issue-1996-02-29•Federal Register final rules — 1996-02-29
Federal Register final rules — 1996-02-29
issue-1996-02-29Federal Register final rules — 1996-02-29Regulation
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FR Doc. 96-4706 National Emission Standards for Hazardous Air Pollutants for Source Categories: Gasoline Distribution (Stage I)
[Federal Register Volume 61, Number 41 (Thursday, February 29, 1996)]
[Rules and Regulations]
[Pages 7718-7724]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-4706]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 63
[AD-FRL-5432-3]
National Emission Standards for Hazardous Air Pollutants for
Source Categories: Gasoline Distribution (Stage I)
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule amendments.
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SUMMARY: This action amends the ``National Emission Standards for
Hazardous Air Pollutants for Source Categories: Gasoline Distribution
(Stage I)'' (the ``Gasoline Distribution NESHAP''). These final
amendments extend the initial compliance date for the equipment leak
provisions applicable to existing sources to no later than December 15,
1997, and amend the date by which an existing facility must provide an
initial notification to December 16, 1996 or 1 year after a facility
becomes subject to the Gasoline Distribution NESHAP, whichever is
later.
DATES: Effective Date. February 29, 1996.
Judicial Review. Under section 307(b)(1) of the Clean Air Act
(Act), judicial review of NESHAP is available only by filing a petition
for review in the U.S. Court of Appeals for the District of Columbia
Circuit within 60 days of today's publication of these final
amendments. Under section 307(b)(2) of the Act, the requirements that
are the subject of this document may not be challenged later in civil
or criminal proceedings brought by the EPA to enforce these
requirements.
ADDRESSES: Docket. Docket No. A-92-38, Categories VI Reconsideration
and VII Amendments, containing
[[Page 7719]]
information considered by the EPA in developing the final amendments,
is available for public inspection and copying between 8 a.m. and 5:30
p.m., Monday through Friday, except Federal holidays, at the EPA's Air
and Radiation Docket and Information Center, room M1500, U.S.
Environmental Protection Agency, 401 M Street SW., Washington, DC
20460; telephone (202) 260-7548. A reasonable fee may be charged for
copying. This docket also contains information considered by the EPA in
proposing and promulgating the Gasoline Distribution NESHAP.
An electronic version of these final amendments and the proposal
are available for download from the EPA Technology Transfer Network
(TTN), a network of electronic bulletin boards developed and operated
by the Office of Air Quality Planning and Standards. The TTN provides
information and technology exchange in various areas of air pollution
control. The service is free, except for the cost of a phone call. Dial
(919) 541-5742 for data transfer of up to 14,400 bits per second. The
TTN is also available on the Internet (access: TELNET
ttnbbs.rtpnc.epa.gov). If more information on the operation of the TTN
is needed, contact the systems operator at (919) 541-5384.
FOR FURTHER INFORMATION CONTACT: Mr. Stephen Shedd at telephone number
(919) 541-5397 or at fax number (919) 541-3470, Emission Standards
Division (MD-13), U.S. Environmental Protection Agency, Research
Triangle Park, North Carolina 27711.
SUPPLEMENTARY INFORMATION: The information presented in this preamble
is organized as follows:
I. Background and Final Amendments
A. Background
B. Summary of Amendments
II. Comments on the Proposed Amendments
A. Public Participation
B. Comments Received on the Proposed Amendments
C. Summary of Comments and EPA Responses
1. Opportunity for Comment
2. Extension of Deadline for Initial Notification
3. Extension of Initial Compliance Date for Leak Detection and
Repair (LDAR)
4. Potential to Emit (PTE)
5. Risk
III. Administrative Requirements
A. Paperwork Reduction Act
B. Executive Order 12866
C. Regulatory Flexibility Act
D. Unfunded Mandates Act
E. Regulatory Review
I. Background and Final Rule Amendments
A. Background
On December 14, 1994 (59 FR 64303), the EPA promulgated the
``National Emission Standards for Hazardous Air Pollutants for Source
Categories: Gasoline Distribution (Stage I)'' (the ``Gasoline
Distribution NESHAP''). The Gasoline Distribution NESHAP regulates all
hazardous air pollutants (HAP) emitted from new and existing bulk
gasoline terminals and pipeline breakout stations that are major
sources of HAP emissions or are located at sites that are major sources
of HAP emissions. Among the promulgated requirements for existing
sources under this rule are the requirements that sources institute an
equipment leak prevention program and provide an initial notification
of regulatory status no later than December 14, 1995 (40 CFR
Secs. 63.424(e) and 63.428(a)).
On November 7, 1995 (60 FR 56133), the EPA proposed amendments to
the Gasoline Distribution NESHAP. The EPA proposed to amend the initial
compliance date for the equipment leak provisions applicable to
existing sources from no later than December 14, 1995 to no later than
December 15, 1997, and to amend the date by which an existing facility
must provide an initial notification to December 16, 1996 or 1 year
after a facility becomes subject to the Gasoline Distribution NESHAP,
whichever is later. Those modifications were proposed because the
compliance date for these provisions was approaching and the EPA
believes that, under current circumstances, additional time will allow
sources a better opportunity to establish major or area source status
without forgoing quantifiable emissions reductions.
On December 8, 1995 (60 FR 62991), the EPA issued a partial 3-month
stay of the December 14, 1995 compliance date for equipment leak
prevention provisions and providing an initial notification of
regulatory status and use of a screening equation in the Gasoline
Distribution NESHAP. The December 14, 1995 compliance date for leak
detection and repair provisions and initial notifications was stayed
for existing facilities until March 7, 1996. The EPA issued the stay
pursuant to Clean Air Act section 307(d)(7)(B), 42 U.S.C.
7607(d)(7)(B), which provides the Administrator authority to stay the
effectiveness of a rule during reconsideration.
B. Summary of Amendments
After considering all of the comments, both for and against the
proposed amendments, the EPA is promulgating these rule amendments as
they were proposed. The EPA consideration and response to all the
comments are contained in the next section of this document. In
summary, the final amendments consist of two new compliance dates in
the promulgated rule: the initial compliance date for the equipment
leak provisions (Sec. 63.424(e)) applicable to existing sources is no
later than December 15, 1997, and the date by which an existing
facility must provide an initial notification (Sec. 63.428(a)) is
December 16, 1996 or 1 year after a facility becomes subject to the
Gasoline Distribution NESHAP, whichever is later. This action also
clarifies that all initial notifications are to be submitted by the
same time (December 16, 1996) as intended at proposal and noted in the
stay. The EPA is promulgating this related clarifying amendment that
extends the notification for area source facilities using an emission
screening equation (Sec. 63.428 (i)(1) and (j)(1)) to that same date.
The EPA continues to believe that, under current circumstances, this
additional time is needed to allow sources a better opportunity to
establish major or area source status without forgoing quantifiable
emissions reductions.
II. Comments on the Proposed Amendments
A. Public Participation
These amendments were proposed in the Federal Register on November
7, 1995 (60 FR 56133). Public comments were solicited at the time of
proposal. Electronic versions of the preamble and proposed regulatory
amendments were made available to interested parties immediately after
signature (on November 2, 1995) via the TTN bulletin board (see
ADDRESSES section of this preamble for more TTN information).
The preamble to the proposed amendments provided the public the
opportunity to request a public hearing. However, a public hearing was
not requested. The public comment period for the proposed amendments
was from November 7, 1995 until December 7, 1995 and the document was
available to the public on the TTN even earlier, as of November 2,
1995. In all, 13 comment letters were received. The comments have been
carefully considered in arriving at the final amendments being
promulgated in this document.
B. Comments Received on the Proposed Amendments
Comments on the proposed amendments were received from 13
commenters, consisting of oil
[[Page 7720]]
companies (10), trade organizations (2), and one environmental
organization. Most of the commenters were in general agreement with the
proposed amendments. Due to the small number of comments received, and
the fact that technical issues were not involved, no background
information document (BID) was prepared to present more detailed
comments and responses.
However, the original comment letters have been placed in the
docket, which is referred to in the ADDRESSES section of this preamble.
For summary purposes, all of the comments have been grouped by the
topic areas they address, and are discussed in the next section.
C. Summary of Comments and EPA Responses
As mentioned in the previous section, all but one of the commenters
expressed general agreement with the proposed amendments to the
Gasoline Distribution (Stage I) NESHAP. A summary of the major comments
and the EPA's responses is presented below.
(1) Opportunity for Comment
One commenter considered the comment period for the proposal to be
inadequate to allow most citizens to comment on the proposal, since it
frequently requires a week or more for the Federal Register to arrive
at public libraries, and another week or more for placement on library
shelves. This leaves less than 2 weeks to research, write, edit, and
mail comments. This commenter also felt that most citizens were
unlikely to have learned of the opportunity to request a public hearing
before the deadline for requesting such a hearing expired. However, the
commenter did not request extension of the time to comment.
The EPA placed the proposal preamble and amendments on the TTN on
November 2, 1995, 1 day after it was signed by the Administrator. The
TTN is an electronic (computer) bulletin board, free to users, and is
available on the Internet for use by the public. The usual comment
period (30 days beginning with publication of the proposal in the
Federal Register) and opportunity for requesting a hearing were
provided at the time of proposal. No person contacted the EPA to
request more time to comment. The time period was consistent with the
requirements of section 307 of the Act. The EPA did not provide a
longer comment period due to the relative narrowness and simplicity of
the proposal and the proximity of the compliance dates. For these
reasons, the EPA believes that a reasonable amount of time was afforded
the public for commenting on the proposal.
(2) Extension of Deadline for Initial Notification
Twelve of the commenters expressed support for the proposed
amendment to the initial notification date for existing sources. Most
said that the change was essential to provide many bulk terminals and
pipeline breakout stations a reasonable opportunity to calculate their
potential to emit and to determine the applicability of the NESHAP.
Four commenters supported the non-binding clause of the initial
notification, feeling that such a clause will encourage would-be major
sources to consider pollution prevention opportunities or additional
controls prior to the December 15, 1997 compliance date. Commenters
also pointed out that the amended notification date would not have any
adverse impact on the environment. Potential negative consequences of
not finalizing the amendment cited by commenters included the erroneous
classification of many facilities as major sources due to the short
time available to establish area source status, and the avoidance of
these terminals by outside tank truck firms not wishing to incur the
vapor tightness testing obligations associated with affected terminals.
The EPA is promulgating the amendment to the initial notification
deadline for existing sources as it was proposed: 1 year after an
affected source becomes subject to the NESHAP or by December 16, 1996,
whichever is later. In addition, the clause specifying that
declarations of major source status submitted by this deadline will be
considered non-binding for 1 year has been retained in the final
amendments. This means that facilities that include in their
notification a brief description and schedule for their planned actions
for achieving area source status by December 15, 1997 can make a change
to their status until this latter deadline. The EPA believes that
although the information in the notifications may change, it provides
necessary information for tank truck companies in planning their vapor
tightness testing schedules and for Federal, State, and local air
pollution control agencies in planning for rule implementation and
compliance activities.
(3) Extension of Initial Compliance Date for Leak Detection and Repair
(LDAR)
Twelve of the commenters also supported the proposed amendment to
the initial compliance date, which affects only periodic visual
inspection programs for leaks from gasoline equipment components. These
commenters said that the change was essential to provide many terminals
and pipeline breakout stations a reasonable chance to demonstrate that
they are not major sources subject to the NESHAP, and to allow time for
the resolution of the potential to emit issue (see next comment topic).
One commenter stated that this amendment would provide State and local
agencies additional time to develop EPA-approved federally enforceable
State operating permit (FESOP) programs and to complete permit
processing. Another company said that EPA approvals of its 33 FESOP and
15 Title V permit actions have been very slow and the company would not
be able to obtain these permits by the promulgated first compliance
date of December 14, 1995. The company felt that this date extension
would give them a reasonable opportunity to obtain approval of
artificial limits on potential to emit from most, if not all, of the
appropriate State agencies. Commenters believed that having a common
compliance date for all aspects of the regulation would allow more time
for facility owners and operators to consider pollution prevention
opportunities or additional controls. A number of commenters pointed
out that equipment leak emissions represent a minor portion of a
facility's total HAP emission inventory, and most facilities already
have some type of routine visual inspection program. Therefore, the
proposed change would have no long-term adverse impact on human health
or the environment.
One commenter, however, expressed concern that the EPA, by delaying
the initial compliance date, would put citizens at risk on the basis of
the already high levels of benzene and other gasoline components in the
air around terminals.
The EPA has considered all of these comments, including the comment
opposing the compliance date extension. The EPA continues to believe
that deferral of the compliance date for the equipment leak provisions
for existing sources until December 15, 1997 is the most appropriate
way to allow sources a better opportunity to establish major or area
source status without forgoing quantifiable emissions reductions. The
EPA also agrees with commenters that equipment leak emissions are
relatively small under normal operations, and so delaying compliance
with the visual inspection requirement for major source facilities will
not produce any significant increase in risk to exposed populations.
(See the more complete discussion of risk under section (5) Risk
below.)
[[Page 7721]]
(4) Potential to Emit (PTE)
Several commenters took issue with the EPA's policy that only
federally enforceable control standards or operating limitations would
be considered in determining the potential to emit of facilities and,
consequently, whether they would be a major source and subject to the
NESHAP. Four commenters cited a decision by the U.S. Court of Appeals
for the District of Columbia Circuit ruling that the EPA's stand on the
issue is unlawful, which the commenters interpreted to indicate that
the policy has been vacated and is no longer in effect. One commenter
stated that the EPA's insistence on maintaining its policy on this
matter creates confusion on the part of facilities potentially subject
to this rule. Three other commenters said that requiring federally
enforceable emission controls in determinations of potential to emit
inflates emission estimates, which could cause area sources to be
classified as major sources required to undertake unnecessary controls
and programs. Two commenters concluded that the EPA should allow
permitting authorities to take into account State and local controls
that the permitting authority deems effective in limiting facilities'
potential to emit.
The EPA's proposal to amend the Gasoline Distribution NESHAP
focused narrowly on the issue of modifying compliance dates for two
provisions, the equipment leak inspection requirements and the
notification of major source status, rather than the distinct issues of
whether the emission screening equation and the emissions inventory
methods of calculating potential to emit should be revised to reflect
limitations on emissions that are not federally enforceable, and
whether Federal enforceability should be a necessary criterion for
determination of potential to emit under section 112 in general. Thus,
comments regarding these latter two issues are outside the scope of the
topics raised by the proposal. However, the EPA believes it is useful
in response to these comments to summarize the impact of the court
decision referenced by commenters, as well as related EPA guidance
recognizing State-enforced PTE limits under section 112 during a
transition period.
The EPA interpreted the impact of the referenced court decision in
a January 22, 1996 guidance memorandum, which is contained in the
docket and is also available on the TTN (see ADDRESSES section). The
memorandum stated that, in National Mining Association v. EPA, 59 F.3d
1351 (D.C. Cir. 1995), the court addressed regulations under subpart A
of 40 CFR part 63, the ``General Provisions'' of hazardous air
pollutant programs under section 112. The court found that the EPA had
not adequately explained why only federally enforceable measures should
be considered as limits on a source's potential to emit. Accordingly,
the court remanded the section 112 General Provisions regulation to the
EPA for further proceedings. The EPA must either provide a better
explanation as to why Federal enforceability promotes the effectiveness
of State controls, or remove the exclusive Federal enforceability
requirement. The court did not vacate the section 112 regulations; that
is, the court did not declare the regulations null and void. The
regulations remain in effect pending completion of new rulemaking.
The EPA plans to hold discussions with stakeholders and propose
rulemaking amendments by spring 1996, and to issue final rules by
spring 1997, that would address the court decisions impacting
regulations promulgated pursuant to section 112 as well as other air
act provisions. The EPA currently plans to address the following
options, after discussions with stakeholders:
(a) An approach that would recognize ``effective'' State-
enforceable limits as an alternative to federally enforceable limits on
a source's potential to emit. Under this option, a source whose maximum
capacity to emit without pollution controls or operational limitations
exceeds relevant major source thresholds may take a State or local
limit on its potential to emit. In such circumstances, the source must
be able to demonstrate that the State-enforceable limits are (1)
enforceable as a practical matter, and (2) being regularly complied
with by the facility.
(b) An approach under which the EPA would continue to require
Federal enforceability of limits on a source's potential to emit. Under
this approach, in response to specific issues raised by the court in
National Mining, the EPA would present further explanation regarding
why the Federal enforceability requirement promotes effective controls.
Under this approach, the EPA would propose simplifying changes to the
administrative provisions of the current Federal enforceability
regulations.
Any method for limiting potential to emit made available as a
result of the EPA's response to the NMA remand will be available to
sources in the Gasoline Distribution (Stage I) source category. The EPA
expects to respond to the remand in NMA with adequate time to allow
such sources to seek any new methods developed.
The EPA today reiterates that independent from the decision in
National Mining, current EPA policy already recognizes State-
enforceable PTE limits under section 112 in many circumstances under a
transition policy intended to provide for orderly implementation of
these new programs under the Clean Air Act Amendments of 1990. This
policy is set forth in a memorandum, ``Options for Limiting the
Potential to Emit (PTE) of a Stationary Source Under Section 112 and
Title V of the Clean Air Act'' (January 25, 1995), and has been amended
in one significant way by the January 22, 1996 guidance memorandum as
noted below. (Both memoranda are contained in the docket and are also
available on the TTN, see ADDRESSES section.)
Under the terms of the EPA's transition policy, the transition
period is to end in January 1997. In addition, completion of the EPA's
rulemaking in response to the recent court decisions, which the EPA
anticipates will occur by early 1997, may render the transition policy
unnecessary after that time. However, in conjunction with the
rulemaking, the EPA will consider whether it is appropriate to extend
the transition period beyond January 1997.
In recognition of the absence in some States of suitable federally
enforceable mechanisms to limit PTE applicable to sources that might
otherwise be subject to section 112 or Title V, the EPA's policy
provides for the consideration of State-enforceable limits as a gap-
filling measure during a transition period that extends until January
1997. Under this policy, for the 2-year transition period, restrictions
contained in State permits issued to sources that actually emit more
than 50 percent, but less than 100 percent, of a relevant major source
threshold are treated by the EPA as acceptable limits on potential to
emit, provided: (a) the permit and the restriction in particular are
enforceable as a practical matter, and (b) the source owner submits a
written certification to the EPA accepting EPA and citizen enforcement.
In light of National Mining, the EPA believes that the certification
requirement is no longer appropriate as part of this policy.
Accordingly, under the January 1996 guidance, the EPA amended the
January 1995 transition policy by deleting the certification
requirement.
In addition, under the transition policy, sources with consistently
low levels of actual emissions relative to major source thresholds can
avoid major source requirements even absent any permit or other
enforceable limit on PTE. Specifically, the policy provides
[[Page 7722]]
that sources which maintain their emissions at levels that do not
exceed 50 percent of any applicable major source threshold are not
treated as major sources and do not need a permit to limit PTE, so long
as they maintain adequate records to demonstrate that the 50 percent
level is not exceeded.
The EPA's action in this rule to extend the compliance dates for
the two provisions will give more opportunities for sources to obtain
potential to emit limits consistent with the EPA's guidance and hence
avoid being subject to regulation as major sources.
One commenter disagreed with the EPA's interpretation that if a
facility does not demonstrate area source status by the first
substantive compliance date, then the facility, regardless of actual
emissions or any subsequent State operating permit limitation, would be
permanently classified as a major source.
The EPA's interpretation was explained in an EPA guidance
memorandum from John S. Seitz, ``Potential to Emit for MACT Standards--
Guidance on Timing Issues'' (May 16, 1995), which is contained in the
docket (item no. VI-B-6) and is also available on the TTN (see
ADDRESSES section). The EPA notes that the commenter viewed finalizing
the proposed amendments to the compliance dates as a ``critical need *
* * [to] avoid unintended inclusion of area sources.'' For the
facilities in this source category, the EPA and many commenters believe
that delaying the first compliance date will provide the relief being
sought by the above commenters.
A number of commenters noted that the emission screening equation
in the final rule cannot be used by bulk terminals because essentially
all terminals handle non-gasoline products, such as diesel fuel or home
heating oil, which makes them ineligible to use the equation. The
commenters urged the EPA to reexamine the issue of which facilities are
eligible to use the equation, pointing out that the HAP emitted from
these products are ``de minimis'' and should not compel facilities to
use the more cumbersome and costly emissions inventory mechanism for
determining potential to emit.
As discussed in the proposal preamble, the EPA is considering data
and information submitted by the API (and available in the docket) in
order to evaluate a possible expansion of the screening equation to
include non-gasoline products that emit HAP, and will make a final
decision about changes to the equation under a separate action. The EPA
is still reviewing this information and is not prepared to discuss any
specific changes to the equation at this time. Depending on the results
of its review of the pertinent data, the EPA may propose changes to the
equation and request comment in a forthcoming and separate action in
the Federal Register.
(5) Risk
One commenter opposed the proposal to delay the initial compliance
date for the NESHAP on the grounds that the health risk to populations
exposed to ambient HAP concentrations near terminals would be
increased. The commenter expressed a belief that the language and
legislative history of the Clean Air Act reflects a Congressional
intent to limit public exposures to carcinogens to a level that will
not produce a lifetime risk of cancer at a rate greater than one in a
million. According to the commenter, a 50-year lifetime constant
exposure to a gasoline vapor concentration of 0.639 part per billion
(ppb) would correspond to the Act's one-in-a-million lifetime risk
standard. The commenter cited a 1993 air quality study at the Paw Creek
terminals in North Carolina that indicated a maximum benzene
concentration of 2.2 ppb, which they claimed corresponds to a lifetime
cancer risk of at least 131 per million. The commenter concluded that
emission levels corresponding to such risks ought to be reduced as
quickly as possible.
The EPA has not performed a risk analysis to allow the EPA to
verify the risk estimation results cited by the commenter, nor did the
commenter include a copy of the study with their comments. However, in
accordance with sections 112 (d)(6) and (f)(2) of the Act, the Gasoline
Distribution NESHAP will be reviewed within 8 years after the date of
promulgation (i.e., by December 14, 2002). This review may include an
assessment of residual health risk, in addition to many other aspects
of the regulation. As discussed above, the proposal and this final
action only extend the compliance time for instituting programs to
perform visual inspections and subsequent repair of equipment
components in gasoline service at terminals and pipeline breakout
stations. Most facilities are already carrying out similar informal
programs and, furthermore, data show that the HAP emissions from this
equipment in normal operation are very low. The compliance date of
December 15, 1997 promulgated in the final rule for the remaining
emission sources at bulk terminals will not be affected by this action.
Due to these factors, the EPA believes that this action will not
substantially change the emissions near major source gasoline
distribution facilities. For these reasons, the EPA is finalizing the
extension of the compliance date for LDAR until December 15, 1997 as
proposed on November 7, 1995.
III. Administrative Requirements
A. Paperwork Reduction Act
The information collection requirements of the previously
promulgated NESHAP were submitted to and approved by the Office of
Management and Budget (OMB). A copy of this Information Collection
Request (ICR) document (OMB control number 2060-0325) may be obtained
from Ms. Sandy Farmer, Information Policy Branch, Environmental
Protection Agency, 401 M Street., S.W. (mail code 2136), Washington, DC
20460, or by calling (202) 260-2740.
Today's amendments to the Gasoline Distribution NESHAP have no
impact on the information collection burden estimates made previously.
No additional certifications or filings were promulgated. Therefore,
the ICR has not been revised.
B. Executive Order 12866
Under Executive Order 12866 (58 FR 51735, October 4, 1993), the EPA
must determine whether a regulation is ``significant'' and therefore
subject to OMB review and the requirements of the Executive Order. The
criteria set forth in section 1 of the Order for determining whether a
regulation is a significant rule are as follows:
(1) Is likely to have an annual effect on the economy of $100
million or more, or adversely and materially affect a sector of the
economy, productivity, competition, jobs, the environment, public
health or safety, or State, local, or tribal government communities;
(2) Is likely to create a serious inconsistency or otherwise
interfere with an action taken or planned by another agency;
(3) Is likely to materially alter the budgetary impact of
entitlements, grants, user fees, or loan programs or the rights and
obligations of recipients thereof; or
(4) Is likely to raise novel or policy issues arising out of legal
mandates, the President's priorities, or the principles set forth in
the Executive Order.
The Gasoline Distribution NESHAP promulgated on December 14, 1994,
was treated as a ``significant regulatory action'' within the meaning
of the Executive Order. An estimate of the cost and benefits of the
NESHAP was prepared at proposal as part of the
[[Page 7723]]
background information document (BID) and was updated in the BID for
the final rule to reflect comments and changes to the final rule. The
amendments issued today have no impact on the estimates in the BID. The
EPA's earlier estimates of costs and emission reductions were based on
the Gasoline Distribution NESHAP affecting only major sources and did
not quantify the emission reductions associated with the visual
equipment leak detection program; in any event, these emission
reductions are small relative to the total reduction for the source
category.
Pursuant to the terms of Executive Order 12866, it has been
determined that this action is a ``non-significant regulatory action''
within the meaning of the Executive Order. As such, this action was not
submitted to OMB for review.
C. Regulatory Flexibility Act
The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) requires the
EPA to consider potential impacts of regulations on small business
entities. The Act specifically requires the preparation of a Regulatory
Flexibility Analysis in those instances where small business impacts
are possible. When the EPA promulgated the Gasoline Distribution
NESHAP, it analyzed the potential impacts on small businesses,
discussed the results of this analysis in the Federal Register, and
concluded that the promulgated regulation would not result in financial
impacts that significantly or differentially stress affected small
companies. Since today's action imposes no additional impacts, a
Regulatory Flexibility Analysis has not been prepared.
Pursuant to the provisions of 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 business entities.
D. Unfunded Mandates Act
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 today's action 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. Therefore, the requirements of the Unfunded
Mandates Act do not apply to this action.
E. Regulatory Review
In accordance with sections 112(d)(6) and 112(f)(2) of the Act,
this regulation will be reviewed 8 years from the date of promulgation.
This review may include an assessment of such factors as evaluation of
the residual health risk, any overlap with other programs, the
existence of alternative methods of control, enforceability,
improvements in emission control technology and health data, and the
recordkeeping and reporting requirements.
List of Subjects in 40 CFR Part 63
Environmental protection, Air pollution control, Hazardous
substances, Petroleum bulk stations and terminals, Reporting and
recordkeeping requirements.
1Dated: February 23, 1996.
Carol M. Browner,
Administrator.
For the reasons set out in the preamble, part 63 of chapter I of
title 40 of the Code of Federal Regulations is amended as follows:
PART 63--NATIONAL EMISSION STANDARDS FOR HAZARDOUS AIR POLLUTANTS
FOR SOURCE CATEGORIES
1. The authority citation for part 63 continues to read as follows:
Authority: 42 U.S.C. 7401 et seq.
2. Section 63.424 is amended by revising paragraph (e) to read as
follows:
Sec. 63.424 Standards: Equipment leaks.
* * * * *
(e) Initial compliance with the requirements in paragraphs (a)
through (d) of this section shall be achieved by existing sources as
expeditiously as practicable, but no later than December 15, 1997. For
new sources, initial compliance shall be achieved upon startup.
* * * * *
3. Section 63.428 is amended by revising paragraph (a), the first
sentence of paragraph (f)(1), paragraph (i)(1), and paragraph (j)(1) to
read as follows:
Sec. 63.428 Reporting and recordkeeping.
(a) The initial notifications required for existing affected
sources under Sec. 63.9(b)(2) shall be submitted by 1 year after an
affected source becomes subject to the provisions of this subpart or by
December 16, 1996, whichever is later. Affected sources that are major
sources on December 16, 1996 and plan to be area sources by December
15, 1997 shall include in this notification a brief, non-binding
description of and schedule for the action(s) that are planned to
achieve area source status.
* * * * *
(f) * * *
(1) In the case of an existing source or a new source that has an
initial startup date before the effective date, the report shall be
submitted with the notification of compliance status required under
Sec. 63.9(h), unless an extension of compliance is granted under
Sec. 63.6(i). * * *
* * * * *
(i) * * *
(1) Document and report to the Administrator not later than
December 16, 1996 for existing facilities, within 30 days for existing
facilities subject to Sec. 63.420(c) after December 16, 1996, or at
startup for new facilities the methods, procedures, and assumptions
supporting the calculations for determining criteria in Sec. 63.420(c);
* * * * *
(j) * * *
(1) Document and report to the Administrator not later than
December 16, 1996 for existing facilities, within 30 days for existing
facilities subject to Sec. 63.420(d) after December 16, 1996, or at
startup for new facilities the use of the emission screening equations
in Sec. 63.420(a)(1) or (b)(1) and the calculated value of ET or
EP;
* * * * *
4. Table 1 to subpart R is amended by revising the entry
``63.9(b)(2)'' to read as follows:
* * * * *
[[Page 7724]]
Table 1 to Subpart R.--General Provisions Applicability to Subpart R
----------------------------------------------------------------------------------------------------------------
Reference Applies to subpart R Comment
----------------------------------------------------------------------------------------------------------------
* * * * * *
63.9(b)(2)..................... No............................. Subpart R allows additional time for existing
sources to submit initial notification. Sec.
63.428(a) specifies submittal by 1 year after
being subject to the rule or December 16,
1996, whichever is later.
* * * * * *
*
----------------------------------------------------------------------------------------------------------------
[FR Doc. 96-4706 Filed 2-28-96; 8:45 am]
BILLING CODE 6560-50-P
Complete official Federal Register PDF
FR Doc. 96-4704 Melons Grown in South Texas; Increased Expenses and Establishment of Assessment Rate
[Federal Register Volume 61, Number 41 (Thursday, February 29, 1996)]
[Rules and Regulations]
[Pages 7688-7690]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-4704]
-----------------------------------------------------------------------
DEPARTMENT OF AGRICULTURE
Agricultural Marketing Service
7 CFR Part 979
[Docket No. FV95-979-1FIR]
Melons Grown in South Texas; Increased Expenses and Establishment
of Assessment Rate
AGENCY: Agricultural Marketing Service, USDA.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Department of Agriculture (Department) is adopting as a
final rule, without change, the provisions of an amended interim final
rule that increased the level of authorized expenses and established an
assessment rate to generate funds to pay those expenses under Marketing
Order No. 979 for the 1995-96 fiscal period. Authorization of this
budget enables the South Texas Melon Committee (Committee) to incur
expenses that are reasonable and necessary to administer the program.
Funds to administer this program are derived from assessments on
handlers.
EFFECTIVE DATE: October 1, 1995, through September 30, 1996.
FOR FURTHER INFORMATION CONTACT: Martha Sue Clark, Marketing Order
Administration Branch, Fruit and Vegetable Division, AMS, USDA, P.O.
Box 96456, room 2523-S, Washington, DC 20090-6456, telephone 202-720-
9918, or Belinda G. Garza, McAllen Marketing Field Office, Fruit and
Vegetable Division, AMS, USDA, 1313 East Hackberry, McAllen, TX 78501,
telephone 210-682-2833.
SUPPLEMENTARY INFORMATION: This rule is issued under Marketing
Agreement No. 156 and Order No. 979 (7 CFR part 979), regulating the
handling of melons grown in South Texas, hereinafter referred to as the
``order.'' The order is effective under the Agricultural Marketing
Agreement Act of 1937, as amended (7 U.S.C. 601-674), hereinafter
referred to as the ``Act.''
The Department is issuing this rule in conformance with Executive
Order 12866.
This rule has been reviewed under Executive Order 12778, Civil
Justice Reform. Under the marketing order provisions now in effect,
South Texas melons are subject to assessments. It is intended that the
assessment rate as issued herein will be applicable to all assessable
melons handled during the 1995-96 fiscal period, which began October 1,
1995, and ends September 30, 1996. This rule will not preempt any State
or local laws, regulations, or policies, unless they present an
irreconcilable conflict with this rule.
The Act provides that administrative proceedings must be exhausted
before parties may file suit in court. Under section 608c(15)(A) of the
Act, any handler subject to an order may file with the Secretary a
petition stating that the order, any provision of the order, or any
obligation imposed in connection with the order is not in accordance
with law and requesting a modification of the order or to be exempted
therefrom. A handler is afforded the opportunity for a hearing on the
petition. After the hearing the Secretary would rule on the
[[Page 7689]]
petition. The Act provides that the district court of the United States
in any district in which the handler is an inhabitant, or has his or
her principal place of business, has jurisdiction in equity to review
the Secretary's ruling on the petition, provided a bill in equity is
filed not later than 20 days after the date of the entry of the ruling.
Pursuant to the requirements set forth in the Regulatory
Flexibility Act (RFA), the Administrator of the Agricultural Marketing
Service (AMS) has considered the economic impact of this rule on small
entities.
The purpose of the RFA is to fit regulatory actions to the scale of
business subject to such actions in order that small businesses will
not be unduly or disproportionately burdened. Marketing orders issued
pursuant to the Act, and the rules issued thereunder, are unique in
that they are brought about through group action of essentially small
entities acting on their own behalf. Thus, both statutes have small
entity orientation and compatibility.
There are approximately 30 producers of South Texas melons under
this marketing order, and approximately 27 handlers. Since the amended
interim final was issued, information regarding a decrease in the
number of producers from approximately 40 to 30 and an increase in the
number of handlers from approximately 19 to 27 was received. Small
agricultural producers have been defined by the Small Business
Administration (13 CFR 121.601) as those having annual receipts of less
than $500,000, and small agricultural service firms are defined as
those whose annual receipts are less than $5,000,000. The majority of
South Texas melon producers and handlers may be classified as small
entities.
The budget of expenses for the 1995-96 fiscal period was prepared
by the South Texas Melon Committee, the agency responsible for local
administration of the marketing order, and submitted to the Department
for approval. The members of the Committee are producers and handlers
of South Texas melons. They are familiar with the Committee's needs and
with the costs of goods and services in their local area and are thus
in a position to formulate an appropriate budget. The budget was
formulated and discussed in a public meeting. Thus, all directly
affected persons have had an opportunity to participate and provide
input.
The assessment rate recommended by the Committee was derived by
dividing anticipated expenses by expected shipments of South Texas
melons. Because that rate will be applied to actual shipments, it must
be established at a rate that will provide sufficient income to pay the
Committee's expenses.
Committee administrative expenses of $234,044 for personnel,
office, and compliance expenses were recommended in a mail vote. The
assessment rate and funding for research and promotion projects were to
be recommended at a later Committee meeting. The Committee
administrative expenses of $234,044 were published in the Federal
Register as an interim final rule October 23, 1995 (60 FR 54294). That
interim final rule added Sec. 979.218, authorizing expenses for the
Committee, and provided that interested persons could file comments
through November 22, 1995. No comments were filed.
The Committee subsequently met on December 12, 1995, and
unanimously recommended an increase of $1,000 for administrative
expenses, plus $160,115 in research expenses, for a total budget of
$395,159. Budget items for 1995-96 which have increased compared to
those budgeted for 1994-95 (in parentheses) are: Manager's salary,
$19,094 ($15,172), office salaries, $24,000 ($22,000), payroll taxes,
$4,000 ($3,100), insurance, $8,000 ($6,250), rent and utilities, $6,500
($6,000), supplies, $2,000 ($1,500), postage, $1,500 ($1,000),
telephone and telegraph, $4,000 ($2,500), furniture and fixtures,
$2,000 ($1,000), equipment rental and maintenance, $3,500 ($2,500),
contingencies, $6,000 ($5,278), Committee expenses, $2,000 ($700),
manager's travel, $5,000 ($3,000), variety evaluation, $10,875
($9,186), and $3,750 for deferred compensation (manager's retirement),
which was not a line item expense last year. Items which have decreased
compared to the amount budgeted for 1994-95 (in parentheses) are: field
travel, $4,000 ($5,000), and field salary, $5,500 ($8,000). All other
items are budgeted at last year's amounts, including $86,716 for a
disease management program, $18,700 for an insect management program,
$32,674 for breeding and variety development, and $11,150 for control
of melon diseases.
The initial 1995-96 budget, published on October 23, 1995, did not
establish an assessment rate. Therefore, the Committee also unanimously
recommended an assessment rate of $0.07 per carton, the same as last
year. This rate, when applied to anticipated shipments of approximately
4,500,000 cartons, will yield $315,000 in assessment income, which,
along with $80,159 from the reserve, will be adequate to cover budgeted
expenses. Funds in the reserve as of December 31, 1995, were $398,821,
which is within the maximum permitted by the order of two fiscal
periods' expenses.
An amended interim final rule was published in the Federal Register
on January 4, 1996 (61 FR 248). That interim final rule amended
Sec. 979.218 to increase the level of authorized expenses and establish
an assessment rate for the Committee. That rule provided that
interested persons could file comments through February 5, 1996. No
comments were received.
While this action will impose some additional costs on handlers,
the costs are in the form of uniform assessments on handlers. Some of
the additional costs may be passed on to producers. However, these
costs will be offset by the benefits derived from the operation of the
marketing order. Therefore, the Administrator of the AMS has determined
that this action will not have a significant economic impact on a
substantial number of small entities.
After consideration of all relevant matter presented, including the
information and recommendations submitted by the Committee and other
available information, it is hereby found that this rule, as
hereinafter set forth, will tend to effectuate the declared policy of
the Act.
It is further found that good cause exists for not postponing the
effective date of this rule until 30 days after publication in the
Federal Register (5 U.S.C. 553) because the Committee needs to have
sufficient funds to pay its expenses which are incurred on a continuous
basis. The 1995-96 fiscal period began on October 1, 1995. The
marketing order requires that the rate of assessment for the fiscal
period apply to all assessable melons handled during the fiscal period.
In addition, handlers are aware of this rule which was recommended by
the Committee at a public meeting and published in the Federal Register
as an amended interim final rule.
List of Subjects in 7 CFR Part 979
Marketing agreements, Melons, Reporting and recordkeeping
requirements.
For the reasons set forth in the preamble, 7 CFR part 979 is
amended as follows:
PART 979--MELONS GROWN IN SOUTH TEXAS
Accordingly, the amended interim final rule revising Sec. 979.218
which was published at 61 FR 248 on January 4, 1996, is adopted as a
final rule without change.
[[Page 7690]]
Dated: February 23, 1996.
Martha B. Ransom,
Acting Deputy Director, Fruit and Vegetable Division.
[FR Doc. 96-4704 Filed 2-28-96; 8:45 am]
BILLING CODE 3410-02-P
Complete official Federal Register PDF
FR Doc. 96-4689 Standard Instrument Approach Procedures; Miscellaneous Amendments
[Federal Register Volume 61, Number 41 (Thursday, February 29, 1996)]
[Rules and Regulations]
[Pages 7699-7700]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-4689]
-----------------------------------------------------------------------
DEPARTMENT OF TRANSPORTATION
14 CFR Part 97
[Docket No. 28480; Amdt. No. 1714]
Standard Instrument Approach Procedures; Miscellaneous Amendments
AGENCY: Federal Aviation Administration (FAA), DOT.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: This amendment establishes, amends, suspends, or revokes
Standard Instrument Approach Procedures (SIAPs) for operations at
certain airports. These regulatory actions are needed because of the
adoption of new or revised criteria, or because of changes occurring in
the National Airspace System, such as the commissioning of new
navigational facilities, addition of new obstacles, or changes in air
traffic requirements. These changes are designed to provide safe and
efficient use of the navigable airspace and to promote safe flight
operations under instrument flight rules at the affected airports.
DATES: An effective date for each SIAP is specified in the amendatory
provisions.
Incorporation by reference-approved by the Director of the Federal
Register on December 31, 1980, and reapproved as of January 1, 1982.
ADDRESSES: Availability of matters incorporated by reference in the
amendment is as follows:
For Examination
1. FAA Rules Docket, FAA Headquarters Building, 800 Independence
Avenue, SW., Washington, DC 20591;
2. The FAA Regional Office of the region in which the affected
airport is located; or
3. The Flight Inspection Area Office which originated the SIAP.
For Purchase
Individual SIAP copies may be obtained from:
1. FAA Public Inquiry Center (APA-200), FAA Headquarters Building,
800 Independence Avenue, SW., Washington, DC 20591; or
2. The FAA Regional Office of the region in which the affected
airport is located.
By Subscription
Copies of all SIAPs, mailed once every 2 weeks, are for sale by the
Superintendent of Documents, U.S. Government Printing Office,
Washington, DC 20402.
FOR FURTHER INFORMATION CONTACT: Paul J. Best, Flight Procedures
Standards Branch (AFS-420), Technical Programs Division, Flight
Standards Service, Federal Aviation Administration, 800 Independence
Avenue, SW., Washington, DC 20591; telephone (202) 267-8277.
SUPPLEMENTARY INFORMATION: This amendment to part 97 of the Federal
Aviation Regulations (14 CFR part 97) establishes, amends, suspends, or
revokes Standard Instrument Approach Procedures (SIAPs). The complete
regulatory description of each SIAP is contained in official FAA form
documents which are incorporated by reference in this amendment under 5
U.S.C. 552(a), 1 CFR part 51, and Sec. 97.20 of the Federal Aviation
Regulations (FAR). The applicable FAA Forms are identified as FAA Form
8260-5. Materials incorporated by reference are available for
examination or purchase as stated above.
The large number of SIAPs, their complex nature, and the need for a
special format make their verbatim publication in the Federal Register
expensive and impractical. Further, airmen do not use the regulatory
text of the SIAPs, but refer to their graphic depiction on charts
printed by publishers of aeronautical materials. Thus, the advantages
of incorporation by reference are realized and publication of the
complete description of each SIAP contained in FAA form documents is
unnecessary. The provisions of this amendment state the affected CFR
(and FAR) sections, with the types and effective dates of the SIAPs.
This amendment also identifies the airport, its location, the procedure
identification and the amendment number.
This amendment to part 97 is effective upon publication of each
separate SIAP as contained in the transmittal. The SIAPs contained in
this amendment are based on the criteria contained in the United States
Standard for Terminal Instrument Approach Procedures (TERPS). In
developing these SIAPs, the TERPS criteria were applied to the
conditions existing or anticipated at the affected airports.
The FAA has determined through testing that current non-localizer
type, non-precision instrument approaches developed using the TERPS
criteria can be flown by aircraft equipped with
[[Page 7700]]
Global Positioning System (GPS) equipment. In consideration of the
above, the applicable Standard Instrument Approach Procedure (SIAPs)
will be altered to include ``or GPS'' in the title without otherwise
reviewing or modifying the procedure. (Once a stand alone GPS procedure
is developed, the procedure title will be altered to remove ``or GPS''
from these non-localizer, non-precision instrument approach procedure
titles.) Because of the close and immediate relationship between these
SIAPs and safety in air commerce, I find that notice and public
procedure before adopting these SIAPs are, impracticable and contrary
to the public interest and, where applicable, that good cause exists
for making some SIAPs effective in less than 30 days.
The FAA has determined that this regulation only involves an
established body of technical regulations for which frequent and
routine amendments are necessary to keep them operationally current.
It, therefore--(1) is not a ``significant regulatory action'' under
Executive Order 12866; (2) is not a ``significant rule'' under DOT
Regulatory Policies and Procedures (44 FR 11034; February 26, 1979);
and (3) does not warrant preparation of a regulatory evaluation as the
anticipated impact is so minimal. For the same reason, the FAA
certifies that this amendment will not have a significant economic
impact on a substantial number of small entities under the criteria of
the Regulatory Flexibility Act.
List of Subjects in 14 CFR Part 97
Air traffic control, Airports, Navigation (air).
Issued in Washington, DC, on February 23, 1996.
Thomas C. Accardi,
Director, Flight Standards Service.
Adoption of the Amendment
Accordingly, pursuant to the authority delegated to me, part 97 of
the Federal Aviation Regulations (14 CFR part 97) is amended by
establishing, amending, suspending, or revoking Standard Instrument
Approach Procedures, effective at 0901 UTC on the dates specified, as
follows:
PART 97--STANDARD INSTRUMENT APPROACH PROCEDURES
1. The authority citation for part 97 is revised to read as
follows:
Authority: 49 U.S.C. 40103, 40113, 40120, 44701; 49 U.S.C.
106(g); and 14 CFR 11.49(b)(2).
2. Part 97 is amended to read as follows:
Secs. 97.23, 97.27, 97.33, 97.35 [Amended]
By amending: Sec. 97.23 VOR, VOR/DME, VOR or TACAN, and VOR/DME or
TACAN; Sec. 97.27 NDB, NDB/DME; Sec. 97.33 RNAV SIAPs; and Sec. 97.35
COPTER SIAPs, identified as follows:
* * * Effective APR 25, 1996
Stuttgart, AR, Stuttgart Muni, NDB or GPS RWY 18, Amdt 9 Cancelled
Stuttgart, AR, Stuttgart Muni, NDB RWY 18, Amdt 9
Boone, IA, Boone Muni, NDB or GPS RWY 14, Amdt 9 Cancelled
Boone, IA, Boone Muni, NDB RWY 14, Amdt 9
Clinton, IA, Clinton Muni, VOR/DME or GPS RWY 21, Amdt 8 Cancelled
Clinton, IA, Clinton Muni, VOR/DME RWY 21, Amdt 8
Clinton, IA, Clinton Muni, NDB or GPS RWY 14, Amdt 3 Cancelled
Clinton, IA, Clinton Muni, NDB or GPS RWY 14, Amdt 3
De Quincy, LA, De Quincy Industrial Airpark, VOR/DME or GPS RWY 33,
Orig Cancelled
De Quincy, LA, De Quincy Industrial Airpark, VOR/DME RWY 33, Orig
De Quincy, LA, De Quincy Industrial Airpark, NDB or GPS RWY 15, Amdt
1 Cancelled
De Quincy, LA, De Quincy Industrial Airpark, NDB RWY 15, Amdt 1
Opelousas, LA, St Landry Parish-Ahart Field, VOR/DME or GPS RWY 35,
Orig-A Cancelled
Opelousas, LA, St Landry Parish-Ahart Field, VOR/DME RWY 35, Orig-A
Kaiser/Lake Ozark, MO, Lee C. Fine Memorial, NDB or GPS RWY 21, Amdt
6 Cancelled
Kaiser/Lake Ozark, MO, Lee C. Fine Memorial, NDB RWY 21, Amdt 6
Albemarle, NC, Stanly County, NDB or GPS RWY 22, Orig.
Alamogordo, NM, Alamogordo-While Sands Regional, VOR or GPS RWY 3,
Orig Cancelled
Alamogordo, NM, Alamogordo-While Sands Regional, VOR RWY 3, Orig
Las Vegas, NM, Las Vegas Muni, VOR or GPS RWY 2, Amdt 10A Cancelled
Las Vegas, NM, Las Vegas Muni, VOR RWY 2, Amdt. 10A
Las Vegas, NM, Las Vegas Muni, VOR or GPS RWY 20, Amdt 5A Cancelled
Las Vegas, NM, Las Vegas Muni, VOR RWY 20, Amdt 5A
Taos, NM, Taos Muni, NDB or GPS RWY 4, Orig-A Cancelled
Taos, NM, Taos Muni, NDB RWY 4, Orig-A
Zuni Pueblos, NM, Black Rock, VOR/DME or GPS RWY 7, Amdt 1 Cancelled
Zuni Pueblo, NM, Black Rock, VOR/DME RWY 7, Amdt 1
Burnet, TX, Burnet Muni Kate Craddock Field, NDB or GPS RWY 1, Amdt
3 Cancelled
Burnet, TX, Burnet Muni Kate Craddock Field, NDB RWY 1, Amdt 3
Dumas, TX, Moore County, VOR/DME RNAV or GPS RWY 19, Amdt 3
Cancelled
Dumas, TX, Moore County, VOR/DME RNAV RWY 19, Amdt 3
Houston, TX, Houston Intercontinental, NDB or GPS RWY 26, Amdt 1A
Cancelled
Houston, TX, Houston Intercontinental, NDB RWY 26, Amdt 1A
[FR Doc. 96-4689 Filed 2-28-96; 8:45 am]
BILLING CODE 4910-13-M
Complete official Federal Register PDF
FR Doc. 96-4688 Standard Instrument Approach Procedures; Miscellaneous Amendments
[Federal Register Volume 61, Number 41 (Thursday, February 29, 1996)]
[Rules and Regulations]
[Pages 7700-7702]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-4688]
-----------------------------------------------------------------------
DEPARTMENT OF TRANSPORTATION
14 CFR Part 97
[Docket No. 28476; Amdt. No. 1713]
Standard Instrument Approach Procedures; Miscellaneous Amendments
AGENCY: Federal Aviation Administration (FAA), DOT.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: This amendment establishes, amends, suspends, or revokes
Standard Instrument Approach Procedures (SIAPs) for operations at
certain airports. These regulatory actions are needed because of
changes occurring in the National Airspace System, such as the
commissioning of new navigational facilities, addition of new
obstacles, or changes in air traffic requirements. These changes are
designed to provide safe and efficient use of the navigable airspace
and to promote safe flight operations under instrument flight rules at
the affected airports.
DATES: An effective date for each SIAP is specified in the amendatory
provisions.
Incorporation by reference--approved by the Director of the Federal
Register on December 31, 1980, and reapproved as of January 1, 1982.
ADDRESSES: Availability of matter incorporated by reference in the
amendment is as follows:
For Examination
1. FAA Rules Docket, FAA Headquarters Building, 800 Independence
Avenue. SW., Washington, DC 20591;
2. The FAA Regional Office of the region in which affected airport
is located; or
3. The Flight Inspection Area Office which originated the SIAP.
For Purchase
Individual SIAP copies may be obtained from:
1. FAA Public Inquiry Center (APA-200), FAA Headquarters Building,
800 Independence Avenue, SW., Washington, DC 20591; or
2. The FAA Regional Office of the region in which the affected
airport is located.
By Subscription
Copies of all SIAPs, mailed once every 2 weeks, are for sale by the
[[Page 7701]]
Superintendent of Documents, US Government Printing Office, Washington,
DC 20402.
FOR FURTHER INFORMATION CONTACT:
Paul J. Best, Flight Procedures Standards Branch (AFS-420), Technical
Programs Division, Flight Standards Service, Federal Aviation
Administration, 800 Independence Avenue, SW., Washington, DC 20591;
telephone (202) 267-8277.
SUPPLEMENTARY INFORMATION: This amendment to part 97 of the Federal
Aviation Regulations (14 CFR part 97) establishes, amends, suspends, or
revokes Standard Instrument Approach Procedures (SIAPs). The complete
regulatory description on each SIAP is contained in the appropriate FAA
Form 8260 and the National Flight Data Center (FDC)/Permanent (P)
Notices to Airmen (NOTAM) which are incorporated by reference in the
amendment under 5 U.S.C. 552(a), 1 CFR part 51, and Sec. 97.20 of the
Federal Aviation Regulations (FAR). Materials incorporated by reference
are available for examination or purchase as stated above.
The large number of SIAPs, their complex nature, and the need for a
special format make their verbatim publication in the Federal Register
expensive and impractical. Further, airmen do not use the regulatory
text of the SIAPs, but refer to their graphic depiction of charts
printed by publishers of aeronautical materials. Thus, the advantages
of incorporation by reference are realized and publication of the
complete description of each SIAP contained in FAA form documents is
unnecessary. The provisions of this amendment state the affected CFR
(and FAR) sections, with the types and effective dates of the SIAPs.
This amendment also identifies the airport, its location, the procedure
identification and the amendment number.
The Rule
This amendment to part 97 of the Federal Aviation Regulations (14
CFR part 97) establishes, amends, suspends, or revokes SIAPs. For
safety and timeliness of change considerations, this amendment
incorporates only specific changes contained in the content of the
following FDC/P NOTAM for each SIAP. The SIAP information in some
previously designated FDC/Temporary (FDC/T) NOTAMs is of such duration
as to be permanent. With conversion to FDC/P NOTAMs, the respective
FDC/T NOTAMs have been cancelled.
The FDC/P NOTAMs for the SIAPs contained in this amendment are
based on the criteria contained in the U.S. Standard for Terminal
Instrument Approach Procedures (TERPS). In developing these chart
changes to SIAPs by FDC/P NOTAMs, the TERPS criteria were applied to
only these specific conditions existing at the affected airports. All
SIAP amendments in this rule have been previously issued by the FAA in
a National Flight Data Center (FDC) Notice to Airmen (NOTAM) as an
emergency action of immediate flight safety relating directly to
published aeronautical charts. The circumstances which created the need
for all these SIAP amendments requires making them effective in less
than 30 days.
Further, the SIAPs contained in this amendment are based on the
criteria contained in the TERPS. Because of the close and immediate
relationship between these SIAPs and safety in air commerce, I find
that notice and public procedure before adopting these SIAPs are
impracticable and contrary to the public interest and, where
applicable, that good cause exists for making these SIAPs effective in
less than 30 days.
Conclusion
The FAA has determined that this regulation only involves an
established body of technical regulations for which frequent and
routine amendments are necessary to keep them operationally current.
It, therefore--(1) is not a ``significant regulatory action'' under
Executive Order 12866; (2) is not a ``significant rule'' under DOT
Regulatory Policies and Procedures (44 FR 11034; February 26, 1979);
and (3) does not warrant preparation of a regulatory evaluation as the
anticipated impact is so minimal. For the same reason, the FAA
certifies that this amendment will not have a significant economic
impact on a substantial number of small entities under the criteria of
the Regulatory Flexibility Act.
List of Subjects in 14 CFR Part 97
Air Traffic Control, Airports, Navigation (Air).
Issued in Washington, DC on February 23, 1996.
Thomas C. Accardi,
Director, Flight Standards Service.
Adoption of the Amendment
Accordingly, pursuant to the authority delegated to me, part 97 of
the Federal Aviation Regulations (14 CFR part 97) is amended by
establishing, amending, suspending, or revoking Standard Instrument
Approach Procedures, effective at 0901 UTC on the dates specified, as
follows:
PART 97--STANDARD INSTRUMENT APPROACH PROCEDURES
1. The authority citation for part 97 is revised to read as
follows:
Authority: 49 U.S.C. 40103, 40113, 40120, 44701; 49 U.S.C.
106(g); and 14 CFR 11.49(b)(2).
2. Part 97 is amended to reads as follows:
Secs. 97.23, 97.25, 97.27, 97.29, 97.31, 97.33, 97.35 [Amended]
By amending: Sec. 97.23 VOR, VOR/DME, VOR or TACAN, and VOR/DME or
TACAN; Sec. 97.25 LOC, LOC/DME, LDA, LDA/DME, SDF, SDF/DME; Sec. 97.27
NDB, NDB/DME; Sec. 97.29 ILS, ILS/DME, ISMLS, MLS, MLS/DME, MLS/RNAV;
Sec. 97.31 RADAR SIAPs; Sec. 97.33 RNAV SIAPs; and Sec. 97.35 COPTER
SIAPs, identified as follows:
* * * Effective Upon Publication
--------------------------------------------------------------------------------------------------------------------------------------------------------
FDC date State City Airport FDC No. SIAP
--------------------------------------------------------------------------------------------------------------------------------------------------------
02/09/96............. TN Memphis............. Memphis Intl........ FDC 6/0926 ILS RWY 36L AMDT 11. . .
02/09/96............. TX Fort Worth.......... Fort Worth Meacham FDC 6/0929 ILS RWY 16L, AMDT 5. . .
Intl.
02/10/96............. WV Lewisburg........... Greenbrier Valley... FDC 6/0955 ILS RWY 4 AMDT 7A. . .
02/12/96............. TX Fort Worth.......... Fort Worth Meacham FDC 6/0973 NDB OR GPS RWY 16L, AMDT 3. . .
Intl.
02/12/96............. TX Fort Worth.......... Fort Worth Meacham FDC 6/0974 NDB OR GPS RWY 34R, AMDT 5. . .
Intl.
02/13/96............. MN Brainerd............ Brainerd-Crow Wing FDC 6/0999 ILS RWY 23 AMDT 4. . .
County Regional.
02/13/96............. MN Brainerd............ Brainerd-Crow Wing FDC 6/1000 VOR/DME RWY 12 AMDT 8. . .
County Regional.
02/14/96............. MN Cambridge........... Cambridge Muni...... FDC 6/1009 NDB OR GPS RWY 34 AMDT 6. . .
[[Page 7702]]
02/14/96............. NE Falls City.......... Brenner Field....... FDC 6/1017 NDB OR GPS-A, AMDT 3. . .
02/14/96............. TX Fort Worth.......... Fort Worth Meacham FDC 6/1023 LOC BC RWY 34R, AMDT 7. . .
Intl.
02/15/96............. CA Lakeport............ Lampson Field....... FDC 6/1036 NDB OR GPS-A ORIG-A. . .
02/20/96............. CA Victorville......... Southern California FDC 6/1111 ILS RWY 17 ORIG. . .
Intl.
--------------------------------------------------------------------------------------------------------------------------------------------------------
FR Doc. 96-4688 Filed 2-28-96; 8:45 am]
BILLING CODE 4910-13-M
Complete official Federal Register PDF
FR Doc. 96-4687 Standard Instrument Approach Procedures; Miscellaneous Amendments
[Federal Register Volume 61, Number 41 (Thursday, February 29, 1996)]
[Rules and Regulations]
[Pages 7698-7699]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-4687]
-----------------------------------------------------------------------
DEPARTMENT OF TRANSPORTATION
14 CFR Part 97
[Docket No. 28475; Amdt. No. 1712]
Standard Instrument Approach Procedures; Miscellaneous Amendments
AGENCY: Federal Aviation Administration (FAA), DOT.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: This amendment establishes, amends, suspends, or revokes
Standard Instrument Approach Procedures (SIAPs) for operations at
certain airports. These regulatory actions are needed because of the
adoption of new or revised criteria, or because of changes occurring in
the National Airspace System, such as the commissioning of new
navigational facilities, addition of new obstacles, or changes in air
traffic requirements. These changes are designed to provide safe and
efficient use of the navigable airspace and to promote safe flight
operations under instrument flight rules at the affected airports.
DATES: An effective date for each SIAP is specified in the amendatory
provisions.
Incorporation by reference--approved by the Director of the Federal
Register on December 31, 1980, and reapproved as of January 1, 1982.
ADDRESSES: Availability of matters incorporated by reference in the
amendment is as follows:
For Examination--
1. FAA Rules Docket, FAA Headquarters Building, 800 Independence
Avenue, SW., Washington, DC 20591;
2. The FAA Regional Office of the region in which the affected
airport is located; or
3. The Flight Inspection Area Office which originated the SIAP.
For Purchase--Individual SIAP copies may be obtained from:
1. FAA Public Inquiry Center (APA-200), FAA Headquarters Building,
800 Independence Avenue, SW., Washington, DC 20591; or
2. The FAA Regional Office of the region in which the affected
airport is located.
By Subscription--Copies of all SIAPs, mailed once every 2 weeks,
are for sale by the Superintendent of Documents, U.S. Government
Printing Office, Washington, DC 20402.
FOR FURTHER INFORMATION CONTACT:
Paul J. Best, Flight Procedures Standards Branch (AFS-420), Technical
Programs Division, Flight Standards Service, Federal Aviation
Administration, 800 Independence Avenue SW., Washington, DC 20591;
telephone (202) 267-8277.
SUPPLEMENTARY INFORMATION: This amendment to part 97 of the Federal
Aviation Regulations (14 CFR part 97) establishes, amends, suspends, or
revokes Standard Instrument Approach Procedures (SIAPs). The complete
regulatory description of each SIAP is contained in official FAA form
documents which are incorporated by reference in this amendment under 5
U.S.C. 552(a), 1 CFR part 51, and Sec. 97.20 of the Federal Aviation
Regulations (FAR). The applicable FAA Forms are identified as FAA Forms
8260-3, 8260-4, and 8260-5. Materials incorporated by reference are
available for examination or purchase as stated above.
The large number of SIAPs, their complex nature, and the need for a
special format make their verbatim publication in the Federal Register
expensive and impractical. Further, airmen do not use the regulatory
text of the SIAPs, but refer to their graphic depiction on charts
printed by publishers of aeronautical materials. Thus, the advantages
of incorporation by reference are realized and publication of the
complete description of each SIAP contained in FAA form documents is
unnecessary. The provisions of this amendment state the affected CFR
(and FAR) sections, with the types and effective dates of the SIAPs.
This amendment also identifies the airport, its location, the procedure
identification and the amendment number.
The Rule
The amendment to part 97 is effective upon publication of each
separate SIAP as contained in the transmittal. Some SIAP amendments may
have been previously issued by the FAA in a National Flight Data Center
(FDC) Notice to Airmen (NOTAM) as an emergency action of immediate
flight safety relating directly to published aeronautical charts. The
circumstances which created the need for some SIAP amendments may
require making them effective in less than 30 days. For the remaining
SIAPs, an effective date at least 30 days after publication is
provided.
Further, the SIAPs contained in this amendment are based on the
criteria contained in the U.S. Standard for Terminal Instrument
Approach Procedures (TERPS). In developing these SIAPs, the TERPS
criteria were applied to the conditions existing or anticipated at the
affected airports. Because of the close and immediate relationship
between these SIAPs and safety in air commerce, I find that notice and
public procedure before adopting these SIAPs are impracticable and
contrary to the public interest and, where applicable, that good cause
exists for making some SIAPs effective in less than 30 days.
The FAA has determined that this regulation only involves an
established body of technical regulations for which frequent and
routine amendments are necessary to keep them operationally current.
It, therefore--(1) is not a ``significant regulatory action'' under
Executive Order 12866; (2) is not a ``significant rule'' under DOT
Regulatory Policies and Procedures (44 FR 11034; February 26, 1979);
and (3) does not warrant preparation of a regulatory evaluation as the
anticipated impact is so minimal. For the same reason, the FAA
certifies that this amendment will not have a significant economic
impact on a substantial number of small entities under the criteria of
the Regulatory Flexibility Act.
List of Subjects in 14 CFR Part 97
Air Traffic Control, Airports, Navigation (Air).
Issued in Washington, DC on February 23, 1996.
Thomas C. Accardi,
Director, Flight Standards Service.
Adoption of the Amendment
Accordingly, pursuant to the authority delegated to me, part 97 of
the Federal Aviation Regulations (14 CFR part 97) is amended by
establishing, amending, suspending, or revoking Standard Instrument
Approach Procedures, effective at 0901 UTC on the dates specified, as
follows:
PART 97--STANDARD INSTRUMENT APPROACH PROCEDURES
1. The authority citation for part 97 is revised to read as
follows:
Authority: 49 U.S.C. 106(g), 40103, 40113, 40120, 44701; and 14
CFR 11.49(b)(2).
2. Part 97 is amended to read as follows:
Sec. 97.23, Sec. 97.25, Sec. 97.27, Sec. 97.29, Sec. 97.31, Sec. 97.33,
Sec. 97.35--[Amended]
By amending: Sec. 97.23 VOR, VOR/DME, VOR or TACAN, and VOR/DME
[[Page 7699]]
or TACAN; Sec. 97.25 LOC, LOC/DME, LDA, LDA/DME, SDF, SDF/DME;
Sec. 97.27 NDB, NDB/DME; Sec. 97.29 ILS, ILS/DME, ISMLS, MLS, MLS/DME,
MLS/RNAV; Sec. 97.31 RADAR SIAPs; Sec. 97.33 RNAV SIAPs; and Sec. 97.35
COPTER SIAPs, identified as follows:
* * * Effective April 25, 1996
Searcy, AR, Searcy Municipal, GPS RWY 19, Amdt 1
Mesa, AZ, Falcon Fld, GPS RWY 4R, Orig
Colorado Springs, CO, City of Colorado Springs Muni, GPS RWY 17L,
Orig
Colorado Springs, CO, City of Colorado Springs Muni, GPS RWY 35L,
Orig
Colorado Springs, CO, City of Colorado Springs Muni, GPS RWY 35R,
Orig
Rifle, CO, Garfield County Regional, GPS RWY 8, Orig
Kokomo, IN, Kokomo Muni, VOR or GPS RWY 32, Amdt 19
Kokomo, IN, Kokomo Muni, VOR/DME or GPS RWY 23, Amdt 19
Kokomo, IN, Kokomo Muni, ILS RWY 23, Amdt 8
Kokomo, IN, Kokomo Muni, VOR/DME RNAV or GPS RWY 5, Amdt 5
De Quincy, LA, De Quincy Industrial Airpark, GPS RWY 15, Orig
De Quincy, LA, De Quincy Industrial Airpark, GPS RWY 33, Orig
Eunice, LA, Eunice, GPS RWY 34, Orig
Opelousas, LA, St Landry Parish-Ahart Field, GPS RWY 35, Orig
Winnfield, LA, David G. Joyce, GPS RWY 26, Orig
Big Rapids, MI, Roben-Hood, VOR/DME or GPS-A, Amdt 7
Winona, MN, Winona Muni-Max Conrad Field, GPS RWY 29, Orig
Lovelock, NV, Derby Field, GPS RWY 1, Orig
Alamogordo, NM, Alamogorado-White Sands Regional, GPS RWY 3, Orig
Clovis, NM, Clovis Muni, GPS RWY 30, Orig
Tucumcari, NM, Tucumcari Muni, GPS RWY 3, Orig
Zuni Pueblo, NM, Black Rock, GPS RWY 7, Orig
Portland, OR, Portland Intl, LOC/DME RWY 10L, Orig
Dayton, TN, Mark Anton, GPS RWY 21, Orig
Burnet, TX, Burnet Muni Kate Craddock Field, GPS RWY 1, Orig
Clarksville, VA, Marks Muni, VOR/DME-A, Orig
Fond Du Lac, WI, Fond Du Lac County, GPS RWY 36, Orig
* * * Effective Upon Publication
Hagerstown, MD, Washington County Regional, ILS RWY 27, Amdt 7
Santa Fe, NM, Santa Fe County Muni, VOR/DME-A, Amdt 1
Santa Fe, NM, Santa Fe County Muni, VOR OR GPS RWY 33, Amdt 9
Santa Fe, NM, Santa Fe County Muni, NDB RWY 2, Amdt 4
Santa Fe, NM, Santa Fe County Muni, ILS RWY 2, Amdt 5
Note: The FAA published procedures in Docket No. 28461; Amdt.
No. 1710 to Part 97 of the Federal Aviation Regulations (VOL. 61 FR
No. 33 Page 6108; dated Feb. 16, 1996) under Section 97.31 which are
hereby amended as follows:
Charlotte, NC, Charlotte/Douglas Intl, RADAR-1, Amdt 19A, CANCELLED;
Effective 25 APR 96.
Gastonia, NC, Gastonia Muni, RADAR-1 Amdt 4A, CANCELLED; Effective
28 MAR 96.
[FR Doc. 96-4687 Filed 2-28-96; 8:45 am]
BILLING CODE 4910-13-M
Complete official Federal Register PDF
FR Doc. 96-4686 Medical Standards and Certification
[Federal Register Volume 61, Number 41 (Thursday, February 29, 1996)]
[Rules and Regulations]
[Pages 7695-7697]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-4686]
-----------------------------------------------------------------------
DEPARTMENT OF TRANSPORTATION
14 CFR Part 67
[Docket No. 27890]
RIN 2120-AF42
Medical Standards and Certification
AGENCY: Federal Aviation Administration, DOT.
ACTION: Final rule; disposition of comments.
-----------------------------------------------------------------------
SUMMARY: On September 9, 1994, the Federal Aviation Administration
(FAA) issued an emergency final rule amending the general medical
standard for first-, second-, and third-class airman medical
certificates. The FAA, in the same document, sought public comment on
the final rule. This document disposes of the comments received in
response to that rule.
[[Page 7696]]
ADDRESSES: Comments submitted in response to this rulemaking may be
examined at the Federal Aviation Administration, Office of the Chief
Counsel, Rules Docket, room 915-G, 800 Independence Avenue SW.,
Washington, DC, weekdays (except Federal holidays) between 830 a.m. and
5 p.m.
FOR FURTHER INFORMATION CONTACT:
Tina Lombard, Aeromedical Standards Branch, (AAM-210), Office of
Aviation Medicine, Federal Aviation Administration, 800 Independence
Avenue SW., Washington, DC 20591; telephone (202) 267-9655.
SUPPLEMENTARY INFORMATION:
Background
The general medical standard for the three classes of airman
medical certificates is detailed in part 67 of Title 14 of the Code of
Federal Regulations (14 CFR part 67). A first-class medical certificate
is required to exercise the privileges of an airline transport pilot
certificate, while second- and third-class medical certificates are
required to exercise the privileges of commercial and private pilot
certificates, respectively. An applicant who is found to meet the
appropriate medical standards is entitled to a medical certificate
without restrictions other than the limit of its duration as prescribed
in 14 CFR part 67.
An applicant may be ineligible for certification under
Secs. 67.13(f)(2), 67.15(f)(2), or 67.17(f)(2) if that person has an
organic, functional, or structural disease, defect, or limitation that
the Federal Air Surgeon finds: (1) makes the applicant unable to safely
perform the duties or exercise the privileges of the airman certificate
the applicant holds or for which the applicant is applying, or (2) may
reasonably be expected within 2 years of Federal Air Surgeon's finding
to make the applicant unable to safely perform those duties or exercise
those privileges.
Paragraph (f)(2) of Secs. 67.13, 67.15, and 67.17 provides the
historical basis for denying medical certification in cases where the
Federal Air Surgeon has determined that an applicant's medication or
other treatment (including prescription, over-the-counter, and
nontraditional medication or other treatment remedies) interferes with
the applicant's ability to safely perform the duties, or exercise the
privileges, of the airman certificate for which the airman is applying
or holds.
Notwithstanding the FAA's long-standing medical certification
policy and practice regarding medication and other treatment, the U.S.
Court of Appeals for the Seventh Circuit determined that paragraph
(f)(2) did not provide a basis for denial of medical certification
based on medication alone. Bullwinkel v. Federal Aviation
Administration, 23 F.3d 167, (7th Cir., reh'g. denied). The Seventh
Circuit's decision that medication alone was not covered by paragraph
(f)(2) raised serious safety concerns within the FAA. As a result of
those concerns, the FAA on September 9, 1994, promulgated an emergency
final rule that was immediately effective to clarify and codify the
FAA's policy regarding an individual who holds, or is applying for, an
airman medical certificate in a case where medication or other
treatment was found to interfere, or may reasonably be expected to
interfere, with that individual's ability to safely perform airman
duties (57 FR 46706).
The September 9, 1994, emergency final rule amended paragraph (f)
of Secs. 67.13, 67.15, and 67.17 by adding to each a new paragraph (3),
which sets out the standard for certification where medication or other
treatment is involved. Each paragraph (f)(3) made ineligible for
unrestricted medical certification any applicant whose medication or
other treatment is found by the Federal Air Surgeon to make, or may
reasonably be expected to make with 2 years after the finding, that
applicant unable to safely perform the duties or exercise the
privileges of his or her airman certificate. The final rule did not
change the FAA's current and long-standing application of the medical
certification standards. Rather, its sole purpose was to expressly
codify the agency's practice in light of the Bullwinkel decision.
Also, for continuity with the current administration of other
medical certification procedures, reference to this emergency final
rule was added by revising Sec. 67.25, Delegation of authority, and
Sec. 67.27, Denial of medical certificate.
The FAA invited public comment on the final rule and established a
60-day comment period, which closed on November 8, 1994.
Discussion of Comments
The FAA received six comments in response to the emergency final
rule; four comments opposed and two comments supported the rule. The
commenters included five individuals and one association, the Aerospace
Medical Association (ASMA).
One commenter states that the FAA was wrong to amend the rules
because of a single case. The commenter suggests that a better standard
would be to list those drugs in the regulations that would be
considered automatically disqualifying or potentially disqualifying.
One commenter characterizes the rule as a major change and objects
to it being issued as a final rule without prior public comment. He
suggests that the FAA rescind the final rule and schedule the subject
for a notice of proposed rulemaking.
One commenter states that his third-class medical certificate was
revoked because he was taking a medication to control symptoms of
bipolar disorder. He contends that the matter of disqualification
should be based solely on the underlying medical condition. He further
contends that medication can control symptoms for approximately 80
percent of people with the disorder. The commenter concludes that
patients taking certain medications for bipolar disorder are
``effectively cured'' of the underlying condition and should be
eligible for medical certification.
One commenter states that there was no cause for issuing an
emergency rule and that the FAA's policy was shown in court to be
contrary to law. He contends that the FAA's choice of rulemaking
procedure was improper. Further, he objects that the September 9, 1994,
final rule does not specify the names of all disqualifying medication
or treatment which the rule encompasses. He states that the rule
enables the FAA to make judgments which may be arbitrary or
unreasonable. The commenter suggests that this rulemaking action should
have been contained in an overall revision of parts 61 and 67.
The ASMA states that it strongly supports the final rule. Further,
the ASMA concurs with the dissenting opinion in the Bullwinkel case in
that the general medical standard of the airman medical standards
should be viewed as including all elements of medicine, i.e.,
medication and other treatments.
One commenter agrees with the FAA's action but expresses concern
about the change in the rules without benefit of prior public comment.
FAA Response
The FAA's rationale for issuing this emergency final rule is fully
set out in the preamble to the rule published at 59 FR 46706 on
September 9, 1994.
As stated in the preamble to the final rule, the FAA determined an
emergency existed that required immediate action; that determination is
unchanged by the comments. A delay could have had an adverse effect on
aviation safety. Neither a notice of proposed rulemaking nor
incorporation of the amendment into a possible part 67 revision, as
proposed
[[Page 7697]]
by commenters, was determined to be in the public interest.
As to the commenters' call for a ``list'' of disqualifying
medications, the Federal Air Surgeon has determined that an exhaustive
``listing'' of specific medications or specific treatments to determine
an airman's eligibility is not possible. All the positive and negative
effects of any medication or treatment are rarely appreciated when
first introduced. In some cases, substantial amounts of time may pass
before a particular drug or treatment can be judged with confidence,
particularly with its application to individuals in the aviation
environment. Because of the continuous changes in the field of medicine
and pharmacology, the FAA has determined that publishing a static list
of disqualifying medication is not appropriate or practical.
In case where an individual has been determined to have a
disqualifying condition and/or use a disqualifying medication or other
treatment and requests special issuance of a medical certificate, the
Federal Air Surgeon considers not only all relevant scientific data on
the particular condition and/or medication or other treatment but also
the individual's particular situation and the role that he/she will
perform in aviation. The case-by-case review can and does result in
instances where the particular condition and/or medication or other
treatment precludes the affected individual from receiving even an
individually tailored special issuance medical certificate. Conversely,
with the availability of new data and experience, some similarly
affected individuals may, by adjustments in their medication dosage or
other treatment, or restrictions in their privileges, for example,
receive special issuance of medical certificates.
Because this careful analysis of each special issuance case is
frequently not fully appreciated, the perception exists that many
conditions and/or medications or other treatment are always
disqualifying. In fact, with the availability of new data and
experience, the Federal Air Surgeon has found it safe to issue special
medical certificates to the majority of those individuals who
historically were always denied. But, as there are literally hundreds
of diagnoses, medications, and other treatments, as well as thousands
of combinations that frequently change over time, the FAA cannot, as a
practical matter, produce a ``list'' of medications and/or treatments
that would be considered disqualifying or, conversely, acceptable for
airman medical certification.
While at any point in time there may be treatment and medications
that preclude the special issuance of a medical certificate, the FAA
will continue to seek public comment, when appropriate, as it has done
recently concerning insulin-using diabetics (see 59 FR 67426, September
29, 1994), to assist the Federal Air Surgeon in formulating policy on
the special issuance of medical certificates.
Finally, the Bullwinkel decision highlighted a deficit in FAA
procedures that the emergency final rule has now corrected; the agency
does not view the decision as finding the policy and practice of the
FAA to be ``contrary to law'' as characterized by one commenter. The
rule change clarifies and resolves any previous ambiguity in FAA's
medical standards regarding medication and/or other treatment.
Conclusion
Accordingly, after careful consideration of all the comments
submitted, the FAA has determined that no further rulemaking action is
warranted.
Issued in Washington, DC, on February 23, 1996.
Jon L. Jordan,
Federal Air Surgeon.
[FR Doc. 96-4686 Filed 2-28-96; 8:45 am]
BILLING CODE 4910-13-M
Complete official Federal Register PDF
FR Doc. 96-4679 Streamlining Public Housing Maintenance and Operation Rules
[Federal Register Volume 61, Number 41 (Thursday, February 29, 1996)]
[Rules and Regulations]
[Pages 7966-7973]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-4679]
[[Page 7965]]
_______________________________________________________________________
Part IX
Department of Housing and Urban Development
_______________________________________________________________________
Office of the Assistant Secretary for Community Planning and
Development
_______________________________________________________________________
24 CFR Part 965
Streamlining Public Housing Maintenance and Operation Rules; Final Rule
Federal Register / Vol. 61, No. 41 / Thursday, February 29, 1996 /
Rules and Regulations
[[Page 7966]]
DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT
Office of the Assistant Secretary for Public and Indian Housing
24 CFR Part 965
[Docket No. FR-3928-F-02]
RIN 2577-AB55
Streamlining Public Housing Maintenance and Operation Rules
AGENCY: Office of the Assistant Secretary for Public and Indian
Housing, HUD.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: This final rule amends HUD's regulations in 24 CFR part 965 on
public housing maintenance and operations to streamline and simplify
necessary requirements and to eliminate unnecessary requirements. This
final rule takes into consideration comments received on the September
25, 1995 proposed rule.
EFFECTIVE DATE: April 29, 1996.
FOR FURTHER INFORMATION CONTACT: William C. Thorson, Director,
Administration and Maintenance Division, Office of Public Housing
Management, Room 4214, U.S. Department of Housing and Urban
Development, 451 Seventh Street, SW, Washington, DC 20410. Telephone
(202) 708-4703; Hearing- or speech-impaired persons may use the
Telecommunications Devices for the Deaf (TDD) by contacting the Federal
Information Relay Service on 1-800-877-TDDY (1-800-877-8339) or (202)
708-9300. (Other than the ``800'' TDD number, the telephone numbers are
not toll-free.)
SUPPLEMENTARY INFORMATION:
I. Background
In accordance with President Clinton's regulatory reinvention
efforts and Executive Order 12866 (Regulatory Planning and Review)
issued by President Clinton on September 30, 1993, HUD commenced a
comprehensive review of all of its regulations to determine which
regulations could be eliminated and streamlined. One such review was
with respect to 24 CFR 965, PHA-Owned or Leased Projects-Maintenance
and Operation.
HUD published a proposed rule on September 25, 1995 (60 FR 49480)
announcing its intention to (1) eliminate one subpart F--Modernization
of Oil Fired Heating Plants, (2) simplify and revise subpart C--Energy
Audits and Energy Conservation Measures, subpart D--Individual Metering
of Utilities for Existing PHA-Owned Projects, and subpart E--Tenant
Allowances for Utilities, (3) consolidate two subparts, subpart A--
Preemption of State Prevailing Wage Requirements With Respect to
Maintenance and Operation and subpart H--Lead- Based Paint Poisoning
Prevention, applicable to other housing programs in a new ``general''
part that will be applicable to all programs, (4) revise subpart I--
Fire Safety at a later date to reflect new statutory requirements and
(5) make only a minor technical change to subpart B--Required Insurance
Coverage.
II. Differences Between This Final Rule and September 25, 1995 Proposed
Rule
Intervening events have changed the need for some of these changes.
Subpart F was removed by another rulemaking that eliminated obsolete
provisions, 61 FR 47263. Subpart A is being amended by a pending
rulemaking that focuses primarily on streamlining public and Indian
housing modernization regulations. Therefore, this final rule focuses
on making the changes to simplify subparts C, D, and E.
Four changes were made at this final rule stage to the revisions
proposed in the rule published on September 25, 1995.
1. The Department has revised Sec. 965.407 to require that PHAs
with mastermeter systems must reevaluate these systems by making a
cost-benefit analysis at least every 5 years. The final rule changes
the period from 36 months to 5 years to be consistent with the energy
audit and the Comprehensive Grant Program five year plan.
2. The Department has revised Sec. 965.503 to streamline the
paragraph by eliminating the unnecessary language in the last sentence
which goes beyond the basic requirement.
3. The Department has revised Sec. 965.504(b) to streamline the
paragraph by eliminating unnecessary descriptive language beyond the
basic requirement.
4. The Department has revised Sec. 965.507(b) to clarify that
increases in utility allowances due to rate changes are not subject to
the 60-day notice requirement in Sec. 965.502(c).
III. Discussion of Public Comments on Proposed Rule
The Department received public comments from ten organizations
(seven public housing agencies (PHAs), one PHA trade organization and
two labor organizations) in response to the September 25, 1995 proposed
rule. One PHA commended HUD's efforts in simplifying part 965,
recommending no revisions. The following discussion summarizes the
remaining comments and provides HUD's responses to those comments.
Subpart A--Preemption of State Prevailing Wage Requirements With
Respect to Maintenance and Operation of Projects
Comment: While two PHAs concurred with the decision to retain this
subpart, two labor organizations strongly objected. Both organizations
cited their opposition to the rule when it was originally issued in
1988. They contended that lower rates do not equate to lower project
costs and that the capacity of the U.S. Department of Labor to produce
timely and accurate wage reports is questionable because of budget
cuts. One organization also suggested that the rule creates an unfunded
mandate upon the States.
Response: The Department appreciates the positions of the two labor
organizations. However, the Department points out that this issue was
the subject of considerable debate at the time the proposed and final
rules were issued in 1987/1988. It was also, as one of the
organizations correctly pointed out, challenged in the courts. The
court found in favor of the Department. The Department continues to
believe that the rule is in the best interest of the program and
declines to eliminate this subpart.
Subpart C--Energy Audits and Energy Conservation Measures
Comment: One PHA and a PHA trade organization suggested that HUD
should not require all PHAs, regardless of size or performance, to
conduct energy audits and undertake energy conservation measures. The
commenter suggested that standard and high performing PHAs and PHAs
with fewer than 250 units should be exempt unless there is evidence
that intervention by HUD is required on energy conservation issues.
Alternatively, it was recommended that if HUD requires all PHAs to
conduct the described activities, it should guarantee funding. Another
PHA raised similar concerns about funding of audits.
Response: First, it should be noted that HUD pays operating
subsidies through the Performance Funding System (PFS) (24 CFR part
990) for HAs that are not able to cover all operating costs, including
utilities, through rents charged to residents. Currently, the utility
component of the operating subsidy now exceeds $1 billion annually. The
appropriation for operating subsidy for Fiscal Years 1994 and 1995 was
only sufficient to fund
[[Page 7967]]
PHAs at 95 and 96 percent, respectively, of their eligibility level. It
is not guaranteed that future appropriations will result in a higher
percentage funding. Hence, the Department must ensure that PHAs conduct
audits as one means of holding down operating costs, including the cost
of utilities, and ensuring that the limited funds available for
operations are used as efficiently as possible.
It is erroneous to assume that a designation as a standard or high
performer under the Public Housing Management Assessment Program
automatically equates to having a good energy management program. HUD's
Office of Inspector General (OIG) recently completed an Audit Report
entitled ``Review of Opportunities To Reduce Utility Costs At Public
Housing Authorities.'' The OIG report was based on visits to
approximately 63 PHAs, which manage 41 percent of the 1.3 million
public housing units nationally. The OIG indicated that despite past
efforts:
Opportunities for reducing utility costs continue to exist and
are cost effective in many instances due to ongoing improvements in
technology. Housing authority managers need to be aware of,
evaluate, and give maximum consideration to these ongoing and new
opportunities when managing their utility costs. Because of
improvements in technology, managing utilities is a continuous
process that requires an ongoing energy management program.
The purpose of an energy audit is to identify the types and costs
of energy use in order to understand how energy is being used and to
identify and analyze alternatives that could substantially reduce
costs. PHAs that are effectively managing their utility consumption are
going through a dynamic process--evaluating current usage, implementing
recommendations for energy cost savings, and monitoring the results. A
good energy audit process can provide a PHA with many benefits and
insights and does not have to be very complex. In fact, some utility
companies do energy audits for free.
The Department views a regularly scheduled audit to be an essential
tool in reducing operating costs for PHAs and the Federal government.
Since the Federal government is paying the cost of operations,
including the utility costs, and the technology is constantly evolving,
it is reasonable and cost effective to require periodic energy audits
by all PHAs, regardless of size or performance. The Department
considers five year intervals to be the maximum time between regularly
scheduled audits, given the continuous changes that are occurring in
the energy industry.
It should be further noted that the requirement to perform an audit
is not new. It has been in the existing regulation for more than a
decade. The existing regulation required an audit within 36 months from
the effective date of the regulation (which was published in 1980) and
prior to a PHA's application for Comprehensive Modernization. The
proposed rule simply updates the existing requirement for the audit to
establish regular intervals when audits must be done.
HUD has eliminated most of the process-oriented requirements (e.g.,
most of the requirements in the current Secs. 965.303 and 965.304) in
favor of a results-oriented requirement (e.g., an audit performed in
accordance with State requirements). HUD also has eliminated the
provision in Sec. 965.302 of the proposed rule involving HUD approval
of energy audit standards.
A PHA can, as one commenter recommended, do the energy audit in
conjunction with its five-year action plan which is required for the
Comprehensive Grant Program. The modernization regulations are being
amended to require the incorporation of the energy conservation
measures resulting from an audit performed under this subpart.
With regard to the funding of energy audits, the Department
believes that a sound energy management program is fundamental to good
property management and that energy audits are a cost of doing business
that should be included as a part of an agency's operating budget. For
that reason, the final rule, in keeping with the existing rule,
provides that the audit is to be paid out of operating funds to the
extent feasible, and, where operating funds are insufficient, the cost
of the audit is an eligible cost for inclusion in a modernization
program. The Department disagrees that this existing requirement
represents an unfunded mandate.
The Department recommends that PHAs give serious consideration to
Secs. 965.305(b) and 965.308 of this rule. These sections, and the
applicable sections of part 990, provide incentives for PHAs to
undertake energy improvements through energy performance contracts
using non-HUD financing. Under this arrangement, a PHA may contract
with an energy service company to do an audit of its properties and
submit a proposal for the installation of energy conservation measures
using non-HUD financing. If the proposal is approved by HUD, HUD will
freeze the three year rolling base in the utility component of the PFS
for the utilities involved. The PHA must use at least 50 percent of the
consumption savings to pay debt service on the non-HUD financing,
retaining any balance.
The PHA benefits three ways from such an arrangement: (1) It
generates additional income from the savings not used for debt service
payments; (2) energy improvements are shifted from the PHA's
modernization program to non-HUD financing, thus, enabling the PHA to
do more work with its limited modernization funds; and (3) the PHA is
able to provide a better environment for its residents. As pointed out
in the OIG report, ``energy efficiency can become a competitive
advantage for housing authorities who want to attract residents through
increased resident comfort and decreased operating costs.'' Effective
energy use becomes a more critical issue as the public housing
community faces drastic changes in the nature of how they are funded
and operate. More information regarding energy performance contracting
and incentives to reduce utility costs is contained in HUD Notice PIH
95-26, issued April 28, 1995.
Comment: The PHA trade organization suggested that if HUD continues
to require energy audits of all PHAs, it should not require that HUD
review and pre-approve all energy performance contracts, especially for
standard and high-performing PHAs. Instead, the organization suggests
that the review of such contracts should be part of the independent
public accountant (IPA) process, as the Department proposes for the
calculation of resident utility allowances.
Response: Energy performance contracting is relatively new in the
public housing community and involves a more sophisticated two-step
procurement process that most PHAs have not used and are not familiar
with. Further, HUD must agree that the proposed savings will
materialize and be sufficient to amortize the debt service in order to
commit the Department to freezing the utility component of the PFS for
periods of up to 12 years. This represents a significant financial
investment on the part of the government. For these reasons, the
Department is retaining the pre-approval of energy performance
contracts.
Comment: One PHA recommended that HUD should develop criteria to
determine which housing authorities are in need of an energy audit. HUD
should evaluate a housing authority's energy performance by comparing
consumption and cost to a standard. This evaluation would determine
which housing
[[Page 7968]]
authorities need to conduct an energy audit. The PHA contends that PHAs
send in so many reports and information to HUD that the energy
performance of a housing authority could be determined by HUD.
Response: As noted above, energy audits are an essential part of an
ongoing energy management system. Technology is constantly changing,
and it is necessary to have properties reevaluated on a regular basis.
The recommendation is to rely on HUD to make a determination after the
PHA has been determined to be energy inefficient. The Department does
not believe that this is an effective management approach, particularly
given dwindling resources for PHAs and HUD.
Further, the Department does receive consumption information for
PHAs in conjunction with the PFS. The information reflects gross
consumption and is not broken down by individual projects or buildings,
both of which can vary significantly. HUD also requests utility
information in conjunction with its routine monitoring. Such monitoring
is done only on a limited basis. As noted above, the Department does
not believe that it is a good management practice for PHAs to wait for
HUD to determine energy efficiency. Given the cost to the Department
for operations, including utilities, it will retain the audit
requirement which has been in effect since 1980.
Subpart D--Individual Metering of Utilities for Existing PHA-Owned
Projects
Comment: One PHA indicated that residents should be required to pay
for utilities and that the PHA should charge a modest rent based on the
number of bedrooms in the unit.
Response: The Department agrees that individual metering is an
important component of a complete energy management system for property
managers. However, conversions should only be mandatory if they are
cost effective, and this subpart is written accordingly. The payment of
rent by public housing residents is, by law, based on income and is not
addressed by this rule.
Comment: One PHA indicated that it agrees that individual metering
is advisable, but that PHAs are capable of implementing these steps
independent of HUD regulation. The PHA questions the change in the
requirement in the existing rule which advises the PHA to consult with
residents, whereas the proposed rule makes such consultation mandatory.
Response: The Department agrees that many PHAs are capable of
implementing the provisions contained in the rule. However, it is also
true that many PHAs are reluctant to do so to avoid confrontational
situations with the residents and the possibility of litigation which
has accompanied such conversions in the past. Also, HUD pays the
utility costs in these cases and needs to ensure that the conversions
are accomplished where it is cost effective to do so. Because of the
cost to the Federal government, the Department is retaining this
requirement. With regard to consultation, residents are both the PHA's
and the Department's ultimate customer. The Department believes the
conversion to individual metering, while a good management practice,
will nevertheless significantly impact the residents and, therefore,
they must be consulted.
Comment: One PHA noted the requirement in Sec. 965.407 for PHAs
with mastermeter systems to reevaluate these systems by making a cost-
benefit analysis at least every 36 months. The PHA recommends a five-
year cycle to be consistent with the energy audit and the Comprehensive
Grant Program five year plan.
Response: The Department agrees with this recommendation and has
made the revision in the final rule.
Subpart E--Resident Allowances for Utilities
Comment: One PHA noted that a HUD Field Office did a Utility Review
and made a finding because it was not surcharging residents for water
for a washing machine. The PHA indicates that it felt that it had a
right to determine what appliances required surcharges but notes that
the regulation does not specifically mention washing machines. The PHA
also recommended that we specifically exempt elderly high rises in the
South from the requirement to charge residents for the energy to use a
PHA-furnished air conditioner. In the instant case, the individual
units had heat pumps for each unit which provide heat and air
conditioning. The PHA did not think it was possible to establish fair
surcharges because some run the air conditioning all the time while
others only run the air conditioning occasionally.
Response: The Department agrees that if laundromats are not
available, washing machines in units are reasonable, but not without
limitation. As has been described above, the amount of operating
subsidies is limited. It is, therefore, essential that PHAs undertake
measures to conserve energy. One such way is to establish an allowance
``which reflects a reasonable consumption of utilities by an energy-
conservative household of modest circumstances * * *.'' If the utility
is paid by the PHA and the resident exceeds the allowance, the resident
must be surcharged for the excess consumption. The regulation provides
PHAs with considerable latitude in the development of allowances,
within the basic framework described above. The Department plans to
issue a guidebook in the near future to assist PHAs in developing
utility allowances.
There is considerable debate as to the extent to which air
conditioning should be considered an essential component. As noted
earlier, the cost of utilities is in excess of $1 billion annually.
Appropriations for the last two years have been, and for the
foreseeable future, will be, insufficient to fund PHAs at 100 percent
of their eligibility under the PFS. Including air conditioning in
utility allowances beyond what is already specifically authorized would
seriously and adversely impact the level of funding for other critical
services such as maintenance. This will affect all PHAs around the
nation, since it will reduce the overall amount of operating subsidy
which is fixed. The Department's approach to this difficult issue is to
allow the capital costs to be an eligible expense while requiring the
resident to pay the costs of the energy associated with its use. The
Department is retaining the language in Sec. 965.505(e) as described in
the proposed rule.
Comment: Two PHAs indicate that HUD's criteria for establishing
utility allowances as required in Sec. 965.505(d)(1) through (9) should
be simplified. One PHA indicated that the nine factors that must be
taken into account have intimidated many PHAs into commissioning
expensive engineering studies in an effort to comply. The PHA suggests
that the language be simplified to allow for the use of previous
consumption histories. Another PHA suggested that the factors be
advisory.
Response: As noted in Sec. 965.505(c), the Department leaves the
complexity and elaborateness of the methods for establishing utility
allowances to the discretion of the PHA. HUD believes that the choice
in methodology is best handled at the local level where the PHA can use
a procedure suitable to available data and local experience. As such,
the rule does not intend to require only the use of the engineering
method to establish allowances. While the Department believes that the
engineering method will more closely approximate the objective stated
in
[[Page 7969]]
Sec. 965.505(a), the consumption method is acceptable and may be
appropriate for some PHAs. The Department believes that the ``factors''
cited, which have been in effect for more than a decade, are reasonable
and necessary to be ``considered'' regardless of the methodology used
in order to meet the objective in Sec. 965.505(a).
Comment: One PHA indicated that Sec. 965.507 states that utility
allowances must be revised if the rate changes more than 10 percent
between annual reviews. Utility rates can be volatile, particularly if
a housing authority purchases a utility, such as natural gas, directly
from the well-head. This could necessitate changing utility allowances
several times during a twelve month period. The PHA recommends revision
only on an annual basis. This PHA, along with others, indicated that if
HUD wants PHAs to be competitive in the housing market, air
conditioning must be considered a legitimate cost and should be
included in the utility allowances.
Response: To the extent that the market is volatile, any savings/
cost should be passed along to the resident. The Department previously
discussed the financial impact of including air conditioning in utility
allowances. No changes are being made to this section.
Comment: One PHA noted an apparent inconsistency. Specifically,
Sec. 965.502(c) requires residents to receive a 60-day notice of any
change to the utility allowances. Section 965.507(b), on the other
hand, requires that in cases of increases in utility allowances due to
rate changes, adjustments shall be effective the first day of the month
following the month in which the last rate change taken into account in
such revision became effective. The PHA suggested that it appears that
increases due to rate changes are not subject to the 60-day notice
requirement contained in Sec. 965.502(c).
Response: The PHA is correct that revisions due to rate changes
pursuant to Sec. 965.507(b) are not subject to the 60 day notice
requirement. The Department has added clarifying language.
Other Matters
Environmental Impact
A Finding of No Significant Impact with respect to the environment
for this rule was made at the proposed rule stage in accordance with
HUD regulations at 24 CFR part 50, which implement section 102(2)(C) of
the National Environmental Policy Act of 1969. The Finding of No
Significant Impact remains applicable to this final rule and is
available for public inspection between 7:30 a.m. and 5:30 p.m.
weekdays in the Office of the Rules Docket Clerk, Office of the General
Counsel, Department of Housing and Urban Development, Room 10276, 451
Seventh Street, SW., Washington, DC 20410.
Regulatory Flexibility Act
The Secretary, in accordance with the Regulatory Flexibility Act (5
U.S.C. 605(b)), has reviewed this rule before publication and by
approving it certifies that this rule would not have a significant
economic impact on a substantial number of small entities because the
rule reduces and streamlines existing requirements. PHAs will have
fewer mandatory requirements. No new additional requirements are being
imposed by this rule.
Executive Order 12612, Federalism
The General Counsel, as the Designated Official under section 6(a)
of Executive Order 12612, Federalism, has determined that this rule
does not have ``federalism implications'' because it does not have
substantial direct effect on the States (including their political
subdivisions), or on the distribution of power and responsibilities
among the various levels of government.
Executive Order 12606, The Family
The General Counsel, as the Designated Official under Executive
Order 12606, The Family, has determined that the rule will not have a
significant impact on family formation, maintenance, and well being,
and, therefore, is not subject to review under the order. No
significant changes in existing HUD policies or programs will result
from promulgation of this rule as those policies and programs relate to
family concerns.
Catalog of Federal Domestic Assistance
The Catalog of Federal Domestic Assistance Program number assigned
to this program is 14.850.
List of Subjects in 24 CFR Part 965
Energy conservation, Government procurement, Grant programs--
housing and community development, Lead poisoning, Loan programs--
housing and community development, Public housing, Reporting and
recordkeeping requirements, Utilities.
Accordingly, 24 CFR part 965 is amended as follows:
PART 965--PHA-OWNED OR LEASED PROJECTS--MAINTENANCE AND OPERATION
1. The authority citation for part 965 continues to read as
follows:
Authority: 42 U.S.C. 1437, 1437a, 1437d, 1437g, and 3535(d).
Subpart H is also issued under 42 U.S.C. 4821-4846.
Sec. 965.205 [Amended]
2. In subpart B, in Sec. 965.205, paragraph (a) is amended by
removing the parenthetical phrase ``(in section 305 of the ACC)'' from
the first sentence that immediately follows the paragraph heading.
3. Subpart C is revised to read as follows:
Subpart C--Energy Audits and Energy Conservation Measures
Sec.
965.301 Purpose and applicability.
965.302 Requirements for energy audits.
965.303 [Reserved].
965.304 Order of funding.
965.305 Funding.
965.306 Energy conservation equipment and practices.
965.307 Compliance schedule.
965.308 Energy performance contracts.
Subpart C--Energy Audits and Energy Conservation Measures
Sec. 965.301 Purpose and applicability.
(a) Purpose. The purpose of this subpart C is to implement HUD
policies in support of national energy conservation goals by requiring
PHAs to conduct energy audits and undertake certain cost-effective
energy conservation measures.
(b) Applicability. The provisions of this subpart apply to all PHAs
with PHA-owned housing, but they do not apply to Indian Housing
Authorities. (For similar provisions applicable to Indian housing, see
part 950 of this chapter.) No PHA-leased project or Section 8 Housing
Assistance Payments Program project, including a PHA-owned Section 8
project, is covered by this subpart.
Sec. 965.302 Requirements for energy audits.
All PHAs shall complete an energy audit for each PHA-owned project
under management, not less than once every five years. Standards for
energy audits shall be equivalent to State standards for energy audits.
Energy audits shall analyze all of the energy conservation measures,
and the payback period for these measures, that are pertinent to the
type of buildings and equipment operated by the PHA.
[[Page 7970]]
Sec. 965.303 [Reserved]
Sec. 965.304 Order of funding.
Within the funds available to a PHA, energy conservation measures
should be accomplished with the shortest pay-back periods funded first.
A PHA may make adjustments to this funding order because of
insufficient funds to accomplish high-cost energy conservation measures
(ECM) or where an ECM with a longer pay-back period can be more
efficiently installed in conjunction with other planned modernization.
A PHA may not install individual utility meters that measure the energy
or fuel used for space heating in dwelling units that need substantial
weatherization, when installation of meters would result in economic
hardship for residents. In these cases, the ECMs related to
weatherization shall be accomplished before the installation of
individual utility meters.
Sec. 965.305 Funding.
(a) The cost of accomplishing cost-effective energy conservation
measures, including the cost of performing energy audits, shall be
funded from operating funds of the PHA to the extent feasible. When
sufficient operating funds are not available for this purpose, such
costs are eligible for inclusion in a modernization program, for
funding from any available development funds in the case of projects
still in development, or for other available funds that HUD may
designate to be used for energy conservation.
(b) If a PHA finances energy conservation measures from sources
other than modernization or operating reserves, such as a loan from a
utility entity or a guaranteed savings agreement with a private energy
service company, HUD may agree to provide adjustments in its
calculation of the PHA's operating subsidy eligibility under the PFS
for the project and utility involved based on a determination that
payments can be funded from the reasonably anticipated energy cost
savings (See Sec. 990.107(g) of this chapter).
Sec. 965.306 Energy conservation equipment and practices.
In purchasing original or, when needed, replacement equipment, PHAs
shall acquire only equipment that meets or exceeds the minimum
efficiency requirements established by the U.S. Department of Energy.
In the operation of their facilities, PHAs shall follow operating
practices directed to maximum energy conservation.
Sec. 965.307 Compliance schedule.
All energy conservation measures determined by energy audits to be
cost effective shall be accomplished as funds are available.
Sec. 965.308 Energy performance contracts.
(a) Method of procurement. Energy performance contracting shall be
conducted using one of the following methods of procurement:
(1) Competitive proposals (see 24 CFR 85.36(d)(3)). In identifying
the evaluation factors and their relative importance, as required by
Sec. 85.36(d)(3)(i) of this title, the solicitation shall state that
technical factors are significantly more important than price (of the
energy audit); or
(2) If the services are available only from a single source,
noncompetitive proposals (see 24 CFR 85.36(d)(4)(i)(A)).
(b) HUD Review. Solicitations for energy performance contracting
shall be submitted to the HUD Field Office for review and approval
prior to issuance. Energy performance contracts shall be submitted to
the HUD Field Office for review and approval before award.
4. Subpart D is revised to read as follows:
Subpart D--Individual Metering of Utilities for Existing PHA-Owned
Projects
Sec.
965.401 Individually metered utilities.
965.402 Benefit/cost analysis.
965.403 Funding.
965.404 Order of conversion.
965.405 Actions affecting residents.
965.406 Benefit/cost analysis for similar projects.
965.407 Reevaluations of mastermeter systems.
Subpart D--Individual Metering of Utilities for Existing PHA-Owned
Projects
Sec. 965.401 Individually metered utilities.
(a) All utility service shall be individually metered to residents,
either through provision of retail service to the residents by the
utility supplier or through the use of checkmeters, unless:
(1) Individual metering is impractical, such as in the case of a
central heating system in an apartment building;
(2) Change from a mastermetering system to individual meters would
not be financially justified based upon a benefit/cost analysis; or
(3) Checkmetering is not permissible under State or local law, or
under the policies of the particular utility supplier or public service
commission.
(b) If checkmetering is not permissible, retail service shall be
considered. Where checkmetering is permissible, the type of individual
metering offering the most savings to the PHA shall be selected.
Sec. 965.402 Benefit/cost analysis.
(a) A benefit/cost analysis shall be made to determine whether a
change from a mastermetering system to individual meters will be cost
effective, except as otherwise provided in Sec. 965.405.
(b) Proposed installation of checkmeters shall be justified on the
basis that the cost of debt service (interest and amortization) of the
estimated installation costs plus the operating costs of the
checkmeters will be more than offset by reduction in future utilities
expenditures to the PHA under the mastermeter system.
(c) Proposed conversion to retail service shall be justified on the
basis of net savings to the PHA. This determination involves making a
comparison between the reduction in utility expense obtained through
eliminating the expense to the PHA for PHA-supplied utilities and the
resultant allowance for resident-supplied utilities, based on the cost
of utility service to the residents after conversion.
Sec. 965.403 Funding.
The cost to change mastermeter systems to individual metering of
resident consumption, including the costs of benefit/cost analysis and
complete installation of checkmeters, shall be funded from operating
funds of the PHA to the extent feasible. When sufficient operating
funds are not available for this purpose, such costs are eligible for
inclusion in a modernization project or for funding from any available
development funds.
Sec. 965.404 Order of conversion.
Conversions to individually metered utility service shall be
accomplished in the following order when a PHA has projects of two or
more of the designated categories, unless the PHA has a justifiable
reason to do otherwise, which shall be documented in its files.
(a) In projects for which retail service is provided by the utility
supplier and the PHA is paying all the individual utility bills, no
benefit/cost analysis is necessary, and residents shall be billed
directly after the PHA adopts revised payment schedules providing
appropriate allowances for resident-supplied utilities.
(b) In projects for which checkmeters have been installed but are
not being utilized as the basis for determining utility charges to the
residents, no benefit/cost analysis is necessary. The checkmeters shall
be used as the basis for utility charges, and residents shall be
surcharged for excess utility use.
(c) Projects for which meter loops have been installed for
utilization of
[[Page 7971]]
checkmeters shall be analyzed both for the installation of checkmeters
and for conversion to retail service.
(d) Low- or medium-rise family units with a mastermeter system
should be analyzed for both checkmetering and conversion to retail
service, because of their large potential for energy savings.
(e) Low- or medium-rise housing for the elderly should next be
analyzed for both checkmetering and conversion to retail service, since
the potential for energy saving is less than for family units.
(f) Electric service under mastermeters for high-rise buildings,
including projects for the elderly, should be analyzed for both use of
retail service and of checkmeters.
Sec. 965.405 Actions affecting residents.
(a) Before making any conversion to retail service, the PHA shall
adopt revised payment schedules, providing appropriate allowances for
the resident-supplied utilities resulting from the conversion.
(b) Before implementing any modifications to utility services
arrangements with the residents or charges with respect thereto, the
PHA shall make the requisite changes in resident dwelling leases in
accordance with 24 CFR part 966.
(c) PHAs must work closely with resident organizations, to the
extent practicable, in making plans for conversion of utility service
to individual metering, explaining the national policy objectives of
energy conservation, the changes in charges and rent structure that
will result, and the goals of achieving an equitable structure that
will be advantageous to residents who conserve energy.
(d) A transition period of at least six months shall be provided in
the case of initiation of checkmeters, during which residents will be
advised of the charges but during which no surcharge will be made based
on the readings. This trial period will afford residents ample notice
of the effects the checkmetering system will have on their individual
utility charges and also afford a test period for the adequacy of the
utility allowances established.
(e) During and after the transition period, PHAs shall advise and
assist residents with high utility consumption on methods for reducing
their usage. This advice and assistance may include counseling,
installation of new energy conserving equipment or appliances, and
corrective maintenance.
Sec. 965.406 Benefit/cost analysis for similar projects.
PHAs with more than one project of similar design and utilities
service may prepare a benefit/cost analysis for a representative
project. A finding that a change in metering is not cost effective for
the representative project is sufficient reason for the PHA not to
perform a benefit/cost analysis on the remaining similar projects.
Sec. 965.407 Reevaluations of mastermeter systems.
Because of changes in the cost of utility services and the periodic
changes in utility regulations, PHAs with mastermeter systems are
required to reevaluate mastermeter systems without checkmeters by
making benefit/cost analyses at least every 5 years. These analyses may
be omitted under the conditions specified in Sec. 965.406.
5. Subpart E is revised to read as follows:
Subpart E--Resident Allowances for Utilities
Sec.
965.501 Applicability.
965.502 Establishment of utility allowances by PHAs.
965.503 Categories for establishment of allowances.
965.504 Period for which allowances aare established.
965.505 Standards for allowances for utilities.
965.506 Surcharges for excess consumption of PHA-furnished
utilities.
965.507 Review and revision of allowances.
965.508 Individual relief.
Subpart E--Resident Allowances for Utilities
Sec. 965.501 Applicability.
(a) This subpart E applies to public housing, including the Turnkey
III Homeownership Opportunities program. This subpart E also applies to
units assisted under sections 10(c) and 23 of the U. S. Housing Act of
1937 (42 U.S.C. 1437 et seq.) as in effect before amendment by the
Housing and Community Development Act of 1974 (12 U.S.C. 1706e) and to
which 24 CFR part 900 is not applicable. This subpart E does not apply
to Indian housing projects (see 24 CFR part 950).
(b) In rental units for which utilities are furnished by the PHA
but there are no checkmeters to measure the actual utilities
consumption of the individual units, residents shall be subject to
charges for consumption by resident-owned major appliances, or for
optional functions of PHA-furnished equipment, in accordance with
Sec. 965.502(e) and 965.506(b), but no utility allowance will be
established.
Sec. 965.502 Establishment of utility allowances by PHAs.
(a) PHAs shall establish allowances for PHA-furnished utilities for
all checkmetered utilities and allowances for resident-purchased
utilities for all utilities purchased directly by residents from the
utilities suppliers.
(b) The PHA shall maintain a record that documents the basis on
which allowances and scheduled surcharges, and revisions thereof, are
established and revised. Such record shall be available for inspection
by residents.
(c) The PHA shall give notice to all residents of proposed
allowances, scheduled surcharges, and revisions thereof. Such notice
shall be given, in the manner provided in the lease or homebuyer
agreement, not less than 60 days before the proposed effective date of
the allowances or scheduled surcharges or revisions; shall describe
with reasonable particularity the basis for determination of the
allowances, scheduled surcharges, or revisions, including a statement
of the specific items of equipment and function whose utility
consumption requirements were included in determining the amounts of
the allowances or scheduled surcharges; shall notify residents of the
place where the PHA's record maintained in accordance with paragraph
(b) of this section is available for inspection; and shall provide all
residents an opportunity to submit written comments during a period
expiring not less than 30 days before the proposed effective date of
the allowances or scheduled surcharges or revisions. Such written
comments shall be retained by the PHA and shall be available for
inspection by residents.
(d) Schedules of allowances and scheduled surcharges shall not be
subject to approval by HUD before becoming effective, but will be
reviewed in the course of audits or reviews of PHA operations.
(e) The PHA's determinations of allowances, scheduled surcharges,
and revisions thereof shall be final and valid unless found to be
arbitrary, capricious, an abuse of discretion, or otherwise not in
accordance with the law.
Sec. 965.503 Categories for establishment of allowances.
Separate allowances shall be established for each utility and for
each category of dwelling units determined by the PHA to be reasonably
comparable as to factors affecting utility usage.
Sec. 965.504 Period for which allowances are established.
(a) PHA-furnished utilities. Allowances will normally be
established on a quarterly basis; however, residents may be surcharged
on a monthly basis. The allowances
[[Page 7972]]
established may provide for seasonal variations.
(b) Resident-purchased utilities. Monthly allowances shall be
established. The allowances established may provide for seasonal
variations.
Sec. 965.505 Standards for allowances for utilities.
(a) The objective of a PHA in designing methods of establishing
utility allowances for each dwelling unit category and unit size shall
be to approximate a reasonable consumption of utilities by an energy-
conservative household of modest circumstances consistent with the
requirements of a safe, sanitary, and healthful living environment.
(b) Allowances for both PHA-furnished and resident-purchased
utilities shall be designed to include such reasonable consumption for
major equipment or for utility functions furnished by the PHA for all
residents (e.g., heating furnace, hot water heater), for essential
equipment whether or not furnished by the PHA (e.g., range and
refrigerator), and for minor items of equipment (such as toasters and
radios) furnished by residents.
(c) The complexity and elaborateness of the methods chosen by the
PHA, in its discretion, to achieve the foregoing objective will depend
upon the nature of the housing stock, data available to the PHA and the
extent of the administrative resources reasonably available to the PHA
to be devoted to the collection of such data, the formulation of
methods of calculation, and actual calculation and monitoring of the
allowances.
(d) In establishing allowances, the PHA shall take into account
relevant factors affecting consumption requirements, including:
(1) The equipment and functions intended to be covered by the
allowance for which the utility will be used. For instance, natural gas
may be used for cooking, heating domestic water, or space heating, or
any combination of the three;
(2) The climatic location of the housing projects;
(3) The size of the dwelling units and the number of occupants per
dwelling unit;
(4) Type of construction and design of the housing project;
(5) The energy efficiency of PHA-supplied appliances and equipment;
(6) The utility consumption requirements of appliances and
equipment whose reasonable consumption is intended to be covered by the
total resident payment;
(7) The physical condition, including insulation and
weatherization, of the housing project;
(8) Temperature levels intended to be maintained in the unit during
the day and at night, and in cold and warm weather; and
(9) Temperature of domestic hot water.
(e) If a PHA installs air conditioning, it shall provide, to the
maximum extent economically feasible, systems that give residents the
option of choosing to use air conditioning in their units. The design
of systems that offer each resident the option to choose air
conditioning shall include retail meters or checkmeters, and residents
shall pay for the energy used in its operation. For systems that offer
residents the option to choose air conditioning, the PHA shall not
include air conditioning in the utility allowances. For systems that
offer residents the option to choose air conditioning but cannot be
checkmetered, residents are to be surcharged in accordance with
Sec. 965.506. If an air conditioning system does not provide for
resident option, residents are not to be charged, and these systems
should be avoided whenever possible.
Sec. 965.506 Surcharges for excess consumption of PHA-furnished
utilities.
(a) For dwelling units subject to allowances for PHA-furnished
utilities where checkmeters have been installed, the PHA shall
establish surcharges for utility consumption in excess of the
allowances. Surcharges may be computed on a straight per unit of
purchase basis (e.g., cents per kilowatt hour of electricity) or for
stated blocks of excess consumption, and shall be based on the PHA's
average utility rate. The basis for calculating such surcharges shall
be described in the PHA's schedule of allowances. Changes in the dollar
amounts of surcharges based directly on changes in the PHA's average
utility rate shall not be subject to the advance notice requirements of
this section.
(b) For dwelling units served by PHA-furnished utilities where
checkmeters have not been installed, the PHA shall establish schedules
of surcharges indicating additional dollar amounts residents will be
required to pay by reason of estimated utility consumption attributable
to resident-owned major appliances or to optional functions of PHA-
furnished equipment. Such surcharge schedules shall state the resident-
owned equipment (or functions of PHA-furnished equipment) for which
surcharges shall be made and the amounts of such charges, which shall
be based on the cost to the PHA of the utility consumption estimated to
be attributable to reasonable usage of such equipment.
Sec. 965.507 Review and revision of allowances.
(a) Annual review. The PHA shall review at least annually the basis
on which utility allowances have been established and, if reasonably
required in order to continue adherence to the standards stated in
Sec. 965.505, shall establish revised allowances. The review shall
include all changes in circumstances (including completion of
modernization and/or other energy conservation measures implemented by
the PHA) indicating probability of a significant change in reasonable
consumption requirements and changes in utility rates.
(b) Revision as a result of rate changes. The PHA may revise its
allowances for resident-purchased utilities between annual reviews if
there is a rate change (including fuel adjustments) and shall be
required to do so if such change, by itself or together with prior rate
changes not adjusted for, results in a change of 10 percent or more
from the rates on which such allowances were based. Adjustments to
resident payments as a result of such changes shall be retroactive to
the first day of the month following the month in which the last rate
change taken into account in such revision became effective. Such rate
changes shall not be subject to the 60 day notice requirement of
Sec. 965.502(c).
Sec. 965.508 Individual relief.
Requests for relief from surcharges for excess consumption of PHA-
purchased utilities, or from payment of utility supplier billings in
excess of the allowances for resident-purchased utilities, may be
granted by the PHA on reasonable grounds, such as special needs of
elderly, ill or disabled residents, or special factors affecting
utility usage not within the control of the resident, as the PHA shall
deem appropriate. The PHA's criteria for granting such relief, and
procedures for requesting such relief, shall be adopted at the time the
PHA adopts the methods and procedures for determining utility
allowances. Notice of the availability of such procedures (including
identification of the PHA representative with whom initial contact may
be made by residents), and the PHA's criteria for granting such relief,
shall be included in each notice to residents given in accordance with
Sec. 965.502(c) and in the information given to new residents upon
admission.
[[Page 7973]]
Dated: February 22, 1996.
MaryAnn Russ,
Acting Assistant Secretary for Public and Indian Housing.
[FR Doc. 96-4679 Filed 2-28-96; 8:45 am]
BILLING CODE 4210-33-P
Complete official Federal Register PDF
FR Doc. 96-4678 Regulatory Reinvention: Streamlining the Housing Opportunities for Persons With AIDS Program
[Federal Register Volume 61, Number 41 (Thursday, February 29, 1996)]
[Rules and Regulations]
[Pages 7962-7964]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-4678]
[[Page 7961]]
_______________________________________________________________________
Part VIII
Department of Housing and Urban Development
_______________________________________________________________________
Office of the Assistant Secretary for Community Planning and
Development
_______________________________________________________________________
24 CFR Part 574
Regulatory Reinvention: Streamlining the Housing Opportunities for
Persons With AIDS Program; Final Rule
Federal Register / Vol. 61, No. 41 / Thursday, February 29, 1996 /
Rules and Regulations
[[Page 7962]]
DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT
Office of the Assistant Secretary for Community Planning and
Development
24 CFR Part 574
[Docket No. FR-4030-F-01]
RIN 2506-AB78
Regulatory Reinvention: Streamlining the Housing Opportunities
for Persons With AIDS Program
AGENCY: Office of the Assistant Secretary for Community Planning and
Development, HUD.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: This final rule amends HUD's regulations for the Housing
Opportunities for Persons With AIDS (HOPWA) program. In an effort to
comply with the President's regulatory reform initiatives, this rule
will streamline the HOPWA regulations by eliminating provisions that
are duplicative of statutes or are otherwise unnecessary. This final
rule will make the regulations more concise.
EFFECTIVE DATE: April 1, 1996.
FOR FURTHER INFORMATION CONTACT: Fred Karnas, Jr., Director, Office of
HIV/AIDS Housing, Room 7154, Department of Housing and Urban
Development, 451 Seventh Street, SW, Washington, DC 20410, telephone
number (202) 708-1934 (this is not a toll-free number). A
telecommunications device for hearing- and speech-impaired persons
(TDD) is available at 1-800-877-8339 (Federal Information Relay
Service).
SUPPLEMENTARY INFORMATION: On March 4, 1995, President Clinton issued a
memorandum to all Federal departments and agencies regarding regulatory
reinvention. In response to this memorandum, the Department of Housing
and Urban Development conducted a page-by-page review of its
regulations to determine which can be eliminated, consolidated, or
otherwise improved. HUD has determined that the regulations for the
HOPWA Program can be improved and streamlined by eliminating
unnecessary provisions.
Several provisions in the regulations repeat statutory language
from the AIDS Housing Opportunity Act (42 U.S.C. 12901). It is
unnecessary to maintain statutory requirements in the Code of Federal
Regulations (CFR), since those requirements are otherwise fully
accessible and binding. Furthermore, if regulations contain statutory
language, HUD must amend the regulations whenever Congress amends the
statute. Therefore, this final rule removes repetitious statutory
language and replaces it with a citation to the specific statutory
section for easy reference.
Similarly, the environmental review procedures section
(Sec. 574.510) contains language that repeats requirements that are
stated in 24 CFR 50.3. Therefore, that section is being revised to
remove the repetitive language and substitute a cross-reference to the
applicable provision in that existing rule. Removal of this language
does not alter the procedures to be followed.
In addition, some provisions in the regulations are not regulatory
requirements. For example, several sections in the regulations contain
nonbinding guidance or explanations. While this information is very
helpful to recipients, HUD will more appropriately provide this
information through handbook guidance or other materials rather than
maintain it in the CFR.
Lastly, two changes are being made to rectify an oversight when the
part was recently revised as part of a larger rulemaking (see 61 FR
5198, February 9, 1996). The waiver provision (Sec. 574.4) is removed,
since Departmental waivers were consolidated at 24 CFR part 5. The
section dealing with nondiscrimination (Sec. 574.603) is being revised
to reinsert language limiting the application of the provision to
persons who are otherwise eligible for the program, i.e., persons who
have AIDS or related diseases and their families.
Justification for Final Rulemaking
HUD generally publishes a rule for public comment before issuing a
rule for effect, in accordance with its own regulations on rulemaking
in 24 CFR part 10. However, part 10 provides for exceptions to the
general rule if the agency finds good cause to omit advance notice and
public participation. The good cause requirement is satisfied when
prior public procedure is ``impracticable, unnecessary, or contrary to
the public interest'' (24 CFR 10.1). HUD finds that good cause exists
to publish this rule for effect without first soliciting public
comment. This rule merely removes unnecessary regulatory provisions and
does not establish or affect substantive policy. Therefore, prior
public comment is unnecessary.
Other Matters
Regulatory Flexibility Act
The Secretary, in accordance with the Regulatory Flexibility Act (5
U.S.C. 605(b)), has reviewed and approved this final rule, and in so
doing certifies that this rule will not have a significant economic
impact on a substantial number of small entities. This rule merely
streamlines regulations by removing unnecessary provisions. The rule
will have no adverse or disproportionate economic impact on small
businesses.
Environmental Impact
This rulemaking does not have an environmental impact. This
rulemaking simply amends an existing regulation by consolidating and
streamlining provisions. It does not change the environmental review
procedures or the physical impact of the program or the projects
assisted under the regulations being amended. A Finding of No
Significant Impact with respect to the environment was made in
accordance with HUD regulations in 24 CFR part 50 that implement
section 102(2)(C) of the National Environmental Policy Act of 1969 (42
U.S.C. 4332) at the time of development of regulations implementing the
HOPWA program. That finding remains applicable to this rule and is
available for public inspection between 7:30 a.m. and 5:30 p.m.
weekdays in the Office of the Rules Docket Clerk, Office of General
Counsel, Room 10276, Department of Housing and Urban Development, 451
Seventh Street, SW, Washington, DC.
Executive Order 12612, Federalism
The General Counsel, as the Designated Official under section 6(a)
of Executive Order 12612, Federalism, has determined that this rule
will not have substantial direct effects on States or their political
subdivisions, or the relationship between the Federal government and
the States, or on the distribution of power and responsibilities among
the various levels of government. No programmatic or policy changes
will result from this rule that would affect the relationship between
the Federal Government and State and local governments.
Executive Order 12606, The Family
The General Counsel, as the Designated Official under Executive
Order 12606, The Family, has determined that this rule will not have
the potential for significant impact on family formation, maintenance,
or general well-being, and thus is not subject to review under the
Order. No significant change in existing HUD policies or programs will
result from promulgation of this rule.
List of Subjects in 24 CFR Part 574
AIDS, Community facilities, Disabled, Emergency shelter, Grant
programs--health programs, Grant programs--housing and community
development,
[[Page 7963]]
Grant programs--social programs, Homeless, Housing, Low and moderate
income housing, Nonprofit organizations, Rent subsidies, Reporting and
recordkeeping requirements, Technical assistance.
Accordingly, part 574 of title 24 of the Code of Federal
Regulations is amended, as follows:
PART 574--HOUSING OPPORTUNITIES FOR PERSONS WITH AIDS
1. The authority citation for part 574 continues to read as
follows:
Authority: 42 U.S.C. 3535(d) and 12901-12912.
Sec. 574.1 [Removed]
2. Section 574.1 is removed.
Sec. 574.2 [Removed]
3. Section 574.2 is removed.
4. In Sec. 574.3, the definitions for ``City'', ``Low-income
individual'', ``Metropolitan statistical area'', ``Project sponsor'',
and ``State'' are revised to read as follows:
Sec. 574.3 Definitions.
* * * * *
City has the meaning given it in section 102(a) of the Housing and
Community Development Act of 1974 (42 U.S.C. 5302).
* * * * *
Low-income individual has the meaning given it in section 853(3) of
the AIDS Housing Opportunity Act (42 U.S.C. 12902).
Metropolitan statistical area has the meaning given it in section
853(5) of the AIDS Housing Opportunity Act (42.U.S.C. 12902).
* * * * *
Project sponsor means any nonprofit organization or governmental
housing agency that receives funds under a contract with the grantee to
carry out eligible activities under this part. The selection of project
sponsors is not subject to the procurement requirements of 24 CFR
85.36.
* * * * *
State has the meaning given it in section 853(9) of the AIDS
Housing Opportunity Act (42 U.S.C. 12902).
* * * * *
Sec. 574.4 [Removed]
5. Section 574.4 is removed.
6. Section 574.110 is added, to read as follows:
Sec. 574.110 Overview of formula allocations.
The formula grants are awarded upon submission and approval of a
consolidated plan, pursuant to 24 CFR part 91, that covers the
assistance to be provided under this part. Certain states and cities
that are the most populous unit of general local government in eligible
metropolitan statistical areas will receive formula allocations based
on their State or metropolitan population and proportionate number of
cases of persons with AIDS. They will receive funds under this part
(providing they comply with 24 CFR part 91) for eligible activities
that address the housing needs of persons with AIDS or related diseases
and their families (see Sec. 574.130(b)).
Sec. 574.150 [Removed]
7. Section 574.150 is removed.
8. Section 574.200 is amended by adding paragraphs (c) and (d), to
read as follows:
Sec. 574.200 Amounts available for competitive grants.
* * * * *
(c) The competitive grants are awarded based on applications, as
described in subpart C of this part, submitted in response to a Notice
of Funding Availability published in the Federal Register. All States
and units of general local government and nonprofit organizations are
eligible to apply for competitive grants to fund projects of national
significance. Only those States and units of general local government
that do not qualify for formula allocations are eligible to apply for
competitive grants to fund other projects.
(d) If HUD makes a procedural error in a funding competition that,
when corrected, would warrant funding of an otherwise eligible
application, HUD will select that application for potential funding
when sufficient funds become available.
Sec. 574.230 [Removed]
9. Section 574.230 is removed.
10. Section 574.240 is revised to read as follows:
Sec. 574.240 Application requirements.
Applications must comply with the provisions of the Department's
Notice of Funding Availability (NOFA) for the fiscal year published in
the Federal Register in accordance with 24 CFR part 12. The rating
criteria, including the point value for each, are described in the
NOFA, including criteria determined by the Secretary.
Sec. 574.250 [Removed]
11. Section 574.250 is removed.
Sec. 574.310 [Amended]
12. In Sec. 574.310, paragraph (d) is amended by removing from the
introductory text the words, ``determined in accordance with section
3(a) of the United States Housing Act of 1937 and 24 CFR 813.106. Under
these authorities, each resident must pay as rent'', and adding in
their place the words, ``which is''.
13. In Sec. 574.320, paragraph (b) is revised to read as follows:
Sec. 574.320 Additional standards for rental assistance.
* * * * *
(b) With respect to shared housing arrangements, the rent charged
for an assisted family or individual shall be in relation to the size
of the private space for that assisted family or individual in
comparison to other private space in the shared unit, excluding common
space. An assisted family or individual may be assigned a pro rata
portion based on the ratio derived by dividing the number of bedrooms
in their private space by the number of bedrooms in the unit.
Participation in shared housing arrangements shall be voluntary.
14. Section 574.510 is revised to read as follows:
Sec. 574.510 Environmental procedures and standards.
Before any amounts under this program are used to acquire,
rehabilitate, convert, lease, repair or construct properties to provide
housing, HUD shall perform a review in accord with 24 CFR part 50,
which implements the National Environmental Policy Act and the related
Federal environmental laws and authorities listed under 24 CFR 50.4. In
performing its environmental review, HUD may use previously issued
environmental reviews prepared by other local, State, or federal
agencies for the proposed property. The grantee will cooperate in
providing these documents. HUD must, however, conduct the environmental
analysis and prepare the environmental review and be responsible for
the required environmental findings. An environmental assurance shall
be provided by an applicant for formula allocations or competitive
awards in accordance with 24 CFR 50.3(i).
15. Section 574.540 is revised to read as follows:
Sec. 574.540 Deobligation of funds.
HUD may deobligate all or a portion of the amounts approved for
eligible activities if such amounts are not expended in a timely
manner, or the proposed activity for which funding was approved is not
provided in accordance with the approved application or action plan and
the requirements of this regulation. HUD may deobligate any
[[Page 7964]]
amount of grant funds that have not been expended within a three-year
period from the date of the signing of the grant agreement. The grant
agreement may set forth other circumstances under which funds may be
deobligated or sanctions imposed.
16. Section 574.603 is amended by revising the introductory text,
to read as follows:
Sec. 574.603 Nondiscrimination and equal opportunity.
Within the population eligible for this program, the
nondiscrimination and equal opportunity requirements set forth in 24
CFR part 5 and the following requirements apply:
* * * * *
Dated: February 21, 1996.
Andrew M. Cuomo,
Assistant Secretary for Community Planning and Development.
[FR Doc. 96-4678 Filed 2-28-96; 8:45 am]
BILLING CODE 4210-29-P
Complete official Federal Register PDF
FR Doc. 96-4666 Community Development Financial Institutions Program; Bank Enterprise Award Program; Correction
[Federal Register Volume 61, Number 41 (Thursday, February 29, 1996)]
[Rules and Regulations]
[Page 7690]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-4666]
=======================================================================
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DEPARTMENT OF THE TREASURY
Community Development Financial Institutions Fund
12 CFR Parts 1805 and 1806
RIN 1505-AA72
Community Development Financial Institutions Program; Bank
Enterprise Award Program; Correction
AGENCY: Community Development Financial Institutions Fund, Department
of the Treasury.
ACTION: Correction to interim rule.
-----------------------------------------------------------------------
SUMMARY: This document contains corrections to the interim regulations
that were published Tuesday, January 23, 1996 (61 FR 1699). The
regulations relate to the Community Development Financial Institutions
Program and the Bank Enterprise Award Program.
EFFECTIVE DATE: January 23, 1996.
FOR FURTHER INFORMATION CONTACT:
Kirsten S. Moy, Director, Community Development Financial Institutions
Fund at (202) 343-0620. (This is not a toll free number.)
SUPPLEMENTARY INFORMATION: The interim regulations that are the subject
of these corrections revised the interim regulations for the Community
Development Financial Institutions Program and the Bank Enterprise
Program that were published in the Federal Register on October 19, 1995
(60 FR 54110). As published, the amendatory instructions contained
errors which may prove to be misleading and are in need of
clarification.
Accordingly, the publication on January 23, 1996 of the interim
regulations, which were the subject of FR Doc. 96-745, is corrected as
follows:
1. On page 1701, in the first column, amendatory instruction number
4, in the first line, the citation ``1806.600'' is corrected to read
``1805.600''.
Sec. 1806.202 [Corrected]
2. On page 1702, in the second column, amendatory instruction
number 5, in the third line, the citation ``(d)(2)'' is corrected to
read ``(b)(2)'', and in the fourth line the citation ``(d)(3)'' is
corrected to read ``(b)(3)''.
3. On page 1702, in the third column, amendatory instruction number
7 is correctly designated as amendatory instruction number 6.
Dated: February 23, 1996.
Kirsten S. Moy,
Director, Community Development Financial Institutions Fund.
[FR Doc. 96-4666 Filed 2-28-96; 8:45 am]
BILLING CODE 4810-70-M
Complete official Federal Register PDF
FR Doc. 96-4651 Designation of Agencies To Receive and Investigate Reports Required Under the Victims of Child Abuse Act
[Federal Register Volume 61, Number 41 (Thursday, February 29, 1996)]
[Rules and Regulations]
[Pages 7704-7706]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-4651]
=======================================================================
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DEPARTMENT OF JUSTICE
Office of the Attorney General
28 CFR Part 81
[AG Order No. 2009-96]
RIN 1105-AA38
Designation of Agencies To Receive and Investigate Reports
Required Under the Victims of Child Abuse Act
AGENCY: Department of Justice.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: This rule carries out the Attorney General's responsibilities
under the child abuse reporting provisions of the Victims of Child
Abuse Act of 1990 (``VCAA''). The VCAA requires persons engaged in
certain specified professions and activities on federal lands or
facilities to report incidents of child abuse to the appropriate
federal, state, or local agency designated by the Attorney General. In
order to facilitate effective reporting, the VCAA requires the Attorney
General to ``designate an agency'' to receive and investigate such
reports of child abuse. This rule sets forth the Attorney General's
designations and certain other matters covered by the VCAA's reporting
requirements.
EFFECTIVE DATE: This rule is effective April 1, 1996.
[[Page 7705]]
FOR FURTHER INFORMATION CONTACT:
Terry R. Lord, Acting Chief, Child Exploitation and Obscenity Section,
Criminal Division, Washington, D.C. 20530, (202) 514-5780.
SUPPLEMENTARY INFORMATION:
I. Background
The child abuse reporting provisions of the Victims of Child Abuse
Act (VCAA) were enacted as section 226 of the Crime Control Act of
1990, Pub. L. No. 101-647, 104 Stat. 4806, codified at 42 U.S.C. 13001-
13041, 3796aa-3796aa-8, and 18 U.S.C. 403, 2257, and 3509. As set forth
at 42 U.S.C. 13031, the VCAA requires persons engaged in certain
professional capacities or activities on federal lands or on federally
operated facilities (as well as certain facilities covered by federal
contracts) (``covered professional'') to report incidents of child
abuse to an agency designated by the Attorney General to receive and
investigate such reports. On January 3, 1994, the Department of Justice
published a proposed rule promulgating the Attorney General's
designation of the agencies to receive and investigate these reports of
child abuse (59 FR 37). Having received and considered comments
submitted in response to the proposed rule, the Attorney General is now
promulgating a final rule on this subject.
Under the provisions of 42 U.S.C. 13031(d), the Attorney General
may designate non-federal agencies to receive and investigate the child
abuse reports, provided that the designation is formalized by a written
agreement. Under the rule, reports of child abuse made pursuant to 42
U.S.C. 13031 are to be submitted to the federal, state, tribal or local
law enforcement or child protective services agency that currently has
jurisdiction to investigate reports of child abuse or protect child
abuse victims in the federal land area or facility in question. Where
no agency currently qualifies for designation under the rule, the rule
designates the Federal Bureau of Investigation (``FBI'') to receive and
investigate the reports of child abuse until another agency qualifies
for such designation. If the child abuse reported by the covered
professional pursuant to 42 U.S.C. 13031 occurred outside the federal
area or facility in question, the designated agency receiving the
report must forward the matter to the appropriate authority with
jurisdiction over the potential offense. For example, a covered
reporting professional may, while working on federal land or in a
federally operated facility, learn of facts that give reason to suspect
that a child has suffered abuse outside the federal area in question.
In such a circumstance, the covered professional would report the abuse
in the same manner as if the abuse occurred within the federal area in
question. The rule contemplates that the designated agency receiving
the report will immediately forward the matter to the appropriate
authority with jurisdiction outside the federal area in question.
In accordance with 5 U.S.C. 605(b), the Attorney General certifies
that this rule will not have a significant adverse economic impact on a
substantial number of small entities. This rule has not been reviewed
by the Office of Management and Budget pursuant to Executive Order
12866. This rule does not have federalism implications warranting the
preparation of a Federalism Assessment in accordance with Executive
Order 12612. This rule meets the applicable standards provided in
sections 2(a) and 2(b) of Executive Order 12778. Notice of the proposed
rule was published in the Federal Register on January 3, 1994, and
comments were solicited (59 FR 37). A discussion of comments received
pursuant to that notice follows.
II. Summary of Comments and Department's Responses
Comments on the proposed rule were received from a number of
affected federal and state agencies. Set forth below is a summary of
those comments and the Department's response to them.
Comments from the New Jersey Division of Youth and Family Services:
1. A distinction should be made between child abuse offenses
committed against children by caregivers and child assault offenses
committed by other adults.
Response: Such a distinction is not contemplated or authorized by
the underlying statutory requirement, 42 U.S.C. 13031. The statutory
reporting requirement is not qualified by any distinction concerning
the status of persons committing the abuse in question.
2. The list of ``covered professionals'' mandated to report child
abuse or neglect should be expanded to include additional employees on
federal land.
Response: This list cannot be expanded because to do so would
exceed the scope permitted by the enabling statute. See 42 U.S.C.
13031(b). The statute specifically designates the mandated reporters by
their profession or activity.
3. The proposed rule does not address the reporting of child abuse
occurring off federal land or facilities, but which becomes known to
mandated reporters employed at those locations.
Response: The rule has been clarified to mandate that covered
professionals report any incident of suspected child abuse as defined
in the statute, regardless of where the abuse occurred. If the incident
of suspected child abuse occurred outside the federal area or facility
in question, the designated agency receiving the report must forward
the matter to the appropriate authority with jurisdiction.
Comments from Family Advocacy Program, The Office of the Assistant
Secretary of Defense:
1. Federal ``covered professionals'' must be required to report
incidents of abuse or neglect regardless of where the alleged abuse
occurred.
Response: As indicated in response to comment 3 from the New Jersey
Division of Youth and Family Services, the rule has been clarified as
requested.
2. Amend Section 81.2 of the proposed rule so that the federal
agencies or administrators on federal lands or federally operated or
contracted facilities have ``primary responsibility'' for entering into
a Memorandum of Understanding or other form of formal written agreement
for the reporting of suspected cases of child abuse.
Response: The rule contemplates that the United States will take
the lead in initiating the written agreements where needed.
3. Include a requirement that the FBI ``closely coordinate''
efforts with the local law enforcement or child protective services
because the federal authorities do not have the authority to remove a
child from the home to prevent further abuse.
Response: It is contemplated that the FBI will closely coordinate
with local law enforcement and child protective services since federal
authorities usually have no jurisdiction to remove a child from the
home to prevent further abuse.
Comments from the Diplomatic Security Service, the United States
Department of State:
1. Indicate that reports of child abuse arising at the United
States diplomatic and consular posts abroad should be made to the
appropriate Special Agent or Regional Security Officer of the
Department of State's Diplomatic Security Service.
Response: The requested amendment is not necessary because, under
the current language of the proposed rule, the Diplomatic Security
Service would constitute the ``designated agency'' to receive and
investigate reports of child abuse under the circumstances described.
Section 81.2 stipulates that ``[r]eports of child abuse required by 42
[[Page 7706]]
U.S.C. 13031 shall be made to the local law enforcement agency or local
child protective services agency that has jurisdiction to investigate
reports of child abuse or to protect child abuse victims in the land
area or facility in question.'' The Diplomatic Security Service would
therefore be the ``designated agency'' in the circumstances described
in this comment, inasmuch as Section 81.5 defines local law enforcement
agency to include ``the Federal * * * law enforcement agency that has
the primary responsibility for the investigation of an instance of
alleged child abuse* * *''
Comments from the Office of Enforcement and Security Management, United
States Department of Interior:
1. Eliminate from the last sentence of section 81.2 the following:
``* * * or a Federal agency with jurisdiction for the area or facility
in question,'' and omit the requirement for a formal written agreement
with local law enforcement entities.
Response: The provisions of the enabling statute, 42 U.S.C. 13031,
preclude adoption of the suggested amendment. We understand that the
underlying concern behind the Department of Interior request is
apprehension that an administratively crippling number of agreements
would be needed in Bureau of Land Management (``BLM'') areas. However,
the Department does not interpret the term ``federal lands'' as used in
42 U.S.C. 13031 to include those lands held by the United States merely
as a proprietor as distinguished form those lands over which the United
States is empowered to exercise legislative jurisdiction. See generally
Adams v. United States, 319 U.S. 312 (1943); James v. Dravo Contracting
Co., 302 U.S. 134, 139 (1937). It is our understanding that most land
managed by BLM falls within the former category. Congress could not
reasonably have intended to include such lands within the term
``federal lands'' as used in the Victims of Child Abuse statute.
Therefore, the mandates of the rule and enabling legislation do not
apply to such merely proprietary lands managed by BLM.
List of Subjects in 28 CFR Part 81
Child abuse, Federal buildings and facilities.
For the reasons set forth in the preamble, and by virtue of the
authority vested in me as Attorney General, including 28 U.S.C. 509 and
510, 5 U.S.C. 301, and 42 U.S.C. 13031, and Public Law 101-647 (104
Stat. 4806), part 81 of chapter I of title 28 of the Code of Federal
Regulations is added as follows:
PART 81--CHILD ABUSE REPORTING DESIGNATIONS AND PROCEDURES
Sec.
81.1 Purpose.
81.2 Submission of reports; designation of agencies to receive
reports of child abuse.
81.3 Designation of Federal Bureau of Investigation.
81.4 Referral of reports where designated agency is not a law
enforcement agency.
81.5 Definitions.
Authority: 28 U.S.C. 509, 510; 42 U.S.C. 13031.
Sec. 81.1 Purpose.
The regulations in this part designate the agencies that are
authorized to receive and investigate reports of child abuse under the
provisions of section 226 of the Victims of Child Abuse Act of 1990,
Public Law 101-647, 104 Stat. 4806, codified at 42 U.S.C. 13031.
Sec. 81.2 Submission of reports; designation of agencies to receive
reports of child abuse.
Reports of child abuse required by 42 U.S.C. 13031 shall be made to
the local law enforcement agency or local child protective services
agency that has jurisdiction to investigate reports of child abuse or
to protect child abuse victims in the land area or facility in
question. Such agencies are hereby respectively designated as the
agencies to receive and investigate such reports, pursuant to 42 U.S.C.
13031(d), with respect to federal lands and federally operated or
contracted facilities within their respective jurisdictions, provided
that such agencies, if non-federal, enter into formal written
agreements to do so with the Attorney General, her delegate, or a
federal agency with jurisdiction for the area or facility in question.
If the child abuse reported by the covered professional pursuant to 42
U.S.C. 13031 occurred outside the federal area or facility in question,
the designated local law enforcement agency or local child protective
services agency receiving the report shall immediately forward the
matter to the appropriate authority with jurisdiction outside the
federal area in question.
Sec. 81.3 Designation of Federal Bureau of Investigation.
For federal lands, federally operated facilities, or federally
contracted facilities where no agency qualifies for designation under
Sec. 81.2, the Federal Bureau of Investigation is hereby designated as
the agency to receive and investigate reports of child abuse made
pursuant to 42 U.S.C. 13031 until such time as another agency qualifies
as a designated agency under Sec. 81.2.
Sec. 81.4 Referral of reports where the designated agency is not a law
enforcement agency.
Where a report of child abuse received by a designated agency that
is not a law enforcement agency involves allegations of sexual abuse,
serious physical injury, or life-threatening neglect of a child, that
agency shall immediately report such occurrence to a law enforcement
agency with authority to take emergency action to protect the child.
Sec. 81.5 Definitions.
Local child protective services agency means that agency of the
federal government, of a state, of a tribe or of a local government
that has the primary responsibility for child protection within a
particular portion of the federal lands, a particular federally
operated facility, or a particular federally contracted facility in
which children are cared for or reside.
Local law enforcement agency means that federal, state, tribal or
local law enforcement agency that has the primary responsibility for
the investigation of an instance of alleged child abuse occurring
within a particular portion of the federal lands, a particular
federally operated facility, or a particular federally contracted
facility in which children are cared for or reside.
Dated: February 18, 1996.
Janet Reno,
Attorney General.
[FR Doc. 96-4651 Filed 2-28-96; 8:45 am]
BILLING CODE 4410-01-M
Complete official Federal Register PDF
FR Doc. 96-4632 Toll Free Service Access Codes
[Federal Register Volume 61, Number 41 (Thursday, February 29, 1996)]
[Rules and Regulations]
[Pages 7737-7739]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-4632]
=======================================================================
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[[Page 7738]]
FEDERAL COMMUNICATIONS COMMISSION
47 CFR Part 61
[CC Docket No. 95-155; DA 96-69]
Toll Free Service Access Codes
AGENCY: Federal Communications Commission.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Report and Order resolves certain issues essential to the
industry opening the 888 toll free service access code (``SAC'') on
March 1, 1996. The Report and Order adopted by the Common Carrier
Bureau of the FCC, identifies which numbers in the 888 Service Access
Code (``SAC'') will become generally available for reservation on
February 10, 1996 and establishes limits on how many 888 and 800
numbers each Responsible Organization (``RespOrg'') may reserve so as
to not overload the system and interrupt the reservation process. For
tariffing purposes, the Report and Order concludes that toll free
service using the 888 SAC is functionally equivalent to toll free
service that uses the 800 SAC. The introduction of the 888 SAC for toll
free calling is determined to be an expansion of the universe of toll
free numbers brought on by an increase in the demand for toll free
services and is considered to be similar to an increase in network
capacity. Local exchange carriers (``LECs'') are, therefore, not
allowed to treat the costs and investments associated with the
introduction of the 888 SAC exogenously under price caps.
EFFECTIVE DATE: January 25, 1996.
FOR FURTHER INFORMATION CONTACT: Irene Flannery, (202) 418-2373; Mary
DeLuca (202) 418-2344; Bradley S. Wimmer (202) 418-2351 Network
Services Division, Common Bureau.
SUPPLEMENTARY INFORMATION: This document summarizes the Bureau's Report
and Order In the Matter of Toll Free Service Access Codes (CC Docket
95-155, adopted January 24, 1996, and released January 25, 1996, DA 96-
69). The file is available for inspection and copying during the
weekday hours of 9:00 a.m. to 4:30 p.m. in the Commission's Reference
Center, room 239, 1919 M Street, N.W., Washington, D.C., or copies may
be purchased from the Commission's duplicating contractor, ITS, Inc.,
2100 M Street, N.W., Suite 140, Washington, D.C. 20037, phone (202)
857-3800.
Paperwork Reduction Act
The Report and Order contains no requests for data and, therefore,
does not require review by the Office of Management and Budget under
the Paperwork Reduction Act of 1995.
Analysis of Proceeding
Background
In October 1995, the Commission initiated a rulemaking proceeding
to ensure that in the future, toll free numbers are allocated on a
fair, equitable and orderly basis. Generally, the Notice sought comment
on proposals to: (1) promote the efficient use of toll free numbers;
(2) foster the fair and equitable reservation and distribution of toll
free numbers; (3) smooth the transition period preceding introduction
of a new toll free code; (4) guard against warehousing of toll free
numbers; and (5) determine how toll free vanity numbers should be
treated. (CC Docket No. 95-155, FCC 95-419, 60 FR 53157, October 12,
1995) That Notice was issued in response to industry reports that the
existing pool of toll free numbers were being consumed at a rate that
would exhaust the supply of toll free numbers in the 800 Service Access
Code (``SAC'') before the 888 SAC would be deployed. On January 24,
1996, the Commission released an Order (CC Docket No. 95-155, adopted
January 23, 1996, FCC 96-18) that delegated to the Chief of the Common
Carrier Bureau (``Bureau'') the authority to resolve the issues
essential to the industry opening the 888 toll free service access code
(``SAC'') on schedule. Toll free service using the 888 SAC is currently
scheduled to begin on March 1, 1996.
Summary
1. The Report and Order resolves those issues essential to opening
the 888 SAC for toll free calling according to schedule. Specifically,
the Report and Order defers the issue of what permanent protection, if
any, those subscribers with a commercial interest in preventing their
800 number from being replicated in the 888 code will be afforded to
the Commission; concludes that RespOrgs should determine which toll
free subscribers using the 800 SAC will have their 800 numbers
protected from replication in the 888 code during the initial
reservation of 888 numbers; sets the date for which initial reservation
of 888 numbers will begin; sets limitations on the number of numbers
that RespOrgs will be allowed to reserve for both 800 and 888 numbers;
and concludes that the costs incurred by LECs regulated under price
caps to upgrade the 800 database will not be treated as exogenous.
2. In this Order, the Bureau agrees with the SMS/800 Number
Administration Committee (``SNAC'') that RespOrgs should poll their 800
subscribers to determine which numbers subscribers may want replicated
in 888. We expect that RespOrgs will continue this polling process
until February 1, 1996. We direct Database Management Services, Inc.
(``DSMI'') to set aside those 888 numbers identified by the RespOrgs by
placing these ``vanity numbers'' in ``unavailable'' status until we
resolve whether these numbers should be afforded any special right or
protection on a permanent basis. We also conclude that the entire
``888-555'' NXX should be designated as ``unavailable'' until the
Commission resolves those issues that will permit competitive toll free
directory assistance services.
3. The Bureau concludes that first come, first served remains the
most equitable, easily administered, and least expensive means of
allocating toll free numbers. The Order sets February 10, 1996 as the
date for which reservation of 888 toll free numbers will begin. The 888
numbers will be rationed based on a version of the 800 number
conservation plan initiated to delay the complete exhaust of toll free
numbers in the 800 SAC until after the 888 SAC is in use for toll free
calling. The Bureau implements a conservation plan in order to avoid a
system overload that would temporarily interrupt the reservation
process. According to the Bureau's conservation plan, up to 120,000 888
numbers per week may be reserved. The Bureau does not, however, at this
time discontinue the conservation of 800 numbers but, instead,
increases the size of the allocation from 29,000 numbers a week to
73,000 numbers a week for a three week period and then returns to the
29,000 numbers a week allocation plan.
4. For tariffing purposes, the Bureau concludes that toll free
service using the 888 SAC is functionally equivalent to toll free
service that uses the 800 code. Moreover, the Bureau concludes that the
addition of 888 numbers to the universe of toll free numbers is
comparable to an increase in network capacity and, therefore, will not
allow the costs attributable to the implementation of 888 to be treated
as exogenous by carriers regulated under price caps.
Ordering Clauses
Accordingly, IT IS ORDERED that, pursuant to authority contained in
Sections 1, 4, 5, and 201-205 of the Communications Act of 1934, as
amended, 47 U.S.C. Secs. 151, 154, 155, and 201-205, Section 0.201(d)
of the Commission's rules, 47 C.F.R.
[[Page 7739]]
Sec. 0.201(d), this Report and Order is hereby ADOPTED.
IT IS FURTHER ORDERED that, pursuant to 5 U.S.C. Sec. 554(d) and 47
C.F.R. Sec. 1.103(a), this Report and Order shall take effect upon
adoption.
List of Subjects in 47 CFR Part 61
Communication common carriers.
Federal Communications Commission.
John S. Morabito,
Deputy Chief, Network Services Division, Common Carrier Bureau.
[FR Doc. 96-4632 Filed 2-28-96; 8:45 am]
BILLING CODE 6712-01-P
Complete official Federal Register PDF
FR Doc. 96-4631 Radio Broadcasting Services; Copeland, KS
[Federal Register Volume 61, Number 41 (Thursday, February 29, 1996)]
[Rules and Regulations]
[Page 7739]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-4631]
-----------------------------------------------------------------------
FEDERAL COMMUNICATIONS COMMISSION
47 CFR Part 73
[MM Docket No. 95-85; RM-8518]
Radio Broadcasting Services; Copeland, KS
AGENCY: Federal Communications Commission.
ACTION: Final rule; correction.
-----------------------------------------------------------------------
SUMMARY: This document contains a correction to the final regulation
document which was published Friday, January 26, 1996 (61 FR 02453).
EFFECTIVE DATE: February 29, 1996.
FOR FURTHER INFORMATION CONTACT: Barbara Chappelle, Publications
Branch, (202) 418-0310.
SUPPLEMENTARY INFORMATION:
Need of Correction
As published, the final regulation document contains an error in
the window period and closing date.
Correction of Publication
Accordingly, the publication on January 26, 1996 of the final
regulations, which were subject of FR Doc. 96-1420 is Corrected as
follows:
On page 02453, in the second column, In the DATES section, the
window period closing date for filing applications should be April 4,
1996 in lieu of March 19, 1996.
Federal Communications Commission.
William F. Caton,
Acting Secretary.
[FR Doc. 96-4631 Filed 2-28-96; 8:45 am]
BILLING CODE 6712-01-P
Complete official Federal Register PDF
FR Doc. 96-4630 Radio Broadcasting Services; Grand Junction, CO
[Federal Register Volume 61, Number 41 (Thursday, February 29, 1996)]
[Rules and Regulations]
[Page 7739]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-4630]
-----------------------------------------------------------------------
FEDERAL COMMUNICATIONS COMMISSION
47 CFR Part 73
[MM Docket No. 95-43; RM-8580]
Radio Broadcasting Services; Grand Junction, CO
AGENCY: Federal Communications Commission.
ACTION: Final rule; correction.
-----------------------------------------------------------------------
SUMMARY: This document contains a correction to the final regulation
document which was published Friday, January 26, 1996 (61 FR 02453).
EFFECTIVE DATE: February 29, 1996.
FOR FURTHER INFORMATION CONTACT: Barbara Chappelle, Publications
Branch, (202) 418-0310.
SUPPLEMENTARY INFORMATION:
Need of Correction
As published, the final regulation document contains an error in
the window period and closing date.
Correction of Publication
Accordingly, the publication on January 26, 1996 of the final
regulations, which were the subject of FR Doc. 96-1422 is corrected as
follows:
On page 02453, in the third column, in the DATES section, the
window period closing date for filing applications should be April 4,
1996 in lieu of March 19, 1996.
Federal Communications Commission.
William F. Caton,
Acting Secretary.
[FR Doc. 96-4630 Filed 2-28-96; 8:45 am]
BILLING CODE 6712-01-P
Complete official Federal Register PDF
FR Doc. 96-4629 Direct Food Substances Affirmed as Generally Recognized as Safe; Lactase Enzyme Preparation From Candida Pseudotropicalis
[Federal Register Volume 61, Number 41 (Thursday, February 29, 1996)]
[Rules and Regulations]
[Pages 7702-7704]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-4629]
=======================================================================
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DEPARTMENT OF HEALTH AND HUMAN SERVICES
Food and Drug Administration
21 CFR Part 184
[Docket No. 83G-0062]
Direct Food Substances Affirmed as Generally Recognized as Safe;
Lactase Enzyme Preparation From Candida Pseudotropicalis
AGENCY: Food and Drug Administration, HHS.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Food and Drug Administration (FDA) is amending its
regulations to affirm that lactase enzyme preparation derived from
Candida pseudotropicalis for use in milk and milk-derived products to
hydrolyze lactose is generally recognized as safe (GRAS). This action
is in response to a petition submitted by Pfizer, Inc.
DATES: Effective February 29, 1996. The Director of the Office of the
Federal Register approves the incorporation by reference in accordance
with 5 U.S.C. 552(a) and 1 CFR part 51 of certain publications listed
in new Sec. 184.1387, effective February 29, 1996.
FOR FURTHER INFORMATION CONTACT: Nega Beru, Center for Food Safety and
Applied Nutrition (HFS-206), Food and Drug Administration, 200 C St.
SW., Washington, DC 20204, 202-418-3097.
SUPPLEMENTARY INFORMATION:
I. Background
In accordance with the procedures described in Sec. 170.35 (21 CFR
170.35), Pfizer, Inc., 235 East 42d St., New York, NY 10017, submitted
a petition (GRASP 2G0282) proposing that lactase enzyme preparation
from C. pseudotropicalis be affirmed as GRAS for use as a direct human
food ingredient. (Lactase, the enzyme, is to be distinguished from
lactase enzyme preparation, which contains lactase as the principal
active component but also contains other components derived from the
production organism and fermentation media. This document will refer to
the former as ``lactase'' and to the latter as ``lactase enzyme
preparation.'') Lactase enzyme preparation is used to hydrolyze lactose
in milk and milk products.
FDA published a notice of filing of this petition in the Federal
Register of March 29, 1983 (48 FR 13098), and gave interested persons
an opportunity to submit comments to the Dockets Management Branch
(HFA-305), Food and Drug Administration, 12420 Parklawn Dr., rm. 1-23,
Rockville, MD 20857. FDA received no comments in response to that
notice.
II. Standards for GRAS Affirmation
Under Sec. 170.30 (21 CFR 170.30), general recognition of safety
may be based only on the views of experts qualified by scientific
training and experience to evaluate the safety of substances added to
food. The basis of such views may be either: (1) Scientific procedures,
or (2) in the case of a substance used in food prior to January 1,
1958, experience based on common use in food (Sec. 170.30(a)). General
recognition of safety based upon scientific procedures requires the
same quantity and quality of scientific evidence as is required to
obtain approval of a food additive and ordinarily is to be based upon
published studies, which may be corroborated by unpublished studies and
other data and information (Sec. 170.30(b)). General recognition of
safety through experience based on common use in food prior to January
1, 1958, may be determined without the quantity or quality of
scientific procedures required for approval of a food additive, and
ordinarily is to be based upon generally available data and information
concerning the pre-1958 history of use of the food ingredient
(Sec. 170.30(c)).
The petition states that C. pseudotropicalis was isolated from
dairy products prior to 1958 (Refs. 1 and 2). Therefore, the petition
argues, lactase produced by the organism has been part of the human
diet for many years and may be presumed to have been in common use in
food prior to January 1, 1958. The petition also states that Pfizer,
Inc., first began commercial production of lactase enzyme preparation
derived from C. pseudotropicalis in 1982 for use in certain dairy
products.
The agency recognizes that C. pseudotropicalis was isolated from
dairy products prior to 1958. However, lactase enzyme preparation
derived from C. pseudotropicalis does not itself have a history of
common use as an ingredient in food before 1958. Therefore, the enzyme
preparation does not qualify for GRAS status based on a history of
common use in food (Sec. 170.30(c)). Accordingly, FDA has evaluated the
enzyme preparation on the basis of scientific procedures under
Sec. 170.30(b).
In evaluating this petition, the agency reviewed information
concerning: (1) The identity and function of the enzyme, (2) the
production and purification of the lactase enzyme preparation, and (3)
the safety of the production organism and the finished lactase enzyme
preparation.
III. Identity and Technical Effect
Lactase is the accepted name for the enzyme -D-galactoside
galactohydrolase (EC 3.2.1.23), which catalyzes the hydrolysis of the
disaccharide lactose to its component monosaccharides, glucose and
galactose. Lactase enzyme preparations may be produced by fermentation
utilizing any of a large number of microorganisms. A typical example is
the enzyme produced by the yeast Kluyveromyces lactis (Ref. 3).
The lactase preparation that is the subject of this petition is a
soluble enzyme preparation derived from the yeast C. pseudotropicalis
and is composed of the enzyme lactase as the principal active
ingredient, other components derived from the production organism and
the fermentation media, residual amounts of processing aids, and
substances added as stabilizers or diluents. The petitioned enzyme
preparation meets the general and additional requirements for enzyme
preparations found in the Food Chemicals Codex, 3d ed. (1981), which
are incorporated by reference in Sec. 184.1387 (Ref. 4).
Lactase enzyme preparation is intended for use in hydrolyzing
lactose to reduce the lactose content of food products. The petitioner
provided published information to demonstrate that lactase enzyme
preparation from C. pseudotropicalis hydrolyzes lactose in milk and
milk products.
[[Page 7703]]
IV. Production and Purification of Lactase Enzyme Preparation
The lactase enzyme preparation that is the subject of this petition
is produced by controlled aerobic fermentation using a pure culture of
the food-derived yeast C. pseudotropicalis, aseptically grown in a
medium containing suitable food-grade carbohydrates, proteins, mineral
salts, and processing aids. The isolated cells are mixed with a warm
buffer solution consisting of potassium phosphate (mono- and dibasic)
and manganous sulfate and allowed to autolyze for up to 24 hours. The
resulting material is clarified to remove cell debris and other
insoluble solids, and the lactase-containing yeast extract is
concentrated by processes appropriate for food use, including
ultrafiltration. Glycerol and/or sorbitol may be added as stabilizers,
and suitable preservatives may be incorporated during processing. The
stabilized lactase preparation is adjusted to a standard potency using
a combination of water mixed with glycerol or sorbitol.
V. Safety Information-
In its petition, Pfizer, Inc., provided published information to
document that the organism C. pseudotropicalis was isolated from dairy
products as early as 1952 (Refs. 1 and 2). Pfizer, Inc., argues that
since the organism is a copious producer of lactase (Ref. 5), both the
organism and the lactase it produces have been ingested by man for many
years. In addition, Pfizer, Inc., points out that C. pseudotropicalis
resembles K. fragilis (a yeast, also known as Saccharomyces fragilis,
that is approved as a direct food additive ((Sec. 172.896) (21 CFR
172.896))) in all respects except that C. pseudotropicalis is unable to
reproduce sexually (Refs. 1 and 6). K. fragilis, like C.
pseudotropicalis, has been isolated from dairy products (Refs. 1 and
7); in fact, the organisms are often found together in dairy foods
(Ref. 5).
Pfizer, Inc., presented published reports to establish the
similarity between C. pseudotropicalis and K. fragilis. For example, in
an electrophoretic comparison of enzymes, a method used to clarify the
taxonomical and physiological relationships among strains, the
enzymatic patterns of C. pseudotropicalis and its perfect state, K.
fragilis, were shown to coincide (Ref. 8). Further, a study using a
deoxyribonucleic acid (DNA) reassociation technique showed that, within
the accuracy permitted by the technique, C. pseudotropicalis and K.
fragilis have identical DNA sequences (Ref. 9).
The close similarity between the source microorganism (C.
pseudotropicalis) and K. fragilis, which FDA has determined is safe for
use as a direct food additive (Sec. 172.896), supports the safety of
the enzyme preparation (Refs. 10 and 11). Further, the information
submitted by the petitioner establishes that lactase produced by both
yeasts has been ingested by humans for many years with no reported
adverse effects (Ref. 12).
To further document the safety of C. pseudotropicalis, Pfizer,
Inc., presented a published study which compared the pathogenic
potential of several industrial yeasts with that of established
pathogens. The study found that neither C. pseudotropicalis nor K.
fragilis produced signs of tissue invasion or disease. The authors of
the study categorized both organisms in a group of nonpathogenic
organisms (Ref. 13). Finally, Pfizer, Inc., submitted unpublished
corroborative studies conducted in mice to confirm the nonpathogenicity
of C. pseudotropicalis.
After conducting a review of the literature and evaluating these
studies, the agency concludes that C. pseudotropicalis is neither
pathogenic nor toxicogenic (Refs. 14 and 15). Furthermore, the agency
has determined that the autolysis and filtration steps used in
producing and purifying the lactase enzyme preparation effectively
remove viable cells of the production organism (Ref. 15).
Pfizer, Inc., also presented corroborative unpublished toxicity
studies to establish the safety of lactase enzyme preparation derived
from C. pseudotropicalis. These were: (1) An acute oral toxicity study
in rats, (2) mutagenic and cytogenetic assays, and (3) 90-day oral
toxicity studies in rats and dogs. The agency has evaluated the studies
and concludes that the studies showed no evidence of toxicity or
genotoxicity (Ref. 16).
Finally, Pfizer, Inc., presented information regarding use levels
of the enzyme preparation in milk and milk products. Based on this
information, the agency concludes that the use of lactase enzyme
preparation from C. pseudotropicalis would not add to the total
consumption of lactase from all sources because the petitioned enzyme
preparation will be substituted for other lactase enzyme preparations
currently in use (Ref. 17).
VI. Conclusions-
The agency has evaluated the information in the petition, along
with other available information, and concludes that lactase enzyme
preparation derived from C. pseudotropicalis is GRAS. This conclusion
is based on published information, corroborated by unpublished data and
information.
Therefore, the agency is affirming that lactase enzyme preparation
derived from C. pseudotropicalis is GRAS with no limits on its
conditions of use other than current good manufacturing practice, in
accordance with 21 CFR 184.1(b)(1). This GRAS affirmation is based on
evaluation of the use of the enzyme preparation to reduce the lactose
content of milk and milk-derived food products.
The agency further finds that because the principal active
ingredient of the enzyme preparation is safe and because expected
impurities in the enzyme preparation do not provide any basis for a
safety concern, the general requirements and additional requirements
for enzyme preparations given in the Food Chemicals Codex, 3d ed.
(1981), pp. 107-110, are adequate as minimum criteria for food-grade
lactase enzyme preparations derived from C. pseudotropicalis.
VII. Environmental Impact
The agency has determined under 21 CFR 25.24(b)(7) that this action
is of a type that does not individually or cumulatively have a
significant effect on the human environment. Therefore, neither an
environmental assessment nor an environmental impact statement is
required.
VIII. Analysis of Impacts
FDA has examined the impact of this final rule under Executive
Order 12866 and the Regulatory Flexibility Act (Pub. L. 96-354).
Executive Order 12866 directs agencies to assess all costs and benefits
of available regulatory alternatives and, when regulation is necessary,
to select regulatory approaches that maximize net benefits (including
potential economic, environmental, public health and safety effects;
distributive impacts; and equity). According to Executive Order 12866,
a regulatory action is significant if it meets any one of a number of
conditions, including having an annual effect on the economy of $100
million; adversely affecting in a material way a sector of the economy,
competition, or jobs; or raising novel legal or policy issues. The
Regulatory Flexibility Act requires analyzing options for regulatory
relief for small businesses.
FDA finds that this final rule is not a significant regulatory
action as defined by Executive Order 12866. The final rule does not
raise novel legal or policy
[[Page 7704]]
issues. The compliance cost to firms currently in the industry is zero
because the rule prohibits no current activity. Potential benefits
include the wider use of the enzyme preparation because of reduced
uncertainty concerning its regulatory status, and any resources saved
by eliminating the need to prepare further petitions to affirm the GRAS
status of this use of the enzyme preparation.
Finally, in compliance with the Regulatory Flexibility Act, FDA
certifies that the final rule will not have a significant impact on a
substantial number of small businesses. The compliance cost to small
businesses currently in the industry is zero because no current
activity is prohibited under the rule.
IX. Effective Date-
As this rule recognizes an exemption from the food additive
definition in the Federal Food, Drug, and Cosmetic Act, and from the
approval requirements applicable to food additives, no delay in
effective date is required by the Administrative Procedure Act (5 U.S.C
553(d)). The rule will therefore be effective immediately (5 U.S.C.
553(d)(1)).
X. References
The following references have been placed on display in the Dockets
Management Branch (address above) and may be seen by interested persons
between 9 a.m. and 4 p.m., Monday through Friday.
1. Lodder, J., The Yeasts: A Taxonomic Study, 2d ed., pp. 345-
348, 1025-1027, North Holland Publishing Co., Amsterdam, 1970.
2. Rose, A. H., and J. S. Harrison, The Yeasts, V 1, Biology of
Yeasts, p. 139, Academic Press, New York, 1969.
3. 21 CFR 184.1388.
4. ``Monograph on Enzyme Preparations,'' in Food Chemicals
Codex, 3d ed., National Academy Press, Washington, DC, pp. 107-110,
1981.
5. Schmidt, J. L., and J. Lenoir, ``Contribution to the Study of
Yeast Flora in Camembert Cheese. Its Development During Ripening,''
Lait 58 (577):355-370, 1978.
6. Kreger van Rij, N. J. W., ``The Yeasts: A Taxonomic Study,''
pp. 233-234, North Holland Pub. Co., Amsterdam, 1970.
7. Lutwick, L. I., H. J. Phaff, and D. A. Stevens,
``Kluyveromyces fragilis as an Opportunistic Fungal Pathogen in
Man,'' Sabouraudia 18:69-73, 1980.
8. Yamazaki, M., and K. Komagata, ``Asporogenous Yeasts and
Their Supposed Ascosporogenous States: An Electrophoretic Comparison
of Enzymes,'' Journal of General and Applied Microbiology, 28:119-
138, 1982.
9. Letter from H. J. Phaff, University of California, Davis, to
W. C. Wernau, Pfizer, Inc., February 13, 1980.
10. Memorandum from T. J. McKay, FDA, to M. Custer, FDA,
November 8, 1982.
11. Memorandum from C. B. Johnson, FDA, to N. Beru, FDA,
February 2, 1994.
12. Memorandum from C. B. Johnson, FDA, to the Direct Additives
Branch, FDA, December 6, 1988.
13. Holzschu, D. L. et al., ``Evaluation of industrial yeast for
pathogenicity,'' Sabouraudia 17:71-78, 1979.
14. Memorandum from P. Mislivec, FDA, to M. Custer, FDA, October
22, 1982.
15. Memorandum from J. M. Madden, FDA, to M. Peiperl, FDA,
November 5, 1993.
16. Memorandum from A. N. Milbert, FDA, to V. Prunier, FDA,
August 13, 1984.
17. Memorandum from J. Modderman, FDA, to V. Prunier, FDA,
November 7, 1984.
List of Subjects in 21 CFR Part 184
Food ingredients, Incorporation by reference.
Therefore, under the Federal Food, Drug, and Cosmetic Act and under
authority delegated to the Commissioner of Food and Drugs and
redelegated to the Director, Center for Food Safety and Applied
Nutrition, 21 CFR part 184 is amended as follows:
PART 184--DIRECT FOOD SUBSTANCES AFFIRMED AS GENERALLY RECOGNIZED
AS SAFE
1. The authority citation for 21 CFR part 184 continues to read as
follows:
Authority: Secs. 201, 402, 409, 701 of the Federal Food, Drug,
and Cosmetic Act (21 U.S.C. 321, 342, 348, 371).
2. New Sec. 184.1387 is added to subpart B to read as follows:
Sec. 184.1387 Lactase enzyme preparation from Candida
pseudotropicalis.
(a) This enzyme preparation is derived from the nonpathogenic,
nontoxicogenic yeast C. pseudotropicalis. It contains the enzyme
lactase (-D-galactoside galactohydrolase, EC 3.2.1.23), which
converts lactose to glucose and galactose. It is prepared from yeast
that has been grown by a pure culture fermentation process.
(b) The ingredient meets the general requirements and additional
requirements for enzyme preparations in the Food Chemicals Codex, 3d
ed. (1981), pp. 107-110, which are incorporated by reference in
accordance with 5 U.S.C. 552(a) and 1 CFR part 51. Copies are available
from the National Academy Press, 2101 Constitution Ave. NW.,
Washington, DC 20418, or may be examined at the Center for Food Safety
and Applied Nutrition's Library, 200 C St. SW., rm. 3321, Washington,
DC, or at the Office of the Federal Register, 800 North Capitol St.
NW., suite 700, Washington, DC.
(c) In accordance with Sec. 184.1(b)(1), the ingredient is used in
food with no limitations other than current good manufacturing
practice. The affirmation of this ingredient as generally recognized as
safe as a direct human food ingredient is based upon the following
current good manufacturing practice conditions of use:
(1) The ingredient is used as an enzyme, as defined in
Sec. 170.3(o)(9) of this chapter, to convert lactose to glucose and
galactose.
(2) The ingredient is used in food at levels not to exceed current
good manufacturing practice. Current good manufacturing practice is
limited to use of this ingredient to reduce the lactose content in milk
and milk-derived food products where food standards do not preclude
such use.
Dated: February 15, 1996.
Fred R. Shank,
Director, Center for Food Safety and Applied Nutrition.
[FR Doc. 96-4629 Filed 2-28-96; 8:45 am]
BILLING CODE 4160-01-F
Complete official Federal Register PDF
FR Doc. 96-4628 Extension of Authority for Open-Head Fiber Drum Packaging for Liquid Hazardous Materials
[Federal Register Volume 61, Number 41 (Thursday, February 29, 1996)]
[Rules and Regulations]
[Pages 7958-7959]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-4628]
[[Page 7957]]
_______________________________________________________________________
Part VII
Department of Transportation
_______________________________________________________________________
Research and Special Programs Administration
_______________________________________________________________________
49 CFR Part 171
Extension of Authority for Open-Head Fiber Drum Packaging for Liquid
Hazardous Materials; Final Rule
Federal Register / Vol. 61, No. 41 / Thursday, February 29, 1996 /
Rules and Regulations
[[Page 7958]]
DEPARTMENT OF TRANSPORTATION
Research and Special Programs Administration
49 CFR Part 171
[Docket No. HM-221A; Amdt. No. 171-139]
RIN 2137-AC77
Extension of Authority for Open-Head Fiber Drum Packaging for
Liquid Hazardous Materials
AGENCY: Research and Special Programs Administration (RSPA), DOT.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: In accordance with Section 406 of the ``Interstate Commerce
Commission Sunset Act'' (the Act), RSPA is extending the authority to
ship certain liquid hazardous materials in open-head fiber drums that
do not meet performance-oriented packaging standards for hazardous
materials in Packing Group III. This extension expires on the later of
September 30, 1997, or the date on which funds are authorized to be
appropriated for the hazardous materials transportation program for
fiscal years beginning after September 30, 1997.
EFFECTIVE DATE: This final rule is effective on October 1, 1996.
FOR FURTHER INFORMATION CONTACT: Frazer C. Hilder, Office of the Chief
Counsel, Research and Special Programs Administration, U.S. Department
of Transportation, 400 Seventh Street, SW, Washington, DC 20590-0001;
telephone 202-366-4400.
SUPPLEMENTARY INFORMATION: On January 9, 1996, RSPA published a notice
of proposed rulemaking (NPRM) under Docket No. HM-221A, Notice No. 96-1
(61 FR 688), proposing to extend for one additional year, until
September 30, 1997, authority for the transportation of certain liquid
hazardous materials in non-specification open-head fiber drums that do
not meet the performance-oriented packaging standards in the Hazardous
Materials Regulations (HMR), 49 CFR Parts 171-180.
In the absence of this extension, these open-head fiber drums would
not be authorized for shipping these hazardous materials after
September 30, 1996. See 49 CFR 171.14(a)(1)(iii). This is because, in a
final rule in Docket No. HM-181 (56 FR 66124, Dec. 20, 1991), RSPA
eliminated most instances where the HMR had previously authorized the
use of non-specification packagings, including packagings for
environmentally hazardous substances such as polychlorinated biphenyls.
However, to allow for an orderly transition to the performance-oriented
packaging standards for non-bulk packagings also adopted in HM-181,
RSPA authorized packagings meeting the HM-181 performance standards to
be used immediately but provided a five-year phase-out period ending on
September 30, 1996, for previously authorized packagings.
In the January 9, 1996 NPRM, RSPA proposed to add a new paragraph
(a)(2)(iii) to 49 CFR 171.14 to carry out the mandate in paragraphs (a)
and (b) of Section 406 of the Interstate Commerce Commission Sunset Act
(Pub. L. 104-88, Dec. 29, 1995). Section 406 reads as follows:
Sec. 406. Fiber Drum Packaging.
(a) In General.--In the administration of chapter 51 of title
49, United States Code, the Secretary of Transportation shall issue
a final rule within 60 days after the date of the enactment of this
Act authorizing the continued use of fiber drum packaging with a
removable head for the transportation of liquid hazardous materials
with respect to those liquid hazardous materials transported by such
drums pursuant to regulations in effect on September 30, 1991, if--
(1) the packaging is in compliance with regulations of the
Secretary under the Hazardous Materials Transportation Act as in
effect on September 30, 1991; and
(2) the packaging will not be used for the transportation of
hazardous materials that include materials which are poisonous by
inhalation or materials in Packing Groups I and II.
(b) Expiration.--The regulation referred to in subsection (a)
shall expire on the later of September 30, 1997, or the date on
which funds are authorized to be appropriated to carry out chapter
51 of title 49, United States Code (relating to transportation of
hazardous materials), for fiscal years beginning after September 30,
1997.
(c) STUDY.--
(1) IN GENERAL.--Within 90 days after the date of enactment of
this Act, the Secretary shall contract with the National Academy of
Sciences to conduct a study--
(A) to determine whether the requirements of section 5103(b) of
title 49, United States Code (relating to regulations for safe
transportation), as they pertain to fiber drum packaging with a
removable head can be met for the transportation of liquid hazardous
materials (with respect to those liquid hazardous materials
transported by such drums pursuant to regulations in effect on
September 30, 1991) with standards (including fiber drum industry
standards set forth in a June 8, 1992, exemption application
submitted to the Department of Transportation), other than the
performance-oriented packaging standards adopted under docket number
HM-181 contained in part 178 of title 49, Code of Federal
Regulations; and
(B) to determine whether a packaging standard (including such
fiber drum industry standards), other than performance-oriented
packaging standards, will provide an equal or greater level of
safety for the transportation of liquid hazardous materials than
would be provided if such performance-oriented packaging standards
were in effect.
(2) COMPLETION.--The study shall be completed before March 1,
1997, and shall be transmitted to the Committee on Commerce,
Science, and Transportation of the Senate and the Transportation and
Infrastructure Committee of the House of Representatives.
(d) SECRETARIAL ACTION.--By September 30, 1997, the Secretary
shall issue final regulations to determine what standards should
apply to fiber drum packaging with a removable head for
transportation of liquid hazardous materials (with respect to those
liquid hazardous materials transported by such drums pursuant to
regulations in effect on September 30, 1991) after September 30,
1997. In issuing such regulations, the Secretary shall give full and
substantial consideration to the results of the study conducted in
subsection (c).
In the NPRM, RSPA proposed an extension of the transition period
for continued use of non-specification open-head fiber drums for
certain liquid hazardous materials until September 30, 1997.
Recognizing that the transition period might have to be extended beyond
that date, RSPA stated its intention to revisit that issue in the 1997
rulemaking required by section (d).
RSPA requested comments on the proposed rule, including the
possible extension of the transition period to the later of two dates,
September 30, 1997, or the date on which funds are authorized to be
appropriated to carry out the Federal hazardous materials
transportation program for fiscal years beginning after September 30,
1997. RSPA stated that it would ``consider alternatives that commenters
wish to suggest for handling the uncertain length of this extended
transition period * * *'' See 61 FR 689.
In response to the NPRM, RSPA received 13 comments. Several
industry commenters opposed the extension itself on safety, fairness
and uniformity grounds. Those commenters, however, recognized that RSPA
has no discretion and must grant the extension. Some commenters
requested similar extensions beyond October 1, 1996, for use of other
non-specification packagings (e.g., plastic or steel) for
transportation of hazardous materials. Consideration of other
extensions is beyond the scope of this rulemaking.
Two of the commenters supported the proposed one-year extension of
the transition period. Other commenters, including members of Congress,
opposed the unqualified one-year extension and stated that RSPA should
follow the mandate in section (c) and recognize an alternative to the
[[Page 7959]]
September 30, 1997 date for termination of the fiber drum use
extension.
In light of these comments, RSPA is adopting the proposed rule with
modifications. It is deleting the phrase, ``Until September 30, 1997,''
from the beginning of the extension language and adding the following
separate sentence to address the duration of the extension: ``This
authorization expires on the later of September 30, 1997, or the date
on which funds are authorized to be appropriated to carry out chapter
51 of title 49, United States Code (related to transportation of
hazardous materials), for fiscal years beginning after September 30,
1997.'' RSPA is adding the following language to provide a point of
contact about the authorization date: ``Information concerning this
funding authorization date may be obtained by contacting the Office of
the Associate Administrator.''
Regulatory Analyses and Notices
A. Executive Order 12866 and DOT Regulatory Policies and Procedures
This final rule is not considered a significant regulatory action
under section 3(f) of Executive Order 12866 and was not reviewed by the
Office of Management and Budget. This rule is not considered
significant under the regulatory policies and procedures of the
Department of Transportation (44 FR 11034; February 26, 1979). Because
of the minimal economic impact of this final rule, preparation of a
regulatory impact analysis or a regulatory evaluation is not warranted.
B. Executive Order 12612
This final rule has been analyzed in accordance with the principles
and criteria in Executive Order 12612 (``Federalism''). The Federal
hazardous material transportation law (49 U.S.C. 5101-5127) contains an
express preemption provision that preempts State, local and Indian
tribe requirements on certain covered subjects. Covered subjects are:
(i) the designation, description, and classification of
hazardous material;
(ii) the packing, repacking, handling, marking, and placarding
of hazardous material;
(iii) the preparation, execution, and use of shipping documents
pertaining to hazardous material and requirements related to the
number, contents, and placement of those documents;
(iv) the written notification, recording, and reporting of the
unintentional release in transportation; and
(v) the design, manufacturing, fabricating, marking,
maintenance, reconditioning, repairing, or testing of a packaging or
a container represented, marked, certified, or sold as qualified for
use in transporting hazardous material.
This rule concerns the packaging authorized for certain hazardous
materials and, therefore, preempts State, local, or Indian tribe
requirements concerning this subject unless the non-Federal
requirements are ``substantively the same as'' the Federal
requirements. RSPA lacks discretion in this area, and preparation of a
federalism assessment is not warranted.
Section 5125(b)(2) of 49 U.S.C. provides that if DOT issues a
regulation concerning any of the covered subjects after November 16,
1990, DOT must determine and publish in the Federal Register the
effective date of Federal preemption. That effective date may not be
earlier than the 90th day, and not later than two years, following the
date of issuance of the final rule. RSPA has determined that the
effective date of Federal preemption for the continued authorization of
these fiber drums will be October 1, 1996.
C. Regulatory Flexibility Act
This final rule extends the authority for shipment of certain
liquid hazardous materials in open-head fiber drums that do not meet
the performance standards in the HMR. I certify that this rule will not
have a significant economic impact on a substantial number of small
entities.
D. Paperwork Reduction Act
There are no information collection requirements in this final
rule.
E. Regulation Identifier Number (RIN)
A regulation identifier number (RIN) is assigned to each regulatory
action listed in the Unified Agenda of Federal Regulations. The
Regulatory Information Service Center publishes the Unified Agenda in
April and October of each year. The RIN number contained in the
handling of this document can be used to cross-reference this action
with the Unified Agenda.
List of Subjects in 49 CFR Part 171
Exports, Hazardous materials transportation, Imports, Reporting and
recordkeeping requirements.
In consideration of the foregoing, 49 CFR part 171 is amended as
follows:
PART 171--GENERAL INFORMATION, REGULATIONS, AND DEFINITIONS
1. The authority citation for part 171 continues to read as
follows:
Authority: 49 U.S.C. 5101-5127; 49 CFR 1.53.4
2. In Sec. 171.14, a new paragraph (a)(2)(iii) is added to read as
follows:
Sec. 171.14 Transitional provisions for implementing requirements
based on the UN Recommendations.
* * * * *
(a) * * *
(2) * * *
(iii) Non-specification fiber drums. A non-specification fiber drum
with a removable head is authorized for a liquid hazardous material in
Packing Group III that is not poisonous by inhalation for which the
packaging was authorized under the requirements of Part 172 or Part 173
of this subchapter in effect on September 30, 1991. This authorization
expires on the later of September 30, 1997, or the date on which funds
are authorized to be appropriated to carry out chapter 51 of title 49,
United States Code (related to transportation of hazardous materials),
for fiscal years beginning after September 30, 1997. Information
concerning this funding authorization date may be obtained by
contacting the Office of the Associate Administrator for Hazardous
Materials Safety.
* * * * *
Issued in Washington, DC, on February 22, 1996, under authority
delegated in 49 CFR Part 1.
D.K. Sharma,
Administrator.
[FR Doc. 96-4628 Filed 2-28-96; 8:45 am]
BILLING CODE 4910-60-M
Complete official Federal Register PDF
FR Doc. 96-4593 Groundfish of the Bering Sea and Aleutian Islands Area; Offshore Component Pollock in the Bering Sea Subarea
[Federal Register Volume 61, Number 41 (Thursday, February 29, 1996)]
[Rules and Regulations]
[Pages 7754-7755]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-4593]
-----------------------------------------------------------------------
DEPARTMENT OF COMMERCE
50 CFR Part 675
[Docket No. 960129019-6019-01; I.D. 022396C]
Groundfish of the Bering Sea and Aleutian Islands Area; Offshore
Component Pollock in the Bering Sea Subarea
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Closure.
-----------------------------------------------------------------------
SUMMARY: NMFS is prohibiting directed fishing for pollock by vessels
catching pollock for processing by the offshore component in the Bering
Sea subarea (BS) of the Bering Sea and Aleutian Islands management area
(BSAI). This action is necessary to prevent exceeding the first
seasonal allowance of the pollock total allowable catch (TAC)
apportioned to vessels harvesting pollock for processing by the
offshore component in the BS.
EFFECTIVE DATE: 12 noon, Alaska local time (A.l.t.), February 26, 1996,
until 12 noon, A.l.t., April 15, 1996.
FOR FURTHER INFORMATION CONTACT: Mary Furuness, 907-586-7228.
SUPPLEMENTARY INFORMATION: The groundfish fishery in the BSAI exclusive
economic zone is managed by the NMFS according to the Fishery
Management Plan for the Groundfish Fishery of the Bering Sea and
Aleutian Islands Area (FMP) prepared by the North Pacific Fishery
Management Council under authority of the Magnuson Fishery Conservation
and Management Act. Fishing by U.S. vessels is governed by regulations
implementing the FMP at 50 CFR parts 620 and 675.
In accordance with Sec. 675.20(a)(7)(ii), the first seasonal
allowance of pollock
[[Page 7755]]
for vessels catching pollock for processing by the offshore component
in the BS was established by the Final 1996 Harvest Specifications of
Groundfish (61 FR 4311, February 5, 1996) as 295,864 metric tons (mt).
The Director, Alaska Region, NMFS (Regional Director), has
determined in accordance with Sec. 675.20(a)(8), that the first
seasonal allowance of pollock TAC for vessels catching pollock for
processing by the offshore component in the BS soon will be reached.
Therefore, the Regional Director has established a directed fishing
allowance of 273,864 mt with consideration that 22,000 mt will be taken
as incidental catch in directed fishing for other species in the BS.
Consequently, NMFS is prohibiting directed fishing for pollock by
vessels catching pollock for processing by the offshore component in
the BS. This closure is effective 12 noon, February 26, 1996, until 12
noon, A.l.t., April 15, 1996. Under Sec. 675.20(a)(2)(ii), the second
seasonal allowance will become available 12 noon, A.l.t., August 15
through the end of the fishing year.
Maximum retainable bycatch amounts for applicable gear types may be
found in the regulations at Sec. 675.20(h).
Classification
This action is taken under Sec. 675.20 and is exempt from review
under E.O. 12866.
Authority: 16 U.S.C. 1801 et seq.
Dated: February 23, 1996.
Donald J. Leedy,
Acting Director, Office of Fisheries Conservation and Management,
National Marine Fisheries Service.
[FR Doc. 96-4593 Filed 2-26-96; 11:25 am]
BILLING CODE 3510-22-F
Complete official Federal Register PDF
FR Doc. 96-4592 Groundfish of the Bering Sea and Aleutian Islands Area; Species in the Rock Sole/Flathead Sole/``Other Flatfish'' Fishery Category by Vessels Using Trawl Gear
[Federal Register Volume 61, Number 41 (Thursday, February 29, 1996)]
[Rules and Regulations]
[Page 7755]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-4592]
-----------------------------------------------------------------------
DEPARTMENT OF COMMERCE
50 CFR Part 675
[Docket No. 960129019-6019-01; I.D. 022396D]
Groundfish of the Bering Sea and Aleutian Islands Area; Species
in the Rock Sole/Flathead Sole/``Other Flatfish'' Fishery Category by
Vessels Using Trawl Gear
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Closure.
-----------------------------------------------------------------------
SUMMARY: NMFS is closing the directed fishery for species in the rock
sole/flathead sole/``other flatfish'' fishery category by vessels using
trawl gear in the Bering Sea and Aleutian Islands management area
(BSAI). This action is necessary to prevent exceeding the first
seasonal bycatch allowance of Pacific halibut apportioned to the trawl
rock sole/flathead sole/``other flatfish'' fishery category in the
BSAI.
EFFECTIVE DATE: 12 noon, Alaska local time (A.l.t.), February 26, 1996,
until 12 noon, A.l.t., April 1, 1996.
FOR FURTHER INFORMATION CONTACT: Andrew N. Smoker, 907-586-7228.
SUPPLEMENTARY INFORMATION: The groundfish fishery in the BSAI exclusive
economic zone is managed by NMFS according to the Fishery Management
Plan for the Groundfish Fishery of the Bering Sea and Aleutian Islands
Area (FMP) prepared by the North Pacific Fishery Management Council
under authority of the Magnuson Fishery Conservation and Management
Act. Fishing by U.S. vessels is governed by regulations implementing
the FMP at 50 CFR parts 620 and 675.
The first seasonal bycatch allowance of Pacific halibut for the
BSAI trawl rock sole/flathead sole/``other flatfish'' fishery category,
which is defined at Sec. 675.21(b)(1)(iii)(B)(2), was established by
the Final 1996 Harvest Specifications of Groundfish (61 FR 4311,
February 5, 1996) as 453 metric tons.
The Director, Alaska Region, NMFS, has determined, in accordance
with Sec. 675.21(c)(1)(iii), that the first seasonal bycatch allowance
of Pacific halibut apportioned to the trawl rock sole/flathead sole/
``other flatfish'' fishery in the BSAI has been caught. Therefore, NMFS
is prohibiting directed fishing for species in the rock sole/flathead
sole/``other flatfish'' fishery category by vessels using trawl gear in
the BSAI.
Maximum retainable bycatch amounts for applicable gear types may be
found in the regulations at Sec. 675.20(h).
Classification
This action is taken under 50 CFR 675.21 and is exempt from review
under E.O. 12866.
Authority: 16 U.S.C. 1801 et seq.
Dated: February 23, 1996.
Donald J. Leedy,
Acting Director, Office of Fisheries Conservation and Management,
National Marine Fisheries Service.
[FR Doc. 96-4592 Filed 2-26-96; 11:25 am]
BILLING CODE 3510-22-F
Complete official Federal Register PDF
FR Doc. 96-4587 Removal of U.S. Grade Standards
[Federal Register Volume 61, Number 41 (Thursday, February 29, 1996)]
[Rules and Regulations]
[Pages 7687-7688]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-4587]
========================================================================
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. 41 / Thursday, February 29, 1996 /
Rules and Regulations
[[Page 7687]]
DEPARTMENT OF AGRICULTURE
Grain Inspection, Packers and Stockyards Administration
7 CFR Part 868
Removal of U.S. Grade Standards
AGENCY: Grain Inspection, Packers and Stockyards Administration.
ACTION: Interim final rule with request for comments.
-----------------------------------------------------------------------
SUMMARY: This rule will remove the voluntary U.S. grade standards for
Beans, Whole Dry Peas, Split Peas, and Lentils from the Code of Federal
Regulations (CFR). These are an accumulation of regulations which have
been developed for more than 75 years to facilitate the marketing of
agricultural commodities by providing a uniform language which may be
used to describe the quality of various agricultural commodities as
valued in the marketplace. The voluntary standards and all subsequent
revisions or new standards will be made available in a separate
publication. This regulatory action is being taken as part of the
National Performance Review program to eliminate unnecessary
regulations and improve those that remain in force.
In carrying out this responsibility, the Administrator of the Grain
Inspection, Packers and Stockyards Administration (GIPSA), will ensure
that proposed, new or revised voluntary standards will appear in the
``Notices'' section of the Federal Register and that the public will
have an opportunity to comment.
EFFECTIVE DATE: February 29, 1996. Comments must be received by April
29, 1996.
ADDRESSES: Interested persons are invited to submit written comments
concerning this interim final rule. Written comments may mailed or
faxed to George Wollam, Regulatory Liaison, USDA, GIPSA, Room 0623-S,
P.O. Box 96454, Washington, DC 20090-6454; FAX (202) 720-4628. Comments
may also be sent by electronic mail or Internet to:
[email protected].
All comments received will be available for public inspection
during regular business hours in Room 0623-South Building, 1400
Independence Avenue, S.W., Washington, D.C. (7 CFR 1.27(b)).
FOR FURTHER INFORMATION CONTACT: George Wollam (202) 720-0292.
SUPPLEMENTARY INFORMATION: This regulatory action is being taken as
part of the National Performance Review program to eliminate
unnecessary regulations and improve those that remain in force.
Executive Order 12866
The Department of Agriculture (Department) is issuing this rule in
conformance with Executive Order 12866.
Executive Order 12778
This rule has been reviewed under Executive Order 12778, Civil
Justice Reform. This rule is not intended to have preemptive effect
with respect to any State or local laws, regulations, or policies
unless they present an irreconcilable conflict with this rule. This
rule is not intended to have retroactive effect. There are no
administrative procedures which must be exhausted prior to any judicial
challenge to this rule or the application of its provisions.
Effect on Small Entities
This action was reviewed under the Regulatory Flexibility Act (RFA)
(5 U.S.C 601 et seq.). The Administrator of (GIPSA) has determined that
this action will not have a significant economic impact on a
substantial number of small entities. Although this action will remove
provisions from the CFR, small entities should see no changes as the
standards will be administered under the direction of the Administrator
to ensure public input to their formulation and convenient availability
to those who want copies of the standards.
Paperwork Reduction Act
In accordance with the provisions of the Paperwork Reduction Act,
the information collection requirements contained in the provisions to
be amended have been previously approved by the Office of Management
and Budget under control number 0580-0013.
Background
The Grain Inspection, Packers and Stockyards Administration is
delegated by the Secretary of Agriculture, under the Agricultural
Marketing Act of 1946 (AMA), to provide programs for Federal grading/
certification services and to develop and establish efficient marketing
methods and practices for designated agricultural commodities. For many
years these agricultural programs have facilitated the marketing of
agricultural commodities by developing official U.S. grade standards
which provide uniform language that may be used to describe the
characteristics of more than 19 commodities as valued by the market
place. The AMA standards are widely used in private contracts,
government procurement, marketing communication and, for some
commodities, consumer information. The standards through the years have
been promulgated as regulations and codified in the CFR.
Rapid changes in consumer preferences, together with associated
changes in commodity characteristics, processing technology, and
marketing practices have out paced the revision or issuance of
regulations. As a result, industry and the marketplace could be
burdened with outdated trading language. The President's regulatory
review initiative has provided the impetus to develop new approaches to
develop new approaches to meet more effectively the needs of U.S.
industry, government agencies, and consumers and still reduce the
regulatory burden.
To meet this initiative, regulations that are currently in the CFR
which could be administered under the authority of GIPSA are being
removed from the CFR. With respect to the official grade standards
except those used to implement government price support. Therefore, the
grade standards for Rice (7 CFR Secs. 868.201-316) will continue to
appear in the CFR, although the text will also be available from GIPSA,
along with other grade standards.
This rule eliminates selected regulations which encompass
approximately 22 pages of the CFR covering: Standards for Beans, Whole
Dry Peas, Split Peas, and Lentils.
[[Page 7688]]
The following is an outline of those standards being removed from
the CFR.
------------------------------------------------------------------------
CFR section Title of standards being removed from the CFR
------------------------------------------------------------------------
868.101-142... Subpart B--United States Standards for Beans.
868.401-410... Subpart F--United States Standards for Whole Dry Peas.
868.501-510... Subpart G--United States Standards for Split Peas.
868.601-611... Subpart H--United States Standards for Lentils.
------------------------------------------------------------------------
To ensure that these standards will be developed, issued, and
revised in accordance with procedures that continue to ensure a fair
and open process, all new and proposed revisions to standards being
removed from the CFR's will be published in the Federal Register as
``Notice'' with adequate time for public comment. A final version of
the standard will also be published in the Federal Register.
In developing or revising existing grade standards, the
Administrator must first determine that a new or revised standard is
needed to facilitate trade in a particular commodity. Second, because
use of the standards is voluntary, there must be demonstrated interest
and support from the affected industry or other interested parties. And
third, the standards must be practical to use.
The initial requests for development or revision of a standard may
come from the industry, trade or consumer groups, State departments of
agriculture, the U.S. Department of Agriculture, or others. Once a
request has been received, GIPSA will coordinate procedures to gather
information needed to move forward with the new or revised standard.
After this process is completed, a notice of proposed standards change
will be published in the Federal Register to solicit comment from any
interested parties (normally 30 to 60 days). After evaluating the
comments received from interested parties, GIPSA will determine whether
to proceed, develop a new proposal, or terminate the process. The
public will be informed through a press release and notice in the
Federal Register.
In addition to publication in the Federal Register, GIPSA will
distribute copies of each standard on request as a pamphlet or other
means under the direction of the Administrator of GIPSA.
Pursuant to 5 U.S.C. 553, it is also found and determined upon good
cause that it is impracticable, unnecessary, and contrary to the public
interest to give preliminary notice prior to putting this rule into
effect and that good cause exists for not postponing the effective date
of this rule until 30 days after publication in the Federal Register
because: (1) The standards are voluntary; (2) no changes are being made
to the standards by this docket, and (3) this is in-line with the
President's regulatory review initiative.
List of Subjects in 7 CFR Part 868
Administrative practice and procedures, Agricultural commodities,
Beans, Whole Dry Peas, Split Peas, and Lentils.
For the reasons set forth in the preamble, 7 CFR Part 868 is
amended as follows:
PART 868--GENERAL REGULATIONS AND STANDARDS FOR CERTAIN
AGRICULTURAL COMMODITIES
1. The authority citation for Part 868 continues to read as
follows:
Authority: Secs. 202-208, 60 Stat. 1087, as amended (7 U.S.C.
1621 et seq.).
Subpart B (Secs. 868.101-868.142)--[Removed and Reserved]
2. In part 868, Subpart B (Secs. 868.101 through 868.142) is
removed and reserved.
Subpart F (Secs. 868.401-868.410)--[Removed]
3. In part 868, Subpart F (Secs. 868.401 through 868.410) is
removed.
Subpart G (Secs. 868.501-868.510)--[Removed]
4. In part 868, Subpart G (Secs. 868.501 through 868.510) is
removed.
Subpart H (Secs. 868.601-868.611)--[Removed]
5. In part 868, Subpart H (Secs. 868.601 through 868.611) is
removed.
David R. Shipman,
Acting Administrator.
[FR Doc. 96-4587 Filed 2-28-96; 8:45 am]
BILLING CODE 3410-EN-P
Complete official Federal Register PDF
FR Doc. 96-4585 Elimination of Unnecessary Codifications
[Federal Register Volume 61, Number 41 (Thursday, February 29, 1996)]
[Rules and Regulations]
[Pages 7942-7944]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-4585]
[[Page 7941]]
_______________________________________________________________________
Part IV
Department of Housing and Urban Development
_______________________________________________________________________
Office of the Secretary
_______________________________________________________________________
24 CFR Subtitle A, et al.
Elimination of Unnecessary Codifications; Final Rule
Federal Register / Vol. 61, No. 41 / Thursday, February 29, 1996 /
Rules and Regulations
[[Page 7942]]
DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT
Office of the Secretary
24 CFR Subtitle A, Subtitle B, and Parts 200, 202a, 222, 233, 241,
260, 266, 267 and 850
[Docket No. FR-3993-F-01]
RIN 2501-AC14
Elimination of Unnecessary Codifications
AGENCY: Office of the Secretary, HUD.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: This final rule removes from title 24 of the Code of Federal
Regulations the Department's codified appendices, parts, subparts, and
text which are unnecessary. Following a review of existing HUD
regulations in accordance with the President's regulatory reinvention
initiative, the Department has determined that the codified appendices,
parts, subparts, and text identified in this rule are unnecessary to be
retained in the Code of Federal Regulations because the programs will
not receive additional funding; no regulatory requirements are included
in the codifications and, therefore, the provisions need not be
codified or can be provided through other non-rulemaking means; e.g.,
notices or handbooks; the regulatory text is duplicative and can be
found elsewhere; the program has ended; or there are only a few
outstanding mortgages or contracts under the program.
This final rule also removes several provisions describing cross-
cutting definitions and HUD's waiver authority that were not addressed
in the Department's final rule creating part 5, which was published on
February 9, 1996. Part 5 was designed to set forth those definitions
and program requirements which cut across several of the Department's
programs.
EFFECTIVE DATE: April 1, 1996.
FOR FURTHER INFORMATION CONTACT: Camille E. Acevedo, Assistant General
Counsel for Regulations, Department of Housing and Urban Development,
Room 10276, 451 Seventh Street, SW, Washington, DC 20410. Telephone:
(202) 708-3055; TDD: (202) 708-3259.
SUPPLEMENTARY INFORMATION:
A. Elimination of Unnecessary Codifications
President Clinton's memorandum of March 4, 1995, titled
``Regulatory Reinvention Initiative'' directed heads of Federal
departments and agencies to review all existing regulations to
eliminate those that are outdated and modify others to increase
flexibility and reduce burden. As a part of HUD's overall effort to
reduce regulatory burden and streamline the content of title 24 of the
Code of Federal Regulations, this rule removes those appendices, parts,
subparts, and text which are unnecessary. Guidance presently provided
in these appendices codified will be available through other non-
rulemaking means.
To the extent that regulations are needed to implement new
legislation, they will be issued separately from this document. Any
determination to issue new regulations will be carefully considered to
ensure that it is consistent with the President's regulatory reform
efforts and the principles in Executive Order 12866.
Appendices unnecessary because the programs will not receive
additional funding: 24 CFR Subtitle A, Appendices A and B. Appendices A
and B of Subtitle A, which contain the program guidelines for the HOPE
1 and HOPE 2 programs will be removed.
Note: HOPE 1 (Appendix A) implementation and planning grantees
will comply with the HOPE 1 program guidelines published in the
Federal Register on January 14, 1992, at 57 FR 1527, as modified by
any subsequent Federal statutory enactments or executive orders.
HOPE 2 (Appendix B) implementation and planning grantees will comply
with the HOPE 2 program guidelines published in the Federal Register
on January 14, 1992, at 57 FR 1562, as modified by any subsequent
Federal statutory enactments or executive orders. Grantees for both
programs also remain subject to any requirements set forth in the
implementation or planning grant agreement, as applicable, including
HUD handbooks and notices.
Appendices and subparts unnecessary because no regulatory
requirements are included and the provisions need not be codified or
can be provided through other non-rulemaking means; e.g., notices or
handbooks: 24 CFR Subtitle B, Chapter I, Subchapter A, Appendices II,
III and IV; 24 CFR part 200, subparts A, C, and D (except for
Sec. 200.93); 24 CFR part 265.
Removal of Appendices. Appendices II, III, and IV of Subtitle B,
Chapter I, Subchapter II contain the Fair Housing Accessibility
Guidelines, the preamble to the final Fair Housing Accessibility
Guidelines, and a document entitled ``Questions and Answers about the
Fair Housing Accessibility Guidelines. The Fair Housing Accessibility
Guidelines are not mandatory, nor do they prescribe specific
requirements which must be met and which if not met, would constitute
unlawful discrimination under the Fair Housing Act. The purpose of the
guidelines is to provide technical guidance on designing dwelling units
as required by the Fair Housing Amendments Act. Removal of the
Guidelines will make it easier for HUD to update the Guidelines, if
necessary and appropriate, to address issues that may arise with
respect to new types of designs for dwelling units (the CFR is updated
only once a year).
Note: Copies of the Fair Housing Accessibility Guidelines
(Appendix II), the preamble to the final Fair Housing Act
Accessibility Guidelines (Appendix III), and the document entitled
``Questions and Answers about the Fair Housing Accessibility
Guidelines'' (Appendix IV) are available from the Office of Fair
Housing and Equal Opportunity, Department of Housing and Urban
Development, Room 5230, 451 Seventh Street, SW, Washington, DC
20410, telephone (202) 708-0288. Hearing or speech-impaired
individuals may call HUD's TDD number (202) 708-0113 or 1-800-877-
8399 (Federal Information Relay Service TDD). Other than the 800
number, these are not toll-free numbers.
Removal of Subparts A, C and D from Part 200. Subparts A, C, and D
of part 200 pertain to origin and establishment, organization and
management, and delegations to particular positions, respectively.
These provisions need not be codified (except for Sec. 200.93) and will
be made available through non-rulemaking means. Section 200.93
(presently contained in subpart D) pertains to the membership and
functions of the Multifamily Participation Review Committee and is
being retained as a new Sec. 200.227 within subpart H.
Subpart unnecessary because the regulatory text is duplicative and
can be found elsewhere by cross-reference: Subpart I of 24 CFR part 200
is being removed except for Sec. 200.300, pertaining to
nondiscrimination and fair housing policy, which is being retained with
minor editorial revisions to maintain the cross-references to the
controlling regulations.
Part unnecessary because the program has ended or was never
implemented: 24 CFR parts 202a and 260.
Part 202a, which pertains to Title I Mortgage Insurance, is being
removed because the program has expired. Part 260 pertains to Interest
Subsidy Grants, for which regulations were promulgated, but the program
was never implemented.
Parts for expiring programs, under which there are only a few
outstanding mortgages, contracts or grants: 24 CFR part 850.
No new grants have been issued under part 850, the Housing
Development Grants Program. This is an expiring program.
[[Page 7943]]
Note: The grants associated with part 850 (Housing Development
grants) will continue to be administered under the regulations that
existed immediately before April 1, 1996.
B. Cross-Cutting requirements. Continued consolidation of certain
cross-cutting requirements.
On February 9, 1996 (61 FR 5198), the Department published a final
rule creating a new 24 CFR part 5. HUD established part 5 to set forth
those requirements which are applicable to one or more program
regulations. Consolidation of these requirements in part 5 will
eliminate redundancy in title 24 and assist in the Department's overall
efforts to streamline the content of its regulations.
This rule removes Secs. 222.248, 233.248, 266.35, and 267.4 which
set forth the Department's waiver authority. Further, this rule also
removes the definition of the term ``Secretary'' in Sec. 241.1. HUD's
waiver authority and the definition of ``Secretary'' are already set
forth in 24 CFR part 5.
Justification for Final Rule
In accordance with 24 CFR part 10, it is the practice of the
Department to offer interested parties the opportunity to comment on
proposed regulations. However, this rule merely removes unnecessary
appendices, parts, subparts and text from title 24 of the Code of
Federal Regulations. Removal of these codifications does not establish
or affect substantive policy. Therefore, the Department has determined
that public comment is unnecessary and contrary to the public interest.
Other Matters
Environmental Review
This rulemaking does not have an environmental impact. This
rulemaking simply amends existing regulations by removing unnecessary
provisions and does not alter the environmental effect of the
regulations being amended. Findings of No Significant Impact with
respect to the environment were made in accordance with HUD regulations
in 24 CFR part 50 that implement section 102(2)(C) of the National
Environmental Policy Act of 1969 (42 U.S.C. 4332) at the time of
development of the implementing regulations. Those Findings remain
applicable to this rule and are available for public inspection between
7:30 a.m. and 5:30 p.m. weekdays in the Office of the Rules Docket
Clerk at the above address.
Regulatory Flexibility Act
The Secretary, in accordance with the Regulatory Flexibility Act (5
U.S.C. 605(b)), has reviewed this rule before publication and by
approving it certifies that this rule does not have a significant
economic impact on a substantial number of small entities because this
rule pertains to the administrative matter of removing unnecessary
codifications from the Code of Federal Regulations.
Executive Order 12612, Federalism
The General Counsel, as the Designated Official under section 6(a)
of Executive Order 12612, Federalism, has determined that this rule
does not have ``federalism implications'' because it does not have
substantial direct effects on the States (including their political
subdivisions) or on the distribution of power and responsibilities
among the various levels of government.
Executive Order 12606, The Family
The General Counsel, as the Designated Official under Executive
Order 12606, The Family, has determined that this rule does not have
potential significant impact on family formation, maintenance, and
general well-being.
List of Subjects
24 CFR Part 200
Administrative practice and procedure, Claims, Equal employment
opportunity, Fair housing, Home improvement, Housing standards,
Incorporation by reference, Lead poisoning, Loan programs--housing and
community development, Minimum property standards, Mortgage insurance,
Organization and functions (Government agencies), Penalties, Reporting
and recordkeeping requirements, Social security, Unemployment
compensation, Wages.
24 CFR Part 202a
Mortgage insurance.
24 CFR Part 222
Condominiums, Military personnel, Mortgage insurance.
24 CFR Part 233
Home improvement, Loan programs--housing and community development,
Mortgage insurance, Reporting and recordkeeping requirements.
24 CFR Part 241
Energy conservation, Home improvement, Loan programs--housing and
community development, Mortgage insurance, Reporting and recordkeeping
requirements, Solar energy.
24 CFR Part 260
Grant programs--housing and community development, Low and moderate
income housing.
24 CFR Part 266
Aged, Fair housing, Intergovernmental relations, Mortgage
insurance, Low and moderate income housing, Reporting and recordkeeping
requirements.
24 CFR Part 267
Appraisals, Mortgage insurance, Property valuation, Reporting and
recordkeeping requirements.
24 CFR Part 850
Grant programs--housing and community development, Low and moderate
income housing, Reporting and recordkeeping requirements.
Accordingly, pursuant to the Secretary's authority under 42 U.S.C.
3535(d), subtitle A, subtitle B, and parts 200, 202a, 222, 233, 241,
260, 266, 267, and 850 of title 24 of the Code of Federal Regulations
are amended as follows:
Subtitle A--Office of the Secretary, Department of Housing and Urban
Development
Appendices A and B of Subtitle A [Removed]
1. Appendices A and B to subtitle A are removed.
Subtitle B--Regulations Relating to Housing and Urban Development
CHAPTER I--OFFICE OF ASSISTANT SECRETARY FOR EQUAL OPPORTUNITY,
DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT
Subchapter A--Fair Housing
Appendices II, III, and IV of Subtitle B, Chapter I, Subchapter A
[Removed]
2. Subtitle B, chapter I, subchapter A is amended by removing
Appendices II, III, and IV.
PART 200--INTRODUCTION
3. Part 200 is amended:
Subparts A and C [Removed and Reserved]
a. By removing and reserving subparts A (Secs. 200.1 through 200.4)
and C (Secs. 200.40 through 200.44);
Sec. 200.93 [Redesignated as Sec. 200.27]
b. By redesignating Sec. 200.93 as Sec. 200.227;
Subpart D [Removed and Reserved]
c. By removing and reserving subpart D (Secs. 200.50 through
200.129);
[[Page 7944]]
Sec. 200.224 [Amended]
d. By amending Sec. 200.224 by removing the reference to
``Sec. 200.93'', and adding in its place ``Sec. 200.227''; and
e. By revising subpart I, to read as follows:
Subpart I--Nondiscrimination and Fair Housing
Sec. 200.300 Nondiscrimination and fair housing policy.
Federal Housing Administration programs shall be administered in
accordance with:
(a) The nondiscrimination and fair housing requirements set forth
in 24 CFR part 5; and
(b) The affirmative fair housing marketing requirements in 24 CFR
part 200, subpart M and 24 CFR part 108.
PART 202a [REMOVED]
4. Part 202a is removed.
PART 222--SERVICEPERSON'S MORTGAGE INSURANCE
Sec. 222.248 [Removed]
5. Section 222.248 is removed.
PART 233--EXPERIMENTAL HOUSING MORTGAGE INSURANCE
Sec. 233.248 [Removed]
6. Section 233.248 and the undesignated heading preceding it are
removed.
PART 241--SUPPLEMENTARY FINANCING FOR INSURED PROJECT MORTGAGES
Sec. 241.1 [Amended]
7. Section 241.1 is amended by removing paragraph (j) and by
redesignating paragraphs (k) and (l) and paragraphs (j) and (k),
respectively.
PART 260 [REMOVED]
8. Part 260 is removed.
PART 266--HOUSING FINANCE AGENCY RISK-SHARING PROGRAM FOR INSURED
AFFORDABLE MULTIFAMILY PROJECT LOANS
Sec. 266.35 [Removed]
9. Section 266.35 is removed.
PART 267--APPRAISAL AND PROPERTY VALUATION
Sec. 267.4 [Removed]
10. Section 267.4 is removed.
PART 850--HOUSING DEVELOPMENT GRANTS
11. Section 850.1 is revised to read as follows:
Sec. 850.1 Applicability and savings clause.
(a) Applicability. This part implements the Housing Development
Grant Program contained in section 17 of the United States Housing Act
of 1937 (42 U.S.C. 1437o). The Program authorized the Secretary to make
housing development grants to support the new construction or
substantial rehabilitation of real property to be used primarily for
residential rental purposes. Section 289(b)(1) of the Cranston-Gonzalez
National Affordable Housing Act (42 U.S.C. 12839) repealed section 17
effective October 1, 1991. Section 289(a) prohibited new grants under
the Housing Development Grant Program except for projects for which
binding commitments had been entered into prior to October 1, 1991.
(b) Savings clause. Any grant made pursuant to a binding commitment
entered into before October 1, 1991 will continue to be governed by
subparts A through E of this part in effect immediately before April 1,
1996, and by subpart F of this part as currently in effect.
Sec. 850.3 [Removed]
12. Section 850.3 is removed.
Subparts B, C, D, and E [Removed and Reserved]
13. Subparts B (Secs. 850.11 through 850.17), C (Secs. 850.31
through 850.39), D (Secs. 850.61 through 850.79), and E (Secs. 850.101
through 850.107) are removed and reserved.
Dated: February 22, 1996.
Henry G. Cisneros,
Secretary.
[FR Doc. 96-4585 Filed 2-28-96; 8:45 am]
BILLING CODE 4210-32-P
Complete official Federal Register PDF
FR Doc. 96-4570 Approval and Promulgation of Implementation Plans; California State Implementation Plan Revision, Mojave Desert Air Quality Management District and Ventura County Air Pollution Control District
[Federal Register Volume 61, Number 41 (Thursday, February 29, 1996)]
[Rules and Regulations]
[Pages 7706-7709]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-4570]
=======================================================================
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[CA 71-10-7281a; FRL-5422-9]
Approval and Promulgation of Implementation Plans; California
State Implementation Plan Revision, Mojave Desert Air Quality
Management District and Ventura County Air Pollution Control District
AGENCY: Environmental Protection Agency (EPA).
ACTION: Direct final rule.
-----------------------------------------------------------------------
SUMMARY: EPA is taking direct final action on revisions to the
California State Implementation Plan. The revisions concern rules from
the Mojave Desert Air Quality Management District (MDAQMD) and the
Ventura County Air
[[Page 7707]]
Pollution Control District (VCAPCD). This approval action will
incorporate these rules into the federally approved SIP. The intended
effect of approving these rules is to regulate emissions of volatile
organic compounds (VOCs) in accordance with the requirements of the
Clean Air Act, as amended in 1990 (CAA or the Act). The rules control
VOC emissions from asphalt roofing operation, semiconductor
manufacturing operations, and glycol dehydrators. Thus, EPA is
finalizing the approval of these revisions into the California SIP
under provisions of the CAA regarding EPA action on SIP submittals,
SIPs for national primary and secondary ambient air quality standards
and plan requirements for nonattainment areas.
DATES: This action is effective on April 29, 1996 unless adverse or
critical comments are received by April 1, 1996. If the effective date
is delayed, a timely notice will be published in the Federal Register.
ADDRESSES: Copies of the rule revisions and EPA's evaluation report for
each rule are available for public inspection at EPA's Region IX office
during normal business hours. Copies of the submitted rule revisions
are available for inspection at the following locations:
Rulemaking Section (A-5-3), Air and Toxics Division, U.S. Environmental
Protection Agency, Region IX, 75 Hawthorne Street, San Francisco, CA
94105
Environmental Protection Agency, Air Docket (6102), 401 ``M'' Street,
S.W., Washington, D.C. 20460
California Air Resources Board, Stationary Source Division, Rule
Evaluation Section, 2020 ``L'' Street, Sacramento, CA 95814
Mojave Desert Air Quality Management District, 15428 Civic Drive, Suite
200, Victorville, CA 92392
Ventura County Air Pollution Control District, 669 County Square Drive,
Ventura, CA 93003
FOR FURTHER INFORMATION CONTACT: Patricia A. Bowlin, Rulemaking Section
(A-5-3), Air and Toxics Division, U.S. Environmental Protection Agency,
Region IX, 75 Hawthorne Street, San Francisco, CA 94105, Telephone:
(415) 744-1188.
SUPPLEMENTARY INFORMATION:
Applicability
The rules being approved into the California SIP include: MDAQMD
Rule 471, Asphalt Roofing Operations; VCAPCD Rule 74.28, Asphalt
Roofing Operations; VCAPCD Rule 74.21, Semiconductor Manufacturing;
VCAPCD Rule 71.5, Glycol Dehydrators; and VCAPCD Rule 71, Crude Oil and
Reactive Organic Compound Liquids. The California Air Resources Board
submitted these rules to EPA on December 22, 1994; November 18, 1993;
July 13, 1994; and February 24, 1995 (Rules 71 and 71.5) respectively.
Background
On March 3, 1978, EPA promulgated a list of ozone nonattainment
areas under the provisions of the Clean Air Act, as amended in l977
(1977 Act or pre-amended Act), that included the Southeast Desert
Modified AQMA Area 1 and the Ventura County Area. 43 FR 8964, 40
CFR 81.305. On May 26, 1988, EPA notified the Governor of California,
pursuant to section 110(a)(2)(H) of the 1977 Act, that the above
districts' portions of the California SIP were inadequate to attain and
maintain the ozone standard and requested that deficiencies in the
existing SIP be corrected (EPA's SIP-Call). On November 15, 1990, the
Clean Air Act Amendments of 1990 were enacted. Pub. L. 101-549, 104
Stat. 2399, codified at 42 U.S.C. 7401-7671q. In amended section
182(a)(2)(A) of the CAA, Congress statutorily adopted the requirement
that nonattainment areas fix their deficient reasonably available
control technology (RACT) rules for ozone and established a deadline of
May 15, 1991 for states to submit corrections of those deficiencies.
\1\ Portions of MDAQMD lie within the Southeast Desert Modified
AQMA Area.
---------------------------------------------------------------------------
Section 182(a)(2)(A) applies to areas designated as nonattainment
prior to enactment of the amendments and classified as marginal or
above as of the date of enactment. It requires such areas to adopt and
correct RACT rules pursuant to pre-amended section 172(b) as
interpreted in pre-amendment guidance.2 EPA's SIP-Call used that
guidance to indicate the necessary corrections for specific
nonattainment areas. The Southeast Desert Modified AQMA Area is
classified as Severe-17, and the Ventura County Area is classified as
Severe-15 3; therefore, these areas were subject to the RACT fix-
up requirement and the May 15, 1991 deadline.
\2\ Among other things, the pre-amendment guidance consists of
those portions of the proposed Post-1987 ozone and carbon monoxide
policy that concern RACT, 52 FR 45044 (November 24, 1987); ``Issues
Relating to VOC Regulation Cutpoints, Deficiencies, and Deviations,
Clarification to Appendix D of November 24, 1987 Federal Register
Notice'' (Blue Book) (notice of availability was published in the
Federal Register on May 25, 1988); and the existing control
technique guidelines (CTGs).
\3\ Southeast Desert Modified AQMA Area and Ventura County Area
retained their designations of nonattainment and were classified by
operation of law pursuant to sections 107(d) and 181(a) upon the
date of enactment of the CAA. See 55 FR 56694 (November 6, 1991).
---------------------------------------------------------------------------
The State of California submitted many revised RACT rules for
incorporation into its SIP on December 22, 1994; November 18, 1993;
July 13, 1994; and February 24, 1995, including the rules being acted
on in this notice. This notice addresses EPA's direct-final action for
MDAQMD Rule 471, Asphalt Roofing Operations; VCAPCD Rule 74.28, Asphalt
Roofing Operations; VCAPCD Rule 74.21, Semiconductor Manufacturing;
VCAPCD Rule 71.5, Glycol Dehydrators; and VCAPCD Rule 71, Crude Oil and
Reactive Organic Liquids. The MDAQMD adopted Rule 471 on December 21,
1994. The VCAPCD adopted Rule 74.28 on May 10, 1994; Rule 74.21 on
April 6, 1993; and Rules 71.5 and 71 on December 13, 1994. These
submitted rules were found to be complete on January 3, 1995; September
12, 1994; December 23, 1993; and March 10, 1995 pursuant to EPA's
completeness criteria that are set forth in 40 CFR part 51 Appendix V
4 and are being finalized for approval into the SIP.
\4\ EPA adopted the completeness criteria on February 16, 1990
(55 FR 5830) and, pursuant to section 110(k)(1)(A) of the CAA,
revised the criteria on August 26, 1991 (56 FR 42216).
---------------------------------------------------------------------------
The submitted rules control VOC emissions from the operation of
roofing kettles, the manufacture of semiconductors, and the use of
glycol dehydrators. VOCs contribute to the production of ground level
ozone and smog. The rules were adopted as part of each district's
efforts to achieve the National Ambient Air Quality Standard (NAAQS)
for ozone and in response to EPA's SIP-Call and the section
182(a)(2)(A) CAA requirement. The following is EPA's evaluation and
final action for these rules.
EPA Evaluation and Action
In determining the approvability of a VOC rule, EPA must evaluate
the rule for consistency with the requirements of the CAA and EPA
regulations, as found in section 110 and part D of the CAA and 40 CFR
part 51 (Requirements for Preparation, Adoption, and Submittal of
Implementation Plans). The EPA interpretation of these requirements,
which forms the basis for today's action, appears in the various EPA
policy guidance documents listed in footnote 2. Among those provisions
is the requirement that a VOC rule must, at a minimum, provide for the
implementation of RACT for stationary sources of VOC emissions. This
requirement was carried forth from the pre-amended Act.
[[Page 7708]]
For the purpose of assisting state and local agencies in developing
RACT rules, EPA prepared a series of Control Technique Guideline (CTG)
documents. The CTGs are based on the underlying requirements of the Act
and specify the presumptive norms for what is RACT for specific source
categories. Under the CAA, Congress ratified EPA's use of these
documents, as well as other Agency policy, for requiring States to
``fix-up'' their RACT rules. See section 182(a)(2)(A). There is no CTG
applicable to any of the rules being considered in this notice. For
source categories that do not have an applicable CTG (such as asphalt
roofing operations, semiconductor manufacturing, or glycol
dehydrators), state and local agencies may determine what controls are
required by reviewing the operation of facilities subject to the
regulation and evaluating regulations for similar sources in other
areas. Further interpretations of EPA policy are found in the Blue
Book, referred to in footnote 2. In general, these guidance documents
have been set forth to ensure that VOC rules are fully enforceable and
strengthen or maintain the SIP.
MDAQMD's revised Rule 471, Asphalt Roofing Operations, includes the
following significant changes from the current SIP version:
Added definitions for eight (8) rule-specific terms.
Deleted requirement that vapors emitted from roofing
kettles be incinerated, filtered, or processed.
Added requirement that roofing kettles be equipped with
close fitting lids.
Added temperature limits for material in kettles.
Added procedures for roofing kettle draining operations.
Added requirement for kettle vents.
Specified method to determine compliance with the
temperature limits.
VCAPCD Rule 74.28, Asphalt Roofing Operations, is a new rule that
requires the following:
Close fitting lids for roofing kettles.
Temperature limits for material in kettles.
Procedures for roofing kettle draining operations.
VCAPCD Rule 74.21, Semiconductor Manufacturing, is a new rule that
requires the following:
Freeboard ratio for solvent cleaning station reservoirs
and sinks.
The use of low VOC solvents outside solvent cleaning
stations.
Solvent cleaning methods.
Two-year recordkeeping.
VCAPCD Rule 71.5, Glycol Dehydrators, is a new rule that requires
the following:
The use of VOC control system on glycol regenerator vents.
Two-year recordkeeping.
Glycol dehydrator vent and vapor disposal system testing
methods.
VCAPCD Rule 71, Crude Oil and Reactive Organic Compound Liquids,
was revised to include new definitions needed to enforce Rule 71.5.
EPA has evaluated the submitted rules and has determined that they
are consistent with the CAA, EPA regulations, and EPA policy.
Therefore, MDAQMD Rule 471, Asphalt Roofing Operations; VCAPCD Rule
74.28, Asphalt Roofing Operations; VCAPCD Rule 74.21, Semiconductor
Manufacturing; VCAPCD Rule 71.5, Glycol Dehydrators; and VCAPCD Rule
71, Crude Oil and Reactive Organic Compound Liquids, are being approved
under section 110(k)(3) of the CAA as meeting the requirements of
section 110(a) and part D.
Nothing in this action should be construed as permitting or
allowing or establishing a precedent for any future implementation
plan. Each request for revision to the state implementation plan shall
be considered separately in light of specific technical, economic, and
environmental factors and in relation to relevant statutory and
regulatory requirements.
EPA is publishing this document without prior proposal because the
Agency views this as a noncontroversial amendment and anticipates no
adverse comments. However, in a separate document in this Federal
Register publication, the EPA is proposing to approve the SIP revision
should adverse or critical comments be filed. This action will be
effective April 29, 1996, unless, by April 1, 1996, adverse or critical
comments are received.
If the EPA receives such comments, this action will be withdrawn
before the effective date by publishing a subsequent document that will
withdraw the final action. All public comments received will then be
addressed in a subsequent final rule based on this action serving as a
proposed rule. The EPA will not institute a second comment period on
this action. Any parties interested in commenting on this action should
do so at this time. If no such comments are received, the public is
advised that this action will be effective April 29, 1996.
Regulatory Process
Under the Regulatory Flexibility Act, 5 U.S.C. 600 et seq., EPA
must prepare a regulatory flexibility analysis assessing the impact of
any proposed or final rule on small entities. 5 U.S.C. Secs. 603 and
604. Alternatively, EPA may certify that the rule will not have a
significant impact on a substantial number of small entities. Small
entities include small businesses, small not-for-profit enterprises and
government entities with jurisdiction over a population of less than
50,000.
SIP approvals under sections 110 and 301(a) and subchapter I, Part
D of the CAA do not create any new requirements, but simply approve
requirements that the State is already imposing. Therefore, because the
Federal SIP-approval does not impose any new requirements, I certify
that it does not have a significant impact on any small entities
affected. Moreover, due to the nature of the Federal-state relationship
under the CAA, preparation of a regulatory flexibility analysis would
constitute Federal inquiry into the economic reasonableness of state
action. The CAA forbids EPA to base its actions concerning SIPs on such
grounds. Union Electric Co. v. U.S. EPA, 427 U.S. 246, 256-66 (S. Ct.
1976); 42 U.S.C. 7410 (a)(2).
Unfunded Mandates
Under Sections 202, 203, and 205 of the Unfunded Mandates Reform
Act of 1995 (``Unfunded Mandates Act''), signed into law on March 22,
1995, EPA must undertake various actions in association with proposed
or final rules that include a Federal mandate that may result in
estimated costs of $100 million or more to the private sector or to
State, local, or tribal governments in the aggregate.
Through submission of this state implementation plan or plan
revision, the State and any affected local or tribal governments have
elected to adopt the program provided for under Part D of the Clean Air
Act. These rules may bind State, local, and tribal governments to
perform certain actions and also require the private sector to perform
certain duties. The rules being approved by this action will impose no
new requirements because affected sources are already subject to these
regulations under State law. Therefore, no additional costs to State,
local, or tribal governments or to the private sector result from this
action. EPA has also determined that this final action does not include
a mandate that may result in estimated costs of $100 million or more to
State, local, or tribal governments in the aggregate or to the private
sector.
This action has been classified as a Table 3 action for signature
by the Regional Administrator under the procedures published in the
Federal Register on January 19, 1989 (54 FR 2214-2225), as revised by a
July 10, 1995 memorandum from Mary Nichols,
[[Page 7709]]
Assistant Administrator for Air and Radiation. The Office of Management
and Budget (OMB) has exempted this regulatory action from Executive
Order 12866 review.
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Hydrocarbons,
Incorporation by reference, Intergovernmental relations, Ozone,
Reporting and recordkeeping requirements, Volatile organic compounds.
Note: Incorporation by reference of the State Implementation
Plan for the State of California was approved by the Director of the
Federal Register on July 1, 1982.
Dated: January 30, 1996.
Felicia Marcus,
Regional Administrator.
Subpart F of part 52, chapter I, title 40 of the Code of Federal
Regulations is amended as follows:
PART 52--[AMENDED]
1. The authority citation for part 52 continues to read as follows:
Authority: 42 U.S.C. 7401-7671q.
Subpart F--California
2. Section 52.220(c) is amended by adding paragraphs
(194)(i)(A)(4), (198)(i)(J), (210)(i)(C)(2), and (215)(i)(B)(2) to read
as follows:
Sec. 52.220 Identification of plan.
* * * * *
(c) * * *
(194) * * *
(i) * * *
(A) * * *
(4) Rule 74.21, adopted on April 6, 1993.
* * * * *
(198) * * *
(i) * * *
(J) Ventura County Air Pollution Control District.
(1) Rule 74.28, adopted on May 10, 1994.
* * * * *
(210) * * *
(i) * * *
(C) * * *
(2) Rule 471, adopted on December 21, 1994.
* * * * *
(215) * * *
(i) * * *
(B) * * *
(2) Rule 71 and Rule 71.5, adopted on December 13, 1994.
* * * * *
[FR Doc. 96-4570 Filed 2-28-96; 8:45 am]
BILLING CODE 6560-50-W
Complete official Federal Register PDF
FR Doc. 96-4567 Approval of Discontinuation of Tail Pipe Lead and Fuel Inlet Test for Vehicle Antitampering Program for Oklahoma
[Federal Register Volume 61, Number 41 (Thursday, February 29, 1996)]
[Rules and Regulations]
[Pages 7709-7711]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-4567]
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[OK-11-1-6604a; FRL-5430-3]
Approval of Discontinuation of Tail Pipe Lead and Fuel Inlet Test
for Vehicle Antitampering Program for Oklahoma
AGENCY: Environmental Protection Agency (EPA).
ACTION: Direct final rule.
-----------------------------------------------------------------------
SUMMARY: The EPA is approving the State Implementation Plan (SIP)
revision submitted by the State of Oklahoma for the purpose of
discontinuing the State's tail pipe lead and fuel inlet test in its
vehicle antitampering program. The SIP revision also includes minor
administrative changes related to the Oklahoma antitampering program.
The SIP revision was submitted by the State in response to the dramatic
diminished availability of leaded fuel which has resulted in a lack of
a need for these tests, not only in Oklahoma but also nationwide. The
rationale for the approval is set forth in this document; additional
information is available at the address indicated in the ADDRESSES
section.
DATES: This final rule will become effective on April 29, 1996 unless
adverse or critical comments are received by April 1, 1996. If the
effective date is delayed, timely notice will be published in the
Federal Register.
ADDRESSES: Written comments on this action should be addressed to Mr.
Thomas Diggs, Chief (6PD-L), Air Planning Section, at the EPA Regional
Office listed below. Copies of the documents relevant to this action
are available for public inspection during normal business hours at the
following locations. Interested persons wanting to examine these
documents should make an appointment with the appropriate office at
least 24 hours before the visiting day.
U.S. Environmental Protection Agency, Region 6, Multimedia Planning &
Permitting Division (6PD-L), 1445 Ross Avenue, Suite 700, Dallas, Texas
75202-2733.
Air and Radiation Docket and Information Center, U.S. Environmental
Protection Agency, 401 M Street SW., Washington, DC 20460.
Oklahoma Department of Environmental Quality, Air Quality Program, 4545
North Lincoln Blvd., Suite 250, Oklahoma City, Oklahoma 73105-3483.
FOR FURTHER INFORMATION CONTACT: Mr. James F. Davis, Air Planning
Section (6PD-L), Multimedia Planning & Permitting Division, U.S.
Environmental Protection Agency, Region 6, 1445 Ross Avenue, Dallas,
Texas 75202-2733, Telephone (214) 665-7584.
SUPPLEMENTARY INFORMATION:
I. Background
The SIP revision, discussed in more detail in the Technical Support
Document, dated May 24, 1995, is briefly outlined below.
On May 16, 1994, the State of Oklahoma submitted to the U.S.
Environmental Protection Agency (EPA) rules for Oklahoma SIP revisions
allowing for the exclusions of the Plumbtesmo Lead Detection Test (LDT)
and Fuel Inlet Restrictor (FIR) from the State Department of Public
Safety's motor vehicle antitampering inspection procedures for Oklahoma
City and Tulsa. In addition to the State regulations, Oklahoma
submitted a summary and justification documenting the basis for this
SIP revision.
In the mid-1980s, EPA established test procedures and emission
reduction credits for inspecting and requiring replacement of the
catalytic converter when a tailpipe lead test revealed lead deposits in
the tail pipe, or when the fuel inlet restrictor was found to be
widened to permit refueling with a leaded nozzle. Since the mid-1980s,
the availability of leaded fuel and the lead content in the fuel has
diminished dramatically. In addition, leaded gasoline has been banned
by the Clean Air Act Amendments of 1990 as of December 31, 1995,
(Sec. 211(n)).
II. Analysis
A. Procedural Background
The following criteria used to review the submitted SIP revision
confirm that the State has demonstrated that the LDT and FIR check is
no longer needed in Oklahoma: (1) proof that leaded gasoline is no
longer generally available in the Emission Control Areas (ECA) of Tulsa
and Oklahoma City, (2) verification that the local fleet has undergone
more than one full inspection cycle with virtually no failures and, (3)
completion of a State survey coordinated with EPA to determine that the
fleet has failed the lead detection test less than 1 percent of the
time. This Oklahoma SIP revision meets the criteria necessary for EPA
to approve the SIP revision request.
The State's SIP indicates that at the time of the State's Air
Quality Council hearing, leaded fuel comprised less than 5 percent of
the total fuel sales in Oklahoma, and where it was available it
[[Page 7710]]
was more expensive, thus removing an incentive to misfuel. The State
also cited a survey conducted in Tulsa in which only 26 of 269 service
stations sold leaded gasoline. In addition, the SIP cites figures from
the U.S. Department of Energy that show that leaded gasoline comprised
about 1 percent of total sales.
The vehicle antitampering program in Oklahoma City has been in
place since 1978 to help control carbon monoxide and ozone pollution,
and the program in Tulsa has been in place since 1986 to help control
ozone pollution. The data submitted by the State showed that the
numbers of vehicles failing LDT and FIR are below limits that make the
benefit of the tests worthwhile. In 1992, the failure rate for the FIR
was less than .06 percent while the failure rate for the LDT was less
than .02 percent. In addition, to confirm these statistics the State
conducted a survey of over 1,000 vehicles in Tulsa and Oklahoma County
and found that no vehicles subject to the antitampering inspection
failed the Plumbtesmo LDT.
Also, EPA's Office of Mobile Sources recently issued a guidance
memorandum dated September 16, 1994, entitled, ``Discontinuation of
Tail Pipe Lead and Fuel Inlet Tests,'' which essentially allows the
discontinuation of these tests without a State-submitted demonstration
that these tests are no longer necessary. One condition of
discontinuation stated in this policy to retain full credit is that the
State has performed the tests for at least one test cycle and has
required catalyst replacement upon failure. Oklahoma City and Tulsa
meet these criteria as well as those discussed above. The EPA has
reviewed the Oklahoma SIP revision submitted to the EPA, using the
criteria stated above. The Oklahoma regulations represent an acceptable
approach to the State's vehicle antitampering program.
III. Final Action
In this action, the EPA is approving the SIP revision submitted by
the State of Oklahoma for removing the Plumbtesmo LDT and FIR test from
its vehicle antitampering program.
Copies of the State's SIP revision and the Technical Support
Document (TSD), detailing EPA's review of the SIP revision, are
available at the address listed in the ADDRESSES section above. For a
more detailed analysis of the SIP revision, the reader is referred to
the TSD.
The EPA is publishing this action without prior proposal because
the Agency views this as a noncontroversial revision and anticipates no
adverse comments. However, in a separate document in this Federal
Register publication, the EPA is proposing to approve the SIP revision
should adverse or critical comments be filed. Thus, today's direct
final action will be effective April 29, 1996 unless, by April 1, 1996,
adverse or critical comments are received.
If the EPA receives such comments, this action will be withdrawn
before the effective date by publishing a subsequent document that will
withdraw the final action. All public comments received will then be
addressed in a subsequent final rule based on this action serving as a
proposed rule. The EPA will not institute a second comment period on
this action. Any parties interested in commenting on this action should
do so at this time. If no such comments are received, the public is
advised that this action will be effective April 29, 1996.
Nothing in this action should be construed as permitting, allowing
or establishing a precedent for any future request for revision to any
SIP. Each request for revision to a SIP shall be considered separately
in light of specific technical, economic, and environmental factors and
in relation to relevant statutory and regulatory requirements.
Under the Regulatory Flexibility Act, 5 U.S.C. 600 et seq, the EPA
must prepare a regulatory flexibility analysis assessing the impact of
any proposed or final rule on small entities (5 U.S.C. 603 and 604).
Alternatively, the EPA may certify that the rule will not have a
significant impact on a substantial number of small entities. Small
entities include small businesses, small not-for-profit enterprises,
and government entities with jurisdiction over populations that are
less than 50,000.
The SIP revision approvals under section 110 and subchapter I, part
D, of the Act do not create any new requirements, but simply approve
requirements that the State is already imposing. Therefore, because the
Federal SIP approval does not impose any new requirements, the EPA
certifies that this proposed rule would not have a significant impact
on any small entities affected. Moreover, due to the nature of the
Federal-State relationship under the Act, preparation of a regulatory
flexibility analysis would constitute Federal inquiry into the economic
reasonableness of State actions. The Act forbids the EPA to base its
actions concerning SIP's on such grounds. Union Electric Co. v.
U.S.E.P.A., 427 U.S. 246, 256-266 (S. Ct. 1976); 42 U.S.C. section
7410(a)(2).
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 preexisting requirements under State or local law, and imposes
no new Federal requirements. Accordingly, no additional costs to State,
local, or tribal governments, or to the private sector, result from
this action.
This action has been classified as a Table 3 action for signature
by the Regional Administrator under the procedures published in the
Federal Register on January 19, 1989 (54 FR 2214-2225), as revised by a
July 10, 1995, memorandum from Mary Nichols, Assistant Administrator
for Air and Radiation. The Office of Management and Budget has exempted
this regulatory action from Executive Order 12866 review.
Under section 307(b)(1) of the Act, 42 U.S.C. 7607(b), petitions
for judicial review of this action must be filed in the United States
Court of Appeals for the appropriate circuit by April 29, 1996. Filing
a petition for reconsideration by the Administrator of this final rule
does not affect the finality of this rule for the purposes of judicial
review nor does it extend the time within which a petition for judicial
review may be filed, and shall not postpone the effectiveness of such
rule or action. This action may not be challenged later in proceedings
to enforce its requirements (See section 307(b)(2)).
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Carbon monoxide,
Hydrocarbons, Incorporation by reference, Nitrogen dioxide, Reporting
and recordkeeping requirements, Volatile organic compounds.
[[Page 7711]]
Note: Incorporation by reference of the SIP for the State of
Oklahoma was approved by the Director of the Federal Register on
July 1, 1982.
Dated: January 12, 1996.
A. Stanley Meiburg,
Acting Regional Administrator (6A).
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 LL--Oklahoma
2. Section 52.1920 is amended by adding paragraph (c)(46) to read
as follows:
Sec. 52.1920 Identification of plan.
* * * * *
(c) * * *
(46) A revision to the Oklahoma SIP to include revisions to
Oklahoma Department of Public Safety regulation Title 595, Chapter 20,
Subchapter 3--Emission and Mechanical Inspection of Vehicles,
Subchapter 7--Inspection Stickers and Monthly Tab Inserts for
Windshield and Trailer/Motorcycle, Subchapter 9--Class AE Inspection
Station, Vehicle Emission Anti-tampering Inspection and Subchapter 11--
Annual Motor Vehicle Inspection and Emission Anti-Tampering Inspection
Records and Reports, adopted by the State on April 6, 1994, effective
May 26, 1994 and submitted by the Governor on May 16, 1994.
(i) Incorporation by reference.
(A) Revisions to Oklahoma Department of Public Safety regulation
Title 595, Chapter 20: 3-1(2); 3-3; 3-5; 3-6; 3-12; 3-25; 3-26; 3-27;
3-41(o); 3-42; 3-46(a) and (b); 3-61(a),(b),(e) and (f); 3-63(b) and
(g); 7-1(c) and (f); 7-2(a); 7-3; 7-4(a); 7-5(a); 7-6(a); 7-7(a); 9-
1(a); 9-3(l) and (m); 9-7; 9-10(a),(b) and (c); 9-11(a); 9-12(a); 9-
13(a); 9-14(a) and (b); 9-15(a); 11-1; 11-2(a); 11-3(a); 11-4 effective
May 26, 1994.
(ii) Additional material.
(A) State SIP revision entitled, ``Oklahoma Vehicle Anti-Tampering
Program SIP Revision,'' which includes a completeness determination,
SIP narrative, hearing records and other documentation relevant to the
development of this SIP.
[FR Doc. 96-4567 Filed 2-28-96; 8:45 am]
BILLING CODE 6560-50-P
Complete official Federal Register PDF
FR Doc. 96-4566 Approval and Promulgation of Implementation Plans; State of Missouri
[Federal Register Volume 61, Number 41 (Thursday, February 29, 1996)]
[Rules and Regulations]
[Pages 7714-7716]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-4566]
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[OAQPS 6542; FRL-5426-8]
Approval and Promulgation of Implementation Plans; State of
Missouri
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The purpose of this revision to the Missouri State
Implementation Plan (SIP) is to revise the Missouri Part D new source
review (NSR) rules, update and add numerous definitions, revise the
maximum allowable increase for particulate matter under the
requirements for prevention of significant deterioration (PSD) of air
quality, address emission statements under Title I of the Clean Air Act
Amendments (CAAA), and generally enhance the SIP.
The objective of this final rule is to approve into the Missouri
SIP rules adopted by the state which meet the requirements of the Clean
Air Act (CAA) as amended in 1990 with regard to NSR in areas that have
not attained the national ambient air quality standard. This
implementation plan revision was submitted by the state pursuant to
Federal requirements for an approvable NSR SIP for Missouri.
EFFECTIVE DATE: This rule will be effective on April 1, 1996.
ADDRESSES: Copies of the documents relevant to this action are
available for public inspection during normal business hours at the EPA
Air, RCRA, and Toxics Division, 726 Minnesota Avenue, Kansas City,
Kansas 66101; and at the EPA Air and Radiation docket and Information
Center, 401 M Street, S.W., Washington, DC 20460.
FOR FURTHER INFORMATION CONTACT: Josh Tapp at (913) 551-7606.
SUPPLEMENTARY INFORMATION:
I. Background
On April 3, 1995, at 60 FR 16824 the EPA proposed to approve the
SIP revision by the state of Missouri that revises the Missouri Part D
NSR rules, updates and adds numerous definitions, revises the maximum
allowable increase for particulate matter under the requirements for
PSD of air quality, addresses emission statements under Title I of the
CAAA, and generally enhances the SIP.
The Federal Register proposal provided that the final rule was
contingent upon Missouri modifying the language in its definition of
the term ``construction'' to prohibit major sources from commencing
construction before a permit had been issued. The proposal also
required the construction permit rule be modified to prohibit the
taking of offset credits for emission reductions required under either
Federal law or a Federally enforceable permit.
The EPA is currently developing a proposed rule to assist the
implementation of the changes under the amended Act in the NSR
provisions in Parts C and D of Title I of the Act. EPA will refer to
the proposed rule as the most authoritative guidance available
regarding the approvability of submittals. Upon promulgation of the
final regulations, EPA will review the NSR SIPs of all states to
determine whether additional SIP revisions are necessary.
II. Construction Permits Required--10 CSR 10-6.060
A. General Nonattainment NSR Nonattainment Permit Requirements
In the April 3, 1995, proposal to approve the SIP revision by the
state of Missouri that revises the Missouri Part D NSR rules, 11 CAA
requirements were addressed in detail. These requirements consist of
the following and are discussed at 60 FR 16825-6: (1) Offset ratios,
(2) geographical location of offsets, (3) timing of offsets, (4) actual
emissions reductions, (5) NOX requirements, (6) creditable
reductions, (7) prohibition on old growth allowances, (8) analysis of
alternatives, (9) reasonable further progress, (10) reasonably
available control technology/best available control technology/lowest
achievable emission rate clearinghouse information, and (11) stationary
source definition. Each of these requirements has been thoroughly
addressed in the proposal and the reader is referred to that document
for further discussion. Missouri has satisfied each of these Federal
requirements.
[[Page 7715]]
B. Missouri Construction Permit Program Corrections
1. Particulate Matter
After the December 1993 rule adoption by the Missouri Air
Conservation Commission (MACC), the Class I variance table found at 10
CSR 10-6.060(12)(H)2 did not reflect the revised PM10 numerical
maximum allowable increases as set forth at 40 FR Sec. 51.166(p)(4). In
the April 3, 1995, proposal, EPA identified this omission as a
correction to be made prior to EPA's final action to approve the rule.
With the March 30, 1995, MACC rule adoption, the table at 10 CSR 10-
6.060(12)(H)2 now includes PM10 as a pollutant with numerical
values at least as stringent as those found at 40 CFR
Sec. 51.166(p)(4). Missouri's rule now satisfies the PM10
requirement.
2. Waiver Policy
Before the March 30, 1995, MACC rule adoption, the Missouri
Construction Permits Required rule, 10 CSR 10-6.060, in conjunction
with the definition of ``construction'' at 10 CSR 10-6.020(2)(C)22,
could be interpreted as allowing major sources to commence construction
without a permit in contravention of CAA and EPA regulations. That
definition of ``construction'' allowed for synthetic minor sources,
those that are major in reality but which seek Federally enforceable
limitations to limit their potential to emit, to submit a waiver
request to the Missouri Department of Natural Resources (MDNR) allowing
the source to commence limited and specified construction activities.
In the April 3, 1995, proposal, EPA stated that the waiver provision
must be omitted before the rule could be approved. The recently adopted
definition of ``construction'' at 10 CSR 10-6.020(2)(C)22 deletes the
reference to authorization to construct if the applicant submits a
signed waiver. This current definition of ``construction'' is
approvable into the SIP.
3. Offset Credits
At the time the proposed rulemaking (60 FR 16824, April 3, 1995)
was published in the Federal Register, the Missouri construction rule,
10 CSR 10-6.060, lacked a prohibition on taking offset credits for
emission reductions which are required by Federal law or a Federally
enforceable permit. The proposal identified this omission as a change
to be made before EPA could approve the rule. The language at 10 CSR
10-6.060(12)(C)4 has been modified by Missouri to include that
prohibition. As regards offset credits, the Missouri rule now satisfies
this requirement and is approvable into the SIP.
C. Commenced Construction
Under the applicablity provisions of 10 CSR 10-6.060(1)(C), no
owner or operator shall commence construction or modification of any
installation subject to the construction permits rule, unless it meets
certain threshold requirements set forth in the rule and it first
obtains a permit. The Missouri rules define ``commenced'' at 10 CSR 10-
6.020(C)15 as ``an owner or operator has undertaken a continuous
program of construction or modification or that an owner or operator
has entered into a binding agreement or contractual obligation to
undertake and complete within a reasonable time, a continuous program
of construction or modification.'' When these two provisions are read
together, the rules appear to prohibit a source from entering into a
contractual relationship pertaining to construction before obtaining a
permit. Since the Missouri provisions are at least as stringent as
Federal law at 40 CFR Sec. 51.166(i)(1), they are approvable into the
SIP.
III. Update to Definitions Found in 10 CSR 10-6.020
There are many definitions which are being revised within or added
to the SIP. Many of these definitions pertain to the Title V and
asbestos programs. These definitions are being approved into the SIP
because they provide overall consistency in the use of terms in the air
program. Because many of these terms do pertain to Title V, it is
important to recognize that EPA approval into the SIP of these
definitions does not constitute approval with respect to the Title V
submission. This approval of the definitions is only for purposes of
the SIP in the context of the requirements of section 110 of the Act,
and other provisions of the Act referenced in section 110. The reader
is referred to the technical support document for clarification on
changes to definitions and additions to the list of definitions.
IV. Confidential Information--10 CSR 10-6.210
The information set forth in the April 3, 1995, proposed rule (60
FR 16827) describes this rule and explains EPA's rationale for approval
of the rule.
V. Emission Statement Rule--10 CSR 10-6.110
The information set forth in the April 3, 1995, proposed rule (60
FR 16827) describes this rule and explains EPA's rationale for approval
of the rule.
EPA Action
In this document, EPA takes final action on the rulemaking to
provide clarification on offset requirements; provide for the treatment
of economic development zones; and require that the relative benefits
of alternative sites, production processes, and control steps must be
considered prior to approval of a new source permit. In addition, the
rulemaking addresses corrections to Missouri's definition rule;
confidential information rule; and the rule pertaining to the
submission of emission data, fees, and process information.
Nothing in this action should be construed as permitting or
allowing or establishing a precedent for any future request for
revision to any SIP. Each request for revision to the SIP shall be
considered separately in light of specific technical, economic, and
environmental factors, and in relation to relevant statutory and
regulatory requirements.
SIP approvals under section 110 and subchapter I, Part D of the CAA
do not create any new requirements, but simply approve requirements
that the state is already imposing. Therefore, because the Federal SIP
approval does not impose any new requirements, EPA certifies that it
does not have a significant impact on any small entities affected.
Moreover, due to the nature of the Federal-state relationship under the
CAA, preparation of a regulatory flexibility analysis would constitute
Federal inquiry into the economic reasonableness of state action. The
CAA forbids EPA to base its actions concerning SIPs on such grounds
(Union Electric Co. v. U.S. E.P.A., 427 U.S. 246, 256-66 (S.Ct. 1976);
42 U.S.C. 7410(a)(2)).
This action has been classified as a Table 3 action for signature
by the Regional Administrator under the procedures published in the
Federal Register on January 19, 1989 (54 FR 2214-2225), as revised by a
July 10, 1995, memorandum from Mary Nichols, Assistant Administrator
for Air and Radiation. The Office of Management and Budget (OMB) has
exempted this regulatory action from E.O. 12866 review.
Under sections 202, 203, and 205 of the Unfunded Mandates Reform
Act of 1995 (``Unfunded Mandates Act''), signed into law on March 22,
1995, EPA must undertake various actions in association with proposed
or final rules that include a Federal mandate that may result in
estimated costs of $100 million or more to the private sector, or to
state, local, or tribal governments in the
[[Page 7716]]
aggregate. The Missouri revisions have no impact on tribal governments.
Through submission of this plan revision, the state has elected to
adopt the program provided for under section 110 of the CAA. These
rules may bind state and local governments to perform certain actions
and also require the private sector to perform certain duties. To the
extent that the rules being finalized for approval by this action will
impose new requirements, sources are already subject to these
regulations under state law. Accordingly, no additional costs to state
or local governments, or to the private sector, result from this final
action. EPA has also determined that this final action does not include
a mandate that may result in estimated costs of $100 million or more to
state or local governments in the aggregate or to the private sector.
Under section 307(b)(1) of the CAA, petitions for judicial review
of this action must be filed in the United States Court of Appeals for
the appropriate circuit by April 29, 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).)
The OMB has exempted these actions from review under Executive
Order 12866.
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Carbon monoxide,
Hydrocarbons, Incorporation by reference, Intergovernmental relations,
Lead, Nitrogen dioxide, Ozone, Particulate matter, Reporting and
recordkeeping requirements, Sulfur oxides, Volatile organic compounds.
Dated: December 6, 1995.
Dennis Grams,
Regional Administrator.
Part 52, chapter I, title 40 of the Code of Federal Regulations is
amended as follows:
PART 52--[AMENDED]
1. The authority citation for part 52 continues to read as follows:
Authority: 42 U.S.C. 7401-7671q.
Subpart AA--[Missouri]
2. Section 52.1320 is amended by adding paragraph (c)(86) to read
as follows:
Sec. 52.1320 Identification of plan.
* * * * *
(c) * * *
(86) A revision to the Missouri SIP to revise the Missouri part D
NSR rules, update and add numerous definitions, revise the maximum
allowable increase for particulate matter under the requirements for
PSD of air quality, address emission statements under Title I of the
CAA, and generally enhance the SIP.
(i) Incorporation by reference.
(A) Revision to rules 10 CSR 10-6.020, Definitions and Common
Reference Tables, effective August 30, 1995; 10 CSR 10-6.060,
Construction Permits Required, effective August 30, 1995; 10 CSR 10-
6.110, Submission of Emission Data, Emission Fees, and Process
Information, effective May 9, 1994; and 10 CSR 10-6.210, Confidential
Information, effective May 9, 1994.
(ii) Additional material. None.
* * * * *
[FR Doc. 96-4566 Filed 2-28-96; 8:45 am]
BILLING CODE 6560-50-P
Complete official Federal Register PDF
FR Doc. 96-4565 Approval and Promulgation of Implementation Plans; State of Missouri
[Federal Register Volume 61, Number 41 (Thursday, February 29, 1996)]
[Rules and Regulations]
[Pages 7711-7714]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-4565]
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[MO-29-1-7151a; FRL-5425-2]
Approval and Promulgation of Implementation Plans; State of
Missouri
AGENCY: Environmental Protection Agency (EPA).
ACTION: Direct final rule.
-----------------------------------------------------------------------
SUMMARY: This document takes final action to approve the State
Implementation Plans (SIP) submitted by the state of Missouri for the
purpose of fulfilling the requirements set forth in EPA's
Transportation Conformity rule. The SIPs were submitted by the state to
satisfy the Federal requirements in 40 CFR 51.396.
DATES: This action is effective April 29, 1996 unless by April 1, 1996
adverse or critical comments are received.
ADDRESSES: Copies of the documents relevant to this action are
available for public inspection during normal business hours at the:
Environmental Protection Agency, Air Branch, 726 Minnesota Avenue,
Kansas City, Kansas 66101; and EPA Air & Radiation Docket and
Information Center, 401 M Street, SW., Washington, DC 20460.
FOR FURTHER INFORMATION CONTACT: Lisa V. Haugen at (913) 551-7877.
SUPPLEMENTARY INFORMATION:
I. Background
Section 176(c)(4) of the Clean Air Act, as amended (CAA), requires
the EPA to promulgate criteria and procedures for demonstrating and
ensuring conformity of Federal actions to an applicable implementation
plan developed pursuant to section 110 and part D of the CAA.
Conformity to an implementation plan is defined by the CAA as
conformity to an implementation plan's purpose of eliminating or
reducing the severity and number of violations of the National Ambient
Air Quality Standards, and achieving expeditious attainment of such
standards. On November 23, 1993, the EPA promulgated the final rule
(hereafter referred to as the Transportation Conformity rule), which
established the process by which the Federal Highway Administration
(FHWA), the Federal Transit Administration (FTA), and metropolitan
planning organizations (MPO) determine conformity of highway and
transit projects.
The Transportation Conformity rule also establishes the criteria
for EPA approval of SIPs. See 40 CFR Sec. 51.396. These criteria
provide that the state provisions must be at least as stringent as the
requirements specified in EPA's Transportation Conformity rule, and
that they can be more stringent only if they apply equally to
nonfederally funded transportation projects as well as those using
Federal funds (section 51.396(a)).
The St. Louis area was designated nonattainment for ozone and
carbon monoxide (CO) in 1978. On November 6, 1991, EPA promulgated a
rule which classified the St. Louis area as a moderate ozone
nonattainment area, and as an unclassified nonattainment area for CO.
Kansas City was redesignated to attainment for ozone, and a maintenance
plan was approved, in a June 23, 1992, Federal Register notice. Section
51.396 of the Transportation Conformity rule requires that states with
areas subject to the rule submit an SIP revision containing the
criteria and procedures for FHWA, FTA, MPOs, and other state or local
agencies to assess the conformity of transportation plans,
Transportation Improvement Programs (TIP), and projects to the
applicable SIP, within 12 months after November 23, 1993. As the rule
applies to all ozone and CO nonattainment and maintenance areas, SIP
revisions for the St. Louis and Kansas City areas, addressing the
requirements of the Transportation Conformity rule, became due on
November 24, 1994.
II. Review of State Submittal
On February 14, 1995, the state of Missouri submitted
Transportation Conformity SIP revisions for Kansas City and St. Louis.
The submission included an SIP revision for Kansas City along with
Missouri rule 10 CSR 10-2.390 (10-2.390), and an SIP revision,
including Missouri rule 10 CSR 10-5.480 (10-5.480), which applies to
St. Louis. Section 51.396 requires that, for the SIP revision to be
approvable by EPA, certain sections of the Transportation Conformity
rule be incorporated verbatim.
The state of Missouri chose to use the model Transportation
Conformity rule developed by the State and Territorial Air Pollution
Program Administrators (STAPPA)/Association of Local Air Pollution
Control Officials (ALAPCO). The STAPPA/ALAPCO model rule added
clarifying changes consistent with the intent of the Federal rule. For
instance, 10-5.480(10)(B) and 10-2.390(10)(B) include examples of the
types of planning assumptions which must be considered in making
conformity determinations. The examples are added to the language in
section 51.412 of the Federal rule, but do not change the section's
intent. The
[[Page 7712]]
STAPPA/ALAPCO rule also contains ``more stringent'' and ``lateral''
options which change the substance of the Federal rule. Provisions in
the STAPPA/ALAPCO rule which are more stringent than the Federal rule
are identified as ``Optional More Stringent Version,'' ``Optional More
Stringent Additional Provision,'' or ``Optional More Stringent and
Potentially Discriminatory Versions.'' Options which address subjects
not covered by the Federal Conformity rule, or which expand the
coverage of the Federal rule's requirements, are identified as
``Lateral Expansion Option'' in the STAPPA/ALAPCO rule. Missouri did
not adopt any of these options from the model rule. Therefore, except
as noted below, EPA finds that the Missouri submissions meet the
criteria set forth in section 51.396 of the Transportation Conformity
rule.
On February 8, 1995, EPA published an interim final rule entitled,
``Transportation Conformity Rule Amendments: Transition to the Control
Strategy Period.'' This interim final rule, which modified the language
in sections 51.448 and 93.128 of the Federal rule, was effective
immediately and applied until August 8, 1995. A proposed rule for these
language modifications was also published February 8, 1995, and a final
rule was published on August 7, 1995. Missouri rules 10 CSR 10-
5.480(22) and 10-2.390(20) reflect the Federal rule requirements before
the publication of the interim final rule. Specifically, the Missouri
rule provides that conformity will lapse 12 months from the date of an
EPA finding of specific SIP deficiencies. Therefore, EPA is approving
the state's Transportation Conformity SIP revisions with the exception
of the aforementioned portions of the Missouri rules. Section 93.128 of
the Federal Transportation Conformity rule, as amended on August 7,
1995, will remain in effect until the state of Missouri submits an SIP
revision which incorporates the changes in the Federal rule. Section
93.128, as amended, states that a conformity lapse resulting from a
finding of certain SIP deficiencies is delayed until CAA section 179(b)
highway sanctions for these deficiencies are applied.
On August 29, 1995, EPA published an interim final rulemaking
amending the November 24, 1993, final Transportation Conformity rule to
remove the statutory reference relating to exempting certain areas from
certain NOX provisions of the Transportation Conformity rule.
Specifically, the interim final rule removed the reference to NOX
waivers under Sec. 182(f) to ensure that the waivers had to be approved
as part of the implementation plan revision process discussed in
Sec. 182(b) of the CAA, in order to exempt areas from the requirement
to make conformity determinations for NOX. Missouri rules 10 CSR
10-2.390 and 10 CSR 10-5.480 specifically reference waivers approved
under Sec. 182(f) as the statutory authority which would relieve areas
from the NOX conformity requirements. In a letter dated December
7, 1995, from David Shorr, Director, Missouri Department of Natural
Resources to Dennis Grams, Regional Administrator, EPA, the state of
Missouri confirms its understanding that, should EPA approve an
NOX waiver under Sec. 182(f), this waiver does not relieve the
state from the NOX conformity requirements in the Transportation
Conformity rule. The letter further states that Missouri intends to
implement its rule in a manner consistent with EPA's interim final
rule, so that the conformity requirements will continue to apply until
any NOX waiver request has undergone a public hearing, has been
submitted to EPA, and has been subsequently approved as an SIP
revision.
On November 14, 1995, the EPA promulgated a final rule which
amended certain provisions of the Federal Transportation Conformity
rule. These changes include allowing any transportation control measure
from an approved SIP to proceed during a conformity lapse; aligning the
date of conformity lapses with the date of application of the CAA
highway sanctions for any failure to submit or submission of an
incomplete control strategy SIP; extension of the grace period before
which areas must determine conformity to a submitted control strategy
SIP; establishment of a grace period before which transportation plan
and program conformity must be determined in newly designated
nonattainment areas; and a correction of the nitrogen oxides provisions
of the Transportation Conformity rule so they are consistent with the
CAA and previous commitments made by EPA. As the state adopted and
submitted its Transportation Conformity rules prior to the publication
of the November 14, 1995, rule amendments, and a Transportation
Conformity SIP revision consistent with these amendments must be
submitted to EPA by 12 months from November 14, 1995, EPA believes it
is reasonable to approve the state's submittal. EPA expects Missouri to
amend its conformity rules consistent with the November 1995 rule
amendments and submit the amendments to EPA for approval by November
1996.
The Missouri SIP revisions, including 10-2.390 and 10-5.480, were
adopted by the Missouri Air Conservation Commission, after proper
notice and public hearing, on January 12, 1995, and became effective on
May 28, 1995. These rules apply in all nonattainment and maintenance
areas for transportation-related criteria pollutants for which the area
is designated nonattainment, or has a maintenance plan as required by
sections 51.394 and 93.102 of the Transportation Conformity rule.
Because the Missouri rules meet the substantive requirements of
EPA's Transportation Conformity rule, EPA has determined that these
submissions meet the requirements for an approvable Transportation
Conformity SIP.
III. Specific Language Changes
The Missouri Transportation Conformity rules include changes which
clarify the text of the Federal rule, as explained below. Other changes
reflect guidance issued by EPA in the Preamble of the final
Transportation Conformity rule.
A. The preamble to the November 1993 Transportation Conformity rule
states that there must be consistency between the SIP and the
conformity analysis regarding modeling parameters such as temperature,
season, etc. This regulatory requirement is incorrectly stated only in
sections 51.452(b)(5) and 93.130(b)(5), which apply to serious, severe,
and extreme ozone nonattainment areas and serious carbon monoxide areas
after January 1, 1995. In an October 14, 1994, EPA memorandum, it is
indicated that it was EPA's intent for this requirement to apply to all
areas. This memorandum also cited an incorrect reference in sections
51.452(c)(1) and 93.130(c)(1) to paragraph (a) of the same section. The
reference should have been to paragraph (b). The corrections are made
in 10-2.390(24)(A)6., 10-2.390(24)(C)1., 10-5.480(26)(A)6., and 10-
5.480(26)(C)1. of the Missouri rules.
B. Sections 51.458 and 93.133 require the Transportation Conformity
SIP revisions to provide that written commitments to mitigation
measures must be obtained prior to a positive conformity determination,
and that project sponsors must comply with such commitments. The
Missouri rules modify this language to make it appropriate for the
state rules in 10-2.390(26)(C) and 10-5.480(29)(C).
C. In part IV(L)(1) of the Preamble to the final Transportation
Conformity
[[Page 7713]]
rule, EPA stated that Transportation Conformity SIPs should specify
what action by an affected recipient of funds designated under Title 23
U.S.C. or the Federal Transit Act, constitutes adoption or approval of
a nonfederal transportation project for inclusion in a regional
emissions analysis. ``Adoption and approval'' are defined in 10-
2.390(5)(C)4.C. and 10-5.480(5)(C)3.D.
D. Part IV(F)(1) of the Preamble to the final Transportation
Conformity rule discusses the ``timely implementation'' of
transportation control measures as being a criteria for a conformity
determination. Specifically, EPA uses the term ``maximum priority.''
10-2.390(13)(C) and 10-5.480(13)(C) add language which clarifies the
term ``maximum priority.''
IV. Consultation
Section 51.402 (93.105) requires the state to include procedures
for interagency consultation and resolution of conflicts in the
Transportation Conformity SIPs. The SIPs are to provide ``well-defined
consultation procedures whereby representatives of the MPOs, state and
local air quality planning agencies, state and local transportation
agencies * * * must consult with each other and with local or regional
offices of EPA, FHWA, and FTA on the development of the implementation
plan, the TIP, and associated conformity determinations.'' Both 10-
2.390(5) and 10-5.480(5) establish consultation procedures which meet
EPA's consultation criteria.
Both St. Louis and Kansas City are bistate areas. 10-2.390(5) and
10-5.480(5) establish the consultation, conflict resolution and public
participation procedures for conformity determinations, SIPs,
transportation plans, and TIPs, and clearly state the agencies that
will be involved in the consultation process in Kansas and Missouri for
the Kansas City area, and in Illinois and Missouri for the St. Louis
area. The roles and responsibilities of each agency are outlined in
detail.
The consultation process established in 10-2.390(5) and 10-5.480(5)
incorporate the basic principle behind sections 51.402 and 93.105 in
the Federal Transportation Conformity rule. Missouri has established a
mechanism by which every agency with any responsibility for any key
transportation or air quality decision must consult with every other
agency with an interest in that decision. Each interested party is
provided with all the necessary information needed for meaningful input
and, prior to taking any action, the views of the party are considered
and responded to in a substantive manner. The reader is referred to the
Technical Support Document for information on specific processes within
the interagency consultation procedures, including conflict resolution
procedures and the public participation process. EPA has determined
that sections 10-2.390(5) and 10-5.480(5) meet the requirements of
52.402 and 93.105 of the Federal Transportation Conformity rule.
EPA Action: The effect of this action is that EPA grants full
approval of Missouri's February 14, 1995, submittals. These SIP
revisions meet the requirements set forth in 40 CFR Sec. 51.396. As
explained above, Missouri will be required to revise its rules
consistent with revisions promulgated by EPA subsequent to Missouri's
adoption of its rules.
The EPA is publishing this action without prior proposal because
the Agency views this as a noncontroversial amendment and anticipates
no adverse comments. However, in a separate document in the Federal
Register publication, the EPA is proposing to approve the SIP revision
should adverse or critical comments be filed.
If the EPA receives such comments, this action will be withdrawn
before the effective date by publishing a subsequent notice that will
withdraw the final action. All public comments received will then be
addressed in a subsequent final rule based on this action serving as a
proposed rule. The EPA will not institute a second comment period on
this action. Any parties interested in commenting on this action should
do so at this time.
Nothing in this action should be construed as permitting or
allowing or establishing a precedent for any future request for
revision to any SIP. Each request for revision to the SIP shall be
considered separately in light of specific technical, economic, and
environmental factors, and in relation to relevant statutory and
regulatory requirements.
Under the Regulatory Flexibility Act, 5 U.S.C. Sec. 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. Secs. 603 and
604). Alternatively, EPA may certify that the rule will not have a
significant impact on a substantial number of small entities. Small
entities include small businesses, small not-for-profit enterprises,
and government entities with jurisdiction over populations of less than
50,000.
SIP approvals under section 110 and subchapter I, part D of the CAA
do not create any new requirements, but simply approve requirements
that the state is already imposing. Therefore, because the Federal SIP
approval does not impose any new requirements, EPA certifies that it
does not have a significant impact on any small entities affected.
Moreover, due to the nature of the Federal-state relationship under the
CAA, preparation of a regulatory flexibility analysis would constitute
Federal inquiry into the economic reasonableness of state action. The
CAA forbids EPA to base its actions concerning SIPs on such grounds
(Union Electric Co. v. U.S. E.P.A., 427 U.S. 246, 256-66 (S.Ct. 1976);
42 U.S.C. 7410(a)(2)).
This action has been classified as a Table 3 action for signature
by the Regional Administrator under the procedures published in the
Federal Register on January 19, 1989 (54 FR 2214-2225), as revised by a
July 10, 1995, memorandum from Mary Nichols, Assistant Administrator
for Air and Radiation. The Office of Management and Budget (OMB) has
exempted this regulatory action from E.O. 12866 review.
Unfunded Mandates
Under sections 202, 203, and 205 of the Unfunded Mandates Reform
Act of 1995 (``Unfunded Mandates Act''), signed into law on March 22,
1995, EPA must undertake various actions in association with proposed
or final rules that include a Federal mandate that may result in
estimated costs of $100 million or more to the private sector, or to
state, local, or tribal governments in the aggregate.
Through submission of this state implementation plan, the state has
elected to adopt the program provided for under section 110 of the CAA.
These rules may bind state and local governments to perform certain
actions and also require the private sector to perform certain duties.
To the extent that the rules being finalized for approval by this
action will impose new requirements, sources are already subject to
these regulations under state law. Accordingly, no additional costs to
state or local governments, or to the private sector, result from this
final action. EPA has also determined that this final action does not
include a mandate that may result in estimated costs of $100 million or
more to state or local governments in the aggregate or to the private
sector. EPA has determined that these rules result in no additional
costs to tribal government.
Under section 307(b)(1) of the CAA, petitions for judicial review
of this action must be filed in the United States Court of Appeals for
the appropriate circuit by April 29, 1996. Filing a petition for
reconsideration by the
[[Page 7714]]
Administrator of this final rule does not affect the finality of this
rule for the purposes of judicial review, nor does it extend the time
within which a petition for judicial review may be filed, and shall not
postpone the effectiveness of such rule or action. This action may not
be challenged later in proceedings to enforce its requirements. (See
section 307(b)(2).)
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Carbon monoxide,
Incorporation by reference, Intergovernmental relations, Ozone,
Reporting and record keeping requirements, Volatile organic compounds.
Dated: February 6, 1996.
Dennis Grams,
Regional Administrator.
Part 52, chapter I, title 40 of the Code of Federal Regulations is
amended as follows:
PART 52--[AMENDED]
1. The authority citation for part 52 continues to read as follows:
Authority: 42 U.S.C. 7401-7671q.
Subpart AA--Missouri
2. Section 52.1320 is amended by adding paragraph (c)(92) to read
as follows:
Sec. 52.1320 Identification of plan.
* * * * *
(c) * * *
(92) On February 14, 1995, the Missouri Department of Natural
Resources submitted two new rules which pertain to transportation
conformity in Kansas City and St. Louis.
(i) Incorporation by reference.
(A) New rule 10 CSR 10-2.390 (except section (20) Criteria and
Procedures: Interim Period Reductions in Ozone Areas (TIP)) and 10 CSR
10-5.480 (except section (22) Criteria and Procedures: Interim Period
Reductions in Ozone Areas (TIP)), both entitled Conformity to State
Implementation Plans of Transportation Plans, Programs, and Projects
Developed, Funded, or Approved Under Title 23 U.S.C. or the Federal
Transit Act, effective May 28, 1995.
(ii) Additional material.
(A) Missouri's Air Pollution Control Plan, St. Louis Metropolitan
Area Ozone and Carbon Monoxide Transportation Conformity, January 12,
1995.
(B) Missouri's Air Pollution Control Plan, Kansas City Metropolitan
Area Ozone Transportation Conformity, January 12, 1995.
(C) Policy agreement, entered into between the Missouri Department
of Natural Resources, the Mid-America Regional Council, and the Highway
and Transportation Commission of the state of Missouri, dated August
31, 1993.
(D) Letter from the state of Missouri to EPA, dated December 7,
1995, in which the state commits to implementing its state rule
consistent with the Federal Transportation Conformity rule, as amended
on August 29, 1995, with regards to the granting of an NOx waiver
and the NOx conformity requirements.
[FR Doc. 96-4565 Filed 2-28-96; 8:45 am]
BILLING CODE 6560-50-P
Complete official Federal Register PDF
FR Doc. 96-4560 Amendment of Class E Airspace; Winnemucca, NV; Correction
[Federal Register Volume 61, Number 41 (Thursday, February 29, 1996)]
[Rules and Regulations]
[Pages 7697-7698]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-4560]
-----------------------------------------------------------------------
DEPARTMENT OF TRANSPORTATION
14 CFR Part 71
[Airspace Docket No. 95-AWP-34]
Amendment of Class E Airspace; Winnemucca, NV; Correction
AGENCY: Federal Aviation Administration (FAA), DOT.
ACTION: Final rule; correction.
-----------------------------------------------------------------------
SUMMARY: This action corrects errors in the geographic coordinates of a
final rule that was published in the Federal Register on January 10,
1996, Airspace Docket No. 95-AWP-34, The Final Rule amended Class E
airspace at Winnemucca, NV.
EFFECTIVE DATE: 0901 UTC February 29, 1996.
FOR FURTHER INFORMATION CONTACT: Scott Speer, Airspace Specialist,
System Management Branch, AWP-530, Air Traffic Division, Western-
Pacific Region, Federal Aviation Administration, 15000 Aviation
Boulevard, Lawndale, California 90261, telephone (310) 725-6533.
SUPPLEMENTARY INFORMATION:
History
Federal Register Document 96-377, Airspace Docket No. 95-AWP-34,
published on January 10, 1996 (61 FR 693), revised the description of
the Class E airspace area at Winnemucca, NV. An error was discovered in
the geographic coordinates for the Winnemucca, NV, Class E airspace
area. This action corrects that error.
Correction to Final Rule
Accordingly, pursuant to the authority delegated to me, the
geographic coordinates for the Class E airspace area at Winnemucca, NV,
as published in the Federal Register on January 10, 1996 (61 FR 693),
(Federal Register Document 96-377), are corrected as follows:
Sec. 71.1 [Corrected]
On page 694, in the second and third columns, the airspace
description for Winnemucca, NV, is corrected to read as follows:
* * * * *
AWP NV E5 Winnemucca, NV [Corrected]
Winnemucca Municipal Airport, NV.
(lat. 40 deg.53'47'' N, long. 117 deg.48'21'' W)
Winnemucca NDB
(lat. 40 deg.57'48'' N, long. 117 deg.50'29'' W)
Battle Mountain VORTAC
(lat. 40 deg.34'09'' N, long. 116 deg.55'20'' W)
That airspace extending upward from 700 feet above the surface
within a 4.3-mile radius of the Winnemucca Municipal Airport and
within 7.8 miles northwest and 4.3 miles east of the Winnemucca NDB
342 deg. and 162 deg. bearings, extended from the 4.3 miles south to
8.7 miles north of the NDB. That airspace extending upward from
1,200 feet above the surface within 4.3 miles northeast and 9.6
miles southwest of the Winnemucca NDB 342 deg. and 162 deg.
bearings, extending from the southeast edge of V-113 to 9.6 miles
southeast of the NDB and within 4.3 miles each side of the 162 deg.
bearing from the Winnemucca NDB, extending from 9.6 miles southeast
of the NDB to the north edge of V-32 and within 4.3 miles each side
of the Battle Mountain VORTAC 296 deg. radial extending from 10.4
miles to 43.4 miles northwest of the Battle Mountain VORTAC and that
airspace bounded by a line beginning at lat. 40 deg.33'00'' N, long.
117 deg.52'00'' W; to lat. 40 deg.37'01'' N, long. 117 deg.47'32''
W; to lat. 40 deg.33'58'' N, long. 117 deg.46'15'' W, thence to the
point of beginning and that airspace bounded by a line beginning at
lat. 41 deg.05'00'' N, long. 118 deg.12'30'' W; to lat.
41 deg.09'36'' N, long. 118 deg.08'50'' W; to lat. 41 deg.03'00'' N,
long. 118 deg.06'00'' W, thence to the point of beginning and that
airspace bounded by a line beginning at lat. 40 deg.45'38'' N, long.
117 deg.39'23'' W; to lat. 40 deg.36'30'' N, long. 117 deg.15'15''
W; to lat. 40 deg.35'00'' N, long. 117 deg.34'30'' W, thence to the
point of beginning.
* * * * *
[[Page 7698]]
Issued in Los Angeles, California, on February 14, 1996.
Leonard A. Mobley,
Acting Manager, Air Traffic Division, Western-Pacific Region.
[FR Doc. 96-4560 Filed 2-28-96; 8:45 am]
BILLING CODE 4910-13-M
Complete official Federal Register PDF
FR Doc. 96-4542 Regulatory Reinvention; Streamlining of Housing Finance Agency Risk-Sharing Program for Insured Affordable Multifamily Project Loans
[Federal Register Volume 61, Number 41 (Thursday, February 29, 1996)]
[Rules and Regulations]
[Pages 7946-7947]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-4542]
[[Page 7945]]
_______________________________________________________________________
Part V
Department of Housing and Urban Development
_______________________________________________________________________
24 CFR Part 266
Regulatory Reinvention; Streamlining of Housing Finance Agency Risk-
Sharing Program for Insured Affordable Multifamily Project Loans; Final
Rule
Federal Register / Vol. 61, No. 41 / Thursday, February 29, 1996 /
Rules and Regulations
[[Page 7946]]
DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT
Office of the Assistant Secretary for Housing-Federal Housing
Commissioner
24 CFR Part 266
[Docket No. FR-3981-F-01]
RIN 2502-AG60
Regulatory Reinvention; Streamlining of Housing Finance Agency
Risk-Sharing Program for Insured Affordable Multifamily Project Loans
AGENCY: Office of the Assistant Secretary for Housing-Federal Housing
Commissioner, HUD.
ACTION: Final rule.
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SUMMARY: This final rule streamlines HUD's regulations governing the
Housing Finance Agency (HFA) Risk-Sharing program at 24 CFR part 266.
Specifically, this rule removes regulatory provisions from part 266
which are best set forth in non-regulatory guidance. Under the HFA
Risk-Sharing Program, HFAs are permitted to originate and service
mortgage loans that are fully insured by the Federal Housing
Administration. Participating HFAs are required to share in the risk
associated with monetary losses that may result from loan defaults.
HUD's elimination of redundant or unnecessary language from part 266
will increase program flexibility and assist in HUD's continuing
efforts to streamline title 24.
EFFECTIVE DATE: April 1, 1996.
FOR FURTHER INFORMATION CONTACT: Jane Luton, Director, New Products
Division, Office of Multifamily Housing Development, Room 6142,
Department of Housing and Urban Development, 451 Seventh Street, SW,
Washington, DC 20410, telephone number (202) 708-2556 (this is not a
toll-free number). For hearing- and speech-impaired persons, this
number may be accessed via TDD by calling the Federal Information Relay
Service at 1-800-877-8339.
SUPPLEMENTARY INFORMATION:
I. Background
On March 4, 1995, President Clinton issued a memorandum to all
Federal departments and agencies regarding regulatory reinvention. In
response to this memorandum, HUD conducted a page-by-page review of its
regulations to determine which can be eliminated, consolidated, or
otherwise improved. As part of this review, HUD reexamined its
regulations governing the Housing Finance Agency (HFA) Risk-Sharing
Program at 24 CFR part 266. Under the HFA Risk-Sharing Program, HFAs
are permitted to originate and service mortgage loans that are fully
insured by the Federal Housing Administration. Participating HFAs are
required to share in the risk associated with monetary losses that may
result from loan defaults.
HUD has determined that the regulations for the HFA Risk-Sharing
Program can be improved and streamlined by eliminating unnecessary
provisions. After careful consideration, HUD has decided to retain most
of part 266, inasmuch as the regulations are incorporated by reference
in each approved HFA's Risk-Sharing Agreement. Since the Risk-Sharing
Agreement forms the basis for operating the program, it is in HUD's
interest, and that of program participants, to retain most sections of
part 266. However, this final rule removes those sections of part 266
concerning the application process and the contents of the Risk-Sharing
Agreement.
With respect to the section on application requirements,
applications are solicited through publication of a notice in the
Federal Register. Since that notice contains the requirements for
submitting an application, including required exhibits, it is
unnecessary to repeat such requirements in part 266. Therefore, this
final rule revises Sec. 266.105, which concerns the application
requirements, to simply state that HUD will identify all necessary
requirements for the submission of an application through Federal
Register notice.
With respect to the section on the contents of the Risk-Sharing
Agreement, an agreement for use by State and local HFAs participating
in the program has been developed. Therefore, it is no longer necessary
to list the items to be included in the Risk-Sharing Agreement.
Accordingly, this final rule amends Sec. 266.15 to remove such a list.
II. Justification for Final Rulemaking
HUD generally publishes a rule for public comment before issuing a
rule for effect, in accordance with its own regulations on rulemaking
in 24 CFR part 10. However, part 10 provides for exceptions to the
general rule if the agency finds good cause to omit advance notice and
public participation. The good cause requirement is satisfied when
prior public procedure is ``impracticable, unnecessary, or contrary to
the public interest'' (24 CFR 10.1). HUD finds that good cause exists
to publish this rule for effect without first soliciting public
comment. This final rule merely removes unnecessary provisions which
can best be set forth in non-regulatory guidance. This rule does not
establish or affect substantive policy. Therefore, prior public comment
is unnecessary.
III. Other Matters
A. Regulatory Flexibility Act
The Secretary, in accordance with the Regulatory Flexibility Act (5
U.S.C. 605(b)), has reviewed and approved this final rule, and in so
doing certifies that this rule will not have a significant economic
impact on a substantial number of small entities. This rule merely
streamlines 24 CFR part 266 by removing provisions which do not require
regulatory codification. The rule will have no adverse or
disproportionate economic impact on small businesses.
B. Environmental Impact
This rulemaking does not have an environmental impact. This
rulemaking simply amends an existing regulation by streamlining
provisions and does not alter the environmental effect of the
regulations being amended. A Finding of No Significant Impact with
respect to the environment was made in accordance with HUD regulations
in 24 CFR part 50 that implement section 102(2)(C) of the National
Environmental Policy Act of 1969 (42 U.S.C. 4332) at the time of
development of regulations implementing the HFA Risk-Sharing Program.
That finding remains applicable to this rule and is available for
public inspection between 7:30 a.m. and 5:30 p.m. weekdays in the
Office of the Rules Docket Clerk, Office of General Counsel, Room
10276, Department of Housing and Urban Development, 451 Seventh Street,
SW, Washington, DC.
C. Executive Order 12612, Federalism
The General Counsel, as the Designated Official under section 6(a)
of Executive Order 12612, Federalism, has determined that this rule
will not have substantial direct effects on States or their political
subdivisions, or the relationship between the Federal government and
the States, or on the distribution of power and responsibilities among
the various levels of government. No programmatic or policy changes
will result from this rule that would affect the relationship between
the Federal Government and State and local governments.
D. Executive Order 12606, The Family
The General Counsel, as the Designated Official under Executive
Order 12606, The Family, has determined that this rule will not have
the potential for significant impact on
[[Page 7947]]
family formation, maintenance, or general well-being, and thus is not
subject to review under the Order. No significant change in existing
HUD policies or programs will result from promulgation of this rule.
List of Subjects in 24 CFR Part 266
Aged, Fair housing, Intergovernmental relations, Mortgage
insurance, Low and moderate income housing, Reporting and recordkeeping
requirements.
Accordingly, 24 CFR part 266 is amended as follows:
PART 266--HOUSING FINANCE AGENCY RISK-SHARING PROGRAM FOR INSURED
AFFORDABLE MULTIFAMILY PROJECT LOANS
1. The authority citation for 24 CFR part 266 continues to read as
follows:
Authority: 12 U.S.C. 1707; 42 U.S.C. 3535(d).
2. Section 266.15 is revised to read as follows:
Sec. 266.15 Risk-Sharing Agreement.
Execution of a Risk-Sharing Agreement is a prerequisite to
participation in this program. The Risk-Sharing Agreement shall be in a
form acceptable to the Commissioner.
3. Section 266.105 is revised to read as follows:
Sec. 266.105 Application requirements.
(a) Applications for approval as a HUD-approved multifamily
mortgagee. HFAs that are not HUD-approved mortgagees at the time of
their application to participate in the program under this part must
submit, concurrently, separate applications for approval to participate
in the program and for approval to operate as a HUD-approved mortgagee.
Application for approval as a HUD-approved mortgagee must be submitted
to HUD in accordance with the applicable HUD requirements.
(b) Applications for participation in program. Applications from
HFAs for approval to participate in the program under this part will be
submitted in response to a notice published in the Federal Register.
The notice will include the required application exhibits and any other
information or documentation necessary for approval for participation
in the Risk-Sharing Program.
Dated: February 22, 1996.
Nicolas P. Retsinas,
Assistant Secretary for Housing-Federal Housing Commissioner.
[FR Doc. 96-4542 Filed 2-28-96; 8:45 am]
BILLING CODE 4210-27-P
Complete official Federal Register PDF
FR Doc. 96-4507 Airworthiness Directives; Boeing Model 767 Series Airplanes
[Federal Register Volume 61, Number 41 (Thursday, February 29, 1996)]
[Rules and Regulations]
[Pages 7694-7695]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-4507]
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DEPARTMENT OF TRANSPORTATION
14 CFR Part 39
[Docket No. 96-NM-02-AD; Amendment 39-9526; AD 96-03-02 R1]
Airworthiness Directives; Boeing Model 767 Series Airplanes
AGENCY: Federal Aviation Administration, DOT.
ACTION: Final rule; correction.
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SUMMARY: This amendment clarifies information in an existing
airworthiness directive (AD), applicable to certain Boeing Model 767
series airplanes, that currently requires inspections to detect
cracking and corrosion of the aft trunnion of the outer cylinder of the
main landing gear (MLG) and various follow-on actions. That amendment
also provides for termination of the inspections by repairing the outer
cylinder and installing new aft trunnion bushings. The actions
specified in that AD are intended to prevent the collapse of the MLG
due to fracture of the aft trunnion outer cylinder. This amendment
clarifies an inspection requirement of that AD. This amendment is
prompted by communications received from affected operators that
certain of the current requirements of the AD are unclear.
DATES: Effective February 16, 1996.
The incorporation by reference of certain publications listed in
the regulations was approved previously by the Director of the Federal
Register as of February 16, 1996 (61 FR 3552, February 1, 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, 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: James G. Rehrl, Aerospace Engineer,
Airframe Branch, ANM-120S, FAA, Transport Airplane Directorate, Seattle
Aircraft Certification Office, 1601 Lind Avenue, SW., Renton,
Washington 98055-4056; telephone (206) 227-2783; fax (206) 227-1181.
SUPPLEMENTARY INFORMATION: On January 22, 1996, the FAA issued AD 96-
03-02, amendment 39-9497 (61 FR 3552, February 1, 1996), which is
applicable to certain Boeing Model 767 series airplanes. That AD
requires various inspections to detect cracking and corrosion of the
aft trunnion and various follow-on actions. That AD also provides
operators with the option of terminating the requirement for the
repetitive inspections by repairing the outer cylinder, and replacing
the aft trunnion and crossbolt bushings with new bushings. That action
was prompted by a report of the collapse of the right main landing gear
(MLG) due to fracture of the aft trunnion outer cylinder. The actions
required by that AD are intended to prevent the collapse of the MLG due
to stress corrosion cracking of the aft trunnion of the outer cylinder.
Since the issuance of that AD, the FAA has received communications
from some affected operators questioning the inspection requirements of
paragraph (a) of the AD. That paragraph states that operators are to
perform the inspections described in ``Part 3 of the Accomplishment
Instructions of Boeing Alert Service Bulletin 767-32A0151, dated
November 30, 1995.'' The operators question whether ``Part 3'' is a
typographical error that should have read ``paragraph III.''
The FAA finds that clarification is necessary. Paragraph III of
Boeing Alert Service Bulletin 767-32A0151 is entitled ``Accomplishment
Instructions.'' Within paragraph III are five separate parts, entitled
``Parts 1, 2, 3, 4, and 5,'' each of which describes various inspection
procedures and follow-on actions.
The FAA's intent in AD 96-03-02 was to require that operators
perform all of the inspections (and follow-on actions) described in
Parts 1, 2, 3, 4, and 5, of paragraph III, ``Accomplishment
Instructions,'' of the referenced service bulletin. The Supplementary
Information section of the preamble to that AD correctly described all
of the inspections contained in Parts 1, 2, 3, 4, and 5, of paragraph
III of the service bulletin, as those inspections that would be
required by the AD. However, the wording of paragraph (a) of AD 96-03-
02 inadvertently was published as, ``Perform the inspections described
in Part 3 of the Accomplishment Instructions of Boeing Alert Service
Bulletin 767-32A0151 * * *'' With this wording, operators may
incorrectly interpret paragraph (a) as requiring the accomplishment of
only the inspections that are described in Part 3 of paragraph III of
the service bulletin. Such misinterpretation could result in operators
failing to perform the required inspections that are described in Parts
1, 2, 4, and 5, of paragraph III.
Since it is obvious that, currently, the requirements of AD 96-03-
02 are not clearly worded, the FAA has determined that the wording of
paragraph (a) of the AD must be revised to clarify the required
actions. This action revises paragraph (a) to state that operators must
perform all of the inspections described in paragraph III,
``Accomplishment Instructions,'' of the Boeing alert service bulletin.
Action is taken herein to clarify these requirements of AD 96-03-02
and to correctly add the AD as an amendment to section 39.13 of the
Federal Aviation Regulations (14 CFR 39.13).
The final rule is being reprinted in its entirety for the
convenience of affected operators. The effective date remains February
16, 1996.
Since this action only clarifies a current requirement, it has no
adverse economic impact and imposes no additional burden on any person.
Therefore, notice and public procedures hereon are unnecessary.
List of Subjects in 14 CFR Part 39
Air transportation, Aircraft, Aviation safety, Incorporation by
reference, Safety.
Adoption of the Correction
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.
[[Page 7695]]
Sec. 39.13 [Amended]
2. Section 39.13 is amended by removing amendment 39-9497 (61 FR
3552, February 1, 1996), and by adding a new airworthiness directive
(AD), amendment 39-9526, to read as follows:
96-03-02 R1 Boeing: Amendment 39-9526. Docket 96-NM-02-AD. Revises
AD 96-03-02, Amendment 39-9497.
Applicability: Model 767 series airplanes having line numbers
001 through 609, on which the terminating action described in
paragraph (e) of this AD has not been accomplished; certificated in
any category.
Note 1: This AD applies to each airplane identified in the
preceding applicability provision, regardless of whether it has been
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 (g) 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 collapse of the main landing gear (MLG) due to
stress corrosion cracking of the aft trunnion of the outer cylinder,
accomplish the following:
(a) Perform the inspections described in paragraph III,
Accomplishment Instructions, of Boeing Alert Service Bulletin 767-
32A0151, dated November 30, 1995, to detect cracking and corrosion
of the aft trunnion of the outer cylinder of the MLG at the time
specified in paragraph (a)(1), (a)(2), or (a)(3) of this AD, as
applicable. These inspections are to be accomplished in accordance
with Figure 1 of that alert service bulletin. Repeat these
inspections thereafter at the intervals specified in that alert
service bulletin. To determine the category in which an airplane
falls, the age of the outer cylinder of the MLG is to be calculated
as of the effective date of this AD. For airplanes on which the age
of the right MLG differs from the age of the left MLG, an operator
may place the airplane into a category that is the higher
(numerically) of the two categories to ease its administrative
burden, and to simplify the recordkeeping requirements imposed by
this AD. Once the category into which an airplane falls is
determined, operators must obtain approval from the Manager, Seattle
Aircraft Certification Office (ACO), FAA, Transport Airplane
Directorate, to move that airplane into another category.
Note 2: The broken (dash) lines used in Figure 1 of Boeing Alert
Service Bulletin 767-32A0151, dated November 30, 1995, denote ``go
to'' actions for findings of discrepancies detected during any of
the inspections required by this AD.
Note 3: Boeing Alert Service Bulletin 767-32A0151, dated
November 30, 1995, refers to Boeing Alert Service Bulletin 767-
32A0148, dated December 21, 1995, for procedures to repair the outer
cylinder and replace the bushings in the outer cylinder of the MLG
with new bushings.
(1) For airplanes identified as Category 3 in paragraph I.C. of
Boeing Alert Service Bulletin 767-32A0151, dated November 30, 1995:
Perform the initial inspections within 30 days after the effective
date of this AD.
(2) For airplanes identified as Category 2 in paragraph I.C. of
Boeing Alert Service Bulletin 767-32A0151, dated November 30, 1995:
Perform the initial inspections within 90 days after the effective
date of this AD.
(3) For airplanes identified as Category 1 in paragraph I.C. of
Boeing Alert Service Bulletin 767-32A0151, dated November 30, 1995:
Perform the initial inspections prior to the accumulation of 2\1/2\
years since the MLG outer cylinder was new or overhauled, or within
150 days after the effective date of this AD, whichever occurs
later.
(b) If no cracking or corrosion is detected, accomplish the
follow-on actions described in the Boeing Alert Service Bulletin
767-32A0151, November 30, 1995, at the time specified in the alert
service bulletin. These follow-on actions are to be accomplished in
accordance with that alert service bulletin.
(c) If any cracking is detected, prior to further flight,
replace the outer cylinder with a new or serviceable outer cylinder
in accordance with Boeing Alert Service Bulletin 767-32A0151, dated
November 30, 1995.
(d) If any corrosion is detected, accomplish the follow-on
actions at the time specified in the ``Corrosion Flowchart,'' in
Figure 1 of Boeing Alert Service Bulletin 767-32A0151, dated
November 30, 1995. The follow-on actions are to be accomplished in
accordance with that alert service bulletin.
(e) Repair of the outer cylinder and replacement of the bushings
in the aft trunnion and crossbolt of the MLG with new bushings in
accordance with Boeing Alert Service Bulletin 767-32A0148, dated
December 21, 1995, constitute terminating action for the inspection
requirements of this AD, and for the requirements of AD 95-19-10,
amendment 39-9372, and AD 95-20-51, amendment 39-9398. Boeing Alert
Service Bulletin 767-32A0148, dated December 21, 1995, refers to
Component Maintenance Manual (CMM) 32-11-40. Operators should note
that, although the CMM specifies plugging the aft trunnion
lubrication fitting with a rivet, this AD does not require plugging
the lube fitting to terminate the requirement of this AD, AD 95-19-
10, or AD 95-20-51.
(f) Accomplishment of the requirements of this AD is considered
acceptable for compliance with AD 95-19-10, amendment 39-9372, and
AD 95-20-51, amendment 39-9398.
(g) 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 ACO. 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 4: Information concerning the existence of approved
alternative methods of compliance with this AD, if any, may be
obtained from the Seattle ACO.
(h) 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.
(i) The actions shall be done in accordance with Boeing Alert
Service Bulletin 767-32A0151, dated November 30, 1995, and Boeing
Alert Service Bulletin 767-32A0148, dated December 21, 1995. This
incorporation by reference 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 February 16, 1996 (61 FR 3552, February 1, 1996).
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.
(j) This amendment is effective on February 16, 1996.
Issued in Renton, Washington, on February 22, 1996.
Darrell M. Pederson,
Acting Manager, Transport Airplane Directorate, Aircraft Certification
Service.
[FR Doc. 96-4507 Filed 2-28-96; 8:45 am]
BILLING CODE 4910-13-P
Complete official Federal Register PDF
FR Doc. 96-4480 Defense Federal Acquisition Regulation Supplement; Miscellaneous Amendments
[Federal Register Volume 61, Number 41 (Thursday, February 29, 1996)]
[Rules and Regulations]
[Pages 7739-7751]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-4480]
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DEPARTMENT OF DEFENSE
48 CFR Parts 202, 204, 209, 213, 215, 216, 217, 223, 225, 228, 232,
235, 236, 242, 246, 252, 253, and Appendix G to Chapter 2
[Defense Acquisition Circular (DAC) 91-10]
Defense Federal Acquisition Regulation Supplement; Miscellaneous
Amendments
AGENCY: Department of Defense (DoD).
ACTION: Final rules.
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SUMMARY: Defense Acquisition Circular (DAC) 91-10 amends the Defense
Federal Acquisition Regulation Supplement (DFARS) to revise, finalize,
or add language on undefinitized contract actions; warranties;
institutions of higher education; should cost reviews; construction and
architect-engineer contracts; sensitive conventional arms, ammunition,
and explosives; international trade agreements; foreign offset
agreements; tank and automotive forging items; progress payment rates;
research and development contracting; contract administration; and
foreign military sales.
EFFECTIVE DATE: February 29, 1996.
FOR FURTHER INFORMATION CONTACT:
Mrs. Susan Buckmaster, OUSD(A&T)DP(DAR), IMD 3D139, 3062 Defense
Pentagon, Washington, DC 20301-3062. Telephone (703) 602-0131. Telefax
(703) 602-0350.
SUPPLEMENTARY INFORMATION:
A. Background
This Defense Acquisition Circular (DAC) 91-10 includes 17 rules and
miscellaneous editorial amendments. Three of the rules in the DAC
(Items VII, X, and XVII) were published previously in the Federal
Register (61 FR 130, January 3, 1996; 61 FR 3600, February 1, 1996; and
February 26, 1996; respectively) and thus are not included as part of
this rulemaking notice. These three rules are being published in the
DAC to conform the loose-leaf edition of DFARS to the previously
published revisions.
B. Regulatory Flexibility Act
DAC 91-10, Items IV, XII, XIII, XIV, XV, and XVI
The Regulatory Flexibility Act does not apply because these rules
are not significant revisions within the meaning of the Regulatory
Flexibility Act, 5 U.S.C. 601 et seq. However, comments from small
entities will be considered in accordance with Section 610 of the Act.
Please cite the applicable DFARS case number in correspondence.
DAC 91-10, Items I, III, V, VIII, IX, and XI
DoD certifies that these rules will not have a significant economic
impact on a substantial number of small entities within the meaning of
the Regulatory Flexibility Act because:
Item I--The rule primarily (1) pertains to internal Government
considerations regarding use of warranties; and (2) consolidates and
standardizes existing regulatory requirements pertaining to
undefinitized contract actions.
Item III--Contracts awarded to small entities normally are not
subject to program or overhead should-cost reviews.
Item V--The rule merely provides a standard method of implementing
security requirements which already exist under DoD 5100.76-M.
Item VIII--The rule retains the policy of acquiring tank and
automotive forging items from domestic sources to the maximum extent
practicable. The new exception only applies to forging items purchased
as tank and automotive spare parts, when the end use of the spare parts
is unknown.
Item IX--The rule merely clarifies the scope of offset
administrative costs that
[[Page 7740]]
contractors may recover under foreign military sales contracts. Also,
most companies involved in offset arrangements are not small
businesses.
Item XI--The reduction in the customary progress payment rate only
applies to large businesses. While the rule also precludes the use of
flexible progress payments for contracts resulting from solicitations
issued on or after November 30, 1993, this change is not expected to
have a significant economic impact on a substantial number of small
entities, because the customary progress payment rates for small and
small disadvantaged businesses generally are more favorable than a
flexible progress payment rate with its associated terms and
conditions.
DAC 91-10, Items II and VI
The Regulatory Flexibility Act applies. A final regulatory analysis
has been performed and is available by writing the Defense Acquisition
Regulations Council, OUSD(A&T)DP(DAR), 3062 Defense Pentagon,
Washington, DC 20301-3062
C. Paperwork Reduction Act
DAC 91-10, Items I, II, III, IV, VI, VIII, IX, XI, XII, XIII, XIV, XV,
and XVI
The Paperwork Reduction Act does not apply because these rules do
not impose any information collection requirements which require the
approval of OMB under 44 U.S.C. 3501 et seq.
DAC 91-10, Item V
The Paperwork Reduction Act applies. OMB has approved the
information collection requirement under OMB Control Number 0704-0385.
Michele P. Peterson,
Executive Editor, Defense Acquisition Regulations Council.
Defense Acquisition Circular (DAC) 91-10 amends the Defense Federal
Acquisition Regulation Supplement (DFARS) 1991 edition. The amendments
are summarized as follows:
Item I--Contract Award (DFARS Case 95-D702)
This final rule (1) amends DFARS Parts 216 and 217 to implement
Section 1505 of Pub. L. 103-355 and to clarify guidance on
undefinitized contract actions (UCAs); (2) amends the guidance on
warranties at 246.770 to implement Section 2402 of Pub. L. 103-355; and
(3) adds a new clause on definitization of UCAs at 252.217-7027. The
new clause is similar to, and will be used instead of, the clause as
FAR 52.216-25, Contract Definitization, which was designed for use in
letter contracts only.
Item II--Institutions of Higher Education (DFARS Case 94-D310)
The interim rule published as Item IX of DAC91-9 is revised and
finalized. The rule implements Section 558 of the Fiscal Year 1995
Defense Authorization Act (Pub. L. 103-337). Section 558 provides that
no funds available to DoD may be provided by grant or contract to any
institution of higher education that has a policy of denying, or which
effectively prevents the Secretary of Defense from obtaining for
military recruiting purposes, entry to campuses, access to students on
campuses, or access to directory information pertaining to students.
The final rule differs from the interim rule in that it makes
clarifying revisions at 209.470-1 and 252.209-7005, and adds language
at 209.470-1(c) to state that, when specific subordinate elements of an
institution of higher education, rather than the institution as a
whole, have a prohibited policy or practice, the prohibition on use of
DoD funds applies only to those subordinate elements.
Item III--Overhead Should Cost Reviews (DFARS Case 92-D010
This final rule revises DFARS 215.810 to specify when DoD
activities should consider performing an overhead should cost review of
a contractor business unit. This DFARS rule supplements the FAR rule
published as Item VIII of Federal Acquisition Circular 90-37 on January
26, 1996. Both the FAR and the DFARS rules become effective on March
26, 1996.
Item IV--Cost-Plus-Fixed-Fee Contracts for Military Construction (DFARS
Case 95-D024)
This final rule adds new sections at DFARS 216.306 and 232.703-70
and revises 236.271 to expand guidance on statutory restrictions
pertaining to the use of cost-plus-fixed-fee contracts for military
construction.
Item V--Safeguarding Sensitive Conventional Arms, Ammunition, and
Explosives (DFARS Case 95-D001)
This final rule adds a new subpart at DFARS 223.72 and a new
contract clause at 252.223-7007 to provide guidance on physical
security requirements for contracts involving sensitive conventional
arms, ammunition, and explosives. Section 204.202 is amended to specify
additional requirements for distribution of contracts containing the
clause at 252.223-7007.
Item VI--Applicability of Trade Agreements (DFARS Case 95-D022)
This final rule amends DFARS 225.402 to provide that the value of
an acquisition for purposes of determining the applicability of both
the North American Free Trade Agreement Act and the Trade Agreements
Act is the total value of all end products subject to the acts.
Item VII--Uruguay Round (1996 Agreement) (DFARS Case 95-D306)
This final rule was issued by Departmental Letter 95-019, effective
January 1, 1996. The rule amends DFARS 225.402 and the clause at
252.225-7007 to implement the DoD-unique requirements of the
renegotiated General Agreement on Tariffs and Trade (GATT) Government
Procurement Agreement (1996 Code) (Uruguay Round), which became
effective January 1, 1996. This agreement is implemented in statute by
the Uruguay Round Agreement Act, Pub. L. 103-465, which amends the
Trade Agreements Act of 1979.
Item VIII--Tank and Automotive Forging Items (DFARS Case 95-D003)
This final rule amends DFARS Subpart 225.71 to add an exception to
the foreign source restrictions on the acquisition of forgings. The
rule excludes forging purchases as tank and automotive spare parts from
foreign source restrictions, except when it is known that the parts are
for use in tanks only.
Item IX--Offset Implementation Costs (DFARS Case 95-D019)
This final rule amends DFARS 225.7303-2 to clarify that, under a
foreign military sales contract, a contractor may recover costs
incurred to implement its offset agreement with a foreign government or
international organization, if the foreign military sale Letter of
Offer and Acceptance is financed wholly with customer cash or repayable
foreign military finance credits.
Item X--Alternatives to Miller Act Bonds (DFARS Case 95-D305)
This interim rule was issued by Departmental Letter 96-001,
effective February 1, 1996. The rule revises the interim rule which was
published as Item XXIII of DAC 91-9 to provide alternative payment
protections for construction contracts between $25,000 and $100,000,
pending implementation of Section 4104(b)(2) of the Federal Acquisition
Streamlining Act of 1994 (Pub. L. 103-355) in the FAR. This interim
rule amends the guidance at
[[Page 7741]]
DFARS 228.171 to require the contracting officer to specify two or more
alternative payment protections when using the clause at 252.228-7007,
and to give particular consideration to use of an irrevocable letter of
credit as one of the specified alternatives. This rule also amends the
clause at 252.228-7007 to exclude payment bonds from the payment
protections under which the contracting officer may access funds.
Item XI--Reduction in Progress Payment Rates (DFARS Case 93-D305)
The interim rule published as Item XXVII of DAC 91-6 is revised and
finalized. The rule implements Section 8155 of the Fiscal Year 1994
Defense Appropriations Act (Pub. L. 103-139). Section 8155 requires DoD
to reduce the customary progress payment rate for large business
concerns from 85 percent to 75 percent for contracts resulting from
solicitations issued on or after November 11, 1993. The final rule
differs from the interim rule in that it makes an editorial change in
the table at 232.502-1-71, and amends the clause at 252.232-7004 to
state that the 75 percent customary progress payment rate for large
business concerns also applies to progress payments made under
undefinitized contract actions.
Item XII--Streamlined Research and Development (R&D) Update (DFARS Case
95-D036)
This final rule amends DFARS Subpart 235.70 to update
administrative information pertaining to the streamlined R&D
contracting test program, and to revise the list of clauses in the
streamlined R&D contracting format to conform to FAR and DFARS
revisions which occurred since initiation of the test program.
Item XIII--Performance Evaluations for Construction and Architect-
Engineer Contracts (DFARS Case 95-D034)
This final rule amends DFARS 236.201 and 236.604 to prescribe use
of DD Forms 2626 and 2631 in lieu of Standard Forms 1420 and 1421,
respectively. The forms are used to document contractor performance
under construction and architect-engineer contracts. Copies of DD Forms
2626 and 2631 are added to Subpart 253.3.
Item XIV--Magnitude of Construction Projects (DFARS Case 95-D031)
This final rule adds a new section at DFARS 236.204 to provide
additional price ranges for identifying the magnitude of construction
projects in advance notices and solicitations.
Item XV--Flexible Contract Administration Services (DFARS Case 95-
D030)
This final rule amends DFARS 242.203 to expand the conditions under
which the Defense Contract Management Command may perform contract
administration services on a military installation.
Item XVI--Military Assistance Program Address (MAPAD) Codes (DFARS Case
95-D032)
This final rule amends DFARS 253./213-70 to clarify instructions
for inclusion of foreign military sale shipment information in Block 14
of DD Form 1155.
Item XVII--Allowability of Costs (DFARS Case 95-D309)
This interim rule was issued by Departmental Letter 96-002,
effective February 26, 1996. The rule adds language at DFARS 231.205-6
to implememt Section 8122 of the Fiscal Year 1996 Defense
Appropriations Act (Pub. L. 104-61). Section 8122 prohibits DoD from
using fiscal year 1996 funds to reimburse a contractor for costs paid
by the contractor to an employee for a bonus or other payment in excess
of the normal salary paid to the employee, when such payment is part of
restructuring costs associated with a business combination.
Item XVIII--Small Disadvantaged Business Utilization Program
(Information Item)
On October 23, 1995, the Under Secretary of Defense for Acquisition
and Technology suspended those sections of the DFARS which prescribe
set-aside of acquisitions for small disadvantaged businesses. This
suspension takes account of the Supreme Court's decision in Adarand
Constructors, Inc. v. Pena, 63 U.S.L.W. 4523 (U.S. June 12, 1995),
while an interagency Government-wide review of affirmative action
programs is conducted. The suspended DFARS sections are 219.501(S-70),
219.502-2-70, 219.502-4, 219.504(b)(i), 219.506, 219.508(e), 219.508-
70, and 252.219-7002. Although these sections, and references thereto,
still appear in the DFARS text, use of these sections is suspended
until further notice.
Item XIX--Editorial Revisions
(a) DFARS 202.101 and Appendix G are amended to update activity
names and addresses.
(b) DFARS Part 213 is amended to update statutory references and to
conform to revisions to FAR Part 13 published in Federal Acquisition
Circular 90-29.
(c) DFARS 228.106-4, 228.106-4-70, 228.106-6, and 252.228-7006 are
deleted. The guidance in these sections has been superseded by the
guidance in FAR 28.106-4(b), 28.106-6(d), and 52.228-12, published in
Federal Acquisition Circular 90-32.
(d) DFARS Part 253 is amended to update DD Forms 375, 375c, 428,
1659, 2222, 2222-2, and 2604. (This amendment is being made only in the
loose-leaf edition of the DFARS.)
Interim Rules Adopted as Final With Changes
PARTS 209 AND 252--[AMENDED]
The interim rule published at 60 FR 13073 on March 10, 1995, and
amended at 60 FR 61593 and 61600 on November 30, 1995, is adopted as
final with a revision at section 209.470-1 and amendments at section
252.209-7005.
PARTS 232 AND 252--[AMENDED]
The interim rule published at 58 FR 62045 on November 24, 1993, and
corrected at 58 FR 64363 on December 6, 1993, is adopted as final with
amendments at section 252.232-7004.
List of Subjects in 48 CFR Parts 202, 204, 209, 213, 215, 216, 217,
223, 225, 228, 232, 235, 236, 242, 246, 252, 253, and Appendix G to
Chapter 2
Government procurement.
Amendments to 48 CFR Chapter 2 (Defense Federal Acquisition Regulation
Supplement)
48 CFR Chapter 2 (the Defense Federal Acquisition Regulation
Supplement) is amended as set forth below.
1. The authority for 48 CFR Parts 202, 204, 209, 213, 215, 216,
217, 223, 225, 228, 232, 235, 236, 242, 246, 252, 253, and Appendix G
to Chapter 2 continues to read as follows:
Authority: 41 U.S.C. 421 and 48 CFR Chapter 1.
PART 202--DEFINITIONS OF WORDS AND TERMS
202.101 [Amended]
2. Section 202.101 is amended in the definition entitled
``Contracting activity'' under the heading ``NAVY,'' by removing the
two entries ``Ships Parts Control Center'' and ``Navy Aviation Supply
Office'', by adding the entry ``Naval Inventory Control Point'' after
the entry ``Naval Facilities Engineering Command''; and by revising the
entry ``U.S. Marine Corps Research, Development, and Acquisition
Command'' to read ``Marine Corps Systems Command''.
[[Page 7742]]
PART 204--ADMINISTRATIVE MATTERS
3. Section 204.202 is amended by removing in paragraph (1)(iii) the
word ``and''; by removing in paragraph (1)(iv) the period and adding
``; and''; and by adding a new paragraph (1)(v) to read as follows:
204.202 Agency distribution requirements.
(1) * * *
(v) One copy, or an extract of the pertinent information, to the
cognizant Defense Investigative Service office listed in DoD 5100.76-M,
Physical Security of Sensitive Conventional Arms, Ammunition, and
Explosives, when the clause at 252.223-7007, Safeguarding Sensitive
Conventional Arms, Ammunition, and Explosives, is included in the
contract.
* * * * *
PART 209--CONTRACTOR QUALIFICATIONS
4. Section 209.470-1 is revised to read as follows:
209.470-1 Policy.
(a) Section 558 of the National Defense Authorization Act for
Fiscal Year 1995 (Public Law 103-337) provides that no funds available
to DoD may be provided by grant or contract to any institution of
higher education that has a policy of denying or that effectively
prevents the Secretary of Defense from obtaining for military
recruiting purposes--
(1) Entry to campuses or access to students on campuses; or
(2) Access to directory information pertaining to students.
(b) Institutions of higher education that are determined under 32
CFR part 216 to have the policy or practice in paragraph (a) of this
subsection shall be listed as ineligible on the List of Parties
Excluded from Federal Procurement Programs published by the General
Services Administration (see FAR 9.404).
(c) In cases where a determination is made under 32 CFR part 216
that specific subordinate elements of an institution of higher
education, rather than the institution as a whole, have the policy or
practice in paragraph (a) of this subsection, 32 CFR part 216 provides
that the prohibition on use of DoD funds applies only to those
subordinate elements.
5. Part 213 heading is revised to read as follows:
PART 213--SIMPLIFIED ACQUISITION PROCEDURES
213.000 [Amended]
6. Section 213.000 is amended by revising the words ``small
purchase'' to read ``simplified acquisition'' and by revising the
threshold ``$100,000'' to read ``$200,000''.
7. Section 213.101 is amended by revising the introductory text; by
adding a comma in paragraph (1) between the word ``operations'' and the
word ``or''; and by revising paragraph (2). The revisions read as
follows:
213.101 Definitions.
Contingency operation is defined in 10 U.S.C. 101(a)(13) as a
military operation that--
* * * * *
(2) Results in the call or order to, or retention on, active duty
of members of the uniformed services under section 688, 12301(a),
12302, 12304, 12305, or 12406 of Title 10, chapter 15 of Title 10, or
any other provision of law during a war or during a national emergency
declared by the President or Congress.
213.204 [Amended]
8. Section 213.204 is amended by revising in paragraph (b) the
phrase ``above the dollar threshold at FAR 13.000'' to read ``not using
simplified acquisition procedures.''
213.402 [Amended]
9. Section 213.402 is redesignated as 213.401.
213.403 [Amended]
10. Section 213.403 is redesignated as 213.402.
213.404 [Amended]
11. Section 213.404 is redesignated as 213.403. Newly designated
Section 213.403 is amended by adding a period at the end of paragraph
(c)(i)(B); and by revising in paragraph (c)(ii) the words ``small
purchases'' to read ``simplified acquisitions.''
213.502-2 [Amended]
12. Section 213.502-2 is redesignated as Section 213.505-1. Newly
designated Section 213.505-1 is amended by revising the heading to read
``Optional Form (OF) 347, Order for Supplies or Services, and Optional
Form 348, Order for Supplies or Services Schedule-Continuation.''; by
removing in the introductory text the hyphen between the words
``Services'' and ``Schedule''; by adding a hyphen between the words
``Schedule'' and ``Continuation'', by revising in paragraph (b)(i) the
words ``small purchase'' to read ``simplified acquisition''; and by
revising the sentence in paragraph (b)(i)(F)(3) to read ``A purchase
order for acquisitions using simplified acquisition procedures.''
13. Section 213.505-3 is amended by revising paragraph (b)(1)
introductory text to read as follows:
213.505-3 Standard Form 44, Purchase Order-Invoice-Voucher.
(b)(1) The micro-purchase limitation applies to all purchasers
except that purchases up to the simplified acquisition threshold may be
made for--
* * * * *
14. Section 213.507 is amended by revising the heading; and by
revising paragraph (a)(i) to read as follows:
213.507 Provisions and clauses.
(a) * * *
(i) Unilateral purchase orders--
(A) FAR 52.252-2, Clauses Incorporated by Reference (required only
if other clauses are incorporated by reference);
(B) FAR 52.203-3, Gratuities;
(C) FAR 52.211-16, Variation in Quantity;
(D) FAR 52.222-3, Convict Labor (unless the order will be subject
to the Walsh-Healey Public Contracts Act (see FAR subpart 22.6));
(E) FAR 52.222-26, Equal Opportunity (unless exempt under FAR
22.807);
(F) FAR 52.225-3, Buy American Act-Supplies;
(G) FAR 52.232,-1, Payments;
(H) FAR 52.232-25, Prompt Payment;
(I) FAR 52.232-28, Electronic Funds Transfer Payment Methods;
(J) FAR 52.233-1, Disputes;
(K) FAR 52.246-1, Contractor Inspection Requirements (except when
an alternate level of quality assurance is necessary (see FAR 46.203
and 46.204)); and
(L) FAR 52.246-16, Responsibility for Supplies.
* * * * *
PART 215--CONTRACTING BY NEGOTIATION
15. Section 215.810 is revised to read as follows:
215.810 Should-cost review.
16. Section 215.810-2 is added to read as follows:
215.810-2 Program should-cost review.
(b) DoD contracting activities should consider performing a program
should-cost review before award of a definitive major systems contract
exceeding $100 million.
17. Section 215.810-3 is added to read as follows:
[[Page 7743]]
215.810-3 Overhead should-cost review.
(a) Contact the DCMC/DLA Overhead Center, Fort Belvoir, VA 22060-
6221, at (703) 767-3387, for questions on overhead should-cost
analysis.
(b)(i) The Defense Contract Management Command/Defense Logistics
Agency (DCMC/DLA), or the military department responsible for
performing contract administration functions (e.g., Navy SUPSHIP),
should consider, based on risk assessment, performing an overhead
should-cost review of a contractor business unit (as defined in FAR
31.001) when all of the following conditions exist:
(A) Projected annual sales to DoD exceed $1 billion.
(B) Projected DoD versus total business exceeds 30 percent;
(C) Level of sole-source DoD contracts is high;
(D) Significant volume of proposal activity is anticipated;
(E) Production or development of a major weapon system or program
is anticipated; and
(F) Contractor cost control/reduction initiatives appear
inadequate.
(ii) The head of the contracting activity may request an overhead
should-cost review for a business unit which does not meet the criteria
in paragraph (b)(i) of this subsection.
(iii) Overhead should-cost reviews are labor intensive. These
reviews generally involve participation by the contracting, contract
administration, and contract audit elements. The extent of availability
of military department, contract administration, and contract audit
resources to support DCMC/DLA-led teams should be considered when
determining whether a review will be conducted. Overhead should-cost
reviews generally shall not be conducted at a contractor business
segment more frequently than every three years.
PART 216--TYPES OF CONTRACTS
18. Section 216.306 is added to read as follows:
216.306 Cost-plus-fixed-fee contracts.
(c) Limitations.
(i) Annual military construction appropriations acts restrict the
use of cost-plus-fixed-fee contracts that--
(A) Are funded by a military construction appropriations act:
(B) Are estimated to exceed $25,000; and
(C) Will be performed within the United States, except Alaska.
(ii) The Secretaries of the military departments are authorized to
approve contracts described in paragraph (c)(i) of this section that
are for environmental work only, provided the environmental work is not
classified as construction, as defined by 10 U.S.C 2801.
(iii) The Secretary of Defense or designee must specifically
approve contracts described in paragraph (c)(i) of this section that
are not environmental work only.
19. Section 216.603-4 is revised to read as follows:
216.603-4 Contract clauses.
(b)(2) See 217.7406(a) for additional guidance regarding use of the
clause at FAR 52.216-24, Limitation of Government Liability.
(3) Use the clause at 252.217-7027, Contract Definitization, in
accordance with its prescription at 217.7406(b), instead of the clause
at FAR 52.216-25, Contract Definitization.
20. Section 216.703 is amended by revising paragraph (c) to read as
follows:
216.703 Basic ordering agreements
(c) Limitations. The period during which orders may be placed
against a basis ordering agreement may not exceed three years. The
contracting officer, with the approval of the chief of the contracting
office, may grant extensions for up to two years. No single extension
shall exceed one year. See subpart 217.74 for additional limitations on
the use of undefinitized orders under basic ordering agreements.
* * * * *
PART 217--SPECIAL CONTRACTING METHODS
21. Section 217.202 is amended by adding paragraph (3) to read as
follows:
217.202 Use of options.
* * * * *
(3) See subpart 217.74 for limitations on the use of undefinitized
options.
22. Section 217.7402 is amended by revising in the introductory
text the term ``UCA's'' to read ``UCAs'' and by revising paragraph (b)
to read as follows:
217.7402 Exceptions.
* * * * *
(a) * * *
(b) Purchases at or below the simplified acquisition threshold;
* * * * *
217.7404-3 [Amended]
23. Section 217.7404-3 is amended by revising in the introductory
text of paragraph (a) the word ``earliest'' to read ``earlier.''
24. Section 217.7406 is revised to read as follows:
217.7406 Contract clauses.
(a) Use the clause at FAR 52.216-24, Limitation of Government
Liability, in all UCAs, solicitations associated with UCAs, basic
ordering agreements, indefinite delivery contracts, and any other type
of contract providing for the use of UCAs.
(b) Use the clause at 252.217-7027, Contract Definitization, in all
UCAs, solicitations associated with UCAs, basic ordering agreements,
indefinite delivery contracts, and any other type of contract providing
for the use of UCAs. Insert the applicable information in paragraphs
(a), (b), and (d) of the clause. If, at the time of entering into the
UCA, the contracting officer knows that the definitive contract action
will meet the criteria of FAR 15.804-1 for not requiring submission of
cost or pricing data, the words ``and cost or pricing data'' may be
deleted from paragraph (a) of the clause.
PART 223--ENVIRONMENT, CONSERVATION, OCCUPATIONAL SAFETY, AND DRUG-
FREE WORKPLACE
25. A new Subpart 223.72 is added to read as follows:
Subpart 223.72--Safeguarding Sensitive Conventional Arms, Ammunition,
and Explosives
Sec.
223.7200 Definition.
223.7201 Policy.
223.7202 Preaward responsibilities.
223.7203 Contract clause.
Subpart 223.72--Safeguarding Sensitive Conventional Arms,
Ammunition, and Explosives
223.7200 Definition.
``Arms, ammunition, and explosives (AA&E),'' as used in this
subpart, means those items within the scope (chapter 1, paragraph B) of
DoD 5100.76-M, Physical Security of Sensitive Conventional Arms,
Ammunition, and Explosives.
223.7201 Policy.
(a) The requirements of DoD 5100.76-M, Physical Security of
Sensitive Conventional Arms, Ammunition, and Explosives, shall be
applied to contracts when--
(1) AA&E will be provided to the contractor or subcontractor as
Government-furnished property; or
(2) The principal development, production, manufacture, or purchase
of AA&E is for DoD use.
(b) The requirements of DoD 5100.76-M need not be applied to
contracts when--
[[Page 7744]]
(1) The AA&E to be acquired under the contract is a commercial item
within the meaning of FAR 2.101; or
(2) The contract will be performed in a Government-owned
contractor-operated ammunition production facility. However, if
subcontracts issued under such a contract will meet the criteria of
paragraph (a) of this section, the requirements of DoD 5100.76-M shall
apply.
223.7202 Preaward responsibilities.
When an acquisition involves AA&E, technical or requirements
personnel shall specify in the purchase request--
(a) That AA&E is involved; and
(b) Which physical security requirements of DoD 5100.76-M apply.
223.7203 Contract clause.
Under the clause at 252.223-7007, Safeguarding Sensitive
Conventional Arms, Ammunition, and Explosives, in all solicitations and
contracts to which DoD 5100.76-M applies, in accordance with the policy
at 223.7201. Complete paragraph (b) of the clause based on information
provided by cognizant technical or requirements personnel.
PART 225--FOREIGN ACQUISITION
26. Section 225.402 is amended by revising paragraph (a) to read as
follows:
225.402 Policy.
(a) To estimate the value of the acquisition, use the total
estimated value of end products subject to trade agreement acts (see
225.403-70).
(1) See 225.105 for evaluation of eligible products and U.S. made
end products.
* * * * *
27. Section 225.7102 is amended by revising the introductory text
to read as follows:
225.7102 Policy.
DoD requirements for the following, including acquisitions for
items containing the following, shall be acquired from domestic sources
(as described in the clause at 252.225-7025) to the maximum extent
practicable--
* * * * *
28. Section 225.7103 is amended by revising paragraph (e)(1);
redesignating paragraph (e)(2) as (e)(3); and adding paragraph (e)(2)
to read as follows:
225.7103 Exceptions.
* * * * *
(e) * * *
(1) Used for commercial vehicles or noncombat support military
vehicles;
(2) Purchased as tank and automotive spare parts (except when it is
known that the spare parts are for use in tanks only); or
* * * * *
29. Section 225.7303-2 is amended by revising paragraph (a)(3) to
read as follows:
225.7303-2 Cost of doing business with a foreign government or an
international organization.
(a) * * *
(3) Offset implementation costs.
(i) A U.S. defense contractor may recover costs incurred to
implement its offset agreement with a foreign government or
international organization if the foreign military sale Letter of Offer
and Acceptance is financed wholly with customer cash or repayable
foreign military finance credits.
(ii) The U.S. Government assumes no obligation to satisfy or
administer the offset requirement or to bear any of the associated
costs.
* * * * *
PART 228--BONDS AND INSURANCE
228.106-4, 228.106-4-70, and 228.106-6 [Removed]
30. Sections 228.106-4, 228.106-4-70, and 228.106-6 are removed.
PART 232--CONTRACT FINANCING
31. Section 232.703-70 is added to read as follows:
232.703-70 Military construction appropriations act restriction.
Annual military construction appropriations acts restrict the use
of funds appropriated by the acts for payments under cost-plus-fixed-
fee contracts (see 216.306(c)).
PART 235--RESEARCH AND DEVELOPMENT CONTRACTING
32. Section 235.7003 is amended by adding a new paragraph (c)(6) to
read as follows:
235.7003 Reporting requirements.
* * * * *
(c) * * *
(6) Number of actions removed from the test due to inability to
comply with RDSS/C procedures, with a brief description of the
reasons(s) for the inability to comply.
* * * * *
33. Section 235.7004-3(d) is amended by revising ``Alternate III''
to read ``Alternate II.''
34. Section 235.7006, Exhibit--Research and Development Streamlined
Contracting Format, Part I--The Schedule, Section H, Special Contract
Requirements, is amended by revising the designation ``(H.4)*'' to read
``(H.4)'' and by revising the address in (H.4) and by adding (H.6)* to
read as follows:
235.7006-- The research and development streamlined contracting
format.
Exhibit--Research and Development Streamlined Contracting format
Part I--The Schedule
Section H * * *
(H.4) * * * Defense Technical Information Center, Attn:
Registration Section (DTIC-BCS), 8725 John J. Kingman Road, Suite
0944, Fort Belvoir, VA 22060-6218,(703) 767-8273, or 1-800-CAL-DITC
(225-3842), menu selection 2.
* * * * *
*(H.6) (Insert nonstandard clause approved in accordance with
235.7006(c), if applicable.)
* * * * *
35. Section 235.7006, Exhibit--Research and Development Streamlined
Contracting Format, Part II--Contract Clauses, and Part IV,
Representations and Instructions, are revised to read as follows:
Part II--Contract Clauses
Section I, Contract Clauses
(I.1)............................ 52.252-2................................... Clauses Incorporated by
Reference.
(I.2)............................ 52.202-1................................... Definitions.
(I.3)............................ Reserved...................................
(I.4)............................ 52.203-3................................... Gratuities.
(I.5)............................ 52.203-5................................... Covenant Against Contingent
Fees.
(I.6)............................ 52.203-7................................... Anti-Kickback Procedures.
(I.7)............................ 52.203-10.................................. Price or Fee Adjustment for
Illegal or Improper Activity.
(Except educational
institutions.)
(I.8)............................ 52.209-6................................... Protecting the Government's
Interest When Subcontracting
with Contractors Debarred,
Suspended, or Proposed for
Debarment.
(I.9)............................ Reserved...................................
(I.10)........................... Reserved...................................
[[Page 7745]]
(I.11)........................... Reserved...................................
(I.12)........................... 52.215-26.................................. Integrity of Unit Prices.
(I.13)........................... 52.215-33.................................. Order of Precedence.
(I.14)........................... 52.216-7................................... Allowable Cost and Payment.
(Modified in accordance with
16.307 as applicable.)
(I.15)........................... Reserved...................................
(I.16)........................... Reserved...................................
(I.17)........................... Reserved...................................
(I.18)........................... Reserved...................................
(I.19)........................... 52.222-3................................... Convict Labor.
(I.20)........................... 52.222-26.................................. Equal Opportunity.
(I.21)........................... 52.222-35.................................. Affirmative Action for Special
Disabled and Vietnam Era
Veterans.
(I.22)........................... 52.222-36.................................. Affirmative Action for
Handicapped Workers.
(I.23)........................... 52.222-37.................................. Employment Reports on Special
Disabled Veterans and Veterans
of the Vietnam Era.
(I.24)........................... 52.223-6................................... Drug-Free Workplace.
(I.25)........................... 52.225-11.................................. Restrictions on Certain Foreign
Purchases.
(I.26)........................... 52.227-1................................... Authorization and Consent--
Alternate I.
(I.27)........................... 52.227-2................................... Notice and Assistance Regarding
Patent and Copyright
Infringement.
(I.28)........................... 52.228-7................................... Insurance--Liability to Third
Persons.
(I.29)........................... 52.232-9................................... Limitation on Withholding of
Payments.
(I.30)........................... 52.232-23.................................. Assignment of Claims.
(I.31)........................... 52.232-25.................................. Prompt Payment.
(I.32)........................... 52.232-28.................................. Electronic Funds Transfer
Payment Methods.
(I.33)........................... 52.233-1................................... Disputes.
(I.34)........................... 52.233-3................................... Protest After Award--Alternate
I.
(I.35)........................... 52.242-1................................... Notice of Intent to Disallow
Costs.
(I.36)........................... 52.242-13.................................. Bankruptcy.
(I.37)........................... 52.244-2................................... Subcontracts (Cost-Reimbursement
and Letter Contracts) Alternate
I.
(I.38)........................... 52.244-5................................... Competition in Subcontracting.
(I.39)........................... 52.247-1................................... Commercial Bill of Lading
Notations.
(I.40)........................... 52.249-14.................................. Excusable Delays.
(I.41)........................... 52.253-1................................... Computer-Generated Forms.
*(I.42).......................... 52.203-9................................... Requirement for Certificate of
Procurement Integrity-
Modification.
*(I.43).......................... 52.203-12.................................. Limitation on Payments to
Influence Certain Federal
Transactions.
*(I.44).......................... 52.204-2................................... Security Requirements.
*(I.45).......................... 52.204-2................................... Security Requirements-Alternate
I. (For educational
institutions.)
*(I.46).......................... 52.215-22.................................. Price Reduction for Defective
Cost or Pricing Data.
*(I.47).......................... 52.215-23.................................. Price Reduction for Defective
Cost or Pricing Data
Modications.
*(I.48).......................... 52.215-24.................................. Subcontractor Cost or Pricing
Data.
*(I.49).......................... 52.215-25.................................. Subcontractor Cost or Pricing
Data-Modifications.
*(I.50).......................... 52.215-27.................................. Termination of Defined Benefit
Pension Plans. (Except
educational institutions.)
*(I.51).......................... 52.215-31.................................. Waiver of Facilities Capital
Cost of Money. (Except
educational institutions.)
*(I.52).......................... 52.215-39.................................. Reversion or Adjustment of Plans
for Postretirement Benefits
Other than Pension (PRB).
*(I.53).......................... 52.216-8................................... Fixed Fee.
*(I.54).......................... 52.216-10.................................. Incentive Fee.
*(I.55).......................... 52.216-11.................................. Cost Contract--No Fee.
*(I.56).......................... 52.216-11.................................. Cost Contract--No Fee-Alternate
I.
*(I.57).......................... 52.216-12.................................. Cost-Sharing Contract--No Fee.
*(I.58).......................... 52.216-12.................................. Cost-Sharing Contract--No Fee-
Alternate I.
*(I.59).......................... 52.216-15.................................. Predetermined Indirect Cost
Rates.
*(I.59A)......................... 252.216-7002............................... Alternate. (For educational
institutions only.)
*(I.60).......................... 52.219-6................................... Notice of Total Small Business
Set-Aside.
*(I.61).......................... 52.219-6................................... Notice of Total Small Business
Set-Aside--Alternate I.
(I.63)........................... Reserved...................................
*(I.64).......................... 52.219-14.................................. Limitations on Subcontracting.
*(I.65).......................... 52.219-16.................................. Liquidated Damages--Small
Business Subcontracting Plan.
(I.66)........................... Reserved...................................
*(I.67).......................... 52.222-1................................... Notice to the Government of
Labor Disputes.
*(I.68).......................... 52.222-2................................... Payment for Overtime Premiums.
*(I.69).......................... 52.222-28.................................. Equal Opportunity Preaward
Clearance of Subcontracts.
*(I.70).......................... 52.223-2................................... Clean Air and Water.
*(I.71).......................... 52.223-3................................... Hazardous Material
Identification and Material
Safety Data.
*(I.72).......................... 52.223-7................................... Notice of Radioactive Materials
(21 Days).
*(I.73).......................... 52.226-1................................... Utilization of Indian
Organizations and Indiane-Owned
Economic Enterprises.
*(I.74).......................... 52.227-10.................................. Filing of Patent Applications--
Classified Subject Matter.
*(I.75).......................... 52.227-11.................................. Patent Rights--Retention by the
Contractor (Short Form).
*(I.76).......................... 52.227-12.................................. Patent Rights--Retention by the
Contractor (Long Form).
*(I.77).......................... 52.227-13.................................. Patent Rights--Acquisition by
the Government.
*(I.78).......................... 52.228-7................................... Insurance--Liability to Third
Persons--Alternate I.
*(I.79).......................... 52.228-7................................... Insurance--Liability to Third
Persons--Alternate II.
*(I.80).......................... 52.229-8................................... Taxes--Foreign Cost-
Reimbursement Contracts.
*(I.81).......................... 52.229-10.................................. State of New Mexico Gross
Receipts and Compensating Tax.
*(I.82).......................... 52.230-2................................... Cost Accounting Standards.
(Except if exempted.)
*(I.83).......................... 52.230-3................................... Disclosure and Consistency of
Cost Accounting Practices.
(Except if exempted.)
*(I.84).......................... 52.230-5................................... Administration of Cost
Accounting Standards. (Except
educational institutions.)
*(I.85).......................... 52.232-17.................................. Interest.
*(I.86).......................... 52.232-20.................................. Limitation of Cost.
[[Page 7746]]
*(I.87).......................... 52.232-22.................................. Limitation of Funds.
*(I.88).......................... 52.232-23.................................. Assignment of Claims--Alternate
I.
*(I.89).......................... 52.233-1................................... Disputes--Alternate I.
*(I.90).......................... 52.237-2................................... Protection of Government
Buildings, Equipment and
Vegetation.
*(I.91).......................... 52.242-10.................................. F.O.B. Origin-Government Bills
of Lading or Prepaid Postage.
*(I.92).......................... 52.242-11.................................. F.O.B. Origin-Government Bills
of Lading or Indicia Mail.
*(I.93).......................... 52.242-12.................................. Report of Shipment (REPSHIP).
*(I.94).......................... 52.243-2................................... Changes--Cost-Reimbursement-
Alternate V.
*(I.95).......................... 52.243-6................................... Change Order Accounting.
*(I.96).......................... 52.243-7................................... Notification of Changes (30
Calendar Days).
*(I.97).......................... 52.245-5................................... Government Property (Cost-
Reimbursement, Time-and-
Material, or Labor-Hour
Contracts).
*(I.98).......................... 52.245-5................................... Government Property (Cost-
Reimbursement, Time-and-
Material, or Labor-Hour
Contracts-Alternate I. (For
educational institutions and
nonprofit organizations.)
*(I.99).......................... 52.245-19.................................. Government Property Furnished
``As Is''.
*(I.100)......................... 52.246-23.................................. Limitation of Liability.
*(I.101)......................... 52.246-24.................................. Limitation of Liability-High
Value Items.
*(I.102)......................... 52.246-24.................................. Limitation of Liability-High
Value Items-Alternate I.
*(I.103)......................... 52.246-25.................................. Limitation of Liability-
Services.
*(I.104)......................... 52.247-63.................................. Preference for U.S.-Flag Air
Carriers.
*(I.105)......................... 52.247-66.................................. Returnable Cylinder.
*(I.106)......................... 52.249-5................................... Termination for Convenience of
the Government (Educational and
Other Nonprofit Institutions).
*(I.107)......................... 52.249-6................................... Termination (Cost-
Reimbursement).
*(I.108)......................... 52.251-1................................... Government Supply Sources.
*(I.109)......................... 252.201-7000............................... Contracting Officer's
Representative.
*(I.110)......................... 252.203-7001............................... Special Prohibition on
Employment.
*(I.111)......................... Reserved...................................
*(I.112)......................... Reserved...................................
*(I.113)......................... 52.204-7003................................ Control of Government Personnel
Work Product.
*(I.114)......................... 252.209-7000............................... Acquisition from Subcontractors
Subject to On-Site Inspection
under the Intermediate-Range
Nuclear Forces (INF) Treaty.
*(I.115)......................... 252.225-7012............................... Preference for Certain Domestic
Commodities.
*(I.116)......................... 252.225-7031............................... Secondary Arab Boycott of
Israel.
*(I.117)......................... Reserved...................................
*(I.118)......................... Reserved...................................
*(I.119)......................... Reserved...................................
*(I.120)......................... 252.227-7030............................... Technical Data-Withholding of
Payment.
*(I.121)......................... 252.227-7037............................... Validation of Restrictive
Markings on Technical Data.
*(I.122)......................... 252.231-7000............................... Supplemental Cost Principles.
*(I.123)......................... 252.232-7006............................... Reduction or Suspension of
Contract Payments Upon Finding
of Fraud.
*(I.124)......................... 252.242-7000............................... Postaward Conference.
*(I.125)......................... Reserved...................................
*(I.126)......................... 252.247-7023............................... Transportation of Supplies by
Sea.
*(I.127)......................... 252.203-7000............................... Statutory Prohibition on
Compensation to Former
Department of Defense
Employees.
*(I.128)......................... 252.203-7002............................... Display of DoD Hotline Poster.
*(I.129)......................... 252.204-7000............................... Disclosure of Information.
*(I.130)......................... 252.204-7002............................... Payment for Subline Items Not
Separately Priced.
*(I.131)......................... 252.205-7000............................... Provision of Information to
Cooperative Agreement Holders.
*(I.132)......................... 252.215-7000............................... Pricing Adjustments.
*(I.133)......................... 252.215-7002............................... Cost Estimating System
Requirements.
*(I.134)......................... 252.219-7001............................... Notice of Partial Small Business
Set-Aside with Preferential
Consideration for Small
Disadvantaged Business
Concerns.
*(I.135)......................... 252.219-7002............................... Notice of Small Disadvantaged
Business Set-Aside.
*(I.136)......................... 252.219-7003............................... Small Business and Small
Disadvantaged Business
Subcontracting Plan (DoD
Contracts).
*(I.137)......................... 252.219-7004............................... Small Business and Small
Disadvantaged Business
Subcontracting Plan (Test
Program).
*(I.138)......................... 252.219-7005............................... Incentive for Subcontracting
with Small Businesses, Small
Disadvantaged Businesses,
Historically Black Colleges and
Universities and Minority
Institutions. (. . . To be
negotiated ________ %.)
*(I.139)......................... 252.219-7005............................... Incentive for Subcontracting
with Small Businesses, Small
Disadvantaged Businesses,
Historically Black Colleges and
Universities and Minority
Institutions-Alternate I. (. .
. To be negotiated ________ %.)
*(I.140)......................... 252.219-7006............................... Notice of Evaluation Preference
for Small Disadvantaged
Business Concerns.
*(I.141)......................... 252.223-7001............................... Hazard Warning Labels.
*(I.142)......................... 252.223-7002............................... Safety Precautions for
Ammunitions and Explosives.
*(I.143)......................... 252.223-7003............................... Change in Place of Performance-
Ammunition and Explosives.
*(I.144)......................... 252.223-7004............................... Drug-Free Work Force.
*(I.145)......................... 252.225-7014............................... Preference for Domestic
Specialty Metals.
*(I.146)......................... 252.225-7016............................... Restriction on Acquisition of
Antifriction Bearings.
*(I.147)......................... 252.225-7025............................... Foregin Source Restrictions.
*(I.148)......................... 252.225-7026............................... Reporting of Contract Outside
the United States.
*(I.149)......................... 252.225-7032............................... Waiver of United Kingdom Levies.
*(I.150)......................... 252.226-7000............................... Notice of Historically Black
College or University and
Minority Institution Set-Aside.
*(I.151)......................... 252.227-7026............................... Deferred Delivery of Technical
Data or Computer Software.
*(I.152)......................... 252.227-7027............................... Deferred Ordering of Technical
Data or Computer Software.
(I.153).......................... Reserved...................................
*(I.154)......................... 252.227-7034............................... Patent--Subcontracts.
[[Page 7747]]
*(I.155)......................... 252.227-7036............................... Certification of Technical Data
Conformity.
*(I.156)......................... 252.227-7039............................... Patents--Reporting of Subject
Inventions.
(I.157).......................... Reserved...................................
*(I.158)......................... 252.232-7000............................... Advance Payment Pool. (For
educational institutions and
nonprofit organizations.)
*(I.159)......................... 252.233-7000............................... Certification of Claims and
Requests for Adjustment or
Relief.
*(I.160)......................... 252.235-7002............................... Animal Welfare.
*(I.161)......................... 252.242-7002............................... Submission of Commercial Freight
Bills for Audit.
*(I.162)......................... 252.242-7003............................... Application for U.S. Government
Shipping Documentation/
Instructions.
*(I.163)......................... 252.242-7004............................... Material Management and
Accounting System.
*(I.164)......................... 252.245-7001............................... Reports of Government Property.
*(I.165)......................... 252.247-7024............................... Notification of Transportation
of Supplies by Sea.
*(I.166)......................... 252.249-7001............................... Notification of Substantial
Impact on Employment.
*(I.167)......................... 252.251-7000............................... Ordering From Government Supply
Sources.
*(I.168)......................... 252.223-7006............................... Prohibition on Disposal of Toxic
and Hazardous Materials.
*(I.169)......................... 252.249-7002............................... Notification of Program
Termination or Reduction.
(I.170).......................... 52.204-4................................... Printing/Copying Double-Sided on
Recycled Paper.
*(I.171)......................... 52.208-8................................... Helium Requirement Forecast and
Required Sources for Helium.
(I.172).......................... 52.215-2................................... Audit and Records--Negotiation.
*(I.173)......................... 52.215-2................................... Audit and Records--Negotiation,
Alternate II.
(I.174).......................... 52.215-40.................................. Notification of Ownership
Changes.
*(I.175)......................... 52.215-42.................................. Requirements for Cost or Pricing
Data or Information Other Than
Cost or Pricing Data--
Modifications.
*(I.176)......................... 52.215-42.................................. Requirements for Cost or Pricing
Data or Information Other Than
Cost or Pricing Data--
Modifications, Alternate II.
*(I.177)......................... 52.215-42.................................. Requirements for Cost or Pricing
Data or Information Other Than
Cost or Pricing Data--
Modifications, Alternate III.
(I.178)..............
FR Doc. 96-4480 Defense Federal Acquisition Regulation Supplement; Miscellaneous Amendments
............ 52.219-8................................... Utilization of Small, Small
Disadvantaged and Women-Owned
Small Business Concerns.
*(I.179)......................... 52.219-9................................... Small, Small Disadvantaged and
Women-Owned Small Business
Subcontracting Plan.
*(I.180)......................... 52.242-3................................... Penalties for Unallowable Costs.
(I.181).......................... 52.242-4................................... Certification of Indirect Costs.
(I.182).......................... 52.244-6................................... Subcontracts for Commercial
Items and Commercial
Components.
*(I.183)......................... 52.247-67.................................. Submission of Commercial
Transportation Bills to the
General Services Administration
for Audit.
(I.184).......................... 52.223-14.................................. Toxic Chemical Release
Reporting.
(I.185).......................... 252.235-7010............................... Acknowledgement of Support and
Disclaimer.
(I.186).......................... 252.235-7011............................... Final Scientific or Technical
Report.
*(I.187)......................... 252.227-7013............................... Rights in Technical Data--
Noncommercial Items.
*(I.188)......................... 252.227-7013............................... Rights in Technical Data--
Noncommercial Items, Alternate
I.
*(I.189)......................... 252.227-7014............................... Rights in Noncommercial Computer
Software and Noncommercial
Computer Software
Documentation.
*(I.190)......................... 252.227-7014............................... Rights in Nocommercial Computer
Software and Noncommercial
Computer Software
Documentation, Alternate I.
*(I.191)......................... 252.227-7015............................... Technical Data--Commercial
Items.
*(I.192)......................... 252.227-7016............................... Rights in Bid or Proposal
Information.
*(I.193)......................... 252.227-7018............................... Rights in Noncommercial
Technical Data and Computer
Software--Small Business
Innovation Research Program.
*(I.194)......................... 252.227-7018............................... Rights in Noncommercial
Technical Data and Computer
Software--Small Business
Innovation Research Program,
Alternate I.
*(I.195)......................... 252.227-7019............................... Validation of Asserted
Restrictions--Computer
Software.
*(I.196)......................... 252.227-7025............................... Limitations on the Use or
Disclosure of Government-
Furnished Information Marked
with Restrictive Legends.
*(I.197)......................... 252.209-7005............................... Military Recruiting on Campus
(For educational institutions
only.)
.
* * * * * * *
Part IV--Representations and Instructions
Section K. Representations, Certifications and Other Statements of Offerors or Quoters
The following solicitation provisions require representations, certifications or the submission of other
information by offerors. They are mandatory, and are included by reference. Full text copies of these provisions
are available from the Contracting Officer and must be completed and certified before contract award.
(K.1)............................ 52.203-4................................... Contingent Fee Representation
and Agreement.
(K.2)............................ 52.203-8................................... Requirement for Certificate of
Procurement Integrity-Alternate
I.
(K.3)............................ 52.203-11.................................. Certification and Disclosure
Regarding Payments to Influence
Certain Federal Transactions.
(K.4)............................ 52.204-3................................... Taxpayer Identification.
(K.5)............................ 52.209-5................................... Certification Regarding
Debarment, Suspension, Proposed
Debarment, and Other
Responsibility Matters.
(K.6)............................ 52.215-6................................... Type of Business Organization.
(K.7)............................ 52.215-11.................................. Authorized Negotiators.
(K.8)............................ 52.215-20.................................. Place of Performance.
(K.9)............................ 52.215-30.................................. Facilities Capital Cost of Money
(Except educational
institutions.)
(K.10)........................... Reserved...................................
(K.11)........................... Reserved...................................
(K.12)........................... Reserved...................................
(K.13)........................... 52.222-21.................................. Certification of Nonsegregated
Facilities.
(K.14)........................... 52.222-22.................................. Previous Contracts and
Compliance Reports.
(K.15)........................... 52.222-25.................................. Affirmative Action Compliance.
[[Page 7748]]
(K.16)........................... 52.223-1................................... Clean Air and Water
Certification.
(K.17)........................... 52.223-5................................... Certification Regarding a Drug-
Free Workplace.
(K.18)........................... 52.227-6................................... Royalty Information.
(K.19)........................... 52.230-1................................... Cost Accounting Standards
Notices and Certification.
(K.20)........................... Reserved...................................
(K.21)........................... 252.209-7002............................... Disclosure of Ownership or
Control by a Foreign
Government.
(K.22)........................... 252.219-7000............................... Small Disadvantaged Business
Concern Representation (DOD
Contracts).
(K.23)........................... Reserved...................................
(K.24)........................... Reserved...................................
(K.25)........................... 252.226-7001............................... Hostirically Black College or
University and Minority
Institution Certification.
(K.26)........................... Reserved...................................
(K.27)........................... 252.247-7022............................... Representation of Extent of
Transportation by Sea.
(K.28)........................... 52.204-5................................... Women-Owned Business.
(K.29)........................... 252.209-7.................................. Organizational Conflicts of
Interest Certificate--Marketing
Consultants.
(K.30)........................... 252.219-1.................................. Small Business Program
Representation.
(K.31)........................... 252.223-13................................. Certification of Toxic Chemical
Release Reporting.
(K.32)........................... 252.209-7001............................... Disclosure of Ownership or
Control by the Government of a
Terrorist Country.
(K.33)........................... 252.209-7003............................... Disclosure of Commercial
Transactions with the
Government of a Terrorist
Country.
(K.34)........................... 252.209-7004............................... Reporting of Commercial
Transactions with the
Government of a Terrorist
Country.
(K.35)........................... 252.227-7017............................... Identification and Assertion of
Use, Release, or Disclosure
Restrictions.
(K.36)........................... 252.227-7028............................... Technical Data or Computer
Software Previously Delivered
to the Government.
Section L. Instructions, Conditions, and Notices to Offerors or Quoters
(L.1)............................ 52.252-1................................... Solicitation Provisions
Incorporated by Reference.
(L.2)............................ Reserved...................................
(L.3)............................ 52.210-2................................... Availability of Specifications
and Standards Listed in the DoD
Index of Specifications and
Standards (DODISS) and
Descriptions Listed in DoD
5010.12-L (Deviation).
(L.4)............................ 52.215-5................................... Solicitation Definitions.
(L.5)............................ 52.215-7................................... Unnecessarily Elaborate
Proposals or Quotations.
(L.6)............................ 52.215-8................................... Amendments to Solicitations.
(L.7)............................ 52.215-9................................... Submission of Offers.
(L.8)............................ 52.215-10.................................. Late Submissions, Modifications,
and Withdrawals of Proposals.
(L.9)............................ 52.215-12.................................. Restriction on Disclosure and
Use of Data.
(L.10)........................... 52.215-13.................................. Preparation of Offers.
(L.11)........................... 52.215-14.................................. Explanation to Prospective
Offerors.
(L.12)........................... 52.215-15.................................. Failure to Submit Offer.
(L.13)........................... 52.215-16.................................. Contract Award.
(L.14)........................... Reserved...................................
(L.15)........................... 52.216-1................................... Type of Contract (See
235.7006(d)(B.1)).
(L.16)........................... 52.222-24.................................. Preaward On-Site Equal
Opportunity Compliance Review.
(L.17)........................... 52.228-6................................... Insurance-Immunity from Tort
Liability.
(L.18)........................... 52.233-2................................... Service of Protest (See
235.7006(d)(A.1)(xvii)).
(L.19)........................... 52.237-1................................... Site Visit.
(L.20)........................... 52.252-5................................... Authorized Deviations in
Provisions.
(L.21)........................... 252.204-7001............................... Commercial and Government Entity
(CAGE) Code Reporting.
(L.22)........................... Reserved...................................
(L.23)........................... 52.215-16.................................. Contract Award--Alternate II.
*(L.24).......................... 52.215-41.................................. Requirements for Cost or Pricing
Data or Information Other than
Cost or Pricing Data.
*(L.25).......................... 52.215-41.................................. Requirements for Cost or Pricing
Data or Information Other than
Cost or Pricing Data, Alternate
I.
*(L.26).......................... 52.215-41.................................. Requirements for Cost or Pricing
Data or Information Other than
Cost or Pricing Data, Alternate
II.
*(L.27).......................... 52.215-41.................................. Requirements for Cost or Pricing
Data or Information Other than
Cost or Pricing Data, Alternate
III.
*(L.28).......................... 52.215-41.................................. Requirements for Cost or Pricing
Data or Information Other than
Cost or Pricing Data, Alternate
IV.
(L.29 through L.100) Reserved..................................................................................
(L.101) Government-Furnished Property.
No material, labor, or facilities will be furnished by the Government unless provided for in the solicitation.
(L.102) Proposal Preparation and Submission Instructions........................................................
[[Page 7749]]
(i) Page limitation, format.
(A) A proposal shall be prepared in separate volumes with the
page limit and number of copies specified below. The table of
contents and tabs are exempt from the page limits. No cross-
referencing between volumes for essential information is permitted
except where specifically set forth herein. The following volumes of
material will be submitted:
------------------------------------------------------------------------
Maximum
Title Copies page
limits
------------------------------------------------------------------------
Cost........................... As specified in solicitation *50
summary.
Technical...................... As specified in solicitation 100
summary.
------------------------------------------------------------------------
*The 50-page cost proposal is a goal not a limit. The Contractor may use
additional pages if necessary to comply with public law.
(B) Any technical proposal pages submitted which exceed the page
limitations set forth above will not be read or evaluated. Proposal
pages failing to meet paragraph D format will not be read or
evaluated.
(C) No program cost data or cross-reference to the cost proposal
will be included in any other volume.
(D) Format of the above proposal volumes shall be as follows:
(1) Proposals will be prepared on 8\1/2\ x 11 inch paper except
for foldouts used for charts, tables, or diagrams, which may not
exceed 11 x 17 inches. Foldouts will not be used for text. Pages
will have a one inch margin.
(2) A page is defined as one face of a sheet of paper containing
information. Two pages may be printed on one sheet.
(3) Type size will be no smaller than 10 point character height
(vertical size) and no more than an average 12 characters per inch.
Use of type-setting techniques to reduce type size below 10 points
or to increase characters beyond 12 per inch is not permitted. Such
techniques are construed as a deliberate attempt to circumvent the
intent of page limitations set forth above.
(4) Proposal must lie flat when open, elaborate binding is not
desirable.
(5) No models, mockups or video tapes will be accepted.
(6) Technical proposals will be prepared in the same sequence as
the statement of work.
(ii) Content.
All proposals must be complete and respond directly to the
requirements of the solicitation. The factors and subfactors listed
in Section M of the solicitation shall be addressed. Cost and
supporting data shall be included only in the cost volume. All other
information shall be included in the technical volume.
* * * * *
PART 236--CONSTRUCTION AND ARCHITECT-ENGINEER CONTRACTS
36. Section 236.201 is amended by revising paragraph (a) to read
as follows:
236.201 Evaluation of contractor performance.
(a) Preparation of performance evaluation reports. Use DD Form
2626, Performance Evaluation (Construction), instead of SF 1420.
* * * * *
37. Section 236.204 is added to read as follows:
236.204 Disclosure of the magnitude of construction projects.
Additional price ranges are--
(i) Between $10,000,000 and $25,000,000;
(ii) Between $25,000,000 and $100,000,000;
(iii) Between $100,000,000 and $250,000,000;
(iv) Between $250,000,000 and $500,000,000; and
(v) Over $500,000,000.
38. Section 236.271 is revised to read as follows:
236.271 Cost-plus-fixed-fee contracts.
Annual military construction appropriations acts restrict the use
of cost-plus-fixed-fee contracts (see 216.306(c)).
39. Section 236.604 is amended by adding paragraph (a) introductory
text to read as follows:
236.604 Performance evaluation.
(a) Preparation of performance reports. Use DD Form 2631,
Performance Evaluation (Architect-Engineer), instead of SF 1421.
(2) * * *
* * * * *
PART 242--CONTRACT ADMINISTRATION
40. Section 242.203 is amended by removing at the end of paragraph
(a)(i)(P) the word ``and''; by removing at the end of paragraph
(a)(i)(Q) the period and adding a semicolon and the word ``and''; by
revising paragraph (a)(ii); by removing paragraph (a)(iii); and by
redesignating paragraphs (a)(iv) and (a)(v) as (a)(iii) and (a)(iv)
respectively. The revision reads as follows:
242.203 Retention of contract administration.
(a)(i) * * *
(ii) Contract administration functions for base, post, camp, and
station contracts on a military installation are normally the
responsibility of the installation or tenant commander. However, the
Defense Contract Management Command (DCMC) shall, upon request of the
military department, and subject to prior agreement, perform contract
administration services on a military installation.
* * * * *
PART 246--QUALITY ASSURANCE
41. Section 246.770-2 is amended by redesignating paragraphs (b)
and (c) as paragraphs (c) and (d) respectively; by adding a new
paragraph (b); and by revising the newly designated paragraph (c) to
read as follows:
246.770-2 Policy.
(a) * * *
(b) Contracting officers and program managers shall consider the
following when developing and negotiating weapon system warranty
provisions:
(1) Warranties may not be appropriate in all situations, and a
waiver should be sought if a warranty would not be cost-effective or
would otherwise be inconsistent with the national defense. In drafting
warranty provisions, the drafters must ensure they understand the
planned operational, maintenance, and supply concepts of the weapon
system to be fielded, and must structure a warranty that matches those
concepts. A warranty plan should be prepared in consonance with
development of the warranty provision early in the weapon system's life
cycle. The plan should contain program warranty strategy, terms of the
warranty, administration and enforcement requirements, and should be
coordinated with the user and support activities.
(2) A cost/benefit analysis must be accomplished in support of each
warranty (see 246.770-7). The cost/benefit analysis compares all costs
associated with the warranty to the expected benefits. An estimate
shall be made of the likelihood of defects and the estimated cost of
correcting such defects. Also, if substantive changes are required to
the planned operational, maintenance, or supply concepts, any increased
costs should be weighed against the expected benefits in deciding
whether a warranty is cost-effective.
(3) The Warranty Guidebook prepared by the Defense Systems
Management College, Fort Belvoir, VA 22060-5426, is a valuable
reference that can assist in the development, negotiation, and
administration of an effective weapon system warranty.
(c) Contracting officers may require warranties that provide
greater coverage and remedies than specified in paragraph (a) of this
subsection.
* * * * *
[[Page 7750]]
42. Section 246.770-8 is amended by revising the introductory text
of paragraph (a); by removing paragraph (b)(2); by redesignating
paragraph (b)(3) as paragraph (b)(2), and by revising the introductory
text of paragraphs (c) and (c)(2). The revised text reads as follows:
246.770-8 Waiver and notification procedures.
(a) The Secretary of Defense has delegated waiver authority within
the limits specified in 10 U.S.C. 2403. The waiving authority for the
defense agencies is the Under Secretary of Defense (Acquisition and
Technology). Submit defense agency waiver requests to the Director,
Defense Procurement, for processing. The waiving authority for the
military departments is the Secretary of the department with authority
to redelegate no lower than an Assistant Secretary. The waiving
authority may waive one or more of the weapon system warranties
required by 246.770-2 if--
* * * * *
(c) Departments and agencies shall issue procedures for processing
waivers and notifications to Congress.
(1) * * *
(2) Notifications shall include--
* * * * *
PART 252--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
43. Section 252.209-7005 is amended by revising the clause date to
read ``(FEB 1996)''; and by revising paragraph (b) to read as follows:
252.209-7005 Military recruiting on campus.
* * * * *
(b) General. An institution of higher education that has been
determined, using procedures established by the Secretary of Defense
at 32 CFR part 216: (1) to have a policy of denying, or (2) to
effectively prevent the Secretary of Defense from obtaining for
military recruiting purposes, entry to such institution's campuses,
access to students on those campuses, or access to directory
information pertaining to its students, is ineligible for contract
award and payments under existing contracts. In addition, the
Government shall terminate this contract for the Contractor's
material failure to comply with the terms and conditions of award.
* * * * *
44. Section 252.217-7027 is revised to read as follows:
252.217-7027 Contract Definitization.
As prescribed in 217.7406(b), use the following clause:
CONTRACT DEFINITIZATION (FEB 1996)
(a) A ______(insert specific type of contract action) is
contemplated. The Contractor agrees to begin promptly negotiating
with the Contracting Officer the terms of a definitive contract that
will include (1) all clauses required by the Federal Acquisition
Regulation (FAR) on the date of execution of the underfinitized
contract action, (2) all clauses required by law on the date of
execution of the definitive contract action, and (3) any other
mutually agreeable clauses, terms, and conditions. The Contractor
agrees to submit a ______(insert type of proposal; e.g., fixed-price
or cost-and-fee) proposal and cost or pricing data supporting its
proposal.
(b) The schedule for definitizing this contract is as follows
(insert target date for definitization of the contract action and
dates for submission of proposed, beginning of negotiations, and, if
appropriate, submission of the make-or-buy and subcontracting plans
and cost or pricing data).
----------------------------------------------------------------------
----------------------------------------------------------------------
----------------------------------------------------------------------
----------------------------------------------------------------------
(c) If agreement on a definitive contract action to supersede
this undefinitized contract action is not reached by the target date
in paragraph (b) of this clause, or within any extension of it
granted by the Contracting Officer, the Contracting Officer may,
with the approval of the head of the contracting activity, determine
a reasonable price or fee in accordance with subpart 15.8 and part
31 of the FAR, subject to Contractor appeal as provided in the
Disputes clause. In any event, the Contractor shall proceed with
completion of the contract, subject only to the Limitation of
Government Liability clause.
(1) After the Contracting Officer's determination of price or
fee, the contract shall be governed by--
(i) All clauses required by the FAR on the date of execution of
this underfinitized contract action for either fixed-price or cost-
reimbursement contracts, as determined by the Contracting Officer
under this paragraph (c);
(ii) All clauses required by law as of the date of the
Contracting Officer's determination; and
(iii) Any other clauses, terms, and conditions mutually agreed
upon.
(2) To the extent consistent with paragraph (c)(1) of this
clause, all clauses, terms, and conditions included in this
undefinitized contract action shall continue in effect, except those
that by their nature apply only to an undefinitized contract action.
(d) The definitive contract resulting from this undefinitized
contract action will include a negotiated ____________________
(insert ``cost/price ceiling'' or ``firm-fixed price'') in no event
to exceed ____________________ (insert the not-to-exceed amount).
(End of clause)
45. Section 252.223-7007 is added to read as follows:
252.223-7007 Safeguarding Sensitive Conventional Arms, Ammunition, and
Explosives.
As prescribed in 223.7203, use the following clause:
Safeguarding Sensitive Conventional Arms, Ammunition, and Explosives
(Feb. 1996)
(a) Definition.
``Arms, ammunition, and explosives (AA&E),'' as used in this
clause, means those items within the scope (chapter 1, paragraph B)
of DoD 5100.76-M, Physical Security of Sensitive Conventional Arms,
Ammunition, and Explosives.
(b) The requirements of DoD 5100.76-M apply to the following
items of AA&E being developed, produced, manufactured, or purchased
for the Government, or provided to the Contractor as Government-
furnished property under this contract:
------------------------------------------------------------------------
National
Nomenclature stock Sensitivity
number category
------------------------------------------------------------------------
------------------------------------------------------------------------
(c) The Contractor shall comply with the requirements of DoD
5100.76-M, as specified in the statement of work. The edition of DoD
5100.76-M in effect on the date of issuance of the solicitation for
this contract shall apply.
(d) The Contractor shall allow representatives of the Defense
Investigative Service (DIS), and representatives of other
appropriate offices of the Government, access at all reasonable
times into its facilities and those of its subcontractors, for the
purpose of performing surveys, inspections, and investigations
necessary to review compliance with the physical security standards
applicable to this contract.
(e) The Contractor shall notify the cognizant DIS field office
of any subcontract involving AA&E within 10 days after award of the
subcontract.
(f) The Contractor shall ensure that the requirements of this
clause are included in all subcontracts, at every tier--
(1) For the development, production, manufacture, or purchase of
AA&E; or
(2) When AA&E will be provided to the subcontractor as
Government-furnished property.
(g) Nothing in this clause shall relieve the Contractor of its
responsibility for complying with applicable Federal, state, and
local laws, ordinances, codes, and regulations (including
requirements for obtaining licenses and permits) in connection with
the performance of this contract.
(End of clause)
252.228-7006 [Removed and Reserved]
46. Section 252.228-7006 is removed and reserved.
252.232-7004 [Amended]
47. Section 252.232-7004 is amended by revising the clause date to
read ``(FEB 1996)'' and by revising in paragraph (a), in the
parenthetical phrase, the word
[[Page 7751]]
``excepting'' to read ``including'' and the phrase ``Undefinitized
Actions'' to read ``Undefinitized Contract Actions.''
PART 253--FORMS
48. Section 253.213-70 is amended by revising paragraph (e)(14) to
read as follows:
253.213-70-- Instructions for completion of DD Form 1155
* * * * *
(e) * * *
14 SHIP TO--
If a single ship-to point applies to the entire order, enter the
name and address of that point in this block and a DODAAD code in
the code block. For FMS shipments, enter the MAPAD code in the code
block and an instruction for the contractor to contact the
transportation office of the administering activity to obtain a name
and shipping address. Enter multiple ship-to points in the schedule
and mark this block, ``See Schedule.''
* * * * *
49. At the end of Part 253 ``253.303-2626, Performance Evaluation
(construction)'' and ``253.303-2631, Performance Evaluation (Architect-
Engineer)'' are added to the DFARS Form List.
Appendix G to Chapter 2 [Amended]
50-51. Appendix G to Chapter 2, Part 3, Navy Activity Address
Numbers, is amended by revising activity address numbers N00019,
N00023, N00024, N00030, N00039, N00104, N00383, and by adding activity
address number N00391 to read as follows:
Appendix G--Activity Address Numbers
* * * * *
PART 3--NAVY ACTIVITY ADDRESS NUMBERS
* * * * *
N00019--Naval Air Systems Command
EF*, GU*--1421 Jefferson Davis Highway
EF0-9--Arlington, VA 22243-5120
* * * * *
N00023--Naval Supply Systems Command
4J*, L5*--1931 Jefferson Davis Highway
4J0-9--Arlington, VA 22241-5360
N00024--Naval Sea Systems Command
EH*, U0*--2531 Jefferson Davis Highway
EH0-9--Arlington, VA 22242-5160
* * * * *
N00030--Strategic Systems Programs
EK*--1931 Jefferson Davis Highway
EK0-9--Arlington, VA 22241-5362
* * * * *
N00039--Space and Naval Warfare Systems Command
NS*--2451 Crystal Drive
NS0-9--Arlington, VA 22245-5200
* * * * *
N00104--Naval Inventory Control Point
EP--5450 Carlisle Pike
EQ--Box 2020, Mechanicsburg, PA 17055-0788
* * * * *
N00383--Naval Inventory Control Point
GB--700 Robbins Avenue
GC--Philadelphia, PA 19111-5098
* * * * *
N00391--Naval Inventory Control Point
EP, EQ,--700 Robbins Avenue
GB, GC--Philadelphia, PA 19111-5098
* * * * *
52. Appendix G to Chapter 2, Part 4, Marine Corps Activity Address
Numbers, is amended by revising activity number M67854 to read as
follows:
PART 4--MARINE CORPS ACTIVITY ADDRESS NUMBERS
* * * * *
M67854--Marine Corps Systems Command
(MAJ00027)--2033 Barnett Ave, Suite 315
MU6-9--Quantico, VA 22134-5010
* * * * *
53. Appendix G, Chapter 2, Part 10, Miscellaneous Defense
Activities Activity Address Numbers, is amended by revising activity
number MDA946 to read as follows:
PART 10--MISCELLANEOUS DEFENSE ACTIVITIES ACTIVITY ADDRESS NUMBERS
* * * * *
MDA946--Real Estate and Facilities Directorate, Washington headquarters
Services, 1155 Defense Pentagon, room 3C345, Washington, DC 20301-1155
* * * * *
[FR Doc. 96-4480 Filed 2-28-96; 8:45 am]
BILLING CODE 5000-04-M
Complete official Federal Register PDF
FR Doc. 96-4441 National Emission Standards for Hazardous Air Pollutants for Source Categories: Organic Hazardous Air Pollutants From the Synthetic Organic Chemical Manufacturing Industry and Other Processes Subject to the Negotiated Regulation for Equipment Leaks
[Federal Register Volume 61, Number 41 (Thursday, February 29, 1996)]
[Rules and Regulations]
[Pages 7716-7718]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-4441]
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 63
[AD-FRL-5431-2]
RIN 2060-AC19
National Emission Standards for Hazardous Air Pollutants for
Source Categories: Organic Hazardous Air Pollutants From the Synthetic
Organic Chemical Manufacturing Industry and Other Processes Subject to
the Negotiated Regulation for Equipment Leaks
AGENCY: Environmental Protection Agency (EPA).
ACTION: Direct final rule.
-----------------------------------------------------------------------
SUMMARY: On April 10, 1995, the EPA amended certain portions of the
``National Emission Standards for Hazardous Air Pollutants for Source
Categories: Organic Hazardous Air Pollutants from the Synthetic Organic
Chemical Manufacturing Industry and Other Processes Subject to the
Negotiated Regulation for Equipment Leaks.'' This rule is commonly
known as the Hazardous Organic NESHAP or the HON. In that action, the
EPA revised the rule to provide a deferral of HON requirements for
source owners or operators who wish to make an area source
certification and to establish minimum documentation requirements. This
action revises the date for submittal of those area source
certifications and clarifies the wording of the documentation
requirements. This action is being taken because the EPA has learned
that sufficient time was not provided to prepare the certifications and
that some confusion exists regarding the required documentation.
This action also extends the April 22, 1996 deadline for submittal
of implementation plans for emission points not included in an
emissions average to December 31, 1996. The deadline for submitting
these plans is being extended because the EPA anticipates making
further revisions to the rule in the near future that could affect the
contents of the implementation plan. In light of this, the EPA thinks
it is appropriate to delay this report until there is greater certainty
regarding the compliance requirements.
DATES: The direct final rule will be effective April 19, 1996, unless
significant, adverse comments are received by April 1, 1996. If
significant, adverse comments are timely received on any portion of the
direct final rule, that portion of the direct final rule will be
withdrawn.
ADDRESSES: Comments should be submitted (in duplicate, if possible) to:
Air and Radiation Docket and Information Center (6102), Attention
Docket Number A-90-20, Room M-1500, U.S. Environmental Protection
Agency, 401 M Street SW., Washington, DC 20460.
FOR FURTHER INFORMATION CONTACT: Dr. Janet S. Meyer, Emission Standards
Division (MD-13), U.S. Environmental Protection Agency, Office of Air
Quality Planning and Standards, Research Triangle Park, North Carolina
27711, telephone number (919) 541-5254.
SUPPLEMENTARY INFORMATION: If significant adverse comments are timely
received on any portion of this direct final rule, that portion of the
direct final rule will be withdrawn and all such comments will be
addressed in a subsequent final rule based on the proposed rule
contained in the Proposed Rules Section of this Federal Register that
is identical to this direct final rule. If no significant adverse
comments are timely received on this direct final rule, then the direct
final rule will become effective April 19, 1996, and no further action
is contemplated on the parallel proposal published today.
I. Background and Summary of Changes to Rule
On April 22, 1994 (59 FR 19402), and June 6, 1994 (59 FR 29196),
the EPA promulgated in the Federal Register National Emission Standards
for Hazardous Air Pollutants (NESHAP) for
[[Page 7717]]
the Synthetic Organic Chemical Manufacturing Industry (SOCMI), and for
several other processes subject to the equipment leaks portion of the
rule. These regulations were promulgated as subparts F, G, H, and I in
40 CFR Part 63, and are commonly referred to as the hazardous organic
NESHAP, or the HON. Since the April 22, 1994 notice, there have been
several amendments to clarify various aspects of the rule. Readers
should see the following Federal Register notices for more information:
September 20, 1994 (59 FR 48175); October 24, 1994 (59 FR 53359);
October 28, 1994 (59 FR 54131); January 27, 1995 (60 FR 5321); April
10, 1995 (60 FR 18020); April 10, 1995 (60 FR 18026); and December 12,
1995 (60 FR 63624).
A. Area Source Certification
On April 10, 1995, new paragraphs were added to Sec. 63.100(b) and
Sec. 63.103(f) of subpart F and Sec. 63.190(b) of subpart I to provide
procedures to certify and document that a source is operating below the
thresholds for a major source. Those provisions specified that the
certifications were to be submitted no later than May 10, 1995. This
date was 30 days after the date of publication of the notice and
consistent with the proposed requirement. Since the amendment was
issued, the EPA has learned that there are a number of potential area
source facilities whose owners learned of this amendment for the first
time after May 10, 1995. The EPA believes that, in view of these
circumstances, it is appropriate to provide additional time for
submittal of the certifications. Therefore, this document revises the
date for submittal of those certifications until May 14, 1996.
The EPA has also learned that there are questions regarding the
requirements for documentation that actual emissions are below the
major source threshold. To address this confusion, the first sentence
in Sec. 63.100(b)(4)(i)(B) is being revised to clarify that emissions
are to be estimated for maximum expected operating conditions for the
facility. This revision is necessary to make the rule consistent with
the EPA's intent to allow sources with actual annual emissions less
than major source thresholds the additional time necessary to obtain
federally enforceable limits (59 FR 53393 and 60 FR 18021). The same
revision is also being made to Sec. 63.190(b)(7)(i)(B) of subpart I.
B. Date for Submission of Implementation Plan
The EPA is extending the April 22, 1996 deadline for submittal of
implementation plans for emission points not included in an emissions
average to December 31, 1996. The deadline for submitting these plans
is being extended because there are uncertainties regarding the
applicability of the rule to certain sources and there are
uncertainties regarding the requirements of certain provisions. These
uncertainties are caused by the existence of pending litigation on the
final rule, the need to review and respond to several recent changes to
the final rule, and the possibility of further changes being made to
the final rule in the near future.
Since the April 22, 1994 notice, there have been several amendments
to clarify various aspects of the rule. The most recent of these
notices was published on December 12, 1995. On April 10, 1995 (60 FR
18071), the EPA proposed to remove three compounds from the list of
chemical production processes regulated by the rule. The EPA
anticipates issuing a final notice to complete that rulemaking in the
near future. Additionally, the EPA anticipates that it is likely to
propose at least one more set of additional changes to the rule in the
near future. Since these changes may affect compliance planning for
some sources, it is appropriate to delay this report until there is
greater certainty regarding the compliance requirements.
II. Administrative
A. Paperwork Reduction Act
The information collection requirements of the previously
promulgated NESHAP were submitted to and approved by the Office of
Management and Budget (OMB). A copy of this Information Collection
Request (ICR) document (OMB control number 1414.02) may be obtained
from Sandy Farmer, Information Policy Branch (PM-223Y); U.S.
Environmental Protection Agency; 401 M Street, SW; Washington, DC 20460
or by calling (202) 260-2740.
Today's changes to the NESHAP should have no impact on the
information collection burden estimates made previously. The change to
the area source certification merely revises the date for submission of
the certification and clarifies the documentation requirements. The
change to the implementation plan requirements merely extends the date
for submission of plans from existing sources. These changes do not
impose new requirements. Consequently, the ICR has not been revised.
B. Executive Order 12866 Review
Under Executive Order (E.O.) 12866, the EPA must determine whether
the proposed regulatory action is ``not significant'' and therefore,
subject to the Office of Management and Budget (OMB) review and the
requirements of the Executive Order. The Order defines ``significant''
regulatory action as one that is likely to lead to a rule that may:
(1) Have an annual effect on the economy of $100 million or more or
adversely affect in a material way the economy, a sector of the
economy, productivity, competition, jobs, the environment, public
health or safety in State, local, or tribal governments or communities;
(2) Create a serious inconsistency or otherwise interfere with an
action taken or planned by another agency;
(3) Materially alter the budgetary impact of entitlements, grants,
user fees or loan programs or the rights and obligations of recipients
thereof; or
(4) Raise novel legal or policy issues arising out of legal
mandates, the President's priorities, or the principles set forth in
the Executive Order.
The HON rule promulgated on April 22, 1994 was considered
``significant'' under Executive Order 12866 and a regulatory impact
analysis (RIA) was prepared. The amendments issued today clarify the
rule and do not add any additional control requirements. Therefore,
this regulatory action is considered not significant.
C. Regulatory Flexibility Act
The Regulatory Flexibility Act of 1980 requires the identification
of potentially adverse impacts of Federal regulations upon small
business entities. The Act specifically requires the completion of a
Regulatory Flexibility Analysis in those instances where small business
impacts are possible. Pursuant to section 605(b) of the Regulatory
Flexibility Act, 5 U.S.C. 605(b), the Administrator certifies that this
rule will not have a significant economic impact on a substantial
number of small entities. Because this rulemaking imposes no adverse
economic impacts, a Regulatory Flexibility Analysis has not been
prepared.
D. Unfunded Mandates
Under Section 202 of the Unfunded Mandates Reform Act of 1995
(``Unfunded Mandates Act''), 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
[[Page 7718]]
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 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. Therefore, the requirements of the
Unfunded Mandates Act do not apply to this action.
List of Subjects in 40 CFR Part 63
Environmental protection, Air pollution control, Hazardous
substances, Reporting and recordkeeping requirements.
Dated: February 21, 1996.
Carol M. Browner,
Administrator.
For the reasons set out in the preamble, title 40, chapter I, part
63, subparts F, G, and I, of the Code of Federal Regulations are
amended as follows:
PART 63--[AMENDED]
1. The authority citation for part 63 continues to read as follows:
Authority: 42 U.S.C. 7401 et seq.
Subpart F--National Emission Standards for Organic Hazardous Air
Pollutants From the Synthetic Organic Chemical Manufacturing
Industry
2. Section 63.100 is amended by revising paragraph (b)(4)
introductory text and the first sentence in paragraph (b)(4)(i)(B) to
read as follows:
Sec. 63.100 Applicability and designation of source.
* * * * *
(b) * * *
(4) The owner or operator of a chemical manufacturing processing
unit is exempt from all requirements of subparts F, G, and H of this
part until not later than April 22, 1997 if the owner or operator
certifies, in a notification to the appropriate EPA Regional Office,
not later than May 14, 1996, that the plant site at which the chemical
manufacturing processing unit is located emits, and will continue to
emit, during any 12-month period, less than 10 tons per year of any
individual hazardous air pollutants (HAP), and less than 25 tons per
year of any combination of HAP.
(i) * * *
(B) The owner or operator shall calculate the amount of annual HAP
emissions released from each emission point at the plant site, using
acceptable measurement or estimating techniques for maximum expected
operating conditions at the plant site. * * *
* * * * *
Subpart G--National Emission Standards for Organic Hazardous Air
Pollutants From the Synthetic Organic Chemical Manufacturing
Industry for Process Vents, Storage Vessels, Transfer Operations,
and Wastewater
3. Section 63.151 is amended by revising paragraph (c)(1)(ii) to
read as follows:
Sec. 63.151 Initial notification and implementation plan.
* * * * *
(c) * * *
(1) * * *
(ii) Each owner or operator of an existing source subject to this
subpart who elects to comply with Sec. 63.112 of this subpart by
complying with the provisions of Secs. 63.113 to 63.148 of this
subpart, rather than emissions averaging, for any emission points, and
who has not submitted an operating permit application accompanied by
the information specified in Sec. 63.152(e) by December 31,1996, shall
develop an Implementation Plan. For an existing source, the
Implementation Plan for those emission points that are not to be
included in an emissions average shall be submitted to the
Administrator no later than December 31, 1996.
* * * * *
Subpart I--National Emission Standards for Organic Hazardous Air
Pollutants for Certain Processes Subject to the Negotiated
Regulation for Equipment Leaks
4. Section 63.190 is amended by revising paragraph (b)(7)
introductory text and the first sentence in paragraph (b)(7)(i)(B) to
read as follows:
Sec. 63.190 Applicability and designation of source.
* * * * *
(b) * * *
(7) The owner or operator of a plant site at which a process
specified in paragraphs (b)(1) through (b)(6) of this section is
located is exempt from all requirements of this subpart I until not
later than April 22, 1997 if the owner or operator certifies, in a
notification to the appropriate EPA Regional Office, not later than May
14, 1996, that the plant site at which the process is located emits,
and will continue to emit, during any 12-month period, less than 10
tons per year of any individual HAP, and less than 25 tons per year of
any combination of HAP.
(i) * * *
(B) The owner or operator shall calculate the amount of annual HAP
emissions released from each emission point at the plant site, using
acceptable measurement or estimating techniques for maximum expected
operating conditions at the plant site. * * *
* * * * *
[FR Doc. 96-4441 Filed 2-28-96; 8:45 am]
BILLING CODE 6560-50-P
Complete official Federal Register PDF
FR Doc. 96-4432 Reef Fish Fishery of the Gulf of Mexico; Revised 1996 Red Snapper Season
[Federal Register Volume 61, Number 41 (Thursday, February 29, 1996)]
[Rules and Regulations]
[Pages 7751-7754]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-4432]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 641
[Docket No. 951221305-6038-02; I.D. 020296B]
Reef Fish Fishery of the Gulf of Mexico; Revised 1996 Red Snapper
Season
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Emergency interim rule.
-----------------------------------------------------------------------
SUMMARY: NMFS issues this emergency interim rule to suspend
implementation of the red snapper individual transferable quota (ITQ)
system for the Gulf of Mexico, previously scheduled to begin April 1,
1996, to make the entire 1996 commercial quota for red snapper
available to the fishery which opened February 1, 1996, and to extend
for the emergency period the red snapper trip limit and permit
endorsement system. The intended effect is to respond to an emergency
situation involving the commercial red snapper fishery by preventing
adverse social and economic impacts on fishery participants while
allowing a controlled harvest of fish for the 1996 season.
EFFECTIVE DATES: The amendments to Secs. 641.7 paragraphs (nn) through
(pp) and 641.31 through 641.33 are effective February 23, 1996, through
May 29, 1996.
The removal of Secs. 641.34 and 641.7 paragraph (qq) is effective
February 23, 1996.
The April 1, 1996, effective date for the amendments to part 641
listed in amendatory instruction 2 are delayed indefinitely.
ADDRESSES: Copies of documents supporting this action, including an
environmental assessment, may be obtained from Robert Sadler, Southeast
Regional Office, NMFS, 9721 Executive Center Drive N., St. Petersburg,
FL 33702.
FOR FURTHER INFORMATION CONTACT: Robert Sadler, 813-570-5305.
SUPPLEMENTARY INFORMATION: The reef fish fishery of the Gulf of Mexico
is managed under the Fishery Management Plan for the Reef Fish
Resources of the Gulf of Mexico (FMP). The FMP was prepared by the Gulf
of Mexico Fishery Management Council (Council) and is implemented
through regulations at 50 CFR part 641 under the authority of the
Magnuson Fishery Conservation and Management Act (Magnuson Act).
Delayed Opening of the 1996 Commercial Red Snapper Fishery
Under the provisions of an emergency interim rule (61 FR 17,
January 2, 1996), requested by the Council and issued by NMFS, (1) the
opening of the 1996 red snapper commercial fishery was delayed from
January 1 until February 1, 1996; (2) an interim commercial quota of
1.00 million lb (0.45 million kg) was established for the period
February 1 through March 31, 1996; and (3) the red snapper trip limit
and vessel permit endorsement system was continued
[[Page 7752]]
through March 31, 1996. These measures were intended to allow a
controlled commercial fishery for red snapper during the Lenten season,
when demand for fish is high, prior to implementation of the ITQ system
on April 1, 1996. (The ITQ system was contained in Amendment 8 to the
FMP and was published as a final rule on November 29, 1995 (60 FR
61200). Some paragraphs in that final rule pertaining to the ITQ system
were recodified in the final rule to implement Amendment 11 (60 FR
64350, December 15, 1995). Accordingly, this emergency interim rule
contains references to both of those final rules.)
In its request for these emergency management measures, the Council
expressed its intent that should the ITQ system be disapproved by NMFS
or its implementation be delayed by Congressional action (e.g.,
proposed Congressional moratoriums on ITQ systems), then the commercial
fishery should remain open until the full annual commercial quota is
taken under the red snapper trip limit and endorsement system that was
in effect during 1995.
Delay in the Implementation of the ITQ System
Because of the furlough of NMFS personnel in late December 1995 and
early January 1996 and budget limitations under the continuing
resolution that provides operating funds for the Department of
Commerce, NMFS is unable to implement the red snapper ITQ system by
April 1, 1996. As a result of the furlough, NMFS was unable to process
fishermen's requests for appeals of NMFS' initial determinations
regarding historical captain status and red snapper landings records.
Final determinations through the appeals process are essential to
establish finally who will be initial shareholders in the ITQ system
and the amounts of their initial shares. In addition, NMFS concluded
that it would be unreasonable to expect red snapper fishermen to pursue
their appeals before the Council Appeals Board during February 1996
when the commercial red snapper fishery is open and fishermen are busy
with harvesting operations. Under the provisions of Amendment 8 and its
implementing rule, the appeals process must be completed before NMFS
can issue red snapper ITQ shares and coupons.
Period of Suspension
NMFS issues this emergency interim rule, effective initially for 90
days after its date of publication, as authorized by section 305(c) of
the Magnuson Act. Should NMFS and the Council agree, this emergency
interim rule may be extended for an additional period of 90 days. If
the commercial quota for red snapper, currently 3.06 million pounds
(1.39 million kg), has not been taken during the initial 90 days, such
agreement and extension are expected. Since the entire commercial quota
for 1996 is likely to have been taken under this emergency interim
rule, or extension thereof, the earliest date that the ITQ system could
begin operation is January 1, 1997 (beginning of a new fishing year),
unless the 1996 commercial quota is increased through a separate
regulatory action and the appeals process is completed.
Red Snapper Trip Limit and Endorsement System
This rule extends for the emergency period the management regime
for red snapper that was in effect for the 1995 fishing year and was
previously extended by the January 2 emergency rule. Specifically,
landings of red snapper are limited to 2,000 lb (907 kg) per trip or
day for vessels with red snapper endorsements on their reef fish
permits; other reef fish permitted vessels are limited to 200 lb (91
kg) per trip or day. These measures are intended to spread out harvest
over a longer period of time and avoid the negative social and economic
impacts and potentially dangerous fishing conditions that would result
from a derby fishery of very short duration. Monitoring of landings
under an uncontrolled derby fishery would be difficult, increasing the
likelihood that the quota would be exceeded. This might result in
adverse effects on the recovery of the overfished red snapper resource.
Red snapper permit endorsements that were in effect on December 31,
1995, have been reissued by NMFS for the 1996 fishing year.
Compliance with NMFS Guidelines for Emergency Rules
This emergency interim rule meets NMFS' policy guidelines for the
use of emergency rules, published on January 6, 1992 (57 FR 375). The
situation (1) results from recent, unforeseen events or recently
discovered circumstances; (2) presents a serious management problem;
and (3) realizes immediate benefits from the emergency interim rule
that outweigh the value of prior notice, opportunity for public
comment, and deliberative consideration expected under the normal
rulemaking process.
Recent, Unforeseen Events or Recently Discovered Circumstances
The furlough of NMFS personnel and curtailed agency operating funds
under temporary funding bills (``continuing resolutions''), and the
effects on NMFS' ability to carry out the provisions of Amendment 8 and
its implementing rule, were unforeseen. As a result of the furlough,
the Southeast Regional Office was unable to process the requests for
appeals of its initial determinations regarding historical captain
status and landings records in a timely manner. The appeals process
must be completed before NMFS can issue red snapper ITQ shares and
coupons.
Serious Management Problems in the Fishery
NMFS believes that this emergency interim rule is necessary to
address serious management problems with the fishery, which if
unaddressed, could cause significant adverse social and economic
impacts on fishery participants.
If the combined emergency actions of the immediate availability of
the entire 1996 red snapper commercial quota and the suspension of the
ITQ system are not taken, then the commercial fishery would have to be
closed for an indefinite period after the interim 1.00-million lb
(0.45-million kg) quota is harvested. Since this closure would extend
significantly beyond April 1, 1996, it would have severe negative
economic effects, particularly for commercial fishermen who had planned
to participate in the fishery under the ITQ program commencing April 1.
Making the entire 1996 red snapper commercial quota immediately
available for harvest under the trip limit and endorsement system has
the effect of returning the red snapper management regime for this year
to the regime that was in place from 1993 through 1995 under provisions
of the FMP. This regime released the entire annual commercial quota at
the start of the fishing season, which was timed to ensure that the
fishery was open during Lent. The fishery remained open, under the
vessel permit endorsement and trip limit program, until the quota was
caught (usually sometime in April of each year). This management
approach, while still presenting fishery problems intended to be
addressed through the ITQ system, was based on the Council's and NMFS'
determination that it offered greater social and economic benefits than
provided by a split season or by a less restrictive harvest rate. The
expected benefits of this emergency rule are the same as those intended
from the
[[Page 7753]]
previous management regime; they are described as follows.
Traditionally, consumer demand for fresh red snapper is
significantly higher during the Lenten season (February through March)
than the rest of the year. The result is that the prices to fishermen
for their catch are higher at this time than later in the year.
Consequently, gross revenues to fishermen from taking the remaining
commercial quota now are significantly higher (although difficult to
quantify) than if these fish were caught later this year. As such,
fishermen would suffer substantial economic loss if they were unable to
continue fishing during this early spring period.
A continuous commercial red snapper season in the Gulf in recent
years has avoided or minimized market disruptions in the supply of
fresh, high quality, fish. In the past, these market disruptions in the
supply of fresh fish have been shown to have negative effects on
fishermen's incomes. For example, without a steady supply of fresh
fish, dealers turn to cheaper, frozen imports to satisfy the consumer
demand; the result can include temporarily depressed prices and short-
term losses of market share for fresh fish until the dealers exhaust
their inventories of frozen product. Also, an unstable domestic supply
of red snapper usually results in wider fluctuations in ex-vessel
prices for the same quality of product.
Another benefit of a continuous season is minimizing the time and
economic costs to fishermen associated with their changing fisheries.
For example, if the red snapper fishery is opened, closed, and then
reopened, it would require additional effort and costs for vessel
owners to change fishing gear, related supplies, and crew each time
they entered or left the snapper fishery. Also, since the red snapper
fishery is considered more lucrative than most of the alternative
fisheries, fishermen would make every effort to reenter this fishery
when it opens, even after Lent. During a disrupted red snapper season,
there are added difficulties of finding and keeping experienced,
reliable crew. In summary, these additional costs/efforts required to
fish for red snapper during a disrupted season can be particularly
burdensome for a given vessel owner.
Finally, a discontinuous red snapper commercial fishery with a
reopening during late spring/early summer would require fishermen to
forego their normal deeper water fisheries during that time (e.g.,
tilefish, snowy grouper, and tuna). In order to make a livelihood, most
fishermen participate in several fisheries during the course of the
year, and accordingly follow long established seasonal patterns of
changing fisheries. The red snapper fishery is more readily prosecuted
in late winter/early spring because the fish are located in near-shore,
shallower water areas, where they are more concentrated than later in
the year. There are also distinct safety benefits of being able to fish
near shore during the bad weather that is common in winter and early
spring. Other fisheries, particularly the deep water grouper fishery,
are more readily prosecuted during late spring/early summer when
weather conditions are more consistent and relatively better. A split
commercial red snapper season during 1996 would disrupt these
traditional fishing patterns without any compensatory benefits.
Without the red snapper endorsement system, which includes vessel
trip limits, permitted vessels would have no restrictions on landing
levels. This would result in a derby fishery of very short duration.
Monitoring of landings under these conditions would be difficult,
increasing the likelihood that the quota would be exceeded. NMFS is
concerned that this would adversely impact stock recovery. In addition,
fishermen would suffer significant economic losses due to lower ex-
vessel prices, as occurred in fishing years before the endorsement and
trip limit provisions were implemented. To avoid these problems, this
emergency interim rule continues the trip limits, which will constrain
vessel landings to the commercial quota, provide for better prices to
fishermen, and increase the short-term economic yield in the fishery.
Immediate Benefits
The immediate benefits of the emergency interim rule greatly
outweigh the value of prior notice and opportunity for public comment
which would occur under normal rulemaking.
Effect of this Emergency Interim Rule on Existing Regulations
The emergency interim rule published on January 2, 1996 (61 FR 17)
is superseded by this emergency interim rule.
Classification
The Assistant Administrator for Fisheries, NOAA (AA), has
determined that this rule is necessary to respond to an emergency
situation and is consistent with the Magnuson Act and other applicable
law.
The AA finds that failure to implement the actions in this
emergency interim rule would result in negative social and economic
impacts described above and lead to fishing under potentially dangerous
conditions. In addition, the uncontrolled harvest that would occur
without these actions could contribute to overfishing of red snapper.
The foregoing constitutes good cause to waive the requirement to
provide prior notice and the opportunity for public comment, pursuant
to authority set forth at 5 U.S.C. 553(b)(B), as such procedures would
be contrary to the public interest. Similarly, the need to implement
these measures in a timely manner to address the economic emergency and
public safety considerations constitutes good cause under 5 U.S.C.
553(d)(3) to waive the 30-day delay in effectiveness.
This emergency interim rule has been determined to be significant
for purposes of E.O. 12866, and has been reviewed and cleared by the
Office of Management and Budget.
This emergency interim rule is exempt from the procedures of the
Regulatory Flexibility Act because this rule is not required to be
issued with prior notice and opportunity for public comment.
List of Subjects in 50 CFR Part 641
Fisheries, Fishing, Reporting and recordkeeping requirements.
Dated: February 21, 1996.
Gary Matlock,
Program Management Officer, National Marine Fisheries Service.
For the reasons set out in the preamble, 50 CFR part 641 is amended
as follows:
PART 641--REEF FISH FISHERY OF THE GULF OF MEXICO
1. The authority citation for part 641 continues to read as
follows:
Authority: 16 U.S.C. 1801 et seq.
Secs. 641.1, 641.4, 641.5, 641.7, 641.10, 641.24 [Amended]
2. The April 1, 1996, effective date of the following amendments is
delayed indefinitely:
a. In Sec. 641.1, the revision of paragraph (b), published November
29, 1995 (60 FR 61206).
b. In Sec. 641.4, the revision to the third sentence of paragraph
(i), published November 29, 1995 (60 FR 61207); and the revision to the
first sentence of paragraph (a)(4) and the addition of paragraph (o),
published December 15, 1995 (60 FR 64354).
c. In Sec. 641.5, redesignation of paragraph (d)(3) as paragraph
(d)(4), revision of paragraph (d)(2), and addition of paragraph (d)(3),
published November 29, 1995 (60 FR 61207).
[[Page 7754]]
d. In Sec. 641.7, revisions of paragraphs (g), (r), and (bb),
published November 29, 1995 (60 FR 61207) and the superseding revisions
published December 15, 1995 (60 FR 64354); and addition of paragraphs
(ff) through (kk), published November 29, 1995 (60 FR 61207). [Note:
The first revision to 641.7(bb) published on November 29, 1995 became
effective January 1, 1996, and remains in effect.]
e. In Sec. 641.10, addition of introductory text and paragraphs (a)
and (b), published November 29, 1995 (60 FR 61207)
f. In Sec. 641.24, redesignation of paragraphs (a)(2) and (a)(3) as
paragraphs (a)(3) and (a)(4), respectively, revision of the reference
in newly redesignated paragraph (a)(4), and addition of paragraph
(a)(2), published on November 29, 1995 (60 FR 61209).
3. In Sec. 641.7, paragraph (qq) is removed and paragraphs (nn)
through (pp) are revised to read as follows. Paragraphs (nn) through
(pp) are effective through May 29, 1996.
Sec. 641.7 Prohibitions.
* * * * *
(nn) Exceed the vessel trip or landing limits for red snapper, as
specified in Sec. 641.31(a) and (b).
(oo) Transfer a red snapper at sea, as specified in Sec. 641.31(c).
(pp) Purchase, barter, trade, or sell, or attempt to purchase,
barter, trade, or sell, a red snapper possessed or landed in excess of
a trip or landing limit, as specified in Sec. 641.31(d).
Sec. 641.34 [Removed]
4. Section 641.34 is removed.
4a. Sections 641.31 through 641.33 are revised to read as follows.
Sections 641.31 through 641.33 are effective through May 29, 1996.
Sec. 641.31 Red snapper trip limits.
(a) Except as provided in paragraph (b) of this section, a vessel
that has on board a valid commercial reef fish permit may not possess
on any trip or land in any day red snapper in excess of 200 lb (91 kg),
whole or eviscerated.
(b) A vessel that has on board a valid commercial reef fish permit
and a valid red snapper endorsement may not possess on any trip or land
in any day red snapper in excess of 2,000 lb (907 kg), whole or
eviscerated.
(c) A red snapper may not be transferred at sea from one vessel to
another.
(d) No person may purchase, barter, trade, or sell, or attempt to
purchase, barter, trade, or sell, a red snapper possessed or landed in
excess of the trip or landing limits specified in paragraphs (a) and
(b) of this section.
Sec. 641.32 Red snapper endorsement.
(a) As a prerequisite for exemption from the trip limit for red
snapper specified in Sec. 641.31(a), a vessel for which a commercial
reef fish permit has been issued under Sec. 641.4 must have a red
snapper endorsement on such permit and such permit and endorsement must
be aboard the vessel.
(b) A red snapper endorsement is invalid upon sale of the vessel;
however, an owner of a vessel with a commercial reef fish permit may
transfer the red snapper endorsement to another vessel with a
commercial reef fish permit owned by the same entity by returning the
existing endorsement with an application for an endorsement for the
replacement vessel.
(c) The provisions of paragraph (b) of this section
notwithstanding, special provisions apply in the event of the
disability or death of the owner of a vessel with a red snapper
endorsement or the disability or death of an operator whose presence
aboard the vessel is a condition for the validity of a red snapper
endorsement.
(1) In the event that a vessel with a red snapper endorsement has a
change of ownership that is directly related to the disability or death
of the owner, the Regional Director may issue a red snapper
endorsement, temporarily or permanently, with the commercial reef fish
permit that is issued for the vessel under the new owner. Such new
owner will be the person specified by the owner or his/her legal
guardian, in the case of a disabled owner, or by the will or executor/
administrator of the estate, in the case of a deceased owner. (Change
of ownership of a vessel with a commercial reef fish permit upon
disability or death of an owner is considered a purchase of a permitted
vessel and Sec. 641.4(m)(3) applies regarding a commercial reef fish
permit for the vessel under the new owner.)
(2) In the event of the disability or death of an operator whose
presence aboard a vessel is a condition for the validity of a red
snapper endorsement, the Regional Director may revise and reissue an
endorsement, temporarily or permanently, to the permitted vessel. Such
revised endorsement will contain the name of a substitute operator
specified by the operator or his/her legal guardian, in the case of a
disabled operator, or by the will or executor/administrator of the
estate, in the case of a deceased operator. As was the case with the
replaced endorsement, the presence of the substitute operator aboard
and in charge of the vessel is a condition for the validity of the
revised endorsement. Such revised endorsement will be reissued only
with the concurrence of the vessel owner.
Sec. 641.33 Condition of a permit.
As a condition of a commercial reef fish permit issued under
Sec. 641.4, without regard to where red snapper are harvested or
possessed, a vessel with such permit--
(a) May not exceed the appropriate vessel trip or landing limit for
red snapper, as specified in Sec. 641.31(a) and (b); and
(b) May not transfer a red snapper at sea, as specified in
Sec. 641.31(c).
[FR Doc. 96-4432 Filed 2-23-96; 11:41 am]
BILLING CODE 3510-22-F
Complete official Federal Register PDF
FR Doc. 96-4399 Nicosulfuron; Pesticide Tolerance
[Federal Register Volume 61, Number 41 (Thursday, February 29, 1996)]
[Rules and Regulations]
[Pages 7732-7734]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-4399]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 180
[PP 4F4405/R2206; FRL-5350-8]
RIN 2070-AB78
Nicosulfuron; Pesticide Tolerance
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: This document establishes tolerances for residues of the
herbicide nicosulfuron [3-pyridinecarboxamide, 2-((((4,6-
dimethoxypyrimidin-2-yl)aminocarbonyl)aminosulfonyl)-N,N-dimethyl] in
or on the raw agricultural commodities (RACs) corn, sweet (kernals plus
cobs with husks removed) at 0.1 part per million (ppm); corn, sweet,
forage at 0.1 ppm and corn, sweet, fodder (stover) at 0.1 ppm. E.I. du
Pont de Nemours and Company, Inc., requested these tolerances in a
petition submitted to EPA pursuant to the Federal Food, Drug, and
Cosmetic Act (FFDCA).
EFFECTIVE DATE: This regulation becomes effective February 29, 1996.
ADDRESSES: Written objections and hearing requests, identified by the
document control number [PP4405/R2206], may be submitted to: Hearing
Clerk (1900), Environmental Protection Agency, Rm. M3708, 401 M St.,
SW., Washington, DC 20460. 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 any objections and hearing request
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.
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
[PP4F4405/R2206]. 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, Robert J. Taylor, Product
Manager (PM-25), 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.
241, CM #2, 1921 Jefferson Davis Hwy., Arlington, VA, (703) 305-6027;
e-mail: [email protected].
SUPPLEMENTARY INFORMATION: In the Federal Register of February 8, 1995
(60 FR 7540), EPA issued a notice announcing that Du Pont, Agricultural
Products, Barley Mill, P.O. Box 80038, Wilmington, DE 19880-0038, had
submitted a pesticide petition (PP4F4405) proposing to amend 40 CFR
part 180 by establishing a regulation under section 408(d) of the
Federal Food, Drug and Cosmetic Act (21 U.S.C. 346a(d) to permit
residues of the herbicide nicosulfuron (3-pyridinecarboxamide, 2-
((((4,6-dimethoxypyrimidin-2-y1) aminocarbonyl)aminosulfonyl)-N,N-
dimethyl), in or on corn, sweet (kernals plus cobs with husks removed)
at 0.1 part per million (ppm) and corn, sweet, forage at 0.1 ppm. There
were no comments or requests for referral to an advisory committee
received in response to the notice of filing.
The petitioner subsequently amended the petition by submitting a
revised Section F proposing to establish tolerances for nicosulfuron in
or on the RACs corn, sweet (Kernels plus cobs with Husks Removed) at
0.1 ppm; corn; sweet, forage at 0.1 ppm, and corn, sweet, fodder
(stover) at 0.1 ppm. In the Federal Register of September 13, 1995 (60
FR 47578), EPA issued an amended filing notice proposing these
tolerances. The Agency received one comment opposing these tolerances.
The commenter's opposition to the tolerance was based upon
toxicological concerns including the concept of ``NOEL'' (No observed
effect level); the use of animal testing to represent human reaction to
potentially toxic substances (pesticides); the indications of a link
between pesticide exposure and Parkinson's Disease (PD).
The Agency has reviewed the comment and decided to proceed with
these tolerances. The Agency, made the decision that a wide variety of
toxicological studies would serve as the basis for determining if a
pesticide could be registered and used without unreasonable risk. It is
true that animal models do not and cannot predict every possible human
reaction to pesticides, but the general consensus is that they offer
the best information as to what a pesticide might do to humans.
Usually, the Agency requires and reviews long-term studies in rodents
and non-rodents to determine a dose which causes no apparent adverse
effects. The NOEL is divided by an uncertainty factor - often at least
100 - to arrive at doses or exposures that should not cause harmful
effects on humans. In the Agency's regulation of pesticides, the Agency
does not approve uses which will cause unreasonable adverse effects to
humans or the environment.
The Agency understands that the testing of one pesticide at a time
does not predict all the possible adverse interactions with other
pesticides - or for that matter other drugs or environmental
pollutants. The Agency is exploring ways of testing for the
[[Page 7733]]
interactions of pesticides having similar toxicity endpoint, but
progress in that area is slow.
With reference to the indications of a link between pesticide
exposure and Parkinson's Disease, the Agency is aware that many
researchers are investigating the potential reaction of pesticide
exposures to chronic neurological diseases including Parkinson's
Disease, and additional research is needed to study this important
area. Available studies in humans or animals have not yet established
any relationship between pesticide exposures and Parkinson's Disease.
The data submitted in the petition and other relevant material have
been evaluated. The toxicology data listed below were considered in
support of this tolerance.
1. Several acute toxicology studies placing the technical-grade
herbicide in Toxicity Category III.
2. A 1-year feeding study with dogs fed dosages of 0, 6.25, 125,
and 500 mg/kg/day resulted in a systemic NOEL of 125 mg/kg/day in males
based upon a decrease in body weight gains and a concomitant increase
in relative liver and kidney weights in males. The NOEL for females was
500 mg/kg/day, the highest dose tested (HDT).
3. A 2-year chronic toxicity/carcinogenicity study with rats fed
dosages of 0, 1.9/2.6, 58.1/77.1, 289/382, and 786/1,098 mg/kg/day
(males/females demonstrated that no carcinogenic effects were observed
under the conditions of the study at dose levels up to and including
786/1,098 (males/females) mg/kg/day (HDT) and a systemic NOEL equal to
or greater than 786 mg/kg/day (males) and 1,098 mg/kg/day (females),
(HDT).
4. An 18-month carcinogenicity study with mice fed dosages of 0,
3.3/4.4, 32.7/44.8, 327/438, and 993/1,312 mg/kg/day (males/females)
demonstrated that no carcinogenic effects were observed under the
conditions of the study up to and including 993/1,312 (males/females)
mg/kg/day (HDT) and a systemic NOEL of 993/1,312 (males/females) mg/kg/
day (HDT).
5. A developmental toxicity study in rats fed dosages of 0, 200,
1,000, 2,500, and 6,000 mg/kg/day had a developmental and maternal NOEL
equal to or greater than 6,000 mg/kg/day, (HDT).
6. A developmental toxicity study in rabbits fed dosages of 0, 100,
500, 1,000, and 2,000 mg/kg/day had a maternal NOEL of 100 mg/kg/day
based upon maternal toxicity occurring at 500 mg/kg/day. Maternal
toxicity was demonstrated by an increase in clinical signs, gross
pathological observations, abortions, postimplantation loss and
decrease in body weight gain during the dosing period. The
developmental NOEL was 500 mg/kg/day based upon developmental toxicity
evidenced at 1,000 mg/kg/day in the form of reduced mean fetal body
weights and the apparent increase in postimplantation loss at 500 mg/
kg/day and above.
7. A multi-generation reproduction study in the rat administered
dosages of 0, 12.5, 287, and 1,269 mg/kg/day had a systemic NOEL of 287
mg/kg/day based upon F1 (first mating) females with a lower body weight
gain during the final week of gestation and a similar pattern in the F0
females during the same period of gestation at 1,269 mg/kg/day (HDT).
The reproductive NOEL was 287 mg/kg/day based on a minimal reduction of
litter size at birth and in pup weights at postpartum days 14 through
21 in the F2a high-dose group at 1,269 mg/kg/day (HDT).
8. A mutagenic test with Salmonella typhimurium did not show
mutagenicity in four test strains (TA97A, TA98, TA100, and TA1535) with
or without metabolic activation; in vitro chromosomal aberration test
in cultured human lymphocytes indicated negative response at the
concentrations of 40 to 470 ug/mL; an unscheduled DNA damage assay at
the concentrations of 0.04 to 470 ug/mL was negative; in vitro gene
mutation assay in Chinese hamster ovary cells was nonmutagenic at the
concentrations of 4 to 465 ug/mL with or without metabolic activation;
and a micronucleus assay in mouse bone marrow had negative responses at
the dose levels of 500 to 5,000 mg/kg.
The reference dose (RFD), based on a 1 year dog feeding study (NOEL
of 125 mg/kg bwt/day) and using a hundred fold safety factor, is
calculated to be 1.25 mg/kg bwt/day. The theoretical maximum residue
contribution (TMRC) for the existing tolerances is 0.000034 mg/kg/day
and utilizes 0.003% of the RFD. The current action will increase the
TMRC by 0.000024 mg/kg/day. These tolerances and previously established
tolerances will utilize a total of 0.005% of the RFD for the overall
U.S. population. For U.S. subgroup populations nonnursing infants and
children 1 to 6, the current action and previously established
tolerances utilize 0.011% of the RFD, assuming that residue levels are
at the established tolerances and 100% of the crop is treated.
No desirable data are lacking. The pesticide is useful for the
purpose for which the tolerance is sought. Adequate analytical
methodology (liquid chromatography with ultraviolet detection) is
available for enforcement purposes. The method is not yet published in
the Pesticide Analytical Manual (PAM), but can be obtained as follows:
by mail: Calvin Furlow, Public Information Branch, Field Operations
Division (H7506C), Office of Pesticide Programs, Environmental
Protection Agency, 401 M St., SW., Washington, DC 20460, Office
location and telephone number: Crystal Mall #2, Rm 1130A, 1921
Jefferson Davis Hwy., Arlington, VA, (703-305-5937).
There are currently no actions pending against the registration of
this chemical. No secondary residues are expected to occur in poultry,
meat, meat byproducts, or eggs based on the proposed use on sweet corn,
since sweet corn is not fed to poultry. No secondary residues are
expected to occur in milk and the meat, and meat byproducts of cattle,
goats, hogs, horses and sheep.
Based on the information cited above, the Agency has determined
that the establishment of the tolerances by amending 40 CFR part 180
will protect the public health; therefore, the tolerances are
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 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 in 40 CFR 180.33
(i). If a hearing is requested, the objections must include a statement
of factual issue(s) on which a hearing is requested, the requestor's
contentions on each such issue, 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 a 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 4F4405/R2206] (including objections and hearing requests
submitted
[[Page 7734]]
electronically as described below). A public version of this record,
including printed, paper versions of electronic comments, which does
not include any information claimed as CBI, is available for inspection
from 8 a.m. to 4:30 p.m., Monday through Friday, excluding legal
holidays. The public record is located in Room 1132 of the Public
Response and Program Resources Branch, Field Operations Division
(7506C), Office of Pesticide Programs, Environmental Protection Agency,
Crystal Mall #2, 1921 Jefferson Davis Highway, Arlington, VA.
Written objections and hearing requests, identified by the docket
control number [PP 4F4405/R2206] may be submitted to the Hearing Clerk
(1900), Environmental Protection Agency, Rm. 3708, 401 M St., SW.,
Washington, DC 20460.
A copy of electronic objections and hearing requests filed with the
Hearing Clerk can be sent directly to EPA at: opp-
[email protected] A copy of electronic objections and hearing
requests filed with the Hearing Clerk must be submitted as an ASCII
file avoiding the use of special characters and any form of encryption.
The official record for this rulemaking, as well as the public
version, as described above will be kept in paper form. Accordingly,
EPA will transfer any objections and hearing requests received
electronically into printed, paper form as they are received and will
place the paper copies in the official rulemaking record which will
also include all objections and hearing requests submitted directly in
writing. The official rulemaking record is the paper record maintained
at the address in ``ADDRESSES'' at the beginning of this document.
Under Executive Order 12866 (58 FR 51735, October 4, 1993), the
Agency must determine whether the regulatory action is ``significant''
and therefore subject to review by the Office of Management and Budget
(OMB) and the requirements of the Executive Order. Under section 3(f),
the order defines a ``significant regulatory action'' as an action that
is likely to result in a rule: (1) Having an annual effect on the
economy of $100 million or more, or adversely and materially affecting
a sector of the economy, productivity, competition, jobs, the
environment, public health or safety, or State, local, or tribal
governments or communities (also referred to 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 the rights and obligation of recipients
thereof: or (4) raising novel legal or policy issues arising out of
legal mandates, the President's priorities, or the principles set forth
in this Executive Order.
Pursuant to the terms of the 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, 21 U.S.C. 601-612), the
Administrator has determined that regulations establishing new
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 20, 1996.
Stephen L. Johnson,
Director, Registration Division, 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. In section 180.454 by amending the table therein by adding and
alphabetically inserting new entries for corn, sweet (kernals plus cobs
with husks removed); corn, sweet, fodder (stover); and corn, sweet,
forage; to read as follows:
Sec. 180.454 Nicosulfuron, [3-pyridinecarboxamide, 2-((((4,6-
dimethoxypyrimidin-2-yl)aminocarbonyl)aminosulfonyl)-N,N-dimethyl];
tolerances for residues.
* * * * *
------------------------------------------------------------------------
Commodity Parts per million
------------------------------------------------------------------------
* * * * *
corn, sweet (kernals plus cobs with husks
removed)...................................... 0.1
corn sweet, fodder (stover).................... 0.1
corn, sweet, forage............................ 0.1
------------------------------------------------------------------------
[FR Doc. 96-4399 Filed 2-28-96; 8:45 am]
BILLING CODE 6560-50-F
Complete official Federal Register PDF
FR Doc. 96-4396 Sethoxydim; Pesticide Tolerance
[Federal Register Volume 61, Number 41 (Thursday, February 29, 1996)]
[Rules and Regulations]
[Pages 7727-7729]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-4396]
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 180
[PP 4F4344/R2207; FRL-5350-7]
RIN 2070-AB78
Sethoxydim; Pesticide Tolerance
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: This document establishes a pesticide tolerance for the
combined residues of the herbicide sethoxydim; 2-[1-
(ethoxyimino)butyl]-5-[2-(ethylthio)propyl]-3-hydroxy-2-cyclohexene-1-
one) and its metabolites containing the 2-cyclohexene-1-one moiety
(calculated as the herbicide) in or on the raw agricultural commodities
(RACs) corn, field, grain at 0.5 parts per million (ppm); corn, fodder
at 2.5 ppm; and corn forage at 2.0 ppm. These tolerances replace
current entries for field corn, grain; corn, fodder; and corn, forage.
BASF Corporation requested these tolerances in a petition submitted to
EPA pursuant to Federal Food, Drug, and Cosmetic Act (FFDCA).
EFFECTIVE DATE: February 29, 1996.
ADDRESSES: Written objections and hearing requests, identified by the
docket control number, [PP 4F4344/R2207], may be submitted to: Hearing
Clerk (1900), Environmental Protection Agency, Rm M3708, 401 M St.,
SW., Washington, DC 20460. Fees accompanying objections shall be
labeled ``Tolerance Petition Fees'' and forwarded to EPA Headquarters
Accounting Office Branch, OPP (Tolerance Fees), P.O. Box 360277M,
Pittsburgh, PA 15251. 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 request to: Rm 1132, CM
#2, 1921 Jefferson Davis Hwy., Arlington, VA.
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
request must submitted as an ACSII file avoiding the use of special
characters and any firm of encryption. Copies of objections and hearing
requests will also be accepted on disks in Word Perfect 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
[4F4344/R2207]. 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, Robert J. Taylor, Product
Manager (PM 25), 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.
241, CM #2, 1921 Jefferson Davis Hwy., Arlington, VA, (703) 305-6027;
e-mail: [email protected].
SUPPLEMENTARY INFORMATION: On August 17, 1995 (60 FR 42884), EPA issued
a notice in the Federal Register announcing that BASF Corporation, P.O.
Box 13528, Research Triangle Park, NC 27709-3528, had submitted a
pesticide petition (PP 4F4344) to EPA proposing to amend 40 CFR part
180 pursuant to section 408(d) of the Federal Food, Drug, and Cosmetic
Act (FFDCA), 21 U.S.C. 346a(d), establishing regulations to permit the
combined residues of the herbicide sethoxydim; 2-[1-
(ethoxyimino)butyl]-5-[2-(ethylthio)propyl]-3-hydroxy-2-cyclohexene-1-
one) and its metabolites containing the 2-cyclohexene-1-one moiety
(calculated as the herbicide) in or on the raw agricultural commodities
(RACs) corn, grain at 0.5 part per million (ppm); corn, fodder at 2.5
ppm; corn, forage at 2.0 ppm, and corn, silage at 2.0 ppm.
No comments were received in response to this notice of filing.
The petitioner subsequently amended the petition by submitting a
revised section F deleting the proposed tolerance for corn silage.
Because this is a deletion of a previously proposed tolerance, no
longer in Table 2 of the Residue Chemistry Guidelines, there is no
potential risk to humans. Therefore an additional period of public
comment is not necessary.
The scientific data submitted in the petitions and other relevant
material have been evaluated. The toxicological data considered in
support of the proposed tolerances include:
1. Several acute toxicology studies place technical sethoxydim in
acute toxicity category IV for primary eye and dermal irritation and
acute toxicity category III for acute oral, dermal, and inhalation. The
dermal sensitization - guinea pig study was waived because no
sensitization was seen in guinea pigs dosed with the end-use product
Poast (18% a.i.).
2. A 21-day dermal study with rabbits fed dosages of 0, 40, 200,
and 1,000 mg/kg/day with a NOEL (no-observed adverse effect level) of
greater than 1,000 mg/kg/day (limit dose).
3. A 1-year feeding study with dogs fed dosages (based on
consumption) of 0, 8.86/9.41, 17.5/19.9, and 110/129 mg/kg/day (males/
females) with a NOEL (no-observed effect level) of 8.86/9.41 mg/kg/day
(males/ females) based on equivocal anemia in males and females at
17.5/19.9 mg/kg/day, respectively.
4. A 2-year chronic feeding/carcinogenicity study with mice fed
dosages of 0, 6, 18, 54, and 162 mg/kg/day with no carcinogenic effects
observed under the conditions of the study at dose levels up to and
including 162 mg/kg/day (highest dose tested (HDT)) and a systemic NOEL
of 18 mg/kg/day. A maximum tolerated dose (MTD) was not achieved for
females in this study. A determination of the need for an additional
study will be made once the replacement chronic feeding/carcinogenicity
study in rats is evaluated.
5. A 2-year chronic feeding/carcinogenic study with rats fed
dosages of 0, 2, 6, and 18 mg/kg/day (HDT) with no carcinogenic effects
observed under the conditions of the study at dosage levels up to and
including 18 mg/kg/day (HDT) and a systemic NOEL greater than or equal
to 18 mg/kg/day (HDT). This study was reviewed under current guidelines
and was found to be unacceptable because the doses used were
insufficient to induce a toxic response and a maximum tolerated dose
(MTD) was not achieved. This study must be repeated.
6. A chronic feeding/carcinogenic study with rats was submitted to
supplement the above study. Rats in this study were fed dosages of 0,
18.2/23.0, and 55.9/71.8 mg/kg/day (males/females) with no carcinogenic
effects observed under the conditions of the study at dose levels up to
and including 55.9/71.8 mg/kg/day (HDT) (males/females) and a systemic
NOEL greater than or equal to 55.9/71.8 mg/kg/day (males/females). The
doses used were insufficient to induce a toxic response and failed to
achieve an MTD or define a Lowest Effect Level (LEL). Slight decreases
in body weights in the final
[[Page 7728]]
quarter of the study, although not biologically significant, can
support a free standing NOEL of 55.9/71.8 mg/kg/day (males/females). A
new study is necessary to replace both this study and the one discussed
above.
7. A developmental toxicity study in rats fed dosages of 0, 50,
180, 650, and 1,000 11mg/kg/day with a maternal NOEL of 180 mg/kg/day
and a maternal LEL of 650 mg/kg/day (irregular gait, decreased
activity, excessive salivation, and anogenital staining); and a
developmental NOEL of 180 mg/kg/day and a developmental LEL of 650 mg/
kg/day (21-22% decrease in fetal weights, filamentous tail and lack of
tail due to the absence of sacral and/or caudal vertebrae, and delayed
ossification in the hyoids, vertebral centrum and/or transverse
processes, sternebrae and/or metatarsals, and pubes).
8. A developmental toxicity study in rabbits fed doses of 0, 80,
160, 320, and 400 mg/kg/day with a maternal NOEL of 320 mg/kg/day and a
maternal lowest observable effect level (LOEL) of 400 mg/kg/day (37%
reduction in body weight gain without significant differences in group
mean body weights, and decreased food consumption during dosing); and a
developmental NOEL greater than 400 mg/kg/day (HDT).
9. A 2-generation reproduction study with rats fed dosage levels of
0, 150, 600, and 3,000 ppm (approximately 0, 7.5, 30, and 150 mg/kg/
day) with no reproductive effects observed at 3,000 ppm (approximately
150 mg/kg/day) (HDT). However, the Agency considers this study usable
for regulatory purposes and has established a free-standing NOEL of
3,000 ppm (approximately 150 mg/kg/ day).
10. Mutagenicity studies included: Ames Assays which were negative
for Salmonella typhimurium strains TA98, TA100, TA1535, and TA 1537,
with and without metabolic activity; sethoxydim did not cause
structural chromosomal aberrations at doses up to 5,000 mg/kg in
Chinese hamster bone marrow cells in vivo; a Host Mediated Assay
(mouse) with S. typhimurium was negative at 2.5 grams/kg/day of
chemical, and recombinant assays and forward mutations in Bacillus
subtilis, Escherichia coli, and S. typhimurium were all negative at
concentrations of greater than or equal to 100%; an in vitro
Unscheduled DNA Synthesis Assay in Primary Rat Hepatocytes had a
negative response for DNA repair (UDS) in primary rat hepatocyte
cultures exposed up to insoluble (>101 ug/ml) and cytotoxic (507 ug/ml)
doses.
11. In a rat metabolism study, excretion was extremely rapid and
tissue accumulation was negligible, assuming DMSO vehicle does not
affect excretion or storage of NP-55 (78% excreted into urine and 20.1%
in feces).
The reference dose (RFD) based on a NOEL of 8.86 mg/kg bwt/day in
the 1-year feeding study in dogs, and an uncertainty factor of 100 was
calculated to be 0.09 mg/kg bwt/day. The theoretical maximum residue
contribution (TMRC) for existing tolerances for the overall U. S.
population is 0.032767 mg/kg bwt/day or 35% of the RfD. The current
action will increase the TMRC by 0.000134 mg/kg bwt/day. These
tolerances and previously established tolerances utilize a total of 37
percent of the RfD for the overall U.S. population. For U.S. subgroup
populations, nonnursing infants and children aged 1 to 6, the current
action and previously established tolerances utilize, respectively, a
total of 63.5% and 74% of the ADI, assuming that residue levels are at
the established tolerances and that 100% of the crop is treated. [These
studies are also referenced in an EPA proposed rule on sethoxydim
published elsewhere in this issue of the Federal Register.]
Desirable data lacking based on review of data under current
guidelines include a repeat of the chronic feeding/carcinogenicity
study in rats. Once the rat study is evaluated, a repeat of the mouse
carcinogenicity study may be needed. Because the current studies,
although unacceptable by current guidelines, provide useful information
and these tolerances utilize less than 1% of the RfD, the Agency
believes there is little risk from establishment of these tolerances.
Any additional tolerance proposals will be considered on a case-by-case
basis.
The pesticide is useful for the purposes for which these tolerances
are sought and capable of achieving the intended physical or technical
effect. The nature of the residue is adequately understood, and
adequate analytical methods (gas chromatography using sulfur-specific
flame photometric detection) are available for enforcement purposes.
Previously approved versions of the analytical method are listed in the
Pesticide Analytical Manual, Volume II (PAM II), as Method I. The
analytical methods for corn grain, fodder, and forage are revisions of
the above method. Because of the long lead time from establishing these
tolerances until publication, the enforcement methodology for corn
grain, fodder, and forage are being made available in the interim to
anyone interested in pesticide enforcement when requested by mail from:
Calvin Furlow, Public Response Resources Branch, Field Operations
Division (7506C), Office of Pesticide Programs, Environmental
Protection Agency, 401 M St., SW., Washington, DC 20460. Office
location and telephone number; Rm 1130 A, CM #2, 1921 Jefferson Davis
Hwy., Arlington, VA, (703) 305-6027.
There are currently no actions pending against the registration of
this chemical. Any expectation of residues occurring in eggs, milk,
meat, fat or meat by-products of cattle, goats, hogs, horses, and sheep
or poultry will be covered by existing tolerances.
Based on the information and data considered, the Agency has
determined that the tolerances established by amending 40 CFR part 180
would protect the public health. Therefore, EPA is establishing the
tolerances 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 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 each such issue, 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 a 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 4F4344/R2207] (including objections and hearing requests
submitted electronically as described below). A public version of this
record, including printed, paper versions of electronic comments, which
does not include any information claimed as CBI, is available for
inspection from 8 a.m. to 4:30 pm., Monday through Friday, excluding
legal
[[Page 7729]]
holidays. The public record is located in Room 1132 of the Public
Response and Program Resources Branch, Field Operations Division
(7506C), Office of Pesticide Programs, Environmental Protection Agency,
Crystal Mall #2, 1921 Jefferson Davis Highway, Arlington, VA.
Written objections and hearing requests, identified by the docket
control number [PP 4F4344/R2207], may be submitted to the Hearing Clerk
(1900), Environmental Protection Agency, Rm 3708, 401 M St., SW.,
Washington, DC 20460.
A copy of electronic objections and hearing requests filed with the
Hearing Clerk can be sent directly to EPA at:
[email protected]
A copy of electronic objections and hearing requests filed with the
Hearing Clerk must be submitted as an ASCII file avoiding the use of
special characters and any form of encryption.
The official record for this rulemaking, as well as the public
version, as described above will be kept in paper form. Accordingly,
EPA will transfer any objections and hearing requests received
electronically into printed, paper form as they are received and will
place the paper copies in the official rulemaking record which will
also include all objections and hearing requests submitted directly in
writing. The official rulemaking record is a 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 review by the Office of Management and Budget
(OMB) and the requirements of the Executive Order. Under section 3(f),
the order defines a ``significant regulatory action'' as an action that
is likely to result in a rule: (1) Having an annual effect on the
economy of $100 million or more, or adversely and materially affecting
a sector of the economy, productivity, competition, jobs, the
environment, public health or safety, or State, local, or tribal
governments or communities (also referred to 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 the rights and obligation of recipients
thereof; or (4) raising novel legal or policy issues arising out of
legal mandates, the President`s priorities, or the principles set forth
in this Executive Order.
Pursuant to the terms of the 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, Food additive, Pesticides and pests,
Reporting and recordkeeping requirements.
Dated: February 20, 1996.
Stephen L. Johnson,
Director, Registration Division, 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. In Sec. 180.412(a), by revising the entries for corn, field,
grain; corn fodder; and corn forage to read as follows.
Sec. 180.412 2-[1-Ethoxyimino)butyl]-5-(2-ethylthio)propyl]-3-
hydroxy-2-cyclohexen-1-one; tolerances for residues.
(a) * * *
------------------------------------------------------------------------
Commodity Parts per million
------------------------------------------------------------------------
* * * * *
corn, field, grain............................. 0.5
corn fodder.................................... 2.5
corn forage.................................... 2.0
* * * * *
------------------------------------------------------------------------
* * * * *
[FR Doc. 96-4396 Filed 2-28-96; 8:45 am]
BILLING CODE 6560-50-F
Complete official Federal Register PDF
FR Doc. 96-4395 Pesticide Tolerance for Glyphosate
[Federal Register Volume 61, Number 41 (Thursday, February 29, 1996)]
[Rules and Regulations]
[Pages 7729-7732]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-4395]
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 180
[PP 5F4493/R2205; FRL-5351-5]
RIN 2070-AB78
Pesticide Tolerance for Glyphosate
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: This rule establishes a tolerance for residues of the
herbicide glyphosate [N-(phosphonomethyl)glycine] in or on the raw
agricultural commodity (RAC) cotton gin byproducts at 100 parts per
million (ppm). Monsanto Company requested this tolerance in a petition
submitted to EPA pursuant to the Federal Food, Drug, and Cosmetic Act
(FFDCA).
EFFECTIVE DATE: These regulations become effective February 29, 1996.
ADDRESSES: Written objection and hearing requests, identified by the
docket number, [PP 5F4493/R2205], may be submitted to: Hearing Clerk
(1900), Environmental Protection Agency, Rm. M3708, 401 M St., SW.,
Washington, DC 20460. 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 any objections and hearing request
filed with the Hearing Clerk should be identified by the docket 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 a copy of objections and hearing requests to: Rm.
1132, CM #2, 1921 Jefferson Davis Hwy., Arlington, VA 22202. 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 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 5F4493/R2205]. 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
[[Page 7730]]
at many Federal Depository Libraries. Additional information on
electronic submission can be found below in this document.
FOR FURTHER INFORMATION CONTACT: By mail, Robert J. Taylor, Product
Manager, Registration Division (H7505C), Office of Pesticide Programs,
Environmental Protection Agency, 401 M St., SW., Washington, DC 20460.
Office location and telephone number: Rm. 241, CM #2, 1921 Jefferson
Davis Hwy., Arlington, VA, (703)-305-6027; e-mail:
[email protected].
SUPPLEMENTARY INFORMATION: EPA issued a notice in the Federal Register
of August 17, 1995 (60 FR 42884), which announced that Monsanto
Company, 700 14th Street, NW., Suite #1100, Washington, DC 20005 had
submitted a petition (5F4493) proposing to amend 40 CFR part 180
pursuant to section 408 (d) of the Federal Food, Drug, and Cosmetic Act
(FFDCA) 21 U.S.C. 346 (a), by establishing a regulation to permit
residues of the herbicide glyphosate [N-(phosphonomethyl)glycine]
resulting from the application of the isopropylamine salt and/or the
monoammonium salt of glyphosate in or on the raw agricultural commodity
(RAC) cotton gin byproducts at 100 parts per million (ppm).
There were no comments or requests for referral to an advisory
committee received in response to this notice of filing.
The data submitted in the petitions and other relevant material
have been evaluated. The glyphosate toxicological data listed below
were considered in support of these tolerances.
1. Several acute toxicology studies placing technical-grade
glyphosate in Toxicity Category III and Toxicity Category IV.
2. A 1-year feeding study with dogs fed dosage levels of 0, 20,
100, and 500 milligrams/kilogram/day (mg/kg/day) with a no-observable-
effect level (NOEL) of 500 mg/kg/day.
3. A 2-year carcinogenicity study in mice fed dosage levels of 0,
150, 750, and 4,500 mg/kg/day with no carcinogenic effect at the
highest dose tested (HDT) of 4,500 mg/kg/day.
4. A chronic feeding/carcinogenicity study in male and female rats
fed dosage levels of 0, 3, 10, and 31 mg/kg/day (males) and 0, 3, 11,
or 34 mg/kg/day (females) with no carcinogenic effects observed under
the conditions of the study at dose levels up to and including 31 mg/
kg/day (HDT) (males) and 34 mg/kg/day (HDT) (females) and a systemic
NOEL of 31 mg/kg/day (HDT)(males) and 34 mg/kg/day (HDT) (females).
Because a maximum tolerated dose (MTD) was not reached, this study was
classified as supplemental for carcinogenicity.
5. A chronic feeding/carcinogenicity study in male and female rats
fed dosage levels of 0, 89, 362, and 940 mg/kg/day (males) and 0, 113,
457, and 1,183 mg/kg/day (females) with no carcinogenic effects noted
under the conditions of the study at dose levels up to and including
940/1,183 mg/kg/day (males/females) (HDT) and a systemic NOEL of 362
mg/kg/day (males) based on an increased incidence of cataracts and lens
abnormalities, decreased urinary pH, increased liver weight and
increased liver weight/brain ratio (relative liver weight) at 940 mg/
kg/day (males) (HDT) and 457 mg/kg/day (females) based on decreased
body weight gain 1,183 mg/kg/day (females) (HDT).
6. A developmental toxicity study in rats given doses of 0, 300,
1,000, and 3,500 mg/kg/day with a developmental NOEL of 1,000 mg/kg/day
based on an increase in number of litters and fetuses with unossified
sternebrae, and decrease in fetal body weight at 3,500 mg/kg/day, and a
maternal NOEL of 1,000 mg/kg/day based on decrease in body weight gain,
diarrhea, soft stools, breathing rattles, inactivity, red matter in the
region of nose, mouth, forelimbs, or dorsal head, and deaths at 3,500
mg/kg/day (HDT).
7. A developmental toxicity study in rabbits given doses of 0, 75,
175, and 350 mg/kg/day with a developmental NOEL of 350 mg/kg/day
(HDT); a maternal NOEL of 175 mg/kg/day based on increased incidence of
soft stool, diarrhea, nasal discharge, and deaths at 350 mg/kg/day
(HDT).
8. A multigeneration reproduction study with rats fed dosage levels
of 0, 3, 10, and 30 mg/kg/day with a developmental NOEL of 10 mg/kg/day
based on increased incidence of focal tubular dilation of the kidney
(both unilateral and bilateral combined) of male F3b pups.
9. A two generation reproduction study with rats fed dosage levels
of 0, 100, 500, and 1,500 mg/kg/day with a developmental NOEL of 500
mg/kg/day based on decreased pup body weight and body weight gain on
lactation days 14 and 21 at 1,500 mg/kg/day (HDT), a systemic NOEL of
500 mg/kg/day based on soft stools in Fo and F1 males and females at
1,500 mg/kg/day (HDT) and a reproductive NOEL of 1,500 mg/kg/day (HDT).
10. Mutagenicity data included chromosomal aberration in vitro (no
aberrations in Chinese hamster ovary cells were caused with and without
S9 activation); DNA repair in rat hepatocyte; in vivo bone marrow
cytogenic test in rats; rec-assay with B. subtilis; reverse mutation
test with S. typhimurium; Ames test with S. typhimurium; and dominant-
lethal mutagenicity test in mice (all negative).
The reference dose (RfD) based on a developmental study with
rabbits (NOEL of 175 mg/kg/bwt/day) and using a hundred-fold safety
factor is calculated to be 2.0 mg/kg/bwt/day. The theoretical maximum
residue contribution (TMRC) for published tolerances and food and feed
additive regulations is 0.02059 mg/kg/bwt/day or 1.0 percent of the RfD
for the overall U.S. population. The current action on cotton gin
byproducts will not increase the TMRC or percent of the RfD.
Established tolerances utilize a total of 1.0 percent of the RfD for
the overall U.S. population.
For U.S. subgroup populations, nonnursing infants and children 1 to
6 years of age, the current action and previously established
tolerances and the food additive regulation utilize, respectively, a
total of 2.4 and 2.3 percent of the RfD, assuming that residue levels
are at the established tolerance levels and that 100 percent of the
crop is treated.
There are no desirable data lacking for this pesticide. There are
currently no actions pending against the continued registration of this
pesticide. No detectable residues of N-nitrosoglyphosate, a contaminant
of glyphosate, are expected to be present in the commodities for which
tolerances are established. The carcinogenic potential of glyphosate
was first considered by a panel, then called the Toxicology Branch AD
Hoc Committee, in 1985. The Committee, in a consensus review dated
March 4, 1985, classified glyphosate as a Group C carcinogen based on
an increased incidence of renal tumors in male mice. The Committee also
concluded that dose levels tested in the 26-month rat study were not
adequate for assessment of glyphosate's carcinogenic potential in this
species. These findings, along with additional information, including a
reexamination of the kidney slides from the long-term mouse study, were
referred to the FIFRA Scientific Advisory Panel (SAP). In its report
dated February 24, 1986, SAP classified glyphosate as a Group D
Carcinogen (inadequate animal evidence of carcinogenic potential). SAP
concluded that, after adjusting for the greater survival in the high-
dose mice compared to concurrent controls, that no statistically
significant pairwise differences existed, although the trend was
significant.
[[Page 7731]]
The SAP determined that the carcinogenic potential of glyphosate
could not be determined from existing data and proposed that the rat
and/or mouse studies be repeated in order to classify these equivocal
findings. On reexamination of all information, the Agency classified
glyphosate as a Group D Carcinogen and requested that the rat study be
repeated and that a decision on the need for a repeat mouse study would
be made upon completion of review of the rat study.
Upon receipt and review of the second rat chronic feeding/
carcinogenicity study, all toxicological findings for glyphosate were
referred to the Health Effects Division Carcinogenicity Peer Review
Committee on June 26, 1991, for discussion and evaluation of the
weight-of-evidence on glyphosate with particular emphasis on its
carcinogenic potential. The Peer Review Committee classified glyphosate
as a Group E (evidence of noncarcinogenicity for humans), based upon
lack of convincing carcinogenicity evidence in adequate studies in two
animal species. This classification is based on the following findings:
(1) None of the types of tumors observed in the studies (pancreatic
islet cell adenomas in male rat, thyroid c-cell adenomas and/or
carcinomas in male and female rats, hepatocellular adenomas and
carcinomas in male rats, and renal tubular neoplasms in male mice) were
determined to be compound related; (2) glyphosate was tested up to the
limit dose on the rat and up to levels higher than the limit dose in
mice; and (3) there is no evidence of genotoxicity for glyphosate.
Accordingly, EPA concludes that glyphosate has not been ``found to
induce cancer when ingested by man or animal.'' 21 U.S.C. 348(c)(3).
The nature of the residue in plants is adequately understood,
adequate methodology (HPLC) with flurometric detection is available for
enforcement purposes, and the methodology has been published in the
Pesticide Analytical Manual (PAM), Vol. II. Any secondary residues
occurring in the kidney and liver of cattle, goats, horses, hogs, and
sheep and liver and kidney of poultry will be covered by existing
tolerances. The pesticide is considered useful for the purpose for
which the regulation is sought and is capable of achieving the intended
physical or technical effect.
Based on the information cited above, the Agency has determined
that the establishment of this tolerance by amending 40 CFR part 180
will protect the public health. Therefore, EPA is establishing this
tolerance 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 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 the hearing is
requested, the requestor`s contentions on each such issue, 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 a genuine and
substantial issue of fact; there is a reasonable possibly that
available evidence identified by the requestor would, if established,
resolve one or more 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 5F4493/R2205] (including objections and hearing requests
submitted electronically as described below). A public version of this
record, including printed, paper versions of electronic comments, which
does not include any information claimed as CBI, is available for
inspection from 8 a.m. to 4.30 p.m., Monday through Friday, excluding
legal holidays. The public record is located in Room 1132 of the Public
Response and Program Resources Branch, Field Operations Division
(7506C), Office of Pesticide Programs, Environmental Protection Agency,
Crystal Mall #2, 1921 Jefferson Davis Highway, Arlington, Va.
Written objections and hearing requests, identified by the docket
number [5F4493/R2205] may be submitted to the Hearing Clerk (1900),
Environmental Protection Agency, Rm 3708, 401 M St. SW., Washington, DC
20460. A copy of electronic objections and hearing requests filed with
the Hearing Clerk can be sent directly to EPA at:
opp-D[email protected]
A copy of electronic objections and hearing requests filed with the
Hearing Clerk must be submitted as an ASCII file avoiding the use of
special characters and any form of encryption.
The official record for this rulemaking, as well as the public
version, as described above will be kept in paper form. Accordingly,
EPA will transfer any objections and hearing requests received
electronically into printed, paper form as they are received and will
place the paper copies in the rulemaking record which will also include
all objections and hearing requests submitted directly in writing. The
official 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 review by the Office of Management and Budget
(OMB) and the requirements of the Executive Order. Under section 3(f),
the order defines a ``significant regulatory action'' as an action that
is likely to result in a rule (1) having an annual effect on the
economy of $100 million or more, or adversely and materially affecting
a sector of the economy, productivity, competition, jobs, the
environment, public health or safety, or State, local, or tribal
governments or communities (also referred to 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 the rights and obligation of recipients
thereof; or (4) raising novel legal orpolicy issues arising out of
legal mandates, the President`s priorities, or the principles set forth
in this Executive Order.
Pursuant to the terms of the Executive Order, EPA has determined
that this rule is not ``significant'' and is therefore not subject to
ORB 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 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
[[Page 7732]]
and pests, Reporting and recordkeeping requirements.
Dated: February 20, 1996.
Stephen L. Johnson,
Director, Registration Division, Office of Pesticide Programs.
Therefore, chapter I, part 180 of title 40 of the Code of Federal
Regulations is amended as follows:
PART 180--[AMENDED]
1. The authority citation for part 180 continues to read as
follows:
Authority: 21 U.S.C. a and 371.
2. In Sec. 180.364, by amending the table in paragraph (d) by
alphabetically adding the raw agricultural commodity ``cotton gin
byproducts'' to read as follows:
Sec. 180.364 Glyphosate; tolerances for residues.
* * * * *
(d) * * *
------------------------------------------------------------------------
Parts per
Commodity million
------------------------------------------------------------------------
* * * * *
Cotton gin byproducts........................................ 100.0
* * * * *
------------------------------------------------------------------------
[FR Doc. 96-4395 Filed 2-28-96; 8:45 am]
BILLING CODE 6560-50-F
Complete official Federal Register PDF
FR Doc. 96-4392 Imidacloprid; Pesticide Tolerances
[Federal Register Volume 61, Number 41 (Thursday, February 29, 1996)]
[Rules and Regulations]
[Pages 7734-7736]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-4392]
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 180 and 186
[PP 3F4169 and FAP 3H5655/R2200; FRL-4996-2]
RIN 2070-AC78
Imidacloprid; Pesticide Tolerances
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: EPA is establishing permanent tolerances for residues of the
insecticide (1-[(6-chloro-3-pyridinyl)methyl]-N-nitro-2-
imidazolidinimine) (also known as imidacloprid) and it metabolites in
or on cottonseed and cotton gin byproducts, revoking the existing feed
additive tolerance for imidacloprid on cotton meal, and establishing a
maximum residue limit for imidacloprid on cottonseed meal. Bayer
Corporation (formerly Miles, Inc.) submitted petitions pursuant to the
Federal Food, Drug and Cosmetic Act (FFDCA) requesting these
regulations to establish certain maximum permissible levels for
residues of the insecticide.
EFFECTIVE DATE: This regulation is effective on February 15, 1996.
ADDRESSES: Written objections and hearing requests, identified by the
document control number, [PP 3F4169 and FAP 3H5655/R2200, 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,
[[Page 7735]]
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 [PP 3F4169 and FAP 3H5655/R2200. 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: Dennis H. Edwards, Jr.,
Product Manager (PM) 19, Registration Division (7505C), Office of
Pesticide Programs, Environmental Protection Agency, 401 M St., SW.,
Washington, DC 20460. Office location and telephone number: Rm. 207, CM
#2, 1921 Jefferson Davis Hwy., Arlington, VA 22202, (703)-305-6386;
email: [email protected].
SUPPLEMENTARY INFORMATION: In the Federal Register of December 6, 1995,
(60 FR 62366), EPA issued a proposed rule pursuant to petitions from
Bayer Corporation (formerly Miles, Inc.) to section 408 of the Federal
Food, Drug and Cosmetic Act (FFDCA), 21 U.S.C. 346a(e). EPA proposed
permanent tolerances for residues of the insecticide (1-[(6-chloro-3-
pyridinyl)methyl]-N-nitro-2-imidazolidinimine (also known as
imidacloprid) and its metabolites in or on cottonseed and cotton gin
byproduct, to revoke the existing feed additive tolerance for
imidacloprid on cotton meal, and to establish a maximum residue limit
for imidacloprid on cottonseed.
There were no comments or request for referral to an advisory
committee received in response to the proposed rule.
This pesticide is considered useful for the purposes for which the
tolerances are sought. Based on the information and data considered,
the Agency has determined that the tolerances established by amending
40 CFR part 180 would protect the public health. Therefore, the
tolerances are 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 a 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 3F4169 and FAP 3H5655/R2200] (including any objections and
hearing requests submitted electronically as described below). A public
version of this record, including printed, paper versions of electronic
comments, which does not include any information claimed as CBI, is
available for inspection from 8 a.m. to 4:30 p.m., Monday through
Friday, excluding legal holidays. The public record is located in Room
1132 of the Public Response and Program Resources Branch, Field
Operations Division (7506C), Office of Pesticide Programs,
Environmental Protection Agency, Crystal Mall #2, 1921 Jefferson Davis
Highway, Arlington, VA.
Written objections and hearing requests, identified by the document
control number [PP 3F4169 and FAP 3H5655/R2200], may be submitted to
the Hearing Clerk (1900), Environmental Protection Agency, Rm. 3708,
401 M St., SW., Washington, DC 20460.
A copy of electronic objections and hearing requests filed with the
Hearing Clerk can be sent directly to EPA at:
opp-D[email protected]
A copy of electronic objections and hearing requests filed with the
Hearing Clerk must be submitted as an ASCII file avoiding the use of
special characters and any form of encryption.
The official record for this rulemaking, as well as the public
version, as described above will be kept in paper form. Accordingly,
EPA will transfer any objections and hearing requests received
electronically into printed, paper form as they are received and will
place the paper copies in the official rulemaking record which will
also include all objections and hearing requests submitted directly in
writing. The official rulemaking record is the paper record maintained
at the address in ``ADDRESSES'' at the beginning of this document.
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).
[[Page 7736]]
List of Subjects in 40 CFR Parts 180 and 186
Environmental protection, Administrative practice and procedure,
Agricultural commodities, Feed additives, Pesticides and pests,
Reporting and recordkeeping requirements.
Dated: February 15, 1996.
Stephen L. Johnson,
Director, Registration Division, Office of Pesticide Programs.
Therefore, 40 CFR parts 180 and 186 are amended as follows:
PART 180--[AMENDED]
1. In part 180:
a. The authority citation for part 180 continues to read as
follows:
Authority: 21 U.S.C. 346a and 371.
b. In Sec. 180.472, by amending the table in paragraph (a) by
adding and alphabetically inserting the following new entries and by
removing and reserving paragraph (b), to read as follows:
Sec. 180.472 1-[(6-Chloro-3-pyridinyl)methyl]-N-nitro-2-
imidazolidinimine; tolerances for residues.
(a) * * *
------------------------------------------------------------------------
Parts per
Commodity million
------------------------------------------------------------------------
* * * * * * *
Cotton, gin byproducts..................................... 4.0
Cottonseed................................................. 6.0
* * * * * * *
------------------------------------------------------------------------
(b) [Reserved]
* * * * *
PART 186--PESTICIDES IN ANIMAL FEED
2. In part 186:
a. By revising the heading of part 186 to read as set forth above.
b. The authority citation for part 186 is revised to read as
follows:
Authority: 21 U.S.C. 342, 348, and 701.
c. In Sec. 186.900, by revising paragraph (b), to read as follows:
Sec. 186.900 1-[(6-Chloro-3-pyridinyl)methyl]-N-nitro-2-
imidazolinimine; tolerances for residues.
* * * * *
(b)(1) A maximum residue level regulation is established for
residues of the insecticide 1-[(6-choro-3-pryidinyl)methyl]-N-nitro-2-
imidazolidinimine in or on the following feed resulting from
application of the insecticide to cotton:
------------------------------------------------------------------------
Parts per
Feed million
------------------------------------------------------------------------
Cottonseed meal............................................ 8.0
------------------------------------------------------------------------
(2) The regulation in paragraph (b)(1) of this section reflects the
maximum level of residues in cottonseed meal consistent with use of 1-
[(6-chloro-3-pyridinyl) methyl]-N-nitro-2-imidazolidinimine on cotton
in conformity with Sec. 180.472 of this chapter and with the use of
good manufacturing practices.
* * * * *
[FR Doc. 96-4392 Filed 2-28-96; 8:45 am]
BILLING CODE 6560-50-F
Complete official Federal Register PDF
FR Doc. 96-4274 Response Plans for Marine Transportation-Related Facilities
[Federal Register Volume 61, Number 41 (Thursday, February 29, 1996)]
[Rules and Regulations]
[Pages 7890-7939]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-4274]
[[Page 7889]]
_______________________________________________________________________
Part III
Department of Transportation
_______________________________________________________________________
Coast Guard
_______________________________________________________________________
33 CFR Parts 150 and 154
Response Plans for Marine Transportation-Related Facilities; Final Rule
Federal Register / Vol. 61, No. 41 / Thursday, February 29, 1996 /
Rules and Regulations
=======================================================================
-----------------------------------------------------------------------
[[Page 7890]]
DEPARTMENT OF TRANSPORTATION
Coast Guard
33 CFR Parts 150 and 154
[CGD 91-036]
RIN 2115-AD82
Response Plans for Marine Transportation-Related Facilities
AGENCY: Coast Guard, DOT.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Coast Guard is adopting with some changes, as final, the
interim final rule which establishes regulations requiring response
plans for marine transportation-related (MTR) facilities including
deepwater ports, certain Coast Guard regulated onshore facilities,
marinas, tank trucks, and railroad tank cars. This final rule also
adopts with some changes, as final, the interim final rule which
establishes additional response plan requirements for facilities
located in Prince William Sound, Alaska, permitted under the Trans-
Alaska Pipeline Authorization Act (TAPAA). These regulations are
mandated by the Federal Water Pollution Control Act (FWPCA), as amended
by the Oil Pollution Act of 1990 (OPA 90). The purpose of requiring
facility response plans is to enhance private sector planning and
response capabilities to minimize the environmental impact of spilled
oil.
EFFECTIVE DATE: May 29, 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) (CGD 91-036),
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
Friday, except Federal holidays. The telephone number is (202) 267-
1477.
FOR FURTHER INFORMATION CONTACT:
LCDR Walter (Bud) Hunt, Response Division (G-MEP), (202) 267-0441. This
telephone is equipped to record messages on a 24-hour basis.
SUPPLEMENTARY INFORMATION:
Drafting Information
The principal persons involved in drafting this document are LT
Cliff Thomas, Project Manager, Standards Evaluation Branch (G-MES-2),
and Jacqueline Sullivan, Project Counsel, Office of Chief Counsel (G-
LRA).
Regulatory History
On March 11, 1992 the Coast Guard published an advance notice of
proposed rulemaking (ANPRM) in the Federal Register (57 FR 8708)
entitled ``Facility Response Plans.'' The ANPRM discussed the
background, statutory requirements of section 311(j) of the FWPCA, and
possible regulatory approaches. In addition, the ANPRM posed questions
for public comment. The Coast Guard received 116 comments.
On June 19, 1992, the Coast Guard published a notice of proposed
rulemaking (NPRM) on the related rulemaking project Vessel Response
Plans (VRP) (57 FR 27514). The Coast Guard also gathered public input
on the proposed VRP rule through the Oil Spill Response Plan Negotiated
Rulemaking Committee. Twenty-six organizations and the Coast Guard were
members of the Committee. To maintain consistency between the two
regulations, this rule uses certain concepts developed in the VRP NPRM
and negotiated rulemaking committee.
The Coast Guard released Navigation and Vessel Inspection Circular
(NVIC) No. 7-92 on September 15, 1992. NVIC No. 7-92 provided immediate
guidance to the marine industry for preparing facility response plans
to meet the February 1993 deadline established by the Oil Pollution Act
of 1990 (OPA 90).
On February 5, 1993, the Coast Guard published an Interim Final
Rule (IFR) entitled ``Response Plans for Marine Transportation-Related
Facilities'' in the Federal Register (58 FR 7330). The Coast Guard
received 55 comments on the IFR. These comments were considered in
developing this final rule.
Background and Purpose
In response to several recent major oil spills, Congress passed the
Oil Pollution Act of 1990 (OPA 90) (Pub. L. 101-380). OPA 90 amended
section 311(j) of the Federal Water Pollution Control Act (FWPCA) (33
U.S.C. 1321(j)). It established requirements, and an implementation
schedule, for facility response plans and periodic inspections of
discharge-removal equipment.
As amended by OPA 90, section 311(j)(5) directs the President to
issue regulations implementing the new FWPCA requirements for facility
response plans. The President delegated this authority, in part, to the
Secretary of Transportation (DOT) by Executive Order 12777 (3 CFR, 1991
Comp.; 56 FR 54757). The Secretary of Transportation, in 49 CFR 1.46(m)
(57 FR 8581; March 11, 1992), further delegated, to the Commandant of
the Coast Guard, the authority to regulate marine transportation-
related (MTR) onshore facilities, and deepwater ports subject to the
Deepwater Ports Act of 1974, as amended (33 U.S.C. 1501, et seq.). This
rule addresses only MTR facilities that handle, store, or transport
oil. Oil spill response plan regulations for vessels are the subject of
a separate rulemaking project (CGD 91-034).
Section 311(a)(1) of the FWPCA defines oil as including, but not
limited to, petroleum, fuel oil, sludge, oil refuse, and oil mixed with
waste other than dredge spoils (33 U.S.C. 1321(a)(1)). While the most
common oils are the various petroleum oils (e.g., crude oil, gasoline,
diesel, etc.), non-petroleum oils such as animal fats (e.g., tallow,
lard, etc.), vegetable oils (e.g., corn oil, sunflower seed oil, palm
oil, etc.), and other non-petroleum oils, such as turpentine, are
included within the ambit of this regulation when handled, stored or
transported by an MTR facility.
A major objective of the OPA 90 amendments to the FWPCA was to
create a national planning and response system. OPA 90 requires the
President to develop nationwide criteria for determining those
facilities which could reasonably be expected to cause substantial harm
to the environment. The OPA 90 Conference Report (Report 101-653)
states that the criteria should result in a broad requirement for
facility owners or operators to prepare and submit response plans.
Those facilities identified by the President are required to submit
response plans.
Section 311(j)(5) of the FWPCA requires the preparation and
submission of response plans from all onshore facilities that could
reasonably be expected to cause either ``substantial'' or ``significant
and substantial'' harm to the environment by discharging oil into or on
the navigable waters, adjoining shorelines, or exclusive economic zone
of the United States. Response plans must also be consistent with the
National Oil and Hazardous Substances Pollution Contingency Plan (NCP)
(40 CFR part 300) and applicable Area Contingency Plans (ACPs).
Section 311(j)(5) also requires that, in a facility response plan,
an owner or operator identify and ensure by contract or other means
approved by the President the availability of private personnel and
equipment sufficient to remove, to the maximum extent practicable, a
worst case discharge and to mitigate or prevent substantial threat of
such a discharge.
Section 311(j)(5)(F) of the FWPCA allows the Coast Guard to
authorize an MTR facility requiring plan approval to
[[Page 7891]]
operate for up to 2 years after a plan is submitted for approval. This
provides an interim period in which the facility may continue to
operate while the plan approval process is completed.
Section 5005 of OPA 90 establishes requirements for response plans
for MTR facilities located in Prince William Sound, Alaska, which are
permitted under the Trans-Alaska Pipeline Authorization Act (TAPAA) (43
U.S.C. 1651, et seq.). This section requires a higher level of
preparedness for facilities in Prince William Sound in order to provide
an even greater margin of safety.
Although OPA 90 requires response plans for oil or hazardous
substance spills, section 4202(b)(4) establishes an implementation
schedule only for oil spill response plans. Response plans for
hazardous substance spills will be the subject of a separate
rulemaking.
Discussion of Comments and Changes
The Coast Guard received 55 comments on the IFR. The following
discussion summarizes the comments and explains substantive changes
made to the regulation in response to the comments. Comments are
categorized by the specific section of the IFR to which they apply. In
addition to these changes, editorial changes have been made to clarify
the rule or standardize terminology. The following sections have
changes which are purely editorial: Secs. 154.1010, 154.1017, 154.1030,
154.1047, 154.1050, 154.1070, 154.1075, 154.1125, and appendix C,
sections 1, 3, 4, 5, 7, and 8. The following sections were not changed:
Secs. 154.1028, 154.1029, 154.1041, 154.1057, 154.1115, 154.1130,
154.1135, 154.1140 and appendix C, sections 6 and 9 and Tables 1-5. For
the convenience of the public, the Coast Guard has reprinted subparts F
and G of part 154 in their entirety, including both changed and
unchanged sections. Two new subparts H and I have also been added to
part 154.
General Comments
One comment argued that the regulations do not consider economic
reasonableness, overstep the intent of Congress in their scope and
essentially place the entire burden for cleanup on owners and operators
of facilities. The Coast Guard disagrees. The primary intent of the
response planning portions of OPA 90 was to require that facility
owners or operators identify and ensure, by contract or other approved
means, the availability of private personnel and equipment to remove a
worst case discharge. The Coast Guard has considered the economic costs
of this final rule and they are summarized in this preamble in the
section entitled ``Assessment.''
Regulatory consistency. The Coast Guard received 16 comments urging
regulatory consistency in the development of these regulations. All of
these comments stated that there should be consistency with the other
regulations issued under OPA 90. One of these comments also recommended
the establishment of an interagency working group to identify which
sections of rules should be consistent and work toward achieving that
consistency. Another of these comments also urged that response plan
requirements should be amended to resemble EPA's requirements more
closely but that the Coast guard's requirements should have a much
closer focus on emergency response. The Coast Guard, EPA, and other
Federal agencies met repeatedly throughout the development of each
agency's rules. This coordination has produced significant similarities
between agencies issuing response plan rules. For example, the Coast
Guard and EPA have adopted the same requirements with respect to
planning volumes, amounts of response equipment, and the use of
dispersants, and other similar new or unconventional spill mitigation
techniques including mechanical dispersal.
Public Participation. Six comments addressed concerns of public
participation in the process of this rulemaking. Four comments argued
that the Coast Guard should have issued an NPRM instead of an IFR to
facilitate public comment. The IFR was issued to meet OPA 90's deadline
for implementing these oil pollution rules. Public comment to the IFR
has been considered in the development of this final rule.
One comment argued that the IFR did not meet the requirements of
OPA 90 for public input regarding the adequacy of the plans because it
does not provide for notification of plan receipt by the Coast Guard;
supplying copies of the plans to interested people; making copies of
the plans available in a central location for public review; or
allowing the public to appeal Coast Guard decisions on deficiencies or
classification.
The Coast Guard concludes that there is no requirement contained in
OPA 90 for the public to determine the adequacy of individual response
plans from onshore or offshore facilities. Along with Federal, state,
and local government representatives who are responsible for
coordinating environmental issues and emergency response operations,
the Coast Guard has encouraged Area Committees to include environmental
groups, representatives from academia, and concerned citizens. The
Coast Guard concludes that this is an appropriate method for private
citizens to provide advice, guidance, and expertise to the Area
Committee and will result in a coordinated community response to an oil
discharge.
This same comment requested a public hearing and the establishment
of a negotiated rulemaking committee for this regulation. The Coast
Guard established an Oil Spill Response Plan Negotiated Rulemaking
Committee (56 FR 58202, November 18, 1991). The Coast Guard used
information in the final report provided by the Committee in the
drafting of the VRP Rule (CGD 91-036) and this rule. The Coast Guard
finds it unnecessary to conduct a separate negotiated rulemaking for
the Facility Response Plan (FRP) rule.
Clarification. Two comments requested general clarification of the
IFR. One comment stated that the regulations must be clarified in many
respects to avoid differences of interpretation. The other comment was
concerned with words in the regulations having different meanings from
their accepted meanings. The Coast Guard recognizes these concerns and
has strived for clarity in this final rule. For example, in this final
rule, the Coast Guard has added definitions of the terms ``complex'',
``tier'', and ``fish and wildlife and sensitive environment''. It has
also issued guidance to response plan reviewers to assure uniform
understanding and enforcement of response plan requirements.
Agency jurisdiction. Two comments addressed the issue of
jurisdictional conflicts between agencies. One comment asserted that
there is an overlap in Coast Guard and Research and Special Programs
Administration (RSPA) authority over pipelines. This comment argued
that pipelines used only for transporting fuel between tanks and
vessels were previously subject only to Coast Guard jurisdiction.
However, this comment argues, new RSPA regulations now apply to all
pipelines. This comment contended that such regulation conflicts with
the delegation of authority in E.O. 12777 giving RSPA authority over
non-MTR pipelines only.
Executive Order 12777 delegated to the Secretary of Transportation
responsibility for the issuance of regulations requiring the owner or
operator of a transportation-related onshore facility and deepwater
ports to prepare and submit response plans. The Secretary delegated to
the Commandant of the Coast Guard the responsibility for
[[Page 7892]]
the issuance of regulations requiring the owner or operator of a marine
transportation-related onshore facility and deepwater ports to prepare
and submit response plans. The Secretary delegated to the Administrator
of RSPA the same authority for non-marine transportation-related
pipelines. The Coast Guard finds that there is no conflict over
jurisdiction.
Section 150.129 Response Plans
The Coast Guard received one comment on this section. The comment
requested that the Coast Guard clarify the submission requirements for
deepwater ports. Under the IFR, the Coast Guard determined that
deepwater ports are significant and substantial harm facilities under
Sec. 154.1015 and, therefore, are required to submit a response plan
for review and approval. The Coast Guard finds that the submission
requirements are clear and, therefore, has made no changes to the final
rule on the classification of deepwater ports.
Section 154.106 Incorporation by Reference
The Coast Guard received one comment on this section. The comment
stressed that the Coast Guard should review the standard test methods
developed by the American Society of Testing Materials (ASTM) that are
incorporated by reference in this section as the standards are revised.
The Coast Guard intends to review any revisions to these standards and
will conduct appropriate rulemaking to revise this section if warranted
by changes to these standards.
Section 154.1010 Purpose
The Coast Guard received several comments requesting clarification
of this section. In response to these comments, the Coast Guard has
revised this section to clarify the purpose of response plans.
Section 154.1015 Applicability
The Coast Guard received eight comments on this section of the IFR.
Three comments argued that the classification of facilities should not
be determined solely by the amount of oil that a facility is capable of
transferring. The comments stated that other factors such as a
facility's spill history, proximity to fish and wildlife and sensitive
environments, presence of containment structures, and potential worst
case discharge should be considered in the classification of
facilities.
The IFR reflects the Coast Guard determination that all MTR
facilities that transfer oil to or from a vessel with a capacity of 250
barrels or more could reasonably be expected to cause at least
substantial harm to the environment, and that large fixed facilities
and deepwater ports could reasonably be expected to cause significant
and substantial harm to the environment in the case of an oil
discharge. If a facility owner or operator believes that his or her
facility should be reclassified from significant and substantial harm
to substantial harm or excluded from the substantial harm category
based on factors other than the facility's capacity for transferring
oil, then under Sec. 154.1075 the facility owner or operator is
permitted to appeal the classification to the COTP and then to the
District Commander, and then to the Commandant. There have been no
changes in these provisions in the final rule.
Although the Coast Guard has not changed the final rule to reflect
the consideration of factors other than the facility's type and its
capacity for transferring oil in the classification of the facility,
the Coast Guard has modified the threshold for the initial
classification of significant and substantial harm facilities in the
final rule, thereby decreasing the number of facilities which will be
classified as significant and substantial harm facilities. The Coast
Guard has identified several fixed MTR facilities which are segments of
non-MTR facilities that have a total storage capacity of less than
42,000 gallons. The Environmental Protection Agency (EPA) has
determined that such non-transportation related facilities with a
storage capacity of less than 42,000 gallons associated with a MTR
facility are not considered as substantial harm facilities. However,
these MTR facilities are capable of transferring oil to or from a
vessel with a capacity of 250 barrels or more. The Coast Guard has
determined that these facilities could reasonably be expected to cause
substantial harm to the environment. These facilities must still submit
response plans; however, they are no longer classified as ``significant
and substantial harm'' facilities. Paragraph (c)(1) of Sec. 154.1015
has been amended to incorporate this change.
One comment suggested that facilities that transfer only oily water
mixtures should be classified as substantial harm facilities. The Coast
Guard disagrees. Although a facility may transfer only oil that is
mixed with water, the facility may transfer enough oil to reasonably be
expected to cause significant and substantial harm to the environment
if a discharge were to occur.
Another comment stated that the Coast Guard should clarify that
mobile facilities are the only facilities that are not classified as
significant and substantial harm facilities. Under the IFR, mobile
facilities are the only facilities which initially are classified only
as substantial harm facilities; however, under Sec. 154.1016, the COTP
may determine that other facilities may reasonably be expected to cause
substantial harm to the environment and may upgrade mobile MTR
facilities to significant and substantial harm facilities.
Additionally, the amended paragraph (c)(1) of Sec. 154.1015 of the
final rule, which modifies the threshold for significant and
substantial harm facilities, has increased the number of facilities
that will initially be classified only as substantial harm facilities.
One comment suggested that the Coast Guard provide guidance on how
to determine whether a facility is part of a complex. A facility is
part of a complex if the entire facility is regulated by more than one
Federal agency under section 311(j) of the FWPCA. Most MTR facilities
are part of a larger facility that has segments which are regulated by
agencies such as EPA, RSPA or the Minerals Management Service (MMS). If
a facility owner or operator is unable to determine whether his or her
facility is part of a complex, he or she may request guidance from the
COTP.
Two comments contended that the regulation should not apply to non-
petroleum oils. One comment specifically stated that the regulation
should not apply to facilities which handle animal and vegetable oils
because these oils are not toxic to the environment. The Coast Guard
disagrees. The response planning requirements of this regulation were
developed to ensure that facility owners or operators are prepared to
respond to an oil spill originating from their facility, regardless of
the type of oil spilled. The Coast Guard recognizes that certain non-
petroleum oils, including certain animal fats and vegetable oils, are
non-toxic in the marine environment; however, lethal acute aquatic
toxicity is not the sole factor considered in determining harm to the
environment. A discharge of animal fats or vegetable oils may cause
chronic effects for waterfowl and aquatic organisms. Proper response
planning for a discharge of non-petroleum oils will have a significant
effect in limiting harm to the environment. Therefore, facility owners
or operators handling non-petroleum oils at their facility are required
to prepare response plans under this regulation.
[[Page 7893]]
The Coast Guard has determined, based upon comments, that animal
fats and vegetable oils, and other non-petroleum oils will be addressed
separately from petroleum oils, and from one another, in the final
rule. The final rule removes the response planning requirements for
animal fats and vegetable oils, and other non-petroleum oils from
Sec. 154.1049 in the IFR and establishes two new subparts H and I,
containing requirements for these oils. Subpart H contains requirements
for animal fats and vegetable oils, while subpart I contains
requirements for other non-petroleum oils. Although new subparts have
been established for animal fats and vegetable oils, and other non-
petroleum oils, the response planning requirements for these oils are
not changed in the final rule.
One comment stated that a facility that is capable of transferring
oil to or from a vessel with a capacity of 250 barrels or more, but
that does not transfer to a vessel of this size should not be required
to submit a response plan. Although the Coast Guard has not lowered the
threshold for substantial harm facilities in the final rule, the
revised final rule permits the COTP to downgrade a facility. The COTP
is in the position to evaluate the individual situation of each
facility under his or her jurisdiction with respect to operational
history and other factors which would affect the facility's
classification. The COTP may downgrade a facility's classification,
acting either on his own or upon request of the facility's owner or
operator, if he finds that such action is warranted.
Section 154.1016 Facility Classification by COTP
The Coast Guard received four comments on this section. One comment
stated that the COTP should not be permitted to upgrade a facility
based on the facility's proximity to areas of economic importance and
environmental sensitivity. The comment contended that OPA 90 does not
permit such an action. Another comment stated that a facility's spill
history does not indicate that the facility is at greater risk for
future spills and, therefore, spill history should not be considered in
determining a facility's classification. The Coast Guard disagrees. OPA
90 permits the Coast Guard to require response plans for facilities
that could reasonably be expected to cause substantial harm and
significant and substantial harm to the environment. OPA 90 does not
define these terms; therefore, the Coast Guard must determine the
criteria used to distinguish these facilities. The Coast Guard has
adopted EPA's term ``fish and wildlife and sensitive environments'' to
refer to areas of environmental sensitivity. The Coast Guard has
concluded that a facility's proximity to fish and wildlife and
sensitive environments and its spill history are relevant factors in
determining whether a facility could reasonably be expected to cause
substantial harm or significant and substantial harm to the environment
in the case of an oil discharge.
Two comments stated that a facility owner or operator should be
permitted to appeal the COTP's decision to upgrade a facility. Under
Sec. 154.1075 of the IFR, a facility owner or operator is permitted to
request the COTP to review the initial facility classification. The
owner or operator may submit relevant data to the COTP to support his
or her argument. If the owner or operator is dissatisfied with the
COTP's decision, the owner or operator may appeal the decision to the
District Commander. The decision of the District Commander may be
appealed to the Commandant. This appeals provision is unchanged in the
final rule.
Under the IFR, the COTP was permitted only to upgrade a facility's
initial classification. Under the final rule, the COTP is permitted to
upgrade or downgrade the facility's classification. Upon written
request from the facility owner or operator to review the facility's
classification, the COTP may downgrade a facility from significant and
substantial harm to substantial harm or from substantial harm to a
status in which it is exempt from the regulation. This provides the
COTP with greater latitude to appropriately regulate his or her port
area. This change has prompted the renaming of this section to
``Facility Classification by COTP'' in the final rule.
Section 154.1017 Response Plan Submission Requirement
The Coast Guard received many comments on this section of the IFR.
Four comments requested the Coast Guard to clarify whether the FRP
regulations apply to inactive facilities. Under Sec. 154.100(a), the
applicability section for part 154, facilities in caretaker status are
exempt from the requirements of this part, with the exception of
certain safety requirements set out in Sec. 154.735.
Two comments stated that facility complexes should not be required
to submit response plans to more than one Federal agency for approval.
The comments further stated that all facilities that transfer oil over
water should be regulated exclusively by the Coast Guard. The Coast
Guard recognizes that submitting plans to several agencies for approval
may have been burdensome for those facilities whose options
necessitated submission of response plans to more than one Federal
agency. The initial delegation under Executive Order 12777 to issue
regulations and review and approve response plan to multiple Federal
agencies reflected agency expertise in the regulated industries and the
traditional jurisdiction of Federal agencies under section 311 of the
FWPCA. This delegation provided each agency with the opportunity to
review response plans and to ensure that the plans reflected industry
practices and were in compliance with statutory requirements.
Today, virtually every facility required to submit response plans
has already done so in compliance with the rules promulgated by the
appropriate agency. It has become apparent that some response plans
unnecessarily duplicate information contained in other plans. Federal
agencies are interested in streamlining the response plan preparation
and submission procedures to reduce significantly the burden when plan
revision and resubmission is required. The Coast Guard believes that
the ``One Plan'' or Integrated Contingency Planning concept has merit
and discussions are ongoing between industry, the appropriate Federal
agencies, and members of the National Response Team (NRT). The NRT is
developing guidance for preparation of integrated response plans that
will satisfy the regulatory requirements of various Federal agencies
while avoiding unnecessary and confusing duplication of standard
response procedures and organizational details. With the completion of
guidance on Integrated Contingency Planning, the Coast Guard will
accept plans developed in accordance with that guidance. The NRT is
also examining the feasibility of vesting response plan review in the
On Scene Coordinator. The NRT is discussing minimizing the number of
Federal agencies involved in reviewing a response plan for those
facilities that, due to their diverse nature, may have to prepare and
submit a response plan to more than one Federal agency. The Coast Guard
is committed to working with the NRT on these issues and working to
minimize the regulatory burden on facilities that have marine
transportation-related mode and non-transportation-related components.
[[Page 7894]]
Section 154.1020 Definitions
The Coast Guard received many comments on the definitions of the
terms used in the IFR. Some comments suggested clarification of certain
terms while others suggested the addition of terms. The following
discussion addresses only those definitions or issues on which the
Coast Guard received comment or made significant revisions.
Adverse weather. The Coast Guard received one comment on ``adverse
weather'' which suggested that wind, tides, and the number of daylight
hours be included as three additional environmental factors that
contribute to adverse weather conditions for a spill response. The
Coast Guard did not intend the listed conditions to be exclusive. To
address this comment's concern, the Coast Guard is adding language to
the definition of ``adverse weather'' to indicate that other relevant
factors including wind, tides, etc., should also be taken into account
when identifying response systems and equipment.
Availability (of response resources). The Coast Guard received one
comment which requested that this term be defined. The comment stated
that the definition should indicate that response organizations often
have contracts with many facilities and, as a result, there may be
instances where the contractor's obligations to one facility may limit
its ability to arrive at the scene of an oil spill at another facility
within the specified times. The Coast Guard recognizes that actual
availability of response resources may be limited by unforeseeable
events such as multiple, simultaneous oil spills. The Coast Guard
stresses that the requirements are not performance standards. They are
intended to be used to develop a plan for responding to a discharge of
oil to the maximum extent practicable in the existing conditions. The
Coast Guard recognizes that actual conditions may not permit the
arrival of resources within the prescribed timelines. The Coast Guard
concludes that there is no need to provide a definition.
Complex. The Coast Guard received one comment suggesting that it
clarify the meaning of ``complex'' and that the Coast Guard definition
be consistent with the definition in EPA regulations. A ``complex'' is
composed of facilities regulated by two or more Federal agencies, and
that are used, or intended to be used, to transfer oil to or from a
vessel. A ``complex'' may include marine transportation-related
portions and other non-marine transportation-related portions. The
Coast Guard has included a definition that is consistent with the FWPCA
and applicable EPA regulations.
Consistency with EPA regulations. Two comments stated that the
definitions in the Coast Guard regulation should be consistent with
those in the EPA regulation. Wherever relevant, the Coast Guard has
consulted other agencies and their regulations to ensure that the Coast
Guard's OPA 90 regulations do not conflict with those of other
agencies. Occasionally, the Coast Guard's definitions diverge from
similar definitions of other agencies. In those cases, the Coast Guard
has examined the other agency regulations and decided upon a different
approach for legal, policy, or technical reasons.
Environmentally Sensitive Area. The Coast Guard received one
comment suggesting that it add a definition of the term
``environmentally sensitive area'' to be consistent with EPA
regulations, the NCP, and OPA 90. The EPA has adopted the term ``fish
and wildlife and sensitive environment.'' For consistency, the Coast
Guard is adopting EPA's term and its definition. However, the Coast
Guard is adding economically important areas to the EPA definition. OPA
90 requires that response plans be consistent with the applicable Area
Contingency Plan (ACP). The ACPs are prepared by Area Committees
composed of qualified personnel from Federal, State and local agencies.
The Coast Guard has provided guidance to the Area Committees on the
preparation of ACPs. Coastal ACPs have been prepared and are available
for preparation of facility response plans. The Area Committees
identify, and prioritize for protection, specific locations that fall
under the category ``fish and wildlife and sensitive environments.''
The ACPs will be revised annually and will identify areas of economic
importance. The completed fish and wildlife and sensitive environments
plans will likely be geographic-specific annexes to the ACPs. The
National Oceanic and Atmospheric Administration (NOAA) published a
notice in the Federal Register on March 29, 1994 entitled ``Guidance
for Facility and Vessel Response Plans Fish and Wildlife and Sensitive
Environments.'' (59 FR 14714) NOAA's notice provides detailed guidance
which facility and vessel owners may use to supplement the information
contained in the applicable Coast Guard regulations. However, the ACP
will still be used to make the final determination regarding fish and
wildlife and sensitive environments.
Full-scale. The Coast Guard received five comments suggesting the
addition of the term ``full scale'' in order to clarify certain
requirements for spill drills. The comments proposed that the term mean
maximum participation by all levels of a facility's response
organization to test major portions of the plan with a high degree of
realism and extensive involvement. The Coast Guard extensively revised
Sec. 154.1055 of subpart F to reflect concerns expressed by comments,
as well as to bring the section into alignment with the vessel response
plan final rule and the applicable EPA regulations. Section 154.1055 is
now entitled ``Exercises'' and requires the owner or operator of a
facility to conduct exercises that will test the entire response plan
every 3 years. The requirements allow the owner or operator to exercise
different elements of the plan (e.g. qualified individual notification,
spill management team, equipment deployment) at different times.
However, the exercises must still test every element of the plan every
3 years and, in addition, an unannounced exercise must also be
conducted every 3 years. The revised Sec. 154.1055 also allows owners
or operators to fulfill the exercise requirements by complying with the
National Preparedness for Response Exercise Program (PREP). In view of
these changes, a definition of ``full scale'' is not necessary.
Functional. The Coast Guard received five comments suggesting that
the term ``functional'' be added to the definitions section in the
final rule to clarify certain requirements for spill drills. The
comments proposed that the term be defined as the limited exercising of
specific functions, such as a command and control, internal
coordination, external coordination, and tests of the functional
planning and response capabilities of personnel and systems. In
response to these, and other comments, the Coast Guard has extensively
revised Sec. 154.1055 which was entitled ``Drills'' in the IFR and is
now entitled ``Exercises.'' The Coast Guard concludes that the
Exercises section now adequately addresses the meaning of the term
functional. The functional areas are laid out in
Sec. 154.1035(b)(3)(iii) of subpart F. Response plans must contain an
organizational structure incorporating the listed functional areas.
Section 154.1035(b)(3)(iv) requires response plans to also contain job
descriptions for the spill management team members in each functional
area identified in the organizational structure described in
Sec. 154.1035(b)(3)(iii).
Group IV oil. The Coast Guard received several comments indicating
that the definition for Group IV oil included Group V oil. The Coast
Guard has revised the definition of Group IV
[[Page 7895]]
oil which is found in the definition of ``persistent oils'' to mean oil
having a specific gravity equal to or greater than .95 and less than or
equal to 1.0.
Higher volume port areas. The Coast Guard received one comment
which proposed to add Cook Inlet, Alaska to the list of higher volume
port areas. The Coast Guard classified higher volume port areas based
upon a study of the relative volumes of oil handled, stored or
transported. The U.S. Army Corps of Engineers reports on ``Waterborne
Commerce of the United States'' provided the statistics for 34 port
areas. The decision to classify some ports as higher volume was based
upon the Coast Guard's analysis of the data from the reports. The data
revealed a distinct break point. Cook Inlet, Alaska falls below the
break point and, as such, does not meet the criteria for designation as
a higher volume port area.
Marine transportation-related facility. The Coast Guard received
three comments on the definition of MTR facility. One comment requested
that the Coast Guard clarify the definition by citing specific types of
facilities to which it refers. The Coast Guard gave examples of MTR
facilities in the preamble to the IFR (e.g., fixed onshore MTR
facilities include marinas; and mobile MTR facilities include tank
trucks and railroad tank cars). Two other comments requested
clarification of Coast Guard and RSPA jurisdiction over pipelines at
MTR facilities. As stated in the preamble to the IFR, the definition of
transportation-related and non-transportation-related facilities
appeared in a 1971 Memorandum of Understanding (MOU) between the
Environmental Protection Agency and the Department of Transportation.
The MOU appears in the appendix to 40 CFR part 112. The Coast Guard
definition of MTR is drawn directly from the MOU. The division point
between the transportation-related portion of a pipeline, and the non-
transportation-related portion of a pipeline is the first design
discontinuance (valve) inside the secondary containment surrounding the
tanks in the non-transportation-related portion of the facility. The
Coast Guard finds that MTR is clearly defined in accordance with the
appropriate legal authority. In a particular situation, if the location
of the division between the MTR portion and the non-MTR portion is
unclear, then the appropriate Federal officials, including the Coast
Guard COTP, should be consulted. As set forth in the definition, these
officials may agree to a specific location for the separation.
Maximum extent practicable. One comment asserted that the
definition of ``maximum extent practicable'' is too rigid and does not
allow for the flexibility that Congress intended. According to the
comment, location, size, configuration, and other similar factors,
should be considered in developing response plans. The Coast Guard has
used a number of factors in determining the need to prepare and submit
a response plan. The planning process also considers other factors as
provided in Secs. 154.1035 and 154.1045.
Maximum most probable discharge. The Coast Guard received four
comments on the definition of maximum most probable discharge
suggesting that the Coast Guard revise the maximum most probable
discharge volume of 1,200 barrels or 10 percent of the volume of the
worst case discharge to be consistent with the EPA maximum most
probable discharge volume of 36,000 gallons. As stated in the preamble
to the IFR, the Coast Guard based its maximum most probable discharge
definition upon historical spill data which indicated that 99 percent
of oil spills from coastal zone facilities were approximately 1,200
barrels or less. The Coast Guard concludes that the existing definition
is appropriate because it protects the environment while not overly
burdening small volume facilities.
Nearshore area. The Coast Guard received two comments on the
definition of nearshore area. One comment stated that the definition
should exclude areas which also meet the definition of rivers and
canals. Another comment requested clarification of the relationship
between nearshore areas and other terms such as ``close-to-shore'' in
Appendix C and ``close to shore response activities in shallow water''
in Sec. 154.1045(e). The definition of ``Nearshore area'' does not
presently include areas which meet the definition of rivers and canals
because ``Rivers and canals'' is a subset of the definition of ``Inland
areas'' not ``Nearshore areas.'' The precise meaning of ``close-to-
shore'' is specified at the point where the term is used. Close-to-
shore refers to waters six feet or less in depth.
Notification drill. The Coast Guard received five comments that
suggested the addition of the term ``notification drill'' to the
definition section of the final rule. The comments suggested defining
the term to mean a test of the facility's system of notifying or
activating, according to the facility's response plan, appropriate
agencies, the facility spill management team, the oil spill removal
organization, and the next higher level of the facility owner's or
operator's organization. A notification drill tests the facility's
ability to start activation of its plan. To be successful, a
notification drill need not result in calls to the top of the
facility's response organization. The Coast Guard has extensively
revised Sec. 154.1055 which was previously entitled ``Drills'' and is
now entitled ``Exercises.'' The revised section includes a ``Qualified
Individual notification exercise'' and specifies that compliance with
the National Preparedness for Response Exercise Program (PREP) fulfills
all exercise requirements. The Coast Guard concludes that these changes
adequately address the points raised by the comments.
Oil. The Coast Guard received seven comments on this definition.
One comment requested that the Coast Guard narrow the definition of oil
to exclude substances which contain small percentages of oil such as
ship bilge and ballast water. One comment indicated that the definition
of oil in the regulations should be consistent with the definition in
OPA 90, which excludes hazardous substances subject to CERCLA. Four
comments stated that oil should be limited only to petroleum oils which
are liquid under the range of ambient conditions which exist at a
facility and which are not considered CERCLA substances. OPA 90 did not
amend the definition of oil in section 311 of the FWPCA. The Coast
Guard's definition of ``oil'' is the same definition used by the FWPCA.
The statutory definition refers to oil in any form. That includes oily
bilge and ballast water because they have been shown to be sources of
oil pollution and discharges may result in substantial harm to the
environment. The Coast Guard has determined that it is appropriate for
response plans to include provisions covering oils which may not be
liquid in all conditions. Such oils may sink to the bottom or remain
suspended in the water column. In either case, they may cause
substantial harm to the environment if not cleaned up as soon as
possible. The Coast Guard concludes that the current definition of oil
meets both the letter and the spirit of the FWPCA and therefore is not
changing the definition of oil.
Another comment stated that the response plan regulations should
not apply to edible oils. The comment contended that if edible oils
were excluded from the regulations, the owner or operator of a facility
handling edible oils still would be required to report and cleanup a
spill under the Clean Water Act (CWA). The Coast Guard definition of
``oil'' is the same definition that is used by the FWPCA. That
definition includes edible oils. The
[[Page 7896]]
Coast Guard has created new subparts in the final rule to distinguish
non-petroleum oils, including edible oils such as animal fats and
vegetable oils, from petroleum oils. The scientific data currently
available to the Coast Guard strongly indicate that these oils may have
an adverse impact upon the environment that is similar to the impact of
petroleum oils. As a result, the Coast Guard is not exempting non-
petroleum oils from response planning in the final rule. The Coast
Guard will continue to assess its position as further data become
available on the subject.
Oil spill removal organization. The Coast Guard received two
comments on the definition of oil spill removal organization which
suggested that the definition be revised to be more specific. The Coast
Guard crafted the definition if oil spill removal organization to be
flexible enough to apply to varying types of organizations which may be
called upon to respond to a discharge of oil while complying with OPA
90 requirements. A more specific definition, while useful to some in
the industry, might exclude organizations which are able to provide
useful and needed response capabilities. The Coast Guard is not
changing the definition of oil spill removal organization and suggests
that any questions regarding the suitability of a particular
organization be directed to the COTP for the area in which the facility
is located.
Other non-petroleum oil. The Coast Guard has added a definition of
``other non-petroleum oil.'' Other non-petroleum oil means a non-
petroleum oil of any kind that is not generally an animal fat or
vegetable oil.
Persistent oil. The Coast Guard received two comments on the
definition of persistent oil. Both comments indicated that the
definition proposed in the IFR does not account for oils that have a
specific gravity greater than 1.0 that do not sink in salt water. The
comments suggest that the definition be revised to include all products
which could reasonably be expected to sink in the environment in which
they are likely to be discharged. The definition of persistent oils is
subdivided based upon specific gravity into Groups II, III, IV and V.
The Coast Guard finds that further subdivision is unnecessary because
the definition currently includes all oils with a specific gravity of
greater than 1.0, regardless of whether or not they sink in salt water.
Furthermore, the Coast Guard concludes that, in combination with other
factors, even those oils referred to in the comments are very likely to
sink in salt water.
Private shore-based personnel. The Coast Guard received one comment
suggesting the addition of this term to the regulation. The comment
indicated that certain Occupational Safety and Health Administration
(OSHA) standards are not enforced. The Coast Guard is not tasked with
enforcement of OSHA standards except in very specific instances. In the
context of pollution control regulations such as OPA 90, the Coast
Guard is not responsible for enforcing OSHA standards. Therefore, it is
unnecessary for the Coast Guard to add this term to the final rule.
Rivers and canals. The Coast Guard received 8 comments on this
definition. All eight comments questioned the use of the 12 foot
project depth as a criterion for determining whether a waterway is a
river or canal. One comment suggested that a project depth of 18 feet
be applied as the standard. Four comments suggested that the COTP
should be given the discretion to determine which waterways will be
determined to be rivers or canals. The 4 comments also stated that the
terms rivers and canals should be applied only to certain areas with
definite geographical demarcations. Two comments requested
clarification on whether the 12-foot project depth criterion applies
only to artificially created waterways. Additionally, these 2 comments
indicated that the definition of rivers and canals excludes certain
rivers. The definition of rivers and canals applies to all waterways
with a project depth of 12 feet or less including both naturally and
artificially occurring ones. The Coast Guard finds that the 12-foot
depth is appropriate to define the inland areas where shallow draft
vessels may call at MTR facilities and has not changed it in the final
rule. The COTP has the authority to redefine specific operating
environments within his or her jurisdiction. This provisions is
continued in the final rule.
Specific gravity. Several comments encouraged the Coast Guard to
define specific gravity in the final rule. The Coast Guard agrees and
has used the definition of specific gravity found in ASTM Standard D
1298 entitled ``Standard Practice for Density, Relative Density
(Specific Gravity), or API Gravity of Crude Petroleum and Liquid
Petroleum Projects by Hydrometer Method.''
Spill management team. The Coast Guard received 5 comments on this
definition. Four comments stated that the definition of spill
management team should reflect the allowance for tiered spill
management teams. Another comment indicated that the FRP regulation
should be consistent with the VRP regulation which permits the spill
management team function to be fulfilled by an organization outside the
planning area of the spill. A ``tiered'' spill management team is not
prohibited by the regulations as they appeared in the IFR and remain in
the final rule. The definition is identical in both the VRP and FRP
final rules to ensure consistency in spill management team
requirements.
The Coast Guard received 5 comments suggesting that it define the
term ``corporate spill management team.'' One comment suggested that
this term be defined to mean a national team of operational and
functional experts and consultants responsible for moving quickly to a
spill site to replace or support a facility response team in managing a
response. The Coast Guard also received 5 comments requesting that it
add the term ``facility spill management team'' to the regulation. The
comments suggested that the term be defined to mean a team responsible
for initiating and managing a response to a spill to its conclusion or
until a team member from a higher tier in the overall response
organization is activated and on-scene to support the facility team or
manage the response until its conclusion.
The Coast Guard concludes that the existing definition of ``spill
management team'' already incorporates the elements that the comments
suggest. The Coast Guard therefore finds that it is both unnecessary
and undesirable to complicate the regulation by subdividing the
definition of spill management team. Section 154.1035(b) contains
detailed requirements regarding plan content including the spill
management team. The spill management team may include all persons
relevant to an effective spill response except Federal, State and local
authorities. It may include local, as well as regional or national
corporate officials, operational, as well as functional experts, and
representatives of OSROs. The local or on-site spill response team
members can, and should, be prepared to integrate other persons, such
as regional and national corporate officials, into their spill response
team structure.
Table top. The Coast Guard received 5 comments requesting that it
add the term ``table top'' to the final rule to clarify certain spill
drill requirements. The comments suggested that the term be defined as
a verbal walk-through to discuss action to be taken during simulated
emergency situations, designed to elicit constructive discussion by the
participants without time constraints. A table top drill does
[[Page 7897]]
not involve the movement of equipment or people. The Coast Guard has
extensively revised Sec. 154.1055 which was previously entitled
``Drills'' and is now entitled ``Exercises.'' The revised section
specifies that compliance with the National Preparedness for Response
Exercise Program (PREP) fulfills all exercise requirements. The Coast
Guard concludes that the changes adequately address the points raised
by the comments.
Tier. The Coast Guard received one comment which stated that the
use of ``tier'' in the IFR was unclear, and suggested that the Coast
Guard define the term in the final rule. The Coast Guard agrees and has
defined ``tier'' in the final rule.
The requirements for response to a worst case discharge to the
maximum extent practicable are based on the tiering of response
resources. The concept of ``tier'' has two primary components: The
amount of equipment and personnel required for a response to a worst
case discharge, and the amount of time in which these response
resources are required to be on-scene from the time of discovery of an
oil discharge. Tiering allows for the arrival of response resources at
various stages of the response effort. Tiering the mobilization of
response resources recognizes the need for a rapid initial response to
an oil spill, yet allows for the identification of response resources
from outside the area of the facility to meet the response resource
planning requirements.
Sections 154.1045(e) and 154.1047(a)(1) of subpart F of the final
rule require a facility owner or operator to identify, by contract or
other approved means, equipment and personnel to respond to the
facility's worst case discharge for Group I-IV oils and Group V oils,
respectively. Appendix C and especially Tables 2, 3, and 4 provide
specific guidance on calculating the amount of response equipment
required by these sections. Table 4 provides mobilization factors used
to calculate the amount of response resources required for on-water
recovery for each tier. Table 5 establishes caps to the amount of
response resources for which a facility owner or operator must contract
in advance. Caps have been established for response resources required
for Tiers 1, 2, and 3. The caps recognize the current limits on
technology and private removal capabilities. The caps are for planning
purposes only; in no way do the caps limit the amount of resources
which a facility owner or operator may be required to mobilize during
an actual spill response.
Section 154.1045(f) of subpart F establishes three time tiers for
the on-scene arrival of response resources for the different operating
environments for Group I-IV oils.
Section 154.1025 Operating Restrictions and Interim Operating
Authorization
The Coast Guard received 10 comments on this section of the
regulation. One comment requested that the Coast Guard clarify the
requirement for facilities to submit response plans meeting the
requirements of Sec. 154.1030 for review and approval to the Coast
Guard COTP and the requirement to operate in full compliance with the
approved plans.
Section 154.1017 requires all facilities which could reasonably be
expected to cause at least substantial harm to the environment to
prepare and submit response plans to the Coast Guard. Only facilities
which could reasonably be expected to cause significant and substantial
harm to the environment are required to submit response plans for
review and approval by the Coast Guard. Section 154.1025(b) requires
all facilities that are required to prepare response plans to operate
in compliance with their plans.
The Coast Guard has added to the final rule a provision that
requires facility owners or operators making initial response plan
submissions after May 29, 1996, to comply with the requirements of the
final rule. The Coast Guard is not requiring facility owners or
operators who submitted response plans under the IFR or NVIC to revise
their response plans to conform with the requirements of the final rule
until the plan's 5-year resubmission date. However, a facility owner or
operator who has prepared a response plan under the NVIC or the IFR may
comply with any of the provisions of this final rule by revising the
appropriate section of the previously submitted plan in accordance with
the revision and amendment procedures in Sec. 154.1065. An owner or
operator who elects to comply with all of the requirements of the final
rule must resubmit the entire plan for review and approval, if
appropriate, in accordance with Sec. 154.1060.
One comment suggested that Sec. 154.1025(d) be revised to give the
Coast Guard authority to prohibit a facility from operating if the COTP
determines that a previously approved plan has not been properly
revised or updated. The Coast Guard finds that Sec. 154.1065 provides
the COTP with adequate authority to enforce the requirements for
response plan amendments and revisions. Under Sec. 154.1065(c), the
COTP may require a facility owner or operator to revise a response plan
at any time if the COTP determines that the plan does not meet the
requirements of this regulation.
Section 154.1025(d) provides four specific circumstances under
which a facility may not handle, store, or transport oil including a
COTP determination that owner-certified response resources or a
submitted response plan do not meet the requirements of the subpart.
One comment indicated that the Coast Guard should limit its review
and approval of response plans to 30 days for those plans submitted by
February 18, 1993, the deadline for plan submission under the IFR.
Limited resources prevented the Coast Guard from guaranteeing a review
of every submitted response plan within 30 days. However, to facilitate
the operations of facilities requiring Coast Guard review and approval
under Sec. 154.1025(c), the Coast Guard permitted these facilities to
continue operations for up to 2 years from the date of plan submission.
This procedure is in accordance with Sec. 311(j)(5)(F) of the FWPCA.
The same comment suggested that a facility owner or operator should
have no more than 30 days to make corrections to a plan if the plan is
not approved by the COTP. Because of the varying degrees of plan
deficiencies, the Coast Guard has determined that the COTP must have
the flexibility to specify the period in which the facility owner or
operator could reasonably be expected to correct the deficiencies.
One comment stated that, to be consistent with EPA and RSPA
regulations, the Coast Guard should not formally review the letter from
a facility owner or operator certifying the availability of response
resources. Conversely, another comment indicated that a facility owner
or operator should be required to certify in writing not only that he
or she has ensured the availability of the necessary response
resources, but also that the response resources are capable of being
on-scene within the specified response times. The Coast Guard has
determined that, until it is able to complete the review of the
submitted response plans, its review and acceptance of the
certification letters is its primary means of ensuring that facilities
are in compliance with the statutory provisions of OPA 90 requiring the
identification of response resources. The Coast Guard requires facility
owners or operators to indicate in the certification letter that the
response resources identified are in compliance with subpart F, G, or H
as appropriate.
[[Page 7898]]
Section 154.1028(a) requires response resources to be capable of being
on-scene within specified times.
One comment indicated that response contractors probably would not
have all of the spill response equipment in stock that is necessary to
meet the August 18, 1993 deadline in the IFR, particularly the
equipment used for recovering oil in shallow waters. The comment
requested that the Coast Guard exempt this type of equipment from the
response plan requirements. The Coast Guard found that at the time of
the comment there was no evidence to indicate that facility owners or
operators were unable to identify adequate response resources for
recovering oil in shallow water.
Another comment suggested that the Coast Guard clarify the language
in Sec. 154.1025(c) permitting interim operating requirements prior to
Coast Guard approval of a response plan. The Coast Guard has updated
and clarified Sec. 154.1025(c). Additionally, the comment indicated
that this paragraph should apply also to substantial harm facilities.
Section 154.1025(c) applies only to the owners or operators of
facilities for which the Coast Guard must review and approve response
plans. Under section 311(j) of the FWPCA and 33 CFR 154.1017(b), only
significant and substantial harm facilities are required to submit
response plans for Coast Guard review and approval.
Section 154.1026 Qualified Individual and Alternate Qualified
Individual
The Coast Guard received 9 comments on this section of the IFR.
Four of the comments contended that the Coast Guard should permit the
qualified individual to be identified in the plan by his or her title,
rather than his or her name. Two comments suggested that the Coast
Guard establish a mechanism by which the qualified individual can be
chosen from a group of individuals among whom the responsibility of the
qualified individual rotates. Another comment stated that the facility
owner or operator should not be required to provide documentation to
the qualified individual in order to activate his or her authority as
the qualified individual. The Coast Guard finds that the amount of
authority vested in the qualified individual warrants that the response
plan identify the specific individual(s) assuming this position. For
this reason, the Coast Guard also requires the qualified individual to
have documentation which clearly indicates his or her role in the
facility's response activities.
Five comments requested clarification on the responder immunity
provisions in Sec. 154.1026 (e) and (f). Three of the comments
specifically requested that the Coast Guard clarify who is immune from
liability under the provisions. Two comments suggested that the Coast
Guard address the immunity of the qualified individual in the
regulatory text. One comment suggested that the potential liability for
the qualified individual is too significant to attract many capable and
qualified persons for the position.
As discussed in the preamble to the IFR, section 311(c)(4) of the
FWPCA provides that only a responsible party is liable for the removal
costs or damages which result from actions taken or omitted in the
course of rendering care, assistance, or advice consistent with the
National Response Plan or as otherwise directed by the President. A
person does not become a responsible party under section 311(c) of the
FWPCA by being designated as a qualified individual for response plan
purposes. However, a person whose acts or omissions are grossly
negligent, or who engages in willful misconduct may, as a result,
become liable for the resulting damages. The Coast Guard does not have
the authority to grant immunity to the qualified individual and,
therefore, cannot establish immunity provisions in the final rule.
However, the Coast Guard does recognize that the qualified individual
is not responsible for the adequacy of response plans, nor is he or she
responsible for contracting response resources beyond the authority
delegated from the facility owner or operator. These points are
reflected in the regulatory text.
Seven comments addressed the facility owner's or operator's ability
to substitute a person from a higher level of management for the
designated qualified individual. Four comments requested that the Coast
Guard state this option in the regulatory text. Additionally, three
comments questioned whether the person from a higher level of
management who is assuming the responsibilities of the qualified
individual is considered to be the qualified individual during an
actual spill response. The Coast Guard does not intend to limit the
discretion of the facility owner or operator to select any qualified
person to assume the full range of responsibilities of the qualified
individual. A facility owner or operator may, at any time, substitute
the designated qualified individual or alternate qualified individual
with a person from a higher organizational level who meets the
requirements of Sec. 154.1026. In order for that person to be
recognized as the qualified individual, the facility owner or operator
must provide the individual with a document designating them as the
qualified individual as required by Sec. 154.1026(c). The Coast Guard
has changed the language in Sec. 154.1026 to clarify that the Qualified
Individual or an Alternate Qualified Individual must be available on a
24-hour basis and must be able to arrive at the facility within a
reasonable time.
One comment requested a more stringent English language requirement
for the qualified individual and suggested that the qualified
individual be required not only to speak fluent English, but also be
required to read, comprehend, and write in English at a level of high
school equivalency. Although the regulation states only that the
qualified individual must speak fluent English, the Coast Guard
concludes that this requirement will restrict the designation of the
qualified individuals to persons who can communicate effectively with
the On-Scene Coordinator during a response effort.
One comment objected to the requirement that both the qualified
individual and the alternate qualified individual be available on a 24-
hour basis. The preamble to the IFR stated that the Coast Guard's
intent is to ensure that either the qualified individual or the
alternate qualified individual be available to respond to an oil spill
on a 24-hour basis. In response to this comment, the Coast Guard has
reworded Sec. 154.1026(a) to make it clear that either the qualified
individual or the alternate, but not both, must be available on a 24-
hour basis. This conforms with both the intent stated in the IFR
preamble and the related section of the VRP rule.
One comment stressed that the qualified individual should be
knowledgeable about not only the financial aspect of an oil spill
response, but also the technical issues pertaining to an oil spill
response. The Coast Guard agrees that familiarity with response methods
is an asset to a Qualified Individual and encourages facility owners or
operators to designate such persons as qualified individuals; however
the ability to commit response resources is the primary requirement.
Under the regulations, the facility owner or operator is required
to identify a qualified individual who is capable of arriving at the
facility in a reasonable time. To ensure this, the Coast Guard has
amended this section to require the qualified individual to be located
in the United States. This issue was previously discussed in the
preamble to the IFR.
[[Page 7899]]
Section 154.1028 Methods for Ensuring the Availability of Response
Resources by Contract or Other Approved Means
The Coast Guard received 11 comments on this section of the IFR.
Four comments suggested that Sec. 154.1028(a)(1), the first means of
identifying response resources by contract or other approved means, be
revised to indicate that an oil spill removal organization is unable to
guarantee the availability of identified response resources to respond
to a spill at a facility. The regulations require the owner or operator
of a facility to ``ensure'' the availability of response resources
because this is the terminology used in the statute. The Coast Guard
has emphasized that response plans are planning documents, not
performance criteria, and that neither the owner or operator nor the
spill removal organization can guarantee the availability of resources
at all times. Acts of God, extremes of weather, labor disputes, the
prior commitment of resources, and other events may preclude
performance as planned. The Coast Guard also expects certain caveats to
be placed in a contract indicating that the response resources
identified are not guaranteed to perform response activities at a
facility. The Coast Guard expects that the contract will provide for
prompt notification of impaired ability to perform and that, when
appropriate, facility owners and operators will seek alternate response
resources. Notification of changes in response resources may be
required under Sec. 154.1065(b)(3).
Another comment stated the Coast Guard should require a facility
owner or operator who ensures the availability of response resources by
certifying his or her active membership in an oil spill removal
organization under Sec. 154.1028(a)(3) also to certify that the oil
spill removal organization has committed to respond to an oil spill
from the facility. The Coast Guard finds that a facility's active
membership in a spill removal organization that has identified
specified personnel and equipment required by the regulation to arrive
at the specified times is adequate assurance that the spill removal
organization will respond to an oil spill at the facility.
Four comments questioned whether an oil spill removal organization
that has identified specific response resources to respond to an oil
spill at one facility can list the same resources to respond to a spill
at another facility. The Coast Guard recognizes that there are current
limits on the amount of available response resources in the U.S.
Facilities would be unable to operate due to their inability to
identify available response resources which were not contracted for by
other facilities. In addition, prohibiting oil spill removal
organizations from contracting response resources for more than one
facility is economically prohibitive for oil spill removal
organizations.
One comment suggested that the Coast Guard remove the fourth method
of ensuring by contract or other approved means in Sec. 154.1028(a)(4).
Section 154.1028(a)(4) permits the facility owner or operator to ensure
the availability of response resources by providing a document that:
(1) Identifies response resources to be provided by an oil spill
removal organization in the stipulated response times in specific
geographic areas; (2) sets out the parties' acknowledgment that the oil
spill removal organization intends to commit the resources in the case
of a spill; (3) permits the Coast Guard to verify the availability of
the response resources through tests, inspections, and drills; and (4)
is referenced in the response plan. The comment indicated that this
provision is not necessary. The Coast Guard disagrees. Section
154.1028(a)(4) provides the owner or operator of a facility with an
alternate means of identifying and ensuring the availability of
response resources. This flexibility may prove to be economically
essential for certain facilities.
Four comments stated that an oil spill removal organization should
not be required to list the names of the response personnel who are
identified to be available to respond to an oil spill. The comments
contend that OSROs are responsible for maintaining sufficient numbers
of trained personnel to respond to any potential spills to which it has
committed to respond. The Coast Guard agrees. An OSRO is not required
to list the names of persons who are identified to be available to
respond to an oil spill; however, an oil spill removal organization
must specify the response personnel available to respond to an oil
spill.
One comment indicated that a signed service agreement should be
sufficient to meet the requirements of Sec. 154.1028(a)(5). As long as
the ``signed service agreement'' meets the requirements of
Sec. 154.1028 it is acceptable to the Coast Guard. Such an agreement,
to be valid under Sec. 154.1028(a)(5), would need to identify specified
equipment and personnel available within the applicable stipulated
response times; and, the OSRO would need to consent to being identified
in the plan.
Another comment stated that the Coast Guard should require a
facility owner or operator to ensure that identified response resources
not only are available to arrive at stipulated times, but also are
capable of sustaining a response effort. The comment indicated that the
Coast Guard should analyze the adequacy of response resources on a
systems basis to ensure that all identified resources are capable of
functioning together. The Coast Guard finds that the response resource
requirements are sufficient as set forth in this final rule. The
requirements are for planning purposes only and are not intended to be
performance standards. Where the Coast Guard has determined that it is
both appropriate and necessary it has included times for sustained
response effort (see Appendix C).
One comment indicated that a facility that operates only on a
seasonal basis should not be required to ensure the availab
FR Doc. 96-4274 Response Plans for Marine Transportation-Related Facilities
ility of
response resources when it is not operating. Under the provisions of
Sec. 154.100(a), a facility which is in caretaker status is exempt from
the requirements of this regulation and, therefore, is not required to
ensure the availability of response resources when it is in caretaker
status.
One comment suggested that the Coast Guard provide a mechanism for
contractors to exercise some control over where they are named as
response resources. This comment expanded upon its suggestion by
stating that the Coast Guard should require some documentation which
validates the relationship between the contractor and the owner or
operator. Section 154.1028 provides for five methods of ensuring the
availability of response resources, including OSROs, by contract or
other approved means. At a minimum, the OSRO must provide written
consent to being identified in a response plan. Under some conditions,
a written contractual agreement must be executed between the OSRO and
the owner or operator of the facility. These contracts must be made
available for review upon request by the Coast Guard. The Coast Guard
contends that this provides adequate documentation that the proper
relationship exists between the OSRO and the owner or operator of the
facility.
One comment argued that contracts should be required as an
outgrowth of comprehensive risk analyses at each potential spill site
rather than the result of an intuitive need to have resources
available. The Coast Guard disagrees. OPA 90 requires the preparation
and submission of a response plan for an onshore facility that, because
of its
[[Page 7900]]
location, could reasonably be expected to cause substantial harm to the
environment by discharging into or on the navigable waters or adjoining
shorelines. The OPA 90 Conference Report (Report 101-653) states that
even small onshore facilities could result in substantial harm under
some circumstances. Therefore, the requirements to prepare and submit a
response plan should be broadly applied. Along with other Federal
agencies, the Coast Guard has established criteria to be considered in
designating a facility as substantial harm. These factors include, but
are not limited to: type and quantity of oils handled in bulk, facility
spill history, proximity to public and commercial water supply intakes;
proximity to navigable water and proximity to areas of economic
importance.
Section 154.1029 Worst Case Discharge
The Coast Guard received a total of 16 comments on this section of
the IFR. Ten comments addressed the relationship between the Coast
Guard's definition of worst case discharge and the term as it is
defined by other Federal agencies. Four comments indicated that the
Coast Guard's definition of worst case discharge should be the same as
the definition found in EPA's response plan regulations. Five comments
indicated the need for consistency among Coast Guard, EPA, and RSPA
definitions of worst case discharge, and suggested that the Coast Guard
adopt RSPA's definition. The Coast Guard disagrees with these comments.
Because the Coast Guard, EPA, and RSPA regulate different portions of
an oil complex, the amount of oil in a worst case discharge volume from
each of these portions of the complex will vary depending on the nature
of the facility's operations. Coast Guard regulations address only the
MTR portion of the complex.
Three comments indicated that the Coast Guard should adopt the EPA
and RSPA policy of giving credit to the facility for the use of
secondary containment and other preventive measures. Seven comments
reiterated the point that Coast Guard regulations should encourage the
use of preventive measures. The Coast Guard strongly encourages
facilities to employ pollution prevention measures including secondary
containment. However, the nature of MTR facilities makes secondary
containment impractical in most cases and therefore very uncommon. For
this reason, the Coast Guard does not require MTR facilities to have
secondary containment. The Coast Guard does not give credit for such
measures because, while these measures will reduce the risk to the
environment from an oil spill, they will not eliminate it altogether.
Subparts A and B of 33 CFR part 154 already contain pollution
prevention regulations. The Coast Guard considers additional pollution
prevention regulations to be outside the scope of this regulation.
The Coast Guard received several comments on the amount of the
worst case discharge volume. All comments indicated that the worst case
discharge volume, as calculated using the formula in
Sec. 154.1029(a)(2), should be reduced. Many of the comments stated
that the Coast Guard's definition of worst case discharge should not
include a total loss of a facility's oil storage capacity and suggested
that it be based on factors such as spill history, the capacity of the
largest single pipeline, or the capacity of pipelines to the single
largest docking pier. Additionally, four comments indicated that the
definition exceeded the congressional intent of this term--the largest
foreseeable discharge from a facility. The Coast Guard disagrees.
Section 4201(b) of OPA 90 defines a worst case discharge as the largest
foreseeable discharge (from a facility) in adverse weather conditions.
The Coast Guard has interpreted this to mean the largest probable
discharge that could occur from a facility and has determined that the
worst case discharge includes the volumes of oil from all pipelines
between the dock and the storage tanks. Additionally, the formula for
calculating the worst case discharge in Sec. 154.1029(a)(2) accounts
for the time to detect a spill from the piping and the time to secure
the operation.
One comment contended that the Coast Guard should not deny the
validity of a response time calculation without substantial evidence
that it cannot be accomplished in the time stated. The Coast Guard
disagrees. Section 154.1045 and appendix C of the final rule provide
requirements on which to base on-water and on-land response times. A
facility owner or operator proposing to use more rapid response times
bears the burden of proving the validity of the alternate calculation.
One comment suggested that both human and mechanical systems should
be considered for detecting spills during transfer operations. The
comment notes that, in the preamble to the IFR for this section, the
Coast Guard referred only to ``fail-safe features designed into the
operation such as leak detection and mechanical methods of isolating
segments of the pipeline.''
The Coast Guard is concerned that undue reliance on fail-safe
features may lead to an underestimation of necessary response resources
in the event of a discharge from the facility. The Coast Guard
concludes that it is reasonable to base the worst case discharge
planning volume on the failure of such fail-safe features since it has
been the Coast Guard's experience that these features do not always
work as expected.
One comment argued that worst case discharge calculation methods
should be maintained separate from the facility response plan to keep
the document from becoming too bulky. The Coast Guard agrees. It is not
required that the response plan contain the method or numbers used in
calculating the worst case discharge. Only the volume of the average
most probable, maximum most probable, and worst case discharges need be
provided. However, providing the numbers used to arrive at the worst
case discharge will facilitate review of the response plan.
Section 154.1030 General Response Plan Contents
The Coast Guard received 10 comments on the requirements for
general response plan contents. Two comments expressed approval of the
plan format requirements established in the IFR and indicated that
other Federal agencies should adopt these requirements. Another
comment, however, expressed that the order of the sections required in
the plan is inappropriate and should be changed. The Coast Guard has
reviewed the response plan formatting requirements and has determined
that the current response plan format facilitates easy use of the
response plan; therefore, the Coast Guard has made no changes to the
formatting requirements in the final rule. Section 154.1030(e),
however, does permit a facility owner or operator to submit a response
plan that does not follow the format specified in the regulation as
long as the plan is supplemented with a detailed cross-reference
section identifying the location of the applicable sections required by
the regulation.
One comment stated that a facility owner or operator should be
permitted to reference previously established procedures in the plan's
appendices rather than restating them in the plan. The Coast Guard
disagrees. The Coast Guard intends for the response plan to serve as
the primary document referenced by facility personnel during a spill
response. In the event of an oil discharge, facility personnel should
be required to refer to only one comprehensive manual for instruction
[[Page 7901]]
on spill response activities and procedures. The regulation, however,
does not preclude a facility owner or operator from referencing
previously established material in the plan as long as the information
required by the regulation is contained in the appropriate section on
the response plan.
Many comments addressed the requirements for response plan
contents. One comment suggested that response plans be expanded to
include measures for prevention, control, containment, and restoration
as well as methods for cleanup and disposal. The regulation currently
addresses these issues, with the exception of prevention and
restoration methods. Section 4202 of OPA 90, the authorizing provision
for response plan requirements, grants the Coast Guard authority to
issue regulations addressing only spill response activities. It does
not address spill prevention or restoration and, therefore, these
issues are not addressed by this regulation.
Four comments suggested that the plans address company or site-
specific information. Section 154.1035(g) requires facility specific
information to be included as an appendix to the plan. A facility owner
or operator may also include company specific information as a separate
appendix to the plan.
One comment suggested that the Coast Guard reduce the amount of
information required in the plan and indicated that the Coast Guard
should require only vital emergency response information in the plan to
streamline the initial notification process. The regulations establish
minimum content requirements for response plans and require information
that the Coast Guard has determined to be essential for the plan to be
of significant use by facility personnel. The Coast Guard, however,
encourages facility owners or operators to develop response plans which
incorporate flowcharts and checklists to facilitate the use of the plan
in an emergency.
Several comments addressed the requirement for response plans to be
consistent with the NCP and the ACPs, particularly as it applies to the
identification of sensitive areas under Sec. 154.1035(b)(4). Some
comments pointed out the difficulties of developing response plans that
are consistent with the ACPs when many of the ACPs are not yet
published. In the preamble to the IFR, the Coast Guard recognized that
many of the ACPs were not complete when the IFR was published. The
Coast Guard indicated that, in these cases, the facility owner or
operator would be required to identify the fish and wildlife and
sensitive environments described in the applicable local contingency
plans. Additionally, Appendix D of part 154 was developed to assist
facility owners or operators in identifying fish and wildlife and
sensitive environments which could be impacted by a worst case
discharge from the facility. Because the coastal ACPs are now complete,
in this final rule the Coast Guard has replaced appendix D of part 154
which provided guidance in identifying fish and wildlife and sensitive
environments with a new appendix D which covers training. On March 29,
1994, the National Oceanic and Atmospheric Administration (NOAA) of the
Department of Commerce published a notice establishing guidelines for
the identification of fish and wildlife and sensitive environments to
further assist facility owners or operators in identifying areas
requiring additional protection from discharged oil (59 FR 14714). This
interim guidance was to be used by a facility owner or operator until
the applicable ACPs were completed.
Since the publication of the NOAA guidance, all of the ACPs have
been completed. Facility owners or operators must ensure that their
response plans are in accordance with the ACP in effect 6 months prior
to initial plan submission or the annual plan review required under
Sec. 154.1065(a). The facility owner or operator who submits plan is
not required to, but may, at the owner or operator's option, conform to
an ACP which is less than 6 months old at the time of plan submission.
One comment expressed that the ACPs should be open for public
comment because of their impact on the response plans. Any member of
the public may attend meetings held on the development of the ACP.
One comment urged the Coast Guard to provide guidance as to how an
owner or operator could cover more than one facility in a response
plan. Facility response plans must be developed for a specific facility
and it is not practical for a plan to cover more than one facility.
Portions of a corporate response plan may be appropriate for inclusion
in several facility response plans.
Two comments urged that the facility response plan be part of a
more comprehensive plan and not necessarily a stand-alone document. The
Coast Guard disagrees. The facility response plan must be
comprehensive. While it may reference other documents, it must
demonstrate adequate response planning and outline facility response to
a discharge from the facility.
Section 154.1035 Specific Requirements for Facilities That Could
Reasonably be Expected to Cause Significant and Substantial Harm to the
Environment
The Coast Guard received 19 comments on the response plan
requirements for significant and substantial harm facilities. The
following discussion is divided to address the specific sections of the
response plan on which comments were received.
General. The Coast Guard received 2 comments addressing
Sec. 154.1035(a), the response plan requirements for significant and
substantial harm facilities, in general. One comment stated that the
regulations require too much detail to be continued in the response
plans. Another comment suggested that the response plans be required to
address planning and prevention programs for spills that occur most
frequently. The Coast Guard disagrees. As explained in the discussions
on the requirements of Sec. 154.1030, the regulations require
information that the Coast Guard has determined to be essential for a
response plan to be of significant use to facility personnel for all
reasonably foreseeable discharges. The plans address only spill
response activities; they do not address spill prevention. Although the
Coast Guard encourages facility owners or operators to establish spill
prevention measures, they are beyond the scope of this regulation. The
Coast Guard has issued pollution prevention regulations in 33 CFR part
154.
Notification procedures. Six comments addressed
Sec. 154.1035(b)(1), requirements for notification procedures in the
response plan. One comment suggested that the Coast Guard require the
facility owner or operator to report to the initial notification if
there was an early arrival of response equipment and whether response
equipment was on-site during the transfer. The comment indicated that
this would assist the Coast Guard On-Scene Coordinator (OSC) in
assessing the need for additional response resources and in determining
an appropriate response strategy for the spill.
Under this section, the facility owner or operator is required to
develop a notification sheet, which contains the information identified
in Figure 1, to be transmitted to Federal, State, or local agencies in
the initial and follow-up notifications of an oil discharges. The Coast
Guard limited the required information to the minimum necessary. The
facility owner or operator is not
[[Page 7902]]
required to use the same format as Figure 1, but must develop a
notification sheet that includes space for the information contained in
Figure 1. The notification sheet may include any additional information
that the facility owner or operator determines could be helpful to
responding agencies. For this reason, the Coast Guard will not require
additional information to be included on the notification sheet. The
Coast Guard, however, urges the facility owner or operator to provide
agency officials with any information that will assist them in
developing appropriate spill response strategies.
Five comments question whether the facility owner or operator is
required to notify each individual in the spill management team and oil
spill removal organization. This is not required. However, the facility
owner or operator must notify someone in the management team and a
representative of the oil spill removal organization. The Coast Guard
encourage facility owners or operators to coordinate with the spill
management team and oil spill removal organization to designate a
primary, and an alternate, point-of-contact for notifications in each
organization.
Facility spill mitigation procedures. The Coast Guard received two
comments on Sec. 154.1035(b)(2), facility spill mitigation procedures
which addressed spill prevention measures, secondary containment, and
requirements for complexes. These issues have been addressed in
discussions on Secs. 154.1030, 154.1029, and 154.1017 respectively.
Facility response activities. The Coast Guard received two comments
on Sec. 154.1035(b)(3) which suggested that the Coast Guard require an
OSRO to provide trained personnel necessary to continue operation not
only for the first 7 days of the response, but for the total time
needed to complete the spill response or until the OSRO is released
from its response obligations by the COTP. The comments indicated that
7 days is too short to complete response activities for a large oil
spill. The Coast Guard agrees that 7 days is not long enough to
complete a response to a large spill; however, the requirements of this
section are for planning purposes only. The facility owner or operator
is required only to identify resources for the first 7 days of the
spill response; however, he or she is required to ensure that adequate
response resources are available until all spill response activities
are concluded and the resources are dismissed by the OSC.
One of the comments also suggested that the Coast Guard require the
use of the National Interagency Incident Management System (NIIMS)
Incident Command System (ICS) to standardize incident command in the
United States. Facility owners or operators should refer to the ACPs
for guidance on the use of NIIMS ICS.
The Coast Guard has revised Sec. 154.1035(b)(3)(iii) and (iv) of
the final rule to be consistent with the language found in comparable
sections of the VRP regulation. These revisions do not change the
substantive requirements of this section.
Sensitive environments. The Coast Guard received 14 comments
addressing Sec. 154.1035(b)(4), requirements to protect sensitive
environments.
Two comments stated that the definition of sensitive environments
should be the same in both the Coast Guard and EPA response plan
regulations. As previously stated in the discussion on Sec. 154.1020,
the Coast Guard has added the term ``fish and wildlife and sensitive
environments'' to the definitions in the final rule. This term also has
been adopted by EPA. Accordingly, this subsection has been renamed
``Fish and Wildlife and Sensitive Environments'' in the final rule.
Several comments addressed the identification of fish and wildlife
and sensitive environments, particularly the requirement that these
areas be consistent with those identified in the ACPs. These comments
have been addressed in the preamble discussion on Sec. 154.1030.
Many comments indicated that the requirement in the IFR to identify
areas of economic importance results in the identification of certain
areas that have no significant environmental sensitivity. As an
example, one comment indicated that certain areas such as
transportation routes are economically important, but not
environmentally sensitive. As this comment illustrates, this
requirement is not intended to result in the identification of every
area of economic importance. It is, however, intended to protect those
areas that are not otherwise identified as environmentally sensitive,
such as recreational beaches, parks, and aquaculture sites, industrial
water intakes and other areas important to the economic well-being of
the surrounding community. These areas of economic importance will be
identified by the ACPs.
One comment suggested that the Coast Guard include water intakes
within fish and wildlife and sensitive environments. The Coast Guard
defers to the ACPs for such identifications.
Two comments indicated that this section of the regulation does not
provide enough guidance on determining the adequacy of the planning
distances and the response equipment identified for the protection of
fish and wildlife and sensitive environments. The comments recognized
the utility of spill trajectory models, but indicated that they all are
not equally reliable. Under the regulation, facility owners or
operators are not limited to using spill trajectory models to determine
the location of fish and wildlife and sensitive environments that may
be affected by a discharge of oil from their facility.
Section 154.1035(b)(4)(iii)(B)(1) of the final rule provides
facility owners or operators with a basic formula for calculating the
distances that discharged oil will flow from the facility under certain
conditions at specified times. The Coast Guard recognizes that this
formula may not take into account certain geographic and weather-
related conditions that normally exist in some ports which may affect
the distances that discharged oil may travel from the facility;
therefore, the COTP will determine whether the appropriate factors have
been accounted for in the identification of fish and wildlife and
sensitive environments. The adequacy of the identified resources also
will be assessed by the COTP.
The final rule also provides facility owners or operators with a
third means of complying with the requirements of this section. In
addition to using the formula in Sec. 154.1035(b)(4)(iii)(B)(1) or
developing a spill trajectory model, facility owners or operators are
permitted to use the formula in appendix C of Attachment C-III of EPA's
FRP final rule that is most appropriate for the facility (59 FR 34070;
July 1, 1994).
Three comments addressed the planning distances required under the
IFR. Two comments suggested that the Coast Guard expand the provision
in Sec. 154.1035(b)(4)(iii)(B)(1) of the IFR, which requires the
identification of response resources for areas that will be impacted in
48 hours in non-tidal waters, to non-persistent oils. Because of the
rapid rate at which non-persistent oils evaporate, the Coast Guard is
only requiring facility owners or operators to plan to respond to areas
reached by non-persistent oil in 24 hours in non-tidal waters at
maximum current.
Conversely, one comment stated that the planning distances required
by this section are significantly greater than is warranted by the
potential impact of the facility's worst case discharge. The Coast
Guard disagrees and contends that the effects of tides and currents on
discharged oil warrant these planning distances.
[[Page 7903]]
Two comments addressed response activities for wildlife protection.
One comment suggested that response plans be required to address issues
such as wildlife dispersal, collection, cleaning, rehabilitation, and
recovery. Another comment suggested that response personnel be required
to undergo special training for wildlife response. Although the Coast
Guard encourages facility owners or operators to identify resources for
wildlife response, it will not require these resources to be identified
by contract or other approved means. The applicable ACP identifies
these private and public sector resources.
One comment states that the facility owner or operator should be
permitted to estimate the amount of shoreline requiring protection and
suggested that the estimate be reviewed and approved by the COTP. The
regulation requires the owner or operator to identify required
quantities of boom for the protection of fish and wildlife and
sensitive environments. Facility owners or operators will be expected
to identify enough boom to adequately protect each of the fish and
wildlife and sensitive environments identified in their plan.
Another comment indicated that 1 day should be reduced from the
planning requirement if the response equipment is determined to be
capable of arriving in less than half of the maximum required arrival
time. The Coast Guard encourages the early arrival of response
resources; however, it does not plan to reduce the requirements of this
section.
Hazard Evaluation and Spill Scenarios. The Coast Guard received a
total of four comments on these two topics. The comments indicated that
the final rule should include information on hazard evaluations and
spill scenarios. Sections 154.1035(c) and (d) has been reserved for
these topics to ensure consistent formatting of Coast Guard and EPA
response plan regulations and to prevent plans which contained
information required by the EPA regulations from being rejected by the
Coast Guard. However, because the Coast Guard does not intend to
provide guidance on hazard evaluation or spill scenarios at this time,
it has removed these reserved paragraphs from the final rule and has
redesignated the remaining paragraphs of this section accordingly. It
will continue to accept plans prepared to comply with both EPA and
Coast Guard response plan regulations.
Training and Exercises. The Coast Guard received one comment on
Sec. 154.1035(c) of the regulation. It is addressed in the preamble
discussion on Sec. 154.1055.
Appendices. The Coast Guard received one comment on
Sec. 154.1035(e) which contended that the information in the appendices
is redundant with information found elsewhere in the plan and suggested
that the appendices should not be required. The Coast Guard disagrees.
However, it recognizes that some of the information in the appendices
may be found in other sections of the plan; telephone numbers need not
be listed elsewhere in the response plan if provided in the appendices.
Facility specific information. The Coast Guard received three
comments on Sec. 154.1035(e)(1). Two comments suggested that the Coast
Guard should not require material safety data sheets for materials
which are not handled by the MTR portion of the facility. The Coast
Guard agrees and does not require this information for substances that
are not handled by the MTR portion of the facility. The third comment
addressed firefighting capabilities and is discussed in the appropriate
section of Sec. 154.1045.
Equipment lists and records. The Coast Guard received one comment
on the Sec. 154.1035(e)(3) requirement to include equipment lists and
records in the response plan. The comment stated that the Coast Guard
should require the identification of equipment that would be used to
respond to the maximum most probable discharge in addition to the
equipment used to respond to the average most probable discharge, as
currently required by the regulation. The Coast Guard agrees and, under
the final rule, requires facility owners or operators to list all the
major equipment belonging to the oil spill removal organization for
response to a maximum most probable discharge.
Four comments were received addressing the issue of contractor
classification and one of these comments also addressed classification
as outlined in NVIC 12-92. One comment urged the Coast Guard not to
require plans to list specific quantities of equipment when listing a
Coast Guard classified oil spill response organization (OSRO) for
recovering volumes above the caps. This same comment urged that the
Coast Guard and the EPA extend the classification program to include
both coastal and inland contractors, arguing that this extension would
enhance uniformity and improve response capabilities for large oil
spills.
Section 154.1035(g)(3)(iii) of the final rule states that it is not
necessary to list response equipment from an OSRO when the OSRO has
been classified by the Coast Guard and its capacity has been determined
to equal or exceed the response capability needed by the facility. The
Coast Guard will accept the listing of an appropriate OSRO for response
resources up to and beyond the listed caps. The EPA has determined that
it will utilize the OSRO classification system established by the Coast
Guard. An OSRO may be classified for certain size discharges and
operations in certain specified geographic areas. Both coastal and
inland contractors may apply for classification by the Coast Guard.
One comment argued that industry rather than the Coast Guard should
certify contractors. The Coast Guard finds that this is impractical.
The Coast Guard is concerned that inconsistencies may occur in the
classification of OSROs unless it is conducted by one organization. At
the present time, the Coast Guard is the appropriate agency to conduct
on OSRO classification program. The Coast Guard plans to explore using
third parties to inspect or approve OSROs.
Section 154.1040 Specific Requirements for Facilities That Could
Reasonably be Expected to Cause Substantial Harm to the Environment
The Coast Guard received 2 comments on this section of the IFR. One
comment indicated that the requirement for significant and substantial
harm facilities to identify a corporate organizational structure that
would be used to manage the oil spill response under
Sec. 154.1035(b)(3)(iii) should be applied to substantial harm
facilities. Additionally, the comment suggested that the Coast Guard
require contacts for wildlife response resources; however, another
comment stated that these facilities should be required to use legally
binding contracts for the identification of all responses resources.
The Coast Guard disagrees. The requirements of this section were
developed to lessen the regulatory burden and economic impact on
substantial harm facilities. The Coast Guard has determined that the
costs of identifying a corporate organizational structure and
contracting for response resources outweigh the benefits for
substantial harm facilities.
The IFR required the owners or operators of substantial harm
facilities to have at least 200 feet of containment boom immediately
available to respond to the average most probable discharge. The IFR
was unintentionally more stringent for substantial harm facilities than
for significant and substantial harm facilities. However, under the
final rule, the requirement has been reduced to permit facility owner
or operators to identify 200 feet of boom and the means
[[Page 7904]]
of deploying it that is capable of arriving at the spill site within 1
hour of the detection of the spill.
Section 155.1041 Specific Response Information to be Maintained on
Mobile MTR Facilities
The Coast Guard received one comment on this section of the IFR
which addresses contracts or training permits for wildlife response.
This issue is addressed in the discussion of fish and wildlife and
sensitive environment requirements in Sec. 154.1035.
Section 154.1045 Response Plan Development and Evaluation Criteria for
Facilities That Handle, Store, or Transport Group I Through Group IV
Petroleum Oils
The Coast Guard received several comments addressing this section
which concerns the inclusion of certain information in the response
plans for facilities handling, storing, or transporting Group I through
Group IV petroleum oils. Two of these comments addressed this section
generally. One comment argued that the Coast Guard should require
contracts or training and permits, for wildlife response. As indicated
in the discussion on fish and wildlife and sensitive environments in
Sec. 154.1035, the Coast Guard will not require these resources to be
contracted for in the final rule.
Another comment contended that the regulations should provide
further guidance on matching response equipment with the grade of
petroleum oil spilled, arguing that the groups of petroleum oil do not
necessarily correspond to the grades of petroleum oil and that the
grade spilled is not necessarily the grade recovered. Response
equipment must be certified for the grade of oil handled, stored or
transported by any facility for which the equipment is identified as a
response resource. The Coast Guard expects that discharged petroleum
oil will weather and that the grade of petroleum oil discharged will
weather sufficiently to be recovered by response equipment.
Reclassification of bodies of water. Six comments were received
specifically addressing the COTP's reclassification of specific bodies
of water as being operating environments needing more or less stringent
response resource planning in Sec. 154.1045(a)(3). Four comments argued
that significant wave height may be such that it is unsafe to conduct
recovery operations, making more response equipment moot. These
comments suggested that the regulation allow less response equipment if
operation would be unsafe in wave conditions exceeding the significant
wave height criteria during more than 35 percent of the year. The Coast
Guard requires the facility owner or operator to plan to recover the
oil in the operating environment in which the facility is located. As
stated in Sec. 154.1010, the regulation establishes a planning standard
and not a performance standard. Decisions on whether to deploy
equipment at the time of a discharge will remain with the COTP in
consultation with the responsible party and OSRO.
Two comments argued that significant wave height is only one
criterion which should be considered during the reclassification
determination. These comments stated that the presence of debris, ice,
currents, wind, and darkness should also be determining factors. These
comments further argued that the standard for reducing classification
should be the presence of prevailing wave conditions not exceeding the
significant wave height criteria for the less stringent operating
environment during 85 percent of the year while the standard for
increasing classification should remain the presence of prevailing wave
conditions exceeding the significant wave height criteria for more than
35 percent of the year.
The Coast Guard has retained the percentages from the IFR. The 35
percent threshold provides balance between anticipated area
environmental conditions and equipment available to operate in those
conditions. Setting a lower threshold would require new areas to
stockpile equipment with the capability of operating in unlikely
conditions. The rule requires that ice conditions, debris, and other
conditions as determined by the COTP must also be considered in the
area where the facility operates.
Requirements pertaining to average most probable discharges. The
Coast Guard received one comment which responded to the requirements of
Sec. 154.1045(c). It argued that the Coast Guard should clarify that
facilities are not responsible or obligated to respond to spills from
vessels they do not own or operate. While the Coast Guard requires the
facility to plan for responding to an average most probable discharge
at the facility, it remains the responsibility of the owner or operator
of the source of the discharge to initiate effective response at the
time of the discharge. The regulation does not require the facility to
respond to a discharge from a vessel and the regulation has not been
changed to state otherwise.
Under Sec. 154.1045(c) (1) and (2) of the IFR, facility owners or
operators are required to identify certain equipment such as
containment boom and means of deploying and anchoring the boom, oil
recovery devices, and recovered oil storage capacity that are capable
of arriving at the facility within specified times to respond to the
average most probable discharge. Upon review of the IFR, the Coast
Guard determined that the phrase ``at the facility'' does not indicate
that this response equipment must be available at the scene of the oil
discharge in the specified times. Accordingly, the Coast Guard has
revised these provisions of the final rule to require the
identification of response equipment that is capable of arriving at the
spill site within the times specified by this section. This change also
applies to comparable sections in Sec. 154.1047 of subpart F,
Sec. 154.1225 of subpart H, and Sec. 154.1325 of subpart I.
Requirements pertaining to response to maximum most probable
discharges. The Coast Guard received three comments in response to the
requirements of Sec. 154.1045(d). One comment argued that the planned
response time for possible spills in the Great Lakes should not be
lower than it is for other bodies of water. The Coast Guard disagrees
and has retained the 6-hour requirement for response to a maximum most
probable discharge. The Great Lakes are unique, self-contained, bodies
of fresh water especially vulnerable to spills. Because of this, it is
especially important that the response capability be available to
respond rapidly. The maximum most probable discharge response
capability provides a base capability that can be deployed rapidly to
the scene of a discharge to mitigate its effects.
Several comments argued that the Coast Guard should allow resources
located in one or more COTP zones to be moved to another zone as part
of a response effort. The Coast Guard expects that response resources
may be shifted in response to large pollution incidents. The rule does
not prohibit this shifting of resources. It may be necessary for the
facility owner or operator to confirm the availability of other
response resources or those response resources identified in the
response plan above the caps. The Coast Guard reserves the right to
invalidate a plan due to the absence of available response resources to
respond to a maximum most probable discharge or the worst case
discharge. However, under the final rule, the COTP may impose
operational restrictions on a case-by-case basis, such as limitations
on the number of transfers at the facility, or, where appropriate, may
permit the facility to operate with temporarily modified response plan
[[Page 7905]]
development and evaluation criteria (e.g., modified response times,
alternate response resources, etc.).
The Coast Guard has made minor organizational changes to this
section of the final rule to clarify the planning requirements for the
maximum most probable discharge. These changes more clearly indicate
that resources identified to respond to the maximum most probable
discharge include all equipment and personnel identified to respond to
the average most probable discharge.
Requirements pertaining to response to a worst case discharge to
the maximum extent practicable. The Coast Guard received 3 comments
responding to the requirements of Sec. 154.1045(e). One comment argued
that owners and operators should be required to plan only for a worst
case discharge.
The Coast Guard's authority to regulate is broader than OPA 90.
Section 311(j)(1)(C) of the FWPCA authorizes the Coast Guard to require
planning for discharges other than the worst case. Based on the
recommendations of the Oil Spill Response Plan Negotiated Rulemaking
Committee, the Coast Guard determined that the rule also should address
operational discharges. The Coast Guard is using its FWPCA authority to
require planning for spills other than a worst case discharge.
Response times and tiers. The Coast Guard received 12 comments
addressing the response time and tier requirements for worst case
discharges (Sec. 154.1045(f)). Two of these comments dealt with the
issue of giving credit for early arrival of response resources. One
comment argued in favor of this proposal and suggested that such credit
take the form of a reduction of monetary liability for a spill, a
reduction in liability for natural resource damage assessments, or a
reduction in drill requirements. One comment argued against issuing
credit for early arrival. This comment specifically argued that credit
should not be given for dispersants if such credit would result in
planning to use a lesser amount of mechanical recovery equipment during
a spill. The other comment argued that the Coast Guard should encourage
early arrival of response equipment but that it should not issue credit
for meeting an early or minimum arrival time.
The rule is written to require the arrival of resources in a timely
manner to contain and remove discharged oil before it has the
opportunity for greater dispersal. The Coast Guard cannot lessen the
monetary liability or the liability for damage to natural resources
based on the arrival times of response resources. The early arrival of
these resources will lessen the likelihood of damage to natural
resources.
The use of dispersants is a valid response technique in certain
circumstances. A facility that handles, stores, or transports Group II
or III petroleum oils can receive up to 25 percent credit against on-
water recovery capability in any environment with year-round
preapproval for use of dispersants. The response plan must address the
arrival of these dispersants within 12 hours. The Coast Guard's
position is that the rule strikes a proper balance in planning for the
use of dispersants and mechanical recovery.
One comment addressed the tiering of response resources. The
comment indicated that this approach is not useful because it does not
allow for an initial response with all available resources. The tiering
requirements provide a maximum time in which certain response resources
are capable of arriving at the scene of a petroleum oil spill; they do
not preclude the early arrival of response resources and, therefore, do
not preclude an initial spill response with all available resources.
The same comment also indicated that the evaluation of the
equipment's recovery capacity should not be based on the equipment's
operability in the different operating environments because those
conditions may not exist during an actual spill response. The Coast
Guard recognizes that the conditions and assumptions on which a
response plan is based may not exist during an actual spill response.
However, to develop an effective response plan, a facility owner or
operator must identify and plan to respond in the conditions which
normally exist in the port or at the facility. As Sec. 154.1010
indicates, the regulation establishes a planning standard and not a
performance standard. During an actual spill response, a final
assessment as to the type of equipment to be deployed for response to a
discharge will be made by the COTP in the consultation with the
responsible party and OSRO.
Eight comments addressed various issues concerning the amounts of
time allotted for responding to an oil spill. Two comments argued that
facilities in higher volume port areas and the Great Lakes should plan
using 48-hour response times for Tier 3 response resources. Two
comments urged the Coast Guard to increase the Tier 1 response time to
12 hours as opposed to 6 hours for higher volume port areas. Four
comments argued that the response times should be the same regardless
of the location of the spill. These comments further contended that the
major reason for requiring shorter times should be for fish and
wildlife and sensitive environment purposes, which varies for vessels
but seems irrelevant for stationary facilities. Two comments argued
that the response times were too low in light of the levels agreed upon
at the Negotiated Rulemaking meetings. One of these comments urged the
Coast Guard to reconsider these response times because current response
times are difficult and expensive to achieve. One comment urged the
Coast Guard to review and revise the response times in light of
response capability. This comment also urged the Coast Guard to clarify
that response times apply to arrival on-scene rather than deployment of
response resources and argued that the Coast Guard should only require
first tier dispersants to be on-scene within 12 hours, with more
dispersants being available as needed.
The Coast Guard contends that the tiering concept is valid and
adequately approximates the availability of response resources. The
tiering process reflects the arrival of available response resources
from nearby and more distant locations. The response times in this rule
are different than those applicable to vessels. The response times for
vessels are predicated on responding to an incident at the outermost
boundaries of the applicable areas, including up to 6 hours on-water
transit of response equipment. Since MTR facilities are located on or
along the shoreline, it will not be necessary to account for extensive
over-water transit times. The response times provided in the final rule
are for the planned arrival of response resources at the MTR facility
which is the likely site of the initial cleanup activity and does not
account for on-water deployment time. Therefore, the transit times in
this final rule are less than those provided for vessel response plans.
One comment addressed the definition of tiers and urged the Coast
Guard to adopt the EPA terminology and definitions of tiers to avoid
confusion and duplication. The EPA and the Coast Guard have used the
same approach to the concept of tiering response resources. Tier has
been defined under Sec. 154.1020 of the final rule.
Identification of firefighting capability. The Coast Guard received
several comments on firefighting capability requirements
(Sec. 154.1045(j)). Because many of the requirements for firefighting
capability in this section also are contained in Secs. 154.1047 and
154.1049, comments addressing those sections also will be discussed.
[[Page 7906]]
Two comments suggested that the coordinator of firefighting
activities for a facility should be extremely familiar with the
facility and its operations. Additionally, one comment argued that
``sufficient firefighting capacity'' would be difficult to define and
should not be included in the rule. Another comment urged the Coast
Guard to develop more specific firefighting requirements.
The many variables involved in the design and construction of MTR
facilities, the products handled, and the conditions encountered in an
actual fire, preclude the development of a fixed definition or formula
for calculating ``sufficient firefighting capacity.'' The IRF and the
final rule require a facility owner or operator to provide an in-house
expert to work with the local and facility firefighting resources. This
in-house expert is responsible for verifying that the firefighting
resources are sufficient to respond to a worst case scenario. The Coast
Guard believes that this approach is flexible enough to be adapted to
the peculiarities of different facilities, and at the same time,
provides the best practical assurance that the firefighting resources
identified in the plan will be able to handle a fire or explosion
resulting in a facility's worst case discharge scenario.
One comment argued that firefighting should be addressed by the
facility itself along with its local fire department. As written, the
rule requires a facility owner or operator to work with local fire
departments through an in-house expert when developing and implementing
response planning requirements. The rule requires additional
firefighting capability, ensured by contract or other approved means,
only when both the facility's firefighting resources and the local
firefighting resources are inadequate.
One comment argued that petroleum oil fires are so rare that
firefighting contracts should not be required. The Coast Guard
disagrees. A facility owner or operator must be prepared to respond to
any situation which may cause or arise from a petroleum oil discharge
into the marine environment. Section 311(j)(5)(C)(iii) of the FWPCA
requires resources to remove, mitigate or prevent a discharge including
one caused by fire. The Coast Guard has consistently interpreted this
provision to authorize the requirement that response plans ensure the
availability of firefighting resources by contract or other approved
means.
One comment suggested that the Coast Guard cross-reference other
applicable firefighting sections of the regulation (Secs. 154.1047 and
154.1049). The Coast Guard has determined that these requirements
should be set out in each section for ease of reference.
Consistency with ACP(s). The Coast Guard received one comment on
Sec. 154.1045(k). This comment argued that according to the IFR, a
response method not mentioned in the ACP would be considered
appropriate to protect fish and wildlife and sensitive environments.
This comment suggested that the Coast Guard change the language of the
IFR to indicate that the response plan must be consistent with the
appropriate ACP.
The Coast Guard has revised this section of the final rule to state
that any plan submitted 6 months or more after the appropriate ACP is
published must be consistent with that ACP. A plan that is consistent
with that ACP must at least identify the fish and wildlife and
sensitive environments covered by the ACP; however, a facility owner or
operator who has identified additional fish and wildlife and sensitive
environments also may identify these areas in the plan. The IFR
provision was developed so that the facility owner or operator who
submitted a response plan prior to the publication of the ACP would not
be required to resubmit or amend the plan once the ACP was published or
at the time of each annual revision of the ACP. However, since the
publication of the IFR, all of the ACPs have been published; therefore,
all facility owners or operators making initial plan submissions under
the final rule, the required annual update, or resubmitting plans at
the plan's 5-year resubmission date will be required to submit plans
which are consistent with the appropriate ACP.
Future caps review process. The Coast Guard received seven comments
which addressed the provisions of Sec. 154.1045(m) regarding the review
of caps in the years 1998 and 2003. One comment argued that the Coast
Guard should delete the 1998 cap increases until the need for such
increases is assessed. This comment contended that the percentage
increase as noted currently in the regulations is arbitrary and instead
should be based on valid data.
One important goal of OPA 90 is to increase the overall oil spill
response capability in the United States. The Coast Guard believes that
setting the 1998 cap now provides a clear upper target for which
facility owners or operators and the oil spill response industry must
plan. The Coast Guard, however, will conduct an evaluation of the 1998
cap increase to determine if it remains practicable before it becomes
effective.
Four comments suggested that if the spill history of a facility
between 1993 and 1998 is consistently better than required, then the 25
percent increase in caps should not be required. These comments argued
that such an exemption would encourage a quick response to an oil
spill. Although the Coast Guard encourages rapid response to an oil
spill, it does not believe that exempting certain facilities from the
cap increases will expedite a facility's spill response. Additionally,
this option does not move toward Congress's goal to increase the
overall spill response capacity in the United States.
One comment suggested that planning caps be increased when the plan
is due for resubmission rather than in 1998. The Coast Guard has
determined that the planning caps will be increased in 1998 provided
that the required review confirms the practicability of the increases.
A facility owner or operator will not be required to incorporate these
caps into their plans until the Coast Guard completes the review.
One comment suggested that the caps be rejected because the Coast
Guard offers no rationale for the levels prescribed. This comment
further suggested that the Coast Guard reevaluate its approach to caps
and instead base it on an analysis of what would be a response to the
maximum extent practicable. Alternatively, this comment suggested that
the cap increases in Table 5 of the regulations would be acceptable if
the amounts were doubled initially.
As discussed in the VRP NPRM (57 FR 27514, June 19, 1992), the caps
set out in the IFR were established by the Coast Guard upon
recommendation by the Negotiated Rulemaking Committee. The Committee
recognized that the current limits on response technologies would
require a cap to be placed on the amount of response resources required
to be identified for responding to a petroleum oil discharge to the
maximum extent practicable. The caps established in the IFR reflect the
Coast Guard's assessment of the overall response capability that can be
achieved in the United States by 1998 taking into account factors such
as anticipated advances in skimming efficiencies and technology, the
development of high rate response techniques, and other applicable
response technologies.
Identification of equipment above Tier 3 cap. One comment was
received addressing this provision. It argued that the capability may
not exist to meet this requirement. Through its discussions with
representatives of the spill response industry, the Coast Guard has
determined that adequate response
[[Page 7907]]
resources are currently available to enable facility owners or
operators to meet this requirement. The final rule requires the
identification of response equipment above the Tier 1 and 2 caps, as
well as the Tier 3 cap. Since there is no requirement to contract for
these resources, this is not a significant change. Response plans
submitted prior to the IFR, following the guidance in NVIC 7-92,
readily met this requirement.
Section 154.1047 Response Plan Development and Evaluation Criteria for
Facilities That Handle, Store, or Transport Group V Petroleum Oils
The Coast Guard received three comments on this section which
requires the inclusion of certain information in response plans for
facilities involving Group V petroleum oils. One comment addressed this
section generally, asking for clarification of the term ``the impact of
such discharges'' in paragraph (c)(4) of this section which requires
the identification of equipment necessary to assess the impact of a
worst case discharge of Group V petroleum oils to the maximum extent
practicable. The physical characteristics of Group V petroleum oils
make them likely to sink when spilled. As a result, traditional
response techniques such as containing the spread of the oil on the
surface of the water are often ineffective against these petroleum
oils. The Coast Guard has required equipment to assess the impact of
Group V petroleum oil discharges because that impact cannot be
ascertained by the usual methods such as visual examination. The impact
of discharges of Group V petroleum oil will only be detectable through
the use of such methods as sonar or sampling equipment which can, for
example, ascertain what petroleum oil has sunk to the bottom or remains
suspended in the water column.
Response time for deployment of response equipment. One comment was
received which concerned the provisions in Sec. 154.1047(d) regarding
the required response time for deployment of equipment. This comment
argued that the 24-hour response time would not necessarily be the best
for heavy petroleum oils since they are best recovered after hardening.
This comment further argued that the Coast Guard should design more
appropriate response times for Group V petroleum oils in general and
asphalt in particular. The Coast Guard has designed the response times
to ensure that an effective response is made while taking into account
the different properties of the various petroleum oils, as well as the
different natures of the MTR facilities and their operating
environments. The Coast Guard recognizes that Group V petroleum oils
react differently from other petroleum oils and this is why the Coast
Guard separated these oils into a different category. The Coast Guard
believes that the 24-hour response time is appropriate given the varied
nature of Group V petroleum oils themselves, as well as the varied
environments and conditions in which a discharge might occur.
Firefighting capability. The Coast Guard received one comment
addressing the requirements for firefighting capability contained
within Sec. 154.1047(e). This comment argued that ``sufficient
firefighting capacity'' would be difficult to define and should not be
included in the rule. This comment further argued that firefighting
should be addressed by the facility itself along with its local fire
department. Identical comments were also made to Secs. 154.1045 and
154.1049. See Sec. 154.1045 of this preamble for the Coast Guard
response.
Section 154.1049 Response Plan Development and Evaluation Criteria for
Facilities That Handle, Store, or Transport Non-Petroleum Oil
Firefighting capability. The Coast Guard received one comment
addressing the requirements for firefighting capability contained
within Sec. 154.1049(e) of the IFR. This comment argued that
``sufficient firefighting capacity'' would be difficult to define and
should not be included in the rule. This comment further argued that
firefighting should be addressed by the facility itself along with its
local fire department. Identical comments also were made to
Secs. 154.1045 and 154.1047. See Sec. 154.1045 of this preamble for the
Coast Guard response.
Non-Petroleum Oils. The Coast Guard received comments addressing
the issue of whether the requirements set forth in the IFR for
petroleum oils should apply to animal fats and vegetable oils and other
non-petroleum oils. The comments proposed that animal fats and
vegetable oils should be more clearly differentiated from petroleum
based oils. The comments also suggested allowing unique response
procedures for non-petroleum oil spills.
In support of their proposals, the comments provided an industry
sponsored study entitled ``Environmental Effects of Releases of Animal
Fats and Vegetable Oils to Waterways'' and an associated study. The
study claimed that the presence of these oils in the environment does
not cause significant harm. The study reached its conclusion based upon
its assertions that animal fats and vegetable oils are not toxic to the
environment; are essential components of human and wildlife diets;
readily biodegrade; and are not persistent in the environment like
petroleum oils. The industry study also found that these oils can coat
aquatic biota and foul wildlife, causing matting of fur or feathers
which may lead to hypothermia; and that animal fats and vegetable oils
in the environment have a high Biological Oxygen Demand which could
result in oxygen deprivation where there is a large spill in a confined
body of water that has a low flow and a low dilution rate.
The comments acknowledged that the International Maritime
Organization (IMO) Subcommittee on Bulk Chemicals recently recognized
the potentially harmful effect on birds from contact with floating
animal fats and vegetable oils discharged from vessels. The comments
also conclude, based upon Coast Guard data, that the likelihood of a
non-petroleum oil spill of a magnitude to cause environmental harm is
extremely small. Additionally, the comments noted the differences in
the average size of the vessels which carry petroleum and non-petroleum
oils.
In the preamble to the VRP IFR, the Coast Guard disagreed with
comments on the VRP NPRM which claimed that edible oils pose less
relative risk to the environment. The environmental effects of
discharges of non-petroleum oils are clearly documented and in many
respects are similar to the environmental effects of discharges of
petroleum oils.
In letters to the docket, the Department of the Interior (DOI), the
National Oceanic and Atmospheric Administration (NOAA), and the U.S.
Fish and Wildlife Service (FWS) discussed the environmental effects of
discharges of animal fats and vegetable oils and other non-petroleum
oils. DOI, NOAA and FWS all concluded that these oils pose risks to the
marine environment when spilled.
The agencies attributed the detrimental effects of non-petroleum
oils to the similarity in physical properties between petroleum and
non-petroleum oils. The effects outlined by DOI and NOAA include
physical coating of bird feathers and mammal fur leading to
hypothermia, a loss of buoyancy, and subsequent morality. All three
agencies also confirmed the industry report's conclusion that
discharges of non-petroleum oils can result in increased Biological
Oxygen Demand in receiving waters, thereby decreasing available oxygen
in the
[[Page 7908]]
affected waterbody and often resulting in fishkills. NOAA also stated
that coconut and palm oils are very viscous and when spilled in most
coastal waters would behave like Crisco (a hydrogenated animal fat)
probably persisting for over a decade.
The Fish and Wildlife Service letter specifically responded to the
industry sponsored study. The FWS expressed great concern over the
veracity of many of the study's conclusions. The FWS characterized the
industry study as ``misleading, weak and erroneous'' and stated that
``key facts have been misrepresented, are incomplete or are omitted,''
and that ``[t]he biggest oversight of the (industry study) is the
insignificance given to the fouling potential of the edible oils.''
The FWS acknowledged that there are differences between petroleum
and non-petroleum oils including different toxicity levels. It pointed
out that physical fouling is similar for both petroleum and non-
petroleum oils, and additionally, that the removal of non-petroleum
oils can be more difficult and strenuous for the wildlife because, in
many instances, complete removal can only be accomplished with scalding
hot water and excessive washing. The FWS also stated that wildlife
rehabilitators consider edible oils and fats to be some of the most
difficult substances to remove from wildlife because the low viscosity
of these oils allows deeper penetration into the plumage of fur,
creating a more thoroughly contaminated animal.
The FWS was extremely critical of the industry study for suggesting
that ingestion of edible oils is harmless to wildlife. The FWS stated
that the study misleads uninformed readers by not clarifying that these
oils, if consumed in large quantities, will cause harm to organisms
through means other than toxicity. For example, according to the FWS,
the ingestion of large quantities of non-petroleum oils can cause lipid
pneumonia, diarrhea, and dehydration in birds or other wildlife which
try to clean these oils from their feathers or coats by preening. This
problem is magnified, also according to the FWS, by the fact that these
oils do not have a repugnant smell or iridescent appearance to frighten
wildlife away, therefore making it more likely that wildlife will come
in contact with them during a spill.
In addition to the agency letters, the Coast Guard has placed in
the docket several studies attesting to the harmful effects of non-
petroleum oils in the environment. One such study, conducted by the
International Maritime Organization (IMO) is titled ``Harmful Effects
on Birds of Floating Lipophilic Substances Discharged from Ships.''
This study examined the literature concerning non-petroleum oils
spilled into the environment and concluded that a number of lipophilic
substances, including vegetable oils, cause lethal harm to birds as a
specific group of marine life. The study found that lipophilic
substances adhere to the feathers of seabirds due to the lipophilic
character of the feathers' wax layer. This causes the grid structure of
the plumage to be disrupted thereby destroying its insulating
properties.
The IMO study gives numerous examples of lethal contamination of
seabirds by lipophilic substances spilled from ships. These examples
include the death of thousands of seabirds because of a discharge of
palm oil off the Netherlands coast; over 300 dead birds as a result of
a 1,000-liter spill of rapeseed oil into the harbor of Vancouver,
Canada; diseased gannets found along the Dutch coastline whose plumage
was found to be coated with paraffin and consequently was no longer
water repellent; and surveys of Dutch beaches in 1990 which found that
25 percent of the dead birds washed ashore were at least partly
contaminated with vegetable oils. The IMO study also warns that a
serious discharge of lipophilic substances in the open sea would cause
more harm to seabirds than a nearshore discharge because the birds in
the open sea would be unable to rest on shore to clean their plumage.
For these reasons, the Coast Guard has determined that a worst case
discharge of animal fats or vegetable oils or other non-petroleum oils
from an MTR facility could reasonably be expected to cause harm to the
environment. Therefore, facilities that handle, store, or transport
these oils, and meet the requirements of Sec. 154.1015(b), are required
to prepare and submit response plans. If the facility meets the
criteria in Sec. 154.1015(c) for a facility that could cause
significant and substantial harm, the response plan must be approved by
the Coast Guard.
Because there is insufficient data to support a finding that a
spill of a large quantity of animal fats or vegetable oils or other
non-petroleum oils will have less adverse impact on the environment
than a spill of other kinds of oil, the Coast Guard does not believe
that a facility that handles, stores, or transports these oils should
have reduced response requirements from those provided in the IFR.
However, the Coast Guard does acknowledge that animal fats and
vegetable oils or other non-petroleum oils may behave differently from
petroleum or petroleum-based oils and has created new subparts H and I
to address response plan requirements for these oils. For further
information see the discussions of subparts H and I in this preamble.
The Coast Guard received one comment which requested the suspension
of the IFR's implementation until hearings can be held on amending the
rule to exclude animal and vegetable fats from these regulations. The
Coast Guard disagrees. Animal fats and vegetable oils are considered to
be oils under the FWPCA. They are specifically defined as non-petroleum
oils in the final rule and may result in serious harm to the
environment in the event of a discharge to navigable waters. For
additional information on this issue, see response to similar comments
in Sec. 154.1015.
Section 154.1050 Training
The Coast Guard received 15 comments on this section. The comments
were not in agreement about whether the Coast Guard should include more
specific training requirements in the final rule. Three comments stated
they wanted more detailed standards to define the frequency of
refresher courses and the minimum level of Occupational Safety and
Health Administration (OSHA) training required. One comment suggested
making training requirements compatible with EPA standards. Five
comments were against developing any additional training requirements.
The Coast Guard has not modified the training requirement of this
section in the final rule; however, a new appendix D entitled
``Training Elements for Oil Spill Response Plans'' has been added to
subpart 154 to provide guidelines to facility owners or operators for
the development of the training portions of their response plans.
Additionally, training guidelines for facility response plans,
including refresher training, are defined in OSHA standards for
emergency response operations in 29 CFR part 1910, appendix D. As
indicated in appendix D to part 154, the specifics of the training
program should be determined by the facility owner or operator. On the
job training and experience may cover parts or all of the training
requirements, as appropriate.
Many comments remarked that the responsibility of a facility owner
or operator to ensure adequate training of all private response
personnel in Sec. 154.1050(d) is inappropriate, costly, and possibly
duplicative when an OSRO also is required to demonstrate training. One
comment argued that the Coast Guard should require OSROs rather than
the owners or operators to be
[[Page 7909]]
responsible for training employees and maintaining proper records. The
Coast Guard disagrees. While the owner or operator of the facility may
shift training requirements to an OSRO through contract or agreement,
the owner or operator of the facility remains responsible to ensure
that adequate trained response resources are available.
One comment suggested specifying that OSHA retains enforcement
authority for working conditions not addressed by Coast Guard
standards. The Coast Guard agrees, but does not find it necessary to
state that enforcement of the OSHA standards remains with that agency.
One comment mentioned that facilities handling only edible oils
should be exempt from the training requirements. The Coast Guard
believes training standards are necessary for MTR facilities regardless
of the specific type of oil handled, stored, or transported. Therefore,
the Coast Guard will not change the requirements.
One comment remarked that it was not practical to ensure that
volunteers and casual laborers have OSHA training. In Sec. 154.1050
(a), the Coast Guard requires only that a ``method of training'' be
identified to comply with the requirements of 29 CFR 1910.120.
Volunteers and casual laborers who are not trained or familiar with
hazards associated from contact with oil must be trained to meet OSHA
requirements.
Section 154.1055 Exercises
The Coast Guard has extensively revised Sec. 154.1055 which was
previously entitled ``Drills'' and is now entitled ``Exercises.'' The
changes make the terminology in the final rule consistent with the
National Preparedness for Response Exercise Program (PREP). In response
to the need to provide facility owners or operators with additional
direction on conducting exercises, the Coast Guard has revised this
section to specify that compliance with PREP fulfills all exercise
requirements. However, participation in the PREP itself remains
voluntary. If an owner or operator does not choose to participate in
the PREP, they may develop their own program for compliance with the
exercise requirements in this regulation.
The National Preparedness for Response Exercise Program (PREP) was
developed through a joint effort of the Federal agencies implementing
OPA 90 response plan regulations and other Federal representatives
(e.g., natural resource trustees), state agencies, members of the
regulated community, and OSROs. Four public workshops were announced in
the Federal Register and were conducted in Washington, DC, and Tampa,
FL. These efforts resulted in the creation of unified requirements that
reduce the possibility of owners and operators having to participate in
numerous duplicative exercises. Following the PREP guidelines has been
determined to be an acceptable means to satisfy the OPA 90
requirements.
Equipment. The Coast Guard received 16 comments on
Sec. 154.1055(a)(3), equipment deployment drills. One comment argued
that facility owners and operators should not be penalized when
response resources are not available due to a real emergency. The Coast
Guard recognizes that actual availability of response resources may be
limited by unforeseeable events such as multiple simultaneous oil
spills.
Three comments requested additional information on equipment
deployment. Another wanted specific information on equipment deployment
drills for facilities that have no equipment of their own. One comment
stated that the Coast Guard should remove mandatory equipment
deployment for the entire plan drill. Two comments remarked that it
would be better to require one major equipment deployment exercise in
each COTP zone every 3 years. Another comment suggested that full scale
drills should determine only the response time of contractors and test
only strategic personnel, and not require equipment deployment. The
Coast Guard's position is that equipment deployment exercises are vital
for maintaining readiness and for testing the effectiveness of a
facility's response plan. The revised Sec. 154.1055 continues to
require semiannual equipment deployment exercises for facility owned or
operated equipment and annual equipment deployment exercises for OSRO
equipment. These standards are in accord with the requirements of the
PREP program.
Frequency. Several comments remarked that the costs of drills were
excessive. Many suggested that the frequency of various drills should
be decreased. Two comments requested additional details on frequency of
drills and credit provisions for separate drill elements
FR Doc. 96-4274 Response Plans for Marine Transportation-Related Facilities
. Two comments
also suggested that the number of drills required should be decreased
over time because they lose effectiveness. As indicated earlier, the
Coast Guard has revised the exercises section of the final rule to be
in accordance with PREP. It has adjusted the frequency of some
exercises. Qualified individual notification exercises are required
quarterly instead of monthly and whole plan exercises may now be
carried out in parts rather than all at once. The Coast Guard believes
exercises continue to be effective over time as equipment and personnel
change.
A significant number of comments suggested that credit be given for
equipment and personnel drill requirements when other drills provide
adequate practice. The different kinds of required exercises test
different aspects of a response plan. However, if an exercise includes
components which fulfill the requirements for some other type of
required exercise (e.g., an equipment deployment exercise that includes
a qualified individual notification) then both requirements may be
fulfilled by the single exercise.
Two comments suggested that an actual response situation should
credit some drills. In this final rule, the Coast Guard has made
participation in the PREP program satisfy all exercise requirements.
Under PREP, facilities which have an actual response situation may get
exercise credit. For more detailed guidance the PREP guidelines should
be consulted.
Six comments remarked that participation in one drill by a spill
management team (SMT) should meet the requirements for all facilities
using that team. The PREP guidelines address this concern in detail;
PREP allows multiple facilities using the same SMT to receive credit
for a single exercise of that SMT as long as the specified criteria are
met.
Seven comments wanted other Federal, state, or local drills to
credit Coast Guard drills where appropriate. The Coast Guard has no
control over whether other agencies give credit for Coast Guard
exercises.
One comment suggested that the Coast Guard coordinate nationally to
determine that credit be given only for personnel and equipment which
actually participated in drills. The Coast Guard requires that the
facility maintain records of exercises; and that these records be made
available to the COTP upon request. A facility that lists an OSRO
located outside the facility's COTP zone must still satisfy the
facility's own COTP that the listed OSRO has fulfilled the applicable
exercise requirements. Any facility which does not satisfy the
applicable COTP that it has fulfilled its exercise requirements is
subject to enforcement action by the COTP under this regulation. The
Coast Guard believes that the existing requirements are sufficient to
ensure that all personnel and equipment listed in facility response
plans are exercised at the appropriate intervals.
Details of plan. The Coast Guard received 6 comments suggesting
[[Page 7910]]
wording changes. One general comment was received discussing the need
for more detailed guidance. Due to extensive revisions of this section,
these changes would not be applicable and, therefore, will not be
incorporated into the text.
Unannounced drills. Some comments requested that the Coast Guard
decrease the number of unannounced drills required by Sec. 154.1055(b)
to one drill every 1, 2, or 5 years. Many argued that unannounced
drills were too costly and should either be limited due to economic
concerns or not required at all. Some also remarked that such drills
were unnecessary due to the need for other drills. Some comments
asserted that operations should not be disrupted by unannounced drills.
Others wanted facility owners and operators to be compensated for the
cost associated with unannounced drills. Two comments suggested that
OSROs and SMTs should only be activated if experience and available
resources were believed to be inadequate, two others remarked that only
the SMT should be activated. One comment suggested focusing on the
initial callout only. A few comments asked that the unannounced drills
be limited in scope, kept short and only required after 24-hour
notification. One comment suggested requiring notification of the Coast
Guard during an unannounced drill and having the Coast Guard observe
the drill rather than requesting their own drills separately. Finally,
one comment questioned whether customers would be expected to
participate in unannounced drills and wondered who would be liable for
the costs incurred. The Coast Guard finds that unannounced exercises
serve an important purpose in maintaining response resource readiness.
The final rule states that annually one of the required exercises
(spill management team tabletop, equipment deployment, or emergency
procedures) must be conducted unannounced. Unannounced means that the
personnel participating in the exercise must not be advised in advance
of the exact date, time and scenario of the exercise. Additionally, the
facility owner or operator may be required by the COTP to conduct an
unannounced exercise at the facility. These COTP initiated exercises
will be limited to average most probable discharge exercises as
outlined in the facility's response plan. Such exercises involve
notifications and equipment deployment. Each COTP will limit the number
of COTP initiated unannounced exercises to no more than 4 per year. If
a facility owner or operator participates in an unannounced exercise
initiated by the COTP, the facility will be exempt from participating
in a COTP initiated unannounced exercise for at least 3 years.
Records. The Coast Guard received 5 comments on Sec. 154.1055(d),
stating that the facility owner or operator should bear the
responsibility for keeping and maintaining the records at the facility
along with the plan. The comments asserted that it would suffice to
have the records signed by an authorized federal representative at the
drill site, rather than having the records sent to the Coast Guard. The
Coast Guard has changed Sec. 154.1055 to reflect this comment. The
section now requires records to be maintained at the facility for 3
years and be made available to the Coast Guard upon request.
Section 154.1060 Submission and Approval Procedures
The Coast Guard received 9 comments addressing the proposed
requirement for a maximum validation period of up to 5 years. Three
comments did not support having a plan expiration date at all,
suggesting that the Coast Guard would not have sufficient time to
approve the new plans. Four comments suggested that substantive changes
as a result of major NCP or ACP revisions should not require plans to
be resubmitted until the 5-year term is complete. Several comments did
not want facility owners or operators to be required to resubmit plans
when no substantive changes were made. One comment asked for
clarification as to whether plans must be resubmitted to the Coast
Guard 5 years from the date of COTP approval or every 5 years,
regardless of whether there have been revisions.
OPA 90 requires a facility owner or operator to resubmit response
plans to the Coast Guard for information or approval, as appropriate.
In the IFR, the Coast Guard required that response plans must be
resubmitted every 5 years regardless of whether any revisions have been
made. In his memorandum of April 21, 1995, President Clinton directed
agencies to reduce by one-half the frequency of regularly scheduled
reports that the public is required to provide to the Government. An
exception to this requirement is provided when the agency head
determines that such action would not adequately protect the
environment or would impede the effective administration of the
agency's program. The Coast Guard has reviewed the need for
resubmission of response plans at 5-year intervals, and has concluded
that extending this to 10 years would not ensure that plans were still
viable and would not meet the goal of OPA 90, to improve the response
to spills of oil. Changes in technology and in available response
resources over a 5-year period may make a response plan fall below
acceptable standards. To effectively administer an oversight program
and ensure that the maximum practicable response capability is being
utilized, review of response plans at 5-year intervals is considered to
be an appropriate balance between program needs and reporting burden.
The Secretary of Transportation has approved retaining the requirement
to submit response plans at a maximum interval of 5 years.
Although the plans need not be resubmitted until the end of the 5-
year term, major revisions to a response plan as set out in
Sec. 154.1065(b) must be sent to the COTP within 30 days; and
deficiencies in an originally submitted plan or a 5-year resubmission
of a plan, must be corrected within the time specified by the COTP. NCP
or ACP changes will not require resubmission of the plan until the 5-
year term is complete. The requirements for plan resubmission after the
5-year term are set out in Sec. 154.1060 of the final rule. The COTP
will notify the facility owner or operator in writing of the status of
the plan.
Another two comments requested 60 days rather than 30 days to
forward major plan corrections to the COTP in response to COTP noted
deficiencies in the originally submitted plan, or a 5-year plan
resubmission. Several comments proposed that the COTP determine the
time period for sending such plan corrections, but that the period be
not less than 30 days. As a result of the comments on the 30-day time
limit for sending plan corrections to the COTP in response to COTP
noted deficiencies, the Coast Guard has changed this provision and now
requires that a facility owner or operator correct noted deficiencies
within the time period provided by the COTP. This adjustment allows for
greater flexibility in determining an appropriate time period based on
the corrections needed.
Two comments expressed concern over the number of copies needed to
review the facility response plan, and asserted that only one copy was
needed by the COTP. The comment also argued that the COTP need not
return the approved plan, but instead, that an approval notice would be
sufficient. The Coast Guard has changed Sec. 154.1060 of the final rule
to require only one copy of the plan to be submitted to the COTP.
Additionally, one copy of the plan must be maintained at the facility
in a
[[Page 7911]]
position where the plan is readily available to persons in charge of
conducting transfer operations.
Two comments suggested that a copy of the plan should be forwarded
to the state water pollution control agency and the emergency response
organization's and be available to the local response organizations
upon request. Any state agency which desires a copy of the response
plan should request one from the facility owner or operator directly.
The Coast Guard cannot involve itself in matters which would be largely
governed by state statute. In order to fulfill the requirements for
exercises under Sec. 154.1055, OSROs must be familiar with any response
plans in which they are listed. The Coast Guard leaves to the owners or
operators and their OSROs the specific method by which the OSROs will
gain the needed familiarity with the plan.
One comment stated that there should be an appeals process,
allowing the facility owner or operator to contest the COTP decision.
Both the IFR and the final rule already contain an appeal process
located in Sec. 154.1075 and entitled ``Appeal process.''
Section 154.1065 Plan Review and Revision Procedures
The Coast Guard received 6 comments on the revision of plans. Four
comments requested that the facility owner or operator be given at
least 6 months to incorporate major revisions into the plan. One
comment suggested that the rule needed a better definition of which
facilities are required to revise plans. Another comment requested
clarification of which revisions to facility plans require notification
of the Coast Guard.
Section 154.1065 requires all facilities to review their plans
annually and to send any revisions to the COTP for information or
approval; or if no revisions are made during the course that year, the
facility owner or operator must certify by letter to the COTP that the
plan remains valid with no revisions. Revisions which must be submitted
to the COTP for approval or inclusion in the plan are listed in
Sec. 154.1065(b). Requirements for 5-year plan resubmission have been
removed from Sec. 154.1065(b)(7) and now are specified in
Sec. 154.1060(e) of the final rule.
The Coast Guard received two comments recommending that plan
revisions be sent to the COTP before planned actions occur, to ensure
COTP approval. A 30-day period for approving a plan was also suggested.
In order to meet the statutory requirements of OPA 90, facilities must
operate in full compliance with their submitted response plan. the
Coast Guard concludes that a 30-day period is appropriate for COTP
action on submitted revisions(s); and as an effective date for
submitted revision(s). This final rule provides that when revision(s)
to a plan are necessary, the facility owner or operator must submit the
proposed revision(s) to the COTP. The COTP will review the proposed
revision(s) and will provide any necessary feedback to the facility
owner or operator within 30 days. The revisions will become effective
not later than 30 days from their submission to the COTP, unless the
COTP indicates otherwise.
Another comment argued that requiring annual certification by
facility owners and operators was too administratively burdensome to
the Coast Guard. Five comments suggested that it should only be
necessary to notify the Coast Guard of significant changes to the plan.
Two comments requested that facilities be allowed to file a letter at
the facility instead of placing it with the plan itself to avoid
unnecessary paper buildup. The Coast Guard has reviewed this
requirement in light of these comments and the President's directive to
reduce reporting requirements and has eliminated the requirement to
submit an annual certification that the owner or operator has reviewed
the facility response plan. The regulation has been modified to reflect
that the owner or operator is still required to annually review the
plan and notify the Coast Guard of changes; however, no report is
required if changes are not needed.
Section 154.1070 Deficiencies
The Coast Guard received 6 comments addressing this section. One
comment stressed that the Coast Guard should allow 30 days, rather than
7, to appeal a deficiency notice from the COTP. Another comment argued
that 60 days minimum should be allowed to correct deficiencies. Other
comments stated that the revised plan should be submitted within a time
period provided by the COTP, after a minimum of 30 days. It has been
the Coast Guard's experience that the 7 day appeal limit allows
adequate time for a facility owner or operator to make an initial
appeal of a COTP issued deficiency and it is not expected that a
shorter time frame would be imposed unless a significant hazard exists.
However, because these time requirements are relatively new, the Coast
Guard will continue to monitor this time frame as well as other time
limits contained in the FRP appeal process and may modify the time
limits in the future.
One comment urged the Coast Guard to provide more detail on
enforcement mechanisms. The Coast Guard has provided guidance directly
to the COTPs responsible for enforcing these regulations. This guidance
will be updated as the Coast Guard gains more experience in the review
and usefulness of response plans.
Section 154.1075 Appeal Process
The Coast Guard received 6 comments concerning the appeal process.
Four comments wanted the scope of appealable issues more clearly
defined. Another comment stated that the Coast Guard should allow a
time period to determine whether a facility is a substantial harm, or
significant and substantial harm facility. The comment continued by
arguing that notification to a facility owner or operator of
reclassification should occur within 60 days. If no response is
received within this time frame, then the facility owner or operator
can assume that reclassification is accepted. The comment continued by
stating that 30 days should be allowed to appeal the COTP's decision to
the District Commander. Another comment agreed and stressed that
facility owners and operators should be able to appeal the COTP's
decision that a plan is not adequate. A facility owner or operator may
appeal any initial determination made by a COTP regarding that
facility's plan. This includes but is not limited to, classification
decisions, reclassification decisions and deficiency decisions. The
Coast Guard believes the present procedures give owners or operators
sufficient time and opportunity to appeal a decision.
Subpart G--Additional Response Plan Requirements for a Trans-Alaska
Pipeline Authorization Act (TAPAA) Facility Operating in Prince William
Sound, Alaska
Section 154.1120 Operating Restrictions and Interim Operating
Authorization
The Coast Guard received one comment recommending that it establish
a 4-day time limit in which a 200,000 barrel spill must be removed. The
comment also suggested changing the wording in this section by
replacing ``provided, through an oil spill removal organization
required by Sec. 154.1125'' with ``ensured, by contract or other
approved means.'' The Coast Guard concludes that the required response
times are appropriate and will ensure that adequate response is made in
[[Page 7912]]
Prince William Sound. A set 4-day time limit would be too inflexible
and would not take into account varying conditions. Section 154.1110 of
subpart G requires a TAPAA facility owner or operator to meet all
requirements of subpart F in addition to the requirements of subpart G
itself. Because subpart F includes requirements for ensuring by
contract or other approved means any OSRO, a restatement of the
requirement in subpart G is unnecessarily repetitive.
The comment also recommended that the Coast Guard include a
statement telling facility owners or operators that plan approval for
Prince William Sound facilities is valid only as long as the Prince
William Sound Regional Citizens Advisory Council is funded in
accordance with OPA 90. The Coast Guard agrees with the comment and has
added language to Sec. 154.1120 to that effect.
Section 154.1125 Additional Response Plan Requirements
The Coast Guard received one comment on this section stating that
additional communities should be included for training. The communities
suggested are Seward, Seldovia, Homer, and Kodiak, Alaska. The comment
also argued that a minimum of 2,000 trained personnel should be
required to remove a 200,000 barrel discharge. The Coast Guard finds
that the existing list of communities is currently sufficient and is
not adding the communities suggested in the comment. However, should
circumstances change, a COTP may recommend adding ports if the spill
training requirements are deemed appropriate. This change would be
subject to a notice and comment rulemaking project. There were no
specific details included in this comment as to the basis for requiring
2,000 personnel for a spill of 200,000 barrels. The COTP has a great
deal of experience in this type of operation, and he or she is the one
who makes the determination as to the number of personnel necessary for
the cleanup of a spill.
Section 154.1130 Requirements for Prepositioned Response Equipment
The Coast Guard received one comment on this section of the IFR.
The comment agreed that an independent inspection or certification
entity was a good idea. The comment also stated that the section should
be revised to include the standard for response capabilities which is
currently 200,000 barrels per day in the Prince William Sound to
reflect the true maximum extent practicable. Maximum extent practicable
is based upon the planned capability to respond to a worst case
discharge in adverse weather. The standards set forth in the IFR, and
continued in the final rule, include a daily recovery rate of 30,000
barrels per day on scene within 2 hours, and a daily recovery rate of
40,000 barrels on scene within 18 hours. In addition, Sec. 154.1130
also requires on-water storage capability of 100,000 barrels to be on
scene within 2 hours, and on-water storage capability of 300,000
barrels to be on scene within 12 hours. The Coast Guard concludes that
the standards set forth are sufficient to protect Prince William Sound
and meet OPA 90's requirement of a response to the maximum extent
practicable.
Section 154.1140 TAPAA Facility Contracting With a Vessel
The Coast Guard received one comment that the section on TAPAA
facility contracting with a vessel was unclear because it referred to
subpart G of the VRP IFR, which does not exist. The Coast Guard has
corrected the cross reference in this section of the FRP final rule to
refer to subpart E of the VRP final rule.
Subpart H--Response Plan Requirements for Facilities That Handle,
Store, or Transport Animal Fats and Vegetable Oils
This subpart establishes oil spill response planning requirements
for an owner or operator of a facility that handles, stores, or
transports animal fats and vegetable oils. It requires such facilities
to also meet the applicable requirements set forth in subpart F of this
part. This subpart, and subpart I, were created to address concerns
that some of the criteria proposed in subpart F of this part were not
applicable to animal fats and vegetable oils, and other non-petroleum
oils. The specific comments on non-petroleum oils which the Coast Guard
received are addressed in this preamble under Sec. 154.1049 which was
the non-petroleum oils section of the IFR.
In the preamble to the VRP IFR, the Coast Guard stated that it had
been unable to verify that the evaporation and emulsification factors
in appendix B of the VRP IFR were applicable to both petroleum oils and
non-petroleum oils. As a result of that determination, non-petroleum
oils were divided from petroleum oils in both the Vessel and MTR
Facility Response Plan regulations.
In response to the comments to the IFR on this issue, the Coast
Guard is creating two new subparts and further subdividing non-
petroleum oils into three categories. Subpart H covers animal fats and
vegetable oils, and subpart I covers other non-petroleum oils.
These new subparts and categories are intended to form the
foundation of possible future rulemaking efforts in this area. The
Coast Guard welcomes information that may be useful in determining the
types and quantities of response equipment necessary to respond to a
discharge of these oils, and information on new or innovative response
techniques that will be appropriate for these oils. This information
would be helpful in deciding whether additional rulemaking is
appropriate.
Section 154.1225 requires owners or operators of MTR facilities
that handle, store, or transport animal fats and vegetable oils to
identify the procedures and equipment necessary to respond to a worst
case discharge of these oils to the maximum extent practicable. Animal
fats include lard, tallow and other oils of animal origin. Vegetable
oils include oils from seeds, nuts, kernels or fruits of plants such as
corn oil, safflower oil, jojoba oil, coconut oil or palm oil. Subpart H
allows the owner or operator of the facility to propose the amount of
equipment needed to respond to a worst case discharge of animal fats or
vegetable oils to the maximum extent practicable. It does not include
specific requirements for identifying the amount of response resources.
The Coast Guard will evaluate the information submitted by the owner or
operator of the facility to determine if the resources identified are
consistent with the volume of animal fats or vegetable oils that may be
spilled as a result of the worst case discharge. This procedure was the
same in the IFR.
As with petroleum oils, the owner or operator must ensure the
availability of removal equipment through contract or other approved
means. At a minimum, the owner or operator of the facility must obtain
a letter from an oil spill removal organization stating that it will
respond to a worst case discharge from the facility. It is not intended
that this letter imply a formal contractual agreement between the
parties but that the owner or operator has identified specific response
resources and that those resources will respond to a worst case
discharge from the facility.
Section 154.1225 also requires the owner or operator of an MTR
facility that handles, stores, or transports animal fats and vegetable
oils to contract for firefighting resources should the facility not
have access to sufficient local firefighting resources. For further
discussion of firefighting
[[Page 7913]]
resources see the preamble discussion of Sec. 154.1045(j).
The Coast Guard has included in subpart H, for animal fats and
vegetable oils, Sec. 154.1225(f) on the use of dispersants, and other
similar, new, or unconventional spill mitigation techniques including
mechanical dispersal. Response plans for facilities located in
environments with year-round preapproval for use of chemical
dispersants will be allowed to receive credit up to 25 percent of the
plan's required worst case planning volume. In all cases, the
identified response measures must comply with the NCP and the
applicable ACP.
The Coast Guard has included in appendix C a new paragraph 2.8
covering non-petroleum oils including animal fats and vegetable oils.
Subpart I--Response Plan Requirements for Facilities That Handle,
Store, or Transport Other Non-petroleum Oils
This subpart establishes oil spill response planning requirements
for an owner or operator of a facility that handles, stores, or
transports non-petroleum oils other than animal fats and vegetable
oils. It requires such facilities to also meet the applicable
requirements set forth in subpart F of this part. This subpart was
created to address industry concerns with grouping animal fats and
vegetable oils together with other non-petroleum oils. This separation
of animal fats and vegetable oils from other non-petroleum oils
recognizes that while animal fats and vegetable oils have harmful
effects, they are not toxic to the marine environment as maybe other
non-petroleum oils. The specific comments on non-petroleum oils which
the Coast Guard received are addressed in this preamble under
Sec. 154.1049 which was the non-petroleum oils section of the IFR.
Section 154.1325 requires owners or operators of MTR facilities
that handle, store, or transport other non-petroleum oils to identify
the procedures and equipment necessary to respond to a worst case
discharge of these oils to the maximum extent practicable. Other non-
petroleum oils include those that are not animal fats or vegetable oils
such as essential oils, turpentine and tung oil.
Section 154.1325 allows the owner or operator of the facility to
propose the amount of equipment needed to respond to a worst case
discharge of other non-petroleum oils to the maximum extent
practicable. It does not include specific requirements for identifying
the amount of response resources. The Coast Guard will evaluate the
information submitted by the owner or operator of the facility to
determine if the resources identified are consistent with the volume of
other non-petroleum oils that may be spilled as a result of the worst
case discharge. This procedure was the same in the IFR.
As with petroleum oils, Sec. 154.1325 requires that the owner or
operator must ensure the availability of removal equipment through
contract or other approved means. At a minimum, the owner or operator
of the facility must obtain a letter from an oil spill removal
organization stating that it will respond to a worst case discharge
from the facility. It is not intended that this letter imply a formal
contractual agreement between the parties but that the owner or
operator has identified specific response resources and that those
resources will respond to a worst case discharge from the facility.
Subpart I also requires the owner or operator of an MTR facility
that handles, stores, or transports other non-petroleum oils to
contract for firefighting resources should the facility not have access
to sufficient local firefighting resources. For further discussion of
firefighting resources see the preamble discussion of Sec. 154.1045(j).
Under subpart I, a response plan may propose, for other non-
petroleum oils, the use of other spill mitigation techniques provided
that the identified response measures comply with the NCP and the
applicable ACP.
The Coast Guard has included in appendix C a new paragraph 2.8
covering the evaluation of response plans for non-petroleum oils
including other non-petroleum oils.
Appendix C of Part 154. Guidelines for Determining and Evaluating
Required Response Resources for Facility Response Plans
The Coast Guard received one comment recommending that special
allowance be made for harbors since they often have conditions similar
to rivers and canals. The comment also recommended that such special
allowance not be limited only to waterways having depths of 12 feet or
less. The Coast Guard disagrees. The term harbor is a broad term and
can be applied to a sheltered part of a body of water deep enough to
provide anchorage for ships. In reality, a harbor may range from small
embayments to large bodies of water. Under the final rule, a harbor
could be considered as either being in a rivers and canals operating
environment or an inland operating environment. The 12 feet project
depth was selected as part of the rivers and canals operating
environment to assist in establishing the ability of response resources
to operate in specific water depths. The Coast Guard finds that the
depth of 12 feet remains relevant in establishing the rivers and canals
environment or the inland operating environment.
1. Purpose
The Coast Guard did not receive comments to this section but has
revised appendix C to reference the newly created subparts H and I and
indicate the portions of appendix C which are applicable.
2. Equipment Operability and Readiness
2.5 The Coast Guard received 2 comments on this paragraph. Both
comments asked whether Table 1 adverse weather conditions can be
reduced or increased if the Area Committee determines that the
conditions listed in the table are not appropriate. Both comments also
recommended that the local COTP be allowed to determine the applicable
weather conditions until the ACP is finalized. The comments also
requested a mechanism for input by the regulated community to the Area
Committee before that committee's determinations are completed.
The COTP may reclassify a specific body of water or location within
the COTP zone. Section 154.1045 provides details on COTP
reclassification to more or less stringent operating environments. The
Coast Guard has issued guidance that strongly encourages Area
Committees to solicit advice, guidance, and expertise from all
appropriate sources including facility owners or operators, OSROs,
environmental groups, members of academia, and concerned citizens.
2.6 The Coast Guard received one comment on this paragraph. The
comment noted that currently the Coast Guard, EPA and RSPA each have a
different planning speed and recommended that a single standardized
speed be adopted. The Coast Guard agrees and the Coast Guard, EPA, and
RSPA will use the same planning speeds.
2.7 The Coast Guard received one comment on this paragraph. The
comment recommended that each type of boom only be required to have
compatible connectors with the same type of boom because, for example,
there would be no reason to connect high seas boom to harbor or river
boom. This statement in the appendix is there only to remind facility
owners or operators to ensure that the equipment on which they are
going to rely in the event of an oil spill will be capable of
[[Page 7914]]
carrying out the function for which it is intended. If boom of varying
types will never be used together, the need for compatible connectors
is moot.
2.8 The Coast Guard has added paragraph 2.8 covering the newly
created subparts H and I.
3. Determining Response Resources Required for the Average Most
Probable Discharge
3.1 The Coast Guard received one comment on this paragraph. The
comment expressed concern that under the IFR's current language small
facilities would be required to purchase booms and boats rather than
contracting for them. It recommended that the language be amended to
require only a ``means of initiating deployment.'' The Coast Guard
disagrees. Section 154.1045(c) provides for the use of contracted
response resources for an average most probable discharge provided that
the responders can meet the stated response times.
3.2.1 The Coast Guard received one comment on this paragraph. The
comment proposed that the Coast Guard amend the language on required
boom length to read: ``two times the length of the largest vessel * * *
or the amount needed to contain a 50 barrel discharge during a transfer
operation.'' The Coast Guard disagrees. Requiring an amount of boom to
contain only a ``50 barrel discharge'' could result in many variations
between facilities. Requiring a minimum of 1,000 feet creates a more
uniform standard.
3.2.2 The Coast Guard received one comment on this paragraph. The
comment said that the Coast Guard should require a minimum level of
sorbent material to support other recovery equipment. The Coast Guard
disagrees. While sorbents are effective in certain circumstances, they
are not considered major spill response equipment. They are expendable
resources and may be used during routine facility operations. It is the
responsibility of the owner or operator of the facility to make sure
that adequate amounts of sorbent materials are available.
5. Determining Response Resources Required for the Worst Case Discharge
to the Maximum Extent Practicable
5.5 The Coast Guard received one comment on this paragraph. This
comment recommended that the paragraph be amended by adding language
which restricts the definition of shallow water resources to vessels
with a fully loaded draft of not more than six feet. The Coast Guard
concludes that the response plan must demonstrate that sufficient
resourses are available to operate in shallow water. It may be
necessary to operate vessels at less than their fully loaded draft. In
that event, it may be necessary for the response plan to identify
additional resources due to vessels not being able to operate at their
fully loaded draft. However, ideally only those vessels which can be
utilized in a full range of loading conditions in waters of 6 feet or
less depth should be listed for use in close-to-shore response
activities (10% of those to be used in the offshore areas and 20% of
those to be used in the nearshore inland, Great Lakes, and rivers and
canals).
5.6 The Coast Guard received one comment on this paragraph. The
comment suggested that a more specific planning standard be adopted for
determining the required length of boom in order to avoid wide
variations in interpretation. The Coast Guard disagrees. Environmental
conditions vary at each recovery site and each fish and wildlife and
sensitive environment that must be protected. The Coast Guard contends
that there is sufficient guidance, ``rules of thumb'', and practical
experience to be used in determining the quantities of boom necessary
to contain oil or provide protective booming for fish and wildlife and
sensitive environments. In addition, ACPs address the strategies to
protect these areas.
7. Calculating Worst Case Discharge Planning Volumes
7.2.2 The Coast Guard received one comment on this paragraph. The
comment addressed the requirement that facilities which handle, store,
or transport oils from different petroleum groups assume, for planning
purposes, that the oil groups resulting in the largest on-water
recovery volume will be stored in the tank or tanks identified as
constituting the worst case discharge. The comment recommended that the
oil groups resulting in the largest on-water recovery volume should
apply only if the largest tank does, in fact, store the largest oil
volume. The comment stated that if the product changed in a way that
required more planning then the plan could be amended accordingly at
that time. The marine transportation-related (MTR) facility pertains to
the piping that conveys the oils between the vessel and the non-
transportation-related storage tanks. The MTR facility does not
generally include the storage tanks and therefore the comment applies
to the non-transportation related portion which is regulated by the
EPA, not the Coast Guard. The EPA has addressed this comment in their
final rule issued on July 1, 1994 (59 FR 34071).
8. Determining the Availability of Alternative Response Methods
8.6 The Coast Guard received one comment on this paragraph. The
comment encouraged the Coast Guard to credit a portion of the required
on-water recovery capacity for in-situ burning similar to the credit
allowed for dispersants. The comment asserted that in-situ burning is
most effective early in a spill response and in order to use it as
early as possible authority to use in-situ burning must be authorized
ahead of time. The Coast Guard will not permit an owner or operator of
a facility to use in-situ burning as a planning response strategy in
the final rule. The use of in-situ burning is still being studied. As
the effectiveness and environmental effects of non-mechanical methods
of pollution recovery are studied, they may be included as alternate
response strategies. The Coast Guard will evaluate in-situ burning as a
permissible response strategy for capability increases in 1998.
9. Additional Equipment Necessary to Sustain Response Operations
9.1 The Coast Guard received 1 comment on this paragraph. The
comment expressed concern that the language of the IFR regarding
additional equipment and personnel allows for varying interpretations.
It recommended adoption of a planning standard using a ``systems''
approach to clarify the final rule. The Coast Guard agrees and
concludes that the section reflects a ``systems'' approach to spill
response. The equipment must be suitable for use with the primary
equipment identified in the response plan. Section 2.4 of appendix C
and Sec. 154.1045 require that equipment must be capable of operating
in the applicable operating environment.
9.2 The Coast Guard received 1 comment on this paragraph. The
comment recommended using a 10-hour operating day in determining the
level of adequate temporary storage capacity. The comment also asked
for guidance from the Coast Guard in determining the time needed for
transferring recovered oil to a temporary storage facility. The
suggested guidance included pumping capacity, number of oil discharge
stations, and any other pertinent factors. The Coast Guard disagrees
and determines that the storage capacity should be based on the types
and quantities of oil recovery identified in the plan. Pump capacities
are variable and discharge stations are dependent on local factors. The
owner or operator is
[[Page 7915]]
best equipped to estimate and certify the availability of these
resources.
Appendix C of Part 154. Tables 1-5
Table 1 Response Resource Operating Criteria
The Coast Guard received two comments stating that Tables 1, 2 and
3 are oversimplified because they do not take into account variables
such as temperature and flow rate, which the comments claim affect
dissipation and emulsification rates. Another comment recommended
referencing the factors used to calculate the figures in the tables.
That comment asked for clarification because it stated that the 3-day
quick mobilization mentioned in the explanatory note is incompatible
with the 3, 4, or 6-day sustainability requirements in Table 2. The
comment also claimed that the 3-day quick mobilization is inconsistent
with the tiering of response equipment which is required to be on-scene
within 60 hours.
The Coast Guard disagrees with these comments. Table 1 is based on
information for equipment selection in the 1991 World Catalog of Oil
Spill Response Products [Schulze, Robert, ed., 1991]. The American
Society of Testing and Material (ASTM) used this resource as the
starting point for its oil recovery equipment standard. The values in
Table 2 were drawn from the deliberations among the Negotiated
Rulemaking Committee. They are based on the general behavior of oil
that has been observed during actual discharges. The variances in
values reflect the amount of oil most likely to be available for
recovery.
The three days referred to by the comment appears in the preamble
to the IFR. This reflects a desire for the planned mobilization of
response resources within the first 3 days of the response. It should
not be confused with the equipment sustainability listed in Table 2.
Table 2 Removal Capacity Planning Table
The Coast Guard received one comment remarking that the values in
Table 2 should not total over 100 percent. As was explained in the IFR,
the Coast Guard recognizes that the percentages exceed 100 percent in
the inland, nearshore, Great Lakes, and offshore areas. This reflects a
desire to increase the quantity of response that are planned for
mobilization within the first 3 days of a response.
Table 3 Emulsification Factors for Petroleum Oil Groups
The Coast Guard received four comments on Table 3. One comment
asserted that the entire amount of oil spilled will not emulsify
because emulsification occurs over time, and therefore, the IFR's rapid
spill response requirements will not allow the impact to be as
extensive as suggested. The comment stated that emulsification factors
are only appropriate for open ocean spills from vessels; and that the
factors should not apply to the total worst case discharge in river/
nearshore areas. The comment also recommended that the regulations not
use emulsification factors at all. Another comment pointed out that
emulsification is already accounted for in the derating of recovery
devices in paragraph 6.2 of appendix C. Two comments stated that Table
3 is overly simple because it does not take into account other
variables which affect emulsification such as flow rate and
temperature. One comment recommended that the emulsification factor for
Group III oil should be changed to 3.0 to better reflect the level of
Alaskan crude oil.
Emulsification factors vary considerably within an oil group and
are dependent on many factors, such as temperature and weather
conditions. The proposed Table 3 values were derived from ITOPF data
and reflected the maximum amount of emulsification that could occur
over a prolonged period of time in environmental conditions that favor
the emulsification process. No other factors were proposed. The Coast
Guard does not require that the entire amount of oil be emulsified.
Rather the oil to be emulsified depends on the percentage of recovered
floating oil taken from Table 2.
The Coast Guard disagrees with the comment that the emulsification
is accounted for in the derating of recovery devices. The
emulsification factors listed in Table 3 are to account for actual
emulsification that occurs to the oils prior to being encountered by
the skimming equipment. The derating factor included, among other
things, consideration of the actual skimming device to remove oily
material from water, the two issues are unrelated.
The emulsification factors in this final rule are the same as those
in the VRP IFR. The factors in the VRP IFR were revised from the
factors in the VRP NPRM. The factors were revised down because the
Coast Guard was convinced that the original factors were too high.
Table 5 Response Capability Caps by Operating Area
The Coast Guard received one comment on Table 5. The comment
suggested that the 1998 caps be changed to ``To Be Determined'' because
practical experience may demonstrate that the 1993 values may not need
to be increased. The Coast Guard disagrees. The caps provided in Table
5 reflect a 25 percent increase in response resources from 1993 to
1998. Prior to these caps becoming effective, the Coast Guard will
initiate a review of the cap increases. This review will determine if
the scheduled increases for 1998 remain practicable and will also
establish a specific cap for 2003.
Appendix D of Part 154. Interim Guidelines for Determining Economically
Important and Environmentally Sensitive Areas for Facility Response
Plans
The Coast Guard received 12 comments to Appendix D--Guidelines for
Determining Economically Important and Environmentally Sensitive Areas
for Facility Response Plans. The Coast Guard reviewed the comments and
provided them to the National Oceanic and Atmospheric Administration
(NOAA). NOAA used the comments in drafting its Federal Register notice
entitled ``Guidance for Facility and Vessel Response Plans Fish and
Wildlife and Sensitive Environments.''
The Coast Guard has adopted EPA's terminology in this final rule
and therefore the term ``Environmentally Sensitive Areas'' has been
changed to ``Fish and Wildlife and Sensitive Environments.'' The Coast
Guard determined that Appendix D on sensitive areas is unnecessary
because fish and wildlife and sensitive environments are identified in
the Area Contingency Plans (ACPs) and all coastal ACPs are now
complete. Since the ACPs identify fish and wildlife and sensitive
environments for each area, there is no longer a need for the Coast
Guard to provide the guidance that was contained in appendix D to the
IFR. Therefore, the Coast Guard has removed appendix D on sensitive
areas from the final rule and has replaced it with a new Appendix D
entitled ``Training Elements for Oil Spill Response Plans.''
Appendix D to Part 154--Training Elements for Oil Spill Response Plans
This appendix was added to the final rule to provide guidelines to
facility owners and operators for the development of the training
portions of their response plans. These guidelines were developed in
the same manner as PREP, which is addressed in the preamble discussion
on the revisions to Sec. 154.1055.
Assessment
This final rule is a significant regulatory action under section
3(f) of
[[Page 7916]]
Executive Order 12866 and has been reviewed by the Office of Management
and Budget (OMB) under that order. It requires an assessment of
potential costs and benefits under section 6(a)(3) of that order. It is
significant under the regulatory policies and procedures of the
Department of Transportation (44 FR 11040, February 26, 1979). An
Assessment has been prepared and is available in the docket for
inspection or copying where indicated under ADDRESSES. Seven public
comments addressed the Regulatory Evaluation section of the IFR. The
comments are discussed in the appropriate section of this discussion.
1. Facility Response Plan Costs and Benefits
In the aggregate, the requirement for facility response plans will
result in substantial costs to the facilities affected. If all the
costs for MTR facilities affected by this rule are attributed to the
Coast Guard's regulations, the present value cost of this regulation
for the first 10 years is estimated at $305.9 million. In the first
year, most of this cost is attributable to conducting training and
exercise evaluations and arranging for or providing adequate response
capability. In subsequent years, the majority of the cost is
attributable to conducting exercising and retaining the response
capability. The incremental cost of the entire regulation was $63
million for 1992, but declined to $40 million annually in subsequent
years. However, since many of these facilities are complexes which are
being jointly regulated by the Coast Guard and the EPA and the total
costs are already accounted for under EPA's facility response plan
regulation (59 FR 34097, July 1, 1994), these costs could be reduced to
reflect this fact. Thus, total present value costs for Coast Guard
facility response plans will be $90 million and incremental costs will
be $18.7 million for the first full year and $11.9 million for
subsequent years.
Four comments argued that the costs of this regulation are
excessive and have not been thoroughly examined in the IFR. The Coast
Guard disagrees with these comments. The Coast Guard has reexamined its
cost data and concludes that costs are not excessive. Two comments
argued that the $25,000 cost estimate for large facilities is much too
low and does not take into consideration expenditures such as equipment
purchases, costs of training, costs of exercises, and retainer fees.
With regard to exercises, two comments argued that the costs would be
prohibitive. The Coast Guard disagrees with these comments. The
Regulatory Impact Analysis did take into consideration equipment
purchases, costs of training, costs of exercises, and retainer fees.
Facility owners or operators are already required to comply with
existing pollution regulations which require them to prepare operations
manuals and Spill Prevention Control and Countermeasures (SPCC) plans
that address some elements of the facility response plan regulations.
The Coast Guard assumed in its analysis that facility owners or
operators would not be redundant when complying with requirements. The
Coast Guard's analysis indicated that the requirements set forth are
the most practical and least burdensome which give acceptable levels of
planning for spill response.
The benefit analysis indicates an incremental volume of 230,848
discounted barrels of spilled oil (using a 7 percent discount rate)
that will be recovered due to compliance with this regulation. The cost
effectiveness ratio (costs divided by benefits) is $1,325 per barrel of
oil recovered.
A Regulatory Impact Analysis (RIA) is available in the docket for
inspection or copying, as indicated under ADDRESSES. The RIA prepared
for the IFR was reviewed based upon comments received and no changes
made in the final rule caused a great enough impact on costs to require
redrafting the RIA. It has also been placed in a separate docket (CGD
91-047) established to facilitate review of the programmatic RIA for
titles IV and V of OPA 90.
One comment expressed concern that the RIA for the final rule would
be different from the RIA on which the IFR was based and that an
opportunity for comment would not be permitted before the rule would be
finalized. While the costs and benefits in the RIA have changed from
the IFR to the final rule, the change is the result of lowering the
discount rate from 10 to 7 percent, reflecting a change in OMB guidance
between publication of the IFR and publication of the final rule.
2. Additional Response Plans Requirements for Trans-Alaska Pipeline
Authorization Act (TAPAA) Facilities Operating in Prince William Sound,
Alaska
At present, there is only one Trans-Alaska Pipeline (TAPAA)
facility operating in Prince William Sound. This facility is the Valdez
Marine Terminal which is operated by Alyeska Pipeline Service Company.
This facility transfers approximately 700 million barrels annually to
approximately 900 tank vessels.
The increase in unit cost of handling, storing, and transporting
crude oil to comply with section 5005 of OPA 90 is relatively small.
This can easily be absorbed by the Alyeska Pipeline Service Company.
Overall industry costs for complying with additional response
planning requirements were previously discussed in the Draft Regulatory
Evaluation for Prince William sound, Alaska referenced in the VRP NPRM
published in the Federal Register on June 19, 1992 (57 FR 27514). While
this specifically addressed requirements for certain vessels in Prince
William Sound, Alaska, it also included the costs and benefits incurred
by the sole TAPAA facility located in Prince William Sound. The costs
of complying with section 5005 of OPA 90 are estimated to be $232
million for the 10-year period, 1993 through 2002. The benefits include
the quick recovery of spilled oil from the environment and subsequent
reduction in net impact of the spill. The regulations for Prince
William Sound are estimated to increase the volume of recovered oil by
25 percent for crude oil.
A copy of the Assessment for Prince William Sound is available in
the docket for inspection or copying, as indicated under ``ADDRESSES.''
Small Entities
The Coast Guard has examined the impact of this rule on small
entities. Its analysis indicates that the majority of small businesses
subject to this regulation should be able to absorb the estimated
compliance costs without experiencing significant adverse economic
effects. Therefore, the Coast Guard certifies under section 605(b) of
the Regulatory Flexibility Act (5 U.S.C. 601 et seq.) that this rule
will not have a significant economic impact on a substantial number of
small entities.
The Coast Guard received one comment to the IFR concerning the
impact of the Facility Response Plan regulation on small businesses.
The comment argued that smaller operators may not have the resources to
comply with regulations as the Coast Guard has envisioned. The Coast
Guard disagrees. The regulation may have a significant impact on a very
few small facility operators. The impact on small entities of the
changes in this final rule are not substantial.
Collection of Information
This rule contains collection-of-information requirements. The
Coast Guard previously submitted the requirements to the Office of
Management and Budget (OMB) for
[[Page 7917]]
review under section 3504(h) of the Paperwork Reduction Act (44 U.S.C.
3501 et seq.) and OMB approved them. The Coast Guard has submitted
revised requirements to OMB for renewed approval under the current OMB
Control Number 2115-0595. For subpart F, the section numbers are
Secs. 154.1025, 154.1030, 154.1050, 154.1055, 154.1060, and 154.1065,
and the corresponding OMB approval number is OMB Control Number 2115-
0595. For subpart G, the section numbers are Secs. 154.1120 and
154.1125, and the corresponding OMB approval number is OMB Control
Number 2115-0595. Subparts H and I refer to subpart F for all
collection-of-information requirements. Accordingly, additional OMB
approval is not needed.
The Coast Guard received one comment responding to this portion of
the IFR, which contended that the estimated recordkeeping burden of 4.5
hours annually is much too low. The Coast Guard disagrees. The Coast
Guard has reexamined its recordkeeping analysis and has concluded that
its estimate is accurate.
Federalism
The Coast Guard has analyzed this rule under the principles and
criteria contained in Executive Order 12612 (October 26, 1987) and has
determined that this rule does not have sufficient federalism
implications to warrant the preparation of a Federalism Assessment.
Executive Order 12612 and the FWPCA emphasize the President's and
Congress' intent to preserve state authority to address matters of
pollution prevention and response. Executive Order 12612 directs a
Federal executive branch agency (which includes the Coast Guard) to
encourage states to develop their own policies to achieve program
objectives. Consequently, a Federalism Assessment would be necessary
only if the facility response plan rule unduly impinged on a state's
authority to establish its own regulatory structure, or imposed undue
costs on a state.
The FWPCA provides convincing evidence of Congress' intent that,
within 3 miles of shore, the protection of the marine environment
should be a collaborative Federal and state effort. Chevron v.
Governor, State of Alaska, 726 F.2d 483 (9th Cir. 1984), cert. denied,
471 U.S. 1140 (1985). For example, section 402 of the FWPCA (33 U.S.C.
1342) establishes the National Pollutant Discharge Elimination System,
a regulatory program for regulating the discharge of pollutants into
U.S. navigable waters. Minimum Federal standards apply to the discharge
of certain pollutants, but the States have authority to establish and
administer their own permit systems and to set standards stricter than
the Federal ones (33 U.S.C. 1342(b) and 1370). Further, in the
Declaration of Goals and Policy contained in section 101 of the FWPCA
(33 U.S.C. 1251), Congress states that it is the policy of the Congress
to recognize, preserve, and protect the primary responsibilities and
rights of States to prevent, reduce, and eliminate pollution of land
and water resources.
United States courts have long recognized the rights of States to
make both U.S.-flag and foreign-flag vessels conform to ``reasonable,
nondiscriminatory conservation and environmental protection measures *
* * imposed by a State.'' Ray v. Atlantic Richfield, 435 U.S. 151, 164
(1973). Also section 311(o)(3) of the FWPCA (33 U.S.C. 1321(o)(3))
contains express nonpreemption language. Therefore, a State standard
setting more stringent planning requirements for facilities owners and
operators in the regulating State's water is encouraged under the FWPCA
and in valid as long as the State requirement does not preclude
compliance with the Federal requirements. Similarly, if a State chose
to establish performance requirements for response to an oil spill, the
Federal facility response plan rules would not preclude that option.
The Federal facility response plan rules preempt State rules only to
the extent that State rules may make it impossible to comply with
Federal requirements. Florida Lime and Avocado Growers v. Paul, 373
U.S. 132 (1963).
Environment
The Coast Guard considered the environmental impact of this final
rule and prepared an Environmental Assessment (EA) under section 311(j)
of the FWPCA (33 U.S.C. 1321(j)), and a separate EA for Prince William
Sound under section 5005 of OPA 90. These documents were prepared in
accordance with the Council on Environmental Quality regulations (40
CFR parts 1500-1508) and Commandant Instruction M16475.1B implementing
the provisions of the National Environmental Policy Act (NEPA).
The EA prepared for section 311(j) requirements was amended when
section 5209(b) of the Coast Guard Authorization Act of 1992 (Pub. L.
102-587) declared offshore supply vessels and certain fishing vessels
not to be ``tank vessels'' for purposes of implementing the VRP rule.
The Prince William Sound EA was entirely revised when section 352 of
the Department of Transportation Appropriations Act effectively made
section 5005 of OPA 90 inapplicable to non-TAPS-trade vessels. The
original language of section 5005 created special response plan
provisions applicable to all tank vessels operating in Prince Williams
Sound, including non-TAPS vessels. The Coast Guard received no comments
on the EAs.
The Coast Guard has identified and studies the relevant
environmental issues and alternatives, and based on its assessment,
does not expect this final rule to result in a significant impact on
the quality of the human environment. Therefore, Findings of No
Significant Impact (FONSIs) have been prepared. The revised and amended
EAs and the FONSIs are available in the public docket where indicated
under ADDRESSES.
List of Subjects
33 CFR Part 150
Harbors, Marine safety, Navigation (water), Occupational safety and
health, Oil pollution, Reporting and recordkeeping requirements.
33 CFR 154
Fire prevention, Oil pollution, Hazardous substances, Incorporation
by reference, Reporting and recordkeeping requirements.
For the reasons set out in the preamble, the interim rule amending
33 CFR parts 150 and 154 which was published at 58 FR 7330 on February
5, 1993, is adopted as final except for changes to part 154 which are
set forth below:
PART 154--FACILITIES TRANSFERRING OIL OR HAZARDOUS MATERIAL IN BULK
1. The authority citation for part 154 continues to read as
follows:
Authority: 33 U.S.C. 1231, 1321 (j)(1)(C), (j)(5), (j)(6) and
(m)(2); sec. 2, E.O. 12777, 56 FR 54757; 49 CFR 1.46. Subpart F is
also issued under 33 U.S.C. 2735.
2. Subpart F of part 154 is revised to read as follows:
Subpart F--Response Plans for Oil Facilities
Sec.
154.1010 Purpose.
154.1015 Applicability.
154.1016 Facility Classification by COTP.
154.1017 Response plan submission requirements.
154.1020 Definitions.
154.1025 Operating restrictions and interim operating
authorization.
154.1026 Qualified individual and alternate qualified individual.
154.1028 Methods of ensuring the availability of response resources
by contract or other approved means.
154.1029 Worst case discharge.
[[Page 7918]]
154.1030 General response plan contents.
154.1035 Specific requirements for facilities that could reasonably
be expected to cause significant and substantial harm to the
environment.
154.1040 Specific requirements for facilities that could reasonably
be expected to cause substantial harm to the environment.
154.1041 Specific response information to be maintained on mobile
MTR facilities.
154.1045 Response plan development and evaluation criteria for
facilities that handle, store, or transport Group I through Group IV
petroleum oils.
154.1047 Response plan development and evaluation criteria for
facilities that handle, store, or transport Group V petroleum oils.
154.1050 Training.
154.1055 Exercises.
154.1057 Inspection and maintenance of response resources.
154.1060 Submission and approval procedures.
154.1065 Plan review and revision procedures.
154.1070 Deficiencies.
154.1075 Appeal process.
Subpart F--Response Plans for Oil Facilities
Sec. 154.1010 Purpose.
This subpart establishes oil spill response plan requirements for
all marine transportation-related (MTR) facilities (hereafter also
referred to as facilities) that could reasonably be expected to cause
substantial harm or significant and substantial harm to the environment
by discharing oil into or on the navigable waters, adjoining
shorelines, or exclusive economic zone. The development of a response
plan prepares the facility owner or operator to respond to an oil
spill. These requirements specify criteria to be used during the
planning process to determine the appropriate response resources. The
specific criteria for response resources and their arrival times are
not performance standards. The criteria are based on a set of
assumptions that may not exist during an actual oil spill incident.
Sec. 154.1015 Applicability.
(a) This subpart applies to all MTR facilities that because of
their location could reasonably be expected to cause at least
substantial harm to the environment by discharging oil into or on the
navigable waters, adjoining shorelines, or exclusive economic zone.
(b) The following MTR facilities that handle, store, or transport
oil, in bulk, could reasonably be expected to cause substantial harm to
the environment by discharging oil into or on the navigable waters or
adjoining shorelines and are classified as substantial harm MTR
facilities:
(1) Fixed MTR onshore facilities capable of transferring oil to or
from a vessel with a capacity of 250 barrels or more and deepwater
ports;
(2) Mobile MTR facilities used or intended to be used to transfer
oil to or from a vessel with a capacity of 250 barrels or more; and
(3) Those MTR facilities specifically designated as substantial
harm facilities by the COTP under Sec. 154.1016.
(c) The following MTR facilities that handle, store, or transport
oil in bulk could not only reasonably be expected to cause substantial
harm, but also significant and substantial harm, to the environment by
discharging oil into or on the navigable waters, adjoining shorelines,
or exclusive economic zone and are classified as significant and
substantial harm MTR facilities:
(1) Deepwater ports, and fixed MTR onshore facilities capable of
transferring oil to or from a vessel with a capacity of 250 barrels or
more except for facilities that are part of a non-transportation-
related fixed onshore facility with a storage capacity of less than
42,000 gallons; and
(2) Those MTR facilities specifically designated as significant and
substantial harm facilities by the COTP under Sec. 154.1016.
(d) An MTR facility owner or operator who believes the facility is
improperly classified may request review and reclassification in
accordance with Sec. 154.1075.
Sec. 154.1016 Facility classification by COTP.
(a) The COTP may upgrade the classification of:
(1) An MTR facility not specified in Sec. 154.1015 (b) or (c) to a
facility that could reasonably be expected to cause substantial harm to
the environment; or
(2) An MTR facility specified in Sec. 154.1015(b) to a facility
that could reasonably be expected to cause significant and substantial
harm to the environment.
(b) The COTP may downgrade, the classification of:
(1) An MTR facility specified in Sec. 154.1015(c) to a facility
that could reasonably be expected to cause substantial harm to the
environment; or
(2) An MTR facility specified in Sec. 154.1015(b) to a facility
that could not reasonably be expected to cause substantial, or
significant and substantial harm to the environment.
(3) The COTP will consider downgrading an MTR facility's
classification only upon receiving a written request for a downgrade of
classification from the facility's owner or operator.
(c) When changing a facility classification the COTP may, as
appropriate, consider all relevant factors including, but not limited
to: Type and quantity of oils handled in bulk; facility spill history;
age of facility; proximity to public and commercial water supply
intakes; proximity to navigable waters based on the definition of
navigable waters in 33 CFR 2.05-25; and proximity to fish and wildlife
and sensitive environments.
154.1017 Response plan submission requirements.
(a) The owner or operator of an MTR facility identified only in
Sec. 154.1015(b), or designated by the COTP as a substantial harm
facility, shall prepare and submit to the cognizant COTP a response
plan that meets the requirements of Secs. 154.1030, 154.1040, 154.1045,
or Sec. 154.1047, as appropriate. This applies to:
(1) A mobile MTR facility used or intended to be used to transfer
oil to or from a vessel with a capacity of 250 barrels or more; and
(2) A fixed MTR facility specifically designated as a substantial
harm facility by the COTP under Sec. 154.1016.
(b) The owner or operator of an MTR facility identified in
Sec. 154.1015(c) or designated by the COTP as a significant and
substantial harm facility shall prepare and submit for review and
approval of the cognizant COTP a response plan that meets the
requirements of Secs. 154.1030, 154.1035, 154.1045, or 154.1047, as
appropriate. This applies to:
(1) A fixed MTR facility capable of transferring oil, in bulk, to
or from a vessel with a capacity of 250 barrels or more; and
(2) An MTR facility specifically designated as a significant and
substantial harm facility by the COTP under Sec. 154.1016.
(c) In addition to the requirements in paragraphs (a) and (b) of
this section, the response plan for a mobile MTR facility must meet the
requirements of Sec. 154.1041 subpart F.
Sec. 154.1020 Definition.
Except as otherwise defined in this section, the definition in 33
CFR 154.105 apply to this subpart and subparts H and I.
Adverse weather means the weather conditions that will be
considered when identifying response systems and equipment in a
response plan for the applicable operating environment. Factors to
consider include, but are not limited to, significant wave height as
specified in Secs. 154.1045, 154.1047, 154.1225, or 154.1325, as
appropriate;
[[Page 7919]]
ice conditions, temperatures, weather-related visibility, and currents
within the COTP zone in which the systems or equipment are intended to
function.
Animal fat means a non-petroleum oil, fat, or grease derived from
animals, and not specifically identified elsewhere in this part.
Average most probable discharge means a discharge of the lesser of
50 barrels or 1 percent of the volume of the worst case discharge.
Captain of the Port (COTP) Zone means a zone specified in 33 CFR
part 3 and, where applicable, the seaward extension of that zone to the
outer boundary of the exclusive economic zone (EEZ).
Complex means a facility possessing a combination of marine-
transportation related and non-transportation-related components that
is subject to the jurisdiction of more than one Federal agency under
section 311(j) of the Clean Water Act.
Exclusive economic zone (EEZ) means the zone contiguous to the
territorial sea of the United States extending to a distance up to 200
nautical miles from the baseline from which the breadth of the
territorial sea is measured.
Facility that could reasonably be expected to cause significant and
substantial harm means any MTR facility (including piping and any
structures that are used for the transfer of oil between a vessel and a
facility) classified as a ``significant and substantial harm'' facility
under Sec. 154.1015(c) including a facility specifically designated by
the COTP under Sec. 154.1016(a).
Facility that could reasonably be expected to cause substantial
harm means any MTR facility classified as a ``substantial harm''
facility under Sec. 154.1015(b) including a facility specifically
designated by the COTP under Sec. 154.1016(a).
Fish and Wildlife and Sensitive Environment means areas that may be
identified by either their legal designation or by Area Committees in
the applicable Area Contingency Plan (ACP) (for planning) or by members
of the Federal On-Scene Coordinator's spill response structure (during
responses). These areas may include: Wetlands, national and state
parks, critical habitats for endangered or threatened species,
wilderness and natural resource areas, marine sanctuaries and estuarine
reserves, conservation areas, preserves, wildlife areas, wildlife
refuges, wild and scenic rivers, areas of economic importance,
recreational areas, national forests, Federal and state lands that are
research areas, heritage program areas, land trust areas, and
historical and archaeological sites and parks. These areas may also
include unique habitats such as: aquaculture sites and agricultural
surface water intakes, bird nesting areas, critical biological resource
areas, designated migratory routes, and designated seasonal habitats.
Great Lakes means Lakes Superior, Michigan, Huron, Erie, and
Ontario, their connecting and tributary waters, the Saint Lawrence
River as far as Saint Regis, and adjacent port areas.
Higher volume port area means the following ports:
(1) Boston, MA.
(2) New York, NY.
(3) Delaware Bay and River to Philadelphia, PA.
(4) St. Croix, VI.
(5) Pascagoula, MS.
(6) Mississippi River from Southwest Pass, LA. to Baton Rouge, LA.
(7) Louisiana Offshore Oil Port (LOOP), LA.
(8) Lake Charles, LA.
(9) Sabine-Neches River, TX.
(10) Galveston Bay and Houston Ship Channel, TX.
(11) Corpus Christi, TX.
(12) Los Angeles/Long Beach harbor, CA.
(13) San Francisco Bay, San Pablo Bay, Carquinez Strait, and Suisun
Bay to Antioch, CA.
(14) Straits of Juan De Fuca from Port Angeles, WA, to and
including Puget Sound, WA.
(15) Prince William Sound, AK.
Inland area means the area shoreward of the boundary lines defined
in 46 CFR part 7, except in the Gulf of Mexico. In the Gulf of Mexico,
it means the area shoreward of the lines of demarcation (COLREG lines)
defined in Secs. 80.740 through 80.850 of this chapter. The inland area
does not include the Great Lakes.
Marine transportation-related facility (MTR facility) means any
onshore facility or segment of a complex regulated under section 311(j)
of the Federal Water Pollution Control Act (FWPCA) by two or more
Federal agencies, including piping and any structure used or intended
to be used to transfer oil to or from a vessel, subject to regulation
under this part and any deepwater port subject to regulation under part
150 of this chapter. For a facility or segment of a complex regulated
by two or more Federal agencies under section 311(j) of the FWPCA, the
MTR portion of the complex extends from the facility oil transfer
system's connection with the vessel to the first valve inside the
secondary containment surrounding tanks in the non-transportation-
related portion of the facility or, in the absence of secondary
containment, to the valve or manifold adjacent to the tanks comprising
the non-transportation-related portion of the facility, unless another
location has otherwise been agreed to by the COTP and the appropriate
Federal official.
Maximum extent practicable means the planned capability to respond
to a worst case discharge in adverse weather, as contained in a
response plan that meets the criteria in this subpart or in a specific
plan approved by the cognizant COTP.
Maximum most probable discharge means a discharge of the lesser of
1,200 barrels or 10 percent of the volume of a worst case discharge.
Nearshore area means the area extending seaward 12 miles from the
boundary lines defined in 46 CFR part 7, except in the Gulf of Mexico.
In the Gulf of Mexico, it means the area extending seaward 12 miles
from the line of demarcation (COLREG lines) defined in Secs. 80.740-
80.850 of this chapter.
Non-persistent or Group I oil means a petroleum-based oil that, at
the time of shipment, consists of hydrocarbon fractio
FR Doc. 96-4274 Response Plans for Marine Transportation-Related Facilities
ns--
(1) At least 50 percent of which by volume, distill at a
temperature of 340 degrees C (645 degrees F); and
(2) At least 95 percent of which by volume, distill at a
temperature of 370 degrees C (700 degrees F).
Ocean means the offshore area and nearshore area as defined in this
subpart.
Offshore area means the area beyond 12 nautical miles measured from
the boundary lines defined in 46 CFR part 7 extending seaward to 50
nautical miles, except in the Gulf of Mexico. In the Gulf of Mexico, it
is the area beyond 12 nautical miles of the line of demarcation (COLREG
lines) defined in Secs. 80.740-80.850 of this chapter extending seaward
to 50 nautical miles.
Oil means oil of any kind or in any form, including, but not
limited to, petroleum, fuel oil, sludge, oil refuse, oil mixed with
wastes other than dredge spoil.
Oil spill removal organization (OSRO) means an entity that provides
response resources.
On-Scene Coordinator (OSC) means the definition in the National Oil
and Hazardous Substances Pollution Contingency Plan (40 CFR part 300).
Operating area means Rivers and Canals, Inland, Nearshore, Great
Lakes, or Offshore geographic location(s) in which a facility is
handling, storing, or transporting oil.
[[Page 7920]]
Operating environment means Rivers and Canals, Inland, Great Lakes,
or Ocean. These terms are used to define the conditions in which
response equipment is designed to function.
Operating in compliance with the plan means operating in compliance
with the provisions of this subpart including, ensuring the
availability of the response resources by contract or other approved
means, and conducting the necessary training and drills.
Other non-petroleum oil means a non-petroleum oil of any kind that
is not generally an animal fat or vegetable oil.
Persistent oil means a petroleum-based oil that does not meet the
distillation criteria for a non-persistent oil. For the purposes of
this subpart, persistent oils are further classified based on specific
gravity as follows:
(1) Group II--specific gravity of less than .85.
(2) Group III--specific gravity equal to or greater than .85 and
less than .95.
(3) Group IV--specific gravity equal to or greater than .95 and
less than or equal to 1.0.
(4) Group V--specific gravity greater than 1.0.
Qualified individual and alternate qualified individual means a
person located in the United States who meets the requirements of
Sec. 154.1026.
Response activities means the containment and removal of oil from
the land, water, and shorelines, the temporary storage and disposal of
recovered oil, or the taking of other actions as necessary to minimize
or mitigate damage to the public health or welfare or the environment.
Response resources means the personnel, equipment, supplies, and
other capability necessary to perform the response activities
identified in a response plan.
Rivers and canals means a body of water confined within the inland
area, including the Intracoastal Waterways and other waterways
artificially created for navigation, that has a project depth of 12
feet or less.
Specific gravity means the ratio of the mass of a given volume of
liquid at 15 deg.C (60 deg.F) to the mass of an equal volume of pure
water at the same temperature.
Spill management team means the personnel identified to staff the
organizational structure identified in a response plan to manage
response plan implementation.
Substantial threat of a discharge means any incident or condition
involving a facility that may create a risk of discharge of oil. Such
incidents include, but are not limited to storage tank or piping
failures, above ground or underground leaks, fires, explosions,
flooding, spills contained within the facility, or other similar
occurrences.
Tier means the combination of required response resources and the
times within which the resources must arrive on scene.
[Note: Tiers are applied in three categories:
(1) Higher Volume Port Areas,
(2) Great Lakes, and
(3) All other operating environments, including rivers and
canals, inland, nearshore, and offshore areas.
Appendix C, Table 4 of this part, provides specific guidance on
calculating response resources. Sections 154.1045(f) and 154.1135,
set forth the required times within which the response resources
must arrive on-scene.]
Vegetable oil means a non-petroleum oil or fat derived from plant
seeds, nuts, kernels or fruits, and not specifically identified
elsewhere in this part.
Worst case discharge means in the case of an onshore facility and
deepwater port, the largest foreseeable discharge in adverse weather
conditions meeting the requirements of Sec. 154.1029.
Sec. 154.1025 Operating restrictions and interim operating
authorization.
(a) The owner or operator of an MTR facility who submitted a
response plan prior to May 29, 1996, may elect to comply with any of
the provisions of this final rule by revising the appropriate section
of the previously submitted plan in accordance with Sec. 154.1065. An
owner or operator of an MTR facility who elects to comply with all
sections of this final rule must resubmit the plan in accordance with
Sec. 154.1060 of this part.
(b) No facility subject to this subpart may handle, store, or
transport oil unless it is operating in full compliance with a
submitted response plan. No facility categorized under Sec. 154.1015(c)
as a significant and substantial harm facility may handle, store, or
transport oil unless the submitted response plan has been approved by
the COTP. The owner or operator of each new facility to which this
subpart applies must submit a response plan meeting the requirements
listed in Sec. 154.1017 not less than 60 days prior to handling,
storing, or transporting oil. Where applicable, the response plan shall
be submitted along with the letter of intent required under
Sec. 154.110.
(c) Notwithstanding the requirements of paragraph (b) of this
section, a facility categorized under Sec. 154.1015(c) as a significant
and substantial harm facility may continue to handle, store, or
transport oil for 2 years after the date of submission of a response
plan, pending approval of that plan. To continue to handle, store, or
transport oil without a plan approved by the COTP, the facility owner
or operator shall certify in writing to the COTP that the owner or
operator has ensured, by contract or other approved means as described
in Sec. 154.1028(a), the availability of the necessary private
personnel and equipment to respond, to the maximum extend practicable
to a worst case discharge or substantial threat of such a discharge
from the facility. Provided that the COTP is satisfied with the
certification of response resources provided by the owner or operator
of the facility, the COTP will provide written authorization for the
facility to handle, store, or transport oil while the submitted
response plan is being reviewed. Pending approval of the submitted
response plan, deficiencies noted by the COTP must be corrected in
accordance with Sec. 154.1070.
(d) A facility may not continue to handle, store, or transport oil
if--
(1) The COTP determines that the response resources identified in
the facility certification statement or reference response plan do not
substantially meet the requirements of this subpart;
(2) The contracts or agreements cited in the facility's
certification statement or referenced response plans are no longer
valid;
(3) The facility is not operating in compliance with the submitted
plan;
(4) The response plan has not been resubmitted or approved within
the last 5 years; or
(5) The period of the authorization under paragraph (c) of this
section has expired.
Sec. 154.1026 Qualified individual and alternate qualified individual.
(a) The response plan must identify a qualified individual and at
least one alternate who meet the requirements of this section. The
qualified individual or alternate must be available on a 24-hour basis
and be able to arrive at the facility in a reasonable time.
(b) The qualified individual and alternate must:
(1) Be located in the United States;
(2) Speak fluent English;
(3) Be familiar with the implementation of the facility response
plan; and
(4) Be trained in the responsibilities of the qualified individual
under the response plan.
(c) The owner or operator shall provide each qualified individual
and alternate qualified individual identified in the plan with a
document designating them as a qualified individual and specifying
their full authority to:
(1) Activate and engage in contracting with oil spill removal
organization(s);
[[Page 7921]]
(2) Act as a liaison with the predesignated Federal On-Scene
Coordinator (OSC); and
(3) Obligate funds required to carry out response activities.
(d) The owner or operator of a facility may designate an
organization to fulfill the role of the qualified individual and the
alternate qualified individual. The organization must then identify a
qualified individual and at least one alternate qualified individual
who meet the requirements of this section. The facility owner or
operator is required to list in the response plan the organization, the
person identified as the qualified individual, and the person or
person(s) identified as the alternate qualified individual(s).
(e) The qualified individual is not responsible for--
(1) The adequacy of response plans prepared by the owner or
operator; or
(2) Contracting or obligating funds for response resources beyond
the authority contained in their designation from the owner or operator
of the facility.
(f) The liability of a qualified individual is considered to be in
accordance with the provisions of 33 USC 1321(c)(4).
Sec. 154.1028 Methods of ensuring the availability of response
resources by contract or other approved means.
(a) When required in this subpart, the availability of response
resources must be ensured by the following methods:
(1) A written contractual agreement with an oil spill removal
organization. The agreement must identify and ensure the availability
of specified personnel and equipment required under this subpart within
stipulated response times in the specified geographic areas;
(2) Certification by the facility owner or operator that specified
personnel and equipment required under this subpart are owned,
operated, or under the direct control of the facility owner or
operator, and are available within stipulated response times in the
specified geographic areas;
(3) Active membership in a local or regional oil spill removal
organization that has identified specified personnel and equipment
required under this subpart that are available to respond to a
discharge within stipulated response times in the specified geographic
areas;
(4) A document which--
(i) Identifies the personnel, equipment, and services capable of
being provided by the oil spill removal organization within stipulated
response times in the specified geographic areas;
(ii) Sets out the parties' acknowledgment that the oil spill
removal organization intends to commit the resources in the event of a
response;
(iii) Permits the Coast Guard to verify the availability of the
identified response resources through tests, inspections, and drills;
and
(iv) Is referenced in the response plan; or
(5) The identification of an oil spill removal organization with
specified equipment and personnel available within stipulated response
times in specified geographic areas. The organization must provide
written consent to being identified in the plan.
(b) The contracts and documents required in paragraph (a) of this
section must be retained at the facility and must be produced for
review upon request by the COTP.
Sec. 154.1029 Worst case discharge.
(a) The response plan must use the appropriate criteria in this
section to develop the worst case discharge.
(b) For the MTR segment of a facility, not less than--
(1) Where applicable, the loss of the entire capacity of all in-
line and break out tank(s) needed for the continuous operation of the
pipelines used for the purposes of handling or transporting oil, in
bulk, to or from a vessel regardless of the presence of secondary
containment; plus
(2) The discharge from all piping carrying oil between the marine
transfer manifold and the non-transportation-related portion of the
facility. The discharge from each pipe is calculated as follows: The
maximum time to discover the release from the pipe in hours, plus the
maximum time to shut down flow from the pipe in hours (based on
historic discharge data or the best estimate in the absence of historic
discharge data for the facility) multiplied by the maximum flow rate
expressed in barrels per hour (based on the maximum relief valve
setting or maximum system pressure when relief valves are not provided)
plus the total line drainage volume expressed in barrels for the pipe
between the marine manifold and the non-transportation-related portion
of the facility; and
(c) For a mobile facility it means the loss of the entire contents
of the container in which the oil is stored or transported.
Sec. 154.1030 General response plan contents.
(a) The plan must be written in English.
(b) A response plan must be divided into the sections listed in
this paragraph and formatted in the order specified herein unless noted
otherwise. It must also have some easily found marker identifying each
section listed below. The following are the sections and subsections of
a facility response plan:
(1) Introduction and plan contents.
(2) Emergency response action plan:
(i) Notification procedures.
(ii) Facility's spill mitigation procedures.
(iii) Facility's response activities.
(iv) Fish and wildlife and sensitive environments.
(v) Disposal plan.
(3) Training and Exercises:
(i) Training procedures.
(ii) Exercise procedures.
(4) Plan review and update procedures.
(5) Appendices.
(i) Facility-specific information.
(ii) List of contacts.
(iii) Equipment lists and records.
(iv) Communications plan.
(v) Site-specific safety and health plan.
(vi) List of acronyms and definitions.
(vii) A geographic-specific appendix for each zone in which a
mobile facility operates.
(c) The required contents for each section and subsection of the
plan are contained in Secs. 154.1035, 154.1040, and 154.1041, as
appropriate.
(d) The sections and subsections of response plans submitted to the
COTP must contain at a minimum all the information required in
Secs. 154.1035, 154.1040, and 154.1041, as appropriate. It may contain
other appropriate sections, subsections, or information that are
required by other Federal, State, and local agencies.
(e) For initial and subsequent submission, a plan that does not
follow the format specified in paragraph (b) of this section must be
supplemented with a detailed cross-reference section to identify the
location of the applicable sections required by this subpart.
(f) The information contained in a response plan must be consistent
with the National Oil and Hazardous Substances Pollution Contingency
Plan (NCP) (40 CFR part 300) and the Area Contingency Plan(s) (ACP)
covering the area in which the facility operates. Facility owners or
operators shall ensure that their response plans are in accordance with
the ACP in effect 6 months prior to initial plan submission or the
annual plan review required under Sec. 154.1065(a). Facility owners or
operators are not required to, but may at their option, conform to an
ACP which is less than 6 months old at the time of plan submission.
[[Page 7922]]
Sec. 154.1035 Specific requirements for facilities that could
reasonably be expected to cause significant and substantial harm to the
environment.
(a) Introduction and plan content. This section of the plan must
include facility and plan information as follows:
(1) The facility's name, street address, city, county, state, ZIP
code, facility telephone number, and telefacsimile number, if so
equipped. Include mailing address if different from street address.
(2) The facility's location described in a manner that could aid
both a reviewer and a responder in locating the specific facility
covered by the plan, such as, river mile or location from a known
landmark that would appear on a map or chart.
(3) The name, address, and procedures for contacting the facility's
owner or operator on a 24-hour basis.
(4) A table of contents.
(5) During the period that the submitted plan does not have to
conform to the format contained in this subpart, a cross index, if
appropriate.
(6) A record of change(s) to record information on plan updates.
(b) Emergency Response Action Plan. This section of the plan must
be organized in the subsections described in this paragraph:
(1) Notification procedures. (i) This subsection must contain a
prioritized list identifying the person(s), including name, telephone
number, and their role in the plan, to be notified of a discharge or
substantial threat of a discharge of oil. The telephone number need not
be provided if it is listed separately in the list of contacts required
in the plan. This Notification Procedures listing must include--
(A) Facility response personnel, the spill management team, oil
spill removal organizations, and the qualified individual(s) and the
designated alternate(s); and
(B) Federal, State, or local agencies, as required.
(ii) This subsection must include a form, such as that depicted in
Figure 1, which contains information to be provided in the initial and
follow-up notifications to Federal, State, and local agencies. The form
shall include notification of the National Response Center as required
in part 153 of this chapter. Copies of the form also must be placed at
the location(s) from which notification may be made. The initial
notification form must include space for the information contained in
Figure 1. The form must contain a prominent statement that initial
notification must not be delayed pending collection of all information.
Figure 1.--Information on discharge *
[Involved Parties]
------------------------------------------------------------------------
(A) Reporting party (B) Suspected responsible party
------------------------------------------------------------------------
Name Name
Phones ( ) - Phones ( ) -
Company Company
Position Organization Type:
Address Private citizen
Address Private enterprise
Public utility
Local government
State government
Federal government
City City
State State
Zip Zip
------------------------------------------------------------------------
* It is not necessary to wait for all information before calling NRC.
National Response Center--1-800-424-8802.
Were materials Discharged (Y/N)?
Calling for Responsible Party (Y/N)
------------------------------------------------------------------------
Incident Description
------------------------------------------------------------------------
Source and/or Cause of Incident
------------------------------------------------------------------------
Date - - Time:
Cause
------------------------------------------------------------------------
Incident Address/Location Nearest City
Distance from City
Storage Tank Container Type--Above ground (Y/N) Below ground (Y/
N) Unknown
------------------------------------------------------------------------
Facility Capacity
------------------------------------------------------------------------
Tank Capacity
Latitude Degrees
Longitude Degrees
Mile Post or River Mile
------------------------------------------------------------------------
Materials
------------------------------------------------------------------------
Discharge Unit of Quantity Measure Discharged Material
Quantity in Water
------------------------------------------------------------------------
[[Page 7923]]
Response Action
------------------------------------------------------------------------
Actions Taken to Correct or Mitigate Incident
------------------------------------------------------------------------
Impact
------------------------------------------------------------------------
Number of Injuries Number of Fatalities
Were there Evacuations (Y/N/U)? Number Evacuated
Was there any Damage (Y/N/U)? Damage in Dollars
------------------------------------------------------------------------
Additional Information
------------------------------------------------------------------------
Any information about the Incident not recorded elsewhere in the report
------------------------------------------------------------------------
Caller Notifications
------------------------------------------------------------------------
USCG EPA State Other
(2) Facility's spill mitigation procedures. (i) This subsection
must describe the volume(s) and oil groups that would be involved in
the--
(A) Average most probable discharge from the MTR facility;
(B) Maximum most probable discharge from the MTR facility;
(C) Worst case discharge from the MTR facility; and
(D) Where applicable, the worst case discharge from the non-
transportation-related facility. This must be the same volume provided
in the response plan for the non-transportation-related facility.
(ii) This subsection must contain prioritized procedures for
facility personnel to mitigate or prevent any discharge or substantial
threat of a discharge of oil resulting from operational activities
associated with internal or external facility transfers including
specific procedures to shut down affected operations. Facility
personnel responsible for performing specified procedures to mitigate
or prevent any discharge or potential discharge shall be identified by
job title. A copy of these procedures shall be maintained at the
facility operations center. These procedures must address actions to be
taken by facility personnel in the event of a discharge, potential
discharge, or emergency involving the following equipment and
scenarios:
(A) Failure of manifold, mechanical loading arm, other transfer
equipment, or hoses, as appropriate;
(B) Tank overfill;
(C) Tank failure;
(D) Piping rupture;
(E) Piping leak, both under pressure and not under pressure, if
applicable;
(F) Explosion or fire; and
(G) Equipment failure (e.g. pumping system failure, relief valve
failure, or other general equipment relevant to operational activities
associated with internal or external facility transfers.)
(iii) This subsection must contain a listing of equipment and the
responsibilities of facility personnel to mitigate an average most
probable discharge.
(3) Facility's response activities. (i) This subsection must
contain a description of the facility personnel's responsibilities to
initiate a response and supervise response resources pending the
arrival of the qualified individual.
(ii) This subsection must contain a description of the
responsibilities and authority of the qualified individual and
alternate as required in Sec. 154.1026.
(iii) This subsection must describe the organizational structure
that will be used to manage the response actions. This structure must
include the following functional areas.
(A) Command and control;
(B) Public information;
(C) Safety;
(D) Liaison with government agencies;
(E) Spill Operations;
(F) Planning;
(G) Logistics support; and
(H) Finance.
(iv) This subsection must identify the oil spill removal
organizations and the spill management team to:
(A) Be capable of providing the following response resources:
(1) Equipment and supplies to meet the requirements of
Secs. 154.1045, 154.1047 or subparts H or I of this part, as
appropriate; and
(2) Trained personnel necessary to continue operation of the
equipment and staff of the oil spill removal organization and spill
management team for the first 7 days of the response.
(B) This section must include job descriptions for each spill
management team member within the organizational structure described in
paragraph (b)(3)(iii) of this section. These job descriptions should
include the responsibilities and duties of each spill management team
member in a response action.
(v) For mobile facilities that operate in more than one COTP zone,
the plan must identify the oil spill removal organization and the spill
management team in the applicable geographic-specific appendix. The oil
spill removal organization(s) and the spill management team discussed
in paragraph (b)(3)(iv)(A) of this section must be included for each
COTP zone in which the facility will handle, store, or transport oil in
bulk.
(4) Fish and wildlife and sensitive environments. (i) This section
of the plan must identify areas of economic importance and
environmental sensitivity, as identified in the ACP, which are
potentially impacted by a worst case discharge. ACPs are required under
section 311(j)(4) of the FWPCA to identify fish and wildlife and
sensitive environments. The applicable ACP shall be used to designate
fish and wildlife and sensitive environments in the plan. Changes to
the ACP regarding fish and wildlife and sensitive environments shall be
included in the annual update of the response plan, when available.
(ii) For a worst case discharge from the facility, this section of
the plan must--
(A) List all fish and wildlife and sensitive environments
identified in the ACP which are potentially impacted by a discharge of
persistent oils, non-persistent oils, or non-petroleum oils.
(B) Describe all the response actions that the facility anticipates
taking to protest these fish and wildlife and sensitive environments.
(C) Contain a map or chart showing the location of those fish and
wildlife and sensitive environments which are potentially impacted. The
map or chart shall also depict each response action that the facility
anticipates taking to protect these areas. A legend of
[[Page 7924]]
activities must be included on the map page.
(iii) For a worst case discharge, this section must identify
appropriate equipment and required personnel, available by contract or
other approved means as described in Sec. 154.1028, to protect fish and
wildlife and sensitive environments which fall within the distances
calculated using the methods outlined in this paragraph as follows:
(A) Identify the appropriate equipment and required personnel to
protect all fish and wildlife and sensitive environments in the ACP for
the distances, as calculated in paragraph (b)(4)(iii)(B) of this
section, that the persistent oils, non-persistent oils, or non-
petroleum oils are likely to travel in the noted geographic area(s) and
number of days listed in Table 2 of appendix C of this part;
(B) Calculate the distances required by paragraph (b)(4)(iii)(A) of
this section by selecting one of the methods described in this
paragraph;
(1) Distances may be calculated as follows:
(i) For persistent oils and non-petroleum oils discharged into non-
tidal waters, the distance from the facility reached in 48 hours at
maximum current.
(ii) For persistent and non-petroleum oils discharged into tidal
waters, 15 miles from the facility down current during ebb tide and to
the point of maximum tidal influence or 15 miles, whichever is less,
during flood tide.
(iii) For non-persistent oils discharged into non-tidal waters, the
distance from the facility reached in 24 hours at maximum current.
(iv) For non-persistent oils discharged into tidal waters, 5 miles
from the facility down current during ebb tide and to the point of
maximum tidal influence or 5 miles, whichever is less, during flood
tide.
(2) A spill trajectory or model may be substituted for the
distances calculated under paragraph (b)(4)(iii)(B)(l) of this section.
The spill trajectory or model must be acceptable to the COTP.
(3) The procedures contained in the Environmental Protection's
Agency's regulations on oil pollution prevention for non-
transportation-related onshore facilities at 40 CFR part 112, appendix
C, Attachment C-III may be substituted for the distances listed in non-
tidal and tidal waters; and
(C) Based on historical information or a spill trajectory or model,
the COTP may require the additional fish and wildlife and sensitive
environments also be protected.
(5) Disposal Plan. This subsection must describe any actions to be
taken or procedures to be used to ensure that all recovered oil and oil
contaminated debris produced as a result of any discharge are disposed
according to Federal, state, or local requirements.
(c) Training and exercises. This section must be divided into the
following two subsections:
(1) Training procedures. This subsection must describe the training
procedures and programs of the facility owner or operator to meet the
requirements in Sec. 154.1050.
(2) Exercise procedures. This subsection must describe the exercise
program to be carried out by the facility owner or operator to meet the
requirements in Sec. 154.1055.
(d) Plan review and update procedures. This section must address
the procedures to be followed by the facility owner or operator to meet
the requirements of Sec. 154.1065 and the procedures to be followed for
any post-discharge review of the plan to evaluate and validate its
effectiveness.
(e) Appendices. This section of the response plan must include the
appendices described in this paragraph.
(1) Facility-specific information. This appendix must contain a
description of the facility's principal characteristics.
(i) There must be a physical description of the facility including
a plan of the facility showing the mooring areas, transfer locations,
control stations, locations of safety equipment, and the location and
capacities of all piping and storage tanks.
(ii) The appendix must identify the sizes, types, and number of
vessels that the facility can transfer oil to or from simultaneously.
(iii) The appendix must identify the first valve(s) on facility
piping separating the transportation-related portion of the facility
from the non-transportation-related portion of the facility, if any.
For piping leading to a manifold located on a dock serving tank
vessels, this valve is the first valve inside the secondary containment
required by 40 CFR part 112.
(iv) The appendix must contain information on the oil(s) and
hazardous material handled, stored, or transported at the facility in
bulk. A material safety data sheet meeting the requirements of 29 CFR
1910.1200, 33 CFR 154.310(a)(5) or an equivalent will meet this
requirement. This information can be maintained separately providing it
is readily available and the appendix identifies its location. This
information must include--
(A) The generic or chemical name;
(B) A description of the appearance and odor;
(C) The physical and chemical characteristics;
(D) The hazards involved in handling the oil(s) and hazardous
materials. This shall include hazards likely to be encountered if the
oil(s) and hazardous materials come in contact as a result of a
discharge; and
(E) A list of firefighting procedures and extinguishing agents
effective with fires involving the oil(s) and hazardous materials.
(v) The appendix may contain any other information which the
facility owner or operator determines to be pertinent to an oil spill
response.
(2) List of contacts. This appendix must include information on 24-
hour contact of key individuals and organizations. If more appropriate,
this information may be specified in a geographic-specific appendix.
The list must include--
(i) The primary and alternate qualified individual(s) for the
facility;
(ii) The contact(s) identified under paragraph (b)(3)(iv) of this
section for activation of the response resources; and
(iii) Appropriate Federal, State, and local officials.
(3) Equipment list and records. This appendix must include the
information specified in this paragraph.
(i) The appendix must contain a list of equipment and facility
personnel required to respond to an average most probable discharge, as
defined in Sec. 154.1020. The appendix must also list the location of
the equipment.
(ii) The appendix must contain a detailed listing of all the major
equipment identified in the plan as belonging to an oil spill removal
organization(s) that is available, by contract or other approved means
as described in Sec. 154.1028(a), to respond to a maximum most probable
or worst case discharge, as defined in Sec. 154.1020. The detailed
listing of all major equipment may be located in a separate document
referenced by the plan. Either the appendix or the separate document
referenced in the plan must provide the location of the major response
equipment.
(iii) It is not necessary to list response equipment from oil spill
removal organization(s) when the organization has been classified by
the Coast Guard and their capacity has been determined to equal or
exceed the response capability needed by the facility. For oil spill
removal organization(s) classification by the Coast Guard, the
classified must be noted in this section of the plan. When it is
necessary for the appendix to contain a listing of response equipment,
it shall include all of the following items that are identified in the
[[Page 7925]]
response plan: Skimmers; booms; dispersant application, in-situ
burning, bioremediation equipment and supplies, and other equipment
used to apply other chemical agents on the NCP Product Schedule (if
applicable); communications, firefighting, and beach cleaning
equipment; boats and motors; disposal and storage equipment; and heavy
equipment. The list must include for each piece of equipment--
(A) The type, make, model, and year of manufacture listed on the
nameplate of the equipment;
(B) For oil recovery devices, the effective daily recovery rate, as
determined using section 6 of Appendix C of this part;
(C) For containment boom, the overall boom height (draft and
freeboard) and type of end connectors;
(D) The spill scenario in which the equipment will be used for or
which it is contracted;
(E) The total daily capacity for storage and disposal of recovered
oil;
(F) For communication equipment, the type and amount of equipment
intended for use during response activities. Where applicable, the
primary and secondary radio frequencies must be specified.
(G) Location of the equipment; and
(H) The date of the last inspection by the oil spill removal
organization(s).
(4) Communications plan. This appendix must describe the primary
and alternate method of communication during discharges, including
communications at the facility and at remote locations within the areas
covered by the response plan. The appendix may refer to additional
communications packages provided by the oil spill removal organization.
This may reference another existing plan or document.
(5) Site-specific safety and health plan. This appendix must
describe the safety and health plan to be implemented for any response
location(s). It must provide as much detailed information as is
practicable in advance of an actual discharge. This appendix may
reference another existing plan requiring under 29 CFR 1910.120.
(6) List of acronyms and definitions. This appendix must list all
acronyms used in the response plan including any terms or acronyms used
by Federal, State, or local governments and any operational terms
commonly used at the facility. This appendix must include all
definitions that are critical to understanding the response plan.
Sec. 154.1040 Specific requirements for facilities that could
reasonably be expected to cause substantial harm to the environment.
(a) The owner or operator of a facility that, under Sec. 154.1015,
could reasonably be expected to cause substantial harm to the
environment, shall submit a response plan that meets the requirements
of Sec. 154.1035, except as modified by this section.
(b) The facility's response activities section of the response plan
need not list the facility or corporate organizational structure that
will be used to manage the response, as required by
Sec. 154.1035(b)(3)(iii).
(c) The owner or operator of a facility must ensure the
availability of response resources required to be identified in
Sec. 154.1035(b)(3)(iv) by contract or other approved means described
in Sec. 154.1028.
(d) A facility owner or operator must have at least 200 feet of
containment boom and the means of deploying and anchoring the boom
available at the spill site within 1 hour of the detection of a spill
to respond to the average most probable discharge in lieu of the
quantity of containment boom specified in Sec. 154.1045(c)(1). Based on
site-specific or facility-specific information, the COTP may specify
that additional quantities of containment boom are available within one
hour. In addition, there must be adequate sorbent material for initial
response to an average most probable discharge. If the facility is a
fixed facility, the containment boom and sorbent material must be
located at the facility. If the facility is a mobile facility, the
containment boom and sorbent must be available locally and be at the
site of the discharge within 1 hour of its discovery.
Sec. 154.1041 Specific response information to be maintained on mobile
MTR facilities.
(a) Each mobile MTR facility must carry the following information
as contained in the response plan when performing transfer operations:
(1) A description of response activities for a discharge which may
occur during transfer operations. This may be a narrative description
or a list of procedures to be followed in the event of a discharge.
(2) Identity of response resources to respond to a discharge from
the mobile MTR facility.
(3) List of the appropriate persons and agencies (including the
telephone numbers) to be contacted in regard to a discharge and its
handling, including the National Response Center.
(b) The owner or operator of the mobile facility must also retain
the information in this paragraph at the principal place of business.
Sec. 154.1045 Response plan development and evaluation criteria for
facilities that handle, store, or transport Group I through Group IV
petroleum oils.
(a) The owner or operator of a facility that handles, stores, or
transports Group I through Group IV petroleum oils shall use the
criteria in this section to evaluate response resources identified in
the response plan for the specified operating environment.
(1) The criteria in Table 1 of appendix C of this part are to be
used solely for identification of appropriate equipment in a response
plan. These criteria reflect conditions used for planning purposes to
select mechanical response equipment and are not conditions that would
limit response actions or affect normal facility operations.
(2) The response resources must be evaluated considering
limitations for the COTP zones in which the facility operates,
including but not limited to--
(i) Ice conditions;
(ii) Debris;
(iii) Temperature ranges;
(iv) Weather-related visibility; and
(v) Other appropriate environmental conditions as determined by the
COTP.
(3) The COTP may reclassify a specific body of water or location
within the COTP zone. Any reclassifications will be identified by the
COTP in the applicable ACP. Reclassifications may be to--
(i) A more stringent operating environment if the prevailing wave
conditions exceed the significant wave height criteria during more than
35 percent of the year; or
(ii) A less stringent operating environment if the prevailing wave
conditions do not exceed the significant wave height criteria for the
less stringent operating environment during more than 35 percent of the
year.
(b) Response equipment must--
(1) Meet or exceed the operating criteria listed in Table 1 of
appendix C of this part;
(2) Function in the applicable operating environment; and
(3) Be appropriate for the petroleum oil carried.
(c) The response plan for a facility that handles, stores, or
transports Group I through Group IV petroleum oils must identify
response resources that are available, by contract or other approved
means as described in Sec. 154.1028(a)(1)(4), to respond to the
facility's average most probable discharge. The response resources must
include, at a minimum--
(1) 1,000 feet of containment boom or two times the length of the
largest vessel
[[Page 7926]]
that regularly conducts petroleum oil transfers to or from the
facility, whichever is greater, and the means of deploying and
anchoring the boom available at the spill site within 1 hour of the
detection of a spill; and
(2) Oil recovery devices and recovered oil storage capacity capable
of being at the spill site within 2 hours of the discovery of a
petroleum oil discharge from a facility.
(d) The response plan for a facility that handles, stores, or
transports Group I through Group IV petroleum oils must identify
response resources that are available, by contract or other approved
means as described in Sec. 154.1028(a)(1)(4), to respond to a discharge
up to the facility's maximum most probable discharge volume.
(1) The response resources must include sufficient containment
boom, oil recovery devices, and storage capacity for any recovery of up
to the maximum most probable discharge planning volume, as contained in
appendix C.
(2) The response resources must be appropriate for each group of
petroleum oil identified in Sec. 154.1020 that is handled, stored, or
transported by the facility.
(3) These response resources must be positioned such that they can
arrive at the scene of a discharge within the following specified
times:
(i) The equipment identified in paragraphs (c)(1) and (c)(2) of
this section or in Sec. 154.1040(d) must arrive within the times
specified in those paragraphs or that section, as appropriate.
(ii) In higher volume port areas and the Great Lakes, response
resources must be capable of arriving on scene within 6 hours of the
discovery of an petroleum oil discharge from a facility.
(iii) In all other locations, response resources must be capable of
arriving on scene within 12 hours of the discovery of a petroleum oil
discharge from a facility.
(4) The COTP may determine that mobilizing response resources to an
area beyond the response times indicated in this paragraph invalidates
the response plan. In this event, the COTP may impose additional
operational restrictions (e.g., limitations on the number of transfers
at a facility), or, at the COTP's discretion, the facility may operate
with temporarily modified response plan development and evaluation
criteria (e.g., modified response times, alternate response resources,
etc.).
(e) The response plan for a facility that handles, stores, or
transports Group I through Group IV petroleum oils must identify the
response resources that are available, by contract or other approved
means as described in Sec. 154.1028(a)(1)(4), to respond to the worst
case discharge volume of petroleum oil to the maximum extent
practicable.
(1) The location of these response resources must be suitable to
meet the response times identified in paragraph (f) of this section for
the applicable geographic area(s) of operation and response tier.
(2) The response resources must be appropriate for--
(i) The volume of the facility's worst case discharge;
(ii) Group(s) of petroleum oil as identified in Sec. 154.1020 that
are handled, stored, or transported by the facility; and
(iii) The geographic area(s) in which the facility operates.
(3) The response resources must include sufficient boom, oil
recovery devices, and storage capacity to recover the worst case
discharge planning volumes.
(4) The guidelines in appendix C of this part must be used for
calculating the quantity of response resources required to respond at
each tier to the worst case discharge to the maximum extent
practicable.
(5) When determining response resources necessary to meet the
requirements of this section, a portion of those resources must be
capable of use in close-to-shore response activities in shallow water.
The following percentages of the response equipment identified for the
applicable geographic area must be capable of operating in waters of 6
feet or less depth.
(i) Offshore--10 percent.
(ii) Nearshore/inland/Great Lakes/rivers and canals--20 percent.
(6) The COTP may determine that mobilizing response resources to an
area beyond the response times indicated in this paragraph invalidates
the response plan. In this event, the COTP may impose additional
operational restrictions (e.g., limitations on the number of transfers
at a facility), or, at the COTP's discretion, the facility may be
permitted to operate with temporarily modified response plan
development and evaluation criteria (e.g., modified response times,
alternate response resources, etc.).
(f) Response equipment identified in a response plan for a facility
that handles, stores, or transports Group I through Group IV petroleum
oils must be capable of arriving on scene within the times specified in
this paragraph for the applicable response tier in a higher volume port
area, Great Lakes, and in other areas. Response times for these tiers
from the time of discovery of a discharge are--
------------------------------------------------------------------------
Tier 1 Tier 2 Tier 3
(hrs.) (hrs.) (hrs.)
------------------------------------------------------------------------
Higher volume port area (except for a TAPAA
facility located in Prince William Sound,
see Sec. 154.1135)......................... 6 30 54
Great Lakes.................................. 12 36 60
All other river and canal, inland, nearshore,
and offshore areas.......................... 12 36 60
------------------------------------------------------------------------
(g) For the purposes of arranging for response resources for a
facility that handles, stores, or transports Group I through Group IV
petroleum oils, by contract or other approved means as described in
Sec. 154.1028(a)(1)-(4), response equipment identified for Tier 1 plan
credit must be capable of being mobilized and en route to the scene of
a discharge within 2 hours of notification. The notification procedures
identified in the plan must provide for notification and authorization
of mobilization of identified Tier 1 response resources--
(1) Either directly or through the qualified individual; and
(2) Within 30 minutes of a discovery of a discharge or substantial
threat of discharge.
(h) Response resources identified for Tier 2 and Tier 3 plan credit
must be capable of arriving on scene within the time specified for the
applicable tier.
(i) The response plan for a facility that is located in any
environment with year-round preapproval for use of dispersants and that
handles, stores, or transports Group II or III persistent petroleum
oils may request a credit for up to 25 percent of the on-water recovery
capability set forth by this part. To receive this credit, the facility
owner or operator must identify in the plan and ensure, by contract or
other approved means as described in Sec. 154.1028(a)(1)-(4), the
availability of specified resources to apply the dispersants and to
monitor their effectiveness. The extent of the credit will be based on
the volumes of the dispersant available to sustain operations at the
manufacturers' recommend dosage rates. Resources identified for plan
credit should be capable of being on scene within 12 hours of a
discovery of a discharge. Identification of these resources does not
imply that they will be authorized for use. Actual authorization for
use
[[Page 7927]]
during a spill response will be governed by the provisions of the NCP
and the applicable ACP.
(j) A response plan for a facility that handles, stores, or
transports Group I through Group IV petroleum oils must identify
response resources with firefighting capability. The owner or operator
of a facility that does not have adequate firefighting resources
located at the facility or that can not rely on sufficient local
firefighting resources must identify and ensure, by contract or other
approved means as described in Sec. 154.1028(a)(1)-(4), the
availability of adequate firefighting resources. The response plan must
also identify an individual located at the facility to work with the
fire department for petroleum oil fires. This individual shall also
verify that sufficient well-trained firefighting resources are
available within a reasonable time to respond to a worst case
discharge. The individual may be the qualified individual as defined in
Sec. 154.1020 and identified in the response plan or another
appropriate individual located at the facility.
(k) The response plan for a facility that handles, stores, or
transports Groups I through IV petroleum oils must identify equipment
and required personnel available, by contract or other approved means
as described in Sec. 154.1028(a) (1)-(4), to protect fish and wildlife
and sensitive environments.
(1) Except as set out in paragraph (k)(2) of this section, the
identified response resources must include the quantities of boom
sufficient to protect fish and wildlife and sensitive environments as
required by Sec. 154.1035(b)(4).
(2) The resources and response methods identified in a facility
response plan must be consistent with the required resources and
response methods to be used in fish and wildlife and sensitive
environments, contained in the appropriate ACP. Facility owners or
operators shall ensure that their response plans are in accordance with
the ACP in effect 6 months prior to initial plan submission or the
annual plan review required under Sec. 154.1065(a). Facility owners or
operators are not required to, but may at their option, conform to an
ACP which is less than 6 months old at the time of plan submission.
(l) The response plan for a facility that handles, stores, or
transports Groups I through IV petroleum oils must identify an oil
spill removal organization(s) with response resources that are
available, by contract or other approved means as described in
Sec. 154.1028(a) (1)-(4), to effect a shoreline cleanup operation
commensurate with the quantity of emulsified petroleum oil to be
planned for in shoreline cleanup operations.
(1) Except as required in paragraph (l)(2) of this section, the
shoreline cleanup response resources required must be determined as
described in appendix C of this part.
(2) The resources and response methods identified in a facility
response plan must be consistent with the required shoreline cleanup
resources and methods contained in the appropriate ACP. Facility owners
or operators shall ensure that their response plans are in accordance
with the ACP in effect 6 months prior to initial plan submission or the
annual plan review required under Sec. 154.1065(a). Facility owners or
operators are not required to, but may at their option, conform to an
ACP which is less than 6 months old at the time of plan submission.
(m) Appendix C of this part describes the procedures to determine
the maximum extent practicable quantity of response resources that must
be identified and available, by contract or other approved means as
described in Sec. 154.1028(a) (1)-(4), for the maximum most probable
discharge volume, and for each worst case discharge response tier.
(1) Included in appendix C of this part is a cap that recognizes
the practical and technical limits of response capabilities that an
individual facility owner or operator can be expected to contract for
in advance.
(2) Table 5 in appendix C of this part lists the caps that apply in
February 18, 1993, and February 18, 1998. Depending on the quantity and
type of petroleum oil handled by the facility and the facility's
geographic area of operations, the resource capability caps in this
table may be reached. The owner or operator of a facility whose
estimated recovery capacity exceeds the applicable contracting caps in
Table 5 shall identify sources of additional equipment equal to twice
the cap listed in Tiers 1, 2, and 3 or the amount necessary to reach
the calculated planning volume, whichever is lower. The identified
resources must be capable of arriving on scene not later than the Tier
1, 2, and 3 response times in this section. No contract is required.
While general listings of available response equipment may be used to
identify additional sources, a response plan must identify the specific
sources, locations, and quantities of equipment that a facility owner
or operator has considered in his or her planning. When listing Coast
Guard classified oil spill removal organization(s) which have
sufficient removal capacity to recover the volume above the response
capability cap for the specific facility, as specified in Table 5 in
appendix C of this part, it is not necessary to list specific
quantities of equipment.
(n) The Coast Guard will initiate a review of cap increases and
other requirements contained within this subpart that are scheduled to
be phased in over time. Any changes in the requirements of this section
will occur through a public notice and comment process.
(1) During this review, the Coast Guard will determine if the
scheduled increase for February 1998 remains practicable, and will also
establish a specific cap for 2003. The review will include but is not
limited to--
(i) Increase in skimming efficiencies and design technology;
(ii) Oil tracking technology;
(iii) High rate response techniques;
(iv) Other applicable response technologies; and
(v) Increases in the availability of private response resources.
(2) All scheduled future requirements will take effect unless the
Coast Guard determines that they are not practicable. Scheduled changes
will be effective in February 1998 and 2003 unless the review of the
additional requirements has not been completed by the Coast Guard. If
this occurs, the additional requirements will not be effective until 90
days after publication of a Federal Register notice with the results of
the review.
Sec. 154.1047 Response plan development and evaluation criteria for
facilities that handle, store, or transport Group V petroleum oils.
(a) An owner or operator of a facility that handles, stores, or
transports Group V petroleum oils must provide information in his or
her response plan that identifies--
(1) Procedures and strategies for responding to a worst case
discharge of Group V petroleum oils to the maximum extent practicable;
and
(2) Sources of the equipment and supplies necessary to locate,
recover, and mitigate such a discharge.
(b) An owner or operator of a facility that handles, stores, or
transports Group V petroleum oil must ensure that any equipment
identified in a response plan is capable of operating in the conditions
expected in the geographic area(s) in which the facility operates using
the criteria in Table 1 of appendix C of this part. When evaluating the
operability of equipment, the facility owner or operator must consider
limitations that are identified in the ACPs for the COTP
[[Page 7928]]
zones in which the facility operates, including--
(1) Ice conditions;
(2) Debris;
(3) Temperature ranges; and
(4) Weather-related visibility.
(c) The owner or operator of a facility that handles, stores, or
transports Group V petroleum oil must identify the response resources
that are available by contract or other approved means as described in
Sec. 154.1028. The equipment identified in a response plan must
include--
(1) Sonar, sampling equipment, or other methods for locating the
petroleum oil on the bottom or suspended in the water column;
(2) Containment boom, sorbent boom, silt curtains, or other methods
for containing the petroleum oil that may remain floating on the
surface or to reduce spreading on the bottom;
(3) Dredges, pumps, or other equipment necessary to recover
petroleum oil from the bottom and shoreline;
(4) Equipment necessary to assess the impact of such discharges;
and
(5) Other appropriate equipment necessary to respond to a discharge
involving the type of petroleum oil handled, stored, or transported.
(d) Response resources identified in a response plan for a facility
that handles, stores, or transports Group V petroleum oils under
paragraph (c) of this section must be capable of being at the spill
site within 24 hours of discovery of a discharge.
(e) A response plan for a facility that handles, stores, or
transports Group V petroleum oils must identify response resources with
firefighting capability. The owner or operator of a facility that does
not have adequate firefighting resources located at the facility or
that can not rely on sufficient local firefighting resources must
identity and ensure, by contract or other approved means as described
in Sec. 154.1028, the availability of adequate firefighting resources.
The response plan must also identify an individual located at the
facility to work with the fire department for petroleum oil fires. This
individual shall also verify that sufficient well-trained firefighting
resources are available within a reasonable response time to a worst
case scenario. The individual may be the qualified individual as
defined in Sec. 154.1020 and identified in the response plan or another
appropriate individual located at the facility.
Sec. 154.1050 Training.
(a) A response plan submitted to meet the requirements of
Secs. 154.1035 or 154.1040, as appropriate, must identify the training
to be provided to each individual with responsibilities under the plan.
A facility owner or operator must identify the method to be used for
training any volunteers or casual laborers used during a response to
comply with the requirements of 29 CFR 1910.120.
(b) A facility owner or operator shall ensure the maintenance of
records sufficient to document training of facility personnel; and
shall make them available for inspection upon request by the U.S. Coast
Guard. Records for facility personnel must be maintained at the
facility for 3 years.
(c) Where applicable, a facility owner or operator shall ensure
that an oil spill removal organization identified in a response plan to
meet the requirements of this subpart maintains records sufficient to
document training for the organization's personnel and shall make them
available for inspection upon request by the facility's management
personnel, the qualified individual, and U.S. Coast Guard. Records must
be maintained for 3 years following completion of training.
(d) The facility owner or operator remains responsible for ensuring
that all private response personnel are trained to meet the
Occupational Safety and Health Administration (OSHA) standards for
emergency response operations in 29 CFR 1910.120.
Sec. 154.1055 Exercises.
(a) A response plan submitted by an owner or operator of an MTR
facility must include an exercise program containing both announced and
unannounced exercises. The following are the minimum exercise
requirements for facilities covered by this subpart:
(1) Qualified individual notification exercises (quarterly).
(2) Spill management team tabletop exercises (annually). In a 3-
year period, at least one of these exercises must include a worst case
discharge scenario.
(3) Equipment deployment exercises:
(i) Semiannually for facility owned and operated equipment.
(ii) Annually for oil spill removal organization equipment.
(4) Emergency procedures exercises (optional).
(5) Annually, at least one of the exercises listed in
Sec. 154.1055(a)(2) through (4) must be unannounced. Unannounced means
the personnel participating in the exercise must not be advised in
advance, of the exact date, time and scenario of the exercise.
(6) The facility owner or operator shall design the exercise
program so that all components of the response plan are exercised at
least once every 3 years. All of the components do not have to be
exercised at one time; they may be exercised over the 3-year period
through the required exercises or through an Area exercise.
(b) A facility owner or operator shall participate in unannounced
exercises, as directed by the COTP. The objectives of the unannounced
exercises will be to test notifications and equipment deployment for
response to the average most probable discharge. After participating in
an unannounced exercise directed by a COTP, the owner or operator will
not be required to participate in another COTP initiated unannounced
exercise for at least 3 years from the date of the exercise.
(c) A facility owner or operator shall participate in Area
exercises as directed by the applicable On-Scene Coordinator. The Area
exercises will involve equipment deployment to respond to the spill
scenario developed by the Exercise Design Team, of which the facility
owner or operator will be a member. After participating in an Area
exercise, a facility owner or operator will not be required to
participate in another Area exercise for at least 6 years.
(d) The facility owner or operator shall ensure that adequate
records of all required exercises are maintained at the facility for 3
years. Records shall be made available to the Coast Guard upon request.
(e) The response plan submitted to meet the requirements of this
subpart must specify the planned exercise program. The plan must detail
the exercise program, including the types of exercises, frequency,
scope, objectives and the scheme for exercising the entire response
plan every 3 years.
(f) Compliance with the National Preparedness for Response Exercise
Program (PREP) Guidelines will satisfy the facility response plan
exercise requirements.
Sec. 154.1057 Inspection and maintenance of response resources.
(a) A facility owner or operator required to submit a response plan
under this part must ensure that--
(1) Containment booms, skimmers, vessels, and other major equipment
listed or referenced in the plan are periodically inspected and
maintained in good operating condition, in accordance with
manufacturer's recommendations, and best commercial practices; and
(2) All inspection and maintenance is documented and that these
records are maintained for 3 years.
[[Page 7929]]
(b) For equipment which must be inspected and maintained under this
section the Coast Guard may--
(1) Verify that the equipment inventories exist as represented;
(2) Verify the existences of records required under this section;
(3) Verify that the records of inspection and maintenance reflect
the actual condition of any equipment listed or referenced; and
(4) Inspect and require operational tests of equipment.
(c) This section does not apply to containment booms, skimmers,
vessels, and other major equipment listed or referenced in the plan and
ensured available from an oil spill removal organization through the
written consent required under Sec. 154.1028(a)(5).
Sec. 154.1060 Submission and approval procedures.
(a) The owner or operator of a facility to which this subpart
applies shall submit one copy of a facility response plan meeting the
requirements of this subpart to the COTP for initial review and, if
appropriate, approval.
(b) The owner or operator of a facility to which this subpart
applies shall include a statement certifying that the plan meets the
applicable requirements of subparts F, G, H, and I of this part, as
appropriate.
(c) For an MTR facility that is located in the inland response zone
where the EPA Regional Administrator is the predesignated Federal On-
Scene Coordinator, the COTP may consult with the EPA Federal On-Scene
Coordinator prior to any final approval.
(d) For an MTR facility identified in Sec. 154.1015(c) of this
subpart that is also required to prepare a response plan under 40 CFR
part 112, if the COTP determines that the plan meets all applicable
requirements and the EPA Regional Administrator raises no objection to
the response plan contents, the COTP will notify the facility owner or
operator in writing that the plan is approved.
(e) The plan will be valid for a period of up to 5 years. The
facility owner or operator must resubmit an updated plan every 5 years
as follows:
(1) For facilities identified in only Sec. 154.1015(b) of this
subpart, the 5-year period will commence on the date the plan is
submitted to the COTP.
(2) For facilities identified in Sec. 154.1015(c) of this subpart,
the 5-year period will commence on the date the COTP approves the plan.
(3) All resubmitted response plans shall be accompanied by a cover
letter containing a detailed listing of all revisions to the response
plan.
(f) For an MTR facility identified in Sec. 154.1015(c)(2) the COTP
will notify the facility owner or operator in writing that the plan is
approved.
(g) If a COTP determines that a plan does not meet the requirements
of this subpart either upon initial submission or upon 5-year
resubmission, the COTP will return the plan to the facility owner or
operator along with an explanation of the response plan's deficiencies.
The owner or operator must correct any deficiencies in accordance with
Sec. 154.1070 and return the plan to the COTP within the time specified
by the COTP in the letter describing the deficiencies.
(h) The facility owner or operator and the qualified individual and
the alternative qualified individual shall each maintain a copy of the
most current response plan submitted to the COTP. One copy must be
maintained at the facility in a position where the plan is readily
available to persons in charge of conducting transfer operations.
Sec. 154.1065 Plan review and revision procedures.
(a) A facility owner or operator must review his or her response
plan(s) annually. This review shall incorporate any revisions to the
plan, including listings of fish and wildlife and sensitive
environments identified in the ACP in effect 6 months prior to plan
review.
(1) For an MTR facility identified in Sec. 154.1015(c) of this
subpart as a ``significant and substantial harm facility,'' this review
must occur within 1 month of the anniversary date of COTP approval of
the plan. For an MTR facility identified in Sec. 154.1015(b) of this
subpart, as a ``substantial harm facility'' this review must occur
within 1 month of the anniversary date of submission of the plan to the
COTP.
(2) The facility owner or operator shall submit any revision(s) to
the response plan to the COTP and all other holders of the response
plan for information or approval, as appropriate.
(i) Along with the revisions, the facility owner or operator shall
submit a cover letter containing a detailed listing of all revisions to
the response plan.
(ii) If no revisions are required, the facility owner or operator
shall indicate the completion of the annual review on the record of
changes page.
(iii) The COTP will review the revision(s) submitted by the owner
or operator and will give written notice to the owner or operator of
any COTP objection(s) to the proposed revisions within 30 days of the
date the revision(s) were submitted to the COTP. The revisions shall
become effective not later than 30 days from their submission to the
COTP unless the COTP indicates otherwise in writing as provided in this
paragraph. If the COTP indicates that the revision(s) need to be
modified before implementation, the owner or operator will modify the
revision(s) within the time period set by the COTP.
(3) Any required revisions must be entered in the plan and noted on
the record of changes page.
(b) The facility owner or operator shall submit revisions to a
previously submitted or approved plan to the COTP and all other holders
of the response plan for information or approval within 30 days,
whenever there is--
(1) A change in the facility's configuration that significantly
affects the information included in the response plan;
(2) A change in the type of oil (petroleum oil group) handled,
stored, or transported that affects the required response resources;
(3) A change in the name(s) or capabilities of the oil spill
removal organization required by Sec. 154.1045;
(4) A change in the facility's emergency response procedures;
(5) A change in the facility's operating area that includes ports
or geographic area(s) not covered by the previously approved plan. A
facility may not operate in an area not covered in a plan previously
submitted or approved, as appropriate, unless the revised plan is
approved or interim operating approval is received under Sec. 154.1025;
or
(6) Any other changes that significantly affect the implementation
of the plan.
(c) Except as required in paragraph (b) of this section, revisions
to personnel and telephone number lists included in the response plan
do not require COTP approval. The COTP and all other holders of the
response plan shall be advised of these revisions and provided a copy
of the revisions as they occur.
(d) The COTP may require a facility owner or operator to revise a
response plan at any time as a result of a compliance inspection if the
COTP determines that the response plan does not meet the requirements
of this subpart or as a result of inadequacies noted in the response
plan during an actual pollution incident at the facility.
Sec. 154.1070 Deficiencies.
(a) The cognizant COTP will notify the facility owner or operator
in writing of any deficiencies noted during review of a response plan,
drills observed by the Coast Guard, or inspection of equipment or
records maintained in connection with this subpart.
[[Page 7930]]
(b) Deficiencies shall be corrected within the time period
specified in the written notice provided by the COTP. The facility
owner or operator who disagr
FR Doc. 96-4274 Response Plans for Marine Transportation-Related Facilities
ees with a deficiency issued by the COTP
may appeal the deficiency to the cognizant COTP within 7 days or the
time specified by the COTP to correct the deficiency, whichever is
less. This time commences from the date of receipt of the COTP notice.
The owner or operator may request a stay from the COTP decision pending
appeal in accordance with Sec. 154.1075.
(c) If the facility owner or operator fails to correct any
deficiencies or submit a written appeal, the COTP may invoke the
provisions of Sec. 154.1025 prohibiting the facility from storing,
handling, or transporting oil.
Sec. 154.1075 Appeal process.
(a) Any owner or operator of a facility who desires to appeal the
classification that a facility could reasonably be expected to cause
substantial harm or significant and substantial harm to the
environment, shall submit a written request to the cognizant COTP
requesting review and reclassification by the COTP. The facility owner
or operator shall identify those factors to be considered by the COTP.
The factors to be considered by the COTP regarding reclassification of
a facility include, but are not limited to, those listed in
Sec. 154.1016(b). After considering all relevant material presented by
the facility owner or operator and any additional material available to
the COTP, the COTP will notify the facility owner or operator of the
decision on the reclassification of the facility.
(b) Any facility owner or operator directly affected by an initial
determination or action of the COTP may submit a written request to the
cognizant COTP requesting review and reconsideration of the COTP's
decision or action. The facility owner or operator shall identify those
factors to be considered by the COTP in making his or her decision on
reconsideration.
(c) Within 10 days of the COTP's decision under paragraph (b) of
this section, the facility owner or operator may appeal the decision of
the COTP to the District Commander. This appeal shall be made in
writing via the cognizant COTP to the District Commander of the
district in which the office of the COTP is located.
(d) Within 30 days of the District Commander's decision, the
facility owner or operator may formally appeal the decision of the
District Commander. This appeal shall be submitted in writing to
Commandant (G-MEP) via the District Commander.
(e) When considering an appeal, the COTP, District Commander, or
Commandant may stay the effect of the decision or action being appealed
pending the determination of the appeal.
3. Subpart G is revised to read as follows:
Subpart G--Additional Response Plan Requirements for a Trans Alaska
Pipeline Authorization Act (TAPAA) Facility Operating in Prince William
Sound, Alaska
Sec. 154.1110 Purpose and applicability.
154.1115 Definitions.
154.1120 Operating restrictions and interim operating authorization.
154.1125 Additional response plan requirements.
154.1130 Requirements for prepositioned response equipment.
154.1135 Response plan development and evaluation criteria.
154.1140 TAPAA facility contracting with a vessel.
Subpart G--Additional Response Plan Requirements for a Trans-Alaska
Pipeline Authorization Act (TAPAA) Facility Operating in Prince
William Sound, Alaska
Sec. 154.1110 Purpose and applicability.
(a) This subpart establishes oil spill response planning
requirements for a facility permitted under the Tans-Alaska Pipeline
Authorization Act (TAPAA), in addition to the requirements of subpart F
of this part. The requirements of this subpart are intended for use in
developing response plans and identifying response resources during the
planning process. They are not performance standards.
(b) The information required by this subpart must be included in
the Prince William Sound facility-specific appendix to the facility
response plan required by subpart F of this part.
Sec. 154.1115 Definitions.
In addition to the definitions in this section, the definitions in
Secs. 154.105 and 154.1020 apply to this subpart. As used in this
subpart--
Crude oil means any liquid hydrocarbon mixture occurring naturally
in the earth, whether or not treated to render it suitable for
transportation, and includes crude oil from which certain distillate
fractions may have been removed, and crude oil to which certain
distillate fractions may have been added.
Non-crude oil means any oil other than crude oil.
Prince William Sound means all State and Federal waters within
Prince William Sound, Alaska, including the approach to Hinchinbrook
Entrance out to and encompassing Seal Rocks.
Sec. 154.1120 Operating restrictions and interim operating
authorization.
(a) The owner or operator of a TAPAA facility may not operate in
Prince William Sound, Alaska, unless the requirements of this subpart
as well as Sec. 154.1025 have been met. The owner or operator of a
TAPAA facility shall certify to the COTP that he or she has provided,
through an oil spill removal organization required by Sec. 154.1125,
the necessary response resources to remove, to the maximum extend
practicable, a worst case discharge or a discharge of 200,000 barrels
of oil, whichever is grater, in Prince William Sound.
(b) Coast Guard approval of a TAPAA facility response plan is
effective only so long as the appropriate Regional Citizens Advisory
Council(s) is funded pursuant to the requirements of section 5002(k) of
the Oil Pollution Act of 1990 (Pub. L. 101-380; 104 Stat. 484, 550).
Sec. 154.1125 Additional response plan requirements.
(a) The owner or operator of a TAPAA facility shall include the
following information in the Prince William Sound appendix to the
response plan required by subpart F of this part:
(1) Oil spill removal organization. Identification of an oil spill
removal organization that shall--
(i) Perform response activities;
(ii) Provide oil spill removal and containment training, including
training in the operation of prepositioned equipment for personnel,
including local residents and fishermen, from the following locations
in Prince William Sound:
(A) Valdez;
(B) Tatitlek;
(C) Cordova;
(D) Whittier;
(E) Chenega; and
(F) Fish hatcheries located at Port San Juan, Main Bay, Esther
Island, Cannery Creek, and Solomon Gulch.
(iii) Provide a plan for training, in addition to the personnel
listed in paragraph (a)(1)(ii) of this section, sufficient numbers of
trained personnel to remove, to the maximum extent practicable, a worst
case discharge; and
(iv) Address the responsibilities required in
Sec. 154.1035(b)(3)(iii).
(2) Exercises. Identification of exercise procedures that must--
(i) Provide for two exercises of the oil spill removal organization
each year that test the ability of the prepositioned equipment and
trained personnel required under this subpart to perform effectively;
(ii) Consist of both announced and unannounced drills; and
[[Page 7931]]
(iii) Include design(s) for exercises that test either the entire
appendix or individual components(s).
(3) Testing, inspection, and certification. Identification of a
testing, inspecting, and certification program for the prepositioned
response equipment required in Sec. 154.1130 that must provide for--
(i) Annual testing and equipment inspection in accordance with the
manufacturer's recommended procedures, to include--
(A) Start-up and running under load all electrical motors, pumps,
power packs, air compressors, internal combustion engines, and oil
recovery devices; and
(B) Removal for inspection of no less than one-third of required
boom from storage annually, such that all boom will have been removed
and inspected within a period of 3 years; and
(ii) Records of equipment tests and inspection.
(iii) Use of an independent entity to certify that the equipment is
on-site and in good operating condition and that required tests and
inspection have been preformed. The independent entity must have
appropriate training and expertise to provide this certification.
(4) Prepositioned response equipment. Identification and location
of the prepositioned response equipment required in Sec. 154.1130
including the make, model, and effective daily recovery rate of each
oil recovery resource.
(b) The owner or operator of a TAPAA facility shall submit to the
COTP a schedule for the training and drills required by the geographic-
specific appendix for Prince William Sound for the following calendar
year.
(c) All records required by this section must be available for
inspection by the COTP.
Sec. 154.1130 Requirements for prepositioned response equipment.
The owner or operator of a TAPAA facility shall provide the
following prepositioned response equipment, located within Prince
William Sound, in addition to that required by Secs. 154.1035,
154.1045, or 154.1050:
(a) On-water recovery equipment with a minimum effective daily
recovery rate of 30,000 barrels capable of being a scene within 2 hours
of notification of a discharge.
(b) On-water storage capacity of 100,000 barrels for recovered oily
material capable of being on scene within 2 hours of notification of a
discharge.
(c) On-water recovery equipment with a minimum effective daily
recovery rate of 40,000 barrels capable of being on scene within 18
hours of notification of discharge.
(d) On-water storage capacity of 300,000 barrels for recovered oily
material capable of being on scene within 12 hours of notification of a
discharge.
(e) On-water recovery devices and storage equipment located in
communities at strategic locations.
(f) Equipment as identified below, for the locations identified in
Sec. 154.1125(a)(1)(ii) sufficient for the protection of the
environment in these locations:
(1) Boom appropriate for the specific locations.
(2) Sufficient boats to deploy boom and sorbents.
(3) Sorbent materials.
(4) Personnel protective clothing and equipment.
(5) Survival equipment.
(6) First aid supplies.
(7) Buckets, shovels, and various other tools.
(8) Decontamination equipment.
(9) Shoreline cleanup equipment.
(10) Mooring equipment.
(11) Anchored buoys at appropriate locations to facilitate the
positioning of defensive boom.
(12) Other appropriate removal equipment for the protection of the
environment as identified by the COTP.
Sec. 154.1135 Response plan development and evaluation criteria.
The following response times must be used in determining the on
scene arrival time in Prince William Sound for the response resources
required by Sec. 154.1045:
------------------------------------------------------------------------
Tier 1 Tier 2 tier 3
(hrs.) (hrs.) (hrs.)
------------------------------------------------------------------------
Prince William Sound Area.................... 12 24 36
------------------------------------------------------------------------
Sec. 154.1140 TAPAA facility contracting with a vessel.
The owner or operator of a TAPAA facility may contract with a
vessel owner or operator to meet some of all of the requirements of
subpart G of part 155 of this chapter. The extent to which these
requirements are met by the contractual arrangement will be determined
by the COTP.
4. Subpart H, consisting of Secs. 154.1210 through 154.1228, is
added to read as follows:
Subpart H--Response Plans for Animal Fats and Vegetable Oils Facilities
Sec.
154.1210 Purpose and applicability.
154.1220 Response plan submission requirements.
154.1225 Response plan development and evaluation criteria for
facilities that handle, store, or transport animal fats and
vegetable oils.
154.1228 Methods of ensuring the availability of response resources
by contract or other approved means.
Subpart H--Response Plans for Animal Fats and Vegetable Oils
Facilities
Sec. 154.1210 Purpose and applicability.
This subpart establishes oil spill response planning requirements
for an owner or operator of a facility that handles, stores, or
transports animal fats and vegetable oils. The requirements of this
subpart are intended for use in developing response plans and
identifying response resources during the planning process. They are
not performance standards.
Sec. 154.1220 Response plan submission requirements.
An owner or operator of a facility that handles, stores, or
transports animal fats and vegetable oils shall submit a response plan
in accordance with the requirements of this subpart, and with all
sections of subpart F of this part, except Secs. 154.1045 and 154.1047,
which apply to petroleum oils.
Sec. 154.1225 Response plan development and evaluation criteria for
facilities that handle, store, or transport animal fats and vegetable
oils.
(a) An owner or operator of a facility that handles, stores, or
transports animal fats and vegetable oils must provide information in
his or her plan that identifies--
(1) Procedures and strategies for responding to a worst case
discharge of animal fats and vegetable oils to the maximum extent
practicable; and
(2) Sources of the equipment and supplies necessary to locate,
recover, and mitigate such a discharge.
(b) An owner or operator of a facility that handles, stores, or
transports animal fats and vegetable oils must ensure that any
equipment identified in a response plan is capable of operating in the
conditions expected in the geographic area(s) in which the facility
operates using the criteria in section 2 and Table 1 of appendix C of
this part. When evaluating the operability of equipment, the facility
owner or operator must consider limitations that are identified in the
ACPs for the COTP zone in which the facility is located, including--
(1) Ice conditions;
(2) Debris;
(3) Temperature ranges; and
(4) Weather-related visibility.
[[Page 7932]]
(c) The owner or operator of a facility that handles, stores, or
transports animal fats and vegetable oils must identify the response
resources that are available by contract or other means as described in
Sec. 154.1228(a). The equipment identified in a response plan must
include--
(1) Containment boom, sorbent boom, or other methods for containing
oil floating on the surface or to protect shorelines from impact;
(2) Oil recovery devices appropriate for the type of animal fats or
vegetable oils handled; and
(3) Other appropriate equipment necessary to respond to a discharge
involving the type of oil handled.
(d) Response resources identified in a response plan under
paragraph (c) of this section must be capable of commencing an
effective on-scene response within the times specified in this
paragraph for the applicable operating area:
------------------------------------------------------------------------
Tier 1
(hrs.) Tier 2 Tier 3
------------------------------------------------------------------------
Higher volume port area.................... 6 N/A N/A
Great Lakes................................ 12 N/A N/A
All other river and canal, inland,
nearshore, and offshore areas............. 12 N/A N/A
------------------------------------------------------------------------
(e) A response plan for a facility that handles, stores, or
transports animal fats and vegetable oils must identify response
resources with firefighting capability. The owner or operator of a
facility that does not have adequate firefighting resources located at
the facility or that can not rely on sufficient local firefighting
resources must identify and ensure, by contract or other approved means
as described in Sec. 154.1228(a), the availability of adequate
firefighting resources. The response plan must also identify an
individual located at the facility to work with the fire department on
animal fats and vegetable oil fires. This individual shall also verify
that sufficient well-trained firefighting resources are available
within a reasonable response time to a worst case scenario. The
individual may be the qualified individual as defined in Sec. 154.1020
and identified in the response plan or another appropriate individual
located at the facility.
(f) The response plan for a facility that is located in any
environment with year-round preapproval for use of dispersants and that
handles, stores, or transports animal fats and vegetable oils may
request a credit for up to 25 percent of the worst case planning volume
set forth by subpart F of this part. To receive this credit, the
facility owner or operator must identify in the plan and ensure, by
contract or other approved means as described in Sec. 154.1228(a), the
availability of specified resources to apply the dispersants and to
monitor their effectiveness. The extent of the credit for dispersants
will be based on the volumes of the dispersant available to sustain
operations at the manufacturers' recommended dosage rates. Other spill
mitigation techniques, including mechanical dispersal, may be
identified in the response plan provided they are in accordance with
the NCP and the applicable ACP. Resources identified for plan credit
should be capable of being on scene within 12 hours of a discovery of a
discharge. Identification of these resources does not imply that they
will be authorized for use. Actual authorization for use during a spill
response will be governed by the provisions of the NCP and the
applicable ACP.
Sec. 154.1228 Methods of ensuring the availability of response
resources by contract or other approved means.
(a) When required in this subpart, the availability of response
resources must be ensured by the following methods:
(1) The identification of an oil spill removal organization with
specified equipment and personnel available within stipulated response
times in specified geographic areas. The organization must provide
written consent to being identified in the plan;
(2) A document which----
(i) Identifies the personnel, equipment, and services capable of
being provided by the oil spill removal organization within stipulated
response times in the specified geographic areas;
(ii) Sets out the parties' acknowledgment that the oil spill
removal organization intends to commit the resources in the event of a
response;
(iii) Permits the Coast Guard to verify the availability of the
identified response resources through tests, inspections, and drills;
(iv) Is referenced in the response plan;
(3) Active membership in a local or regional oil spill removal
organization that has identified specified personnel and equipment
required under this subpart that are available to response to a
discharge within stipulated response times in the specified geographic
areas;
(4) Certification by the facility owner or operator that specified
personnel and equipment required under this subpart are owned,
operated, or under the direct control of the facility owner or
operator, and are available within stipulated response times in the
specified geographic areas; or
(5) A written contractual agreement with an oil spill removal
organization. The agreement must identify and ensure the availability
of specified personnel and equipment required under this subpart within
stipulated response times in the specified geographic areas.
(b) The contracts and documents required in paragraph (a) of this
section must be retained at the facility and must be produced for
review upon request by the COTP.
5. Subpart I, consisting of Secs. 154.1310 through 154.1325, is
added to read as follows:
Subpart I--Response Plans for Other Non-Petroleum Oil Facilities
Sec.
154.1310 Purpose and applicability.
154.1320 Response plan submission requirements.
154.1325 Response plan development and evaluation criteria for
facilities that handle, store, or transport other non-petroleum
oils.
Subpart I--Response Plans for Other Non-Petroleum Oil Facilities
Sec. 154.1310 Purpose and applicability.
This subpart establishes oil spill response planning requirements
for an owner or operator of a facility that handles, stores, or
transports other non-petroleum oils. The requirements of this subpart
are intended for use in developing response plans and identifying
response resources during the planning process. They are not
performance standards.
Sec. 154.1320 Response plan submission requirements.
An owner or operator of a facility that handles, stores, or
transports other non-petroleum oils shall submit a response plan in
accordance with the requirements of this subpart, and with all sections
of subpart F of this part, except Secs. 154.1045 and 154.1047, which
apply to petroleum oils.
Sec. 154.1325 Response plan development and evaluation criteria for
facilities that handle, store, or transport other non-petroleum oils.
(a) An owner or operator of a facility that handles, stores, or
transports other non-petroleum oils must provide information in his or
her plan that identifies--
(1) Procedures and strategies for responding to a worst case
discharge of other non-petroleum oils to the maximum extent
practicable; and
(2) Sources of the equipment and supplies necessary to locate,
recover, and mitigate such a discharge.
[[Page 7933]]
(b) An owner or operator of a facility that handles, stores, or
transports other non-petroleum oils must ensure that any equipment
identified in a response plan is capable of operating in the conditions
expected in the geographic area(s) in which the facility operates using
the criteria in Table 1 of appendix C of this part. When evaluating the
operability of equipment, the facility owner or operator must consider
limitations that are identified in the ACPs for the COTP zone in which
the facility is located, including--
(1) Ice conditions;
(2) Debris;
(3) Temperature ranges; and
(4) Weather-related visibility.
(c) The owner or operator of a facility that handles, stores, or
transports other non-petroleum oils must identify the response
resources that are available by contract or other approved means as
described in Sec. 154.1028(a). The equipment identified in a response
plan must include--
(1) Containment boom, sorbent boom, or other methods for containing
oil floating on the surface or to protect shorelines from impact;
(2) Oil recovery devices appropriate for the type of other non-
petroleum oils handled; and
(3) Other appropriate equipment necessary to respond to a discharge
involving the type of oil handled.
(d) Response resources identified in a response plan under
paragraph (c) of this section must be capable of commencing an
effective on-scene response within the times specified in this
paragraph for the applicable operating area:
------------------------------------------------------------------------
Tier 1 Tier Tier
(hrs.) 2 3
------------------------------------------------------------------------
Higher volume port area........................... 6 N/A N/A
Great Lakes....................................... 12 N/A N/A
All other river and canal, inland, nearshore, and
offshore areas................................... 12 N/A N/A
------------------------------------------------------------------------
(e) A response plan for a facility that handles, stores, or
transports other non-petroleum oils must identify response resources
with firefighting capability. The owner or operator of a facility that
does not have adequate firefighting resources located at the facility
or that cannot rely on sufficient local firefighting resources must
identify and ensure, by contract or other approved means as described
in Sec. 154.1028(a), the availability of adequate firefighting
resources. The response plan must also identify an individual located
at the facility to work with the fire department on other non-petroleum
oil fires. This individual shall also verify that sufficient well-
trained firefighting resources are available within a reasonable
response time to a worst case scenario. The individual may be the
qualified individual as defined in Sec. 154.1020 and identified in the
response plan or another appropriate individual located at the
facility.
(f) The response plan for a facility that is located in any
environment with year-round preapproval for use of dispersants and that
handles, stores, or transports other non-petroleum oils may request a
credit for up to 25 percent of the worst case planning volume set forth
by subpart F of this part. To receive this credit, the facility owner
or operator must identify in the plan and ensure, by contract or other
approved means as described in Sec. 154.1028(a), the availability of
specified resources to apply the dispersants and to monitor their
effectiveness. The extent of the credit will be based on the volumes of
the dispersant available to sustain operations at the manufacturers'
recommended dosage rates. Identification of these resources does not
imply that they will be authorized for use. Actual authorization for
use during a spill response will be governed by the provisions of the
NCP and the applicable ACP.
6. Appendix C is revised to read as follows:
Appendix C--Guidelines for Determining and Evaluating Required Response
Resources for Facility Response Plans
1. Purpose
1.1 The purpose of this appendix is to describe the procedures
for identifying response resources to meet the requirements of
subpart F of this part. These guidelines will be used by the
facility owner or operator in preparing the response plan and by the
Captain of the Port (COTP) when reviewing them. Response resources
identified in subparts H and I of this part should be selected using
the guidelines in section 2 and Table 1 of this appendix.
2. Equipment Operability and Readiness
2.1 All equipment identified in a response plan must be
designed to operate in the conditions expected in the facility's
geographic area. These conditions vary widely based on location and
season. Therefore, it is difficult to identify a single stockpile of
response equipment that will function effectively in each geographic
location.
2.2 Facilities handling, storing, or transporting oil in more
than one operating environment as indicated in Table 1 of this
appendix must identify equipment capable of successfully functioning
in each operating environment.
2.3 When identifying equipment for response plan credit, a
facility owner or operator must consider the inherent limitations in
the operability of equipment components and response systems. The
criteria in Table 1 of this appendix should be used for evaluating
the operability in a given environment. These criteria reflect the
general conditions in certain operating areas.
2.3.1 The Coast Guard may require documentation that the boom
identified in a response plan meets the criteria in Table 1. Absent
acceptable documentation, the Coast Guard may require that the boom
be tested to demonstrate that it meets the criteria in Table 1.
Testing must be in accordance with ASTM F 715, ASTM F 989, or other
tests approved by the Coast Guard.
2.4 Table 1 of this appendix lists criteria for oil recovery
devices and boom. All other equipment necessary to sustain or
support response operations in the specified operating environment
must be designed to function in the same conditions. For example,
boats which deploy or support skimmers or boom must be capable of
being safely operated in the significant wave heights listed for the
applicable operating environment.
2.5 A facility owner or operator must refer to the applicable
local contingency plan or ACP, as appropriate, to determine if ice,
debris, and weather-related visibility are significant factors in
evaluating the operability of equipment. The local contingency plan
or ACP will also identify the average temperature ranges expected in
the facility's operating area. All equipment identified in a
response plan must be designed to operate within those conditions or
ranges.
2.6 The requirements of subparts F, G, H and I of this part
establish response resource mobilization and response times. The
distance of the facility from the storage location of the response
resources must be used to determine whether the resources can arrive
on scene within the stated time. A facility owner or operator shall
include the time for notification, mobilization, and travel time of
response resources identified to meet the maximum most probable
discharge and Tier 1 worst case discharge response time
requirements. For subparts F and G, tier 2 and 3 response resources
must be notified and mobilized as necessary to meet the requirements
for arrival on scene in accordance with Secs. 154.1045 or 154.1047
of subpart F, or Sec. 154.1135 of subpart G, as appropriate. An on
water speed of 5 knots and a land speed of 35 miles per hour is
assumed unless the facility owner or operator can demonstrate
otherwise.
2.7 For subparts F and G, in identifying equipment, the
facility owner or operator shall list the storage location,
quantity, and manufacturer's make and model. For oil recovery
devices, the effective daily recovery capacity, as determined using
section 6 of this appendix must be included. For boom, the overall
boom height (draft plus freeboard) should be included. A facility
owner or operator is responsible for ensuring that identified boom
has compatible connectors.
2.8 For subparts H and I, in identifying equipment, the
facility owner or operator shall list the storage location,
quantity, and manufacturer's make and model. For boom,
[[Page 7934]]
the overall boom height (draft plus freeboard) should be included. A
facility owner or operator is responsible for ensuring that
identified boom has compatible connectors.
3. Determining Response Resources Required for the Average Most
Probable Discharge
3.1 A facility owner or operator shall identify sufficient
response resources available, through contract or other approved
means as described in Sec. 154.1028(a), to respond to the average
most probable discharge. The equipment must be designed to function
in the operating environment at the point of expected use.
3.2 The response resources must include:
3.2.1 1,000 feet of containment boom or two times the length of
the largest vessel that regularly conducts oil transfers to or from
the facility, whichever is greater, and a means deploying it
available at the spill site within 1 hour of the discovery of a
spill.
3.2.2 Oil recovery devices with an effective daily recovery
capacity equal to the amount of oil discharged in an average most
probable discharge or greater available at the facility within 2
hours of the detection of an oil discharge.
3.2.3 Oil storage capacity for recovered oily material
indicated in section 9.2 of this appendix.
4. Determining Response Resources Required for the Maximum Most
Probable Discharge
4.1 A facility owner or operator shall identify sufficient
response resources available, by contract or other approved means as
described in Sec. 154.1028(a), to respond to discharges up to the
maximum most probable discharge volume for that facility. This will
require response resources capable of containing and collecting up
to 1,200 barrels of oil or 10 percent of the worst case discharge,
whichever is less. All equipment identified must be designed to
operate in the applicable operating environment specified in Table 1
of this appendix.
4.2 Oil recovery devices identified to meet the applicable
maximum most probable discharge volume planning criteria must be
located such that they arrive on scene within 6 hours in higher
volume port areas (as defined in 154.1020) and the Great Lakes and
within 12 hours in all other areas.
4.3 Because rapid control, containment, and removal of oil is
critical to reduce spill impact, the effective daily recovery
capacity for oil recovery devices must equal 50 percent of the
planning volume applicable for the facility as determined in section
4.1 of this appendix. The effective daily recovery capacity for oil
recovery devices identified in the plan must be determined using the
criteria in section 6 of this appendix.
4.4 In addition to oil recovery capacity, the plan must
identify sufficient quantities of containment boom available, by
contract or other approved means as described in Sec. 154.1028(a),
to arrive within the required response times for oil collection and
containment and for protection of fish and wildlife and sensitive
environments. While the regulation does not set required quantities
of boom for oil collection and containment, the response plan must
identify and ensure, by contract or other approved means as
described in Sec. 154.1028(a), the availability of the boom
identified in the plan for this purpose.
4.5 The plan must indicate the availability of temporary
storage capacity to meet the guidelines of section 9.2 of this
appendix. If available storage capacity is insufficient to meet this
level, then the effective daily recovery capacity must be derated to
the limits of the available storage capacity.
4.6 The following is an example of a maximum most probable
discharge volume planning calculation for equipment identification
in a higher volume port area: The facility's worst case discharge
volume is 20,000 barrels. Ten percent of this is 2,000 barrels.
Since this is greater than 1,200 barrels, 1,200 barrels is used as
the planning volume. The effective daily recovery capacity must be
50 percent of this, or 600 barrels per day. The ability of oil
recovery devices to meet this capacity will be calculated using the
procedures in section 6 of this appendix. Temporary storage capacity
available on scene must equal twice the daily recovery rate as
indicated in section 9 of this appendix, or 1,200 barrels per day.
This is the information the facility owner or operator will use to
identify and ensure the availability of, through contract or other
approved means as described in Sec. 154.1028(a), the required
response resources. The facility owner will also need to identify
how much boom is available for use.
5. Determining Response Resources Required for the Worst Case
Discharge to the Maximum Extent Practicable
5.1 A facility owner or operator shall identify and ensure
availability of, by contract or other approved means, as described
in Sec. 154.1028(a), sufficient response resources to respond to the
worst case discharge of oil to the maximum extent practicable.
Section 7 of this appendix describes the method to determine the
required response resources.
5.2 Oil spill response resources identified in the response
plan and available through contract or other approved means, as
described in Sec. 154.1028(a), to meet the applicable worst case
discharge planning volume must be located such that they can arrive
at the scene of a discharge within the times specified for the
applicable response tiers listed in Sec. 154.1045.
5.3 The effective daily recovery capacity for oil recovery
devices identified in a response plan must be determined using the
criteria in section 6 of this appendix. A facility owner or operator
shall identify the storage locations of all response resources that
must be used to fulfill the requirements for each tier. The owner or
operator of a facility whose required daily recovery capacity
exceeds the applicable response capability caps in Table 5 of this
appendix shall identify sources of additional equipment, their
locations, and the arrangements made to obtain this equipment during
a response. The owner or operator of a facility whose calculated
planning volume exceeds the applicable contracting caps in Table 5
shall identify sources of additional equipment equal to twice the
cap listed in Tiers 1, 2, and 3 or the amount necessary to reach the
calculated planning volume, whichever is lower. The resources
identified above the cap must be capable of arriving on scene not
later than the Tiers 1, 2, and 3 response times in Sec. 154.1045. No
contract is required. While general listings of available response
equipment may be used to identify additional sources, a response
plan must identify the specific sources, locations, and quantities
of equipment that a facility owner or operator has considered in his
or her planning. When listing Coast Guard classified oil spill
removal organization(s) which have sufficient removal capacity to
recover the volume above the response capability cap for the
specific facility, as specified in Table 5 of this appendix, it is
not necessary to list specific quantities of equipment.
5.4 A facility owner or operator shall identify the
availability of temporary storage capacity to meet the requirements
of section 9.2 of this appendix. If available storage capacity is
insufficient to meet this requirement, then the effective daily
recovery capacity must be derated to the limits of the availabile
storage capacity.
5.5 When selecting response resources necessary to meet the
response plan requirements, the facility owner or operator must
ensure that a portion of those resources are capable of being used
in close-to-shore response activities in shallow water. The
following percentages of the on-water response equipment identified
for the applicable geographic area must be capable of operating in
waters of 6 feet or less depth:
(i) Offshore--10 percent
(ii) Nearshore/inland/Great Lakes/rivers and canals--20 percent.
5.6 In addition to oil spill recovery devices, a facility owner
or operator shall identify sufficient quantities of boom that are
available, by contract or other approved means as described in
Sec. 154.1028(a), to arrive on scene within the required response
times for oil containment and collection. The specific quantity of
boom required for collection and containment will depend on the
specific recovery equipment and strategies employed. A facility
owner or operator shall also identify sufficient quantities of oil
containment boom to protect fish and wildlife and sensitive
environments for the number of days and geographic areas specified
in Table 2. Sections 154.1035(b)(4)(iii) and 154.1040(a), as
appropriate, shall be used to determine the amount of containment
boom required, through contract or other approved means as described
in Sec. 154.1028(a), to protect fish and wildlife and sensitive
environments.
5.7 A facility owner or operator must also identify, through
contract or other approved means as described in Sec. 154.1028(a),
the availability of an oil spill removal organization capable of
responding to a shoreline cleanup operation involving the calculated
volume of oil and emulsified oil that might impact the affected
shoreline. The volume of oil that must be planned for is calculated
through the application of factors contained in Tables 2 and 3. The
volume
[[Page 7935]]
calculated from these tables is intended to assist the facility owner
or operator in identifying a contractor with sufficient resources
and expertise. This planning volume is not used explicitly to
determine a required amount of equipment and personnel.
6. Determining Effective Daily Recovery Capacity for Oil Recovery
Devices
6.1 Oil recovery devices identified by a facility owner or
operator must be identified by manufacturer, model, and effective
daily recovery capacity. These rates must be used to determine
whether there is sufficient capacity to meet the applicable planning
critieria for the average most probable discharge, maximum most
probable discharge, and worst case discharge to the maximum extent
practicable.
6.2 For the purpose of determining the effective daily recovery
capacity of oil recovery devices, the formula listed in section
6.2.1 of this appendix will be used. This method considers potential
limitations due to available daylight, weather, sea state, and
percentage of emulsified oil in the recovered material. The Coast
Guard may assign a lower efficiency factor to equipment listed in a
response plan if it determines that such a reduction is warranted.
6.2.1 The following formula must be used to calculate the
effective daily recovery capacity:
R=T x 24 hours x E
R=Effective daily recovery capacity
T=Throughout rate in barrels per hour (nameplate capacity)
E=20 percent Efficiency factor (or lower factor as determined by
Coast Guard)
6.2.2 For those devices in which the pump limits the throughput
of liquid, throughput rate will be calculated using the pump
capacity.
6.2.3 For belt or mop type devices, the throughput rate will be
calculated using the speed of the belt or mop through the device,
assumed thickness of oil adhering to or collected by the device, and
surface area of the belt or mop. For purposes of this calculation,
the assumed thickness of oil will be 1/4 inch.
6.2.4 Facility owners or operators including oil recovery
devices whose throughput is not measurable using a pump capacity or
belt/mop speed may provide information to support an alternative
method of calculation. This information must be submitted following
the procedures in paragraph 6.3.2 of this appendix.
6.3 As an alternative to 6.2, a facility owner or operator may
submit adequate evidence that a different effective daily recovery
capacity should be applied for a specific oil recovery device.
Adequate evidence is actual verified performance data in spill
conditions or tests using ASTM F 631, ASTM F 808, or an equivalent
test approved by the Coast Guard.
6.3.1 The following formula must be used to calculate the
effective daily recovery capacity under this alternative:
R=D x U
R=Effective daily recovery capacity
D=Average Oil Recovery Rate in barrels per hour (Item 26 in ASTM F
808; Item 13.1.15 in ASTM F 631; or actual performance data)
U=Hours per day that a facility owner or operator can document
capability to operate equipment under spill conditions. Ten hours
per day must be used unless a facility owner or operator can
demonstrate that the recovery operation can be sustained for longer
periods.
6.3.2 A facility owner or operator proposing a different
effective daily recovery rate for use in a response plan shall
provide data for the oil recovery devices listed. The following is
an example of these calculations:
A weir skimmer identified in a response plan has a
manufacturer's rated throughput at the pump of 267 gallons per
minute (gpm).
267 gpm=381 barrels per hour
R=381 x 24 x .2=1829 barrels per day
After testing using ASTM procedures, the skimmer's oil recovery
rate is determined to be 220 gpm. The facility owner of operator
identifies sufficient response resources available to support
operations 12 hours per day.
220 gpm=314 barrels per hour
R=314 x 12=3768 barrels per day
The facility owner or operator will be able to use the higher
rate if sufficient temporary oil storage capacity is available.
Determinations of alternative efficiency factors under paragraph 6.2
or alternative effective daily recovery capacities under paragraph
6.3 of this appendix will be made by Commandant, (G-MEP-6), Coast
Guard Headquarters, 2100 Second Street SW., Washington, DC 20593.
Response contractors or equipment manufacturers may submit required
information on behalf of multiple facility owners or operators
directly in lieu of including the request with the response plan
submission.
7. Calculating the Worst Case Discharge Planning Volumes
7.1 The facility owner or operator shall plan for a response to
a facility's worst case discharge. The planning for on-water
recovery must take into account a loss of some oil to the
environment due to evaporative and natural dissipation, potential
increases in volume due to emulsification, and the potential for
deposit of some oil on the shoreline.
7.2 The following procedures must be used to calculate the
planning volume used by a facility owner or operator for determining
required on water recovery capacity:
7.2.1 The following must be determined: The worst case
discharge volume of oil in the facility; the appropriate group(s)
for the type of oil handled, stored, or transported at the facility
(non-persistent (Group I) or persistent (Groups II, III, or IV));
and the facility's specific operating area. Facilities which handle,
store, or transport oil from different petroleum oil groups must
calculate each group separately. This information is to be used with
Table 2 of this appendix to determine the percentages of the total
volume to be used for removal capacity planning. This table divides
the volume into three categories: Oil lost to the environment; oil
deposited on the shoreline; and oil available for on-water recovery.
7.2.2 The on-water oil recovery volume must be adjusted using
the appropriate emulsification factor found in Table 3 of this
appendix. Facilities which handle, store, or transport oil from
different petroleum groups must assume that the oil group resulting
in the largest on-water recovery volume will be stored in the tank
or tanks identified as constituting the worst case discharge.
7.2.3 The adjusted volume is multiplied by the on-water oil
recovery resource mobilization favor found in Table 4 of this
appendix from the appropriate operating area and response tier to
determine the total on-water oil recovery capacity in barrels per
day that must be identified or contracted for to arrive on-scene
with the applicable time for each response tier. Three tiers are
specified. For higher volume port areas, the contracted tiers of
resources must be located such that they can arrive on scene within
6, 30, and 54 hours of the discovery of an oil discharge. For all
other river, inland, nearshore, offshore areas, and the Great Lakes,
these tiers are 12, 36, and 60 hours.
7.2.4 The resulting on-water recovery capacity in barrels per
day for each tier must be used to identify response resources
necessary to sustain operations in the applicable operating area.
The equipment must be capable of sustaining operations for the time
period specified in Table 2 of this appendix. The facility owner or
operator must identify and ensure the availability, through contract
or other approved means as described in Sec. 154.1028(a), of
sufficient oil spill recovery devices to provide the effective daily
recovery oil recovery capacity required. If the required capacity
exceeds the applicable cap specified in Table 5 of this appendix,
then a facility owner or operator shall ensure, by contract or other
approved means as described in Sec. 154.1028(a), only for the
quantity of resources required to meet the cap, but shall identify
sources of additional resources as indicated in Sec. 154.1045(m).
The owner or operator of a facility whose planning volume exceeds
the cap for 1993 must make arrangements to identify and ensure the
availability, through contract or other approved means as described
in Sec. 154.1028(a), of the additional capacity in 1998 or 2003, as
appropriate. For a facility that handles, stores, or transports
multiple groups of oil, the required effective daily recovery
capacity for each group is calculated before applying the cap.
7.3 The following procedures must be used to calculate the
planning volume for identifying shoreline cleanup capacity:
7.3.1 The following must be determined: The worst case
discharge volume of oil for the facility; the appropriate group(s)
for the type of oil handled, stored, or transported at the facility
(non-persistent (Group I) or persistent (Groups II, III, or IV));
and the operating area(s) in which the facility operates. For a
facility storing oil from different groups, each group must be
calculated separately. Using this information, Table 2 of this
appendix must be used to determine the percentages of the total
[[Page 7936]]
planning volume to be used for shoreline cleanup resource planning.
7.3.2 The shoreline cleanup planning volume must be adjusted to
reflect an emulsification factor using the same procedure as
described in section 7.2.2.
7.3.3 The resulting volume will be used to identify an oil
spill removal organization with the appropriate shoreline cleanup
capability.
7.3.4 The following is an example of the procedure described
above: A facility receives oil from barges via a dock located on a bay
and transported by piping to storage tanks. The facility handles Number
6 oil (specific gravity .96) and stores the oil in tanks where it is
held prior to being burned in an electric generating plant. The MTR
segment of the facility has six 18-inch diameter pipelines running one
mile from the dock-side manifold to several storage tanks which are
located in the non-transportation-related portion of the facility.
Although the facility piping has a normal working pressure of 100
pounds per square inch, the piping has a maximum allowable working
pressure (MAWP) of 150 pounds per square inch. At MAWP, the pumping
system can move 10,000 barrels (bbls) of Number 6 oil every hour
through each pipeline. The facility has a roving watchman who is
required to drive the length of the piping every 2 hours when the
facility is receiving oil from a barge. The facility operator estimates
that it will take approximately 10 minutes to secure pumping operations
when a discharge is discovered. Using the definition of worst case
discharge provided in Sec. 154.1029(b)(ii), the following calculation
is provided:
bbls.
2 hrs + 0.17 hour x 10,000 bbls per hour.................... 21,700
Piping volume = 37,322 ft \3\ 5.6 ft \3\/bbl......... +6,664
---------
Discharge volume per pipe..................................... 28,364
Number of pipelines........................................... x 6
---------
Worst case discharge from MTR facility........................ 170,184
To calculate the planning volumes for onshore recovery:
Worst case discharge: 170,184 bbls. Group IV oil
Emulsification factor (from Table 3): 1.4
Operating Area impacted: Inland
Planned percent oil onshore recovery (from Table 2): Inland 70%
Planning volumes for onshore recovery: Inland 170,184 x .7 x 1.4
= 166,780 bbls.
Conclusion: The facility owner or operator must contract with a
response resource capable of managing a 166,780 barrel shoreline
cleanup.
To calculate the planning volumes for on-water recovery:
Worst case discharge: 170,184 bbls. Group IV oil
Emulsification factor (from Table 3): 1.4
Operating Area impacted: Inland
Planned percent oil on-water recovery (from Table 2): Inland 50%
Planning volumes for on-water recovery: Inland 170,184 x .5 x
1.4 = 119,128 bbls.
To determine the required resources for on-water recovery for
each tier, use the mobilization factors from Table 4:
------------------------------------------------------------------------
Tier 1 Tier 2 Tier 3
------------------------------------------------------------------------
Inland = 119,128 bbls........................ x .1
5 x .2
5 x .4
0
--------------------------
Barrels per day (pbd)........................ 17,869 29,782 47,652
------------------------------------------------------------------------
Conclusion: Since the requirements for all tiers for inland
exceed the caps, the facility owner will only need to contract for
10,000 bpd for Tier 1, 20,000 bpd for Tier 2, and 40,000 bpd for
Tier 3. Sources for the bpd on-water recovery resources above the
caps for all three Tiers need only be identified in the response
plan.
Twenty percent of the capability for Inland, for all tiers, must
be capable of operating in water with a depth of 6 feet or less.
The facility owner or operator will also be required to identify
or ensure, by contract or other approved means as described in
Sec. 154.1028(a), sufficient response resources required under
Secs. 154.1035(b)(4) and 154.1045(k) to protect fish and wildlife
and sensitive environments identified in the response plan for the
worst case discharge from the facility.
The COTP has the discretion to accept that a facility can
operate only a limited number of the total pipelines at a dock at a
time. In those circumstances, the worst case discharge must include
the drainage volume from the piping normally not in use in addition
to the drainage volume and volume of oil discharged during discovery
and shut down of the oil discharge from the operating piping.
8. Determining the Availability of Alternative Response Methods
8.1 Response plans for facilities that handle, store, or
transport Groups II or III persistent oils that operate in an area
with year-round preapproval for dispersant use may receive credit
for up to 25 percent of their required on-water recovery capacity
for 1993 if the availability of these resources is ensured by
contract or other approved means as described in Sec. 154.1028(a).
For response plan credit, these resources must be capable of being
on-scene within 12 hours of a discharge.
8.2 To receive credit against any required on-water recover
capacity a response plan must identify the locations of dispersant
stockpiles, methods of shipping to a staging area, and appropriate
aircraft, vessels, or facilities to apply the dispersant and monitor
its effectiveness at the scene of an oil discharge.
8.2.1 Sufficient volumes of dispersants must be available to
treat the oil at the dosage rate recommended by the dispersant
manufacturer. Dispersants identified in a response plan must be on
the NCP Product Schedule that is maintained by the Environmental
Protection Agency. (Some states have a list of approved dispersants
and within state waters only they can be used.)
8.2.2 Dispersant application equipment identified in a response
plan for credit must be located where it can be mobilized to
shoreside staging areas to meet the time requirements in section 8.1
of this appendix. Sufficient equipment capacity and sources of
appropriate dispersants should be identified to sustain dispersant
application operations for at least 3 days.
8.2.3 Credit against on-water recovery capacity in preapproved
areas will be based on the ability to treat oil at a rate equivalent
to this credit. For example, a 2,500 barrel credit against the Tier
1 10,000 barrel on-water cap would require the facility owner or
operator to demonstrate the ability to treat 2,500 barrel/day of oil
at the manufacturers recommended dosage rate. Assuming a dosage rate
of 10:1, the plan would need to show stockpiles and sources of 250
barrels of dispersants at a rate of 250 barrels per day and the
ability to apply the dispersant at that daily rate for 3 days in the
geographic area in which the facility is located. Similar data would
need to be provided for any additional credit against Tier 2 and 3
resources.
8.3 In addition to the equipment and supplies required, a
facility owner or operator shall identify a source of support to
conduct the monitoring and post-use effectiveness evaluation
required by applicable regional plans and ACPs.
8.4 Identification of the response resources for dispersant
application does not imply that the use of this technique will be
authorized. Actual authorization for use during a spill response
will be governed by the provisions of the NCP and the applicable
regional plan or ACP. A facility owner or operator who operates a
facility in areas with year-round preapproval of dispersant can
reduce the required on-water recovery capacity for 1993 up to 25
percent. A facility owner or operator may reduce the required on
water recovery cap increase for 1998 and 2003 up to 50 percent by
identifying pre-approved alternative response methods.
8.5 In addition to the credit identified above, a facility
owner or operator that operates in a year-round area pre-approved
for dispersant use may reduce their required on water recovery cap
increase for 1998 and 2003 by up to 50 percent by identifying non-
mechanical methods.
8.6 The use of in-situ burning as a non-mechanical response
method is still being studied. Because limitations and uncertainties
remain for the use of this method, it may not be used to reduce
required oil recovery capacity in 1993.
9. Additional Equipment Necessary to Sustain Response Operations
9.1 A facility owner or operator is responsible for ensuring
that sufficient numbers of trained personnel and boats, aerial
spotting aircraft, containment boom, sorbent materials, boom
anchoring materials, and other supplies are available to sustain
[[Page 7937]]
response operations to completion. All such equipment must be suitable
for use with the primary equipment identified in the response plan.
A facility owner or operator is not required to list these response
resources, but shall certify their availability.
9.2 A facility owner or operator shall evaluate the
availability of adequate temporary storage capacity to sustain the
effective daily recovery capacities from equipment identified in the
plan. Because of the inefficiencies of oil spill recovery devices,
response plans must identify daily storage capacity equivalent to
twice the effective daily recovery rate required on scene. This
temporary storage capacity may be reduced if a facility owner or
operator can demonstrate by waste stream analysis that the
efficiencies of the oil recovery devices, ability to decant waste,
or the availability of alternative temporary storage or disposal
locations will reduce the overall volume of oily material storage
requirement.
9.3 A facility owner or operator shall ensure that his or her
planning includes the capability to arrange for disposal of
recovered oil products. Specific disposal procedures will be
addressed in the applicable ACP.
Table 1.--Response Resource Operating Criteria Oil Recovery Devices
Operating environment Significant wave height \1\ Sea State
Rivers and Canals............................ 1 Foot................................... 1
Inland....................................... 3 feet................................... 2
Great Lakes.................................. 4 feet................................... 2-3
Ocean........................................ 6 feet................................... 3-4
BOOM
----------------------------------------------------------------------------------------------------------------
Use
-------------------------------------------------------
Boom property Rivers and
canals Inland Great Lakes Ocean
----------------------------------------------------------------------------------------------------------------
Significant Wave Height \1\............................. 1 3 4 6
Sea State............................................... 1 2 2-3 3-4
Boom height--in. (draft plus freeboard)................. 6-18 18-42 18-42 4
2
Reserve Buoyancy to Weight Ratio........................ 2:1 2:1 2:1 3:1 to 4:1
Total Tensile Strength--lbs............................. 4,500 15-20,000 15-20,000 2
0,000
Skirt Fabric Tensile Strength--lbs...................... 200 300 300 500
Skirt Fabric Tear Strength--lbs......................... 100 100 100 125
----------------------------------------------------------------------------------------------------------------
\1\ Oil recovery devices and boom must be at least capable of operating in wave heights up to and including the
values listed in Table 1 for each operating environment.
Table 2.--Removal Capacity Planning Table
--------------------------------------------------------------------------------------------------------------------------------------------------------
Spill location Rivers and canals Nearshore/inland Great Lakes Offshore
--------------------------------------------------------------------------------------------------------------------------------------------------------
Sustainability of on-water oil recovery 3 Days 4 Days 6 Days
--------------------------------------------------------------------------------------------------------------------------------------------------------
% % %
% Natural Recovered % Oil on % Natural Recovered % Oil on % Natural Recovered % Oil on
Oil group dissipation floating shore dissipation floating shore dissipation floating shore
oil oil oil
--------------------------------------------------------------------------------------------------------------------------------------------------------
1 Non-persistent oils............................ 80 10 10 80 20 10 95 5 /
2 Light crudes................................... 40 15 45 50 50 30 75 25 5
3 Medium crudes and fuels........................ 20 15 65 30 50 50 60 40 20
4 Heavy crudes and fuels......................... 5 20 75 10 50 70 50 40 30
--------------------------------------------------------------------------------------------------------------------------------------------------------
Table 3.--Emulsification Factors for Petroleum Oil Groups
------------------------------------------------------------------------
------------------------------------------------------------------------
Non-Persistent Oil:
Group I........................................................ 1.0
Persistent Oil:
Group II....................................................... 1.8
Group III...................................................... 2.0
Group IV....................................................... 1.4
------------------------------------------------------------------------
Table 4.--On Water Oil Recovery Resource Mobilization Factors
------------------------------------------------------------------------
Tier Tier Tier
Operating Area 1 2 3
------------------------------------------------------------------------
Rivers & Canals.................................... .30 .40 .60
Inland/Nearshore/Great Lakes....................... .15 .25 .40
Offshore........................................... .10 .165 .21
------------------------------------------------------------------------
Note: These mobilization factors are for total response resources
mobilized, not incremental response resources.
Table 5.--Response Capability Caps by Operating Area
----------------------------------------------------------------------------------------------------------------
Tier 1 Tier 2 Tier 3
----------------------------------------------------------------------------------------------------------------
February 18, 1993:
All except rivers and 10K bbls/day............. 20K bbls/day............. 40K bbls/day/
canals, Great Lakes.
Great Lakes................ 5K bbls/day.............. 10K bbls/day............. 20K bbls/day.
Rivers and canals.......... 1,500 bbls/day........... 3,000 bbls/day........... 6,000 bbls/day.
February 18, 1998:
All except rivers and 12.5K bbls/day........... 25K bbls/day............. 50K bbls/day.
canals, Great Lakes.
[[Page 7938]]
Great Lakes................ 6.35K bbls/day........... 12.3K bbls/day........... 25K bbls/day.
Rivers and canals.......... 1,875 bbls/day........... 3,750 bbls/day........... 7,500 bbls/day.
February 18, 2003:
All except rivers and TBD...................... TBD...................... TBD.
canals, Great Lakes.
Great Lakes................ TBD...................... TBD...................... TBD.
Rivers and canals.......... TBD...................... TBD...................... TBD.
----------------------------------------------------------------------------------------------------------------
Note: The caps show cumulative overall effective daily recovery capacity, not incremental increases.
TBD = To be determined.
7. Appendix D is revised to read as follows:
Appendix D--Training Elements for Oil Spill Response Plans
1. General
1.1 The portion of the plan dealing with training is one of the
key elements of a response plan. This concept is clearly expressed
by the fact that Congress, in writing OPA 90, specifically included
training as one of the sections required in a vessel or facility
response plan. In reviewing submitted response plans, it has been
noted that the plans often do not provide sufficient information in
the training section of the plan for either the user or the reviewer
of the plan. In some cases, plans simply state that the crew and
others will be trained in their duties and responsibilities, with no
other information being provided. In other plans, information is
simply given that required parties will receive the necessary worker
safety training (HAZWOPER).
1.2 The training section of the plan need not be a detailed
course syllabus, but it must contain sufficient information to allow
the user and reviewer (or evaluator) to have an understanding of
those areas that are believed to be critical. Plans should identify
key skill areas and the training that is required to ensure that the
individual identified will be capable of performing the duties
prescribed to them. It should also describe how the training will be
delivered to the various personnel. Further, this section of the
plan must work in harmony with those sections of the plan dealing
with exercises, the spill management team, and the qualified
individual.
1.3 The material in this appendix D is not all-inclusive and is
provided for guidance only.
2. Elements To Be Addressed
2.1 To assist in the preparation of the training section of a
facility response plan, some of the key elements that should be
addressed are indicated in the following sections. Again, while it
is not necessary that the comprehensive training program for the
company be included in the response plan, it is necessary for the
plan to convey the elements that define the program as appropriate.
2.2 An effective spill response training program should
consider and address the following:
2.2.1 Notification requirements and procedures.
2.2.2 Communication system(s) used for the notifications.
2.2.3 Procedures to mitigate or prevent any discharge or a
substantial threat of a discharge of oil resulting from failure of
manifold, mechanical loading arm, or other transfer equipment or
hoses, as appropriate;
2.2.3.1 Tank overfill;
2.2.3.2 Tank rupture;
2.2.3.3 Piping rupture;
2.2.3.4 Piping leak, both under pressure and not under
pressure, if applicable;
2.2.3.5 Explosion or fire;
2.2.3.6 Equipment failure (e.g., pumping system failure, relief
valve failure, or other general equipment relevant to operational
activities associated with internal or external facility transfers).
2.2.4 Procedures for transferring responsibility for direction
of response activities from facility personnel to the spill
management team.
2.2.5 Familiarity with the operational capabilities of the
contracted oil spill removal organizations and the procedures to
notify the activate such organizations.
2.2.6 Familiarity with the contracting and ordering procedures
to acquire oil spill removal organization resources.
2.2.7 Familiarity with the ACP(s).
2.2.8 Familiarity with the organizational structures that will
be used to manage the response actions.
2.2.9 Responsibilities and duties of the spill management team
members in accordance with designated job responsibilities.
2.2.10 Responsibilities and authority of the qualified
individual as described in the facility response plan and company
response organization.
2.2.11 Responsibilities of designated individuals to initiate a
response and supervise response resources.
2.2.12 Actions to take, in accordance with designated job
responsibilities, in the event of a transfer system leak, tank
overflow, or suspected cargo tank or hull leak.
2.2.13 Information on the cargoes handled by the vessel or
facility, including familiarity with--
2.2.13.1 Cargo material safety data sheets;
2.2.13.2 Chemical characteristic of the cargo;
2.2.13.3 Special handling procedures for the cargo;
2.2.13.4 Health and safety hazards associated with the cargo;
and
2.2.13.5 Spill and firefighting procedures for cargo.
2.2.14 Occupational Safety and Health Administration
requirements for worker health and safety (29 CFR 1910.120).
3. Further Considerations
In drafting the training section of the facility response plan,
some further considerations are noted below (these points are raised
simply as a reminder):
3.1 The training program should focus on training provided to
facility personnel.
3.2 An organization is comprised of individuals, and a training
program should be structured to recognize this fact by ensuring that
training is tailored to the needs of the individuals involved in the
program.
3.3 An owner or operator may identify equivalent work
experience which fulfills specific training requirements.
3.4 The training program should include participation in
periodic announced and unannounced exercises. This participation
should approximate the actual roles and responsibilities of
individual specified in the plan.
3.5 Training should be conducted periodically to reinforce the
required knowledge and to ensure an adequate degree of preparedness
by individuals with responsibilities under the facility response
plan.
3.6 Training may be delivered via a number of different means;
including classroom sessions, group discussions, video tapes, self-
study workbooks, resident training courses, on-the-job training, or
other means as deemed appropriate to ensure proper instruction.
3.7 New employees should complete the training program prior to
being assigned job responsibilities which require participation in
emergency response situations.
4. Conclusion
The information in this appendix is only intended to assist
response plan preparers in reviewing the content of and in modifying
the training section of their response plans. It may be more
comprehensive than is needed for some facilities and not
comprehensive enough for others. The Coast Guard expects that plan
preparers have determined the training needs of their organizations
created by the development of the response plans and the actions
identified as necessary to increase the preparedness of the company
and its personnel to respond to actual or threatened discharges of
oil from their facilities.
[[Page 7939]]
Dated: February 15, 1996.
A.E. Henn,
Vice Admiral, U.S. Coast Guard, Acting Commandant.
[FR Doc. 96-4274 Filed 2-28-96; 8:45 am]
BILLING CODE 4910-14-M
Complete official Federal Register PDF
FR Doc. 96-4243 Airworthiness Directives; AlliedSignal Inc. TFE731 Series Turbofan Engines
[Federal Register Volume 61, Number 41 (Thursday, February 29, 1996)]
[Rules and Regulations]
[Pages 7690-7692]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-4243]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF TRANSPORTATION
Federal Aviation Administration
14 CFR Part 39
[Docket No. 95-ANE-54; Amendment 39-9512; AD 96-04-01]
Airworthiness Directives; AlliedSignal Inc. TFE731 Series
Turbofan Engines
AGENCY: Federal Aviation Administration, DOT.
ACTION: Final rule; request for comments.
-----------------------------------------------------------------------
SUMMARY: This amendment supersedes an existing airworthiness directive
(AD), applicable to AlliedSignal Inc. (formerly Garrett Engine
Division) TFE731 series turbofan engines, that currently requires eddy
current inspection of certain fan rotor disks for cracks, and
replacement, if necessary, with serviceable parts. This amendment
requires reinspection of 33 additional fan rotor disks, beyond the
quantity of reinspections required by AD 93-25-16. This amendment is
prompted by discrepancies in several magnetic tape records discovered
as a result of recent improvements in the inspection tape review
process. The actions specified by this AD are intended to prevent an
uncontained failure of the fan rotor disk due to fatigue cracking in
the dovetail slots, which can result in inflight engine shutdowns,
severe secondary damage, and fan rotor assembly separation from the
engine.
DATES: Effective March 15, 1996.
The incorporation by reference of certain publications listed in
the regulations is approved by the Director of the Federal Register as
of March 15, 1996.
Comments for inclusion in the Rules Docket must be received on or
before April 29, 1996.
ADDRESSES: Submit comments in triplicate to the Federal Aviation
Administration (FAA), New England Region, Office of the Assistant Chief
Counsel, Attention: Rules Docket No. 95-ANE-54, 12 New England
Executive Park, Burlington, MA 01803-5299.
The service information referenced in this AD may be obtained from
AlliedSignal Aerospace, Attn: Data Distribution, M/S 64-03/2101-201,
P.O. Box 29003, Phoenix, AZ 85038-9003; telephone (602) 365-2493, fax
(602) 365-5577. This information may be examined at the FAA, New
England Region, Office of the Assistant Chief Counsel, Burlington, MA;
or at the Office of the Federal Register, 800 North Capitol Street,
NW., suite 700, Washington, DC.
FOR FURTHER INFORMATION CONTACT: Joseph Costa, Aerospace Engineer, Los
Angeles Aircraft Certification Office, FAA, Transport Airplane
Directorate, 3960 Paramount Blvd., Lakewood, CA 90712-4137; telephone
(310) 627-5246; fax (310) 627-5210.
SUPPLEMENTARY INFORMATION: On December 21, 1993, the Federal Aviation
Administration (FAA) issued airworthiness directive (AD) 93-25-16,
Amendment 39-8780 (59 FR 4, January 3, 1994), applicable to
AlliedSignal Inc. (formerly Garrett Engine Division) TFE731-2, -3, and
-3R series turbofan engines. That AD requires eddy current inspection
of certain fan rotor disks for cracks, and replacement, if necessary,
of these fan rotor disks. That action was prompted by reports of an
uncontained failure of a fan rotor disk on an Allied Signal Inc. Model
TFE731-3 turbofan engine. The FAA investigation determined that a
fatigue crack originated in the aft acute corner of the dovetail slot.
The fan rotor disk had accumulated a total of 5,291 cycles in service
(CIS) at the time of the failure, and had been eddy current inspected
in 1990 when the disk had accumulated 4,055 CIS. The fan rotor disk
displayed evidence of broaching grooves produced during the manufacture
of the blade dovetail slots. These machining grooves may have
contributed to the fan rotor disk failure. From a metallurgical
analysis, the FAA determined that the failed fan rotor disk had
dovetail cracks which were not detected at the time of the eddy current
inspection. A review of the eddy current inspection process used to
inspect this fan rotor disk and all fan rotor disks inspected prior to
May 1991 determined that the inspection process was not acceptable.
Those fan rotor disk cracks, if not corrected, could result in an
uncontained failure of the fan rotor disk due to fatigue cracking in
the dovetail slots, which can result in inflight engine shutdowns,
severe secondary damage, and fan rotor assembly separation from the
engine.
After 1991, the eddy current inspection process required magnetic
tape records (henceforth referred to as tapes) of the eddy current
inspection
[[Page 7691]]
results for the fan rotor disk dovetail slots. These tapes can be
reviewed at any time following the initial inspection without
inconveniencing the operator. Since the issuance of that AD, through
recent improvements in the inspection tape review process, and
continued review of the tapes, the FAA has identified several tape
records as having discrepancies. A discrepancy does not always indicate
that a crack exists. This superseding AD requires a re-inspection of 33
additional fan rotor disks, beyond the quantity of reinspections
required by AD 93-25-16, to ensure that cracked fan rotor disks are
removed from service. To date, eddy current inspections have detected
fatigue cracks in the dovetail slots in approximately 176 (or 4%)
TFE731-2, -2A, -3, and -3R fan rotor disks, and those fan rotor disks
have been removed from service.
The FAA has reviewed and approved the technical contents of
AlliedSignal Alert Service Bulletin (ASB) No. TFE731-A72-3578, dated
May 31, 1995, that describes procedures for an improved, more
definitive eddy current inspection for fan rotor disk dovetail slot
cracks.
Since an unsafe condition has been identified that is likely to
exist or develop on other engines of this same type design, this AD
supersedes AD 93-25-16 to require reinspection of 33 additional fan
rotor disks, beyond the quantity of reinspections required by AD 93-25-
16, to ensure that cracked fan rotor disks are removed from service.
This action is required to be accomplished in accordance with the ASB
described previously.
Since a situation exists that requires the immediate adoption of
this regulation, it is found that notice and opportunity for prior
public comment hereon are impracticable, and that good cause exists for
making this amendment effective in less than 30 days.
Comments Invited
Although this action is in the form of a final rule that involves
requirements affecting flight safety and, thus, was not preceded by
notice and an opportunity for public comment, comments are invited on
this rule. Interested persons are invited to comment on this rule by
submitting such written data, views, or arguments as they may desire.
Communications should identify the Rules Docket number and be submitted
in triplicate to the address specified under the caption ADDRESSES. All
communications received on or before the closing date for comments will
be considered, and this rule may be amended in light of the comments
received. Factual information that supports the commenter's ideas and
suggestions is extremely helpful in evaluating the effectiveness of the
AD action and determining whether additional rulemaking action would be
needed.
Comments are specifically invited on the overall regulatory,
economic, environmental, and energy aspects of the rule that might
suggest a need to modify the rule. All comments submitted will be
available, both before and after the closing date for comments, in the
Rules Docket for examination by interested persons. A report that
summarizes each FAA-public contact concerned with the substance of this
AD will be filed in the Rules Docket.
Commenters wishing the FAA to acknowledge receipt of their comments
submitted in response to this notice must submit a self-addressed,
stamped postcard on which the following statement is made: ``Comments
to Docket Number 95- ANE-54.'' The postcard will be date stamped and
returned to the commenter.
The regulations adopted herein will not have substantial direct
effects on the States, on the relationship between the national
government and the States, or on the distribution of power and
responsibilities among the various levels of government. Therefore, in
accordance with Executive Order 12612, it is determined that this final
rule does not have sufficient federalism implications to warrant the
preparation of a Federalism Assessment.
The FAA has determined that this regulation is an emergency
regulation that must be issued immediately to correct an unsafe
condition in aircraft, and is not a ``significant regulatory action''
under Executive Order 12866. It has been determined further that this
action involves an emergency regulation under DOT Regulatory Policies
and Procedures (44 FR 11034, February 26, 1979). If it is determined
that this emergency regulation otherwise would be significant under DOT
Regulatory Policies and Procedures, a final regulatory evaluation will
be prepared and placed in the Rules Docket. A copy of it, if filed, may
be obtained from the Rules Docket at the location provided under the
caption ``ADDRESSES.''
List of Subjects in 14 CFR Part 39
Air transportation, Aircraft, Aviation safety, Incorporation by
reference, Safety.
Adoption of the Amendment
Accordingly, pursuant to the authority delegated to me by the
Administrator, the Federal Aviation Administration amends part 39 of
the Federal Aviation Regulations (14 CFR part 39) as follows:
PART 39--AIRWORTHINESS DIRECTIVES
1. The authority citation for part 39 continues to read as follows:
Authority: 49 USC 106(g), 40113, 44701.
Sec. 39.13 [Amended]
2. Section 39.13 is amended by removing Amendment 39-8780, (59 FR
4, January 3, 1994), and by adding a new airworthiness directive,
Amendment 39-9512, to read as follows:
96-04-01 AlliedSignal Inc.: Amendment 39-9512. Docket 95- ANE-54.
Supersedes AD 93-25-16, Amendment 39-8780.
Applicability: AlliedSignal Inc. (formerly Garrett Engine
Division) TFE731-2, -2A, -3, -3R series turbofan engines with fan
rotor disks, part numbers (P/N's) 3072162-1 through -4, 3073436-1
through -4, 3073539-2, and 3074529-2, installed on, but not limited
to: Avions Marcel Dassault Falcon 10, 50, 100 series; Learjet 31,
35, 36 series; Lockheed-Georgia 1329-23, -25 series; Israel Aircraft
Industries 1124 series; Raytheon British Aerospace HS125 series; and
Sabreliner NA-265-65 aircraft.
Note: This airworthiness directive (AD) applies to each engine
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 engines that have been
modified, altered, or repaired so that the performance of the
requirements of this AD is affected, the owner/operator must use the
authority provided in paragraph (e) to request approval from the
Federal Aviation Administration (FAA). This approval may address
either no action, if the current configuration eliminates the unsafe
condition, or different actions necessary to address the unsafe
condition described in this AD. Such a request should include an
assessment of the effect of the changed configuration on the unsafe
condition addressed by this AD. In no case does the presence of any
modification, alteration, or repair remove any engine from the
applicability of this AD.
Compliance: Required as indicated, unless accomplished
previously.
To prevent an uncontained failure of the fan rotor disk due to
fatigue cracking in the dovetail slots, which can result in inflight
engine shutdowns, severe secondary damage, and fan rotor assembly
separation from the engine, accomplish the following:
(a) No further action is required for fan rotor disks previously
eddy current inspected in accordance with the requirements of AD 92-
26-09 and AD 93-25-16.
(b) Remove prior to further flight fan rotor disk, P/N 3073539-2
or 3072162-2, with Serial Number (S/N) 8-18040-6300, in accordance
with Allied-Signal Inc. Alert Service Bulletin (ASB) No. TFE731-A72-
3504, dated November 25, 1992, or AlliedSignal Inc. ASB No. TFE731-
A72-
[[Page 7692]]
3504, Revision 1, dated July 2, 1993, and replace with a serviceable
fan rotor disk.
(c) Incorporate new eddy current inspection procedures in
accordance with ASB No. TFE731-A72-3578, dated May 31, 1995, within
30 days after the effective date of this AD. Fan rotor disks
requiring eddy current inspection, prior to the incorporation of the
new eddy current procedure previously mentioned, may be inspected in
accordance with AlliedSignal Inc. ASB No TFE731-A72-3504 dated
November 25, 1992, or TFE731-A72-3504, Revision 1, dated July 2,
1993.
(d) Eddy current inspect fan rotor disks, P/N 3072162-1 through
-4, 3073436-1 through -4, 3073539-2, and 3074529-2, in accordance
with the Accomplishment Instructions of AlliedSignal Inc. ASB No.
TFE731-A72-3578, dated May 31, 1995, and if necessary, replace with
a serviceable disk, as follows:
(1) For fan rotor disks listed by S/N in Table 2 of Allied-
Signal Inc. ASB No. TFE731-A72-3504, dated November 25, 1992, or
AlliedSignal Inc. ASB No. TFE731-A72-3504, Revision 1, dated July 2,
1993, inspect, and if necessary, replace with a serviceable fan
rotor disk within 50 cycles in service (CIS) after April 9, 1993
(effective date of AD 92-26-09).
(2) For the 10 added fan rotor disks listed by S/N in Table 3 of
AlliedSignal Inc. ASB No. TFE731-A72-3504, Revision 1, dated July 2,
1993, with 5,000 or more CIS since new on January 18, 1994
(effective date of AD 93-25-16), inspect, and if necessary, replace
with a serviceable fan rotor disk, within the next 50 CIS after
January 18, 1994 (effective date of AD 93-25-16).
(3) For fan rotor disks listed by S/N in Table 3 of AlliedSignal
Inc. ASB No. TFE731-A72-3504, Revision 1, dated July 2, 1993, other
than the 10 added fan rotor disks, with 5,000 or more CIS since new
on April 9, 1993, (effective date of AD 92-26-09), inspect, and if
necessary, replace with a serviceable fan rotor disk, within the
next 50 CIS after April 9, 1993 (effective date of AD 92-26-09).
(4) For the 10 added fan rotor disks listed by S/N in Table 3 of
AlliedSignal Inc. ASB No. TFE731-A72-3504, Revision 1, dated July 2,
1993, with less than 5,000 CIS since new on January 18, 1994,
(effective date of AD 93-25-16), inspect, and if necessary, replace
with a serviceable fan rotor disk within the next 100 CIS after
January 18, 1994, (effective date of AD 93-25-16) or prior to
accumulating 5,050 CIS since new, whichever occurs first.
(5) For fan rotor disks listed by S/N in Table 3 of AlliedSignal
Inc. ASB No. TFE731-A72-3504, Revision 1, dated July 2, 1993, other
than the 10 added fan rotor disks, with less than 5,000 CIS since
new on April 9, 1993 (effective date of AD 92-26-09), inspect, and
if necessary, replace with a serviceable fan rotor disk, within the
next 100 CIS after April 9, 1993 (effective date of AD 92-26-09), or
prior to accumulating 5,050 CIS since new, whichever occurs first.
(6) For fan rotor disks listed by S/N in Table 4 of AlliedSignal
Inc. ASB No. TFE731-A72-3504, Revision 1, dated July 2, 1993,
inspect, and if necessary, replace with a serviceable fan rotor
disk, within the next 100 CIS after January 18, 1994, (effective
date of AD 93-25-16).
(7) For fan rotor disks listed by S/N in Table 1 of AlliedSignal
Inc. ASB No. TFE731-A72-3578, dated May 31, 1995, inspect, and if
necessary, replace with a serviceable disk, within 50 CIS after the
effective date of this AD.
(e) An alternative method of compliance or adjustment of the
compliance time that provides an acceptable level of safety may be
used if approved by the Manager, Los Angeles Aircraft Certification
Office. The request should be forwarded through an appropriate FAA
Principal Maintenance Inspector, who may add comments and then send
it to the Manager, Los Angeles Aircraft Certification Office.
Note: Information concerning the existence of approved
alternative methods of compliance with this airworthiness directive,
if any, may be obtained from the Los Angeles Aircraft Certification
Office.
(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 aircraft to a location where
the requirements of this AD can be accomplished.
(g) The actions required by this AD shall be done in accordance
with the following service documents:
------------------------------------------------------------------------
Document No. Pages Revision Date
------------------------------------------------------------------------
AlliedSignal Inc. ASB No. 1-12 Original...... May 31, 1995.
TFE731-A72-3578.
Total pages: 12.
Allied-Signal Inc. ASB No. 1-24 Original...... November 25,
TFE731-A72-3504. 1992.
Total pages: 24.
Allied-Signal Inc. ASB No. 1-28 Revision 1.... July 2, 1993.
TFE731-A72-3504.
Total pages: 28.
------------------------------------------------------------------------
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 AlliedSignal Aerospace, Attn: Data
Distribution, M/S 64-03/2101-201, P.O. Box 29003, Phoenix, AZ 85038-
9003; telephone (602) 365-2493, fax (602) 365-5577. Copies may be
inspected at the FAA, New England Region, Office of the Assistant Chief
Counsel, 12 New England Executive Park, Burlington, MA; or at the
Office of the Federal Register, 800 North Capitol Street, NW., suite
700, Washington, DC.
(h) This amendment becomes effective on March 15, 1996.
Issued in Burlington, Massachusetts, on February 2, 1996.
Jay J. Pardee,
Manager, Engine and Propeller Directorate, Aircraft Certification
Service.
[FR Doc. 96-4243 Filed 2-28-96; 8:45 am]
BILLING CODE 4910-13-P
Complete official Federal Register PDF
FR Doc. 96-4242 Airworthiness Directives; AlliedSignal Inc., ALF502L Series Turbofan Engines
[Federal Register Volume 61, Number 41 (Thursday, February 29, 1996)]
[Rules and Regulations]
[Pages 7692-7694]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-4242]
-----------------------------------------------------------------------
DEPARTMENT OF TRANSPORTATION
14 CFR Part 39
[Docket No. 94-ANE-56; Amendment 39-9513; AD 96-04-02]
Airworthiness Directives; AlliedSignal Inc., ALF502L Series
Turbofan Engines
AGENCY: Federal Aviation Administration, DOT.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: This amendment adopts a new airworthiness directive (AD),
applicable to AlliedSignal Inc. (formerly Textron Lycoming) ALF502L
series turbofan engines, that establishes reduced retirement life
limits for stage 1 and stage 3-7 compressors disks, and stage 2 turbine
disks, and provides a drawdown schedule for disks already beyond the
reduced retirement life limits. This amendment is prompted by new life
analyses of these components. The actions specified by this AD are
intended to prevent disk failure, which could result in an inflight
engine shutdown and extensive engine damage.
DATES: Effective April 29, 1996.
The incorporation by reference of certain publications listed in
the regulations is approved by the Director of the Federal Register as
of April 29, 1996.
ADDRESSES: The service information referenced in this AD may be
obtained from AlliedSignal Engines, 111 South 34th Street, Phoenix, AZ
85072; telephone (602) 365-2493, fax (602) 365-2210. This information
may be examined at the Federal Aviation
[[Page 7693]]
Administration (FAA), New England Region, Office of the Assistant Chief
Counsel, 12 New England Executive Park, Burlington, MA; or at the
Office of the Federal Register, 800 North Capitol Street, NW., suite
700, Washington, DC.
FOR FURTHER INFORMATION CONTACT: Eugene Triozzi, Aerospace Engineer,
Engine Certification Office, FAA, Engine and Propeller Directorate, 12
New England Executive Park, Burlington, MA 01803-5299; telephone (617)
238-7148, fax (617) 238-7199.
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 AlliedSignal Inc. (formerly
Textron Lycoming) ALF502L series turbofan engines was published in the
Federal Register on February 28, 1995 (60 FR 10811). That action
proposed to establish reduced retirement life limits for stage 1 and
stage 3-7 compressors disks, and stage 2 turbine disks, and provide a
drawdown schedule for disks already beyond the reduced retirement life
limits. These actions must be performed in accordance with AlliedSignal
Engines Service Bulletin (SB) No. ALF 502 72-0004, Revision 12, dated
November 30, 1994, that describes reduced retirement lives for affected
components; and AlliedSignal Engines SB No. ALF502L 72-281, dated
November 30, 1994, that describes a drawdown schedule for disks already
beyond the reduced retirement life limits.
Interested persons have been afforded an opportunity to participate
in the making of this amendment. No comments were received on the
proposal or the FAA's determination of the cost to the public. The FAA
has determined that air safety and the public interest require the
adoption of the rule as proposed.
There are approximately 184 engines of the affected design in the
worldwide fleet. The FAA estimates that 50 engines installed on
aircraft of U.S. registry will be affected by this AD, and that the
prorated reduced service life cost based on the cost of a new disk is
approximately $16,400 per engine. Based on these figures, the total
cost impact of the AD on U.S. operators is estimated to be $820,000.
The regulations adopted herein will not have substantial direct
effects on the States, on the relationship between the national
government and the States, or on the distribution of power and
responsibilities among the various levels of government. Therefore, in
accordance with Executive Order 12612, it is determined that this final
rule does not have sufficient federalism implications to warrant the
preparation of a Federalism Assessment.
For the reasons discussed above, I certify that this action (1) is
not a ``significant regulatory action'' under Executive Order 12866;
(2) is not a ``significant rule'' under DOT Regulatory Policies and
Procedures (44 FR 11034, February 26, 1979); and (3) will not have a
significant economic impact, positive or negative, on a substantial
number of small entities under the criteria of the Regulatory
Flexibility Act. A final evaluation has been prepared for this action
and it is contained in the Rules Docket. A copy of it may be obtained
from the Rules Docket at the location provided under the caption
ADDRESSES.
List of Subjects in 14 CFR Part 39
Air Transportation, Aircraft, Aviation safety, Incorporation by
reference, Safety.
Adoption of the Amendment
Accordingly, pursuant to the authority delegated to me by the
Administrator, the Federal Aviation Administration amends part 39 of
the Federal Aviation Regulations (14 CFR part 39) as follows:
PART 39--AIRWORTHINESS DIRECTIVES
1. The authority citation for part 39 continues to read as follows:
Authority: 49 USC 106(g), 40113, 44701.
Sec. 39.13 [Amended]
2. Section 39.13 is amended by adding the following new
airworthiness directive:
94-04-02 AlliedSignal Inc.: Amendment 39-9513. Docket 94- ANE-56.
Applicability: AlliedSignal Inc. (formerly Textron Lycoming)
ALF502L, L-2, L-2A, L-2C, and L-3 turbofan engines installed on but
not limited to Canadair Challenger CL600 series aircraft.
Note: This airworthiness directive (AD) applies to each engine
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 engines that have been
modified, altered, or repaired so that the performance of the
requirements of this AD is affected, the owner/operator must use the
authority provided in paragraph (c) to request approval from the
Federal Aviation Administration (FAA). This approval may address
either no action, if the current configuration eliminates the unsafe
condition, or different actions necessary to address the unsafe
condition described in this AD. Such a request should include an
assessment of the effect of the changed configuration on the unsafe
condition addressed by this AD. In no case does the presence of any
modification, alteration, or repair remove any engine from the
applicability of this AD.
Compliance: Required as indicated, unless accomplished
previously.
To prevent disk failure, which could result in an inflight
engine shutdown and extensive engine damage, accomplish the
following:
(a) Remove from service stage 1 and stage 3-7 compressor disks,
and stage 2 turbine disks, in accordance with the drawdown schedule
and procedures described in AlliedSignal Engines Service Bulletin
(SB) No. ALF502L 72- 281, dated November 30, 1994.
(b) This AD establishes new, reduced retirement life limits for
stage 1 and stage 3-7 compressor disks, and stage 2 turbine disks,
in accordance with AlliedSignal Engines SB No. ALF 502 72-0004,
Revision 12, dated November 30, 1994.
(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, Engine Certification Office. The
request should be forwarded through an appropriate FAA Principal
Maintenance Inspector, who may add comments and then send it to the
Manager, Engine Certification Office.
Note: Information concerning the existence of approved
alternative methods of compliance with this airworthiness directive,
if any, may be obtained from the Engine Certification Office.
(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 aircraft to a location where
the requirements of this AD can be accomplished.
(e) The actions required by this AD shall be done in accordance
with the following AlliedSignal Engines SB's:
----------------------------------------------------------------------------------------------------------------
Document No. Pages Revision Date
----------------------------------------------------------------------------------------------------------------
ALF502L 72-281........................ 1-4 Original............... November 30, 1994.
Total pages: 4.
ALF 502 72-0004....................... 1-23 12..................... November 30, 1994.
Total pages: 23.
----------------------------------------------------------------------------------------------------------------
[[Page 7694]]
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 AlliedSignal Engines, 111 South 34th
Street, Phoenix, AZ 85072; telephone (602) 365-2493, fax (602) 365-
2210. Copies may be inspected at the FAA, New England Region, Office of
the Assistant Chief Counsel, 12 New England Executive Park, Burlington,
MA; or at the Office of the Federal Register, 800 North Capitol Street
NW., suite 700, Washington, DC.
(f) This amendment becomes effective on April 29, 1996.
Issued in Burlington, Massachusetts, on February 2, 1996.
Jay J. Pardee,
Manager, Engine and Propeller Directorate, Aircraft Certification
Service.
[FR Doc. 96-4242 Filed 2-28-96; 8:45 am]
BILLING CODE 4910-13-P
Complete official Federal Register PDF
FR Doc. 96-4038 Protection of Stratospheric Ozone: Direct-Final Rulemaking Temporarily Extend the Existing Requirements
[Federal Register Volume 61, Number 41 (Thursday, February 29, 1996)]
[Rules and Regulations]
[Pages 7724-7727]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-4038]
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 82
[FRL-5428-6]
RIN 2060-AF36
Protection of Stratospheric Ozone: Direct-Final Rulemaking
Temporarily Extend the Existing Requirements
AGENCY: Environmental Protection Agency (EPA).
ACTION: Direct final rule.
-----------------------------------------------------------------------
SUMMARY: Through this action EPA is amending the Clean Air Act section
608 refrigerant recycling regulations to extend the effectiveness of
the refrigerant purity requirements of Sec. 82.154 (g) and (h), which
are currently scheduled to expire on March 18, 1996, until December 31,
1996, or until EPA completes rulemaking to adopt revised refrigerant
purity requirements based on industry guidelines, whichever comes
first. EPA is extending the requirements in response to requests from
the air-conditioning and refrigeration industry to avoid widespread
contamination of the stock of chlorofluorocarbon (CFC) and
hydrochlorofluorocarbon (HCFC) refrigerants that could result from the
lapse of the purity standard. Such contamination would cause extensive
damage to air-conditioning and refrigeration equipment, release of
refrigerants, and refrigerant shortages with consequent price
increases.
EPA anticipates, before the close of the comment period for this
direct final, publishing a proposal to adopt a more flexible approach
to ensuring the purity of refrigerants and soliciting public comment on
this approach. EPA requests that readers of this notice review that
proposal, and consider providing comments.
This temporary extension will not result in any additional burden
on the regulated community. Moreover, the retention of the reclamation
requirement will protect the environment, public health, and consumers
by ensuring that contaminated refrigerants are not vented or charged
into equipment.
EFFECTIVE DATE: The direct final rule will become effective on April
15, 1996 unless significant adverse comments are received by April 1,
1996. If significant adverse comments are timely received on this
direct final rule, EPA will withdraw the direct final rule and timely
notice to that effect will be published in the Federal Register. All
comments will then be addressed in a subsequent final rule based on the
proposed rule contained in the Proposed Rules section of this Federal
Register that is identical to this direct final rule. If no significant
adverse comments are timely received on this direct final rule then the
direct final rule will become effective 45 days from today's Federal
Register notice and no further action is contemplated on the parallel
proposal.
ADDRESSES: Comments and materials supporting this rulemaking are
contained in Public Docket No. A-92-01, Waterside Mall (Ground Floor)
Environmental Protection Agency, 401 M Street SW., Washington, DC 20460
in room M-1500. Dockets may be inspected from 8:00 a.m. until 5:30
p.m., Monday through Friday. A reasonable fee may be charged for
copying docket materials. Those wishing to notify EPA of their intent
to submit adverse comments on this action should contact Cindy Newberg,
Program Implementation Branch, Stratospheric Protection Division,
Office of Atmospheric Programs, Office of Air and Radiation (6205-J),
401 M Street SW., Washington, DC 20460, (Docket # A-92-01 VIII.G.)
(202) 233-9729.
FOR FURTHER INFORMATION CONTACT: Cindy Newberg, Program Implementation
Branch, Stratospheric Protection Division, Office of Atmospheric
Programs, Office of Air and Radiation (6205-J), 401 M Street, SW.,
Washington, DC 20460. The Stratospheric Ozone Information Hotline at 1-
800-296-1996 can also be contacted for further information.
SUPPLEMENTARY INFORMATION: The contents of this preamble are listed in
the following outline:
I. Overview
II. Background
III. Today's Action
IV. Effective Date
V. Summary of Supporting Analysis
I. Overview
Paragraphs 82.154(g) and (h) of 40 CFR part 82, subpart F set
requirements for sale of used refrigerant, mandating that it meet
certain purity standards. These requirements will expire on March 18,
1996. EPA is currently in the process of promulgating new, more
flexible, requirements based on industry guidelines, but will be unable
to complete the rulemaking prior to the expiration of the existing
standards. A lapse in the standards could result in widespread
contamination of the stock of CFC and HCFC refrigerants. Such
contamination would cause extensive damage to air-conditioning and
refrigeration equipment, release of refrigerants, and refrigerant
shortages with consequent price increases. Release of CFC and HCFC
refrigerants has been found to deplete stratospheric ozone, resulting
in increased human and environmental exposure to ultraviolet radiation.
Increased exposure to ultraviolet radiation in turn can lead to serious
health and environmental effects.
EPA is acting on requests from the air-conditioning and
refrigeration industry to extend the effectiveness of the current
refrigerant purity requirements, only until EPA can complete rulemaking
to adopt more flexible requirements that will still ensure refrigerant
purity.
II. Background
On May 14, 1993, EPA published final regulations establishing a
recycling program for ozone-depleting refrigerants recovered during the
servicing and disposal of air-conditioning and refrigeration equipment
(58 FR 28660). These regulations include evacuation requirements for
appliances being serviced or disposed of, standards and testing
requirements for used refrigerant sold to a new owner, certification
requirements for refrigerant reclaimers, and standards and testing
requirements for refrigerant recycling and recovery equipment.
[[Page 7725]]
When EPA promulgated the final rule, the Agency noted that further
rulemaking would be required to address issues that had been raised
during the comment period for the proposed rule (57 FR 58644). One of
these issues was whether a standard for used refrigerant could be
developed that would protect air-conditioning and refrigeration
equipment, but would allow technicians to clean refrigerant themselves,
rather than sending the refrigerant to an off-site reclaimer.
The final rule published on May 14, 1993, requires that refrigerant
sold to a new owner be reclaimed to the ARI Standard 700 of purity by a
certified reclaimer (Sec. 82.154(g) and (h) referencing standard in
Sec. 82.164 and the definition of reclaim found in Sec. 82.152). As
discussed in the final rule, this requirement protects the purity of
used refrigerant to prevent damage to air-conditioning and
refrigeration equipment from the use of contaminated refrigerant.
Equipment damage from contaminated refrigerant would result in costs to
equipment owners, in releases of refrigerant from damaged equipment
through increased leakage, servicing and replacement, and in reduction
in consumer confidence in the quality of used refrigerant. This
reduction in consumer confidence could lead to the premature retirement
or retrofit of CFC or HCFC equipment since consumers would no longer
believe that a sufficient stock of trustworthy refrigerants was
available.
Although the reclamation requirements contained in 82.154(g) and
(h) would clearly protect equipment, EPA believed that a more flexible
but as effective requirement should be developed, particularly for
refrigerant transferred between owners whose equipment was similar and
was serviced by the same contractor. However, the only existing
standard at the time EPA promulgated the rule was ARI Standard 700, and
the only agreed upon means of enforcing it was by limiting sale of used
refrigerant to only certified reclaimers. Certified reclaimers, unlike
contractors or technicians, are required to have the equipment
available that can verify that the refrigerant meets the purity
standards, thus ensuring its purity prior to selling the refrigerants.
In order to encourage industry to explore the possibility of
developing more flexible but still effective standards and technologies
for purifying refrigerant, as well as more flexible means for ensuring
compliance with purity standards, EPA adopted a commenter's suggestion
and established an expiration date, or ``sunset,'' for the reclamation
requirement. EPA accordingly made the reclamation requirements at
Sec. 82.154 (g) and (h) effective until May 15, 1995, two years after
publication of the final rule. EPA believed that this two-year period
would be sufficient for industry to develop new guidelines for reuse of
refrigerant and for EPA to complete a rulemaking to adopt them if EPA
determined that they would continue to reduce emissions to the lowest
achievable level and maximize the recapture and recycling of
refrigerants (58 FR 28679).
In December, 1994, a committee representing a wide range of
interests within the air-conditioning and refrigeration industry
published Industry Recycling Guide (IRG-2): Handling and Reuse of
Refrigerants in the United States. This document establishes
requirements and recommendations for the reuse of refrigerant in a
number of different situations, including refrigerant transfers on the
open market and between equipment owned by different people but
serviced by the same contractor. Because EPA believes that these
requirements would protect air-conditioning and refrigeration equipment
while permitting technicians, contractors, and equipment owners more
flexibility than the current requirements, EPA began pursuing a
rulemaking to adopt the IRG-2 requirements. However, because the
original sunset date was approaching, EPA also pursued a rulemaking to
extend the effectiveness of Sec. 82.154(g) and (h) (60 FR 14608). That
rulemaking extended the effectiveness of the provisions until March 18,
1996. EPA believed that this extension would provide sufficient
opportunity to develop and publish a proposed rule, take public
comment, and develop and publish a final rule.
EPA drafted a proposed rulemaking concerning the adoption of a more
flexible approach for ensuring refrigerant purity. However, several
events beyond the agency's control have delayed the EPA's ability to
release this proposal. While EPA expects to publish the proposal in the
Federal Register prior to the end of the comment period for this direct
final rulemaking, EPA will not have an opportunity to consider comments
and promulgate a final action concerning the IRG-2 requirements prior
to the expiration of these provisions on March 18, 1996.
Representatives of the air-conditioning and refrigeration industry
expressed concern that any lapse in refrigerant purity requirements
could result in a number of problems, including sloppy handling of
refrigerant and dumping of contaminated refrigerant on the market.
These problems would result in significant damage to equipment, release
of refrigerant, and aggravated refrigerant shortages.
Currently, the reclamation requirement encourages careful handling
of refrigerant, because refrigerant that is irretrievably contaminated
(for instance through mixture with other refrigerants) will not be
accepted by any reclaimer, rendering it worthless. If this check is
removed, sloppy handling may become widespread. This would not only
lead to damage to equipment, but to the permanent loss of part of the
stock of pure refrigerant through refrigerant mixture. Even in the best
case in which the mixed refrigerant was properly disposed of, the
limited supply of refrigerant would thereby be further reduced,
necessitating more retrofit or replacement of existing equipment.
Unfortunately, it is likely that the mixed refrigerant would often be
used in air-conditioning and refrigeration equipment or vented rather
than disposed of properly.
The possibility of widespread dumping of refrigerant on the market
has been raised by reports that contractors and ``recyclers'' are
stockpiling used refrigerant. In some cases, dumping dirty refrigerant
on the market might be attractive simply because it enables the seller
of refrigerant to avoid the costs of reclamation; for others, it might
be attractive because the refrigerant is unreclaimable and therefore
worthless if analyzed or sent to a reclaimer. In either situation, such
dumping would lead to widespread equipment damage and potential
releases of refrigerant. In addition, since domestic CFC production
ceased December 31, 1995, protecting the purity of the existing stock
of CFC refrigerants is essential.
III. Today's Action
In response to these concerns, EPA is extending the effectiveness
of the current reclamation requirements until the Agency can adopt
replacement requirements. It was never EPA's intent to leave air-
conditioning and refrigeration equipment and refrigerant supplies
unprotected by a purity standard, but only to replace the existing
standard with a more flexible standard when that was developed. As
discussed above, EPA is currently undertaking rulemaking to adopt a
more flexible standard.
[[Page 7726]]
IV. Summary of Supporting Analysis
A. Executive Order 12866
Under Executive Order 12866 (58 FR 51735, October 4, 1993), the
Agency must determine whether this regulatory action is ``significant''
and therefore subject to OMB review and the requirements of the
Executive Order. The Order defines ``significant'' regulatory action as
one that is likely to lead to a rule that may:
(1) Have an annual effect on the economy of $100 million or more,
or adversely and materially affect a sector of the economy,
productivity, competition, jobs, the environment, public health or
safety, or State, local, or tribal governments or communities;
(2) Create a serious inconsistency or otherwise interfere with an
action taken or planned by another agency;
(3) Materially alter the budgetary impact of entitlements, grants,
user fees, or loan programs or the rights and obligations of recipients
thereof; or
(4) Raise novel legal or policy issues arising out of legal
mandates, the President's priorities, or the principles set forth in
the Executive Order.
It has been determined by OMB and EPA that this action to amend the
final rule is not a ``significant regulatory action'' under the terms
of Executive Order 12866 and is therefore not subject to OMB review
under the Executive Order.
B. Unfunded Mandates Act
Section 202 of the Unfunded Mandates Reform Act of 1995 (``Unfunded
Mandates Act'') requires that the Agency prepare a budgetary impact
statement before promulgating a rule that includes a Federal mandate
that may result in expenditure by State, local, and tribal governments,
in aggregate, or by the private sector, of $100 million or more in any
one year. Section 203 requires the Agency to establish a plan for
obtaining input from and informing, educating, and advising any small
governments that may be significantly or uniquely affected by the rule.
Under section 205 of the Unfunded Mandates Act, the Agency must
identify and consider a reasonable number of regulatory alternatives
before promulgating a rule for which a budgetary impact statement must
be prepared. The Agency must select from those alternatives the least
costly, most cost-effective, or least burdensome alternative that
achieves the objectives of the rule, unless the Agency explains why
this alternative is not selected or the selection of this alternative
is inconsistent with law.
Because this rulemaking is estimated to result in the expenditure
by State, local, and tribal governments or private sector of less than
$100 million in any one year, the Agency has not prepared a budgetary
impact statement or specifically addressed the selection of the least
costly, most cost-effective, or least burdensome alternative. Because
small governments will not be significantly or uniquely affected by
this rule, the Agency is not required to develop a plan with regard to
small governments. As discussed in this preamble, this rule merely
extends the current reclamation requirements during consideration of a
more flexible approach that may result in reducing the burden of part
82 Subpart F of the Stratospheric Protection regulations on regulated
entities, including State, local, and tribal governments or private
sector entities.
C. Paperwork Reduction Act
There are no additional information collection requirements
associated with this rulemaking. EPA has determined that the Paperwork
Reduction Act does not apply. The initial Sec. 608 final rulemaking did
address all recordkeeping associated with the refrigerant purity
provisions. An Information Collection Request (ICR) document was
prepared by EPA and approved by the Office of Management and Budget
(OMB) under the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. This
ICR is contained in the public docket A-92-01.
D. Regulatory Flexibility Act
The Regulatory Flexibility Act, 5 U.S.C. 601-602, requires that
Federal agencies examine the impacts of their regulations on small
entities. Under 5 U.S.C. 604(a), whenever an agency is required to
publish a general notice of proposed rulemaking, it must prepare and
make available for public comment an initial regulatory flexibility
analysis (RFA). Such an analysis is not required if the head of an
agency certifies that a rule will not have a significant economic
impact on a substantial number of small entities, pursuant to 5 U.S.C.
605(b).
EPA believes that since this amendment merely extends a current
requirement designed to protect purity of refrigerants temporarily,
there will be no adverse effects for the regulated community, including
small entities. An examination of the impacts of these provisions was
discussed in the initial final rule promulgated under Sec. 608 (58 FR
28660). That final rule assessed the impact the rule may have on small
entities. A separate regulatory impact analysis was developed. That
impact analysis accompanied the final rule and is contained in Docket
A-92-01.
I certify that this amendment to the refrigerant recycling rule
will not have any additional negative economic impacts on any small
entities.
List of Subjects in 40 CFR Part 82
Environmental protection, Administrative practice and procedure,
Air pollution control, Chemicals, Chlorofluorocarbons,
Hydrochlorofluorocarbons, Interstate commerce, Reporting and
reclamation, recordkeeping requirements, refrigerant purity, recycling,
Stratospheric ozone layer.
Dated: February 14, 1996.
Carol M. Browner,
Administrator.
Part 82, chapter I, title 40, of the Code of Federal Regulations,
is amended to read as follows:
PART 82--PROTECTION OF STRATOSPHERIC OZONE
1. The authority citation for part 82 continues to read as follows:
Authority: 42 U.S.C. 7414, 7601, 7671-7671q.
2. Section 82.154 is amended by revising paragraphs (g) and (h) to
read as follows:
Sec. 82.154 Prohibitions.
* * * * *
(g) Effective until December 31, 1996, no person may sell or offer
for sale for use as a refrigerant any class I or class II substance
consisting wholly or in part of used refrigerant unless:
(1) The class I or class II substance has been reclaimed as defined
at Sec. 82.152;
(2) The class I or class II substance was used only in an MVAC or
MVAC-like appliance and is to be used only in an MVAC or MVAC-like
appliance; or
(3) The class I or class II substance is contained in an appliance
that is sold or offered for sale together with the class I or class II
substance.
(h) Effective until December 31, 1996, no person may sell or offer
for sale for use as a refrigerant any class I or class II substance
consisting wholly or in part of used refrigerant unless:
(1) The class I or class II substance has been reclaimed by a
person who has been certified as a reclaimer pursuant to Sec. 82.164;
(2) The class I or class II substance was used only in an MVAC or
MVAC-like appliance and is to be used only in an MVAC or MVAC-like
appliance; or
(3) The class I or class II substance is contained in an appliance
that is sold or
[[Page 7727]]
offered for sale together with the class I or class II substance.
* * * * *
[FR Doc. 96-4038 Filed 2-28-96; 8:45 am]
BILLING CODE 6560-50-P
Complete official Federal Register PDF
FR Doc. 96-3718 Washington; Final Authorization of State Hazardous Waste Management Program Revisions
[Federal Register Volume 61, Number 41 (Thursday, February 29, 1996)]
[Rules and Regulations]
[Pages 7736-7737]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-3718]
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 271
[FRL-5423-2]
Washington; Final Authorization of State Hazardous Waste
Management Program Revisions
AGENCY: Environmental Protection Agency.
ACTION: Immediate final rule.
-----------------------------------------------------------------------
SUMMARY: The State of Washington has applied for final authorization of
revisions to its hazardous waste program under the Resource
Conservation and Recovery Act (RCRA). The Environmental Protection
Agency (EPA) has reviewed Washington's application and has made a
decision, subject to public review and comment, that Washington's
hazardous waste program revision satisfies all of the requirements
necessary to qualify for final authorization. Thus, EPA intends to
approve Washington's hazardous waste program revisions. Washington's
application for program revision is available for public review and
comment.
DATES: Final authorization for the State of Washington shall be
effective April 29, 1996, unless EPA publishes a prior Federal Register
action withdrawing this immediate final rule. All comments on the State
of Washington's program revision application must be received by the
close of business April 1, 1996.
ADDRESSES: Copies of the State of Washington's program revision
application are available during normal business hours at the following
addresses for inspection and copying: U.S. Environmental Protection
Agency, Region 10, Library, 1200 Sixth Avenue, Seattle WA 98101,
contact: (206) 553-1259; Washington Department of Ecology, 300 Desmond
Drive, Lacey WA 98503, contact: Patricia Hervieux, (360) 407-6756;
Washington Department of Ecology, Eastern Region, N. 4601 Monroe, Suite
100, Spokane WA 99205, contact: Jim Malm, (509) 456-2725. Written
comments should be sent to Patricia Springer, U. S. Environmental
Protection Agency, Region 10, HW-105, 1200 Sixth Avenue, Seattle WA
98101, Phone (206) 553-2858.
FOR FURTHER INFORMATION CONTACT: Patricia Springer, U. S. Environmental
Protection Agency, Region 10, HW-105, 1200 Sixth Avenue, Seattle WA
98101, Phone (206) 553-2858.
SUPPLEMENTARY INFORMATION:
Background
States with final authorization under Section 3006(b) of the
Resource Conservation and Recovery Act (``RCRA or ``the Act''), 42
U.S.C. 6929(b), have a continuing obligation to maintain a hazardous
waste program that is equivalent to, consistent with, and no less
stringent than the Federal hazardous waste program. In addition, as an
interim measure, the Hazardous and Solid Waste Amendments of 1984
(Public Law 98-616, November 8, 1984, hereinafter ``HSWA'') allows
States to revise their programs to become substantially equivalent
instead of equivalent to RCRA requirements promulgated under HSWA
authority. States exercising the latter option receive ``interim
authorization'' for the HSWA requirements under Section 3006(g) of
RCRA, 42 U.S.C. 6926(g), and later apply for final authorization for
the HSWA requirements.
Revisions to State hazardous waste programs are necessary when
federal or state statutory or regulatory authority is modified or when
certain other changes occur. Most commonly, state program revisions are
necessitated by changes to EPA's regulations in 40 CFR Parts 124, 260-
266, 268, 270 and 279.
State of Washington
The State of Washington initially received final authorization on
January 31, 1986. Washington also received authorization for revisions
to its program on November 23, 1987 (52 FR 35556, 9/22/87), October 16,
1990 (55 FR 33695, 8/17/90), and November 4, 1994 (59 FR 55322, 11/4/
94). On November 9, 1995, Washington submitted a program revision
application for additional program approvals. Today, Washington is
seeking approval of its program revision in accordance with 40 CFR
271.21(b)(3).
[[Page 7737]]
EPA has reviewed Washington's application, and has made an
immediate final decision that the State's hazardous waste program
revision satisfies all of the requirements necessary to qualify for
final authorization. Consequently, EPA intends to grant final
authorization for the additional program modifications to Washington's
hazardous waste program. The public may submit written comments on
EPA's immediate final decision up until (insert date at least 30
calendar days after date of publication in Federal Register). Copies of
the State of Washington's application for program revision are
available for inspection and copying at the locations indicated in the
Addresses section of this notice.
Approval of the State of Washington's program revision shall become
effective in 60 days unless an adverse comment pertaining to the
State's revision discussed in this notice is received by the end of the
comment period. If an adverse comment is received EPA will publish
either (1) A withdrawal of the immediate final decision or (2) a notice
containing a response to comments which either affirms that the
immediate final decision takes effect or reverses the decision.
The State of Washington has requested authorization for the
following federal rules:
Non-HSWA Rules:
Hazardous Waste Storage and Treatment Tank Systems, 51 FR 25422, 7/
14/86 (CL 28);
Listing of Commercial Chemical Products and Appendix VIII
Constituents--Correction, 51 FR 28296, 8/6/86 (CL 29);
Revised Manual SW-846, 52 FR 8072, 3/16/87 (CL 35);
Hazardous Waste Tank Systems--Correction, 51 FR 29430, 8/15/86 (CL
28);
Closure/Post-Closure Care for Interim Status Surface Impoundments,
52 FR 8704, 3/19/87 (CL 36);
Definition of Solid Waste--Technical Correction, 52 FR 21306, 6/5/
87 (CL 37);
HW Constituents for Ground Water Monitoring (Phase I), 52 FR 25942,
7/9/87 (CL 40);
Listing of Hazardous Waste--Container/Inner Liner Correction, 52 FR
26012, 7/10/87 (CL 41);
Liability Requirements for HW Facilities--Corporate Guarantee, 52
FR 44314, 11/18/87 (CL 43);
Miscellaneous Units, 52 FR 46946, 12/10/87 (CL 45);
Technical Correction--Listing of Hazardous Waste, 53 FR 13382, 4/
22/88 (CL 46);
Treatability Studies Sample Exemption, 53 FR 27290, 7/19/88 (CL
49);
Storage and Treatment Tank Systems, 53 FR 34079, 9/2/88 (CL 52);
Listing of Primary Metal Smelter Wastes--Spent Pot Liner, 53 FR
35412, 9/13/88 (CL 53);
Permit Modifications for HW Management Facilities, 53 FR 37912, 9/
28/88 and 53 FR 41649, 10/24/88 (CL 54);
Statistical Methods for Evaluating Ground Water Monitoring Data, 53
FR 39720, 10/11/88 (CL 55);
Hazardous Waste Miscellaneous Units, 54 FR 615, 1/9/89 (CL 59);
Incinerator Permits, 54 FR 4286, 1/30/89 (CL 60);
Changes to Interim Status Facilities & Modifications to HW
Management Permits; Procedures for Post-Closure Permitting, 54 FR 9596,
3/7/89 (CL 61).
HSWA Rules:
Dioxin Waste Listings, 50 FR 1978, 1/14/85 (CL 14);
Paint Filter Test, 50 FR 18370, 4/30/85 (CL 16);
Research and Development Permits, 50 FR 28702, 7/15/85 (CL 17Q);
Used Oil and HW Burned as Fuels, 50 FR 49164, 11/29/85 and 52 FR
11819, 4/13/87 (CL 19);
Small Quantity Generator Requirements, 51 FR 10146, 3/24/86 (CL
23);
Codification Rule, Technical Correction, 51 FR 19176, 5/28/86 (CL
25);
Listing of EBDC, 51 FR 37725, 10/24/86 (CL 33);
Toxicity Characteristic Revisions, 55 FR 11798, 3/29/90 and 55 FR
26986, 6/29/90 (CL 74).
The CL numbers reference regulation-specific checklists in the
application which identify the specific federal regulation citation and
the state regulation analog.
Some portions of Washington's revised program are broader in scope
than the federal program, and thus are not federally enforceable. This
action does not authorize the identified broader in scope provisions.
Some portions of Washington's revised program are more stringent than
the federal program. This action makes these more stringent provisions
a part of the federally authorized RCRA program. Both the broader in
scope and more stringent provisions are identified in the Checklists
and discussed in the Attorney General's Statement accompanying the
application.
Indian Lands
Washington is not seeking authorization to operate on Indian lands.
Decision
I conclude that the State of Washington's program revision
application meets all of the statutory and regulatory requirements
established by RCRA. Accordingly, Washington is granted final
authorization to operate its hazardous waste program as revised.
Washington now has responsibility for permitting treatment, storage,
and disposal facilities within its borders and carrying out the aspects
of the RCRA program described in its revised program application,
subject to the limitations of the HSWA. The State of Washington also
has primary enforcement responsibilities, although EPA retains the
right to conduct inspections under Section 3007 of RCRA, 42 U.S.C.
6927, and to take enforcement actions under Sections 3008, 3013 and
7003 of RCRA, 42 U.S.C. 6928, 6934, and 6973.
Compliance With Executive Order 12866
The Office of Management and Budget has exempted this rule from the
requirements of Section 6 of Executive Order 12866.
Certification Under the Regulatory Flexibility Act
Pursuant to the provisions of 4 U.S.C. 605(b), I hereby certify
that this authorization will not have a significant economic impact on
a substantial number of small entities. This authorization effectively
suspends the applicability of certain Federal regulations in favor of
the State of Washington's program, thereby eliminating duplicative
requirements for handlers of hazardous waste in the State. It does not
impose any new burdens on small entities. This rule, therefore, does
not require a regulatory flexibility analysis.
Authority
This notice is issued under the authority of Sections 2002(a), 3006
and 7004(b) of the Solid Waste Disposal Act as amended 42 U.S.C.
6912(a), 6926, 6974(b).
Dated` February 8, 1996.
Chuck Clarke,
Regional Administrator.
[FR Doc. 96-3718 Filed 2-28-96; 8:45 am]
BILLING CODE 6560-50-P
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