issue-1996-04-03•Federal Register final rules — 1996-04-03
Federal Register final rules — 1996-04-03
issue-1996-04-03Federal Register final rules — 1996-04-03Regulation
Published Federal Register documents, not public-inspection drafts. The GPO XML/text rendition is a research aid; the linked complete official PDF retains the printed layout and all graphics. Graphics are retained in that PDF and are not independently reproduced in this text rendition. Publication does not establish that every provision remains legally in force.
FR Doc. 96-8177 Reef Fish Fishery of the Gulf of Mexico; Closure of the Commercial Red Snapper Component
[Federal Register Volume 61, Number 65 (Wednesday, April 3, 1996)]
[Rules and Regulations]
[Page 14683]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-8177]
-----------------------------------------------------------------------
DEPARTMENT OF COMMERCE
50 CFR Part 641
[Docket No. 94113-4354; I.D. 032896A]
Reef Fish Fishery of the Gulf of Mexico; Closure of the
Commercial Red Snapper Component
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Closure.
-----------------------------------------------------------------------
SUMMARY: NMFS closes the commercial fishery for red snapper in the
exclusive economic zone (EEZ) of the Gulf of Mexico. NMFS has projected
that the annual commercial quota for red snapper will be reached on
April 4, 1996. This closure is necessary to protect the red snapper
resource.
EFFECTIVE DATE: Closure is effective 12:01 a.m., local time, April 5,
1996, through December 31, 1996.
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 and is implemented through
regulations at 50 CFR part 641 under the authority of the Magnuson
Fishery Conservation and Management Act (16 U.S.C. 1801 et seq.). Those
regulations set the commercial quota for red snapper in the Gulf of
Mexico at 3.06 million lb (1.39 million kg) for the current fishing
year, January 1 through December 31, 1996.
Under 50 CFR 641.26, NMFS is required to close the commercial
fishery for a species or species group when the quota for that species
or species group is reached, or is projected to be reached, by
publishing a notification to that effect in the Federal Register. Based
on current statistics, NMFS has projected that the commercial quota of
3.06 million lb (1.39 million kg) for red snapper will be reached on
April 4, 1996. Accordingly, the commercial fishery in the EEZ in the
Gulf of Mexico for red snapper is closed effective 12:01 a.m., local
time, April 5, 1996, through December 31, 1996, the end of the fishing
year. A vessel with a valid reef fish permit having red snapper on
board must land and barter, trade, or sell such red snapper prior to
12:01 a.m., local time, April 5, 1996.
During the closure, the bag limit applies to all harvests of red
snapper from the EEZ in the Gulf of Mexico. The daily bag limit for red
snapper is five per person. From 12:01 a.m., local time, April 5, 1996,
through December 31, 1996, the purchase, barter, trade, or sale of red
snapper taken from the EEZ is prohibited. This prohibition does not
apply to trade in red snapper that were harvested, landed, and
bartered, traded, or sold prior to 12:01 a.m., local time, April 5,
1996, and were held in cold storage by a dealer or processor.
Classification
This action is taken under 50 CFR 641.26 and is exempt from review
under E.O. 12866.
Dated: March 28, 1996.
Richard W. Surdi,
Acting Director, Office of Fisheries Conservation and Management,
National Marine Fisheries Service.
[FR Doc. 96-8177 Filed 4-2-96; 8:45 am]
BILLING CODE 3510-22-F
Complete official Federal Register PDF
FR Doc. 96-8159 Equal Employment Opportunity on Federal and Federal-Aid Construction Contracts (Including Supportive Services); Report Requirements
[Federal Register Volume 61, Number 65 (Wednesday, April 3, 1996)]
[Rules and Regulations]
[Pages 14615-14616]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-8159]
-----------------------------------------------------------------------
DEPARTMENT OF TRANSPORTATION
Federal Highway Administration
23 CFR Part 230
[FHWA Docket No. 82-19]
RIN 2125-AB15
Equal Employment Opportunity on Federal and Federal-Aid
Construction Contracts (Including Supportive Services); Report
Requirements
AGENCY: Federal Highway Administration (FHWA), DOT.
ACTION: Final rule; technical amendments.
-----------------------------------------------------------------------
SUMMARY: This document amends the current regulation on recordkeeping
and reporting requirements for on-the-job training on Federal-aid
construction contracts which require contractors to submit Form FHWA-
1409, Federal-Aid Highway Construction Contractor's Semi-Annual
Training Report, and State highway agencies to complete and submit Form
FHWA-1410, Federal-Aid Highway Construction Semi-Annual Training
Report. This amendment eliminates these reporting requirements in order
to reduce the administrative burden on contractors as well as States.
Additionally, the Office of Management and Budget approval for these
forms under the Paperwork Reduction Act has lapsed, and as a matter of
common industry practice, compliance by construction contractors and
States is not required.
EFFECTIVE DATE: May 3, 1996.
FOR FURTHER INFORMATION CONTACT: Linda J. Brown, Chief, Policy and
Program Development Division, Office of Civil Rights, 202-366-0471, or
Will Baccus, Office of Chief Counsel, 202-366-1396, Federal Highway
Administration, 400 Seventh Street, SW., Washington, D.C. 20590. Office
hours are from 7:45 a.m. to 4:15 p.m., e.t., Monday through Friday,
except Federal holidays.
SUPPLEMENTARY INFORMATION: On November 22, 1982, the FHWA published an
NPRM in the Federal Register (47 FR 52470). The rulemaking sought
comments on the elimination of unnecessary and burdensome recordkeeping
requirements being imposed on State highway agencies and construction
contractors. The data and information received during the comment
period and analysis initiated by the FHWA indicate that elimination of
the reporting requirement regarding on- the-job training on Federal-aid
construction contracts (23 CFR 230.121(d)(1) and (2)) would not
adversely impact other areas of the equal opportunity program as these
reports are not used for any related purpose e.g., contract compliance
determination or compilation of any report on the status of civil
rights programs.
Twenty-nine comments were submitted to the docket. State
transportation agencies, contractors, contractors associations, unions,
and other interested parties that commented to the docket
overwhelmingly supported the elimination of these recordkeeping and
reporting requirements. Also, current industry practice reflect the
views of the commenters regarding the
[[Page 14616]]
elimination of these recordkeeping and reporting requirements.
The FHWA agrees with the commenters since FHWA's goal is to avoid
imposing undue administrative burdens on the State highway agencies and
contractors while carrying out its equal opportunity program
responsibilities. The FHWA believes that amendment would have a
positive economic impact on contractors and State highway agencies as
well as the FHWA itself.
Additionally, the FHWA has convened an implementation team on civil
rights regulations. The team consists of representatives from FHWA's
headquarters and field offices, whose goal is to review, streamline,
and simplify civil rights regulations and to integrate civil rights
requirements with other program requirements. As a result of the team
effort, an NPRM will be published in 1996 to solicit comments on the
proposed revisions to the civil rights regulations.
Rulemaking Analyses and Notices
The NPRM upon which this final action is in part based was
published in 1982. The FHWA believes that further notice and
opportunity to comment are not necessary because the comments received
support elimination of these recordkeeping requirements, the common
practice now is not to require compliance with these requirements, and
removal of these requirements is consistent with the requirements of
the Paperwork Reduction Act and the President's Regulatory Reinvention
Initiative to reduce regulatory burdens.
Executive Order 12866 (Regulatory Planning and Review) and DOT
Regulatory Policies and Procedures
The FHWA has determined that this action is not a significant
regulatory action within the meaning of Executive Order 12866 or
significant within the meaning of the Department of Transportation's
regulatory policies and procedures. This rulemaking would result in the
elimination of FHWA regulations requiring contractors and State highway
agencies to submit semi-annual reports regarding on-the-job training.
This rulemaking eliminating these regulations will lessen an economic
burden imposed on these entities by these recordkeeping and reporting
requirements, but it will not cause any significant changes to the
amount of funding available to the State highway agencies. Thus, it is
anticipated that the economic impact of this rulemaking will be
minimal. In addition, it will not create a serious inconsistency with
any other agency's action or materially alter the budgetary impact of
any entitlement, grants, user fees, or loan programs; nor will
elimination of these regulations raise any novel legal or policy
issues. Therefore, a full regulatory evaluation is not required.
Regulatory Flexibility Act
In compliance with the Regulatory Flexibility Act (5 U.S.C. 601-
612), the FHWA has evaluated the effects of this rule on small
entities. Repeal of the recordkeeping and reporting requirements that
are the subject of this rulemaking will eliminate an administrative
burden currently being imposed on State highway agencies and
construction contractors. Some of these contractors most likely qualify
as ``small entities'' as defined in section 601 of the Regulatory
Flexibility Act. However, we believe that the lessening of the
administrative burden that will result from this rulemaking will not
result in a significant economic impact on these small entities. Thus,
the FHWA hereby certifies that this regulatory action will not have
significant economic impact on a substantial number of small entities.
Executive Order 12612 (Federalism Assessment)
This action has been analyzed in accordance with the principles and
criteria contained in Executive Order 12612, and it has been determined
that this rule will not have sufficient federalism implications to
warrant the preparation of a federalism assessment. Elimination of
these recordkeeping and reporting requirements will not preempt any
State law or State regulation. No additional costs or burdens would be
imposed on the States as a result of this action, and the States'
ability to discharge traditional State governmental functions would not
be affected by this rulemaking.
Executive Order 12374 (Intergovernmental Review)
Catalog of Federal Domestic Assistance Program Number 20.205,
Highway Planning and Construction. The regulations implementing
Executive Order 12372 regarding intergovernmental consultation of
Federal programs and activities apply to this program.
Paperwork Reduction Act
This action does not contain a collection of information
requirement for purposes of the Paperwork Reduction Act of 1995, 44
U.S.C. 3501-3520. In fact, this rulemaking eliminates two information
collection requirements.
National Environmental Policy Act
The agency has analyzed this action for the purpose of the National
Environmental Policy Act of 1969 (42 U.S.C. 4321-4347) and has
determined that this action would not have any effect on the quality of
the environment.
Regulation Identification Number
A regulation identification 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 contained in the heading of
this document can be used to cross reference this action with the
Unified Agenda.
Lists of Subjects in 23 CFR Part 230
Equal employment opportunity, Grant programs-- transportation,
Highways and roads, Minority businesses, Reporting and recordkeeping
requirements.
Issued on: March 25, 1996.
Rodney E. Slater,
Federal Highway Administrator.
In consideration of the foregoing, the FHWA amends title 23, Code
of Federal Regulations, part 230 as set forth below.
PART 230--EXTERNAL PROGRAMS
1. The authority citation for part 230 is combined at the part
level and revised to read as follows and all other authority citations
which appear throughout part 230 are removed:
Authority: 23 U.S.C. 101, 140, and 315; 42 U.S.C. 2000d et seq.;
49 CFR 1.48 and 60-1.
Sec. 230.121 [Amended]
2. In Sec. 230.121, paragraph (d) is removed and reserved.
Appendices E and F to Subpart A [Removed and reserved]
3. In part 230, subpart A, Appendices E and F are removed and
reserved.
[FR Doc. 96-8159 Filed 4-2-96; 8:45 am]
BILLING CODE 4910-22-P
Complete official Federal Register PDF
FR Doc. 96-8158 Exemptions From Federal Motor Carrier Safety Regulations
[Federal Register Volume 61, Number 65 (Wednesday, April 3, 1996)]
[Rules and Regulations]
[Pages 14677-14680]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-8158]
-----------------------------------------------------------------------
DEPARTMENT OF TRANSPORTATION
49 CFR Parts 383 and 395
RIN 2125-AD83
Exemptions From Federal Motor Carrier Safety Regulations
AGENCY: Federal Highway Administration (FHWA), DOT.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The National Highway System Designation Act of 1995 creates
exemptions from certain requirements of the Federal Motor Carrier
Safety Regulations (FMCSRs) for employers engaged in: The
transportation of agricultural commodities and farm supplies, the
transportation of ground water drilling rigs, the transportation of
construction materials and equipment, the operation of utility service
vehicles, and the operation of snow and ice removal equipment within
the boundaries of an eligible unit of local government. These
exemptions relate to the hours-of-service and the commercial driver's
license requirements of the regulations. This final rule amends the
FMCSRs to conform to these statutory exemptions.
EFFECTIVE DATES: This rule is effective April 3, 1996 except
Sec. 383.3(d)(3) and Secs. 395.1(n) and (o), pertaining to the
transportation of snow and ice removal equipment, construction
materials and equipment, and drivers of utility service vehicles, are
not effective until May 26, 1996.
FOR FURTHER INFORMATION CONTACT: Mr. Robert F. Schultz, Jr., Office of
Motor Carrier Research and Standards, (202) 366-2718, or Ms. Grace
Reidy, Office of the Chief Counsel, (202) 366-6226, Federal Highway
Administration, DOT, 400 Seventh Street, SW., Washington, D.C. 20590.
Office hours are from 7:45 a.m. to 4:15 p.m., e.t., Monday through
Friday, except Federal holidays.
SUPPLEMENTARY INFORMATION:
Background and Notices
On November 28, 1995, the President signed the National Highway
Systems Designation Act of 1995, Pub. L. 104-59, 109 Stat. 568
(1995)(NHS Act). Section 345 of this Act creates five specific
exemptions from certain provisions of the FMCSRs (49 CFR 390.1 et
seq.).
The first exemption applies to drivers transporting agricultural
commodities or farm supplies during planting and harvesting seasons, if
the transportation is limited to the area within a 100 air mile radius
of the source of the commodities or the distribution point for the farm
supplies. These drivers are exempt from the maximum driving and on-duty
time regulations of the FMCSRs.
The second exemption relates to drivers who are primarily involved
in the transportation of ground water drilling rigs. These rigs include
any vehicle, machine, tractor, trailer, semi-trailer, or specialized
mobile equipment propelled or drawn by mechanical power and used on
highways to transport water well field operating equipment, including
water well drilling and pump service rigs equipped to access ground
water. Current regulations forbid drivers from operating CMVs after
they have been on duty a certain number of hours over a 7 or 8 day
span. Specifically, if the employing motor carrier does not operate 7
days a week, the cutoff is 60 hours over a 7-day span; if the employing
motor carrier does operate 7 days a week, the cutoff is either 60 hours
over a 7-day span, or 70 hours over an 8-day span. The water drilling
rig exception in the NHS Act permits these drivers to ``restart the
clock,'' which means that at any point at which the driver is off-duty
for 24 or more consecutive hours, the period of 7 or 8 days ends as of
the beginning of that off-duty period, and the clock restarts for
purposes of computing the 7 or 8 day period when the driver goes on
duty again. Thus, this exemption enables the motor carrier to designate
the time of day at which the period of 7 or 8 days begins. The
definition of ``24-hour period'' in the NHS Act authorizes the carrier
to designate the time of day at which the 24-hour period begins, which
may vary between the various terminals from which drivers are
dispatched.
[[Page 14678]]
The third exemption applies to drivers used primarily in the
transportation of construction materials and equipment, which is
defined as the transportation of construction and pavement materials,
construction equipment, and construction maintenance vehicles. The
driver must be en route to or from an ``active construction site,''
which must be at a stage between initial mobilization of equipment and
materials to the site, and final completion of the construction
project. The construction site must also be within a 50 air-mile radius
of the driver's normal work reporting location, and this exemption does
not apply to the transportation of hazardous materials in a quantity
requiring placarding. This exemption allows these construction drivers
to restart the calculation of a 7 or 8 day period under the hours of
service regulations in the same fashion as provided in the third
exemption.
The fourth exemption applies these same provisions to drivers of
utility service vehicles. In order to qualify as a utility service
vehicle, the vehicle must be operated primarily within the service area
of the utility's subscribers. In addition, it must be used in the
furtherance of repairing, maintaining, or operating any physical
facilities necessary for the delivery of public utility service and
must be engaged in any activity necessarily related to the ultimate
delivery of public utility services to the consumer, including travel
to, from, upon, or between activity sites. The public utility, which
includes those delivering electric, gas, water, sanitary sewer,
telephone, and television service, need not be the actual owner of the
vehicle in question. This exemption likewise enables utility drivers to
restart the calculation of a 7 or 8 day period after the driver has
been off duty for at least 24 hours consecutively.
The fifth and final exemption permits a State to exempt by waiver
the requirement for a commercial driver's license (CDL) for back-up
snow removal drivers employed by an eligible unit of local government.
The vehicle must be operated within the boundaries of a city, town,
borough, county, parish, district, or other unit of local government
created pursuant to State law which has a total population of 3,000 or
less. In addition, the vehicle must be operated by an employee of that
local government for the purpose of removing snow or ice from a roadway
by plowing, sanding, or salting. This waiver may only be granted where
the employee who ordinarily operates the vehicle is unavailable or in
need of additional assistance due to snow emergency. This provision
does not affect the requirement that the customary operator of the
vehicle have a CDL.
For each of the exemptions described above, other than the water
well drilling exemption, the NHS Act provides the Secretary with the
authority to negate or modify the exemption upon a determination, after
a rulemaking proceeding, that the exemption is not in the public
interest and would have a significant adverse impact on the safety of
commercial motor vehicles. The Federal Highway Administration (FHWA)
has decided not to proceed with such a rulemaking proceeding at this
time. Nevertheless, the FHWA is required by the statute to monitor the
safety performance of drivers of vehicles that are subject to an
exemption and report to Congress if a determination is made that public
safety has been adversely affected by one of these exemptions.
The FHWA is investigating the issues surrounding maximum driving
and on-duty time of truck drivers. At the Truck and Bus Summit held in
March 1995, in Kansas City, Missouri, participants representing every
segment of the U.S. trucking industry were assembled by the FHWA. The
number one issue of concern to the participants was driver fatigue. In
addition, the FHWA is also about to complete a multi-year, cooperative
government-industry research effort designed to generate quantitative
information about the impact of fatigue on motor carrier operations.
The project will provide an empirical basis for reevaluating the
restrictions on hours-of-service of CMV drivers.
In addition, the FHWA invited and received comments on the issue of
waiver of the hours of service regulations for those transporting crops
and farm supplies. 59 FR 63322; December 8, 1994. Docket comments were
received from over 175 respondents, almost all of which were in support
of the waiver concept.
Rulemaking Analyses and Notices
The FHWA is amending Parts 383 and 395 of the FMCSRs by proceeding
directly to a final rule. The FHWA finds that prior notice and
opportunity for comment are unnecessary under 5 U.S.C. 553(b)(3)(B) and
that good cause exists to dispense with the 30-day delayed effective
date ordinarily required under 5 U.S.C. 553(d) because these changes
are statutorily mandated. The FHWA has also determined that prior
notice and opportunity for comment are not required under Department of
Transportation's regulatory policies and procedures, as it is
anticipated that such action would not result in the receipt of useful
information.
Executive Order 12866 (Regulatory Planning and Review) and DOT
Regulatory Policies and Procedures
These changes are being made to conform the FHWA's regulations to
statutory exemptions already authorized by section 345 of the NHS Act.
At this point, the FHWA is unable to predict what the impact of these
changes will be. However, pursuant to the obligations imposed upon the
Secretary by the NHS Act, the FHWA intends to monitor the impact of
these changes.
Regulatory Flexibility Act
In compliance with the Regulatory Flexibility Act (5 U.S.C. 601-
612), the FHWA has evaluated the effects of this action on small
entities. This rule merely amends the FMCSRs to conform them to the
exemptions granted in the NHS Act. These exemptions are likely to
lessen the financial burden of complying with the relevant FMCSRs, but
only for limited classes of operations. The FHWA certifies that this
action will not have a significant impact on a substantial number of
small entities.
Executive Order 12612 (Federalism Assessment)
This action has been analyzed in accordance with the principles and
criteria contained in Executive Order 12612, and it has been determined
that this action does not have sufficient federalism implications to
warrant the preparation of a federalism assessment. As provided in
section 345(b) of the NHS Act, these regulatory changes do not preempt
any State laws or regulations concerning the safe operation of
commercial motor vehicles. This action does not impose any additional
cost or burden on any State. In addition, this rule would have no
effect on the States' ability to discharge traditional State
governmental functions.
Executive Order 12372 (Intergovernmental Review)
Catalog of Federal Domestic Assistance Program Number 20.217, Motor
Carrier Safety. The regulations implementing Executive Order 12372
regarding intergovernmental consultation on Federal programs and
activities apply to this program.
Paperwork Reduction Act
This action does not contain a collection of information
requirement
[[Page 14679]]
for purposes of the Paperwork Reduction Act of 1995, 44 U.S.C. 3501-
3520.
National Environmental Policy Act
The agency has analyzed this action for the purpose of the National
Environmental Policy Act of 1969 (42 U.S.C. 4321-4347) and has
determined that this action would not have any effect on the quality of
the environment. Therefore, an environmental impact statement is not
required.
Regulation Identification Number
A regulation identification 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 contained in the heading of
this document can be used to cross reference this action with the
Unified Agenda.
List of Subjects in Parts 383 and 395
Commercial driver's license documents, Commercial motor vehicles,
Driver's hours of service, Highways and roads, Motor carriers licensing
and testing procedures, Motor vehicle safety, Reporting and
recordkeeping requirements.
Issued on: March 26, 1996.
Rodney E. Slater,
Federal Highway Administrator.
In consideration of the foregoing, the FHWA hereby amends title 49,
Code of Federal Regulations, subtitle B, chapter III, subchapter B,
parts 383 and 395 as set forth below:
PART 383--[AMENDED]
1. The authority citation for part 383 is revised to read as
follows:
Authority: 49 U.S.C. 31101 et seq., 31136, and 31502; sec. 345,
Pub. L. 104-59, 109 Stat. 568, 613; and 49 CFR 1.48.
2. Section 383.3(d) is amended by revising the heading and the
introductory paragraph, and by adding a new paragraph (d)(3) to read as
follows:
Sec. 383.3 Applicability.
* * * * *
(d) Exception for farmers, firefighters, emergency response vehicle
drivers, and drivers removing snow and ice. A State may, at its
discretion, exempt individuals identified in paragraphs (d)(1), (d)(2),
and (d)(3) of this section from the requirements of this part. The use
of this waiver is limited to the driver's home State unless there is a
reciprocity agreement with adjoining States.
* * * * *
(3)(i) A driver, employed by an eligible unit of local government,
operating a commercial motor vehicle within the boundaries of that unit
for the purpose of removing snow or ice from a roadway by plowing,
sanding, or salting, if
(A) The properly licensed employee who ordinarily operates a
commercial motor vehicle for these purposes is unable to operate the
vehicle; or
(B) The employing governmental entity determines that a snow or ice
emergency exists that requires additional assistance.
(ii) This exemption shall not preempt State laws and regulations
concerning the safe operation of commercial motor vehicles.
* * * * *
3. Section 383.5 is amended by adding the definition ``Eligible
unit of local government'' in alphabetical order to read as follows:
Sec. 383.5 Definitions.
* * * * *
Eligible unit of local government means a city, town, borough,
county, parish, district, or other public body created by or pursuant
to State law which has a total population of 3,000 individuals or less.
* * * * *
PART 395--[AMENDED]
4. The authority citation for part 395 is revised to read as
follows:
Authority: 49 U.S.C. 31133, 31136, and 31502; sec. 345, Pub.L.
104-59, 109 Stat. 568, 613; and 49 CFR 1.48.
5. Section 395.1 is amended by revising paragraph (a) and by adding
paragraphs (l), (m), (n), and (o) to read as follows:
Sec. 395.1 Scope of rules in this part.
(a) General. (1) The rules in this part apply to all motor carriers
and drivers, except as provided in paragraphs (b) through (n) of this
section.
(2) The exceptions from Federal requirements contained in
paragraphs (l) through (n) do not preempt State laws and regulations
governing the safe operation of commercial motor vehicles.
* * * * *
(l) Agricultural operations. The provisions of Sec. 395.3 shall not
apply to drivers transporting agricultural commodities or farm supplies
for agricultural purposes in a State if such transportation:
(1) Is limited to an area within a 100 air mile radius from the
source of the commodities or the distribution point for the farm
supplies, and
(2) Is conducted during the planting and harvesting seasons within
such State, as determined by the State.
(m) Ground water well drilling operations. In the instance of a
driver of a commercial motor vehicle who is used primarily in the
transportation and operations of a ground water well drilling rig, any
period of 7 or 8 consecutive days may end with the beginning of any
off-duty period of 24 or more successive hours.
(n) Construction materials and equipment. In the instance of a
driver of a commercial motor vehicle who is used primarily in the
transportation of construction materials and equipment, any period of 7
or 8 consecutive days may end with the beginning of any off-duty period
of 24 or more successive hours.
(o) Utility service vehicles. In the instance of a driver of a
utility service vehicle, any period of 7 or 8 consecutive days may end
with the beginning of any off-duty period of 24 or more successive
hours.
6. Section 395.2 is amended by adding three definitions,
alphabetically, to read as follows:
Sec. 395.2 Definitions.
* * * * *
Ground water well drilling rig means any vehicle, machine, tractor,
trailer, semi-trailer, or specialized mobile equipment propelled or
drawn by mechanical power and used on highways to transport water well
field operating equipment, including water well drilling and pump
service rigs equipped to access ground water.
* * * * *
Transportation of construction materials and equipment means the
transportation of construction and pavement materials, construction
equipment, and construction maintenance vehicles, by a driver to or
from an active construction site (a construction site between
mobilization of equipment and materials to the site to the final
completion of the construction project) within a 50 air mile radius of
the normal work reporting location of the driver. This paragraph does
not apply to the transportation of material found by the Secretary to
be hazardous under 49 U.S.C. 5103 in a quantity requiring placarding
under regulations issued to carry out such section.
* * * * *
Utility service vehicle means any commercial motor vehicle:
(1) Used in the furtherance of repairing, maintaining, or operating
any
[[Page 14680]]
structures or any other physical facilities necessary for the delivery
of public utility services, including the furnishing of electric, gas,
water, sanitary sewer, telephone, and television cable or community
antenna service;
(2) While engaged in any activity necessarily related to the
ultimate delivery of such public utility services to consumers,
including travel or movement to, from, upon, or between activity sites
(including occasional travel or movement outside the service area
necessitated by any utility emergency as determined by the utility
provider); and
(3) Except for any occasional emergency use, operated primarily
within the service area of a utility's subscribers or consumers,
without regard to whether the vehicle is owned, leased, or rented by
the utility.
[FR Doc. 96-8158 Filed 4-2-96; 8:45 am]
BILLING CODE 4910-22-P
Complete official Federal Register PDF
FR Doc. 96-8157 Commercial Driver's License Program and Controlled Substances and Alcohol Use and Testing
[Federal Register Volume 61, Number 65 (Wednesday, April 3, 1996)]
[Rules and Regulations]
[Page 14677]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-8157]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF TRANSPORTATION
Federal Highway Administration
49 CFR Parts 382, 383, 390, 391 and 392
[FHWA Docket Nos. MC-92-19 and MC-92-23]
RIN 2125-AD46
Commercial Driver's License Program and Controlled Substances and
Alcohol Use and Testing
AGENCY: Federal Highway Administration (FHWA), DOT.
ACTION: Final rule; technical correction.
-----------------------------------------------------------------------
SUMMARY: This document corrects the final rule on alcohol and drug
testing rules and the regulations implementing the commercial driver's
license program which was published in the issue of March 8, 1996, in
FR Doc. 96-5373 on page 9564. In part 383, a reference to a nonexistent
paragraph was inadvertently inserted and, by this document, is removed.
EFFECTIVE DATE: March 8, 1996.
FOR FURTHER INFORMATION CONTACT: For information regarding program
issues: Office of Motor Carrier Research and Standards, (202) 366-1790,
For information regarding legal issues: Office of the Chief Counsel,
Motor Carrier Law Division, (202)366-0834, Federal Highway
Administration, 400 Seventh Street, SW., Washington, DC 20590. Office
hours are from 7:45 a.m. to 4:15 p.m., e.t., Monday through Friday,
except Federal holidays.
SUPPLEMENTARY INFORMATION: The FHWA hereby corrects 49 CFR part 383 as
published on March 8, 1996, in FR Doc. 96-5373 on page 9564, in the
introductory paragraph of Sec. 383.3(d), by replacing the words ``,
(d)(2), and (d)(3) of this section'' with the words ``and (d)(2) of
this section''.
Authority: 49 U.S.C. 322; 23 U.S.C. 315.
Issued on: March 27, 1996.
Edward V.A. Kussy,
Acting Chief Counsel.
[FR Doc. 96-8157 Filed 4-2-96; 8:45 am]
BILLING CODE 4910-22-P
Complete official Federal Register PDF
FR Doc. 96-8156 Light Truck Average Fuel Economy Standard, Model Year 1998
[Federal Register Volume 61, Number 65 (Wednesday, April 3, 1996)]
[Rules and Regulations]
[Pages 14680-14682]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-8156]
=======================================================================
-----------------------------------------------------------------------
NATIONAL HIGHWAY TRAFFIC SAFETY ADMINISTRATION
49 CFR Part 533
[Docket No. 94-20; Notice 4]
RIN 2127-AF16
Light Truck Average Fuel Economy Standard, Model Year 1998
AGENCY: National Highway Traffic Safety Administration (NHTSA).
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: This final rule establishes the average fuel economy standard
for light trucks manufactured in model year (MY) 1998. The issuance of
the standard is required by statute. Pursuant to section 330 of the
fiscal year (FY) 1996 DOT Appropriations Act, the light truck standard
for MY 1998 is 20.7 mpg.
DATES: The amendment is effective May 3, 1996. The standard applies to
the 1998 model year. Petitions for reconsideration must be submitted
within 45 days of publication.
ADDRESSES: Petitions for reconsideration should be submitted to:
Administrator, National Highway Traffic Safety Administration, 400
Seventh Street SW., Washington, DC 20590.
FOR FURTHER INFORMATION CONTACT: Mr. Otto G. Matheke, III, Office of
Chief Counsel, National Highway Traffic Safety Administration, 400
Seventh Street SW., Washington, DC 20590 (202-366-5263).
SUPPLEMENTARY INFORMATION:
I. Background
In December 1975, during the aftermath of the energy crisis created
by the oil embargo of 1973-74, Congress enacted the Energy Policy and
Conservation Act. Congress included a provision in that Act
establishing an automotive fuel economy regulatory program. That
provision added Title V, ``Improving Automotive Efficiency,'' to the
Motor Vehicle Information and Cost Saving Act. Title V has been amended
and recodified without substantive change as Chapter 329 of Title 49 of
the United States Code. Chapter 329 provides for the issuance of
average fuel economy standards for passenger automobiles and
automobiles that are not passenger automobiles (light trucks).
Section 32902(a) of Chapter 329 states that the Secretary of
Transportation shall prescribe by regulation corporate average fuel
economy (CAFE) standards for light trucks for each model year. That
section also states that ``[e]ach standard shall be the maximum
feasible average fuel economy level that the Secretary decides the
manufacturers can achieve in that model year.'' (The Secretary has
delegated the authority to implement the automotive fuel economy
program to the Administrator of NHTSA. 49 CFR 1.50(f).) Section
32902(f) provides that in determining the maximum feasible average fuel
economy level, NHTSA shall consider four criteria: technological
feasibility, economic practicability, the effect of other motor vehicle
standards of the Government on fuel economy, and the need of the United
States to conserve energy. Pursuant to this authority, the agency has
set light truck CAFE standards through MY 1997. See 49 CFR 533.5(a).
The standard for MY 1997 is 20.7 mpg. 59 FR 16312 (April 6, 1994).
NHTSA began the process of establishing light truck CAFE standards
for model years after MY 1997 by publishing an Advance Notice of
Proposed Rulemaking (ANPRM) in the Federal Register. 59 FR 16324 (April
6, 1994). The ANPRM outlined the agency's intention to set standards
for some or all of model years 1998 to 2006.
Subsequent to reviewing the comments submitted in response to the
ANPRM, the agency decided to defer rulemaking for MY's 1999-2006. NHTSA
thereafter issued a notice of proposed rulemaking (NPRM) limited to MY
1998, which proposed to set the light truck CAFE standard for that year
at 20.7 mpg. 61 FR 145 (January 3, 1996). On November 15, 1995, the
Department of Transportation and Related Agencies Appropriations Act
for Fiscal Year 1996 was enacted. Pub. L. 104-50. Section 330 of that
Act provides:
None of the funds in this Act shall be available to prepare,
propose, or promulgate any regulations * * * prescribing corporate
average fuel economy standards for automobiles * * * in any model
year that differs from standards promulgated for such automobiles
prior to enactment of this section.
Because light truck CAFE standards must be set no later than
eighteen months before the beginning of the model year in question, the
deadline for NHTSA to set the MY 1998 standard is approximately April
1, 1996. However, the agency cannot promulgate such a standard without
the expenditure of funds, and it may not spend any funds in violation
of the terms of section 330 of the FY 1996 Appropriations Act.
Therefore, to ascertain the limits of its authority to promulgate CAFE
standards during FY 1996, NHTSA must interpret the phrase ``differs
from standards promulgated for such automobiles prior to enactment of
this section.''
In the agency's view, the most compelling meaning of the phrase is
to preclude the expenditure of funds to adopt a CAFE standard for any
model year at any level other than the level of the CAFE standards
previously established for MY 1997; i.e., 20.7 mpg for light trucks and
27.5 mpg for passenger cars.
The agency examined the legislative history of section 330 to seek
additional insight into Congressional intent. Section 330 was reported
out of the House Committee on Appropriations in its enacted form as
part of H.R. 2002. The original Committee print of the House Report to
accompany H.R. 2002 stated, at page 112, that the section precluded
NHTSA from prescribing CAFE standards that ``differ from those
previously enacted:''
The Committee has adopted a general provision (Sec. 330) that
prohibits NHTSA or the Department from prescribing corporate average
fuel economy standards for automobiles that differ from those
previously enacted.
This language was modified somewhat in the final version of the
House report to accompany H.R. 2002, but repeated the command that CAFE
standards promulgated in FY 1996 should not ``differ from those
previously enacted.'' The report stated:
The Committee has adopted a general provision (Sec. 330) that
prohibits funds to be used to prepare, prescribe or promulgate
corporate average fuel economy standards for automobiles that differ
from those previously enacted. The limitation does not preclude the
Secretary of Transportation, in order to meet
[[Page 14681]]
lead time requirements of the law, from preparing, proposing and
issuing a CAFE standard for model year 1998 automobiles that is
identical to the CAFE standard for such automobiles for model year
1997.
H.R. Rep. 104-177, at 113.
The addition of the second sentence to this report language
suggests that the Committee wanted to clarify that, regardless of what
the maximum feasible average fuel economy level might be for MY 1998
light trucks, NHTSA was not precluded from setting the CAFE standard
for such automobiles at a level ``identical'' to the MY 1997 level of
20.7 mpg. There is no indication that the Committee intended to
authorize the MY 1998 light truck standard to be set at any other
level.
The next relevant item of legislative history is the remarks during
the House floor debate on H.R. 2002 by Congressman DeLay, who
originally offered this provision during consideration of the bill by
the Transportation Subcommittee of the Appropriations Committee.
Congressman DeLay began by describing the section as imposing ``a 1-
year freeze on the ability of NHTSA to increase the CAFE standards for
passenger cars and light trucks and vans.'' He added:
[I]t was my intent that NHTSA would withhold any further action
directed toward increasing CAFE standards, and that the CAFE
standards for light trucks and vans for the 1998 model year, which
must be issued during fiscal 1996 to meet industry's lead time
requirements, should be identical to the standard that is currently
in effect for those vehicles for the 1997 model year. This intent is
clearly stated in the committee report which accompanies the
legislation.
141 Cong. Rec. H7605 (daily ed. July 25, 1995) (emphasis supplied).
These comments, offered by the sponsor of the provision in
question, clearly reflect Congressman DeLay's intent that NHTSA should
set the MY 1998 light truck standard ``identical to'' the 20.7 mpg
level in effect for MY 1997, without regard to any determination the
agency might otherwise have reached with respect to the maximum
feasible average fuel economy level for MY 1998. His remarks also
characterize the Committee report as reflecting the same intent.
In its original consideration of H.R. 2002, the Senate deleted
section 330. See S. Rep. No. 104-126, at 145. However, the provision
was restored by the Conference Committee, which described its action as
follows:
Amendment No. 155: Restores House language deleted by the Senate
that prohibits the use of funds to prepare, propose or promulgate
any regulations that prescribe changes in the corporate average fuel
economy standards for automobiles.
H.R. Rep. 104-286, at 73.
Numerous courts have held that, compared to other items of
legislative history, the Conference Report is generally the most
authoritative source of Congressional intent. In this case, that report
unambiguously describes section 330 as prohibiting the use of FY 1996
funds to promulgate ``any regulations that prescribe changes'' in CAFE
standards.
As described above, each of the relevant items of legislative
history supports the agency's view that section 330 precludes NHTSA
from preparing, proposing, or issuing any CAFE standard that is not
identical to those previously established for MY 1997. Accordingly,
NHTSA is setting the MY 1998 light truck CAFE standard at the MY 1997
level of 20.7 mpg.
NHTSA recognizes that setting the MY 1998 standard at 20.7 mpg
without making a determination as to the maximum feasible average fuel
economy level for that model year could be inconsistent with the second
sentence of 49 U.S.C. Sec. 32902(a), which states that ``[e]ach [light
truck] standard shall be the maximum feasible average fuel economy
level that the Secretary decides the manufacturers can achieve in that
model year.''
However, the only other possible interpretation of the language
``differs from standards promulgated for such automobiles prior to
enactment of this section'' in section 330 is that NHTSA may issue CAFE
standards at a level equal to that of any previously promulgated
standard. Under this interpretation, during FY 1996 NHTSA would be able
to set the ``combined'' (i.e., two-wheel drive and four-wheel drive)
light truck CAFE standard for MY 1998 (and for future model years) at
one of 10 specific levels as follows (see 49 CFR 533.5(a)):
------------------------------------------------------------------------
Combined Standard (MPG) Model Years
------------------------------------------------------------------------
17.5.................................................... 1982
19.0.................................................... 1983
19.5.................................................... 1985
20.0.................................................... 1984, 1986,
1990
20.2.................................................... 1991, 1992
20.4.................................................... 1993
20.5.................................................... 1987, 1988,
1989, 1994
20.6.................................................... 1995
20.7.................................................... 1996, 1997
21.0.................................................... *1985
------------------------------------------------------------------------
*In model year 1985, the combined standard was originally promulgated as
21.0 mpg before it was amended to 19.5 mpg.
Similarly, under this interpretation, the agency would be
authorized to amend the passenger car CAFE standard to one of seven
specific levels, ranging from 18.0 mpg to 27.0 mpg, but to no points in
between. See 49 CFR 531.5(a).
Such an interpretation, however, could also conflict with the
``maximum feasible'' provision of 49 U.S.C. Sec. 32902(a) because the
maximum feasible level calculated by NHTSA under the criteria it has
traditionally applied might not be identical to one of the previously
promulgated standards. Moreover, those previously promulgated standards
include 21.0 mpg, a level in excess of the MY 1997 standard, which
would clearly contravene the intent, expressed in every item of
relevant legislative history, to ``freeze'' NHTSA's ability to increase
the CAFE standards above the MY 1997 level of 20.7 mpg.
Finally, it is inherently illogical to assume that Congress
intended to limit so arbitrarily the possible levels at which NHTSA can
set future CAFE standards; i.e., that previously promulgated standards
of 20.0 mpg, 20.2 mpg, or 20.4 mpg are permissible, but 20.1 mpg and
20.3 mpg are not permissible, even if one of them were determined to be
the maximum feasible level. In contrast, the interpretation adopted by
the agency in this notice is logical in the context of the
Appropriations Act restrictions. ``Freezing'' the MY 1998 standard at
20.7 mpg comports with Congressman DeLay's declaration that ``[t]he
purpose of Section 330 is to establish a pause in this rulemaking
process, to give the Congress an opportunity to review the CAFE
program,'' 141 Cong. Rec. H7605 (daily ed. July 25, 1995), and the
expectation that the established standard for MY 1997 of 20.7 mpg would
not be an unreasonable level for the industry to achieve in MY 1998.
The agency is of course aware that repeals by implication of
substantive statutory provisions are generally disfavored, particularly
where the claimed repeal rests upon language in an appropriations act.
However, as demonstrated above, both of the theoretically plausible
textual readings of the 1996 DOT Appropriations Act language could
conflict with the ``maximum feasible'' requirement, so the agency must
choose the one which is most consistent with the legislative intent
expressed in the legislative history.
Further, under the present circumstances, where issuance of a light
truck standard at a level other than 20.7 mpg is prohibited by a recent
Act of Congress, the only other alternative would be to decline to
issue any light truck standard at all for MY 1998. That course of
action would also constitute a ``repeal'' of the statutory duty set
forth in the first sentence of section 32902(a)
[[Page 14682]]
to issue annual light truck CAFE standards. It would also do more
violence to the statutory scheme of Chapter 329 than the establishment
of a 20.7 mpg standard for MY 1998. Finally, failure to set any
standard would conflict with Congress's express direction in the House
Committee report that NHTSA not be precluded ``from preparing,
proposing and issuing a CAFE standard for model year 1998 automobiles
that is identical to the CAFE standard for such automobiles for model
year 1997.''
II. Impact Analyses
A. Economic Impacts
The agency has not prepared a Final Regulatory Impact Analysis
because of the restrictions imposed by Section 330 of the FY 1996 DOT
Appropriations Act. The rule was reviewed by the Office of Management
and Budget under Executive Order 12866 and is considered significant
under the Department's regulatory procedures.
B. Environmental Impacts
NHTSA has not conducted an evaluation of the impacts of this action
under the National Environmental Policy Act. There is no requirement
for such an evaluation where Congress has eliminated the agency's
discretion by precluding any action other than the one announced in
this notice.
C. Impacts on Small Entities
NHTSA has not conducted an evaluation of this action pursuant to
the Regulatory Flexibility Act. As Congress has eliminated the agency's
discretion by precluding any action other than the one taken in this
notice, such an evaluation is unnecessary. Past evaluations indicate,
however, that few, if any, light truck manufacturers would have been
classified as a ``small business'' under the Regulatory Flexibility
Act.
D. Impact of Federalism
This action has been not been analyzed in accordance with the
principles and criteria contained in Executive Order 12612. The
preparation of a Federalism Assessment is not required where Congress
has precluded any action other than the one published in this notice.
As a historical matter, prior light truck standards have not had
sufficient Federalism implications to warrant the preparation of a
Federalism Assessment.
E. Department of Energy Review
In accordance with section 49 U.S.C. Sec. 32902(j), NHTSA submitted
this final rule to the Department of Energy for review. That Department
made no unaccommodated comments.
III. Conclusion
Based on the foregoing, the agency is establishing a combined
average fuel economy standard for non-passenger automobiles (light
trucks) for MY 1998 at 20.7 mpg.
List of Subjects in 49 CFR Part 533
49 CFR Part 533
Energy conservation, Motor vehicles.
PART 533--[AMENDED]
In consideration of the foregoing, 49 CFR Part 533 is amended as
follows:
1. The authority citation for part 533 is revised to read as
follows:
Authority: 49 U.S.C. 32902; delegation of authority at 49 CFR
1.50.
2. Section 533.5(a) is amended by revising Table IV to read as
follows:
Sec. 533.5 Requirements.
* * * * *
Table IV
------------------------------------------------------------------------
Model year Standard
------------------------------------------------------------------------
1996......................................................... 20.7
1997......................................................... 20.7
1998......................................................... 20.7
------------------------------------------------------------------------
* * * * *
Issued On: March 29, 1996.
Ricardo Martinez,
Administrator.
[FR Doc. 96-8156 Filed 3-29-96; 3:38 pm]
BILLING CODE 4910-59-P
Complete official Federal Register PDF
FR Doc. 96-8145 Pesticide Tolerance for Tribenuron Methyl
[Federal Register Volume 61, Number 65 (Wednesday, April 3, 1996)]
[Rules and Regulations]
[Pages 14637-14639]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-8145]
40 CFR Part 60
CFR Correction
In title 40 of the Code of Federal Regulations, part 60, revised as
of July 1, 1995, make the following correction:
Sec. 60.62 [Corrected]
On page 127, in Sec. 60.62 remove paragraph (a)(3).
BILLING CODE 1505-01-D
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR PART 180
[PP 4F4322/R2217; FRL-5356-4]
RIN 2070-AB78
Pesticide Tolerance for Tribenuron Methyl
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final Rule.
-----------------------------------------------------------------------
SUMMARY: This rule establishes tolerances for residues of the herbicide
tribenuron methyl (methyl-2[[[[N-(4-methoxy-6-methyl-1,3,5-triazin-2-
yl) methylamino] carbonyl]amino]sulfonyl] benzoate) in or on the raw
agricultural commodities (RACs) hay of grass forage, fodder and hay
group (excluding Bermudagrass) at 0.10 ppm; and forage grass forage,
fodder and hay group (excluding Bermudagrass) at 0.10 ppm. This
regulation to establish a maximum permissible level for residues of
tribenuron methyl was requested in a petition submitted by E.I. DuPont
de Nemours Company, Inc. Agricultural Products, Walker Mill, Barley
Mill Plaza, P.O. Box 80038. Wilmington, DE 19880-0038.
EFFECTIVE DATE: April 3, 1996.
ADDRESSES: Written objections and hearing requests, identified by the
docket number, [PP 4F4322/R2217], may be submitted to: Hearing Clerk
(1900), Environmental Protection Agency, Rm. M3708, 401 M St., SW.,
Washington, DC 20460. A copy of any objections and hearing requests
filed with the Hearing Clerk should be identified by the docket 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 copies of objections and hearing requests to Rm. 1132,
CM #2, 1921 Jefferson Davis Hwy., Arlington, VA 22202. Fees
accompanying objections shall be labeled ``Tolerance Petition Fees''
and forwarded to: EPA Headquarters Accounting Operations Branch, OPP
(Tolerance Fees), P.O. Box 360277M, Pittsburgh, PA 15251. An electronic
copy of objections and hearing requests filed with the Hearing Clerk
may be submitted to OPP by sending electronic mail (e-mail) to: opp-
[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 4F4322/R2217]. 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 in the SUPPLEMENTARY
INFORMATION section of this document.
FOR FURTHER INFORMATION CONTACT: By mail: Joanne Miller, Product
Manager (23) Registration Division (7505C), Office of Pesticide
Programs. Environmental Protection Agency, 401 M St. SW., Washington,
DC 20460. Office location and telephone number: Rm. 237, CM #2, 1921
Jefferson Davis Highway, Arlington, VA 22202, 703-305-6224.
SUPPLEMENTARY INFORMATION: EPA issued a notice of filing, published in
the Federal Register of July 13, l994 (59 FR 35719), which announced
that DuPont, Agricultural Products, Walker's Mill, Barley Mill Plaza
P.O. Box 80038, Wilmington, DE had submitted a pesticide petition, PP
4F4322, to EPA requesting that the Administrator, pursuant to section
408(d) of the Federal Food, Drug, and Cosmetic Act (FFDCA), 21 U.S.C.
346a(d), establish tolerances for combined residues of the herbicide
tribenuron methyl (methyl-2[[[[N-(4-methoxy-6-methyl 1,3,5-triazin-2-
yl) methylamino] carbonyl]amino]sulfonyl]benzoate in or on grass, seed;
grass seed straw; grass, seed cleanings (screenings) at 0.04 ppm. A
second notice of filing was issued on February 1, l996, published in
the Federal Register (61 FR 3696), which announced that DuPont had
amended the petition by revising the requested tolerances to read: in
or on the raw agricultural commodities hay of grass forage, fodder and
hay group (excluding Bermudagrass) at 0.10 ppm; forage of grass forage,
fodder and hay group (excluding Bermudagrass) at 0.10 ppm and forage
regrowth at 0.10 ppm. The analytical method for determining residues is
high performance liquid
[[Page 14638]]
chromatography with photo-conductivity detection.
There were no comments received in response to the notices of
filing. The scientific data submitted in the petition and other
relevant material have been evaluated. The toxicological data
considered in support of the proposed tolerances include:
1. The following acute studies with tribenuron methyl (DPX-L5300):
Acute Oral, Rat: LD50 >5,000 mg/kg, Toxicity Category IV.
Acute Dermal, Rabbit: LC50 >2000 mg/kg, Toxicity Category
IV.
Acute Inhalation, Rat: >6.7 mg/L/4hr, Toxicity Category IV.
Primary Eye Irritation, Rabbit: Toxicity Category IV.
Primary Dermal Irritation, Guinea Pig: Toxicity Category IV.
Dermal Sensitiation, Guinea Pig: nonsensitizing.
2. A 3-month feeding study, Rat: No-observed-effect-level (NOEL) =
7/8 mg/kg/day and Lowest effect level (LEL) = 118/135 mg/kg/day.
Toxicity observed: decreased body weight gain, food consumption and
food efficiency; decreased absolute heart, liver, and kidney weights;
increased relative brain, heart, liver, kidney, testes, and spleen
weights; decreased serum glucose and globulin; no histopathologic
lesions; likely cachexia.
3. A 3-month feeding study, Dog: NOEL = 73.3/78.0 mg/kg/day (HDT).
4. A 28-day dermal, Rabbit; The limit dose, 1,000 mg/kg/day,
resulted in serious toxicity and death, NOEL and LEL could not be
defined. Toxicity included treatment site lesions, hypokinesia,
decreased body weights and food consumption, and kidney pathology, but
the cause of death could not be determined. Although the study was Core
Supplementary, another study is not needed. Worker expsure is expected
to be 4 to 5 orders of magnitude less than the limit dose.
5. Chronic feeding, Dog: NOEL (females) = 0.79 mg/kg/day, NOEL
(males) = 8.16 mg/kg/day; LEL (males) = 8.18 mg/kg/day, with elevated
serum bilirubin, AST, and urinary volume, and LEL (females) = 52.02 mg/
kg/day with increased serum creatinine, bilirubin, AST, and globulin,
decreased body weight gain of 18.2%.
6. Carcinogenicity, Mouse: NOEL (males) = 3 mg/kg/day and LEL
(males) = 30 mg/kg/day, with bilateral seminiferous degeneration and
oligospermia. Although frank toxicity was not observed in the females,
Health Effects Division (HED) peer review judged the dose levels to be
adequate. There was no evidence of carcinogenicity.
7. Developmental toxicity, Rat: Maternal NOEL = 20 mg/kg/day;
Maternal LEL = 125 mg/kg/day, with decreased maternal body weight gain
and food consumption; Developmental NOEL = 20 mg/kg/day; Developmental
LEL = 125 mg/kg/day, with decreased body weight; at 500 mg/kg/day (HDT)
there were increased resorptions, fetal deaths, and incomplete
ossification.
8. Developmental toxicity, Rabbit: Maternal NOEL = 20 mg/kg/day,
Maternal LEL = 80 mg/kg/day (HDT - decreased food consumption,
increased abortions); Developmental NOEL = 20 mg/kg/day, Development
LEL = 80 mg/kg/day (HDT - 10% decrease in body weight compared to
controls, not statistically significant). Abortions were increased at
89 mg/kg/day. No terata were observed.
9. 2-generation reproduction, Rat: Paternal NOEL = 2.0 mg/kg/day,
Paternal LEL = 21.0 mg/kg/day, with decreased body weight gain in F1a
adult females; Reproductive NOEL = 2.5 mg/kg/day, Reproductive LEL = 25
mg/kg/day, with decreased body weight gain during lactation for F1b and
F2b pups.
10. Chronic feeding/carcinogenicity, Rat: NOEL = 0.95/1.2 mg/kg/
day, LEL = 10/13 mg/kg/day, with decreased body weight gain in both
sexes. Statistically significant increase in mammary gland
adenocarcinomas in female rats at 76 mg/kg/day, HDT. Health Effects
Division Peer Review Committee classified tribenuron methyl a Category
C (possible human carcinogen) under EPA's cancer assessment guidelines.
11. Gene mutation: Ames Assay: Negative for Salmonella strains
TA97, TA98, TA100 and TA1535 with and without metabolic activation.
12. Structural chromosome: Micronucleus Assay in Mouse Bone Marrow.
Negative at a cytotoxic dose. In vivo Cytogenetic Assay in Rat.
Negative.
13. Other genotoxic effects: In vitro Point Mutation in CHO Cells.
Negative.
14. Unscheduled DNA synthesis in rats. Negative.
15. Metabolism: Rats given a single dose of 20 or 1,800 mg/kg
excreted 99% or 97%, respectively, of radiolabel within 96 hours. The
major route of excretion is the urine (2 to 4 times the amount excreted
in feces). No more than 1% of radiolabel was found in any one tissue or
organ 7 days. Major metabolites in the urine and feces included
metsulfuron methyl, saccharin, and O-dimethyl triazine amine. The two
major metabolic routes are the demethylation of the carbamoyl methyl
group and the hydrolysis of the carbamate moiety.
16. Estrogenic Activity in Rats: Weak estrogenic activity was
observed in female rats.
The Reference Dose (RfD) is established at 0.008 mg/kg/day, based
on the 1 year dog feeding study NOEL of 0.79 mg/kg/day and an
uncertainty factor of 100. The NOEL is taken from a 1 year feeding
study in dogs which demonstrated as an effect elevated serum bilirubin
and AST levels. The result from the EPA Dietary Risk Evaluation System
for chronic analysis of dietary risk from all raw agricultural
commodities (RACs) for which tolerances have been established (40 CFR
180.451) was published (FRL-4759-4) in the Federal Register (59 FR
17755, April 14, l994). Based on the information published the
Theoretical Maximum Residue Contribution (TMRC) for the general
population is now estimated to be 7.8 x 10-5 mg/kg bwt/day, or
1% of the RfD (viz. 0.97). The addition of forage and hay of grasses
associated with the use of tribenuron methyl in the culture of grass
seeds in the states of Washington, Oregon and Idaho under a regional
registration will not increase the risk by more than a fraction of 1%,
because of the low potential for transfer of residues of tribenuron
methyl in ruminants. In a lactating goat study with labeled tribenuron
methyl at a level of 6.7 ppm there was a total of 0.5% of the
administered dose found in the assayed tissues and organs. Based on
this low potential for transfer of residues to tissues, the Agency has
concluded that feeding studies and animal tolerances for tribenuron
methyl are not required. The proposed tolerances for grass RACs are at
the same level as established for barley, oats, and wheat straw in
ruminant diets, the proposed tolerances for the grass RACs will not
increase the dietary burden for residues of tribenuron methyl in
ruminants. Therefore no tolerances are needed for secondary residues in
animal tissues and in milk. There are no human dietary RACs associated
with the proposed registration of tribenuron methyl for use in the
production of grass seed.
Tribenuron methyl is considered a class C carcinogen with no
Q* established for quantification of potency. EPA considers the
cancer risk from exposure to tribenuron methyl from use as registered
under the Federal Insecticide, Fungicide and Rodenticide Act as amended
to be negligible.
The petitioner requested a petition for tolerances with regional
registration based on the claim that the pesticide would not be used in
grass seed production areas other than in the state of Washington,
Oregon, and Idaho,
[[Page 14639]]
because of the culture practices in those state. Residue chemistry data
supporting this regulatory action were limited to data from the Pacific
Northwestern states mentioned above.
An adequate analytical method, high performance liquid
chromatography with photo-conductivity detection, is available for
enforcement purposes.
There are presently no actions pending against the continued
registration of this chemical. The pesticide is considered useful for
the purpose for which the tolerances are being sought.
Based on the information and data considered, the Agency has
determined that the tolerances established by amending 40 CFR 180.451
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 to the regulation and may also request a hearing on
those objections. Objections and hearing requests must be filed 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 tht the material
submitted shows the following: There is genuine and substantial issue
of fact; there is a reasonable possibility that available evidence
identified by the requestor would, if established, resolve one or more
of such issues in favor of the requestor, taking into account
uncontested claims or facts to the contrary; and resolution of the
factual issue(s) in the manner sought by the requestor would be
adequate to justify the action requested (40 CFR 178.32).
EPA has established a record for this rulemaking under docket
number [PP-4F4322/R2217] (including any comments and data submitted
electronically). 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.
Electronic comments may be sent directly to EPA at:
[email protected].
Electronic comments must be submitted as an ASCII file avoiding the
use of special characters and any form of encryption.
The official record for this rulemaking, as well as the public
version, as described above will be kept in paper form. Accordingly,
EPA will transfer any copies of 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 comments submitted directly in writing. The
official rulemaking record is the paper record maintained at the
Virginia address in ``ADDRESSES'' at the beginning of this document.
Under Executive Order 12866 (58 FR 51735, Oct. 4, 1993), the Agency
must determine whether the regulatory action is ``significant'' and
therefore subject to all the requirements of the Executive Order (i.e.,
Regulatory Impact Analysis, review by the Office of Management and
Budget (OMB)). Under section 3(f), the order defines ``significant'' as
those actions likely to lead to a rule (1) having an annual effect on
the economy of $100 million or more, or adversely and materially
affecting a sector of the economy, productivity, competition, jobs, the
environment, public health or safety, or State, local or tribal
governments or communities (also known as ``economically
significant''); (2) creating serious inconsistency or otherwise
interfering with an action taken or planned by another agency; (3)
materially altering the budgetary impacts of entitlement, grants, user
fees, or loan programs; or (4) raising novel legal or policy issues
arising out of legal mandates, the President's priorities, or the
principles set forth in this Executive Order.
Pursuant to the terms of this Executive Order, EPA has determined
that this rule is not ``significant'' and is therefore not subject to
OMB review.
Pursuant to the requirements of the Regulatory Flexibility Act
(Pub. L. 96-354, 94 Stat. 1164, 5 U.S.C. 601-612), the Administrator
has determined that regulations establishing new tolerances or raising
tolerance levels or establishing exemptions from tolerance requirements
do not have a significant economic impact on a substantial number of
small entities. A certification statement to this effect was published
in the Federal Register of May 4, 1981 (46 FR 24950).
List of Subjects in 40 CFR Part 180
Environmental protection, Administrative practice and procedure,
Agricultural commodities, Pesticides and pests, Reporting and
recordkeeping requirements.
Dated: March 22, 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. 180.451 by revising the section heading to read as set
forth below, designating the existing text as paragraph (a), and by
adding a new paragraph (b), to read as follows:
Sec. 180.451 Tribenuron methyl; tolerances for residues.
(a) * * *
(b) Tolerances with regional registration, as defined in
Sec. 180.1(n) are established for residues of the herbicide tribenuron
methyl (methyl-2-[[[[N-(4-methoxy-6-methyl-1,3,5- triazin-2-yl)
methylamino] carbonyl]amino]sulfonyl]benzoate) in or on the following
raw agricultural commodities:
------------------------------------------------------------------------
Parts
Commodity per
million
------------------------------------------------------------------------
Grass forage, fodder and hay group (except Bermudagrass);
forage........................................................ 0.10
Grass forage, fodder and hay group (except Bermudagrass); hay.. 0.10
------------------------------------------------------------------------
[FR Doc. 96-8145 Filed 4-2-96; 8:45 am]
BILLING CODE 6560-50-F
Complete official Federal Register PDF
FR Doc. 96-8129 Office of the Assistant Secretary for Housing-Federal Housing Commissioner; Mortgage Broker Fee Disclosure Rule: Notice of Next Meetings of Negotiated Rulemaking Advisory Committee
[Federal Register Volume 61, Number 65 (Wednesday, April 3, 1996)]
[Rules and Regulations]
[Pages 14616-14617]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-8129]
=======================================================================
-----------------------------------------------------------------------
[[Page 14617]]
DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT
24 CFR Part 3500
[Docket No. FR-3780-N-06]
RIN 2502-AG40
Office of the Assistant Secretary for Housing-Federal Housing
Commissioner; Mortgage Broker Fee Disclosure Rule: Notice of Next
Meetings of Negotiated Rulemaking Advisory Committee
AGENCY: Office of the Assistant Secretary for Housing-Federal Housing
Commissioner, HUD.
ACTION: Notice of committee meeting.
-----------------------------------------------------------------------
SUMMARY: The Department has established a Negotiated Rulemaking
Advisory Committee to address certain issues concerning indirect
payments to mortgage brokers and certain other mortgage originators
(retail lenders) and volume-based compensation. This notice announces
the time and place for the next meeting of the committee, which is open
to the public.
DATES: The next meeting of the committee will be on April 8-9, 1996. On
Monday, April 8, the meeting will start at 9:00 a.m. and will end at
5:00 p.m., and on Tuesday, April 9, the meeting will start at 9:00 a.m.
and run until approximately 3:30 p.m. An additional meeting has been
scheduled for May 20-21, 1996, in Washington, D.C.
ADDRESSES: The next meeting of the committee will be held in the
Headquarters of the National Association of Home Builders, 15th and
``M'' Streets, N.W., Washington, D.C. 20005 (Auditorium 1; for more
information, please direct inquiries to the contact listed under the
heading ``For Further Information Contact,'' below). For information on
the location in Washington, D.C., of the May 20-21, 1996, meeting,
please direct inquiries to the contact listed under the heading For
Further Information Contact, below. These meetings are open to the
public, with limited seating available on a first-come, first-served
basis.
FOR FURTHER INFORMATION CONTACT: David R. Williamson, Director, RESPA
Enforcement Unit, Department of Housing and Urban Development, Room
5241, 451 Seventh Street, S.W., Washington, D.C. 20410-0500; telephone
(202) 708-4560 (this is not a toll-free number); e-mail through
Internet at [email protected] (use underscore
characters). Persons who are hearing- or speech-impaired may access the
above phone number by calling the Federal Information Relay Service at
1-800-877-TDDY (1-800-877-8339).
SUPPLEMENTARY INFORMATION: On December 8, 1995 (60 FR 63008), HUD
published a notice announcing the establishment and first meeting of
the Negotiated Rulemaking Advisory Committee on Mortgage Broker
Disclosures, to discuss and negotiate a proposed rule on the treatment
under RESPA, including disclosure requirements, of indirect payments to
retail lenders and of volume-based compensation to mortgage brokers. In
a notice published on February 20, 1996 (61 FR 6334), the Department
announced it would publish notice of changes in the schedule of
subsequent meetings as far in advance of the meetings as possible.
Because the location of the next meeting of the committee has been
changed, the Department is publishing this notice.
Therefore, the next meeting of the committee will be on April 8-9,
1996, and will be held in the Headquarters of the National Association
of Home Builders, 15th and ``M'' Streets, N.W., Washington, D.C. 20005.
In addition, the committee has agreed to meet on May 20-21, 1996, in
Washington, D.C. For more information of the location of these
meetings, please direct inquiries to the contact listed under the
heading For Further Information Contact, above. These meetings are open
to the public, with limited seating available on a first-come, first-
served basis.
Authority: 42 U.S.C. 1437g, 3535(d).
Dated: March 27, 1996.
Nicolas P. Retsinas,
Assistant Secretary for Housing-Federal Housing Commissioner.
[FR Doc. 96-8129 Filed 3-29-96; 12:57 pm]
BILLING CODE 4210-27-P
Complete official Federal Register PDF
FR Doc. 96-8126 Changes in Flood Elevation Determinations
[Federal Register Volume 61, Number 65 (Wednesday, April 3, 1996)]
[Rules and Regulations]
[Pages 14661-14665]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-8126]
-----------------------------------------------------------------------
FEDERAL EMERGENCY MANAGEMENT AGENCY
44 CFR Part 65
Changes in Flood Elevation Determinations
AGENCY: Federal Emergency Management Agency (FEMA).
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: Modified base (1% annual chance) flood elevations are
finalized for the communities listed below. These modified elevations
will be used to calculate flood insurance premium rates for new
buildings and their contents.
EFFECTIVE DATE: The effective dates for these modified base flood
elevations are indicated on the following table and revise the Flood
Insurance Rate Map(s) in effect for each listed community prior to this
date.
ADDRESSES: The modified base flood elevations for each community are
available for inspection at the office of the Chief Executive Officer
of each community. The respective addresses are listed in the following
table.
FOR FURTHER INFORMATION CONTACT: Michael K. Buckley, P.E., Chief,
Hazard Identification Branch, Mitigation Directorate, 500 C Street, SW,
Washington, DC 20472, (202) 646-2756.
SUPPLEMENTARY INFORMATION: The Federal Emergency Management Agency
makes the final determinations listed below of the final determinations
of modified base flood elevations for each community listed. These
modified elevations have been published in newspapers of local
circulation and ninety (90) days have elapsed since that publication.
The Acting Associate Director has resolved any appeals resulting from
this notification.
The modified base flood elevations are not listed for each
community in this notice. However, this rule includes the address of
the Chief Executive Officer of the community where the modified base
flood elevation determinations are available for inspection.
The modifications are made pursuant to Section 206 of the Flood
Disaster Protection Act of 1973, 42 U.S.C. 4105, and are in accordance
with the National Flood Insurance Act of 1968, 42 U.S.C. 4001 et seq.,
and with 44 CFR Part 65.
For rating purposes, the currently effective community number is
shown and must be used for all new policies and renewals.
The modified base flood elevations are the basis for the floodplain
management measures that the community is required to either adopt or
to show evidence of being already in effect in order to qualify or to
remain qualified for participation in the National Flood Insurance
Program (NFIP).
These modified elevations, together with the floodplain management
criteria required by 44 CFR 60.3, are the minimum that are required.
They should not be construed to mean that
[[Page 14662]]
the community must change any existing ordinances that are more
stringent in their floodplain management requirements. The community
may at any time enact stricter requirements of its own, or pursuant to
policies established by other Federal, State, or regional entities.
These modified elevations are used to meet the floodplain
management requirements of the NFIP and are also used to calculate the
appropriate flood insurance premium rates for new buildings built after
these elevations are made final, and for the contents in these
buildings.
The changes in base flood elevations are in accordance with 44 CFR
65.4.
National Environmental Policy Act. This rule is categorically
excluded from the requirements of 44 CFR Part 10, Environmental
Consideration. No environmental impact assessment has been prepared.
Regulatory Flexibility Act. The Acting Associate Director,
Mitigation Directorate, certifies that this rule is exempt from the
requirements of the Regulatory Flexibility Act because modified base
flood elevations are required by the Flood Disaster Protection Act of
1973, 42 U.S.C. 4105, and are required to maintain community
eligibility in the NFIP. No regulatory flexibility analysis has been
prepared.
Regulatory Classification. This final rule is not a significant
regulatory action under the criteria of Section 3(f) of Executive Order
12866 of September 30, 1993, Regulatory Planning and Review, 58 FR
51735.
Executive Order 12612, Federalism. This rule involves no policies
that have federalism implications under Executive Order 12612,
Federalism, dated October 26, 1987.
Executive Order 12778, Civil Justice Reform. This rule meets the
applicable standards of Section 2(b)(2) of Executive Order 12778.
List of Subjects in 44 CFR Part 65
Flood insurance, Floodplains, Reporting and recordkeeping
requirements.
Accordingly, 44 CFR Part 65 is amended to read as follows:
PART 65--[AMENDED]
1. The authority citation for Part 65 continues to read as follows:
Authority: 42 U.S.C. 4001 et seq.; Reorganization Plan No. 3 of
1978, 3 CFR, 1978 Comp., p. 329; E.O. 12127, 44 FR 19367, 3 CFR,
1979 Comp., p. 376.
Sec. 65.4 [Amended]
2. The tables published under the authority of Sec. 65.4 are
amended as follows:
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Dates and Name of Newspaper Where Chief Executive Community
States and County Location Notice Was Published Officer of Community Effective Date of Modification Number
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
California: Ventura (FEMA Docket No. City of Camarillo.................... October 27, 1995, November 3, 1995, The Honorable Michael September 26, 1995.................. 065020
7162). Camarillo Star. Morgan, Mayor, City
of Camarillo, P.O.
Box 248, Camarillo,
California 93011.
California: Fresno (FEMA Docket No. City of Clovis....................... October 10, 1995, October 17, 1995, The Honorable Harry September 20, 1995.................. 060044
7162). Fresno Bee. Armstrong, Mayor,
City of Clovis, 1033
Fifth Street, Clovis,
California 93612.
California: Fresno (FEMA Docket No. City of Fresno....................... October 10, 1995, October 17, 1995, The Honorable Jim September 20, 1995.................. 060048
7162). Fresno Bee. Patterson, Mayor,
City of Fresno, 2600
Fresno Street,
Fresno, California
93721-3604.
California: Fresno (FEMA Docket No. Unincorporated Areas................. October 10, 1995, October 17, 1995, The Honorable Sharon September 20, 1995.................. 065029
7162). Fresno Bee. Levy, Chairman,
Fresno County Board
of Supervisors, 2281
Tulare Street, Hall
of Records, Room 301,
Fresno, California
93721-2198.
California: Santa Barbara (FEMA City of Santa Barbara................ November 2, 1995, November 9, 1995, The Honorable Harriet October 11, 1995.................... 060335
Docket No. 7167). Santa Barbara News Press. Miller, Mayor, City
of Santa Barbara,
City Hall, P.O. Box
1990, Santa Barbara,
California 93102-1990.
[[Page 14663]]
California: Santa Clara (FEMA Docket City of Saratoga..................... October 25, 1995, November 1, 1995, The Honorable Ann October 6, 1995..................... 060351
No. 7162). Saratoga News. Marie Burger, Mayor,
City of Saratoga,
13777 Fruitvale
Avenue, Saratoga,
California 95070.
California: Ventura (FEMA Docket No. Unincorporated Areas................. October 27, 1995, November 3, 1995, The Honorable Maggie September 26, 1995.................. 060413
7162). Ventura County Star. Kildee, Chairperson,
Ventura County Board
of Supervisors, 800
South Victoria
Avenue, Ventura,
California 93009.
Colorado: Adams, Arapahoe, and City of Aurora....................... October 25, 1995, November 1, 1995, The The Honorable Paul E. October 11, 1995.................... 080002
Douglas (FEMA Docket No. 7162). Aurora Sentinel. Tauer, Mayor, City of
Aurora, 1470 South
Havana Street,
Aurora, Colorado
80012.
Colorado: El Paso (FEMA Docket No. City of Colorado Springs............. November 21, 1995, November 28, 1995, The Honorable Robert October 25, 1995.................... 080060
7167). Gazette Telegraph. M. Isaac, Mayor, City
of Colorado Springs,
P.O. Box 1575,
Colorado Springs,
Colorado 80901.
Colorado: El Paso (FEMA Docket No. Unincorporated Areas................. November 21, 1995, November 28, 1995, The Honorable Loren October 25, 1995.................... 080059
7167). Gazette Telegraph. Whittemore,
Chairperson, El Paso
County Board of
Commissioner, 27 East
Vermijo, Third Floor,
Colorado Springs,
Colorado 80903-2225.
Hawaii: Maui (FEMA Docket No. 7160).. Unincorporated Areas................. September 20, 1995, September 27, 1995, The Honorable Linda August 17, 1995..................... 150003
Maui News. Crockett Lingle,
Mayor, Maui County,
250 South High
Street, Wailuku,
Maui, Hawaii 96793.
Louisiana: Rapides Parish (FEMA Rapides Parish....................... October 12, 1995, October 19, 1995, The Honorable Myron K. September 20, 1995.................. 220145
Docket No. 7162). Alexandria Daily Town Talk. Lawson, President,
Rapides Parish Police
Jury, P.O. Box 1150,
Alexandria, Louisiana
71309-1150.
Missouri: Greene (FEMA Docket No. Unincorporated Areas................. November 3, 1995, November 10, 1995, The Honorable David L. October 18, 1995.................... 290782
7167). News-Leader. Coonrod, Presiding
Commissioner, Greene
County Commission,
940 Boonville Avenue,
Springfield, Missouri
65802.
Nebraska: Douglas (FEMA Docket No. City of Omaha........................ October 11, 1995, October 18, 1995, The Honorable Hal September 14, 1995.................. 315274
7162). Omaha World Herald. Daub, Mayor, City of
Omaha, City Hall,
1819 Farnam Street,
Suite 300, Omaha,
Nebraska 68183.
[[Page 14664]]
Oklahoma: Cleveland (FEMA Docket No. City of Norman....................... October 24, 1995, October 31, 1995, The Honorable William October 18, 1995.................... 400046
7167). Norman Transcript. Nations, Mayor, City
of Norman, 201 West
Gray, Norman,
Oklahoma 73070.
Oklahoma: Oklahoma (FEMA Docket No. City of Oklahoma City................ October 22, 1995, October 29, 1995, The Honorable Ronald November 2, 1995.................... 405378
7167). Journal Record. J. Norick, Mayor,
City of Oklahoma
City, 200 North
Walker Avenue,
Oklahoma City,
Oklahoma 73102.
Oregon: Jefferson (FEMA Docket No. City of Culver....................... October 4, 1995, October 11, 1995, The Honorable Joanne September 6, 1995................... 410290
7162). Madras Pioneer. G. Heare, Mayor, City
of Culver, P.O. Box
256, Culver, Oregon
97734.
Oregon: Marion and (FEMA Docket No. City of Salem........................ October 26, 1995, November 2, 1995, The Honorable Roger October 6, 1995..................... 410167
7162). Stateman Journal. Gertenrich, Mayor,
City of Salem, City
Hall, 555 Liberty
Street Southeast,
Salem, Oregon 97301-
3503.
Texas: Tarrant (FEMA Docket No. 7162) City of Arlington.................... October 19, 1995, October 26, 1995, The Honorable Richard September 27, 1995.................. 485454
Fort Worth Star Telegram. Greene, Mayor, City
of Arlington, P.O.
Box 231, Arlington,
Texas 76004-0231.
Texas: Tarrant (FEMA Docket No. 7167) City of Bedford...................... November 2, 1995, November 9, 1995, The Honorable Rick D. October 13, 1995.................... 480585
Fort Worth Star Telegram. Hurt, Mayor, City of
Bedford, P.O. Box
157, Bedford, Texas
76095-0157.
Texas: Coryell (FEMA Docket No. 7162) City of Copperas Cove................ October 12, 1995, October 19, 1995, The Honorable J. A. September 19, 1995.................. 480155
Killeen Daily Herald. Darosett, Mayor, City
of Copperas Cove,
P.O. Drawer 1449,
Copperas Cove, Texas
76522.
Texas: El Paso (FEMA Docket No. 7167) City of El Paso...................... November 7, 1995, November 14, 1995, El The Honorable William October 18, 1995.................... 480214
Paso Times. S. Tilney, Mayor,
City of El Paso, Two
Civic Center Plaza,
El Paso, Texas 79901.
Texas: El Paso (FEMA Docket No. 7162) City of El Paso...................... October 19, 1995, October 26, 1995, El The Honorable Larry September 15, 1995.................. 480214
Paso Times. Francis, Mayor, City
of El Paso, El Paso,
Texas 79901-1196.
Texas: Bexar (FEMA Docket No. 7162).. City of Fair Oaks Ranch.............. October 18, 1995, October 25, 1995, The Honorable E. L. September 13, 1995.................. 481644
Hill County Recorder. Gaubatz, Mayor, City
of Fair Oaks Ranch,
7286 Dietz Elkhorn,
Fair Oaks Ranch,
Texas 78015.
[[Page 14665]]
Texas: Williamson (FEMA Docket No. City of Georgetown................... November 22, 1995, November 29, 1995, The Honorable Leo November 8, 1995.................... 480668
7167). Williamson County Sun. Wood, Mayor, City of
Georgetown, P.O. Box
409, Georgetown,
Texas 78627.
Texas: Gregg and Rusk (FEMA Docket City of Kilgore...................... September 22, 1995, September 29, 1995, The Honorable Bill August 23, 1995..................... 480263
No. 7160). Kilgore News Herald. Wilson, Mayor, City
of Kilgore, P.O. Box
1125, Kilgore Texas.
Texas: Tarrant (FEMA Docket No. 7167) City of Pantego...................... November 22, 1995, November 29, 1995, The Honorable Susan October 31, 1995.................... 481116
Fort Worth Commercial Reporter. Abercrombie, Mayor,
Town of Pantego, 1614
South Bowen Road,
Pantego, Texas 76013.
Texas: Collin (FEMA Docket No. 7162). City of Plano........................ October 19, 1995, October 26, 1995, The Honorable James N. September 27, 1995.................. 480140
Dallas Morning News. Muns, Mayor, City of
Plano, P.O. Box
860358, Plano, Texas
75086-0358.
Texas: Tom Green (FEMA Docket No. City of San Angelo................... October 20, 1995, October 27, 1995, San The Honorable Dick September 27, 1995.................. 480623
7162). Angelo Standard Times. Funk, Mayor, City of
San Angelo, P.O. Box
1751, San Angelo,
Texas 76902-1751.
Texas: Williamson (FEMA Docket No. Unincorporated Areas................. November 22, 1995, November 29, 1995, The Honorable John November 8, 1995.................... 481079
7167). Williamson County Sun. Doerfler, Williamson
County Judge, County
Courthouse, 710 Main
Street, Georgetown,
Texas 78626.
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
(Catalog of Federal Domestic Assistance No. 83.100, ``Flood
Insurance.'')
Dated: March 25, 1996.
Richard W. Krimm,
Acting Associate Director for Mitigation.
[FR Doc. 96-8126 Filed 4-2-96; 8:45 am]
BILLING CODE 6718-04-P
Complete official Federal Register PDF
FR Doc. 96-8125 Changes in Flood Elevation Determinations
[Federal Register Volume 61, Number 65 (Wednesday, April 3, 1996)]
[Rules and Regulations]
[Pages 14658-14661]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-8125]
=======================================================================
-----------------------------------------------------------------------
FEDERAL EMERGENCY MANAGEMENT AGENCY
44 CFR Part 65
[Docket No. FEMA-7176]
Changes in Flood Elevation Determinations
AGENCY: Federal Emergency Management Agency (FEMA).
ACTION: Interim rule.
-----------------------------------------------------------------------
SUMMARY: This interim rule lists communities where modification of the
base (1% annual chance) flood elevations is appropriate because of new
scientific or technical data. New flood insurance premium rates will be
calculated from the modified base flood elevations for new buildings
and their contents.
DATES: These modified base flood elevations are currently in effect on
the dates listed in the table and revise the Flood Insurance Rate
Map(s) in effect prior to this determination for each listed community.
From the date of the second publication of these changes in a
newspaper of local circulation, any person has ninety (90) days in
which to request through the community that the Acting Associate
Director, Mitigation Directorate, reconsider the changes. The modified
elevations may be changed during the 90-day period.
[[Page 14659]]
ADDRESSES: The modified base flood elevations for each community are
available for inspection at the office of the Chief Executive Officer
of each community. The respective addresses are listed in the following
table.
FOR FURTHER INFORMATION CONTACT: Michael K. Buckley, P.E., Chief,
Hazard Identification Branch, Mitigation Directorate, 500 C Street, SW,
Washington, DC 20472, (202) 646-2756.
SUPPLEMENTARY INFORMATION: The modified base flood elevations are not
listed for each community in this interim rule. However, the address of
the Chief Executive Officer of the community where the modified base
flood elevation determinations are available for inspection is
provided.
Any request for reconsideration must be based upon knowledge of
changed conditions, or upon new scientific or technical data.
The modifications are made pursuant to Section 201 of the Flood
Disaster Protection Act of 1973, 42 U.S.C. 4105, and are in accordance
with the National Flood Insurance Act of 1968, 42 U.S.C. 4001 et seq.,
and with 44 CFR Part 65.
For rating purposes, the currently effective community number is
shown and must be used for all new policies and renewals.
The modified base flood elevations are the basis for the floodplain
management measures that the community is required to either adopt or
to show evidence of being already in effect in order to qualify or to
remain qualified for participation in the National Flood Insurance
Program (NFIP).
These modified elevations, together with the floodplain management
criteria required by 44 CFR 60.3, are the minimum that are required.
They should not be construed to mean that the community must change any
existing ordinances that are more stringent in their floodplain
management requirements. The community may at any time enact stricter
requirements of its own, or pursuant to policies established by other
Federal, State, or regional entities.
The changes in base flood elevations are in accordance with 44 CFR
65.4.
National Environmental Policy Act. This rule is categorically
excluded from the requirements of 44 CFR Part 10, Environmental
Consideration. No environmental impact assessment has been prepared.
Regulatory Flexibility Act. The Acting Associate Director,
Mitigation Directorate, certifies that this rule is exempt from the
requirements of the Regulatory Flexibility Act because modified base
flood elevations are required by the Flood Disaster Protection Act of
1973, 42 U.S.C. 4105, and are required to maintain community
eligibility in the NFIP. No regulatory flexibility analysis has been
prepared.
Regulatory Classification. This interim rule is not a significant
regulatory action under the criteria of Section 3(f) of Executive Order
12866 of September 30, 1993, Regulatory Planning and Review, 58 FR
51735.
Executive Order 12612, Federalism. This rule involves no policies
that have federalism implications under Executive Order 12612,
Federalism, dated October 26, 1987.
Executive Order 12778, Civil Justice Reform. This rule meets the
applicable standards of Section 2(b)(2) of Executive Order 12778.
List of Subjects in 44 CFR Part 65
Flood insurance, Floodplains, Reporting and recordkeeping
requirements.
Accordingly, 44 CFR Part 65 is amended to read as follows:
PART 65--[AMENDED]
1. The authority citation for Part 65 continues to read as follows:
Authority: 42 U.S.C. 4001 et seq.; Reorganization Plan No. 3 of
1978, 3 CFR, 1978 Comp., p. 329; E.O. 12127, 44 FR 19367, 3 CFR,
1979 Comp., p. 376.
Sec. 65.4 [Amended]
2. The tables published under the authority of Sec. 65.4 are
amended as follows:
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Dates and Name of Newspaper Where Chief Executive Community
State and County Location Notice Was Published Officer of Community Effective Date of Modification Number
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
California: Contra Costa............. City of Clayton...................... March 7, 1996, March 14, 1996, Contra The Honorable Robert February 5, 1996.................... 060027
Costa Times. Kendall, Mayor, City
of Clayton, P.O. Box
280, Clayton,
California 94517.
California: Contra Costa............. City of Concord...................... March 7, 1996, March 14, 1996, Contra The Honorable Lou February 5, 1996.................... 065022
Costa Times. Rosas, Mayor, City of
Concord, 1950
Parkside Drive,
Concord, California
94519.
California: Sonoma................... City of Cotati....................... February 7, 1996, February 14, 1996, The Honorable John January 11, 1996.................... 060377
Press Democrat. Dell'Osso, Mayor,
City of Cotati, 201
West Sierra Avenue,
Cotati, California
94931.
California: San Luis Obispo.......... City of El Paso de Robles............ February 8, 1996, February 15, 1996, The Honorable Walter January 11, 1996.................... 060308
Daily Press. Macklin, Mayor, City
of El Paso de Robles,
1000 Spring Street,
El Paso de Robles,
California 93446.
[[Page 14660]]
Colorado: Arapahoe................... Unincorporated Areas................. February 15, 1996, February 22, 1996, The Honorable Thomas January 16, 1996.................... 080011
The Villager. R. Eggert,
Chairperson, Arapahoe
County Board of
Commissioners, 5334
South Prince Street,
Littleton, Colorado
80166.
Colorado: Archuleta.................. Unincorporated Areas................. February 22, 1996, February 29, 1996, The Honorable Bill January 23, 1996.................... 080273
Pagosa Springs Sun. Tallon, Chairman,
Archuleta Board of
County Commissioners,
P.O. Box 1507, Pagosa
Springs, Colorado
81147.
Colorado: Boulder.................... City of Boulder...................... February 22, 1996, February 29, 1996, The Honorable Leslie January 16, 1996.................... 080024
Daily Camera. Durgin, Mayor, City
of Boulder, P.O. Box
791, Boulder,
Colorado 80306.
Colorado: El Paso.................... City of Colorado Springs............. February 21, 1996, February 28, 1996, The Honorable Robert January 22, 1996.................... 080060
Gazette Telegraph. Isaac, Mayor, City of
Colorado Springs,
P.O. Box 1575,
Colorado Springs,
Colorado 80901.
Colorado: Jefferson.................. City of Golden....................... February 9, 1996, February 16, 1996, The Honorable Marvin January 11, 1996.................... 080090
Golden Transcript. Kaye, Mayor, City of
Golden, City Hall,
911 10th Street,
Golden, Colorado
80401.
Colorado: Arapahoe and Douglas....... City of Littleton.................... February 29, 1996, March 7, 1996, The Honorable Dennis February 6, 1996.................... 080017
Littleton Independent. Reynolds, Mayor, City
of Littleton, 2255
West Berry Avenue,
Littleton, Colorado
80165.
Colorado: Archuleta.................. Town of Pagosa Springs............... February 22, 1996, February 29, 1996, The Honorable Ross January 23, 1996.................... 080019
Pagosa Springs Sun. Aragon, Mayor, Town
of Pagosa Springs,
P.O. Box 1859, Pagosa
Springs, Colorado
81147.
Oklahoma: Garfield................... City of Enid......................... February 22, 1996, February 29, 1996, The Honorable Michael January 23, 1996.................... 400062
Enid News and Eagle. G. Cooper, Mayor,
City of Enid, P.O.
Box 1768, Enid,
Oklahoma 73702-1768.
Oklahoma: Canadian................... City of Oklahoma City................ February 15, 1996, February 22, 1996, The Honorable Ronald January 22, 1996.................... 405378
Journal Record. J. Norick, Mayor,
City of Oklahoma
City, 200 North
Walker Avenue,
Oklahoma City,
Oklahoma 73102.
[[Page 14661]]
Texas: Travis........................ City of Austin....................... February 22, 1996, February 29, 1996, The Honorable Bruce January 19, 1996.................... 480624
Austin American Statesman. Todd, Mayor, City of
Austin, P.O. Box
1088, Austin, Texas
78767.
Texas: Denton........................ Unincorporated Areas................. February 21, 1996, February 28, 1996, The Honorable Jeff February 2, 1996.................... 480774
Lewisville Leader. Moseley, Denton
County Judge, Denton
County Commissioner's
Court, Courthouse on
the Square, 110 West
Hickory, Denton,
Texas 76201.
Texas: Denton........................ City of Lewisville................... February 21, 1996, February 28, 1996, The Honorable Bobbie February 2, 1996.................... 480195
Lewisville Leader. J. Mitchell, Mayor,
City of Lewisville,
P.O. Box 299002,
Lewisville, Texas
75029.
Texas: Dallas........................ City of Mesquite..................... March 7, 1996, March 14, 1996, Mesquite The Honorable Cathye January 31, 1996.................... 485490
News. Ray, Mayor, City of
Mesquite, P.O. Box
850137, Mesquite,
Texas 75185-0137.
Texas: Collin........................ City of Plano........................ February 21, 1996, February 28, 1996, The Honorable James N. January 29, 1996.................... 480140
Plano Star Courier. Muns, Mayor, City of
Plano, P.O. Box
860358, Plano, Texas
75086-0358.
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
(Catalog of Federal Domestic Assistance No. 83.100, ``Flood
Insurance.'')
Dated: March 25, 1996.
Richard W. Krimm,
Acting Associate Director for Mitigation.
[FR Doc. 96-8125 Filed 4-2-96; 8:45 am]
BILLING CODE 6718-04-P
Complete official Federal Register PDF
FR Doc. 96-8124 Final Flood Elevation Determinations
[Federal Register Volume 61, Number 65 (Wednesday, April 3, 1996)]
[Rules and Regulations]
[Pages 14665-14672]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-8124]
-----------------------------------------------------------------------
FEDERAL EMERGENCY MANAGEMENT AGENCY
44 CFR Part 67
Final Flood Elevation Determinations
AGENCY: Federal Emergency Management Agency (FEMA).
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: Base (1% annual chance) flood elevations and modified base
flood elevations are made final for the communities listed below. The
base flood elevations and modified base flood elevations are the basis
for the floodplain management measures that each community is required
either to adopt or to show evidence of being already in effect in order
to qualify or remain qualified for participation in the National Flood
Insurance Program (NFIP).
EFFECTIVE DATE: The date of issuance of the Flood Insurance Rate Map
(FIRM) showing base flood elevations and modified base flood elevations
for each community. This date may be obtained by contacting the office
where the FIRM is available for inspection as indicated in the table
below.
ADDRESSES: The final base flood elevations for each community are
available for inspection at the office of the Chief Executive Officer
of each community. The respective addresses are listed in the table
below.
FOR FURTHER INFORMATION CONTACT: Michael K. Buckley, P.E., Chief,
Hazard Identification Branch, Mitigation Directorate, 500 C Street, SW,
Washington, DC 20472, (202) 646-2756.
SUPPLEMENTARY INFORMATION: The Federal Emergency Management Agency
makes final determinations listed below of base flood elevations and
modified base flood elevations for each community listed. The proposed
base flood elevations and proposed modified base flood elevations were
published in newspapers of local circulation and an opportunity for the
community or individuals to appeal the proposed determinations to or
through the community was provided for a period of ninety (90) days.
The proposed base flood elevations and proposed modified base flood
elevations were also published in the Federal Register.
This final rule is issued in accordance with Section 110 of the
Flood Disaster Protection Act of 1973, 42 U.S.C. 4104, and 44 CFR Part
67.
FEMA has developed criteria for floodplain management in floodprone
areas in accordance with 44 CFR Part 60.
Interested lessees and owners of real property are encouraged to
review the proof Flood Insurance Study and FIRM available at the
address cited below for each community.
[[Page 14666]]
The base flood elevations and modified base flood elevations are
made final in the communities listed below. Elevations at selected
locations in each community are shown.
National Environmental Policy Act. This rule is categorically
excluded from the requirements of 44 CFR Part 10, Environmental
Consideration. No environmental impact assessment has been prepared.
Regulatory Flexibility Act. The Acting Associate Director for
Mitigation certifies that this rule is exempt from the requirements of
the Regulatory Flexibility Act because final or modified base flood
elevations are required by the Flood Disaster Protection Act of 1973,
42 U.S.C. 4104, and are required to establish and maintain community
eligibility in the NFIP. No regulatory flexibility analysis has been
prepared.
Regulatory Classification. This final rule is not a significant
regulatory action under the criteria of Section 3(f) of Executive Order
12866 of September 30, 1993, Regulatory Planning and Review, 58 FR
51735.
Executive Order 12612, Federalism. This rule involves no policies
that have federalism implications under Executive Order 12612,
Federalism, dated October 26, 1987.
Executive Order 12778, Civil Justice Reform. This rule meets the
applicable standards of Section 2(b)(2) of Executive Order 12778.
List of Subjects in 44 CFR Part 67
Administrative practice and procedure, Flood insurance, Reporting
and recordkeeping requirements.
Accordingly, 44 CFR Part 67 is amended to read as follows:
PART 67--[AMENDED]
1. The authority citation for Part 67 continues to read as follows:
Authority: 42 U.S.C. 4001 et seq.; Reorganization Plan No. 3 of
1978, 3 CFR, 1978 Comp., p. 329; E.O. 12127, 44 FR 19367, 3 CFR,
1979 Comp., p. 376.
Sec. 67.11 [Amended]
2. The tables published under the authority of Sec. 67.11 are
amended as follows:
------------------------------------------------------------------------
#Depth in
feet above
ground.
Source of flooding and location *Elevation
in feet
(NGVD)
------------------------------------------------------------------------
ARIZONA
-------------------------------------------------------------
Flagstaff (City), Coconino County (FEMA Docket No. 7163)
Clay Avenue Wash:
At Milton Road............................................ *6,894
Approximately 450 feet upstream of Malpais Lane........... *6,899
Approximately 80 feet upstream of Blackbird Forest Street. *6,901
At Chateau Drive.......................................... *6,905
Approximately 980 feet upstream of Chateau Drive.......... *6,930
Approximately 1,300 feet upstream of Chateau Drive........ *6,931
Maps are available for inspection at the City of Flagstaff
City Hall, 211 West Aspen Avenue, Flagstaff, Arizona.
-------------------------------------------------------------
ARKANSAS
-------------------------------------------------------------
Pulaski County (Unincorporated Areas) (FEMA Docket No. 7161)
Little Maumelle River:
At confluence of Nowlin Creek............................. *269
Approximately 120 feet upstream of State Highway 10....... *295
Just downstream of Ferndale Cutoff Road................... *358
Just upstream of Grimmett Lane............................ *476
Just upstream of Brush Mountain Trail..................... *564
Kinley Creek:
Approximately 1,000 feet upstream of confluence with
Nowlin Creek............................................. *295
Approximately 150 feet upstream of State Highway 10....... *310
Just upstream of Garrison Road............................ *396
Just upstream of Copper Creek Lane........................ *428
Nowlin Creek:
Approximately 1,700 feet above mouth...................... *270
Approximately 150 feet downstream of Barrett Road......... *281
Just downstream of Goodson Road........................... *330
Approximately 100 feet upstream of county road............ *400
At upstream Limits of Detailed Study located at a county
road..................................................... *500
McHenry Creek:
Approximately 1,150 feet upstream of Lawson Road.......... *359
Approximately 200 feet upstream of Lawson Road............ *406
Approximately 150 feet upstream of Green Bear Road........ *489
Just upstream of Colonel Glenn Road....................... *546
Maps are available for inspection at the Planning
Department, Pulaski County, 501 West Markham Street, Suite
A, Little Rock, Arkansas.
-------------------------------------------------------------
CALIFORNIA
-------------------------------------------------------------
Cathedral (City), Riverside County (FEMA Docket No. 7126)
Whitewater River:
Approximately 1,400 feet downstream of Date Palm Road..... *283
At Date Palm Road......................................... *291
Approximately 1,850 feet downstream of Cathedral Canyon
Drive.................................................... *297
Approximately 1,700 feet upstream of Cathedral Canyon
Drive.................................................... *317
Approximately 2,000 feet downstream of 34th Avenue (Dinah
Shore Drive)............................................. *320
Approximately 2,000 feet upstream of 34th Avenue (Dinah
Shore Drive)............................................. *341
At Ramon Road............................................. *362
Approximately 4,000 feet upstream of Ramon Road........... *388
Approximately 4,200 feet downstream of Vista Chino Road... *414
Approximately 1,750 feet downstream of Vista Chino Road... *433
Approximately 1,500 feet upstream of Vista Chino Road..... *455
Approximately 4,250 feet upstream of Vista Chino Road..... *476
Whitewater River Left Overbank Flooding:
Approximately 10,400 feet downstream of 34th Avenue (Dinah
Shore Drive)............................................. None
Approximately 8,600 feet downstream of 34th Avenue (Dinah
Shore Drive)............................................. None
Approximately 5,700 feet downstream of 34th Avenue (Dinah
Shore Drive)............................................. None
Approximately 1,600 feet downstream of 34th Avenue (Dinah
Shore Drive)............................................. None
Approximately 400 feet upstream of 34th Avenue (Dinah
Shore Drive)............................................. None
Approximately 100 feet upstream of Ramon Road............. None
Approximately 100 feet upstream of 30th Avenue............ None
Approximately 100 feet downstream of Vista Chino Road..... None
Approximately 1,800 feet upstream of Vista Chino Road..... None
[[Page 14667]]
Maps are available for inspection at the Building and
Planning Department, City of Cathedral City, 35325 Date
Palm Drive, #136, Cathedral City, California.
------
Cloverdale (City), Sonoma County (FEMA Docket No. 7161)
Cloverdale Creek:
At confluence with Russian River.......................... *302
Just upstream of Southern Pacific Railroad bridge......... *315
Just upstream of Third Street............................. *338
Approximately 200 feet upstream of Cloverdale Boulevard... *374
Approximately 100 feet upstream of Portofino Way.......... *385
Maps are available for inspection at the City of Cloverdale,
Department of Public Works, 124 North Cloverdale Boulevard,
Cloverdale, California
------
.Coalinga (City), Fresno County (FEMA Docket No. 7161)
Warthan Creek:
At confluence with Los Gatos Creek........................ *643
Approximately 200 feet downstream of Jayne Avenue (both
levees intact)........................................... *658
Approximately 200 feet downstream of Jayne Avenue (right
levee failed)............................................ *657
Approximately 200 feet downstream of Jayne Avenue (left
levee failed)............................................ *656
Approximately 5,000 feet upstream of Jayne Avenue......... *675
Los Gatos Creek:
Approximately 3,150 feet downstream of confluence with
Warthan Creek (levee intact)............................. *633
Approximately 3,150 feet downstream of confluence with
Warthan Creek (right levee failed)....................... *638
Just downstream of Southern Pacific Railroad (abandoned
railroad)................................................ *652
Approximately 1,600 feet upstream of confluence with
Coalmine Canyon Creek.................................... *683
Maps are available for inspection at the Planning
Department, City of Coalinga, 155 West Durin Street,
Coalinga, California.
------
Corona (City), Riverside County (FEMA Docket No. 7126)
Arlington Channel:
Approximately 600 feet downstream of Riverside Freeway.... *604
Approximately 200 feet upstream of Riverside Freeway...... *612
Approximately 200 feet downstream of Parkridge Avenue..... *625
Approximately 3,800 feet upstream of Parkridge Avenue..... *647
Approximately 900 feet upstream of Atchison, Topeka, and
Santa Fe Railroad........................................ *664
South Norco Channel Tributary A:
Approximately 3,150 feet upstream of Hamner Avenue........ *617
Approximately 4,900 feet upstream of Hamner Avenue........ *629
Temescal Wash:
Approximately 900 feet downstream of Lincoln Avenue....... *563
Approximately 400 feet upstream of Lincoln Avenue......... *572
At Cota Street............................................ *572
Approximately 600 feet upstream of River Road............. *580
Approximately 150 feet upstream of Joy Street............. *591
Approximately 100 feet downstream of Atchison, Topeka, and
Santa Fe Railroad........................................ *605
Approximately 1,600 feet upstream of Magnolia Avenue...... *653
Approximately 2,800 feet upstream of Magnolia Avenue...... *660
Approximately 4,600 feet upstream of Magnolia Avenue...... *667
Approximately 6,600 feet upstream of Magnolia Avenue...... *634
Maps are available for inspection at the Public Works
Department, City of Corona, 815 West 6th Street, Corona,
California.
Fresno County (Unincorporated Areas) (FEMA Docket No. 7161)
Warthan Creek:
Approximately 1,200 feet upstream of confluence with Los
Gatos Creek.............................................. *648
Approximately 5,000 feet upstream of Jayne Avenue......... *675
Approximately 5,900 feet upstream of Alcalde Road......... *739
Lost Gatos Creek:
Approximately 9,000 feet downstream of Southern Pacific
Railroad................................................. *618
Approximately 3,200 feet downstream of Southern Pacific
Railroad................................................. *641
Approximately 3,000 feet upstream of State Highway 198.... *683
At Gayle Avenue........................................... *760
Maps are available for inspection at the Fresno County
Library, Fresno, California.
------
Lake Elsinore (City), Riverside County (FEMA Docket No.
7126)
Temescal Wash:
Approximately 800 feet downstream of Temescal Canyon Road. *1,214
At Lake Street............................................ *1,222
Approximately 2,400 feet upstream of Lake Street.......... *1,230
Approximately 5,700 feet upstream of Lake Street.......... *1,243
Approximately 8,600 feet upstream of Lake Street.......... *1,250
Approximately 3,600 feet downstream of Nichols Road....... *1,253
Approximately 150 feet downstream of Atchison, Topeka, and
Santa Fe Railroad........................................ *1,257
Approximately 400 feet upstream of Atchison, Topeka, and
Santa Fe Railroad........................................ *1,258
Maps are available for inspection at City Hall, City of Lake
Elsinore, 130 South Main Street, Lake Elsinore, California.
------
Palm Desert (City), Riverside County (FEMA Docket No. 7126)
Whitewater River-left overbank flooding: At Monterey Avenue. None
Maps are available for inspection at the Public Works
Department, City of Palm Desert, 73510 Fred Waring Drive,
Palm Desert, California.
------
Palm Springs (City), Riverside County (FEMA Docket No. 7126)
Palm Canyon Wash:
Approximately 460 feet downstream of Bogert Drive......... *537
Approximately 1,240 feet upstream of Bogert Trail......... *548
Tahquitz Creek:
Approximately 2,100 feet downstream of Farrell Drive...... *378
Approximately 1,100 feet downstream of Farrell Drive...... *382
Approximately 1,800 feet upstream of Farrell Drive........ *395
Approximately 700 feet downstream of Sunrise Way.......... *398
Approximately 2,300 feet upstream of Sunrise Way.......... *408
Approximately 1,650 feet downstream of Palm Canyon Drive.. *418
At Palm Canyon Drive...................................... *443
[[Page 14668]]
Whitewater River:
At 34th Avenue (Dinah Shore Drive)........................ *332
Approximately 1,900 feet downstream of Vista Chino Road... *432
Approximately 500 feet downstream of Bogie Road........... *477
Maps are available for inspection at the Engineering
Department, City of Palm Springs, 3200 East Tahquitz Canyon
Way, Palm Springs, California.
------
Rancho Mirage (City), Riverside County (FEMA Docket No.
7126)
Whitewater River-left overbank flooding:
At Monterey Avenue None
Approximately 2,300 feet upstream of Monterey Avenue None
Approximately 2,500 feet downstream of Country Club Drive None
Approximately 2,150 feet upstream of Country Club Drive None
Approximately 2,100 feet upstream of Wonder Palms Drive
(Frank Sinatra Lane) None
Approximately 6,000 feet upstream of Wonder Palms Drive None
Approximately 10,200 feet upstream of Wonder Palms Drive None
Maps are available for inspection at the Engineering
Department, City of Rancho Mirage, 69825 Highway 111,
Rancho Mirage, California.
------
Solano County (Unincorporated Areas) (FEMA Docket No. 7161)
Alamo Creek:
At Leisure Town Road...................................... *86
Approximately 550 feet upstream of Vanden Road............ *96
Approximately 4,700 feet upstream of Pleasant Valley Road. *232
At Pleasant Valley Road................................... *256
Ulatis Creek:
Approximately 12,400 feet upstream of Leisure Town Road... *125
Approximately 14,650 feet upstream of Leisure Town Road... *139
Just downstream of Fruitvale Road......................... *193
Approximately 4,600 feet upstream of Fruitvale Road....... *224
Bucktown Creek:
At confluence with Ulatis Creek........................... *222
Approximately 1,000 feet upstream of confluence with
Ulatis Creek............................................. *224
Encinosa Creek:
Approximately 450 feet downstream of Pleasant Valley Road. *231
At Pleasant Valley Road (upstream crossing)............... *241
Laguna Creek:
Approximately 100 feet upstream of Highway 80............. *202
Approximately 450 feet downstream of Cherry Glen Road..... *213
Maps are available for inspection at the Solano Department
of Environmental Management, 601 Texas Street, Fairfield,
California.
-------------------------------------------------------------
IDAHO
-------------------------------------------------------------
Ada County (Unincorporated Areas) (FEMA Docket No. 7163)
Cottonwood Gulch:
Approximately 7,615 feet above Garrison Road at the City of
Boise corporate limits..................................... *2,898
Approximately 9,100 feet above Garrison Road.............. *2,930
Approximately 100 feet upstream of Shaw Mountain Road..... *2,953
Approximately 1,280 feet above Shaw Mountain Road......... *2,980
Approximately 2,280 feet above Shaw Mountain Road......... *3,010
Stuart Gulch:
Approximately 1,900 feet downstream of Cartwright Road at
the City of Boise corporate limits....................... *2,826
Approximately 1,360 feet downstream of Cartwright Road.... *2,840
Approximately 500 feet downstream of Cartwright Road...... *2,861
Hulls Gulch:
Approximately 700 feet downstream of McCord Lane at the
City of Boise corporate limits........................... *2,864
At McCord Lane............................................ *2,903
Approximately 2,300 feet upstream of McCord Lane.......... *2,971
Maps are available for inspection at the Ada County
Development Services Office, 650 Main Street, Boise, Idaho.
------
Boise (City), Ada County (FEMA Docket No. 7163)
Stuart Gulch:
Approximately 100 feet upstream of Stuart Gulch Road...... *2,692
Approximately 3,000 feet upstream of Stuart Gulch Road at
an unnamed road.......................................... *2,745
Approximately 4,600 feet upstream of Stuart Gulch Road at
an unnamed road.......................................... *2,785
Approximately 5,000 feet upstream of Stuart Gulch Road.... *2,795
Approximately 7,010 feet upstream of Stuart Gulch Road at
the City of Boise corporate limits....................... *2,826
Stuart Gulch Split Flow Channel:
At the convergence with Stuart Gulch, approximately 2,350
feet upstream of Stuart Gulch Road....................... *2,725
Approximately 2,200 feet upstream of the convergence with
Stuart Gulch at an unnamed road............................ *2,775
At the divergence from Stuart Gulch....................... *2,800
Crane Gulch:
At Hill Road.............................................. *2,732
Just upstream of Parkhill Drive........................... *2,732
Just upstream of Cottonwood Court......................... *2,773
Just upstream of Ranch Road............................... *2,795
Just downstream of Curling Drive.......................... *2,865
Hulls Gulch:
Just upstream of the intersection of 9th Street and Heron
Street................................................... *2,735
Approximately 1,400 feet downstream of Mile High Road at
9th Street............................................... *2,761
Approximately 1,000 feet upstream of Mile High Road....... *2,826
Approximately 2,300 feet upstream of Mile High Road at the
City of Boise corporate limits........................... *2,864
Cottonwood Gulch:
Approximately 1,100 feet upstream of Garrison Road........ *2,748
At confluence with Freestone Creek........................ *2,793
Approximately 4,300 feet upstream of confluence with
Freestone Creek at the City of Boise corporate limits.... *2,878
Approximately 5,085 feet upstream of confluence with
Freestone Creek at the City of Boise corporate limits.... *2,898
Maps are available for inspection at the Office of Community
Planning and Development, City Hall, 150 North Capitol
Boulevard, Boise, Idaho.
-------------------------------------------------------------
[[Page 14669]]
IOWA
-------------------------------------------------------------
Elkader (City), Clayton County (FEMA Docket No. 7161)
Turkey River:
Approximately 1.0 mile downstream of Iowa 13.............. *718
Just upstream of Iowa 13.................................. *722
Just upstream of dam...................................... *735
At corporate limit........................................ *738
Maps are available for inspection at 207 North Main Street,
Elkader, Iowa.
-------------------------------------------------------------
KANSAS
-------------------------------------------------------------
Derby (City), Sedgwick County (FEMA Docket No. 7153)
Spring Creek:
Just upstream of State Highway 15......................... *1,251
At confluence of Dry Creek................................ *1,265
Just downstream of Rock Road.............................. *1,269
Approximately 4,300 feet upstream of Rock Road, at the
City of Derby corporate limits........................... *1,275
Dry Creek:
Approximately 1,300 feet downstream of Meadowlark Road.... *1,284
Just downstream of Meadowlark Road........................ *1,287
Approximately 4,500 feet downstream of 63rd Street........ *1,296
Just downstream of 63rd Street............................ *1,307
Maps are available for inspection at Derby City Hall, 611
North Mulberry, Derby, Kansas.
-------------------------------------------------------------
LOUISIANA
-------------------------------------------------------------
St. Mary Parish (Unincorporated Areas) (FEMA Docket No.
7157)
Lower Atchafalaya (Berwick Bay):
Approximately 11,880 feet downstream of Southern Pacific
Railroad (SPRR).......................................... *10
Approximately 10,820 feet upstream of SPRR................ *12
Ponding Areas:
Ponding area west of the City of Patterson, from north of
SPRR to Bayou Teche...................................... *1.5
Ponding area west of Town of Berwick, from north of SPRR
to Bayou Teche........................................... *1.5
Ponding area south of SPRR, north of the southern portion
of levee ring............................................ *1.5
Maps are available for inspection at St. Mary Parish
Courthouse, 500 Main Street, 5th Floor, Franklin,
Louisiana.
-------------------------------------------------------------
NEBRASKA
-------------------------------------------------------------
Dakota County (Unincorporated Areas) (FEMA Docket No. 7146)
Omaha Creek:
At extraterritorial limit, south of Omaha Creek Ditch..... *1,093
At extraterritorial limit, north of Omaha Creek Ditch..... *1,094
Maps are available for inspection at 505 East 33rd, South
Sioux City, Nebraska.
------
Homer (Village), Dakota County (FEMA Docket No. 7146)
Omaha Creek:
At extraterritorial limits on riverside of right and left
levees................................................... *1,095
At extraterritorial limits on landward side of right and
left levees.............................................. *1,094
Approximately 1,850 feet downstream of U.S. Highway 77.... *1,097
Just upstream of U.S. Highway 77.......................... *1,102
Just upstream of John Street.............................. *1,111
At confluence of Fiddlers Creek........................... *1,116
At confluence of Wiggle Creek............................. *1,118
At upstream extraterritorial limit........................ *1,120
Omaha Creek Old Channel:
At extraterritorial limits................................ *1,096
At divergence from Omaha Creek............................ *1,104
Maps are available for inspection at City Hall, 110 John
Street, Homer, Nebraska.
-------------------------------------------------------------
NEW MEXICO
-------------------------------------------------------------
Sandoval County (Incorporated Areas) (FEMA Docket No. 7161)
Arkansas Channel:
At confluence with West Branch of Black's Arroyo.......... *5,499
Approximately 30 feet upstream of Lisbon Avenue........... *5,508
Approximately 20 feet upstream of Comanche Road........... *5,529
Approximately 500 feet upstream of Comanche Road (Limit of
Detailed Study).......................................... *5,546
Arroyo D:
At confluence with Tributary B............................ *5,286
Approximately 20 feet upstream of 23rd Street............. *5,289
Approximately 500 feet upstream of 23rd Street (Limit of
Detailed Study).......................................... *5,299
Arroyo de los Lomitas Negras:
At the inlet to the Dulcelina Curtis Channel.............. *5,098
Approximately 1,000 feet upstream of the inlet to the
Dulcelina Curtis Channel................................. *5,100
Approximately 100 feet downstream of State Highway 528
(Limit of Detailed Study)................................ *5,121
Arroyo de los Montoyas:
At the inlet to the Harvey Jones Channel.................. *5,079
Approximately 2,500 feet upstream of the inlet to the
Harvey Jones Channel..................................... *5,100
At the Village of Corrales/City of Rio Rancho corporate
limits................................................... *5,135
Approximately 5,500 feet upstream of the inlet to the
Harvey Jones Channel (Limit of Detailed Study)........... *5,140
East Branch of Black's Arroyo:
Approximately 120 feet upstream of the Sandoval/Bernalillo
County Line.............................................. *5,178
Approximately 100 feet upstream of 19th Street............ *5,240
Approximately 120 feet upstream of 18th Street............ *5,255
Approximately 40 feet upstream of Southern Boulevard...... *5,355
Approximately 40 feet upstream of Western Hills Drive..... *5,432
Approximately 600 feet upstream of Lema Road (Limit of
Detailed Study).......................................... *5,459
West Branch of Black's Arroyo:
At the Sandoval/Bernalillo County Line.................... *5,200
Approximately 100 feet upstream of 19th Avenue............ *5,266
Approximately 70 feet upstream of Southern Boulevard...... *5,433
Approximately 20 feet upstream of Tarpon Avenue........... *5,531
Approximately 4,200 feet upstream of Tarpon Avenue (Limit
of Detailed Study)....................................... *5,561
Jemez River:
Approximately 250 feet downstream of the Jemez Indian
Reservation boundary..................................... *5,602
At confluence with Rio Guadalupe.......................... *5,656
At the Village of Jemez Springs downstream corporate
limits................................................... *5,984
Approximately 10,560 feet upstream of Jemez Springs
downstream corporate limits.............................. *6,145
[[Page 14670]]
Approximately 100 feet upstream of Jemez Springs upstream
corporate limits......................................... *6,305
Approximately 1,200 feet upstream of confluence with San
Antonio Creek (Limit of Detailed Study).................. *6,801
Nicklaus Channel:
At confluence with the East Branch of Black's Arroyo...... *5,367
Approximately 60 feet upstream of Fairway Loop............ *5,393
Approximately 900 feet upstream of Lema Road (Limit of
Detailed Study).......................................... *5,418
Player Channel:
At confluence with the East Branch of Black's Arroyo...... *5,355
Approximately 20 feet upstream of Trevino Drive........... *5,375
Approximately 500 feet upstream of Trevino Drive (Limit of
Detailed Study).......................................... *5,380
San Antonio Channel:
At confluence with the Jemez River........................ *6,765
Approximately 10,000 feet upstream of confluence with the
Jemez River.............................................. *7.156
At confluence of Sulphur Creek............................ *7,616
Approximately 8,300 feet upstream of confluence of Sulphur
Creek (Limit of Detailed Study).......................... *7,719
Spur Channel:
At confluence with the West Branch of Black's Arroyo...... *5,375
Approximately 40 feet upstream of Southern Boulevard...... *5,462
Approximately 1,100 feet upstream of Spur Road (Limit of
Detailed Study).......................................... *5,508
Sugar Channel:
At confluence with the West Branch of Black's Arroyo...... *5,520
Approximately 20 feet upstream of Montego Drive........... *5,551
Approximately 400 feet upstream of Montego Drive (Limit of
Detailed Study).......................................... *5,561
Tributary A:
At confluence with the West Branch of Black's Arroyo...... *5,275
Approximately 100 feet upstream of 15th Street............ *5,362
Approximately 1,000 feet upstream of Villa Road (Limit of
Detailed Study).......................................... *5,520
Tributary B:
At confluence with the East Branch of Black's Arroyo...... *5,200
Approximately 120 feet upstream of 18th Avenue............ *5,259
Approximately 200 feet upstream of 14th Avenue............ *5,312
Approximately 800 feet upstream of 22nd Street (Limit of
Detailed Study).......................................... *5,355
Zone AH: Shallow flooding east of the Dulcelina Curtis
Channel.................................................... *5,033
Maps are available for inspection at 711 Camino Del Pueblo,
Bernalillo, New Mexico.
Maps are available for inspection at Highway 4, Village
Hall, Jemez Springs, New Mexico.
Maps are available for inspection at 4324 Carrales Road,
Corrales, New Mexico.
Maps are available for inspection at 3900 Southern
Boulevard, Rio Rancho, New Mexico.
------
Sierra County (Unincorporated Areas), Williamsburg
(Village), Truth or Consequences (City) (FEMA Docket No.
7161)
Rio Grande:
Approximately 1,500 feet downstream of the Village of
Williamsburg corporate limits (Limit of Detailed Study).. *4,231
At Village of Williamsburg downstream corporate limits.... *4,231
At Village of Williamsburg upstream corporate limits...... *4,233
At City of Truth or Consequences downstream corporate
limits................................................... *4,233
Approximately 20,600 feet upstream of the Limit of
Detailed Study (Magnolia Street)......................... *4,244
At City of Truth or Consequences upstream corporate limits 4,257
Approximately 6,500 feet upstream of Highway 51 (Limit of
Detailed Study).......................................... *4,257
Sierra County maps are available for inspection at 300 Date
Street, Truth or Consequences, New Mexico.
City of Truth or Consequences maps are available for
inspection at 505 Sims Street, Truth or Consequences, New
Mexico.
Village of Williamsburg maps are available for inspection at
Village Hall, Williamsburg, New Mexico.
-------------------------------------------------------------
OKLAHOMA
-------------------------------------------------------------
Chandler (City), Lincoln County (FEMA Docket No. 7161)
Bellcow Creek:
Approximately 1,350 feet downstream of U.S. Highway 66.... *831
Just upstream of U.S. Highway 66.......................... *834
Approximately 100 feet upstream of First Street........... *845
At Lake Road.............................................. *855
Bellcalf Creek:
Approximately 700 feet downstream of Lake Road............ *855
Approximately 100 feet upstream of Lake Road.............. *857
Approximately 3,750 feet upstream of Lake Road............ *867
Chigger Creek:
Approximately 70 feet upstream of Park Road............... *838
Just upstream of First Street............................. *852
Approximately 90 feet upstream of Chigger Road............ *868
Indian Creek:
Approximately 100 feet upstream of Iowa Avenue............ *853
Just upstream of Eighth Street............................ *892
Approximately 900 feet upstream of Eighth Street.......... *898
Maps are available for inspection at 200 South Cleveland,
Chandler, Oklahoma.
------
Lincoln County (Unincorporated Areas) (FEMA Docket No. 7161)
Bellcow Creek:
Approximately 4,500 feet downstream of confluence of
Indian Creek............................................. *823
Just downstream of U.S. Highway 66........................ *833
Just downstream of Interstate Highway 44.................. *850
Approximately 2,100 feet upstream of Lake Road............ *856
Bellcalf Creek:
Approximately 700 feet downstream of Lake Road.......... *855
Just downstream of Lake Road............................ *856
Approximately 3,450 feet upstream of Lake Road.......... *866
Indian Creek:
Just upstream of State Highway 18....................... *829
Just downstream of Iowa Avenue.......................... *850
Maps are available for inspection at the Lincoln County
Courthouse, Chandler, Oklahoma.
------
Noble County (Unincorporated Areas) (FEMA Docket No. 7157)
Cow Creek:
Approximately 5,400 feet downstream of Atchison, Topeka,
and Santa Fe Railroad.................................... *968
Just upstream of Atchison, Topeka, and Santa Fe Railroad.. *974
[[Page 14671]]
Approximately 6,600 feet upstream of confluence of Calf
Creek.................................................... *1,001
Golf Course Tributary:
Approximately 3,700 feet downstream of U.S. Route 77...... *972
At 7th Street............................................. *992
Just downstream of 15th Street............................ *1,017
Just upstream of 15th Street.............................. *1,023
Golf Course Lake Tributary:
Approximately 500 feet downstream of Quail Creek Road..... *995
Approximately 300 feet upstream of Quail Creek Road....... *1,001
Wills Lake Tributary:
Approximately 1,200 feet downstream of U.S. Route 64...... *977
At U.S. Route 64.......................................... *987
Unnamed Tributary to Cow Creek:
Approximately 2,600 feet downstream of Interstate Route 88 *988
Approximately 1,000 feet upstream of Interstate Route 88.. 1,008
Maps are available for inspection at 300 Courthouse Drive,
Perry, Oklahoma.
------
Pauls Valley (City), Garvin County (FEMA Docket No. 7153)
Rush Creek:
Approximately 2,700 feet downstream of Gulf, Colorado and
Santa Fe Railroad, at the extraterritorial limits........ *856
At U.S. Highway 77 (Chickasaw Avenue)..................... *873
Just downstream of South Paul Street...................... *877
Approximately 500 feet upstream of Interstate Highway 35.. *886
Approximately 1,800 feet upstream of Interstate Highway 35 *887
Rush Creek (Area North of Levee):
On the projection of Leslie Avenue, between Rush Creek and
the railroad............................................. *869
At intersection of Garvin Avenue and Chickasaw Street..... *873
At intersection of Grant Avenue and Pine Street........... *875
At intersection of Agnew Avenue and Pine Street........... *878
Maps are available for inspection at City Hall, City of
Pauls Valley, 220 West Paul Avenue, Pauls Valley, Oklahoma.
------
Perry (City), Noble County (FEMA Docket No. 7157)
Cow Creek:
Just upstream of Ivanhoe Street at corporate limits....... *978
Just downstream of U.S. Highway 64........................ *980
Just downstream of Cedar Street........................... *984
At confluence with South of Highway 77 Tributary.......... *992
At southernmost corporate limits.......................... *996
Calf Creek:
At confluence with Cow Creek.............................. *989
Just upstream of Cedar Street............................. *1,018
Just upstream of 15th Street.............................. *1,020
Just upstream of 25th Street.............................. *1,047
Just upstream of St. Louis-San Francisco Railroad......... *1,063
Just upstream of Interstate Highway 35.................... *1,083
Cherokee Strip Tributary:
At confluence with Calf Creek............................. *1,048
Just upstream of U.S. Highway 64.......................... *1,049
Just upstream of Interstate Highway 35.................... *1,090
Ditch Witch Tributary:
At confluence with Calf Creek............................. *1,029
Just upstream of U.S. Highway 64.......................... *1,032
South of Highway 77 Tributary:
At confluence with Cow Creek.............................. *992
Just upstream of Atchison, Topeka, and Santa Fe Railroad
at corporate limits...................................... *998
Unnamed Tributary A of Calf Creek:
At confluence with Calf Creek............................. *1,023
Just upstream of St. Louis-San Francisco Railroad......... *1,023
Unnamed Tributary B of Calf Creek:
At confluence with Calf Creek............................. *1,025
Approximately 2,000 feet upstream of confluence with Calf
Creek.................................................... *1,035
Just upstream of St. Louis-San Francisco Railroad......... *1,052
Unnamed Tributary C of Calf Creek:
At confluence with Calf Creek............................. *1,024
Just upstream of St. Louis-San Francisco Railroad......... *1,027
Leo Park Tributary:
At confluence with Cow Creek.............................. *984
Just upstream of Cedar Street............................. *988
Approximately 1,200 feet upstream of Cedar Street......... *990
Golf Course Tributary:
Just upstream of easternmost corporate limits............. *973
Just upstream of U.S. Route 77............................ *980
Just upstream of 7th Street............................... *992
Just downstream of 15th Street............................ *1,018
Golf Course Lake Tributary:
At confluence with Golf Course Tributary.................. *995
Just upstream of Quail Creek Road......................... *1,001
Brookwood Park Tributary:
At confluence with Golf Course Tributary.................. *978
Just upstream of U.S. Route 77............................ *997
Just upstream of 7th Street............................... *1,009
Just upstream of 9th Street............................... *1,019
Wills Lake Tributary:
Approximately 600 feet upstream of confluence with Cow
Creek.................................................... *980
Just downstream of U.S. Route 64.......................... *986
Maps are available for inspection at 732 Delaware, Perry,
Oklahoma.
-------------------------------------------------------------
TEXAS
-------------------------------------------------------------
Uvalde (City), Uvalde County (FEMA Docket No. 7163)
Cooks Slough:
Approximately 500 feet downstream of West Main Street..... *899
Just downstream of Fort Clark Street...................... *901
Approximately 4,300 feet downstream of Benson Road........ *908
Approximately 300 feet downstream of Benson Road.......... *917
Maps are available for inspection at Uvalde City Hall,
Highway 90, Uvalde, Texas.
------
Uvalde County (Unincorporated Areas) (FEMA Docket No. 7163)
Cooks Slough:
Approximately 1,100 feet upstream of U.S. Highway 83 (or
100 feet upstream of South Grove Street)................. *893
Just downstream of the grade control structure............ *904
Approximately 2,470 feet upstream of Benson Road (FM 1052) *920
Maps are available for inspection at the County Judge's
Office, Uvalde County Courthouse, Courthouse Square, Corner
of Main and Getty Streets, Uvalde, Texas.
-------------------------------------------------------------
UTAH
-------------------------------------------------------------
Wendover (Town), Tooele County (FEMA Docket No. 7161)
Drainage along north side of Interstate Highway 80:
[[Page 14672]]
Approximately 2,700 feet north of Interstate Highway 80
adjacent to corporate limits............................. #2
Approximately 2,000 feet north of Interstate Highway 80
adjacent to corporate limits............................. #1
Approximately 1,000 feet north of Interstate Highway 80
adjacent to corporate limits............................. #2
Approximately 500 feet north of Interstate Highway 80
adjacent to corporate limits............................. #1
Approximately 100 feet north of Interstate Highway 80 and
300 feet due east of corporate limits.................... *4,349
Approximately 100 feet north of Interstate Highway 80 and
1,300 feet due east of corporate limits.................. *4,344
Approximately 100 feet north of Interstate Highway 80 and
2,800 feet due east of corporate limits.................. *4,339
Drainage along south side of Interstate Highway 80:
Approximately 100 feet south of Interstate Highway 80 and
200 feet due east of corporate limits.................... #3
Approximately 700 feet south of Interstate Highway 80 and
450 feet east of corporate limits........................ #2
Approximately 1,500 feet south of Interstate Highway 80
and 1,000 feet due east of corporate limits.............. #1
Approximately 100 feet north of Union Pacific Railroad and
3,000 feet due east of corporate limits.................. *4,245
Maps are available for inspection at 195 South First Street,
Wendover, Utah.
-------------------------------------------------------------
WASHINGTON
-------------------------------------------------------------
Ferry County (Unincorporated Areas) (FEMA Docket No. 7163)
Kettle River--Reach 7 (Near Curlew):
Approximately 73.96 miles upstream of confluence with the
Columbia River........................................... *1,806
Approximately 74.66 miles upstream of confluence with the
Columbia River........................................... *1,810
Approximately 75.17 miles upstream of confluence with the
Columbia River........................................... *1,812
Approximately 75.52 miles upstream of confluence with the
Columbia River........................................... *1,814
Approximately 75.84 miles upstream of confluence with the
Columbia River........................................... *1,815
Kettle River--Reach 1 (Near Barstow):
Approximately 9.87 miles upstream of confluence with the
Columbia River........................................... *1,306
Approximately 10.36 miles upstream of confluence with the
Columbia River........................................... *1,309
Approximately 10.86 miles upstream of confluence with the
Columbia River........................................... *1,312
Kettle River--Reach 2 (Near Orient):
Approximately 18.62 miles upstream of confluence with the
Columbia River........................................... *1,389
Approximately 18.77 miles upstream of confluence with the
Columbia River........................................... *1,390
Approximately 19.17 miles upstream of confluence with the
Columbia River........................................... *1,391
Kettle River--Reach 3 (Near Laurier):
Approximately 27.24 miles upstream of confluence with the
Columbia River........................................... *1,435
Approximately 27.53 miles upstream of confluence with the
Columbia River........................................... *1,438
Approximately 28.00 miles upstream of confluence with the
Columbia River........................................... *1,441
Approximately 28.26 miles upstream of confluence with the
Columbia River........................................... *1,443
Kettle River--Reach 4 (Near Danville):
Approximately 58.0 miles upstream of confluence with the
Columbia River........................................... *1,732
Approximately 58.43 miles upstream of confluence with the
Columbia River........................................... *1,733
Kettle River--Reach 5 (Near Curlew):
Approximately 64.87 miles upstream of confluence with the
Columbia River........................................... *1,764
Approximately 65.17 miles upstream of confluence with the
Columbia River........................................... *1,765
Approximately 65.45 miles upstream of confluence with the
Columbia River........................................... *1,766
Kettle River--Reach 8 (Near Ferry):
Approximately 84.78 miles upstream of confluence with the
Columbia River........................................... *1,864
Approximately 85.15 miles upstream of confluence with the
Columbia River........................................... *1,866
Approximately 85.58 miles upstream of confluence with the
Columbia River........................................... *1,868
Maps are available for inspection at the Ferry County
Planning Department, 146 North Clark, Suite 7, Republic,
Washington.
------
Stevens County (Unincorporated Areas) (FEMA Docket No.
7163)
Kettle River--Reach 1 (Near Barstow):
Approximately 9.87 miles upstream of confluence with the
Columbia River........................................... *1,306
Approximately 10.5 miles upstream of confluence with the
Columbia River........................................... *1,310
Approximately 10.86 miles upstream of confluence with the
Columbia River........................................... *1,312
Kettle River--Reach 2 (Near Orient):
Approximately 18.62 miles upstream of confluence with the
Columbia River........................................... *1,389
Approximately 19.17 miles upstream of confluence with the
Columbia River........................................... *1,391
Kettle River--Reach 3 (Near Laurier):
Approximately 27.24 miles upstream of confluence with the
Columbia River........................................... *1,435
Approximately 27.8 miles upstream of confluence with the
Columbia River........................................... *1,440
Approximately 28.26 miles upstream of confluence with the
Columbia River........................................... *1,443
Maps are available for inspection at the Stevens County
Planning Department, 260 South Oak Street, Colville,
Washington.
------------------------------------------------------------------------
(Catalog of Federal Domestic Assistance No. 83.100, ``Flood
Insurance.'')
Dated: March 25, 1996.
Richard W. Krimm,
Acting Associate Director for Mitigation.
[FR Doc. 96-8124 Filed 4-2-96; 8:45 am]
BILLING CODE 6718-04-P
Complete official Federal Register PDF
FR Doc. 96-8121 Radio Broadcasting Services; Cornell, WI
[Federal Register Volume 61, Number 65 (Wednesday, April 3, 1996)]
[Rules and Regulations]
[Pages 14676-14677]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-8121]
-----------------------------------------------------------------------
FEDERAL COMMUNICATIONS COMMISSION
47 CFR Part 73
[MM Docket No. 95-164; RM-8716]
Radio Broadcasting Services; Cornell, WI
AGENCY: Federal Communications Commission.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: Action taken in this document allots Channel 260C3 to Cornell,
Wisconsin, in response to a petition filed by Flambeau Broadcasting Co.
See 60 FR 56034, November 6, 1995. The coordinates for Channel 260C3 at
Cornell are 45-10-56 and 91-12-20. There is a site restriction 4.9
kilometers (3 miles) west of the community. Canadian concurrence has
been obtained for this allotment. With this action, this proceeding is
terminated.
DATES: Effective May 13, 1996. The window period for filing
applications will open on May 13, 1996, and close on June 13, 1996.
FOR FURTHER INFORMATION CONTACT: Kathleen Scheuerle, Mass Media Bureau,
(202) 418-2180.
SUPPLEMENTARY INFORMATION: This is a synopsis of the Commission's
Report and Order, MM Docket No. 95-164, adopted March 19, 1996, and
released March 29, 1996. The full text of this Commission decision is
available for inspection and copying during normal
[[Page 14677]]
business hours in the Commission's Reference Center (Room 239), 1919 M
Street, NW., Washington, DC. The complete text of this decision may
also be purchased from the Commission's copy contractors, International
Transcription Services, Inc., 2100 M Street, NW., Suite 140,
Washington, DC 20037, (202) 857-3800.
List of Subjects in 47 CFR Part 73
Radio broadcasting.
Part 73 of title 47 of the Code of Federal Regulations is amended
as follows:
PART 73--[AMENDED]
1. The authority citation for part 73 continues to read as follows:
Authority: Secs. 303, 48 Stat., as amended, 1082; 47 U.S.C. 154,
as amended.
Sec. 73.202 [Amended]
2. Section 73.202(b), the Table of FM Allotments under Wisconsin,
is amended by adding Cornell, Channel 260C3.
Federal Communications Commission.
John A. Karousos,
Chief, Allocations Branch, Policy and Rules Division, Mass Media
Bureau.
[FR Doc. 96-8121 Filed 4-2-96; 8:45 am]
BILLING CODE 6712-01-F
Complete official Federal Register PDF
FR Doc. 96-8097 Smith River National Recreation Area
[Federal Register Volume 61, Number 65 (Wednesday, April 3, 1996)]
[Rules and Regulations]
[Pages 14621-14634]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-8097]
-----------------------------------------------------------------------
DEPARTMENT OF AGRICULTURE
36 CFR Part 292
RIN 0596-AB39
Smith River National Recreation Area
AGENCY: Forest Service, USDA.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: This final rule implements Section 8(d) of the Smith River
National Recreation Area Act of 1990 and sets forth the procedures by
which the Forest Service will regulate mineral operations on National
Forest System lands within the Smith River National Recreation Area.
This rule supplements existing Forest Service regulations and is
intended to ensure that mineral operations are conducted in a manner
consistent with the purposes for which the Smith River National
Recreational Area was established.
EFFECTIVE DATE: This rule is effective April 3, 1996.
FOR FURTHER INFORMATION CONTACT:
Sam Hotchkiss, Minerals and Geology Management Staff, (202) 205-1535.
SUPPLEMENTARY INFORMATION:
Background
The Smith River National Recreation Area (SRNRA) was established by
the Smith River National Recreation Area Act of 1990 (the Act) (16
U.S.C. 460bbb et seq.). The purpose of the Act is to ensure, ``. . .
the preservation, protection, enhancement, and interpretation for
present and future generations of the Smith River watershed's
outstanding wild and scenic rivers, ecological diversity, and
recreation opportunities while providing for the wise use and sustained
productivity of its natural resources. . . .''
In order to meet the purposes of the Act, Congress directed the
Secretary to manage the SRNRA to provide for a broad range of
recreational uses and to improve fisheries and water quality. The Act
prohibits mining, subject to valid existing rights and limits
extraction of mineral materials to situations where the material
extracted is used for construction and maintenance of roads and other
facilities within the SRNRA and in certain areas specifically excluded
from the SRNRA by the Act.
The SRNRA consists of approximately 300,000 acres of National
Forest System lands in the Six Rivers National Forest in northern
California. The Act divides the SRNRA into eight distinct management
areas and specifies a management emphasis for each. One of these eight
areas is the Siskiyou Wilderness, most of which was designated by
Congress in 1984. The Gasquet-Orleans Corridor was added to the
Siskiyou Wilderness by the Act in 1990. The Act specifies that the
Siskiyou Wilderness is to continue to be managed pursuant to the
provisions of the Wilderness Act.
The Act also designates the Smith River, the Middle Fork of the
Smith River, the North Fork of the Smith River, the Siskiyou Fork of
the Smith River, and the South Fork of the Smith River as components of
the National Wild and Scenic Rivers System and stipulates that they be
managed in accordance with the Act and the Wild and Scenic Rivers Act.
In the event of a conflict between the provisions of these two
statutes, the Act specifies that provisions of the most restrictive
statute apply. Finally, the Act expressly excludes four areas that lie
within the boundary of the SRNRA from compliance with provisions of the
Act.
Mining and prospecting for minerals have been an important part of
the history of the Smith River area since the 1850's. Historically,
mining operations within the Smith River area have been small-scale
placer gold exploration and recovery operations within the bed and
banks of the Smith River and its main tributaries. Panning, sluicing,
and dredging operations occur predominantly during the summer months.
In recent years, large, low-grade, nickel-cobalt resources in the
uplands of the Smith River watershed have attracted the attention of
prospectors. In 1990, there were approximately 5,000 mining claims
covering about 30,000 acres of National Forest System lands within the
SRNRA. By 1995, however, there were only approximately 320 mining
claims covering about 8,000 acres of National Forest System lands in
the SRNRA that met current Bureau of Land Management filing
requirements. In
[[Page 14622]]
contrast to the large number of claims, actual operations were
conducted on only three claims under approved plans of operations in
1995. In addition, there are outstanding mineral rights within the
SRNRA.
In Section 8 of the Act, Congress addressed the extent to which
mineral operations would be authorized within the SRNRA. Section 8(a)
of the Act withdrew as of the effective date of the Act, all federal
lands in the SRNRA from the operation of the mining, mineral leasing,
and geothermal leasing laws subject to valid existing rights. Section
8(b) precludes the issuance of patents for locations and claims made
prior to the establishment of the SRNRA. Section 8(c) of the Act
prohibits all mineral operations within the SRNRA except where valid
existing rights are established. Section 8(c) also prohibits the
extraction of mineral materials such as stone, sand, and gravel, except
if used in the construction and maintenance of roads and other
facilities within the SRNRA and the excluded areas. Finally, under
Section 8(d) the Secretary is to promulgate supplementary regulations
to promote and protect the purposes for which the SRNRA was designated.
On or about November 8, 1994, the largest claimholder in the SRNRA
filed suit against the Department of Agriculture in United States
District Court for the Northern District of California alleging
violations of the Act. California Nickel Corporation v. Epsy, No. C94-
3904 DLJ (N.D. Cal.). Specifically, the suit alleged that the
Department was in violation of the Act by not promulgating regulations
for mineral operations in the SRNRA as required under Section 8(d). The
Forest Service did not dispute that Section 8(d) of the Act required
the promulgation of supplementary regulations for the SRNRA and had, in
fact, made some preliminary progress in developing a regulation prior
to the initiation of this litigation. The case is still pending and the
agency anticipates its dismissal shortly after the publication of the
final rule.
On June 23, 1995, the Forest Service published a proposed rule for
notice and comment in the Federal Register which contained
supplementary regulations for mineral activities on National Forest
System lands in the SRNRA pursuant to Section 8(d) of the Act (60 FR
32633). Seven letters expressing a variety of viewpoints were received
during the 60-day comment period which expired on August 22, 1995.
These letters were from a mining company, several individual
prospectors, an environmental organization, a local resident, and
another interested party. All comments received are available for
review in the Office of the Director, Minerals and Geology Management
Staff, Auditors Building, 4th Floor, 201 14th Street, SW., Washington,
DC, during regular business hours (8 a.m. to 5 p.m.) Monday through
Friday. The Department appreciates the time and energy the reviewers
invested in preparing these letters and articulating their views on
concerns with the proposed rule.
Analysis of Public Comment
Comments on the proposed rule dealt with general issues such as
terminology, noncommercial recreational mineral collecting, civil
rights, property rights, and constitutional protections related to such
rights. In addition, there were several issues raised in the comments
that dealt with specific provisions of the proposed rule. A summary of
the comments and the Department's responses to them follows.
General Comments
1. Omission of the word ``resources'' as used in the Act from the
Supplementary Information. One reviewer noted that the supplementary
information provided in the proposed rule omitted the word
``resources'' from the section of the Act in which Congress articulated
the purpose for which the SRNRA was established. The reviewer believed
the omission was significant because it was not clear that a companion
goal of preservation, protection, enhancement, and interpretation of
the SRNRA is to provide for the wise use and sustained productivity of
the SRNRA's natural resources.
Response: The stated purpose of the Act did include the word
``resources'' as this reviewer noted. The omission of this word from
the preamble of the proposed rule was inadvertent, and the complete
excerpt from Section 4 of the Act, including the word ``resources,''
has been set forth in the preceding ``Background'' section of this
final rule.
2. Disparity between proposed rule and Six Rivers LRMP on the
number of current mining claims in the SRNRA. One reviewer noted that
the supplementary information section of the proposed rule stated that
approximately 5,000 mining claims currently existed in the SRNRA, but
that the June 1995 Final Environmental Impact Statement (FEIS) for the
Six Rivers National Forest Land and Resource Management Plan (LRMP)
identified only 300 current mining claims. The reviewer requested
clarification as to which of these figures is accurate.
Response: The information in the FEIS for the Six Rivers National
Forest LRMP is correct. As of November 23, 1995, approximately 300
mining claims in the SRNRA met Bureau of Land Management filing
requirements. This is a significant reduction from the approximately
5,000 mining claims that existed in the SRNRA in 1990 and this
reduction was not reflected in the preamble to the proposed rule.
However, it has been corrected in the ``Background'' section of this
final rulemaking.
3. Lack of any new substantive standards in addition to those in
the current Forest Service mineral regulations. One reviewer observed
that the proposed rule set forth no additional substantive standards
for environmental protection beyond those set forth in 36 CFR part 228,
subpart A, and requested that if additional substantive standards are
subsequently added, they be articulated with greater clarity.
Response: The Department eschews attempts to characterize the
standards in the proposed rule as ``substantive'' or ``procedural''
because such labels are fraught with subjectivity, and no useful
purpose will be served by specifying whether the standards in the
proposed rule are substantive or procedural.
4. Characterization of nickel-cobalt resources as ``low grade.''
One reviewer objected to the characterization of the nickle-cobalt
resources in the uplands of the Smith River watershed as ``low-grade''
to the extend that this characterization suggests that the resources
are either insignificant or unworthy of development and requested that
the characterization ``low-grade'' be deleted from the preamble.
Response: ``Low grade'' is a phrase commonly used within the mining
industry to describe situations where the anticipated percentage of
elements in a given area is less than the percentage of the same
elements currently being mined elsewhere. This is an apt description of
the nickel-cobalt resources in the SRNRA. In fact, the corporation
holding most of the claims in the portion of SRNRA where the nickel-
cobalt resources are located has previously acknowledged that the grade
of the nickel-cobalt resources in the SRNRA is less than the grade of
nickel-cobalt resources being mined in other parts of the world.
5. Need for supplementary regulations for mineral operations to
protect SRNRA. One reviewer stated that there is no need for additional
regulations of mineral operations in the SRNRA since the existing
regulations governing these
[[Page 14623]]
activities provide ample protection to the SRNRA and its resources.
Response: The issue of whether additional regulation of mineral
operations is necessary in the SRNRA was conclusively determined by
Congress in Section 8(d) of the Act. This provision specifically states
that ``the Secretary [of Agriculture] is authorized and directed to
issue supplementary regulations to promote and protect the purposes for
which the [SRNRA] is designated.'' It is not within the discretion of
the Department to evaluate whether such regulations are necessary; the
Act obligates the Department to issue them.
6. Duplication of current mining law and Bureau of Land Management
and California Fish and Game Department regulations. One reviewer felt
that the proposed rule is duplicative of current mining law and BLM and
California Department of Fish and Game regulations. Although the
reviewer made no specific recommendation based on this observation, the
agency has construed it as a suggestion that the supplementary
regulations for mineral operations in the SRNRA are unnecessary.
Response: As noted in the previous response, it is not within the
Department's prerogative to determine whether supplementary regulations
for mineral operations in the SRNRA are necessary if Congress
specifically directs the agency to promulgate them. Furthermore,
although the reviewer failed to identify which laws or BLM or
California Department of Fish and Game regulations were duplicative of
the proposed rule, the Department does not believe that such
duplication exists.
7. Applicability of rule to all uses in the SRNRA, not just mineral
operations. One reviewer noted that the provisions of the Act directing
the Forest Service to promulgate regulations were not limited to
mining. Therefore, the reviewer concludes that the agency should have
expanded the subject matter of the proposed rule to address all uses
occurring in the SRNRA.
Response: The reviewer correctly notes that Section 8(d) of the Act
makes no specific reference to mineral operations in the SRNRA as the
subject of the supplementary regulations. However, Section 8 is
entitled ``Minerals'' and subsections (a), (b), and (c) all involve the
administration of minerals and mining activities in the SRNRA. It is,
therefore, reasonable for the agency to infer that the specific subject
matter of the regulations required by Section 8(d) of the Act involves
mineral operations in the SRNRA.
This inference is supported by the Act's legislative history. Early
versions of the legislation to establish an SRNRA contained an outright
prohibition on all mining activities in the SRNRA. Due to concerns
associated with the cost entailed by a blanket prohibition, the
legislation was subsequently amended as it moved through the
legislative process, to prohibit only those mining activities in the
SRNRA where valid existing rights had not been established as of the
date of enactment of the Act. Where valid existing rights had been
established, the legislation authorized the continuation of mineral
development activities, provided that these activities would be subject
to supplementary regulations designed to ensure the protection of the
resource values for which the SRNRA was designated. One of the
principal sponsors of the SRNRA legislation explained:
With regard to mining, the amendments would give explicit
recognition to the rights associated with valid existing claims, and
direct the Secretary to issue supplementary regulations designed to
`promote and protect' the purposes for which the recreation area is
created. Although I remain concerned about the potential for
destructive mining, I am hopeful that the supplemental regulations
will address these concerns. * * * 136 Cong. Rec. H13045, 13046
(Oct. 26, 1990) (Statement of Rep. Bosco).
Since limiting the scope of this rule to mineral operations in the
SRNRA is fully consistent with the Act and its associated legislative
history, the Department declines to expand the scope of this rule to
address other activities occurring within the SRNRA.
8. Improper withdrawal procedures after enactment of the Act. One
reviewer felt that certain procedures for the withdrawal of federal
lands from the operation of federal mining laws were not complied with
in the SRNRA following the enactment of the Act. According to this
reviewer, in order to legally withdraw an area, the Bureau of Mines
must evaluate existing mining claims and estimate the mineral value of
the area. Claim holders who disagree with the findings of the Bureau of
Mines should be allowed to appeal these findings and conduct their own
discovery on appeal. This reviewer concluded that claim holders in the
SRNRA should be allowed to perform additional discovery before
submitting their plans of operation and proof of discovery, since this
withdrawal procedure was not followed.
Response: Section 8 of the Act expressly withdrew all federal lands
within the SRNRA from the operation of the mining law subject to valid
existing rights. Therefore, no additional procedures must be followed
by any federal agency to effectuate this withdrawal.
9. Limiting operations to 5 months per year. One reviewer contends
that the proposed rule unreasonably restricts operations in the SRNRA
to not more than five months a year and thus prevents operators from
making a living.
Response: There was no provision in the proposed rule which imposed
a limit on the maximum number of months during which mineral operations
could be conducted in the SRNRA, nor is there such a provision in the
final rule.
10. Exorbitant bonding. One reviewer contended that the requirement
for a plan of operations includes exorbitant bonding which would
effectively eliminate the prudent operator/claimant from mining.
Response: There was no provision in the proposed rule which
established a bonding requirement. The only applicable bonding
provisions for mineral operations in the SRNRA are those already set
forth in the agency's general mining regulations at 36 CFR 228.13,
which of course, do apply to mining operations in the SRNRA.
11. Exemption of ``recreational mining''. Three reviewers noted
that the proposed rule did not distinguish between individuals who
engage in mineral development activities for recreational reasons as
opposed to those who engage in such activities for business purposes.
These reviewers objected to any attempt to prohibit or regulate
``recreational'' mineral development activities in the SRNRA based
upon, among other things, the history of this type of activity in the
SRNRA and the value in preserving and interpreting it, the Act's
recognition of a broad range of recreation uses in the SRNRA,
representations made by government officials during deliberations of
SRNRA legislation that such ``recreational'' activities would be
unaffected by the passage of the Act, and the fact that permission has
been granted for similar activities on the Rogue River National
Recreation Area.
Response: The reviewers correctly observed that the proposed rule
did not distinguish between mineral development activities engaged in
for pleasure as opposed to mineral development activities engaged in
for profit. The reason the proposed rule did not make such a
distinction is, simply stated, that the applicable law does not allow
for it. Under the United States mining laws, federal land is either
open to mineral entry or it is withdrawn from such entry. Therefore,
once an area like
[[Page 14624]]
the SRNRA is withdrawn from the operation of the mining laws subject to
valid existing rights, the Department has no authority to allow for the
continuation of mineral development activities, unless the Forest
Service can verify that valid existing rights have been established.
This applies even if the individual is mining for personal enjoyment
rather than financial gain and even if the impact on the lands and
resources of the SRNRA is minimal.
With respect to the reviewers' observations in support of a
continuation of ``recreational'' mineral collecting activities in the
SRNRA, the following should be noted. First, the historical
significance of ``recreational'' mineral activities in the SRNRA cannot
controvert the mining laws of the United States or the Act's express
prohibitions against mining. Second, if government officials made
representations that legislation to designate the SRNRA would not
effect this activity, such statements cannot controvert the unambiguous
prohibitions in the Act. If Congress intended to create an exception
for the SRNRA for noncommercial mineral collecting activities, it could
have included such a provision in the Act. Third, Section 2 of the Act
lists wilderness, water sports, fishing, hunting, camping, and
sightseeing as examples of specific recreational pursuits that already
occur in the SRNRA and for which the area was designated. While it is
not exhaustive, the list in Section 2 of the Act is instructive in its
omission of mining, sluicing, and panning from the other, more
traditional types of recreational activities. Fourth and finally, there
is no Rouge River National Recreation Area. There is, however, a Rouge
Wild and Scenic River that was designated in 1968 and is administered
under the Wild and Scenic Rivers Act. A withdrawal provision similar to
Section 8 of the Act is contained in Section 9(a)(iii) of the Wild and
Scenic Rivers Act and applies only to those federal lands within
segments of the Rogue River Wild and Scenic River classified as
``wild.'' Federal lands within segments of the Rogue River Wild and
Scenic River classified as ``scenic'' or ``recreational'' are not
subject to this provision of the Wild and Scenic Rivers Act and hence
it may be permissible to engage in this type of activity in these
areas.
In summary, the only mineral development activities that may occur
in the SRNRA are those for which valid existing rights have been
established or have been authorized by a mineral materials contract or
permit. Neither the subjective intent of the individual nor the impact
of the activity may be used to justify mineral development activities,
in the absence of valid existing rights or a mineral materials contract
or permit.
12. Length of the proposed rule. One reviewer stated that the
length of the proposed regulations, 30 pages--twice the length of the
15-page Act, was excessive.
Response: The proposed rule as printed in the Federal Register was
only seven pages long, and of those seven pages, only three contained
proposed regulatory text; the balance was background and explanatory
materials. The agency does not consider the length of this regulation
to be excessive.
13. Allowing patenting of claims. One reviewer contended that there
is no bona fide reason to preclude the issuance of patents in the SRNRA
in light of the existing regulations which adequately protect the area.
Response: The proposed rule did not deal with the issuance of
patents. That matter was definitively resolved in Sections 8(a) and (b)
of the Act which withdrew the SRNRA from patenting under the mining
laws and prohibited patenting under the mining laws for locations and
claims made before the date of enactment of the Act. This rule cannot
authorize the issuance of patents in contravention of the Act.
14. Prohibitions of all mining activities on ``high ground''. One
reviewer stated that the proposed rule would accommodate only ``water
mining'' in the SRNRA and would prohibit ``high ground mining''
everywhere else. This reviewer further stated that such a prohibition
would affectively confiscate 94% of the area currently available to
this reviewer for mining operations.
Response: There was no mention of ``water mining'' or ``high ground
mining'' classifications in the proposed rule and hence there was no
prohibition against such activities per se. The only prohibition
against mineral operations addressed in the Act is when the operator is
unable to establish valid existing rights as of the date of enactment
of the Act. This prohibition was merely reiterated in the proposed rule
and is retained in the final rule.
15. Recognition of an existing large-scale mining operation as an
appropriate activity within the SRNRA. One reviewer, the largest
claimholder in the SRNRA, stated that the proposed rule should
recognize its large-scale mining operation as an appropriate activity
within the SRNRA.
Response: Although it is unclear what the reviewer meant by
recognition as an ``appropriate activity,'' it would be entirely
arbitrary for the Forest Service to single out the mining operations of
one company for special treatment of any kind. There is nothing in the
Act to suggest that Congress intended the Forest Service to evaluate
mining operations in the SRNRA differently depending on the party who
may hold the valid existing rights. As noted above, the SRNRA was
established for the purpose of ``ensuring the preservation, protection,
enhancement, and interpretation for present and future generations of
the Smith River watershed's outstanding wild and scenic rivers,
ecological diversity, and recreation opportunities while providing for
the wise use and sustained productivity of its natural resources.''
These supplementary regulations are intended to ensure that all
mining operations in the SRNRA, not just some of them, are carried out
in conformance with the Act and in such a way as to preserve, protect,
and enhance the values for which the SRNRA was designated.
16. Applicability of California's Surface Mining and Reclamation
Act to mining on SRNRA lands. One reviewer recommended that the rule
should specifically make reference to the applicability of California's
Surface Mining and Reclamation Act (SMARA) to federal lands in the
SRNRA based on a 1992 Memorandum of Understanding (1992 MOU) executed
by and between the State of California, the Department of the Interior,
and the Department of Agriculture. This reviewer also suggested that
the rule should specify that the Forest Service would assume financial
and administrative responsibility for the implementation of SMARA if
the County of Del Norte fails to properly discharge its duties under
this statute.
Response: It is unnecessary to include a provision in this rule
which singles out the applicability of the California Act to mining
operations in the SRNRA. The rule already provides that mineral
operations in the SRNRA are subject to all applicable laws,
regulations, policies, and procedures governing these activities on
National Forest System Lands. The 1992 MOU is merely one of the
``policies and procedures'' currently governing the administration of
mining operations in the SRNRA. Consequently, it is unnecessary to
include a separate provision in this rule which includes a specific
reference to the California Act.
The agency also declines to include a provision in the rule under
which it would assume the administrative and financial obligations of
Del Norte
[[Page 14625]]
County, if the county is unable to carry out its responsibilities under
the State surface mining statute. Such a commitment of Forest Service
staff and financial resources without assurance of Federal funds for
such purposes would be in violation of the Anti-Deficiency Act, 31
U.S.C. 1341. This Act prohibits federal agencies from ``mak[ing] or
authoriz[ing] an expenditure or obligation exceeding an amount
available in an appropriation or fund for the expenditure or
obligation.''
17. Civil Rights Impact Analysis. One reviewer felt that the agency
was required by Chapter 30 of Forest Service Handbook 1709.11 to
complete a Civil Rights Impact Analysis, since he believes that this is
a major action involving quite a number of concerned citizens.
Response: Pursuant to Departmental Regulation (DR 4300-4) a Civil
Rights Impact Analysis is required only for major policy actions when
the consequences of those actions ``will negatively and
disproportionately affect minorities''. This rulemaking is determined
not to have an adverse or disproportionate effect on minorities.
18. Compliance with NEPA in developing the regulations. One
reviewer felt that the agency failed to comply with the National
Environmental Policy Act (NEPA) and should have prepared an
environmental impact statement (EIS) to verify the need for the
proposed regulation.
Response: Environmental impact statements are prepared where there
may be significant effects resulting from the proposed action. Service-
wide procedural regulations will not cause significant environmental
effects and generally can be categorically excluded from documentation
in an EIS or environmental assessment except where there are
extraordinary circumstances (Forest Service NEPA procedures at FSH
1909.15, Ch. 30, 57 FR 43180 (Sept. 18, 1992)). After further
consideration, the Forest Service has determined that the
geographically specific nature of the Smith River NRA regulations
cannot be considered applicable Service-wide and thus are not subject
to a categorical exclusion. Accordingly, an Environmental Assessment
and Finding of No Significant Impact have been prepared on this final
rule.
19. Intent to harass miners and deter mining operations in the
SRNRA. One reviewer asserted that the agency would use the rule to
harass miners and deter mining by burdening claimants with unnecessary
and expensive procedures and that this is the real intent of the rule,
rather than environmental protection.
Response: The Forest Service respects every individual's right to
his or her opinion, but it categorically rejects any assertion that the
purpose of this rule is to harass miners or deter legitimate mining
operations where operators have established valid existing rights. As
stated at the outset, the purpose of this rule is to develop standards
for mining operations in the SRNRA that will ensure that the fishery,
scenic, and other values for which the area was designated will be
protected and enhanced in perpetuity.
20. Taking of private property without just compensation. One
reviewer disagreed with the statement in the proposed rule that the
proposed rule does not have a takings implication. Another reviewer
contended that the withdrawal of federal lands from the operation of
the mining laws effected a taking.
Response: The Fifth Amendment states in part ``. . . nor shall
private property be taken for public use without just compensation.''
Executive Order 12630 requires the agency to evaluate proposed agency
actions to determine whether it presents the risk of a taking. The
proposed rule explained that the Forest Service had concluded that the
promulgation of this regulation did not present a takings risk.
One reviewer disputed the Forest Service's conclusion and, in
essence, contended that the mere promulgation of this rule has taken
his property without compensation and thus affected a taking. The
Supreme Court has held that in order for the promulgation of a
regulation to effect a taking, the property owner must demonstrate that
the regulation on its face, rather than as applied, prevents the
economically viable use of a compensable property interest. In this
instance, the rule itself does not preclude economically viable use of
mining claims in the SRNRA where valid existing rights have been
established. Rather, it merely requires the operator to conform his
operations to certain standards. None of these standards, individually
or collectively, would deprive an operator of the economically viable
use of his or her valid existing rights.
The other reviewer is incorrect in his assertion that the mere
withdrawal of federal lands in the SRNRA from the operation of the
mining laws effected a taking. Because the withdrawal language in the
Act specifically stated that it was subject to valid existing rights,
no taking of private property interests was effected by this measure.
The withdrawal merely reflected Congress' decision to prohibit the use
of National Forest System lands in the SRNRA for mining purposes. In
other words, except where an operator can establish valid existing
rights, mining is no longer one of the uses for which the National
Forest System lands in the SRNRA will be managed. Congress' authority
to prescribe the management of federal lands is derived from the
Property Clause of the United States Constitution, Art. IV, Section 3,
cl. 2, which vests in it the power to ``dispose of and make all needful
rules and regulations respecting the territory or other property
belonging to the United States.'' The Property Clause has been
construed expansively. The Supreme Court has on more than one occasion
stated that ``. . . the power over the public land thus entrusted to
Congress [under the Property Clause] is without limitations.''
In this case, the withdrawal of federal land in the SRNRA from the
operation of the mining laws subject to valid existing rights is merely
an example of Congress exercising its authority under the Property
Clause to prescribe how the federal land in the SRNRA will be
administered. This provision cannot effect a taking because no private
property interests were impacted by the withdrawal.
Specific Comments on Proposed Subpart G of 36 CFR Part 292
The following is a discussion of comments that were received
pertaining to specific sections of the proposed rule and the resulting
changes that have been made in the final rule. The final rule contains
only two minor changes from the text of the proposed rule. The first is
a modification of the date in the definition of ``valid existing
rights'' to reflect the different dates that the Smith Wild and Scenic
River, the Siskiyou Wilderness, and the SRNRA were established. Because
federal lands within these three areas were withdrawn from the
operation of the mining and mineral leasing laws at different times,
the dates by which valid existing rights must be established are
different. The second change corrects an improper citation to 36 CFR
228.5(a) in Sec. 292.63(d). Both of these changes are addressed in more
detail in the section-by-section analysis that follows.
No comments were received on Sec. 292.60--Purpose and Scope,
Sec. 292.65--Operating Plan Requirements, Sec. 292.66--Operating Plan
Acceptance, and Sec. 292.67--Mineral Material Operations. Consequently,
the final rule adopts the text of these sections as proposed, and they
are not discussed further in this analysis.
[[Page 14626]]
Section 292.61. Definitions
The proposed rule defined certain terms that are either not defined
in 36 CFR part 228, subpart A, or have special meaning as used in this
rule.
Comment: The ``operating plan'' definition is erroneously applied.
One reviewer contended that the definition of ``operating plan'' was
erroneously confined to the exercise of outstanding mineral rights.
Response: The term ``operating plan,'' as defined in this section
is used only in those portions of the rule dealing with outstanding
mineral rights (Secs. 292.65 and 292.66 and portions of Sec. 292.68).
The term ``plan of operations'' is used only in those portions of the
rule dealing with operations on claims where valid existing rights have
been established (Secs. 292.62, 292.63, and 292.64 and portions of
Sec. 292.68). These two terms were purposely used in the proposed rule
to differentiate operations on mining claims with valid existing rights
from operations on lands with outstanding mineral rights. Moreover, the
use of the terms ``operating plan'' and ``plan of operations'' in the
proposed rule is consistent with the terminology in the agency's mining
regulations at 36 CFR part 228, subpart A, and in the agency's
directive system. Accordingly, no changes have been made in the final
rule in response to this comment.
Comment: The Forest Service is without authority to alter the
General Mining Laws in defining valid existing rights. One reviewer
agreed with the definition of valid existing rights to the extent that
it merely requires that the claimant have had a valid mining claim
pursuant to the General Mining Laws as of the date of passage of the
Act and has not abandoned it or otherwise failed to make appropriate
filings and pay the annual maintenance fees. The reviewer objected,
however, to other aspects of the definition which the reviewer alleged
would alter the General Mining Laws. In particular, the reviewer
contended that paragraph (4) of the definition of ``valid existing
rights'' in the proposed rule which required continuity of the valuable
mineral deposit even after the date of withdrawal is impermissible
under the General Mining Laws.
This reviewer recommended that the definition of ``valid existing
rights'' be revised and confined to the ``technical aspects'' of
maintaining a claim's validity following the withdrawal of the SRNRA.
This reviewer felt that the definition should not include within its
scope any evaluation of the claim with respect to discovery of a
valuable mineral as of the date of determination of valid existing
rights.
Response: As an initial matter, it should be noted that there is no
definition of ``valid existing rights'' in the General Mining Laws. The
definition of ``valid existing rights'' (to the extent one exists), is
largely the product of judicial and administrative interpretations of
the General Mining Laws. The definition of ``valid existing rights'' in
this rule is fully consistent with the General Mining Laws, relevant
case law, and administrative interpretations. These authorities have
long held that in order to establish valid existing rights, a mining
claim must include the discovery and location of a valuable mineral
deposit at the time of a withdrawal. In addition, these authorities
have also held that in order to retain valid existing rights, an
operator must comply with certain filing requirements, pay nominal
fees, and the mineral deposit must remain valuable. The exhaustion of a
mineral deposit or loss of its marketability may lead to a finding that
the operator no longer possesses valid existing rights. Since the Act
withdraws all federal lands from the operation of the general mining
laws subject to valid existing rights, it is not within the agency's
discretion to authorize mineral operations within the SRNRA if the
operator can no longer prove that he or she possesses valid existing
rights.
Comment: The date by which valid existing rights must be
established for claims in the Siskiyou Wilderness and wild segments of
the Smith Wild and Scenic Rivers is different from the date by which
valid existing rights must be established for claims in the rest of the
SRNRA.
Response: The proposed rule's definition of ``valid existing
rights'' required operators to establish a valid mining claim in the
SRNRA as of November 16, 1990. This is the date on which (1) The Act
became law and (2) the federal land within the SRNRA was withdrawn from
the operation of the mining and mineral leasing laws. The respondent is
correct that this date is not accurate when applied to claims in wild
segments of the Smith Wild and Scenic River and the Siskiyou
Wilderness.
In considering this comment, the Department recognized that the
proposed rule failed to take into account that some of the federal land
within the SRNRA was withdrawn from the operation of the mining and
mineral leasing laws prior to the enactment of the Act and that the
establishment of valid existing rights varies depending on the date
that the land was withdrawn. Both the Smith Wild and Scenic River
(including the Middle Fork, North Fork, and South Fork and tributaries
thereto) and the Siskiyou Wilderness are located within the SRNRA, but
their designations predate the designation of the SRNRA. The Smith Wild
and Scenic River was designated on January 19, 1981 and the Siskiyou
Wilderness was designated on September 28, 1984. At the time of these
designations, federal lands within wild segments of the Smith Wild and
Scenic River and the Siskiyou Wilderness were withdrawn from the
operation of the mining and mineral leasing laws. Consequently, in
order to establish valid existing rights in wild segments of the Smith
Wild and Scenic River or the Siskiyou Wilderness, the operator must
demonstrate that there was a valid claim at the time of the designation
of these areas, not at the time of the designation of the SRNRA.
One final point of clarification regarding the Siskiyou Wilderness
is necessary. Though originally established on September 28, 1984, the
Act added the Gasquet-Orleans Corridor to the Siskiyou Wilderness on
November 16, 1990. Consequently, in order to determine whether valid
existing rights have been established within the Gasquet-Orleans
Corridor of the Siskiyou Wilderness, the operative date remains
November 16, 1990.
In the final rule, the definition has been modified to reflect that
the dates by which valid existing rights must be established for claims
in the SRNRA will vary depending on where the claim is located. For
claims on wild segments of the Smith Wild and Scenic River, valid
existing rights must be established as of January 19, 1981. For claims
in the Siskiyou Wilderness (minus the Gasquet-Orleans Corridor
addition), valid existing rights must be established as of September
28, 1984. Finally, for claims in the rest of the SRNRA including, but
not limited to, ``scenic'' and ``recreational'' segments of the Smith
Wild and Scenic River and the Gasquet-Orleans Corridor addition to the
Siskiyou Wilderness, the final rule makes clear that valid existing
rights must be established as of November 16, 1990.
Section 292.62, Plan of Operations Supplementary Requirements
The proposed rule specified when a plan of operations is required
for activities within the SRNRA and included suction dredge operations.
Paragraph (b) of this proposed section would require as part of the
plan of operations information necessary to evaluate the operator's
claim of valid
[[Page 14627]]
existing rights and information necessary to evaluate the impacts of
the proposed mining operation on SRNRA resources and determine the
appropriate standards to mitigate and reclaim the affected areas.
Comment: Additional regulations and plans of operations should not
be required for suction dredging. One reviewer contends that subsurface
suction dredging should not be subject to these regulations or require
the preparation of a plan of operations, as the activity is already
well regulated and even benefits the SRNRA.
Response: Locatable mineral operations on National Forest System
lands are primarily governed by the current locatable mineral
regulations at 36 CFR part 228, subpart A. For the 1995 operating
season, two plans of operations for suction dredging in the SRNRA were
received, and both were approved. In the past, suction dredging
operations in the SRNRA have been authorized by plans of operations,
notices of intent, and, occasionally, without any written authorization
at all. As noted previously, in establishing the SRNRA, Congress
specified that all mineral operations, including suction dredging, are
prohibited subject to valid existing rights. Further, even in those
instances where an operator establishes valid dredging rights, the
mineral operations would still be subject to regulation to ensure that
the values for which the SRNRA was established were protected and
enhanced.
By requiring a plan of operations for suction dredging activities,
the Forest Service can accomplish two objectives. First, the Forest
Service can verify that the operator engaging in the suction dredging
operations possesses valid existing rights. Second, the Forest Service
can ensure that the impacts of the suction dredging operations are
minimized to the extent practicable in order to protect and preserve
the values for which the SRNRA was established. The Department believes
that in order to protect the unique fishery and other resource values
of the SRNRA, careful and considered evaluation of all suction dredging
activities is necessary. The best mechanism by which such evaluation
can occur is through a plan of operations. Therefore, no changes were
made in the final rule to exempt suction dredging activities from the
purview of the plan of operations requirements.
Section 292.63, Plan of Operations Approval
Upon the submission of a plan of operations in accordance with
Sec. 292.62, this section of the proposed rule first directed the
authorized officer to review it to determine whether the operator has
established valid existing rights. If valid existing rights have not
been established or if the plan of operations contains insufficient
information in this regard, the proposed rule directed the authorized
officer to notify the operator and request further information to
assist in the determination. If valid existing rights are established,
the proposed rule directed the authorized officer to so notify the
operator and commence reviewing the operational aspects of the proposed
mineral development activity in accordance with 36 CFR 228.5. If these
requirements are met, this provision would authorize the approval of
the plan of operations for a term not to exceed five years. The
proposed rule also authorized the modification of approved plans of
operations to take into account resource impacts or mineral development
activities that were not contemplated in the original plan.
Comment: Requiring claim holders to prove their claims may deprive
individuals of property rights guaranteed under the 1872 Mining Law.
One reviewer asserted that the proposed rule's requirement that a claim
holder prove that a valuable mineral is present in sufficient quantity
gives the Forest Service too much discretion and could lead to the
elimination of individual property rights guaranteed in the Mining Law
of 1872.
Response: In order to establish valid existing rights under the
General Mining Law of 1872, a claimant must: (1) discover a valuable
deposit of a locatable mineral on lands open to the operation of the
mining laws; (2) locate a claim on the valuable deposit; (3) monument
the claim as required by state law; (4) do annual assessment work or
pay holding fees; and (5) file various documents with the Bureau of
Land Management. Furthermore, once established, the claimant has a
continuing obligation to maintain the claim and discovery of a valuable
mineral deposit in order to preserve its valid existing rights status.
The system devised under the 1872 Mining Law for establishing valid
existing rights only applies if the federal land is open to mineral
entry. When Congress enacts legislation that withdraws federal land
from the operation of the mining laws, the valid existing rights that
have been established as of the date of withdrawal in accordance with
the above are generally protected providing that the mineral deposit
remains valuable. However, if valid existing rights have not been
established by this time, they may not be established thereafter.
Federal land in the SRNRA has been withdrawn from the operation of
the mining laws on three separate occasions. The first occurred on
January 19, 1981 when the Smith Wild and Scenic River was designated.
The second occurred on September 28, 1984, when the Siskiyou Wilderness
was designated. The third occurred on November 16, 1990, when the SRNRA
was established.
The provision of the proposed rule at issue here simply requires
that a claimant submit information which will enable the Forest Service
to verify whether valid existing rights were established prior to the
date of the withdrawal of federal land and, if so, whether claimant has
maintained the claim and discovery of a valuable mineral deposit. In
those instances where valid existing rights have been established, the
Forest Service will authorize the associated development activities in
accordance with these and other applicable regulations. At present, the
agency would contemplate acquiring an operator's valid existing rights
only if the proposed mineral development activities could not be
conducted without unacceptable impacts to fishery and other resources
for which the SRNRA was established.
It should be noted, that if valid existing rights have not been
established an accordance with federal law, the Forest Service is
legally obligated to prohibit further mineral development activities
associated with these claims.
The process set forth in the proposed rule to evaluate the
information regarding valid existing rights does not vest the agency
with unbridled discretion to eliminate valid existing rights if the
evidence provided confirms that valid existing rights have been
established. Forest Service certified mineral examiners conduct field
reviews and analyze information to form conclusions on the evidence of
valid existing rights; their reports are reviewed by certified review
examiners. Consequently, no change was made in the final rule in
response to this comment.
Comment: There is a conflict of interest if the Forest Service goal
is to eliminate mining, and the authorized officer has authority to
determine validity of claims. One reviewer stated that if the goal of
the Forest Service is to eliminate mining in the SRNRA, the Forest
Service authorized officer would have a conflict of interest making
valid existing rights determinations for mining claims located within
the SRNRA.
[[Page 14628]]
Response: The goal of the Department in promulgating this rule is
not to eliminate mining in the SRNRA. The goal of the Department in
promulgating this rule is to comply with the Act and to allow the
Forest Service to administer the SRNRA in a manner consistent with the
purposes for which it was established. In making valid existing rights
determinations, the agency strives to establish a system which provides
for prompt, efficient, and accurate determinations. No conflict of
interest implications are presented by this rule.
Comment: The rule should authorize the agency to modify a plan of
operations. One reviewer felt that the proposed rule should expressly
state that the Forest Service can initiate modification of a plan of
operations, even though such authority exists in the agency's current
regulations at 36 CFR part 228, subpart A.
Response: The proposed rule, at 36 CFR 292.60(c), specifically
provided that other regulations applicable to the administration of
National Forest System lands would continue to apply to the SRNRA,
unless there was a conflict between them. Current rules at 36 CFR
228.4(e) authorize the Forest Service to request an operator to furnish
a proposed modification of the plan of operations that addresses ways
of minimizing a significant disturbance of surface resources not
anticipated or foreseen when the plan of operations was originally
approved. Nothing in the proposed rule conflicts with this provision;
consequently, it remains in force and is applicable in the SRNRA.
Therefore, there is no need to restate that the agency can initiate
modification of a plan of operations in this rule.
Comment: The rule should include set timeframes for an initial
response to an operator's submission of a plan of operations. One
reviewer felt that the rule should include a provision requiring the
agency to notify an operator within 30 days as to the completeness of
the information provided on valid existing rights. This reviewer also
encouraged the Forest Service to adopt a provision requiring immediate
acknowledgement of receipt of a plan of operations.
Response: It would be inappropriate to include a provision in the
rule requiring the agency to notify the operator within thirty days as
to whether all the necessary information to evaluate a plan of
operations has been submitted. The time necessary to review the
information for completeness depends on several factors including, but
not limited to, the amount of information to review in the plan of
operations, other plans of operations already scheduled for review, the
time of year when the plan of operations is received, and the
availability of Forest Service certified mineral examiners to conduct
the reviews.
Since 1991, the Six Rivers National Forest has established
priorities for scheduling the review of proposed operations for valid
existing rights as follows: (1) highest priority cases with
unauthorized residential occupancy; (2) proposed activities on claims
with known potential for significant resource disturbance; (3) proposed
activities within the Siskiyou Wilderness and ``wild'' portions of
designated Wild and Scenic Rivers; (4) proposed activities within the
Middle Fork/Highway 199 Management Area; and (5) all other proposed
activities. Once a mineral examination is scheduled in accordance with
the above, its priority is not changed.
It is difficult and unrealistic to establish rigid timeframes for
notifying operators of the completeness of the information submitted in
their plan of operations due to the relatively short season during
which field examinations may be conducted. For example, suction dredge
field work must be done during the season prescribed by the California
Department of Fish and Game.
In summary, due to current workload, weather, and other
circumstances beyond the control of the agency, the time required for
reviewing plans of operations for completeness, and the limited staff
and budget to conduct mineral examinations, it is impracticable to
establish a rigid deadline in this rule for notifying operators as to
whether the information contained in their plans of operations
regarding valid existing rights is complete.
The Forest Service also believes that it is unnecessary to include
a specific provision in this rule requiring the agency to acknowledge
receipt of a plan of operations submitted for review. If an operator
believes that acknowledgment of receipt of a plan of operations is
important, he or she may send it via registered or certified mail,
return receipt requested.
Comment: Time limitations from 36 CFR 228.5 for reviewing a plan of
operations should be expressly incorporated into the rule. One reviewer
contended that the proposed rule eliminated the time limitations set
forth in 36 CFR 228.5 for reviewing plans of operations. This reviewer
requested that the rule be modified to specifically incorporate the
timeframes in 36 CFR 228.5 for reviewing a plan of operations once the
valid existing rights determination is complete.
Response: The Department disagrees with this reviewer. The proposed
rule at Sec. 292.60 made clear that plans of operations in the SRNRA
are subject to 36 CFR part 228, subpart A, unless specifically exempted
by these regulations. While the agency will make every effort to
process plans of operations as expeditiously as possible, the
Department has made no changes to the text of this section in the final
rule.
Comment: The Forest Service authorized officer lacks the legal
authority to make binding determinations regarding valid existing
rights. On reviewer contends that the Forest Service has exceeded its
authority under the General Mining Laws by including a provision in the
proposed rule which arrogates unto itself the authority to make
``binding determination as to whether the operator has a valid mining
claim.'' The reviewer states that this authority resides only in the
Secretary of the Interior pursuant to the General Mining Laws.
Response: The Department of the Interior has primary jurisdiction
to determine the validity of mining claims on public lands. However,
the Forest Service need not await the outcome of a validity
determination by the Secretary of the Interior in cases where an
individual asserts a mining claim on National Forest System lands in
bad faith. In such cases, the Forest Service may eject the individual
as a trespasser in conformance with its authority under the Organic Act
and other statutes which require the agency to regulate the occupancy
and use of National Forest System lands to prevent their destruction.
Since 1957, the Forest Service has been conducting validity
determinations involving mining claims on National Forest System lands
in accordance with a Memorandum of Understanding (1957 MOU) with the
Bureau of Land Management. Under the 1957 MOU, where mining claims
involve National Forest System lands, the Forest Service conducts field
examinations, writes reports, and makes determinations on valid
existing rights. Forest Service validity determinations may be reviewed
by the Department of the Interior which is the final administrative
arbiter of the dispute.
The proposed rule did not claim to vest the Forest Service with the
authority to make ``binding'' validity determinations involving mining
claims in the SRNRA. Rather, this rule is consistent with the current
agency practice elsewhere throughout the National Forest System in
conformance with the 1957 MOU. With the exception
[[Page 14629]]
of mining claims that are asserted in bad faith, validity
determinations by the Forest Service may be reviewed by the Department
of the Interior as the final administrative arbiter of the dispute.
Therefore, no change has been made to the text of the final rule as a
result of this comment.
Comment: The rule should include provisions requiring prompt
notification to the operator of Forest Service determinations of
insufficient evidence of valid existing rights and the agency's
recommendation of contest action. One reviewer felt that if the
authorized officer determines that valid existing rights have not been
established, the rule should specifically require the Forest Service to
immediately request BLM to initiate a contest action and to notify the
operator of this request.
Response: The proposed rule contained a provision requiring the
authorized officer to notify the operator in writing if, upon review of
the information submitted as part of the plan of operations,
insufficient evidence of valid existing rights was presented. Since
mining operations can only take place in the SRNRA if valid existing
rights have been established, it would be incumbent upon the Forest
Service to forward its findings and determination to the Bureau of Land
Management with a recommendation for contest action if the operator
persisted with plans to conduct mineral operations in the SRNRA.
Obviously, contest actions would be unnecessary if the operator decides
not to go forward with any mineral operations and abandons his or her
claim(s) following the Forest Service's determination.
The Department believes that the Forest Service's standard
procedures already provide for prompt request for contest action and
timely notice to the operator of same sought by this reviewer and,
hence, no change has been made in the final rule.
Comment: Potential for ``double jeopardy'' on proof of valid
existing rights. One reviewer felt that the proposed rule would give
the Forest Service ``two bites at the apple'' to challenge an
operator's claim of valid existing rights. The reviewer believed that
this would increase the operator's administrative burden to prove valid
existing rights and would also be an inefficient use of Forest Service
resources.
Response: The purpose of this provision is not to give the Forest
Service ``two bites at the apple'' or to increase the time and expense
associated with establishing valid existing rights. Rather, the purpose
of this section is to ensure that the operator still possesses valid
existing rights after the passage of time. As noted earlier in response
to a comment about the continuity requirement in the definition of
``valid existing rights,'' an operator must be able to demonstrate not
only that valid existing rights were established as of the date of the
withdrawal of the federal land on which the claim is located, but he or
she must also be able to prove that the valid existing rights were
maintained continuously thereafter. This means, among other things,
that the marketability of the minerals that are the subject of the
claim must persist.
Several examples of when the Forest Service might conduct another
determination of an operator's claim of valid existing rights may be
illustrative.
When a Forest Service certified mineral examiner concludes that a
claim contains discovery of a valuable mineral deposit, resulting in a
finding that there is sufficient evidence of valid existing rights to
process a plan of operations, and operations are approved, the approved
operations should result in extraction of the valuable mineral deposit
constituting the discovery. Upon the exhaustion of the valuable mineral
deposit, there will no longer be sufficient evidence of valid existing
rights to support a claim, and the claim holder would be expected to
abandon or relinquish the claim. Should the holder not abandon or
relinquish the claim, the Forest Service could challenge it and obtain
a determination that the operator no longer possess valid existing
rights.
Another situation that merits a second valid existing rights
determination might occur when an operator fails to conduct or complete
the mineral operations as described in a previously approved plan of
operations and desires to reinitiate the mining activity. If the
originally approved plan of operations has expired or is obsolete, the
operator must be able to provide sufficient evidence of valid existing
rights from the date of withdrawal and continuously thereafter to the
date of determination related to the new proposal. In this situation,
there would have been sufficient evidence of valid existing rights from
the date of withdrawal to the date of the first valid existing rights
determination, but the operator would need to provide additional
evidence that there was a valuable mineral deposit from the first
determination continuously to the present time. The term
``continuously'' within the context of these regulations means taking
into consideration the relevant historic range of market prices and
costs as well as the likelihood of their continuation or change.
The Forest Service has an obligation under the Act to ensure that
development only occurs on claims with valid existing rights. Since a
claim with valid existing rights at one point in time may not continue
to have valid existing rights, it may be necessary for the claim holder
to prove that valid existing rights have been established on more than
one occasion since the date of withdrawal.
Comment: There is an improper reference to 36 CFR Sec. 228.5(b).
One reviewer noted that the reference to 36 CFR 228.5(b) in
Sec. 292.63(d) of the proposed rule should have been to 36 CFR
228.5(a).
Response: The reviewer is correct, and this citation has been
corrected in the final rule.
Comment: Duration of plans of operations is not appropriate. Two
reviewers noted that five years is too short a duration for a plan of
operations and that the maximum term for such a plan should be 25
years. Their arguments in favor of a longer term are: (1) The high cost
associated with preparing multiple short term plans of operation
compared to preparing one long term plan; (2) the inefficient use of
agency resources that would be required to review new plans of
operation at five year intervals; and (3) the potentially adverse
effects on the operator's financing arrangements.
In contrast to these views, one reviewer interpreted this provision
of the proposed rule as providing for continual cooperative discussions
between the operator and the Forest Service following the development
and approval of plan of operations. This individual suggested the
inclusion of a provision requiring reevaluations every five years for
plans of operation approved for more than five years.
Response: The Forest Service is disinclined to approve plans of
operations in the SRNRA for more than five years. The agency's current
mining regulations require that a plan of operations be prepared for
the entire life of the proposed mining operation, except for aspects of
the operation that are unknown at the time the plan is prepared. Even
in these cases, the mining regulations require the operator to describe
in the plan the operations that are reasonably foreseeable at that time
and to supplement or modify the plan if these operations are changed.
This rule does not change that requirement. Plans of operations for
mineral development activities in the SRNRA should describe all the
proposed operations throughout the
[[Page 14630]]
projected life of the mine. The only difference between this rule and
the agency's current mining regulations concerns the duration for which
the plans of operations may be approved. Under this rule, even though
the plan of operations describes the entire mining operation which in
some cases will exceed five years, the approval will only be valid for
a 5-year period. Under the current mining regulations, the plan of
operations may be approved for the full duration of the proposed
operation.
The Department believes that assessing the effects of proposed
mining operations in the SRNRA and prescribing appropriate mitigation
over the entire projected life of the mine would be difficult in light
of the dynamic environment of the SRNRA and the significant and fragile
resource values for which the area was designated. The agency agrees
that even after a plan of operations is approved, cooperative
discussions between the Forest Service and the operator will be
necessary to monitor ongoing impacts of the mining operation on SRNRA
resource values and whether further adjustments in those operations are
necessary.
The Department believes that it is appropriate and in the public
interest to limit the approval period for plans of operations in the
SRNRA to not more than five years. An operator may choose whether to
submit a new plan of operations for each successive 5 year term or
simply to resubmit the original plan with appropriate modifications.
While the duration of approval of the plan of operations is not changed
from that proposed, the text of Sec. 292.63(e) in the final rule makes
clear that the 5-year approval is different than the length of approval
that may be granted under 36 CFR 228.5. No change was made in the final
rule as a result of this comment.
Section 292.64--Plan of Operations Suspension
This section of the proposed rule would authorize the Forest
Service to direct an operator to suspend mineral development activities
even if a plan of operations has been approved. The proposed rule
authorizes the Forest Service to suspend an operator's mineral
operations if they are being conducted in violation of applicable law,
regulation, or the terms and conditions of the operator's approved plan
of operations. Except in cases in which the violations present an
imminent threat of harm to public health, safety, or the environment,
the Forest Service must notify the operator not less than thirty days
in advance of the suspension. The thirty day notice should, in most
instances, give the operator sufficient time to cure the violations
prior to the suspension taking effect. In cases where mineral
operations present an imminent threat of harm to public health, safety,
or the environment (or where such harm is already occurring) regardless
of whether the operator is in violation of applicable laws,
regulations, or the terms and conditions of the plan of operations, the
Forest Service is authorized to take immediate action to suspend the
mineral development activity. In these cases, the rule directs the
Forest Service to notify the operator of the suspension as soon as is
reasonably practicable thereafter.
Comment: Suspension of a plan of operations without prior notice to
the operator is a denial of due process. One reviewer felt that the
suspension of a plan of operations without notice to the operator is a
violation of constitutional requirements of due process.
Response: The proposed rule describes two scenarios under which the
suspension of mineral operations may occur. The first scenario deals
with mineral operations that are not being conducted in accordance with
the applicable laws, regulations, or the approved plan of operations
but do not present an immediate threat to public health, safety, or the
environment. In these cases, the proposed rule specifically provides
that the authorized officer will notify the operator not less than 30
days prior to the suspension during which time the operator may modify
the operations and thus avoid the suspension. The second scenario deals
with mineral operations that pose a ``threat of imminent harm to public
health, safety, or the environment.'' In these cases, the proposed rule
authorizes immediate suspension of operations but requires that the
operator be notified of the basis for the suspension ``as soon as
reasonably practicable following the suspension.''
The Supreme Court has held that the type of due process required
under the Constitution varies depending upon the private interest
affected by the government action, the risk of an erroneous deprivation
of the private interest by the government action, and the Government's
interest (including the functions involved and the fiscal and
administrative burdens) that additional or substitute procedural
requirements would entail. While the Supreme Court has maintained that
due process must afford individuals an opportunity to be heard ``at a
meaningful time and in a meaningful manner,'' it has not required that
such opportunities must necessarily occur prior to the challenged
government action in order to be constitutional. Indeed, there have
been numerous cases in which the court has upheld procedures that offer
an individual after-the-fact opportunities to challenge government
actions against due process challenges. These procedures have been
routinely upheld in contexts where government actions have been taken
to abate an immediate threat to public health, safety, and welfare.
The only situation described in the proposed rule when ex post
notice of a suspension would be provided is when a clear and present
threat to public health, safety and welfare is presented. This is not a
violation of constitutional standards of due process. Therefore, no
changes have been made to the text of the final rule based on this
comment.
Section 292.68, Indemnification
The proposed rule specified that the owners and/or operators of
mining claims and the owners and/or lessees of outstanding mineral
rights would be liable for the following: (1) indemnifying the United
States for injury, loss, or damage which the United States incurs as a
result of any mining operation in the SRNRA; (2) payments made by the
United States in satisfaction of claims, demands or judgments for such
injury, loss, or damage; and (3) costs incurred by the United States
for any action resulting from noncompliance with an approved plan of
operations or activities outside a mutually agreed to operating plan.
Comments: The indemnification provision is vague and of
questionable legal authority. In addition to suggesting that this
section was vague and potentially over inclusive, one reviewer
requested the agency to specify the authority under which it may seek
indemnification from operators to recover costs associated with, among
other things, injury, loss, or damage to National Forest System lands
and resources resulting from mineral operations in the SRNRA. This
reviewer concluded that since this is a new provision for the SRNRA,
there must be new statutory authority or a recent change in the law
from which it is derived. If no such new authority exists, the reviewer
argued that this provision must be deleted.
Response: The authority for the indemnification provision in the
supplementary regulations for mining in the SRNRA is derived from the
Organic Administration Act of 1897, 16 U.S.C. 551, which states in
relevant part that,
The Secretary of Agriculture shall make provisions for the
protection against destruction by fire and depredations upon
[[Page 14631]]
the public forests and national forests which may have been set
aside or which may hereafter be set aside * * * and he may make such
rules and regulations and establish such service as will insure the
objects of such reservations, namely, to regulate their occupancy
and use and to preserve the forests thereon from destruction * * *
The reviewer's presumption that the Forest Service must be able to
point to a recent change in the law to support the inclusion of an
indemnification provision in this rule because it is ``new and unique''
in the SRNRA is unfounded. The authority has always existed, at least
since the enactment of the Organic Administration Act in 1897. Similar
indemnification provisions are incorporated into several other written
instruments which authorize the use of National Forest System lands.
For example, special use authorizations for outfitters and guides and
ski area operators and the consent authorization for oil and gas lease
operators and lessees contain indemnification provisions.
The Department does not find the indemnification provision
unconstitutionally vague or overly inclusive. In Village of Hoffman
Estates v. The Flipside, Hoffman Estates, Inc., 455 U.S. 489 (1982),
the Supreme Court enumerated a number of factors which affect the
degree of vagueness which the Constitution tolerates. For example, a
less strict vagueness test will apply if a regulation is economic in
nature, does not contain criminal sanctions, and does not implicate
constitutionally protected rights. In United States v. Doremus, 888
F.2d 630 (9th Cir. 1989), the United States Ninth Circuit Court of
Appeals rejected a vagueness challenge to a Forest Service regulation
prohibiting certain types of conduct related to mining activities on
National Forest System lands.
This rule meets all the factors required by the Supreme Court
ruling. However, it does not invoke criminal sanctions and does not
affect constitutionally protected r
FR Doc. 96-8097 Smith River National Recreation Area
ights. The Department believes that
the 9th Circuit's reasoning in Doremus is also instructive and relevant
and that this rule would withstand a vagueness challenge under that
ruling as well. Consequently, there have been no changes made to the
text of the final rule based on this comment.
Regulatory Impact
This final rule has been reviewed under USDA procedures and
Executive Order 12866 on Regulatory Planning and Review. It has been
determined that this regulation is not a significant rule. This rule
will not have an annual effect of $100 million or more on the economy
and will not adversely affect productivity, competition, jobs, the
environment, public health and safety, or State and local governments.
This rule will not interfere with an action taken or planned by another
agency nor raise new legal or policy issues. Finally, this action will
not alter the budgetary impact of entitlements, grants, user fees, or
loan programs or the rights and obligations of recipients of such
programs. In short, little or no effect on the National economy will
result from this rule, since it affects only mining activities on
National Forest System lands in the SRNRA. Accordingly, this final rule
is not subject to OMB review under Executive Order 12866.
Moreover, this final rule has been considered in light of the
Regulatory Flexibility Act (RFA) (5 U.S.C. 601 et. seq.), and it has
been determined that this action will not have a significant economic
impact on a substantial number of small entities as defined by the RFA
because of its limited scope and application. Also, this proposed rule
does not adversely affect competition, employment, investment,
productivity, innovation, or the ability of United States based
enterprises to compete in local or foreign markets.
Environmental Impact
After an initial conclusion that the proposed rule was
categorically excluded from documentation in an environmental
assessment (EA) or impact statement, it was determined that the Forest
Service should prepare an EA. A copy of the EA and the Finding of No
Significant Impact are available upon request by calling the contact
listed earlier in this rulemaking under FOR FURTHER INFORMATION
CONTACT.
Controlling Paperwork Burdens on the Public
In the proposed rule, the agency requested comment on two new
information requirements. Proposed Sec. 292.62(b) specified that in
addition to the requirements of Sec. 228.4, an operator must provide
information to substantiate valid existing rights as part of a plan of
operations. Proposed Sec. 292.65(b) required those who wish to exercise
outstanding mineral rights to submit an operating plan. Only one person
commented on the first collection; no comments were received on the
second collection. The one respondent said that the requirement for
information supporting valid existing rights would be burdensome to the
claim holder or operator. As stated in the preceding indepth response
to this comment, the agency does not consider this information
collection burdensome since most of the required information has been
generated already by the claim holder or operator. The agency needs
this information for verification of valid existing rights in order to
authorize use, as required under the Smith River National Recreation
Area Act of 1990 (16 U.S.C. 460bbb et seq.). Therefore, no changes were
made in the final rule based on the comment regarding information
requirements.
This information collection has been reviewed by the Office of
Management and Budget according to the provisions of the Paperwork
Reduction Act of 1995 (44 U.S.C. 3501 et seq.) and implementing
regulations at 5 CFR part 1320. The information requirements in this
rule have been assigned control number 0596-0138 for use through
September 30, 1998.
No Takings Implications
In compliance with Executive Order 12630 and the Attorney General's
Guidelines for the Evaluation of Risk and Avoidance of Unanticipated
Takings, the takings implication of this proposed rule have been
reviewed and considered. It has been determined that there is no risk
of a taking.
Civil Justice Reform Act
This rule has been reviewed under Executive Order 12778, Civil
Justice Reform. Upon adoption of this rule, (1) all State and local
laws and regulations that are in conflict with this proposed rule or
which would impede its full implementation would be preempted; (2) no
retroactive effect would be given to this proposed rule and; (3) it
would not require administrative proceedings before parties would file
suit in court challenging its provisions.
List of Subjects in 36 CFR Part 292
Administrative practice and procedure, Environmental protection,
Mineral resources, National forests, and National recreation areas.
Therefore, for the reasons set forth in the preamble, Part 292 of
Chapter II of title 36 of the Code of Federal Regulations is amended by
adding a new Subpart G to read as follows:
PART 292--NATIONAL RECREATION AREAS
Subpart G--Smith River National Recreation Area
Sec.
292.60 Purpose and scope.
292.61 Definitions.
[[Page 14632]]
Valid Existing Rights
292.62 Plan of operations--supplementary requirements.
292.63 Plan of operations--approval.
292.64 Plan of operations--suspension.
Outstanding Mineral Rights
292.65 Operating plan requirements.
292.66 Operating plan acceptance.
Mineral Materials
292.67 Mineral material operations.
Indemnification
292.68 Indemnification.
Subpart G--Smith River National Recreation Area
Authority: 16 U.S.C. 460bbb et seq.
Sec. 292.60 Purpose and scope.
(a) Purpose. The regulations of this subpart set forth the rules
and procedures by which the Forest Service regulates mineral operations
on National Forest System lands within the Smith River National
Recreation Area as established by Congress in the Smith River National
Recreation Area Act of 1990 (16 U.S.C. 460bbb et seq.).
(b) Scope. The rules of this subpart apply only to mineral
operations on National Forest System lands within the Smith River
National Recreation Area.
(c) Applicability of other rules. The rules of this subpart
supplement existing Forest Service regulations concerning the review,
approval, and administration of mineral operations on National Forest
System lands including, but not limited to, those set forth at parts
228, 251, and 261 of this chapter.
(d) Conflicts. In the event of conflict or inconsistency between
the rules of this subpart and other parts of this chapter, the rules of
this subpart take precedence, to the extent allowable by law.
(e) Applicability to ongoing operations. Operations under an
acceptable operating plan or an approved plan of operations in effect
prior to the effective date of these regulations shall be for a limited
time not to exceed 5 years. If ongoing operations have a shorter
specified operating time, the shorter operating time shall remain in
effect.
Sec. 292.61 Definitions.
The special terms used in this subpart have the following meaning:
Act means the Smith River National Recreation Area Act of 1990 (16
U.S.C. 460bbb et seq.)
Authorized officer means the Forest Service officer to whom
authority has been delegated to take actions pursuant to the provisions
of this subpart.
Hazardous substance means any substance so classified under the
Comprehensive Environmental Response, Compensation, and Liability Act
of 1980, as amended (42 U.S.C. 9601).
Operating plan means the document submitted in writing by the owner
or lessee, or a representative acting on behalf of an owner or lessee,
to exercise outstanding mineral rights for minerals underlying National
Forest System lands.
Outstanding mineral rights means the rights owned by a party other
than the surface owner at the time the surface was conveyed to the
United States.
SRNRA is the abbreviation for the Smith River National Recreation
Area, located within the Six Rivers National Forest, California.
Valid existing rights means mining claims on National Forest System
lands in the SRNRA excluding the Siskiyou Wilderness (except for the
Gasquet-Orleans Corridor addition) and wild segments of the Smith Wild
and Scenic River (including the Middle Fork, North Fork, and South Fork
and tributaries thereto) which: (1) were properly located prior to
November 16, 1990, for a mineral that was locatable at that time; (2)
were properly maintained thereafter under the applicable law; (3) were
supported by a discovery of a valuable mineral deposit within the
meaning of the general mining law prior to November 16, 1990, which
discovery has been continuously maintained since that date; and (4)
continue to be valid. For mining claims in the Siskiyou Wilderness
(except for the Gasquet-Orleans Corridor addition), the location and
discovery must have occurred prior to September 26, 1984. For mining
claims in wild segments of the Smith Wild and Scenic River, the
location and discovery must have occurred prior to January 19, 1981.
Valid Existing Rights
Sec. 292.62 Plan of operations--supplementary requirements.
(a) Applicability. In addition to the activities for which a plan
of operations is required under Sec. 228.4 of this part, a plan of
operations is required when a proposed operation within the SRNRA
involves mechanical or mechanized equipment, including a suction dredge
and sluice.
(b) Information to support valid existing rights. A plan of
operations within the SRNRA must include at least the following
information relevant to the existence of valid existing rights from the
date the affected area of land was withdrawn from mineral entry to the
present:
(1) The mining claim recordation serial number assigned by the
Bureau of Land Management;
(2) A copy of the original location notice and conveyance deeds, if
ownership has changed since the date of location;
(3) A copy of the affidavit of assessment work or notice of
intention to hold the mining claim since the date of recordation with
the Bureau of Land Management;
(4) Verification by the Bureau of Land Management that the holding
fees have been paid or have been exempted;
(5) Sketches or maps showing the location of past and present
mineral workings on the claims and information sufficient to locate and
define the mining claim corners and boundaries on the ground;
(6) For lode and placer mining claims--
(i) An identification of the valuable mineral that has been
discovered;
(ii) An identification of the site within the claims where the
deposit has been discovered and exposed;
(iii) Information on the quantity and quality of the deposit
including copies of assays or test reports, the width, locations of
veins, the size and extent of any deposit; and
(iv) Evidence of past and present sales of the valuable mineral;
and
(7) For millsite claims, information proving that the millsite is
associated with a valid mining claim and that the millsite is used or
occupied for mining or milling purposes.
(c) Minimum information on proposed operations. A plan of
operations must include the information required at 36 CFR 228.4 (c)(1)
through (c)(3) which includes information about the proponent and a
detailed description of the proposed operation. In addition, if the
operator and claim owner are different, the operator must submit a copy
of the authorization or agreement under which the proposed operations
are to be conducted. A plan of operations must also address the
environmental protection requirements of 36 CFR 228.8 which includes
reclamation. In addition, when practicable, reclamation will proceed
concurrently with the mineral operation.
Sec. 292.63 Plan of operations approval.
(a) Upon receipt of a plan of operations, the authorized officer
shall review the information related to valid existing rights and
notify the operator in writing that one of the following circumstances
apply:
(1) That sufficient information on valid existing rights has been
provided
[[Page 14633]]
and the date by which the Forest Service expects to complete the valid
existing rights determination; or
(2) That sufficient information on valid existing rights has not
been provided and the specific information that still needs to be
provided.
(b) If upon receipt, review, and verification of all requested
information, the authorized officer finds that there is not sufficient
evidence of valid existing rights, the authorized officer shall so
notify the operator in writing, provide the reasons for the
determination, and advise that the proposed mineral operation cannot be
conducted.
(c) If upon receipt, review, and verification of all requested
information, the authorized officer finds that there is sufficient
evidence of valid existing rights, the authorized officer shall so
notify the operator, in writing, that a review of the proposed plan of
operations is underway and the date by which the review is expected to
be completed. A prior determination that there is sufficient evidence
of valid existing rights shall not bar the authorized officer from
requesting the Department of the Interior to file a mineral contest
against a mining claim if the authorized officer has a reasonable basis
to question that determination.
(d) Upon completion of the review of the plan of operations, the
authorized officer shall ensure that the minimum information required
by Sec. 292.62(c) has been addressed and, pursuant to Sec. 228.5(a) of
this chapter, notify the operator in writing whether or not the plan of
operations is approved.
(e) Notwithstanding the provisions of 36 CFR Sec. 228.5, the period
for which a plan of operations is approved within the SRNRA may not
exceed five years and must be explicitly identified by the authorized
officer in giving notice of approval of a plan of operations.
(f) If an operator desires to make substantive changes in the type,
scope, or duration of mineral operations from those described in an
approved plan of operations and those changes may result in resource
impacts not anticipated when the original plan was approved, the
operator must submit a supplemental plan or a modification for review
and approval of the authorized officer pursuant to Sec. 292.62 of this
proposed rule.
Sec. 292.64 Plan of operations suspension.
The authorized officer may suspend mineral operations, in whole or
in part, due to an operator's noncompliance with applicable statutes,
regulations, or terms and conditions of the approved plan of
operations. Except as otherwise provided in this section, prior to
suspending operations, the authorized officer must first notify the
operator in writing of the basis for the suspension and provide the
operator with a reasonably sufficient time to respond to the notice of
the authorized officer or to bring the mineral operations into
conformance with applicable laws, regulations, or the terms and
conditions of the approved plan of operations. Generally, the
authorized officer shall notify the operator not less than thirty days
prior to the date of the proposed suspension; however, in those cases
that present a threat of imminent harm to public health, safety, or the
environment, or where such harm is already occurring, the authorized
officer may take immediate action to stop the threat or damage without
prior notice. In such case, written notice and explanation of the
action taken, shall be given the operator as soon as reasonably
practicable following the suspension.
Outstanding Mineral Rights
Sec. 292.65 Operating plan requirements.
(a) Proposals for mineral operations involving outstanding mineral
rights within the SRNRA must be documented in an operating plan and
submitted in writing to the authorized officer for review at least 60
days in advance of surface occupancy.
(b) An operating plan for operations involving outstanding mineral
rights within the SRNRA must include the following:
(1) The name and legal mailing address of the operator, owner, and
any lessees, assigns, and designees;
(2) A copy of the deed or other legal instrument that conveyed the
outstanding mineral rights;
(3) Sketches or maps showing the location of the outstanding
mineral rights, the proposed area of operations, including but not
limited to, existing and/or proposed roads or access routes identified
for use, any new proposed road construction, and the approximate
location and size of the areas to be disturbed, including existing or
proposed structures, facilities, and other improvements to be used;
(4) A description of the type of operations which includes, at a
minimum, a list of the type, size, location, and number of structures,
facilities, and other improvements to be used;
(5) An identification of the hazardous substances and any other
toxic materials, petroleum products, insecticides, pesticides, and
herbicides that will be used during the mineral operation, and the
means for disposing of such substances;
(6) An identification of the character and composition of the
mineral wastes that will be used or generated and a method or strategy
for their placement, control, isolation, or removal; and
(7) A reclamation plan to reduce or control on-site and off-site
damage to natural resources resulting from mineral operations.
(i) The plan should provide, to the extent practicable, that
reclamation proceed concurrently with the mineral operations and must
show how public health and safety are maintained.
(ii) Reclamation measures to be identified and described in the
plan include, but are not limited to, the following:
(A) Reduction and/or control of erosion, landslides, and water
runoff;
(B) Rehabilitation of wildlife and fisheries habitat to be
disturbed by the proposed mineral operation; and
(C) Protection of water quality.
(iii) The area of surface disturbance must be reclaimed to a
condition or use that is consistent with the SRNRA Management Plan.
Sec. 292.66 Operating plan acceptance.
(a) Upon receipt of an operating plan, the authorized officer must
review the information related to the ownership of the outstanding
mineral rights and notify the operator in writing that one of the
following circumstances apply:
(1) That sufficient information on ownership of the outstanding
mineral rights has been provided and the date by which the review is
expected to be completed; or
(2) That sufficient information on ownership of outstanding mineral
rights has not been provided and the specific information that still
needs to be provided.
(b) If the review shows that outstanding mineral rights have not
been established, the authorized officer must notify the operator in
writing of this finding, the reasons for such a finding, and that the
proposed mineral operation cannot be conducted.
(c) If the review shows that outstanding mineral rights have been
established, the authorized officer must notify the operator in writing
of this finding, that review of the proposed operating plan is
underway, and the date by which the review is expected to be completed.
(d) The authorized officer shall focus review of the operating plan
to determine if all of the following criteria are met:
(1) The operating plan is consistent with the rights granted by the
deed;
(2) The operating plan is consistent with the SRNRA Management
Plan; and
[[Page 14634]]
(3) The operating plan uses only so much of the surface as is
necessary for the proposed mineral operations.
(e) Upon completion of the review of the operating plan, the
authorized officer shall notify the operator in writing that one of the
following two circumstances apply:
(1) The operating plan meets the criteria of paragraphs (d)(1)
through (d)(3) of this section, and, therefore, the Forest Service has
no objections to commencement of operations and that the Forest Service
intends to monitor operations to ensure that operations conform to the
operating plan; or
(2) The operating plan does not meet all of the criteria in
paragraphs (d)(1) through (d)(3) of this section and the reasons why
the operating plan does not meet the criteria. In this event, the
authorized officer shall propose changes to the operating plan and
attempt to negotiate modifications that will enable the operating plan
to meet the criteria in paragraphs (d)(1) through (d)(3) of this
section.
(f) To conduct mineral operations beyond those described in an
acceptable operating plan, the owner or lessee must submit in writing
an amended operating plan to the authorized officer at the earliest
practicable date. The authorized officer shall have not less than 60
days in which to review and respond to a proposed amendment before the
new operations begin. The review will be conducted in accordance with
paragraphs (d)(1) through (d)(3) of this section.
Mineral Materials
Sec. 292.67 Mineral material operations.
Subject to the provisions of part 228, subpart C and part 293 of
this chapter, the authorized officer may approve contracts and permits
for the sale or other disposal of mineral materials, including but not
limited to, common varieties of gravel, sand, or stone. However, such
contracts and permits may be approved only if the material is not
within a designated wilderness area and is to be used for the
construction and maintenance of roads and other facilities within the
SRNRA and the four areas identified by the Act that are within the
exterior boundaries of the SRNRA but are not classified as part of the
SRNRA.
Indemnification
Sec. 292.68 Indemnification.
The owner and/or operator of mining claims and the owner and/or
lessee of outstanding mineral rights are jointly and severally liable
in accordance with Federal and State laws for indemnifying the United
States for:
(a) Injury, loss, or damage, including fire suppression costs,
which the United States incurs as a result of the mineral operations;
(b) Payments made by the United States in satisfaction of claims,
demands or judgments for an injury, loss, or damage, including fire
suppression costs, which result from the mineral operations; and
(c) Costs incurred by the United States for any action resulting
from noncompliance with an approved plan of operations or activities
outside a mutually agreed to operating plan.
Dated: March 28, 1996.
Mark Gaede,
Acting Deputy Under Secretary, Agriculture.
[FR Doc. 96-8097 Filed 4-2-96; 8:45 am]
BILLING CODE 3410-11-M
Complete official Federal Register PDF
FR Doc. 96-8095 Disposal of National Forest System Timber; Modification of Timber Sale Contracts in Extraordinary Conditions
[Federal Register Volume 61, Number 65 (Wednesday, April 3, 1996)]
[Rules and Regulations]
[Pages 14618-14621]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-8095]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF AGRICULTURE
Forest Service
36 CFR Part 223
RIN 0596-AB58
Disposal of National Forest System Timber; Modification of Timber
Sale Contracts in Extraordinary Conditions
AGENCY: Forest Service, USDA.
ACTION: Interim final rule; request for public comment.
-----------------------------------------------------------------------
SUMMARY: This interim rule revises the existing regulations regarding
noncompetitive sale of timber based on the Secretary of Agriculture's
determination that extraordinary conditions exist. The intended effect
is to allow forest officers, without advertisement, to make
modifications to timber sales awarded or released pursuant to section
2001(k) of the 1995 Rescissions Act, which result in the substitution
of timber from outside the sale area specified in the contract for
timber within the timber sale contract area. Good cause exists to adopt
this interim final rule without prior notice and comment; however,
public comment is invited and will be considered before adoption of a
final rule.
DATES: This rule is effective April 3, 1996. Comments must be received
by May 20, 1996.
ADDRESSES: Send written comments to: Chief (2400), Forest Service,
USDA, P.O. Box 96090, Washington, DC 20090-6090.
The public may inspect comments received on this rule in the Office
of the Director, Timber Management Staff, Forest Service, USDA, 201
14th Street, SW., Washington, DC 20250. Parties wishing to view
comments are requested to call ahead ((202) 205-0893) to facilitate
entry into the building.
FOR FURTHER INFORMATION CONTACT:
Bob Lynn, Timber Management Staff (202) 205-1787; Jay McWhirter,
Natural Resources Division, Office of the General Counsel (202) 690-
0329.
SUPPLEMENTARY INFORMATION:
Applicable Contract Law
The rules at 36 CFR Part 223 govern the sale of National Forest
System timber. Sections 223.80 and 223.100 address the requirements for
advertisement and for award of timber sale contracts respectively.
Title 16 U.S.C. 472a(d) requires the Secretary of Agriculture to
advertise all sales of forest products unless the value of the sale is
less than $10,000, or the Secretary determines that extraordinary
conditions exist, as defined by regulation. Current regulations at 36
CFR 223.80 require advertisement of a sale for 30 days when its value
is greater than $10,000. The Secretary has not previously promulgated
rules to implement section 472a(d)'s authority to dispose of timber
without advertisement when extraordinary conditions exist.
The advertising requirement of 16 U.S.C. 472a(d) also limits
modifications to contracts involving the addition or substitution of
timber outside a contract's sale area. Since only the timber within the
contract's sale area was subject to competitive bidding, any timber
located outside the contract's sale area would theoretically be
available for sale to other interested purchasers; thus the current
rules do not permit contract modifications that add or substitute
timber outside a contract's sale area for timber under contract within
the sale area. Moreover, the General Accounting Office has held that
substitution of timber outside a contract's sale area for timber within
the contract area violated the agency's authority to sell timber. B-
177602 (1973). The Agriculture Board of Contract Appeals has decided
similarly in several cases. See Appeal of Summit Contractors, AGBCA No.
81-252-1, AGBCA No. 83-312-1 (Jan. 8, 1986), and Appeal of Jay Rucker,
AGBCA No. 79-211A CDA (June 11, 1980). In addition, in a recent case
involving the Bureau of Land Management, the Court of Federal Claims
stated that modifications to existing timber sales must conform with
agency status and regulations regarding disposal of timber. Croman
Corporation v. United States, 31 Fed. Cl. 741, 746-47 (August 16,
1994).
[[Page 14619]]
The 1995 Rescissions Act
On July 27, 1995, President Clinton signed into law the 1995
Rescissions Act (Pub. L. 104-19, 109 Stat. 246). Section 2001(k) of the
1995 Rescissions Act directed the release of timber sales subject to
section 318 of the Fiscal Year 1990 Interior and Related Agencies
Appropriations Act (Pub. L. 101-121, 103 Stat. 745). Section 318 has
been the subject of extensive litigation, including a Supreme Court
decision ultimately affirming the constitutionality of the law in
Robertson v. Seattle Audubon Society, 503 U.S.C. 429 (1992). Some
section 318 timber sales were affected by litigation over compliance
with various terms of section 318, such as the requirement to minimize
fragmentation of ecologically-significant old growth. See Seattle
Audubon Society v. Robertson, Civ. No. 89-160 (W.D. Wash.).
Many section 318 sales did not go forward as a result of concerns
about significant impacts to species listed under the Endangered
Species Act (ESA). In June 1990, after enactment of section 318, the
United States Fish and Wildlife Service (FWS) listed the northern
spotted owl as a threatened species under the ESA (55 FR 26189; June
26, 1990). Because of the listing of the northern spotted owl as a
threatened species, a number of Forest Service section 318 sales were
``modified, eliminated or held in abeyance.'' See Gifford Pinchot
Alliance v. Butruille, 742 F. Supp. 1077, 1080.
On September 28, 1992, the FWS listed the marbled murrelet as a
threatened species (57 FR 45328; Oct. 1, 1992). As a result of the
listing, the Forest Service reinitiated consultation with the FWS under
section 7(a)(2) of the Endangered Species Act, 16 U.S.C. 1536(a)(2),
regarding the effects of murrelets of continuing to harvest section 318
sales that had already been awarded. In June 1995, the FWS concluded
that further logging of a number of the Forest Service section 318
sales would likely jeopardize the continued existence of the marbled
murrelet. As a result, these section 318 sales were suspended pending
further field survey work.
Some section 318 sales were also affected when the National Marine
Fisheries Service proposed listing several anadromous fish species in
the region as threatened or endangered. These species include the
Umpqua River cutthroat trout (59 FR 35089; July 8, 1994), and the coho
salmon (60 FR 38011; July 25, 1995). As stated in these listings, the
decline of these species is due in part to past timber harvest
practices.
The 1995 Rescissions Act contained a provision directed at these
section 318 sales that were still suspended. Section 2001(k) of the Act
states:
Notwithstanding any other provision of law, within 45 days after
the date of the enactment of this Act, the Secretary concerned shall
act to award, release, and permit to be completed in fiscal years
1995 and 1996, with no change in originally advertised terms,
volumes, and bid prices, all timber sale contracts offered or
awarded before that date in any unit of the National Forest System
or district of the Bureau of Land Management subject to section 318
of Public Law 101-121 (103 Stat. 745). The return of the bid bond of
the higher bidder shall not alter the responsibility of the
Secretary concerned to comply with this paragraph.
Currently the Department is in litigation involving the
implementation of section 2001 of the 1995 Rescissions Act. On
September 13, 1995, the district court in NFRC v. Glickman No. 95-6244-
HO (D. Or.), held that section 2001(k) applies to timber sales
previously offered or awarded in all national forests in Washington and
Oregon and BLM districts in western Oregon up to July 27, 1995. On
October 17, 1995, the district court entered an order which ``compelled
and directed'' the Secretary of Agriculture and the Secretary of the
Interior, ``to award, release and permit to be completed in fiscal
years 1995 and 1996, with no change in originally advertised terms,
volumes, and bid prices, all timber sale contracts offered or awarded
between October 1, 1990 and July 27, 1995, in any national forest in
Oregon and Washington or BLM district in western Oregon, except for
sale units in which a threatened or endangered bird species is known to
be nesting.'' The government has appealed the district court's ruling
(NFRC v. Glickman, 9th Cir. No. 95-36042), and is awaiting a decision.
After the district court's September 13, 1995, ruling, and its
October 17, 1995, injunction, the Forest Service proceeded to release
timber sales to previously identified high bidders. In one category of
sales, however, the high bidders were either unwilling, unable, or
unqualified to take advantage of the renewed offer of the timber sale.
In another category of sales, courts had previously issued injunctions
preventing the award of the sales, or the Forest Service had rejected
bids, suspended, or terminated sales as a result of earlier litigation.
For both categories, the Forest Service decided not to pursue the award
or release of timber sales, and was challenged in district court in the
NFRC v. Glickman case. In a decision dated January 10, 1996 (amended to
address typographical errors on January 17, 1996), the district court
enjoined the Secretary of Agriculture to award, release and permit to
be completed immediately, all timber sales that were subject to section
2001(k). The January 10, 1996, injunction included sales where the
Forest Service had rejected bids, suspended, or terminated sales as a
result of earlier litigation, and those sales where the high bidders
were unwilling, unable, or unqualified to be awarded sales.
In section 2001(k)(2) of the 1995 Rescissions Act, Congress created
a limited exception from the general release requirements imposed by
section 2001(k)(1). Under section 2001(k)(2), ``No sale unit shall be
released or completed under this subsection if any threatened or
endangered bird species is known to be nesting within the acreage that
is the subject of the sale unit.'' Section 2001(k)(3) requires the
Secretary of Agriculture and the Secretary of the Interior to provide
an equal volume of alternative timber ``of like kind and value'' for
timber sales withheld under 2001(k)(2)'s ``known to be nesting''
provision. On August 23, 1995, the Department of Agriculture and the
Department of the Interior issued a joint letter of direction
implementing section 2001(k)(2). The agencies concluded that, based on
the scientific analysis used in a protocol developed by the Pacific
Seabird Group, the protocol's criteria should be utilized in evaluating
whether marbled murrelets are ``known to be nesting'' in timber sales
that are subject to section 2001(k).
On September 1, 1995, a lawsuit was filed challenging the
government's implementation of section 2001(k)(2). Scott Timber Co. v.
Glickman, Civ. No. 95-6267-HO (D. Or.). The district court consolidated
the Scott Timber case with NFRC v. Glickman, Civ. No. 95-6244-HO. On
January 19, 1996, the district court issued a decision rejecting the
government's interpretation of section 2001(k)(2) and use of the
Pacific Seabird Group Protocol criteria to determine whether marbled
murrelets are ``known to be nesting.'' The court stated:
The language and legislative history of section 2001(k)(2)
suggest that Congress intended to allow the agencies some leeway to
determine what types of physical evidence observed within sale unit
boundaries are sufficient to establish a ``known'' nesting site
within the sale unit. Thus an agency may rely on the visual or
auditory observation of a murrelet located sub-canopy within sale
unit boundaries engaging in behavior that the
[[Page 14620]]
agency determines is sufficiently indicative of nesting to establish
a ``known'' nesting site within that sale unit.
The District court then enjoined the Secretary of Agriculture to
release sales that had previously been suspended if the sales did not
satisfy the criteria set forth in the court's January 19, 1996, order.
At a hearing held on January 25, 1996, the district court granted a 60-
day stay of the injunction. The stay expires on March 25, 1996, and
timber purchasers have opposed continuation of the stay order on the
bases that they should be entitled to begin harvesting and any
continuation may preclude them from completing timber sales due to the
expiration of section 2001(k)(1) on September 30, 1996. The government
has appealed both the January 10 and January 19, 1996, rulings of the
district court; oral argument on the appeal is scheduled for the week
of May 6, 1996.
Extraordinary Conditions
The Secretary of Agriculture is under October 17, 1995, January 10,
1996, and January 19, 1996, injunctions by the district court in NFRC
v. Glickman to release sales that the Forest Service had previously
suspended, withdrawn, or canceled. While the United States has taken
appeals from the district court rulings underlying these injunctions,
some sales have already been released, and others may be released in
the future to comply with the district court injunctions.
Timber sales that have been released, or that may be released were
planned and prepared under standards that pre-dated the Record of
Decision for amendments to Forest Service and Bureau of Land Management
planning documents within the range of the northern spotted owl, dated
April 13, 1994 (hereinafter referred to as Northwest Forest Plan). The
release and harvest of some of these sales may cause real harm to
natural resources, including fish and wildlife resources. However, the
opportunity exists to negotiate mutual modifications to these sales
that will minimize environmental harm and bring them more in compliance
with the Northwest Forest Plan's standards and guidelines. However, the
mutual modifications likely to be needed for these sales would require
the Forest Service to substitute timber from outside of the existing
sale areas. Faced with these extraordinary conditions, unless the
agency can immediately implement the authority provided in 16 U.S.C.
472a(d) to dispose of timber without advertisement, the opportunity to
carry out section 2001(k) with a minimum of environmental harm through
modifications to timber sale contracts will be lost.
Good Cause Exemption
Based on the foregoing extraordinary conditions, the Department
finds that there exists good cause to promulgate this rule on an
expedited basis. Because of district court injunctions in NFRC v.
Glickman which require the Forest Service to take immediate action to
award and release these timber sales, the Forest Service has a
compelling need to make modifications to contracts which have been or
will be awarded or released pursuant to section 2001(k) of the 1995
Rescissions Act. Without modification, sales will be awarded or
released which contain provisions that pre-date the implementation of
the timber sale standards and guidelines of the Northwest Forest Plan.
Given the duty to comply with the district court's injunction, and the
urgent need to modify timber sales to avoid environmental harm that
would occur if these timber sales are completed without modification,
the Department finds that notice and comment are impracticable prior to
the issuance of this rule, and thus, that good cause exists to adopt
this interim final rule.
Moreover, the Department finds that it would be contrary to the
public interest, under these circumstances, to fail to act immediately
to address the need for modification of these timber contracts. First,
this rule will have a limited application. It will apply only to those
sales that have been or will be released pursuant to section 2001(k) of
the 1995 Rescissions Act. To date, the Forest Service has identified
approximately 100 timber sales subject to section 2001(k). Second,
without authority to make contract modifications that include timber
outside the sale area, the Forest Service cannot provide a reasonable
alternative to imminent harvest of environmentally harmful timber
sales. It is the opinion of the Department, based on communications
with timber contract holders, that failure to expeditiously provide
alternatives to the timber sales released by section 2001(k) will lead
to the immediate harvest of released sales. Such environmental harm,
which may restrict options for future timber harvests, may occur within
the time otherwise required for notice and public participation by E.O.
12866. Finally, section 2001(h) of the 1995 Rescissions Act does not
require the Secretary of Agriculture to adhere to the requirements of 5
U.S.C. 553 in implementing the 1995 Rescissions Act. To the extent that
this rule is in furtherance of the duties imposed by the Rescissions
Act, normal rulemaking procedures would not apply.
Intended Effects
This interim final rule redesignates the existing text in 36 CFR
223.85 as paragraph (a) and adds a new paragraph (b) to define
``extraordinary conditions'' to allow forest officers, without
advertisement, to make modifications to timber sales awarded or
released pursuant to section 2001(k) of Public Law 104-19 (109 Stat.
246), which result in the substitution of timber from outside the sale
area specified in the contract for timber within the sale area. It
should be noted, however, that this rule change does not compel a
timber purchaser to accept a timber sale modification offered under the
interim final rule. The rule authorizes the Forest Service to propose
modifications and to enter into discussions with purchasers on such
modifications, but, as with all mutual transactions, purchasers are not
obligated to accept any proposed modifications.
Regulatory Impact
This rule has been reviewed under USDA procedures and Executive
Order 12866 on Regulatory Planning and Review. While it has been
determined that this is not an economically significant rule, this rule
has been determined to be significant because this rule implements a
statutory authority for noncompetitive modification of timber sale
contracts. Heretofore, there have been no rules on this subject. Given
the wide interest in the timber sales and the statutory direction that
gives rise to the extraordinary conditions which are the subject of
this rulemaking, this rule has been reviewed by the Office of
Management and Budget prior to publication.
Moreover, this rule has been considered in light of the Regulatory
Flexibility Act (5 U.S.C. 601, et seq.) and it has been determined that
this action will not have a significant economic impact on a
substantial number of small entities as defined by that act.
Environmental Impact
This rulemaking action falls within a category of actions excluded
from documentation in an Environmental Impact Statement or an
Environmental Assessment. Section 31.1b of Forest Service Handbook
1909.15 (57 FR 43180, September 18, 1992) excludes from documentation
in an environmental assessment or impact statement ``rules,
regulations, or policies to establish Service-wide administrative
[[Page 14621]]
procedures, program processes, or instructions.'' The agency's
assessment is that this rule falls within this category of actions and
that no extraordinary circumstances exist which would require
preparation of an environmental assessment or environmental impact
statement for this rule.
Controlling Paperwork Burdens on the Public
This rule does not require any recordkeeping or reporting
requirements or other information collection requirements as defined in
5 CFR 1320 not already approved for use and, therefore, imposes no
additional paperwork burden on the public. Accordingly, the review
provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501, et
seq.) and implementing regulations at 5 CFR 1320 do not apply.
List of Subjects in 36 CFR Part 223
Exports, Government contracts, National forest, Reporting and
recordkeeping requirements, Timber sales.
Therefore, for the reasons set forth in the preamble, it is
proposed to amend part 223 of title 36 of the Code of Federal
Regulations as follows:
PART 223--SALE AND DISPOSAL OF NATIONAL FOREST SYSTEM TIMBER
1. The authority citation for part 223 continues to read as
follows:
Authority: 90 Stat. 2958, 16 U.S.C. 472a; 98 Stat. 2213, 16
U.S.C. 618, unless otherwise noted.
Subpart B--Timber Sale Contracts
2. Section 223.85 is revised to read as follows:
Sec. 223.85 Noncompetitive sale of timber.
(a) Forest officers may sell, within their authorization, without
further advertisement, at not less than appraised value, any timber
previously advertised for competitive bids but not sold because of lack
of bids and any timber on uncut areas included in a contract which has
been terminated by abandonment, cancellation, contract period
expiration, or otherwise if such timber would have been cut under the
contract. This authority shall not be utilized if there is evidence of
competitive interest in the product.
(b) Extraordinary conditions, as provided for in 16 U.S.C. 472(d),
are defined to include the potential harm to natural resources,
including fish and wildlife, and related circumstances arising as a
result of the award or release of timber sale contracts pursuant to
section 2001(k) of Public Law 104-19 (109 Stat. 246). Notwithstanding
the provisions of paragraph (a) or any other regulation in this part,
for timber sale contracts that have been or will be awarded or released
pursuant to section 2001(k) of Public Law 104-19 (109 Stat. 246), the
Secretary of Agriculture may allow forest officers to, without
advertisement, modify those timber sale contracts by substituting
timber from outside the sale area specified in the contract for timber
within the timber sale contract area.
Dated: March 28, 1996.
Dan Glickman,
Secretary of Agriculture.
[FR Doc. 96-8095 Filed 4-2-96; 8:45 am]
BILLING CODE 3410-11-M
Complete official Federal Register PDF
FR Doc. 96-8036 Special Conditions: Israel Aircraft Industries (IAI), Model Galaxy, High-Intensity Radiated Fields
[Federal Register Volume 61, Number 65 (Wednesday, April 3, 1996)]
[Rules and Regulations]
[Pages 14607-14608]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-8036]
========================================================================
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. 65 / Wednesday, April 3, 1996 / Rules
and Regulations
[[Page 14607]]
DEPARTMENT OF TRANSPORTATION
Federal Aviation Administration
14 CFR Part 25
[Docket No. NM-118; Special Conditions No. 25-ANM-112]
Special Conditions: Israel Aircraft Industries (IAI), Model
Galaxy, High-Intensity Radiated Fields
AGENCY: Federal Aviation Administration, DOT.
ACTION: Final special conditions.
-----------------------------------------------------------------------
SUMMARY: These special conditions are issued for the Israel Aircraft
Industries (IAI) Model Galaxy airplane. The new airplane will utilize
new avionics/electronic systems, such as electronic displays and
electronic engine controls, that perform critical functions. The
applicable regulations do not contain adequate or appropriate safety
standards for the protection of these systems from the effects of high-
intensity radiated fields (HIRF). These special conditions contain the
additional safety standards that the Administrator considers necessary
to establish a level of safety equivalent to that established by the
existing airworthiness standards.
EFFECTIVE DATE: May 3, 1996.
FOR FURTHER INFORMATION CONTACT: Timothy Dulin, FAA, Standardization
Branch, ANM-113, Transport Airplane Directorate, Aircraft Certification
Service, 1601 Lind Avenue SW., Renton, Washington 98055-4056; telephone
(206) 227-2141; facsimile (206) 227-1149.
SUPPLEMENTARY INFORMATION:
Background
On July 29, 1992, Israel Aircraft Industries (IAI), Ben Gurion
International Airport, Tel Aviv 70100, Israel, applied for a new type
certificate in the transport airplane category for the Model Galaxy
airplane. On April 19, 1995, IAI applied for an extension of the
original application and selected June 21, 1994, as the new reference
date of application. The Model Galaxy is a derivative of the IAI Model
1125 Westwind Astra and is designed to be a long-range, high-speed
airplane with a swept low wing and two aft-fuselage-mounted Pratt &
Whitney Canada (PWC) 306A engines. The Model Galaxy will have a maximum
takeoff weight of 33,450 pounds, a conventional empennage, a crew of
two, and will be operated as an executive/corporate or commuter
airplane with a maximum seating capacity of 19 passengers.
Type Certification Basis
Under the provisions of Sec. 21.17, IAI must show, except as
provided in Sec. 25.2, that the Model Galaxy meets the applicable
provisions of part 25, effective February 1, 1965, as amended by
Amendments 25-1 through 25-82. In addition, the proposed certification
basis for the Model Galaxy includes part 34, effective September 10,
1990, including all amendments in effect at the time of certification;
and part 36, effective December 1, 1969, including all amendments in
effect at the time of certification. No exemptions are anticipated.
These special conditions form an additional part of the type
certification basis. In addition, the certification basis may include
other special conditions that are not relevant to these special
conditions.
If the Administrator finds that the applicable airworthiness
regulations (i.e., part 25, as amended) do not contain adequate or
appropriate safety standards for the Model Galaxy because of a novel or
unusual design feature, special conditions are prescribed under the
provisions of Sec. 21.16 to establish a level of safety equivalent to
that established in the regulations.
Special conditions, as appropriate, are issued in accordance with
Sec. 11.49 of the FAR after public notice, as required by Secs. 11.28
and 11.29, and become part of the type certification basis in
accordance with Sec. 21.17(a)(2).
In addition to the applicable airworthiness regulations and special
conditions, the Model Galaxy must comply with the fuel vent and exhaust
emission requirements of part 34 and the noise certification
requirements of part 36, and the FAA must issue a finding of regulatory
adequacy pursuant to Sec. 611 of Public Law 92-574, the ``Noise Control
Act of 1972.''
Special conditions are initially applicable to the model for which
they are issued. Should the type certificate for the model be amended
later to include any other model that incorporates the same novel or
unusual design feature, the special conditions would also apply to the
other model under the provisions of Sec. 21.101(a)(1).
Novel or Unusual Design Features
The Model Galaxy airplane incorporates new avionic/electronic
systems, such as electronic displays and electronic engine controls,
that perform critical functions. These systems may be vulnerable to
high-intensity radiated fields external to airplane.
Discussion
There is no specific regulation that addresses protection
requirements for electrical and electronic systems for HIRF. Increased
power levels from ground-based radio transmitters and the growing use
of sensitive electrical and electronic systems to command and control
airplanes have made it necessary to provide adequate protection.
To ensure that a level of safety is achieved equivalent to that
intended by the applicable regulations, special conditions are needed
for the IAI Galaxy to require that electrical and electronic systems
which perform critical functions be designed and installed to preclude
component damage and interruption of function due to both the direct
and indirect effects of HIRF.
High-Intensity Radiated Fields (HIRF)
With the trend toward increased power levels from ground-based
transmitters, plus the advent of space and satellite communications,
coupled with electronic command and control of the airplane, the
immunity of critical digital avionics systems to HIRF must be
established.
It is not possible to precisely define the HIRF to which the
airplane will be exposed in service. There is also uncertainty
concerning the effectiveness of airframe shielding for HIRF.
Furthermore, coupling of electromagnetic energy to cockpit-installed
equipment through the cockpit window apertures is undefined. Based on
surveys and analysis of existing HIRF emitters, an adequate level of
protection exists when compliance with the HIRF
[[Page 14608]]
protection special condition is shown with either paragraphs 1 or 2
below:
1. A minimum threat of 100 volts per meter peak electric field
strength from 10 KHz to 18 GHz.
a. The threat must be applied to the system elements and their
associated wiring harnesses without the benefit of airframe shielding.
b. Demonstration of this level of protection is established through
system tests and analysis.
2. A threat external to the airframe of the following field
strengths for the frequency ranges indicated.
------------------------------------------------------------------------
Peak (V/ Average (V/
Frequency M) M)
------------------------------------------------------------------------
10 KHz-100 KHz.................................. 50 50
100 KHz-500 KHz................................. 60 60
500 KHz-2 MHz................................... 70 70
2 MHz-30 MHz.................................... 200 200
30 MHz-100 MHz.................................. 30 30
100 MHz-200 MHz................................. 150 33
200 MHz-400 MHz................................. 70 70
400 MHz-700 MHz................................. 4,020 935
700 MHz-1 GHz................................... 1,700 170
1 GHz-2 GHz..................................... 5,000 990
2 GHz-4 GHz..................................... 6,680 840
4 GHz-6 GHz..................................... 6,850 310
6 GHz-8 GHz..................................... 3,600 670
8 GHz-12 GHz.................................... 3,500 1,270
12 GHz-18 GHz................................... 3,500 360
18 GHz-40 GHz................................... 2,100 750
------------------------------------------------------------------------
As discussed above, these special conditions are applicable to the
IAI Model Galaxy. Should IAI apply at a later date for a change to the
type certificate to include another model incorporating the same novel
or unusual design feature, the special conditions would apply to that
model as well, under the provisions of Sec. 21.101(a)(1).
Discussion of Comments
Notice of proposed special conditions No. SC-95-6-NM for the IAI
Model Galaxy airplanes was published in the Federal Register on October
30, 1995 (60 FR 55221). No comments were received, and the special
conditions are adopted as proposed.
Conclusion
This action affects certain design features only on the IAI Galaxy
airplane. It is not a rule of general applicability and affects only
the manufacturer who applied to the FAA for approval of these features
on the airplane.
List of Subjects in 14 CFR Part 25
Aircraft, Aviation safety, Reporting and record keeping
requirements.
The authority citation for these special conditions is as follows:
Authority: 49 U.S.C. 106(g), 40113, 44701, 44702, 44704.
The Special Conditions
Accordingly, pursuant to the authority delegated to me by the
Administrator, the following special conditions are issued as part of
the type certification basis for the IAI Model Galaxy airplanes.
1. Protection from Unwanted Effects of High-Intensity Radiated
Fields (HIRF). Each electrical and electronic system that performs
critical functions must be designed and installed to ensure that the
operation and operational capability of these systems to perform
critical functions are not adversely affected when the airplane is
exposed to high-intensity radiated fields.
2. For the purpose of these special conditions, the following
definition applies:
Critical Functions. Functions whose failure would contribute to or
cause a failure condition that would prevent the continued safe flight
and landing of the airplane.
Issued in Renton, Washington, on March 25, 1996.
Darrell M. Pederson,
Acting Manager, Transport Airplane Directorate Aircraft Certification
Service, ANM-100.
[FR Doc. 96-8036 Filed 4-2-96; 8:45 am]
BILLING CODE 4910-13-M
Complete official Federal Register PDF
FR Doc. 96-7978 Oregon Caves National Monument, Admission to Caves
[Federal Register Volume 61, Number 65 (Wednesday, April 3, 1996)]
[Rules and Regulations]
[Pages 14617-14618]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-7978]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF INTERIOR
National Park Service
36 CFR Part 7
RIN 1024-AC26
Oregon Caves National Monument, Admission to Caves
AGENCY: National Park Service, Interior.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The National Park Service (NPS) is publishing this final rule
to remove an existing regulation that prohibits children under the age
of six years from entering Oregon Caves at Oregon Caves National
Monument. Elimination of this regulation will allow children to enter
the Caves, regardless of age. The existing age restriction is not
necessary to provide safe and quality interpretive tours in the Caves.
The effect of this removal is to establish a more equitable criteria
for allowing children access to the caves.
EFFECTIVE DATE: This final rule becomes effective on May 3, 1996.
FOR FURTHER INFORMATION CONTACT: Craig W. Ackerman, Superintendent,
Oregon Caves National Monument. Telephone 503-592-2100.
SUPPLEMENTARY INFORMATION:
Background
This final regulation addresses a specific management problem
involving access to the only public tour route in Oregon Caves. The
present restriction found at 36 CFR 7.49, states that ``Children under
the age of 6 are not permitted to enter the caves.'' A search of
historical records has failed to find any extensive discussion of or
justification for this particular age limit. No other Park Service
cave, open for public tours, has a similar regulatory restriction for
general tours.
Employees who give the cave tours or sell tickets for the tours
generally make the determination as to whether a child wanting to enter
the caves is under six years of age. Since most parents do not carry
documentation of the age of a child, verification of age is usually not
possible. Some parents become upset when their children are denied
access to the Caves. The age limit restriction has been the most common
visitor complaint to both park and concession employees over the last
few decades. Denying access to children who can physically and safely
travel through the Caves contradicts one of the management objectives
of Oregon Caves National Monument's General Management Plan, which is
to ``Provide quality interpretive service that increases the visitors'
knowledge, appreciation and enjoyment of the resources at Oregon
Caves.''
There appears to be little justification for using six years of age
in determining who enters the Caves. The width of tread, number and
rise of steps, the length of the tour, and the height of railings
better determine whether visitors can safely negotiate the cave tour.
Renovation of the entire trail system, which is being designed with
children in mind, is currently in the planning stage. This revision
would greatly reduce visitor conflicts by instituting safety
restrictions that are fair and equitable. Sufficient
[[Page 14618]]
discretionary authority can be found at 36 CFR 1.5 (Closures and public
use limits) and at 36 CFR 1.7(b) (Park compendium) to safely regulate
access to the Caves.
On March 14, 1995, the NPS published the proposed regulation that
would delete this special regulation (60 FR 13662). Public comment was
invited. The comment period closed on May 15, 1995. No comments were
received during the comment period.
Drafting Information
The primary authors of this final rule are Craig W. Ackerman, Area
Manager of Oregon Caves National Monument and Dennis Burnett,
Washington Office of Ranger Activities, National Park Service.
Paperwork Reduction Act
This final rule does not contain collections of information
requiring approval by the Office of Management and Budget under the
Paperwork Reduction Act of 1995.
Compliance with Other Laws
This rule was not subject to Office of Management and Budget review
under Executive Order 12866. The Department of the Interior determined
that this document will not have a significant economic effect on a
substantial number of small entities under the Regulatory Flexibility
Act (5 U.S.C. 601 et seq). The economic effects of this rulemaking are
local in nature and negligible in scope.
The NPS has determined that this final rule will not have a
significant effect on the quality of the human environment, health and
safety because it is not expected to:
(a) Increase public use to the extent of compromising the nature
and character of the area or causing physical damage to it;
(b) Introduce non-compatible uses which might compromise the nature
and characteristics of the area, or cause physical damage to it;
(c) Conflict with adjacent ownerships or land uses; or
(d) Cause a nuisance to adjacent owners or occupants. Based upon
this determination, this regulation is categorically excluded from the
procedural requirements of the National Environmental Policy Act (NEPA)
by Departmental regulations in 516 DM 6, (49 FR 21438). As such,
neither an Environmental Assessment (EA) nor an Environmental Impact
Statement (EIS) has been prepared.
List of Subjects in 36 CFR Part 7
National parks, Reporting and recordkeeping requirements.
In consideration of the foregoing, 36 CFR Chapter I, is amended as
follows:
PART 7--SPECIAL REGULATIONS, AREAS OF THE NATIONAL PARK SYSTEM
1. The authority citation for part 7 continues to read as follows:
Authority: 16 U.S.C. 1, 3, 9a, 460(q), 462(k); Sec. 7.96 also
issued under D.C. Code 8-137 (1981) and D.C. Code 40-721 (1981).
Sec. 7.49 [Removed]
2. Section 7.49 is removed.
Dated: March 14, 1996.
George T. Frampton, Jr.,
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 96-7978 Filed 4-2-96; 8:45 am]
BILLING CODE 4310-70-P
Complete official Federal Register PDF
FR Doc. 96-7965 Pioneers' Preference Payments for Initial Authorizations in the Broadband Personal Communications Service
[Federal Register Volume 61, Number 65 (Wednesday, April 3, 1996)]
[Rules and Regulations]
[Pages 14672-14676]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-7965]
=======================================================================
-----------------------------------------------------------------------
FEDERAL COMMUNICATIONS COMMISSION
47 CFR Chapter I
[FCC 96-94]
Pioneers' Preference Payments for Initial Authorizations in the
Broadband Personal Communications Service
AGENCY: Federal Communications Commission.
[[Page 14673]]
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Commission released this Order specifying the payment
obligations and procedures for the Pioneers' preference recipients in
the Broadband Personal Communications Service. This Order is necessary
to inform the parties to this action of their obligations and to
explain the procedures for payments. The intended effect of this action
is to ensure the parties have the information they require for timely
and accurate payments.
EFFECTIVE DATE: June 3, 1996.
FOR FURTHER INFORMATION CONTACT: Lisa Warner, (202) 418-0620, Wireless
Telecommunications Bureau, Commercial Wireless Division.
SUPPLEMENTARY INFORMATION: This is the text of the Order, adopted March
8, 1996, released March 11, 1996 concerning: American Personal
Communications, File No. 15000-CW-L-94, Call Sign: KNLF200; Cox Cable
Communications, Inc., File No. 15001-CW-L-94, Call Sign: KNLF201;
Omnipoint Communications, Inc., File No. 15002-CW-L-94, Call Sign:
KNLF202. This order is available for inspection and copying during
normal business hours the Commercial Wireless Division Legal Branch,
Room 7130, 2025M Street, N.W., Washington, D.C., and also may be
purchased from the Commission's copy contractor, International
Transcription Service, at (202) 857-3800, 2100 M Street, N.W., Suite
140, Washington, D.C. 20037.
Order
I. Introduction and Background
1. By this action we specify the payment obligations and procedures
for the Pioneers' preference recipients in the Broadband Personal
Communications Service (``PCS''): American Personal Communications
(``APC''), Cox Cable Communications, Inc. (``Cox''), and Omnipoint
Communications, Inc. (``Omnipoint'') (collectively, ``Pioneers''). The
Pioneers will pay to the United States Treasury a sum of $701,780,378,
plus interest, over the next five years. The action is taken pursuant
to legislation implementing the General Agreement on Tariffs and Trade
(``GATT legislation''), enacted December 8, 1994.
2. In December 1993, the Commission granted Pioneers' preferences
to APC, Cox and Omnipoint for their innovative work in the development
of PCS in the 2 GHz band. The Commission determined that, if otherwise
qualified, APC would be licensed to use Channel Block A in the
Washington-Baltimore Major Trading Area (``MTA''); Cox would be
licensed to use Channel Block A in the Los Angeles-San Diego MTA; and
Omnipoint would be licensed to use Channel Block A in the New York MTA.
3. On December 13, 1994, we granted the Broadband PCS license
applications filed by APC, Cox, and Omnipoint based upon their
Pioneers' preference awards (``Pioneers Licensing Order''). Each grant
is conditioned on, inter alia, each licensee paying to the United
States Treasury an amount equal to 85 percent of the adjusted value of
its license calculated in accordance with Section 801 of the GATT
legislation. The adjusted value of the licenses are based on the high
bids for comparable licenses in the broadband PCS auction for the A and
B frequency blocks. The GATT legislation provides that payments are not
to commence until that auction is completed and after the Pioneers'
license grants have become final and no longer subject to
administrative or judicial review. At the time we adopted the Pioneers
Licensing Order, the auction for the A and B block licenses was not
completed and the Pioneers' preferences and license grants, as well as
the constitutionality of the GATT legislation, had become the subject
of several judicial challenges. The A and B block auction was completed
on March 13, 1995, and the litigation has concluded. Accordingly, the
Pioneers' license conditions are subject to this subsequent Order
specifying payment procedures and amounts.
II. Discussion
A. Payment Amounts
4. Section 801 of the GATT legislation amended Section 309(j) of
the Communications Act of 1934 to require that the Commission recover a
portion of the value of a pioneer's preference recipient's license, and
establishes a payment formula of 85 percent of the adjusted value of
the license. Based on the formula in the GATT legislation, we
calculated the average per population price established by competitive
bidding for frequency blocks A and B in the twenty largest MTAs,
excluding the MTAs awarded to the Pioneers, to be $15.48. We then
reduced this average per capita bid amount by 15 percent to obtain the
adjusted per capita value of the Pioneers' licenses, which we
determined to be $13.16. Finally, we multiplied this discounted per
population figure by the 1990 Census population figures for the
respective service areas of the Pioneers' licenses. As a result of this
calculation, we have determined that the Pioneers are required to pay
the following amounts for their licenses: APC for the Washington-
Baltimore MTA--$102,343,539; Cox for the Los Angeles-San Diego MTA--
$251,918,526; and Omnipoint for the New York MTA--$347,518,309. We note
that these amounts compare with $211,771,000 paid for the competitive B
block license in Washington-Baltimore (a 52 percent difference);
$493,500,000 paid for the Los Angeles-San Diego MTA B block license (a
49 percent difference); and $442,712,000 paid for the New York MTA B
block license (a 22 percent difference).
B. Commencement of Payments
5. The GATT legislation further directs that the Pioneers are to
commence their payments no later than either the date of completion of
the auction of comparable licenses, or thirty days after Pioneers'
preferences are awarded and the licenses are no longer subject to
administrative or judicial review. The Commission commenced its auction
of licenses for broadband PCS operations on frequency blocks A and B on
December 5, 1994, and completed this auction on March 13, 1995. At the
time the auction was completed, however, several judicial challenges to
both the GATT legislation and the Pioneers' awards remained pending,
delaying the finality of the licenses awarded to the Pioneers. That
litigation has ended. Pursuant to the GATT legislation, the license
grants (and the underlying pioneer's preferences) are not subject to
further administrative or judicial review. Accordingly, Pioneers'
installment payments will commence 30 days after the adoption of this
Order, on April 8, 1996.
C. Interest Rate
6. The GATT legislation states that the Pioneers shall be permitted
to pay for the licenses through guaranteed installment payments over a
period of five years subject to: (1) The payment only of interest on
unpaid balances during the first two years; and (2) payment of the
unpaid balance and interest thereon after the end of such two years in
accordance with the regulations prescribed by the Commission. The text
of the statute is silent on the interest rate to be charged except for
its reference to the Commission's regulations. The House Committee
Report describing this provision states that payment of the principal
and interest should be ``in a manner consistent with the installment
payment rules adopted by the Commission as part of its general
competitive bidding regulations.'' The
[[Page 14674]]
House Committee Report also states that ``[t]he Committee anticipates
that the Commission will calculate interest payments based on the
prevailing prime rate.'' The overall goal of the pioneer's preference
provisions in the GATT legislation was to ``ensure that holders of a
pioneer's preference pay an equitable amount for use of their
spectrum.''
7. Based on the language and legislative history, we conclude that
the GATT legislation provides the Commission discretion to establish an
interest rate for the Pioneer's payments that is ``in accordance with
[our] regulations,'' and that the legislative history indicates that
Congress intended that the Commission would use certain established
guidelines in setting the rate; i.e., the ``general'' competitive
bidding regulations and the prevailing prime rate. The Commission's
general competitive bidding regulations establish guidelines for
imposing installment payment plans for auctioned licenses. These rules
provide the Commission, on a service-by-service basis, the flexibility
to ``vary the interest rate and the payment schedule for installment
payments.'' Specifically, Section 1.2110(e)(3) of the Commission's
rules provides that, unless other terms are specified in the rules of
particular services, installment plans will: (1) impose interest based
on the rate of U.S. Treasury obligations (with maturities close to the
duration of the license term); (2) allow installments to be paid over
the full license term; (3) begin with interest-only payments for the
first two years; and (4) amortize principal and interest over the
remaining term of the license.
8. In applying these general rules to specific services, the
Commission has adopted a range of interest rates for installment plans
based on the circumstances of the service and the objectives behind
permitting installment payments--typically to small businesses. For
example, in the Interactive Video and Data Service auction rules, the
Commission adopted an interest rate for small business installment
payments based on the five-year U.S. Treasury note rate. In the auction
for narrowband PCS regional licenses, we permitted certain designated
entities to pay installments at the 10-year U.S. Treasury Note rate,
plus 2.5 percent. Our competitive bidding rules for frequency block C
in broadband PCS (smaller Basic Trading Area licenses) make available
three different interest rates depending on the economic size of the
winning bidder: 10-year U.S. Treasury Note, plus 3.5 percent; 10-year
U.S. Treasury Note, plus 2.5 percent; and 10-year U.S. Treasury Note.
Eligibility for the lower, flat 10-year Treasury Note interest rate is
limited to small businesses in the ``entrepreneurs' block'' auction. We
have no specific installment payment rules for frequency blocks A and B
in broadband PCS.
9. For each of the Pioneer's installment payments, we have decided,
within our discretion, to impose an interest rate equal to the five-
year Treasury Note, plus 2.5 percent, as of the date of adoption of
this Order. We typically use the U.S. Treasury obligations of maturity
equal to the license term because the license and payment terms are of
the same duration. Here the license and payment term are different, and
we will use the rate for U.S. Treasury obligations with maturity at the
end of the payment term. Thus, starting with the five-year Treasury
Note rate as a basis for the Pioneers' interest rate is consistent with
the operation of our general installment payment rules and the GATT
legislation.
10. We add 2.5 percent to the base Treasury Note rate for several
reasons. First, we believe that this interest rate will help fulfill
the purpose of the GATT legislation by ensuring that the pioneer's
preference recipients pay an ``equitable amount'' for use of the
spectrum. Although the Pioneer's licenses were granted over 13 months
ago, and one Pioneer has begun operating, none of the Pioneer's have
paid for their use of the spectrum. In comparing similarly situated
licensees, the Pioneers received a discount on the value of the license
and can pay over time, supra para. 4, whereas the other A and B block
licenses in broadband PCS were required to make their payments in full
shortly after license grant. The Pioneers have been adequately rewarded
for their innovations by receiving guaranteed licenses at discount.
Second, this rate is below the prime rate benchmark referenced in the
legislative history, which is currently 8.5 percent. Assuming that the
prime rate is what the Pioneers would be able to obtain if private
financing is sought, this rate for government financing of the license
costs will further benefit the Pioneers, who will avoid the higher
interest rates and other transactional costs associated with using
private sources to finance their license payment. Finally, this
approach to establishing an interest rate is fully consistent with our
``general'' rules for imposing installment payment plans and our
experience in fashioning an interest rate that best fits the
circumstances.
11. With respect to the actual interest rate, the five-year T-Note
rate on the adoption date of this Order, with maturity in February of
2001 (the closest to the duration of the payment term) is 5.25 percent.
Accordingly, the amounts to be paid by the Pioneers will be subject to
5.25 plus 2.5 percent, for a total interest rate of 7.75 percent.
Interest will begin accruing as of the adoption of this Order.
D. Installment Payment Terms and Conditions
12. As to the other aspects of the installment payments, the
statute leaves us little discretion to establish different terms. As
noted above and contrary to our ``general'' installment payment rules,
the statute precludes the Commission from allowing installment payments
for the duration of the 10-year license term. The GATT legislation
specifically provides for a five-year payment period. In addition, like
our general installment payment rules, interest-only payments are
permitted for the first two years. Thereafter, unpaid principal balance
and interest will be amortized over the remaining three years.
13. The first interest payment will be due on April 8, 1996, thirty
(30) days after the adoption of this Order. The first payments will be
the following: APC--$660,968.69; Cox--$1,626,973.81; and Omnipoint--
$2,244,389.08. Thereafter the Pioneers' payments will be due on a
quarterly basis on the last day of each quarter. Thus, the second
payment will be due on April 30, 1996. The second payment will be the
following: APC--$1,321,937.38; Cox--$3,253,947.62; and Omnipoint--
$4,488,778.16. The remaining payment dates and amounts are established
in the attached schedule.
14. In addition, the Pioneers' installment payments will be
``guaranteed'' by their licenses. Consistent with our general
competitive bidding rules, the Pioneers' licenses will continue to be
conditioned upon the full and timely performance of their respective
payment obligations under their installment plans. The license
conditions will be modified to reflect the specific terms of the
payments set forth above. If a Pioneer is more than ninety (90) days
delinquent in any payment, it shall be deemed to be in default and the
Commission's general rules will apply.
E. Omnipoint's Request for Special Installment Terms
15. We have decided not to differentiate among the three Pioneers
when establishing the installment
[[Page 14675]]
payment terms and not to compare their situation to that of applicants
for the broadband PCS entrepreneurs' block licenses. Omnipoint recently
suggested that the Commission's new rules for small business pioneers
should be applied to it and has requested that its payment terms be as
equivalent as possible to the block C small business installment
payment plan. Omnipoint specifically asks for interest-only payments
for five years and a single, lump-sum payment due at the end of the
fifth year. We deny this request for the following reasons.
16. First, we do not believe that the GATT legislation contemplates
different treatment for the Pioneers or the type of deferred-principal
payment plan requested by Omnipoint. As noted above, the text of the
statute states that the installment payment terms shall be ``the
payment only of interest on unpaid balances during the first 2 years *
* * and * * * payment of the unpaid balance and interest thereon after
the end of such 2 years in accordance with the regulations prescribed
by the Commission.'' The House Commerce Committee Report's section-by-
section analysis says, ``[t]he pioneers shall pay interest only for the
first two years, and interest and principal for the next three years,
pursuant to the Commission's regulations.'' The House Report also
states that payment of the principal and interest should be ``in a
manner consistent with the installment payment rules adopted by the
Commission as part of its general competitive bidding regulations.''
These rules referenced in the statute and the legislative history are
found in Section 1.2110(e)(3) of the Commission's rules and state:
Unless other terms are specified in the rules of particular
services, such [installment] plans will
* * * * *
(iii) begin with interest-only payments for the first two years;
and
(iv) amortize principal and interest over the remaining term of the
license.
There are no Commission rules that would allow an entity making
installment payments to wait until the end of the payment term to make
one lump sum principal payment. We believe that the text of the statute
and its legislative history, read in conjunction with the Commission's
rules, shows that Congress intended that each Pioneer, including
Omnipoint, shall begin paying principal in the third year.
17. Second, we do not believe that Congress or the Commission's
rule cited by Omnipoint contemplate a comparison of Omnipoint with the
C-Block small business applicants. Congress determined in the GATT
legislation that ````the most reasonably comparable licenses'' for
purposes of determining the value of the Pioneers'' licenses were ``the
broadband licenses in the personal communications service for blocks A
and B for the 20 largest markets (ranked by population) in which no
applicant has obtained preferential treatment.'''' The broadband PCS
Pioneers' installment payments are governed by the provisions in
Section 309(j)(13)(E) of the Act discussed above. Thus, our new rules,
adopted pursuant to Section 309(j)(13)(C) of the Act, governing
installment payments for future pioneer's preference recipients that
are similarly situated to designated entities participating in an
auction do not apply here.
18. However, even if the new rules did apply to Omnipoint, we
believe that Omnipoint has misconstrued the purpose of the rule it
cites, which states ``a pioneer that qualifies as a designated entity
will be eligible for installment payments under the same terms and
conditions as other designated entities in that service. In the order
adopting this rule, the Commission rejected a similar deferred payment
proposal offered by Omnipoint. The Commission, instead, adopted its
proposal ``that if an entity receiving a pioneer's preference would be
eligible for installment payments in the auction for that service, the
entity could pay for its pioneer's preference license in installments
under comparable terms and conditions to similarly situated licensees
over a period not to exceed five years. In the auction in which
Omnipoint would have had to participate to obtain its MTA license,
installment payments were not available to small businesses. While the
auction rules in the broadband PCS ``service'' provide an installment
payment option to small businesses obtaining smaller C-Block, BTA
licenses, Omnipoint received a substantially larger A Block MTA license
for its pioneer's preference. This situation was expressly contemplated
when the Commission had earlier rejected Omnipoint's deferred payment
proposal, stating, ``if a small business pioneer chooses, it may apply
for a license in a service as a designated entity either in addition to
or in lieu of its acceptance of a guaranteed pioneer's preference
license.'' We note that an affiliate of Omnipoint's is currently
actively participating in the C-block auction.
19. Finally, as a policy matter, we have previously determined that
the pioneer's preference rule and the rules for the entrepreneurs'
blocks were designed to meet different goals. The Commission permitted
entrepreneurs and small businesses to pay for their licenses in
installments in order to assist businesses who are likely to have
difficulty obtaining adequate financing to obtain licenses in a
competitive bidding environment. We determined that installment
payments would be an effective way to efficiently promote the
participation of small businesses in the provision of broadband PCS.
The pioneer's preference program, on the other hand, is designed to
reward a particular entity for its innovative contributions to a new
service by guaranteeing it a license, at a discounted price, without
requiring it to participate in an auction. When we provided that future
small business pioneers could obtain similar payment terms as similarly
situated licensees, we did not intend to merge these two separate
policy objectives. Rather, we clarify that, as a matter of fairness and
convenience, a small business pioneers preference recipient should get
the same or similar installment payment terms that are available to
other small businesses that obtained comparable licenses in an auction.
F. Other Matters
As a final matter, we note that, on September 22, 1995, a pleading
styled ``Petition to Deny'' was filed against Omnipoint by Whitestone
Wireless, L.P., Southern Personal Communications Systems, and Minco,
P.C.S. The 30-day period to file petitions to deny against the Pioneers
expired on September 26, 1994. Moreover, the GATT legislation states
that the grant of Omnipoint's license and underlying pioneer's
preference awards shall not be subject to administrative or judicial
review. We therefore dismiss the Whitestone Petition as untimely and
moot.
G. Payment Schedule Attention: Pioneer's Preference Recipients
Broadband Personal Communications Service
The first interest payment will be due on April 8, 1996, (30)
thirty days after the adoption of this Order. The first payment will be
the following: APC $660,968.69; Cox $1,626,973.81; Omnipoint
$2,244,389.08. Thereafter, the Pioneer's payments will be due on a
quarterly basis on the last day of each quarter. Thus, the second
payment will be due on April 30, 1996. The second payment will be the
following: APC $1,321,937.38; Cox $3,253,947.62; Omnipoint
$4,488,778.16.
The remaining payment dates and amounts are established in the
attached
[[Page 14676]]
schedule. Mailed remittances must be actually received no later than
April 8, 1996. Hand-carried or couriered remittances can be delivered
up through 11:59 P.M. on Monday, April 8, 1996. Remittances received
after 11:59 P.M. on Monday, April 8, 1996, will be considered late
filed.
H. Instructions for the First and Second Installment Payments
Payments must be made in U.S. dollars, must be in the form of a
wire transfer or cashier's check, and must be made payable to the
``Federal Communications Commission'' or ``FCC''. Installment payments
whether being paid by wire transfer or cashier's check, must be
accompanied by a completed FCC Remittance Advice, Form 159.
A. Form 159
Pioneers must submit an FCC Form 159 when making any payments to
the Commission's lockbox bank. Failure to accurately complete your FCC
Form 159 could result in a delay in processing your remittance. Before
completing an FCC Form 159, read the instructions below. Also, a
correctly completed sample FCC Remittance Advice (Form 159) is
attached.
(1) You must complete all of the blocks in the Payor Information
Section, (Blocks 1 through 10). It is extremely important that you
enter your taxpayer identification number (TIN) in with a prefix of
``0'' in block number 1. Blocks 2 through 10 are self explanatory.
(2) You must complete the following blocks for each ``Item Number
Information'' in accordance with the Instructions For Using FCC Form
159 (but only if the names of the ``payor'' and the ``applicant'' are
different): Block numbers 11, 13, 19, 20, and 21.
(3) You must complete the following auction-specific information in
blocks 12(A), 14(A), 15(A), 16(a) and 17(A). Block 12(A)--FCC Call
Sign,enter your respective call sign; block 14(A)--Payment Type Code,
enter the letters ``ACHD''; block 15(A)--Quantity, enter ``1''; block
16(A)--Fee Due, enter the amount remitted; and block 17(A)--FCC Code 1,
enter ``P''.
B. Paying by Cashier's Check
Each cashier's check and corresponding FCC Remittance Advice (Form
159) must be in an individual envelope and specifically addressed to:
Mellon Bank, P.O. Box #358850, Pittsburgh, PA 15251-5850, Attn: Auction
Payment. If delivering an auction payment in person or by courier, the
check and FCC Remittance Advice (Form 159) must be delivered to Mellon
Bank, Three Mellon Bank Center, 525 William Penn Way, 27th Floor, Room
153-2713, Pittsburgh, PA 15259-0001, (Attn: Wholesale Lockbox Shift
Supervisor).
C. Paying by Wire Transfer
If making an auction payment by wire transfer, fax a completed FCC
Remittance Advice (Form 159) to Mellon Bank at (412) 236-5702 at least
one hour before placing the order for the wire transfer. On the cover
sheet of the fax indicate ``Wire Transfer--Auction Payment for Auction
Event # ``P''. When wiring funds, please give your bank the following
information:
ABA Routing Number: 043000261;
Receiving Bank: Mellon Pittsburgh;
BNF: FCC/AC--9116106;
OBI Field: (Skip one space between each information item)
``AUCTIONPAY'';
FCC Account No. (Exactly as on Form 159, Block #1);
Payor Name (Exactly as on Form 159, Block #3);
Payment Type Code (Exactly as on Form 159, Block #14);
FCC Code 1 (Exactly as on Form 159, Block #17.
For further information, please contact Regina W. Dorsey, Chief,
Billings and Collections Branch at (202) 418-1995 (voice) or (202) 418-
2843 (fax).
Remaining 19 Quarterly Payments
Please see the attached Auction Installment Payment Program (AIP).
Inside the program package you will find the Masterfile Maintenance
Form (Page 19). Please read the package information and complete this
form. Return the form to the address listed on the form. Beginning with
payment number 2 (payment number one was split into two payments, both
of which are due in the month of April) due July 31, 1996, use the AIP
program.
III. Ordering Clauses
20. Accordingly, it is ordered that, effective April 8, 1996, the
payment condition on American Personal Communications' license, call
sign KNLF200, is modified as follows:
This authorization requires that American Personal
Communications shall pay to the United States Treasury $102,343,539,
plus interest, pursuant to the terms and procedures in the above
schedule of payments (and accompanying instructions).
21. It is further ordered that, effective April 8, 1996, the
payment condition on Cox Cable Communications, Inc.'s license, call
sign KNLF201, is modified as follows:
This authorization requires that Cox Cable Communications, Inc.
shall pay to the United States Treasury $251,918,526, plus interest,
pursuant to the terms and procedures in the above schedule of
payments (and accompanying instructions).
22. It is further ordered that, effective April 8, 1996, the
payment condition on Omnipoint Communications, Inc.'s license, call
sign KNLF202, is modified as follows:
This authorization requires that Omnipoint Communications, Inc.
shall pay to the United States Treasury $347,518,309, plus interest,
pursuant to the terms and procedures in the above schedule of
payments (and accompanying instructions).
23. It is further ordered that the pleading styled a ``Petition to
Deny the Award of a Pioneer Preference License to Omnipoint
Corporation'', filed by Whitestone Wireless, L.P., Southern Personal
Communications Systems; and Minco P.C.S., on September 22, 1995, is
hereby dismissed.
Federal Communications Commission.
William F. Caton,
Acting Secretary.
[FR Doc. 96-7965 Filed 4-2-96; 8:45 am]
BILLING CODE 6712-01-P
Complete official Federal Register PDF
FR Doc. 96-7959 Airworthiness Directives; Boeing Model 747-400, 757, and 767 Series Airplanes
[Federal Register Volume 61, Number 65 (Wednesday, April 3, 1996)]
[Rules and Regulations]
[Pages 14608-14615]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-7959]
-----------------------------------------------------------------------
DEPARTMENT OF TRANSPORTATION
14 CFR Part 39
[Docket No. 94-NM-140-AD; Amendment 39-9558; AD 96-07-09]
Airworthiness Directives; Boeing Model 747-400, 757, and 767
Series Airplanes
AGENCY: Federal Aviation Administration, DOT.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: This amendment adopts a new airworthiness directive (AD),
applicable to Boeing Model 747-400, 757, and 767 series airplanes, that
requires a revision to the Airplane Flight Manual that advises flight
crews to monitor the engine indication and crew alerting system (EICAS)
for ``status'' level messages pertaining to impending engine fuel
filter bypass. This amendment also requires the installation of
upgraded EICAS computers that provide ``advisory'' level messages to
indicate such bypass conditions. This amendment is prompted by a
finding that EICAS computers currently installed on these airplanes do
not provide an appropriate indication to the flight crew of an
impending engine fuel filter bypass condition. The actions specified by
this AD are intended to ensure that the flight crew is appropriately
aware of conditions involving a severely contaminated airplane fuel
system and the associated increased potential for engine power loss.
EFFECTIVE DATE: May 3, 1996.
ADDRESSES: Information related to this action may be examined at the
Federal Aviation Administration (FAA), Transport Airplane Directorate,
Rules Docket No. 94-NM-140-AD, 1601 Lind Avenue, SW., Renton,
Washington.
FOR FURTHER INFORMATION CONTACT: G. Michael Collins, Aerospace
Engineer, Propulsion Branch, ANM-140S, FAA, Seattle Aircraft
Certification Office, 1601 Lind Avenue, SW., Renton, Washington;
telephone (206) 227-2689; fax (206) 227-1181.
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 Boeing Model 747-400, 757, and 767
series airplanes was published in the Federal Register on May 24, 1995
(60 FR 27446). That action proposed to require a revision to the FAA-
approved Airplane Flight Manual (AFM) that would advise flight crews to
monitor the engine indication and crew alerting system (EICAS) for
``status'' level messages pertaining to impending engine fuel filter
bypass. That action also proposed to require the installation of
upgraded EICAS computers that provide ``advisory'' level messages to
indicate such bypass conditions.
Interested persons have been afforded an opportunity to participate
in the making of this amendment. Due consideration has been given to
the comments received.
Support for the Proposal
One commenter supports the proposed rule.
Request To Withdraw the Proposal: Addressed Unsafe Condition Is
Extremely Remote
One commenter requests that the FAA define ``unsafe condition'' as
required by part 39 (``Airworthiness directives'') of the Federal
Aviation Regulations (FAR) (14 CFR 39), and discern whether a condition
is unsafe if its occurrence is ``extremely remote.'' This commenter
points out that data previously presented to the FAA demonstrate that
the risk of solid particulate contaminated fuel in excess of that
already addressed during engine certification is ``less than 1 x
108 [sic],'' making such contamination an ``extremely remote
[sic]'' event. This
[[Page 14609]]
commenter asserts that, if the risk of gross fuel contamination is
considered extremely remote, then it does not matter that the flight
crew be made aware of such contamination, since the possibility that
gross contamination will occur does not warrant that a status level
message on the EICAS system be active. Since part 25.1305(c)(6)
(``Powerplant instruments'') of the FAR requires only that a fuel
filter bypass warning be installed, the present indication system
satisfies the certification standards.
This commenter states that if the occurrence of an event is
``extremely remote'' or less, then the demonstration of an unsafe
condition required by part 39 has not been achieved for this AD action.
Any FAA determination on what is unsafe should not extend beyond the
type certification requirements. This commenter considers that the
FAA's adoption of risk assessment methodology is critical to place the
relative risks addressed in the proposed AD to proper perspective.
The FAA does not concur with the commenter. According to section
39.1 of the FAR (14 CFR 39.1), the issuance of an AD is based on the
finding that an unsafe condition exists or is likely to develop in
aircraft of a particular type design. That section of the FAR does not
specify that an unsafe condition is considered unsafe, or a condition
is ``likely to develop,'' only if it meets a specific reliability
standard, such as suggested by the commenter. Further, the criteria of
the probability of an occurrence being ``extremely remote
(improbable),'' as described in section 25.1309 (``Equipment, systems,
and installations'') of the FAR (14 CFR 25.1309), is on the order of 1
x 10-9. Thus, it is a condition that is not expected to result in
any occurrences during the life of the affected fleet. The FAA points
out, however, that there have been several recent incidents of fuel
contamination on transport category airplanes that caused the blockage
of one or more engine fuel filters. Because of the awareness provided
to the flight crew by the cockpit indication of the impending filter
bypass, the flight crew was able to land the airplanes safely at the
nearest airport. These recent events demonstrate that (1) the risk of
the addressed unsafe condition is much greater than ``extremely
remote;'' and (2) the impending fuel filter bypass message will provide
the flight crew with timely indication and awareness before any
engine's fuel filter is clogged to the point that the contaminated fuel
bypasses the filter and causes operational problems with the engine(s).
Further, as explained in detail in the preamble to the proposal,
relevant service data has led the FAA to determine that the current use
of a ``status'' level message to indicate an impending engine fuel
filter bypass creates an unsafe condition, since such messages do not
provide information to the flight crew at an appropriate level of
awareness to enable them to take immediate action to correct the
condition. Using a ``status'' level message to indicate an impending
engine fuel filter bypass condition could result in the flight crew
being unaware of a severely contaminated airplane fuel system and the
associated increased potential for engine power loss. It is this
condition that the FAA considers to be unsafe for, if it is not
corrected, it could result in the airplane landing with reduced engine
power, or the total loss of engine power before the airplane is able to
reach a suitable landing site.
Request To Withdraw the Proposal: No Documented Occurrences of the
Unsafe Condition
Several commenters contend that there have been no documented in-
service events to justify the proposed AD. These commenters state that
historical jet transport safety records disclose that no accident has
occurred that was related to solid particulate contaminated fuel from
the period of 1959 through 1993, which involved over 230 million
aircraft flights. These commenters point out that, although there have
been numerous occurrences of annunciation to the flight crew of
impending fuel filter bypass, none of the affected fleet has ever
experienced loss of thrust or interruption of power subsequent to a
fuel filter bypass indication. In fact, the opposite situation has
occurred several times: engine power was lost due to contaminated fuel,
but there was no indication of an impending fuel filter bypass
annunciated to the crew. The manufacturer also describes 7 events that
occurred on the affected fleet where permanent loss of thrust greater
than one propulsion system occurred; although 5 of these events were a
result of water contamination and the other 2 were associated with
contamination of the engine vane and bleed control system on a specific
engine type, none of the 7 events were annunciated to the flight crew
by an impending fuel filter bypass indication. These commenters assert
that lack of substantiation for the FAA's position that an unsafe
condition exists is reason to withdraw the proposal.
The FAA does not concur. Although there have been no reported cases
of loss of thrust or interruption of power subsequent to a fuel filter
bypass indication, the potential for this unsafe condition exists as
long as the potential for contaminated fuel exists. This AD action
addresses that potential unsafe condition.
As stated earlier, there have been several recent incidents of fuel
contamination on transport category airplanes that caused the blockage
of one or more engine fuel filters. The flight crews of the incident
airplanes were made aware of this condition by the cockpit indication
of the impending filter bypass and, in each case, were able to land the
airplanes safely. These recent events demonstrate that the impending
fuel filter bypass message should provide the flight crew with timely
indication and awareness before any engine's fuel filter is clogged to
the point that the contaminated fuel bypasses the filter and causes
operational problems with the engine(s). The FAA maintains that early
recognition of an impending fuel filter bypass will reduce the
potential hazards associated with subsequent power loss and engine
shutdowns.
Request To Withdraw the Proposal: Maintenance Practices Should Be
Followed Properly
Several commenters indicate that the unsafe condition could be
better addressed by improving maintenance practices relevant to the
fuel system, rather than by requiring the proposed EICAS upgrade. These
commenters state that ``gross contamination'' of the fuel to the levels
discussed in the notice can only result from long-term negligence and
disregard of standard servicing and maintenance practices. These
commenters contend that appropriate maintenance programs relative to
airplane fuel systems are required by the FAR: namely, parts
121.135(b)(18) (``Maintenance manual requirements--contents'') and
121.1369(b) (``Manual requirements'') [14 CFR 121.135(b)(18) and
21.1369(b)]. To meet the requirements of these regulations, maintenance
programs must entail controls and refueling procedures, including
sampling prior to fueling, to ensure that fueling processes will be
safe and clean. Therefore, if maintenance programs are followed
correctly, there is ample assurance that the possibility of
contamination of the fuel system will be prevented. Finally, these
commenters point out that ensuring that proper aircraft fuel servicing
and storage methods are followed would be far more economical to
operators than installing the proposed EICAS modification.
[[Page 14610]]
The FAA does not concur. Service experience has demonstrated that,
despite regulations that mandate the proper maintenance of fuel
systems, fuel contamination in airplane fuel systems continues to
occur. In fact, subsequent to the issuance of the notice, the FAA was
advised of three recent incidents of fuel system contamination on
transport category airplanes. In these incidents, the engine fuel
filter bypass indication system alerted the flight crew that impending
fuel filter bypass conditions were present on one or more engines:
1. The first of these incidents occurred during the climb phase of
flight. At that time, the crew elected to return to the departure
airport. During the approach to that airport, the other engine's fuel
filter bypass annunciation light illuminated.
2. The second incident occurred three hours after the airplane had
departed the airport. At that time, the fuel filter bypass annunciation
light illuminated on one engine. Following this indication, and during
the airplane's descent to the destination airport, the other engine's
fuel filter bypass annunciation light illuminated.
3. In the third incident, at approximately four hours into the
flight, a fuel filter bypass alert occurred on each of the airplane's
three engines.
Investigation into all three of these events revealed that
apparently the contamination of the airplanes' fuel systems was the
result of malfunctions of the fuel hydrant system installed at a
particular airport where these airplanes took on fuel.
By citing these recent incidents, which demonstrate the need for
flight crew awareness of impending engine fuel filter bypass, the FAA
emphasizes that it is likely events of fuel system contamination will
occur in the future, despite the industry's efforts to maintain a
``clean'' fuel supply.
Fuel contamination can affect the operation of all engines on an
airplane. Section 25.1305(c)(6) of the FAR [14 CFR 25.1305(c)(6)]
requires an indication to alert the flight crew that an engine's fuel
filter is contaminated before the filter is clogged to the point that
the fuel bypasses the filter(s) and allows the contamination to pass to
the engine(s). A separate indication is required for each engine's fuel
filter. The purpose of these requirements is to provide the flight crew
with an indication that the fuel is contaminated before the
contamination causes flameout or operational anomalies of one engine or
multiple engines. This indication of impending engine fuel filter
bypass provides the flight crew with important information when they
still have an opportunity to consider action such as diverting to an
alternative airport.
Request To Withdraw the Proposal: Distraction of Flight Crew by
Alert Messages
Several commenters contend that the proposed ``interim'' action
requiring the flight crew to check the EICAS status page, and the
proposed final action of modifying the EICAS computer to display the
fuel filter bypass message as an ``advisory'' level message, will
result in the confusion and distraction of the flight crew. These
commenters point out that flight crews are trained to check the
``status'' message display before engine start; therefore, checking the
``status'' message display during flight contradicts their basic
operational practices and likely will cause them confusion.
Additionally, the flight crew could be distracted by other ``status''
level messages that may occur during a flight.
Another commenter indicates that the reliability of the sensor
switch for the fuel filter bypass indication is rated at 1 x 10-4.
From this reliability standpoint, it is obvious that ``nuisance
warnings'' (that is, indications of a fuel filter bypass condition when
one does not actually exist) will occur more frequently than will an
actual gross fuel contamination event (which has a 1 x 10-8
probability). In light of this, the commenter considers that the
proposed rule should address the safety concerns that will be created
by the flight crew's response to what may amount to ``nuisance''
messages. This commenter and several others believe that safety will be
reduced when flight crews are tasked to respond to such false
indications by (1) making unnecessary flight diversions, (2) landing at
airports that they are not familiar with; and (3) shutting down engines
needlessly.
The FAA does not concur with the commenters' suggestion that the
requirements of this AD will result in unnecessary distractions or
confusion of the flight crew.
``Status'' level messages do not provide immediate crew awareness;
the only sign given to the crew regarding ``status'' level information
is the appearance of the word ``STATUS'' on the EICAS screen. Under
ordinary circumstances, in order to find out the nature of a ``status''
level message, the flight crew has to take action to review the status.
Such a review normally is done when practical, based on the activity
level in the flight deck; in general, it is not done during flight.
``Advisory'' level messages, on the other hand, are brought to the
flight crew's attention by the appearance of the complete message on
the EICAS screen (e.g., the message ``R ENG FUEL FILT'' appears on the
existing EICAS screen of Model 767 series airplanes that are powered by
Pratt & Whitney JT9D engines). No additional action must be taken by
the flight crew in order to find out the nature of ``advisory'' alerts.
For the reasons discussed in detail in the proposal, the FAA finds
that an ``advisory'' level message is the appropriate level for
alerting the flight crew to an impending fuel filter bypass condition.
The requirement of this AD for the flight crew to respond to EICAS
``status'' level indications relative to an engine fuel filter bypass
message (by first checking the status page) is consistent with the
level of response required for an ``advisory'' level message. In
support of the FAA's position on this issue, two operators commented
that their crews are already trained to check the status page whenever
the status cue appears.
The FAA also does not concur with the commenters' suggestion that
the display of the fuel filter bypass message as an ``advisory'' level
message will cause a reduction in safety. On the contrary, an
``advisory'' level message appears on the upper EICAS display,
providing the flight crew with an immediate awareness of the impending
bypass condition, without the need to look up any status page to obtain
the relevant information necessary for reaction.
With regard to the possibility that flight crews would divert to an
alternative airport because of false indications of impending fuel
filter bypass, the FAA considers that, if false indications are
occurring frequently, then the reliability of the indication system
should be improved. However, other than the reliability level presented
by the commenter, no other data has been presented to the FAA to
indicate that the indication system is not reliable. In fact, one
operator commented that, because the fuel filter bypass system on its
fleet has a good reliability record, the proposed rule would not have
an operational impact on the affected fleet.
The FAA does acknowledge the commenters' concern, however, that
flight crews could divert to alternate airports because of an increased
awareness of other status level messages that may be displayed. To
address this, the FAA has revised paragraphs (a) and (b) of the final
rule to include the following sentence in the text that is to be added
to the Airplane Flight Manual (as interim action):
[[Page 14611]]
``If other status level messages are displayed, the flight crew
may deal with them in accordance with the appropriate operator
procedure.''
Request To Withdraw the Proposal: Current Level of Message
Indication Is Adequate
Several commenters assert that the proposed rule is not necessary
because the current flight crew indication system is adequate. The
flight crew is made aware of fuel filter problems via the ``status''
message system of the EICAS, which they must check prior to dispatch of
the airplane. The current ``status'' level message gives adequate
indication to the flight crew of an impending fuel filter bypass; from
this message, the flight crew can determine what action is required
prior to dispatch. Further, these commenters point out that the Master
Minimum Equipment List (MMEL) does not permit dispatch with an ``engine
fuel filter'' message indicated.
The FAA does not concur with these commenters. The original design
and operational philosophy of the EICAS on the affected airplanes is
that ``status'' level messages are to be reviewed by the flight crew
only prior to dispatch of the airplane. The FAA now considers that this
is not adequate for two reasons:
1. It does not meet the need for immediate crew awareness of an
impending fuel filter bypass during flight. The crew would not be
alerted to the fact that an engine fuel filter had became blocked
during a flight until the operation of one or more engines was
affected. This could result in the flameout of one or all engines.
2. The operational requirements under part 121 of the FAR permit
more than one flight under one ``airplane dispatch.'' This could result
in operating an airplane for several flights without checking for
``status'' level messages. In such cases, a message indicating an
impending fuel filter bypass could go unnoticed by the fight crew for
several flights.
Request To Withdraw the Proposal: Unsafe Condition Is Actually
Water in the Fuel
Two commenters state that the principal source of fuel
contamination in the affected airplanes is from water in the fuel and
the consequent formation of ice particles across the fuel filter due to
the sub-zero temperatures that occur during flight. These commenters
contend that there are either procedures or systems already in place
that effectively control this and thereby eliminate any associated
unsafe condition.
These commenters believe that the original reason for providing
flight crews with immediate indication of an impending engine fuel
filter bypass was to prompt them to activate the fuel heating system.
Some of the aircraft that would be affected by the proposed AD
incorporate a manual fuel heat system designed to increase the
temperature of the fuel upstream of the fuel filter to avoid blockage
of the filter due to ice accumulation. The fuel heat system servo valve
is activated by an electrical switch; and the fuel filter system
contains a differential pressure switch that sends a signal to lights
on the flight deck that indicate an impending fuel filter bypass
condition. The flight crew procedure for responding to this
illumination of the light is to activate the fuel heat system. These
procedures are to ensure that fuel heat is applied to the engine fuel
system to eliminate any blockage due to icing. Other aircraft affected
by the proposed AD have continuous fuel heating, which requires no
flight crew action or immediate indication. In light of this, the
commenters consider that no AD action is necessary.
The FAA does not concur. The original intent of indicating an
impending fuel filter bypass condition was to indicate clogging of the
fuel filter due to fuel contamination, not merely ice formation. While
it is true that the FAA has accepted the inclusion of a procedure in
the AFM for certain airplanes to prompt the flight crew to activate the
fuel heating system when the fuel filter bypass indication is
annunciated, this was not the original, nor only, intent for the
indication. [This has been confirmed by a review of the docket file for
the amendment to part 25 that established FAR 25.1305(c).]
Request To Withdraw the Proposal: ``Gross Contamination'' Is an
Undefined Concern
Several commenters request that the FAA define ``gross
contamination'' of fuel and determine its physical and chemical
properties. These commenters state that gross contamination has not
been defined and documentation of it has not been provided to
substantiate its existence. They consider it unrealistic and
inappropriate for the FAA to mandate protection against a condition
that has not been technically defined. One of these commenters points
to the description offered by the FAA in the preamble to the proposal
and states that fuel system contamination of the particulate size and
concentration described by the FAA would likely cause damage and/or
blockage to other fuel system components and reduce fuel flow without
ever causing an impending fuel filter bypass indication.
Other commenters argue that section 33.67 (``Airworthiness
standards--Fuel system'') of the FAR (14 CFR 33.67) allows for
continued operation of the aircraft with the maximum contamination rate
(specified in the FAR) for a period of time that exceeds the typical
maximum flight leg of the aircraft before the fuel filter bypass valve
opens. Based on this current certification design standard, the
commenters consider that the capacity of the filters currently
installed on the affected airplane is sufficient to allow the airplane
to continue to the destination airport following an impending bypass
indication.
The FAA responds to these comments by pointing out that part 25.997
(``Fuel filter or strainer'') specifies that fuel filters must:
``* * * Have the capacity (with respect to operating limitations
established for the engine) to ensure that engine fuel system
functioning is not impaired, with the fuel contaminated to a degree
(with respect to particle size and density) that is greater than
that established for the engine in part 33 [of the FAR].
``Gross contamination'' is defined in the context of this AD action
to include levels of fuel contamination that are greater than those
established for the engine in part 33 of the FAR. Examples of such
contamination that actually have been found in service include
microbial growth, sealant, lint, metal particles, fuel tank cleaning
chemicals, paper towels, rags, and liquid fertilizer. There also have
been data indicating the existence of other contaminants in the fuel
system that, although unidentified, were severe enough to cause engine
power loss. The numerous reports of in-service incidents associated
with gross fuel contamination demonstrate that, despite the many
industry standards intended to maintain cleanliness of the airplane
fuel supply, contamination of airplane fuel systems will likely occur
in the future. In anticipation of this likelihood, the FAA considers
that an immediate indication of impending engine fuel filter bypass
will provide the flight crew with the appropriate information required
to take action before contamination of the fuel system becomes a source
of engine operational problems.
Requests To Change the AFM Revision Requirement
One commenter requests that the proposed AFM revision be changed to
allow the flight crew the option of continuing the flight to the
original destination, without diverting, if the
[[Page 14612]]
``ENG FUEL FILT'' message illuminates during flight and no other engine
parameter fluctuations (i.e., low fuel flow, low fuel pressure, rotor
speed deterioration, etc.) are evident. The commenter considers this
change in the wording to be necessary in order to decrease the
possibility of confusion on the part of the flight crew should a
nuisance message occur (that is, the message actually is false) and the
flight crew risks diverting to an unfamiliar airport.
The FAA does not agree that a change to the AFM revision is
necessary. As worded in the AD, the text of the AFM revision does not
instruct the flight crew to land at the nearest airport. The AFM
revision provides information to the flight crew to indicate that, if
more than one engine's fuel filter message is displayed, the airplane
fuel system may be contaminated and erratic engine operation or engine
flame out may occur. This addresses the possibility of a false
indication on one engine fuel filter. The wording of the AFM revision
addresses only the situation where there are engine fuel filter
messages for more than one engine's fuel filter, and it leaves the
decision on any flight crew action, including diverting to an
alternative airport, up to the flight crew.
One operator requests that paragraphs (a) and (b) of the proposal
be revised to include the AFM revision regarding ``advisory'' level
messages that is currently contained in proposed paragraph (d)(2); and
that proposed paragraph (d)(2) subsequently be deleted. Proposed
paragraphs (a) and (b) would require an AFM revision relative to status
level messages. Paragraph (d)(2) then would require that, concurrent
with the installation of the upgraded EICAS, operators are to remove
the AFM revision required by paragraphs (a) and (b), and to insert a
new AFM revision pertaining to advisory level messages. This operator
has an AFM assigned to each aircraft in its fleet, and believes that it
would be nearly impossible to ensure that the [(paragraph (d)(2)] AFM
revision gets incorporated concurrently with the installation of the
upgraded EICAS computer, since the upgrade could occur at any time on
the flight line. This operator requests that the proposed AD be revised
so that only one AFM revision would be necessary.
The FAA does not concur. The FAA considers that incorporating both
of the proposed AFM revisions at the same time in the same location in
the AFM could cause undue confusion for the flight crew. For example,
on an airplane having the upgraded EICAS computer, if an ``advisory''
level ENG FUEL FILT message appeared on the EICAS display during
flight, and then later the status cue appeared, the flight crew would
look for a ``status'' level ENG FUEL FILT message on the EICAS status
page. No ``status'' level message would be displayed because the EICAS
computer had been updated to display that message only as an
``advisory'' level message. This could lead the flight crew to distrust
the ``advisory'' level message because of the absence of a ``status''
level message. However, if the upgrade of the EICAS computer were
eventually developed so that it can be accomplished using a method that
incorporates both the ``status'' level message and the ``advisory''
level message in the modified computer, and if either level message can
be selected after the computer is installed (i.e., pin selectable),
then operators could modify their entire fleet and change the message
level and AFM wording across their fleet at the same time. This
capability depends on the method that is finally developed by the
manufacturer to incorporate the upgrade of the EICAS computers. The FAA
acknowledges that there may be other situations and other methods that
could be used to achieve the intent of this portion of the AD. For
these cases, paragraph (e) of the final rule provides operators the
opportunity to request the use of alternative methods of compliance.
Requests To Extend the Compliance Time for Modification
Several commenters request that paragraph (d) of the proposed rule
be revised to extend the compliance time for the modification from the
proposed 4 years to as much as 6 years. These commenters state that it
will take approximately 2 years for Boeing and the EICAS computer
manufacturer to define, develop, and release the modified software
necessary to accomplish the change in message level. Some commenters
point out that certain older model EICAS computers will also require
additional hardware modifications before the required modification can
be installed. One operator is concerned that the modification for the
Model 757 will not be available until after the modifications for the
Model 747-400 and 767 are released.
These commenters state that, once the modification is available,
they will require a minimum of an additional 18 months to modify all of
the affected airplanes in their fleets. Further, the proposed
compliance time will likely require that the modification be installed
during special shop visits, instead of during regularly scheduled
maintenance. This would impose an undue financial burden on operators,
and disproportionate manpower constraints on maintenance facilities.
The FAA does not concur with the commenters' request. In developing
an appropriate compliance time, the FAA considered not only the safety
implications, but the time necessary for design of an acceptable
modification, and normal maintenance schedules for timely
accomplishment of the modification. In light of all of these items, as
well as discussions with the manufacturer, the FAA finds that 4 years
provides an acceptable level of safety, and provides sufficient time to
produce the modification as well as install it on the affected fleet
during regular maintenance intervals. However, paragraph (e) of the
final rule does provide affected operators the opportunity to apply for
an adjustment of the compliance time if data are presented to justify
such an adjustment.
Request To Delete the Requirement for Modification
One commenter concurs with the proposed ``interim'' requirement to
revise the AFM to advise the flight crew to respond to the ``status''
level messages. However, this commenter requests that the proposed
requirement for the modification (upgrade) of the EICAS computer be
deleted because an acceptable modification has not yet been designed
and made available. The commenter suggests that the FAA postpone action
on that specific requirement until the modification is developed and an
adequate cost analysis of it can be made.
The FAA does not concur that delaying this AD is warranted. The FAA
maintains that sufficient technology and data exist to enable the
manufacturer(s) to devise, and operators to install, the EICAS upgrade
within the compliance time provided by the AD. Further, the FAA has
determined that an EICAS upgrade (and accompanying AFM revision) to
provide ``advisory'' level messages of an impending engine fuel filter
bypass condition is the most effective way to positively address the
unsafe condition that is the subject of this AD. The FAA considers that
long-term continued operational safety will be better assured by this
design change rather than by only implementing the ``interim'' action
of revising the AFM to advise the flight crew to respond to the
``status'' level messages.
Request To Allow Dispatch With an Inoperative EICAS
Several commenters request that the proposed AD be revised to
include a
[[Page 14613]]
provision to allow dispatch of the airplane with an inoperative EICAS
computer. These commenters point out that the MMEL for the affected
airplanes currently allows dispatch with one EICAS computer removed or
inoperative for one calendar day. An inoperative or removed EICAS
computer would preclude the display of status messages during that
time, which would be contrary to the requirements of the proposed AD.
These commenters are concerned that dispatch capability under the MMEL
will be reduced or restricted as a result of the proposed AD, and this
would have an extensive operational impact on affected operators. The
commenters believe that the risk of a gross fuel contamination event is
so low that the current MMEL dispatch relief should be continued even
though an ``ENG FUEL FILT'' status message is not available.
The FAA does not concur with the commenters' request. The use of
the status message as a method of providing the flight crew with
indication of an impending fuel filter bypass precludes dispatch with
an inoperative EICAS computer. Dispatching an airplane configured so
that the flight crew does not have the ability to check the ``ENG FUEL
FILT'' status display messages only exacerbates the unsafe condition
addressed by this AD. In order to ensure and maintain the ability of
the flight crew to check these messages during flight, the status
display must be operational. After the EICAS computers have been
modified to provide ``advisory'' level messages to the flight crew to
indicate an impending fuel filter bypass condition, dispatch with an
inoperative EICAS computer will again be permitted under the existing
MMEL.
Request for Additional Cost Impact Information
Several commenters consider that the cost impact information
provided by the FAA in the preamble to the notice is inadequate:
1. Certain of these commenters state that preliminary estimates
from industry indicate that the cost to upgrade the EICAS computers
could be between $18 and $25 million for the affected fleet. One of
these commenters requests that the adoption of the final rule be
postponed to permit operators to obtain additional costs data from the
manufacturer.
2. Another commenter states that the cost analysis presented in the
proposal assumes that all operators will upgrade the EICAS computers to
provide for global positioning system (GPS) navigation, and this will
reduce the cost to accomplish the modification to change the ``engine
fuel filter'' message to an advisory level. The commenter contends that
all operators may not incorporate GPS or other EICAS upgrades within
the compliance time proposed, and the cost to an operator who elects
only to change the level of the engine fuel filter message could be as
much as $100,000 per airplane.
3. One commenter states that the proposed requirement to upgrade
the EICAS computer could include additional incidental costs, such as
rewiring and the installation of cockpit annunciator lights. All of
this could cost $10,000 per airplane, in addition to the EICAS upgrade.
4. Another commenter states that, if the upgraded EICAS computers
are not interchangeable with the non-upgraded computers, the increased
cost to maintain a supply of spare EICAS computers of both
configurations should be included in the cost impact of the AD.
5. One commenter requests that, prior to issuing a final rule, the
FAA perform a full cost-benefit analysis of it in accordance with
Executive Order 12866, and that the results of the analysis be
presented in a supplemental notice of this proposed rulemaking.
The FAA acknowledges these commenters' concerns about the cost
impact of this AD action.
As for the cost of the upgraded EICAS computers, the FAA has
attempted to obtain definitive data to verify what the actual cost of
the ultimate modification will be, but it has been unable to do so. The
FAA invited commenters to provide such information, but received what
can only be called ``best guesses'' and no verifiable cost estimates.
Comments are more likely to be persuasive to the extent that they
provide specific and detailed information regarding actual costs. When
commenters submit simple generalizations about the costs, there is
little that the FAA can consider.
The FAA did attempt to estimate the cost of the EICAS upgrade
required by this AD by reviewing the average costs of similar types of
previous modifications of EICAS computers (and other avionics
components) installed on transport category airplanes. The labor and
parts costs for other individual EICAS modifications have proven to be
quite variable, ranging from 1 to 20 work hours for labor and as much
as $46,000 for parts. Because of these variables and because the
manufacturers have not completed development of the EICAS upgrade, the
FAA's attempt to determine a realistic cost estimate has been somewhat
futile. The FAA is continuing to work with the appropriate
manufacturers to establish verifiable costs of labor and parts
associated with the upgrade specifically required by this AD.
Despite the costs associated with the individual EICAS upgrade
required by this AD, the FAA does expect most operators to accomplish
this upgrade at the same time that they accomplish other upgrades to
the EICAS systems on the affected airplanes. The FAA bases this
expectation on discussions it has held with the pertinent manufacturers
and a review of the history of EICAS upgrades. These have led the FAA
to be confident that the cost of modifying the EICAS computers in
accordance with the requirements of this AD will be shared with other
upgrades to the EICAS computers that are planned to be developed and
made available during the 4-year compliance time of this AD. For
example, as indicated in the proposal, the addition of GPS navigation
capability is one modification that is known to require modification of
the EICAS computers, and this modification likely will be introduced
into the entire fleet of airplanes affected by the this AD within the
4-year compliance time.
In fact, the 4-year compliance time was established specifically in
consideration of allowing sufficient time for operators to incorporate
the EICAS upgrade required by this AD at the same time they incorporate
other upgrades to EICAS that will be available. The intent of this was
to enable operators to reduce the costs of fleet downtime, labor, and
parts. This is not to imply that the EICAS upgrade required by this AD
must be incorporated together with any other change to the EICAS.
Rather, it means that cost-conscious operators have the opportunity of
accomplishing several other modifications of the EICAS concurrently
with the upgrade required by this AD, and thereby reduce their affected
fleet's downtime, labor costs, and parts costs.
As for additional incidental costs that would be associated with
the requirements of this AD, the FAA recognizes that, in accomplishing
the requirements of any AD, operators may incur ``incidental'' costs in
addition to the ``direct'' costs of the specific action required by the
AD. However, the cost analysis in AD rulemaking actions typically does
not include incidental costs. Because incidental costs may vary
significantly from operator to operator, they are almost impossible to
calculate.
As for the interchangeability of the upgraded EICAS computer with
the existing computers, the FAA notes that incorporation of previous
modifications of this type into the EICAS system has always provided
for interchangeability with earlier upgrades. The FAA expects
[[Page 14614]]
that the manufacturer of the EICAS computer will design the
modification for the message level change to maintain
interchangeability of units.
As for the request that the FAA conduct a ``full cost-benefit
analysis'' of the proposed AD in accordance with Executive Order 12866,
the FAA points out that it is not required to do a such an analysis for
each AD. In fact, AD's were explicitly exempted from the Office of
Management and Budget (OMB) coordination process described in Section 6
of that Executive Order. Looking at the reasoning behind this, it is
important first to realize that, as a matter of law, in order to be
airworthy, an aircraft must conform to its type design and be in a
condition for safe operation. The type design is approved only after
the FAA makes a determination that it complies with all applicable
airworthiness requirements. In adopting and maintaining those
requirements, the FAA has already made the determination that they
establish a level of safety that is ``cost- beneficial.'' Second, it is
important to understand that, when the FAA later makes a finding of an
unsafe condition in an aircraft and issues an AD, it means that the
original cost-beneficial level of safety established for that aircraft
is no longer being achieved, and that the required AD actions are
necessary in order to restore that level of safety. Because the
original level of safety has already been determined to be cost-
beneficial, and because the AD does not add an additional regulatory
requirement that increases the level of safety beyond what has been
established by the type design, a full cost-benefit analysis for each
AD would be considered redundant and would be unnecessary.
In general, because AD's require specific actions to address
specific unsafe conditions, they appear to impose costs that would not
otherwise be borne by operators. However, because of the general
obligation of operators to maintain and operate aircraft in an
airworthy condition, this appearance is deceptive. Attributing those
costs solely to the issuance of this AD is unrealistic because, in the
interest of maintaining and operating safe aircraft, prudent operators
would accomplish the required actions even if they were not required to
do so by the AD. In any case, the FAA has determined that direct and
incidental costs are still outweighed by the safety benefits of the AD.
Conclusion
After careful review of the available data, including the comments
noted above, the FAA has determined that air safety and the public
interest require the adoption of the rule with the change previously
described. The FAA has determined that this change will neither
increase the economic burden on any operator nor increase the scope of
the AD.
Cost Impact
There are approximately 1,378 Model 747-400, 757, and 767 series
airplanes of the affected design in the worldwide fleet. The FAA
estimates that 588 airplanes of U.S. registry will be affected by this
proposed AD.
The initial revision to the AFM will take approximately 1 work hour
per airplane to accomplish, at an average labor rate of $60 per work
hour. Based on these figures, the cost impact of this action on U.S.
operators is estimated to be $35,280, or $60 per airplane.
The FAA currently has no specific cost estimates associated with
the installation of upgraded EICAS computers, since the upgrade has not
been developed yet. The FAA has been advised, however, that the
manufacturer is planning other changes to these EICAS computers that
are necessary to provide for GPS navigation capability and other
enhanced features. The compliance time of four years for the EICAS
installation requirements of this AD will allow a portion of the EICAS
computers installed on airplanes affected by this AD to have the
required EICAS message upgrade made concurrently with those other
planned EICAS changes, thereby reducing the costs and scheduling impact
of such changes on operators.
The revision to the AFM that will be required subsequent to the
installation of the upgraded EICAS computers will take approximately 1
work hour per airplane to accomplish, at an average labor rate of $60
per work hour. Based on these figures, the cost impact of this action
on U.S. operators is estimated to be $35,280, or $60 per airplane.
The cost impact figure discussed above is based on assumptions that
no operator has yet accomplished any of the requirements of this AD
action, and that no operator would accomplish those actions in the
future if this AD were not adopted.
Regulatory Impact
The regulations adopted herein will not have substantial direct
effects on the States, on the relationship between the national
government and the States, or on the distribution of power and
responsibilities among the various levels of government. Therefore, in
accordance with Executive Order 12612, it is determined that this final
rule does not have sufficient federalism implications to warrant the
preparation of a Federalism Assessment.
For the reasons discussed above, I certify that this action (1) is
not a ``significant regulatory action'' under Executive Order 12866;
(2) is not a ``significant rule'' under DOT Regulatory Policies and
Procedures (44 FR 11034, February 26, 1979); and (3) will not have a
significant economic impact, positive or negative, on a substantial
number of small entities under the criteria of the Regulatory
Flexibility Act. A final evaluation has been prepared for this action
and it is contained in the Rules Docket. A copy of it may be obtained
from the Rules Docket at the location provided under the caption
``ADDRESSES.''
List of Subjects in 14 CFR Part 39
Air transportation, Aircraft, Aviation safety, Safety.
Adoption of the Amendment
Accordingly, pursuant to the authority delegated to me by the
Administrator, the Federal Aviation Administration amends part 39 of
the Federal Aviation Regulations (14 CFR part 39) as follows:
PART 39--AIRWORTHINESS DIRECTIVES
1. The authority citation for part 39 continues to read as follows:
Authority: 49 U.S.C. 106(g), 40113, 44701.
Sec. 39.13 [Amended]
2. Section 39.13 is amended by adding the following new
airworthiness directive:
96-07-09 Boeing: Amendment 39-9558. Docket 94-NM-140-AD.
Applicability: All Model 747-400, 757, and 767 series airplanes;
certificated in any category.
Note 1: This AD applies to each airplane identified in the
preceding applicability provision, regardless of whether it has been
modified, altered, or repaired in the area subject to the
requirements of this AD. For airplanes that have been modified,
altered, or repaired so that the performance of the requirements of
this AD is affected, the owner/operator must request approval for an
alternative method of compliance in accordance with paragraph (e) of
this AD. The request should include an assessment of the effect of
the modification, alteration, or repair on the unsafe condition
addressed by this AD; and, if the unsafe condition has not been
eliminated, the request should include specific proposed actions to
address it.
Compliance: Required as indicated, unless accomplished
previously.
To ensure that the flight crew is appropriately aware of
conditions involving
[[Page 14615]]
a severely contaminated airplane fuel system and the associated
increased potential for engine power loss, accomplish the following:
(a) For all Model 747-400 series airplanes: Within 60 days after
the effective date of this AD, revise the Limitations Section of the
FAA-approved Airplane Flight Manual (AFM) to include the following
statement. This may be accomplished by inserting a copy of this AD
in the AFM.
``Respond to the EICAS STATUS CUE by checking for the following
status level messages(s):
ENG 1 FUEL FILT
ENG 2 FUEL FILT
ENG 3 FUEL FILT
ENG 4 FUEL FILT
If more than one of these impending fuel filter bypass messages
is displayed, airplane fuel system contamination may be present,
which can result in erratic engine operation and engine flameout.
If other status level messages are displayed, the flight crew
may deal with them in accordance with the appropriate operator
procedure.''
(b) For all Model 757 series airplanes, and Model 767 series
airplanes powered by General Electric CF6-80A and CF6-80C2 engines,
Pratt & Whitney PW 4000 engines, and Rolls-Royce RB211-524 engines:
Within 60 days after the effective date of this AD, revise the
Limitations Section of the FAA-approved Airplane Flight Manual (AFM)
to include the following statement. This may be accomplished by
inserting a copy of this AD in the AFM.
``Respond to the EICAS STATUS CUE by checking for the following
status level messages(s):
--R ENG FUEL FILT --
L ENG FUEL FILT
If more than one of these impending fuel filter bypass messages
is displayed, airplane fuel system contamination may be present,
which can result in erratic engine operation and engine flameout.
If other status level messages are displayed, the flight crew
may deal with them in accordance with the appropriate operator
procedure.'' -
(c) For Model 767 series airplanes powered by Pratt & Whitney
JT9D engines: Within 60 days after the effective date of this AD,
revise the Limitations Section of the FAA-approved Airplane Flight
Manual (AFM) to include the following statement. This may be
accomplished by inserting a copy of this AD in the AFM.
``If both of the following EICAS advisory level messages for
impending fuel filter bypass are displayed, and engine fuel icing is
not suspected (based on the fuel temperature being too high or
because engine fuel heat has been selected ``on''), airplane fuel
system contamination may be present, which can result in erratic
engine operation and engine flameout:
--R ENG FUEL FILT --
L ENG FUEL FILT''
-(d) For all Model 747-400 series airplanes; all Model 757
series airplanes; and Model 767 series airplanes powered by General
Electric CF6-80A and CF6-80C2 engines, Pratt & Whitney PW 4000
engines, and Rolls-Royce RB211-524 engines: Accomplish the
requirements of paragraph (d)(1) and (d)(2) of this AD: -
(1) Within 4 years after the effective date of this AD, install
an upgraded engine indication and crew alerting system (EICAS)
computer that will provide ``advisory'' level messages to the flight
crew to indicate an impending engine fuel filter bypass condition
for each engine. The installation shall be accomplished in
accordance with a method approved by the Manager, Seattle Aircraft
Certification Office (ACO), FAA, Transport Airplane Directorate. -
(2) Concurrent with the installation required by paragraph
(d)(1) of this AD, remove the AFM revisions required by paragraphs
(a) and (b) of this AD, and revise the Limitations Section of the
AFM to advise the flight crew that impending engine fuel filter
bypass advisory level messages for multiple engines may indicate
contamination of the airplane fuel system, which can result in
erratic engine operation and engine flameout. The revision to the
Limitations Section must be approved by the Manager, Seattle ACO,
FAA, Transport Airplane Directorate. -
(e) An alternative method of compliance or adjustment of the
compliance time that provides an acceptable level of safety may be
used if approved by the Manager, Seattle ACO, FAA, Transport
Airplane Directorate. Operators shall submit their requests through
an appropriate FAA Principal Operations Inspector, who may add
comments and then send it to the Manager, Seattle ACO.
-Note 2: Information concerning the existence of approved
alternative methods of compliance with this AD, if any, may be
obtained from the Seattle ACO.
(f) Special flight permits may be issued in accordance with
sections 21.197 and 21.199 of the Federal Aviation Regulations (14
CFR 21.197 and 21.199) to operate the airplane to a location where
the requirements of this AD can be accomplished. -
(g) This amendment becomes effective on May 3, 1996.
Issued in Renton, Washington, on March 27, 1996.
Darrell M. Pederson,
Acting Manager, Transport Airplane Directorate, Aircraft Certification
Service.
[FR Doc. 96-7959 Filed 4-2-96; 8:45 am]
BILLING CODE 4910-13-P
Complete official Federal Register PDF
FR Doc. 96-7917 Approval and Promulgation of Implementation Plans Tennessee: Revisions to Chattanooga/Hamilton County Regulations for Definitions and Ambient Air Standards for Particulate Matter
[Federal Register Volume 61, Number 65 (Wednesday, April 3, 1996)]
[Rules and Regulations]
[Pages 14634-14637]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-7917]
=======================================================================
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[TN-111-1-7094a; FRL-5442-7]
Approval and Promulgation of Implementation Plans Tennessee:
Revisions to Chattanooga/Hamilton County Regulations for Definitions
and Ambient Air Standards for Particulate Matter
AGENCY: Environmental Protection Agency (EPA).
ACTION: Direct final rule.
-----------------------------------------------------------------------
SUMMARY: EPA is approving revisions to the Chattanooga/Hamilton County
portion of the Tennessee State Implementation Plan (SIP) submitted by
the State of Tennessee through the Tennessee Department of Environment
and Conservation on May 18, 1993. This submittal included revisions to
the current regulations concerning definitions and ambient air quality
standards for Chattanooga/Hamilton County. EPA finds that the
regulations provide for consistency with the Clean Air Act as amended
in 1990 (CAA) and corresponding Federal regulations.
DATES: This final rule is effective June 3, 1996 unless adverse or
critical comments are received by May 3, 1996. If the effective date is
delayed, timely notice will be published in the Federal Register.
ADDRESSES: Written comments should be addressed to: Ms. Karen Borel, at
the Regional Office Address listed below.
Copies of the material submitted by the State of Tennessee may be
examined during normal business hours at the following locations:
Air and Radiation Docket and Information Center (Air Docket 6102), U.S.
Environmental Protection Agency, 401 M Street, SW, Washington, DC
20460.
Environmental Protection Agency, Region 4 Air Programs Branch, 345
Courtland Street, NE., Atlanta, Georgia 30365.
Tennessee Division of Air Pollution Control, 9th Floor L&C Annex, 401
Church Street, Nashville, Tennessee 37243-1531.
Chattanooga-Hamilton County Air Pollution Control Bureau, 3511
Rossville Boulevard, Chattanooga, Tennessee 37407.
FOR FURTHER INFORMATION CONTACT: Interested persons wanting to examine
documents relative to this action should make an appointment with the
Region 4 Air Programs Branch at least 24 hours before the visiting day.
To schedule the appointment or to request additional information,
contact Karen C. Borel, Regulatory Planning and Development Section,
Air Programs Branch, Air, Pesticides & Toxics Management Division,
Region 4 EPA, 345 Courtland Street, NE, Atlanta, Georgia 30365. The
telephone number is 404/347-3555 extension 4197. Reference file TN111-
01-7094.
SUPPLEMENTARY INFORMATION: On May 18, 1993, the State of Tennessee
submitted a formal revision to the Chattanooga/Hamilton County portion
of its SIP incorporating changes to the ambient air quality standards
for particulate matter and definitions. They also submitted changes to
their asbestos emission standard, their hazardous air pollutants (HAP)
standard and their new source performance standards (NSPS). In a letter
from Mr. Doug Neeley, Chief of the Air Programs Branch in EPA Region 4,
to Mr. John Walton, Director of the Division of Air Pollution Control
of the Tennessee Department of Environment and Conservation, dated June
15, 1995, EPA requested that the NSPS, HAP, and asbestos related
revisions be withdrawn by the State. This withdrawal was requested
because the Federally enforceable National Emission Standards for
Hazardous Air Pollutants (NESHAP) are contained in 40 CFR Parts 61 and
63, and the Federally enforceable NSPS are contained in 40 CFR Part 60;
therefore, these are not required to be approved in the SIP. On October
3, 1995, the State of Tennessee officially withdrew their request to
amend the NSPS Rule 15, the Emissions Standards for Hazardous Air
[[Page 14635]]
Contaminants Rule 16, and the Emission Standard for Asbestos Rule 17.
Furthermore, the EPA is taking no action on the proposed revisions to
Section 4-8 which address the asbestos related requirements for
building demolition and renovation, in accordance with the requirements
of Rule 17.
EPA is approving the following revisions. These revisions and
additions are summarized in the following paragraphs. All codification
references are to the City of Chattanooga's Code.
1. Section 4-2, Definitions
The following definitions have been revised.
A. Best Available Control Technology (BACT)--The revised definition
specifies that BACT is applicable to emissions from any proposed major
stationary source or major modification. This revised definition also
allows a source to demonstrate that technological or economic
limitations of the particular emissions unit would make the imposition
of an emissions limitation infeasible; the source is allowed to propose
an alternate method to satisfy the requirement for the application of
BACT. Any proposed alternate method (design, equipment work practice,
operations standard or combination thereof) should set forth the
emissions reduction achievable by its implementation, and must be
approved by the Director.
B. Volatile organic compound (VOC)--The definition for VOC has been
revised in accordance with the definition in 40 CFR Part 52.100. The
definition of a VOC as a compound of carbon with a vapor pressure
greater than 0.1 millimeters of mercury at standard conditions has been
replaced with the definition in 40 CFR Part 52.100(s).
2. Section 4-2, Definitions
The following definitions have been added.
A. Owner or operator of a demolition or renovation activity--this
means any person who owns, leases, operates, controls, or supervises
the facility being demolished or renovated or any person who owns,
leases operates, controls or supervises the demolition or renovation,
or both.
B. Primary Air Quality Standards: Primary ambient air quality
standards define levels of air quality believed adequate, with an
appropriate margin of safety, to protect public health.
C. Secondary Air Quality Standards: Secondary ambient air quality
standards define levels of air quality believed adequate with an
appropriate margin of safety, to protect the public welfare from any
known anticipated adverse effects of the pollutant.
3. Section 4-41, Rule 21
In this rule, Chattanooga is adopting the Tennessee Air Pollution
Control Regulations, Chapter 1200-3-3-.03. This consists of two tables.
Table I contains the standards for Total Suspended Particulates (TSP),
PM10, Sulfur Dioxide, Carbon Monoxide, Ozone, Nitrogen Dioxide,
and Lead. Table II is Tennessee's standards for gaseous fluorides
(expressed as HF). These standards are part of the Tennessee Federally
approved SIP and are acceptable for adoption into the Chattanooga/
Hamilton County portion of the SIP.
4. Section 4-41, Rule 25.2(33)
The definition for VOC has been revised to bring it into accordance
with the definition of VOC in 40 CFR Part 52.100. The previous
definition is deleted and replaced with the definition in 40 CFR Part
52.100(s).
Final Action
EPA is approving the aforementioned revisions contained in the
State's May 18, 1993, submittal. EPA is also approving these same
revisions in the Hamilton County Code and the city/town codes of the
remaining municipalities in Hamilton County (Soddy-Daisy, Ridgeside,
Signal Mountain, Walden, Lookout Mountain, East Ridge, Red Bank,
Collegedale, and Lakesite). However, EPA has not reviewed the substance
of the regulations for Hamilton County or the other nine
municipalities. These rules were submitted as being essentially the
same as the City of Chattanooga's regulations. The EPA's approval of
these additional ordinances for the County and the remaining nine
municipalities does not imply any position with respect to the
approvability of the substantive rules. To the extent EPA has issued
any SIP calls to the State with respect to the adequacy of any of the
rules subject to this submittal, EPA will continue to require the State
to correct any such rule deficiencies despite EPA's approval.
The EPA is publishing this action without prior proposal because
the Agency views this as a noncontroversial amendment and anticipates
no adverse comments. However, in a separate document in this Federal
Register publication, the EPA is proposing to approve the SIP revision
should adverse or critical comments be filed. This action will be
effective June 3, 1996 unless adverse or critical comments are
received.
If the EPA receives such comments, this action will be withdrawn
before the effective date by publishing a subsequent document that will
withdraw the final action. All public comments received will then be
addressed in a subsequent final rule based on the separate proposed
rule. The EPA will not institute a second comment period on this
action. Any parties interested in commenting on this action should do
so at this time. If no such comments are received, the public is
advised that this action will be effective June 3, 1996.
Under section 307(b)(1) of the Act, 42 U.S.C. 7607 (b)(1),
petitions for judicial review of this action must be filed in the
United States Court of Appeals for the appropriate circuit by June 3,
1996. Filing a petition for reconsideration by the Administrator of
this final rule does not affect the finality of this rule for purposes
of judicial review nor does it extend the time within which a petition
for judicial review may be filed, and shall not postpone the
effectiveness of such rule or action. This action may not be challenged
later in proceedings to enforce its requirements. (See section
307(b)(2) of the Act, 42 U.S.C. 7607 (b)(2).)
This action has been classified as a Table 3 action for signature
by the Regional Administrator under the procedures published in the
Federal Register on January 19, 1989 (54 FR 2214-2225), as revised by a
July 10, 1995, memorandum from Mary Nichols, Assistant Administrator
for Air and Radiation. The Office of Management and Budget (OMB) has
exempted this regulatory action from E.O. 12866 review.
Nothing in this action shall be construed as permitting or allowing
or establishing a precedent for any future request for a revision to
any state implementation plan. Each request for revision to the state
implementation plan shall be considered separately in light of specific
technical, economic, and environmental factors and in relation to
relevant statutory and regulatory requirements.
Under the Regulatory Flexibility Act, 5 U.S.C. 600 et seq., EPA
must prepare a regulatory flexibility analysis assessing the impact of
any proposed or final rule on small entities. 5 U.S.C. 603 and 604.
Alternatively, EPA may certify that the rule will not have a
significant impact on a substantial number of small entities. Small
entities include small businesses, small not-for-profit enterprises,
and government entities
[[Page 14636]]
with jurisdiction over populations of less than 50,000.
SIP approvals under section 110 and subchapter I, part D of the CAA
do not create any new requirements, but simply approve requirements
that the State is already imposing. Therefore, because the Federal SIP
approval does not impose any new requirements, I certify that it does
not have a significant impact on any small entities affected. Moreover,
due to the nature of the Federal-state relationship under the CAA,
preparation of a regulatory flexibility analysis would constitute
Federal inquiry into the economic reasonableness of state action. The
CAA forbids EPA to base its actions concerning SIPs on such grounds.
Union Electric Co. v. U.S. E.P.A., 427 U.S. 246, 256-66 (S.Ct. 1976);
42 U.S.C. section 7410(a)(2) and 7410(k)(3).
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 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. To the extent that the rules being approved by this action will
impose no new requirements; such sources are already subject to these
regulations under State law. Accordingly, 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.
List of Subjects in 40 CFR Part 52
Environmental Protection, Air pollution control, Incorporation by
reference, Nitrogen dioxide, Ozone, Particulate matter, Reporting and
recordkeeping requirements.
Dated: February 15, 1996.
Phyllis P. Harris,
Acting Regional Administrator.
Part 52 of chapter I, title 40, Code of Federal Regulations, is
amended as follows:
PART 52--[AMENDED]
1. The authority citation for part 52 continues to read as follows:
Authority: 42.U.S.C. 7401-7671q.
Subpart RR--Tennessee
2. Section 52.2220, is amended by adding paragraph (c)(136) to read
as follows:
Sec. 52.2220 Identification of plan.
* * * * *
(c) * * *
(136) Revisions to the Chattanooga/Hamilton County Air Pollution
Control Regulations submitted by the Tennessee Department of
Environment and Conservation on May 18, 1993.
(i) Incorporation by reference.
(A) The Chattanooga City Code, Part II, Chapter 4, is revised as
shown in the following paragraphs. These revisions were adopted on
March 9, 1993.
(1) Section 4-2: the definitions for Best available control
technology (BACT); Owner or operator of a demolition or renovation
activity; Primary Air Quality Standards; and Secondary Air Quality
Standards.
(2) Section 4-41: Rule 21, ``Ambient Air Quality Standards.''
(3) Section 4-41: Rule 25.2, subparagraph 33.
(B) The Hamilton County Air Pollution Control Regulation is revised
as shown in the following paragraphs. These revisions were adopted on
April 7, 1993.
(1) Section 16: the following definitions are added: Primary Air
Quality Standards; Secondary Air Quality Standards; Owner or operator
of a demolition or renovation activity; and Best available control
technology (BACT).
(2) Section 9: Rule 25.2, subparagraph 33.
(3) Section 9: Rule 21, ``Ambient Air Quality Standards.''
(4) Section 25, ``Regulations cumulative.''
(C) The Soddy-Daisy Municipal Code, Title 8, Health and Sanitation,
Chapter 1, Air Pollution Control, is revised as shown in the following
paragraphs. These revisions were adopted on March 18, 1993.
(1) Section 8-102: the following definitions are added: Primary Air
Quality Standards; Secondary Air Quality Standards; Owner or operator
of a demolition or renovation activity; and Best available control
technology (BACT).
(2) Section 8-141: Rule 25.2, subparagraph 21.
(3) Section 8-141: Rule 21, ``Ambient Air Quality Standards.''
(D) The Ridgeside Air Pollution Control Ordinance is revised as
shown in the following paragraphs. These revisions were adopted on
April 20, 1993.
(1) Section 2: the following definitions are added: Primary Air
Quality Standards; Secondary Air Quality Standards; Owner or operator
of a demolition or renovation activity; and Best available control
technology (BACT).
(2) Section 41: Rule 25.2, subparagraph 21.
(3) Section 41: Rule 21, ``Ambient Air Quality Standards.''
(E) The Signal Mountain Air Pollution Control Ordinance is revised
as shown in the following paragraphs. These revisions were adopted on
March 8, 1993.
(1) Section 2: the following definitions are added: Primary Air
Quality Standards; Secondary Air Quality Standards; Owner or operator
of a demolition or renovation activity; and Best available control
technology (BACT).
(2) Section 41: Rule 25.2, subparagraph 21.
(3) Section 41: Rule 21, ``Ambient Air Quality Standards.''
(F) The Walden Air Pollution Control Ordinance is revised as shown
in the following paragraphs. These revisions were adopted on adopted
March 9, 1993.
(1) Section 2: the following definitions are added: Primary Air
Quality Standards; Secondary Air Quality Standards; Owner or operator
of a demolition or renovation activity; and Best available control
technology (BACT).
(2) Section 41: Rule 25.2, subparagraph 33.
(3) Section 41: Rule 21, ``Ambient Air Quality Standards.''
(G) The Lookout Mountain Air Pollution Control Ordinance is revised
as shown in the following paragraphs. These revisions were adopted
March 9, 1993.
(1) Section 2: the following definitions are added: Primary Air
Quality Standards; Secondary Air Quality Standards; Owner or operator
of a demolition or renovation activity; and Best available control
technology (BACT).
(2) Section 41: Rule 25.2, subparagraph 21.
(3) Section 41: Rule 21, ``Ambient Air Quality Standards.''
[[Page 14637]]
(H) The Red Bank Municipal Code, Chapter 3, Title 8, is revised as
shown in the following paragraphs. These revisions were adopted March
16, 1993.
(1) Section 8-302: the following definitions are added: Primary Air
Quality Standards; Secondary Air Quality Standards; Owner or operator
of a demolition or renovation activity; and Best available control
technology (BACT).
(2) Section 8-341: Rule 25.2, subparagraph 21.
(3) Section 8-341: Rule 21, ``Ambient Air Quality Standards.''
(I) The Collegedale Municipal Code, Title 8, Health and Sanitation,
Chapter 5, Air Pollution Control, is revised as shown in the following
paragraphs. These revisions were adopted April 12, 1993.
(1) Section 8-502: the following definitions are added: Primary Air
Quality Standards; Secondary Air Quality Standards; Owner or operator
of a demolition or renovation activity; and Best available control
technology (BACT).
(2) Section 8-541: Rule 25.2, subparagraph 33.
(3) Section 8-541: Rule 21, ``Ambient Air Quality Standards.''
(J) The Lakesite Municipal Code, Title 4, Building, Utility,
Housing and Air Pollution Control Codes, Chapter 6, Air Pollution
Control Ordinance is revised as shown in the following paragraphs.
These revisions were adopted March 30, 1993.
(1) Section 2: the following definitions are added: Primary Air
Quality Standards; Secondary Air Quality Standards; Owner or operator
of a demolition or renovation activity; and Best available control
technology (BACT).
(2) Section 41: Rule 25.2, subparagraph 21.
(3) Section 41: Rule 21, ``Ambient Air Quality Standards.''
(K) The East Ridge City Code, Title 8, Health and Sanitation,
Chapter 7, Air Pollution Control is revised as shown in the following
paragraphs. These revisions were adopted March 11, 1993.
(1) Section 8-702: the following definitions are added: Primary Air
Quality Standards; Secondary Air Quality Standards; Owner or operator
of a demolition or renovation activity; and Best available control
technology (BACT).
(2) Section 8-741: Rule 25.2, subparagraph 21.
(3) Section 8-741: Rule 21, ``Ambient Air Quality Standards.''
(ii) Other material. None.
[FR Doc. 96-7917 Filed 4-2-96; 8:45 am]
BILLING CODE 6560-50-P
Complete official Federal Register PDF
FR Doc. 96-7888 Financial Aid Program Procedures; Removal of Conditional Fisheries Regulations
[Federal Register Volume 61, Number 65 (Wednesday, April 3, 1996)]
[Rules and Regulations]
[Pages 14682-14683]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-7888]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 251
[Docket No. 960301056-6056-01; I.D. 021596D]
RIN 0648-AI76
Financial Aid Program Procedures; Removal of Conditional
Fisheries Regulations
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: NMFS abolishes the Financial Aid Program Procedures
regulations in accordance with the President's Regulatory Reform
Initiative, which directs that unnecessary regulations be abolished.
EFFECTIVE DATE: April 3, 1996.
ADDRESSES: Michael L. Grable, Chief, Financial Services Division,
National Marine Fisheries Service, 1315 East-West Highway, Silver
Spring, MD 20910.
FOR FURTHER INFORMATION CONTACT: Charles L. Cooper, Program Leader,
301-713-2396.
SUPPLEMENTARY INFORMATION: In 1973, NMFS established the regulations
contained in 50 CFR part 251 to provide a central statement of NMFS
policy related to restricting the use of financial assistance programs
in certain fisheries in which the use of these programs has been
determined to be inconsistent with the wise use of the fishery
resources involved. These fisheries are designated as ``Conditional
Fisheries.'' The programs involved are the Fisheries Capital
Construction Fund Program (46 U.S.C. 1177) and the Fisheries Obligation
Guarantee Program (46 U.S.C. 1271-1279).
In March 1995, President Clinton issued a directive to Federal
agencies regarding their responsibilities under his Regulatory Reform
Initiative. This initiative is part of the National Performance Review
and calls for immediate, comprehensive regulatory reform. The President
directed all agencies to undertake an exhaustive review of all their
regulations with an emphasis on eliminating or modifying those that are
obsolete or otherwise in need of reform. NMFS has determined that the
regulations pertaining to Conditional Fisheries are unnecessary and
should be abolished, because NMFS has long-standing practices governing
the use of the Fisheries Obligation Guarantee Fund Program and the
Fisheries Capital Construction Fund Program that contain adequate
safeguards against using these programs in ways that would be
inconsistent with the wise use of fisheries resources. To ensure that
the Fisheries Capital Construction Fund Program will not be used in
ways that would be inconsistent with the wise use of fishery resources,
those fisheries which had been designated as ``Conditional Fisheries''
shall continue to be ``closed fisheries'' pursuant to the Interim
Capital Construction Fund agreements. The fisheries involved are the
fishery for yellowfin tuna in the area regulated by the Inter-American
Tropical Tuna Commission, the fishery for American lobster in the Gulf
of Maine, the fishery for salmon in Washington, Oregon, and California,
the fishery for king crab in
[[Page 14683]]
Alaska, the fishery for surf clams, and the fishery for Atlantic
Groundfish.
Classification
Because this rule eliminates an unnecessary regulation, no useful
purpose would be served by providing prior notice and opportunity for
comment on this rule. Accordingly, under 5 U.S.C. 553(b)(B), the
Assistant Administrator for Fisheries, NOAA, for good cause, finds that
it is unnecessary to provide such notice and opportunity for comment.
Also, because this rule is only administrative in nature and is not a
``substantive rule'' under 5 U.S.C. 533(d), it will be immediately
effective upon publication.
This final rule has been determined to be not significant for the
purposes of E.O. 12866.
List of Subjects in 50 CFR Part 251
Administrative practice and procedure, Fisheries, Fishing vessels,
Loan programs-business.
Dated: March 27, 1996.
Charles Karnella,
Acting Program Management Officer, National Marine Fisheries Service.
For the reasons set out in the preamble, under the authority at 16
U.S.C. 742, 50 CFR part 251 is removed.
[FR Doc. 96-7888 Filed 4-2-96; 8:45 am]
BILLING CODE 3510-22-F
Complete official Federal Register PDF
FR Doc. 96-7787 Medicare Program; Payment for Federally Qualified Health Center Services
[Federal Register Volume 61, Number 65 (Wednesday, April 3, 1996)]
[Rules and Regulations]
[Pages 14639-14658]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-7787]
=======================================================================
-----------------------------------------------------------------------
[[Page 14640]]
DEPARTMENT OF HEALTH AND HUMAN SERVICES
Health Care Financing Administration
42 CFR Parts 405 and 491
[BPD-728-F]
RIN 0938-AF14
Medicare Program; Payment for Federally Qualified Health Center
Services
AGENCY: Health Care Financing Administration (HCFA), HHS.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: These regulations establish, as a Medicare benefit, outpatient
services furnished by a Federally Qualified Health Center (FQHC) and
establish requirements for coverage and payment of FQHC services. An
FQHC is one of the following: An entity that is receiving a grant under
section 329, 330, or 340 of the Public Health Service (PHS) Act; a non-
grant receiving entity that is determined by the Secretary to meet the
PHS Act requirements for receiving a grant; certain native American
health centers; and certain facilities that have previously been
identified as Federally funded health centers.
These regulations implement certain provisions of the Omnibus
Budget Reconciliation Act of 1990 and the Omnibus Budget Reconciliation
Act of 1993.
EFFECTIVE DATE: These regulations are effective on May 3, 1996.
FOR FURTHER INFORMATION CONTACT: Helen Klein, (410) 786-4641 (FQHC
coverage issues) Randy Ricktor, (410) 786-5650 (FQHC payment issues)
SUPPLEMENTARY INFORMATION:
I. Background
On June 12, 1992, we published in the Federal Register, at 57 FR
24961, a final rule with a comment period, which established a new
Medicare benefit, outpatient services furnished by FQHCs. This benefit
is authorized by section 4161(a) of the Omnibus Budget Reconciliation
Act of 1990 (OBRA '90), which amends section 1861(aa) of the Social
Security Act (the Act). The statutory provisions are effective on
October 1, 1991.
OBRA '90 defines an FQHC as an entity that is receiving a grant
under section 329, 330, or 340 of the PHS Act; is receiving funding
from such a grant under a contract with the recipient of such a grant
and meets the requirements to receive a grant under section 329, 330,
or 340 of the PHS Act; based on the recommendation of the Health
Resources and Services Administration (HRSA) within the Department of
Health and Human Services, is determined by the Secretary to meet the
requirements for receiving such a grant; or was treated by the
Secretary, for purposes of Medicare Part B, as a Federally funded
health center (FFHC) as of January 1, 1990.
Subsequent to the June 12, 1992 regulations, the Omnibus Budget
Reconciliation Act of 1993 (OBRA '93) further amended section 1861(aa)
of the Act relating to the definition of FQHCs. Section 13556 of OBRA
'93 expanded the definition of FQHCs to include outpatient programs
operated by tribes, tribal organizations under the Indian Self-
Determination Act, or by an urban Indian organization receiving funds
under Title V of the Indian Health Care Improvement Act. This provision
was effective as if it had been included in the OBRA '90 legislation.
Thus, such organizations may qualify for FQHC status, and under certain
circumstances, as early as October 1, 1991. We are implementing this
provision in a separate Federal Register rule.
The Act defines FQHC services as the same type of services provided
by rural health clinics (RHCs) under the Medicare program, plus
preventive primary health services.
II. Provisions of the Final Rule With Comment Period
The rule described in considerable detail the requirements an
entity must meet to qualify as an FQHC, what services the FQHC must
furnish, and the methodology we will use to determine how much we pay
an FQHC. We provided that an entity that meets the requirements must
enter into a signed agreement with us and must terminate any other
Medicare provider agreement.
Under provisions of our final rule, services that are payable under
the Medicare program when furnished by an FQHC are the same outpatient
services that are currently covered as RHC services, plus preventive
services. FQHC services do not include services furnished to hospital
patients. RHC services include services furnished by physicians,
physician assistants, nurse practitioners, nurse-midwives, qualified
clinical psychologists, clinical social workers, and services and
supplies furnished incident to professional services of these
practitioners. In certain home health agency shortage areas, RHC
services may also include visiting nurses' services.
Preventive services include medical social services, nutritional
assessment and referral, preventive health education, children's eye
and ear examinations, prenatal and post-partum care, well child care,
including periodic screening, immunizations, voluntary family planning
services, and services outlined in the recommendations of the U.S.
Preventive Services Task Force for patients age 65 and older.
Preventive services do not include eyeglasses, hearing aids, group or
mass information programs or health education classes, or preventive
dental services. Preventive services covered under special provisions
of Medicare, such as screening mammography, may be provided by an FQHC
only if the center meets the special provisions that govern those
benefits.
Our regulations state that qualified clinical psychologists and
clinical social workers who furnish FQHC services must be legally
authorized to perform those services under State law. We clarified that
nurse-midwives, clinical social workers, and clinical psychologists are
employees of the FQHC.
Payment provisions for FQHCs parallel the provisions for payment of
RHCs. We pay freestanding FQHCs on an all-inclusive rate basis, subject
to a test of reasonableness. We apply payment limits to the all-
inclusive rate per visit. We pay provider-based FQHCs in accordance
with 42 CFR parts 405 and 413 of the Medicare regulations. For
additional description, see the June 12, 1992 final rule (57 FR 24961).
Issues regarding the interaction between managed care and Medicare
entities, such as FQHCs, are under consideration by us, and therefore,
not addressed in this final rule.
III. Analysis of and Responses to Public Comments
In response to the publication of the final rule with a comment
period in the Federal Register on June 12, 1992, we received 48 public
comments. The comments were submitted by a wide variety of health care
centers, consultants and local and national organizations. We reviewed
all the comments, and the comments and our responses are in the order
that the issues appeared in the June 12, 1992 rule.
Qualification Requirements
Comment: A few commenters objected to application of the conditions
for coverage requirements in 42 CFR part 491 to FQHCs and believed it
is without legal basis. They noted that the language in the Medicaid
law is nearly identical, and Medicaid does not place health and safety
requirements on FQHCs. The commenters argued that by virtue of
receiving grants under the PHS Act, these centers already must meet
[[Page 14641]]
stringent standards established by HRSA and further standards are
unnecessary.
Response: When the Congress created the FQHC benefit, it envisioned
that FQHC services would be provided under the same conditions as RHCs
services are furnished. Thus, FQHC services are defined in section
1861(aa)(3)(A) of the Act as ``services of the type described in
subparagraphs (A) through (C) of paragraph 1 of section 1861(aa).'' As
a result, the services of FQHCs are to be identical to those of RHCs.
Similarly, section 1861(aa)(3)(B) of the Act provides that ``any
reference to a rural health clinic or a physician described in
paragraph (2)(B) is deemed a reference to a Federally qualified health
center, respectively.'' This means that physician-directed FQHCs are to
be treated identically to their RHC counterparts. Finally, section
1861(aa)(5) of the Act provides the same definitions of physician
assistants, nurse practitioners and clinical nurse specialists for RHCs
and FQHCs.
These provisions of the Act indicate that the Congress built upon
the statutory and regulatory provisions for coverage and payment of
RHCs and intended that we use those provisions as a model for the FQHC
program. Therefore, we believe that the Congress expected us to apply
the same rules to FQHCs that we apply to RHC services and to
professionals providing RHC services.
Based on the above, we believe there is a rationale for applying
all or part of the RHC requirements to the services furnished in FQHCs.
While HRSA may monitor the health and safety standards for a subset of
FQHCs that are grantees, for some FQHCs (in other words, ``look-
alikes,'' which are entities that are not receiving grants under the
PHS Act but meet grant requirements, and some former FFHCs), there is
no other alternative for monitoring the quality of the service
furnished. Without our oversight, there would be no assurance that
facilities furnish safe services.
In addition, the Congress has given us the responsibility to
establish standards to ensure the health and safety of beneficiaries in
all other statutorily-created types of facilities, and it would be
extraordinary to interpret the law as preventing application of such
standards in regard to FQHCs. There is nothing in the law that would
support the view that the Congress intended for us to be without the
power to assure the safety and efficacy of FQHC services.
We believe the health and safety requirements we established are
minimal and are not a burden on the vast majority of centers that want
to provide high quality care. In fact, we informally surveyed RHCs and
FQHCs regarding the difficulties involved in participating in the
Medicare program, and no one noted concerns with the health and safety
requirements we extended to FQHCs. Likewise, no commenters on this
document raised concerns with any particular requirement. However,
should further correspondence indicate documented difficulties with a
specific condition, we will be open to considering refinement, as
appropriate.
Finally, we note that we are implementing the requirements in a
fashion that is as administratively simple as possible. That is, we are
not surveying potential FQHCs prior to participation or on a routine
basis. Rather, centers merely attest to meeting the requirements. The
standards thus establish a set of expectations for FQHCs to monitor
themselves and provide an enforcement mechanism for those very few
centers that do not take adequate health and safety precautions. In the
absence of such health and safety standards, we would have no means to
protect beneficiaries from potentially serious health and safety
threats that have materialized with other types of providers and
suppliers over time. Given the statutory provision referencing RHC
procedures, we are confident that the Congress intended that we place
health and safety requirements on FQHCs.
We concede that Medicaid currently has no regulations for FQHCs, so
it is premature to argue that the Medicaid program does not have health
and safety requirements for FQHCs. However, the Medicaid program does
require provider agreements between the State agency and an FQHC before
the Medicaid program pays the FQHC.
Although the Medicare and Medicaid FQHC legislation is similar in
language, the two programs are separate and autonomous. The Medicaid
program is a Federal and State partnership and allows more flexibility
in determining FQHC approval. Since Medicaid regulations have not yet
been issued, we are not in a position to discuss any additional
requirements that may be added.
Comment: Several commenters noted that the statutory provisions for
FQHC eligibility refer to FQHCs using the term ``entity.'' The
regulations require that each site be approved, which the commenters
believed exceeds our statutory authority. If site-specific approval is
maintained, the commenters suggested that we clarify that an entity may
submit combined cost reports and use a combined payment rate for all
sites within that entity.
Response: While we independently approve each site for Medicare
participation and assign it a unique provider number, each site of a
potential FQHC need not independently meet the PHS Act grant
requirements. The fact that a site is within the scope of a grant or
approved look-alike application is sufficient. However, each site must
independently attest to meeting the conditions in part 491 subpart A.
We believe the site specific requirement also has advantages for
Medicare beneficiaries and FQHCs and is supported by law. Section
1861(aa)(2)(K) of the Act gives us the authority to establish standards
to ensure the health and safety of beneficiaries receiving services at
RHCs, and consequently, we believe, at FQHCs. We believe that
establishing specific requirements for individual site approval allows
us to fulfill this role. If facilities are not independently approved,
it is difficult to determine if each site is adequately meeting the
required health and safety standards.
There are advantages to the FQHC in this policy. The site-specific
approval requirement allows each site in the entity to continue to
operate despite individual problems that may arise in other sites under
the same corporate entity. Corporate entities are typically large
private or public organizations which have, as their organizational
components, facilities that must independently meet the conditions
established in 42 CFR part 491, subpart A. By requiring individual site
approval, all of the sites of an entity are not jeopardized if one site
does not meet health and safety requirements. If we were to use entity-
based approval, as suggested by the commenter, we would not allow an
individual site that continues to meet all of the conditions to provide
FQHC services if another site in that parent entity did not meet the
Medicare safety standards. In addition, requiring site-specific
approval enables us to provide enhanced service to our beneficiaries.
Specifically, we are able to respond to beneficiary requests for the
names and addresses of approved facilities that are providing Medicare
FQHC services.
Although each site within a corporate entity is independently
approved and given a unique Medicare provider number, entities have the
option to file a single consolidated cost report for the entire entity
or individual cost reports for each site within the entity. We provided
instructions in the intermediary and RHC/FQHC manuals
[[Page 14642]]
that address payment for FQHC network entities.
Finally, we do not believe that the law intended that every site
operated by an entity be entitled to FQHC status, especially if the
sites are not within the scope of the PHS Act grant, without
independently qualifying as ``look-alikes.'' Only by using site-
specific approval can we carry out the statutory intent of providing
FQHC status to a site that meets the conditions of the law, while
excluding a site that is part of an entity, but falls outside the scope
of a PHS Act grant or does not otherwise meet the FQHC eligibility
criteria.
Comment: One commenter requested clarification of our position
regarding provider-based FQHCs, which are not receiving grants under
the PHS Act, but meet grant requirements as ``look-alikes.'' The
commenter noted that the definition of a provider-based FQHC as an
integral and subordinate part of a provider and HRSA governance
requirements have prompted some centers to establish independent
governance and yet remain located at or near hospital grounds. The
commenter requested assurance that such co-location would not result in
provider-based designation.
Response: Section 405.2462 defines a provider-based FQHC as a
clinic or center that is an integral and subordinate part of a
hospital, skilled nursing facility, or home health agency participating
in Medicare (that is, a provider of services). The clinic or center is
operated with other departments of the provider under common licensure,
governance, and professional supervision. These stipulations must be
met for us to consider an FQHC as provider-based. Simply being located
in or near a hospital does not qualify an entity as a provider-based
facility. The converse is also true. An entity may be provider-based
despite the fact that it is located outside of the provider. A center
with independent governance cannot be considered a provider-based FQHC.
The basis for HRSA governance requirement is to ensure that the
services that are provided are responsive to the community. Therefore,
HRSA requires that a center approved under sections 329 and 330 of the
PHS Act have a governing board, the majority of which are users of the
facility.
Comment: One commenter urged that we review the definition and
scope of authority of community governing boards in FQHCs. The
commenter noted that the requirement for community governing boards
excludes from the FQHC benefit clinic facilities that are owned by
academic health science centers.
Response: The definition and scope of authority of community
governing boards are found in sections 329(f)(3)(G) and 330(e)(3)(G) of
the PHS Act. The sections specify that the center has established a
governing board which (1) is composed of individuals, a majority of
whom are being served by the center and who, as a group, represent the
individuals being served by the center, and (2) selects the services to
be provided by the center, schedules the hours during which such
services will be provided, approves the center's annual budget,
approves the selection of a director for the center, and, except in the
case of a public center, establishes general policies for the center.
The purpose of an FQHC is to provide community-based, family-
oriented primary care. The statutory governance requirement ensures
that the services that are provided are responsive to the health needs
and concerns of the community. An academic health science center can
qualify as an FQHC if its board meets the requirements of sections 329,
330 or 340 of the PHS Act and the provisions of this regulation.
Comment: One commenter noted that Sec. 491.5 requires that a center
be located in a rural or urban area that is designated as a shortage
area. The commenter requested that shortage area be clearly defined in
the regulations. Several commenters noted that the PHS law does not
require the FQHC to be located in a medically underserved area, but
merely to document that it serves a medically underserved population.
Response: Section 491.2 defines a shortage area as a geographic
area designated by the Department as having either a shortage of
personal health services (under section 1302 of the PHS Act) or a
shortage of primary medical care manpower (under section 332 of that
Act). The designation of shortage areas is quite complex and is handled
by HRSA.
Section 491.5(d) specifies the criteria for designation of shortage
areas. Factors considered include the ratio of primary care physicians
practicing in the area to the resident population and the infant
mortality rate.
The commenter is correct in that HRSA does not require that the
FQHC be located in a shortage area. Rather HRSA requires that the FQHC
either be located in a medically underserved area (MUA) or serve a
medically underserved population (MUP).
According to 42 CFR 51c.102(e), an MUP is defined as the population
of an urban or rural area designated by the Secretary as an area with a
shortage of personal health services. This designation was developed
because there were populations that required medical care but were
located in areas that did not receive MUA designation. The Secretary
analyzes the demographics and medical manpower of the population to
determine whether or not the population should receive designation.
Therefore, an MUP can be located in an area that is not an MUA.
In response to the concern expressed by this commenter, we are
revising Sec. 491.5(a) to specify that an FQHC may be located in a
shortage area or may serve a medically underserved population. We are
also adding a new paragraph (e) that defines medically underserved
population in the same way as HRSA does, as indicated above.
Comment: Two commenters objected to application of the ``four walls
test'' in Sec. 491.5 to an FQHC. They believed that this provision
limits cost-based payment to only those services provided at the clinic
or center site. The commenters noted that it may be difficult to have
some specialists come to the center site to provide care and
recommended that all services furnished under arrangements with the
FQHC be payable on a cost basis.
Response: The ``four walls test'' requires that the objects,
equipment and supplies necessary for the provision of the services
furnished directly by the clinic or center be housed in a permanent
structure or mobile unit that has fixed, scheduled locations. The
requirement that the clinic or center be housed in a permanent
structure ensures that the equipment, records, supplies and whatever
else is necessary to provide the defined services are in one permanent
place.
The ``four walls test'' is not a requirement that limits cost-based
payment to only those services provided at the clinic or center, and it
does not restrict a physician from providing services off-site. A
physician, including any specialist under contract to the FQHC, can
have an agreement with the FQHC to provide FQHC services off-site.
For reasons discussed later in this preamble, we have reconsidered
our policy on contracting for professional staff members other than
physicians. FQHCs may provide services of physician assistants, nurse
practitioners and other professionals under contract. These
professionals may provide services in skilled nursing facilities or in
the homes of beneficiaries. However, an FQHC may not bill services
provided to hospital patients as FQHC services.
Comment: Several commenters noted that Sec. 491.8 requires that
nurse practitioners or physician assistants be
[[Page 14643]]
available to furnish patient care services at least 60 percent of the
time. However, the Omnibus Budget Reconciliation Act of 1989 (OBRA '89)
changed the requirement to 50 percent. They recommended that we revise
the regulation to state that such coverage is required 50 percent of
the time.
Response: We note that the referenced RHC requirements pertaining
to staffing mix percentages in Sec. 491.8 do not apply to FQHCs. When
the FQHC regulations were published on June 12, 1992, the existing RHC
regulations had not been updated to include changes from the Omnibus
Budget Reconciliation Act of 1987 (OBRA '87), OBRA '89 and OBRA '90. As
a result, the FQHC regulations were incorporated into the existing RHC
regulations, which still reflected earlier statutory thresholds for
such coverage. We are preparing to issue a proposed rule that
incorporates these changes and will update the RHC provisions in
Sec. 491.8 and solicit public comment. We are, however, authorized by
OBRA '90 to issue a final rule for FQHCs that includes only the OBRA
'90 amendments.
Comment: One commenter objected to the exclusion of psychologists
from the list of practitioners in Sec. 491.8(a)(6), which specifies
staff that must be available in order for the center to be open. The
commenter recommended that we revise the regulation to include
specialty providers in all areas of operation of the centers. Further,
the commenter was concerned that the language with regard to medical
direction in Sec. 491.8(b)(1)(i) could be interpreted to require that a
physician may supervise psychological services that are within the
scope of the psychologist to furnish without medical direction.
Response: As noted above, OBRA '90 authorizes us to implement the
FQHC regulations as a final rule. We do not have authority under that
law to modify the RHC provisions without publishing a notice and
soliciting public comment. When the FQHC regulations were published
June 12, 1992, the existing RHC regulations had not been updated to
include any changes in the law. As a result, the regulations concerning
the policy board and medical supervision did not contemplate
involvement of psychologists, as psychologists' services were not RHC
covered services at the time the regulations were promulgated.
Section 1861(ii) of the Act provides coverage for clinical
psychologist services that would otherwise be covered if furnished by a
physician or as incident to a physician's service. In addition, under
this statutory provision clinical psychologists can provide services as
authorized under State law without the supervision of a physician. We
are revising Sec. 491.8(b)(1) to clarify that clinical psychologists
can provide services, as permitted under State law, without the
supervision of a physician in FQHCs.
Comment: Two commenters objected to the requirement in
Sec. 491.9(b)(2) regarding the development of patient care policies.
This paragraph requires that the policy development committee of the
center include at least one member who is not on the center's staff.
They expressed concern that the use of non-staff personnel is an
unnecessary expense and is burdensome. They also believed the
requirement is unnecessary given the level of review already in place
by HRSA for its grantees.
Response: We believe that the provisions of Sec. 491.9(b)(2) are
necessary to ensure the health and safety of beneficiaries. Patient
care policies were developed to provide guidelines on how a facility
will care for its patients. In addition, the policies ensure that the
providers adhere to appropriate procedures and protocols. The
requirement for a non-staff representative to assist in developing
patient care policies is necessary to ensure that the services are
responsive to the needs of the community. The non-staff representative
does not have financial interests in the provider and, as such, will
likely be more objective and unbiased in favor of the provider in the
decision making process. This requirement is intended to ensure that
the concerns of the population served will be paramount and that the
provider will address the specific health needs of the community. Given
the HRSA governance requirement for a constituent majority board, we
believe this requirement will not be burdensome to most FQHCs.
Comment: One commenter objected to annual surveys of RHCs and FQHCs
as wasteful.
Response: We are not planning to conduct routine surveys of FQHCs,
and FQHCs will not be routinely required to submit documentation to
HCFA demonstrating compliance with program requirements. However, we
plan to survey an FQHC if we receive a complaint about a health and
safety issue at the FQHC. During the survey, the FQHC must provide
documentation of compliance with the requirements in part 491.
Comment: Two commenters noted that FQHC grantees are subject to
extensive review by the HRSA on an annual basis. They believed this
review is sufficient to meet any evaluation assurances that should be
necessary. Therefore, the requirement in Sec. 491.11 that a clinic or
center carry out or arrange for an annual evaluation of its total
program should not be applicable to FQHCs.
Response: An FQHC is expected to conduct annual evaluations in
accordance with Sec. 491.11, which specifies what the annual program
evaluation must include and what the evaluation must determine, but it
does not prescribe how the annual program evaluation must be conducted
or the kind of evaluation that must be conducted. The purpose of the
annual evaluation is to evaluate utilization of services, evaluate
compliance with established policies, and determine if changes are
needed. We would expect that every organization would conduct this
self-assessment at least annually regardless of Medicare requirements.
With regard to the concern that HRSA reviews are adequate and, in
support of elimination of this requirement for FQHCs, we note that not
all FQHCs are grantees under the PHS Act; thus, all FQHCs would not be
subject to the HRSA standards. In support of retaining the requirement,
we note that the standard should not be burdensome to the centers
because, to the extent that HRSA reviews cover the scope of the
requirement, additional evaluation and documentation will not be
necessary. Thus, should we survey an FQHC for compliance with part 491
conditions in response to a complaint, documentation submitted to HRSA
for HRSA program purposes would be acceptable as evidence of compliance
with 42 CFR 491.11 if the review included the items specified in the
requirement.
Comment: Another commenter was in favor of annual compliance
reporting and recommended that, to ease administrative burden, HCFA and
HRSA use a single form, and HCFA provide additional details specifying
when such reporting is to be completed and where it is to be forwarded.
Response: We are not requiring annual compliance reporting. FQHCs
must review themselves, and they must maintain documentation of their
review in the event that we choose to survey a center. We will evaluate
an FQHC only if we discover a problem or receive a complaint. In such
cases, the review would encompass only the matter addressed in the
Medicare regulations, but we would coordinate the review with HRSA to
avoid duplicative efforts. Section 491.11 requires that an FQHC perform
an annual self-evaluation of its program. We believe this is a
reasonable requirement so that an FQHC assesses utilization of
services, compliance with
[[Page 14644]]
established policies, and determines if changes are needed.
Comment: One commenter wanted to know when a listing of FQHCs would
be available.
Response: There is a list of FQHCs currently available from the
Health Standards and Quality Bureau, System Management Branch, 6325
Security Blvd., Baltimore, Maryland, 21207. The charge for the list is
$25.00. For more information, you may telephone Mike Moran at (410)
597-5851.
Content and Term of the Agreement
Comment: One commenter requested that we clarify the
recertification process for FQHCs.
Response: For Medicare purposes, there will be no routine
recertification of FQHCs. Once a facility is approved, it will remain a
Medicare-participating FQHC until termination of the agreement, as
provided in Sec. 405.2436. We plan to survey an FQHC if we receive a
complaint about a health and safety issue at an FQHC or if a health and
safety problem is identified in another way.
HRSA has an annual process to determine eligibility for FQHC
status. For grantees, this consists of an application process for
funding, and for look-alikes, this consists of an annual application
and review, either of which could result in HRSA recommending
decertification of the FQHC to HCFA.
Comment: Two commenters noted that the RHC law and regulations
provide that an RHC retains its status even if the area in which it is
located loses its rural shortage area designation. They requested
similar protection for FQHCs.
Response: Section 1861(aa)(2)(K) of the Act specifies that an RHC
may maintain its approval even if the area in which it is located loses
its rural shortage area designation. In accordance with the Act,
Sec. 491.5(b)(1) allows an RHC to retain its approval. The Act,
however, does not include a similar provision for an FQHC.
We note that the current language in the regulation does not
clearly state that the protection for area designation applies
exclusively to RHCs. Therefore, we are revising Sec. 491.5(b)(1) to
clarify this.
Comment: One commenter objected to the requirement that centers
must terminate other provider agreements prior to, or simultaneous
with, signing an FQHC participation agreement. The commenter believed
that there is no statutory support for this requirement, and this
requirement may adversely affect some centers. One example cited by the
commenter is that an RHC could be adversely affected if it gave up its
RHC status to become an FQHC and the area is redesignated from
medically underserved because the protection afforded an RHC is not
offered to an FQHC.
Response: We are revising Sec. 405.2430(a)(1)(iii) to clarify that
a freestanding FQHC must terminate other provider agreements for
entities that operate at the same time as the FQHC. The intent of this
provision is to prohibit an entity from using the same space, staff,
and resources simultaneously as two distinct provider types. We believe
this provision is necessary to ensure the health and safety of our
beneficiaries and to avoid program abuse.
We do not intend by this provision that an FQHC and another
provider/supplier type may not be commonly owned or housed in the same
building. Rather, the intent of the provision limiting freestanding
FQHCs to a single provider agreement is to prevent the entity from
using the same staff, space, and resources for two or more different
provider types at the same time.
We believe that this provision is necessary to ensure the health
and safety of our beneficiaries. That is, if an FQHC is using the same
space, staff and resources as two different providers at the same time,
there is no assurance that the staff will be devoting its efforts to
the FQHC operation and not the other provider type. Without these
assurances, it is possible that beneficiaries could come to the FQHC
expecting to receive adequate health care, only to learn that the other
provider type is using the FQHC's resources at that time.
In addition, we established a very simplified cost report mechanism
for FQHCs. This cost report does not permit the allocation of costs
among multiple provider types. If we were to allow the simultaneous use
of the same space, staff and resources as multiple providers, we would
need to develop a more sophisticated cost report. A more complicated
report could place an administrative burden on the centers, the vast
majority of which do not wish to engage in multiple provider
activities.
We note that the Medicare program does not generally allow the
concurrent use of a facility as multiple health care providers. For
example, the regulations require that ambulatory surgical centers be
used exclusively for providing surgery to patients who do not require
hospitalization. Furthermore, the skilled nursing facility regulations
require separate space, staff and resources (or distinct part) for its
non-certified portion. Thus, we believe there is ample precedent for
the requirement we are establishing.
Coinsurance
Comment: One commenter noted the distinction between the basis of
coinsurance (charges) and the basis of payment (all inclusive rate) and
asked for clarification.
Response: The commenter is correct. There is a difference between
the basis of coinsurance and the basis of payment. In accordance with
section 1833(a)(3) of the Act, payment for FQHC services may not exceed
80 percent of its cost. Section 1866(a)(2)(A) of the Act, referred to
in section 1830(a)(3), addresses coinsurance liability of
beneficiaries, providing that coinsurance be based on charges.
Consequently, our regulations provide that an FQHC may not charge
beneficiaries more than 20 percent of the charge for the service
furnished regardless of the payment the FQHC receives from Medicare.
We believe that, on average, many FQHCs will recover their costs
under this provision. While it is possible that, in situations
involving minimal services, the FQHC will recover less than its cost,
it will recover more than its costs in certain other visits involving
high charge services.
We acknowledge that FQHCs must use a sliding fee schedule for
beneficiaries within 200 percent of poverty levels. Thus, FQHCs with a
high proportion of Medicare beneficiaries subject to the sliding fee
could receive less than cost from their Medicare population. However,
we believe that the law is clear regarding Medicare payment and
beneficiary coinsurance liability.
Effective Date
Comment: One commenter requested clarification of the effective
date for those centers that had previously obtained ``look-alike''
status under the Medicaid program.
Response: In accordance with Sec. 405.2434(b)(2), an FQHC's
effective date may be October 1, 1991, if it met all Federal
requirements on that date and if it applied to be a Medicare FQHC by
August 11, 1992. An entity that requested to become an FQHC by filing a
signed agreement within 60 days of publication of the regulation could
elect to choose an effective date from October 1, 1991 (the effective
date of the law) up to and including August 11, 1992. An entity does
not qualify as an FQHC on October 1, 1991 unless it met all Federal
requirements on that date. The preamble to the June 12, 1992 regulation
states that Medicare will pay for FQHC
[[Page 14645]]
services furnished on or after October 1, 1991 by entities that met the
criteria in the regulation on that date and file a signed statement
within 60 days of the date of publication.
More specifically, an entity that is not receiving a grant under
the PHS Act but meets grant requirements, and applied for and obtained
FQHC status under the Medicaid program, and was approved without a
waiver could be paid for services from October 1991 if the entity met
the requirements in part 491 and applied to Medicare timely. The
earliest date for which an entity can qualify is October 1, 1991. HRSA
makes a recommendation about an entity's status after the entity has
applied and met all HRSA requirements, and we make the decision to
approve the entity as an FQHC. If an entity was approved as a Medicaid
FQHC ``look-alike'' without waiver after October 1, 1991, the earliest
date of FQHC approval for such a center is the date we approve the
entity as an FQHC.
Comment: One commenter objected to the August 11, 1992 date for
filing for approval as an FQHC from October 1991. The commenter
believed that we should permit exceptions to the August 11, 1992, date
for centers that provide a ``good cause'' explanation for their delay.
Response: We and the National Association of Community Health
Centers (NACHC) have made extensive efforts to assist centers in
applying to become FQHCs. Letters were sent to each grantee, ``look-
alike,'' and FFHC to make them aware of the process for FQHCs to
receive payment as an FQHC from October 1, 1991.
We have already processed payment adjustments to take into account
entities that acted timely to apply for FQHC status effective October
1, 1991. Making payment to 1991 for FQHCs that did not file in time
would be administratively burdensome because it involves the entity
refunding previously collected deductibles to beneficiaries and billing
for past preventive services. We believe the ``window'' we permitted
for FQHCs to qualify to October 1991 was generous, and we believe that
our letters and the letters from NACHC gave facilities adequate time
and information to apply and qualify. Therefore, we are maintaining the
policy in our 1992 rule.
Scope of Services
Comment: One commenter believed the law defines FQHC services as
those generally furnished by community health centers (CHCs). He noted
that this is considerably different from RHC services and recommended
revision of the scope of services to reflect this.
Response: The Act does not define FQHC services as the services
provided by CHCs. Section 1861(aa)(3)(A) and (B) of the Act defines the
scope of FQHC benefits in terms of those benefits enumerated in the RHC
law (section 1861(aa)(1)(A)-(C) of the Act) and preventive primary
health services that a center is required to provide under sections
329, 330 and 340 of the PHS Act. The law does not require that a center
be a CHC to qualify as an FQHC; it does provide that a facility may
qualify as an FQHC if it meets the requirements to become a CHC under
section 330 of the PHS law. We do not have the authority to expand the
FQHC scope of benefits beyond those specified in the law.
Comment: Several commenters objected to the regulation's definition
of preventive primary health services. Some commenters believed that
all services required under section 330 of the PHS Act, such as
transportation services, should be covered as preventive services.
Response: Section 1861(aa)(3) of the Act specifies that FQHC
services include those benefits defined as RHC services in section
1861(aa)(1)(A)-(C) of the Act and preventive primary health services
that are required under sections 329, 330 and 340 of the PHS Act. A
service must first be recognized as a preventive primary health service
under PHS law and HRSA guidelines to be included as a preventive
primary health service for Medicare FQHC purposes. If a service is not
included as a primary preventive service under the PHS Act and the HRSA
guidelines, there is no authority for Medicare to cover the service.
42 CFR parts 51c and 56 define preventive services as medical
social services, nutritional assessment and referral, preventive health
education, children's eye and ear examinations, prenatal and post-
partum care, perinatal services, well child care (including periodic
screening), immunizations and voluntary family planning. Based on the
U.S. Preventive Services Task Force Report for persons age 65 or older,
HRSA further requires its grantees to provide additional preventive
services that are specified in Sec. 405.2448.
Transportation services are helpful in promoting access to
preventive health care, especially for individuals living in
underserved areas. Such services, however, are not defined as
preventive services by HRSA, thus we do not have the authority to
include such services as FQHC preventive services.
Comment: One commenter recommended that the rule be clarified to
allow for the inclusion of advanced practice mental health nurses under
the FQHC benefit. The commenter believed it was the intent of the law
to include these practitioners under ``specialized nurse
practitioners;'' however, they are not all technically classified as
nurse practitioners.
Response: The Act does not recognize or specifically refer to the
services of advanced practice mental health nurses. We do not have the
authority to expand the FQHC scope of benefits beyond those the
services of practitioners described in the Act. The FQHC scope of
benefits includes some, but not all, categories of advanced practice
nursing. For example, it does not include clinical nurse specialists.
Other categories of advanced practice nursing such as physician
assistants and nurse practitioners may provide mental health services
covered under the FQHC benefit. Services provided by clinical nurse
specialists, for example, could be covered only if they were ``incident
to'' services as provided in section 1861(aa)(1)(B) of the Act. This
section provides for coverage of services furnished incident to the
services of physicians, certain mid-level practitioners, clinical
psychologists, or clinical social workers.
Comment: Numerous commenters objected to the provision that limits
FQHC services to those furnished outside a hospital. FQHCs routinely
follow their patients to the hospital setting and noted that it is
burdensome to bill the carrier separately for these services as non-
FQHC services. Further, this mechanism provides an opportunity for
duplicate billing. Some commenters noted that RHCs may bill for
hospital services and believe the same policy should be applicable to
FQHCs.
Response: There are two reasons why FQHC services are limited to
those furnished outside of the hospital: (1) Section 1861(aa)(3) of the
Act requires that FQHC services be provided only to outpatients, and
(2) section 1862(a)(14) of the Act prohibits payment for services
furnished to hospital patients, except as specified in the law. Section
1862(a)(14) of the Act, in enumerating those who may receive payment
for services furnished in a hospital, does not include either RHCs or
FQHCs. Therefore, payment cannot be made for FQHC services to hospital
patients.
The Social Security Amendments of 1983, Pub. L. 98-21, on April 7,
1983, added section 1862(a)(14) to the Act. This section prohibits
payment under Medicare for any service provided to a hospital inpatient
that is not furnished by the hospital itself or furnished under
arrangements made by the hospital with
[[Page 14646]]
the entity furnishing the service. Section 1862(a)(14) of the Act also
states that certain services are specifically excluded from this
prohibition. The exclusion is limited to physicians' services, services
described by section 1861(s)(2)(K)(i) of the Act (certain physician
assistant services, nurse practitioner, clinical nurse specialist, and
nurse-midwife services), qualified psychologist services, and services
of a certified registered nurse anesthetist.
Section 1862(a)(14) of the Act was further revised by section
9343(c) of the Omnibus Budget Reconciliation Act of 1986 (OBRA '86),
Pub. L. 99-509, to apply to hospital outpatients as well as hospital
inpatients. As a result, the law now prohibits payment, except as
specifically enumerated, for both hospital outpatients and inpatients.
By its terms, then, section 1862(a)(14) of the Act prohibits Medicare
payment for FQHC services provided to a hospital patient.
However, we do not believe it is the intent of the law to prohibit
FQHC practitioners from following their patients to a hospital setting.
The law provides two alternative payment mechanisms for such services.
First, the FQHC may look to the hospital for payment for the services.
Second, FQHC practitioners can follow patients to a hospital and
provide services, but the practitioner may not bill those services as
FQHC services. Instead, FQHC physician visits are covered under other
Part B provisions of Medicare as physician services, and the FQHC
practitioner must bill the Medicare carrier to receive payment.
Section 1842(b)(6) of the Act provides that a facility, under
certain conditions, may bill the program for the services of its
employees. In such a case, it is not necessary that a FQHC practitioner
employed by an FQHC bill for the services provided in hospitals;
rather, the FQHC may bill the program on behalf of its employees using
the form HCFA-1500. These bills must be sent to the local carrier
instead of the intermediary processing cost-based claims are paid using
the routine part B payment methodology (in most cases resource-based
relative value system fee schedules).
Despite the commenters' allegations to the contrary, an RHC cannot
bill for hospital services. The same statutory requirements that extend
to an FQHC apply to an RHC as well.
Comment: Several commenters objected to the exclusion of diagnostic
x-rays from the definition of FQHC services. They supported inclusion
of such services under the FQHC benefit as incident to a physician's
service. They argued that this would promote administrative ease in
bill submission.
Response: Section 1861(aa)(1)(A) of the Act defines RHC (and, thus
FQHC) services to include physicians' services and such services and
supplies as are covered under section 1861(s)(2)(A) of the Act if
furnished as an incident to a physician's professional service and
items and services described in section 1861(s)(10) of the Act
(pneumococcal and influenza vaccine).
The technical component of x-ray services, as distinct from
physician services, is covered under section 1861(s)(3) of the Act.
Therefore, it is not included in the definition of FQHC services. We
have no authority to change this requirement under current law.
However, we are interpreting the law as permitting the professional
component of the x-ray to be included as an FQHC-covered service as a
physician service. Moreover, though the technical component of x-ray
services is not covered under the FQHC benefit, it may be claimed under
Part B of Medicare by billing the carrier.
Comment: One commenter noted that the exclusion of radiology and
hospital services from the scope of FQHC services presents a problem in
waiver of the deductible. By virtue of its mission, an FQHC is treating
a population that generally has insufficient funds to meet necessary
medical expenses. The exclusion of some services from the scope of FQHC
services will result in a deductible liability for those excluded
services and present a financial hardship for low income beneficiaries.
The commenter recommended that we waive the deductible for all services
provided in an FQHC, regardless of whether they are FQHC services or
not.
Response: Section 1833(b)(5) of the Act provides that the Medicare
deductible does not apply to FQHC services. Section 1861(aa)(3) (A) and
(B) of the Act defines the scope of FQHC services in terms of those
services furnished by an RHC and preventive primary health services
that a center is required to provide under the PHS law and HRSA
guidelines.
The rationale for excluding the technical component of radiology
services to hospital inpatients from the definition of FQHC services
has been discussed in the prior two responses. Section 1861(s)(3), and
not 1861(s)(2)(A), of the Act is the basis for the diagnostic x-ray
benefit; thus, the technical component of x-ray services is not
included within the FQHC benefit. In accordance with sections
1861(aa)(3) and 1862(a)(14) of the Act, FQHC services cannot be
provided to hospital patients. We have no authority to waive the
deductible for these services, which are not FQHC services.
We acknowledge that paying the deductible for these services may be
difficult for some beneficiaries. Beneficiaries suffering financial
hardship may be eligible for assistance under the Qualified Medicare
Beneficiaries (QMB) Program. A qualified Medicare beneficiary is an
individual who is entitled to Medicare hospital insurance benefits
under Part A, with or without payment of premiums, who also has an
income that does not exceed 100 percent of the Federal poverty level
and has resources that do not exceed twice the maximum amount
established for Supplemental Security Income eligibility.
Under the QMB program, Federal financial participation is available
to State Medicaid agencies for medical assistance for the beneficiary's
Medicare cost sharing expenses. The expenses include Medicare Part A
and Part B deductibles and coinsurance. Medicaid pays the coinsurance
and the deductible. This will help beneficiaries to avoid the out-of-
pocket costs. The QMB program provides a mechanism to assist those
beneficiaries with limited means to pay the deductible.
Comment: One commenter noted that although nurse-midwives are
mentioned in several places throughout the FQHC regulation,
Sec. 405.2446, which defines the FQHC covered scope of services, does
not include nurse-midwives.
Response: We agree with the commenter and are revising
Sec. 405.2446 to include the services of nurse-midwives as covered FQHC
services. We intend to propose a change to the definition of nurse-
midwife in a proposed rule on RHCs currently in process, which will
also affect FQHCs. In the meantime, State law governs which nurse-
midwives qualify to provide services in FQHCs.
Comment: One commenter recommended coverage of clinical nurse
specialists as FQHC practitioners. These health care practitioners are
registered nurses with master's degrees in a defined clinical area of
nursing. They are similar to nurse practitioners and are educated and
trained to provide preventive services and primary care. OBRA '90
recognizes these health care practitioners as independent providers in
rural areas. Therefore, the commenter believed that we should cover the
individual services of these practitioners within the scope of FQHC
services. In addition, the commenter wanted the phrase ``clinical nurse
specialist'' added to the definition of an FQHC visit.
[[Page 14647]]
Response: The Act does not clearly provide coverage for clinical
nurse specialists services in an RHC or FQHC. Although the definition
of a clinical nurse specialist is included in section 1861(aa)(5) of
the Act, the Act does not explicitly include these practitioners in the
scope of the benefit.
Comment: One commenter recommended that the adjective
``specialized'' be removed as a modifier to nurse practitioner as most
States do not use this term in licensing nurse practitioners.
Response: We have been advised by nursing associations that the
term ``nurse practitioner,'' which is defined in Sec. 405.2401(c)(17),
encompasses all specialties among nurse practitioners. Consequently, it
is not necessary to use the term ``specialized'' and we are removing
the definition of ``specialized nurse practitioner'' from
Sec. 405.2401.
Primary Preventive Services
Comment: Several commenters objected that we did not include dental
services as preventive care covered under the FQHC benefit. They noted
that the U.S. Preventive Services Task Force Report includes an oral
health component and argued that such services are essential for
elderly patients. Further, preventive primary dental services are
separately mandated in section 329 and 330 of the PHS Act. Therefore,
the commenters believed that the Congress did not intend to exclude
dental services from the FQHC benefit and that its failure to amend
section 1862(a)(12) of the Act was a technical oversight.
Response: Dental services are not included in the HRSA definition
of preventive primary health services; they are considered a separate
benefit under HRSA services. The PHS Act provides for preventive dental
services as a primary health care benefit separate from preventive
primary health services. That is, section 329(a)(6)(C) of the PHS Act
defines preventive primary health services, while a different section
of the law, section 329(a)(6)(F), defines preventive dental services.
In defining the scope of FQHC preventive services, the Act specifically
refers only to preventive primary health care services in sections 329,
330 and 340 of the PHS Act.
Further, section 1862 of the Act contains an exclusion for dental
services, prohibiting payment for services in connection with the care,
treatment, filling, removal or replacement of teeth or structures
directly supporting the teeth. OBRA '90 did not amend section
1862(a)(12) of the Act to remove the exclusion of dental services for
FQHCs. However, it did amend other provisions of section 1862(a). As a
result, the regulations exclude dental services from the definition of
FQHC preventive primary health services and will continue to do so.
Although the U.S. Preventive Services Task Force Report includes an
oral health component for the elderly, that oral component is
categorized as a counseling service by the Task Force. The report
intended that a primary care practitioner would briefly examine a
patient's mouth for visible signs of disease and counsel the patient to
see a dentist if there is a need for routine prophylactic services. If
the beneficiary had need of prophylactic or other dental services, he
or she would be referred to a dentist. The oral health component is not
the same as dental services.
Comment: Several commenters objected to the exclusion of screening
mammography services as an FQHC preventive service. Although this
service is payable under Part B, they note that application of the
deductible and having to make an appointment to have the mammogram
performed at another facility would deter some of the most needy
population from getting this valuable service.
Response: Sections 1834(c) and 1861(s)(13) of the Act provide for
coverage of screening mammography for certain women entitled to
Medicare, subject to frequency limitations, quality standards and
special payment rules. The Act provides coverage of screening
mammography services only in a facility that meets the Medicare
requirements for certification. An FQHC may provide and bill for
screening mammography services under the mammography benefit as long as
it meets the applicable quality standards and coverage requirements.
The quality standards are designed to protect the health and safety of
Medicare beneficiaries.
As explained above, the scope of benefits under FQHCs does not
include radiological services. In addition, the Act contains special
provisions for the coverage of screening mammography as a Medicare
benefit, and those provisions apply to FQHCs in the same manner as they
apply to other entities.
Comment: One commenter believed that we should recognize services
listed in the U.S. Preventive Services Task Force Report for people
under age 65 as preventive services for purposes of the FQHC benefit.
Response: By definition, the Medicare program is a Federal health
insurance program for people age 65 or older and certain disabled
individuals. Section 1861(aa)(3)(B) of the Act specifies that FQHC
services include preventive primary health services that a center is
required to provide under sections 329, 330 and 340 of the PHS Act. A
service must first be recognized as a preventive primary health service
under HRSA guidelines in order to be included as an FQHC preventive
primary health service.
HRSA defines preventive primary health services in 42 CFR parts 51c
and 55 as medical social services, nutritional assessment and referral,
preventive health education, children's eye and ear examinations,
prenatal and post-partum care, perinatal services, well child care
(including periodic screening), immunizations, and voluntary family
planning services. These are the required preventive primary health
services as defined by HRSA. Thus, these are the preventive primary
health services that we require in an FQHC.
In preparing the final rule with comment period for FQHC preventive
services, we noted that this list of services was not likely to
significantly benefit the majority of Medicare beneficiaries. We worked
with HRSA to expand the HRSA-required preventive primary health
services. The ``Guide to Clinical Preventive Services,'' prepared under
the supervision of the U.S. Preventive Services Task Force, provides
further recommendations for clinical practice on additional preventive
interventions. HRSA adopted the policy that the list of preventive
primary health services recommended by the task force in the ``Guide to
Clinical Preventive Services'' for people aged 65 or older is
consistent with the preventive primary health services that its
grantees are already required to provide.
The commenter believed that we should recognize services
recommended for people under age 65 as preventive services for purposes
of the FQHC benefit. The ``Guide to Clinical Preventive Services''
lists the same preventive services for both the under age 65 and the
over age 65 populations, with the exception of counseling regarding
sexual practices. The sexual practices category includes sexually
transmitted diseases, partner selection, contraceptive devices, and
unintended pregnancy. Since, the HRSA regulations at 42 CFR part 55
already include the majority of these services under preventive health
education and family planning, we do not believe it is appropriate to
explicitly include these in the list of preventive primary care
services under Medicare.
Comment: One commenter noted the value of proper nutrition in
health outcomes, particularly with diseases of
[[Page 14648]]
hypertension, obesity and diabetes. The commenter requested
clarification regarding the provision of dietician services under the
``incident to'' provision if they are provided by a consultant.
Response: The FQHC benefit includes services furnished by certain
professionals. Section 1861(aa)(1) of the Act defines these
professionals as a physician, nurse practitioner, physician assistant,
clinical psychologist or clinical social worker. The benefit also
includes services furnished ``incident to'' the services of these
professionals as long as the individual furnishing the service is an
employee of the FQHC.
Dietician services could be covered FQHC services if provided to
the beneficiary as ``incident to'' services. Dietician services must
meet the criteria for ``incident to'' services established in sections
406 and 410 of the Medicare RHC and FQHC Manual. These sections state
that services and supplies incident to a physician's or mid-level
practitioner's professional services are covered as FQHC services as
long as they are: furnished as an incidental, although integral, part
of a professional's services; of a type commonly furnished either
without charge or included in the FQHC's bill; of a type commonly
furnished in a physician's office; services provided by clinic
employees other than those services listed in section 400A of the
Medicare RHC and FQHC Manual furnished under the direct, personal
supervision of a physician or mid-level practitioner; and furnished by
a member of the clinic or center's staff who is an employee of the
clinic or center. These criteria follow the longstanding criteria for
services ``incident to'' physician services.
The Medicare RHC and FQHC Manual provides that there must be a
physician's or mid-level practitioner's personal service furnished to
which the non-physician's services is an incidental, although integral,
part. This does not mean, however, that each occasion of service by a
nonphysician need also always be the occasion of the actual rendition
of personal professional services by the physician or mid-level
practitioner. This requirement is also met for nonphysician services
furnished during a course of treatment in which the physician or mid-
level practitioner performs an initial and subsequent service with a
frequency that reflects his or her active participation in, and
management of, the course of treatment. This means that there must have
first been a direct, personal, professional service furnished by a
physician or mid-level practitioner to initiate the course of treatment
of which the nonphysician service is an incidental part. In addition,
there must be subsequent services performed by the physician or mid-
level practitioner of a frequency that indicates his or her continuing
active participation in and arranging the patient's course of
treatment.
Dietician services that are provided in an FQHC may be covered if
they are provided directly by a physician or appropriate mid-level
practitioner or are incident to his or her services. This does not
include services that are provided independently by a dietician without
the active involvement of the FQHC physician or mid-level
practitioners.
Consistent with our longstanding policy, as reflected in section
406 of the Medicare RHC and FQHC Manual, ``incident to'' services must
be furnished by a member of the clinic staff who is an employee of the
clinic. Thus, in order for dietician services to be covered FQHC
services, the dietician must be an employee of the FQHC. To determine
the employer/employee relationship, the ``usual common law rules,''
that are referred to in section 210(j)(2) of the Act, are applied. In
applying these rules, we consider not only who pays a person's salary
and fringe benefits but also other factors including who has hiring and
firing authority and who pays Federal Income Contributions Act (FICA)
taxes and withholds income tax.
The requirement that personnel who perform ``incident to'' services
must be employees of the clinic or center for purposes of coverage is a
longstanding Medicare policy. The basis for this requirement is in
section 1861(s)(2)(A) of the Act. This section limits coverage of
``incident to'' services to those services that are commonly furnished
in physicians' offices and are commonly either furnished without charge
or included in the physicians' bills. We have consistently interpreted
this provision to exclude coverage of ``incident to'' services provided
by non-employees of physicians, and in this case, of clinics. In
addition, the employer/employee relationship requirement ensures that
physicians will have the authority to exercise appropriate medical
supervision and management control over the qualifications and
performance of non-physicians for whose services he or she will be
billing Medicare. Since the PHS Act encourages FQHCs to contract to
provide services, we do not wish to create barriers to, and burdens on,
FQHCs that wish to contract for non-physician professional services.
Therefore, payment may be made for services provided by FQHC contracted
professionals. However, this FQHC provision does not apply to RHC
services. We plan to address this issue in a future proposed rule.
Comment: One commenter recommended that nutritional education and
counseling be listed as a separate preventive primary health service.
Response: As noted above, the Act links preventive primary health
services to the PHS requirements. Although HRSA guidelines include
nutritional assessment, they do not include nutritional counseling and
education. Because the HRSA guidelines do not specifically include
nutritional education and counseling as a preventive primary health
service, we do not have the authority to include these as preventive
services in the FQHC regulations.
Nutritional education and counseling are tools to maintain or
improve an individual's nutritional status. Generally, nutritional
education and counseling can be defined as a means of educating the
patient. Nutritional education and counseling for a Medicare
beneficiary could be covered if it is provided to the beneficiary as a
service that is ``incident to'' the service of a particular
practitioner. The beneficiary must see an attending FQHC professional
for a medical reason to which the nutritional education and counseling
is incident. For example, nutritional education for a diabetic patient
being actively monitored by an FQHC practitioner could be covered as an
``incident to'' service.
We note that encounters with a nurse or dietitian that are not
associated with a visit by an FQHC practitioner are not billable as
visits. The costs of the personnel providing the educational services,
however, may be included in the center's allowable costs.
Comment: One commenter requested clarification of what is meant by
nutrition assessment and who could perform the assessment. The
commenter recommended that a registered dietitian is the best qualified
professional to provide the service.
Response: HRSA guidelines include nutritional assessments and
referrals as preventive primary health services; therefore they are
covered as FQHC preventive primary health services. Because nutritional
assessments are FQHC covered preventive services, any professional in
an FQHC can provide these services. We believe that most physicians,
nurse practitioners, and physician assistants, have the skills
necessary to conduct a nutritional assessment as a preventive primary
health service for Medicare beneficiaries.
[[Page 14649]]
However, the physician may use the services of a dietician employed
by the FQHC for those beneficiaries who require extensive assistance in
making dietary changes. As noted above, the services of a dietician may
be covered under the FQHC benefit when the service is provided to the
beneficiary as ``incident to'' the services of a physician, nurse
practitioner, or a physician's assistant service. An FQHC professional
must see the beneficiary for a medical reason to which the services of
a dietician are incident. The initial face-to-face encounter with the
attending professional is necessary for the service to be billed as an
FQHC visit. The definition of a visit is discussed at Sec. 405.2463.
Comment: Several commenters voiced strong objections to the
exclusion of group counseling as a preventive service. They believed it
is more efficient for the center to furnish needed counseling services,
such as diabetic education, in a group setting rather than to use
valuable physician time.
Response: As noted above, the Act links the definition of
preventive primary health services under the FQHC benefit to the PHS
law. Group counseling is not included as a preventive primary health
service in the PHS law. As a result, we do not have the authority to
include such services as FQHC preventive services.
In addition, group counseling is seldom a medical service, and
generally, no active medical treatment is provided during a classroom
situation. Moreover, there is an absence of scientific evidence that
group counseling, such as smoking cessation classes, alters behavior or
health status of individuals. Although group counseling services, such
as diabetic education, are not covered preventive services, individual
counseling services could be considered covered FQHC services if they
are provided to the beneficiary as an ``incident to'' service.
Comment: One commenter noted that items five and six in the
preventive services list both say prenatal. The commenter believed that
one of the preventive services should be perinatal care.
Response: Section 1861(aa)(3)(B) of the Act specifies that FQHC
services include preventive primary health services that a center is
required to provide under sections 329, 330 and 340 of the PHS Act. In
developing the FQHC regulations, we looked to 42 CFR parts 51c and 56
of the HRSA regulations. These regulations are repeated in
Sec. 405.2448 exactly as they are in the HRSA regulations; the HRSA
regulations do not include perinatal services. However, the PHS law
(see 45 U.S.C 329(a)(6)(C)) does provide for perinatal services.
Therefore, we are revising Sec. 405.2448 to include perinatal care as a
covered preventive service.
Comment: Several commenters objected to the requirement in the
preventive services definition that services be furnished by a
physician or an employee of the center. The commenters noted that many
centers make extensive use of contract services in the provision of
preventive care services that may not be needed on a daily basis.
Response: The FQHC benefit includes a provision for services
furnished ``incident to'' the services of FQHC professionals as long as
the individuals furnishing the services are employees of the FQHC. As
we noted above, it is a longstanding Medicare policy, based on our
interpretation of section 1861(s)(2)(A) of the Act, that an individual
who performs ``incident to'' services must be an employee of the clinic
or center for purposes of coverage.
The list of FQHC preventive primary health services includes the
type of services that does not generally require the skill level of a
specialist. It is our intent that preventive primary health services,
for the most part, involve a screening process to detect health
conditions that could indicate adverse health outcomes. Patients should
be referred for diagnostic services if the initial screening indicates
a potential problem. Thus, we believe that the preventive primary
health services specified in the regulations can be provided by the
staff of the FQHC. As a result, we are retaining the requirement that
FQHC preventive services be provided by either a physician or an
employee of the center.
Comment: One commenter questioned how his facility, which provides
noninvasive diagnostic services can be reimbursed through FQHCs.
Response: It is not clear what the commenter meant by ``noninvasive
diagnostic services.'' Diagnostic laboratory services must be billed by
the entity providing the services. Consequently, if the commenter
intended to refer to laboratory services, the entity must bill for such
services itself. As noted previously, diagnostic radiological services
are not covered FQHC services. Thus, an entity could not be paid under
the FQHC benefit for the technical component of radiological services.
Although diagnostic radiological services are not covered FQHC
services, a supplier can be paid for these services furnished to FQHC
patients under normal Medicare Part B payment rules.
Comment: One commenter expressed concern that physicians and nurse
practitioners are untrained in hearing testing and the fitting of
hearing aids. The commenter recommended that Medicare ensure that
beneficiaries have access to hearing aid distributors either for the
initial FQHC covered hearing screening service or for follow-up
services. The commenter suggested that we require that any patient
whose screening shows that follow-up care is necessary be referred to a
State licensed or National Board for Certification-Hearing Instrument
Sciences (NBC-HIS) certified hearing aid distributor.
Response: According to section 1862(a)(7) of the Act, diagnostic
audiological services for the purpose of fitting a hearing aid are not
Medicare covered services. It would be inappropriate for the Medicare
program to regulate referrals for such noncovered services.
The HRSA guidelines provide that hearing screening is a preventive
primary health service. The skills that are needed to provide
diagnostic services for hearing screening are minimal, and they can be
acquired by staff with minimal training. Therefore, we believe that
FQHC staff generally are qualified to perform hearing screening
services for Medicare beneficiaries.
According to the Medicare Carrier's Manual, section 2070.3,
additional diagnostic services beyond hearing screening are covered by
Medicare when a physician orders such testing for the purpose of
obtaining additional information necessary for his or her evaluation of
the need for or appropriat
FR Doc. 96-7787 Medicare Program; Payment for Federally Qualified Health Center Services
e type of medical or surgical treatment for a
hearing deficit or related medical problem. However, additional service
is not covered when the medical or surgical treatment is already known
by the physician or is not under consideration and the diagnostic
services are performed only to determine the need for or the
appropriate type of hearing aid.
Comment: One commenter advised us of an upcoming HRSA directive
requiring testing for tuberculosis of certain high risk patients. Since
this will be a required preventive primary health service for all
grantees, the commenter recommended that the Medicare list of
preventive services be similarly amended.
Response: Since the Act links the definition of primary preventive
services in an FQHC to the services required by HRSA of its grantees
under sections 329, 330 and 340 of the PHS Act, we believe that the
regulations should reflect HRSA guidelines. HRSA has sent a memorandum
to grantees to
[[Page 14650]]
notify them that tuberculosis testing will be included as a preventive
primary health service. Therefore, we are revising Sec. 405.2448 to
specify that FQHC covered preventive primary health services include
testing of certain high risk patients for tuberculosis.
Clinical Psychologist and Clinical Social Workers
Comment: One commenter requested clarification as to why the RHC
regulations were not similarly amended to include clinical
psychologists and clinical social workers in accordance with changes
made in the law years earlier.
Response: OBRA '87 added coverage of clinical psychologists in RHCs
and OBRA '89 added coverage of clinical social workers in RHCs. We are
in the process of developing a proposed rule to make those changes to
the RHC regulations. Unlike the OBRA '89 provisions affecting RHCs,
OBRA '90 authorized us to issue final regulations and add coverage of
FQHCs without first issuing a proposed rule and soliciting public
comment.
Comment: One commenter noted that the regulations state that
clinical psychologist and clinical social worker services are covered
if provided by a center employee. The commenter believed that it is
often more efficient to contract for such service in the FQHC setting
and recommends modification of the regulations to cover such purchased
services.
Response: Previously, we permitted facilities to contract only for
physician services. After considering the comment, we came to the
conclusion that it would be inconsistent with the provisions of the PHS
Act (as explained elsewhere in this preamble) to prohibit an FQHC from
contracting for the services of clinical psychologists and clinical
social workers. Therefore, we are revising Sec. 405.2450 to provide
that the services of clinical psychologists and clinical social workers
may be covered if they are furnished by an individual who owns, is
employed by, or furnishes services under contract to the FQHC. We are
also revising Secs. 405.2468 and 491.9(a)(3) to clarify that a clinical
social worker or clinical psychologist may furnish services under
contract to the FQHC.
Comment: One commenter objected to the limitation on clinical
social worker service to those necessary to the diagnosis or treatment
of mental illnesses. They noted that, given the special needs of the
patient population served by FQHCs, social workers may perform other
health related services for patients.
Response: Section 1861(hh)(2) of the Act provides that clinical
social worker services include services performed by a clinical social
worker for the diagnosis and treatment of mental illnesses. The Act
does not indicate that any different definition of services provided by
a clinical social worker should apply for purposes of the FQHC benefit.
The comment implies that the services of clinical social workers
are needed to provide non-medical services to the FQHC population. Even
if such services might be helpful to the FQHC population, non-medical
services are not covered by Medicare under any circumstances.
Comment: Several commenters objected to the application of the
62\1/2\ percent mental health limitation to the FQHC clinical
psychologist and clinical social worker. They argued that if the
Congress had intended this limitation to apply, it would have
explicitly stated so in the Act.
Response: Section 1833(c) of the Act states:
Notwithstanding any other provision of this part, with respect
to expenses incurred in any calendar year in connection with the
treatment of mental, psychoneurotic and personality disorders of an
individual who is not an inpatient of a hospital at the time such
expenses are incurred, there shall be considered as incurred
expenses for purposes of subsections (a) and (b) only 62\1/2\
percent of such expenses.
This section of the Act clearly indicates that there is a mental health
treatment limitation of 62\1/2\ percent for clinical psychologist and
clinical social worker and other practitioner treatment services
consistent with State law and makes clear that the limitation applies
unless it is explicitly waived elsewhere in the law. This result is
consistent with section 1861(hh)(2) of the Act, which defines clinical
social worker services as services performed by a clinical social
worker for the diagnosis and treatment of mental illnesses.
Since there is no statutory exception for FQHCs, the limitation on
payment for mental health treatment applies to all FQHCs, free-standing
and provider-based.
Payment Issues
Productivity Screening Guidelines
Comment: A commenter stated that the productivity standard of 4200
visits for a full time equivalent physician is not a reasonable
standard and acknowledged that HRSA uses this standard but stated that
HRSA applies the standard differently in regard to HRSA's encounters as
opposed to HCFA's visits.
Response: Our use of the term ``visit'' is meant to be synonymous
with the term ``encounter'' used by HRSA. The same concern about
conflicting use of terms by us and HRSA was raised when we implemented
productivity screens for the RHC program. At that time, we and HRSA
agreed on the meaning of the terms ``encounter,'' as used by HRSA, and
``visit,'' as used by us; they were to be used interchangeably. (This
issue was addressed in a final notice, Rural Health Clinic Payment
Limits and Productivity Screening Guidelines, published in the Federal
Register on December 1, 1982 at 47 FR 54165). We and HRSA agreed to a
common definition of these two terms to eliminate any difficulties
caused by the use of different terms. Clinics also found it difficult
to comply with the separate productivity guidelines and reporting
requirements used by us and HRSA. As a result we adopted the
productivity screening guidelines used by HRSA. We continue to use the
HRSA guidelines.
Since the time that we and HRSA originally reached agreement on the
common meaning of ``encounter'' and ``visit,'' the RHC program has
expanded and the FQHC program has been implemented. We have reexamined
our definition. We are modifying the definition of a ``visit'' to
accommodate the addition of clinical psychologists and clinical social
workers (Sec. 405.2463). This change is discussed in more detail in
answer to other comments. We will continue to use the HRSA productivity
guideline of 4200 visits for full time equivalent.
Comment: A number of commenters stated that the screening
guidelines are not appropriate for all FQHCs. For instance, a commenter
stated that, without special attention, small rural health centers and
those in frontier areas would be penalized by the productivity and
overhead screens. Two other commenters stated that the standard should
be lowered and that separate and lower standards should be developed to
apply to FQHCs with home visiting and teaching programs. The commenter
stated that Federal policy is clearly moving in the direction of
providing incentives to increase the number of primary care physicians
and that health centers will be increasingly asked to take on the role
of residency training and argued that a productivity standard should
not impede this policy direction. Additionally, two other commenters
stated that the hourly standard, used in the past by the FFHCs, of 2.4
visits per hour is a more realistic standard than the one we had
published.
[[Page 14651]]
Response: We use the same guidelines applied by HRSA in the grant
review process and the ongoing monitoring of its programs. We believe
it is appropriate to use uniform productivity guidelines rather than
developing separate guidelines. If, however, an FQHC cannot meet these
guidelines, the FQHC's intermediary has the authority to modify the
productivity guidelines. An FQHC that has atypical circumstances may
request exceptions to the guidelines from its intermediary.
Provider-Based/Freestanding FQHCs
Comment: Commenters questioned the need for different payment
methodologies for freestanding and provider-based FQHCs and why
provider-based FQHCs use an intermediary other than the intermediary
used by the freestanding FQHCs and stated that the Act does not provide
for a distinction between provider-based and freestanding FQHCs.
Response: As we stated in the June 12, 1992 final rule, the same
qualification and coverage rules apply to both provider-based FQHCs and
independent FQHCs. Section 1833(a)(3) of the Act allows the Secretary
latitude in defining the payment methodology for FQHCs. Consistent with
the RHC payment methodology, we believe, at this time, that two
different methodologies should apply to provider-based and freestanding
FQHCs, as well. Like an RHC, an FQHC that is an integral part of a
provider should follow the rules applicable to the provider, since it
is a provider component. Having the provider's intermediary pay the
FQHC under the same cost reporting and payment procedures used by other
components of the provider is more efficient, both from the standpoint
of the intermediary and the provider. This promotes consistency and
rationality in the payment system, eliminates duplicate audits and
minimizes the possibility of program abuse.
Comment: A commenter pointed out that there is a cap for payment to
freestanding FQHCs but not provider-based FQHCs.
Response: While there is no payment limit (cap) for provider-based
FQHCs as there is for freestanding FQHCs, the allowable costs of
provider-based FQHCs' are controlled by the Medicare principles of
reimbursement. These principles permit us to determine if costs are
reasonable and limit reimbursable costs to those that are allowable and
necessary for the efficient delivery of services.
Comment: One commenter stated that freestanding FQHCs electing
payment on a reasonable charge basis will not be reimbursed for
preventive services and requested that the regulation clarify that
provider-based FQHCs will be paid for preventive services. Another
commenter suggested that the payment for these additional preventive
services be specifically addressed and recommended that payment for
these services be on an actual cost basis.
Response: All freestanding FQHCs are paid on an all-inclusive rate
basis subject to tests of reasonableness. Freestanding FQHCs do not
have the option to elect payment on a reasonable charge basis. Further,
Sec. 405.2446(b) specifies that FQHC services that are paid for under
the Medicare program include preventive services specified in
Sec. 405.2448. This coverage applies to all FQHCs, freestanding as well
as provider based. In addition, we do not believe that it is necessary
to address specifically the payment method for these preventive
services. Except for their purpose, these preventive services do not
differ from the other services provided in a provider-based FQHC and
therefore, are paid under the same reasonable cost principles as all
other services.
Comment: One commenter questioned whether the lesser of costs or
charges limitation, which currently is applied to provider-based FQHCs,
should be applicable to any type of FQHC, as section 1833(a)(2) of the
Act specifically provides that this limitation does not apply to FQHCs.
Response: Section 1833(a)(2) of the Act requires that the lesser of
costs or charges limitation apply with respect to the facilities not
excepted under that subparagraph; the requirement simply does not apply
to FQHCs. Authority for payment for FQHCs is contained in section
1833(a)(3) of the Act, which provides that payment for FQHCs is based
on reasonable costs that are ``related to the cost of furnishing such
services or which are based on such other tests of reasonableness as
the Secretary may prescribe in regulations * * *''.
Given this broad grant of authority to use ``other tests of
reasonableness,'' we are authorized to apply tests of reasonableness
that are required to be applied to other Medicare facilities, such as
the lesser of costs or charges provision.
Visits
Comment: Several commenters expressed concern with the number of
visits per day we allow for payment purposes. They suggested that if a
patient sees more than one physician or practitioner or has a medical
and mental health service on the same day more than one visit should be
allowed.
Response: We have considered the comments, and we are amending the
regulations to permit payment for more than one visit per day under
certain circumstances. We are revising the definition of visit in
Sec. 405.2401 and moving it to Sec. 405.2463, ``What constitutes a
visit.'' We now provide that Medicare pays for an additional visit per
day if a patient has a ``medical visit'' and an ``other health visit''
on the same day. A ``medical visit'' is defined as a face-to-face
encounter between a clinic or center patient and a physician, physician
assistant, nurse practitioner, nurse-midwife, or visiting nurse. An
``other health visit'' is defined as a face-to-face encounter between
an FQHC patient and a clinical psychologist, clinical social worker, or
other health professional for therapeutic mental health services. This
change permits payment for more than one visit, but it does not change
any other part of the method for determining allowable visits. We still
would allow only one medical visit per day. Readers should note that an
increase in visits will affect the FQHC all-inclusive rate calculation,
as provided in Sec. 405.2464.
Pneumococcal Vaccine
Comment: A commenter noted that the preamble stated that
pneumococcal vaccine would be paid at 100 percent of the Medicare
reasonable cost of the vaccine and its administration. However, the
Annual Reconciliation section of the regulation did not address how we
would pay for pneumococcal vaccine.
Response: We are revising Sec. 405.2466(b), Annual Reconciliation,
to provide that, for RHCs and FQHCs, payment for pneumococcal vaccine
and its administration is made at 100 percent of Medicare reasonable
cost.
Additionally, we are making a corresponding revision to the Annual
Reconciliation section of the regulation for influenza vaccine. In
accordance with sections 4071 and 4072 of OBRA '87, influenza vaccine
and its administration became a covered Medicare service under section
1861(s)(10)(A) of the Act effective May 1, 1993.
Section 1833(a)(3) of the Act specifies that services described in
section 1861(s)(10)(A) are exempt from payment at 80 percent of
reasonable costs. For RHCs and FQHCs, payment for influenza vaccine and
its administration is at 100 percent of reasonable cost. Like
pneumococcal vaccine, influenza vaccine will be treated as a pass
through
[[Page 14652]]
and not included in the all-inclusive rate or subject to the payment
limit.
Prior to this change, costs of influenza vaccine were included in
the calculation of the all-inclusive rate and subject to the FQHC
payment limit. Therefore, the FQHC payment limit(s) has been adjusted
to reflect the removal of influenza vaccine from the calculation of the
all-inclusive rate. Removal of the influenza vaccine and its
administration results in a reduction of approximately 1 percent to the
FQHC payment limits.
Note: Influenza vaccine costs were included in the original
calculation of the preventive service adjustment as discussed in the
June 12, 1992 final rule, at 57 FR 24972.
Contracted Services
Comment: A commenter stated that if a physician is an independent
contractor on the staff of the facility and not a physician whose
services are purchased on a limited basis the physician should not be
characterized as a contracted physician that is subject to the fee
schedule.
Response: To determine whether a physician is considered an
employee, the ``usual common law rules,'' referred to in section
210(j)(2) of the Act, are applied. These rules not only consider who
pays the practitioner's salary but other factors such as who has hiring
and firing authority, and who pays FICA taxes and withholds income tax.
When a physician is considered staff of the FQHC, the physician's
salary is included on the cost report and is used in determining the
facility's all-inclusive payment rate.
Comment: A commenter stated that the allowable cost of contracted
physician services is limited to the resource based relative value
scale (RBRVS) fee schedule for the Medicare program, which is
significantly below market. The commenter further stated that this
limit would restrict the FQHCs' ability to attract needed physicians
and specialists to their communities. The commenter stated that we
should establish another test of reasonableness.
Additionally, another commenter stated that a more appropriate test
of reasonableness for contracted services would be the amount that non-
participating physicians may receive for services they provide to
Medicare beneficiaries.
Response: We believe that payment for contracted physician services
should be limited to amounts accepted by the large majority of
physicians. According to the Report to Congress on Physician
Participation, Assignment, and Extra Billing in the Medicare Program,
dated October 2, 1992, there has been a continuing increase in the
number of physicians accepting assignment on claims. When a physician
accepts assignment on a claim, he or she agrees to accept the Medicare
allowed amount as payment in full for the services provided to the
beneficiary. The Report to Congress stated that allowed charges for
Medicare assigned claims represented 83.6 percent of the total allowed
charges in 1991. This is consistent with trends indicating that
physician assignment rates have increased and have maintained a high
level. Moreover, readers should note that the limit on contracted
physician services is a screening guideline and not an absolute payment
limit. The guideline is applied to assess the reasonableness of
payments for physician services purchased by the center. The fiscal
intermediary may modify application of this screen for atypical
circumstances. For example, the screen may be modified if the
intermediary determines that access to care is significantly affected.
We believe that the amounts paid under the physician fee schedule are
appropriate limits for contracted physician services.
Payment Limit
In response to the FQHC payment methodology published on June 12,
1992, we received comments from 18 commenters regarding the application
of a payment limit. Six of these were from health centers and eight
were from organizations and persons representing the health centers'
interests. The remaining four commenters were organizations
representing hospitals, physicians, and nurses. Discussion of comments
regarding the FQHC payment limit have been organized into the following
categories: General Payment Limit; Adjustment For Projected FQHC Visit
Mix; Primary Care Family Practice Adjustment; Urban and Rural
Determination; Urban and Rural Payment Difference; and Exceptions
Option.
General Payment Limit
Comment: Many of the commenters questioned the method used to
calculate the payment limits. Commenters stated that a payment limit of
this nature is not required by the Congress, is not consistent with
Congressional intent and exceeds statutory authority. Commenters were
concerned that we used the RHC payment limit as a base for determining
the reasonable costs for FQHC services. In addition, commenters stated
that the payment limit methodology is not based on empirical data, not
based on cost and is not equitable.
Response: The same statutory payment authority applies to RHCs and
FQHCs. This authority provides the Secretary latitude in determining a
payment methodology and in determining costs based on tests of
reasonableness defined in regulations. In order to implement this new
benefit in a manner consistent with the language of the law, we adopted
the RHC methodology for use in the FQHC program. We believe that the
Congress designed the FQHC program as a parallel program to the RHC
program. Not only is the payment authority identical but the core
services are also the same. The Congress added preventive services to
this core set of services for FQHCs, and these services are unique to
the FQHC program.
Inherent in the adoption of the RHC methodology is the use of the
productivity screens and an overall limit on payment. The RHC payment
limit established for independent facilities in 1978 and updated in
1982 was not only accepted by the Congress, it was written into law in
OBRA '87 as a test of reasonableness for costs of RHC services,
including clinical psychologist services, which were added to the
benefit in the same legislation. The law provided for an update to the
limit for 1988 and an annual update each year thereafter. We agree that
an annual update is important for the viability of both the RHC and
FQHC benefits. We also believe that, while it is critical to apply an
overall limit to ensure efficiency and economy, we must establish a
limit that takes into account the differences in the two benefits.
The FQHC methodology we created adjusts for differences between the
RHC and FQHC benefits using available cost data. We have made
adjustments to the RHC limit accounting for the general increase in
physician payments resulting from the physician fee schedule amounts, a
projected higher ratio in FQHCs than in RHCs of physician visits
compared to mid-level practitioner visits, the addition of primary
preventive services, and the fact that some FQHCs are located in urban
areas.
In constructing our preventive service adjustment, we used
allowable charge data. We believe that the calculation of this
adjustment is consistent with the methodology used to compute the RHC
limit, which used allowable charge data and is now statutorily set. We
do not see any conflict between our methods and the intent of the
Congress.
Comment: One commenter stated that the payment limits are
unreasonable with respect to actual reasonable costs. The commenter
stated that FFHCs in
[[Page 14653]]
Massachusetts received rates in the $78 to $88 range with a limit of
approximately $96. The commenter contended that the FQHC payment limits
understate the actual cost per visit for these section 329 and 330
grantees that were previously paid as FFHCs. Another commenter
recommended that we adopt the FFHC State-wide payment limits for the
next 3 years while the reasonable costs of FQHCs are studied. The
commenter stated that a limit should be developed based on future data.
Response: We do not believe it is appropriate to compare FFHC and
FQHC limits. The FQHC payment methodology and scope of services is
different from those in the former FFHC program. The comments indicate
confusion regarding the differences between the two benefits. Even with
these basic differences, we are concerned that we do not disadvantage
centers that were paid as FFHCs and that is why we are allowing an
exception for these entities for a 3-year period.
FFHCs were formerly paid on a ``cost related to reasonable charge
basis,'' which also resulted in an all-inclusive rate per visit based
on facility-specific costs. Application and computation of the FFHC
all-inclusive rate is significantly different from application and
computation of the FQHC rate. The FQHC all-inclusive rate is paid when
there is an encounter between a patient and a physician, physician
assistant, nurse practitioner, clinical psychologist, or clinical
social worker. The FFHC all-inclusive rate was paid only when there was
an encounter between a patient and a physician. The FQHC all-inclusive
rate per visit is calculated based on total allowable FQHC cost divided
by physician, physician assistant, nurse practitioner, clinical
psychologist, and clinical social worker visits. The FFHC rate per
visit was calculated based on total allowable FFHC costs divided by
physician visits. As a result, the FFHC all-inclusive rate formula had
a divisor of only physician visits thus yielding a higher rate per
visit.
Further, the scope of services for the FQHC and FFHC benefits is
different. Section 1861(aa)(3) of the Act identifies FQHC services as
physician, physician assistant, nurse practitioner, clinical
psychologist and clinical social worker services, and services and
supplies incident to the services of these practitioners. In addition,
preventive primary health services that a center is required to provide
under sections 329, 330 and 340 of the PHS Act are also included as
FQHC services. Medicare freestanding FQHCs are paid an all-inclusive
rate for these services for each encounter that meets the definition of
a visit. FQHCs could receive additional payment for Medicare covered
services that are outside of the FQHC scope of services.
The FFHC scope of services could potentially have included all
Medicare Part B services. Therefore, total allowable FFHC services
could have included a broader array of services. Medicare Part B
services outside of the FQHC scope of services (such as other
diagnostic and therapeutic services that a clinic obtains from an
independent laboratory) were covered FFHC services, and included in the
rate paid to FFHCs. All Medicare Part B services performed in an FFHC
were included in determining the all-inclusive rate and paid for under
the FFHC methodology for each FFHC visit. For these reasons, we do not
believe the FFHC payment limits are appropriate for the FQHC benefit.
Comment: One commenter stated that the use of FFHC information in
combination with RHC data to develop the FQHC payment limits does not
assure adequate reasonable cost reimbursement for all FQHCs. The RHC
and FFHC programs are optional programs in which organizations choose
to participate. Entities granted FQHC status under OBRA '90 that did
not participate in the FFHC program may be significantly different from
FFHCs and RHCs in case load.
Response: As discussed in a prior response, we believe that the
Congress designed the FQHC program as a parallel program to the RHC
program, and we used the RHC payment limit as a basis for developing
the FQHC payment limits. We adjusted the RHC payment limit based on
FFHC data for a projected higher physician visit mix and for the urban
differential. We understand the concern that the cost experience of
FFHCs may not necessarily be representative of the costs of FQHCs as a
whole. We analyzed 1990 data provided by the Public Health Service's
Bureau of Primary Health Care Common Reporting Requirements (BCRR)
Report to determine whether the cost per encounter would differ for
FFHCs and other section 329 and 330 grantees. The data indicate that
the median cost per visit for FFHCs was slightly higher than the median
cost per visit for community and migrant health centers that were not
paid as FFHCs. Since FFHC costs were actually higher than other section
329 and 330 grantees, we believe that using FFHC data would result in
adequate reasonable cost payments.
We also considered the application of a case mix adjustment;
however, we do not believe one is necessary given the FQHC scope of
services. We believe that, since the primary mission of the FQHC
program is to provide outpatient primary care services, the services
should not vary substantially from one patient population to another.
As discussed in the preamble to the June 12, 1992 final rule with
comment period, we will collect and analyze FQHC cost report data to
determine if a payment limit adjustment is necessary. If after
analysis, we find it necessary to adjust the methodology used to
determine the FQHC limits currently in place, we will issue a proposed
notice and the public will have an opportunity to comment.
Comment: One commenter stated that we should describe the specific
tests of reasonableness in regulation text so that these methods may
not be changed without public review and comment.
Response: We agree that a change in specific tests of
reasonableness used to determine the all-inclusive rate should receive
the benefit of public notice and comment. We will issue a proposed
notice and the public will have the opportunity to comment if it is
necessary for us to change the productivity or utilization screens used
to determine the FQHC all-inclusive rate or to change the methodology
used to calculate the FQHC payment limit.
Adjustment for Projected FQHC Visit Mix
Comment: One commenter stated that the Secretary did not use
factual data to determine the difference in cost created by the
projected difference in case mix. The commenter believed there is no
evidence that the ratio of physician to mid-level payments made under
Part B have any relation to cost.
Response: Since entities eligible for section 329, 330, and 340
grants will comprise the majority of entities qualifying for the FQHC
program, we anticipate that the frequency of physician services in
FQHCs will be comparable to the frequency of such services in the
former FFHC program, which consisted of section 329 and 330 grantees
paid an all-inclusive rate. As discussed in the preamble to the June
12, 1992 rule, we studied RHC and FFHC visit data to determine whether
there is a difference in the number of physician visits as a percentage
of total visits between the RHC benefit and FFHC program. Visit data
from RHC cost reports indicated that physician visits were 59 percent
of total visits while data from FFHC cost reports indicated that
[[Page 14654]]
physicians visits were 83 percent of total visits.
We recognize that no specific FQHC study has been conducted to
determine the differences in costs between the services of a physician
and those of a mid-level practitioner. We used the amount of payment
for nurse practitioners and physician assistants under usual Part B
rules as a measure of the cost differences between a physician and a
mid-level practitioner. Under Medicare Part B, the amount of payments
for nurse practitioners (section 1833(r)(2)(B) of the Act) and
physician assistants (section 1842(b)(12)(B) of the Act) are generally
75 percent (in the case of services provided in a hospital) and 85
percent (in the case of other services) of what a physician would be
paid for the same service. We used the midpoint of these two
percentages to arrive at 80 percent as proxy for the cost differences
between mid-level practitioners and physicians.
Lacking more specific FQHC cost data, we believe that the payment
amount under Medicare Part B is a reasonable basis for determining
average cost differences between visits of physicians and mid-level
practitioners and for increasing the payment limit to account for the
projected higher number of physician visits under the FQHC benefit as
compared to the RHC benefit. As discussed earlier, we plan to evaluate
actual FQHC cost data. After analysis, we will determine the
appropriateness of the visit mix adjustment.
Primary Care Family Practice Adjustment (15 Percent)
Comment: Section 6102 of OBRA '89 added section 1848 of the Act,
which is the authority for the physician fee schedule. During the first
year of transition to the physician fee schedule there was a general
increase in payment of 15 percent for services provided by primary care
and family practice physicians. As discussed in the preamble to the
interim final rule, we made an adjustment to the FQHC payment limits
accounting for this increase.
One commenter stated that the 15 percent adjustment to the payment
limit only covers the first year of the transition to the fee schedule.
The remaining 4 years to fully implement the fee schedule will result
in further increases. These increases should be recognized.
Response: We have given consideration to the commenter's position.
By 1996, the average payment amount for services typically provided by
family practice physicians will increase by an estimated 28 percent
under the fee schedule, as compared to reasonable charge payments.
Since our intent in creating and applying the family practice
adjustment is to reflect the circumstances of physicians being paid
under the fee schedule, we have decided to provide a comparable
increase to the FQHC payment limits. We are increasing the practitioner
component of the FQHC payment limits by 13 percent to bring the total
increase amount to 28 percent to simulate the estimated increase in
average payment amounts for primary care physicians. This adjustment
will be phased in over 3 years. For calendar year 1994, we have
increased the practitioner portion of the FQHC payment limits by 6.5
percent to correspond with the increase in payments for primary care
services which has resulted from the continued transition to the full
physician fee schedule. We previously announced this increase in the
RHC/FQHC Manual. We will increase the payment limits by 3.25 percent in
calendar year 1995 and calendar year 1996 to account for the full 28
percent increase.
The 28 percent increase is based on estimates published in the
Federal Register (56 FR 59618) regarding the physician fee schedule
regulation dated November 25, 1991; Table 1--Physician Fee Schedule
Impact By Specialty. The 28 percent increase reflects the original
estimation of the difference in payment amounts between what would have
been paid under the reasonable charges payment methodology as compared
to payments under the RBRVS fee schedule for services typically
provided by family practice physicians. We believe it provides the most
appropriate representation of the estimated differences in payment
amounts. We have decided not to reflect the impact of the Medicare
Volume Performance Standards since FQHC services are not subject to
these targets. By adjusting the FQHC limits, we would avoid
disadvantaging FQHC physicians and practitioners relative to physicians
paid under the fee schedule.
Comment: One commenter stated that payments for other practitioners
should also reflect the 15 percent increase.
Response: Implementation of the physician fee schedule resulted in
a general estimated increase of 15 percent in 1992 for family practice
physicians. We applied this increase to the practitioner component of
the payment limit which resulted in a $6.99 increase for fiscal year
1991. This increase applies to the payment limit for each FQHC visit,
mid-level practitioner covered visits, as well as physician visits.
Urban and Rural Determination
Comment: Two commenters indicated that the determination of urban
and rural is unclear. Specific concerns focused on the need for
clarification of specific population standards and whether adjustments
to the classification (as provided for hospitals in Sec. 412.230) are
applicable to FQHCs.
Response: The definition of urban and rural is based entirely upon
the most recent available data from the Bureau of Census and issued by
the Office of Management and Budget. To be classified as an urban
center, an FQHC must be located in a Metropolitan Statistical Area
(MSA) or New England County Metropolitan Area (NECMA). Primary
Metropolitan Statistical Areas (PMSAs) and Consolidated Metropolitan
Statistical Areas (CMSAs) are considered as urban for FQHC
classification purposes. FQHCs that are not in an MSA, PMSA, CMSA or
NECMA cannot be reclassified as an urban FQHC.
Urban areas can either be ``large'' or ``other.'' A large urban
area means an urban area with a population of over one million (or more
than 970,000 in NECMAs). An ``other'' urban area is an urban area that
is not a large urban area and at a minimum includes a city with a
population of 50,000 or more provided that the component county/
counties of the metropolitan statistical area have a total population
of at least 100,000. The intermediary classifies FQHCs based on these
criteria.
Urban and Rural Payment Difference
Comment: Many commenters expressed concerns regarding the urban
payment differential. Specific concerns include:
Historical differences in payment policy have affected the
recruitment and retention of qualified health professionals and have
caused a false perception that rural areas are less expensive.
Labor, transportation and other costs can be higher in
rural areas.
Rural centers may expand services to compensate for the
closing of small rural hospitals. Thus, they may be providing the only
available radiology and laboratory services in the area.
The FFHC study used to determine urban and rural cost
differences was not appropriate. Urban and rural visit mix and services
are not necessarily comparable and cost differences are not related to
location; cost differences are more likely the result of rural
facilities providing a more limited scope of
[[Page 14655]]
services. Therefore, we do not think this factor is relevant to payment
limits.
Response: Our analysis of FFHC all-inclusive rates indicates a
difference in urban and rural costs. FFHCs were authorized to provide
the same scope of services regardless of urban or rural status. The
analysis of FFHC all-inclusive rates included 128 urban and 85 rural
FFHCs throughout the country. The analysis indicates that the median
all-inclusive rate for FFHCs located in urban areas (as determined by
using Bureau of Census data) is 16.3 percent higher than the median
all-inclusive rate in rural areas. Since FFHCs were subject to the same
State-wide payment limit without regard to urban/rural location, rural
FFHCs did not have different incentives than urban FFHCs to hold down
costs. Further, we obtained data from the Public Health Service based
on the BCRR Report data and compared the cost per visit of 129 urban
and 260 rural Community/Migrant Health Centers (section 329/330
grantees) that did not participate in the FFHC program. The BCRR Report
cost data indicated that the cost per visit for services was
significantly higher in urban centers as compared to rural centers.
While different costs are reported on the BCRR Report as compared to
the Medicare cost report, we believe these data support our use of FFHC
cost data as proxy for urban and rural FQHC cost differences. We will
closely study urban and rural cost differences in the FQHC cost data
analysis.
We understand that rural centers might expand services to
compensate for the closing of small rural hospitals and that many of
these services may be outside of the FQHC benefit. While the expansion
of services may extend beyond the FQHC scope of services, the Medicare
per visit payment limits apply to covered FQHC services only. Medicare
FQHCs can receive additional payments through the carrier for Medicare
Part B services that are not included as FQHC covered services.
Therefore, we do not think this factor is relevant to setting the
payment limits.
Comment: Some commenters believed that the urban and rural payment
limit difference is inconsistent with general Federal policy direction.
They stated that the Congress recognized that urban and rural providers
should be treated equally by terminating the urban and rural
Prospective Payment System (PPS) payment differential in fiscal year
1995.
Response: We would like to clarify that the Congress has not
eliminated geographic payment differences for payment of PPS hospitals.
Effective in fiscal year 1995, there will be two PPS standardized
amounts, large urban and other. The rural and other urban PPS
standardized amounts will be combined into one amount and a separate
large urban standardized amount will continue to distinguish large
urban areas. The hospital wage index will be applied to these
standardized amounts. As such, payment amounts will generally be higher
in urban areas as compared to rural areas. Given the current data
limitations, alternative geographic payment limit adjustments are not
feasible at this time. As mentioned previously, we will closely study
urban and rural cost differences in the FQHC cost data analysis.
MEI Index
Comment: One commenter expressed concern that separate application
of the MEI to urban and rural payment limits will steadily exacerbate
the urban-rural differential.
Response: Although we recognize that the dollar difference between
urban and rural payment limits will increase, the percentage difference
of 16.3 percent will remain constant.
Comment: One commenter requested clarification regarding
publication of the MEI increase.
Response: The annual MEI updates applicable to the FQHC payment
limits will be announced in the RHC and FQHC manual, HCFA Publication
27 of the HCFA Program Instructions Issuances System.
We note that the preamble of the June 12, 1992 rule stated that
FQHC payment limits would be updated by the MEI applicable to primary
care physicians. We would like to clarify that in the absence of a
specific MEI applicable to primary care physicians, the FQHC payment
limits will be updated by the general MEI.
Exceptions Option
Comment: Two commenters expressed opposition to the exceptions
option. They stated that the exceptions option is an unreasonable
imposition creating unnecessary administrative costs. In addition,
requiring FQHCs to wait an entire year to file an exception will create
cash flow problems for those granted an exception. Regional payment
limits were also suggested as an alternative to the exceptions process.
Response: The exceptions process allows former FFHCs the
opportunity to retain the FFHC method of payment with minor adjustments
for the FQHC scope of services for a 3-year period under certain
conditions. No FQHC is required to seek an exception; rather a center
may choose this option if the center can document a disadvantage due to
a decrease in revenues as a result of the application of the FQHC
payment limit. As discussed in the preamble of the interim final rule,
this determination will be made based on a filing of the FFHC cost
report.
Any additional administrative costs resulting from the exceptions
option are allowable costs that can be included in the determination of
the all-inclusive rate. However, we expect exceptions to be limited in
number and do not expect former FFHCs to be adversely affected. We
believe it is essential that all centers, including former FFHCs, file
based on the FQHC methodology so that we can gather cost data for our
analysis.
We considered developing regional limits; however, we decided not
to do so. We believe that the Congress designed the FQHC benefit to
parallel the RHC benefit. Therefore, we want the FQHC payment methods
to be as consistent as possible with the RHC payment methods, which do
not include regional cost limits. As discussed earlier, we will collect
and analyze FQHC cost data to determine if any changes are necessary.
Billing Issues
Comment: Two commenters requested clarification of the billing
mechanism for non-FQHC services. One commenter noted that provisions
for assignment of physician claims directly to the center were
necessary so that the employment relationship between the physician and
center is not disrupted.
Response: In order to bill for non-FQHC services a clinic must have
a separate Part B billing number. The FQHC must obtain the billing
number from the Medicare Part B carrier. Entities that already have
supplier numbers for use in billing Part B carriers need to contact the
carriers' Provider Relations Staff to see if their FQHC status
necessitates the issuance of new Part B billing numbers. FQHC provider
numbers assigned for the purpose of billing the intermediary (Aetna)
cannot be used to bill Part B carriers. HCFA regional offices and
Medicare carriers have been requested to assist FQHCs that require new
Part B billing numbers.
We agree with the commenter on the issue of provisions of
assignment. Section 1842(b)(6) of the Act specifies that Medicare may
pay the center in which the physician provides services if there is a
contractual arrangement between the facility and the provider.
Therefore, there are existing provisions for assignment of physician
claims directly to the center.
Comment: One commenter noted the difference in billing practices
between Medicaid and Medicare, and
[[Page 14656]]
recommended that all FQHC services for both programs be billed on the
HCFA-1500 using Common Procedure Terminology (CPT) Codes.
Response: There is no requirement for Medicare and Medicaid billing
to be the same. Since payment for services covered under the FQHC
benefit is made on a cost-related basis, claims are processed by a
fiscal intermediary. All freestanding FQHC claims are processed by
Aetna. Provider-based FQHC claims are processed by the intermediary
that handles the main provider's claims.
The Medicare Fiscal Intermediaries' systems are set up to process
bills using the HCFA-1450 and the Carriers' systems are set up to
process claims using the HCFA-1500. The HCFA-1450 has different data
elements from the HCFA-1500. To use the HCFA-1500 for cost-related
payment would require a complete revision of the billing systems
maintained by our contractors.
To recap, freestanding FQHCs must use the HCFA-1500 to bill for non
FQHC services since they are not paid on a cost basis. The local Part B
carrier pays for such services subject to the routine Part B coverage
and payment provisions. Provider-based FQHCs bill the intermediary for
all services on the HCFA-1450.
IV. Provisions of the Final Regulations
For the most part, as stated elsewhere in this preamble, this final
rule does not change the provisions of the prior final rule on which we
solicited comments. Those provisions of this final rule that differ
significantly from the earlier rule are:
The definition of specialized nurse practitioner is
removed (Sec. 405.2401 and Sec. 405.2468);
A freestanding FQHC must terminate other provider
agreements at the same time it becomes an FQHC
(Sec. 405.2430(a)(1)(iii));
The services of FQHC staff may be furnished under contract
(Secs. 405.2450, 405.2468(b)(1), and 491.8(a)(3));
In the definition of ``visit,'' (now in Sec. 405.2463) an
allowance is made for two visits per day if the patient has a
``medical'' and an ``other'' health visit on the same day
(Sec. 405.2463);
Nurse-midwife services are added to the list of covered
FQHC services (Sec. 405.2446);
Perinatal care and tuberculosis testing for certain high
risk patients are added to the list of preventive services that are
covered by an FQHC (Sec. 405.2448);
Payment for pneumococcal and influenza vaccines and their
administration at 100 percent of Medicare reasonable cost is added to
Sec. 405.2466 (Note that payment for pneumococcal vaccine is not a new
provision, as it was included in the June 12, 1992 final rule);
We clarify that FQHCs must be located in a medically
undeserved area or serve a medically undeserved population
(Sec. 491.5);
RHCs, but not FQHCs, retain certification even if the area
loses its rural shortage designation (Sec. 491.5);
Clinical psychologists provide FQHC services without the
supervision of a physician (Sec. 491.8);
We clarify that we have adjusted the FQHC payment limits
to correspond with the estimated increase in payments for primary care
services resulting from the continued transition to the full fee
schedule. The current calendar year payment limits reflect this policy
and a further increase is forthcoming in 1995.
V. Collection of Information Requirements
This final rule does not contain any information collection or
recordkeeping requirements that are subject to review by the Office of
Management and Budget under the Paperwork Reduction Act of 1980 (44
U.S.C. 3501 et seq.).
VI. Regulatory Impact Statement
A. Introduction
We generally prepare a regulatory flexibility analysis that is
consistent with the Regulatory Flexibility Act (RFA) (5 U.S.C. 601
through 612) unless the Secretary certifies that a final rule will not
have a significant economic impact on a substantial number of small
entities. For purposes of the RFA, all FFHCs, FQHCs, and RHCs are
considered to be small entities. Individuals and States are not
included in the definition of a small entity.
In addition, section 1102(b) of the Act requires the Secretary to
prepare a regulatory impact analysis if a rule may have a significant
impact on the operations of a substantial number of small rural
hospitals. This analysis must conform to the provisions of section 604
of the RFA. For purposes of section 1102(b) of the Act, we define a
small rural hospital as a hospital that is located outside of a
Metropolitan Statistical Area and has fewer than 50 beds.
B. Provisions of the Final Regulations
This final rule incorporates, with only minor technical and
clarifying changes, the provisions of the final rule with comment
published June 12, 1992 (57 FR 24961) which provided for coverage and
payment of services provided by FQHCs, a category of health facility
established by section 4161 of OBRA '90 and modified by OBRA '93. FQHC
services are defined as the same type of primary health care services
provided by rural health clinics under the Medicare program, plus
preventive primary health services (services not previously covered by
Medicare). An FQHC is an entity that is receiving a grant under section
329, 330, or 340 of the PHS Act; a non-grant receiving entity that is
determined by the Secretary to meet the PHS Act requirements for
receiving such a grant; a facility that has been identified by the
Secretary as a comprehensive federally funded health center as of
January 1, 1990; or is an outpatient health program or facility
operated by a tribe or tribal organization under the Indian Self-
determination Act or by an urban Indian organization receiving funds
under title V of the Indian Health Care Improvement Act as of October
1, 1991. As of March 1994, there were 1,260 participating FQHCs.
C. Positive Effect of Regulations
In the initial regulatory impact statement, we indicated that the
provisions of the final rule with comment will expand Medicare payment
to community and migrant health center grantees and similar entities
that qualify as FQHCs and serve the working poor. We noted that
reporting requirements are less burdensome than previous requirements
under the FFHC payment methodology (FQHCs are required to submit 2 cost
reports annually, FFHCs were required to submit 3). In addition, these
provisions benefit both beneficiaries and FQHCs by expanding Medicare
coverage and payment to include primary and preventive health care
services furnished by physicians and other health practitioners.
D. Comments on Initial Regulatory Impact Statement
We received one comment on the initial regulatory impact statement
published in the Federal Register June 12, 1992. The commenter stated
that the final rule with comment failed to include a certification that
the rule would not have an effect on small entities. We disagree with
the commenter. The final paragraph of the regulatory impact statement
stated that we determined, and the Secretary certified, that the final
rule did not meet the requirements to be determined a major rule, nor
did it meet criteria as having a significant economic impact on a
substantial number of small entities.
[[Page 14657]]
E. Summary
Because this final regulation makes only minor technical and
clarifying changes to the final rule with comment published June 12,
1992, we are not preparing analyses for either the RFA or section
1102(b) of the Act, since we have determined, and the Secretary
certifies, that this final rule will not result in a significant
economic impact on a substantial number of small entities and will not
have a significant impact on the operations of a substantial number of
small rural hospitals.
In accordance with the provisions of Executive Order 12866, this
regulation was not reviewed by the Office of Management and Budget.
List of Subjects
42 CFR Part 405
Administrative practice and procedure, Health facilities, Health
professions, Kidney diseases, Medicare, Reporting and recordkeeping
requirements, Rural areas, X-rays.
42 CFR Part 491
Grant programs--health, Health facilities, Medicaid, Medicare,
Reporting and recordkeeping requirements, Rural areas.
42 CFR chapter IV is amended as follows:
PART 405--FEDERAL HEALTH INSURANCE FOR THE AGED AND DISABLED
Subpart X--Rural Health Clinic and Federally Qualified Health
Center Services
A. Part 405, subpart X, is amended as follows:
1. The authority citation for subpart X continues to read as
follows:
Authority: Secs. 1102, 1833, 1861(aa), 1871 of the Social
Security Act; 42 U.S.C. 1302, 1395l, 1395x(aa), and 1395hh.
Sec. 405.2401 Scope and definitions. [Amended]
2. In Sec. 405.2401, paragraph (b) is amended by removing the
definitions of ``specialized nurse-practitioner'' and ``visit.''
3. Section 405.2430 is amended by revising paragraph (a)(1)(iii) to
read as follows:
Sec. 405.2430 Basic requirements.
(a) Filing procedures. (1) * * *
(iii) The FQHC terminates other provider agreements, unless the
FQHC assures HCFA that it is not using the same space, staff and
resources simultaneously as a physician's office or another type of
provider or supplier. A corporate entity may own other provider types
as long as the provider types are distinct from the FQHC.
* * * * *
4. Section 405.2446 is amended by revising paragraph (b) to read as
follows:
Sec. 405.2446 Scope of services.
* * * * *
(b) FQHC services that are paid for under this subpart are
outpatient services that include the following:
(1) Physician services specified in Sec. 405.2412.
(2) Services and supplies furnished as an incident to a physician's
professional services, as specified in Sec. 405.2413.
(3) Nurse practitioner or physician assistant services specified in
Sec. 405.2414.
(4) Services and supplies furnished as an incident to a nurse
practitioner or physician assistant services, as specified in
Sec. 405.2415.
(5) Clinical psychologist and clinical social worker services
specified in Sec. 405.2450.
(6) Services and supplies furnished as an incident to a clinical
psychologist or clinical social worker services, as specified in
Sec. 405.2452.
(7) Visiting nurse services specified in Sec. 405.2416.
(8) Nurse-midwife services specified in Sec. 405.2401.
(9) Preventive primary services specified in Sec. 405.2448 of this
subpart.
* * * * *
5. In Sec. 405.2448(b), the semicolon at the end of each paragraph
is changed to a period, paragraph (b)(20) is redesignated as (b)(21),
paragraphs (b)(6) and (b)(19) are revised, and a new paragraph (b)(20)
is added to read as follows:
Sec. 405.2448 Preventive primary services.
* * * * *
(b) * * *
(6) Perinatal services.
* * * * *
(19) Risk assessment and initial counseling regarding risks.
(20) Tuberculosis testing for high risk patients.
* * * * *
6. Section 405.2450 is amended by revising paragraph (a)(1) to read
as follows:
Sec. 405.2450 Clinical psychologist and clinical social worker
services.
(a) For clinical psychologist or clinical social worker
professional services to be payable under this subpart, the services
must be--
(1) Furnished by an individual who owns, is employed by, or
furnishes services under contract to the FQHC;
* * * * *
7. A new Sec. 405.2463 is added to read as follows:
Sec. 405.2463 What constitutes a visit.
(a) Visit. (1) A visit is a face-to-face encounter between a clinic
or center patient and a physician, physician assistant, nurse
practitioner, nurse-midwife, or visiting nurse.
(2) For FQHCs, a visit also means a face-to-face encounter between
a patient and a qualified clinical psychologist or clinical social
worker.
(3) Encounters with more than one health professional and multiple
encounters with the same health professional that take place on the
same day and at a single location constitute a single visit, except
when one of the following conditions exist:
(i) After the first encounter, the patient suffers illness or
injury requiring additional diagnosis or treatment.
(ii) For FQHCs, the patient has a medical visit and an other health
visit, as defined in paragraphs (b) and (c) of this section.
(4) Payment. (i) Medicare pays for two visits per day when the
conditions in paragraph (a)(3) of this section are met.
(ii) In all other cases, payment is limited to one visit per day.
(b) Medical visit. For purposes of paragraph (a)(3) of this
section, a medical visit is a face-to-face encounter between an FQHC
patient and a physician, physician assistant, nurse practitioner,
nurse-midwife, or visiting nurse.
(c) Other health visit. For purposes of paragraph (a)(3) of this
section, an other health visit is a face-to-face encounter between an
FQHC patient and a clinical psychologist, clinical social worker, or
other health professional for mental health services.
8. Section 405.2466 is amended by adding a new paragraph (b)(1)(iv)
to read as follows:
Sec. 405.2466 Annual reconciliation.
* * * * *
(b) * * *
(1) * * *
(iv) For rural health clinics and FQHCs, payment for pneumococcal
and influenza vaccine and their administration is 100 percent of
Medicare reasonable cost.
* * * * *
9. Section 405.2468 is amended by revising paragraphs (b)(1) and
(b)(3), and (d)(2) to read as follows:
Sec. 405.2468 Allowable costs.
* * * * *
[[Page 14658]]
(b) * * *
(1) Compensation for the services of a physician, physician
assistant, nurse practitioner, nurse-midwife, visiting nurse, qualified
clinical psychologist, and clinical social worker who owns, is employed
by, or furnishes services under contract to an FQHC. (RHCs are not paid
for services furnished by contracted individuals other than
physicians.)
* * * * *
(3) Costs of services and supplies incident to the services of a
physician, physician assistant, nurse practitioner, nurse-midwife,
qualified clinical psychologist, or clinical social worker.
* * * * *
(d) * * *
(2) Screening guidelines are used to assess the costs of services,
including the following:
(i) Compensation for the professional and supervisory services of
physicians and for the services of physician assistants, nurse
practitioners, and nurse-midwives.
(ii) Services of physicians, physician assistants, nurse
practitioners, nurse-midwives, visiting nurses, qualified clinical
psychologists, and clinical social workers.
(iii) The level of administrative and general expenses.
(iv) Staffing (for example, the ratio of other clinic or center
personnel to physicians, physician assistants, and nurse
practitioners).
(v) The reasonableness of payments for services purchased by the
clinic or center, subject to the limitation that the costs of physician
services purchased by the clinic or center may not exceed amounts
determined under the applicable provisions of subpart E of part 405 or
part 415 of this chapter.
* * * * *
B. Part 491 is amended as follows:
PART 491--CERTIFICATION OF CERTAIN HEALTH FACILITIES
1. The authority citation for part 491 continues to read as
follows:
Authority: Sec. 1102 of the Social Security Act (42 U.S.C. 1302)
and sec 353 of the Public Health Services Act (42 U.S.C. 263a).
2. In part 491, the term, ``Federally qualified health center'' is
changed to ``FQHC'' wherever the term appears.
3. Section 491.5 is amended by revising paragraphs (a) and (b)(1),
and adding new paragraphs (e) and (f) to read as follows:
Sec. 491.5 Location of clinic or center.
(a) Basic requirements. (1) An RHC is located in a rural area that
is designated as a shortage area.
(2) An FQHC is located in a rural or urban area that is designated
as either a shortage area or an area that has a medically underserved
population.
(3) Both the RHC and the FQHC may be permanent or mobile units.
(i) Permanent unit. The objects, equipment, and supplies necessary
for the provision of the services furnished directly by the clinic or
center are housed in a permanent structure.
(ii) Mobile unit. The objects, equipment, and supplies necessary
for the provision of the services furnished directly by the clinic or
center are housed in a mobile structure, which has fixed, scheduled
location(s).
(iii) Permanent unit in more than one location. If clinic or center
services are furnished at permanent units in more than one location,
each unit is independently considered for approval as a rural health
clinic or for approval as an FQHC.
(b) Exceptions. (1) HCFA does not disqualify an RHC approved under
this subpart if the area in which it is located subsequently fails to
meet the definition of a rural, shortage area.
* * * * *
(e) Medically underserved population. A medically underserved
population includes the following:
(1) A population of an urban or rural area that is designated by
PHS as having a shortage of personal health services.
(2) A population group that is designated by PHS as having a
shortage of personal health services.
(f) Requirements specific to FQHCs. An FQHC approved for
participation in Medicare must meet one of the following criteria:
(1) Furnish services to a medically underserved population.
(2) Be located in a medically underserved area, as demonstrated by
an application approved by PHS.
4. Section 491.8 is amended by revising paragraphs (a)(3), (a)(6)
and (b)(1)(i) to read as follows:
Sec. 491.8 Staffing and staff responsibilities.
(a) Staffing. * * *
(3) The physician assistant, nurse practitioner, nurse-midwife,
clinical social worker, or clinical psychologist member of the staff
may be the owner or an employee of the clinic or center, or may furnish
services under contract to the center.
* * * * *
(6) A physician, nurse practitioner, physician assistant, nurse-
midwife, clinical social worker, or clinical psychologist is available
to furnish patient care services at all times the clinic or center
operates. In addition, for rural health clinics, a nurse practitioner
or a physician assistant is available to furnish patient care services
at least 60 percent of the time the clinic operates.
(b) Physician responsibilities. (1) The physician--
(i) Except for services furnished by a clinical psychologist in an
FQHC, which State law permits to be provided without physician
supervision, provides medical direction for the clinic's or center's
health care activities and consultation for, and medical supervision
of, the health care staff.
* * * * *
(Catalog of Federal Domestic Assistance Program No. 93.773,
Medicare--Hospital Insurance; and Program No. 93.774, Medicare--
Supplementary Medical Insurance Program)
Dated: October 6, 1995.
Bruce C. Vladeck,
Administrator, Health Care Financing Administration.
Dated: March 18, 1996.
Donna E. Shalala,
Secretary.
[FR Doc. 96-7787 Filed 4-2-96; 8:45 am]
BILLING CODE 4120-01-P
Continue your research in ChatGPT or Claude
Connect Omnilex to search the legal corpus from your AI assistant.