment rulemaking, so
fishermen would be notified of any changes made to the regulations
governing the 1996 fishery and the associated harvest limit.
Classification
This action is authorized by 50 CFR part 681 and is exempt from
review under E.O. 12866.
The Assistant Administrator for Fisheries (AA), NOAA, finds that
since this notice merely announces a quota resulting from the
nondiscretionary application of the objective quota formula in
Amendment 7 to the FMP, no useful purpose would be served by providing
prior notice and opportunity for public comment. Accordingly, the AA
finds good cause under 5 U.S.C. 553(b)(B) to waive as unnecessary the
requirement to provide prior notice and opportunity for public comment.
Authority: 16 U.S.C. 1801 et seq.
Dated: February 14, 1996.
Charles Karnella,
Acting Assistant Administrator for Fisheries, National Marine Fisheries
Service.
[FR Doc. 96-3779 Filed 2-15-96; 11:20 am]
BILLING CODE 3510-22-F
Complete official Federal Register PDF
FR Doc. 96-3763 Fair Market Rents for the Section 8 Housing Assistance Payments ProgramFiscal Year 1996
[Federal Register Volume 61, Number 35 (Wednesday, February 21, 1996)]
[Rules and Regulations]
[Pages 6690-6748]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-3763]
[[Page 6689]]
_______________________________________________________________________
Part II
Department of Housing and Urban Development
_______________________________________________________________________
Office of the Secretary
_______________________________________________________________________
24 CFR Part 888
Fair Market Rents for the Section 8 Housing Assistance Payments
Program--Fiscal Year 1996; Final Rule
Federal Register / Vol. 61, No. 35 / Wednesday, February 21, 1996 /
Rules and Regulations
[[Page 6690]]
DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT
Office of the Secretary
24 CFR Part 888
[Docket No. FR-3933-N-03]
Fair Market Rents for the Section 8 Housing Assistance Payments
Program--Fiscal Year 1996
AGENCY: Office of the Secretary, HUD.
ACTION: Notice of final fiscal year (FY) 1996 fair market rents.
-----------------------------------------------------------------------
SUMMARY: Section 8(c)(1) of the United States Housing Act of 1937
requires the Secretary to publish Fair Market Rents (FMRs) annually to
be effective on October 1 of each year. FMRs are used for the Section 8
Rental Certificate Program (including space rentals by owners of
manufactured homes under that program); the Moderate Rehabilitation
Single Room Occupancy program; housing assisted under the Loan
Management and Property Disposition programs; payment standards for the
Rental Voucher program; and any other programs whose regulations
specify their use.
Today's notice provides final FY 1996 FMRs for all areas. It
includes revised FMRs for 6 areas for which the FMRs have been
increased as a result of HUD-contracted RDD surveys received in late
October. The 6 areas are: Gallatin County, MT; the Johnson City-
Kingsport-Bristol, TN-VA; Lexington, KY; Lincoln, NE; Macon, GA; and
Raleigh-Durham-Chapel Hill, NC FMR areas.
Today's notice also makes effective the FMR reductions for 26 areas
that were proposed in the August 15 notice based on the results of the
most recent Random Digit Dialing and American Housing Surveys.
EFFECTIVE DATE: The FMRs published in this notice are effective on
February 21, 1996.
FOR FURTHER INFORMATION CONTACT:
Gerald Benoit, Operations Division, Office of Rental Assistance,
telephone (202) 708-0477. For technical information on the development
of schedules for specific areas or the method used for the rent
calculations, contact Michael R. Allard, Economic and Market Analysis
Division, Office of Economic Affairs, telephone (202) 708-0577.
Hearing- or speech-impaired persons may use the Telecommunications
Devices for the Deaf (TDD) by contacting the Federal Information Relay
Service at 1-800-877-8339. (Other than the ``800'' TDD number,
telephone numbers are not toll free.).
SUPPLEMENTARY INFORMATION: Section 8 of the United States Housing Act
of 1937 (the Act) (42 U.S.C. 1437f) authorizes housing assistance to
aid lower income families in renting decent, safe, and sanitary
housing. Assistance payments are limited by FMRs established by HUD for
different areas. In general, the FMR for an area is the amount that
would be needed to pay the gross rent (shelter rent plus utilities) of
privately owned, decent, safe, and sanitary rental housing of a modest
(non-luxury) nature with suitable amenities.
Method Used to Develop FMRs
FMR Standard: The FMRs are gross rent estimates; they include
shelter rent and the cost of utilities, except telephone. HUD sets FMRs
to assure that a sufficient supply of rental housing is available to
program participants. To accomplish this objective, FMRs must be both
high enough to permit a selection of units and neighborhoods and low
enough to serve as many families as possible. The level at which FMRs
are set is expressed as a percentile point within the rent distribution
of standard quality rental housing units. The current definition used
is the 40th percentile rent, the dollar amount below which 40 percent
of the standard quality rental housing units rent. The 40th percentile
rent is drawn from the distribution of rents of units which are
occupied by recent movers (renter households who moved into their unit
within the past 15 months). Newly built units less than two years old
are excluded, and adjustments have been made to correct for the below
market rents of public housing units included in the data base.
Data Sources: HUD used the most accurate and current data available
to develop the FMR estimates. The sources of survey data used for the
base-year estimates are:
(1) the 1990 Census, which provides statistically reliable rent
data for all FMR areas;
(2) the Bureau of the Census' American Housing Surveys (AHSs),
which are used to develop between-Census revisions for the largest
metropolitan areas and which have accuracy comparable to the decennial
Census; and
(3) the Random Digit Dialing (RDD) telephone surveys of individual
FMR areas, which are based on a sampling procedure that uses computers
to select statistically random samples of rental housing.
The base-year FMRs are updated using trending factors based on
Consumer Price Index (CPI) data for rents and utilities or HUD regional
rent change factors developed from RDD surveys. Annual average CPI data
are available individually for 102 metropolitan FMR areas. RDD Regional
rent change factors are developed annually for the metropolitan and
nonmetropolitan parts of each of the 10 HUD regions. The RDD factors
are used to update the base year estimates for all FMR areas that do
not have their own local CPI survey.
RDD surveys have a high degree of statistical accuracy; there is a
95 percent likelihood that the recent mover rent estimates developed
using this approach are within 3 to 4 percent of the actual rent value.
Virtually all of the RDD survey FMR estimates will be within 5 percent
of the actual value.
State Minimum FMRs: Starting with the FY 1996 FMRs, HUD implemented
a new minimum FMR policy in response to numerous public concerns that
FMRs in rural areas were too low to operate the program successfully.
As a result, FMRs are not established at the higher of the local FMR or
the State-wide average of nonmetropolitan counties, subject to a
ceiling rent cap. The State minimum also affects a small number of
metropolitan areas whose rents would otherwise fall below the State
minimum.
Public Comments
In response to the August 15, 1995, proposed FMRs, HUD received 78
public comments covering 59 FMR areas. Rental housing survey
information was included for 18 of the FMR areas covered by comments.
HUD carefully evaluated all of the survey data submitted and, based on
that review, is revising the FMRs for 10 of the 18 areas. The
information submitted for the 41 areas that did not provide rental
housing survey data was not considered sufficient to provide a basis
for revising the FMRs.
Of the 10 FMR areas with approved FMR revisions, 6 submitted RDD
surveys conducted by the Public Housing Agency (PHA) or by a
professional survey firm, and 4 submitted traditional landlord/owner
type surveys. The 6 areas that used the RDD survey method were: the
Austin-San Marcos, TX; Boston, MA; Lake Charles, LA; Oakland, CA; Santa
Rosa, CA; and the Washington, DC FMR areas. The 4 areas with successful
traditional surveys were: the Kenai Peninsular Borough and the
Matanuska-Susitna Borough in Alaska and Archuleta County and Laplata
County in Colorado.
[[Page 6691]]
HUD also received submissions from 7 firms in Iowa, Nebraska, and
South Dakota which consisted essentially of an appraisal of an
individual project in 15 different FMR areas. This information was
referred to the appropriate staff in the HUD field offices with
jurisdiction. These submissions have not been counted in this year's
summary of FMR comments because they did not address the adequacy of
the area-wide FMRs, but rather the need for higher rents in specific
projects. The requirements for successful FMR comments are specific in
the subsequent section of this preamble, HUD Rental Housing Survey
Guides, and are included in the preambles of the annual notices of
proposed FMRs.
AHS and RDD Surveys
In the August 15, 1995 (60 FR 42290), notice of proposed FMRs, 31
FMR areas had FMRs proposed with reductions based on recent RDD or AHS
surveys. Four of these areas subsequently submitted RDD surveys which
indicated higher FMRs than the proposed levels. Revised FMRs,
therefore, have been approved for the Boston, MA-NH; Oakland, CA; Santa
Rosa, CA; and Washington, DC-MD-VA FMR areas. The survey submitted for
the Dayton-Springfield, OH FMR area did not contain sufficient rental
housing survey information to provide a basis for revising the FMRs.
HUD did not receive any comments from the other 26 areas with proposed
FMR reductions.
Manufactured Home Space FMRs
HUD also received public comments and survey data from 7 FMR areas
concerning the manufactured home space FMRs. As a result of a review of
the data, increased FMRs have been approved for 4 of these areas and
added to Schedule D. These 4 areas are: Vallejo-Fairfield-Napa, CA;
Provo-Orem, UT; Benton County, OR; and Linn County, OR. The information
submitted from the other 3 areas was not considered sufficient to
provide a basis for revising the manufactured home space FMRs.
Manufactured home space FMRs are 30 percent of the applicable
Section 8 Rental Certificate Program two-bedroom FMR. HUD accepts
public comments requesting modifications of manufactured home space
FMRs. In order to be accepted as a basis for revising the FMRs, such
comments must contain statistically valid survey data that show the
40th percentile space rent (excluding the cost of utilities) for the
entire FMR area. This program uses the same FMR area definitions as the
Section 8 Rental Certificate Program. Manufactured home space FMR
revisions are published as final FMRs in Schedule D. Once approved, the
revised manufactured home space FMRs establish new base year estimates
that are updated annually using the same data used to update the Rental
Certificate program FMRs.
Virgin Islands
After consultation with the Virgin Islands Housing Authority, HUD
agreed to group the Virgin Islands into two areas for FMR calculation
purposes. One area consists of the island of St. Croix and the other
the islands of St. Johns and St. Thomas. The revised FMRs, based on the
results of a PHA-supported RDD survey, are higher than the previous
FMRs for St. Johns and St. Thomas and lower for St. Croix.
Puerto Rico
RDD surveys were conducted for all seven Puerto Rico FMR areas
during 1995. HUD's September 18, 1995 (60 FR 48278), Federal Register
notice of final FMRs implemented increased FMRs for the Mayaguez and
Aguadilla areas. FMRs for the other five Puerto Rico FMR areas, four of
which had proposed FMR decreases, were held at their previous levels
pending completion of the RDD surveys.
The final FMRs based on the survey results for these five areas are
as follows: the FMRs for San Juan and nonmetropolitan Puerto Rico are
the same as last year's; the FMRs for Caguas are slightly lower than
last year's; and the FMRs for Arecibo and Ponce are being implemented
at the reduced proposed levels, although further reductions will be
proposed next year for these two areas based on the still lower
estimates determined from the RDD survey results.
HUD Rental Housing Survey Guides
HUD recommends use of professionally-conducted RDD telephone
surveys to test the accuracy of FMRs for areas where there is a
sufficient number of Section 8 units to justify the survey cost of
$10,000-$12,000. Areas with 500 or more program units usually meet this
criterion, and areas with fewer units may meet it if the actual two-
bedroom FMR rent standard is significantly different than that proposed
by HUD. In addition, HUD has developed a version of the RDD survey
methodology for smaller, nonmetropolitan PHAs. This methodology is
designed to be simple enough to be done by the PHA itself, rather than
by professional survey organizations, at a cost of $5,000 or less.
PHAs in nonmetropolitan areas, in certain circumstances, may do
surveys of groups of counties. All grouped county surveys must be
approved in advance by HUD. PHAs are cautioned that the resultant FMRs
will not be identical for the counties surveyed; each individual FMR
area will have a separate FMR based on its relationship to the combined
rent of the group of FMR areas.
PHAs that plan to use the RDD survey technique may obtain a copy of
the appropriate survey guide by calling HUD USER on 1-800-245-2691.
Larger PHAs should request ``Random Digit Dialing Surveys; A Guide to
Assist Larger Public Housing Agencies in Preparing Fair Market Rent
Comments.'' Smaller PHAs should obtain ``Rental Housing Surveys; A
Guide to Assist Smaller Public Housing Agencies in Preparing Fair
Market Rent Comments.''
HUD prefers, but does not mandate, the use of RDD telephone
surveys, or the more traditional method described in the small PHA
survey guide. Other survey methodologies are acceptable as long as they
provide statistically reliable, unbiased estimates of the 40th
percentile gross rent. Survey samples should preferably be randomly
drawn from a complete list of rental units for the FMR area. If this is
not feasible, the selected sample must be drawn so as to be
statistically representative of the entire rental housing stock of the
FMR area. In particular, surveys must include units of all rent levels
and be representative by structure type (including single-family,
duplex and other small rental properties), age of housing unit, and
geographic location. The decennial Census should be used as a starting
point and means of verification for determining whether the sample is
representative of the FMR area's rental housing stock. All survey
results must be fully documented.
FMRs for Federal Disaster Areas
Under the authority granted in 24 CFR part 899, the Secretary finds
good cause to waive the regulatory requirements that govern requests
for geographic area FMR exceptions for areas that are declared disaster
areas by the Federal Emergency Management Agency (FEMA) during FY 1996.
HUD is prepared to grant disaster-related exceptions up to 10 percent
above the applicable FMRs. HUD field offices are authorized to approve
such exceptions for: (1) Single-county FMR areas and for individual
county parts of multi-county FMR areas that qualify as disaster areas
under the Robert T. Stafford Disaster Relief and Emergency Assistance
Act; if (2) the PHA certifies that damage to the rental housing stock
as a result of the disaster is so substantial that it has increased the
prevailing rent levels in
[[Page 6692]]
the affected area. Such exceptions must be requested in writing by the
responsible PHAs. Once approved by HUD, they will remain in effect
until superseded by the publication of the final FY 1998 FMRs.
Other Matters
A Finding of No Significant Impact with respect to the environment
as required by the National Environmental Policy Act (42 U.S.C. 4321-
4374) is unnecessary, since the Section 8 Rental Certificate Program is
categorically excluded from the Department's National Environmental
Policy Act procedures under 24 CFR 50.20(d).
The undersigned, in accordance with the Regulatory Flexibility Act
(5 U.S.C. 605(b)), hereby certifies that this notice does not have a
significant economic impact on a substantial number of small entities,
because FMRs do not change the rent from that which would be charged if
the unit were not in the Section 8 Program.
The General Counsel, as the Designated Official under Executive
Order No. 12606, The Family, has determined that this notice will not
have a significant impact on family formation, maintenance, or well-
being. The notice amends Fair Market Rent schedules for various Section
8 assisted housing programs, and does not affect the amount of rent a
family receiving rental assistance pays, which is based on a percentage
of the family's income.
The General Counsel, as the Designated Official under section 6(a)
of Executive Order No. 12611, Federalism, has determined that this
notice will not involve the preemption of State law by Federal statute
or regulation and does not have Federalism implications. The Fair
Market Rent schedules do not have any substantial direct impact on
States, on the relationship between the Federal government and the
States, or on the distribution of power and responsibility among the
various levels of government.
The Catalog of Federal Domestic Assistance program number is
14.156, Lower-Income Housing Assistance Program (section 8).
Accordingly, the Fair Market Rent Schedules, which will not be
codified in 24 CFR Part 888, are amended as follows:
Dated: February 7, 1996.
Henry G. Cisneros,
Secretary.
Fair Market Rents for the Section 8 Housing Assistance Payments
Program
Schedules B and D--General Explanatory Notes
1. Geographic Coverage
a. The FMRs shown in Schedule B incorporate the Office of
Management and Budget's (OMB) most current definitions of metropolitan
areas (with the exceptions discussed in paragraph b). HUD uses the OMB
Metropolitan Statistical Area (MSA) and Primary Metropolitan
Statistical Area (PMSA) definitions for FMR areas because they closely
correspond to housing market area definitions. FMRs are housing market-
wide rent estimates that are intended to provide housing opportunities
throughout the geographic area in which rental housing units are in
direct competition.
b. The exceptions are counties deleted from seven large
metropolitan areas whose revised OMB definitions were determined by HUD
to be larger than the housing market areas. The FMRs for the following
counties (shown by the metropolitan area) are calculated separately and
are shown in Schedule B within their respective States under the
``Metropolitan FMR Areas'' listing:
Metropolitan Area and Counties Deleted
Atlanta, GA--Carroll, Pickens, and Walton Counties.
Chicago, IL--DeKalb, Grundy and Kendall Counties.
Cincinnati-Hamilton, OH-KY-IN--Brown County, Ohio; Gallatin, Grant and
Pendleton Counties in Kentucky; and Ohio County, Indiana.
Dallas, TX--Henderson County.
Flagstaff, AZ-UT--Kane County, UT
Lafayette, LA--St. Landry and Acadia Parishes.
New Orleans, LA--St. James Parish.
Washington, DC-MD-VA-WV--Berkeley and Jefferson Counties in West
Virginia; and Clarke, Culpeper, King George and Warren counties in
Virginia.
c. FMRs also are established for nonmetropolitan counties and for
county equivalents in the United States, for nonmetropolitan parts of
counties in the New England states and for FMR areas in Puerto Rico,
the Virgin Islands and the Pacific Islands.
d. FMRs for the areas in Virginia shown in the table below were
established by combining the Census data for the nonmetropolitan
counties with the data for the independent cities that are located
within the county borders. Because of space limitations, the FMR
listing in Schedule B includes only the name of the nonmetropolitan
County. The full definitions of these areas including the independent
cities are as follows:
Virginia Nonmetropolitan County FMR Area and Virginia Independent Cities
Included With County
------------------------------------------------------------------------
County Cities
------------------------------------------------------------------------
Allegheny............................. Clifton Forge and Covington.
Augusta............................... Staunton and Waynesboro.
Carroll............................... Galax.
Frederick............................. Winchester.
Greensville........................... Emporia.
Henry................................. Martinsville.
Montgomery............................ Radford.
Rockbridge............................ Buena Vista and Lexington.
Rockingham............................ Harrisonburg.
Southhampton.......................... Franklin.
Wise.................................. Norton.
------------------------------------------------------------------------
e. FMRs for Section 8 manufactured home spaces are established at
30 percent of the two-bedroom Section 8 Rental Certificate program
FMRs, with the exception of the areas listed in Schedule D whose FMRs
have been revised on the basis of public comments. Once approved, the
revised manufactured home space FMRs establish new base-year estimates
that will be updated annually using the same data used to estimate the
Rental Certificate program FMRs. The FMR area definitions used for
manufactured home spaces are the same as for the Section 8 Certificate
program.
2. Arrangement of FMR Areas and Identification of Constituent Parts
a. The FMR areas in Schedule B are listed alphabetically by
metropolitan FMR area and by nonmetropolitan county within each State.
The exception FMRs for manufactured home spaces in Schedule D are
listed alphabetically by State.
b. The constituent counties (and New England towns and cities)
included in each metropolitan FMR area are listed immediately following
the listings of the FMR dollar amounts. All constituent parts of a
metropolitan FMR area that are in more than one State can be identified
by consulting the listings for each applicable State.
c. Two nonmetropolitan counties are listed alphabetically on each
line of the nonmetropolitan county listings.
d. The New England towns and cities included in a nonmetropolitan
part of a county are listed immediately following the county name.
e. The FMRs are listed by dollar amount on the first line beginning
with the FMR area name.
BILLING CODE 4210-32-M
[[Page 6693]]
[GRAPHIC] [TIFF OMITTED] TR21FE96.000
[[Page 6694]]
[GRAPHIC] [TIFF OMITTED] TR21FE96.001
[[Page 6695]]
[GRAPHIC] [TIFF OMITTED] TR21FE96.002
[[Page 6696]]
[GRAPHIC] [TIFF OMITTED] TR21FE96.003
[[Page 6697]]
[GRAPHIC] [TIFF OMITTED] TR21FE96.004
[[Page 6698]]
[GRAPHIC] [TIFF OMITTED] TR21FE96.005
[[Page 6699]]
[GRAPHIC] [TIFF OMITTED] TR21FE96.006
[[Page 6700]]
[GRAPHIC] [TIFF OMITTED] TR21FE96.007
[[Page 6701]]
[GRAPHIC] [TIFF OMITTED] TR21FE96.008
[[Page 6702]]
[GRAPHIC] [TIFF OMITTED] TR21FE96.009
[[Page 6703]]
[GRAPHIC] [TIFF OMITTED] TR21FE96.010
[[Page 6704]]
[GRAPHIC] [TIFF OMITTED] TR21FE96.011
[[Page 6705]]
[GRAPHIC] [TIFF OMITTED] TR21FE96.012
[[Page 6706]]
[GRAPHIC] [TIFF OMITTED] TR21FE96.013
[[Page 6707]]
[GRAPHIC] [TIFF OMITTED] TR21FE96.014
[[Page 6708]]
[GRAPHIC] [TIFF OMITTED] TR21FE96.015
[[Page 6709]]
[GRAPHIC] [TIFF OMITTED] TR21FE96.016
[[Page 6710]]
[GRAPHIC] [TIFF OMITTED] TR21FE96.017
[[Page 6711]]
[GRAPHIC] [TIFF OMITTED] TR21FE96.018
[[Page 6712]]
[GRAPHIC] [TIFF OMITTED] TR21FE96.019
[[Page 6713]]
[GRAPHIC] [TIFF OMITTED] TR21FE96.020
[[Page 6714]]
[GRAPHIC] [TIFF OMITTED] TR21FE96.021
[[Page 6715]]
[GRAPHIC] [TIFF OMITTED] TR21FE96.022
[[Page 6716]]
[GRAPHIC] [TIFF OMITTED] TR21FE96.023
[[Page 6717]]
[GRAPHIC] [TIFF OMITTED] TR21FE96.024
[[Page 6718]]
[GRAPHIC] [TIFF OMITTED] TR21FE96.025
[[Page 6719]]
[GRAPHIC] [TIFF OMITTED] TR21FE96.026
[[Page 6720]]
[GRAPHIC] [TIFF OMITTED] TR21FE96.027
[[Page 6721]]
[GRAPHIC] [TIFF OMITTED] TR21FE96.028
[[Page 6722]]
[GRAPHIC] [TIFF OMITTED] TR21FE96.029
[[Page 6723]]
[GRAPHIC] [TIFF OMITTED] TR21FE96.030
[[Page 6724]]
[GRAPHIC] [TIFF OMITTED] TR21FE96.031
[[Page 6725]]
[GRAPHIC] [TIFF OMITTED] TR21FE96.032
[[Page 6726]]
[GRAPHIC] [TIFF OMITTED] TR21FE96.033
[[Page 6727]]
[GRAPHIC] [TIFF OMITTED] TR21FE96.034
[[Page 6728]]
[GRAPHIC] [TIFF OMITTED] TR21FE96.035
[[Page 6729]]
[GRAPHIC] [TIFF OMITTED] TR21FE96.036
[[Page 6730]]
[GRAPHIC] [TIFF OMITTED] TR21FE96.037
[[Page 6731]]
[GRAPHIC] [TIFF OMITTED] TR21FE96.038
[[Page 6732]]
[GRAPHIC] [TIFF OMITTED] TR21FE96.039
[[Page 6733]]
[GRAPHIC] [TIFF OMITTED] TR21FE96.040
[[Page 6734]]
[GRAPHIC] [TIFF OMITTED] TR21FE96.041
[[Page 6735]]
[GRAPHIC] [TIFF OMITTED] TR21FE96.042
[[Page 6736]]
[GRAPHIC] [TIFF OMITTED] TR21FE96.043
[[Page 6737]]
[GRAPHIC] [TIFF OMITTED] TR21FE96.044
[[Page 6738]]
[GRAPHIC] [TIFF OMITTED] TR21FE96.045
[[Page 6739]]
[GRAPHIC] [TIFF OMITTED] TR21FE96.046
[[Page 6740]]
[GRAPHIC] [TIFF OMITTED] TR21FE96.047
[[Page 6741]]
[GRAPHIC] [TIFF OMITTED] TR21FE96.048
[[Page 6742]]
[GRAPHIC] [TIFF OMITTED] TR21FE96.049
[[Page 6743]]
[GRAPHIC] [TIFF OMITTED] TR21FE96.050
[[Page 6744]]
[GRAPHIC] [TIFF OMITTED] TR21FE96.051
[[Page 6745]]
[GRAPHIC] [TIFF OMITTED] TR21FE96.052
[[Page 6746]]
[GRAPHIC] [TIFF OMITTED] TR21FE96.053
[[Page 6747]]
[GRAPHIC] [TIFF OMITTED] TR21FE96.054
[[Page 6748]]
[GRAPHIC] [TIFF OMITTED] TR21FE96.055
[FR Doc. 96-3763 Filed 2-20-96; 8:45 am]
BILLING CODE 4210-32-C
Complete official Federal Register PDF
FR Doc. 96-3744 Repeal of Superseded Regulations Covering Standards of Ethical Conduct for Employees of the African Development Foundation
[Federal Register Volume 61, Number 35 (Wednesday, February 21, 1996)]
[Rules and Regulations]
[Pages 6506-6507]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-3744]
=======================================================================
-----------------------------------------------------------------------
AFRICAN DEVELOPMENT FOUNDATION
22 CFR Part 1504
Repeal of Superseded Regulations Covering Standards of Ethical
Conduct for Employees of the African Development Foundation
AGENCY: African Development Foundation (``Foundation'').
ACTION: Final rule.
-----------------------------------------------------------------------
[[Page 6507]]
SUMMARY: The African Development Foundation is repealing its old
conduct regulations for employees of the Foundation, which were
superseded by the executive branch-wide Standards of Ethical Conduct
and financial disclosure regulations. The Foundation is also issuing a
residual cross-reference to the new provisions.
EFFECTIVE DATE: February 21, 1996.
FOR FURTHER INFORMATION CONTACT: Paul Magid, Designated Agency Ethics
Official, or Tom Wilson, Alternate Designated Agency Ethics Official,
African Development Foundation, 1400 Eye Street, N.W., 10th Floor,
Washington, D.C. 20005. Telephone: (202) 673-3916.
SUPPLEMENTARY INFORMATION:
I. Background
On August 7, 1992, the Office of Government Ethics published a
final rule entitled ``Standards of Ethical Conduct for Employees of the
Executive Branch'' (Standards). See 57 FR 35006-35067, as corrected at
57 FR 48557 and 57 FR 52583, with additional grace period extensions
for certain existing agency Standards of Conduct at 59 FR 4779-4780 and
60 FR 6390-6391. The Standards, codified at 5 CFR part 2635 and
effective February 3, 1993, establish uniform standards of ethical
conduct that apply to all executive branch personnel.
By this notice, the Foundation is repealing its old conduct
regulations at 22 CFR part 1504 which have been superseded by the
Standards found at 5 CFR part 2635 and by the OGE regulations at 5 CFR
part 2634, Executive Branch Financial Disclosure, Qualified Trusts, and
Certificates of Divestiture.
II. Repeal of Foundation Employee Responsibilities and Conduct
Regulations
Because the Foundation's regulations on Employees Responsibilities
and Conduct have been superseded by the newer executive branch
standards of ethical conduct and financial disclosure regulations, 5
CFR parts 2634 and 2635, on the effective date of the final rule, the
Foundation is repealing all of existing 22 CFR part 1504. To ensure
that Foundation employees are on notice of the ethical standards and
financial disclosure requirements to which they are subject, the
Foundation is replacing old part 1504 with a new 5 CFR 1504.1 which
cross-references 5 CFR parts 2634 and 2635.
III. Matters of Regulatory Procedure
Administrative Procedure Act
In accordance with the Administrative Procedure Act (5 U.S.C. 553
(b) and (d)(3)), the Foundation has found that good cause exists for
waiving as unnecessary and contrary to the public interest, the general
notice of proposed rulemaking and the 30-day delay in effectiveness as
to the rules and repeals. Public comment is unnecessary because these
regulations merely revoke existing regulations which have been
superseded in accordance with previously issued government-wide
regulations. In addition, since these regulations relate to agency
management and personnel they are exempt from notice and comment under
5 U.S.C. 553(a)(2).
Executive Order 12866
In promulgating this final rule the Foundation has adhered to the
regulatory philosophy and the applicable principles of regulation set
forth at section 1 of Executive Order 12866, Regulatory Planning and
Review. This final rule deals with Foundation organization, management
and personnel matters and is therefore, not deemed ``significant''
under Executive Order 12866.
Regulatory Flexibility Act
The Foundation has determined under the Regulatory Flexibility Act
(5 U.S.C. 601 et seq.) that these regulations will not have a
significant impact on small business entities because they affect only
Foundation employees.
Paperwork Reduction Act
The Foundation has determined that the Paperwork Reduction Act (44
U.S.C. chapter 35) does not apply because these regulations do not
contain any information collection requirements that require the
approval of the Office of Management and Budget.
List of Subjects in 22 CFR Part 1504
Conflict of interests, Government employees.
Dated: February 13, 1995.
Paul Magid,
General Counsel, African Development Foundation.
For the reasons set forth in the preamble, the African Development
Foundation is revising 22 CFR part 1504 to read as follows:
PART 1504--EMPLOYEE RESPONSIBILITIES AND CONDUCT
Sec. 1504.1 Cross-references to employee ethical conduct standards and
financial disclosure regulations.
Directors and other employees of the African Development Foundation
are subject to the Standards of Ethical Conduct for Employees of the
Executive Branch at 5 CFR part 2635, and the executive branch financial
disclosure regulations at 5 CFR part 2634.
Authority: 5 U.S.C. 7301.
[FR Doc. 96-3744 Filed 2-20-96; 8:45 am]
BILLING CODE 6116-06-P
Complete official Federal Register PDF
FR Doc. 96-3742 Bureau of Consular Affairs; Passports for Minors
[Federal Register Volume 61, Number 35 (Wednesday, February 21, 1996)]
[Rules and Regulations]
[Pages 6505-6506]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-3742]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF STATE
22 CFR Part 51
[Public Notice 2333]
Bureau of Consular Affairs; Passports for Minors
AGENCY: Department of State.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: This rule amends regulations regarding the basis for issuance
and denial of passports to minors, both in custodial dispute and non-
dispute situations. These amendments were proposed to promote the well
being of minors and to discourage persons from circumventing valid
court orders affecting minors.
EFFECTIVE DATE: December 4, 1995.
FOR FURTHER INFORMATION CONTACT:
Kenneth Hunter, Deputy Assistant Secretary for Passport Services, Room
6811, U.S. Department of State, Washington, DC 20520; tele: (202) 647-
5366.
SUPPLEMENTARY INFORMATION: Present regulations prescribe the method of
execution of a passport application for minors and address the issuance
of passports to minors where a parent or guardian objects, 22 CFR
51.27. Specifically, the current regulations provide for the denial of
a U.S. passport to a minor who has been involved in a custodial dispute
if the passport issuing office receives a court order from a court
within the country in which passport services are sought. Such a court
order must provide that the objecting parent, legal guardian or person
in loco parentis has been granted custody, or forbid the child's
departure from the country in which passport services are sought
without the permission of the court.
The revised regulations will implement a policy of denying passport
services to minors on the basis of a court order of competent
jurisdiction that has been registered with the appropriate office at
the Department of State. For the purpose of these regulations, the
Department will consider a court of competent jurisdiction to be a U.S.
state court or a foreign court having jurisdiction over child custody
issues consistent with the principles of the Hague Convention on the
Civil Aspects of International Child Abduction and the Uniform Child
Custody Jurisdiction Act, which favor the exercise of custody
jurisdiction by the court of the child's ``habitual residence'' or
``home state.'' While the Department of State is not legally bound by
U.S. state court and foreign court custody orders, the Department has
determined that honoring such orders is generally appropriate to
prevent unlawful child abductions. The revised regulations will,
however, also authorize the issuance of a passport to a minor who is
the subject of a custody dispute if compelling humanitarian or
emergency reasons relating to the minor's welfare warrant the issuance
of a passport.
Also included in the amendments is information regarding release of
information about a minor's passport application to an objecting
parent.
A Notice of Proposed Rule was published on October 3, 1995.
Comments were requested, and none were received. This Final Rule is
being re-published without change.
This rule is not exempt from E.O. 12866, but has been reviewed and
found to be consistent with the objectives thereof. This rule is not
expected to have a significant impact on a substantial number of small
entities under the criteria of the Regulatory Flexibility Act, 5 U.S.C.
605(b). In addition, this rule will not impose information collection
requirements under the provisions of the Paperwork Reduction Act of
1995, 44 U.S.C. Chapter 35, as amended. Nor does this rule have
federalism implications warranting the preparation of a Federalism
Assessment in accordance with E.O. 12612. This rule has been reviewed
as required by E.O. 12778 and certified to be in compliance therewith.
List of Subjects in 22 CFR Part 51
Passports, Infants and children.
For the reasons set forth in the preamble, 22 CFR 51.27 is amended
as follows:
PART 51--PASSPORTS
Subpart B--Application
1. The authority citation for section 51.27 continues to read as
follows:
Authority: 22 U.S.C. 2658 and 3926.
2. Section 51.27 is amended by revising paragraphs (b), (c) and (d)
to read as follows:
Sec. 51.27 Minors.
* * * * *
(b) Execution of application for minors.
(1) A minor of age 13 years or above shall execute an application
on his or her own behalf unless in the judgment of the person before
whom the application is executed it is not desirable for the minor to
execute his or her own application. In such case it must be executed by
a parent or guardian of the minor, or by a person in loco parentis.
(2) A parent, a guardian, or person in loco parentis shall execute
the application for minors under the age of 13 years. Applications may
be executed by either parent, regardless of the parent's citizenship.
Permission of or notification to the other parent will not be required
unless such permission or notification is required by a court order
registered with the Department of State by an objecting parent as
provided in paragraph (d)(1) of this section.
(3) The passport issuing office may require a minor under the age
of 18 years to obtain and submit the written consent of a parent, a
legal guardian or a person in loco parentis to the issuance of the
passport.
(c) Objection by parent, guardian or person in loco parentis in
cases not involving a custody dispute. At any time prior to the
issuance of a passport to a minor, the application may be disapproved
and a passport will be denied upon receipt of a written objection from
a person having legal custody of the minor.
(d) Objection by parent, guardian or person in loco parentis in
cases where minors are the subject of a custody dispute.
(1)(i) When there is a dispute concerning the custody of a minor, a
passport may be denied if the Department has on file a court order
granted by a court of competent jurisdiction in the United States or
abroad which: (A) Grants sole custody to the objecting parent; or, (B)
Establishes joint legal cutody; or, (C) Prohibits the child's travel
without the permission of both parents or the court; or, (D) Requires
the permission of both parents or the court for important decisions,
unless permission is granted in writing as provided therein. (ii) For
passport issuance purposes,a court order providing for joint legal
custody will be interpreted as requiring the permission of both
parents. The Department will consider a court of
[[Page 6506]]
competent jurisdiction to be a U.S. state court or a foreign court
located in the child's home state or place of habitual residence.
Notwithstanding the existence of any such court order, a passport may
be issued when compelling humanitarian or emergency reasons relating to
the welfare of the child exist.
(2) Either parent may obtain information regarding the application
for and issuance of a passport to a minor unless the inquiring parent's
parental rights have been terminated by a court order which has been
registered with the appropriate office at the Department of State;
provided, however, that the Department may deny such information to any
parent if it determines that the minor is of sufficient maturity to
assert a privacy interest in his/her own right, in which case the
minor's written consent to disclosure shall be required.
(3) The Department may require that conflicts regarding custody
orders, whether domestic or foreign, be settled by the appropriate
court before a passport may be issued.
Dated: February 6, 1996.
Ruth A. Davis,
Acting Assistant Secretary, Bureau of Consular Affairs.
[FR Doc. 96-3742 Filed 2-20-96; 8:45 am]
BILLING CODE 4710-06-M
Complete official Federal Register PDF
FR Doc. 96-3741 Repeal of Department of State Regulations on Removal of Alien Enemies, on World War II Reparations, and on Disposal of Foreign Surplus Property
[Federal Register Volume 61, Number 35 (Wednesday, February 21, 1996)]
[Rules and Regulations]
[Page 6506]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-3741]
-----------------------------------------------------------------------
DEPARTMENT OF STATE
Office of the Legal Adviser
22 CFR Parts 111, 112, and 133
[Public Notice 2332]
Repeal of Department of State Regulations on Removal of Alien
Enemies, on World War II Reparations, and on Disposal of Foreign
Surplus Property
AGENCY: Office of the Legal Adviser, Department of State.
ACTION: Final rule with request for comments.
-----------------------------------------------------------------------
SUMMARY: The Department of State is removing Parts 111, 112, and 133 of
Title 22 of the Code of Federal Regulations. Part 111 relates to
removal of alien enemies brought to the United States from other
American republics. Part 112 relates to World War II reparations. Part
133 relates to disposal of surplus property in foreign areas under the
Surplus Property Act of 1944. Parts 111 and 112 are obsolete and
unnecessary. Part 133 is obsolete because of the repeal of the
statutory authority and changes in the agencies having regulatory
authority for the few remaining provisions; it is also unnecessary
because of replacement statutory and regulatory authority on this
subject.
DATES: Effective April 22, 1996. Comments are due on or before March
22, 1996.
ADDRESSES: Interested persons should send comments in writing and in
duplicate to the Assistant Legal Adviser for Legislation and General
Management, Office of the Legal Adviser, Department of State,
Washington, DC 20520.
FOR FURTHER INFORMATION CONTACT:
Mary Beth West, Assistant Legal Adviser for Legislation and General
Management, (202) 647-5154.
SUPPLEMENTARY INFORMATION: This rule repeals 22 CFR Parts 111 and 112,
which relate, respectively, to removal from the United States of aliens
brought into the United States from another American republic whose
presence the Secretary of State determines to be prejudicial to the
security or welfare of the Americas, and to acceptance of World War II
reparations payments. The authority upon which Part III was based,
Presidential Proclamation No. 2655, dated April 10, 1946 (3 CFR 1943-
1948 Comp.), has been repealed. The reparations program under Part 112
has not been active for some time and is not expected to be resumed.
This rule also repeals Part 133, which was issued to implement
provisions of the Surplus Property Act of 1944, as amended (50 U.S.C.
App. 1611-1646) intended to regulate the disposition of United States
Government property abroad in the aftermath of World War II. Most
provisions of that Act have been repealed and superseded by more
general provisions on disposition of United States Government property
under the Federal Property and Administrative Services Act of 1949, as
amended (40 U.S.C. 471 et seq.) or specific statutory authorities such
as the Foreign Assistance Act of 1961, as amended (22 U.S.C. 2141 et
seq.). Superseding and remaining authorities are now the regulatory
responsibility of agencies other than the Department of State.
The regulations which are the subject of the present rule are
obsolete and unnecessary, dating from the World War II era. The
regulations have not been used for many years. We believe, therefore,
that the repeal of these regulations will be noncontroversial and that
adverse comments will not be received. For that reason, it has been
determined that the ``good cause'' exception from advance notice and
comment rulemaking, found at 5 U.S.C. 553(d)(3), permits the direct
implementation of this rule repealing those regulations with provision
for post-promulgation comment instead.
Repeal of these regulations is in furtherance of the President's
Regulatory Reinvention Initiative. Neither the rule, nor the
regulations which it would repeal, are expected to have a significant
impact on a substantial number of small entities when considered under
the criteria of the Regulatory Flexibility Act.
The rule does not impose a Federal regulatory mandate on State,
local, or tribal government entities under the Unfunded Mandates Act
(P.L. 104-4) because it repeals regulations which themselves created no
such mandate. In addition, this rule does not impose information
collection requirements under the provisions of the Paperwork Reduction
Act of 1980. This rule has been reviewed by the Assistant Legal Adviser
for Legislation and General Management and certified that it is in
compliance with Executive Order 12778. This rule is exempt from review
under Executive Order 12866, but has been reviewed internally by the
Department of State to ensure consistency with the objectives of that
order.
List of Subjects
22 CFR Part 111
Aliens, Security measures.
22 CFR Part 112
War claims.
22 CFR Part 133
Surplus Government property.
PARTS 111, 112, AND 133--[REMOVED]
Accordingly, under the authority of 22 U.S.C. 2651a(4), 22 CFR
Parts 111, 112, and 133 are removed.
Dated: February 7, 1996.
Mary Beth West,
Assistant Legal Adviser for Legislation and General Management.
[FR Doc. 96-3741 Filed 2-20-96; 8:45 am]
BILLING CODE 4710-08-M
Complete official Federal Register PDF
FR Doc. 96-3739 Senior Biomedical Research Service
[Federal Register Volume 61, Number 35 (Wednesday, February 21, 1996)]
[Rules and Regulations]
[Pages 6556-6559]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-3739]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF HEALTH AND HUMAN SERVICES
Public Health Service
42 CFR Part 24
Senior Biomedical Research Service
AGENCY: Public Health Service (PHS), DHHS.
ACTION: Interim final rule with request for comments.
-----------------------------------------------------------------------
SUMMARY: The Secretary of Health and Human Services (DHHS) is issuing
[[Page 6557]]
interim final regulations implementing section 228 of the Public Health
Service Act, as amended by section 304 of Public Law 101-509 and
section 2001 of Public Law 103-43, which establish in the Public Health
Service a Senior Biomedical Research Service.
These regulations are being published as an interim final rule with
request for comment. Although the Administrative Procedure Act does not
apply to a matter relating to agency management or personnel [5 U.S.C.
553(a)(2)] and although the Act itself permits publication of a final
rule without a notice and comment period for rules of agency
organization or procedure [5 U.S.C. 553(b))], these regulations are
considered a significant enough change in policy to benefit from public
comment.
EFFECTIVE DATE: This interim rule is effective February 21, 1996.
Comments should be received within thirty days from the date of
publication.
ADDRESSES: Comments may be sent or delivered to Rosemary Taylor, Office
of the Assistant Secretary for Management and Budget, Office of the
Secretary, Department of Health and Human Services, Hubert H. Humphrey
Building, Room 522-A, 200 Independence Ave., S.W., Washington, D.C.
20201.
FOR FURTHER INFORMATION CONTACT:
Rosemary Taylor at (202) 690-7358, Office of the Assistant Secretary
for Management and Budget, Office of the Secretary, Department of
Health and Human Services, Hubert H. Humphrey Building, Room 522-A, 200
Independence Ave., S.W., Washington, D.C. 20201.
SUPPLEMENTARY INFORMATION: Section 304 of Public Law 101-509 amended
the Public Health Service Act by adding a new section 228, which
establishes the Senior Biomedical Research Service (SBRS) in the PHS.
Section 2001 of Public Law 103-43 amended the Public Health Service Act
by increasing the number of authorized positions to 500. Members of the
SBRS are to be appointed by the Secretary without regard to the
provisions of title 5, U.S. Code, regarding appointment, and are to be
individuals outstanding in the field of biomedical research or clinical
research evaluation. Appointments to the SBRS will be only to
individuals actively engaged in either peer-reviewed original
biomedical research of clinical research evaluation. These regulations
establish the basic eligibility criteria, pay rates, performance
appraisal system, optional retirement system, and procedure for removal
from the SBRS. These regulations may be supplemented by HHS personnel
instructions.
Executive Order 12866
I have examined the impacts of the interim final rule under
Executive Order 12866. I believe that this interim final rule is
consistent with the regulatory philosophy and principles identified in
the Executive Order. In addition, the interim final rule is a
significant regulatory action as defined by the Executive Order and,
therefore, is subject to OMB review.
Regulatory Flexibility Act
I certify that these regulations will not have a significant
economic impact on a substantial number of small entities because they
will affect only a small number of federal employees who are members of
the Senior Biomedical Research Service.
List of Subjects in 42 CFR Part 24
Government employees, Health professions, Reporting and
recordkeeping requirements, wages.
Accordingly, the Department of Health and Human Services is
amending 42 CFR by adding a new Part 24, reading as follows:
PART 24--SENIOR BIOMEDICAL RESEARCH SERVICE
Sec.
24.1 Establishment.
24.2 Allocation.
24.3 Policy Board.
24.4 Eligibility.
24.5 Peer review.
24.6 Pay and compensation.
24.7 Performance appraisal system.
24.8 Applicability of provisions of Title 5, U.S. Code.
24.9 Removal from the Service.
24.10 Reporting.
Authority: Section 228(g) of the Public Health Service Act; 5
U.S.C. 301.
Sec. 24.1 Establishment.
There is established in the Public Health Service (PHS) a Senior
Biomedical Research Service (SBRS) consisting of members the maximum
number of which is prescribed by law.
Sec. 24.2 Allocation.
(a) The Secretary, within the number authorized in the PHS Act,
shall determine the number of SBRS slots to be allocated to each
participating Operating Division.
(b) The SBRS Policy Board may advise the Secretary to make
adjustments to the allocation at any time.
(c) The majority of the SBRS allocation is to be reserved for
recruitment. The remaining SBRS allocation may be used for the
retention of current employees.
(d) SBRS slots will be used judiciously, resulting in SBRS
appointments only where other senior-level appointing authorities are
not sufficient to recruit or retain scientific talent.
(e) The Secretary will ensure that SBRS slots are used in support
of high priority programs authorized by Congress and which directly
support the research goals and priorities of the Department.
Sec. 24.3 Policy Board.
The Secretary or his/her designee shall establish an SBRS Policy
Board to serve in an advisory capacity, recommending SBRS allocations
among the participating Operating Divisions, reviewing the operations
of the SBRS and ensuring consistent application of regulations,
policies, and procedural guidelines, and recommending changes to the
Secretary as necessary. Membership, to the extent possible, will
include SBRS eligibles nominated by their respective Operating
Divisions, will be weighted in proportion to Operating Divisions' SBRS
allocations, and will include representation from the Office of the
Secretary. The Secretary or his/her designee will select the board
membership and the Chair.
Sec. 24.4 Eligibility.
To be eligible for appointment to the Service an individual must
have a doctoral-level degree in biomedicine or a related field and must
meet the qualification standards prescribed by the U.S. Office of
Personnel Management for appointment to a position at GS-15 of the
General Schedule. In addition, the individual must be outstanding in
the field of biomedical research or clinical research evaluation.
Appointment to the Service will be made only to individuals actively
engaged in either biomedical research or clinical research evaluation.
(a) Outstanding in the field of biomedical research means an
individual who is actively engaged in peer-reviewed original biomedical
research and whose work in this area is considered by his or her peers
to be outstanding. In order to meet the eligibility criteria, an
individual must have conducted original peer-reviewed biomedical
research resulting in major accomplishments reflected by a steady and
current record of highly cited publications in peer-reviewed journals
of high stature. In addition, the individual should be the recipient of
major prizes and awards (such as visiting professorships and named
lectureships) in recognition of original contributions to research.
[[Page 6558]]
(b) Outstanding in the field of clinical research evaluation means
that an individual is actively engaged in clinical research evaluation
and is considered by his or her peers to be outstanding. In order to
meet the eligibility criteria, an individual, by force of his or her
own technical expertise, must be in a position to shape the course of
drug or device evaluation or exert a similar influence on the PHS
handling of other agents that may affect the public health. The
individual would normally have dealt with complex, precedent-setting
evaluation issues that involved significant scientific controversy, had
far reaching implications for clinical research or resulted in a
widespread economic effect in the health-care delivery system. In
addition, the individual should have been involved in the development
of scientific or regulatory guidelines for clinical research and been
the recipient of invitations to speak at or to chair major national or
international meetings and symposia.
Sec. 24.5 Peer review.
An individual may not be considered for appointment into the SBRS
unless his/her qualifications have been reviewed by a PHS peer review
committee and the committee has recommended appointment to the Service.
Sec. 24.6 Pay and compensation.
The SBRS is an ungraded system, with a single, flexible pay range
to include all members.
(a) Pay of the members of the Service shall be determined by the
Secretary or his/her designee.
(b) The pay of a member of the Service shall be not less than the
minimum rate payable for GS-15 of the General Schedule and shall not
exceed:
(1) The rate payable for level I of the Executive Schedule unless a
higher rate of pay is expressly approved on an individual basis by the
President, pursuant to 5 U.S.C. 5377(d)(2), or
(2) The rate payable for level II of the Executive Schedule unless
a higher rate of pay is expressly approved on an individual basis by
the Secretary.
(c) While the full pay range will be used, individual pay at the
higher end of the range will be used only as needed to recognize
individual scientific value and as necessary to recruit or retain an
exceptionally well-qualified scientist.
(d) The following factors will be used in establishing appropriate
pay rates for individual members:
(1) Impact of the individual on the scientific field;
(2) Recognition of the individual by the scientific community;
(3) Originality of the individual's ideas/work products;
(4) Specific ``clinical'' or highly technical skills of the
individual which are of benefit to the agency and which are in addition
to requirements of the basic scientific assignment;
(5) The individual's earnings and monetary benefits;
(6) Salary surveys of similar skills in pertinent labor markets;
and
(7) Other relevant factors.
(e) Annual adjustments to pay rates may be made effective on the
first day of the first pay period on or after January 1 of each
calendar year. The rate of such adjustments will be at the discretion
of the Secretary or his/her designee, except that the minimum rate
payable in the SBRS will be increased to the amount of the minimum rate
of the GS-15 of the General Schedule.
(f) Other pay adjustments will be made on an individual basis by
the Secretary or his/her designee.
(g) Except as provided in paragraph (h) of this section, new
appointees to the Service, who are not covered by the Civil Service
Retirement System, will be covered by the Federal Employees Retirement
System.
(h) Upon the request of a member who performed service in the
employ of an institution of higher education immediately prior to his
appointment as a member of the Service, and retains the right to make
contributions to the retirement system of such institution, the
Department of Health and Human Services may contribute an amount not to
exceed ten percent per annum of the member's basic pay to such
institution's retirement system on behalf of such member. A member who
participates in this program shall not be covered by any retirement
system established for employees of the United States under title 5,
United States Code.
Sec. 24.7 Performance appraisal system.
The members of the Service shall be subject to a performance
appraisal system which shall be designed to encourage excellence in
performance and shall provide for a periodic and systematic appraisal
of the performance of the members.
Sec. 24.8 Applicability of provisions of Title 5, U.S. Code.
(a) Appointments to the Service shall be made without regard to the
provisions of title 5, U.S. Code regarding appointments.
(b) Members of the Service shall not be covered by the following
provisions of title 5, U.S. Code:
(1) Subchapter I of Chapter 35 (relating to retention preference in
the event of reduction in force);
(2) Chapter 43, Performance Appraisal (and performance-based
actions);
(3) Chapter 51 (relating to classification);
(4) Subchapter III of Chapter 53, The General Schedule; and
(5) Chapter 75, Adverse Actions.
(c) Other provisions of Title 5 will be applied as administratively
determined by the Secretary or his/her designee.
Sec. 24.9 Removal from the Service.
(a) A member of the Service may be subject to disciplinary action,
including removal from the Service, for substandard performance of duty
as a member of the service, for misconduct, for reasons of national
security or for other reasons as determined by the Secretary.
(b) A member for whom disciplinary action is proposed is entitled
to:
(1) Written notice of the proposed action and the basis therefor;
(2) A reasonable opportunity to answer the notice of proposed
action both orally and in writing;
(3) The right to be represented by an attorney or other
representative in making such answer; and
(4) A written decision on the proposal.
(c) The decision may be made by an official with delegated
authority to take such action, but in no case may the official be at a
level below the head of the Operating Division where the member is
assigned.
(d) A member who is separated from the Service involuntarily and
without cause and who, immediately prior to his appointment to the
Service, was a career appointee in the civil service or the Senior
Executive Service, may be appointed to a position in the competitive
civil service at grade GS-15 of the General Schedule. Such an
appointment may be made by the Secretary or his/her designee without
regard to the provisions of title 5, U.S. Code regarding appointments
in the civil service.
(e) A member who is separated from the Service involuntarily and
without cause and who, immediately prior to appointment to the Service,
was not a career appointee in the civil service or the Senior Executive
Service may be appointed to a position in the excepted civil service at
grade GS-15 of the General Schedule for a period not to exceed two
years.
(f) There shall be no right to further review of the final decision
on a disciplinary action. At his/her discretion, the Secretary may
review an
[[Page 6559]]
action taken under this section and may reduce, suspend, or overrule
the action taken.
(g) A member of the Service may be removed from the Service for
such other reasons as may be prescribed by the Secretary.
Sec. 24.10 Reporting.
For each quarter of the first year of implementation and annually
thereafter, participating Operating Divisions shall maintain reports on
the operation of the SBRS. At a minimum, these reports should include
the number of appointees, the source of those appointees, their
earnings immediately prior to appointment, and their SBRS pay at
appointment.
Dated: October 10, 1995.
Donna E. Shalala,
Secretary.
[FR Doc. 96-3739 Filed 2-20-96; 8:45 am]
BILLING CODE 4150-04-M
Complete official Federal Register PDF
FR Doc. 96-3721 Hexythiazox; Pesticide Tolerance
[Federal Register Volume 61, Number 35 (Wednesday, February 21, 1996)]
[Rules and Regulations]
[Pages 6551-6554]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-3721]
-----------------------------------------------------------------------
[[Page 6552]]
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 180
[PP 5F4476/R2203; FRL-5350-6]
RIN 2070-AB78
Hexythiazox; Pesticide Tolerance
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final Rule.
-----------------------------------------------------------------------
SUMMARY: This document establishes a tolerance for the combined
residues of the acaricide hexythiazox, trans-5-(4-chlorophenyl)-N-
cyclohexyl-4-methyl-2-oxothiazolidine-3-carboxamide and its metabolites
containing the (4-chlorophenyl)-4-methyl-2-oxo-3-thiazolidine moiety
(expressed as parts per million of the parent compound), in or on the
raw agricultural commodity apples. Gowan Company requested this
regulation to establish a maximum permissible level for residues of the
acaricide pursuant to the Federal Food, Drug, and Cosmetic Act (FFDCA).
EFFECTIVE DATE: This regulation becomes effective February 21, 1996.
ADDRESSES: Written objections and hearing requests, identified by the
docket control number [PP 5F4476/R2203], may be submitted to: Hearing
Clerk (1900), Environmental Protection Agency, Rm. M3708, 401 M St.,
SW., Washington, DC 20460. A copy of any objections and hearing
requests filed with the Hearing Clerk should be identified by the
docket control number and submitted to: Public Response and Program
Resources Branch, Field Operations Division (7506C), Office of
Pesticide Programs, Environmental Protection Agency, 401 M St., SW.,
Washington, DC 20460. In person, bring copy of objections and hearing
requests to: Rm. 1132, CM #2, 1921 Jefferson Davis Highway, Arlington,
VA. Fees accompanying objections shall be labeled ``Tolerance Petition
Fees'' and forwarded to EPA Headquarters Accounting Operations Branch,
OPP (Tolerance Fees), P.O. Box 360277M, Pittsburgh, PA 15251.
A copy of objections and hearing requests filed with the Hearing
Clerk may also be submitted electronically by sending electronic mail
(e-mail) to: [email protected]. Copies of objections and
hearing requests must be submitted as an ASCII file avoiding the use of
special characters and any form of encryption. Copies of objections and
hearing requests will also be accepted on disks in WordPerfect in 5.1
file format or ASCII file format. All copies of objections and hearing
requests in electronic form must be identified by the docket number [PP
5F4476/R2203]. No Confidential Business Information (CBI) should be
submitted through e-mail. Electronic copies of objections and hearing
requests on this rule may be filed online at many Federal Depository
Libraries. Additional information on electronic submissions can be
found below in this document.
FOR FURTHER INFORMATION CONTACT: By mail: George LaRocca, Product
Manager (PM) 13, Registration Division (7505C), Office of Pesticide
Programs, Environmental Protection Agency, 401 M St., SW., Washington,
DC 20460. Office location, telephone number, and e-mail address: Rm.
204, CM #2, 1921 Jefferson Davis Highway, Arlington, VA, (703) 305-
6100; e-mail: [email protected].
SUPPLEMENTARY INFORMATION: EPA issued a notice, published in the
Federal Register of May 3 1995 (60 FR 21815), which announced that
Gowan Company, P.O. Box 5569, Yuma, AZ 85366-5569, had submitted a
pesticide petition (PP 5F4476) to EPA requesting the Administrator,
pursuant to section 408(d) of the Federal Food, Drug, and Cosmetic Act
(FFDCA), 21 U.S.C. 346a(d), to establish a tolerance for the combined
residues of the acaricide hexythiazox, trans-5-(4-chlorophenyl)-N-
cyclohexyl-4-methyl-2-oxothiazolidine-3-carboxamide and its metabolites
containing the (4-chlorophenyl)-4-methyl-2-oxo-3-thiazolidine moiety
(expressed as parts per million of the parent compound), in or on the
raw agricultural commodity apples at 0.05 parts per million (ppm). In a
letter dated October 10, 1995, Gowan requested that the pesticide
petition be amended by proposing a lower tolerance on apples at 0.02
ppm. No comments were received in response to the notice of filing.
The data submitted in support of this tolerance and other relevant
material have been reviewed. The toxicological and metabolism data
considered in support of this tolerance are discussed in detail in a
related document published in the Federal Register of April 26, 1989
(54 FR 17947).
The Agency has classified hexythiazox as a class C (possible human)
carcinogen based on a significantly increased incidence of
hepatocellular carcinomas (p=0.028), and adenomas/carcinomas combined
(p=0.024) in female mice at the highest dose tested (1,500 ppm) when
compared to the controls as well as a significantly increased (p<0.001)
incidence of preneo-plastic hepatic nodules in both males and females
at the highest dose tested (1,500 ppm). The decision supporting a
Category C classification (rather than a Category B) was based
primarily on the fact that only one species was affected (mouse),
mutagenicity assays did not support upgrading to a B classification,
and structure-activity relationship of hexythiazox to other compounds
supported a C classification. In classifying hexythiazox as a Category
C carcinogen, the Agency concluded that a quantitative estimate of the
carcinogenic potential for humans should be calculated because of the
increased incidence of malignant liver tumors in the female mouse.
Thus, a Q1* of 3.9 x 10-2 (mg/kg/day)-1 in human
equivalents has been calculated.
A full review of the data indicates that although hexythiazox is a
carcinogen in mice, the risks would be extremely small from the
proposed use on apples. Estimated dietary carcinogenic risk to the
general population based on the highly conservative assumption that all
apples are treated with hexythiazox and would bear residues at the
proposed tolerance level is estimated to be 2 x 10-6. This is
slightly higher than 1 x 10-6 a level which is generally
considered of negligible risk concern by the Agency. The Agency
believes that actual exposure and risk would be lower. The basis for
this is that the risk estimate reflects a worst-case dietary exposure
because it assumes that 100 percent of all apples consumed in the
United States are treated with hexythiazox and that all quantities of
the food consumed would bear residues levels as high as the proposed
tolerance. In reality, the Agency knows that all apples would not be
treated with this pesticide and expect that even apples receiving
maximum treatment will have residues far below tolerance level. For
example, in field trials conducted using application rates 10 times the
label amount, residues in apples still did not exceed the tolerance
level. Further, the maximum residue level in apple juice would be
expected to be less than 50 percent of the residue level in whole
fruit.
Based on an assessment of the cancer risks of the proposed use of
hexythiazox, the Agency believes that the proposed use of hexythiazox
on apples will pose an extremely small risk to humans.
A chronic dietary exposure/risk assessment has been performed for
hexythiazox using a Reference Dose (RfD) of 0.025 mg/kg-bwt/day. The
RfD was based on a NOEL of 2.5 mg/kg/day from a 1-year dog feeding
study and a safety factor of 100. The endpoint effect of concern was
hypertrophy of the adrenal cortex in both sexes, decreased red blood
cell counts, hemoglobin content and hematocrit in males. The
[[Page 6553]]
analysis was performed using tolerance level residues and 100% crop
treated information. The exposure for established tolerances and the
current action is estimated at 0.000051 mg/kg-bwt/day and utilizes 0.2%
of the RfD for the U.S. population. For non-nursing infants less than 1
year old (the sub-group population with the highest exposure level),
the exposure for established tolerances and the current action is
estimated at 0.000600 mg/kg-bwt/day and utilizes 2.4% of the RfD.
Generally speaking, the Agency has no concern if dietary exposure is
less than the RfD for all published and proposed tolerances.
The nature and metabolism of the chemical in plants and animals for
the use is adequately understood. Since the petitioner has included the
label restriction ``Do not graze or feed livestock on cover crops
growing in treated areas'' and hexythiazox animal feeding studies
indicate that there is no reasonable expectation of finite residue
transfer to meat, milk, poultry and eggs, no secondary residues in meat
or milk are expected. Adequate analytical methodology (gas liquid
chromatography with an electron capture detector) is available for
enforcement purposes. The enforcement methodology has been submitted to
the Food and Drug Administration for publication in the Pesticide
Analytical Manual, Vol. II (PAM II). Because of the long lead time for
publication of the method in PAM II, the analytical methodology is
being made available in the interim to anyone interested in pesticide
enforcement when requested from Calvin Furlow, Public Response and
Program Resource Branch, Field Operations Division (7506C), Office of
Pesticide Programs, U.S. Environmental Protection Agency, 401 M St.,
SW., Washington, DC 20460. Office location and telephone number: Rm.
1132, CM #2, 1921 Jefferson Davis Hwy., Arlington, VA, (703) 305-5232.
The tolerances established by amending 40 CFR part 180 will be
adequate to cover residues in or on apples. There are presently no
actions pending against the continued registration of this chemical.
Based on the information and data considered, the Agency has determined
that the tolerance established by amending 40 CFR 180 would protect the
public health. Therefore, it is proposed that the tolerance be
established as set forth below.
Any person adversely affected by this regulation may, within 30
days after publication of this document in the Federal Register, file
written objections and/or request a hearing with the Hearing Clerk, at
the address given above (40 CFR 178.20). A copy of the objections and/
or hearing requests filed with the Hearing Clerk should be submitted to
the OPP docket for this rulemaking. The objections submitted must
specify the provisions of the regulation deemed objectionable and the
grounds for the objections (40 CFR 178.25). Each objection must be
accompanied by the fee prescribed by 40 CFR 180.33(i). If a hearing is
requested, the objections must include a statement of the factual
issue(s) on which a hearing is requested, the requestor's contentions
on such issues, and a summary of any evidence relied upon by the
objector (40 CFR 178.27). A request for a hearing will be granted if
the Administrator determines that the material submitted shows the
following: There is genuine and substantial issue of fact; there is a
reasonable possibility that available evidence identified by the
requestor would, if established, resolve one or more of such issues in
favor of the requestor, taking into account uncontested claims or facts
to the contrary; and resolution of the factual issue(s) in the manner
sought by the requestor would be adequate to justify the action
requested (40 CFR 178.32).
A record has been established for this rulemaking under docket
number [PP 5F4476/R2203] (including comments and data submitted
electronically as described below). A public version of this record,
including printed, paper version of electronic comments, which does not
include any information claimed as CBI, is available for inspection
from 8 a.m. to 4:30 p.m., Monday through Friday, excluding legal
holidays. The public record is located in Room 1132 of the Public
Response and Program Resources Branch, Field Operations Division
(7506C), Office of Pesticide Programs, Environmental Protection Agency,
Crystall Mall #2, 1921 Jefferson Davis Highway, Arlington, VA.
Electronic comments can be sent directly to EPA at:
opp-docket epamail.epa.gov.
Electronic comments must be submitted as an ASCII file avoiding the
use of special characters and any form of encryption.
The official record for this rulemaking, as well as the public
version, as described above will be kept in paper form. Accordingly,
EPA will transfer all comments received electronically into printed,
paper form as they are received and will place the paper copies in the
official rulemaking record which will also include all comments
submitted directly in writing. The official rulemaking record is the
paper record maintained at the address in ``ADDRESSES'' at the
beginning of this document.
Under Executive Order 12866 (58 FR 51735, October 4, 1993), the
Agency must determine whether the regulatory action is ``significant''
and therefore subject to all the requirements of the Executive Order
(i.e., Regulatory Impact Analysis, review by the Office of Management
and Budget (OMB)). Under section 3(f), the order defines
``significant'' as those actions likely to lead to a rule: (1) Having
an annual effect on the economy of $100 million or more, or adversely
and materially affecting a sector of the economy, productivity,
competition, jobs, the environment, public health or safety, or State,
local or tribal governments or communities (also known as
``economically significant''); (2) creating serious inconsistency or
otherwise interfering with an action taken or planned by another
agency; (3) materially altering the budgetary impacts of entitlement,
grants, user fees, or loan programs; or (4) raising novel legal or
policy issues arising out of legal mandates, the President's
priorities, or the principles set forth in this Executive Order.
Pursuant to the terms of this Executive Order, EPA has determined
that this rule is not ``significant'' and is therefore not subject to
OMB review.
Pursuant to the requirements of the Regulatory Flexibility Act
(Pub. L. 96-354, 94 Stat. 1164, 5 U.S.C. 601-612), the Administrator
has determined that regulations establishing new tolerances or raising
tolerance levels or establishing exemptions from tolerance requirements
do not have a significant economic impact on a substantial number of
small entities. A certification statement to this effect was published
in the Federal Register of May 4, 1981 (46 FR 24950).
List of Subjects in 40 CFR Part 180
Environmental protection, Administrative practice and procedure,
Agricultural commodities, Pesticides and pests, Reporting and
recordkeeping requirements.
Dated: February 8, 1996.
Stephen L. Johnson,
Director, Registration Division, Office of Pesticide Programs.
Therefore, 40 CFR part 180 continues to read as follows:
PART 180--[AMENDED]
1. The authority citation of part 180 continues to read as follows:
Authority: 21 U.S.C. 346a.
[[Page 6554]]
2. By amending Sec. 180.448 in the table therein and alphabetically
inserting an entry for apples, to read as follows:
Sec. 180.448 Hexythiazox; tolerances for residues.
* * * * *
------------------------------------------------------------------------
Commodity Parts per million
------------------------------------------------------------------------
Apples.................................... 0.02
* * * * *
------------------------------------------------------------------------
[FR Doc. 96-3721 Filed 2-20-96; 8:45 am]
BILLING CODE 6560-50-F
Complete official Federal Register PDF
FR Doc. 96-3698 Recreational Vessel Fees
[Federal Register Volume 61, Number 35 (Wednesday, February 21, 1996)]
[Rules and Regulations]
[Pages 6542-6543]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-3698]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF TRANSPORTATION
Coast Guard
33 CFR Part 1
[CGD 95-055]
RIN 2115-AF18
Recreational Vessel Fees
AGENCY: Coast Guard, DOT.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: As part of the President's Regulatory Reinvention Initiative
review, the Coast Guard is removing obsolete regulations requiring
payment of recreational vessel fees (RVF). The High Seas Driftnet
Fisheries Enforcement Act of 1992 repealed the authority for RVF
beginning with fiscal year 1995. The Coast Guard stopped collecting the
fees on October 1, 1994. The RVF regulations are no longer valid and
are being removed from the Code of Federal Regulations.
EFFECTIVE DATE: February 21, 1996.
ADDRESSES: Unless otherwise indicated, documents referred to in this
preamble are available for inspection or copying at the office of the
Executive Secretary, Marine Safety Council (G-LRA/3406), U.S. Coast
Guard Headquarters, 2100 Second Street SW., room 3406, Washington, DC
20593-0001 between 8 a.m. and 3 p.m., Monday through
[[Page 6543]]
Friday, except Federal holidays. The telephone number is (202) 267-
1477.
FOR FURTHER INFORMATION CONTACT: Carlton Perry, Project Manager,
Auxiliary, Boating, and Consumer Affairs Division, (202) 267-0979.
SUPPLEMENTARY INFORMATION:
Regulatory History
The Omnibus Budget Reconciliation Act of 1990 (the Act) amended 46
U.S.C. 2110 and required the Secretary of Transportation to establish a
fee or charge for recreational vessels and to collect it annually in
fiscal years (FY) 1991 through 1995 from the vessel owner or operator.
The Act applied to recreational vessels greater than 16 feet in length,
operated on the navigable waters of the United States where the Coast
Guard has a presence. The Coast Guard issued regulations in 33 CFR
subpart 1.30 to implement the Act, after notice and public comment (56
FR 30244; July 1, 1991).
Section 501 of the High Seas Driftnet Fisheries Enforcement Act
(Pub. L. 102-582), enacted November 2, 1992, amended 46 U.S.C.
2110(b)(1) to reduce the number of recreational vessels subject to the
annual fee by changing the vessel length categories subject to the fee
for fiscal years 1993 and 1994, and by eliminating the fee on October
1, 1994. The Coast Guard revised 33 CFR subpart 1.30 by publishing an
interim final rule (58 FR 8884; February 17, 1993) and final rule (59
FR 22129; April 29, 1994).
As part of the President's Regulatory Reinvention Initiative
review, the Coast Guard is removing the regulations which established a
recreational vessel fee (RVF). This rule is the final action to
implement Pub. L. 102-582. It removes the RVF regulations in 33 CFR
Subpart 1.30 which are no longer necessary.
Because the fees were eliminated by Pub. L. 102-582 on 1 October,
1994, and the fees have not been collected since then, the Coast Guard
finds good cause, under 5 U.S.C. 553 (b)(3)(B) and (d)(3), why notice
and public procedure before publication of the rule are unnecessary and
that the rule should be made effective in less than 30 days after
publication.
Regulatory Evaluation
This rule is not a significant regulatory action under section 3(f)
of Executive Order 12866 and does not require an assessment of
potential costs and benefits under section 6(a)(3) of that order, nor
has it been reviewed by the Office of Management and Budget. It is not
significant under the regulatory policies and procedures of the
Department of Transportation (DOT) (44 FR 11040; February 26, 1979).
The Coast Guard expects the economic impact of this rule to be so
minimal that a full Regulatory Assessment is unnecessary.
Collection of Information
The information collection approved for 33 CFR subpart 1.30 by the
Office of Management and Budget (OMB) under section 3504(h) of the
Paperwork Reduction Act (44 U.S.C. 3501 et seq.) expired on January 1,
1995. The subpart number was 33 CFR subpart 1.30 and the former
corresponding OMB approving number was OMB Control Number 2115-0588.
This rule contains no collection-of-information requirements under the
Paperwork Reduction Act.
Federalism
The Coast Guard has analyzed this rule in accordance with the
principles and criteria of Executive Order 12612 and has determined
that this rule does not have sufficient implications for federalism 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.e(34)(a) of Commandant
Instruction M16475.1B, 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 1
Administrative practice and procedure, Authority delegations
(Government agencies), Freedom of information, Penalties, Fees.
Subpart 1.30--[Removed]
Under the authority of 14 U.S.C. 633, subpart 1.30 is removed.
Dated: February 5, 1996.
Rudy K. Peschel,
Rear Admiral, U.S. Coast Guard Chief, Office of Navigation Safety and
Waterway Services.
[FR Doc. 96-3698 Filed 2-20-96; 8:45 am]
BILLING CODE 4910-14-M
Complete official Federal Register PDF
FR Doc. 96-3670 Colorado Regulatory Program
[Federal Register Volume 61, Number 35 (Wednesday, February 21, 1996)]
[Rules and Regulations]
[Pages 6509-6511]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-3670]
-----------------------------------------------------------------------
DEPARTMENT OF THE INTERIOR
30 CFR Part 906
[SPATS No. CO-001-FOR]
Colorado Regulatory Program
AGENCY: Office of Surface Mining Reclamation and Enforcement (OSM),
Interior.
ACTION: Final rule; approval of amendment and removal of condition of
program approval.
-----------------------------------------------------------------------
SUMMARY: The Secretary of Interior is announcing the approval of an
amendment to the Colorado regulatory program (hereinafter referred to
as the ``Colorado program'') under the Surface Mining Control and
Reclamation Act of 1977 (SMCRA) and the removal of the remaining
condition of program approval. The Colorado revisions pertain to the
recovery of costs and expenses, including attorney's fees, incurred in
connection with administrative and judicial review proceedings under
the Colorado program. The amendment revised the Colorado program to be
consistent with SMCRA and the corresponding Federal regulations.
EFFECTIVE DATE: February 21, 1996.
FOR FURTHER INFORMATION CONTACT:
James F. Fulton, Telephone: (303) 672-5524.
SUPPLEMENTARY INFORMATION:
I. Background on the Colorado Program
On December 15, 1980, the Secretary of the Interior conditionally
approved the Colorado program. General background information on the
Colorado program, including the Secretary's findings, the disposition
of comments, and the conditions of approval of the Colorado program can
be found in the December 15, 1980, Federal Register (45 FR 82173).
Subsequent actions concerning Colorado's program and program amendments
can be found at 30 CFR 906.11, 906.15, 906.16, and 906.30.
II. Proposed Amendment
By letter dated November 20, 1995, Colorado submitted a proposed
amendment to its program (administrative record No. CO-675) pursuant to
SMCRA (30 U.S.C. 1201 et seq.). Colorado submitted the proposed
amendment in response to the condition of program approval at 30 CFR
906.11(mm). Colorado proposed to revise 2 CCR 407-2, Rules 5.03.6 and
5.03.6(4)(e), concerning costs, expenses, and attorney's fees.
OSM announced receipt of the proposed amendment in the December 7,
1995, Federal Register (60 FR 62789), provided an opportunity for a
public hearing or meeting on its substantive adequacy, and invited
public comment on its adequacy (administrative record No. CO-675-2).
Because no one requested a public hearing or meeting, none was held.
The public comment period ended on January 8, 1996.
III. Secretary's Findings
As discussed below, the Secretary, in accordance with SMCRA and 30
CFR 732.15 and 732.17, finds that the proposed program amendment
submitted by Colorado on November 20, 1995, is no less effective than
the corresponding Federal regulations and no less stringent than SMCRA.
Accordingly, the Secretary approves the proposed amendment.
1. Rule 5.03.6, Awarding of Costs, Expenses, and Attorney Fees Incurred
in Seeking an Award
Existing Rule 5.03.6 authorizes the Colorado Mined Land Reclamation
Board (Board), under certain circumstances, to assess and award costs,
expenses, and attorney fees to parties of Board proceedings resulting
in Board decisions and orders or to parties of administrative
proceedings under the Colorado Surface Coal Mining Reclamation Act. In
response to the condition of original program approval at 30 CFR
906.11(mm)(1)(ii) (finding No. 4(k), 45 FR 82173, 82194, December 15,
1980), Colorado proposed to revise Rule 5.03.6 to specify that the
costs, expenses, and attorney fees to be awarded to a requesting party
are those incurred by the party seeking the award.
Section 525(e) of SMCRA allows for an award of a sum equal to the
aggregate amount of all costs, expenses, and attorney fees determined
by the Secretary of the Interior to have been reasonably incurred by a
person for or in connection with his participation in administrative
proceedings. In addition, the Federal regulations at 43 CFR 4.1295(b)
require that an award may include all costs and expenses, including
attorneys' fees and expert witness fees, reasonably incurred in seeking
the award.
Proposed Rule 5.03.6 differs from 43 CFR 4.1295(b) only in that it
does not specifically address expert witness fees. However, this is not
a substantive difference because the ``costs and expenses'' requirement
of the proposed rule includes such fees. For this reason, the Secretary
finds that Colorado's proposed revision to Rule 5.03.6, which requires
that awarded costs, expenses, and attorney fees be restricted to those
incurred by the requesting party in seeking the award, is no less
stringent than section 525(e) of SMCRA, and no less effective than the
corresponding requirement of the corresponding Federal regulation at 43
CFR 4.1295(b). The Secretary approves the revised rule and removes the
condition of original program approval codified at 30 CFR
906.11(mm)(1)(ii).
2. Rule 5.03.6(4), Awarding Costs, Expenses, and Attorney Fees From the
Division to Administrative Proceeding Participants Other Than the
Permittee
In response to the condition of original program approval at 30 CFR
906.11(mm)(2) (finding No. 4(k), 45 FR 82173, 82194, December 15,
1980), Colorado proposed to add newly-created paragraph (e) to Rule
5.03.6(4), which would allow appropriate costs and expenses, including
attorneys' fees, to be awarded from the Colorado Department of Natural
Resources, Division of Minerals and Geology (Division) to participants,
other than the permittee or his representative, in ``administrative
proceedings'' under the Colorado Surface Coal Mining Reclamation Act
(Act).
The corresponding Federal regulation at 43 CFR 4.1294(b) allows
appropriate costs and expenses, including attorneys' fees, to be
awarded from OSM to participants, other than a permittee or his
representative, in ``any proceeding'' under SMCRA. ``Any proceeding''
includes both administrative and judicial proceedings.
Proposed Rule 5.03.6(4)(e) differs from 43 CFR 4.1294(b) in that it
restricts the awarding of costs, expenses, and attorneys' fees to those
incurred in
[[Page 6510]]
administrative proceedings, rather than to those incurred in both
administrative and judicial proceedings. However, Colorado's statutory
language at section 34-33-128(4) of the Act, concerning judicial
review, allows the court, at the request of any party to a proceeding
under that section, to assess such costs and expenses against any party
as the court deems just and proper. Therefore, proposed Rule
5.03.6(4)(e) and section 34-33-128(4) of the Act, taken together, allow
for appropriate costs and expenses, including attorneys' fees, to be
awarded from the Division to participants in both administrative and
judicial proceedings under the Act.
For this reason, the Secretary finds that proposed Rule
5.03.6(4)(e), when considered along with section 34-33-128(4) of the
Act, is consistent with and no less effective than the Federal
regulation at 43 CFR 4.1294(b). The Secretary approves the revised rule
and removes the condition of original program approval codified at 30
CFR 906.11(mm)(2).
3. No Colorado Counterpart Rules, Awarding Costs, Expenses, and
Attorney Fees From the Division to Administrative Proceeding
Participants Other Than the Permittee
On November 12, 1993 (administrative record No. CO-582), Colorado
requested that OSM conduct an informal review regarding the sufficiency
of Colorado's rules in addressing condition 30 CFR 906.11(mm). In a
letter dated December 22, 1993 (administrative record No. CO-599), OSM
notified Colorado that, upon further review and analysis, OSM
determined that conditions 30 CFR 906.11(1) (i) and (iii) are invalid
and not applicable to the Colorado program. For the reasons discussed
below, the Secretary is now removing the conditions of original program
approval codified at 30 CFR 906.11(mm)(1) (i) and (iii) that it placed
on the Colorado program on December 15, 1980 (finding No. 4(k), 45 FR
82173, 82194).
a. Awarding the costs and expenses regarding alleged discriminatory
acts. At 30 CFR 906.11(mm)(1)(i), OSM required Colorado to ``submit * *
* fully implemented regulations containing provisions for * * * [c]osts
and expenses regarding discriminatory acts, pursuant to 30 CFR Part
830, as in 43 CFR 4.1294(a)(2).''
However, State programs are not required to include counterparts to
the employee protection provisions of 30 CFR Part 865 (formerly Part
830) and, as such, there is no need for a State provision allowing the
award of costs and expenses incurred in connection with proceedings
pursuant to these rules. Accordingly, the lack of a State counterpart
provision in the Colorado permanent program to the Federal regulation
at 43 CFR 4.1294 regarding employee protection is not inconsistent with
the Federal regulatory program. For this reason, the Secretary removes
the condition of original program approval codified at 30 CFR
906.11(mm)(1)(i).
b. Right to appeal costs and expenses awarded in an administrative
proceeding. At 30 CFR 906.11(mm)(1)(iii), OSM required Colorado to
``submit * * * fully implemented regulations containing provisions for
* * * the administrative appeal of a decision as in 43 CFR 4.1296.''
OSM has determined that condition 30 CFR 906.11(mm)(1)(iii) is
inappropriate and not applicable to the Colorado permanent program
because of the differences that exists between the Colorado and Federal
administrative review processes. The Federal administrative review
process consists of two tiers of review, which are set forth at section
525(e) of SMCRA. They consist of review by the Secretary of the
Interior, and review under 43 CFR 4.1290 through 4.1296 of the Federal
regulations, which consists of review of the Secretary of the
Interior's decisions by either the Interior Board of Land Appeals
(IBLA) or an administrative law judge. Conversely, the only level of
administrative review and only administrative review body under the
Colorado program, which is set forth at Rule 5.03.6, is the Colorado
Mined Land Reclamation Board (Board). Thus, a State program counterpart
to 43 CFR 4.1296 is unnecessary. For this reason, the Secretary removes
the condition of original program approval codified at 30 CFR
906.11(mm)(1)(iii).
IV. Summary and Disposition of Comments
Following are summaries of all substantive written comments on the
proposed amendment that were received by OSM, and OSM's responses to
them.
1. Public Comments
OSM invited public comments on the proposed amendment, but none
were received.
2. Federal Agency Comments
Pursuant to 732.17(h)(11)(i), OSM solicited comments on the
proposed amendment from various Federal agencies with an actual or
potential interest in the Colorado program.
The U.S. Forest Service responded on December 15, 1995, that it had
no comments on the proposed amendment (administrative record No. CO-
675-3).
The U.S. Natural Resources Conservation Service responded on
December 20 and 21, 1995, that it had no comments on the proposed
amendment (administrative record No. CO-675-4).
The U.S. Army Corps of Engineers responded on December 27, 1995,
that it had found the proposed amendment to be satisfactory
(administrative record No. CO-675-5).
3. Environmental Protection Agency (EPA) Concurrence and Comments
Pursuant to 30 CFR 732.17(h)(11)(ii), OSM is required to solicit
the written concurrence of EPA with respect to those provisions of the
proposed program amendment that relate to air or water quality
standards promulgated under the authority of the Clean Water Act (33
U.S.C. 1251 et seq.) or the Clean Air Act (42 U.S.C. 7401 et seq.).
None of the revisions that Colorado proposed to make in its
amendment pertain to air or water quality standards. Therefore, OSM did
not request EPA's concurrence.
Pursuant to 732.17(h)(11)(i), OSM solicited comments on the
proposed amendment from EPA (administrative record No. CO-675-1). It
did not respond to OSM's request.
4. State Historic Preservation Officer (SHPO) and the Advisory Council
on Historic Preservation (ACHP)
Pursuant to 30 CFR 732.17(h)(4), OSM solicited comments on the
proposed amendment from the SHPO and ACHP (administrative record No.
CO-675-1). Neither SHPO nor ACHP responded to OSM's request.
V. Secretary's Decision
Based on the above findings, the Secretary approves Colorado's
proposed amendment as submitted on November 20, 1995. Because this
amendment fully satisfies the requirements of the condition of program
approval at 30 CFR 906.11(mm), the Secretary is also removing this
condition.
The Secretary, as discussed in: finding No. 1, approves Rule
5.03.6, concerning awarding of costs, expenses, and attorney fees
incurred in seeking an award and removes the condition of program
approval at 30 CFR 906.11(mm)(1)(ii); and finding No. 2, approves Rule
5.03.6(4)(e), awarding costs, expenses, and attorney fees from the
Division to administrative proceeding participants other than the
permittee and removes the condition of
[[Page 6511]]
program approval at 30 CFR 906.11(mm)(2); and finding No. 3, removes
the conditions of program approval at 30 CFR 906.11(mm)(l) (i) and
(iii) because there are no requirements for State counterparts to the
Federal regulations concerning (1) costs and expenses regarding
discriminatory acts and (2) the administrative review process.
The Secretary approves the rules as proposed by Colorado with the
provision that they be fully promulgated in identical form to the rules
submitted to and reviewed by OSM and the public.
The Federal regulations at 30 CFR Part 906.11 and 906.15, codifying
decisions concerning the Colorado program, are being amended to
implement this decision. This final rule is being made effective
immediately to expedite the State program amendment process and to
encourage States to bring their programs into conformity with the
Federal standards without undue delay. Consistency of State and Federal
standards is required by SMCRA.
VI. Procedural Determinations
1. Executive Order 12866
This rule is exempted from review by the Office of Management and
Budget (OMB) under Executive Order 12866 (Regulatory Planning and
Review).
2. Executive Order 12778
The Department of the Interior has conducted the reviews required
by section 2 of Executive Order 12778 (Civil Justice Reform) and has
determined that this rule meets the applicable standards of subsections
(a) and (b) of that section. However, these standards are not
applicable to the actual language of State regulatory programs and
program amendments since each such program is drafted and promulgated
by a specific State, not by OSM. Under sections 503 and 505 of SMCRA
(30 U.S.C. 1253 and 1255) and the Federal regulations at 30 CFR 730.11,
732.15, and 732.17(h)(10), decisions on proposed State regulatory
programs and program amendments submitted by the States must be based
solely on a determination of whether the submittal is consistent with
SMCRA and its implementing Federal regulations and whether the other
requirements of 30 CFR Parts 730, 731, and 732 have been met.
3. National Environmental Policy Act
No environmental impact statement is required for this rule since
section 702(d) of SMCRA (30 U.S.C. 1292(d)) provides that agency
decisions on proposed State regulatory program provisions do not
constitute major Federal actions within the meaning of section
102(2)(C) of the National Environmental Policy Act (42 U.S.C.
4332(2)(C)).
4. Paperwork Reduction Act
This rule does not contain information collection requirements that
require approval by OMB under the Paperwork Reduction Act (44 U.S.C.
3507 et seq.).
5. Regulatory Flexibility Act
The Department of the Interior has determined that this rule will
not have a significant economic impact on a substantial number of small
entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.).
The State submittal that is the subject of this rule is based upon
counterpart Federal regulations for which an economic analysis was
prepared and certification made that such regulations would not have a
significant economic effect upon a substantial number of small
entities. Accordingly, this rule will ensure that existing requirements
previously promulgated by OSM will be implemented by the State. In
making the determination as to whether this rule would have a
significant economic impact, the Department relied upon the data and
assumptions for the counterpart Federal regulations.
List of Subjects in 30 CFR Part 906
Intergovernmental relations, Surface mining, Underground mining.
Dated: February 13, 1996.
Bob Armstrong,
Assistant Secretary, Land and Minerals Management.
For the reasons set out in the preamble, Title 30, chapter VII,
subchapter T, part 906 of the Code of Federal Regulations is amended as
set forth below:
PART 906--COLORADO
1. The authority citation for part 906 continues to read as
follows:
Authority: 30 U.S.C. 1201 et seq.
Sec. 906.11 [Removed]
2. Section 906.11 is removed.
3. Section 906.15 is amended by adding paragraph (t) to read as
follows:
Sec. 906.15 Approval of regulatory program amendments.
* * * * *
(t) The following rules, as submitted to OSM on November 20, 1995,
are approved effective February 21, 1996:
Awarding of costs, expenses, and attorney fees incurred in seeking
an award--Rule 5.03.6;
Awarding costs, expenses, and attorney fees from the Division of
Minerals and Geology to administrative proceeding participants other
than the permittee--Rule 5.03.6(4)(e).
[FR Doc. 96-3670 Filed 2-20-96; 8:45 am]
BILLING CODE 4310-05-M
Complete official Federal Register PDF
FR Doc. 96-3669 Navajo Nation, Hopi Tribe, and Crow Tribe Abandoned Mine Land Reclamation (AMLR) Plans
[Federal Register Volume 61, Number 35 (Wednesday, February 21, 1996)]
[Rules and Regulations]
[Pages 6507-6509]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-3669]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF THE INTERIOR
Office of Surface Mining Reclamation and Enforcement
30 CFR Part 756
Navajo Nation, Hopi Tribe, and Crow Tribe Abandoned Mine Land
Reclamation (AMLR) Plans
AGENCY: Office of Surface Mining Reclamation and Enforcement (OSM),
Interior.
ACTION: Final rule; technical amendment.
-----------------------------------------------------------------------
SUMMARY: Office of Surface Mining Reclamation and Enforcement (OSM) is
making technical amendments to promote consistency with the
codification that OSM has used for primacy States, OSM is changing the
codification of the sections approving the AMLR plans and subsequent
amendments for the Hopi Tribe and Crow Tribe and is creating sections
for required amendments to the Navajo Nation, Hopi Tribe, and Crow
Tribe AMLR plans. OSM is also making minor editorial changes.
EFFECTIVE DATE: February 21, 1996.
FOR FURTHER INFORMATION CONTACT:
John Trelease, Office of Technology, Development, and Transfer, OSM,
1951 Constitution Ave., NW., Washington, DC 20240, Telephone: (202)
208-2617.
SUPPLEMENTARY INFORMATION:
I. Background
In accordance with 30 CFR Part 884, OSM processes AMLR plans and
amendments to these plans, which are submitted by the States and Indian
tribes for OSM review and approval.
To promote consistency in codification of OSM's approvals of State
and Indian Tribe AMLR plans and plan amendments and OSM-required plan
amendments, OSM is amending the
[[Page 6508]]
Indian lands program provisions at Chapter VII, Subchapter E. OSM is
also making minor editorial changes.
Specifically, OSM is adding sections to the provisions of the
Indian lands program concerning the approval of amendments to the Crow
Tribe AMLR plan and submittal of OSM-required amendments to the Navajo
Nation, Hopi Tribe, and Crow Tribe AMLR plans, and is recodifying the
existing sections accordingly. By recodifying existing information for
the Hopi Tribe and Crow Tribe AMLR plan and plan amendments from 30 CFR
756.15, .16, and .17 to 30 CFR 756.16, .17, and .19; adding a section
to contain information on required amendments to the Navajo National
AMLR plan at 30 CFR 756.15; and creating new sections at 30 CFR 756.18
for required amendments to the Hopi Tribe AMLR plan and 756.20 for
approval of amendments and 756.21 for required amendments to the Crow
Tribe AMLR plan, OSM is being consistent with the codification it has
used for primacy State plans, plan amendments, and required amendments
to the plans.
II. Procedural Matters
1. Administrative Procedure Act
The minor revisions contained in this rulemaking are technical in
nature. Accordingly, pursuant to 5 U.S.C. 553(b)(B), it has been
determined that the notice and public comment procedures of the
Administrative Procedure Act are unnecessary. For the same reason, it
has been determined that, in accordance with 5 U.S.C. 553(d), there is
good cause to make this rule effective on the date of publication in
the Federal Register.
2. Executive Order 12866
This rule is exempted from review by the Office of Management and
Budget (OMB) under Executive Order 12866 (Regulatory Planning and
Review).
3. Executive Order 12778
The Department of the Interior has conducted the reviews required
by section 2 of Executive Order 12778 (Civil Justice Reform) and has
determined that this rule meets the applicable standards of subsections
(a) and (b) of that section. This rule (1) does not preempt any State,
Tribal, or local laws or regulations; (2) has no retroactive effect;
and (3) does not require administrative proceedings before parties may
file suit in court challenging its provisions.
4. National Environmental Policy Act
This rule has been reviewed by OSM, and it has been determined to
be categorically excluded from the National Environmental Policy Act
(NEPA) process in accordance with the Departmental Manual (516 DM 2
appendix 1.10) and the Council on Environmental Quality Regulations for
Implementing the Procedural Provisions of NEPA (40 CFR 1507.3).
5. Paperwork Reduction Act
This rule does not contain information collection requirements that
require approval of OMB under the Paperwork Reduction Act (44 U.S.C.
3507 et seq.).
6. Regulatory Flexibility Act
The Department of the Interior has determined that this rule will
not have a significant economic impact on a substantial number of small
entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.).
List of Subjects in 30 CFR Part 756
Abandoned mine reclamation programs, Indian lands, Surface mining,
Underground mining.
Dated: February 8, 1996.
Richard J. Seibel,
Regional Director, Western Regional Coordinating Center.
For the reasons set forth in the preamble, title 30, chapter VII,
subchapter E, part 756 of the Code of Federal Regulations is amended as
set forth below:
PART 756--INDIAN TRIBE ABANDONED MINE LAND RECLAMATION PROGRAMS
1. The authority citation for part 756 continues to read as
follows:
Authority: 30 U.S.C. 1201 et seq. and Pub. L. 100-71.
2. Section 756.13 is amended by revising paragraph (b) to read as
follows:
Sec. 756.13 Approval of the Navajo Nation's abandoned mine land plan.
* * * * *
(b) Office of Surface Mining Reclamation and Enforcement,
Albuquerque Field Office, 505 Marquette Ave., NW., Suite 1200,
Albuquerque, NM 87102, Telephone: (505) 248-5070.
3. Section 756.15 is revised to read as follows:
Sec. 756.15 Required amendments to the Navajo Nation's abandoned mine
land plan.
Pursuant to 30 CFR 884.15, the Navajo Nation is required to submit
to OSM by the date specified either a proposed amendment or a
reasonable timetable, which is consistent with the Navajo Nation's
established administrative and legislative procedures, for submitting
an amendment to the Navajo Nation plan.
4. Section 756.16 is revised to read as follows:
Sec. 756.16 Approval of the Hopi Tribe's abandoned mine land
reclamation plan.
The Hopi Tribe's Abandoned Mine Land Reclamation Plan as submitted
in July 1983, and amended in March and May 1988, is approved. Copies of
the approved Plan are available at the following locations:
(a) The Hopi Tribe, Hopi Abandoned Mine Land Program, Department of
Natural Resources, Honahni Building, P.O. Box 123, Kykotsmovi, AZ
86039, Telephone: (520) 734-2441.
(b) Office of Surface Mining Reclamation and Enforcement,
Albuquerque Field Office, 505 Marquette Ave., NW., Suite 1200,
Albuquerque, NM 87102, Telephone: (505) 248-5070.
5. Section 756.17 is revised to read as follows:
Sec. 756.17 Approval of amendments to the Hopi Tribe's abandoned mine
land reclamation plan.
The Hopi Tribe certification of completion of coal reclamation, as
submitted on February 2, 1994, is approved effective June 9, 1994.
6. Section 756.18 is added to read as follows:
Sec. 756.18 Required amendments to the Hopi Tribe's abandoned mine
land reclamation plan.
Pursuant to 30 CFR 884.15, the Hopi Tribe is required to submit to
OSM by the date specified either a proposed amendment or a reasonable
timetable, which is consistent with the Hopi Tribe's established
administrative and legislative procedures, for submitting an amendment
to the Hopi Tribe plan.
7. Section 756.19 is added to read as follows:
Sec. 756.19 Approval of the Crow Tribe's Abandoned Mine Land
Reclamation Plan.
The Crow Tribe's Abandoned Mine Land Reclamation Plan as submitted
in 1982, and resubmitted in September, 1988 is approved. Copies of the
approved Plan are available at the following locations:
(a) Crow Tribal Council, Crow Office of Reclamation, P.O. Box 159,
Crow Agency, MT 59022.
(b) Office of Surface Mining Reclamation and Enforcement, Casper
Field Office, Room 2128, 100 East B Street, Casper, WY 82601-1918,
Telephone: (307) 261-6555.
8. Section 756.20 is added to read as follows:
[[Page 6509]]
Sec. 756.20 Approval of amendments to the Crow Tribe's abandoned mine
land reclamation plan.
Revisions to the following provisions of the Crow Tribe's Abandoned
Mine Land Reclamation Plan, as submitted to OSM on the date specified,
are approved.
9. Section 756.21 is added to read as follows:
Sec. 765.21 Required amendments to the Crow Tribe's abandoned mine
land reclamation plan.
Pursuant to 30 CFR 884.15, the Crow Tribe is required to submit to
OSM by the date specified either a proposed amendment or a reasonable
timetable, which is consistent with the Crow Tribe's established
administrative and legislative procedures, for submitting an amendment
to the Crow Tribe plan.
[FR Doc. 96-3669 Filed 2-20-96; 8:45 am]
BILLING CODE 4310-05-M
Complete official Federal Register PDF
FR Doc. 96-3587 Underground Storgae Tank Program; Approved State Program for Maine
[Federal Register Volume 61, Number 35 (Wednesday, February 21, 1996)]
[Rules and Regulations]
[Pages 6554-6556]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-3587]
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 282
[FRL-5345-2]
Underground Storgae Tank Program; Approved State Program for
Maine
AGENCY: Environmental Protection Agency (EPA).
ACTION: Immediate final rule.
-----------------------------------------------------------------------
SUMMARY: The Resource Conservation and Recovery Act of 1976, as amended
(RCRA), authorizes the Environmental Protection Agency (EPA) to grant
approval to states to operate their underground storage tank programs
in lieu of the federal program. 40 CFR part 282 codifies EPA's decision
to approve state programs and incorporates by reference those
provisions of the state statutes and regulations that will be subject
to EPA's inspection and enforcement authorities under sections 3007,
7003, 9005, and 9006 of RCRA. This rule codifies in part 282 the prior
approval of Maine's underground storage tank program and incorporates
by reference appropriate provisions of state statutes and regulations.
DATES: This regulation shall be effective April 22, 1996, unless EPA
publishes a prior Federal Register notice withdrawing this immediate
final rule. All comments on the codification of Maine's underground
storage tank program must be received by the close of business March
22, 1996. The incorporation by reference of certain publications listed
in the regulations is approved by the Director of the Federal Register,
as of April 22, 1996.
ADDRESSES: Comments may be mailed to the Docket Clerk (Docket No. UST
5-3), Underground Storage Tank Program, HPU-CAN7, U.S. EPA Region I,
JFK Federal Building, Boston, MA 02203-2211. Comments received by EPA
may be inspected in the public docket, located in the Waste Management
Division Record Center, 90 Canal St., Boston, MA 02203 from 9 a.m. to 4
p.m., Monday through Friday, excluding federal holidays.
FOR FURTHER INFORMATION CONTACT: Thomas Burns, Underground Storage Tank
Program, HPU-CAN7, U.S. EPA Region I, JFK Federal Building, Boston, MA
02203-2211. Phone: (617) 573-9663.
SUPPLEMENTARY INFORMATION:
Background
Section 9004 of the Resource Conservation and Recovery Act of 1976,
as amended (RCRA), 42 U.S.C. 6991c, allows the U.S. Environmental
Protection Agency to approve state underground storage tank programs to
operate in the state in lieu of the federal underground storage tank
program. EPA published a Federal Register document announcing its
decision to grant approval to Maine. (57 FR 36, February 24, 1992).
Approval was effective on March 18, 1992.
EPA codifies its approval of State programs in 40 CFR part 282 and
incorporates by reference therein the state statutes and regulations
that will be subject to EPA's inspection and enforcement authorities
under sections 3007, 7003, 9005, and 9006 of Subtitle I of RCRA, 42
U.S.C. 6927, 6973, 6991d and 6991e. Today's rulemaking codifies EPA's
approval of the Maine underground storage tank program. This
codification reflects the state program in effect at the time EPA
granted Maine approval under section 9004(a), 42 U.S.C. 6991c(a) for
its underground storage tank program. Notice and opportunity for
comment were provided earlier on the Agency's decision to approve the
Maine program, and EPA is not now reopening that decision nor
requesting comment on it.
Codification provides clear notice to the public of the scope of
the approved program in each state. Revisions to state underground
storage tank programs are necessary when federal statutory or
regulatory authority is modified. By codifying the approved Maine
program and by amending the Code of Federal Regulations whenever a new
or different set of requirements is approved in Maine, the status of
federally approved requirements of the Maine program will be readily
discernible. Only those provisions of the Maine underground storage
tank program for which approval has been granted by EPA will be
incorporated by reference for enforcement purposes.
To codify EPA's approval of Maine's underground storage tank
program, EPA has added Sec. 282.69 to title 40 of the CFR. Section
282.69 incorporates by reference for enforcement purposes the State's
statutes and regulations. Section 282.69 also references the Attorney
General's Statement, Demonstration of Adequate Enforcement Procedures,
the Program Description, and the Memorandum of Agreement, which are
approved as part of the underground storage tank program under Subtitle
I of RCRA.
The Agency retains the authority under Sections 9005 and 9006 of
Subtitle I of RCRA, 42 U.S.C. 6991d and 6991e, and other applicable
statutory and regulatory provisions to undertake inspections and
enforcement actions in approved states. With respect to such an
enforcement action, EPA will rely on federal sanctions, federal
inspection authorities, and federal procedures rather than the state
authorized analogs to these provisions. Therefore, the approved Maine
enforcement authorities will not be incorporated by reference. Forty
CFR Sec. 282.69 lists those approved Maine authorities that would fall
into this category
The public also needs to be aware that some provisions of the
Maine's underground storage tank program are not part of the federally
approved state program. These are:
Registration requirements for farm or residential tanks
less than or equal to 1,100 gallons containing motor fuels for non-
commercial use;
Registration requirements for tanks used for storing
heating oil for consumptive use on the premises; and
Permanent closure requirements for tanks containing
heating oil consumed on the premises where stored.
These non-approved provisions are not part of the RCRA Subtitle I
program because they are ``broader in scope'' than Subtitle I of RCRA.
See 40 CFR 281.12(a)(3)(ii). As a result, state provisions which are
``broader in scope'' than the federal program are not incorporated by
reference for purposes of enforcement in part 282. Section 282.69 of
the codification simply lists for reference and clarity the Maine
statutory and regulatory provisions which are ``broader in scope'' than
the federal program and which are not, therefore, part of the approved
program being codified today. ``Broader in scope'' provisions cannot be
enforced by EPA; the State, however, will continue to enforce such
provisions.
Certification Under the Regulatory Flexibility Act
This rule codifies the decision already made (57 FR 36, February
24, 1992) to approve the Maine underground storage
[[Page 6555]]
tank program and thus has no separate effect. Therefore, this rule does
not require a regulatory flexibility analysis. Thus, pursuant to
Section 605(b) of the Regulatory Flexibility Act, 5 U.S.C. 605(b), I
hereby certify that this rule will not have a significant economic
impact on a substantial number of small entities.
Compliance With Executive Order 12866
The Office of Management and Budget has exempted this rule from the
requirements of Section 6 of Executive Order 12866.
Paperwork Reduction Act
Under the Paperwork Reduction Act, 44 U.S.C. 3501 et seq., Federal
agencies must consider the paperwork burden imposed by any information
request contained in a proposed or final rule. This rule will not
impose any information requirements upon the regulated community.
List of Subjects In 40 CFR Part 282
Environmental protection, Hazardous substances, Incorporation by
reference, Intergovernmental relations, State program approval,
Underground storage tanks, Water pollution control.
Dated: September 21, 1995.
John P. DeVillars,
Regional Administrator.
For the reasons set forth in the preamble, 40 CFR part 282 is
amended as follows:
PART 282--APPROVED UNDERGROUND STORAGE TANK PROGRAMS
1. The authority citation for part 282 continues to read as
follows:
Authority: 42 U.S.C. 6912, 6991c, 6991d, and 6991e.
2. Subpart B is amended by adding Sec. 282.69 to read as follows:
Subpart B--Approved State Programs
Sec. 282.69--Maine State-Administered Program.
(a) The State of Maine is approved to administer and enforce an
underground storage tank program in lieu of the federal program under
Subtitle I of the Resource Conservation and Recovery Act of 1976
(RCRA), as amended, 42 U.S.C. 6991 et seq. The State's program, as
administered by the Maine Department of Environmental Protection, was
approved by EPA pursuant to 42 U.S.C. 6991c and part 281 of this
chapter. EPA approved the Maine program on February 18, 1992, and the
approval was effective on March 18, 1992.
(b) Maine has primary responsibility for enforcing its underground
storage tank program. However, EPA retains the authority to exercise
its inspection and enforcement authorities under sections 3007, 7003,
9005 and 9006 of RCRA, 42 U.S.C. 6927, 6973, 6991d and 6991e, as well
as under other statutory and regulatory provisions.
(c) To retain program approval, Maine must revise its approved
program to adopt new changes to the federal Subtitle I program which
make it more stringent, in accordance with section 9004 of RCRA, 42
U.S.C. 6991c, and 40 CFR part 281, subpart E. If Maine obtains approval
for the revised requirements pursuant to section 9004 of RCRA, 42
U.S.C. 6991c, the newly approved statutory and regulatory provisions
will be added to this subpart and notice of any change will be
published in the Federal Register.
(d) Maine has final approval for the following elements submitted
to EPA in Maine's program application for final approval and approved
by EPA on February 18, 1992. Copies may be obtained from the
Underground Storage Tank Program, Maine Department of Environmental
Protection, AMHI Complex-Ray Building, Hospital Street, Augusta, ME
04333. The elements are listed below:
(1) State statutes and regulations. (i) The provisions cited in
this paragraph are incorporated by reference as part of the underground
storage tank program under subtitle I of RCRA, 42 U.S.C. 6991 et seq.
(A) Maine Statutory Requirements Applicable to the Underground
Storage Tank Program, 1995.
(B) Maine Regulatory Requirements Applicable to the Underground
Storage Tank Program, 1995.
(ii) The following statutes and regulations are part of the
approved state program, although not incorporated by reference herein
for enforcement purposes.
(A) The statutory provisions include: Title 38 Maine Revised
Statutes Annotated, Sections 561 through 570.
(B) The regulatory provisions include: Maine Regulations for
Registration, Installation, Operation and Closure of Underground Oil
Storage Facilities Chapter 691 Section 1 through 13.
(iii) The following statutory and regulatory provisions are broader
in scope than the federal program, are not part of the approved
program, and are not incorporated by reference herein for enforcement
purposes.
(A) Title 38 Maine Statutes Annotated, Section 565, insofar as it
refers to registration requirements for tanks greater than 1,100
gallons containing heating oil consumed on the premises where stored.
(B) Maine Environmental Protection Regulations Chapter 691, Section
6 regulations of heating oil facilities for consumption on premises,
Section 9 facilities for underground storage of heavy oils.
(2) Statement of legal authority. (i) ``Attorney General's
Statement for Final Approval'', signed by the Attorney General of Maine
on December 5, 1991, though not incorporated by reference, is
referenced as part of the approved underground storage tank program
under Subtitle I of RCRA, 42 U.S.C. 6991 et seq.
(ii) Letter from the Attorney General of Maine to EPA, is
referenced as part of the approved underground storage tank program
under Subtitle I of RCRA, 42 U.S.C. 6991 et seq.
(3) Demonstration of procedures for adequate enforcement. The
``Demonstration of Procedures for Adequate Enforcement'' submitted as
part of the original application in November 1991, though not
incorporated by reference, is referenced as part of the approved
underground storage tank program under subtitle I of RCRA, 42 U.S.C.
6991 et seq.
(4) Program description. The program description and any other
material submitted as part of the original application in December 20,
1991, though not incorporated by reference, are referenced as part of
the approved underground storage tank program under Subtitle I of RCRA,
42 U.S.C. 6991 et seq.
(5) Memorandum of Agreement. The Memorandum of Agreement between
EPA Region I and the Maine Department of Environmental Protection,
signed by the EPA Regional Administrator on November, 1992, though not
incorporated by reference, is referenced as part of the approved
underground storage tank program under subtitle I of RCRA, 42 U.S.C.
6991 et seq.
3. Appendix A to part 282 is amended by adding in alphabetical
order ``Maine'' and its listing.
Appendix A To Part 282--State Requirements Incorporated by Reference in
Part 282 of the Code of Federal Regulations
* * * * *
Maine
The following is an informational listing of the state
requirements incorporated by reference in part 282 of the Code of
Federal Regulations:
(a) The statutory provisions include: Maine Revised Statutes
Annotated, 1990, Tile 38.
[[Page 6556]]
Subchapter 11-B Underground Oil Storage Facilities and Groundwater
Protection.
Section 561--Findings; Purpose
Section 562-A--Definitions
Section 563--Registration of underground oil storage tanks
Section 563-A--Prohibition of nonconforming underground oil storage
facilities and tanks
Section 563-B--Regulatory powers of department
Section 564--Regulation of underground oil storage facilities
Section 566-A--Abandonment of underground oil storage facilities and
tanks
Section 567--Certification of underground tank installers
Section 568--Cleanup and removal of prohibited discharges
Section 568-A--Fund coverage requirements
Section 568-B--Fund Insurance Review Board
Section 569-A--Ground water Oil Clean-up Fund
Section 570--Liability
(b) The regulatory provisions include State of Maine, Department
of Environmental Protection, Regulation for Registration,
Installation, Operation and Closure of Underground Storage
Facilities Chapter 691, September 16, 1991:
Section 1. Legal Authority
Section 2. Preamble
Section 3. Definitions
Section 4. Registration of Underground Oil Storage Tanks
Section 5. Regulation of Motor Fuel, Marketing & Distribution
Facilities
A. Applicability
B. Design and Installation Standards for New and Replacement
Facilities
C. Retrofitting Requirements for Existing Facilities
D. Monitoring, Maintenance, & Operating Procedures for Existing,
New & Replacement Facilities & Tanks
E. Facility Closure and Abandonment
Section 7. Regulation of Facilities for the Underground Storage of
Waste Oil
A. Applicability
B. Design and Installation Standards
C. Operation, Maintenance, Testing, Requirements for Existing,
New and Replacement Facilities
D. Closure & Abandonment of Waste Oil Facilities
Section 8. Regulation of Field Constructed Underground Oil Storage
Tanks
Section 10. Regulation of Pressurized Airport Hydrant Piping Systems
Section 11. Regulations for Closure of Underground Oil Storage
Facilities
A. Facility Closure Requirements
B. Temporarily Out of Service Facilities and Tanks
C. Abandonment by Removal
D. Abandonment by Filling in Place
E. Notification Requirements
Section 12. Discharge and Leak Investigation, Response and
Corrective Action Requirements
Section 13. Severability
Appendix A: Cathodic Protection Monitoring
Appendix B: Hydrostatic Piping Line Tightness Tests
Appendix C: Requirements for Pneumatic Testing
Appendix D: Installation of Underground Tanks
Appendix E: Installation for Underground Piping
Appendix F: Specification for Ground Water Vertical Monitoring Wells
Appendix H: Monitoring and Obtaining Samples for Laboratory Analysis
Appendix J: Requirements for Abandonment by Removal
Appendix K: Requirements for Abandonment in Place
[FR Doc. 96-3587 Filed 2-20-96; 8:45 am]
BILLING CODE 6560-50-P
Complete official Federal Register PDF
FR Doc. 96-3581 National Oil and Hazardous Substances Pollution Contingency Plan; National Priorities List
[Federal Register Volume 61, Number 35 (Wednesday, February 21, 1996)]
[Rules and Regulations]
[Page 6556]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-3581]
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 300
[FRL-5421-8]
National Oil and Hazardous Substances Pollution Contingency Plan;
National Priorities List
AGENCY: Environmental Protection Agency (EPA).
ACTION: Notice of deletion of the Lewisburg Dump Site from the National
Priorities List (NPL).
-----------------------------------------------------------------------
SUMMARY: The Environmental Protection Agency (EPA) announces the
deletion of the Lewisburg Dump site in Lewisburg, Tennessee, from the
National Priorities List (NPL), which is appendix B of 40 CFR part 300
which is the National Oil and Hazardous Substances Pollution
Contingency Plan (NCP). EPA and the State have determined that all
appropriate Fund-financed responses under the Comprehensive
Environmental Response, Compensation and Liability Act (CERCLA), as
amended, have been implemented and that no further cleanup is
appropriate. Moreover, EPA and the State have determined that remedial
actions conducted at the site to date have been protective of public
health, welfare, and the environment. This deletion does not preclude
future actions under Superfund.
EFFECTIVE DATE: February 1, 1996.
FOR FURTHER INFORMATION CONTACT: Femi Akindele, Remedial Project
Manager, U.S. Environmental Protection Agency, Region 4, North
Superfund Remedial Branch, 345 Courtland Street, N.E., Atlanta, Georgia
30365, (404) 347-7791, extension 2042.
SUPPLEMENTARY INFORMATION: The site to be deleted from the NPL is:
Lewisburg Dump Superfund Site, Lewisburg, Tennessee.
A Notice of Intent to Delete for this site was published on
December 20, 1995, (60 FR 65616). The closing date for comments on the
Notice of Intent to Delete was January 11, 1996. EPA received no
comments.
EPA identifies sites that appear to present a significant risk to
public health, welfare, or the environment and it maintains the NPL as
the list of those sites. Any site deleted from the NPL remains eligible
for Fund-financed remedial actions in the unlikely event that
conditions at the site warrant such action in the future. Section
300.425(e)(3) of the NCP states that Fund-financed actions may be taken
at sites deleted from the NPL. Deletion of a site from the NPL does not
affect responsible party liability or impede agency efforts to recover
costs associated with response efforts.
List of Subjects in 40 CFR Part 300
Environmental protection, Air pollution control, Chemicals,
Hazardous Waste, Hazardous substances, Intergovernmental relations,
Penalties, Reporting and recordkeeping requirements, Superfund, Water
pollution control, Water supply.
For the reasons set out in the preamble, 40 CFR part 300 is amended
as follows:
PART 300--[AMENDED]
1. The authority citation for part 300 continues to read as
follows:
Authority: 33 U.S.C. 1321(c)(2); 42 U.S.C. 9601-9657; E.O.
12777, 56 FR 54757, 3 CFR, 1991 Comp., p 351; E.O. 12580, 52 FR
2923; 3 CFR, 1987 Comp., p. 193.
Appendix B--[Amended]
2. Table 2 of appendix B to part 300 is amended by removing the
site for Lewisburg Dump, Lewisburg, Tennessee.
Dated: January 31, 1996.
Phyllis P. Harris,
Acting Regional Administrator, U.S. EPA Region 4.
[FR Doc. 96-3581 Filed 2-20-96; 8:45 am]
BILLING CODE 6560-50-P
Complete official Federal Register PDF
FR Doc. 96-3569 Annual Independent Audits and Reporting Requirements
[Federal Register Volume 61, Number 35 (Wednesday, February 21, 1996)]
[Rules and Regulations]
[Pages 6487-6500]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-3569]
========================================================================
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. 35 / Wednesday, February 21, 1996 /
Rules and Regulations
[[Page 6487]]
FEDERAL DEPOSIT INSURANCE CORPORATION
12 CFR Part 363
RIN 3064-AA83
Annual Independent Audits and Reporting Requirements
AGENCY: Federal Deposit Insurance Corporation (FDIC or Corporation).
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The FDIC is amending its regulations concerning annual
independent audits and reporting requirements. Section 314 of the
Riegle Community Development and Regulatory Improvement Act of 1994
(RCDRIA) amended sections 36(i) and 36(g)(2) of the Federal Deposit
Insurance Act (FDI Act). Section 36 of the FDI Act is generally
intended to facilitate early identification of problems in financial
management at larger insured depository institutions through annual
independent audits, assessments of the effectiveness of internal
controls and of compliance with designated laws and regulations, and
more stringent reporting requirements. Section 314(a) provides relief
from certain duplicative reporting under section 36 of the FDI Act for
sound, well managed insured depository institutions with over $9
billion in total assets which are subsidiaries of multibank holding
companies. Section 314(b) requires the Corporation to notify a large
insured depository institution in writing if it decides a review by an
independent public accountant of such an institution's quarterly
financial reports is required. This regulation governs annual
independent audits and implements section 36 of the FDI Act. This
amendment conforms the regulations to the amended statute.
In addition, the FDIC is making several technical amendments to the
Guidelines and Interpretations (Guidelines) that were published as an
appendix to the annual independent audit regulations. The FDIC also is
amending Schedule A to the appendix, ``Agreed Upon Procedures for
Determining Compliance with Designated Laws'', to implement recent
amendments to the federal regulations concerning loans to insiders,
improve the format of the procedures, streamline the specific
procedures, and eliminate ambiguities. These amendments reflect the
experience of the Corporation, financial institutions, and accountants
using the existing procedures during the past two years.
EFFECTIVE DATE: April 1, 1996.
FOR FURTHER INFORMATION CONTACT: Doris L. Marsh, Examination
Specialist, Division of Supervision (202) 898-8905, FDIC, 550 17th
Street NW., Washington, DC 20429, or Sandra Comenetz, Counsel, Legal
Division, (202) 898-3582, FDIC, 550 17th Street NW., Washington, DC
20429.
SUPPLEMENTARY INFORMATION:
I. Paperwork Reduction Act
The collection of information contained in this amendment has been
reviewed and approved by the Office of Management and Budget under
control number 3064-0113, pursuant to section 3504(h) of the Paperwork
Reduction Act (44 U.S.C. 3501 et seq.). This information collection is
mandated by section 36 of the FDI Act (12 U.S.C. 1831m), which was
added by section 112 of FDICIA (Pub. L., 102-242, 105 Stat. 2242).
The total estimated reporting burden for the collection under Part
363 is:
Number of Respondents: 450.
Number of Responses per Respondent: 3.19.
Total Annual Responses: 1,435.5.
Hours per Response: 40.38.
Total Annual Burden Hours: 57,970.
The changes to this collection of information have been reviewed
and approved by OMB pursuant to the Paperwork Reduction Act. Comments
on the accuracy of the burden estimate, and suggestions for reducing
the burden, should be directed to the Office of Management and Budget,
Paperwork Reduction Project 3064-0113, Washington, D.C. 20503, with
copies of such comments to Steven F. Hanft, Office of the Executive
Secretary, Room F-400, 550 17th St. N.W., Washington, D.C. 20429.
II. Regulatory Flexibility Act
The rule expressly exempts insured depository institutions having
assets of less than $500 million, and, for that reason, is inapplicable
to small entities. Therefore, pursuant to section 605(b) of the
Regulatory Flexibility Act (Pub. L. 96-354, 5 U.S.C. 601 et seq.), it
is certified that the rule would not have a significant impact on a
substantial number of small entities.
III. Background
Section 112 of the Federal Deposit Insurance Corporation
Improvement Act of 1991 (FDICIA) added section 36, ``Independent Annual
Audits of Insured Depository Institutions'', to the FDI Act (12 U.S.C.
1831m). Section 36 requires the FDIC, in consultation with the
appropriate federal banking agencies, to promulgate regulations
requiring each insured depository institution over a certain asset size
(covered institution) to have an annual independent audit of its
financial statements performed in accordance with generally accepted
auditing standards and section 37 of the FDI Act (12 U.S.C. 1831n), and
to provide a management report and an independent public accountant's
attestation concerning both the effectiveness of the institution's
internal controls for financial reporting and its compliance with
designated safety and soundness laws. Section 36 also requires each
covered institution to have an independent audit committee. The audit
committee of each large covered institution (total assets exceeding $3
billion) must meet certain additional requirements.
Section 36 also requires the FDIC, in consultation with the other
federal banking agencies, to designate laws and regulations concerning
safety and soundness. This section requires the institution's
independent public accountant to perform procedures agreed upon by the
Corporation to determine an institution's compliance with such
designated laws and regulations. The laws and regulations selected by
the Corporation (Designated Laws) are the federal laws and regulations
concerning loans to insiders and the federal and state laws and
regulations concerning dividend restrictions.
In June 1993, the FDIC published 12 CFR Part 363 (58 FR 31332, June
2, 1993) to implement the provisions of
[[Page 6488]]
section 36 of the FDI Act. Under Part 363, the requirements of section
36 apply to each insured depository institution with $500 million or
more in total assets at the beginning of any fiscal year that begins
after December 31, 1992. Part 363 also includes Guidelines and
Interpretations (Appendix A to Part 363), which are intended to assist
institutions and independent public accountants in understanding and
complying with Section 36 and Part 363. Appendix A to Schedule A
contains the agreed-upon procedures that must be performed by an
institution's independent public accountant in order to permit the
accountant to report on the extent of compliance with the Designated
Laws as required by Section 36(e)(1) and (2).
Section 314 of RCDRIA amends sections 36(i) and 36(g)(2) of the FDI
Act (12 U.S.C. 1831m(i) and (g)(2)). The purpose of section 314(a) is
to provide relief from certain duplicative reporting under section 36
of the FDI Act for sound, well managed insured depository institutions
with over $9 billion in total assets which are subsidiaries of
multibank holding companies. Section 314(b) requires the FDIC to notify
a large insured depository institution in writing if the FDIC decides
to require a review by an independent public accountant of such
institution's quarterly financial reports.
Section 36(g)(2) of the FDI Act authorizes the FDIC to require
independent public accountants for ``large institutions'' to review
such institutions' quarterly financial reports. When the FDIC adopted
Part 363, it elected not to exercise its authority in this area for
reasons of cost and limited expected benefits, preferring instead to
request such reviews on a case-by-case basis. The FDIC continues to
believe that this is appropriate. Should the FDIC decide to request an
independent public accountant's review of the quarterly financial
statements of a large insured depository institution, it will make the
request in writing. The regulation is being amended to reflect section
314(a); no regulatory action is needed for section 314(b) which speaks
for itself.
In addition, the regulation is being amended to reflect the current
provisions of federal regulations concerning loans to insiders (Federal
Reserve Board Regulation O, 12 CFR Part 215), which are included in one
of the Designated Laws, but were amended themselves during 1994.
Lastly, Section 303 of RCDRIA requires the each federal banking
agency to streamline and modify its regulations and policies in order
to improve efficiency and reduce unnecessary burden. The FDIC believes
that Part 363 and its final amendment are consistent with the
requirements of section 303.
IV. Proposed Rule
The FDIC sought public comment on proposed amendments to Part 363
and the Guidelines in February 1995 (60 FR 8583, February 15, 1995).
The FDIC proposed to amend certain paragraphs of 12 CFR Part 363 to
conform to the amended statute. The FDIC also proposed to make
technical and clarifying changes to the Guidelines in Appendix A.
In addition, initial experience with Part 363 indicated that
certain clarifications of the specific procedures in Schedule A to
Appendix A of the Guidelines would make them more efficient and less
burdensome. The FDIC therefore proposed amending Schedule A to Appendix
A--Agreed Upon Procedures for Determining Compliance with Designated
Laws, to eliminate ambiguities, improve the format of the procedures,
streamline the specific procedures, and reflect the recent amendments
to the federal regulations concerning loans to insiders (12 CFR Part
215). The proposal reflected the experience of the Corporation,
institutions, and accountants with the existing procedures during the
period since their adoption in June 1993.
A. Proposed Amendments to the Rule
Section 363.1--Scope. To make Sec. 363.1(b) consistent with section
314(a)(1) of RCDRIA, the phrase ``but less than $9 billion'' was
proposed to be deleted from the provisions of the regulation describing
the institutions eligible to report using the holding company exception
set forth in section 36(i). Section 36 originally required each
institution with total assets exceeding $9 billion to have its own
audit committee and to file a management report and attestations by the
independent public accountant on internal controls and compliance with
designated laws and regulations. This has been particularly burdensome
for many large institutions which are subsidiaries of multibank holding
companies because they have had to have their own separate audit
committee, whose function was often duplicative of the holding company
audit committee. In addition, the holding company typically has had to
file two sets of management reports and attestations by the independent
public accountant: one on the institution which exceeded $9 billion in
total assets and another on the holding company group in order to cover
the smaller institutions also subject to Part 363. In many cases, these
reports were duplicative since the large institution was the dominant
institution in the holding company group. Section 314(a) eliminates
this duplication by permitting sound, well-managed insured depository
institutions with over $9 billion in total assets which are
subsidiaries of multibank holding companies to use the holding company
audit committee and to submit reports as part of the holding company
group.
The FDIC also proposed to add a paragraph, consistent with section
314(a)(3) of RCDRIA, to explain that the appropriate federal banking
agency may require a large institution subsidiary of a holding company
to have its own audit committee and report separately if it determines
that the institution's use of the holding company exception in section
36(i) would create a significant risk to the affected deposit insurance
fund.
Section 363.4--Filing and notice requirements. It was proposed to
correct Sec. 363.4(b) so that it would be clear that only the annual
report in Sec. 363.4(a)(1) is available for public inspection and that
the attestation by the independent public accountant concerning
compliance with Designated Laws is not a document available to the
public.
Section 363.5--Audit committees. A new sentence was proposed to be
added to make the Rule consistent with section 314(a) of RCDRIA, which
prohibits any large customers of a large insured depository institution
from being members of the audit committee of the institution's holding
company if the institution relies on the audit committee of the holding
company to comply with this rule.
B. Amendments to Appendix A to Part 363--Guidelines and Interpretations
4. Comparable Services and Functions--Guideline 4(c) under ``Scope
of Rule'' was proposed to be amended to replace the phrase ``all
subsidiary institutions'' with the phrase ``those subsidiary
institutions'' to clarify that only information pertaining to covered
institutions, not all subsidiaries of a holding company, must be
included in reports filed under Part 363.
9. Safeguarding of Assets. The last two sentences of Guideline 9
and the footnote to the Guideline, which explained how the independent
public accountant should treat the lack of criteria against which
``safeguarding of assets'' may be judged for financial reporting, were
proposed to be revised. The FDIC's concern over the lack of criteria,
which existed at the time of the adoption of Part 363, was eliminated
in May 1994, as a result of the issuance by
[[Page 6489]]
Committee of Sponsoring Organizations (COSO) of the Treadway Commission
of an Addendum to the ``Reporting to External Parties'' volume of
COSO's September 1992 Internal Control--Integrated Framework (COSO
Report). The Addendum expanded the discussion of the scope of a
management report on internal controls to address additional controls
pertaining to safeguarding of assets. The FDIC proposed to replace the
last two sentences of the Guideline with specific references to types
of safeguarding that should be covered by management and the
independent public accountant in their reports.
10. Standards for Internal Controls. In the footnote to Guideline
10, the Addendum to the COSO Report was proposed to be added to the
list of sources of information on safeguarding of assets and standards
for internal controls for financial reporting that may be considered
for use by institutions. In addition, it was proposed that the American
Institute of Certified Public Accountants' (AICPA) Statement on
Auditing Standards No. 55 (SAS 55), ``Consideration of the Internal
Control Structure in a Financial Statement Audit,'' should replace
AICPA Statement on Auditing Standards No. 30 (SAS 30), ``Reporting on
Internal Accounting Control,'' in the footnote to Guideline 10.
15. Peer Reviews--Guideline 15 requires each independent accountant
to be enrolled in or have received a peer review that meets certain
guidelines. These guidelines state that the peer review must be
consistent with American Institute of Certified Public Accountants
(AICPA) standards. Since the AICPA combined the two of its three
standards for performing and reporting on peer reviews, those for
Private Companies Practice Section and for its Quality Reviews into one
standard on Peer Reviews, the footnote to Guideline 15 was proposed to
be amended to identify the two remaining acceptable AICPA standards:
Standards for Performing and Reporting on Peer Reviews, contained in
Volume 2 of the AICPA's Professional Standards, and Standards for
Performing and Reporting on Peer Reviews, codified in the SEC Practice
Section Reference Manual.
24. Relief from Filing Deadlines--This Guideline explains the
circumstances in which an institution may request an extension of a
filing deadline, but makes reference to section 36 in doing so. The
phrase referring to section 36 of the FDI Act in Guideline 24 was
proposed to be deleted since section 36 does not grant authority to the
FDIC to provide relief to, or exempt institutions from, provisions in
the statute.
31. Holding Company Audit Committees--The proposal sought to revise
Guideline 31 because it had been widely misunderstood. The existing
Guideline provides that members of a holding company's independent
audit committee may serve as the audit committee of any subsidiary
institution if they are otherwise independent of the subsidiary's
management. However, this was not intended to apply where an insured
depository institution subsidiary has $5 billion or more in total
assets, and a 3, 4, or 5 composite CAMEL rating and is not eligible to
use the holding company exception in section 36(i). Such a subsidiary
must have its own audit committee separate from the audit committee of
the holding company. Guideline 31 was proposed to be amended to clarify
this point.
In addition, existing Guideline 31 did not make it clear that when
an institution eligible to use the holding company exception relies on
a holding company audit committee in order to comply with this rule,
the holding company audit committee must meet the requirements for the
audit committee of the largest subsidiary institution. To be eligible
to use the holding company exception, an insured depository institution
subsidiary must have either less than $5 billion in total assets, or $5
billion or more in total assets and a 1 or 2 composite CAMEL rating,
and its holding company must perform services and functions comparable
to those required by the statute. Accordingly, it was proposed to amend
Guideline 31 to clearly indicate that when an eligible institution
chooses to rely on the holding company's audit committee, the members
of the audit committee of the holding company are expected to meet the
membership requirements of the largest subsidiary depository
institution and may perform the duties of the audit committee for a
subsidiary institution without becoming directors of the institution.
32. Duties--The second sentence of Guideline 32 was proposed to be
amended to complete the citation to certain sections of Part 363. As
proposed, the sentence would state that the duties of a covered
institution's audit committee should be appropriate to the size of the
institution and the complexity of its operations, and should include
reviewing with management and the independent public accountant the
basis for the reports issued under Secs. 363.2(a) and (b) and 363.3(a)
and (b) of the Rule. At present, the citation refers only to
Sec. 363.2(b) of the Rule.
C. Amendments to Schedule A to Appendix A--Agreed Upon Procedures for
Determining Compliance With Designated Laws
The agreed upon procedures in Schedule A were proposed to be
amended to clarify the numbering system, make the procedures consistent
with amendments to insider loan regulations, and adopt suggestions of
institutions and accountants to make the performance of the agreed upon
procedures more efficient and less burdensome.
Proposed formatting changes included renumbering the paragraphs and
adding more subject titles. The procedures applicable to insider
extensions of credit granted, insider extensions of credit outstanding,
aggregate insider extensions of credit outstanding, overdrafts,
limitations on extensions of credit to executive officers, and reports
on indebtedness to correspondent banks were proposed to be placed in
separate subsections of the procedures for more efficient performance
of the procedures and ease of reference. The amendments to the Federal
Reserve Board's Regulation O (12 CFR Part 215), the federal rules
governing insider loans, necessitated numerous citation changes.
As proposed, accountants would be permitted to use the most
recently completed Reports of Condition and Income (Call Report) or
Thrift Financial Report (TFR) when the procedures are being performed
rather than requiring the use of only the year-end Call Report or TFR.
The scope of the required reading of board and committee minutes and
reports under the Securities Exchange Act of 1934 was proposed to also
be more clearly defined. Inadvertent overdrafts in an aggregate amount
of $1,000 or less, which are exempt from Regulation O proscriptions
(see 12 CFR 215.4(e)), were proposed to no longer be separately tracked
by institutions, listed when certain representations are made by
management, or tested by the accountant. Where accountants had
previously been expected to compare insider transactions to
transactions with nonaffiliated persons, the comparison period within
which nonaffiliated transactions can take place was proposed to be
expanded from four to eight weeks. In addition, where no maximum number
of transactions (to which comparisons must be made) had previously been
included, comparisons were proposed to be limited to a maximum of
three. An alternative procedure that permitted the terms of the insider
transaction to be compared
[[Page 6490]]
to existing lending policies also was proposed.
To ensure that some tests were performed on each category of
extension of credit, including overdrafts and loans from correspondent
banks, the existing agreed-upon procedures directed accountants to
obtain three separate samples. Based on suggestions received for
improving the procedures covering extensions granted and outstanding
during the year, the proposal had accountants focus the testing on a
sample of insiders rather than a sample of transactions.
Under the present guidelines, an institution may choose to have
some of the required testing in the agreed-upon procedures performed by
its internal auditor with less testing performed by its independent
public accountant. However, in some situations in multibank holding
companies, the internal auditor may be required to perform more testing
than was required of the external auditor. When the holding company
exception set forth in section 36(i) is used at a holding company with
more than one covered subsidiary institution, the FDIC proposed to
extend to internal auditors the same testing requirements that have
been applicable to independent public accountants. Specifically, this
would eliminate the existing requirement that internal auditors perform
the procedures on each covered subsidiary every year. Thus, the testing
of samples from all covered subsidiaries every two or three years that
has been required of independent public accountants was proposed to
also apply to internal auditors. It was further proposed that the lead
institution or a few very large covered subsidiary institutions be
included every year in the testing by both accountants and internal
auditors. However, in response to the proposed reduction in testing
requirements applicable to internal auditors, the FDIC proposed to
increase the size of the samples required to be tested by the
independent public accountant from the present 20 percent to 30 percent
of the size of the samples used by the internal auditor. This change
was not expected to generally result in any increase in the number of
transactions tested by the independent public accountant for reports on
holding companies with two or more covered subsidiary institutions.
V. Discussion of Final Rule and Public Comments
The FDIC received 16 comment letters concerning the proposed
amendments. Ten of the comment letters were from large banks, thrifts,
and holding companies; three from banking trade organizations; two from
accounting and auditing organizations; and one from an accounting firm.
The letters supported the addition to the rule of the changes
mandated by the Riegle Community Development and Regulatory Improvement
Act of 1994. They also were generally supportive of the proposal's goal
to make the agreed-upon procedures in Schedule A to Appendix A less
burdensome. However, many commenters stated their belief that Section
36 and its implementing rule were unnecessary and costly to comply
with. Many commenters urged that the sections of the statute concerning
compliance with safety and soundness laws and regulations, including
both the management report and accountant's attestation, be eliminated.
Nevertheless, barring any Congressional action in this regard, the
commenters supported the Corporation's efforts to revise and reformat
the agreed-upon procedures in Schedule A to Appendix A.
Regarding the specific changes to the procedures, commenters
approved not having to list smaller overdrafts in the insiders'
extensions list. Permitting internal auditors to do the same amount of
testing on holding companies as external auditors was also supported.
Commenters also agreed with the amendment to Sec. 363.4(b) to clarify
that the attestation by the independent public accountant concerning
compliance with Designated Laws is not a document available to the
public.
One respondent recommended that the FDIC limit the time in which it
may require the review of a large institution's quarterly financial
statements to no later than 30 days after the end of each quarter. This
suggestion was not adopted because the FDIC anticipates that any
request would be made prior to that time. Moreover, since this
authority has never been used, the need for a time limit has not been
established.
As discussed in the following paragraphs, the FDIC has considered
respondents' comments concerning the specific aspects of the proposed
amendments to Part 363, Appendix A to Part 363, and Schedule A to
Appendix A.
A. Amendments to Part 363
One commenter suggested that the FDIC define ``large institution''
for purposes of section 363.5, Audit committees, as institutions with
$5 billion or more in total assets. The FDIC previously defined that
term to mean any insured depository institution with total assets
exceeding $3 billion when it adopted Part 363 in 1993 and is not
convinced the definition should be changed. Another commenter
recommended that when dealing with reporting by a holding company, the
term ``large customer'' in section 363.5 should be compared to the
assets of an entire holding company, not any single institution.
However, section 314(a)(2) of the RCDRIA precludes such a change
because it provides that ``the audit committee of the holding company
of [a large] institution shall not include any large customers of the
institution.'' [Emphasis added.]
B. Amendments to Appendix A to Part 363--Guidelines and Interpretations
The amendments to Appendix A that are discussed below are
identified by the number and caption of the revised Guideline.
4. Comparable Services and Functions. Two commenters suggested that
the rule be revised to require that when covering a holding company,
the accountant's attestation on the adequacy of internal controls over
financial reporting cover all subsidiaries of that holding company,
including subsidiaries that are not insured depository institutions.
These commenters stated that professional standards for attestation
engagements (i.e., Statement of Standards for Attestation Engagements
No. 2, ``Reporting on an Entity's Internal Control Structure Over
Financial Reporting'' (AICPA, Professional Standards, vol. 1, AT sec.
400), which superseded Statement of Auditing Standards No. 30,
``Reporting on Internal Accounting Control) require that all entities
covered by the financial report must be included in the attestation on
internal controls for financial reporting. However, the statute applies
only to insured depository institutions. Thus, the FDIC may not have
the authority to enforce the rule against other entities. Nevertheless,
the FDIC would not take exception to the inclusion of all entities
covered by the financial report in the internal control attestation.
9. Safeguarding of Assets. Numerous commenters appeared to
misunderstand the proposed revision of this guideline. It was not
intended to require the use of the phrase ``safeguarding of assets'' in
either the management report or accountant's attestation, and the final
amendment so states. The proposed replacement of the two sentences of
the original Guideline with specific references to types of
safeguarding has been revised. The sentence from the original
Guideline, ``The FDIC does not require the accountant to attest to the
adequacy of safeguards, but does require the accountant to determine
whether
[[Page 6491]]
safeguarding policies exist,'' which had been proposed for elimination,
is being retained.
32. Duties. In this Guideline's discussion of the audit committee's
duty to review the reports prepared by management and the independent
public accountant under this rule, the words ``the reports'' have been
changed to ``their respective reports.'' This clarifies that the audit
committee should review management reports with management, and the
reports of the independent public accountant with the accountant.
C. Amendments to Schedule A to Appendix A
Several commenters expressed concern about the action an accountant
must take when a change occurs in the information that had previously
been provided to the accountant in a written representation. A new
statement has been added to Schedule A to clarify that unless otherwise
stated, the date of any required representation should be the same as
the date of the attestation report, and the representation should
provide information available as of that date.
A new sentence also has been added at the beginning of Schedule A
explaining that where any representation is required, it should be
obtained in writing.
One commenter observed that the agreed-upon procedures required
that calculations be compared to the total risk-based capital reported
on the bank Reports of Condition and Income (Call Report). However,
this amount, which was formerly reported in item 3 of Schedule RC-R,
was deleted from the Call Report as of March 31, 1995, but the Federal
Financial Institutions Examination Council has approved its restoration
to the Call Report in March 1996. Therefore, no change is made to
Schedule A. Nevertheless, for the period this item is not reported in
the bank Call Report, no exception need be reported for the inability
to perform this comparison procedure.
1. Section I. Procedures for Individual Institutions
Many suggestions for clarifying the text were adopted in the final
rule.
a. Loans to Insiders. In response to concern about the burden
associated with the amount of information that the accountant must
read, the procedures in section I.A.1. of Schedule A of Appendix A have
been revised to more specifically identify the sections and paragraphs
of the laws and regulations that must be read. More specifically, the
accountant is required to read only those laws and regulations that
pertain to the institution based on its charter and primary federal
banking agency. To lessen the burden of reading all board of directors
and appropriate committee minutes and all SEC filings, the final
procedures have been revised to require the accountant to read only
those documents which management represents contain pertinent insider
lending information. In addition, Tables 1 and 2, which identify the
designated laws and regulations, have been included at the end of
Schedule A to Appendix A to clarify the applicable reading for each
type of insured institution.
Several respondents expressed concerned about the burden of
obtaining or maintaining all ``other records'' about insider loans in
one location when they had numerous officers and worldwide operations.
This reflected an apparent misunderstanding of the requirement in
paragraph I.A.2.a.(4) of Schedule A to Appendix A. Federal Reserve
Board Regulation O permits institutions to conduct an annual survey of
all insiders or to maintain ``other records'' rather than the survey.
The proposed wording, ``and/or,'' was drafted to try to accommodate
this Regulation O provision. However, for clarity, only the word ``or''
is used in the final amendment so that it is understood that all
insider loan records need not be accumulated in one location in order
for these procedures to be performed.
To make the procedures more consistent with the requirements of
Regulation O and the operations of many institutions, footnote 2 has
been revised to permit overdrafts of $1,000 or less without overdraft
protection, and overdrafts of $5,000 or less with overdraft protection,
to be omitted from the Insiders Extensions List.
Many commenters sought clarification of the phrase ``most recently
completed Call Report.'' They inquired whether the FDIC meant the most
recently completed Call Report whether or not it had been filed, the
most recently filed Call Report whether or not its editing had been
completed by the appropriate federal banking agency for release to the
public, or the most recently filed Call Report that was available for
release to the public. Appendix A has been revised throughout to
indicate that the most recently filed Call Report, whether or not it is
available for release to the public, should be used. In this regard, a
new footnote has been added to describe what should be done when the
procedures call for information during the previous fiscal year and a
Call Report for a date other than a calendar year-end Call Report is
used. The footnote indicates that the accountant should use information
pertaining to the period beginning from the date of the most recently
filed Call Report back to the latest Call Report date for which these
procedures were performed in the prior year.
The proposal required management to represent that any persons
``excluded'' from being executive officers were named as such in a
board resolution or the by-laws. Many commenters stated that boards
typically ``include'' persons as executive officers either specifically
by name or by specific office occupied. Paragraph I.A.2.a.(7)(b) of
Schedule A has been revised to require management to confirm the
``inclusion'' of executive officers by board resolution or in the by-
laws.
Commenters also stated that requiring accountants to trace and
agree every loan and extension of credit on the Insiders Extensions
List in Paragraph I.A.2.b.(2) of Schedule A was burdensome in a large
institution with many officers and directors. To lessen that burden,
the final regulation has been changed so that only a ``sample'' of such
loans needs to be traced and agreed.
The proposal considered the following to be issues for which boards
of directors would have adopted specific policies: revising the
institution's policies to reflect subsequent changes in laws and
regulations; educating employees about legal requirements and
management's related policies and procedures; and reporting insider
loans to regulatory agencies on the institution's Call Report or TFR.
However, these issues are not typically addressed in board policies.
For that reason, although they had been included in the existing
regulation, they have been removed from Paragraph I.A.3.b. of Schedule
A.
Several commenters suggested that the FDIC set size limits for the
samples to be tested under the various agreed-upon procedures in
Schedule A. The FDIC remains opposed to this because it believes that
setting sample sizes for testing should remain the responsibility of
the auditing profession. The American Institute of Certified Public
Accountants has previously suggested the following sample sizes for
purposes of testing under Part 363. The FDIC has raised no objection.
------------------------------------------------------------------------
Population No. (N) Sample size
------------------------------------------------------------------------
100 or greater............................ 60
50 to 100................................. 25
0 to 50................................... N or 20, whichever is
smaller
------------------------------------------------------------------------
[[Page 6492]]
There were many comments on Paragraphs I.A.5.b.(2) and (3) of
Schedule A, which address the calculation of an institution's
individual lending limit and the number of transactions involving each
insider in the sample that must be tested. The Offices of the
Comptroller of the Currency (OCC) and Thrift Supervision (OTS) now
permit institutions to calculate the individual lending limit as of the
Call Report or TFR date immediately preceding the loan origination
date, rather than requiring them to calculate the limit on the exact
date the loan was granted. Commenters urged the FDIC to incorporate
this method in the procedures. They also suggested that the burden of
these procedures could be reduced by testing one transaction per
insider, not all types of transactions, and that eliminating or
substantially lengthening the time frame for comparing the terms of
transactions to see whether they are preferential. Many of these
changes have been made. However, the time frame for the comparison of
loans has not been eliminated. Instead, this time frame was extended
from the existing two weeks and proposed four weeks before or after the
granting of the loan to 90 days prior or subsequent to the grant date.
This provides a window of approximately six months in which to find
similar loans. The FDIC concluded that a longer period would not be
appropriate because significant changes in market interest rates may
occur during such a period. As an alternative, each insider loan in the
sample may be compared with the institution's approved policies
delineating the interest rate and other terms and conditions in effect
for similar extensions of credit to unaffiliated borrowers.
Commenters also requested that, for purposes of paragraph
I.A.5.b.(3), examples of ``similar extensions of credit'' and ``terms
of the transactions'' be included. Paragraph I.A.5.b.(3) has been
revised to include such examples.
The final wording of paragraph I.A.6.b.(4) has been narrowed so
that it applies only if the credit extended is a real estate loan
granted for the purchase, construction, maintenance, or improvement of
the executive officer's residence. The proposed wording would have
included home equity loans for general consumer purchases, but this
type of loan is not covered by the provision of the Designated Laws
being tested under paragraph I.A.6.b.(4).
Several commenters mentioned that performing the procedures based
on their most recently filed Call Report or TFR permitted them to
perform the procedures prior to year end, but requiring the use of the
reports on indebtedness to correspondent banks, which is not due until
January 31 of the following year, kept them from completing the
procedures in a timely manner. To remedy this problem, paragraph
I.A.9.a.(1) of the final rule permits institutions that use a calendar
year fiscal year to use the reports on indebtedness to correspondent
banks prepared for the prior year in order to perform the procedures.
Any duplication during the first year that this procedure may cause
need not be performed, and in future years the institution should
continue to use the preceding year's report. However, should an
institution that has previously made this choice decide to revert to
using the reports of indebtedness to correspondent banks filed in the
following year, it will be expected to perform the procedures for the
two years' reports so that continuity in the coverage of the procedures
is maintained.
b. Dividend Restrictions. A sentence has been added to explain that
since laws and regulations pertaining to dividend restrictions cover
institutions and not holding companies, the procedures in Part B should
be followed for each institution and subsidiary institution of a
holding company covered by this part. However, if the holding company
has more than five subsidiary institutions covered by this part, the
procedures may be performed on a sample of dividend declarations. The
number ``five'' was chosen based on sample sizes suggested by the
American Institute of Certified Public Accountants. The AICPA stated
that when there are fewer than 50 transactions in the population to be
sampled, the smaller of the total number of transactions, or 20 items,
were to be tested. In this regard, if each of five covered institutions
declared dividends quarterly, there would be 20 transactions to test.
Commenters suggested that the FDIC should permit the most recent
quarter end (or month end, if available) to be used for determining
whether the declaration of a dividend would cause the institution to be
undercapitalized rather than requiring the institution to perform this
calculation as of the exact date the dividend is declared. This
suggested method would be consistent with recent rulings by the OCC and
OTS that quarter-end Call Reports may be used for calculating legal
lending limits. The final rule permits use of quarter-end date.
2. Section II. Procedures for the Independent Public Accountant
The proposal would have required that if an internal auditor
performed part of the procedures in Section I, a summary of
``significant'' findings and management's response should be filed with
the FDIC and appropriate federal banking agency as part of the
institution's annual submission. However, it is now noted that if any
findings are ``significant,'' they should be disclosed in management's
report and attestation. For that reason, the word ``significant'' has
been deleted from Section II, but the requirement for a summary is
retained so that the agencies receive information about the internal
auditor's findings.
As proposed, the amount of testing the independent public
accountant would be required to perform under paragraph II.B.3.a. was
raised from 20 to 30 percent of the size of the sample tested by the
internal auditors. This change was suggested because the proposal
reduced the amount of testing that internal auditors would be required
to perform on a holding company. Several commenters stated the increase
was burdensome and unnecessary. The FDIC continues to believe that
independent public accountants will be performing far fewer tests than
under the current procedure and that some increase in the percentage is
warranted. For that reason and to limit burden, the percentage has been
reduced to 25 percent in the final rule.
The changes and reformatting in the procedures from the current
rule to the final rule are outlined in the Table A below:
[[Page 6493]]
Table A.--Reformatting Changes to Schedule A to Appendix A
----------------------------------------------------------------------------------------------------------------
Subject Old section I New section I
----------------------------------------------------------------------------------------------------------------
Insider loans:
Designated Laws and Regulations........... A.1............................ A.1.
General Information....................... A.2.a.......................... A.2.a.
Calculations.............................. A.2.b.......................... A.4.
Policies and Procedures................... A.2.c.......................... A.3.
Insider Transactions...................... A.2.d.......................... A.5.
Loans to Correspondent Banks.............. A.2.d.(1)...................... A.9.
Aggregate Indebtedness.................... A.2.d.(2)(a) A.2.d.(7)......... A.2.b.(2) A.7.
Executive Officers........................ A.2.d.(2)(b) & (c) A.2.e.(ii).. Deleted A.6.
Insider Extensions of Credit.............. A.2.d.(2)(d) & (e) A.2.d.(5) & A.5.
(6).
Overdrafts................................ A.2.d.(3)...................... A.8.
Reports on Indebtedness to Correspondent A.2.e.......................... A.9.
Banks.
Dividend Restrictions:
Designated Laws and Regulations........... B.1............................ B.1.
General Information....................... B.2............................ B.2.
Policies and Procedures................... B.2.b.......................... B.3.
Board Minutes............................. B.2.c.......................... B.4.
Calculation of Undercapitalization........ B.2.d.......................... B.5.
Dividends Declared by Banks............... B.2.e.......................... B.6.
Dividends Declared by Savings Associations B.2.f.......................... B.7
----------------------------------------------------------------------------------------------------------------
Subject Old section II New section II
----------------------------------------------------------------------------------------------------------------
Procedures for the independent public
accountant:
Designated Laws and Regulations........... A. & B.1....................... A. & B.1.
Internal Auditor's Workpapers............. B.2............................ B.2
Testing................................... C.............................. B.3.
Reports Concerning Holding Companies...... D.............................. B.4.
----------------------------------------------------------------------------------------------------------------
D. Timing and Effective Date
Since the majority of covered institutions have fiscal years that
coincide with the calendar year, many are in the process of preparing
annual reports and having the agreed-upon procedures performed. In
order to make this process less burdensome for institutions and their
accountants, the FDIC will raise no objection if an institution chooses
to have its independent public accountant perform the agreed-upon
procedures in Schedule A to Appendix A of the existing rule, the
February 1995 proposal, or this final amendment to Schedule A to
Appendix A for fiscal years ending on or before March 31, 1996.
However, when an institution and its independent public accountant
choose a version of the agreed-upon procedures for the fiscal year, the
accountant must use a single version of the procedures for both of the
Designated Laws. For any institution with a fiscal year that ends after
March 31, 1996, the accountant should use the procedures of this
amendment.
List of Subjects in 12 CFR Part 363
Accounting, Attestation, Audit committee, Banks, banking, Internal
controls, Management letter, Peer review, Reporting and recordkeeping
requirements.
For the reasons set forth in the preamble, the Board of Directors
of the FDIC hereby amends Part 363 of title 12, chapter III, of the
Code of Federal Regulations as follows:
PART 363--ANNUAL INDEPENDENT AUDITS AND REPORTING REQUIREMENTS
1. The authority citation for Part 363 continues to read as
follows:
Authority: 12 U.S.C. 1831m.
2. Section 363.1 is amended by revising paragraph (b) to read as
follows:
Sec. 363.1 Scope.
* * * * *
(b) Compliance by subsidiaries of holding companies. (1) The
audited financial statements requirement of Sec. 363.2(a) may be
satisfied for an insured depository institution that is a subsidiary of
a holding company by audited financial statements of the consolidated
holding company.
(2) The other requirements of this part for an insured depository
institution that is a subsidiary of a holding company may be satisfied
by the holding company if:
(i) The services and functions comparable to those required of the
insured depository institution by this part are provided at the holding
company level; and
(ii) The insured depository institution has as of the beginning of
its fiscal year:
(A) Total assets of less than $5 billion; or
(B) Total assets of $5 billion or more and a composite CAMEL rating
of 1 or 2.
(3) The appropriate federal banking agency may revoke the exception
in paragraph (b)(2) of this section for any institution with total
assets in excess of $9 billion for any period of time during which the
appropriate federal banking agency determines that the institution's
exemption would create a significant risk to the affected deposit
insurance fund.
3. Section 363.4 is amended by revising paragraph (b) to read as
follows:
Sec. 363.4 Filing and notice requirements.
* * * * *
(b) Public availability. The annual report in paragraph (a)(1) of
this section shall be available for public inspection.
* * * * *
4. Section 363.5 is amended by revising paragraph (b) to read as
follows:
Sec. 363.5 Audit committees.
* * * * *
(b) Committees of large institutions. The audit committee of any
insured
[[Page 6494]]
depository institution that has total assets of more than $3 billion,
measured as of the beginning of each fiscal year, shall include members
with banking or related financial management expertise, have access to
its own outside counsel, and not include any large customers of the
institution. If a large institution is a subsidiary of a holding
company and relies on the audit committee of the holding company to
comply with this rule, the holding company audit committee shall not
include any members who are large customers of the subsidiary
institution.
5. Appendix A to Part 363 is amended by revising paragraphs 4(c),
9, 24, 31, the introductory text of paragraph 32, footnote 2 in
paragraph 10, and footnote 3 in paragraph 15(b) to read as follows:
Appendix A to Part 363--Guidelines and Interpretations
* * * * *
4. Comparable Services and Functions. * * *
* * * * *
(c) Prepares and submits the management assessments of the
effectiveness of the internal control structure and procedures for
financial reporting (internal controls), and compliance with the
Designated Laws defined in guideline 12 based on information
concerning the relevant activities and operations of those
subsidiary institutions within the scope of the rule.
* * * * *
9. Safeguarding of Assets. ``Safeguarding of assets'', as the
term relates to internal control policies and procedures regarding
financial reporting, and which has precedent in accounting
literature, should be encompassed in the management report and the
independent public accountant's attestation discussed in guideline
18. Testing the existence of and compliance with internal controls
on the management of assets, including loan underwriting and
documentation, represents a reasonable implementation of section 36.
The FDIC expects such internal controls to be encompassed by the
assertion in the management report, but the term ``safeguarding of
assets'' need not be specifically stated. The FDIC does not require
the accountant to attest to the adequacy of safeguards, but does
require the accountant to determine whether safeguarding policies
exist.\1\
\1\ It is management's responsibility to establish policies
concerning underwriting and asset management and to make credit
decisions. The auditor's role is to test compliance with
management's policies relating to financial reporting.
---------------------------------------------------------------------------
10. * * * \2\
\2\ In considering what information is needed on safeguarding of
assets and standards for internal controls, management may review
guidelines provided by its primary federal regulator; the Federal
Financial Institutions Examination Council's ``Supervisory Policy
Statement on Securities Activities''; the FDIC's ``Statement of
Policy Providing Guidance on External Auditing Procedures for State
Nonmember Banks'' (Jan. 16, 1990), ``Statement of Policy Regarding
Independent External Auditing Programs of State Nonmember Banks''
(Nov. 16, 1988), and Division of Supervision Manual of Examination
Policies; the Federal Reserve Board's Commercial Bank Examination
Manual and other relevant regulations; the Office of Thrift
Supervision's Thrift Activities Handbook; the Comptroller of the
Currency's Handbook for National Bank Examiners; standards published
by professional accounting organizations, such as the American
Institute of Certified Public Accountants' (AICPA) Statement on
Auditing Standards No. 55, ``Consideration of the Internal Control
Structure in a Financial Statement Audit''; the Committee of
Sponsoring Organizations (COSO) of the Treadway Commission's
Internal Control--Integrated Framework, including its addendum on
safeguarding of assets; and other internal control standards
published by the AICPA, other accounting or auditing professional
associations, and financial institution trade associations.
---------------------------------------------------------------------------
* * * * *
15. * * *
(b) * * * \3\
\3\ These would include Standards for Performing and Reporting
on Peer Reviews, codified in the SEC Practice Section Reference
Manual, and Standards for Performing and Reporting on Peer Reviews,
contained in Volume 2 of the AICPA's Professional Standards.
---------------------------------------------------------------------------
* * * * *
24. Relief from Filing Deadlines. Although the reasonable deadlines
for filings and other notices established by this part are specified,
some institutions may occasionally be confronted with extraordinary
circumstances beyond their reasonable control that may justify
extensions of a deadline. In that event, upon written application from
an insured depository institution, setting forth the reasons for a
requested extension, the FDIC or appropriate federal banking agency
may, for good cause, extend a deadline in this part for a period not to
exceed 30 days.
* * * * *
31. Holding Company Audit Committees. When an insured depository
institution subsidiary fails to meet the requirements for the holding
company exception in Sec. 363.1(b)(2) or maintains its own separate
audit committee to satisfy the requirements of this part, members of
the independent audit committee of the holding company may serve as the
audit committee of the subsidiary institution if they are otherwise
independent of management of the subsidiary, and, if applicable, meet
any other requirements for a large subsidiary institution covered by
this part. However, this does not permit officers or employees of a
holding company to serve on the audit committee of its subsidiary
institutions. When the subsidiary institution satisfies the
requirements for the holding company exception in Sec. 363.1(b)(2),
members of the audit committee of the holding company should meet all
the membership requirements applicable to the largest subsidiary
depository institution and may perform all the duties of the audit
committee of a subsidiary institution, even though such holding company
directors are not directors of the institution.
32. Duties. The audit committee should perform all duties
determined by the institution's board of directors. The duties should
be appropriate to the size of the institution and the complexity of its
operations, and include reviewing with management and the independent
public accountant the basis for their respective reports issued under
Secs. 363.2(a) and (b) and 363.3(a) and (b). Appropriate additional
duties could include:
* * * * *
6. Schedule A to Appendix A to Part 363 is revised to read as
follows:
Schedule A to Appendix A--Agreed Upon Procedures for Determining
Compliance With Designated Laws
1. The Agreed Upon Procedures set forth in this schedule are
referred to in guideline 19. They should be followed by the
institution's independent public accountant (or, with respect to the
procedures set forth in section I of this schedule, by the
institution's internal auditor if the accountant is to perform the
procedures set forth in section II) in order to permit the accountant
to report on the extent of compliance with the Designated Laws (defined
in guideline 12) as required by sections 36(e)(1) and (2). Unless
otherwise stated, the date of any required representation should be the
same as the date of the attestation report and the representation
should provide information to the extent available as of that date.
2. For purposes of this Schedule A, ``insiders'' means directors,
executive officers, and principal shareholders, and includes their
related interests. All terms not defined in this schedule have the
meanings given them in this part, the Guidelines, and professional
accounting and auditing literature.
3. Additional guidance concerning the role of the institution, its
internal auditor, and its independent public accountant in assessing
the institution's compliance with the Designated Laws is set forth in
the Guidelines.
Section I--Procedures for Individual Institutions
The following procedures should be performed by the institution's
independent public accountant in accordance with generally accepted
standards for attestation engagements, or by the institution's internal
auditor if the procedures set forth in section II of
[[Page 6495]]
this schedule are to be performed by the independent public accountant.
(See section II.B.3. for information concerning testing by the
independent public accountant when the institution's internal auditor
is performing the procedures in Section I.)
A. Loans to Insiders. To the extent permitted by Sec. 363.1(b)(2),
these procedures may be performed on a holding company basis rather
than at each covered subsidiary insured depository institution.
1. Designated Laws. The following federal laws and regulations
(Designated Insider Laws), to the extent that they are applicable to
the institution,1 should be read:
\1\ The laws and regulations applicable to each type of
institution are listed in Table 1 of this Schedule A to Appendix A.
---------------------------------------------------------------------------
a. Laws: 12 U.S.C. 375a, 375b, 1468(b), 1828(j)(2), and
1828(j)(3)(B); and
b. Regulations: 12 CFR 23.5, 31, 215, 337.3, 349.3, and 563.43.
2. General.
a. Information. Obtain from management of the institution the
following information for the institution's fiscal year: 2
\2\ If the institution chooses to have these procedures
performed using its most recently filed Call Report rather than its
year end Call Report, all references to ``fiscal year'' in these
procedures shall mean the period beginning with the latest Call
Report date for which these procedures were performed in the prior
year and ending with the date of the most recently filed Call
Report. If these procedures were not previously performed, the 12
month period immediately preceding the date of the most recently
filed Call Report (or such shorter period during which the
institution was covered by this Part 363) should be used.
---------------------------------------------------------------------------
(1) Management's assessment of compliance with the Designated
Insider Laws;
(2) All minutes (including minutes drafted, but not approved) of
the meetings of the board and of those committees of the board which
management represents have been delegated authority pertaining to
insider lending;
(3) The relevant portions of reports of examination, supervisory
agreements, and enforcement actions issued by the institution's primary
federal and state regulators, if applicable, which management
represents contain information pertaining to insider lending;
(4) The annual survey which identifies all insiders of the
institution (pursuant to 12 CFR 215.8(b)) or other records maintained
on insiders of the institution's affiliates (pursuant to 12 CFR
215.8(c));
(5) The relevant portions of the following Securities Exchange Act
of 1934 filings, which management represents contain information
pertaining to insider lending:
(a) Forms 10-K, 10-Q, and 8-K and proxy statements (or information
statements) filed with the SEC, Federal Reserve Board, OCC, or OTS, or
(b) Forms F-2, F-3, and F-4 and proxy statements (or information
statements), filed with the FDIC;
(6) A list of loans, including overdrafts of executive officers and
directors,3 and other extensions of credit to insiders (including
their related interests) outstanding at any time during the fiscal year
(and which identifies those extensions granted during the year). This
list should also include the amount outstanding of each extension of
credit as of the date of the most recently filed Call Report or TFR
(Insider Extensions List); and
\3\ Management may exclude from this list overdrafts of an
executive officer or director in an aggregate amount of $1,000 or
less without overdraft protection and those of $5,000 or less with
overdraft protection as specified in 12 CFR 215.3(b)(6) if
management provides the independent accountant with a representation
that policies and procedures are in effect to report as extensions
of credit all overdrafts that do not meet the criteria listed in
paragraphs A.8.a.(2)(a) through (c) of this section.
---------------------------------------------------------------------------
(7) Management's representation concerning:
(a) The completeness of the Insider Extensions List; 4 and
\4\ See footnote 3 of this schedule.
---------------------------------------------------------------------------
(b) The inclusion of all required insiders on the annual survey
obtained in paragraph A.2.a.(4) of this section including persons who
have been designated as executive officers by resolution of the board
or a committee of the board or in the by-laws of the institution.
b. Procedures:
(1) Read the foregoing information.
(2) Trace and agree a sample of insider loans and other extensions
of credit disclosed in the documents listed in paragraphs A.2.a.(2)
through (5) of this section to see that they are included on the
Insider Extensions List.
3. Policies and Procedures.
a. Information. Obtain the institution's written policies and
procedures concerning its compliance with the Designated Insider Laws,
including any written ``Code of Ethics'' or ``Conflict of Interest''
policy statements. If the institution has no written policies and
procedures, obtain a narrative from management that describes the
methods for complying with such laws and regulations, and includes
provisions similar to those listed in paragraph A.3.b. of this section.
b. Procedures. Ascertain that the policies and procedures include,
or incorporate by reference, provisions consistent with the Designated
Insider Laws for:
(1) Defining terms;
(2) Restricting loans to insiders;
(3) Maintaining records of insider loans;
(4) Requiring reports and/or disclosures by the institution and by
executive officers, directors, and principal shareholders (and their
related interests);
(5) Disseminating policy information to employees and insiders; and
(6) Prior approval of the board of directors.
4. Calculations of Lending Limits.
a. Information. Obtain management's calculation of the following
items as of the date of the institution's most recently filed Call
Report or TFR and as of a Call Report or TFR date six or nine months
earlier:
(1) The institution's unimpaired capital and surplus (the aggregate
lending limit for all insiders); and
(2) The institution's individual lending limit (12 CFR 215.2(i)).
b. Procedures. Recalculate the amounts in paragraph A.4.a. of this
section for mathematical accuracy, and trace the amounts used in
management's calculations to the Call Reports or TFRs for the two dates
used in paragraph A.4.a. of this section.
5. Insider Extensions of Credit Granted.
a. Information. Obtain management's representation regarding
whether the terms and creditworthiness of insider extensions of credit
granted during the fiscal year are comparable to those that would have
been available to unaffiliated third parties.
b. Procedures. Select a sample of insiders who were granted or had
outstanding extensions of credit during the fiscal year from the
Insider Extensions List. For each extension of credit granted during
the fiscal year to each insider in the sample selected:
(1) If the amount of a credit granted during the year (when
aggregated with all other extensions of credit to that person and to
all related interests of that person) exceeds $500,000, determine
whether the minutes of the meetings of the board of directors indicate
that:
(a) The credit was approved in advance by the board, and
(b) The insider, if a director, abstained from participating
directly or indirectly in voting on the transaction;
(2) Obtain management's calculation of the institution's individual
lending limit for insiders pursuant to 12 CFR 215.2(i) as of the date
of the Call Report or TFR filed immediately prior to the date when the
extension of credit was granted, and if not already done under
[[Page 6496]]
paragraph A.4.b. of this section, recalculate the lending limits for
mathematical accuracy, and trace the amounts used in management's
calculations to the Call Report or TFR for that date. Ascertain whether
the amount of the extension of credit being granted to the insider,
when combined with all other extensions of credit to that insider,
exceeds such limit; and
(3) For one transaction involving each insider in the sample
selected in paragraph A.5.b. of this section, perform the procedures in
either paragraph (a) or (b) as follows:
(a) Select three (or such smaller number that exists) similar
extensions of credit (e.g., commercial real estate loans, floor plan
loans, residential mortgage loans, consumer loans) granted to
unaffiliated borrowers (i.e., persons who are not insiders or employees
of the institution or its affiliates) within 90 days before or after
the granting of the insider extension of credit. Compare the terms of
the transactions with unaffiliated borrowers (i.e., rate or range of
interest rates, maturity, payment terms, collateral, and any unusual
provisions or conditions) to those with the insiders, and note in the
findings any differences in the terms favorable to the insiders
compared to the terms of the transactions with unaffiliated borrowers.
(b) Alternatively, compare the terms of each insider transaction in
the sample to approved policies delineating the interest rate and other
terms and conditions then in effect for similar extensions of credit to
unaffiliated borrowers. Note in the findings any differences in the
terms favorable to the insiders compared to the terms of the approved
policies for an extension of credit to persons not affiliated with the
institution or its affiliates.
6. Limitation on Extensions of Credit to Executive Officers.
a. Information. From the sample selected in paragraph A.5.b. of
this section, select the executive officers who were granted extensions
of credit during the fiscal year.
b. Procedures.
(1) For each executive officer selected, obtain management's
calculation as of the two dates used in paragraph A.4.a. of this
section of:
(a) The aggregate amount of extensions of credit to the executive
officer, and
(b) 2.5 percent of the institution's unimpaired capital and
surplus.
(2) Recalculate management's computations from paragraph A.6.b.(1)
of this section for mathematical accuracy. Trace amounts used in
management's computations from paragraph A.6.b.(1) to the Call Reports
or TFRs for the two dates used in paragraph A.4.a. of this section.
(3) Ascertain whether the aggregate amount of the extensions of
credit to the executive officer does not exceed the greater of $25,000
or 2.5 percent of the institution's unimpaired capital and surplus, but
in no event more than $100,000. The aggregate amount should exclude the
types of extensions of credit set forth in 12 CFR 215.5(c)(1) through
(3).
(4)(a) Obtain documentation for any credits for which management
represents that:
(i) The purpose is for the purchase, construction, maintenance, or
improvement of the executive officer's residence;
(ii) The credit is secured by a first lien on the residence; and
(iii) The executive officer owns or expects to own the residence
after the extension of credit.
(b) Note whether the documentation contains similar
representations.
(5) For each executive officer selected, ascertain that each
extension of credit granted during the fiscal year was:
(a) Preceded by submission of financial statements;
(b) Approved by, or, when appropriate, promptly reported to, the
board of directors no later than the next board meeting; and
(c) Made subject to the written condition that the extension of
credit will become, at the option of the institution, due and payable
at any time that the executive officer is indebted to other insured
institutions in an aggregate amount greater than the executive officer
would be able to borrow from the institution.
7. Aggregate Insider Extensions of Credit Outstanding.
a. Information. Obtain management's calculation of the aggregate
extensions of credit to executive officers, directors, and principal
shareholders of the institution and to their related interests,
excluding the types of extensions of credit set forth in 12 CFR
215.4(d)(3), as of the two dates selected in paragraph A.4.a. of this
section.
b. Procedures.
(1) Recalculate the amounts obtained in paragraph A.7.a. of this
section for mathematical accuracy and ascertain that this total,
excluding the types of extensions of credit set forth in 12 CFR
215.4(d)(3), is less than or equal to 100 percent of the institution's
unimpaired capital and surplus calculated in paragraph A.4.a.(1) of
this section.
(2) Using the sample of insiders selected in paragraph A.5.b. of
this section, trace and agree amounts outstanding from insiders in the
sample to the supporting documents, as applicable, for the line item
aggregating indebtedness of all insiders on the institution's most
recently filed Call Report or TFR.
8. Overdrafts.
a. Information. Select a sample of executive officers and directors
who had overdrafts outstanding during the fiscal year as shown on the
Insider Extensions List.
(1) For all overdrafts in the sample except those which are covered
by an overdraft protection line of credit with the same terms as
available to unaffiliated borrowers and meet the terms of that
overdraft protection line, obtain management's representation of the
history of the insider's overdrafts for the year and the completeness
of that history.
(2) If the institution's management has not provided a
representation as specified by footnote 3 to paragraph A.2.a.(6) of
this section, for each overdraft in the sample in an aggregate amount
of $1,000 or less for an executive officer or director who did not have
the overdraft covered by an overdraft protection line of credit, obtain
management's representation that:
(a) It believes the overdraft was inadvertent;
(b) The account was overdrawn in each case for no more than 5
business days; and
(c) The institution charged the executive officer or director the
same fee that it would charge any other customer in similar
circumstances.
b. Procedures. For each overdraft in the sample selected and used
in paragraph A.8.a.(1) of this section for which management did not
provide the representation in paragraph A.8.a.(2) of this section:
(1) Inquire whether cash items for the insider were being held by
the institution during the time that the overdraft was outstanding to
prevent additional overdrafts;
(2) Trace and agree subsequent payment by the insider of the
insider's overdrafts to records of th
FR Doc. 96-3569 Annual Independent Audits and Reporting Requirements
e account at the institution; and
(3) For overdrafts of executive officers and directors that were
paid by the institution for the executive officer or director from an
account at the institution:
(a) Trace and agree to a written, pre-authorized, interest-bearing
extension of credit plan that specifies a method of repayment; or
(b) Trace and agree to a written, pre-authorized transfer of funds
from
[[Page 6497]]
another account of the insider at the institution.
9. Reports on Indebtedness to Correspondent Banks.
a. Information. Obtain from management:
(1) A list of executive officers and principal shareholders and
related interests thereof that filed reports of indebtedness to a
correspondent bank. This list should be prepared by management from
reports of indebtedness submitted for the calendar year for which the
management assessment and independent public accountant's attestation
are being filed or, if the institution is on a calendar year fiscal
year, at management's option, for the immediately preceding year. If
the institution is not on a calendar year fiscal year, the list should
be prepared for the calendar year that ended during its fiscal year;
and
(2) Its representation concerning the completeness of the list
prepared for paragraph A.9.a.(1) of this section.
b. Procedures. Select a sample of executive officers, principal
shareholders, and related interests thereof from the list obtained in
paragraph A.9.a.(1) of this section. For each executive officer and
principal shareholder (or related interest thereof) included in the
sample, ascertain that the report(s) of indebtedness was (were) filed
with the board of directors (on or before the January 31 following the
calendar year in paragraph A.9.a.(1) of this section) and that such
report(s) state(s):
(1) The maximum amount of indebtedness during that calendar year;
(2) The amount of indebtedness outstanding 10 days prior to report
filing; and
(3) A description of the loan terms and conditions, including the
rate or range of interest rates, original amount and date, maturity
date, payment terms, collateral, and any unusual terms or conditions.
B. Dividend Restrictions. If the institution has declared any
dividends during the fiscal year, the following procedures should be
performed for each dividend declared. (These procedures are not
applicable to mutual institutions and insured branches of foreign
banks.) For an institution that is a subsidiary of a holding company,
the procedures that follow should be applied to each subsidiary
institution subject to this part (covered subsidiary) because the laws
and regulations restricting dividends apply to individual institutions
and not holding companies. However, if the annual report under Part 363
is being prepared on a holding company basis and the holding company
has more than five covered subsidiaries, the following procedures may
be applied to a sample of dividend declarations to the extent permitted
by Sec. 363.1(b) and Section II.B.3. of this schedule.
1. Designated Laws. The following federal laws and regulations
(Designated Dividend Laws), to the extent that they are applicable to
the institution (see paragraph B.2 of this section),\5\ should be read:
\5\ The laws and regulations applicable to each type of
institution are listed in Table 2 of this Schedule A to Appendix A.
---------------------------------------------------------------------------
a. Laws: 12 U.S.C. 56, 60, 1467a(f), 1831o; and
b. Regulations: 12 CFR 5.61, 5.62, 6.6, 7.6120, 208.19, 208.35,
325.105, 563.134, and 565.
2. General. The information requirements and procedures in
paragraphs B.2. through B.5. of this section are applicable to all
institutions. Paragraphs B.6. and B.7. of this section were designed to
be applicable to member banks (i.e., national banks and state member
banks) and federally-chartered savings associations, respectively.
However, the requirements in paragraphs B.6. and B.7. of this section
should be applied to a state nonmember bank or state savings
association if management represents that the state has dividend
restrictions substantially identical to those for a national bank or a
federally-chartered savings association.
a. Information. Obtain from management of the institution the
following information for the institution's most recent fiscal year:
(1) Its assessment of the institution's compliance with the
Designated Dividend Laws and any applicable state laws and regulations
cited in its assessment;
(2) A copy of any supervisory agreements with, orders by, or
resolutions of any regulatory agency (including a description of the
nature of any such agreements, orders, or resolutions) containing
restrictions on dividend payments by the institution; and
(3) Its representation whether dividends declared comply with any
restrictions on dividend payments under any supervisory agreements
with, orders by, or resolutions of any regulatory agency (including a
description of the nature of any such agreements, orders, or
resolutions).
b. Procedures.
(1) Read the foregoing information.
(2) If any restrictions on dividend payments exist in any documents
obtained in paragraph B.2.a.(2) of this section, test and agree
dividends declared with any such quantitative restrictions.
3. Policies and Procedures.
a. Information. Obtain the institution's written policies and
procedures concerning its compliance with the Designated Dividend Laws.
If the institution has no written policies and procedures, obtain from
the institution a narrative that describes the institution's methods
for complying with the Designated Dividend Laws, and includes
provisions similar to those in paragraph B.3.b of this section.
b. Procedures. Ascertain whether the policies and procedures
include, or incorporate by reference, provisions which are consistent
with the Designated Dividend Laws. These would include capital
limitation tests, including section 38 of the Federal Deposit Insurance
Act (12 U.S.C. 1831o), earnings limitation tests, transfers from
surplus to undivided profits, and restrictions imposed under any
supervisory agreements, resolutions, or orders of any federal or state
depository institution regulatory agency. In addition, for savings
associations, this would include prior notification to the OTS.
4. Board Minutes.
a. Information. Obtain the minutes of the meetings of the board of
directors for the most recent fiscal year to ascertain whether
dividends (either paid or unpaid) have been declared.
b. Procedures. Trace and agree total dividend amounts to the
general ledger records and the institution's most recently filed Call
Report or TFR.
5. Calculation of Undercapitalization.
a. Information. Obtain management's computation of the amount at
which declaration of a dividend would cause the institution to be
undercapitalized as of the quarter end (or more recent month end, if
available from management) immediately prior to the date on which each
dividend was declared during the fiscal year.
b. Procedures. Recalculate management's computation (for
mathematical accuracy) and compare management's calculations to the
amount of any dividend declared to determine whether it exceeded the
amount.
6. Dividends Declared by Banks.
a. Information. If the institution is a national bank or state
member bank, obtain management's computations concerning the bank's
compliance with 12 U.S.C. 56, ``Capital Limitation Test'', 12 U.S.C.
60, ``The Earnings Limitation Test'', and transfers from surplus to
undivided profits after declaration of the dividends referenced in
paragraph
[[Page 6498]]
B.4.a. of this section. If the institution is a state nonmember bank
and management represents that the bank is subject to state laws that
are similar to 12 U.S.C. 56 and 12 U.S.C. 60, obtain management's
corresponding computations.
b. Procedures. Recalculate management's computations (for
mathematical accuracy) and compare management's calculations to the
standards defined in the tests set forth in paragraph B.6.a. of this
section to ascertain whether the dividends declared fall within the
permissible levels under these standards. If dividends are not
permissible in the amounts declared under such standards, the
independent public accountant should ascertain that the dividends were
declared with the approval of the appropriate federal banking agency or
under any other exception to the standards.
7. Dividends Declared by Savings Associations.
a. Information. Obtain management's documentation of the OTS
determination whether the institution is a Tier 1, Tier 2, or Tier 3
savings association and management's computations of its capital ratio
after declarations of dividends under the Tier determined by the OTS.
For dividends declared, obtain copies of the savings association's
notifications to the OTS to ascertain whether notifications were made
at least 30 days before payment of any dividends.
b. Procedures. Recalculate management's computations (for
mathematical accuracy) and trace amounts used by management in its
calculations to the institution's TFRs.
Section II--Procedures for the Independent Public Accountant
If the internal auditor has performed the procedures set forth in
section I for either or both Designated Laws, the following procedures
may be performed by the independent public accountant if neither the
FDIC nor the appropriate federal banking agency has objected in
writing. The report of procedures performed and list of exceptions
found by the internal auditor, identifying the institution with respect
to which any exception was found, should be submitted to the audit
committee of the board of directors. Management should file a summary
of the internal auditor's findings and management's response to those
findings with the FDIC and the appropriate federal banking agency at
the same time as the independent public accountant's attestation report
is filed.6
\6\ Since this summary provides information similar to that
provided in the independent public accountant's report, the FDIC has
determined that the summary is exempt from public disclosure
consistent with the guidance in Guideline 18 in Appendix A to this
Part 363.
---------------------------------------------------------------------------
A. Review of Section I Procedures. Read the portion(s) of Section I
of this schedule that set forth the procedures performed by the
internal auditors.
B. Information and Procedures. Perform the following procedures:
1. Designated Laws. Read the Designated Laws referred to in Section
I of this schedule for the agreed-upon procedures performed by the
internal auditor. Obtain management's assessment contained in its
management report on the institution's or holding company's compliance
with the Designated Laws.
2. Internal Auditor's Workpapers.
a. Information. If an internal auditor performed the procedures in
Section I, obtain the internal auditor's workpapers documenting the
performance of those procedures on the institution and the chief
internal auditor's representation that:
(1) The internal auditor or audit staff, if applicable, performed
the procedures listed in section I on the institution;
(2) The internal auditor tested a sufficient number of transactions
governed by the Designated Laws so that the testing was representative
of the institution's volume of transactions;
(3) The workpapers accurately reflect the work performed by the
internal auditor and, if applicable, the internal audit staff;
(4) The workpapers obtained are complete; and
(5) The internal auditor's report, which describes the procedures
performed for the fiscal year as well as the internal auditor's
findings and exceptions noted, has been presented to the institution's
audit committee.
b. Procedures.
(1) Compare the workpapers to the procedures that are required to
be performed under section I. Report as an exception any procedures not
documented and any procedures for which the sample size is not
sufficient.
(2) Compare the exceptions and errors listed by the internal
auditor in its report to the audit committee to those found in the
workpapers, and report as an exception any exception or error found in
the internal auditor's workpapers and not listed in the internal
auditor's list of exceptions.
3. Testing.
a. The independent public accountant should perform the procedures
listed in Section I on representative samples of the insiders and/or
transactions of the institution to which the Designated Law applies. If
the institution's internal auditor performs the procedures in Section
I, the samples tested by the independent public accountant should be at
least 25 percent of the size of the samples tested by the internal
auditor although samples selected by the accountant should be from the
population at large. However, if there are so few transactions in any
area that the internal auditor cannot use sampling, but must test all
transactions, the independent public accountant should also test all
transactions.
b. If testing under this Schedule A to Appendix A is being
performed on a holding company with more than one subsidiary
institution that is subject to this Part 363, the samples tested should
include a combination of insiders and transactions from each covered
subsidiary with total assets (after deductions of intercompany amounts
that would be eliminated in consolidation) in excess of 25 percent of
the holding company's total assets every fiscal year. Samples should be
tested for each smaller covered subsidiary at least every other fiscal
year unless the holding company has more than eight covered
subsidiaries, in which case the samples to be tested for each
Designated Law should be drawn from each smaller covered subsidiary at
least every third fiscal year.
4. Reports Concerning Holding Companies. Only one report of any
exceptions noted from application of the procedures in section II
performed by the independent public accountant should be filed as
required by guideline 3 in Appendix A to this Part 363, but the report
should identify, for each exception or error noted, the identity of the
covered subsidiary to which it relates.
Tables to Schedule A to Appendix A
[[Page 6499]]
Tables to Schedule A to Appendix A
Table 1
--------------------------------------------------------------------------------------------------------------------------------------------------------
For engagements involving management assertions about compliance by:
Loans to insiders ----------------------------------------------------------------------------------------------
National banks State member banks State nonmember banks Savings associations
--------------------------------------------------------------------------------------------------------------------------------------------------------
Read the following parts and/or sections of Title 12 of the United States Code:
375a..................... Loans to Executive --Subsections
Officers of Banks. (g) and (h) only
375b..................... Prohibitions Respecting
Loans and Extensions of
Credit to Executive
Officers and Directors of
Banks, Political
Campaign, Committees, etc.
1468(b).................. Extensions of Credit to ...................... ...................... ......................
Executive Officers,
Directors, and Principal
Shareholders.
1828(j)(2)............... Provisions Relating to ...................... ......................
Loans, Extensions of
Credit, and Other
Dealings Between Member
Banks and Their
Affiliates, Executive
Officers, Directors, etc.
1828(j)(3)(B)............ Extensions of Credit Applies only ...................... Applies only
Applicability of to insured federal to insured state
Provisions Relating to branches of foreign branches of foreign
Loans, Extensions of banks. banks .
Credit, and Other
Dealings Between Insured
Branches of Foreign Banks
and Their Insiders.
Read the following parts and/or sections of Title 12 of the Code of Federal Regulations:
23.5..................... Application of Legal
Lending Limits;
Restrictions on
Transactions With
Affiliates.
31....................... Extensions of Credit to
National Bank Insiders.
215...................... Subpart A--Loans by Member (See 12 CFR Parts (See 12 CFR Parts
Banks to Their Executive 337.3 and 349.3). 563.43)
Officers, Directors, and
Principal Shareholders.
Subpart B--Reports of
Indebtedness of Executive
Officers and Principal
Shareholders of Insured
Nonmember Banks.
337.3.................... Limits on Extensions of ...................... ......................
Credit to Executive
Officers, Directors, and
Principal Shareholders of
Insured Nonmember Banks.
349.3.................... Reports by Executive ...................... ......................
Officers and Principal
Shareholders.
563.43................... Loans by Savings ...................... ...................... ......................
Associations to Their
Executive Officers,
Directors, and Principal
Shareholders.
--------------------------------------------------------------------------------------------------------------------------------------------------------
Table 2
--------------------------------------------------------------------------------------------------------------------------------------------------------
For engagements involving management assertions about compliance by:
Dividend restrictions -----------------------------------------------------------------------------------------------
National banks State member banks State nonmember banks Savings associations
--------------------------------------------------------------------------------------------------------------------------------------------------------
Read the following parts and/or sections of Title 12 of the United States Code:
56..................... Prohibition of Withdrawal
of Capital and Unearned
Dividends.
60..................... Dividends and Surplus Funds
1467a(f)............... Declaration of Dividends... ...................... ...................... ......................
1831o.................. Prompt Corrective Action--
Dividend Restrictions.
Read the following parts and/or sections of Title 12 of the Code of Federal Regulations:
5.61................... Payment of dividends;
capital limitation.
5.62................... Payment of dividends;
earnings limitation.
6.6.................... Prompt Corrective Action--
Dividend Restrictions.
7.6120................. Dividends Payable in
Property Other Than Cash.
208.19................. Payments of Dividends...... ......................
208.35................. Prompt Corrective Action... ......................
325.105................ Prompt Corrective Action... ...................... ......................
563.134................ Capital Distributions...... ...................... ...................... ......................
565.................... Prompt Corrective Action... ...................... ...................... ......................
--------------------------------------------------------------------------------------------------------------------------------------------------------
[[Page 6500]]
By order of the Board of Directors.
Dated at Washington, DC, this 6th day of February 1996.
Federal Deposit Insurance Corporation.
Jerry L. Langley,
Executive Secretary.
[FR Doc. 96-3569 Filed 2-20-96; 8:45 am]
BILLING CODE 6714-01-P
Complete official Federal Register PDF
FR Doc. 96-3518 Collection From Third Party Payers of Reasonable Costs of Healthcare Services
[Federal Register Volume 61, Number 35 (Wednesday, February 21, 1996)]
[Rules and Regulations]
[Pages 6540-6542]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-3518]
=======================================================================
-----------------------------------------------------------------------
[[Page 6541]]
DEPARTMENT OF DEFENSE
Office of the Secretary
32 CFR Part 220
Collection From Third Party Payers of Reasonable Costs of
Healthcare Services
AGENCY: Office of the Secretary, DoD.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: This final rule establishes a new rule under the Third Party
Collection program for determining the reasonable costs of health care
services provided by facilities of the uniformed services in cases in
which care is provided under TRICARE Resource Sharing Agreements. For
purposes of the Third Party Collection program such services will be
treated the same as other services provided by facilities of the
uniformed services. The final rule also lowers the high cost ancillary
threshold value from $60 to $25 per 24-hour day for patients that come
to the uniformed services facility for ancillary services requested by
a source other than a uniformed services facility. The reasonable costs
of such services will be accumulated on a daily basis. The Department
of Defense is now implementing TRICARE, a major structural reform of
the military health care system, featuring adoption of managed care
practices in military hospitals and by special civilian contract
provider networks. Consistent with TRICARE, as part of the Third Party
Collection Program, DoD is transitioning to a billing and collection
system in which all costs borne by DoD Medical Treatment Facilities
(MTFs) will be billed by the MTF providing the care. Thus, all care
performed within the facility, plus an added amount for supplemental
care purchased by the facility, will be billed by the MTF. Conversely,
care provided outside the MTF under other arrangements will be billed
by the provider of that care.
DATES: The amendment to Sec. 220.8(h) is effective March 15, 1996, and
the amendment to Sec. 220.8(k) is effective June 1, 1996.
FOR FURTHER INFORMATION CONTACT:
LCDR Patrick Kelly, (703) 681-8910.
SUPPLEMENTARY INFORMATION: DoD published the proposed rule on August 2,
1995 (60 FR 39285-39287). We received two responses from the public
during the 60 day public comment period. Both responses concerned
resource sharing fee-for-service arrangements these organizations had
negotiated prior to these proposed changes to 32 CFR part 220. Both
comments recommended that existing resource sharing fee-for-service
agreements continue to be treated as fee-for-service partnership
agreements on the grounds that the proposed changes would require
significant changes to their existing agreements. It is our view that
the advantages of the rule overcome the temporary difficulties for
TRICARE contractors. However, in response to these comments, we have
decided to defer until June 1, 1996, the effective date of this change.
This will give the affected contractors time to make appropriate
arrangements under the new procedure.
Currently, the Third Party Collection program regulation includes a
special rule for Partnership Program providers. The Partnership Program
allows civilian health care providers authorized to provide care under
the CHAMPUS program to provide services to CHAMPUS beneficiaries in
military hospitals and to receive payment from the CHAMPUS program.
Pursuant to CHAMPUS payment rules, CHAMPUS is always the secondary
payer to other health insurance plans; thus, CHAMPUS may not make
payment to the Partnership Program provider in cases in which the
beneficiary has other health insurance. To accommodate this CHAMPUS
requirement, the Third Party Collection program currently excludes
Partnership Program provider services from the military hospital
claims. Thus, for example, for inpatient hospital care, the Third Party
Payer now receives two claims, one from the military facility for the
hospital and ancillary costs, and a separate claim from the provider
for the professional services.
The current practice has produced some confusion in that it is a
departure from the normal procedure for claims arising from care
provided by military hospitals. In addition, because the Partnership
Program providers function independently from the military hospital's
management system, there are no DoD standards that govern the amounts
claimed by various Partnership Program providers.
DoD is now proceeding with implementation of a major managed care
program, called TRICARE, in its military medical treatment facilities
and CHAMPUS. Under TRICARE, regional managed care support contractors
will work with military treatment facilities on a wide range of managed
care activities. Among the activities of the managed care contractors
is the Resource Sharing Program. Under this program, the contractor
makes agreements with military hospitals in the region under which the
contractor will supply personnel and other resources in order to allow
the facility to increase the services it can make available to DoD
health care beneficiaries. The TRICARE program is the subject of a
final rule published October 5, 1995 (60 Federal Register 52078-52103),
with comprehensive regulations codified at 32 CFR 199.17. TRICARE
Resource Sharing Agreements are similar to Partnership Program payment
arrangements in that both result in civilian providers coming into the
military facility and providing care in that facility. However, a
significant difference exists in the method of payment. Under the
Partnership Program, payment is on a fee-for-service basis under the
normal operation of the CHAMPUS program. Under Resource Sharing, the
method of payment may be on a salary basis or other arrangement made by
the managed care support contractor. Under the Partnership Program, the
CHAMPUS second payer requirement applies. Under Resource Sharing
Agreements, the overall managed care contract separates the financing
from the normal CHAMPUS payment rules and allows for special payment
rules.
Based on this, we are establishing a special rule for Resource
Sharing Agreements. Or, more accurately, we are establishing the normal
rule for Resource Sharing Agreements. That is to say that care provided
in whole or in part through TRICARE Resource Sharing Agreements will be
handled for purposes of third party billings just like all other
services provided in the military facility, and will be billed at the
same rates. The special rule applicable to the Partnership Program
providers, under which two claims are made to the third party payer,
will not apply under TRICARE Resource Sharing Agreements. As a result,
care provided in military facilities will be billed to third party
payers in the same manner and same amount, regardless of whether the
professional services were provided by a military physician or Resource
Sharing Agreement provider.
The TRICARE program is being phased in region-by-region throughout
the United States. As it takes hold, the Partnership Program is being
phased out and replaced by TRICARE Resource Sharing Agreements. Thus,
possibly before the end of 1997, the special Partnership Program rule
will no longer be needed, and the simpler, single-claim rule for
TRICARE Resource Sharing Agreements will apply. We view this as both a
simplification and an improvement in the Third Party Collection
program.
DoD published the proposed rule on August 2, 1995, (60 Federal
Register
[[Page 6542]]
39285-39287). We received two responses from the public during the 60
day public comment period. Both responses concerned resource sharing
fee-for-service arrangements these organizations had negotiated prior
to these proposed changes to 32 CFR part 220. Both comments recommended
that existing resource sharing fee-for-service agreements continue to
be treated as fee-for-service partnership agreements on the grounds
that the proposed changes would require significant changes to their
existing agreements. It is our view that the advantages of the rule
overcome the temporary difficulties for TRICARE contractors. However,
in response to these comments, we have decided to defer until June 1,
1996, the effective date of this change. This will give the affected
contractors time to make appropriate arrangements under the new
procedure. With respect to regulatory procedures, this final rule is
not a significant regulatory action under Executive Order 12866, nor
does it significantly affect a substantial number of small entities
under the Regulatory Flexibility Act, nor impose new information
collection requirements under the Paperwork Reduction Act.
List of Subjects in 32 CFR Part 220
Claims, Health care, Health insurance.
For the reasons stated in the preamble, 32 CFR part 220 is amended
as follows:
PART 220--COLLECTION FROM THIRD PARTY PAYERS OF REASONABLE COSTS OF
HEALTHCARE SERVICES
1. The authority citation for 32 CFR part 220 continues to read as
follows:
Authority: 5 U.S.C. 301; 10 U.S.C. 1095.
2. Section 220.8 is amended by revising paragraphs (h) and (k) to
read as follows:
Sec. 220.8 Reasonable costs.
* * * * *
(h) Special rule for certain ancillary services ordered by outside
providers and provided by a facility of the Uniformed Services. If a
Uniformed Services facility provides certain ancillary services,
prescription drugs or other procedures requested by a source other than
a Uniformed Services facility and are not incident to any outpatient
visit or inpatient services, the reasonable cost will not be based on
the usual Diagnostic Related Group (DRG) or per visit rate. Rather, a
separate standard rate shall be established based on the accumulated
cost of the particular service, drugs, or procedures provided during a
twenty-four hour period ending at midnight. Effective March 15, 1996,
this special rule applies only to services, drugs or procedures having
a cost of at least $25. The reasonable cost for the services, drugs or
procedures to which this special rule applies shall be calculated and
made available to the public annually.
* * * * *
(k) Special rules for TRICARE Resource Sharing Agreements and
Partnership Program providers.
(1) In general. Paragraph (k) establishes special Third Party
Collection program rules for TRICARE Resource Sharing Agreements and
Partnership Program providers.
(i) TRICARE Resource Sharing Agreements are agreements under the
authority of 10 U.S.C. 1096 and 1097 between uniformed services
treatment facilities and TRICARE managed care support contractors under
which the TRICARE managed care support contractor provides personnel
and other resources to the uniformed services treatment facility
concerned in order to help the facility increase the availability of
health care services for beneficiaries. TRICARE is the managed care
program authorized by 10 U.S.C. 1097 (and several other statutory
provisions) and established by regulation at 32 CFR 199.17.
(ii) Partnership Program providers provide services in facilities
of the uniformed services under the authority of 10 U.S.C. 1096 and the
CHAMPUS program. They are similar to providers providing services under
TRICARE Resource Sharing Agreements, except that payment arrangements
are different. Those functioning under TRICARE Resource Sharing
Agreements are under special payment arrangements with the TRICARE
managed care contractor; those under the Partnership Program file
claims under the standard CHAMPUS program on a fee-for-service basis.
(2) Special rule for TRICARE Resource Sharing Agreements. Services
provided in facilities of the uniformed services in whole or in part
through personnel or other resources supplied under a TRICARE Resource
Sharing Agreement are considered for purposes of this part as services
provided by the facility of the uniformed services. Thus, third party
payers will receive a claim for such services in the same manner and
for the same costs as any similar services provided by a facility of
the uniformed services. This paragraph (k)(2) becomes effective June 1,
1996.
(3) Special rule for Partnership Program providers. For inpatient
services for which the professional provider services were provided by
a Partnership Program participant, the professional charges component
of the bill will be deleted from the claim from the facility of the
uniformed services. In these cases, the uniformed service facility's
claim shall not be considered solely a ``facility charge.'' As an all-
inclusive bill, room and board, nursing services and all ancillary
services (radiology, pharmaceuticals, respiratory therapy, etc.) are
factored into the bill. The third party payer will receive a separate
claim for professional services directly from the individual health
care provider. The same is true for the professional services provided
on an outpatient basis under the Partnership Program. Claims from
Partnership Program providers are not covered by 10 U.S.C. 1095 or this
part, but are governed by statutory and regulatory requirements of the
CHAMPUS program.
* * * * *
Dated: February 12, 1996.
L.M. Bynum,
Alternate OSD Federal Register Liaison Officer, Department of Defense.
[FR Doc. 96-3518 Filed 2-20-96; 8:45 am]
BILLING CODE 5000-04-M
Complete official Federal Register PDF
FR Doc. 96-3413 West Virginia Regulatory Program
[Federal Register Volume 61, Number 35 (Wednesday, February 21, 1996)]
[Rules and Regulations]
[Pages 6511-6537]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-3413]
-----------------------------------------------------------------------
DEPARTMENT OF THE INTERIOR
30 CFR Part 948
West Virginia Regulatory Program
AGENCY: Office of Surface Mining Reclamation and Enforcement (OSM),
Interior.
ACTION: Final rule; Approval of amendment.
-----------------------------------------------------------------------
SUMMARY: OSM is approving with certain exceptions an amendment to the
West Virginia permanent regulatory program under the Surface Mining
Control and Reclamation Act of 1977 (SMCRA). The amendment contains
revisions to the West Virginia Surface Coal Mining and Reclamation Act
(WVSCMRA) and the West Virginia Surface Mining Reclamation Regulations.
The amendment is intended to make the West Virginia program consistent
with SMCRA and the corresponding Federal regulations. Additional
amendments will be required to bring the West Virginia program into
full compliance with SMCRA.
The statutory revisions pertain to reorganization of the State
regulatory authority, extension of the State Abandoned Mine Lands and
Reclamation Act, definitions, surface mine reclamation inspector
qualifications, approval to remove more than 250 tons of coal during
prospecting, permit transfers, permit fees, premium payments for the
Workers' Compensation Fund, Small Operator Assistance Program (SOAP),
hydrologic protection, blasting schedules, preblast surveys,
termination of underground mining permits, excess spoil fills,
variances from approximate original contour, citizen complaint
investigations, issuance of notices of violation, abatement times for
notices of violation, civil penalty assessments for cessation orders
that are abated within twenty-four hours, permit suspension or
revocation, temporary relief, burden of proof, disclosure of ownership
and control information, reinstatement of right to mine, permit renewal
requirements, extensions to permitted areas, surface mining activities
not subject to the Act, National Pollutant Discharge Elimination system
(NPDES) permitting requirements, removal of
[[Page 6512]]
coal from existing waste piles, and environmental boards.
The revisions to State regulations concern applicability,
definitions, ownership and control information, maps, operation plan,
excess spoil disposal, new and existing structures, subsidence control
plan, removal of abandoned coal waste piles, approved person, fish and
wildlife resources, geologic information, transfer, assignment or sale
of a permit, permit renewals and revisions, incidental boundary
revisions, variances exemption for government financed highway or other
construction, permit issuance, permit conditions, improvidently issued
permits, haulroads, transportation and support facilities, intermittent
or perennial streams, design, construction, certification, inspection
and abandonment of sediment control and other water retention
structures, permanent impoundments, blasting, fish and wildlife,
revegetation, insurance, notice of intent to prospect, hydrologic
balance, steep slope mining, inactive status approval, variance from
approximate original contour, excess spoil disposal, contemporaneous
reclamation, control of fugitive dust, utility installations, disposal
of noncoal waste, backfilling and regrading underground mines,
subsidence control, small operator assistance program, citizen actions,
inspection frequencies, notices of violation, show cause orders, civil
penalty determinations, civil penalty assessment procedures, civil
penalty assessment rates, coal refuse certification, compaction
requirements for coal refuse areas, design, construction and
maintenance requirements for coal refuse impoundments, inspection,
examination and reporting requirements for coal refuse impoundments,
training and certification of blasters, and abandoned mine lands
reclamation.
EFFECTIVE DATE: February 21, 1996. Approval dates of regulatory program
amendments are listed in Sec. 948.15(p).
FOR FURTHER INFORMATION CONTACT:
Mr. James C. Blankenship Jr., Director, Charleston Field Office, Office
of Surface Mining Reclamation and Enforcement, 1027 Virginia Street
East, Charleston, WV 25301, Telephone (304) 347-7158.
SUPPLEMENTARY INFORMATION:
I. Background
II. Submission of the Amendment
III. Director's Findings
IV. Summary and Disposition of Comments
V. Director's Decision
VI. Procedural Determinations
I. Background
SMCRA was passed in 1977 to address environmental and safety
problems associated with coal mining. Under SMCRA, OSM works with
States to ensure that coal mines are operated in a manner that protects
citizens and the environment during mining, that the land is restored
to beneficial use following mining, and that the effects of past mining
at abandoned coal mines are mitigated.
Many coal-producing States, including West Virginia, have sought
and obtained approval from the Secretary of the Interior to carry out
SMCRA's requirements with their borders. In becoming the primary
enforcers of SMCRA, these ``primary'' States accept a shared
responsibility with OSM to achieve the goals of the Act. Such States
join with OSM in a shared commitment to the protection of citizens from
abusive mining practices, to be responsive to their concerns, and to
allow them full access to information needed to evaluate the effects of
mining on their health, safety, general welfare, and property. This
commitment also recognizes the need for clear, fair, and consistently
applied policies that are not unnecessarily burdensome to the coal
industry--producers of an important source of our Nation's energy.
Under SMCRA, OSM sets minimum regulatory and reclamation standards.
Each primacy State ensures that coal mines are operated and reclaimed
in accordance with the standards in its approved State program. The
States serve as the front-line authorities for implementation and
enforcement of SMCRA, while OSM maintains a State performance
evaluation role and provides funding and technical assistance to States
to carry out their approved programs. OSM also is responsible for
taking direct enforcement action in a primacy State, if needed, to
protect the public in cases of imminent harm or, following appropriate
notice to the State, when a State acts in an arbitrary and capricious
manner in not taking needed enforcement actions required under its
approved regulatory program.
Currently, there are 24 primacy states that administer and enforce
regulatory programs under SMCRA. These states may amend their programs,
with OSM approval, at any time so long as they remain no less effective
than Federal regulatory requirements. In addition, whenever SMCRA or
implementing Federal regulations are revised, OSM is required to notify
the States of the changes to that they can revise their programs
accordingly to remain no less effective than the Federal requirements.
Background information on the West Virginia program, including the
Secretary's findings, the disposition of comments, and the conditions
of approval can be found in the January 21, 1981, Federal Register (46
FR 5915). Subsequent actions concerning the conditions of approval and
program amendments can be found at 30 CFR 948.10, 948.12, 948.13,
948.15, and 948.16.
II. Submission of the Amendment
In a series of three letters dated June 28, 1993, and July 30, 1993
(Administrative Record Nos. WV-888, WV-889 and WV-893), the West
Virginia Division of Environmental Protection (WVDEP) submitted an
amendment to its approved permanent regulatory program that included
numerous revisions to the West Virginia Surface Coal Mining and
Reclamation Act (referred to herein as ``the Act'', WVSCMRA Sec. 22A-3-
1 et seq.) and the West Virginia Surface Mining Reclamation Regulations
(CSR Sec. 38-2-1 et seq.). OSM approved the proposed revisions on
durable rock fills on August 16, 1996, (60 FR 42437-42443) and the
proposed revisions on bonding on October 4, 1995, (60 FR 51900-51918).
The remaining proposed revisions are the subject of this notice.
The statutory revisions pertain to reorganization of the State
regulatory authority, extension of the State Abandoned Mine Lands and
Reclamation Act, definitions, surface mine reclamation inspector
qualifications, approval to remove more than 250 tons of coal during
prospecting, permit transfers, permit fees, premium payments for the
Workers' Compensation Fund, SOAP, hydrologic protection, blasting
schedules, preblast surveys, termination of underground mining permits,
excess spoil fills, variances from approximate original contour,
citizen complaint investigations, issuance of notices of violation,
abatement times for notices of violation, civil penalty assessments for
cessation orders that are abated within twenty-four hours, permit
suspension or revocation, temporary relief, burden of proof, disclosure
of ownership and control information, reinstatement of right to mine,
permit renewal requirements, extensions to permitted areas, surface
mining activities not subject to the Act, National Pollutant Discharge
Elimination System (NPDES) permitting requirements, removal of coal
from existing waste piles, and environmental boards.
[[Page 6513]]
The revisions to State regulations concern applicability,
definitions, ownership and control information, maps, operation plan,
excess spoil disposal, new and existing structures, subsidence control
plan, removal of abandoned coal waste piles, approved person, fish and
wildlife resources, geologic information, transfer, assignment or sale
of a permit, permit revisions and renewals, incidental boundary
revisions, permit conditions, improvidently issued permits, exemptions
for government financed highway or other construction variances, permit
issuance, haulroads, transportation and support facilities,
intermittent or perennial streams, design, construction, certification,
inspection and abandonment of sediment control and other water
retention structures, permanent impoundments, blasting, fish and
wildlife, revegetation, insurance, notice of intent to prospect,
hydrologic balance, steep slope mining, inactive status approval,
variance from approximate original contour, excess spoil disposal,
contemporaneous reclamation, control of fugitive dust, utility
installations disposal of coal mine waste, backfilling and regrading
underground mines, subsidence control, small operator assistance
program, citizen actions, inspection frequencies, notices of violation,
show cause orders, civil penalty determinations, civil penalty
assessment procedures, civil penalty assessment rates, coal refuse
certification, compaction requirements for coal refuse areas, design,
construction and maintenance requirements for coal refuse impoundments,
and inspection, examination and reporting requirements for coal refuse
impoundments, training and certification of blasters, and abandoned
mine lands regulation.
OSM announced receipt of the proposed amendment in the August 12,
1993, Federal Register (58 FR 42903) and invited public comment on its
adequacy. Following this initial comment period, WVDEP revised the
amendment on August 18, 1994, and September 1, 1994, and May 16, 1995
(Administrative Record Nos. WV-933, WV-937, and WV-979B). OSM reopened
the comment period on August 31, 1994 (59 FR 44953), September 29, 1994
(59 FR 49619), and July 5, 1995 (60 FR 34934), and held public
meetings/hearings in Charleston, West Virginia on September 7, 1993,
October 27, 1994, and May 30, 1995.
III. Director's Findings
Only those revisions of particular interest are discussed below.
Any revisions not specifically discussed below are found to be no less
stringent than SMCRA and no less effective than the Federal
regulations. Revisions not discussed below contain language similar to
the corresponding Federal regulations, concern nonsubstantive wording
changes, revise cross-references and paragraph notations to reflect
organizational changes resulting from this amendment, or concern
program provisions for which there is no Federal counterpart and which
do not adversely affect other aspects of the West Virginia program.
A. Proposed Revisions to the West Virginia Code (Including numerous
revisions to the West Virginia Surface Coal Mining and Reclamation Act
(WVSCMRA)
1. Sec. 22-1-4 Through 8 Division of Environmental Protection
The State has reorganized the Division of Environmental Protection
under the Bureau of the Environment and abolished the Department of
Commerce, Labor and Environmental Resources under West Virginia House
Bill (H.B. 4030). Within the Bureau of Environment, Division of
Environmental Protection, the State established the Office of Abandoned
Mine Lands and Reclamation, and the Office of Mining and Reclamation.
The Office of Abandoned Mine Lands and Reclamation is given the
authority to administer and enforce the State's Abandoned Mine Lands
and Reclamation Act. The Office of Mining and Reclamation is given the
authority to administer and enforce the State's Surface Coal Mining and
Reclamation Act (under Sec. 22-1-7). The director is authorized to
appoint a Chief of each office who is accountable and responsible for
the performance of the duties, functions, and services of his or her
office (Sec. 22-1-8(a)). The provisions also authorize the director of
the division of environmental protection to employ legal counsel (H.B.
2523) (Sec. 22-1-6(d)(7)). The Director finds that the State regulatory
authority continues to have authority under State laws to implement,
administer, and enforce its State program. He is therefore approving
the proposed revisions to WVSCMRA Sec. 22-1-4 through 8. The Director
is also taking this opportunity to remove the required amendment at 30
CFR 948.16(c)(1), since it refers to the creation of the Division of
Mines and Minerals, which is now an obsolete designation.
2. Sec. 22-2 Abandoned Mine Lands and Reclamation Act
West Virginia proposes to revise its statute at section 22-2-2 to
reflect the extension of the abandoned land reclamation program and the
collection of fees which support it to September 30, 2004. The Director
finds that this revision is substantively identical to and therefore no
less stringent than section 402(b) of SMCRA.
West Virginia is also amending Sec. 22-2-4 to change the reference
to Public Law 95-87 to read ``Surface Mining Control and Reclamation
Act'', to change the reference to subdivision (3) to read subsection
(c), to change the reference to section 404 of Public Law 95-87 to read
section 402 of the Surface Mining Control and Reclamation Act, and to
delete references to ``administrative and personnel expenses'' for the
purposes of clarification. The Director finds that these revisions are
consistent with the Abandoned Mine Land Reclamation Act of 1990 and
satisfy 30 CFR 948.26(a), which is hereby removed.
The State is revising paragraph (c) by changing the ending date for
abandoned mine land fund eligibility for surface mining sites where the
surety became insolvent. The ending date for eligibility was changed
from October 1, 1991, to November 5, 1990. Paragraph (c) is also
revised by changing the reference to Public Law 95-87 to the Federal
Surface Mining and Reclamation Act of 1977, as amended. The Director
finds that the proposal is substantively identical to and therefore no
less stringent than section 402(g) of SMCRA.
3. Sec. 22-3-3 Definitions
a. Operator: The WVDEP proposes to define operator to mean any
person who is granted or who should obtain a permit to engage in any
activity covered by the WVSCMRA and any rule promulgated thereunder and
any person who engages in surface mining or surface mining and
reclamation operations, or both. The proposed definition states that
the term operator shall also be construed in a manner consistent with
the Federal program pursuant to SMCRA, as amended.
Section 701 of SMCRA defines operator to mean any person,
partnership, or corporation engaged in coal mining who removes or
intends to remove more than 250 tons of coal from the earth by coal
mining within 12 consecutive calendar months in any one location. In
support of the proposed definition the State submitted a policy
statement stating that WVDEP would interpret ``operator'' to include
all
[[Page 6514]]
persons who engage in surface mining or prospecting activities. This
policy statement was accompanied by a legal opinion from the General
Council for WVDEP which stated that the term ``operator'' as defined in
the WVSCMRA applies to a person who intends to prospect or engage in
coal exploration (Administrative Record No. WV-932). The Director
therefore finds that the proposed definition of operator at Sec. 22-3-3
of the WVSCMRA is no less stringent than the definition at section 701
of SMCRA and he is approving it.
b. Surface mine, surface mining or surface mining operations: The
WVDEP proposes to revise Sec. 22-3-3(u)(1) by inserting a semicolon
between ``reclamation'' and ``in-situ'' and a comma between
``cleaning'' and ``concentrating''. Also, at subsection 3(u)(2), the
exemption for permanent facilities not within the area being mined and
not directly involved in the excavation, storage, or processing of coal
has been removed from the definition. The Director finds that the
revisions to the definition of ``surface mining operation'', which
remove the exemption for certain permanent facilities and correct
errors in punctuation, satisfy the requirements of 30 CFR 948.16(c)(2)
and resolve the concerns which caused the Secretary not to approve the
definition at 30 CFR 948.12(c) and 30 CFR 948.13(a). Accordingly, he is
approving the proposed definition and removing the disapproval, set
aside, and required amendment provisions at 30 CFR 948.12(c),
948.13(a), and 948.16(c)(2).
4. Sec. 22-3-5 Surface Mining Inspectors and Supervisors
West Virginia proposes to change the probationary status for
surface mining supervisors and inspectors from one year to six months.
The Director has determined that this revision, for which there is no
direct Federal counterpart, is within the administrative discretion of
the regulatory authority, and is not inconsistent with the requirements
of SMCRA or the Federal regulations.
5. Sec. 22-3-7 Notice of Intent To Prospect
The State proposes to revise paragraph (f) to allow for the
promulgation of regulations, the development of application forms and
to require an application fee of $2,000 for prospecting operations
intending to remove more than 250 tons of coal. While there is no
direct Federal counterpart, the Director finds that proposed revisions
are consistent with the Federal requirements for coal exploration
permits at section 512 of SMCRA and are hereby approved.
6. Sec. 22-3-8 Surface Mining Reclamation Permit
The State has deleted subsections 8(a) and 8(b), and renumbered the
remaining subsections. The deleted subsections required coal mining
operations in existence at the time of the Secretary's approval (1981)
of the West Virginia program to obtain permits under the newly approved
program. The Director finds that the deletion of these out-of-date
provisions does not render the West Virginia program inconsistent with
SMCRA or the Federal regulations.
The State proposes to revise paragraph (1) of this section to allow
for the continued operation of a mine by the transferee pending
approval of the transfer application, and subject to the ownership and
control provisions at section 22-3-18(c). The Federal counterpart to
this provision at Sec. 506(b) of SMCRA does not refer specifically to
permit transfers. However, it does allow a successor in interest to
continue coal mining operations on the current permit while awaiting
approval of the regulatory of its application for a new permit. The
Director believes that allowing permit transfer applicants to mine
while they await a decision on their application for transfer of permit
is not inconsistent with the principles underlying Sec. 506(b) of
SMCRA, so long as the applicant is eligible for a permit Sec. 22-3-
18(c) (West Virginia's ownership and control provisions), and provides
adequate bond. Furthermore, the opportunity for public comment will
remain a meaningful one, since the regulatory authority may still
ultimately deny the application for the transfer based on information
obtained during the public comment period. Therefore, the Director is
approving the provision. West Virginia proposes to increase the surface
mining permit fee from $500 to $1,000 at paragraph (4). Also, as
provided in paragraph (h), the State proposes to make compliance with
the Workers' Compensation Program a requirement of permit approval.
There are no direct Federal counterparts. The Director finds that these
provisions are not inconsistent with the requirements of SMCRA or the
Federal regulations.
7. Sec. 22-3-9 Permit Application Requirements
West Virginia proposes to revise the eligibility requirements for
its Small Operator Assistance Program (SOAP) at paragraph (b). The
State is increasing the total annual production rate for SOAP
eligibility from 100,000 to 300,000 tons of coal. In addition, the
State has added language that identifies the services that are
reimbursable under SOAP. These new services include engineering
analyses and designs needed in the determination of probable hydrologic
consequences, cross-section maps and plans, geologic drilling and
statements of results of test borings and core samplings, preblast
surveys, fish and wildlife protection and enhancement plans, and the
collection of archaeological and historical information. The Director
finds that WVSCMRA Sec. 22A-3-9(b), as revised, is substantively
identical to and, therefore, no less stringent than the corresponding
SOAP provisions of section 507(c) of SMCRA.
At subsection 9(g), the State has added the word
``administratively'' in two locations to clarify that the provision
pertains to administratively complete applications. The term
``administratively complete application'' is defined at CSR 38-2-2.9.
The Director finds these changes to be consistent with section 510 of
SMCRA, and no less effective than the use of the term
``administratively complete application'' at 30 CFR 773.13 concerning
public participation in permit processing and the definition of the
term ``administratively complete'' at 30 CFR 701.5.
8. Sec. 22-3-9a Permit To Mine Two Acres or Less
The State has deleted (S.B. 579; June 7, 1991) this section which
contains special provisions governing surface mining operations of two
acres or smaller in size. Section 528(2) of SMCRA, which set forth the
corresponding Federal provisions, was repealed pursuant to Section 201
of Public Law 100-34. Therefore, the Director finds that the proposed
deletion will not render West Virginia's program less stringent than
SMCRA. In addition, the Director finds that the deletion of WVSCMRA
Sec. 22A-3-9a eliminates the need for further action regarding the
required amendments set forth at 948.16(c)(3), (4), (5) and (6), and
the disapproval and set-aside set forth at 30 CFR 948.12(d) and
948.13(b), respectively, and he is, therefore, removing them.
9. Sec. 22-3-13 Performance Standards
The State proposes to amend subparagraph (b)(10) to require that
operators avoid acid or toxic-mine drainage by preventing or removing
water from contact with toxic producing deposits, treating drainage,
and casing, sealing or managing boreholes, shafts and wells to keep
acid drainage from entering ground and surface waters. The Director
finds that this proposal is substantively identical to and, therefore,
[[Page 6515]]
no less stringent than, the corresponding Federal statute at section
515(b)(10)(A) of SMCRA.
West Virginia proposes to revise subparagraph (b)(15) to require
the mailing of the proposed blasting schedule to every resident within
one-half mile of the blasting site, and to provide any resident or
owner of a dwelling within one-half mile of any portion of the permit
area the right to a preblast survey. The Director finds that this
proposal is substantively identical to and, therefore, no less
stringent than, the corresponding Federal statute at section 515(b)(15)
of SMCRA.
In addition, the State proposes to revise subparagraph (b)(16)(C)
to provide that underground mining permits shall terminate if
operations have not commenced within three years of the date of permit
issuance. The Director finds that this proposal is substantively
identical to and, therefore, no less stringent than section 506(c) of
SMCRA.
The State also proposes to revise subparagraph (b)(22) to require
that rock to be used in durable rock fills not slake in water and not
degrade to soil material. The Director finds that this proposal is
substantively identical to and, therefore, no less effective than the
corresponding Federal provision set forth at 30 CFR 816.73(b).
Finally, West Virginia proposes to revise paragraph (e) to allow
the Director to promulgate rules that permit variances from approximate
original contour. The Director finds that this proposal is consistent
with that portion of section 515(e) of SMCRA which permits states with
approved programs to allow variances from the requirements to return a
steep slope area to its approximate original contour (AOC). Therefore,
this revision is approved, but only to the extent that it applies to
steep slope areas as defined at WVSCMRA Sec. 22-3-13(d). In addition,
the Director is requiring that West Virginia amend its program to limit
such variances to industrial, commercial, residential, or public
alternative postmining land use, in accordance with section 515(e)(2).
10. Sec. 22-3-15 Inspections
West Virginia proposes to revise paragraph (b)(1)(C) to require
that monitoring equipment be installed, maintained and used consistent
with WVSCMRA Sec. 22-3-9 rather than WVSCMRA Sec. 22-3-10 as currently
stated. The Director has determined that this correction of a cross-
reference will not render the West Virginia program inconsistent with
the requirements of SMCRA or the Federal regulations.
The State also proposes to delete the provision in paragraph (g)
which provides that permittees, employees and inspectors are not to be
held civilly liable for any injury sustained by a person accompanying
an inspector on an inspection. The Director finds that this deletion,
which resolves the concerns raised by OSM as set forth at 30 CFR
948.12(a) and 948.13(e), will not render the West Virginia program
inconsistent with the requirements of SMCRA or the Federal regulations.
The Director is, therefore, removing the disapproval at 30 CFR
948.12(a), and the corresponding set aside at 30 CFR 948.13(e).
Finally, the State is deleting from paragraph (g) the provision
that any person accompanying an inspector on an inspection shall be
responsible for supplying any safety equipment required. There is no
counterpart to this rule in the Federal program, and the Director finds
that the deletion of this provision will not render the West Virginia
program inconsistent with the requirements of SMCRA or the Federal
regulations.
11. Sec. 22-3-17 Notice of Violation
West Virginia proposes to revise paragraph (a) of this section to
make it mandatory to issue a notice of violation whenever any provision
of WVSCMRA, the regulations promulgated pursuant thereto or a permit
condition has not been complied with. In addition, the time set for
initial abatement of a notice of violation is proposed to be changed
from 15 to 30 days, and the maximum time allowed as a reasonable
extension is changed from 75 to 60 days. The Director finds that these
revisions are no less stringent than and are procedurally similar to
section 521(a)(3) of SMCRA.
In paragraph (a), the State also proposes to delete the provision
that exempts cessation orders that are released or expire within 24
hours after issuance from mandatory civil penalty assessment of seven
hundred fifty dollars per day per violation. While there is no direct
Federal counterpart, the Director finds that the deletion of this
provision will not render the State's program inconsistent with the
requirements of SMCRA or the Federal regulations.
The State proposes to revise paragraph (b) to allow the director to
suspend or revoke a permit upon the operator's failure to show cause
why the permit should not be suspended or revoked. In addition, if the
permit is revoked, the proposal states that the commissioner shall
initiate procedures to forfeit the operator's bond in accordance with
rules promulgated by the Director. The Director finds that the
proposals are consistent with the requirements of SMCRA at section
521(a)(4) and the Federal regulations at 30 CFR 843.13.
In addition, West Virginia proposes to recodify paragraph (d)(3) as
new subsection (e) in order to clarify that appeal rights and
procedures apply to all notices, orders and decisions of the
commissioner, not just those relating to civil penalty assessments; and
to recodify paragraph (d)(4) as new subsection (f) to clarify that
temporary relief provisions apply to all enforcement actions and
orders, but not to civil penalty assessments. The Director finds that
the proposed recodification will not render the State's program
inconsistent with the requirements of SMCRA or the Federal regulations,
and satisfies the requirements of 30 CFR 948.16(c) (8) and (9), which
are hereby removed.
West Virginia proposes to revise newly redesignated section (f) to
provide that the filing of a request for an informal conference or
formal hearing will not stay the execution of the order appealed from.
The Director has determined that this proposal is substantively
identical to and, therefore, no less stringent than the corresponding
Federal provision at section 525(a) of SMCRA. Finally, the State
proposes to revise section (f) to provide that where a request for
temporary relief from an order for cessation of operations is filed,
the commissioner shall issue his decision within 5 days of receipt of
the request. The Director finds that this proposal is substantively
identical to and, therefore, no less stringent than the corresponding
Federal provision at section 525(c) of SMCRA.
12. Sec. 22-3-18 Permit Approval
The State proposes to revise paragraph (a) of this section to
require the submission of a complete permit application before a
decision is rendered, and to provide that the applicant has the burden
of establishing that the application is in compliance with the program
requirements. The Director finds that the proposed revisions are
substantively identical to and, therefore, no less stringent than the
corresponding Federal statute at section 510(a) of SMCRA.
The State has amended paragraph (c) to require that permit
applications contain violation information on any surface mining
operation owned or controlled by the applicant, rather than just those
operations located in the state of West Virginia. The Director has
determined that this revision is substantively identical to and,
therefore,
[[Page 6516]]
no less stringent than the Federal law at section 510(c) of SMCRA.
In addition, section (c) has been revised to add that no permit may
be issued upon a finding of a demonstrated pattern of willful
violations of (in addition to West Virginia statute) other State or
Federal programs implementing SMCRA of such a degree as to indicate an
intent not to comply with the State statute or SMCRA. The Director
finds these changes to be substantively identical to and no less
stringent than section 510(c) of SMCRA and satisfies the concerns
raised in 30 CFR 948.12(g) and 948.13(f) which are hereby removed.
Finally, West Virginia is proposing to revise, in section (c), the
conditions under which a permit may be issued after revocation or
forfeiture, to include situations where the violations which resulted
in the revocation or forfeiture have not caused irreparable damage to
the environment. While there is no direct Federal counterpart, the
Director finds that the proposal is not inconsistent with the permit
approval provisions of section 510 of SMCRA.
13. Sec. 22-3-19 Permit Renewal and Revision Requirements
The State proposes to revise paragraph (a)(2) of this section by
deleting the references to incidental boundary revisions, and adding a
requirement that where a renewal application proposes to extend the
operation beyond the original boundaries, the portion of the renewal
application involving the new area is subject to the full permit
application requirements. The State clarified the intent of the
amendment by stating that the term ``full standards'' as used in
WVSCMRA Sec. 22-3-19(a)(2) means that for the area being added to the
permit, the applicant must satisfy all current permitting requirements
and is subject to all inspection and enforcement provisions and all
performance standards. In other words, it would be treated like a new
permit application (Administrative Record No. WV-932). Given this
clarification, the Director finds the revisions to be substantively
identical to and, therefore, no less stringent than section 506(d)(2)
of SMCRA.
In addition paragraph (a)(4) is amended to add a two thousand
dollar filing fee for any permit renewal for an active permit. The
Director finds that this proposal is not inconsistent with the permit
fee provisions in section 507(a) of SMCRA.
Finally, West Virginia proposes to revise section (b)(3) to provide
that where the permittee desires to add new area to a permit, the
original permit may be amended to include the new area, provided the
application for the new area is subject to all the procedures and
requirements applicable to applications for original permits. The
Director finds that the revision is substantively identical to and,
therefore, no less stringent than section 506(d)(2) of SMCRA.
14. Sec. 22-3-22 Designation of Areas Unsuitable for Mining
West Virginia proposes to revise paragraph (b) of this section by
deleting the word commissioner. As revised, the provision gives any
person having an interest which is or may be adversely affected the
right to petition the Director to have the area designated as
unsuitable for mining or to have such designation terminated. The
Director finds the proposal to be substantively identical to and,
therefore, no less stringent than section 522(c) of SMCRA.
15. Sec. 22-3-26 Surface Mining Operations Not Subject to the Act
The State proposes to delete paragraph (b) of this section which
provided an exemption for the extraction of coal by a landowner engaged
in construction. There is no direct Federal counterpart to this
exemption and the Director finds that the proposed deletion will not
render the West Virginia program inconsistent with the requirements of
SMCRA or the Federal regulations.
The exemption for government financed construction at paragraph (c)
is being revised to provide that coal extraction incidental to federal,
state, county, municipal, or other local government financed highway or
other construction is exempt from the requirements of the Act. The
Director finds that this provision is substantively identical to and,
therefore, no less stringent than section 528(2) of SMCRA.
The State also proposes to delete paragraph (d) which provided an
exemption for the extraction of coal affecting two acres or less. The
Director finds this proposal to be consistent with the provisions of
subsection 201(b) of Public Law 100-34 (effective June 6, 1987) which
repealed the two-acre exemption originally set forth at section 528(2)
of SMCRA and, therefore, the deletion of this provision will not render
the State's rules inconsistent with the requirements of SMCRA or the
Federal regulations. The Director is removing required amendment 30 CFR
948.16(c)(7) because with the deletion it is no longer relevant.
16. Sec. 22-3-28 Special Permits for Abandoned Coal Waste Piles
West Virginia proposes to revise paragraph (d) of this section by
deleting the word ``reprocessing'' and adding the word ``removal'' in
order to clarify that the special permit is solely for removal of
existing abandoned coal waste piles. The Director finds that this
revision will not render the State program inconsistent with the
requirements of SMCRA or the Federal regulations. The Director notes
that the implementing rules are located at CSR 38-2-3.14(d) (see
Finding B-9 below).
17. Sec. 22-3-40 National Pollutant Discharge Elimination System
(NPDES)
The State proposes to revise this section to require a filing fee
for an NPDES permit application of $500 and a filing fee for a renewal
application of $100. The Director finds that this proposal is not
inconsistent with the general permit fee provisions of section 507(a)
of SMCRA.
18. Sec. 22B-1-4 through 12 Environmental Boards; General Policy and
Purpose
The State is adding these provisions to the West Virginia program
to establish the requirements under which environmental boards will
operate. The Director finds that the provisions are not inconsistent
with SMCRA section 503 concerning state programs. The Director notes
that West Virginia's administrative hearings and appeals procedures are
the same or similar to those in sections 514 and 525 of SMCRA. The
Director is not approving language at section 22B-1-7(d) concerning
allowing temporary relief where the appellant demonstrates that the
executed decision appealed from will result in the appellant suffering
an ``unjust hardship.'' because the exception is inconsistent with
SMCRA sections 514(d) and 525(c). In addition, the Director is
requiring that West Virginia further amend Sec. 22B-1-7(d) to be
consistent with SMCRA sections 514(d) and 525(c).
Section 7(h) would allow the Surface Mining Board to consider
economic feasibility of treating or controlling discharges from surface
coal mining operations in appeals from decisions of an order, permit,
or official action. In this respect, the provisions are less stringent
than SMCRA section 515(b)(10) and less effective than the Federal
regulations at 30 CFR 816.42, because both require discharges to be
controlled or treated without regard to economic feasibility.
Therefore, the Director is not approving this language
[[Page 6517]]
to the extent that it would allow the Board to decline to order an
operator to treat or control discharges due to economic considerations.
In addition, the Director is requiring that West Virginia further amend
Sec. 22B-1-7(h) to be no less stringent than SMCRA section 515(b)(10)
and no less effective than the Federal regulations at 30 CFR 816.42, by
requiring discharges to be controlled or treated without regard to
economic feasibility.
19. Sec. 22B-3-4 Environmental Quality Board
This new provision establishes the Environmental Quality Board's
rule-making authority. Under WV S.B. 287, the provision authorizes the
promulgation of procedural rules granting site specific variances for
water quality standards for coal remining operations; providing minimum
requirements for procedures for granting variances; prohibits granting
variances without requirement of best available technology and best
professional judgement; prohibits granting variance without
demonstration of potential for improvement; and prohibits granting
variance if degradation will result. The Director finds the provision
is not inconsistent with SMCRA section 503 which provides that State
programs must have the capacity to establish rules and regulations to
carry out the purposes of SMCRA. The provision is also not inconsistent
with section 301(p) of the Federal Water Pollution Control Act (33
U.S.C. 1311) which allows alternate effluent limitations to be
established for coal remining operations. The Director notes that any
such procedural rules that grant variances must be submitted to OSM for
approval prior to their implementation.
20. Sec. 22B-4 Surface Mine Board
The State has renamed the ``Reclamation Board of Review'' the
``Surface Mine Board'' and has established new requirements under which
it operates. However, the amendment still requires that some board
members represent outside interests. Therefore, the Director finds that
these revisions do not materially affect the basis for OSM original
determination of the Board's multiple interest status. Since the Board
continues to represent multiple interests, its members are not
``employees'' within the meaning of section 517(g) of SMCRA and the
Federal regulations at 30 CFR 705.5. Therefore, the Director finds the
provisions of section 22B-4 to be not inconsistent with SMCRA section
503 concerning State programs, section 514 concerning decisions of
regulatory authority and appeals, and 517(g) concerning financial
interests of employees.
B. Proposed Revisions to the West Virginia Surface Mining Reclamation
Regulations
1. CSR Sec. 38-2-1.2 Applicability
West Virginia proposes to delete former paragraph (b) of this
subsection. The Director finds that the deletion satisfies the
disapproval codified at 30 CFR 948.12(h). 30 CFR 948.12(h) is hereby
removed.
West Virginia proposes to revise paragraphs (c) and (d) by
providing for the termination and reassertion of jurisdiction over a
completed surface mining and reclamation operation. The Director finds
that the amendments to paragraphs (c)(2) and (d) are substantively
identical to and no less effective than the Federal regulations at 30
CFR 700.11(d)(1)(ii) and (2), respectively, concerning termination of
jurisdiction. Subsection (c)(1) is less effective than the Federal
counterpart at 700.11(d)(1)(i) to the extent that subsection (c)(1)
does not require compliance with the Federal initial program
regulations at Subchapter B or the West Virginia permanent regulatory
program as a prerequisite to the termination of jurisdiction over an
initial program site. In addition, the Director is requiring that the
State further amend subsection (c)(1) to require compliance with the
Federal initial program regulations at Subchapter B or the West
Virginia permanent regulatory program regulations as a prerequisite to
the termination of jurisdiction over an initial program site.
2. CSR Sec. 38-2-2 Definitions
a. Chemical treatment. The WVDEP proposes to define ``chemical
treatment'' at subsection 2.20. This definition, among other
applications, applies to the bond release provisions at CSR 38-2-
12.2(e). CSR 38-2-12.2(e) prohibits bond release where chemical
treatment is necessary to bring water discharged from or affected by
the operation into compliance with effluent limitations or water
quality standards as set forth in CSR 38-2-14.5(b). In effect, for
example, under the proposed definition, bond would not be released
under Sec. 38-2-12.2(e) if water discharged from or affected by an
operation is being actively treated by chemical reagents (such as
sodium hydroxide or calcium carbonate) to bring a discharge into
compliance. The bond would be released, however, if that same water
were being treated, instead, by passive treatment systems (such as
wetlands or limestone drains) to bring the discharge into compliance.
The Director finds that the blanket exclusion of passive treatment
systems from the definition of chemical treatment would render the West
Virginia program less effective than the Federal regulations at 30 CFR
800.40(c)(3) concerning release of bond. 30 CFR 800.40(c)(3) provides
that no bond shall be fully released until reclamation requirements of
SMCRA are fully met. If treatment is necessary to maintain compliance,
whether it be active or passive treatment, then the hydrologic
protection standards of SMCRA section 515(b)(10) have not been fully
met and bond cannot be released. The withheld bond helps assure that
the required treatment will be continued. The fact that a treatment
system is ``passive,'' and may not require human intervention as
frequently as an ``active'' treatment system, does not diminish the
need for assurance that treatment will be provided as long as is
necessary to maintain compliance. Therefore, the Director is approving
the definition of ``chemical treatment'' except to the extent that it
would allow bond release where passive treatment systems are used to
achieve compliance with applicable effluent limitations as discussed
above. In addition, the Director is requiring that West Virginia
further amend the West Virginia program to clarify that bond may not be
released where passive treatment systems are used to achieve compliance
with applicable effluent limitations. This finding does not mean that
OSM is discouraging the use of mining and reclamation practices and the
use of passive treatment systems that help minimize water pollution. On
the contrary, when such practices and passive systems are designed into
the approved operations and reclamation plans, they become an integral
part of an effective program to minimize the formation of acidic or
toxic drainage. However, when such passive systems are used to treat a
discharge that would otherwise not be in compliance with effluent
discharge limitations, such systems are, in effect, chemical treatment
and bond release should not be granted. Passive treatment systems have
not yet been proven effective for all parameters or on a long-term
basis; their effectiveness appears to decrease over time. See OSM's
directive TSR-10, Use of Wetland Treatment Systems for Coal Mine
Drainage, for further information on this issue.
[[Page 6518]]
b. Impoundment or impounding structure; operator; prospecting; and
sediment control or other water retention structure, sediment control
or other water retention system, sediment pond. The Director finds the
proposed definition of ``impoundment or impounding structure'' at CSR
38-2-2.66 is substantively identical to the Federal definition at 30
CFR 701.5 and is removing the required amendment codified at 30 CFR
948.16(f).
The State is adding the proposed definition of ``operator'' at CSR
38-2-2.81. This definition is substantively identical to the proposed
statutory State definition of ``operator'' at Sec. 22-3-3. See Finding
A-3a above for a complete discussion. The Director finds the proposed
definition of ``operator'' is consistent with the Federal definitions
at section 701 of SMCRA and 30 CFR 701.5.
The Federal counterpart to the definition of ``prospecting,'' is
the Federal definition of ``coal exploration'' at 30 CFR 701.5. The
State and Federal definitions are different in that the Federal
definition includes all data gathering without consideration of whether
or not disturbance occurs. However, the Director finds the proposed
definition of ``prospecting'' at CSR 38-2-2.95, while different,
doesn't render the State program less effective than the Federal
regulations, in light of the fact that CSR 38-2-13.1 contains all the
appropriate requirements for a notice of intent to prospect where no
disturbance is anticipated (see Finding B30 below). The Director is
approving the definition of prospecting, and removing the required
amendment at 30 CFR 948.16(nn). In addition, the Director notes an
apparent inconsistency between the definition of prospecting at CSR 38-
2-2.95, which excludes the gathering of environmental data without
disturbance from the definition of prospecting, and the requirements
for a notice of intent to prospect at CSR 38-2-13, which recognize that
prospecting can include data gathering without disturbance. The State
may want to correct this.
The Director finds the definition of ``sediment control or other
water retention structure, sediment control or other water retention
system, or sediment pond'' at CSR 38-2-108 to be consistent with the
federal definition of ``siltation structure'' at 30 CFR 701.5 and can
be approved, and the required amendment at 30 CFR 948.16(n) is
partially satisfied.
3. CSR Sec. 38-2-3.1 Application Information
New subsection 3.1(o) is added to authorize the grouping of
ownership and control information by permittees who are so related by
the submittal and maintenance of a centralized ownership and control
file. Each file must contain required information at CSR Sec. 38-2-3.1
(a), (c), (d), and (l) and be updated at least quarterly. However, the
file must be complete and accurate during the time that an application
is pending. There is no counterpart to the proposed language. However,
the Director finds that the proposed provision is not inconsistent with
the Federal requirements at 30 CFR 773.15 concerning review of permit
applications and can be approved to the extent that all permit
applicants which maintain centralized ownership and control files are
also required to comply with all of the informational provisions
contained in CSR 38-2-3.1.
4. CSR Sec. 38-2-3.4 Maps
The State proposes to revise paragraph (d), subparagraphs (18),
(22), (23), and (24) to require that the permit application identify
each topsoil and noncoal waste storage area, each explosive storage and
handling facility and the area of land to be affected within the
proposed permit area according to the sequence of mining and
reclamation. This revision is intended to satisfy the requirements of
30 CFR 948.16(t). Paragraph (d)(23) concerning explosive storage
facilities has also been amended to read as follows: ``The location of
any explosive storage and handling facility; which will remain in place
for an extended period of time during the life of the operation.'' The
Director finds that the amendments are substantively identical to and
no less effective than the requirements of 30 CFR 780.14(b), and that
30 CFR 948.16(t) can be removed.
5. CSR Sec. 38-2-3.6 Operation Plan
West Virginia proposes to revise paragraph (k) of this subsection
to require the submission of a fugitive dust control plan. This
revision is intended to satisfy the requirements of 30 CFR 948.16(s).
The Director finds the amendment to be substantively identical to and
no less effective than 30 CFR 780.15(a)(2) concerning a plan for
fugitive dust control practices, and that 30 CFR 948.16(s) is satisfied
and can be removed.
6. CSR Sec. 38-2-3.7 Excess Spoil
The State proposes to delete the provision in paragraph (a) which
gives the Director authority to approve alternative design requirements
for excess spoil fills. This deletion satisfies the deficiency noted at
30 CFR 948.15(k)(3) and the requirement at 948.16(i) which can be
removed.
7. CSR 38-2-3.8 New and Existing Structures and Support Facilities
Subsection 3.8(a) is amended to require that each permit
application contain a description, plans, and drawings for each support
facility to be constructed, used or maintained within the proposed
permit area. The Director finds the proposed language to be
substantively identical to and no less effective than 30 CFR 780.38
concerning support facilities.
Subsection (d) is amended by adding a provision that will provide
for the permitting and bonding of a facility or structure that is to be
shared by two or more separately permitted mining operations. The
Director finds that the provision is substantively identical to and,
therefore, no less effective than the Federal provision concerning
shared facilities at 30 CFR 778.22 and can be approved.
8. CSR Sec. 38-2-3.12 Subsidence Control Plan
The State proposes to revise paragraph (a), subparagraph (5) to
require that measures be taken to mitigate or remedy material damage to
structures due to subsidence in accordance with subsection 16.2(c) and
(d) in addition to the existing requirement of meeting 16.2(a)
concerning surface owner protection. While there is no direct Federal
counterpart to this proposal, the Director finds the proposed revisions
to be consistent with the Federal requirements at 30 CFR 784.20(b)
concerning subsidence control plans. The State also proposes to delete
the phrase in paragraph (d), subparagraph (2) which does not require an
identification of measures to be taken to protect structures when the
applicant demonstrates the right to subside without liability. This
revision is consistent with the 1992 Energy Policy Act, which added
section 720 to SMCRA and requires repair or compensation by the
operator for material damage to structures caused by subsidence
regardless of any ``right to subside.''
9. CSR Sec. 38-2-3.14 Removal of Abandoned Coal Waste Piles
The State proposes to revise paragraph (a) of this subsection which
allows the State to issue a special permit solely for the removal of
existing abandoned coal processing waste piles.
[[Page 6519]]
The added language requires that if the average quality of the refuse
material can be classified as coal using the BTU standard in ASTM D
388-88, a permit application which meets all applicable requirements of
Sec. 38-2-3 shall be required. This revision is intended to satisfy the
deficiency of 30 CFR 948.15(k)(4). The Director finds the proposed
language is consistent with the Federal requirements at 30 CFR 773.11
concerning requirements to obtain permits and can be approved, and that
30 CFR 948.15(k)(4) is satisfied.
10. CSR Sec. 38-3.15 Approved Person
West Virginia proposes to revise its approved person requirements
in this subsection. The State is proposing to allow approved persons to
certify associated facilities. It also proposes to require the
submission of a registration or license in addition to a resume.
Finally, it proposes to delete the provisions which allow the director
to require a person to requalify for ``approved person'' status, and to
suspend or withdraw ``approved person'' status. Although there are no
Federal counterparts, the Director finds the proposed changes are not
inconsistent with SMCRA and the Federal regulations concerning
requirements for permits and permit processing, since the State has
retained the provision, at subsection 3.15(a), which states that
``approved person'' may only be designated by the regulatory authority
where the WVSCMRA does not otherwise prohibit such designations.
11. CSR Sec. 38-2-3.16 Fish and Wildlife Resources
The State proposes to revise paragraph (a) to this subsection
deleting the word ``approval''. Under the revised provision, the
regulatory authority will provide only for coordination of review of
permits where such coordination is appropriate pursuant to the Fish and
Wildlife Coordination Act (16 U.S.C. 661 et seq.). The Director finds
the proposed deletion does not render the West Virginia program less
effective than 30 CFR 780.16 concerning fish and wildlife information.
12. CSR Sec. 38-2-3.25 Transfer, Assignment or Sale of Permit Rights
The State proposes to revise paragraph (a), subparagraph (4) of
this subsection to provide that the approval of a transfer application
may be granted in advance of the close of the public comment period,
provided that the Director can immediately withdraw approval if
information is made available as a result of public comment that would
preclude approval. There is no direct Federal counterpart to the
proposed language. The Federal regulations at 30 CFR 774.17(b) provide
that an applicant for approval of the transfer, assignment, or sale of
permit rights shall (at (b)(2)) advertise the filing of the application
and identify where written comments may be sent. The State counterpart
to the notice requirements of 30 CFR 774.17(b)(2) is CSR 38-2-
3.25(a)(3). While the Federal requirements at 30 CFR 774.17(b)(2)
require public notice, they do not prohibit application approval prior
to the end of the public comment period. The State proposal provides
the regulatory authority with reasonable flexibility to promptly
conclude approvals of transfer, assignment or sale of permit rights
while also assuring that public comment is considered and in those
cases where public comment presented information that would preclude
approval, the State can immediately withdraw approval. The Director
finds that the proposed language is not inconsistent with the intent of
30 CFR 774.17 concerning transfer, assignment, or sale of permit rights
and can be approved. See Finding A6, above for the Director's approval
of the statutory provision at Sec. 22-3-8 concerning permit transfers.
Paragraph (a)(4) is also amended to add reference to subsection
``3.32(d)(7)'' (formerly subsection 3.31) which requires a finding by
the State that the applicant has paid all reclamation fees from
previous and existing operations. The Federal regulations at 30 CFR
774.17(d)(1) provide that an application for a transfer, assignment or
sale may be granted where the applicant is eligible to receive a permit
in accordance with 30 CFR 773.15(b) and (c). The State counterpart to
30 CFR 774.17(d)(1) is contained at CSR 38-2-3.25(a)(4).
This paragraph requires that applicants be eligible for permits in
accordance with CSR 38-2-3.32(c), which is the State counterpart to 30
CFR 773.15(b). However, subsection 3.25(a)(4), as proposed, adds a
cross-reference to only one portion of the State's counterpart to 30
CFR 773.15(c), namely, subsection 3.32(d)(7), pertaining to payment of
reclamation fees. The State has argued, and the Director agrees, that
the other findings contained in subsection 3.32(d) (30 CFR 773.15(c))
need not be made during the review of an application for transfer,
assignment or sale since these findings relate to the issuance of the
original permit, and should, therefore, remain valid. However, the
finding at subsection 3.32(d)(7), pertaining to payment of reclamation
fees, must be made, since it relates specifically to the applicant for
transfer, assignment or sale. Therefore, the Director finds that the
additional reference to subsection 3.32(d)(7) renders the State's
program no less effective than the Federal regulations at 30 CFR
774.17(d)(1) and can be approved.
The State also proposes to revise this subsection by revising
paragraph (c) and by adding paragraphs (d) and (e). These requirements
provide that permit assignments (operator reassignments) be advertised,
contain the ownership and control information required by Subsection
3.1 and subcontractors be subject to the eligibility requirements of
Subsection 3.32. This revision is intended to satisfy the requirements
of 30 CFR 948.16(v). Although there is no direct Federal counterpart,
the Director finds the added language is no less effective than 30 CFR
774.17, and that 30 CFR 948.16(v) is satisfied can be removed.
13. CSR 38-2-3.26 Ownership and Control Changes
The language of this subsection is new and governs the reporting of
name changes, replacements, and additions to the ownership and control
information for any surface mining operation or permittee. While there
is no direct Federal counterpart to the proposed language, the Director
finds that the proposed language is not inconsistent with 30 CFR 778.13
concerning identification of interests and 778.14 concerning violation
information and can be approved.
14. CSR 38-2-3.27(a) Permit Renewals and Permit Extensions
The WVDEP proposes to add a provision which will allow the Director
to waive the requirements for permit renewal if the permittee certifies
in writing that all coal extraction is completed, that all backfilling
and regrading will be completed within 60 days prior to the expiration
date of the permit and that an application for Phase I bond release
will be filed prior to the expiration date of the permit. The proposal
also provides that failure to complete backfilling and grading within
60 days prior to the expiration date of the permit will nullify the
waiver. Finally, operations granted inactive status are also subject to
permit renewal requirements. The Director finds this provision to be
consistent with and no less effective than 30 CFR 773.11 which provides
that a permittee need not renew the permit if no surface coal mining
operations will be conducted under the permit and solely reclamation
activities remain to be done.
[[Page 6520]]
15. CSR Sec. 38-2-3.28 Permit Revisions
The State proposes to revise paragraph (b) in this subsection to
require that each application for a permit revision be reviewed by the
director to determine if an updated probable hydrologic consequences
determination (PHC) or cumulative hydrologic impact assessment (CHIA)
is needed. The Director finds the proposed revisions are substantively
identical to and, therefore, no less effective than the Federal
regulations at 30 CFR 780.21(f)(4) concerning PHC determinations.
The State also proposes to revise paragraph (c) to give the
Director the authority to require reasonable revision of a permit at
any time and to delete the provision which only required a revision to
assure adequate protection of the environment or public health and
safety. The revisions also require notice to the permittee of the need
for revisions and reasonable time for compliance. The Director finds
that the proposed revisions are similar to and no less effective than
the Federal regulations at 30 CFR 774.11(b) concerning review of
permits. These revisions satisfy the deficiency at 30 CFR 948.15(k)(5)
and the requirements of 948.16 (j) and (w). 30 CFR 948.16 (j) and (w)
are hereby removed.
16. CSR Sec. 38-2-3.29 Incidental Boundary Revisions (IBRs)
West Virginia proposes to revise its incidental boundary revision
(IBR) requirements in this subsection. The revisions in paragraph (a)
provide that IBRs will be limited to minor shifts or extensions into
non-coal areas or areas where coal extraction is incidental to or of
only secondary consideration of the intended purpose of the IBR. IBRs
will not be granted to abate a violation for encroachment beyond the
original permit boundaries, unless an equal amount of area is deleted
from the permitted area. Paragraph (b) is revised to allow IBRs for
underground mines to be larger than 50 acres when an applicant
demonstrates the need for a larger IBR. Also, applications for an IBR
must be accompanied by an adequate bond, a map showing the IBR area and
a reclamation plan for the area of the IBR. The State proposes to
delete subparagraph (6) which provides that all provisions of the IBR
which differ from the original permit meet the requirements of the Act
and regulations, except as provided in this subsection. Finally, the
State proposes to add paragraph (e) which gives the Director the
authority to require the publication of an advertisement that provides
for a ten-day public comment period for an IBR application.
There is no definition for ``incidental boundary revisions''
contained in either SMCRA or the Federal regulations. However, the
Director notes that under the proposed language IBR's will not be
authorized for surface or underground operations in cases where
additional coal removal is the primary purpose of the revision.
Therefore, the Director finds the proposed amendments to be consistent
with the principal intent of sections 511(a)(3) of SMCRA and 30 CFR
774.13(d) which pertain to incidental boundary revisions.
17. CSR Sec. 38-2-3.30 Variances
The State proposes to revise its variance requirements at
paragraphs (b), (c), (d) and (e) of this subsection. These paragraphs
set forth requirements for granting variances from contemporaneous
reclamation. These revisions are intended to satisfy the requirements
at 30 CFR 948.16(x). The Director finds the proposed language is
substantively identical to and no less effective than 30 CFR 785.18
concerning variances for delay in contemporaneous reclamation
requirements in combined surface and underground mining activities. The
Director also finds the revisions do satisfy the requirements at 30 CFR
948.16(x), which is hereby removed.
18. CSR 38-2-3.31(a) Exemption for Government Financed Highway or
Other Construction
The WVDEP proposes to revise its rules to allow exemptions from the
requirements of the WVSCMRA for county, municipal or other local
government-financed highway or other construction. The Director finds
this amendment to be consistent with and no less effective than the
Federal definitions of ``government financing agency'' and
``government-financed construction'' at 30 CFR 707.5.
19. CSR Sec. 38-2-3.32 Permit Findings
The State proposes to delete the provision in this subsection which
requires the WVDEP to use and update ownership and control information
from surrounding States in the issuance of permits. While there is no
direct counterpart to the language that is being deleted, the Director
finds the deletion does not render the West Virginia program less
effective than the requirements of 30 CFR 773.15(b) concerning review
of violations. The West Virginia program continues to provide for the
review of outstanding violations at CSR Sec. 38-2-3.32 (b) and (c).
20. CSR Sec. 38-2-3.33 Permit Conditions
The State proposes to delete subsection (i) concerning an annual
submittal of information required at Sec. 38-2-3.1. There is no direct
Federal counterpart to the deleted language. The Director finds the
proposed deletion does not render the West Virginia program less
effective than 30 CFR 773.17 concerning permit conditions. The West
Virginia program continues to retain at CSR 38-2-3.33(h) a counterpart
to 30 CFR 773.17(i) concerning notification requirements following
cessation orders.
21. CSR 38-2-3.34 Improvidently Issued Permits
The WVDEP proposes to amend paragraph (b) by inserting the phrase
``in paragraph (b) of subsection 3.32 of this section.'' This amendment
identifies where in the West Virginia program the violations review
criteria are located. The Director finds this change to be consistent
with and no less effective than 30 CFR 773.20(b)(1)(i).
Subparagraph (b)(3) has been amended by deleting the existing
language and adding in its place language that is substantively
identical to and no less effective than 30 CFR 773.20(b)(1)(iii).
New subparagraph (b)(4) has been added to provide that a permit
shall be determined to have been improvidently issued when the
permittee had a permit revoked or bond forfeited and has not been
reinstated, or the permittee was linked to a permit revocation or bond
forfeiture through ownership or control, at the time the permit was
issued and an ownership or control link between the permittee and the
person whose permit was revoked or whose bond was forfeited still
exists, or when the link was severed the permittee continues to be
responsible for the permit revocation or bond forfeiture. Although
there is no direct Federal counterpart, the Director finds the added
language to be consistent with the definition of ``violation notice''
at 30 CFR 773.5, which definition includes notices of bond forfeiture,
with 30 CFR 773.20 concerning improvidently issued permits.
Paragraph (c) is amended to add ``permit revocation or a bond
forfeiture'' to the list of circumstances that can cause a finding that
a permit was improvidently issued. While there is no direct Federal
counterpart, the Director finds the added language to be consistent
with the definition of ``violation notice'' at 30 CFR 773.5 and with 30
CFR 773.20(a)(1).
[[Page 6521]]
New subparagraph (d)(1)(E) is added to the list of circumstances
that could prevent an automatic suspension or rescission of a permit.
Under subparagraph (d)(1)(E), a permit would not be automatically
suspended or revoked if the permittee or other person responsible for
the permit revocation or bond forfeiture has been reinstated, pursuant
to section 18(c) of the WVSCMRA. While there is no direct Federal
counterpart, the Director finds the added language to be consistent
with 30 CFR 773.21(a) concerning automatic suspension or rescission of
permits.
West Virginia proposes to amend paragraph (f) of this subsection to
change the cross reference in that paragraph to subsection ``(e),''
Section 17 of WVSCMRA. The Director finds the change does not render
the West Virginia program less effective than 30 CFR 773.20(c)(2)
concerning appeals of suspensions or rescissions of permits determined
to have been improvidently issued.
Paragraph (g) is being revised to clarify that the term ``permit
issuance'' also includes permit transfers, assignments, or sales of
permit rights, as well as revisions for ownership and control purposes.
While there is no direct Federal counterpart, the Director finds the
added language is not inconsistent with 30 CFR 773.15 concerning review
of permit applications.
22. CSR Sec. 38-2-4 Haulageways, Roads, and Access Roads
West Virginia proposes to revise all of its haulroad regulations at
Section 4. The new haulroad and access road requirements provide for a
road classification system, plans and specifications, stream crossings,
standards for infrequently used roads, construction standards, drainage
design standards, performance standards, maintenance standards,
reclamation standards, primary road standards and certification. In
addition, Section 4 contains design, construction, maintenance and
abandonment requirements for other transportation facilities.
a. Sec. 38-2-4.1 (a) Road Classification System. The WVDEP
proposes to include haulageways and access roads under its road
classification system, and is defining ``primary road.'' The Director
finds these amendments to be substantively identical to and no less
effective than 30 CFR 816.150(a) concerning road classification system,
and 30 CFR 816.150(a)(2) concerning the definition of ``primary road.''
b. Sec. 38-2-4.2 Plans and Specifications. These amendments set for
the requirements for each road to be constructed, used, or maintained
within the permit area. The provisions specify that road designs are to
be certified as meeting the requirements of the WVSCMRA and
implementing rules. The WVDEP is also reorganizing its rules by
deleting the title ``4.3 Stream Crossings'' and designating paragraph
(a) of the deleted subsection 4.3 as paragraph (b) of subsection 4.2.
This reorganization is intended to clarify that CSR 38-2-4.2(b) applies
to all stream crossings, and is not limited to only roads in stream
channels. Under the proposed revisions, CSR 38-2-4.2(b) applies to all
roads whether they are within or crossing a stream. The Director finds
the proposed provisions to be consistent with 30 CFR 780.37(a)
concerning road systems; plans and drawings to the extent that the
provisions pertain to all roads, whether they are within or crossing a
stream. The Director notes that 30 CFR 780.37(a) cross references the
Federal regulations at 30 CFR 816.150(d)(1) (concerning the prohibition
against locating a road in the channel of a stream), and this in turn
cross-references other Federal hydrologic protection rules. The State
language does not contain a similar cross references in CSR 38-2-
4.2(b). The Director believes, however, that a lack of such cross
references does not render the State program less effective. The State
hydrologic protection standards apply regardless of whether or not they
are cross-referenced.
c. Sec. 38-2-4.3 Existing Haulageways or Access Roads. This
subsection provides that where it can be demonstrated that
reconstruction of existing haulageways or access roads to meet the
required design, construction, and environmental protection standards
of the West Virginia program would result in greater environmental
harm, such reconstruction may be exempt from the standards at
subsection 4.5(a)(1) and (2), and subsection 4.6(a)(2)(A) and (b),
where the sediment control requirements of CSR 38-2-5 can otherwise be
met. The provisions in the State program contain grade requirements for
roads. Since the Federal regulations contain no specific road grade
requirements, for roads. Since the Federal regulations contain no
specific road grade requirement but merely require, at 30 CFR
816.150(c), that designs include appropriate grade limits, the Director
finds these provisions to be consistent with and no less effective than
30 CFR 780.37(a) and 816.150(c) concerning plans and drawings.
d. Sec. 38-2-4.4 Infrequently Used Access Roads. This provision
requires that infrequently used access roads be designed to ensure
environmental protection appropriate for their planned duration and
use, and be constructed in accordance with current prudent engineering
practices and any necessary design criteria established by the
Director. A statement has been added to clarify that prospecting roads
are to be designed, constructed, maintained, and reclaimed in
accordance with subsection 13.6 which governs prospecting roads. Cross
references have also been revised. The Director finds the proposed
amendments to be consistent with and no less effective than 30 CFR
816.150(c) concerning design and construction limits and establishments
of design criteria.
Subsection 4.4 is also revised to provide that roads constructed
for and used only to provide for infrequent service to facilities used
in support of mining and reclamation operations may be exempt from all
haulroad requirements in CSR 38-2-4, except for subsections 4.2, 4.3,
4.5(a)(1), 4.5(b), 4.6(a), 4.7, and 4.8. These ``infrequently used
access roads'' include all roads defined as ``ancillary roads'' under
30 CFR 816.150(a)(3). Under the Federal regulations, ancillary roads
must comply with all requirements contained in 30 CFR 816.150. To be
consistent with the Federal regulations, the State program must require
that all ``infrequently used access roads'' comply with the State
program counterparts to 30 CFR 816.150. However, subsection 4.4, as
proposed, would exempt infrequently used access roads from the
requirements of subsection 4.9, which is the State program counterpart
30 CFR 816.150(f) pertaining to reclamation of road
FR Doc. 96-3413 West Virginia Regulatory Program
s. Therefore, the
Director is not approving subsection 4.4 to the extent that it exempts
infrequently used access roads from the requirements of subsection 4.9.
The Director is also requiring the State to amend its program to
require that all infrequently used access roads comply with CSR 38-2-
4.9.
e. Sec. 38-2-4.5 Construction. This provision sets forth the grade
limits for the construction of haulageways or access roads and the
tolerance standards for grade measurements and linear measurements.
While there are no direct Federal counterparts, the Director finds
these amendments to be consistent with 30 CFR 816.150(c), which
requires that designs for roads contain appropriate grade limits.
[[Page 6522]]
f. Sec. 38-2-4.6 Drainage Design. These amendments set forth the
standards for all drainage designs of haulageways or access roads. The
amendments also specify that culverts shall be installed and maintained
to sustain the vertical soil pressure, the passive resistance of the
foundation and the weight of the vehicles using the road. While there
are no Federal counterparts which apply to all roads, the Director
finds these amendments to be consistent with 30 CFR 816.150(c), which
requires that road designs contain plans for surface drainage control,
and 30 CFR 816.151(d) concerning drainage control for primary roads.
g. Sec. 38-2-4.7 Performance Standards. These amendments are
intended to set forth the performance standards for the location,
design, construction, reconstruction, use, maintenance, and reclamation
of roads. The Director finds the proposed amendments to be no less
effective than 30 CFR 816.150(b) concerning performance standards for
roads. The proposed changes governing sediment storage volume and
detention time as applied to drainage from roads are intended to
clarify that the regulatory authority may approve lesser storage values
than 0.125 acre/feet if compliance with the applicable effluent limits
and the general performance standards for roads can be achieved. OSM
conducted a study of West Virginia's 0.125 acre/feet standard and
determined that its application in West Virginia does not render the
State program less effective than the Federal regulations at 30 CFR
816.46(c)(1)(iii) (Administrative Record Number WV-890). The study did
not address the adequacy of lesser storage values. However, so long as
the end result is that applicable effluent limits are not exceeded,
West Virginia may allow the use of lesser storage values. Therefore,
the Director finds that the proposed language, which continues to
require compliance with the applicable effluent limitations and
performances standards for roads and providing the regulatory authority
with reasonable flexibility in implementing the West Virginia program,
does not render the West Virginia program less effective than the
Federal regulations at 30 CFR 816.46(c)(1)(iii) concerning siltation
structures.
h. Sec. 38-2-4.8 Maintenance. These amendments provide that roads
shall be maintained to meet the West Virginia performance standards for
roads and any additional standards specified by the State. Roads that
are damaged by catastrophic events shall be repaired as soon as is
practicable. The Director finds these amendments to be substantively
identical to and no less effective than 30 CFR 816.150(e) concerning
maintenance.
i. Sec. 38-2-4.9 Reclamation. These amendments set forth the
performance standards for roads that are not to be retained under the
approved postmining land use. With the exception of subsection 4.9(e),
the Director finds the amendments to be substantively identical to and,
therefore, no less effective than 30 CFR 816.150(f)(1-4), and (6),
concerning reclamation of roads. Subsection 4.9(e) contains drainage
and culvert requirements for road abandonment. While there are no
direct Federal counterparts, the Director finds these requirements to
be consistent with and, therefore, no less effective than the
requirement to protect the natural drainage contained in 30 CFR
816.150(f)(5).
j. Sec. 38-2-4.10 Primary Roads. These amendments set forth the
performance standards for primary roads. The Director finds these
amendments to be substantively identical to and, therefore, no less
effective than 30 CFR 816.151 concerning primary roads.
k. Sec. 38-2-4.11. Support Facilities and Transportation
Facilities. These amendments set forth the requirements for support and
transportation facilities such as railroad loops, spurs, sidings,
surface conveyor systems, chutes, and aerial tramways ``which are under
the control of the permittee.'' The Director is concerned that the
phrase ``which are under the control of the permittee'' could be
interpreted to exclude from these requirements certain support
facilities which are within the definition of ``surface coal mining
operations'' at 30 CFR 700.5. Therefore, the Director is approving this
amendment only to the extent that it does not exclude facilities that
are included within the definition of ``surface coal mining
operations'' at 30 CFR 700.5.
l. Sec. 38-2-4.12. Certification. This provision requires that,
upon completion of construction, all primary roads for which design
criteria were approved as part of the permit shall be certified. Where
the certification statement for a primary road indicates a change from
design standards or construction requirements in the approved permit,
such changes must be documented in as-built plans and submitted as a
permit revision. The Director finds the proposed language to be
consistent with and no less effective than 30 CFR 816.151(a) concerning
certification, and 30 CFR 774.13 concerning permit revisions.
This subsection also requires that all roads used for
transportation of coal or spoil, and which are constructed outside the
permitted coal extraction area shall be certified before they are used
for such transportation. Finally, any roads within the coal extraction
area which are constructed concurrently with progress of mining
activities shall be certified in increments of 1,000 linear feet as
measured from the active pit. While there are no Federal counterparts
to these two proposals, the Director finds that they are consistent
with 30 CFR 780.37(b) and 816.151(a).
23. CSR Sec. 38-2-5.2 Intermitteent or Perennial Streams
The State proposes to revise this subsection to provide that before
the director can approve any mining within 100 feet of an intermittent
or perennial stream, the director must find that such activities will
not cause or contribute to the violation of applicable State or Federal
water quality standards. The Director finds that the amendment
satisfies 30 CFR 948.16(aa) and can be approved. 30 CFR 948.16(aa) is
hereby removed.
24. CSR Sec. 38-2-5.4 Sediment Control
West Virginia proposes to revise paragraph (a) of this subsection
to make its sediment control requirements applicable to other water
retention structures, and it is deleting all references to on-bench
sediment control systems. The State has also deleted the reference to
the design, construction and maintenance criteria in the Technical
Handbook. The Director finds that this revision satisfies the
requirements of 30 CFR 948.15(k)(6) and 30 CFR 948.16(n) and can be
approved. The required amendment at 30 CFR 948.16(n) is hereby removed.
Paragraph (b) is revised to make its design and construction
requirements applicable to sediment control or other water retention
structures used in association with the mining operation. The State has
deleted references to on-bench sediment control structures. The
Director finds this deletion is consistent with the deletion at
paragraph 5.4(a), and does not render the West Virginia program less
effective than the Federal regulations at 30 CFR 780.25, 816,45, 816.46
and 816.49.
Subparagraph (b)(12) is revised to require that foundation
investigations and any necessary laboratory testing be performed to
determine foundation stability design for impoundments meeting the size
or other criteria of 30 CFR 77.216(a). This revision satisfies the
requirement at 30 CFR 948.16(pp) and can be approved, and 30 CFR
948.16(pp) can be removed.
[[Page 6523]]
Subparagraph (b)(13) has been revised to require that all sediment
control and other water retention structures be certified in accordance
with the design requirements of the Act and regulations and other
design criteria established by the Director. The Director finds the
proposed language to be consistent with and no less effective than 30
CFR 780.25 concerning reclamation plans for siltation structures,
impoundments, banks, dams, and embankments.
West Virginia proposes to revise paragraph (c) to make the
requirements of that paragraph applicable to all embankment type
sediment control or other water retention structures, including slurry
impoundments. The Director finds that this revision satisfies the
requirement at 30 CFR 948.16(qq) and can be approved. 30 CFR 948.16(qq)
is hereby removed.
Subparagraph (c)(3) is revised to require the installation of
cutoff trenches during embankment construction to ensure stability. The
Director finds that this revision satisfies the requirement at 30 CFR
948.16(rr) and can be approved. 30 CFR 948.16(rr) is hereby removed.
Subparagraph (c)(4) is revised to require prompt notification of
the State if any examination or inspection of an impoundment discloses
that a hazard exists. The Director finds that this revision satisfies
the requirement at 30 CFR 948.16(ss) and can be approved. 30 CFR
948.16(ss) is hereby removed.
Subparagraph (c)(6) is revised to require that the design plan for
an impoundment which meets the size criteria of 30 CFR 77.216(a)
include a stability analysis which includes but is not limited to
strength parameters, pore pressures, and long-term seepage conditions.
Subparagraph (c)(6) also provides that the design plan will include a
description of each engineering design assumption and calculation.
These revisions satisfy the requirements at 30 CFR 948.16(ccc) and can
be approved, and 948.16(ccc) can be removed.
Paragraph (d) has been revised to require that where sediment
control or other water retention structures are constructed in sequence
with the advance of the mining to allow for on-bench construction, such
systems shall be constructed and certified in sections of 1,000 linear
feet or less as measured from the active pit. While there is no direct
Federal counterpart to the proposed language, the Director finds that
the language is not inconsistent with 30 CFR 816.49(a)(3) concerning
design certification.
The State proposes to revise paragraph (e) to require the
inspection of sediment control or other water retention structures. The
State also proposes to require that the professional engineer, licensed
land surveyor, or other specialist involved in the inspection of
impoundments be experienced in the construction of impoundments. The
Director finds that this revision satisfies the requirement at 30 CFR
948.16(uu) and can be approved, and 948.16(uu) can be removed.
West Virginia proposes to revise paragraph (h) to make its
abandonment requirements applicable to sediment control and other water
retention structures. The Director finds that these changes do not
render the State program less effective than the Federal regulations,
and are consistent with the required amendment at 30 CFR 948.16(n) and
can be approved.
25. CSR 38-2-5.5 Permanent Impoundments
The WVDEP proposes to clarify that sediment or water retention or
impounding structures left in place after final bond release must be
authorized by the Director as part of the permit application or a
revision to a permit. The Director finds this revision partially
satisfies 30 CFR 948.16(vv) (the first sentence) and can be approved.
The Director is making this finding with the assumption that the
apparent typographical error in the first sentence of subsection 5.5
(``review'' should be ``revision'') will be corrected. The State has
also proposed to amend subsection 5.5(c) to require the landowner to
provide for sound future maintenance of a permanent impoundment. The
Director finds that this provision satisfies the requirement codified
in the second sentence of 30 CFR 948.16(vv). The proposed provisions
are approved, and 30 CFR 948.16(vv) is hereby removed.
26. CSR 38-2-6 Blasting
a. Sec. 38-2-6.3(b) Public Notice of Blasting Operation. This
subsection is amended to require that all local governments and
residents or owners of dwellings or structures located within one-half
mile of the blast site be notified of surface blasting activities
incident to an underground mine. The State also proposes to require
that the blasting notification be announced weekly, but in no case less
than 24 hours before the blasting will occur. The Director finds the
amended language to be substantively identical to and no less effective
than 30 CFR 817.64(a).
b. Sec. 38-2-6.6 Blasting Control for Other Structures. The State
proposes to revise Subsection 6.6 to require that all non-protected
structures in the vicinity of the blasting area be protected from
damage by the establishment of a maximum allowable limit on ground
vibration specified by the operator in the blasting plan and approved
by the Director. The Director finds that this revision satisfies the
requirement at 30 CFR 948.16(cc) and can be approved. 30 CFR 948.16(cc)
is hereby removed.
c. Sec. 38-2-6.8 Preblast Survey. Subparagraph 6.8(a) is amended
to delete language that excludes a certain portions of the permit area
when determining the applicability of preblast survey notification
requirements. The Director finds this revision satisfies the
requirements of 30 CFR 948.15(k)(7) and 948.16(l) and can be approved.
30 CFR 948.16(l) is hereby removed.
27. Sec. CSR 38-2-8.1 Protection of Fish and Wildlife and Related
Value
West Virginia proposes to add an exception to paragraphs (e)(1) and
(e)(3) of Subsection 8.1 to require the use of the best technology
currently available to protect raptors and large mammals, except where
the Director determines that such requirements are unnecessary. The
Director finds the added language to be substantively identical to and
no less effective than 30 CFR 816.97(e)(1) and (3).
28. CSR Sec. 38-2-9 Revegetation
The State proposes to revise paragraphs (g) and (h) of Subsection
9.3 to require that, in determining success on areas to be developed
for forestland and wildlife resources or commercial woodlands, the
trees and shrubs counted be healthy and in place for not less than two
growing seasons. This revision is intended to satisfy OSM's Regulatory
Reform III letter of March 6, 1990. The Director finds these amendments
to be substantively identical to and no less effective than 30 CFR
816.116(b)(3)(ii) concerning revegetation, standards for success.
29. CSR Sec. 38-2-11.1 Insurance
The State proposes to revise paragraph (a) of this subsection to
clarify that liability insurance must be maintained throughout the life
of the permit or any renewal thereof. The State also proposes to revise
this paragraph to provide that there are no exclusions for blasting
from the property damage coverage. The Director finds the proposed
amendments are substantively identical to and no less effective than 30
CFR 800.60 concerning terms and conditions for liability insurance.
[[Page 6524]]
30. CSR Sec. 38-2-13 Notice of Intent to Prospect
Subsection 13.1 is added to this section. Under this subsection,
where prospecting operations are proposed without surface disturbance
and without appreciable impacts on land, air, water, or other
environmental resources, the Director may waive the requirements of
this section and the bonding requirements of Sec. 22A-3-7 of the
WVSCMRA. To qualify, at least 15 days prior to commencement of any
prospecting activities, the operator must file with the Director a
written notice of intent to prospect. The notice must include a
description of the activities to be conducted and a USGS topographic
map showing the area to be prospected. The Director may approve the
notice of intent subject to the findings required by paragraph (b) of
Subsection 13.4. CSR 38-2-13.4(b) provides that the regulatory
authority, to approve an application, must find, in writing, that the
applicant has demonstrated that the prospecting operation will be
conducted in accordance with section CSR 38-2-13, and other applicable
provisions of the State regulations and statute, and the application.
This revision is intended to satisfy in part the requirements of 30 CFR
948.15(l)(2). The Director finds that the proposed language is no less
effective than 30 CFR 772.11 concerning notice requirements for
exploration removing 250 tons of coal or less. The Director notes that
where no surface disturbance or other appreciable impacts caused by
coal exploration are anticipated, and no lands unsuitable are involved,
applicants will not have some of the information required by 30 CFR
772.11, such as information related to drilling and trenching located
at 772.11(b)(3) and reclamation located at 772.11(b)(5).
Subsection 38-2-13.5(b) concerning performance standards for
prospecting roads is deleted and new requirements for prospecting roads
are established at CSR 38-2.13.6. The new provisions provide the
environmental standards relevant to the location, design, construction
or reconstruction, use, maintenance, and reclamation of prospecting
roads. The Director finds the proposed standards are substantively
identical to and no less effective than 30 CFR 816.150 concerning
general performance standards for roads.
Subsection 13.10 is revised to provide that, notwithstanding any
other provision of this section, any person who proposes to conduct
prospecting operations on lands which have been designated as
unsuitable for surface mining pursuant to Sec. 22A-3-22 of the WVSCMRA
shall file a notice of intent in accordance with Subsection 13.3.
Approval of the notice of intent shall be in accordance with Subsection
13.4. The Director finds the amendment to be consistent with and no
less effective than 30 CFR 772.11(a).
31. CSR Sec. 38-2-14.5 Hydrologic Balance
West Virginia proposes to revise paragraph (b) of this subsection
to require that monitoring frequency and effluent limitations be
governed by the standards set forth in a National Pollutant Discharge
Elimination System (NPDES) permit issued pursuant to Sec. 20-5-1 et
seq. of the West Virginia Code, the Federal Water Pollution Control Act
as amended, 33 U.S.C. 1251 et seq. and the rules and regulations
promulgated thereunder. The Director finds these amendments to be
consistent with and no less effective than 30 CFR 816.42 concerning
water quality standards and effluent limitations.
Paragraph (c) has been revised to require that any water discharged
from a permit area and treated complies with the requirements of
paragraph (b) of this subsection, pertaining to NPDES permits. The
Director finds this amendment is consistent with and no less effective
than 30 CFR 816.42 concerning water quality standards and effluent
limitations.
Paragraph (h) has been revised to provide that a waiver of water
supply replacement rights granted by a landowner can apply only to
underground mining, provided that it does not exempt any operator from
the responsibility of maintaining water quality. Under section
720(a)(2) of SMCRA and 30 CFR 816.41(j), the permittee must promptly
replace any drinking, domestic, or residential water supply that is
contaminated, diminished, or interrupted by underground mining
activities conducted after October 24, 1992, if the well or spring was
in existence before the permit application was received. Such water
supplies may be replaced by restoring a spring or an aquifer, or by
providing water from an alternative source, such as from another
aquifer or from a public water supply or a pipeline from another
location.
While a landowner may not desire the replacement of a water supply
on his or her property, a waiver is only permissible under the
circumstances set forth in paragraph (b) of the definition of
``Replacement of water supply'' at 30 CFR 701.5.
The definition of ``Replacement of water supply'' at 30 CFR 701.5
provides that, at paragraph (b), if the affected water supply was not
needed for the land use in existence at the time of loss,
contamination, or diminution, and if the supply is not needed to
achieve the postmining land use, replacement requirements may be
satisfied by demonstrating that a suitable alternative water source is
available and could feasibly be developed. If the latter approach is
selected, written concurrence must be obtained from the water supply
owner.
Therefore, the waiver of water supply proposed to be authorized by
the State must be consistent with the definition of ``Replacement of
water supply'' at 30 CFR 701.5. The Director notes that while section
720(a)(2) of SMCRA does not expressly authorize waivers, the
regulations implementing this provision recognize that waivers are
appropriate under certain circumstances, provided the permittee
demonstrates that an alternative source is available. However, under
the definition, no waivers (source or delivery system) are permissible
if the water supply is needed for either the existing land use or the
approved postmining land use.
The Director finds that the proposed language is not inconsistent
with SMCRA and the Federal regulations except to the extent that the
proposed waiver would not be implemented in accordance with the
definition of ``Replacement of water supply'' at 30 CFR 701.5. The
Director also finds that this revision satisfies the requirements of
948.16(q), and that 30 CFR 948.16(q) can be removed. In addition, the
Director is requiring that the West Virginia program be further amended
to clarify that under Section 22-3-24(b) and CSR 38-2-14.5(h), the
replacement of water supply can only be waived under the conditions set
forth in the definition of ``Replacement of water supply,'' paragraph
(b), at 30 CFR 701.5.
32. CSR Sec. 38-2-14.8 Steep Slope Mining
The State proposes to revise subparagraph (1) of paragraph (a) of
this subsection to provide that casting of spoil from a higher seam to
a lower seam in multiple seam operations may only occur where the
highwall of the lower seam intersects the outcrop of the upper seam;
the lowest seam is mined first or in advance of the upper seams; and
minimum bench widths based on slopes are established on the lower bench
sufficient to accommodate both spoil placement from the upper seam and
bench drainage structures. This revision is intended to satisfy in part
the requirements of 30 CFR 948.15(1)(2) by
[[Page 6525]]
preventing the placement of spoil on natural intervening slopes.
The Federal rules do not specifically address the use of cast
blasting as a means of spoil transport in multi-seam operations.
However, this practice is not inherently inconsistent with any Federal
requirement. The State rule does not exempt these operations from
compliance with other applicable requirements of the approved program.
Instead, it would provide additional assurance that cast lasting is
conducted in a safe and environmentally sound manner. For example, any
State authorized cast blasting would necessarily have to comply with
the approved State blasting provisions at CSR 38-2-6, such as the State
rules controlling flyrock at CSR 38-2-6.5(d). The approved State
requirements for the compaction and stability (a 1.3 static safety
factor is required) of the backfill at CSR 38-2-14.8(a)(4) also apply.
In some cases, the stability analysis might require that certain
materials need to be rehandled to place spoil in its final place or to
achieve adequate compaction of the backfill.
The approved State requirements for contemporaneous reclamation at
CSR 38-2-14.15 also apply. The approved State prohibition at CSR 38-2-
14.8(a)(1) of placing spoil on the downslope also applies. Where excess
spoil is involved, the approved State requirements at CSR 38-2-14.14
would also apply. The required amendment codified at 30 CFR 948.16(xx)
is being revised to require that the State amend its program at CSR 38-
2-14.8(a) to specify design requirements of outcrop barriers that will
be the equivalent of natural barriers and will assure the protection of
water quality and insure the long-term stability of the backfill. With
these considerations in mind, the Director finds that the amendment to
allow the use of cast blasting is not prohibited by or otherwise
inconsistent with SMCRA and the Federal regulations at 30 CFR 816.107
concerning backfilling and grading of steep slopes. The Director is
taking this opportunity to delete the required amendments codified at
30 CFR 948.16(yy) and (zz). The required amendments are being removed
because the West Virginia rules that had the deficiencies were never
approved by the West Virginia legislature and do not appear in the
latest submittal of the rules.
The State also proposes to revise subparagraph (4) of paragraph (a)
to prohibit placement of woody materials in the backfill unless the
Director first determines that the method of placement of woody
material will not deteriorate the future stability of the backfilled
area. The Director finds the amended language substantively identical
to 30 CFR 816.107(d), and that this revision satisfies the requirement
at 30 CFR 948.16(hh). 30 CFR 948.16(hh) is hereby removed.
33. CSR Sec. 38-2-14.11 Inactive Status
West Virginia proposes to revise paragraph (b) of this subsection
to provide that the Director may grant inactive status for a period not
to exceed one-half the permit term if it is determined that the
application contains sufficient information to meet all requirements of
paragraph (a): Provided that where the applicant documents in the
application that the operations will become inactive for more than 30
days, but will be reactivated on an intermittent and/or irregular basis
during the approval period, such operations are not required to reapply
for inactive status except at the termination date of the initial term
of approval: Provided, however, that the Director may review the
approval of inactive status during its term and require updated
information pursuant to paragraph (a) and, based upon this or other
information, may modify or rescind the approval prior to its initial
termination date. The Director finds the amended language to be no less
effective than 30 CFR 816.131 concerning temporary cessation of
operations, which requires notification to the regulatory authority by
the operator of any intention to temporarily cease mining for more than
30 days.
34. CSR Sec. 38-2-14.12 Variance From Approximate Original Contour
Requirements
West Virginia proposes to revise paragraph (a)(6) to provide that
the Director may grant a variance from the requirements for restoring
the mined land in steep slope areas to approximate original contour if
the watershed of the permit and adjacent area will be improved by
reducing pollutants, environmental impacts, or flood hazards; provided
that, the watershed will be deemed improved only if the amount of total
suspended solids or other pollutants discharged to ground or surface
water from the permit area will be reduced, or flood hazards will be
reduced, and if changes in seasonal flow volumes from the proposed
permit area will not adversely affect surface water ecology or any
existing or planned use of the surface or ground water. The Director
finds that this change satisfies the requirement at 30 CFR 948.16(ii)
and is no less effective than 30 CFR 785.16(a)(3)(i) and (ii). 30 CFR
948.16(ii) is hereby removed.
35. CSR 38-2-14.14 Disposal of Excess Spoil
Subsection (e)(2) provides that the valley fills shall be designed
to assure a long-term static safety factor of 1.5 or greater. The
Director finds that this provision satisfies 30 CFR 948.16(jj) which
can be removed, and is no less effective than 30 CFR 816.71(b)(2)
concerning excess spoil. 30 CFR 948.16(jj) is hereby removed.
Subsection (e)(10) is amended to limit the maximum grade from the
outslope of a valley fill toward the rock core to three percent. The
Director finds this amendment to be substantively identical to and no
less effective than 30 CFR 816.72(b)(3) concerning slopes of valley and
head-of-hollow fills.
36. CSR 38-2-14.15 Contemporaneous Reclamation Standards
West Virginia has completely revised this subsection to require
that the mining and reclamation plan for each operation describe how
the mining and reclamation operations will be coordinated to minimize
total land disturbance and to keep reclamation operations as
contemporaneous as possible with the advance of mining operations. The
revised provisions specify time, distance and acreage limits for single
seam contour mining, single seam contour mining and auger operations,
area mining, augering, multiple seam mining, and mountaintop removal
operations. The proposed rules set deadlines for existing and new
operations to comply with these requirements, and they allow the
Director to grant variances to specific standards with proper
justification. The Director finds these amended provisions to be
consistent with and no less effective than 30 CFR 816.100 concerning
contemporaneous reclamation, and the backfilling and grading
requirements at 30 CFR 816.102. The Director notes that 30 CFR 816.101
concerning time and distance requirements for contemporaneous
reclamation is suspended (57 FR 33875; July 31, 1992) and cannot be
used as a standard against which to judge the effectiveness of State
programs. As such, the Federal regulations do not contain specific time
and distance requirements, but only require, at 30 CFR 816.100, that
reclamation efforts occur as contemporaneously as practicable with
mining operations.
Subsection (m) is amended to add provisions governing the placement
of coal processing waste in the backfill. Under the proposed provision,
compaction shall be in accordance with CSR 38-2-22.3(p) and shall
achieve a
[[Page 6526]]
minimum static safety factor of 1.3. The coal processing waste shall
not contain acid-producing or toxic-forming material and shall be
placed in a controlled manner to: minimize effects on surface and
groundwater quality and quantity; ensure mass stability; ensure
suitable reclamation and revegetation compatible with the postmining
land use; not create a public hazard; and prevent combustion. Such
disposal facilities must be designed using current prudent engineering
practices and must meet any design criteria established by the
regulatory authority. Designs must be certified by a qualified
registered professional engineer. Any potential hazards must be
promptly reported. The Director finds these amendments do not render
the State program less effective than 30 CFR 816.81 (a) and (c)(1). 30
CFR 816.81(b) does not apply because the State is not proposing to
allow coal waste from activities located outside the permit area to be
placed in the backfill. 30 CFR 816.81(d) does not apply because the
coal waste will be placed in the backfill, and not in a refuse pile.
The State has proposed a static safety factor of 1.3 which is identical
to that required at 30 CFR 816.102(a)(3) concerning backfilling and
grading; general standards. The 1.3 static safety factor is the
appropriate factor to require, since the proposed provision concerns
placing coal waste in a backfill and not in a waste pile. Finally, the
Director notes that all the State provisions concerning the protection
of the hydrologic balance will continue to apply. The prohibition in
the proposed language to the placement of acid-producing and toxic-
forming material in the backfill will help assure the protection of the
hydrologic balance.
37. CSR Sec. 38-2-14-17 Control of Fugitive Dust
West Virginia proposes to revise this subsection to require that
all exposed surface areas be protected and stabilized to effectively
control erosion and air pollution attendant to erosion.
The Director finds this revision to be substantially identical to
and, therefore, no less effective than the Federal regulations at 30
CFR 816.95(a).
38. CSR 38-2-14.18 Utility Installations
WVDEP proposes to add a provision requiring that all surface mining
operations be conducted in a manner that minimizes damage, destruction,
or disruption of services provided by utilities. The Director finds the
added provision to be substantially identical to and, therefore, no
less effective than 30 CFR 816.180 concerning utility installations.
39. CSR 38-2-14-19 Disposal of Noncoal Waste
WVDEP proposes to add provisions to regulate the disposal of
noncoal waste such as grease, lubricants, garbage, abandoned machinery,
lumber and other materials generated during mining activities. Under
the proposal, final disposal of noncoal waste will be in accordance
with a permit issued pursuant to Chapter 22, Article 15 of the Code of
West Virginia (Solid Waste Management Act). The Director finds these
provisions consistent with the Federal regulations at 30 CFR 816.89(b)
which allows operators to dispose of noncoal mine waste in State-
appointed solid waste disposal areas outside of the permit area.
The proposed provisions would also allow timber from clearing and
grubbing operations to be wind-rowed below the projected toe of the
outslope. The Director finds these provisions to be non inconsistent
with the Federal regulations at 30 CFR 816.89 concerning disposal of
noncoal mine wastes. However, the proposed windrowing is less effective
than the Federal steep slope regulations at 30 CFR 816.107(b). 30 CFR
816.107(b) prohibits the placement of debris, including that from
clearing and grubbing, on the downslope in steep slope areas.
Therefore, the Director is approving the proposed amendments except to
the extent that windrowing would be allowed on the downslope in steep
slope areas. In addition, the Director is requiring that West Virginia
further amend CSR 38-2-14.19(d) to clarify that windrowing will not be
allowed on the downslope in steep slope areas.
40. CSR 38-2-15.2 Backfilling and Regrading; Underground Mines
The State proposes to revise paragraph (b) of this subsection to
require that reclamation activities of an underground mine be initiated
within 30 days of completion of underground operations. The Director
finds the proposed amendment to be consistent with 30 CFR 817.100
concerning contemporaneous reclamation.
41. CSR 38-2-16.2 Subsidence Control; Surface Owner Protection
West Virginia proposes to revise paragraph (c) of this subsection
by deleting the phrase, ``To the extent required under applicable
provisions of State law.'' This revision is intended to correct the
deficiency noted at 30 CFR 948.15(k)(11). The Director finds the
proposed deletion does not render the West Virginia program less
effective than 30 CFR 817.121(c)(2), and satisfies the deficiency noted
at 30 CFR 948.15(k)(11).
42. CSR Sec. 38-3-17 Small Operator Assistance Program (SOAP)
The State is making numerous changes to its SOAP provisions.
a. Subsection 17.1 is amended to identify services fundable under
the SOAP and to provide that the State will develop procedures for the
interstate exchange of SOAP information. While there is no Federal
counterpart to interstate exchanges of SOAP information, the Director
finds these changes to be consistent with and no less effective than 30
CFR 795.9 concerning program services and data requirements, and no
less stringent than section 507(c)(2) of SMCRA, concerning the
assumption of training costs.
b. Subsection 172. is amended to clarify that requests for SOAP
assistance must be in writing. The Director finds the amendment to be
consistent with 30 CFR 795.7 concerning filing for assistance.
c. Subsection 17.3 is amended to increase the production limit of
those operators eligible for assistance under the SOAP from 100,000 to
300,000 tons. The State is also raising, at 17.3(b)(1), the threshold
ownership percentage for which coal production from an operation will
be attributed to the applicant from five percent to ten percent
interest. Finally, the State is requiring that all coal produced by
operations owned by persons who directly or indirectly control the
applicant by reason of direction of the management be attributed to the
applicant. The Director finds these changes to be substantively
identical to counterpart provisions at 30 CFR 795.6(a). In addition,
the requirement at 30 CFR 948.16(kk) is satisfied and is hereby
removed.
d. Subsection 17.4 is amended to require SOAP applicants to use
application forms and format provided by the State. While there is no
direct Federal counterpart, the Director finds these changes to be
consistent with 30 CFR 795.7 concerning filing for assistance.
e. Subsection 17.5 is amended to provide that applicants be
notified in writing of approval or denial of a SOAP application. This
subsection is also amended to add that contractors may be used for SOAP
assistance to qualified laboratories. The Director finds these changes
to be consistent with and no less effective than 30 CFR 795.8(a)
concerning application approval and
[[Page 6527]]
notice, and 795.10(b) concerning subcontractors.
f. Subsection 17.6 is amended to add the term SOAP contractor, and
to provide that the laboratory or contractor must be qualified to
perform the required determinations and statements. The Director finds
the changes to be consistent with and no less effective than 30 CFR
795.10 concerning qualified laboratories and subcontractors.
g. Subsection 17.7(a)(4) and 17.7(a)(5) are amended to clarify that
operator liability will be based on actual and attributed annual
production for all locations of 300,000 tons during the 12-month period
immediately following permit issuance. The Director finds this
provision to be substantively identical to and no less effective than
30 CFR 795.12(a)(2), concerning applicant liability.
Subsection 17.7(b) is amended to require applicants to submit
written statements with sufficiently demonstrate that the applicant has
acted in good faith at all times prior to the State waiving the
reimbursement obligation. The Director finds this provision to be
substantively identical to 30 CFR 795.12(b).
43. CSR Sec. 38-2-18.3 Review of Decision Not to Inspect or Enforce
Subsection 18.3(b) has been revised to provide that any person who
is or may be adversely affected by the decision of the Director not to
inspect or enforce may appeal such decision to the Surface Mine Board
pursuant to Sec. 22-4-2 of the Code of West Virginia. The Director
finds the amended language to be substantively identical to and no less
effective than 30 CFR 842.15(d) concerning review of decision not to
inspect or enforce.
44. CSR Sec. 38-2-20.1 Inspection Frequencies
The State proposes to revise paragraph (a) of this subsection to
provide that prospecting operations be inspected ``as necessary'' to
assure compliance with the Act and these regulations. The Director
finds the proposed language to be substantively identical to and no
less effective than 30 CFR 840.11(c) concerning inspections by State
regulatory authorities.
45. CSR Sec. 38.2-20.2 Notices of Violations
Paragraph (a) of this subsection has been amended to provide that
when the Director determines that a surface mining and reclamation
operation or prospecting operation is in violation of any of the
requirements of the Act, these regulations or the terms and conditions
of the permit or prospecting approval, a notice of violation shall be
issued. Such notice of violation shall comply with all the requirements
and provisions of this subsection. In the past, pursuant to its Code of
Violations, the State issued enforcement actions rather than notices of
violation, for certain violations. This proposal will only allow the
issuance of a notice of violation. The Director finds the added
language no less effective than 30 CFR 843.12(a)(1) concerning notices
of violations.
Subparagraph (b)(3) has been amended to change the maximum initial
abatement period from 15-days to 30-days. This change is proposed to
render the regulations consistent with 22-3-17(o) of WVSCMRA which now
provides for an initial abatement period of 30 days, followed by a
maximum additional abatement period of 60 days following issuance of a
cessation order. The Director finds the change is reasonable and does
not render the West Virginia program less effective than 30 CFR
843.12(b)(3) concerning abatement of violations, or less stringent than
section 521(a)(3) of SMCRA, which allows a maximum total abatement
period of 90 days, following issuance of a notice of violation and
cessation order.
46. CSR Sec. 38-2-20.4 Show Cause Orders
West Virginia proposes to revise paragraph (b) of this subsection
by adding the phrase, ``where violations were cited.'' The proposal
provides that the Director may determine a pattern of violations exists
or has existed where violations were cited on two or more inspections
of the permit area within any 12-month period. The Director finds the
proposed change to be substantively identical to and no less effective
than 30 CFR 843.13(a)(2) concerning pattern of violations.
47. CSR Sec. 38-2-20.5 Civil Penalty Determinations
Paragraph (b) has been revised to provide that the Director shall,
for ``any'' cessation order, assess a civil penalty in accordance with
Sec. 22-3-17(a) of the WVSCMRA for each day of continuing violation,
except that such penalty shall not be assessed for more than 30 days.
In accordance with this change, the sentence requiring that imminent
harm cessation orders shall have an initial assessment in accordance
with subsection 20.7 of the regulations is deleted. The State now
assesses all cessation orders, including imminent harm cessation
orders, as if they were failure-to-abate cessation orders. That is,
they are assessed a civil penalty at the rate of $750 per day, for 30
days, beginning with the issuance date.
The Director finds that these proposed changes return the State
program to its former practice of assessing imminent harm cessation
orders as failure to abate cessation orders.
This practice was included in West Virginia's original permanent
program submittal, which OSM approved on January 21, 1981 (46 FR 5916-
5956). However, in 1991, West Virginia proposed to change this long-
standing practice to require that imminent harm cessation orders be
assessed according to the State's point system at CSR 38-2-20.7. The
Director did not approve this proposed change, noting that the State
failed to retain the requirement that civil penalties be assessed for
cessation orders in all instances, and that violations in imminent harm
cessation orders be assessed an additional penalty of $750 for each day
the failure to abate continues. The Director also questioned whether
the State has statutory authority to assess imminent harm cessation
orders using the point system (56 FR 58306, 58307; November 19, 1991).
Because of these deficiencies, the Director imposed a required
amendment, which is codified at 30 CFR 948.16(ddd) (Id. at 58311).
Within the current proposal to return to its former practice, West
Virginia has revised CSR 38-2-20.5(b) to require the assessment of
civil penalties for ``any'' cessation orders, in accordance with
Sec. 22-3-17(a), which requires that failure to abate cessation orders
be assessed at $750 per day for each day the failure to abate
continues. As such, imminent harm cessation orders will be assessed
penalties of $750 per day for each day a violation continues, both
before and after the target date for abatement. Therefore, the
reference to Sec. 22-3-17(a) satisfies the deficiency noted at 30 CFR
948.15(m) and the requirement at 30 CFR 948.16(ddd) concerning initial
and mandatory civil penalty assessment procedures for imminent harm
cessation orders. 30 CFR 948.16(ddd) is hereby removed.
The State also proposes to revise this paragraph to provide that if
the cessation order has not been abated within the 30-day period, the
Director shall initiate action pursuant to Sec. 22-3-17(b), (g), (h)
and (j) of the WVSCMRA as appropriate. The term ``modified'' was
deleted from previous language of this provision that read, ``* * *
abated or modified within the thirty (30) day period * * *.'' The
Director finds this revision satisfies the requirement at 30 CFR
948.16(eee). The deletion of the word ``modified'' is consistent with
the Federal regulations at 30 CFR 845.15(b)
[[Page 6528]]
concerning assessment of violations. The Director also finds that the
requirement coded at 30 CFR 948.16(fff) concerning the starting and
ending dates for civil penalty assessments is satisfied by the
reference to Sec. 22-3-17(a) of the WVSCMRA at CSR 38-2-20.5(b). 30 CFR
948.16 (eee) and (fff) are hereby removed.
48. CSR Sec. 38-2-20.6 Procedures for Assessing Civil Penalties
The State proposes to revise paragraph (d) of this subsection to
remove the restrictions on public participation at assessment
conferences. The proposed rule provides that any person may submit in
writing at the time of the assessment conference a request to present
evidence concerning the violation(s) being conferenced. Such request
must be granted by the assessment officer. The Director finds these
changes satisfy the deficiency codified at 30 CFR 948.15(m)(2) and the
requirement at 948.16(ggg). 30 CFR 948.16(ggg) is hereby removed.
Subparagraph (h) has been amended to change the citation of
Sec. 22-3-17(d)(3) or (4), to Sec. 22-3-17(d)(1) of WVSCMRA. This
change was made to be consistent with the changes made to Sec. 22-3-17;
see Finding A 11, above. The Director finds the citation changes do not
render the State program inconsistent with 30 CFR Part 845 and are
approved.
49. CSR Sec. 38-2-20.7 Assessment Rates
Paragraphs (a), (b) and (c) are revised to clarify that the
monetary denomination used in the assessment of civil penalties is
dollars. The Director finds the revisions satisfy the requirement at 30
CFR 948.16(hhh). 30 CFR 948.16(hhh) is hereby removed.
Paragraph (d) is revised to ensure that an operator is awarded good
faith only where abatement is achieved before the time set for
abatement. The Director finds these revisions satisfy the deficiency
codified at 30 CFR 948.15(m)(2) and the requirements of 948.16(iii). 30
CFR 948.16(iii) is hereby removed.
50. CSR Sec. 38-2-22 Coal Refuse
a. Subsection 22.2 to require that coal refuse disposal facilities
be designed to attain a minimum long-term static safety factor of 1.5
and a seismic factor of safety of 1.2. The Director finds the change
satisfies the requirements codified at 30 CFR 948.16(aaa). 30 CFR
948.16(aaa) is hereby removed.
b. Subsection 22.3(p) has been revised deleting the provision that
allows coal refuse piles to be constructed with slopes exceeding two
(2) horizontal to one (1) vertical. The Director finds this revision
satisfies the deficiency codified at 30 CFR 948.15(l)(2) and the
requirements of 948.16(bbb). 30 CFR 948.16(bbb) is hereby removed.
c. Subsection 22.4(f) has been amended to provide that Class A coal
refuse impoundments be designed for a minimum P100+0.12 (PMP-
P100) inches of rainfall in 6 hours and Class B coal refuse
impoundments be designed for a minimum P100+0.40 (PMP-P100)
inches of rainfall in 6 hours. The Director finds the proposed
amendments to be consistent with and no less effective than 30 CFR
816.84(b)(2).
d. Subsection 22.4(g) has been amended to add the requirement that
all impoundments meeting size or other criteria of 30 CFR 77.216(a)
must be designed and constructed to safely pass the probable maximum
precipitation (PMP) of a 24 hour storm event. The Director finds the
proposed amendment to be no less effective than 30 CFR 816.84(b)(2)
concerning the design event for coal refuse disposal impoundments
meeting or exceeding the criteria of 30 CFR 77.216(a) with one
exception. Rainfall data for design storms is usually obtained from the
U.S. Weather Service. The U.S. Weather Service's document ``Rainfall
Frequency Atlas,'' however, does not have data charts concerning PMP
for a 24-hour storm event. Without such data the standard cannot be
implemented. Therefore, the Director is requiring that West Virginia
demonstrate how the State would implement the PMP 24-hour standard, or
revise subsection 22.4(g) to require compliance with a PMP 6-hour
standard. Data for the PMP 6-hour storm event is available from the
U.S. Weather Service.
e. Subsections 22.4 (g) and (h) have been revised to allow the use
of single open channel or open channel spillways if they are of non-
erodible materials and designed to carry sustained flows or earth- or
grass-lined and designed to carry short-term, infrequent flows at non-
erosive velocities where sustained flows are not expected. The Director
finds these revisions satisfy the requirements at 30 CFR 948.16(mm). 30
CFR 948.16(mm) is hereby removed.
f. Subsection 22.5(a)(2) has been amended to provide that all coal
refuse sites be constructed and maintained so as to attain a minimum
long-term static safety factor of 1.5, and that structures that have
the capacity to impound water also attain a seismic safety factor of
1.2. The Director finds the proposed standards are consistent with the
requirements contained in 30 CFR 948.16(aaa) and can be approved.
g. Subsection 22.7(a) has been amended to require that inspections
of impounding refuse piles be made regularly, but not less than
quarterly during construction. In addition, inspections will be made
during placement and compaction of coal refuse material and during
critical construction periods. Subsection 22.7(c) is amended to provide
that impoundments not meeting MSHA size or other criteria be examined
at least quarterly. Subsection 22.7(d) is amended to provide that a
copy of each inspection or examination report be retained at or near
the mine site. The Director finds the proposed amendments to be
consistent with and no less effective than 30 CFR 816.83(d) concerning
inspections of refuse piles, 30 CFR 816.49(a)(12) concerning
impoundment examinations, and 816.49(a)(11)(iii) concerning inspection
reports.
51. CSR 38-2C-4 Training of Blasters
Section 4 has been amended to add a provision that would allow
applicants for certification or recertification to complete a self-
study course in lieu of the existing training program. Self-study
materials would be provided the State. While there is no direct Federal
counterpart, the Director finds the proposed language is consistent
with 30 CFR 850.13 concerning the training of blasters.
52. CSR 38-2C-5 Examination for Certification of Examiner/Inspector
and Certified Blaster
Subsections 5.1 and 5.2 are amended to add that the examination for
certified blaster will also test on information contained in the self-
study course established by Sec. 38-2C-4 as an option to completing the
refresher training course. While there is no Federal counterpart, the
Director finds the proposed language is not inconsistent with 30 CFR
850.13 concerning training of blasters.
53. CSR 38-2C-8.2 Refresher Training Course/Self-study Course
This subsection is amended to allow the completion of the self-
study course established by Sec. 38-2C-4 as an option to completing the
refresher training course. While there is no Federal counterpart, the
Director finds the proposed language is not inconsistent with 30 CFR
850.13 concerning training of blasters.
54. CSR 38-2C-10.1 Violations by a Certified Blaster
WVDEP proposes to remove language authorizing the Director to issue
a cessation order and/or take other action as provided by the WVSCMRA
Sec. 22-3-16 and 17 when a certified blaster is in violation of WVSCMRA
Sec. 22-3-1. The
[[Page 6529]]
Director retains authority to issue a notice of violation. While the
Federal regulations do not specifically provide for the issuance of
either notice of violations or cessation orders against certified
blasters, the Director finds the proposed changes are not inconsistent
with 30 CFR 850.15(b) concerning suspension and revocation of blaster
certification.
55. CSR 38-2C-11.1 Penalties
This subsection is amended to authorize the issuance of an order to
suspend a blaster's certification based on clear and convincing
evidence of a violation, and to provide for a hearing to show cause why
a blasters certification should not be suspended. Deleted from this
subsection and from subsection 11.2, and Sec. 38-2C-12 are reference to
cessation orders. The Director finds the proposed changes to be
consistent with and no less effective than 30 CFR 850.15(b) concerning
suspension and revocation of blaster certification.
56. CSR 38-2D-4.4 Reclamation Objectives and Priorities
This subsection is amended to clarify its objectives and priorities
for abandoned mine lands reclamation projects by indicating the
provision applies to ``past'' coal mining practices which may or may
not constitute and extreme danger. The Director finds the proposed
change to be no less stringent than section 403(a)(2) of SMCRA
concerning eligible lands and water.
57. CSR 38-2D-6.3(a) Acceptance of Gifts of Land
This section is revised to remove the requirement that the Director
accept gifts of land in accordance with Department of Justice
procedures for the acquisition of real property. The Director finds the
deletion does not render the West Virginia program less effective than
30 CFR 879.13 concerning acceptance of gifts of land.
58. CSR 38-2D-8.7 Grant Application Procedures
This section is amended to remove provisions which describe
procedures for completing and submitting a grant application to OSM for
the reclamation of abandoned mine lands. The Director finds the
proposed deletions do not render the West Virginia program less
effective than the grant application procedures at 30 CFR 886.15 which
contain no counterparts to the deleted language.
IV. Summary and Disposition of Comments
Public Comments
The Director solicited public comments and provided an opportunity
for public hearings on the proposed amendment on three separate
occasions. Public hearings were held on September 7, 1993, October 27,
1994, and May 30, 1995, (Administrative Record Nos. WV-906, WV-958, and
WV-983). OSM has published final rule notices on the provisions
concerning bonding and the provisions concerning durable rock fills.
Therefore, comments relating to those provisions will not be discussed
here.
Following is a summary of the substantive comments. Comments
voicing general support or opposition to the proposed amendment but
devoid of any specific issues are not discussed. The summarized
comments and responses are organized by subject. All comments and
responses have been adjusted to reflect the nomenclature of the May 16,
1995, version of the regulations.
Amendment Review Process
A commenter asserted that OSM has predetermined the proposed State
amendments in the Federal Register notice dated August 12, 1993 (58 FR
42903). Specifically, the commenter stated that OSM referred to a
``satisfaction in part of a federal referenced regulation'' (see
proposed regulation changes #19, 20, 33, 35, 37, 50, and 53 in the
August 12, 1993 notice). Such statements by OSM, the commenter
asserted, indicate that a decision has already been made and that the
changes will not be objectively considered by OSM. In response, the
Director believes that the commenter has misunderstood OSM's intention.
Under 30 CFR 732.17(h)(2)(i), OSM is required to inform the public of
proposed changes to State regulatory programs, and to publish the text
or a summary of the proposed State program amendments. As part of that
notification, OSM also identifies those proposed amendments that are
related to program deficiencies that are codified in the Federal
regulations at 30 CFR 948.16 concerning required program amendments.
This is done to draw the public's attention to the fact that the State
is addressing program deficiencies. Sometimes, proposed amendments
appear to address only part of the requirements codified at 30 CFR
948.16. In those cases, OSM often states that the proposed amendment is
intended to satisfy a portion of the requirements of a specific
paragraph codified at 30 CFR 948.16. In no way does such a statement by
OSM mean, or imply, that OSM has predetermined whether or not the
proposed amendment is approvable by OSM.
No Federal Counterpart Provisions
Some commenters made the assertion that in situations where there
are no Federal counterparts to the proposed State provisions that the
proposed provisions should not be of concern to OSM. In response, the
Director notes that, under 30 CFR 732.17, the State must submit and OSM
must review changes to approved State programs. In those cases where
there are no direct Federal counterparts to the proposed State
provisions, OSM will make a determination, under 30 CFR 732.15 (a) and
(c), of whether or not the State provisions are in accordance with
SMCRA and consistent with the Federal regulations, and that the
proposed State provisions would not interfere with or preclude
implementation of SMCRA or the Federal regulations.
Statutes
Sec. 22-3-13(b)(10) Performance standards: The commenter stated
that the charge to avoid acid or toxic mine drainage implies that you
have to avoid it at all costs, and that you can't have any alternative.
In response, the Director notes the provision is substantively
identical to section 515(b)(10)(A) of SMCRA (see Finding A9).
Sec. 22-3-19 Permit renewal and revision: A commenter stated that
the proposed renewal fee is required only when the operator is going to
continue active mining. Also, that a fee is not required for any
reclamation work, including regrading and certainly not needed for the
grass to grow. In response, the Director notes that under the proposed
rules at CSR 38-2-3.27(a), the WVDEP may waive, under specified
conditions, the requirements for permit renewal if coal removal is
completed. Therefore, the $2000 filing fee may not affect permittees
with only reclamation to be done.
Sec. 22-3-19(a)(2) Permit renewal and revision: The commenter
stated that the amended statute remains more than a bit fuzzy as to
whether or not the additional land area will be subject to the
procedural requirements of a new permit, i.e., public notice, review
and comment. The Director disagrees. The proposed language and the
State's June 16, 1994 (WV-923) clarification letter, both clearly state
that new areas being added to a permit at renewal will be subject to
the full permitting requirements of the West Virginia program,
including public review, notice, and comment.
[[Page 6530]]
Sec. 22-3-28 Special reclamation permits: The commenter said that
this section should be removed from the State program even though the
State has expressed interest in leaving it in the State program in the
event that OSM will, in the future, approve such special permits. In
response, the Director is not acting on this provision, at this time,
because the State has not made any substantive changes to this section.
The State will be notified via the 30 CFR part 732 process that the
provisions are inconsistent with SMCRA and should be removed.
Rules
Rulemaking Authority
A commenter stated that some of the proposed rules exceed the
authority granted to the Division under WV Code Sec. 22-3-11(a) to the
extent that they attempt to amend 38 CSR Secs. 14.8 (steep slope
mining) and 14.15 (backfilling and regrading). The commenter stated
that the legislation that authorized the Division to promulgate the
site-specific bonding regulations provided for a special exception from
the normal rulemaking procedure (allowing the Division to proceed to
final adoption without submission to the Legislature) specifically for
the purpose of implementing a new bonding system, and not for any other
amendments. In response, the Director notes that the West Virginia
statutes at Sec. 22-3-2 and Sec. 22-3-13(d) authorize the director of
the division of environmental protection to promulgate, administer and
enforce rules pursuant to the West Virginia Surface Coal Mining and
Reclamation Act. The rules the commenter referred to (CSR 38-2-14.8 and
14.15) were promulgated as legislative rules, and were approved by the
State legislature. See Findings B32 and B36 above for the Director's
findings on those amended rules.
General
CSR 38-2-1.2 Applicability: The commenter stated that this
provision should not have retroactive application. See Section V,
Director's Decision, below, for a complete explanation of the
Director's retroactive approval.
Definitions
CSR 38-2-2.20 Chemical treatment: Commenters are concerned that
this definition, which separates passive treatment from the definition,
will lead to problems related to bond release. The specific concern is
that if bond release is authorized in cases where passive treatment
system (e.g., limestone drains) are maintaining water quality
standards, then the risk is high that water quality will degrade after
bond release as the passive treatment systems lose effectiveness.
Another commenter said that there is no Federal counterpart and it
should be approved. This commenter said that the definition of
``chemical treatment'' applies to all facets of the regulations, not
just to bond release. The Director has approved the definition of
``chemical treatment'' except to the extent that the definition would
allow bond release where passive treatment systems are used to achieve
compliance with applicable effluent standards (see Finding B-2a above).
Although OSM encourages the use of passive treatment systems as an
integral part of surface mining and reclamation operations, the
effectiveness and reliability of such passive systems to control
pollutional discharges on a long-term basis has not been proven to the
extent that they can be considered an effective basis for bond release.
Permits
CSR 38-2-3.7 Excess spoil: The commenters object to the removal of
the authority to approve alternative design requirements for excess
spoil fills. The commenter stated that identical regulations have been
approved in the Virginia program at 480-03-19-816.73. In response, the
Director notes that the Virginia provision was approved because it
specifies criteria that such alternative designs must meet. Such
criteria are not present in the West Virginia rule, and the Director
did not approve the rule.
CSR 38-2-3.12 Subsidence control plan: One commenter expressed
concern as to whether or not State law is still a consideration on the
obligation to support the surface (from subsidence) under CSR 38-2-
16.2. Another commenter stated that nothing in State SMCRA has changed
to provide authority for removing the State law limitation found in the
State regulation. In response, the Director notes that the deletion of
the reference to state law is intended to clarify that the requirements
of CSR 38-2-16.2 are not to be diminished by other State law. The
amended State language is a response to the amendments made to Federal
SMCRA by the Energy Policy Act of 1992. The Energy Policy Act added new
section 720 to SMCRA to provide for the repair or compensation for
material damage caused by subsidence, and the replacement of drinking,
domestic, or residential water supplies damaged by underground coal
mining operations. The Federal regulations implementing section 720 of
SMCRA were published in the Federal Register on March 31, 1995 (60 FR
16722-16751). Neither section 720 of SMCRA nor the implementing
regulations defer to State law concerning the requirements to repair or
compensate for subsidence-caused material damage to dwellings and
related structures or the replacement of water supplies damaged by
underground coal mining operations.
CSR 38-2-3.14 Removal of abandoned coal waste piles: The commenter
apparently disagrees with the proposed provision concerning the need
for a permit if the coal waste material can be classified as coal using
the BTU standard in ASTM D 388-88. In response, the Director notes that
if a mined deposit is coal, a permit is required. Section 506 of SMCRA
requires a permit if coal mining operations are to be conducted. The
Federal regulations at 701.5 define surface mining activities to
include the recovery of coal from deposits not in their original
geologic location, which would include the reprocessing of abandoned
waste piles.
CSR 38-2-3.27 Permit renewals: The commenter disagrees with the
proposed language that allows the State to waive the requirements for
permit renewal only where all coal extraction is completed and all
backfilling and regrading will be completed within 60 days prior to the
expiration date of the permit. The commenter states that Federal law
only requires a permit in order to ``mine'' and does not require that
reclamation be permitted. In response, the Director notes that the
proposed State provision is consistent with and is a reasonable
interpretation of the Federal requirements at 30 CFR 773.11(a)
concerning the requirements to obtain permits. See Finding B.14 above
for the Director's approval of this provision.
CSR 38-2-3.28 Permit revisions: The commenter disagrees with the
amendments that would allow the State to determine if an updated
probable hydrologic consequences (PHC) determination is necessary, or
if other permit revisions are necessary. In response, the Director
notes that the State requirements concerning the PHC are consistent
with the Federal requirements at 30 CFR 780.21(f)(4). The State
provision concerning reasonable revisions is consistent with the
Federal requirements at 30 CFR 774.11(b) concerning review of permits.
CSR 38-2-3.28 Permit revisions: The commenter stated that new
provisions cannot be applied retroactively. See Section V, Director's
Decision, below, for a complete explanation of the Director's
retroactive approval.
[[Page 6531]]
CSR 38-2-3.29 Incidental boundary revisions (IBR's): The commenter
stated that it should be mandatory for the State to require an
advertisement and a ten day public comment period for any IBR greater
than 50 acres in size that might be granted pursuant to the waiver
provision at the end of CSR 38-2-3.29(b)(2). The Director does not
agree. A requirement to advertise in all such cases would eliminate the
possibility of the regulatory authority exercising reasonable
discretion in the conduct of its responsibilities. Also, neither SMCRA
nor the Federal regulations require notice or comment on proposed
IBR's. The approved State program does, however, provide for appeals of
decisions by the regulatory authority under CSR 38-2-18.
CSR 38-2-3.34(b) and (g) Improvidently issued permits: The
commenter disagrees with these amendments and stated that the
provisions appear to be for the purpose of covering agency mistakes,
with no regard for the coal operator. The Director disagrees. As noted
in Finding B21, above, the proposed changes are consistent with the
language and intent of the Federal regulations at 30 CFR 773.20
concerning improvidently issued permits and 773.15 concerning review of
permit applications.
Roads
CSR 38-2-4 Haulageways or Access Roads: The commenter said there
is no Federal requirement in this area. The Director disagrees. The
counterpart Federal provisions are at 30 CFR 816.150 concerning roads;
general, and 816.151 concerning primary roads.
CSR 38-2-4.4 Infrequently used access roads: The commenter
disagrees with the need for the proposed language. The commenter stated
that the key to the requirements for infrequently used access roads is
use and frequency of use. Unless the road is used frequently, the
operator should not be required to spend large sums of money on
extensive plans, pipes, drains and other costly items. In response, the
Director notes that a road's impact on the environment is only partly
derived from the use of the road. The degree of alteration of the
natural land configuration of the road itself can be the greater source
of environmental harm. The proposed rules are designed to minimize
those impacts.
Drainage and Sediment Control
CSR 38-2-5.5 Permanent impoundments: The commenter stated that
permanent impoundments should be encouraged, not restricted. In
response, the Director notes that the provisions concerning the
retention of permanent impoundments both authorize the retention of
such impoundments and ensure sound future maintenance.
Blasting
CSR 38-2-6.3(a) Public notice of blasting operations: The commenter
stated that all natural gas pipelines should be included within the
definition of ``public utilities'' at subsection 6.3(a) and be notified
of the blasting schedule. Without such notice, the commenter stated,
the opportunity for significant input on the specifics of the blasting
plan may be lost without written notice at the permit stage. As
discussed in Finding B26b, above, the proposed State language is
substantively identical to and, therefore, no less effective than the
Federal regulations at 30 CFR 817.64(a). The Director agrees that such
notice would be valuable, however, and encourages the commenter to
discuss this matter with the regulatory authority.
Insurance and Bonding
CSR 38-2-11.1 Insurance: The commenter stated that the amendment
is unclear and that it seems as though blasting liability continues
after blasting is continued. The Director disagrees. The State language
clearly states that insurance coverage for blasting damage may be
terminated prior to final bond release, but not before blasting
activities have ceased. The provision also requires that even though
blasting coverage may be terminated, the full amount of the liability
coverage (from subsection 11.1(a)) shall continue throughout the life
of the permit (or renewal).
Notice of Intent To Prospect
CSR 38-2-13.6(a)(7), (f)(6) Prospecting roads: The commenter
recommended that the proposed language not be approved. There is no
Federal counterpart for prospecting roads, the commenter asserted, and
the proposed requirements would be expensive and not cost effective for
such roads which are often infrequently used. In response, the Director
notes that requirements for prospecting roads are intended to be
counterparts to the Federal requirements for roads at 30 CFR 816.150,
and as noted in Finding B30, above, the amendments are approved. 30 CFR
815.15(b) concerning coal exploration standards requires the
application of 816.150(b) through (f) for coal exploration which causes
substantial disturbance.
Performance Standards
CSR 38-2-14.5(h) Waiver of water supply replacement: The commenter
stated that no waivers of water supply should be allowed because they
would be inconsistent with the Energy Policy Act of 1992. In response,
and as discussed above in Finding B31, above, the Director has
determined that the proposed language is not inconsistent with SMCRA
and the Federal regulations except to the extent that the proposed
waiver would not be implemented in accordance with the definition of
``Replacement of water supply'' at 30 CFR 701.5. In addition, the
Director is requiring that the West Virginia program be further amended
to clarify that under CSR 38-2-14.5(h), the replacement of water supply
can only be waived under the conditions set forth in the definition of
``Replacement of water supply,'' paragraph (b), at 30 CFR 701.5.
CSR 38-2-14.8 Steep slope mining: A commenter stated that the
downslope prohibition (in 14.8(a)(1)) seems to be a new condition and
does not take into consideration the unusual geologic conditions of the
southern West Virginia coal fields. In response, the Director notes
that, as discussed above in Finding B32, the amendment is intended to
prevent the placement of spoil on natural intervening slopes in steep
slope operations. The amendment renders the State provision
substantively identical to 30 CFR 816.107(b)(1), which prohibits spoil
placement on the downslope.
A commenter suggested that, to improve clarity of the new language
at CSR 38-2-14.8(a)(1), the phrase ``multiple seam operations'' be
amended to read ``multiple seam contour operations.'' The Director
notes that, while the change would improve clarity, contour mining is
logically implied by the amendments and the State need not be required
to revise the language.
A commenter also stated disagreement with the prohibition at CSR
38-2-14.8(a)(4) concerning placement of woody material in the backfill.
The commenter asserted that when done right, such placement does not
cause stabilization problems. In response, the Director notes that the
proposed language is substantively identical to the Federal regulations
at 30 CFR 816.107(d). The State language does allow the placement of
woody materials in the fill if the regulatory authority first
determines that the method of placement of woody material will not
deteriorate the future stability of the backfilled area.
CSR 38-2-14.15 Contemporaneous reclamation standards: The
commenter
[[Page 6532]]
made numerous comments and provided recommended language concerning
these provisions. While the comments and recommendations may have
merit, the commenter is not asserting that any of the proposals are
inconsistent with SMCRA or the Federal regulations. Since the Director
need only decide whether amendments are in accordance with SMCRA and
the Federal regulations, he will not require the State to add language
to its program if it is not needed to bring the program into compliance
with Federal law and
FR Doc. 96-3413 West Virginia Regulatory Program
regulations. As noted in Finding B36, above, the
Director has determined that the State's proposed language is
consistent with the Federal regulations at 30 CFR 816.100 concerning
contemporaneous reclamation standards and can be approved (see Finding
B36, above).
CSR 38-2-14.19(d) Disposal of noncoal mine wastes: The commenter
recommended that OSM disapprove the proposal to allow the wind-rowing
of timber below the toe of the outslope. The commenter stated that OSM
has disapproved this practice in the past and should do so once again.
As explained above in Finding B39, the Director is approving the
proposed amendments except to the extent that the amendments would
allow wind-rowing on the downslope in steep slope areas. Such wind-
rowing in steep slope areas would be less effective than 30 CFR
816.107(b)(3).
Subsidence Control
CSR 38-2-16.2(c)(2) Subsidence control; surface owner protection:
The conmenter stated that deletion of the phrase ``To the extent
required under applicable provisions of State law'' should not have
been proposed because court decisions negate the validity of the
disapproval of that phrase and the disapproval at 30 CFR 948.15(k)(11).
In response, the Director notes that the Energy Policy Act of 1992
amended SMCRA at new section 720 to require the repair or compensation
for subsidence-caused material damage to certain structures. The new
SMCRA provision does not provide for a deference to State law.
Inspection and Enforcement
CSR 38-2-20.6 Procedure for assessing civil penalty: Two
commenters stated that this section should be modified to ensure that
it is clear that citizens with information and interests which support
a coal operation or operator should be equally free to participate in
assessment conferences as are citizens who are opposed. The Director
disagrees that the State language is unclear. The State provision
clearly states that ``[a]ny person, other than the operator and
Division of Environmental Protection representives, may submit in
writing at the time of the conference a request to present evidence
concerning the violation(s) being conferenced.'' Clearly, the provision
does not state that the evidence must be either in support of or
against the violation(s) being conferenced. The commenters also
questioned why ``any'' person could participate in the conference, and
stated that the Division of Environmental Protection should have the
discretion of allowing those they feel are genuinely affected by the
proceeding to attend, not just anybody or everybody who might petition.
In response, the Director notes that subsection CSR 38-2-20.6(e)
provides that the conference assessment officer shall consider all
relevant information on the violation(s). Therefore, the assessment
officer has some discretion to determine what information is relevant
to the violation(s) being conferenced.
CSR 38-2-22 Coal Refuse: The commenter stated that this section
should be amended to clarify that the coal refuse regulations do not
apply to coal refuse placed in the backfill, but only to isolated and
distinct structures designed solely or primarily for coal refuse
disposal. The Director partially agrees. 30 CFR 816.81 concerning coal
mine waste general requirements, provides that all coal mine waste
disposed of in an area other than the mine workings or excavations
shall be placed in new or existing disposal areas within the permit
area. The regulations at 30 CFR 816.83 provide the standards for coal
mine waste refuse piles, with particular emphasis on stability and
drainage control. Coal mine waste that is placed in the backfill,
however, presents potential acidity and toxicity problems that must be
addressed just as those problems must be addressed if the coal waste is
placed in a separate structure. The State has addressed those potential
problems in its rules concerning coal refuse in the backfill at CSR 38-
2-14.15(m) (see Finding B36, above). In designing those regulations,
the State used applicable standards from 30 CFR 816.81 concerning coal
mine waste. In approving the proposed State provisions, OSM compared
them to applicable parts of 30 CFR 816.81 as the primary standards for
preventing the formation of acidity and toxicity.
CSR 38-2-22.4(f) Design storm specifications: The commenter
supports the proposed changes and stated that those changes bring the
State standards in line with Federal standards. In response, the
Director notes that as explained in Finding B50c, above, the proposed
amendments are approved except to the extent that the new standards
apply to impoundments that meet the size or other criteria of 30 CFR
77.216(a). 30 CFR 816.84(b)(2) provides that impoundments that meet the
size or other criteria of 77.216(a) must be designed for a probable
maximum precipitation (PMP) of a six-hour or greater precipitation
event.
Federal Agency Comments
Pursuant to section 503(b)(1) of SMCRA and 30 CFR 732.17(h)(11)(i),
OSM solicited comments on the proposed amendment from various Federal
agencies with an actual or potential interest in the West Virginia
program on four different occasions (Administrative Record Nos. WV-891,
WV-897, WV-936, and WV-942). Comments were received from the U.S.
Bureau of Land Management, the U.S. Bureau of Mines, and the U.S. Army
Corps of Engineers. These Federal agencies acknowledged receipt of the
amendment, but generally had no comment or acknowledged that the
revisions were satisfactory.
The Mine Safety and Health Administration (MSHA) commented that CSR
38-2-14.15(m) concerning coal processing waste disposal, and CSR 38-2-
14.19(d) concerning disposal of non-coal waste may be less restrictive
than MSHA's requirements. For example, MSHA stated that MSHA's minimum
design criteria for refuse piles (30 CFR 77.214 and 77.215) have
provisions requiring the placement of clay over any exposed coal beds
before constructing a refuse pile, and also prohibit the placement of
any extraneous combustible materials in a refuse pile. In response, the
Director notes that the State rules at CSR 38-2-14.15(m) provide that
where approval for placing coal processing waste in the backfill has
been granted, such placement shall be done in accordance with the
compaction requirements of CSR 38-2-22.3(p). CSR 38-2-22.3(p) requires
MSHA approval of any alternate construction plans for refuse piles in
compacted layers exceeding two feet in thickness. In addition, the
proposed language provides that the coal processing waste will not
contain acid-producing or toxic-forming material. Also, CSR 38-2-
14.19(c) provide that noncoal mine waste shall not be deposited in a
refuse pile or impounding structure, nor shall an excavation for a
noncoal mine waste disposal site be located within eight feet of any
coal outcrop or coal storage area. In addition, under both of these
rules,
[[Page 6533]]
the coal processing waste would be placed in the backfill, a location
from which the coal has already been removed. Finally, nothing in CSR
38-2-14.15(m) or 14.19 excuses the operator from compliance with
applicable MSHA requirements. The Director recognizes the applicability
of 30 CFR 77.214 and 77.215 to refuse piles.
Environmental Protection Agency (EPA)
Pursuant to 30 CFR 732.17(h)(11)(ii), OSM is required to obtain the
written concurrence of the EPA with respect to those provisions of the
proposed program amendment that relate to air or water quality
standards promulgated under the authority of the Clean Water Act (33
U.S.C. 1251 et seq.) or the Clean Air Act (42 U.S.C. 7401 et seq.).
On July 2 and August 3, 1993 (Administrative Record Nos. WV-892 and
WV-896), and June 29, 1995 (Administrative Record No. WV-999) OSM
solicited EPA's concurrence on the proposed amendments. On October 17,
1994 (Administrative Record No. WV-949), EPA gave its written
concurrence with a condition on subsection 5.4(b)(2) of West Virginia's
regulations. Subsection CSR 38-2-5.4(b)(2) is not being amended, and is
not, therefore, a subject of this rulemaking. EPA also submitted
comments concerning various State provisions that are not being
amended. Since the provisions are not being amended, EPA's comments
will not be addressed here.
EPA also responded by letter dated January 31, 1996, with its
concurrence with the proposed amendments (Administrative Record No. WV-
1019). In that letter, EPA provided comments in support of CSR 38-2-
14.15(m) concerning the prohibition of acidic coal processing waste
being placed in backfills, and Sec. 22B-3-4(c) concerning variances to
water quality standards for coal remaining operations.
V. Director's Decision
Based on the above findings, and except as noted below, the
Director is approving with certain exceptions and additional
requirements the proposed amendments as submitted by West Virginia on
June 28, 1993, as modified on July 30, 1993; August 18, 1994; September
1, 1994; and May 16, 1995. As discussed in the findings, there are some
exceptions to this approval, and those are noted below. The Director is
also requiring the State to make additional changes to certain
provisions to ensure that the program is no less stringent than SMCRA
and no less effective than the Federal regulations. Those requirements
are also noted below.
At Sec. 22-3-13(e)--The authorization to promulgate rules that
permit variances from approximate original contour is approved to the
extent that it only applies to steep slope areas as defined at WVSCMRA
Sec. 22-3-13(d). The Director is requiring that West Virginia amend its
program to limit such variances to industrial, commercial, residential,
or public alternative postmining land use, in accordance with section
515(e)(2) of SMCRA.
At Sec. 22B-1-7(d)--The authorization to allow temporary relief
where the appellant demonstrates that the executed decision appealed
from will result in the appellant suffering an ``unjust hardship'' is
not approved. The Director is requiring that West Virginia further
amend Sec. 22B-1-7(d) to be consistent with SMCRA sections 514(d) and
525(c).
At Sec. 22B-1-7(h)--The authorization that would allow the Surface
Mining Board to consider economic feasibility of treating or
controlling discharges from surface coal mining operations in appeals
from decisions of an order, permit, or official action is not approved.
The Director is requiring that West Virginia further amend Sec. 22B-1-
7(h) to be no less stringent than SMCRA section 515(b)(10) and no less
effective than the Federal regulations at 30 CFR 816.42, by requiring
discharges to be controlled or treated without regard to economic
feasibility.
At CSR 38-2-1.2(c)(1)--The termination of jurisdiction over an
initial program site except to the extent that subsection (c)(1) does
not require compliance with the Federal initial program regulations at
Subchapter B or to the West Virginia permanent program as a
prerequisite to the termination of jurisdiction. The Director is
requiring that the State further amend subsection (c)(1) to require
compliance with the Federal initial program regulations at Subchapter B
or the West Virginia permanent regulatory program rules as a
prerequisite to the termination of jurisdiction over an initial program
site.
At CSR 38-2-2.92--The definition of ``chemical treatment'' except
to the extent that the definition of ``chemical treatment'' would allow
bond release where passive treatment systems are used to achieve
compliance with applicable effluent limitations. The Director is
requiring that West Virginia further amend the West Virginia program to
clarify that bond may not be released where passive treatment systems
are used to achieve compliance with applicable effluent limitations.
At CSR 38-2-3.1(o)--The grouping of ownership and control
information is approved to the extend that all permit applicants which
maintain centralized ownership and control files are also required to
comply with all of the informational provisions contained in CSR 38-2-
3.1.
At CSR 38-2-4.2(b)--Is approved to the extent that the provisions
pertain to all roads, whether they are within or crossing a stream.
At CSR 38-2-4.4--Is approved except to the extent that it exempts
infrequently used access roads from the requirements of subsection 4.9.
The Director is also requiring the State to amend its program to
require that all infrequently used access roads comply with CSR 38-2-
4.9.
At CSR 38-2-4.11--Is approved to the extent that the provision does
not exclude facilities that are included within the definition of
``surface coal mining operations'' at 30 CFR 700.5.
At CSR 38-2-14.5(h)--Is approved except to the extent that the
proposed waiver would not be implemented in accordance with the
definition of ``Replacement of water supply'' at 30 CFR 710.5. The
Director is requiring that West Virginia further amend CSR 38-2-14.5(h)
and amend Sec. 22-3-24(b) to clarify that the replacement of water
supply can only be waived under the conditions set forth in the
definition of ``Replacement of water supply,'' paragraph (b), at 30 CFR
701.5.
At CSR 38-2-14.19--Is not approved to the extent that windrowing
would be allowed on the downslope in steep slope areas. In addition,
the Director is requiring that West Virginia further amend CSR 38-2-
14.19(d) to clarify that windrowing will not be allowed on the
downslope in steep slope areas.
At CSR 38-2-22.4(g)--The Director is requiring that West Virginia
demonstrate how the State would implement the PMP 24-hour standard, or
revise subsection 22.4(g) to require compliance with a PMP 6-hour
standard.
The Director is amending 30 CFR Part 948 to codify this decision.
With respect to those changes in State laws and regulations approved in
this document, the Director is making the effective date of this
approval retroactive to the date upon which they took effect in West
Virginia for purposes of State law. He is taking this action in
recognition of the extraordinarily complex nature of the review and
approval process for this amendment and the need to affirm the validity
of State actions taken during the interval between State implementation
and the decision being announced today. Retroactive approval of these
provisions is in keeping with the purposes of SMCRA relating to State
primacy and environmental protection.
[[Page 6534]]
To assure consistency with 30 CFR 732.17(g), which state that
``[no] * * * change to laws or regulations shall take effect for
purposes of a State Program until approved as an amendment,'' The
Director's approval of the revisions, as noted in the codification
below, includes West Virginia's previous and ongoing implementation of
these revisions.
Retroactive approval of the revisions is appropriate because no
detrimental reliance on the previous West Virginia laws or regulations
has occurred for the period involved. OSM is approving these changes
back only to the dates from which West Virginia began enforcing them.
As support for this decision, the Director cites the rationale employed
by the United States Claims Court in McLean Hosp. Corp. v. United
States, 26 Cl.Ct. 1144 (1992). In McLean, the court held that
retroactive application of a rule was appropriate where the rule was
identical in substance to guidelines which had been in effect anyway
during the period in question. Therefore, the Court concluded, the
plaintiff could not ``claim that it relied to its detriment on a
contrary rule.'' 26 Cl.Ct. at 1148. Likewise, since the Director is
approving changes which the State has been enforcing there can be no
claim of detrimental reliance on any contrary West Virginia Statutes or
regulations in this instance.
Making portions of the approval retroactive does not require
reopening of the public comment period under section 553(b)(3) of the
Administrative Procedure Act (APA), 5 U.S.C. 553(b)(3). The public, in
general, and the coal industry in particular have had sufficient notice
of these revised statutory and regulatory revisions to support
retroactive OSM approval. Retroactive approval constitutes an
acknowledgement of statutory and regulatory revisions which West
Virginia has been implementing since the respective approval dates of
these revisions at the State level, and would have been expected as a
natural outgrowth of the proposal. The retroactive approval does not
apply to earlier versions of these provisions to the extent that such
provisions were inconsistent with Federal requirements.
Furthermore, ``good cause'' both under section 553(b)(3)(B) of the
APA, 5 U.S.C. 553(b)(3)(B), for retroactive approval (if notice were
not sufficient) and under section 553(d)(3) of APA, 5 U.S.C. 553(d)(3),
for not delaying the effective date of the approval for 30 days after
the publication of this Federal Register decision document. As noted in
the findings above, many of these program revisions are needed to
render the West Virginia program consistent with SMCRA and no less
effective than the Federal regulations.
Failure to make OSM approval of these statutory and regulatory
provisions retroactive could cause significant disruption to the
orderly enforcement and administration by the State of the West
Virginia program. The Director believes that the desire to avoid a
significant disruption of the West Virginia program, coupled with the
lack of any prejudice to the public or to the regulated community, are
sufficient bases to constitute ``good cause.''
Effect of Director's Decision
Section 503 of SMCRA provides that a State may not exercise
jurisdiction under SMCRA unless the State submits and obtains the
Secretary's approval of a regulatory program. Similarly, 30 CFR
732.17(a) requires that the State submit any alteration of an approved
State program to OSM for review as a program amendment. Thus, any
changes to the state program are not enforceable until approved by OSM.
The Federal regulations at 30 CFR 732.17(g) prohibit any unilateral
changes to approved State programs. In oversight of the West Virginia
program, the Director will recognize only the statutes, regulations and
other materials approved by OSM, together with any consistent
implementing policies, directives and other materials, and will require
the enforcement by West Virginia of only such provisions. The
provisions that the Director is approving today will take effect on the
specified dates for purposes of the West Virginia program.
VI. Procedural Determinations
Executive Order 12866
This rule is exempted from review by the Office of Management and
Budget (OMB) under Executive Order 12866 (Regulatory Planning and
Review).
Executive Order 12778
The Department of the Interior has conducted the reviews required
by section 2 of Executive Order 12778 (Civil Justice Reform) and has
determined that, to the extent allowed by law, this rule meets the
applicable standards of subsections (a) and (b) of that section.
However, these standards are not applicable to the actual language of
State regulatory programs and program amendments since each such
program is drafted and promulgated by a specific State, not by OSM.
Under sections 503 and 505 of SMCRA (30 U.S.C. 1253 and 1255) and 30
CFR 730.11, 732.15 and 732.17(h)(10), decisions on proposed State
regulatory programs and program amendments submitted by the states must
be based solely on a determination of whether the submittal is
consistent with SMCRA and its implementing Federal regulations and
whether the other requirements of 30 CFR Parts 730, 731, and 732 have
been met.
National Environmental Policy Act
No environmental impact statement is required for this rule since
section 702(d) of SMCRA (30 U.S.C. 1292(d)) provides that agency
decisions on proposed State regulatory program provisions do not
constitute major Federal actions within the meaning of section
102(2)(C) of the National Environmental Policy Act (42 U.S.C.
4332(2)(C)).
Paperwork Reduction Act
This rule does not contain information collection requirements that
require approval by OMB under the Paperwork Reduction Act (44 U.S.C.
3507 et seq.).
Regulatory Flexibility Act
The Department of the Interior has determined that this rule will
not have a significant economic impact on a substantial number of small
entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.).
The State submittal which is the subject of this rule is based upon
counterpart Federal regulations for which an economic analysis was
prepared and certification made that such regulations would not have a
significant economic effect upon a substantial number of small
entities. Accordingly, this rule will ensure that existing requirements
previously promulgated by OSM will be implemented by the State. In
making the determination as to whether this rule would have a
significant economic impact, the Department relied upon the data and
assumptions for the counterpart Federal regulations.
List of Subjects in 30 CFR Part 948
Intergovernmental relations, Surface mining, Underground mining.
Dated: February 8, 1996.
Allen D. Klein,
Regional Director, Appalachian Regional Coordinating Center.
For the reasons set out in the preamble, Title 30, Chapter VII,
Subchapter T of the Code of Federal Regulations is amended as set forth
below:
[[Page 6535]]
PART 948--WEST VIRGINIA
1. The authority citation for Part 948 continues to read as
follows:
Authority: 30 U.S.C. 1201 et seq.
Sec. 948.12 [Amended]
2. Section 948.12 is amended by removing and reserving paragraphs
(a), (c), (d), (g) and (h).
Sec. 948.13 [Amended]
3. Section 948.13 is amended by removing and reserving paragraphs
(a), (b), (e) and (f).
4. Section 948.15 is amended by adding paragraph (p) to read:
Sec. 948.15 Approval of regulatory program amendments.
* * * * *
(p)(1) General description and effective dates. Except as noted in
paragraph (p)(3) of this section, the amendment submitted by West
Virginia to OSM by letter dated June 28, 1993, as revised by submittals
dated July 30, 1993; August 18, 1994; September 1, 1994; and May 16,
1995, is approved to the extent set forth in paragraph (p)(2) of this
section. The effective dates of the Director's approval of the
provisions identified in paragraph (p)(2) of this section are:
(i) July 1, 1990, for those statutory amendments contained in HB-
202;
(ii) June 7, 1991, for those amendments contained in SB-579;
(iii) October 16, 1991, for those amendments contained in HB-217;
(iv) July 1, 1994, for those amendments contained in HB-4030;
(v) June 11, 1994, for those amendments contained in HB-4065;
(vi) February 10, 1995, for those amendments contained in SB-250;
(vii) March 10, 1995, for those amendments contained in HB-2134;
(viii) June 9, 1995, for those amendments contained in SB-287 and
HB-2523;
(ix) May 2, 1993, for those rule changes submitted on June 28, 1993
(WV-889);
(x) June 1, 1991, for those changes submitted on July 30, 1993 (WV-
893) which were not identified as changes in the June 28, 1993,
submittal (WV-889);
(xi) June 1, 1994, for those rule changes submitted on September 1,
1994 (WV-937);
(xii) May 1, 1995, for those blaster certification revisions
submitted on May 8, 1995 (WV-979);
(xiii) June 1, 1995, for those abandoned mine land revisions
submitted May 8, 1995 (WV-979);
(xiv) June 1, 1995, for all remaining changes submitted on May 16,
1995 (WV-979).
(2) Approved revisions. Except as noted in paragraph (p)(3) of this
section, the following provisions of the amendment described in
paragraph (p)(1) of this section are approved:
(i) Revisions to the West Virginia Surface Coal Mining and
Reclamation Act
1. Sec. 22-1-4 through 8--Division of Environmental Protection.
2. Sec. 22-2--Abandoned Mine Lands and Reclamation Act.
3. Sec. 22-3-3--Definitions.
4. Sec. 22-3-5--Surface Mining Inspectors and Supervisors.
5. Sec. 22-3-7--Notice of Intent to Prospect.
6. Sec. 22-3-8--Surface Mining Reclamation Permit.
7. Sec. 22-3-9--Permit Application Requirements.
8. Sec. 22-3-9a--Permit to Mine Two Acres or Less. [Deleted]
9. Sec. 22-3-13--Performance Standards to the extent that subsection
13(e) only applies to steep slope areas as defined in Sec. 22-3-
13(d).
10. Sec. 22-3-15--Inspections.
11. Sec. 22-3-17--Notice of Violation.
12. Sec. 22-3-18--Permit Approval.
13. Sec. 22-3-19--Permit Renewal and Revision Requirements.
14. Sec. 22-3-22--Designation of Areas Unsuitable for Mining.
15. Sec. 22-3-26--Surface Mining Operations Not Subject to the Act.
16. Sec. 22-3-28--Special Permits for Abandoned Coal Waste Piles.
17. Sec. 22-3-40--National Pollutant Discharge Elimination System
(NPDES).
18. Sec. 22B-1-4 through 12--Environmental Boards; General Policy
and Purpose, except language at Sec. 22B-1-7(d) which allows
temporary relief where the appellant demonstrates that the executed
decision appealed from will result in the appellant suffering an
``unjust hardship'' and except language at Sec. 22B-1-7(h) which
allows the Surface Mining Board to consider economic feasibility of
treating or controlling discharges from surface coal mining
operations in appeals from decisions of an order, permit, or
official action.
19. Sec. 22B-3-4--Environmental Quality Board.
20. Sec. 22B-4--Surface mine board.
(ii) Revisions to the West Virginia Surface Mining Reclamation
Regulations
1. CSR Sec. 38-2-1.2--Applicability; except subsection 1.2(c)(1)
to the extent that it does not require compliance with the Federal
initial program regulations at Subchapter B or the West Virginia
permanent regulatory program as a prerequisite to the termination of
jurisdiction over an initial program site.
2. CSR 38-2-2--Definitions; except to the extent that the
definition of ``chemical treatment'' at CSR 38-2-2.20 would be
applied in the context of section CSR 38-2-12.2(e) to authorize bond
release for sites with discharges that require passive treatment to
meet discharge standards.
3. CSR Sec. 38-2-3.1(o)--Application information to the extent
that all permit applicants which maintain centralized ownership and
control files are also required to comply with all of the
informational provisions contained in CSR 38-2-3.1.
4. CSR Sec. 38-2-3.4--Maps.
5. CSR Sec. 38-2-3.6--Operation Plan.
6. CSR Sec. 38-2-3.7--Excess Spoil.
7. CSR Sec. 38-2-3.8--New and Existing Structures and Support
Facilities.
8. CSR Sec. 38-2-3.12--Subsidence Control Plan.
9. CSR Sec. 38-2-3.14--Removal of Abandoned Coal Waste Piles.
10. CSR Sec. 38-2-3.15--Approved Person.
11. CSR Sec. 38-2-3.16--Fish and Wildlife Resources.
12. CSR Sec. 38-2-3.25--Transfer, Assignment or Sale of Permit
Rights.
13. CSR Sec. 38-2-3.26--Ownership and Control Changes.
14. CSR Sec. 38-2-3.27(a)--Permit Renewals and Permit
Extensions.
15. CSR Sec. 38-2-3.28--Permit Revisions.
16. CSR Sec. 38-2-3.29--Incidental Boundary Revisions (IBRs).
17. CSR Sec. 38-2-30--Variances.
18. CSR Sec. 38-2-3.31(a)--Exemption for Government Financed
Highway or Other Construction.
19. CSR Sec. 38-2-3.32--Permit Findings.
20. CSR Sec. 38-2-3.33--Permit Conditions.
21. CSR Sec. 38-2-3.34--Improvidently Issued Permits.
22. CSR Sec. 38-2-4--Haulageways, Roads, and Access Roads:
22a. CSR Sec. 38-2-4.1(a)--Road Classification system;
22b. CSR Sec. 38-2-4.2--Plans and Specifications; except CSR 38-
2-4.2(b) is approved to the extent that the provisions pertain to
all roads, whether they are within or crossing a stream;
22c. CSR Sec. 38-2-4.3--Existing Haulageways or Access Roads;
22d. CSR Sec. 38-2-4.4--Infrequently Used Access Roads; except
CSR 38-2-4.4 is approved except to the extent that it exempts
infrequently used access roads from the requirements of subsection
4.9;
22e. CSR Sec. 38-2-4.5--Construction;
22f. CSR Sec. 38-2-4.6--Drainage Design;
22g. CSR Sec. 38-2-4.7--Performance Standards;
22h. CSR Sec. 38-2-4.8--Maintenance;
22i. CSR Sec. 38-2-4.9--Reclamation;
22j. CSR Sec. 38-2-4.10--Primary Roads;
22k. CSR Sec. 38-2-4.11--Support Facilities and Transportation
Facilities except to the extent that the provision does not exclude
facilities that are included within the definition of ``surface coal
mining operations'' at 30 CFR 700.5.
22l. CSR Sec. 38-2-4.12--Certification.
23. CSR Sec. 38-2-5.2--Intermittent or Perennial Streams.
24. CSR Sec. 38-2-5.4--Sediment Control.
25. CSR Sec. 38-2-5.5--Permanent Impoundments.
26. CSR Sec. 38-2-6--Blasting;
26a. CSR Sec. 38-2-6.3(b)--Public Notice of Blasting Operations;
26b. CSR Sec. 38-2-6.6--Blasting Control for Other Structures;
26c. CSR Sec. 38-2-6.8--Preblast Survey.
27. CSR Sec. 38-2-8.1--Protection of Fish and Wildlife and
Related Values.
28. CSR Sec. 38-2-9--Revegetation.
[[Page 6536]]
29. CSR Sec. 38-2-11.1--Insurance.
30. CSR Sec. 38-2-13--Notice of Intent to Prospect.
31. CSR Sec. 38-2-14.5--Hydrologic Balance except to the extent
that the proposed waiver at subsection (h) would not be implemented
in accordance with the definition of ``Replacement of water supply''
at 30 CFR 701.5.
32. CSR Sec. 38-2-14.8--Steep Slope Mining.
33. CSR Sec. 38-2-14.11--Inactive Status.
34. CSR Sec. 38-2-14.12--Variance From Approximate Original
Contour Requirements.
35. CSR Sec. 38-2-14.14--Disposal of Excess Spoil.
36. CSR Sec. 38-2-14.15--Contemporaneous Reclamation Standards.
37. CSR Sec. 38-2-14.17--Control of Fugitive Dust.
38. CSR Sec. 38-2-14.18--Utility Installations.
39. CSR Sec. 38-2-14.19--Disposal of Noncoal Waste is not
approved to the extent that windrowing would be allowed on the
downslope in steep slope areas.
40. CSR Sec. 38-2-15.2--Backfilling and Regrading; Underground
Mines.
41. CSR Sec. 38-2-16.2--Subsidence Control; Surface Owner
Protection.
42. CSR Sec. 38-2-17--Small Operator Assistance Program (SOAP).
43. CSR Sec. 38-2-18.3--Review of Decision Not to Inspect or
Enforce.
44. CSR Sec. 38-2-20.1--Inspection Frequencies.
45. CSR Sec. 38-2-20.2--Notices of Violations.
46. CSR Sec. 38-2-20.4--Show Cause Orders.
47. CSR Sec. 38-2-20.5--Civil Penalty Determinations.
48. CSR Sec. 38-2-20.6--Procedures for Assessing Civil
Penalties.
49. CSR Sec. 38-2-20.7--Assessment Rates.
50. CSR Sec. 38-2-22--Coal Refuse.
51. CSR Sec. 38-2C-4--Training of Blasters.
52. CSR Sec. 38-2C-5--Examination for Certification of Examiner/
Inspector and Certified Blaster.
53. CSR Sec. 38-2C-8.2--Refresher Training Course/Self-study
Course.
54. CSR Sec. 38-2C-10.1--Violations by a Certified Blaster.
55. CSR Sec. 38-2C-11.1--Penalties.
56. CSR Sec. 38-2D-4.4(b) Reclamation Objectives and Priorities.
57. CSR Sec. 38-2D-6.3(a) Acceptance of Gifts of Land.
58. CSR Sec. 38-2D-8.7(a) Grant Application Procedures.
(3) Exceptions.
(i) Sec. 22-3-13--Performance Standards is not approved to the
extent that subsection 13(e) applies to areas other than steep slope
areas as defined in Sec. 22-3-13(d).
(ii) Sec. 22B-1-4 through 12--Environmental Boards; General Policy
and Purpose: Language at Sec. 22B-1-7(d) which allows temporary relief
where the appellant demonstrates that the executed decision appealed
from will result in the appellant suffering an ``unjust hardship'' is
not approved; and language at Sec. 22B-1-7(h) which allows the Surface
Mining Board to consider economic feasibility of treating or
controlling discharges from surface coal mining operations in appeals
from decisions of an order, permit, or official action is not approved.
(iii) CSR Sec. 38-2-1.2(c)(1) concerning termination of
jurisdiction over an initial program site is approved except to the
extent that subsection (c)(1) does not require compliance with the
Federal initial program regulations at Subchapter B or to the West
Virginia permanent program as a prerequisite to the termination of
jurisdiction.
(iv) CSR Sec. 38-2-2.20 concerning the definition of ``chemical
treatment'' is not approved to the extent that the definition would be
applied in the context of section CSR 38-2-12.2(e) to authorize bond
release for sites with discharges that require passive treatment to
meet discharge standards.
(v) CSR Sec. 38-2-4.4 is not approved to the extent that it exempts
infrequently used access roads from the requirements of subsection 4.9.
(vi) CSR Sec. 38-2-4.11 is not approved to the extent that the
provision excludes facilities that are included within the definition
of ``surface coal mining operations'' at 30 CFR 700.5.
(vii) CSR Sec. 38-2-14.5(h) is not approved to the extent that the
proposed waiver at subsection (h) would not be implemented in
accordance with the definition of ``Replacement of water supply'' at 30
CFR 710.5.
(viii) CSR Sec. 38-2-14.19 is not approved to the extent that
windrowing would be allowed on the downslope in steep slope areas.
5. Section 948.16 is amended by removing and reserving paragraphs
(c), (f), (i), (j), (l), (n), (q), (s), (t), (v), (w), (x), (aa), (cc),
(hh), (ii), (jj), (kk), (mm), (nn), (pp), (qq), (rr), (ss), (uu), (vv),
and (yy) through (iii); revising paragraph (xx); and adding paragraphs
(mmm) through (uuu), reading as follows:
Sec. 948.16 Required regulatory program amendments.
* * * * *
(xx) By August 1, 1996, West Virginia shall submit either a
proposed amendment or a description of an amendment to be proposed,
together with a timetable for adoption, to revise subsection CSR 38-2-
14.8(a) to specify design requirements for constructed outcrop barriers
that will be the equivalent of natural barriers and will assure the
protection of water quality and insure the long-term stability of the
backfill.
* * * * *
(mmm) By August 1, 1996, West Virginia must submit either a
proposed amendment or a description of an amendment to be proposed,
together with a timetable for adoption, to revise Sec. 22-3-13(e) to
limit the authorization for a variance from approximate original
contour to industrial, commercial, residential, or public alternative
postmining land use, in accordance with section 515(e)(2) of SMCRA.
(nnn) By August 1, 1996, West Virginia must submit either a
proposed amendment or a description of an amendment to be proposed,
together with a timetable for adoption, to revise Sec. 22B-1-7(d) to be
consistent with SMCRA sections 514(d) and 525(c).
(ooo) By August 1, 1996, West Virginia must submit either a
proposed amendment or a description of an amendment to be proposed,
together with a timetable for adoption, to revise Sec. 22B-1-7(h) to be
no less stringent than SMCRA section 515(b)(10) and no less effective
than the Federal regulations at 30 CFR 816.42, by requiring discharges
to be controlled or treated without regard to economic feasibility.
(ppp) By August 1, 1996, West Virginia must submit either a
proposed amendment or a description of an amendment to be proposed,
together with a timetable for adoption, to revise CSR Sec. 38-2-
1.2(c)(1) to require compliance with the Federal initial program
regulations at Subchapter B or the West Virginia permanent program
regulations as a prerequisite to the termination of jurisdiction over
an initial program site.
(qqq) By August 1, 1996, West Virginia must submit either a
proposed amendment or a description of an amendment to be proposed,
together with a timetable for adoption, to revise CSR Sec. 38-2-2.20,
or otherwise amend the West Virginia program to clarify that bond may
not be released where passive treatment systems are used to achieve
compliance with applicable effluent limitations.
(rrr) By August 1, 1996, West Virginia must submit either a
proposed amendment or a description of an amendment to be proposed,
together with a timetable for adoption, to revise CSR Sec. 38-2-4.4 to
require that all infrequently used access roads comply with CSR 38-2-
4.9.
(sss) By August 1, 1996, West Virginia must submit either a
proposed amendment or a description of an amendment to be proposed,
together with a timetable for adoption, to revise CSR Sec. 38-2-14.5(h)
and Sec. 22-3-24(b) to clarify that the replacement of water supply can
only be waived under the conditions set forth in the definition of
``Replacement of water supply,'' paragraph (b), at 30 CFR 701.5.
[[Page 6537]]
(ttt) By August 1, 1996, West Virginia must submit either a
proposed amendment or a description of an amendment to be proposed,
together with a timetable for adoption, to revise CSR Sec. 38-2-
14.19(d) to clarify that windrowing will not be allowed on the
downslope in steep slope areas.
(uuu) By August 1, 1996, West Virginia must submit either a
proposed amendment or a description of an amendment to be proposed,
together with a timetable for adoption, to revise subsection 22.4(g) to
require compliance with a PMP 6-hour standard, or demonstrate how the
State would implement the PMP 24-hour standard at CSR 38-2-22.4(g).
6. Section 948.26 is amended by removing the text and reserving the
heading as follows:
Sec. 948.26 Required abandoned mine land reclamation program/plan
amendments. [Reserved]
[FR Doc. 96-3413 Filed 2-20-96; 8:45 am]
BILLING CODE 4310-05-M
Complete official Federal Register PDF
FR Doc. 96-3262 Airworthiness Directives; Airbus Model A300-B2 and -B4 Series Airplanes Equipped with General Electric CF6-50 Series Engines or Pratt & Whitney JT9D-59A Engines
[Federal Register Volume 61, Number 35 (Wednesday, February 21, 1996)]
[Rules and Regulations]
[Pages 6503-6505]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-3262]
-----------------------------------------------------------------------
DEPARTMENT OF TRANSPORTATION
14 CFR Part 39
[Docket No. 95-NM-34-AD; Amendment 39-9517; AD 96-04-05]
Airworthiness Directives; Airbus Model A300-B2 and -B4 Series
Airplanes Equipped with General Electric CF6-50 Series Engines or Pratt
& Whitney JT9D-59A Engines
AGENCY: Federal Aviation Administration, DOT.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: This amendment adopts a new airworthiness directive (AD) that
is applicable to certain Airbus Model A300-B2 and -B4 series airplanes.
This amendment requires an inspection to detect discrepancies of a
certain thrust reverser control lever spring; an operational test to
verify the integrity of the flight inhibition circuit of the thrust
reverser system; and either the correction of discrepancies or
deactivation of the associated thrust reverser. It also provides for an
optional terminating action. This amendment is prompted by a report
that, due to broken and deformed thrust reverser control lever springs,
an uncommanded movement of the thrust reverser lever to the unlock
position and a ``reverser unlock'' amber warning occurred on one
airplane. The actions specified by this AD are intended to detect such
broken or deformed control lever springs before they can lead to
uncommanded deployment of a thrust reverser and subsequent reduced
controllability of the airplane.
DATES: Effective March 22, 1996.
The incorporation by reference of certain publications listed in
the regulations is approved by the Director of the Federal Register as
of March 22, 1996.
ADDRESSES: The service information referenced in this AD may be
obtained from Airbus Industrie, 1 Rond Point Maurice Bellonte, 31707
Blagnac Cedex, France. This information may be examined at the Federal
Aviation Administration (FAA), Transport Airplane Directorate, Rules
Docket, 1601 Lind Avenue, SW., Renton, Washington; or at the Office of
the Federal Register, 800 North Capitol Street NW., suite 700,
Washington, DC.
FOR FURTHER INFORMATION CONTACT: Charles Huber, Aerospace Engineer,
Standardization Branch, ANM-113, FAA, Transport Airplane Directorate,
1601 Lind Avenue, SW., Renton, Washington 98055-4056; telephone (206)
227-2589; fax (206) 227-1149.
SUPPLEMENTARY INFORMATION: A proposal to amend part 39 of the Federal
Aviation Regulations (14 CFR part 39) to include an airworthiness
directive (AD) that is applicable to certain Airbus Model A300-B2 and -
B4 series airplanes was published in the Federal Register on April 3,
1995 (60 FR 16813). That action proposed to require a mechanical
integrity inspection to detect discrepancies of the thrust reverser
control lever spring having part number (P/N) A2791294520000, and an
operational test to verify the integrity of the flight inhibition
circuit of the thrust reverser system. It also requires the correction
of discrepancies or deactivation of the associated thrust reverser.
Interested persons have been afforded an opportunity to participate
in the making of this amendment. Due consideration has been given to
the comments received.
One commenter supports the proposed rule.
One commenter notes that the Description section of the preamble to
the notice states that ``* * * uncommanded movement of the thrust
reverser lever to the unlock position and a `reverser unlock' amber
warning occurred.'' The commenter suggests, to be consistent with the
current industry definition, a more accurate description of what caused
the unsafe condition is ``inadvertently commanded deployment [of the
thrust reverser].'' The FAA does not concur. The FAA has reviewed the
relevant data available, and finds no basis to support the commenter's
suggestion that the thrust reverser was ``commanded'' to deploy. The
FAA finds that the pilot did not command the thrust reverser to deploy,
nor did the pilot inadvertently deploy the thrust reverser.
Additionally, this commenter requests clarification of certain
statements made in the Discussion section of the preamble to the
notice. The commenter asks whether the reported incident occurred when
the airplane was on the ground or in flight. The FAA concurs that some
clarification is necessary. The incident occurred on the ground during
a training flight where a simulated engine-out condition was performed.
Since the Discussion section is not restated in this final rule, no
change to the final rule is necessary as a result of this
clarification.
The same commenter requests that the proposed rule be revised to
require repetitive inspections of the thrust reverser control lever
spring, and a final corrective action. The commenter asserts that,
since the notice indicates that the unsafe condition is ``* * * likely
to develop'' on affected airplanes, it would seem reasonable to require
replacement of the spring, regardless of the condition of the spring at
the initial inspection. Additionally, until the spring is replaced, it
should be repetitively inspected, since it is not clear if the root
cause of the problem is a design or assembly defect, or if it is time-
related. The FAA concurs partially.
[[Page 6504]]
Since issuance of the notice, Airbus has issued Service Bulletin A300-
78-0015, dated May 17, 1995, which describes procedures for replacement
of the left and right control levers of the thrust reverser with a new
control lever equipped with a new spring. The Direction Generale de
l'Aviation Civile (DGAC), which is the airworthiness authority for
France, approved this service bulletin. The FAA finds that the
replacement specified in that service bulletin may be provided as an
optional terminating action for the requirements of this final rule.
Therefore, the FAA has added a new paragraph (b) to the final rule to
provide for this option.
Additionally, the FAA is considering additional rulemaking to
require repetitive inspections of the thrust reverser lever spring, as
well as to mandate the eventual replacement of the thrust reverser
control lever with the new control lever. However, the planned
compliance time for this repetitive inspection and replacement is
sufficiently long so that notice and public comment will be
practicable.
After careful review of the available data, including the comments
noted above, the FAA has determined that air safety and the public
interest require the adoption of the rule with the changes previously
described. The FAA has determined that these changes will neither
increase the economic burden on any operator nor increase the scope of
the AD.
The FAA estimates that 21 airplanes of U.S. registry will be
affected by this AD, that it will take approximately 6 work hours per
airplane to accomplish the required actions, and that the average labor
rate is $60 per work hour. Required parts will cost approximately $55
per airplane. Based on these figures, the cost impact of the AD on U.S.
operators is estimated to be $8,715, or $415 per airplane.
The cost impact figure discussed above is based on assumptions that
no operator has yet accomplished any of the requirements of this AD
action, and that no operator would accomplish those actions in the
future if this AD were not adopted.
The regulations adopted herein will not have substantial direct
effects on the States, on the relationship between the national
government and the States, or on the distribution of power and
responsibilities among the various levels of government. Therefore, in
accordance with Executive Order 12612, it is determined that this final
rule does not have sufficient federalism implications to warrant the
preparation of a Federalism Assessment.
For the reasons discussed above, I certify that this action (1) is
not a ``significant regulatory action'' under Executive Order 12866;
(2) is not a ``significant rule'' under DOT Regulatory Policies and
Procedures (44 FR 11034, February 26, 1979); and (3) will not have a
significant economic impact, positive or negative, on a substantial
number of small entities under the criteria of the Regulatory
Flexibility Act. A final evaluation has been prepared for this action
and it is contained in the Rules Docket. A copy of it may be obtained
from the Rules Docket at the location provided under the caption
ADDRESSES.
List of Subjects in 14 CFR Part 39
Air transportation, Aircraft, Aviation safety, Incorporation by
reference, Safety.
Adoption of the Amendment
Accordingly, pursuant to the authority delegated to me by the
Administrator, the Federal Aviation Administration amends part 39 of
the Federal Aviation Regulations (14 CFR part 39) as follows:
PART 39--AIRWORTHINESS DIRECTIVES
1. The authority citation for part 39 continues to read as follows:
Authority: 49 U.S.C. 106(g), 40113, 44701.
Sec. 39.13 [Amended]
2. Section 39.13 is amended by adding the following new
airworthiness directive:
96-04-05 Airbus Industrie: Amendment 39-9517. Docket 95-NM-34-AD.
Applicability: Model A300-B2 and B-4 series airplanes, equipped
with General Electric CF6-50 series engines or Pratt & Whitney JT9D-
59A engines; certificated in any category.
Note 1: This AD applies to each airplane identified in the
preceding applicability provision, regardless of whether it has been
otherwise modified, altered, or repaired in the area subject to the
requirements of this AD. For airplanes that have been modified,
altered, or repaired so that the performance of the requirements of
this AD is affected, the owner/operator must request approval for an
alternative method of compliance in accordance with paragraph (c) of
this AD. The request should include an assessment of the effect of
the modification, alteration, or repair on the unsafe condition
addressed by this AD; and, if the unsafe condition has not been
eliminated, the request should include specific proposed actions to
address it.
Compliance: Required as indicated, unless accomplished
previously.
To ensure the detection of broken or deformed thrust reverser
control lever springs that could lead to uncommanded deployment of a
thrust reverser and subsequent reduced controllability of the
airplane, accomplish the following:
(a) Within 500 flight hours after the effective date of this AD,
perform a mechanical integrity inspection to detect discrepancies of
the thrust reverser control lever spring having part number (P/N)
A2791294520000, and an operational test to verify the integrity of
the flight inhibition circuit of the thrust reverser system, in
accordance with Airbus All Operators Telex AOT 78-03, Revision 1,
dated July 20, 1994.
(1) If no discrepancies are detected, no further action is
required by this AD.
(2) If the control lever spring is found broken or out of
tolerance, prior to further flight, replace it with a new control
lever spring or deactivate the associated thrust reverser in
accordance with the AOT.
(3) If the flight inhibition circuit of the thrust reverser
system fails the operational test, prior to further flight,
determine the origin of the malfunction, in accordance with the AOT.
(i) If the origin of the malfunction is identified, prior to
further flight, repair the flight inhibition circuit in accordance
with the AOT.
(ii) If the origin of the malfunction is not identified, prior
to further flight, replace the relay having P/N 125GB or 124GB, and
repeat the operational test, in accordance with the AOT. If the
malfunction is still present, prior to further flight, inspect and
repair the wiring in accordance with the AOT. If the malfunction is
still present following the inspection and repair, prior to further
flight, deactivate the associated thrust reverser in accordance with
the AOT.
(b) Replacement of the left and right control levers of the
thrust reverser with a new control lever equipped with a new spring,
in accordance with Airbus Service Bulletin A300-78-0015, dated May
17, 1995, constitutes terminating action for the requirements of
this AD.
(c) An alternative method of compliance or adjustment of the
compliance time that provides an acceptable level of safety may be
used if approved by the Manager, Standardization Branch, ANM-113,
FAA, Transport Airplane Directorate. Operators shall submit their
requests through an appropriate FAA Principal Maintenance Inspector,
who may add comments and then send it to the Manager,
Standardization Branch, ANM-113.
Note 2: Information concerning the existence of approved
alternative methods of compliance with this AD, if any, may be
obtained from the Standardization Branch, ANM-113.
(d) Special flight permits may be issued in accordance with
sections 21.197 and 21.199 of the Federal Aviation Regulations (14
CFR 21.197 and 21.199) to operate the airplane to a location where
the requirements of this AD can be accomplished.
(e) The actions shall be done in accordance with Airbus All
Operators Telex AOT 78-03, Revision 1, dated July 20, 1994. This
incorporation by reference was approved by the Director of the
Federal Register in accordance with 5 U.S.C. 552(a) and 1 CFR part
51. Copies may be obtained from Airbus
[[Page 6505]]
Industrie, 1 Rond Point Maurice Bellonte, 31707 Blagnac Cedex, France.
Copies may be inspected at the FAA, Transport Airplane Directorate,
1601 Lind Avenue, SW., Renton, Washington; or at the Office of the
Federal Register, 800 North Capitol Street, NW., suite 700,
Washington, DC.
(f) This amendment becomes effective on March 22, 1996.
Issued in Renton, Washington, on February 8, 1996.
Darrell M. Pederson,
Acting Manager, Transport Airplane Directorate, Aircraft Certification
Service.
[FR Doc. 96-3262 Filed 2-20-96; 8:45 am]
BILLING CODE 4910-13-P
Complete official Federal Register PDF
FR Doc. 96-3150 Airworthiness Directives; Boeing Model 737-200 and -200C Airplanes Equipped With dB Partners Hush Kits Installed in Accordance With Supplemental Type Certificate (STC) SA5730NM
[Federal Register Volume 61, Number 35 (Wednesday, February 21, 1996)]
[Rules and Regulations]
[Pages 6501-6503]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-3150]
-----------------------------------------------------------------------
DEPARTMENT OF TRANSPORTATION
14 CFR Part 39
[Docket No. 95-NM-155-AD; Amendment 39-9514; AD 96-04-03]
Airworthiness Directives; Boeing Model 737-200 and -200C
Airplanes Equipped With dB Partners Hush Kits Installed in Accordance
With Supplemental Type Certificate (STC) SA5730NM
AGENCY: Federal Aviation Administration, DOT.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: This amendment supersedes an existing airworthiness directive
(AD), applicable to certain Boeing Model 737-200 and -200C airplanes,
that currently requires installation of fail-safe straps onto the
engine inlet attach ring of the nose cowl. This amendment requires
repetitive inspections to detect cracking of the attach ring of the
nose cowl, and replacement of cracked attach rings. Replacement with an
improved attach ring, if accomplished, would terminate the requirement
to inspect the attach ring repetitively. This amendment is prompted by
the development of an improved attach ring that eliminates the need for
repetitive inspections. The actions specified by this AD are intended
to prevent cracking of the attach ring of the nose cowl, which could
result in separation of the nose cowl from the engine following failure
of a turbine blade.
DATES: Effective March 22, 1996.
The incorporation by reference of certain publications listed in
the regulations is approved by the Director of the Federal Register as
of March 22, 1996.
The incorporation by reference of Nordam Service Bulletin SB 71-03,
dated March 17, 1995, as listed in the regulations, was approved
previously by the Director of the Federal Register as of May 2, 1995
(60 FR 19157, April 17, 1995).
ADDRESSES: The service information referenced in this AD may be
obtained from The Nordam Group, 624 East 4th Street, Tulsa, Oklahoma
74120. This information may be examined at the Federal Aviation
Administration (FAA), Transport Airplane Directorate, Rules Docket,
1601 Lind Avenue SW., Renton, Washington; or at the Office of the
Federal Register, 800 North Capitol Street NW., suite 700, Washington,
DC.
FOR FURTHER INFORMATION CONTACT: Thomas Rodriguez, Aerospace Engineer,
Airframe Branch, ANM-120S, FAA, Seattle Aircraft Certification Office,
1601 Lind Avenue SW., Renton, Washington; telephone (206) 227-2779; fax
(206) 227-1181.
SUPPLEMENTARY INFORMATION: A proposal to amend part 39 of the Federal
Aviation Regulations (14 CFR part 39) by superseding AD 95-08-08,
amendment 39-9197 (60 FR 19157, April 17, 1995), which is applicable to
certain Boeing Model 737-200 and -200C airplanes, was published in the
Federal Register on November 22, 1995 (60 FR 57840). The action
proposed to supersede AD 95-08-08 to continue to require installation
of fail-safe straps onto the engine inlet attach ring of the nose cowl.
The action also proposed to require repetitive inspections to detect
cracking of the attach ring of the nose cowl, and replacement of
cracked attach rings. That action also proposed to provide an optional
terminating action
[[Page 6502]]
(installation of an improved attach ring) for the repetitive
inspections.
Interested persons have been afforded an opportunity to participate
in the making of this amendment. Due consideration has been given to
the two comments received.
Both commenters support the proposed rule.
After careful review of the available data, including the comments
noted above, the FAA has determined that air safety and the public
interest require the adoption of the rule as proposed.
There are approximately 46 Model 737 series airplanes of the
affected design in the worldwide fleet. The FAA estimates that 1
airplane of U.S. registry will be affected by this AD.
The replacement action that is currently required by AD 95-08-08
takes approximately 8 work hours per airplane to accomplish, at an
average labor rate of $60 per work hour. Required parts will be
provided at no cost to the operator. Based on these figures, the cost
impact of the currently required actions on the sole U.S. operator is
estimated to be $480 per airplane.
The inspection that is required by this new AD will take
approximately 10 work hours per airplane to accomplish, at an average
labor rate of $60 per work hour. Based on these figures, the cost
impact on U.S. operators of the new requirements of this AD is
estimated to be $600 per airplane, per inspection cycle.
The cost impact figures discussed above are based on assumptions
that no operator has yet accomplished any of the requirements of this
AD action, and that no operator would accomplish those actions in the
future if this AD were not adopted.
The regulations adopted herein will not have substantial direct
effects on the States, on the relationship between the national
government and the States, or on the distribution of power and
responsibilities among the various levels of government. Therefore, in
accordance with Executive Order 12612, it is determined that this final
rule does not have sufficient federalism implications to warrant the
preparation of a Federalism Assessment.
For the reasons discussed above, I certify that this action (1) is
not a ``significant regulatory action'' under Executive Order 12866;
(2) is not a ``significant rule'' under DOT Regulatory Policies and
Procedures (44 FR 11034, February 26, 1979); and (3) will not have a
significant economic impact, positive or negative, on a substantial
number of small entities under the criteria of the Regulatory
Flexibility Act. A final evaluation has been prepared for this action
and it is contained in the Rules Docket. A copy of it may be obtained
from the Rules Docket at the location provided under the caption
ADDRESSES.
List of Subjects in 14 CFR Part 39
Air transportation, Aircraft, Aviation safety, Incorporation by
reference, Safety.
Adoption of the Amendment
Accordingly, pursuant to the authority delegated to me by the
Administrator, the Federal Aviation Administration amends part 39 of
the Federal Aviation Regulations (14 CFR part 39) as follows:
PART 39--AIRWORTHINESS DIRECTIVES
1. The authority citation for part 39 continues to read as follows:
Authority: 49 U.S.C. 106(g), 40113, 44701.
Sec. 39.13 [Amended]
2. Section 39.13 is amended by removing amendment 39-9197 (60 FR
19157, April 17, 1995), and by adding a new airworthiness directive
(AD), amendment 39-9514, to read as follows:
96-03-04 Boeing: Amendment 39-9514. Docket 95-NM-155-AD. Supersedes
AD 95-08-08, Amendment 39-9197.
Applicability: Model 737-200 and -200C airplanes equipped with
dB Partners Hush Kit having attach ring, part number 65ND-54301-1,
installed in accordance with Supplemental Type Certificate (STC)
SA5730NM, certificated in any category.
Note 1: This AD applies to each airplane identified in the
preceding applicability provision, regardless of whether it has been
modified, altered, or repaired in the area subject to the
requirements of this AD. For airplanes that have been modified,
altered, or repaired so that the performance of the requirements of
this AD is affected, the owner/operator must request approval for an
alternative method of compliance in accordance with paragraph (e) of
this AD. The request should include an assessment of the effect of
the modification, alteration, or repair on the unsafe condition
addressed by this AD; and, if the unsafe condition has not been
eliminated, the request should include specific proposed actions to
address it.
Compliance: Required as indicated, unless accomplished
previously.
To prevent separation of the nose cowl from the engine following
turbine blade failure, accomplish the following:
(a) Within 30 days after May 2, 1995 (the effective date of AD
95-08-08, amendment 39-9197), install fail-safe straps onto the
attach ring, part number (P/N) 65ND-54301-1, of the nose cowl in
accordance with Nordam Service Bulletin SB 71-03, dated March 17,
1995, or Revision 1, dated June 16, 1995.
(b) As of the effective date of this AD: Prior to further flight
following each incident of turbine blade failure, perform a detailed
visual inspection to detect cracking of the attach ring of the nose
cowl. Fail-safe straps must be removed to perform this inspection.
(1) If no cracking is detected, prior to further flight,
reinstall the fail-safe straps in accordance with Nordam Service
Bulletin SB 71-03, dated March 17, 1995, or Revision 1 dated June
16, 1995.
(2) If any cracking is detected, prior to further flight,
accomplish the requirements of either paragraph (b)(2)(i) or
(b)(2)(ii) of this AD.
(i) Replace the cracked attach ring with an attach ring having
P/N 65ND-54301-1 in accordance with STC SA5730NM, and reinstall the
fail-safe strap in accordance with Nordam Service Bulletin SB 71-03,
dated March 17, 1995, or Revision 1, dated June 16, 1995. Repeat the
visual inspection of the attach ring prior to further flight
following each incident of turbine blade failure. Or
(ii) Replace the cracked attach ring with an attach ring having
P/N 65ND-54301-5 in accordance with Nordam Service Bulletin SB 71-
04, Revision 1, dated June 16, 1995. After this replacement is
accomplished, the inspections required by this paragraph may be
terminated.
(c) Installation of an attach ring having P/N 65ND-54301-5
constitutes terminating action for the repetitive inspections
required by paragraph (b) of this AD.
(d) As of May 2, 1995 (the effective date of AD 95-08-08), fail-
safe straps must be installed onto the attach ring, P/N 65ND-54301-
1, of the nose cowl in accordance with Nordam Service Bulletin SB
71-03, dated March 17, 1995, or Revision 1, dated June 16, 1995,
prior to installation of STC SA5730NM on any airplane.
(e) An alternative method of compliance or adjustment of the
compliance time that provides an acceptable level of safety may be
used if approved by the Manager, Seattle Aircraft Certification
Office (ACO), FAA, Transport Airplane Directorate. Operators shall
submit their requests through an appropriate FAA Principal
Maintenance Inspector, who may add comments and then send it to the
Manager, Seattle ACO.
Note 2: Information concerning the existence of approved
alternative methods of compliance with this AD, if any, may be
obtained from the Seattle ACO.
(f) Special flight permits may be issued in accordance with
sections 21.197 and 21.199 of the Federal Aviation Regulations (14
CFR 21.197 and 21.199) to operate the airplane to a location where
the requirements of this AD can be accomplished.
(g) The actions shall be done in accordance with the following
Nordam service bulletins, as applicable, which contain the specified
effective pages:
[[Page 6503]]
----------------------------------------------------------------------------------------------------------------
Revision level shown on
Service bulletin reference and date Page No. page Date shown on page
----------------------------------------------------------------------------------------------------------------
SB 71-03, March 17, 1995............... 1-12 Original................. March 17, 1995.
SB 71-03, Revision 1, June 16, 1995.... 1-11 1........................ June 16, 1995.
12 Original................. March 17, 1995.
SB 71-04, Revision 1, June 16, 1995.... 1, 2 Original................. May 22, 1995.
3-18 1........................ June 16, 1995.
----------------------------------------------------------------------------------------------------------------
The incorporation by reference of Nordam Service Bulletin SB 71-
03, dated March 17, 1995, was approved previously by the Director of
the Federal Register in accordance with 5 U.S.C. 552(a) and 1 CFR
part 51 as of May 2, 1995 (60 FR 19157, April 17, 1995). The
incorporation by reference of the remainder of the service documents
listed above is approved approved by the Director of the Federal
Register in accordance with 5 U.S.C. 552(a) and 1 CFR part 51.
Copies may be obtained from The Nordam Group, 624 East 4th Street,
Tulsa, Oklahoma 74120. Copies may be inspected at the FAA, Transport
Airplane Directorate, 1601 Lind Avenue, SW., Renton, Washington; or
at the Office of the Federal Register, 800 North Capitol Street,
NW., suite 700, Washington, DC.
(h) This amendment becomes effective on March 22, 1996.
Issued in Renton, Washington, on February 7, 1996.
Darrell M. Pederson,
Acting Manager, Transport Airplane Directorate, Aircraft Certification
Service.
[FR Doc. 96-3150 Filed 2-20-96; 8:45 am]
BILLING CODE 4910-13-P
Complete official Federal Register PDF
FR Doc. 96-2869 Airworthiness Directives; Boeing Model 747-400 Series Airplanes
[Federal Register Volume 61, Number 35 (Wednesday, February 21, 1996)]
[Rules and Regulations]
[Pages 6500-6501]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-2869]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF TRANSPORTATION
Federal Aviation Administration
14 CFR Part 39
[Docket No. 95-NM-53-AD; Amendment 39-9511; AD 96-03-14]
Airworthiness Directives; Boeing Model 747-400 Series Airplanes
AGENCY: Federal Aviation Administration, DOT.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: This amendment supersedes an existing airworthiness directive
(AD), applicable to certain Boeing Model 747-400 series airplanes, that
currently requires replacement of electrical wiring to the fuel shutoff
valve for each engine. This amendment requires replacement of the fuel
shutoff valve wire and sleeve with a wire in two non-metallic sleeves
in the conduit in the struts of each engine. This amendment is prompted
by reports of additional occurrences of chafing and shorting of the
wiring of the engine fuel shutoff valves. The actions specified by this
AD are intended to prevent such chafing and shorting, which could
result in the pilot's inability to shut off the supply of fuel in the
event of an engine fire.
DATES: Effective March 22, 1996.
The incorporation by reference of certain publications listed in
the regulations is approved by the Director of the Federal Register as
of March 22, 1996.
ADDRESSES: The service information referenced in this AD may be
obtained from Boeing Commercial Airplane Group, P.O. Box 3707, Seattle,
Washington 98124-2207. This information may be examined at the Federal
Aviation Administration (FAA), Transport Airplane Directorate, Rules
Docket, 1601 Lind Avenue SW., Renton, Washington; or at the Office of
the Federal Register, 800 North Capitol Street NW., suite 700,
Washington, DC.
FOR FURTHER INFORMATION CONTACT: Stephen Oshiro, Aerospace Engineer,
Systems and Equipment Branch, ANM-130S, FAA, Transport Airplane
Directorate, 1601 Lind Avenue, SW., Renton, Washington 98055-4056;
telephone (206) 227-2793; fax (206) 227-1181.
SUPPLEMENTARY INFORMATION: A proposal to amend part 39 of the Federal
Aviation Regulations (14 CFR part 39) by superseding AD 89-14-04,
amendment 39-6246 (54 FR 27157, June 28, 1989), which is applicable to
certain Boeing Model 747-400 series airplanes, was published in the
Federal Register on September 7, 1995 (60 FR 46542). The action
proposed to supersede AD 89-14-04 to require replacement of the wire
and sleeve with a single wire in two non-metallic sleeves in the
conduit in the struts of each engine.
Interested persons have been afforded an opportunity to participate
in the making of this amendment. Due consideration has been given to
the comments received.
One commenter supports the proposed rule.
Several commenters request that the compliance time for
accomplishment of the replacement be extended from the proposed 12
months. Two of these commenters request an extension that will allow
the replacement to be accomplished during a regularly scheduled ``C''
check (15 to 18 months), when the airplanes will be brought to a main
base for an extended hold. These two commenters state that, in order to
accomplish the replacement with the proposed compliance time, they
would have to special schedule their fleet of airplanes, which would
entail considerable additional expense. Another commenter states that
it is currently accomplishing the modification required by AD 95-13-05,
amendment 39-9285 (60 FR 33333, June 28, 1995), which includes a wiring
modification that is equivalent to that proposed in the notice. This
commenter further states that it will complete that modification in
approximately four years; therefore, compliance with the proposed
wiring replacement should be extended accordingly.
The FAA does not concur. In developing an appropriate time for this
action, the FAA considered not only the degree of urgency associated
with addressing the subject unsafe condition, but the availability of
required parts and the practical aspects of accomplishing the required
replacement during affected operators' scheduled maintenance visits. In
addition, the FAA has received reports that the wire chafing condition
led to short circuits on airplanes that had accumulated 12,000 to
18,310 total flight hours after the incorporation of the modification
required by AD 89-14-04. In light of this, the FAA has determined that
the accumulated flight hours of some of the affected airplanes may be
close to this range at the end of the 12 month compliance time. The FAA
has also determined that a compliance time of 4 years for incorporation
of the modification, as required by AD 95-13-05, is unacceptable. Such
a compliance time would not address the subject unsafe condition in a
timely manner. However, under the provisions of paragraph (b) of the
final rule, the FAA may approve request for adjustments to the
compliance time if data are presented to justify such an adjustment.
After careful review of the available data, including the comments
noted above, the FAA has determined that air safety and the public
interest require the adoption of the rule as proposed.
There are approximately 311 Model 747-400 series airplanes of the
affected design in the worldwide fleet. The FAA estimates that 38
airplanes of U.S. registry will be affected by this AD, that it will
take approximately 80 work hours per airplane to accomplish the
required action, at that the average labor rate of $60 per work hour.
Required parts will cost approximately $673 per airplane. Based on
these figures, the cost impact on U.S. operators of the new
requirements of this AD is estimated to be $207,974, or $5,473 per
airplane.
The cost impact figures discussed above are based on assumptions
that no operator has yet accomplished any of the requirements of this
AD action, and that no operator would accomplish those actions in the
future if this AD were not adopted.
The regulations adopted herein will not have substantial direct
effects on the States, on the relationship between the national
government and the States, or on the distribution of power and
responsibilities among the various levels of government. Therefore, in
accordance with Executive Order 12612, it is determined that this final
rule does not have sufficient federalism implications to warrant the
preparation of a Federalism Assessment.
For the reasons discussed above, I certify that this action (1) is
not a ``significant regulatory action'' under Executive Order 12866;
(2) is not a ``significant rule'' under DOT Regulatory Policies and
Procedures (44 FR 11034, February 26, 1979); and (3) will not have a
significant economic impact, positive or negative, on a substantial
number of small entities under the criteria of the Regulatory
Flexibility Act. A final evaluation has been prepared for this action
and it is contained in the Rules Docket. A copy of it may be obtained
from the Rules
[[Page 6501]]
Docket at the location provided under the caption ADDRESSES.
List of Subjects in 14 CFR Part 39
Air transportation, Aircraft, Aviation safety, Incorporation by
reference, Safety.
Adoption of the Amendment
Accordingly, pursuant to the authority delegated to me by the
Administrator, the Federal Aviation Administration amends part 39 of
the Federal Aviation Regulations (14 CFR part 39) as follows:
PART 39--AIRWORTHINESS DIRECTIVES
1. The authority citation for part 39 continues to read as follows:
Authority: 49 U.S.C. 106(g), 40113, 44701.
Sec. 39.13 [Amended]
2. Section 39.13 is amended by removing amendment 39-6246 (54 FR
27157, June 28, 1989), and by adding a new airworthiness directive
(AD), amendment 39-9511, to read as follows:
96-03-14 Boeing: Amendment 39-9511. Docket 95-NM-53-AD. Supersedes
AD 89-14-04, Amendment 39-6246.
Applicability: Model 747-400 series airplanes; line positions
696 through 1046 inclusive, except airplane variable numbers RT502
and RU032 (airplane serial numbers 24062 and 25780, respectively);
certificated in any category.
Note 1: This AD applies to each airplane identified in the
preceding applicability provision, regardless of whether it has been
modified, altered, or repaired in the area subject to the
requirements of this AD. For airplanes that have been modified,
altered, or repaired so that the performance of the requirements of
this AD is affected, the owner/operator must request approval for an
alternative method of compliance in accordance with paragraph (b) of
this AD. The request should include an assessment of the effect of
the modification, alteration, or repair on the unsafe condition
addressed by this AD; and, if the unsafe condition has not been
eliminated, the request should include specific proposed actions to
address it.
Compliance: Required as indicated, unless accomplished
previously.
To prevent the inability to shut off the supply of fuel in the
event of an engine fire, accomplish the following:
(a) Within 12 months after the effective date of this AD,
replace the fuel shutoff valve wire and sleeve with a wire in two
non-metallic sleeves in the conduit in the struts of each engine, in
accordance with Boeing Alert Service Bulletin 747-28A2186, dated
January 19, 1995.
Note 2: Replacements accomplished prior to the effective date of
this amendment in accordance with Boeing Alert Service Bulletin 747-
54A2157, dated January 12, 1995, or Revision 1, dated August 3,
1995; or Boeing Alert Service Bulletin 747-54A2156, dated December
15, 1994, or Revision 1, dated July 20, 1995; are considered
acceptable for compliance with the replacements specified in this
amendment.
(b) An alternative method of compliance or adjustment of the
compliance time that provides an acceptable level of safety may be
used if approved by the Manager, Seattle Aircraft Certification
Office (ACO), FAA, Transport Airplane Directorate. Operators shall
submit their requests through an appropriate FAA Principal
Maintenance Inspector, who may add comments and then send it to the
Manager, Seattle ACO.
Note 3: Information concerning the existence of approved
alternative methods of compliance with this AD, if any, may be
obtained from the Seattle ACO.
(c) Special flight permits may be issued in accordance with
sections 21.197 and 21.199 of the Federal Aviation Regulations (14
CFR 21.197 and 21.199) to operate the airplane to a location where
the requirements of this AD can be accomplished.
(d) The replacement shall be done in accordance with Boeing
Alert Service Bulletin 747-28A2186, dated January 19, 1995. This
incorporation by reference was approved by the Director of the
Federal Register in accordance with 5 U.S.C. 552(a) and 1 CFR part
51. Copies may be obtained from Boeing Commercial Airplane Group,
P.O. Box 3707, Seattle, Washington 98124-2207. Copies may be
inspected at the FAA, Transport Airplane Directorate, 1601 Lind
Avenue, SW., Renton, Washington; or at the Office of the Federal
Register, 800 North Capitol Street, NW., suite 700, Washington, DC.
(e) This amendment becomes effective on March 22, 1996.
Issued in Renton, Washington, on February 5, 1996.
Darrell M. Pederson,
Acting Manager, Transport Airplane Directorate, Aircraft Certification
Service.
[FR Doc. 96-2869 Filed 2-20-96; 8:45 am]
BILLING CODE 4910-13-P
Continue your research in ChatGPT or Claude
Connect Omnilex to search the legal corpus from your AI assistant.